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*" 7-^^^ ■ YS ^^^ ;* "Tr- 




AMERICAN Decisions 


The Cotjbts of the Seyeral States 

iBOii TBB lABLinrr rasuB or thb siAn bdobib to 


Bt A. 0. FBEEMAN, 

voL :s:xxvii. 





•' O 1 7 ^ p 


b Um Ottot of th* lAnifatt of Ommpml il 

American Decisions. 


The cases re-reported in this Yolume will be foand 
originally reported in the following State Beports: 

llADn Befobts. YoL 20. 1841. 

OiLL & JoHHsos's MABTiiAin) Bltiffeaii i^A" ^^* 1841. 


Mbtqalt's MAfWAnHUBjp rrB Bepobts. - YoIb. 2, 8. 1811-1842. 

Howabd's MTBCTfWTPgi Bkfobto. - - - Yol. 6. 1841. 

MiBsouBi Bkpobts. ...---- Yol. 7. 1841. 

Nkw Hampshibb BxpoBTB. Yol. 12. 1841-1842. 

Habbiboh's Nxw Jbbsbt Bepobts. - - Yol. 8. 1841. 

Werdzll'8 Nbw Yobx Bepobts. - . - Yols. 25, 26. 1841. 

Hill's Nkw YoBK Bbpobtb. ... .Yols. 1,2. 1841. 

Paige's New Yobx Ohangbbt Bepobts. . Yol. 9. 1841. 

Iredell's N. Oabouna Law Bepobts. - Yol. 2. 1841. 

Ohio Bepobts. Yol. 11. 1841. 

Whabtoh's PEinrszLTABu Bepobts. - - YoL 6. 1841. 

Watts & Sebgeaet's Pehh. Bepobts. - Yols. I9 2, 8. 1841. 

MoMullan's S. Cabolina Law Bepobts. - Yol. 2. 1841. 

MoMullab's S. Cabolina Eq. Bepobts. - Yol. 1. 1841. 

HuMPHBETs' Tehbesseb Bepobis. ... Yol. 2. 1841. 

Yebmont Bepobts. ...... -Yol. 18. 1841. 

Leigh's Yibgihia Bepobts. . • • - • Yols. 11, 12. 1841. 

Alabama Bepobts. ...... -Yols. 8^4. 1841. 

AnTATwiAg Bepobts. ..«««•• Yol. 4. 1842. 

AMERICAN Decisions 



AJbermmfafo T. Kbok j^^TSS^^^T | »AWbMn» 721 

Allen and Dean r, Bradford JudgmenU 8 Alabama 689 

AUflhoiiBe ▼. Bamaay Foreign eontrael.., 6 Wharton... •••• 417 

Amerioan Ina. Gow ▼.Bryan Inmranee 26 Wendell 278 

Anderacm ▼. Critoher {^^^^Ln. ( " Gill & Johnaon. . 72 

Anderaon ▼. Wanaer PaaintrMp 5 Howard 170 

AndrewaT. Boaoh Cutiom 3 Alabama 718 

Aimiatead ▼. C(HnmonwMlt]i....C%aaeN0« 11 Leigh 633 

Arthur ▼• Broadnaz Jbneaofe 3 Alabama 707 

Atldna t. Bordman EaaemeaU 2Metca]f 100 

Baboook t. Herbert Ferrin 3 Alabama 605 

Bailey ▼. Oarleton'. Advent poneaion. . 12 NewHampahire. 100 

Bank of Mancheater ▼. B$aeQM..8uret^hip 13 Vermont 594 

Bank of Whitehall T. Pettea BxtcuiUm 13Vermont. 600 

Bamea T.Moody RdcMeqfenrifn*.. 5 Howard 172 

Baxter v. Bradbnry (kvenanU 20 Maine 49 

Bayard ▼. Shnnk • PaymaUinhUla... 1 Watts ft Serg.. 441 

Biahop ▼• Day Suretyship 13 Vermont 682 

Bitaer ▼. Shnnk Judgments 1 Watts ft Serg.. 469 

Bloom et aL ▼. Bnrdick Surrogate's sake. . . 1 Hill 299 

Blythe ▼. Lovinggood Immoral corUraet, , 2 Iredell's Law. . . 402 

Bolton ▼. Hamilton OusUr 2 Watts ft Serg. . 509 

Bradley ▼. Ckimmisaionera New county 2 Hnmphreya .... 563 

Brigga ▼. Parkman Fraud, assignm'ts, . 2 Metcalf 89 

Brooka T. White Sati^aetion 2Metcalf 95 

Brown ▼. Dickson Levy 2 Humphreys .... 560 

Brown ▼. Taylor Warranty 13 Vermont 618 

Bullard ▼. Copps Adverse possession, . 2 flunphreys. . . . 561 

BulUt ▼. Thateher Indorsers 5 Howard 175 

Borden ▼. Thayer Cfrant qf reversion. 3 Metcalf 117 

^yan▼. Thompson Avford 12 Leigh 680 

%■ k« 

4 Cases Refobted. 

Campbell T. Wallaoe PartUUm 12 KewHampahire. 219 

Caplioger t. Sullivan Wi/e*a choee$ 2 Homphraya. . . . 575 

Carpenter V. Branch Bailments 13 Vennont 587 

Carpenter ▼. Griffin and Spanoer. LandlordandtenatU 9 Paige's Gh 896 

Carpenter V. Herrington Exen^aCion 25 Wendell 239 

Carpenter T. Hollliter 0mntor^aMdwu^m.lZVeuEMtA 612 

^^RoUdli^^'^ l^^^^''^ ^^^ 323 

Chambers V. Bedell Trespass 2 Watts ftSevg.. 506 

Chase V. Bumham | ^'^^^J^.'^ }l3 Vermont. 602 

Chick V. TreyeU Consideration. 20 Maine 68 

°"'p;Uer'*Co.'* ^''"^ }*-«-•• *-*"««• 7« 

Clarke v. Curtis Vendor and vender. 11 Leigh 625 

Coffinan v. Hampton Auoiions 2 Watts ft Serg. . 511 

Coleman v. Rowe Independent counts. 5 Howard 164 

Osmfortv. Matkcr ..WiUs 2 WatU &Serg.. 523 

Commonwealth ▼. Load Prior cmfieHon,.. SMetcalf 139 

Connell v. Woodard Parties 5 Howard 173 

Ooveney V. Tsnnafaill et al Attorney and dient. 1 Hill 287 

Cox V. liTingston Attorney 2 Watts ft Seig.. 486 

Craig T. Bale Way-going crop. • . 1 Watts ft Sezg. . 477 

"^^ZZ-oU^^Jl^^l Vendcra^^end^. 4Al.b«na 726 

Cummings ▼. Arnold Varying contract. . 8 Metoalf 155 

Davidson v. Root Ifewamnty 11 Ohio 411 

Stavis V. Frenoh Mc^rsandadnMnMMtAme 

JJennUcm^ThonartonMn^ 20 Maine 

."^i«X1^^ 1 12NewHan.pdure. 203 

Dickey V. linsoott OmtrYs /or «eniio8i.20 Maine 66 

Doane V. Keating G^oierti^ avsro^e. ... 12 Leigh 671 

Dorsey v. Sheppard Ktmcupativs toiUs, • 12 Gill ft Johnson. . 77 

Durham ▼. Aldan Estoppd 20 Maine 48 

Eagle V. White Carriers 6 Wharton. 434 

Elliot V. Abbot Cashier <^ haaik.. .12 New Hampshire. 227 

Emerson v. Udall .Bhnjoimng award, . . 13 Vermont. 604 

Felder v. Bonnett Boundaries. 2 McMnUan'sLaw 645 

Finney ▼. Cochran LiTnitaitions 1 Watts ft Serg. . 450 

Foster v. Mabe Fixtwres 4 Alabama 749 

Fosterv. Mansfield Deeds SMetcalf 154 

Foulk ▼. McFtarlane Fraud 1 Watts ft Serg. . 467 

Franklin Fire Ins. Co. ▼.Undlay./nsvnz/ice 6 Wharton. 430 

Qadsden ▼. Lance .Statute qfjrauds... 1 McMnllaa's Eq. 548 

Oale V. Tappan Power qf attomey..l2 NewHampshire. 114 

0««»«fl-v.P«.yrt.t1..{j^:;g^&.l 4AUUaa 74S 


Cases Repobted. 5 

QiUm T. Willlaan Pleading and prac, 8 Alabsina. 692 

CtoodnovrT. Hour*.... , , . ,Neg. uu tt m»e nit8, , .20 Maine 46 

Qoodmm t. Carroll Ddiverjf qf deed, . • 2 HnzniihieyB.. . . . 564 

Qordonr, HntehinaaL Carriers 1 Watts &Sei^.. 464 

Grsfflm ▼. Tottenham Co4enancy I Watts ft Serg. . 472 

OnntT. VuaSolMMiboiriK Ommtitm ad UieuL. 9 Paige's CSi 399 

Ofay ▼. Mmim^hsii J^ar. Oo. . .Corpowatipat. 2Watt8 ft Serg.. 660 

Gregg T. Grawfocd.... Sureti^ 4 Alahama 799 

Griffin T.Bizby Bomukaiu 12NevHampBhim. 225 

Hansbrongh's Exeoators ▼. ILooB.Ademp'n o/legadeB,l2 Leigh 659 

Harwell V. WoidHUBL Po/ffmefdhff eker^, 2 Hnapfanys . . . . 572 

Hawley ▼. Bradford Hutbaadamd wtfe. . 9Paige^a.Ch 899 

Hicks ▼. Goode. Eecrcw 12 Leigh 677 

Higgins ▼. Brown Moneifhadamdre^dM Maine 54 

House V. FoBer Cthtencmey 13 Vermont. 58S 

HoytT.Swift Oamiahimmt, ISVetmont 586 

HnntT.Hnnt JHmeiem SMetcalf 189 

Johnson v. Brown Mtdt^fariaueneee, . . 2 Humphreys . . • • 566 

Ji^mson ▼. Jotdaa^ Eaaenienta, 2Metealf 85 

Jonesv. State OJiaaibondi 7Mi8Bonri 180 

Kennedy's Ex*!! T« Geddaa Aeoq^ianee SAlabana 714 

KingT.King Veetedlegaey IWattoftSerg.. 459 

King ▼• Lena. •••.,.• LkmUUitme 7 Missouri. 187 

King ▼. BichanLi ,^.^,,,^^,,,,BaiUaauni$ 6 Wharton 420 

KyleT.Braas {^^^^^^^f^. \ ^AlahanuL. 70& 


Laney. L0vi]lian«.*«».M. Quaraa^ 4 Arkansas 769 

liodyard T. Butler FhritidulmU tranter 9 Vtdgp*M CSh 379 

Lehman ▼. Jones .... • Demand 1 Watts ft. Serg . . 45& 

Libhart ▼. Wood Servants 1 Watts ft Serg . . 461 

Lorton y. SWa. Leureewif 7 Missouri 179 

LowiyT. HaU. Coir^ o/ 2flMM. . . . 2 Watts ft Serg . . 496 

Lyon ▼. Jerome Delegating pnoer . .26 WendeU 271 

MaanT.BufoKd Oarmskmeni 8 Alabama 691 

McComhav.MoKflODaD DagmMgee^eali 2 Watts ft Serg . . 50& 

McFarland ▼. State Bank. BilUoferedU 4 Arkstasas 761 

Mclntyre V. Carrer Liene 2 Watts ft Serg . . 519> 

McKennan V. PhiUi^e. Hitehamdandwffe.. 6 Wharton. 48a 

McLain v, Carson's Executor. . . .Partnership 4 Arkansas 777 

McLaren t. Watson's Bxeeuton . . (hwsranAy 26 Wendell 260 

M^Rae V. Stokes AvAent^fg reifrda 8 Alabama. 698 

Mead et aL ▼. Figh ft Blue Fyxr(heomingUind,» 4 Alabama 742 

Mitchell r. Brans ExeaitUms 5Howard 169 

Moore v. lUton F^udalenttmi^fer. 3 Ahibanub. . . .\ . . 701 

Morris Canal Company r. Emmett. Vender and vendee. 9 Paige's Ch 388 

Mott ▼. Bobbins and Another. .. .iSrAer{^« IHill.. 286 

6 Cases Reported. 

N«lM>n T. Boynton. ^StatuUqf/roMd:.. SMetcalf 148 

N,w«g« «d Stc-ta-te V. j ^^^ llOai*Joh»on.. 74 

KewBom t. Andenon TreepaaB. 2 Iredell's Iaw. . . 406 

Newton T. Booth » Jury trial 13 Vermont 596 

Oaki ▼. WoUer NoUoe to ^nawmtor. 13 Vermont^ 

Obangh V. Finn • lAM 4 ArkuiflM 773 

Oriental Bank ▼• Haakins Fraud, eoitwyofieet. 8 Metcalf 140 

Overdeer ▼. Lewis TetumtiUfoia 1 Watts ftSezg.. 440 

Owen V. Henman. ..•• Disturbing meeUngs. 1 Watts ft Serg. • 481 

Flarker r, Catler Milldam Co. . ..Navigable tflotert. .20 Maine 56 

Ptoker V. PtoD's of Locks and 1^^ pomttiim, 3 Metoalf 121 

Parks V. Moore Iie$ judicata 13 Vermont. 580 

Payne t. Mayor etc. of Mobile. . .Asngnmeni 4 Alabama 744 

People ▼. Ck>gdell Larceny 1 Hill 297 

People T. Kendall Ihlee preteMee., ..25 Wendell 240 

People ▼. McLeod ^"^^'"''^''^^^''^ '^^*''i 25 Wendell *** f ^^ 

Perry t. Harrington AcUons 2 Metcalf 98 

Planters' Bank t. Markham Utage 5 Howard 162 

Polk V. Plnmmer Offidalbanda 2 Humphreys ... . 566 

Porter ▼. Foster Convernon 20 Maine 59 

Poseyy. Garth Contr^U/or eervieu. 7 Missouri 183 

Post T. Garmalt Mutual DAU. 2 Watts ft Seig . . 484 

Pott T. Nathans Surety 1 Watts ft Serg . . 456 

Potter T. Dillon Partnership 7 Missouri 185 

Potter T. Washburn C%a9iye<2/'PoMen'n. 13 Vermont 615 

Pugh T. Chesseldine Mietake 11 Ohio 414 

PughT.Qood Partper/onnanee.. 3 Watts ft Serg . . 534 

Putnam T. Wise Learing for crop,,. 1 Hill 309 

Pyle V. Peonook. Fiacturee 2WatUftSerg.. 517 

Bamsay T. Joyoe...M. ...»»»« Married women,,,* 1 McMnUan's Eq. 550 

BankT.Hill Avfards 2 Watts ft Seorg . . 483 

Baynolds v. Garter Usury 12 Leigh 642 

Keif V. Bapp Carriers 3 Watts ft Seorg . . 528 

Bemsen v. Brinckerhoff Wills 26 Wendell 25 1 

Bigs ▼. Cage Death qf principal. 2 Humphreys. . . . 559 

Boberts v. Marston Ineumbranees, 20 Maine 52 

Boss V.Milne Pleading and prac.l2JM^ 646 

ByerssT. Wheeler. Pan>;PaifMo9i.... 25 Wendell 243 

ftamson T. Thornton ,.^,.,Ileg. instruments,,, 3 Metcalf 135 

Saunders t. Hatterman Misrepresentations, . 2 Iredell's Law. . . 404 

Sayre v. Craig-. Indep*d't covenants. 4 Arkansas 757 

School Directors ▼. James Domicileo/children. 2 Watts ft Serg.. 525 

Shufelt 7. Shufelt Estoppel 9 Paige's Ch 381 

Slanghter y. Commonwealth Murder 11 Leigh. 638 

:SmalIwood ▼. Norton Attorneys 20 Maine 

Cases Reported. 7 

SliiffDcdT.AMm I ^^**ll2S£*iii-_ \ IHffl SM 

8teto ▼• Diniok JSro&eMeofjwf 12NewHMBiMhin. 197 

State T.OreaWcrksM. lb M.Oo.a9r]iof«floM 20Mai]ia :« 88 

T. Priod IndktmmU 12 GUI ft Jdhimn.. 81 

T«gyckv,I>BUwMWMidB«r-j^^,lg,^^^ _ 8HMiiMO. 288 

ThftTWT. Hvtehinioai.. TVover 18 V«riiioiit 007 

Tbnll ▼. Walkr Deerte$ 18VeniM»t. 802 

TVnU T. Bartmui ) ^^^''^^'^JSctaJiiy} ^MetoOf 120 

United StetMT.Wbltoet At... •Z;iiiii<a«oiu 2HiU 874 

Uilier ▼. Serenaoe LSbd 20ICiiiM 88 

Van Hook ▼. Whitlook. rmohencp 28W«iid6ll 240 

Voorhli V. Freeman. itomvi 2 Watfei ft Sefg • • 490 

Waddell ▼.Cook Abumqf proem ... 2 Hill 872 

Wade ▼. Pettibooe AUome^amddknt.ll Ohio 400 

Wakefield ▼. Campbell ••..^i{iiilN<iCralor'«Mfe.20Biaine 00 

Wallace ▼. Shaffer 1Ukboiid§ 12 Leigh. 087 

WeedT. JeweU Aa^gmmanU 2Metoell 115 

Wentworth ▼. Day iMer't liea. OMetoalf 145 

Wheatl^8HeiraT.QdhODB....Z>0i0er,M6ro9aliofkl2 Leigh. 064 

WhelpIeyv.VanBppe PkadkigtmApmc. 9 Paige's Ch 400 

Wiate ▼. Hopklae Acotptar 8 Watte ft Serg . . 542 

Woodward ▼. Harbio AmmMi ntmm . . . 4 Alabama 758 

Woodworth T. Downer PartMrMp 18 Vermont Oil 

WjmanT.Bae Tukk^aMk* 11 Oill ft Johneon . 70 




. 710 

r. Burlay < 

Abbott T. A^. ..168> 160^ OH 738 

Abbott V. filosBom 322 

AbbotU ▼. Buty 324 

AbLoman ▼. Booth 200,201, 203 

Abraham ▼. Flarton 406, 497 

Ackley V. Tarboz 306 

Ackley v. Pygart 368 

Adams ▼. Bamaa 61 

Adama v. Garter 322 

Adams v. Emermi 106 

Adams ▼. Lishar 701 

Adams ▼. MoKeaaon 820 

AfUms V. Morrisoii...61, 02, 64, 66 
Adams v. Saratooa ft W. B. R. 306 

Addison t. Bomia • 610 

JBtmi F. Ins. Ca ▼. Taylor 46 

Aiken ▼. Smith 318 

AikinT. Back 326 

Amslie ▼. Wilson 66 

Alden ▼. Qilmore 193 

Alaaranderv. AlerMider 64 

Alwrawiar t. Grittandm 679 

Alexander T. Looky 464 

Aleyajiderv. WeatnKweiand Bank. 464 

Aldrioh T. JeweU 718 

Alger T. SooTiUa 163 

AllLiT.Bolan 607 

AUtn'sEstote 638 

AUan T. Bradford 601 

Allen ▼. Kingibary 226 

Allen ▼. Rightmere 266 

Allen ▼. Sayward • 62 

Allison V. Mathien 324 

Alsop ▼. Mather ••... 37 

Alston ▼. Jonea SM^ 306 

Alwoodv. Bockmaa. 318 

Ambler V. Bradley 312 

AmesT. Foster 163 

Anderaon, JEx poris. ••••• •••••• 203 

Anderson ▼. Andoorsoii. 678 

Anderson ▼• Davis 163 

Anderaon t. Brake 456 

Anderson T. Qveen 633 

Anderson T. Hayman 160, 419 

Anderaon t. Jaoohaon • . • . 711 

Anderson v. Roberts 880 

Andover v. Orafton 200, 211 

Andrew v. Dietexich 324 

Andrews ▼. Baggs 66 

Andrews V. Estes 175 

Andrews ▼. Hoovw - • 607 

Andrewa ▼• Morae ••... 683 

Andrews V. Soatiiwick 04 

Anonymoos. . .289, 422, 668, 643, 653 

App ▼. Driesbach 462, 464 

Apthorp ▼• Baekns 600 

Apthorp T. Shepard 48 

Arayo v.* CorreU 84 

Armiger v. Clarke 640 

Armory t. Delamirie. 008 

Armstrong's Appeal 468, 671 

Armstrong ▼. Koknell 322 

Armstrong T. Hnston 409 

Armstrong ▼. Prewitt 464, 714 

Armsworuiy V. CheshirB 76 

Arnold ▼. Gamp 48 

Arnold ▼. Mnndy 68 

Arnold t. Lyman 654 

Arnold ▼. Bngglea 678, 679 

Arrington T. Screws 681 

Arthur ▼. Bockenham 127 

Arondell t. Phipps 01 

Aflcham v. Smith 662 

Ashbnmer t. Macgnira. 669 

AahurstT. Martm 746, 748 

Aston ▼. Morgan 772 

Atkinv. Acton 462 

Atkins T. Bordman 101 

Atkinsv.Hill 36 

Atkins V. Kinnon 307, 308, 300 

Atkins T. Sazton 374 

Atkinson v. Bemis 212 

Atkinson t. Great W. Ins. Co. . . 285 
Atlantic Ins. Co. t. Stonow.279, 284 

Attorney-general ▼. Crtapin 460 

Attorney •general v. Stevens 69 

Atwoodv.Cole 633 

Atwood^T. Belianee T. Co. 438 

Austin T.Hall 223 

Avktrey v. Frieae 322 

ATerill ▼. Lyman 612 

Avery v. Lewis .76, 601 

Ayerv.Hay 718 

Ayerv. Wanen 711 

Babb V. Elliott 681 

Babcook V. Herbert 467 

Babcock V. Wilson 761 

Baca V. Ramcs 659 

Back V. Stacy 113 

I Baoon V. Bronson 405 


Oases Cited. 


Bacon v. Brown 625 

BaconT.Oobb 161 

Badger T. Phinnev fti4, 825 

Badserv. Titoomb 99 

Badlam ▼. Tucker 41, 142 

Badrich t. Stevens 669 

Bagottv. Orr 68 

Buley ▼. Fillebrown 322 

Bailev v. Johnson 157 

Baird T. Baird*8 Heirs 695 

Baker v. Arnold 296 

Bakery. Fales ^ 325 

Baker V. Lorillard 245 

Baker v. Moody 692 

Baker ▼. Stackpoola 625 

Baker t. Wheaton 250 

Baker V. Wheeler 6Q» 659 

Baldwin t. Gray 420 

Baldwin v. Mnnn 731 

Ball V. Montgomery 552 

Ballard V. Raynor 388 

Ballard V. Walker 157 

Ballon V. Talbot 69 

Balmain v. Shore 460 

Baltimore Tnmpike, Case ol.... 209 

Bancroft v. Stanton 690, 691 

Bangs V. Mcintosh 300 

Bank V. Balliet 449 

Bank of Chenango t. Qyde.228, 230 

Bank v. Gk>dden 725 

Banky.Willard ^ 669 

Bank of Ghillioothe ▼. Swayne. . 645 
Bank of Columbia T. Hsgner. .. . 165 

Bank of Elizabeth ▼. Ayen 645 

Bank of Illinois ▼. Sloo 718 

Bank of Kentucky T. Clark 769 

Bank of Montoomery ▼. Walker 544 
Bank of New York ▼. Livingston 771 

Bank of S. C. ▼. Myers 178 

Bank of U. S. V. Dandridge 218 

Bank of U. S. ▼. Patton 744 

Bank of Utica ▼. MerMreau.129, 296 

Bank of Utica v. Utica 76 

Bank of Washington v. Triplett 163 

Banorgee ▼. Hovey 216 

Barber v. Brace 676 

Barbour v. Watts 700 

Banl V. Wood 98 

Barden v. Keverbeig 710 

Barelli t. Brown 48 

Barford v. Stuckey 646 

Baring v. Calais 614 

Barker v. Mechanics' Ins. Co. . . 69 

Barker V. Miller 607 

Barkhamstead ▼. Case. . 168, 694, 738 

Barlowv.Cobb 270 

Barlow v. Myers 270 

Barnard V.Pope 126 

Barnes V. Bailey 732 

Barnes V. Dean 609 

Barnes v. Hedley 644 

Barney v. Brown 617 

Bamum v. Hempstead 748 

Barreli V. Trussell 151 

Barrett V. French .•••• 615 

Banettsv. Patterson 687 

Banington's Case 265 

Barrow, J^ parte 311 

Barnr v. Bush 37 

Bartlett V. WilUams 142 

Barton V. Williams 373 

Baakinv. Baskin 260 

Basan V. Brandon 668 

Bass V. Mayor of NadiviUe 633 

Batesv.Daady 579 

Bates V. James 374 

Batsford V. Eebbett 460 

Batty V. Carswell 61, 63 

Bangh v. Bead 670 

Bayard v. Atkins 461 

Bayard V. Shunk 449 

Bayler ▼. Commonwealth. ...... 128 

Bayles v. Commonwealth 128 

Beach V. Steames 889 

Bealv. Nason 64 

Beale v.Beale 64 

Bealy V.Shaw 108 

V. Atwater 169 

V. Famham 605 

v.Herrick 405 

Beanv. Mor«m 711 

Beardv.Kirit 207 

Beard V.Webb 713 

Beardsley V. Eni^t 76 

Beardsley V. Boot 65, 411 

Beardsley V. Warner 177 

Beaumont v. Crane 816 

Beck V. McQillis 668 

Beckley V. Newland 128 

Beecher v. Parmele. . . .647, 614^ 616 
Beekman v. Saratoga etc. B. B. . 238 

Beers v. Hawley 614 

Belden v. Seymour 620 

Belknap V. Sealey 890 

Bell V.Andrews 638 

Bell V. Bell's AdmV 711 

Bell V. Chaplain 812, 653 

Bell V. Layman 69 

Bell V. TwUight 130 

Beltzhoover v. Blackstock 297 

Benadum V. Pratt 711 

Bendemagle v. Cooks 100 

Bennac v. People 365 

Benners v. Clemens 420 

Bennetv. Ex'rs of Pizley 64 

Bennet v. Jenkins 731 

Bennettv. Baker 600 

Bennett V. Seymour 460 

Bennock v. Whipple 441 

Bentley v. Northouse 603 

Benvonv. Maddison 460 

Berdan V. Sedgwick 887 

Bergv.BadclS 76 

Bemal V. Uovious 818 

Berry V. Griffith 661 

Berry V.Kelly 374 

Betts V. Devanport. • 614 

Bevan V. Waters 

Cases Cited. 


bigelow T. StMnM 305 

biOiiunley T. Wills 460 

BiUowB T. Lovd 178 

Bingham T. Jordan 94 

Bh^T. Wri|^t 119, 120 

Birokhead ▼.Brown 270 

Bird T.Brown 225 

Bird ▼. Gardner 659 

Birdaall V. Hewlett 461 

Birely V. Staley 145 

Bishop ▼. Doty 314 

Biehop V. Yonng. • 653 

Biflaell V. Edwards 705 

BiaseU ▼. Hopkins 91, 142 

BisseUv.Kip 601 

Bitting V. Vandenbnrgh 240 

Bitzer V. Shnnk 471 

Blackbame ▼. Thompeon 330 

Blackett V. Bliiard 209 

Blackledge ▼. Simpson 607, 687 

Blackwefl ▼. Child 670 

Blasroye ▼. Gore 660 

Blake V. Coats 319 

Blake ▼. Nicholson 523 

Blade ▼. Noland 141 

BUmire V. Geldart 460 

BhkDchard ▼. Baker 238 

BUmchard T. Blackstone 155 

Blanchard T. Rossell 250 

BJasdellT. Soather 161 

Bleaden ▼. Hancock 522 

Bliss ▼. Bliss 322 

BlissT. Smith 730 

BHthe'sOtte 552 

Blood V. Qoodrioh 161,213 

Bloodgood ▼. M<^wk eto. B. B. 272 

Blnmenbog ▼. Adams 710 

Board of Com. ▼. Younger 390 

Board of Directors t. Uooston. . 238 

Boehmv. Combe 282 

Bogget ▼. Frier 710 

Boggs ▼. Beed 84 

BoUTarM.Co. v.Kapon8etM.Co. 107 

Bond ▼. Qnattlebaom 389 

Banner ▼. Liddell 605 

Boon ▼. Steamboat Belfast 720 

Boone ▼. Eyre 54^ 759 

Boone ▼. Sinkler 461 

: Boorman ▼. Jenkins 720 

- Boose's Appeal 579 

' Booth, /» re 200 

' Booth ▼. Adams 245 

. Borden ▼. Fitch 305 

t Boren ▼. McQehee 170 

• Boeley v. Chesapeake Ins, Co. . . 714 

: Boston Bank ▼. HodM 163 

Boston etc Corp. ▼.JNewman.... 238 

Bostwick T. Leach 751 

Boetwick T. Lewis 405 

Bovey v. Castleman 653 

liowden ▼. Schatzell 692 

Bowen ▼• Conner 115 

Bowerv. State 642 

Bowghen ▼. Nolan 401 

Bowkor ▼. Childs 98 

Bowles ▼. Dra^^ton'" Bzr% 461 

Bowman ▼. Buley 312 

Boyce ▼. Edwards 716 

Boyoe v. Owens 711 

Boyd V. Dmilap 703 

Boyd V. Hitchcock 96 

Boyle ▼. Zacharie 249 

Boylen v. Leonard 117 

Brabrook ▼. Boston F. C. S. Bank 138 

Braddick v. Thompson 605 

Bradford ▼. Hubbard. 741 

Bradish v. Schenck . . . .223, 31^ 318 

Bradley ▼. Cary. 264 

Bradyv.HilL. 625 

Brandt ▼. Klein 289, 295 

Bnurd ▼. Ackerman 280 

Brashear t. Barton. 615 

Brawdy t. Brawdy 642 

Brazier ▼; Ansley 320 

Bree v. Holbeck 734 

Breed ▼. Hillhonse 266, 771 

Brentnal t. Helms 583 

Bressey ▼. Humphreys 769 

Brewster t. Countryman 157 

Brickhonse v. Hunter 687 

Bridge T.Gray 98 

Bridge ▼. Hubbard 384, 645 

Brigffsv. Call 98 

Brigham ▼. Henderson 250 

~ " 138 





Bristol T. Wibmore 324 

Britton ▼. Gradon 504 

Brittonv. Lorenz 296. 297 

BroadweU ▼. Phillips. 129 

Brockway v. Bumah 328 

Bromley t. Jefferies 540 

Bronsdon V. Winter 668 

Brooks ▼. Avery 388 

Brooks T. Powers. . • 142 

Broom v. Broom 655 

Brown t. Bebee 77 

Brown ▼. Bokee 579 

Brown v. Clark 260 

Brown V. Coats 318 

Brown V. De Selding 260 

Brown ▼. Gay • • 226 

Brown V.Hall 387 

Brown v. Killingswortti 713 

Brown v. Lipscomb 752 

Brown v. Mayor of N. Y 309 

Brown v. Payson • 296 

Brown v. People 243 

Brown v. Union Lis. Co 285 

Brown v. Vawser 6^(2 

Brown V.Wright 595 

Browne V. Kennedy 

Bright V. Carpenter. 
Briffhtman v. Hicks. 

Bri^ ▼. Suffff , 

Brinagar v. fillips 


Cases Cited. 


Brownell t. Manchester 608 

BrowDing ▼. Boston 133 

Brownson ▼. Gifford 395 

Brace ▼. Edwards 725 

Bryan ▼. Bicklenr 84 

Bryan ▼. Spmill 579, 580 

Bryant, Ex parte 364 

Bryant v. Eastman 138 

Backley v. Artcher 327 

Backley's Adm'rs ▼. Bead 461 

Baokmaater V. Harrop 540 

Buckmyr ▼. Damall 419 

Bockner v. Finley 418 

Backner ▼. Smith 645 

Bnddington V. Bradley 238 

Bnfialo & S. L. B. B. V. Brie Ck>. 309 

Baffington v. Gerrish 324 

Bohle V. Sherman 308 

Bnlkley V.Derby Flying Co 217 

Bull ▼.Steward '..... 601 

Bnller V. Crins 268 

Bampus r. Platner 168, 169 

BampassT. Webb 607 

Bonn T.Thomas 601 

Bontins ▼. Bicks 517 

Burdick v. Murray 523 

Burdiok V. Washburn 322 

Burger V. Belsley 711, 712 

Burk ▼. Barnard 601 

Burks ▼. Albert 625 

Bums V. Cooper 319 

Bums V. Huntington Bank. .457, 458 

Burr's Trial 365 

Burr T. Sherwood 579 

Burrv. WUoox 153 

Burroughs v. Stoddard 610 

Burtners V. Keran 129 

Burton V. Souter 268 

Burton V. Hughes 608 

Bush ▼. Bradley 224 

Bush V. IjTingston 645 

Butler ▼. Benson 260 

Butler V. Mc Vicar 398, 399 

Butler and Baker's Case 666, 648 

Byrdv.Boyd 464 

Cadogan t. Kennett 91, 142 

Cadyy. Sheldon 270 

Caldwell ▼. Eneas 219 

Calhoun v. Cook 511 

Callen V. Thompson 142 

Calvin's Case 345 

Cameron v. Fowler 371 

Camidge v. AHenby 443 

Campv. Cainp 562 

Campbellv.&l 338 

Campbell v. Jones 759 

Campbell v. Whittinghsm 735 

Capenart v. Mhoon 405 

Carbrey v. Willis 89 

Carey v. Bri^ 494 

Cargey and Aitchison 605 

Cirleton v. Millinffton 552 

Carina v. QuattleSaum 622 

Caxlion, Bx parte 198 

Carmalt V. Post 485 

Carothers v. Dunning 473 

Carpenter v. Thornton 592 

Carringbon v. Insuranos Co 365 

Carrol v. Blenoow 709 

Carroll V.Lee 440 

Carrollton Bank v. Tbylanr 718 

C. & A. R. R. Go. V. Baldauf 533 

Carson v. Blazer 59 

Carson v. Hunter 189 

Carter V. Connell 368 

Carter v. Murcat 58 

Case of the Commonwealth Bank. 765 

Osstlittg V. Aubert 151 

Casweirv.Destrich.314, 315, 316, 317 

Cater v. Pembroke 735, 736 

CauUdns v. Harris 731 

Cauthom v. Deas 696 

Cavey v. Pittsbun^ Ft. Wayne 

and Chicago B. K. Co 518 

Chadboume v. Watts 645 

Chafiee v. Baptist Convention. . . 200 

ChaiSeev. Stewart 491, 493 

Chamberlain v. Thompson 76 

Chambers v. Lewis 322 

Chambers v. Pleak 562 

Champion v. White 165, 167, 168 

Champlin v. Laytin 76 

Chance v. Adams 248 

Chandler v. Drew 486 

Chandler v. Northrop 309 

Chandler v. Thurston 314, 319 

Chapelle v. Ohiey 578, 579 

Chapin v. Pease 704 

Chapman v. Allen 520 

Chapman v. Black 645 

Qiapman v. Commonwealth .... 84 

Chapman v. Hart 669 

Chapman v. Emety 381 

Chapman v. Robertson 500 

Charles v. Monson etc. "Mfg, Co. 224 

Chase v. Wetmore 523 

Cheeney v. Arnold 260 

Cheney v. Holgate 598 

Chess v. Chess 138 

Chichester v. Cande 690 

Choteau V. Jones 145 

Chouteaux v. Leech 467 

Christian v. Crocker 321 

Christian v. Dripps 494, 518 

Christian v. Scott 731, 732 

Church V. Church 392 

Churchill V. Terrell 129 

City Council v. Van Roven 714 

City of Pern v. French 711, 712 

Claasen V. Shaw 566 

Clapp V. Broma^ham 124 

Clapp V. Stoughton 578 

Claremont v. Carleton 77 

CLirk V. Baker 130 

Clark v. Devlin 543 

Clark V. Flint 633 

Clark V.Hill 595 

Cases Cheix 



dark V. McGommaa 517 

Clark V. Monyan 76, 226 

Clark T. People 243 

Clark V. Kicbards 296 

Clark V. Seirer 638 

Clark V. Slaoghter 130 

Clark V. Valentine 711 

Clark V. Vaogfaan 224 

Clarke v. Tankirk 536 

Clarkaon V. White 707 

Clay V. Smith 249 

Clay V. Walton 153 

CUy V. Williams 290 

Clayton's Case 622 

Clayton v. Andrews 549 

Clemens v. Judsoa 690 

Clement v. Jones 218 

Clerk y. Martin 268 

Clerk V. Withers 432 

Clifford V. Lohring 153 

Clopper V. Union 48 

Qopper V. Union Bank 544, 725 

OoveU V. CardinaU 482 

Clogas V. Penaloma 403 

Qnegage T. Swan 600 

Cous V. Mathews 546 

Coalter V. Hunter 238 

Cobhamv. Upoott 264 

Cobom V. Ellenwood 212 

Cobnmv. Pidcering 145 

Cock V. Taylor 77 

Codman T. Evans 115 

Codman ▼. Freeman 94 

Cofran v. Cbckran 212 

Coggs V. Bernard 643 

CopiUv. Hord 687 

Cole ▼. Cottinghaa 370 

Cole V. Cashing 603 

Cole V. Goodwin 438, 533 

Golev.Gee 130 

Colesv. Coles 659 

Coles V. County of Madison .... 238 

Colleton V. Garth 669 

Collier v. Pierce 89 

Cdlin^^Bworth v. Horn 170 

Collins V. Gwynne 570 

Colt V. McMechan 438 

Colt V. Netterville 548 

Oolmnbian Ins. Ca v. Catlett. . 283 

Colyer t. Johnson 737 

Com. B'k of N. 0. ▼. Kewp<»rt 

Mfg. Co 84 

Commercial Bank Y.French. 232, 725 

Commonwealth y. Blanding 36 

Commonwealth y. Chapin 59 

Commonwealth v. Caluns 712 

Commonwealth v. Cashing. .198, 203 

Commonwealth v. Downes 203 

Commonwealth v. Fox 203 

Commonwealth ▼. Harrison .198, 203 

Commonwealth v. Hass 458 

Commonwealth T. Keith 140 

Commonwealth v. Koisey 441 

Commonwealth y. Loach 119 


Commonwealth v. Manley 581 

Commonwealth y. Morse 607 

Commonwealth v. Phillips 139 

Commonwealth v. Ruthericird. . . 364 

Commonwealth v. Searle 84 

Compton V. Mathews 245 

Comstock Y. Smith 128, 130 

Concord Bank Y. Bellis 712 

Conn v. Cobum 583 

Conn Y. Penn • 614 

Cook V. Bradley i..370, 371 

Cook Y. Bawdon 395 

Coolev Y. Lawrence 262 

Coombs V. Jordan 219 

Cooper Y. Dedrick 270 

Cooper V. McGrew 318 

Cooper V. Wilcox 726 

Cooper Y. Williams 238 

Coppv.Neal 212 

Corbett Y. Poelnitz 713 

Corbin y. Jackson 244, 245 

Corbit V. Bank of Smym* 449 

Cormick Y. Trepand 381 

ComellY.Dean 319 

Corwin Y. Merritt 308 

CoBtelo Y. CaYO 48 

Coach Y. Meeker 680 

CoYey V. P. F. W. ftaE. E.Co. 494 

Cowper Y. Mantel 670 

Cox Y. Adams 420 

Coxy. Grant 474 

Coxe V. Swing 476 

Cozzins Y. Whitaker 732, 736 

Craig Y. Brown 700 

Craig Y. Childress 438 

Ciaig Y. Missouri 762, 764, 769 

Cram v. Aiken 676 

Cram y. Bangor House Prop. . . . 208 

Cram y. Union Bank . . 398 

Cramer y. Van Alstyne 601 

Crane v. Newell 178 

Crary y. Sprague 469 

Crawfer y. State 600 

Creighton y. Seppings 608 

Cresson y. Stout 214 

Criflford Y. Berry 652 

Criss Y. Withers 76 

Crittenden v. Alexander 580 

Crocker v. Pierce 129 

Crocker v. Wolford 449 

Crooker y. Bragg 238 

Crockett y. Lashbrook 592 

Crookshank y. Burrell 549 

Crosby y. Berger 296 

Crosby v. Fitch 467 

Crosby v. Wadsworth. . .% 751 

Croughton y. DuYal 178 

Crowninshield y. Kittridge 145 

Cruger y. Dougherty 309 

Crutchley y. Olarance 229 

Cubitt Y. Porter 226 

Cuff Y. Penn 159,160, 161 

Culliford Y. Cardinel 287 

CttUiford Y. Cordonmy 287 


Cases Cited. 

CoUtiin T, EnunQel ••• 458 

CnlTor r, Ayerr 406 

CommingB ▼• Voice 323 

Camiwtoii ▼. MdNair 771 

Ganningham T. Momll •••. 769 

Curtis V. Brown 163 

Cartis ▼. Cnrtia 130 

Cartii V. Leavitt. 278 

Coahing ▼. Hard 03 

Cathbert T. Cathbert 689 

Gathbert ▼. Haley 645 

Catler ▼. Dickinson 142 

Cutler T. Powell 184 

Cats T. Pickerings 296 

Catts ▼. Haakins 527 

)Uv. Shaw 438 

V. Hudson 305 

DaUyv.King 133 

Dana ▼. Tucker. 597 

Danav. Valentine 115 

Danieli v. Brown 318 

Daniek ▼. Daniels 223, 224 

Darling ▼. Eellv 319 

Dainellv. Trott 419 

Dart T. Dart 128 

Darwin ▼. Handley 142 

Davenport t. Muir 620 

Davidson ▼. Smith 260 

Davies v. Pierce 614 

Davies ▼. Qnarterman 394 

Davis V. Goverly 163 

Davis V. Fuller 238 

Davis V. Hayden 128 

Davis V. Hooper 690 

Davis V. Lane 207 

Davis V. Bobertson. 416 

Davisv.Bowell 416 

Davis V. Wilboume 620 

Davys v. Boucher 670 

Dawson v. Holoomb 692 

Day V.Sharp 170 

Dean v. Mason 66 

Dean v. Richmond 713 

Dearborn V. Gross 167 

Dearborn V. Dearborn 40 

Dearborn v. Parks 654 

Deaver v. Rice 319 

Decker v. Decker 322 

Decouche v. Savetier 464 

De Forest v. Bacon 748 

De GaUlon v. L'Aigle 708, 710 

De Haven v. Bartholomew 484 

Delacroix v. Bulkley 157 

Delaney v. Root 318, 319 

De Mott V. Ha^rman. .314, 317, 322 

Demarest v. Willard 120 

Doming v. Carrington 614 

Demott V. Laraway 438 

Den v. Graham 469 

Denv.Snowhill 246 

Den v. Tomlin 690 

Den V.Webb 126 

Dennv. Flack 603 

Dennison V. Nigh 581 

Denning V. Gorwin 306 

Dentv. Chiles 60 

Denton T. Jackson 174 

Denton V. Strickwell 320 

Depnyv. Swart 868 

Demckson v. Cady 454 

Desharao v. Lewis 161 

DeslondesT. Wilson 147 

Despatch Line of Packets ▼. Bel- 
lamy Mfg Go. ft Trustees. .222, 230 

De Voe v. Brandt 327 

De Wahl V. Braune 710 

Dewey ▼. Dewey 260 

Dialv.Neuffer 713, 714 

Dickin ▼. Edwards 671 

Dickins V. Jones 56 

Dilksv. Parke 419 

Dillinback v. Jerome 607 

Dinehart v. Wilson.... 818, 322, 874 

Dingwall v. Dunster 544 

Dingwell V. Askew 668 

Dinsdale ▼. Lanohester 602 

Disinger's Case 203 

Divine, Matter of 365 

Dixon v.KiccoUs., 818, 319 

Doak V. Donelson 562 

Dockham V. Parker 815, 319 

Dodge V. Bartol 676 

Dodge V. Niohols 126 

Doe V. Andrews 291, 292 

Doe V. Bird 510 

Doev.Burdett 262 

Doev. Dowdall 130 

Doe V. Martyr 144 

Doe V. Plrosser 610 

Doev. Rue 260 

Doe ex dem. Duke of Devonshire 

eta V. Lord George Cavendish. 63 
Doe ex dem. Maxwell v. Moore. 615 
Dold*s Trustee v.Qeiger'sAdmV. 673 

Dolsen v. Arnold 371 

Domvile v. Taylor 669 

Donnell V. Harshe 321 

Donovan V. Finn 606 

Doolittle V. Blakesley 77, 126 

Doolittle V. Malcolm 687 

Dorr V. Munsell 694 

Dorris V. Smith 130 

Dorsey v. Dorsey's Heirs. . .614, 616 

Dorsey v. Jackman 738 

Doty V. Brown 308 

Doty V. Hawkins 430 

Douglas V. Reynolds 770 

Dowv. Tuttle 157 

Dowd V. Davis 568 

Dowd V. Wadsworth 60 

Dowes V. Maynard 669 

Dows V. Perrin 327 

Dowsv. Swett 153 

Drake v. Wakefield 328 

Draughan v. Tombeckbee Bank. 690 

Drum V. Simpeon 615 

Dmmmond v. Magneder. 700 

Cases Cited. 



Dniry T. Briaooe 678 

Dniry T. State 864 

Doffin T. Smith 283, 286 

Duffy T. Iiia.Go 440 

DokeT.Havper 662 

]>DJce of Norfolk T. Wettly 733 

Dakeof St. AlbuMT. Shore.... 64 

Dmioen, ExmrU 864 

Duncan r. MoCulloagh 466 

Dunham T.D^ 668 

Dunham ▼. Goold 646 

DunnT. White 730, 733 

Donahee ▼• Qrnndy 121 

Dapleiz v. Do Boren 187 

Dappa V. Mayo 768 

Dnrkee v. Leland 288 

Doaenberzy ▼. Hoyt 372 

Datton T. Poole 650^ 661, 663 

Dnvall V. "Waten 661 

D^olf T. Bahand 16Q, 770 

Eager v. Atlae Ins. Go 720 

Eagle T. Eichelberger 146 

Elide Bank ▼. Smith 603 

Earie ▼. Boworoft 282 

Earl of Banelangh v. Hayee.... 683 

Early ▼. Garrett 734 

Earlyv.Mahon 646 

Eaaton t. Worthington 422 

Eastwood V.Brown 142 

Eastwood T. Kenyon 370 

Eddy ▼. Boberts 163 

Edington t. Mat life Ins. Co . . 287 

Edwards V. Davis 370 

Edwards ▼. Handley 606 

Edwards T. Harben 142 

Edwards T. EeUy 160 

Edwards ▼. McQeay 736 

Edwards V. Univernty 464 

Edwards V. Weeks. 167 

Edymoiny/are 366 

Eidcev. Nokes 288 

Eldridge ▼. Knott. 134 

EUedge T.Todd 600 

Elliott ▼. CoggshaU 686 

Elliott T. Holbrook 471 

Elliotfe ▼. Piersol 706 

EUisT. Brown 270 

EUsworih V. Brewer 603 

Elmendorf T. Harris 607, 687 

Klphinstone v. Bedreeohnnd. . . . 361 

ElwesT. Maw 760 

BmecBon ▼. Slater 161 

Emery T. Lawrence. 117 

EmmeraoD ▼. HeeUs. 761 

En^jIandT. Downs 386 

aiBoopal Chorch t. Wiley 416 
ionv. Colbnm 318 

SsdonT. Swaringer 321 

Snoond T. Tarboz 226 

Eaaaz Co. V. Edmonds 138 

Estate of Hinds 484 

Etheridge T. Vemoy 406 

EraDST. Hastings 441 

Evans T. Tatem. 684 

Evans ▼. WeDs. 211, 218 

Everett V. United States. .. .232, 686 
Everhart V. PhiL ft W. a B. B. 606 

EwartT.Kagel 714 

Ewing V. Burnet. 183 

Ewingv. McKnk;ht 476, 476 

Exeter Carrier, (Sise ol 422 

Fagan V, NewBon 406 

Fagler V. Evig. 474, 476 

Furhanks V.Williamson... 127, 130 

Fairly V. Kline 461 

Faithome v. Blaqnire 713 

Falls V. Camnter 662 

Fanning V. Donbam 646 

Farley V. Clevdand 160 

Farley V. Thompson. 118 

Farmers' Ins. Ca v. Snyder 46 

Farmer V. Bnssell 648 

Fair V. Beynolds 733 

FaiTV.Sims 468 

Farrarv. Stookpole....216, 481, 483 

Farringtonv. Meek 622 

Fellowsv. Fellows 667, 668 

Felton V. Dickinson 661 

Fenton V. Browne 733 

Fenton V. Emblers 648 

Fentom v. Pooook 643 

Fergason v. Crawford 308 

Ferguson v. Harwood 700 

Ferrallv. Kent 318 

Field V. HoUand 622 

Fierov. Betts 822, 374 

Fink V. Fink's ExV 650 

Finney V. Cochran 454 

Fiqnet V. Allison 318 

Fian v. Hutchinson • 161 

Fiahar v. Prosser 123 

Fisher V. BarUett 68 

Fisherv. Cobb 608 

Fisher V. Filbert 440 

Fitchv. Fitch 126 

Fitch V. Scott 42, 480 

Fitchv. Sutton 85 

Fitchburg Cotton M^. Corp. v. 

Melven 120 

Fitchettv. Adams 221 

Fitzhnghv. Croghan 620 

Fleckner V. U. S. Bank 218 

Fleming V. Gilbert 167 

Flemmmgv. Mulligan... 645 

Fletcher V. Edson 583 

Fletcher V. Fletcher 60 

Flight V. BoUand 540 

Floyd V. Bovard 430 

Floyd V. Goodwin 468, 562 

Floyd V. Johnson 84 

Foley V. CowgiU 680 

Fonville V. MoNease 777 

Footv. Stevens 806, 306 

Foots V. Colvin 314, 317 

Foote V. Emexson 646 

Ford V. Ford. . • • • • •••'•«« •<»• • • • • 


Cases Cited. 


Fold T. Gray 473 

Ford V. JobDMB 240 

Ford ▼. Keith 688 

Ford ▼. Wolsworth 302 

Forrester V. Giuurd 600 

Forster T. Hale 536 

Forty. B«reh 381 

Foshay V. FergoeoQ 827 

Foster, J2rpa% 623 

Foster y. Shattack 229 

Foamier y. Gurry 762 

Fowler y. ^tna Ins. Cb 46 

Fowlery.Lee 607 

Fox y. Unioa Sogv Beflnsiy . . . 116 

Frame y. Kenny 454 

Frankf ort Bridge Cay. WilliaiBs. 714 

FmokB, Ex p«ui4 700 

Frederick y. Gray 610 

Freeland y. MoGmloagh 260 

Freemantle y. BaidDS 670 

Freer y. Walker 713 

French y. Hall 600 

French y. ShotweU .384^ 385 

French y. White 328 

Fk«yy.Kirk 250 

Frita y. Commiasioiim 605 

Frosty. Eyerett 157 

Frost V. Peaoook 392 

Frost y. Spanlding 662 

Front y. Hardin 319 

Fryy.Jones 319 

Fryey. Baker 178 

FagoA y. Garriel 690 

Fofier y. Bartlett 713 

Fnlwood's Gaae 668 

Forbiah y. Goodman 153 

Gaffield y. Hapgood 214^ 219 

Gale y. Wood 214 

Galpiny.Haid 456 

Ckilyin y. Bacon 60 

Gardiner y. ConoB 166, 760 

Gardiner y. Painter 381 

Gardner y. Lee's Bank 260 

Ckirdner y. Kewbmgh 238 

Gardner y. Printap 669 

Geddes y. Kennedy's Bseentors. 717 

Gee y. Moore 130 

Qeargey. Goldsby 680 

Gerard y. Basse 471 

Gerrish y. Sweetser 116 

Gibson y. Cooke 745 

Gibson y. Calmer 438 

Gibson y. Fristoe.... 646 

Gibson y. Minet 376 

Gibson y. Patterson 415 

Giddings y. Seward 671 

Gilbert y. ColambukTnnipikaGo. 277 

Gilberty. Dickerson 60 

Gilbert y. Hoffman 469 

Gilbert y. Knox 260 

Gilbert y. N. A. F. Ina. Go 680 

Gilbyy.Coply 646 

Giles y. Grov«r«.«*«« •»« 009 

Gill y. Bradley ^ 420 

Gillaa|kie y. Osbam ISS 

Gilliam y. Moora m, 669 

Gilmany. Peck 449 

Gilman V. Thompson • 661 

GUmore y. Whiteaidea 166 

Gimblin y. Harrison 405 

Girard y. TagEart 607, 616 

Gisboom y. Hoxst ; 465 

Gist y. Lybtand 466 

Glassy. Glass 691 

Glenn y. Smith 48 

Glisson y. Newton « 645 

Gochenanr'a Estate 678 

Gochenoar y. M0W17 129 

Godbold y. Bass • 681 

Goddard y. Bolow 66^ 77 

Goddard y. Chaoe 214 

Goddard y. Snow 662 

Godolphin y. Tndor 287 

Goldy.Bissel 706 

Goll V. Hinton 373 

Goodnow y. Howe , 71 

Goodrich y. WiUard 622 

Goodmm y. Carroll 671 

Goodyear y. Pnmhiigii 573 

Gordon y. Harper 424 

Gordon y. Hutchinson 467, 698 

Gordon y. Mass. Mutual Lis. Co. 431 

Goshen y. Stonington 605 

Goss y. Lord Nugent 166, leo 

Gossin y. Brown 453 

Goulding y. Dayidson 327 

Graff y. Bloomer 433 

Graf ton Bank y. Woodwaid 695 

Graham y. Graham... 130 

Graham y. Warner qq 

Graham y. People 296 

Grainger y. State ^42 

Grant y. Chase 37 

Grant y. Giant 2OO 

Grant y. Van Schoonbovan 396 

Grant y. Vaughn 302 

Grayes y. Boy 749 

Grayos v. Merry 312 

Gray y. Chiswell 773 

Gray y. Holdship 2ig, 433 

Greasly y. Codlmg 133 

Greathonse's Case 335 

Grebiirs Appeal 573 

Green v. Farmer 143 

Green y. Hollingsworth 533 

Green y. Kemp 334 

Green y. Morse 334 

Green y. PaUas 714 

Green y. Sizer 449 

Green y. Skipworth 73 

Green y. Symonds..... 333 

Green y. Tanner 145 

Greenby y. Cheeyers 133 

Green etc P. R. Co. y. Moore. . . 434 

Greenhow y. Harris 345 

Greenleaf y. Perrin ••••»•• 219 

Greeno y. Mnnson .>.,>♦<., >^ >^. 394 

Cases CiTEa 


Greenoogh ▼. GktfUi 291, 294 

Oregcnry v. Hooker 37 

Gregory ▼. Paul 708^ 710 

Gregory V. Pierce 711 

Gregory V. Piper 407 

Gregory ▼• Stryker 622 

Griffin V. Sutherland 240 

Grimstone ▼. Carter 550 

Grindley ▼. Barker 209 

GrinnellT. Cook 372, 522 

CkoTerv. Wakeman 748 

Grovee v. Back 549 

Grubb ▼. Mahoning Nav. Co. • • . 505 

Gmndin ▼. Carter 121 

Goeet T. Opdyke 318 

Gnidrey ▼. Vivee 262 

Gulllev. Swan 407 

Gulickv. Ward 404 

Gnphill V. iBbell 454 

Gnstin V. Carpenter 713 

Guthrie ▼. Owvn 260 

Haffiaer ▼. Irwin 747 

Hale V. Amee «. 60 

Halev. Henrie 659 

Halev. Patton 420 

Hale ▼.Smith 613 

Hallv. Bomer 77 

Hall V. Fisher 323 

HaUy. Kavlor 328 

Hallen v. Kunder 751 

Hamblett V. Hamblett «. 218 

Uanunettv. Shanks 81 

Hammond v. Pennook 396 

Hancock ▼. Wateon 178 

Handy ▼. Metaar 422 

Hanf ord ▼. McK^ 213» 216 

Hapgood ▼. Brown... •• ^.. 89 

Hapgood ▼. Burt 193 

Hard'aCaae 663 

Harden V. Gordon 98 

Harding ▼. Evans 87 

Harding ▼. Nelthospe 734 

Hardwick ▼. Forbes 737 

Harev. Celey 814^315, 317 

Harford ▼. Maynard 284 

Harsrave ▼. Pernod 602 

Harker V. Conrad 625 

Harpending v. Shoemaker 322 

Harper ▼. Archer 578» 579 

Harper V. Fox 471 

Harper V. Little 559 

Harriman ▼. Gray 130 

Harriman v. Hanimaa 98 

Harrington ▼. People 308 

Harris ▼. Carson 481, 720 

Harris ▼. Huntington 598» 600 

Harris ▼. Taylor 713 

Harris ▼. Woodruff 622 

Harrison ▼. Asher 668 

Harrison ▼. Hicks 48 

Harrisoa ▼. Rice 319 

Harrison ▼. Eksks 320 

Harrower V. Heath 318» 322 

Am. Dao. Yoi.. XXXyn-4 


Hart ▼. Boiler 48 

Hartv. Gregg 510, 511 

HartT. Seizes 305, 306 

Hartford Bank ▼. Bkrry 230 

Hartley ▼. Harrison 387 

Hartley ▼. Taiham 387 

Hartop ▼. Hoare 607 

Hanrey v. Vamey 145 

Harway ▼. Mayor eto. «f K. T. 323 

Harwood ▼. Tooke 128 

Baskins v. Rhodes 317, 319 

Hatchv.Hart 318 

Hatch ▼. Hatch 154 

Hatch ▼. KimbaU 49 

Hatch V. Straight 615 

Hatchell V. Kimbrougji 319 

Haagbabaugh v. Honald 245 

Haughton ▼. Matthews 522 

Havens ▼. Havens 668 

Havens ▼. Sherman 309 

Hawes v. Watson 428 

Hawkes ▼. Sannden 36 

Hawksv. Pike 138 

Hawley V. Bradford 392 

Hayes v. Ward.... 583, 605, 72% 725 

Hays V.Hall 633 

Haywood v. Rogers 320 

Heady'sWiU 260 

Heald v. Builders' Ins. Co 321 

Healings v. Mayor of London. . . 504 

Heard v. Wadham 157 

Heaton V. Findlay 518 

Heaton v. Hodgee 562 

Heermance v. Yemoy 214 

Hempstead v. Bickaoii 461 

Henderson v. Bellew 

Henfree v. Bromley 682^ 

Henley v. Soper 594 

Henson v. Hampton 185 

Henthom v. Doe 700 

HargmAD v. Dettlebaeh 373 

Harries V. Canfield 772 

Herrington V. Hubbard 633 

Hers^ V. Benedict 328 

Heseltine V. Heseltine 668 

Hess V. State 84 

Hewitt V. State 607 

Hewitt V. Warren 242 

Heylyn v. Adamson 543 

Hibbitts V. Canada 565 

Hicks V. Dom 278 

Hicks v.Hotchkiss 250 

Hicks V. Rogers 224 

Higdon's Wm 260 

High V. Worley 713 

Hightv. United States 365 

Higley V. BidweU .,. 614 

Hm,£zparte 208 

HiU V. Sewald 494, 518 

Hill V. Townsend 580 

Hilliker v. Loop 69 

HUlsv.Doe 223, 224 

Himes v. Bamita 485 

Hind V. Darlington*****. •••••• 


Cases Cited. 


Hind V. HolcUhip M, 664 

Hinds'Estata 578 

Hinde v. Longworth 91 

HintoD ▼. MoNeU 592 

Hirnes v. Keller 45d 

Hitchcock V. Edgerton 586 

Hitev. Wella 153 

Hobart V. Lemon 713 

Hobaon Y. Davidson 633 

Hobeon V. Trevor 128 

Hockaday T. Iiiallee 581 

Hodaden v. Harridge 484 

Hoffe V. Hoge • • 524 

Holbrook v. Finn^ 659 

Holbrook y. Waters 581 

HoUfield v. White 322 

HoUey V. Holley 84 

Hollingsworth v. Dow 523 

HoUister V. Nowlen 438 

Hollister v. Union Co 58 

Hoimaai, Exvarte 203 

Holman v. Johnston 403 

Holmes ▼. Broughton 84 

Holmes v. De Gamp 70 

Holmes ▼. Holmes 670 

Holmes V. Tremper 214 

Holroyd v. Mansball 128 

Home V. Richards 58 

Homes v. Smyth 48 

Hone v. Medcraft 670 

Honner v. Morton 576 

Hood T. Fahnestock 145^ 381 

Hooker ▼. Cnmniings 59 

Hoomes v. Smock 645 

Hooper v. Strasbniger 71 

Hoppock V. Wilson 419 

'Eapoon, Bx pofie 203 

Horn V.Baker 215 

Homer's Oose 835 

Hosack T. Weaver 422 

HoBtler*s AdmV v. Skull. . . .430, 611 

House V. House 892 

House V. McCormick 129 

Houston V. Dyche 60 

Howard v. Bi^ant 579 

Howard v. Crittenden 579 

Howard v. Carpenter 74 

Howard v. Hooper 562 

Howev. Bartlett 94 

Howe V. Merrill 138 

Howe V. Mitchell 761 

Howland v. Fort Edward F^per 

Mills Co 396 

Hoyt V. Sheldon 381 

Hoy t V. Thompson 250 

Hubbard v. Haughman 297 

HubbellT.Weldon 309 

Huffv. Campbell 705 

Hughv.Higgs 593 

HuUv.Cainley 374 

Humphrey v. Douslass 242 

Humphrey V. Heed. 430 

Huntv. Adams 135,770 

Hunt V. Algar 35 


Hunt V. Bridgham 178 

Hunt V. Matthews 552 

Hunt V. McGonnell 735 

Hunter v. H. R. Iron etc.Co. ... 327 

Hunter v. Rice 484 

Kurd V. Moring 292 

Hurdv.West 397 

Huston V. Williams 694 

Hutchings v. Johnson 687 

Hutchins v. Hawley 586 

Hutchinsv. Olcott 48, 98 

Hutchins v. Spragne 144 

Hutchinson v. Brand 308 

Hnttonv. Duey 440 

Hutton T. Warren 720 

Hyattv.Wood 441 

Hydev.Trent 436 

Iddmgs V. Kagle 481 

Haley V. Jewett 136 

Indiana ft Ebensboix Tomp. Co. 

V.Phillips 503 

Innis V. Miller 477 

Irish V. Cloyev 60 

Irvin V. Turnpike Co 503, 504 

Irvine V. Irvine 129 

Irving V. Motley 324, 326 

Irwin V. Workman 516 

laley v. Stubbs •^ ••^. . . • 498 

Israel V. DouglaM 651 

Jacks V.Adair 578 

Jackson V. Bard 614, 615 

Jackson v. Catlin 680 

Jackson v. Crawf ords 303 

Jackson v. Cummins • 520 

Jackson v. Duchaire 403 

Jackson v. Ellis 191 

Jackson v. Esty 807 

Jackson V. Haider 244, 245 

Jackson v. Hartwell 174 

Jackson v. Henrv 144 

Jackson V. Hubble 129 

Jackson v. Marshall 704 

Jackson V. McCall 614 

Jackson v. McVey 289 

Jackson v. Newton 191 

Jackson V. O^den 226 

Jackson v. Otis 191 

Jackson v. Rayner 151 

Jackson v. Richards 192 

Jackson v. Robins 170 

Jackson v. Robinson 808, 811 

Jackson v. Rowland 680 

Jackson V. Shepard 807 

Jackson v. Smith 191 

Jackson v. Terry 880 

Jackson v. Timmerman 142 

Jackson v. Van Dolfsen 65 

Jackson v. Vermilyea 191 

Jackson v. Vickory 252 

Jackson v. Vosburgh 244, 245 

Jackson v. Vrendenbuig 614 

Jackson v. Waldron 128 

Cases Cited. 



Jaokaonv. Walsh 144 

Jaokaon ▼. Whitbeok 126 

Jaokton t. WiUiMnaon 608 

Jackson V. Woodruff 191 

Jackson v. Wright 128, 129, 130 

Jackson ex dem. Bigelow ▼. Tim- 

merman 327 

Jackson cardem. Ck>lden y. Brown- 

eU 316 

Jaoomb v. Hiurwood 778 

James ▼. Bird's AdmV 633 

James ▼. Stewart 711 

Jarvis v. Aikens 129 

Jefferson Ins. Co. v. Cotheal. ... 46 

Jenkins v. Eichelbwger 400 

Jenkins V. Keymis 61« 64 

Jenkins V. Stetson 128 

Jennings, .^viMWte 238 

Jennison y. Cozens 743 

Jepherson v. Hnnt 153 

Jerome y. Boss 277 

Jeter Y.Penn 320 

JewettT. Patridga 60 

Jooelyn Y. Donnd 607 

Johns Y. Ghnroh 77 

Johnson Y. Ball 707 

Johnson T. Bean 126 

Johnson y. Bennett 578, 579 

Johnson y. BaYeme 292 

Johnson y. Fleet 581 

Johnson y. Hoffinan 818, 319 

Johnson y. Hnnt 496 

Johnson Y. Johnson 98 

Johnson Y. Titns 449 

Johnson Y. Weed 48 

Johnston y. Johnston 579 

Johnston y. Qoarles 390 

JoliffeY. mte 390, 662 

Jones Y. Ashbamham 264 

Jones Y. Barkl^ 759 

Jones Y. Cole 553 

Jones Y. Cook 601 

Jones Y.IUes 163 

Jones Y. Hart 690 

Jones Y. Hnggeford 94 

Jones Y. Jones 155 

Jones Y. Mason 660, 661 

Jones Y. Pitcher 69, 138 

Jones Y. Pope 601 

Jones Y. Roe 128 

Jones Y. Yarborongh 756 

Jopling Y. Booley 390 

Jordan y. Staples 321 

Joseph Y. Ingram 142 

Joslyn Y. Snuth 611 

JoameY y. Hnnt 465 

Joliand y. Bathbone 381 

Kane Y. Bloodjgood 452 

Keating y. Price 157 

Kellam y. Janaon. . . ; 441 

Kelley Y. Weston 321 

Kellogg Y. Kellogff 245 

Kellogg Y. Bichaids 96 


KellyY.EYans 654 

Kelly Y. McCormiok 287 

Kelsey Y. Smith 174 

Kendall Y. Bnssell 720 

Kennebec Co. y. Aagnsta etc. Co. 161 
Kennedy y. Baltimore Ins. Co . . 56 

KennedvY. Geddes 718 

KentY.Waite 163 

Kerr, AdmV, y. Baker 178 

Ketchell y. Bums 270 

Key Y. Knott 75 

Keyser y. Harbeck 327 

Kidd Y. Bawlinson 91, 142 

Kilby Y. WUson 324 

Kimball Y. BhusdelL 130 

KimbaU Y. Schoff 129 

Kincaid Y. Easton 147 

Kincannon Y. Carroll 182, 566 

KincY.Balfe 539 

King V. Baldwin. 177,583, 725 

King Y. Bordean 390 

King Y.Cotton 552, 553 

KingY. Fitch 327 

KingY. Gilson 129 

King Y. Harmon's Heirs 420 

King Y. Kerr's Adm'ks 620 

KingY.King 644 

King Y. Moore 240 

King Y. Paddock 713 

King V. Boot 36 

KingY. Stone 82 

King Y. Vanghan 76 

Kingman y. opnrr 311 

Kington Y. Gate 293 

Kinsey Y. Minnick 74 

Kinsman y. Loomis 130 

Kintzinger's Estate 579 

Kirkman Y. Shaworoes 146 

Kirkpatrick y. McDonald 454 

Kirkpatrick Y. McMillen 389 

Kirwan y. Latonr 214 

Kitchell Y. Bums 266 

KittridgeY. Woods 214 

Knickerix>ckerL.L Co. Y.Nelson. 884 

Knight Y. DaYis 669 

Knight Y. Thayer 129 

Knowles y. Lord 327 

KrebsY. O'Orady 711, 712 

La Clonch Y. Towle 426 

Ladd Y. Moore 327 

LafaYonr y. Homan 126 

Laj^w Y. BadoUet 633 

Laidlaw y. Organ 448, 449 

Lake y. Rnffle 713 

Lamb y. Kamm 130 

Lambert y. Cakes 455 

Lambert y. Saodford. . . 178, 544, 725 

L'Amoreuz y. Hewit 263, 265 

Land y. Deraynes. 669 

Lane y. Maine Mnt Fire Ins. Co. 433 

Langford V. Pitt 415 

Lansing Y. Oaine 186, 612 

~ ingY.BnsseU 328 


Cases Cited. 


Lansing V. Smith 58 59 

Larkin v. Bank of Montgom- 
ery eiH, 738 

Larkin V. Taylor 319 

Laroche v. Wasbrongh 600 

Latham ▼. United States 449 

Latimerv. Balston 91, 142 

Laltimore v. Harsey 157 

Lav V. Patterson 510 

Lawrence v. Parsons 309 

Lawronson v. Butler 540 

Lawbon v. Snyder. 74 

Lawton v. Lawton^ 493 

Leakins v. Glissel 405 

Leanv. Shntz 713 

ha But, Ex parte. 283 

Lecky v. McDermott 422 

Ledyard V. Bntler 381 

Leev.Dick 771 

Lee V. Tillotson 250 

Leg^ett V. Rogers 309 

Lehigh Coal and Nav. Cow v. Bar- 
Ian 508 

Leisenring v. Black 409, 411 

Leland V. Crayon 718 

Leland v. Stone 51 

Lemann V. BonsEill 78 

Leonard v. Baker 142 

Leonard v, Hendrickscm 467 

Leonard V. Pitney 736 

Leonard v. Vredenborgh. . . . 150, 770 

Leonard V. White 87 

Leopold V. Salkey 68 

Le Pace v. McCrea •. . 69 

Lepara v. Vernon 196 

Lerued v. Wannemacher 161 

Lessee of Devoy v. Borke 293 

Levy V. Bank of U. S 445 

Ley^^v. Boas 189 

Lewis V. Avery 601 

Lewis V. Comity of Chester 528 

Lewis V. Layman 321 

Lewis V. Lee 713 

Xiswisv. Lewis..... 260 

Lewis V. Lyman 316, 317 

Lewis V. Price 579 

Lewis V. IVler 522 

Lewis V. Wilkins 322 

Lewis V. Woods 633 

Lexington etc. R. B^ Co. v. Ap- 

plegate 238 

Lichtenthaler v. Thompson. .595, 725 
Life and Fire Ins. Co. v. Me- 
chanics' Fire Ins. Co 211 

Lightbody v. Ontario Bmk 443 

Lightner ads. Martin 547 

Lime Rock Bank v. Plimpton. . . 56 

Lindaay v. Hyatt 250 

Linn Bank v. State of lUinois. . . 769 

LiDscott v. Mclntire 541, 550 

Litchfield v. Cndworth 61, 66 

Little v. Larrabee 600 

Little v. Megqnire 193 

LitUer V. Holland 157 

Livingston v. RooMraU 186 

lioyd T. Brewster 325 

Lloyd V. Jewell 168 

Uoydv. Reach 388» 645 

Lockington, ^ar^xvte 203 

Lockwood y. Stordevaat. . • . .65, 66 

Lodge y. Patterson 126 

Long y. Merrill 76 

Longstaff v. Meagoe 214 

Loomis v. Marshall 312 

Lord Andley's Case 22& 

Lord Brooke y. Earl of Warwiek 669 

Lord Mohun's Case 333 

Lord Say and Seal's Case. . . .291, 295 

Lord St. John y. Lady St. John. 713 

LoriUard v. WiUiama 584 

Loring v. Alden. 161 

Loring y. Boston 1^ 

Louther v. Kelly 681 

Love v. Moynehan 711> 712 

Lovett y. Brown 523 

Lowv. Elwell 441 

Low v. Pardy 309 

Low y. Treadwell 157 

Lowe y. Miller 318 

Lowery V. Craig 578, 579 

Lowrey v. Murrell 449 

Lowry v. Inman 250 

Lowry v. Pinson 327 

Ludden y. Leavitt 607 

Lndlam's Estate 609 

Lndlow v. Johnson 690 

Lumy. State 364 

Lundv. Parker 191 

Lnpin v. Marie 324, 633 

Lnsoomb v. Ballard 38 

Lyde v. Mynn 128 

Lyles y. Lvles 553 

Lynch v. Allen 547 

Lynde v. McGregor 145 

Lynde V. People 364 

Lyon V. Jerome 278^ 707 

Lyon V. Marclay 452 

Lysney v. Selby 405 

Lytey.Penny 648 

Lytlev.Bird 405 

Mabbett y. White 374 

Maberley y. Bobbins 728 

Mackie v. Cairns 571 

Magoun y. Lapham 194 

Mahoney v. Gonter 308 

Mahurin y. Brackett 754 

Maile'sCase 638 

Mainwaringy. Giles 482 

Mallory v. Benjamin 296 

Malone v. Samnel 765, 756 

Malpica y. McKown 420 

Maneely v. McGee 48 

Manion V. Titsworth 578» 580 

Manly V. Westbrook 643 

Mann v. Mann 77 

Mann v. Pearson 889 

Manrow y. Durham 270 

Cases Cited. 



lianniftctiiren' etc. Buik v. Bank 

of Pem&Bylyania 45 

liarch ▼. Lndlucn 296 

Mariffny V. Bemy 654 

Maru ▼. Anstin 155 

Marsh ▼. Hrnitington 710 

M&rahall V. Greenfield 561 

MarshAll V. Rutton 713 

Marston ▼. Baldwin 324 

Harston V. Gartor .' 581 

Martin, Hatter of 203 

Martin ▼. Bigelow 238 

Martin ▼. Gemandt 460 

Marlandale ▼. Booth 91, 142 

Maaon ▼• Bond • 145 

Maaonv. Haile 502 

Mason v. Wash 84 

Mass. H. L. Ins. Co. ▼. Wilson . 121 

Masterv. Miller 603 

Matherv.Bosh 250 

Mather v. Corliss 155 

Mather v. Lanfrom 388 

Mather v. Trinity Church 424 

Mathews v. Howard Ins. Co. . . . 285 

Mathias v. Sellers 523 

Matson ▼. Wharam 419 

Matthews v. Dmyoe 392 

Matthews v. MUton 778 

Maule V. Duke of Beaufort 311 

Maverich v. Lewis 816, 317 

May ▼. King 157 

May ▼. Parker 224 

Mayfield V. Clifton 578, 579 

Maynard v. Maynard 138 

Mayo V. Giles* Adm'r 645 

Mayor of Mohile ▼. Bslava 58 

Mayor of New Orleans ▼. Bipley. 84 

Mays V. Hassell 690 

UcAUisterv. Devane..,.. 130 

McArthur V. Bloom 710 

BIcCarty v. N. Y. ft Erie IL IL 438 

McCarty V. Vickery 325 

McCauley ▼. Grimes 659 

tfcQung V. Bame 458 

McClure V. Bennett 69 

HcQure v. Richardson 467 

McCoUum V. Hinckley 595 

McColmont V. Whitaker 607 

McComhs IT. McKennon. . . . 160, 519 

McConnell y. BriUhart 416 

McConnell T. Maxwell 611 

McCoun Y. Delany 389, 562 

McCrary v. Slaughter 321 

McCrea V. Purmort 56 

McCullooh V. Hutchinson 145 

McCune ▼. House 81 

McCnaker V. McETey 130 

McDaniel t. Comwdl 713, 714 

McDowell V. Potter 578 

McDowl T. Charles 580 

McEldery T. McKenzie 37 

McElwee V. Sutton 327 

McFarUmd v. Wheeler 523 

McFee V. & C. Ins. Co 84 


McGrauny. North Lebanon IL£. 508 

Mclntire ▼. Rowan 600 

Mclntyre y. Kennedy 449 

McKellip y. Mcllhenny 718 

McKenna y. Hammond 219, 494 

McKenny y. Waller 176 

McEim V. Odom 598 

McKinnon y. McDonald 714 

McKnightY. Dnnlop 822, 327 

McMahon y. Cddougfa 706 

McMahon y. Rauhr 396 

McManus y. Oassidy 508 

McMeekin y. Edmonds 469 

McMillan y. VanderUp 464 

McNair y. GUbert 370 

McNairyy. BeU 645 

McNeely y. Hart 320 

McPhersony. Cunliff 52 

McRae V. Colclough 706 

McVauffh y. McVau^ 578 

McWilfiams v. Martm 615 

McWiUiams y. Nialy 52 

Mead y. Hughes 711 

Meadows y. Meadows 41& 

Meany y. Head 523 

Mehaify y. Dobbs 510 

Mellen y. Whipple 654 

Melyille v. Brown 373 

Merriam y. Cunningham 242 

Merriam y. Willis 319 

Merrill y. Meachum 143 

Merritt y. Millard -387 

Merritt y. Port Chester 309 

Mcrnweather y. Garyin 701 

Mersereau y. Norton 373 

Messier y. Amery 55 

Messinger y. Eantner 306 

Meyers v. Smith 71 

Middletown Bank y. Rnss 76 

Miles y. Cottle 428 

MUesy. Oden 420 

Miles y. Ridiwine 516 

MiUaudon y. N. O. Ins. Go 285 

Miller, Matter of 364 

Miller y. Barber 328 

Miller y. Howry 583 

Miller y.Ixmg 167, 168 

Miller y. Owens 169 

Miller y. Plumb. . . .60, 214, 215, 219 

MiUery.Race 442,443,444, 445 

Mills y. Bank of the U. S 163 

Millsy.Hunt 517 

Mills y. Martin 305 

Mills y. Wyman 370 

Milton y. Edgworth 156 

Minich y. Cozier 516 

Mitchell's Case 296 

Mobile Cotton Press y. Moore. . . 752 

Moliere y. Pa. F. Ins. Co 77 

Monck y. Monck 663, 666 

Monell y. Colden 405 

Monkhouse y. Holme 460 

Montgomery y. Dorion 211, 212 

Montgomery y. Walker 548 


Cases Cited. 


Montpelior Academy t. George. . 605 

MontriUo ▼. Haugbton 76 

Moodiev.Eeid 252 

Moore V. Eaatman 242 

Moore v. Fox 549 

Moore v. Holoombe 633 

Moore v. Kelly 145 

Moore v. Moore 669 

Moore v. Paine 741 

Moore v. Small 452 

Moore v. Smith 459 

Moore v. Vick 76 

Moore v.Viele 368, 369 

Mordecai v. Tankersly 693 

Morgan v. Butterfield 161 

Morgan v. Congdon 522, 523 

Morris v. Dewit. 498 

Morris V. Edgington 103, 110 

Morris v. Floyd 384 

Morris V. Kniffin 260 

Morris v. Phelps 52 

Morris v. Bosser 484 

Morrison v. Blodgett 373 

Moss V. Gallimore 119 

Mott V. Alger 126 

Motte V. Dorrell 645 

Motteux V. St. Anbin 471 

Moidton V. Robinson. . .317, 318, 321 

Mount V. Morton 245 

Mowatt V. Carow 464 

Mowbray v. Canningham 419 

Mowrey v. Walsh 324, 325 

Madd V. Beauchamp 700 

Muldonv.Whitiock 48 

Mulford V. Shepard 76 

Mulliken v. Au^hinbaugh 496 

Munn V. Commission Co 645 

Munroe v. Perkins 157 

Murfrey V. Brace 328 

Murphy v. Hubert 542 

Murphy v. Morland 145 

Murray v. Barney 387 

Murray V. Gouvemenr 48 

Murray v. Judson 388 

Murray v. Kneeland 311 

Mussell V. Cooke 549 

Musser v. Brink 321 

Myerv.Cole 37 

Nash V. Nash 679 

NauffatuckCutleryCo.T.Baboock 327 

Naylor v. Mangles 522 

Needles v. Needles 578, 580 

Neimcewicz V. Gahn 391 

Nelson v. Matthews 390, 562 

Nevan v. Roup 522, 523 

NewaU V. Wright 119 

NewbegAan v. Pillans 713 

Newcomb v. Bamer 315 

Newell V. Homer 725 

New England M. Ins. Co. y. 

Chandler 142 

Newhall v. Dunlap 218 

New Ipswich Fac. v. Batdielder. 87 


Newman v. Foster 547, 562 

Newman v. Gibson 166, 168 

Newman v. Newman 570 

New York Fireman's Ins. Co. v. 

Bennett 186 

NichoUs V. Lafferty 475 

Nichols V. Bastard 610 

Nichols Y. Michael 327 

Nicholson V. Dnuy Bldgs. £a. Co. 579 

Nicholson v. Munigle 121 

Nickle V. McFarlane 511 

Nipper v. Groesbeck 260 

Noble V. Adams 326 

Noble V. Bosworth 214 

Noble V. Googins 390 

North River Bank v. Bogan. ... 387 

Nortonv.Cook 250 

Norton Y. Morden 76 

Norton v. Pettibone 613, 615 

Noetrand Y. Wright 309 

Nott Y. Douming 612 

Nourse y. Prime 645 

Cakes y. Moore 523 

Cakes Y. Cakes 668 

Oakley y. Schoonmaker 318 

O'Bannon y. Paremonr 129 

Ocean Ins. Co. V. Frauds 84 

O'Connor, ^2; parte 203 

O'Connor v. Harris 578, 580 

Odiorne v. Lvf ord 227 

OTallon v. Soismenu 56 

Offlvv.Ward 646 

Ogden V. Saunders 248 

Ogilvie Y. Foljambe 728 

Ogle Y. Atkinson 427 

O^eUy V. O'KeUy 155 

Okie Y. Spencer 725 

Olcott V. LitUe 454 

OliverY. Pray 607 

Olmstead y. Hotaling 327 

Omelvany y. Jaggers 238 

Ontario Bank Y.Lightbody. | *^» ^ 

Orange Co. Bank y. Brown 438 

Oriental Bank y. Haakins 94 

Orr Y. Bank of U. S 39 

Orser Y. Storms 617 

Osbom Y.Bell 322 

Osiander's Case 637, 638 

Ostrander y. Brown 435, 436 

Oswitohee Co. y. Hope 690 

OtisY. Cusack..: 245 

Otis Y. Thompson 318, 322 

OYorfield Y. Christie 473 

Overton Y. Williston 494 

OYiattv. Sage 812 

Owden Y.Campbell 395 

Owen Y. Boyle 84 

Owen Y. Warburton 598 

Oxford Bank v. Haynes 770, 771 

Paige Y. Session 579 

Pain Y. Packard 177, 178» 725 

Cases Cited. 



Palmer ▼• Hand 633 

Barham ▼. Bandolph 738 

ParkT. Batea 619 

Ptoker ▼. Garter 290 

Parker ▼. Smith 113 

Plu-ker ▼. Swan 561 

Pftrker'a Ex'r v. Lambert^ BxV. . 713 

Parkins ▼. Hawkahaw 292 

Parks V. Caahman 691 

Parmelee v. Simpaon 138 

Parsons ▼. Paraona 678 

Partridge V. Partridge 668 

Pasley y. Freeman 736 

Pkktapsco Ina. Co. v. Coulter.... 283 

Patapeco Ina. Co. v. Smith. 48 

Pateshall V. Apthorp 48 

Patterson v. Hawthorne . . • .469» 461 

Pkktterson v. Marts 633 

Pattinger V. Wiffhtman 626 

PatUaon V. Patl&n 668 

Patton V. Patton. 668 

Pavey v.Burch 720 

Peacock ▼. Pembroke 681 

Peck V. WiUiama 296 

Peckham v. Faria 419 

Pederick v. Searle 476 

Peele v. Chever 136 

Pelican, Case of. 339 

Pelletrean v. Jackaon 130 

Pemberton v. Staplea. 694 

Penderv.Bhea 321 

Pendleton v. Stewart 390^ 662 

Penn v. Bennett 368 

Penn. Salt Mfg. Co. v. Neel .... 440 

Pennsylvania v. Bdl. ... 642 

Pennsylvania R. R. t. Beny . . . 633 

Pentz V. Stanton 211 

People V. Anderson 298 

People V. Beigler 366 

People V. Board of Police 809 

People V. Cassels 366 

People V. Dannat 128 

People V. Dixon 364 

People V. Enoch 84 

People y. Oanl 203 

People y. Gilbert 876 

People y. Halaey 309 

People V. Haynes 241, 243 

People V. Herkimer 84 

People y. Hyler 364 

People y. Martin 364 

People v. Mather 638 

People y. MoGanren 298 

People y. MorreU 413 

People v. Norton 607 

People y. Bawson 366 

People y. BenssehMr B. R. Co.. . 664 

People v. Bnlloff 364 

People v. Shalmaa 328 

People V. Spencer 309 

People y. Sutherland 308 

People V. Thompkina 366 

People y. Tinder 365 

Fsople r. Tioga C. P 116 


People y. Van Home I.. 365 

People y. Williama 250 

Percival y. Hiokey 407 

Perkinay. Parker 649 

Perkins y. Catlm 138 

Perkins v. Lookwood 08 

Perkin Warbick's Caae 362 

Perley v. Chandler 105 

Perley v. Spring 149 

Perrine y. Qieeseman 167 

Perry y. Wheelock 680 

Peter v. Compton 640 

PettingiU y. Butterfield 678» 680 

Pettygrove y. Hoyt 41 

Philbnck y. Ewing 89 

Philips V. Peters 372 

PhiHpaon y. Bates 69 

Phillips y. Allan 249 

Phillips y. Astling 770, 771 

Phillipa y. Bateman 264^ 265 

Phillips y. Cook 374 

Phillipa V. Gregg 510, 511 

Phillipa V. Phimps 655 

Philpot v. Briant 643 

Piatt y. United States 158, 161 

Pickering y. Appleby 548 

Pickering v. Wendell 581 

Pickett v. Bollock 523 

Pidcock V. Bishop 403 

Pierce v. Benjamins 60 

Pierce V. Bornham 713 

Pierce V. Crafts 603 

Pierce V. Hubbard 706 

Pierce y. N. 0. BaUding Co 219 

Pierce's Adm*r v. Trig^a Heirs . 655 

Pierrepont v. Edwanu 671 

Pierson y. People 250, 297 

Pigott v. Thompson 661 

Hkev.Collms 578, 580 

Pikev.Galvin 130 

PiUans y. Van Mierop 264 

Pillsbory v. Dugan 76 

Pinkard y. Smi& 577 

Pinnel'sCase 95^96, 97 

Piponv. Cope 288 

Pitcher y. lavingBton 731 

Pitts y. Cottmffham 734 

Planters and Merchanta' Bank y. 

Andrews 744 

Platts y. Wahath 371 

Pleasants v. Pendleton 617 

Pleasants V. Boss 607 

Plummer y. Jarman 578, 579 

Plymouth y. Werring 248 

Poignard y. Smith 193 

Polk y. Plummer 566 

Polk v. Beynolds 74 

Pomeroy v. Bice 669 

Poolv.Minge 690 

Poole V. Symonds 610, 611 

Popkiny.Bnmstead 393 

Pordage V. Cole 165» 758 

Porter v. Clinton 144 

Porter y. Hooper • 12Q 


Cases Cited. 


Porter v. McOiimit 469 

Portorv.Noyet 416 

Porter v. Perkins 246 

Poet V. Neafie 594 

Pott V. Nathana 725 

Potter y. Pearson 268 

Poulton V. Wiseman 381 

Pound v. PaUen's Leasee 660 

Powellv.Clark 889 

Powell V. MoDson etc. Mfg. Co. . 214 

Powers Appeal 128» 129 

Powers v.^ggs 69 

Pownal V. Feirand 643 

Prattv. Chase 250 

Pratt V. Sanger 116 

Pray V. Burbank 199 

Prentiss V. Bliss 692 

Presoott V. Fisher 711, 712 

Fresoottv. Nevers 124, 125 

Pressley v. McDonald 681 

Preston v. Christmas 592 

Preston V. Crofat 143 

Preston y. NeaJe 147 

Price y. Junkin 145, 381 

Price y. Sessions 579 

Price V. Watkins 461 

Price y. Williams 644 

Pridey.Boyce 583 

Prince y. Commercial Bank of 

Colambus 505 

Pringle y. Samuel 390 

Pringle y. Wemham 113 

PrisciUa E. Y amall's Will 78 

Probate Court y. Niles. .578, 579, 581 

Proctor y. Newhall 307 

Prodgers y. Langham 144 

Proprietors y. Springer 193 

Prop, of Canal Bridge y. Gordon. 217 

Prop, of Claremont y . Carleton . . . 615 
Prop, of Charles Riyer Bridge y. 

Prop, of Warren Bridse 502 

Proprietors of Locks and Canals 

y. Nashua & L R. B. Ca 115 

Proyidence Bank y. Billings. . . • 502 

Pruden y. Alden 144 

P. &S. R.R. Co. y. Biggar 505 

P. & S. R. R. Co. ▼. Woodrow.. 505 

Purdew y. Jackson 576, 680 

Putnam y. Sulliyan 456 

Putnam y. Wise 322 

Putnam y. Wyley. 325 

Pyle y. Pennock 494 

Pyn y. Lockyer. 670 

Radclifle y. Dayis. 643 

Ramsdell y. Soule. 603 

Bamsey y. Johnson 173 

Randall y. McLaughlin 89 

Randall y. Randall. 655 

Randall y. Sanderson 89 

Ranky. Rank 481 

Raw y. Alderson 196 

Rea y. McEaohron. 307 

Beady. CutU 771 

Ream y. Hamish. 319 

Reedy. AbbOT 399 

Reed y. Buckley 461 

Reedy. Cole 431 

Reedy. Dickey 614 

Reedy. Pruyn 673» 576 

Reedy. Reed 542 

Reed y. Von Ostraod 43 

Reesey. Smith 129 

Reese y. Wliite 755 

Reeye y. Dalby 395 

Ref . Prot. Dutch Chnreh y. Mott. 633 

Regan y. Howe 155 

Regents y. WilUams 2.38 

Rehoboth y. Hunt 223 

Reid y. McNauffhton 372 

Remington y. (x>ngdon 36 

Republio y. Wingate 364 

Resor y. Resor 678 

Respublica y. Dennie. 36 

Respublica y. Newell. 84 

Rexy.Acton 334 

Rex y. Corp. of Bedford Leyel.. 196 

Rex y. Crayen 83 

Rexy.Dalton 1 333 

Rexy. Dixon 289, 294 

Rex y. Greenwood 334 

Rex y. Haydn 290 

Rex y. Jaryis........ ......... . 82 

Rexy. Smith 289, 294 

Rex V. Thirkell 599 

Rexv.Varlo 209 

Rex y. Watkinson 291 

Rex y. Woodfall 598 

Reynolds y. French 372 

Reynolds y. Pool 321 

Rhea y. Rhenner 711. 712 

Rheem y. Naugatnok Wheel Co. 505 

Rhodes y. Lee 718 

Ricardy. Williams 125, 134 

Rice y. Bancroft 614 

Rico y. Goye 219 

Rice y. HoUenbeck 322 

Rich y. Eneehmd 698 

Rich y. Penaeld 312, 314 

Richard Liford*s Case 214 

Richards y. Folaom 221 

Richardson y. Hooper 157 

Richardson y. Lincoln 138 

Richardson y. St. Joseph Lx)n 0;>. 517 

Richmond y. Crudup 94 

Richmond y. Foote 309 

Richmond Mfg. Co. y. Starks. . . 218 

Riddle y. Proprietora 39 

Rider y. Maul 642 

Rider y. Wager 669 

Riffgs y. Deimiston 36 

Riley y. Jameson 191 

Rinehart y. Olwine 319 

Ringgold y. Kewkirk 772 

Ripley y, Berry 226 

Robards y. Hutson 714 

Robby. Montgomery... 166, 167, 760 

Robbins y. Treieulway 

Cases OnxD. 


BbbbJte T. Windofw 607 

BdbertoT. And«nM 143 

Bobarto T. Bandel 328 

BoberteT.WpM 610 

Bobertacm y. Ctenge S17 

Bobertacm ▼. Kennady 438 

Bobertaonv. Smith 69 

Bobinaon'tOMe 240 

Bobinaon V. Bftloheldar 167 

Bobinaon v. Dmunora 465 

Bobinaon v. Gilbreth 737 

Bobinaon ▼. B0ynolda..7QO» 710. 712 

Bobinaon y. Byan 300 

Bobinaon V. Smith 260, 659 

Bobinaon y. Woelppar 681 

Bobaon y. Kemp 202 

Bobjy. West 199 

Bockwood y. Aloott 161 

Bodgen y. Pike Goon^ Bank. . . 678 

Bodney y. Shankland 654 

BogoEB y. Bradshaiw 277 

Bogexa v. Jonea 68, 192 

Bogeray. Phillipa 711, 712 

Bogera y. Sannoera 633 

Bcwera V. Waller 404 

BolliQay. Dyer 98 

Bomillyy. Jamea 728 

Booty. Chandler 325 

Booty. French 324, 381 

Booty. Wright 297, 387 

Bootes y. Wellford 612 

Booth y. Wilwn 610 

Boeey. Bates 713 

Boaey. Miles 108 

Boss' Appeal 404^ 618, 542 

Boss y. Bmydon 695 

Boesv. Ewen 257 

Bossy. Hunter 283 

Boesy.Luther 602 

Boss y. Overton 607 

Bossitery. Bossiter 219 

Both y. Palmer 322, 327 

Bowley t. Bigelow 826^ 327, 328 

Badstone y. Anderson 670 

Bnffin y. Armstrong 645 

Bngsles y. Keeler 188 

Bundle y. Del etc Ckmal Co. . . 238 

Biishf ord y. Hadfield 519 

Boshf orth y. Hadfield 622 

Russell y. Allen 121 

Boss y. Alpaagh 121 

Russell y. Howard 322 

Bossell y. Bichaid 753 

Byan, J£bp oorfe 364 

Ryder y. Gilbert 374 

Ryer y. Stockwell 147 

Ryerss y. Wheeler 245 

Sadler y. Bobbina 692 

Salisbnry y. Andrews 103, 110 

Salter y. KidAly 646 

Saltmanh y. Beene 633 

Sampson y. Qaimm 720 

Bamnalay. BoRowBoala..^ 126 


Sanborn y. Colman 60 

Sandfordy. Remington 292 

Sands y. Codwise 702 

Sargent y. Conmer 319 

Salient y. Leeland 586 

Sttonders y. Real 167, 168 

Sannders y. Dehaw 381 

Saunders y. Stotts 695 

Sayagey. Bex 211 

Sayage y. Winoheater 392 

Savile y. Blaoket 671 

Sayings Bank y. Dayia 210 

Sayinn Wk of N. H. y. Dayia.211, 212 

SawaU y. Bader 508 

Sawtell y. Bndhford 713 

Scankn y. Wright 77 

Scarf e y. Morgan 522 

Sehemerhom y. Vanderiieyden. -I g^ 

Schermerhom y. Am. L. Ina. Co. 387 

Schneider y. MoFarland 309 

Schoolcraft y. Thompaon 401 

Scott y. Coleman 84 

Scott y. McMilleo 633 

Scott y. Price 461 

Scott y. Bushman 706 

Scott v. Simmons 327 

Scott y. Surman 452 

Scoville y. Canfield 420 

Scroeppel v. Coming 327 

Scruggs v. Cass 443, 444 

Scrutton y. Pattillo 578, 679 

Scuifi^d y. Howes 460 

Seaman V. Seaman 264 

SeariDg y. Searing 580 

Sedg^ck y. PUms 381 

Segar v. Atkinson 37 

Seguine y. Segnine 260 

Seibert y. Kline 517 

Seixasy. Wood 448 

Sellick y. Munson 625 

Senhonse y. Earl 381 

Sergeant y. Stryker 66 

Setzar y. Wilson 403 

Seward y. Jackson 91, 142 

Seymour y. De Lancy 415 

Seymour y. Delanoey 633, 738 

Shaftsbury y. Shaftsbury 668 

Shanks y. Dupcmt ' 224 

Sharp v. Brandow 192 

Sharrington y. Stratton 473 

Shaycr y. White 420 

Shawv. Clark 98 

Shaw y. Haywood 155 

Shearick v. Huber 424 

Shearman y. Angel 77 

Shelbury y. Scotsford 423 

Shelby v. Shelby 454 

Sheldon V. Wright 309 

Shell y. Haywood 494 

Shenk y. Phil. Steam Prop. Co. . 438 

Sherban y. Commonwealth 84 

Sherley's Case^ 362 

Sherman y. Bnmham 395 


Cases Cited. 


Sherman v. Boyoe 573 

4Slierwood ▼. Readd 809 

Sherwood v. Salmon • • . • . 734 

Shiras v. Morria 218 

ShoUenberjKeic v. Brinton ....... 449 

Shonk V. &own 440 

Short V. Moore 581 

8hafelt V. Sbafelt 387 

Shnttleaworth v. Noyea 581 

Sibley V. Waffley 308 

Stckela v. Pattiaon 464 

Simmona ▼. Almy 98 

Simaiona v. Slmmona 260 

Simonda and Loder v. White. . . • 672 

Sima'Case 203 

Sima V. Davia 89 

Singer v. McCormick 464 

Singleton v. Carroll 68 

Singtack v. Harding 416 

SirThomaa Abney v. Miller.... 670 

Siak V. Cunningham 185 

Siter'aCaae 580 

Skinner v, Barney 725 

Skipwith T. Cunningham 749 

Slandeford V. DeTol 578 

Slatter V. Noton 670 

Slaughter v. Bamea 84 

Slaymaker y. Bank 579 

Sleeper V. Chapman 94 

Sleighterv. Harrington... 37 

Slimmer v. Merry 698 

Small V. Atwood 735 

Small V. Cromwell 309 

Smallv.Small 260 

Smart v. Williuna 144 

Smethurst v. Thnraton 578 

Smith V. Alien 566 

Smithy. Atwood 580 

Smith y. Blagge 700 

Smith y. Chapman 692 

Smith y. Cheetham 597 

Smithy. Clark 400 

Smith y. Cutler 607 

Smith y. DanieVa Ex'ra 755 

Smithy.Eamea 638 

Smithy. Eyana 389, 562 

Smith y. Gorton 262 

Smith y. Holyoke 145 

Smith y. Hoemer 194 

Smith y. Jonea 416 

Smith y. Kearney 395 

Smith y. Kemper 654 

Smithy. Knox 543 

Smith y. Lathrop 500 

Smithy.MiUee 406 

Smithy. Newby 189 

Smithy. Orsen 373 

Smith y. Paraona 250 

Smithy. People 328 

Smithy. Rice 306,308, 318 

Smith y. Silence 711 

Smithy. Smith 250 

Smith V.Starr 270 

Smith y. Vaugban 460 

Smithy. Wara. 879 

Smith y. Winatoo. 170 

Smithy. Wright 073, 670 

Smyth y. TankeraW 318 

Sneed*8 Ez'r y. Whita 595 

Snelgroye y. Martin 647 

Sne^lyy. Beed 371 

Society y. Morria Canal Co 238 

Somee y. Brewer 143 

Somea y. Skinner 51 

Sonthcote*8 Caae 607 

South Seal Co. y. Donoomb 644 

Spangler, Ex parte 203 

Speed y.May 420, 500 

Spence y. Bobbina 524 

Spencer y. Bullock 460 

Spencer y. Spencer 668 

Spiera y. Parker 82 

Spinetti y. Atlaa Staamahip Go. . 285 

Spmka y. Robina 670 

Spradlend, Ex parte. 865 

Staatay. Ten Eyok 731 

Stackpole y. Arnold 98 

Stanard y. Eldridge 730 

Stanton y. Ellia 809 

Stanwood y. Stanwood 579 

Staplea y. Bradbury 550 

Stark y. Cannady 484 

Stark y. Parker 464 

Starrett y. Wynn 711 

Statey.Aaron 242 

State y. Brearley 203 

State y. Buckman 84 

State y. Burwell 320 

State y. Daniela 180 

State y. Ferguaon 642 

State y. Freeman 597 

Statey.Hill 364, 642 

State y. Hodgskina 714 

State y. Jewell 318 

State y.Kreba 581 

Statey. McNab 364 

Statey. MUIa 364 

State y. Morphin 180 

State y. Korria 642 

State y. Reigart 578 

State y. Roberta 642 

State y. Robertaon 580 

State y. Roper. 299 

Statey. Snuth 84 

Statey. Twitty 84 

Statey. Zulick 203 

Statea y. Ruse 365 

St. Clair y. Morria 392 

Steamay.Hall 161 

Stebbina y. Eddy 389 

Steele y. Boyd 725 

Steiglitz y. Ksginton 218 

Stevens v. VMighan 430 

Stephenson y. Primrose 742 

Sterry v. Arden. 144 

Stetson y. Maaaachuaetta Mutual 

Ins. Co 431 

Ste'wart'a Appeal « 570 

Cases Cited. 


Stewart t. Donghty . . . .814» 316, 316 

8t.GeonreT. Wake 662» 653 

StUesv. Griffith 424 

StilesT. Stewart 84 

3t. John T. Holmes 471 

StockweU ▼. Mariu 441 

Stooard ▼. Dankin 429 

Stone v.Oinbham 142 

Stone V. PattezBon 121 

Stone V. Sanborn 144 

Stone V. Maaeey 461 

Btone ▼. Walker 153 

Storr v; Crowl^ 435, 436 

Storra v. Barker 49 

Story V. Odin 103 

Stonghton v. Baker 211 

Stoaghton y. Bappalo 424 

Stout V. Aahton 178 

Btontv.Hart 669 

Stout V. McAdams 238 

Stoyer y. Eycleshimer 128 

Btoyer y. Freeman 77 

Stow y. Ck>nverBe 36 

Stow y. Steyens 416 

Stow y. Tiflft 659 

Stow y. Wyee 211 

Stowell y. Kobinson 160, 161 

St. Peter y. Denison 278 

Strathmore y. Bowes. . .652, 653, 554 

Street y. State 364 

Striuffer y. Coombs 420 

Strithorst y. Graeme 187 

Sfcroble y. Smith 469 

Strong y. Man. Ins. Co 46, 431 

Strong y. Pbice 328 

Strong y. Smith 681 

Strong y. Strickland 387 

Stmppman y. Muller 396 

Stoart's Heirs y. Coalter 659 

Staddy y. Sanden 291 

Sturges y. CrowinshieM 248 

Sturgess y. Cary 676 

Suffem y. McConnell 647 

Saomer y. Murphy 194 

Sumner y. Powell 778 

Sumner y. Steyens 126 

Sumner y. Williams 37, 38 

Supervisors of Alleghany Co. y. 

Van Campen 570 

. Surtees V. Hubbard 648, 652 

Susquehanna Coal Co. y. Qoick. 611 

Sutton y. Buck 608 

Swan V. Parker 661 

Swartwout y. Pajrne 645 

Sweet y. Jenkins 720 

Swett y. Boordman 260 

Swetty. Brown 219 

Swett y. Patrick 224 

Swift V. Fitzhugh 693 

Swift V. Thompson 214 

Swinford y. Bum 605 

Sykesv. Sykes 81 

Sylvester y. Crappo 613 

Syme v, Montague 743 


Symmes y. Frader 146 

Symonds y. Hall 319 

Tabele y. Tabele 392 

Tagart y. Indiana 189 

Tamplin y. Addy 324 

Tanner y. Hills 32? 

Tappan y. Brown 287 

TKtble, Ike parU 200, 202 

Tatlock y. Harris 602 

Taylor y. Bradley 322 

Taylorv. King 693» 695 

Taylor y. Lan^ford 460 

Templeman y. Case. 498 

Ten Broeck y. Sherrill 278 

Ten Eyck y. DeL etc. Canal Co. . 238 

Terrett y. T^lor 502 

Territory y. Benoit 364 

Terry y. Duntxe • 165 

Terry y. Hopkins 653 

Thacher y. Dinsmore 48, 69 

Thallhimer y. Brinokerhoff 562 

Thatcher y. Powell 307 

Thayer y. City of Boston 218 

The Anna La Porte 346 

TheApoUon 353 

The Brig Thaddeus 676 

TheCalifomia 278 

The King y. BeUringer 209 

The King y. Miller 209 

The King y. Thomas 640 

The King V. Whitaker 209 

The Queen y. Kirkham 640 

The Schooner Exchange y. Mo 

Fadden 34*; 

The Schooner Beeside 719 

The Vrow Anna Oatharina 346 

Thicknesse y. Liege 460 

Thomas y. Black 189 

Thomas v. Chicago 678, 679 

Thomas y. Croswell 36 

Thomas y. Bumaa 690 

Thomas y. Folwell 709 

Thomas y. Garyin 126 

Thomas y. Goodwin 144 

Thomas y. Hess 422 

Thomas y. Patten 194, 226 

Thomas y. Pickering. 125 

Thomas v. Powell 728 

Thomasy. Tanner 700 

Thomas V. Terry 644 

Thomas y. Thomas • 695 

Thomasy. White 454 

Thomason v. Demotte 365 

Thompkins v. Hass 517 

Thompson y. Ketcham 420 

Thompson y. Leastedt 260 

Thompson y. Mawhinney 318 

Thompson y. Miller 690 

Thompson v. Stevens 260 

Thompson y. Watson 178 

Thompson y. White 535 

Thorp V. Burling 325 

Thorpe V. Thorpe 769, 760 


Cases Cited. 

Threadgill v. Jenzungs 565 

Thresh v. Bake 157 

Tharet v. Jenkixu 420 

Thurston v. Blanchard 324, 827 

Ticknerv. Boberte 420 

Tiddv. lister 580 

Tidmarsh v. Washington Ins. Co. 283 

Tieroan V. Beam 633 

Timber V. Kata 578, 579 

Timothy V. Wright 155 

Tindal V. Bright 173 

Tinker V. McCauley 270 

Tinney v. Ashley 416 

Titus V. Neilson 392 

Tobey V. Barber 48 

Toddv.Pfoutz 53C 

Toof V. Bentley 706 

Toomey v. Purkey 602 

Torrey V. Baxter 612 

Torry v. Bowen 260 

Touro V. Cassim 420 

Towers v. Osborne 549 

Town V. Needham 126 

Townsend v. Bogart« 327 

Townsend v. Isenberger 319 

Townsley v. Sumrall 150, 715 

Train v. Jones 584 

Treviuian V. Howell 36 

Trimmer v. Bayne 660, 663 

Tritt V. Col well 678, 579, 580 

Trotter v. Curtis 645 

Trotter v. Strong 458 

Trouffhton*8 Adm*r v. Hill's ExV 709 

Troy Turnpike v. McChesney .... 217 

Trumbo v. Cartwright 157 

Trumbull V. Ker 398 

Trustees v. Calhoun 260 

Tucker V. Taylor 523 

Tupp V. Riley 322 

Turberville V. Porter 648 

Turner v. Robinson 462 

Tumey V. Wilson 438 

Turpin v. Brannan 547 

Turtle V. Muncy 713 

Turton v. Turton 579 

Tuttle V. Catlin 654 

Tuttle V. Fowler 580 

Tuttle V. Jackson 245, 562 

Tuxworth V. Moore 617 

Twee V. Gebroeders 347 

Twitchell v. Shaw 98 

Twyne*s Case 142, 702 

Tyler V.Young 694 

Underwood, Matter of 306 

Union Bank v. Emerson 214 

Union Bank v. Planters* Bank. . . 714 
Union Bank of Weymouth v. Wil- 
lis 138 

United States v. Appleton 103 

United States v. Bainbridge 199 

United States v. Booth 200, 201 

United States v. Bradley. . . .569, 570 
United States v. Buford.375, 376. 377 


United States V. Hoar 375 

United States v. EUrkpatrick 622 

United States Bank ▼. Evans.. . . 680 

United States v. Simpson 595 

United States V. Tingrey 182 

United States V. WacSwell 622 

Vail V. Durant 147 

Valentine V. Fish 337 

Vallejo V. Wheeler 282 

Vanada v. Hopkins 84 

Van Alstyne v. Van Slyok 270 

Van Amringe v. Morton 666 

Vance v. McLaaglUin 581 

Vance v. McNairy 560 

Vanaeef v. Fleet 324 

Vanderheyden v. Young 277 

Vanderveer v. Alston 579 

Van Derveer v. Wright 270, 271 

Van Doren v. Everitt 481 

Vanheath v. Turner 267 

Vanhook v. Bamett 566 

Van Hook V. WhiUock 250 

Van Hooser v. Van Hooeer 260 

VanKleek v. Leroy 327, 328 

Van Neste v. Conover 327 

Van Raugh v. Van Arsdahi.249, 250 

Van Rensselaer v. Kearney 130 

Van Rensselaer v. Cottrell 309 

Van Rensselaer v. Whitbeck.... 309 

Van Slyke v. Sheldon 309 

Vanuxem v. Hazlehursts 250 

Varian v. Stevens 396 

Varick v. Jackson 562 

Varick v. Smith 238, 559 

Vamer v. Nobleborongh 48 

Vartier v. Underwood 392 

Vaux's Case 140 

Vaux V. Draper 312 

Vaux v. Steward 312 

Verplank V. Sterry 144 

Vicary v. Moore 167, 161, 625 

Vielev. Gobs 328 

Vincent v. Cornell 60 

Visscher v. Hudson R. R. Co. . . 308 

Von Hofl6nan v. Ward 260 

Voorhis v. Freeman. 518 

Vose v. Cockcroft 250 

Wade V. KiUough 732 

Wadsworth V. Marsh 702' 

Wagers v. Schuyler 731 

Wagg's Ex*r v. Gibbons 710 

\Vainwright v. Webster 449 

Waitv. Morris 368 

Wake v. Parker 395 

Wakemau v. Sherman 372 

Walanv. Kirby 98 

Walden v. Chambers 578 

AValford v. De Pienne 710 

Walker v. Broadstock 614 

Walker v. Fitts 318, 319 

Walker v. Sherman 214, 215, 491 

Walker v. Walker 678, 579 

Gases Cited. 



WalkiJUT. Stevens 372 

Wallace V. Cook 196 

Wallace V. Dnffield 454 

Wallace V. Harris 155 

Wallace V. Moras 327, 342 

Walls V. Preston 319, 320 

Walsh V. Adams 374 

Walsh V.Hall 405 

Walsh V. Gilmor 687 

Walton V. Dodson 264 

Waltson V. Bryan 319 

Ward v.Creswell 58 

Ward V.Evans 651 

Ward V.Henry 583 

Ware V. Bradfoid 752 

Ware V.Ware 578 

Warinic V. Warren 614 

Warner y. Abbey 319 

Warner V. Bacon 121 

Warner v. Blakeman 381 

Warner v. Hoisington 320 

Warner v. McGary 613 

Warren v. Crabtree 388, 645 

Warren v. Leland 607 

Warren V. Mathews 58 

Warren v. Ocean Ins. Go. ..... . 217 

Warrington v. Furbor 771 

Waaliabaagh v. Entriken 130 

Waterman v. Robinson 607, 609 

Waterman v. Soper 226 

Watkins v. Buret 142 

W^atkins v. Taylor 645 

Watson's Case 337 

Watson V. Gregg 477, 511 

Watson V.King 196 

Watson V. Mercer 502 

Waymell V. Reed 403 

Waynam v. Bend 603 

AVeaver v. Lawrence 424 

Webster V. Cobb 270 

Weeks V. Tjrbald •... 370 

Wcems V. Stallings 317 

Weems v. Weems 579, 580 

Weir V. Fitzgerald 260 

Welchv.Hall; 316 

Welchv. WUcox 115 

Weller v. Weedale 574 

Wells V. Chapman 387 

Wells v. Hollenbeck 318 

Wellsv. Wright 476 

Wellsv.Ody 113 

Wells V. Prince 133 

Wellsv. Smith 633 

Wendell v. Van Rensselaer 49 

Wcntworth v. Miller 321 

Wentworth v. PortsmoaUi etc. R. 

R.Co 318 

Wemwag v. Pawling. 484 

West V. Canningfaam. 508 

West V. McConnell 701 

West Chester School District v. 

Darlington 528 

Westfallv. Braley 449 

Weston V. Barker 648 


Weston V. Sampson 59 

Wethered v. Wethered 128 

Whaley V. Bagnd 540 

Whalev V. Eliot 390, 562 

Wheatley v. Low 652 

Wheatonv. Baker. 327 

Wheeler v. Bowen 581 

Wheeler V. Bollard 708 

Wheelerv. Collier 36 

Wheeler v. Moore 578, 581 

Wheelock v. Young 277 

Wheelwright v. Depeyster 69 

Wheelwright v. Wheelwright. . . 154 

Whelpdale's Case 565 

Whitaker v. Sumner. 738 

Whitbeck V. Patterson 260 

Whitbock V. Van Ness 48 

White's Appeal 494 

White V. Canfield 250 

White V. Crawford 103 

White V. Hussey 381 

White V. Parkin 157 

Whitev. Osbom 373 

White V. Trumbull 626 

White v. Union Lis. Co 612 

Whiteman's Ex'x v. Wilmington 

etc. R.R.C0 39, 238 

Whiting V. Barney 296, 297 

Whiting V. Dewey 51 

^Vllitlock's Case 61, 64 

Whitlock V. Horton 316 

Whitmore v. Bowman 098 

WTiittier V. Dana 161 

Wickes V. Gogerly 645 

Wiggin V. Amory 285 

Wedip:en v. Boston Elastic Fab- 
ric Co 98 

Wiesner v. Baun. 129 

Widgery v. Tepper. 578 

Wiggins V. Blount 578 

Wilier V. Sisson 322 

Wilbraham v. Snow 426, 432 

Wilcox V. Union Ins. Co 285 

Wild V. Bank of Passamaquoddy 230 

Wilde V. Fisher 693 

Wiles V. Brown 365 

Wilkerson v. Goldthwaite 690 

W ilkiming v. Schmale 309 

Wilkins'Case 325 

Wilksv.Back 211 

Willcocks, ExparU 209 

Willet v. Overton 76 

Williams' Appeal 440 

Williams'Case 482, 483 

Williams V. Cutting 268 

Williams v. East Lidia Co 283 

Williams V. Ensign 614 

Williams v. Green 678 

Williams v. Jones 188 

Williams v. Landman 542 

Williams v. Leper 150 

Williams v. Morland 108 

Williams v. Nelson 238 

Williams v. Peyton 307 


Cases Cited. 


Williams y. State 318 

Williams T. Tilt 888 

Williams ▼. Von Valkenborgh... 308 

WiUingy. Peters 371 

Willis V. Brown 153 

Wills v. Barrister 622 

Wills V. Maccormiok 605 

Wilson V. Anderton 427 

WUson V.Bibb 617 

Wilson V. Collishaw 511 

Wilson ▼. Gamble 223 

Wilson V. Jordan 732 

Wilson T. Martin 522 

Wilson V. Myers 600 

Wilson V. Piggott 667 

Wilson V. Torbert 612 

Wineland V. Coonce 381 

Winn V. Bob 81 

Winsor y. McLellan 04 

Wiserv. Blachly 76 

WiBtow'sCase 214 

Withers y. Baird 738 

Witmer's Appeal 404 

Wittev.Hj^e 112 

Wood y. Southwick 140 

Wood y. Jackson 460 

Woodbury y. Long 

Woodhnll y. Wagner 249 

Woodruff y. Adams 319 

Woodsy.Nizon 424 

Woodson y. Barrett 645 

Woolway y. fiowe G14 

Worrally. Bboads 8<J 

Wnj, Ex parte 364 

Wright y. Mayer 289 

Wright y. Morse 138 

Wright v.Nutt 605 

Wrightv. Turner 464 

WriSit y. Wright 128 

Wydie y. MAi*b]Sn G94 

Wyndham y. Chetwynd. . . .255, 257 

Tanoey y. Downer 606 

Yorke y. Oreenongh 422 

Yerby y. Ljmch 578 

Yoongy. Adams 442, 443 

Yoong y. Harris . . . •« 693 

Young y» Moamer •••• •••^••••. 601 

Young y. Peek 224 

Zoach y • Woolston «*,63, 64 

y.Ohiktb 7» 

American Decisions. 



nr TBS 




[M XAxn, 9.] 

€v Aoncur or Lcm* Two Abticlss oak not bb Ck>uPLBD to Muartidii if 
one of them is libelous or ziot, the aitidee not being published in the 
Bune paper. 


def endant» and the burden of disproving it is thrown on him. 


Tbespass on the case by Samuel Usher against Luther Sever- 
anoe, for a libel published by the latter in the Kennebec Journal 
of November 5, 1834. • The article accused Usher, who was post- 
master of Kingfield, in Somerset county, of opening a prize 
letter and taking therefrom a bill for a large amount. The de- 
fendant admitted writing the article, but offered in evidence an- 
other article published in the same journal for November 19, 
retracting what had been formerly said, and other evidence 
tending to show that he had reason to believe the truth of what 
was stated in the first article. Several instructions were asked 
for by the defendant and refused. These are stated in the opin- 
ion. The judge charged that no action could be maintained if 
the article was published without malice, but that the article was 
itself evidence of malice, as its truth had not been set up in justi- 
fication; that defendant had a right, as editor, to publish that 
plaintiff had been arrested, and upon what charge, but he had no 
light to assume that plaintiff was guilty or to hold him out as 
such. Juiy found for plaintiff; if the instructions withheld were 
correct or those given were incorrect, verdict to be set aside; 
otherwise judgment to be rendered thereon. 

Ax. nxo. Vol.. XXXVII— 8 

84 Usher v. Ssyebance. [Maine^ 

BouleUe, for the defendant. 

Tenmy^ contra. 

. By Court, WniniAN, 0. J. This is an action for the publica- 
tion of a libel upon the plaintiff, in a newspaper edited by the 
defendant. A verdict was returned for the plaintiff; but with 
the right on the part of the defendant, to have it set aside, and 
a new trial granted, '* if the instructions requested and with- 
held, should have been given, or those which were given were 
erroneous.'* The first instruction requested and withheld was, 
*' that the article of fifth of November taken in connection with 
that of the nineteenth is not on its face libelous." This in- 
struction, we think the judge did right in withholding. We 
know of no authority for coupling two articles, not simultane- 
ously published, and not in the same paper or book, for the 
pturpose of ascertaining whether one of tiiem was libelous or 
not. In this case a fortnight intervened between the two pub- 
lications. The other instructions requested were, that, '* if the 
juiy believed, that the defendant, when he published the article, 
had good reason to believe it true, and published it from good 
motives and justifiable ends, they ought to find for the defend- 
ant." " That if the defendant published the article in good 
faith, believing the public had an interest in knowing the facts 
contained in it, the burden of proving express malice lies on the 
plaintiff;" and, " that, if from the evidence, they were satisfied, 
that the defendant honestly believed, that the conduct of the 
plaintiff was such, as induced the defendant to believe the 
plaintiff had been guilty of the charge imputed to him by the 
defendant, and that the defendant did not publish the article 
maliciously, the jury may well find for the defendant." 

The counsel for the defendant, Mr. Boutelle, has cited numerous 
authorities, and his argument has been elaborate and ingenious in 
support of these propositions. But the authorities, upon examina- 
tion, will be found to apply to a class of cases very different from 
the one at bar. They are cases arising from communications to a 
body having power to redress a grievance complained of; or having 
cognizance of the subject-matter of the communication, to some 
intent or purpose or other; and to cases of communications 
made confidentially, or upon request, where the party request- 
ing information had an interest in knowing the character of the 
individual inquired after; and to cases where a party might be 
honestly endeavoring to vindicate his own interest; as in the 
case of the slander of title; or of guarding against any transao* 

June, 1841.] Usheb v. Sevekance. 35 

tion, which might operate to his own injuzy; and to casee of 
words not in themselTes actionable, except from the special in- 
jury which they might occasion. 

The case at bar is one of a publication addressed to no per- 
son or body of men having power to redress a grievance; and, 
it is rather superfluous to add, not a confidential communication 
to any one; and does not appear to have been designed to guard 
against any injury imminently threatening the individual in- 
terest of the publisher; nor does it present a case of words in 
themselves not actionable. The allegation in the plaintiff's 
writ is, that the publication accuses him of the crime of 
larceny. This allegation being proved, malice is by law im- 
plied, and it would be for the defendant to disprove it. ' The 
burden of proof in such cases is thrown upon him. But it is 
incumbent on the plaintiff first to prove, his allegation, that the 
defendant has, by his publication, accused him of the crime. 
The terms of the article may, to this purpose, be explicit and 
unequivocal; or they may be obscure and unintelligible, in the 
absence of extraneous proof to show their meaning; as in the 
case of the use of words, which are mere provincialisms or 
cant phrases, or terms of art, or where words are used qualify- 
ing or restraining the meaning of other words used. In every 
case it is believed to be the province of the jury, under the 
instruction of the court, to determine the import of the lan- 
guage used: 1 Gar. & P. 245.^ The instruction of the court is 
nothing more than the term imports. It is not mandatory but 
advisory. The instruction requested of the court, we can 
not, therefore, on the whole, regard otherwise than as properly 

The argument of the counsel for the defendant seems to con- 
cede, that the presumption of malice in this case, if the matter 
of the publication may be regarded as malicious, is inferable 
from publication; and in the absence of all evidence to the con- 
trary, the court would be justified in advising the jury, that 
malice was to be inferred, but the evidence to do away with such 
presumption, as has already been seen, must be different from 
that relied upon in the defense. There was, then, no evidence 
in the case, which should have had that effect, and the charge of 
the judge to the jury would not seem to have been, substan- 
tially, at variance with the position admitted by the counsel for 
the defendant, to have been correct. 

Judgment on the verdict. 

— - - ^■^^^^^^— ^^^ 

1. Hunt Y. Algar, Car. k P. M5. 



36 Datis 12. Frszt CB. [Maincg 

PcBUOATiDHS obRcranoro Pnnjo Ofvioiau.— PaWcfttion of the trath» 
from good oiotives aad lor jnstifiaUe euda, though it refloct on the goTem- 
ment or its magiBtntes, does not constitute libel; thoagh it is otherwise if 
done with evil intent: Regpublka v. Detmie, 2 Am. Dee. 402. And editocs 
may public what they please in reUrttOQ to the chaiacter and qnalifinations 
cf candkbtssy bal tiiey are rcspoDsiUe for the tmth of all tiiey so pub- 
lish: Km§ ▼. Be^f 21 Id. 102. For instancea of publications that have been 
held libelovs, see Biggs v. DenTiietou, 2 Id. 145; Thomtu t. Croswell, 5 Id. 
269; Stow v. Converae, 8 Id. 189; Bobbiiu v, Treadway, 19 Id. 152; KiMff ▼. 
Itoot, 21 Id. 102. 

Malicb i!f LiBBL.— The declaration in libel need not ordinarily allege that 
the words were pubUshed maHcioasly; it is snfllcient to state that they were 
false and injnrious: King v. Boot, 21 Am. Dec. 102; malidons intent is to be 
inferred, as a ooadnsten of law, from the publication of a libel, where there 
is no evidence to show the truth of the alleged libel, or its publication, for 
■ome warrantable .purpose: CammomoecJih v. Blemdmg^ 16 LL 214; but ez- 
pres s malice most be prored in pmileged oommnnicationa: King y. Boat^ 21 
Id. 102; Bemimg$om r. Ckmgdom, 13 Id. 431. 

Davis v. Fbenoh. 

(20 Maim, 21.] 

AMUin0rE4TO& b Vtukxvavly Liable on a note which he signs as adminis* 
trator of the deceased. 

Trb defendant mgned a note as administrator ol one Zadock 
French. On this note the jxresent action was brought. It was 
agreed that judgment should be rendered against him, either in- 
diTldually and without costs, or against him in his repreeenta- 
tire capacitj and with costs, as the court might adjudge. The 
case was submitted upon bnefis. 

. G. B. Moody, for the defendant. 

CuUing, contra. 

By Court, Soeflet, J. Where the cause of action exists 
Against the intestate, and the administrator for a sufficient con- 
sideration promises to pay, the action may be brought against 
him in his own right, and a general judgment should be entered 
against him: Wkeeler v. Collier, Cro. Eliz. 406; Alkins v. ffill, 
Cowp. 284. But since the statute of frauds such a promise 
must be in writing. And no judgment can in such an action be 
entered against the estate of the intestate: Eawkes t. Sawnders, 
Id. 280. It was decided in the case of Trevinian v. Howell, Cro. 
Eliz. 91 , where the executor for a sufficient consideration promised 
to pay a debt due from the testator, and the action was brought 
jigainst him as executor, that a judgment against him de boni» 

June, 1841.] Davis v. Fbxnch. 37 

propriiB -was not enoneons. But in Segar y. ABbmson, 1 H. BL 
102, where the action was against the admimstiatrix, it was de- 
cided, that a count on her own promise to pay a debt due from. 
the intestate might be joined with counts on promises of the in* 
testate; and that the proper judgment on all the counts was de 
bonis tesialoris. And Heath, J., in delivering the opinion, says: 
" This is the common mode of declaring against executors and 
administrators to save the statute of limitations; but if it were 
to be considered as making them personallj liable, I do not 
know who would erer take out administration.'' 

The true doctrine on this subject appears to be, that where the 
cause of action existed against the deceased, the executor or ad- 
ministrator may make himself personally liable by a written 
promise founded upon a sufficient consideration. And in such 
case the action should be brought against him in his own rights 
if the plaintiff would have a judgment against him in preference 
to one against the estate. A promise from the executor or ad* 
ministiator, as such, to pay a debt due from the deceased may 
be alleged in an action brought against him as ezeeutor or ad- 
ministrator, and in such case the judgment must be de btrnm 
testaioris. But the executor or administrator can not create a 
debt against the deceased. And it is immaterial how clearly the 
intent to do so may be expressed; for having no power to bind 
the estate he only binds himself by such a contract. And there 
can therefore be no judgment da bonis testcUoris; and the action 
should be brought declaring against him in his own right: 
Barry v. Buah, 1 T. B. 691; Bwnrner v. WUUamfi, 8 Mass. 199 
[5 Am. Dec. 83]; Myer v. Cole, 12 Johns. 349. 

In this case, the contract originated with the administrator, 
and there is no evidence that the debt also did not, and no judg- 
ment can be entered against the estate which he repiresents. 

Judgment against defendant generally, without costs. 

Pkrsonal LiABiLTrr of Ezboutobs ok Gontbacts oascKKsnrG tbb 
Bbtatx. — ^An adnuntBirator is perBonally liable for artides pnicfaaaed by him^ 
thoagh they are for use of an estate: Harding v. Evans, 29 Am. £>ec 255; 
though not for funeral expenses, unless he has contracted for them, or ex- 
pressly promised to pay them: Oregoi-y v. Hooker, 9 Id. 646. An executor 
promising to pay a debt of his testator, and who has assets at the time of th« 
promise, is personaUy liable: SleighUr v. Harrington, 7 Id. 715. So he i» 
personally liable on contracts made by him concerning the necessary matteim 
relating to the estate which he represents: McEUUry v. McKeuzie, 27 Id* 
643. And where the executor of a deceased partner carries on the bosinesa 
with the sarviving partners, he becomes a copartner, and is liable personally 
for the debts of the company: Almp y. Matkar, 21 Id. 701 An executor 

88 State v. Great Works M. & M. Oo. [Maine. 

oonveying real estate nnder an order of the probate court ia personally liaUe 
lor a breach of the covenant of warranty contained in the deed: Stmmar t. 
WiUkum, 5 Id. 83. The principal case was referred to with approval ia 
Luaeomb v. BaUard, 5 Gray, 405. 

State v. Great Works MiLLiNa and Mpg. Oo. 

[30 HAixnB, 41.] 

CoEPORATioN CAN NOT Couuvs A CsiMB OB MiSDKMXANOn, ^or by any 
positive or affirmative act, aa a corporation, incite others to do so. 

When Crims or Misdemeanor is Committed under Color of Corpo- 
rate AuTHORiTT, the individuals, and not the corporation, ahoold be 

Corporation can not be Indicted for a Nuisance for obstmcting a 
navigable river; in such a case the remedy is against those persons by 
whose procurement the nuisance was erected. 

Indiotment against the defendants for erecting a dam across 
the Penobscot river, thereby obstructing the passage of rafts. 
The court instructed the jury that the defendants, as a corpora- 
tion, were indictable, if the obstructions had been erected by 
their procurement through their agents. Defendants excepted 
to this instruction, and the juzy returning a verdict for plaintiff, 
this appeal was taken. 

Bowe and Bogers^ for the defendants. 

OoodenoWf aitomey^eneral, contra. 

By Court, Weston, C. J. A corporation is created by law for 
certain beneficial piurposes. They can neither commit a crime 
or misdemeanor, by any positive or affirmative act, nor incite 
others to do so, as a corporation. While assembled at a cor- 
porate meeting, a majority may by a vote entered upon their 
records, require an agent to commit a battery; but if he does so, 
it can not be regarded as a corporate act, for which the corpora- 
tion can be indicted. It would be stepping aside altogether 
from their corporate powers. If indictable as a corporation for 
an offense, thus incited by them, the innocent dissenting minor- 
ity become equally amenable to punishment with the guilty 
majority. Such only as take part in the measure, should be 
|)rosecuted as individuals, either as principals, or as aiding and 
Abetting or procuring an offense to be committed, according to 
its character or magnitude. It is a doctrine then, in conformity 
with the demands of justice, and a proper distinction between 
the innocent and the guilty, that when a crime or misdemeanor 

Jane, 1841.] Smallwood u Noutox. 39 

is committed mider color of corporate authority, the indiTidiials 
acting in the business, and not the corporation, should be in- 
dicted: Ang. & Ames on Corp. 396, sec. 9. We think it can 
not be doubted, that the erection of a public nuisance is a mis- 
demeanor. There are cases, where qiuiai corporations are in- 
dictable for the neglect of duties imposed by law. Towns for 
instance, charged with the maintenance of the public highways, 
are by statute indictable, for any failure of duty in this respect. 
The corporation here attempted to be charged, have violated no 
duty imposed upon them by statute. Whatever has been done, 
was by the hand or procurement of individuals. They may be 
indicted and punished and the nuisance abated. We have been 
referred to no precedent where an indictment has been sustained 
against a corporation, upon such a charge; and in our opinion, 
the individuals concerned and not the corporation, must be held 
criminally answerable for what has been done. 
Exceptions sustained. 

Liability of Corporation for Torts: See notes to BiddU t. Proprietont 
6 Am. Dec. So, and OrrY. Bank of CnUed 8taU$,lZ 1± 688. In WKUeman*$ 
Ecer V. WUm. A Siuq. R. R. Co,, 33 Id. 411, it waa held that tretpaw vi ef 
•rmw oonld be maintained a^^ainat a corporation aggregate. 



Jimrtxynasn of an Attornst is Proved Sufficiently by his acting as 
soch for the plaintiff and being recognized as acting in that capacity on 
the records of the court. 

Attorney should Defend against Eepleyin Process to recover goods 
seized on an attachment sued oat by the attorney on a judgment obtained 
by him. 

Plaintiff in Replevin Beoomino Nonsuit, the attorney for the attach- 
ment creditor should move for a judgment for a return of the property 
levied, and for a failure to do so, in consequence of which the claim is lost, 
the attorney is liable for negligence. 

In Action against Attorney fvr Neolioencb in failing to move for a 
judgment for a return of the property when the plaintiff in replevin has 
been nonsuited, the attorney can not show that the plaintiff in replevin 
was the real owner of the property. 

Assumpsit against defendants, attomeys-at-law, for negli- 
gence. In the winter of 1835, Bichardson, the agent of the 
plaintiffs, sent a demand against one Kimball to the defendants 
for collection. Suit was instituted in February, 1835, and per- 
sonal property of Kimball attached by Leavitt, a deputy sheriff. 

40 Smallwood v. Norton. [Maine^ 

This property was repleyied bj one Fiske. Both actions wer» 
entered at the Maj term, the defendants entering appearance 
both for Smallwood and for Leavitt in the replevin suit. In June* 
defendants wrote to plaintiffs informing them of the commence- 
ment of the snit, and saying they wonld secore the plaintiffs'^ 
debt, as Fiske had no title. At the October term, Eimball wa» 
defaulted, judgment rendered against him, and execution issued 
in December following, but returned unsatisfied. In March, 1836, 
alias execution issued, but it did not appear that it was ever 
placed in the officer's hands. The replevin suit was continued 
to the January term, when Fiske was nonsuited. It appeared 
that the judgment of the court was not recorded, as no papers 
had been put on file before the middle of the vacation after ren- 
dition of judgment. No motion had been made by defendants for 
a return of the goods; or that the replevin writ shoidd be placed 
on file; the defendants' names appeared as attorneys for Leavitt,. 
and were brought forward on the subsequent dockets. It ap- 
peared that Leavitt employed Norton to defend the suit. Tha 
defendants offered to prove that the properly attached belonged 
to Fitch, the plaintiff in the replevin suit, but the evidence waa 
rejected. The court ruled in favor of the plaintiff, upon which 
a default was entered, subject to the opinion of the court; if the 
evidence should have been admitted, or if the plaintiff upon the 
facts is not entitied to recover, the judgment to be taken off and 
a nonsuit entered. 

Gooley, for the defendants. 

Hobbs, contra. 

By Court, Weston, C. J. Richardson acted as the agent of 
the plaintiff, and his testimony was admissible as such. The de- 
fendants were engaged as attorneys to prosecute and collect the 
plaintiff's debt. They were under legal obligation to discharge 
this duty with competent skill and fidelity. The object of the 
suit, instituted by them for the plaintiff, was to obtain judgment^ 
and as the fruits of it, satisfaction o£ the execution, which issued. 
They had caused the debtor's property to be attached; and it 
was their duty, by all legal means, to make that attachment 
available. They became professionally 'charged with all legal 
ancillary proceedings, necessary to make the attachment effect- 
ual: Dearborn v. Dearborn, 15 Mass. 316. With regard to the 
averment, that the defendants were employed, and undertook to 
act, as attorneys of the common pleas, it is sufficientiy proved 
by their acting as such for the plaintiff, and being recognized aa 

June, 1841.] Smallwood u Norton. 41 

acting in that capacity, on the records of that court. A process- 
in replevin "was instituted at the suit of David Fiske, to defeat 
the attachment, procured by the defendants, for the benefit of 
the plaintifT. That is necessarily brought against the officer, 
who acts in trust for the attaching creditor, although he haa 
nominally the management of the defense. The plaintiff Tvaa 
the cestui que trusi, and the defendants their attorneys. From 
this relation alone, they woidd have been received to defend tho 
replevin. But one of the defendants was also retained by the 
officer. Such being the connection between these suits, the 
plaintiff having a direct interest to defeat the replevin, the object 
of which was to render his attachment unavailable, the defendants- 
owed a duty to the plaintiff, in defending against the replevin 
process, as well as to the officer. That they so understood it, 
and assumed to act for the interest of the plaintiff in both siuts,. 
is apparent from their letter of June 20, 1835. But independ- 
ent of that letter, it was their duly to take care of his interest. 
And they could not relieve themselves from this responsibUiiy,^ 
by the employment or substitution of other counsel. 

When the plaintiff in replevin became nonsuit, it was their 
duty to see that the writ was put on file, that the record might 
be duly made up. They should also have moved for judgment 
for a return of the properiy replevied. Without such a motion, 
no such judgment can be entered in cases of nonsuit, nor would 
in such case a failure to return be a breach of the replevin bond: 
Badlam v. Tucker ei al, 1 Pick. 284 [11 Am. Dec. 202]; Petty- 
grove V. Hoyi eial.,2 Fairf. 66. If the defendants had fulfilled 
their professional duties to the plaintiff, by taking such measures 
as to render the replevin bond available, by the regular entry of 
judgment upon nonsuit, and for a return, in a suit on the bond, 
it would have been held forfeited, and the officer, in trust for the 
plaintiff, would have been entitled to judgment for the value of 
the property, as well as for the damages. Nor do we think, that 
proof could be received in a suit on the bond that the property 
was in Fiske. Judgment for return should be complied with in 
terms, or the obligors held liable to respond in damages. It 
would be against the legal effect of that judgment, to open the 
question of property in a suit on the bond. The time to have 
tried that question was, while the suit in replevin was pending. 
It would be a very extraordinary derangement of the regular 
courae of legal proceedings to suffer the plaintiff in replevin to 
abandon a process, expressly provided to enable him to vindicate 
hia title to property t^en from the custody of the law, and sub- 

42 Dennison V, Thomaston Mutual iNa Oo. [Maine, 

eequently to try his rights, under the bond, which he is reqnii^ 
to giTe to prosecute his replevin with effect. If such evidence 
would not be aTsilable in defense of the bond, it can not avail 
the defendants, for neglecting the proper legal steps to render 
the bond effectual, for the benefit of the plaintiff. But, aside 
from the question of title, he would have been entitled to the 
twelve per cent, which the officer would at all events have recov- 
ered for his use. 

The liability of the defendants being sustained by the proof, 
we are satisfied, that under the general issue, a cause of action 
is sufficiently set forth in the second count. The default is to 
stand, and the case referred, for the assessment of damages, as 
has been agreed by the parties. 


diaoosaion of this subject see note to fUch v. ScoU^ 34 Anu Deo. 80. 

Denkison v. Thomaston Mutuaii Ins. Go. 

[20 MAim, 135.] 

Whebb Poucy Kequirsd Insubed to State Distance oe Buildino ic 
sored from the neighboring buildings, an omiaaion to mention buildings 
on another street, and from which there was no reasonable apprehension 
of danger, is not such a suppression of the truth as inyalidatea the polioy, 
though the fire is communicated from them. 


the insured, in answer to a question as to the locality of neighboring 
buildings, described certain sheds in conformity to the truth, but added 
that they "would not endanger the buildings if they should bum," this 
addition is but matter of opinion, and would not amount to a misrepre- 
sentation, if honestly made. 

Action upon a policy of insurance. The policy contained a 
provision to the effect that the insured would not be entitled to 
any indemnification if any circumstance material to the risk be 
suppressed. It appears that two wooden buildings stood on the 
street back of the insured property. The fire arose in these, 
spread to some wooden sheds (mentioned in the policy), and 
thence to the insured buildings. The wooden buildings were 
not mentioned in the policy. The remaining facts necessary to 
a comprehension of the case appear from the opinion. Verdict 
for plaintiff subject to the opinion of the court; if entitled to 
recover, judgment to be entered on the verdict; and if entitled 
to interest from an earlier date than sixty days after affidavit 
furnished and notice annexed, verdict to be amended accordingly. 

June, 1841.] Dekkison v, Thohastox- Mutual Ins. Co. 43 

Preble, for the defendants. 

Rogers and CuUing, for the plaintiff. 

By Court, Whitman, C. J. A yerdict was taken for the 
plaintiff subject to the opinion of the court, upon a report of 
the judge, before whom the trial was had, of the evidence, and 
ndings by him made in the progress of the trial. And it is 
agreed, that such judgment shall be entered, either upon the 
irerdict or upon nonsuit, as the court m^y deem reasonable. 

The action is upon a policy of insurance against fire, under- 
written by the defendants, on the dwelling-house of the plaintiff, 
situated in Bangor, which was consumed by fire. The defend- 
ants for their defense, rely upon what they consider to have 
been a misrepresentation made at the time the policy was 
effected. The misrepresentation alleged is contained in the 
answer to a written interrogatoiy, propounded to the plaintiff, 
as to the distance of other buildings from the premises insured. 
The answer was in these words: "East side of the block are 
small one-story woodsheds, and would not endanger the build- 
ings if they should bum." In evidence it appeared, that small 
sheds projected out from near the back part of the brick block 
of buildings (one of which was the house in question), tweniy- 
foiir feet, being twelve feet in width, and eight feet stud; and 
leaving a passage way in the rear of them, of fourteen feet wide, 
adjoining some two-stoiy wooden buildings, standing on an- 
other street, forfy-nine feet from the plaintiffs house, and in 
which the fire which consumed the plaintiffs house, originated. 
The first question, which arises, is, was this a misrepresenta- 
iiou, or was there a suppression of the truth tantamount there- 
to, and material to the risk? It does not seem to be necessaxy, 
in order to avail the defendants in their defense, that the mis- 
representation or suppression of the truth should have been 
willful. If it were but an inadvertent omission, yet if it were 
material to the risk, and such as the plaintiff should have 
known to be so, it would render the policy void. 

In the case at bar it has now been rendered undeniable, that 
the burning of the two-story buildings, on another street, en- 
dangered the plaintiff's house; and to the interrogatoiy pro- 
pounded it now. would seem, that the existence of those buildings 
ought with propriety, have been stated. But this does not 
prove, that, before the occurrence of the fire, it would have been 
deemed material to name them, as being near enough to put tl\e 
plaintiff's house in jeopardy. It is not an unfrequent occur« 

44 Dennison V, Thomaston Mutual Ins. Co. [Maine» 

rence, after a disaster has happened, that we can clearly discern 
that the cause, which may have produced it, would be likely to 
have such an effect, while, if no such disaster had occurred, we 
might haye been yeiy far from expecting it. In this case it ia 
essential to determine whether the plaintiff was bound to hKw% 
known that a fire originating in the two-story wooden bmldings, 
would have endangered the burning of his house. If as a man 
of ordinary capacity, he ought to hare had such an apprehension, 
then he ought to have named those buildings in reply to the in- 
terrogatoiy propounded; for, what a man ought to have known,, 
he mtist be presumed to have known. This knowledge, in a 
case like the present, must haye been something more than, that 
, Jby possibility a fire so originating might have endangered his^ 
house. This kind of knowledge might exist in regard to a firfr 
originating in almost any part of a city like Bangor; for a fire 
originating in an extreme part of it, if the wind were high and 
favorable for the purpose, might endanget all the buildings, 
however remote, standing nearly contiguous one to another, to 
the leeward of it. Any danger like this could not have been in 
contemplation, when the interrogatory was propounded. Such 
buildings only as were so nearly contiguous as to have been, in 
case a fire should originate therein, productive of imminent haz- 
ard to the safety of the plaintiff's dwelling, could have been in 
view by the defendants. And the question is, were the two-story 
wooden buildings of that description ? 

In reference to this question, it may not be unimporiant to 
consider, that the defendants, at the time when this policy was 
effected, had an agent residing in Bangor, whose business it was 
to attend, in their behalf, to the applications for insurance from 
that quarter. It may be believed, that the selection of this in- 
dividual was the result of knowledge, with regard to his intel- 
ligence and capacity for such purpose. It was not, however^ 
his business, perhaps, to prepare representations to be made by 
applicants for insurance. But it did so happen, that he assisted 
the plaintiff in preparing the answers to the standing interroga- 
tories, one of which is the interrogatory before named, intended 
to produce a representation ux>on which to found the estimates 
of the propriety of assuming the risks proposed. He, it seems, 
examined the premises, looked at the woodsheds, and the two- 
etoiy wooden buildings beyond them. To him it did not seem 
to have occurred that the vicinity of those buildings was jsucli 
as to render it necessary that the two-story wooden buildings 
should be named in answer to the interrogatory; for he, at the 

June, 1841.] Deknison v. Thokaston Mutual Ins. Co. 45 

request of the plaintiff, penned tbe reply thereto as he thought 
proper. It does not appear that any witness has testified, that, 
anterior to the disaster, he should have anticipated such an 
event as within the range of probability. What other individu- 
Ills of intelligenoe did not foresee to be likely to occur, could 
not reasonably be expected of the plaintiff. And what he could 
not be expected to know, he can not be considered as culpable , 
for not knowing. And what he could not be expected to ap- 
prehend, he could not be bound to communicate; and, in not 
eonununicating any such fact, he could not be considered as 
guilty of concealing it, even inadvertently, and much lees will- 

As to the wooden sheds, they were named; and the description 
given of them is precisely in conformity to the truth. They 
were named, however, in connection with an opinion, that if 
they took fire, they would not endanger the house. There is, 
then, no misrepresentation with regard to their existence. The 
misrepresentation complained of, in reference to them, is 
merely in matter of opinion. But opinions, if honestly enter- 
tained, and honestly communicated, are not misrepresentations, 
• however erroneous they may prove to be. That this opinion 
was uttered bona Jide, and in perfect singleness of heart and 
purpose, may well be believed, and may fairly be deducible 
from the fact, that it was expressed in concurrence with the un- 
questionable belief at the time, of its correctness, by the confi- 
dential friend of the defendants. An opinion so uttered, if not 
in good faith, might well be complained of, as it might tend to 
throw the defendants off their guard. In such case, it might 
tend to show a fraudulent design; and in connection with evi- 
dence of misrepresentation of facts, even short of what other- 
wise might be necessary to vacate a contract, would be likely to 
have that effect. 

But it is by no means dear, if the fire had not originated else- 
where than in the sheds, that it would have been attended with 
essential danger to the main building. The neighbors and fire- 
men of the city, might be expected to be able to extinguish a 
fire so originating. Such buildings ore easily pulled to pieces; 
and an engine brought to bear upon them would do great ex- 
ecution. It may therefore, even now, be veiy questionable, 
whether the opinion complained of may not be adopted as well 
founded to a very considerable extent at least. As to the tes- 
timony of the witnesses, touching the condition of the fire de- 
partment and its exertions, and whatever relates thereto, we Bae 

46 OooDNOW V. Howe. [Mam«^ 

no ground from thenoe arising, to question the correctn^ 
of the finding of the jury. The most that can be said of thai 
part of the evidence is, that it is irrelevant, and not of a teoi- 
dency to influence a jury one way or the other. 

We are of opinion, therefore, that judgment must be entered 
upon the verdict, with interest as agreed. 

Dbsgbiftion of Pbopkrtt IK Policy op Insuhanos, MATsaiALmr op*. See 
Fowler v. jEtfia Ins, Co., 16 Am. Dec. 460, where this sabjeot is fully dia- 
ouased; also Jefferson Ins, Co, v. Cotheal, 22 Id. 567; JFhrmen^ Ins, Co. ▼. 
Snyder, 30 Id. 118; ^tna Fire Lis, Co. ▼. Taylor^ Id. 90; Strong v. Mt 
facturere Ins. Co,, 20 Id. 607. 


[20 Mjkim. 164.] 

Cbsditor's Disoountino I>baft Sent Him bt Debtor and giving the latter 
credit before the draft is honored, will not conclude him in the absenoa 
of negligence or want of fidelity; and having taken up the draft after tta 
dishonor, he is entitled to recover that amount from the debtor. 

DEFEin>Airr being indebted to plaintiff, remitted to him a draft 
drawn by L. D. Shaw, payable to N. D. Shaw and indorsed bj 
him, requesting plaintiff to credit him for it when paid. Plaint- 
iff discounted ttie draft and credited defendant with the proceeds. 
It afterwards was protested by th6 bank for non-acceptance; 
and notices of this were given plaintiff^ who forwarded them to 
defendant. At maturity the draft was protested for non-pay- 
ment and was taken up by plaintiff, who inclosed it to Messrs. 
Hobbs, of Eastport, Uie defendant living in New Brunswick, 
requesting them to forward it to defendant; that Messrs. Hobbs 
returned the draft saying they had attempted to make a settle- 
ment with the drawer, but unavailingly, as he would not pay the 
damages; they also returned to plaintiff a new draft between the 
same parties for the same amount and costs of protest, but not 
for damages, telling plaintiff to retain either at his election and 
return the other. Plaintiff retained the old draft, and sent back 
the other to Messrs. Hobbs, and inclosed the protested draft to 
some one at Eastport. It did not appear that defendant erer 
received it. The evidence showed that defendant, on hearing of 
the plaintiff's taking the new draft, wrote to him approving of 
his course. Default to be entered for such sum as plaintiff la 
entitled to recover. 

HobbSy for the defendant. 

D. T. Granger, contra. 

July, 1841.] OooDNOW u Howe. 47 

Bj Court, Westok, C. J. The draft in controyersj was re- 
mitted by the defendant to the plaintiff, "with a request, that 
when paid, it should be passed to his credit, he being indebted 
io the plaintiff. This imposed upon the latter reasonable fidel- 
ity, in dischaige of his trust. He was liable to no other risk or 
hazard, in relation to the business. He put it in train for col- 
lection, by causing it to be discounted at the Union bank, at 
Boston. This did not increase the hazard to the defendant or 
to the parties to the draft. It enlisted the -vigilance of the 
bank in the collection, they having great facilities, through their 
officers, and by their extensive correspondence. The defendant, 
when advised of what was done, made no objection; but in his 
letter of March 18, 1837, acknowledging the receipt of tl^e no- 
tices, requested that the draft might be returned to him, that he 
might call on thq indorser. If he had disapproved of the 
plaintiff's course, or claimed to hold him responsible for the 
draft, or any part of the damages or expense, he was required, 
upon the principles of fair dealing between merchants, so to 
have apprised him. The fact, that the plaintiff credited the de- 
fendant with the avails, before the draft had been honored, 
ought not to conclude him, unless chargeable with negligence, 
or a want of fidelity. And this is not imputable to him, from any 
evidence presented in the case. The banks and the notary were 
the usual and approved agents, proper to be employed in the 
discharge of the duty confided to him. Failing to realize the 
expectations of the defendant, he advises him of the result and 
forwards to him notices for the indorser and drawer, which were 
received and transmitted. It thereupon became the business of 
the defendant to resort to the parties for payment. Isaac 
Hobbs, the deponent, remitted a new draft to the plaintiff, 
which he was to retain or not, at his election; and of this the 
defendant approved. The plaintiff promptly returned the new 
draft. Having done his duiy, and fully advised the defendant, 
if Neal D. Shaw, the indorser, was ready and willing to pay the 
amount of the draft, without the damages, it was for the defend- 
ant to decide, whether that proposition would be acceptable. 
We are not aware, that the plaintiff was bound to adjust the 
matter upon those terms. 

Upon the whole, if any loss has been sustained, it does not 
appear to us, that it shonld fall upon the plaintiff. He was act- 
ixig for the defendant, and faithfully discharged his duty. The 
defendant, as is fairly to be implied from his correspondence, 
was satisfied with what he had done. The plaintiff is justly e&- 

48 DUBHAM V. Alden. [Maine, 

tilled then to charge back the amount of the draft, and to add 
thereto the damages and exx)ense8, bj him actually paid; and 
judgment ia to be made up accordingly. 

DsBT, HOW VAR ExTiiroaiSHCD BY GiYixo KoTB OB Ordkb. — ^Where a 
4iot6 or order is given by debtor for a pre-existing debt, it is presamed to be 
in payment of it: Maneely v. MeOee^ 4 Ain. Dec lOo; Thaditr ▼. Dinsmort^ 
Id. 61; WIMeck v. Van Ness, G Id. 383; Vomer v. Noblebonmgh, 11 Id. 48; 
Arnold v. Camp, 7 Id. 328. And an acceptance of a note or order in satis- 
-faction of a debt dlMhargee it: Apihorp r. Skepard, 1 Id. 6; Hutekins ▼. 
OkoU, 24 Id. 634; Harrison v. Hicks. 27 Id. 638; Olmn v. SmUh, 20 Id. 
452; HwMS t. Smi/ik, 33 Id. 650. But the note or bill most be expressly re- 
•ceived as payment: Barelli ▼. Brown, 10 Id. 683; Murray v. Oouvememr^ 1 
Id. 177; Patapsco Ins. Co, v. Smith, 14 Id. 268; Jofinson v. Weed, 6 Id. 279; 
Mvldon T. WMiloch, 13 Id. 533; Tobey ▼. Border, 4 Id. 326; oti&erwise it will 
tiot operate to extingoish the debt: PaUdkcdl ▼. Aptkorp, 1 Id. 3 (bat see 
Arnold v. Camp, 7 Id. 328); Paio^^seo Ins. Co. v. Sniuh, 14 Id. 268; Meed ▼. 
Van Ostrand, 19 Id. 529; Muldan v. WhiOock, 13 Id. 533; Clopper v. Unkmy 
16 Id. 294; Hart t. BoUer, 16 H. 536; Costdo v. Caoe, 27 Id. 404. 


120 Maznx, 228.] 

CoKTETAVCB BY MoRTOAOOR AKD MORTGAGEE. — ^Wbere the mortgagee Joins 
with the mortgagor in a deed conveying the mortgaged premises, togetiier 
with a smaller parcel owned by the mortgagee in seyeralty, the deed oqd- 
taining a covenant that the premises are free from incombimaees, he 
will be estopped to assert his mortgage, the deed making no exoeption of 
it, and he not giving the purchaser notice that he claimed any title. 

Wbtt of entry to obtain judgment as on a mortgage. The 
following facts were agreed upon: Durham being the owner of 
a tract of land, conveyed seven eighths of it to one Morrill, and 
took a mortgage from Morrill to secure the unpaid purchase 
money. Afterwards, Morrill and Durham united in a deed con- 
veying said tract to one Merrill, Morrill conveying seven eighths 
and Durham one eighth. The deed contained the following, 
among other covenants: ''And we do covenant with the said 
Merrill, his heirs and assigns, that we are lawfully seised in fee 
of the afor^granted premises; that they are free of incum- 
brances." The deed in no way mentioned Durham's mortgage. 
Some months after, Durham, by consent of Morrill, entered 
upon the premises, for condition broken and to foreclose Mor- 
rill's right to redeem. Merrill, after the entry, deeded the land 
to the tenant. If, on the facts, the action can be maintained, 
judgment to be for demandant; if not, for the tenants, with 
costs; provided, however, if the court should think the demand- 

Jane, 1841.] Baxteb v. Bradbubt. 49 

ant's coTenanfa should cover the said seven eighths, the judg- 
ment for tenant to be without costs. 

KeUey^ for the demandant. 

Grofky^ contra. 

By Court, Shkpley, J. It appears from the agreed statement 
that the demandimt as mortgagee in fee held the title to seven 
eighths, and had an indefeasible title to the other eighth of a 
tract of land, of which the demanded premises were a part. 
And that he united with his mortgagor in a deed conveying the 
premises to Daniel Merrill, from whom the tenants derived 
their title. By this deed the demandant conveyed one eighth 
and his mortgagor seven eighths with warranfy. Admitting the 
covenants to be several, and not joint, the effect of this trans- 
action is, that the demandant knowingly becomes a party to the 
most solemn assurance made by his mortgagor under his hand 
and seal, that the seven eighths " are free of all incumbrances 
and that '' he has good right to sell and convey the same. 
And he does this, while he held a mortgage covering the prem- 
ises, on which was then due more than double the amount of 
the purchase money, without causing any exception of his own 
title to be introduced; and without giving any information to 
the purchaser that he claimed any title, or that the grantor's 
title was defective. Under such circumstances he is as much 
bound by the declarations of his mortgagor as if they were his 
own. It would be a fraud upon the purchaser to permit him 
now to disturb that title: WendeU v. Van Bensaelaer, 1 Johns. 
Ch. 344; Starrs v. Barker, 6 Id. 166 [10 Am. Dec. 316]; 1 
Story's Eq. 376; Hatch v. KimbaUy 16 Me. 146. It would be no 
legal excuse, if done through ignorance or inattention, for it is 
more just that he should be the loser under such circumstances 
than tiiat the innoq^nt and faultless purchaser should. 

Judgment for the tenants. 

Baxteb v. Bbadbuby. 

[20 Mazhb, 360.] 

Ix AonoK voR BasACH of Ck)V£NANT OF Seisin the defendant may offer 
in evidence deeds to himself subsequent to his deed to plaintiff to de- 
feat the action, as these deeds inure to the plaintiff by virtue of the gen* 
enl oovenant of warranty in his deed. 

Whbui Pabtt Aoquibxs Tms attxr Cokyetanob with GsinaAL War- 
Am. Dbo. Vol. XXZVn— 4 

60 Baxter v. Bradbury. [Maine^ 

BASTTf the title thtu acquired inures to the benefit of his grantee, and 

the grantee then has no right to elect whether or not to reject the title. 
Damaobs abx Nominal, though Warbahtob had xot thb Title when he 

made his conveyance, if before recoTety against him he has obtained the 

Estate in Feb is Pbesuked to Descend on Death of Ancestor in par- 

snance of the laws of inheritance, unless the descent is shown to have 

been interrupted by a devise. 

AonoK for breach of covenant of seisin in a deed of -warranly, 
dated August 3, 1836. To prove breach plaintiff produced a 
deed of warranty from one Peck to Joy, dated July 27, 1799, of 
the premises in question. The defendant offered in evidence a 
deed of quitclaim from Amos Whitney to himself of one of the lots 
in question, and a warranty deed from Whitten of another lot. 
This evidence was rejected. A contract of Joy dated June, 1835, 
to convey other portions of the premises to the defendant, and a 
deed from Joy's heirs dated October 20, 1837, after the commence- 
ment of this suit, were also offered and rejected. By consent a 
default was entered and damages assessed at the amount of the 
consideration money and interest, subject to the opinion of the 
whole court; if the evidence was improperly rejected the da 
fault to be taken off and the case to stand for trial. 

Appleton, for the defendant. 

Bogera and Cooley, contra. 

By Oourt, Weston, O.J. It is assumed in argument, that Amos 
VHiitney and Thomas Whitten were seised of the lands described 
in their respective deeds to the defendant, dated August 24, 
1835. The lands constitute a part of that, which is the subject- 
matter of this suit. These deeds, with the evidence of their 
seisin, were rejected as inadmissible, by the presiding judge at 
the trial. If this evidence could legally have any effect upon the 
right of the plaintiff to recover, or upon the measure of damages, 
it ought not to have been rejected. The rul^, which have been 
established to determine the measure of damages, upon the 
breach of covenants in deeds for the conveyance of real estate, 
have been framed with a view to give the party entitled a fair in- 
demniiy for damage he has sustained. Thus if the covenant of 
seisin is broken, as thereby the titie wholly fails, the law restores 
to the purchaser, the consideration paid, which is the agreed 
value of the land, with interest. But in this, as well as in other 
covenants, usual in the conveyance of real estate, if there exist 
facts and circumstances, which would render the application of 
the rule inequitable, they are to be taken into consideration by a 

June, 1841.] Baxteb v. Bbadbubt. 51 

juiy : Leland y. Stone, 10 Mass. 459. The covenant was intended 
to Becnre to the plaintiff a legal seisin in the land conveyed. If 
it is broken and he fails of that seisin, he has a right to reclaim 
the purchase monej. But if in virtue of another covenant in the 
same deed^ which was also taken to assure to him the subject- 
matter of the conveyance, he has obtained that seisin, it would 
be altogether inequitable that he should have the seisin, and be 
allowed besides to recover back the consideration paid for it. 
The rule as to the measure of damages for the breach of this 
covenant, which is just in its general application, could never be 
intended to apply to such a case. In Whiting v. Davey,^ 15 
Pick. 428, it is strongly intimated by the court, that this rule 
may have exceptions, as it undoubtedly has. 

If Whitney and Whitten were seised, immediately upon the exe- 
cution of their deeds, which were executed a few days after that, 
upon which the plaintiff declares, their seisin at once inured and 
passed to him, in virtue of the covenant of general warranty in 
his deed: Somes v. Skinner, 3 Pick. 52. It has been insisted by 
the counsel for the plaintiff that this effect depends upon the elec- 
tion of the grantee, and that the plaintiff here would reject the 
tiUe arising by estoppel. But we are aware of no legal princi- 
ple which can sustain this position. In the case last cited the 
court say, ''that the general principle to be deduced from all 
the authorities is, that an instrument, which legally creates an 
estoppel to a party undertaking to convey real estate, he having 
nothing in the estate at the time of the conveyance, but acquir- 
ing a title afterwards by descent of purchase, does in fact pass 
an interest and a title from the moment such estate comes to 
the grantor.'' The plaintiff, by taking a general covenant of 
warraniy, not only assented to, but secured and made available 
to himself all the legal consequences resulting from that cove- 
nant. Having therefore, under his deed, before the commence- 
ment of the action, acquired the seisin, which it was the object 
of both covenants to secure, he could be entitled only to nom- 
inal damages, and in our judgment the evidence rejected was 
l^fally admissible. The estoppel, being part of the title, may 
he given in evidence, without being pleaded: Adams v. Barnes, 
17 Mass. 865. Whether the seisin of Whitney and Whitten was 
defeasible or indefeasible, is not a question which can arise un- 
der this covenant, which operates only upon the actual seisin, 
and does not assure the paramount titie. The same course of 
'Oftsoning, and the same authorities, which justified the admis* 

1. WhiUng t. Dtmeg. 

62 BOBEBTS t;. Mabston. [Maiiifl^ 

Bion of the testimoiij rejected, required that the eTidence of title 
derived bj estoppel from Joy's heirs, should have been reoeiyed. 
It has been objected, that these lands may have been devised 
by Joy, which may have prevented a descent to the heirs. But 
an esfastte in fee, upon the decease of the ancestor, is presumed 
to descend, in pursuance of the laws of inheritance, unless the 
descent is shown to have been intercepted by a devise. By the 
conveyance from Joy's heirs to the defendant, the plaintiff ac- 
quired not only the seisin, but an indefeasible title. As, how* 
ever, that was executed, since the conunencement of the action, 
the plaintiff is entitled to nominal damages, and to nothing 
more, if he has not been disturbed in his possession; and judg* 
ment may be rendered for him, therefore, on the default, which 
has been entered. But if the actual seisin of Whitney and 
Whitten is intended to be contested, or the plaintiff would show 
that he had been dispossessed, before his title by estoppel at- 
tached, the de&ult must be taken off, and the action stand for 

SuBSBQUBNTLT ACQUIRED TiTLB, EFFECT OF. — Where one seUs and oon- 
veya land to which he haa no title, but afterwards aoqnirea title, his hein 
will be estopped to deny the title in the grantee: Mc WHHamB ▼. NUfy, 7 
Am. Dec. C54. And a conveyance by an heir iipparent estopa him from ra- 
oovering the property when it subsequently descends to him: McPhersan v. 
OuTiHf, 14 Id. 642. Though in Alkn v. Say%Dard, 17 Id. 221, it was decided 
that covenants of lawful seisin and good right to convey did not estop the 
grantor from setting up an after-acquired title against the grantee. In MoT' 
m v. PMps, 4 Id. 323, the court held that a defendant could not give in 
evidence a title by him subsequent to bringing the action for breach of cov- 
enant of seisin; that the rights of the parties must be determined as they 
were at the time the action was begun. 

RoBEBTS V. Mabston. 

[20 Haime, 275.] 

fincoYAL OF Inoumbbanoes not a Condition Pbecedsmt, when. — ^Whem 
defendant agreed to remove certain incumbrances from premises conveyed 
to plaintiff by a certain day, in consideration thereof to be allowed a 
oertain sum on a debt due plaintiff, the removal of the incnmbranoes by 
that day is not a condition precedent^ and defendant not having removed 
the incumbrances till the day had passed, he is still entitled to set off 
the sum stipulated in an action by the plaintiff on the original indebted- 
ness, the plaintiff not having reconveyed the premises to him. 

Where Plaintiff has Suffered Damaqes by the Delay, in such a oaaoi 
he has a right to have them deducted from the amoont he agreed to allow 
for the premises. 

June, 1841.] Boberts v. Mabston. 53 

Abhumhut on several notes of hand amounting to five thousand 
five hundred dollars. -The defendant introduced a receipt from 
the plaintiff by which plaintiff agreed to allow defendant four 
thousand dollars on the indebtedness, in consideration of a war- 
ranty deed to certain tracts of land, provided defendant removed 
ineumbrances on the land bj a certain daj. Defendant did not 
remove the incumbrances till after the commencement of this 
action. Plaintiff contended that as the incumbrances were not 
removed by the day stipulated, defendant had no right of set- 
off. But tiie court ruled that as the plaintiff had not offered 
to reconvey the land to the defendant, the jury should set ofif 
such sum as the defendant was entitled to, Tnakiug such deduo- 
tion from the four thousand dollars as might be proper from a 
change in the value of the property. The jury disagreed, and 
the parties submitted to the court whether the defendant should 
be idlowed anything or not on account of the receipt. 

Bogers, for the plaintiff. 

McCriUis, contra. 

By Ck>urt, Wbston, 0. J. The plaintiff has received of the 
defendant a deed of warranty of certain real estate, for which it 
appears, by his receipt of December 20, 1836, he was to allow 
him four thousand dollars when he shall have cleared the in- 
cumbrances on the property. The defendant has removed the 
incumbrances; and his right to be allowed the stipulated sum 
would be perfect, but for a clause added to the receipt which is 
in these words: ''which incumbrances are to be removed by 
him, on or before the first day of July next." The incumbrances 
were not removed on that day, nor until more than a year after- 
wards. And the argument is, on the part of the plidntiff, tbat 
by reason of the &ilure of the defendant to cause this to be 
done at the time appointed, he has now no claim to any allow- 
ance whatever, by way of offset. This construction would give 
to the clause, under consideration, the force of a condition 
precedent. No direct language is used, expressive of such a 
condition, nor is it deducible by necessary implication. The 
incumbrance was less than the stipulated price; and it would 
be unreasonable to subject the defendant to the hazard of a f or- 
feitore of the estate, if he did not remove it at the time, unless 
such is the plain meaning of the terms used. Although the 
plaintiff was secured by the covenant in the deed, yet without 
the latter clause in the receipt, no definite time was fixed, within 
which the business was to be closed. The defendant, by accept- 

54 HiGOiKS V. Brown. [Maine, 

ing the receipt, must be deemed to have assented to the stipn- 
lation. It is equivalent to an affirmative agreement on his part 
to that effect. It does not go to the whole consideration, and 
for that reason should not be regarded as a condition precedent: 
Duke of St. Albans v. Shore, Doug. 690, note; Boone v. Eyre, 
1 H. £1. 273, note; Bennet v. Exeouiors qfPixley, 7 Johns. 249. 
So far as the plaintiff has suffered damage from the delin- 
quency of the defendant, he has a right to have it deducted 
from iiie price he agreed to give. He should be placed, bj com- 
pensation, in the same condition, as if the defendant had ful- 
filled the stipulation. The jury were not able to agree before; 
and the matter is not so easily liquidated in a trial at law. 
Unless however the parties can arrange it between themselves, 
or by a submission to a reference, the action must stand for 


[30 Mazmb* 832.] 

Wbkkb Pabtt Sells Pbopebtt Claimed by Akotheb and the prooeeda 
are placed in the hands of a third person to abide a decision of their re- 
spective rights, and such party persuades the third person to pay him 
the sum he has received without the privity or consent of the other, he 
waives the benefit of any arrangement made with the third person, and 
becomes liable at once to the other party if he was the owner of the 
property, though no decision has been rendered nor demand made of the 

Assumpsit for money 'had and received. Defendant and 
Bridges made an arrangement by which Bridges cut and 
hauled to the wharf from defendant's land a quantity of wood. 
Defendant attempted to show that Bridges was to be paid a sum 
equal to one fourth of the value of the wood for his services, 
while plaintiff introduced evidence showing that one fourth of 
the wood hauled belonged to Bridges. Bridges sold his one 
fourth to the plaintiff. Defendant sold all the wood to the cap- 
tain of a vessel; plaintiff forbid the captain removing his fourth; 
but the wood was all taken, and the captain paid one fourth of 
the proceeds into the hands of one Lake. Defendant persuaded 
Lake to pay to him this amount, he taking from defendant a 
bond of indemnity. Plaintiff then brought this suit. Defend- 
ant held that plaintiff had agreed that the money should remain 
with Lake to abide a decision as to the rights betweei; himself 
and Bridges; that as no decision had been made, no one was 
liable to an action, unless Lake; that defendant was not liable 

July, 1841.] HiQGiNS V. Brown. 6*5 

to an action without a demand. Plaintiff denied leaving the 
money in Lake's hands to abide a decision of his rights; con- 
tended that the agreement was between defendant and the cap- 
tain solely, at the captain's request, to relieve the captain of the 
danger of 'paying twice; and that even had he assented to such 
agreement, the subsequent conduct of defendant in taking the 
money -was such as to render him liable without anj demand. 
The judge instructed the jury that if the wood was all the de- 
fendant's, and that Bridges was to receive one fourth of the pro- 
ceeds, thej should find for defendant; but that if one fourth of 
the wood was Bridges', thej should find for plaintiff. That if 
the plaintiff was no party to the agreement with Lake, the 
plaintiff's right to recover would not be affected by the deposit; 
that even if he was a pariy to the- agreement, and they were 
satisfied that defendant had voluntarily, and without the plaint- 
iff's assent, procured the payment of the money to himself, 
plaintiff could maintain the action, though no decision had 
been made, and though no demand had been made upon de- 
fendant. Verdict for plaintiff; the defendant appealed. 

Hathaway, for the defendant. 

Pond, contra. 

By Court, Wkston, 0. J. The wood in controversy, the jury 
have found, was the property of Daniel Bridges, of whom the 
plaintiff purchased it. The defendant was fully apprised of this 
fact, having himself sold the wood to Bridges. It appears that 
he sold it a second time to a third person, and that he has actu- 
ally received the proceeds. It is very clear, that he holds this 
money to the use of the plaintiff, to whom the wood belonged, 
and is liable to his action for it, unless the plaintiff's remedy 
has been suspended by the arrangement made with Lake, who 
received the money as a stakeholder. If this was done by the 
consent of the plaintiff, which is controverted, when the defend- 
ant pursuaded Lake to pay to him the sum he had received with- 
out the privity or consent of the plaintiff, in violation of that 
arrangement, he must be considered as having waived the benefit 
of it, and he became at once answerable to the plaintiff, if he 
was in fact the owner of the wood. 

Exceptions overruled. 

Sheflet, J., absent. . 

Assumpsit fob Mokby Had and BsoErvKD, when Lies: See Meatier v. 
Amery, 1 Am. Dec. 316; Bearddey v. RoU^ 6 Id. 386; Kennedy ▼. BaUkmort 

66 Pabkeb v. Cutleb Mtt.t.dam Co. [Mainfl^ 

Jut. Okt Id. 409; Qoddard ▼. JMoto^ Id. 663; Dean v. Mason, 10 Id. 162; 
Andftymv. Bagg», 12 Id. 47; AindUy. WHmm, 17 Id. 532; PkHipwnr. BaU$, 
82 Id. 444; O'FalUm v. Boiemenu, 26 Id. 678; DicBna ▼. Jones, 27 Id. 488; 
Lkne Rock Bank v. PUmpUm, 28 Id. 286; McCfrea v. Pwmmi, 80 Id. 103; 
Bsrgeamt t. Stryker, 32 Id. 404. 

Pabeeb V. GrxLEB MnjiDAM Go. 


WuMBM Act Authobizes Corporatiok to Ebbot Dam at the hfltd ol » 
harbor, the corporatioo may erect a dam there though it is below the 
higheet point to which the tide usually flowed. 

f*«OYXSiON IN Act that Cobpobatiov must Build "on thsib ow9 
Land " does not limit nor designate the place of boilding; its intent is U> 
preTent any inference that the legislature intended to authorize the oor- 
poration to take the land of others for that purpose. 

Hboulation ov Navigablb Watxbs withut THi Statx is Tested in the sot« 
ereign power, to be exercised by laws duly enacted. 

Wkebx Dam is Ebxotbd acboss Naviqablb Watebs by a oorporation un- 
der authority of an act of the legislature, the corporation is not liable to 
a riparian owner below for damages occasioned by altering the flux sad 
reflux of the tide. 

Colonial Obdinanck of 1641 Extending Right ov Ripabian Pbopbh- 
tob in the soil from high to low- water mark, where it did not exceed one 
hundred rods, did not grant away any of the public right of fishery. 

Oasb for injniy to plaintiff's water rights hj erection of a dam 
by the defendant. Plea, the general issue. Plaintiff proved 
tbat defendant erected a dam across the channel at the head of 
Little Eiver harbor, where the tide ebbed and flowed; that 
thereby the water was raised higher upon the plaintiff's beach, 
and though no part of his land was oveiflowed, his right of navi- 
gation and the right of fishermen to dig for clams on his flats were- 
interfered with. The defendants claimed they had the right to 
erect the dam in question by authority of an act of the legislature^ 
entitled ''An act to incorporate the Cutler milldam company." 
The judge instructed the jury that if they found plaintiff had 
sustained damage by the erection of the dam, they should award 
him such damages less the benefit he had received by reason of 
the erection. Jury found for plaintiff. The verdict is to stand, 
be amended, or set aside, according to the opinion of the court 

Thacher, for the defendant. 

J. Oranger, for the plaintiff. 

By Court, Seeplet, J. This corporation was created by the^ 
act approved March 16, 1836: Spec. Laws, c. 123; and was ** em* 

July, 1841.] Pabxer v. Cutler Milldam Co. 67 

powered to erect, maintain, repair, and rebuild, a mill-dam on 
their own land across the head of Little Biver harbor ic the town 
of Cutler, with flood-gates thereto at least fifteen feet wide so as 
to admit the passage of gondolas and boats at high water." The 
eoansel for the plaintiff contends, that the act did not authorize 
the corporation to build the dam below the highest point to 
which the tide usually flowed. The gates were to be constructed 
for the purpose of admitting gondolas and boats to pass through 
the dam at high water. The corporation is authorized to ** use 
the water retained by said dam," which is to be built across, not 
above, the head of the harbor. This language exhibits an inten- 
tion to permit the dam to be built in such a manner as to allow 
the corporation to retain and use the tide water. And the fact, 
timt there is no natural fall in the riyer near that place, would 
tend to remoVe all doubts respecting the design of the act. It 
is said, that the place of building was limited and nearly desig- 
nated by that part of the act, which requires it to be built on 
their own land. The first section authorizes the corporation to 
take and hold real estate, but it would own no land .until a pur- 
chase had been made. It is the body corporate, not the cor- 
porators, that is authorized to build " on their own land." The 
proyision must therefore haye been inserted for some other pur- 
pose than to designate the place of building. It probably was 
to preyent any inference, that the legislature intended to au- 
thorize the corporation to take the land of others for that pur- 
pose. The corporation is proved to have been in possession of 
the dam- and mills, and of the lands on which they were erected, 
and that is sufiicient evidence of title for this defense. 

The regulation of the navigable waters within the state is 
vested in the sovereign power, to be exercised by laws duly en- 
acted. The navigation may be impeded, if in the judgment of 
that power the public good requires it. And if the more ap- 
parent object be the profit of a grantee, it is its right and duiy 
to determine whether the public interest be so connected with 
it as to authorize the grant. To refuse it this right, would be to 
prevent the union of public and private interests for the accom- 
plishment of any object. The jury have found that the dam was 
erected across the head of Little Biver harbor; the corporation is 
not therefore liable for any injury which the plaintiff may have 
suffered by obstructions to the navigation, by altering the flux 
and reflux of th« tide. This will embrace the flowing of the 
beach complained of as an injury to the plaintiff in repairing 
vessels; the alleged injury to his mill-site by retaining the tide 

58 Pareeb v. Cutler Milldam Co. [Maine 

water; and the increased difficulty in navigating the river occa- 
Bioned by the flood gates. 

In rivers where the tide ebbs and flows, as well as in the sea, 
the right of taking fish is common to all the citizens: Warren v. 
Mat?iew8, 1 Salk. 357; Ward v. CresweU, Willes, 265; Carter v. 
Murcot, 4 Burr. 2162. And in BagoU v. Orr, 2 Bos. & Pul. 472, 
this right was decided to extend to the taking of shell-fish on 
the shore of a navigable river. The colonial ordinance of 1641 
extended the right of the riparian proprietor in the soil from 
high to low-water mark, where it did not exceed one hundred 
rods. But this was a qualified right to use the interest granted 
in such a manner as not to interrupt the rights of the public, as 
secured by the ordinance. The right of navigation was ex- 
pressly reserved. And the right of each householder to have 
free fishing, so far as the sea ebbs and flows, had been in the 
same ordinance declared. It v^as the policy of the colonial legis- 
latures, instead of granting away any portion of the public right 
of fishery, to extend and enlarge it. Hence the claim and appro- 
priation to public use of that which by the common law was 
private property, the fishery in rivers where the tide does not 
ebb and flow. It can not readily be admitted, under such a 
state of legislation, to have been the intention of the legislature 
by that ordinance to part with any of the public rights of fish- 
ery. The right to fish in waters where the soil was private prop- 
erty, having been appropriated and secured to the public, a 
grant of the soil in navigable waters to an individual could not 
have been regarded as putting him in possession of greater 
rights than he would have had by owning it without such grant. 
And it would be a strange construction to consider the right of 
fishery as granted away indirectly by another part of the same 
ordinance, which declared it. 

The testimony in this case does not prove any appropriation 
of the clam fishery to private use. The witnesses speak of the 
fishermen generally, and not of the owners of the flats, as tak- 
ing them for bait. The case does not show any such injury as 
will authorize the plaintiff to maintain the suit. It is not there> 
fore necessary to examine the principles upon which the dam- 
ages were assessed. 

Verdict set aside. 

OwNEBSHiP OF Kavioable Rivers — RiOHT OF Kavigation. — ^Tho owner* 
ship of navigable rivors is in the people: Home v. Richards, 2 Am. Dec. 574; 
Arnold v. Mundy^ 10 Id. 356; Rogers v. Jonts^ 19 Id. 493; Lansing ▼. Sndth^ 
21 Id. 89: HoUister v. Union Co., 25 Id. 36; Mayor of MobiU v. EsUwa, 33 

July, 1841.] Porter v. Foster. 59 

Id. 325. And the right to navigate pahlic waters and to fish therein Is in the 
imbtic at large: Landng v. Smith, 21 Id. 89. This right however is subject 
to legislative control: Hooker v. Oumminga, 11 Id. 249; Lansing v. 8mUh, 21 
Id. 89: Atiamey-general v. Stevens, 22 Id. 526. 

Bight or Fishery in Navioable River is common to all subject to leg- 
islative regulations: Carson v. Blazer, 4 Am. Dec. 463; ComvjonweaUh v, 
Chapin, 16 Id. 386; Lanmng v. Smith, 21 Id. 89; and is not affected by a grant 
of land from the state, including a navigable river: Brovme v. Kennedy, 9 Id. 
603. The principal case was cited to the point that as regards a right of fish- 
ing, the law makes no difference between shell-fish and swimming or floating 
fli^ in WeaUm v. Sampatm, 8 Cush. 355. 


rao KAin, 891.] 

Whxbb Pastt IB loNOBANT oT TiTLE OF THIRD PERSON at the time he enters 
into a oontnot of exchange, but is afterwards informed of it, and then 
continues to claim and use the article exchanged, he is guilty of oonver- 
sion, and an action of trover may be maintained against him without a 

NiOLiOBNOE OF Parut to Proceed against one who is known to have 
taken and used his property unlawfully, does not deprive him of hia 
right to do so, until the statute of limitations interposes. 

Tbotkb. Plaintiff sold one Gardner a horse, and reoeived 
therefor his promissory note payable in. eight months. As 
security for the note, Gardner conveyed back the horse to the 
plaintiff, but he (Gardner) was to have the use of it until the 
time of payment. Gardner afterwards conveyed the horse to 
defendant, who was ignorant at the time of the claim of plaint- 
iff, but was informed of it before the expiration of the eight 
months; he continued to use the horse after the expiration of 
that time and before the commencement of this suit. He knew 
the note had not been paid. There was no proof of any de- 
mand. The defendant requested the court to instruct the jury 
that a demand before bringing the action was necessary, and 
that if the plaintiff had had a lien on the horse it was lost by 
his negligence. These instructions were refused and defendant 
filed exceptions. 

D. T. Oranger, for the defendant 

Porter and Thacher, contra. 

By Court, Shsplet, J. The contract between the plaintiff and 
Gardner secured to the latter the right to keep and use the horse, 
tmtil his note becamp due, but no longer. His neglect to pay 
at that time would put an end to these rights; and the exercise 

60 Wakefield u Campbell. [Maine^ 

of acts of ownership would be without right and unlawful. He 
could not convey to the defendant greater rights or place him in 
a position more favorable than his own. The defendant, though 
ignorant of the title of the plaintiff at the time of his trade with 
Gardner, was informed of it, before the note became due, and 
continued, after he knew that it was not paid at maturity, to 
claim and use the horse. Being no longer able to make out a 
justification of these acts, they amounted to a conversion, as de- 
cided in Oalvin v. Bacm, 2 Fairf. 28 [25 Am. Dec. 268] 
The case of VincerU v. Cornell, 13 Pick. 294 [23 Am. Dec. 683], 
cited for the defendant, differs from this case. In that the 
defendant had parted with the possession, and did not exercise 
any act of ownership or control after the plaintiff became legally 
entitled to possession. In this, when the defendant was in the 
unlawful use, and when the action was commenced he had the 
right of property and the right to possession. The n^lect of a 
party to proceed against one, who is known to have taken and 
used his property unlawfully, does not deprive him of his right 
to do so, until the statute of limitations interposes. The other 
point made at the trial was not insisted upon here 
Exceptions overruled. 

OoNVBRSioK, What is: See note to Hale v. Atnea, 15 Am. Deo. IGO; oikv 
Dowd V. WadstDorth, IS Id. 567; Jfilier v. Phrnib, 16 Id. 456; Woodlmrf ▼• 
Lang, 19 Id. 345; Sanborn v. Colman, 23 Id. 703; Sober r, Wheeler, 24 Id. 
66; FkUiher ▼. Fletcher, 28 Id. 350; Graham ▼. Warner, Id. 65; Deni v. 
ChUee, 26 Id. 350; Irish v. Cloyes, 30 Id. 446; Hauetan v. Dyche, 33 Id. 130. 

Demand, how fab Necbssaby in Action ov Tbovsb: See note to /Here* 
V. Benjamin^ 25 Am. Deo. 400; also, JeweU t. Patridge, 28 Id. 173; H<m§' 
ton ▼. Dyehe, 33 Id. 130. 

Wasesield v. Campbell. 

[20 Uazmx, 893.) 

Whxbx Executor under License from Court to sell real estate for tlit 
payment of debts, sells a greater quantity than is authorized by the 11* 
cense, the sale is invalid. 

Writ of entry. Demandant claimed under a deed from one 
Famsworth, administrator of the estate of Small, to himself. 
Demandant showed that Famsworth was duly appointed by the 
probate court, and that he had been empowered by the court to 
sell real estate sufficient to raise one hundred and eighfy-five 
dollars in payment of the decedent's debts, and in pursuance of 
this license had sold him the premises in question for two hun- 

Jaly, 1841.] Wakefield v. Campbell. 61 

dred dollars. The ooimsel for the tenant contended that this 
sale ^WBS void as being in excess of the license; as the adminis- 
trator had power to sell only so much real estate as would pro* 
dace one hundred and eighty-fiye dollars. The judge ruled the 
sale to be void and a nonsuit was granted. 

Burbank, for the demandant. 

ndbbe^ contra. 

By Court, Emebt, J. The plaintiff insists, that the defend- 
aatSy having no title, but coming in as trespassers, they can not 
be allowed to dispute the title of the plaintiff in this case. 
That as the administrator acted in good faith, the deed is not 
void, because the land was sold for a greater sum than he was 
licensed to raise. The defendants rely on the case of Adams v. 
Morrison, 4 N. H. 167 [17 Am. Dec. 406]; Litchfield v. Cud- 
vjorth, 15 Pick. 23; Com. Dig., Power, C. 6, as decisiye of the 
case in their favor. The case in New Hampshire was one where 
a posthumous child was demanding his portion of his father's 
estate. And the doctrine of the court was, that if one, under 
license to raise a particular sum, sells and conveys an entire 
tract of land for an entire sum of money, exceeding in amount 
the sum authorized by the license to be raised, the whole sale is 
void, because the act is entire and there is no way to ascertain 
what portion of the land he had authority to convey, and what 
not. When separate tracts are sold for distinct prices, the law 
is otherwise. One may be legal and the other not so. And the 
following cases are cited by the court: Jenkins v. Keymis, 1 Lev. 
160; Batty v. CarsweU, 2 Johns. 48; Whiilockfs case, 8 Co. 188.' 

The case LUchfield v. Gwdworth, 15 Pick. 28, was a claim 
of land by an execution creditor of an heir, by a levy in part, 
and countenances the idea that "although trustees, who have 
power to sell, can never by direct or indirect means become 
purchasers of the trust property, yet these principles do not render 
the sale absolutely void." It is an abuse of authority which may 
be taken advantage of by any one whose interest is affected, that 
is, cestuis que trust and all for whom the agent acted have an 
option to avoid the sale and retain the property, or to confirm the 
sale and receive the consideration, as may be for their interest. 
And the court says an administrator without license from a 
<x>mpetent court, has no power to sell the real estate of his 
intestate. He is bound strictly to execute " the authority given 
liim, and a deed by him not given in pursuance of his authority 

1. 800.69. 

62 Wakefield v. Campbell. [Maine, 

would have no more operation to pass the estate of his intestate, 
than a deed made by a stranger. If under an authority to sell 
a part, he sells the whole, the act is unauthorized and void. 
He was licensed to sell to the amount of six hundred and f oriy 
dollars, and he sold the whole estate for nine hundred and fifty- 
three dollars and thirty-three cents. It must be wholly valid 
or wholly invalid. How can it be apportioned? Who shall* 
determine what part, and how much the pxirchaser, and which, 
and how much tiie heir shall hold? And further, that a con- 
veyance by one heir, and commencement of suit by his assignee 
for the land, is a' sufficient avoidance of the administrator's 
sale." The case of Adams v. Morrison^ 4 N. H. 167 [17 Am. 
Dec. 406], was cited by the demandant's counsel, but no allusion 
is made to that case by the justice in Massachusetts who deliv- 
ered the opinion of the court. The questions by him pro- 
pounded seem to be made in the conviction that it is impos- 
sible that they should be answered, except in a way to sustain 
the conclusion to which the judge arrived. 

That there is a difficulty attending a different view, is readily 
admitted. Yet it would seem to be veiy essential to the speedy 
settlement of estates that as far as practicable, in conformity 
with rules of law, it should be a primary object of the courts to 
sustain the doings of administrators. It is a principle in equity 
to consider that the execution of a power in a way exceeding 
the authority, is void only for the excess, and good for the resi- 
due, if the bounds can be clearly ascertained. And if there be 
cases in which the bounds may fairly be ascertained, as it is 
granted there may, if two pieces of land be sold for distinct 
prices; may it not also be discovered when the sale is made at 
so much per acre? And would there be any insuperable diffi- 
culty in considering the heir as interested in common with the 
purchaser in so many acres as the price may show were unwar- 
rantably conveyed? If there be any case then in which injus- 
tice may be prevented, by separating the good from the bad, in 
case of a sale for too great an amount, is it not going too far at 
once to denounce the whole as void merely because the sale is 
made for a greater sum than was needed? 

May not cases occur where a fair opportunity for a sale may 
exist, and very near or quite the full value is offered, which may 
exceed the amount for which the license is given, a few dollars, 
as in the present case, and yet if the bargain be not then com- 
pleted, the like advantageous proposal may not happen again? 
A new license may be obtained, perhaps, to seU the whole. 

July, 1841.] Wakefield v. Campbell. 63 


Additional expense must then be incurred, and possibly, no so 
good offer be had, and an essential injuiy is done to all con- 
cerned. May it not deserve consideration, whether, in contem- 
plating the whole operation of onr probate system, as to the 
administration of estates, and oxir statutes of limitation, a more 
liberal construction as to the execution of the powers of ex- 
ecutors and administrators be not strongly urged upon courts? 
Though an administrator has no direct interest in the soU as 
administrator, yet at present he is bound to inyentoiy real es- 
tate, has a right to the rents and profits, and if licensed to sell, 
by the bond which he gives, he is placed in such a predicament 
as to be holden for any excess which he may obtain, if the heirs 
Bee fit to call him to account. The truth is, much of the doc- 
trine of strictness as to the execution of powers, is the result of 
construction made upon the peculiarities of English conveyances, 
which are devised to uphold family settlements, raise jointures, 
and make provision for children. It is professed, that they 
would guard against perpetuities; yet their practice was to give 
powers for leasing for years or for lives, and trammeling the sub- 
ject with nice qualifications and with powers of revocation. 

Powers were originally in their nature equitable, but are by 
the statute of uses transferred to common law: 2 Burr. 1147.^ 
There are there two kinds of settlement; one by which the issue 
of the person to whom the first limitation is n^ade, shall certainly 
take, by giving the first taker only an estate for life. The other, 
by creating an estate tail in the first instance. But then. 
Lord Mansfield says, " That is a trick in law, by which, when 
the issue arrive at twenty-one, the entail may be barred; and 
there is a trick against that, to make a strict settlement." And 
he asks, '' What is the use of powers? It implies a strict settle- 
ment with power to make jointures, leases, and raise portions." 
Doe ex dem. Duke of Devonshire and Duke and Duchess of Port- 
land V. Lord Oeorge Cavendish^ 4 T. B. 741, in note, it is not 
necessary for us to resort to tricks for the purpose of efiecting 
the settlement of estates. But we are not to misapply, arbi- 
trarily, maxims which the changes of circimistances and law 
have made less appropriate to the present subject than formerly. 

It is a sort of axiom, that naked powers, unaccompanied by 
any interest, are to be construed strictly. And the case cited, 
BaUy T. CarsweU, 2 Johns. 48, is an instance. Where A. author- 
ized B. to sign his name to a certain note for a certain sum, 
payable in six months, and B. puts A.'s name to a note for that 

1. ZouA ▼. WooUttm. 

64 Wakefield u Campbell. piaine, 

smu payable in sixty days, A. would not be liable. There az6 
powers given to donees of particular estates, to be construed 
strictly in favor of remainder-men, and yet liberally enough to 
make provision for a posthumous child, though the terms were, 
" who should be living at his death:" Beale v. Becde, 1 P. Wms. 
244. And an eldest daughter, though first bom, when there is 
a son, has often been ruled to be as a younger child. There are 
powers reserved by the donor for the benefit of himself, or of 
his heir, who would have been entitled to the fee, if it had not 
been limited by the donor's act. These have received a Uberal 
construction. No power can be so framed as to protect an ap- 
pointment under it, from payment of the debts of the person 
appointing: 2 Yes. 640.^ 

It may not be amiss to observe, that the two leading cases 
cited in the case Adams v. Morrison^ 4 N. H. 167 [17 Am. Dec. 
406], Whitlocki's case, 8 Co. 138, as there stated, and the case of 
Jenkins v. Keymis, are both cases arising on the construction of 
powers such as have before been spoken of. Lord Mansfield, 
in Zowch ex dem. Woolston v. Woolston et al,,2 Burr. 1136, as- 
serted, that whatever is an equitable ought to be deemed a 
legal execution of a power. He further said that in some of 
the early cases, they reasoned in courts of law, upon these equi- 
table powers from notions applicable to naked authorities, un« 
connected with any interest, or to mere legal powers introduced 
by other statutes, instead of adopting the liberality of courts of 
equity; and considering these powers brought into the common 
law by the statute of uses, merely as a mode of ownership or 
property. And Justice "Wilmot said that " courts of law ought 
to concur in supporting the execution of these powers, and 
ought not to listen to nice distinctions that savor of the sophis- 
try of the schools; but to be guided by true good sense and 
manly reason." The state of New York has legislated exten- 
sively on this intricate subject; Maine has not. 

The principle on which our system proceeds is, that real 
estate shall be a fund for the payment of debts if necessary, that 
the administrator may sell on license. If he sell, and in the 
performance of his duty, commit errors, which might be fatal, 
if taken advantage of in season, yet if the heirs omit to seek 
their redress in five years, by our statute, c. 52, sec. 12, they 
are barred: Beal et al, v. Ndson, 14 Me. 344. And this limita- 
tion is made for the purpose of expediting the settlement of 
estates and quieting purchasers. Whether the persons subjected 

1. Alexandtrr. Alexander. 

July, 1841.] Wakefield v. Campbell. 66 

to injury from ihe misconduct of the adminifitrator have redress 
on his bond, they can ascertain, if they choose, by action. And 
in New York, it has been decided that strangers to the title are 
not to take advantage of this objection: Jackson t. Dal/sen,^ 5 
Johns. 43. In the present case, five years have not elapsed. 
The heirs may neyer claim, creditors could not, if they have re- 
ceived their dues from the administrator. 

Notwithstanding these suggestions and views, which have 
arisen in flxaTnining the decisions to which our attention has 
been directed, yet considering that the matter under discussion 
is a real action, in which the plaintiff is to prevail by the 
strength of his own title, if he fail to exhibit a prima facie good 
title in his opening, it is his misfortune, and he must bear the 
consequences of his failure. Our courts have jealously watched 
the proceedings of administrators on sales of real estate under 
license. They have been holden to a strict compliance with the 
requisitions of law in such cases. And if the sale be made of 
a greater quantity than authorized by the license, when it is as- 
certained only by the price, and that is greater than the amount 
for which the license is given, the sale has been deemed iavalid. 
We do not feel at liberty to overrule the decisions. We can 
not but perceive the great difficulty which might arise from 
countenancing a departure from the rule so often enforced. By 
the plaintiff's own showing, the sale was for too large a sum 
not warranted by the license. And at the time the nonsuit was 
ordered, it was so ordered in conformity with the law. 

The exceptions must therefore be overruled. 

ADMnfisnLATOR*s Sale, whbk Void because in Excess or Obdeb of Saxa 
But very few cases have arisen invoWing this sabjed In the deoision* 
turning on the validity of administration sales, the questions generally have 
been whether the administrator proceeded correctly in obtaining the order of 
■ale, or whether, having obtained the order, the premises have not been sold 
for an inadequate consideration. The order generally designates what prop- 
erty shall be sold, and but slight discretion being given to the administrator, 
sales of an excess are of rare occurrence. Tliose that have been brought be- 
fore the court have been where the order was to sell real estate sufficient to 
raise a certain sum of money. In those cases which have arisen, it has been 
held, where an administrator sells more real estate than he is authorized to 
sell by the order of the court, that such sale is void. Thus where executors 
were empowered to raise one hundred and seventy-four dollars and ninety- 
nine cents, and sold and granted by deed estate to the amount of one hun- 
and eighty-eight dollars, the proceedings were held void: Lochoood v. iS^^i<r> 
devanU, 6 Conn. 373. And where an executor or administrator acting under a 
license from the judge of probate authorizing him to raise a particular sum by 
the sale of real estate, sells and conveys an entire tract for an entire sum of 

1. Jackson v. Van Datfun, 
Am. Dko. Vol. XXXVU-4( 

66 Dickey u Linscott. [Maine, 

money «zceeding in amount the rom anthorized to be nused, the sale is void: 
Adamt y. JHorriBon, 4 N. H. 166; S. C, 17 Am. Dec 406. The oonrt said: 
" The reason of this is obvious. His [the ezecutor's] doings are valid so far 
as he acts in porsnance of the license, and no farther. When he goes be- 
yond his authority his acts are void." In Litchfield y. Cudworth^ 15 Pick. 
23, an administrator was licensed to sell real estate of his intestate for the 
payment of debts to the amount of six hundred and forty dollars, and he sold 
all the real estate, consisting of several parcels, for nine hundred and fifty* 
three dollars and thirty-three cents. The sale was held void. The oonrt in 
delivering its opinion said: "An administrator without a license from a com- 
petent court, has no power to sell the real estate of his intestate. His 
authority is derived wholly from the decree of the court. The oonrt has a 
discretion. He has none. He is bound strictly to execute the authority 
given him. And a deed by him, not given in pursuance of his authority^ 
would have no more operation to pass the estate of his intestate than a deed 
made by a stranger, or his own deed of a stranger's land. If under authority 
to sell a parti he sells the whole, the act is unauthorized and void.*' 

In the cases which have arisen some attempt was made to establish the rule 
that the sale should be void for the excess only, but this view was not favored, 
and the courts have held the whole sale void: LUcf^fiM v. Oudvwtihf 16 Pick. 
23; Lockwood v. Sturdevant^ 6 Conn. 373; Adama v. McrrUon^ 4t N. H. 166; 
8. C, 17 Am. Dec. 406. In the last case the executor had sold an entire tract 
for an entire sum. The court said: "As in such a case the act is entire, and 
there is no way to ascertain what portion of the land he had authority to con- 
vey, and what not, the whole conveyance is necessarily pronounced to be 
void." And in Litd^fiM v. OudtooHht Morton, J., said: *' How can it be ap- 
portioned ? Who shall determine which part and how much the purchaser 
and which and how much the heirs shall hold." 

DiOEEY V. Linscott, 

[20 lUnn, iS8.] 

O011T&A.OT8 fOB PsBFOBMANOB Or Pbrsonal Makual Labob, requiring health 
and strength, are subject to the implied condition that health and 
strength remain. 

Whxbb Pabtt Making Ck>NTRAGT for Pbbjtobmanob ov Term of Work Is 
prevented from entering on the work at the stipulated time by an act of 
Gk>d, and the disability thus produced lasts during the greater portion of 
the term, he will be excused from performing the work during the re- 
mainder of the term. 

Assumpsit from eastern district court, Chandler, J.» presiding. 
Plaintiff alleged and attempted to proye that defendant agreed 
to work for him for seyen months, beginning at a stipulated time; 
that defendant did not come at the time stipulated, or at all, to 
perform the work. The defendant denied that the contract was 
completed, and said that it was merely talked of; he also showed 
that at the beginning of the term and through the greater por- 
tion of it he was notable to work on account of sickness. There 
was eyidenco proying that at about the beginning of the term, 

July, 1841.] Dickey v. Linscott. • 67 

defendant set out to work for the plaintiff, bat being informed 
that plaintiff had hired another man, he did not go, but sent 
word to plaintiff that if he would send to Palermo, his residence, 
he (the defendant) would work for him, provided he had not 
hired some one else. Plaintiff went, but defendant, not being able 
to work, offered to hire another man, if plaintiff would secure 
his wages; this plaintiff refused to do. Defendant recoTered 
towards the end of the term and went to work for somebody 
else. Plaintiff's counsel requested the court to instruct the jury 
that though defendant was prevented from working by the act 
of God, nerertheless the plaintiff was entitled to damages for 
his fmitlees journey to Palermo; that it was defendant's duty to 
offer to work as soon as he recovered his health, and by neglect- 
ing to do so, his sickness during a portion of the time did not 
bar this action; that defendant should have given notice of his 
inabiliiy to work. The court, however, instructed the jury that 
if they believed the contract had been completed, the plaintiff 
would be entitled to damages, unless defendant was prevented 
from working by an act of Ood; that to the extent of that dis- 
abiliiy he would be excused from performance. Verdict for de- 
f endajit. Plaintiff filed exceptions.^ 

W, O. Crosby^ lot the plaintiff. 

TT. KeOy, conira. 

By Ooiurt, Wsston, 0. J. It is contended that the sickness 
of the defendant, which was the act of God, and his consequent 
inabiliiy to fulfill his contract, does not defeat the right of the 
plaintiff to recover damages for the breach. Cases have been 
cited where, upon express covenants, the performance of which 
had become impossible, without any fault in the covenantors, 
they were nevertheless held answerable in damages. These 
were doubtiess all justified under their peculiar circumstances. 
But in a contract for the performance of personal manual labor, 
requiring health and strength, we think it must be understood 
to be subject to the implied condition, that health and strength 
remain. If by the act of God one half or three fourths of the 
strength of the contracting pariy is taken away, performance to 
the extent of his remaining ability would be hardly thought to 
entitle him to the compensation for which hp may have stipu- 
lated while an able-bodied man. There may be cases where the 
hazard of health is assumed by the employer. This might be 
regulated by known and settied usage. Gtenerally, however, 
the right to wages depends upon the actual performance of 

68 Chick u Tbevstt. [Maine, 

labor. On the other hand, it is not expected that die laboring 
party should be subjected to any other loss where his inability 
arises from the visitation of ProTidence. 

The judge instructed the jury, that this would excuse per- 
formance; and it does not appear, that the-counsel for the plaint- 
iff contended at the trial for any other doctrine. He insisted, 
however, that he was entitled to damage, for his fruitless jour- 
ney to Palermo, on the invitation of the defendant. It is a 
sufficient answer to this claim, if otherwise available, that it is 
not sued for in this action. It seems from the evidence, that 
the defendant might have labored a month or two the latter 
part of the stipulated period. But the contract vrns entire, 
beginning at a time when the days are shortest, and covers 
ing principally the season when the earth can not be cultivated. 
The wages were to be at a certain monthly rate. The contrset 
failing without the &ult of the defendant, it would be neither 
just nor equitable to hold him obliged to labor for the plaintiff, 
at the monthly wages stipulated, when the days were longest, 
and labor in husbandry most valuable. The plaintiff was not 
obliged to accept such a partial performance. He had a right 
to secure the services of another man, and might have had as 
many laborers as it was for his interest to employ. And in our 
judgment, the court below was justified in withholding the in- 
structions requested. 

Exceptions overruled. 

Act or God or Inxvitabli Aooidkiit Bxcdses Kov-raKioBMAVOi ol s 
oorenant, when perfomuukoe u reDdered impoflsible^ or saoh inevitable aoci- 
dent evidently was not in the contemplation of the parties, provided against 
by the general oovenant: Smgleion v. Carroll^ 22 Am. Beo. 96. The princi- 
pal case was referred to with approval in Leopold v. SaXhtijfy 89 QL 420. 

CmoK V. Teevbtt. 

[20 Hadix. 462.] 

Lbqal CovsmBRATioN, WHAT SuwiciBNT.— A I088 or damage to the prom- 
Imo Ib aa good a legal consideration to support a note, as a benefit to the 

Tbustees 07 VoLTTNTART ASSOCIATION ABB LIABLE OK NoTi given by them 
for labor done for the association; and the non-joinder of the other mem- 
bers of the association shonld be taken advantage of by abatement. 

Assumpsit from the eastern district court, Chandler, J., presid- 
ing, Trevett and many others voluntarily associated together 
for the purpose of erecting a parsonage house. They were not in- 
corporated. Trevett and two others gavA plaintiff a promissoxi 

July, 1841.] Chick v. Trevett.. 69 

note for services perfoizaed on the house, and signed it " Trus- 
tees of said house." Plaintiff brought an action against the 
three on this note. Thecourtheld the action maintainaUe, and 
defendant appealed. 

Ediy, for the plaintiff. 

Pierce, cofUra, 

Bj Cknirt, Wxston, 0. J. One objection taken to the liabilitj 
of the defendants on the note, is the alleged want of considera- 
tion. It is not necessazy that this should inure to their benefit. 
A loss or damage to the promisee, is as good a legal considera- 
tion, as a benefit to the promisor. They promised to pay the 
plaintiff, for labor performed or to be performed, for the asso- 
ciation. This was a loss to the plaintiff amply sufficient to sus- 
tain their promise, if they had not been members of the associa- 
tion. It is further insisted, that as they signed as trustees, their 
personal liability is excluded. If this designation indicates a 
mere agency, and they had authority from their principals, they 
aie not personally bound. And if in such case, they had acted 
without authority, the apt remedy would hare been an action on 
flie case: BaUmi t. Talbot, 16 Mass. 461 [8 Am. Dec. 146]. But 
the use of the term, trustees, indicates rather that the l^;al in- 
terest is in them, than that they act as mere agents. And if it 
is to be understood, that they represented a body of men who 
had Toluntarily associated to build a meeting-house, the case 
finds, that the defendants were members of that body. In such 
case, they are properly made defendants, if the other members 
of the association might also have been joined. If they would 
haye taken advantage of thisobjection, they should ha^e pleaded 
in abatement. 

Exceptions overruled. 

Lboal CoKsmiRAnoK, Wbat Sumonurr.— A benefit to the promiBor of 
an injnzy or inooovenienoe to the promuee, Is a legal oonsideration: lUher r. 
BartleU, 22 Am. Bee. 226; Hind v. HoUUkip, 26 Id. 107. 

Pkbsonal LiABiLrnr or Tbubtxs on Note: See note to Thaeher y. Dk^ 
more, 4 Am. Deo. 63. Tnutees of a corporation who exeoated a pramiMory 
Bote^ to which they signed their several names as tmstees and affixed theif 
individoal seals, were held liable personally: JIfcClure ▼. BenneU, 12 Id. 
223. SeealsoBor^berv. JfecAantc«*/iM. Co., 20 Id. 664. In Powers v. Brigg$, 
79 lU. 493, the facts were similar to those in the principal case and ths 
tiual ees were held liable. The court referred approvingly to the principal 

Kov-JODnHOt ov Pbopkb Paatixs is matter for plea in abatement: Wheel- 
wright v. Dtpeytter, 3 Am. Dec. 345; Bobertson v. Smith, 9 Id. 227; BeU ▼• 
ZsysMM, 16 Id. 83; Le Page v. McCrea, 19 Id. 469; OObert y. Dkburmm^ 
mid. M2i Ja^w Pitrhsr. 24 1^ 71ft. BUHherr. Loop, 26 Id. 28& 


nr THB 




Wymak V. Rab. 

[11 OlIA AXD JOBMOir, 416.] 

lAKzirai KoTX fOB Goods Sold Ain> Deuvebed doei not esrtlngoidi Um 

original oanse of action. 
Whxbb Note has been Given, its PBODUonoN is Gensballt Bbquibbd 

in an action on the original oaoso, for the seoority of the defendant^ and 

not from any rule of evidence which would prevent the introduction of 

evidence of indebtedness without the production of the note. 
ESviDENCB OF Indebtedness without Pboduotion of Note is adminlbto 

in such a case. 
Pboiossobt Notes abb not Pbesuiibd to bb Made on Timb. 
Whebe Pabtt is not Bound to Pboduoe Pbomissobt Notb» evidonoo 

offered with a view to account for its non-production is unnecessary and 


Appeal from the Baltimore county court. Wyman & Oo., on 
the strength of certain representations of the defendant, sold the 
defendant's sons a bill of goods. The bill not being paid, this 
action of trespass on the case was brought. On the trial it ap- 
peared that certain notes had been gjven by Bae's sons for the 
goods; but it did not appear whether the notes were payable on 
demand or otherwise. Defendant objected to evidence of in- 
debtedness until the notes were produced, or until their non- 
production was legally accounted for. The court sustained the 
objection; the defendant excepted. This constitutes the first 
bill of exceptions. Plaintiffs then o£Eered evidence to account 
for the non-production of the notes, to which defendant ob- 
jected. The court sustained the objection, and plaintiff excepted. 
This constitutes the second bill of exceptions. 

Dec 1841.] Wyhan v. Ras. 71 

Lairobe^ for the appellants. 

NeHson^ for the appellee. 

By Court, Asghzb, J. The taking of a note for goods sold 

and deliyered, certainly does not extinguish the original oanse 
of action. An action on the common counts may be sustained 
by proof of the sale and deliveiy of the goods, although a note 
may have been giyen therefor: 17 Serg. & Low. 162. If how- 
ever a note has been giyen, in such case the production of the 
note is generally required, for the securify of the defendant, 
and not from any rule of eyidence which would prevent the in- 
troduction of evidence of indebtedness, without the production 
of the note. It was clearly competent, we think, for the plaint- 
iff to produce other and further evidence of indebtedness, with- 
out producing the notes taken for the goods. 

If it were important for the defendant to show, that the 
credit given on the notes had not expired, the burden of such 
proof was upon him. He should have given notice to have 
them produced, and if not produced, proved their contents. 
There is no evidence in this bill of exceptions to show the 
notes were on time, and tiie law certainly makes no such in- 
ference. We therefore think the court erred in the opinion 1^ 
them expressed in the first bill of exceptions. 

The evidence in the second bill of exceptions was offered to 
account for the non-production of the note; the court rejected 
the evidence. If the plaintiff, as we have seen, was not bound 
to produce the note, he was certainly under no obligation to 
account for its non-production, and the testimony offered with 
such view, and such view only, was useless, unnecessary, and in- 
admissible. We concur with the court in the opinion by them 
expressed in the second bill of exceptions. 

Judgment reversed and procedendo av^arded. 

Debt how fab Exunqitishbd bt Givnfo Note: See note to Chodnow v. 
Howe, ante, 46. 

Non MUST BB Produobd at Tbial in Suit on Obiodtal Contbaot, or 
ha absence must be acoonnted for: Bolmea ▼. De Oamp, 3 Am. Dee. 208. 
The principal case is cited in rapport of this point in Meyers v. SmUh^ 27 Md. 
80; and Hooper v. Straeburger, 37 Id. 403. 

72 Andebson v. Critcheb. lMaryIaiid» 

Andebson v. Ghetoheb. 

(11 Qiub k JoBxtcm, 460.1 

the registratiozi laws of the state pasMS no title whatever in the demiied 
premiaes to the lessee. 
OonNAVT TO Pat Rs5T is iNOPERiiTiTiB AND VoiD in such an instrament, 
and no action can be maintained thereon. 


by an action of trespaes g. e. /. if the oooapation is without his eonaent, 
or by an action for nse and oocnpation or assumpsit if the lessee oooapiea 
with his consent. 
Whxbb AaBKSMENT Dbclabed on is not Aobxexxnt Oivxn on Oteb 
aoeording to its tnie intent or meaning, a demnrrer to the dedaratioo 
should be sustained. 

Appeal from Harford oouniy court. Oritcher brought an ac- 
tion of covenant against Anderson. There were three counts in 
the declaration; the decision was for the defendant on the first 
two counts and for the plaintiff on the third. The decision on 
the first two counts was not appealed from. Anderson appealed 
from the decision on the third count. This count alleged that 
Critcher leased certain premises to the defendant ** from the 
twenly-fifth of March in the year 1834, until the tenth of May 
in the year last mentioned, and so from year to year, for so long 
a time as they the said plaintiff and defendant should please." 
The declaration also alleged a covenant of the lessee to i>ay rent, 
on which this action was brought, the defendant being in de- 
fault. The oyer of the agreement as far as is material is as fol- 
lows: '* Mem. of agreement entered into this twenty-fourth day 
of April, 1833, between John Critcher, etc., of the one x>art, and 
Donahoo and Anderson, etc., of the other part — ^witnesseth, 
the said John Critcher binds himself, his heirs, etc.,- to give 
said Donahoo and Anderson a lease for ten years" of the prem- 
ises in question. Then followed, among other covenants, the 
covenant to i>ay rent. The instrument was signed by all the 
parties, and witnessed but not acknowledged and recorded. 
The defendants demurred to the declaration on several grounds. 
1. Because the lease professed to pass an interest in lands for 
more than seven years and had not been acknowledged and re- 
corded as the law required, and was therefore void. 2. Be- 
cause the lease set out in the declaration was variant from that 
shown to the court, in this: First, that the declaration alleged 
lease to be with defendant, whereas the instrument produced 
was a lease to defendant jointly with Donahoo. Second, that the 

Dec 1841.] Andebson v. Cbitcheb. 73 

declaration set out a lease from year to year» whereas the indent- 
nre shown the ootirt was a lease for ten years. Third, that the 
lease declared on was from the twenty-fifth of March, 1834, to 
the tenth of May in the same year, and so from year to year, 
whereas from the oyer of the memorandum it appeared the lease 
was to commence on April 24, 1833. Fourth, that the lease de- 
clared on began on the twenty-fourth of March, 1834, whereas 
the lease shown had no certain time of commencement. Each of 
these variances constituted a separate ground of demurrer. The 
oonrt rendered judgment for plaintiff. 

8coU, for the appellant. 

Bradford, contra. 

By Oonrt, Dobsst, J. The dedaiation in the case before us 
contains three counts, to all of which the defendant demurred. 
To the first two counts the court ruled good the demurrer; and 
from such their decision no appeal has been prosecuted. The 
demurrer to the third court was oyemiled, and from the judg- 
ment of the county court oyerruling that demurrer, the present 
appeal has been prayed. We deem it unnecessary from the 
liew we have taken of this case to determine, whether the agree- 
ment entered into by the parties be a lease or a mere agreement 
for a lease, nor do we consider it necessary to decide on the 
sufficiency of many of the grounds of demurrer which haye 
been discussed before us. There is nothing in the agreement 
from which it can be, with any degree of certainty, ascertained, 
whether the demised premises be in the state of Maryland, or 
where they are located. The appellants insist that they lie in 
Maryland, and that the instrument of writing on which the 
poresent action of covenant is founded, is for the term of ten 
years, determinable, however, within the term, at the will of the 
appellant, upon his giving notice to the appellee, on or before the 
month of June, otherwise the term will continue for another 
year. With this construction of the agreement we concur, and 
if it be conceded that the demised premises lie in Maryland, we 
think the court erred in overruling the demurrer. Because the 
agreement not being acknowledged and recorded agreeably to 
the registration laws of the state, it passed at law no titie what- 
ever in the demised premises to the appellant, and consequentiy 
the covenant for the payment of rent which is dependent on the 
appellant's title, or interest in the demised premises created by 
the agreement, is wholly inoperative and void; and no such 
action of covenant can be maintained thereon, whether regarded 

74 Newcomer v, Kline. [Maryland, 

as a lease or a coyenant for a lease. If the appellant has under 
color of this agreement, oconpied the property intended to be 
demised, the api>ellee'8 remedy for the- rent is not in covenant; 
bat if the occupation be without his assent, it is trespass quare 
dau9um /regit; if with consent, an action for use and occupa- 
tion, or on assumpsit upon an agreement from year to year of 
similar import with that ine£Eectaally executed, and which the 
law implies as existing between the parties. 

Should the demised premises not lie in Maryland, we think 
the demurrer ought to haye been sustained; because the agree- 
ment declared on in the third count is not the agreement given 
on oyer, either according to its tenor, or true intent and mean- 
ing, as we interpret it. 

The judgment of the county court is reversecl, and procedendo 

Judgment reversed and procedendo awarded. 

Pbikoipal Oass has bbbn Citbd to the Followino Pointb: In PM v. 
Reynolds, 31 Md. 112, to the effect that no interest in land for a term ezoeed- 
ing seven years can be created by acts in pais; and Kiihiey ▼. Jftruitdb, 43 Id. 
121, in support of the position that lessees holding under an invalid lease are 
liable for rent on an implied verbal agreement. The principal case was ap- 
proved in Lawson v. Snyder, I Id. 77; and in Howard v. Ckurpenter, 11 Id. 
276, the language of the court regarding the validity of the lease and the 
plaintiff 's remedy for rent is quoted with approvaL 

Newoomeb and Stonebbaeeb t;. Ellinb. 

[U QZLL m> JOHKBOV, 46T.] 

Whxbb wosd <*I>ollabs" was Omitted from Bill Sinolb, by 

so that a party was deprived of the spedfio security intended to be given 
thereby, he will be granted relief in equity. 

Pabol Eyn>BNCE not Adbossiblb to Explain Patbnt Ambiouxtt. 

Partt Entitled to Rkuef in Equitt though Bbhxdt at Law Bzibtb, 
where on-account of a mistake in drawing up the instrument intended to 
secure the remedy, it is not as full, adequate, and complete as the one con- 
templated by the parties. 

Jx Joint anb Sbvsral Bond, all Oblioobs are Pbinoepal Dbbtobs, as 
between the obligors and obligees, though as between eaoh other they may 
have the rights and remedies resulting from the relation of principal and 

Appeal from the equity side of Washington oounty court 
One Newcomer requested a loan of money from the complain- 
ant, which complainant agreed to furnish if Newcomer would 
give security. Thereupon Newcomer and Stonebraker, his 

Dec. 1841.] Newcomer u Elike. 76 

aecariiy, executed to oomplainant their joint and seyeral bill 
single. Complainant then advanced the money. The instru- 
ment -was properly signed and sealed, but by mistake the word 
*' dollars'' was omitted. The defendant, on an application, re- 
fused to i>ay said bill. The bill prayed for relief against this 
mistake, its correction, and that defendants be compelled to pay 
the sum loaned. The defendants demurred to the bill on the 
ground that the complainant had a complete remedy in a court 
of common law. The court OTcrruled the demurrer and 
ordered the defendants to pay into coiurt the amount of the bill 
with interest and costs. 

Palfner^ for the appellants. 

Price, contra. 

By Oourt, Stephen, J. We thinkthat the decree of the court 
below in this case was correct, and ought to be affirmed. The 
complainant had not full and adequate remedy at law, and was 
therefore entitled to the relief which he solicited at the hands of 
a court of equity. The iQstrument executed by the principal 
and his surety, was intended to be a joint and seyeral single 
bill, for the payment of money lent. By mistake and accident, 
as charged in the bill, to which there was a demurrer, the word 
"dollars" was omitted by mistake, in consequence of which 
the plaintiff was deprived of the specific security which was in- 
tended to be given, and was tmable to support his action upon 
the single bill, in a court of law, as a spedalty. The principle 
being well settled that the consideration of a single bill can not 
be* inquired into, or a failure of it averred or proved in an action 
upon it at law: 9 Oill & J. 842.' It is therefore inconsistent 
with the legal attributes of such an instrument, or its character 
of conclusiveness, as a specialty, that it should rest partly in 
writing, and partly in parol. Where the ambiguity is not latent, 
and raised by extrinsic evidence, but patent, or apparent on the 
face of the instrument, parol evidence is not admissible to ex- 
plain such ambiguity; as where a blank is left for the devisee's 
name in a will, parol evidence can not be admitted to show whose 
name was intended to be inserted: Boscoe on Ev. 12. 

According to contract, the plaintiff was entitled to a security 
of higher dignity than a mere parol promise. He was entitled 
to a sealed instrument, the consideration of which could not be 
inquired into, and although he might have a remedy for his 
money in a court of law, in a different form of action, it might 

1. JC«y T. Knott, 

76 Newcomeb V, Kline. [Maryland^ 

not be so fall, adequate, and complete, as the one contemplated by 
the parties: 7 Conn. 649.' In that case a bond was intended to 
be executed, but the seal was omitted by accident; relief was 
granted in equity, although it was contended that the {Muiy had 
his remedy at law. The judge in deliyering his opinion observ- 
ing, that the plaintiffs were entitled to a bond, the consideration 
of which could not be inquired into at law. The remedy might 
not be adequate. 

No doubt can be entertained as to the jurisdiction of a court 
of equity to correct the mistake in this case, and that such relief 
will be granted even in the case of a surely. See 1 Johns. Oh. 
609.' The surety in this case is equally bound with the princi- 
pal for the payment of the money; in a joint and seyeral bond, 
and as between the obligors and obligees, all the obligors are 
principal debtors, though as between each other they may haye 
the rights and remedies resulting from the relation of principal 
and sureiy : 6 Id. 809.' In the same book, 807, Ohanoellor Kent 
says: A pariy who joins in a bond as surety, is as much bound 
in law and equity as the principal. Such contracts are of every 
day's occurrence in the business of life, and recognized as valid 
in every system of jurisprudence; and it would be most eztra- 
ordinaiy and a very great blemish in the administration of jus- 
tice, if the protection of a coiurt of equity was altogether denied 
to a creditor requiring equitable assistance against a surety. 
The surety is, in the contemplation of a court of equity, as much 
bound as the principal, by the terms of his contract. So in 
page 806, the chancellor says of the surety, by joining in the 
bond he becomes a princii)al debtor to the obligee, and the debt 
is presumed to have been created upon the credit given to the 
surety, as well as to the princii)al debtor. Upon the whole, we 
think the decree of the court below is correct and ought to be 

Decree affirmed. 

MisTAKX nr DiuLwnro iNarRUMSNT is Gbound vos Bquitabli Bsuirs 
Chasmberiain v. TAompaon, 26 Am. Deo. 390, and note; King v. Toi^toi, 2t 
Id. 104; Jfoors v. Vich, 32 Id. 301; Clark v. Munyan^ 33 Id. 752; Btardde$ 
V. KnigJU, Id. 193; Avery ▼. LewU, Id. 203; Mu\ford ▼. Shepard^ Id. 432i 
PiUdmry ▼. Dugan, 34 Id. 427; also see NoirUm ▼. Marden^ 82 Id. 132; and 
ChampUn ▼. LajfUn, 31 Id. 382. The principal case was approved in Grim v. 
Withers, 26 Md. 569. 

RxMEDT AT Law, Effect of on Right to Equitable RKUEr: See 1VH» 
let Y. Overton, 1 Am. Dec. 72; Long v. MerrUl, 7 Id. 700; Mddletowm Bmik 
T. Bums, 8 Id. 164; Armsujorthy v. Cheshire, 24 Id. 278; Bmik ef Uiha ▼. 
Uticti, 27 Id. 72; New London Bank v. Lee, Id. 713. 

1. MmMIU t. HaughUm. a. Wi$«r y. BtaeUy. S. Atryv. JtaM(f. 

Dec. 1841.] DoBSBT v. Sheppabd. 77 

ADXiaaxBiUTr or Pabol Evidknos to Explain Axbiouitibs: BeeStaret 
T. Freeman, 4 Id. 155; DooliUle ▼. BJakedey, Id. 218; Cock v. TayUyr, 5 Id. 
<t50; Brown v. Bebee, 6 Id. 728; Mam ▼. Mann, 7 Id. 416; Cfoddard v. ^«- 
hw, 9 Id. 663; CZatnemon^ ▼. OariUm, Id. 88; //o^ ▼. Benner, 21 Id. 394; 
Skeaman ▼. ^nyel, 23 Id. 166; Jokna v. OAicrdb, id. 651; Scanlam ▼. YTrvAli 
25 Id. 344; MoUere v. Pa. F. In$. Co., 28 Id. 675. 

DoBSEY V. Sheppabd. 

[12 OiUt AHD JoRvaoir, 192.] 

b IB KicMBARY TO Vauditt Of NnKCUPATivs WiLL tlittt the tMtamentary 
oapadty of the deceased, and the animus Uatandi at the time of the al- 
leged nanoapation, appear by the clearest and most indispntable testi- 

NmoupATivB Will Made bt Intkbbooatobiss Requxbxs STBioneB Peoov 
of spontanei^ and YoUtion than wonld be required in an ordinary case. 


FUSED where facta leave doubt as to the mental capacity of the testator» 
and there is not sufficient proof of spontaneity and of the ammu$ teatandJL 

Ajbveal from the oxphans' court of CSalyert county. The ap- 
pellants oflBsred for probate the following paper, purporting to 
be the nuncupatiyewiU of H. Ooberih: *' We, the underaignecU 
oertify that Mr. Hezekiah Oobertb, on the morning of the tweniy- 
eigbih of October, 1841, said in our presence that he wished 
Doctor George W. Dorsey to act as trustee for his son, to be his 
administrator, and, to use his own words, he wished him to be 
his general agent; he moreoyer said he intended it to be his last 
will." Then followed the names of four subscribing witnesses* 
The appellees objected to the probate of the paper on seyeral 
grounds, the principal one being that it was procured at the in- 
stance, and by the solicitations, importunities, and request of 
persons present at the time, the testator being too weak to re- 
sist. The depositions of ihe subscribing witnesses were sub- 
stantially as follows: That on the morning of the deceased's 
death they were all in the room with the deceased. That Doctor 
Sedgwick (one of the witnesses) told Coberth that if he wished 
to make any arrangement of his affidrs, then was the time to do 
it, as he had no time to lose. Coberth replied that he wished 
to make arrangements, but wanted to rest first; that Doctor 
Weems (another witness) then said to Coberth that if he wished 
to make any provision for his little son, that was the time and 
he could rest afterwards. That deceased then called for Doctor 
George W. Dorsey, who came to the bedside. That Doctor Sedg- 
wick then asked deceased if he wished Dorsey to be the trustee 

78 Dorset v. Sheppard. [Maryland, 

of his child; deceased answered yes; then Sedgwick asked him 
if he wished Dorsey to be his administrator; to which deceased 
replied yes, and added, general agent. Doctor Weems then 
asked deceased if he wished it to be his last will and testament, 
to which deceased said yes. There was a question as to the tes- 
tator's sanity, but the evidence on this point sufficiently appears 
from the opinion. The court refused probate of the instrument, 
and Dorsey appealed. 

SoUers and Pinkney^ for the appellant. 

TujcIc and Alexander^ contra. 

Bj Court, DoBSET, J. Nuncupative vrills, though tolerated, 
are by no means favorites of the law. Independent of the stat- 
tute of frauds altogether, the factufn of a nuncupative will re- 
quires to be proved by evidence more strict and stringent than 
that of a written one in every single particular. This is requi- 
site in consideration of the facilities with which frauds in setting 
up nuncupative wills are obviously attended. Facilities which 
absolutely require to be counteracted, by courts insisting on 
the strictest proof as to the facta of such alleged wills. Hence 
the testamentary capacity of the deceased, and the animus tes- 
iandi at the time of the alleged nuncupation, must appear, in 
the case of a nuncupative will, by the clearest and most indis- 
putable testimony: See Lemama v. BonsaU,^ 2 Eng. Eccl. 147; 
1 Williams on Ez'rs, 62; and the case of PriscUla E. Yamall's 
will, 4 Bawle, 62 [26 Am. Dec. 116]. A will made by inter- 
rogatories is valid; but undoubtedly, whenever a will is so made, 
the court must be more upon its guard against importunity, 
more jealous of capacity, and more strict in requiring proof of 
spontaneity of volition, than it would be in an ordinary case: 
Oreen v. Skipvoorih et al,, 1 Eng. Eccl. 32. According to these 
sound and well-established principles, let us proceed to the 
examination of the case before us: first, premising that no be- 
quests having been made by the alleged nuncupative will, it is 
not subject to the operation of the statute of frauds in relation 
to such testaments; nor to that of the act of assembly of 1810, 
c. 34. The only effect of the will, if admitted to probate, and 
it were competent to effectuate the supposed intent of the tes- 
tator, would be to secure to the appellant the appointment of 
executor or administrator of the deceased, and the guardianship 
of his only child. The latter object, however, could not be 
accomplished; a written vdll being made indispensable for such 
a purpose, by the statute of 12 Car. 11., c. 24. 

1. Lemann ▼. Bontall. 

Dec 1841.] Dorset v, Sheppard. 79 

To the admission to probate of the thII in question, a num- 
ber of objections were interposed in the orphans' court, most of 
which we deem it unnecessaiy to examine. That on which we 
think the decision of the cause mainly depends, as far as such 
objections are concerned, is the allegation of the appellees, that 
the will, attempted to be proved, was not the yoluntaiy act and 
free will of the deceased, but he was induced to speak of his 
affiurs, as mentioned in said paper, by the suggestion of others, 
only a short time before his death, and when he was not in a 
mental or physical condition to make a will, or execute a valid 
deed or contract; and that in the situation in which he was 
placed, and the circumstances connected with the execution of 
said paper, he was too weak to transact business, or to resist 
the suggestions that were made to him, of the necessiiy of mak- 
ing a will; and said words, attributed to the deceased, were 
used by him in consequence of the undue influence of said sug- 
gestions. To establish the will, the appellant produced four 
witnesses, being the only persons, except himself, who appear 
to haye been with the deceased at the time it is alleged to have 
been made. Two of those were the attending physicians; one 
a person sent for by the appellant, and the fourth an accidental 

The orphans' court proceeded to take their testimony; and as 
respects the saniiy of the decedent, what have they testified? 
The first witness. Dr. Sedwick, after detailing what he alleged 
as having occurred on the morning of the making of Coberth's 
testament, and of his death, proceeds thus: '' This deponent 
further says, that the reason why he mentioned this subject to 
Hezekiah Coberth was, his having heard him, during his illness, 
express a wish to make some arrangement respecting his aJSiedrs; 
that they were not at that time, as he wished; and that he wished 
that they. Dr. L. L. Weems ^d himself, should do something 
for him, as he wished to recover and recruit to make some ar- 
rangements; and that at the time he Hezekiah Coberth made 
these declarations, he was perfectly sane; and that the afore- 
mentioned words, purporting to be his last will, were spoken by 
Mr. Hezekiah Coberth in the presence of him the deponent. Dr. 
L. L. Weems, James M. Sollers, and James Williams; and that 
they were spoken in his last illness, and in his own house and 
place of residence; and that he this deponent was called to Mr. 
Hezekiah Coberth, on Saturday previous to his death; and that 
thew<»d8 expressive of a disposition to make some arrange' 

80 Dorset v. Sheppard. [Maiyland, 

ment, were 8X)oken a paii on Monday, and a part on Taesdaj or 
Wednesday." The deceased died on Thursday morning, as 
proved by Dr. Sedwick. He gives no testimony as to the sanify 
of the mind of the decedent, at the time of the nuncupation in 
question, but confines his evidence on this subject, to its state 
some one, two, or three days before. Dr. Weems states that 
** on Thursday morning he found him (Coberth) in a dying con- 
dition, but perfectly rational." James M. Sellers says, '*he 
believes that Mr. Hezekiah Coberth was rational" at the time 
of the alleged nuncupation. ' But what degree of rationaliiy was 
meant by the witness? Whether a mere exemption from de- 
lirium, or such a degree of intellect as would enable its posses- 
sor to make a valid deed or contract, or a reasonable or sensible 
disposition of his property, does not appear. James Williams, 
the remaining witness, gives no testimony as to the sanity of the 
deceased. When then we advert to the fact, that the want of 
mental capacity in the deceased, was a ground of objection to 
the probate; that, independentiy of such objection, it was the 
duty of the appellant to prove such capacity by the clearest and 
most indisputable testimony; that of tiie four witnesses to the 
will, but two of them testify as to such capacity; that he who does 
so most strongly, says, tJiat when he visited Ooberth, on the 
morning of the alleged nuncupation (which was the morning of 
his death), he found him in a dying condition; that all the &ots 
given in evidence by the witnesses as to the conduct of the de- 
ceased, and those around him, during the time of the alleged 
nuncupation, leave upon the mind doubts as to the mental ca- 
pacity of the testator. We think the orphans' court were right, 
upon that ground, in refusing to admit to probate the proffered 
nuncupative will. We think, too, looking to all the proof in 
the cause, and the manner in which, by interrogatories, the al- 
leged nuncupation was drawn from the decedent, tiiat there was 
not such proof of spontaneity, and of the animus testandi, as is 
indispensable to the validity of such a will. The only rex)orted 
case, which we have met with of a will made by interrogatories 
to the testator, is that of Oreen v. Shipworth etal.,! Eng. Eod. 
82: at which it is only necessaiy to glance for a moment, to 
see that its admission to probate stands upon grounds infi- 
nitely stronger than could be urged in favor of that now under 
consideration. To grant probate to the will now before us, 
would, in our opinion, establish a precedent fraught with the 
most dangerous tendency. 
The decree of the orphans' court is affirmed, with costs. 

Dec. 1841.] State v. Price. 81 

KuNODFATivx WiLLB» HOW VAB Vaud: See note to 8yte» v. 8yhe$, 20 Am. 
Dee. 40^ ftnd note 44, where this subject is discassed; also Wnm v. Bob, 23 
Id. 258; TamalTa WiU, 26 Id. 115; MeOtme y. Boiue, 31 Id. 488. The 
principal case is cited with approval in HammeU y. ShofihBf 41 Md. 219. 

State v. Fbiob. 

(13 OiLL AITD JOBHSOV, 900.) 

BiTLB THAT Indtotmert hust Nsoattve Exobftiovs iit Statutb doea nol 
apply to a case where the charge preferred ex naimra rd conolnalvalgr 
imports a negative of the exceptions. 

Covta JuDiGTALLT EjTOWB WHAT A BiLLiABD Tabu IS, and that it is not a 
table at which faro is usoally played. 

BiLUA&D Tablb used fok Plating Game of Faso ceases to be a billiard table 
in the eyes of the law, and does not fall within the exception of a stat- 
nte prohibiting the keeping of any gaming table except billiard tables. 

Imdictment charging that appellee '* tmlawfollj did keep a 
certain gaming table called a faro table, at which said gaming 
table, unlawfully kept as aforesaid, the game of faro was then 
and there unlawfully played for money, against the act of as- 
sembly in such cases made," etc. The indictment was found 
under the act of 1826, c. 88, which enacted that " eveiy person 
who shall be duly convicted of keeping any E. O. table, or any 
other kind of gaming table (billiard tables excepted), at which 
the* game of faro, equality, or any other game of chance shall 
be played for money, shall for the first offense forfeit and pay," 
etc. The defendant demurred to the indictment on the ground 
of its insufficiency. The demurrer was sustained, and the state 

Boyle, for the state. 

Handy, Pitta, and Bichardscn, contra. 

By Court, Dorset, J. The correctness of the judgment of the 
eouniy court, it is asserted by the appellee, is fully established 
by the general principle, as stated in Archb. Cr. PI. 21, and 
other elementary writers upon the subject, '^ that if there be any 
exception contained in the same clause of the act, which creates 
the offense, the indictment must show, negatively, that the de- 
fendant or subject of the indictment does not come within the 
exception." If the meaning of this rule be, as is contended, 
that the indictment must contain an express negation of the ex- 
ception, it is not warranted by a fair construction of the opin- 
ions of the court, in the cases referred to, as its basis. In 

Ax. Dso. Vox.. XXXVn— 6 

82 State u Price. [Maryland, 

announcmg such a principle, the court must be understood as 
asserting it in reference to the cases then before it, and those of 
a similar character. In all of which it will be found that, but 
for such negation, the guilt of the accused would not conclu- 
sively appear. Under the exception he might be innocent, al- 
though every allegation against him be fully proved. The rule, 
in such cases, and in such only has it ever been declared from 
the bench in any reported case that we can find, is undeniably 
true. But to apply it to a case like the present, where the 
charge preferred, ex ncUura rei^ as conclusively imports a nega- 
tive of the exception, as if such negative had been in express 
terms, would violate the soundest principles of construction; 
and give to the rule an universaliiy of operation which its terms 
do not import, and was never contemplated in the decisions or 
commentaries to which it owes its birth. The true rule upon 
the subject is thus given by Lord Mansfield, in Bex v. Jarvia, 
Hil. Term, 30 Geo. 11., reported in note E, in Kingy, Stone^ 1 
East, 644, '^ where exceptions are in the enacting part of a law, 
it must appear in the charge, that the defendant does not fall 
within any of them." And in Spiers v. Parker^ 1 T. R. 141, 
** the plaintiff must aver a case, which brings the defendant 
within the act." To sustain the doctrine contended for by the 
appellant — ^if a statute were passed, making ''the malicious 
killing of cattle, except horses," a felony: and an indicti^^ent 
charged the malicious killing of a cow, it would be defective, 
unless it negatived the exception, by stating that the cow was 
not a horse. An allegation so useless, not to say absurd, can 
not be required by any technicaUiy, either in civil or criminal 

But it is urged by the counsel of the appellee, that the court 
can not judicially know what a billiard table is, or that it is not 
the table at which the game of faro is usually played. To such 
a proposition we can not yield our assent. We know of no 
recognized presumption, either of law or fact, that imputea to 
the court an ignorance of a matter, like the present, of smoh 
notoriety as to be within the knowledge of the conununity at 
large. And we feel perfectly warranted in assuming to our- 
selves such a knowledge upon the subject, as enables us to de« 
clare that, in excepting billiard tables, the legislature did not 
design to authorize their being kept for the playing thereon of 
the game of faro for money (the authority so to use them being 
a corollary of the doctrine contended for by the appellee); but 
that the moment they are so appropriated, they, ipsofacto^ pro 

Dec. 1841.] State v. Prick 88 

Jtac vice, lose the immanities conf eired on them by the excep- 
tion; and cease to be billiard tables in the eye of the law. 
When, therefore, the charge in the indictment demonstrates that 
the gaming table complained of could not be a billiard table, 
was it not saperflnous to have added an allegation to that 

The objection taken to the indictment, that it does not describe 
the offense with sufficient certainty and conf ormiiy to the lan- 
guage used in the act of assembly, can not be sustained. The 
offense is charged in the very words of the act of assembly, by 
which it is created, with the additional words, '' called a faro 
table," which detract nothing from the sufficiency of the de- 
scription of the offense, otherwise set forth in the indictment. 
The prohibition in the act of assembly, is the keeping of a gam- 
ing table, at which the game of faro, equality, or any other 
game of chance shall be played for money. The charge in the 
indictment is, that the accused " unlawfully did keep a certain 
gaming table, called a faro table, at which said gaming table, 
unlawfully as aforesaid, the game of faro was then and there un- 
lawfully played for money." The only difference between the 
language of the act and that of the indictment is, thatin the lat- 
ter it is alleged that the gaming table was called a faro table. 
Such an allegation in no wise impairs the indictment, which is 
perfect without it; and even if it be not wholly rejected as sur- 
plusage, its only possible effect would be to impose upon the 
prosecution the necessity of proving, at the trial, that the gam- 
ing table complained of was called a faro table. Totally unlike 
the present is the case of Bex v. Craven, 1 Buss. & By. 14, re- 
lied on in support of this objection. There the felony, created 
by the statute, was the stealing of a bank note, or promissory 
note, for the payment of money. The charge in the indictment 
was, the stealing of '' a certain note commonly called a bank 
note." And the court say, '* that in the first special description 
of the property stolen, it being stated only to be a note, was not 
sufficient; the words of the act beiag bank note or promissory 
note for the payment of money. And that the addition ' com- 
monly called a bank note,' ' did not aid such original wrong de- 
scription.' " In the case at bar, there was no original wrong 
description which required aid from the words that were added. 
On the contrary, the indictment described with technical accu- 
racy, in the veiy language of the act of assembly, the offense 
committed, and such description was neither aided nor impaired 
by the additional words unnecessarily used. 

84 State v. Price. [HkiylaikL 

The judgment of the ooimiy court is reiaraecU ud the oanae 
ramanded thereto. 
Judgment reversed 9Ji<dL procedendo awarded. 

iKDicTHxiiTOHABazNG STATUTOBTOmura^ F6bm OF: BntBmpiMoiKw. New- 
cB» 2 Am. Deo. 381; CpmmonwedUh y. Seeuie, 4 Id. 4i6; Hem ▼. Staie^ 22 
U. 767; Pat>p2s T. .ffnocA^ 27 Id. 107; iSState ▼. ^iidbnais 29 Id« 646; OftiqimM 
T. ObmrnomoeaftA, 34 Id. 666; Skerbtm ▼. Q wm wdi M PCBftJt^ Id. 40Ql 

Judicial Nonoi or Oomen^ What Falu Wrrmv: See note to 8UU$ t. 
Jloitty, 11 Am. Deo. 779; Mamm t. ITiuA^ 12 Id. 138; Br^an ▼. BecH^t Id. 
876; ifo&y ▼. HoOe^^ Id. 342; JSoy^ ▼. Seed, Id. 482; iTcAtf ▼. 8. O. Ins. 
09.« 18 Id. 767; Flojfd ▼. /oAiM(m» Id. 266; Sknii^Uer ▼. Aimef, Id. 190| 
SooU ▼• Oblfiflum, 16 Id. 71; People ▼. HeMmer^ Id. 379; Ooani /ml Otk t. 
JWhm^ 19 Id. 649; FoMklaT. Bofkbu, 19 Id. 92; jittifo t. Cicm2^ SO Id. 
286; Ma^fori^ KewOHeatur. Riplqf9 2& Id. 176; HolmeMY. Brcmgktuhl£L 
S»i SUIeer. Stewart, 2J Id. 142; Owa^r.Bo^SZ Id. 14Zi Com. BTkqfN. 
O. T. Newport Iffy. On., 36 Id. 17L 

Oamihoi What OomnTDmi See note to AM t. BmXWt ttld. IS^ end 
■olei wfaeie thii miVJeet ii dfaoowed. 





Johnson v. Jobdan. 

[9 ICnoALV, 984.] 

Om OAjr BOS Buna ov Laitd of Anothkb to Repaib a Drain mnniag 
ban the foniMc's houae throagh the latter'a lot, where the dnia wii 
mede hy the f onner owner, who conveyed both lots by dififorent deede 
ezeoated nmnltaneonsly, without mentioning right of drainage throagh 
the lot^ and where anotiier drain from said house may, with a reasonable 
outlay, be constmeted withoat passmg throagh said lot. 

RwBT TO Birv Dbaik thbouoh Anothbb's Land can be ereated by 
aotoal oae, only where saoh ase has been adyerse, peaoeabla, oninter* 
rnpted, and oontinaed for a period of twenty years. 

TRWPA88 for bxeaking and entering the plaintiff's close. The 
fudge chaiged the jnzy that if they found that, with reasonable 
labor and expense, a drain oould be conyenientlj made, withoat 
going throagh the plaintiff's land, they should return a verdict 
for the plaintiff. There was a yerdict for the plain tiff, upon 
which judgment was to be entered if the instruction was ooneot. 
The ottier &cts appear from the opinion. 

B. B. 0urH8, for the defendant. 

BUnr and E. 2>. Sohier, for the plaintiff. 

Shaw, 0. J. In an action of trespass quare ofausuwi JregU^ 
Hbe defendant justifies under a claim of light to enter, and open 
and cleanse a dndn, running from his own house into and 
flmmgh the defendant's premises, to a sewer in Bidgway's lane. 
It he has such a light, it is a good justification; it being ad* 
mittod thttt he entered for that piupose, and did no damage 

86 Johnson v. Jordan. [Mass. 

beyond what was neoeBsazy to accomplish it. But the plaintiff 
contends that the defendant had no right to continue the drain 
through his premises; and this is the question for the consider- 
ation of the court. 

It is yery clear that whilst both estates were held by the same 
owner, he had a right to carry his drain as he pleased, through 
any part of his own grounds; and so long as both tenements 
were owned and occupied by the same person, no easement was 
created, or began to be created, in fayor of one, and operating 
as a service or burden upon the other. So long, therefore, as 
such unity of title and of possession subsists, no right of ease- 
ment is annexed to one tenement, or charged on another; and 
it is quite iTnm<LfAriA.1 how long the drain has subsisted during 
such ownership. If such an owner will convey one of the ten- 
ements and retain the other, he may grant the right of drain, 
or not, to pass with the estate conveyed, or may reserve such a 
right over the estate conveyed, for the benefit of the one re- 
tained, as he pleases. It is matter of contract, and must depend 
entirely upon the construction of the conveyance. Supposing 
this to be clear, the question recurs, what construction will the 
law put upon a conveyance, where the intention of the parties 
in this respect is not expressed in terms. 

In the first place, it is proper to distinguish an artificial gutter 
of this description, made for the purpose of draining, from a 
natural watercourse, the rights of parties to which depend upon 
a di£ferent principle. Every person, through whose land a nat- 
ural watercourse runs, has a right, pnblici juris, to the benefit 
of it, as it passes through his land, to all the useful purposes to 
which it may be applied; and no proprietor of land, on the 
same watercourse, either above or below, has a right unreason- 
ably to divert it from fiowing into his premises, or obstruct it in 
passing from them, or to corrupt or destroy it. It is insepara- 
bly annexed to the soil, and passes with it, not as an easement, 
nor as an appurtenance, but as parcel. Use does not create it; 
and disuse can not destroy or suspend it. Unity of possession 
and titie in such land with the lands above it or below it does 
not extinguish or suspend it. 

This case is also to be entirely distinguished from one where- 
in the declivity of the land and the relative position of the tene- 
ments are such, that a drain can not be formed for the benefit 
of one, without passing through the other. Such a case might 
stand upon a di£ferent ground. But in the present case, it was 
found by the jury, that a drain could be conveniently made, 

March, 1841.] Johnson v. Jordan. 87 

with reasonable labor and expense, h-om the defendant's bouse, 
without going through the plaintiff's land. 

There are some general and wellH9ettled roles of construction 
of conTeyances^ which tend in some degree to settle the ques* 
tion. The language of the deed is the language of the grantor; 
he selects the terms, and it being supposed that he will insert 
all that has been agreed upon beneficial to himself, and will be 
less careful to state fully all which is beneficial to the grantee, 
the language is to be construed most strongly against the 

Another well-settled rule of construction is, that a grant of 
any principal thing shall be taken to cany with it all which is 
necessazy to the beneficial enjoyment of the thing granted, and 
which it is in the power of the grantor to conyey. When there- 
fore a party has erected a mill on his own land, and cut an arti- 
ficial canal for a raceway through his own land, and then sells 
the mill, without the limd through which such artificial race- 
way passes, the right to use such raceway through the grantor's 
land shall pass as a privilege annexed de facto to the mill, and 
necessary to its beneficial use : New Ipswich Factory y. Baichetder^ 
8 N. H. 190 [U Am. Dec. 846]. 

Under these rules it might perhaps be held, that if a man, 
owning two tenements, has built a house on one, and annexed 
thereto a drain, passing through the other, if he sell and con- 
vey the house with the appurtenances, such a drain may be con- 
strued to be de facto annexed as an appurtenance, and pass with 
it; and because such construction would be most beneficial to 
the grantee: Whereas, if he were to sell and convey the lower 
tenement, still owning the upper, it might reasonably be consid- 
ered that as the right of drainage was not reserved in terms, 
when it naturally would be, if so intended, it could not be 
claimed by the grantor. The grantee of the lower tenement, 
taking the language of the deed most strongly in his own favor 
and against the grantor, might reasonably claim to hold his 
granted estate free of the incumbrance: Leonard v. White, 7 
Mass. 8 [5 Am. Dec. 19]; OrarU v. Chase, 17 Id. 443 [9 Am. 
Dec. 161]. 

But neither of these rules will apply to the present case, be- 
cause it appears by the deeds themselves, as well as by the other 
evidence in the case, that the two conveyances from the owner 
of the whole, under which the parties claim, were simultaneous. 
It is therefore much more like a partition between tenants in 
common, where each party takes his estate with the rights, 

88 Johnson v, Jordan. [Ma3& 

pcmlegeBy and inddents inheienily attached to it, Chan like the 
case of grantor and grantee, where the grantor conveya a part 
of his land, bj metes and bounds, and retains another part to 
his own use, and where the question is, yjcpon the terms of the 
deed, whether an easement for drainage has been granted with 
the estate conyeyed over that retained, or reserved over that con- 
veyed, for the benefit of that retained. 

In the present case, the estates were both owned and occupied 
by Mr. Thacher until the sale made to Mr. Thomdike and Mr. 
Kendall, under whom the plaintiff and defendant respectively 
derive title. Both of these deeds bear date the same day. Each 
refers to the estate described, as this day sold to the other. Both 
deeds must be taken and construed together. In the deed to 
Thomdike, an easement for a gutter was created; and in the 
deed to Kendall, the same is charged as a perpetual servitude, 
in favor of Thomdike and his heirs. The conveyance to Ken- 
dall was made upon an onerous condition never to open windows 
in any building to be erected on the premises, on the side next 
to the dwelling-house conveyed to Thomdike; a condition mani- 
festly designed for the benefit of the estate conveyed to the 
latter; and in the deed to Thomdike, this restriction upon the 
estate conveyed to Kendall is recited; intended, no doubt, to 
show that the estate to Thomdike and his assigns was thereby 
enhanced in value. The well-known maxim of construction, 
and a veiy sound one, is, expressio unius exchisu} est aUerius. 
Here was a division of these two tenements intimately connected 
with each other, vrith detailed provisions in respect of the rights 
which each should have in the other, and the duties to which 
each should be subject in favor of the other. If it was in- 
tended that one should have a perpetual right of drainage 
through the other, with a right of entry at all times to repair 
and relay such drain, especially where it is found not to be 
necessary to the enjoyment of the estate granted, it seems rea- 
sonable to suppose that it would have been expressed. As no 
such right was expressed, we are of opinion that it was not in- 
tended to be granted; and as it was not necessary to the enjoy- 
ment of the estate, and had not been de/acio annexed, so as to 
pass by general words as parcel of the estate, it did not pass to 
the defendant's grantor by force of the deed. As about ten 
years only elapsed after these conveyances, and the consequent 
division of the two tenements between different proprietors, 
before the grievance complained of, it is very clear that the de- 
fendant derived no right to the easement by actual use and en- 

March, 1841.] Briggs u Parkman. 89 

joymeni. Sach a right in the estate of another can be created 
bj actual use, only when such use has been adTerse, peaceable, 
and nnintermped, and continued for a period of tweniy years. 
Judgment on the yerdict for the plaintiff. 

P MBUMPTio y oy GsAirr ov Easkuemt: See Swm v. DcaAs, 84 Am. Dea 681; 
ITorraA t. Rkoada^ 90 Id. 274, note 278, and cases there cited and collected. 

THSFBiNGiPALaASS isoiTBD In Cottier V. FHereBy 7 Gray, 20, as an instaMcein 
which it wai found that the aotaally eausting drain was not necessary for the 
me of the tenement for which it was daimed; in Ccurbrey y. WUUs^ 7 Allen, 
868, to the point that if a person, who, owning two tenements, lias bnOt a 
hooae on one, and annexed thereto a drain passing through the other, conVey 
thehooM with the appurtenances, such drain may be construed to be defaeto 
annexed, and pass with it; whereas, if he were to convey the lower tenement, 
still owning the upper, it might be considered that as the right of drainage 
was not reserved in terms when it naturally would be if so intended, it could 
not be claimed by the grantor; in RandaU ▼. MeLaugMin, 10 Id. 868, to the 
point that there is not an easement by necessity where an equally beneficial 
dfain coold be bnUt on the plaintiff's own land, with reasonable labor and 
eipense; in PhUbrick v. Ewvng^ 97 Mass. 135, to the point that the grant of 
a principsl thing carries all things necessary to the use and enjoyment of the 
tldng granted, that the grantor had power to convey; in Hapgood v. BrovoUf 
102 Id. 454, that doubtful terms in a deed are to be construed most strongly 
in favor of the grantee; in RaindaU v. SartderwUf 111 Id. 120, that no ease- 
ment of light and air exists in a case where windows, though convenient, are 
not necessary to the enjoyment of the estate granted. 

Bbiogs v. Fabeman. 

[a linoAur, 258.] 

Bacninos, by Vbnbob, of Pobsission of €k>ODS, aftsb Sale, is only 
presnmptive evidence of fraud, which may be repelled by other testimony. 

MoBiaAOB OF Tkadsb's Stock or Goods 19 not Fbaudulekt peb as, 
although it provides that the mortgagor may retain possession, and make 
nles in the usual course of business, applying the proceeds thereof to his 
own use, where he, at the same time, promises, if he should make large 
sales^ to replace the goods so sold, and where the property mortgaged is 
more than sufficient to pay the debt. The presumption of fraud arising 
from such a transaction may be ropelled by satisfactory evidence. 

Pbopbbtt of Dxbtok which Vxsts in his AssiONBB UNDSB Stat. 1838, 
a 163, IS that only which he had at the time of the first publication of 
the notice of issuing the warrant to the messenger. And theref(»e, 
where a mortgage was made by the debtor, which was recorded before 
that time, bat after the assignment was made, it will be good as against the 
other creditors, and the mortgagee will h(dd the property mortgaged, as 
agtinst the assignee. 

AnsAL from a decree of a master in chanoexy. A Terdiot waa 

90 Briogs v. Pareman. [Maaa. 

taken for the appellee, and the questions of law resenrecL The 
other facts sajfioientlj appear from the opinion. 

BarileU, for the appellant. 

E. Blake, for the appellee. 

WiLDB, J. This is a case of appeal from an order or decree 
of a master in chancery, made in pursuance of the third section 
of Stat. 1838, c. 168, entitled '* an act for the relief of insolvent 
debtors, and for the more equal distribution of their effects." 
The general question to be decided is, whether the mortgage 
deed to the appellee from the insolvent debtor, made before his 
application to the master in chanceiy to be allowed to take the 
benefit of said act, is a valid deed in law, or whether the title 
to the goods mortgaged passed by the assignment of the debt- 
or's property to the appellant, the assignee, notwithstanding the 

At the trial of the cause in this court, it appeared that it was 
agreed between the parties to the mortgage, that Loring, the 
said debtor, should mortgage to the appellee the principal part 
of his stock in trade, and that the mortgagor should continue 
in possession of the goods mortgaged, and make sales of the 
said property in the ordinary course of business, and apply the 
proceeds to his own use: he at the same time representing, 
that he should not at that season make any large sales, and if he 
should, that he would add to the amount of the mortgagee's 
security by other property. 

The counsel for the assignee maintains, that this agreement 
vitiated the mortgage, and rendered it void as to the creditors 
of Loring; that such an agreement is fraudulent in law, or is 
conclusive evidence of fraud, not open to explanation, however 
fair and honest the intention of the parties may fiave been. In 
regard to the objection in relation to that part of the agreement 
respecting the mortgagor's continuing in possession of the mort- 
gaged property, the law, as it is considered in this commonwealth, 
has long been well established, and it is no longer open to dis- 
cussion. It has always been held by this court, that where a 
vendor continues in possession of the goods sold, after the sale, 
with the consent of the vendor, such a possession is only a 
badge or presumptive evidence of fraud, which it is proper to 
submit to a jury, and which may be explained, and the infer- 
ence of fraud repelled by other evidence. On this question 
there have been many conflicting decisions in other courts; but 
the question is now settled in the state of New York, in con- 

March, 1841.] Briqqs v. Parkman. 91 

tormibj with the doctrine as held in this commonwealth; and 
such appears to be the doctrine as now held in England: [15 
Am. Dec. 269]; Bissell v. Hopkins ^ 3 Cow. 166; Seward v. Jack- 
80fiy 8 Id. 406; Kidd t. Bawlinsony 2 Bos. & Pul. 69; Martindale 
V. Booth, 3 Bam. & Adol. 498; Hinde v. Longworth, 11 Wheat. 
199; Arundell y. Phippa, 10 Yes. 146; LaUmer y. Batson, 4 Bam. 
k Cress. 662. 

In the case of Bissell y. Hopkins, it was settled, after an ex- 
amination of the principal authorities, that the possession of 
goods continuing in the yendor after the sale was only presump- 
tiye eyidence of fraud, which might be explained by other eyi- 
dence. And we do not understand the counsel for the assignee 
to deny the doctrine thus established; but he relies on the other 
part of the agreement, which, he insists is not merely a badge of 
fraud, but that it yitiated the security and rendered it yoid per 
«e as to creditors. But we consider the agreement as to the 
mortgagor's continuing in possession of the goods mortgaged, 
after the mortgage, and the permission to sell a part of the 
property, and to apply the proceeds to the mortgagor's own use, 
as eyidence of the same character, and as tending to raise the 
same presumption; the one part of the agreement may raise a 
stronger presumption of fraud than the other, but this is a dif- 
ference only in the weight of the eyidence. Both parts of the 
agreement tend to proye a fraudulent intent, but both may be 
explained consistently with honest intentions and fair dealing; 
and if they may be so explained, and the inference of a fraud- 
ulent intent repelled, there seems to be no reason for excluding 
the explanatory proof. It has been argued, that the necessary 
consequence of the agreement was to deceiye and defraud the 
creditors of the insolyent debtor; and that a party must always 
be presumed to haye intended that which necessarily must fol- 
low from his act. But it was not a necessary consequence of 
the agreement that creditors would be defrauded; and eyen if 
that were the necessary consequence of the agreement, it would 
not follow that such a presumption might not be rebutted by 

The question to be decided is, whether the mortgage deed was 
giyen with the fraudulent intent to coyer the properly, and thus 
to delay or defraud creditors; and this question is to be deter- 
mined by the whole eyidence, presumptiye and explanatory. In 
Oadogan y. Kennett, Cowp. 432, Lord Mansfield says, that '' the 
statute does not militate against any transaction bona fide, and 
where there is no imagination of fraud. And so is the common 

92 Bhiggs v. Pareman. [Maaa 

law. The question, therefore, in oyery case is, whether the act 
done is a bona fide transaction, or whether it is a trick and con- 
trivance to defeat creditors." 

The next question to be determined is, whether upon the 
whole CTidence it appears, or may be reasonably presumed, that 
the mortgage in question was made with any fraudulent intent 
to defeat or delay creditors. This question is submitted to the 
court by the agreement of the parties. 

If the mortgage deed to the appellee had been an absolute 
sale and conyeyance, the agreement that the vendor should be 
allowed to sell any part of the properly, and to appropriate the 
proceeds to his own use, would be strong presumptive evidence 
of fraud, and for aught that appears would be conclusive. But 
as the conveyance was only by way of securiiy, and as the goods, 
according to the estimated "^ue, were more than sufficient to 
secure the moii^gage debt; and as it was agreed by the mort- 
gagor that he would not make any large sales, or if he did, that 
he would add to the amount of the mortgagee's securiiy by other 
property — ^that he would pay half the note in thirty days, and 
at the end of thirty days the mortgagee should have a right to 
examine the amount of sales — ^we are of opinion, taking into 
consideration all these circumstances, that there is no reason for 
the inference of fraud arising from the agreement, but that it is 
repelled by satisfactory evidence. 

The next question raised by the report of the evidence depends 
on the construction to be given to the first, fifth, and sixth sec- 
tions of the insolvent law: Stat. 1838, c. 163. The first section 
provides, that the messenger shall take possession of all the es- 
tate, real and personal, of the debtor, excepting such as maybe 
by law exempted from attachment; and this was done on the 
fifteenth of July, at thirty minutes past one o'clock, and before 
the mortgage to the appellee was duly recorded. The mortgage 
had been before recorded in Boston, but was not recorded in 
Boxbuiy , where the mortgagor resided, until thirty minutes past 
three o'clock of the same fifteenth day of July. By the fifth 
section, it is provided that the judge of probate shall assign and 
convey to the assignees '' all the estate, real and personal, of the 
debtor, excepting such as may be by law exempted from attach- 
ment; which assignment shall vest in the assignees all the prop- 
erty of the debtor, both real and personal, which he could by 
any way or means have lawfully sold, assigned, or conveyed, oi 
which might have been taken in execution on any judgment 
against him, at the time of the first publication of the notice of 

Jfarch, 1841.] Bbigqs v. Pabkhan. 93 

iflBuing the warrant" to the meaaenger. This publication of no- 
tice by the messenger was made on the morning of the sixteenth 
of July, the day after the appellee's mortgage had been duly re- 
corded. By the sixth section, the messenger is required, as soon 
as may be after his appointment, to demand and receiYe from the 
debtor, and from all other persons, all the estate in his or their 
possession respectiTely, which by the previous sections is ordered 
to be assigned. 

lliere appears to be no difficulty in ascertaining the true mean- 
ing and construction of these sections, so far as they relate to 
the question under consideration. There is an apparent dis- 
crepancy between the first and the sixth sections, the first re- 
quiring the messenger to take all the debtor's properly, excepting 
such as may be by law exempted from attachment, and by the 
sixth section he is to take all the debtor's property which was 
liable to be assigned. But this di£Eerence in the language of the 
two sections is not material; it must, we think, have been in- 
tended by the sixth section to limit the generality of the proyia- 
ion in the first section, which thus limited corresponds with the 
proyision in the fifth section. But however this may be, the 
question to be determined depends on the construction of sec- 
tion five, in regard to which there can be no doubt. The lan- 
guage is express, and limits the assignment to the debtor's prop- 
erly at the time of the first publication of the notice of issuing 
the warrant to the messenger. At that time, the appellee's mort- 
gage had been recorded according to law, and consequentiy the 
property in dispute could not vest in the assignee. 

It is howeyer denied by the counsel for the assignee, that the 
mortgage deed has been recorded according to law; because the 
mortgagee had notice, before he recorded his deed, of the appli- 
cation of the mortgagor to be allowed to take the benefit of the 
insolyentlaw, and of the proceedings had thereon, and that the 
messenger had taken actual possession of the goods mortgaged. 

If the mortgage had been made after such notice, there would 
be great weight in the objection; but the mortgage deed was 
made before these transactions, was a bona fide conyeyance, and 
unquestionably the mortgagee had a right to complete his titie. 
At the time the deed was recorded, the assignee had obtained no 
title; nor does the titie since obtained reach back to the time of 
the record So that the case of Cushing y. Eurd, 4 Pick. 253 
[16 Am. Dec. 335], is in point, and is conclusiye. Indeed there 
does not appear to be either law or equity in fayor of the claim 
of the appellant in behalf of the creditors. The appellee paid 

94 Bbiqgs v. Parkman. [M 

to the debtor over five thousand dollars, which has increased the 
amount of the debtor's assets, to be distributed among his cred- 
itors, and they claim also the mortgaged property, leaving the 
mortgagee to take his share with the other creditors, although 
he never trusted to the personal credit of the mortgagor. This 
we think is not an equitable daim, and to avoid it the mortga- 
gee had a perfect right to record his mortgage. If this mort- 
gage had been given to secure a prior debt, the equity of the 
case would have been different; and if it had been so made by 
the debtor in contemplation of his becoming insolvent, and of 
obtaining a discharge under the provisions of the insolvent law, 
the mortgage would be void as to creditors, by the tenth section 
of the act. But by a proviso, this clause is not to apply to any 
security given for the performance of any contract, where the 
agreement for such security is part of the original contract, and 
the security is given at the time of making such contract. This 
mortgage therefore would have been a valid security, although 
it had been made by the debtor, in contemplation of insol- 
vency, and of obtaining a discharge from his creditors, unless 
that intention had been known by the mortgagee. And this 
provision seems to be founded on equitable principles and sound 
policy. Without this proviso, no one could rely on his secure 
ity, however fairly and honestly it had been obtained. 

Upon the whole matter, therefore, we are of opinion that the 
decision of the master weui correct, and must be a£Brmed. 

Rbtbntiok of Possession bt Vendor, Effbot of: See Richmond y. Orudup^ 
83 Am. Dec. 164, note 165, where the cases on the sabject are collected. 

Thb principal oass is otted in Andrews v. Sovihmeh^ 13 Mete. 536, to the 
point that the first publication of notice to creditovs fixes the time when an 
attachment is dissolved; in Jones v. Jlugg^ord, 3 Id. 518, in Codman v. Free- 
man, 3 Cash. 309, and in Winsw v. McLeUan, 2 Story, 49S, to the point that 
a power to sell and purchase other property contained in a mortgage does not 
necessarily render snch mortga^ void; in Bingham v. Jordan, 1 Allen, 374, to 
the point that if a mortgage is not recorded until after the first publication 
of notice of issuing a warrant in insolvency, the title of the assignee will pre- 
vail; in Howe v. Bartlett, 8 Id. 21, to the point that the mortgagee ia entitled 
to the possession of property mortgaged, as against the assignee; and in 
Sleeper v. Chapman, 121 Mass. 409, to the point that a provision in a mort- 
gage that the mortgagor may use and enjoy the property until breach of con- 
dition does not justify the charge that the assignee of the mortgage had notice 
that it was fraudulent; and in Oriental Bank v. Haekine, 3 Mete. 838, that 
retention of possession by vendor after sale is not, in Massachusetts, consid- 
ered conclusive evidence of fraud. 

liarch, 1841.] Brooks v. White. 95 

Bbooes v. Whepb. 

p MSTOAZ.F, 388.] 

Whibi Gbxditob Rbohyes in Fdll SATiarAcrnoN of hib Dxbt, the note 
of a third person, for a sum less than is due to him, it ii a good aooord 
and satisfaction to bar a suit for the balance, and so is the reoeiying of a 
lees sam than is due in satisfaction of the whole, before the debt is due. 

Pabol Eyidrngb is Admissiblb to Explain a Rbobift, and to show to 
what demands it was meant to apply. 

Aa auiip aiT on a promissoij note signed hj White ft Oo., and 
payable to the plamtifib. Downing and Wright were former 
partners with White, the three constituting the firm of White Sc 
Co. The defense was an accord and satisfaction, and at the 
trial the defendant introduced the deposition of Downing, in 
which he deposed that before the note in suit fell due, he agreed 
with the plaintiffs to indorse to them two notes of third persons 
which he held, amounting to a less sum than the amount of the 
note in question, but which the plaintiffs then agreed to accept 
in full of all claims and demandis; that he thereupon indorsed 
and the plaintiffs accepted the notes. They gave a receipt, but 
Downing seems to have lost it. The jury found for the defend- 
ant, and the plaintiffs moved for a new trial, on the ground of 
misdirection. The other facts appear from the opinion. 

Grovminahield, for the pkdntiffis. 

B. B. GufUs, for the defendant. 

Dewet, J. The plaintiffs contend that the eyidence, offered 
to sustain the defense of an accord and satisfaction of the note 
upon which this action is instituted, can not avail the defend* 
ant, because by his own showing it weui only the payment and 
acceptance of a less sum than the amount due on the note. The 
general principle, that the acceptance of a less sum in money 
than is actually due can not be a satisfaction and will not operate 
to extinguish the whole debt, although agreed by the creditor 
to be received upon such condition, seems to be recognized in 
books of unquestionable authority. The reason of the rule is, 
as stated by Lord EUenborough, in FUch v. SiUton, 5 East, 232, 
that there must be some consideration for the relinquishment of 
the excess due beyond the sum paid; something to show a pos- 
sibiliiy of benefit to the party thus relinquishing a legal right; 
otherwise the agreement is nudum pactum. So in PinneVa case^ 
5 Co. 117, where it was resolved that payment of a less sum, on 
the day, in satisfaction of the greater, can not be a satisfaction 

96 Bbooks v. Whttk [MaaB. 

of the whole, because it appears to the judges that by no pos- 
sibiliiy a less sum of money can be a satisfaction to the plaintiff 
for a greater sum. But the gift of a horse or the like, in satis- 
faction, is good; for it shall be intended that the horse might 
be more beneficial to the party than the money, or be would not 
have accepted it in satisfaction. 

The foundation of the rule seems therefore to be, that in the 
ease of the acceptance of a less sum of money in discharge of a 
debt, inasmuch as there is no new consideration, no benefit ac- 
cruing to the creditor, and no damage to the debtor, the cred- 
itor may Tiolate, with legal impunity, his promise to his debtor, 
however freely and understandingly made. This rule, which 
obviously may be urged in violation of good faith, is not to be 
extended beyond its precise import; and whenever the technical 
reason for its application does not exist, the rule itself is not to 
be applied. Hence judges have been disposed to take out of 
its application all those cases where there vms any new consid- 
eration, or any collateral benefit received by the payee, which 
might raise a technical legal consideration, although it waa 
quite apparent that such consideration vras far less than the 
amount of the sum due. Thus, where any other artides than 
money are received and agreed to be accepted in full satis&ction 
of a debt, the court will not estimate their value in money's 
worth, but hold the consideration to be good, and the promise 
to discharge the entire debt a valid contract. This distinction 
was recognized in the resolutions in PinneVa case, already cited. 
In Boyd v. Hitchcock, 20 Johns. 76 [11 Am. Dec. 247], the re- 
ceiving of a note of hand for a less sum than veas due, with the 
name of another person as promisor or indorser, where the 
creditor agreed to accept the same as a satisfaction of the whole 
debt, was held a valid discharge, aa an accord and satisfaction. 
In that case, the court say, '* here was a beneficial interest ac- 
quired, and a valuable consideration received by the plaintiflB, 
when they agreed to accept less than their whole demand.'' The 
same rule was adopted in Kellogg v. Richards, 14 Wend. 116, 
where it was held Ihat if a creditor, on a compromise with his 
debtor, accept the note of a third person for a less sum than 
the debt due to him, in full payment of such debt, the accept- 
ance of such note may be pleaded as an accord and satisfaction 
in bar of an action to recover the balance due beyond the 
amount thus received. Nelson, J., says, ''it is true there does 
not seem to be much if any ground of distinction between such a 
case and one where a less sum of money is paid and agreed to 

March, 1841.] Brooks v. White. 97 

be accepted in fall, which would not be a good plea. But the 
distinction is as sound aa that which exists between the cases of 
receiving a less sum of money, and an article of property just 
half the value of the sum due, which would constitute a per- 
fect defense. The rule, that the payment of a less sum of money, 
though agreed to be received in f uU satisfaction of a debt ex* 
ceeding that amount, shall' not be so considered in contempla- 
tion of law, is technical, and not very well supported by reason. 
Courts therefore have departed from it on slight distinctions." 

But there is another principle, which the facts in the present 
case authorize us to apply, which is equally fatal to the main- 
tenance of the technical objection relied on by the plaintiffs. 
The same ancient authority which declares that the payment 
and acceptance of a less sum, on the day the debt becomes due, 
in satisfaction of a greater, is no defense beyond the amount 
paid, also declares that the payment and acceptance of a less 
sum before the day of payment has arrived, in satisfaction of 
the whole, would be a good accord and satisfaction; for it is 
said, peradventure parcel of the sum before the day it fell due 
would be more beneficial to him than the whole at the day; and 
the value of the satisfaction is not material: Finnel's case, 5 
Co. 117. And the same doctrine is found in Co. Lit. 212 b, 
where it is said, " if the obligor pay a lesser sum, either before 
the day, or at another place than is limited by the condition, 
and the obligee receiveth it, this is a good satisfaction:" Yelv. 
(Amer. ed.) 11 a, note. The transfer of the notes by Downing 
was therefore a sufficient consideration for a promise by the 
plaintiffs to receive them in full discharge of the note; and the 
only remaining inquiry is, whether in its terms the agreement 
was broad enough to constitute an accord and satisfaction, and 
a discharge of all the parties to the note, or whether it was re- 
stricted to Downing alone. The receipt given by the plaintiffs 
has been casually lost; but evidence was offered to the jury 
tending to show that the receipt given to Downing was in its 
terms amply sufficient to embrace the note, and without any 
reservation, on the face of it, or any right to collect any part of 
it of the other promisors. The court left it to the jury to find 
whether the receipt was intended as a discharge to Downing 
only, or to all the promisors; and the plaintiffs now insist that 
this was erroneous, and that it was not competent for the jury 
to pass upon the intent of the parties as to the effect of this 
agreement. As it seems to us, this objection can not avail the 
plaintiff. It was not submitting to them the construction of a 

Am. Dbo. Vol. XXXVII— 7 

98 Ferby v. Harrington. [Masa 

written instrument. Their first inqtiiiy was, whether the plaint- 
iffs had given a discharge of this demand. If that discharge 
was in full of all demands, as the eyidenoe offered tended to 
show, it w£Ui competent to inquire what demands were the sub- 
ject-matter of the adjustment, and were understood by the par- 
ties to be embraced in the receipt; whether the indiyidual lia- 
bilities of Downing only, or the liabilities of the late firm of 
White & Go. , of which firm Downing was a member. 

The ca^ of receipts is an exception to the general rule thai 
oral testimony is not admissible to contradict or vary a written 
contract. They may always be explained by oral testimony : Stacks 
pole y. Arnold f 11 Mass. 27 [6 Am. Dec. 150]; Jokmon y. John- 
9on, 11 Id. 363; Harden y. Gordon, 2 Mason, 541; BoUvns y. 
Dyer, 4 Shepley, 475. 

Judgment on the yerdict. 

RBCBiyiKo Note of Thibd Psbsok, Whbn Patmxnt: See note t» 
HutehiM V. OleuU, 24 Am. Deo. 640, where the cues in this aeries on this 
subject are oollected. 

Payment of Part or Debt is not a satisfaotion of the whole, although it 
is 80 received: See ShoM v. Clark, 27 Am. Dec. 578, note 579, where other 
cases in this series are oollected. 

Rbceifts may be Explained or Contrabictbd by Parol EymsNCis 
See Bridge v. Chray, 25 Am. Dec. 358, note 363, where other cases on this sub- 
ject are collected; Bard v. Wood, 3 Meto. 75; Briggs v. Call, 5 Id. 506; Wed- 
digeii v. BotfUm EUutic Fabric Co,, 100 Mass. 424, all citing the principal case. 

The principal case is cited in Harriman v. Harriman, 12 Gray, 342; 
TwUchell v. Shaw, 10 Gush. 48; WcUan v. Kirby, 99 Mass. 3, to the point that 
acceptance of a less sum of money than is due can not be a satisfaction; in 
Bowker v. ChUds, 3 Allen, 436, to the point that payment of less than the 
amount of the debt before the day it l)ecomes due is a good satisfaotion in 
law; in Perkins v. Lockwood, 100 Mass. 250, u> the point that the giving of a 
note or collateral promise of another person will support an agreement to 
accept a less sum than is actually due; and in Simmons v. Almy, 103 Id. 35» 
to the point that the rule that a creditor can not bind himself by agreement 
to receive less than the whole of his debt in satisfaction thereof, is nevar 
enforced where the technical reason on which it is founded does not exist. 

Pebbt v. Harrington. 

[3 HXTOALF. 868.] 


IVhbrb, in Assumpsit, Aots Stipulated to be Done are SEysRAL, thougb 
stipulated for by one contract, an action lies for each sucoeesiTe breach. 

Acceptance of Order to Pat Certain Sum out of First Monet belong- 
ing to the drawer, which the acceptor should receive from a certain fund^ 
binds the latter to pay on reasonable demand, from time to time, as the 
money is received by him. And judgment against the acoeptor for on» 

Marcb, 1841.] Perbt v. Habkinqton. 99 

Iveach of bis oontnet, in not paying a pari, is not a bar to another action 
en another breach, in not paying on demand a farther nun reoeiTed by 
him after the commencement of the first action. 

AflBUMHUT on the following order, which had been accepted 
bj the defendants: " Boston, April 8, 1837. Messrs. Harring- 
ton & Co. : Please pay Mrs. C. Peny two hundred dollars out of 
{he first money belonging to me, whioh you may receiye on ae* 
eoont of the Eastern Star, and oblige your ob't serv't. D. H« 
Oreeig." The other facts sufficiently appear from the opinion. 

BewaU, for the plaintiff. 

Sarrmgkm, for the defendants. 

Shaw, 0. J. The only question of importance in the present 
case is, whether the judgment formerly rendered for the plaint- 
iff, on this same acceptance, is a bar to the present action. It 
is insisted that the acceptance is one single entire contract; and 
if it is so, it is dear that one judgment upon it is a bar to any 
other action. 

Formerly it was held, that there could be but one action on 
•one contract; and where the contract was to pay by installments^ 
and an action was brought for breach of the contract, by the 
failure of payment of one installment, it was a question whether 
the whole amount, including installments not yet due, should 
be given in damages, or whether the plaintiff, if he thought fit 
to sue before all the installments were due, must lose the amount 
of those not due. One or the other result seemed to be the 
necessary legal consequence of regarding the contract as singla 
and entire. 

But it has long been held, that in assumpsit, if the acts stipu-^ 
lated to be done, though all stipulated by one contract, are 
several, an action will lie for each successiye breach. This doc- 
trine was considered and illustrated in a recent case; and it is 
therefore not necessary to recapitulate the positions taken and 
the authorities cited: Badger v. TUcomb, 15 Pick. 409 [26 Am. 
Dec. 611]. 

The question is, whether, by a fair construction, the accept- 
ance in the present case is an undertaking to perform one duty 
at one time, and then to terminate; or whether it is a stipulation 
to do more than one. It is an acceptance and undertaking to 
I>ay the plaintiff two hundred dollars out of the first money be- 
longing to the drawer, which the acceptor should receiye on 
account of the Eastern Star, a newspaper establishment, trans- 
ferred by the drawer to the acceptors. 

100 Atkins v. Bordman. ptlass. 

It is obTioufily a conditional undertaking. Was the whole 
obligation to be void, if the amount collected should not reach 
two hundred dollars, and all right to demand anything sus- 
pended, until the full sum should be received? We can not 
consider this the true meaning. It appears to us that the inten- 
tion was, that the acceptors should pay to the amount of two 
hundred dollars, if so much should be collected; otherwise, such 
part of the sum as should be collected. This seems to have been 
the construction adopted by the acceptors, by their paying a 
part, and yielding to a judgment for a part. But if payment 
was not to be suspended until the full two hundred dollars 
should be collected, and as it might never be collected, then the 
conclusion of law must be that such part as should be collected 
should be paid in reasonable time, if requested. No other 
reasonable construction can be put upon it. It is a general rule, 
that when a duty is to be done, and no time fixed, it must be 
done in a reasonable time. Taking this legal conclusion, in 
connection with the terms of the acceptance, it is an undertak- 
ing to pay out of a particular fund, from time to time as received, 
on reasonable request. The payment, therefore, of part of the. 
amount does not bar the claim for the balance, when collected; 
and we think the contract, being to pay from time on request, 
is a contract to be performed at different times, and therefore a 
judgment for one breach in not paying a part is not a bar to an 
action on another breach, in not paying on demand the balance 
admitted to have been collected. The court are therefore of 
opinion that the plaintiff, on the case stated, is entitled to re- 
cover judgment for the balance due on the acceptance. 

Separate Actions when mat be Bbought on Sams Contbaots 8m 
BendemagU v. Cocks, 32 Am. Deo. 448, note 464. 

Atkins v. Boiudmak. 

r2 MKrOALT. 467.] 

Whxbi LANOtrAOB OF Deed is Defective or Ambiguous, it is compe- 
tent, in order to show what the parties probably meant, to prove tht 
local position, the relative situation of the estate granted and of that i«< 
served, and also the manner in which the grantor himself osed it when 
owner of the whole. 

Whebb Obamtob Bbsebyes Riort of Inobess Ain> EaBEas thbouoh a 
Gatb or passage way aboat five feet in width, for carrying and rooarry* 
ing wood or any other thing to and from an adjoining house of the grantor, 
this amoants to the reservation of the right of a suitable and oonvenieot 

March, 1841.] Atkins v. Bordman. 101 

for the pnrpooes indicated, but does not definitely determine the 
eiact width of the passage way. And if the grantor and those who 
daim under him have used such passage nearly in conformity with the 
terms of the reservation, they will be deemed to have held under the 
reservation, not adversely thereto, aud they will be limited by its terms. 


still all the beneficial use which he can have consistently with the other's 
enjo3rment of such easement. 

Whkbb Dimsnsions of a Wat Reserved are not Expressed, but the 
object of the reservation is expressed, the dimensions must be inferred 
to be such as are reasonably sufficient for the accomplishment of that ob- 

Owner of Land over which his Grantor Reserved a Passage Wat 
may cover in that way by building over it, provided he leave a space 
high and wide enough, and sufficiently well lighted to answer reasonably 
well the purpose for which such passage way was reserved. 

Where Qrantor in Ck}NVETiNO Tenement Adjoining his own expressly 
stipulates that his grantee shall not erect any building nearer to the 
grantor's than a certain prescribed limit, such stipulation will not prevent 
the grantee from building A toaement higher than the old one, although 
by so doing he may lessen. thib ^mour^^.of light ihjl/air c3>miQg.^^the 
windows of his grantor. '- c ; *,- • ; ;*•; -•" 

Tbespabs on the case. The facts sxifflcienily appear from ilie 

S, Hubbard and W, PhiUips, for the defendants. 

Fletcher and Choate, for the plaintiff. 

Shaw, 0. J. This cause, or rather several causes groTnng out 
of the same subject of controversy, have long been before the 
court; and it is to bo regretted that all points of dispute, in re- 
gard to the relative rights of the parties, have not yet been ad- 
justed. Several questions have heretofore been decided, and the 
parties have acquiesced in the decision, and adjusted their build- 
ings in conformity with them: 20 Pick. 291.^ 

The main question which now remains for consideration be- 
tween these parties, is, whether the defendants had a right to 
erect a building over the passage way which, it is conceded, the 
plaintiff has a right to have, use, and enjoy, on the southerly 
side of the defendants' land. It appears tiiat heretofore both of 
these tenements belonged to one person, and of course neither 
estate was then subject to any easement for the benefit of the 
other; because the owner, as the exclusive proprietor, might 
build upon any part, or use and appropriate any and every part 
of the estate at his own pleasure, as his own sense of his inter- 
est and convenience might dictate. It is obvious, that so long 

1. Atkifu T. BordMon. 

102 Atkins v. Bordman. [Maaa. 

as two tenements remain in the estate of the same owner, no 
right of easement can be created by use, howeyer long contin- 
ued; because such use can not be adverse. Whenever therefore 
such proprietor conveys away part of the estate so situated, he 
may create, annex, and convey with the estate granted, such 
rights of way over his other estate retained, or other easements 
therein, as he may think fit; and also he may reserve out of the 
estate granted, and annex to his own estate retained, such ease- 
ments as he may deem proper. And the acceptance of the deed 
by the grantee, whilst it gives him the benefit of the easements 
granted, subjects the granted estate, both in his own hands, and 
in those of all others who may come in under him, to the ease- 
ments reserved. It stands, therefore, upon the ground of con- 
vention, between those who have a disposing power. 

There are cases, indeed, in which it is held, that long use may 
be given in evidence to establish the right of the grantee, in such 
case, to easements in and over the^q^tate of the grantor; but on 
a veQT . difierQXit.prmejpIe; from *Uiat; oil which prescription or 
presomed .gi^t^ h *foujided. * Hie right claimed depends on 
-^praiit'; but the question often arises, from the ambiguity, brev- 
ity, or uncertainty of the descriptive words used, what was the 
extent of such grant; in other words, what was the intention of 
the parties in making and accepting the grant. In ascertaining 
this intent, several rules of exposition are adopted, founded 
upon experience, to enable courts to determine, or to approxi- 
mate to such meaning and intent. It is a rule, that ^e lan- 
guage of a conveyance shall be construed most strongly against 
the grantor; because it is his act, and the language that of his 
choice or dictation. Again; a grant being made for a valuable 
consideration, it shall be presumed that the grantor intended to 
convey, and the grantee expected to receive, the full benefit of 
it, and therefore that the grantor not only conveyed the thing 
specifically described, but all other things, so far as it was in 
liis power to pass them, which were necessary to the enjoyment 
of the thing granted. Thus the grant of a mill actually driven 
by water, though not described as a water-mill in the deed, car- 
lies with it a right to the stream which supplies the mill, al- 
though it comes to the mill wholly through other land of the 
grantor. He can not divert it, and thus derogate from the ben- 
eficial eflfect of his grant. The grant of a messuage or tract of 
land, with no access to it but over other land of the grantor, 
IS by implication a tacit grant of a convenient right of way to it 
over such other hind. But there is another rule in ascertaining 

March, 1841.] Ateiks v. Bobdman. 103 

ihe meaning of parties where the deed is edlent, or the language 
defectiTe or ambigaous, and one to which we more particularly 
i)efore alluded; and it is this: that it is competent, in order to 
show what the parties probably meant, where the language is 
not fully clear and unambiguous, to prove the local position, the 
relatiye situation of the estate granted, that of the estate re- 
served, and also the manner in which the grantor himself had 
used it, when owner of the whole. Such evidence of use of par- 
ticular ways over one estate, in the occupation and enjoyment 
of the other, may tend to show what was necessary, or useful 
and convenient in this respect, and so considered by him who 
had a power to use both as he pleased, and therefore tends to 
show what, by necessary or reasonable implication, was in- 
tended. It is veiy clear that a grantor, by unequivocal words, 
may convey one estate by definite description, and create and 
annex thereto an easement in his own other land. This may 
also be done by necessary or reasonable implication, if the in- 
tent so to do can be inferred. Thus, if one grants an estate, 
with all the privil^fes and appurtenances, and there be a right 
of way over a third person's estate, that right of way passes. 
Indeed, such right of way passes as incident, though "ap- 
purtenances'' are not expressed: Kent v. WaUe, 10 Pick. 138. 
But if there be no such right of way, which may be legally and 
technically " appurtenant," but the grantor has commonly used 
a way thereto over his other land; in order to give effect to the 
manifest intent, it may be construed to pass a right over such 
land, not as an appurtenance before existing, but as an ease- 
ment created by the deed itself, and annexed to the estate 
granted. So if one grant an estate, with the ways and other 
easements actually used and enjoyed therewith, evidence aliunde, 
by parol or otherwise, may be given to prove that a particular 
way was then in use by the grantor; and then it is held to pass 
as parcel of the estate conveyed: White v. Crawford, 10 Mass. 
183; Story v. Odin, 12 Id. 157 [7 Am. Dec. 46]; Morris v. 
Edffington, 3 Taunt. 24; United States v. Appleton, 1 Sumner, 
492; Sali^mry v. Andrews, 19 Pick. 250. This view may per- 
haps tend to reconcile authorities which may seem conflicting, 
tending on the one side to show that no length of time, or con- 
stancy of use, can create an easement over one estate for the 
benefit of another, whilst there is unity of title in one owner — 
and on the other, that long use by the grantor may be evidence 
of titie to the easement in the grantee. The long and constant 
use of a way over the land of another, without interruption ox 

104 Atkins v, Bobdman. [Mass. 

objection, is eTidence of right, because it is not to be presumed 
that an owner would permit such use without right. But the 
long and frequent use of a way oyer a part of one's own estate, 
as conducive to the useful and convenient occupation of another 
part, tends to show that it was necessary or beneficial; and, 
therefore, if there be no other way, or if there bie any words 
describing or alluding to a way actually used, or when ways 
*' appurtenant" are expressed, and in fact there is no way tech- 
nically appurtenant, such previous use by the owner may be 
avaihbble to give effect to the presumption that it was intended 
that such right of way should pass, as parcel of, or incident to, 
the estate granted. 

With this view of the law before us, we are to look at the 
deed by which the defendants' estate was granted by the plaint- 
iff's predecessor, to ascertain the nature and extent of the 
plaintiff's easements, for a disturbance of which, this action is 
brought. It has already been decided that in the present case 
the actual use and enjoyment, on the part of the plaintiff and 
his predecessors, oi^er the estate of the defendants and their 
predecessors, have been so nearly in conformiiy with the pro- 
visions of the deed, that it is to be presumed that the parties in- 
tended to claim and hold their rights under it, and, therefore, 
that the plaintiff's rights depend on the reservations in the 
deed, and not on prescription. The law will not presume a 
non-appearing grant, or raise a prescription, where a grant is 
produced, to which his use, occupation, and enjoyment may be 
ascribed. The court were of opinion, that the plaintiff's rights 
depended on the deed from Haugh to Henry Tew, in 1703. In 
this deed, the grantor having described an existing gate and 
passage way, of about five feet wide, on the southerly side of 
ilie estate granted, leading from the street, now Washington 
street, into the yard of said messuage, made the following res- 
ervation: '* Reserving out of this bargain and sale, unto me the 
said Haugh, my heirs and assigns for ever, free liberty of in- 
gress, egress, and regress through and upon the said gate or 
passage way, for canying and recanying wood, or any other 
thing through the same, and over the yard or ground of the 
said messuage hereby granted, into and from the housing and 
land of me the said Atherton Haugh adjoining, for the use and 
accommodation thereof, without damnifying or annoying thereby 
the said Henry Tew, his heirs and assigns." Upon the con- 
struction of this clause, the court decided, that a convenient 
right of passage way was reserved for the benefit of the plaint- 

Maxch, 1841.] Atkins v. Bordman. 105 

iff 's estate, but that the width of it was not fixed. And we are 
still of opinion, that that was the true construction. For, 
although the gate was described as "about five feet wide," 
there was no warranty of its width, and no words declaring 
that he should have the width of the way as it then existed, or 
any equiyalent expression. And the word ''about" indicates 
that it was not intended to be definite. It was therefore the 
light of a suitable and convenient passage for the purposes in- 
dicated: 20 Pick. 295. 

On a subsequent trial, the plaintiff claimed a right to the use 
of the passage way, open to the sky, according to the lines of 
the south and west walls of the old building on the defendants' 
lot. As to arching oyer the passage way, the judge at the trial, 
instructed the jury that if this did not occasion any inconven- 
ience by darkening it, or otherwise, in respect to the uses for 
which it was reserved, the plaintiff would not be entitled to any 
damage on this ground; but on this point they were instructed 
to assess separate damages. It appears that upon that ground 
on that trial, the jury assessed damages in the sum of one 
dollar. On the same ground, the jury on the trial now under 
review, assessed damages in the sum of three hundred and fifty 
dollars. It therefore now becomes necessary more carefully to 
investigate the right thus claimed by the plaintiff, and examine 
the principle on which it rests; because, if it be true that the 
plaintiff has the right claimed, to have said passage way open 
to the sky, the defendants are under a corresponding obligation 
to take down their building, so far as it is erected over the said 
passage way. 

The owner of an estate in fee, by virtue of his interest and 
power as proprietor, may make any and all beneficial uses of it 
at his own pleasure, and he may alter the mode of using it, by 
erecting or removing buildings over it, or digging into or under 
it, without restraint. Cujits est solum, ejtis est usque ad ccelum. 
If any other person has an easement in it, the owner has still 
all the beneficial use which he can have consistently with the 
other's enjoyment of that easement. If the easement is a right 
of way, this consists in a right to use the surface of the soil, for 
the purpose of passing and repassing, and the incidental right 
of properly fitting the surface for that use; but the owner of the 
soil has all the rights and benefits of ownership, consistent 
with such easement: Perley v. Chandler, 6 Mass. 454 [4 Am. 
Dec. 159j. He is entitled to the herbage growing upon it: 
Adams v. Emerson, 6 Pick. 57. All which the person having the 

106 Atkins v. Bordman. [Mass 

easement can lawfully claim is the nse of the surface, for pass- 
ing and repassing, with a right to enter upon and prepare it for 
that use, by leyeMng, graveling, plowing, or paving, according 
to the nature of the way granted or reserved; that is, for a foot 
way, a horse way, or a way for all teams and carriages. When 
no actually existing way, as bounded and located, is granted or 
reserved, the right of way in point of width and height, shall 
be such as is reasonably necessary and convenient for the pur- 
poses for which it is granted. If it be a foot way only, it shall 
be reasonably wide and high for all persons to pass on foot, 
with such things as are usually carried by foot passengers. If 
it be a way for teams and carriages, it shall be of sufficient 
height and breadth to admit of carriages of the largest size in 
common use, and high enough for loads of hay, and other simi- 
lar vehicles usually moved by teams. Under such circumstances 
what is a reasonable height and width, is partly a question of 
fact, and partly a question of law; the facts all being found by 
the jury, what is a reasonable width and height is a question of 
law; or to express the same thing in other words, what was in- 
tended by the parties to be the nature and extent of the right 
granted, is an inference of law, to be drawn from the terms of 
the instrument of grant, interpreted and explained by the facts 
and circumstances thus found by the jury. 

When no dimensions of a way are expressed, but the object is 
expressed, the dimensions must be inferred to be such as are rea- 
sonably sufficient for the accomplishment of that object. In the 
present case, the dimensions of the way are not expressed; but 
the purpose for which it was reserved is expressed, and it goes 
far to enable us to ascertain the dimensions. It was for the pur- 
pose of carrying wood, or any other thing, into and from the 
grantor's '' housing and land adjoining, for the use and accom- 
modation thereof." The grantor's adjoining house being a 
dwelling-house, it is to be limited to articles usually carried to 
or from a dwelling-house, in its ordinary occupation as such. It 
thereby excludes the presumption that it was to be adapted to 
the carriage of merchandise, such as bales, boxes, or casks. 
Wood must be taken to be fire-wood, and not timber or wood to 
be used for the purposes of manufacturing. And "any other 
thing," though in terms of the largest sense, must be construed 
to mean other thing of like kind used in a dwelling-house; as 
vegetables, provisions, furniture, and the like. Without exam« 
ining it more minutely, we are satisfied that the right reserved 
was that of a suitable and convenient footway to and from the 

March, 1841.J Atkins v. Bordman. 107 

grantor's dwelling-liousey of suitable height and dimensions to 
cany in and out furniture, provisions, and necessaries for family 
use, and to use for that purpose wheelbarrows, hand-sleds, and 
such small Tehicles as are commonly used for that purpose, in 
passing to and from the street to the dwelling in the rear, through 
a foot passage, in a closely built and thickly settled town. 

Upon these views of the rules and principles of law applicable 
to the present case, the court are of opinion that the defendants 
had a perfect right to build over the said passage way; it being 
one of the beneficial uses of the property which could be made, 
and which, as owners, they had a right to make, consistently 
with the full and free enjoyment of the foot way on the jMurt of 
the plaintiff. 

We think that this opinion is not inconsistent with the opin- 
ions heretofore given at nisi priua, and by the whole court., 
though perhaps the point was not stated with sufficient precision 
for the purposes of deciding definitely the rights of these par- 
ties, and putting an end to ilie long controversy which has sub- 
sisted between them. For this purpose, it is necessary to distin- 
guish accurately between an act, which is of itself an infringement 
of another's right, and an act which of itself is not an infringe- 
ment of the right of another, but which, in its consequences, 
may cause a damage to that other. In the former case, no spe- 
cial damage, no actual pecuniary loss need be stated or proved; 
the law presumes that a pariy sustains some damage from the 
infringement of his right, and enables him to maintain an action, 
whether he have suffered actual damage or not. And in such 
case, it is often highly proper that a pariy should bring his 
action, though he may expect to recover nominal damage only, 
for the purpose of vindicating his right, and thereby preventing 
the adverse party from acquiring a right, by long and uninter- 
rupted use: 16 Pick. 247.^ 

But there is another class of cases, where although the act 
complained of may not be unlawful, or, if unlawful, not an in- 
fringement of any right of the plaintiff, no action can be main- 
tained without alleging and proving a special and particular 
damage to the plaintiff; and the damages to be recovered are 
confined to an indemnity for the loss thus proved to have been 
sustained. The plaintiff sets forth the act done, and alleges 
that by means thereof, he sustained the damage complained of, 
technically called declaring with a per quod. As where the 
plaintiff complained that while he was proceeding along a navi- 

1. BoHvar Hfg. Co ▼. NtpatuH Mfg, O: 

108 Atkins v^Bordman. [Mass 

gable creek with his barge laden, etc., the defendant obstructed 
the creek, per quod the plaintiff was compelled to carry his 
goods around, at a great expense. In such case the action lies for 
the special damage immediately occasioned by the obstruction ; but 
it would not lie for the obstruction itself, without special damage, 
because although it was an infringement of a public right, and 
so was unlawful, yet it was not an infringement of the peculiar 
right of the plaintiff: Boae v. MUes, 4 Mau. & Sel. 101. . So for 
special damages occasioned by obstructing a highway: Gy^eady 
V. Codling, 2 Bing. 263. So by a proprietor of land through 
which a watercourse runs, against a proprietor higher up, where 
the gravamen of the complaint against the upper proprietor was, 
that by damming up the water above, it came with greater im- 
petuosity, and thereby injured his banks : Williams v. Morland, 
2 Bam. & Cress. 910; S. 0., 4 Dow. & By. 583. But it might be 
otherwise, where the plaintiff had acquired a right to the water 
by appropriation, and the complaint was for the infringement of 
that light: Bealy v. Shaw, 6 East, 208. It is manifest, we think» 
that this distinction has become important in the present case, 
because a jury have heretofore given one dollar for this item» 
treating it as a case of mere nominal damages; whereas, the ver- 
dict now under consideration assesses that item of damages at 
three hundred and fifty dollars. 

We have stated that the opinion now expressed will not ap- 
pear, upon strict comparison, to be inconsistent with those for- 
merly expressed, though in the former cases the rule prescribed 
may have been less precise and definite. It may, therefore, be 
proper to review them. On the first trial, the jury were in- 
structed as to the passage way, that the reservation in the deed 
was answered, by giving the plaintiff a passage way as convenient 
as it was when the reservation was made; that if the present pas- 
sage way was not so wide as before, and was not open above, yet 
if it was as convenient, etc.; but that the defendants had no 
right to narrow or cover the passage, so as to cause serious in- 
convenience to the owners, etc. The observation of the court, 
when this part of the case came before them on a motion for a 
new trial, was, that by the case it appeared that the passage had 
been narrowed and arched over, and rendered darker and less 
convenient. And in reference to the instruction to the jury, 
that so far as the plaintiff had suffered inconvenience from the 
alteration, he was entitled to recover damage, the court say that 
this was correct: 20 Pick. 295. 

It is manifest we think, that in these remarks, so far as thej 

March, 1841.] Atkins v. Bordbian. 109 

related to the dimensioiis of the passage way, the court consid- 
ered that the passage way, as it was, in point of convenience, at 
the time it was reserved, and the width of it, for the purpose 
for which it was reserved, might be considered as equivalent, and 
that the one description was used instead of the other. For in 
this same opinion the court say, that they are satisfied that a 
convenient right of way was reserved, but that its width was not 
fixed: 20 Pick. 295. But if it was to be a passage way as it ex- 
isted at the time of the reservation, its width would have been 
fixed. In point of fact, as the buildings then stood, the passage 
used was of irregular breadth, being for a part of the way eight 
or nine feet wide. As a definition of the plaintiff's right, it 
would have been more exact to say that it was a right of way 
suitable and convenient for the purpose for which it was re- 
served, namely, as a foot way from a public street to a dwelling- 
house in the rear, and for carrying wood and other articles, in- 
cident to the occupation and enjoyment of such a dwelling- 
house. This admits of any alteration and improvement in the 
estate over which the easement is reserved, consistent with the 
preservation and maintenance of the right of passage itself. So 
it has been lield in analogous cases. A grant of water, suffi- 
cient to supply a grist-mill, limits the quantity of water, but not 
the use to which it is to be applied. If, in the progress of im- 
provement in the.useful arts, the owner removes the grist-mill, 
and erects a cotton-factory, it is held that he has a right to do 
so, taking no more water for his factoiy than he had a right to 
take for his grist-mill. Such construction is conformable alike 
to the rules of law, and to the principles of public policy. The 
law, carrying into effect the intention of the parties, does not 
intend to restrict the right of ownership of the real estate sub- 
jected, further than is necessary to give full effect to the ease- 
ment; and public policy requires, as well in cities as elsewhere, 
that an owner of real estate should be allowed to make all the 
improvements upon it which can be made consistently with the 
just rights of others. 

So far as the remark of the court applied to the darkening of 
the passage way, it did not go on the distinction between doing 
an act, which the defendants have no right to do, by building 
over the passage way, and doing that which they had a right 
to do, but doing it in such a manner as to cause some slight 
consequential damage to the plaintiff. Besides, the damage 
given by the jury on that ground, being merely nominal, and 
the instruction not being wrong in point of law, and especially 

110 Atkins v. Bobdman. [Masa 

as the plaintiff was entitled to hold his yerdict for other damages, 
the court had no good reason for setting aside the verdict, even 
though it might have appeared to them, that upon the evidence, 
no case for any consequential damages was established in point 
of fact. 

In saying, that the actual condition of the way, at the time of 
the reservation, is not the measure and definition of the plaint- 
iff's right, it is necessaiy to guard against two misconstructions 
of this remark. We do not mean to say, that when a way is 
actually located and fixed by definite and visible objects, as by 
buildings or fences, the grant or reservation may not refer to 
such way actually existing, and that the limits then would not 
be fixed by the act of the parties themselves. The contraiy is 
true in such case: SaLvsbwry v. Andrews, 19 Pick. 250. Even 
where an estate is granted with all ways ^'appt^nant," and 
there is, strictly speaking, no way appurtenant, but there is an 
actually existing way over the grantor's other land, it shall be 
taken, that the way actually used and existing, though miscalled 
" appurtenant," shall pass; because it must be understood that 
such was the intent of the parties : Morris v. EdgingUm, 3 Taunt. 24. 
Ihe other misconstruction, against which we would guard, is this : 
when it is said, that in such a case as the present, the actually 
existing state of the passage way, at the time of the reservation, 
is not the measure or description of the right reserved, we do 
not mean to say, that such state of the passage way may not be 
evidence, and often evidence of a very forcible and determinate 
character, to prove what is reasonable and convenient, and what 
those most conversant with the matter have, by their practice, 
shown to be in their opinion most reasonable and convenient, 
under given circumstances. And this goes far to show what 
was in the mind of the court, when they seemed to consider the 
actual condition of the way, at the time of the reservation, as 
ecjuivalent to the convenient passage way reserved by the deed. 

This cause again came before the court in June, 1838. The 
judge on that trial, had instructed the jury, that as to arching 
over the passage way, if it did not occasion any inconvenience, 
by darkening it or otherwise, in respect to the uses for which it 
Vt as i-eserved, the plaintiff would not be entitled to any damage 
on this ground: 20 Pick. 298. This is wholly consistent with 
the opinion now expressed, but without stating definitely what 
were the rights of the defendants, as owners, over the passage 
way, and therefore less explicit, than it might have been useful 
to state it, under the circumstances. In regard to the breadth. 

March, 1841.] Atkins u Bordman. Ill 

the jmy were instmctedy that the defendants were bound to main- 
tain a passage way, equal in breadth to the distance between the old 
gate-postfi, and otherwise couTenient for the uses for which it was 
reseryed: Id. 299. The former part of this direction was, we 
think, inaccurate, in taking the distance between the gate-posts as 
the measure of the plaintiff's rights; but supposing that width 
and a reasonable width to be practicallj the same thing, this 
mode of laying down the rule would lead to no practical error 
in the result. The opinion of the whole court, on this part of 
the case, was extremely brief, and we are apprehendye tEiat from 
its conciseness, or from the implications which it carries, rather 
than from anything expressed, it may haye led to an erroneous 
application of the rule of law, in the subsequent trial. It is 
thus stated; " The right of way from Washington street to the 
rear of the defendants' buildings seems to be definite and cer- 
tain. The use of it, as it existed in fact from the date of the 
reservation to the time of the trial, has been satisfactorily ascer- 
tained. It was then uncoTcred. No right to coyer it was 
granted. The jury haye found it to be darkened and injured by 
the arch oyer it, and haye assessed damages for the injury. Ot 
this there can be no complaint:" Id. 802, 803. 

The way, indeed, was definite and certain as to its direction 
and the purpose for which it was reseryed; and the long use 
was good eyidence of what the parties concerned understood as 
necessary and conyenient. But when it is said, that the passage 
way was then uncoyered, and no right to coyer it was granted, 
especially as the plaintiff claimed a right to haye it open to the 
sky, it may haye been understood, though not so expressed, 
that, without such right granted, the defendants had no such 
right. We think it could not haye been so intended, and that 
the court did not pass upon that question; especially as the opin- 
ion immediately proceeds to state, that the jury -haye found that it 
had been ' * darkened and injured by the arch oyer it," and assessed 
damages for the injury. Supposing, then, that the defendants 
had a right to arch the passage oyer, yet, if in the exercise of 
that right, they had done it in such a manner as to injure the plaint- 
iff, and that by means thereof he had suffered special damage, he 
might recoyer the damages giyen in that case, on the principle 
of the maxim, that eyery one shall so use his own property and 
his own right, as not to injure another. This principle may be 
well illustrated by a recent case. The defendants were erect- 
ing a steam-boiler and apparatus on land adjoining the premises 
of the plaintiff, and by some mismanagement it exploded and 

112 Atkins v. Bobdman. [Maaa. 

did damage to the plaintiff's buildings. The defendant was held 
liable: WiUe v. Hague, 2 Dow. & By. 33. 

It therefore does not appear whether the damage, given for 
arching oyer the passage way, was given for a supposed viola- 
tion of the plaintiff's right in the estate, or for a supposed con- 
sequential special damage done to the plaintiff, in the exercise of 
the defendants' own right in a careless or improper manner; and 
there was nothing in the instruction to the jury, under which 
that verdict was found, to show that it was not given on the lai* 
ter ground; in which case, there was no reason to set aside the 
verdict. The amount of the damages was not such as to indi- 
cate that the juiy might not have proceeded on the latter ground, 
or to call the particular attention of the court to the distinction 
between these grounds. We think, therefore, that the question 
now distinctly brought before the court has not been decided 
by any of the opinions heretofore given by the court. That ques- 
tion is, whether the defendants had a right to build over the 
passage way. On that question, for the reasons herein before ex- 
pressed, the court are of opinion, that the defendants, as owners 
of the land, had a right to build over the ground on which the 
passage way in question was reserved; that the plaintiff, under 
his reserved privilege, had no right to have it open above to the 
sky, or to any other height, except so far as necessary and conven* 
ient for the uses of the foot way reserved, sufficient in height 
and breadth for the purposes expressed in such reservation. 

Having taken this more broad and extended view of the rights 
of these parties, and the grounds of law on which they rest, it 
will be the less necessary to take into consideration the particular 
exceptions to the charge of the judge, upon which the cause 
now comes before us. So far as the judge charged the jury, 
that the defendants had no right to arch over the passage, and 
use the space over it for any purpose of building, such charge 
was erroneous, and had a tendency to mislead the jury. We 
are also of opinion, that so far as the judge instructed the jury, 
that the defendants were bound to keep open a passage way 
equal in width to the distance between the old gate-posts, it was 
not strictly correct, although a passage of such width, and one 
of reasonable width, might not practically differ. We are aware 
that a similar instruction had before been given at nisi prtus, 
but it was before the case had been so fully considered as at 

For the reasons already given, the court are of opinion that 
the instruction of the judge was incorrect, so far as he directed 

March, 1841.] Atkins v. Bordman. 113 

the juiy that the defendants were liable for damages if the new 
passage was rendered more inconvenient, by being covered by 
i-eason of its being made a place of resort, or by being darkened, 
or otherwise. 

As to the darkening, we think the jury shoidd have been in- 
structed, that the defendants were not liable for damages, unless, 
from the length of the passage way, it was so darkened as to 
render it un£t for the purposes of a passage way. We may con- 
ceive of a covered passage of eight or ten feet high, of a length 
so considerable, that unless openings were left, there would 
not be light enough admitted at the ends to enable persons to 
use it with comfort, for the purposes of a passage way. But 
unless darkened to that extent, it is not a case for damage. It 
must render the premises to a sensible degree less valuable for 
the purposes of business: Parker v. Smiihy 5 Car. & P. 438; 
Back V. Staceyy 2 Id. 465; Wells v. Ody, 7 Id. 410; Pringle v. 
Wemham, Id. 377. 

We think, also, that the jury should have been instructed that 
the defendants were not liable for damages by reason of this 
covered passage being made, to a greater extent, a place of re- 
sort by other persons; first, because the consequential damage 
from that cause is too remote to be made the subject of an ac- 
tion; but more especially, because the plaintiff must either keep 
the passage closed, aud thus prevent the entrance of other per- 
sons, or seek his remedy by law, against those who do the actual 

One other subject, growing out of this report, remains for 
consideration. In the present action, the plaintiff claimed 
damages for injury done to his tenement by darkening an attic 
window, which overlooked the roof of the defendants' old build- 
ing. From the manner in which the facts are stated in the re- 
port, and the plans exhibited, I am not sure that the court fully 
understand the question. As we understand it, the complaint 
is, that the defendants' predecessor, by taking down the old 
building and erecting another somewhat higher and deeper, that 
is, further west, has obstructed the window in question, and 
diminished the air and light formerly received through it into the 
plaintiff's house. Taking this to be the case, we think it was 
determined in the former case, and rightly determined. The 
court did not, on a former occasion, mean to say that where one 
person, owning two contiguous tenements, grants one to another 
person, reserving certain easements for the benefit of his own 
estate, and granting others in his own estate for the benefit of 

Am. Dso. Vol. XXXVn— 4 

114 Atkins u Bobdbian. [Massw 

the estate conyejed, the parties and their sacceBsors might not 
acquire other easements respectivelyy bj grant, or prescription 
arising subsequently. But the principle was this: that when 
the enjoyment of a particular privilege may reasonably be re* 
ferred to a deed, it shall be considered as derived from such 
deed, and then the just construction of the deed will fix the 
rights of the parties; In the present case, Haugh, owning two 
tenements contiguous to each other, granted one in fee to Tew, 
reserving certain easements. Such right in fee vests in the 
grantee all the powers of an owner, and of course a right to pull 
down the buildings and erect new ones; and such right can be 
restrained and qualified only by express reservation. The deed 
in question contains this clause: ''And it is mutually agreed 
between the said parties, that whensoever the said Henry Tew (the 
grantee), his heirs or assigns, are minded to make or add any 
addition of building backward, he or they shall only make the 
breadth thereof equal with the breadth of the back of the chim- 
neys of the said tenement hereby granted." 

It must be recollected, that building backward was an expres- 
sion equal to building more westwardly, or more distant from 
the street. But a restriction against extending in breadth, pro* 
hibited the grantee from building more northerly, or in other 
words, nearer the grantor's other tenement. The case, then, is 
that of a grantor conveying a tenement adjoining his own; 
the parties understand that the grantee, as owner, will have a 
right to alter the buildings, or erect new ones, and they provide, 
by an express stipulation, that in such event the grantee shall 
not erect any building nearer than a certain prescribed line to 
the tenement of the grantor. But no limit is prescribed as to 
the height of the building. The construction we formerly put 
on this agreement was, that as exgressssio umus exclusio est aUeriuSy 
the limitation upon the right of the grantee as to nearness, 
without any stipulation as to the height of such building, raised 
a &ir implication that no such restriction was intended. And 
we still consider that this construction of this agreement of the 
parties was correct. The grantor owned both tenements; he 
had the full disposing power; he might decline selling at all, 
and he might prescribe such conditions and limitations as he 
might think expedient. The more he charged the estate granted 
with incumbrances and servitudes, the less price he would prob- 
ably obtain for it. And so, on the other hand, the more liberal 
the grant, the higher the price. We are then to presume, that 
when he had the entire power in his own hands, he took oare to 

Sept. 1841.] Weed v. Jewett. 115 

protect his own estate, and secure the quantity of air and light 
necessary to the enjoyment of it, by prohibiting his grantee 
from building so near thereto as to injure it. If, then, the de- 
fendants have not built within the limit so prescribed, or con- 
formably to a former judgment of the coiui^, have removed their 
building, so far as it was erected within that limit; and if, as 
we suppose, the darkening of the plaintLfTs attic window was 
occasioned by building higher than the old building, but within 
the limit thus prescribed by the deed, it was damnum absque in^ 
juria, and the plaintiff can recover no damage on that accounts 
Yerdict set aside, and new trial granted. 

Cited in Dtana v. VaknUne, 5 Mete. 14, to the point that a party may 
maintain an action, where his rights of property are invaded, without proof 
of actaal damages; in Botoen y. Conner, 6 Cush. 137, that a right of way may 
be created by reservation or exception in a deed, as well as by a deed grants 
ing such right of way; in PraU v. Sanger^ 4 Oray, 88, that in cases of res*^ 
ervation of right of way the grantee has a right to such a way as is reason^ 
ably necessary and convenient for the purposes for which it is granted; m 
Oodman v. EvanStl Allen, 447> that grantors of an easement are limited ta 
the use granted; in ProprietorB of Locks and Canals v. Nashua A L. R, R^ 
Co., 104 Mass. 11, that, for all purposes consistent with the easement granted^ 
the right to nse the land remains in the owner of the fee; in Fox v. Uiiion 
Sugar R^nery, 109 Id. 297, that a deed is to be construed most strongly 
against the grantor. Distinguished in Welch v. Wilcox, 101 Id. 164. 

Weed v. Jewett. 

[3 Mbtcau, 608.] 

ow Attornbt Authorizing thb Attobitey to Regbitb Aim Rb* 
GBIPT VOR Debt due to the constituent from a third person, which con- 
tains a clanse stating that the letter is an assignment of the debt, will 
be considered an assignment thereof, although it is not in terms irrevo- 
cable, and does not expressly authorize the attorney to receive the money 
to his own use. 
Dkbtor mat Lawyully Assign his Future Eabkinos to one of his cred- 
itors, and if the employer thereupon agrees to pay to the assignee ha 
can not afterwards be charged as the trustee of the assignor in a process 
sued out by another creditor. 

FoBEiON attachment. The opinion states the ease. 

B, A. Chapman, for the plaintiff. 

«/. W, Newcomb, for the trustees. 

PuTNAif , J. The plaintiff claims to recoTer the money daa 
from the Chicopee Manufacturing Company, in yiitue of a pro* 

116 Weed v. Jewett. [Mass. 

cess of foreign attachment; and David M. Bryant claims the 
same by force of a power and assignment. 

It appears that Jewett (the debtor) was a laborer employed 
by the company, and that he by an instrument under his hand 
and seal, appointed Mr. Bryant to be his lawful attorney, *' for 
me" (as it is expressed), '^ and in my name to ask for, receive, 
demand and receipt for all sums of money that may now be due 
to n^e from the Chicopee Manufacturing Company, etc., for 
labor performed in their service," etc., " this being an assign- 
ment of the same." It was contended, on the part of the 
plaintiff, that this should be construed to be a mere authority 
to receive the money for the constituent, and not an assignment 
of the same. That it was misnamed an assignment; but that 
the legal effect of the instrument is a power without an interest. 
But we can not think so. The instrument authorizes Bryant to 
receive and discharge the debt, and then declares, in effect, 
what shall be done with the money. No particular form of 
words is necessary to constitute an assignment. It may be 
quite sufficient to transfer the property, although the word 
** assign" should not be used. » In Oerrish v. Sweetser, 4 Pick. 
874, a power irrevocable to recover, etc., in the name of the 
constituent, but for the use of the attorney, was held to be an 
assignment. In the instrument under consideration, it is not said, 
in so many words, that the power should be or was irrevocable; 
but that quality would necessarily be inferred, if the property 
was by the deed intended to be transferred. The grantor or as- 
signor could not revoke it; but on the contrary the courts of 
law would not protect it, and sustain an action in the name of 
the assignor, for the benefit of the assignee: See 19 Wend. 74.^ 

It is not said, in so many words, that the attorney might re- 
ceive the money for his own use; but that is necessarily to be 
inferred from the words which were used, viz. , that the instru- 
ment was an assignment; and if so, the assignee of course was 
to have the property for his own use. 

But it was contended, that there was no consideration ex- 
pressed in the instrument, and so that it should be considered 
as void— certainly against creditors. But it has been repeatedly 
held, that parol proof of the consideration may be given, although 
it be not expressed. And in the case at bar, the debt of the 
assignor, which was due to the assignee at the time of the assign- 
ment, to an amount exceeding the claim assigned, is to be con- 
flidered a good and legal consideration for the transfer. And it 

1. PeopU ▼. Tioga C. P, 

Oct 1841.] Burden v. Thayer. 117 

appears from the answer of the agent of. the company, that they 
assented to the arrangement which was made, as aboTe stated, 
between Bryant and his debtor. They undertook to pay to 
Bryant all the money due, and all that should become due, for 
the labor, etc., of the debtor. A payment to the debtor after- 
wards would haye been ineffectual. Bryant only could give a 
Talid discharge for it to the company. 

But it was argued for the plaintiff, that as the instrument was 
dated on the second of March, 1839, and the writ was served on 
the twelfth, no part of the debt, which accrued between the sec- 
ond and the twelfth, could be covered by the assignment. 

The case stands thus, in relation to that point, Jewett was in- 
debted to Bryant, and he agreed to work for Biyant's account, 
at the factory of the company, and they agreed to pay Biyant 
accordingly. This was a proper subject of contract or agree- 
ment, and when the labor was performed the company wera 
bound to pay according to their undertaking. 

Trustees discharged. 

Cited m Emery Y. Lawrenee^ 8 Cosh. 154^ and in Boylm v. LeomardtijJkaik^ 
406, to the point that an assignment of fatore wages is valid. 


[8 XaTOALV, 76.] 

Wbebs Owmm of Land Lbasbd for Tebm of Ybabs MoKraAOSS thb 
Saxb, the mortgage transfers to the mortgagee the reversion, to which 
the rent is incident^ and if he gives notice to the lessee of his right 
thereto, the latter will thereafter he liable to pay to him all rents that 
hecome due after the date of such conveyance and notice. Bat the mort- 
gagee can not recover from the lessee rent which hecame due prior to 
the execution of the mortgage. 

AnoBNMEirT 18 vo LoNOKB Nbosssart to Enablb Pubohasbb of Bbvkb- 
sioir to maintain against the lessee an action of debt for rent 

Bbit ]>ub and in Abbkar at TncB of Exboution of Mobtoaob of the 
premises, out of which it accrued, does not pass by the conveyance 
of the land, hut is a mere chose in action, which the grantee can not 
maintain an action in his own name to recover, although his grantor has 
sssigned it to him. 

Debt for rent. The opinion states the case. 

Washburn^ for the defendants. 

Barton^ tot the plaintiff. 

By Court, Shaw, C. J. Upon the case stated, it appears that 

118 Burden u Thayer. [Maaa 

iu 1833, William Capron, being owner of the estate, leased the 
same to the defendants for a term of twelve years from April 1, 
1833, at a rent of one hundred and thirty dollars, payable an- 
nually on the first of April each year during the term. On the 
fifth of April, 1837, said Oapron mortgaged the leased premises 
to the plaintiff, to secure the payment of two thousand two hun- 
dred and fifty dollars, in one year from date, which has never 
l>een paid. In May, 1837, the plaintiff gave notice of this mort- 
^[age to the defendants. The defendants have paid to the 
plaintiff the annual rents due April 1, 1838 and 1839, which ac- 
crued after the mortgage to the plaintiff; but they refuse to pay 
the rent due April 1, 1837, which became due and payable to 
Oapron, the lessor, five days before his mortgage to the plaint- 
iff; and the question is, whether the plaintiff is entitled to re- 
cover that year's rent. The mortgage from Capron to the 
plaintiff described the premises as under lease to Thayer & 
Fairbanks, for a term of years, and adds: '^ Should the condi- 
tions of the mortgage be broken, the rents, dues, and demands 
of every kind arising out of said leased premises, due or be- 
coming due, shall be paid to said Burden, his executor, and all 
the leases shall be assigned to him, and he is authorized to de- 
mand and receive the same in his own name, or that of said 
William Capron, and proceeds appropriated to the payment of 
said mortgage.'* 

The court are of opinion, that the plaintiff has no right to re- 
cover the year's rent which fell due and was payable, and in 
lurear, when he took his deed of Capron. When a man takes a 
deed, either by way of absolute conveyance or mortgage, of an 
estate which is under a lease for years, he must take such estate 
as his grantor had; which, in that case, is a reversion — ^the 
-estate subject to the lease. But the rent is incident to the re- 
version and passes with it, and the grantee or mortgagee, by 
force of the conveyance, has a right to receive all rent accruing 
upon the estate; jt is a part of the realiy and passes by the deed. 
3ut when rent is payable quarterly or yearly, the annuxd or 
quarterly payments are not to be apportioned. If the reversion 
is transferred before the time at which the rent becomes due, the 
light to such quarter's or year's rent passes with the reversion. 
In the present case, had the year's rent become due five days 
^ter, instead of five days before the mortgage to the plaintiff, 
it would have passed by it to the plaintiff. The rule is well ex- 
pressed in Cruise's Digest, tit. 28, c. 1, sec. 65. The right to a 
rent service is real estate descendible to the person who is en- 

Oct. 1841.] Burden v. Thayer. 119 

titled to the reversion. But from the moment that a payment 
of rent becomes due, it will go to the lessor's executor. 

Formerly, in order to constitute a privity of estate between 
the purchaser of the reversion and the lessee, so as to enable 
the former to maintain an action of debt for rent, attornment 
was necessary. But by statute 4 Aime, c. 16, sec. 9, a grant of 
the reversion is good and effectual without attornment: Moss v. 
OailiTnore, 1 Doug. 279. That statute having been passed long 
before the revolution, and this provision being a rule in amend- 
ment of the common law, we may probably consider it in force 
here: CommonweaUh v. Leach, 1 Mass. 61. But if otherwise, 
the rule itself is well established on the authority of long usage, 
and its adaptation to the more simple tenures, which were in 
use under our former government: Farley v. Tfumipson, 15 Id. 
25, 26. The general principle, that all future accruing rent 
passes with the reversion, is confirmed by the case of Birch v. 
Wrighl, 1 T. R. 378. These principles apply to all effectual 
conveyances of the reversion, whether by absolute deed or by 
mortgage. Then let us apply them to the case of a mortgage 
of an estate under lease, and with reference to other cases de- 
termining the relative rights of mortgagor and mortgagee. 

It is now well settled, that a mortgage in fee transfers pres- 
ently all the title which the mortgagor has in the estate; and 
this includes the right to enter and hold possession of the es- 
tate, even though the mortgage is given to secure the payment 
of a debt at a future day, unless there is some stipulation that, 
until a breach of the condition, the mortgagor shall hold pos- 
session. In such case, the rents and profits of the mortgaged 
premises constitute a part of the fund pledged for the payment 
of the principal and interest of the debt to be secured; and 
must be accounted for by the mortgagee: NewaU v. Wright, 8 
Mass. 138 [8 Am. Dec. 98]. But in such case, it is optional 
with the mortgagee, whether he will enter or not; and in gen- 
eral if the estate is ample security for the debt and interest, it 
is not for the interest of the mortgagee to incumber himself 
with a liability to account; and therefore it commonly happens, 
that in case of a mortgage in fee, the mortgagor is left in pos- 

But in case the premises, at the time of the mortgage, are 
imder lease for a term of years, the mortgagee can not disturb 
the possession of the lessee, who has a prior title; and therefore 
he can not enter. But as the mortgage transfers the reversion, 
to which the rent is incident; as it binds the whole of the realty. 

120 Burden v. Thaver. [Masa. 

of -which the rents afterward accruing are a part; he may giye 
notice of his right to the lessee, and of his election to take the 
rents; and then the lessee becomes bound to pay the rent to him 
as mortgagee. But if he does not elect to take the rents and 
account for them, then, in analogy to the right of a mortgagee 
in fee to enter or not, at his election, the mortgagee of a rever- 
sion may forbear to give notice to the lessee; and in that case,, 
the lessee will be protected in paying the rent to the mortgagor. 
And so it seems to be provided by the statute of Anne before 
cited, that no tenant shall be prejudiced by the payment of rent 
to his landlord, until he has notice of the transfer of the rever- 
sion. This, it is strongly intimated by Mr. Justice Buller, in 
the case of Birch v. Wright, 1 T. R. 385, would have been the 
rule of the common law, if no such proviso had been expressed 
in the statute. 

But it seems to be extremely well settled by the cases, that 
the rent, which became due and was in arrear at the time of the 
assignment of the reversion, whether absolutely or by way of 
mortgage, was a part of the personalty due to him who had the 
reversion when it accrued, and did not pass to the grantee or 
mortgagee of the reversion: Moss v. Gallimore, 1 Doug. 279; 
Birch V. Wright, 1 T. R. 378; FUchburg Cotton Mfg. Corp. v. 
Melven, 15 Mass. 268; Demarest v. WUlard, 8 Cow. 206. To ap- 
ply these rules to the present case, it results, that at the time 
the rent now in question fell due, April 1, 1837, William Cap- 
ron was the holder of the reversion in his own right, and by 
force of the lease was entitled to the rent. It then became a 
debt to him, a chose in action, and did not pass by the mort- 
gage to the plaintiff. But as the plaintiff did give notice to the 
tenant in May, which was before another year's rent became due, 
he acquired a right to the rent which accrued April 1, 1838, al- 
though it was before condition broken. This, however, is 
stated on the assumption that there was no stipulation in the 
mortgage, that the mortgagor should retain possession until 
condition broken. This is not stated in terms, but we take it 
for granted, though not now material to this case, because tEiat 
year's rent has been paid into court, by the defendant. 

But another ground is taken in argument, arising out of the 
special terms of the mortgage, as above cited. It is contended 
that by force of that special clause, Capron assigned to the 
plaintiff rents, dues, and demands arising out of said leased 
premises, due, or becoming due, etc. It may weU be doubted 
whether this did not look to the contingency of the condition 

Oct 1841.] Pabkeb v. Peoprietoes of Locks etc. 121 

being broken by the non-payment of the debt, and mean to 
transfer to the mortgagee such soma as should be then due. 
But the decisive answer is, that this, if available at all, was 
nothing more than the assignment of a chose in action. The 
year's rent then due and in arrear was a debt, and though it 
arose out of the land, yet had become wholly detached from it. 
All the above authorities, which go to show that it had ceased 
to be part of the realty, and that it did not pass by the convey- 
ance of the land, establish the point, that it was a mere chose 
in action. Being so, it can not be recovered by the plaintiff in 
his own name, whatever equitable right he may have to claim it, 
in the name of the assignee: WiUard v. TUlman, 2 Hill, 274. 

According to the terms of the report, the order must be, that 
a new trial be granted; but as this opinion is decisive of the 
plaintiff's case, the proper course wiU be, if the plaintiff consent, 
to enter a nonsuit. 

Bntbt ow MoBTOAOxi AND DsiffAHD OF Patmxnt ov Bxst to him will 
entitle him to the rent: Stone v. PaUenon, 31 Am. Dec. 166, note 157. 

Tbb FBXNdPAL GASB IS GITBD in Mas9. If, L. Ins. Co, V. WiUon^ 10 Mete. 
127; Waamer v. Bacon, 8 Gray, 408; Rwaeli v. Alien, 2 Allen, 44; Nlcholwn v. 
MutAgle, 6 Id. 216; and in Qrtmdin v. Carter, 99 Mass. 16, to the point that 
when a mortgage is made snbeeqnently to an existing lease, the rents pass as 
incident to the reversion; and if at the time possession is taken there is rent 
aooming upon a qnarter not expired, the rent passes as incident, and the 
mortgagee may maintain an action for it. Bnt the rent which has accmed 
prior to the entry does not pass as incident, bat is merely a chose in action. 
And in Dunahee v. Orundy, 15 Gray, 315, it is cited to the point that where 
a sublessee, on an assignment by his lessor of his lease, reqaested the assignee 
to permit him to oontinne in possession, and he did so, and paid rent, no 
other attornment is neces sar y to establish the relation of landlord and tenant 
between them. It is also cited in Busa v. Alpaugh, 118 Mass. 374, to the 
point that the provision of the stat. 4 and 5 Anne, c. 16, sec. 21, concerning 
grants of revenions withoat attornment of the tenant, has been adopted in 

HIS [ri: 

V. Pbopbibtobs of Looks and Canals 
ON Mebrimagk Riveb. 

(8 HxzcALr. 91.] 

Dud ow DisssiaxB, whilb the Dibsbisin is still Subsistino, conveys 
no title. 

Draomnr ov Om Co-tkk<ant bt Anothxb, What AHOuines to.— Where 
one oo-tenant convoys the whole estate, and the grantee records the deed 
and enten into open and notorious possession, claiming title to the entin 
ettatey this wiU amount to a disseisin l^ such grantee, of the other oi> 

122 Parker v. Proprietors of Locks etc. [Maas. 

Wbtt of entry. The opinion states the case. 
OreerUeaf and G. Parker, for the demandant, 
8, Hoar and ITopkinson, for the tenants. 

By Court, Wilde, J. The principal question, on which the 
decision of this case depends, relates to the title set up by the 
tenants. The question is whether, upon the facts reported, they 
have made out a good title by disseisin, commencing before, and 
continuing until, the time when the demandant purchased the 
premises of several of the heirs of Joseph Moors, who was the 
undisputed owner of a parcel of land, including the demanded 
premises, and died seised of the same. Unless, therefore, the 
heirs were disseised, when they conveyed to the demandant, his 
title is clearly good and the action is well maintained. On the 
contrary, if the demandant's grantors were disseised when 
they made their conveyances to him, it is equally clear that their 
title did not pass by those conveyances, and the tenants' title 
must prevail. That the deed of a disseisee, the disseisin still sub- 
sisting, is inoperative to convey the title, is a familiar principle 
of the common law, which can not be controverted. And on 
this principle, the counsel for the tenants maintain the defense; 
contending that they have given clear and conclusive evidence 
of the disseisin of the heirs of Joseph Moors, under whom the 
demandant claims title. 

By the report of the evidence, it appears that Joseph Moors 
was a non compos, and that Moses Hale was his guardian, and 
occupied the Keyes pasture lot, including the demanded prem- 
ises, during the life of Moors, and after his death; it being in- 
closed with other lands, owned and occupied by the said Hale, 
lying upon each side of it: That after the death of Moors, Hale 
purchased of several of his heirs their rights in the pasture, and 
soon after conveyed the whole of it to Nathan Tyler, with the 
usual covenants of seisin and of warranty against the lawful 
claims and demands of all persons. 

The evidence thus far, we think, does not show any possession 
adverse to the title of Moors or his heirs. During his life, his 
guardian had the right of occupation, and after his death, if his 
guardian continued his occupation, the presumption is, that it 
was for the benefit of the heirs; and this presumption is con- 
firmed by his purchasing the shares of several of the heirs soon 
after. If, before that purchase, Hale's possession was adverse, 
so as to amount to a disseisin, the disseisin would be purged 
by that purchai^. His subsequent possession must be consid- 

Oct 1841.] Pabkeb v. Propbiltobs of Locks etc. 123 

ered as the possession also of the other heirs, from whom he 
had not obtained a title. If a person enters on land, having no 
right or title, and maintains the exclusive possession, taking the 
rents and profits, his possession would be considered adverse, 
and, if of sufficient notoriety, would amount to a disseisin. 
But if a person enters, having a title, and a right to enter, his 
entry and possession are presumed to be in conformity to his 
title. No man is presumed, without evidence, to have done, or 
to have intended to do an unlawful act. If then a tenant in 
common enters on the common property, and takes the whole 
rents and profit^ without paying over any share thereof to his 
co-tenants, his possession is not to be considered adverse to them, 
but in support of the common title. Lord Mansfield says that 
a refusal to pay such shares is not sufficient evidence of an ouster, 
without denying the title: Cowp. 218.* It is true, that if a ten- 
ant in common continues in possession for a great length of time, 
without interruption or claim by the other tenants, this would 
be evidence from which a jury would be authorized to infer or 
presume an actual ouster; and so on similar evidence a grant 
may be presumed. But there is no ground for any such pre- 
sumption or inference in the present case. The only evidence 
tending to show that Hale intended to hold the premises ad- 
versely to his co-tenants, is his deed to Tyler, in which he under- 
takes to convey the whole estate; and the material question is, 
whether this conveyance, and the entry and possession of Tyler 
claiming under it, are sufficient in law to constitute a disseisin. 
It was proved at the trial, that Tyler, immediately after his 
purchase from Hale, went into possession and occupation of the 
granted premises, and continued his occupation, without inter- 
ruption or claim of any one, until he conveyed the same to 
Thomas M. Clark, with the usual covenants of seisin and war- 
xaniy, as he purchased the same from Hale. During this time 
(a period of more than six years), he occupied the lot as a pas- 
ture, cut down the bushes, made a division wall between that 
and an adjoining lot, and one year plowed it and sowed it with 
zye. These facts, being admitted, are in the opinion of the 
court, conclusive proof of the adverse possession of l^ler, and 
show a disseisin of the heirs of Moors, under whom the demand- 
ant claims. For although the right and title of those heirs did 
not pass by the conveyance from Hale to Tyler, yet the deed 
purported to conv^ the whole estate. Tyler purchased the 

whole, with a wananiy of a good and indefeasible title, and he 


124 Parker v. Proprietors of Locks etc. [Mass^ 

sold it afterwards with the same warranty. The presumption is, 
that he intended to hold the estate in conformity to his purchase; 
and there is no evidence to rebut the presumption. 

It does not appear that Tyler had notice or knowledge of the 
defect in his title. But whether he had such knowledge or not, 
it is Tery clear that he was in possession, claiming the entire 
title; and this undoubtedly was an adverse possession, which, 
being open and notorious, amounts to a disseisin. To consti- 
tute a disseisin, it is not necessaiy, at the present day, to prove 
the forcible expulsion of the owner; nor is it necessary for a 
tenant in common to prove an actual ouster ^f the co-tenant. 
If he enters, claiming the whole estate, the entry is adverse to 
the other tenants. The intention so to hold the estate must be 
manifest, as it is in the present case; and the open and notorious 
possession of Tyler was constructive notice of a claim adverse 
to those heirs of Moors who had not conveyed their title. If 
they had notice by the deeds to Hale, and by him to Tyler (which 
were duly recorded), they must have known that the latter never 
entered as tenant in common, but that he entered as purchaser 
of the*entire estate. 

That this adverse entry and possession, claiming the whole 
estate, constitute a disseisin, is fully maintained by the cases 
cited by the tenants' counsel, and by all the modem authorities. 
The doctrine is fully discussed by Story, J., in PrescoU v. Nevers, 
4 Mason, 330. In that case, as in this, the defendant had a 
deed of the whole estate, but his title was only valid as to an 
undivided quarter part, in common with other owners. But 
he made an actual entry into the whole, claiming the entirely in 
fee and of right. And it was held, '' that his acts of ownerdiip 
were such as amounted to a disseisin of the co-tenants; for he 
entered as sole owner, and his possession was openly and notori- 
ously adverse to them." '' There can be no legal doubt," as it is 
said by the court in that case, " that one tenant in conmion may 
disseise another. The only difference between that and other 
cases is, that acts which, if done by a stranger, would per se be 
a disseisin, are, in the case of tenancies in conmion, susceptible 
of explanation, consistentiy with the real title. Acts of owner- 
ship are not, in tenancies in common, necessarily acts of dis- 
seisin. It depends upon the intent with which they are done, 
and their notoriety." We consider this a sound distinction, 
and it is fully supported by the authorities. 

In the case of Clapp v. Bromagham, 9 Cow. 530, which was in 
all respects substantially similar to the present case, the samo 

Oct. 1841.] Pabkeb v. Pboprietoes of Locks etc. 125 

decision was made, and the same doctrine of disseisin was laid 
down by Chancellor Jones, who discussed the subject very fully 
and yeiy ably. The English authorities, cited in that case, fully 
support the distinction laid down by Story, J., in PrescoU v. 
Nevers, So in the supreme court of the United States, in Ricard 
T. WiUiams, 7 Wheat. 121, the same distinction was laid 
down. The court say *' an ouster or disseisin is not, indeed, to 
be presumed from the mere fact of sole possession; but it may 
be proved by such possession, accompanied with a notorious 
claim of an exclusive right." 

By these and other authorities which might be noticed, if 
necessary, the doctrine of disseisin, as it has been held, seems to 
be well settled. To constitute a disseisin, actual force is not 
necessary; but open and exclusive possession, accompanied with 
acts of ownership, manifesting the intention to hold the whole 
estate adversely to the title of the true owner, is sufficient. 
Such a notorious adverse possession is considered as a construct- 
ive ouster, and is equivalent to an actual expidsion. The doc- 
trine is founded on a reason similar to that assigned as the 
ground of the ancient doctrine of disseisin by the operation of a 
grant; which was founded principally on the notoriety of such a 
conveyant3e. We are therefore of opinion, upon the facts re- 
ported, that the demandant's grantors, before their conveyances 
to him, had been disseised by Tyler; that this title by disseisin 
passed by his conveyance to Clark, and from Clark, through 
several intermediate conveyances, to the tenants. They leased 
the pasture from time to time, to sundry persons, who contin- 
ued the open and notorious occupation of the same, and one of 
whom was in the exclusive possession and occupation at the 
time of the conveyances to the demandant: 1 Shepley, 337.* 

It has been argued that the tenants are estopped to set up 
this title by disseisin, by the deeds of the heirs of Moors, who 
conveyed, on the twenty-sixth of September, 1815, their shares 
in the estate to Hale; but we think very clearly, that the title by 
disseisin is derived from Tyler, and that no act of Hale, either 
before or after his conveyance to Tyler, can, on any ground, de- 
feat the tenants' title. The conclusion is, that as the demand- 
ant's grantors were disseised when they undertook to convey 
their rights to him, their deeds were inoperative to convey any 
estate to him, and his title therefore wholly fails. 

Demandant nonsuit. 

PuTHAM, J., did not sit. 

1. TKomat Y. Pickering, 

126 TnuLL i\ Eastman. [Mass. 

OusTEB OF One Ck>-TBNANT B7 Anotusb: See note to Porter v. Hooper, 29 
Am. Dec. 484, 485; Lodge v. PcUterBon, 27 Id. 335, note 337, 338; Thomas v. 
Oarvan, 25 Id. 708, note 709; Den v. Webb, Id. 711, note 714; Town v. Need* 
ham, 24 Id. 246, note 255; Jackson y Whitbeck, 16 Id. 454, note 456; OiUasjrie 
V. Osbumf 13 Id. 136, note 140, where the subject is discussed at length; 
DooliUle V. Btakealey, 4 Id. 218; Lafavour t. llomeui, 3 Allen, 355, citing the 
principal case. 

DiSFisisiN or Okx Co-txkant bt Another: See note to Barnard v. Pope, 
7 Am. Deo. 228; MoU v. Alger, 15 Gray, 324, citing the principal case. 

Thf ^BiNdPAL CASE IS criBB iu Sumntr V. Stevens, 6 Meto. 339, to the point 
that aHverse possession continued for twenty years takes away the owner's 
right of entry; in Dodge v. Nichols, 5 Allen, 551, to the point that a tenant 
in common may be disseised, and that a conveyance by a diBseisee is unlaw- 
ful ai>d void; in Samuels v. Borrowscaie, 104 Mass. 210, to the point that aa 
actual, exclusive, open, and notorious possession is sufficient to constitute m 
dtssAisin; in Johnson v. Bean, 119 Id. 272, to the point that adverse pc eso s 
■irai continued long enough ripens into a good title by presumption of grant. 

Tbull v. Eastman. 

[8 ICXTCALV, 131.] 

WiBBE AN Hxnt Apparent Ck>NVE7s his Estate in Ezpeoxanot and 
covenants in the deed, that neither he nor those claiming under him, will 
ever claim any right in such estate, this covenant, which amounts to a 
warranty, will bar him and those claiming under him, when the right 


estate, whether the same fall to him by will or heirship, embraces all 
the right which he may afterwards acquire as well as what present right 
he has. 

Beal action. The facts enifficientlj appear from the opimon. 
B. Band, for the demandant. 
Hopbinaon, for the tenants. 

By Court, Ptttnam, J. The demandant seeks, by a recoverf 
in this action, to defeat a family arrangement, made by him and 
his brother Phinehas, now deceased, with the consent and 
knowledge of their father. And in this respect this case ia 
like that of FUch v. Mtch, 8 Pick. 480, wherein it was held, 
that a covenant by an heir expectant that he will convey the 
estate which shall come to him by descent or otherwise, is vaHd, 
if made with the consent of the ancestor, and for a sufficient con* 
sideration, and without any advantage being taken of the cov* 

In the case at bar, the agreement between the brothers, John 
and Phinehas, was made upon a good and legal consideration. 

Oct 1541.] Trull v. Eastman. 127 

The price, which Phinehas was to pay to John for his right in 
expectancy to his father's estate, was ascertained by disinterested 
referees; and the money was paid to and received by the de- 
mandant accordingly. Whereupon the deed, mentioned in the 
statement of facts, was made by the demandant to Phinehas. 
The tenants have the same right to the estate which Phin- 
ehas had, and which he could have and maintain if he were liv* 
ing. And the question upon the whole matter is, whether the 
demandant is by law entitled to recover. It has been contended 
for him, that no estate passed from him by his deed to his 
brother: That it was a mere expectancy, and that the deed 
could operate on the realiy only to convey the present right; 
and that the covenant should be restrained or limited in such 
manner, as that the grantor and those under him, should not 
claim any part of the estate thereafter, which he then had; but 
that he should be permitted to acquire, by grant or devise, any 
right to the estate thereafterwards, to his own use. And if 
that were the tme construction of the deed, the consequences 
would follow. It may be conceded that the covenant should be 
limited to the premises — ^the subject-matter of the conveyance. 
And it is perfectly clear, that the premises in that deed em- 
braced what right the grantor should thereafterwards acquire, 
as well as what present right he had. It is well settled, that if 
the heir releases with warranty, it bars him when the right de- 
scends. In Co. lit. 265 a, the law is clearly laid down: '* If 
there be a warranty annexed to the release, then the son" (who 
released living the father) *' shall be barred. For albeit the 
release can not bar the right, for the cause aforesaid" (viz., 
that the releasor had no present interest), " yet the warranty 
may rebut and bar him and his heirs of a future right which 
was not in him at that time:" See also Fitzg. 235.' 

Now the covenant, in the case before us, was in effect a cove- 
nant real. The law does not require any particular form of 
words to constitute such a covenant, which shall run with the 
land. In Fairbanks v. Williamson, 7 Oreenl. 96, it was held, 
that a covenant that neither the grantor nor his heirs should 
make any claim to the land conveyed, was a covenant real, 
which ran with the land. In effect it is a warranty, that the 
grantor will not, and that his heirs and assigns shall not, there- 
afterwards claim the premises granted or released, or any part 
of the same. And although the grantor or releasor had not 
then a present right, yet the subsequent acquisition of it shall 

1. Arthur T. Boekinham, 

128 Trull v. Eastman. [Mass. 

inure to the use of the grantee; or, in the better words of Lord 
Ooke, the grantor shall be rebutted and barred, when he after- 
wards shall so claim against his own warranty. There is noth- 
ing to the contrary in the -case of Comstock v. Smith, 13 Pick. 
116 [23 Am. Dec. 670], cited by the demandant's counsel. The 
grantors, in that case, conveyed all their right, title, and de- 
mand in the premises, with warranty against all persons claim- 
ing by, from, or under them, and not otherwise. The court 
construed that to be a conveyance of the interest and right 
which the grantors then had; and of course that it should not 
conclude them from subsequently purchasing or acquiring a 
title to the same estate. But, in the case at bar, the deed from 
the demandant to his brother expressly embraced future rights 
to be acquired. Indeed, those rights were the substantial mat- 
ter relating to which the deed and the covenant were made. 
Demandant nonsuit. 

Qkamt bt Ueib Appabbxtt of his Intkrbst ts kss Anobstob's Estatb, 
executed while the ancestor is living, is inoperative as a present conveyance: 
8 Wash. R. P. 348 (4th ed.); 4 Kent Com. 261; Stover v. Eyeleshimfr, 46 Barb. 
84; approved in 3 Keyos, 620; Davis v. Ilayden, 9 Mass. 519; Dart v. Dartt 
7 Conn. 256; BayUr v. CommoniDealth, 40 Pa. St. 37; Jackson v. Wrighi, 14 
Johns. 193; Jackson v. Waldron, 13 Wend. 178; Litt., sec 446; Co. litt., seo. 
265 a; Jones v. Roe, 3 T. R. 88, 93. 

But although a conveyance of an expectancy, as such, can not be made at 
law, such a conveyance may be enforced in equity as an executory agreement 
to convey, provided it be entirely fair, and sustained by an adequate oonrid- 
eration: Bayles v. CommonweaUh, 40 Pa. St 43; Stover v. Eycleshimer, 46 
Barb. 84; approved on appeal, 3 Keyes, 620; Hobson v. Trevor, 2 P. Wma. 
191; Beekley v. Newland, Id. 182; Wright v. Wrighi, 1 Ves. sen. 409; WeOiered 
V. Wethered, 2 Sim. 183; Ilarwood v. Tooke, Id. 183; Lyde v. Mynn, 4 Id. 
505; S. C, 1 MyL & E. 683; Holroyd v. Marstudl, 10 H. L. Cas. 191; Power's 
Appeal, 68 Pa. St. 443; Jenkins v. Stetstm, 9 Allen, 128; People v. Dannai, 77 
N. Y. 45. Judge Story says on this subject: "So even the naked possibility 
or expectancy of an heir to his ancestor's estate may become the subject of a 
contract of sale or settlement; and jn such a case, if made bona fide, for a 
valuable consideration, it will be enforced in equity after the death of the 
ancestor, not indeed as a trust attaching to the estate, but as a right of con- 
tract:" 2 Story £q. Jur., sec. 1040, c. And in a preceding section the same 
learned author said: *' Courts of equity will support assignments, not only of 
ohoses in action, and of contingent interests and expectancies, but also of 
things which have no present actual or potential existence, but rest in mere 
possibility; not indeed as a present positive transfer operative in presenti, for 
that can only be of a thing in esse; but as a present contract to take effect and 
attach as soon as the thing comes in esse: " Id. , sec. 1040. So Lord Chancellor 
Westbury, in delivering his opinion iu the house of lords, in the case of ffol' 
royd V. Marshall, 10 H. L. Cas. 211, said: "But if a vendor or mortgagor 
agrees to sell or mortgage property, real or personal, of which he is not pos- 
sessed at the time, and he receives the consideration for the contract, and 
afterwards becomes possessed of property answering the description in tlia 

Oct 1S41.] Trull v. Eastman. 129 

contract, there is no doubt that a court of equity would compel him to per- 
form the contract, and that the contract would, in equity, transfer the bene- 
ficial interest to the mortgagee or parchaser, immediately on the property 
being acquired. This, of course, assumes that the supposed contract is one 
of that class of which a court of equity would decree a specific performance. 
If it be so, then immediately on the acquisition of the property described, 
the vendor or mortgagor would hold it in trust for the purchaser or mort- 
gagee, according to the terms of 'the contract. For if a contract be in other 
respects good and fit to be performed, and the consideration has been received, 
incapacity to perform it at the time of its execution will be no answer when 
tlie means of doing so aro afterwards obtained.'' 

Aftxr-acquirbd Title, Acquisition of bt Estoppbl. — But, even at 
law, the grantee of one who has at the time of the conveyance no title, may, 
if the deed be with warranty, acquire the estate which his grantor subse- 
quently obtains in the land. This subsequently acquired title inures to the 
benefit of the grantee, on the principle of estoppel, and to avoid circuity of 
action. In discussing this question. Chancellor Kent says: " The deed which 
creates an estoppel to the party undertaking to convey or demise real estate, 
when he has nothing in the estate at the time of the conveyance, passes an 
interest or title to the grantee, or his assignee, by way of estoppel, from the 
moment the estate comes to the grantor, and creates a perfect title as against 
the grantor and his heirs. The estoppel works an interest in the land. An 
ejectment is maintainable on a mere estoppel. If the conveyance be with 
general warranty, not only the subsequent title acquired by the grantor will 
inure by estoppel to the benefit of the grantee, but a subsequent purchaser 
from the grantor, under his after-acquired title, is equally estopped, and the 
estoppel runs with the land:*' 4 Kent Com. 98. And Shaw, C. J., in deliv- 
ing the opinion of the court in the case of Cole v. Haymondf 9 Gray, 218, 
•aid: '*It is a well-established rule of law, that although a deed, as a pres- 
ent conveyance, transfers only the title which the grantor then has, yet if it 
is a deed in fee, with warranty, it has a further operation as a covenant real 
running with the land, by which the grantor and his heirs are bound to make 
it good. So that if the grantor has no good and sufficient title to the estate, 
yet if he or they afterwards acquire a good title, it forthwith inures to the 
benefit of the grantee, to the same extent as if the grantor and warrantor had 
had the same good title at the date of the grant and warranty, to operate by 
way of estoppel, if the action be brought in such form that it may be pleaded 
by way of estoppel; otherwise by way of rebuttal to the claim of any one 
bound by such warranty." The doctrine on this subject here laid down has 
been declared by some writers to be based upon a misconception of the older 
English authorities, and to be incorrect in principle. See American notes to 
2 Smith's Lead. Cas. 275 et seq,; Rawle on Covenants, pp. 266 et aeq., 384 
tt seg. But whatever doubts may exist as to the origin of the rule, it ia now 
too firmly established in this country to be likely to be repudiated. The fol- 
lowing cases fully sustain the rule as laid down in the extracts quoted from 
Kent and Shaw: Knight v. Thay^, 125 Mass. 25; Irvme v. Irvine^ 9 WalL 
625; O'Bamum v. Paremour, 24 Ga. 493; Jarvia v. Aihens, 25 Vt. 635; Bank 
of Utica v. Afersereau, 3 Barb. Chan. 528; Jackson v. Hubble, 1 Cow. 613; 
Goehenour v. Mowry, 33 HI. 331; Kvng v. OU9on, 32 Id. 348; Reeae v. Smithy 
12 Mo. 344; Jackson v. Wright, 14 Johns. 193; Kimball v. Schof, 40 N. H. 
190; Crocker v. Pierce, 31 Me. 177; Churchill v. Terrell, 1 Bush, 54; Broad- 
weU V. PhiUips, 30 Ohio St. 255; Wiesner v. Zaun, 39 Wis. 188; House v. 
MeCormiek, 57 N. Y. 310; Burtners v. Keran, 24 Gratt. 42; Power's Appeal^ 
Am. Dso. Vol. XXXm-V 

130 Hunt v. Hunt. [Maa&L 

63 Pa. St 443; Washabaugh v. Bntriien, 34 Id. 74; McCtuker t. McBvey, » 
R. L 628; S. C, 11 Am. Rep. 205; Doe v. DwodaU, 3 Hoost. 300; S. Q, 11 
Am. Bep. 757; Comatoek t. SmUh, 23 Am. Deo. 670, and note 673, wher» 
other cases to the same effect are cited and oollected. And in Clark v. 
SlauglUer, 34 Miss. 65, it wua decided that where a husband sold a slave be- 
longing to his wife, who afterwards died without issue, leaving him her heir» 
the title of the pnrchaser thereby became perfect. Bat a mere release or 
quitclaim deed of land will not estop the grantor or releasor from setting uj^ 
a title subsequently acquired, against his grantee or releasee: BeU v. TwiUght^ 
26 N. H. 401; Jackton v. Wright, 14 Johns. 103; Clark v. Baker, 14 GaL 612;^ 
Pelletreauy. Jackson, 11 Wend. 110; Kituman v. LoomiSy 11 Ohio, 475; Pike 
V. 0(^vin, 20 Me. 183; Harriman v. Oray, 40 Id. 537; Dorria v. Smith, 7 Or. 
267, 275; OraJuMm v. Cfraham, 55 Ind. 23; McAUiiter v. J>evane, 76 N. C. 57. 

What Amounts to Warraktt. — ^The case of Fairbanks v. WiiUameon^ 
7 Greenl. 06, so far as it holds that a covenant of non-claim ia a covenant real 
which runs with the land and estops the grantor and his heirs to makedaim, 
or set up any title thereto, was overruled in the case of Pike v. Oaivin, 2^ 
Me. 183. The dedsion in the last-mentioned case was, that where one haa 
made a oonveyanoe of land by deed containing no covenant of wanranty, aa 
after-aoquired title will not inure to the grantee; nor wUl the grantor be es- 
topped to set up his title subsequentiy acquired, unless by doing so he be 
obliged to deny or contradict some fact alleged in his former conveyanoe. 
The court in this case seem to regard the covenant of non-claim as not 
amounting to a covenant of warranty. But Mr. Bawle, in his work on Cov- 
enants, page 216 (4th ed.), says: " So too with respect to a covenant already^ 
noticed as sometimes employed on this side of the Atlantic, but rarely, if 
over, in England, called the covenant of non-claim. As a general rule, no- 
distinction has in any way been taken between this covenant and the ordi- 
nary covenant of warranty. Both are, in general, held to have the same op- 
eration by way of estoppel, both equally possess the capacity of running with 
the land, and confer the same rights as to a recovery in damages." In th» 
subsequent case of Cote v. Lee, 30 Me. 302, no distinction was observed between 
the covenant of non-claim and that of warranty. And in the still later case 
of Curtis V. Curtis, 40 Id. 24, it was decided, following on that point the an* 
thority of the principal case, that a release by an heir apparent, of his estate 
in expectancy, with a covenant of non-claim, is, if made fairly, and with the 
consent of the ancestor, a bar to the releasor's claim thereto, by descent or 
devise, after his ancestor's death. Generally speaking, the covenant of non- 
claim is treated as equivalent to the ordinary covenant of warranty: Lamh 
V. Kantm, I Saw. 238, 242; KimbcUl v. Blaisdell, 22 Am. Deo. 476; Gee v. 
Moore, 14 CaL 472; Van Rensselcbor v. Kearney, 11 How. (U. S.) 207. 

Hunt v. Hunt. 

[8 MxixuLr, 176.] 

Dbmandamt in Writ of Right may Recoveb undkb TnuB bt Dm^ 
SEISIN, unless the tenant can show a better title. 

Dabrbin Sbisin is a Qood Plea in a writ of right. 

Where Son, on his Father's Becoming Insane, Takes Manaosment of 
his farm, with the consent of the mother and the rest of the family, h» 
is oonsidered as occupying under his father, and the profite teken by hin^ 

Oct 1841.] Hunt v. Hunt. 131 

dming hia fiktbor^s liie-time are oonsiclered m taken for the letter's nee 
and benefit. And in saoh a case the seiein of the father will be ooniid- 
ered as oontinning up to the time of his death. 
Whbb a Father Bxoamk iNaANs A2n> Ohb of his Sokb Took thb Mah« 
AOUIKNT of his farm during the rest of his father's life-tame, and re- 
mained in possession of it for thirty years afterwards, these facts do not 
warrant a presumption of a conyeyanee to him by the father, or of a re- 
lease to him by the other heirs, subsequent to their father's death. 

Wbtt of right. The demandant was the son of the John 
Hunt mentioned in the opinion, and the tenant was the widow 

and devisee of Ebenezer Hunt, another son of said John Hunt, 


and who is also mentioned in the opinion. Said John Hunt 
was sometimes insane and sometimes capable. Ebenezer man- 
aged the farm when his father was insane, and when the latter 
was sane he managed it himself. There was a verdict taken 
for the demandant, subject to the opinion of the whole court 
upon.the facts and evidence. The other fiicts appear from the 

JRobinaon and Choate, for the tenant. 

Farley and B. O. Colby, for the demandant. 

By Court, Wildk, J. This is a writ of right, in which the 
demandant demands possession of an undivided fourth part of 
a certain tract of land described in the writ. The action was 
commenced in the year 1839, before the limitation of real actions 
by the Bev. Stats. , c. 119, took effect. The demandant counts on 
the seisin of John Hunt, his father, within forty years before the 
commencement of the action; and the first question to be de- 
cided is, whether the seisin of John Hunt is satisfactorily proved 
by the evidence reported. No record title in John Hunt nor in 
any other person was produced at the trial; but it was proved by 
sundry aged witnesses, that from seventy to eighty years since, 
and as far back as the memory of any of the witnesses extended, 
the farm in question was in the possession and occupation of 
the said John Hunt; that he lived on it with his wife and chil- 
dren, taking the profits, and continued his residence there, until 
his death in 1807. There is no evidence of any prior possession 
or elder title; and it can doubted that proof of such an 
ancient and long-continued possession and occupation is good 
prima facie evidence of a seisin in fee simple. In a writ of right, 
as well as in a writ of entry, a title by disseisin is a good and 
sufficient title, unless a better can be shown by the tenant: Lit., 
sec. 478. If, then, John Hunt had no better title, he had a good 
title by disseisin; for we consider the evidence as establishing 

132 Hunt v. Hunt. [Mass. 

the fact beyond controversy, that he was in possession of the 
premises for more than forty years, and died seised; for there is 
no proof tliat he was disseised by his son Ebenezer, under whom 
the tenant claims. His possession was not adverse, and must 
he presumed to be under his father; and if. he had concurrent 
possession with his father, that certainly would not constitute 
« disseisin. 

It has been objected, that since the time when Ebenezer first 
l)egan to take the principal management of the farm, the esplees 
were taken by him; but considering him as occupying under 
liis iaiher, this is not a valid objection. The taking by the ten- 
ant is the taking by the landlord: 4 Dane's Abr. 29, 30. And 
from the whole evidence, there can be no question that the pos- 
session or occupation by Ebenezer was by the permission of his 
father, so far as he was capable of giving permission, and with 
the acquiescence of his mother and the rest of the family. We 
are of opinion, therefore, that the seisin of John Hunt contin- 
ued up to the time of his death, and that during his life- 
time, the profits of his farm must be considered as taken by him, 
^r for his use and benefit. 

^Che next question to be determined is, whether Ebenezer Hunt 
liad, after the death of his father, gained a good title by dis- 
seisin. He continued in the possession of the premises for mqre 
than thirty years after that event; and the tenant's counsel con- 
tend that he thereby gained a good title, by disseisin, against the 
other children and heirs of John Hunt. This question involves 
another, namely, whether the plea of darrein seisin is a good 
plea in a writ of right. This is said to be doubtful; but the 
grounds of doubt do not seem to be stated with precision, nor 
to be satisfactory. Eoscoe, in his Treatise on Real Actions, vol. 
1, p. 206, says, that " the reason given against such a plea is, 
that the tenant may tender the demi-mark, and have the ances- 
tor's seisin inquired into." This reason for the doubt is not 
stated by Judge Jackson, in his Treatise on Heal Actions, p. 285; 
and, upon the authorities, the doubt does not seem to rest on 
any reasonable and substantial ground. In the writ of mori 
d'ancestor, informed on in the descender, in nuper obiUy and in 
a writ of cosinage, as well as in a writ of entry, it is a good plea 
that the demandant himself was seised after the death of the an- 
cestor: Boscoe, ubi sup. And we think, notwithstanding the 
doubts suggested, that it is a good plea or defense in a writ of 
right. The tenant, however, has failed to make out any such 
defense. There is no evidence that the demandant ever entered 

Oct 1841.] Hunt v. Hunt. 133 

the premises after the death of his father, and became actually 
seised of his share therein; and before the revised statutes, he 
could not Tnaintain an action, counting on his own seisin. In a 
writ of entry, or a writ of right, the demandant must count on 
an actual seisin, and a seisin in law is insufficient. Before entry 
by the heir, after the death of the ancestor, or an equivalent act» 
he can not maintain an action of trespass, or a writ of entiy on 
his own seisin, unless the land be vacant and unoccupied: Plowd. 
142;' 2 Eol. Abr. 553; TFe/& v. Prince, 4 Mass. 67; Dally y. King, 
1 H. B. 1; Bac. Abr., Trespass, E. 3. 

The law in relation to the question under consideration, is 
correctly stated in 2 Preston's Abstracts, 345: "The writ of 
entry siir abatement," he says, '' must necessarily be grounded 
on the seisin of the ancestor; and therefore fifty years is the 
limitation within which a writ of entry sur abatement must be 
brought. It does not seem to have ever been supposed that the 
disseisin was to the heir, so as to bar him, unless he should 
bring his action within thirty years." Nor can it be maintained^ 
as a ground of defense, that by the entry of Ebenezer Hunt» 
after the death of his father, all the heirs became actually seised; 
because, unless his entrv was adverse to the claims of the other 
heirs, there is no evidence of a disseisin; and on that ground 
the defense fails. 

The remaining ground of defense in support of the tenant's 
title, and that on which his counsel seem principally to rely, is 
the presumption arising from the long possession of Ebenezer 
Hunt, that the premises were conveyed to him by his father, or 
that the other children and heirs have relinquished their shares 
therein to him, since the death of their father. As to the pre- 
sumption of a deed from the father, we think there is clearly no 
ground on which it can be maintained. Nor was it much relied 
on at the argument. The father had not the mental capacity to 
make a legal conveyance of his property, or any other binding 
contract; and the occupation of Ebenezer with his father, is no 
ground for the presumption of a conveyance from him, had he 
been of a capacity to make a legal conveyance. Ebenezer, for 
a number of years before his father's death, had the principal 
but not the sole management of the farm, as the demandant 
had, before the return of Ebenezer from Ackworth; but the 
father and the mother assisted. This joint or mixed possession 
and occupation is certainly no foundation for the presumption 
of a grant. 

1. Browning t. SetUm, 

la* Hunt v. Hunt. [Maaa. 

The question then is reduced to this, namely, whether the 
possession of Ebenezer, after the death of his father, is a suffi- 
cient foundation for the presumption of a grant or release from 
the other children. It must be admitted that there is no legal 
or artificial presumption of any such grant. " In general," as 
remarked by Story, J., in Rlcard v. Williams ^ 7 Wheat. 110, 
*Mt is the policy of courts of law, to limit the presumption of 
grants to periods analogous to those of the statute of limita- 
tions, in cases where the statute does not apply. But where the 
statute applies, it constitutes ordinarily a sufficient tiUe or de- 
fense." So Lord Mansfield says, in Eldridge v. Knotty Cowp. 
216, '* there is no instance of setting up any length of time 
within the limitation fixed by the statute, as a bar to the de- 
mand." And so Aston, J., remarked, in the same case, that 
mere length of time unaccompanied with other circumstances 
ought not to alter the limitation fixed by the statute and set up 
another. If the law were otherwise, it would effectually alter 
and do away with the intended operation of the statute of limi- 
tations. That impliedly declares, that in a writ of right no dis- 
seisin or adverse possession shall be a bar unless it oontinues 
for forty years. 

Now in the present case there are no circumstances superadded 
to the adverse possession of Ebenezer Hunt — ^if his possession 
were adverse — ^leading to the conviction or belief that he ever 
had a grant from the other children and heirs. On the contrary, 
the circumstances, which were proved, rather tend to weaken 
the presumption of any such grant. There would have been 
more reason for the presumption, if the occupation had been by 
a stranger. Ebenezer had a right to continue his occupation aa 
one of the heirs; and there is no clear proof that his occupation 
was intended to be adverse to the claims of the other heirs. He 
had made considerable advances during the life of his father, in 
repairing the house, building a bam, and for other expenses, for 
which he expected, probably, to be reimbursed from the profits 
of the farm. To this the other heirs could not reasonably ob- 
ject. And this may account for their forbearance to claim any 
share of the profits. Another circumstance, suggested by the 
demandant's counsel, might have some influence to prevent them 
from inteiposiQg any such claim. It appeared that Ebenezer 
Lad acquired a large estate, which his brothers and his sister 
might reasonably expect to inherit; and if so, they might have 
been unwilling to advance claims that perhaps might give offense. 
But whether these suppositions are probable or not, we 

Oct 1841.] Samson v. Thoknton. 135 

{here is no eyidence to warrant the inference, tbat a oonyejanoe 
to Ebenezer from the other heirs has eyer been made. The 
probability of such an act is not sufficient. The evidence to 
mipport a natural presumption of a fact must be such as to lead 
the mind to a conscientious belief of its existence, beyond a rea- 
sonable doubt. This the eyidence in the present case fails to 
do; and, as it seems to us, it fails to establish a reasonable 
probability of any such conveyance as is set up by the tenant to 
defeat the demandants right. That right is not barred by the 
statute of limitations, and ought not, therefore, to be defeated 
by any presumption or inference not supported by convincing 
and satisfactory evidence. 
Judgment on the verdict. 

Gted in Pee2e T. Gftever, S Allen, 92, to the pobt tluii a tanant in a writ of 
mttry can not aet np an outstanding title in a atrangor, ezoept for the mere 
porpoae of rabntthig the demandant's evidenoe of aeiain. 

Sambok v. Thobsiton. 

[S IfsTOAur, 376.] 

OuaDTAii PBomaoB, wmur Indobsxb is Gonsideked ak. — ^Whero the payee 
of a promiaaory note has taken it and carried it away, bat, on the same or 
Uie next day, retoma it to the maker with a request to have him prooore 
an indorser thereon, which the maker does, the indorser so obtained will 
be considered an original promirar, and aa saoh jointly and severally 
liable with the maker. 

BxiODTiON OF 0XXD AND Dkuvibt THXRBor TO EsaiSTEB for the purpose of 
registration, without delivery to the grantee, vests no title in him, and 
nothing passes thereby. 

AssuxpsiT, in which the declaration charged the defendant as 
an original promisor. The note was signed by Benjamin Bus- 
sell and indorsed by the defendant. Plea non aamimpsU, The 
other facts are sufiSdently stated in the opinion. 

Colby and Clifford^ for the defendant. 

Coffin and Elioi, for the plaintiff. 

By Court, Shaw, C. J. Assumpsit on a promissoxy note, 
against the defendant as indorser, who, not being the payee of 
the note, if liable at all, must be held to stand in the character 
of an original joint promisor and surety : Hunt v. Adams, 5 Mass. 
858 [4 Am. Dec. 68]; S. C, 6 Id. 519. Many cases have since 
been decided upon the same principle. But to charge an in- 
dorser on this ground, it must appear that he was an original 

136 Samson v, Thornton. [Mass. 

promisor and undertaker with the prmcii>al. If after a note is 
deliyered, and the contract complete, a person intending to add 
to the strength of the note by pledging his own credit, should 
indorse it, this would be a guaraniy, a distinct and collateral 
contract, and would require a new consideration to support it. 
Whereas, an original promisor and surety is deemed in law to 
participate in the original consideration, and to be bound 
jointly with the princix)al. This distinction is perfectly well 
established in this commonwealth, by the decisions which were 
cited by the defendant's counsel. The only question, therefore, 
on this part of the case, is, whether the defendant was such 
original promisor, or whether he became an indorser afterwards, 
so that, if bound at all, he was bound only as a guarantor. It ' 
appears that Bussell was indebted to the plaintiff in the sum of 
one thousand six hundred dollars or one thousand seven hun- 
dred dollars, being the amount due\o the plaintiff, as master of 
a vessel, on settlement of a whaling voyage. The plaintiff re- 
ceived one note for six hundred dollars at sixty days, which he 
got discounted at a bank, and it was paid at maturity by the 
promisor. For the balance, the note in question was given, 
payable on demand with interest. Bussell made out the plaint- 
iff's account; and signed the note in question for the balance; 
he then handed them to Samson, and he took them away. It 
is stated by the witness, that at that time he manifested no dis- 
satisfaction; but it is not stated that he agreed to accept the 
note without other security. If he took these papers, not as 
upon a final and concluded settlem^it, but for a general pur- 
pose, as for inquiry and examination, then he would not be 
bound by the mere act of receiving them; and that he did thus 
take them provisionally is to be inferred from the fact that he 
soon came back, and expressed his wish to have a surety. And 
that it was so understood by Bussell may fairly be inferred from 
the readiness with which he received back the note to obtain an 
indorser. In this respect, the case differs from the late case of 
Ilsley V. Jewett, 2 Mete. 168, where the note had been delivered and 
accepted, and where the maker got it back into his possession, 
for a special purpose, and then refused to redeliver it. It was 
held to be a good and complete contract notwithstanding. It 
was delivered by one party and accepted by the other, and the 
promisee never consented to give it up. 

But there is another view. Suppose when Samson brought 
the note back, and though delicately, yet actually, asked for a 
surety, Bussell had said '' no, the note has been accepted, and 

Oct 1841.] Samson v. Thornton. 137 

the account is settled, and you are bound by it." Supx>ose be 
ms rigbt in that respect, and might have refused to take back 
the note; yet in fact he did not do so; but, on the contrary, ac- 
ceded to the prox>osal, and took the note back. He had no 
motiye to do otherwise, because the plaintiff held the note on 
demand, and had the same power to demand and compel pay- 
ment or security for the note, which he would have had for the 
account, if it had not been settled by note. But we consider 
that by acceding to the plaintiff's request, and taking back the 
note, in order to furnish the plaintiff with a surety or indorser, 
the parties by mutual consent rescinded that contract, so far as 
to treat the negotiation as still open, and when the note was in- 
dorsed and redelivered, it was the original contract of both the 
promisor and indorser, made upon the same consideration; and 
that the defendant became liable, as such promisor and surety, 
without any new consideration. 

But there was another ground of defense, namely, that the 
note had been paid and satisfied by the principal, by the convey- 
ance of a lot of land. That there was an agreement for such a 
conveyance in satisfaction of the note seems to be established by 
proof; but the question is, whether it was in fact conveyed so as 
to operate as a satisfaction. Bussell testified that he agreed to 
convey, and the plaintiff to purchase, a lot of land at thirty 
dollars a rod, which would considerably exceed the amount of 
the note, and that the note was to go in part pay. 

It is necessary, for the purpose of deciding this question, to 
compare the dates. The deed bears date May 81, 1833. It was 
acknowledged December 26, 1833, and was recorded December 
80, 1833. The plaintiff went on a voyage to sea August, 1883, 
and returned in February, 1836. The attachment of the land, 
by the Marine bank, as the property of Bussell, was made on 
the twenty-sixth of January, 1835. The question is, whether 
the title was at that time vested in the plaintiff, so that he could 
resist that attachment and the levy of execution afterwards made 
in pursuance of it. It is very clear, that the deed was not de- 
livered to the plaintiff before he went to sea, and that it was not 
completed. The witness gives as a reason for it, that the quantity 
of land had not been ascertained by admeasurement, and of course 
the amount of the purchase money was not ascertained. But it 
was not acknowledged till December, 1833, long after the plaint- 
iff had gone, and it vras then in the hands of the grantor. He 
then, having become embarrassed, acknowledged the deed with- 
out inserting the consideration, and sent it to the county regis* 

138 SaIJSON v. THORNTOh [MaS3. 

tiy. This was the grantor's own act. A deed takes effect by 
deliTexy. An execation and registration of a deed, and a deliv- 
ery of it to the register for that purpose, do not vest the title in 
the grantee. Nothing passes by it: Maynard t. Mdynard^ 10 
Mass. 456 [6 Am. Dec. 146]. 

This is distinguishable from the case of Hedge v. Drew^ 12 
Pick. 141 [22 Am. Dec. 416], where the father proposed to the 
daughter to execute a deed to her, and to leave it with the reg* 
ister for her use, and she expressed her assent to, and satisfac- 
tion with, the arrangement. She thereliy made the register her 
agent to receive the deed. Here was no agent to accept the 
deed, no delivery to give the deed effect as a conveyance, and 
no ratification until long after the attachment was made. 

The fact that Bussell entered the note as paid in his note- 
book proves nothing more than his opinion. He no doubt in- 
tended honestly to comply with his agreement, and convey the- 
land, and did what he could do to accomplish it; and probably 
thought that he had legally done it. If he was right in this 
belief, the note was paid; he probably thought so, and entered 
it accordingly. 

On the whole, the court are of opinion, that the defendant 
was an original promisor; that the note was not paid by a valid 
conveyance of the land, and that the plaintiff is entitled to 

Judgment for the plaintiff. 

iHDOBsnfBHT ON NoTX AT Tim ov BxiouTioK, EFvaoT ov: See BrigH 
V. Ooirptmitr, 34 Am. Deo. 43% note 433; also note to Per&M v. Cbtfiii, 29 Id. 
297, where tide sabjeot is disooBsed fally. See also Riehardmm ▼. i^tneobi, 5 
Meto. 203; UniUm Bank qf WeynunUh ▼. WUlia, 8 Id. 509; Bryani ▼. ifiuC- 
Man, 7 Oiuh. 113; and Wright ▼. Mone, 9 Qrsy, 338, all citing the principal 

The pbinoipal gasb is cited in Howe v. Merrill, 6 Gosh. 83, to the point 
that where a defendant's name is not put on a note until after its negotiation 
to a creditor, the defendant oonld in no sense be regarded as an original party; 
and in Euex Oo, ▼. Edmonda, 12 Qiay, 278, to the point that some parol evi- 
dence is admissible to show when the name was put on the note. 

Dbbd BziouTED AND PuT ON Bbcobd bt Qrantor does not pass title 
without some further act of delivery and acceptance: See Brabrook v. BoBkm 
F. a 8, Bank, 104 Mass. 230; ParmeUe v. Shnpwn, 5 WalL 86, both citing 
the principal case. 

Mkui Rboobdino of Dud dobs not Operatb as Deuvbbt: See Hawbe§ 
T. Pike, 105 Mass. 563» citing the principal case; Ohea$ v. Gtet, 21 Am. Dec 
850, note 361. 

Nov, 1841.] Commonwealth v. Loud. 139 

Commonwealth v. Loud. 

[8 Mbxoalv, 828.] 

ObvnonoK bdobx JnsnoB ov Peaob, and Perfobmakob ov Smrnraa 
Ikposbd, oonBtitate a bar to an indictment for the same offense, althongh 
the judgment upon which the sentence was rendered waa ao defeotiT* 
that it woald have been reversed on error. 

InnoTioaiT for larceny. The opinion states the case. 
MaUeU and Kingsbury, for the defendant. 
Austin, attomey-generdl, for the commonwealth. 

By Court, Putnax, J. This case comes before us on excep- 
tions to the ruling of the court of common pleas, and we decide 
it on the last which appears to be made, namely, that the de- 
fendant offered to prove the record and proceedings of a prior 
conviction for the same offense, before a justice of the peace, as 
a bar, but that the court ruled that the same did not constitute 
a bar to this prosecution. And the attorney-general admits 
that this case is to be taken and considered by the court, as if 
that plea had been formally made with proper averments; that 
the larceny of which the defendant was convicted was of the 
same property, for the stealing of which he has been again 
indicted and convicted; and that the defendant submitted to 
the former judgment, and performed the sentence. But it is 
contended for the commonwealth, that the supposed former con- 
viction was not only erroneous, but was merely void. In the 
case of CommomoedUh v. PhiUips, 16 Pick. 211, it was held, that 
a conviction, on a complaint in similar form to that which was 
used in the case at bar, was erroneous; and the judgment was 
arrested. The defendant excepted to that judgment, as he well 
might. But in the case at bar, the defendant waived any ex- 
ception to the judgment, complaint, proceedings, or sentence; 
and he has performed the sentence. 

The commonwealth now desire to have those proceedings 
held for nothing, so that, by an indictment in technical and 
legal form, the defendant may be again tried and punished for 
the same offense of which he has been informally convicted. 
We can not think that those proceedings before the magistrate 
were merely void. On the contrary, it is reasonable to believe, 
that the complainant intended to prosecute for a larceny. The 
defendant understood it so, and so did the magistrate. Now 
the judgment that the defendant was guilty, although upon 
proceedings which were erroneous, is good until the same be 

140 Oriental Bank v. Haskins. [Masa 

reversed. This rule of criminal law is well settled. It was the 
right and privilege of the defendant to bring a writ of error, 
and reverse that judgment; which writ would have been sustained 
by the case before cited of Commonwealth v. Phillips ; but he 
might well waive the error and submit to and perform the judg- 
ment and sentence, without danger of being subjected to an- 
other conviction and punishment for the same ofifense: Vaux'8 
Tose, 4 Co. 45; 2 Hale P. C. 251; 2 Hawk, c. 36, sec. 10 et seq.; 
1 Stark. Crim. PI. (2d ed.) 329, 330. 

The evidence which was offered, we think, constituted a good 
defense to the indictment. The bill of exceptions is sustained. 
Therefore the verdict should be set aside, and the defendant 
should go thereof discharged, without day. 

Cited in CcmmonweaUh v. KMi^ 8 Meto. 532, to the point that where a 
defendant sabmitted to an enxmeous conviotion and suffered the pnniahment, 
the judgment under which the penalty waa inflicted will not be treated as a 
nullity, but will stand good till reversed; and in Wood v. Souikwkkf 97 Mass. 
85d, to the point that a complaint or an indictment may set forth an offense 
sufficiently to make a conviction or acquittal a bar to a second trial of the 
defendant for the same acts, although it would be adjudged bad on motion to 
quash or on demurrer. 

Obiental Bane v. Haskinb. 

[3 Hbtoaut, 832.] 

BiooKnABT EvmsNGB MAT BB GivEN, OF CONTENTS ov Papsb whioh bas 
been superseded by execution of a new agreement between the parties 
thereto, touching the same subject-matter, where the party to whom it 
was surrendered makes affidavit* that he has made diligent search for it, 
but can not find it, and that be supposes it to have been destroyed. 


evidence of fraud, if not satisfactorily accounted for, is not fraud per se, 
nor conclusive evidence of it. And there is no distinction, in this re- 
spect, between cooveyances of real and of personal estate. 
OowETANCB Fraudulent as against Gbeditobs or against subsequent 
purchasers is voidable only, not abeolutely void, and may be purged ol 
the fraud by matter ex poit /ado, whereby the fraudulent intent is 
abandoned, and the conveyance confirmed for a good and adequate con- 
sideration bonajlde, 

Wbtt of entry. The demandants claimed under a levy of an 
eoceoution against John Haskins, and the tenant claimed under 
a deed from the same person. The demandants attempted to 
impeach this deed as fraudulent against creditors. The jury 
f oimd for the tenant. The other facts sufficiently appear fmm 
the opinion. 

Nov. 1841.] Obiental Bank u HASKma 141 

B. B. Curtis and Clarhe, for the demandants. 
ChoaJte^ for the tenant. 

By Court, Wildb, J. Seveial exceptions have been taken to 
the ruling of the court at the trial, as to the admission of evi- 
dence, and to the instructions given to the jury. These excep- 
tions have been taken into consideration by tiie court, after hear- 
ing the ai^^uments of counsel, and the opinion we have formed 
thereon I will now briefly state. 

The tenant was permitted to prove by parol the contents of a 
certain paper, being a written agreement whereby he had agreed 
to reconvey the demanded premises to the witness, on a certain 
contingency. It was testified by the witness, that this paper 
had been given up by him to the tenant, after they had made a 
new agreement by which the witness relinquished all claim, 
under said written agreement, for a reconveyance. And the ten- 
ant thereux>on made affidavit, that he had made diligent search 
for said paper and could not find it, anid that he 8upx>osed it was 
destroyed. This evidence was decided to be sufficient to prove 
the loss or destruction of the written agreement, so as to c^dmit 
secondary evidence of its contents; and we are clearly of opin- 
ion, that it was rightly so decided. As between the parties, the 
paper had become of no importance, by reason of the new agree- 
ment; and the destruction of it, if it was destroyed, would fur- 
nish no proof nor create any suspicion of a fraudulent design in 
its destruction. If it had continued a subsisting security, and 
had been voluntarily destroyed, it might have admitted a differ- 
ent inference, and the case of Blade V. Noland, 12 Wend. 173 
[27 Am. Dec. 126], might perhaps have been applicable. But 
the primary evidence in this case repels the inference there made, 
and proves, as satisfactorily as the nature of the case admits, 
that the paper had been lost or destroyed; and in either case, 
the secondary evidence was admissible. 

The next question to be determined is, whether there are any 
legal exceptions to the instructions given to the jury. It is ob- 
jected in the first place, that the evidence disclosed a secret trust 
in the conveyance from John Haskins to the tenant, which ren- 
dered it fraudulent against creditors, and that the evidence of 
the fraudulent intent vras conclusive. That this is not the law 
in respect to the sale and conveyance of personal property is un- 
questionable. A secret trust inconsistent with the terms of a 
sale of property is evidence of fraud, if not satisfactorily ao« 
counted for; but it is not fraud per se, nor conclusive evidence 

142 Oriental Bank v. HASKiNa [Mas^. 

of fraud. But it is contended, Chat there is a distinction be- 
tween the convejance of real and personal estate; and there are 
dida in 8upx>ort of such a distinction. But they do not seem to 
us to be well founded on principle or authority. The decision 
in the case of CiUler t. Dickinaon^ 8 Pick. 886, is expressly to 
the contmiy. In that case, it was decided that an absolute con- 
▼ejanoe of land, the gnuator taking back a writing not under 
seal, for a reconveyance on a condition, was not per se fraudu- 
lent as against creditors. That was a case in all respects similar 
to the present, so far as it relates to the question under consider- 
ation, and is dedsive. A question somewhat similar has been 
much discussed, and upon which there are conflicting decisions. 
It was laid down by Bnller, J., in Edwards t. Harben, 2 T. B. 
696, as a general rule, that in the transfer of goods and chattels, 
the possession must accompany and follow the deed, and that an 
absolute conyeyance without possession, was in point of law fraud- 
ulent, and not merely eyidence of fraud. That this was not consid- 
ered to be the law in ancient times appears yeiy clearly by Jhoyne^B 
case, 3 Go. 80. It was in that case held, that asecret trust, and 
the x>ossession of the goods sold by the vendor after the sale, were 
only badges of fraud and were not fraudulent per se. And so 
it was considered in several subsequent cases. And so, I think, 
the law is now held' in England, notwithstanding the case ol 
Edwards v. Harben, and some other cases. In this common- 
wealth, it has been uniformly held that a sale of goods may be 
valid, although the possession does not accompany and follow 
the conveyance; that the subsequent possession by the vendor is 
evidence of a secret trust and collusion between the parties, to 
be submitted to a jury; but that it is not conclusive evidence of 
fraud: 16 Mass. 247;' 16 Id. 279 ;« 1 Pick. 296," 399;* 2 Mete. 268.* 
See also Cowp. 432;' 2 Bulst. 226;' 2 Bos. & Pul. 60,^ By. & 
Moo. 312;' 4 Bam. & Ores. 664;'' 1 Mau. & Sel. 264;" 4 Taunt. 
823;" 8 Id. 838;" 3 Barn. & Add. 498;" 7 Wend. 438;" 8 <3ow» 
166;" 8 Id. 463;" 3 Yerg. 476," 602." 

Another objection to the instructions to the jury is much relied 
on by the counsel for the demandants, in regard to which theirs 

1. Broola t. P&wers: S. O., 8 Am. Deo. 09. 11. Leonard y. Baker. 

2. Nen Bmgland M. Im, Co. y. CkamdUr, 19. fFofHiu t. Birtk, 
8. BartleU t. WUUam», 18. Jetepk y. Ingram. 

4. BadloMV. Tucker; 8. 0., 11 Am. Deo. 903. U. MartindaU w. BooOL 
6. Briggt r. Parkwum. 16. Jackeon y. Timmttmam, 

6. Cadoffon r. KemneU. 16. BiueU y. Hopkim; 8.0^10 Am. Dto. SHH 

7. Stone r. Ombham. 17. Seward t. Joefewm. 

8. Kidd y. BaioUnaon. 18. Oallen y. Thomtpeon; fL 0., U Aai.]>M, Ml* 
. 8. Baatipood y. Brown, 10. Parwin y. Hamdieg. 

10. Latiwur t. Bateon. 

Nov. 1841.] Obiental Bank u Haskins. 143 

tare several confliotiiig decisions in which the question has been 
vexj folly discussed. The objection is to that part of the charge 
in which the jury were instructed, that although they might be 
of opinion that the conveyance to the tenant was originally 
fraudulent as against creditors, yet if they should be of opinion, 
that there was no fraudulent intent in the subsequent settlement 
and adjustment of the concerns between the parties, and that 
there was no intention to delay or defraud creditors, and that 
the transaction was bona fide and fair, then that the transaction 
would purge any supposed fraud in the deed. It is objected 
that the original conveyance to the tenant was absolutely void 
as against creditors, and not merely voidable by them, so that 
no subsequent transaction could purge the fraud. 
This objection is sustained by the cases of Preston v. Gro/ut, 

1 Conn. 627, note, and MerriU v. Meachum, 6 Day, 841. In the 
latter case it was decided that a deed made with an intent to de- 
fraud creditors was absolutely void, and that no subsequent act 
of the parties could render the deed valid against creditors. In 
that case, the deed was not delivered to the grantee when it was 
made; but when it was made known to him, he assented to it, 
and paid an adequate consideration for a part of the land, and 
xeconveyed the residue to the first grantor. The case was de- 
cided upon a supposed distinction between the eflEects on a con- 
veyance, by stat. 13 Eliz., c. 6, and stat. 27 Eliz., c. 4. Two 
of the judges. Smith and IngersoU, dissented from the opinion 
of the majority of the judges, and for reasons, as it seems to us, 
very forcible and convincing. The distinction, however, on 
which these cases were decided, was maintained by Chancellor 
Kent, in Roberta v. Anderson^ 3 Johns. Ch. 871. The question 
was afterwards very fully discussed by Story, J. , in Bean v. Smith, 

2 Mason, 252, and he fully concurred in the opinion expressed 
by the dissenting judges in Connecticut. He considered the 
distinction, on which those cases in Connecticut were decided, 
as entirely novel and unsupported by any previously adjudged 
case, or by any sufficient reason. And the same opinion was 
expressed by Parker, C. J., in Somea v. Brewer, 2 Pick. 198 [18 
Am. Dec. 406]: " Great weight/' he said, '' should be attached 
to the opinion of such men as composed that court, and the 
more, as their opinion is unequivocally approved of and sanc- 
tioned by Mr. Chancellor Kent. Still as their decision runs 
counter to all our practical notions, and to many judicial decis- 
ions in this state; as it was combatted with great force by a very 
eminent member of the Connecticut bench; and as the decree of 

144 Obiental Bane v. HASKma [Mass. 

the clianoellor of New York was reversed in the court of errors^ 
conformably to the opinion of the common law judges of that 
state; we can not think it will be adopted beyond the jurisdic- 
tion of Connecticnt." See also 4 Kent's Com., 8d ed«, 464, and 

TTe entirely concur in the opinions expressed by Chief Justice 
Parker and Mr. Justice Stoiy, and for the reasons by them as* 
signed in the discussion of the question. We think there is no 
such distinction between the 13 and 27 of Eliz., as was main- 
tained by the majority of the court in Connecticut, but that con* 
yeyances, fraudulent as against creditors or against subsequent 
purchasers, are voidable only, and not absolutely void; and that 
if the fraudulent grantee conveys the estate to a bonajide pur- 
chaser for a valuable consideration, the conveyance is good, and 
the first grant will be purged of the fraud. And so we hold 
that such a fraudulent grant may be purged of the fraud by 
matter ex post facto, whereby the fraudulent intent is abandoned, 
and the grant confirmed for a good and adequate consideration 
bona fide: Comb. 222/ 249;' 1 Sid. 183 ,•» 1 New Bep. 332;* 10 
Johns. 185;* 12 Id. 552;* 14 Id. 407;' 1 Johns. Ch. 271.' 
And so it was held in Thonuia v. Ooodtoin, 12 Mass. 140. In 
that case, one who was summoned as trustee had received goods 
under circumstances indicative of fraud, and which would have 
fixed him as trustee; but before the service of process ux>on 
him, he had paid debts of the principal to the amount of the 
goods received, and he was discharged. And a similar decision 
was made in Huichins v. Sprague, 4 N. H. 469 [17 Am. Dec. 439]. 

These decisions are in accordance with the instructions to the 
jury in the present case, and we are of opinion that the excep- 
tions taken can not be maintained. Whether the jury found 
there was any fraud in the original conveyance does not appear. 
But if they did, we think it was competent for them to return 
a verdict for the tenant, if they believed from the evidence that 
the fraud was purged by a bona fide settlement, and a full pay- 
ment for the land, before the plaintiffs' attachment. 

Judgment on the verdict. 

Pabol Evidenob is Apmtpwtblb to Prove Contents ov Lost WBimroi 
See Pruden v. Alden, 34 Am. Deo. 51, note 53, where other cases in this 
series are collected. In Stone v. Sanborn, 104 Mass. 325, the principal case 
is cited to the point that a party who willfully destroys a document will not 

1. Porter t. Clinton, 6. Jocfeton t. Hemry; S. O., 6 Am. Deo. i 

a. SnaH T. WilliafM. 6. Verplank t. SUrry; S. 0., 7 Am. Dee. Mft 

8. Prodgert r. Lanffham, 7. Jadeton t. WaUk, 

4. J>— T. Martyr, 1 Boe. k P. N. B. 889. 8. Sterry t. Arden. 

Nov. 1841.] Wentworth v. Day. 145 

be permitted to testify as to its contents, antil he has introduced evidence to 
rebat the inference of fraud arising from his act. Bat in Smith ▼. Holyoht^ 
112 Id. 521, citing the principal case, it was decided that where the trial 
judge found that the papers were not fraudulently destroyed, the supreme 
court would not interfere with that finding. 

GoNYETAKCK Pubpobuno TO BE ABSOLUTE, but, in fact, accompanied by 
a secret trust, was held fraudulent and void as to creditors in McCuUoeh ▼. 
JIutckinaon, 32 Am. Dec. 776. See also Birely v. Sudey, 25 Id. 303. 

Retention of PossEbsioN by Vendor on Sale of Chattels, Effect of: 
See Mcuon v. ^oncf, 33 Am. Dec. 243; Eagle v. Eichelberger, 31 Id. 449, and 
note 450, where cases on this subject are collected, and the rule on this point 
in different states is stated: Moore ▼. KeUey, 26 Id. 283, note 284; Oobum r, 
Pickering, 14 Id. 375, note 383. 

Bona Fida Pctbchaser from Fbadulent Grantee oars Good Title: 
See Hood ▼. Fahnestoek, 34 Am. Dec. 489, note 492; Price v. JunHji^ 28 Id. 
685, note 688, where other cases are collected; also Oreen v. Tanner, 8 Meto. 
422, and ChoUau ▼. Jones, 11 HL 322, both citing the principal case. 

LENT AND Void: Murphy v. Marland, 8 Cush. 577, citing the principal case. 
See also note to Eagle v. Mehelberger, 31 Am. Dec. 450. In Lynde v. Mc' 
Oregor, 13 Allen, 181, the principal case is cited as authority for the position 
that if any part of t£e original purpose is fraudulent the whole may be 
avoided, and if part is fradulent it vitiates the whole. And in Orowntnshield 
T. Kittridge, 7 Mete 524, and in Harvey v. Varney, 98 Mass. 120, it is cited 
to the point that a oonveyance fraudulent as to creditors in its inoeptioii may 
be purged of the fraud by matter ex post facto. 

Wbstwokch v. Day 

[8 MsTOAZjr, 862.] 

FkKPEB OF LoflT PROPERTT HAS A LiRN THEREON for the amount of the re- 
ward offered by the loser for its restoration, and he may retain powea 
sion thereof until the reward is paid. 

Tboyeb for a watch. The facts appear from the opinioou 

E. Ames^ for the plaintiff. 

Horner^ for the defendant. 

By Court, Shaw, C. J. Although the finder of lost properly 
on land has no right of salvagei, at common law, yet if the loser 
of property, in order to stimulate the yigilance and industry of 
others to find and restore it, will make an express promise of a 
reward, either to a particular person, or in general terms to any 
one who will return it to him, and, in consequence of such offer, 
one does return it to him, it is a Talid contract. Until something 
is done in pursuance of it, it is a mere offer, and may be revoked. 
But if, before it is retracted, one so far complies with it, as 

Am. Btc. Vol. ZZZyn— 10 

146 Wentworth V, Day. [Masa. 

to perform the labor for which the reward is stipulated, it is the 
ordinary case of labor done on request, and becomes a contract 
to pay the stipulated compensation. It is not a gratuitous serv- 
ice, because something is done which the party was not bound 
to do, and without such offer might not have done: Symmes t. 
Ihufier, 6 Mass. 344 [4 Am. Dec. 142]. But the more material 
question is, whether, under this offer of reward, the finder of 
the defendant's watch, or the father, who acted in his behalf 
and stood in his right, had a lien on the watch, so that he waa 
not boimd to deliyer it till the reward was paid. 

A lien may be given by express contract, or it may be implied 
from general custom, from the usage of particular trades, fronk 
the course of dealing between the particular parties to the trans- 
action, or from the relations in which they stand, as principal 
and factor: (Treen v. JPbnTier, 4 Bur. 2221. In Kirbman y, Shaw-- 
cross, 6 T. B. 14, it was held, that where certain dyers gave gen- 
eral notice to their customers, that on all goods received for 
dyeing, after such notice, they would have a lien for their gen- 
eral balance, a customer dealing vnth such dyers, after notice of 
such terms, must be taken to have assented to them, and thereby 
the goods became charged with such lien, by force of the mu- 
tual agreement. But in many cases the law implies a lien, from 
the presumed intention of the parties, arising from the relation 
in which they stand. Take the ordinary case of the sale of 
goods, in a shop or other place, where the parties are strangera 
to each other. By the contract of sale, the property is consid- 
ered as vesting in the vendee; but the vendor has a lien on the 
property for the price, and is not boimd to deliver it, till the 
price is paid. Nor is the purchaser bound to pay, till the gooda 
are delivered. They are acts to be done mutually and simulta- 
neously. This is founded on the legal presumption, that it waa 
not the intention of the vendor to part with his goods, till the 
price should be paid, nor that of the purchaser to part with his 
money, till be should receive the goods. But this presumption 
may be controlled, by evidence proving a different intent, as 
that the buyer shall have credit, ^r the seller be paid in some- 
thing other than money. 

In the present case, the duty of the plaintiff to pay the stipu* 
lated reward arises from the promise contained in his advertise- 
ment. That promise was, that whoever should return his watch 
to the printing office should receive twenty dollars. No other 
time or place of payment was fixed. The natural, if not the 
necessary implication is that the acts of performance were to be 

Nov, 1841.] Wentwoeth u Day. 147 

mutual and simtiltaneoTis: the one to give up the 'watch, on pay- 
ment of the reward; the other to pay the reward, on receiying 
the watch. Such beings in oi;ur judgment, the nature and l^gal 
eifeet of this contract, we are of opinion that the defendant, on 
being ready to deliTer up the watch, had a right to rec^ye the 
rewud, in behalf of himself and his son, and was not bound to 
surrender the actual possession of it, till the reward was paid; 
and therefore a refusal to deliyer it, without such payment, was 
not a conyersion. 

It was competent for the loser of the watch to propose his 
own terms. He might have promised to pay the reward at a 
giyen time, after the watch should haye been restored, or in any 
other manner inconsistent with a lien for the reward, on the 
article restored, in which case, no such lien would exist. The 
person restoring the watch would look only to the personal re- 
sponsibiliiy of the advertiser. It was for Ihe latter to consider, 
whether such an offer would be equally efficacious in bringing 
back his lost property, as an offer of a reward secured by a 
pledge of the property itself; or whether, on the contrary, it 
would not afford to the finder a strong temptation to conceal it. 
With these motives before him, he made an offer, to pay the 
reward on the restoration of the watch; and his subsequent 
attempt to get the watch, without performing his promise, is 
equally inconsistent with the rules of law and the dictates of 

The circumstance, in this case, that the watch was found by 
the defendant's son, and by him delivered to his father, makes 
no difference. Had the promise been to pay the fiinder, and the 
suit were brought to recover the reward, it would present a 
different question. Here the son deliyered the watch to the 
father, and authorized the father to receive the reward for him. 
If the son had a right to detain it, the father had the same right, 
and his refusal to deliver it to the owner, without payment of 
the reward, was no conyersion. 

Judgment for the defendant. 

Fiin>SB or Lost Pbopxbtt Bntitled to Rewabd: See DeaUmdex ▼. WH- 
mm, 25 Am. Deo. 187, note 189, where the subject is faUy diBcamed; also 
Lwing v. Boston, 7 Mete. 411, and Bffer v. StockweUf 14 Cal. 137, both citing 
the principal caae. 

Finder has Lien to Extent of Ovfeb: See note to Dedondes v. WiUim, 
26 Am. Dec. 188; PregUm v. Neale^ 12 Gray, 223; VaU ▼. DuroM, 7 Allen, 


The pbinoipal case is DssnKoinsHED in Kineaid ▼. EcuUmt 98 Mass. 141. 

148 Nelsox v. Eoynton. [Maaa 

Nelson v. Boynton. 

[3 ICktoalf* 896.] 

Promise ov Son to Pat Note of his Father, in case the promiue ahonld 
diaoontinue an action oommenced on such note, is within the statute of 
frauds, and inyalid unless it is in writing. 


son who saw the officer sign his return thereon is a competent witneaa^ 
and it is not necessxuy that the officer himself should be called, although 
he is within the process of the court. 

Assumpsit on two promissory notes given by the father of the 
defendant to the plaintiff. At the trial J. Bussell was called to 
prove that the real estate of the elder Bojnton was attached in 
the former suit of the plaintiff against him, and testified that 
the writ in that soit was lost; that he wrote the return upon it, 
which was signed by one Savoiy, a deputy sheriff. The defend- 
ant objected, on the ground that Savory was within the process 
of the court, and was, therefore, the proper person to prove said 
attachment. The judge overruled this objection. The other 
facts sufficiently appear from the opinion. 

O. P. Lord^ for the defendant. 

HiUs, for the plaintiff. 

By Court, Shaw, 0. J. Questions depending upon this branch 
of the statute of frauds are often attended with some perplexity, 
on accoimt of the difficulty in l&jmg down a general rule, by 
which to distinguish a guaranty, or mere collateral promise for 
the debt of another, from an original agreement, upon a new 
and independent consideration, when the subject of the contract 
13 the debt or default of another. Our own statute is in terms 
so nearly like the statute 22 Car. 11., to prevent frauds and per- 
juries, that the English authorities upon its construction are en- 
titled to the same consideration, as upon questions of common 
law. The statute, in force when the promise in question was al- 
leged to have been made, was this: " No action shall be brought 
whereby to charge the defendant upon any special promise to 
answer for the debt, default, or misdoings of another person, 
unless the agreement, or some memorandum or note thereof, 
shall be in writing, and signed by the party to be charged there- 
with, or some other person thereunto by him lawfully author- 
ized:" Stat. 1788, c. 16, sec. 1. The provision in the revised 
statutes is in nearly the same terms, and of the same legal effect: 
B. S. 74, sec. 1. 

Nov. 1841.] Nelson v. Boynton. 149 

The object of the statute manifestlj, was to secure the highest 
and most satisfactory species of evidence, in a case, where a 
party without apparent benefit to himself, enters into stipula- 
tions of suretyship, and where there would be great temptation, on 
the part of a creditor, in danger of losing his debt by the insolv- 
ency of his debtor, to support a suit against the friends or rel- 
atives of a debtor, a father, son, or brother, by means of false 
evidence; by exaggerating words of recommendation, encourage- 
ment to forbearance, and requests for indulgence, into positive 
contracts. Some things under the statute seem to be well set- 
tled; and one is, that to bind one person for the debt or default 
of another, there must not only be a promise or memorandum 
in writing, but such promise must be made on good considera- 
tion. The statute does not vary the rule of common law, as \o 
what constitutes a valid and binding promise; to every such 
promise, whether oral or written, there must be a good consid- 
eration. A promise vnthout consideration is bad by the common 
law, as nudum pactum; a promise on good consideration, with- 
out writing, if for the debt of another, is bad by the statute. 
To bind one therefore, for the debt or default of another, both 
must concur: first, a promise on good consideration, and sec- 
ondly, evidence thereof in writing. It is not enough, therefore, 
that a sufficient legal consideration for a promise is proved, if 
the object of the promise is the payment of the debt of another, 
for his account, and not with a view to any benefit to the prom- 
isor. Some expressions of a contrary opinion are to be found in 
Perley v. Spring, 12 Mass. 299; but they seem not to have been 
called for by the case, which vras, no doubt, rightly decided on 
the facts disclosed. 

The terms original and collateral promise, though not used in 
the statute, arc convenient enough, to distinguish between the 
cases, where the direct and leading object of the promise is, to 
become the surely or guarantor of another's debt, and those 
where, although the effect of the promise is to pay the debt of 
another, yet the leading object of the undertaker is, to subserve 
or promote some interest or purpose of his own. The f ormer» 
whether made before, or after, or at the same time with the 
promise of the principal, is not valid, imless manifested by 
evidence in writing; the latter, if made on good consideration, 
is unaffected by the statute, because, although the effect of it is 
to release or suspend the debt of another, yet that is not the 
leading object, on the part of the promisor. 
In case one says to another, " deliver goods to A., and I will 

150 Nelson u Botnton. [Mam. 

pay yoa/' it is binding, though by parol, because A., though 
he reoeives the goods, is never liable to pay for them. But if, 
in this same case, he says, '' I will see you paid," or '' I will 
pay, if he does not," or uses words equivalent, showing that the 
debt is in the first instance the debt of A., the undertaking is 
collateral and not valid, unless in writing: Mataon v. Wharam^ 
2 T. B. 80; Anderson v. Hayman, 1 H. Bl. 120. In these cases, 
the same consideration, which is the consideration ol the prom* 
ise of the principal, is a good consideration for the promise of 
the surety or collateral promisor. The credit is given as well 
upon the original consideration of the principal, as the col- 
lateral promise of the surety, and is a good consideration for 
both: irWolf V. Rabaud, 1 Pet. 500; Ibwndey v. SximraU, 2 
Id. 182. The distinction between the different classes of cases 
is well stated in Leonard v. Vreder^byrgh^ 8 Johns. 29 [5 Am. 
Dec. 317]; and Farley v. Cleveland, 4 Oow. 432 [15 Am. Dec. 

llie statute of frauds, says Mr. Justice Bayley in Edwards v. 
Kelly, 6 Man. & Sel. 209, was aimed at cases, where a debt being 
due from one person, another engaged to pay it for him; but 
where one promised to pay the debt of another, in order to re- 
lease prop^riy in which he or his employers had an interest— as 
to extricate properiy subject to distress, on promising to pay 
the amount due — ^it was neither within the letter nor the mis- 
chief of the act. 

But it has been argued that this case is not within the stat- 
ute, because the consideration of the defendant's promise was 
the discontinuance of an action commenced by the plaintiff 
against the defendant's father, in which he had an attachment 
on real estate; and this, it was argued, brings it within the case 
of WiUiams v. Leper, 3 Burr. 1886, and that class of cases, in 
which the creditor had a claim or lien upon property, which 
was discharged, at the request and for the benefit of the party 
promising. That is the class of cases, where, as expressed in 
Roberts on Frauds, 232, the statute does not apply, if the con- 
sideration '' spring out of any new transaction, or move to the 
party promising upon some fresh and substantive ground of a 
personal concern to himself." In the latter, there is no doubt 
that a good promise may be made by parol, and it is independ- 
ent of the statute. 

In WiUiams v. Leper, 8 Burr. 1886, the landlord was about dis- 
training for rent, and the defendant, a broker, who was em- 
ployed to sell the goods, promised to pay the rent if the plaint- 

Nov. 1841.] Nelson v. Boynton. 151 

iff would forbear to distrain. It was put upon the ground that 
the direct object and purpose of this promise were, not to pay 
the debt of another, but that it was in effect a release and trans- 
fer of the plaintiffs interest in the goods, and that the leading 
object of the promisor was to obtain this transfer, and that the 
discharge of the rent was collateral and subsidiary. 

The case of Castling y. AvJberl, 2 East, 325, throws much 
light on this distinction. The plaintiff had a lien, as broker, 
on policies of insurance, sufficient to indemnify him against his 
liabilities for his principal, and the defendant had an interest in 
haying them transferred to him; and, to induce the plaintiff to 
do so, promised to pay the debt of the principal. It was held 
that this was not within the statute. It was considered that 
though the discharge of the principal would eventually follow, 
yet because it was not the leading object of the transaction, but 
another and quite a different object, viz., that of obtaining the 
policies, it was not within the statute. It was in the nature of 
a purchase of the securities, which the plaintiff held and had 
a right to hold. So in the case of Barrkt t. 2V*uMeU, 4 Taunt. 

The rule to be derived from the decisions seems to be this: 
that cases are not considered as coming within the statute, when 
the party promising has for his object a benefit which he did 
not before enjoy, accruing immediately to himself; but where 
the object of Uie promise is to obtain the release of the person 
or property of the debtor, or other forbearance or benefit to 
him, it is within the statute. In the case of Fish v. Hutchinson^ 
2 Wils. 94, the plaintiff had sued a third person, and the de- 
fendant, in consideration that he would stay his action, prom- 
ised to pay; the original debt still subsisting. It was held that it 
was a promise for the debt of another, and within the statute. 
So in Jackson v. Bayner, 12 Johns. 291, where the plaintiff had 
sued the defendant's son, although the defendant stated, at the 
same time, that he had taken the son's property, and meant to 
pay his debts; it was held not binding without a promise in 
writing. Many other cases upon the construction of the statute 
might be cited to illustrate this distinction. 

It becomes necessary then to apply the rule, thus established, 
to the circumstances of the present case. It appears that in the 
yecur 1834, the plaintiff commenced an action against the defend- 
ant's father, on two promissoiy notes, and attached real estate 
as security; that before the action was entered in court, the de- 
fendant promised the plaintiff, that if he would discontinue his 

152 Nelson v, Botnton [Mass. 

Bait, he would pay him the amount of the notes, and that the 
Boit was aocordinglj discontinued. It further appears that the 
notes were not given up, nor the father discharged. Thej were 
in &ct the same notes, on which the action is now brought. 

Under these drcumstanoes, the court are of opinion that the 
promise was within the statute of frauds; a promise to pay the 
debt of the father; and therefore, though made on good consid- 
eration, was not valid, without a promise or memo;randum of 
the agreement in writing. For, although the effect of the dis- 
continuance of the action was to discharge the attachment, jet 
that was incidental only, and the leading object and purpose 
were the relief and benefit of the father, and not of the son. 
It does not appear that the son had any interest in the estate 
released, or object or purpose of his own to subserve. It is the 
ordinary case of a son becoming surety for the father's debt, in 
consideration of surceasing a suit, or other forbearance, and 
therefore, not being in writing, is within the statute. And al- 
though the forbearance would be a good consideration for such 
a promise, if proved by written evidence, yet the consideration 
was not of such a character as to constitute a new and original 
transaction between these parties. 

The court below, having expressed a different opinion, and 
instructed the jury that this bargain, if they found it had been 
so made, was an original undertaking by the defendant, for a 
new Consideration, and was not therefore within the statute of 
frauds, and also that, notwithstanding the notes were not given 
up, nor the father discharged, still, if there was a consideration 
for the promise, that the promise need not be in writing; this 
court are of opinion, that the verdict rendered for the plaintiff^ 
in pursuance of these instructions, must be set aside, and a new 
trial granted. 

It appears by the dates of the notes, that nearly six years had 
elapsed, when the former action was brought against the father 
on the notes, whether six years had elapsed from the times at 
which the causes of action on them respectively accrued, when 
the suit was discontinued, whether they were attested notes, or 
whether any new promise had been made, to take them out of 
the operation of the statute of limitations, does not appear. If 
at the time of that discontinuance the statute of limitations had 
actually taken effect, so that the discontinuance of the action 
was, in effect, a discharge of the debt, by a discharge of all rem- 
edy to recover it, so that the promise of the son may be consid- 
ered as having procured the discharge of the debt due from the 

Nov. 1841.] Nelson v. Boynton. 153 

father, it might present a difEerent question, on which we are 
not called, bj the present state of facts, to give an opinion. The 
instmctions to the juiy were not given with reference to any 
each case: See 9 Yt. 136.' 

An exception was taken to the admission of the testimonj of 
Bussell, to prove the fact of an attachment in the former suit. 
The writ on file was imdoubtedly the primary and proper evi- 
dence to prove the attachment. But in case of its loss, and 
upon satisfactory proof of that fact, we do not perceive why its 
existence and contents may not as well have been proved by 
that witness, as by the testimony of the officer who served and 
returned it. The testimony of Bussell, in regard to that of the 
officer, can not be deemed secondary. It does not presuppose 
the existence of evidence of a higher nature, which must first 
be adduced. In regard to the writ itself, both are secondary; 
but after proof of its loss, the memory of any one who saw it, 
and can testify to its contents, is of as high a nature as that of 
another, offered to prove the same fact. 

Verdict set aside, and a new trial granted. 

Pbouisb to Pat Debt of Akothbb is not wrniZN thv Statute ov 
FkAUDS and need not be in writing, when the promise ariaes oat of some new 
and original conaideration of benefit or harm between the newly contracting 
partiea: Alger v. ScoviUe, 1 Gray, 397; Jepheraon v. HutU, 2 Allen, 423; Burr 
v. WiUax, 13 Id. 273; Furbish v. Chodiunoy 98 Mass. 300; Ames y. Foster, 
106 Id. 403; WUUs v. Brawn, 118 Id. 138; aiford v. Luhring, 09 111. 402; 
PiaU V. U. S., 22 Wall. 506; Stewart ▼. Hinkley, I Bond, 568, all citing the 
principal case. See also Anderson v. Davis, 31 Am. Dea 612, note 614, 
where other cases are collected. 

Ck>LLATKKAL pROMiSB IS WITHIN STATUTE, and mitst be in writing: Curtis 
y. Brown, 5 Gush. 491; Dows v. Swett, 120 Mass. 323; Davis v. Caverly, Id. 
416; Eddy v. Robertn, 17 HL 507; Hiu v. WeUs, Id. 91, aU citing the princi- 
pal case; Anderson y. Datis, 31 Am. Dec. 612. 

The principal case is cited in Stone y. Waihtr, 13 Gray, 615, and in Clay 
y. WaUon, 9 CaL 334, as explaining clearly the distinction between '* original" 
ftnd "collateral;" and in BngJUman y. fficks, 108 Mass. 247, to the point 
that when property subject to a lien is transferred by the debtor to a third 
person, the latter is not liable to an action by the creditor unless he made a 
direct promise either to the debtor or to the creditor to pay them; and that 
■uch a promise to a creditor who neither gives up his claim against the origi* 
nal debtor, nor any lien upon the property, is a promise to answer for the debt 
of another and mast be in writing within the sl^tute of frauds. 

1. Andsnam y. Dwfit; 8. 0., 81 Am. Dm. 613. 

154 Foster i\ Mansfield. [Mas& 

Foster v. Mansfield. 

[8 Xbxoalf, 412.] 

I>iiD OF Land Exboutbd, AcKNowucDaED, and Dsuyebsd to Thiro 
PSR80N to be by him delivered to the grantee after the grantor's death, 
when 80 deliyeied, takes effect as from the date of the ftrst delivery, and 
divests the estate of the grantor as from that tim& 

Petition for partition. The petitioners claimed to be seised, 
in light of the wife, as tenants in common with the respondent. 
The respondent claimed that he was sole seised. The female 
petitioner and the respondent were the only children and hehrs 
of John Mansfield, deceased. The respondent was the grantee 
referred to in the opinion. The other fiiots sufficiently appear 
from the opinion. 

N, J. Lord, for the petitioners. 

Ward, for the respondent. 

By Oonrt, Shaw, 0. J. Whether, when a deed is executed, 
and not immediately deliyered to the grantee, but handed to a 
stronger, to be delivered to the grantee at a future time, it is to 
be considered as the deed of the grantor presently, or as an 
escrow, is often matter of some doubt; and it will generally de- 
pend rather on the words used and the purposes expressed than 
upon the name which the parties give to the instrument. Where 
the future delivery is to depend upon the payment of money, or 
the performance of some other condition, it will be deemed an 
escrow. Where it is merely to await the lapse of time, or the 
happening of some contingency, and not the performance of an j 
condition, it will be deemed the grantor's deed presently. Still 
it will not take effect as a deed, imtil the second delivery; but 
when thus delivered, it will take effect by relation, from the first 
delivery. But this distinction is not now very material, because 
where the deed is delivered as an escrow, and afterwards, and 
before the second delivery, the grantor becomes incapable of 
making a deed, the deed shall be considered as taking effect 
from the first delivery, in order to accomplish the intent of the 
grantor, which would otherwise be defeated by the intervening 
incapacity: Wheelwright v. Wheelwright, 2 Mass. 454 [8 Am. 
Dec. 66]. The cases there cited fully justify this position; and 
the principal is recognized in Hatch v. Hatch, 9 Mass. 810 [6 
Am. Dec. 67]. 

This principle governs the present case. Mansfield, the 
grantor, being seised of the land, executed and acknowledged 

March, 1842.] Cummings u Abnold. 155 

A deed, and delivered it to Dr. Shed, ^th a request that he 
wotdd deliver it to the grantee, after his, the grantor's, decease; 
which he did. Then, by relation, the deed took effect, as at 
the time of the first deliyery, and divested the estate of the 
grantor, as from that time. 

It is immittAriftl to inquire, what would have been the effect, 
if the grantor had recovered from his sickness and taken back 
the deed. As the estate did not efiEectuaUj pass till the second 
delivery, if that second delivery had been prevented, it would 
probably have been held that it was wholly inoperative. Nor is 
it material to inquire whether such deed would have been valid 
against creditors. Had the deed been executed in the most 
formal manner, and delivered to the son himself, in presence 
of witnesses, if made without valuable consideration, it could 
not avail against creditors. 

Judgment on the verdict for the respondent. 

Dkuvsbt or Deed to GxtAirrEB arbb Geahtob's Death: See CfUmore v. 
WkUetides, 31 Am. Deo. 563, note 569; Jones v. Janes, 16 Id. 36, note 39^ 
where the mibject Ib folly diecoased. The principal case is cited in (/KeUp 
V. (yKeUy, 8 Meto. 439, and in WaUaee v. Harris, 32 Mich. 398, in sapport 
of the role that a delivery to another to be delivered after the grantoT'e 
death is a good delivery, and relates back to the first delivery. 

The principal case is cited to the point that delivery to a third person for 
the oae of the grantee, on a fotore event, is a good delivery presentiy, in the 
following cases: Shaw v. Hayward, 7 Cosh. 175; Timothy v. Wright, 8 Gray, 
527; Mather v. OorUss, 103 Mass. 571; J^an v. Howe, 121 Id. 426; and 
Marsh V. AusUn^ I Allen, 238, and in Bkmchard v. Blackstone, 102 Mass., to 
the point that a delivery to an agent is as effeotoal, as into the hands of the 
grantee himself . 

GuMMiNQS V. Abnold. 

[8 Mbtgazjp, 486.] 

Wbiiten Ck>NT&Aor mat be Altered bt SiTBSBQtrENT Pabol Aqbeembht« 
where the alteration is made on a good consideration and before any 
breach of the contract. And, in an action for a breach of the written 
oontract, soch alteration may be proved, althoogh the oral agreement be 
within the operation of the statute of fraods. 

Absumpbet. The opinion states the case. 

B. Sumner y for the defendants. 

Codman, for the plaintiffs. 

By Ck>i2rt, Wilde, J. This case comes befoxe us on excep- 
tions to the rulings of the court at the trial, whereby the eyi-* 

15G CuJBiiNGS V, Arnold. [Mass. 

dence offered by the defendants was rejected, on the ground 
that the facts offered to be proved woidd not constitute a legal 
defense. The action is founded on a written contract, by which 
the defendants undertook to deliver to the plaintiffs, at a stip- 
ulated price, a certain quantity of cloths for printing, from time 
to time, between the tweniy-sixth day of October, 1838, and the 
first of March following. 

The defendants admit that the written contract was not per* 
formed by them according to the terms of it; and they rely on 
two oral agreements, made subsequently to the execution of the 
written contract, by the last of which it was agreed that the 
plaintiffs should pay cash for the goods to be sent to them by the 
defendants — they discounting five per cent, on the stipulated 
price, whenever the goods sent shoidd amoimt to the value of 
one thousand dollars, not before paid for; that, under this last 
verbal agreement, the defendants delivered one himdred and 
fifty pieces of goods, and that the plaintiffs refused to perform 
said agreement on their part. The defendants also offered to 
prove that each of these verbal agreements was made on a legal 
and good consideration. The question is, whether these facts, 
if proved, woidd constitute a legal defense to the action. The 
general rule is, that no verbal agreements between the parties to 
a written contract, made before or at the time of the execution 
of such contract, are admissible to vary its terms or to affect its 
construction. All such verbal agreements are considered as va- 
ried by and merged in the written contract. But this rule does 
not apply to a subsequent oral agreement made on a new and 
valuable consideration, before the breach of the contract. Such 
a subsequent oral agreement may enlarge the time of perform- 
ance, or may vary any other terms of the contract, or may waive 
and discharge it altogether. 

This rule is laid down by Lord Denman, in Goss v. Lord Nu- 
gerU, 5 Bam. & Adol. 65, as a well-established principle, in these 
terms: ''After the agreement has been reduced into writing, it is 
competent to the parties, at any time before breach of it, by a 
new contract not in writing, either altogether to waive, dissolve, 
or annul the former agreement, or in any manner to add to, or 
subtract from, or vary, or qualify the terms of it, and thus to 
make a new contract; which is to be proved, partly by the writ- 
ten agreement, and partly by the subsequent verbal terms en- 
grafted upon what will be thus left of the written agreement.'* 

The same piinciple, substantially, is maintained by numerous 
cases both in England and in this country : Milton v. Edgworih, 

March, 1842.] Cummings v, Arnold. 157 

5 Bro P. C. (2d ed.) 313; BuU. N. P. 152; 1 Mod. 262;* 2 Id. 
259;' 12 Id. SSS,-* 3 T. R. 590;* 1 East, 631;* 12 Id. 578;« 1 Esp. 
54;^ 3 Stark. Ev. 1002; Chit. Con. (5th Am. ed.) 108; 14 Johns. 
330;' 9 Cow. 115;» 1 Johns. Oas. 22;*'* 3 Id. 60;" 3 Johns. 531;" 
12 Wend. 446;" 13 Id. 71;" 9 Pick. 298;" 13 Id. 446;" 2 Watts, 
456;" 5 Cow. 497;" 7 Id. 50;" 3 Pairf. 441;*» 4 N. H. 40;" 6 
Halst 174;" 1 A. K. Marsh. 582." 

In Dow Y. TuMe, 4 Mass. 414 [3 Am. Dec. 226], it was de- 
cided that where the promisee of a note payable at a day cer- 
tain contracts, at the time the note is given, not to demand pay- 
ment of it, until a certain time after its maturity, such contract 
is a collateral promise, for the breach of which, if there be a 
legal consideration, an action may lie; but that it is no bar to 
an action on the note, when due by the terms of it. But this 
case was decided on the ground that the agreement, offered to 
be proved in the defense, was made at the time of making the 
note, and was repugnant to the terms of it. This decision, 
therefore, is not inconsistent with the doctrine maintained in 
the cases cited. 

But the plaintiffs' counsel contends, that however the general 
principle may be, as to the effect of a parol agreement on a pre- 
vious written contract, it is not applicable to the present case, 
the parol agreement being void by the statute of frauds; and 
that to allow a parol agreement to be engrafted upon a written 
contract, would let in all the inconveniences which were in- 
tended to be obviated by the statute. In considering this ob- 
jection, we have met with many conflicting decisions, but for 
which, we should have had but little difficulty in disposing of 
the question raised. And notwithstanding the doubts excited 
by some of these decisions, we have been brought to a conclu- 
sion which coincides, as we think, with the true meaning of the 
statute. The language of the fourth section (Bev. Stats., c. 74)., 
on which the question depends, is peculiar. It does not re- 
quire that the note or memorandum in writing of the bargain 

1. JAMrdfl T. VTeefct. 18. Brmnier ▼• Counrtgwuin. 

9. Edwardt t. Wedeg. U. Dtlaeroix t. Bulkleg. 

8. May v. King. 15. ifwtroe ▼. Perkint; B. 0., 30 Am. Dee. 47S. 

4. LUtler y, HoOamd. 16. Riekardton ▼. Hooper 

5. Heard ▼. Wadkam. 17. Vicary ▼. Moore, 

6. White Y.Pat'kin. IB, FroUy. Everett, 

7. Tkreeh y. Bake, 19. Dearborn t. CroM. 

8. LaUimore r, Hantm, 90. Low t. TreodweK. 

9. Bailey ▼. Johuon, 91. Bobineon r, BateKelder, 

10. Keating y. Price: 8. 0., 1 hm. Dee. 99. 99. Perrine y, CAeetemon; S. 0., 19 Am. Dee. 18^ 

11. Ballard y, WaJker. 93. Trwnbo y, CurtwrighL 

12. FUmingy. Gilbert, 

158 CuMMiNGS V. Arnold. [Masa. 

should be signed by both the contracting parties, but only '' by 
the party to be charged thereby, or by some person thereunto 
by hiDi lawfully authorized." 

'' The principal design of the statute of frauds was," as Lord 
Ellenborough remarks, in Cuff^y. Penn^ 1 Mau. & Sel. 26, '' that 
parties should not have imposed on them burdensome contracts 
which they never made, and be fixed with goods which they 
never contemplated to purchase." The statute, therefore, re- 
quires a memorandum of the bargain to be in writing, that it 
may be made certain; but it does not imdertake to regulate its 
periormance. It does not say that such a contract shall not be 
varied by a subsequent oral agreement for a substituted perform- 
ance. That is left to be decided by the rules and principles of 
law in relation to the admission of parol evidence to vary the 
terms of written contracts. We have no doubt, therefore, that 
accord and satisfaction, by a substituted performance, woidd be 
a good defense in this action. So if the plaintiffs had paid for 
the goods, according to the oral agreements to pay cash or give 
security, and the defendants had thereupon completed the de- 
livery of the goods contracted for, it would have been a good 
performance of the written contract. This has been prevented 
(if the defendants can prove what they offered to prove) by the 
plaintiffs' refusal to perform on their -paxt a fair and viJid con- 
tract. And it is a well-settled principle that if two contracting 
parties are bound to do certain reciprocal acts simultaneously, 
the offer of one of the parties to perform the contract on his 
part, and the refusal of the other to comply with the contract 
on his part, will be equivalent to a tender and refusal; and in 
the present case, we think it equivalent to an accord and satis- 
faction, which was prevented by the fault of the plaintiffs, who 
agreed, for a valuable consideration — ^if what the defendants 
offered to show be true — to vary the terms of the written con- 
ti*act as to the time of payment, and afterwards refused to com- 
ply with their agreement. If the defendants on their part had 
refused to perform the verbal agreement, then indeed it could 
not be set up in defense of the present action; for the party, 
who sets up an oral agreement for a substituted performance of 
a written contract, is bound to prove that he has performed, or 
has been ready to perform, the oral agreement. 

This distinction avoids the difficulty suggested in some of the 
cases cited, where it is said, that to allow a party to sue partiy 
on a written and partly on a verbal agreement, woidd be in di« 
rect opposition to the requisitions of the statute; and it un- 

March, 1842.] Cuhminqs v. Abnold.^ 159 

doubtedlj would be; bat no party having a right of action can 
be compelled to fine in this form. He may always declare on 
the written contract; and unless the defendant can prove per- 
formance according to the terms of the contract, or according to 
the agreement for a substituted performance, the plaintiff would 
be entitled to judgment. We think, therefore, that the evidence 
of the oral agreementis, offered at the trial, should have been ad- 
mitted; the same not being within the statute of frauds, and the 
evidence being admissible by the rules of law. 

In support of this view of the case, I shall not attempt to 
reconcile all the conflicting opinions which have been held in 
similar or nearly similar cases, some of which appear to have 
been decided on very subtle and refined distinctions. I will, 
however, refer to a few decisions which bear directly on the pres- 
ent case. The case of Cuffy. Perm, 1 Mau. & Sel. 21,isa strong 
authority in favor of the defendants, as the facts, on which the 
decision in that case depended, are in all respects substantially 
similar to those offered to be proved in this action. That was 
an action for assumpsit for not accepting a quantity of bacon, 
which by a written contract the defendant agreed to purchase 
of the plaintiff, to be delivered at certain fixed times. After a 
part of the bacon had been delivered, the defendant requested 
the plaintiff, as the sale was dull, not to press the delivery of the 
residue, and the plaintiff assented. The defendant afterwards 
refused to accept the residue, and set up the statute of frauds in 
defense; but the court held, that there was a parol dispensation 
of the performance of the written contract, as to the times of 
delivery, which was not affected by the statute of frauds. Lord 
EUenborough says: ''I think this case has been argued very 
much on a misunderstanding of the statute of frauds, and the 
question has been embarrassed by confounding two subjects 
quite distinct: namely, the provision of the statute, and the rule 
of law whereby a i>arty is precluded from giving parol evidence 
to vary a written contract;" '' It is admitted," he adds, in an- 
other part of his opinion, ** that there was an agreed substitution 
of other days than those originally specified for the performance 
of the contract; still the contract remains. Suppose a delivery 
of live hogs instead of bacon had been substituted and accepted; 
might not that have been given in evidence as accord and satis- 
fiiction? So here the parties have chosen to take a substituted 

The principle on which this case was decided is laid down in 

160 CuMMiNGS V. Arnold. [Masa 

Beveial other cases, some of which have been abeady cited on 
the other point of defense. 

At the argament of the case of Oosa t. Lord Ntigenl, Parke, 
J., remarked, that ''in Cuff v. Penn, and some other cases re- 
lating to contracts for the sale of goods, above ten pounds, it 
has been held, that the time in which the goods, by the agree- 
ment in writing, were to be delivered, might be extended by 
a verbal agreement. But I never could understand the prin- 
ciple on which those cases proceeded; for the new contract to 
deliver within the extended time must be proved partly by written 
and partly by oral evidence." But there is no necessity for the 
plaintiff to declare partly on the written and partly on the oral 
agreement. He may always, as before remarked, declare on the 
written contract, and the defendant will be bound to prove a 
performance according to the terms of it, or according to the 
terms of a substituted performance; and performance in either 
way may be proved by parol evidence: 2 Watts & Serg. 218.' 

Lord Denman, who delivered the opinion of the court in Chsa 
V. Lord Nugent, does not question the correctness of the decision 
in CuffT. Penn; and his remarks on another branch of the stat- 
ute of frauds seem to be confirmatory of the principle laid down 
by Lord Ellenborough in the latter case. '' It is to be observed," 
he says, '' that the statute does not say in distinct terms, that 
all contracts or agreements concerning the sale of lands shall be 
in writing; all that it enacts is, that no action shall be brought 
unless they are in writing; and there is no clause which requires 
the dissolution of such contracts to be in writing." In that ac- 
tion, however, the plaintiff declared partly on the written and 
partly on the verbal contract, and on. that ground it was right- 
fully enough decided that the action could not be maintained. 

In StoweU v. Bobinson, 3 Bing. N. K., 928, and 5 Scott, 196, 
it was held, that the time for the performance of a written con« 
tract for the sale of lands could not be enlarged by a subsequent 
oral agreement, although that agreement was pleaded by the 
defendant as a bar to the action. The plea was, that at the 
time stipulated for the performance of the written contract, 
neither party was ready to complete the sale; and the time for 
the performance was agreed by the parties to be postponed. 
That decision seems to be founded on the doubt suggested by 
Parke, J., in Oo88 v. Lord Nugent, and upon the decision in that 
case, without noticing the distinction in the two cases. And it 
appears to us, that the case of SioweU v. Bobinaon was decided 

1. McOombi y. MeKennan. 

March, 1842.] Cummings v. Aknold. 161 

on a mistaken construction and application of the statute of 
frauds; and that the distinction between the contract of sale, 
which is required to be in writing, and its subsequent perform- 
ance, as to which the statute is silent, was overlooked, or not 
sufficientlj considered by the court; otherwise, the decision per- 
haps might have been different. We think there is no substan- 
tial difference, so far as it relates to the statute of frauds, be- 
tween the plea in that case and the plea of accord and satisfac- 
tion, or a plea that the written contract had been totally 
dissolved, before breach, by an oral agreement; either of which 
pleas would have been a good and sufficient bar to the action. 
We are aware that the principle on which Stowell v. Robinson 
was decided, is supported by other English cases cited; but the 
principle on which the case of Cuff v. Penn was decided, is in 
our judgment more satisfactory and better adapted to the ad- 
ministration of justice in this and similar cases. 

It is to be observed in the present case, that the oral agree- 
ments, offered to be proved by the defendants, did not vary the 
terms of the written contract as to its performance on their 
part; the only alteration was as to the time of payment by the 
plaintiffs. Such an alteration, made on a good consideration, 
and before any breach of the contract, may, we think, be 
proved, without any infringement of the statute of frauds or 
any principle of law. 

New trial granted. 

Parol Aobbsbibnt mat bb Made on Basis or Prior Writtxn Contbaot: 
See BlcudeU v. Sauiher, 6 Gray, 151; Kennebec Co. v. Augusta L <fe B, Co., 
Id. 208; PiaU v. U. S,, 22 Wall. 607; Emerson v. Slater, 22 How. (U. S.) 42; 
Morgan v. BuUerfield, 3 Mich. 623, all citing the principal case. See ako 
Vicary v. Moore, 27 Am. Dec. 323, note 327; De8?iarzo v. Lewis, 24 Id. 769; 
Blood V, Qoodrichy Id. 121, note 129, where other cases are collected. 

Partixs mat Enlargx Timb of Performance of Written Contract 
by parol a^preement: Rockwood v. AUott, 3 Allen, 462; Lemed v. Wanne^ 
fnacher, 9 Id. 418; Bacon v. Cobb, 45 111. 56, all citing the principal case. 
See also note to Blood y. Ooodrich, 24 Am. Dec. 129, where cases are collected; 
Deaharzo v. Lewis, Id. 769. 

The principal case is distinguished in Loring v. Alden^ 3 Mete. 579, 
ftnd followed in Steams y. IlaU, 8 Cnah. 31, 34, and in WhUUer y. I>ana, 10 
AUen, 326, 327. 

Ax. Dso. Vol.. ZXXyn— 11. 






Plantbbs' Bank v. lAkTurakng. 

[6 HowABD, 887.] 

The VnAiom ahd Ctoxomb of a Bank Bdid thx Pabsom to a note vmdm 

pajftUe there. 
Wbxbb bt thb Custom of a Bank thb Makbb of a Nora payable there 

has nntil the cloee of biumeaB honn within whioh to pay, a demand of 

payment will not be saffident to charge the indoreen onleee the note ie 

left at the bank until the doee of bnaineee honn. 

Abbumpsit on a promiBsoiy note executed by Martham and 
indoised to the Planters' bank. The nofce was nuide payable at 
the Ck>mmercial bank of Natchez. The evidence on the trial 
established that by the custom of that bank, the maker of 
notes payable there had nntQ three o'clock to pay them; it also 
appeared that the note in qneetion had been there presented by 
the agent of the Planters' bank before the dose of bnsineea 
honrs, and that upon payment being refused he had withdrawn^ 
taldng ^th him the note. The indorsers upon the note, de- 
fendants in the action, requested the court to charge the jmy» 
that the custom of the bank was binding ux>on the parties to 
the note, and that if such a custom as that mentioned above had 
been established^ then that the note was not payable before 
three o'clock, and no demand before that time would be sufficient 
to bind the indorsers, unless the note was left at the bank. 
This instruction was refused and the jury was informed by the 
court that a demand of payment at any time b etw e en ten and 
three o'dock would be sufficient. 

O. 8. Terger, for the plaintiff in enor. 
WOkmBon, contra. 

Jan. 1841.] Plantebs' Bank v. Mabkham. 163 

By Ck>iirt, Tbotteb, J. The opinion of the court below, as 
expreesed, was certainly erroneous. The law upon this subject 
is well settled by numerous and repeated decisions of the most 
respectable courts in this coimtry; that where a contract ia 
made with a banking corporation, or a note is made payable 
there, the usage and custom of the bank constitute a part of 
the contract, and the parties so contracting are bound by it; not 
upon the ground that this usage changes the general rules of 
law, but iliat by so contracting they have impliedly consented 
to be bound by it, and to substitute it for the general law. Thi& 
is the principle of the decision in the case of Jones t. IhU,^ 4 
Mass. 251; and also of that in 1 Pet. 33.' When the custom of 
the bank is known to the contracting parties, it therefore con- 
stitutes a part of the contract, and they can receive no prejudice 
by being held to it. And though an express knowledge of this 
usage be not shown, it may be implied from circumstances, and 
they are equally bound or equally exonerated. In the case of 
Mills V. The Bank of the TJhUed States, 11 Wheat. 130,' the court 
say: ''That when a note is payable or negotiable at a bank 
whose invariable usage is to demand payment and give notice 
on the fourth day of grace, the parties are bound by it, whether 
they have a personal knowledge of it or not. In the case of 
such note, the parties are presumed by implication to agree to 
be governed by the usage of the bank at which they have chosen 
to make their securities negotiable." It follows as a necessaiy 
consequence of this doctrine, that a note or other security thus 
payable at a bank can not be considered as due until the expira* 
tion of the hour allowed for payment by the invariable usage of 
the bank, and that it must be left at the bank until the comple- 
tion of the allotted period. The case of the Boston Bank v. 
Hodge et al.yd Pick. 420, decides the very question ng^w before 
the court. In that case the distinction is taken between a per- 
sonal demand of payment of the maker, which may be made at 
any time during business hours of the day the note falls due, and 
a demand at the bank when the note is made payable there^ 
which must conform to the usage which prevails. That case 
decides this. For as the note, according to the custom of the 
bank, was not due until the expiration of the business hours of 
that institution, to demand payment before that time, without 
leaving the note in bank, was premature and not sufficient to 
charge the indorsers. 

The judgment must therefore be reversed, and a venire de nova 

1. Jmua ▼. FaUa. I. Bank of Watkimat^m ▼. TripUIL ». 11 WhMt 4S1. 

164 CJoLEMAN V, RowE. [Miss. 

Coleman v. Rows, 

[5 HowABD, 460.] 

InapENDXMT Covenants — Wiiebe a Day ra Fixed for the Paymemv 
OF Money, which is to happen before the performance of that which is 
the conaideration of the payment, the covenant for payment is inde- 
pendent, and may be enforced, though there has been no performance of 
the consideration. Within this rule an agreement to pay an installment 
of the purchase price of land is independent of the covenant of the vend- 
or to convey the title after the entire purchase price has been paid. 

Ibbm. — Equity will not Enjoin the Ck>LLEcnoN of an Installment 
of the price due on a sale of lands, the title to which is to be made by 
warranty deed, after the entire price has been paid, upon the ground 
that the vendor has no title, where the latter has been guilty of no fraud, 
and the vendee has not been evicted from the tnuit sold. 

Bill in equity. In 1837, defendant sold complainant a tract 
of land containing about three hundred and sixty acres for seven ' 
thousand and two hundred dollars, payable in three equal in- 
stallments; one payable as soon as possession was delivered; 
one on the first of January, 1838; and one on the first of Janu- 
ary, 1839. The agreement of the parties was that defendant 
should convey the title as soon as the payments were completed, 
and as part of the agreement defendant executed a bond for 
title, affirming his ability to make good title. Complainant 
paid one thousand seven hundred dollars on the first install- 
ment, and gave notes for the remaining seven hundred dollars. 
He now sought a rescission of the contract and an injunction 
against collection of the unpaid installments, alleging that the 
title to the larger and more valuable portion of the land was in 
Tishoma, a Choctaw Indian, to whom the land had been awarded 
by the United States commissioners under the treaty of Danc- 
ing Babbit creek; and that defendant was in such a pecuniary 
condition that nothing could be recovered upon his covenant, 
and therefore complainant would lose his money unless the 
contract was rescinded. The pleadings of defendant denied 
the allegation of insolvency, and that the title to any portion of 
the land sold was in Tishoma, and were accompanied by ex- 
hibits which showed a regular derivation of title from the gov- 
ernment to the defendant. The evidence as to insolvency was 
conflicting. As to the title which was asserted to be in the 
Indian, complainant introduced evidence which he claimed 
proved a compliance upon his part, before the inception of de- 
fendant's title, with the provisions of the treaty of Dancing 
Babbit creek, sufficient to have invested him with the legal title 
jto the land. The injunction upon this showing was dissolved* 

Jan« 1841.] C!ol£MAN v. Bowe. 165 

W, A O. 8, Terger, for the appellani. 
TJiompsan^ conira, 

Bj Court, Tbotteb, J. The exhibits referred to in the answer 
follj support the statement of a regular derivation of title by 
appellee, from the general government, to all the lands sold by 
this contract to appellant. Sundry depositions were caken to 
prove the paramount title which is stated to be in Tishoma; but 
no question is made of appellee's title to the residue. The pre- 
ponderance of the proof is against the alleged insolvency of the 
appellee. Ux>on this statement of the case, the chancellor dis- 
solved the injimction. It is important in considering the ques- 
tion of the appellant's title to relief in this case, to examine the 
character of the agreement which is disclosed by the record, and 
whether the promise to pay the purchase money is dependent or 
independent. The general rule appears to be, that the inten- 
tion of the parties, to be gathered from the whole contract, ia 
the criterion of the question. Thus where a day is fixed for the 
payment of money, or part of it, and the day is to happen, or 
may happen, before the thing which is the consideration of the 
money is to be performed, an action may be brought for the 
money before performance; for it appears that the party relied 
upon his remedy: 1 Saund. 319;^ 2 H. Bl. 389;' 20 Johns. 15;* 
5 Cow. 509;' 15 Mass. 471.* 

In the case just mentioned, where a day is fixed for the pay- 
ment of money, or part of it, the courts have held that the 
promise or covenant is independent, because it appears to be the 
intention of the vendee to pay at all events. And hence, where 
the covenant is to pay the purchase money by installments, or 
where part is paid down, and the balance is to be paid by in- 
stallments, it has been held that the agreement to pay in this 
manner is independent. This rule applies as well to contracts 
for the sale of land as of other property; and is therefore an ex- 
ception from the general principle which prevails in the con- 
struction of this class of agreements; which is, that contracts 
for the conveyance of land are to be considered mutual and in- 
dependent, so that the vendor shall not be compelled to part 
from his land without receiving the consideration agreed upon, 
nor the vendee to pay the money without the conveyance of the 
land. This is the doctrine of the case of the Bank of Columbia 

1. Ftrdoge T. QoU, a. Ttrry y. IhuUM4, 8. Bohb r, M^Htgamer^, 

4. Clumpiom ▼. WkSU, 8. Gardiner t. Conon ; 8. O., 16 ICaM. 600. 

166 Coleman v. Rowk [Miaa. 

T. Hagner, 1 Pet. 465, and is founded in a wise policy to prevent 
^freat injustice; since otherwise the party might be exposed to 
irreparable loss. But whilst the principle is thus broadly laid 
<Lown, and so fully sanctioned by reasons of expediency and 
justice, it must of necessity yield in all cases to the agreement 
of the parties, which shows that it was the intention to waive its 
l)enefit. The rule, therefore, prevails only in cases where the 
parties have not manifested an intention, by the terms of their 
contract, to place themselves under a different one. And this 
is fully recognized by the court in the case referred to. 

It is true, that in the particular case then under their considera- 
tion, the court held the contract to be dependent, although the 
agreement of the vendee was to pay by installments; a deter- 
mination which would seem to be founded on the peculiar circum- 
stances of the contract. Hagner submitted a proposition in writ- 
ing to purchase the lots of the bank, and to pay the purchase money 
in six quarterly installments; for which he would give his notes, 
if the bank would give him the title. If the bank preferred it, 
however, he would take a bond for the title when the payments 
were completed. It was upon this proposition that the action 
was brought; and the court decided that the bank was bound 
to show a tender, either of the bond or deed, before they could 

The agreement of Hagner to pay, or to execjite his notes, was 
evidently dependent upon the performance of the condition upon 
which they were to be made. He was to have a bond for title, 
or the title itself, and this was the entire consideration of his 
contract. It is, therefore, entirely a different case from the one 
«t bar. The vendee here received a security for the title in the 
bond of the vendor, conditioned for a deed when the last pay- 
ment of the purchase money was made. And it is evident that 
he intended to rely upon his remedy on that security, from the 
fact of his having paid part of the money at the time, and prom- 
ising to pay the larger portion of the whole sum agreed upon at 
times anterior to the day or event on which he could demand 
the title. The principles settled in the case of Neioman v. 0i&- 
.8071, 1 How. 841, are decisive of this question; for the contract 
in that case was very similar in its terms to the one which is 
^own in this. And upon a careful examination of the author- 
ities, we feel satisfied to adhere to the doctrine there laid down. 
Hence we conclude, that the agreement of the vendee in this 
oase, to pay the money, was independent of the performance of 
the covenant for title on the part of the vendor. 

Jan. 1841.] Coleman v. Bowe. 167 

The yendor agreed to convey the title when the last payment 
was made. It thus appears that the payment of the money was 
to precede the conyeyance; and according to the case of Bobb y. 
Montgomery, 20 Johns. 16, " when the payments are to precede 
the conyeyance, it is no excuse for the non-payment that there 
is not a present existing capacity to convey a good title, unless 
the one whose duiy it is to pay offers to do so on receiving a 
good title, when it must be made to him, or the contract may be 
rescinded.'' So in the case of Miller v. Long, 3 A. E. Marsh. 
836, it was stated that the vendor was not bound to convey the 
title until the purchase money was paid. So also in the case of 
Saunders Y^BecU's AdministrcUors, 4 Bibb, 342, where the agree- 
ment was to pay the purchase money in three years, and the 
vendor covenanted to convey the land in twelve months, or so 
soon thereafter as the consideration money shall be paid, it was 
held not to be a good answer to an action to recover the money 
that the vendor had not conveyed the land and was not able to 
do so, though the vendee averred a tender of the purchase 
money, and a readiness to pay upon receiving the deed. And in 
the case of Champion v. WhUey 5 Cow. 510, the defense was an 
ioability on the part of the vendor to convey a part of the land; 
but the court, after deciding that the promises were independ« 
ent, held the defense not to be tenable. 

The bill of complaint in this case does not aver any offer on 
the part of the vendee to comply with this contract by paying or 
tendering the purchase money, nor any demand of the title, but 
daims a rescission of the contract on the ground of an inability 
on the part of the vendor to convey the title. And it is insisted 
that the court can not compel the party to take a defective title, 
or to resort to his remedy upon the covenant. That where the 
contract is executory and the vendor is unal>le to comply with 
his covenant, the vendee may elect to sue upon the covenant or 
disa£Brm the contract, notwithstanding he has gone into posses- 
sion and there has been no eviction. The rule appears to be 
well settled both in England and in this country that in the 
case of a pxirchaser of land, where the title fails, a court of 
chancery will decree a return of the purchase money, even after 
the complete execution of the contract by payment of the money 
and delivery of the deed, if there has been a fraudulent misrep- 
resentation as to the title. But it seems to be settled in Eng- 
land, and by most of the courts in this country, if there is no 
fraud, and the purchaser is not evicted, that the insufficiency 
of the title is no ground for relief against the payment of the 

168 Coleman u Rowe. [Miss^ 

porcliase money, or for rescinding the purchase, and claiming 
restitution of the money. The party is remitted to his remedies 
at law on his covenants to insure the title: 2 Kent Com. 370; 
AbboH V. Allen, 2 Johns. Ch. 519 [7 Am. Dec. 554]; 3 A. K. 
Marsh. 336;' 4 Bibb, 342;' 5 Conn. 528;* 1 Greenl. 352;* 5 Cow. 
610;* 9 Johns. 126.* The case of Newman v. Gfibson, 1 How» 
341, was decided in comformity with the principles of the above 
cases. And although we may doubt the policy of this doctrine 
in its general application, and believe that the justice of the 
case may often be with the defense, yet it is now too well 
settied to be departed from. 

If then, there has been no fraud, nor any eviction, and the 
agreement is executed, the vendee can have no claim to relief 
on the mere ground of a failure of titie: 1 Johns. Ch. 213.^ 
But as in the present case the deed has not been delivered, the 
contract remains executory and a different rule it is said must 
prevail. This distinction is laid down and supported by the 
court in the case of Miller v. Long, 3 A. K. Marsh. 335. In 
that case the right of the vendee to be relieved where the deed 
has been delivered is denied; but it is said to be otherwise where 
the contract is executory to execute' the deed in future. In the 
first case the court recognizes the general rule laid down, that 
the vendee must resort to his remedy at law upon his covenants. 
But in cases like the present where the vendee takes the pre- 
caution to secure himself by a penal bond covenanting to 
convey a titie with full covenants, and that ap{>ears to be the 
consideration of his promise to pay the money, though we may 
consider the covenant to convey as an executoxy contract, yet 
it is difficult to conceive how that circumstance can vary the rule 
as to relief. In the latter case the vendee has his remedy at 
law upon the covenants in the bond, and he would seem to be 
equally subject to the general rule to resort to that remedy if 
there is no fraud or eviction. 

In this case the vendee was put in the possession of the land,, 
and has continued in the quiet and undisturbed possession for a 
period of nearly four years, and for aught that appears to the 
court may never be disturbed by the alleged outstanding titie 
of the Indian. He has not even been threatened with this tiUe» 
and no step has been taken by the Indian to enforce it. Under 
such circumstances it seems to us that it would be contiazy to 
eveiy principle to go into an inquiiy as to this titie, or to settle 

1. MiUer t. long. 4. Llo^d r, JwnU ; B. C. 10 Am. Deo. Ts! 

S. SoHUkden ▼. B§ol. 6. Ohampiony, WMU, 6. O rmit bf r. Ckseoen, 

a. BmrkhamtUd t. Com; 8. O., 18 Am. Dee. 92. T. Bump mt ▼. FUUmtn 

Jan. 1841.] Mitchell v, Evans. 169 

its paramount Talidity, in this collateral proceeding, when the 
Indian is not before the court, when his title is flatly d^nied by 
the vendor, and when he has not for himself thought proper to 
assert it by any adverse proceeding. Such were the views en- 
tertained by the supreme court of this state in the case of 
MUler V. Owerts and others, Walker, 244, and they seem to us 
to be fully sustained by the chancellor in New York in the case 
of Abbott V. Alien, 2 Johns. Ch. 619 [7 Am. Dec. 554]. In that 
case the chancellor reasserts the principle which was established 
by a former decision in the same court in the case of Bumpns v. 
Plainer, 1 Johns. Ch. 213, " that a purchaser of land who is in 
possession can not have relief here, against his contract to pay, 
on the mere ground of a defect of title, without a previous 
eviction." And adds, '^ that if there be no fraud in the case, 
the purchaser must resort to his covenants, if he apprehends a 
failure of title." It would lead to the greatest inconvenience 
to permit a purchaser in the actual enjoyment of land, and 
when no person asserts or takes any measures to assert a hostile 
claim, to stop the payment of the money on suggestion of a de- 
fect of title, and on the principle of quia timet. 

Hence we conclude, that the appellant is not entitled to relief 
in this case, 1. Because his contract to pay money was inde- 
pendent of the covenant of the appellee to make him a title. 
He agreed to pay the money at all events, and relied upon the 
covenants in the bond for a titled 2. Because he was put in 
possession of the land and has continued in the imdisturbed 
possession since the time of the contract, and there is no fraud 
proven upon the vendor, and there has been no eviction by para- 
mount title. 8. And also because there is no proof of a defect or 
failure of title which can be noticed by this court. The answer 
denies the outstanding title, and it has not been duly ascertained 
in any of the modes by which it can be recommended to the con- 
sideration of the court. 

The decree of the chancellor must therefore be affirmed, w;ith 
costs to the appellee. 

GovxNANT TO Pat Pobtions OF THx PuBCHASB MoNRT befopo the day fixed 
for the ezeoation of a oonveyance by the vendor, is independent: Betm v. 
Atwaier, 10 Am. Dec. 91. 


[6 HOWABD, 648.] 

B lUKJUTi oir laeuMD ajter a Ybar and a Day on a judgment which haf 

not been revived by tdre faciaa is but voidable, not void. 
PusoHASBB AT A Salb ukdkb A VoiDABLB ExBCTTTiON will be protected. 

170 Anderson v. Wanzer. [Misa. 

Dktinub. The opinion states the case. 
Holt, for the plaintiff in error. 
N, 2>. Coleman, contra. 

Tbottbb, J. This was an action of detinue for a slave. It 
appears from the bill of exceptions, that the claim of Mitchell 
to the slave in controversj arose under a purchase by him, at a 
sale made by the sheriff, on an execution against one Bumham. 
The plaintiff in error derived title also imder Bumham. On the 
trial, the court was requested to instruct the jury, that the ex- 
ecution under which Mitchell claimed w^ absolutely void, as it 
had been issued on a judgment rendered' more than a year and 
a day, which had not been revived by scire faciaa. The court 
gave this instruction; and informed the jury, moreover, that 
Mitchell could acquire no title under that sale. The defendant 
below excepted. 

This instruction was clearly erroneous. The execution was 
only voidable, but not void. The judgment was entirely reg- 
ular; and a purchaser at a sale under an execution issued upon 
it, which is merely irregular or voidable, can not be prejudiced 
for that reason. The authorities are full and direct on this ques- 
tion: 2 How. 607;* 16 Johns. 537." 

There are several other questions in this case; but it is not 
deemed important to notice them, as they are subordinate to the 
one which has been considered. 

For the error of the court below, in giving the instmotion 
above, the judgment must be reversed, and a venire de novo 

BxxounoNS, WHSK VoEDABLB: See Day v. Sharp, 34 Am. Dea 509; Borm 
V. JfeOeAee, 31 Id. 096; OoUmgmoorth ▼. Hom, 24 Id. 703, and note. 


16 HOWABD, 087.) 

Tta Anbwkb ahd ADMiawiow of Onb Partner upon Psoons of Oab- 
msHXXKT, where both have been regularly served with prooen, will bind 
the other. 

BxiounoN, OS A JuDGMKNT AOADCBT A Garnisiub OH a debt not yet due, 
is stayed by operation of Uw until the debt does beoome dne, and there- 
fore the judgment need not be aooompanied by an order of ooort direet- 
ing the stay. 

Ebbob from Claiborne dxouit. 

1. AMA T. WUulum, t. Jmtkt9m T. 

JaiL 1841.] Andebson v. Wanzeb. 171 

Thorp, for the plaintiff in error. 
Thrasher, contra. 

By Oourt, Tbotteb, J. The defendant recovered a judgment 
in ttie court below against John G. Hastings, for the sum of 
seTen hundred and sixty-one dollars and ninety-four cents. He 
then applied for and obtained a garnishment against the plaint- 
iffs in error on a suggestion that they were indebted to Hast- 
ings, according to the provisions of the act of 1827. Upon 
the return of the process, H. O. Anderson, one of the firm of 
H. & H. O. Anderson, who were merchants and partners, an- 
swered, and stated an indebtedness of his firm to Hastings, in 
the sum of seven thousand five hundred and eleven dollars and 
exxty cents, which existed by virtue of three notes, two of which 
would be due the twentieth of January, 1840, and the other on 
the twentieth of February, 1840. Upon this answer the court 
rendered judgment against the garnishees for the amount of 
the judgment which Wanzer, the defendant in error, had re- 
covered against Hastings, and ordered execution to be stayed 
until Januaiy, 1840. Two errors have been assigned: 1. That 
the court rendered final judgment against both the garnishees 
upon the answer of one only. 2. In rendering the judgment 
without a «tay of the execution until the maturity of the debt, 
it not being then due. 

We do not think that either of these objections is sufficient to 
reverse the judgment. The garnishees being partners, the an- 
swer or admission of one was sufficient to bind the other. H. 
O. Anderson, as the record shows, answered for himself and 
partner. They had both been regularly served with the pro- 
cess, and as the purpose of the garnishment was to ascertain 
whether they were indebted to Hastings, that object was surely 
as well obtained by the admission of the fact by one partner as 
by both. It will not be denied, that in an ordinary suit against 
partners, to recover a partnership debt, an acknowledgment of 
the debt by one of the partners will be received as evidence to 
bind both, and justify a verdict and judgment against both. 
This is a principle of the law of partnership too fftinilmr to 
need authorities to support it. Nor can it be an objection to 
the judgment, that it is not accompanied by an order of the 
court to stay execution of it until the maturiiy of the debt. It 
is stayed by operation of the statute, until the debt is due. And 
if it is sued out before that time, it may be arrested, on motion 
or supersedeas. The act of 1827 does not require the stay of 

172 Baisnes v. Moody. [Miss 

execution to be made a part of the judgment. After author- 
izing the court to render judgment against the garnishee, the 
statute adds, "but execution shall be stayed, etc., until such 
garnishee's debt shall become due," etc. 
The judgment must be affirmed. 

Babnes v. Moodt. 

[6 HowASD, 686.] 

Rblbasb of Ebrors IK A JuooMBKT IS Plkadabui IS Bab of the Msign* 
ment of errors in the appellate court. 


consideration to support a release of errors. 

Ebbob from Hinds circuit. The facts appear from the opinion. 
Hayes and Glifion, for the plaintiff in error. 
Shelion, contra. 

By OouBT. A proceeding of unlawful detainer was instituted 
bj ttie defendant in error before a justice of the peace of Hinds 
couniy, to recoyer possession of a piece or lot of land in the 
ciiy of Jackson. The cause was submitted to a jury, which ap- 
pears to haTC been brought before the justice, who rendered a 
yerdict for the plaintiff below. There was but one justice who 
appears to haye presided at the trial. An appeal was taken to 
the circuit court, and a yerdict there obtained bj the plaintiff, 
and a judgment and award of the writ of habere facias posses- 
sion. After the writ was issued, the defendant, in consideration 
that the plaintiff would stay the execution for a certain time, 
signed and sealed and deliyered to the plaintiff a release of 
errors in the judgment, and this release is pleaded in bar of the 
assignment of errors in this court, and the demurrer filed to 
the plea presents for our consideration the simple question 
whether the plea be a yalid one. 

This question has been so repeatedly decided that it is only 
necessary to refer to the authorities upon the subject for the rea- 
sons of the opinion of the court in the present case: 2 Tidd'a 
Pr. 1170, 1172, 1174, and the authorities there cited. It is surely 
as competent to a party against whom a judgment has been ren* 
dered to release his right to prosecute a writ of error, as to sur- 
render any other cause of action which he may possess. The 
consideration for the release in this case was the forbearance of 
the plaintiff to execute the writ of habere fackis possession, and 

Jan. 1841.] Connell v. Woodard. 173 

this was a valuable consideration, as muoh so as forbearance to 
sue has been held to be a good consideration to support a prom- 
ise founded thereon. 

The demurrer to the plea must therefore be oyerruled, and the 
judgment of the court below affirmed. 

Connell v. Woodabd. 

[6 HowABD, 665.] 

Operatioh of thb Rulb that a Psbson can not bk Pastt 'PuLornww 
and also defendant is oonfined to natural persons. 

Trustees of Schools CoNSTrruTB Quasi (corporations, and may, in their 
corporate character, sue their own members. It will not affect the mle 
that the action is brought in the names of the individual trustees, in 
■tMd of under the general title of trustees of schools. 

AssuMPsrr. The opinion states the case. 

Boyd and Montgomery, for the plaintiffs in error. 

Walker and SnvUh, contra. 

By Court, Tbotteb, J. This was an action of assumpsit upon 
four promissory notes made by the defendants to the plaintiffii 
as trustees of schools and school htnds in a certain township of 
land in Wilkinson county. The defendants pleaded the general 
issue and two special pleas. The special pleas averred in sub- 
stance that Woodard and Mayes, two of the defendants, were 
also plaintiffs in the suit. The plaintiffs demurred to each of 
the pleas, but the court overruled both demurrers, and gave 
judgment for the defendants. The material error assigned is 
the judgment of the court below upon the demurrers. 

That the same person can not be plaintiff and defendant in 
the same action is a proposition which must command universal 
assent, since no man can sue himself. The operation of this 
rule is, however, confined to natural persons, and then it seems 
to be equally applicable to persons suing in their own right and 
to those who sue in a fiduciary character. This was the ground 
of the decision in the cases cited by the counsel for the defend- 
ants from 1 Ala. 103,^ 148.'' And for the same reason it has 
been held that an administrator can not, though a mere trustee, 
sue himself to recover a debt due from him to his intestate. 
The remedy in such case is suspended at common law, and va- 
ried by our act of assembly. This was incidentally adverted to 

1 TbkUa ▼. Bright, Minor, 103. 2. Ramsey t. Johnson, Minor, 418. 


by the court in ihe caae of Kelsey t. Smithy 1 How. 82. If the 
administrator does not return in his inyentorj a debt due from 
himself, anj party may petition the court of probates and com- 
I>el him to do so, and if after the return he do not pay it, his 
official bond may be sued on. This case only shows ttie rule 
which is everywhere recognized that an administrator can not be 
plaintiff and defendant in the same suit; anymore than one who 
sues in his own right. But it is urged by the counsel for the 
defendants that the trustees of schools in this state are liable to 
the operation of this rule just as an administrator or any other 
trustee; that they are not artificial persons or a body corporate. 
We think, howeyer, that there is a wide distinction between the 
two cases. An administrator is a trustee pro hoBC vice only. 
He is clothed with no one of the attributes of a corporation. 
The trustees of school lands are endowed with many of the 
functions of a corporation. They have x>erpetual succession in 
respect to the matters of their trust. It is true, they never have 
been incorporated by a particular name, nor have they been in- 
vested with plenaiy powers. Having been created by the law 
for particular and specified purposes, and for the accomplish- 
ment of such objects been invested with the right of succession^ 
they are corporations mb modo it is true, but yet they are not 
the less a corporation for the proper purposes of their creation. 
Our laws afford us many examples of this sort. Thus the loan 
officers who are created for each couniy in the state of New 
York, by an act of the legislature of that state, have been held 
to be bodies politic and corporate. So the board of supervisors 
who are authorized to take obligations to them and their succes- 
sors in office, by having thus the right of succession secured to 
them, have been classed among corporations: 2 Sent Com. 
225; 8 Johns. 422;' 2 Johns. Ch. 325.' 

The trustees of schools and school lands, whose appointment 
is provided for by the statute of this state, are authorized to ap- 
point a treasurer, and to take a bond from him, payable to them- 
selves and their successors in office, to lease the lands reserved 
in their respective townships for schools, and to take notes or 
bonds with surely payable in like manner, for the money due 
for the lease of the same. Being thus endowed with the right 
of perpetual succession for all ihe purposes of their creation^ 
they may well be termed quasi corporations, as they have been: 
Ang. & Ames on Corp. 16. This being the case, they are of 
oonrse subject to the rules which govern other corporations; 

1. Jaektom v. MartmOL 2. PMtoii T. Jaekt^m, 

Jan. 1841.] Bulut v, Thatchee. 175 

they might hare sued under the general title of trostees of schools 
and school lands. And haying the power to do so, the rule is 
not varied because the names of the seyeral persons who com- 
posed the board haye been stated in the pleadings. If these 
yiews be correct, then it follows that the board of trustees haye 
the same capacity to maintjiin an action at law against one of its 
members, who has come under obligation to them by a contract 
authorized l^ law, that a bank or other proper corporation pos- 
sesses in like cases. The ground of defense disclosed by the 
two special pleas, is therefore no legal answer to the action, and 
the demurrers should haye been sustained. 

It is not deemed necessary in the present case to go into an 
examination of the other question which has been submitted in 
the argument by the counsel for the defendants; whether under 
the act of congress which reseryes the sixteenth sections of land 
from sale, and for the use of schools in the townships, is a grant, 
so as to authorize the yarious acts of the legislature which haye 
from time to time been passed. This power has been so long 
recognized and acted on, that we do not feel inclined to question 
it at this time, eyen if we entertained any doubts of its existence. 
Oongress itself has been a witness of the course of legislation 
in this and other states on the subject of these lands, and has 
neyer offered any objection, nor questioned its propriely, and 
we shall not do so. 

The judgment must be reyersed, and the cause remanded for 
further proceedings. 

School Dibxbiots Oonbhtutb Quasi Cobfobatiohs: Andnw$ y. Atet, 
95 Am. Deo. 521. 



[6 HbWABD, 6)19.] 

BT AoooMM ODATION Iia>OBSKBS upon the holder of a proteited 
note, that he immediately proceed to sue the maker, aooompaoied with 
the information that upon a failure so to do they will hold themaelvee 
discharged, imposes no duty upon the holder; nor will the indorsers be 
dischazi^ed becaose the maker of the note, subsequently to the request 
whioh has not been complied with, beoomes insolvent. 

AoiiOH against the indorsers on a bill of exchange. The 
opinion states the case. 

HoU, for the plaintifb in enor. 

O. 8. Yerger^ contra. 

176 Buiirr v, Thatcher. [iliss. 

By Court, Shabebt, C. J. The defendants were accommoda- 
tion indorsers of a bill of exchange drawn by John F. Broadnax, 
dated first of January, 1837, payable in New Orleans, at six 
months, which was protested for non*acceptance on the sixteenth 
of the same month. The holders, the plaintiffs in error, are 
citizens of New Orleans, the maker being also a citizen of the 
state of Louisiana, and the defendants are citizens of this state. 
On the twenty-fourth of March, 1838, the defendants wrote to 
the plaintiffs, and requested them to sue the drawer of the bill im- 
mediately, or they would consider themselves discharged. The 
maker at that time had twelve or fifteen negroes unincumbered, 
but conveyed them away in June, and shortly afterwards died 
insolvent. On the sixteenth of April, 1838, this suit was brought, 
and on the trial the defendants relied on the notice and the fail- 
ure to sue, as a discharge, and so the court instructed the jury, 
which is now assigned as error. 

The question here presented has received frequent adjudica- 
tions, and some difference of opinion seems to exist in regard 
to the rule of law. It is contended that an acconmiodation in- 
dorser is but a surety, who has a right to require diligence of 
the holder in suing the principal, and authorities are cited 
which do sustain this position. To a certain extent, and for 
certain purposes, an accommodation indorser may be regarded 
as a surety. The object of such an indorsement is to secure the 
debt, but the undertaking or contract in a strictly legal point 
of view is materially different from that of an ordinary surely. 
In the one case it is several only, whilst in the other it is always 
joint, or joint and several. An indorser undertakes to pay the 
debt himself on condition; when the condition is performed by 
giving him notice of demand and refusal, his undertaking be- 
comes absolute; it is not secondary. The holder of a protested 
bill may proceed against either or all of the parties to it, at his 
election, but by separate actions. Our statute, it is true, has 
changed this rule, but it does not apply in this case, because the 
maker was not a citizen of the state. 

By the common law there was neither a legal nor an equitable 
obligation on the holder to sue the maker first, and if he may 
sue any party, how can it be that an indorser is discharged if 
the holder fails to sue the maker on request? Such a proposi- 
tion is at war with principle. It is repugnant to the nature of 
the contract. To illustrate it by the case before us: Thatcher 
and Bodley say to Bullit, Shipp & Co. , we are but accommoda- 
tion indorsers for Broadnax; sue him immediately or we shall 

ian. 1841.] Bulut v, Thatcher. 177 

consider onrselyes discharged; and thereupon they immediately 
sue Thatcher and Bodley, but do not sue Broadnaz. Can any 
one question their right to do so? Certainly not. Could 
Thatcher and Bodley say, we did not. tell you to sue us, but 
Broadnax, which you were bound to do ? Would such an an- 
swer constitute any defense to the action, and if it would not, 
there is no foundation for the position . As regards indorsers, 
the notion of their being discharged by the delay of the holder 
is predicated on the assumption that the drawer must be first 
sued, or at least it resolves itself into that, and as that is not 
true in principle, the idea is fallacious. 

When a note or bill is protested the indorser stands as an 
individual contractor, bound to lift the bill immediately, and 
will the law favor him, and ultimately discharge him for stand- 
ing out in violation of his contract? The law does not suppose 
that he can be injured by delay. It does not tolerate delay on 
his part, but requires immediate payment. If he is to be dis- 
charged by a failure to sue the maker, even after notice, it is 
but a reward for a breach of contract and of good faith. He 
has his recourse against the maker, and if there be danger of 
losing that by delay, his duty is plain; let him pay the debt ac- 
cording to his contract and take his recourse. His condition 
and his liability are different from a surety in a bond. A mere 
surety in a joint liability may resort to chancery and compel 
the holder of the bond to use proper diligence. In both cases, 
however, a new and binding contract for delay would discharge 
the surety. This view of the subject seems to be the necessary 
result from the nature of the contract, and it is supported by 
most of the adjudged cases. It is true that the decisions are 
conflicting. The cases of Pain v. Packard, 13 Johns. 144 [7 
Am. Dec. 369], and King v. Baldwin, 17 Id. 384 [8 Am. Dec. 
415], seem to be leading cases in favor of the defense here set up, 
and yet they have been much questioned even in New York. 
The question was very fully investigated by Chancellor Kent in 
the last case cited, reported in 2 Johns. Ch. 554, and he even 
denied the law to be as decided in Pain v. Packard. In the 
case of Beardsley v. Warner, 6 Wend. 610, the court refused to 
apply the rule established in Pain v. Packard, to the indorser 
of a promissory note, and he was consequently held responsi- 
ble, although he had given notice to sue. The court said: 
*' The moment the note is dishonored and notice of that fact 
duly given to the indorser, the holder's right to sue him is per* 

An. Dmo. Vol. ZZXVn— 19 

178 BuLLiT V. Thatcher. [MIssl 

foot, and this light is not impaired as long as he xemainB pas* 


These remarks apply with all their force to the present case^ 
and it is an authority directly in point, so that e^en in New 
York, where mere sureties are held to be discharged if preju- 
diced by delay, indorsers are placed on a different footing. In 
Tennessee and Alabama the courts haye adopted the rule of 
Fain v. Packard, and haye also applied it to indorsers. In the 
case of 10 Yeig.^ the court admitted that if the question were re» 
inlegra, they might have decided differently; but the question 
was settled in the case in 2 Yezg.,' and they would not depart 
from it. In that state there is a statute which may haye had 
an influence on the decision. Contrary decisions, however, are 
numerous, in which the defense here set up has been oyerruled* 
The i>oint was made in Crane y. Newell, 2 Pick. 612 [18 Am. 
Dec. 461], and held to be no defense. The reporter has added 
a note of many authorities to the same effect. The case of Hunt 
y. Bridgham, Id. 581 [13 Am. Dec. 458], was of the same 
kind. These were cases of sureties, not indorsers, and if sure- 
ties will not be discharged by mere delay, unaccompanied with 
fraud, or an agreement not to prosecute the principal, certainly 
indorsers will not. 

The same doctrine is reiterated in the case of FVye y. B€iher S 
Jennings, 4 Pick. 882, which was also a case of mere suretyship. 
The case of BiUows y. Lavel, 5 Id., was a suit on a joint and sey- 
eral promissory note, and it was held that the refusal of the 
creditor to sue the principal on the request of the surety, unac- 
companied with an offer of indemniiy against the costs and 
charges of the suit, is not a defense at law for the surety, although 
the principal may haye become insolyent. Now eyen if these 
defendants occupy the attitude claimed for them of mere sure- 
ties, still by these authorities, their defense must be unayailing. 

But the Massachusetts cases do not stand alone. They are 
fully sustained by the cases cited by counsel from 1 Bailey,' 
3 Call,* 1 Leigh,* and 5 Monroe.* The case of Kerr, Adm'r, y. 
Baker, Walker, 140, was a case of a sureiy; and it was held that 
he was not discharged by the failure to sue the principal, after 
notice giyen to do so. The most of these cases are in exact har-^ 
mony, and must be considered as decisiye of this question. 

The judgment must be reyersed, and the cause remanded. 

See Lambert v. Scm/dfordt 18 Am. Dec. 149. 

1. Tkomjwon t. WoUmh, 10 Iwg. 882. 4. Crwkghton v. 2>ii«al, 8 QiOl, 60. 

2. Hancock t. Brjfomit 3 Terg. 476. 6. MeKcKmi/ v. WaUct, 1 I^eigh, 484. 

8. BmHk ^ a. O, ▼. ify«f». 1 B«a«7's Law, 413. 0. 8Umi t. AOiUm, 6 Monnie. Ml. 






[7 Uamoami, 65.) 

LABonnr or AsnouH Belongiho to DzmBsxcr Ownu, II a* Mm 
time and plaoe, ooostiiates but one offense. 

IxDionaarF for larceny. The opinion states the case. 

r. T. OamUy tot the prisoner. 

Bent^ tor the state. 

By Court, Naptoh, J. Lorton was indicted by the grand jttiy 
of St. Lonis connly , for stealing the goods and chattels of B^ch- 
mond Cnrley and at the same time was also indicted for stealing 
the goods of one John B. Gibson. The defendant plead guilty 
to the first indictment, and to the second pleaded a former con- 
viction for the same offense. It appears from the bill of excep- 
tions that the prisoner on the day mentioned in the indictment, 
was found in a room of the Missouri hotel, in the city of St. 
Louis, at a late hour in the erening, and being seized by Bich- 
mond Curie, and one John B. Gibson, who were lodgers therein, 
and who were awakened by the noise made by the prisoner, con- 
fessed that he had been concerned in stealing goods therefrom, 
in company with another, and search being immediately made, 
the goods of said Curie and Gibson were found lying on the 
stair steps and in the passage, where they had been dropped by the 
thief, who was making off with them. The goods of Curie and 
Gibson were found precisely in the same condition. The pris- 
oner had been sentenced under the first indictment to two years' 
imprisonment in the penitentiary. The prisoner, by his counsel, 
prayed the court to instruct the jury, that if they believed from 

180 Jones i\ State. [Missouri, 

fhe eyidence that the goods of Curie and Gibeon were stolen at 
one and the same time, then the circumstance of said goods 
belonging to separate owners did not constitute several offenses, 
and that if any person by the same act and at the same time 
should steal the goods of A., B., and C, this constituted but 
one felony, or offense against the state; and that if they should 
lielieye under the preceding instruction, that the stealing of the 
^oods of said Curie and Gibson was one transaction, then the 
former conviction of the prisoner operated as a bar. The court 
refused to give this instruction; the prisoner excepted, and 
moved for a new trial, which was overruled, and the case is 
brought here by error. 

The court should have given the instructions asked by the 
prisoner. The stealing of several articles of property, at the 
same time and place, undoubtedly constitutes but one offense 
against the laws, and the circumstance of several ownerships 
can not increase or mitigate the nature of the offense. 

The judgment will be reversed. 

Stealing of SxvxaAL Abtiolbs at one time coiiBtitatea but one oifeiiM: 
State V. DatUeU, 92 Mo. 659. This, though the artlolefl belonged to diflbront 
ownen: State v. Morphin, 87 Id. 373, citing the piinoipal oaae. 

Jones v. State. 

[7 IbMOUBX. 81.] 

STATim Provision BiQuiBiNa a Court to Pass upon all OmoiAL BoHDa, 
that have been received by the olerk daring vacation, at the next teraiy 
and approve of or reject the same, is for the benefit of the public, and 
therefore a failure upon the part of the court to comply therewith. Is no 
defense to an action upon the bond. 

Rbceftion and Dbtention or an Official Bond, without objection, for a 
considerable length of time, by an officer who is required by law to pass 
upon it, is sufficient evidence of his acceptance. 

Action upon an official bond. The case appears from th« 

A. Leonard, for the appellants. 

8, M, Bay, contra. 

By Court, Tobcfkins, J. This was an action instituted in th« 
name of the state of Missouri, to the use of Blow, in a justices 
court, against Jones, Miller, and Paulsel, on a writing alleged 
to be Jones' official bond, as constable, for his failure to make 
return of an execution delivered to him as constable, to be eze- 

Aug. 1841.] Jones v. State. 181 

cuted. Upon tiie trial in the justices' court, judgment was 
given against the defendants, and they removed the cause hj 
appeal into the circuit court of Cole couniy. In that court the 
following case was agreed on by the parties, viz. : That Jones was 
elected constable of the township of Jefferson on the fourth day 
of August, 1838, and that on the twenty-second day of the same 
month he as principal, with Miller and Paulsel as securities^ 
signed and sealed an instrument of writing set out in the rec- 
ord, and purporting to be the official bond of Jones as con- 
stable; that on the said day of the date of that bond it was 
offered to the clerk of the county court, as Jones' official bond» 
and that the clerk received the same, and indorsed it as filed » 
and to such indorsement subscribed his name, and filed it in his 
office, where it has ever since remained, and now still remains; 
that the clerk, at the time of receiving such instrument, was ac- 
quainted with the securities, but did not recollect that he exer- 
cised his judgment upon their sufficiency, or upon the sufficiency 
of the bond; that the next succeeding term of the county court 
of Cole county was held, and that neither at that, nor at any 
subsequent term of said court was the said instrument of writ- 
ing either approved or rejected by the court, nor was it ever 
presented to said court for any action thereon; that the clerk 
never made any writing or entry either approving or rejecting 
such instrument, nor did any act approving or rejecting said 
instrument, except as aforesaid. It was also admitted that 
Blow obtained a judgment, sued out execution, and delivered it 
to Jones, the defendant, as stated in the complaint, and that 
Jones &iled and neglected to return the said execution, as 
charged in the plaintiff's complaint. It was further agreed, 
that if upon these facts the court should be of opinion that the 
writing was obligatory upon the defendants, Miller and Paul»el 
as their bond, their judgment should be given against all the de- 
fendants, otherwise it should be given for them. The circuit 
court decided that the instrument of writing was obligatory on 
all the defendants, as the official bond of Jones. To reverse 
the decision of the court on this point this appeal is prosecuted. 
The act respecting constables provides, that the bond shall be 
approved of by the court, or clerk in vacation, and if taken by 
the clerk in vacation, shall be approved of or rejected by the court 
at the next term. The delivery of the bond by the defendants is 
admitted, the clerk received the bond from their hands and marked 
it " filed," and placed on his files, which he had no authority in 
law to do unless he had previously exercised his judgment on 

182 Joins V. State. [Mia9oiiii 

tbe mxUdetkcj of tbe bond, and appioTed it. This act of the 
dark, flMn, appears to me to be condoaiTe eridanoe tibat he did 
approre the bond; for the htw nowhere dedaies in what mannflr 
hia i^ypiobation shall be expressed: See the act at p. 116 of the 
Digest of 1836. Bat neither at the next term, nor at any sabse- 
qnent term, did the coonij court express any will either to i^ 
piOTe or to reject the bond. By this n^lect of the county court, 
the pablic might be anfferers in case the secnrities were in- 
sufficient (and it is not contended that the instrament of writing 
is not expressed in apt terms), bat certainly the failaie of the 
cooniy coart to act on this instrament of writing at the first or 
any sabseqoent term, coald do Jones and his securities no in- 
jozy. He wanted the emoluments of office, and he enjoyed 
them; the action of the coort on the bond was required by law 
only to secure more effiBctaally the interests of the rest of the 
community. It seems then, to me, that this bond ought to be 
held good against Jones and his secority. 

In the district courts of the United States it has been decided 
that the reception and detention of an official bond by the post- 
master-general, for a considerable time without objection, is 
sufficient evidence of its acceptance: See 1 Peter's Dig. 383; on 
this authority, then, as well as on the reasonableness of the 
thing, we may rest an opinion that the clerk of the county court 
of Cole county accepted and approved the bond in the sense of 
the statute. In the United States v. Tuyvy,^ the supreme court 
of the United States held that a Yoluntoiy bond given to the 
United States and not prescribed by law, is a valid instrument. 

The bond of Jones then is good, because he voluntarily with 
his securities executed it, and its obligatory character is not in- 
validated because the act of the legislature required him to exe- 
cute one, although it has not been approved by the court; as 
before observed, the omission of the county court to approve 
this bond, could not possibly injure him and his security, and 
ought not to impair the security which suitors were intended to 
derive from the action of the county court. 

For the reasons above given, the judgment of the circuit court 
ought to be affirmed, and in this opinion each member of the 
court concurs; and it is accordingly affirmed. 

Validity or an Oftioial Bond can not be imi^eached by the officer or liii 
anretiee, beoauBe it does not conform to the statute, if the bond is in a oondi- 
tion more favorable to them than it would have been had it pnmied the 
•tatate: Kinctmnon v. Oarroll, 90 Am. Deo. 391. 

1. ITMCmI SUUet T. Tingeg, 6 Pitofs. 114. 

Aug. 1841.] PosET V. Gakth. 18S 


[7 Uamauwx^ M.] 
An EiiFU>m DmcwABOEP bxpobb thk CoKPLBnoN ov thb Tim or Skrt- 
i<» for which he has been engaged, for fiKdt or miaoondnoi upon hk 
p«rt^ of sufficient aggraTation to justify the discharge, is not entitlad to 
any compensation for the services aotoally peifonned. 

Appeal from Howard ciromt. The opmion stateB the case. 

Clarke for the appellant. 

Dovigy wntra. 

By Oourt, Scott, J. Bird Posej was employed bj Dabney 
Garth, as overseer, for one year, at the price of one hundred 
and seyenty-five dollars; his term of service commenced on the 
first of Januaiy , 1838, and he continued industriously employed 
for Oarth until some time in April following, when Garth told 
Posey that he must leave his service, that he had been negligent, 
and had maltreated and injured his negroes. Thereupon Posey 
left Garth's employment. It appears that Posey, the day before 
he was ordered to leave Garth's service, for some fault supposed 
to have been committed by one of Gturth's negroes under his 
control, attempted to punish the negro by whipping; the negro, 
the bill of exceptions states, resisted by refusing to obqr Posey's 
order. Posey thereupon struck the negro with a hand^ike and 
knocked him down, and then beat him with the handspike in 
such a manner that in four days thereafter he died from the effect 
of the blows. Posey afterwards instituted an action against 
Garth for his year's wages, claiming the whole amount, and re- 
covered sisfy-one dollars, the costs being adjudged against him. 
A new trial was asked for by Posey, and refused, and he brings 
this cause here by appeal. Under this state of facts is he ag- 
grieved by the judgment of the court below ? If a person re- 
tain a servant for a year at wages, the performance of the service 
is a condition precedent to the payment of wages, and the serv- 
ant can not recover them before he has performed the year's 
service. If he is prevented by his employer from fulfilling his 
contract, and is wantonly and without sufficient cause dischaiged 
before the expiration of the period for which he was hired, he 
is entitied to the wages for the whole period he was to serve; 
but if there is any fault or misconduct in him towards his em- 
ployer ^niffident to warrant his discharge, {uad in consequence 
thereof he is driven from the service of the person by whom he 
is hired, he is not entitied to any wages. Beciprocal justice re- 

184 PosET r. Gakth. [Missouri, 

qniies iliat such should be the law of contracts, of this charac- 
ter; if it were otherwise, then while the employer is bound bj 
his coninust to retain the servant, although it may be against his 
inclination, for the whole period of his service, or pay him the 
whole wages, the servant by his misconduct may compel his em- 
ployer for his own security to discharge him, and then recoTcr 
wages for the term he has served* So, while the contract is 
binding on the employer, the servant is bound or not, at his op- 
tion. Such a construction of the contract would encourage 
fiB,ud and wickedness in servants, and induce them, whenever 
their inclination prompts, to be guilty of such enormities as will 
compel their discharge. 

Justice Lawrence remarked, in the case of Cutier y. Posver,^ 
6 T. B. 827, that a servant, although hired in a general way, is 
considered to be hired with reference to the general understand- 
ing on the subject, that the servant shall be entitled to his wages 
for the time, though he does not continue in the service during 
the whole year. This remark of the learned judge, torn from 
its context and placed in some elementary works, has been made 
to give countenance to the idea, that if there is a termination of 
the service by the fault of the servant before the time agreed on, 
the servant is entitled to wages for the time he served, when it 
is obvious the judge was speaking of the termination of the con- 
tract without the fault of the servant, for it is observable that 
this principle was stated in a case in which the court unanimously 
held, that if a sailor hired for a voyage, take a promissory note 
from his employer for a certain sum provided he proceed, con- 
tinue, and do his duty on board for the voyage, and before the j 
arrival of the ship, he dies, no wages can be claimed either on 
the contract or on a quantum meruii. This case, however, was 
decided on the peculiar nature of the contract, and is not to be 
regarded as an authority in support of the doctrine, that if a 
servant who is hired for a year die in the middle of it, his exec- 
utor can not recover part of his wages in proportion to the time 
of service. This was the old law, it is otherwise now. 

Was ther conduct of Posey such as to warrant his discharge? 
Have mercy and humanity left this earth, that this question 
should be asked? Gould Garth, as a master owing protection 
to his slaves, any longer retain such a man in his service, he not 
only had a right to discharge him, but it was his duty to do it. 
A mere disobedienqjB of orders seems to have been the fault of 
the negro; for although the record states that the negro resisted, 

1. Cutler V. Powell, 

Sept. 1841.] Potter v. Dillon. 185 

yet it appears that his resistance consisted in disobeying orders, 
and that too when he was about to be whipped. Should one re- 
tain in his employment another, who for such a provocation 
would with a handspike knock down his slave, and then con- 
tinue his blows until they caused his death? 

As it regards the question of costs, inasmuch as the plaintiff 
was not entitled to recover anything, he can not complain that 
they were adjudged against him, and as the defendant does not 
seek to reverse the judgment, let it be affirmed. 

Whieb ▲ Skrvant Enoaobd fob a DsroriTB Pbbiod, before its expira- 
tion abandons his master's service, he can recover nothing for the services 
actually performed: Henton v. Hampton^ 32 Mo. 410; Schnerr v. Lemp, 19 
Id. 42, affirming the principal case. But if the abandonment is caused by a 
dereliction of dnty npon the part of the master a quantum tneruU will be siis- 
i: 8Uk v. Ounnmgham, 8 Id. 132. 

Potter v. Dillon. 

[7 ICnaouxi, 238.] 

Av AooBPTAiroB BT Onb Member or a Fibm of a Bill of Bxobahob, 
which represents a private debt of hLf own, binds the firm, Lf the holder 
of the bill was ignorant of the nature of its consideration. 

AonoN upon an acceptance of a bill of exchange. The opin- 
ion states the case. 

Gamble and Walker, for the appellant. 

Holmes, contra. 

Bj Court, ToupKms, J. Potter brought this suit against Dil- 
lon before a justice of the peace. The matter being submitted 
to the justice, he found a verdict and gave a judgment for the 
plaintiff. The defendant Dillon then appealed to the court of 
common pleas. In this court the evidence was detailed to a 
jury, and a verdict being found by them for the plaintiff, the 
court gave a judgment accordingly. The suit is brought on a 
bill of exchange, drawn by one Charles F. Downing on Beilly 
and Dillon, in favor of the plaintiff, Potter. This bill was ac- 
cepted in writing by Beilly & Dillon. The acceptance was in 
the handwriting of Beilly; at the time of the acceptance Beilly 
was a partner of Dillon in business. Evidence was given by 
the defendant to prove that nothing was found on the books of 
Beilly and Dillon to show that there had ever been any dealings 
betwixt the plaintiff and the firm of Beilly & Dillon; but that 

186 Potter u Dillon. [Misriouri 

prevloiislj to the partnership betwixt them, there had been 
flome bofiinees transactions betwixt the plaintiff and Beilly, 
which were not known to be settled. That the drawer had 
been, and was at the time the bill was drawn, a clerk of Beillj 
& Dillon. A letter from the plaintiff to Dillon was also read 
in evidence, in which Potter states that he holds an order drawn 
by Charles F. Downing for one hundred dollars, and accepted 
by Beilly & Dillon, etc. He says something is due, he sup- 
poses about fifty dollars. The court instructed the jury, that 
if they believed that this acceptance was given by Beilly to 
plaintiff to pay a separate debt of Eeilly, and that Potter knew 
that Beilly was using the partnership name to secure his own 
private debt, they will find for the defendant. The defendant 
moved for a new trial for the usual reasons, that the verdict 
was against evidence, etc., and that the jury were misled by the 
instructions of the court. 

The instructions of the court were in my opinion, and accord- 
ing to the showing of the defendant himself in his brief, very 
correct. This being my opinion, it might be sufScient to stop, 
but the defendant, appellant here, seems to think that after a 
finding against him by a justice of the peace acting the part of 
a jury, and also by a jury acting under the direction of the 
court of common pleas, that still the finding is against evi- 
dence. To order a new trial in such a case would be but an ap- 
peal from one jury to another, with this further evil, that it 
would hold out a temptation to parties, even honest parties, to 
be negligent in the production of their evidence in the first 
trials. The court of common pleas, with better opportunity to 
judge of the credit due to the witnesses, than we have, was 
satisfied with this verdict. But the defendant has not even 
taken the precaution to exclude the presumption that there 
might have been other evidence given to the jury. 

The judgment of the court of common pleas is a£Brmed. 

A NoTB ExscuTKD BY Onb Partneb in the firm name, and issued in pay* 
ment of his private debt, is not binding upon the firm if the party receiving 
the note knew of its consideration: Lannng v. Oame, 3 Am. Dec. 422; LUh 
ingsion v. Booaevelt, 4 Id. 273; but if such note has passed into the hands of 
a bona fide holder it will bind the firm: N. T. Firemen** Ina. Oo. v. BentteU, 
13 Id. 109. 

Sept 184.1.1 King v. Lane. 187 

King v. Lanb. 

(7 MmouBi, Ml.] 

TBI Tim OF LnnxATioir of as Action upon ▲ Gontraot depandi upon 
the law of the place where the action is institated, and not apon the law 
of the place of contract. 

Thb Saving in a Statutb of Limitations of a Rkhxdt until thx "Bi- 
turn" of the defendant, where the caose of action has arisen ahroad, a^ 
plies as well to foreigners who have never been in the state as to citizens. 

Appeal from St. Louis drouit. The opinion states the case. 

By Oourty Soott, J. William B. King and Ann F. Lane were 
fesidents of the state of Yiiginia, in the year 1825. While still 
residing there, King ezeoated two bonds to Lane, payable in 
November, 1826; afterwards, in the year 1834, King left Vir- 
ginia and became a resident of this state, and some years there- 
after died, and the appellant administered on his estate. Ann 
F. Lane is still a resident of the state of Virginia, and com- 
menced this suit against the appellant in July, 1840. The ques- 
tion arising upon this state of facts is, whether an action of debt 
on the bonds is barred by our statute of limitations, limiting an 
action of debt on bonds and promissory notes to ten years. 

It is a general and well-established principle of law, that in 
contracts the time of limitations depends on the law of the 
country in which the action is brought, and not on the law of the 
country where the contract is made; or in other words, on the 
lex fori, and not on the lex lod contractus. For although con- 
tracts are to be construed according to the laws of the country 
in which they are made, or according to the laws of that country 
in reference to which they are made, yet the remedy on them 
must be conformable to the laws of that country in which the 
remedy is sought. This principle was early recognized in the 
English jurisprudence. 

In the case of Dupleix y. De Boven, 2 Vem. 640, a bill was 
filed for a discoyery of assets and satisfaction of a debt con- 
tracted in Borne, and the English statute of limitations was 
pleaded, and the court allowed the plea. In the case of Stirthost 
y. Graeme,^ 2 Bl. 723, and 3 Wilson, 145, the plaintiff was be- 
yond seas in Germany, and had always resided there. Upon a 
demurrer to this fact set out in a replication to a plea of non 
cssumpsUy infra sex annos, the court said, *' if the plaintiff is a 
foreigner, and does not come to England in fifty years, he still 
hath six years after his coming to England to bring his action; 

188 King v. Lane. [Missouri, 

and if he never comes to England himself he has always a right 
of action while he lives abroad, and so have his executors or 
administrators after his death." In the case of WiUiams v. Jones, 
13 East, 439, both plaintiff and defendant resided in India, when 
the promise on which the action was founded was made, and 
continued to reside there for more than six years after the mak- 
ing of the promise, and afterwards upon the return of the 
defendant to England, upon a demurrer to a plea of non assump- 
sU, infra 8ex annos, the court held that the plaintiff was not 

By the common law the plaintiff had an unlimited right of 
suit, till barred by the statute of limitations. The statute con- 
tains exceptions, and if the plaintiff brings himself within those 
exceptions, there is no statute restraining his right of action. 
By the word plaintiff in the statute is included as well foreigners 
as residents; foreigners who are not, and who never have been 
within the state; and the word defendant also includes for- 
eigners who may contract abroad, and afterwards come into the 
state. Whether the defendant be resident of the state, and is 
occasionally absent, or whether he resides altogether out of the 
state, is not material. If the cause of action arises abroad, it is 
sufficient to save the statute from running in favor of the party 
to be charged until he comes within our state. It is not to be 
inferred that because the statute uses the word ''return," that 
therefore it contemplates only residents, who occasionally go 
abroad; it was designed to apply to foreigners who always re- 
side out of the state, and who may be found here to be served 
with process, as well as to residents. In the case of Buggies v. 
£eeler, 8 Johns. 263 [3 Am. Dec. 482], Judge Kent, in- a mas- 
terly manner, sustains this construction of the English statute of 
limitations, which so far as the merits of this case is concerned » 
is like our own. As to the question, whether this case is to be 
determined by the act of limitation of 1825 or 1835, it will be 
remarked, that the eleventh section, article 3 of the act of 1835 
says, that if the action accrued before the taking effect of the 
said act, the statute of 1825 shall give the limitation. This ac- 
tion accrued before the act of 1835, and is consequently subject 
to the statute of 1825. The application of this statute to the 
pleadings in this cause will show that errors have been com 
mitted by the court below in overruling and sustaining de- 
murrers, and this is an apology for not giving a statement of 
the pleadings. But as on the record all the facts appear, and 
as there is no dispute about them, and as upon the whole, judg- 

Sept 1841.] King v. Lank 18f> 

ment has been rendered for the party who was in the right, 
judgment affirmed. 

Judgment wUl still be rendered for the plaintiff against the 
appellant, as administrator of William B. King, and the judgment 
below being against the appellant personally, is reversed, and 
judgment will be entered in conformity to this opinion, and the 
appellee will pay the costs. 

Lex Fori Rxoulatbs ths Tihb of Ldcitatiok: Levy y. Botu, 23 Am. 
Deo. 134, and note citing the other cases in this series to the same effect. 

Ths Lkx Foai is that which must DarERMiinB whether a limitation has 
attached to a right of action : Oamon v. HunUr, 46 Mo. 460, citing the principal 

Pbovibion Dxlatxno ths BumoNo of thx Timb of Limitation until the 
retnm of the defendant, if he be out of the state when the action accmes, 
presents the statate from nmning in favor of a non-resident, who afterwards 
removes into the state, until sach removal: Taffori v. Indiana, 15 Mo. 209. 
The statute of 1845, however, changed this rule, by restricting its operation 
to cases where the defendant was a resident of the state: ThamoB v. Blaek, 
22 Id. 332; 8mUh v. Newby, 13 Id. 165. 


nr THi 




[13 Ksw Haxpbbzbb, 9.] 

AsTBBflB PoflsisnoN.— Entry under Color of Tttlb must bb Aooom- 
PANIXD by sach acts of owDership, that the leaaonable presmnptkm it 
that the owner, who knew of them, most have understood that a daim 
adverw to his own ia asserted, to oonstitate adTerse possession* 

Idkh. — ^Whxbs a Dekd Conybtb Two Tracts, to one of whioh alone the 
grantor has title, an entry upon and occupation of that tract wiU not 
operate a disseisin of the owner from the other. 

Ibni.— To CoKstrnm Adverse Possession there must be an actual pos- 
session of some part of the land of the owner against whom the possessioift 
is invoked. 

Usa OF Land m common with Maitt Others, who Claim no TnuB 
Thereto, there being nothing to distinguish the use of the claimant from 
that of the others, will not oonstitnte adverse possession, though the acts 
of user, had they been exclusive in the claimant» might have been suffi- 

Writ of entry. In 1815 Amps Town conveyed the demanded 
promises, two lots on the highway, passing through the viUage 
of Bath, and also a third lot on the other side of the highway 
and immediately opposite, to Ebenezer Carleton, defendant's 
predecessor in interest. At that time Amos Town had title to 
the tract last mentioned, but not to the demanded premises. 
Upon receiving his deed Ebenezer Carleton went into possession 
of the lot opposite the demanded premises, and ever since he or 
his successors have remained in possession thereof. Plaintiff 
however contended that his possession of the demanded prem- 
ises did not originate before 1821, a period of less than twenty 
years before the institution of this action, which was commenced 

July, 1841.] Bailey v. Cableton. 191 

in 1837. The defendant on the contraiy insisting that the pos- 
session began in 1815, and relying as a defense upon a peaceable 
and nninteimpted possession of twenty years. The eTidence as to 
the possession between 1815 and 1821 is detailed in the opinion. 
The paper title to the land in controyersy was in plaintiff. The 
jury was instnicted that an entry upon and occupation of some 
portion of each tract was necessary to give a titie by possession 
thereto; that an entry upon any one tract would not extend the 
possession beyond its limits, and that though possession might 
be acquired by using a lot as a place of deposit for lumber or 
farm utensils, yet such possession must be open, visible, and of 
such a character as to give the owner notice that an adverse claim 
was asserted. Defendant now moved to set aside the verdict 
obtained by plaintiff upon the ground of misdirection. 

J. L. CarleUm and Bell, for the defendants. 

OoodaU and BartkU^ conira. 

Pabskb, 0. J. The general rule that where a parly having 
color of titie enters into the land conveyed, he is presumed to 
enter according to his title, and thereby gains a constructive 
possession of the whole land embraced in his deed, seems to be 
settied by the current of authorities: BOey v. Jamegon, 8 N. H. 
27 [14 Am. Dec. 325]; Lund v. Parker ^ Id. 49, and cases 
cited. And such entry may operate as a disseisin of the whole 
tract; and the possession under it, continued for the term of 
twenty years, may be deemed an adverse possession, which will 
bar the entry of the owner after that lapse of time: Land v. Par* 
her, 8 N. H. 49; Jackson v. Mis, 13 Johns. 118; Jackson v. Smiih, 
Id. 406; Jack8(m v. Newton, 18 Id. 355. 

Exceptions have been suggested to the rule in some cases. 
One is, where a large tract of land is embraced in the deed, and 
a small part only has been improved: Jackson v. Woodruff, 1 
Cow. 276 [13 Am. Dec. 525] ; Jackson v. Vermilyea, 6 Id. 677. 
Another, where the deed under which the claim is made includes 
a tract greater than is necessary for the purpose of cultivation, 
or ordinary occupancy: Jackson v. OUe, 8 Wend. 440. These 
exceptions seem not to be very definite in their application, for 
lots, like other things, are large or small by comparison, and a 
tract which would be much too large for cultivation by one, 
would not sufSce for another. But they serve to show the prin- 
ciple upon which the rule is founded. It is, that the entry and 
possession of the party is notice to the owner of a claim asserted 
to the land; that the limits of such claim appear from the deed; 

192 Bailey ik Carleton. [N. H, 

and that if the owner for twenty years after such entry, and 
after notice, by means of the possession, that an adverse claim 
exists, asserts no rights, he may well be presumed to have made 
some grant or conveyance, co-extensive with the limits of the 
claim set up; or that, after such lapse of time, a possession, 
under such circumstances, ought to be quieted. 

There should be something more than the deed itself, and a 
mere entry under it — something bom. which a presumption of 
actual notice may reasonably arise. It is not necessary to show 
actual knowledge of the deed. Acts of ownership, ndsing a 
reasonable presumption that the owner, with knowledge of them, 
must have understood that there was a claim of tiUe, may be 
held to be constructive notice, that is, conclusive evidence of 
notice: Rogers v. Jones ^ 8 N. H. 264. The owner may well be 
charged with knowledge of what is openly done on his land, 
and of a character to attract his attention. The presumption of 
notice arises from the occupation, long continued; and the 
notice of the claim may well be presumed, as far as the occupa- 
tion indicates that a claim exists, and the deed, or color of title, 
serve to define specifically the boundaries of the claim or pos- 
session. If the occupation is not of a character to indicate a 
claim which may be co-extensive with the limits of the deed, 
then the principle that the party is presumed to enter adversely 
according to his title, has no sound application, and the adverse 
possession may be limited to the actual occupation. Thus cut- 
ting wood and timber, connected with permanent improvements, 
may well furnish evidence of notice that the claim of title ex- 
tends beyond the permanent improvements, and the deed be ad- 
mitted to define the precise limits of the claim and possession, 
provided the cutting was of a character to indicate that the claim 
extended, or might extend, to the lines of the deed. It might, 
at least, well indicate a claim to the whole of a tract allotted 
for sale and settlement, of which the party was improving part, 
unless there was something to limit the presumption. But no 
presiunption of a claim, and of color of title beyond the actual 
occupation, could arise respecting other lots than that of which 
the party was in possession. And where the possession was in 
a township, or other large tract of land, which had never been 
divided into lots for settlement, no particular claim, beyond the 
actual occupation, would be indicated, and of course no notice 
of any such claim of title should be presumed: Jackson y, Eu^ 
ards, 6 Cow. 617; Sharp v. Brandow, 16 Wend. 697. 

If the possession was not of a character to indicate owner- 

July, 1841.] Bailey v. Oarleton. 193 

ship, and to give notice to the owners of an adverse daim, al- 
though the grantee might be held to be in possession according 
to his title, in a controversy with one who should make a sub- 
sequent entry without right, his possession ought not to be held 
adverse to the true owner, to the extent of his deed, merely by 
reason of the deed itself, even if recorded, nor by any entry un- 
der it. There are several cases which tend to sustain this view 
of the principle: Poignard v. Smith, 6 Pick. 172, 176; Jlden v. 
Oilmore, 13 Me. 178; Prop'rs of Kenneheck Purchase v. Springer, 
4 Mass. 415 [3 Am. Dec. 227]; Hapgood v. Burt, 4 Yt. 156; 
Buring v. Burnet, 1 Pet. 41;* Little v. Megquier, 2 Greenl. 176. 

We are of opinion that the rule can not apply to a case where 
a i>arty, having a deed which embraces land to which his grantor 
had good title, and other land to which he had no right, enters 
into and possesses that portion of the land which his grantor 
owned, but makes no entry into that part which he could not 
lawfully convey. There is no notice in such case to the owner 
of the land thus embraced in the deed, and no possession which 
can be deemed adverse to him. If it may be said that the color 
of title gives such a constructive seisin and j>ossession that the 
grantee could maintain trespass against any person who did not 
show a better right (that is, a title, or prior possession), there is 
nothing in the nature of it which can give it the character of a 
disseisin, or possession adverse to the true owner, so as to bind 
him. For that purpose, there must be actual possession of 
some portion of the land of such owner, and that of a nature 
to give notice of an adverse claim. 

It is not necessary to settle whether an entry into an inclosed 
lot, under a deed purporting to convey uninclosed lands adjoin- 
ing, belonging to the same person, would operate as a disseisin 
of the latter. Where two separate lots, included in the same 
deed, belong to different owners, an entry into one can in no 
way operate as a disseisin in relation toiihe other. The entry 
into the house lot, therefore, to which Amos Town, who con- 
veyed, had title, was no disseisin of Solomon Town, who had 
title to the lot uninclosed, on the other side of the road. 

The next question is, what entry into the land itself is suffi- 
cient. Here was an entry in 1821, upon the tract in dispute, and 
a possession, by placing a building on it, by Ebenezer Carle- 
ton,, the grantor of the defendants. This was, without doubt, 
an act of ownership. The character of it was adverse to the 
title of Solomon Town, and it was of a nature to give notice that 

• 1. U PB«ets,41. ^ 

Am. Dao. Vol. XXXVn— IB 

194 Gale v. Tappan. [N. H. 

Carleton claimed title to that land. But the possession before 
that time was of a more ambiguous character. 

Ebenezer Carleton, to whom the conyejance was made in 
1815, made no entry or use of the lot up to 1821, except by lay- 
ing lumber upon it, or placing farming utensils there. Those 
acts by one having a deed, if nothing further was shown, might 
be held to be a sufficient entry and possession to operate as a 
disseisin of Solomon Town. But it appeared that so far as the 
laying of lumber on the lot was concerned, this was no more 
than Carleton, and divers other persons, had been in the habit 
of doing before, and that others continued to do the same after- 
wards. Those acts, prior to 1815, were done by him, and others, 
without claim of title, and of course in subservience to the title 
of the true owner. If not acknowledged trespasses, they must 
havel)een under a license from Solomon Town. The same acts 
continued after a deed of other lands, by a person having good 
title to those lands, could not operate as any notice to the 
owner of this tract, that a deed had been made covering his 
land also, and that there was an occupation under that deed, or 
under any claim of right to occupy adversely to him. The ad- 
ditional act of leaving farming tools on the land does not seem 
to change the character of the possession. It was not, there- 
fore, until 1821, when the building was removed on to the land, 
that any entry was made upon it by Carleton, from which Solo- 
mon Town, with knowledge of the entry, should have under- 
stood that Carleton made any claim to the ownership of the lot; 
and until that time, therefore, there was nothing from which an 
ouster can be inferred, and no possession by him that can be 
deemed adverse, except at the election of the ovnier: Magoun 
T. Lapham, 21 Pick. 140; Thimaa v. Fatten, 13 Me. 886. 

Judgment for the plaintiff. 

Woods, J., having been of counsel, did not sit. 

AnvxBSB PosBiSBioN DT WHAT CONSISTS: Soe Sumner v. Mwrpkift 27 Am. 
Deo. 387; SmUh v. Ho§mer, 28 Id. 354, and note. 

Gale v. Tafpah. 

[13 New Hampibibk, li6.] 

KviBBfCB OF Idbmtut of a Pbbson upon whom DncAHD OF Patmxiit 
has been made with the maker of a note is snffioient, if it appear that a 
demand was made at the latter's office upon a person who acknowledged 
his signature to the note, appeared familiar with the transaction, and 

Dec 1841.] Gale v. Tappan. 196 

placed his refusal to pay upon the ground that there had been troable 
about the note; though the party presenting, not knowing the maker, ia 
unable to testify positlyely that the denumd was made npon him. 
Power of Attornv t to Collsct a Dkbt is Beyokxd bt Death of the 


to make a demand does not estop the party from afterwards showing 
that the authority was revoked, when the demand was made, by the 
death of thn principal 

AssuMPsn' by the executors of Hannah Tappan, upon a prom- 
issory note, payable on demand at defendant's office, executed 
by defendant. The demand relied upon was made by one 
Eaton in 1839. Eaton's authority was deriyed under a power of 
attorney, executed by plaintiffs testator, but it was contended, 
on the part of defendant, that this authority had been revoked 
prior to its exercise,. by the death of Hannah Tappan, which oc- 
curred 171 1838. Defendant also claimed that there was no suffi- 
cient evidence that a demand had been made upon him. On 
this point Eaton testified that he did not know defendant, and 
therefore could not testify positively that the demand was made 
upon him, but the demand was made upon a person that he 
found in defendant's office, and that person did not deny his 
signature to the note, and placed his refusal to pay upon the 
ground that there had been trouble about the note. A verdict 
WHS taken for plaintifiTs, subject to the opinion of the court on 
\Le above case. 

James BeU, for the plaintiff. 

BarUeUy contra. 

GxLOHBiST, J. The first objection taken by the defendant can 
not be sustained. There is nothing in the case to raise a pre- 
sumption that the demand was made upon any other person than 
Tappan, the defendant. The person called upon appeeured to be 
familiar with the transaction, did not deny his signature to the 
note, and said that there had been trouble about it. He was 
also found at the defendant's office; and not only is the evidence 
competent to be submitted to the jury to prove a demand upon 
the defendant, but it is difficult to resist the conclusion that the 
defendant was the person upon whom the demand was made. 
The other objection, however, is fatal to the maintenance of this 
suit. The demand was made by Eaton, not in pursuance of any 
authority, written or verbal, from the executors, but under the 
power of attorney from Hannah Tappan. He showed his au- 
thority to the defendant, who said he was satisfied as to the 

196 Gale v. Tappan. [N. tt 

power of atiomej. He might be satisfied that it was executed 
by Mrs. Tappan, and that, upon its face, it sufficiently author- 
ized Eaton to make the demand; but this does not now estop 
him from taking the objection, that the authority was then de- 
termined by the death of the principal. He might not then 
have known of her death; or he might have supposed that the 
demand was made as well under an authority derived &om the 
plaintiffs, her executors, as under the power of attorney. 

It has been often settled that an authority of this kind is de- 
termined by the death of the principal. Where a man makes a 
deed of feofi&nent to another, and a letter of attorney to one to 
deliver to him seisin by force of the same deed, the death of the 
feoffer is, in law, a countermand of the letter of attorney: Co. 
Litt. 52 b. An authority confirmed by letter of attorney must 
be executed during the life of the principal;, for a power to rep- 
resent another can only continue so long as there is some one to 
be represented: Bac. Abr., Authority, E. A payment of the 
wages of a sailor to a person having a power of attorney to re- 
ceive them, has been held void, where the principal was dead at 
the time of the payment: Wallace, Adm'r, v. Cook, 5 Esp. 118. 
And a power of attorney, authorizing the sale of a vessel, is re- 
voked by the death of the owner: Wallace et ux.^Adm'x, v. King^ 
1 Stark. 121. And the same point seems to have been determined 
in a case in equity, where a power to a creditor to receive a debt, 
expressly for the purpose of liquidating the claims of the cred- 
itor, unaccompanied, however, by any actual assignment of the 
debt, or by any security to which the power might have been an- 
cillary, was held to be revoked by the death of the principal: i 
Lepard v. Vernon, 2 Yes. & B. 61. To the same point, also, are 
the cases of Harper et al. v. LUtle, 2 Greenl. 14 [11 Am. Dec. 25]; 
Bex V. Corporalion of the Bedford Level, 3 East, 356;' and Baw 
V. Alderson, 7 Taunt. 453. As the authority of Eaton, there- 
fore, was determined by the death of Mrs. Tappan, before the 
demand was made upon the defendant, the verdict must be set 
aside, and a 

New trial granted. 

Aobnt'b Authobitt is Bxvokbd bt Dbath of Pbingipal, if not ooapled 
with an interest: Staples v. Bradbury, 23 Am. Dec. 494; Jentins v. AtHns^ 
34 Id. 648. 

1. WaUonr.King. S. 6Eaat,8M[ 

I>e& 1841.] State v. Ddiick. 187 

State v. DmioK. 

113 Nsir HAXPrazBS. 194.] 

in any tenitory which she may oode to the United Statea. 

A Statb Court mat on Habsas Corpus inquire into the validity of any 
detention of liberty which it is attempted to justify tmder pretense of 
anthority derived from the United States. Thus it may pass upon the 
validity of an enlistment, and its sufficiency to justify the detention of 
a petitioner as a soldier. 

0TATUTB Provision that an Invant shall not bb Enustbd without the 
conaent of his parent or guardian ia for the benefit of the infant; and if 
it is not complied with he may waive the irregularity and ratify the en- 
listment upon becoming of age. 


pressed within a reasonable time after he comes of age, or it will be 
treated as ratified. The assent can not be postponed for more than a 
year in the absence of any special features. 

Habeas oobpus on the petition of Nathan Murray, complain- 
ing that he is detained of his liberty by defendant, a captain in 
the United States army, by virtue of an enlistment, which peti- 
tioner insists is void, because entered into by him while yet an 
infant without the consent of either parent or guardian. The 
writ was served upon defendant in Fort Constitution. The opin- 
ion states all the other facts. 

Odell, for the respondent. 

Emery, contra. 

Pabeeb, 0. T. The objection, that this court has no jurisdio* 
tion to send process into that portion of territory, lying within 
the limits of this state, ceded by the state to the United States, 
and occupied for a fort and light-house, can not be supported. 
The act, bj which the United States hold it. Tests in that gov- 
ernment the land, with the fort and light-house thereon, with 
all the jurisdiction thereof which is not reserved by the act. 
One proviso in the act of cession is, " that all writs, warrants, 
executions, and all other processes of eveiy kind, both civil and 
criminal, issuing under the authority of this state, or any officer 
thereof, may be served and executed on any part of said land, 
or in said fort," etc. There is nothing in this proviso repugnant 
to the grant. The transfer of the title to the land does not oust 
the jurisdiction of the state, which may well extend over lands 
owned by the United States. The jurisdiction granted to the 
United States is not a general grant, but all which is not re- 
served by the act. If, as has been suggested, the United States 

198 State v. DmiCK. [N. H. 

could not receive the cession with the reservation, they could 
not by it take what is not granted. The jurisdiction to issue 
and execute all imts, and other legal process there, includes 
the writ of habeas corpus : Ex parte Carlton^ 7 Cow. 471. Nor 
can the objection be maintained, that this is a case arising under 
the laws of the United States, of which the courts of that gov- 
emment have exclusiye jurisdiction. 

If the laws of the United States justify the detention of the 
applicant, there is nothing illegal. If they do not, it is not a 
case arising under the laWs of the United States, although it 
may be under color or pretense of authority by virtue of tiiose 
laws. But a mere pretense of authority under the laws of the 
United States, is no better than any other pretense. It neither 
confers an exclusive jurisdiction on the courts of the United 
States, nor ousts the ordinary jurisdiction of the courts of the 
state. Nor .can it make any difference that the illegal imprison- 
ment, if there be one, is by an officer of the United States army. 
The courts of the United States have no exclusive jurisdiction 
over those officers: Carlton, Matter of, 7 Cow. 471; Oommon- 
wealth V. Harrison, 11 Mass. 63; CommonweaUh v. Oiuihing, Id. 
67 [6 Am. Dec. 156J. 

The petition alleges that the petitioner, at the time of his en- 
listment, was under twenty years of age, and that the enlistment 
was without the consent of his parents.. The evidence supports 
these allegations, and they are not controverted in the return. 
The act of congress of January 20, 1813, provides that no per- 
son under the age of twenty-one years shall be enlisted, or held 
in service, without the consent, in writing, of his parent, guar- 
dian, or master, if any he have, and that the officer enlisting any 
person, contraiy to the true intent and meaning of the act, shall 
forfeit and pay the amount of the bounty and clothing he may 
have received: 2 U. S. Laws, Stoiy's ed., 1285. The petitioner 
might have been discharged, if an application had been made 
immediately after ids enlistment; and no neglect of the parent 
to make an application could be construed into a ratification of 
the enlistment, because it could not furnish a written evidence 
of assent. But the petitioner's evidence shows that he became 
of full age in August, 1840, more than a year before this appli- 
cation was made; and the return alleges that, having enlisted 
for five years, he has continued to perform service as a soldier, 
and has received his pay up to the last of October, 1841; and 
the question arises wheiJier he is now entitled to a dischaxge, 

Dec. 1841.] State u Dimick. 199 

under these circumstances, or whether he has not'himself rati« 
fied the enlistment, so that he is now well held under it. 

It has been argued that the enlistment was entirely Yoid, and 
incapable of ratification, but we do not think it a matter of that 
description. It is a contract for service, for the stipulated pay 
and rations: United States y. Bainbridge, 1 Mason, 82; 11 Mass. 
71.' The statute provides that it shall not bind the infant, or 
those who have the control of him, if made without their assent, 
and subjects the officer to the loss of the bounty and clothing 
the minor may have received. 

There is a class of cases where the law having imposed a 
penalty for the doing of a particular act, the act itself is pro* 
hibited by implication, and illegal; and any contract involving 
the performance of such act is held to be illegal and Yoid: Boby 
V. TTes^, 4 N. H. 285 [17 Am. Dec. 423] ; Pray v. Burbank, 10 Id- 
877. These cases are founded on considerations of public 
morals, the enforcement of municipal regulations, or the pre- 
vention of fraud; and a subsequent ratification of the contract 
would, ordinarily, be as much a violation of the policy which 
induced the imposition of the penalty, as the making of the 
original contract itself. They are not intended as regulations 
for a time, or to furnish protection for a certain i>eriod, merely. 

This case is not of that class. There is no question here, 
whether the penalty upon the officer, if it may be properly so 
termed, prohibits, by implication, the act of enlistment. The 
statute is express, that no person imder the age of twenty-one 
shall be enlisted, or held to serve, etc. But this is for the ben- 
efit of the minor, or the party having the control of him, and 
may be waived by those interested. There is no reason why the 
infant may not ratify the enlistment, after the time arrives when 
he may lawfully enlist. Like other contracts of infants, it is 
voidable: 11 Mass. 71. If the father of the petitioner, subse- 
quent to the enlistment, had given his assent, in writing, the 
maxim, " omnia ratihabitio retro trahiiur" would seem well to ap- 
ply. The provision, subjecting the officer to the loss of the bounty 
and clothing, was merely intended to protect the government 
from loss where the contract was avoided. We are of opinion, 
therefore, that the contract of enlistment was one which the in- 
fant might ratify on his coming of age, so as to bind himself; 
and that this might be done by his acts, in the same manner 
that he might ratify other contracts. And we are further oi 
opinion, that remaining in the service for more than a yeax 

1. CommomoeaUh r. CuMng. 

200 State v. Dimick. [N. H. 

after he beoaine of age, wifbout diasent, reoeiving his pay and 
rations, is a ratification of the contract. It vras not a matter 
that he conld continue so long as he pleased, with power, on 
his part, to disafiSrm it when it no longer suited him. He had 
a reasonable time after he arriyed at full age to express his dis- 
sent and apply for a discharge. His reasons for not doing so 
are not sufficient. It does not apx>ear that he was told it was 
necessary that any one should apply for him — ^that he was in 
any way deceived, or restrained, so that he could not apply— or 
that he manifested any repugnance to the service. He received 
his pay from time to time. Continuing in the service of an 
employer, under any other contract for service, for such a period 
of time after his arrival at full age, taking the stipulated com- 
pensation, in the absence of fraud, duress, or other good reason 
for a neglect to dissent, must be deemed a ratification of the 
contract; and this being a contract, capable of ratification,' falls 
within the general principle. If he had been restrained, or on 
foreign service, or deceit had been practiced upon him, the case 
would be different. 

AuTHOBiTY OF SxATS CouBT OK HABEAS Ck>BFUS. — ^Tho doctrme of the 
principal case upon this matter is not now the law. The snprexne court of 
the United States, necessarily the final arbiter upon questions of this kind, 
has denied the jurisdiction of the state courts in like cases In Ex parte TarhUt 
13 Wall. 397; UnUed Stales ▼. Booth, Ahleman v. Booth, 21 How. 506. 

The facts in the Booth cases, so far as necessary to be detailed, were these: 
fiooth was charged with an offense against the fugitive slave law, and was 
held to answer by the commissioner of the United States before whom he was 
examined. While in the custody of the marshal, pursuant to the oommii- 
ment of the commissioner, a writ of habeas corpus wsa sued out by him, return- 
able before a justice of the supreme coart of Wisconsin. The proceedings 
under the writ were finally removed into the supreme court, and it was there 
decided that the imprisonment was unauthorized, as the fugitive slave law 
was unconstitutional. The marshal was directed to release the prisoner. 
Ableman, the marshal, then sued out a writ of error, by virtue of which the 
record was removed into the supreme court of the United States. Subse- 
quently an indictment was found against Booth in the district court of the 
United States for the same offense, and upon his trial he was convicted and 
condemned in fine and imprisonment. While in the custody of the sheriff^ 
into whose keeping he had been delivered by the marshal, Booth sued out an- 
other writ of habeas corpuSy returnable before the suprenie court of the state, 
in which he complained of his detention as unauthorized because of the uncon- 
stitutionality of the fugitive slave law. Upon the return of the writ, the 
supreme oourt of Wisconsin, constituting itself a tribunal supervisory to the 
district court of the United States, declared the detention unauthorized, be- 
cause of such unconstitutionality: In re Booths 3 Wis. 157. That court in* 
deed went a step further, for it attempted to make its decision final by direct- 
ing its clerk to make no return to the writ of error to the supreme court of 
the United States, sued out in behalf of the United States, and which was 

Dec. 1841.] State v. Dimick. 201 

allowed by the chief Justice of the latter court. To meet the difBcnlty occa- 
gioned by the failure of the clerk to make a retom, the attorney-general of 
the United States obtained leave to file the certified copy of the record of the 
nipreme court of Wisconsin, which he had produced on his application for a 
writ of error, to have the same force and effect as if returned by the clerk 
with the writ of error. This case is the one reported as United Stale* v. 
Booths and was decided at the same time as the preceding one of Ableman v. 
Booth, The judgment of the supreme court of Wisconsin was reversed in 
each case. The court say: '*If the judicial power exercised in this instance 
has been reserved to the states, no offense against the laws of the United 
States can be punished by their own courts, without the permission and ac- 
oording to the judgments of the courts of the state in which the party happens 
to be imprisoned; for if the supreme court of Wisconsin possessed the power 
it has ezerclBed in relation to offenses against the act of congress in question, 
it necessarily follows that they must have the same judicial authority in rela- 
tion to any other law of the United States; and consequently their supervising 
and controlling power would embrace the whole criminal code of the United 
States, and extend to offenses against our revenue laws, or any other law in- 
tended to guard the different departments of the gen«»l government from 
fraud or violence. And it would embrace all crimes from the highest to the 
lowest, including felonies which are punished with death, as well as misde- 
meanors which are punished by imprisonment. And, moreover, if the power 
is possessed by the supreme court of the state of Wisconsin, it must belong 
equally to every other state in the union, when the prisoner is within its ter- 
ritorial limits; and it is very certain that the state courts would not always 
agree in opinion; and it would often happen, that an act which was admitted 
to be an offense, and justly punished in one state, would be regarded as inno- 
cent, and indeed as praiseworthy in another. 

'*It would seem to be hardly necessary to do more than state the result to 
which these decisions of the state courts must inevitably lead. It is of itself 
a sufficient and conclasive answer; for no one will suppose that a government 
which has how lasted nearly seventy years, enforcing its laws by its own tri- 
bunals, and preserving the union of the states, coald have lasted a single year 
or fulfilled the high trusts committed to it, if offenses against its laws could 
not have been punished without the consent of the state in which the culprit 
was found. 

"The judges of the supreme court of Wisconsin do not distinctly state from 
what source they suppose they have derived this judicial power. There 
can be no such thing as judicial authority, unless it is conferred by a gov- 
ernment or sovereignty; and if the judges and courts of Wisconsin possess 
tho jurisdiction they claim, they must derive it either from the United States 
or the state. It certainly has not been conferred on them by the United 
States; and it is equally clear it was not in the power of the state to confer 
it, even if it had attempted to do so; for no state can authorize one of its 
judges or courts to exercise judicial power, by habeas corpus or otherwise, 
within the jurisdiction of another and independent government, and although 
the state of Wisconsin is bovereign within its territorial limits to a certain 
extent, yet that sovereignty is limited and restricted by the constitution of 
the United States. And the powers of the general government, and of the 
state, although both exist and arc exercised within the same territorial limits, 
are yet separate and distinct sovereignties, acting separately and independ* 
ently of each other within their respective spheres. And the sphere of ac- 
tion appropriated to the United States is aa far beyond the reach of the judi- 
eial process issued by a state judge or a state court as if the line of divisicA 

202 State v. Dimick. [N. H. 

was traced by landmarks and monaments visible to the eye. And the state 
of Wisconsin had no more power to authorize these proceedings of its judges 
and conrts, than it would have had if the prisoner had been confined in 
Michigan, or in any other state of the Union for an offense against the laws 
of the state in which he was imprisoned. " The court thought it was imma- 
terial whether the fugitive slave law was unconstitutional or not. 

This case, it will be seen, decides that no person detained by virtue of pro- 
cess issued from a federal court can be released by a state court; but Ex parte 
Tarble, 13 Wall. d97» went further. That case was one in error to the su- 
preme court of Wisconsin, which had discharged a soldier detained by a 
recruiting officer upon habeas corpus^ upon the ground that the soldier was a 
minor, under the age of eighteen years, who had enlisted without the con* 
sent of his father or guardian. The case was then precisely sumlar to the 
principal case. The supreme court of the United States held that the ques- 
tions presented were conclusively settled in the Booth cases. The court say i 
"Such being the distinct and independent character of the two govemmente, 
within their respective spheres of action, it follows that neither can intrude 
with its judicial process into the domain of the other, except so far as such 
intrusion may be necessary on the part of the national government to pre- 
serve its rightful supremacy in cases of conflict of authority. In their laws 
and mode of enforcement neither is responsible to the other. How their re- 
spective laws shall be enacted; how they shall be carried into execution; and 
in what tribunals or by what officers; and how much discretion, or whether 
any at all, shall be vested in their officers, are matters subject to their own 
control, and in the regulation of which neither can interfere with the other. 

*'Now among the powers assigned to the national government, is the power 
' to raise and support armies* and the power ' to provide for the government 
of the land and naval forces.' The execution of these powers falls within the 
line of its duties; and its control over tho subject is plenary and exclusive. 
It can determine, without question from any state of authority, how the 
armies shall be raised, whether by voluntary enlistment or forced draft, the 
age at which the soldier shall be received, and the period for which the soldier 
shall be received, and the period for which he shall be taken, the compensa- 
tion he shall be allowed, and the service to which he shall he assigned; and 
it can provide the rules for the government and regrulation of the forces after 
they are raised, define what shall constitute military offenses, and prescribe 
their punishment. No interference with the execution of this power of the 
national government in the formation, organization, or government of its 
armies by any state officials could be permitted without greatly impairing the 
efficiency, if it did not utterly destroy this branch of the public service.*' 
The conclusion was reached that if from the petition for the writ it appeared 
that the detention was justified under the authority or claim and color of the 
authority of the United States, the writ should be denied; and that if this 
did not appear, then the duty of the officer in whose custody the prisoner was, 
was to make a return ** sufficient in its detail of facts, to show distinctly that 
the imprisonment is under the authority or claim and color of the authority 
of the United States, and to exclude the suspicion of imposition or oppression 
on his part. And the process or orders under which the prisoner is held, 
should be produced with the return and submitted to inspection, in order that 
the court or judge issuing the writ may see that the prisoner is held by the 
officer in good faith, under the authority or claim and color of the authority 
of the United States, and not under the mere pretense of having such 
authority.** Upon such a return it would become the duty of the state 
court to desist from any further proceedings. It would further be the duty 

Dec. 1841.] Despatch Line v. Bellamy K Co. 203 

of the officer in whose custody the prisoner was, if any such f ui-ther proceed • 
ings were attempted hy the state courts to resist them, or any interference 
with his prisoner, and to call to his assistance any force that might be neoes- 
lary for that purpose: Ahleman v. Booth, 21 How. 624. Resort, therefore, for 
relief, whenoTer the imprisonment complained of is under color of authority 
derived from the United States, must be had to the federal courts. 

The condition in which the decisions of the state courts had left this ques- 
tion prior to the decision of the Booth cases, is summed up in Hurd on haheaa 
corpus, page 166, as follows: '* It may be considered settled, that state courts 
may grant the writ in all cases of illegal confinement under the authority of 
the United States. And the weight of authority clearly is that they may 
decide as to the legality of the imprisonment; and discharge the prisoner if 
his detention be illegal, though the determination may involve questions of 
the coostitationality of acts of congress, or of the jurisdiction of a court of 
the United States." See alao Ex parte LocHngton, Brightley, 269; Common' 
wealth V. Fox, 7 Pa. St. 336; State v. BreaHey, 2 South. 555; CommontoeaUh 
▼. ffarriaon, 11 Mass. 63; CommionweaUh ▼. Oushing, Id. 67; Commonwealth 
v. Doume; 24 Pick. 227; Simt^ com, 7 Gush. 285. Of course after the de- 
cisions in the Booth cases, the state courts recognized that a writ of liabeas 
earpua could not be used to release a prisoner held by virtue of process issued 
from a court of the United States: Ex parte Hill, 5 Nev. \o4; Ex parte Le 
Bur, 49 Gal. 160; Ex parte Ilolman, 28 Iowa, 89. But it was not everywhere 
oonsidered, that a person held under military authority could not be released 
by means of this process: See People ▼. Oaul^ 44 Barb. 98; In the Matter 
of Martin, 45 Id. 142; Ex parte Anderson, 16 Iowa, 595; McConologue'a caeef 
107 Mass. 160; Disinger'a case, 12 Ohio St. 256. Other of the state courts, 
however, denied themselves possessed even of such a jurisdiction: Ex parts 
Hopson, 40 Barb. 34; Ex parU O'Connor, 48 Id. 59; StaU v. Zvlick, 5 Dutch. 
409; Ex parte Spangler, 11 Mich. 298. The law must now, of course, be 
considered definitivdy settled in accordance with this latter view. 

Despatch Line of Faoeets v. Bellamy Manu- 


[12 New Haxpshxbx, 205.] 

Acts of a Direotob of a Corporation are Valid so far as the interests of 
third persons are concerned, though he is not possessed of the qualifica* 
tions required by the by-laws of the corporation, if his election appear 
of record and he has been permitted by the corporation to act as 

BIajoritt of thb Directors of a Corporation may exercise the powers 
oonf erred upon their body by the by-laws of the oorporation; but this 
they can only do after there has been a joint consultation at which all 
the directors were present, or after there has been a regular meeting at 
which all might have been present, and at which a majority did meet 
and act. 

tion is presumed to have been properly executed, but the presumptioir 
may be rebutted. 

204 Despatch Line v. Bellamy M. Ck). [N. H. 


OouPANT does not extend to the right to pledge or moitgage its ma- 
chinery and bnildings. 
Note Executed bt ax Aosnt of a Corpoilation in his own name and 
signed "A. B., Ag't etc.," is the note of the corporation, if it was in- 
tended as such, and the aathority of the agent extended to the execa- 
tion of notes. 


FXBBED BT VoTE of the boaid through whom its bosiness is transacted. 

Batifioatioh of as Acrr la Equiyalemt to a precedent aathority. 

BATlFiGATioir OF AJf AcT MUST BE IN THE Pa&tioulab Mode or form neces* 
sary to confer an aathority to perform it, in the first instance. 

The Bulb with Reoaud to Fotubes that Affusb between Heie and 
ExEOUTOB also applies between vendee and vendor, and mortgigee and 

Fqetubes, Machineb and other ABTI0LB8 ESSENTIAL to the oconpation of a 
building or to the business carried on in it, and iriiioh ace affixed or 
fastened to the freehold and used with it| partake of its ohanuster and 
pass with a conveyance of the land. 

Fixture, When Construcuvslt Annexed. — A steam-engine which is used 
in a building in process of manufacture, and which can not be removed 
therefrom without tearing down a portion of the building to afford it 
egress, is constructively annexed thereto so as to become a fixture, though 
it is not fastened in any way. 

Loose Movable Machinert not Affixed to the Building in which it is 
situate and which may be removed without any damage to the building, 
is not a fixture though it is used in the prosecution of a business to which 
the building is devoted. 

A MORTOAOB OF PERSONAL Propertt need not be by sealed instrument. 

An Instrument under Seal Executed bt an Aoent which might operate 
as a writing without seal, will be so treated if necessary to give it validity 
because of a lack of authority upon the part of the agent to bind his 
principal by deed. 

AocEPTiNO Benefits Arising from a Contract of an Unauthorized 
Agent, ratifies the contract if it is one -capable of ratification by parol. 
Thus receiving and retaining the consideration of an unauthorized mort- 
gage of personal estate, ratifies it. 

Taking of Goods bt a Wrong-doer from a Trustee on Attachment Pro- 
cess, does not discharge the latter, but furnishes a reason for deUying 
proceedings, until damages for the taking can be recovered. 

Trespasser in Possession of Another's Goods can not be charged as trustee 
of the owner. 

Foreign attachment, in which the Savings Bank of Strafford 
county is sought to be charged as trustee. The case was sub- 
mitted to this court, upon the facts proved on the trial. The 
facts not appearing in the opinion were as follows: On the thir- 
teenth of January, 1837, Robert H. Palmer, general agent of 
the Bellamy manufacturing company, executed and delivered to 
the savings bank the following note: ''For value received I 

Dec 1841.] Despatch Line u Bellamy M. Co. 205 

promise to pay the savings bank for the county of Stzafford or 
order, three thousand dollars in six months. Robert H. Palmer, 
agent Bellamy manufacturing company." At the same time and 
to secure payment of the note, he executed in the name of the 
company a mortgage of the premises on which were situated 
their buildings, and of all the fixtures, machinery, tools, and 
materials to be found on the premises. This mortgage pur- 
ported to be authorized by a vote of the board of directors of 
the company, of the same date. But this Tote was the act of 
only two of the directors, and was at a meeting of which no 
preyious>notice had been given the third director; moreover, 
Emery, one of the two directors who did act, was not a pro- 
prietor in the company. In November, 1837, which was after 
it had been served with process in this action, the savings bank 
took possession for the first time of the mortgaged properly. 
The material then on the premises which might be classed as 
either fixtures, machinery, or tools consisted in part as follows: 
One steam-engine, situate in the building, not attached thereto 
in any way, but which could not be removed without tearing 
down a part of the building to a£ford it -a passage; certain steam- 
boilers set in brick, which furnished steam for the engine last 
mentioned, whose removal must necessitate the tearing down of 
the brickwork; two copper boilers or kettles in the same situa- 
tion; one cullender; one padding machine, and one calico print- 
ing machine, not attached to the building, and which could be 
removed without any damage; one pressing machine, let into 
the floor and attached to the ceiling by braces, the removal 
whereof would necessitate the taking up of the flooring and the 
drawing of the nails by which the braces were fastened to the 
ceiling. Some hollow copper rollers, adapted to printing and 
intended for use on iron mandrils, and which might be removed 
without injury, and used with any other mandrils of the same 
size; one steam-boiler not set, lying without the buildings of the 
company; a lot of jointed cast-iron pipe connecting the engine 
with the boilers supplying it with steam, and which passed 
thrbugh a partition in the building, but which might be un- 
screwed and removed; buckets, pails, etc. The steam-boiler 
not set, and the copper rollers mentioned above, were afterwards 
taken from the possession of the agent of the savings bank on 
the premises, upon an attachment thereof, as the property of the 
Bellamy manufacturing company, and were ultimately sold on 
execution. The bank thereupon began an action against the 
sheriff for the taking, which action is now dependent. 

206 Despatch Line v, Bellamy M. Co. [N. H. 

OkrisHe, for the plaintifffl. 
James Belly contra. ^ 

Pabkbb, 0. J. The first question we have considered^ is, 
whether Emery was a director, so that his act, as such, could 
haTe any validity. He appears to have been elected an associate 
of the company, and at the same meeting when the by-laws were 
adopted, to have been chosen a director. It was suggested that 
his election was under the first article of the by-laws, which 
made a temporaiy provision until the annual meeting in 1837, 
and that this article did not require that the person elected 
should be a proprietor; but this position is questionable, and 
the consideration of it may be waived. The second article of 
the by-laws, that any person chosen a director should cease to 
be one when he ceased to be a proprietor, if construed accord- 
ing to its precise language would not prohibit the election of a 
person who was not a proprietor; and it might possibly have 
been intended not to debar the corporation from electing one 
who owned no stock, but only to terminate the official charac- 
ter of any one who, having been elected and trusted because he 
was a proprietor, no longer had the interest in the success of the 
company which formed the inducement to elect him. But this 
was not probably the construction intended. There is nothing 
in the proceedings of the company to show that we ought to 
give this clause such a strict interpretation, and it may be well 
construed to render any one who was not a proprietor ineligible. 
Such seems to be the fair implication. The fact that Mr. Emeiy 
was elected to the office does not militate against this construo- 
tion; for although he was never an owner, his election was vexy 
probably made under an anticipation that he would qualify him* 
self for the office by a purchase of stock. 

But this construction of the by-law does not alter the case. 
He was elected a director, and his election made matter of rec- 
ord; and he acted as such when the vote, out of which the 
mortgage to the trustees arose, was entered in the book provided 
for that purpose. If this election had been by a municipal cor- 
poration, coming into office under color of an election, he would 
have been an officer de factOy and his acts valid so far as third 
persons had an interest in them. And the regularity of the 
election could not in such case be inquired into, except in soma 
proceeding to which he was a pariy : Tucker v. Aiken, 7 N. H. 
131, 136, and cases cited. As a director of a private corporation, 
although called, in common parlance, an officer of the corpoiar 

Dec. 1841.] Despatch Line v. Bellamy M. Co. 207 

tion, he is, perhaps, not techmcallj to be considered an officer d& 
facto. He is one of the agents elected by a vote of the corporation, 
for the management of its affairs, or some of them. But a simi- 
lar rule must prevail in relation to the effect of his acts, so fax 
as the corporation have held him out as an agent, and third 
persons have confided in his acts, done within the scope of the 
authority he appeared to possess. By electing him a director, 
and permitting him to act as such, the corporation held him out 
to the world as a director — as one of their agents, having all the 
powers of an agent of that description, and to be trusted as 
such. And it was only necessary, under such circumstances, for 
those who dealt with the corporation through him, to inquire 
what powers directors had, and what acts the corporation had 
authorized them to do. They were not required to inves- 
tigate the qualifications which the corporation had pre- 
scribed to itself, as the condition upon which any one should 
be elected, or permitted to act. The corporation, when Emery 
was elected, had the means of knowledge whether he was quali- 
fied according to their by-laws. On the conjecture that he was 
expected to take stock, and that the election was made in antici- 
tion of that, he might have been required forthwith to become a * 
stockholder, before his acceptance, or the corporation might 
have proceeded to another election. Instead of this, they left 
his election as a director upon the record, as if he was duly eligi- 
ble, and thus held him out, and permitted him to. hold himself 
out, as a director; and he so acted. It is a settled rule, that a 
person is bound by the acts of another, whom he has held out 
to the world as his agent for that purpose: Davis v. Lane^ 10 
N. H. 156; Beard v. Kirk, 11 Id. 397. 

Here, however, another question arises. Ira Haselton was a 
director duly elected. Without considering whether the presi- 
dent was ex officio a director, as well as presiding officer of 
the board — and without inquiring into the particular effect of 
the provision in the second article of the by-laws, that the di- 
rectors should jointly manage the affairs of the corporation — ^it 
is sufficient to say that there were three directors, and only two 
of them were present, and authorized this mortgage to the 

The vote, authorizing the mortgage, purports to have been 
passed at a meeting of the directors; and it might, nothing aj)- 
pearing to the contrary, well be presumed that it was passed by 
all, or had the concurrence of the requisite number to render it 
valid. And it might not be sufficient to rebut this presumption, 

208 Despatch Line v. Bellamy M. Ca [N. H. 

to show that the assent of the several directors was procured 
without any meeting, or constdtation, each giving his assent at 
a different time and place; although this is not perfectly clear. 
There are safeguards in consultation, and considerations of 
policy, as well as of construction, which, in the absence of spe- 
cial authority authorizing a different course, furnish an argu- 
ment in favor of the position, that an authority to two or more 
officers or agents of a corporation, in their discretion, to do cer- 
tain acts, is not well executed by the assent of all, if given 
separately to the acts. On the other hand, if all concur in 
assenting to or directing the act, it may be said, with much 
force, that all is done which the constituent required, where 
there is no express restriction rendering the presence of the 
whole number, together, necessary, in order to the validity of 
any act done. But it is not important to discuss this further, 
at this time. However this may be, all presumption that the 
vote authorizing this mortgage had the concurrence of all the 
directors, is expressly negatived by the evidence in the case; 
from which it appears that Iia Haselton never joined in it, or 
in any way assented to it, and that he was not even consulted 
on the subject before the mortgage was made. Taking the 
most favorable view of the matter, the vote was the act of two 
out of three directors, without any consultation with the third, 
or any concurrence on his part; and is this sufficient to bind 
the corporation and render the mortgage valid ? 

It has been held that where the directors of a corporation 
have power to bind it by their contracts, that power may be 
exercised by a majority: Gram v. The Bangor House Proprie" 
tary, 3 Fairf . 854. And this is cited as an authority in point, 
in this case. But it by no means settles the question now pre- 
sented. It did not apx)ear in that case, that all the directors 
were not present; or if they were not, that they had not been 
notified, and had an opportunity to be present; which, appear- 
ing here, constitutes a marked difference between the two cases. 

Where is the authority to be found, in this case, for two of 
the directors to do this act, without the knowledge of the 
other? The sixth article of the by-laws provides, that ''the 
directors shall have power" (after other matters specified), " to 
exercise the general superintendence and control over the affiiirs 
of the company, and to appoint an agent or agents, and such 
other officers for carrying on the business of the company," etc., 
"as they may determine." The second article gave them, 
jointly, similar powers. This is a veiy general authority, suffi- 

Dec. 1841.] Despatch Line u Bellamy M. Co. 209 

cient to authorize them to borrow money and execute a mort- 
gage. But this power is given to the direotors — ^not in terms 
eyen, to a majority of them. There was here no vote of the 
corporation giving them any special power to execute the mort- 
gage, or to authorize it to be done. The mode in which the di- 
rectors might act dei>ends, therefore, upon the principles ap- 
plicable to by-laws which confer powers upon the directors 
generally. The general principle in relation to agencies is, that 
where an authority is given to two or more persons to do a 
private act, the act is valid, to bind the principal, only when all 
of them concur in doing it: Story on Agency, 41; Andover r. 
Orqfion, 7 N. H. 804, and authorities cited. Where the author- 
ity is to do an act of a public nature, if all meet for the purpose 
of executing it, a majority may decide: OrindJey v. Barker , 1 
Bos. & Pul. 229; Co. Litt. 181 b; Case of the BaUimore TwmpUoe^ 
5 Binn. 481; Tlie King v. WhUaker, 9 Bam. k Cress. 648. 

The duties of officers, so called, of corporations, where those 
duties are prescribed by the corporation itself, are in the nature 
of an agency, but such officers or agents, appointed not to do 
single acts, but for regular terms, and having by the by-laws a 
general or very extensive authority in the mani^ement of the 
concerns of the corporation, it is believed have not in practioe 
been supposed to come within either of the above rules. And 
it might not only be inconsistent with the general usage upon 
the subject, but operate to impose unnecessary restrictions upon 
such bodies, to apply a rule requiring in all cases the assent, or 
even the presence, of all the directors, or agents of any other 
class, deriving from the by-laws regular powers. Had the au* 
thority of the directors, to manage and exercise a general su- 
perintendence and control over the affiurs of the company, been 
conferred by the charter itself, it would have been in the nature 
of an original corporate power in a defoxite number, and a ma- 
jority of the whole number being duly assembled, at a regular 
meeting, might act by the major vote of those present: The 
King v. MUler, 6 T. R. 278; The King v. BeUHnger, 4 Id. 
823; Bex v. Varlo, Cowp. 250; 1 Bos. & Pul. 236;' Ex parte 
WUlcockSf 7 Cow. 409, and note, 410. Does it make any dLSer- 
ence, in this respect, that the power is found in the by-laws, in- 
stead of being conferred directly by the charter? The principle 
has been applied in other cases than those of public corpora- 
tions: BlackeU v. Blimrd, 9 Barn. & Cress. 851. 

The directors of corporations generally, whose usages have 

1. Orindle^ ▼. Barker, 
Am. Dbo. Vol. XXXVII— U 

210 Despatch Line u Bellamy M. Ckx [N. EL 

been enich as to deserve notice (although no evidence of usage 
is found in this case), are supposed to have had stated or noti- 
fied meetings, at which a majority imdertook to transact the 
business confided to the board; and to hold that the act of the 
majority in such cases was invalid, might shake titles, or cause 
other inconveniences to a serious extent. And we are of opin- 
ion, that where the by-laws of a private corporation confer upon 
the directors power to act in behalf of the corporation, without 
special limitation as to the manner, a majority may act, within 
the scope of the authority given to the board, and bind the cor- 
poration, either where there is a consultation of all together, 
and a concurrence of a majority; or where there is a regular 
meeting, at which all might be present, and a majority actually 
meet, and act by a major vote: Savings Bank v. Davis, 8 Conn. 
191. And when the act purports to be the act of the board, it 
may be presumed that it was the act of a majority, imtil the 
contrary is shown. We are not aware of any well-settled prin- 
ciple, or usage, which will carry us further than this. The cases 
which hold that a majority of a definite body being assembled, 
a major part of those assembled may act, presuppose a regular 
meeting, or one on notice. We consider the decision in Maine 
in concurrence vdth these principles, as far as it extends on the 
&cts in that case. 

But this presumption just adverted to, may be rebutted, and 
is so in this case. Here was no assent of all the directors at 
any meeting, or even obtained separately, if that might be held 
sufficient. Nor were there a meeting and consultation of the 
whole board, and the vote of a majority, authorizing the act to 
be done. Nor was there a meeting regularly notified, or held at 
some regular period, at which, all not appearing, a majority as- 
sembled, and acted by a major vote. There is nothing to show 
that Ira Haselton had any opportunity to act; and the attempt, 
therefore, to show a pre-existing authority to give this mortgage, 
by means of the vote of the directors, must fail, if the corpora- 
tion were contesting the matter on the evidence before us. 

In this view, it is not necessary to consider another question 
which has suggested itself, and that is, whether the directors, in 
case all had assembled, could have conferred authority upon one 
of their body, or any other person, as agent, to make the mori-^ 
gage; or whether it must, in order to its validity, through the 
acts of the directors, as such, have been executed by at least a 
majority of the board of directors. The general principle is, 
that one who has a bare power to do an act, must execute it him* 

Dec 1841.] Despatch Line v. Bellamy M. Ca 211 

self, and can not delegate his authority to another — ^that the au- 
thority is ezclusiYely personal, unless from the express langaage 
used, or from the fair presumptions growing out of the particu- 
lar transaction, or of the usage of trade, a broader power was 
intended to be conferred on the agent: Stoiy on Agency, 14, 16; 
7 N. H. 804.^ If this had been material, it might have deserved 
consideration whether the power given to the directors, to ap- 
point agents for carrying on the business of the company, were 
not sufficient of itself to authorize the delegation in this case, 
or whether that were to be confined to the ordinary business of 
the corporation: 8 Oonn. 201, 207;' 12 Mass. 522.' 

The evidence failing to establish the validity of the mortgage 
to the trustees, through the vote of the directors appended to it, 
other questions present themselves on the case before us. 

It has been contended that Palmer, as general agent of the 
company, had power to borrow money, and to pledge the 
machinery, to secure the loan, without vote. This was not a 
pledge. No possession appears to have been given, or intended 
to have been given, at the time. But if it had been, there is 
nothing in the by-laws, or in the nature of the agency, nor any- 
thing in the authorities cited, which can sustain the right to 
pledge the machinery, even if that of borrowing money may be 
inferred. Stow v. Wyse, 7 Conn. 219 [18 Am. Dec. 99], contains 
a strong implication to the contrary. The by-laws provide that 
the directors may appoint an agent, or agents, for carrying on 
the business of the company. But it is not carrying on the 
business of the company to pledge or mortgage the machinery 
used by the company, and thereby suspend its operations, or 
place them at the will and pleasure of a mortgagee: Ang. Sc 
Ames on Corp. 172, and cases cited; Life and Fire Ina. Co. v. 
The Mechanics^ Fire Ins. Co,^ 7 Wend. 83. Circumstances might 
be such, possibly, as to show an authority to pledge the manu- 
factured goods, which he was authorized to dispose of, but that 
is not this case. 

The note to the savings bank is carelessly drawn; but there is 
sufficient on its face to show that it was intended to be the note 
of the Bellamy manufacturing company, and it might well sub- 
sist as such, if Palmer had authority to execute it: See 2 Stark, 
on Ev. 477, n. 1; WiUcs v. Bach, 2 East, 142; M(mtg(mery v. 
Doricm, 7 N. H. 484; PenU v. StanUm, 10 Wend. 271 [26 Am. 

Dec. 568]; Savage v. Rix, 9 N. H. 263; Eoans v. Wells, 2 Wend. 

■ ■ ■ ■ ■ 

1. Jmdamer ▼. (7it^(0f». 9. iffovinpt Bamk «f JV. S, r, Dai9i§, 

9. Sto^ghUm t. Baker, 4 HaM. 623. 

212 Despatch LmE v. Bellamy M. Co. [N. R 

825.^ There is no form prescribed in which such an instroment 
shall be made; and it is immaterial whether the name of the 
principal or agent be placed first, if the authority exist, and the 
intention be apparent. There can be no good reason why 
Palmer should have added, " Ag't Bellamy Man. Co." to the 
signature, if he intended to make a personal contract. It may 
be held to be the note of Palmer, if there were no author- 
ity and no ratification of the act. But a ratification will ex- 
onerate him from liability: Story on Agency, 246. 

The mortgage which he executed at tiie same time, and which 
was part of the same transaction, and describes the note as the 
note of the company, is formal to conyey as well real as per- 
sonal estate. It purports to contain a conyeyance, and coye- 
nants of the company, and to be executed by the company, and 
that the corporate seal is affixed. The signature and acknowl- 
edgment are that of the company, made by Palmer as agent. 
BeiQg in form, the deed of the company, executed by one who 
who assumed to act as their agent, it is susceptible of ratifica- 
tion; and the next question is, whether it has eyer been ratified, 
and if so, to what extent. This includes the consideration of 
what is necessary to a ratification. * 

There has been some diyersity of opinion upon the subject 
whether a corporation, or the directors of a corporation, can 
constitute an agent for the conyeyance of real estate except by a 
power under the corporate seal: 8 Conn. 192.' In the <»se of an 
indiyidual, wheneyer any act of agency is required to be done, 
in the name of the principal, under seal, the authority to do 
the act must be conferred by an instrument under seal: MorU' 
gomery y. Darion, 6 N. H. 250; Stoiy on Agency, 5(X 

There seems to be no doubt that, according to the rule of 
law as held in England, a corporation can not conyey, nor 
mortgage, but imder the corporate seal: 4 Kent's Com. 443 and 
authorities cited; 8 Conn. 191. But a different rule has preyailed 
to some extent in this state, so far at least as regards con- 
veyances by towns, and the proprietors of common and undi- 
\dded lands: Co/ran y. Cochran, 5 N. H. 458; Gopp y. NeaXy 7 
Id. 275; AUcvMon y. Bemis, 11 Id. 44; Cobum y. ERenwood, 4 
Id. 102. In this latter case, Chief Justice Bichardson said: 
'' It is not now to be doubted that the proprietors of common 
and undivided lands are corporations, or that they can by vote 
authorize agents to make conveyances in their name, or that 

1. 22 W«nd. 835. 3. Savingt Bvnk nf N. A ▼. DtnU, 

Dec. 1841.] Despatch Line u Bellamy M. Co. 213 

deeds properly executed by such agents may be yalid to pass 
the estate." 

And the weight of authority in this country seems to be in 
favor of the position, that private corporations, or boards of 
directors through which their business is transacted, may ap- 
point an agent for the conveyance of real estate, by vote, without 
a power or instrument under the corporate seal : Ang. & Ames on 
Corp. 114, 154; 8 Conn. 192, 202, and authorities cited. If 
the formality of an instrument under seal, conferring the power 
upon the agent who is to make the conveyance, should be re- 
quired, it would add nothing to the authenticity of the convey- 
ance, if the individual who afiSxes the seal to the power derive 
his authority from a mere vote of the corporation. 

But there is here no vote of ratification, either by the corpo- 
ration or by the directors; and we are not aware of any author- 
i^ which will justify us in going farther, and holding that a 
deed of real estate may be ratified by a corporation without 
vote or writing. The general principle is, that if the act of the 
agent purport to be under seal, and in the name of the prin- 
cipal, so as to be his deed, the ratification must be under seal: 
Story on Ag. 246. A parol acknowledgment by a x^rincipal, that 
an agent had authority under seal to enter into a sealed con- 
tract obligatory upon his principal, is competent evidence of such 
authority; but if, at the time of entering into it, the agent had in 
fact no authority under seal, the subsequent jpsixol acknowledg- 
ment and ratification will not bind the principal: Blood v. Oood* 
rich, 9 Wend. 68 [24 Am. Dec. 121]; S. C, 12 Id. 525 [27 Am. 
Dec. 152]; SteiglUz v. Eggivton, Holt's N. P. 141; Wells v. Ihans, 
20 Wend. 258. And in a case where a sealed instrument was not 
necessary, but an agent was authorized by x)arol to enter into a 
contract for the purchase of timber, and he entered into a sealed 
contract, a counterpart of which in like form was delivered to 
the principal, and acknowledged by him as the evidence of the 
contract, and he received the timber and made some payments, 
it was held that an action of covenant could not be maintained 
on the contract: Hanford v. McNair, 9 Wend. 54. 

A ratification of an act, done by one assuming to be an agent, 
relates back, and is equivalent to a prior authority: Stoiy on 
Ag. 235, 289. When, therefore, the adoption of any partic- 
ular form or mode is necessary to confer the authority in the 
first instance, there can be no valid ratification except in the 
same manner. If a sealed power were not necessary to this as 
a conveyance of the real estate, but a written vote would have 

214 Despatch Line v. Bellamy M. Co. [N. H. 

been sufficient, because a corporation may constitute an attor- 
ney by Tote for such purpose, then such vote at least must be 
held necessary to a ratification. We are of opinion, therefore, 
that this mortgage is inoperative as to the real estate. And this 
must apply to the fixtures. 

The strict rule as to fixtures, that prevails between heir and 
executor, applies as between vendee and vendor: 2 Kent's Com'. 
280; 3£iUer v. Plumb, 6 Oow. 665 [16 Am. Deo. 456]; 20 Johns. 
80;' 1 Har. & J. 291.' The same rule applies between mort- 
gagee and mortgagor: Union Bank v. Emerson, 15 Mass. 
159; LongsUiff v. Meagoe, 2 Adolph. & El. 167. Machines and 
other articles essential to the occupation of a building, or to the 
business carried on in it, and which are affixed or fastened to 
the freehold, and used with it, partake of the characfcer of real 
estate, and become part of it, and pass by a conveyance of the 
land: KiUredge v. Woods, 3 N. H. 604 [14 Am. Dec. 893], and 
cases cited; Amos & Ferard on Fixtures, ch. 4, 132, 151; Poto- 
ell V. The Monson & Brimfield Mfg. Go,, 3 Mason, 469, 464; 
Chddard v. Chace, 7 Mass. 432; Oaffield v. Edpgood, 17 Pick. 
192 [28 Am. Dec. S90]; Noble v. Bosworih, 19 Id. 3M; Kirtoan 
V. Latour, 1 Har. & J. 291 [2 Am. Dec. 519]. Such articles pass 
by the conveyance, although disannexed for a temporary pur- 
pose: Richard Liford'scase, 11 Go. 50, cites Wistow's case; Shep. 
Touch. 90. And some things are held to be constructively an- 
nexed: 11 Co. 50; Amos k Ferard on Fix. 183; 20 Wend. 639.' 
Exceptions have been made, or the property has not been 
deemed fixtures, in the case of a stone for grinding bark: Heer* 
mance v. Vemoy, 6 Johns. 5; machines for spinning and card- 
ing, attached by " cleats," etc. : Cresson v. SUnU, 17 Johns. 116 
[8 Am. Dec. 373]; Svrifl v. Thompson, 9 Conn. 63 [21 Am. Deo. 
718]; and carding machines, secured by nails or spikes driven 
into the floor: Oale v. Wood, 14 Mass. 354.* The report of this 
last case, however, is somewhat contradictory upon the point, 
and the case itself was doubted by Chief Justice Richardson, 3 
N. H. 506. See also 20 Wend. 641; 3 Dane's Abr. 156. Ar- 
ticles of furniture, it is said, do not come within the rule, al- 
though temporarily attached: 20 Wend. 646, cites Gibbon on 
Fixtures, 20, 21. And see Amos & Ferard, 161, 164, 183-186. 

Some of the excepted cases seem to have made the question 
depend upon the character of the fastening, whether slight oi 
otherwise. But this is a criterion of a questionable character, 

1. AMnei ▼. IVwipw. t. ITollMr ▼. Skamtm, 

9. Kirwmi t. tuUmr, 4. OaU t. Ward : 8. O., T Am. Dm. 198. 

Dec 1841.] Despatch Line v. Bellamy M. Co. 215 

not sostained by the weight of the decisions. More depends 
upon the nature of the article, and of its use as connected with 
the use of the freehold. Perhaps, however, the case, Farrar t. 
Stachpole^ 6 Qxeenl. 154 [19 Am. Dec. 201], where a chain used 
with a sawmill was held to be a constituent part of the mill, 
carried the doctrine of annexation to the extreme point; to say 
nothing of the mill bars, which it seems were admitted to haye 
passed by the conveyance of the sawmill. 

It is not practicable to lay down a rule in a few words which 
shall be applicable to all cases. The particular circumstances 
of each case are entitled to special consideration. Different 
rules prevail in the case of landlord and tenant. Upon the gen- 
eral principles above stated, the kettles set in brickwork were 
fixtures. So of the steam-engine. Although not attached to 
any fastening, it could not be removed without taking down 
part of the building. It may with projnieiy be said to be con- 
structively affixed. So as to the hand-press let into the floor, 
and the steam-pipe, probably, although, as to these articles, 
perhaps farther evidence respecting the mode of annexation, 
and use, might be desirable. Bespecting the cullender there ia 
not sufficient evidence to determine its class. 

Loose, movable machinery, not attached nor affixed, even 
where it is used in prosecuting any business to which the free- 
hold property is adapted, is not to be regarded as part of the 
real estate, or as an appurtenance to it: WciUcer v. Sherman^ 20 
Wend. 636, 655; 6 Cow. 665;* 1 Har. & J. 291;* Horn v. Baker, 
9 East, 215. The printing machine, printing shells, and the 
boiler which lay without the building, and tools, come within 
this description. A further question then arises, whether the 
deed executed by Palmer might avail as a mortgage of the per- 
sonal estate included in it, and whether there be sufficient evi« 
dence of its ratification as such. 

As to the personal estate, no instrument under seal was 
necessary. A bill of sale, or a sale without writing, accom- 
panied by delivery, might have passed the absolute property, if 
the agent making it had authority. In order to a record of a 
mortgage of personal property, it must of course be in writing, 
but the statute has not made a seal essential to the validity of 
such a mortgage. If, then, this instrument can not operate to 
'Oonv^ the real estate, nor as a sealed instrument conveying the 
personal, it may not follow that it is not available as an unsealed 

«• MWm T. PiiiM»; S.O., 16 Am. DecTse! a. firwan t. Xototw ; S. 0..9 AnuDeo. 5U 

216 Despatch Line u Bellamt M. C!o. [N. tt 

insinunent, if it contain anjthing to authenticate which a seal 
la not necessary. 

In Hanford t. McNair^ before cited, in which it was held that 
coTenant would not lie on the sealed contract to pay for the 
timber, Mr. Justice Sutherland said: '' The subsequent act of 
the defendant, under this contract, recognizing and carrying it 
into effect, may be sufficient to make it binding on him as a 
parol contract, but can not make it his deed.'' Upon this, how- 
ever,, he gave no definite opinion. The case of Banorgee y. Hcvey, 
6 Mass. 14 [4 Am. Dec. 417], to which he referred as in some re- 
spects essentially different from that case, is also different from 
this. There was there perhaps a well-founded objection against 
the declaration. But another question, and the one principally 
discussed, was, whether a bond which Smith was not authorized 
to make for the defendants, but by which he attempted to bind 
himself, and the defendants, as principals, with him, precluded 
the plaintiff from recovering for the money lent, in an action of 
assumpsit. Without extending this opinion by a discussion of 
the matters there decided, it is sufficient to say that the decision 
was based in no small degree upon the ground that the bond was 
good against Smith, who was one of the principals, and 
attempted to bind the rest as their agent; and that it therefore 
operated as an extinguishment of the simple contract debt 
which otherwise might have existed against the principals. Mr. 
Justice Sewall dissented. The case seems to have been very 
much consideied, but the inquiiy presents itself notwithstand- 
ing, if Smith, as the agent, undertook to bind the other princi- 
pals, in a manner in which he was not authorized to act, although 
he had effectually bound himself so that the plaintiff might 
have pursued his remedy against him upon the bond, on what 
principle was the plaintiff, by the receipt of such a bond (by 
which he supposed Smith had well bound all the defendants), 
precluded from resorting to an implied assumpsit, of all the sup- 
posed principals, to pay for the money which Smith borrowed 
in their behalf, and which it is assumed, in part of the case at 
least, went to their benefit? The plaintiff had not accepted, 
nor intended to accept, such a bond as that in question turned 
out to be (that is, the bond of Smith alone), and in this respect 
there was a material difference between that case and some of 
tiie cases cited in support of the decision. If the bond which 
the plaintiff received had been what it purported to be, and 
bound the defendants as well as Smith, then it might well hava 

Dec 1841.] Despatch Line v, Bellamy M. Co. 217 

been held that the acceptance of the higher Becnrily had barred 
the remedy on indebitatus assumpsit. 

There seems to be no good reason why this instrument, if it 
may not operate as a conyeyance under seal, shonld not operate 
as a mere writing without seal, if the evidence be sufficient to 
establish it as the transfer of the company, provided a seal had 
not been put to it. If an agent, authorized to make a promissoiy 
note, should make one in the proper form, signing the name of 
his principal, •and put a seal to it — ^although this could not be 
declared on as the covenant of the principal, why should it not be 
valid as his note ? If it were in such phraseology that the agent 
himself might be bound as on his personal covenant, at the elec- 
tion of the holder, why should the holder be compelled to resort 
to and rely upon that covenant, when neither party at the time 
contemplated the personal' liability of the agent? Why should 
not the creditor be permitted to reject the s^, which the agent 
was not authorized to put there, and treat it as it ought to have 
been, and would then be, a legal parol promise of the principal? 
Suppose this instrument had contained in addition to the mort- 
gage, a receipt by Palmer for a sum of money, which he aa 
agent was clearly entitled to receive, would it not be as good 
evidence to show the payment of the money, as a simple receipt 
by him without any seal? It does contain an acknowledgment 
of the receipt of the consideration. Whether that be not so 
connected with the conveyance, that if it can not operate as a 
deed, it can not properly be evidence, standing alone, to charge 
them with the receipt of the money, is a question of a character 
somewhat different, and which need not extend the present 

We see no good reason why, if there be sufficient evidence of 
ratification, this instrument should not operate as a mortgage of 
the chattels. As between the parties, no formal appointment is 
necessary for the execution of an instrument of that character. 
The agent may be appointed by parol, and his authority shown 
by evidence of that character. And a mortgage or pledge of the 
personal property of a corporation, by one undertaking to act 
as agent, may be shown to be valid, either by evidence of the 
acts of the corporation, prior to the mortgage, from which an 
authority to make it may be inferred, or by subsequent acts 
showing a ratification: Warren v. Ocean Ins. Go.,^ Shepley, 489 
[88 Am. Dec. 674]; Troy Ikimpike v. MsChesney, 21 Wend. 
396; BvUdey v. The Derby Fishing Co., 2 Conn. 252 [7 Am. Dec. 
271]; Prop, of Canal Bridge v. Gwdon, 1 Pick. 297, 804 [11 

218 Despatch Line v. Bellamy M. Co. [N. H. 

Am. Deo. 170]; Story on Agency, 49, 51, 63, 55, 247, 248; Aug. 
& Ames on Corp. 122, 174; Fleckner y. U. 8. Bank, 8 Wheat. 
863; Bank of U. S. v. Dandridge, 12 Id. 64, 70, 74; Thayer y. 
The CUy of Boston, 19 Pick. 511 [31 Am. Dec. 157]. 

Was there any ratification here, so that this instrument may 
operate as a mortgage of the personal property? There is eyi- 
denoe from which it may be inferred that the money reoeiyed of 
the sayings bank went to the use of the Bellamy company. This 
is not directly proyed, and seems not to be admitted in the argu« 
ment. But there is nothing to contradict this eyidence. It is 
not shown that James and Ira Haselton had not knowledge that 
the money was so receiyed, and used. They did not assent to 
the mortgage, and had no knowledge that any authority was 
giyen to Palmer to make it. Still the money may haye been 
used by Palmer, the agent, in the operations of the company. 
There is no eyidence that the Bellamy company haye eyer ob- 
jected to the mortgage, or that they haye contested the right of 
possession by the sayings bank. 

If the act of one professing to be authorized as agent, in the 
sale or mortgage of property of a corporation, be such as will 
admit of ratification without any formal instrument or express 
yote, and the consideration come to the use of the corporation, 
and is retained, that will be eyidence of a ratification. It would 
clearly be so in the case of an indiyidual. The principal can not 
be permitted to appropriate the money to his own use, and dis- 
claim the act by which it is acquired. If he take the benefit of 
what is thus done, he can not reject the burden. If an agent, 
on the purchase of goods, draw a bill at a shorter date than hia 
instructions permit, the principal may disclaim the transaction; 
but if he claim the property, he can not deny the agency: Neto* 
haU V. Dunlap, 2 Shepley, 180 [81 Am. Dec. 45]. A party who 
has receiyed a legacy under a will, must return or tender it, in 
order to contest the will: HanMeU y. EdnibleU, 6 N. H. 837; see 
also Stoiy on Ag. 245, 253; Clement y. Jones, 12 Mass. 60; Eich- 
mond Jtffg. Co. y. Starks, 4 Mason, 296; Shiras y. Morris, 8 
Cow. 60. 

We are of opinion that the instrument, considered as a mort- 
gage of the personal property, has been sufficiently ratified, and 
may ayail, thus far, to the benefit of the trustees. Possession 
haying been taken by the mortgagees, it is not necessaxy to in- 
quire whether, in order to a yalid record of a mortgage of chat- 
tels made by an agent, it is not necessaiy that the authority, or 
the ratification, as well as the mortgage, should be in writing 

Dea 1841.] Campbell v. Wallace. 219 

and recorded. Whether the saTings bank might not haye waived 
the ratification, and elected to consider Palmer as their debtor, 
we need not determine: RoBsUer v. BossUer, 8 Wend. 494 [24 
Am. Dec. 62]; 22 Wend. 344;^ Story, 246. If the savings bank 
had held the goods, as trustees, at the service of the writ, a tak- 
ing of them from their possession, bj a wrong-doer afterwards, 
would not discharge them; but it might furnish a ground for 
delaying the proceedings, untU the damages could be recovered: 
StoeU V. Brawn and Trustee^ 5 Pick. 181. 

As was suggested, on the argument, this case might have been 
determined by a much shorter process. At the time of the serv- 
ice of the writ, the trustees had nothing in their hands. They 
had not taken possession under their mortgage, and the mort- 
gage itself did not charge them with the possession: Oreenieaf 
V. Perrin and Trustee , 8 N. H. 273. When they took possession, 
afterwards, it was either by right, as mortgagees; or as trespass- 
ers, if the mortgage was invalid; and a party who takes goods 
by trespass can not be charged as the trustee of the owner, to 
whom the wrong is done. But deciding the case upon this 
ground would, it seems, have been only to bring these questions 
before us in another shape, and we have therefore passed ux>on 
them now, in order to save further expense to the parties. 

Trustees discharged. 

What Fobu of CoNraAor bt an Aobrt^wHI bind a principal: See JNoe v. 
Gove, 33 Am. Dec. 724, and note. 

QxNSRAL Rule as to Fixtubbs ib, that whatever is attached to the free- 
hold becomes part thereof and is not to be removed: Miller v. Plumb, 16 Am. 
Dec 466; CoomU ▼. Jcyrdan, 22 Id. 236; Caldwell v. Bneas, 12 Id. 681. This 
labject is treated of esrtensively in the note to Cfrtxff v. HMMpy 17 Id. 680. 
Other later decisions in this series are: Ot^ldd v. Hapffoodf 28 Id. 290; Mc' 
Kemta ▼. Hammond, 30 Id. 366. 

Act of ths Msmbbbs of a Ookpobation at any other place than at a meet- 
ing of the stockholders is of no effect and is void: Pierce v. H, 0. Building 
Co,, 29 Am. Dec 448^ and note, in which the other cases in this series are eol- 

Campbell v. Wallace. 

[12 Nkw Hampshuue, 3S3.] 

Wbsbb a Pabtition of Beal Estate bt a Psobate Ck>UBT has been 
acquiesced in by the heirs for twenty years, the proceedings of the oonrt 
will be presumed to have been regular, and be held conclusive 

Husband Aoqihres vo Interest in Real Estate set Asms to ma Wm 
under proceedings in partition by paying to the other tenants in common 
or coparceners the amounts due them from his wife 

1, Anmm V. fFdHt. 

220 Campbell v. Wallace. [N. H* 

Emtbt bt a Stbavoer in thb Namb ot the Owveb of thx F&ebhold» 
may, by ratification, become the act of the latter, and will then be soffi- 
dent to prevent the bar of the etatate of limitations from attaching. 

Where an Estate Descends to Sevkbal they are coparcenerB, without 
reference to the question whether they are males or females. 

NoN-JOiNDEB OF A Pabty TO A Real Action must be pleaded in abate 
ment or the objeotign is lost. 


misjoinder do not appear from the record, must, if not pleaded in abate- 
ment, be taken advantage of by a motion for a nonsuit; it will be too 
late to urge the objection after a verdict. 
A Child Born Df Foreign Parts of parents who were originally resi- 
dents of this state, and who were married here, is not necessarily an 
alien, nor will the presumption that he is be indulged. 

Wbtt of entry. The demanded premises were part of the 
estate left by Gteorge Bums, who died in 1807. The heirs of 
said Bums were his six daughters. Subsequently to his death 
prooeedings in partition were instituted, which eventuated, in the 
same year, amongst other things, in the award to Esther Love- 
joy, one of the daughters of said Bums, of the demanded prem* 
ises upon her engaging to pay to the other heirs certain sums 
of money representing the value of their interests in the prop- 
erty. The husband of Mrs. Lovejoy gave bond to Mrs. Tuttle, 
another of the heirs, to pay her the amount awarded to her. 
This bond, however, appears to have been subsequently dis- 
charged by the obligee therein accepting a conveyance from 
Mr. Lovejoy and his wife of other premises set apart to the lat- 
ter, under the proceedings in partition. The other sums decreed 
to the other heirs were also paid. In 1816 Mrs. Lovejoy died, 
leaving no issue. The heirs were her sisters and their descend- 
ants. The number of these heirs was reduced by other subse- 
quent deaths, so that at the time this action was instituted, it 
was represented by Mrs. Tuttle, and by the children of Mrs. 
Campbell, one of ike sisters of Mrs. Lovejoy. These children, 
with the exception of one, were the plaintiffs in the present 
action. The exception was of a child bom to Mrs. Campbell, 
while she and her husband were residents in Nova Scotia. The 
plaintiffs, six in number, were all bom in this state. The de- 
fendant in this action represented a title derived from Mr. Love- 
joy, by whom the land had been conveyed after the death of his 
w^e. Plaintiffs relied to take the case from the operation of the 
atatute of limitations upon an entry upon the land in 1835, by 
Jesse Bowers, a deputy sheriff, who entered thereupon by virtue 
of a writ in favor of Mrs. Tuttle and her husband, for the re- 
covery of the undivided half in the premiaeB, belonging to Mrs. 

Dec. 1841.J Campbell u Wallace. 221 

Tattle, as heir of her sister Mrs. Lovejoy, and who, at the re- 
quest of the attorney for plaintiffs, also made the entry in their 
behhlf . Some objection appears to have been made to the valid- 
ity of the proceedings in partition, upon the ground that it 
did not appear that the commissioners had duly notified the 
heirs of the time when they should proceed to partition. A 
yerdict was taken for plaintifis subject to the opinion of the 

Farley A 8. K. Livermore, for the defendant. 

C. H. AtherUm, Abbot, and^Fox, contra. 

Pabxxb, C. J. It may be questionable whether the yalidily 
of the partition of the estate of Q^orge Bums is of importance 
in the decision of this case. But we are of opinion that after 
the heirs had acquiesced in it, and an occupation had been had 
under it for the term of twenty years, the proceedings in the 
probate coiuii must be presumed to have been regular, and be 
held conclusive. It appears, therefore, that Esther Lovejoy was 
well seised of the demanded premises, by means of that parti- 
tion. The execution of the note by her husband transferred no 
interest to him. If he«had paid the money, there would have 
been no resulting trust for his benefit. The land was set off to 
the wife, and the husband would have paid the amount for her, 
having the benefit of the use himself during the coverture. But 
it seems the payment was made, in part at least, by the convey- 
ance of two other tracts of land which were the property of the 

It appears to be conceded by the course of the argument, 
that the defendant must rely upon the inability of the plaintifb 
to make out their case in the first instance. As Esther Lovejoy 
never had issue, the land, upon her death, descended to her 
heirs, and the occupation of it afterwards by her husband, and 
his subsequent conveyance of it to Crosby, were unwarranted. 
Her heirs were her sister, Mrs. Tuttle, and the children of 
Mrs. Campbell, or those of them who may inherit. 

The statute of limitations interposes no bar to the main- 
tenance of this action. The descent was in 1816. In 1835, 
Bowers, at the request of the attorneys of the plaintiffs, made 
an entry upon the land in their behalf, and the plaintiffs have 
i-atified the act. This is sufficient to prevent the operation of 
the statute: Bicliarda et ux, v. FolLaom, 2 Fairf. 70; Co. Litt. 
25S a; FUchet v. Adam», 2 Stra. 1128; 2 Kent's Com., lee. 41; 

222 Campbell u Wallacos. [N. H. 

Despatch Line of Packets y. Bellamy Mfg, Co. dh Trustees, 12 N. 
H. 205 [avie, 203]. 

If the plaintiffs and Mrs. Tattle are to be regarded as 'par- 
ceners, the entry of Tattle and wife, if it was a general entry, 
might perhaps have availed for the benefit of the plaintiffs: 
Com. Dig., Parceners, A, 8; 2 Cruise's Dig. 528. A question is 
made whether there is any estate in coparoeneiy under our 
statutes; and it is objected that if there is, the plaintiffs must 
be regarded as tenants in common, and the action therefore not 
well brought, because they have joined in it; and further, that 
regarding them as cox)arceners, it can not be maintained, be* 
cause there is another who ought to have been joined. 

By the statute of this state, regulating descents, males and 
females inherit together in equal shares. If there are no sons, 
and the estate descends to the daughters alone, there seems to 
be no reason why that does not constitute strictly an estate in 
coparcenery. And there is no essential difference in the quality 
of the estate where the descent is to males as well as females. 
They take in the same manner, and with equal rights. The title 
partakes of the nature of coparceneiy at the common law, and 
coparcenery by the custom of gavelkmd in Kent, or may be 
said to be a union of the two: litt., sec. 241; Co. Lit. 164; 
Com. Dig., Parceners, B; Id. A, 7. ''An estate in coparcenery 
also frequently arises in consequence of customary descents to 
all the children, in which case they are coparceners:" 2 Cruise's 
Dig. 537. The heirs of Esther Lovejoy come, therefore, within 
the description of coparceners, and might be so regarded if the 
case required it. The distinction between estates in copar* 
cenery and in common, is undoubtedly of limited importance, 
and is little regarded here. Chancellor Kent says: ''As estates 
descend in every state to all the children equally, there is no 
substantial difference left between coparceners and tenants in 
common. The title inherited by more persons than one is in 
some of the states expressly declared to be a tenancy in com* 
mon, as in New York and New Jersey; and where it is not so 
declared, the effect is the same; and the technical distinction 
between coparcenery and estates in common may be considered 
as essentially extinguished in the United States:" 4 Kent's 
Com. 363 [367J. But we see no sufficient reason why those who 
thus take by descent should be imperatively required to sever 
in an action for the recovery of the land, and are of opinion 
that they may well be regarded as parceners, for the purpose of 
their remedy in this respect. If they may be considered as 

Dec 1841.] Campbell v, Wallace. 223 

tenants in common, and if they may sever as such, the tech- 
nical reason why tenants in common must sever does not exist. 

Regarding the children of Mrs. Campbell as coparceners, 
Qeorge B. Campbell ought to have been joined, if he is not an 
alien, and the descent was to him along with the others: Steams 
on B. A. 197; Daniels v. Daniels, 7 Mass. 136. But the objec- 
tion should have been taken in abatement: Com. Dig., Abate- 
ment, E, 8; Co. Lit. 164 a. This appears to be the settled rule, 
although the following paragraph, in a late treatise on real ac- 
tions, by a distinguished jurist, seems to indicate an opinion 
that it ought to be otherwise. ''In the class of pleas to the 
person of the demandant, Comyns includes those which show 
that another ought to have joined as demandant in the writ. It 
is now well settled that in personal actions this defect need not 
be pleaded in abatement. If the fact appears in evidence on 
the general issue, or on any issue on which the plaintiff is put 
to show his title, or cause of action, as set forth in his declara- 
tion, he will be nonsuited, or have a verdict against him; and 
there seems to be no reason why the same rule should not have 
been adopted in real actions:" Jackson B. A. 68. What class 
of personal actions is here referred to, is not said. If it be ac- 
tions arising on contracts it is true, but there is little analogy 
between a writ of entry, founded on a disseisin by the defendant, 
and an action on a contract. In personal actions ex delicto, which 
have some similitude, the rule is otherwise: 1 Chitty's PI. 52, 
63; Wilson v. Oamhle, 9 N. H. 74. In the view we have taken 
of the case, it is not important to consider whether the recovery 
by Tuttle and wife, of her share of the land, was not a severance 
of the coparceneiy. If the plaintiffs were treated as tenants in 
common, the result must be the same. Viewed in that light, 
they ought not to have joined: HUls v. Doe, 6 N. H. 330; 
Behoboth v. Hunt, 1 Pick. 228. 

The reason why the common law should have required tenants 
in common to sever in real actions is not perhaps perfectly ap- 
parent. Although seised by several titles, so that they may be 
^ regarded as having several freeholds, a common ownership and 
a common wrong done might well have furnished the ground of 
a common action. They must join in trespass or nuisance to their 
land: 1 Chitty's PL 53; Austin v. HaU, 13 Johns. 286 [7 Am. 
Dec. 376]; and in detinue for charters: Co. Lit. 197 b. If one 
sue alone, it may be pleaded in abatement: Com. Dig., Abate- 
ment, E, 10. And it can be taken advantage of only in that 
way: Bradish v. Schenck, 8 Johns. 151 (117, 2d ed.) So they 

224 Ca^ipbell v. Wallace. [N. EL 

must join in case, for the destruction of their charters or title 
deeds: Daniels v. DanielSy 7 Mass. 135. 

In Massachusetts, Maine, and Yirginia, they may join in real 
actions by statute: 1 Hilliard's Abr. 454, and cases cited; May 
V. Parker, 12 Pick. 38 [22 Am. Dec. 393]; SweU v. Patrick, 2 
Fairf. 180. And in Connecticut they may join by the common 
law of that state: Btish y. Bradley, 4 Day, 298; Clark v. Vimghan, 
3 Conn. 191. In Vermont they may join in ejectment: Hicka t. 
Bogers, 4 Cranch. 164. Whether hy the practice of that state, 
or by statute, was not settled. And in this state, where joint 
tenants sued, it was held to be no defense that they had since, 
by operation of law, become tenants in common: 6 N. H. 328.^ 
These cases may serve to show that the objection is one which 
can not be extended by any equitable consideration. It is to be 
taken as matter of authority, on a technical reason. 

In what manner the objection, that tenants in common have 
joined, is to be taken, does not very distinctly appear in the 
books. Comyns says that in a real action by two, when one only 
ought to sue, it may be pleaded in abatement: Com. Dig. , Abate- 
ment, E, 15. But it seems that it is not always necessary to 
plead this matter specially, either in abatement or bar: Jackson 
B. A. 70. In personal actions ex delicto, if too many be made 
plaintiffs, and tiie objection appears on the record, it may be the 
ground of demurrer, arrest of judgment, etc. If not apparent 
it may be taken on a motion for a nonsuit: Chit. PI. 54. The 
same principle seems to be applicable in real actions, if the ob- 
jection is not required to be taken in abatement. There is noth- 
ing on the record here on which to arrest the judgment. The 
misjoinder was not moved as a ground of nonsuit, at the trial, 
and we are of opinion that it is too late to take the exception 
after verdict. 

There is nothing in the case on which we can determine that 
George B. Campbell is an alien. The fact that he was bom in 
Nova Scotia does not necessarily make him such. If, as was 
suggested in the argument, Bobert Campbell, the father, was a 
British subject, the children may all be aliens: 2 Laws U. S., 
Story's ed. 853; 4 Dane's Abr. 700; Shanks v. Dupont, 3 Pet. 242; 
1 U. S. Dig. 134, pi. 21; Id. 135, pi. 28; Young v. Peck, 21 Wend. 
392; Charles v. The Monson and Brirnfield Mfg. Co., 17 Pick. 70. 
But that fact does not ap})ear, and is not to be presumed. The 
case shows him to have been a resident in this country, and to 
have married here; and the plaintiffs were bom here. His sub- 

1. Hillt ▼. Doe. 

Dec 1841.] Griffin v. Bixbt. 226 

sequent zemoval to Notb Scotia is, of itself, immaterial. The 
plaintifEs, therefore, as the case stands, make title to six sevenths 
of the demanded premises. 
Judgment for the plaintiffs. 

Ratitication or Entbt bt an Aoxnt: Seo Lord Audlefa eamf Cro. 
561, in which it is decided that the entry of the agent beoomes that of the 
principal only from the time of the ratification, a principle which, if ap- 
plied in this case, would have required the heirs to ratify within twenty years 
from the inception of defendant's adverse possession; and Bird t. Brown^ 14 
Jnr. 192; also to be fonnd reported in I Parsons on Ck)ntnustB, page 49, note 
g, explaining this to have been the point decided in that 

Griffin v. Bixby. 

[12 New Hamfshibx, 454.] 

Qbouiid one of the lines which they intend as a boundary to the dowei 
lands, the location so made will control a description of the same line^ 
by courses and distances inconsistent therewith, in their return. 
A Tbxb Standing Directlt upon thx Lins between AojounNO Own- 
IBS is the common property of both parties, and trespass will lie if one 
cots and destroys it without the consent of the other. 

Tbesfabs qiuire clausum fregii. Plaintiff claimed title to the 
locus in quo derived from the heirs of one Hugh Nahor, deceased. 
Defendants, one of whom was the widow of said Nahor, con- 
tended that the land had been set off to her by the committee 
appointed to set off her dower. On the part of plaintiff it ap- 
peared that the return of the commissioners described the south- 
ern boundary line of the dower lands as '^ running from a pine 
tree,*' etc.; thence north eighty-two degrees east, " to the east 
end of said lot," and that the lo(ms in quo was to the south of 
this line. Upon the part of defendant it was shown, that the 
commissioners had run out and marked on the ground the line 
intended as the southern boundary line of the dower lands, and 
that the line so laid out was not straight, but extended a little 
to the south of the line described in their return and included 
the locus in quo. There was eyidence, howerer, tending to show 
that defendants had cut and removed trees standing on the line 
marked out by the commissioners. The case was submitted to 
the court for their opinion upon the questions inyolved. 

Farley, for the plaintiff. 

J. U. Parker, contra. 

Am. Dso. Vol. XXZTII— U 

226 Griffin u Bixby. [N. R. 

Pabxsb, 0. J. If the committee had not run out and marked 
a line when they set off the dower of Mrs. Nahor, the course 
mentioned in the return must have determined the boundary be- 
tween the parties; and parol eyidence could not have been ad- 
mitted to show that there was preyiously a marked line there, 
varying from the course, and that the committee intended to 
adopt that line: JUen y. Kingsbury^ 16 Pick. 236. But in this 
case the committee marked a line, and in this respect the pres- 
ent case differs from that just cited, where the monuments were 
not erected at the time the dower was set off, but at some ante- 
cedent period, and for some purpose not known or explained. 

As the monuments in this case were marked at the time by 
che committee, and intended to designate the land set off, we 
are of opinion that this constituted an actual location, and that 
they must control the course mentioned in the return: Brown \. 
Oay, 8 Oreenl. 126; Eipley v. Berry, 5 Id. 24 [17 Am. Dec. 201]; 
Egrrumd v. Tarbox, 7 Id. 61 [20 Am. Dec. 846]; TJumas t. Pat- 
ten, 18 Me. 829; PrescoU y. Hawkins, 12 N. H. 20, 26; and see 
1 U. S. Dig. 474. The eyidence offered tends to show that the 
parties understood that the line was marked and established 
by monuments, and acted with reference to that fact; which 
strengthens the case, and shows the propriety of the rule: Jach- 
9(m y. Ogden, 7 Johns. 241; Clark y. Mwnyan, 22 Pick. 410 [83 
Am. Dec. 752]. 

As to the second question: In Waterman y. Soper, 1 Ld. 
Baym. 787, cited for the defendants, Holt, 0. J., ruled that if 
A. plants a tree on the eztremest limits of his land, and the tree 
growing extend its root into the land of B., next adjoining, A. 
and B. are tenants in common of this tree, and that where 
there are tenants in common of a tree, and one cuts the whole, 
though the other can not have an action for the tree, yet he may 
haye an action for the special damage by this cutting. What 
action he shall haye is not stated, nor is it quite clear that such 
an ownership can be established, if the root merely extend into 
the other's land. But in Co. lit. 200 b, it is said: ''If two 
tenants in common be of land, and of mete stones, pro metis et 
bwndis, and the one take them up and carry them away, the 
other shall haye an action of trespass qiiare vi et armis against 
him, in like manner as he shall haye for the destruction of 
doyes." And in Oubiii y. Porter, 8 Bam. & Cress. 257, it was held, 
that '' the common user of a wall separating adjoining lands 
belonging to different owners, is prima facte eyidence that the 
wall, and the land on which it stands, belong to the owners of 

July, 1842.] Elliot v. Abbot. 227 

those adjoining lands in equal moieties, as tenants in common;" 
and " where such an ancient wall was pulled down by one of the 
two tenants in common, with the intention -of rebuilding the 
same, and a new wall was built, of a greater height than the 
old one: it was held that this was not such a total destruction 
of the wall as to entitli) one of the two tenants in common to 
maintain trespass against the other." 

It seems to have been admitted, that for an entire destruction 
of the wall by one, trespass might have been sustained. With- 
out going to the extent of the ruling in Lord Raymond, we are 
of opinion that a tree standing directly upon the line between 
adjoining owners, so that the line passes through it, is the com- 
mon property of both parties, whether marked or not, and that 
trespass will lie if one cuts and destroys it without the consent 
of the other: See cases cited in Odiome v. Lijford, 9 N. H. 611 
[82 Am. Dec. 887]. 

Elliot v. Abbot. 

[19 Nbw Hampihzbb, 649.] 

BOHA FmB HoLDKB OF Prohissobt Note ix whiob a Bank is Noiokal 
Patbb may sae thereaxxm in the name of the bank npon giving it proper 
seoQxity against costs. 

A KoTB Patablb* to Okb Psbson, but Deuvbbbd to Akothbb, as the 
promise of the maker to him, may be declared npon by the Uttter in his 
own name as a note made payable to himself by the name of the third 

A KoMiKAL Patbb mat Makb a Valid Indobsbmbnt of a promissory 
note to the real payee, in order to facilitate an action by the latter. 

Tbb Act ob a Kajoritt of thb Dikbotobs of a Cobpobatiok, to be of 
any efifect as the act of the corporation, most have been expressed at a 
regular notified meeting at which all the directors might have been 

CA.SHIER OF A Bank has no Authobttt to Inbobsb Neootiablb Pafkb 
held by it, for the porpose of transferring the interest of the bank 
therein, or for any other purpose than to facilitate the ooUeotion of the 

AssTJHPsrr npon a promissory note. A Terdict was taken bj 
consent for pkdntiff, subject to the opinion of the court upon an 
agreed case. The material facts not stated in the opinion are 
these: Townsend was indebted to the defendant, and upon be- 
ing pressed for payment, told the latter that if he would sign a 
note payable to the Ashuelot bank, with him, he would get it 
discounted and pay him something. Defendant consented and 
did si^ the note now in suit. Upon presenting this note at 

228 Elliot v. Abbot. [N. H. 

bank, Townsend was infoimed that the bank was not discount- 
ing, but was referred to the plaintiff who did discount it. 
Townsend paid OTer part of the money to defendant and in- 
formed him of what he had done, without any objection being 
advanced by the latter. Subsequently Townsend absconded 
from the state, and the plaintiff having first obtained an in- 
dorsement of the note by the cashier of the bank, brought this 
action thereon. It was contended that this indorsement was 
unauthorized. The grounds of this objection appear in the 

Edwards^ for the defendant. 
Handeraofn and Ghawberlain^ contra. 

Pabkeb, 0. J. The note in this case was drawn payable to 
the Ashuelot bank, and there offered for discount. On being 
refused at the bank, because the bank was not discounting, the 
cashier referred Townsend, the principal, to the plaintiff, who 
discounted it, giving an order upon his deposit in the bank. 
Under such circumstances the plaintiff, with the assent of the 
bank, might well have maintained an action in the name of the 
bank, to recover the note for his own use: Bank of Chenango ▼• 
Hyde^ 4t Cow. 567. And in that case Mr. Justice Sutherland, 
in delivering the opinion of the court, says: " The question is 
not whether the bank has a general authority to act in the 
capacity of a trustee, but whether the bona fide holder of a 
promissory note, in which the bank is nominally the payee, has 
a right to sue in the name of the bank. I apprehend, if the 
bank had refused the use of its name, a court of equity woidd 
have compelled it to allow such use, on proper terms." The 
doctrine thus suggested seems to be veiy reasonable; and we 
are of opinion that in this case the plaintiff might have brought 
his action in the name of the bank, giving the bank an unex- 
ceptionable indemnity against costs; and that the bank could 
not, imder such circumstances, have objected to the prosecution 
of the action. Nor could Townsend, or the defendant, have 
made any objection to the maintenance of an action in the same 
manner as if the bank instead of the plaintiff, had furnished 
the money. 

The plaintiff in our opinion might, also, on the facts in this 
case, have maintained an action on the note in his own name, 
declaring on it as made payable to himself, by the name of the 
president, directors, and company of the Ashuelot bank. Town- 
send, who had procured the plaintiff to discount it, and deliversd 

July, 1842.] Elliot v. Abbot. 229 

it to the plaintiff, as the promise of himself and the defendant, 
could not sorel j be admitted to say that it wbs not a promise to 
the plaintiff; and the defendant who receiTed from Townsend, 
by way of payment, a part of the money received from the 
plaintiff, with knowledge how it was obtained, without making 
any objection, and who afterwards in several instances recog- 
nized the plaintiff's right to it, in such a manner that it would 
be competent for a jury to find a promise, on his part, to pay, 
if that fact would avail, the plaintiff must be held by all these 
acts to have ratified the act of Townsend in passing tiie note to 
the plaintiff, as a promise and obligation to him. 

If both the defendants concurrred in delivering the note to 
the plaintiff, as their promise to him, it is immaterial by what 
name the promise is made to him. He is, in such case, the per- 
son to whom the promise is made. And if one so delivers it, 
and the other afterwards ratifies the act, the result is the same. 
It would seem that the plaintiff might also maintaiT) an action 
on the note in his own name, declaring on it as a promise 
to pay the bearer, upon the ground that the name of the payee 
might, if he so elected, be regarded as fictitious: Foster v. 
ShaUuck^ 2 N. H. 446. It would certainly seem to be as avail- 
able to the plaintiff, as if the name of the payee had been left 
blank: Crachley v. Clarcmce^ 2 Mau. & Sel. 90. 

And it is not clear that the plaintiff might not, on the &ct8 
before us, maintain an action on a count for money had and 
received. The defendant had in fact part of the amount of the 
note, in money received of the plaintiff. It is true that he re- 
ceived this, not directly from the plaintiff, but as a payment of 
BO much money on a debt due from Townsend to him. But as 
the note was made partly to raise money, in order that Town- 
send might pay such money to the defendant, and as he received 
part of the identical money furnished by the plaintiff, knowing 
how it was procured, and afterwards recogmzed the plaintiff's 
claim; it would not be a very forced construction, so far as the 
plaintiff is concerned, and for the sake of the remedy, to hold 
that the money was received to the use of the defendant, as weU 
as of Townsend, although as between themselves, the defendant 
was but a surety. The form of the plaintiff's action, however, 
will not permit us to place the case on any of these grounds. 
It is not brought in the name of the bank; and as he declares 
only upon a note made to the bank, and indorsed to him, the 
case, if it can be sustained in its present shape, must be so upon 
that ground only. 

230 Elliot v. Abbot. [N. R 

Although the bank neyer had any interest in this note, we see 
no objection to regarding it as having been made to them, and 
indorsed to the plaintiff, if the indorsement can be upheld upon 
the cTidence. The promise is in terms to the bank. The 
signers did promise to pay the bank; and as they made the 
promise negotiable, the bank might well transfer it. And it 
makes no difference to the defendant, whether the bank dis- 
counted the note, and then sold and indorsed it to the plaintiff; 
or whether the plaintiff, having funds in the bank, furnished 
the money in the first instance; the bank indorsing the note to 
him, and the defendant assenting to the transfer. Without the 
acts showing the defendant's assent to the discount of the note 
by the plaintiff, the case of the Bank of Chenango t. Hyde is an 
authority, as far as it goes, to sustain the plaintiff's right to re- 
cover, if the bank has indorsed. 

We come, then, to the question, has this note been indorsed 
to the plaintiff, by the bank? Is that allegation in the plaint- 
iff's declaration sustained? The defendant may deny this. 
There seems to be no sufficient evidence on which to sustain an 
indorsement through the acts of the directors. A majority of 
them assented, it is said; but this was at no regular notified 
meeting, nor in fact at a meeting of those who did assent, al- 
though that would not have been sufficient to have given it the 
character of an act of the board. There should have been either 
the act of all (and it is not settied whether that would bo suffi- 
cient, unless they met together), or there should have been a 
stated, or regularly notified, meeting, at which all might have 
been present, in which case the act of a majority of a quorum 
might have been good: Despatch Line of Packets v. BeUamy 
Mfg, Go. and Trustees, 12 N. H. 205, 224 [ante, 203]. 

If the indorsement is sustained, therefore, it must be on the 
ground that the cashier had, under the circumstances, authority 
to moke the. indorsement. It is contended that the cashier has, 
prima fade, authority to indorse securities held by the bank; 
and that if he has not authority to transfer the property of the 
corporation, by the indorsement of a note or bill, without a vote 
of the directors, he may do what is necessaiy to collect notes 
due the bank, or left for collection, or lodged as collateral se- 
cuiity. The authority cited for the plaintiff, 3 Mason, 605,^ 
seems to hold that the cashier has, prima fa/ne, authority to in- 
dorse negotiable securities held by the bank, and thereby trans- 
fer the property; and in Hartford Bank v. Barry, 17 Mass. 97, 

1. Wild T. Bank nf Pauamaquoddif. 

July, 1842.] Elliot v. Abbot. 231 

cited for the defendant, although it is said that ** a cashier can 
not transfer the property of the corporation in a note, without 
authority from them, or perhaps from the directors, pursuant to 
powers Tested in them by the cotporation," yet it is said further 
that " he may do what is requisite for the recoveiy of a note." 
The usage testified to by the cashier, in this case, is in accord- 
ance wiili the principles stated in the latter case. The cashier 
here states that in no case has he indorsed to transfer the prop- 
erly of the bank, without a special authority. His is not a gen- 
eral power of indorsement, if such jdaj, prima faciei exist. 

But this case does not come within the principle, or the usage. 
This was not a note belonging to the bank, or held as collateral 
security, and indorsed to enable the plaintiff to collect it for the 
benefit of the bank. Nor was it a note indorsed to the bank, 
and left for collection, and where an indorsement oyer was nec- 
essary, or convenient, in order to facilitate the collection for the 
benefit of the owner. 

The ground upon which the cashier may indorse the name of 
the bank, and transfer the legal interest, in any case, is not be- 
cause the indorsement is merely nominal, transferring no actual 
property. If it were so, this indorsement might be supported 
as the indorsement of the bank. But it is, that the cashier is 
the agent of the bank for that purpose: that by virtue of his 
appointment as cashier, the bank authorizes him to make in- 
dorsementain such cases. Tested by this principle, the indorse- 
ment in this case must fail. It is not the act of the bank, 
because not made by an agent having power to make an indorse- 
ment in such case. The directors are the general agents of the 
bank. The cashier is a special agent, and a matter of this kind 
is not within the scope of his authority. It can make no differ- 
ence that the bank had no interest in this matter, or that the 
bank and the directors have not dissented. There has been no 
confirmation of the act of the cashier, by the bank, or the di- 
rectors, and there is no evidence of an assent to this indorse- 
ment, by the defendant. 

The plaintiff's allegation that the note was indorsed by the 
bank, therefore, fails; and this is a material allegation as the 
case now stands. But it is apparent, from the views we have 
taken of the case, that the merits are with the plaintiff. The 
objection to his recovery arises not from the want of a cause of 
action against the defendant, upon the note declared on, but 
from the failure of the proof to support the particular form in 
which the declaration is framed. Instead, therefore, of render* 

232 Eluot v. Abbot. [N. H. 

ing judgment for the defendant, as we should do on this case if 
the merits were with him, the plaintiff, after the verdiot is set 
aside, maj, if he desire it, have leave to amend upon tenns, and 
the action may then stand for trial. 
Verdict set aside, and leave to amend. 

Tbb Fatsi ImurDSD, wHxir a Nora n Euuu t sis may mm taereon, 
tJMWMfl* tliA Bame of uiothsr pwion is tninitittil tiisreins ObflMMrcial BiuJt t« 
JVencA, 82 Am. Deo. 280^ and note. 

AuvHOBirr or Cahhtib or Bajiki IhtnUY. UmUed Siaim, 80 Am. Deo. 






Ten Eygk v. Delawabe and Raetcan Canal Co. 

[3 Habrimn, 200.J 

Owner of Land through which Stream Runs is Entitled to the oon- 
tinnance of its natural flow, subject only to the right of eminent domain, 
and any one impairing his right is liable in damages. 

8x4X1 MAT Apfbopbiate PROPERTY for publio use on making due com* 
pensation, bat can not appropriate it to a private use except by thtt 
owner's consent. «• 

Canal Company is not a Pubuo Corporation, public corporations being 
only political corporations, or those founded solely for publio purposes, 
the whole interest therein being in the public. 

G4HAL Company is Liable in Damages for Oyerflowing Lands near 
to but not adjoining the canal, by obstructing the natural flow of streams 
through such lands, and its charter authorizing the construction of th# 
canal is no justification. 

AonoH on the case. The &ct8 appear from the opinion. 

Thompson and Vroom, for the plaintiff. 

WUliamaon and WaU, for the defendants. 

NxYiuB, J. The declaration contains four counts. The first 
alleges, that the plaintiff on the first of May, 1832, was seised of 
a tract of land of one hundred acres, through which the Bari- 
tan and Millstone riyers from time immemorial had been accus- 
tomed to flow; that the defendants maliciously filled up and ob- 
strocted, narrowed, and hindered the free passage of said river 
below and opposite said lands, and caused the water to run with 
violence upon and over said lands, wearing away the soil and 
destroying the crops, etc. The second count varies from the 

234 Ten Eyck v, D. & R Canal Co. [New Jersey. 

first only, in alleging this injuiy as done to the possession of 
the plaintiff. The third count chaiges the injury to be done to 
the property by means of a dam, erected by tiie defendants, 
across the Baritan river, below the lands in question; and the 
fourth charges an injury to the possession, from the same act of 
erecting a dam. 

The defendants, after pleading the general issue, justify the 
acts complained of, by four distinct pleas; each of them recit- 
ing an act of the legislature of New Jersey, of the fourth of 
February, 1830, incorporating them with authority to construct 
a canal from the Delaware to the Baritan river, and to improve 
the navigation of said rivers below the junction of said canal; 
to construct locks, works, and devices necessary for the use of 
the canal, and to enter upon all lands, waters, and streams, sub- 
ject to compensation in the mode thereby provided. Under this 
act, in the said several pleas, they justify the wrong complained 
of, with the following averments, to wit: That in all things, 
they complied with said act, and became an incorporated com- 
pany, and entitled to the powers and privileges granted by said 
act; that they constructed the canal in the most prudent and 
skillful manner as a public highway, without designing to in- 
jure the property of the plaintiff. That the Baritan river is a 
public highway, belonging to the people of New Jersey; that 
it»»navigation has been improved by the construction of the 
canal. That the plaintiff's lands are not on the route of the 
canal, but on the opposite side of the river and beyond the back 
water occasioned by the dam. That the acts complained of are 
lawful acts, and that the injury is remote and consequential, 
arising from a public improvement, and common to a large class 
of the community. That they did to the plaintiff's land, no 
unnecessary damage; that the supposed wrongs were conmiitted 
by them as corporators of said corporation, by virtue of said 
act; iiiat the plaintiff never claimed remuneration for the dam- 
age done him, within twelve months from the time of such dam- 
age sustained. That they did not enter upon the plaintiff's 
lands, and that the acts complained of are remote and conse- 
quential and done by them in making a public improvement. 
This is substantially the defense contained in these four pleas; 
and to these the plaintiff has filed a general demurrer. 

This demurrer admits, that the acts complained of were done 
by the defendants in pursuance of legislative authority, but de- 
nies that that constitutes any legal defense to the plaintiff's 
claim for damages resulting from such acts. As the questions 

Feb. 1841.] Ten Eyck v. D. & R. Canal Co. 236 

raised by this demurrer, are in themselves of much importance, 
and are daily becoming more so, as the system of internal im- 
provements by railroads and canals, is advancing; they deserve 
the closest examination and most serious deliberation and sol- 
emn decision of this court. It is proper, therefore, to define in 
the outset, the precise situation of these parties, and the claims 
which they respectively advance in their pleadings. From these 
we learn, that the plaintiff is the owner and occupier of lands 
through or along which the rivers Millstone and Baritan have 
been accustomed to flow, each in an ancient and accustomed 
channel, from time immemorial. That the defendants by means 
of embankments below these lands, have narrowed the stream 
and hindered and obstructed the free and natural flow of their 
waters, and by means of a dam erected still lower down on the 
river Baritan, have caused the water to flow back; by means of 
which acts, he alleges and charges that his soil is washed away 
and his crops destroyed. The plea admits the truth of these 
allegations, but justifies the acts by authority of the legislature 
of this state, and insists that the plaintiff has no lawful claim 
against them, the defendants, for damages. 

The plaintiff, as the owner of these lands, has a clear legal 
right to the^vantages of these streams of water in their ordi- 
nary and natural flow, which right can not be impaired or 
destroyed by any person, natural or artificial, without a corre- 
sponding obligation on their part to respond in damages for the 
injury committed by such interference. He holds this right 
subject only to the paramount sovereign authority of the govern- 
ment under which he lives, and even that authority is not 
wholly unrestricted. For upon principles of natural justice and 
equity upon which are based all systems of civil government, 
and without which, no government can or ought to endure; 
this right can not be taken and appropriated, impaired or de- 
stroyed, without compensation. I do not mean to be under- 
stood, that the government can legally and constitutionally do 
an act, nor permit another to do an act, which may in its conse* 
quences impair the value of that right, without compensation; 
but I mean to say, that the government itself, for public pur- 
poses even, can not take away or destroy the right itself, with- 
out making compensation to the owner. The state may by 
virtue of its right of eminent domain, take private property or 
destroy private rights, for public purposes, upon making just 
compensation; but can not do this for private purposes, with- 
out the consent of the owner. The defendants rely mainly 

236 Ten Etck v. D. & R Canal Go. [New Jersey, 

upon ihe position, that the work authorized by their charter, is 
a public work, designed for public purpoees, and in the execu- 
tion of this work, they acted as public agents and in behalf of 
the state, and therefore insist, that for these acts done in pur- 
soanoe of law, the plaintiff is not entitled to recover damages. 
The plaintiff's right to compensation for the injuries complained 
of, does not depend in any wise uxK>n the fact, that this is a pub- 
lic work; but the mode of enforcing that right does depend 
upon it. For if the defendants are to be esteemed as public 
agents, the remedy can not be against them, but only by an ap- 
peal to the justice of the legislature who directed the act. It is 
important, therefore, to determine the character in which the de- 
fendants have done the acts complained of. They admit, that 
the injuries charged were committed by them as corporators of the 
corporation chartered by the act of the fourth of February, 1880. 
But they are certainly not a public corporation. Public cor- 
porations are political cotporationB or such as are founded 
wholly for public purposes and the whole interest in which, is 
in the public. The fact of the public having an interest in the 
works or the property, or the object of a corporation, does not 
make it a public corporation. All corporations, whether public 
or private, are in contemplation of law, founded upon the prin- 
ciple, that they wUl promote the interest or convenience of the 
public. A bank is a private corporation, yet it is in the eye of 
the law, designed for public benefit. A turnpike or canal com- 
pany is a private company, yet the public have an interest in the 
use of their works subject to such tolls and restrictions as the 
charter has imposed. The interest therefore, which the public 
may have in the property or the objects of a corporation, whether, 
direct or incidental (unless it has the whole interest), does not 
determine its character as a public or private incorporation. In 
the present case, whatever may have been the objects of the cor- 
poration, whether to erect a public navigable highway, or to im- 
prove the navigation of the Earitan river, or whether the 
public have a right to the use and enjoyment of these improve- 
ments when made or not, the company are essentially a private 
company and are not the agents of the state. Their works are 
not constructed by the requirement of the state, nor at the ex- 
pense of the state, nor does the stock belong to the state, nor 
is the state answerable for the lands or materials used in the con- 
struction of these works, or responsible for the debts of the 
company, or for injuries committed by them in the execution of 
their work. The state could not compel the company to con<» 

Feb. 1841.] Ten Eyck u D. & R Canal Co. 237 

stmct this canal or impzove the nayigation of the river; it has 
permitted them to do bo at their own request. The companj 
might have abandoned the work whenever they saw fit, they may 
now abandon it without responsibiliiy to the state. In all they 
have done they have sought their own interest, and if thereby 
they have incidentally promoted that of the public, it can not 
reasonably be supposed it was from a liberality beyond that of 
their fellow-citizens or for the sake of the public. The corpora- 
tion itself, the property of the corporation, the object of the 
corporation, are essentially private, subject only to public use, 
under their own restrictions, and from which use, the company 
are to derive their profits. The whole scope of their charter in- 
dicates clearly that the legislature did not intend to interfere 
with private and vested rights, without providing a recompense 
to be paid by the company and not by the state. And if injury 
or damage has accrued to the private property or rights of others 
which could not be foreseen or anticipated and therefore not pro- 
vided for in the charter of the company, this constitutes no 
reason why the pariy thus injured should not be compensated. 
I am of opinion, that the defendants are a private company, and 
that the law under which they committed the acts complained 
of, is no defense in the present action. 

But it is urged, that the injury complained of is remote and 
consequential, and common to a large class of the community, 
and therefore the defendants are not to respond in damages. 
I do not see the force of this answer. I admit, that in the con- 
struction of the canal and in the improvement of the navigation 
of the river, certain private property and private rights may be 
materially afiected in value, such as withdrawing the business 
of transportation from its former channel, affecting the good- 
will and custom of established stands for the purchase and sale 
of merchandise and produce, and in many respects changing the 
whole course and kind of business of a neighborhood, for 
which the parties whose rights are so affected, can have no 
remedy by suit at law. But this is a case of every day's occur- 
rence with individuals as well as corporations. The opening a 
new store, or tavern, a lawyer's or physician's office, may mate- 
rially affect the income and profits of such as were there before, 
but this can be no more than a damnum absque injuria^ and no 
damages can be recovered. But the present case, as presented 
by the pleadings, differs materially from those. Suppose that 
by narrowing this river, diverting its course, or obstructing its 
passage by a dam, the whole farm of the plaintiff should be 

238 Ten Eyck u D. & R Canal Co. [New Jersey 

overflowed and destroyed; can any one deny his right to com« 
pensation, and if he would be entitled to compensation for a 
destruction of the whole, is he not entitled to recompense for a 
destruction of, or injury to a part? 

But it is further insisted upon by these pleas, that the plaint- 
iff can not maintain this action, because he made no demand of 
the defendants within twelve months after the injury sustained. 
I find no provision in the act requiring him to do so, and am 
of opinion the demurrer should be sustained.' 

HoBNBLOWEB, G. J., and Whttb, J., concurred. Fobd, J., ab- 
Demurrer sustained. 

Ehinsnt DoMAnf, What Usbs Jusmnr Ezxboibb or Powkb of: See the 
aote to Beehman v. SarcOoga etc B. R. Oo.t 22 Am. Dec 686. See also 
WhUeman*§ Ex'x v. Wilmington etc, B, B, Co., 33 Id. 411; Lexington etc, B. 
R. Co, ▼. Applegate, Id. 497, and oases cited in the notes thereto. 

Afpropbiation of Stbbam of Watxb OB Interest therein under the 
power of eminent domain: See Gardner ▼. Newburgh, 7 Am. Deo. 626; Ex 
parte Jenntnga, 16 Id. 447; Cooper ▼. WUlkms, 22 Id. 745; S. C, 24. Id. 299; 
Boston etc, Corp. v. Newman, 23 Id. 622; Varick v. Smith, 28 Id. 417. 

Right of Eipabian OwmsB to Katu&al Flow of Stream of Water 
through his land: See Coalter v. ff tenter, 15 Am. Dec. 726; Martin ▼. Bige- 
low, 16 Id. 696; Dlanchard y. Baker, 23 Id. 604; Society t. Morris Canal Co,, 
21 Id. 41; Crooker y. Bragg, 25 Id. 656; Buddington v. Bradley, 26 Id. 886; 
Omelvany v. Joggers, 27 Id. 417; Davis v. FuUer, 36 Id. 334. 

PuBLio Corporation, what is: See Ccles v. County qf Madison, 12 Am. 
Deo. 161; Begents v. Williams, 31 Id. 72. In Bundle v. Delaware etc. Canal 
Co,, 1 Wall. jun. 291, Grier, J., quotes with approval the language of the 
opinion in the principal case as to the defendant corporation being merely a 
private corporation. The doctrine of the case as to the distinction between 
private and public corporations is approved also in Board qf Directors v. 
Houston, 71 III. 322. In Tinsman v. Belvidere etc, B, B, Co,, 26 K. J. L. 148, 
the case is followed on this point, and also as to the liability of private 
corporations from injuries resulting from their acts in constructing public 
improvements under the authority of their charters. That case was very 
similar in its main features to Ten Eyck y, Delaware etc Canal Co, 

Damages for Overflowing Land, LiABiLmr for: See Stout v. McAdamSf 
83 Am. Deo. 441; WtUiams v. Nelson, 34 Id. 4S. 






[36 WXHDSLZ., 870.] 

Bdvatois not tct Duo fbom thb Gboukd abb Ezdcft from exeeatiDn 
under a statate exempting " necessary vegetables actually provided for 
family use." 

fiSxsMFnoN Statute is Remedial, and should be liberally oouAtmed. 

Ebbob from Rensselaer common pleas in an action of trespass 
against a constable for selling on execution certain potatoes 
planted by the plaintiff on the land of a third person on the 
shares, the same not having been yet dug from the earth. The 
plaintiff claimed that the potatoes were exempt under the stat- 
ute. Judgment for the plaintiff, and the defendant brought 

O. M. DaviSf for the plaintiff in error. 

J. 8, Olin, for the defendant in error. 

By Court, Nelson, 0. J. The trial before the justice appears 
to have been conducted loosely on both sides, and it is therefore 
somewhat difficult to arrive at any tangible point, to induce the 
court to interfere. The question whether potatoes in the field 
are exempt from execution, under the statute 2 R. S. 367, sec. 
22, subd. 4, is perhaps in the case, or in other words, whether 
they may be regarded "as necessary vegetables actually pro- 
vided for family use." The proof shows the potatoes were 
planted and raised expressly for such purpose, and that they do 
not exceed the quantity necessary for the family. It is supposed 
they must be dug and laid up in store before they can be con- 

240 People v. Kendall. [New York, 

eidered as proTided- " for family use/' This is too narrow a 
construction. The clause is remedial, and should be liberallj 
expounded to effect the humane object in view. The argument 
assumes that the legislature contemplated the procurement of the 
articles in some way other than by cultivation; as if the mode 
of acquiring them was regarded in fixing the exemption. The 
supposition is preposterous. As the ** necessary vegetables" are 
absolutely exempt, they will be protected in any stage of the 
process of obtaining them for the fiunily use, whether by plant- 
ing them, or in any other way. 
Judgment afiirmed. 

Exemption Statutes are Remedial and should be liberally conBtraed in 
favor of the debtor to efifect the object intended: Robhuon's caae, 3 Abb. Pr. 
467; BUdng v. Vandenburgh, 17 How. Pr. 82; Otiffin v. Sutherland, 14 Barb. 
458; Ford ▼. Johnacn, 34 Id. 365, all citing the principal ca^e. 

Potatoes Gsowing in the Ground, Exemption of. — ^In King v. Moort^ 
10 Mich. 538, the judges were evenly divided on the question as to whether 
or not potatoes recently planted and just visible above the ground were exempt 
from execution as "provisions for the comfortable subsistence of a house- 
holder," Campbell, J., and Martin, 0. J., holding the affirmative, and Ghris- 
tiancy and Manning, JJ., the negative. The principal case was approved by 
Campbell, J. It was cited also by Christiancy, J., who seemed to regard il 
as being a case where the potatoes though not yet dug were mature enough to 
be fit for food. 

People v. Kendall. 

(25 WEin>EI.L, 399.] 

where he purchases such goods on a credit by falsely representing him* 
self to be a joint owner with his father of certain property. 

Indictment for obtaining goods by false pretenses. A verdict 
of guilty haying been found against the defendant in the com- 
mon pleas by direction of the court, the defendant brought the 
case here on a bill of exceptions. The defense was that the de- 
fendant was an infant at the time of purchasing the goods, and 
the contract not being binding upon him he could not be guiliy 
of an indictable fraud in making the contract. It appeared 
that the defendant had defeated an action for the price of the 
goods by pleading infancy. The other facts appear from the 

H. Van Der Lyn, for the defendant. 

J. Clapp, district cUtomey, for the people. 

May, 1841.] People v, Kendall. 241 

By Court, Nelson, C. J. The question presented in this case 
is, whether a minor is within the statute making it an offense to 
procure goods by false pretences. A very ingenious argument 
has be^ji submitted by counsel for the prisoner maintaining the 
negatv/e. The offense as charged, consists in the defendant 
havvj; procured a fur cap from N. & B. by falsely affirming thai 
he V'UB interested in the stock and other property on a farm 
occ'/pied by his father. It appears that he lived with his father 
at i'he time, who supplied him with the usual necessaries for his 
co/idition. The contract of sale therefore was not binding, on 
'Micount of his minority. Hence it is insisted he can not be guilly 
)f fraud or deceit therein, that can in any way affect him, and 
,vhich are essential ingredients in the crime; that as the contract 
;t8elf is voidable, notwithstanding the false representations, they 
%re to be disregarded as idle and unmeaning. This is all un- 
loubtedly correct as it respects the civil remedy; for it is well 
lettied that a matter arising ex corUractu, though infected with 
baud, can not be changed into a tort in order to charge the infant 
by a change of the remedy. Several strong cases to this effect 
are referred to in the brief submitted. But other considerations 
present themselves when viewing the case in a criminal aspect, 
to which effect must be given, and which are decisive against 
the prisoner. 

The statute, 2 B. S. 564, sec. 53, is general, " every person, 
who with intent to cheat or defraud another," "shall be 
punished," etc. It contains no exception in favor of infants. 
All the books agree that where an act is denounced as a crime, 
even of felony or treason, by a general statute, it extends as weU 
to infants, if above fourteen years, as to others: 1 Hawk. 1; 4 
Bl. Com. 23; Hale P. G. 21; 3 Bac. 592; Beeves Dom. Bel. 257. 
The gist of the offense here consists in procuring the goods of 
another by false pretenses, with the intent to cheat and defraud; 
intentionally and fraudulentiy inducing the owner to part with 
his property by willful falsehoods, in representing himself to be 
in a condition in which he knew he was not: 14 Wend. 558; 11 
Id. 566.' 

The legal effect of any contract that may have been formally 
entered into in the course of conmiitting the offense : in other 
words, the question in respect to any civil remedy, the party 
defrauded might have against the prisoner, is not at all material 
in defining the crime. They are wholly distinct and discon- 
nected, and depend upon the application of a different set of 

1. PeopU T. Hotgmn; B. O., 98 Am. Deo. 6811. 
AM. Dxc. Vol. XXXVU-16 

242 People v. Kendall. [New York^ 

principles. Suppose a minor in entering into a contract not 
binding upon him on account of his privilege, should commit a 
forgeiy, or pass counterfeit money: can there be a doubt but 
that he would be punishable for the offense, though the contract 
itself, of which the act is perhaps but in part execution, was- 
Toid or voidable? It is a perversion of the whole doctrine of 
the privilege of an infant, to extend it to an exemption from 
criminal responsibilities in the sense contended for by his ooun* 
sel. He is, indeed, thus privileged in a degree when under the 
age of fourteen; for then he is presumed to be doli incapax, and 
the prosecutor must show, alBSrmatively, to the court and jury 
that his understanding has reached to sufficient maturity and 
strength to distinguish between good and evil. The evidence 
of malice will supply age. This is the extent of the privilege in 
a strictly criminal point of view. There are cases going beyond 
this, where the corporal punishment is but collateral, and not 
the direct object of the proceeding against the infant; but it ia 
unnecessary to look into them, as they have no bearing upon 
the question here: 3 Bacon, 591; Beeve, 257. 

It was very early held that minors were subject at common 
law to punishment for the offense here charged; such as cheat- 
ing with false dice: Sid. 258; 1 Hawk. 343, tit. Cheats, 9 Yin. 
396, pi. 18. So under the statute of 33 Hen. Ym., c. 1, it 
seems to have been determined that an infant might be convicted 
for procuring goods by false token, showing himself of age, and 
afterwards pleading his infancy: Hawk. 345, n. 2. 

The proceedings must be remitted to the general seesions of 
Chenango, with directions to proceed to judgment. 

CBiftriNAL Liability of Infants: See State v. Aaron, 7 Am. Dec 592; 
State V. Guild, 18 Id. 404. 

Infants* Liability fob Torts, especially for those growing out of or con- 
nected Mrith contracts, see the note to Humphrey v. D<mglaM, 33 Am. DeCr 
179. In Wallace v. Moras, 5 Hill, 392, the principal case is cited to the 
point that an infant is chargeable by action for a tort in obtaining goods 
fraudulently with an intention not to pay for them. In Campbell v. Perkiiu, 
8 N. Y. 440, on the other hand, Taggart, J., quotes with approval what is 
said above by Chief Justice Nelson, that matter arising ex cojUractu, though 
tainted with fraud, can not be converted into a tort to charge an infant; and 
Wallace v. Moras, supra, is referred to as apparently militating against this 
doctrine. In Moore v. Eastman, 4 N. Y. Sup. Ct. (T. & 0.) 40; S. C, 1 
Mun, 580; and Hewitt v. Warren, 10 Id. 564, the principal case is cited as 
recognizing the doctrine that an infant is not liable for a tort arising ex con- 
tractu, unless the tort amounts to an election to disaffirm the contract, or 
unless the other party has first disaffirmed the contract because of the tort. 
In Merrlam v. Cunningham, 11 Cush. 43, the case is referred to, among^ 

May, 1841.] Btebss v. Wheeler. 243 

othflrs, as anthori^ for the principle, that firandnlent r ep ree en tatians made 
hy an infant in proonnng a contract can not he set np aa an answer to the 
plea of infan<7 in an action on the contract. 

IiiTiirr TO Chbat aitd Dsfraitd ia of the gist of the action in a proaeoa- 
tioD for ohtaining goods hy false pretenses: Clark ▼. PeopUp 2 Lans. 832; 
Brown ▼. People^ 16 Hon, 537, hoth citing the principal case. See alM PeO' 
fte ▼. ffoynet, 28 Am. Dec. 530. 

RsnsBSS V. Wheeleb. 

[3S WamuL, 434.] 

Pabol pABTmoN OABBTin) UTTo EFFECT BT P068BB8ION in aooordanoo tliara- 
with, is binding between tenants in. common whose titles are distinct. 

Pabol Pabrtion bt Gbahtbb of Husband who is Tbnabt bt Cubtbbt» 
the wife not having acknowledged the deed so as to pass her interest^ 
though not binding on the wife, is good in ejectment against a stranger. 

DiOLABATiON IS Amxkdablb aftbb Vkbdiot for the plaintiff ia ejectment, 
to conform to the nature of his title, where he claims title to the 
whole of the premises, but his title as to an nndiTided part is sabject to 
be defeated by a fatore daim of ayane-coverC 

EjBonaERT for fifty acres of land. The plaintifffl, Byerss and 
Pierson and wife, alleged in the fifth and seyenth counts of 
their declaration that they were, on a certain day, possessed of 
the premises, describing them by metes and bounds, the said 
Byerss and the wife of Pierson claiming title in fee, and the 
said Pierson claiming as tenant by curtesy in right of his wife, 
and that while so possessed they were ejected by the defendant. 
The premises in question constituted haJf of a certain lot which 
formerly belonged to one Lindsley, who, in 1794, conyeyed an 
equal undiyided moiety of his said lot to one G. Byerss, who 
afterwards died, leaying as his only children and heirs the 
plaintiff Byerss and the wife of the said Pierson. Lindsley 
also died, and his children and heirs conyeyed their interest in 
said lot, of which the premises formed a part, to one Hopkins, 
who conyeyed to one Trayis. It appeared that three of Linds- 
ley's daughters were married women, and although they joined 
with their husbands in the conyeyance to Hopkins, they had 
not acknowledged the same so as to pass their interest. In 
1810 a diyiding line was established between the north and 
south parts of said lot by Trayis and the plaintiffs, Trayis occu- 
pying the north part, and the plaintiffs the south part, the 
premises now in question, and it appeared that the parties had 
eyer since occupied their respectiye portions of said lot in accord- 
ance with said line. After proof of these facts by the plaintiffs at 


244 Ryerss v. Wheelee. [New York, 

the circuit, the defendant moved for a nonsuit, on the ground 
that the plaintiffs had not proved title according to their allega- 
tions, because the said daughters of Lindsley, not having ac- 
knowledged the deed to Hopkins, were still entitled to three 
sevenths of an undivided moiety of the said lot, and because 
their title not having passed to Hopkins, the parol partition 
agreed to by his grantee was inoperative. Motion overruled, 
and verdict for the plaintiffs, which the defendant moved to set 

A, Worden, for the defendant. 

H. Welles, for the plaintiffs. 

By Court, Nelson, 0. J. It has been repeatedly decided in 
this court that a parol partition, carried into effect hy posses- 
sion and occupation in conformity thereto, will be binding be- 
tween tenants in common, whose titles are distinct, and the 
only object of the division is to ascertain the separate posses- 
sions: 4 Johns. 292;' 9 Id. 270;» 14 Wend. 619;» Co. litt 169 
a; Com. Dig., Parceners, c. 5. Here has been an acknowledged 
division and occupation accordingly, by the parties, for some 
thirty years. I admit it will not be binding upon the three 
daughters of Lindsley, who were femea-coveri, and did not 
acknowledge the deed to Hopkins. But it would have been 
binding upon the husbands, who were tenants by the curtesy, 
if parties to the arrangement. They could have consented, and 
those who are in under their title, can do the same during the 
continuance of their estates. A different question will arise 
when the three heirs appear and claim their undivided interest. 
That can not happen till the death of their husbands, who, for 
aught that appears, are still living. The plaintiffs, therefore, 
are entitled to the possession of the whole of the fifty acres. 
There may be some difficulty imder the revised statutes in 
describing the precise nature and extent of their title: because, 
as to three sevenths of the premises, it may be defeated by the 
future claim of tine femea-covert. The question is reduced to 
one of form, and the declaration is amendable, so as to conform 
to the nature of the title of the plaintiffs. We see no objection 
to the verdict standing upon the fifth and seventh counts of the 
declaration. It will not conclude the rights of ihefemes-^^overt, 
they not being parties to the suit; and it can not lie with the 
defendant to dispute the effect of the partition, which, while it 

1. Jack$on t. Harder, 4 Johns. 203; S. 0., 4 Am. Deo 901, 

2. Jack9on ▼. Votfmrgh; S. 0., Am. Deo. 376. 
a. CorMn T. Jatktom; 8. O., 38 Am. Deo. 660. 

May, 1841.] Rtebss v, Wheeler. 245 

remains in force, shows an exdusiTe right in the plaintiffs to 
the possession of the premises. 
New trial denied. 

Pabol PARTmoN, Vaudift or: See Porter ▼. PerOna, 4 Am. Deo. 52; 
laekean ▼. Harder^ Id. 262, and note; Jcu^kmm ▼. VoAwrgh^ 6 Id. 276; 
Haughabangh ▼. Hanald, 5 Id. 548; Cwnpton ▼. Mathews, 22 Id. 167; Oor- 
bin ▼. JackiOJi, 28 Id. 550 and note; Booth v. Adams, 34 Id. 680. Parol par- 
tition aooompanied by possession in acoprdance therewith, is binding on ten- 
ants in common holding by distinct titles: Mount ▼. Morton, 20 Barb. 128; 
OtU y. Ouaack, 43 Id. 549; Baker v. LorUlard, 4 K. T. 262; Wood ▼. Fleets 
36 Id. 504, all citing the principal case. 

Amindmxnt of Dbolaration in EjBCTiCB2rr is freely allowed: SoeDen r. 
Snou^uU, 22 Am. Dea 496: See also TtUtle ▼. Jaehon, 21 Id. 306. If the 
plaintiff in ejectment fails to prove title to as mnoh as he claims, he may re- 
oorer according to the proof, and the declaration may be amended in con« 
ionnity therewith: Kettogg ▼. Kellogg, 6 Barb. 131, citing Hyeru ▼. Wh^kr. 







Van Hook v. Whitlock. 

[20 Webtdell, 43.] 

PATION OF Three Years Prescribed for Actions upon Statutes by 
parties aggrieved to recover benefits secured thereby, under the New 
York statute of limitations, does not, it seems, apply to a bill filed by 
oreditors of a corporation, under a provision in its charter to charge th« 
■tookholders with payment of its debts. 
Debts Cheated Prior to Passage of Act Discharoino Insolvent Ck>a' 
roRATiONS and their stockholders from all their corporate liabilities upon 
making the assignment therein prescribed, are exempt from the oi>eration 
of a discharge under such act, because, as to them, the act is unconstita- 
tiooal; but a creditor accepting a dividend under the assignment waivei. 
the benefit of the exemption and his debt is barred. 

Appeal from chancery. The nature of the suit is stated in 
the opinion. The chancellor dismissed the bill, holding the 
daims of the complainants to be barred by the statute of 
limitations, and also by a discharge under the act of 1814, re- 
lating to insolvent corporations: 7 Paige Ch. 373. The com- 
plainants appealed. 

Z>. D. Meld and O. Wood, for the appellants. 

8. A. Foot and O. Orijffin, for the respondents. 

By Nelson, G. J. The bill in this case was filed by sey- 
eral creditors of the Commercial insurance company of New 
York for the purpose of charging the defendants, as stockhold- 
ers of the same, under the twelfth section of its charter, which 

1841.] Van Hook u Whitlock. 247 

declared, that in respect to all debts contracted by the corpora- 
tion previous to the expiration of its charter, the persons com- • 
posing the company at the time of its dissolution should be 
responsible in their individual and private capacity to the extent 
of their respective shares of stock at the time. 

The several debts of the complainants had accrued before the 
passage of the act of April, 1814, respecting incorporated insur- 
ance companies in cases of their insolvency, of which act this 
company took the benefit in July of the same year, and were 
dij9charged from their debts in pursuance of its provisions. The 
second section of the act makes the assignment under the order 
of the proper officer, a full discharge not only of the corpora- 
tion, but also of the president, directors, and stockholders of 
the company from all debts due at the time of the assignment. 
The complainants admit that they have received from the as- 
signees, under the act of 1814, several dividends out of the 
assets of the company, amounting in the whole to fifty-one per 
cent, upon their respective demands. The defendants mainly 
rely, as a defense to these claims by the creditors of the com- 
pany, and as exempting them from personal liability: first, upon 
the statute of limitations which they set up in analogy to pro- 
ceedings at law, the case not being one of exclusive equity cog- 
nizance; and, second, upon the discharge of the chancellor under 
the act of 1814. 

1. As to the statute of limitations: A clause in the sixth sec- 
tion of the R. L. 1818, p. 187, and the like provision continued 
in 2 B. S., sec. 81, p. 298, is referred to on this branch -of the 
case. It is found in a section of our act of limitations, that re- 
lates to actions, informations, and indictments sued out and ex- 
hibited for forfeitures upon penal statutes, and which provides, 
that where the forfeiture is given to the people, the limitation 
shall be two years; if given to any person who shall prosecute, 
or to the people and any such person, then one year for the per- 
son to sue; and in case of default, two years in behalf of the 
people after the one is ended; and then comes the clause in 
question, substantially as follows: " And that all actions or in- 
formations that shall at any time be sued or exhibited for any 
forfeiture, or cause upon any statute, the benefit or suit whereof 
is given, or limited to the party aggrieved, shall be sued, etc., 
within three years next after the offense or cause of action ac- 
crued, and not after." This particular clause is not found in 
31 Eliz., c. 5, sec. 5, from which the rest of the section is taken; 
and the reason of its insertion obviously grew out of a defect in 

248 Van Hook u Whttlock. [New York, 

the Engliflh statate, which omitted to provide for any limitation 
where the forfeiture was given to the party aggrieved: 1 Tidd, 
14; Willes, 443, n.;* 1 Ld. Baym. 78." We have several penal 
statutes, where the penally or forfeiture, instead of being given 
to the people, or common informer, is limited to the aggrieved 
pariy. There are also others penal in their nature, in which the 
remedy is confined to the party injured; and were it not for this 
provision, there would be no limitation to the period for bring- 
ing these actions. This view gives full operation and effect to 
the daase without claiming for it the broad construction insisted 
upon by the learned courts below. 

I do not, however, intend to discuss the question, not regard- 
ing it matierial in the view I have taken of the case; but felt 
bound to present it for the purpose of entering my dissent to 
the construction attempted to be given to the clause. If it 
really possesses the sweeping effect claimed, for aught I see, it 
must present a short bar of three years to eveiy action, and 
cause of action arising out of and founded upon any statutory 
r^fulation : such as suits against heirs, executors, and adminis- 
trators, the presidents and other officers of corporations under 
the general banking law, besides many others that might be 
enumerated. Certainly, the suit is as completely founded upon 
the statute against the president of the bank, and the creditor 
is as much aggrieved by the non-payment of his debt by the in- 
stitution, as can be predicated of the case under consideration; 
and if the three years' bar is applicable to the one case, I do not 
see how it can consistenUy be denied in the other. But I forbear 
going into the argument. 

2. As to the discharge: As all the debts of the complainants 
accrued before the act of 1814, under which the discharge was 
granted, the act is clearly inoperative according to the doctrine 
of Sturges v. Crouminshield^ 4 Wheat. 122, and Ogden v. Saun-^ 
ders, 12 Id. 213, as impairing the obligation of the contract^ 
unless there is something in the case that forbids the application 
of the doctrine of these cases. As I understand the final decis- 
ion of the court in the case of Ogden v. Saunders, as delivered 
by Mr. Justice Johnson, it was intended to hold, that as between 
citizens of the same state, the insolvent's discharge is valid as it 
affects contracts made posterior to the law; but as against citi- 
sens of other states it is void, as to all contracts wherever made. 
Accordingly a discharge in New York, under the law of 1801» 
from a debt contracted in the state with a citizen of Kentucky, 

1. Pljfwumtk T. Waring, 2. Chance r. Adams, 

1841.] Van Hook v. Whitlock, 249 

after the passage of the act was held void, and in Shaw t. Bob- 
bins, 12 Wheat. 369, n., a like judgment was given. A majority 
of the court concurred in the opinion of Mr. Justice Johnson, 
and have since regarded the principles there established as the 
setUed law of the court: 6 Pet. 848 and 635.' 

Mr. Justice Stoiy, in his commentaries on the constitution, 
thus states the result of the various decisions: 1. That they (the 
state insolvent laws) apply to all contracts made within the state 
between citizens of the state. 2. That they do not apply to con- 
tracts made within the state between a citizen of the state and 
a citizen of another state; and, 3. That they do not apply to 
contracts not made within the state. In all these cases it is con- 
sidered, he observes, that the state does not possess a juris- 
diction co-extensive with the contract over the parties, and, 
therefore, that the constitution of the United States pro- 
tects them ^m prospective as well as retrospective legisla- 
tion: 3 Story's Com. 256. Still I am not aware that it has 
been directly determined by any case in the supreme court of 
the United States, that the discharge would not be a bar against 
a citizen of another state, where the suit is brought in the court 
of the state in which it was granted, and upon a contract made 
therein posterior to the law. 

But in Clayy. Smithy 3 Pet., 411, the court held, that if the 
creditor voluntarily makes himself a party to the proceedings 
under a state insolvent law which discharges the debt, and ac- 
cepts a dividend declared under the law, he will be bound by 
his own act, and be deemed to have abandoned this extraterri- 
torial immunity. The facts are so imperfectly stated in the re- 
port of the case, that no principle can be deduced from the 
decision, except we may presume that without the assent of the 
creditor to the proceedings, by coming in and accepting a divi- 
dend, the discharge would have been invalid. The principle is 
not new, as it had been before repeatedly recognized in analo- 
gous cases, both in this country and in England: 3 Cai. 154;' 
8 Bam. & Cress. 477; 2 Kent's Com. 393, n., 3d ed. ; Baldwin's C. 
C. 296;» 2 Pet. Dig. 470. In PhiUips v. AUan, 8 Bam. & Cress. 
477, a discharge under the law of Scotland was set up against a 
debt contracted in England, which was conceded to be no bar; 
but the plea averred that the plaintiff appeared in the court in 
Scotland and opposed the discharge of the defendant, which was 
relied on as evidence of his consenting to be bound by that law. 

1. Atyfa T. Acharitf. 2. Van Baugk ▼. Van Andatn; 8. 0., 2 Am. Deo. 3^9. 

3. WoodhuUy. Wagner, 

250 Van Hook u Whitlock. FNew York, 

That conclusion from the premises, was denied by the court; 
but it was conceded that if he had taken the benefit of the law 
hj coming in and receiving a distributiye share of the property, 
it would have been otherwise. That would have been such an 
assent as might have bound him. Our insolvent act recognizes 
the same principle by declaring that the discharge shall exonerate 
the insolvent from all debts contracted within the state, etc., 
owing to persons not residing within it, who shall have united 
in the petition for the discharge, or shall have accepted a div- 
idend from the estate: 1 R. S. 781, sec. 30. This ground, there- 
fore, taken by the chancellor in favor of the defendants, I think, 
affords a clear and decisive answer to the severed demands of 
the complainants; upon which, alone, I shall vote for an affirm- 
ance of his decree. 

On the question being put, Shall this decree be reversed ? the 
members of the court present at the argument unanimously an- 
swered in the negative. Whereupon the decree was affirmed. 

Vaubitt or State Insolveut Law as respects antecedent debts, and 
debts owing to citizens of other states: See the note to Norton ▼. Cook, 23 
Am. Deo. 346, where this sabject is discussed at length. See also J^rejf v. 
EMrk, Id. 581, and note; Van Rough v. Van Aradaln, 2 Id. 259; Smith v. 
Smilh, 3 Id. 410; Baker v. Wheaton, 4 Id. 71; WhUe v. Canfield, 5 Id. 249; 
Blanchard ▼. Russell, 7 Id. 106; Vanuxem v. ITadehursts, Id. 582; Maiher v. 
BuMh, 8 Id. 313; Hicks ▼. Hotchkiss, 11 Id. 472; SmUh ▼. Parsons, 13 Id. 606. 
In Brigluim v. Henderson, 1 Cush. 432; Gardner v. Lee^s Bank, 11 Barb. 564, 
and Hoyt v. Thompson, 5 N. Y. 349, the principal case is cited to the general 
position that a discharge nnder a state insolvent law does not affect claims of 
citizens of another state. In PraJU v. Chase, 19 Abb. Pr. 160; S. C, 29 How. 
Pr. 305, and Davidson v. Smith, 1 Biss. 353, the intimation in the principal 
case that an insolvent discharge in one state will bar a debt due a citizen of 
another state, who sues in the courts of the former state, is approved. In 
the case last cited the debt was a judgment recovered prior to the discharge. 

Non-bbsidbnt Ckbditor dobs not Waive Immunitt from the operation of 
a state insolvent law by appearing and opposing the debtor's petition on an 
order to show cause: Norton v. Cook, 23 Am. Dec. 342. 

Pabty may Watvr Constitutional Provision or prohibition in his favor: 
Lee V. TUlotson, 35 Am. Dec. 624, and cases cited in the note thereto. The 
principal case is recognized as an authority to the same effect in Vose ▼. Cock- 
croft, 44 N. Y. 423; Pierson v. People, 79 Id. 429, and People v. Williams, 3 
N. Y. Sup. Ct. (T. & C.) 341. 

Statotb op Limitations as to Actions upon Statutes for the benefit of 
parties aggrieved, limiting such actions to three years, was held, in Freeland 
y. McCtdlough, 1 Deu. 424, to apply to suits against stockholders of a cor- 
poration to charge them with debts of the corporation under the statute. 
This is contrary to what is laid down on that point in the principal case. It 
is said, however, in Freeland v. McCullough, that the point was not ''directly 
in issue or material," in Van Hook v. Whitlock. The case is cited on the same 
point in Lindsay v. HyaU, 4 Edw. Ch. 100, and Lowry v. Inmcui, 2 Sweeny, 

1841.] Remsen v. Brinckerhoff. 251 

Rembei^ v. Bbinokebhoff. 

[36 WXHDBLL, 833.] 

P0BIJOATIOM OF WiLL IS Nbcxssabt, undsb New Yobk Statuts ot 1830^ 
to give it validity, and to oonstitate such publication there must be some 
tfommtini cation by the testator to the witnesses at the time of signing or 
acknowledging the will, indicating an intention to give effect to tho 
paper as the testator's will, but no particular form of words is ueoesaary. 

Mni Want of RisooLLEonoN of Witnessbs to Will, that the testator 
indicated the instrument to be his will, is not evidence per ae of non-com* 
pliance with requisites of the New York statute of 1830, as to publica- 
tion, where the attestation clause states that the testator declared the in- 
stmmeut to be his wilL But where the witnesses testify that neither 
tlie attestation clause nor the will was read by them, and that the testa- 
tor did not state the instrument to be his will, but at the time of signing 
merely aoknowledged it to be his "hand and seal for the purposes therein 
mentioned,*' there is no proof of publication, and the will is inoperative, 
although the attestation clause may state that there was publication. 

Appeal from a decree of the court of chancery, reTersiiig a de- 
cree of the surrogate, admitting to probate an alleged will of 
Dorothea Brinckerhoff, purporting to haye been executed in 1834, 
which decree of the surrogate had been affirmed by one of the 
circuit ju:dges on appeal. The attestation clause, signed by the 
witnesses, stated that the testatrix, at the time of signing and 
sealing the will in their presence, acknowledged to each of said 
witnesses " that she subscribed the said writing, and declared it 
to be her last will and testament;" and that they subscribed 
their names in her presence and in the presence of each other, 
etc. The witnesses stated, however, that the will was not read 
to the testatrix, nor did the witnesses read it or any part of it, 
except that one of them read the last line of the attestation 
clause. Both witnesses testified that they saw the testatrix sign 
and seal the will, and that she acknowledged it *' to be her hand 
and seal for the purposes therein mentioned," but that it was 
not stated by her or by any person present that the instrument 
was a will, nor was that question asked by the witnesses. One 
of them stated that he omitted to write his place of residence, 
and that the testatrix, observing it, asked him to supply the 
omission. It was upon this evidence that the surrogate admit- 
ted the instrument to probate. From the chancellor's decree 
reversing this decision, the executrixes named in the instrument 

O. Chriffin, for the appellants. 

G, Brinckerhoff^ for the respondents. 

252 Remsen V, Brinckerhoff. [New York, 

By Nelson, C. J. The question involved in this case is 
simply as to what constitutes a legal execution of a will, under 
the provisions of our revised statutes. It is a question of first 
impression, and it is of great importance that it should be early 
and finally settled. The weight of authority in England, as 
abundantly shown by the cases, very ably reviewed by the chan- 
cellor, and by others that might have been referred to, 1 Phill. 
Ev. 50; 2 Stark. Ev. 920, is, that under the 29 Car. 11., c. 3, 
sec. 5 (of which our old statute concerning wills was a copy), no 
publication by the testator, in the sense declared by our recent 
act, was required as essential to the validity of the will; and 
this, I think, has been regarded as the law in this state before 
the act of 1830, though I do not find that the attention of the 
courts has ever been drawn to the partictilar point in any of the 
cases: 1 Wend. 412, 413.' 

In Moodie v. Beidj 7 Taunt. 356, decided in 1817, Chief Just- 
ice Gibbs observed, " that a will, as such, requires no publica- 
tion; that be the publication what it may, a will may be good 
without it." Again, he remarked, that he had called on the bar 
in the course of the argument, to say what publication was? 
that he did not wonder he had no answers, for though parties 
use the term publication, it was a term in this sense, unknown 
to the law. But in Doe v. Burdett, 4 Ad. & El. 1, decided in 
1835, Lord Chief Justice Denman, referring to this case, and to 
the opinion thus expressed by Chief Justice Gibbs, took par- 
ticular pains to guard against any inference that he meant to be 
taken to acquiesce in the correctness of the opinion. 

Some elementary writers on the subject, in England, of high 
authority, assume that publication of some kind is essential, ac- 
cording to the cases under the 22 Car. II. Among others, Mr. 
Cruise, tit. Devise, 38, c. 5, sec. 43, and Powell, 1 Jarman's 
Powell, 90. It was, doubtless, this contrariety of opinion, and 
uncertainty upon so important a subject of the law, that led to 
the act of 1 Victoria, c. 20, in 1837, by which any other proof 
of publication is dispensed with, except what arises from the act 
of signing, or acknowledging the instrument in the presence of 
the witnesses; and which had previously induced the legislature 
of this state, in 1830, while revising the law, to declare with 
equal explicitness the necessity of publication to give validity 
to the will. Both statutes were intended to settle the law, 
which is, undoubtedly, of vastly more importance than that it 
should be settled in favor of one or the other of the conflicting 

1. Jackion t. Vickory; S. C, ID Am. Dee. 622. 

1841.] Bemsen V, Brinckerhoff. 253 

opinions. Ours followed the lead of those which maintained 
that some sort of publication was necessaiy; while the English 
statute has dispensed with it. 

Nothing can be more explicit than the law of 1830, 2 R. S. 
7, sec. 40. Four distinct ingredients, as declared, must enter 
into, and together constituting one entire, complex substance, es- 
sential to the complete execution: 1. There must be a signing 
by the testator at the end of the will. 2. The signing must 
take place in the presence of each of the witnesses, or be ac- 
knowledged to have been made, in their presence. 3. The tes- 
tator, at the time of signing or acknowledging the writing, shall 
declare it to be his last will; and 4. There must be two wit- 
nessess. Now, it is obvious, that eveiy one of these four requi- 
sites, in contemplation of the statute, is to be regarded as 
essential as another; that there must be a concurrence of all to 
give validity to the act, and that the omission of any is fatal. 
The third subdivision was intended as a statutory declaration of 
what is* understood, in technical language, to be a publication; 
it is found in juxtaposition with the admitted requisites of sign- 
ing, and witnesses; and can no more be dispensed with in pass- 
ing upon the validity of an execution, as being in conformity 
with the law, than either of these. It prescribes, in general 
terms, what shall am^ount to publication. The testator must 
not only declare the instrument to be his vnll, but he must so 
declare at the time of signing or acknowledging — ^which act, by 
the previous clause, is to be done in the presence of the wit- 
nesses. Such declaration must, therefore, be made in their 

I agree that no form of words vnll be necessaiy; that the leg- 
islature only meant there should be some communication to the 
witnesses indicating that the testator intended to give effect to 
the paper as his will. Any communication of this idea, or to 
this effect, will meet the object of the statute. It would be un- 
wise, if not unsafe, to speculate upon the precise mode of com- 
munication; as every case must depend upon its own particular 
circumstances. The statute itself is plain, and it is to be hoped, 
vnll be obeyed in a way to leave little or no room for construc- 
tion. When we come to that, the only sure guide for the courfcs 
will be to look at the substance, sense, and object of the law, 
and with the aid of these lights, endeavor to ascertain if there 
has been a substantial compliance. I agree, also, that the mere 
want of recollection of the witnesses, that the testator indicated 
the instrument to be his will, after signing the attestation clause. 

25^ ' Remsen V, Brinckekhoff. [New York, 

ought not to be evidence per se of non-compliance with the stat- 
ute. After this, there should be something like alBSrmatiTe proof 
of the want of publication. 

But whatever may be the mode that may hereafter be approved^ 
by which the testator may indicate that the instrument the wit- 
nesses are requested to subscribe, as such, is intended as his 
will, it is entirely clear nothing to that effect appears, directly 
or indirectly, from the testimony in the case before us. Not one 
word, or sign, or even act, passed within the hearing or presence 
of the witnesses at the time of the execution, tending to this 
effect. The testimony presents the bald case of an execution 
according to the forms of the old law, without at the time, ad* 
verting to the new provision. The instrument in question, can 
not, therefore, be upheld without a virtual repeal of the statute; 
and though I may not admire the wisdom of the change, but 
have preferred the solemnities, as I think, heretofore understood 
in this state, and as have been settled by the recent act in Eng- 
land, we shall unquestionably, best consult our duty, as well as 
the interest of all hereafter concerned in testamentary disposi- 
tions, by giving full force and effect to the statute, fixing thereby 
a well-known and permanent rule for their guide. I shall there- 
fore vote to a£Sim the decree of the court below. 

By Yebflanck, Senator. The able counsel for the respondents^ 
in the course of his argument, assumed and argued from a 
speculative principle, from which I can not refrain from ex- 
pressing my dissent. He maintained with Blackstone and 
Paley, that the right of controlling the disposition of property, 
by will or devise^ after death, is entirely the creation of muni- 
cipal law, directed by considerations of policy and general ex- 
pediency; and denied it to be in any sense a natural right, 
merely controlled and modified by positive regulations. This 
view of the origin of the right necessarily leads to a more strict 
exaction of the terms imposed by law upon the execution of 
testamentary dispositions, since on this theory the right itself 
rests wholly upon a previous literal compliance with the express 
requisitions of law. To me on the contrary it seems clear, in 
spite of high legal and ethical authority, that the right of giv- 
ing to others, what has been formed or rendered valuable by 
our own labor, or purchased from or bestowed by those whose 
labor has given it value, must last to the very moment of death. 
Thus spake the voice of nature in the earliest patriarchal times, 
and so it still speaks in the rudest nations; whilst the most cul* 
tivated legal reason concurs in the same judgment, and pro- 

1841.] Behsen V, Brinckebhoff. 256 

nounoes with Mansfield, that '^ the power of willing naturally fol- 
lows the right of property:" Wyndhafn y. Chetwynd^ 1 Burr. 414. 
Why has not he who has the right to give to whom he pleases, 
throughout all the rest of his life, the same right at his last 
hour, or in anticipation of his last hour? The legal right to 
bequeath personal property has been acknowledged and exer- 
cised from the most remote antiquity, and in all nations. That 
of devising real estate was restricted in some countries upon 
ayowed or obvious grounds of public policy, peculiar to their 
own institutions. It was so by our ancient common law, for 
leasons of feudal policy, the very same that forbade alienation 
by deed, or the sale of a man's own land during his life. When 
therefore our statute law enacted that all persons (with certain 
named exceptions) might devise or bequeath real or personal 
property, the legislature did in that respect precisely what had 
been done as to the right of selling land when it was enacted 
that ''any person capable of holding land might also convey 
it." In both cases the common law restriction of natural right 
was repealed, whilst for the purposes of security and justice 
various formalities were made necessary to the execution and 
proof of deeds and wills as essential to tiieir evidence and proof 
of authenticity; for this natural right, like all other natural 
rights exercised in human society, can be regulated and modi- 
fied by law for the common good. It may be limited, restrained, 
regulated by positive enactment. It is upon this principle of 
original right, prior to any statute, that courts have always 
rightiy looked to the intent of the testator and favored its exe- 
cution. But if that right existed only by means of law, in- 
tention would be nothing; the right would not exist till the 
requisitions of law conferring it had been literally complied 
with. This distinction is admirably summed up by Dr. John- 
son, in a very remarkable example of his logical talent, a dis- 
cussion of certain points of Scotch law, for the use of his 
admiring biographer. '* All possessions are by natural right 
wholly in the power of the present owner, and may be sold, 
given, or bequeathed, absolutely or conditionally, as judgment 
shall direct or passion incite. But natural right would avail 
little without the protection of law, and the primary notion of 
law is restraint in the exercise of natural right. A man there- 
fore in society is not fully master of what he calls his own, but 
he still retains all the power which law does not take from him." 
The question then in eveiy case like the present, is not whether 
the testator has become entitied to devise, by full compliance 

256 Remsen u Bbinckebhofp. [New York, 

with the letter of the law, but whether there has been such a 
neglect of the legal requireftients enacted to guard against fraud, 
as to make the will inoperative, as an evidence of intention, and 
consequently to leave the properly to be governed by the gene- 
ral laws of descent or distribution. 

The practical results to which these opposing views of an ap- 
parently theoretical principle may often lead, will, I trust, ex- 
cuse this digression upon a doctrine much insisted upon in the 
argument; and although it is not immediately necessaiy to sup- 
port my own conclusions in the present case, I think it may be 
of much importance in the decision of some other of th^ 
numerous cases of litigated wills upon which we are soon to 
pass. Upon the principles just stated, I regard the require- 
ments of our statute as to the execution and proof of wills as 
being merely the prescribed rules for the evidence, pronounced 
by law to be indispensably necessaiy to prove the disposing 
mind and will of the testator, and the authenticity of the testa- 
ment; both of these being subjects peculiarly open to imposi- 
tion, to artifice and error. The law, therefore, prescribes that 
'' every last will and testament shall be executed and attested 
in the following manner: 1. It shall be subscribed by the tes- 
tator at the end of the will; 2. Such subscription shall be made 
by the testator in the presence of each of the attesting wit- 
nesses, or shall be acknowledged by him to have been so made 
to each of the witnesses; 3. The testator, at the time of mak- 
ing such subscription, or at the time of acknowledging the 
same, shall declare the instrument so subscribed to be his last 
will and testament; 4. There shall be at least two attesting 
witnesses, each of whom shall sign his name as a witness at the 
end of a will at the request of the testator; and 5. The wit- 
nesses shall write opposite their names their respective places of 
residence:" 2 R. S. 64, sec. 40. This last requirement seems, 
however^ not essential to the proof, but is enforced by a penalty 
for neglect. 

Did, then, the testatrix, in the case before us, give the re- 
quired evidence, by declaring the instrument signed and wit- 
nessed to be her last will and testament? This question in- 
volves the consideration of two points: one of law, the other of 
evidence. What is meant by the declaration required? Unless 
we resort to that artificial system of interpretation, by which 
any words may be made to mean anything, the word " declare" 
will be always found to signify distinctly, " to make known, to 
assert to others, to show forth;" and this in any manner, either 

1841.] Bemsen v. Brinckebhoff. 257 

by words or by acts, in writmg, or by signs. Thus, in our 
English Bible, we read: ''Declare ye among ihe heathen, pub- 
lish, conceal not;** an example at once and an explanation; the 
same idea being enforced and illustrated after the usage of the 
Hebrew parallelisms, in other words. So again of declaration 
by signs or other indications, it is said: '* Te are manifestly de- 
clared to be the epistle of Gk>d." It is useless to multiply ex- 
amples, as all usage shows that '' to declare" to a witness that 
the instrument subscribed was the testator's will, must mean 
^' to make it at the time distinctly known to him by some asser- 
tion, or by clear assent in words or signs." 

The history of this branch of the law, shows that the subject 
of positive external declaration must have been intended to be 
legislated upon in our revision of the statutes. The long series 
of decided cases upon the perpetually arising question, how far 
proof of the testator's knowledge that the paper signed by him 
was a will, was or was not sufiElcient without farther publication, 
proves incontestably that the minds of the revisers and of the 
revising legislature were called to the subject and all its dis- 
tinctions and difficulties. Eminent judges (as Lord Hardwicke 
in Ross V. Ewen, 3 Atk. 161) had held that publication was 
essential to the execution of a will; and that " tixe mere written 
declaration in the instrument that it was a will was not suffi* 
cient;" whilst in other and later decisions, here and in England, 
it has been held with Lord Mansfield that '' the witnesses need 
not know the contents, need not see the testator sign, that it 
was sufficient if he acknowledged his signature, for he may 
deliver it as a deed:" Wyndham v. Chettoynd, 1 Burr. 421. 

The signing of papers purporting to be wills by persons near 
death, supposing that they signed some other instrument, was a 
danger such as demanded consideration whether it might not be 
excluded by positive legislation. I accordingly agree with the 
chancellor, that considering the explicit language of the statute 
in reference to the doubts under the former statutes, and in con- 
nection with the fact, that the legislature deliberately changed 
the language of those former acts, there can be no reasonable 
doubt that the law-makers meant to require an absolute publica- 
tion at the time of the signing or acknowledgment. This legal 
and historical external evidence of the legislative intent cor- 
responds with and supports the natural and obvious interpreta- 
tion of the statute itself. When, therefore, it was determined 
that such a declaration should be made essential to the due 
proof of wills, as the necessaiy evidence of the testator's real 

Ax. Dko. Vol. XXXVH— 17 

258 Reiisen u Brinckerhopp. [New York, 

intent, it was expressly enacted that this declaration should 
be made to each attesting witness at the time of execution or 
acknowledgment. How, then, can this positiye requirement be 
satisfied, except by the testator personally making the fact of 
his own understuiding and intention known to the witnesses 
at the time by such express words or signs as could leave no 
doubt in their minds ? This provision is just as imperatiye as 
that requiring two witnesses to the will, though otherwise a sin- 
gle one might ordinarily be sufficient. They are both of them 
strict rules, prescribed by precautionary policy for the govern- 
ment of those who alone can give the legal effect to the testa- 

Here the evidence shows conclusively that the testatrix made 
no verbal declaration to the witnesses, did not cause them to 
read any written declaration, nor in any other way render it 
clear that she might not have thought the instrument signed 
and acknowledged was a deed or lease instead of a will. There 
was at the end of the instrument an attestation clause, setting 
forth in the customary form, that the testatrix " acknowledged 
to each witness that she subscribed the same and declared it to 
have becB her last will and testament." This, if the witnesses 
had been asked to read it by the testatrix, or in her hearing, 
would have been a silent but clear declaration. But it was not 
read by them. The appellant's counsel maintained, that know- 
ing the contents of the will and the concluding attesting clause, 
the testatrix, when she acknowledged her signature '' for the 
purposes therein mentioned," made the declaration her own, as 
much as if she had distinctly repeated it; so that she virtually 
declared her signing to be for the purpose of authenticating her 
last will and testament. This might tend to show her intent, 
and if she had shown that clause to the witnesses, or had it 
read by another person, and assented to it, that would have 
been a declaration, a making known her will to the witnesses. 
But presuming the written attestation to have been correctly 
understood by the old lady, it was in fact merely a declaration, 
written to be made known . thereafter to others, and not one 
made at the time to the witnesses. 

With respect io the evidence necessary to prove a declaration , 
I do not doubt that the proved or acknowledged signatures of wit- 
nesses to a will, bearing above their names an attestation of the 
required declaration, must be good presumptive evidence of an 
actual declaration, and sufficient to prove the will if not refuted. 
Such would, of necessity, be the case upon the absence or death 

1841.] Remsen u Brinceebhoff. 259 

of BubBoribiiig mtnesses, and the proof of their handwriting by 
others, according to the statate. But in every case the dear 
probability must always be, that the witnesses would not have 
signed the attestation of due publication, had it not agreed with 
the fact, so that this must be the legal presumption until ex- 
pressly contradicted. The mere absence of additional proof 
would not negative this presumption. Here, however, we have 
the testimony of the subscribing withesses themselves, direct and 
positive, that they did not read this declaratory clause, and that 
nothing passed that could indicate any intent to inform them 
that they were witnessing a will, and not a deed or lease. The 
circumstance of the testatrix having directed the addition of the 
witnesses' residence to their names, tends to show her own knowl- 
edge of the character of the instrument (though not conclusively), 
but proves nothing as to any design of thus indirectly informing 
others that this was her will, since neither she nor they might 
know that this was the peculiar mode required by law for the 
attestation of wills. 

In the absence of adverse testimony, the strong presumption of 
the truth of the written attestation being correct, when the signa- 
tures of the witnesses were acknowledged or proved, would estab- 
lish the will. But that presumption is not like that in favor of a 
written contract binding the parties signing it, and shutting out 
contradictory parol testimony. It is, in itself, proof of no higher 
order than parol testimony, and as such, is subject to explana- 
tion or refutation, as much as receipts, certificates of the proof 
of deeds, and similar written documents, which are in them- 
selves prima faciey satisfactory proof: 1 R. S. 759. 

This, therefore, is incontestably a case where the open evidence 
of knowledge and intent, demanded by our law, in order to ex- 
clude the possibility of delusion or deception, and to authenti- 
cate wills, has not been furnished. The will has, therefore, not 
been proved according to law, any more than if it had but a 
single witness; and the estate must pass under the general laws of 
descent and distribution. I place my opinion exclusively upon 
this ground. The intimation of actual deception, made in argu- 
ment and countenanced in the chancellor's opinion, is not to my 
understanding, supported by proof or probability sufficient to 
authorize the impeachment of the witnesses or the legatees. 
The naked fact of a testatrix preferring those relations or de- 
scendants with whom she resides, to others at a distance, rather 
tends to support the will than to invalidate it; and at any rate 
ought not to expose any one to the imputation of criminal aiii« 

260 McLaren r. Watson's ExECuroRa [New York, 

fioe. The only effect of this part of the evidence on my mind, 
was to show the possibility of such a deception, and thus to 
support the policy of our legislation and strengthen the reasons 
for its strict judicial application. 

On the question being put, Shall this decree be reyersed? all 
the members of the court present at the argument of the case an- 
swered in the negative. Whereupon the decree of the chancellor 
was a£Bnned. 

POBUOATION OF WiLL, Necbssitt akd Suvfioikmct OF: SeeSwett T. Board* 
man, 2 Am. Dec. 16; SmaU v. SmaU, 16 Id. 253; Higdan's Will, 22 Id. S4; 
Dewey v. Dewey, 35 Id. 367. See also the note to GtUhrie v. Oioen, 36 Id. 316. 
To the point that any oommanication, by words or otherwise, by the testator 
to the witnesses to a will indicating an Intention to give effect to the paper as 
a will, is a sufficient publication, the principal case is cited in Doe y. Bue, 2 
Barb. 203; Seguine v. Segnine, Id. 393; WkUbeck v. PaOereon, 10 Id. 611; 
Torry y. Botoen, 15 Id. 305; Nipper v. Oroeebeck, 22 Id. 671; Simmone y. 
JSimmone, 26 Id. 77; Trustees v. Calhoun, 38 Id. 160; Thompson v. LeasietU, 
3 Han, 395; S. C, 6 F. & C. 80; Gilbert v. Knox, 52 N. Y. 130; Thompson y. 
Stevens, 62 Id. 635; Vcm Hooser y. Van Hooser, 1 Redf. 368; Brown y. De 
SMing, 4 Sandf. 16. 

Merk Want of Recollection or Witnesses to a will is not fatal where it 
is properly signed and attested and there is other evidence to show that at 
the time the testator called the paper his will and requested the witnesses to 
attest it: Dewey v. Dewey, 35 Am. Deo. 367. The doctrine laid down by the 
chief justice in the principal case to the effect that if the attestation clause 
is in proper form, and shows publication and other requisites to due ezecn- 
tion, the will is not invalid although the witnesses have forgotten the &ots, is 
approved in Lewis y. Lewis, 13 Barb. 26; S. C, in court of appeals, UN. Y. 
224; Cheeney v. Arnold, 18 Barb. 438; Weir v. lUzgerald, 2 Bradf. 73; Von 
Bqffman v. Ward, 4 Eedf. 260; Chrant y. Grant, 1 Sandf. Ch. 240; Brown y. 
Clark, 77 N. Y. 372. 

BxEOUTiON AND ATTESTATION OF WiLLS Qeneballt: See Dewey y. Dewey, 
35 Am. Dec. 367, and note citing other cases in this series. See also the note 
to Guthrie v. Oioen, 36 Id. 316. The principal case is the leading New York 
decision as to what constitutes due execution and attestation of a will under 
the statutes of that state. It is cited as to what is a sufficient compliance 
with the requisites of the statute in Heady's Will, 15 Abb. Pr. N. S. 218; 
BuHer v. Benson, 1 Barb. 530; Morris v. Kniffin, 37 Id. 340, 341; Chc^ffee v. 
Baptist etc. Convention, 10 Paige Gh. 92; Bobinson y. Smith, 13 Abb. Pr. 363; 
Baskin v. Baskin, 36 N. Y. 421. 

MoLaben V. Watson's Exeoutors. 

[36 WSHDBXX, 425.] 

Td Make Guarantt Negotiable as Part of Note to which it relates, it 
must be on the note itself, or annexed to it, in the nature of un allonge, 

Obneral Guabantt of Negotiable Note by Separate and Distinct 
Instrument, containing no words of negotiability, is not negotiable, and 
can not be sued on by an assignee of the note and guaranty, in his own 

1841.] McLaben v. Watson's Exegxjtobs. 261 

Ebbob from the supieme court in an action of assmnpeit on a 
goaniniy executed by the defendants' testator, the nature of 
which is stated in the opinion of the chancellor, the plaintiff 
being an assignee of the guaranty and the note to which it re- 
ferred. Plea, non aasumpsii. The principal defense ^^as that 
the guaraniy was not negotiable, and that the plaintiff, therefore, 
could not sue thereon. Another defense was that the note and 
guaraniy were taken by plaintiff's assignor, one Frye, on a loan 
of money made in consideration of the note and guaranty being 
put into his hands for collection in yiolation of the act of 1818, 
the said Frye being a practicing attorney, and that therefore the 
said note and guaranty were void in the plaintiff's hands. Ver- 
dict and judgment for the defendant, and the plaintiff brought 
error. The action was originally brought against the defend- 
ants' testator in person, but upon his death after the writ of 
error was sued out, his executors were substituted as defendants 
in error. 

TT. Kent, for the plaintiff in error. 

(7. (y Connor^ for the defendants in error. 

By Walwobih, Chancellor. The testator in this case, by a sepa- 
rate and distinct instrument, which contained no words of nego- 
tiability, and was not indorsed or written upon the note, guaran- 
teed the payment of a note at sixty days, drawn by W. A. 
Blackney and E. C. Blackney, payable to the order of W. Wat- 
son of New Milford, W. Watson of Pearl street, and D. S. 
Tuthill, for three hundred dollars: which guaranty, as the 
plaintiff alleges, was executed for the purpose of enabling one 
of the indorsers of the note to raise money thereon from D. M. 
Frye. Frye, who held the note and guaranty when the note be- 
came due and payable, or rather the guaranty and a note not 
correctly described in such guaranty, finding that the validity 
of his title to the note would be disputed, transferred the note 
and the guaranty to the plaintiff McLaren, who sued the per- 
sonal representatives of the guarantor, in his own name, to en- 
able him to use Frye as a witness to disprove the defense which 
it was anticipated would be set up. 

Several questions were raised upon the argument, which I 
have not thought necessary to notice, as I am perfectly well sat- 
isfied that the objection that this separate guaranty was not ne- 
gotiable, so as to authorize the assignee to bring a suit thereon 
in his own name, is well taken. A guaranty indorsed upon a 
negotiable note, whereby the guarantor agrees with the holder 

262 McLaren v. Watson's Executobs. [New York, 

of the note that he will be answerable that the note shall be paid 
to h\m or to his order, or the bearer thereof, when it becomes 
due, is probably negotiable by the transfer of the note upon 
which it is written; for it is in fact a special indorsement of the 
note, or more properly a negotiable note in itself. But to make 
a goaranty negotiable as a part of the note to which it rehites, 
it must be on the note itself, or at least it must be annexed to 
it: in the nature of un allonge or eking out of the paper upon 
which 4he note is written. 

There is a mercantile guaranty, recognized by the codes of 
commerce, both of France and Spain, called an aval^ by which 
the payment of a bill of exchange may be guaranteed. When 
the form of the aval is such that it can operate as a general in- 
dorsement, it will pass to any subsequent indorsee or holder of 
the bill, in the same manner as if it was an indorsement on the 
bill itself; but when it is restricted in its terms, as in the case of 
an indorsement filled up without words of negotiabilily, it can 
only be sued by the person to whom it is given: Code of Com. 
of France, Bod. Transl., B. 1, art 142; Code of Com. of Spain, 
in French, by Foucher, p. 165, tit. 1, sec. 6, arts. 477, 478. But 
to make the guarantor liable in those cases the same protests 
and notices are necessary as in the case of a real indorser: Cri- 
▼elli's Diet. Du Droit, tit. Aval. That species of negotiable 
mercantile guaranty, is not even co-extensive with those coun- 
tries where the civil law prevails; for in the case of GooUty v. 
LawrefncCy 4 Martin, 640, the supreme court of Louisiana held 
that a guaranty of that nature was not known to the laws 
of that state, but must be governed by the rules of other spe- 
cial contracts. See also, 3 llartin (N. B.) 659;' 10 La. 874.' 
And Mr. Bell, the distinguished commentator on the com- 
mercial law of Scotland, where the civil law also prevails, dis- 
tinctly expresses the opinion that the separate guaranty of a bill 
or note is not negotiable so as to authorize a subsequent holder 
to sue on it in his own name: 1 Bell's Comm. on Com. Law of 
Scotland, 876. 

There is nothing in the particular drcumstanoes of this case» 
which can justify the court in overturning the established prin- 
ciples of law relative to the negotiability of written instruments, 
for the purpose of enabling the real party to the litigation to sell 
his interest to a third person, and to become a witness to sup- 
port the claim. And as I have no doubt as to the correctness ol 

1* vhtUtttff T* rfPff. m» aMVflft T. vCfWII. 

1841.] McLaren v. Watson's Executors. 2eor 

tiie decision of the court below, upon the question 1 have thus 
examined, 1 shall vote to affirm the judgment. 

Yebplakce, Senator, delivered an opinion in favor of reversing 
the judgment of the supreme court. The chief points relied on 
by him to sustain the action are given in the following K^'n(>psis: 

1. The taking of the note and guaranty by Frye was not in 
violation of the act of 1818, although Frye was a practicing at- 
torney, because it came within the exception in that act in favor 
of paper taken '' in payment of a debt antecedently contracted," 
or, in part at least, as collateral security for such a debt, for, as 
appeared from Frye's testimony, to which the verdict hIiows that 
the juiy gave credit, there was a prior debt of one hundretl dol- 
lars and a new loan of two hundred dollars; for all of which the 
note and guaranty were taken as collateral security, there being 
an express understanding and stipulation at the time that the 
borrower ytza to have the right to pay the whole amount and 
take up the note before it became due and receive back his secu- 
rity. Such an agreement was wholly inconsistent with the idea 
of an absolute purchase of the note and guaranty, or of a loan 
made in consideration of, or as inducement for placing the note 
in Frye's hands for collection, within the purview of the act re- 
ferred to. 

2. The principal question, however, is as to whether or not 
the guaranty is of such a nature that the plaintiff, as assignee, 
can sue upon it in his own name. The guaranty is general in its 
terms, not being a stipulation with any person named. The 
supreme court intimate an opinion that if the guaranty had been 
written on the note it might have been treated as a mere indorse- 
ment by striking out all but the name of the guarantor, but 
that a separate guaranty did not, like an indorsement, run with 
the note, but must be limited to the immediate parties, like other 
choses in action. But such a distinction is expressly contrary 
to VAmoreaux v. HeurU, 6 Wend. 807, where it was held that an 
indorsed guaranty could not be treated as a mere indorsement^ 
but was a special contract with the first taker just the same as if 
written on a separate paper. 

What is the real undertaking or promise of a guarantor? A 
guaranty is essentially a warranty of some act or debt of an* 
other, an undertaking that another shall perform his contract, 
the latter at the same time remaining liable for his own default. 
The warranty may be either of a prior or of a future debt or 
contract. If the former, there must be some good consideration 
received by the guarantor; if the latter, the giving of credit to 

264 McLaren v. Watsox's Execxjtors. [New York, 

the person whose debt or contract is guaranteed upon the faith 
of the engagement of secondaiy liabiliiy held out by the guar- 
antor is sufficient consideration of itself to support the guar- 
anty, upon the familiar principle that consideration for a promise 
may consist either in actual benefit to the promisor, or in some 
prejudice, suspension of right, or possibility of loss to the partj 
accepting the promise: 3 Burr, 1663;^ 1 Wms. Saunders, 211,. 
note 2; Jonea v. Ashbumham, 4 East, 455; 12 Wend. 381.' 

A contract of guaranty may, like other contracts, be made 
with the person specifically named to be answerable for another, 
and if accepted by the person to whom it is addressed is noi 
negotiable, but can be enforced only by that person. On the 
other hand, it may be a general guaraniy without naming any 
particular person to whom it is addressed. In the case of other 
contracts, as where an offer is made by public advertisement to 
pay a certain price for goods of a certain kind delivered at a cer- 
tain time and place, a general offer may be made which, when 
accepted, becomes a contract with the person who accepts it: 
Cobham v. Upcott, 5 Yin. Abr. 527, cited in Fell on Guaranties, 
44. The same rule applies to a general offer of guaranty of the 
debts or contracts of another, as is shown by the authorities: 
FhUlipa V. Baleman, 16 East, 356; WaUon y. Dodson, 3 Car. &• 
P. 163; Bradley v. Gary, 3 Greenl, 233." The undertaking of 
guaranty in such case, though general in offer, becomes, when 
accepted, binding between the guarantor and the person acting 
upon the faith of the guaraniy. But such a guaraniy, notwith- 
standing its acceptance, unless made negotiable by statute or by 
the custom of merchants, can be enforced only in the name of the 
direct party to the contract. 

There is a distinction, however, between an ordinary commer- 
cial guaranty, as of a credit for goods purchased, and a guaraniy 
of a negotiable bill or note. In the former case the guaraniy is 
of some specific debt or debts not negotiable in the hands of the 
creditor, and which he can not pass away to another. As the 
primaiy liability, therefore, can go no further than the first par- 
ties, there is no promise by the guarantor of such liability to 
any person giving a subsequent credit. But from the nature of 
negotiable paper it is evident that a general guaraniy of such 
paper is a positive promise or undertaking to become liable, for 
the original promisor's default in its payment, to any person 
who may become the holder of it on the faith of such guaraniy. 
The promise is to subsequent indorsees as well as to the first 

1. Pittaiu T. Fofft MUnp. 2. 8mmam t. g #a w a ii . 8. 8 OiMnl. 934. 

1841.] McLaren v. Watson's Executors. 265 

holder. The general offer of guaranty in such cases is an offer 
of an indefinite number of successiye guaranties. Though the 
guaraniy may not be negotiable in itself, it is a collateral promise 
to each person who may in turn give credit to the note so guar- 
anteed; but no one can have a ground of action on the gfuaranly 
who, after having become a party to the contract, parts with the 
note. The promise of the guarantor is in effect as follows: " I 
promise to any person who may, upon the faith of this promise, 
become, by purchase, discount, or otherwise, the bona fde 
holder of tiiis note, to pay the same in case of its not being duly 
paid when at maturity." 

The consideration of such guaraniy may be one of direct ben- 
efit to the guarantor, or it may be merely the value of the note 
paid at his request and on his credit to the person for whose 
benefit the note was made. The latter was the case in this in- 
stance. It is not necessary to the validity of such a guaranty 
that the consideration should be expressed in it as required by 
the statute, in other cases of guaranty, because the promise is 
not collateral but independent. It is a new contract upon 
which the plaintiff in the present case took the note, and his 
exposure to loss is sufiGlcient consideration to support it. The 
only authority really opposed to the view here taken is L'Amo- 
reaux v. Hewii^ before cited. Other cases apparently adverse 
are those where the guaranty is not general, but is a special 
agreement with a person or persons specifically mentioned, as 
in BarringUm'a case, 2 Sch. & Lef. 113. An analogous case to 
the present would be one where a well-known capitalist, in con- 
sideration of ample security and a commission, should by pub- 
lic advertisement guaranty the bills of a bank of doubtful credit. 
Such a guaranty would be binding when accepted, as was said 
in Phillips v. BcUemariy 16 East, 355, and would go with each 
bill of the bank as it passed from hand to hand. 

The opinion here expressed is supported by another view of 
the law, though it is not rested upon it: The '' custom of mer- 
chants" as to bills of exchange is not merely the local usage of 
England; it is the usage of the whole commercial world. 
It passed over from the continent to England with the 
extension of commerce. Hence continental writers on this 
subject, such as Pothier, are cited and recognized as au- 
thorities in England. Though the practice of general prof- 
fers or undertakings of guaranty of negotiable paper, in- 
tended to accompany the paper, is not very common in Eng- 

1. w«ad. 807. 

266 McLaren u Watson's Execittors. [New York, 

land, it is well known on the continent of Europe, 
guaranty, called by the French aval, and by the German civilianfl 
avalltim, is given either by indorsement on the bill or by a ae- 
parate writing. By the French code the guarantor is bound in 
the same way as the drawer and indorser: Code de Gonunerce» 
liv. 1, tit. 8, sees. 141, 142. The same law exists in Belgium, 
Holland, generally in Italy, and in Germany. Pothier sayi 
that the guaranty may be either special or general, the latter 
giving the holder the same right of action that any party may 
have against the drawer. The strict form, he says, is to write 
it on the bill itself, but it is commonly made by a separate 
writing: Pothier, Gontrai da Change, pt. 2, sec. 50. The same 
usage and legal rule prevail in Scotland: 1 Bell's Com. 376. 
This custom has probably passed over to New York from our 
early Dutch colonists, or hrom Scotch and French merchants 
settled among us. At any rate, a custom of general and inde- 
finite guaranty of commercial paper, either on the paper itself 
or on a paper referring to it, is well known among the business 
men of New York, and it is with the understanding that the 
guaranty passes with the note. 

As to one other point in the argument it is sufficient to say, 
that the guarantor does not stand in the place of an indorser, 
and that demand and notice are not necessary to charge the for- 
mer. The guarantor's undertaking is not conditional, but ab- 
solute, that the maker shall pay the note when due, or that the 
guarantor will pay it: Alien v. BigtUmere, 20 Johns. 365 [11 Am. 
Dec. 288]. An absolute guaranty waives demand and notice of 
non-payment: BreedY, EiUhauMe, 7 Conn. 628; 2Eent'sCom. 124. 

I have seen a case decided in the supreme court since this 
opinion was prepared, which seems to me to support the opin- 
ion at which I have arrived in this case: KUchell v. Bums, 24 
Wend. 456. That was a case of guaranty on a note payable to 
S. or bearer, and the guaranty was of payment to S. or bearer. 
The guitraniy was held good in the hands of a subsequent 
holder, and negotiable of itself, not as a mere indorsement, 
striking out the guaranty. There can be no difference between 
a promise of guaranty to the future bearer of a note payable to 
bearer, and the same promise to the future holder of a note pay- 
able to order. 

An affirmance of the decision of the supreme court in thia 
case would leave the law unsettled and contradictory, while a 
reversal of that decision, and the establishment of a general rule 
that a guaranty of negotiable paper in any form may be en- 

1841.] McLaren u Watson's Exegutobs. 267 

f oroed by any one taking the paper on the faith of it, will aim- 
plify and.harmonize the law. 

By Bbadish, President of the Senate. Although several points 
of minor importance have been made in the progress of this case, 
the main question presented for the consideration and decision 
of this court, is whether a separate guaranty of the payment of a 
promissoiy note can be made so negotiable as to run along with 
the note, and be available, in his own name, in the hands of any 
holder of the note, other than the party to whom the guaranty 
was originally given? This question, although of considerable 
general importance, is of peculiar interest to a commercial com- 
munity. The transfer, from hand to hand, of negotiable paper, 
with their various collateral guaranties, enters so constantly 
into the hourly transactions of commerce, that it is of great im- 
portance that the law determining the precise character and 
effect of these, should be well settled and well known. Indeed, 
in no department of human a£Eair8 are fixedness, uniformity, 
and general knowledge of the laws so important and necessary, 
as in the various operations of trade and commerce. Merchants 
contract with reference to the laws. Their rights and their 
obligations are determined by them. It is all important, there- 
fore, that those laws should be fixed and known. This is not 
more essential to the safety than it is to the prosperity of com- 
merce; and should be kept steadily in view in the legislation 
and judicial proceedings of eveiy enlightened government that 
would foster and protect its foreign and inland trade. 

In all ages of the world it has been the policy of all civilized 
nations to treat commerce with great favor and regard. Its ad- 
vancement and protection have been the object of public treaties; 
while its usages have constituted no inconsiderable part of mu- 
nicipal and international law. So great has been the deference 
paid to the custom of merchants, that it has not only been re- 
ceived as law in itself, but has even been permitted to modify 
the common law of the land. In England so early as the reign 
of James I., Chief Justice Hobart declared the custom of mer- 
chants to be a part of the common law, of which the judges 
ought to take notice: Vanheath v. Ihimer, Winch. 24; and Lord 
Ck>ke, in his 2 Institutes, p. 404, speaking of the Lex Mercaioria^ 
says, ** which, as hath been said, is part of the laws of this 

It is a general rule of the common law, that choses in action 
are not negotiable. But so early as the fourteenth century, in 
conformity with the custom of merchants, and for the benefit of 

268 McLaren u Watson's Executobs. [New York, 

trade, an exception was made to this general rule in &Tor of for- 
eign bills of exchange; and in the seventeenth centuiy a similar 
exception was made in favor of inland bills. Promissory notes, 
from the same in^uence and with the same view, to the encour- 
agement of trade, came very soon to enjoy the same favor, and 
be invested with the same general characteristics. They contin- 
ued to be so considered and so treated until their character was 
drawn in question by Lord Chief Justice Holt, in the case of 
Gl&rk V. MaHin, in 1702: .2 Ld. Raym. 757, and 1 Salk. 129. He 
denied that a promissory note, by the custom of merchants, had 
the character of an inland bill of exchange; or that an action 
of debt could be maintained upon it as such. The several cases 
of Potter V. Pearson^ 2 Ld. Raym. 759; Burton v. Sauier, Id. 774; 
WUliamB V. Cutting^ Id. 825; and BvJler v. CripSy in 1703, 6 Mod. 
29, followed that of Clerk v. Martin^ and adopted its doctrine. 
In the latter case, however, the court adjourned without coming 
to any decision. What, therefore, would have been its judg- 
ment, in that case, was at the time considered doubtful. These 
doubts as to what was the law upon this subject, whether orig- 
inating in Lord Holt's excited controversy with the goldsmiths 
of Lombard street, or in calm and deliberate judgment, is im- 
material, they led to the enactment of the statute of 3 and 4 
Ann. Without here stopping to consider the much agitated 
question, whether this statute was the enactment of new law, or 
merely declaratory of that which had before existed, but which 
had been drawn into doubt by recent decisions, it is sufiGicient 
that, so far as regards promissory notes, it was substantially re- 
enacted by the legislature of this state in 1788. It was revised 
and simplified in 1801; and again revised and incorporated in 
the revised statutes of 1830. It has since continued, and is 
now the law of this state. 

The question here arises, whether this guaranty, written on a 
separate piece of paper, can be brought within the provisions of 
this statute, so as to make it negotiable and enable the holder of 
the note and guaranty to bring an action on the latter in his 
own name ? It is certain that the guaraniy is not in terms em- 
braced within the statute; and it would, in my judgment, be 
most dangerous to extend the equily of the statute so far as to 
include this case within its tmdefinable limits. Waiving then, 
as before, the question whether the statute be the enactment of 
new, or merely the declaring of the old law; and even admit* 
ting the latter, let us inquire whether that custom of merchants^ 
which, for the benefit of trade, made the promissory note nego- 

1841.] McLaaen v. Watson's ExEcuroRa 269 

tiable, can, for the same purpose, be made to apply, with like 
effect, to the separate guaranty of such promissory note ? It is 
believed that no such custom of merchants has ever existed, or 
does now exist, in this or any other country; and on the con- 
trary, in adopting the doctrine advanced on the part of the 
plaintiff in error in this case, this court would be carrying the 
law on this subject one step beyond the legislation or known 
and acknowledged custom of merchants in any country. It is 
true, that the commercial codes of France and Spain and the 
edicts of some of the German states, do recognize as negotiable 
a separate guaranty of promissory notes and bills of exchange. 
These separate guaranties are called, in the two former coim- 
tries, avaly and in the latter avaUum. But in their character 
and effect, they are to all intents and purposes indorsements. 
They give the same rights and impose the same obligations. To 
charge him who has given the aval or avaUum, the same notice of 
demand and non-payment is necessary. The French code is as 
follows: " Le donneur d'aval est tenu solidairement, et par les 
memes voir que les tireurs et endorseurs, sauf les conventions 
differentes des parties:" Tom. 1, tit. 8, sec. 8, art. 42. The 
Sx)anish code declares: " Si Taval est con9u en termes gene- 
raux, et sans restriction, celui qui le foumit repond du paiement 
de la lettre, de la meme mamiese et dans les memes formes que 
la personne dont il se rend garant:" Sec. 6, art. 478. It will 
thus be perceived that the avaly whether on the note or bill 
itself, or a separate piece of paper, and it may be either, is in 
effect an indorsement, giving the same rights and imposing the 
same and no other obligations; whereas the guaranty, under our 
laws, is a special and absolute contract for the payment of the 
note or bill, waiving the right to notice of demand and non-pay- 
ment, by the maker or acceptor. In adopting the doctrine con- 
tended for, therefore, this court, while it would impose upon 
the guarantor all the obligations of an indorserorone who gives 
an avaly would depi:ive him of the important right to notice, en- 
joyed by the two latter, and often essential to the safety of the 
party entering into such obligations. The court would thus, as 
before remarked, carry the law upon this subject one step be- 
yond the legislation of any country, or any known custom of 
merchants. It would, in short, be new law, and for its estab- 
lishment wotdd require the exercise of legislative rather than of 
judicial power. Hitherto the courts of this state have wisely, 
I think, adhered to the general rule, that to charge a party as an 
indorser of negotiable paper, his name, or the name of his firm, 
must be written upon the paper itself, or un allonge. A sepa- 

270 McLaren v. Watson's Executors. [New York, 

rate guaranty of such paper has been considered only as a 
special contract, not negotiable, and of course available in his 
own name only by the party to whom it was originally given. 

Our courts have recognized as good, indorsements on nego- 
tiable paper in the form of a guaranty and in terms, negotiable, 
being to order or bearer, but on the ground that these were in 
e^ect new bills, and, therefore, valid as such, and not merely as 
guaranties of the original paper so indorsed. This was the 
recent case of Keickell v. Bums, 24 Wend. 45G, and of other 
previous cases. 

It is true our statutes do, as the law did before, authorise a 
separate acceptance of a bill of exchange. If in this provision 
of the statute, and in the interests of commerce, a reason is sup- 
posed to exist equally applicable to a separate indorsement or 
guaranty of the payment of negotiable paper, let the aid of the 
legislature be invoked to give that provision such extension. 
This court has no power to do so, even if it were universally ad* 
mitted to be desirable. What would be wise or desirable law is 
one thing; what is actually the law may be another and a veiy 
different thing. While the former regards exclusively the legis- 
ture, the judiciaiy can be governed only by the ktter. In this 
case, therefore, concurring fully in the judgment of the supreme 
court, and in the satisfactory reasons given for that judgment in 
the opinion of Justice Cowen, I shall vote for an affirmance. 

On the question being put, Shall this judgment be reversed ? 
three members of the court answered in the affirmative, and 
twelve in the negative. Whereupon the judgment of the supreme 
court was affirmed. 

GuARANTT, NsooTiABiLiTT OP. — That a guaranty to a particular penon of 
the collectibility of a negotiable note, indorsed on the note, is a contract be- 
tween the immediate parties to it, is a point to which the principal case is 
cited in Van Derveer v. Wright, 6 Barb. 550. So a guaranty of a bond to ** the 
present owner and holder" is personal, and only the party to whom it is given 
can sue thereon: Smith v. Starr, 4 Hun, 125; S. C, 6 T. & C. 380. So a 
guaranty of a note or bill by a separate instrument is not negotiable: Barlow 
V. Myers, 64 N. Y. 45. But a general guaranty indorsed upon a note paasea 
with it: Cooper v. Dedrlck, 22 Barb. 618; Webster v. Cobb, 17 111. 466. So a 
general guaranty of collectibility indorse^l on a bond: Cody v. Sheldon, 3S 
Barb. 116. In Tinker v. McCauley, 3 Mich. 194, a general guaranty indorsed 
on a note payable to bearer was held not to be negotiable. The principal case 
is cited as authority in all the above-mentioned decisions. It is cited gener- 
ally as to what constitutes a negotiable instrument in Dirckhead v. Brown, 5 
Hill, 643, and Van AUyne v. Van Slyck, 10 Barb. 386. 

That Guaranty on Nsqotiable Note is an Original undertaking upon 
wliich the guarantor is liable as upon a promissory note, is a point to which 
the principal case is cited in Manrow v. Durham. 3 Hill, 586, and EU%$ ▼• 
Brawn, 6 Barb. 298. 

1841.] Lyon v. Jerome. 271 

Lton v. Jerome. 

(96 WmDBLL, 48S.] 

AmrHOBTTY CoinfiDXD to Jitdomknt and DiscssnoN ov Aobnt, whether 
priTate or public, imports personal trust and confidence, and can not be 
subdelegated by such agent. 

duvAL Commi:j8iox£BS CAN NOT DELEGATE to an engineer or other subor* 
dinate the authority conferred upon them by statute to enter upon Unds 
of citizens and take and use their property "as they may think proper** 
in constructing the canal, that authority being discretioiiary in its nature; 
and an engineer entering upon land and taking materials for the con- 
struction of the canal without the express direction of the commissioners 
is liable in trespass. 

Ebbob from the supreme court in an action of trespass for en- 
tering and taking certain stone from the plaintifiTs quarry. The 
defendant justified on the ground that he was chief engineer of 
the Oswego canal, and took the stone to be used in constructing 
the canal under the authority conferred by statute upon the 
canal commissioners. It appeared that the taking was not ex- 
pressly authorized by Mr. Seymour, the commissioner in charge 
of the work; and, although he saw the work as it progressed, 
he testified that he did not know that the stone was taken from 
the plaintifiTs land, but supposed it was taken from land of par- 
ties who had consented thereto, or from state lands, but that he 
woidd have sanctioned the takmg if the engineer had represented 
it to be necessary. Verdict for the plaintiff, a motion for a non- 
suit having been overruled. The defendant moved for a new 
trial which was denied by Denio, J. , the circuit judge, on the 
ground that the authority conferred by statute upon the canal 
commissioners was personal and could not be delegated, and as 
the taking had not been expressly authorized by them or either 
of them, there was no justification, though the taking might have 
been necessary for the construction of the work and though the 
defendant acted in good faith. His honor's reasoning was sub- 
stantially the same as that of the opinions delivered in the court 
of errors. The supreme court, however, granted a new trial, 
15 Wend. 570, and under their decision the circuit judge directed 
a nonsuit, which the supreme court refused to set aside, and the 
plaintiff brought error. 

8. Stevens, for the plaintiff. 

cT*. A. Spencer, for the defendant. 

By Walwobth, Chancellor. In my opinion there should be a 
reversal of the judgment of the supreme court, for the reasons 

272 Lyon v, Jerome. [New York, 

assigned by the circnit judge, on his refosal to grant a new 
trial. If the commissioners had the right to enter upon the 
premises of the plaintiff and take the stone, it does not follow 
that their agents had the same right. Mere executiye or minis- 
terial powers may be subdelegated, but not judicial or discre- 
tionary powers. Here the engineer acted eyen without the 
knowledge of the commissioner, for the reasonable inference 
from the testimony of the latter is, that he did not know that 
the plaintiffs property had been taken. On this ground, there- 
fore, I shall Yote for a reyersal of the judgment of the supreme 

I have serious doubts also as to the constitutionality of the 
acts of the legislature under which the property of the plaintiff 
was taken, no provision having been made whereby the ownei 
of the property might compel the payment of his damages or 
insure the compensation to which he was entitted. By the act 
of 1817, the officers of the state were authorized to enter upon 
the lands of individuals in the prosecution of their duties for 
purposes other than that of taking property. By the act of 1820, 
they may enter upon private property to obtain materials for the 
purposes of repair; but they are not authorized temporarily to 
occupy the lands of individuals, in the constiniction of the pub- 
lic works, and then leave the owners of the property to obtain 
compensation in the best way they can; and yet such was the 
law until a subsequent provision was made in the revised stat- 
utes on the subject. I held in Bloodgood v. The Mohawk and 
Hudson R. R. Company, 18 Wend. 17 [31 Am. Dec. 313], and 
am still of the same opinion, that before the legislature can au- 
thorize the agents of the state, and others, to enter upon and 
occupy, or destroy, or materially injure the private property of 
an individual, except in cases of actual necessity, which will not 
admit of delay, an adequate and certain remedy must be pro- 
vided, whereby the owner of such property may compel the pay- 
ment of his damages or compensation. No such provision hav> 
ing been made in the act of 1817, nor in the act for the con- 
struction of the Oswego canal, I should be inclined on this 
ground also to reverse the judgment in this case. 

By Yebplance, Senator. This case, as argued before us and 
in the court below, turns exclusively upon the single and very 
interesting question of the authority of an inferior officer on our 
public works, to exercise by virtue of an express or implied 
delegation a power vested by statute in the canal commissioners. 
By the act of 1817, relating to the Erie and Champlain canals. 

1841.] Lyon v, Jerome. ' 273 

and ihe subsequent laws, extending its provisions to the con- 
struction of the Oswego canal, it was made ** lawful for the 
canal commissioners and each of them, by themselyes, and by 
any agent or engineer employed by them, to enter upon, take 
possession of, and use all and singular any lands, waters, and 
streams necessary for the prosecution of the improTement, and 
to make all such canals, feeders, locks, etc., as they may think 
proper for making such improyements," etc. Thus a large dis- 
cretionary power is given to enter upon the lands of any citizen 
and to take and use such of his property as may be thought 
proper. The authority is given to the canal commissioners 
jointly or severally, to be exercised in their discretion, through 
any proper agent. 

In all cases of delegated authority, where the delegation indi- 
cates any personal trust or confidence reposed in the agent, and 
especially where such personal trust is implied by making the 
exercise and application of the power subject to tiie judgment 
or discretion of the agent or attorney, the general rule is, that 
these are purely personal authorities, incapable of being again 
delegated to another, unless a special power of substitution be 
added. From an early period of our law, this rule has been 
laid down as to powers given by will or deed to executors, trus- 
tees, and attorneys, to sell lands, make leases, etc. ; and modem 
decisions have extended the principle to the less formal appoint- 
ments of factors, brokers, and other commercial agents. How 
much more strongly then must the reason and policy of the rule 
apply to the delegation of authority by the state, to its high 
public officers, made with the solemniiy of a legislative act ? 
The language of the statute, as well as the nature of the trust 
itself, shows that this is an authoriiy confided to the judgment 
and discretion of the commissioners themselves, for the impar- 
tial discharge of which they are responsible to the state. 

In this instance, as in similar cases of authoriiy to represent 
private individuals, the person thus intrusted may have occasion 
to depend upon scientific or professional advice for the guidance 
of his own judgment. He may even in matters out of the scope 
of his own information, rely entirely upon the authoriiy of his 
adviser or assistant. Yet he is still bound to form a judgment 
for himself, and to assume its responsibility. In this case there 
was no exercise of any judgment or discretion whatever by the 
commissioners; there was merely such a general reliance on the 
supervision and judgment of the engineer, as might amount to 
an implied delegation of authority, had the commissioner been 

AM. Pbo. Vou XXXVII— 18 

274 Lyon v, Jerome. [New Tork» 


aaihorized by law to make such a sabetitation. But, as the cir* 
cult judges before whom the case was tried, well stated it, '* it 
is the judgment of the commissioners, or one of them, which is 
to determine the propriety of the entry, and not that of the 
agents," etc. " Such is the obvious construction of the statute. 
A contrary construction would be unreasonable and extravagant. 
The power conferred is one of the most important character; 
nothing less than taking of the property of a citizen without his 
consent. Yet, by the construction contended for, this is con> 
ferred upon any and every engineer, superintendent, and agent, 
whom the commissioners may employ, down to the chain-bear- 
ers." Judge Denio has, in his opinion on the motion for a new 
trial, fully examined the statutes bearing on this subject: and 
to these views, as well as to those expressed upon the general 
merits of the case, I can add nothing. I fully concur with his 
opinion here, as I have repeatedly done on other occasions whea 
it has been my lot to support the decisions of that able judge ai 
circuit, or as vice-chancellor, against those of higher tribunals. 
I have only to add, that it is of the greatest public importance 
to establish the general rule of agency, that '' delegated author- 
ity can not be delegated again, without special power so to do," 
as governing the official powers, acts, and contracts of our state 
officers. If there be any inconvenience in the strict construc- 
tion of the statutes as to the canal commissioners, who must so 
frequently act upon the advice and authority of engineers, that 
inconvenience can be easily remedied by legislation (as indeed it 
appears to have been partially done as to repairs), which can 
vest the authority to exercise the power of the state in some des- 
ignated subordinate officer, or prescribe the mode in which any 
special power may be delegated. But when we consider what 
large discretionary powers are frequently vested in our state offi- 
cers, and especially in the comptroller, in respect to the great 
pecuniary concerns of the state, its loans, deposits, contracts, 
etc. , we can not but perceive the immense hazards to which they 
will be exposed, if these powers can be exercised so as to bind 
the state by any subdelegation, express or implied, not author- 
ized by the letter of the statute. If we once depart from the 
safe and just rule, established by old authorities and frequent 
decisions in cases of private right, we may hereafter expose great 
public interests to be sacrificed by the acts of clerks, brokers, or 
agents, exercising the authority of our state officers, under some 
loose discretionary delegation, perhaps extended by usage and 
implication. If, imhappily, such a case should hereafter arise^ 

1841.] Lyon v. Jerome. 276 

the assertion and application of the old common law principle^ 
either legislatiyelj or judicially, after having once set it aside, 
might be then hard and inequitable, and would certainly subject 
the state to censure and odium. For this reason, especially as 
it is quite evident that this court agrees with this view of the law 
of the case, I am anxious that our present decision should stand 
as a strong and clear precedent upon this ground alone, imcon- 
nected with any other question which may hereafter leave a doubt 
as to the precise principle settled. 

The chancellor, whilst agreeing that the discretionary power 
is given by statute to the canal conunissioners, and can not be 
delegated to another, has suggested another ground for reversal. 
I understand it to be this: that as the acts which regulated the 
construction of the work, for which the stone was taken and 
the illegal entry made, do not provide for the compensation of 
the owner in such cases, the taking will fall within the prohibi- 
tion of the constitution, declaring that " private property shall 
not be taken for public use without just compensation.'' This 
involves not only the right interpretation of a great constitu- 
tional provision, but also that of two or more legislative acts. 
It may perhaps be doubted, whether the constitutional provision 
intends anything more than to prescribe to the legislature the 
duty of providing for such compensation in some way or other: 
either before granting authority to take private property, or after 
it is granted. It may, on the other hand, be held to require 
that the private right should not be divested, until just compensa- 
tion had been actually made or tendered, so that a mere pro- 
vision by law for obtaining compensation would not be suffi- 
cient. My own strong conviction of the great republican duty 
of supporting private rights against public power, would incline 
me to concur in the opinion expressed by the chancellor. But 
we are not now advised, as a court — scarcely any of us as in- 
dividuals — of the decisions or reasoning of our own state courts, 
bearing on this point; nor of those of the courts of the United 
States, if there be any upon the similar provision in the consti- 
tution of the United States. Neither is it by any means clear, 
that some of the acts in force at the period of the construction 
of the Oswego canal, did not provide sufficient means of com- 
pensation in such cases. The chief justice intimates that a just 
and reasonable construction of those acts would justify the canal 
appraisers in allowing a claim for damages. Neither the consti- 
tutional point, nor that of the interpretation of these statutes, 
were raised at the trial or in the supreme court. They have not 

276 Lyon r. Jeromk [New York, 

been examined in the able and lucid argument of the case be- 
fore us, by eminent counsel, nor have they been presented to us 
on their points, nor have we been furnished with such references 
to the authorities as might enlighten our conclusions. I must, 
therefore, decidedly protest against any judicial expression of 
opinion, which will place our reyersal of the judgment of the 
supreme court upon reasons which haye not been examined nor 
discussed in the argument before us. 

The most learned and venerable of all judicial authorities, has 
giyen an impressive testimony to the neoessity of legal argu- 
ment in cases of doubt and difference, for the guidance of the 
most experienced judges, and has ascribed to it a weight and 
efficacy beyond the reach of unassisted human reason. That 
aid is peculiarly required in our court. When a question has 
been *' eviscerated" (to use the strong expression of a lay mem- 
ber of the appellate court of Great Britain), by the previous 
examination of the courts below; by the selection of the special 
points of appeal; by the collection of authorities, and by the 
arguments of counsel, this court may arrive at the soundest con- 
clusions more slowly indeed, but more surely than the learned' 
tribunals whose decisions, ipade under the overwhelming press 
of business, we are called upon deliberately to review. With- 
out that aid, in some form or degree, we are probably more 
liable to err than other courts. Under this conviction, many of 
us concur in placing our decision of reversal exclusively upon 
the reasons and grounds so fully and ably argued before us. 

By BsADiBH, President of the Senate. This was an action of 
trespass for breaking the plaintiff's dose, and taking and carrying 
away stone from his quarry for the construction of three locks 
on the Oswego canal. The defense was, that Jerome was the 
principal engineer on that work, and as such, was authorized to 
perform the acts complained of as a trespass. This case, there- 
fore, involves the important subject of the powers and liabili- 
ties of public officers, in the discharge of their official duties. 
These, in the present instance are: 1. Either derived from the 
general or special law, applicable to the case; 2. Or result from 
the nature of the office itself. 

The statute of 1834, c. 279, sec. 1, directing the construction 
of the Oswego canal, refers to the third section of that of 1817, 
in relation to the Erie and Champlain canals, for the powers 
and duties of the canal commissioner, and all subordinate 
officers and agents to be employed on the work in question. 
That section gives to the canal commissioner, and, I think, to 

1841.] Lyon v. Jerome. 277 

him exclusiyely} the important judicial power of determining, in 
all cases, the necessity and expediency of appropriating the 
lands or property of individual citizens to the public use, in the 
construction of the work in question. This is an exceedingly 
delicate and important power, and only exists in the state by 
virtue of her right of eminent domain as sovereign. In expressly 
granting this power, a confidence in the grantee of the power 
as to its exercise is implied. It can not, therefore, be delegated. 
It must be exercised* by the grantee in person, and not by proxy 
or substitute. The commissioner can act by others. He must 
judge himself. He only can decide upon the necessity or ex- 
pediency in any case of appropriating private property to pub- 
lic use; but he may employ his subordinate officers or agents to 
carry such decision into effect. Such, I think, is the fair inter- 
pretation as well of the special as of the general law applicable 
to this case; so also are the authorities: See statutes of 1817, c. 
263, sec. 3; statutes of 1820, c. 202, sec. 3; 1 E. S. 220, sees. 
15, IG; Vanderkeyden v. Young, 11 Johns. 150; Rogers and 
Magee v. Bradshaw, 20 Id. 735; Gilbert v. Columbia Turnpike 
Co., 3 Johns. Cas. 107; Jerome v. Boss, 7 Johns. Ch. 315 [11 
Am. Dec. 484]; Wkeelock v. Young and Pratt, 4 Wend. G47. 

From the record it does not appear that Mr. Seymour, the 
canal commissioner, having charge of this public work, had 
directed the appropriatioi^ of the materials in question to the 
public use; or determined thq necessity or propriety of such ap- 
propriation. Nor does it appear that the defendant had any 
authority to make the appropriation in question, derived either 
from any general or special directions of the canal commis- 
sioner to that effect; on the contraiy, it does appear that the 
commissioner expressly directed the stone for the work in ques- 
tion to be taken from the quany belonging to the state. It is 
undoubtedly true, that the engineer supposed that he was com- 
plying with such directions, and that the quarry from which the 
stone in question was taken, did belong to the state. It was 
doubtless a mistake; and, therefore, not a willful trespass. But 
it was still a trespass, for which, when discovered, due amends 
should have been immediately made. 

It only remains to inquire whether any authon'iy to make the 
appropriation of the materials in question, resulted from the 
nature of the office of principal engineer exercised by the de- 
fendant ? This inquiry has been virtually answered already m 
what has been said upon the first point. If that be correct, it 
is conclusive of this point also. The power in question, as well 

278 American Ins. C!o. v. Bryan. [New York. 

as eydij other to be exercised by the public ofBcers and agentb. 
in the constructioii of the Oswego canal, is derived either from 
the general law, or the special statute authorizing that work, or 
from that to which the special statute expressly refers. We 
have already seen that this power, thus derived, is given exclu- 
sively to the canal commissioner, and could only be exercised by 
that officer himself in person. This, if correct, is conclusive of 
the whole case. The engineer possessed no power not derived 
either from the general law or special statute. Neither the one 
nor the other gave him the power in question. Nor is that 
power independent of the general law and the statute either an 
incident of the office of principal engineer, or necessary to the 
exercise of the other unquestionable powers, or the due dis- 
charge of the acknowledged duties of that office. It follows^ 
then, that the defendant did not possess the power in question, 
neither: 1. By the general or special law; or by any directions 
general or special given him by the canal commissioner having 
charge of the work; nor, 2. As an incident of the office of 
principal engineer. It thence follows that the defendant was, 
in this case, a trespasser; and, as such, is liable in damages to the 
plaintiff in this action. 

Upon these grounds, I am of opinion, that the judgment of 
the supreme court is erroneous, and should be reversed with 

On the question being put. Shall this judgment be reversed! 
all the members of the court present, who had heard the argu- 
ment of the cause, answered in the affirmative. Whereupon 
the judgment of the supreme court was reversed. 

Official or Trivate Authokitt Involving Personal Discretion and 
judgment can not be delegated to another by the public or private agent upon 
whom it is conferred: Hicka v. Dorn, 9 Abb. Pr. N. S. 63; S. C, 42 N. Y. 
61; St, Peter v. Deniaon, 58 td. 421 (both of which were cases of an at- 
tempted sttbdelegation of authority by the canal commissioners); Curtis v. 
Leavitt, 15 N. Y. 100; TU Cal\fom%a, 1 Saw. 603, all citing Lyon v. 
Jerome. It is cited also in Ten Broeck v. Sherrill, 71 N. Y. 279, as to what 
constitutes a sufficient appropriation of property by the canal commissioners. 

Amebioan Insurance Co. v. Bryan. 

[26 Wendell, 663.] 
Ihburancb against Loss BT "Thieves" iu a marine policy covers a loss by 

simple larceny as well as a loss by "assailing thieves." 
[ifSURANCE AGAINST Loss BY Babratry of tho master or mariners include! 

losses by larceny or embezzlement conmiitted by the master or crew. 

184L] American Ins. Co. v. Bbtan. 279 

Ebbob from the supreme court in an action originall j brought 
in the superior court of New York city, on a policy of insurance, 
on goods shipped on a certain vessel. The insurance was against 
perils *'of the seas, pirates, rovers, thieves, barratry of the 
master, and mariners," etc. The evidence showed that part of 
the goods were lost, but whether by being stolen by members of 
the crew, or by other persons, did not appear. The chief jus- 
tice, before whom the case was tried, charged the jury in sub- 
stance, that a loss occasioned by the stealing or embezzlement 
of the goods by the crew or by any other persons was a loss 
within the policy, and would warrant a recovery in this action, 
there being counts for a loss by ** thieves" as well as for a loss 
l^ barratry, to which the defendants excepted. Verdict and 
judgment for the plaintiffs, and the defendants brought error to 
the supreme court, where the judgment was afiSrmed, 1 Hill, 
25, when the defendants brought error to this court 

8. Stevens, for the plaintifb in error. 

B. D. SiUiman, for the defendants in error. 

By Walwobth, Ohancellor. The policy in this case contains the 
usual clause inserted in most of the American and English pol- 
icies insuring against thieves and against the barraixy of the 
master and mariners. The evidence left it a matter of doubt, 
whether the goods were embezzled by some of the mariners em- 
ployed about the ship or steamboats, or by other thieves. The 
declaration contains several counts, some charging the loss to 
have been occasioned by barratry, and others charging it to 
have been by thieves. The case, therefore, presents two ques- 
tions for our consideration: First, whether the word thieves, in 
this policy, covers a loss occasioned by a simple larceny, unac- 
companied by open force or violence, by persons other than the 
masters and crews of the ship or steamboats in which the goods 
were transported? and, secondly, whether the insurance against 
barratry, covers a fraudulent or felonious embezzlement or steal- 
ing of the goods by the master or crew? 

I had occasion to express my opinion upon the first question 
several years since, in the case of The Atlantic Insurance Co. v. 
Storrow and Boyd, 5 Paige, 292. In that case, I arrived at the 
conclusion that the elementary writers, who held that the term 
thieves in the policy only meant assailing thieves, had followed 
the language of the continental writers on this subject, without 
adverting to the difference in the language of their policies 
from that which was contained in those of England and Amer- 

280 American Ins. Co. v, Bryan. [New York, 

ica. By referring to the xnarine ordinance of Louis XIV., 
promulgated in 1681^ book 3, tit 6, art. 26, wbich enumerates 
the risks assumed by the underwriter, where there are no spe- 
cial stipulations on the subject in the policy, it will be seen that 
neither the word thieyes nor barratry is used; and, so &r as I 
have been able to discover, the only word used in any of the 
continental policies to coyer any kind of theft, except what is 
included in the term barratry, is the French -word pillage, or its 
equivalent. This term piUage imports latrocination, or robbery 
by force or violence, and not a simple larceny merely. Merlin 
defines it to be the plundering, ravaging, or carrying off of goods, 
commodities, or merchandise, by open force or violence. PiUage 
o'est de gat, le ravage et Tenlevement de effets, de denrees, ou 
de merchandizes, a force ouverte: 23 Merlin's Bepert. de Juris. » 
art. Pillage. 

The term thieves, in our policies, is not intended as a mere 
translation of the word pillage, used in the ordinance of Louis 
XIV., and in the present commercial codes of France and other 
continental powers: See Code de Com. Francaise, book 2, tiL 
10, art. 360; Lafond, D'Assur. Marit. 101, sur la Police D'An- 
vers; and Code de Com. D'Espagne, by Foucher, p. 292, art. 861. 
By a reference to the continental policies, as collected by Lafond, 
and to those of England and the United States, it will be seen 
that the language of the continental policies is in a great many 
other respects entirely dissimilar from the language of English 
and American policies. In the absence of any judicial decision 
to the contrary, therefore, the most that can be inferred from 
the elementary writers on the subject is that the term piUage, in 
the continental policies, does not include simple larceny; and 
that the term thieves, in our policies, does not include theft per- 
petrated by the master or mariners, so that losses by larcenies 
of this last description must fall upon the assured, where there is 
no insurance against barratry by the master and the crew. Mar- 
shall, who wrote in 1802, appears to consider it as settled that 
the word thieves in a policy, only means assailing thieves, or 
those who assail or rob the ship by violence from without; but 
to show that this was not considered, even in England, as the 
settled construction of the word thieves in the policy, at that 
time, it is only necessaxy to refer to the work of Mr. Justice 
Park, the fifth edition of which was published under his own in- 
spection in the same year that Marshall wrote. After referring 
to what is said by Malyne and by Boccus on this subject, espe- 
cially by the latter, he adds: ''It was thought proper thus to 

1841.] American Ins. Co. v. Bryan. 281 

Btate ihe opinion of this learned writer upon the subject, the law 
of England in this respect being silent, though his reasoning 
xxpou this subject is by no means conclusiye as to English insur- 
ances, on account of the express terms of the contract:" Park 
on Ins. 25. And Mr. Hughes, who wrote twenty-six years after- 
wards, does not consider the question as settled, that the word 
thieyes may not include losses by theft committed by persons on 
ship board as passengers, where the loss occurs without the &ult 
of the assured: Hughes on Ins. 232. 

Upon the second question there appears to be yery little room 
to doubt that an insurance against barratry by the masters and 
mariners includes larcenies and embezzlements of the goods in- 
sured, either by the master or the crew, other than mere petty 
thefts. By the ancient law of France, according to Yalin, the 
insurer was answerable for the barratry of the master and crew 
without any express provision ia tHe policy to that effect; but 
not until the owner of the goods insured had exhausted his rem- 
edy against the master for the loss sustained: See Yalin's Comm. 
upon the Ordin. of Louis XIV., by Becave, vol. 2, p. 303. The 
ordinance, however, declared the insurer not liable for barratry 
of the master and mariners, where he was not by the terms of the 
policy charged with a loss by barratry. The same provision is 
contained in the commercial code of Napoleon, and in the com- 
mercial code of Spain, promulgated by Ferdinand YII. in 1829. 
But where, by the terms of the policy, the insurers take upon 
themselves the risk of barratry by the master and mariners, 
known to the continental lawyers by the terms barratry of the 
patron, they are answerable absolutely for any damage resulting 
from the acts of the master or crew, either by reason of igno- 
rance, rashness, malice, change of route, larceny, or otherwise; 
and such is also the law of Holland, according to Yalin: See 2 
Becave's Yalin, 303. The meaning of the term barratry in Brit- 
ish and American policies is not quite as extensive; but it un- 
questionably includes every act of the master or mariners of a 
criminal or fraudulent nature, tending to their own benefit and 
to the prejudice of the owners or charterers of the vessel. In 
the language of Mr. Justice Aston, in VaUejo v. Wheeler, Cowp. 
156, it includes every species of fraud, knavery, or criminal con- 
duct in the master, by which the owners or freighters are in- 
jured; and it is equally extensive in its meaning when applied to 
the conduct of the mariners, except that it may not include 
petty thefts: 1 Phil, on Ins. 239. I have no doubt, therefore, 
that the stealing or embezzlement of the property in controversy. 

282 American Ins. Co, u Bbfan. [New York, 

in fhifl case, if perpetrated by the* master or mariners of the 
ship, or of any of the steamboats upon which the goods were 
transported, was an act of barratry covered by the policy. 

For these reasons, I thinlc the charge of the judge who tried 
the cause was not erroneous; and that the judgment of the 
supreme court sustaining the decision of the superior court of 
the city of New York should be affirmed. 

Yebplangk, Senator, also deliyered an opinion in favor of af- 
firming the judgment, of which the following is a synopsis: 

The charge unquestionably misled the jury, if under the clause 
against barratry by the crew the insurers are not liable for their 
thefts, at least without proof that there was no want of due care 
by the master. The meaning of the word barratry in its English 
use is well settled since the time of Lord Mansfield's series of 
decisions on insurance law. It includes, as was said by him, 
" whatever is a cheat, a fraud, a cozening, a trick by the master:" 
VaUejo V. Wheeler, Cowp. 164; or, as stated by Judge Aston, it 
ocAnprehends '* every species of fraud, knavery, or criminal con- 
duct, by which the owner or freighter is injured." Lord Ellen- 
borough's definition is substantially the same: Earle v. .fioto- 
cro/i, 8 East, 126. Chancellor Kent sums up the definitions of 
barratry as follows: '*It means fraudulent conduct of the 
master in his character of master, or of the mariners. It includei 
even breach of trust committed with dishonest views." These 
definitions are generally given in cases of barratry by masters, 
but they apply also to barratry by the crew. ''Bazxatry of 
mariners," therefore, in a policy of insurance must include all 
fraud, knavery, breach of trust, or other criminal conduct on 
their part whereby the assured suffers loss. Hence it covers 
embezzlement. It has been so held as to embezzlement by the 
master and by carriers and their servants generally: See Boehm 
V. C(mhe, 2 Mau. & Sel. 172. 

It is true that the ship owner is liable for losses to shippers 
from the theft and pilfering of the crew, and that the crew may 
be liable to contribute from their wages for the reparation of 
such losses. But the express object of an insurance against 
barratry is to exempt the shipper from the risk of the ship- 
owner's solvency, and from the difficulty of showing exacUy how 
a loss occurred. It leaves the insurer, after being substituted 
to the rights of the assured by paying the loss, to follow out and 
assert those rights. It has been laid down that insurers are not 
answerable for any breach of trust by the mariners to the same 
extent as for that of the master, for the reason that the assured 

1841.] American Ins. C!o. u Bryan. 283 

is presnined to have more control oyer the crew, and, from the 
little trust ordinarily reposed in them, to be answerable for their 
conduct to a greater degree; but that with this distinction an 
act of barratry of the crew does not differ from a similar act by 
the master; and the insurers are answerable for any loss occa- 
sioned by the barratry of the mariners, if with due caution and 
diligence it could not haye been prevented, but are, in general, 
not liable for petty thefts and embezzlements, since they might 
have been preyented: 1 Phil. Ins. (1st ed.) 238; Pipon y. Cope^ 
1 Camp. 434. The presumed control of the crew by the assured 
through the master in the case of an insurance on a sl^ipment of 
goods is, howeyer, purely theoretical, the shipper generally 
haying in fact no greater control than the insurer. 

Barratry, or criminal knayery, of mariners, including there- 
under embezzlement of the goods, is a peril insured against. 
The insurer is prima facie liable for a loss from that cause; but 
if the barratrous act arose from the master's fault or negligence 
short of actual barratry in him, the insurer is not liable unless he 
has insured specially against such negligence, any more than he 
would be liable for a loss by shipwreck occurring through the 
master's ignorance or inattention, and not specially insured 
against: 3 Kent's Com. 300. The burden, howeyer, is on the in- 
surer to show that a loss by barratry of the crew for which he 
is prima facie liable was caused by the master's fault or negli- 
gence. The rule, in this respect, is the same as in case of a loss 
by shipwreck where the insurer relies upon negligence, devia- 
tion, or the like, to excuse him: See WiUiam^ y. East India Co., 
3 East, 192; JMmarsh y. Washington Ins. Co., 4 Mason, 441; 
Columbian Ins. Co. y. CatleU, 12 Wheat. 383. So where the 
insurer seeks to excuse a loss by barratry of the master: Boss 
y. Hunter, 4 T. B. 37. So where an alleged violation of a 
local law is relied on to escape liability for a loss: 4 Camp. 234. 
In the present case, the plaintiffs were not bound to prove care 
and vigilance by the master and others to prevent the loss, for 
they are to be presumed rmtil the contrary appaers. This must 
be especially the rule in a case like this, where the naked fact of 
negligence by the master would not excuse the insurer, since 
such negligence might itself amount to barratry and so be with- 
in the policy: Patapsco Ins. Co. v. CouUer, 11 Pet. 225. And 
again, the master's negligence might be too remote a cause of 
the loss to furnish any excuse: Id. The insurers, therefore, in 
order to excuse themselves, must show negligence by the master 

284 American Ins. Co. v. Bryan. [New York, 

which, on the one hand, was not barratrous, and, on the other, 
was not too remote or accidental. 

In this case, howeyer, it is not clear upon the proof whether 
the goods were secretly stolen by members of the crew or by 
other thieyes, which gives rise to the question whether an insur- 
ance against '* thieves" means thieves generally, or is restricted 
to " assailing thieves." The former is undoubtedly the ordinary 
meaning. It is equally undoubted that the latter is regarded 
by the older authorities as the sense in which the word is used 
in marine policies: 3 Kent Com. 803, criticising Atlantic Irut. 
Co. V. Storrow, 6 Paige Ch. 293; Boccus, note 42; Emerigon, 1 
Ch. 12; 1 Phil. Ins. 258. The authoriiy of the old books 
ought, undoubtedly, to have great weight in the construction 
of marine insurance contracts, because the policy of marine 
insurance has been gradually formed by two centuries and a 
half of commercial usage, and necessarily retains much of its 
original form, and much of the ancient phraseology, made in- 
telligible by the custom of merchants and underwriters: 4 T. B. 
238. It is important, therefore, to ascertain how far the author- 
ities of the books are correct or applicable in modem use. 

There are no direct adjudications as to the meaning of the 
word " thieves" in a marine policy, except Atlantic Ins. Co. v. 
Storrow, 5 Paige 293, and the decision of the court below in 
this case. It is settled, however, that the word covers " robbery 
with violence committed by persons from without the ship:" 
Harford v. Maynard, cited by Park. But is there sufficient 
reason for restricting the meaning to "robbery with violence"? 
The question is merely one of the interpretation of the written 
contract. The clause of insurance against ''thieves" seems not 
to be in use in ordinary policies in France, Italy, Spain, Hol- 
land, or the north of Europe; but in English policies it is of 
very old date, and may probably be traced back to the reign of 
James I. ; see the forms given in Postlethwaite's Diet, of Com- 
merce (1751), and by Molloy and Malyne. What then was the 
old use and meaning of the word ''thieves?" The primary, 
and now the ordinary, signification is secret stealing or larceny. 
It formerly had a more general meaning, and included what we 
now term robbery as well as larceny. This is well shown by 
the use of the word in the English bible, where it is applied in- 
discriminately to secret theft and robbery by violence. The 
Greek words H\€7tr?j?, "secret thief" and Xrjari]^, " robber by 
force," are both translated "thief" except when used in the 
same sentence: John x., 1. The same extended use of the word 

1 841.] AiiERiCAX Ins. Co. u Brtan. 285 

iheft, as including felonious taking with or without force, is 
found in Blackstone. That this is the meaning which the word 
is ordinarily understood to haye in policies of insurance is in- 
dicated by the fact that in many modem policies, when the 
underwriters wish to restrict their liability to a robbery by force, 
they use the phrase "assailing thieyes." Against the general 
usage and understanding we haye only the dicta of the eminent 
jurists before referred to. The latter should not be permitted 
to OTerrule the former. 

It has been luged here abo that a loss by thieves is not within 
the policy if it was occasioned by the negligence of the master. 
The answer is the same as that already given respecting a loss 
by barratry. The insurer is prima facie liable for a loss by 
thieyes; and if he relies upon the master's negligence to excuse 
him, it rests upon him to prove that there was such negligence, 
and that it was a proximate cause of the loss. 

On the question being put. Shall this judgment be reversed? 
all the members of the court present at the argument answered 
in the negative. 

Whereupon the judgment of the supreme court was affirmed. 

Bakratbt, What Gokbxitutbs: See WUeox ▼. Unum In§. Co.^ 4 Am. Dea 
480; Wignfin v. Anwry, 7 Id. 175; Brawn v. Union Im, Co., 6 Id. 123; Mil- 
landon v. N. 0. Ins. Co., 13 Id. 358. The principal case is cited generally 
as to what oonstitates harratiy by master or mariners within the meaning of 
a policy of insurance, in Atkinaon y. Omat Western Ins. Co., 4 Daly, 27; S. C, 
in ooort of appeals, 65 K. Y. 537. So it is cited in Spmetti v. AOas S^eanu 
ship Co., 80 K. Y. 75, to the particolar point that ** harratiy of mariners" 
Inoludea theft and emheszlement by the crew. 

Whbkb Kbgliobncs of Mastbb is Rkmotb Causb of a loss, the proximate 
canse heing a peril expressly insured against, the insurer is not excused: 
Mathews v. Howard Ins. Co., 13 Barb. 244; S. C, in court of appeals, 11 K. 
Y. 21, both referring with approval to the opinion of Verplanok, senator, ia 
the principal 



nr THX 



MoTT V. Bobbins and Anotheb. 

[1 Hn.T^ ai.] 

Bmim of Opficb. — Appointment of a deputy sheriff onder an agreement that 

he shall pay to his principal one half of the fees received hy snoh deputy 

for his senrioes ia not the selling of an office. 
Bond of Deputt Shebiff conditioned that he will indemnify the principal 

from all damages arising from the deputy's conduct and pay to the sher* 

iff one half of all fees received, is valid. 
OmoBB MAT Take an Aorxemznt for the payment to him of part of the 

fees of his office, because he is in Uiw entitled to the whole thereof; and 

he may divide his fees with a deputy as a mode of paying the latter for 



arising out of the profits of the office, is void, as amounting to the sale 
of an office. 

Debt upon a bond with suretieB, given by a deputy 8heri£F to 
his principal, conditioned to indemnify the sheriff from all 
damages, on account of the official acts of such deputy and to 
pay the sheriff one half of the fees receiyed hj the deputy. At 
the trial the defendants insisted that the bond was void, because 
within the prohibition of the revised statute against taking 
bonds colore officii and against selling offioes* PlaintifBs leooT* 

W. Tracy, for the defendants. 

J. A. Spencer, for the plaintiff. 

By Court, Bbonson, J. We are referred to the statute which 
prohibits the sheriff from taking a bond or other security colore 

Jan. 1841.] CSovEKET v. Tannahill. 281 

officii (2 B. S. 286, sec. 59), and to the statnte against selling 
offices (Id. 696, sees. 35, 37), to prove that the bond of the dep • 
uty is void. The sheriff has authority to api>oint deputies (1 
Id. 379, sec 73); but there is no law regulating the amount of 
compensation which the deputy shall receive, as was the case in 
Ibppan y. Brown, 9 Wend. 175. The sheriff has here taken t 
bond from the deputy for the faithful discharge of his duties, 
and to account for and pay oyer one half of the fees of such 
business as should be done by the deputy. There can be no 
doubt that the bond is yalid. The question has been long set- 
tled in cases coming under the statute 5 and 6 Ed. YI., c. 16, 
from which our statute against the sale of offices was taken. 
When the principal, on appointing a deputy, takes an agreement 
for the payment of a gross sum, which is not to come out of the 
profits of the office, the contract is yoid. But where he resenree 
a part of the fees of the office, or a sxmi certain, which is to come 
out of the profits, the contract is good. And the reason why the 
princix>al may take a stipulation for a part of the fees or profits, is 
because the whole belongs to him; and, as has been said, ** it is 
only reserving a part of his own, and giving away the rest to 
another:" GodolpkinY. Tudor, 2 Salk. 468; S. C, 6 Mod. 234; 
1 Bro. P. 0. 98, affirmed in the house of lords; GvMford y. 
Cardind, Comb. 356; S. 0., by the name of Ctdliford y. Cor- 
donmy, 12 Mod. 90; Com. Dig., tit. Officer, E. 1. Li the case of 
Ihppan y. Broum, 9 Wend. 75, a part of the fees belonged by 
law to the deputy. But in this case they all belong to the sher- 
iff; and tiie agreement to divide them, is only a mode of settling 
the compensation of the deputy for such services as he might 
render. Such an agreement the parties were at liberty to make. 
New trial denied. 

Cited in Kelly v. McCormiek, 2 £. D. Smith, 611, aa to when aeouritiee 
taken by a aheriff .will not be oonaidered &a having been exacted coloft officii. 


[1 Bill, 8S.] 
ObmriDximAL CoMMUinGATiONS between ATToaNET AND Client, whether 
oral or written, concerning the matter to which the retainer relatea, are 
not to be diaoloaed in oonrt, unleaa the client waives his privilege. 


ITS Contents, when it was deposited with him by his client. He may 
be required to testify concerning its existence, and whether it is in his 
poe sooai on, for the porpoae of anthorizin^ the adverse party to give parol 
evidence of its contents. 

288 CovENEY V, Tannahill. [New York, 

Attoenst Witnessing a Disbd, or thb Siqnino or an Answer, or any 
other fact, inay be required to testify conceming the same. 

Attobnet being Asked whether he was Present when an Aooount 
Stated was Signed, and when and where it was signed, and who were 
present, can not properly refuse to answer on the ground that the matter 
is in the nature of a privileged communication. 

SuBP(ENA Duces Tecum upon an Attorney to Produce Pafers of his 
client, need not be obeyed. 

Acts and TRANSAcrnoNs of a Cuent, Done in the Presence of an At- 
torney, may be testified to by the latter. 

Peivileoed Relation of Attorney and Client exists for lawful pnrposei 
only, and the former may be required to disclose a criminal design con* 
fided to him by the latter. 

Whether Communication is Priyilegbd is for the oonrt to decida 

Attorney Called by his Client to Witness a Business Traitsaction 
between the latter and a third person, is not priyileged from testifying 
to what he there saw. 

Attorney can not be Required to Testify what was the State of a 
written instrument when first exhibited to him by his dient^ or whether, 
when he first saw an account in the hands of his client, the evidence of 
settlement was indorsed on it. 

MonoN to aet aside the rei>ort of referees. It was made by 
the defendants, Edwards and MoEibben. Plaintiff gave in evi- 
dence a written account stated, with an acknowledgment, in the 
handwriting of Tannahill, in the name of John Tannahill & Co. , 
that a balance of seven hundred and forty-seven dollars and 
thirty-six cents was due plaintiff. Edwards and McEibben 
sought to show that this acknowledgment was made by Tanna- 
hill to defraud them, and after he had been enjoined from in- 
terfering with partnership accounts. They called as a witness 
S. E. Sill, plaintiff's counsel, and asked him: 1. Whether he 
was present when the account stated was signed; 2. If so, when 
and where was it signed, and in whose presence; 3. When he 
first saw the account, and whether at that time the acknowl- 
edgment was indorsed on it. The witness said he could not 
answer the questions without violating professional confidence, 
and that all his knowledge was obtained as counsel in the cause. 
The referees did not require him to answer either question. 

W. L. O. Smith, for the defendants. 

Hawley and SiU, for the plaintiff. 

By Court, Bbonson, J. Confidential communications between 
attorney and client, conceming the matter to which the retainer 
relates, are not to be disclosed in court, unless the client waives 
his privilege. The mode in which the information is communi- 
cated — ^whether by an oral statement of facts, or by delivering 

Jan. 1841.] CovENEY v. Tannahill. 289 

a written instrument — can not be important. The principle is 
the same in whatever way the information passes. The policy 
of the law allows a man to make the best defense in his power. 
Whatever may be his delinquency, he is permitted to confer 
freely with his counsel, and to place in his hands any paper 
touching the matter in question, ^thout the peril of ha^g hL 
confidence betrayed imder the forms of law. The attorney may 
be called to prove the existence of a paper, and that it is in his 
possession, for the purpose of enabling the other party to give 
parol evidence of its contents. But he can not be compelled to 
produce or disclose the contents of a x)aper which has been de* 
posited with him by his client: Brandl v. Klein, 17 Johns. 335; 
Jackstm v. McVey, 18 Id. 330; Bex v. Smithy 1 Phil. Bv. 142; 
Brard v. Ackerman, 5 Esp. 119; and see Bevan v. Waters, 1 M. 
A M. 235; Eicke v. Nokes, Id. 303; Vin. Abr., Discovery, I; 
Durkee v. Leland, 4 Vem. 612; Anon., 8 Mass. 370. In Wright 
V. Mayer, 6 Yes. 280, Lord Eldon said, he never heard of a 
^tibpcena dwces tecum upon an attorney, to produce the papers of 
his client. In Bex v. Dixon, 3 Burr. 1687, the point was de- 
<nded, that the attorney was not obliged to obey such a subpoena. 
Lord Mansfield said, that instead of producing the papers, the 
attorney ought immediately, upon receiving the subpoena, to 
have delivered them up to his client. 

This privilege of the client does not extend to eveiy fact which 
the attorney may learn in the course of his employment. There 
is a difference, in principle, between communications made by 
the client, and acts done by him in the presence of the attorney. 
It may be, and undoubtedly is, sound policy to close the attorney's 
mouth in relation to the former, while in many cases it would be 
grossly immoral to do so in relation to the latter. It is the privi- 
lege of one who is charged with a wrong, either public or private, 
to speak unreservedly with his counsel in preparing for his de- 
fense; but he should not be allowed to stop the mouth of one 
who was present when the wrong was done, upon the allegation 
that he was retained as counsel to see or aid in the transaction. 
Indeed, I think there can be no such relation as that of attorney 
and client, either in the commission of a crime, or the doing of 
a wrong by force or fraud to an individual. The privileged re- 
lation of attorney and client can only exist for lawful and honest 

Chief Baron Gilbert, after stating the general rule in relation 
to the exclusion of counsel, says: '' Where the original ground 
of communication is Tnalum in ee, as if he be consulted on an 

Am. Dko. Vol. XXXVn— 10 

290 CovENET u Tannahill. [New York, 

intention to commit a f orgeiy or peijuiy, this can never be in- 
cluded within the compass of professional confidence; being 
eqtially contrary to his duty in his profession, his duly as a dti* 
zen, and as a man. But if such offense, as forgery for example, 
committed without his being privy, comes to his knowledge in 
the course of confidential transactions with his client in the way 
of business, he shall not be compelled to assist in proving it:" 
1 Gilb. Ev. 277, DubUn, 1796; see Clay v. WUliams, 2 Munf . 106 
[6 Am. Dec. 453]; Parker v. Carter, 4 Id. 273 [6 Am. Dec, 613]; 
Bex V. Haydn, 2 Fox & Smith (E. B. in Ireland), 379. 

I will not undertake to say how far the distinction between 
the communications and the acts of the client may extend, but 
there can be no good reason for excluding the attorney when he 
has witnessed a transaction in the way of business between his 
dient and a third person; as the adjustment of an account, the 
execution of a deed, the payment of a sum of money, the giving 
up of securities, or the like. It is not necessary that a man 
should have an attorney to witness his dealings with third per- 
sons; and if one is called in, I can see no reason why he, like any 
other person who was present, should not be sworn to prove 
what was done. 

In the case at bar, I feel no difficuliy in saying, that Mr. Sill 
should have been required to answer the first two questions 
which were put to him. He says he could not do so without 
violating the confidence reposed in him by his client. But that 
was a question for the referees — ^not the witness. When the 
foots are disclosed, it is for the court to decide whether the wit- 
ness shoidd be required to answer. The substance of the first 
two questions put to the witness is: " Was you present when the 
account stated was signed; when and where was it done, and 
who was present?" The witness answered, that all his knowl- 
edge of the writing had been obtained by him as counsel in 
the cause. He evidentiy did not intend to say that he was not 
present, etc.; for that would be answering, instead of declining 
to answer, the questions put to him. The meaning of the an- 
swer is, that if the witness was present and saw the paper 
signed, etc., he was so present as counsel for the plaintiff. The 
case then comes to this: The plaintiff, in adjusting an account 
with a third person, and procuring a written acknowledgment 
of a balance due, calls in a counselor at law to witness the 
transaction; and the question is, whether the attorney shall be 
permitted to sx>eak without the leave of his client? Upon that 
question I can not entertain a doubt. What was done and 

JaiL 1841.] COVENEY V. Tannahill. 291 

said between the plaintiff and Tannahill in the way of business, 
can not be turned into a confidential communication between at- 
torney and client, merely because the plaintiff had an attorney 
present to hear and see what took place. No secret was con- 
fided to the attorney, and he might have been required to an- 
swer, not only when and where the account was signed, but as 
to everything that was done and said between the plaintiff and 
Tannahill on that occasion, so far as the matter would be per- 
tinent if proved by any other witness. If any commimications 
passed between the attorney and client ax)art from Tannahill, 
these may be privileged; but nothing else. 

In Lord Say and Seal's case, 10 Mod. 40, the objection to a 
common recovery was, that there was no tenant to ihe prcecipe; 
and on producing a deed, the attorney who had been intrusted in 
Buffering the recovery was called to prove that the deed had been 
antedated five months; and he was admitted. The court said, 
that *' a thing of such a nature as the time of executing a deed, 
could not be called the secret of his client; that it waj3 a thing 
he might come to the knowledge of without his client's acquaint- 
ing him, and was of that nature, that an attorney concerned, or 
anybody else, might inform the court of." From the manner 
in which tI4^ case is cited by Buller, N. P. 284, it may be in- 
ferred that the attorney was a subscribing witness to the deed, 
but no such fact is mentioned by the reporter. In Bex v. Wat- 
kinson, 2 Str. 1122, the defendant was indicted for perjury in an 
answer in chancery, and his solicitor, who was present when the 
answer was put in, was called to identify the defendant as the 
person who was sworn; but Chief Justice Lee would not com- 
pel the solicitor to testify. " Quasre tamen," says the reporter, 
** for this was to a fact in his own knowledge, and no manner 
of secrecy committed to him by his client." That the reporter 
was right, and the court wrong, has been agreed ever since. In 
Doe V. Andrews, Cowp. 845, Lord Mansfield said: "1 have 
known an attorney obliged to prove his client's having sworn 
and signed the answer upon which he was indicted for perjury." 
And see Bull. N. P. 284; 1 Phil. Ev. 146, 7fch ed.; 1 Gilb. Ev. 
277; 2 Stark. Ev. 398; Roscoe's Cr. Ev. 150; Peake's Ev. (Nor- 
ris), 251; Oreenough v. Oaskell, 1 Myl. & K. 98. In Studdy v. 
Sanders, 2 Dow. & Ey. 347, the clerk of the solicitor was called 
to identify the defendants as the persons who had put in an an- 
swer in chancery, and it appearing that his knowledge of the 
fact arose wholly from communications with the defendants, the 
evidence was rejected, and the plaintiff nonsuited. But the 

292 CovENEY V. Tannahill. [New York, 

nonsuit was set aside. The court said, the fact offered to be 
proved was not in the nature of a confidential communication 
between attorney and client, because it was a fact easily cog- 
nizable to the witness and to many others persons, without any 
confidence on the subject being reposed in him. See Parkins y. 
Hawkshaw, 2 Stark. 239, which seems to be the other way. But 
the witness was not called to speak of an act, but to disclose 
communications with the client. 

The attorney may be called against his client to prove a deed 
to which he is a subscribing witness. In Doe t. Andrews 
(Cowp. 845), Lord Mansfield said: "An attorney has no priv- 
ilege to give evidence of collateral facts." In Eobson v. Kemp 
(5 Esp. 62), the attorney was required to testify concerning a 
warrant of attorney which he had subscribed as a witness. 
Lord Ellenborough said, the attorney was bound to dis- 
close all that passed at the time, respecting the execution of the 
instrument; but not what took place in the concoction and 
preparation of the deed, or at any other time, and not connected 
with the execution of it; upon which matters he had a right to 
be silent: S. C, 4 Esp. 235. In Hwrd v. Moving, 1 Car. & 
Payne, 372, the attorney was required to prove his client's 
handwriting, although his knowledge of it was acquired solely 
irom seeing him sign the bail bond; and in Johnson v. Daveme^ 
19 Johns. 134 [10 Am. Dec. 198], the attorney had acquired 
a knowledge of his client's handwriting after the retainer, but 
without any confidential communication, and it was held that 
he was boimd to testify. In Sanford v. Remington, 2 Ves, jun. 
189, the chancellor said, the witness may be called on to dis- 
close all that did pass in his presence at the execution of the 
deed; so his having been sent by his client with orders to put 
the judgment in execution — that is an act; but he is not to dis- 
close the private conversation as to the deed, with regard to 
what was communicated as to the reasons for making it. 

In jRobson v. Kemp, 5 Esp. 52, the attorney was called to 
prove the destruction of a deed, and said, that all he knew 
about it had been acquired by being called in by both parties as 
their attorney; and Lord Ellenborough rejected the evidence. 
He remarked: "The act can not be stripped of the confidence 
and communication as an attorney, the witness being then act- 
ing in that character. One sense is privileged as well as another. 
He can not be said to be privileged as to what he hears, but 
Dot as to what he sees, where the knowledge acquired as to both 
has been from his situation as attorney." Notwithstanding what 

Jan. 1841.] Covenet v. Tannahill. 293 

is said about the sense of seeing being privileged, I think the 
'witness must have been questioned concerning what was said by 
the client; for the judge immediately adds: '' I therefore think, 
if the only knowledge he has, as to the destruction of this in- 
strument, was acquired from the confidential communication 
made to him as an attorney, that he can not be examined to it." 
It may have been thought important that the witness had acted 
as attorney for both parties; for where an attorney is called in 
by one party to witness a transaction in the way of business 
with a third person, I can not think that his mouth is closed 
either as to what he saAv or what he heard. It is not in the na* 
ture of a confidential communication between an attorney and 
client: See Leasee of Devoy v. Burke ^ 2 Fox & Smith, Irish K. 
B. 191. In Duffin v. SmUh, Peake's N. P. Gas. 108, the defend- 
ant called the plaintifTs attorney, to prove that the considera- 
tion of the bond in suit was usurious; and he was admitted. 
Lord Kenyon said: " Where anything is communicated to an 
attorney by his client for the purpose of his defense, he ought 
not to divulge it; but where he himself is, as it were, a i>arty to the 
original transaction, that does not come to his knowledge in the 
character of an attorney, and he is liable to be examined the 
same as any other person:" See 12 Yin. Abr. 38, pi. 1. 

An attorney's clerk may be called to prove that he received a 
particular paper from the client: Eicke v. Nohes^ 1 M. & M. 
303. And the attorney may be required to make discovery of 
a deed intrusted to him by his client, by answering whether 
there was such a deed, where it is, to whom delivered, when he 
last saw it, and in whose custody; but not to produce the deed, 
or discover its contents: Kington v. OdLe^ 8 Yiner's Abr. 548. 
Mr. Justice BuUer, in speaking of cases where the attorney may 
be called, says: ** 11 the question were about a razure in a deed 
or vrill, he might be examined to the question whether he had 
ever seen such deed or will in other plight, for that is a fact of 
his own knowledge; but he ought not to be permitted to dis- 
cover any confessions his client may have made to him on such 
head. So, if an attorney were present when his client was 
sworn to an answer in chancery, upon an indictment for per- 
jury he would be a witness to prove the fact of taking the oath, 
for it is a fact in his own knowledge, and no matter of secrecy 
committed to him by the client:" Bidl. N. P. 284. In the case 
at bar, the witness was questioned as to '' a fact in his own 
knowledge;" it was ** no matter of secrecy committed to him by 

294 CovENEY V. Tannahill. [New York, 

bis client;" and I can see no possible reason wby be sbould not 

There is a further reason for holding the eyidence admissible. 
The case which the defendant's counsel proposed to make out, 
was, that the account was stated, and a large balance acknowl- 
edged to be due the plaintiff, for the purpose of defrauding the 
defendants, Edwards & McEibben. Now, if the plaintiff con« 
suited counsel beforehand as to the means, the expediency, or 
consequences of committing such a fraud, his communications 
may, perhaps, be priyileged; and they are clearly so, as to what 
he may haye said to counsel since the wrong was done. But the 
attorney may, I think, be required to disclose, whatever act was 
done in his presence towards the perpetration of the fraud. 
One who is charged with having done an injury to another, 
either in his person, his fame, or his property, may freely com- 
municate with his counsel, without the danger of having his 
confidence betrayed through any legal agency. But when he is 
not disclosing what has already hapi)ened, but is actually en- 
gaged in committing the wrong, he can have no privileged 
witness: See the remarks of Ld. Brougham, in Oreerumgh v. 
Gaakell, 1 Myln. & E. 98. 

The third question proposed to the witness was, in substance: 
" When did you first see the account stated, and was the evi- 
dence of a settlement indorsed on the account when you first 
saw it?'' Although the question does not necessarily imply so 
much, it was understood on the hearing as intended to draw 
from the witness an admission that he had seen the paper in the 
hands of his client, or received it from him, in a different state 
or condition from that in which it appeared on the trial. Tf such 
was the aim of the defendants in putting the question, I think 
the referees were right in not allowing it to be answered. We 
have already seen that the attorney can not be compelled either 
to produce or to disclose the contents of a paper which he has 
received from his client; and this is so although the paper may 
be required as the foundation for a public prosecution : Rex v. 
Dixon, 3 Burr. 1687; Bex v. Smilh, 1 Phil. Ev. 142. The prin- 
ciple is, that all confidential communications between attorney 
and client, whether written or oral, are alike privileged. If the 
plaintiff, at any particular time, delivered or exhibited the 
Account to his attorney without the evidence of a settlement in- 
dorsed upon it, it was the same thing, in substance, as though 
he had at that time told him verbally that he had an account in 

Jan. 1841.] CovENEY v. Tannahill. 295 

that plight; and the one form of commtinication ia^ I think, as 
much priTileged as the other. 

No case which has fallen under my observation necessarily 
goes the length of deciding that such a question must be an- 
swered. In Lord Say and SeaVa case^ 10 Mod. 40« it does not ap- 
pear that the fact of the antedating of the deed, was in any form 
commimicated to the attorney by his client. On the contrary, 
it may fairly be inferred from what is said, that the antedating 
of the deed was the joint work of the attorney and client; and 
in that i>oint of view, the decision supports a position which 
has already been stated, that the attorney must answer as to any 
fraudulent act on the part of the client which was done in his 
presence. The cases to which I have already referred, to show 
that the attorney may be called to identify his client as the per- 
son who had sworn to an answer in chancery, to prove a deed to 
which the attorney is a subscribing witness, or to prove the 
handwriting of the client, all stand on the ground that the 
knowledge of the attorney was not acquired as a secret from his 
client. In Duffin v. Smith, Peake's N. P. Cas. 108, where the 
plaintiff's attorney was required to testify to the usurious con- 
sideration of the bond and mortgage, the facts are very briefly 
stated; but it is quite clear that Lord Kenyon did not intend to 
depart from the general principle ; for he said : ' ' Where anything 
is communicated to an attorney by his client, for the purpose of 
defense, he ought not to divulge it; but where he himself is, as 
it were, a party to the original transaction, that does not come 
to his knowledge in the character of an attorney, and he is liable 
to be examined the same as any other person.'' 

In Baker v. Arnold, 1 Cai. 258, the question was presented^ 
whether the attorney could be required to answer as to what 
state the note was in when he received it from his client; and the 
reporter supposed the point was decided in favor of the admis- 
sibility of the evidence. But he was mistaken; the case went off 
on another question. (See the remarks upon this case in Brandt 
V. Klein, 17 Johns. 338.) Although the point was not decided 
in Baker v. Arnold, it was discussed by three of the judges; and 
Thompson and Livingston, JJ., were of opinion, that the wit- 
ness should not be required to answer the question: Baddiff, 
J., held the contrary; £md the other two judges expressed no 
opinion on the point. It is said in Buller's N. P. 284, in men- 
tioning the cases where the attorney may be called — '* If the 
question were about a razure in a deed or will, he might be 
examined to the question, whether he had ever seen such deed 

296 CovENET V. Tannahill. [New Tork^ 

or will in other plight^ for tliat is a fact of Ids own knowledge/^ 
The reason assigned by Buller plainly shows, that he was speak- 
ing of a case where the attorney had acquired his knowledge of 
the state of the instrument previous to his retainer, or in some 
other way than from his client. (See per Thompson, J. , in Baker 
Y. Arnold, 1 Cai. 267, 268.) Although he does not cite it, I 
have no doubt that Buller had in his mind the case of Cuis y. 
Pickering y 1 Yent. 197, where, on a trial at bar, it was held, thai 
the solicitor must answer as to what his client had told him 
before the retainer concerning a razure in a will. In Brown y. 
Payson, 6 N. H. 443, the precise point was adjudged, that the 
attorney can not be required to testify concerning the state of a 
written instrument, at the time it was received from his client, 
for the purpose of commencing an action upon it. To that doc- 
trine I fully assent. I am unable to perceive any solid distino-^ 
tion between the oral statement of a fact to counsel, and a com- 
munication of the same fact, by delivering to him a deed or other 
written instrument. 

The referees were right in not permitting the last question to 
be answered; but as they were wrong in relation to the first two 
questions, there must be a rehearing. 

Report set aside. 

CoMMumcATiOKS TO AN AiTORNST A£S Pbxvileoxd wherevor made for th» 
parpoee of seeking professional advice or aid, or to enable him to act towarda 
the protection of his client's rights: Clark v. Bieharda, 3 £. D. Smith, 95; 
Oraham ▼. PeopU, 63 Barb. 482; Bank </ Utica y. ATeraereau, 3 Barb. Ch. 
605. It appears once to have been considered that a communication to \» 
privileged must have been made with reference either to a suit then in pro- 
gress or to one that was in contemplation, and there is a dictum to that effect 
in Whiting v. Barney, 30 K. Y. 342. This view has not prevailed in New 
York. It is now sufficient, as said above, that the communication be made aa 
a basis to obtain professional advice: Clark v. Richards^ supra; Oraham v. 
People^ Id.; March v. Ludlvmf 3 Sandf. Ch. 46; BriUon v. Larenz^ 45 N. Y» 


The privilege extends to preventing the attorney from disclosing the con> 
tents of papers intrusted to him by his client for his professional advice: Mai- 
lory V. Benjamin, Barb. 423; but he might in such a case be compelled tO" 
testify as to his custody of the paper so as to lay a foundation for the intro- 
duction by the opposing party of secondary evidence as to its contents: 
Mitchell*« case, 12 Abb. Pr. 259. Communications are privileged though 
made to obtain advice in regard to a fraud: Peck v. WiUiama, 13 Abb. Pr. 
71; Bank qf UHca v. Meraereau, 3 Barb. Ch. 600; the only instance ix» 
which the communication is not privileged being where it is one made with 
reference to a meditated crime: Id. 

But information which has been acquired by an attorney in the course oi 
his professional duties is not privileged, if the knowledge was not acquired 
from his client: Crosby v. Berger, 11 Paige, 379. Nor where an attorney haa 

Jan. 1841.] People v. Cogdell. 297 

been employed by several to draw up an agreement or a deed, will the com- 
munications, acts, and declarations of the parties in his presence be privi- 
leged from disclosure: Jtoot v. \Vrig?U, 21 Hun, 348; Hubbard v. Haughmoa^ 
70 N. Y. 61; BriUum v. Lwem^ 45 Id. 67. It was decided differently in 
WhUing V. Barney ^ 38 Barb. 309; but the case was reversed on error: 30 N. Y. 
330. Under a statute providing that ' * no person au thorized to practice physic or 
surgery, shall be allowed to disclose any information which he may have ac- 
quired in attending any patient in a professional character, and which in- 
formation was necessary to prescribe for such patient as physician, or to do 
any act for him as surgeon,*' the New York courts have applied to the case 
of information acquired by a physician somewhat of the same mles that have 
been established for the government of attorneys. Thus it has been held 
that the "information" meant by the statute includes not only information 
acquired directly from the patient, by means of verbal communications, but 
all that he has learned by means and by reason of his professional character: 
Edmgton v. Mul, Hfe Ins, Co.f 5 Hun, 0. It has also been decided that the 
privilege is personal to the patient, and therefore a murderer may not object 
to the evidence of the physician, who attended upon his victim: Pierson v. 
PeopUy 18 Id. 249. All these cases cite the principal case. 

The cases in this series upon this subject will be foond collected in the 
note to BeUzhoover v. Bladeatocky 27 Am. Dea 334. 

The People v. Cogdell. 

£1 HnUifOi.] 

Labcint— The Findbb or a Pogkjeibook Coittaikino Bank Bills, but hav- 
ing no mark on or about it, by which the name of the owner could be 
ascertained, can not be convicted of larceny, though the book was im- 
mediately demanded by the owner, and the finder denied having it and 
concealed and fraudulently converted the bills, unless it further appears 
that the finder, when he acquired possession, knew who the owner was, 
or had the means of identifying him iMUmLer by marks on or about the 

Oebtiobabi. Cogdell had been convicted of stealing the 
poekei-book of John Warren, with six hundred dollars in bills 
therein contained. Book and contents haying been lost in the 
highway, Oogdell found and at once concealed them. The other 
facts appear in the opinion of the court. 

H. O. Wisner, for the defendant. 

G, Borland, district attormey, for the people. 

By Court, Cowen, J. There was abundant proof of the con- 
cealment and fraudulent conversion of the money, after it had 
been found. This was undoubtedly under a full consciousness 
in the prisoner, that it was accidentally lost. It was immedi- 
ately demanded of him by the owner, who suspected his havinf^ 
found it; but the prisoner denied the finding, and concealed the 

298 People v. Cogdell. [New York, 

bills. By fhe owner's good fortune, they were traced to tlie 
hands of the prisoner, and finally restored; but this was after a 
course of evasion and concealment, plainly indicating his fraudu- 
lent intent to keep the money if possible. 

It did not appear in evidence, that the pocket-book or money 
had any mark by which the prisoner could hare discovered 
Warren to be the owner, though he must have been conscious 
that the owner, whoever he might be, would make an effort to 
find the money. He did make such effort, offering a reward to 
the prisoner personally. In short, the loss and finding were 
purely accidental. Every thing after that, done by the prisoner, 
was characteristic of the thief; and if he can escape the legal 
consequences of the conviction of larceny, it must be solely 
because that crime is not predicable of a taking and conversion 
under the circumstances mentioned. Singular as it may seem 
to one reasoning upon principle, this appears to be the settled 
doctrine of the law, and was considered to be so by this court 
in The People v. Anderson, 14 Johns. 294 [7 Am. Dec. 462] . It 
is supposed, I perceive, by the counsel for the state, that from 
what was said in The People v. MsOarren, 17 Wend. 460, we 
may be considered as holding it a duty to disregard the adjudi- 
cation in The People v. Anderson, which is not denied to be a 
point-blank case against the prosecution. But neither the de- 
cision, nor any dictum in The People v. McOarren, nor the course 
of reasoning in that case, goes at all to countenance such an 
expectation. All we asserted there was, that probably the rule 
must be confined to such a case as the present, where it does 
not apx>ear that the prisoner knew, or had the means of knowing 
the true owner; and cases were cited to that effect. One was, 
where the pocket-book found was legibly marked with the own- 
er's name, the finder being able to read. Such cases themselves 
imply, that if the owner has placed no mark about the property, 
and none exists, by which the finder can discover him, the case 
must still be considered, as it long has been, one of mere trover 
and conversion — ^not of larceny. The general remark in The 
People V. McOarren, that a finder, having the means of discovery, 
is an exception, must be taken with the limitation indicated by 
the authorities referred to. Every finder may be said to have 
the means of discovering the owner by the exerdse of an honest 
diligence; and if, when valuable proi)erty is lost, such means 
may be made a test, the doctrine of The People v. Anderson is 
indeed gone. Scarcely any finder could fail in his search; and 
this being generally obvious to a jury, they would hardly ever 

Jan. 1841] Bloom u Burdicil 299 

fail to conyict for that reason. The role would thuB, in prac- 
tice, be brought down to a yeiy narrow exception. 

It may be yeiy difficult to perceive any reason in sound monds, 
why this should not be so; but that is no argument for dis- 
regarding a settled rule of law. 

New trial ordered. 

Labi^xnt of Stolen Goods: See SUUe v. Boper^ 24 Am. Dec. 268» and note. 

Bloom et al. v. Bubdioe. 

[1 HILL, lao.] 

Omibsiom or Substt from AoMiNisTRAToa's Bond does not make Toid ths 
grant of letters to him. 

To THx JnusDionoN or tks Sobbooatx in Qrantino ADMonsraATiov 
two things only are essential, viz.: 1. The death of the intestate; and 2. 
His inhabitancy, at or immediately preceding his death, of the ooonty in 
which the administration was granted. 

JuBiSDicnoK TO Obdkb a Salb of Rxaltt Dxpbnds on a petition and 
acconnt. • 

AooouNT BiQUisiTS TO WARRANT A Salb OF RsAi^T Can not be dis- 
pensed with becaose an inventory has previonsly been filed, although a 
general reference to snch inventory is made. 

If an Account is PRiSBNtXD, its effect is not destroyed by calling it an 

Onr Docomxnt jiAT Answer thx Doubli Purfosb of an account and an 
inventory; and an inventory made and presented at the time the petitioo 
for an order of sale is filed, may be treated as an accoant and give the 
court jurisdiction to the same extent as a separate acconnt containing the 
same matters. 

If it does not Clearly Appear at what Tms the Inyentort was Filed» 
but there is some evidence tending to show its filing at the time the sale 
was petitioned for, the question whether it was filed at the proper tima 
to support the order of sale must be submitted to the jury. 

Appugation of Personal Estate to Payment of Debts need not be 
made before petitioning for a sale; it is sufficient that such application 
has been made when the order of sale is granted. 

Description of Land in an Order of Sale, as ninety-one acres of the south- 
west comer of lot number eleven, is not fatally defective if the intestate 
owned that number of acres and no more in the lot named. 

In Ejectment Defendant mat Show Title out of Plaintifis, though 
he does not connect himself with it, if he did not enter under them. 

Jurisdiction over the Persons to be affected by a surrogate's sale 
must be obtained in some manner sanctioned by law, otherwise the pro- 
ceeding will be void. 

statute. Persons claiming under its orders must show affirmatively thai 
it obtained jurisdiction to make them by pursuing the forms prescribed by 
the statute. 

800 Bloom v. Bubdigk. [New York» 


Hsnts CD an application to sell real estate is jurisdictionaL If such ap- 
pointment is not made, the order of sale is void. 
Statxttobt Authobitt by which a man may be deprived of his estate most 
be strictly pnrsaed. 

Ejeotmekt. The premises formerly belonged to Heniy Bloom, 
who died seised thereof in 1818. He had nine children, of whom 
four were infants at the date of his decease. These four were 
the plaintiffs in the present suit. The defendants attempted to 
deraign title through a surrogate's sale. The objections to the 
sale and the defects in the proceedings appear from the opinion. 
The petition for the order of sale was without date or mark of 
filing. It stated that the administrators had " made a just and 
true inventory of all the goods, chattels, and credits of the es- 
tate of the said Henry Bloom, and also an estimate of the debts 
of the estate, all which, duly authenticated, is on file in the 
office of said surrogate," and that the personal estate was not 
siifficient to pay debts. The surrogate by whom this petition 
was heard and granted, having died prior to the trial of the 
present cause, such of the papers as could be found were pro- 
duced by his successor in office. The inventoiy produced was 
dated Februaiy 21, 1819. On its back was an imdated certificate 
by two appraisers that it was a true appraisal of the property of 
the deceased. The appraisers' oath annexed to the inventory was 
dated September 11, 1819. The oath of the administrators to the 
truth of the inventory was taken before the surrogate, but bore 
no date. The inventory showed goods and chattels appraised at 
six hundred and forty-nine dollars and eighty-one cents, and j 

debts due amounting to three hundred and seventy-three dol- 
lars and fifty-six cents. An account and estimate showed debts 
of estate aggregating two thousand two hundred and thirty-five 
dollars and thirty-seven cents, and that the excess of the debts 
due, over the personal estate, was one thousand two hundred 
and twelve dollars. This account was verified by the oath of 
one of the administrators, taken May 11, 1820. On June 26, 
1840, an order of sale was entered. No order appointing a 
guardian for the minors could be found. 

The judge directed the jury to find for the plaintiffs; and the 
jury having so found, the defendant moved to set the yerdict 

C. Humphrey, for the defendant. 

B, Johnson, for the plaintiffs. 

Jan. 1841.] Bloom v. Bubdice. 301 

By Court, Bbokbon, J. As the judge did not specify on what 
particular ground he held the sale under the surrogate's order 
Toid, it will be proper to examine the several objections which 
have been urged against the validify of the sale, on the argu- 
ment. The counsel for the plaintiffs insists that the sale was 
void, on several grounds: 

' 1. It is said Uiat administration was not duly granted, be- 

cause there was but one surely to the bond. The tenth section 
of the act of 1813 provides, that the surrogate shall, upon grant- 
ing administration of the goods of any person dying intestate, 
take of the person or persons to whom such administration shall 
be granted, sufficient bonds to the x>eople of this state, with two 
or more competent sureties: 1 E. S. 447, sec. 10. The duty 
of the surrogate is plain, but the omission to take two or more 
sureties is not a matter which goes to the foundation of the pro- 
ceeding, so as to render the letters of administration void. Only 
two things were essential to the jurisdiction of the surrogate in 
granting administration, to wit, the death of the intestate, and 
the fact that at, or immediately previous to his death, he was an 

s inhabitant of the same counfy with the siurogate: Sec. 3. 11 

those facts existed in this case, which is not denied, the surro- 
gate had authority to act, and the omission to take a proper 
bond, was an error to be corrected on appeal: Sec. 32; and not 
a defect of jurisdiction which would render the whole proceed- 
ing void. 

2. It is said, that the application for a sale of the real estate 
was not accompanied by an account of the personal estate and 

» debts of the intestate: that instead of an account made at that 

time of the personal estate, reference was had to the usual in- 
ventory which had been previously filed. This is an important 
point, because a petition and account are essential to the sur- 
rogate's jurisdiction in ordering a sale. The administrator is 
in all cases to make and exhibit an inventory of the personal 

^ estate, within six months after the grant of administration: Sec. 

\ 10. And without any reference to that provision, he must ac- 

"^ company his petition for a sale of land by an account of the 

personal estate and debts, as far as he can discover the same: 
Sees. 23, 26. If the general inventory had been previously filed, 
and there was no account beyond a reference to that document, 
it would not, I think, be sufficient, and the order to sell could 
not be supported. I have already remarked, that the require- 
ment of an account is wholly independent of that relating to 
kh.e inventory; the one must be furnished, although the other 

802 Bloom v. Bukdick. [New York, 

may be on file. Theie is good reason for such a role. The ad- 
ninistrator, before the application for a sale, may have dis- 
covered personal estate of the intestate, of which he had no 
knowledge at the time the inventoiy was filed; debts due the 
intestate, which were deemed bad at the time of making the in- 
Tentoiy, may have proved available, either in whole or in part; 
and property, which was appraised, may have advanced in value. 
It is therefore proper, as well as a plain requirement of the stat- 
ute, that there should, in all cases, be an account at the time of 
the application for a sale of real estate. 

But if an account is in fact presented, it can do no harm that 
it receives the name of inventory, instead of account. Nor do I 
think it necessary that there should be two separate dociunents, 
in a case where the common inventory is presented at the time 
of applying for a sale. When the inventory comes in at that 
time, it must necessarily contain the same matter that would 
appear by such an account as is mentioned in the twenty-third 
section; and one document may well answer the double purpose 
of inventory and account. 

It becomes therefore important to inquire, when the in- 
ventory in this CEkse was filed. It is dated in February, 1819; 
but it seems quite probable that it was not filed at that time, 
because there is an oath of the appraisers appended to it, which 
was sworn before the surrogate on the eleventh of September 
following. It may not have been filed on the last-mentioned 
day; for the oath then made was not to the truth of the inven- 
tory, as though that document had already been prepared, but 
the oath of each appraiser was, that " I will truly, honestiy, and 
impartially appraise," etc. An account or estimate of the debts 
to be paid, was evidentiy presented to the surrogate at the time 
of applying for a sale. An affidavit of one of the administra- 
tors, purporting to have been sworn on the eleventh of May, 
1820, the day before the order to showcause, was subjoined to this 
account, and the jurat was in the handwriting of the surrogate, 
though his name was not subscribed to it. The petition for a 
sale speaks of the inventory of the personal estate and this ac- 
count of debts in terms which, to say the least, can not be made 
to imply that they were presented or filed at different times. 
There is, on the one side, little or no evidence to prove that the 
inventory was filed before making the order to show cause, and 
on the other, there is some evidence tending to show that it was 
filed at that time. And here the presumption that every officer 
does his duty, may, perhaps, be entitled to some weight: Ford 

Jan. 1841.] Bloom v. Bubdick. 803 

T. Wahworih, 19 Wend. 334; and would aid ibe conclusion, 
that the inventoiy was presented at the proper time for sustain- 
ing the jurisdiction of the surrogate. I do not think, however, 
that much importance should be given to that presumption, 
where, as in this case, it is resorted to for the purpose of making 
out a vital jurisdictional fact. But without it, there was some 
\ evidence for the jury. What they would have said, as to the 

' time of filing the inventoiy, if the question had been submitted 

to them, I will not attempt to conjecture. I have only noticed 
^ the evidence &r enough to show that there was a question for 

the jury; and it follows, that if the judge based his decision 
against the validity of the sale, on the ground that there was 
no account, there must be a new trial. 

3. The next objection is, that before petitioning for a sale, 
I the administrators had not applied the personal estate which 

had come to their hands towards the payment of the debts of 
the intestate. An inventoiy must be filed before asking for a sale, 
but it is enough if the personal estate has been applied to the 
payment of debts before a sale is ordered. The application 
may be made between the order to show cause, and the final 
order for sale: Sec. 26. In this case the amount of debts to be 
pud was two thousand two hundred and thirty-five dollars and 

') thirty-seven cents; the personal estate amounted to one thou- 

sand and twenty-three dollars and thirty-seven cents : the balance, 
one thousand two hundred and twelve dollars, was struck by 
the surrogate, and probably at the time the petition was pre- 
sented. In the order for a sale, the surrogate adjudges, that 
the personal estate was insufiicient for the payment of debts, 

^ and that there yet remained due and unpaid of the debts, be- 

sides costs, the sum of one thousand two himdred and twelve 
dollars, which is the precise amoimt of debt that would remain 
unpaid if all the personal estate had been previously applied to 
that object. There is, therefore, some reason for believing that 
the personal estate had been properly applied before the order 
for a sale was made. 

4. It is also objected, that nothing passed by the sale, in con- 
sequence of the defective and imperfect description of the land 
in the surrogate's order, and in the administrator's deed: Sec. 
23. If there was nothing in the case beyond the words, 
" being ninety-one acres of the south-west comer of lot number 
eleven," there would be some difficulty in saying that all of the 
land passed which is in controversy in this suit. The descrip- 
tion would be best answered by laying out ninety-one acres in a 

304 Bloom v. Burdick. [New York, 

sqnaie form on the south-west comer of the lot, which would 
not include more than forty acres of the land of the intestate, 
and would include about fiftj acres of land belonging to some 
other person. But there is, I think, enough in the case to help 
the purchaser out of this difficulty. It was an order for the sale 
of the real estate of which Henry Bloom died seised, and there 
were to be nineiy-one acres in a specified lot. The intestate 
owned precisely that quantity of land, and no more, in the des- 
ignated lot, and his land touched the south-west comer of the 
lot, though it did not lie in a square form. The surrogate oti- 
dently had in view the particular parcel of land which the intes- 
tate owned in lot number eleven. The matter must have been 
well understood by all of the parties in interest, and I think the 
whole of the land in controversy might well pass by the deed. 

5. If there was ground for imputing fraud to Abraham Bloom, 
the purchaser, that was a question of fact for the jury. 

6. As the defendant did not enter under the plaintiffs, he was 
at liberty to show a title out of them, although he did not con- 
nect himself with that title. 

7. The only remaining question is, whether the plaintiffs, who 
were infants at the time of the proceedings before the surrogate, 
and for whom no guardian was appointed, are concluded by the 
sale. We have been referred to the cases of Jackson v. Bobinsan, 
4 Wend. 436, and Jackson v. Crawfords, 12 Id. 533, as deciding 
the point against the infant heirs. But I have been unable to 
discover that this question was involved, or even mentioned, in 
Jackson v. Ecbinson; and the decision in Jackson v. Craufords^ 
turned upon another ground. The objection was taken, in that 
case, that no guardian ad litem had been appointed for the in- 
fants ; but such evidence was given in relation to what was done 
before the surrogate, and the probable loss of a portion of the 
papers, that the judge told the jury they would be warranted in 
presuming that all necessary proceedings had been duly had be- 
fore the surrogate, and that guardians for the infant heirs had 
been duly appointed. On a motion for a new trial, Sutherland, 
J., who delivered the opinion of the court, said, '' the parol evi- 
dence fully warrants the conclusion, that all the proceedings 
before the surrogate were strictly formal and regular." And 
again, " the presiunption of the entire regularity of those pro- 
ceedings is strengthened by the long acquiescence of the heirs 
at law." In the case at bar, although there is evidence enough 
that this business was loosely done, there is no evidence tend- 
ing to show the loss of papers, and no foundation has been laid 

Jan. 1841.] Bloom v. Burdick. 306 

for presiiming the appointment of a guardian. It is in proof, 
that none "was appointed, so far as appears from the records and 
papers in the surrogate's office. This is then a case -where the 
question is directly and necessarily presented, and that too for 
the first time, so far as I have observed, whether infant heirs 
can be concluded under this statute without a guardian to ap- 
pear for, and take care of their interests. 

The surrogate undoubtedly acqtured jurisdiction of the sub- 
ject-matter, on the presentation of the petition and account; 
but that was not enough. It was also necessary that he should 
acquire jurisdiction over the persons to be affected by the sale. 
It is a cardinal principle in the administration of justice, that no 
man can be condemned or divested of his right, until he has had 
the opportunity of being heard. He must, either by serving 
process, publishing notice, appointing a guardian, or in some 
other way, be brought into court; and if judgment is rendered 
against him before that is done, the proceeding will be as utterly 
void as though the court had undertaken to act where the sub- 
ject-matter was not within its cognizance : Borden v. Filch, 15 
Johns. 121 [8 Am. Dec. 225]; Bigelow v. Steams, 19 Id. 39 
(10 Am. Dec. 189]; MiUs v. Martin, 19 Id. 7. This is the 
rule in relation to all courts, with only this difference, that the 
jurisdiction of a superior court will be presumed until the con- 
txary appears; whereas an inferior court, and those claiming 
under its authority, must show that it had jurisdiction: Foot v. 
Stevens, 17 Wend. 483; Hart v. Seixas, 21 Id. 40. The surro- 
gate's court is one of inferior jurisdiction; it is a mere creature 
of the statute: Dakin v. Hudson, 6 Cow. 221. Indeed, it has 
been held in all the cases relating to surrogates' sales, that the 
person claiming under them must show affirmatively that the 
officer had acquired jurisdiction. The distinction between supe- 
rior and inferior courts is not of much importance in this par- 
ticular case, for whenever it appears that there was a want of 
jurisdiction, the judgment vTiU be void, in whatever court it was 

It is not only a general principle in the law, that courts must 
acquire jurisdiction over the persons to be affected .by their 
judgments, but in relation to these sales the statute has specially 
pointed out the means, and imposed the duty, of bringing the 
proper parties before the court. The surrogate, when the subject 
lias been properly presented to him, must in the first place make an 
order directing all persons interested in the estate to appear be- 
fore him at a certain day and place, to show cause why the real 

Am. Dso. Vol. XXXVn— 20 

806 Bloom v, Bukdick. [New York. 

estate shoald not be sold for the payment of debts; and this 
order must be published in two newspapers for four weeks suc- 
oessiyely: Sec. 23. This notice serves the purpose of bring- 
ing in all such persons as the law presumes capable of taking 
the charge of their own interests, and defending themselves in 
courts of justice; but it does not include infant heirs and 
devisees. The thirty-first section was made for their protection; 
and it provides, " that in all cases where a petition shall be pre- 
sented by any executors or administrators, for the sale of the 
whole or part of the real estate of their testator or intestate, and 
one or more of the devisees or heirs of such testator or intestate 
shall be infants, the judge of the court of probates or the surro- 
gate to whom the same may be presented, shall appoint some 
discreet and substantial freeholder a guardian of such infant or 
infants, for the sole purpose of appearing for, and taking care of 
the interest of such infants, in the proceedings therein." This 
mode of bringing in the infant heirs was not pursued, and the 
plaintiffs have had no day in court. Without it, they can not 
be deprived of their inheritance. 

The cases to which I have already referred have settled a 
principle decisive of this question. But I will mention a few 
other decisions, for the purpose of showing that the prescribed 
form for obtaining jurisdiction of the person, whatever that form 
may be, must be strictly pursued. In the MaUer of Underwood^ 
3 Cow. 59, the creditors of an insolvent debtor were to be 
brought in by the publication of a notice for ten weeks, and it 
was held, that the judge had no jurisdiction to grant a discharge 
where the notice had been published only six weeks. In Den- 
ning V. Conoin, 11 Wend. 647, a judgment of this court, in par- 
tition, was held void, because it did not appear by the record 
that the notice required by the statute in the case of unknown 
owners had been duly published. This case, so far as it asserts 
the doctrine that the judgment of a superior court will be void 
if the record do not show jurisdiction, has been overruled: 
Foot V. Stevens, 17 Wend. 483; Hart v. Seixas, 21 Id. 40. But 
the principle remains untouched, that whenever the want of 
jurisdiction appears, the judgments of any and all courts will be 
void; and when the party in interest is to be brought in by 
means of a public notice, the want of such notice will be a fatal 

In Messinger v. Kininer, 4 Binn. 97, a decree of the orphans' 
court was held void as against infants, for whom no guardian 
had been appointed pursuant to the statute. In Smith v. Eice^ 

Jan. 1841.] Bloom u Burdick. 307 

11 Mass. 507, the statute required that the judge of the court 
of probates should appoint guardians for infants, and Bon»e dis- 
creet person to represent a parly out of the state, and for want 
of such appointment, the proceedings were held to be void. 
This decision was fully approved in Proctor v. NewhaUy 17 Id. 
91. The rule that there must be jurisdiction of the person, as 
well as the subject-matter, has been steadily upheld by the 
courts; and it can not be relaxed without opening a door to the 
greatest injustice and oppression. 

In every form in which the question has arisen, it has been 
held, that a statute authority by which a man may be deprived 
of his estate must be strictly pursued. In Thatcher v. Powell, 
6 Wheat. 119, Marshall, C. J., said, it was a self-evident proposi- 
tion, that no individual or public officer can sell and convey a good 
title to the land of another, unless authorized so to do by express 
law; and the person invested with such a power, must pursue with 
precision the course prescribed by law, or his act will be in- 
valid. In accordance with this doctrine, the case of Jackson v. 
Esty, 7 Wend. 148, was decided. Savage, C. J., there says, " it 
is a cardinal principle that a man shall not be divested of his 
property but by his own acts, or the operation of law; and 
where proceedings are instituted to change the title to real 
estate by operation of law, the requirements of the law under 
which the proceedings are had , must be strictly pursued. " In Rea 
V. McEachron, 13 Wend. 465 [28 Am. Dec. 471], a sale under 
this statute was held void for want of an order of confirmation 
by the surrogate; and in Atkins v. Rinnan, 20 Wend. 241 
[32 Am. Dec. 534], the deed to the purchaser was held void, be- 
cause it did not set forth at large, as the statute requires, the 
order of sale made by the surrogate. See also Jackson v. 
Shepard, 7 Cow. 88 [17 Am. Dec. 502]; Williams v. Peyton, 
4 Wheat. 77. 

The rule which requires a strict compliance with a statute 
authority under which a man may be deprived of his estate, is 
one of a most salutary tendency; and this is a much stronger 
case for its application than some of those which have been 
* mentioned. I do not intend to say that there was any fraud in 
procuring this sale. That was a question for the jury. But I 
can not forbear to remark, that there were circumstances well 
calculated to awaken suspicion that all was not right; and if 
there had been a compliance with the statute, by appointiag a 
guardian to appear and take care of the interest of the infant 
heirs, I think it far from being clear that their land would have 

308 Bloom v, Burdick. [New York, 

been sold. But however that may be, they could only be de* 
prived of their inheritance by pursuing the forms presczibed bj 

It is said that the plaintiffs had a remedy by appeal; and it is 
true that the statute gives a parly claiming to be aggrieved fif- 
teen days to appeal from a decree or order of the surrogate: 
Sec. 32. But this argument was well answered by Jackson, J., 
in Smith v. Eice, 11 Mass. 512. He says, ** the very grievance 
complained of is, that the party had no notice of the pendency 
of the cause, and of course no opportunity to* appeal." He 
then proceeds to show, that when the judge of probate under- 
takes to determine the rights of parties over whom, for the want 
of notice, he has not acquired jurisdiction, and the parties have 
had no opportunity to appeal, they may consider the act or de- 
cree as utterly void. 

When the proceedings are at common law, and an infant ap- 
pears by attorney instead of guardian, or, after being served 
with process, suffers a default, the judgment will be erroneous— 
not void. But here there has been neither service of process 
nor appearance in any form. The judgment would have been 
void had the proceedings been at the common law; and it is 
clearly so in this case, where the defendant is attempting to 
build up a title under a statute, without complying with its 

New trial denied. 

Any Act of a Coubt ik a Matter over which it haa not aoqoired juria- 
diction is a nullity: Ferguson v. Crawford^ 70 N. Y. 264; Adams v. SaunU/offa 
ds W, R, R, Co,, 10 Id. 333; Dotij v. Broum, 4 How. Pr. 430; Vtssdier v. Hmd' 
mm R, R, Co,, 5 Barb. 46. Or, aa it ia sometimes expressed when it is meant to 
say that jurisdiction over the person of tlie defendant must be acquired, no 
person can be divested in a court of justice of any right unless, by notice hav- 
ing been previously given to him of the proceedings, an opportunity has been 
aflfordecl him of being heard therein: Williams v. Van Valkenburg, 16 How. 
Pr. 147; People v. Sutherland, Id. 104. In this respect these cases recognize 
no distinction between courts of general and those of inferior jurisdiction. 
There is, however, a presumption indulged that the jurisdictional facts nec- 
essary to authorize the judgments and decrees of the courts of the former 
kind existed: See the cases cited above, and Hutchinson v. Brand, 6 Id. 74; 
though the presumption may be rebutted: Id. AVhereas, wherever a right ii 
claimed under the decree of a court of inferior jurisdiction, it is incumbent 
upon the claimant to prove affirmatively the jurisdictional facts: Harrington 
V. People, 6 Barb. 610. The surrogate's court being one of inferior jurisdic- 
tion, this rule applies to claimants under their decrees: Mahoney v. Ounter^ 
10 Abb. Pr. 437; C(/rwin v. MerriU, 3 Barb. 343; Ackley v. Dygert, 33 Id. 191; 
Buhle V. Sherman, 10 Bos. 305; Sibley v. Waffiey, 16 N. Y. 190; see also tha 
parallel ease of Atkms v. Kinnan, 32 Am. Deo. 534 and note. 

May, 1841.] Putnam u Wise. 309 

Ibbeoulabtfiss and Eebobs of JuDausNT in a proceeding over which a 
ooart has acquired jariadiction, can not be taken advantage of in a coUateral 
proceeding, even though the conrt be one of inferior jnrisdietioD: Sheldon v. 
WriglUt 7 Barb. 42; S. C, 5 N. Y. 511; Lamenet v. Parsons, 27 How. 9; Peo- 
fiU V. Balsey, 37 N. Y. 346; Hkhmond v. Foote, 3 Lans. 252; Van Benasdaer 
V. CoUreU, 7 Barb. 129; S. C, 4 How. Pr. 378; Wilkiming v. Schmale, 1 
Hilt. 264; Van Renssdaer v. WUbeck, 7 Barb. 142; S. C, 4 How. Pr. 388. 


TATB it 18 neceaaaay that an accoont ahoold be presented with the petition: 
Schneider v. Mclhrland, 4 Barb. 144; SmcUl v. CromweUy H. & D. 155; Van 
Nostrand v. WrigJU, Id. 262; and if the heirs are infants, the appointment of 
a guardian is equally essential: Chandler v. Nwihrop, 24 Barb. 132; Havens 
V. Sherman, 42 Id. 040; Schneider v. Mclhrland, 2 N. Y. 461. 

To THB ExBSCiSB OF A Statxtte AUTHORITY by which a person may be de- 
prived of his estate, it is necessary that every prerequisite should have beem 
strictly complied with. An instance is afforded where lands are sold for- 
taxes: LeggeU v. Boners, Barb. 411; Cruger v. Dougherty, 43 N. Y. 120;; 
HvJbheU v. Weldon, H. & D. 145; but the rule is not confined to this authority;; 
it is of general application: Btings v. Mcintosh, 23 Barb. 599; Robinson v. 
Ryan, 25 N. Y. 324; Lou> v. Purdy, 2 Lans. 424; Sherwood v. Reade, 7 Hill, 
433; Men-iU v. Port Chester, 71 N. Y. 312. There is, however, this qualifica- 
oation, that if something has been omitted which was manifestly inserted not 
for the benefit of the party whose estate is divested, but of some other person, 
he shall not be heard to complain: AUen v. Commissioners, 38 Id. 318; se^ 
also Atkms v. Xinnan, 32 Am. Dec. 534, and note 540. 

Perhaps to this head may best be referred the cases which hold that where 
a statute prescribes the mode by which jurisdiction may be acquired, it must 
be strictly pursued or the proceeding will be a nullity: People v. Board o/ 
PM:e, 6 Abb. 164; 26 Barb. 485; Van Slyke v. Shelden, 9 Id. 284; Stantm v. 
MUs, 16 Id. 323; Bi^alo df S. L. R, R. Co, v. JSiHe Co,, 48 N. Y. 09; People 
V. Spencer, 55 Id. 4; Brown v. Mayor of New York, 6 T. & C. 166. 

TiTLB IN A Third Pbrson is a defense to an action of ejectment: l%nkham 
V. Erie R. Co., 53 Barb. 396. 

Putnam v. Wise. 

(1 HiLi.. 234.] 

Lr JjAJSD is Oocupiep on the Shares, and the occupiers covenant to yield 
and pay to the owners one half of all the grain raised on the farm, to be 
delivered at a place designated, and one of the occupiers afterwards 
enters into an agreement with other persons to do certain work and to 
receive therefor one third of such occupier's share, all the parties are, 
nntil the grain is delivered and divided, tenants in common thereof, and 
not partnen. 

If Okb Tbnant in common Sbll thb Common Profertt, his co-tenants may 
adopt the sale, and all the co-tenants may join in an action therefor in 
assumpsit for goods sold and delivered. 

liRTiNO ON THB Sharbs FOR A SiNOLB Crof makes the parties tenants in 
common thereof. 

PRiviucoB OF Pbrsons Occuftino Land on thb Shares to have a renewal 
of their contract for a second year, does not change their contract into 

310 Putnam v. Wise. [New York, 

one of leasing, so aa to deprive the owners of their interest aa part owners 
or oo-tenants of the crops raised. 

CovxKANT TO Pat A FixsD QuAMTiTT OF Whbat or othsT products of a farm 
for the use thereof, does not give the lessor any present interest in such 

Contract to Rxndxr a Moiett of the Pboductb of a Fabk for the use 
thereof, though oontainiog apt words to make a lease, will not be oom- 
strued as a leasing with a reservation of rent, but as a letting on the 
shares, which results in both owner and occupier having a pre s e nt Inter- 
est as tenants in common of the crop. 

Assumpsit. Collins and Famam, being the owners of a tract 
of land, entered into an agreement, under seal, with Melendy and 
Edward Putnam, whereby the former purported " to lease and 
to farm let" such lands to the latter, and the latter, in considera- 
tion of the use of the land, covenanted " to yield, pay, and give 
one half of all the grain raised on the said farm, to be delivered 
at," etc. The contract contained other provisions, which suffi- 
ciently appear in the opinion of the court. Afterwards Edward 
Putnam entered into an agreement with S. S. and H. L. Putnam, 
by which the latter were to do certain work and furnish certain 
teams, and each to be entitled to one third of Edward Putnam's 
share of the crops, etc. Certain wheat raised on the farm was 
in 1838 sold by Edward Putnam to defendant Wise. It was 
afterwards delivered by Melendy and Edward and H. L. Putnam. 
The defendant claimed to have purchased as agent of one Bogart. 
On this point the evidence was conflicting. This action was 
brought by Collins, Famam, Melendy, and Edward, S. S., and 
H. L. Putnam. The referee reported in favor of plaintifib. De* 
f endant moved to set aside the report. 

D. B, Prosser, for the defendant. 

H. Welles, for the plaintiffs. 

By Court, Cowen, J. Whether the defendant purchased the 
wheat for himself or as agent of Bogert, was a question of fact 
for the referee, and the report should not be set aside as being 
against the weight of evidence in this respect. The other ques- 
tion is, whether the plaintiffs were joint owners of the wheat. 
There is no doubt that Edward Putnam might sell to the other 
two Putnams any share of the interest he held, which he might 
think proper; and there was sufficient evidence that he did sell 
to them such an interest as made them tenants in common with 
himself in the wheat in question. Edward Putnam and Melendy 
were the occupiers. They arranged that Edward Putnam should 
take two thirds of the products to be divided; and, by the sub- 

May, 1841.] Putnam v. Wise. 311 

contract, Edward let in the two younger P^tnams to two thirds 
of his share. The agreement was, that they were to work so and 
BO, and *' each have and be entitled to one third of his, said 
Edward's, share," etc. There is evidence on which the referee 
might say there was a full performance by all the contractors 
and subcontractors. Eveiything seems, as between them, to 
have gone on harmoniously. 

It is said, that Edward Putnam had no right to let in two 
additional partners, without the consent of all four of the original 
contractors. That is true, if they were. partners. One partner 
can not receive another into the firm without the consent of all: 
Kingman v. Spurr, 7 Pick. 235, 237, 238; Murray v. Kneeland, 
14 Johns. 318, 322. Independently of Collins and Famam's 
(the owners') consent, the two subcontractors, S. S. and H. L. 
Putnam, would have become partners, only as between them- 
selves and Edward Putnam: Ex parte Barrow, in the matter of 
Slyih, 2 Hose's Gas. Bankruptcy, 252, 254, 255; Colly, on Partn. 
8, Am. ed. of 1839. But there was evidence from which the 
referee might infer the assent of the other contractors. No 
doubt all must have known of the subcontract, and all have 
chosen finally to adopt it, by joining in this action for the price 
of the wheat: Vide MatUe v. Duke of Beaufort^ 1 Buss. Ch. 349, 
and 7 Pick. 238, 239.» 

So far, I have assumed that the original contract, under which 
the farm was to be worked, created a partnership between the 
parties; but it did not. It looked merely to the ownership of 
the products, and not to a sale. We shall see in the sequel that 
the parties concerned were all tenants in common of these pro- 
ducts; but in effect, it viras certainly not more than a joint pur- 
chase. Had there been a provision for a joint sale, or joint 
commercial dealing in the products of the farm, or in carrying 
it on, it might have been different : Colly. , lU supra, 23, 303. But 
there was not. Even a joint purchase of personal property does 
not make a partnership: Colly, on Partn. 8 a, 10-12, ed. of 1839. 
Such a purchase is said to create only a tenancy in common: 
Jackson v. Bobinson, 3 Mason, 138, 141. But this is even less. 
It was, in effect, that one side should occupy the farm, and 
divide the crops, taking their share as a compensation for their 
labor. An agreement by two, to perform a job of work, the 
compensation money to be equally divided, does not make a 
partnership: Colly., xd supra, 12. Here was to be a division of 

the gross earnings of the farm; and in such a case, even had the 

' ■'^— ^^ ~ " ' " ' 

1. KUiffwum T. Spmr, 

312 Putnam u Wisb. [New Torkj 

anangement been to sell the crops in common, and divide the 
money, this would not have been, within the law of partnership, 
a sharing of profit and loss. A., owning a sawmill, agreed 
with B. to work it and divide the gross earnings equally. Held, 
not partners: Ambler v. Bradley ^ 6 Yt. 119. Phelps, J., said: 
" They never shared in profit and loss. The share which the 
occupier received, was a mere compensation for his labor. This 
point has been often determined:" Bowman v. Bailey, 10 Id. 
170; S. P., vide also Rich v. Penfidd, 1 Wend. 380, 384, 385, and 
Ixxmui V. Marshall, 12 Conn. 69 [30 Am. Dec. 596]. 

A sale by joint tenants or tenants in conmion maybe made before 
severance of the property, by all actually joining in the sale, or it 
may be made by one for the benefit of all, and, in the latter case, 
the sale being recognized and adopted by the others, becomes 
an original sale by all: Per Daggett, J., in OviaU v. Sage, 7 
Conn. 99. The consideration may then be said to move f rojn 
all jointiy, whether tenants in common or joint tenants: Ham. 
on Parties to Actions, p. 18, London ed. of 1817; Vattx v. /Pro- 
per, Sty. 156, 157, 203;' BeU v. Chaplain, Hardr. 321; Bowman 
V. Bailey, 10 Yem. 170, 172. If the defendant had taken the 
wheat tortiously, the owners, though but tenants in common, 
must all have joined in trover, or they might, according to the 
well-known right of election in such cases, all have brought 
assiunpsit for goods sold and delivered. A fortiori may they do 
this, though the property have, in fact, been sold by one only. 

We have, so far, assumed that all the plaintiffs were common 
owners of the wheat. I have shown that Selam S. and H. S. 
Putnam were, properly considered, at least, common owners 
with Edward Putnam and Melendy. It is equally clear that all 
were also common owners with Fomam and Collins, provided 
the original contract was, in legal effect, a mere letting on 
shares. If a technical lease, they were not; and I do not see any 
evidence, independent of the contract, which will make the 
ownership of the wheat common between the owners and occu- 
piers. It therefore becomes necessary to examine the legal effect 
of the contract. Its words are in nearly the common form of a 
lease. The owners " have, and by these presents do lease 
and to farm let, all said land, to the said parties of the second 
part;" and in consideration, etc., the parties of the second part 
covenant with the owners, " to yield, and pay, and give to them 
one half of all the grain raised by them [the occupiers] on said 
farm, to be delivered at," etc., fixing the place. 

1. Vavao ▼. Steward, Sty. 166, 167 1 Vaua ▼. Draper, Id. 203. 


May, 1841.] Putnam v. Wise. 313 

The owners were to keep a certain number of sheep on the 
farm, to be fed by the occupiers, furnish plaister, one half the 
grain and grass seed, etc. : The occupiers to have one half the 
wool, and to deliver the other half on the premises in good or- 
der. Various provisions were inserted, as to the mode in which 
the occupiers were to cultivate the farm. There is no evidence 
which required the referee to say, that the wheat in question had 
been actually severed, so as to be known as that of the owners 
or occupiers. On the contrary, he was entitled to say on the 
evidence, and so doubtless he concluded, that the defendant 
purchased the wheat as that grown on the farm, and received it 
without any division having been made. That being so, if the 
construction contended for by the defendant be correct, the al- 
leged lessors were improperly made plaintiffs; and such a mis- 
joinder will be fatal to this action. 

The contract was under the seals of both the owners and occu- 
piers, and if the right of the former to their share of the grain 
lay either in covenant simply, or in render, as it is technically 
called, they could take no present interest till severance and de- 
livery at the place appointed. In such case the rule would ap- 
ply, that so long as anything remsdns to be done by the vendor, 
such as measuring, weighing, etc., the property in tiie goods sold 
does not pass. • And, indeed, whether the property in the wheat 
had passed or not, the objection would be equally fatal to the 
action. If it had passed, each of the parties owned in severalty, 
and should have sued for their respective shares. If not, the 
objection recurs, that the whole belonged to the occupiers, and 
adding the owners' names was a misjoinder of parties. 

Taking the words of this contract according to their technical 
meaning, there is no doubt that they carried, on the one hand, 
an exclusive possession and interest in the land to the occupiers, 
with a right equally exclusive to the emblements. And had the 
rent consisted in any certain amount of grain and wool, in 
bushels or pounds, without saying from the farm, the owners 
could have claimed no property in either till delivery, or at least 
till a tender made. The occupiers might have maintained eject- 
ment, even against the owners, during the term, and put them 
to their action of covenant as a remedy for their rent 

But it is insisted that inasmuch as the shares of the owners in 
the farm products were uncertain in amount, this made the par- 
ties tenants in common, at least in the productions thus to be 
grown and shared between them. That has been long and re- 
peatedly held in respect to a letting on shares for a single crop: 

314 Putnam v. Wise [New York, 

Ear? y, Celey, Cro. Eliz. 143; Spencer, J., in Ibote t. Colvin^ 3 
Johns. 216, 221 [3 Am. Dec. 478]; Bradi^ v. Schenck, 8 Id. 
151; De MM t. Hagerman, 8 Cow. 220 [18 Am. Dec. 443]; 
Bishop T. Doty, 1 Yt. 37; and vide Chandler t. ThwrsU>ny 10 
Pick. 205. So for a single year, the share of the several crops 
to be measured and rendered by the occupier, on the premises: 
Caswell T. Districhf 15 Wend. 379. In some of these cases, it 
was said there were not any such clear words of demise but that 
it was left open to pronounce the agreement general, to work on 
shares. It is obvious that the contract for the occupier to 
divide and render the owner's share by measure on the premises, 
was meant for no more than what the law would require to be 
done in some form, at least what is commonly done, by way of 
severing the interest of common owners in personal property. 
The contract between the parties was therefore not allowed to 
operate as a lease, the court saying in some of the cases, that 
where the question is open, the construction more beneficial for 
both parties is, that they meant to hold in common: Seep^ 
Spencer, J., in Ibote v. Colvin, 3 Johns. 216, 221 [3 Am. Dec. 
478] ; and especially per Nelson, J. , in CasweU v. Districh, before 

The subcontract, mentioned in the report of the referee, be- 
tween the Putnams, would come clearly within these cases, and 
as we have seen, make them tenants in common with the occu- 
piers; for though the first contract contained a provision that it 
might continue for more than one year, and the subcontract 
was the same, yet the provision was but in the nature of a re- 
letting for the crop of the second year. Beside, although the 
cases seem to suppose, that in order to save the rights of the 
parties as tenants in common, the letting should be for only a 
single crop, or, which is about the same thing in this countiy, 
a single year, it is difficult to perceive why the same form of 
contract for two or more years would not continue the relation 
of tenants in common for the whole time. In Bich v. Penfield, 
1 Wend. 380, 384, 385, the parties, owner and occupier, continued 
the working of a mill on shares for several years, and Suther- 
land, J., said he inclined to consider them tenants in common. 

But to show that the relation of the parties to the original 
contract was that of lessors and lessees, and the covenant to 
deliver the grain was but an agreement to render a share by way 
of rent, we are referred to the case of Stewart v. Doughty, 9 
Johns. 108, 113. There, the words of demise and covenant to 
pay a share of the crop, were almost literally, and clearly in 

May, 1841.] Putnam v. Wise. 316 

legal effect, ihe same as here; and the contraot was held to be a 
lease. The only difference was, in the length of the term. 
There, it was five years, with a right in either party to terminate 
it on six months' notice; here, only one year, with the privilege 
in the occupiers to continue for another. The shortness of the 
term, I admit, may be evidence of an intent to hold the crop in 
common; but is that circumstance alone, able to overcome 
words of express demise and covenant to pay, which have a set- 
tled construction in the law ? Had the covenant been to pay a 
fixed quantity, as one hundred bushels of wheat, or two tons of 
hay, etc., though to come out of the produce of the farm, it 
seems to be perfectly settled that the lessor would have taken 
no present interest whatever: Dockham v. Parker, 9 Greenl. 
137 [23 Am. Dec. 547]; vide also Newcomb v. Burner , 2 Johns. 
421, in note. And there is considerable authority, which does 
not appear even to have been expressly repudiated, that a con- 
tract to render a moieiy , especially where the contract is for a cer- 
tain term, or for more than one crop, amounts to the same thing: 
Welch V. Hall, Bull. N. P. 86, Lond. ed. of 1788. Thompson 
and Livingston, JJ., in Jackson ex dem. Colden v. Broumell, 1 
Johns. 267, 270, 271 [3 Am. Dec. 326.] And see Hare v. Cctey, 
and Stewart v. Doughty, before cited. 

Welch V. HaU has long been disregarded, and probably never 
was law. It held that a contract on shares for one crop 
amounted to a lease. What veas said in Jackson ex dem» Colden 
T. BrowneU, went on the distinction between letting on shares 
for a single crop, and for a year certain. In the latter case it was 
said to be a demise, because for a year. That view was over- 
ruled in Caswell v. Districh. In the latter case the contract was 
in words of demise for one year; not in the usual technical 
terms I admit, but clearly such as, at a money rent, would have 
been construed to mean the same thing. Yet the contract was 
denied to be a lease, and the denial put on the ground that the 
payment by way of rent was in moieties, to be measured and 
given by the tenant. Mr. Justice Nelson said, ''the shares were of 
specific crops to be raised on the farm," and he adds, "this 
view of the contract should be maintained, unless otherwise 
clearly expressed." He thought the case distinguishable from 
Stewart v. Doughty, where the phraseology being that usual in 
leases, could not be got over by the agreement to pay in shares 
from the specific crops. 

With deference, I have not been able to make any substantial 
distinction in the phraseology. Independentiy of the fact that 

316 Putnam r. Wise. pjew York» 

the render "was confined to a share in the specifio crop, it wonld, 
as appears to me, in both cases, have operated to make a lease. In 
Caswell Y. Dietrich, the agreement was to let the defendant hare 
the farm for one year. These, says Woodfall, are apt words to 
make a lease (Woodf. Land. & Ten. 7, Lond. ed. 1804), and so 
it was adjudged in Whiilock v. Horton, Cro. Jac. 91. The words 
in Stewart v. Doughty were no more; but if they were, Woodfall 
says, the most proper and authentic form of words may be over- 
come by a contrary intent appearing in the deed of demise: 
Woodf. Land & Ten. 6, Lond. ed. 1804. It seems to me there- 
fore, that Stewart v. Doughty was very much shaken, not to say 
entirely overturned, by Caswell v. Districh; at any rate, that the 
question is open, whether the clearest words of present demise 
may not be considered as inuring to make a mere tenancy in 
common, under a letting like the one before us. And I am of 
opinion that they may. The compensation here lies wholly in 
shares from the farm products: in these, the owners are to be 
compensated for the use of their land, and the occupiers are to 
be paid for their labor. Indeed, as it respects the second year, 
from the crop of which the wheat in question was taken, the 
words of letting are almost identical with those in CasweU v. 
Districh, But it is a case in which we ought not to tie ourselves 
up to the consideration of mere words. The substance should 
be looked at; and that, as it would be universally imderstood 
among farmers, is an agreement between owners and occupants, 
that the latter should come in rather as servants, than tenants; 
each party taking an interest as common owners in the crops 
and other products, as they accrue, by way of compensation to 
the owners for the use of their farm, and the occupiers for their 
labor: Vide Maverick v. Lewis, 3 McC. 211. The extent of such 
compensation or interest, is to be collected from the contract: 
Vide Beaumont v. Crane, 14 Mass. 400. This may be so framed 
as to secure an exclusive interest to the owner in certain prod- 
ucts, such as the hay t<o be consumed on the farm; also an exclu- 
sive interest in the young animals to be fed there, till they come 
to be distributed. No doubt, any provision of this kind may be 
made, if not in fraud of the occupant's creditors: Lewis v. Ly- 
man, 22 Pick. 437. But there being no such provision, a com- 
mon ownership results in all products to be divided, in whatever 
form the provision may be for rendering or securing such pro- 
ducts to either party. The true test seems to lie in the question, 
whether there be any provision, in whatever form, for dividing 
the specific products of the premises. If there be, a tenancy in 

May, 1841.] Putnam v. Wise. 317 

oommon arises, at least in such products as are to be diTided. 
The occupier being a mere servant, it is said can not bring trespass 
quare clatisum /regit; but the owner only: Hare v. Celey, before 
cited; Boberison v. George, 7 N. H. 306, 308. His possession is 
that of the owner: Id., and Maverick v. Lewis, before cited. He 
has no interest in the land which he can assign, and on his 
death, the contract would be at an end: Id. All these views 
seem to foUow from Caswell v. Districh, and they are, some of 
them, ably sustained by the late case in Massachusetts: Leioia 
V. Lyman, before cited. Other cases certainly take opposite 
views: Weems v. Siallings, 2 Har. & J. 365; Uaslcins v. Rhodes, 
1 Gill & J. 266. And we have already seen, that even our own 
cases may be considered as somewhat in conflict. The more 
modem and maturely considered cases, both in this state and in 
Massachusetts, go, I think, clearly to sustain the right, both of 
the owners and occupiers, in the case before us, to be considered 
tenants in common. Though the whole be drawn up in the 
form of a lease, and a render as of rent, it is after all but another 
mode of saying, that the occupiers shall work the farm for so 
long, and divide the profits with the owners. 

It follows, that the purchase of the wheat by the defendant 
operated as a contract with all the plaintiffs, though it was made 
with only one of them. And though the whole transaction were 
conducted in his name, the evidence was quite sufficient to war- 
rant the referee in finding that he acted as agent for his co- 

The result is that the motion to set aside the report of the 
referee should be denied. 

Motion denied. 

Agreements for Cultiv'ation of Lakd on Shares. — The cases are in al- 
most hopeless conflict as to what is the trae construction of an agreement 
between the owner and the occupier of land for its cultivation on shares, 
and OS to the rights of the respective parties in the land and in the crops. 
Such contracts seem to be to a great extent unknown in England: MouUon v. 
JiobiruoJi^ 27 N. H. 550; but they are very common in this country, and each 
state seems to have adopted a view of its own as to the proper interpretation 
to be put upon them. 

Cases Holding the Parties Tenants in Common on Crop. — The doctrine 
of the later New York cases is undoubtedly that laid down in the foregoing 
opinion of Judge Cowen, and is the one adopted as preferable in Freeman on 
Co-tenancy and Partition, that "an arrangement to cultivate land on the 
sluires is not a lease," and that *'every form of agreement by which land in 
let to one who is to cultivate the same and give the owner as compensation 
therefor a share of the produce, creates a tenancy in common in the crops:** 
Freeman on Co-tenancy and Partition, sec. 100; Taylor's Land, and Ten., sec. 
24; FooU v. Colvin, 3 Am. Dec. 47S; De Mott v. Hcujerman, 18 Id. 443, and 

318 Putnam u Wise. [New York, 

cited in the note thereto; Bradish v. Schenek, 8 Johns. 151; OUb v. 
Thompton, H. & D. 131; OoJb^ry v. Schoonmaher, 15 Wend. 226; DtneAorf 
▼. FTt^Mff, 15 Barb. 595; Haarrower v. iTeo^A, 19 Id. 331. So in other states 
it is held that the parties to the agreement, in sach a case, are tenants in 
common of the crops before a division: Thompton ▼. JfatoAinn^, 17 Ala. 362; 
Smyth y. Tankersley, 20 Id. 212; WUUams v. State, 34 Ala. 167; SmUh v. 
Rice, 56 Id. 417; Bnwn v. CoaU, Id. 439; MmtUon v. RMnson, 27 N. H. 550; 
Daniels v. Brown, 34 Id. 454; Hatch v. //art, 40 Id. 93; Wentworth y. Porte- 
mouih etc, R, R. Co,, 55 Id. 546; Oueet v. Opdyhe, 31 N. J. L. 552; Staie v. 
./«ioe2/, 34 Id. 259; Cooper y. McOrew, 8 Or. 327; /Inro// v. A'ent, 4 Gill, 209; 
Fiquet y. ^Umo/i, 12 Mich. 328; Aiken v. Smith, 21 Vt 172; .fiWcm v. Col- 
hum, 28 Id. 631. Of coarstf, where besides the letting of the land the owner 
is to contribute farming implements, teams, sacks, a part or all of the seed, 
etc., there is additional reason for holding the parties tenants in common, if 
not even partners, in the crop which is to be divided between them: Bernal 
v. ffoviaua, 17 CaL 541; Walker v. lUU, 24 Pick. 191; Ddaney v. Root, 99 
Mass. 546; WelU v. HoUenbeck, 37 Mich. 504; Johnson v. Hoffman, 53 Mo. 
204; Lowe v. Miller, 3 Gratt. 205. The principle that the relation between 
owner and occupier, under a contract for cultivation on the shares, is that of 
tenant in common as to the crops, applies also where the crops are to be 
sold and the proceeds divided instead of the specific products. The point is 
whether there is to be a division: Freeman on Co-tenancy and Partition, 
sec. 101. 

It is not to be understood, however, from what is said on this subject in 
Freeman on Co-tenancy and Partition, supra, that the relations of landlord and 
tenant may not, in such a case, exist as to the land, although the parties may 
be tenants in common with respect to the crops. ^ Indeed, it is expressly 
stated in many of the cases above cited, that the contract may be a lease so 
as to create the relation of landlord and tenant so far as the land is con- 
cerned, while as to the crops there is a tenancy in common between the oc- 
cupier and owner. In the cases from New Hampshire above referred to, the 
doctrine is, that although a contract for farming land on the shares may con- 
stitute the parties to it landlord and tenant as to the land, the reservation of 
a share in the crops by the lessor is not by way of rent, although it may be 
termed rent, but is a reservation in lieu of rent, and as the lessor has a prop- 
erty in the produce of the land to that extent he is therefore a tenant in com- 
mon with the lessee as to the crops: Moulton v. Robinson, 27 N. H. 550; 
Daniels v. Brown, 34 Id. 454; Hatch v. Hart, 40 Id. 93; Wentworlh v. Ports- 
mouth etc, R. R. Co., 55 Id. 540. If, as is held in the principal case, the 
true test by which to determine whether or not there is a tenancy in com- 
mon in the crops, lies "in the question whether there be any provision in 
whatever form for dividing the specific products of the premises," it would 
seem to be wholly immaterial whether the relation between the parties as to 
the land is that of landlord and tenant or that of owner and cropper. Un- 
doubtedly, however, the parties to the contract may determine and regulate 
their rights thereunder both as to the land and as to the crops, in any manner 
that they please. 

QaES'noN Held to bb Onb of Intention. — The question as to whether or 
not the parties are landlord and tenant, or merely owner and cropper, and as 
to whether they are tenants in common of the crop before division, or whetlier 
one or the other is the exclusive owner, it is held in many cases, must be deter- 
mined by ascertaining the intention of the parties as expressed in the language 
they have used: Alwood v. Ruekman, 21 111. 200; Dixon v. NiccoUs, 39 Id. 

May, 1841.] Putnam v. Wise. 319 

372; Walls v. Preston, 26 Gftl. 59; Johnson v. HoffmcMy 53 Mo. 504. Says Eu- 
dicott, J., in Wamtr v. Abbey, 112 Mass. 355: " In constroing contracts for 
the cultivation of land at halves, it is impossible to lay down a general rule» 
applicable to all oases; because the precise nature of the interest or title be- 
tween the contracting parties must depend upon the contract itself, and very 
slight provisions in the contract may very materially affect the legal relations 
of the parties and their consequent remedies for injuries as between them- 
selves. In some cases, the owner of the land gives up the entire possession, 
in which event it is a contract in the nature of a lease with rent payable in 
kind; in other cases he continues to occupy the premises in common with the 
other party, or reserves to himself that right, and so a tenancy in common to 
that extent is created, and each is entitled to the joint possession of the crops, 
or the possession of the one is the possession of the other, until division; or 
he may retain the sole possession of the land, and the other party may have 
the right to perform the labor and receive half the crops as compensation; or 
the two parties may become tenants in common of the growing crops, while 
no tenancy in common as such exists in the land: Chandler v. Thurston, 10 
Pick. 205; WaUer v. FUts, 24 Id. 191; Merriam v. WiUis, 10 Allen, 118; 2>e- 
lamey v. Root, 99 Mass. 546; Cornell v. Dean, 105 Id. 435." 

Oasis Holdino Oocupixb to bb Tenant and Exolusivb Ownbb of Cbops 
BBFOBS Diyision. — In a large number of cases it is laid down in unmistakable 
terms that if in a contract for the cultivation of land on the shares there are 
clear words importing a present demise, or that the occupier is to have the ex- 
clusive possession of the land, or that he is to pay or deliver the owner's por- 
tion of the crops as rent, the relation between them is that of landlonl and 
tenant: Deaver v. Jfiee, 34 Am. Dec. 388; Woodruff v. Adams, 35 Id. 122; 
Walls V. Preston, 25 Gal. 59; Dixon v. Nteeolls, 39 Bl. 372; Sargent v. Cour- 
rier, 66 Id. 245; Frout v. Hardin, 56 lud. 165; Blake v. Coats, 3 G. Greene, 
548; Townsend v. Isenberger, 45 Iowa, 670; Haskins v. Rhodes, 1 Gill & J. 
266; Symonds v. Hall, 37 Me. 354; Warner v. Abbey, 112 Mass. 355; DaHing 
V. Kelly, 113 Id. 29; Hatchell v. Kirnbrough, 4 Jones, 163; WaUson v. Bryan, 
64 N. C. 764; Harrison v. Bice, 71 Id. 7; IVy v. Jones, 2 Rawle, 11; Rineliart 
V. Oltoine, 5 Watts & S. 157; Bums v. Cooper, 31 Pa. St. 426; Beam v. Har- 
nish, 45 Id. 376; see also Taylor's Land. & Ten., sec. 24, and note. In nearly 
all of these cases it is further distinctly held that the tenant under such aeon- 
tract is the sole owner, and entitled to the exclusive possession of the crops 
before the landlord's share is severed and delivered or set apart for him. So 
where there is a fixed amount made payable out of the produce of the land; 
as, so many bushels of grain or so many tons of hay: Doclcham v. Parker, 23 
Am. Dec 547. The principle upon which this holding rests is that the ten- 
ant is the owner of the soil during the term, and " he who owns the soil dur- 
ing the year owns the crop raised on it:'* Rodman, J., in WaUson v. Bryan, 
64 N. C. 764. Before division, therefore, the landlord has no leviable inter- 
est in the crop: Id. If he enters and takes possession of the crop he is liable 
to the tenant in trespass or trover: Haskins v. Bhodes, I Gill & J. 266; Blake 
V. Coats, 3 G. Greene, 548; Warner v. Abbey, 112 Mass. 355. So he is liable 
in trespass for permitting breaohy animals to break in and destroy the crop: 
Frout V. Hardin, 56 Ind. 165. The tenant, of course, may maintain trespass 
against a stranger for an injury to the land or crop without joining the lessor: 
Carkin v. Taylor, 5 Kans. 433; Darling v. Kdly, 1 13 Mass. 29. So he may 
sue third persons for pasturage without joining the lessor: Cornell v. Dean, 
105 Mass. 435. Indeed, he has, upon this view, the same rights and powers 
as to the land and crop as any tenant at a money rent. 

820 Putnam v. Wise. [New York, 

Bat even in ifaoee cases where it is held that a contract for the letting 
of land on shares m»y be constraed aleaae, it is conceded that the mere fact that 
certain terms appropriate to a leaae may be nsed, will not always control in 
determining whether the agreement is a leaae or a cropping contnu^: WaiU 
V. PretUm, 25 CaL ()9; Harruon v. Ricks, 71 N. C. 7. In the case last cited, 
Rodman, J., enters into an elaborate discussion of the qneetion as to when an 
oocnpant of a farm on the shares is to be deemed a tenant and when a mere 
cropper, and lays down these rules: " 1. If the oontrsct clearly conveys the 
land to a leasee for a term, in the absence of some contrary and controlling 
provision, the leasee is a tenant. Bat generally when the contract is oral or 
inartifidally drawn, it is left doabtf ul whether an estate in the land was in- 
tended to pass. In sach case, the intent, one way or the other, must be in- 
ferred from the other provisions of the agreement. The ose of the word * rent,' 
as that the owner has 'rented* his land to another, has by itself little weight 
in the interpretatioQ of an oral or inartificially and obscarely written contract. 
2. If the occupier is to pay a money rent, the title to the crop must neces- 
sarily be in him, in order that he may convert it into money. He is therefore 
strictly a tenant. 3. If the occupier is to pay the landlord a share of the crop 
as rent, the property in the whole must be in him in order that he may make 
the divisioD, and he is a tenant. This interpretation may, however, be con- 
trolled by other provisions; as, for example, by a positive agreement that the 
property in the whole shall be in the landlord, either that he may make the 
division, or that he may be secured by a lien. The stipulation for a Uen must 
be either void, or it must make the occupier a cropper, as it was held to do in 
StaU V. BwrweU, 63 N. 0. 661. 4. If the landlord is to divide to the occupier 
his share, the property in the whole must be in the landlord, and the occupier 
is only a cropper: Denton v. BifiMomd, 3 Jones, 61." 

This brings us to the consideration of the cases in which it has been deter- 
mined that an occupant under a cropping contract has no {ooperty in the crop 
before it is divided and his share set off to him. 

Cases Holding Occupant to be "Cropper," haying no Propkbtt nr 
Crop before Division. — A "cropper" is thus defined in Fry v. JotttB, 2 
Rawle, 11: "If one hires a man to work his farm, and gives him a share of the 
produce, he is a cropper. He has no interest in the land, and receives hii 
share as the price of his labor. " That is to say, if the general possession of the 
land remalDs in the owner, and the occupant cultivates it for a share of the 
produce as compensation, he is a cropper. The question, then, in every case 
of cultivation of land on the shares is, does the contract give the owner hii 
share as rent, or the occupant his share as compensation f If the former, ac- 
cording to the cases above cited, the occupant is a tenant; if the latter, he is 
a cropper: DeiUon v. Strickland, 3 Jones, 61; Haywood v. Rogers, 73 K. 0. 
320; Adams v. McKesson, 63 Pa. St. 81; see also Warner v. HcimngUm, 42 .Vt. 
04. In those states where a tenancy in common in the crops is not recog- 
nized, it is settled that a mere "cropper" has no property in the land or in 
crops before they are divided and his part set off to him: McNedy v. Hart, 
10 Ired. 63; Btosmt v. AnsUy, 11 Id. 12; SUOe v. Bunoell, 63 N. C. 661. He 
can not before such division convey a legal title to the share which he is to re- 
ceive under the contract: McNeely v. Hart, 10 Ired. 63. Nor can such share 
he subjected to the pajrment of his debts: Brazier v. Ansley, 1 1 Ired. 12. One 
employed to work on land for a share of the crops is a mere employee who 
may be discharged for cause: Jeter v. Penn, 28 La. An. 230; S. C, 26 Am. 
Rep. 98. 

Where a Part of the Products ib Reserved bt the Lessor to be Used 

May, 1841.] Putnam v. Wise. 321 

OK THE Farm, as where the contract stipulates that all the hay raised on the 
land shall be fed oat to the stock on the farm, although there may he provis- 
ions as to dividing the other products in certain proportions, it is clear that 
no property passes to the lessee in the part so reserved, but as to such part 
the occupant is merely the servant of the owner: Leioia v. Layman, 22 Pick. 
437; Jordan v. Staples, 57 Me. 352. Or if the occupant takes any interest 
therein, it is merely the limited right to use it in the particular manner desig- 
oated: McvlUm v. Robinson, 27 N. H. 550. In ffeald v. Builders' Ins, Co., 
Ill Mass. 38, the contract between the owner and lessee of a farm provided 
that the hay raised on the farm should be fed out to the stock thereon, and 
that the lessee should not sell, dispose of, cany the same away, or suffer it to 
he carried away, without the lessor's consent. The lessee, however, sold to a 
third person, who went into possession to carry on the farm, and did not pro- 
pose to remove the hay, or make any other use of it than that stipulated in 
the original contract It was nevertheless determined that the purchaser had 
not insurable interest in the hay. 

Stifitlationthat Psopebtt or Possession or Crop shall be in Lessor. — 
Where in a contract for the letting of land on the shares it is expressly stipu- 
lated that the property, possession, or control of the crop is to be in the lessor 
until there is a division or until the crop is sold, it is dear that, until that 
time, the lessee has no interest which he can sell or mortgage, or which can 
be taken on attachment: Pender v. Rhea, 32 Ark. 435; Wentioorth v. Miller, 
53 CaL 9; Esdon v. CoJhurn, 28 Vt. 631. A contrary conclusion was reached, 
however, in Ross v. Swaringer, 9 Ired. 481, where Pearson, C. J., holds, with 
the court below, that the crops belong to the tenant as an incident of his lease 
where the contract is a lease, and, therefore, that the lessor can not reserve 
property therein to himself; adopting the doctrine of Lord Ck>ke that " the 
lessor can not reserve parcel of the annual profits, as the vesture or herbage 
of the land or the like, for that would be repugnant to the grant." But this 
doctrihe is clearly shown to be unsound in the learned opinion of Bell, J., in 
Motdion V. RobiTison, 27 N. H. 550. Where a tenant being in arrears was 
notified by his landlord that he could not have the farm any lonprei. and there- 
upon informed the landlord that if he would let him remain a yaor longer he 
would let him have all the hops raised on the farm, and he would cure and 
bag them, it was held that the property in the hops was in the lessor, and 
that they could not be seized for the tenant's debt, thus clearly recognizing 
the principle that the property in the products of the farm may be regulated 
iy agreement between the parties: KeUey v. Weston, 20 Me. 232. 

Whether Owner and Occupier Mat be Partners in Products of 
Farm. — Undoubtedly, as laid down4n the principal case, an ordinary agree- 
ment between the owner of land and the occupiers or persons employed 
thereon to cultivate the land on shares does not constitute them partners in 
the products: Christian y, Crocker, 25 Ark. 327; Donned v. Haarshe, 07 Mo. 
170; Musser v. Brkik, 68 Id. 242. But it is equally undoubted that the par- 
ties may so frame their contract as to constitute a partnership between them. 
If they jointly engage in the enterprise of cultivating the land, one furnishing 
the land and farming utensils, and the other the labor and superintendence, 
■sharing the expenses between them and agreeing *'to divide the profits," the 
contract possesses every element of a partnership: Reynolds v. Pool, 37 Am. 
Rep. 607; S. C. , 84 N. C. 37; McCrary v. Slaughter, 58 Ala. 230. So, where the 
agreement was for one to furnish the farm and certain stock, provisions, and 
fanning implements, and the other to provide certain laborers and give his 
^personal attention to the direction and control of. the fanning operations, 
Am. Dxo. Vol. XXXYII— 21 

322 Putnam v. Wise, [New York, 

ftad that "when the products are ready for market** the parties should 
" equally divide share and share alike,** the arrangement was held to consti- 
tate "a sort of agricoltnral partnership:*' Lewie v. WUkiTUt Phil. Eq. 303b 
Similar agreements were held to oonsUtate partnerships in IloHfield ▼. WhiUt 
62 Qa. 667; Adams ▼. Ccuier, 63 Id. 160; AtUrey v. Frkze, 59 Ala. 687. In 
Taylor y. Bradley^ 4 Ahh. App. Deo. 363» the agreement was to let a farm 
for a term of years, each of the parties to famish part of the farming imple- 
ments, materials, etc., and pay half the taxes, one of them to cnltivate the 
land and receive certain supplies for his family out of the products, after 
which all products were to be equally divided, and the court held that the 
agreement was not to be regarded as a lease or as a contract for services, but 
as a spedal eontract ** partaking of the nature of an adventure.*' WoodruflE^ 
J., after reviewing the New York cases on the subject of fiurming on the 
shares, including Putnam v. FfMe, declared that if tiie question were a new 
one he would "say unhesitatingly that each case ought to be chiefly governed 
by the language employed by the parties to express their intention.*' 

The prindpal case has been cited in New York to sustain the following 

An AaBXBMXHT to Obop Lavd upon Shabes constitutes the parties there- 
to tenants in common of the crop that is grown until a division has been 
effected: Fiero v. BelU, 2 Barb. 635; Tanner v. HiUs, 44 Id. 429; WUber v. 
Siiaon, 63 Id. 262; Burdiek v. Waahlmnu Id. 401; S. C, 36 How. Pr. 475; ffar- 
rower v. Beath^ 19 Barb. 837; Otis v. Thompson, H. & D. 181; Decker v. 
Decker, 17 How. 14; and if a party to such an agreement agree with another 
person for services to be performed for a share of his share, the latter also be- 
comes tenant in common of the crop: Tupp v. BUey, 15 Barb. 335. 

An agreement of this kind will not create the relation of landlord and 
tenant between the parties: Armstrong v. BickneU, 2 Lans. 219. The true 
relation of the parties is that of master and servant even though the agree- 
ment is in form a lease with all proper technical words: Dinehart v. WHsonf 
15 Barb. 497; Taylor v. Bradley, 4 Abb. App. 374; S. C, 39 N. Y. 138; BuaaeU 
V. Howard, 32 How. 407. The possession will remain unchanged therefore, as 
the possession of the servant is that of the master: Comstock v. Dodge, 43 
How. 106. The test of whether there is such an agreement ia determined by 
the existence of any provision in the contract of the parties for the division 
of the specific products of the farm: Dinehart v. Wilson, supra, citing the prin- 
cipal case. That such an agreement will not constitute the relation of land- 
lord and tenant between the parties, see Bailey v. FiUebroum, 23 Am. Dec. 
631, and note, and De MoU v. Hagerman, 18 Id. 443. 

Tenants in common must Join in trespass or trover for the taking or con- 
version of the joint property: Bice v. ittilenbeck, 19 Barb. 665. 

RiOHT TO Waiver of Action ex delicto in Favor of Action ex con- 
tractu. — ^The didum in the principal case on this subject has been much 
referred to in subsequent cases. Originally it was held that the right to 
waive an action of trover in favor of an action of assumpsit was only to be 
allowed, where the tortfeasor had sold the goods: McKnight v, Dwnlop, 4 
Barb. 42; Harpending v. Shoemaker, 37 Id. 291. 

This qualification has not prevailed. Assumpsit is now allowed wherev^ 
there is an unlawful detention or there has been a conversion: Both v. 
Palmer, 27 Barb. 655; AbboU v. Blossom, 66 Id. 355; Hind v. Darlington, 7 
How. Pr. 281; Chambers v. Lewis, 2 Hilt. 594; Bliss v. Bliss, 7 Bosw. 344; 
but this other restriction was suggested in OAom v. BeU, 6 Denio, 373, that 
the action of assumpsit should not be allowed if the wrongful taking was 

May, 1841.J Cart v. Hotailing. 323 

not intended by the party for hia own benefit The example presented by 
that case was of an illegal seizure by a tax collector, who was acting, how- 
ever, in his sappoeed line of dnty. 

The tort may also be waived and assumpsit maintained for money ob- 
tained by extortion, oppression, or imposition: Hcarvoay v. Mayor etc, of New 
Tork^ 1 Hnn, 629; 4 T. & C. 168. Upon a similar principle the waiver of the 
part of a tort is allowed; so an action of replevin in the deUnei may be 
maintained instead of in the cepUj thongh the original taking of the property 
was tortious: Oummings v. Voice, 3 Hill, 283. 

The principal case is cited as to what is sufficient evidence of m ratification, 
in HoUy, FMer, Barb. 31. 

Gaby et al. v. Samuel and Wm. Hotailino. 

[1 HZLL, 811.] 

Salb Pbooubxd bt the Fbauditlent MissEPRXSEirrATioN of the vendee 

in regard to his solvency* works no change of property, though the fraud 

be not indictable. 
Trbspass, Replkvik, ob Tbovkb mat be Sustained bt Vendor whose 

goods have been obtained from him by m fraudulent purchase. 
Possession of Tbub Owner can not be Divested by a tortious or fmndn- 

lent taking. 
Bvidence—When a Pubchase is Claimed to hate been Fbaitdulant, 

evidence of distinct fraudulent purchases made at or about the same time 

as the purchase under consideration, is admissible. 

Bepletih for seyenly-fiYe barrels of flour, etc. Plea, rum cepU. 
The flour had been sold in Albany by plaintiffs to William 
Hotailing, who sent it^to his brother Samuel, in New York. 
Plaintiffs sought to treat the sale as void on the ground of 
false representations made by defendant William, regarding his 
solvency and credit. Plaintiffs were nonsuited. Thej moved 
for a new trial, having excepted, 1. To the refusal of the court to 
receive the evidence of Lyman Boot, to show that the day before 
purchasing of plaintiffs, William Hotailing made other purchases 
on similar false representations; 2. To the ruling of the judge that 
the plaintiffs to recover must make out such a case as would justify 
the conviction of the defendants if indicted for obtaining goods 
upon false pretenses. 

/. Harris^ for the plaintiffs. 

8. Stevens^ for the defendants. 

By Court, Cowen, J. Clearly, the proof tended to show that 
William Hotailing obtained the goods fraudulently; and it is not 
denied that fraud, especially if it be indictable, may so far avoid 
a sale that an action of trover will lie. It is denied, howeveri 

324 Cart u HoTAiUNa. [New York, 

tliat an action of treepasa will lie; and it is said tLat, tberaforo, 
this action of repleTin for a wrongful taking, which is strictlj con- 
current with trespass, will not 

The general doctrine is perfectly settled, that fraud avoids a 
contract of sale: Brifstol t. WHamore^ 1 Bam. & Cress. 514; KiJUby 
V. Fi&on, 1 Eyan & Moody, 178; Root v. French, 13 Wend. 570 
[28 Am. Pec. 482]. These were all cases of buying goods, with 
a pxeconceiTed design of not paying for them. In the first, 
Abbott, 0. J., said, ** it prevented the property passing." In 
the second he said the same thing. And in Boot v. French, 
Savage, 0. J., states the same rule: but suggests a distinction as 
to the remedy, which v^as not in the case, and which, on more 
Mflection, I am sure he would have repudiated. MbCarty t. Vick" 
en/y 12 Johns. 348, on certiorari from a justice's court, decides 
that trespass will not lie in such a case; and even adds, that the 
property is changed. But no case is dted, nor any principle 
or analogy mentioned on which to rest either proposition. And 
there are numerous cases to the contrary. That the properly 
•does not pass, I add to the cases already cited, the following: 
AUison V. Mathieu, 3 Johns. 235, 238; Van Cleef v. Fleet, 15 Id. 
147, 151; Buffington t. Oerriah, 15 Mass. 156 [8 Am. Dec. 97]; 
.Abbotts y. Barry, 5 Moo. 98, 102; Lupin y. Marie, 2 Paige, 169; 
Andrew y. Dieterich, 14 Wend. 31; Mowrey y. Walsh, 8 Cow. 238; 
Tamplin y. Addy, Id. 239, note; Putnam, J., in Badger y. P/iin- 
ney, 15 Mass. 364 [8 Am. Dec. 105]; Irving v. Motley, 7 Bing. 
543; S. C, 5 Moo. & P. 380. All these cases hold, in terms, 
what was asserted by Dallas, C. J., in Abbotts y. Barry, viz.: 
** The sale being effected by fraud, it is clear that a sale of this 
description works no change of property. The wines must be 
considered as remaining in the plaintiffs, as the original owners." 

This being so, the civil remedies of the party defrftuded are 
dear, viz., trover, or replevin in the detinet; or trespass or re- 
plevin in the cepit, at his election. Trover vhH lie without de* 
mand and refusal, because the original taking is tortious: Thurs^ 
ion y. Blanchard, 22 Pick. 18, 20 [33 Am. Dec. 700]. I admit 
that Buffington v. Oerrish speaks nothing in favor of the remedy, 
as for a trespass; because, although the action was replevin, this 
has long since been holden in Massachusetts to lie for a mere 
unlawful detention: Badger y. Phinney, 15 Mass. 359 [8 Am. 
Dec. 105]; Baker v. Fates, 16 Id. 147, 150, and cases cited at 
the last page: Marston y. Baldwin, 17 Id. 606. But for the pur- 
])08es of the civil remedy, howeyer it may be with the criminal, 
on the distinction between bailment and sale, the cases, with the 

Hay, 1841.] Cabt v. HoTAiLma 325 

exception of McCarty t. Tichery are all one ^v?ay, if we take the 
point as established, that neither works any change in the prop- 
erty of the goods. The general and absolute ownership still 
remains in the vendor or bailor; and not only the original inter- 
ference with the property on the part of the vendee or bailee, 
but any subsequent acts of ownership on his part, may be coH'- 
sidered as an imlawf ul or tortious taking: Putnam, J. , in Badger 
V. Phinney, 15 Mass. 359, 364 [8 Am. Dec. 105], and in Baker v. 
FaJeSf 16 Id. 147, 150. The general owner holds the construc- 
tive possession of personal property; and this is sufficient to 
maintain trespass, though the actual possession be in another: 
Putnam, J., lU supra, FtUnam v. Wyley, 8 Johns. 432 [5 Am. 
Dec. 346] ; Thorp v. Burling, 11 Id. 285; Aitin v. Biu:k, 1 Wend. 
466; Boot v. Chandler, 10 Id. 110 [25 Am. Dec. 546]. It is said, 
that the owner consented to the taking, and were that so, it 
would undoubtedly be a sufficient answer. But consent, in law, 
is more than a mere formal act of the mind. It is an act un- 
clouded by fraud, duress, or sometimes even mistake : Putman, J. , 
u/ supra, 15 Mass. 364; Poth. Obi. , pt. 1, c. 1, sec. 1, pi. 19. This 
is plain enough with regard to executory contracts not under seal. 
They are, if obtained by fraud, mere nullities; and the defend- 
ant, when sued upon them, may say he did not promise, how- 
ever full and formal may have been his ostensible promise. The 
rule has been as broadly laid down in respect to simple con- 
tracts of sale, by most of the cases already cited, respecting 
fraud in such contracts. In WiUcine^ case, 1 Leach, 522, 523, 4th 
ed., Gould, J., said : " It is a rule of law, equally well known 
and established, that the possession of the true owner can not 
be divested by a tortious taking. So, where goods are taken 
from the true owner, by means of fraud.'' An act may be void 
as to one person, or for one purpose, though not as to another 
person, or for another purpose. It would not lie with the ven- 
dee to allege the fraud, and he might therefore be charged for 
ihe price, as a purchaser. Whether he shall be so charged, or 
treated as a trespasser, lies in the election of the injured party: 
Walworth, Ch., in Lloyd v. Brewster, 4 Paige, 541 [27 Am. Dec. 
88]. So, in one case, it was held, that the contract of sale is 
not always void as against a bona fide purchaser from the fraudu- 
lent vendee : Mowrey v. Walsh, ut supra; S. P. , Bowleg v. Bigelaw, 
12 Pick. 307 [23 Am. Dec. 607]. In the latter case, Shaw, 
C. J. , said : * ' They [the vendors] might treat the sale as a nulliiy , 
and reclaim their goods." At least, as between the immediate 
parties, the vendor may say to the vendee : ' ' I was not the aigent 

826 Cart v. Hotailino. [New York, 

of sale and deliTeiy. You took the goods from me by means of 
false representations, and, in a legal sense, "withoat my consent 
and against my "will." 

Even a contract under seal, executory or executed, may be 
treated as Toid, if fraud have been committed in procuring its 
execution. That the owner's mere mannal delivery of goods, 
will not save the deliveree from the imputation of trespass, is 
illustrated in the case of a bailment obtained with an intent to 
deprive the owner of his property. The bailee is considered as 
the taker, and may be convicted of larceny, under an indictment 
alleging that he feloniously stole, took, and carried away the 
property, contrary to the owner's consent. The form of a sale, 
unless within the statute as to false pretenses, saves him from 
the charge of taking in a criminal sense; but for all civil pur- 
poses there is no delivery any more than in the case of bailment. 
In other words, for the purposes of a civil suit, the sale is void; 
though for the purposes of a criminal prosecution, it is voidable 
only. Within the issue of not guilty, in trespass, or rum cepU in 
replevin, there is no more a taking in the case of the fraudulent 
bailment than in that of the fraudulent sale. 

The degree of fraud, therefore, as whether it be indictable or 
not, is of no consequence on the question of nullity, when we 
speak in a civil sense. This was held in so many words, by the 
case of Irving v. MoUey. That the fraud need not amount to the 
obtaining of goods imder false pretenses, within the statute, 
Park, J., took particular pains to show, in consequence of what 
coimsel had sought to infer from a previous case in the dedsion 
of which he had participated, viz.. Noble v. Adama, 2 Marsh. 866» 
See the opinion of Park, J., 5 Moo. & P. 396.^ 

Boot's testimony should have been admitted. On questions of 
intent to defraud, other acts similar to the offense chai^;ed, done 
at or about the same time, or when the same motive to offend 
may reasonably be supposed to have existed as that which is in 
issue, are admissible with a view to the quo amino. The case of 
fraud is among the few exceptions to the general rule, that other 
offenses of the accused are not relevant to establish the main 
charge. The authorities are quite numerous, both in this and 
other courts. Most of them are citrd in Cowen & Hill's ed. 
of 1 Phil. Ev. , note 333, p. 452; Id: , note 352, p. 465. In Irving 
V. Motley, 7 Bing. 643; S. C, 5 Moo. & P. 380, such evidence 
was received to establish the very kind of fraud nous in question 
;bcfore us. The reason for its reception was given by Alderson, 

1. Irving v. Motley. 

Kay, 1841.] Caby v. Hotailino. 327 

J. : Vide 6 Moo. & P. 898. Bawley t. BigeUnc, 12 Pick. 807 [23 
Am. Dec. 607], is also to the same point, in all respects: Vide 
also Jackson ex dem, Bigelow v. Timmerman^ 12 Wend. 299; 
McElvoee t. SviUm, 2 Bail. 128; Lcmry t. Pinsm, Id. 324 [23 
Am. Dec. 140]. 

The result is, that the motion for a new trial should be 
granted, the costs to abide the event. 

New trial granted. 

Tub fbikoipal oasb is vollowsd in Hill's reports, by the case of OlmaUd 
T. HoUdmg^ X Hill, 317, which presented a nearly similar state of facts, and 
was decided upon its authority; the only additional point decided being that 
if one member of a firm obtain goods by means of fraodnlent representations, 
replevin lies against all the members of the firm. 

A Sals of Goods Obtained by Fraud p a ss e s no title to the fnmdulent 
Tendee, and notwithstanding the sale, either replevin, trespass, or trover may 
be maintained against the latter: McKtUght ▼. Dunlop, 2 Barb. 173; Townaend 
▼. Bogctrt, 11 Abb. 61; Dows v. Perrmj 16 K. Y. 333. This has been often 
decided where the fraud consisted in false representations as to the solvency 
of the purchaser: Goulding v. Davidson, 26 N. Y. 606; Van Kleek v. Leroy, 
4 Abb. N. S. 433; Wheaton v. BaJter, 14 Barb. 597; Hunter v. Hudmm River 
Iron <C* Mack. Co., 20 Id. 601; Ladd v. Moore, 3 Sandf. 591; Scott ▼. Sim- 
mona, 34 How. 67; Vati NeaU v. Conover, 20 Barb. 548. The fraud will be 
sufficient, though there are no false representations, if there was an intention 
not to pay for the goods, formed at the time of purchase: BueUey v. Aricher, 
21 Id. 589; Roth v. Palmer, 27 Id. 654. It is not necessary to invoke the op- 
eration of the rule, that the fraud by which the sale was procured was of an 
indictable nature: Nichols v. Micltael, 23 N. Y. 570. The reason of these de- 
cisions is founded upon the consideration that a consent obtained by fraud 
is not the voluntary act of the vendor's mind. This reason applied to the 
case of a sale procured by the exercise of duress, will make of the vendee a 
trespasser ab initio, who may at once be sued in trover without the necessity 
of a demand: Foshay v. Ferguson, 3 Hill, 159. It will also follow from a like 
application of the rule, that trover may be maintained for goods obtained by. 
the lender of money, under an usurious agreement: Scroeppel v. Coming, 5 
Denio, 243; 6 N. Y. 111. 

An assignee for the benefit of the creditors of a fraudulent vendee is in this 
respect in no better situation than his assignor: King v. Fitch, 2 Abb. App. 
527: 1 Keyes, 444. Neither can an execution creditor who has levied upon 
the property uphold the sale: Naugatuck Cutlery Co, v. Babcock, 22 Hun, 
485. Nor can such a creditor uphold the sale, though he has purchased at 
the sale under his own execution, if his bid docs not equal the amount of his 
debt, and so does not require any disbursement upon his part: De Voe v. 
Brandt, 53 N. Y. 4G6. Bat such a sale can not bo defeated as against a bona 
fidt purchaser from the fraudulent vendee: Keyser v. Harbtek, 3 Duer, 391. 
Even an infant is liable in tort for obtaining goods with the intent of not 
paying for them, if at the time of his purchase he conceals his infancy: Wal- 
lace v. Morss, 5 Hill, 593. 

This and kindred subjects are treated of at length in the note to Thurston v. 
Blaiicltard, 33 Am. Dec. 702; see also Knowles v. Lord, 34 Id. 525, in which 
it is decided that the position of an assignee for benefit of creditors of the 
fraudulent purchaser is no better than that of his assignor. 

328 People u MgLeod. [New York. 

EviDENOS or Othsb Similab Fbaum perpetrated by defendant nearly 
contemporaneously are admissible in evidence against him, for the purpose of 
proving his quo ammo: Van KUtk v. Leroy, 4 Abb. N. S. 433; S. C, 37 Barb. 
547; Heney v. Benedict, 15 Hun, 287; MiUer v. Bai^ter, 06 N. T. 568; People 
V. Shulfnan, 80 Id. 375; Vide v. Qms, 49 Barb. 98; Xoiutn^ v. Ruaedl, 13 Id. 
521; Frendiv, White, 5 Duer, 259. 

But this evidence is admissible only to prove the quo ammo; proof of false 
representations to one firm to induce a sale by it affords no ground for the in- 
ference, that like representations were made to induce another sale effected 
nearly contemporaneously: Murfrey v. Brace, 23 Barb. 564; Strong v. Place^ 
83 How. 122; S. C, 4 Bob. 393. 

But if the fraod relied upon is not upon false repreaentations, but upon aa 
intention of the purchaaer not to pay for the goods, evidence of frandulent 
Buarepresentations dumIo by him to other vendors about the same time, as to 
his credit, are admissible to prove his quo ammo: Hall v. Naylor, 18 N. Y. 
589; see also note to Rowley y, Bigelow, 23 Am. Dec. 613. 

Whxtsxr Bepleyzk Libs whxba thb BsFXNiuirT has parted with the 
possession of the property, is a question upon which the subsequent cases are 
not in accord. Brochway v. Bumah, 16 Barb. 311, held that it would, and 
followed the principal case in saying that the action of replevin is commen- 
surate with trespass de bonis aeportalia; but Roberta v. Bandd, 3 How. Pr. 
832; S. C 3 Sandf. 707; DraJoe v. Wah^Uld, 11 How. Pr. 106, are the other 

Laboknt mat bb Committed of goods obtained by fraud ciitt97io/ffran(fi: 
Bmih V. Peoj^, 53 N. Y. 113. 

The People v. Alexandeb MoLeod. 

[1 Hqx, 877, and 35 Wexdbll, 483.] 

DiaoHABOB ON Hark AS Cobpus can not be obtained on the ground that the 
prisoner is innocent of the offense for which he is held under an in- 
dictment. The question of his guilt or innocence must, after indictment^ 
be submitted to a jury. 

PBisoNSZt MAY BB Admittbd TO Bail ou hobeoe corpus, if charged with 
murder by a coroner's inquest, but not after the finding of an indictment 
of a grand jury, because in tho former case the court may look into the 
depositions, and in the latter the evidence is secret. 

Examination into Guilt ob Innocence of a prisoner must, on habeiu 
corpus, even before indictment, be restricted to the proofis and deposi* 
tions upon which he was committed. 

fTAnitAg Corpus. — Statute Requibino the Court to Examinb the facts 
contained in the return, and into the cause of confinement, and if no 
legal cause of confinement is shown, to discharge the prisoner; and fur 
ther providing that he may deny the material facts stated in the return, 
or allege any fact showing that his imprisonment is unlawful, or that ha 
is entitled to a discharge, does not entitle him to go behind the indict* 
ment in a summary manner, and to try before the court the issue regard* 
ing his guilt or innocence of the offense of which he is there accused. 

PowxB to Enter a Nolle Prosequi was, at common law, confided to th» 

July, 1841.] People v. MgLeod. 829 

attorney-general alone. Under oar statates it ia delegated to the dietriot 
attorneys, to be exercised with leave of the court. 

CouBT CAN NOT Obdsr tujs Entst OF A NoLLE pRoasQUi on affidavits and 
other proofs sabmitted by the prisoner, the district attorney having made 
no application for leave to make such entry. 

AUXN ComciTTiNO A CsiMB HKBE is amenable to onr criminal law, in 
whatever manner he may have entered our territory. 

Lawtul Wab, by the law of nations, never exists without the concurrence 
of the war-making power. 

Waa-makino Poweb of the United States is congress; of England, it is 
the qneen. 

A State of Pxacs and ths GoNnNUANQB of Tbbatibs is Pbxsumkd 
by all courts of justice until the contrary is shown. 

P&iYATZ Hostilities, however Just ob General, do not constitute a 
legitimate and public state of war. 

Wab mat be Public, Pbivatb, ob Mixed. Private war is unknown in 
civil society, except so far as it may be exdrted by way of defense be- 
tween private persons. To public war, at least two nations are essential 
parties. Mixed war can be carried on only between a nation on one side 
and private individuals on the other. 

Bight of a Nation, ob Any of its Citizens, to Inyadb another nation 
and harm its property or citizens, does not exist until public war is law- 
fully denounced. 

Public Wab is of Two Kinds: 1. By public declaration; 2. By war de- 
nounced without such declaration. The first is called solemn or perfect 
war, and extends to all the inhabitants of both nations. Hie second is 
styled unsolemn or imperfect war, because made by special declaration, 
and limited to particular objects, beyond which it does not authorise 
measures of hostility. 

Kkflotmbnt of Soldiebs to Aid in Exboutino Pbooess or in punishing 
or arresting individuals does not constitute a state of public war. 

Soldiebs ob Officials of One Nation have no Rioht to Enteb the Teb- 
BITOBT OF Another in pursuit of a criminal, nor for the purpose of at- 
tacking or capturing an enemy. 

JuBiEDicnoN OF A NATION WITHIN ITS OWN Tebbitobt iB excluslve and 
absolute, and eveiy hostile entry into neutral territory is necessarily un- 

An English Subject Who undeb the Dibechon of the Local Canadian 
AuTHORiTrES commits a homicide in the United States in time of peace, 
may be prosecuted here therefor, though his sovereign affirms his con- 
duct and avows that the directions under which he acted were lawful acts 
of his government. 

Sblf-dbfensb, Plea of, not sustained where the party shows that he himself 
was the aggressor and made the attack, or that he acted in retaliation. 

If a Fobsiqneb Enqaoes in Pbivatb Wab, he may be repelled when he 
comes with violence; but we have no right to assault him whilst the mis- 
chief is in machination only, or to revenge ourselves upon him after he 
has committed it. 

PcBSONS Acting in the Tebbitobt of Anotheb Nation, in time of 
peace, though upon the command of their government, and being then 
beyond the jurisdiction of the government for which tney act, must be 

880 People v. McLeod. [New York, 

treated m prooeeding on their own responsibility, and may be proeeeated 
as criminals in the courts of the nation thus entered, though their own 
govemxnent adopts and approves their crime. 

Laws of a Nation can not extend beyond its own territory. 

80LDIXB 18 HOT Bound to Obet his Soyebsign, by going into a neighbor^ 
ing nation, during time of peace, and there committing an unlawful act. 

Sfobs and Othxe Pebsons Undebtakino thx Ck>iaii88iON OF Cbikks not 
authorized by public war, are not protected by the command of their 
superior from punishment in the tribunals of the nation whose laws are 

Afpboval of his SovKBEiaN Detbaots Kothino from the criminality >of the 
subject who has committed a crime in a foreign country during time of 
peace. The case of embassadors forms an exception to tiiis rule. 

DiFLOiCAcnr is not an Executive but a Judicial Function; and the joint 
diplomacy of two nations can not oust the courts of one of them from 
trying a person accused of committing a crime. 

Whbtheb ob not Facts Alleged in Justdtgation of Homioidb Ezm 
is the province of the jury to determine, knd not a question to be de- 
cided on habeas corpus. 

Habeas oobfus to obtain Uie discharge of Alexander McLeod. 
The return of the sheriff showed that the prisoner was held 
under an indictment found by the grand jury of Niagara county, 
charging him with the murder of Thomas Durfee. The indict- 
ment was in due form, and was annexed to the return. In be- 
half of the prisoner an affidavit was read showing that about 
the middle of December, 1837, two or three hundred men from 
the state of New York, commanded by Bensselaer Van Bens- 
selaer, took forcible and hostile possession of Navy island, in 
Niagara river, in the province of Upper Canada, organized and 
defended themselves in warlike manner against the Canadian 
authorities, and made war on her majesty's subjects by discharg- 
ing cannon and otherwise; that they^were supported by citizens' 
of the United States, and their object was to cause a revolution, 
and to separate said province from the government of Qxeat 
Britain; that a force of about two thousand five hundred men 
assembled under the authoriiy of the provincial government and 
engaged in hostilities with the forces on Navy island, but were 
unable to dislodge them until January 16, 1838; that on the twen- 
ty-ninth of December 1837, the steamboat Caroline, proceeding 
from Buffalo or Black Bock, landed military stores on Navy 
island, and commenced plying between that island and points 
in the state of New York, transporting men, provisions, and 
implements of war to the forces on the island; that an expedi- 
tion was then fitted out, under the direction of Colonel Allen 
McNabb of her majesty's forces, for the purpose of taking and 
destroying said boat, wherever found; that early on the thirtieth 

July, 1841.] People v. MgLeod. 331 

of December the forces of such expedition attacked said boat 
at Schlosser in said state, and in such attack, and while acting 
under their commanding officer, one Amos Durfee, then on said 
boat, was shot and killed; that the attack, and destruction of 
the boat, and all acts relating thereto, including the killing of 
Durfee, had been approved and adopted by the government of 
Great Britain, as a necessary act of self-defense; that a corre- 
spondence between the United States and Great Britain, in rela- 
tion to the destruction of the boat and demanding reparation, 
had been opened; and that deponent was not engaged in the ex- 
pedition, nor did he take any part therein, nor in the killing of 
Durfee. Certain published correspondence between the two 
governments and various official documents were referred to in 
the affidavit, and annexed thereto. The correspondence between 
the two governments commenced January 4, 1838, and seems to 
have been closed April 24, 1841. The first letter mentioning 
McLeod was from Mr. Vox, on the part of the British govern- 
ment. It was dated December 13, 1840. It requested the 
United States to take prompt steps for the release of McLeod; 
stated that the destruction of the Caroline was a public act of 
persons in her majesty's service, obeying their superior offi- 
cers, and could not, therefore, be made the ground of legal pro- 
ceedings against the individuals concerned, and that it was 
notorious that McLeod was not one of the parties participating 
in the destruction of tiie Caroline. Mr. Forsyth, in replying on 
behalf of the United States, insisted that the alleged offense was 
committed within the jurisdiction of the state of New York; that 
the transaction resulting in the destruction of the Caroline and 
the killing of Durfee was an imjustifiable invasion, in time of 
peace, of the territory of the United States; that the United States 
was aw&re of no principle entitling parties accused, of any ex- 
emption from trial before the judicial tribunals of the coimtry, 
and the executive was not authorized by the constitution and laws 
of the United States to interfere with the action of those tri- 
bunals by requiring them to release persons duly indicted and 
held for trial; that though the avowal of the act might entitle 
the United States to apply to Great Britain for redress, it '' can 
not deprive the state of New York of her imdoubted right of 
vindicating, through the exercise of her judicial power, the prop- 
erty and lives of her citizens." Mr. Fox, in his letter of March 
12, 1841, again demanded the immediate release of McLeod; 
and avowed the adoption and approval of his government of the 
attack upon and destruction of the Caroline; and denied that 

332 People v. McLeod. [New York, 

the release Tms a question for the tribunals of New York. The 
response of Mr. Webster on the part of the United States stated 
** that her majesty's goyemment must be fully aware, that in the 
United States, as in England, persons confined under judicial 
process -can be released from that confinement only by judicial 
process. In neither country, as the undersigned supposes, can 
the arm of the executiye power interfere, directly or forcibly, to 
release or deliver the prisoner. His discharge must be sought 
in a manner conformable to the principles of law and the pro- 
ceedings of courts of judicature." Mr. Webster, while thus 
leaving the question with the courts, seemed to entertain no 
doubt that the avowal of the act by the English government 
would result in the acquittal of McLeod. On this subject he 
said: " The government of the United States entertains no doubt 
that, after this avowal of the transaction, as a public transaction, 
authorized and undertaken by the British authorities^ individ- 
uals concerned in it ought not, by the principles of public law 
and the general usage of civilized states, to be holden personally 
responsible in the ordinary tribunals of law for their participa- 
tion in it. And the president presumes that it can hardly be 
necessary to say that the American people, not distrustful of 
their ability to redress public wrongs by public means, can not 
desire the punishment of individuals when the act complained 
of is declared to have been the act of the government itself. 
The indictment against McLeod is pending in a state court, but 
his rights, whatever they may be, are no less safe, it is to be pre- 
sumed, than if he were holden to answer in one of the courts of 
this government. He demands immunity from personal re- 
sponsibility by virtue of the law of nations, and that law in civil- 
ized states is to be respected in all courts. None is either so 
high or so low as to escape from its authoriiy in cases to which 
its rules and principles apply." Affidavits on the part of the 
people were read tending to show that McLeod was present at 
the attack on the Caroline, participated therein, shot Durfee, 
and afterwards admitted that he had done so. 

A, Bradley and J, A, Spencer^ for the prisoner. 

WHlis Hall, aUomey-general^ contra. 

By Court, Cowen, J. The prisoner's petition, on which I 
allowed this writ, contained an intimation that his commitment 
to the jail of the county of Niagara had not been regular; but 
that ground is now abandoned. The sheriff returns an indict- 
ment for murder, found by a grand jury of that couniy against 

July, 1841.] People v. McLeod. 833 

the prisoner, on which he appears to hare been arraigned at the 
court of oyer and terminer holden in the same county. It fur- 
ther apx)ears that he pleaded not guilty, and was duly committed 
for trial. The indictoient changes, in the usual form, the mur- 
der of Amos Durfee by the prisoner, on a certain day, and at a 
certain town within the county. 

These facts, although officially returned by the sheriff, were, 
by a proTision in the Tiabeas corpus act, 2 B. S. 471, 2d e^., sec. 
£0, open to a denial by affidarit, or the allegation of any fact to 
show that the imprisonment or detention was unlawful. In 
such case, the same section reqxiires this court to proceed in a 
summary way to hear allegations and proofs in support of the 
imprisonment or detention, and dispose of the party as the jus- 
tice of the case may require. Under color of complying with 
this proTision, which is of recent introduction, the prisoner, not 
denying the jurisdiction of the court over the crime as charged 
in the indictment, or the regularity of the commitment, has in- 
terposed an affidavit stating certain extrinsic facts. One is, that 
he was absent, and did not at all particijmte in the alleged 
offense; the other, that if present and acting, it was in the nec- 
essary defense or protection of his countiy against a treasonable 
insurrection, of which Durfee was acting in aid at the time. 

Taking these facts to be mere matters of eyidence upon the 
issue of not guilty, and, of themselves, they are cl#arly nothing 
more, I am of opinion that they can not be made available on 
habeas corptis, even as an argument for letting the prisoner to 
bail, much less for ordering his tmqualified discharge. That 
this would be so on all the authorities previous to the revised 
statutes, his counsel do not deny. The rule of the case is thus 
laid down in the British books: ''A man charged with murder, 
by the verdict of a coroner's inquest, may be admitted to bail; 
though not after the finding of an indictment by the grand 
jury:" 1 Ch. Or. Law, 129, Am. ed. of 1836; Petersd. on Bail. 
621, S. P. It has never, that we are aware, been departed from 
in practice tmder the English habeas corpus act. Lord Chief Jus- 
tice Raymond said in Bex v. DaUon, 2 Str. 911, that he would 
bail, though a coroner's inquest had found the crime to be mur- 
der; and the distinction was, between the coroner's inquest, 
where the court can look into the depositions, and an indictment, 
where the evidence is secret: Lord Mohun's case, 1 Salk. 104, 
S. P. This reason is adopted by Ghitiy, at the page of his 
Cr. Law before cited; and by Petersd. on Bail., Lond. ed. of 
1835, p. 521. It was also recognized by Sutherland, J., of this 

834 People u McLeod. [New York. 

court, in 1825: Thylo^a ctue, 6 Cow. 66. He says, ** the indict- 
ment must be taken as condusiye upon the degree of the crime:" 

The depositions heretofore taken in the cause being thus cut 
off, there are no means of inquiry left to us on this motion, by 
which we can say, whether a murder was in fact committed, or 
whether the charge would probably be mitigated on the trial to 
a Yery^doubtful case of manslaughter, or to a homicide in de- 
fense, or whether all participation might be disproyed by show- 
ing a clear alibi. Nothing is better settied, on English authority, 
than that, on habeas corptis, the examination as to guilt or inno- 
cence can not, imder any circumstances, extend beyond the depo- 
sitions or proofs upon which the prisoner was committed. This 
would be so, even on habeas corpus before an indictment found, 
however loosely the charge might be expressed in the warrant of 
commitment. Chitty, at the page before cited, says: " It is in 
fact to the depositions alone that the court wiU look for their 
direction: where a felony is positively charged, they wiU refuse 
to bail, though an alibi be supported by the strongest evidence.'* 
He cites Bex v. Oreenwood, 2 Str. 1138, a case of robbery, and 
eight credible witnesses making affidavit that the prisoner was 
at another place at the time when the robbery was sworn to have 
been committed; yet, adds the report, the court refused to admit 
him to bail, but ordered him to remain till the assizes. Here the 
crime is clearly proved by the depositions which have been read 
on the side of the people, while, instead of eight witnesses to an 
alibi, we have the solitaiy affidavit of the prisoner. In Bex v. 
Adorii 2 Str. 851, it was alleged that the prisoner had before 
been tried for a murder and acquitted. Afterwards, on proof of 
facts exactiy similar to those in question at his former trial, a 
justice of the peace issued a warrant chaiging him with another 
murder; and he was again committed. On his being brought 
up by habeas corpiLS, his counsel offered to show his former ac- 
quittal; yet the court refused to hear the proof: S. C, 1 Bamard- 
ist, K. B. 250. On the authority of this case, Mr. Chitty, at the 
page of his book just cited, lays down the rule, that the court 
will not look into extrinsic evidence at all. He states a case 
wherein the same question came up in respect to an inferior 
crime — receiving stolen goods with a guiliy knowledge. The 
prisoner's affidavit denied his knowledge; yet the court refused 
to bail, saying the fact of knowledge was triable by a jury only. 
They added, it would be of dangerous consequence to allow such 
proceedings, as it might induce prisoners generally to lay their 

July, 1841.] People v. McLeod. 33^ 

cose before the court: Petersd. on Bail. 522, refers to Chitiy, who 
cites Gas. K. B. 96. This book, eo nomine, does not appear now 
to be extant; and 12 Mod., the only reference I am aware of 
which, among the English quotations, is synonymous with 
Chitty's, does not appear to contain the case stated by him. But 
it accords with many others in circumstance; and the reason 
given is almost too plain to demand any direct authority. 

To hear defensiye matter through ex parte affidavits, as a 
ground for bailing the prisoner, would be to trench on the office 
of the jury; for in the case of high crimes bail would be equivalent 
to an acquittal. Accordingly tiie rule as laid down in Homer^a 
ease^ 1 Leach, 270, 4th London ed. 1815, is, in effect, the same 
with that stated by Chitiy. The prisoner had been committed 
under a charge of defrauding and robbing a man of his money 
by false pretenses. It was insisted that the facts stated in the 
depositions for the king made out a mere misdemeanor, and 
that the prisoner was therefore entitled to bail. But the trans- 
action by which the money was obtained admitted of one con- 
struction which might make it a felonious taking. The court 
said : " Li cases of this kind the course has always been to leave 
it to the jury to determine qiLO animo the money was obtained. 
In such a' case the court never form any judgment whether the 
&cts amount to a felony or not; but merely whether enough is 
charged to justify the detainer of the prisoner and put him upon 
his trial.*' 

The cases I have noticed were, in several respects, stronger 
for the prisoner than the case before us. They were mostly 
founded on charges of a character much less serious than 
murder. They were all before indictment fotmd; some of them 
presented a state of things on which it was plainly impossible 
to convict; and last, though not least, they were mere applica- 
tions for ba7l; a thing which McLeod does not ask for. He de< 
mands an absolute discharge, on grounds upon which, ac- 
cording to the laws of England, he would not even be entitled 
to bail. The law of England formed^ in this respect, the law 
of New York, tmtil our new habeas corpiis act took effect. 

It becomes necessaiy next to inquire whether the new statute 
has worked any enlargement of our powers beyond what we 
have seen they were up to the time when it passed. The 2 B. S. 
469, 2d ed., sees. 40, 41, require us to examine the facts con- 
tained in the return, and into the cause of the confinement of the 
prisoner; and if no legal cause be shown for it, or for its con- 
tinuation, we are to discharge him. That here is legal cause, 

336 People v. McLeod. [New York, 

Tiz., an indictment for murder, and an an order of commit- 
ment, we hare seen, is not denied. By the forty-fifth section, 
p. 470, if it appear that the party has been legally committed 
for any criminal offense, we are required to let him to bail, if 
the case be bailable. But so far, we have no direction as to 
what case shall be considered bailable. We are left under the 
restraints which I have noticed as existing before the statute. 
Not one of them is removed by it. 

Then comes section 50, p. 471, which is relied on by the 
prisoner's counsel. I briefly noticed this, in proposing the ques- 
tion to be considered. But the prisoner is entitled to the benefit 
of it entire. The words are, that " the party brought before 
such court or officer, on the return of any writ of habeas corpus, 
may deny any of the material facts set forth in the return, or 
allege any fact to show either that his imprisonment or deten- 
tion is unlawful, or that he is entitled to his discharge, which 
allegations or denials shall be on oath; and thereupon such court 
or officer shall proceed in a summary way, to hear such allega- 
tions and proofs as may be produced in support of such im- 
prisonment or detention, or against the same, and to dispose of 
such x>arty as the justice of the case may require." Under this 
statute the prisoner's counsel claim the right of going behind 
the indictment, and proving that he is not guilty by affidavit, as 
he may by oral testimony before the jury. We have already 
shown the absurdity of such a proposition in practice, and ils 
consequent repudiation by the English criminal courts. And 
we are not disposed to admit its adoption by our legislature, 
without clear words or necessary construction. 

We think its object entirely plain, without a resort to the 
rules of construction. Its words are satisfied by being limited 
to the lawfulness of the authority under which the prisoner is 
detained, without being extended to the force of the evidence 
upon which the authority was exerted, or which it may be in 
the prisoner's power to adduce at the trial. This, if necessary, 
is rendered still more plain, by considering the evil which the 
statute was intended to remedy. At common law, it was doubt- 
ful whether the prisoner could question the truth of the return, 
or overcome it, by showing extrinsic matter upon the point of 
the authoriiy to imprison. The statute was passed to obviate 
the oppression that might sometimes arise from the necessity of 
holding a return to be final and conclusive, which is false in 
fact, or if true, depending for its validity on the act of a mag- 
istrate or court which can be shown by proofs aliunde to 

July, 1841.] People v. McIiEod. 337 

have been destitute of jurisdiction: Watson's case, 9 Adol. & El. 
731; 3 R. S. 784, 785, 2d ed., app., note. An innocent man 
may be, and sometimes tmfortunately is, imprisoned. Yet his 
imprisonment is no less lawful than if he were guilty. He 
must await his trial before a jury. There are various cases in 
which the enactment, allowing proof extrinsic to the return, 
may hare effect without supposing it applicable here. It must, 
I apprehend, for the most part, apply to cases where the 
original commitment was lawful, but in consequence of the hap- 
pening of some subsequent event, the party has become en- 
titled to his discharge; as, if he be committed till he pay a fine, 
which he has paid accordingly, and the return states the com- 
mitment only. So, after conviction, he may allege a pardon, 
or that the judgment under which he was imprisoned, has been 
reversed. Nor is it necessary to inquire how far we might be 
entitled to go, were the prisoner in custody on the mere exam- 
ination and warrant of a committing magistrate. 

But it is said, we have power to direct the entry of a noUe 
prosequi, and it is our duty to look into the merits of the case 
with a view to decide whether it be a proper one for the exercise 
of that power. This proposition is also put upon a new section 
of the revised statutes, which most clearly gives no color for the 
suggestion. At common law, the attorney-general alone pos- 
sessed this power, and might, under such precautions as he felt 
it his duty to adopt, discontinue a criminal prosecution in that 
form at any time before verdict. The power and practice under 
it are laid down in 1 Chit. Cr. Law, 478, ed. before cited. It 
probably exists unimpaired in the attorney-general to this day; 
and it has been by several statutes delegated to district attorneys, 
who now represent the attorney-general in nearly every thing 
pertaining to indictments, and other criminal proceedings, local 
to their respective counties. The legislature finding the power 
in so many hands, and fearing its abuse, by the 2 B. S. 609, 
sec. 54, 2d ed., provided, that it should not thereafter be lawful 
for any district attorney to enter a nolle prosequi upon any indict- 
ment, or in any other way discontinue or abandon the same, 
without leave of the court having jurisdiction to try the offense 
charged. This provision, the prisoner's counsel contended, so 
enlaiqged our powers that we might arbitrarily interfere on the 
prisoner's affidavit and other proofs verifying his innocence, or 
even on grounds of national policy, as where the prosecution 
would be likely to affect our foreign relations un&vorably; and 
that too, in despite of the attorney-general and district attorney. 

Am. Dbo. Vol. XXXVII— 23 

838 People v. McLeod. [New York^ 

Conceded as it was, that before the reyisod statutes, we had no 
right to giye such direction, the argument seeks to draw from 
the statute giving us a veto against the noUe prosequi, a positive 
power to compel its entry. Even if we had such power, the 
argument would be quite eztraordinaiy. It demands that we 
should finally dispose of an indictment for murder, on the sort 
of evidence by which we are guided upon a motion to set aside 
a default, or change a venue. In any view, this question be- 
longs primarily to the executive department of the government. 

I shall have occasion to inquire hereafter, whether these views 
should not be regarded as a final answer to this application. 
That will depend on the question, whether the facts stated on 
the part of the prisoner, supposing them to be admissible at sUl, 
are proper for the consideration of the jury only; or whether, as 
coimsel have insisted with great zeal, they are such as to divest 
our criminal courts of all jurisdiction, either over the subject- 
matter, or person of the prisoner. We should, as we thought 
at the close of the aigument, have felt ourselves entirely satis- 
fied to dispose of the case on the first question, without look-^ 
ing any farther into the nature of the transaction out of which 
this indictment has arisen. But, as counsel made the question 
of jurisdiction their main topic, we preferred to preserve the 
case, and have looked into it as far as possible during a veij 
short vacation, consistently vrith other pressing judicial avoca- 

Want of jurisdiction has not been put on the ground that 
McLeod was a foreigner. An alien, in whatever manner he 
may have entered our territory, is, if he commit a crime while 
here, amenable to our criminal law: Lord Mansfield, in Gampbdl 
V. HaU, Cowp. 208; Vattel, b. 2, c. 8, sees. 101, 102; Story's 
Confl. of L. 518, 2d ed. Nay, says Locke, though he were 
an Indian, and never heard of our laws: Locke on Civ. Gov., 
b. 2, ch. 2, sec. 9. But it is said, his case belongs exclusively^ 
to the forum of nations, by which, cotmsel mean the diplo- 
matic power of the United States and England, or in the event 
of their disagreement, the battle-field. I have already admitted 
that counsel may, under the fiftieth section of the habeas corpus 
act, allege and prove a want of jurisdiction. To show this, the 
affidavit of McLeod is produced, from which the inference ia 
sought to be raised, that the Niagara frontier was in a state of 
war against the contiguous province of Upper Canada; that the 
homicide was committed by McLeod, if at all, as one of a mili- 
tary invading expedition, set on foot by the Canadian authori- 

July, 1841.] People u McLeod. 839 

ties, to destroy the boat Caroline; that he was a British subject; 
that the expedition crossed our boundary, sought the Caroline 
at her moorings in Schlosser, and there set fire to and burned 
her, and killed Durfee, one of our citizens, as it was lawful to 
do in time of war. 

We need not stay to examine the conclusion, yiz., a want of 
jurisdiction, if the premises be untrue. To warrant the destruc- 
tion of properly, or the taking of life on the ground of public 
war, it must be what is called lawful war, by the law of nations, 
a thing which can never exist without the actual concurrence of 
the war-making power. This, on the part of the United States, 
is congress; on the part of England, the queen. A state of 
peace and the continuance of treaties must be presumed by all 
courts of justice till the contrary be shown; and this is pre- 
tumptio juris et dejure^ untQ the national power of the country 
in which such courts sit, officially declares the contrary. A 
learned English writer on the law of nations makes this remark 
(1 Ward's Law of Nations, 294): ''Although I am aware that 
there is a great authority for the contrary opinion, yet it is upon 
the whole settled, that no private hostilities, however general, or 
however just, will constitute what is called a legitimate and 
public state of war. So far, indeed, has my Lord Coke carried 
this point, that he holds, if all the subjects of a king of England 
were to make war on another country in league with it, but with- 
out the assent of the king, there would still be no breach of the 
league between the two countries:'* 1 Bl. Com. 267, S. P. 
Again, in Blackbume v. Thompson, 16 East, 81, 90, Lord Ellen- 
borough, Ch. J., delivering the opinion of the court of king's 
bench, said: '' I agree with the master of the rolls, in the Case 
of the Pelican^ 1 Edw. Adm. E., Append. D., that it belongs to 
the government of the country to determine in what relation of 
peace or war any other coimtiy stands towards it; and that it 
would be unsafe for courts of justice to take upon them, with- 
out that authority, to decide upon those relations. But when 
the crown has decided upon the relation of peace or war in 
which another country stands to this, there is an end of the ques- 
tion:" 3 Camp. 66, 67, S. C. and S. P. 

So far were the two governments of England and the United 
States from being in a state of war, when the Caroline was de- 
stroyed, that both were struggling to avoid such a turn of the 
excitement then prevailing on the frontier, as might furnish the 
least occasion for war. Both had long maintained the relations 
of national amity: and have done so ever since under an actual 


840 People v. McLeod. [New York, 

treaty. So far from England fitting out a warlike expedition 
against the United States, or any public body, she utterly dis- 
avows any such object; while on our side, we have inflicted legal 
punishment on the leaders of the expedition, of which Durfee 
made a part, on the ground that England was then at peace 
with us. Whatever hostile acts she did, were aimed exclusively 
at private offenders; and if there was a war in any sense, the 
parties were England on one side, and her rebel subjects, aided 
\}j certain citizens of our own, acting in their private cax>acitie8, 
and contrary to the wishes of this government, on the other. 

In speaking of public war, I mean to include, all national wars, 
whether general or partial; whether publicly declared, or carried 
on by commissions, such as letters of marque, militaxy orders, 
or any other authority emanating from the executive power of 
one country, and directed against the power of another; whether 
the directions relate to reprisals, the sieges of towns, the cap- 
ture or destruction of private or public ships, or the persons or 
property of private men belonging to the adverse nation. I 
mean to exclude all hostility of any kind, not having for its 
avowed object the exercise of some influence or control over the 
adverse nation as such. I deny that public war in this sense 
can be made out by affidavit, or by any other medium of proof 
than the denunciation of war by one or both of the two nations 
who are parties to it. 

There are but three sorts of war, public, private, and mixed: 
Orot., b. 1, c. 8, sec. 1. Private war is unknown in civil 
society except where it is lawfully exerted by way of defense 
between private persons. To constitute a public war, at least 
two nations are essential parties, in their corporate capacities. 
Mixed war can be carried on only between a nation on one side 
and private individuals on the other. There is no fourth kind: 
Orot., tU supra. 

The right of one nation, or any of its citizens, to invade 
another, or enter it and do any harm to its property or 
citizens, does not arise till public war be lawfully denounced in 
some form. It does not arise where one nation has a quarrel 
with private persons being within the territory of another. 
Whether there be any exception to this rule, I shall hereafter 

Much was said in argument, on the assimiption that the state 
of hostilities on the frontier amotmted to unsolemn war. In 
supposing this to be so, counsel come back to the veiy error 
which they repudiated in more general terms. A war is none 

July, 1841.] People v. McLeod. a4l 

tbe less public or national, because it is unsolemn. All national 
"wars are of two kinds, and two only; war by public declaration » 
|r war denounced without such declaration. The first is called 
'^iolemn or perfect war, because it is general, extending to all the in- 
habitants of both nations. In its legal consequences it sanctions 
indiscriminate hostility on both sides, whether by way of inva- 
sion or defense. The second is called unsolemn or imperfect 
war, simply because it is not made upon general, but special 
declaration. The ordinary instance is a commission of reprisal^ 
limiting the action of the nation plaintiff to particular objects 
and purposes against the nation defendant. It supposes a 
partial grievance, which can be redressed by a corresponding^ 
remedy or action; and does not authorize hostility beyond th& 
scope of the special authority conferred. Such are several of 
the instances I have just now mentioned. But they are no less 
instances of public war. The attack on Copenhagen was men- 
tioned on the argument as an instance of unsolemn war. So 
indeed it was. The British admiral had a deputation from the 
war-making power of England to act against the war-making 
power of Denmark; to demand the surrender of the Danish fleets 
and, on refusal, to destroy public or private property, or take 
life, not as a punishment of private offenders, but to coerce the na* 
tion. Why was the attack made ? Because Denmark would not 
surrender her navy voltmtarily ; and there was danger that Franca 
would take it, either by force or under collusion on the side 
of Denmark. Those who were in arms on the side of Denmark, 
acted not in their own right, but as agents of the nation to which 
they were subject. Before the remotest analogy can be seen 
between that case and the one at bar, the United States must be 
brought in and made defendant in their corporate capacity. It 
will be seen, I trust, by this time, that the instance derogates 
not in the least from the distinction that runs through all the 
writers on international law, viz. , that to constitute either solemn 
or unsolemn war, the authority to act must emanate from the 
vrar-making power on one side, and be intended to influence 
that power on the other. Action under such a power is neces- 
sarily a collision between two nations; and answers to Grotius* 
definition, viz.: '* That is a public war which is made on each 
side by the authority of the civil power:" B. 1, c. 3, sec. 1. At 
section four, he divides this sort of war into solemn and tm* 
solemn, of which latter he gives an instance in b. 3, ch. 2, sec. 
2, n. 3. Vide also Ruth., b. 2, c. 9, sec. 9, 10. The distinc-^ 
tion has been followed to this day, though the legal charactes 

342 People v. McLeod. [New York, 

of unsolemn war has since been changed. " Both," says Ruth- 
erforth, ** are now lawful. The only real effect of a declaration 
of war is, that it make? the war a general one; whilst the im- 
perfect sorts of war, si jh as reprisals, or acts of hostility, are 
partial, or are confined to particular persons, or things, or places. 
In a solemn war, all the members of one nation act against the 
other under a general commission; whereas in public wars which 
are not solemn, those members of one nation who act against 
the other, act under jmrticular commissions:" Ruth., b. 2, o. 
9, sec. 18; Vat., b. 3, c. 15. And see this distinction woU 
treated: 1 Hal. P. C. 162, 163. 

Both sorts of war are lawful, because carried on under the 
authorify of a power havisg, by the law of nations, a right to 
institute them. In any other war no belligerent rights can be 
acquired. All captures, all destruction of property, must be 
illegal; and the taking of life a crime. Short of this, war can 
not be carried into an enemy's country, for the simple reason that 
there is no war to carry there, and no enemy against whom it can 
be exerted. The nation denouncing war must be explicit. 
** This makes it," says Yattel, '' formal, and so lawful." " But 
nothing of this kind," says he, " is the case in informal, illegiti- 
mate war, which is more properly called depredation. A nation 
attacked by enemies, without the sanction of a public war, is 
not under any obligation to observe towards them the rules of 
formal warfare. She may treat them as robbers:" Yat., b. 3, c. 
4, sec. 68. " Such unauthorized volunteers in violence," says 
Blackstone, "are not ranked among open enemies; but are 
treated like pirates and robbers:" 3 Bl. Com. 267. 

It was accordingly conceded, in argument, that the Canadian 
provincial authorities had no inherent power to institute a pub- 
lic war: Vide Ruth., b. 2, c. 9, sec. 9. We were, however, 
referred to Burlamaqui, pt. 4, c. 3, sees. 18, 19, to show that 
those authorities might do so on the presumption that their 
sovereign would approve the step; and that such approba- 
tion would reflect back, and render the war lawful from the be- 
ginning. ' On the assumption that this indirect mode of insti- 
tuting war had actually been resorted to, counsel again bring 
themselves back to the fundamental error which led to this ap- 
plication. No one would deny that, if the affair in question 
can be tortured into war between this nation and England, the 
United States might take possession of McLeod as a prisoner of 
war. In such a case, there would have been no need of this 
motion. But admitting the rule of Burlamaqui, and that coun* 

JxHj, 1841.] People v. McLeod. 843 

«el might, by the aid of England, get up an exposifaoio war for 
ihe benefit of McLeod, this can not be done by an equivoque; 
And especially not in contradiction to the language of England 
herself. Neither the provincinal authorities nor the sovereign 
power of either country have, to this day, characterized the 
transaction as a public war, actual or constructive. They never 
thought of its being one or the other. Both have spoken of it as 
a transaction public on one side, to be sure; but both claimed to 
hold fast the relations of peace. Oounsel seem to have taken it 
for granted that a nation can do no public forcible wrong with- 
out its being at war, even though it deny all action as a bellig« 
erent. At this rate, every illegal order to search a ship, or 
enter on a disputed territory, or for the recaption of national 
property even from an individual, if either be done vi et armis 
and work wrong to another nation or any of its subjects, would 
be public war; necessarily so, though the actor should deny all 
purpose of war. Were such a rule once admitted, England and 
the United States can scarcely be said to have been at peace 
since the revolution which made them two nations. My en- 
deavor has been to show that on the question of war or peace 
there is a quo animo of nations, by which we are bound. 

To prevent all misunderstanding in the progress of the argu- 
ment, it is proper to observe farther, that an act of jurisdiction 
exerted by inferior magistrates, civil or military, for the arrest 
or punishment of individuals, is not public war of either kind. 
So long as the act is kept within legal compass, though its ex- 
ertion be violent, where, for instance, the object is to suppress 
a riot, quell an insurrection, or repel the hostile incursions of 
individuals, it is, though sustained by a soldiery in arms, only 
one mode of enforcing the criminal law. It is like calling out 
the militia as a po9se comikUus to aid a sheriff who is resisted in 
the execution of process. Force becomes lawful where the laws 
are set at defiance. We see this in the frequent resort to sol- 
diers of the regular army by the English, in cases of dangerous 
riots: Vide Buth., b. 2, c. 9, sec. 9. Such a state of things, 
therefore, confers no right to act offensively against individuals 
who reside or sojourn in the neighboring territory. Should 
they be pursued and arrested, or killed, the act would be a 
naked usurpation of authority; like the sheriff of one county 
going into another to execute process. '* If/' says Butherforth, 
b. 2, c. 9, sec. 9, ''the magistrate, in any instance, use even 
the force with which he is intrusted, in any other manner or for 
any other purpose than is warranted by his appointment, this. 

844 People v. McLeod. [New York, 

as it is his own act, and not the act of the publio, can not be 
called public war." 

Sensible that all pretense of belligerent right was wanting, it 
was therefore, in the first riew — as a lawful act of magistracy — 
that the case was sought to be put bj Mr. Fox, both in his letter 
to Mr. Forsyth and Mr. Webster. I take the words of his last 
letter, written after the question had been deliberately consid- 
ered by his govemment: '' The grounds upon which the British 
goyemment make this demand [the surrender of McLeod] are 
these: that the transaction on account of which Mr. McLeod 
has been aiiested, and is to be put upon his trial, was a transac- 
tion of a public character, planned and executed by persons 
duly empowered by her majesty's colonial authority to take any 
steps and do any acts which might be necessary for the defense 
of her majesty's territories and for the protection of her majesty's 
subjects: and that consequently, those subjects of her majesty 
who engaged in that transaction were performing an act of pub- 
lic duty, for which they can not be made personally and indi- 
Tidually answerable to the laws and tribunals of any foreign 
countiy." In the same letter he restates the opinion of his 
goyemment, that "it was a justifiable employment of force for 
the purpose of defending the British territoiy from the unpro- 
yoked attack of a band of British rebels and American pirates." 

If this yiew of the transaction can be sustained, it was lawful 
ab inUU>. It required no royal recognition to render it national. 
It came within the power which the Canadian authorities held 
from England to act in her place and stead. So long as they 
confined themselyes within the territorial line of Canada they 
were doing no more than the nature of their connection with 
England required; sustaining that absolute and exclusiye juris- 
diction to which she is entitled in common with eyeiy other 
nation. Whether they had power, without pretense of being 
engaged in a war with the United States, or could deriye power 
from England, to fit out an expedition, cross the line, and seize or 
destroy the property and persons of our citizens in this country, 
and whether any one acting under such an assumption of power 
can be protected, is quite a different question. 

One decisiye test would be furnished by admitting that Durf ee 
had committed a crime against England, for which he was liable 
to arrest and trial in Canada. None would pretend that any war- 
rant from the English nation could be used to protect one of her 
officers from an action of false imprisonment, if he had merely 
arrested the offender on this side the line. No one would pre- 

July, 1841.] People u McLeod. 346 

tend that a militaiy order and the addition of the queen's 
soldiers and sailors would, in such case, strengthen a plea of 
justification; nor, would the subsequent approval of the nation. 
This would have no greater effect than the original authority. 
Accordingly it was not pretended on the argument, that England 
had any right whatever to send and arrest Durfee as a fugitive 
from justice. The pretense that she had any such right would 
have been too absurd to bear the name of argument. Nor is it 
pretended that her magistrates, civil or militaiy, had any power 
within our territory to seize and bind him over to keep the peace 
towards England or her subjects. ** We can not," says Vattel, 
b. 2, c. 7, sec. 93, ** enter the territoiy of a nation in i)ursuit 
of a criminal, and take him from thence. This is what is called 
a violation of territory; and there is nothing more generally ac- 
knowledged as an injury that ought to be repelled by eveiy state 
that would not suffer itself to be oppressed." The rule is too 
familiar, even as between the states of this confederacy, to re- 
quire that it should be insisted on at large. 

But the civil war which England was prosecuting against 
various individuals was insisted on as a ground of protection: 
and I am free to admit, that the strongest possible color for the 
extraordinary right claimed is to be derived from taking the 
United States to stand in the attitude of a neutral nation with 
respect to two parties engaged in actual war; England on one 
side, and Van Hansselaer, Durfee, and their associated assailants, 
on the other. This is what Grotius calls mixed war; being, as 
he says, '* that which is made on one side by public authority, 
and on the other by mere private persons:" B. 1, c. 3, sec. 1. 
Butherforth retains the same distinction tmder the same name, 
in characterizing a contest between a nation, as such, and its ex- 
ternal enemies coming in the form of pirates, or robbers; asso- 
ciates, he says, who act together occasionally, and are not united 
into civil society : Buth., b. 2, c. 9, sec. 9. The several inva- 
sions of England by Perkin Warbeck and Lord Herise men- 
tioned in 1 Hal. P. 0. 164, the former of which is also noticed 
in Calvin's case, 7 Co. 11, 12, are instances of such a war; the 
books saying that, in England, such offenders must be tried by 
martial law, for a reason which I shall hereafter consider. Let 
Durfee, then, be regarded as England's enemy, who has, with 
Wells, the boat-owner, and his boat, taken shelter in the neutral 
territory of the United States. Had England any right to follow 
him there ? None, say the books, not even in the heat of contest, 
had he been an enemy pursued and flying for shelter across the 

346 People v. McLeod. [New York, 

line : 1 Kent* s Oom. 119, 120. Independently of fresh pnreniit, no 
"writer on the law of nations ever ventured the assertion that one of 
two belligerents can lawfully do any hostile act against another 
upon neutral ground. If it be not a plain deduction from com- 
mon sense , yet, on principles in which publicists uniyersally agree^ 
all rightful power to harm the person or property of any one, 
dropped from the Jiands of McLeod and his associates the mo- 
ment they entered a country with which their sovereign was at 
peace. No exception can be made consistently with national 
safety. Make it in favor of the subordinate dvil authorities of 
a neighboring state, and your territory is open to its constables; 
in favor of their military, you let in its soldiery; in favor of its 
sovereign, and you are a slaye. Allow him to talk of the acts 
and machinations of our citizens, and send over his soldiers on 
the principle of protection, to bum the property or take the 
lives of the supposed offenders, and you give up, to the mid- 
night assault of exasperated strangers, the dwelling and life of 
every inhabitant on the frontier whom they may suspect of a dis- 
position to aid their enemies. Never, since the treaty of 1783, 
had England, in time of peace with us, any more right to attack 
an enemy at Schlosser, than would the French have at London, 
in time of peace with England. 

*' The full domain," says Yattel, "is necessarily a peculiar 
and exclusive right. The general domain of a nation is full 
and absolute; since there exists no authority upon earth by 
which it can be limited; it therefore excludes all right on the 
part of foreigners:" B. 2, c. 7, sec. 79. The same writer 
defines the jurisdiction of courts within that domain. '^The 
sovereignty united to the domain, establishes the jurisdiction of 
the nation in lier territories. It is her province, to exercise jus- 
tice in all the places under her jurisdiction; to take cognizance 
of the crimes committed, and the differences that arise in the 
country:" Id., sec. 84. "It is unlawful," says the same writer, 
" to attack an enemy in a neutral country, or to commit in it 
any other act of hostility:" B. 3, c. 7, sec. 132. "A mere 
claim of territory," says Sir William Scott, a British judge of 
admiralty, " is tmdoubtedly very high. When the fact is estab- 
lished, it overrules every other consideration:" TJie Vrow Anna 
Catharina, 5 Bob. Adm. 15. And he refused to recognize a right 
of capturing an enemy's ship within a marine league of our 
coast: The Anna La Porte, Id. 332. "We only exercise the 
rights of war in our own territory," says Bynkershoek, " or in 
the enemy's, or in a territory which belongs to no one:" Quest. 

July, 1841.] People v. McLeod. 347 

Jnr. Pub., b. 1, c. 8. '* There is no exception," says Chan- 
cellor Kent, to the rule that every voluntaxy entrance into neu- 
tral territory, with hostile pxuposes, is absolutely unlawful:" 1 
Kenfs Com. 119, 4th ed. '* The jurisdiction of courts," says 
Marshall, C. J., '* is a branch of that which is x>ossessed by the 
nation as an independent sovereign power. The jurisdiction of 
the nation, within its own territory, is necessarily exclusive and 
absolute. It is susceptible of no limitation not imposed by it- 
self: any restriction derived from an external source would im- 
ply a diminution of its sovereignty to the extent of the restric- 
tion, and an investment of that sovereignty to the same extent 
in that power which could impose sudi restriction:" TJie 
Schooner Exchange v. McFadden et oZ., 7 Cranch. 116, 136. 
That these are not rules of yesterday, but have formed a part 
of the acknowledged law of nations for nearly two thousand 
years, may be seen in Grotius, b. 3, c. 4, sec. 8, n. 2. He 
says, we may not kill or hurt an enemy in a country at peace 
with us. ** And this proceeds, not from any privilege attached 
to their persons, but from the right of that prince in whose 
dominions they are. For all civil societies may ordain that no 
violence be offered to any one in their territories but by a pro- 
ceeding in a judicial way, as we have proved out of Euripides: 

'If you can charge these gaesti with an offense, 
Do it by law, forbear all violence.* 

But in courts of justice, the merit of the person is considered, 
and this promiscuous pxupose of hurting each other ceases. 
Livy relates, that seven Carthaginian galleys rode in a port be- 
longing to Syphax, who, at that time, was at peace both with the 
Carthaginians and Bomans; and that Scipio came that way with 
two galleys. These might have been seized by the Carthaginians 
before they had entered the port, but being forced by a strong 
wind into the harbor, before the Carthaginians could weigh 
anchor, they durst not assault them in the king's haven." 
Several more modem instances of a like character are stated by 
MoUoy: De Jur. Mar., b. 1, c. 1, sec. 16. It is said to be a 
rule in the modem law of nations, that not only must the 
parties refrain from hostilities while in a neutral poi*t; but 
should one set sail the other must not, till twenty-four hours 
after: Martens' L. of Nations, b. 8, c. 6, sec. 6, note. And a 
doctrine about as strong was laid down by Sir William Scott, in 
the case of the Twee Gebroeders, 3 Bob. Adm. 162. 

To apply these authorities: The affidavit of McLeod suggests 
that Durfee had, on the day before he was killed, aided in trans- 

848 People v. McLeod. [New York, 

porting military stores to Navy island, and surmises that he in- 
tended to continue the practice. I put it again that the war, if 
any, was by England against him and his associates — not against 
the United States. But what right, I again ask, had she to pur- 
sue him into a territory at peace? That she had none, I have 
shown from her own judge sitting in the forum of nations, from 
one of our judges sitting in the like forum, from authoritative 
publicists, and from all antiquity. I have shown that even 
punic faith felt itself bound to let any enemy go free, whom it 
accidentally met on neutral ground. Within tiie territory of a 
nation at peace, all belligerent power, all belligerent right, is 
paralyzed. They have passed from the dominion of arms to 
that of law. " No violence can be offered," says Grotius; '' but 
you must proceed in a judicial way." The only offense against 
our law which Durfee had committed, was in setting on foot a 
hostile expedition against England with ^hom we were at peace. 
So far I admit he was guilty, according to the suggestion in Mc- 
Leod's affidavit. He had made himself a principal in the ag- 
gression of McKenzie and others; for there are no accessories 
in misdemeanor. The courts were open. Why did not England 
prefer her complaint ? Was it competent for her to allege that 
our justice was too mild or too tardy, and therefore substitute 
the firebrand and musket? To admit such a right of inter- 
ference on any ground or in any way, says Marshall, would be a 
proportional diminution of our own sovereigmty, of which judicial 
power makes a part. " The law of nations," says Kutherforth, 
"is not the only measure of what is right or wrong in the inter- 
course of nations with each other. Every nation has a right to 
determine, by positive law, upon what occasions, for what pur- 
poses, and in what numbers, foreigners shall be allowed to come 
within its territories: Buth., b. 2, c. 9, sec. 6; Yattel, b. 2, c. 
7, sec. 94. 

It follows from the authorities cited, that a right to carry on 
mixed war never extends into the territory of a nation at peace. 
It can be exercised on the high seas only, or in a territory which 
is vacant and belonging to nobody. It is in modem law con- 
fined mainly to the case of pirates. But even these can not be 
arrested in the territory of a foreign nation at peace with the 
sovereign of the arresting ship: Molloy de Jur. Mar., b. 1, c. 
1, sec. 16. But admitting that England might protect a man 
against our jurisdiction, by saying he did a public act under her 
authority, does it not behoove her at least to show that she has 
acted within the limits of her own jurisdiction, especially where 

July, 1841.] People v. McLeod. 349 

she has prescribed them to herself ? Shall her declaration inure 
to deprive us of power where she is exceeding her own ? And 
this brings me to inquire whether the transaction in question 
be such as any national right so far examined can sanction. She 
puts herself, as we have seen, on the law of defense and neces- 
sity; and nothing is better defined nor more familiar in any 
system of jurisprudence, than the juncture of circumstances 
which can alone tolerate the action of that law. A force which 
the defendant has a right to resist, must itself be within strik- 
ing distance. It must be menacing, and apparently able to in- 
flict physical injury unless pi^dvented by the resistance which he 
opposes. The rights of self-defense and the defense of others 
standing in certain relations to the defender, depend on the 
same ground; at least they are limited by the same principle. 
It will be sufficient, therefore, to inquire of the right so far as it 
is strictly personal. All writers concur in the language of 
Blackstone, 3 Bl. Com. 4, that, to warrant its exertion at all, 
the defender must be forcibly assaulted. He may then repel 
force by force, because he can not say to what length of rapine 
or cruelly the outrage may be carried, unless it were admissible 
to oppose one violence with another. '* But,'^ he adds, " care 
must be taken that the resistance does not exceed the bounds of 
mere defense and prevention; for then the defender would him- 
self become the aggressor." The condition upon which the 
right is thus placed, and the limits to which its exercise is con- 
fined by this eminent writer, are enough of themselves, when 
compared with McLeod's affidavit, to destroy all color for saying 
the case is within that condition, or those limits. The Caroline 
was not in the act of making an assault on the Canadian shore; 
she was not in a condition to make one; she had returned from 
her visit to Navy island, and was moored in our own waters for 
the night. Instead of meeting her at the line and repelling 
force by force, the prisoner and his associates came out under 
orders to seek her wherever they could find her, and were in fact 
obliged to sail half the width of the Niagara river, after they 
had entered our territory, in order to reach the boat. They 
were the assailants; and their attack might have been legally 
repelled by Purfee, even to the destruction of their lives. The 
case made by the affidavit is in principle this: a man believes 
that his neighbor is preparing to do him a personal injuiy. He 
goes half a mile to his house, breaks the door, and kills him in 
his bed at midnight. On being arraigned, he cites the law of 
nature; and tells us that he was attacked by his neighbor, and 

360 People v, McLeod. [New York, 

slew him on the principle of mere defense and prevention; or, 
in the language of the plea of aon ctssatiU demesne — "he made 
an assault upon me, and would then and there have beat me, 
had I not immediately defended myself against him; wherefore 
I did then and there defend myself as I lawfully might for the 
cause aforesaid; and, in doing so, did necessarily and unavoid- 
ably beat him, doing him on such occasion no unnecessary dam- 
age. And if any damage happened, it was occasioned by his 
assault and my necessary defense." 

To excuse homicide in self-defense, says another English 
writer, the act must not be premeditated. He must first retreat 
as far as he safely can, to avoid the violence threatened by the 
party whom he is obliged to kill. The retreat must be with an 
honest intention to escape; and he must flee as far as he con- 
veniently can by reason of some impediment, or as far as the 
fierceness of the assault will permit him, and then in his defense, 
he may kill his adversary: 1 Buss, on Cr. 544. 

Such is the law of mixed war on neutral ground. The books 
cited are treating of no narrow technical rule peculiar to the 
common law; but the law of nature and of nations, the same 
everywhere, of such paramount force as no municipal or inter- 
national law could ever overcome; and intelligible to every liv- 
ing soul. It is easily applied, both as between individuals in 
civil socieiy and nations at peace. Passing the boundary of 
strict not fancied necessity, the remedy lies in suit by the state 
or citizen whose rights have been violated, or by demanding the 
person of the mischievous fugitive who has broken the criminal 
law of a foreign sovereign. Accordingly, Puffendorf , after con- 
sidering the rights of private war in a state of nature, adds: 
" But we must by no means allow an equal liberty to the mem- 
bers of civil states. For here, if the adversary be a foreigner, 
we may resist and repel him any way, at the instant when he 
comes violently upon us: But we can not, without the sov- 
ereign's command, either assault him, whilst his mischief is only 
in machination, or revenge ourselves upon him after he hath per- 
formed the injury against us:" Puf., b. 2, c. 5, sec. 7. The 
sovereign's command must, as we have seen, in order to warrant 
such conduct in his subject, be a denunciation of war. 

England, then, could legally impart no protection to her sub- 
jects concerned in the destruction of the Caroline, either as a 
pariy to any war, to any act of public jurisdiction exercised by 
way of defense, or sencUng her servants into a territoiy at peace. 
That her act was one of mere arbitrary usurpation was not de- 

July, 1841.] People v. McLeod. 351 

nied on the argument, nor has this, that I am aware, been denied 
by any one except England herself. I should not, therefore, 
have examined the nature of the transaction to any considerable 
extent, had it not been necessary to see whether it was of a 
character belonging to the law of war or peace. I am entirely 
satisfied it belongs to the latter: that there is nothing in the 
case except a body of men, without color of authority, bearing 
muskets and doing the deed of arson and death; that it is im* 
possible eyen for diplomatic ingenuity to make it a case of legiti- 
mate war, or to show that it can plausibly claim to come within 
jmy law of war, public, priyate, or mixed. Even the British 
minister is too just to call it war; the British goyemment do 
not pretend it was war. 

The result is, that the fitting out of the expedition was an un- 
warrantable act of jurisdiction exercised by the proyindal 
goyernment of Canada oyer our citizens. The moyements of the 
boat had been watched by the Canadian authorities from the 
opposite shore. She had been seen to yisit Navy island the day 
before. Those authorities, being conyinced of her delinquency, 
sentenced her to be burned; an act which all concerned knew 
would seriously endanger the liyes of our citizens. The sentence 
was, therefore, equiyalent to a judgment of death; and a body of 
soldiers were sent to do the office of executioners. Looking at 
the case independently of British power, no one could hesitate 
in assigning the proper character to such a transaction. The 
parties concerned haying acfced entirely beyond their territorial 
or magisterial power, are treated by the law as indiyiduals pro- 
ceeding on their own responsibility. If they haye burned, it ia 
arson; if a man has been killed, it is murder. 

This brings us to the great question in the cause. We haye 
seen that a capital offense was committed within our territory in 
time of peace; and the remaining inquiry is, whether England 
has placed the offenders aboye the law and beyond our jurisdic- 
tion by adopting and approying such a crime. It is due to her, 
in the first place, to deny that it has been so adopted and ap- 
proyed. She has approyed a public act of legitimate defense 
only. She can not change the nature of things. She can not 
turn that into lawful war which was murder in time of peace. She 
may, in that way, justify the offender as between him and his 
own goyernment. She can not bind foreign courts of justice by 
insisting that what in the eye of the whole world was a delib- 
erate and prepared attack, must be protected by the law of self- 

852 People v. McLeod. [New York, 

In the second place, I deny that she can, in time of peace, 
send her men into our territory, and render them impervious to 
our laws, by embodying them and putting arms in their hands. 
She may declare war: but if she claim the benefit of peace, as 
both nations have done in this instance, the moment any of her 
citizens enter our territory, they are as completely obnoxious to 
punishment by our law, as if they had been bom and always 
resided in this country. I will not, therefore, dispute the con- 
struction which counsel put upon the language or the acts of 
England. To test the law of the transaction, I will concede, 
that she had by act of parliament conferred all the power which 
can be contended for in behalf of the Canadian authorities, as 
far as she could do so; that, reciting the danger from piratical 
steamboats, she had authorized any colonel of her army or 
militia, on suspecting that a boat' lying in our waters intended 
illegally to assault the Canadian shore, to send a file of soldiers 
in the day or night time, bum the boat, and destroy the lives of 
the crew; that such a statute should be executed; but that one 
of the soldiers failing to make his escape, should be arrested, 
and plead the act of parliament. Such an act would operate 
well, I admit, at Chippewa, and untQ the men had reached the 
thread of the Niagara river. It would be an impenetrable shield 
till they should cross the line of that country where parliament 
have jurisdiction. Beyond, I need not say, it must be consid- 
ered as waste paper. Even a subsequent statute ratifying and 
approving the original authority could add nothing to the pro- 
tection proffered by the first. It would be but the junction of 
two nullities. So says Mr. Locke (On Gk>v., b. 2, c. 19, sec. 
239) of a king even in his own dominions: ** In whatsoever he 
has no authority, there he is no king, and may be resisted; for 
wheresoever the authority ceases, the king ceases too, and be- 
comes like other men who have no authority." I shall not cite 
books to show that the queen of England has no authority in 
this state in a time of peace. 

I will suppose a stronger case: that England being at war 
with France, should, by statute or by order of the queen, au- 
thorize her soldiery to enter our territory and make war upon 
such French residents as might be plotting any mischief against 
her. Could one of her soldiers indicted for the murder of a 
French citizen plead such a statute or order in bar? If he could 
not as against a stranger and sojourner in our land, I need not 
inquire whether the same measure of protection be due to Dur- 
fee, our fellow-citizen. 

July, 1841.] People v. McLbod. 353 

'* The laws of no nation/' says Mr. Justice Story, '' can jnstiy 
extend beyond its own territories except so far as regards its 
own citizens. They can have no force to control the sovereignly 
or rights of any other nation within its own jurisdiction. It 
would be monstrous to suppose that our revenue officers were 
authorized to enter into foreign ports and territories for the 
purpose of seizing vessels which had offended against our laws:" 
The ApoUcm, 9 Wheat. 362, 371, 372. He has examined the 
question at large in his book on the Conflict of Laws, c. 2, sec. 
17-22, p. 19 of 2d ed. The result is that no nation is bound to 
respect the laws or executive acts of any foreign government in- 
tended to control or protect its citizens while temporarily or 
permanentiy out of their own countiy, until it first declare war. 
Its citizens are then subject to the laws of war. Till that comes, 
they are absolutely bound by the laws of peace. While this 
prevails, a foreign executive declaration saying — ''My subject 
has offended against your criminal laws; I avow his act: punish 
me; but impute nothing to him" — ^is a nullity. As well might a 
nation send a company of soldiers to contract debts here, and 
forbid them to be sued, saying: " The debt was on my account^ 
discharge my men, and charge it over against me!" Indeed, it was 
even urged on the argument, that the letter of Mr. Fox had taken 
away the remedy of Wells, the boat-owner, by an action of tres- 
pass against McLeod for burning the boat. This action having, it 
seems, been settied, counsel resorted to it as an illustrative case. 
Another action brought against him for shooting a horse on the 
same occasion, it was said, is also defeated by the same principle. 
Counsel spoke as if Schlosser had undergone a sack, and its booty 
had become matter of belligerent right in the soldiery. Surely, 
the imaginations of counsel must have been heated. It seems 
necessazy to remind them again and again, even in affirmance of 
their own admission, that we are sitting to administer the laws 
of a countiy which was at peace with England when she sent in 
her soldiery. If they mean that the approval and demand in 
Mr. Fox's letter should, under the law of peace, have the sweep- 
ing effect which is claimed for it, they are bound to show that 
the royal mandate improves by importation. The queen has no 
power at home to take away or suspend, for a moment, the juris- 
diction of her own courts. Nor would a command to discharge 
any man without trial who should be suspected of having mur- 
dered her meanest subject, be deemed a venial error. It is 
justiy a source of the Briton's pride, that the law by which his 
life and property are protected can not be suspended even by his 

Ak. Deo. Voi^ XXXVn-23 

354 People v. McLeod. [New York, 

monarch; that the sword of justice is holden by her own inde- 
pendent ministers, as a defense for those who do well, but con- 
stantly threatening and ready to descend upon the violator of 
property or personal safety; as the instrument of a municipal law 
which knows not of any distinction between the throne and 
the cottage — ^a law constantly struggling in theory at least, to 
attain a perfection that shall bring all on earth to do it rev- 
erence; *' the greatest as fearing its power, and the least as not 
unworthy of its care.'* 

Much was said on the argument, about the extreme hard- 
ship of treating soldiers as criminals, who, it was insisted, are 
obliged to obey their sovereign. The rule is the same in resi)ect 
to the soldier as it is with regard to any other agent who is 
bound to obey the process or command of his superior. A 
sheriff is obliged to execute a man who is regularly sentenced 
to capital execution in this state. But should he execute a man 
in Canada under such sentence, he would be a murderer. A 
soldier in time of war between us and England, might be com- 
pelled by an order from our government to enter Canada and 
fight against and kill her soldiers. But should congress pass a 
statute compelling him to do so on any imaginable exigency, or 
under any penalty, in time of peace, if he should obey and kill 
a man, he would be guilty of murder. The mistake is in sup- 
posing that a sovereign can compel a man to go into a neigh- 
boring country, whether in peace or war, and do a deed of in- 
famy. This is exemplified in the case of spies. A sovereign 
may solicit and bribe; but he can not command. A thousand 
commands would not save the neck of a spy, should he be caught 
in the camp of the enemy: Yattel, b. 3, c. 10, sec. 179. It is a 
mistake to suppose that a soldier is bound to do any act con- 
trary to the law of nature, at the bidding of his prince: Id., b. 
1, c. 4, sees. 53, 54; Id., b. 3, c. 2, sec. 15; Grot., b. 2, c. 26, sec. 
8; n. 2 and 8; Puf., b. 8, c. 1, sees. 6, 7. But if he were, he 
must endure the evil of living imder a sovereign, who will issue 
such conmiands. It does not follow that neighboring countries 
must submit to be infested with incendiaries and assassins, be- 
cause men are obnoxious to punishment in their own country 
for being desirous to go through life with bloodless hands and 
a quiet conscience. The Parisians thought themselves bound 
to obey Charles IX., when he ordered them to massacre the 
Huguenots. Supposed they had obeyed a similar order to mas- 
sacre the Huguenots in England : would such an order have been 
deemed a valid plea, on one of them being arraigned in the 

July, 1841.] People v. McLeod. 355 

queen's bench ? It might have been pleaded to an accusation 
of murder in France — it would have been good, as between the 
criminal and his own sovereign; but hardly, I suspect, have 
been deemed so by Queen Elizabeth's judges. The simple rea- 
son would have been that Charles IX. had no jurisdiction in 
England. He might have threatened the government and de- 
clared war, if such a meritorious servant, a defender of the 
church, should not be liberated by the judges. But there is no 
legal principle on which the decrees of foreign courts, or the 
legislation of foreign parliaments, could have ousted the judges 
of jurisdiction. Charles might have ordered his minister to 
call the massacre a public act, planned and executed by himself^ 
he havingauthority to defend and protect his established church; 
and demand a release of the man. All this would have added 
no force to the plea. Neither Elizabeth herself, nor any of the 
Tudors, arbitrary as the government of England was, would 
have had power directly to take away the jurisdiction of the 
judges. Coke, with a law book in his hand, could have baffled 
the scepter within its own territorial jurisdiction. It should » 
in justice, be remarked, that Orte, the governor of Bayonne, 
and many of his companions in arms, refused to co-operate in 
the massacre at home, and were never punished for disobedience. 
He replied to the king, that he had sounded his garrison, and 
found many brave soldiers among them, but not a single execu- 
tioner. Suppose a prince should command a soldier to com- 
mit adultery, incest, or perjury; the prince goes beyond his 
constitutional power, and has no more right to expect obedience 
than a corporal who should summarily issue his warrant for the 
execution of a soldier: Vide Burl. Law of Nature, vol. 1, pt. 2, 
c. 11, sec. 8. 

Eveiy political and civil power has its legal limits. The au- 
tocrat may indeed takes the lives of his own subjects, for dis- 
obeying the most arbitrary commands; but even his behests can 
not impart protection to the merest slave as against a foreign 
government. Public war itself has its jurisdictional limits. 
Even that, in its pursuit after a flying enemy, is, we have seen, 
arrested by the line of a country at peace. Beside the limit 
which territory thus imposes, there are also, even in general 
war, other jurisdictional restraints, as there are in courts of jus- 
tice. An order emanating from one of the hostile sovereigns 
will not justify to the other every kind of perfidy. The case of 
spies has been already mentioned. An emissary sent into a 
camp with orders to corrupt the adverse general, or bribe the 

356 People u McLeod. [New York, 

soldieij, would stand justified to his immediate sovereign (Yat- 
tel, b. 3, c. 10, sec. 180); though even he could not legally 
punish a refusal. In respect to the enemy, the orders would be 
an obvious excess of jurisdiction. The emissaries sent by Six 
Henry Clinton in 1781 to seduce the soldiers of the Pennsylvania 
line, falling into the hands of the Americans, were condemned 
and immediately executed: 4 Marsh. Life of Washington, 366, 
1st ed. Entering the adverse camp to receive the treacherous 
propositions of the general, is an offense much more venial. It 
is even called lawful, in every sense, as between the sovereign 
and employee: Yatt., b. 3, c. 10, sec. 181. Yet, in the case of 
Major Andre, an order to do so was, as between the two hostile 
countries, held to be an excess of jurisdiction. These cases are 
much stronger than any which can be supposed between nations 
at peace. In time of war, such perfidy is expected. In time of 
peace, every citizen, while within his own territory, has a double 
ground for supposing himself secure — the legal inviolability of 
that territory, and the solemn pledge of the foreign sovereignty. 

The distinction, that an act valid as to one may be void as to 
another, is entirely familiar. A man who orders another to 
commit a trespass, or approves of a trespass already committed 
for his benefit, may be bound to protect his servant, while it 
would take nothing from the liability of the servant to the party 
injured. As to him, it could merely have the effect of adding 
another defendant, who might be made jointly or severally lia- 
ble with the actual wrong-doer. A case in point is mentioned 
by Yattel (b. 3, c. 2, sec. 15). If one sovereign order his re- 
cruiting officer to make enlistments in the dominion of another, 
in time of peace between them, the officer shall be hanged not- 
withstanding the order, and war may also be declared against 
the offending sovereign. Vide a like instance. Id., b. 1, c. 6, sec. ' 

What is the utmost legal effect of a foreign sovereign approving 
of a crime which his subject has committed in a neighboring ter- 
ritoiy ? The approval, as we have already in part seen, can take 
nothing from the criminality of the principal offender. What- 
ever obligation his nation may be under to save him harmless^ 
this can be done only on the condition that he confine himself 
within her territory: Yatt., b. 2, c. G, sec. 74. Then, by re- - 
fusing to make satisfaction, to punish, or to deliver him up, on 
demand, from the injured country, or by approving the offense, 
the nation, says Yattel, becomes an accomplice: Id., sec. 76. 
Blackstone says, an accomplice or abettor: 4 Com. 68; and 

Jtdy, 1841.] People v. McLeod. 857 

BuUierforthy stdll more nearly in the language of the English 
law, an accessory after the fact: B. 2, c. 9, sec. 12. No book 
supposes that such an act merges the original offense, or renders 
it imputable to the nation alone. The only exception lies in the 
case of a crime committed by an embassador; not because he is 
guiltless, but by reason of the necessity that he should be priv- 
ileged, and the extraterritorial character which the law of mo- 
tions has, therefore, attached to his person. Hence, say the 
books, he can be proceeded against no otherwise than by a com- 
plaint to his own nation, which will make itself a parly in his 
crime if it refuse either to punish him by its authority, or to 
deliver him up to be punished by the offended nation: Buth., b. 
2, c. 9, sec. 20. Independently of this exception, therefore, 
Eutherforth insists, with entire accuracy, that ** as far as we con- 
cur in what another man does, so far the act is our own; and 
the effects of it are chargeable upon us as well as upon him:" 
Euth., b. 1, c. 17, sec. 6. A nation is but a moral entity; and» 
in the nature of things, can no more wipe out the offense of an-, 
other by adopting it, than could a natural person. And the 
« learned writer just cited accordingly treats both cases as stand- 
ing on the same principle: B. 2, c. 9, sec. 12. "Nothing is 
more usual,'' says Puffendorf, " than that every particular ac- 
complice in a crime be made to suffer all that the law inflicts:'* 
B. 3, c. 1, sec. 5. Yattel says, of such a case (b. 2, c. 6, sec» 
75): "If the offended state have the offender in her power, she 
may without scruple punish him." Again, if he have escaped 
and returned to his own country, she may apply for justice to 
his sovereign, who ought, under some circumstances, to deliver 
him up: Id., sec. 76. Again, he says, " she may take satisfac- 
tion for the offense herself, when she meets with the delinquent 
in her own territories:" B. 4, c. 4, sec. 52. I before cited two 
instances in which positive orders by his sovereign to commit a 
crime, are distinctly held to render both the nation and its sub- 
ject obnoxious to punishment: Yatt., b. 3, c. 2, sec. 15; Id., b. 
1., c. 6, sec. 75; vide also 1 Burl., pt. 2, c. 11, sec. 10. 

Was it ever suggested by any one before the case of McLeod 
arose, that the approval by a monarch should oust civil jurisdic- 
tion, or even so much as mitigate the criminal offense ? nay, that 
the coalition of great power, with great crime, does not render it 
more dangerous, and therefore more worthy of punishment 
under every law by which the perpetrator can be reached? 
Gould approbation and avowal have saved the unhappy Maxy 
queen of Scots, where would have been the civil jurisdiction of 

358 People v. McLeod. [New York, 

bbeth^B commiflsioners? The yeiy chaige of an attempt hj 
Maiy to dethrone and assassinate the British queen, implied the 
approbation and active concurrence of one crowned head at 
least. Could the criminal have been saved by any such consid- 
erations, the enterprise might truly have been avowed as one 
which had been planned by the leading governments of Gatholio 
Europe. The pope, then having at least some pretensions to 
jurisdiction even in England, had openly approved it under his 
seal. The Spanish embassador at Paris was a party relied upon 
to follow up the event with an invasion. Would James, the son 
of the accused, have hesitated to join in the avowal, could he have 
thus been instrumental in saving the life of his mother? Yet 
the principle was not thought of in the whole course of that 
extiaordinazy affiur. Mary openly avowed her general treason 
as a measure of defense and protection to herself, though she 
denied all participation in the plot to assassinate Elizabeth. Yet 
the only ground taken, was the technical one (not the less valid 
because technical) that the accused was person^y privileged as a 
monarch and could not be tried under the English law which re- 
qiiired a jury composed of her peers. It was added, that she 
came into the kingdom under the law of nations, and had en- 
joyed no protection from the English law, having been con- 
tinually kept as a prisoner: Vide the case stated and examined in 
the light of international law, 2 Ward's L. of Nations, 564. No 
one pretended that her approbation, or that of a thousand mon- 
archs, could have reflected any degree of exemption from judi- 
cial cognizance, upon the alien servants in her employment. 
Such a principle would have filled England with an army, in 
time of peace, disguised as Jesuits; for the bigotry of monarchs 
would, at that day, have led them to avow any system of perni- 
cious espionage which could have served the purposes of the 
pope by executing his bull of excommunication against Eliza- 

Canada again being disturbed, and our citizens aiding the re- 
volt by boats, provisions, or money, the purposes of England 
would certainly require such conduct to be put down at all 
events. Adopt the principle, that she may by avowal protect 
her soldiery, who steal upon our citizens at midnight, from all 
punishment at the common law, and before you could get even 
a remonstrance from Washington, your whole frontier might be 
made a tabula rasa. No. Before England can lawfully send a 
single soldier for hostile purposes, she must assume the reepon- 
sibiliiy of public war. 

July, 1841.] People v, McLeod. 359 

Her own interests demanding the application of the rule, she 
perfectly understands its force. What regard have her courts 
ever paid to the voice of public authority on this side the line, 
when it sought to cover even territory to which the United States 
denies her title? The mere act of taking a census in the dis- 
puted territory under the authority of Maine, was severely pun- 
ished by the English municipal magistrates. Had a posse of 
constables or a company of militia bearing muskets been sent to 
aid the censor, in what book or in what usage could she have 
found that this would divest her courts of jurisdiction, and put 
the cabinet of St. James to a remedy by a remonstrance or war ? 
Had the posse been arrested by her sheriff, and in mere defense 
had killed him, and this nation had, after some two or three 
years, avowed the act, would she have thought of conceding that, 
in the mean time, all power of her courts over the homicides had 
been suspended, or finally withdrawn ? 

But it is said of the case at bar, here is more than a mere ap- 
proval by the adverse government; that an explanation has been 
demanded by the secretaiy of state, and the British embassador 
has insisted on McLeod's release; and counsel claim for the 
joint diplomacy of the United States and England some such 
effect upon the power of this court as a certiorari from us would 
have upon a county court of general sessions. It was spoken 
of as incompatible with a judicial proceeding against McLeod 
in this state; as a suit actually pending between t wo nati ons, 
wherein the action of the general government comes in collision 
with, and supersedes our own. To such an objection the an- 
swer is quite obvious. Diplomacy is not a judicial, but exec- 
utive function; and the objection would come with the same 
force, whether it were urged against proceeding in a court of 
this state or the United States. Whether an actual exertion of 
the treaty-making power, by the president and senate, or any 
power delegated to congress by the federal constitution, could 
work the consequences contended for, we are not called upon to 
inquire. Whether the executive of the nation (supposing the 
case to belong to the national court), or the executive of this 
state, might not pardon the prisoner, or direct a nolle prosequi 
to be entered, are considerations with which we have nothing 
to do. 

The executive power is a constitutional department in this, 
as in every well-organized government, entirely distinct from the 
judicial. And that would be so, were the national government 
blotted out, and the state of New York left to take its plaoe as 

360 People r. McLeod. [New York, 

an independent nation. Not only are our constitations entirely 
explicit in leaving the trial of crimes ezclusiYely in the hands 
of the judiciary; but neither in the nature of things, nor in 
sound policy, can it be confided to the executive power. That 
can never act upon the individual offender; but only by requi* 
sition on the foreign government; and in the instance before us,. 
"^ it has no power even to inquire whether it be true that McLeod 
V has personally violated the criminal laws of this state. It has 
charge of the question in its national aspect only. It must rely 
on accidental information, and may place the whole question on 
diplomatic considerations. These may be entirely wide either 
of the fact or the law as it stands between this state and the ac- 
cused. The whole may turn on questions of national honor^ 
national strength, the comparative value of tiational intercourse^ 
or even a point of etiquette. 

Upon the principle contended for, every accusation which 
has been drawn in question by the executive power of two na- 
tions, can be adjusted by negotiation or war only. The indi- 
vidual accused must go free, no matter to what extent his case 
may have been misapprehended by either power. No matter 
how criminal he may have been, if his country, though acting on 
^se representations of the case, may have been led to approve 
>f the transaction and negotiate concerning it, the demands of 
lal justice are at an end. 
Under circumstances the executive power might, in the 
exercise of its discretion, be bound to disregard a venial offense 
as no breach of treaty, which the judiciary would be obliged 
to punish as a breach of international law. Suppose some of 
our citizens to attack the British power in Canada, and the 
queen's soldiers to follow the heat of re pelling them by crossing 
the line and arresting the offenders, doing no damage to any 
one not actually engaged in the conflict. The line being abso- 
lutely impassable in law for hostile purposes, the arrest on this 
side would be a technical falso imprisonment, for which we 
should be bound to convict the soldiers if arrested here; while 
the executive power might overlook the intrusion as an acci-f 
dental and innocent violation of national territory: Yatt., b. 4; 
c. 4, sec. 43. ^ 

I forbear now to notice particularly some of the legal passages 
and cases which were referred to by the prisoner's counsel in 
the course of the argument; not for the reason that I have omit- 
ted to examine them, but because I consider them inapplicable 
under the views I have felt it my duty to take of the prisoner's 

July, 1841.] People v. McLeod. 361 

case. They weie principally of three iJasses: firsJu^jiassageB 
from books on the law of nations as to what is public war, and 
the protection due to soldiers while en(^'aged in the prosecution 
jot such a war by their sovereign against a public enemy; 
"^ secondly, the general obligations of obedience as between him 
and his sovereign, whether in peace or war; and thirdly, cases 
from our own books relative to the conflicting powers of the 
general and state governments. The case of ElphinsUme v. Bed- 
reechund, 1 Enapp, 316, related to the breach of an actual 
military capitulation entered into during an acknowledged 
public war between England and one of the petty sovereignties 
of India. 

In considering the question of jurisdiction, I have also forborne 
to notice that branch of the affidavit which sets up an cUibi. Mc- 
Leod's counsel very properly omitted to insist on it as at all 
strengthening the claim of privilege. Indeed they said the clause 
was put in merely by way of protestando. If it was inserted 
with the intention of having it taken as true upon this motion, 
that alone would destroy all pretense for any objection to our 
jurisdiction. His surrender was demanded upon the hypothesis 
that he was acting under public authority. If in truth he was 
not, or was not acting at all, he enjoys according to his own 
concession no greater privilege than any other man. The es- 
sential circumstance relied on as going to the question of juris- 
diction, turns out to be fictitious; and the argument must be 
that we have no power try the question of cUibi. On that and 
every other lawful ground of defense he will be heard by coun- 
sel on his trial. 

It is proper to add that if the matters urged in argument could 
have any legal effect in favor of the prisoner, I should feel en- 
tirely clear that they would be of a nature available before the 
jury only. And that, according to the settied rules of proceed- 
ing on habeas corpus, we should have no power even to con- 
sider them as a ground for discharging the prisoner. I took 
occasion to show in the outset that in no view can the evidence 
for the prosecution or the defense be here examined independ- 
entiy of the question of jurisdiction, and I entertain no doubt 
that whenever an indictment for a murder committed within 
our territory is found, and the accused is arrested, these cir- 
cumstances give complete jurisdiction. 

I know it is said by the English books, that even in a case of 
mixed war, viz., a hostile invasion of England by private per- 
sons, thejcpmmon law_coudia. have not jurisdiction. It was so 

362 People v. McLeod. [New York, 

held in Perkin Warbeclfs case. He was ponisbed with death hj 
sentence of the constable and marshal, who it is said in CaMn*9 
case, 7 Co. 11, 12, had exclusiye juiisdiction: S. P., 1 Corw. 
Hawk., c. 2, sec. 6, p. 9. See Dy. 145, a.' But that rests on 
a distribution of judicial power entirely unknown to this state 
or this nation. The court of the constable and marshal seems 
to liave had an ancient right not very well defined by the 
common law, of trying aU militaiy offenses, as ap])ears by the 
Stat. B. 2, c. 2, vide 2 Pick. St. at Large, p. 310, which was 
passed to settle conflicting claims of jurisdiction between that 
and the ordinazy courts. Vide also 3 Inst. 48. The whole is 
obviously inapplicable to this countiy ; and I suspect pretty much 
obsolete in England. It never can have been held in England, 
or any countiy, that where a common law court is proceeding on 
an indictment for a common law offense against one arrested 
and brought before it, a mere suggestion by affidavit that the 
offense imputed pertains to deeds of arms, either in a public or 
mixed war, shaU take away power to try whether the prisoner 
be guilty or not of the charge contained in the indictment. 

All homicide is presumed to be malicious, and therefore mur- 
der, until the contrary appear upon evidence. " The matter of 
fact," says Foster, "viz., whether the facts alleged by way of 
justification, excuse, or alleviation, are true, is the proper and 
only province of the jiuy:" Foster, 255. Lawful defense by an 
individual, still recognized, it seems, by the law of nature un- 
der the name of private war, Grot., b. 1, c. 3, sec. 2, is one in- 
stance : Foster, 273. That he acted in right of a nation, or under 
public authority, is no more than matter of justification. It is 
like the case mentioned in Foster, 265 — the public execution of 
malefactors — and the jury must judge whether the authority 
may not have been exceeded. But more, when public or mixed 
VTar is alleged in mitigation, either allegation may be fictitious; 
and it should be put to the jury, on the proper evidence, 
whether it existed or not. The reason is plain, says Lord Hale; 
for the war may be begun by the foreign prince only, where it 
is public; and he supposes it still plainer where the war is be- 
tween the king and an invading alien, being the subject of a 
nation with whom the king is at peace: 1 Hal. P. C. 163, 164. 
The same writer puts the case of plunder or robbery by an 
enemy, tempus belli, which would not in general be burglary. 
Yet he admits it might be otherwise if the act were not done in 
the regular prosecution of the war: Id. 565. 

Suppose a prisoner of war to escape, and that on his way 

July, 1841.] People v. McLeod. 363 

home, and before he crossed the line, he should set fire to a 
farm-house in the night and kill the inmates: is there a doubt 
that he might properly be convicted either of arson or murder? 
When a grand jury have charged that a man has committed 
murder Tnthin this state, I can imagine no case, whether the 
charge relate to the time of public war or peace, in which he 
can claim exemption from trial. If he show that he was in 
truth acting as a soldier in time of public war, the juiy will 
acquit him. The judge will direct them to obey the law of 
nations, which is undoubtedly a part of the conmion law. So 
if the accused were acting in defense against an individual in- 
vader of his country. But above all things, it is important in 
the latter case for the jury to inquire whether his allegation of 
defense be not false or colorable. They can not allow as an 
act of defense the willful pursuing even such an enemy, though 
dictated by sovereign authority, into a countiy at peace with 
the sovereign of the accused; seeking out that enemy and taking 
bis life. Such a deed can be nothing but an act of vengeance. 
It can be nothing but a violation of territory, a violation of the 
municipal law, the faith of treaties, and the law of nations. 
The government of the accused may approve, diploma<7 may 
gloze, but a jury can only inquire whether he was a party to the 
deed, or to any act of illegal violence which he knew would 
probably endanger human life. If satisfied that he was not, as 
I sincerely hope they may be, upon the evidence in the case be- 
fore us, they will then have the pleasant duty to perform of 
pronouncing him not guilty. But whatever may be their con- 
clusion, we feel the utmost confidence that the prisoner, though 
a foreigner, will have no just cause to complain that he has suf- 
fered wrong at the hands of an American jury. 

At our hands, the prisoner has a right to require an answer 
upon the facts presented by his papers, whether in law he can 
properly be holden to a trial. We have had no choice but to 
examine and pronoimce upon the legal character of those facts, 
in order to satisfy ourselves of the bearing they might have on 
the novel and important question submitted. That examination 
has led to the conclusion that we have no power to discharge 
the prisoner. 

He must, therefore, be remanded^ to take his trial in the 
ordinary forms of law. 

Ordered accordingly. 

The principal case attracted great attention at and about the time the de« 
mkm of Judge Cowen was pronounced. The United States and Great Britain 

364 People v. McLeod. [New York, 

were really the two contesting parties. The latter insisted that the executive 
department of this government shoald interpose, and require the judiciary to 
release McLeod from custody. The former replied, that the executive did 
not possess the authority to interfere with the judicial department, and to 
determine in effect that a person held under indictment in due fonn, found 
by a legally constituted grand jury, was guilty of no offense punishable under 
our laws. U'pon this question we apprehend that there can be little doubt of 
the correctness of the position taken by the government of the United States. 
The guilt or innocence of an accused is essentially a judicial question. Thia 
ordinarily would be doubted by no one. In the principal case it was in- 
sisted, that even if McLeod had participated in the burning of the Caroline 
and the killing of Dnrfee, he did so acting under the command of his sov- 
ereign, or of her military officers, and was therefore not answerable to the 
judicial tribunals of the nation in which these acts were done. If this were 
true, it constituted nothing but matter of evidence showing that under the 
indictment against him he ought to be acquitted. In response to this evi- 
dence it was surely competent to the prosecution to offer other evidence, if 
such it could produce, to prove that the accused did not act under the direc* 
tions of any sovereign or other power, but committed the acts from mere 
wantonness and malice. In this view of the case, Qreat Britain never coin- 
cided, and the conviction of McLeod would doubtless have been followed by 
an immediate declaration of war against the United States. 

The great importance and notoriety of the case tempted Judge Cowen to 
the consideration of questions which no doubt were fully ai^ed before him, 
but which were not at all neoessary to be determined. Upon these questions 
he would, perhaps, have acted more wisely liad he expressed no opinion, as 
it was manifest that the prisoner must be held on the other grounds stated 
by him. 

The return of the officer showed an indictment in due form against the 
prisoner, accusing him of the crime of murder. The court was dearly right 
in deciding that this was ample authority for retaining the defendant in cus- 
tody, and that his guilt or innocence must, as in other cases, be submitted to 
a jury to be determined under the instructions of the trial court. The court, 
on habeas eorpuay will not try this question by summoning witnesses before 
it, nor will it look into the evidence taken before the grand jury: MaUer q/ 
Millery 1 Daly, 671; People v. Martin, 1 Park. C. C. 189; People v. liuUqft 
6 Id. 81; People v. Dixon, 3 Abb. Pr. 398; 4 Park. 0. 0. 654; Hurd on Habeas 
Corpus, 2d ed., p. 436. But it has not been unusual for courts, even after 
indictment, to hear affidavits and other evidence for the purpose of deter- 
mining whetlier the prisoner ought to be admitted to bail: Hurd on Hab. 
Corp. 435, 437; State v. HiU, 1 Const. Rep. 242; Street v. State^ 43 Miss. 1; 
Hx parte Wray, 30 Id. 681; Republic v. Wingale, 3 Brevard, 89; LumY. State, 
3 Port. Ind. 393; Lynde v. People, 38 IlL 497; State t. MeNdb, 20 N. H. 160; 
Commonwealth v. Rutherford, 5 Band. 646; Drury v. Stale, 25 Tex. 45; 
Ex ]HirU Bryant, 34 Ala. 270; People v. Hyler, 2 Park. C. 0. 570. But 
we think the better rule is, that after indictment of defendant, and 
perhaps after his being committed by an examining magistrate, the court 
will, on habeas corpus, regard him as guilty of the offense with which he is 
charged, and will not, even on an application to admit him to bail or to re- 
duce the amount of his bail, examine the evidence for the purpose of deter- 
mining whether ho is probably innocent, and ought therefore to be admitted 
to bail or have the amount of his bail reduced, unless perhaps in very ex- 
treme and peculiar circumstances: Ex parte Ryan, 44 Cal. 555; Ex parte 
Duncan, 53 Id. 410; TerrUory v. BenoU, 1 Mart. La. 142; StaU t. MUU^ 3 

July, 1841.] People v. McLeoo. 366 

Dev. 421; HigJU v United Staiea, 4 Morris, 4; 1 Burr^a Trial, 310; UnUed 
States V. Blue, 3 Wash. C. C. 224; People ▼. Tinder, 19 OaL 539; Ex parte 
Spradlend, 38 Mo. 547. 

The conclasions of Judge Gowen respecting the effect of the statute of New 
York regarding habeas corpus has met with the approval of the courts in sub- 
sequent cases. The statute does not confer ux>on the courts any new or 
additional power to inquire into the facts upon which the process under 
which the prisoner is held was founded: Bennae v. People, 4 lEkurb. 33. The 
oourt may, however, always inquire whether the court issuing its prooess or 
warrant had jurisdiction: People v. Bawson, 61 Barb. 625; Matter qf Divine, 
21 How. Pr. 82; 5 Park. C. 0. 65; also whether the process is legal and suffi- 
cient on its face, and whether any fact occurring since its issue has ter- 
minated its effect, as lapse of time, reversal of judgment, or granting of a 
pardon: People v. Cassels, 5 Hill, 168; Oreathouse*s case, 2 Abb. U. 8. 385; 
In re Edymoin, 8 How. Pr. 481. Mere formal defects in the process have 
been held insufficient to warrant the discharge of the prisoner: WUes v. 
Brown, 3 Barb. 89. Where the prisoner is shown to be held in pursuance of 
a commitment issued after an examination before a committing magistrate, 
or after an inquest before a coroner, the court may look into the depositions 
to see whether the facts there shown justified the holding of the prisoner to 
answer, or whether such facts will not warrant the admission of the prisoner 
to bail: People v. Van Home, 8 Barb. 163; People v. Thtmtphvns, 1 Park. G. 
C. 235; People v. Beigler, 3 Id. 322. 

Nolle Prosequi can not be entered on the motion of the court alone. Its 
entry requires the concurrence of the court and the prosecuting officer. It 
must be by leave of the former granted upon the application of the latter: 
Thomaeony, Demotte, 9 Abb. Pr. 243; 18 How. Pr. 529. 

Mr. Justice Cowen was, we think, clearly right in remanding McLeod for 
trial. It was not necessary, and scarcely proper for him, in habeas corpus, to 
undertake to determine the principles of law which ought to prevail at the 
trial His remarks concerning the extent to which McLeod should be pro- 
tected by the rules of international law, were mere dicta, and have, so far as 
we are aware, never been mentioned, except to be disapproved. 

The acts of which McLeod was accused were done under the direction and 
by the authority of an officer of Great Britain, and they were afterwards as- 
sumed, approve^ and ratified by the sovereign power of that nation. The 
opinion of Mr. Webster, the American secretary of state, was that after such 
approval the '* individuals concerned ought not, by the principles of public 
law, and the general usage of civilized states, to be holden personally respon- 
sible in the ordinary tribunals of law for their participation in it " In this 
view the most eminent American • jurists seem very generally to concur: 
Halleck's International Law, c. 14, sees. 21-23; 1 Op. Att'y-Gen. U. S. 81; 
Carrington v. Ins, Co., 8 Pet. 522; Tallmadge's review, 26 Wend. 674; 4 Law 
Reporter, 169, published at Boston, September, 1841; Bishop on Criminal 
Law, sec. 132. 

To prevent any farther conflict between the state and national authorities 
on this subject, a statute was passed in 1842 (5 U. S. St., p. 539) providing 
''that either of the justices of the supreme court of the United States, or 
judge of any district court of the United States, in which a prisoner is con- 
fined, * * shall have power to grant writs of habeas corpus in all cases of 
any prisoner or prisoners in jail or confinement, where he, she, or they, being 
subjects or citizens of a foreign state, and domiciled therein, shall be com- 
mitted or confined, or in custody, under or by any authority or law, or process 
founded thereon, of the United States or any one of them, for or on account 


366 Stafford v. Bacon. [New York, 

of any act done or omitted under any alleged right, title, authority, privilege, 
protection, or exemption, set up or claimed under the oommission, or order, 
or sanction, of any foreign state or sovereignty, the validity and effect whereof 
depend upon the law of nations, or under color thereof, '* and the act provides 
for the discharge of such prisoner from custody if "it appear that the pris- 
oner or prisoners is or are entitled to he discharged from such confinement^ 
commitment, custody, or arrest, for or by reason of such alleged right, title, 
authority, privilege, protection, or exemption, so set up and claimed, and the 
laws of nations applicable thereto." 

"Among European writers on public law, there seems to be a very general 
unanimity of opinion. Vattel says that 'on all occasions susceptible of 
doubt, the whole nation, the individual, and especially the military, are to 
submit their judgment to those who hold the reins of government.' The sov- 
ereign alone is to be held guilty for the acts of unlawful war; he alone is 
bound to repair the injuries, and not those who act under his authority. ' The 
subjects, and in particular the military, are innocent; they have acted only 
from a necessary obedience. ' Rutherf orth says that even in an imperfect sort 
of war, ' what the members do, who act under the particular direction and 
authority of their nation, is, by the law of nations, no personal crime in 
them; they can not, therefore, be punished consistently with this law, for any 
act in which it considers them only as the instruments and the nation as the 
agent.' Burlamaqui says that the mere presumption of the will of the sover- 
eign will not be sufficient to excuse a governor, or any other officer, for com- 
mitting acts of war. But if the sovereign ratify such acts, this approbation 
reflects back the authority of the sovereign upon the acts, and so obliges the 
whole commonwealth:" Halleck's Int. Law, c. 14, sec. 24. 

Mr. Halleck further says in sec. 31, c. 16: "It has already been shown, 
in speaking of seizures and reprisals, that the hostile acts of individuals, 
when ratified and assumed by their government, are to be regarded as the hoe- 
tile acts of the state. These acts may be of the character of reprisals or of 
mixed or imperfect war, or of a virtual declaration and commencement of 
solenm war. Such acts, however, must not exceed what the laws of war 
have established as belligerent rights of the subjects of hostile states. For 
anything done in violation of the laws of war, the individual is liable to pun- 
ishment. So, also, for any act within the rules of war, not authorized or as- 
sumed by his government, as the act of the state. The distinction between 
the two cases is manifest, and should never be lost sight of: the latter is 
punishable by the rules of civil law, while the former is an offense against the 
laws of nations, punishable only by the laws and usages of war. The taking 
of property, and of human life, in the one case would be robbery and mur- 
der, punishable under the local laws; while in the other case the same acts 
might be fully justifiable as the lawful exercise of belligerent rights under 
the laws of nations." 

Stapeobd v. Bacon. 

£1 Hill, 632.] 

AocoBB AND Satisfaction procured by the debtor's willfully misrepresent- 
ing or suppressing any material fact in the statement of his affiurs, are 
void; and even a sealed release based thereon will be set aside in equity. 

Original Debt is Discharged if the debtor effects a compromise, and gives 
the note of a third person in payment of the sum fixed by the com- 

July, 1841.] Stafford u Bacon. 367 

Moral Obuoatiok to Pat the Rssiduk of a Debt Discharged bt Ac 
CORD AND Satisfaction does not exist, and, therefore, & promise to pay 
such reddae can not be enforced by action; such obligation ezistB when 
a debt is discharged by the provision of some positive law, and not by 
th^ act of the parties. 

Fbomisb to Pay a Debt Discharged by Bankruptcy and the like, must 
be specially pleaded. 

Communication to a Stranger of an Intent to Pay a Debt which has 
been diBcharged, is not available to the creditor as a promise to pay him 
such debt. 

Assumpsit. Plea, non assumpsit^ and accord and satisfaction. 
It appeared that on May 26, 1829, a debt existed in favor of 
plaintiff of two thousand four hundred and seveniy-nine dollars 
and nineteen cents, for goods sold and delivered; that defend- 
ant represented himself as unable to pay over six shillings and 
eight pence to the pound; that a compromise was accordingly 
effected for that sum, and the note of H. Horton & Co. was 
given and received in payment. There was evidence tending to 
prove that the compromise was procured by misrepresentations 
made by defendant respecting his affairs; and that after it was 
made defendant had a conversation with Job Stafford, a son of 
plaintiff, who had been plaintiff's clerk in 1825; that defendant 
in such conversation told Job, that plaintiff had acted hand- 
somely, and that he would pay plaintiff the balance when he 
was able. Evidence of plaintiffs ability to pay at and before 
the commencement of this action was given. A motion for non- 
suit was made, on the grounds stated in the opinion; but it was 
denied. The juxy was instructed that if the compromise was 
obtained by fraud, or if ihe defendant promised to pay the 
balance when able, and his ability to pay had been shown, then 
the verdict ought to be for plaintiff. The jury found for 
plaintiff. Defendant moved for a new trial. 

A, Taber, for the motion. 

c7. Lansing and M, J. BeynoldSy contra. 

By Court, Cowbn, J. No dispute exists on the original ac- 
count. The question of fraud in procuring the compromise 
was properly submitted to the jury; and were this the only 
point, their finding would not be disturbed. The duly of a 
debtor who comes for a discharge on part payment, is clear. If 
he willfully misrepresent or suppress any material fact in the 
statement of hia affairs, the accord and satisfaction are void; 
and even a sealed release would be set aside in equity. The 
cases on this point are cited in Carter v. ConneU, 1 Whart. 392, 

368 Stafford v. Bacon. [New York, 

and the rule well expressed bj Seigeanty J., at p. 397. Bat, 
fraud out of the way, there ia no doubt the original debt was 
discharged by the compromise and payment of six shillings and 
eight pence on the pound. The note of H. Horton & Co. was 
received expressly in satisfaction. The answer set up by the 
plaintiff was, that the defendant had subsequently promised to 
pay when he was able. This is resisted: 1. On the ground that 
the special promise was neither declared on nor replied; and 2. 
That it was void for want of consideration. 

The only ground on which the plaintiff could make the 
promise available, was the moral obligation to pay a debt clearly 
extinguished; and the point of pleading was entirely settled by 
this court in Depuy y. Sioart, 3 Wend. 135 [20 Am. Dec. 673]. 
There the defendant had been discharged under the two-third 
insolTent act. The plaintiff sued on a negotiable note given 
previously to the discharge, alleging also a new and absolute 
promise to the payee, who sold the note to the plaintiff. This 
court held that it was discharged; that the subsequent promise 
made a new contract on which the payee must declare specially 
or reply the new promise. The same thing was repeated in 
Moore v. Viele, 4 Wend. 420, and WaU v. Morris, 6 Id. 894. A 
fortiori, where the promise is conditional. Perm v. Bennett, 4 
Camp. 205, is also in point. The plaintiff declared for goods 
sold, etc. ; defense, a certificate under the bankrupt act; answer, 
a new promise. Lord EUenborough told the jiuy expressly, 
that if they thought the neW promise was conditional, the plaint- 
iff could not recover, because he had not declared specially. 
Wait V. Morris was the case of a conditional promise, after an 
insolvent discharge. The plaintiff replied a subsequent ratifi- 
cation of the promises declared on, but omitted to state the 
condition; nor indeed, perhaps, was even an absolute promise 
replied in due form. This court held a replication at least 
essential; and gr&nted a new trial with leave to amend. I 
need not stop to show that an accord and satisfaction is a still 
stronger case for the defendant. It is a conventional dischai^e, 
the same as a release or actual payment of the whole. In the 
case at bar the point was distinctly made, that evidence of the 
subsequent promise was inadmissible under the pleadings. And 
yet the charge was, that a promise to pay on becoming able, 
and actual ability, would entitle the plaintiff to a verdict. 
Nearly the same point had been previously made on the motion 
to nonsuit. 

The abstract question, whether moral obligation be predicable 

July, 1841.] Stafford v. Bacon. 369 

of a debt discharged by accord and eatisfactioii, does not seezu 
to have been raised very distinctly at the trial. The point on 
ihe motion for a nonsuit was: '' There is no evidence for which 
the defendant ought to be put upon his defense on the ground 
of a subsequent promise.'' And again, after the dose of the 
oTidence — " the conyersation sworn to by Job Stafford, was not 
in law a valid or binding contract or promise." Job Stafford ap- 
l)ears to be the only witness who spoke to the promise. A mo- 
tion was also made in the course of the trial to strike out that 
part of his testimony. The particular ground, viz., that the 
debt had been discharged, was not mentioned; and the alleged 
promise is now assailed for three reasons besides that, viz., 
1. As vaiying the terms of the written compromise; 2. As be- 
ing nudum pactum; 3. As not made either to the plaintiff or hia 
agent. Strictly, all these grounds should have been mentioned 
at the trial. They would then have been distinctly seen, per- 
haps allowed, and the plaintiff's counsel or the judge hmug 
made aware of the defects, farther evidence might have been 
given on that or on other branches of the case. All the four 
points now made are, however, included in the general objec- 
tion; and, as I am of opinion that there must be a new trial on 
another ground, and the points were discussed on the argument, 
it may be useful to examine and dispose of them. 

The first objection is obviously without any foundation in 
fact. The promise, so far from varying the terms of the written 
compromise, assumed its existence, and stipulated to pay the 
balance. The second — ^that the promise was nudum pactum — ^is 
nearly identical with the objection that no moral obligation re- 
mained. That it was made neither to the plaintiff nor his agent 
is, I think, a fatal objection. A mere casual expression of in- 
tention to pay, made to a stranger after a man has been dis- 
charged, as an insolvent for instance, would clearly be unavail- 
able in favor of the creditor: Moore v. Viele, 4 Wend. 420, 422. 
In this case, it is said, if made to a third person it may be good. 
There is no doubt of that; for it may be intended that it should 
be reported to the creditor; and he might, in such case, adopt 
the act of the stranger in receiving it, thus making him his agent. 
It is insisted that Job Stafford was clerk to the plaintiff, and in 
that sense his agent. But I can not find proof that he was so 
when the promise was made, though there is evidence that he 
had been before, in 1825. Several years, however, had elapsed 
between that time and the period of the promise. His being a 
8on of the plaintiff was, it may be, a circumstance with the jury 

▲m. Dbo. Vol.. XXXVn— 24 

370 Stafford v. Bacon. [New York, 

that the defendant intended his promise for the plaintiff, who» 
therefore, had a right to adopt it. The promise was for his 
benefit; and he bringing his action npon it may, perhaps, bj 
this act, have connected himself with it. Should the objection 
be made on the new trial, there is by no means an impossibility 
that it may be answered. But the law has stood ever since 
Weeks y. Ikfiald^ Noy, 11, that the communication of an intent 
to pay, made to a mere stranger, and not connected with the 
plaintiff by any matter before or after, is void: Vide Cole y. Got- 
Hngham, 8 Oar. & P. 75. 

Whether after the debt was discharged by an accord and sat- 
is&ction, there remained any moral obh'gation to pay the bal- 
ance, will perhaps form the decisive question, at least in one 
branch of the cause. I think there did not. The strongest case 
for the plaintiff is that of an insolvent discharge under the two- 
third act, on the petition of the plaintiff. There it is held, 
enough remains to sustain a new promise: McNair v. Oilbert, 3 
Wend. 844. But this is a discharge by provision of positive 
law. Chitty says that " in all the cases in which a moral obliga- 
tion has been deemed a sufficient consideration for the defend- 
ant's express promise, etc., nothing but the provision of some 
positive law had interposed to preclude a legal remedy, etc., 
until the defendant expressly promised:" Chit, on Con. 12, 13, 
Phil. ed. of 1834. It is not necessary to go over the cases. 
Many are collected in a note to Edwards v. Davis, 16 Johns. 283, 
284, in support of the proposition thus limited; and it had been 
before the publication of 16 Johns, adopted in substance by 
Sx>enc6r, J., in Smith v. Ware, 13 Johns. 257, 259. The pro- 
priety, indeed the necessity of such a limitation, is shown by 
Daggett, J., in Cook v. Bradley, 7 Conn. 67 [18 Am. Dec. 79J; 
and he also contends, on a very full consideration of the cases 
down to 1828, that we are bound to it by legal authority: Vide 
also WUs V. Wyman, 3 Pick. 207, and Eastwood v. Kenyon, 8 
Perry & Dav. 276. 

In the case at bar, the plaintiff had accepted the commercial 
paper of a third person, expressly in satisfaction; and there 
seems also to have been a general compromise with creditors, in 
which he participated. He himself had virtually promised the 
defendant and the other creditors to consider the debt discharged. 
The moral obligation lies much on his side. I speak not of the 
alleged fraud in obtaining the receipt. If that exist, no doubt 
the defendant is liable; and had that alone been put to the jury, 
I could have felt no difficulty. There were circumstances of 

July, 1841.] Stafford v. Bacon. 371 

suspicion which called for explanation. But looking at the 
f onn in which the case was put to the jury, they may have basecl 
themselves entirely on the promise and supposed moral obliga- 
tion of the defendant. The case is the same in legal effect as it 
the debt had been released under seal, or paid in full. 

When a debtor is voluntarily and fairly discharged by hia 
creditors, it must be left to his option whether he will pay. 
Being an honest man and becoming able, payment would be a 
thiug of course; but that is a matter of mere imperfect obliga-^ 
tion which the law can not act upon without going wide of its 
office, and, indeed, dismissing the rule which calls for a valuable 
consideration in any case. In one sense, a man is always under 
a moral obligation to fulfill a fair promise whether made on a 
consideration or not; for instance, a promise of charily to a 
stranger. It would follow from the proposition in question as 
it is sometimes put, that, in the case supposed, a second prom« 
ise might be sued upon, and the charity enforced by execution. 

I am aware that the conclusion to which I have arrived is op- 
posed by the decision in Willing v. Peters, 12 Serg. & R. 177, 
decided in 1824. That case was the same as the one before us. 
The court held the promise binding, and likened it to a promise 
by an insolvent discharged under the two-third act. That case» 
however, was questioned in the very court which decided it, and 
I think overturned, by the late case of Snevily v. Beed, 9 Watts, 
396, 401, A. D. 1840. The plaintiff had discharged the body of 
the defendant from custody under a ca, sa., and he after- 
wards promised to pay the debt. Held, that no moral obliga- 
tion remained, sufficient to sustain the promise. 

My opinion is, that a new trial should be granted, the costs to 
abide the event. 

New trial ordered. 

A Moral Oblioation will bb a Sufticibnt Considbration for a prom- 
ue if it Ib the result of a precedent legal obligation which has ceased to be 
enforceable because of the interposition of some rule of law. Thus, if pay- 
ments have been made on a debt, on which judgment has nevertheless after- 
wards been obtained in full, because of the default of defendant, a promise 
on the part of the judgment creditor to apply the payments on tho original 
debt, in discharge of the judgment, will be supported: Camion v. FoxoUr^ 
5 HlU, 309; but if the obligation is discharged, as by an accord and satisfac* 
tion, there is no moral obligation remaining sufficient to constitute a consid* 
eration: PUUU v. Wcdralh, H. & D. CI. Further as to what will be a Buffi« 
dent consideration, see Van Der Veer v. WiHght, 6 Barb. 551, citing th« 
principal case. See, also. Cook v. BntdUy, 18 Am. Deo. 79. 

Ak Accord and Satisfaction obtained through fraudulent misrepresenta- 
tion of the debtor in regard to the state of his affiurs is void: DoUen v. Arnold^ 

372 Waddell V, Cook. [New York, 

10 How. Pr. 531, citing the principal case. To the same point aee JteynokU 
T. French, 90 Am. Dec. 456. 

A Pbomiss to Pat a Debt I^schaboed in Bankbuftct most, in New 
York, be declared upon, as it is the substantive cause of action, and the old 
debt merely the consideration: Jhisenberry v. Hoyt, 14 Abb. N. S. 134; 45 
How. 148; 36 N. Y. Supr. Ct. 97. A distinction has been taken in that state 
between this case and that of a promise to pay a debt barred by the statute d 
limitations. The distinction is based upon the promise that notwithstanding 
the bar of the last named statute the original legal obligation exists, and 
that the reason it can not be enforced is because of the presumption of pay- 
ment raised by the statute from the lapse of time. It follows of course from 
this premise, that the new promise or acknowledgment, which is bat evi- 
denoe to avoid the presumption and the defense arising from it, need not 
be pleaded: Watbina v. Steoens, 4 Barb. 174; Iteid v. McNaughton, 15 Id. 
183; Philipe v. Peters, 21 Id. 358. The objections to the distinction are very 

A Pbomibb Made to a Stbakoeb can not be avaUed of: Ormneli ▼. Cook^ t 
Hm, 488; Wahemm v. Sherman, 9 N. Y. 93. 

Waddell v. Cook. 

[9 HZLL. 47.] 

Qfhoeb Skllino the Entire Pkopebty okdeb Ezegutiov against one oo- 
tenant thereof, abuses his legal authority and becomes liable as a trea- 
passer ab imUoy although in making the levy he was authoriced to take 
exclusive possession of the property. 

Tbbspass against a marshal for seizing and selling the goods 
of Cook under a writ against Bowne, Cook's co-tenant. The 
marshal, ins|;ead of selling Bowne's interest, sold the goods as 
if they had been owned by Bowne in severalty. Evidence was 
offered tending to prove Cook's assent to the sale. Defendant 
asked for an instruc