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(flnrupll Slatu ^rlyonl Blibrarg 



Cornell University Library 
KF 705.S64 

A treatise on the law of personal proper 



3 1924 018 802 466 





Cornell University 
Library 



The original of this book is in 
the Cornell University Library. 

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the United States on the use of the text. 



http://www.archive.org/details/cu31924018802466 



A TREATISE 



OK THE 



LAW OF PERSONAL PROPERTY 



BY 



HOEAOE E. SMITH, LL. D., 

Late Dean of the Albany Law School. 



CHICAGO: 

T. H. FLOOD & COMPANY, 

Law Book Publishebs. 

1893. 



i56'^^^^ 



Entered according to Act of Congrean, In the year 1893, 

By HORACE E. SMITH, 

111 the office of the Librarian of Congress at Washington. 



SlBBBOTTPED ANP PbINIBD 
BY 

DARIUS D. THORP, 
Lansikg, Mjoh. 



PBEFACE. 



In tHe early history of our law under the English 
feudal system, personal property was regarded as of 
small consequence in comparison with real estate. The 
latter was the measure of wealth, and the gauge of social 
and political rank. It -is quite diiferent at present withi 
the relative importance of the two kinds of property, 
especially in the United States. The great change in 
our country is the result of various causes ; among which 
may be mentioned as prominent, the form and genius of 
our government, the character of our institutions, and 
the allodial system of land ownership. The last half 
century has witnessed an increase in new and varied 
industries, an enlargement and extension of commerce 
and manufactures, little less than marvelous, and marked 
changes in sociological conditions, all contributing to the 
volume and great importance of the law of personal 
property. The cultivation of this department of juris- 
prudence has not been equal to its demands, as measured 
by the importance of the subject, and its varied applica- 
tion to human relations and affairs. When this work 
was undertaken, the only American publication treating 
exclusively upon the subject of Personal Property, known 
to the author, was the learned and elaborate work of 
Mr. Schouler, in two volumes ; while on most branches 



IV PEEFACE. 

of the law there were numerous text-books at command 
of the profession. A practice of many years in the pro- 
fession, supplemented by ten years' experience with 
students at the Albany Law School, impressed the writer 
with the conviction that a treatise on this subject, differ- 
ing somewhat in character and aim from any then before 
the public, might be a useful addition to our legal litera- 
ture. Under this conviction, and with the view of meet- 
ing what seemed to be a want, the following pages were 
prepared. The plan and aim of the work is, to bring 
the leading and essential principles of the law of personal 
property within a narrow compass, and in such a manner 
as to serve the following purposes : First, to furnish the 
student with the means of acquiring an adequate and 
discriminating knowledge of the subject, without un- 
necessary and confusing discussion ; secondly, the prac- 
titioner with a ready and reliable solution of questions 
arising in the exigencies of his professional business, 
when time is wanting for extended research ; and, third, 
to meet the wants of those outside the legal profession, 
who may desire to obtain a knowledge of the general 
principles of the subject, as a qualification for business, 
or an essential to a liberal education, but are unable to 
devote much time to the study. In carrying out his 
plan, the writer has endeavored to state the rule or prin- 
ciple of law on points in question, as settled by the 
weight of authority, in a manner as clear and succinct as 
practicable, without entering at large upon philosophical 
discussion, or marshaling in the text an array of conflict- 
ing cases. Yet, sufficient references to decided cases. 



PEEFAOB. - V 

and standard text-books, have been furnished to facihtate 
an exhaustive examination of questions when necessary 
or desirable. Special care has been taken, however, to 
formulate definitions, and state principles, with such 
perspicuity and reliable accuracy as to render extended 
research unnecessary. 

The author might have constructed a more elaborate 
and imposing work with much less cost of time, thought, 
and labor ; but the product, he believes, would have been 
less intrinsically valuable for the purpose intended. If 
he has succeeded to a reasonable extent in reaHzing his 
purpose, the reader will find in one small volume aU the 
leading and essential principles of this department of law, 
so systematized and presented as to be easily available 
for study or use. The author has not the vanity to think 
that his work is free from imperfections ; but he hopes 
that it may prove useful to the classes for which it is 
designed, and trusts that it wiU be received with con- 
Biderate kindness by a liberal profession. 



TABLE OF CONTENTS. 



CHAPTEE I. 

ENTRODUCTORT ; DEFINITION AND USES OF THE WORD 
PROPERTY : GENERAL CLASSIFICATIONS. 

PAGE. 

Section 1. Definition of the term, " property " 1 

2. Uses of the term 2 

3. Real, and Personal, property . 2,3 

4. Absolute, and qualified, property 3 

6. Limitations of absolute ownership 3-5 

CHAPTEE II. 

CHARACTERISTICS OP PERSONAL PROPERTY. 

Section 6. Mobility 6 

7. Change from personal to real, and vice versa 6, 7 

8. 'Duration of the time of enjoyment 7, 8 

CHAPTEE III. 

IRREGULAR SPECIES OF PROPERTY. 
I. Fixtures. 

Section 9. What are fixtures 9,10 

10. Rules for guidance 10, 11 

11. Between what parties 12 

13. Time of removal. 12, 13 

II. Emblements. 

13. What are emblements 13,14 

14. What products the tenant may remove 14 

15. Who, and when, entitled to emblements. 15-17 

16. Incidents 17 



Vm TABLE OF CONTENTS. 

III. Heir-looms. page. 

Section 17. Character, and law of, defined - 18, 19 

rV. Manure. 

18. When real, and when personal, property 20,21 

V. Church Furniture. 

19. Law of this species of property 31, 23 

VI. Mortuary Property. 

20. Kinds, legal rules, and burial rights 22-24 

CHAPTEE lY. 

NOMENCLATURE, AND SUBORDINATE DIVISIONS OF PER- 
SONAL PROPERTY. 

Section 21. Chattels, real, and personal 25, 26 

22. CT OSes in possession ; c?iofies in action 26,27 

23. Estate, real, and personal _ 28,29 

24. Goods, wares, merchandise, effects, credits 29, 30 

25. Personal property in expectancy 31 

CHAPTEE V. 

PERSONAL PROPERTY, HOW HELD, OR OWNED. 

Section 26. Joint owners 32-34 

27. Ownership in common 85-37 

28. Part-owners of ships 1 37,38 

29. Partners 38-41 

30. Corporations 42-46 

31. Joint stock companies.. 46-49 

CHAPTEE YI. 

MODES OF ACQUIRING TITLE TO PERSONAL PROPERTY. 

Section 32. Modes of acquiring title classified. 

First. By original acquisition, embracing: 
1. Occupancy, including: 



TABLE OF CONTENTS. 13 

(a) Goods taken by capture in war; 

(b) Goods casually lost by the owner, and 
unreclaimed, or designedly abandoned; 

(c) Waifs; and 

(d) Reclamation of animals /erce natures. 
2. Accession, including: 

(a) Fruits of the earth produced naturally 
or by human industry; 

(b) The increase of animals; 

(c) Materials of one person united to the 
materials of another; and 

(d) Confusion of goods. 

Second. Transfer by act of law, embracing: 

1. Forfeiture; 

2. Succession; 

3. Judgment; 

4. Intestacy; 

5. Insolvency; and 
6 Marriage. 

Third. Transfer by act of the parties, including: 
1. Gifts inter vivos; 
, 2. Gifts causa mortis; 

3. Title by will pr testament; 

4. Sales; 

5 Indorsements; 

6. Assignments; and 

7. Bailments. 

CHAPTER VII. 
TITLE BY ORIGINAL ACQUISITION. 

PAGE. 

Bection 33. Occupancy, the first known method of acquiring ^ 

title 52-55 

34. Goods taken by capture in war 55-58 

35. Goods lost or abandoned 58-61 

36. Waifs 61,63 

37. Reclamation of animals /ercE Tiafwrce 60-64 

88. Title by accession 65 

39. Fruits of the earth. 66 

40. Increase of aniqaals. 66,67 



X TABLE OF CONTENTS. 

PAGE. 

Section 41. Materials of one person united to the materials 

of another.. 67-70 

43. Products of intellectual labor 70, 71 

43. Patents for inventions and designs 71-83 

44. Essentials of a patentable invention, etc 73-77 

45. Mode of obtaining, and conditions, of a valid 

patent 77-80 

46. Other points in the law of patents 80-83 

47. Copyright 83-84 

48. How to secure the statutory right. 84-87 

49. Essentials to copyright 87-91 

50. Remedies for infringement 91 

51. Letters from one correspondent to another 93-94 

63. Lectures 94-96 

53. Trade-marks 1 96-104 

54. A common law right 97, £8 

55. What may constitute a trade-mark 98 

56. By whom acquired 99,100 

67. Freedom from fraud 100 

58. How acquired 101, 103 

59. Infringement ...:.. 103,103 

60. Remedies for infringement 103, 104 

CHAPTEK YIII. 

THE SECOND GENERAL MODE OF ACQUIRING TITLE TO 
PERSONAL PROPERTY— TRANSFER BY ACT OF LAW. 

Section 61. Special modes included in this division 105 

I, Forfeiture. 

63. Definition, and examples L. 105 

63. England, and United States 106 

64. When title passes 107 

65. Forfeiture odious 107 

II. Succession, 

66. Definition, and kinds 107, 108 

67. Common law succession 108, 109 



TABLE OF CONTENTS. XI 

III. Judgment. PAGE. - 

BECT10N68. Definition IIO 

69. Judgments which transfer title 110-112 

rv. Intestacy, 

70. Definition, history, and incidents 113-11& 

V. Insolvency. 

71. Meaning of the terms "insolvency" and "bank- 

ruptcy' - 117 

72. Distinction between bankrupt, and insolvent, 

laws 117, 118 

73. General purposes, and effect, of insolvent laws. 118, 119 

74. United States bankrupt, and insolvent, laws 119-121 

VI. Marriage. 

75. Transfer of chattels by marriage -. 121, 122 

76. As to the wife's choses in action 1S2, 123 

77. No unjust discrimination against the wife 123, 124 

CHAPTEK IX. 

THE THIRD GENERAL MODE OF ACQUIRING TITLE TO 

PERSONAL PROPERTY— TRANSFER BY 

ACT OF THE PARTIES. 

I. Gifts inter vivos. 

Section 78. Definition, and subjects of these gifts 125, 126 

79. Delivery essential -. 126, 127 

80. VaUdityof gifts - 127, 128 

81. Gifts on condition, with reservation, or a trust.. 128 

82. Gifts between parent and child 128. 129 

83. Gifts between husband and wife 129-133 

84. Revocation of gifts 129-133 

II. Cfifts causa mortis. 

85. Definition 130, 131 

86. Essentials to this gift 131, 132 

87. Title of donee, delivery, and effect 132, 133 



Xll TABLE OF CONTENTS. 

PAGE. 

Section 88. Eevooation .- 133 

89. Not favored in law 134 

III. Title by Will or Testament. 

90. "Why assigned to this division 134-136 

91. Last will and testament defined 136 

93. Testamentary capacity — 186-139 

93. Written, and unwritten, wills 139 

94. Revocation. '.- 140,141 

95. "When the will takes effect 141, 143 

IV. Sales. 

96. Sale defined 143,143 

97. Elements of a valid sale _ 144 

98. Parties competent to contract 144 

99. Mutual assent 144-147 

100. The subject of the sale 147, 148 

101. A price in money, paid or promised 148. 149 

102. The Statute of Frauds 149-164 

103. Contract in respect of passing title 164-169 

104. Mistake ; failure, and illegality, of consideration. 169-173 

105. Fraudulent sales 172-179 

106. Illegal contracts of sale 179, 180 

107. Conditions, and conditional sales .180, 181 

108. "Warranty 182-185 

109. Delivery in performance of the contract 185-189 

110. The vendor's lien 189 

111. Stoppage in transitu..- 190-193 

113. Payment and tender 193,194 

113. Remedies of the vendor 300-304 

114. Remedies of the vendee 204r-208 

V. Indorsement. 

115. Title by, and kinds 308, 209 

VI. Assignment. 

116. Acquisition of title by „ 210 

"VII. Bailment. 

117. Special property in bailee 210, 311 



TABLE OF CONTENTS, XIU 

CHAPTEE X. 

LIMITATIONS. 

PAGE. 

Section 118. History and purpose 212-314 

119. "When the limitation begins 214, 315 

130. New promise 215-330 

CHAPTEE XI. 

INSURANCE. 

Section 131. Definition, and terms employed 230, 231 

132. Nature, and form, of the contract 221-334 

123. Classes of policies 224^326 

124. Consummation of the contract 226-328 

135. Subject-matter of the contract 338, 339 

136. Insurable interest 239-331 

137. Warranties, and representations 231-334 

138. Special provisions of the contract 334^337 

129. Mutual insurance 337-339 

CHAPTEE XII. 

LEGACIES, AND DISTEIBUTIVE SHAEES. 
I. Legacies. 

Section 130. Definition, and principal classes 240-343 

131. Minor divisions, rules and incidents 242-246 

133. Abatement, ademption, payment and satisfac- 

tion : 246-251 

II. Distributive Shares. 
133. Defined and explained 251, 253 

CHAPTEE XIII. 

STOCK, AND STOCKHOLDEES. 

Section 134. Stock, and shares of stock, defined 353-355 

135. Methods of acquiring title to stock 355-357 

136. Liability of stockholders 257-268 

137. The assets on dissolution 268-271 



XIV TABLE OF CONTENTS. 

• 

CHAPTEE XIV. 

MISCELLANEOUS SPECIES OF PERSONAL PROPERTY NOT 
HEREINBEFORE SPECIFICALLY TREATED. 

I. Money. page. 

Section 138. What it is 273- 

139. Constitutional money. 272-275 

140. Subject tolevy under execution 275,376 

II. Debts. 

141. Definition, and classification 376-284 

143. Debt, how discharged 384-391 

III. Mortgages. 

143. Definition, and essential elements 291, 392 

144. Formal requisites 393-394 

145. Subjects of a chattel mortgage 394-396 

146. Possession of the mortgaged property. 396-398 

147. Mortgage distinguished from pledge 398, 399 

148 Equity relief of mortgagor 399-300 

149. Conditional sales with the right to repurchase, 

distinguished 300, 301 

150. Foreclosure of the equity of redemption 301-303 

rV. Bottomry, and respondentia, bonds. 

151. Defined and explained 303, 304 

153. Hypothecation by the master, or the owner 304^306 

153. Miscellaneous rules 306-808- 

V Rent. 

154. Definition and properties 308, 309 

155. The kinds of rent. 309, 310 

156. Remedy by distress for rent in arrear 310-316 

157. Remedies by action at law, and a suit in equity 316-320 

158. Obligation to pay rent; eviction a defense 820-322 

159. Apportionment of rent 323, 823 

(JHAPTEE XV 

DEVOLUTION OF PERSONAL PROPERTY ON DEATH OF 

OWNER. 
Section 160. General rules a^i, 335. 



TABLE OF CASES. 



PAGE. 

Abbottv. American Hard Rubber Co., 33 Barb., 578 270 

4Blatchf.,489 270 

Abbott V. Hamden Mut. Fire Ins. Co. , 30 Me. , 414 230 

Abbott V. Howard Hayes (Irish), 381... 233 

Abbott V. Shepard... i 48 N. H., 14 146 

Abernethy V. Ch. of the Puritans 3Daly, 1 21 

Acebal v. Levy lOBing.,376 156, 162 

Acraman V. Morris 8 C. B., 449 164 

Adams v. Broughton Strange, 1078... Ill 

Adams v. Linsdell ^ 1 B. & Aid., 681 146 

Adams V. McMillan 7 Post., 73 168 

Adams v. Mirick 5 Serg. & R., 32 201 

Adams V. Story 1 Paine C. C, 79 118 

Adams Exp. Co. v. Egbert. ..36 Pa. St., 360 206 

Adlerv. Milwaukee, etc., Co 13 Wis., 57 261 

Agarv. Lisle Hob., 187 59 

Agnew V. Johnson 17 Pa. St.', 373 36 

Alabama & Fla R. R. Co. v. Rowley..9Fla., 508 259 

Alcockv. Hopkins ..6 Cash., 484 195 

Alden v. Dewey 1 Story, 336 79 

Aldridgev. Johnson 7 E. & B., 885 168 

26 L. J. B., 296 168 

Alexander v. Gardner 1 Bing., N. C, 671.. 169 

Alexander v. Whipple -45 N. H., 502 218 

Allan V, Carpenter 15 Mich., 88 16 

Allan v.Eldred...- 50 Wis.. 136 195 

AUard v. Greasert. 61 N. Y., 1 155 

Allen V. Bennett - 3 Gaunt., 169 162 

AUenv. Blunt 2 Woodb. & M., 131. 74 

Allen V. Cowan 23N. Y,,503 126 

Allen V. Franklin Ins. Co - 9 How. Pr. Rep. , 501 230 



XVI TABLE OF OASES. 

PAGB. 

Allen V. Hunter 6 McLean, 303 75 

Allen V. Jarvis 20 Conn., 38 151 

Allen V. Montgomery R. E. Co 11 Ala., 437, 450 261, 365 

AUen V. Webster 15 "Wend., 284 317 

AUerv.Aller 11 Vroom., 446 287 

Allertonv. Lacey 10 Bosw., 362 137 

Allingham v. O'Mahoney 1 Pugsl. ,336 186 

AUis V. Read 45 N. Y, 142, 149.... 145 

Alsop Y. Com. Ins. Co 1 Sumner, 451 234 

Am. Home Ins. Co. v. Patterson 28 Ind., 17 237 

Am. Solid Leather Button Co. v. 

Anthony Crowell & Co 3 New Eng. Rep., 630 97, 99 

Amesbury v. Bowditch Mut. Fire Ins. 

Co 6 Gray, 596 235 

Amoskeag Manuf . Co. v. Spear. .3 Sandf. Super. Ct,. 599. 99 

Amoskeag Manuf. Co. v. Trainer 101 U. S. , 51 99 

Anderson V. Baker 1 Ga., 595 126 

Anderson V. Baumgartner 37 Mo., 80 800 

Anderson v. Fitzgerald 24 Eng. L. & Eq. , 1_. 232 

Anderson V. Fitzgerald 4 H. of L. Cas,, 484.. 232 

Anderson V. Greene .7 J. J. Marsh., 448.. 137 

Anderson V. Harold 10 Ohio, 399 162 

Anderson V. Parsons .Greenl.,486 246 

Anderson, Receiver, v. Philadelphia 

Warehouse Co... Ill U. S., 479 267 

Anderson V. Schulze 64 Wis., 460 34 

Appeal of Rowley 9 Atl. Rep., 329 257 

Archer v. Hudson 7 Beav., 551 139 

Archer V. Zeb 5 Hill, 305... 153, 159 

Arey V. Stephenson. 11 Ired. L., 86. 218 

Argus Co. V. Mayor, etc., of Albany ..55 N. Y., 495 163 

Armory V. Delamirie Str. Rep., 556 59 

Armory V. Flyn 10 Johns., 102 64 

Armstead V. Ward 2 Pat. &H.,504 194 

Arnold V. Delano 4 Cush., 33, 38 189, 191 

Arnold V. Delano 7 Cush., 33 201 

Arnold V. Suffolk Bank .27 Barb., 424 ,. 205 

Ash V. Ash 9 Ohio St., 383 141 

Ashburner V. McGuire.. JBr. C. C, 108 248 

Ashcroft V. Butterworth ..136 Mass., 511 145 



TABLE OF CASES. XVU 

PAGE. 

AspinwaU V. Sacohi 57N. Y.,831 267 

Aspinwall v. The King's Proctor Curt. Boo., 246 115 

Astley V. Emery....... .4M. &. G., 262 156 

Atherfon V. Tilton.'. .44 N. H., 452 39 

Atkins V. Colby 20 N. H., 154 181 

Atkins V. Saxton 77 N. Y., 195 41 

Atkinson V. Alien 12Vt.,619 2 1 

Atkinson V. BeU 8 B. & C, 277 168 

Atlantic MiUing Co. v. Robinson 20 Fed. Eep.,-217...9T, 100, 102 

Attenberghv. People .Car. &P., 212 314 

Attorney General V. Jblinstone ..Amb., 577 243 

Atwater v. Hough 39 Conn., 509, 516... 150, 153 

Atwoodv. Clark 2 Me., 249 188 

Atwood V. Lucas :. 53 Me., 508 201 

Atwood V. Small 6 Clark & F., 443.... 175 

Autman's Appeal 93 Pa. St., 505 267 

Ayerv. Bartlett ..9 Pick.. 156 166, 167 

Ayersv. Bane .39 Iowa, 518 199 

B. 

Babb V. Read 5 Rawle, 157 48 

Babcock V. BonneU 80 N Y., 244, 249, 250, 251 191 

Babcockv. Booth.. 3 Hill, 181 116 

Babcock V. Gill.. 10 Johns., 387 70 

Babcockv. Hawkins 28 Vt., 561. 285 

Babcockv. Wyman .19 How., 339 294 

Bacon V. Robertson 18 How. (U. S.), 480. 269 

Bacon V. Eccles .43 Wis., 327 156 

Backhouse v. Harrison 5 B. & Ad., 1098 60 

Badrickv. Stevens ..2 Br. C. C, 431 248 

Bagwell V. Dry..^ ...1 P. Wms., 700 246 

Bagwell V. Dry 2 P. Wms., 400 246 

Bailey V. Clark ..91 Wall., 284 253 

Bailey V. Day 26 Me., 88 286 

Bailey V. Hollister 26 N. Y., 112 367 

Bailey v. Smith .43 N. H., 141 _ 168 

Bailey V. Wright ...SMcCord, 484 312 

Baird'sCase - L. E. 5 Ch.. 725 267 

Baker V.Holt .56 Wis., 100 145 

B 



XVIU TABLE OF CASES. 

PAGE. 

Baker V. Kenworthy 41 N. Y., 215 276 

Baker v. Lever 67 N. Y., 304...: 289 

Baker V. Wheeler 8 Wend., 505, 508-.. 70 

Baley V. Homan 3 Bing. (N. C), 631- 285 

Baltimore, etc., Turnpike Co. v. 

Barnes 6 Harris & J. (Md.),57 256 

Baltimore Fire ins. Co. v. Lovey 20 Md. , 20 223 

Balto, etc., Co. v. Sewell 36 Md., 338 _ 205 

Balme V. Warnbaugh 16 Minn., 116 200 

Baldy V. Parker SB. & C, 37 155 

Baldwin V. Williams 3 Met., 367 153 

Ball V. Chadwick 46 lU., 31 210 

Ball v., Gilbert 13 Met., 395, 399,... 325 

Ballard v. Noaks 3 Pike, 45 285 

Ballentine v. Robinson 46 Pa. St., 177 303 

Banet V. Alton, etc., R. R. Co 13 111., 504 358 

Bank V. Bangs 102 Mass., 291,195... 168 

Bank of Attica V, Mgfs. &Trs. Bank-.20 N. Y., 501... 257 

Bank of Columbia v. Patterson 7 Cranch, 399 . 44 

Bank of Commonwealth v. Van Vleck.49 Barb. ,503 375 

Bank of Ohio VaUey v. Lockwood 13 W. Va., 426 195 

Bank of Rochester V. Jones 4N. Y.,497 166,39* 

Bank of St. Marys v. St. John 35 Ala. ,566 354 

Bank of United States v. Dormally...8 Pet., 361, 371 284 

Bank of U. S. v. Dandridge 12 Wheat., 68 44 

Bankof Uticav. Ballou .49 N. Y., 155 318 

Banksv. Thornton 11 Hare, 176 343 

Banorgee V. Hovey ..5 Mass., 11 284 

Bantonv Shorey 77M:e.,48 153 

Baptist Church v. Brooklyn Ins. Co. .19 N. Y., 305 224 

Baptist Ch.v. Bigelow 16 Wend., 38 21 

Barfield v. Cole .4 Sneed, 465 393 

Barfield v. Nichrfson 3 Sim. & St., 1 89^ 

Barkerv. Dinsmore ..73 Pa. St., 437 60 

Barnesv. Underwood '. 47 N. Y., 351 123 

Barsow V. Paxton 5 Johns., 258 399 

Bartels V. Harris .4 Me., 146 393 

Bartelv. Lope 6 0reg.,331 294 

Barton's Case .4DeGex& J., 46... 360' 

Barnard V. Bartholomew 23 Pick., 391... 317 



TABLE OF OASES. XIX 

PAGE. 

Barnard V. Graves 16 Pick., 41 196 

Barnard V. KeUogg 10 Wall., 383 184 

Barnett V. Terry „43 Ga., 283 201 

Bartlettv. Blanchard 13 Gray, 439.... 206 

Bartlett V. Crittenden 5 McLean, 33 95 

Bartlett v. Crittenden 4 McLean, 300 95 

Bartlett V. Vinor : Garth., 251 179 

Bartholomew V. Sawyer 1 Fish., 516 76 

Barr v. Ayers.. ..3 Watts & S., 299 186 

Barron V. Baltimore 7 Pet., 343 4 

Barrett V. Crane 16 Vt.,346 279 

Barrett V. Goddard. 3 Mason, 107- 159 

Barrett V. HaU 1 Mason, 447 81 

Barrettv. Pritchard, 3Pick.,513 167 

Barrow V. Coles - 3 Camp., 93 165 

Barry v. Merchants' Ex. Co 1 Sandf . Ch. , 280, 305 44, 253 

Barwi'ck V. Foster ...:...Cro. Jac, 227 323 

Bassett V. Bassett ION H., 64 j 294 

Bassettv. Camp 54 Vt., 333 158 

Bates V. Coster .-lHun.,400 151 

Bates V. NeUis 5 Hill, 651 812 

Bates V. New York Ins. Co. 3 Johns. Cas. , 238 _ . . 255 

Bates v.Soarrell ^ 10 Mass., 332 21 

Bautleton V. Smith 3 Binn., 146 813 

Bayard v. Farmers, etc , Bank 52 Pa. St. , 233 46 

Baxter V. Penniman 8 Mass., 134 218 

Beach V. Owen. 5 T. R., 409 159 

BeattieV. Abercrombie 18 Ala., 9 113 

Bearv. Hamish. 8 Brewst., 116 305 

Bearce v. Banker 115 Mass., 139 60 

Bearingerv. O'Hare 26 Iowa, 259 213 

Bean v. Smallwood. .3 Story, 408 74 

Beauman t. James 3 Ch., 508 163 

Beaumontv. Beevegerie 5 C. B., 301 157 

Beaumont V. Crane... .14 Mass., 400 35 

Beckwithv. Talbot 95 p. S., 389 163 

Bedford V. Hunt 1 Mason, 301, 303... 75 

Beecher V. Buckingham 18 Conn., 110 113 

Beecher v. Dillsbury, etc., R. R. Co... 76 Pa. St., 306 356 

Beecher V. MayaU 10 Gray, 376 289 



XX TABLE OF OASES. 

PAGE. 

Beemanv. Lawton 37 Me., 543 _ 293 

Behner V. Dale. 35 Ind., 433 204 

Behn V. Bumess 3 Best & Smith, 751. 184 

Bell V. Daniels 1 Fish,, 372 77 

Bellv. Lamprey- 57 N. H., 168.. 214 

Bellv. Locke 8 Paige, 275 104 

Bellv. Morrison 1 Peters, 362 216 

Bellv. Moss 5 Wheat., 189 191 

BeU V. OfiEutt. -10 Bush, 632, 639.... 226, 203 

Bell V. Potter 6 HiU, 497 314 

Bellv. Reynolds 78 Ala., 511 206 

Bellv. Shilley 33 Barb., 610... 239 

BeUv. Shrieve _14ni., 463.. 297 

Belmont v. Erie R'way Co l53 Barb., 635 44 

Bellows V. Wells 36 Vt., 599 165 

Belt V. Marriott , .9 Gill., 331 157 

Bement v. Smith 15 Wend., 493 .. 203 

Benjamin V. Stremple '. 13111., 466.. 211 . 

Bennett V. Hull 10 Johns., 364 1.50 

Bennettv. Nye ..4 Greene (la.), 410 151 

Bennett V. Smith 15 Wend., 493 ... 168 

Benson V. Benson IP. Wms., 130, 131_ 288 

Bentallv. Burn 3B. &C.,433 158 

Bent V. Hart 10 Mo. App., 148, 146 253 

Benton V. Havckes .4B. & Aid., 540, 550 7I 

Berkly V. Hardy.... 6 Barn. & 0,, 355 318 

Bernecker V. Miller 40 Mo., 473 36 

Berry V. Berry 31 Iowa, 415 ' 128 

Berry V. Usher 11 Ves., 87 251 

Betterton v. Roope 3 Lee (Tenn.), 230 . .. 195 

Betts et al. v. Lee 5 Johns., 348 70 

Betts V.Lee. .5 Johns., 338 69 

Beverage v. New York El. R. R. Co...ll3 N. Y., 1, 27 255 

Biddleson v. Whytel 3 Burrows, 1545-1 548 110 

Bigelow V. Baldwin 1 Gray, 345. 285 

Bill V. Bament .9 M. & W., 36 161 

Billings V. Robinson... 94 N. Y.,415... 265 

Bimelar v. Dawson 5 111., 536 281 

Bird V. Munroe 1...66 Me., 347 161 

Bishop V. Bishop UN. Y., 123 13 



TABLE OF CASES. XXI 

PAGE. 

Bishop V. Small 63 Me., 13 174 

Black V. Delaware, etc.. Canal Co.--.23 N. J. Eq., 130, 415 371 

34N. J. Eq., 455 ... 371 

Black V. Thornton 31 Ga., 641 137 

Black V. Zacharie J 3 How., 483.: 194 

Blaine v. Ship Charles Carter 4 Cranch, 338 306 

4Cranoh, 328 307 

Blair V. Claxton 18 N. Y., 529 321 

Blaisdell V. Souther 6 Gray, 153 143 

Blake v. Portsmouth, etc. , E. E. Co. ..39 N. H. , 435 269 

, BJakemore V. Tabor 32Ind.,446 303 

Blanch V. Bradford. 38 Pa. St., 344 315 

Blanchard V. Noyes 3 N. H., 518 386 

Blanchard V. EusseU 18 Mass., 1 118 

Blanche V. Eogers 36 N. J. Eq., 563 ... 13 

Blaney V. Hoke ....^ -14 Ohio St., 393 226 

Blenv. Bear Eiver, etc , Co 20 Cal., 602... 289 

Blenkinsopv. Clayton 7 Taunt., 597 159 

Blessing v. House 3 Gill. & J., 390 36 

BUght V. Ashley 1 Pet. C.WD., 15 226 

Bliss V. Sohaub 48 Barb., 339 211 

Blodgettv. Blodgett 48 Vt., 32 300 

Bloomerv. Bloomer 2 Bradf . Surr., 339.. 140 

Bloss V. Kittridge 5 Vt., 28 182 

Blount V. Burrow 1 Ves. Jun., 546 132 

Boalev. Mayor 19 C. B. N. S., 76.... 384 

Boardman v. Brittania Co 35 Conn., 403 97 

Boardman V. Cutler 138 Mass., 388 152 

Boardmanv. Lake Shore, etc., E'y Co.. 84 N. Y., 157 255 

Boardman v. Meriden Brittannia Co.-35 Conn., 403 -. 99 

Boardman V. Spooner 13 AUen, 353... 158 

Bodger V. Arch 38 Eng. L. &, Eq., 464 318 

Boehem V. Combe 3M. &S., 172 236 

Boepplerv. Menown 7Mo. App.,447 263 

Bogan V. Finley ...19 La. An., 94 126 

Bogert V. Indianapolis 13 Ind., 134. 33 

Bolton V. Eiddle 35 Mich., 13 187 

Boucicaultv. Wood 3Biss.,34. 84 

Bonner V. Campbell .48 Pa. St., 386 40 

Boody V.Davis 30 N. H., 140 394 



XXll TABLE OF OASES. 

PAGE. 

Boon V. Moss 70N. Y.,465 166 

Borradaile V. Hunter 5 M. &G., 639 233 

Boston, etc., R. B. Co. v. N. Y. & N. 

E. R. R. Co 13 R. I., 360 270 

Boston Music Hall v. Cory 139 Mass., 435 357 

Bostwickv. Leach 3 Day, 476 154 

Boughner v. Meyer.. 5 Colo,, 71 335 

Bowenv. Buck 13 Pa. St., 146 166 

Bowenv. Burk .13 Pa. St., 146 301 

Bowenv. Darby 14 Fla.. 303 375 

Bower V.Stoddard ...10 Met., 375.... 38 

Bowery Fire Ins. Co. v. N. Y. Ins. Co.l7 Wend., 359 322 

Bowmanv. Conn 8 Ind., 58... 155 

Boycev. Washburn 4 Hun, 793 153 

Boyd V.Brown 6 Barr., 310 175 

Boyd V. Gunnison .'.UW. Va., 1 187 

BoydeUv. Drummond... ...11 East., 142 162 

Boylenv. Meeker ....38N. J.L., 274 140 

Boyntonv. Babbitt 2 Vent., 68 323 

Brackettv. Bullard 12Met.,308 297 

Brackett v. Hoitt ...30 N. H., 357 115 

Bradbury v. Beeton 39 Law J. Rep. Ch. (N. S.), 57 101 

Braddock v. Phil., etc., R. R. Co 45 N. J. L., 863 358 

Bradshaw V. Heath ...:13 Wend., 407 381 

Bradford V. Fox ...38 N. Y., 389 196 

Bradley V. Norton 33 Conn., 157 99 

Bradley V. Michael 1 Ind., 551 301 

Bragleman V. Dane 69N. Y., 69_ 300 

Brainerd V. Brainerd 15 Conn., 575.. j 294 

Brand V. Fetch 3 Keyes, 409 157 

Brandon v. Huntsville Bank 1 Stewart (Ala.), 320. 59 

Brant V. Bowlby 3 B. & Adol., 933... 166 

Brantley V. Thomas 22 Tex,, 270 184 

Braunstein v. Accidental Death Ass. 

Co 1 Best & Smith, 782. 337 

Bray V.Bates 9 Met, 235 302 

Brennanv. Whittaker 15 Ohio St., 446 39) 

Brewerv. Smith 3 Greenl., 44 164 

Brewer V. Smith 3 Greenl., 44 168 

Brewerv. Browne 68 Ala., 310 40 



TABLE OF OASES. XXIU 

PAGE. 

Brewsterv. Taylor 63 N. Y., 587 156 

Brickerv. Hughes 4 Ind., 146 154 

Bridge V. Ford 4 Mass., 641 383 

Bridges V. Smyth .3 Moore & P., 740... 818 

Bridges v. Hawkesworth 8 Eng. L. & Eq. , 434. 58 

Bridges v. Hawkesworth 7 Eng. L. & Eq. , 424. 60 

Bridgfordv. Crocker 60 N. Y., 637 203 

Briggs V. Oliver 68N. Y., 339_ 303 

Briggsv. Hosford 1 32 Pick. , 288, 289 342. 

Brigham V. Mead 10 Allen, 345 265, 266 

Bringhoffv. Munzenmaier 20 Iowa, 513 296 

Brightwell V. Mallory ...10 Yerg., 196 46,357 

Brink V. Gould 7 Lans., 435 126 

Brinley V. Kupper 6 Pick., 179 35 

Brittain V. McKay 1 Ired.,365 154 

Broadhead V. McKay 46 Ind., 595 297,298 

Brogden v. Metrop. Railway Co 2 App.'Cas., 666 145 

Bronson V. Rhodes .7 Wall., 229.^ 275 

B rough ton V. Silloyifay, 114 Mass., 71 195 

Brown V. Brown 18 Conn., 410 134 

Brown V. Graham 24111., 628 36 

Brown V. Greer 13 Ga., 285 802 

Brown V. HaU 5 Lans., 177 155 

Brower V. Harbeck ..9 N. Y., 589 117 

Brown v. Higgs 4 Ves., 708, n. b..2.. 246 

Brownv. Railroad Co... ...'.44N. Y., 79, 86 327 

Brown v. Roger Williams Ins. Co. . . . 7 R. I. , 301 235 

5 R. I., 304 235 

Brownv. Sanborn ..21 Minn., 403 _ 151, 155 

Brown V. Sax 7 Cow., 95 70 

Brownv. Stanclift SON. Y.,637 153 

Brownv. State Bank...' 10 Ark., 134 218 

Brownv. Sullivan 62 Ind., 281 59 

Brownv. U. S -.8 Cranch, 110 58 

Brown v. Wootton ...Cro. Jac, 73 m 

Brown v. Whipple 58 N. H., 309. 161 

Brownlee V. Bolton. 44Mich., 318 _ 202 

Brownson v. Gleason 7 Barb., 472 186 

Brooklyn Bank v- De Grau w 23 Wend., 343 285 

Bruce et ux. v. Savannah Mut. Ins. 

Co - >- 34Ga.,97 235 



XXIV TABLE OP OASES, 

TAGE. 

Bruen V. Marquand '. 17 Johns., 58 288 

Bi-unshiUv. Muir 15 Up. Can.Q.B., 213 187 

Brunswick V. Dunning 7 Mass., 445, 447 43 

Bryan V. Blythe 4 Blackf . (Ind.), 249. 379 

Bryant V. Booze 55 Ga., 438 146 

Bryant V. Crosby 40 Me., 9 183 

Bryant V. Proctor 14 B. Mon., 457 285 

Bryant V. Witcher 52 N. H., 158, 161... 60 

Buchan v. Sumner, 2 Barb. Ch., 165. .3 Barb. Ch., 165 40 

Buck V. Hermance 1 Blatchf., 398 81 

Buck V. Rockwell 27 Vt, 157 153 

Buckv. SpofEord 31 Me, 34 35 

Buckland v. Eice. 40 Ohio St., 526 101 

Buckle V. Eckhart 3 N. Y., 132 39 

Buckley V. Morgan 46 Conn., 393 177 

Bulkleyv. Barker.. 6 Ex., 164..-. 38 

Bulkly V. Orms _Brayt. (Vt.), 134 .... 107 

Bucklin v. Thompson 1 J. J. Marsh. (Ky.), 323 299 

Buckoutv. Swift 27 Cal., 488 16 

Buckingham V. Smith 23 Conn., 453 217 

Buckup V. Valentine 19 Wend., 554 3l3 

Budd V. MvQtnomah St. Ry. Co.. 15 Pac. Rep., 659.... 358, 260 

Buellv. Chapin 99 Mass., 596 197 

Buford V. Keokuk, etc. , Packet Co. . .3 Mo. App. ,159 ■ 271 

Buffalo City Cemetery v. Buffalo 46 N. Y., 503 23 

Buffalo & A. R. R. Co. v. Cary 36 N. Y., 75 363 

Buffalo, etc. , R. R. Co. v. Dudley 14 N. Y. , 336 256, 257 

Buffarv. Bradford 3 Atk., 330 246 

BuUv. Griswold, 19 111., 631 154 

Bumgardnerv. Taylor 38 Ala., 687... 199 

Bungev. Koop , 5 Rob., 1 386 

Bunacleugh V. Polman 3Daly,-336 293 

Bunn V. Markham 7 Taunt., 224, 231... 130,133 

Burd V. Burd .4 Pa. St., 183 24* 

Burgen V. Udal 31 Barb., 9 139 

Burgess V. Heape 1 Hill (S. C), Ch., 397 123 

Burkholder v. Plank 19 Smith (Pa. ), 335 . . 387 

Burne V. Richardson 4 Taunt., 730 313 

Burnes V. Simpson'..'. 9 Kan., 658 110 

Burnside V. Weightman 9 Watts, 46 16 



TABLE OF CASES. XXV 

PAGE. 

Burton V. Tannehill BBlaokf,, 470 397 

BurraU v. Bushwick R. E. Co .75 N. Y., 211 353, 254, 268 

Burrell V. N. T., etc., Co 14 Mich., 34 205 

Burrillv. NahantBank... 3 Met., 163 44 

Burrows V. Smith ION. Y., 550 257 

Burtenshaw V. Gilbert Cowp., 51 140 

Buschman v. Cold 53 Md., 203, 207 174 

Bush V. Holmes .- 58 Me., 417 204 

Bush V. "Wilkins 4 John. Oh., 506.... 141 

Busk V. Davis 3 M. &. S., 397 168 

Busterv. Newkirk.. .20 Johns., 75 65 

Butler's Case 3 Inst., 107 59 

Butler V. Hildreth 5 Met., 49 177 

Butler V. Howe 18 Me., 397 215 

Butler V. Northumberland 50 N. H., 33 207 

Buxton V. Edwards 134 Mass., 567 218 

Byersv. Byers 6 Dana (Ky.), 313 136 

Byron V. Johnson 8 Tenn. R.. 410 318 

Buzzard V. Capel 8 Barn. & C, 141.... 309 



Cable V. McCune 26 Miss., 371 277 

CadweUv. Blake 6 Gray, 403 181 

Cahoonv. Ring 1 ClifE., 593 75 

CaldweU V. Fifield 24 N. J. L., 17 

CaldweU V. Pickens: 39Ala., 514 128 

Calkins V. Clement .54 Vt., 635 297 

Calkins V. Falk 38 How. Pr., 63 163 

CaUagan V. Myers 89 III., 570 165 

Calvin V. Williams 3 H. & J., 38 153 

CambeU v. N. E. Mut. Life Ins. Co. ..98 Mass., 381 233 

Cambridge V. Roas 8Ves., 12,15 244 

Cameron V. Wells 30 Vt., 633 188 

Campv. Hamlin 55 Ga., 259 _ 201 

Campbell V. Brown 20Ga..415 288 

Campbell V. N. E. Mut. Life Ins. Co.. 98 Mass., 381 231 

Campbell v. Phelps 1 Pick., 63 Ill 

Campbell V. Strong Hemp., 365 383 

Campbell v. Thompkins 5 Stew. Ch., 170 287 



XXVI TABLE OF CASES. 

PAGE. 

Camp's Appeal - 36 Conn., 88 126 

Canal Co. v. Eay 101 U. S.,523, 527... 284, 288 

Candee v. Deer^ .-54 111., 437.... 101 

Canfield V. Bostwick... 31 Conn., 550 _ 143 

Cannanv. Bryce 3 B. & Aid., 179, 183, 184. 179 

Cannon V. Folsom 3 Iowa, 101 204, 305 

Cannon v. Lusk 3 Lans., 311 37 

Canrolev. Cone 4 Barb., 320 276 

Carey V. Faden 1 5 Ves.,24 , 89 

Carletonv. Lovejoy 54 Me., 445 123 

Carlilev. Burley ! 3 Greenl., 350 Ill 

Carlislev. Cahawba& Marion R.E. Co.4 Ala. (N. S.), 70 359 

Carlisle V. Kinney ...66 Barb., 363 301 

Carman V. Smick 15 N. J. L., 253 150 

Carpenter v. Atherton ..25 Cal., 564 275 

Carpenter V. Beer Comb., 346 180 

Carpenterv. Dodge .30 Vt., 595 136 

Carpenter V. Galloway 73Ind.,418 155 

Carpenterv. Northfield Bank 39Vt.,46 274 

Carpenter v. Prov. Wash. Ins. Co 16 Pet., 495...' 321, 239 

Caifpenterv. Snelling 97 Mass., 453'. 293 

Carpenterv. Stevens 12 Wend., 589 147 

Carrington v. Merchants' Ins. Co 8. Pet., 495 58 

Carson V. Arctic Mining Co 5 Mich., 288 260 

Carson v. Marine Ins. Co 3 Wash. C. O. , 468 . . 324 

Carter V. Burr 39 Barb., 59 331 

Carter V. Boehm 3 Burr, 1095 329 

Carter v. Humbolt Fire Ins. Co 13 Iowa, 387 335 

Carter V. Miller 4 Mass., 559 36 

Carver V. Bowles 3 Russ. &My., 301.. 248 

Carver V. Oakley 4 Jones (N. C), Eq., 85 346 

Casonv. Cheeley 6Ga.,554 150 

Castleman V. Griffin 13 Wis., 535 176 

Caswell V.Keith .13 Gray, 351 294 

Cathcart v. Fire Department, etc 26 N. Y., 529 106 

Caughran V. Giknan .73 Iowa, 570 381 

Caulkins v. Hellman 47N. Y., 449 156 

Cave V. Hastings 7 Q. B. D., 135...... 163 

Ceasv. Bramley 18 Hun, 187, 188 393 

Central Branch B'nk v. Fritz 20 Kan., 430 154 



TABLE OF CASES. XXVll 

PAGE. 

Central Railway v. Hisch. Law Rep.. .2 H. L., 99, 120 174 

Chadwick v^ Butler 28 Mich., 349. 204 

Chafife V. Ludeling 1 27 La. An., 607 263 

Chaflfeev. Rutland R. R. Co .55 Vt., 110 254 

Chairesv. Brady 19Fla.,133 294 

Chambers v. Garland 3 Green, G. (la.), 323 217 

Champion V. Plummer 3 B. &P., 252 162 

Chancellor v. Wiggins .4 B. & Mon., 201 183 

Chandler V. Brown 77111., 333 263 

Chandlery. Edson 9 Johns., 362. 70 

Chandler V. Puller 10 Tex., 2 191 

Chaplin V. Rogers. 1 East, 195 159 

Chapinv. School District 85N. H.,450 181 

Chapman V. Ingi-am 30 Wis., 290 202 

Charles River Bridge v. Warren Bridge.7 Pick. , 344, 44.") 4 

Charters. Stevens... 8 Denio, 33 _ 298, 300 

Chartran V. Schmidt JRice, 229 291 

Chase V. EastTenn., etc., R. R. Co...5Lea, 415 260 

Chase V. Lord 1 77N.Y., 1 263 

Chase V. Walters 28 Iowa, 460 210 

Chaworth v. Beech 4 Ves., 555 242 

Cheetham V. Ward IB. &P., 630 251 

Chelsey V. Welch 37M:e.,106_ 15 

Chelsynv. Dalby.. 4 Young & C, 238... 217 

Cheney's Case 3 Leon, 260 817 

Chesley V. Joselyn .7 Gray, 489.... 147 

Chesley V. St. Clair... 1 N. H., 189 211 

Chester Glass Co v. Dewey 16 Mass , 94 ... 257 

Chintz V. Surey : 6 Esp , 267 156 

Chipman V. Marting 13Johns.,340 312 

Chouteau Spring Co. V. Harris J30Mo.,382. _ 257,265 

Christenson v. Eno.'.... 106 N. Y., 97, 100... 261 

Christman V. Floyd 9 Wend., 340. _ 313 

Christmas v. Whingates .3 Swab. & Tr., 81 140 

Christopher v. Austin 11 N. Y., 216. ...^._ 321 

Church V. Feterow 2 Pen. & Watts, 301. 197 

Church V. Sherman 36 Wis., 404 44 

Claflinv. Carpenter .4 Met., 580 _ 153 

Clappv. Hale 1 113 Mass., 368 199 

Clappv. Peck 55 la., 370 191 



XXVUl TABLE OF CASES. 

PAGE. 

Clappv. Sohmer 55 la., 273 191 

Clapp V. Stoughton 10 Biok., 463 115 

Clark V. Bogardus 13 Wend., 67 _ 250 

Clark V. Bryan 16 Md., 171 279 

Clarkv. Bush 3 Cow., 151. 288 

Clark V. Davies _1 Redf. Surr. Rep., 249. 139 

Clark V. Depew 25 Penn. St., 509 128, 130 

Clarkv. Draper 19 N. H., 419. _ 201 

Clark V. Butcher 9 Cow., 674 217 

Clark V. Jetton 5 Sneed, 229 249 

Clarkv. Nichols _107 Mass., 547 152 

Clarkv. Finney 7 Cow., 687 205 

Clark V. Protection Ins. Co ..1 Story, 109. 107 

Clarkv. Tucker. 2Sandf.,157 '... 157 

Clark V. Whittaker ...18 Conn., 543 297 

Clarke v.-Thomas 34 Ohio St., 46 263 

Clement, etc., Co. v. Meserole 107 Mass., 362 203 

Cloud V. Clinkinbeard 8 B. Mon., 397, 399.. 251 

Coats V. Holbrook 2 Sandf . Ch., 586.^... 99 

Cockv. Honychurch... ..TRaym., 203 285 

2Kele, 690 285 

Cookerell V. Cincinnati Ins. Co 16 Ohio,148 231 

^ Coddington V. Johnstone 1 Beav., 520 16 

Coev. Cassidy 72N. Y., 123, 137... 294^ 

CofEeen V. Brunton A McLean, 516 99 

Coffman V. Hampton 2 Watts & S., 399... 202 

Cofleldv. Clark 2 Cal., 102.. 205 

Cohen V. Dupont 1 Sandf., 260 323 

Colbum V. Simms ..2 Hare, 543_ 84 

Cole V. Patterson 25 Wend., 456 323 

Cole V. Ryan 52 Barb ,168. 257 

Coleman V. Coleman 2 Ves. Jr., 640; 160.. 241, 242 

Colemanv. Darling 66 Wis., 155 41 

Coles v. Iowa State Mut. Ins. Co 18 Iowa, 426. 238 

Colgan V. Danheiser .35 FedRep.,150 98 

Colladay V. Baird .4Phila., 139..... 103 

CoUender V. Griffith 11 Blatchf., 211 89 

Collins V. Tillon 26 Conn., 368 294 

Coltv. Mass. Arms Co 1 Fish., 108 7-1 

Columbian Ins. Co. v. Lawrence 2 Pet., 725 230 



TABLE OF CASES. XXIX 

PAGE 

Comanv. Lakey SON. Y., 345 _ 296 

Combs V. Bateman ..10 Barb., 573 159 

Comfort V. Kiersted 26Barb.,473 ' 164 

CoEomercial Bank of Albany v, 

Hughes 17 Wend., 94 276 

■Commercial, etc., Ins. Co. v. Union 

Mut. Ins. Co 19 How., 818 234,337 

Commercial Union Ins. Co. v. Hock- 
ing 115 Pa. St., 407 237 

Commonwealth v. Clark 14 Gray, 267 143 

Commonwealth v. Kneeland ^ 20 Pick., 306, 330 91 

Commonwealth v. Loveridge 11 Mass. , 337 383 

CoEomonwealth Y. Otis 16Mass., 198 383 

Concklin V. Havens 13 Johns., 314 67 

Condermanv. Smith 41Barb.,404. 148 

Congregational Society V. Fleming.. .11 Iowa, 533 23 

Congress & Empire Spring Co. v. High 

Rock Congress Spring Co .45 N, T., 391 100 

Conner V. Carpenter ..38Vt.,237 393, 298 

Conover V. Earl 36 Iowa, 167 37 

Conover V. HoflEman 15 Abb. Pr. R., 100.. 140 

Consinery V. Pearsall. 8Jones&Sp., 114... 302 

Converse V. Converse. 21 Vt., 168 138 

Converse V. Ferre 11 Mass., 335 36 

Conway V. Reyburn 33 Ark., 390 218 

Coochv. Goodman 3 Q. B.,590 387 

Cook V. Com'rs of Hamilton Co 6 McLean, 613. 205 

Cook V. JKllard ..65 N. Y., 353 151 

Cookv. Oxley 3 T. R., 653 145 

Cook V. Patterson ...35 Ala., 103 59 

Cook V.Phillips..-. 56 N. Y., 310 180 

Coolidgev. Brigham 1 Met., 550 389 

Coombs V. Bristol & Exeter R. R. Co.. 37 L. J. Ex., 401 157 

3H. &N., 510 157 

Coombs V. Gorden 59 Me., Ill 60 

Cooper V. Brock 41 Mich., 488 393 

Cooper V. Burr .45 Barb., 9 126 

Cooperv. Davis 15 Conn., 556, 563... 16, 17 

Cooper V. Presb. Ch.... 83 Barb., 232 ' 33 

Cooper V. Sunderland. 3 Iowa, 114 803 



XXX TABLE OF CASE8. 

PAGE. 

Cooper V. Shepherd 3 C. B., 266 Ill, 391 

Cooper V. Smith. 15 East, 103 162 

Cooper V. Woolfit 2 Hurl. & N., 123... 16 

Coppin V. Coppin 2 P. "Wms., 391, 306. 250 

Coranthv. Forsyth 68 Ga., 560 287 

Corbynv. French 4Ves,418 246 

Corcoran v. Webster 50 Wis., 125 295 

Corn V. Mut. Assurance Co 6 Crabbe, 192 288 

Cornell V.Hall 22 Mich., 377 801 

Cornell V. Lamb .2 Cow., 653 312 

Corwin V.Daly .7Bosw., 323 98 

Cotter V. Layer .2 P. Wms., 633, 624. 141 

Cotton V. Gillard 44 L. J. (N. S.)Ch., 90 100 

Coty V. Barnes .20Vt.,78. 297 

Couohman V. Wright 8 Neb., 1 293 

Count Phalen's Case L. R. 9Eq., 107 261 

Cowin V.Toole .31 Iowa, 513 281 

Cowels V. Ricketts .llowa, 582... 210 

Cowley V. Smith 46 N. J. L., 380 175 

Cowling V. Cowling 26 Beav., 449 244 

Coxv. Bradfish 35 Me., 302 48 

Coxv. Bailey 6 M. & G., 193 15P 

Coxv. Griggs _2 Fish , 174 75,76 

Coxv. Harris. 17 Md., 23, 31 24ft 

Craddock v. Riddlesbarger 1.2 Dana (K), 206 17 

Craft V. Thompson 51 N. H., 536 282 

Craig V. Eittredge .46 N. H., 57.. 131 

Craig V. Tappin _2 Sandf. Ch., 78, 90_ 298 

Crandall V. Lincoln .53 Conn., 73 367 

Crane V.Pratt 12 Gray, 348 197 

Crane v. Price Webs. Pat. Cas., 409 73 

Crapsterv. Griffith 3 Bland., 525...: 37 

Crawford v. Gaulden 33 Ga., 173... 214 

Crawford V. Roher 59 Md., 599. 25a 

Crawford V. The William Penn 3 Wash., 484. 805 

Crawford V. Roher 59 Md., 590.. 361 

Cray v. Hartford Ins. Co 1 Blatohf., 280 286- 

Crease v. Babcock 51 Mass., 525 267 

Creed V. Creed 11 Clark &F., 508... 242 

Cressy V. Sabre 17 Hun, 120 14T 



TABLE OF CASES. XXXI 

PAGE. 

CresweU v. Lawton .7 Gill & J. (Md.), 227 136 

Creuse V. Defiganier lOBosw., 122 217 

Crevilingv. Wood 95 Pa. St., 152, 158.. 142 

Croft V. Bennett 2 N. T., 258 165 

Croft V. Day 7 Beav., 84 102 

Crommelinv. Thiess 31 Ala., 412 321 

Crommelin v. N. Y. & Harlem R. B. 

Co 4Keyes, 90 201 

Cromptonv. Pratt 105 Mass., 255 295 

Crook V. Cowen 64 N. C, 743 145 

Crosby Y. Loop .13 lU., 625 323 

Crosby V. Wadsworth 6 East, 602 153 

Crosby V. Watkins 12 Cal., 85 204 

Cross V. Gardner Carth., 90 182 

Cross V. O'Donnell .44 N. Y., 661 156 

Crossley v. Conn. Fire Ins. Co 27 Fed. Rep., 30 237 

Crouch V. Smith 1 Md. Ch. Rep., 401.. 7 

Cucvilley V. Hernandez 103 U. S., 105 218 

Cullenv. Bimm 37 Ohio St., 236 184 

Cumberland Valley Mut. Prot. Co. v. 

ScheU ..29 Pa. St., 31 238 

Cummings V. Arnold 3 Met., 486 288 

Curel T. Wunder 5 Ohio St., 92 297 

Currie v. Anderson ..2 E. & E., 592 157 

29L. J. Q. B.,87.... 157 

Currie v. Mut. Ass. Soc 4 H. & M. (Va.), 315. 238 

Curry V. Woodward 44 Ala., 305 255 

53 Ala., 371... 262,269 

Curtis V. Groat. 6 Johns., 168, 169 ... Ill, 70 

Cusac V. Robinson ...30 L. J. Q. B., 261... 156 

IB. S., 299 156 

Cushman v. Holyoke ..34 Me., 289 165 

Cushman V. Libbey 15 Gray, 358 l... 195 

Cushman v. North Western Ins. Co. . .34 Me. , 487 224 

Cuthbert v. Cuthbert 3 Yeates, 486 242 

Cuthbert V. Kuhn 3Whart., 366 322 

Cuyler V. Cuyler 2 Johns., 186 288 



XXXll TABLE OF CASES. 

PAGE. 

D. 

Dabovich V. Emeric -13 Cal., 171 205 

D'Aquilav. Lambert 3 Eden, 77 190 

s. c. Amb., 399 190 

Dainv. Cowing .23 Me., 347.. 36 

Dallardv. Botts 6 Allen (N. B.),443.. 157 

Dalton V. Midland Counties R'y Co.. .13 C. B., 474 255 

Dambmannv. Sohulting .75 N. Y., 55 173 

Damev. Dame 38N. H.,429 154 

Danav. Fielder 13 N. Y., 40 304 

Danav. Mtmro 38Barb.,528 339 

Danbury, etc., E. E. Co. v. Wilson.. .33 Conn., 435.. 360 

Danforth V. Culver .11 Johns., 146 217 

Danforth V, Walker. 37 Vt., 339. 203 

Daniel" V. Owen 70 Ala., 397. 41 

Daniel V.Wood 1 Pick., 103 21 

Daniels v. Bailey 43 Wis., 566 153 

Daniels v. Hudson Eiver Fire Ins. Co..l3 Cush., 416 231, 233 

Daniels v. Pond .._1 Pick., 371 30 

Darling V. Hubbell 9 Conn., 350 283 

Darrahv. Baird 101 Pa. St., 265 13 

Dartmouth Coll. v. Woodward..... 4 Wheat., 518, 633, 686 42, 43, 109 

Dauchy V. Brown .34 Vt.,197 263 

Davenport v. Peoria, etc., Ins. Co 17 Iowa, 276 234, 227 

Davidson V. Eankin 34 Cal, 53 363 

Daviesv. McLean 31 W. E., 364_ 187 

38 L. T. (N. S.), 113.. 187 

Davis V. Fyde 4 Nev. &M., 463 313 

Davis V. Haycock L. E. 4 Exch., 371... 266 

Davis V. Hill 3 N. H., 383 165 

Davis V. HpweU 83 N. J. Eq., 73 41 

Davis V. Hubbard 38 Ala., 185, 189 300 

Davis V. Lottich 46N. Y.,393 34, 36 

Davis V. Palmer 3 Brock., 298, 810... 73 

Davis V.Payne 4 Rand., 834 815 

Davis V. Steiner 14 Pa. St., 275 317 

Dawson V.King 30 Md., 443 _ 317 

Day V. Bassett 103 Mass., 445 395 

Day V. Pool .52 N. Y., 416 207 

Day V. Postal Tel. Co 7Atl. Rep., 608 268 



TABLE OF OASES. XXXIU 

PAGE. 

Day V. "Watson 8 Mich., 535 881 

Dayton V. Borst 31 N. Y., 435 263 

Dayton V. Trull J38 Wend., 345 195 

Deanv. Tallman - 105 Mass., 443 ... 156 

Dease V.Jones 23 Miss., 133 215 

Debowv. Colfax 5Halst., 411 16 

DeCordon v. Smith 9 Texas, 129 163 

Deedly V. Cadwell 19 Conn., 218 300 

Deganv. Livingston 15 Mo., 230.. 142 

Deemingv. Foster .42 N. H., 165 184 

DeGampartv. Brown 28 Ark., 166 196 

DeKuyper v. Witteman 33 Fed. Eep., 871.... 101 

Delafleld V. Parish 25 N. Y., 9, 29. i.... 138,140 

Delasherois v. Delasherois 11 H. L. Cas., 62 142 

Delaware, etc., Co. v. Sanson ...1 Binn., 70 260 

Delmotte v. Taylor 1 Redf. Surr. Eep , 417. 134 

Demarestv. Wynkoop 1.3 Johns. Ch., 129 215 

Denham V. Sankey 38 Iowa, 269... 295 

Dennis v. Leclerc 1 Mart. (Orleans T.), 297. 93 

Dennis V. Sharman 31 Ga., 607 199 

Denny V. Faulkner ...22 Kan., 89.. 298 

Denny V. Parnell IRol. Abr., 591L. 28. 317 

Denton V. Livingston. ...9 Johns., 96 46 

Derby V. Derby 3 Drew., 495 40 

Derrick v. Monette. 73 Ala., 75 145 

Derringer V. Plate 29 Cal., 292 101 

Despatch Line of Packets v. Bellamy 

Mf'gCo , 12 N. H., 205 13 

Deupree v. Deupree .45 Ga., 415 141 

Devane V. Fennell ..2 bed., 37. 165 

Devane v. Larkins 3 Jones (N. C), Eq., 377. 244 

Devoev. Brandt-... 53 N. Y.,462.. 177 

Dew V. Jeffries Cro. Eliz., 353 388 

De Witt V. Hastings 69 N. Y., 518 264 

DeWittv. Yates 10 Johns., 156 243 

Dexter v..Voorhies 81 N. Y., 153.. 283 

Dibley V. Sheldon 10 Blatch., 178 177 

Dick V. Webster 6 Wis., 481 283 

Dickinson v.Dodds 2 Ch. D., 463, 472.... 145 

Dickinson V. Hatfield 1 Moody& Rob., 141. 217 

c 



XXXIV TABLE OF CASES. 

FAQE. 

Diehl V. Adams Co. Mut. Ins. Co 58 Pa. St., 443 238 

DingweUv. Askew.. 1 Cox, 427 248 

Dinsmore v. Dinsmore 31 Me., 433 217 

Disbrowv. Jones Harr. (Mich.) Ch., 48 231 

Dittmar V. Norman 118 Mass., 319 144 

Divine v. McCormiok 50 Barb., 116 185 

Dixey V. Pollock 8 Cal., 570... 281 

Dixon V. Yates Bam. & Ad., 313 165 

Doak V. Bank of the State 6 Ired (N. C), L. , 309. 399 

Doanev. Badger. 13 Mass., 65 86 

Dodge V. Kellock 13 Me., 136 283 

Doev. Mace 7 Black, 2 16,17 

Doed. Stewart V. Sheffield 13 East, 526 246 

Dole V. Lincoln .31 Me., 423 136 

Domick Y. Eeichenback 10 Serg. & E., 84 138 

Dominick v. Moore 2 Bradf. Surr., 201_. 244 

Donahue V. Lea 1 Swan (Tenn.), 119. 248 

Donaldson V. Becket .4 Burr., 2408 83, 84 

Donaldson V. FarweU 93 U.S., 631 178 

Doremusv. Howard .23 N. J. L., 390 303 

Doughty V. Doughty... .27 N. J. Eq., 315 283 

Douglassv. McAllister 3 Cranch, 298 305 

Douglass Axe Co. v. Gardner 10 Cush. ,88 207 

Dow V. Prescott .12 Mass., 419_ 283 

Dowv. Sanborn .3 AUen, 181 178 

Dow V. Worthen 37Vt., 108 159 

DowlingT. McKenney 124 Mass., 480 143 

Downerv. Smith 32Vt., 1 289 

Downs V. Nat. Exch. Bank... 91 U. S., 618 166 

Downs V. Eoss 33 Wend., 370 151 

Drake V. MitcheU 3 East, 358... Ill 

Dr. Jaeger's Sanitary Woolen System 

Co. V. Boutillier ..47 Hun, 521 97 

Drury v. Smith 1 P. Wms., 404 133 

Dubois V. Dubois 6 Cow., 499 276 

Duolaud V. Eoaseau J3 La. An., 168 128 

Dudley V. Hurst 67 Md., 44 13 

Duffieldv. Elwees 1 Bligh (N. S.), 583.. 134 

Duke of Queensbury v. ShebDear 2 Eden, 329 98 

Duncan v. Self.... 1 Murph. (N. C.),446 128 



TABLE OP OASES. XXXV 

PAGE. 

Dunham v. Johnson 135 Mass., 310 219 

Dunkv. Hunter 3 Barn. & Adol., 332 311 

Dunlop V. Lambert 6 Clark & F., 600 187 

Dunne v. Furgeson 1 Hayes, 540 154 

Duppav. Mayo ..1 Saund. R., 287 314, 333 

Dupperv. Mayo 1 Saund., 276 f. n. 4. 185 

Dupuy V. Gibson 36111., 197 800, 302 

Durantv. Friend 5 DeGex & Sm., 343. 248 

Durfee V. Jones ._ .11 R. I., 586 59 

Durkee v. Central Railway Co - .29 Vt. , 127 146 

Dustan V. McAndrew 44 N. Y., 72 201 

Dutch Church V. Mott .7 Paige, 83 45 

Duvergier v. Fellows 5 Bing., 248 46 

E. 

Eager V. Commonwealth 4 Mass., 182 215 

Eagle Ins. Co. v. Lafayette Ins. Co.. .9 Ind,, 443 232, 223 

Eakright v. Logansport & N. Ind. R. 

R. Co 13111., 404 258 

Easter v. Allen .8 Allen, 7 177 

Eastman V. Avery 28 Me., 248 298 

Eastman v. Shaw 65 N. Y., 522 209 

Eastman V. Wright 6 Pick., 316 388 

Eaton V. Munroe 53 Me., 631 69, 70 

Eaton V. Whiting 3 Pick., 484 300 

Eaves v.Estes... 10 Kan., 814 13,296 

Edan v. Dudfield 1 Q. B., 306 158 

Edgerton v. Hodge ..41 Vt., 676 159 

Edinburgh, etc., Ry. v. Hibblewhite..6 M. & W., 707 259 

Edwards v. Grand Trunk R. R. Co. ..54 Me., 105 158, 159 

48 Me., 379 150,153 

Eldridge v. Eldridge 6 Cush., 516 "244 

Elgeev. Cotton Cases. 23 Wall., 187 165 

Elkins V. Camden, etc., R. R. Co 86 N. J. Eq., 288 254 

Ellershaw V. Magniac 6 Ex., 570 166 

Ellicott V. United States Ins. Co. .8 Gill & Johns. (Md.), 166 239 

Elhngton V. Charleston 51 Ala., 166 397 

Elliott V. Davenport 1 P. Wms., 88 346 

Elliott V. Porter 5 Dana, 299 Ill 



xx:;yi table of oases. 

PAGE, 

Elliott V. Stoddard 98 Mass., 145 144 

Ellis V. Andrews 56 N. Y., 83 174 

Ellis V. "Walker Ambler, 310 243 

Ellison V. Brigham 38Vt.,64 153 

Ellison V. Daniels 11 N. H., 280 300 

EUison V. Ellison 6 Ves., 656 127 

EUithorp v. Robertson 4 Blatchf . ,307 74, 75 

Elmore V. Kingsgate 5 B. & C, 588 162 

Elmore V. Stone 1 Taunt., 458 _ 159 

Endersv. Enders..: 2 Barb., 362, 367 242 

Engmanv. Immel ..59 Wis., 249 218 

Enoch Morgan Sons' Co. v. Schwaok- 

hoefer 55 How. Pr., 37 103 

Erskine v. Plummet 7 Green!., 447 153 

Erwin v. Oregon Ey. & Nav. Co 37 Fed. Eep., 635.._ 270 

Essex Co. V, Pacific Mills 14 Allen, 389 275 

Essex V. Essex 30 Beav., 443 40 

Essex Bridge Co. v. Tuttle 3 Vt., 393 259 

Evanv. Herring .27 N. J. L., 243 314 

Evansv. Coventry 25 L. J. Ch., 489 267 

Evans V. Darlington .5Blackf., 320 398 

Evansv. Merriken .8Gill& J., 39 300 

Evansv, Powis lExch., 907 285 

Evans V. Roberts ...5 B & C, 836 154 

Evans v. Secrest 2 Ind., 545 122 

Evansv. Von Laer 33 Fed. Rep., 153 98 

Everett V. Hall .67 Me., 497 _ 295 

Ewellv. Crocker 4 Bosw., 23 239 

Ex parte Smyth 1 Swanst., 338 323 

Ex parte GUdhin 8 Met., 168, 170 278 

Ex parteGouthwa.it 3Mac. &G., 187 ... 267 

Ex parte Smith _16 U. S. Pat. Gaz., 179_ 100 

Ex parte 'Ba.gsha.w. .L. R. 4 Eq., 341 271 

Ex parte Beresford 2 Macn. &G., 197... 261 

£a; parte Miles 15 Q. B. Div., 39.... 193 

.Ec parte Thompson 4 Bradf. Surr. Rep., 154 139 

Ex parte Halliday 16 U. S. Pat. Gaz., 506. 100 

i7a! parte Dubost _.18 Ves., 140, 150 137 

Ex parte Brick Presb. Ch 3 Edw. Ch., 155 23 

Ex parte Reformed Presb. Ch .4 Sandf. Ch., 471 23 



TABLE OF CASES. XXXVU 

PAGE. 

Ex'rs of Gilmore v. Bank of Cinoiimati.8 Ohio, 63, 71 _ 265 

Eyrev. Higbee 23 How. Pr , 198.... 93 

23 How Pr., 198.... 94 

F. 

FairchUd V, Lynch 99N. Y., 359: _ 382 

Fairfield C. T. Co. v. Thorp 13 Conn., 173 35£ 

Fallow V. Chidester .46 la., 588 141 

Fallows V. Taylor 7 T. E., 475 3^7 

Falmouthv. Thomas 1 C. & M., 105 153 

Fargesv. Pugh 93 N. C, 31 178 

Farina V. Home 16 M. & W., 119 158 

Farley V. Craig .6 Halst., 363 333 

Farmer V. Grose .42 Cal., 169 _ 394 

Farmers, etc., Bank v. Lang .87 N. Y., 309 392 

Farmers, etc., Bank v. Logan 74 N. Y., 568 166 

Farmers' Loan & Trust Co. v. Farmers' 

Loan & Trust Co. of Kansas 31 Abb. N. C, 104. _ 103 

Farquharson V. Cave 3 Coll.. 356 133 

Farrellv. Bean. 10 Md., 317 394 

Farrow V. Bivings 13 Rich. Eq., 25 267 

Farwellv. Mather 10 Allen, 322 161 

Fassettv. Boylston 19 Pick., 361 23 

Faust's Adm'rx V. Birner 80Mo.,414 246 

Favorite V. Deardoflf 84Ind.,555 18 

Fawcett V. Laurie 1 Drew. & Sm., 193. 255 

Fawcettv. Osborn : 33 IU.,411 183 

Faxon V. Durant _...9 Met., 330 135 

Fay V. Muzzey 13 Gray, 53 30 

Feisev. Aquilar 3 Taunt., 506 234 

FeUv. Muller :.78Ind., 507 304 

Fell V. McHenry 43 Pa. St., 41.. 338 

Fentonv. Braden — 2 Cranch C. C, 650. 149 

Ferguson V. Wilson ..L. E., 2 Ch., 77 257 

Ferguson V. Davol Mills _7 Phila., 253 100 

'2Brewst.,214, 314.. 97,100 
Ferrie V. The Public Administrator.. 3 Bradf. Surr. Eep., 

240,263,263... 113, 115, 116 
Ferry V. The Bank of Central N. Y... 15 How. Pr. Eep., 

445,451 117 



XXXVUl TABLE OF OASES. 

PAGE. 

Fessler v. Love 48 Pa. St., 407 306 

Fetridgev. Wells.. 23 How. Pr., 385.... 98, 100 

Field V. Flanders 40 IU.,470 283 

Field V. Pierce.. 102 Mass., 253, 261.. 254 

I'iley V. Fassett... 44 Mo., 168 101 

Knev. Hornsby .3 Mo. App , 61 152 

Finley, etc., Co. v. Hurtz 34 Mich., 89 257 

Finnv. Donahue.^ 35 Conn., 216 180 

Finney V. Apgar ...31 N. J. L., 271 151 

Fire Department of New York v. Kip.lO Wend. ,366 _ 107 

First Nat. Bank v. Bailey 115 Mass., 230_ 166 

First Nat. Bank v. McManigle 69 Pa. St., 156 197 

Fishbackv. Van Dusen 33 Minn., Ill, 116... 167, 181 

33 Am. L. E., 506, 

note 167 

Fishery. Essex Bank 5 Gray, 373, 378 354 

Fisher V. Kuhn -54 Miss., 480..., 161 

Fishery. Murray .IE. D. Sm., 341 41 

Fisk V. Attorney General Law Rept. 4 Eq. , 531 245 

Fiskv. Miller.. 20 Tex., 579 280 

Fitch V. Burk ...38Vt., 689 165 

Fitch V. Peckham .16 Vt., 150 250 

Fitzmaarice V. Bailey 9 H. L. C, 78 152 

Flaggv. Mann.. 14 Pick., 483 301 

Flanders V. Barstow .18 Me., 357 293, 300 

Flanders V. Chamberlain 34 Mich., 305 398, 300 

Fleck V. Warner 35 Kan., 493 166 

Flecknerv. U. S. Bank 8 Wheat., 338 44 

Flick V. Weatherbee 30 Wis., 392 206 

Fleicherman v. Newman ...16 N. Y. State Rep., 794 99 

Fletcher v. Commonwealth Ins. Co. .. 18 Pick. ,419 230 

Fletcher V. Ingram 46 Wis., 201 165 

Fletcher V. McGill 10 N. E., 651 257 

Flint V. Ohio Ins. Co 8 Ohio. 501 227 

Floryv. Denny .7 Exch., 581 293 

Floyd V.Brown 1 Rawle, 125 Ill 

Folsom V. Marsh 2 Story, 109,118 89, 93 

Fonvillev. Casey 1 Murphy (N. C), 387 148 

Footv. Marsh 51 N. Y.,288 168 

Foote, Appellant 22 Pick., 299 241 



TABLE OF CASES. XXXIX 

PAGE. 

Footev. Colvin 3 Johns., 216 16 

Foote V. Silsby 3 Blatohf., 260 73 

Forbes V. Shattuck 23 Barb.. 568 37 

Forbush v. Cook.... 20 Law R., 664 81 

Ford V. Cobb 20 N. Y., 844 295, 296 

Fordv. Ford .3 Foster (N. H.), 213. 248 

Ford V, Ransom _39 How. Pr. (N. S.), 416 297 

Foreman v. Nelson '. 2 Rich. Eq., 287 291 

Forsyth v. Price 8 Watts, 282.... 17 

Fortmanv. Goepper 14 Ohio St., 558 296 

Fosdick V. Shall .99 U. S., 235, 250 ... 164.166 

Foster V. Mabe 4 Ala., 403 154 

Foster V. Smith 18 C. B., 156 182 

Fountain V. Tyler 9 Price, 94, 101 .. . . " 241 

Fourth Ecclesiastical Soc. v. Mather. .15 Conn. , 582 122 

Fowlev. Spear "..7Penn.,L. J, 176... 101 

Fowler V. Indemnity Ins. Co ..26N. Y., 422 230 

Fowler V. Stoneman llTe.x;.,478 293 

Foxv. Fox.. lAtk.,463 251 

Fox V. Horab 1 Ired. (N. C), 358.. 269 

Fragano V. Long. 4 B. &C., 219.- 169 

Frank v. Calhoun .59 Pa. St., 381 275 

Frank v. Miller ..38 Md., 461 161 

Franklin Ins. Co. v. Drake 2 B. Mon. (Ky.). 47.. 280 

Franklin Ins. Co. v. Findlay 6 Whart. (Pa.), 483.. 230 

Franklin Sav. Inst. v. People's Sav. 

Bank... _ — 

Franklin Bridge Co. v. Wood 14Ga.,80 43 

Frazierv. Simmons 139 Mass., 581, 535.. 186 

Frederick's Appeal 53 Penn St., 338 186 

Freeman V. Baldwin. 13 Ala., 246 293 

Freeman V. Freeman 17 N. J. Eq., 44 3'i3 

Freeman V. Winchester 18 Miss., 577 260 

Freeport v. Bartol 3 Greedl., 340 161 

French v. Burns 35 Conn., 859 294 

French V. Vining 102 Mass., 133 175 

Freyman v. Knecht 78 Pa. St., 141 207 

Frost V. Johnson. -. 8 Ohio, 393 285 

Frostbury Mining Co. v. New England 

Glass Co., ..9Cush.,115 156 



Xl TABLE OF CASES. 

PAGE. 

Fry V. Breckinridge 7B. Mon., 31 314 

Fry V. Lexington, etc., R. R. Co ^ Mete. (Ky.), 314... 25& 

Fryattv. Sullivan, Co 7 Hill, 539 6S 

Fryer V. Ranken 11 Sim., 55 273 

Fryer V. Roe 12 C B , 437 214 

22 Eng. L. & Eq., 440 214 

FuUagerv. Reville .3 Hun, 600 289 

FuUam v. New York, etc. , Ins. Co. . . .7 Gray, 61 236 

Fuller V. Rowe 57 N. Y., 23 264 

FuUington V. Goodwin 57 Vt., 641 13 

Furgeson V. Davol Mills 7Phia., 253 97 

Ferguson V. Miller. 1 Cow., 243 64 

Fergusson V. Norman 5 Bing. N. C, 76 179 



Gaarv. Hurd 92 III., 315 295 

Gadsen V. Lance 1 McMul. Eq., 87.. .1 151 

Gale V. Nixon ...6 Cow., 445 317 

Gallagher V. Waring 9 Wend., 20, 28 184 

GaUup V. Josselyn 7 Vt, 384 66 

Galpin v. Page 18 Wall., 350 281 

Gannard v. Elslava 29 Ala., 732 128 

Gannetv. Tucker 18 Ala., 27 132 

Gano V.Hart , Hardin (Ky.), 297... 314 

Gardnerv. Buokbee 3 Cow., 130 283 

Gardner V. Cleveland 9 Pick., 334 86 

Gardiner V. Gardiner 34 N. Y., 155 139 

Gardnerv. Joy 9 Met., 177 152 

Gardnerv. Merritt 32 Md., 78 126 

Gardnerv. McEwen 19 N. Y., 133 147 

Gardner V. Printup 3 Barb., 83,89 246 

Garforth V. Bradley 2Ves., 675 123 

Garvin V. WisweU 83 111., 210 61 

Garnett v. Macon 6 Call., 808 288 

Gates v.BUss .43 Vt., 299 207 

Gates V. Fraser 9 111. App., 634 34 

Gates V. Green : 4 Paige, 355 820 

Gates V. Madison Co. Mut. Ins. Co 5 N. Y. , 469 233 

Gault V. Brown .48 N. H., 183 155 



TABLE OF CASES. 



xli 



PACE. 

Gebhardv. Garnier 13 Bush., 331 HO 

Gee V. Pritchard 3 Swans., 413 93 

Gee V. Young Hayw., 17 15- 

Georgev. Concord .45 N. H., 484 _ 274 

George V. Green 13N. H., 531 143 

Germantown, etc. , R'y Co. v. Fitter. .60 Pa. St. , 134 358 

Gheenv. Osborn 17Serg. &R., 171... 333 

Gibbon v. Ogden 9 Wheat. ,197, 337, 335, 338 . 120 

Gibbons v. United States 8 Wall., 269 203 

Gibbsv. Benjamin 45 Vt., 124 156 

Gibson V. Carruthers... 8 M. & W., 337 190 

Gibson v. Perry.... _ 29 Mo., 245 820 

Gifford V. Carvill 29 Cal., 589 183 

GifEord V. Ford 5 Vt., 533 398 

Gilbert V.N. Y. C. R. R. Co .4 Hun, 378 164 

Giles V. Comstock .4N.Y.,370 322 

Giffordv. Thorne 9 N. J. Eq. (1 Stock.), 703 244 

GUlv. Kauffman ....16 Kan., 571 184 

Gill V. Weaver IDev. &.B. (N. C.),Eq.,41. 244 

Gillettv. Mason 7 Johns., 16 64 

Gillottv. Esterbrook .48 K. Y., 374 99 

GiUmanv. Hill 36 N. H.,311, 318.... 155, 157 

Gilman V. Andrews 66 Iowa, 116 205 

Gilmer V. Gilmer 42 Ala., 9 241 

Gilmorev. Supple IIP. C, 551 165 

Girardv. Taggart. .5 Serg. &R., 33 303 

Gittingsv. Nelson 86 Bl., 591 147 

Gladstone V. King 1 Maule & S., 35 ... 234 

Gleasonv. Dodd .4 Met, 333 281 

Gleasonv. Drew 9 Me., 81. 289 

Glenn V. Sample.. 80 Ala., 159 263 

Glenn V. WilUams 60 Md., 93 263 

Glick V.Crist 37 Ohio St., 388 218 

Glover V. Payne 19 Wend., 518 _ 301 

Goddardv. Binney 115 Mass., 450 151 

Godfrey v. White 60 Mich., 443... 37 

Godillott V. Harris 81 N. Y., 263 102 

Godst V.Rose 17 C. B., 239 158 

35L. J. C. P., 61.... 158 

Goff V. Craven 34 Hun, 150 Ill 



Xlii TABLE OF OASES. 

PAGE, 

Gofle V. KiltB 15 Wend., 550 64 

Colder v. CockrUL... :A Kan., 259 299 

Golden V. Glock 57Wis., 118— 7 

Golderv. Ogden 15 Pa. St., 358 164 

Goodv. Cheeseman 3 B. &Ad., 704 285 

Goodall V. N. E. Mut. Fire Ins. Co.— 5 Frost. (N. H.), 169. 228 

Goodallv. Skelton 2 H. Bl., 316 159 

Goodman V. Griffiths H. &N.,574... 162 

Goodman v. Simonds 20 How., 343.. 60 

Ooodnowv. AUen 68 Me., 808. 295 

Goodrich V. Jones 2 HiU, 143 20 

Goodwin V. Hardy 57 Me., 148 255 

Goodyear V. Day 3 Wall. Jr., 388 74, 75 

Goram V. Fisher 30 Vt., 438 157 

Gordon V. Butler 105 U. S., 553 174 

Gordon V. Clapp ...113 Mass., 355 303 

Gordon v. London Assurance Co 1 Burr. ,492.. 223 

Gordon V. Norris 49 N. H., 376 204 

Gorman V. RusseU 18 Cal., 688 47 

Gorton Y. Hadsell 9 Cush., 508 21, 22 

Gosslerv. Schepeler 5 Daly, 476 192 

Gourley V. Thompson. 2 Sneed. (Tenn.), 387 142 

Goiirley V. Linsenbigler ...51 Penn. St., 345 131 

Gowingv. Knowles.. 118 Mass., 333 145 

Graffenstein V. Epstein. 23 Kan., 443... 174 

Grafton v. Cummings 99 U. S., 100 162 

Graham V. Eoberts ..1 Head, 56, 59 282 

Granard v. Dunkin 1 Ball & B., 207 92 

Grand Tower Co. v. Phillips .23 Wall. ,471 204 

Granger v. Bassett .98 Mass., 463 46 

Grantham V. Hawley Hob., 182 15, 148 

Gratzv. Redd 4 B. Mon., 178 254 

Graves v. Weld 5 B. & Ad., 105 15 

Gray v. Baker 17 Mass., 435 21 

Gray V. Barton .55 N. Y., 68, 72 136 

Gray v. Bennett 3 Met., 523 277 

Gray V. Coffin 9 Cush., 193 262 

Gray V. Davis ION. Y.,285 157 

Gray V.Hall 29 Kan , 704 204 

Gray V. Russell 1 Story, 11 89 



TABLE OF CASES. xHil 

PAGE. 

Great Northwestern Ey. Co. v, Ken- 
nedy 4Exoh.,417, 435.... 260 

Great Falls Mut. Fire Ins. Co. v. 

Harvey 45N.H.,293 23a 

Greathouse V. Dunlap 3 McLean, 303 287 

Greeley V. Waterhouse 19 Me., 9 _ 304, 305 

Green V. Armstrong 1 Denio, 550 153 

Green V. Kornegay .4 Jones (N. C.),L., 66 127 

Green v. Merriam 28 Vt., 801 158 

Green way V. Fuller .47Mich.,557 295 

Gregory V. Schoenell , 55 Ind., 101... 175 

Gregory V. Stryker 2 Den., 638 69 

Gridley V. Dorn 57Cal., 78... 225 

Grierv. Cowan J^ddis, 347 311 

Griffith V. Charlotte, etc., R. E. Co... 23 S. C, 65; 55 Am. 

Eep. 1 23 

Griffith V. Cowen 13 M. & W., 58 194 

Griffith V. Mangam 73N. Y.,611 261 

Grignon v. Astor 2 How., 319 279 

Grimv. Byrd 33 Gratt., 293 175 

Grimes V. Van Fetchen 20 Mich., 410 15ft 

Grigsby v. Breckenridge 2 Bush (Ky.), 480, 486 93, 93, 94 

Griswell V. Bristowe L. E 3 C. P., 112... 366 

Griswold V. Penniman .2 Conn., 564 122 

Groat v.Gile... 51 N. Y., 431... 165 

Grose v. HUt. 36 Me., 22 262 

Gross V. Nugent 5 B. & Ad., 58, 65,66 288 

Grosse Isle Hotel Co. v. L'Anson's 

Exrs 42N. J. L., 10 258 

43 N. J. L., 443 258 

Groutv, Hill 4 Gray, 361 191 

Grovev. Brien 8How.,439 168 

Grover V. Grover 24 Pick., 261 137 

Grymes v. Hone 40 N. X., 17, 20 132 

Guicev. Crenshaw. 60 Tex., 344 204 

Guierv. Pearoe... 2 Browne (Pa.), 35.. 217 

Guntherv. Atwell 19 Md., 157 184 

Gumey V. Howe.. 9 Gray, 404 197 

Guthrie v. Weaver .1 Mo. App., 136 23 

Guyther' V. Taylor 3 Ired. (N. C), Eq., 338 244 

G win's Estate. ....1 Tuck. Surr., 44 139 



xliv 



TABLE OF CASES. 



PAGE. 



H. 

Hackett V. ManloYe 14 Cal.', 85 299 

Hackney V. Vrooman 63 Barb.. 650. _ 126 

Hadley V. Russell .40N. H., 109, 113.... 267 

Hagar v. Union National Bank 63Me.,509 255 

Hahn V. Doolittle 18 Wis., 196 183 

Haightv. DelaOour 3 Camp., 319 224 

Halev. Hale 4 Humph., 183 217 

Halev. Huntley 21 Vt., 147 164 

Halev. Omaha Nat. Bank 64 N. Y., 550 303 

Halev. Rice 124Mass., 293 219 

Hallv. Rellows 11 N. J. Eq., 383.... 298 

Hall V. Burrows '. 8 L. T. (N. S.), 227.. 101 

9 L. T. (N. S.), 561.. 101 

Hallv. Ditson 53 How. Pr., 19 303 

Hallv. Durham .109 Ind., 484. 280 

H,,Uv. Taylor 47 Conn., 550 187 

Hallv. HaU. 18Ga.,40 138 

Hall V. Hamlin ..3 Watts (Pa.), 354... 281 

Hallv. Hill ..IDru. &War., 94, 111-133. 249 

Hallv. MuUin 5 Har. & J., 190, 193 180 

Hallv. Rose Hill, etc., Co 6 Ohio St., 489 255 

Hallv. Snowhill 14 N. J. L., 8 297 

Hall V. United States Ins. Co 5 Gill fiVid.), 484 265 

Hallv. WOes 3 Blatchf., 194r-200.. 73 

Hall V. Williams. 6 Pick., 333 281 

Hallenv. Runder 16 M. & R., 267 154 

HaUock V. Com. Ins. Co 3 Dutch. (N. J.), 268. 227, 228 

3 Dutch. (N. J.), 645. 227, 238 

HalloweU V. Skinner .4Ired. (N. C.) L., 165 138 

Halsenv. Lockwood 37 Conn., 500 21 

Hamaker v. Blanohard 90 Pa. St., 377 59 

35 Am. Rep., 664 59 

Hamilton V. Jiitchell 6 Blackf., 131 297 

Hamilton Mut. Ins. Co. v. Hobart 2 Gray, 543 238 

Hammell v. Thurmond 17 Ark., 203. 383 

Hammersv. Dole.... 61 111., 207.. 303 

Hammet v. Linneman .48 N. Y., 399 166 

Handson V. Porter 13 Conn., 59 17 

Hanley V. Donaghue 116 U. S., 1 281 



TABLE OF CASES. xlv 

PAGE. 

Hanna V.Flint 14 Cal., 73 39 

Hansmanv. Nye 63 Ind., 485 156 

Hanson V. Buckner .4 Dana, 251 127, 180 

Hanson V. Edgerton J39K H., 357.. 175 

Hansonv. Myer... .6 East, 614 164, 168 

Hoginsv. Plympton 11 i'ick., 99 183 

Harbaughv. Kohn .52 Ind., 243 , 283 

HardeU V. McClure 1 Chandl.,271 151 

Harev. Pearson 4 Ired. (N. C.) L., 76. 18 

Harknessv. Eraser 12 Fla., 836 173 

Harlow V. EUis. 15 Gray, 229 166 

Harmon V. Eeeve 18 0. B., 586 155 

25L. J. C. P., 257... 155 

Harper V.Hampton 1 Harr. & J.,673 2S6 

Harper V. MoWhorter _18 Ala., 229 123 

HarreUv. MlUer 35 Miss., 700 153 

Harriman V. Harriman _'.13 Gray, 341 286 

Harris V. Cornell 80 111., 54 282 

Harris v. Eagle Ins. Co 5 Johns., 868 224 

Harris V. Harris 23 Gratt., 737 287 

Harris V. Howard .56 Vt., 695 218 

Harrisv. McGovem 99 U.S., 161 214 

Harris V. Nicholas :.5Manf.,483 147 

Harris v. Pratt 17 N. Y., 249 193 

Harrisv. Shipway -Bull. N. P., 183 312 

Harris v. York Mut. Ins. Co 50 Pa. St., 341 230 

Harris Mfg. Co. v. Marsh 49 Iowa, 11 303 

Harrison V. Bamsby 5 Tenn. R., 346 313 

Harrison V. Vines 46 Tex., 15, 21 254 

Hartv. Burton 7 J. J. Marsh., 333.. 293 

Hartv. Jewett '. 11 Iowa, 376 382,290 

Hart V. Pendergast ...14M. & W., 746 216 

Hartford, etc., B. E. Co. v. Boorman.l3 Conn., 530 265 

Hartmanv. Ogborn .54 Pa. St., 130 280 

Hartman v. Strickler 83 Va., 225 139 

Hartshorne v. Watson 5 Scott; 506_ 318 

Hartwell v. Bissell 17 Johns., 128 18 

Hasbrouckv. Lounsberry 26N. Y.,598 166 

Haskell V. McHenry ..4 Cal., 411 302 

Hastiev. Couturier 9 Ex., 102.. 147 

5H. L. C, 678 147 



xlvi 



TABLE OF CASES. 



PAGE. 

Hastings v. Drew 76 N. Y., 9 254 

Hastings v. Lovering 3 Pick., 215 184 

Hatch V. Atkinson 56 Me., 323 133, 134 

Hatch v.Cana 101 U. S., 305 263 

Hatch V. Oil Co 100 U.S., 131 165 

Hathway V. Brayman .43 N. Y., 333. 397 

Hathway v. Moran 44 Me., 67 180' 

Hathomv. King 8 Mass., 371 138 

Havens v.- Havens 1 Sandf. Ch., 334 348 

Hawkins v. Everett 5 Jones (N. C), Eq., 45 246 

Hawley V. Upton 103 U. S., 314 356 

Haydenv. Demets 53N. Y.,436 20» 

Haysv. Sulsor 1 Fish., 533 76 

Hazard V. Day 14 Allen, 494 161 

Hazlebakerv. Reeves 13 Pa. St., 364 317 

Hazletonv. Allen 3 Allen, 114 117 

Hazzardv. Irwin 18 Pick., 95, 106 287 

Hazzardv. Loring 10 Gush., 267 394 

Head V.Goodwin .37 Me., 183 147 

Headley V. Goundray .41 Barb., 383 300 

Healy V. Spence 8Exch., 668 386 

Heart V. State Bank .3 Dev. Eq., Ill 357 

Heath V. Barmore 50 N. Y., 303 268 

Heath V. Williams 30 Ind., 495 294, 301 

Hederich V. Smith 103 Ind., 208 13 

Heeney V. St. Peter's Ch 2 Edw. Ch., 608 23 

Hegan V. Johnson .2 Taunt., 148 . 312 

Hegeman v. McArthur 1 E. D. Smith, 147 .. 331 

Hegeman & Co. V. Hegeman 8 Daly, 1 101 

Henklev. Dillon 15 Ore., 610 13 

Henkle v. Salem Mfg. Co 39 Ohio St., 547 367 

Henenquin v. Naylor 24 N. Y., 139 178 

Henry V. Jackson. .37 Vt., 431 48 

Henry v. Vermillion, etc., Turnpike 

Co 17 Ohio, 187 261 

Henshaw v. Foster ...9 Pick., 312 140' 

Hensloe's Case 9 Rep., 37, 38 115 

Hepburn V. SeweU 5 Har. & J., 211 Ill, 291 

Herryfordv. Davis ..103U. S., 335 29& 

Hershfieldv. Claflin 35 Kan., 166 _. 41 



TABLE OF OASES. xlvii 

PAGE. 

HessT. "Werts 4Serg. &E., 356 47 

Hewes V. Jordan. 39 Md., 473 156 

Heylandv. Badger 35Cal.,404 209 

Hiatttv. Griswold 5 Fed. Rep., 573 267 

Hickman V. Shimp 109 Pa. St., 16 181 

Hickokv. Buck.. 33 Vt., 149 211 

Hicks V. Cleveland... 48 N. Y., 84 159 

Hier v. Abraham 83 N. Y., 519 97 

Higgins V. Kasterer ..4 Mich , 318 7 

Higginsv. Murray 73 N. Y., 353 203 

Higgins V. Scott 3 B. & Ad., 413 S18 

Higham V. Harris '. 108 Ind., 346 289 

Hightv. Sackett 34 N. Y., 447, 451... 210 

Hightv. Ripley 19 Me., 137 151 

Hightower v. Thornton 8 Ga., 486, 500.... 253, 358, 361 

Hillv. Chapman 59 Wis., 211 204 

Hillv. Hollister 1 Wilson, 139 336 

Hillv. Kidd ...43 Cal.. 615 235 

Hillv. Smith... .33Vt.,433 205 

Hill v. Snell 104 Mass., 173 60 

Hillv. Wentworth 38Vt.,428 13 

Hinde v.'Whitehouse 7 East, 558 161, 163 

Hinnemanv. Rosenback 39 N. Y., 98 275 

Hitchingsv. Pettengill .58 N. H., 3 174 

Hoadleyv. House 33 Vt., 179 207 

Hoadley V. McLaine ...10 Bing., 482, 487... 145, 149 

Hobart v. Littlefield 13 R. I., 341 166 

Hobbs V. Francis 19 How. Pr. Rep. , 567. 101 

Hocker V. Gentry 3 Mete. (Ky.;, 463... 246 

Hodge V. Macauley 25 Vt.,316 218 

Hodgesv. Green. 1 JJ8 Vt., 358 31 

Hodges V. Richmond Mfg. Co 9R.I.,483 155 

Hodgesv. Tenn. M. & F., Ins. C0....8N. Y., 416 394 

Hodgson V. Barrett 33 Ohio St., 63 196 

Hodsdenv. Lloyd 2 Br. Cr. Cas., 534... 141 

Hogg V. Emmerson 6 How., 437 78 

Hogins V. Plympton .11 Pick., 97 1&4 

HofEman v. Carow .22 Wend., 385 60. K» 

Holbrook v. Chamberlin 116 Mass., 155 la 

Holderness V, Shackles 8 B. &. C, 613 38 



xlviii 



TABLE OF CASES. 



PA&lt. 

Holf ord V. "Wood 4Ve3., 76 243 

Holland v. Lyns 56 Ga., 56 197 

Holland v.Eea.. 48 Mich., 310 JjOl 

Holland V. Trotter ^3 Gratt., 136 283 

Hollister V. Abbott 31 N. H., 443 383 

31N.H., 443 290 

Hollzapffelv. Baker 18Ves.,415 S30 

Holmanv. Lock. .51 Ala., 387 295 

Holmes v. Gharlestown Mut. Fire Ins. 

Co lOMet, 311 234 

Hblmeav. Higgins IB. & C, 74 47 

Holmes V. MitcheU 7 C. B N. S., 361... 163 

Holroydv. MarshaU 10 H. L. 0., 191 148 

Holt V. Jolinson 14 Johns., 435 _ 315 

Homerv. Perkins 124 Mass., 481 174 

Hone V. Mut. Safety Ins. Co .1 Sandf . , 137 223 

Hooper v. Hudson Eiver Ins. Co 17 N. Y., 424, 426... 231 

Hoover V. Peters 13 Mich., 51 185 

Hope V. Eddington Lalor, 43 321 

Hope V. Hutchins .9 Gill & J. (Md,), 77_ 128 

Hopkins v. Tanqueray 15 C. B., 130 183 

33 L J. C. P., 163... 182 

Hopson V. Fountain 5 Humph. (Tenn.), 140. 373 

Hopwood V. Hopwood 7 H. L. Cas., 728 248 

Hornev. Home 9 Ired. (N. C.)L., 99. 138 ■ 

Horner V. Carter 11 Fed. Eep., 363.._ 269 

Horav. Baker 8 CaJ., 603 165 

Hortonv. Bufflngton 105 Mass., 399 180 

Hostetter v. Adams 30 Blatchf . C. C. , 826 97, 99 

Hotchkissv. Greenwood. 11 How., 248 74 

Hotham v. East India Co 1 Doug., 273, 377 180 

Honbottle V. Kinney. 53N.Y. Super. Ct., 41. 99 

Hountz V. Kirkpatrick ..73 Pa. St., 376 149 

House V. Grant... .4Lans., 396 133 

Housemirev. Moulton ..15 Ind., 367 282 

Houston V. Moore 5 Wheat. , 34, 49, 52, 54. . 120 

Hovey V. Henry Law J., 153 77 

How V. Gunn .33 Beav., 463 93 

Howard V. Albany Ins. Co .3 Denio, 301 330 

Howard V. Coke ...-7B. Mon. (Ky.), 655. 138 



TABLE OF CASES. xllX 

PAGE. 

Howard V.Daly 61N. Y.,362 146 

Howaxdv. DoolitUe ..3 Duer, 464 330 

Howard v. Emerson 110 Mass., 321 185 

Howard V. Fessenden 14 Allen, 134 154 

Howard V. First Parish ....7 Pick., 138 33 

Howard V. Gunn '....33 Beav., 463 93 

Howard V. Harris ...8 Allen, 297 143 

Howard V. Hoey 33 Wend., 350 184 

Howard V. Rawsay, .7 Harr. & J., 130 315 

Howe V. Batchelder -49 N. H., 304, 319... 16, 153 

Howe V. Hayward 108 Mass., 54... 159 

Howev. Howe. IN. H.,'49 818 

Howe V. Starkweather. ...17 B^ass., 340 46 

■Howev. Stevens 47Vt.,363 21 

HoweU V. Schenck 4 Gabe, 89 16 

HoweU V. Young 5 B. & C, 359 214 

Howes V. Bigelow .13 Mass., 384 133 

Rowland v. Coflln 12 Pick., 135 817 

Hoxiev. Chaney 143 Mass., 593 101 

58 Am. Rep, 149 101 

Hoyden v. Green 56 Iowa, 733 287 

Hoytv. Hartford Ins. Co. 26 Hun, 416 168 

Hoyt V. Mackenzie 3 Barb., Ch , 320 93 

Hubbard v. Hubbard 8 N. Y., 196 139 

Hubbard V. Howell.. j 51 Conn., 433 305 

Huddersfield Canal Co. v. Buckley.. .7 T. R., 36 265 

Hudson V. Weir 39 Ala., 394 153 

Huffv.'Hii-es ..39 N. J. L., 4 164 

Huff V. McCauley 53 Pa. St., 306 153 

Hughes V. AntietamMfg. Co 34 Md., 316 259 

Hughes V. Edwards ..9 Wheat., 500 300 

Hughes V. Sheafl 19 Iowa, 335 301 

Hughes V. Vermont Cop. Mining C0...73 N. Y., 307, 210... 254 

Hull V. Camley 3 Duer, 99. 399 

HuUv, Fields ^ 76 Va., 591 _ 175 

Humble V. Oliver Cro. Eliz., 338 817 

Humphreys v. Comline 8 Blatchf., 516 185 

HumphreysviUe, etc., Co. v. Vermont, 

etc., Co 33Vt.,93 205 

Humphries V. Humphries 3 Ired., 363 17 

D 



1 TABLE OF CASES. 

PAGE. 

Hungate V. Reynolds 72 El., 435 303 

Huntv. Bates 7 E. I., 217 Ill 

Hunt V. Cope Cowper, 343 331 

Huntv. Hetcht .8 Ex., 814. 157 

Huntv. Hecht 22L. J. Ex., 293 157 

Huntv. Hunt 73 N. Y., 217, 340... 281,283 

Hunter v. Blain Ji Bailey, 168 313 

Hunter V. Bosworth .43 Wis., 583 148 

Hunter v. Looonte .6 Cow., 738 313 

Hunter v. WetseU 17 Hun, 135 159, 160- 

Hunter v. "Westell 84 N. Y., 594 187 

38 Am. Rep., 544.... 187 

Hunter v. Wetsel. 84 N. Y., 544 160 

Huntington V. Hall 36 Me., 501.. 183 

Huntley V. Whittier 105 Mass., 391 197 

Hunton V. Nichols .55 Tex., 317 314 

Hurdv. Cook .75N.Y.,454 165 

Hurd v. West 7 Cow., 752 311 

Hurford v. Harned 6 Oreg., 363 394 

HurfiE V. Hires 39 N. J. L., 581 168 

Hurlburtv. Hurlbut 1.. 49 Hun, 189 136 

Hurry v. The John and Alice 1 Wash., 393 305 

Huwer v. Dannonhoflfer 83 N. Y., 499, 503.. 99, 101, 103 

Hutchins V. Masterson.: 46 Tex., 551 13 

Hutchingsv. Miner .46 N. Y., 456 136- 

Hutchinson V. Dubois 45 Mich., 143 41 

Hutchinson V. Hunter 7 Pa. St., 140 164, 168 

Hutchinson V. Scott .3Mees& W., 809... 314 

Hutzler v. Lord .64 Md., 534 266 

Huxley V.King :40 Mich., 73 283 

Hyatt eiai. v. Allen .56N. Y., 553 46 

Hyde v. Cookson ...21 Barb., 93 70 

Hyde V.Stone .9 Cow., 230 36, 133 



Ide V. Stanton 15 Vt., 685 161, 163 

15Vt., 685 150 

Idleyv. Bowen 11 Wend., 335 141 

Idol V. Jones 3 Dev. (N. C.) L., 163. 64 



TABLE OF CASES, fl 

Ilesv. Cox 83Ind.,577 287 

Ilsley V. Stubbs _9 Mass , 65, 71 193 

Indianapolis, etc. , R. R. Co. v. Maguire.62 Ind. , 140 204 

Ingv.Brow-n 3 Md. Ch., 531 293 

InPye, exparte 18 Ves., 140, 153 248 

In re Dyer 1 Hagg., 219 140 

In re Lewes' Trusts Law Rep. 11 Eq!, 336 345 

JjirePoweU 5 Jur.,N. S..331.... 273 

JnrePratt 10 U S. Pat. Gaz., 866 100 

Instone v. Frankford Bridge Co 2 Bibb. ,576 260 

Insurance Co. v. Chase 5 Wall., 509 333 

Insurance Co. v. Connor 17 Pa. St., 136 338 

Irish V. Nutting .47 Barb., 370 136,131,133 

Iron Cliffs Co. V. Buhl 43 Mich., 86 168 

Irvine V. Stone - ..6 Cush., 508 155 



Jack V. Smith 1 Bay, 315 313 

Jackson V. Covert 5 Wend., 139 _ 150 

Jackson V. Eddy - 12 Mo., 209 321 

Jackson V. Housel ...17 Johns., 281, 283.. 1 

Jackson v. Johnson 5 Cow., 74 215 

Jackson V. Sheldon 6 Cow., 103 313 

Jackson V. Smith 1 Bay, 315 311 

Jackson V. Stackhouse 1 Cow., 132 287, 288 

Jkckson V. Twenty-third St. R. Co.. ..88 N, Y., 520, 526... 136 

Jackson V. Watts 1 McCord, 388 159 

Jackson V. Wheat ._. 18 Johns., 40 315 

Jackson's Adm'rs v. Newark Plank 

Road Co 31N. J. Law, 277... 355 

James V. Bocage 45 Ark., 384 183 

James V. Muir 33 Mich., 324 149 

James v. Parry 35 Albany L. J., 12.. 100 

55 L. T. Rep., N. S., 415 100 

James v. Woodruff 10 Paige, 541 268 

2 Denio, 574 48 

Jarrold v. Houlston 3 Kay & J., 708 89 

Jefferysv. Boosey .4 H. L. C, 962 84, 

Jeffries v. Great Western R. R. Co..-.34 Eng. L. & Eq., 122 59 



Hi TABLE OF CASES. 

PAGE. 

JefiEerys V. Jeflferys Craig&P., 138 287 

24L.T. Rep., N. S., 177 268 

Jelksv. Barrett 5BMiss., 315 161 

Jenkins v. Fowler 63 N. H., 244 272 

Jenkins V. Norton ....SB. Mon. (Ky.), 28.. 318 

Jenkins V. Powell 2 Vern., 115 248 

Jenkyns V. Usbome 7 M, & G., 678, 698.. 193 

8 Scott, N. R., 505... 192 

Jenness V. Wendell 51 N. H., 63, 67 155 

Tennings v. Chenango Co. Mut. Ins. 

Co.. .2 Denio, 75 232 

Jennings V. Ins. Co. of Pa 4Binn.,244. 304 

Jewett V. Smith _12Mass., 809 115 

Jones V. Barkley 2 Doug., 684-691 181 

Jones V. Creveling Harr. N. J., 127 243 

Jones V. Davis ..35 Ohio St., 474, 477. 254 

Jones V. Emery 40N. H.,348. 172 

Jonesv. Flint _10 A. &E.,755 154 

Jones V.Jones 91 Ind., 378.. 214 

Jonesv. Mechanics' Bank 39 Md., 287 156 

Jonesv. RimmtT 14 Ch. D., 588, 593.. 174 

Jonesv. Savage - 6 Wend., 658 195 

Jonesv. Selby Free. Ch., 300 134 

Jonesv. Thomas 8Blackf.,428 16, 17 

Jonesv. Towne 58 N. H., 462 22 

Johnson V. Buck.. 35 N. J. L., 339 161 

Johnson v. Crawfordsville R. R. do.. .11 Ind., 258 258 

Johnson V. Dodgson _3 M, & W., 656 156 

Johnson V. Hunt 11 Wend., 135 66 

Johnson V. Jefries 30 Mo., 423 299 

Johnson V. Johnson 30111., 215 279 

Johnson V. Root _2Fish., 291 76 

Johnson V. Shippin 2 Ld. Raym., 984 806 

Johnson V. Underhill 52 N. T., 203 266 

Johnson V. Willis 7 Gray, 164 198 

Johnston V. Marinus 18 Abb. N. C, 72j... 24 

Jordan V. James. 5 Ohio, 88 191 

Jordan V. Morton 4M&W., 155 145 

Joy V. Schloss 12 Daly, 533 151 

Joyce V. A.dams 8 N. Y., 291 164 



TABLE OF CASES. 



liii 



PAGE. 

Joyce V. Murphy 8N.Y.,291 143 

Joyce V. Swaee _ 17 C. B. (N. S.), 84, 101. 145 

Judsonv. Cope 1 Fish., 615 76 

Junction, etc., R. R. Co. v. Reve 15 Ind., 236 256 

Jurgenson v. Alexander _24 How. Pr. R., 269. 104 

Justice V. Lang 43N.Y.,493 163 

K. 

Kansas City Hotel Co. v. Hunt 57 Mo., 126 256 

Ease V.John .10 Watts, 107. .1 207 

Kayv. Waghom 1 Taunt., 428 _ 286 

Keanv. Johnson 9 N. J. Eq., 40i: 270 

Kearney V. McComb ^...16N. J. Eq., 189 801 

Keeler V. Salisbury 33 N. Y., 648 _ 286 

Keene v. Kimball 16 Gray, 548 90 

Keflferv. Grayson _76 Va., 517 _ 287 

Keiete v. Myer 61 Md., 558 163 

Keilerv. Tutt 31 Mo., 301 143 

KeUv. Charmer 23 Beav.. 195 140 

Kelley v. Mariposa, etc., Co .4 Hun, 632 271 

Kellogg V. Dickinson 18 Vt., 266 22 

KeUogg V. Stockwell 75 111., 68 866 

KeUogg V. Witherhead 4 Hun, 273 _ 151 

Kelly V. Mize 3 Sneed (Tenn.), 59.. 290 

Kelly V. Thompson 7 Watts, 401 801 

Kempv. Falk .7 App. Cas., 573, 581. 191 

Kenebelv. Scrafton 2 Bast, 530 141 

Kentv. Ginten 23 Ind., 1 206 

Kent V. Huskinson _3 B. & P., 233.. 157 

Kentucky Mut. Co v. Jenks 5 Ind., 96 228 

Kenworthy v. Scofield 2 B. &. C, 945 162 

Kerley v. Clay .—A Bibb., 241 87 

Kemeyer V. Newbt 14 Kan., 164 196 

Kerrv. Condy .9 Bush. (Ky.), 372... 281 

Kerrv. Kerr 41N.Y.,272 281 

Kesler V. McConachy 1 Rawle, 335 815, 322 

Ketchum v. Buffalo 14 N. Y., 356 45 

Keyling's Case. 1 Eq. Cas. Abr., 239, pi., 25. 250 

Kibble v. Gough 38 L. T. (N. S.), 204. 157 



liv TABLE OF OASES. 

PAGE. 

Kidder v, Kidder 33 Pa. St., 268 287 

KimbaUv. ^tna Ins. Lo 9 AUeii,540 233 

Kimball V. Rowley.... 24Piok.,347. 21 

Kimball V. Vorman 25 Mich., 310 207 

Kimberly V. P^tchin 19N.Y., 330 165, 168 

Kinoaid's Appeal 66 Pa. St., 411 22, 23 

Kingv. Earbury Fort., 37 107 

King V. Jarman 35 Ark., 190 158 

Kingv. Patterson, etc., R'y Co 29 N. J. Law, 404... 255 

King V. Strong 9 Paige, 105 244 

Kingman V. Spurr 7 Pick., 235.. 48 

Kingsbury v. Collins. 4 Bingh., 209 15 

Kingsfordv. Meny 11 Ex., 577 177 

25 L. J. Ex., 166 177 

Kingsley V. Holbrook.. .45 N. H., 313, 319... 16, 153 

Kingsley V. N. E. Mut.*Fii-e Ins. Co. .8 Cush., 393 232 

Kinna V. Smith 2 Green., Ch. 14 300 

Kinnev. Johnson .60 Barb., 69 139 

Kinne V. Kinne 9 Conn., 102 138 

Kinnebrew V. Kinnebrew 35 Ala., 628. 287 

Kinsey V. Bailey 9 Hun, 420 296 

Kirby V. Johnson 23 Mo., 334 158 

Kirk V. Edows 3 Hare, 509 249 

Kistler V. Hereth 75Ind., 177 214 

Kittredgev. Woods 3 N. H., 503 15 

Klein V. Seibold 89 m., 540 60 

Kleinworthv. Marrittinia 2 App. Cas., 156 305 

Klock V. Walter 70111., 416 294 

Knapp V. Winchester 11 Vt., 351.. 59 

Kneass v. The Schuylkill Bank .4 Wash., 9, 11 73, 80 

Knight V. Bennett 3 Bing., 361 312 

Knight V. Mann ...118 Mass., 443 158 

Knight V. Wall ...Dev. & B. (N. C.) L., 125 246 

Knott V. Morgan 3 Keen, 213 104 

Knowles V. Gas Light Co 19 Wall., 58 281 

Knoxv. Campbell .1 Pa. St., 366 35 

Kohl r. Lindley _39 111., 195 186 

Kohl V. United States 91 U. S Kep. 367.... 4 

Kohne v. Ins. Co. of North America. .1 Wash. (U. S. C. C), 

93 227 



TABLE OF CASES. 



Iv 



PAGE. 

Kraft V. Hurtz 11 Mo., 109 186 

Krebsv. Carlisle Bank 3 Wall. (C. C), 33... 268 

Kribsv. Jones 44Md., 396 204 

Krohnv, Bautz 68Ind.,277 159 

Krulder V. EUison 47 N. Y., 36 169 

L. 

Lackey V. Stouder .3 Ind., 376 188 

Lacy V. Kinnaston .3 Salk., 298 288 

Ladd V. Thomas 12 Ad. & EL, 117 ... 318 

LaGrangev. Ward 11 Ohio, 257 282 

Lagrange V. Ward 11 Ohio, 257 290 

Laidleyv. Bright 17W. Va.,779 284 

Lambv. Crafts 13 Met.. 358. 152 

Lamore V. Frisbie .43Mich., 186 198 

Lamott V. Stenett 1 Harr. & J., 43 330 

Lamphere v. Lowe 3 Neb., 131, 134 295 

Landon V. Emmons 97 Mass., 37 298 

Landreth v. Landreth 23 Fed. Rap., 41 101 

Lane County -v. Oregon 7 Wall., 71 275 

Lanev. Gluckauf 28 CaL, 288 275 

Lane v. King ..8 Wend., 584 16, 17 

Lanm'an v. Lebanon Valley R. E. Co..30 Pa. St. , 43 270 

Larrabee v. Baldwin 35 CaL, 155, 168 110 

Lash V. Hague 1 Web. Pat. Cas., 207. 71 

LasseUv. Eeed 6GreenL,322 20 

Latham v. United States 1 Court CI. , 149 274 

Lauferty V. Wheeler. 11 Abb. N. C, 238... 263 

Laughton v. Atkins ...1 Pick., 435 141 

Laughlinv. Ross 45N. Y.,7;3 13 

" Law of Burial " 4 Bradf. Surr. E., 

403-533_ 33 

Lawrence V. Dana 2 Am. T. R. N. S., 433. 89 

3 Am. L. T. E. N. S.,402. 89 

Lawrence v. French .35 Wend., 443 331 

Lawrencev. Hopkins 13 Johns., 288 218 

Lawrence Manuf. Co. v. Lowell 

Hosiery Mills S7 Am. Rep., 362 97 

129 Mass., 325 97 



Ivi TABLE OF OASES. 

PA(?B. 

Lawrence V. Wright 23 Pick., 128 115 

Lawrence Co. v. Lowell Mills 129 Mass. ,325 99 

Lawson v. Lawson 1 P. Wms., 441 130 

Leake V. Robinson ^Mer.,863, 893 244 

Leev. Biddis 1 Ball., 175 272 

Leev. Blendy 2 Fish., 89 81 

Leev. Kilbum 1 3 Gray, 594 117 

Lee V. Mahoney 9 Iowa, 344 161 

Legal Tender Cases 12 Wall., 457 275 

Leggv. Legg 8 Mass., 99 122 

Leggett V. Hyde 58 N. Y., 272 89 

Leidersdorf V. Flint 8 Biss. C. C, 827 98 

Leigh V. Savidge 14 N. J. Eq., 124.... 142 

Leland v. Medoral 2 Woodf. & M., 92, 105. 307 

Lelandv. Sprague 28Vt., 746 295 

Leland v. The Ship Medora ...2 Woodf. & M., 92.. 804 

Leonard V. Pitney 5 Wend., 80 214 

Leonard V. Scarborough 2 Ga., 73 86 

Lepage V. McNamara 5 Iowa, 124 136 

LeRoy v. Globe. Ins. Co 2 Edw. Oh., 657 46 

Lernedv. Wannemacher 9 Allen, 412 161 

Lesterv. East 49 Ind., 588 144, 165 

Letcher V. Norton 5 111., 575 299 

Lewis V. Greider .49 Barb., 606 201 

Lewis V. Jonesf. ...5 Harris, 226... 20 

Lewis V. Rogers 16 Pa. St., 18 280, 281 

Lewis V. Rosier 1 6 West Va. Rep., 833 7 

Lightburn V. Cooper 1 Dana, 278 207 

Lilliewhite V. Devereaux 15 M. &W., 285 158 

LilUev. Dunbar 63 Wis., 198 153 

Lincon v. Erie Preserving Co 182 Mass. ,129 163 

Lincoln v. Tower 2 McLean, 473 281 

Linderman v. Ingham 36 Ohio St., 1, 9 297 

Linden V. Eldren 49Wis., 305 201 

Lindencau v. Desborough 3 Man & Ry. ,45 283 

Lindsay v. Winona & St. Peter R. R-48 Am. Rep., 228 66 

29 Minn., 411 _ 66 

Linghamv. Eggleston 27 Mich., 334 _ 164 

Linnv. Minor .4 Nev., 462 _ 275 

Linsellv. Bonsor 2 Bing. N. C, 241 218 



TABLE OF CASES. Ivii 

PAGE. 

Linton V. Hart 25 Pa. St., 193 333 

Linton V. Porter 31 III., 107 183 

Lister v. Hodgson Law Rep. , 4 Eq. , 30, 36. 287 

Little V. Gould Blatchf., 165, 363.._ 87 

Livermorev. White .74 Me., 456.: _ 59 

Lobley V. Stocks- 19 Beav., 392 248 

Lockv. Wilson 9 Heisk., 784 218 

lOHeisk.,441 218 

Lockhart v. Van Alstyne 31 Mich., 76 254 

Logan V. La Mesurier 6 Moore, P. C, 116.. 164 

Loganv. Plummer 70 N. C, 388 287 

Longv. Milar 4C. P. D.,450; C. A., 163 

Long V.White 43 Ohio St., 59 154 

Long Dock Co. v. Mallory _12 N. J. Eq., 93...... 303 

Loomisv. Deicker ...1 Daly, 186 217 

Lord Southampton v. Brown 6 Bam. & C, 718 318 

Loring V. Bacon 4 Mass., 575 36 

Lothropv. Stedman 13 Blatchf., 134 269 

Louisiana V. Mayor 109 TJ, S., 285 110 

Love V. Blair 73 Ind.. 381 294 

Lowberv. Connit 36 Wis., 176 163 

Lowell V. Lewis 1 Mass., 183 74, 75 

Lowndes V. Anderson 13 East, y 130 60 

Lowndes V. Stamford 18Q. B., 435 237 

Lowrey V. Craig-- .30 Miss., 19 132 

Lowreyv. Mechaffey • 10 Watts, 387-. 163 

Loydv. Wight. ...^ 20Ga.,578 156 

Lucas V. Dorrien 7 Taunt., 378 '._ 158 

Lucas V. Jefferson Ins. Co 6 Cow., 635 223 

Lucena v. Crawford 3 New Rep., 301 229 

2 Bos. & Pul., N. E., 

300 221 

Lucyv. Bundy j 9N. H., 278 289 

Ljidlam's Estate 1 Harris, 188 241 

Ludwell v. Newman 6Tenn., 458.. 331 

Lukens V. Freiund .37 Kan., 664 185 

Lum V. Robertson 6 Wall.. 277 269 

Lunn V, Thornton 10. B., 379. 147 

Lycoming, etc. , Ins. Co. v. Updegraff-40 Pa. St. , 311 235 

Lyman V. Robinson 14 Allen, 243, 354... , 236 



Iviii TABLE OF CASES. 



PAGE. 



Lynch V. DalzeU .3Bro. P. C, 493 231 

Lynde V. Eowe 13 Allen, 101 17 

M. 

Maberlyv. Sheppard lOBing.,99 157 

Macauleyv. Eobinson 18 La. An., 619 261 

Maotierv. Frith 6 Wend., 103. 146 

Mack V. Mack 3 Hun, 333 ]29 

Mageev. Billingsley 3 Ala., 679 207 

Maguire V. Park 140 Mass., 31 13 

Maher v. Eiley ...17 Cal., 415 205 

Mahoney V. Bland 14Ind., 176 133 

Malone v. Mooring .40 Miss., 347 241 

Mamma V. The Potomac Co 8 Peters, 381, 286 268 

Manv. Man .3Str.,905 246 

MandeU v. Buttles 31 Minn., 391. 307 

TVIanhattan Medicine Co. v. Wood .... 108 U. S. , 318 101 

Mannv. Cook 30 Conn., 178 360 

Manning v.Gasharie.. .27Ind.,399 49 

Manning V. Mitcherson 47 Am. Eep.,764 64 

69 Ga., 447 _ 64 

Manning y. Thessinger 3 Myhie & K., 29 243 

Manny V. Jagger 1 Blatchf., 373 74,75 

Manyv. Sizer 1 Fish., 17 76 

"March V. Freeman_ ..3 Lev., 883 318 

Marine Bank v. Wright ...48 N. Y., 1 166 

Marks v.Eyan. 63 Cal., 107 13 

Jffiarquand v. N. Y. Manuf . Co 17 Johns. ,535 48 

Marriot v. Thompson Willes, 186, 189 384 

Marsh V. Burroughs 1 Wood, 463 256,263 

Marsh V. Puller 18 N. H., 360 136 

March V. Pier 4 Eawle, 373 Ill 

Marsh V. Eouse..L 14 N. Y., 643 158 

Marsh V. Webber 13 Minn., 109 183 

HarshaUv. Crow's Adm'r... 39 Ala., 378 37 

JUarshaUv. Ferguson. 33 Cal , 65 154 

Marshall v. Green 1 C. P. D., 35 153 

Marshall v. Jamison 43 Up. Can. Q. B. , 130 146 

Marstonv. Marston 1 Fost., 491 123 



TABLE OF CASES. 



lix 



PAGE. 

Martin V. Adams 104 Mass., 263 143- 

Martin V. Berry 2 Bankr. Reg , 629.. 121 

Martin V. Berry 37 Cal., 208 121 

Martin V. Broach.... 6Ga..21 318 

Martin V. Hunter 1 Wheat., 304 390 

Martin V. Thompson .68 Cal., 618 66 

45Am.Bep., 668.... 66- 

Martineauv. Kitching L. E., 7Q. B.,436... 164 

Martinettiv. Maguire 1 Deady, 216 90 

Martrickv. Linfield 31 Pick., 335 138- 

Marvin V. Treat 37 Conn., 96 61 

Marxv.Davis ..56 Miss., 745 303 

Maryland v. Railroad Co 33 Wall., 105 275 

Mason V. Dicker .72 N. Y., 598 16a 

Mason v. ConneU lWhart.,381 48- 

Mason V. Decker 73 N. Y., 595, 599... 301,203 

Mason V. Hackett .4Nev., 420 39- 

Mason V. Lothrop 7 Gray, 855 143 

Mason V. Moyers.. 3 Rob. (Va.), 606 15 

Masters V. Masters 1 P. Wms., 434...... 243 

Masterton v Mayor of Brooklyn .7 Hill, 62 205 

Mathews V. Durgee 17 Abb. Pr., 356...., 282' 

vatter of the Empire Bank 18N. Y.,199 367 

Matter of Forman _54Barb., 374 141 

Matter of Long Island E. E. Co 19 Wend., 37 360' 

33 Am. Dec. ,439 260 

Matter of Swezy ..62 How., 315 101,102 

Matterson V. Holt .45 Vt.,386. 289 

Matthews V. Albert 24 Md., 537 267 

Matthews V. Dare 30 Md., 348 _ 19& 

Matthews v. Skates 1 Fish., 603 _ 76' 

Matthewsonv. Stockdale 13 Ves., 370 89 

Maxwell V. Brown.. 39 Me., 98 156 

Maxwell V.Lee 27 N. W. Eep., 196.. 184 

MaxweUv. McGee 13Cush., 137 376 

Mayv. Estin 2 Post., 414, 433 293 

May V.Ward 134 Mass., 127 152, 163 

Mayfleld v. Wadsley 3 B. &G., 357 154 

Mayor of Berwick v. Oswald 1 El. & B., 395 386 

Mayor of N. Y. v. Colgate 3 Duer, 1 318 

13N. Y., 140 818 



Ix 



TABLE OF CASES. 



PAGE. 

Mayov. Fletcher 14 Pick., 525 17 

Mayrauntv. Davis 1 Desaus., 203 242 

McAvoy V. Medina 11 Allen, 548 60 

McCaffrey V. "Woodin 65N. Y.,459 148 

McCallv. Lenox 9 Serg. &E.,303.... 16, 17 

McCallav. Bullock 2 Bibb., 308 295 

McCartee v. Orph. Asy. See _9 Cow., 437 45 

McCarty v. Blevina. .5 Yefg., 195 148 

McChing V. Kelley 31 Iowa, 508 184 

McClintook v. Graham 3 McCord (S. C), 553 12 

McClintock's Appeal .71 Pa. St. , 365 153 

McCombs V. McKennan 2 Watts & S., 219 202 

McConnell V. People .84111., 583 803 

McCord V. Ohio & Miss. R. R. Co 13 Ind., 220 257 

McCormick V. Seymour .16 How., 480 77 

2Blatchf.,240 77 

19 How., 96 77 

McCormick V. Talcott .20 How., 409 78 

McCounv.TheN. Y. 0. &.H.R.R. Co-50 N. Y., 176 110 

McCullochv. Maryland 4 Wheat., 316,424... 43 

McCurdyv. Myers.. .44 Pa. St., 535 .. 271 

McCurtie V. Stevens 13 Wend., 527 287 

McEUery v. Flanagan 1 Har. & G., 308 833 

McElroy V. Buck 35Mich.,434. 163 

McElroyv. Leery _61 Md., 397 163 

McElroy v. Lerey ..61 Md., 389 191 

48 Am. Rep., 110 191 

McBwen v. Morey 60 Bl., 33 149 

McFarlandv. Newman 9 Watts, 55 183 

McGuire V. Brannan ^27 Cal., 358 _ 297 

Mclntyre V. Kennedy 29 Pa. St., 448 196 

Mclntyre v. Preston 5 Gilm. (111.), 48 239 

Mclver V. Estabrook 134 Mass., 550 18 

McKenney V. Haines 63 Me., 74 205 

McKenzie v. Kittridge 24 U. C. C. P., 1 265 

MoKeonv. Whitney 3Denio,452 '.., 317 

TMcKinley v. MiUer 19 Mich., 142, 151... 287 

McKinnon v. Thompson 8 Johns. Ch., 307 248 

McKinstry v. Conly _12 Ala., 678 294 

McKnightv. Gordon 13 Rich. Eq., 221 292 



TABLE OF CASES. Ixi 

PAGH. 

McLeodv. Bernhold 82 Ark., 671 297 

McMiohael V. Carlyle 53 Wis., 504 214 

McMuUen v. Eiley 6 Gray, 506 ,.„ 155 

McPhersonv. Watt L. R. 3 App. Cas , 354 173 

McRea v. Central Nat. Bank of Troy.66 N. Y., 489 11 

McVaughters V. Elder 2 Brev. (S. C), 307.. 115 

Mean's Appeal 85 Pa. St., 75 ' 263 

Mechanics, etc., Bank v. Farmers, etc., 

Bank 60 N. Y., 40 60 

Medina V. Stoughton 1 Ld. Raym., 593...' 182 

Mehlbery V. Fisher 24 Wis., 607 195 

Meigs' Appeal... 63 Pa. St., 28 13 

Meinckev. Folk _55 Wis., 427 151 

Merchant v. Merchant 2 Bradf . Surr. Rep. , 432. 130, 1 33 

Merchants' Bank V. Bank of Columbia.5 Wheat., 326 44 

Merchants' Savings, etc., Co. v. Good- 
rich .75 lU.. 554 225 

Merrimao Mining Co. v. Bagley 14 Mich., 501 265 

Merrimac Mining Co. v. Levy 54 Pa. St., 227 256, 265 

Merriamv. Field 24 Wis., 640 184 

M errick v. Germania Fire Ins. Co 54 Pa. St. , 277 223 

MerriUv. Bartlett. 1 6 Pick., 46 .;. 38 

MerriU V. Hunnewell 13 Pick., 213 168 

Merriman V. Chapman ...32 Conn., 146 184 

Merritv. Johnson 7 Johns., 473. 68, 69 

Mesner v. Granger 4 Gilm., 69 184 

Messerv. Woodman 23 N. H., 181, 183... 157, 158 

Methudy V. Ross 10 Mo. App., 101,106 227 

Metropolitan Bank v. Van Dy ck 27 N. Y. , 400 274 

Meyer v. Wheeler ..65 Iowa, 390 205 

Michenerv. Dale 23 Penn. St., 59 130 

Mich. Cent. R. E. Co. v. Phillips 60 111., 190 166 

Middlebrook V. Corwin ..15 Wend., 169 20 

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

R. R. Co 115 Mass., 347 S70 

Middlesex Co. v. Osgood .4 Gray, 429 186 

■ Mildam Foundry v. Hovey .21 Pick., 417 277 

Miles V. Bough 3 Q. B., 845 259 

Miles V. Conn. Mut. Life Ins. Co 8 Gray, 580 234 

Miles V. Miller 12 Bush., 134 204 



Ixii 



TABLE OF CASES. 



PAGE. 

Miles V. Roberts 34 N. H., 3.')3 18& 

Millar V. Taylor 4 Burr., 23u3 83 

Millens v. Smith 1 Drew & S. (Ireland, Ch.), 304 241 

MiUer v. Barkeloo 8 Ark., 818 27» 

Miller V. Fitzgibbons 9 Daly, 505 151 

Miller V. Lumsden 16111., 161 195 

Miller v. Eeigne Ji HiU (S. C), 593.... 115 

Miller V. The Bebecca Bee Adm., 151 BOr) 

Miller V. Young 38111., 354 183 

Millington V. Fox 3 Mylne & C, 833-.. 104 

Mills V. Stewart 41 N. Y., 384 261 

Miner V. Bradley 33 Pick., 457 289 

Miner V. Judson 2 Hun, 441... 292 

Minter V. Wells .Webs. Pat Cas., 139. 79 

Mires V. Solesby 2 Mod., 243 165 

Mitchell V. Beckman 64 Cal., 117 856, 257 

Mitchell V. Gile 13 N. H.,890 142 

Mitchell V. Lycoming Ins. Co. 51 Pa. St. , 403 238 

Mitchell V. Selman 5 Md., 276 21T 

Mitchell V. Winslow .3 Story, 630.. 148 

Mitchell V. Zimmerman 4 Tex., 75 175 

Mixer V. Howarth 31 Pick., 305 151 

Mixey V. Cook 31 Me., 340 166- 

Moale V. Buchanan 11 Gill. & J., 323... 161 

Mobile Mut. Ins. Co. v. Cullum .49 Ala., 558 257 

Moline Wagon Co. v. Rummell 2 McCrary, 301 295 

Mondellv. Steele 8M. &W., 858 182 

Monroe V. Hamilton 6 Ala., 226 295 

Montague v. Montague 15 Beav., 565 248 

Monteflori V. Montefiori Wm. Bl., 363 ISO 

Montgomery v. Lampton 9 Met., Ky., 519 219 

Moody V. Blake 117 Mass., 33, 26 60- 

Moody v.Browe 34Me., 107 204 

Moody V.Brown ..84Me., 107 _ 168 

Moore V. Bank of Columbia 6 Pet., 86 217 

Moore v. Bank of Commerce 52 Mo., 377 46 

Moore V. Darton 4DeG. &Sur., 517.. 133 

Moore V. Hyman 13 Ired., 273 217 

Moore V. Murdock 26 Cal., 514 180,392 

Morehouse v. Comstock 43 Wis. ,624, 626 182, 185- 



TABLE OF CASES. Lxiii 

PAGE. 

Morelandv, Myall...-. 14 Bush, 470 154 

Morgan V, Morgan 65 Ga., 495 15 

Morgan V. Richardson ^ 13 Allen, 410.1 197 

Morgan V. Rogers 19 Fed. Rep., 696 101 

MorreUv. Frith 3 M. &"W.,405 216 

Morris V. French 106 Mass., 326 154 

Morris v. Thomson McCart. (N. J.), Ch., 493 241 

Morris V. Tillson 81 lU., 607 302 

Morrison V. Lods 39 Cal., 385 175 

Morrison V. Lovejoy 6 Minn., 224 206 

Morrison V. Semple 6 Binn. Pa., 93 1 

Morrow V. Tumey _35 Ala.,131 293, 299 

Morse V. Bellows ..7N. H., 549 288 

Morsev. Sherman 106 Mass. , 430, 432.. 186 

Morse v. Tappan .3 Gray, 411 110 

Morton V. Dean 13 Met., 388 162 

Morton v. Onion ..45 Vt., 145 141 

Morton V, Tibbetts 15 Q. B., 428 157 

19L. J. Q. B, 382... 157 

Moses V. Meed .5 Denio, 617 185 

IDenio, 378 185 

Mosley v. Crocket .9 Rich. (S. C), Eq. , 339 292 

Moss V. Sweet 16 Q. B., 493 145 

Mossman V. Forrest , 27Ind., 233 302 

Moulton Y. Norton, 5 Barb., 286 311 

Moultrie v. Jennings 2 McNuU (S C), 508. 127 

Mowry V. Wood _ 12 Wis., 413 293, 299 

Muller V. Poudir 55 N. Y.. 325, 337 ... 192 

MuUerv. Eno 14 N. Y., 597 207 

Mullikenv. Millar 12 R. I., 296 178 

Mumford V. Nicoll .20 Johns., 611 38 

Murray v. Bogart 14 Johns., 318 48 

Murray V. Lardner 2 Wall., 710 61 

Mut. Ins. Co. V. Dale 18 Md., 26 233 

Myers V. Kaufman 37 Ga., 600.... 275 

Mygatt V. N. Y. Prot. lus. Co 21 N. Y., 53 237 

Myrickv. Dame 9 Cush,, 248 288 



Ixiv TABLE OP OASES. 



PAGE. 



N, 

Nathan V. Whitlook 9 Paige, 152 263 

National Bank v. Landon 45 N. Y., 410 .-. 49 

National Bank, etc. , v. Landon .45 N. Y., 410, 414 264 

National Filtering Oil Co. v. Citizens 

Ins. Co 106K. Y.,535 205 

National Citizens' Bank v. Howard... 3 How. Pr. Rep. (N. 

S), 513.. 276 

Naugatuok Cutlery Co. v. Babcock ... 32 Hun, 481 177 

Needham V. Hill 137 Mass., 131 36 

Needham's Case .8 Co., 135a 351 

Neideferv. Cliastain 71 Ind., 363 175 

Neilerv. Kelley 69 Pa. St., 403, 407 .. 354 

Nelson V. McGiffert. .3 Barb. Ch., 158 140 

Nelson V. Pub. Adm'r 2 Bradf. Surr., 310.. 140 

NeUisv. Lothrop 33 Wend., 131 333 

Nepton V. Leaton 71 Mo., 358 381 

Nettleton V. Sikes 8 Met., 34 153 

Neufville V. Thomson 3Edw. Ch., 93 139 

New Castle Fire Ins. Co. v. McMorran 3 Dow. P. C, 255 ... 232 

Newcomb V. Peck .17 Vt, 302 381 

New England Mut. Fire Ins. Co. v. 

Belknap 9 Gush., 140 338 

New England Mut. Fire Ins. Co. v. 

Butler .34Me., 351 238 

New England, etc., Ins. Co. v. Robin- 
son 35 Ind., 536 327 

New Haven Pat. Rolling Spring Co. v. 

Farren 51 Conn., 334 103 

NewhaUv. Vargas 13 Me., 93, 193 191, 192 

Newman v. Alvord ..51 N. Y., 189 97 

49 Barb., 588 102 

Newman V. Morris - .4 Har. & McH., 221_ 150 

Newport V. Cook. .2 Bradf. Surr., 332.. 244 

New York Mar. Ins. Co. v. Prot. Ins. 

Co 1 Story (C.C.Rep.), 458 233 

Hew York & H. R. Co. v. Hawes 56 N. Y., 175 59 

Newry, etc., R'y Co. v. Moss 14 Beav., 64 367 

N. H. Sav. Bankv. Downing 6 N. H., 187 44 

Niblp V. North Am. Ins. Co..., 1 Sandf., 551 230 



TABLE OF CASES. IxV 

PAGE. 

Nicol V. Am. Ins. Co 3 Wood & M. (TJ. S. C ), 589 233 

Nichol V. Stewart 36 Ark.-, 612 395 

Nicholasv. Adams ^ Whart., 33 130, 131, 134 

Nichols V. Moore 100 Mass., 377 303 

Nicholson V. Chapman ^ H, Bl., 254 61 

Nixon V. Brown 57 N. H., 34 60 

Nixon V. Nixon 31 Ohio St., 114 203 

N; & N. W. R. R. Co. V. Jones 2 Cold., 584 181 

NoakesvMorey 30 Ind., 103 159 

Norris V. Blair 39 Ind., 90 163 

Norrisv. Harrison. 3 Mad. Ch. R.,268... 333 

North V. Forrest 15 Conn., 400 153 

Northwestern Ins. Co. v. Atkins 3 Bush. (Ky.), 3S8... 235 

North Western Ins. Co. v. Phoenix Oil 

& Candle Co.- 1 Pa. St., 449 235 

Northwestern Ins. Co. v. Seward 36 N. Y., 139 304 

Northwood v. Rennic 3 Ont. Ap. , 37 (1878), 207 

Norwood V. Cobb 24 Tex., 551 281 

N. Y. Cab Co. v. Mooney 15 Abb. N. C, 152 .. 102 

o. 

Oakmanv. Rogers 120 Mass , 214 163 

Oaks V. Tiirquand L. R. H. L., 325 177 

Obert V. Hammel -..3Harr., 73 387 

O'Brien V. Young .95N.Y., 438 110 

O'Donnel V. Seybert 13 Serg. &. R., 57... 315 

O'Donnellv. Sweeney...: 5 Ala., 467 180 

Ogdenv. Saunders .13 Wheat., 213 118, 120 

Ogilviev. HuU 5 Hill, 53 - 321 

O'Hearv. Goesbriand 33 Vt., 593 21 

Ohio Mut. Ins. Co. v. Marietta Woolen 

Factory .3 Ohio St., N.S., 348. 237 

Old Colony R. R. Co. v. Sears 6 Gray, 25 163 

Oliphantv. Baker ...5 Denio, 379 164 

Oliver V. OUver 11 C. B., N. S., 139.. 94 

Olmsteadv. Niles .7 N. H. 522 153 

O'Neil V. Crane 67 Mo., 350 163 

O'NeiU V. N. Y., etc. Co 3 Nev., 141 151 

O'ReiUyv. Bard 105 Pa. St., 569 262 

E 



Ixvi TABLE OF CASES. 

PAGE. 

O'Reilly v. Morse 15 How., 63 7S 

Orrv. Kaines ^ Ves. Sen., 193 250 

Osborne V. Bank of U. S 9 Wheat., 738 43-3 

Osborne V. Barge 35 Fed. Rep., 93 41 

Osterhout V. Roberts 8 Cow., 43 HI, 291 

Ottoman v. Woolen Mills Co. v. 

Hawley .44 Iowa, 57./ 12 

Cutwater V. Dodge 6 Wend., 397 _ 156 

Owenson V. Morse 7 T. &. R., 50 195 

P. 

Packard v. Louisa _ 2 Woodb. & M., 49.. 307 

Packard v. Kingman 11 Iowa, 219 302 

Pacific R. R. Co. v. Lincoln Co. 1 Dill. C. C. R., 314. 43 

Paddonv. Taylor • .44N. Y.,371 177 

Pagev. Esty 54 Me., 319 _ 282 

Pagev. Ferry 1 Fish., 298 75 

Page V. Foster 7 N. H., 392. 301 

Pagev. Symunds 63N. H., 17... 23 

Pagev. Trufant 2 Mass., 159, 162 287 

Paige V. FuUerton Woolen Co 37 Vt., 485 236 

Painev. Parsons 14 Pick., 318 249 

Palmer V, DeWitt.. .47 N. Y., 532 84, 91, 95, 96 

47N.Y.,538 87 

Palmer V. Medina Ins. Co 30 Ohio, 537 44 

Palmer V. Palmer _55Mich.,393 113 

Palmer v. Phoenix Mut. Ins. Co 84 N. Y., 63 197 

Palmer V. Shirley _16 Ind., 380 293 

Parham V. Thompson ,..3 J. J. Marsh. (Ky.), 206. , 17 

Parker V. Fergus 48 lU., 437 39 

Parker V. Ferguson 1 Blatchf., 407 74 

Parker V. Marston .27 Me., 196 _ 133 

Parkerv. Merchant .' 1 Phil. (N. C), 355... 272 

Parker v. Staniland.. 11 East, 362, 365 1.53, 154 

Parkerv. StUes ....15 How., 44 76 

Parker V. Wallis 5E. &B.,21 157 

Parkhurst V. Kinsman 1 Blatchf., 488 74 

Parmleev. Adolph 28 Ohio St., 10 175 

Parshallv. Eggert 53 Barb., 367 291,299 



TABLE OF OASES. Lxvii 

PAQB. 

Parsons V. Camp 11 Conn., 525 20 

Parsons V. Sutton 66N. Y., 92 204 

Parton V. Prang 3 Cliff., 537, 556 87 

Partridge V. Badger 25 Barb., 146 — 44 

Partridge v. First, etc., Ch 39 Md., 631 23 

Partridge v. Menck 1 How. App. Cas. , 547. 100, 108 

Partridge v. Partridge Cas. 1 Talb., 226 248 

Pasley V. Freeman -3 T. R., 51 182 

Passaic Mfg. Co. v. Hoffman 3 Daly, 495 151 

Passenger v. Thorburn 34 N. Y., 634... 206 

PatcUnev. Pierce 12 Wend., 61, 63 298 

Patten's Appeal .45 Pa. St., 151 191 

Pattison's Appeal 61 Pa. St., 29, 294... 16, 158 

Patton V. The Randolph ..GUp., 457 805 

Pawsonv. Watson Cowp.,785 232 

Paye V. Paye 2 P. Wms., 489 246 

Payne V. Cave 3 T. R., 148 145 

Payson V. Stoever 2 Dill., 427 263 

Peabody V. Speyers 56 N. Y., 230 ' 152 

Pearson V. Seay 35 Ala., 612 301 

Pease V. Gloahec L. R., IP. C, 220... 177 

Pease V. Smith 61 N. Y., 477........ 60 

Peay V. Barber ..1 Hill Ch. (S. C), 95. 244 

Peckv. Burr ....10 N. Y., 294 180 

Peck V. Vandemark 99 N. Y., 29. 161 

Peek V. North Staffordshire R. R. Co..H. L. C. ,, 472-569 ... 161 

Peltier V. Coinns 8 Wend., 459.. 163 

Pence v. Langdon ...99 U. S., 578 289 

Pendergast v. Turton 1 Young & Coll. (N. R.), 98 106 

1 Young &C. Ch.,97 256 

Pendleton V. Dyett 4 Cow., 58, 581 321, 322 

8 Cow., 727. 321 

Penfleld v. Thayer 2 E. D. Smith, 305.. 125 

Penhallow V. Dwight 7 Mass., 34 16, 18 

Penn. Ins. Co. V. Murphy 5 Miim., 36 48 

Pennunan v. Hartshorn 18 Mass., 87 163 

Pennock V. Coe 28 How., 117. 148 

Pennywitv. Foote 27 Ohio St., 600 281 

Penroyer v. Shelden .4 Blatchf., 816 186 

People V. Anderson ..14 Johns., 294 59 



Ixviii TABLE OF OASES. 

PAGE. 

People V. Assessors, etc 1 Hill, 616, 630 43, 43 

Peiople V. Cogdell ..1 Hill, 84 59 

People V. Gordon 83 111., 435 214 

People V. Johnson 14111., 343 136 

People V. McGarren 17 Wend., 460 60 

People V. O'Brien. IIIN. Y.,1 269 

People V. Peacock .98111., 172. 263 

People V. Phoenix Bank 7 Bosw., 20 281 

People V, Buggies 3 Johns., 390 91 

People V. Smith _ 51 Barb., 360 282 

Peoria Marine & Fire Ins. Co. v. Lewis_18 111. ,553 233 

Peoria Ins. Co. v. WhitehUl 25 lU.. 466 285 

Perceval V. Phipps .2Ves. &B.,19, 24-. 92,93 

Perkins V. Eckert 55 Cal., 400 187 

Perrin V. Granger. 30 Vt, 595 260 

Perrin V. Terrell SON. J. L., 454 207 

Perrins V. Little 1 Green., 348 210 

Perry V. CaiT 44 N. H., 122 20 

Perry V. Mt. Hope Iron Co 15 R. I., 66 _ 146 

Perry V.Smith 33 Vt., 801 197 

Perry V. Truefitt .6 Beav., 66 100 

Petteev. Orser 18 How. Pr. R., 443. 41 

Peters V. Newkirk 6 Cow., 103 812 

Peters V. Peters .43N. J. Eq., 140. l.. 34 

Pettis V. Ray 13 R. I., 344 285 

Peytoe'sCase - 9 Rep., 79b _ 285 

Peyton v. Smith Dev. & B (N. C), L., 335 36 

Pflstnerv. Bird 43 Mich., 14 165 

Phelps V. Staiings .6 N. H., .505 163 

Phila. & Trenton R. Co. v. Stimpson..l4Pete., 458 79 

Philadelphia Ins. Co. v. Washington 

Ins. Co -23 Pa. St., 250 222 

Philips V. Ocumulgee Mills 55 Ga. , 634 168 

Philips V. Stevens 16 Mass., 340 830 

Phillips V. Bistolli 2 B. & C, 511 156 

Phillips V. BuUard-- 58 Ga., 256 196 

Phillips V. Winslow 18 B. Mon., 431 148 

Phipps V. Buckman 30 Pa'. St. , 403 175 

Phipps V. McFarlane 3 Minn., 109 151 

Phoenix Ins. Co. v. Allen 11 Mich., 501 194,195 



TABLE OF CASES. Ixix 

PAGE. 

Phoenix, etc., Co. v. Badger .67 K. Y., 294 263 

Picard v. McCormick 1 Mich., 68 143 

Pickering V. BardweU 21 Wis., 562 202 

Pickering V. Langdon 22 Me., 413 „ 136 

Pickettv. King- 34Barb.,192 218 

Pierce V. Corf. X. E. 9 & Q B., 210. 163 

Pierce V. George .108 Mass., 78 296 

Pierce v. Hasbrouck 49 111., 23 297 

Pierce t. Proprietors, etc 10 E. I., 227 23 

Pierce V. Wright 33 Tex., 631 '.. 287 

Piersonv. Post 3 Cai. Cas., 175 65 

Pierson v. Catlin 18 Vt.,77 290 

Pike V. Nicholas .20 L. T. N. S., 906... 89 

Pmkham v. Mattox 53 N. H., 66 157 

Pinnel'sCase .- 5 Eep., 117 _ 286 

Pitts V. Beckett 13 M. &W., 743 162 

Pitts V. Mangum 2 Bailey, 588 128 

Pitts V. Wemple 6 McLean, 558 80, 81 

Pitts V. Whitman 2Story, 609 81 

Pittsburg & Cornellsville R. R. Co. v. 

Clark .29Pa. St.. 146 258 

, Pittsburgh, etc., R. E. Co. v. County 

of Allegheny 63 Pa. St., 126 254 

Pittsburg, etc., R. R. Co. v. Heck 50Ind., 303 204 

Planters' Bank v. Andrews ..8 Port., 404 44 

Pleasants V. Pendleton 6 Band., 473 164 

Plimpton V. Bigelow .93 N. Y., 592, 599... 254 

Plumer v. Plumer 30 N. H., 558 20 

Poolev. Middleton. .29Beav.,646 257 

Popev. Curl 2 Atk., 342 92, 94 

Pophamv. Cole ..66N. Y.,69 100, 103 

• Poplett V. Stockdale Ryan&M. N. P., 837. 170 

Port Carbon Iron Co. v. Groves 68 Pa. St. , 149 .184 

Portage Coimty Mut. Ins. Co. v. West.6 Ohio, 599 _ 235 

Porter V. Barrow 3 La. An., 140 204 

Porter V. Nelson .4 N. H., 130 294 

Porter V. Parmly 42 How. Pr., 445 291 

Post V. Hampshire Mut. Ins. Co 12 Mass., 555 234 

Postell V. SkirUng Desaus, (S. C.) Eq., 158 35 

Pottery. CromweU 40 N. Y,, 287. 11 



IXX TABLE OF OASES. 

PAGE. 

Potter V. Holland .4Blatchf., 210 210 

Pottery. Neal .62 How. Pr. R., 158. 36 

Potts V. New Jersey Arms, etc., Co. ..17 N. J. Eq., 395 11 

Powderv. Rhea 32Ark., 435..." 295 

Powder Co.. V. Burkhart 97 U. S., 110 144 

PoweUv. Barham 4A. &E.,473 182 

PoweU V. McAshan 28 Mo., 70 154 

Powell V. North Mo. R. R. Co 42 Mo., 63 269 

Powell V. Waters 8Cow.,669 _ 209 

Pratt V. Huggins 29 Barb., 277 218 

Pratt V. Railroad Co 21 N. Y., 305 226 

Pray v. MitcheU 69 Me., 430 152 

Prentiss V. Euss 16 Me., 30 289 

Presb. Ch. V. Andrus 1 Zabr., 325 21 

Prescottv. Locke 51 N. H., 94 151 

Preacott V. Wells 3Nev.,82 8, 10 

Price V. Pickett _21 Ala., 741, 15 

Price V. Price 16 M. & W., 231 194, 195 

Price& Brown'sCase 3 DeGex&Sm., 146. 267 

Prince V. Hazleton 20 Johns., 502 189 

Prince Albert v. Strange .2 De G. & Sm., 652.. 84 

Prince v. Cobb 1 63 Me., 200 60 

Prindellv. Grooms 18 B. Mon., 501 295 

Pringle V. Phillips 6 Sandf., 157 177 

Pritchardv. Howell 1 Wis., 131 217 

Protection Ins. Co. v. Harmer 2 Ohio St., 452 233 

Providence Bank v. Billings 4 Pet. ,562 43 

Provincial Ins. Co. v. Shaw. U. C. D. B., 533 265 

Public Administrator V. Hughes 1 Bradf . Surr. Rep., 

125,128,129 115 

Pulciverv. Page .' 32 Me., 404 68 

Pullenv. Palmer 3 Salk., 207 313 

Pullman V. Upton 96 if. S., 328 267 

Pulte V. Perby 5 McLean, 328 84 

Purdy V. Austin 3 Wend., 187 217 

Purney v. Piercy 40 Md., 212 153 

Purse V. Snaplin 1 Atk., 414 241 

Putnam v. Lewis 8 Johns, 389 194 

Putnam V. The PoUy .Bee Adm., 157 305 

Putnam V. Wiley 8 Johns., 432 67 

Putnam v. Wise ' 1 Hill, 234 43 



TABLE OF CASES. Ixxi 

PAGE. 

Q. 

Quincy v. Tilton 5 Me., 377 289 

Quiver v. Marblehead Ins. Co 10 Mass., 476 46 

R. 

Eacev. Mississippi 25Miss.,54 383 

Raev. Hulbert 17 lU. , 572, 580 110 

Ragland v. Justices 10 Ga., 65 300 

Railroad Company v. Howard 7 Wall. , 393 254 

Ramsell V. Tewksbury 78 Me., 197 297 

Randv. Hubbell 115 Mass., 461, 474 .. 255 

Randv. White Mountains R. R. Co.-.40N. H.,79 308, 260 

Randall v. Johnson 18 R. I., 338 41 

Randonv. Barton .4 Tex., 389 305 

Rankin V. Barnes 5 Bush. (Ky.), 20 381 

Raphael V. The Bank of England 17 C. B., 161 60 

Rasorv. Quails 4Blackf., 386 17 

Rawlingsv. Hunt 90 N. C, 370 148 

Raymond V. Commissioners, etc 5 Ohio, 305 „ 45 

Raymonds. Merchant.. .J 3 Cow., 147, 150 195 

Readv. Lanahan 47 N. Y. Super. Ct. Rep., 375 41 

Redfieldv. Tegg 38 N. Y., 312 143 

Reedv. Cutter ...1 Story, 590 74, 75 

Reeder V. Sager 70 Ind., 180 16 

Reed v. Shaw 1 Blackf., 345 288 

Reedv. Spaulding ...42 N. H., 114 136 

Reed V. Upton 10 Pick.. 533.. 166, 167 

Redgrave V. Hurd 20 Ch. D., 1,13 174 

Redman V. ^tna Ins. Co 49 Wis., 438. 181 

Rees V. Peltzer 75 HI., 475 84 

Reeve V. Whitmo re .4 DeGr. J. & S., 1 148 

Reeves v. MoKenzie .1 Bailey, 497, 500 811, 315 

Remick V. Sandford 120 Mass., 809 156 

Rensselaer, etc., R. R. Co. v. WetseL.21 Barb., 56 360 

Rentch V.Long 27 Md., 188 151 

Re Pontius 36 Hun, 333 269 

Rex V. Arkwright .Webs. Pat. Cas., 71-73 80 

Rexv. Bayley 1 Car. & P., 435 .- 388 

Eexv. Collector 2M. &S.,236. .3S 



IxXll TABLE OP OASES, 

PAGE 

Rexv. Mucklow lEyan&M., 160.... 59 

Reynolds v. Kortright Beav., 417, 427 244 

Rhoads V. Jones _93Ind., 338 284 

Ricev. Barnard , 29Vt., 479 40 

Rice V. Churchill 2 Den., 145' 186 

Ricev. Rice 4 Pick., 349... 801 

Rice, Robertson v. Montgomery Rice, 87 291 

Rich V. Lippincott 3Fish., 1..1 76 

Rich V. Milk.. 20 Barb., 616. 303 

Richard v. Bankes 13 East, 20 273 

Richard V. Borden. 43 Miss., 71 13 

Richards V. Humphreys .15 Pick., 133,135 248 

Richards V. Killam 10 Mass., 243, 247... 318 

Richards v. Richards 2 Bam. & AdoL, 447 123 

Richardson V. Copeland , 6 Gray, 536 296 

Richardson V. Dutch Ch _33Barb., 42 23 

Richmond v. Dubuque, etc. , R. R. Co.40 Iowa, 264 206 

43 Iowa, 423 206 

Ricketts v. Dorrell 55Ind., 470 66 

Rickey V. Tenbroeck 63 Mo., 587. 202 

Riddlev. Driver 12 Ala., 590 70 

Riddleberger v. Hartford Ins. Co 6 Wall., 386 236 

7 Wall.. 386 236 

Ridenourv. Mayo .40 Ohio St., 9. 264 

Rider V. Wager 3 P. Wms., 329, 330. 248 

Ridges V. Morrison 1 Br. Cr. Cas.; 389... 243 

Ridgway'v. Ingraham 50 Ind., 148 161 

Ridgway V. Wharton 6 H. L. C, 338, 264, 

368 163, 336 

Riggs V. Magruder 2CranchC. C, 143.. 153 

Riley v, Farnsworth .116 Mass., 333 163 

Ringv. Kelley 10 Mo. App., 411 287 

Ripley v. Mtaa, Fire Ins. Co 30 N. Y. , 136 231 

Ripley v. Waterworth _7 Ves., 425 40 

Rishtonv, Whatmore 8 Ch. D.,467 162 

Bobbins V. Ayers 10 Mo., 538 _ 284 

Robbinsv. Butler 24 lU., 887 47 

Robbins V. Clay 83 Me., 132 270 

Robbinsv. Farley 2 Strobh., 348 218 

Roberts V. Beatty 2 Pen. & Watts, 63.. 197 



TABLE OF CASES. Ixxili 

PAGE. 

Roberts V. Caldwell 5 Dana, 513 281 

Robertson V. Berry 50 Md., 591 103 

Robertson V. Bullions ....^11 N. Y., 243 43 

Robertson V. Smith 18 Johns., 459 88 

Robiev. Sedgwick 35Barb.,319 45 

Robinson V. Bliss 12 Mass., 438 302 

Robinson V. Campbell _8Mo., 365 297 

Robinson V. Cropsey 3 Edw. Ch., 138 801 

Robinson v. Fitch _26 Ohio St., 659 297 

Robinson V. Georges Ins. Co' .17 Me., 131 237 

Robinson V. Hoffman 4 Bing., 663 313 

Robinson V. Lane 19 Ga., 337 269 

Robinson V. McDonnel 5 M. &S.,328 148 

RockviUe, etc., Turnpike Co. v. Max- 

weU ^ Cranch C. C, 45U 261 

Rodgers v. Jones 129 Mass., 423 158 

Rodman V. Thalheimer 7 Pa. St., 233 173 

Rodwell V. PhUlips 9 M. & "W„ 503 154 

Rogers V. Cox 96 Ind., 157 154 

Rogers V. Crow .40 Miss., 91 32 

Rogers V. Moore 1 Rice, 60 Ill 

Rogers V. PhiUips .40N. Y., 519. _ 156 

. Rogersv. Thomas 20 Conn., 53 191 

Rogers V. Van Hoesen _13 Johns., 221 187 

Rogersv. Williams .-- 5 Mo., 335 17 

Rootv. Ball 4 McLean, 177 77 

Rosev. Bozeman 41 Ala., 678 204, 205 

Itosenbaum V. Weeden 18 Gratt., 785 201 

Roseveltv. Brown lllSr.Y., 148 267 

Ross' Appeal 9 Pa. St., 491 154 

RossT. Bank, etc 19 Pac. Rep., 343 261 

Rosseau v. City of Troy .49 How. Pr. R., 492.. 34 

Rossiterv. Miller 46 L. J. Ch., 328 162 

5 Ch. D., 648, C. A.. 163 

Rowley T. Bigelow 12 Pick., 312 191 

Rowley V. Stoddard 7 Johns., 207 288 

Royal Baking Powder Co. v. Sherrell.93 N. Y. , 331 99 

Royal Bank of India's Case -L. R. 7 Eq., 91 267 

Royalton v. Royalton, etc., Co 14 Vt., 311 205 

Rucher v. Conyngham 3 Pet. Adm , 295 304 



Ixxiv TABLE OF OASES. 

TAQE. 

Euokerv. Donovan 13 Kan., 351 191 

Euggv. Minett 11 East, 300 164 

Eunneford Chemical Works v. Mutli 35 Fed. Eep., 524.... 98 

EusseUv. Carrington 43N. Y., 118 165 

s. c. , 1 Am. Eep. , 498 165 
Eutland & BurUngton R. E. Co. v. 

ThraU 35 Vt., 536 359,360 

Eyan V. Goodwin 3 Sum., 514, 518 73 

Eyan V.Ward .48 N. Y., 304_ 286 

Eyder, V. Neitge 31 Minn., 70 185 

Eynderav. Crane 3 Daly, 339 129 

Eyno V. Darby 20 N. J. Eq., 231.... 180 



Sabine V. Bank of Woodstock 21 Vt., 353 46 

Sackett V. Andross 5 HUl, 327 118 

Saddler's Co. v. Babcock 2 Atk., 554, 534 321, 331 

Safford v. McDonough 120 Mass., 390 158 

Sainsbury V. Matthews 4M & W., 434 158 

Saladinv. MitcheU.... 45ni.,85 201 

Sale V. Lambert.. 18 Eq. Rep., 1 163 

Salsbury V. Parsons -43Hun,13... 18 

Salt Lake City Nat. Bank v. Hen- 

drickson 40 N. J. Law, 52 263 

Sampson V. Graham 96 Pa. St., 405 8, 9 

Samuel V. Berger 4 Abb. Pr. Eep., 88.. 100, 102 

Sanborn V. Goodhue 38 N. H.,48 129 

Sanders V. Logan 3 Fish., 167 _ 77 

Sanderson v. Caldwell 2 Aiken, 195 111 

•Sands V. Hill 42 JBarb., 65. 238 

Sanger V. Upton 91 U. S., 56 258 

Sargent V. Franklin Ins. Co 8 Pick., 90 255 

:Sarlv. Bourdillon 26 L. J.C. P., 78 163 

1 C. B. (n. s.), 188... 163 

-Saunders V. Frost 5 Pick., 270... 200 

-Saunders v.Topp 4 Ex., 390 156 

Sawyer V. Gerrish.. 70 Me., 254 148 

Sawyer v.Hoag 17 Wall., 610,620... 258,263 

■Sawyer V. Ware 36 Ala., 675 153 



TABLE OF CASES. LxXV 

PAGE. 

Sayles v. North Western Ins. Co 2 Curtis (U. S. C. C), 

613 23Z 

Scarlett v. Academy of Music 43 Md. , 303 259' 

Scheif ele v. Schmitz .43 N. J. Eq. , 700 . . 13 

Schneiderv. Norris 3 M. &T., 286 140 

Schollenberger v. Brinton 53 Pa. St. , 9, 100 374 

Schroedner v. Insurance Co 2 Phil. Pa. ,386 236 

Schumaker V. Eby 24 Pa. St , 531 166 

Schuyler V. Leggett _2 Cow., 660.... '813 

Scogginv. Slater 23 Ala., 687 154 

Scottv. Avery .2 Eng L. &Eq., 837. 286 

5H. L. C, 311 336 

Scottv. Haddock. ..._ llGa.,258 315 

Scottv. Henry ." 13 Ark., 112- 393, 294 

Scottv. Simes 10 Bosw., 314 139 

Scottv. Stanford..' LawEep. 3Eq., 718. 89 

Scott V. The Phoenix Ass. Co. 1 Stewart (Lower Can- 
ada), 153 336 

Scotton V. Scotton 1 Str., 385 348 

SooviUe V. Thayer 105 U. S., 143... ... 262 

Scoville V. Tolland 6 West. Law Jour. , 84 89 

Scranton V. Clark 39 N. Y., 230 183 

Searingv. Searing 9 Paige, 288 123 

Secorv. Secor 18 Abb. N. C, 78, n. 24 

Seddenv. Prindle ....■ 17 Barb., 466 „ 181 

Seller V. Clelland 2 C<)1., 532 17& 

Sellon V. Watts 7 Jur. N. S. , 184 347 

9 Weekly Eepr. , 847. 247 

Semayn's Case.. 5 Co. E., 91 314 

Sewal V. Glidden , 1 Ala., 53 : 136 

Sewell V. Price 82 Ala., 97'. 394 

Sexton V. Montgomery Ins. Co 9 Barb., 191 285 

Sexton V. Wheaton 8 Wheat., 339 137, 128, 180 

Seymontv. Street 5 Neb., 85 384 

Seymourv. Davis : .3 Sandf., 329........ 151 

Seymour V. Mintum 17 Johns., 169 287 

Seymourv. Newton lQ5Mass., 375 192 

Shaf tsbury V. Shaf tsbury 2Vern.,747 248 

Shanks V, Klein 104 U. S., 18 40 

Shannon v. Jones 4 Ired. (N. C), L. , 306 18 



Ixxvi TABLE OF OASES. 

PAGE, 

Shardlo-w V. CottereU 18 Ch. D., 280 162 

20 Ch. D., 90, C. A... 162 

Sharington v. Stratton ,1 Plow., 398, 309 287 

Sharpy. Gibbs C. B. N. S., 537 284 

Sharp V. Gray 5 B. Mour., 4 Ill 

Hharpley Y. HarreU. Cro. Jac, 308 304 

Shaver V. Shaver 54 Iowa, 208 97, 104 

37 Am. Kep., 194.... 97, 104 

Shawv. Barhart 17 Ind., 183 289 

Shaw V. Beveridge .-. '.3 HiU, 26 31 

Shawv. Corbrey 13 AUen, 462 154 

Shawham V. Van Nast _ .. 35 Ohio St., 490 168 

Shawhantv. Van West 25 Ohio St., 490 201 

Shears v. SoRinger 10 Abb., Pr. Eep. (N. S.), 287 121 

Sheldon, etc., Co. v. Eickmeyer, etc., 

Co 56 How. Pr., 71 270 

90N. Y., 607 270 

Sheldon V. Fairfax 31 Vt.,103 44 

Shepherd v. Hampton 3 Wheat., 200 305 

Shepard v. Milwaukee Gas Light Co.-15 Wis., 318 306 

Shepherd v. Pressey 33 N. H., 49 157 

Sherman v. Champlain Transp. Co 31 Vt., 163 183 

Sherman V. Duch 16 lU., 383 314 

Sherwood v. Am. Bible Soo 1 Keyes, 561 42 

Shickle V. Watts -.. .7 S. W. Eep., 274.... 261 

Shinners V. BriU .38 Wis., 648 297 

Shook V. Daly 49 How. Pr., 366, 368 90 

Shuartv. Taylor 7 How. Pr., 351 295 

Shuman v. Shuman 37 Pa. St., 90 _ 180 

Shuttle worth v. Greaves .4 My Ine & C. , 35 246 

Shuttleworth V. Wmter 55 N. Y., 634 189 

Sibley v. Perry 7 Ves., 580 242 

Sidenerv. Bible ....43 Ind., 230 300 

Siegert v. Abbott 61 Md., 276 101 

48 Am. Eep. ,101 101 

Silsby v. Barlow 16 Gray, 329 43 

Silsburyv. McCoon 6 HiU, 425 69 

Simmons V. Clark 56111., 96 385 

Simonds V. Hodgson 3 Barn. & Adol., 50. 304 

Simmons V. Jenkins 76 lU., 479 297 



TABLE OF OASES. IxXVii 

PAGE. 

Simmons V. Swift 5 B. &C.,857 165 

Singer Manuf . Co. v Kimball Scottish L. E. , 173. , 104 

Singer V. Walmsley IFish., 558 76 

Sisson V. Hubbard 10 Hun, 430 396 

Six Carpenters' Case. i SEep., 146, b 813 

Skinner V. Dayton 19 Johns., 513 48 

Skinner V. Oakes 10 Mo. App., 45 97, 100 

Skinner V. Perot ..1 Ashur., 57 107 

Sledge V. Scott 56 Ala., 303 174 

Sleuterv. WaUbaum. .45 111., 44 204 

Slooum V. Seymour 86 N. J. L., 138 153 

Smart V. Batchelder 51 N. H., 140 164 

Smith V. Alexander 4 Sneed, 483 391 

Smith V. Andrews .49 HI., 38 295 

Smith V. Arnold .5 Mason, 416 168 

Smith V. Beattie 81N. Y.,543 393 

Smith V. Benson 1 HUl, 176 395 

Smith V. Brown 8 Hawks, 850..: 286 

Smith V. Bryan .5Md.,141 158 

Smith V. Clark 34 Barb., 140 140 

Smith V. Colson 10 Johns., 91 311 

Smith V. Coolbaugh .,31 Wis., 437 800 

31 Wis., 427 395 

Smith T. Dolby ..4Harr. (Del.), 850... 140 

Smith V. Dorsey .38 Ind., 451 131 

Smith V. Dunlap 13 lU., 184 205 

Smith V. Ely 15 How., 137 76 

Smith v.Flyer ..3 Hill, 648 811 

Smith V. Hudson -5 B. & S., 481. _ 157, 157 

84L. J. Q. B.,145... 156,157 

Smith V. Hughes 6 Q. B , 597 175 

Smith v.Jenks .1 Denio, 580 395 

IN. Y.. 90 395 

Smith V.Jones 18 Neb., 481 41 

66Ga., 388 163 

4 Ohio, 115. 348 

Smith V. Kay 7 H. L. Cas., 774.... 175 

Smith V. Knowlton. UN. H., 191 279 

Smith V. Lampton 8 Dana, 69 343 

Smith V. Maryland 6 Cranch, 386 390 



IxXViii TABLE OF CASES. 

PAGE. 

Smith V. McChesney :...:.15 N. J. Ch., 359.... 140 

Smith V. Miller 43 N. Y., 171 195, 196 

63N. Y.,546 195 

Smith v. Moore UN. H., 55 299' 

Smith V. Neal- 2 0. B. (N. S.), 67.... 163 

26L. J. C. P., 143... 163 

Smith V. New York, etc., Co 18 Abb. Pr., 419, 435. 270- 

Smith V. N. Y. C. R. E. Co .4 Keyes, 180 151 

Smith V. Park 81 Minn., 70 _.. la 

Smith V. Pettee .70 N. Y., 13, 18 201, 202- 

Smith V. Rice 56 Ala., 417 295 

Smithy. Shell 82 Mo., 215 16a 

Smith V. Smith : 4Eajid., 95 3T 

21 Pa. St, 367 172- 

SBlackf., 208 163- 

1 Thomp. & Cook 

(N. Y.), 63 274 

Smith V. Spooner 3 Pick., 239 ICT 

Smith V. Stewart 6 Johns., 48 81fr 

Smith V. Surman 9B. &C., 561 153 

Smith V.Waggoner .50 Wis., 155 12' 

Smithv. Waite - 4Barb.,28 141 

Smith V. Walker 57 Mich., 456 ._ 98 

Smithv. Weaver 90111., 392 142- 

Smith V. Wheeler .5 Gray, 309 187 

Smithv. Wood 37 Tex., 616... 274 

Smithurstv. Edmunds 14 N. J. Eq., 408 148 

Smithurst V. Woolston 5 Watts &S., 106... 205 

Sneed V. Hooker.., Cook (Tenn.), 200... lia 

Snevily V. Read .9 Watts, 396.. 219- 

Snow V. Perkins 60 N. H.,493; s. c, 

49 Am. Rep., 333.. 20^ 

Snow V. Warner 10 Met., 133 156 

Snowdonv. Craig _26 Iowa, 165 296- 

Snyder v. Knuckleman 3 Penn. , 487, 490 312^ 

Snyder v. Snyder 60 How. Br. R., 368. 23, 24 

Soars V. Home Ins. Co 140 Mass., 343 237 

Sohier V. Trinity Ch _109 Mass., 1 21 

Soles V. Hickman 20 Pa. St., 180 16a 



TABLE OF CASES. Ixxlx 

PAGE. 

Somes V. BritiBh Empire Shipping Co.l E. B. & E., 867 201 

L, J. Q.B.,330 201 

8H. L. C.,338 201 

SOL. J. Q. B., 221... 201 

Somera V. Richards 1 46 Vt., 170 174 

Somers V. Wright 115 Mass., 293 204 

Southworth v. Smith 27 Com., 855 34, 36 

Spangler v. Ind. & 111. Central R. R. 

Co 21 111., 276 258, 259 

Sparhawkv. BueU 9 Vt.,41 246 

Spears V. Hartley 3Esp., 81 318 

Spencer V. MoGown .^ 13 Wend., 356 315 

Spivey V. Morris ^.18 Ala., 254 111,391 

Sprigg V. Bank of Mt. Pleasant -14 Pet. ,301 394 

Spring Co. v. Knowlton 13 Otto, 49 308 

S. P. Stubbs V. Houston 33 Ala., 555 138 

St. Joseph E. E. Co. v. Shacklett 30 Mo,, 551, 558 258 

St. Joze V. Indians 1 Wheat., 208.. 166 

St. Louis Iron M , etc., Co., v. Loftin.30 Ark., 693, 709 253 

St. Paul's Ch. V. Ford 34 Barb., 16 21 

Stedmanv. Gooch 1 Esp., 3,4 194, 195 

Steadmanv. Page... ...1 Salk., 390 313 

Steams V. Barrett 1 Mason, 153 79 

Stearns V. HaU 9 Cush., 31 288 

Steams V. Washburn 7 Gray, 187 186 

Stephenson v. Dowson 3 Beav., 842 241 

Stevens V. Brlggs 5 Pick., 177,..''. 69 

Stevens V. Lodge 7Blaokf., 594 315 

Stevens V. Vancleve .4 Wash. C. C, 3£3.. 138 

Stevensonv. Newnham 18 C. B., 385 177 

23 L. J. C. P., 10.... 177 

Stevenson V. Lambard 2 East, 576 331 

Sewall V. Jones ..9 Pick., 412. 107" 

Stafford Bank V. Palmer 47 Conn., 443 ._ 364 

Stafford V. Bryan 2 Paige, 45 317 

3 Wend., 533 317 

Stagg V. Beekman.. •. 2 Edw. Ch., 89 351 

Staggv. Compton 81 Ind., 171 145 

Stainbank V. Fanning (i Eng, L. &Eq., 413 306 

Stall V. Wilbur 77 N. Y.. 158 37 



ISXX TABLE OF OASES. 

PAGE. 

Stanley V. Nelson 28 Ala., 514 180 

Stanley V. Whipple 3 McLean, 35 7» 

Stansfield v. Portsmouth. 4 C. B. (N. S.), 119 -- 18 

Stanton v. Eager 10 Pick., 475 ^.. 191 

Stanton V. Small 3 Sandf., 280 147 

Starbuck V. Murray 5 Wend., 148 281 

State V. Armfleld 2 Hawks., 246 313 

State V. Bailey 16Ind.,46 271 

State V. Bonham 18Ind.,S31 10 

State V. Franklin Bank 10 Ohio, 90, 97 46 

State of Maine v. Intoxicating Liquors.61 Me. , 520 289 

State V. Moore 18 Mo. App.,40e 113 

State V. Murphy 8 Blackf., 498 64 

State V. Randolph 26 Mo., 213 283 

State V. Smith.. 2 Me., 62 283 

State V. Thackaw 1 Bay, 358 315 

State V. Whittaker 19 La. Ann., 142 283 

Stewart V. BeU... 33 Miss., 154 67 

Stewart V. Lay. 45 Iowa, 604 263,267 

Stires v. Van Renssfelaer 2 Bradf . , Surr. , 172.. 246 

Stockdalev. Onyirhynl 5 Barn. & C, 173... 90 

Stocken's Case , L. E. 3 Ch., 412 261 

Stocker V. Partridge 2 Roberts, 193... 161 

Stockettv. Sasscer 8 Md., 374 217 

Stockhamv. Stockham 32 Md., 196 146 

Stockton V. Ford 18 How., 418 282 

Stockwell V. Phelps 34 N. Y.,368... 66 

Stoddard V. Dennison 38 How. Pr., 296 803 

Stoddard v. Shetucket Foundry Co. . . .34 Conn. ,542 255 

Stokes V. Cooper 4 Camp., 514 323 

Stokes V. HoUis .43 Ga., 362. 294 

Stone V. Aldrich ^43 N. H., 52 85 

Stone V. Browning 68 N. Y., 598 156 

51N. Y.,311 156 

Stone V. Flagg 73IU.,897 43 

Stone V. Nichols 43 Mich., 16 197 

Stone V. Peacock 35 Me., 388 _ 165 

Stonebreaker v. Stonebreaker 33 Md. . 252 104 

Story's Ex'rs V. Holcombe 4 McLean, 806 89 

Storey's WiU 20111. App., 183 139 



TABLE OF CASES. 



Ixxxi 



PAGE. 

Stout V. City Fire Ins. Co 13 Iowa, 371 333 

Stovalv. Barnett - ..4Litt.,307 387 

Strauss V. Eagle Ins. Co 50hioSt., 59 44 

Strauss V. Frederick... 19 N. C, 131 41 

Strauss V. Ross 35Ind., 300 165 

Street v.Blay 3 Barn. & Ad., 456.. 389 

Street V. Chapman 39Ind., 143 145 

Strickland V. Turner 7 Ex., 308 147 

Strohecker v. Grant 18 Serg. & E. , 337. .. 318 

Strong V. Colter 13 Minn., 83 36 

Strong V. Doyle .110 Mass., 93 154 

Strong V. Manuf. Ins. Co 10 Pick., 40 330 

Strong V. Williams 13 Mass., 391 350, 351 

Strubee v. Cincinnati So. By. Trustees-39 Am. Eep., 351 70 

78Ky., 481 70 

Stubbs V. Lund 7 Mass., 453, 456 .... 191 

Stuart V. Landers 16 Cal., 373 110 

Sturges V. Crowninshield 13 Wheat., 119 118 

4 Wheat., 133, 195. 119, 130, 133 

Suberv. Pulling IS. C, 373 151 

Suisse V. Lowther 3 Hare, 434, 433, 433. 343 

SuUivan v. Park 33 Me., 438 107 

Sunmerv. Sumner 7 Harr. & J. (Md.), 388 140 

Summers V. Vaughn 35Ind., 333 . 183 

Sun Mut. Ins. Co. v. Mayor.. ..8 Barb., 450 238 

Sutton V. Sutton 5 Harr. (Del.), 459... 138 

Sweny V. Smith .L. R. 7 Eq., 334 261 

Swiggart v. Harber .5 111., 364 383 

Swooper's Appeal ...'. 37Pa. St., 58 349 

Sykes V. Beadon 11 Ch. D., 170 180 

Syler v. Eckhart. - 1 Binn. (Pa.), 37S.... 138 

Sylvester V. Girard 4Rawle, 185 59 

Symonsv. Hughes .3 Eq., 475, 479 208 



Taberv. Hamlin ....97 Mass., 498 393 

Taft V.Travis 136 Mass., 95 149 

Talbot V. DeForest 3 Iowa, 586 393 

Tallman V. FrankUn 14N. Y., 584 161 

p 



Ixxxii TABLE OF CASES. 

PAGE. 

Tallmanv. Jones 13 Kan , 438 29T 

Talmanv. Smith. 39 Barb., 390 398 

Tancilv. Seaton 28 Gratt. (Va.), 601.. 59 

Tannery. Smart ..6 B. & C, 603, 609.. 316, 317 

Tappan V. Bailey 4Md.. 535 48 

Tatev. Williamson ..L. E. 3Ch.,55 173 

Tayloev. Insurance Co 9 How., 390 146 

Taylor V. Bowers 1 Q. B. D., 391, C. A., 308 

Taylor V. Carpenter 3 Story, 458 99 

Taylor v. Carpenter .3 Sandf. Ch., 611,613 104 

Taylor V. Cox ...3 6. Mon. (Ky.), 439. 34 

Taylorv. KeUey 5Hun,115... 136 

Taylor V. Jones L. E. C. P. D., 87... 145 

Taylorv. Patterson 9 La. An., 351 107 

Taylorv. Taylor 8 How., 199 139 

Taylor et al. v. The United States 3 How. ,197 58 

Taylor V. Wilson 11 Met.. 44. 196 

TeafE V. Hewitt .....lOhioN. S., 511.... 10 

Teesev. Phelps 1 McAU., 48 75 

Templev. Mead .4Vt.,586 140 

Tenney V. TheN. E. Protective Union.87 Vt., 64 47 

Terboss V. Williams 5 Cow., 407 313 

Terrell V. Martin. 64 Tex., 131 34 

Terry V. Wheeler ...35 N. Y., 535 165 

Terwilliger V. Knapp 2 E. D. Sm., 86 188 

Tesson v. Atlantic Mut. Ins. Co 40 Mo. ,33 233 

Tewksbury V. Bennett .31 la., 83... 183 

The Angelica Blatohf. Pr. Cases, 566.. 58 

The Augusta 1 Dod., 383 808 

The Aurora 1 Wheat., 96 305,307 

The Bray v. Bates 9 Met., 237 .. 804 

The Brig Atlantic _1 Newb. Adm. , 514.. 305 

The Brig Nestor .1 Sumn., 85 307 

The Caledonia 4 Wheat., 100 58 

The Cargo of Ship Emulous 1 GaU., 563 58 

TheChusan 3 Story C. C, 468.... 307 

The Cognac 3 Hagg. Adm., 387.. 804 

The Collins Co. v. Cowen 3 Kay & J., 438 99 

The Collins Co. v. Brown 3 Kay & J., 433 99 

The Constancia 10 Jur.,850 „ 806. 



TABLE OF OASES. IxXXlii 

PAGE. 

T^he Draco 2 Sumn., 157 803, 305 

The Duke of Bedford 3 Hagg. Adm. , 294. . 305 

The Emancipation ^..IWm. Rob., 139 805 

The Fortitude 8Sumn.,246 305 

The Glen & Hale Manuf. Co. v. Hall.61 N. Y., 226, 380. .. 99, 101 

The Hero 3 Dod., 139 307 

The Hilarity .Blatchf. & H. Adm., 90. 305 

The Hunter .Ware, 341 805 

The Jane 1 Dod., 466 ' 305 

The Kammerheive v. Eozencratz 1 Hagg. Adm., 63... 306 

The King V. Dodd 9East,516 47 

The Leather Cloth Co. v. The Am. 

Leather Cloth Co De Gex, J. & S., 187 99, 101 

11 House of Lords 

Cas.,523 ..'... 99,101 

The Lord Cochrane 3 Wm. Eob , 320 305 

The Lucy Ann. 23 Law Eep. , 545 128 

The Madonna D'Idra 1 Dod., 40 306 

TheMary 1 Paine, 671 804,305 

The Mary Ann 9 Jur., 95 806 

TheMears 8 Cranch, 417 107 

The Merrimao Blatchf. Pr. Cases, 584. 58 

The Nelson 1 Hagg., 169, 176.... 806, 307 

The Packet 3 Mason, 255 807 

3 Mason, 255 308 

The Royal Stuart .83 Eng.L.& Eq., 603 305 

The Ship Packet .3 Mason, 255 305 

The Sidney Cove 2 Dod., 1, 13 306 

The Statev. Stevenson 2 Baily, 834, 335 107 

The State V. Weston 9 Conn., 527 60 

The Surplus, etc., of the Edith 5 Ben., 144 '275 

The Tartar 1 Hagg., 1 307 

The Virgin 8 Pet., 588 306 

8 Pet., 583 306 

TheYsabel - 1 Dod., 373.... 308 

The Zodiac 1 Hagg., 330, 826.... 808 

Tliomas'Case L. R. 13Eq.,437 361 

1 De Gex & Sm., 579. 367,' 268 

Thomas V. Heathom 3 B. & C, 477 386 

Thomas V. Hunter 39 Md., 413 IW 



IxXXiv TABLE OF CASES. 

PAGE. 

Thompson's Appeal 57 Pa. St., 175 281 

Thomsonv. Batie 11 Neb., 147, 151.... 293 

Thompson v. Dougherty 12 Serg. & E., 448- 127, 129 

Thompson V. French 10 Yerg., 453.. 217 

Thompson V. Hyper 67Penn., 368 _ 138 

Thompson V. Pacific E. E. Co 9 Wall., 519 43 

Thompson V. Eay - .46 Ala., 224 166 

Thompson V. Spittle 102 Mass., 207 295 

Thompson V. Stanhope _Ajnb., 732 , 93 

Thompson V. Thompson 6Munf., 514 15 

4 Gush., 134 117 

Thompson V. The Bank of British N. A. -82 N. Y., 1 196 

Thompson v. Winchester 19 Pick., 214 104 

Thorn V. Newsotn 64 Tex., 161. 280 

Thorn V. Thorn 51Mich.,167 287 

Thome V. Barwick 16 Up. Can. C. P., 369 146 

Thorndike V. Stone 11 Pick., 183, 187-303, 804, 305 

Thornton V. Crowley 47 N. Y. Super. Ct. 

(15 J. &-S.), 527 ' 97 

Thornton v. Hempster .5 Taunt., 786 163 

Thurlow V. Massachusetts..^ 5 How. U. S. Eep., 504 4 

Thurstv. West 81 N. Y., 215 111 

Tifft V. Porter 8 N. Y., 518 841, 242 

Tiftv. Horton 58 N. Y., 377 296 

Tiley V. Moyers. 43 Pa. St., 404 321 

Tillinghastv. Wheaton 8 E. I., 536 184 

Tilton Saf e Co. v. Tisdale 48 Vt., 83 184 

Timms V. Shannon .19 Md., 296... 300 

Tinney V. Stebbins 28 Barb., 290 87 

Tippets V. Heane Cromp. M. & E., 252 218 

Tisdale V. Harris 20 Pick., 9 153 

Tobey V. Barber 5 Johns., 68 195 

Tobey V. Eeed 9 Conn., 316 _. 16, 17 

Tobey V. EusseU 9 E. I., 58 263 

Todd V. Harding 5 Ala., 698 294 

Tompkins V. Halleck .138 Mass., 32 95 

48 Am. Eep., 480 95 

Tongue V. Nutwell 31 Md., 303 230 

18Md.,415 246 

Tower V. Tudhope Up. Can. Q. B., 200_ 157 



TABLE OF CASES. IxXXV 

PAGE. 

Towns V. Springer 9Ga., 130 279 

Townsendv. Henry ...9 Rich. L., 318 197 

Traders' Mut. Ins. Co. v. Stone 9 Allen (Mass.), 483.. 238 

Trammellv. Thurmond 17 Ark., 203 290 

Transportation Co. t. Ciicago 99 U. S. Eep. , 367. „ 4 

Tread well v. Salisbury Mfg. Co 7 Gray, 392 271 

Treakly v. Fox 9 B. & 0., 130 251 

Trebilcock V. Wilson 12 Wall., 687 275 

Tredwen V. Holman- 1 Hurl. & C, 72 .... 237 

Trevor V. Wood- „36 N. Y., 307....' 146 

Trimble V. Eatclifle 9B. Mon., 511...... 138 

Tripp V. Riley 15 Barb., 333, 336. ._ 37 

Tritt's Adm'rs v. Colwell's Adm'rs 31 Penn., 232 123 

Trostv. Dingier 118 Pa. St., 259 139 

Trott V. City Ins. Co 1 Cliff. (U. S. C Ct.), 438 237 

Trucks V. Lindsay -18 Iowa, 505 391 

Trumeny. Fenton Cowper, 548 213 

Tryonv. Sutton 13 Cal., 490 123 

Tucker V. West 29 Ark., 386 180 

Tucker Manuf. Co. v. Boynton 10 U. S. Pat. Gaz., 455 100 

Tuckerman V. Brown 33 N. Y.,397 339 

Turner V. Burrows 8 Wend., 144 239 

Turner v. Langdon 113 Mass., 265 186 

Turner V. Tendall 1 Cranch, 116 276 

Tutton V. Darke 5 Hurl. &N., 654... 314 

Tyler V. ^tna Ins. Co 12 Wend., 507 233 

Tyler V. Gardiner 35 N. Y., 559 138 

u. 

Umsted V. Buskirk 17 Ohio St., 113 267 

Union Ins. Co. v. Hoge How. (U. S.), 35 237 

Union Meeting House v. RoweU 66 Me 31 

United States V. Behan 110 U. S., 338 205 

United States v. Burdett 9 Pet., 682 107 

United States v. Delaware Ins. Co 4 Wash. C. C, 418.. 306 

United States v. Roche 1 McCrary C. C, 385 98 

United States v. Seventy-six Thousand 

One Hundred and Twenty -five 

Cigars 18 Fed. Eep., 147.._ 107 



LxXXVi TABLE OF OASES. 

PAGE. 

tJnited States v. Stefifens 100 U. S., 83 98 

United States V. Tanner "6 McLean, 138 92 

United States v. The Active 3 Car. Law Kep., 193 58 

United States v. Thompson Gilp., 614 388 

United States v. Two hundred, etc., 

bales of Cotton Law Rep. N. S., 451. 58 

Updegraph v. Commonwealth 11 Serg. & R., 394... 91 

Upton V. Hansbrough 3 Biss., 417 265 

Upton V. Tribilcock ...91 U. S.,45.. 263 

Utleyv. Donaldson .94 U.S.. 29, 47 145 

V. 

Vacuum Oil Co. Buffalo Lubricating 

Oil Co .26 Weekly Dig., 570. 103 

Vaden V. Vaden 1 Head. (Tenn.), 144. 122 

Vail V. Strong lOVt.,457 143 

Vaisey V. Reynolds ..5Russ., 12 272 

Valentine V. Foster 1 Met., 520 ^19 

Valentine V. Jackson.. 9 Wend., 302, 323... 116, 311 

Van Bea v. Prescott 82 N. Y., 630 101 

Van Bracklin V. Fonda 12 Johns., 468 185 

Vandenberg V. Palmer... .4 Kay & John., 204. 127 

VapDeusenv. Rowley. 8 N. Y., 358 127 

Van Doren V. Baity "11 Hun, 239 34 

Van Dyke V. Bastedo 15 N. J. L., 224 390 

Van Guysling V. Van Kuren 35N. Y., 70 138 

Van Hanswyck v. Wiese .44 Barb., 494 139 

Van Houton v. Reformed Dutch Ch..2 Green. (N. J.), 126. 22 

Van Nest V. ConoverJ 20 Barb., 547 177 

Van Nostrand V. Carr 30 Md., 128 121 

Van Rensselaer V. Bradley ,..3Denio, 135 322 

Van Rensselaer V. Dennison 35 N. Y., 393 29 

Van Rensselaer's Ex'rs v. Gallup 3 Denio, 445 323 

Ven Rensselaer's Ex'rs V. Jewett 5 Denio, 135 317 

Van Rensselaer V. Jones _3 Barb., 643 333 

Van Ripper v. Van Ripper 1 Green. Ch., 1 250 

Van Valkenburgh V. Smith 60 Me., 97 287 

Van Vechten v. Van Vechten 8 Paige, 104 143, 244 

Van Wert V. Benedict 1 Bradf. Surr., 114.. 14J 



TABLE OF CASES. IxXXVii 

PAGE. 

Vassar V. Buxton .86N. C, 335 166 

Vasserv. Camp. UN. Y., 441 146 

Ventressv. Smith 10 Pet., 161 60 

Vermilyeav. Austin 3 E. D.Smith, 208... 321 

Vielev. Osgood 8 Barb., 130 21 

Vincent V. Leland 100 Mass., 433 207 

Virtue V. Beasley .3 Mood. &M., 21... 313 

Voorhees v. McGinnis.... 48 N. Y., 278, 387... 396 

Voorbesv. Earl 3 Hill, 388 307 

Voorhees V. Fresh. Ch 17Barb.,103 22 

Voorhiesv. Earl. .3 HUl, 292 489 

Vorebeck v. Eowe 5 Barb., 303 153 

Vosev. Deane .7 Mass., 380 283 

Vose V. Life and Health Ins. Co 6 Cush., 42 234 

Vroom V. Van Home 10 Paige, 549 116 

w. 

Waddingtonv. Bristow 2 B. &P.,453 153 

Waddingtonv. Buzby 43 N. J. Eq., 154 139 

Wade V. Moffitt 21 lU., 110 165, 186, 203 

74 Am. Dec, 79 186 

Wadleigh v. Janvrin 41 N. H., 508 10 

Wagstaff V. Wagstaff Law E. Eq., 239 143 

Wainnaman V. Keinman 1 Exch., 118 199 

Wainwright v. Bland 3 Mad. & Rob., 481.. 333 

1 Mees. & W., 33.... 233 

Waitev. Dennison 51 111., 319 302 

Wakefield V. Fargo 90 N. Y., 213 365 

Walden V. Chamberlain .3 Wash., 390 305 

Waldman V. Broder 10 Cal., 378 35 

Waldo V. Belcher 11 Ired., 609 164, 168 

Walker v. Bartlett 18 C. B., 845 266 

Walker's Case 3 Rep., 33 b 317 

Walker V. Hall 34 Pa. St., 483 141 

Walker v. Pue 57 Md., 155 184 

Walker V. Staples 5 Allen, 34. 298 

Walker V. Suple 54 Ga., 178 152 

Walker V. Wait 50 Vt, 668 318 

Wall V. Wall 28 Miss., 409 283,290 



IxXXViii TABLE OF CASES, 

PAGE. 

Wallace V. Breeds 13 East, 523 168 

WaUacev. BardeU 97 N. Y.,131 136 

Wallace v. Pomfret 11 Ves., 543 349 

Walrath V. Ingles .64 Barb., 365.. 159 

Walls V. Gates 6 Mo. Ap., 243. 207 

WaUsv. Stewart 4 Harris, 381 341 

Walter V. Flint Cro. Eliz.. 743 333 

Walton V. Crowley 3 Blatchf. C. C, 440. 101 

Walton V. Walton 7 Jolms. Ch. R., 358, 363, 264 242, 348 

Walsh V. Sexton 55 Barb., 351, 256 134 

Walsh V. Washington, etc., Ins. Co.-.33 N. Y., 437 235 

Warburton v. Aken 1 McLean, 460 383 

Ward V. GriswoldviUe Mfg. Co. 16 Conn., 593 _ 261 

Ward V. Shaw 7 Wend., 404 164 

Ward V. Turner 2 Ves. Sen., 431, 439, 440 130, 133 

Ward V. Lant Prec. Ch., 183 348 

Warnev. Beach 4 Gray, 163 141 

Warner V. Welhngton 3 Drew., .533... 163 

25 L. J. Ch., 663.... 163 

Warren V. Leland 3 Barb., 613 153 

Warren V. Tomey 13 Serg. &E.,53 313 

Warren v. Tyler .81 lU., 15 _ 389 

Warren V. Whitney 24 Me., 561 319 

Warriner v. The People 74 111., 346 196 

Wart V. Scott -6 Grant (Ont.), 154.. 191 

Washburn v. Gould 3 Story, 133 74, 75 

Washburn V. Merrills 1 Day, 139 394 

Waters V. Thanot J3 Q. B , 757 214 

Water's Patent Heating Co. v. Smith.130 Mass. ,444 389 

Waterman v. Meigs 4 Cush., 497 150, 163 

Watkinson v. Inglesby .5 John., 386 285 

Watts V. Friend 20 B. & C.,446 155 

Waugh V. Cope 6 M. & W., 834 218 

Waukf ord V. Waukford 1 Salk., 299 _ 251 

Waukon, etc., R. R. Co. v. Dwyer 49 Iowa, 121.. 256 

Waydell V. VeUe , ...1 Bradf., 277 197 

Wear v. Jacksonville & Savannah R. 

R. Co 24ni., 593 259 

Weaver V. Wallace 9 N. J. L., 251 175 

Webster V. DeWitt 1 36 N. Y., 340 183 



TABLE or CASES. IxXXlX 

PAGE. 

Webster V. Granger .78111., 230.. 184 

Webster V. Upton ..91 U. S., 65 265 

Webster V. Zielly „53Barb., 4 3 _ 160 

Weedv. Boston Ice Co 13 Allen, 377 165 

Weeks V. Burton 7Vt., 67 175 

Weeks V. Silver Islet, etc., Co 55 N. Y., Super, Ct. 

(J. & S.), 1, 16.... 106 

55 J. & S. (N. Y.), 1^ 260 

Weikersheim's Case l.L. E. 8 Ch., 831 267 

Weir V.Bell L. R. 3Ex. D.,288.. 175 

Welch V. Saokett 13 Wis., 343 35 

Weld V. Cutler 2 Gray, 195 164 

Weldv. Oliver 21 Pick., 559 86 

Weld V, "Walker 130 Mass., 432; s. o. 

39 Am. Rep., 465.. 24 

Welldr V. Shearman 3 Denio, 363 314 

Wells V. Larrabee 86 Fed. Bep., 866 267 

Wells V. March SON. Y., 344 41 

Wells V. Martine 2 Bay, 20 107 

Wentworthv. Bullen ^ 9 B. & C, 850 285 

Wentworth V. Day 3 Met., 353 61 

Wentworth v. First Parish 3 Pick., 344 S3 

West Branch Ins. Co. v. Helfenstein..40 Pa. St., 389 231 

Westv. Crary 47 N. Y., 433 800 

West V. Pritchard 19 Conn., 313, 215... 204, 205 

Westv. Wentworth 3 Cow., 83... 205 

Westchester, etc. , E. R. Co. v. Jackson.77 Pa. St. , 331 255 

Westcott V. Minnesota, etc., Co 33 Mich., 145 260 

Westervelt V. Lewis 2 McLean, 511 279 

Westfall V. Hudson' River Fire Ins. Co.2 Duer, 490, 494 233 

Weston V. Hight 17 Me., 287 133 

Wetherbeev. Green J23 Mich., 311 70 

WetheriUv. Stillman 65 Pa. St., 105 281 

Wetmore v. Zabriskie 29 N. J. Eq., 63 37 

Whartonv. Morris .1 Dall., 134 _ 273 

Whartonv. Stoughtenburgh _35 N. J. Eq., 366 236 

Wheatonv. Gates 18 N. Y., 395 _ 21 

Wheaton v. Peters .8 Pet., 591 84 

Wheeler v. Wheeler „11 Vt., 60 286 

Whetstone v. Whetstone 31 Iowa, 376 281 



XO TABLE OF OASES. 

PAGE. 

Whipplev. Parker ^9 Mich., 370 49 

Whipple V. Stevens 2 Foster, 319 218 

Whislerv. Koherts 19 lU., 274 297 

White V. Allen 2 Fish., 440 76 

White V. Basoom 28Vt.,268 211 

White V. Brooks .43 N. H., 402 36 

Whitev. Buss. — ....3 Cush., 448, 450.... 179 

White V. Casten 1 Jones L. N. C, 197 140 

Whitev. Cole '. 24 Wend., 116 298 

Whitev. Dingley 4 M^ss., 483 288 

Whitev. Foster 102 Mass., 375 153 

Whitev. Haight. 16N.Y., 310 239 

White V. Havens. .1 2How. Pr. Kep , 177. 237 

White V. Methodist Epis. Ch ..„3 Lans., 477 21 

Whitev. MiUer 7 Hun, 427 206 

71 N. Y., 118 _ 206 

78N. Y., 393 206 

White V. Molyneux 2Ga., 124 _ 320 

White V. Palmer... 1 McNuU (S. C.), Ch. 115. 128 

Whitev. Philhrick 5 Grenl., 147 Ill 

Whitev. Salisbury 33 Mo.. 150..^ 205 

Whitev. Tompkms 62 Pa. St , 363 204 

Whitfield V. Gates 6 Jones, Eq., 136.... 294 

Whitfield V. Whitfield... 40 Miss., 352. 128 

Whitley v. Eoberts .1 McClel. & Y., 107. 318 

Whitmarshv. Cutting 10 Johns., 360 15 

Whitmarsh V. Walker 1 Met., 313 158 

Whitmore V. Scovell 3 Edw. Ch., 320 93 

Whitney v. Emmett. 1 Baldw., 303 75, 80 

Whitney V. French 25 Vt., 663 300 

Whitney V. LoweU 33 Me., 318 297 

Whitney V. Myers 1 Duer, 267.. 323 

Whittaker v. Farmers' Union Jns. Co.29 Barb. ,813 238 

Wicks V. Ludwig 9 Cal., 178 279 

Wiggle V. Wiggle 6 Watts, 522 138 

WikoflC's Appeal 15 Pa. St., 281 140 

Wilcox V. Hall 53 Ga., 635 _ 184 

Wilcox V. Kassick 2 Mich., 165 281 

Wild V. WiUiams 6 M. & W., 490 288 

Wilkins v. Lindo 7 M. & W., 81 288 



TABLE "OF OASES. XCl 

PAGE. 

Wilkinson V. Tousley 16 Minn., 399 22& 

Willard v. Tillman 19 Wend., 358 320 

WiUard V. Whitney .49 Me., 285 _ 281 

Williams V. Bacon 2 Gray, 387 161 

Williams V. Carpenter. _36 Ala., 9 197 

Williams V. Crary _5Cow.,870;8Id.,246; 

4 Wend., 443 250 

Williams v. Howard 3Munf., 277 813 

Williams V. Jones 13 East, 489 218 

Williams V. Robinson 73 Me., 186 168 

Williams v. Spencer 4 Johns., 352 815 

Williams V. Storm 2 Duer, 52 209 

Williams v. The Bank of Mich .7 Wend., 542 47 

WiUiams V. Watkins 3 Pet, 51..: 86,51 

WilUams v. Western Union Tel. Co. ..93 N, Y., 162, 188... 253 

Williamson V. Sammons _34 Ala., 691 183 

Willings V. Consequa... Pet. C. C, 301. 288 

Wilmer V. The SmUax 2 Pet. Adm., 295 808 

Wilmerding v. Mitchell 52 N. J. L., 476 294 

Wilmshurst V. Bowker 2 M. & G., 792 166. 

WUsonv. ^tnalns. Co._ 27 Vt., 99 285 

Wilson V. Brannan 27 Cal., 258 : 298, 300 

Wilson V. HiU 3 Met., 66 221,229, 

Winchester v. Nutter 52 N. H., 507 225 

Windt V. German Reformed Ch „4 Sandf . Ch. ,471 23 

Wingv. Merchant 57 Me., 883 127 

Winslowv. Crocker _17 Me., 29 123 

Winsorv. McLellan 2 Story, 493 299 

Winter V. Bandell 80 Ark., 362 175 

Wintermute V, Reddington 1 Msh., 339 75- 

Witiierby V. Ellison ..19Vt., 379 20 

Witherell v. Marine Ins. Co 49 Me. , 200 . . ., 233 

Withers v. Buckley 20 How. U. S. Rep., 84 4 

Withers V. Weaver 10 Penn. St., 391 128 

Wittersheim v. Lady Carlisle 1 M. & W., 533 214 

Wittowski V. Wasson 71 N. C, 451 142 

Wolcott V. Mount 36 N. J. L.,363 184 

Wolf V. Estes 7Ind,448 138 

Wolfe V. Goulard 18 How. Pr., 64 98 

Wolf V. Washburn .6 Cow., 201.. 818- 



y.CU TABLE OF OASES. 

PAGE. 

Woodv. Ash Owen's Eep., 139 67 

-Vood V. Dummer 3 Mason, 308, 323..- 258, 368 

JVoodv. Munn. , 5 Bing., 10 314 

SVoodv. Pierson 45Mich.,313 61 

Woodbury Savings Bank v. Charter 

Oak Ins. Co 31 Conn., 517 234 

Woodcock V. Parker 1 GaU., 438 74, 75 

Woodruflf V. Dobbins 7 Blackf., 583 285 

Woods V. McGee .7 Ohio, 467 _ 168 

Woodson V. McClelland .4 Mo., 495 139 

Woodson V. WaUace .23 Pa. St., 171 301 

Woodwell V. Keeler .8 Watts & S., 63 48 

Wood worth v. Eogers 3 Woodb. & M. , 135. 80 

Woodworth v. Sherman 3 Story, 173 79 

Woolam V. RatclifE 1 Hem. &M..359... 103 

WooUaston's Case .4 De Gex & J., 437.! 261 

Woolsej V. Judd.. .4 Duer, 379, 384 93, 93 

Wooton V. Eedd 12 Gratt. (Va.), 196.. 136 

Wordv. Cavin.. 1 Head, 506 183 

Work V. Mercliants', etc.. Fire Ins. Co.ll Cush., 371 230 

Worthenv. Wilmot ...30 Vt.,555 204 

Worthington v. Bearse 12 Allen, 382 231 

Wright V. Brown 67 N. Y., 1 . 178 

Wright V.Ross 36 Cal., 414 298 

Wright V. Ward 65 Cal., 523 41 

Wright V. Weeks...' 35 N. Y., 158 163 

Wyer V. Dorchester, etc 11 Cush., 51 373 

Wylderv. Crane 53 111., 490 800, 303 

Wymanv. Am. Powder Co .63 Mass., 168 357 

Wynkoop v. Wynkoop -42 Pa. St., 393 24 



Senos V. Markham 3 Law Eepts. (H. L.), 

296 227 

Y. 

Yockney V. Hansard 3 Hare, 630, 623 243 

Yostiv. Laughran .49 Misso., 594 173 

Young V. Bruces 5Litt., 334 .... 147 



TABLE OF OASES. XOUl 

PAGE. 

Young V. Glendenning 6 Watts (Pa.), 509... 138 

Young V. HaU A Ga., 95 176 

Young V. Merton 27 Md., 114 203 

Young V. Miles 30 Wis., 615 168 

Young V. Monpoey 2 Bailey (S. C), 278. 217 

Youngv. Moses 53Ga., 638.., 268 

Young V. Ward...' _21 lU., 333 132 

Young V. Young .80 N. Y., 432, 480... 126 

z. 

Zaqueyv. FurUell 3 Camp., 240 164 

Zeigler V. Eckhert 6 Pa. St., 13 250 

Zuverv. Lyons 40 Iowa, 570 294 



THE LAW OF PERSONAL PROPERTY 



CHAPTEE I. 

INTRODUCTORY.— DEFINITION AND USES OP THE WORD 
" PROPERTY."— GENERAL CLASSIFICATIONS. 

Section 1. Deflnition of the term. 

2. Uses of the term. 

3. Real, and personal, property. 

4. Absolute, and qualified, property. 

5. Linaitations of absolute ownership. 

§ 1. Definition of the term The word " property " 

may be defined briefly as the exclusive right of possess- 
ing, enjoying, and disposing of, lands and chattels. ' The 
' term ' ' exclusive right, ' ' hovrever, does not confine the 
ownership to a single individual, for property may be 
owned by two or more persons at the same time, jointly, 
or in common;" nor does it necessarily imply immediate 
possession ; for there may be an intermediate and tem- 
porary rightful possession by a third party having a 
special or qualified property in the subject of ownership ; 
as in cases of a life interest, a mere usufruct, a lease, a 
bailment, or a trusteeship. The exclusive right in our 
definition of property, is the ultimate proprietary right 
vested in^ one or more persons as -owners. 

' Sch. Pers. Prop., pp. 4, 5; And. L. Diet., "Property;" Bouv. L. 
Diet., "Property;" 1 Cooley's Black., p. 139, notes (18), (19); Jackson 
V. Housel, 17 Johns., 381, 283 ; Morrison v. Sample, 6 Binn. Pa., 94. 

» See infra §§ 26, 37; Bouv. L. Diet., "Property," sub. 4. 



2 OSES OF THE TEEM " PEOPEETT. " [§§2 3, 

§ 5J. Uses of the term. — The word ' •property'' ' as used 
in |;he law, has two general significations ; first, to indi- 
jate the right or interest of a person in or to the subject 
in question, as whether absolute or qualified; the absolute 
right being the ultimate, exclusive proprietary right, con- 
stituting ownership ; and the qualified property being an 
intermediate, Hmited and temporary interest, or a right- 
ful possession.' And, second, in connection with quali- 
fying words it characterizes the particular subject or 
kind of property in question, in respect of classification, 
as whether real or personal.' In other words, it is used 
both to, indicate the kind or cjLass of property in question, 
and the interest of a party therein ; sometimes the one, 
and sometijnes the other. 

§ 3. Real, and personal, property The principal 

line of distinction bet^Yeen the two classes runs between 
mobility and inmoMUty. Heal property is that which is 
immovable and permanent in its character or use. Under 
the feudal law it was designated by, and embraced in, 
the terms ' ' lands, tenements and hereditaments. ' ' The 
term real property, as now. used in contradistinction to 
personal property, includes land, together with perma- 
nent structures upon and under its surface ; and, in legal 
contemplation, land extends upwards usquw ad caelum, 
and downwards usquce ad inferos. It will be seen, how- 
ever, in a subsequent chapter, that certain things per- 
sonal in their character are, under some circumstances, 
regarded as part of the realty. 

Personal property is movable in its nature, and em- 

' Bouv. L. Diet., " Property," sub. 3 ; see infra § 4 ; And. L. Diet., 
" Absolute Property." , 

« See infra § 3. 



§§ 4, 5.j ABSOLUTE, AND QUALIFIED, PEOPEETT. 3 

braces every species of property not possessing the char- 
acteristics of real property, as above defined.' 

As personal property constitutes the subject of this 
treatise, its characteristics wOl be' more fully shown in 
subsequent chapters. 

§ 4. Absolute, and qualified, property. — Absolute 
property consists in a full and complete title to, and 
dominion over, a thing. Qualified property is a tempo- 
rary or special interest in a thing, which is liable to be 
totally extinguished by the occurrence of some particular 
contingency, without the act of the intermediate possessor 
or proprietor. For examples of this class may be men- 
tioned the iaterest of a person in light ; title to animals 
feT(K naturm when captured ; the interest of a bailee in 
goods bailed or pledged; the title of executors and 
administrators to decedent's estate; and title of trustees 
and guardians to the trust estate. And, the legal title 
to a thing may be in one person and the equitable interest 
in another, at one and the same time.' 

§ 5. Limitatious of absolute ownership. — It should 
be noted in passing that to absolute ownership of property 
there are certain limitations which are the necessary con- 
ditions of organized society and civil government : 

First. A person is not at liberty to so use his own as 
to injure the rights of another. Sic utere tw) ut aUenum 
non loBdas is the legal maxim.' 

'Tiede. on R. Prop., §§ 1, 3 ; Bouv. L. Diet., "Eeal Property," 
^'Personal Property;" 1 Soh. Pers. Prop., p. 25; 2 Black. Com., p. 385; 
^ Kent Com., pp. 340, 341 and note. 

■' Bouv. L. Diet., "Property," sub. 3; 2 Kent Com., pp. 847, 348; 
2 Sch. Pers. Prop., p. 695 ; Edw. Bail, g§ 36-43, 369-373. 

'Broom's Leg. TUax., pp. 375-289; 1 Seh. Pers. Prop., p. 21 ; 1 
Cooley's Blaek.,pp. 317-319; Bishop Non-Cont. Law, §§ 14, 15,412-433. 



LIMITATIONS. 



[§5.- 



Second. The State, under what is known as the police 
power, has authority to control the use of property in 
the hands of its owner, within certain limits; and, in 
some cases, even to take it from him without his consent 
and against his will. Solus popuU sivprema lex.^ 

Third. The citizen owes to government allegiance and 
support, in return for protection and benefits received ; 
and the government has a rightful claim upon so much 
of his property as may be requisite for its maintenance 
and due administration. On this claim rests the author- 
ity for taxation." 

Fourth. The prerogative of eminent domaim, a sover- 
eign power of the state, by which private property may 
be taken for public use without the consent of the owner. 
This power is lodged in the Legislature as the represent- 
ative of the state, and its exercise conditioned, in this 
country, upon providing for compensation to the owner.' 

Fifth. The property of every person is liable for the 
satisfaction of all his just debts, except in so far as it may 
be exempt by statute. He cannot legally alienate his 
property by gift, or otherwise dispose of it, in fraud of 
his creditors. A hona fide purchaser, however, will be 
protected as having an equity superior to that of a cred- 

' Broom's Leg. Max., pp. ^-7; Bishop Non-Cont. Law, §§ 91-96; 
Thurlow V. Mass., 5 How. U. S. Eep. 504. 

» 1 Sch. Pers. Prop., pp. 3a-34; 1 Story Const., g§ 906-1053 ; Cooley 
Const. Law, pp. 54-63 ; Cooley Const. Lim., pp. 479-531. 

» 3 Kent Com., p. 339 ; Bishop Cont. (Enl. Ed.), § 573 ; 1 Sch. Pers. 
Prop., pp. 33-33; Bishop Non-Cont. Law, § 119; Const. U. S. Amend'ts, 
Art. V. ; Barron v. Baltimore, 7 Pet. , 343 ; Withers v. Buckley, 20 How. 
U. S. Eep. 84 ; Transportation Co. v. Chicago, 99 U. S. Eep. 635, 643 ; 
Kohl V. United States, 91 U. S. Eep. 367 ; Charles Elver Bridge v. 
Warren Bridge, 7 Pick. 344, 445. 



§ 5. J LIMITATIONS. 5 

itor.' The enforcement of this limitation is ordinarily 
elfected throua;h the instrumentality of the courts of 
justice." 

' Bishop Cont. (Enl. Ed.), §§ 1200-1313 ; 1 Sch. Pers. Prop., p. 21; 1 
Whart. Cent., §377 S, 

' 2 Kent Com., pp. 340, 341 (note a); 2 Black. Com., pp. 16, 17, 384, 
885-397 ; 1 Sch. Pers. Prop., p. 35 ; Tiede. R. Prop., § 1 ; McCaU R. 
Prop., pp. 1, a. 



6 CHAEACTEEISTIOS. [ §§ ^j 7. 

CHAPTEE II. 

CHARACTERISTICS OF PERSONAL PROPERTY. 

Section 6. Mobility. 

7. Change from personal to real, and vice versa. 
8 Duration of the time of enjoyment. 

§ 6. Mobility. The leading and an essential charac- 
teristic of personal property, that which distinguishes it 
from real property, is ' mobility. Under this distinction 
it is quite easy to classify all subjects of property that 
are tangible ; but without further instruction the student 
might find difficulty in the case of intangible property, 
of which there is a large class, such as debts, obligations, 
and the like, denominated choses in action. These, in 
contemplation of law, are movable. They are supposed 
to attend the person of the owner, are subject to the 
laws of his domicile in case of intestacy and insolvency, 
and actions concerning them are generally transitory. 

§ 7. Change from personal to real, and vice versa. — 

It should be noticed that, through the operations of 
nature, or the act of man, things immovable in their 
character become movable, so as to change them from 
real, to personal, property, and vice versa. Examples of 
real, changed to personal, property : A tree while grow- 
ing on the land is real property, but when feUed and cut 
into timber or ^vood it becomes personal ; minerals while 
in the earth are part , of the realty, but when quarried 
they become personal property ; and growing fruit trees 
are real property, but their severed fruit is personal. 



§ 8.j DUEATION OF ENJOYMENT. 7 

Examples ot personal, changed into real, property : Build- 
ing materials, which are personal property, when 
wrought into a house become real ; a young tree planted 
temporarily in a nursery is personal property, but when 
sold and transplanted it is converted into real property.' 
Other examples might be given, but these are sufficient 
for illustration. 

§ 8. Duration of the time of enjoyment — But the 

term personal property, at common law, includes more 
than is characterized by the word movable. Duration 
of the time of enjoyment is, in some cases, a determin- 
ing factor in the classification, placing in the general 
division of personal property things immovable in their 
nature. 

In the English law, any interest in the realty less than 
a life estate was classed as personal property. This for 
the reason that under the feudal system personal prop- 
erty was regarded as of small importance compared with 
real estate ; an interest in land limited in duration to a 
determinate period did not rise to the dignity of a free- 
hold, and was consigned to the inferior rank 'of personal 
property. 

In the progress of events, the advance of civilization, 
and the expansion of commerce, there has been a marked 
change in the comparative importance of the two classes 
of property, especially in the United States ; yet the old 
classification remains unchanged at cominon law. Hence 
it is that a life estate in lands and tenements is real prop- 

' 1 Sch. Pers. Prop., pp. 26, 27 ; Crouch v. Smith, 1 Md. Ch. Rep. 
401; Golden v. Glock, 57 Wis. 118; Lewis v. Eosler, 16 West Va. Rep. 
333; Higgins v. Kusterer, 4 Mich.* 318. ' 



8 DUEATION OF ENJOYMENT. [ § §• 

erty, while an estate for years ranks as personal property, 
albeit the years of the latter may far outnumber the 
years of the former. Personal property, then, includes 
two elements, TnoiiUty and dv/ration of the time of 
enjoyment. ' 

' Pom. Mun. Law. §§ 376, 377 ; 3 Black. Com., pp. 385-388 ; 2 Kent 
Com., pp. 341-843 ; 4 Kent Com., pp. 93-95 ; 1 Sch. Pers. Prop., pp. 
87, 28 ; Williams Pers, Prop., pp. 1, 2, and note 1. 



§ 9. J FIXTURES. 9 

OHAPTEK III. 

IRREGULAR SPECIES OF PROPERTY. 

Fixtures. 

Section 9. What are fixtures. 

10. Rules for guidance. 

11. Between what parties. 

12. Time of removal. 

Emblements. 

13. What are emblements. 

14. What products the tenant may remove. 

15. Who, and when, entitled to emblements. 

16. Incidents. 

Heir-looms. 

17. Character, and law of, defined. 

Manure. 

18. When real, and when personal, property. 

Church Furniture. 

19. Law of this species of property. 

Mortuary Property. 

20. Kinds, legal rules, and burial rights. 

There are certain species of property which, for rea- 
sons appearing in this chapter, are irregular in respect of 
classification, and require separate notice. 

1. Fixtures. 

§ 9. What are fixtures They are things which, 

though personal in their nature, may become real prop- 
erty when annexed to, or used in connection with, the 
freehold. They are ambulatorj'^, being sometimes on 
one side of the dividing line between real and personal 
property, and again on the other. On which side of the 



10 FIXTURES. [ § 10. 

line the law will place a thing in a given case may depend 
upon one or more of these conditions : 1, the permanency 
of the annexation; 2, the purpose and use of the thing 
annexed; 3, the intention of the parties; and, 4, other 
circumstances being the same, the turning point may be 
the parties concerned, or, in other words, the parties 
between whom the question is raised.' 

§ 10. Rules for guidance. — The subject of fixtures 
has caused considerable perplexity in the administration 
of the law ; and it is impossible, in a concise discussion, 
to relieve it from all practical difBculties ; but a few rules, 
deduced from the authorities, may be helpful to the stu- 
dent and practitioner. 

1. Annexation to the soil, either actual or constructive, 
is requisite to convert a thing personal in its nature into 
a fixture. Acludl annexation implies physical attach- 
ment to the freehold; constructive annexation is that 
which exists in contemplation of law, where there is no 
actual physical attachment." To the latter kind belong 
things adapted for use in connection with the realty ; 
and things essential to the beneficial enjoyment of the 
premises ; as deeds and other muniments of title, keys, 
fencing materials, family pictures, and other things of 
like character and use. 

' Tiede. R. Prop., §§3-7; ISch. Pers Prop., pp. 135-160: And. L. Diet.. 
"Fixtures;" Bouv L. Diet., "Fixtures;" 3 Kent Com, pp 343-847; 
Williams Pers. Prop., pp. 343-347, and notes ; "Wadleigli v. Janvrin, 
41 N. H. 503 ; Prescott t. Wells, 3 Nev. 83; State v. Bonham, 18 Ind. 
381; Sampson v. Graham, 96 Pa. St. 405 ; TeafiE v. Hewitt, 1 Ohio N. 
S. 511. 

' Tiede R. Prop., § 3 ; 1 Seh. Pers. Prop , pp. 137-189 ; Bouv. L. 
Diet., " Fixtures," sub. 3 ; Williams Pers. Prop., p. 14, n. 1 ; And. L. 
Diet.!, "Fixtures." 



§ 10. J nXTUEES. 11 

2. Asa general rule, things actually annexed, to the 
freehold become part pf the realty ; and they so remain 
when their removal cannot be effected without serious 
injury to the freehold." But, when their reraoval can 
be effected without such injury, there are cases in which 
an nexation does not convert personal into real property. 
For example, where the thing has been annexed for 
the purpose of carrying on a trade ; where it is manifest 
that it is the intention to use the fixture in some employ- 
ment distinct from that of the occupant of the real 
estate; and, generally, when it is clearly the intention 
of the parties concerned that the thing annexed shall not 
become part of the realty. " 

3. In some cases, where the attachment to the free- 
hold is slight, or where things permanently used in con- 
nection with the land are temporarily detached, they 
may be regarded as fixtures passing with the land. For 
example, hop-poles stacked in piles ; rolls in an iron mill 
lying loose in the mill ; and machinery fastened by screws 
to the floor. Here, intention may become an important 
factor in determining the class of the thing in question. 

4. It should be remembered that the common law on 
this subject is sometimes modified by statutory enact- 
ments ; and these must be examined in all cases to which 
they apply. For example, in New York the rule as 
between the heir and the executor is fixed by statute.' 

' Citations supra, under § 9 ; Tayl. Land, and Ten. , § 550 ; Bouv. L. 
Diet , " Fixtures," sub. 3 ; 1 Soh. Pers. Prop , p. 140 ; McCall B. 
Prop., pp. 88-91 ; And L. Diet., " Fixtures." 

' 1 Soh. Pers. Prop., p. 141, and citations supra, undeiif § 9 ; Potter 
V. Cromwell, 40 N Y., 287; McRea v. Central Nat. Bank of Troy, 66 
N. Y., 489; Potts v. New Jersey Arms, etc., Co , 17 N. J. Eq., 395; 



12 FIXTDEES. [§§ 11, 12. 

§ 11. Between what parties. — The question whether 
in a particular case a thing is, or is not, a fixture, and 
also the right of removing the same, may depend for 
solution upon the parties interested. Such parties are, 
1, the heir and the executor; 2, devisees and the execu- 
tor; 3, the executor of the tenant for life, and the 
remainder-man or reversioner; 4, vendor" and vendee; 
5, mortgagor and m ortgagee ; 6, debtor and creditor, 
and the heir or vendee and the widow, in respect to 
premises set off to her for dower ; and, 7, landlord and 
tenant. In the first, second, fourth, fifth, and sixth of 
these classes the general rule is that things firmly annexed 
to the freehold pass with it respectively l3TEe~heir7" 
•devisee, vendee, mortgagee, heir or vendee and the 
widow; and cannot be removed by the other parties. 
While in the third and seventh classes the right of 
xemoval belongs respectively to the executor of the ten- 
ant for Hfe, and the tenant. Especially is the rule against 
removal relaxed in favor of tenants. As between land- 
lord and tenant the prevailing doctrine now is, that the 
latter may remove all fixtures annexed by him for trade, 
agriculture, or domestic use and convenience, when such 
•removal will not result in serious and permanent injury 
to the freehold. ' 

§ 12. Time of removal The right of removing fix- 
tures may be affected by the time of its attempted 
■exercise. 

Hill V. Wentworth, 28 Vt., 438; Henkle v. Dillon, 15 Ore., 610; Smith 
V Waggoner, 50 Wis., 155; McClintock v. Graham, 3 McCord (S. C), 
-553; Ottoman Woolen Mills Co. v. Hawley, 44 Iowa, 57; Bishop v 
bishop, 11 N. Y., 123. 

' Citations supra, under § 9; Despatch Line of Packets v. Bellamy 



§ 13. J EMBLEMENTS. 13^ 

1. A tenant for years may remove them at any time- 
before he yields possession, although he may be holding 
over. But when the landlord has resumed possession the 
fixtures become his property, and the tenant's right of 
removal is gone. 

2. If, on the expiration of his term, the tenant accepts 
a new lease, containing no reservation of the right of 
removal, he thereby loses his right in the fixtures. 

3. Tenants for life or at will, having uncertain inter- 
ests in the land, are permitted to remove their fixtures 
within a reasonable time, after the terniination of their 
tenancy without their own fault. 

4. If the term be forfeited by any act of the lessee,, 
his assignee or sub-lessee has a reasonable time after such 
termination of the lease in which to remove the fixtures. ' 

2. Emhlements. 

§ 13. What are emblements The term is derived 

from the JSTorman French word emblear, meaning to sow ; 
and, in legal terminology, emblements are the annual 
products of the soil, to which the tenant is entitled on 
the termination of his estate, as the result of his own 

Mfg Co., 13 N. H., 305; Dudley v. Hurst, 67 Md., 44; Scheifele v. 
Schmitz, 43 N. J. Eq., 700; Maguire v. Park, 140 Mass., 31 ; Fulling- 
ton V. Goodwin, 57 Vt., 641. 

' Citations supra, under §g 9 and 10; Meigs' Appeal, 63 Pa. St., 38: 
Richard v. Borden, 43 Miss. , 71 ; Eaves v. Estes, 10 Kan. , 314 ; Hol- 
brook V. Chamberlin, 116 Mass., 155; Blanche v. Rogers, 36 N. J. Eq., 
563 ; Hutchins v. Masterson, 46 Tex , 551 ; Hederich v. Smith, 103 
Ind., 303; Smith v. Park, 31 Minn., 70; Marks v. Ryan, 63 Cal., 107; 
Mclver v. Estabrook, 134 Mass., 550; Laughlin v Ross, 45 N. Y., 793; 
Darrah v. Baird, 101 Pa. St., 365; Stansfleld v. Portsmouth, 4 C. B. 
(N.'S.), 119. 



14 EMBLEMENTS. [ § 14. 

rightful care and labor. "While outgrowths of the soil, 
and hence in their nature part of the realty, emblements 
are treated as personal property. The doctrine of 
emblements is founded upon the just principle that a 
tenant, who cultivates and sows the land with a reason- 
able expectation of reaping the harvest, ought to be per- 
mitted to enjoy the fruits of his industry. ' 

§ 14. What products the tenant may remove 

They are the annual products of the sowing or planting 
and cultivation of the tenant, the" outcome of his own 
care and labor. They are characterized by the term 
fructus industriales, in contradistinction to fructus 
nafufal^g.'~"~SF Si rule, only such products of the soil as 
are of annual cultivation arejegarded as emblements; 
but to this rule hops are an exception, and for the reason 
• that, although the product of perennial roots, they 
require annual culture. Cereals and vegetables generally 
are included; while products of spontaneous growth, 
perennial in their nature and not requiring annua l culti - 
vatiQn, such as grasses and trees, are^xcluded? 

But, as to what constitutes emblements the common 
law may be, and sometimes is, varied by local customs, 
and by statutory enactments. The scope of this work 
win not permit a reference to such changes. They are 
not numerous, and the careful student and practitioner 

'Web. Diet. Unab'gd, "Emblement;" And. L. Diet., "Emble- 
ments;" Bouv. L. Diet., "Emblements;" Tiede. R. Prop., §§8, 70; 
1 Washb. R. Prop., pp. 104, 132-137 ; 1 Seh. Pers. Prop., pp. 136-138 ; 
Williams Pers. Prop. (4 Ed.), pp. 17-19, and Am. notes; 4 Kent Com., 
p. 73; Tayl. Land, and Ten , § 534 ; Cooley's Bl., B. II, p. 133, and 
notes 3, 4. 

■' Citations supra, under g 13; Benj. Sales, §§ 120-138. 



§ 15.] EMBLEMENTS. 15 

will here, as in all common law cases, examine the stat- 
utes and adjudications of his own State. 

§ 15. Who, and when, entitled to emblements. — 

1. To entitle one to the crops, they must have been 
sown and planted by himself, and not by another. Cul- 
tivation and CEire of the crops will not alone confer upon 
the claimant the right of removal, where the sowing or 
planting was done by another. " In such case one may 
not reap where another has sown. ' 

2. The right belongs only to a tenant whose estate 
was of uncertain duration. Included in this class are 
tenants for life, and their representatives. Tenants at 
will, also, have the right; but not tenants for years, or 
tenants at sufferance. The distinction between certain 
and nncertain tenancies is based upon the doctrine that 
it is unwise for the tenant to sow with full knowledge, 
or a reasonable probabilitj^, that he cannot reap, by 
reason of the termination of his tenancy before the time 
of harvest.' 

3. As the reason of the rule does not apply to a case 
where the estate of the tenant has terminated unexpect- 
edly, and without his fault, the rule does not apply. 

'Tiede. R. Prop., § 70 ; 1 Sch. Pers. Prop., p. 128; 1 Washb: R. 
Prop., p. 103; Grantham v. Hawley, Hob,, 132; Gee v. Young, 
Hayw., 17; Price v. Pickett, 21 Ala., 741; Thompson v. Thompson, 6 
Munf.,514. 

' Tiede. R. Prop., §§ 8, 70, 71; Tayl. Land, and Ten., § 534; 3 BI. 
Com., pp. 145, 146, 122-134; 4 Kent Com., p. 110; Co. Litt., 56; Chel- 
■sey V. Welch, 37 Me., 106; Kittredge v. Woods, 3 N. H , 508; Whit- 
marsh V. Cutting, 10 Johns., 360; Graves v. Weld, 5 B. & Ad., 105; 
Kingsbury v. Collins, 4 Bingh., 209; Mason v. Moyers, 3 Rob. (Va.), 
•606; Morgan v. Morgan, 65 Ga., 495 



1 6 EMBLEMENTS. [ § ^ 5. 

But if the estate terminates through the fault of the ten- 
ant, he loses his right to emblements.' 

4. As between the executor of the tenant in fee and the 
heir, the former is entitled to the crops if they are ripe 
for harvest. And the right to emblements extends to 
assignees, and sub-lessees, except when the tenant is 
restricted from aliening the land. ' 

5. When the owner sows the land, and then conveys 
it away, the title to the crops passes to the vendee by 
the conveyance ; and the vendor's executors and admin- 
istrators have no interest in either land or emblements. 
So, also, emblements pass by devise of the land, and by 
the conveyance of a reversion subject to an existing par- 
ticular estate.' 

6. A mortgagee, as against the mortgagor and his 
grantees, has the paramount right to the emblements.* 
But a foreclosure after the crops , are severed carries no 
interest in them to the mortgagee or purchaser.' It is 

> 1 Soh. Pers. Prop., pp. 127-129; 2 Kent Com., p. 73 ; Tayl. Land, 
and Ten., § 535; Debow v. Colfax, 5 Halst., 411 ; Eeeder v. Sager, 70 
Id, 180. 

' Tiede. R Prop., § 71; Penhallow v. Dwight, 7 Mass., 34; Kingsley 
V. Holbrook, 45 N. H., 319; Howe v. Batchelder, 49 N. H., 319; Pat- 
tison's Appeal, 61 Pa. St., 29; Doe v. Mace, 7 Black., 2; Tobey v. 
Reed, 9 Conn., 216; Cooper v. Davis, 15 Conn., 556; McCall v. Lenox, 
9 Serg. & R., 302; Allan v. Carpenter, 15 Mich., 88; Jones v. Thomas, 
8 Blackf , 428. 

8 1 Sch. Pers. Prop., p. 130; 1 Washb. E. Prop., p. 104; 1 WiUiams 
Ex'rs, p. 674; Foote v. Colvin, 8 Johns., 216; Burnside v. Weight- 
man, 9 Watts, 46; Cooper v. Woolfitt, 2 Hurl. & N , 122 

* Tayl. Land, and Ten., § 537; Tiede. R. Prop , § 71; Lane v. King, 
8 Wend., 584; 1 Sch. Pers, Prop., p. 133; 1 Washb. R. Prop., p. 106; 
Howell V. Schenck, 4 Gabe, 89. 

» 1 Sch. Pers. Prop., p. 133; Buckout v. Swift, 27-Ca]., 438; Coding- 
ton V. Johnstone, 1 Beav., 520. 



§ 16. J EMBLEMENT!!. 17 

held by some authorities that, if tho purchaser under a 
foreclosure sale permit the mortgagor, or one claiming 
under him, to retain possession and plant crops, the lat- 
ter will he entitled to them. ' But, on this point, there 
does not seem to be entire unanimity of judicial opinion. ' 
7. The doctrine of emblements has no application to 
the public lands of the United States.' 

§ 16. Incidents. — 1. As a rule, the tenant or his 
representative, when entitled to emblements, has a right 
to enter upon the land after the termination of the ten- 
ancy, for the purpose of taking necessary care of the 
growing crop, and harvesting and removing it when 
ripe. But this right is limited to what is reasonably 
requisite for the purposes, and must not be abused.' 

2. An agreement for a transfer of the property in 
something that is attached to the soil, as growing crops, 
or trees, but which is to be severed from the soil before 
delivery to the purchaser, is a sale of personal property. " 

Z\ Growing crops of the speoies/rt<c^w vndustrialesaxe 
subject to levy and sale by execution as personal property .' 

' Doe V. Mace, 7 Black., 3; Tobey v. Eeed, 9 Conn., 216; Cooper v. 
Davis, 15 Conn., 556; McCall v. Lenox, 9 Serg. & E., 302 ; Jonea v. 
Thomas, 8 Blackf., 428. 

2 Mayo V. Fletcher, U Pick., 525; Lynde v. Rowe, 13 Allen, 101; 
Lane v. King, 8 Wend., 584. 

» Rogers v. Williams, 5 Mo., 335; Rasor v. Quails, 4 Blackf., 286. 

*Tiede. R. Prop., §70; 1 Sch. Pers. Prop., p. 131; 1 Washb. R. 
Prop., pp. 105, 136, 137; 1 WiUiams Ex'rs (6 Ed.), p 679; Co. Litt., 
56a; Handson v. Porter, 13 Conn., '59; Forsythe v. Price, 8 Watts, 
383; Humphries v. Humphries, 3 Ired., 363. 

5 Benj. on Sales (Ed. 18-8), § 118, and Am. Notes to §§111-133. 

» Smith's Sherf. and Cons., pp. 333, 324; Caldwell v. Fifield, 24 N. J. 
L., 150; Parham v. Thompson, 3 J. J. Marsh. (Ky.), 306; Craddock v. 
2 



18 HEIE-LOOMS, [ § 1^- 

3. Seir-looms 

§ 17. Character and law of, defined. — Law writers 
and philologists do not agree as to the etymology of the 
word heir-loom. By some it is thought to be composed 
of ' ' heir ' ' and ' ' loom, ' ' the latter word originally mean- 
ing a loom to weave in, which descended to the heir ; 
and that the composite, by use and accommodation, has 
grown to embrace many other things. Others regard 
the termination loom as of Saxon origin, in which lan- 
guage it signified a lirrib or member, giving to heir-loom 
the signification of a hmb or member of the inheritance. 
Others, stiU, derive loom from the Saxon ' ' loma, ' ' or 
' ' geloma, ' ' which signifies household stuff, and this with 
the English word heir makes heir-loom, meaning such 
utensils and other things as go to the heir. ' 

The etymology, however, is of very little practical 
importance. Heir-looms are a species of property, per- 
sonal in their nature, which, by force of special custom, 
or because they are essential to the completeness and 
full enjoyment of the freehold, are treated as real 
property, and descend to the heirs with the inheritance. ' 

In respect of usefulness to the enjoyment of the free- 
hold, heir-looms rest upon the same basis of reason as 
the class of fixtures which are not physically annexed to 

Riddlesbarger, 3 Dana (Ky.), 206: Penhallow v. Dwight, 7 Mass., 34 ; 
Hart well V. Bissell, 17 Johns., 128; Hare v Pearson, 4 Ired. (N. C), 
L., 76; Shannon v. Jones, Id , 206 ; Salsbury v. Parsons, 43 Hun, 12; 
Favorite v. DeardoflE, 84 Ind., 555. 

' Bouv. L. Diet "Heir-loom;" And. L. Diet., "Heir-loom;" Webster's 
Diet, (unab'gd), "Heir-loom;" 1 Seh. Pers. Prop., p. 117; 2 Blaek. 
Com., p. 428. 

• Cooley's Bl., B. H, pp. 427-439, n (9); Williams Pers. Prop., pp. 
18, 14; 1 Seh! Pers. Prop., pp. 117-122; Co. Litt. 185. 



§ 17. J HEIE-LOOMS. 19 

the soil ; and the fact that the same things are, by some 
text-writers, assigned to both kinds of property indis- 
criminately, and without explanation, tends to confusion 
in the minds of students. 

As examples of heir-looms mentioned in text-books 
are, among other things, ancient jewels of the British 
crown; the coat of arms of an ancestor hung in the 
church, and his sword and insignia of rank; ancient 
portraits and family pictures in a house; conies in a 
warren, and doves in a dove-cote; fish in an artificial 
pond ; deeds and other muniments of title, together with 
the chest or box in which they have usually been kept ; 
and the keys of a house. 

It win be noticed that some of these things are also 
classed with fixtures by text-writers. They are classed 
with heir-looms for the same reason that they are treated 
as fixtures, namely, on account of their special relation 
and importance to the free-hold ; while those not placed 
in both classes are regarded in law as heir-looms in obedi- 
ence to special custom. Among these are some things 
not essential to the fuU enjoyment of the free-hold.' 

It may be noticed in passing that heir-looms do not pass 
by devise or bequest, separate from the freehold ; and 
this for the reason that a will does not take effect tiU 
after the death of testator ; whereas the realty, including 
everything that goes with the land, passes to the heir 
simultaneously with the passing of the breath from the 
body of decedent, vests instantaneously in the heir, and 
thus takes precedence of the devise or bequest.' 

' See ciliations «wpra,yyaAsx § 17. 

» 1 Sch. Pers. Prop., p. 118; 2 Black. Com., p. 429; Co. litt. 185 6; 
1 Williams Ex'rs (6 Eng. Ed.), 681. 



20 MANUEE. [ § 18. 

4. Manure. 

§ 18. When real, and when personal, property — 

As a general rule, in this country, manure made upon 
the farm by consumption of its products is real property. 
And, in the interest of good husbandry, which requires 
that manure made from the products of the land shall be 
used to renew and enrich the soil, the rule has been 
established that, when a farm is leased for agricultural 
purposes, the manure made upon it the last year of the 
term shall be left by the out-going tenant. Local or 
neighborhood custom may, however, affect the question 
in some cases ; but with no particular agreement in such 
leases in regard to the manure, it belongs to the farm, 
and not to the tenant. He has no right to remove it, or 
dispose of it to others, so that it shall not be used on the 
farm. But, if the manure be made from products pur- 
chased elsewhere and brought to the land by the tenant, 
as in case of a livery stable, it is personal property, and 
belongs to the tenant with the right of removal ; and is 
subject to aU the incidents of personal property. ' 

It is held in one case that, manure left in the street 
belongs originally to the owners of the animals that 
dropped it, but is to be regarded as abandoned property. 
Being abandoned property, the first taker has a right to 

'Tiede. R. Prop., §2; Tayl. Land, and Ten., §541; McCall Real 
Prop., p. 90; Bouv. L. Diet., "Manure;" Goodrich v. Jones, 2 Hill, 
142; Parsons v. Camp, 11 Conn., 525; Perry v Carr, 44 N. H , 122; 
Fay V. Muzzy, 13 Gray, 53; Witherby v. Ellison, 19 Vt., 379; Middle- 
brook v. Corwin, 15 Wend., 169; Daniels v. Pond, 1 Pick., 371; Las- 
sell V. Reed, 6 Greenl., 322; Lewis v. Jones, 5 Harris, 226 ; Snow v. 
Perkins, 60 N. H., 493; s c, 49 Am. Rep., 333; Plumer v. Plumer, 30 
N. H., 558 ; And. L. Diet., "Manure." 



§ 19.] CHTJEOH FUEimUEE. 21 

appropriate it ; and after one has gathered it into heaps 
he must be regarded as entitled to it, against any person 
having no title, and must be allowed a reasonable time 
to take it away. It cannot be regarded as real estate. ' 

5. Church Furniture. 

§ 19. Law of this species of property As a general 

rule, both in England and in this country, pews are 
regarded as part of the realty. But in some of, our 
States they are made personal property by statute." 
The pew-holder has, as a rule, the exclusive right to 
occupy his pew ; and he may maintain an action of tres- 
pass against any one who, without lawful authority, dis- 
turbs him in his seat.' But, as against the society or 
cor])oration, the interest of the pew-holder in his pew is 
not absolute, but qualified and conditional. It is usu- 
fructuary merely, consisting in the right of occupancy 
upon occasions of public worship.* The right of occu- 

' Halsen v. Lockwood, 37 Conn., 500. 

'.Cooley's Bl. B. II., p 439 n. (2); 1 Washb. R. Prop., p. 9; 2 Pottpr 
Corp., § 603; Bouv. L Diet , "Real property," sub. 6. and "Pews:" 1 
Sch. Pers. Prop., pp. 158, 1.^9: Baptist Ch. v. Bigelow, 16 Wend., 28; 
Viele V. Osgood, 8 Barb., 130; St. Paul's Ch v. Ford. 34 Barb., 16; 
Bates V. Soarrell, 10 Mass., 832; Hodges v: Green, 28 Vt., 358; And. 
L. Diet., "Church," "Pew." 

'Gray v. Baker, 17 Mass , 435;' Gorton v. Hadsell, 9 Cush., 508; 
Shaw V Beveridge, 3 Hill, 26; O'Hear v. Goesbriand, 33 Vt., 593, and 
citations last supra. 

* Wheaton v. Gates, .18 N. Y., 895; Cooper v. Presb. Ch.. 32 Barb., 
222; White v. Methodist Epis. Ch., 3 Lans., 477; Abernethy v. Ch of 
the Puritans, 3 Daly-, 1; Howe v. Stevens, 47 Vt., 263; Sohier v. 
Trinity Ch., 109 Mass., 1; Union Meeting House v. Rowell. 66 ile., 
400; Gay v. Baker, 17 Mass., 435; Daniel v. Wood. 1 Pick., 102; Kim- 
ball v. Rowley, 24 Pick., 347; Presb. Ch. v. Andrus, 1 Zabr., 325; 



22 MOETUAET PEOPiCETT. [ § 20. 

pancy must yield to circumstances of necessity or expedi- 
ency, growing out of the rights in common of the 
society; and if the trustees, or other authorized officials, 
make such changes in the edifice as the necessities or 
interests of the society demand, and thereby destroy the 
owner's pew, he must be content with adequate compen- 
sation.' But, it would seem, that, should the church 
edifice become useless by dilapidation or other cause, and 
have to be rebuilt, the right of. the pew-holder to his 
pew, and to compensation as well, would be gone." 

Bells, organs, furnaces, stoves and pipes, may, by 
their use or placing, become real property or fixtures. ' 

6. Mortuary Property. 

§ 20. Kinds, legal rules, and l)urial rights. — The 

grant of a burial lot in a churchyard, or public cemetery, 
though in terms a conveyance of the fee, is, generally, 
an easement merely. It wiU be protected from disturb- 
ance, and the rights of the owner for burial purposes 
secured to him, while the place continues to be used as a 
burial ground, but the grant of a burial lot in a church- 

Kincaid's Appeal, 66 Pa. St., 411; Ex parte Brick Presb. Ch., 3 Edw. 
Ch. 155. 

' Wentworth v. First Parish, 3 Pick., 344; Cooper v. Presb. Ch., 
33 Barb., 223; Heeney v. St. Peter's Ch., 2 Edw. Ch 608 ; Fassett v. 
Boylston, 19 Pick., 361; Jones v. Towne. 58 N. H., 462. 

' Voorhes v. Presb. Ch., 17 Barb., 103; Howard v. First Parish, 7 
Pick., 138; Van Houten v. Reformed Dutch Ch., 2 Green. (N. J.), 
126; KeUogg V. Dickinson, 18 Vt., 266; Gorton -7. HadseU, 9 Cush., 
508. 

' 1 Sch. Pers. Prop., p. 159: Congregational Society v, Fleming, \t 
Iowa, 533; Rogers v. Crow, 40 Miss., 91. 



§ 20. J MOETUAET PEOPEETT. 23 

yard will not empower the grantee to prevent a sale of 
the church property ; and in all cases his right must yield 
to public necessity.' 

Yaults and monuments erected upon a lot in a public 
cemetery, and decorations of the grave, are the personal 
property of the holder of the lot, and he may remove the 
same at his pleasure.' 

"While a corpse, in the strict sense of the common law, 
is not the subject of property, there is in it a quasi prop- 
erty which confers upon the relatives of the deceased the 
rights of custody and control ; which rights the courts 
will protect. And the person having charge of the body 
holds it as a sacred trust for the benefit of all who may, 
from family ties or friendship, have an interest in it; 
which trust a court of equity wiU regulate and enforce. * 

The doctrine is quite generally laid down in the books, 
without qualification, that in the absence of any testa- 
mentary directions on the part of the deceased, the right, 
and place, of burial belongs exclusively to the next of 
kin.* If, by the term " next of kin," as thus used, hus- 
band and wife are to be excluded, it may well be doubted 
whether there should not be a qualification of the broadly 

' Richardson v. Dutch Ch., 33 Barb., 43; Ex parte Reformed Presb. 
Ch.', 7 How. Pr. R , 476; Windt v. German Reformed Ch., 4 Sandf. 
Ch., 471; Page v. Symonds, 63 N. H., 17 ; Buffalo City Cemetery v. 
Buffalo, 46 N.y., 503. 

« Partridge v. First, etc., Ch., 39 Md., 631; Kincaid's Appeal, 66 
Pa St., 411;-Snyder v. Snyder, 60 How. Pr., R. 368. 

» Griffith v. Charlotte, etc , R. R. Co., 23 S. C, 25; s. c. 55 Am. 
Rep. 1; Guthrie V. Weaver, 1 Mo. App., 136; Pierce v. Proprietors, 
etc., 10 R. I., 227; Snyder v, Snyder, supra ; Bogert v. Indianapolis, 
13 Ind., 134. 

*Law of "Burial," 4 Bradf. Surr. R., 503-532; And. L. Diet., 



24 MOETUAKT PEOPEETT. [ § 20. 

stated doctrine in their favor.' In case of disagreement 
among relatives in regard to the burial, the court wiU 
determine the matter upon equitable grounds.' 

"Burial;" Tyler's Ecc. Law, § 971; Moak's Eng. Eep , vol. 12, p. 656; 
Wynkoop v. Wynkoop, 43 Pa. St., 293; Rosseau v. City of Troy, 49 
How. Pr. R., 492. 

' Johnston V. Marinus, 18 Abb., N. C, 72, and Appendix to same, 
p. 75; Secor v. Secor, 18 Abb. N C, 78, n ; Snyder v. Snyder, supra. 

' Weld V. Walker, 130 Mass., 422; s. c. 39 Am. E., 465; Peters v. 
Peters, 43 N. J. Eq., 140; Snyder v. Snyder, supra. 



§ 21. J CHATTELS, REAL, AND PEESONAL. 25 



CHAPTER lY. 

NOMENCLATURE, AND SUBORDINATE DIVISIONS, OF PER- 
SONAL PROPERTY. 

Section 21. Chattels, real, and personal. 

22. Choses in possession; choses in action. 

23. Estate, real and personal. 

24. Goods, wares, merchandise, effects, credits. 

25. Personal property in expectancy. 

§ 21. Chattels, real, and personal. — The term chat- 
tel, according to Blackstone, is derived from the techni- 
cal Latin word catella, which primarily signified beasts 
of • husbandry, cattle ; but which, by accommodation, has 
a wider application, including every species of property 
which is not real estate, or a freehold. 

It is a fact of historic interest to the student, that 
anciently property was not, as at present, nominally 
divided into real and personal, but into lands, tenements, 
and hereditaments on the one hand, and goods and chattels 
on the other. This division and nomenclature was the 
outgrowth of the feudal system ; and it will be remem- 
bered that, under the proprietary rights and social con- 
ditions of that system, goods and chattels were regarded 
as constituting an inferior, and a comparatively unim- 
portant, class of .property. 

In the course of time certain estates and mterests in 
land grew up which had no existence under the ancient 
feudal system ; notably, leases for years. To these the 
feudal rules concerning the realty did not apply ; and. 



26 OHOSES IN POSSESSION, ETC. [ § 22. 

moreover, being regarded as inferior in character and 
value to lands held under the feudal tenure, they were 
assigned to the rank and class of goods and chattels. 
But, as leases for years, and other interests of a like 
nature, are in fact interests in land, they are denominated 
chattels real, to distinguish them from property personal 
in its nature, all species of which are embraced in the 
term chattels personal. 

Chattels real, then, may be defined briefly as such 
interests as are annexed to, or concern, real estate; 
chattels personal, such things as are movable, annexed to 
or attend the person of the owner. It will be seen that 
the present general division of property is into real, and 
personal; and that the term chattel is equivalent to 
the term personal property, including every species of 
property not embraced in the division termed indifferently 
real property , or real estate.^ 

% 22. Choses in possession ; choses in action. — The 

word ' ' chose, ' ' which is a contribution from the French, 
means a thing ; and in our law it is applied to personal 
property. According to Blackstone, a chose or thing 
in possession ' ' subsists there only, where a man hath both 
the right, and also the occupation, of the thing ;" while a 
chose or thing in action, is " where a man hath not the 
occupation, but merely a bare right to occupy the thing 
in question; the possession whereof may however be 
recovered by a suit or action at law ; from whence the 
thing so recoverable is called a thing or chose in action. ' ' 
Mr. Schouler, in his learned treatise on personal prop- 

' 2 Black Com. p. 385; 2 Kent Com. p. 341; 1 Sch. Pers. Prop. pp. 
39, 45; Williams' Pers. Prop. p. 2; Bouv. L. Diet. " Chattels." 



§ 22. J CHOSKS IN POSSESSION, ETC. 27 

erty, suggests that these terms are calculated to mislead ; 
that "they do not intend just what they appear to 
express;" and that Blackstone "confounds two senses 
of the word ' property, ' the one signifying the thing 
possessed, the other the right of possessing. ' ' He thinks 
a general division of property into things corporeal and 
things incorporeal would be preferable to the ordinary 
classification of the common law. However this may 
be, the classification generally adopted, and thoroughly 
incorporated into the law of personal property, is suffi- 
ciently accurate for the purpose, and quite consonant 
with the plan, of this work, which is to present a clear 
and succinct statement of the law as generally laid down 
by text writers, and recognized by the courts ; and not 
to make law, or to enter upon philosophical discussion. - 

Adopting, then, the ordinary divisions and nomencla- 
ture, choses in possession are things in which the right of 
property, and the occupancy, unite in the same person ; 
while choses in action are things in which a person has 
the right of property, but not the occupancy, possession 
being recoverable by an action at law ; hence the signifi- 
cance of the designation, choses m action. 

The latter division covers a broad field, including a 
great variety of subjects of personal property. ' ' It 
embraces," says Chancellor Kent, " the most diif use, and 
in this commercial age, the most useful learning of the 
law. By far the greater part of the questions arising in 
the intercourse of social life, or which are litigated in 
the courts of justice, are to be referred to this head of 
personal rights." ' 

» 1 Black Com. p. 397; 3 Kent Com. p. 351; 1 Sch. Pers. Prop. pp. 33- 



■28 ESTATE, EEAL AND PERSONAL. [ § 23. 

§ 23. Estate, real and personal. — The term "estate," 
— in Latin sto^ws, — is derived from sta/re, to stand, meaning 
the fixed condition of anything or person. Applied to 
law, it signifies the condition or circumstances in which 
the owner stands in relation to his property. The term 
' ' estate ' ' is properly applicable only to real property. It is 
indigenous to the feudal system, under which absolute 
■ownership is unknown, an estate being aU that can be 
held or enjoyed by the tenant. 

By the English common law, aU lands were held, 
•either mediately or immediately of the crown, the king 
being called lord paromiount. This is, in brief, the 
feudal tenure, by which all lands in England are held ; 
but which, with few exceptions, does not exist in the 
United States. True, it is maintained by jurists of 
repute, that there cannot be an absolute ownership of 
lands in any system of jurisprudence, and that in this 
■country the ultimate absolute ownership vests in the 
:state. On the other hand, it is insisted hj high authority 
that, while in the United States lands pass to the state 
in case of forfeiture and escheat, this does, not constitute 
the feudal relation proper, but results from the attributg 
■of sovereignty in the body politic. 

In this country, generally, lands are allodial, not 
feudal in character or tenure. 

The distinction between the two systems is, in brief, 
this : under the feudal tenure, the absolute ownership of 
land, the dominium, directum, is in one man, while the 
.actual possession and profitable use, the dominium utile, 

40, 76, 86; Bouv. L. Diet. " Choses in Action ;" Williams' Pers. Prop. 
;pp. 4^1, 63; Pom. Mun. Law, §§ 779-781. 



§ 24.] ESTATE, GOODS, WARES, ETC. 29' 

is in another; whereas, under the allodial system the 
ownership and use, the dominium directum and the 
dominium utile, unite in the same person. 

While, however, the term ' ' estate, ' ' in its original 
and proper use, applies only to real property, it is fre- 
quently employed to designate personal property. 
Especially is this true in testamentary instruments and 
law, and in bankrupt and insolvent law. "All my 
estate, real and personal," is a phrase often found in 
wills, and sometimes in other written instruments. The 
term "estate" alone is sometimes used to cover both 
real and personal property ; and sometimes to cover real, 
or personal, property only ; depending in each case upon 
intention, which must be sought by the rules of interpre- 
tation and construction. 

As, under the feudal system, estates or interests in 
land may be absolute or qualified, so when the term 
"estate" is applied to personal property, it may repre- 
sent an absolute, or a qualified interest.' 

§ 24. Goods, wares, merchandise, effects, credits 

The word "goods" applies to personal property, and 
when not joined to other substantives, is generally held 
to be more limited in its scope than the word "chattels," 
embracing inanimate objects only. It should be noticed, 
however, that in wills it may embrace all the personal 
property of the testator, animate and inanimate, corporeal 
or incorporeal ; depending for scope and significance in 

' Bouv. L. Diet. " Estate," "Allodium;" WiUiams' Pers Prop. pp. 
7, 8, 259, 206; Pom. Mun. Law. §§ 378-385, 484, 485, 842, 843; Tied. 
Eeal. Prop. §§ 19, 25; 8 Kent Com. pp. 513, 514; Goodeve Pers. Prop, 
p. 3; Dayt. Surr. p. 233; Van Rensselaer v. Dennison, 35 N. Y., 393. 



30 WAEBS, EFFECTS, OEEDITS. [ § 24. 

every case upon the context and construction of the 
instrument. 

The terms " wares " and " merchandise," when stand- 
ing by themselves, require no explanation. In the Eng- 
lish Statute of Frauds the phrase ' ' goods, wares, and 
merchandises ' ' is employed, and like words are found in 
our American statutes. As thus employed, these terms 
have been under judicial consideration, both in England 
and in this country ; and the result shows some contra- 
riety of judicial interpretation. While generally held to 
be very comprehensive in their scope, embracing all cor- 
poreal movable property, these terms, it is held by some 
courts, do not embrace all kinds of personal property. 
The' prevailing doctrine of the English authorities is, 
that these words comprehend only corporeal movable 
property ; while the American authorities generally adopt 
a more liberal construction, including incorporeal prop- 
erty, choses in action, as well. But the courts in our 
States are not in full accord in regard to the interpreta- 
tion of this statutory phrase.' 

The term ' ' effects ' ' is often used to designate personal 
property, and generally has a broader signification than 
the term ' ' goods. " In a wUl it may carry the whole of 
a testator's personal estate, depending upon intention as 
determined by judicial construction. 

The word ' ' credits ' ' applies to debts due, money 
demands, and to aU choses in action.' 

' Bouv. L. Diet. " Goods," " Merchandise," " EflEects," " Credits;" 
1 Sch. Pers. Prop. pp. 39, 40, 86, 87; Benj. on Sales, pp. 105, 118; Am. 
Notes, §§ 111-133; Bishop Con. (Enl. Ed.) § 1315; 3 Pars. Con. (7 Ed.) 
pp. 49-51. 



§ 25.] • m EXPEOTANOY. 31 

§ 35. Personal property in expectancy. — Contrary to 
the ancient common law doctrine, it is now well estab- 
lished that there may be an interest in expectancy in per- 
sonal property That is to say, one person may have 
the right of possession and the usufruct for a term of 
years, or for life, while another at the same time has a 
reversion or remainder in the same property. 

It should be noticed, however, that the rule against 
perpetuities is made applicable to personal property. 
The subject is regulated by statute in some of our States. 
For instance, New York has the following provision : 
"The absolute ownership of personal property shaU not 
be suspended by any limitation or condition whatever, 
for a longer period than during the continuance and until 
the termination of not more than two lives in being at' 
the date of the instrimient containing such limitation or 
condition ; or if such instrument be a wiU, for not more 
than two lives in being at the death of the testator. ' ' ' 

' Sch. 1 Pers. Prop. pp. 161-185; Williams' Pers. Prop. pp. 260-262, 
and n. 1; 2 Kent Com. pp. 353-354; R. S. of N. Y. (Banks & Bro. 8 
Ed.) vol. rV, p. 2516. 



32 JOINT OWNERS. [ § 26. 

CHAPTEE Y. 
PERSONAL PROPERTY, HOW HELD OR OWNED. 

Section 26. Joint owners. 

27. Ownership in common. 

28. Part-owners of ships. 

29. Partners. 

30. Corporations. 

31. Joint-stock companies. 

§ 26. Joint owners. — Ownership in severalty requires 
no discussion, the expression itself being plainly sig- 
nificant, and fully characteristic. Joint ownership is 
more complicated in its nature. It exists where two or 
more are joined in the ownership of the same property 
by fqjir unities, namely, title, time, interest, and pos- 
session. Unity of title signifies that the title of all the 
joint owners accrued under one and the same instrument, 
or was created by the same act on the part of the vendor 
or donor. Unity of time requires that the interest of 
each should have vested at the same moment. Unity of 
interest imphes that the interest of each in the property 
is the same in quantity, and for the same duration. Unity 
of possession means that each of the owners has an undi- 
vided possession of each entire part, and also of the 
whole. In ancient technical expression, each is possessed 
'■'■ fer my et per tout.''^ But as to unity of time, the case 
of joint ownership created by will is an exception. 

To the relation of joint ownership, thus created, cer- 
tain important rules appertain, which must not be over- 
looked. 



§ 26.] .lOI-XT OWXKKS. 33 

First. The right of survivorship, the jus accrescendi. 
That is, in case of the death of one joint owner, the sur- 
vivor or survivors "will take the entire interest in the 
property, unaffected by any disposition the deceased joint 
owner may have made by his will, if there had been no sev- 
erance of the joint ownership in the lifetime of the parties. 

To the right of survivorship, however, an exception 
has been made in favor of trade and agriculture, in cases 
of partnership and joint undertaking in these branches 
of commerce and industry, in which cases the interest of 
a deceased joint owner vests in his executors or adminis- 
trators. 

The operation of survivorship in diverting the interest of 
a deceased owner from his next of kin, to whom it natur- 
ally belongs, is generally regarded as unreasonable and 
unjust, and hence is not favored by courts or legislatures. 
Numerous statutes have been passed providing in effect, 
that where property is given or sold, granted or devised, 
to two' or more persons without words expressly, or by 
necessary implication, creating a joint tenancy or owner- 
ship, it shall be held to constitute a tenancy or owner- 
ship in common, rather than a joint tenancy or owner- 
ship. And, in the absence of legislation on the subject, 
courts generally incline to a construction of instruments 
that will establish a tenancy or ownership in common, 
in preference to a joint tenancy or ownership. 

But the doctrine of survivorship is well adapted to ex- 
ecutors, administrators, trustees, and others acting in a 
fiduciary capacity, who have the legal title, biit no equit- 
able interest in the property ; and hence they are gener- 
ally held and treated as joint owners. 
3 



34 JOINT OWNEES. [ § 26. 

Second. As between themselves, each of the joint 
owners is entitled to an equal share of the rents, income, 
and profits, during his life ; and, as a logical result of this 
rule, if one receives more than his share, the others have 
an action against him to recover the excess. 

Thi/rd. From the unity of possession, each owner 
having an undivided possession of each part as well as of 
the whole, it follows that the possession of one is the 
possession of all. Hence the rule, that one cannot main- 
tain an action against his co-owner for the possession ; 
but in case of a wrongful conversion of the property by 
one, the others may maintain an action against him 
for damages. 

Fourth. Joint ownership in personal property may 
be severed by agreement of the parties, by act of one in 
disposing of his interest, by a decree of a court of 
equity, and, as some authorities hold, by levy and sale 
of the interest of one under an execution ; but as to the 
latter mode of severance there might, in some cases, be 
serious practical difficulty as each joint owner is entitled 
to the possession of the whole property. In case of 
more than two joint owners of the same property, if the 
interest of one pass to a third party, the latter will 
become an owner in common, to the extent of such 
interest, with the remaining joint owners, who wiU 
continue joint owners as between themselves. ' 

' WiUiams' Pers. Prop. pp. 303-306; 1 Sph. Pers. Prop. pp. 186-193, 
195; 3 Bl. Com. p. 399; 2 Kent Com. p. 351; 4 Id. pp. 363, 364; Davis v. 
Lottich, 46 N. Y., 393; VanDoren v. Baity, 11 Hun, 339; Anderson v. 
Sohulze, 64 Wis., 460; Gates v. Fraser, 9 Dl. App., 634; Taylor v. CoX, 
3 B. Mon (Ky.), 439; Southworth v. Smith, 37 Conn., 355; Terrell v. 
Martin, 64 Tex., 131; Franklin Sav. Inst. v. People's Sav. Bank, 14 E. 



§ 27.J OWNERSHIP IN COMMON. 35 

§ -iT. Ownership in common. — In analogy to a ten- 
ancy in common of real estate, ownership of personal 
property is constituted by one unity, that of possession. 
Some or all the other unities essential to joint ownership, 
title, time, and interest, may be wanting; yet, if the 
several parties in interest have a united possession they 
are owners in common, or, as the relation is generally 
exjpressed, tenants in common. The titles of the respec- 
tive owners may have come from different sources, and 
have vested at different times, and their interests may be 
unequal, stUl, if united in possession, they will be tenants 
in common ; but, in the absence of this unity, whatever 
else their relations or interests may be, they will not be 
owners in common, for unity of possession is absolutely 
essential to this kind of ownership. The owners are 
interested, in legal technics, '^per tout, et non per my,^^ 
each in contemplation of law, having a separate owner- 
ship in the whole of his own share whatever it may be, 
and not, as in joint tenancy, an undivided interest in 
each part as well as in the whole. The unity of posses- 
sion consists in a combination of the respective units of 
the several owners, the share of each measuring his 
interest in the common property. 

The doctrine of survivorship does not apply to owner- 
ship in common, but on the death of one his interest 
passes to his executors or administrators." 

I., 632; Waldman v. Broder, 10 Cal., 378; Buck v. SpoflEord, 31 Me.. 
34; Brinley V. Kupper, 6 Pick., 179; Stone v. Aldrich, 43 N. H., 53; 
Postell V. Skirling, Desaus. (S. C.) Eq., 158. 

' 1 Sch. Pers. Prop., p. 193, et seq.; Williams' Pers. Prop., p. 306 ; 
Will. Real Est., pp., 184, 185; Beaumont v. Crane, 14 Mass., 400; 
Knox V. Campbell, 1 Pa. St., 866; Welch v. Sackett, 12 Wis., 343; 



36 OWNEKSHIP IN COMMON, [ § 27. 

,.;' The principal incidents of ownership in common are : 

i First. The possession of one is the possession of all, 

and aU are equally entitled to possession. ' 

Second. One cannot maintain an action against his co- 
tenant to recover possession of the common property ; 
but he may have an action of tort against him for its 
conversion or destruction. " 

Third. The interest of one is subject to levy and sale 
by execution for his debts; but if the officer sell the 
whole property, and not merely the interest of the judg- 
ment debtor, he wiU be liable to an action by the other 
co-owner for his undivided interest. 

Fourth. One owner in common of chattels may recover 
from another any money properly expended on it beyond 
his due proportion ; but there must have been a previous 
request to join in making the necessary repairs, unless 
there exist some agreement or prescription binding either 
party exclusively to make repairs. ' 

Fifth. Where personal property in common bulk and 
of the same quality, severable in its nature, is owned by 
two or more persons in common, each may sever and 

Btessing v. House, 3 Gill. & J., 390; Brown v. Graham, 34 HI., 638; 
Berneoker v. MiUer, 40 Mo., 473. 

' References last supra; Williams v. Watkins, 3 Pet., 51; Strong v. 
Colter, 13 Minn., 83; Southworth v. Smith, 37 Conn., 355. 

' Dain v. Cowing, 33 Me., 347; Leonard v. Scarborough, 3 Ga., 73; 
Weld V. Oliver, 31 Pick., 559; White v. Brooks, 43 N. H., 403; Hyde 
V. Stone, 9 Cow., 330; Potter* v. Neal, 63 How. Pr. E., 158; Agnew v, 
Johnson, 17 Pa. St., 373; Needham v. Hill, 137 Mass., 183 ; Davis v. 
Lottich, 46N. Y., 893. 

' Loring v. Bacon, 4 Mass., 575; Carter v. Miller, Id., 559; Converse 
V. Ferre, 11 Mass., 385; Doane v. Badger, 13 Id., 65; Gardner v. 
Clevelar>d, 9 Pick., 334; Peyton v. Smith, Dev. & B. (N. C), L., 335. 



§ 28. J tAET OWNERS OF SHIPS. 37 

appropriate his share if it can be determined by measure- 
ment or weight, without the consent of the others, and 
without liability to an action for the conversion of the 
common property.' 

Sixth. Owners in common of personal property may 
maintain a suit in equity for partition ; and in case a 
division be impracticable,, they may have a decree for the 
sale of the common property, and a .division of the 
proceeds." 

§ 28. Part-owners of ships A ship is a personal 

chattel ; and when owned by two or more parties, they 
holil a peculiar relation to each other in respect of the 
joint property, characterized in the law as "part-own- 
ers." They are not classed with joint owners, tenants 
in common, or as partners. Generally, however, they 
are owners in common of the ship, and partners in the 
in iritime enterprises in which the vessel is engaged. 

But they may be, and sometimes are, partners in the 
ship as well. Partners may own a ship as partnership 
property; and persons not general partners may, by 
agreement, become owners as partners of a particular 
ship. • In the absence of these conditions, they are not 
regarded in law as either partners, or, technically, ten- 
ants in common, but part-owners. 

• Forbes v. Shattuck, 33 Barb., 568; Tripp v. Eiley, 15 Id., 333; 
Cannon v. Lusk, 3 Lans., 311; Stall v Wilbur, 77 N. Y., 158. 

2 Godfrey v. White, 60 Mich., 443; Tripp v. Riley, supra, 833, 336; 
Tinney v. Stebbins, 38 Barb,, 390; Wetmore v, Zabriskie, 39 N. J. 
Eq., 63; Crapster v. Griffith,. 3 Bland, 535; Smith v. Smith, 4 R.md., 
95; Kerley v. Clay, 4 Bibb., 341; Marshall v. Crow's Adni'r, 39 Ala , 
378; Conover v. Earl, 36 Iowa, 167; 3 Pom. Eq., § 1391; Potter Will. 
Eq., r. 705. 



38 PAETNEES. [ § 29. 

In respect to third parties, the several part-owners of 
a ship are but one owner ; and hence in actions of con- 
tract by and against them, all should be joined. But if 
torts be committed by several, an action for damages 
may be maintained against a part or aU of them, at the 
pleasure of the injured party. ' 

§ 29. Partners. — Chancellor Kent defines partnership 
thus : "Partnership is a contract of two or more compe- 
tent persons, to place their money, effects, labor and 
skill, or some, or all of them, in lawful commerce or 
business, and to divide the profit, and bear the loss, in 
certain proportions." In the judgment of the writer no 
better definition of partnership has been, or need be, 
formulated. Other definitions by , approved authors, 
differing somewhat in expression, are substantially the 
same in effect.' 

The leading characteristics, and ordinary features, of 
a partnership are, a community of interest for business 
purposes in the stock and profit of the firm, and a shar- 
ing of profit and loss. "While community of interest in 
the stock or profit is essential to a partnership, commun- 
ity in the property does not, in itself, constitute a part- 
nership ; for such a community exists in other relations, 

' Pars. Part, pp., 549-577; 3 Kent Com., p. 152, et seg.; 1 Sch. Pers 
Prop., p. 350, et seq.; 3 Coll. on Part., pp. 1169-1197; Abb. Ship. (Ed. 
1854), pp. 1, et seq., and 137, et seq.; Bishop Non-Con. L., §§ 927, 938: 
Mumford V. Nicoll, 30 Johns., 611; Merrill v. Bartlett, 6 Pick., 46; 
Holderness v. Shaokels, 8 B. & C, 613; Rex v Collector, 3 M. & S., 
223; Bulkley V. Barker, 6 Ex., 164; Robertson v. Smith, 18 Johns., 
459; Bower v. Stoddard, 10 Met., 375. 

' 3 Kent Com., p. 34; Pars. Part., p. 6; Coll. on Part. (Wood's Ed.), 
§ 2; 1 Sch. Pers. Prop., p. 205. 



§ 29.] PAETNEES. 39 

as, for example, in joint and common ownership. And 
there may be a sharing in the profits of a business as a 
compensation for services rendered by a person who is 
not a partner ; the ascertained profit of the firm being a 
fund from which such compensation is derived, and his 
share the measure of the same. 

There are other qualifications and rules touching the 
creation and test of a partnership, but their discussion in 
this connection is forbidden by the limitations of the 
plan and scope of the work in hand ; the purpose here 
being to briefly explain the ownership of personal prop- 
erty by partners. ' 

Partners are joint tenants or owners of their stock in 
trade and effects, but without the right of survivorship ; 
and on a dissolution of the partnership they become 
tenants in common of the partnership property. 

The death of one partner is, ipso faoto, a dissolution 
of the partnership; and thereupon his interest in the 
concern passes to his personal representatives, who 
become tenants or owners in common with the survivors. 
It should be added, however, that on the death of one, 
the survivors have the exclusive right to the possession 
of the partnership property, and the management of the 
business, for the purpose of closing up the same, paying 
the firm debts, and adjusting the equities between them- 
selves and the deceased partner. The survivors become 

' Pars. Part , pp. 43-45, 67 ; Coll. on Part. (Wood's Ed.), § 2, and 
notes; 1 Sch. Pers. Prop., p. 210; Mason v. Hackett, 4 Nev., 420; 
Atherton v. Tilton. 44 N. H., 452; Buckle v. Eckhart, 3 N. Y., 182; 
Leggett V. Hyde, 58 Id., 272; Hanna v. Flint, 14 Cal., 73 ; Parker v. 
Fergus, 43 111., 437. 



40 PAETNEES, [ § 29. 

the trustees of the property, and in its administration 
are subject to the rules applicable to that class of fidu- 
ciaries. The interest of the deceased partner will be the 
residue of his share after payment of partnership debts, 
and adjustment of the equities. ' 

Real estate, bought with partnership funds, and used 
for partnership purposes, is treated in equity as personal 
property, and is subject to the same rules as other per- 
sonal assets of the firm. But, after paying partnership 
debts and adjusting the : equities between the partners, 
what becomes of the residue, if any ? Does it retain the 
impress of personalty, and pass to- executors and admin- 
istrators for the benefit of the next of kin, or does it 
resume its original and intrinsic character as real estate, 
and descend to heirs? The authorities disclose a dis- 
agreement between the English and American doctrine 
on this point ; the former holding that when once con- 
verted into personalty for partnership purposes, it so 
remains and passes to personal representatives for the 
benefit of the next of kin; while, by the weight of 
authority, in this country, it resumes its true charactei* of 
real estate, and descends to heirs." 

Each partner is the agent of aU, and has full authority 
to bind the others by his acts and contracts relating to 
the business of the firm. He may sell, assign, and 

' Pars. Part., pp. 438-447; 1 Soh. Pers. Prop., p. 335; 3 Kent Com., 
p. 37; CoU. on Part. CWood's Ed.), §§ 633, 634. 

' Pars. Part., pp. 369-373; Essex v. Essex, 30 Beav., 443 ; Derby v. 
Derby, 3 Drew., 495; Ripley v. "Waterworth, 7 Ves., 435; Bonner v. 
Campbell, 48 Pa. St., 386; Brewer v. Browne, 68 Ala., 310; Shanks v. 
Klein, 104 U. S., 18; Rice v. Barnard, 30 Vt., 479; Buohan v. Sumner, 
2 Barb. Ch., 165. 



§ 29.] PARTNERS. 41 

transfer partnership property in the regular business of 
the partnership, and for the payment of the firm debts. 
But in regard to the authority of one partner to make a 
general assignment of all the partnership property for 
the benefit of creditors, without the knowledge or con- 
sent of his co-partners, there is some contrariety of 
judicial opinion; the weight, however, seems to be 
against such authority, especially where preferences are 
made. ' 

The interest of each partner in the tangible partnership 
property is liable to sale by execution for payment of his 
individual debts ; and the purchaser on such sale becomes 
a tenant or owner in common with the other partners. 
But partnership property must first be applied to the 
payment of the partnership debts, and the adjustment of 
partnership equities ; and, hence, a purchaser on a sale 
at the instance of an individual creditor, will take only 
the interest of the judgment debtor remaining after the 
payment of such debts, and an adjustment of equities 
between the partners." 

' Pai-s. Part., pp. 95, IDS, 16a-169, 170 et seg.; Coll. on Part. fWood's 
Ed.), g§ 641-644; Stoi^ Agen., § 37; Bouv. L. Diet., "partners," sub. 
9, et seq.; Pettee v. Orser, 18 How. Pr. R , 442 ; Fisher v. Murray, 1 
E. D. Sm., 341; "Wells v. March, 30 N. Y., 344; Osborne v. Barge, 3^ 
Fed. Rep. 93; Coleman v. Darling, 66 Wis., 155. 

» Pars. Part. pp. 351-361, 481-484; 1 Coll. on Part. fWood's Ed.), p. 
187, n. 3; Wright v. Ward, 65 Cal., 523; Daniel v. Owen, 70 Ala., 
397; Randall V. Johnson, 13 R. I., 338; Read v. Lanahan, 47 N. Y. 
Super. Ct. Rep., 375; Hutchinson v. Dubois, 45 Mich. 143; Hershfield 
V. Claflin, 25 Kan., 166; Atkins v. Saxton, 77 N. Y., 195 ; Strauss v. 
Frederick, 19 N. C, 131; Smith v. Jones, 18 Neb., 481; Davis v. 
Howell, 38 N. J. Eq., 72. 



42 COEPORATIONS. [ § 30. 

§ 30. Corporations — A corporation is an artificial 
person, created by law, and endowed by its creator with 
certain attributes, rights, and privileges, common to a 
natural person. It has, however, some franchises which 
do not belong to individuals generally of common right, 
and is subject to some limitations from which natural 
persons are free. In contemplation of law, the artificial 
body thus created is an entity distinct from the individ- 
uals that compose it; and corporations aggregate are 
characterized as immortal by Chief J. Marshall, in the 
famous Dartmouth College case, meaning thereby that 
they have the property of succession, by which the body 
remains the same under all changes of its membership.' 

Corporations are created by the sovereign power of the 
state which, in this country, is exercised through the 
legislature. They may rest on prescription ; but in such 
case long user presupposes an original grant from which 
their existence was derived." 

The United States Congress, as well as the State legis- 
latures, has power to create corporations, public or 
private, ' ' whenever these become an appropriate means 
of exercising any of the constitutional powers of the 
general government, or of facilitating its lawful opera- 
tions in the States or Territories. ' ' ' 

• 1 Potter Corp., § 6; 1 Dill. Mun. Corp., § 9; 3 Black. Com., p. 468, 
et seq.; Boone Corp., § 1; Dartmouth Coll. v. Woodward, 4 Wheat , 
633; People v. Assessors, etc., 1 Hill, 616, 630 ; Providence Bank v. 
BiUings, 4 Pet., 563; Brunswick v. Dunning, 7 Mass., 445, 447. 

» 1 Potter Corp., § 6; 1 DiU. Mun. Corp., §§ 15, 17; 3 Kent Com , p. 
276; McCuUoch v. Maryland, 4 Wheat., 316, 434; Franklin Bridge Co. 
V. Wood, 14 Ga., 80 ; Stone v. Flagg, 73 111., 397 ; Sherwood v. Am 
Bible Soc, 1 Keyes, 561. 

» 1 DUl. Mun. Corp., § 18; 1 Potter Corp., § 6 ; Osborne > Bank ot 



§ 3 O.J OOEPOEATIONS. i3 

Corporations are classified thus : Public, and private ; 
aggregate and sole ; ecclesiastical or religious, and lay ; 
and the latter are subdivided into eleemosynary, and 
civil. But the plan and scope of this work do not 
require more than a statement of the classification ; and 
most of the doctrines presented under this section apply 
especially, though not exclusively, to private corpora- 
tions aggregate, as illustrating the method of holding or 
owning personal property, the point now under discus- 
sion. ' 

It is quite apparent, from the nature and organization 
of corporations, that they must act through natural per- 
sons as agents ; and these are primarily and principally 
the oificers of the corporate body. But, corporations 
generally have the same power as natural persons of 
appointing sub-agents, when the legitimate business of 
the body makes it necessary or proper. The oflBcers are, 
in a sense, superior to their principal in so far as the 
individual corporators constitute the body. They are 
charged by law with certain duties, and clothed with 
certain authority ; and in the discharge of these duties, 
or the exercise of this authority, the corporators cannot 
rightfully interfere ; and courts of equity will not exer- 
cise their jurisdiction to direct or control ofBcers in 
regard to their duties, except in clear oases of fraud or 

U. S , 9 "Wheat., 738 ; Thompson v. Pacific R. R. Co., 9 Wall., 519; 
Pacific R. R. Co. v. Lincoln Co., 1 DiU. C. C. R., 314. 

'1 Potter Corp., g§ 15-30; 1 Dill. Mun. Corp., § 34; Dartmouth 
Coll. V. Woodward, 4 Wheat., 518; People v. Assessors, etc., 1 Hill, 
616; Robertson v. Bullions, 11 N. Y., 243; Silsby v. Barlow, 16 Gray, 
329; Boone Corp., §§ 6-12. 



44- COEPOEATIONS. [ § 30. 

excess of authority, where there is no adequate remedy 
at law.' ' 

The early common law doctrine that a corporation 
aggregate has no power of contract except by specialty, 
is BO changed that such a corporation, when acting 
within the limits of its chartered powers, and the range 
of the purposes of its organization, may make binding 
parol contracts. In case of specialties the corporate seal 
is -still essential to a binding contract, but in all other 
respects the power of a corporation to perform all legiti- 
mate acts, and make all necessary ai;id proper contracts 
by parol, through its authorized agents, is substantially 
the same as that of a natural person. And, as in case 
•of a natural person, promises may be imphed from the 
acts of a corporation, or of its agents.' 

By the common law, corporations have the capacity 
of taking, holding, possessing, aliening, and transmitting 
in succession, real and personal property to the same 
extent as natural persons, so far as necessary for the 
purposes of their creation. But this capacity may be, 

' 1 Potter Corp., § 126-133; Ang. & Ames Corp., § 313; Pom. Eq., § 
1090; Boone Corp., § 137-133; Planters' Bank v. Andrews, 8 Port., 
404; N. H. Sav. Bank v. Downing, 6 M H., 187; Church v. Sherman, 
56 Wis., 404; Belmont v. Erie R'way Co., 53 Barb., 637. 

2 1 Potter Corp., § 36, 37; 3 Kent Com., pp. 389-391 ; Ang. & Ames 
'Corp., § 238, et seq.; Bank of Columbia v. Patterson, 7 Cranch, 399; 
Fleckner v. JJ. S. Bank, 8 Wheat., 338; Bm-rill v. Nahant Bank, 2 
Met., 163; Strauss v. Eagle Ins. Co., 5 Ohio St., 59; Partridge v. 
Badger, 35 Barb., 146; Barry v. Merch. Exch. Co., 1 Sandf., Ch. 380; 
Merchants' Bank v. Bank of Columbia, 5 Wheat., 336; Bank of U. S. 
-V. Dandridge, 12 Wheat., 68; Sheldon v. Fairfax, 21 Vt., 103; Palmer 
av. Medina Ins. Co., 30 Ohio, 587. 



§ 30.] COEPOEATIONS. 45 

and generally is, limited by their charter, or by general 
statutory law, especially in respect to real estate.' 

The individual corporators have not the same owner- 
ship or interest in the corporate property, as have ten- 
ants or owners in common, joint owners, or partners, in 
the common property of their respective associations. 
In other words, they are not owners in common, joint 
owners, or partners; but the title is in the artificial 
body which, in contemplation of law as we have seen, is 
distinct from the members of the corporation. The cap- 
ital of private corporations aggregate is divided into 
shares, called stoch. These shares give to holders an 
interest in the capital to the extent of their value, and 
entitle them to a corresponding and proportionate part 
of the profits of the business. The term stoch, in its full 
legal import, embraces the whole interest of the share- 
holders in the corporation, and all their rights growing 
out of the relation. It includes the right to share in all 
dividends, and surplus profits issuing from the use of the 
capital stock, and also their proportionate share of the 
capital and property of the corporation on its dissolution, 
after payment of the debts. 

But a share-holder has no legal title to the property 
or profits until a division is made, or a dividend is 
actually declared. When declared it is, in contemplation 
of law, severed from the common fund, and becomes the 
individual property of the stockholders, which they are 

' Aug. V. Ames Corp., g§ 110, 111; 3 Kent Com , p. 378 ; 1 Potter 
Corp., §61; Boone Corp., §40; Dutch Church v. Mott, 7 Paige, 83; 
Raymond v. Commissioners, etc., 5 Ohio, 305; McCartee v. Orph. 
Asj. Soc, 9 Cow., 437; Ketchum v. Buffalo, 14 N. Y., 356; Robie v. 
Sedgwick, 35 Barb. ,319; Infra, Ch. XIII. 



46 JOmT-STOCK COMPANIES. [ § 31. 

entitled to receive, and for which, on demand and 
refusal, they may severally maintain an action of 
assumpsit against the corporation. A dividend declared 
is thereafter held as a trust fund by the corporation, and 
it cannot rightfully be devoted to other objects. 

The owner of stock may assign or transfer it at pleas- 
ure, and give to the assignee the same title and interest 
held and owned by himself, including dividends there- 
after declared, whether earned before or after the trans- 
fer ; and the assignee will be subject to the obligations 
and disabilities of the assignor among which is the 
liability for installments thereafter called for. But a 
share-holder cannot so dispose of his interest as to 
separate it from the body of stock held in common with 
other stockholders. 

At common law, stock cannot be taken in execution 

and sold for the debts of the owner; but it may be 

reached for the benefit of creditors by means of equity 

proceedings. ' 

**• 

§ 31. Joint-stock companies. — These associations 
occupy a middle ground between corporations and part- 
nerships, having features peculiar to each. Like corpor- 

' 1 Potter Corp., §§ 356-262; Pom. Eq. Jur., § 1090; Boone Corp. gg 
106, 123-135 ; 1 Sch. Pars. Prop., p. 643; Ang. & Ames Corp., §§ 588- 
589; Hyatt et al. v. AUen, 56 N. Y., 196 ; Brightwell v.'Mallory, 10 
Yerg,, 196; State v. Franklin Bank, 10 Ohio, 90, 97; Duvergier v. 
Fellows, 5 Bing., 348 ; Quiner v. Marblehead Ins. Co., 10 Mass., 476; 
Moore v. Bank of Commerce, 53 Mo., 377; Bayard v. Farmers, etc.. 
Bank, 53 Pa. St., 233; Sabine v. Bank ofWoodstock, 21 Vt., 358; 
Howe V. Starkweather, 17 Ma3s., 240; Denton v. Livingston, 9 Johns., 
96; Granger v. Bassett, 98 Mass , 463; LeRoy v. Globe Ins. Co., 3 
Edw. Ch., 657. 



§ 31. J JOINT-STOCK COMPANIES. 47 I 

ations they have a common name, usually descriptive of 
their business, and which does not, as in partnerships, 
consist of the names of the members. They have also, 
like corporations, their officers, by-laws, and rules of 
procedure, and by these rules and by-laws the election of 
officers, transaction of business, and the transfer of 
shares, is regulated. The transfer of shares or the inter- 
est of a member in the property of the company, is made 
by certificate or scrip, issued and recorded in substantially 
the same manner and form as in the case of corporations. 
But they are more assimilated tc partnerships than to 
corporations, both in respect of organic character, and of 
their internal and external relations ; and they are gener- 
ally subject to the law of partnerships. They have been 
•characterized as partnerships in which the capital is 
■divided, or agreed to be divided, into shares so as to be 
transferable without the express consent of all the co- 
partners, not an inapt characterization.' 

In England, and sometimes also in this country, joint- 
■stock companies are regulated by statute. When not 
incorporated, or organized under and regulated by statute, 
.general or special, they are in essence partnerships by 
whatever name christened, albeit partnerships of a 
peculiar character.' 

' Pars. Part., pp. 541-546; Potter Coi-p., §§ 631-633; 1 Sch. Pers. 
Prop., pp. 347-350; 3 Kent Com,, pp. 37, 38; Bouv. L. Diet., "joint- 
■stock companies " 

* Citations supra; and Williams v. The Bank of Mich., 7 Wend., 
U2; Tenney v. The N. E. Protective Union, 37 Vt., 64 ; The King v. 
Dodd, 9 East., 516; Holmes v. Higgins, 1 B. & C, 74; Hess v. Werts, 
4 Serg. & R., 356; Gorman v. Eussell, 18 Cal., 688; Bobbins v. Butler, 
■24111., 387. 



4:8 JOINT-STOCK COMPANIES. [ § 31 

Between corporations and joint-stock companies there 
is a marked difference in this : In the former the rights, 
duties, and responsibilities of the body and of its mem- 
bers, are prescribed and governed strictly by the provis- 
ions of their respective charters, and the general corpora- 
tion laws applicable to such corporations ; and stockholders 
are not personally or individually liable for the acts or 
contracts of the officers or members of the body, unless 
expressly so made by the charter, or the general statutory 
law applicable to such bodies. "Whereas, in all unincor- 
porated companies, where the common law rule is not 
changed by statute, the stockholders are personally 
responsible in their individual capacities for all acts and 
contracts of the company, and of its authorized agents, 
within the scope of the business of the association, the 
same as in partnerships proper. ' 

There is an important difference between a partner- 
ship and a joint-stock company in the effect produced by 
the death of a member, or the transfer of all his interest 
in the association. In the former it works a dissolution 
of the coi6pany ; but not necessarily, or generally, so in 
the latter." 

' Story Part., pp. 107-109 ; Pars. Part., pp. 544, 545; 3 Coll. Part. 
(Wood's Ed.), §833; Babb v. Read, 5 Rawle, 157; Tappan v. Bailey, 
4 Md., 535; Cox v. Badflsh, 35 Me., 303; Skinner v. Dayton, 19 Johns.. 
513; Penn. Ins. Co. v. Murphy, 5 Minn., 36; Henry v. Jackson, 37 
Vt., 431; and Gorman v. Russell, 18 Cal., 688; Williams v. The Bank 
of Mich. , Tenney v. The N. E. Protective Union, and Robbins v. But- 
ler, cited-supra. 

« Pars. Part., pp. 545, 547; Putnam v. Wise, 1 Hill, 334 ; Murray 
V. Bogart, 14 Johns., 318; Marquand v. N. Y. Manuf. Co., 17 Id., 
535; Woodwell v. Keeler, 8 Watts & S., 63; Kingman v. Spurr, 7 
Pick., 835 ; Mason v. Connell, 1 Whart., 381; James v. Woodruff, a 
Denio, 574. 



§ 31.] JOINT-STUCK OOMI'AXIKt,. 49 

From what has now been said in regard to joint-stock 
companies, it will be correctly inferred that the common 
law rules applicable thereto may be changed by statute, 
or modified in their application by articles of agreement. 
And it should be noted that, when associations intended 
as joint-stock companies, fail to become such on account 
of some informality in their organization, they generally 
constitute partnerships, and are subject to the laws appli- 
cable thereto.' 

In some cases the legal title to all the property of the 
company is vested in trustees, who hold it in trust for 
the benefit of the share-holders, who have the equitable 
interest ; but this does not affect the rules herein pre- 
sented as governing such companies. 

It may be added that generally, as in the case of cor- 
porations, the business of joint-stock companies is man- 
aged by their officers and other agents employed for the 
purpose ; and to the relation of principal and agent, thus 
created, the general law of agency applies.' 

Joint-stock companies, like corporations aggregate and 
partnerships, may take, hold, and alien, both real, and 
personal property, subject to statutory limitations and 
regulations. 

' Pars. Part., p. 548; Whipple v. Parker, 29 Mich., 370; Manningv. 
Gasharie, 37 Ind., 399; National Bank v. Landon, 45 N. Y., 410. 
• Pars. Part., p. 543; 3 CoU. Part. (Wood's Ed.), § 845. 

4 



50 MODES OF ACQUIEING TITLB. [ § 32. 

CHAPTEE YI. 

MODES OF ACQTJIEINa TITLE TO PERSONAL PROPERTY. 
Section 33. Modes of acquiring title classified and analyzed. 

§ 33. Modes of acquiring title classified and ana- 
lyzed. — By a common and convenient analysis and 
grouping, there are three general ways in which title to 
personal property may be acquired, viz : 

First. By original acquisition ; 

Second. By transfer by act of law ; and 

Third. By transfer by act of the parties.' 

These general ways are severally sub-divided into par- 
ticular methods, each embracing its specific ways of 
acquiring title to- wit : 

First. Original acquisition ; sub-divided into — 

1. Occwpcmcy, embracing (a) goods taken by 

capture in war ; (b) goods casually lost by 
the owner, and unreclaimed, or designedly 
abandoned ; (c) waifs ; and (d) reclaiming 
animals ferm naturce. 

2. Accession; embracing (a) fruits of the earth, 

produced naturally, or by human indus- 
try; (b) the increase of animals; (c) 
materials of one person united to the 
materials of another ; and (d) confusion of 
goods. 

' 2 Black. Com., pp. 2 et seq., 401; 2 Kent. Com. p. 356; 3 Sch 
Pers. Prop. , p. 4. 



§ 32.J MODES OF ACQUIRING TITLE.. 51 

3. Products of intellectual labor ; embracing 

(a) patents for inventions and designs ; (b) 
copyright ; (c) letters addressed from one 
correspondent to another ; and (d) lectures. 

4. Trade-marTcs. 

Second. Transfer hy act of law/ sub-divided into (1) 
forfeiture; (2) succession; (3) judgment; (4) intestacy; 
(5) insolvency ; and (6) marriage. 

Third. Transfer by act of the parties; sub-divided 
into (1) gifts inter vivos j (2) gifts causa mortis ; (3) title 
by will or testament ; (4) sales ; (5) indorsements ; (6) 
assignments ; and (7) bailments. 

In the chapters following, these general and particular 
methods of acquiring title to personal property will be 
discussed briefly in the order above named, including the 
specific modes under each sub-division. 

In considering the methods of aGquirimg title, the ways 
of losvng it will necessarily appear ; and hence direct 
treatment of the latter would be superfluous. 



53 occuPA^oT. [ § 33. 



CHAPTEE YII. 

TITLE BY ORIGINAL ACQUISITION. 

SBOnON 33. Occupancy; the first known method of acquiring title. 

34. Goods taken by capture in war. 

35. Goods lost or abandoned. 

36. Waifs. 

37. Reclamation of animals fercB naturce, 

38. Title by accession; defined. 

39. Fruits of the earth. 

40. Increase of animals. 

41. Materials of one person united to those of another. 

42. Products of inteUeotual labor, discussed. 
43-46. Patents for inTentions and designs. 
47-50. Copyright. 

51. Letters from one correspondent to another. 
53. Lectures. 
53-60. Trade-marks. 

§ 33. Occupancy. — Under original accfliisition, the 
first general mode of acquiring title to personal property, 
occupancy is primal. This includes the original or begin- 
ning of title, and also the recommencement when the 
chain has been broken, and the connecting link is lost. 
Occupancy is generally regarded as the first known 
method of acquiring exclusive title to property. 

The origin and foundation of the right of private 
property has given rise to much learned discussion, and 
some contrariety of opinion among publicists. "Without 
attempting in this connection to present the different 
views and lines of argument on the question, it wiU be 
assumed in accord with the author's belief, that the right 



§ 33.] OOCVTASOY. 63 

of property is of Divine origin, derived by title deed 
from the original Creator of all things, and attested by 
universal intuition. Among aU nations and peoples, 
from the rudest and most barbarous to the most highly 
civilized and polished, there has always existed a natural 
sense of property, the recognition of a natural law of 
property. There has always and everywhere existed an 
intuitive conviction of a natural right to gratify the uni- 
versal desire of mankind to acquire and possess external 
things, and to exercise exclusive dominion over them. 
And it is written by the pen of inspiration that our 
infinitely wise and beneficent Creator gave to men 
' ' dominion over the fish of the sea, and over the fowl of 
the air, and over the cattle, and over all the earth, and 
over every creeping thing that creepeth upon the earth. '" 

But, assuming that by force of natural law and Divine 
ordinance, the right of property in external things in the 
aggregate belongs to the human race collectively, the 
question still remains, — How can an individual acquire 
exclusive title to things in the segregate? To this ques- 
tion ho writer has given a more satisfactory answer than 
Chancellor Kent, who says : ' ' The exclusive right of 
using and transferring property, follows as a natural con- 
sequence, from the perception and admission of the right 
itself;" that is, the perception and admission of the 
truth that the acquisition and enjoyment of property is a 
law of man's nature. 

It is claimed by some writers, that in the infancy of 
society there was a community of goods. There may 
have been a community in the substance of things, in the 

' Genesis, ch. I, v 26. 



64 OCCUPANCY. ^ [ § 33. 

sense that property in the aggregate belongs to mankind 
as a whole ; but community cannot reasonably be predi- 
cated of the use of things while in the possession of 
individuals, it being impracticable, and in conflict with 
the natural right of private property. Eeferring to the 
germinant period of legal ideas in the early stages of 
society, we find that the usufruct constituted the only 
benefit and value of property ; and hence the theory of 
a community in the substance of things, based upon the 
doctrine that to mankind in general belong the subjects 
of property as a whole, is not incompatible with the 
right of individuals to the exclusive use of particular 
things. 

But, whatever theory we adopt the fact is, that he 
who first appropriated a thing to his own use acquired a 
property therein, and an exclusive right thereto, by 
common consent ; which property and right continued so 
long as the exclusive use or occupancy continued, and no 
longer. The right of possession was limited to the act of 
possession ; when the latter ceased the former was lost ; 
whereupon any other individual might appropriate the 
thing to his own use, with" the like right and limitation ; 
and so on in succession indefinitely. This rule is well 
adapted to the intelligence and wants of man in a rude 
and undeveloped condition of the race. His nature is 
largely sensuous ; he is unable to grasp abstract prin- 
ciples, and his perception of intelligent ideas is confused 
and feeble. Hence the truth of the saying that ' ' prop- 
erty without possession, was too abstract an idea for 
savage hf e. ' ' It may be said also with equal truth, that 
the mere use or occupancy of goods and chattels was 



§ 34. J GOODS TAKEN BT OAPTUEE IN WAE. 55 

ample for the few and simple wants of man in the primi- 
tive condition of society. 

But the world moved ; population, and the wants of 
man increased; social relations became more complex; 
individual interests clashed ; and the time came when it 
was seen that personal rights, and the peace and welfare 
of society, required practical recognition of exclusive pri- 
vate property in the substance, as well as in the use, of 
things. 

This doctrine established, another step in advance, the 
right of transferring both the title and the possession of 
property, was natural and logical. Thus, advancing step 
by step as the exigencies of society demanded, and reason 
dictated, grew up that just and enlightened system of 
principles and rules which constitute the law of personal 
property. Briefly stated, the order of development was, 
first, the right of possession or occupancy, the usufruct ; 
second, the right to the substance of the thing, which 
carries with it th.e prima facie right of possession; and, 
third, the right to transfer the" thing itself, including 
both the substance and the possession. 

"With this brief historical sketch of title to personal 
property, we are prepared to discuss the different ways 
of acquiring title by occupancy, one of the subdivisions 
of title by original acquisition.' 

§ 34. Goods taken by capture in war. — This consti- 
tutes one mode of acquiring title by occupancy. At the 

' 3 Black. Com., pp. 3, et seq., 258, 401; 3 Kent Com., pp. 317, et 
seq., 356; 1 Sch. Pers. Prop., pp. 1-24; 3 Id., pp. 5-8; Bouv. L. Diet, 
"acquisition;" Holy Bible, Gen. I., 38; And. L. Diet., "oeoupanoy." 



56 GOODS TAKEN BY CAPTUEE IN WAE. [ § 34. 

common law, the title to goods taken by capture in war 
vested in the captor, whether seized by national agency 
or by voluntary individual action ; but now, by the gen- 
eral consensus of civilized nations, the title in either case 
vests primarily in the sovereign; and captured goods 
belong to the individual captors only to the extent, and 
under regulations, prescribed by positive law. 

The right of seizure is now generally regarded as a 
maritime right; and the purpose of its exercise is the 
destruction of the enemy's commerce and navigation, 
thus weakening his naval power. In contemplation of 
law, a declaration of war duly made by the sovereign or 
government of a state, is a declaration of war by all its 
subjects individually and collectively, and is binding upon 
all. As a corollary of this doctrine, not only do the 
belligerent nations become enemies, but 'by implication 
all the subjects of each become enemies to all the sub- 
jects of the other. From this doctrine, in connection 
with the rule of public law that the- property of an 
enemy, or of his subjects, is liable to capture by the 
adverse nation, it would seem to follow logically that the 
seizure may be made voluntarily by a private citizen, as 
well as by direct sovereign or governmental authority ; 
and such is the law. As a consequence, title to the cap- 
tured property being lost by the owner, would, at common 
law, vest directly in the captors, as the title must be in 
some body, natural or corporate; and such is strictly 
and logically the rule as between the belligerent parties. 
But the prevailing doctrine of public law on the subject 
now is, that when a private citizen makes the seizure he 
is supposed to act in behalf of the government, whose 



§ 34:.] GOODS TAKEN' BY CAI'TtTEE IN WAE. 57 

prerogative it is to adopt or repudiate the seizure at 
pleasure. Adoption by the government being equiva- 
lent to a, precedent authority or command, the seizure 
becomes the act of the government. If the government 
repudiates, or fails to adopt the capture, the individual 
captors will take no title to the property seized. 

In all maritime captures, whether by sovereign 
authority or by voluntary private action, the captured 
property, with proofs of legality of seizure, must be sub- 
mitted to a prize court, whose adjudication determines 
the legality of the capture, and the transfer of title. If 
the seizure be sustained, the proceeds of the captured 
property is generally distributed among the captors as a 
"reward for bravery, and a stimulus to exertion." 

Regarding the property of ahen enemies found within 
the limits of a state on the commencement of hostilities, 
there has been considerable discussion ; but the doctrine 
seems to be well established that the state has the right 
to capture and confiscate such property. But the exer- 
cise of this harsh and practically unjust measure rests in 
the discretion of the government ; and the right itself has 
been to a large extent practically nullified by the laws 
and ordinances of many governments, and by inter- 
national treaties. By these provisions in the interest of 
justice and progressive civilization, property of alien 
enemies brought into the country in good faith and with 
the sanction of the government, before the outbreak of 
hostilities, is protected from confiscation. In the United 
States the existence of this right is made to depend upon 
act of Congress. 

The right of seizure and confiscation of private prop- 



58 GOODS LOST OE ABANDONED. [ § 35. 

erty is not the same upon the land as in naval warfare. 
It is true that, in cases of military necessity, the capture 
or destruction of the enemy's property on land is sanc- 
tioned by the law of nations ; but the doctrine seems to 
be established that no private right of property arises 
from capture by land forces. And, unnecessary depre- 
dations upon private property in the prosecution of 
hostilities upon land are restricted and discouraged by 
wise and humane commanders. 

Before closing this section, it may be well to note that 
one consequence of a declaration of war is, to interdict 
all commercial intercourse between the subjects of the 
belligerent powers, and to render contracts between them 
void, except such as are made under license of the govern- 
ment, express or implied.' 

§ 35. Goods lost, or abandoned At common law, 

to goods lost by the owner and unreclaimed, or design- 
edly abandoned by him, the finder acquires title by occu- 
pancy. But the former owner must have completely 
relinquished the chattel before a perfect title will accrue 
to the finder." 

' 1 Kent Com., pp. 55-59, 97, 101, 108-113; 1 Cooley's Black., p 359, 
and n.; 1 Abb. U. S. Pr., pp. 545-554; Abb. Ship. (7 Am. Ed.), pp 29- 
34, and notes; Bouv. L. Diet., "Capture;" Conkl. Prac, p. 461; 
Bishop Con. (Enl. Ed.), § 1000: Brown v. United States, 8 Cranch, 
110; The Cargo of Ship ilmulous, 1 GaU., 563; The AngeUoa, Blatchf. 
Pr. Cas., 566; The Merimac, Id., 584; The Caledonia, 4 Wheat., 100; 
Carrington v. MerohajQt's Ins. Co., 8 Pet., 495; Taylor et al. v. The 
United States, 3 How.., -197; United States v. The Active, 3 Car. Law 
Repos., 193; United States v. Twohundred, etc., balesof Cotton, Law 
Rep. N. S., 461; And. L. Diet., "capture." 

' 3 Kent Com., pp. 356, 357; 3 Sch. Pars. Prop., p. 14, et seq.; "Wil- 
liams Pers. Prop., p. 24; Bridges v. Hawkesworth, 9 Eng. L. & Eq.. 



§ 3 5. J GOODS LOST OE ABANDONED. 59 

The title to lost goods remains in the former owner 
until he abandons the intention of reclaiming them ; and 
such intention may be presumed by lapse of time, or 
shown by some affirmative act on his part ; the fact in 
all cases being determined by the circumstances. Until 
such abandonment he will have the right to take posses- 
sion of the lost chattel whenever and wherever he may 
find it, even though it may have passed into the hands 
of a hona fide purchaser. But, in the meantime, the 
finder or purchaser will have a special property in the 
chattel, which will enable him to maintain trespass or 
trover against a stranger for an unauthorized interfer- 
ence with, or conversion of, the property.' 

In case the finder knows the owner, or if circumstances 
come to his knowledge indicating the true ownership, 
and he conceals the finding and converts the property to 
his own use, he may be held guilty of larceny. But 
some cases hold that, to constitute larceny the finder 
must have had the animus furandi when the property 
was found and taken by him, and that no subsequent act 
or intent can render him guilty of larceny." 

424; Livermore v. White, 74 Me., 456; S. C. Am. Rep., 600; Hamaker 
V. Blanchard, 90 Pa. St., 377; S. C. 35 Am. Rep., 664; Brown v. Sul- 
livan, 62 Ind., 281 ; Tancil v. Seaton, 28 Gratt. (Va,.), 601; Durfee v. 
Jones, 11 R. I., 586; New York & H. R. Co. v. Haws, 56 N. Y., 175. 

' 2 Kent Com., p. 356; 2 Sch. Pars. Prop., p. 14, et seq.; Williams 
Pers. Prop., pp. 23-26; Armory v. Delamirie, Str. Rep., 556; Brandon 
V. HuntsviUe Bank, 1 Stewart (Ala.), 320; Agar v. Lisle, Hob., 187; 
Knapp V. Winchester, 11 Vt., 351; Cook v. Patterson, 35 Ala., 102; 
Jeffries V. Great Western R. R. Co., 34 Eng. L. & Eq., 122; Sylvester 
V. Girard, 4 Rawle, 185. 

« 2 Kent. Com., p. 357 ; Bishop Crim. L., §§ 880-883; 3 Sch. Pers. 
Prop., pp. 24, 25; Rex v. Mucklow, 1 Ryan & M,, 160; Butler's Case, 
3 Inst., 107; People t. Anderson, 14 Johns., 394; People v. Cogdell, 1 



60 GOODS LOST OE ABANDONED. [ § 35. 

The acquisition of title by finding is limited to chattels 
on the earth's surface, and does not apply to treasure 
trove, goods hidden in the earth. It is held with reason 
that, the fact of burying or concealing the property by 
the owner, indicates his purpose of retaining, and nega- 
tives the intention of abandoning, the same. ' 

Stolen corporeal property may be recovered by the 
owner, not dnly from the thief, but from any person in 
whose hands it may be found, even from a honafide pur- 
chaser. The thief acquires no title, and has none to 
convey.' 

But commercial policy has established a different rule 
in respect to money, bank notes, and current negotiable 
securities, to which a hona fide holder acquires and will 
retain title against a former owner, in whatever way he 
may have lost the chattel, even though it were stolen 
• from him.' 

And, for like reasons, the hona fide holder of negoti- 
a,ble commercial paper indorsed in blank, or payable or 

Hill, 94; The State v. Weston, 9 Conn., 527; People v. McGarren, 17 
Wend., 460; McAvoy v. Medina, 11 Allen, 548; Bridges v. Hawkes- 
•worth, 7 Eng. L. and Eq., 424; And. L. Diet., "abandoned." 

' 2 Kent Com., p. 358; and cases cited supra. 

» 3 Pars. Cont. i!l Ed.), p. 520; 2 Sch. Pers. Prop., p. 22: Bearce v. 
Banker, 115 Mass., 129; Moody v. Blake, 117 Mass., 23, 26; Prime v. 
•Cobb, 63 Me., 200; Bryant v. Witcher, 52 N. H., 158, 161; Klein v. 
-Seibold, 89 IlL, 540; Nixon v. Brown, 57 N. H , 34; Coombs v. Gor- 
den, 59 Me., Ill; Barker v. Dinsmore, 72 Pa. St., 427; Mechanics, 
.etc.. Bank v. Farmers, etc.. Bank, 60 N. Y., 40; Hill v. Snell, 104 
Mass., 173; Pease v. Smith, 61 N. Y., 477. 

' 2 Sch. Peis. Prop., p. 28; Ventress ^ Smith, 10 Pet., 161; Hoff- 
man V. Carow, 22 Wend., 285: Goodman v. Simonds, 20 How., 343; 
3ackhouse V. Han-ison, 5 B. & Ad.. 1098; Lowndes v. Anderson, 13 
Ilast., 130; Raphael v. The Bank of England, 17 C. B. 161. 



§ 36. J WAIFS. 61 

indorsed to bearer, and acquired by him before its matur- 
ity, for a valuable consideration, and without notice of 
the loss, acquires a good title, and can maintain it against 
the former owner. Nothing short of mala fides wiD 
defeat the holder's title.' 

As it is the duty of the finder to take proper care of 
the goods, and to make all reasonable efforts to ascertain 
the true owner, it is but simple justice that he should 
receive suitable compensation for his trouble and expense 
in that regard ; and this the law awards him. But it is 
held that the finder has no lien on the property for his 
trouble and expense, except as to a reward offered for its 
recovery." 

The common law doctrine on this subject has been 
more or less modified in some of our States, and else- 
where, by legislation ; making the state instead of the 
finder the paramount owner, subject to the rights of the 
true owner, and also in some other particulars. Presum- 
ably every student and practitioner wiU examine the 
modifying statutes for himself, whenever it may be 
requisite for his purposes. 

§ 36. Waifs. — Stolen goods waived or thrown away 
by a thief in his flight, through fear of apprehension, are 
called waifs. If the goods thus waived be seized by a 
public officer, or by a private person, before ' the owner 

' 2 Dan. Neg. Inst., § 1469; Story on Notes, § 383; Stouy, BiUs, §416; 
Chitty, Bills (13 Am. Ed.), pp. 254, 355; Murray v. Lardner, 3 Wall., 
710; Garvin v. WisweU, 83 lU., 316. 

» 2 Kent Com., p 856; 2 Sch. Pers. Prop., pp. 15, 16; Williams 
Pers. Prop, p. 38, et seq.; Nicholson v. Chapman, 3 H. BL, 354; 
Wentworth v. Day, 3 Met., 353; Marvin v. Treat, 37 Conn., 96; Wood 
V. Pierson, 45 Mich., 313.' 



62 EECLAMATION OF ANIMALS. [ § 37. 

reclaims them, the latter, at common law, loses his title 
thereto. This on the assumption that the owner was 
culpably negligent in pursuing the thief and reclaiming 
his goods, and therefore should lose his title as a punish- 
ment. In England, when waifs are first seized bv some- 
body other than the owner, the title vests in the crown ; 
but if first seized and reclaimed by the owner he does not 
forfeit his title. When the title does pass to the crown, 
the owner may regain his goods by following and cap- 
turing the thief, or by furnishing evidence suificient to 
cause his conviction after capture. If the thief conceals 
the goods, or does not take them with him in his flight, 
they are not waifs and the owner may 'have them again 
at his pleasure. 

The goods of a foreign merchant, though stolen and 
waived in flight by the thief, are not deemed waifs or 
bona waviata I the reason whereof, suggested by Black- 
stone, being, ' ' not only for the encouragement of trade, 
but also because there is no willful default in the foreign 
merchant's not pursuing the thief; he being generally a 
stranger ' ' to the laws, usages, and language of England. 

In this country, it is generally held that waifs pass to 
the state in trust for the true owner, who may regain his 
property by making due proof of his rights. ' 

§ 37. Reclamation of animals ferae naturae. — Another 
mode of obtaining title to personal property by original 
acquisition, through occupancy, is by reclaiming animals 
wild by nature, ferm natv/rce. "Wild animals belong to 

' Black. Com. (Cooley's Ed.), p. 397, and notes; 3 Id., p. 409; Kent 
Com., p. 359; 3 Sch. Pers. Prop., p. 9; And. L. Diet., " waifs." 



§ 37. J RECLAMATION OF ANIMALS. 63 

nobody in particular; yet they become the qualified 
property of any. one who subjects them to his possession 
or power. The qualified property thus acquired con- 
tinues in the captor while possession or control is main- 
tained, or until the animal becomes so far domesticated 
that it will not voluntarily leave without the animus 
revertendi. "When this point is reached the qualified, 
has ripened into absolute, property, the nature of the 
animal being changed from ferm natwrcB to domitce 
natv/roe, wild to tame. Until thus changed, and while in 
the possession or power of the captor, his qualified prop- 
erty will be fully under the cognizance and protection of 
law ; but if the animal escape and regain its natural free- 
dom, without the animus revertendi, the captor's title is 
wholly lost, and any other person may rightfully take the 
fugitive, thereby acquiring the same qualified property 
possessed by the first captor ; and so on indefinitely. ' 

Some text writers have suggested a practical difiiculty 
in drawing the dividing line between the two classes of 
animals, wild and tame; and there has been some con- 
troversy among distinguished publicists respecting the 
■origin of the distinction. By some it is claimed that all 
animals are by nature wild and free ; the mild and docile 
•character of those classed as tame being the natural 
■effect of their subjugation and bondage to men ; while 
others insist that wild and savage animals are by nature 
mild and tame, their wild and ferocious disposition being 
■due to the violent and inhuman treatment of man. 



' 3 Black. Com. (Cooley's Ed.), pp. 390-395, and notes; Id., p. 404; 
•2 Kent. Com., pp. 348-350; 1 Sch.' Pars. Prop^, pp. 77-83; Williams 
Pars. Prop., pp. 19, 20; And L. Diet., "animal." 



64 RECLAMATION OF ANIIIALS. - [ § 37. 

These speculations are of little or no practical value ; 
facts and experience far outweigh theories. From a 
remote age of the world two classes of animals, wild and 
tame, have been universally recognized ; and there ought 
not to be any serious embarrassment in marking the divi- 
sion line between them. Animals that are generally 
found living contentedly in and about the dwellings of 
man, or grazing in his fields, and that minister to his 
pleasure or profit, such as dogs, horses, sheep, oxen, and 
other cattle, are classed as tame or domestic by common 
and unquestioning consent. While animals of a preda- 
tory or ferocious character, that run at large in fields 
and forests, and never visit the abodes or haunts of men 
except on stealthy and mischievous excursions, or on bold 
raids in quest of prey, are known and classed as wild 
without doubt or hesitancy. Belonging to the latter 
class there are, however, some of an exceptionally mild 
type that frequently become domesticated, and hence 
absolute property in their owners; among which are 
deer, -hares, rabbits, doves, and others of like character," 

Honey-bees are ferm natv/roB j but, when reclaimed 
and hived, they become the subjects of qualified prop- 
erty. But the finding of a bee-tree on the land of 
another, and marking it, does not give title to the finder. 
If bees when hived escape, or a swarm departs from the 
hive, the owner does not lose his property in them so 
long as he pursues and is able to identify them.' 

' Citations supra, and Manning v. Mitcherson, 69 Ga., 447; S. C, 
47 Am. Rep., 764; Amory v. Flyn, 10 Johns., 102. 

» Kent Com., p. 850; 3 Black. Com. (Cooley's Ed.), p. 393; 1 Sch. 
Pers. Prop., p. 83; Gillet v. Mason, 7 Johns., 16; Furgeson v. Miller, 
1 Cow., 243; Idol v. Jones, 2 Dev. (N. C.) L., 162; State v. Murphy, 8 
Ulackf., 498; Gofif v. Kilts, 15 Wend., 550. 



§§ 38, 39.] TITLE BY ACCESSION. 65 

While property iii wild' animals can be acquired only 
by occupancy, actual or constructive, an actual taking is 
not always necessary to create title ; it is sufficient if the 
pursuer bring the animal within his power or control.' 

§ 38. Title to personal property by accession 

Falling under the second subdivision of original acquisi- 
tion, is title by accession. Chancellor Kent, following 
the French and Louisiana Codes, defines the right of 
accession " to be the right to all which one's own prop- 
erty produces, whether that property be movable or 
immovable, and the right to that which is united to it 
by accession, either naturally or artificially." This 
definition is sufficiently accurate and comprehensive for 
practical purposes ; and a better it would be difficult to 
formulate. It embraces fruits of the earth, the increase 
of animals, and materials of one person united to the 
materials of another. 

Confusion of goods, though differing somewhat from 
accession proper, and sometimes treated separately, is 
near of kin to accession, and may conveniently be dis- 
cussed in the same connection." 

§ 39. Fruits of the earth. — It is a familiar doctrine 
that the fruits of the earth, whether produced naturally 
or by human industry, belong generally to the owner of 
the' soilj and this doctrine rests upon the right of acces- 
sion. 

' 1 Sch. Pers. Prop., p. 80; 3 Kent Com., pp. 349, 350; Pierson v. 
Post, 3 Cai. Cos., 175; Buster v. Newkirk, 20 Johns., 75. 

' 3 Kent Com., pp. 361-365; French Code, Civil, No. 546, 547; Civil 
Code of La., Art. 490, 491; 3 Black. Com., p. 405; 3 Sch. Pers. Prop., 
pp. 81-40; Bouv. L. Diet., "accession." 
5 



66 INCBEASE OF ANIMALS. [ § 40. 

The same rule applies to trees, plants, and seeds, set 
out or sown on land, whether by the owner or some 
other person; excepting, however, trees and plants 
placed temporarily in the soil of another by his consent, 
with the privilege of removal at pleasure. 

Under sanction of this general doctrine, it has been 
held, that a party in possession of land, claiming 
adversely, may pass the legal title to the crops raised 
thereon by him, as against the true owner of the land 
who is out of possession.' 

§ 40. Increase of animals. — Of tame or domestic 
animals, the offspring belong to the dam or mother, by 
the law of accession. The maxim partus sequitur ventrem 
applies to the brute creation, both under the English, 
and the civil, law; but not, generally, to the human 
species. Under the Eoman law, however, and also by 
the slave code formerly existent in the United States, the 
maxim was applied to the children of slave mothers ; and 
for the reason, doubtless, that in contemplation of these 
laws slaves were chattels. The reason of the rule as 
applied to the brute creation is, according to Puffendorf, 
that the male is frequently unknown, and that the dam 
during pregnancy is almost useless to the proprietor, 
while having to be maintained at his expense; and, 
therefore, ' ' as her owner is the loser by her pregnancy, 
he ought to be the gainer by her brood. " Blackstone 



• Citations supra ; and Johnson v. Hunt, 11 Wend., 135; Fryatt v. 
SulUvan Co., 7 HiU, 539; Gallup v. Josselyn, 7 Vt., 334; Eicketts 
V. Dorrell, 55 Ind., 470; Stockwell v. Phelps, 34 N. Y., 363; Martin v. 
Thompson, 63 Cal , 618; s. c, 45 Am. Rep., 663; Lindsay v. Winona 
& St. Peter R. R., 29 Minn., 411; s. c, 43 Am. Rep., 238. 



§ 41. J MATERIALS UNITED. 67 

. mentions an exception- to the rule in question in the case 
of young cygnets, which belong equally to the owner of 
the cock and hen ; and this because the male is well 
known by his constant association with the hen, and the 
owner of one does not suffer more than the other during 
pregnancy and nurture ; and hence, as the reason of the 
rule ceases in this case, the rule itself ceases, the maxim 
being cessante ratione cessat et ipse lex. 

The rule in question applies, also, to the hirer of 
domestic animals for a limited period, he being entitled 
to their increase during the demise.' 

§ 41. Materials of one person united to the materi- 
als of another. — The general doctrine on this variety of 
accession commonly found in our text-books is, that 
where the materials of one person are united to the 
materials of another, by the labor of the latter, who fur- 
nishes the principal materials, the property in the joint 
product is in the latter by right of accession. 

"While this statement of the law is correct as far as it 
goes, a more comprehensive statement of the general 
doctrine may be formulated thus : Where materials are 
furnished by one person, or several, and are united by 
the labor of another, the joint product will, in the 
absence of any agreement, belong to the contributor of 
the most important or valuable constituent, whether it 
be materials or labor. The word ' ' accession ' ' fairly 
implies a drawing of the less to the greater. 

' 2 Black. Com., p. 390; 3 Kent Com., pp. 361, 363; 1 Sch. Pers. 
Prop., 79; Droit Nat. Lib., 4, ch. 7, § 4; Inst. 3, 1, 37; Wood v. Ash, 
Owen's Rep., 139; Putnam v. Wiley, 8 Johns., 433; Stewart v. Bell, 
33 Miss., 154; ConckUn v. Havens, 13 Johns., 314. 



68 MATERIALS UNITED. [ § ^1- 

In many of the reported cases, however, the skill of ' 
the artist, oMabor of the manufacturer, is not weighed 
as against the materials, because the latter are delivered 
to the former to be wrought into a chattel, on a bailment 
or other contract ; and in doubtful cases of fact, which 
doctrine shall apply and govern, contract or accession, 
will depend upon the intention of the parties. But, that 
under the doctrine of accession the value of the skill or 
labor contributed to the joint product may constitute the 
principal element, and carry the ownership, there can, 
on principle, be no reasonable doubt. 

This view is in accordance with the Roman law which, 
in case of a fine painting on canvas, deemed the latter 
the accessory, and awarded the picture to the artist by 
right of accession. Mr. Kent suggests that the Koman 
law on this point was inconsistent, in holding that the 
same rule did iiot apply to a poem or history, but gave 
the joint product to the person furnishing the paper or 
parchment. But Blackstone's comment upon the rule of 
the Roman law in question seems to relieve it from 
inconsistency. After stating the rule involving the sup- 
posed inconsistency, he adds, ' ' meaning thereby the 
mechanical operation of writing, for which it directed 
the scribe to receive a satisfaction ; for in works of genius 
and invention, as in painting on another man's canvas, 
the same law gave the canvas to the painter." This 
explanation vindicates the consistency of the Roman law, 
and at the same time recognizes the just rule that the 
minor contributor is not denied compensation for his 
labor or materials.' 

' Citations supra, under § 38; Pulcifer v. Page, 32 Me , 404; Merritt 



§ 41.] MATERIALS UNITED. 69 

The rule that the most important or valuable con- 
stituent of the combination draws to itself as accessories 
all the others, finds illustration in the case of building 
materials furnished by one person, and by him wrought 
into a house on the land of another. In such case,'under 
the combined operation of personal, converted into real, 
property, and the right of accession, the materials will 
belong with the house to the owner of the land, provided 
the building be of such a character as to make it part of 
the realty. Generally, however, the builder is entitled 
to compensation for his materials and labor, either by 
express or implied contract. 

The doctrine is sometimes laid down without qualifica- 
tion, that where the materials of one person are converted 
by another into a new species of chattel, and the identity 
of the materials destroyed, the new product belongs to 
the transformer; as where wine, oil, or bread, is made 
out of another's grapes, olives, or wheat.' But the rule 
thus broadly stated needs qualification. The true doc- 
trine, the writer thinks, is pronounced by the Court of 
Appeals of New York, in the case of Silsbury v. MoGoon. 
The question is there thoroughly discussed by several of 
the judges ; and the report gives also, the very learned 
and elaborate argument of that eminent lawyer, the late 
Nicholas Hill, of counsel for the plaintiffs in error. The 
reporter's head "notes bearing upon this question, are as 
follows : " If a chattel ' wrongfully taken retains its 

V. Johnson, 7 Johns., 473; Betts v. Lee, 5 Johns., 338; Stevens v. 
Briggs, 5 Pick., 177; Gregory v. Stryker, 3 Den., 638; Eaton v. Mun- , 
roe, 52 Me., 63. 

> 2 Kent. Com., pp. 364, 365; 2 Black. Com., p. 405; Silsbury v. Mc- 
Coon, 6 HiU, 435. 



70 PEODUCTS OF INTELLECTUAL LABOR. [ § 42. 

original form and substance, or may be reduced to its 
original materials, it belongs to the original owner; 
and this rule, it seems, holds against an innocent pur- 
chaser from the wrong-doer, without regard to the 
increased value bestowed hj him upon the chattel." 

' ' But if the chattel be converted by an innocent pur- 
chaser or holder into a thing of a different species, as 
where wheat is made, into bread, olives into oil, or grapes 
into wine, the original owner cannot reclaim it." 

' 'There is no such distinction, however, in favor of a will- 
ful wrong-doer. He can acquire no property in the goods- 
of another by any change wrought in them by his labor 
or skill, however great the change may be, provided the 
article was made from the original material. There is 
no difference between the civil and the common law in 
this respect. ' ' 

That a person cannot acquire title by a willful tort, as 
against the true owner, is not only just in itself, and in 
harmony with the general doctrines and spirit of the law, 
but is sanctioned by numerous adjudications.' 

§ 42. Products of intellectual labor. — These consti- 
tute the third division of the first general way of acquir- 
ing title to personal property, that of original acquisition ; 
and embrace patents for inventions and designs, copy- 

■ Citations supra; Brown v. Sax, 7 Cow., 95; Curtis v. Groat, 6 
Johns., 169; Chandler v. Edson, 9 Johns., 363; Betts et al. v. Lee, 5 
Johns., 348; Babcock v. Gill, 10 Johns., 287; Baker v. Wheeler, 8 
Wend., 505, 508; Hyde v. Cookson, 21 Barb., 93; Eaton v. Munroe. 52 
Me., 63; Riddle v. Driver, 12 Ala., 590; Strubee v. Cincinnati So. Ry. 
Trustees, 78 Ky., 481; s. c. 39 Am. Rep., 251; Wetherbee v. Green, 22 
Mich., 311. 



§ 43. J ' PATENTS. 71 

right, letters addressed from one correspotident to 
another, lectures and telegrams. 

The general doctrine in regard to proprietary rights in 
the products of intellectual labor is, that every one has a 
natural right to, and dominion over, his own ideas and 
the fruits of his brain-work ; he may keep them to him- 
self or impart them to others at his option; but 
when once voluntarily published by him, in the absence 
of statutory provisions for their protection, they are 
beyond his control, and become the property of the pub- 
lic, equally available to all. Hence, for the purpose of 
promoting science, encouraging literature, and stimulat- 
ing inventions, legislation is invoked, by which the 
natural rights of authors and inventors are protected, 
and the public at the same time benefited by their genius. ' 

§ 43. Patents for inventions and designs The 

practice of patent law is generally a specialty, confined 
to a few members of the profession. A thorough knowl- 
edge of the subject is essential to the successftd practi- 
tioner ; and such a knowledge can be acquired only by a 
careful study of the text-books, statutes, and adjudica- 
tions relating exclusivel}'' to the law of patents. It will 
not, therefore, be attempted in this treatise to do more 
than give an outline view of the subject, showing the 
nature, and mode of obtaining, a patent, and the general 
principles and rules applicable to this species of personal 
property, 

> 2 Kent Com., pp. 365, 366; 3 Black. Com., p. 406; 1 Sch. Pers. 
Prop., p. 654; 3 Id., p. 29; Williams Pers. Prop., p. 235, etseq.; Good- 
eve Pers. Prop., pp., 180, 181; Bell's Princp., § 1349; Phillips Pat., 
ch. 11; Drone Copyr., p. 1, et seq.; Bouv. L. Diet., "patent," " copy- 
right;" Curtis, Pat. (3 Ed), preliminary obs. 



72 PATENTS. [ § 43. 

A patent is concisely and accurately defined to he 
'■' a grant by the state of the exclusive privilege of mak- 
ing, using, and vending, and authorizing others to make, 
use, and vend, an invention. ' ' ' The grant by govern- 
ment is upon certain conditions ; the grant on one side, 
and a compliance with the conditions on the other, con- 
stituting in effect a contract. In consideration of the 
probable benefits that may accrue to the public from a 
knowledge and use of a patentable invention, and also 
with the view of stimulating and fostering inventive 
genius, the state offers to the inventor its guaranty of an 
exclusive right to his invention for a limited period, on 
condition that he wiU publish it in such a manner that it 
may become available to the public at large on the expi- 
ration of his exclusive term, and on certain other pre- 
scribed conditions. Under this governmental guaranty, 
the inventor retains his exclusive right after publication 
for the stipulated term, and has a property therein which 
is under the protection of law as fully as any property to 
which he may have title. 

In the United States, Great Britain, and a majority of 
foreign states, the subject of patents is regulated by 
statute, and in most, if not all, foreign states having no 
legislation on the subject, special privileges are granted 
to inventors through the executive departments of their 
respective governments.' 

The authority for patent legislation in the United 
States is derived from the Federal Constitution, which 
confers upon Congress the power : "To promote the 

• 3 Kent Com., p. 366; Phillips Pat., p. 8. 
' Whitman Pat. Law, Part II. 



§ 44r.] ESSENTIALS. 73 

progress of science and useful arts, by securing for limited 
times to authors and inventors the exclusive right to their 
respective writings and discoveries. " ' Under this pro- 
vision of the Constitution acts of Congress have been 
passed from time to time, culminating in the act of revis- 
ion and consolidation passed July 8, 1870.' 

§ 44. Essentials of a patentable invention or dis- 
covery. — -To entitle a person to the privileges and pro- 
tection offered by the government, he must, first of all, 
present a patentable invention or discovery. The essen- 
tials of such invention or discovery, under the laws of 
the United States, are as follows : 

1. The alleged invention or discovery must be new, 
' ' not known or used by others in this country. ' ' Novelty 
is essential ; and it is new in contemplation of the patent 
law when, and only when, it is suhstomtially different 
from what has been known to precede it. ' 

. In determining the question of novelty, the character 
of the result, and not the apparent amount of skill, 
ingenuity, or thought, exercised by the inventor, is the 
controlling consideration. If the result, or the mode of 
producing the result, be substantially different from 
what has gone before, the requisite of novelty is so far 
satisfied. * 

' U. 8. Const., Art. I, Sec. 8. 

' U. S. Rev. St. (3 Ed.), §§ 4883-4947; citations mpra under § 42. 

» U. S. Rev. St. (3 Ed.), § 4886. 

* Curtis Pat., § 41: Kneass v. The Schuylkill Bank, 4 Wash., 9, 11; 
Davis V. Palmer, 3 Brock., 398, 310; Hall v. Wiles, 3 Blatchf., 194- 
300; Ryan v. Goodwin, 3 Sum., 514, 518; Foote v. Silsby, 3 Blatchf., 
560; Crane v. Price, Webs. Pat. Gas., 409. 



74 ESSENTIALS. [ § 44. 

The invention must be new as to all the public ; not 
the abstract discovery merely, but the concrete invention ; 
not the newly discovered principle resting in the brain of 
the discoverer, but the principle embodied and utilized 
in an "art, machine, manufacture, or composition of 
matter." ' 

Moreover, the embodied result of the alleged invention 
or discovery must be new, and not merely the purpose to 
which it is applied, constituting what is known as "a 
double use." Illustrating this essential of novelty, 
Buller, J. , said, ' ' it would be a very extraordinary thing 
to say that, all mankind having been accustomed to eat 
sowp with a spoon, a man could take out a patent because 
he says you might eat peas with a spoon. ' ' * 

2. Another requisite of a patentable invention is 
utility. It must be , both new and useful. The degree 
of utility, however, is not important ; but the invention 
must have, at least, a small measure of usefulness. 
Inventions of a mischievous or immoral nature, and such 
as are wholly useless, arenot patentable. For illustra- 
tion, in 1870, an application was made for letters patent 
for "a new process of making butter, to be used in the 
place of ordinary butter. ' ' The process of manufacture 
described by the apphcant consisted in taking about ten 

' Washburn v. Gould, 3 Story, 132; Reed v. Cutter, 1 Id., 590: 
Woodcock V. Parker, 1 Gall., 438; Lowell v. Lewis, 1 Mass., 182; 
Allen V. Blunt, 2 Woodb. & M., 121; Parker v. Ferguson, 1 Blatclif., 
407; EUithorp v. Robertson, 4 Id., 307; Manny v. Jagger, 1 Id., 372; 
Parkhurst v. Kinsman, Id., 488; Goodyear y. Day, 2 Wall., jr., 283; 
Colt V. Mass. Arms Co., 1 Fish., 108. 

" Losh V. Hague, 1 Web. Pat. Cas., 207; Benton v. Hawkes, 4 B. & 
Aid., 540, 550; Bean v. SmaUwood, 2 Story, 408; Hotchkiss v. Green- 
wood, 11 How., 248. 



§ 44.] ESSENTIALS. 75 

pounds of" ordinary butter, and washing it in clear lime 
water; next, warming the butter and mixing it with 
sweet milk and flour into paste; and then coloring it 
with eggs, carrot, or annotta and tumeric ; thus increas- 
ing the weight of the compound to eighteen pounds of 
' '■prime dairy hutter. ' ' The application was rejected as 
iiot possessing the patentable requisite of utility. ' 

3. To be patentable, the invention must not have been 
known or used by others in this country. The appli- 
cant for a patent must have been not only an original, 
but the first inventor ; that is, the first inventor who has 
reduced his invention to a practical condition. The 
statute on the subject contemplates a knowledge and use 
existing in a form and condition accessible to the public ; 
and, therefore, a machine constructed for experiment 
merely, and not completed or practically tested, is no bar 
to a patent for a perfected practical invention. ' 

Two persons may have conceived the same machine, 
each being an original inventor ; but the one who first 
reduces his conception to practice, or to a condition in 
which it may be utilized for its purpose, is the first 
inventor, and entitled to a patent. In such case the 
maxim applies, ' ' Qui prior est in tempore, prior est in 
jure. ' ' ' 

• Curtis Pat., § 106; Bedford v. Hunt, 1 Mason, 801, 303; Whitney 
V. Emmett, 1 Baldw., 803; Manny v. Jagger, suxyra; Stanley v. 
Whipple, 2 McLean, 35; Wintermute v. Eeddington, 1 Fish., 239; 
Page V. Ferry, Id., 398. 

' Eeed v. Cutter, Woodcock v. Parker, Lowell v. Lewis, and Wash- 
burn v. Gould, supra; Cahoon v. Ring, 1 Cliflf., 592; Teese v. Phelps, 
1 McAll., 48; and Ellithorp v. Robertson, Parkhurst v. Kinsman, 
Goodyear v. Day, supra. 

• Citations supra ; AUenv. Hunter, 6 McLean, 303; Cox v. Griggs, 



76 ESSENTIALS. [ § 44. 

4. To entitle an applicant to a patent, the invention 
must not have been ' ' patented or described in any printed 
publication in this or any :^oreign country, before his 
invention or discovery thereof, and not in public use or 
on sale for more than two years prior to his application, 
unless the same is proved to have been abandoned. ' ' ' 

The language of the statute is, be it noted, " "before Ms 
invention or discovery,^'' and not before his application 
for a patent. It may weU happen that a foreign patent, 
or the pubhcation mentioned in the statute, ante-dates the 
oipplicai/ion, but not the invention / the former of which 
the courts say is not sufficient to bar or invahdate a 
patent. It is also held, that to give effect to the ' ' printed 
pubhcation" mentioned in the statute, the description 
therein of the invention must have been so fuU, clear and 
■ accurate, that from it a competent mechanic, instructed 
in the business to which it relates, could embody and 
utilize its principles in a practical manufacture.' 

The "two years" clause in the statute is a recogni- 
tion and embodiment of a provision first introduced into 
our system of patent law by an act of Congress passed 
in 1839. Prior to that act, if an inventor consented to 
the public use of his invention at any time before appli- 
cation for a patent, however limited such use, he might 
forfeit his right to a patent. ISTow, he may experiment 

2 Fish., 174; Many v Sizer, 1 Id., 17; Singer v. "Walmsley, Id., 558; 
Matthews v. Skates, Id,, 602; Rich v. Lippincott, 3 Id., 1; Johnson 
V. Root, Id., 291. 

' U. S. Rev. Stat. (2 Ed.t, § 4886. 

'O'ReiUy V. Morse, 15 How., 62; Smith v. Ely, Id., 137; Parker 
V. Stiles, Id., 44; Judson v. Cope, 1 Fish., 615; Hays v. Sulsor, Id., 
532; Bartholomew v. Sawyer, Id., 516; White v. Allen, 2 Fish., 440. 



§ 45. J VALID PATENT. 77 

himself in private or public, and permit others to use his 
invention during the ' ' two years, ' ' without losing his 
right, provided it do not appear that he intended to 
abandon his invention, or dedicate it to the public' 

§ 45. Mode of obtaining, and conditions, of a valid 
patent. — If the invention be patentable within the rules 
now stated, and the inventor wishes to obtain letters 
patent therefor, he must make application to the com- 
missioner of patents in the manner prescribed by statute. 
The application must be accompanied by a written 
description of the invention, "and of the manner and 
process of making, constructing, compounding, and using 
it, in such full, clear, concise, and exact terms as to 
enable any person skilled in the art or science to which 
it appertains, or with which it is most nearly con- 
nected, to make, construct, compound, and use .the 
same; and in case of a machine, he shall explain the 
principle thereof, and the best mode in which he has 
contemplated applying that principle, so as to dis- 
tinguish it from other inventions; and he shall par- 
ticularly point out and distinctly claim the part, improve- 
ment, or combination which he claims as his invention or 
discovery." ' 

When the subject of the invention is a composition of 
matter, the applicant, when required by the commis- 
sioner, must furnish specimens of ingredients, and of the 

> MoCormick v. Seymour, 3 Blatchf., 340; s. c, 16 How., 480, 
and 19 How., 96; Root v. Ball, 4 McLean, 177; Sanders v. Logan, 3 
Fish., 167; Bell v. Daniels, 1 Id., 373; Hovey v. Henry, West. Law 
J., 153. 

' U. S. Rev. St. (3 Ed.), § 4888, and cases there cited. 



78 VALID PATENT. [ § 45. 

composition, sufficient in qua,ntity for the purpose of 
experiment. ' 

In oases which admit of representation by model, the 
applicant, if required by the commissioner, shall furnish 
one of convenient size to exhibit advantageously- the 
several parts of the invention or discovery ; and when 
the nature of the case admits of drawings, the applicant 
must furnish a copy to be filed in the patent office ; and 
a copy of these is issued with the patent when granted, 
and forms part of the specification." 

There are other conditions precedent to the issuance of 
letters patent, but these are the most important. Their 
purpose is, to render the invention available to the public 
on the expiration of the patent ; and hence the requisite 
of a specification from which alone the invention could 
be constructed and used. The benefit to the pubhc con- 
stitutes the principal consideration of the grant, and a 
want or failure of consideration would invalidate the 
patent. It is of special moment that the inventor's 
claim be intelligently and carefuUy stated in the specifi- 
cation. It should be as broad as the invention, but no 
broader; should clearly discriminate between the old 
and the new ; must not contain statements intended to 
deceive the public ; and should be free from ambiguity. 
A mistake in any of these particulars would be danger- 
ous, and might vitiate the grant. 

An applicant with a patentable invention, or one that- 
the officials at the patent office regard as patentable, 

' TJ. S. Rev. St. (3 Ed.), § 4890. 

« U. S. Rev. St. (2 Ed.), § 4891 ; Hogg v. Emmerson, 6 How., 437; 
MoCormick v. Talcott, 30 Id. , 409. 



§ 45. J VALID PATENT. . 79 

having complied with all the conditions prescribed by 
the government, is entitled to letters patent, granting to 
him, "his heirs or assigns, for the term of seventeen 
years, the exclusive right to make, use, and vend the 
invention or discovery throughout the United States, and 
the Territories thereof. ' ' ' 

Patents thus vgran ted SiXe prima facie valid; but in an 
action for infringement, the defendant may defeat the 
plaintiEf by shovring the invalidity of the grant on either 
of the following grounds :' 

First. ' ' That for the purpose of deceiving the public 
the description and specification filed by the patentee in 
the patent oifice was made to contain less than the whole 
truth relative to his invention or discovery, or more than 
is necessary to produce the desired effect ; or, 

Second. ' ' That he had surreptitiously or unjustly 
■obtained the patent for that which was in fact invented 
by another, who was using reasonable diligence in adapt- 
ing and perfecting the same ; or. 

Third. ' ' That it had been patented or described in 
some printed publication prior to his supposed invention 
•or -discovery thereof ; or, 

Fourth. "That he was not the original and first 
inventor or discoverer of any material or substantial part 
•of the thing patented ; or. 

Fifth. ' ' That it had been in public use or on sale in 

' U. S. Rev. St. (3 Ed.), § 4884. and cases there cited. 

» Curtis Pat., § 473; Alden v, Dewey, 1 Story, 336; Woodworth v. 
■Sherman, 3 Id., 173; Stearns v. Barrett, 1 Mason, 153; Minter v. 
Wells, Webs. Pat. Cas., 129; Phila. <& Trenton R. Co. v. Stimpson, 14 
Pet., 458; U. S. Rev. St. (2 Ed.), § 4930, and cases there cited. 



80 OTHEK POINTS OF PATENTS. [ § 46. 

this country for more than two years before his applica- 
tion for a patent, or had been abandoned to the public. ' ' 

Unfortunately for sanguine inventors, many patents 
are issued that will not bear the test of a thorough judi- 
cial investigation. 

§ 46. Other points in the law of patents. — There 
may be granted for the term of three years and six 
months, for seven years, or for fourteen years, as the 
applicant may elect, patents for designs; and all the 
regulations and provisions of the statutes in relation to 
obtaining or protecting patents for inventions or dis- 
coveries will apply to patents for designs so far as the 
same may be applicable thereto, and not inconsistent with 
other provisions of the statutes.' 

A patent for a new and useful improvement of an 
" art, machine, manufacture, or composition of matter," 
may be granted with the same rights, and under the 
same rules and conditions, as for an original ; but if the 
original be patented, the patentee of the improvement 
does not, by his grant, acquire any right in the former 
patent ; nor does the patentee of the original, by virtue 
of his patent, acquire any right in or to the patented 
improvement.' 

There maj, also, be a valid patent for a combination 
of several things, whether the constituents of the com- 
bination are, or are not, separately patented. The 

' U. S. Rev. St. (3 Ed.), g§ 4939-4993. 

' U. S. Rev. St. (3 Ed.), § 4886; Curtis Pat., §§ 35, 42; Rex v. Ark- 
wright, Webs. Pat. Cas., 71, 72, 73; Kneass v. The Schuylkill Bank, 4 
Wash., 9, 11; Whitney v. Emmett, 1 Baldw., 303; Pitts v. Wemple, 
6 McLean, 558; Woodworth v. Rogers, 3 Woodb. & M., 135. 



§ 4:6.j OTHER POINTS OF PATENTS. 81 

patent, be it noted, is for the combination, and not for 
any or all of its elements separately. As the combina- 
tion patented consists in the union of a certain number of 
things, a union of less than the prescribed number does 
not constitute the combination, and is not protected by 
the patent ; nor does the use of one or more of the con- 
stituent elements, less than the whole number forming 
the combination, constitute an infringement of the 
patent. If a patent for any of the elements be held by 
another, the patentee of the combination does not, by 
virtue of his grant, acquire any right in such other 
patent; nor does the patentee of the element, by virtue 
of his patent, acquire any right to use the patented com- 
bination . ' 

A patent is property, and the owner has the same 
right to dispose of it as have the owners of any other 
species of personal property. He may assign it in whole 
or in part, for aU or a portion of the territory covered by 
it, thus giving the assignee a right in the patent itself ; 
or he may grant special licenses under it, giving the 
licensee the privilege of making, using, or selling the 
invention, on payment of a royalty. 

For infringement of a valid patent the law affords 
ample remedies in the Federal Courts, by actions at law, 
suits in equity, and injunctions." 

There are other questions connected with the law of 
patents ; but they are not essential to a general view of 

' 1 Curtis Pat. §§ 111, 333; Buck v. Hermanoe, 1 Blatchf., 398; For- 
bush V. Cook, 20 Law R., 664; Barrett v. Hall, 1 Mason, 447; Pitts v. 
Whitman, 3 Story, 609; Lee v. Blandy, 3 Fish., 89; Pitts v. Wemple, 
6 McLean, 558. 

' U. S. Eev. St. (8 Ed.), §§ 4919, 4993; Curtis Pat., §§ 494-499. 
6 



8^ COPTEIGHT. [ § 4/. 

the principles involved in the subject, and are omitted 
from this discussion for the same reasons stated sv^ra, 
under § 43. 

A few, only, of the numerous authorities on the sub- 
ject of patent law have been cited in the outline view 
■now presented. 

§ 47. Copyright. — This product of intellectual labor 
furnishes another instance of title to personal property 
by original acquisition. "Copyright is the exclusive 
right of the owner to multiply and to dispose of copies of 
an intellectual production. It is the sole right to the 
copy or to copy it. " ' Otherwise stated it "is the exclu- 
sive right of the owner to possess, use, and dispose of 
intellectual productions," which have the attributes of 
property ' ' when embodied in written or spoken lan- 
guage. ' ' ' 

The nature and source of this right has been the sub- 
ject of much learned discussion ; the principal question 
being its source, whether a natural right recognized and 
protected by the common law, or a statutory grant ; and 
if the former, whether the right is lost by publication, 
or destroyed by statute. ' The limited scope of this work 
will not permit a presentation of the arguments and 
authorities pro and con; nor is such a presentation 
requisite to a correct statement of the law of copyright 
as now settled. A full and very able historical and 
critical discussion of the subject may be found in ' ' Drone 

' Drone Copyr., pp. 100, 101; Williams Pers. Prop , p. 246. 
' Drone Copyr., pp. 97, 98. 
' Drone Copyr., pp. 1, 2. 



§ 47.] COPYRIGHT. 83 

on Copyright," to which reference is herein freely made 
as the best service the author could render his readers. 

It seems quite clear that, prior to the statute of Anne 
in 1710,' the common law right was unquestioned in 
England; and that for half a century thereafter the 
courts of chancery recognized the right, holding in effect 
that it was not lost by publication, or destroyed fcy 
statute.' In the case of Milla/r v. Taylor^ decided by 
the Court of K. B. in 1769, the question was thoroughly 
discussed, and decided in accordance with the opinions of 
Lord Mansfield and Justices Aston and Willes, sustaining 
the common law right, Justice Yates dissenting. But 
five years later the House of Lords decided the question 
adversely to the Court of K. B. , holding that the com- 
mon law right, if any existed, could not be exercised 
beyond the time limited by statute.' 

The English statute was copied by Congress in 1790, 
and the Supreme Court of the United States, in Whea^n 
V. Peters,* decided in 1834, followed the English case of 
Donaldson v. Becket. 

It is now the settled doctrine, both in England and the 
United States, that at common law the author of an 
unpublished literary composition has an absolute prop- 
erty therein. It is personal property, and governed by 
the same rules, and entitled to the same protection, as 
other personal property. But when published in print, 
the common law right is lost, unless protected by statute ; 

' 8 Anne, Ch. 19. 

' Drone Copyr., pp. 1, 54-83; Millar v. Taylor, 4 Burr., 3303. 

« Donaldson v. Becket, 4 Burr., 3408; and Drone Copyr., cited supra. 

* 8 Pet., 591; and see citations supra. 



84 STATQTOEY EIGHT. [ § ^8. 

the author or proprietor having then ' ' no exclusive com- 
mon law right to multiply copies, or to control the sub- 
sequent issue of copies by others;" the right to multiply 
copies to the exclusion of others being the creation of 
statute. ' 

Practically, in this country, the proprietary right after 
publication, namely, the exclusive right to the profits of 
publication, rests upon, and is regulated and protected by, 
the acts of Congress. 

§ 48. How to secure the statutory right. — The 

same constitutional provision which gives to Congress 
jurisdiction of the subject of patents, confers upon it 
authority to legislate on the subject of copyright." By 
virtue of this authority Congress has enacted ° that : 
" Any citizen of the United States or resident therein, 
who shall be the author, inventor, designer, or proprietor 
of any book, map, chart, dramatic or musical composi- 
tion, engraving, cut, print, or photograph or negative 
thereof, or of a painting, drawing, chromo, statue, statu- 
ary, and of models or designs intended to be perfected as 
works of the fine arts, and the executors, administrators, 
or assigns of any such person shall, upon complying with 
the provisions of this chapter, have the sole liberty of 
printing, reprinting, publishing, completing, copying, 
executing, finishing, and vending the same ; and, in the 

'Drone Copyr., pp. 101-104; Donaldson v. Becket, 4 Burr, 2408; 
Oolburn v. Simms, 2 Hare, 543; JefEerys v. Boosey, 4 H. L. C, 963; 
Prince Albert v. Strange, 2 De G. & Sm.', 652; Wheaton v. Peters, 8 
Pet., 591; Pulte v. Derby, 5 McLean, 328; Palmer v. De Witt, 47 
N. Y., 533; Rees v. Peltzer, 75 111., 475; Boucicaultv. Wood,3Biss.,34. 

'U. S. Const., Art. I., §8. 

• U. S. Rev. St. (2d Ed.), g 4952. 



§ 48.] SXATUTOKX EIGHT. 85 

case of a dramatic composition, of publicly performing or 
representing it, or causing it to be performed or repre- 
sented by others. And authors may reserve the right to 
dramatize or to translate their own works." 

To entitle a person to a copyright he must, 

1. Before publication, "deliver at the office of the 
librarian of Congress, or deposit in the mail addressed to 
the librarian of Congress, at Washington, District of 
Columbia, a printed copy of the title of the book or other 
article, or a description of the painting, drawing, chromo, 
statue, statuary, or a model or design of a work of the flue 
arbs, for which he desires a copyright." ' 

2. "JS'ot later than the day of the publication thereof in 
this or any foreign country, deliver at the office of the 
librarian of Congress, at Washington, District of Columbia, 
two copies of such copyright book or other article; or in 
case of a painting, drawing, statue, statuary, model, or de- 
sign for a work of the fine arts, a photograph of the same. ' ' ^ 

3. "The proprietor of every copyright book or other 
article shall deliver at the office of the librarian of Con- 
gress, or deposit in the mail addressed to the librarian of 
Congress at Washington, District of Columbia, not later 
than the day of the publication thereof in this or any for- 
eign country two complete printed copie ■. thereof, of the best 
edition issued, or description or photograph of such article 
as hereinbefore required, and a copy of every subsequent 
edition wherein any substantial changes shall be made." ' 

1 U. S. Rev. St. (2 Ed.), § 4956. 

2 U. S. Rcv. St. (2 Ed.), ? '4956. 
» U. S. Rev. St. (2 Ed.), i 4959. 



86 " STATUTOET EIGHT. [ § ^8- 

For a failure to comply with either of the last two pro- 
visions the proprietor of the copyright is liable to a pen- 
alty of twenty -five dollars,' ' 

4. Pay to the librarian of Congress for recording the 
title or description of any copyright book or other article, 
fifty cents ; and for every copy under seal of such record 
actually given to the person claiming the copyright, or his 
assigns, fifty cents.' 

A compliance with the foregoing conditions secures to 
the author, inventor, or designer, a copyright for the 
term of twenty-eight years.' 

And, upon recording the title of the work, or descrip- 
tion of the article so secured, a second time, and comply- 
ing with all other regulations in regard to original copy- 
right, within six months before the expiration of the first 
term, the author, inventor, or designer, if he be still liv- 
ing and a citizen of the United States or a resident 
therein, or his widow or children if he be dead, shall 
have the same exclusive right continued for the further 
term of fourteen years. ' ' And such person shall, withih 
two months from the date of said renewal, cause a copy 
of the record thereof to be published in one or more 
newspapers, printed in tlie United States, for the space 
of four weeks. ' ' * 

Literary property in'unpublished work, being personal, 
is assignable, and governed by the general rules applica- 

' U S. Rev. St. (2 Ed.), § 4960. 
' U. S. Rev. St. (3 Ed.), § 4958. 
» U. S. Rev. St. (3 Ed.), § 4953. 
« U. S. Rev. St. (2 Ed.), § 4954. 



§ 49. J ESSENTIALS TO COPYKIGHT. 87 

ble to other personal property.' And copyright is 
expressly made assignable by statute.* 

To entitle the owner to maintain an action for infringe- 
ment of his copyright, he must ' ' give notice thereof by 
inserting in the several copies of every edition published, 
on the title page or the page immediately following it, if 
it be a book ; or if a map, chart, musical composition, 
print, cut, engraving, photograph, painting, drawing, 
chromo, statue, statuary, or model, or design intended to 
be perfected and completed as a work of the fine arts, by 
inscribing upon some portion of the face or front thereof, 
or on the face of the substance on which the same shall 
be mounted, the following words, ' Entered according to 
Act of Congress, in the year , by A. B. , in the office 

of the librarian of Congress, at "Washington. ' ' Or, 
' Copyright, 18 , by A. B.' " * 

A person inserting or impressing such notice, who has 
not obtained a copyright, is liable to a penalty of one 
hundred dollars. ' 

§ 49. Essentials to copyright. — Legislation is silent 
in regard to the character and qualities essential to copy- 
right, and the law must be sought in judicial records. On 
several points the courts have spoken, and the following 
rules may be regarded as established : 

1, Originality. — That originality is essential to copy- 

• Drone Copyr. p. 104, et seq. ; Palmer v. DeWitt, 47 N. Y., 538; Par- 
ton v. Prang, 3 CUflf., 537, 550; Little v. Gould, 2 Blatohf., 165, 363. 

» U. S Rev. St. (3 Ed.), g 4955; Stat. 5 & 6 Vict. c. 45, s. 25. 
' U. S. Rev. St. (3 Ed.), § 4963. 

* Drone Copyr. p. 265, n. 8. 

' U. S. Rev. St. (2 Ed.), § 4963. 



88 ESSENTIALS TO OOPYEIGHT. [ § 4:9. 

right admits of no reasonable doubt. The constitutional 
authority to legislate on the subject was given to Con- 
gress for the purpose of promoting ' ' the progress of 
science and the useful arts, by securing for limited times 
to authors and inventors the exclusive right to their 
respective writings and discoveries. ' ' ' Both the letter 
and the spirit of this provision demand originality and 
exclude plagiarism ; require honesty and give no counte- 
nance to fraud; and on this point the courts are in 
accord. But what constitutes originality, or when that 
requisite is wanting in a work, it is not always easy to 
determine. The test of originality furnished by Mr. 
Drone is the following : "In all cases, whatever may 
be the kind or character of the work for which protec- 
tion is claimed, the true test of originality is whether the 
production is the result of independent labor, or of copy- 
ing. A close resemblance between two publications may 
afford strong evidence of copying; and in some cases, 
especially when the similarity is not explained, it may 
amount to conclusive proof of piracy. But, when it is 
established that a work is the result of honest authorship, 
its likeness to another publication is immaterial." ' 

2. Merit or value. — That a production should possess 
some merit or value, literary or other, to entitle it to the 
privilege and protection of the copyright law is quite 
obvious. There are quite enough objects and subjects of 
weighty human interest to engage the genius and labor 
of writers and compilers of every grade, without adding 
to the catalogue things of no value or importance. But 

> U. S. Const, Art. I., § 8; Drone Copyr., pp. 198-208. 
' Drone Copyr., p. 208. 



§ 49. J ESSENTIALS TO COPYEIGHT. 89 

mere literary merit is not essential to copyright ; it is 
enough that a production may contribute to useful knowl- 
edge; and the courts have been quite liberal in this 
direction, extending the protection of the copyright law 
to compilations of various kinds, annotations consisting 
of common materials, collections of statistics, calendars, 
catalogues, and other compilations involving no literary 
ability." 

3. Seditious or libellous puhlications. — The law uni- 
versally condemns publications which are seditious and 
libellous, and cannot, therefore, consistently extend to 
them its protection. Such publications are justly treated 
as outlaws. On this point there is no ground for con- 
trariety of judicial opinion, and none is found in reported 
cases. ' 

4. Immoral productions. — These,_ like seditious and 
libellous publications, are under the condemnation of the 
law, and excluded from its protection. The law has no 
higher or nobler function than the encouragement and 
protection of public and private morality. This truth is 
expressed in the spirit of Blackstone's definition of 
municipal law, " a rule of civil conduct prescribed by the 
supreme power in the state, commanding what is right 

' Drone Copyr , pp 153, 208-213; Folsom v. Marsh, 3 Story. 109; 
Scoville V. Tolland, 6 West. Law Jour., 84; Collender v. Griffith, 11 
Blatohf., 311; Lawrence v. Dana, 3 Am. L. T. R. N. S., 433; Jarrold 
V. Houlston, 3 Kay & J., 708; Pike v. Nicholas, 20 L. T. N. S., 906; 
Gray v. Russell, 1 Story, 11; Story's Ex'rs. v. Holcombe, 4 McLean, 
306; Barfieldv. Nicholson, 2 Sim. & St., 1; Carey v. Faden, 5 Ves., 
34; Matthewson v. Stockdale, 12 Ves., 270; Scott v. Stanford, Law 
Rep. 3 Eq., 718; Lawrence v. Dana, 2 Am. L. T. R. N. S., 403. 

' Drone Copyr., pp. 113-114, 181-185. 



90 ESSENTIALS TO COI'VRIGIIT. [ § ^9. 

and prohibiting what is wrong. ' ' ' This definition has 
been criticised as in some respects inaccurate ; but it may 
well be questioned whether the criticisms are not hyper- 
critical." 

5. Blasphemous pxMications. — From the principles 
already stated it is clear that publications of a blasphe- 
mous character cannot be the subjects of copyright, and 
are not, of course, under the protection of copyright law. 
This rule is recognized and enforced by the courts, both 
in Great Britain and the United States. But, what con- 
stitutes blasphemy, and what liberty is permitted to an 
author in treating of religious subjects, are perplexing 
questions for judicial determination. The decisions on 
the subject do not furnish a satisfactory solution of the 
questions ; and from the nature of the case it seems quite 
impossible to establish a definite and universal rule for 
the trial and test of every case that may arise. The con- 
dition of society, the character of the government, the 
local laws, public opinion, and the sentiments of the tri- 
bunal, wiU to a greater or less extent affect the decision 
of each particular case presented for adjudication. 
While, therefore, there is unity of judicial opinion regard- 
ing the principle involved, there will necessarily be diver- 
sity in its application, even where the facts are substan- 
tially the same. 

From the liberal character of the government of the 
United States, and the freedom of religious belief and 

' 1 Black Com., p. 44. 

« Drone Copyr., pp. 112-114, 185-187; Stoctdale v. Onwhyn, 5 
Bam. & C, 173; Martinetti v. Maguire, 1 Deady, 216; Keene v. 
Kimball, 16 Gray, (82 Mass.), 548; Shook v. Daly, 49 How. Pr., 366, 
368 



§ 50. J REMEDIES FOE INFRINGEMENT. 91 

worship accorded to all its citizens, it may reasonably be 
inferred that large liberty of discussion and publication 
on moral and religious subjects would be permitted. And 
such is the fact, as appears from our comparatively 
meager judicial records involving the subject. But in 
this country, nevertheless, there are limitations to the 
liberty of speech and the press ; and there is such a thing 
as hlasphemy known to the law, and punishable as a 
crime.' 

§ 50. Remedies for infringement Both the common 

law and statutory rights of authors and proprietors of 
brain products are amply protected by law. Eemedies 
by actions at law, suits in equity, and injunction, are 
available for any invasion of these rights. 

In the case of common law property, if the owner's 
manuscriiJt be published in print, his dramatic or musical 
composition be publicly performed, or copies of hia work 
of art be either publicly circulated or exhibited, without 
his consent, his rights are invaded ; and in such case the 
State courts are open to the injured party for redress.' 

Tor a violation of statutory copyright the remedies, 
legal and equitable, are provided by the statutes which 
confer the right ; but in such cases the remedies must be 
sought in the Federal courts.* 

' Drone Copyr, pp. 187-196 ; People v. Buggies, 3 Johns., 890 ; Com- 
monwealth V. Kneeland, 30 Pick. 206, 320 ; Updegraph v. Common- 
wealth. 11 Serg. & R., 394 ; 1 Bishop Crim. L. §§ 497, 498 ; 3 Id. g§ 
74-78. 

• Drone Copyr. pp. 107-110; Pahner v. DeWitt, 47 N. T., 533. 

> U. S. Rev. St. (3 Ed.), §§ 4963-4970 ; Drone Copyr. pp. 544-552, 
496 et seq. 



S2 LETTEKS. [ § 51, 

§ 51. Letters from one correspondent to another. — 

Letters addressed from one correspondent to another are 
■classed with products of intellectual labor, and possess 
substantially the same proprietary qualities as other 
unpublished manuscripts. 

"When written and sent, to whom do they belong, the 
writer or the receiver ? Or, more accurately, in whom is 
the property of the writing ? This question has elicited 
<jonsiderable discussion by the courts ; but the doctrine 
may now be regarded as settled, that the writer has a 
literary property in his letters, which is not lost by their 
transmission to the receiver.' From this doctrine it 
follows, as a general rule, that the receiver has no right 
to publish the letters without the consent of the writer ; 
and such publication wUl be enjoined by a court of 
■equity.' 

It has been judicially held that a court of equity will 
interpose by injunction for the reason that the unauthor- 
ized publication of private letters is an act of bad faith 
tending to a disturbance of the public peace, a violation 
of the obligations of ' ' social ethics, ' ' and subversive of 
that free interchange of opinions and sentiments essential 
to a well-conditioned state of society." Wtile such pub- 
lication may be justly obnoxious to aU these criticisms, it 

' Drone Copyr , p. 137; Duke of Queensbury v. Shebbear, 3 Eden, 
539; Thompson v. Stanhope, Amb., 733; Pope v. Curl, 3 Atk., 343; 
Granard v. Dunkin, 1 Ball & B., 307; Perceval v. Phipps, 2 Ves. & 
B., 19; How V. Gunn, 33 Beav., 463; Dennis v. Leclerc, 1 Mart., 
-(Orleans T.) 397; United States v. Tanner, 6 McLean, 138; Woolsey v. 
Judd, 4 Duer, 379; Eyre v. Higbee. 33 How. Pr., 198; Grigsby v. 
Breckinridge, 3 Bush, (Ky.) 480. 

' See cases cited under last paragraph. 

» Folsom V. Marsh, 3 Story, 111. 



§ 51. J ^ LETTEES. 93 

is not, according to the prevailing doctrine, for any or 
all of these that a court of equity exercises its restraining 
power, but solely on the ground of protection to the 
literary property of the writer. ' 

There are exceptions to the rule that the writer is the 
owner of the property in the letters written by him. 
For example, the letters of an emiploye written in and 
concerning the business of his employer." So, also, 
official letters written by officers of the government 
belong to the government, with the right to publish 
them or to refrain from so doing, at will, and to restrain 
their unauthorized publication ; and this on the ground 
of public policy.' 

Does the property of the writer depend at all upon the 
literary merit of his letters ? The affirmative of this 
question has been held in some reported cases." But the 
weight of authority decides the question in the negative; 
and reason approves the decision.' Theoretically, and in 
contemplation of the law, every letter has literary merit 
in which a property exists ; albeit the quomtum may be 
microscopic, and undiscoverable by ordinary perception. 
Practically, however, the wisdom of this rule is apparent 
in view of the difficulty of drawing the line between the 
lowest degree of literary merit and zero. The opposite 

' Gee V. Pritchard, 3 Swans., 413; Woolsey v. Judd, 4 Duer, 384; 
Grigsby v. Breckenridge, SBush (Ky.), 486; Perceval v. Phipps, 2Ves. 
& B., 24; Whitmore V. Scovell, BEdw. Ch., 320. 

« Howard v. Gunn, 33 Beav., 462. 

' Drone Copyr., p 133; Folsom v. JJarsh, 2 Story, 113. 

■• Perceval v. Phipps, 3 Ves. & B., 28; Whitmore v. Scovell, 3 Edw. 
Ch., 515; Hoyt v. Mackenzie, 3 Barb. Ch., 330. 

' Woolsey v. Judd, 4 Duer, 379; Grigsby v. Breckinridge, 2 Bush 
(Ky.), 480; Drone Copyr., pp. 133-135. 



94: LECTUEES. [ § ^2. 

rule would render the administratioti of the law on this 
subject embarrassing, uncertain, and unequal; as no 
standard of literary merit could be prescribed that would 
suit all tribunals, and measure aU cases. 

"What rights, if any, has the receiver in a letter 
addressed to him ? So far as this question has been 
passed upon by the courts, the doctrine seems to be 
established that, while he has no literary property in the 
letter, he has a corporeal property in the material on 
which it is written.' He has the right to retain posses- 
sion of it, and is not bound to preserve it for the benefit 
of the writer.' 

It has been held in several cases that the receiver may 
publish a letter when it becomes necessary for the pur- 
pose of vindicating his reputation from false charges or 
unjust imputations made by the writer. ' But Mr. Drone 
dissents emphatically from this holding, and his reason- 
ing on the point is cogent.' 

§ 5'i. Lectures. — Manifestly lectures are a product of 
brain-work; and, on principle and judicial authority, 
their creator has a common law proprietary right in 
them before publication, on the same ground that sup- 
ports an author's right in other unpublished manuscripts.' 
On first view it may be thought that a lecture orally 

' Drone Copyr., pp. 135, 136; Pope v. Curl, 3 Atk., 343; Oliver v. 
Oliver, 11 C. B., n. s., 139; Eyre v. Higbee, S3 How. Pr., 198; Grigsby 
V. Breckinridge, supra. 

' See cases cited last, supra. 

' Perceval v. Phipps, 3 Ves. & B., 19; Folsom v. Marsh, 8 Story, 
111; Woolsey v. Judd, 4 Duer, 379, 407. 

* Drone Copyr., p. 138, 139. 

' Drone Copyr. , p. 107. 



§ 52. J LEGTUEES. 95 

delivered cannot be regarded as a manuscript and entitled 
to protection as such ; but the courts will assume that the 
lecturer has a written composition, either in full or in 
skeleton, from which he speaks memoriter, and is, there- 
fore, the author of a manuscript represented in the oral 
delivery. 

But, will the public reading, or the oral delivery, of a 
lecture by the author operate as an abandonment of his 
exclusive proprietary right therein, and deprive him of legal 
protection from piratical appropriation of his brain-pro- 
duct? If so, the right would be of very little, if any, 
value to the author ; for most lectures are prepared for 
public delivery. Both reason and the weight of judicial 
authority concur in the rule, that a public reading or oral 
delivery of a lecture is not to be regarded as in itself a 
relinquishment of title by the author, or as operating to 
divest him of his property in the manuscript. Where 
persons are admitted, as pupils or otherwise, to hear 
public lectures, it is upon the implied confidence and con- 
tract that they will not use any means to injure or take 
away the exclusive right of the lecturer in his own 
lectures. They may take notes for their own informa- 
tion, but may not publish them for profit." 

In the analagous case of playright, the qyestion of pub- 
lication has undergone much discussion by the courts, and 
their reasoning and opinions, applicable to lectures as 
well, sustain the doctrine just stated. An interesting and 
instructive history of this discussion wiU be found in 
Drone on Copyright.' 

' Drone Copyr. pp. 118, 119, 554-584; 3 Kent Com. pp. 378, 379; Bart- 
lett V. Crittenden, 4 McLean, 300; s. c. 5 Id., 83. 

» Pp. 554-584; and see Palmer v DaWitt, 47 N. Y., 532; Thompkins 
V. HaUeck, 133 Mass., 33; s. c. 43 Am. Rep., 480. 



96 TEADE-MAEKS. [ § 53. 

In England the sole privilege of publishing their lectures 
is secured to authors by statute,' which affords protection 
against piracy. But ' ' lectures delivered in any university 
or public school or college, or on any public foundation, 
or by any individual in virtue of or according to any gift, 
endovrment or foundation, ' ' are excepted from the opera- 
tion of this act. 

In the United States a remedy is given by statute for 
the unauthorized publication of a manuscript." 

For a violation of the author's right he may maintain 
an action at law ; and, in a proper case, a court of equity 
will interpose by injunction. ' 

The remedies are available in a state court; and a 
citizen or resident of the United States may obtain redress 
in a Federal court.* 

§ 53. Trade-marks. — Property in trade-marks is gen- 
erally and properly classed under the first general mode 
of acquiring title to personal property, that of original 
acquisition. 

A trade-mark has been well defined as "the name, 
symbol, figure, letter, form or device, adopted and used 
by a manufacturer, or merchant, in order to designate 
the goods that he manufactures, or sells, and distinguish 
them from those manufactured or sold by another ; to 
the end that they may be known in the market as his, 

' 5 & 6 "Will. rv. c. 65; Drone Copyr., p. 658; Groode. Pers. Prop., pp. 
317, 218. 

' U. S. Eev. St. (3 Ed.), § 4967; Drone Copyr., pp. 124-127. 

' U. S. Rev. St. (2 Ed.), § 4967; Drone Copyr., p. 124: Boucicault v. 
Hart, 13 Blatchf., 47. 

* Drone Copyr., pp. 545, 546; Palmer v. DeWitt, 47 N. Y., 533. 



§ 64.] A COMMON LAW EIGHT. 97 

and thus enable him to secure such profits as result from 
a reputation for superior skill, industry or enterprise. ' ' ' 
§ 54. A common law right. — A trade-mark is the 
creature of common law, and not like the subjects of 
patents and copyright, dependent upon statute for exist- 
ence or protection. The two species of property, espe- 
cially trade-marks and copyright, are sometimes con- 
founded; but, while having some features in common, 
they are essentially different in character. Copyright 
property, as we have seen,' is the exclusive right of mul- 
tiplying and vending copies of original productions of the 
niind, and "is a property in the thing itself, the words, 
letters, designs or symbols, which are the signs of things, 
and the forms and embodiment of thdught." While 
trade-marks are property, "not in the words, letters, 
designs and symbols, as things, as signs of thought, as. 
productions of the mind; but simply and solely as a 
meafis of designating thvngs ; the things thus designated 
being the productions of human skill, or industry, 
whether of the mind or the hand, or a combination of 
both.'" 

' Upton, Trade-marks, p. 9; and see 3 Bouv. L. Diet., "trade- 
marks;" Newman V, Alvord, 61 N. Y., 139; Hostetter v. Adams, 30 
Blatch. C. C, 336; Lawrence Manuf. Co. v. Lowell Hosiery iVlills, 139 
Mass., 335; s. c. 37 Am. Rep., 363; Hier v. Abraham, 83 N. Y., 519; 
Thornton v. Crowley, 47 N. Y. Super. Ct. (15 J. & S), 537; Am. Solid 
Leather Button Co. v. Anthony Cowell Co., 3 New Engl. Rep., 630; 
Ferguson V. Davol Mills, 7 Phila., 353; s. c 3 Brewst., 314; Board- 
man V. Meriden Brittania Co., 35 Conn., 403, 

' Supra, § 47. 

' Upton, Trade-marks, pp. 14, 15; Dr. Jaeger's Sanitary Woolen 
System Co. v. Le B'outillier, 47 Hun, 531; Skinner v. Oakes, 10 Mo. 
App., 45; Atlantic Milling Co. v. Robinson, 30 Fed. Rep., 317; Shaver 
V. Shaver, 54 Iowa, 308; s. c. 37 Am. Rep., 194 
7 



98 WHAT MAY CONSTITUTE A TEADE-MAEK. [ § 55. 

A very stringent and carefully drawn statute on the 
subject of trade-marks, was passed by Congress in 1870, 
and amended in 1876.' But this law was held to be 
unconstitutional by the Federal courts." The provision of 
the United States Constitution for securing ' ' to authors 
and inventors the exclusive right to their respective 
writings and discoveries," on which the law of patents 
and copyright is based, does not apply to trade-marks.' 

There are also provisions in the laws of Congress look- 
ing to the protection of domestic manufacturers from the 
copying, or simulation, of their names or trade-mark on 
imported merchandise.* 

§ 55. What may constitute a trade-mark. — By the 

definition svpra,'' a trade-mark may consist of a name, 
symbol, figure, letter, form or device. But it should be 
noticed that a name or word which expresses only the 
quality, kind, texture, composition, or utility of an arti- 
cle, win not be protected as a trade-mark. The use of 
such names and words is common, and equally free to aU; 
and no one person, therefore, can monopolize their exclu- 
sive use for his own benefit.* 

' U. S. Rev. St. (3 Ed.), §§ 4937-4947. 

' Leidersdorf v. Flint, 8 Biss., C. C, 327; afBrmed on appeal to the 
U. S. Supreme Court. 

« United States v. Steflfens, 100 U. S., 82; and see United States v. 
Roche, 1 McCrary, C. C, 385. 

* U. S. Rev. St. (2 Ed.), § 2496; U. S. St. 1882-83, § 2496; U. S. St. 
1889-90, § 7. 

'§53. 

« Corwin v. Daly, 7 Bosw., 223 ; Wolfe v. Goulard, 18 How. Pr., 64; 
Fetridge V. Wells, 13 Id., 385 , Evans v. VonLaer, 83 Fed. Rep. 153 ; 
Colgau V. Danheiser, 35 Id. , 150; Runneford Chemical Works v. Muth, 
Id., 5'.'4; Smith v. Walker, 57 Mich., 456; Hornbottle v.- Kinney, 53N. 



§ 56. J BY WHOM ACQUIEED. 99 

. The same rule applies to marks, symbols, letters, and 
figures, which are used only to denote the quality, grade, 
appropriate name, or the peculiar mode or process of man- 
ufacture of the article to which they are applied.' 

But it has been held that marks, such as arbitrary com- 
binations of figures, indicating style or quality, which 
also indicate origin, may be the subject of a trade- 
mark.' 

§ 66. By whom acquired Trade-marks are a species 

of personal property;" and may be acquired by any per- 
son capable of acquiring and possessing other kinds of 
personal property, an alien as well as a citizen.* But the 
exclusive right can exist only in a person who, in some 
form, and to some extent, possesses an exclusive right in 
the property to which it is appended. It is not an 
abstract right to the exclusive use of a certain mark, 
dissociated from the article or property which its use is to 

Y., Super. Ct. 41; Hostetter v. Adams, 20 Blatchf. C. C, 326; Fleisch- 
erman v. Newman, 16 N. Y. State Rep., 794. 

' Royal Baking Powder Co. v. Sherrell, 93 N. Y., 331; Amoskeag 
Manuf Co. v. Trainer, 101 U. S., 51; Same v. Spear, 2 Sandf. Super. 
Ct.,599. 

' Am. Solid Leather Button Co. v. Anthony Crowell & Co., 2 New 
Eng. Rep., 680; Boardman v. Meriden Britannia Co., 35 Conn., 403; 
Lawrence Co. v. Lowell Mills, 139 Mass., 325; Gillott v. Esterbrook, 
48N. Y.,374. 

' Bradley v. Norton, 33 Conn., 157; Huwer v. Dannenhoflet, 83 N. 
Y., 499, 502; The Leather Cloth Co. v. The Am. Leather Cloth Co. De- 
Gex, J. & S., 137; s. c. 11 House of L'ds. Cas., 533; The Glen & Hale 
Manuf. Co. v. Hall, 61 N, Y., 326. 

* Taylor v. Carpenter, 3 Story, 458; The Collins Co. v. Brown, 3 Kay 
& J , 433; Same V. Cowen, Id., 428; Coats v. Holbrook, 3 Sandf., Ch. 
586; Cofleen v. Brunton, 4 McLean, 516. 



100 FEEEDOM FEOM FEAUD. [ § ^7. 

designate, and distinguish from other articles of the same 
general character.' 

The question has been under judicial consideration, 
whether a drawing or picture of an article may be used 
as a trade-mark. It would not be safe to affirm that this 
question has been definitively settled. The courts, of this 
country, so far as they have spoken on this point, and 
the English courts, do not seem to be in accord ; the for- 
mer inclining to the affirmative," and the latter to the 
negative, of the question.- 

§ 57. Freedom from fraud. — The right of a party to 
a trade-mark will not be recognized by tlie courts where 
he is guilty of fraud or deception in its acqusition or use. 
Courts of equity exercise jurisdiction in trade-mark cases 
for a two-fold purpose : First, to stimulate and reward 
skill and honesty in trade and manufactures ; and, sec- 
ondly, to protect the public against fraud and imposition 
by unscrupulous dealers, who seek to pass off spurious 
and inferior commodities for the genuine. Hence the 
just and wise rule that, no person can establish an exclu- 
sive right to a trade-mark acquired dishonestly, or used 
for fraudulent purposes. * 

' Atlantic Milling Co. v. Robinson, 30 Fed. Rep , 317; Skinner v. 
Oakes, 10 Mo. App., 45; Ferguson v. Davol Mills, 7 Phila., 353; s. c. 2 
Brewst, 214; Congress & Empire Spring Co. t. High Rock Congress 
Spring Co., 45 N. Y., 291; Cotton v. Gillard, 44 L. J. (N. S.) Ch., 90; 
Samuel v. Berger, 4 Abb. Pr. Rep. , 8. 

» In re Pratt, 10 U. S. Pat Gaz., 866; Tucker Manuf. Co. v. Boying- 
ton, 9 Id., 455; Ex parte Halliday, 16 Id., 506 ; Exparte Smith, Id., 
179. And see Popham v. Cole, 66 N. Y., 69. 

» James v. Parry, 55 L. T. Rep., N. S., 415; s. c. 35, Albany L. J., 13. 

« Fetridge v. Wells, 13 How. Pr. Rep., 385 ; Pai-tridge v. Menck, 
How. App. Gas , 547; Perry v. Truefltt, 6 Beav., 66; Fowle v. Spear, 



§ 58. J HOW ACQTJIKED. 101 

, § 58. How acquired. — Property in a trade-mark is 
primarily acquired by adoption and use by the manufac- 
turer, or other person possessed of an exclusive right in 
the thing to which it is applied.' No duration of time as 
to the use is requisite to create the property right.' 

To give an exclusive right, the use of the trade-mark 
by the person adopting and claiming it must be new, 
having never previously been used in appliance to a like 
article. ' 

Property in a trade-mark may, also, be acquired by a 
voluntary transfer from the person whose title originated 
ia adoption and use.* But, as we have seen supra," the 
abstract trade-mark is not assignable when disconnected 
with the thing designated by it; the right either to 
manufacture or sell the merchandise to which the mark 

7 Penn. L. J., 176; Hobbs v. Francis, 19 How. Pr. Eep., 567; Siegert 
V. Abbott, 61 Md., 376; s. c. 48 Am. Rep. 101; Bucklandv. Eioe, 40 
Ohio St., 536; Manhattan Medicine Co. v. Wood, 108 U. S., 318; Lan- 
dreth v. Landreth, 33 Fsd. Rep., 41; DeKuyper v. Witteman, 33 Id., 
871. 

' Upton Trade-marks, pp. 46, 47; Derringer v. Plate, 39 Cal., 393; 
FUley V. Fassett, 44 Mo., 168; Candee v. Deere, 54 El., 439; Bradbury 
V. Beeton, 39 Law J. Rep. Ch. (N. S.), 57. 

5 HaU V. Barrows, 8L. T. (N. S.), 337; s. c. on appeal, 9L. T. (N. S.), 
561; Brown Trade-marks, § 353. 

3 VanBeU V. Prescott, 83 N. Y., 630; Derringer" v. Plate, 39 Cal., 
393; Upton Trade-marks, pp. 46,, 47. 

* Hoxie V. Chaney, 143 Mass , 593; s. c. 58 Am. Rep., 149; Morgan 
V. Rogers, 19 Fed. Rep., 596; Hegeman&Co. v. Hegeman, 8 Daly, 1; 
Matter of Swezy, 63 How., 315; Walton v. Crowley, 3 Blatchf. C. C, 
440; The Leather Cloth Qo. v. The j4^m. Leather Cloth Co., Pe Gex, 
J. & S., 137; 8. c. 11 House of L'ds Cases, 533; The Glen & Hali 
Manuf. Co. v. Hall, 61 N. Y., 336, 330; Huwer v. Dennenhoffer, 8a 
Id., 499, 503. 

Ȥ56. 



102 INFEINGEMENT. [ § 59. 

has been applied must go with it, or no title wijl vest in 
the assignee; the original proprietor can transfer no 
greater right than that possessed by himself, which is, 
simply, the exclusive right to use the mark to designate, 
and distinguish from articles of the same general char- 
acter, the merchandise which he manufactures or sells. ' 

So, also, property in a trade-mark wiU pass by opera- 
tion of law. On the decease, or bankruptcy, of the 
proprietor of a trade-mark, the property in it passes to 
the party lawfully succeeding to the control of the busi- 
ness in which the mark was- used." 

§ 59. Infringement. — The violation of a trade-mark 
consists in the unauthorized application of it, or of a 
colorable imitation of it, to the goods manufactured or 
sold by the wrong-doer, under the fraudulent representa- 
tion that they are the genuine merchandise of the pro- 
prietor; whereby purchasers and consumers may be 
deceived, and the owner of the trade-mark damnified.' 

From the' definition of an infringement, and the 
authorities cited, it will appear that a colorable imitation 
calculated to deceive the purchaser without a close inspec- 
tion, will constitute a violation of the proprietor's right, 

' Samuel v. Burger, 4 Abb. Pr. Bep., 88; Atlantic Milling Co. v. 
Robinson, 20 Fed. Rep., 317. 

' Huwer v. DannenhofEer, 83 N. Y., 499, 503; Matter of Swezy, 63 
How. , 315; Croft v. Day, 7 Beav. , 84; Upton Trade-marks, p. 80, et seq. 

* Newman v Alvord, 49 Barb., 588; Enoch Morgan Sons' Co. v. 
Sohwackhoefer, 55. How. Pr. R., 37; s. c. 5 Abb. N. C, 365; N. Y. 
Cab. Co. V. Mooney, 15 Abb. N. C, 153; Farmers' Loan & Trust Co. 
V. Farmers' Loan & Trust Co. of Kansas, 31 Id., 104; Godillott v. 
Harris, 81 N. Y., 363; Robertson v. Berry, 50 Md., 591. 



§ 60. j EBMEDIES FOB INFEINGEMENT. 103 

and entitle him to legal _ and equitable relief. ' But this 
rule does not include a case in which the simulation 
would not deceive a person of ordinary prudence ; the 
maxim in such case applying, ' ' Yigilomtibus non dormi- 
entibus leges suhvenumt. ' ' ' 

§ 60. Remedies for infringement. — For a violation of 
trade-mark property the courts of law, and of equity, are 
both open to the injured party for redress. In the 
former, he may have an action for damages ; in the 
latter, a suit for an injunction, and a decree for pecuniary 
satisfaction. The extraordinary restraining power by 
injunction belongs to a court of equity ; an action pri- 
marily for damages, to a court of law. By a familiar 
rule, however, when a court of equity obtains jurisdiction 
of a matter for any purpose, it will exercise its powers 
for all purposes connected therewith, and grant full 
relief to injured parties. Under this rule, in a suit pray- 
ing for an injunction a court of equity obtains jurisdic- 
tion of the case, and, having full control and power, will 
decree damages when such redress is demanded by justice 
and equity. The court has power also in such case to 
compel the defendant to render a full and true account, 
under oath, of aU sales by him of merchandise bearing 

' Vacuum Oil Co. v. Buffalo Lubricating Oil Co., 36 Weekly Dig., 
570; New Haven Pat. Rolling Spring Co. v. Farren, 51 Conn., 324; 
Eobertson v. Berry, 50 Md , 591. 

» Popham V. Cole, 66 N. Y., 69; Partridge v. Menck, 2 Sandf. Ch., 
633; s. c. on appeal, 1 How. App. Cas., 548; CoUaday v. Baird, 4 
Phila., 139; Woolam v. Eatclifl, 1 Hem. & M., 259. 



104 EEMEDIES FOE INFRINGEMENT. [ § 60. 

the pirated trade-mark, thus facilitating the administra- 
tion of justice between the parties.' 

' Upton Trade-marks, pp. 333, 834; Knott v. Morgan, 3 Keen, 313; 
Millingtonv Fox, 3 Mylne & C, 838; Taylor v. Carpenter, 3 Sandf., 
Ch., 611, 613; Bell V Locke, 8 Paige, 375; Thompson v. "Winchester, 
19 Pick., 314: Jurgenson v. Alexander, 34 How. Pr Re.,, 369; Stone- 
breaker V Stonebreaker, 33 Md., 353; Shaver v. Shaver, 54 Iowa, 308; 
B. c. 37 Am. Bep , 194- Singer Manuf. Co. v. EimbaU, 10 Scottish 
L. K., 173. 



§§ 61, 62.J FOKFEITUKE. 105 



CHAPTEE VIII. 

THE SECOND GENERAL MODE OP ACQUIRING TITLE TO 

PERSONAL PROPERTY.— TRANSFER BY 

ACT OF LAW. 

Sbcstions 61. Special modes included in this division. 
6a-65. Forfeiture. 

66-67. Succession. ' 

68-69. Judgments. 

70. Intestacy. 
71-74. Insolvency. 
75-77. Marriage. 

§ 61. The special modes included Transfer of title 

to personal property by act of law embraces : I. forfeit- 
ure; II. Succession; III. Judgment; TV. Intestacy; 
Y. Insolvency; and YI. Marriage. 

I. Forfeiture. 

§ 63. Definition and examples — Forfeiture is a loss 
of title to his goods and chattels by the owner, as a pun- 
ishment for crime, a penalty for the violation of law, or 
a breach of contract, and a transfer thereof to the gov- 
ernment, or other corporation,. or to a private person as 
the case may be. ' 

As examples, may be mentioned forfeiture of aU the 
goods and chattels of the offender for treason, and other 
high crimes ; forfeiture of goods for evasion of the reve- 

' 3 Kent Com., p. 385; 1 Black. Com. (Cooley's Ed.), p. 398; 3 Id., 
p. 408 et seq., 420, 431; 4 Id., pp. 3«3, 387j 1 Bouv. L. Diet., "for- 
feiture;" And. L. Diet., "forfeiture." 



106 FOEFEITUEE. [ § 63. 

nue laws, or other statutes, State or national ; forfeiture 
under the police power of the state for the illegal use of 
property ; and forfeiture of the shares of a stockholder in 
a corporation for a failure to pay assessments when due. ' 

§ 63. England, and United States. — Anciently in 
England there were numerous statutory forfeitures for 
crime ; but modern legislation has largely reduced the 
number, and greatly softened the rigor of the ancient 
law. 

In the United States, forfeiture for crime is of rare 
occurrence. Legislation, both national and State, is gen- 
erally in harmony with the spirit of the Federal Consti- 
tution, which provides that ' ' no attainder of treason 
shall work corruption of blood, or forfeiture, except 
during the life of the person attainted. ' ' ' By act of Con- 
gress it is provided that, ' ' no conviction or judgment 
shall work corruption of blood, or any forfeiture of 
estate. ' ' ' 

In most, if not all, of the States of the Union forfeiture 
is regulated by organic or statutory law, or both. In 
the absence of such regulation, forfeiture of property for 
treason and felony still exists, it being part of the com- 
mon law inherited from England.' 

' Citations supra; and Chit. Cr. L,. pp. 730-735; 1 Bishop Cr. L., g§ 
944, 824, 835; Weeks v. SUver Islet, etc., Co., 55 N. Y. Super. Ct., (J. 
& S.) 1, 16; Pendergast v. Turton, 1 Young & Coll., (N. R.) 98; Story 
Eq Jur., § 1335; Cathcart v. Fire Department, etc., 26 N. Y., 529. 

' U. S. Const., Art. 3, Sec. 3. 

» U. S. Rev. St. (2 Ed.), § 5326. 

* 3 Kent Com , p. 386. 



§§ 64-66.] SUCCESSION. 107 

§ 64. When title passes. — As a general rule, the 
incurrence of the forfeiture does not ipso facto transfer 
the forfeited property to the state, or the party to whom 
it goes ; but a final judgment of a court of competent 
jurisdiction is requisite to pass the title.' 

But the forfeiture, when decreed, relates back to the 
time when it was incurred." 

§ 65. Forfeiture odious. — ^In the administration of 
statutory law, it is important to observe the distinction 
between things odious and things favored, as affecting 
the rule of construction applicable to each. Statutes 
creating the former are subject to strict construction, 
while the latter kind are construed liberally. Forfeitures 
and penalties belong to the odious class, and fall under 
the rule of strict construction. ° The rule of construction 
applicable may be decisive of a case. 

II. Succession. 

§ 66. Definition, and kinds Defined in a general 

way, succession is the transfer~of title or rights from one 
person, or set of persons to another, either by act of the 
parties or by operation of law, whereby the latter becomes 

• 1 Bishop Cr. L., § 967; Fire Depaxtment of New York v. Kip, 10 
"Wend., 366; Bang v. Earbury, Fort., 37; "Wells v. Martine, 3 Bay, 20; 
Skinner v. Perot, 1 Ashm., 57. 

' Bulkly V. Orms, Brayt. (Vt.), 124; Clark v. Protection Ina. Co., 1 
Story, 109; The ifears, 8 Cranch, 417; United States v. Seventy-six 
Thousand One Hundred and Twenty-Five Cigars, 18 Fed. Eep., 147. 

' Bishop Cont. (Enl. Ed.), § 417; Bishop Written Laws, § 193 et seq. ; 
Taylor v. Patterson, 9 La. An., 351; Smith v. Spooner, 3 Pick., 329; 
Sewal V. Jones, 9 Id., 412; SuUivan v. Park, 33 Me., 438; The State 
V. Stevenson, 2 Baily, 334, 335; United States v. Burdett, 9 Pet., 68^. 



108 SUCCESSION. [ § 67. 

the successor of the former in respect of sucli title or 
rights. 

There are several kinds or modes of succession by 
operation of law, without the act of the parties, classified 
as follows : first, the succession to the government of the 
personal and real estate of an intestate, when he has no 
heirs, or next of kin to claim it ; second, what is some- 
times called legal succession, which governs the distribu- 
tion of decedent estates, and which is treated, post, under 
the head of Intestacy;' and, third, common law succes- 
sion, "the mode by which one set of persons, members 
of a corporation aggregate, acquire the rights of another 
set which preceded them. ' ' ' 

Testamentary succession is sometimes erroneously 
classed with succession by act of law, instead of by act 
of the parties, to which class it belongs, as the devisee 
and legatee takes title direct from the testator. This 
kind of succession is discussed post* under the head, 
' ' Title by wUl or testament. ' ' 

The third kind only, that of common law succession, 
will be considered in this connection. 

§ 67. Common-law succession. — This mode of acquir- 
ing title relates mainly to corporations aggregate, which 
were treated supra.'' According to Blackstone, the acqui- 
sition of property m chattels hj succession "is, in strict- 

'§70. 

' Bouv. Law Diet., "succession;" 3 Kent Com., p. 387; 2 Blacks. 
Com., pp. 430, 431 ; 1 Id., pp. 468, 469, 475 ; And. L. Diet., " succes- 
sion." 

• § 90, etc. 

<§80. 



§ 67. J SUCCESSION. 109' 

ness of law, only applicable to corporations aggr^ate,^^ 
' ' in which one set of men may, by succeeding another 
set, acquire a property in all the goods, movables, 
and other chattels of the corporation."' But, as we 
have seen, the term ' ' succession ' ' may have a broader 
scope. 

Chief Justice Marshall, in the celebrated Dartmouth 
College case," speaking of the properties of corporations 
aggregate, says : ' ' They enable a corporation to manage 
its own affairs, and to hold property without the per- 
plexing intricacies, the hazardous and endless necessity of 
perpetual conveyances for the purpose of transmitting it 
from hand to hand. It is chiefly for the purpose of 
clothing bodies of men in succession, with these qualities 
and capacities, that corporations were invented, and are 
in use. By these means a perpetual succession of indi- 
viduals is capable of acting for the promotion of the par- 
ticular object, like one immortal being. ' ' 

In sole corporations a distinction is made in respect of 
succession. When a sole corporation is the representa- 
tive of a number of persons, it has the same capacity as 
a corporation aggregate to take chattels in succession ; 
but in case of sole corporation which represent only one 
person, chattel interests do not pass in succession.' 

Sole corporations proper are rare in the United States, 
but there are quasi corporations possessing some of the 

« 3 Black. Com., pp. 430, 431. 

' Dartmouth College v. Woodward, 4 Wheat., 636. And see 1 
Black. Com., pp. 469, 470, 471, 475; 2 Kent Com., p. 373; 1 Potter 
Corp., §§3, 3,4. 

» 2 Black. Com., pp. 431, 433; Kent Com., pp. 373, 374; 1 Potter 
Corp., §18.^ 



110 JUDGMENT, [ §§ 68, 69. 

properties, and subserving some of the purposes, of sole 
corporations.' 

III. Judgment. 

§ 68. Beflnition. — A judgment is the conclusion of 
law, upon the facts of a case judicially ascertained, pro- 
nounced by a competent tribunal having jurisdiction in 
the premises, in a matter regularly before it for adjudi- 
catipn. 

Judgments in actions ex coni/ractu are classed with con- 
tracts of record by some text- writers and courts;" but 
other authorities dissent, holding that no judgment has 
the essential elements of a contract;' and the weight of 
authority seems to be on this side of the question. 

But, whatever may be the rule respecting judgments 
in actions ex contractu, there is no good reason for class- 
ing judgments ex delicto with contracts;* and it is with 
these mainly, that we are concerned in this connection. 

§ 69. Judgments which transfer title. — In actions 
of trover, or of de hpnis asportatis, if the plaintiff 
recovers judgment, and obtains satisfaction, the title to 

' 1 Potter Corp., § 18, and cases cited; Boone Corp., § 6, and.cases 
cited. 

' 1 Pars. Cont. (7 Ed.), p. 8; Mete. Cent., p. 4; Anson Cont., pp. 8, 
37, 38; Wald's Pollock Cont., pp. 145, 146; Morse v. Tappan, 8 Gray, 
411; Gebhardv. Garnier, 13 Bush., 821; Stuart v. Landers, 16 Cal,, 
373. 

3 Bishop Cont. (Enl. Ed.), § 141; O'Brien v. Young, 95 N. Y., 438; 
Louisiana v. Mayor, 109 U S., 285; Rae v. Hulbert, 17 lU.. 572, 580; 
Burnes V. Simpson, 9 Kan., 658; Larrabee v. Baldwin, 85 Cal., 155, 
168- McConn v. The N. Y. C. and H. R. R. Co., 50 N. Y., 176; Biddle- 
son V. Whytel, 8 Burrows, 1545-1548. 

' Bishop Cont. (Enl. Ed.), § 141. 



§ 69. J JUDGMENT. Ill 

the property in question is transferred to the defendant ; 
the damages recovered being regarded as the price of the 
chattel so transferred by operation of law. ' 

It is a mooted question whether the recovery of judg- 
ment alone, without satisfaction, will transfer the title 
to the property in question to the defendant. There 
are cases, English and American, holding the affirmative 
of the question on, at least, plausible grounds;" on the 
other hand, there are numerous cases holding the nega- 
tive, the judgment being regarded as a security merely, 
leaving the title to the property in the plaintiff untU pay- 
ment of the price represented by the judgment.' 

It seems but reasonable and just that the owner should 
not lose title to his chattel against his wiU, by the tor- 
tious act of another, without receiving compensation for 
it ; and equally reasonable and just that the wrong-doer 
should not profit by his tort without first paying the 
judgment price. 

There are some other cases, generally assigned to this 
mode of acquiring title to personal property, of which 
notice should be taken. They differ somewhat from the 

' 3 Kent Com., pp. 387, 388; 2 Black. Com,, pp. 437, 438; Bishop 
Non-Cont. Law, § 399. 

' Brown v. Wootton, Cro. Jac, 73; Adams v. Broughton, Strange, 
1078; Rogers v. Moore, 1 Rice, 60; White v. Philbriok, 5 Greenl., 147; 
Carlile v. Burley, 3 Id., 250; Floyd v.^Browne, 1 Rawle, 135; Marsh 
V. Pier, 4 Id., 273; Hunt v. Bates, 7 R. I., 217. 

' Curtis V. G-roat, 6 Johns., 168; Osterhout v. Roberts, 8 Cow., 43; 
Sanderson v. Caldwell, 3 Aiken, 195; Elliott v. Porter, 5 Dana, 399; 
Campbell v. Phelps, 1 Pick., 62; Sharp v. Gray, 5 B. Monr., 4; Hep- 
bum V. SeweU, 5 Har. and J,, 311 ; Spivey v. Morris, 18 Ala., 354; 
Drake v. Mitchell, 3 East, 258; Cooper v. Shepherd, 3 C. B., 266; Goff 
V. Craven, 34 Hun, 150; Thurst v. West, 31 N. Y., 215. 



112 INTESTACY. [ § 70, 

cases now considered, and do not in all respects strictly 
fall within the same doctrine, yet for all practical pur- 
poses they may properly be placed in the same category. 

1. Oases of penalties, given by statute, which may be 
recovered by any party who will sue for the same ; and 
qui tam, actions, in which an informer may sue for the 
penalty in his own name, as weU on behalf of himself as 
the state. In this class of cases no particular person has 
any right in, or claim upon, the penal sum before action 
brought ; and he who first brings the action and obtains 
judgment, acquires title to it. ' 

2. Damages awarded to a man as a compensation for 
an injury sustained ; as for a battery, for false imprison- 
ment, for slander or trespass, and, generally, for injuries 
resulting from torts, for which the damages recoverable 
are uncertain. In this class of cases, the damages, when 
fixed by judgment, become the property of the plaintiff, 
transferred to him from the defendant by operation of 
law.' 

IV. Intestacy. 

§ 70. Definition, history, and incidents Intestacy 

is the state or condition of a . person dying without leav- 
ing a valid will.' Applied to the subject in hand, it 
signifies the state of one dying and leaving testable per- 
sonal property undisposed of by will. 

The intestate's title to his property dies with him ; and 
where the title rests intermediate his death and the 

' 2 Black. Com., p. 437; Bishop Written Laws, § 250 d. 

'2 Black. Com., p. 488. 

• Bouv. L. Diet., " intestacy;" 3 Black.. Com., p. 494. 



§ 70. J INTESTAOY. 113 

appointment of an administrator, is a question which has 
caused some confusion of thought. It does not vest in 
his heirs at law for they take only decedent's real estate ; 
it does not pass directly to the next of kin, for they take 
no legal title to his personal property ; neither their title 
nor that of any other person can accrue in other mode 
than through the medium of an administrator. ' 

A brief historical sketch of the law of intestacy will 
relieve the question from difficulty. "We have seen ' that 
occupancy is the first known method of acquiring title to 
personal property; that the right of property in external 
things in the aggregate belongs to the human race col- 
lectively ; that he who first appropriated a thing to his 
own use acquired a property therein, and an exclusive 
right thereto, which property and right continued so long 
as the exclusive use or occupancy continued, and no 
longer. That when possession was abandoned the right 
was lost, and any other person might appropriate the 
thing to his own use, with the like right and limitation ; 
and so on in succession indefinitely. The abandonment 
of the thing by the possessor relegated it to the common 
stock belonging to mankind as a whole. In other words, 
the abandoned thing became a part of the unappropriated 
body of property known as iona vacantia • and the death 
of the possessor was regarded as an abandonment having 
this effect. 
. Eef erring especially to England, in the progress "of 

' Ferrie v. The Public Administrator, 3 Bradf. Surr, Eep., 249, 262; 
Beattie V. Abercrombie, 18 Ala. 9; Sneed v. Hooper, Cooke (Tenn.), 
200; Beecher v. Buckingham, 18 Coim., 110; State v. Moore, 18 Mo. 
App., 406; Palmer v. Palmer, 55 Mich., 293. 

» Supra, § 33. 
8 



114: mXESTACT. [§,'''0- 

events lona vacantia became the property of the king. 
He seized upon such goods as parens ^atricB and general 
trustee of the kingdom. 

Ori^nally the king exercised this prerogative by his 
own ministers of justice ; but later it was granted as a 
franchise to many of his lords of manors, and others who 
thereunder acquired a right to grant administration to 
their intestate tenants and suitors in their own courts 
baron, and other courts. 

Subsequently the crown granted this right to the 
popish clergy. The ordinary — i. e. one who had ordi- 
nary or immediate jurisdiction in matters ecclesiastical, 
an ecclesiastical judge — might seize and keep the goods 
of an intestate, keep them without wasting, give, alien, 

or sell them at wiU, and dispose of the proceeds m 
pios usus. 

But the clerical garb was not proof against tempta- 
tion, and after a while the clergy came to the pious con- 
clusion that they were the rightful beneficiaries, and 
appropriated to themselves most of the estates thus left 
them in trust, without even paying the debts of the 
deceased. 

Finally, Parliament interposed and placed administra- 
tion in the hands of the ' ' nearest and most lawful friends 
of the deceased ; ' ' and by a subsequent act, it was granted 
either to the widow, or next of kin, or both." But the 
ordinary still had jurisdiction in the administration of 
estates, and granted letters, the administrators being 
regarded as his olficers. 

• Statutes, 31 Edw. Ill, c. 11; and 21 Hen VIII, c. 5. 



§ 70. j IKTESTAOT. 115 

This is the origin, and history in brief, of administra-, 
tion in England. It will be seen that the administration 
of the property of an intestate is based upon the doc- 
trine that his death was an abandonment of title, and 
that his personalty thereupon became tona vacantia, 
passing to the sovereign as the pa/rens patrice, or general 
trustee of the realm. The legal title vests in the crown ; 
the equitable title in decedent's creditors and next of kin. 

The same doctrine prevails in the American States, 
substituting ' ' government ' ' for ' ' king " or " crown, ' ' 
and, as a necessary sequence, intermediate the death of 
intestate and the issuance of letters of administration, 
the legal title to his personal property vests in the gov- 
ernment in trust.' 

There are cases, however, holding that after the death 
of the intestate his personal property may be considered 
in abeyance till administration granted, and is then 
vested in the administrator by relation to the time of 
decedent's death." But to this view there are several 
objections. First, it is historically illogical; secondly, 
it is in conflict with the axiomatic principle that in the 
matter of title to property the law abhors a vacuum, that 
the title must be somewhere ; and, thirdly, it leaves the 
personal effects of intestate without lawful custody and 

> 2 Black. Com., pp. 3, 11, 359, 401, 494-498; Pom. Munic. L., § 787; 
AspinwaU V. The King's Proctor, Curt. Ecc, 346; Hensloe's Case, 9 
Rep., 37, 38; Public Administrator v. Hughes, 1 Bradf. Surr Eep., 
135, 138, 139; Ferrie v. The Public Administrator, 3 Id., 349, 363, 363. 

» Jewett V. Smith, 13 Mass., 309; Clapp v. Stoughton, 10 Pick., 463; 
Lawrence v. "Wright, 33 Id., 138 ; Brackett v. Hoitt, 30 N. H., 357; 
McVaughters v. Elder, 3 Brev. (S. C), 307; Miller v. Reigne, 3 Hill 
<8. C), 593. 



116 ' INTESTACY. [ § 70, 

protection until the grant of administration, which ia 
often delayed for a considerable length of time. True, 
on the appointment of an administrator, the legal title 
passes to him by operation of law, and relates back to 
the death of the intestate for the purposes of securing 
the estate, and protecting persons dealing with parties^ 
entitled to administration, who are afterwards appointed 
and assume such administration. The administrator may 
maintain an action for an unredressed tortious injury to, 
or conversion of, the property of the estate prior to his 
appointment;' yet the want of present adequate protec- 
tion intermediate his appointment and the death of the 
intestate, might result in irreparable injury to the estate. 

While the legal title to the intestate's personal prop- 
erty is in the administrator as trustee, so that for the 
purposes of administration he may sell the same and give , 
a good title to the purchaser, the next of kin have a 
vested interest in the surplus of the estate, after the pay- 
ment of the debts.' 

The appoiatment, powers, and duties of an adminis- 
trator, and the distribution of intestate's personal prop- 
erty, are generally regulated by statute ; and the rules of 
the common law are more or less modified in most, if not 
all, of the American States. 

• Citations supra, and Dayt. Surr., p. S34; Valentine v. Jackson, 9 
Wend., 302; Babcook v. Booth, 2 Hill, 181; Vroom v. Van Home, 10 
Paige, 549. 

' Ferrie v. The Public Administrator, 3 Bradf. Surr. Rept., 249, 
262; Pom. Munic. L., § 798. 



§§ 71, 72. J msoLVENOT. 117 

V. InsoVoency. 

§ 71. Meaning of the terms insolvency, and bank- 
ruptcy. — This mode of acquiring title to personal prop- 
erty embraces bankruptcy, which, is included in the 
generic term insolvency. 

"Writers do not agree in respect to the derivation of 
the word bankruptcy. The weight of authority favors 
the view that it is derived from the words haneus, which 
means the table or counter of a tradesman, and rv^ptus, 
broken, signifying the broken bench or counter, and 
denoting one whose shop or place is broken or gone. 
This view is rendered probable from the custom said to 
have once existed among the bankers of Italy, who car- 
ried on the business in public places, seated on forms, 
with benches on which to count their cash ; and when 
one became insolvent, his bench was broken, either as a 
mark of reproach, or to make room for another. ' 

The word insolvent means not solvent. In law it 
expresses the state of a person who is unable, for any 
cause, to pay his debts. Or, what is perhaps a better 
definition, the state of one who is unable to pay his 
debts as they fall due in the usual course of trade or 
business." 

§ 72. Distinction between bankrupt, and insolvent, 
laws. — Originally there were several points of difference 

•3 Black. Com., p. 473; Bouv. L. Diet., "bankruptcy;" 3 Pars. 
Cont. (7 Ed.), p. 433, n. (b); 1 Beaw. Lex Merc, 371. 

' Bouv. L. Diet., " insolvency;" Ferry v. The Bank of Central New- 
York, 15 How. Pr. Rep., 445, 451; Thompson v. Thompson, 4 Cush., 
134; Brower V. Harbeck, 9 N. Y., 589; Lee v. Kilburn, 3 Gray, 594; 
Hazleton v. Allen, 3 Allen, 114 



118 mSOLTENOT. C,§'i^3. 

between bankrupt and insolvent laws ; and such distinc- 
tions still exist where they are not modified or obliter- 
ated by statute. 

1. Bankrupt laws apply only to traders or merchants; 
while insolvent laws apply to all indiscriminately. 

2. Bankrupt laws discharge absolutely the obligation 
of the honest debtor ; while insolvent laws discharge only 
the person of the debtor, leaving his future acquisitions 
still liable for his debts. 

3. Formerly, while all persons owing debts could take 
the benefit of an insolvent law, none who were not 
traders, or quasi traders, could be forced into bankruptcy 
against their will, at the suit of others. 

But these distinctions are of very little practical 
importance at present, in this country, having been quite 
generally, to a large extent, obliterated by the legislation 
both of the Federal Government and the States. ' 

§ 73. General purposes, and eflfect, of insolvent 
laws. — We have seen that one of the limitations to the 
absolute ownership of personal property, is its liability 
for the satisfaction of aU his just debts, except in so far 
as it may be exempt by statute." 

The effect of insolvency is, in contemplation of law, 
to convert the insolvent's estate into a common fund for 
the payment of his debts ; and the proceedings in bank- 

' 3 Pars. Cont. (7 Ed.), pp. 430, 431; R. S. of U. S. (3 Ed.), § 5014 
Blanchard v. Eussell, 13 Mass., 1; Ogden v. Saunders, 12 Wheat., 213 
Sturges V. Crowninshield, 4 Id , 119; Sackett v. Andross, 5 Hill, 337 
Adams v. Storey, 1 Paine C. C, 79. 

» Supra § 5; and see 3 Pars. Cont. (7 Ed.), pp. 438, 429. 



§^ 74.] INSOLVENCY. 119 

ruptcy, or insolvency, constitute the legal machinery by 
which the estate is transferred to his creditors.' 

Under these proceedings the insolvent's property is 
transferred by operation of law to an assignee or trustee, 
who is clothed with authority to administer the same for 
the benefit of creditors. He seUs the property, or so 
much thereof as may be necessary for the purpose, and, 
after paying expenses of administration, distributes the 
residue among the creditors pro rata, if the fund be 
" insuflBoient to pay them in full. If there be a surplus 
after paying expenses and all the creditors in full, it is 
paid over to the insolvent or his legal representatives. 

The operation of thefee laws embraces two classes of 
debtors : 1. Dishonest debtors, who do not wish or 
rutend to pay their debts, in whose case the law inter- 
poses and does for them, and for the benefit of their 
creditors, what they ought to do voluntarily, but will 
not. 2. Honest debtors, who wish to pay their debts, 
but are unable to do so in fuU ; in this class of cases the 
law comes to the aid of both debtor and creditor, takes 
the property of the former for the benefit of the latter, 
and relieves the honest but unfortunate debtor from 

further obligation and embarrassment.' 

/ 

§ 74, United States bankrupt, and insolvent, laws 

Under the Federal Constitution Congress is authorized to 
establish ' ' uniform laws on the subject of bankruptcies 
throughout the United States."' In virtue of this 
authority, Congress has enacted three general laws on 

■ Sturges V. Crowninshield, 4 Wheat., 195. 

• 3 Pars. Cont., p. 431; 2 Black. Com., pp. 473, 474. 

» U. 8. Const., Art. I, § 8. 



120 msoLVENOT. [ § 74. 

the subject, all of which have been repealed, viz : 1. The 
act of April 4, 1800, repealed December 19, 1803; 2. 
The act of August 19, 1841, repealed March 3, 1843; 
and 3. The act of March 2, 1867, repealed June 7, 1878 ; 
aggregating less than eighteen years during the century 
of national life under the Federal Constitution. 

But the omission has been largely supplied by State 
insolvent laws. It is well settled that the States have 
the reserved power to enact insolvent laws, notwithstand- 
ing the authority vested in Congress by the United 
States Constitution ; and the laws passed on the subject, 
by Congress and the State legislatures, have, generally, 
each contained the distinctive features of both bankrupt 
and insolvent laws.' 

To the power of the States, however, there are certain 
limitations. 

1. The State bankrupt or insolvent law must not 
impair the obligation of a contract. 

2. It must not conflict with any existing act of Con- 
gress on the subject. 

3. The State cannot pass a law that shall act upon the 
rights of citizens 'of other States, who do not voluntarily 
become parties to proceedings under it affecting such 
rights." 

As to when statutes are in conflict it is held, that two 

• 2 Kent Com., p. 391; 3 Pars. Cont., pp. 435-446; Story's Com. on 
Const. U. 8., Vol. Ill, p. 11. 

' 2 Kent Com., p. 391, et seq.; Sturges v. Crovminshield, 4 Wheat., 
122; Gibbons v. Ogden, 9 Id., 197, 227, 235, 238; Houston v. Moore, 5 
Id., 34, 49, 52, 54; Ogden v. Saunders, 12 Id., 213; 3 Pars. Cont. (7 
Ed.), pp. 481-446. 



§ 76.J MAEEIAGE. 121 

having the same general object, and acting upon the 
same persons and the same cases, by different modes and 
in different jurisdictions, must be in conflict with each 
other. Though the modes by which the remedy is 
administered may vary, yet, where the bankrupt act and 
the State insolvent law have substantially the same scope 
and object, and act upon the same persons and cases, the 
State law is suspended.' 

The effect of a conflict is to suspend, not to abrogate, 
the State insolvent law. If the act of Congress which 
suspends a State law be repealed, the latter is therebj'^ 
revived and rendered operative.' 

VI. Marriage. 

§ 75. Transfer of chattels by mai*riage. — At com- 
mon law marriage vests the husband with title to the 
chattels of the wife, and with the same degree of prop- 
erty, and the same powers, as the wife when sole had in 
and over them. ' 

This effect of marriage is the logical outcome of the 
doctrine that husband and wife constitute a unit, of 
which the husband is the embodiment. By the common 
law the individuality, and being, even, of the wife is in 

' Martin v. Berry, 2 Bankr. Reg., 629; s. c, 37 Cal., 208; Van Nos- 
trand V. Carr, 30 Md., 128; Shears v. SoUinger, 10 Abb. Pr. Rep. (N. 
S ). 287; 3 Pars. Cont. (7 Ed.), p. 446 and notes. 

« Sturges V. Crowninshield, 4 Wheat., 123; 3 Pars. Cont. (7 Ed.), p. 
446. 

» 3 Black. Com., p. 433; 3 Kent Com., pp. 130, 134; Reeve Dom. 
Rel. (4 Ed.), p. 1, et seq.; Browne Dom. Rel., p. 2'i ; Bish. Mar. and 
Div., §§ 14, 15. 



122 MAEBIAGE. [ § 76. 

a degree suspended during coverture, or legally merged 
in that of her husband. ' 

The personal property of the wife in possession at the 
time of her marriage, in her own right, vests immediately 
and absolutely in her husband. He can dispose of it at 
will, and on his death it passes to his representatives." 

§ 76. As to the wife's choses in: action The hus- 
band has a qualified property in the choses in action 
belonging to his wife at the time of their marriage ; but 
to obtain an absolute title, and render them available to 
hind, he must reduce them to possession by some unequiv- 
ocal act signifying his claim of ownership. He may sue 
for and recover, or release and assign, them; and when 
recovered or assigned the avails, whether in specie or 
money, become absolutely his own property.' 

But, in case the husband dies without having reduced 
the chose m action to possession, it will belong to the 
wife in her own right without administering on his 
estate.* 

' ' 3 Black. Com., p. 433; 3 Kent Com., p. 139. 

» 2 Kent Com , p. 143 ; Hyde v. Stone, 9 Cow., 230 ; Harper v. Mc- 
Whorter, 18 Ala , 239; Mahoney v. Bland, 14 Ind., 176; Burgess v. 
Heape, 1 Hill (S. C), Ch. 397; Vaden v. Vaden, 1 Head (Tenn ), 444; 
Carleton v. Lovejoy, 54 Me., 445. 

' 2 Kent Com., p. 135 ; Reeve Dom. Eel. (4 Ed.), p. 2, and notes; 

Winslow V. Crocker, 17 Me., 29; Tryon v. Sutton, 13 Cal., 490; Fourth 

Ecclesiastical Soc. v. Mather, 15 Conn., 583; Young v. Ward., 21 111., 

333; Evans V. Secrest, 3 Ind., 545; Lowery v. Craig, 30 Miss., 19; 

. Tritt's Adm'rs v. Colwell's Adm'rs, 31 Penn., 232. 

* 2 Kent Com., p. 185; Eeeve Dom. Eel. (4 Ed.), p. 4, and n. 1; Legg 
V. Legg, 8 Mass., 99; Howes v. Bigelow, 13 Id., 384; Griswold v. 
Penniman, 2 Conn., 564; Searing v. Searing, 9 Paige, 283. 



§ 77.J > MAEEIAGB. 123 

On the other hand, in case of the wife's death before 
the husband has reduced her choses to possession, he, sur- 
viving her, is not vested with the absolute title in virtue 
of his marital rights ; but he may recover the same to 
his own use through letters of administration, to which 
the husband is generally entitled. ' 

§ 77. No unjust discrimination against the wife. — 

To relieve the common law from the unmerited reproach 
cast upon it by ardent reformers, on account of its alleged 
cruel discrimination against the wife, it should be noticed 
that the marital relation lays burdens upon the husband 
from which the wife is relieved. He becomes liable for 
the payment of her debts contracted before marriage; 
and this, even though she brings him no dower." He is 
obliged to maintain his wife, and provide her with neces- 
saries suitable to her situation and his condition in life ; 
and is liable for debts that she may contract for such 
things during cohabitation. ' 

He is also liable for her torts committed both before 
and after marriage.* 

Not merely does the law relieve the wife of burdens 
incident to humanity, and lay them upon her husband, 
but it carefully and tenderly provides protection for her 
rights, and security against injustice and oppression by 

• 2 Kent Com., p. 135; Reeve Dom. Eel. (4 Ed.), p. 18; Garforth v. 
Bradley, 2 Ves., 675; Richards v. Richards, 3 Barn, and Adol., 447 ; 
Barnes v. Underwood, 47 N. Y., 351, 

' 2 Kent Com., pp. 143, 144; Browne Dom. Rel., pp. 18, 19 ; Reeve 
Dom. Rel. (4 Ed), p. 95, et seq. 
' 2 Kent Com., pp. 146-149; Browne Dom. Rel., pp. 20-25. 

* 2 Kent Com., pp. 149, 150 ; Reeve Dom. Rel. (4 Ed.), p. 100 ; 
Browne Dom. Rel., p. 26. 



124 MAEEIAGE. [ § 77. 

her husband. If, for example, the husband seeks the 
aid of a court of equity to get possession of his wife's 
property to which he may be entitled in law, he wiU be 
required first to make a reasonable provision out of it for 
the maintenance of herself and her children. 

And chancery wiU sometimes restrain the husband 
from recovering her property at law, until a suitable pro- 
vision is made for her support. ' 

It only remains to notice, that by statute in many 
States of the Union the marital unit is broken into frac- 
tions, the wife being empowered to hold and deal with 
her property independent of her husband, with equal 
freedom, and to the same extent, as Sufeme sole. 

For the law on this subject as thus changed, reference 
must be had to the statutes of the several States. 

> 2 Kent Com., p. 189, et seq.; Reeve Dom. (4 Ed.), p. 12 and notes 



§ 78. J GIFTS INTEE VIVOS. 125 



CHAPTEE IX. 

THE THIRD GENERAL MODE OF ACQUIRING TITLE TO 

PERSONAL PROPERTY — TRANSFER BY ACT 

OF THE PARTIES. 

Sections 78-84. Gifts inter vivos. 

85-89. Gifts causa mortis. 
90-95. Title by wiU or testament. 
96-114. Sales. v 

115. Indorsement. 

116. Assignment. 

117. Bailment. 

This general mode includes : I. Gifts inter vivos/ II. 
QHts causa' mortis/ III. Title by vrill or testament ; lY. 
Sales; V. Indorsements; YI. Assignments; YII. Bail- 
ments. 

These will now be severally discussed ia their order. 

I. Gifts Inter Yimos. 

§ 78. Definition, and subjects, of these gifts. — A 

gift vnter vivos is a voluntary, actual, and immediate 
transfer of a thing by one living person to, or fdr, 
another living person. The student should observe that 
the term ' ' voluntary ' ' here, and generally in the law, 
means without consideration.' 

' Bouv. L. Diet., "gift;" 3 Kent Com., p. 438, et seq.; 1 Pars. 
Cont., (7 Ed.), pp. 334-336; 3 Sch. Pers. Prop., p. 68, et seq.; Williams 
Pers. Prop., p. 36; Bish. Cont. (Enl. Ed.), §§83, 83; Faxon v. Durant, 
9 Met., 339; Penfield v. Thayer, 3 E. D. Smith, 305, 



126 GIFTS INTEE VIVOS. [ § T9. 

f 

Personal property of every description, corporeal or 
incorporeal, may be transferred by gift. ' 

§ 79. Delivery essential To complete a transfer by 

gift, the donor must have a present intention of renoun- 
cing aU right to, and dominion over, the thing given, 
without power of revocation ; and he must deliver posses- 
sion to, or for the donee." This rule is satisfied by an 
absolute delivery to a third person divesting the posses- 
sion and title of the donor, and intended to confer the 
title upon the donee.' And it has been held, even, that 
the donor may, by an apt declaration to that effect, con- 
vert himself into a trustee for the donee.* Delivery may 
be constructive or symbolical, as well as actual and 
manual. ' 

A debt due from the donee to the donor may be the 
subject of a gift from the latter to the former ; and the 
gift may be consummated by a delivery to the donee by 
the donor of any evidence of the debt existing ; and if 
there be none,. then by a delivery of a receipt in full.* 

' Citations last supra; and see Bogan v. Finlay, 19 La. An., 94. 

' Citations supra under § 78; Sewal v. Glidden, 1 Ala., 53; Ander- 
son V. Baker, 1 Ga., 595; People v. Johnson, 14 HI., 343; Dole v. Lin- 
coln, 31 Me., 433; Reed v. Spaulding, 43 N. H., 114; Carpenter v. 
Dodge, 30 Vt., 595; Irish v. Nutting, 47 Barb., 870; Brink v. Gould, 7 
Lans., 435; Jackson v. Twenty-third Street Railway Co., 88 N. Y., 
530, 536; Wallace v. BurdeU, 97 Id., 131. 

' Hurlbut V. Hurlbut, 49 Hun, 189; Young v. Young, 80 N. Y., 433, 
430; Hutchings v. Miner, 46 N. Y., 456; Sch. Pers. Prop.', pp. 80, 83. 

* Taylor v Kelley, 5 Hun, 115; Gray v. Barton, 55 N. Y., 68, 73. 

' Citations supra under § 78; Allen v. Cowan, 83 N. Y., 503; Marsh 
V. FuUer, 18 N. H., 360; Cooper v. Burr, 45 Barb., 9; Hackney v. 
Vrooman, 63~Id., 650; Camp's Appeal, 36 Conn., 88; Gardner v. Mer- 
ritt, 33 Md„ 78. 

' Gray v. Barton, 55 N. Y., 68; 3 Sch. Pers. Prop., p. 90, 



§ 80. J - GIFTS INTER VIVOS. 127 

If the subject of the gift be a chose in action^ there 
must be an assignment or what is equivalent to it ; and 
the transfer must be actually executed. ' 

Equitable assignments are recognized and enforced 
where there is not a perfect legal transfer under the rules 
of the common law, and yet where the donor has so far 
completed his gift that the donee is entitled, in justice, 
to invoke the aid of a court of equity to perfect his title. " 

§ 80. "Validity of gifts. — Stolen goods cannot be the 
subject of a vahd gift as against the true owner. The 
thief takes no transmissible interest ; and the general rule 
of law that one cannot transfer a better title than he 
possesses applies with full force to gifts.' But the 
equities of subsequent hona fide purchasers will be 
respected.* 

Gifts of chattels prejudicial to the rights of creditors 
^re invalid. It is a well established rule' of law, that a 
man holds his property subject to its liability for his 
•debts ; that he must be just before he is generous; and 
he is not at liberty to alien his property by gift, or 
otherwise, in fraud of his creditors.' 

' 2 Sch. Pers. Prop., pp. 72-74; 3 Kent Com., p. 439. 

' 2 Sch. Pers. Prop., pp. 75-79; Williams Pers. Prop., p. 86; Grover 
V. Grover, 24 Pick., 361; Wing v. Merchant, 57 Me., 383 ; AUerton v. 
Lacey, 10 Bosw., 362; Ellison v. Ellison, 6 Ves., 656; Ex parte 
Dubost, 18 Id., 140, 150; Vandenberg v. Palmer, 4 Kay & John., 304. 

« 2 Sch. Pers. Prop , 100; HoflEman v. Carow, 33 Wend., 385. 

* 2 Sch. Pers. Prop., p. 100; Anderson v. Green, 7 J. J. Marsh , 448; 
Black V. Thornton, 31 Ga.. 641; Green v. Kornegay, 4 Jones (N. C), 
X,., 66; Moultrie v. Jennings, 2 McNull (S. C), 508. 

' Supra, § 5; 2 Sch. Pers. Prop., p. 101, et seq.: 3 Kent Com., pp. 
440-443 ; 1 Pars. Cont. (7 Ed ), p. 235 ; Thomson v. Dougherty, 13 
Serg. and R., 448; Hanson v. Buckner, 4 Dana, 251; Sexton v. 



128 GIFTS INTEE VIVOS. [ §§ 81, 82. 

§ 81. Gifts on condition, with reservation, or a 
trust. — Gifts are sometimes made with a condition or 
reservation imposed by the donor; in which cases the 
transfer is sometimes upheld as a qualified gift, and some- 
times fails altogether, according to circumstances.' 

If there be a lawful condition precedent imposed, the 
gift win take effect when, and only when, the condition 
is complied with.' 

Trusts are sometimes attached to gifts at the time of 
delivery, which are sustained by the courts." 

§ 82. Gifts between parent and child. — Ordinarily 
the law does not presume a gift ; but, in the absence of 
qualifying or contrary evidence, a delivery of personal 
property by a parent to his child, on or after marriage, 
will be regarded as a gift or advancement. And, gen- 
erally, less evidence is requisite to characterize the trans- 
fer of personal property by parents to children as a gift, 
than in cases of non-kinship.* 

Wheaton, 8 Wheat., 229; Gannard v. Elslava, 30 Ala., 733; Clark v. 
Depew, 35 Penn. St., 509; Trimble v. Ratcliflfe, 9 B. Mon., 511. 

' Citations last supra; The Lucy Ann, 33 Law Eep., 545; Duclaud 
V. Rousseau, 3 La. AH., 168; Wolf v. Estes, 7 Ind., 448; Hope v. 
Hutchins, 9 Gill and J. (Md.), 77; Duncan v. Self, 1 Murph. OS. C), 
446; Pitts v, Mangum, 3 Bailey, 588; Withers v. Weaver, 10 Penn. 
St., 891. 

" 3 Sch. Pars. Prop., p. 116; Berry v. Berry, 81 Iowa, 415; Martrick 
V. Linfleld, 31 Pick., 385. 

» 3 Sch. Pers. Prop., pp. 115-117; Marston v. Marston, 1 Post., 491. 

* HaUowell v. Skinner, 4 Ired. (N. C.) L., 165; White v. Palmer, 1 
MoNuU (S. C), Ch. 115; Whitfield, v. Whitfield, 40 Miss., 353; Syler 
V. Eckhart, 1 Binn. fPa.), 378; Young v. Glendeming, 6 Watts (Pa.), 
509; Van Deusenv. Rowley, 8 N. Y., 358; Caldwell v. Pickens, 3» 
Ala., 514. 



§§ 83, 84.J GIFTS INTER VIVOS. 129 

But a gift bj'' the child to the parent, while the former 
is still under parental authority, is presumed to be made 
under parental influence, and therefore invalid. The 
burden of proof rests upon the parent to rebut the pre- 
sumption, by showing that the child had independent 
advice, or was otherwise in a position to exercise an 
independent judgment as to the gift.' 

§ 83. Gifts between husband anid wife. — At common 
law there cannot be a gift from the husband to the wife 
during coverture, they being one person only, in dbntem- 
plation of law. But equity has always upheld such gifts, 
whether made with, or without, the intervention of a 
trustee, when the claims of creditors were not affected.' 

§ 8i. Kevocation of gifts When a gift is fully 

executed it is irrevocable as to the parties and their legal 
representatives, except for fraud, force, undue influence, 
or mental incapacity on the part of the donor. Gifts are 
no more revocable in their nature than transfers of prop- 
erty in other modes. Possession being given with intent 
, to part with the property in the thing, the right of 
ownership and dominion for all purposes goes with it. 
But in behalf of creditors and bona fide purchasers, 
executed gifts may be set aside.' 

' Story Eq. Jur., § 309; I*om.,Bq. Jur., § 963; Browne Dom. Eel., 
p. 78; Burgen v. Udal, 31 Barb., 9; Taylor v. Taylor, 8 How., 199; 
Archer v. Hudson, 7 Beav., 551. 

» 3 Kent Com., p. 168; Shuttleworth v. Winter, 55 N. Y., 634; Ryn- 
dera V. Crane, 3 Daly, 339; Scott v. Simes, 10 Bosw., 314; Woodson 
V. McClelland, 4 Mo., 495; Neufville v. Thomson, 3 Edw., Ch. 93; 
Mack V. Mack, 3 Hun, 333. 

' 3 Sch. Pers. Prop., p. 114; 2 Kent Com., p. 440; 1 Pars. Coni. 
(7 Ed.), p. 336; Sanborn v. Goodhue, 38 N. H.,48; Thomson v. Dough- 
9 



130 GIFTS OATJSA MOETIS. [ § 85. 

II. Oifts Causa Mortis. 

§ 85. Definition. — Various definitions of gifts causa 
•mortis are found in the books, differing in some unim- 
portant respects, but none is more accurate and compre- 
hensive than that of Judge Eedfield. He says : ' ' Thej 
may be defined as gifts of personal estate, made in pros- 
pect of death at no very remote period, and which are 
dependent upon the condition of death occurring sub- 
stantially as expected by the donor, and that the same be 
not revoked before death." ' 

The original source of our law upon this species of gift 
is found in the civil law." It occupies a middle ground 
between gifts inter vimos and legacies, partaking in some 
respects of the nature of both, while differing from each 
in other particulars.' It has the substantial qualities of 
a legacy in being ambalatory and revocable during the 
life of the donor, in not vesting until donor's death, and 
in being subject to the debts of the deceased ; but differs 
from a legacy in that no action of a court, or assent of the 
executor, is essential to confirm and effectuate it.* It is 

erty, 13 Serg. & R., 448; Hanson v. Buckner, 4 Dana, 251; Clark v. 
Depew, 35 Penn. St., 509; Saxton v. Wheaton, 8 Wheat., 339. 

1 3 Redf. Wills (3 Ed.), p. 323, § 43; and see 3 Sch. Pers. Prop., p. 
133; 3 Black. Com., p. 514; 3 Kent Com., p. 444; Bouv. L. Diet., 
" dona mortis cauisa ;" Michener v. Dale, 23 Penn. St., 59; Nicholas 
V. Adams, 3 Whart., 33; And. L. Diet., "Donatio mortis causa." 

"3 Kent Com., p. 444. 

' 3 Redf. WiUs (3 Ed.), p. 333, § 43, sub. 3; 3 Sch. Pers. Prop., p. 
126; Bunn v. Markham, 7 Taunt., 334, 331; Merchant v. Merchant, 
SBradf. Surr. Rep., 432; Ward v. Turner, 2 Ves. Sen.. 431, 439, 440; 
Lawson v. Lawson, 1 P. Wms. , 441. 

* Citations last supra. 



§ 86.] GIFTS CAUSA MOETIS. 131 

like a gift inter vivos in respect to the competency of the 
donor, the subjects of the gift, what constitutes the gift, , 
delivery, and invalidity as against the rights of creditors ; 
and unlike in* respect of its revocability during the life of 
the donor.' 

§ 86. Essentials to this gift. — To constitute a gift 
oa-Msa mor■<^s three elements are essential : 1. It must be 
made with a view to donor's death from present illness, 
or from external and apprehended peril ; 2. The donor 
must die of that ailment or peril ; and 3. There must be 
a delivery. 

Under the head of gifts inter vivos were discussed the 
competency of the donor, the subjects of the gift, deliv- 
ery, and the effect upon creditors of the donor;'' and as 
the same doctrines apply to and goverm gifts causa mortis 
in the particulars named, it is only necessary here to 
consider the rules specially applicable to this species, and 
not comrdon to both. 

1. The gift must be made with a view to the donor's 
death from present iUness, or from external and appre- 
hended peril. 

This requisite has been the subject of much discussion, 
and some contrariety of judicial opinion. But the gen- 
eral doctrine established by the best considered cases is, 
that the donor must be in expectation of death, then 
imminent, either from illness or external peril.' The 

' Citations last mpra ; and see 1 Pars. Cont. (7 Ed.), p. 337. 

» Supra, §§ 78-84. 

'Gourley v. Linsenbigler, 51 Penn. St., 345; Irish v. Nutting, 47 
Barb., 370; Nicholas v. Adams, 3 Whart., 17; Smith v. Dorsey, 38 
Ind., 451; Craig v. Kittredge, 46 N. H., 57. 



132 GIFTS CAUSA MOBTIS. [ § 87. 

case of Grymes v. Hone ' has been cited as holding that 
old age alone will satisfy the rule under consideration. 
But a careful examination of the facts and opinion will 
show, that in addition to old age, f wiling healthy from 
which the donor never recovered, was an important 
factor in the case. 

2. The donor must die of the ailment, or peril, in view 
of which the gift was made. If he be ill and recover, or 
in peril and escape, the gift does not take effect. On 
this point the authorities are in harmony.' 

§ 87. Title of donee, delivery, and effect The 

donee derives title directly from the donor in his life- 
time, and not from his executors, or by virtue of admin- 
istration. Nor has the executor or administrator of the 
donor any claim upon the subject of the gift, for the 
purpose of administration and the shares of distributees.' 

To complete this kind of gift, as in case of gifts inter 
vivos, delivery is essential. But there are some points of 
difference between the two species in this regard, which 
should not be overlooked. In the case of a gift inter 
vivos there must be such a delivery by the donor, either 
actual or symbolical, to or for the donee, as will divest 
the former of all title to, and dominion over, the subject 
of the gift, and irrevocably vest the same in the donee. 
In the case of gifts causa mortis a distinction is made 

M9N. T.,17. 

» 3 Redf. Wills (2 Ed.), p. 334, § 43, sub. 5; 3 Kent Com., p. 444; 2 
Sch. Pers. Prop., p, 151; Drury v. Smith, 1 P. Wms., 404 ; Blount v. 
Burrow, 1 Ves. Jun;, 546; Grymes v. Hone, 49 N. Y., 17, 20. 

'Gannet v. Tucker, 18 Ala., 37; House v. Grant, 4 Lans., 296; 
Webster v. DeWitt, 36 N. Y., 340. 



§ 88.] GIFTS CATTSA MOETIS. 133 

between delivery to an agent of the donor, and a trustee 
of the donee. The possession of the agent would be the 
possession of his principal, the donor, whose death would 
terminate the agent's authority, so that he could not 
thereafter make a valid delivery to the donee. But 
possession of the trustee would be the possession of his 
principal, the donee; so that delivery to the trustee is, 
in effect, delivery to the donee, thus completing the gift, 
subject to revocation ; and the trustee has power to make 
actual delivery to the donee after the donor's death, in 
case of non-revocation. 

The fact that the donor of a gift causa mortis has, 
during his Kfe, the power of revocation, logically implies 
that such a delivery has taken place as would sustain a gift 
mter vivos, otherwise there would be nothing to revoke. ' 

§ 88. Revocation. — "We have seen that gifts int&r vivos, 
when complete, are irrevocable. " But a gift causa mortis, 
until fully confirmed by the donor's death as contem- 
plated, is revocable in three instances : 1. By the donor's 
recovery from the particular illness, or escape from the 
imminent peril, in view of which the gift was made; 
2. By the death of the donee prior to that of the donor; 
and, 3. By the act of the donor revoking the gift.' 

< 3 Sch. Pers. Prop., pp. 152-167; Ward v. Turner, 2 Ves. Sen., 431; 
Irish V. Nutting, 47 Barb., 370; Hatch v. Atkinson, 56 Me., 324; Ses- 
sions V. Mosely, 4 Cush., 87; Farquharsonv. Cave, 2Coll., 356; Moore 
V. Darton, 4 DeG. & Sm , 517. 

» Supra, § 84. 

* 2 Sch. Pers. Prop., p. 176, et seq.; 2 Kent Com., p. 444; Weston v. 
Hight, 17 Me., 287; Merchant v. Merchant, 2 Bradf. Surr. Rep., 482; 
Bunn V. Markham, 7 Taunt., 330; Wiggle v. Wiggle, 6 Watts, 533; 
Parker v. Marston, 27 Me., 196. 



134 TITLE BY WILL OE TESTAMENT. [ §§ 89, 90. 

But these gifts are not revoked by the donor's subse- 
quent will ; £!,nd for the reason that on his death the title 
of the donee becomes absolute, and therefore irrevocable 
by the wUl, which is inoperative during the donor's life- 
time, the only period during which he "could exercise the 
power of rSvocation.' 

§ 89. Not favored in the law. — In closing this topic 
it should be noticed, that gifts causa mortis are not 
favored in the law. They are regarded as a fruitful 
source of litigation, and lack the formalities and safe- 
guards surrounding wills, designed to prevent fraud and 
injustice.' 

III. Title l>y Will or Testam&nt. 

§ 90. Why assigned to this division. — Title by will 
or testament is classed with transfers by act of the party, 
for the reason that it is derived imiiiediately from the 
testator who, by virtue of his will, executed with due 
formality, gives direction to his property after his death. 
The title comes to his legatees, not in virtue of a common 
law rule, or by force of a statutory provision, as to dis- 
tributees in case of intestacy, but by act of the testator 
in making and publishing his last will and testament. 
True, the beneficiaries do not take possession of, and 
acquire dominion over, the property given them by the 
will without the action of an intervening party or court, 

' Merchant V. Merchant, supra; Nicholas v. Adams, 2Whart., 17; 
Jones V. Selby, Free. Ch., 300. 

« 1 Debnotte v. Taylor, 1 Eedf. Surr. Rep., 417; Duffleld v. Elwees, 
1 Bligh (N. S.), 533; Walsh v. Sexton, 55 Barb., 251, 356; TiUinghast 
V. Wheaton, 8 R. I., 536; Hatch v. Atkinson, 56 Me., 824; Brown v. 
Brown, 18 Conn., 410. 



§ 9 O.J TITLE BY WILL OE TESTAMENT. ' 135 

as the donee takes from the donor in case of a gift 
inter vivos, or the vendee from the vendor in case of a 
sale; but the title of legatees comes, nevertheless, in 
virtue and by force of the act of the testator. ' 

There are several kinds of legacies : general, specific, 
demonstrative, cumulative, vested, contingent, absolute, 
conditional, and residuary; but their consideration is 
omitted here, as unnecessary for the purpose of explain- 
ing the method of acquiring title now under discussion, 
and not within the scope of this treatise. The subject of 
legacies is examined ^os^.° 

The student wiU observe, that when the will operates 
upon personal property it is often called a testament, and 
when upon real estate, a devise ; but the more general 
and popular denomination of the instrument is, last will 
and testament. Devise is the appropriate term for the 
testamentary disposition of real estate, legacy, for per- 
sonal property; bequest is applied indiscriminately to 
devises and legacies, embracing both real and personal 
property. But as bequest has no corresponding term to 
designate the taker, like devisee and legatee, it is not 
always a convenient term for use.' These terms are 
often used inaccurately and indiscriminately in testa- 
mentary instruments, sometimes causing perplexity in the 
construction ; but as the leading rule of construction and 
adjudication is, to ascertain and enforce the intention of 
the testator, the terms employed will not be held to 

• 2 Black. Com., pp. 513, 513; 1 Sch. Pers. Prop., p. 728, et seq.; 2 
Eedf. WUls, p. 215, g 16; 1 Rop. Leg., 842. 

» § 130. 

» 1 Redf. Wills, pp. 5, 6; 1 Williams Ex'rs, 6; 1 Jarm. Wills (Bng. 
Ed. 1861), 702, n. k ; Dupper v. Mayo, 1 Saund., 376 f, n. 4. 



136 TITLE BY WILL OE TESTAMENT. [ §§ 91, 92. 

strict definitions, and may be used indiscriminately with- 
out necessarily thwarting the will of the testator.* 

§ 91. Last will and testament defined. — The books 
contain various 'definitions of a last will and testament, 
differing in phraseology and unimportant particulars, but 
all substantially embodied in the brief definition of Judge 
Redfield — "the disposition of one's property, to take 
effect after death. " ' 

It is well said in Turner v. Scott,' that "the essence of 
the definition of a will is that it is a disposition of prop- 
erty to take effect after death." 

§ 92. Testamentary capacity. — All persons, not under 
natural or legal disability, are competent to execute a 
valid will. The exceptional persons, and grounds of dis- 
ability, wiU now be briefly noticed. 

1. Aliens. — While by the common law aliens are 
incompetent to devise real estate, alien friends — subjects 
of governments at peace with us — may dispose of per- 
sonal property by will. But ahen enemies — subjects of 
governments at war with us — are incapable of executing 
a valid will of personal property, even, unless by special 
License from the government to reside and transact busi- 

' 1 Redf. Wills, pp. 419, et seq., 433, et seq. ; 4 Kent Com., p. 535, et 
seq. ; O'Hara Wills, p. 29, § 5, et seq. ; Wootton v. Redd, 13 Gratt. (Va.), 
196; Lepage v. McNamara, 5 Iowa, 124; Byers v. Byers, 6 Dana 
(Ky ), 312; Pickering v. Langdon, 32 Me., 413; Creswell v. Lawton, 7 
Gill & J. (vid.), 237; Penroyer v. Shelden, 4 Blatohf , 316. 

« 1 Redf. Wills, p. 4. g 2, sub. 1; 2 Black Com., p. 500; 4 Kent Com., 
p. 501; Dayt. Surr., p. 43; Swinb., pt. 1, § 3. 

» 51 Penn. St., 136; and see Frederick's Appeal, 52 Id., 338. 



§ 92. j TITLE BY WILL OR TESTAMENT. 137 

ness within our territorial limits during the continuance 
of hostilities.' 

2. Infants. — Under a certain age an infant is inca- 
pable of disposing of his property, real or personal, by 
last will and testament. The limitation of age is regu- 
lated by statute, both in England and in the American 
States, and is not uniform ; but quite generally the age 
of testamentary capacity is earlier in females than in 
males, and for the assumed reason that the former mature 
earlier than the latter. In England until a coraparativelj'' 
recent period, in conformity to the Eoman civil law, 
males at fourteen, and females at twelve," might dispose 
of their personal estate by wiU. But the present English 
statute on the subject provides, that ' ' no will made by 
any person under the age of twenty-one years shall be 
valid.'" 

In New York, males at eighteen, and females at six- 
teen, may bequeath their personal estate by wiU. * 

Each State has its own statutory provisions on the 
subject, and to these the student and practitioner wUl 
necessarily refer. 

8. Coveri/ure. — Under the Eoman civil law, the married 
woman had the same testamentary capacity as a feme 
sole ; but in England _ coverture created a disability. 
To this rule, however, there were several exceptions. In 
many of the American States women were, until a com- 

> 1 Eedf. Wills, p. 8, § 3, sub. 3; 3 Kent Com., pp. 63, 63; 1 Pars. 
Cont. (7 Ed.), pp. 397, 398; Williams Pers. Prop,, p. 46. 
« 3 Black. Com., p 497. 
» 1 Vic, c. 36. 

* 4 N. Y. R. S. (8 Ed.), p 3547, § 31. 



138 TITLE BY WILL OR TESTAMENT. [ § 92. 

paratively recent period, and in some of the States still 
are, subject to this disability. But it is fast disappearing 
before the tide of modern legislation setting in that 
direction. ' 

4. Mental incapacity. — This exception covers a wide 
field, embracing idiocy, imbecility, insanity in its various 
species and multiplex nomenclature, and, generally, all 
persons included in the comprehensive designation non 
compos mentis. 

It is generally held, that where the testator is free 
from the presence and disturbing influence of adverse 
parties, a lower degree of mental capacity will suffice to 
make a valid will, than is requisite for the transaction of 
other business where two minds, stimulated by opposite 
interests, contend for advantage.' 

But the testator ' ' must, at the time of executing the 
will, have had sufficient capacity to comprehend per- 
fectly the condition of his property, and his relations 
towards the persons who are or might be the objects of 
his bounty, and the scope and bearing of the provisions 
of his will.'" • 

5. Undue vnjlaence^ and fraud. — It is not only essen- 

' 1 Eedf. Wills, p. 21, § 3; Reeve Dom.Rel. (4 Ed.), p. 187, n. J; 
Browne Dom. Eel., p. 53. 

' Converse v. Converse, 31 Vt , 168; Stevens v. Vancleve, 4 Wasli. 
C. C, 263; Thompson v. Hyner, 65 Penn., 368; S. P. Stubbs v. Hous- 
ton, 33 Ala., 555; Howard v. Coke, 7 B. Mon. (Ky.), 655; Kinne v. 
Kinne, 9 Conn., 103; and see Delafleld v. Parish, 25 N. Y., 9. 

* Delafield v. Parish, last supra, p. 29; Van Guysling v. Van Kuren, 
35 N. Y., 70; Tyler v. Gardiner, Id., 559; Hall v. HaU, 18 Ga., 40; 
Sutton V. Sutton, 5 Harr. (Del.), 459; Hathorn v. King, 8 Mass., 371; 
Domick v. Reichenbaok, 10 Serg. & R., 84; Home v. Home, 9 Ired. 
(N. C.) L., 99. 



§ 93.J TITLE BY WILL OE TESTAMENT. 139 

tial that the testator should have had the requisite mental 
capacity at the time of executing his will, but he must 
have been free to use the same. In other words, the 
instrument produced as his last will and testament, must 
have been his will, and not that of another. The exer- 
cise of undue influence, or practice of fraud, may so 
dominate or blind the testator as to induce him to affix 
his executive hand to an instrument that does not express 
his assenting will. Such an instrument, it is scarcely 
necessary to state, is invalid. 

To constitute undue influence having the effect stated, 
it must be such as is -exercised by coercion, imposition, or 
fraud, and not that which arises from gratitude, affection, 
or esteem.' 

§ 93. Written, and unwritten wills. — At common 
law, a will of personal property was good without writ- 
ing;" but now, both in England and the United States, 
nuncupative wills are not valid, as a general rule at least, 
except in the two cases of sailors and soldiers, while in 
actual service and danger.' 

A will may be written on any material, and in any 

' Kinne v. Johnson, 60 Barb., 69; Van Hanswyck v. Wiese, 44 Id., 
494; Clarke v. Davies, 1 Eedf. Surr. Rep., 349; Gardiner v. Gardiner, 
34 N. Y., 155; Hartman v. Strickler, 83 Va., 335; Waddington v. 
Buzby, 43 N. J. Eq., 154; Trost v. Dingier, 118 Pa. St., 359; Storey's 
Will, 30111, App,, 183. 

» 4 Kent Com., p. 517; Swinb. WDls, 6; Prince v. Hazleton, 20 
Johns., 502; Ex parte Thompson, 4 Bradf. Surr. Rep., 154. 

' Citations last supra; and Gwin's Estate, 1 Tuck. Surr., 44; Hub- 
bard v. Hubbard, 8 N. Y., 196; Black. Com., pp. 500, 501; 4 Kent 
Com., p. 517. 



140 EEVOCATION OF WILL. [ § 94. 

language ; in pencil instead of ink ; and the whole or a 
portion may be in print, an engraving, or lithograph. ' 

§ 94. EeTOcation. — A wiU, being ambulatory during 
the testator's life,' may be revoked by him at his 
pleasure ; and it is also revocable by implication or infer- 
■ence of law.* 

1. The testator may revoke by a subsequent duly 
•executed will, or, pro tanto, by a codicil.* But the rules 
in regard to testamentary capacity, and formalities of 
execution, apply to a subsequent wiU, and codicil, and 
must be observed or the instrument wiU have no effect 
oipon a former will. ' 

2. The testator may revoke his will by burning, tear- 
ing, canceling, obliterating, or otherwise destroying the 
instrument itself, with the intent of revoking the same. ' 
But such a revocation requires testamentary capacity, 
the same as required to execute a wiU. There must be 

' 1 Redf. "Wills, pp. 165, 166; In re Dyer, 1 Hagg., 319; Schneider v. 
JSTorris, 2 M. & S., 286; Temple v. Mead, 4 Vt., 536; Henshaw v. 
Foster, 9 Pick., 313; Kell v. Charmer, 33 Beav., 195. 

» Supra § 85. 

»4KentCom.,p. 521. 

* 1 Redf. Wills, pp. 344-365; Christmas v. Whingates, 3 Swab. & 
Tr., 81; White v. Casten, 1 Jones, L. N. C, 197; Nelson v. McGiffert, 
-3 Barb., Ch. 158; Conovor v. Hoffman, 15 Afeb. Pr. R., 100; Van Wert 
V. Benedict, 1 Bradf . Surr. , 114. 

' Citations last supra; and Boylan v. Meeker, 28 N. J. L., 274; 
WikofE's Appeal, 15 Pa. St , 281; Nelson v. Pub. Adm'r, 2 Bradf. 
Surr., 210; Delafleld v. Parish, 35 N. Y., 9; Smith v. McChesney, 15 
N. J., Ch. 359. 

• 1 Redf. Wills, pp. 345-847; Burtenshaw v. Gilbert, Cowp., 51; 
Smith V. Clark, 34 Barb., 140; Smith v. Dolby, 4 Harr. (Del.), 350; 
rSumner v. Sumner, 7 Harr. & J. (Md.), 388. 



§ 95.] WHEN WILL TAKES EFFECT. 141 

an intelligent animus revoeandi, and freedom of volitiom 
and action. ' 

3. Marriage and the birth of issue. The rule gener- 
ally obtains that the marriage of a feme sole works a 
revocation of her will previously executed. The marriage 
of a man does not, of itself alone, have the Same effect ; 
but marriage and the birth of issue does so operate, 
unless where the father prior to making his will, or 
cotemporaneously therewith, makes express provision, by 
a separate instrument, for such future issue." 

4. Eevocation by the birth of children subsequently to 
the execution of a will is quite generally regulated by 
statute in this country. The statutory provisions of the 
different States on the subject, are not in all particulars 
alike ; but the prevailing rule is, that the birth of a child 
revokes a will previously made, so far, at least, as to let 
in the child to a share in the property, unless some pro- 
vision is made for it, either in the will or otherwise.' 

§ 95. When the will takes effect. — A will of per- 
sonal property does not, as a rule, take effect, nor are 
there any rights acquired under it, until the death of the 



' Idley V. Bowen, 11 "Wend., 335; Matter of Forman, 54 Barb., 374; 
'smith V. Waite, 4 Id., 38; Laughton v. Atkins, 1 Pick., 435; 1 Eedf. 
WiUs, pp. 303, et seq. 

« 1 Eedf. WiUs, pp. 393-303; Hodsden v. Lloyd, 3 Br. Cr. Cas., 534; 
Cotter V. Layer, 2 P. Wms., 633, 634; Kenebel v. Scrafton, 3 East, 
530; Bush v. Wilkins, 4 Johns., Ch. 506; Warner v. Beach, 4 Gray, 
163; Morton V. Onion, 45 Vt., 145. 

» 4 Kent Com., p. 536; Walker v. Hall, 34 Pa St, 483; Ash v. Ash, 
9 Ohio St., 383; Fallow v. Chidester, 46 la., 588; Deupree v. Deupree, 
45 (ja., 415; Bloomer v. Bloomer, 3 Bradf. Surr., 339. 



142 SALES. [ § 96. 

testator. In legal phrase, a will speaks from the death 
of the testator. ' 

The subject of wills is regulated by statute in the sev- 
eral States of the Union, presenting considerable diver- 
sity of provisions, so that general rules, only, could here 
be given ; and only a few of the multitude of cases on 
the subject have been cited. 

lY. Sales. 

§ 96. Sale defined. — A bargain and sale of goods, 
termed in brief " a sale," is accurately defined to be "a 
transfer of the absolute or general property in a thing 
for a price in money. ' ' ' Chancellor Kent thus defines a 
sale : "A sale is a contract for the transfer of property 
from one person to another, for a valuable consideration. ' ' * 
This definition differs from the above by embracing cases 
of barter and exchange, where the consideration is other 
than money, and which do not, therefore, constitute a 
sale according to the strict common law definition, which 
requires a consideration in money, paid or promised.* 

' Jarm. Wills (5 Am. Ed.), 600; Banks v. Thornton, 11 Hare, 176, 
Delasherois v. Delasherois, 11 H. L. Cas., 62; Wagstaff v. Wagstaff, 
Law E. Eq., 229; Deegan v. Livingston, 15 Mo., 230; Leigh v. Savidge, 
14 N. J. Eq., 124; Gourley v. Thompson, 2 Sneed (Tenn.), 387; Can- 
fleld V. Bostwick, 21 Conn., 550; George v. Green, 13 N. H., 521; 
Van Vechten v. Van Veohten, 8 Paige, 104. 

' Benj. Sales (Ed. 1888), p. 1; 2 Sch. Pers. Prop., 186; 2 Black. 
Com , p. 446; gtory Sales, § 1; Martin v. Adams, 104 Mass., 262; 
Wittowski V. Wasson, 71 N. C, 451; Smith v. Weaver, 90 HI.. 392; 
Creveling v. Wood, 95 Pa. St., 152, 158. 

2 2 Kent Com., p. 468. 

* Benj. Sales (Ed. 1888), p. 1, n. 1; 1 Pars. Cont. (7 Ed.), p. 681, n. 
<g); Mitchell v. Gile, 12 N. H., 390; Vail v. Strong, 10 Vt., 457. 



§ 96. J SALES. 143 

But it lias been held that if property be taken at a fixed 
money price, the transfer amounts to a sale, whether the 
price be paid in cash or in goods.' The distinction 
between a sale and barter or exchange is frequently 
ignored in the books; and, indeed, it is not of much 
practical importance, as the principal elements of the 
contract, and the rights and remedies of the parties, are 
substantially the same in both cases.' 

Mr. Tiedeman, in his recent excellent treatise on Sales, 
formulates for his treatment of the subject the following 
definition : "In the sense in which the term is to be 
employed in this book, a sale may be defined to be a 
contract or agreement for the transfer of the absolute 
property in personalty from one person to another for a 
price in money.'" This definition differs from the com- 
mon one by emb^'acing in effect executory sales. The 
•distinction between executed, and executory, contracts of 
sale must be observed in the study of this subject. In 
the former, there is a present transfer of the absolute 
property in the subject of the sale; in the latter, an 
agreement of sale and future transfer ; and in such case, 
the subsequent transfer of the thing converts an 
executory^ into an executed^ contract. It will be observed 
that, while one cannot sell, he may make a valid agree- 
ment toseU, a thing to which he has no present title.* 

' Picard v. McCormick. 11 Mich., 68; S. P. Keiler v. Tutt, 31 Mo., 
301. 

2 Dowling V. McKenney, 124 Mass., 480; Redfleld v. Tegg, 38 N, Y., 
■212 ; Commonwealth v. Clark, 14 Gray, 367 ; Howard v, Harris, 8 
Allen, 297; Mason t. Lothrop, 7 Gray, 355. 

» Tiede. Sales, § 1. 

* Tiede. Sales, § 1; Benj. Sales (Ed. 1888). pp. 1, 8; Am. n. pp. 3, 4; 
Joyce V. Murphy, 8 N. Y., 391; Blaisdell v. Souther, 6 Gray, 153; 



144: SALES. [ §§ 97-99. 

§ 97. Elements of a Talid sale A concurrence of 

the following elements is essential to a valid sale, viz: 
1. Parties competent to contract; 2. Mutual assent; 3. 
A thing, the absolute property in which is the subject of 
the transfer ; and 4. A price iji money paid or promised. 

These elements will now be treated briefly in the order 
named. 

§ 98. Parties competent to contract. — For a full 
discussion of the subject of competency, reference must 
be had to works embracing the subject of contracts in 
general; and contracts of sale. It must suffice for pres- 
ent purposes to state, that to constitute a valid sale, the 
parties must have both natural and legal capacity to con- 
tract. ' ' By natural capacity is meant a competent 
measure of mental power. Legal capacity includes 
natural, and also the permission of the law to exercise 
it. ' " There may be a want of either, or both, which 
creates incompetency to contract. For example, infants, 
persons non compos mentis, drunkards, married women, 
outlaws and persons attainted, aliens, spendthrifts, and 
seamen may be whoUy or partially incompetent. 

§ 99. Mutual assent. — To constitute a valid contract 
of sale, there must be not only competent parties, but 
the mutual assent of these parties to all the terms and 
conditions of the same. The miuds of the parties must 

Elliott V. Stoddard, 98 Mass., 145; Dittmar v. Norman, 118 Mass,^ 
319; Lester v. East, 49Iiid., 588; Powder Co. v. Burkhart, 97 U. S., 
110. 
' Met Cont. (Heard's Ed.), p. 41. 



§ 99.] SALES. 145 

meet, and assent to the same thing, in the same sense, and 
at the same instant of time.' 

If an o;ffer be made by one party in writing, orally, 
personally, by agent, by mail or telegraph, and received 
by the other party, its unconditional acceptance by the 
latter, communicated to the first party, completes a con- 
tract. ' If there be a conditional acceptance, or counter 
proposition, communicated to the first party, his assent 
thereto, duly communicated to the second party, is 
requisite to complete a contract. ° It is not essential to 
the completion of the contract that the assent should be 
express. It may be implied from language, or conduct, 
such as appropriating the benefits of the proposed con- 
tract, or otherwise treating it as complete, or even 
inferred from silence.* Where the ofPer is made by mail 
or telegraph, the contract is complete when the letter of 
acceptance is mailed, or the* telegram announcing accept- 
ance is deposited with the telegraph company for trans- 

' Bishop Cont. (Enl. Ed.) § 313; 1 Pars. Cont. (7 Ed.), p. 475; Mete. 
Cont. (Heard's Ed.), p. 16; Tiede. Sales, § 33; Benj. Sales (Ed. 1888), 
p. 43; Am. n. pp. 70-75; Dickinson v. Dodds, 2 Ch. D., 463, 472; Cook 
V Oxley, 3 T. E., 653; Jordan v. Morton, 4 M. & W., 155; Allis v. 
Read, 45 N. Y., 143, 149; Utley v. Donaldson, 94 U. S., 39, 47. 

» Tiede. Sales, §§ 38, 39; Bishop Cont. (Enl Ed ), §§ 331-334. 

« Tiede Sales, § 37; 1 Pars. Cont., p. 477; Moss v. Sweet, 16 Q. B., 
493; Derrick v. Monette, 73 Ala., 75; Baker v. Holt, 56 Wis., 100; 
Ashcroft V. Butterworth, 136 Mass., 511; Stagg v. Compton, 81 Ind., 
171. 

* Tiede. Sales, § 38; Benj. Sales (Ed. 1888), p. 43; Am. n. pp. 70-75; 
Joyce V. Swaee, 17 C B. (N S ), 84, 101; Gowing v Knowles, 118 
Mass. 333; Street v. Chapman, 29 Ind., 143; Payne ^ Cave, 3 T. R., 
148; Hoadley v. McLaine, 10 Bing., 483, 487; Brogden v. Metrop. 
Railway Co., 3 App. Cas , 666; Taylor v. Jones, L. B. C. P. D., 87, 
90; Crook v. Cowan, 64 N. 0., 743. 
10 



146 SALES. [ § 99. 

mission, althougli sucli letter or telegram should never 
reach the offerer.* 

Communication by telephone and phonograph being 
among the latest realizations of science, the rules govern- 
ing the use of these instrumentalities in commercial 
transactions are not yet established. But, as the human 
voice is the immediate vehicle of the message conveyed, 
such communications vrill probably be regarded as per- 
sonal.' 

If, by reason of a mistake of fact in regard to the sub- 
ject matter, or terms of the contract, the minds of the 
parties do not meet, there will be no mutual assent to the 
same contract, and, therefore, no sale or contract binding 
upon either party. And the same rule applies where one 
of the parties mistakes the other for a third person ; in 
which case he makes no binding contract.' 

An offer may be withdrawn at any time before accept- 
ance, unless there be an agreement for a valuable consid- 
eration to hold it open a stipulated time for acceptance. 
In case of such an agreement, should the party making 
the offer withdraw the same before the expiration of the 
stipulated time, he would become Liable to the other 

' Mactier v. Frith, 6 Wend., 103; Adams v. Lindsell, 1 B. & Aid., 
681; Tayloe v. Insurance Co., 9 How., 390; Vasser v. Camp, 11 N. Y., 
441; Abbott v. Shepard, 48 N. H., 14; Howard v. Daly, 61 N. Y„ 363; 
Stookham v. Stockham, 33 Md., 196; Bryant v. Booze, 55 Ga , 438; 
Trevor V. Wood, 36 N. Y., 307; Durkee v. Central Railway Co., 39 
Vt., 127; Thorne v. Barwick, 16 Up. Can. C. P., 869; MarshaU v. 
Jamison, 42 Up. Can. Q. B., 130; Perry v. Mt. Hope Iron Co., 15 R. 
I., 66. 

' See Tiede. Sales, § 39. 

»Tiede. Sales, § 35; Bishop Cont. (Enl. Ed.), S 635, etseq.; Benj. 
Sales (Ed. 1888), p. 57, et scq 



§ 100.] SUBJECT OF SALE. 147 

party for all damage resulting from his breacli of con- 
tract to hold open.' 

§ 100. The subject of the sale. — One of the elements 
of a valid sale, is a thing, the absolute or general prop- 
erty in which is the subject of the transfer." 

The distinctions between absolute and qualified prbp- 
erty will be recalled.' A thing may have, in a certain 
sense, two owners, one of whom has the general, and the 
other the special, property in it. For example, when 
goods are delivered in pawn or pledge, the general prop- 
erty remains in the pawnor, and a special property vests 
in the pawnee. Manifestly, a transfer of the special prop- 
erty is not a sale of the thing. 

At law, there cannot be a sale of a thing that has no 
existence, actual or potential. A nominal sale of prop- 
erty which is not in existence at the time of making, or 
the time of executing, the contract, conveys no title.' 
But, while there can be no executed sale of a thing not 
yet in existence, or the title to which has not been 
acquired by the vendor, there may be a valid executory 
agreement for the sale of such a thing.' And, if the 

' Tiede. Sales, §§ 40, 41; Benj. Sales (Ed. 1888), p. 46, et seg.; Bishop 
Cont. (Enl. Ed.), g§ 78. 321. 

» Supra, §§ 96, 97. 

' Supra, § 4. 

* Tiede. Sales, g 50; Benj. Sales (Ed. 1888), p. 76; Am. n. pp. 80, 81j 
Strickland v. Turner, 7 Ex., 208; Hastie v. Conturier, 9 Ex., 102, and 
5 H. L. C, 673; Lunn v. Thornton, 1 C. B , 379; Young v. Bruces, 5 
Litt., 324; Harris v. Nicholas, 5 Munf., 483; Carpenter v. Stevens, 12 
Wend , 589. 

» Tiede. Sales, § 51; Benj. Sales (Ed. 1888), pp. 78, 79; Am. n. pp. 
80-82; Gittings v. Nelson, 86 111., 591; Chesley v. Joselyn, 7 Gray, 489; 
Head v. Gtoodwin, 37 Me., 182; Cressy v. Sabre, 17 Hun, 120; Gard- 
ner V. McEwen, 19 N. Y., 123; Stanton v. Small, 3 Sandf., 230. 



148 PEICE IN MONEY, ETC. [§101. 

vendor afterwards acquires title, and the vendee obtains 
lawful possession before the rights of third parties 
have intervened, the executory contract is converted into 
an executed contract of sale, and title vests in the ven- 
dee.' 

There may, however, be a valid sale of a tbing in 
potential existence, before maturity of actual existence, 
as, for example, a growing crop, the wool from a flock 
of sheep, or the unborn young of animals." 

"While at law the rules are as now stated, in equity, if 
the subject of the sale can be identified by the description 
in the contract, the sale is valid even though the thing be 
not even in potential existence. As soon as the thing 
comes into existence, or into the possession of the vendee, 
the title passes to him.' 

§ 101. A price In money, paid or promised. — We 

have seen that to distinguish a sale from barter or ex- 
change, there must be a price in money, paid or prom- 
ised.* The price may be fixed by the agreement of the 
parties, or established by implication of law. "When 

' See citations last supra. 

» Tiede. Sales, § 53; Beaj. Sales (Ed. 1888), Am. n. p. 82; Hall v. 
Hall, 48 Conn., 250; MoCarty v. Blevins, 5 Yerg., 195; Fonville v. 
Casey, 1 Murphy (N. C), 387; Sawyer v. Gerrish, 70~Me., 254; Gran- 
tham V. Hawley, Hob., 133; Robinson v. McDonnel, 5 M. & S., 338 ; 
Rawlings v. Hunt, 90 N. C, 370; Conderman v. Smith, 41 Barb , 404. 

» Tiede. Sales, § 53; Benj. Sales (Ed. 1888), Am. n. p. 81; Holroyd v. 
Marshall, 10 H. L. C, 191; Reeve v. Whitmore, 4 De G. J. & S., Ij 
MitoheU v. Winslow, 2 Story, 630; Pennock v. Coe, 23 How., 117; 
McCaffrey v. Woodin, 65 N. Y., 459; Hunter v. Bosworth, 43 Wis., 
583; Phillips V. Winslow, 18 B. Monr., 431; Smithurst v. Edmimds, 
14 N. J. Eq., 408. 

« Supra, g 96. 



§ 102. J STATUTE OF FEAtTDS. 14:9 

property is sold without fixing the price by stipulation, 
the law raises a promise by implication on the part of the 
purchaser, that he will pay for the same what it is rea- 
sonably worth ; and this has the same binding force as an 
express 'agreement of the parties. ' 

§ 102. The Statute of Frauds. — To the common law 
requisites of a valid contract of sale, the Statute of 
Frauds adds other conditions to.certain specified contracts. 
The English Statute of Frauds was enacted in 1676, 
under the title, — " An Act for Prevention of Frauds and 
Perjuries ;" ' and has been adopted, in substance, in most, 
if not all, of the American States. The fourth and 
seventeenth sections of this statute affect contracts of 
sale; the former applying to "lands, tenements, and 
hereditaments, or any interest in or concerning them," 
and the latter to the sale of personal property,, or, in the 
language of the English statute, "any goods, wares, or 
merchandises, for the price of ten pounds sterling or up- 
wards." 

It is the seventeenth section that we now have to con- 
sider. It provides that contracts of this class ' ' shall not 
be allowed to be good ' ' except upon one of three condi- 
tions, namely: 1. The buyer shall accept part of the 
goods so sold, and actually receive the same. 2. Or give 
something in earnest to bind the bargain, or in part pay- 
ment. 3. Or that some note or memorandum in writing 

' Tiede. Sales, § 47; Benj. Sales (Ed. 1888), pp. 83 85; Am. n. pp. 85, 
86; Hoadly v. McLaine, 10 Bing., 483; Taft v. Travis, 136 Mass., 95; 
James v. Muir, 33 Mich., 334; McEwen v. Morey, 60 111., 32; Fenton 
V. Braden, 3 Cranch C, C, 550; Hountz v. Kirkpatrick, 73 Pa. St., 
376. 

' 39 Car. 3, o. 3. 



150 STATUTE OF FRAUDS. [§102, 

of the said bargain be made and signed by the parties to 
be charged by such contract or their agents thereunto 
lawfully authorized. 

These contracts and conditions will now be considered : 

1. WhM contracts embraced. — It may now be regarded 
as settled that this section of the statute embraces execu- 
tory, as well as executed, contracts of sale. This ques- 
tion gave rise to consideraljle discussion, and some con- 
flict of opinion, in the English courts, until it was put at 
rest by a statute known as "Lord Tenderden's Act," ' 
which provides in effect that the seventeenth section of 
the Statute of Frauds shall apply to executory contracts 
of sale. The courts in this country have quite uniformly 
held that executory contracts for the future delivery of 
goods are embraced in this section.' 

2. Cont/racts not embraced. — It may be regarded as 
established that this section of the statute does not apply 
to contracts for work and labor, and materials found. 
But the dividing line between such a contract and a con- 
tract of sale where the vendor's labor and materials enter 
into and become a constituent element in the subject of 
the sale, is not always easily drawn. Considerable dis- 
cussion has arisen, and some contrariety of judicial 
opinion been developed, in an effort to formulate a rule 
for determining on which side of the line a given case 

' Geo. rV, c. 14, sec. 7. 

« Tiede. Sales, § 56; Benj. Sales (Ed. 1888), pp. 88, 89; Am. n. pp. 99, 
100; Newman v. Morris, 4 Har. & McH., 321; Carman v. Smick, 15 
N. J. L., 252; Edwards v. Grand Trunk R. R. Co., 48 Me., 379; Ben- 
nett V, Hull, 10 Johns., 864; Ide v. Stanton, 15 Vt., 685; Atwater v. 
Hough, 29 Conn., 513; Waterman v. Meigs, 4 Cush., 497; Cason v. 
Cheely, 6 Ga., 554; Jackson v. Covert, 5 Wend., 139. 



§ 102. J STATUTE OF FEATJDS. 161 

belongs ; but no universally satisfactory test has yet been 
furnished. There was a lack of unanimity in the English 
authorities down to the case of Zee v. Griffin;^ and in 
this country the cases still fail to harmonize. Some fol- 
low the case of Lee v. Oriffm, which holds, in effect, that 
a contract for the future delivery of a thing which is 
properly the subject of a sale, is a contract of sale, and 
not a contract for work and labor and materials furnished, 
notwithstanding the skill of the vendor is to be exercised, 
and materials are furnished by him, in carrying out the 
contract." Other cases hold, that if the vendor's skill is 
bargained for, it is a contract for work and labor, not a 
contract of sale, and, therefore, not within the Statute 
of Frauds.' The doctrine of another line of cases, 
briefly stated, is, that a contract for the special manu- 
facture of an article which the vendor does not keep in 
stock, is a contract for work and labor and materials 
furnished, and not a sale within the Statute of Frauds. ' 
But where the article ordered is " what the vendor ordi- 

• 30 L. J. Q. B., 352; 1 B. & S., 373. 

' Hardell v. MoClure, 1 Chandl., 371; Brown v, Sanborn, 31 Minn., 
403; Prescott v. Locke, 51 N. H., 94. 

' Downs V. Ross, 33 Wend , 370; Passaic Mfg. Co. v. Hoffman, 3 
Daly, 495; Miller v. Fitzgibbons, 9 Daly, 505; Joy v. Schloss, 13 Id., 
538; Seymour v. Davis, 3 Sandf., 339; Smith v. N. Y. C. E. R. Co., 4 
Keyes, 180; Bates v. Coster, 1 Hun, 400; Kellogg v. Witherhead, 4 
Hun, 373; Cook v. Millard, 65 N. Y., 353; Rentch t. Long, 37 Md., 
188 

"■ Mixer v. Howarth, 31 Pick., 305; Goddard v. Binney, 115 Mass., 
450; Phippsv. McFarlane, 3 Minn., 109; Meincke v. Folk, 55 Wis., 
437; Finney v. Apgar, 31 N. J. L., 371; Hight v. Ripley, 19 Me., 137; 
Allen V. Jarvis, 30 Conn , 38; Bennett v. Nye, 4 Greene (la.), 410; 
Suberv. Pulling, 1 8. C, 373; Gadsen v. Lance, 1 McMul. Eq., 87; 
O'Neill V. N. Y., etc., Co., 3 Nev., 141. 



162 STATUTE OF FRAUDS. , [§102 

narily sells, and it has not been specially prepared for the 
vendee," it is a contract of sale, falling within the 
Statute of Frauds.' 

It is to be hoped that eventually the courts will see 
" eye to eye " on this point, and furnish a uniform rule 
for guidance. 

3. What are '■'■goods, ■wares ^ and merchandise.'''' — 
The English courts restrict this clause of the statute to 
corporeal movable property;" but the American authori- 
ties allow it a broader scope, including incorporeal prop- 
erty, such as shares of stock, ohoses in action, and the 
like.' 

"When the subject of the sale is part of the soil by 
annexation, which becomes personalty on severance, care 
is requisite. in determining whether the case falls within 
the seventeenth section of the statute relating to sales of 
personal property, or the fourth, which applies to real 
estate. All contracts within the latter section must be 
evidenced by a writing ; while in the formei- a writing is 

• May V. Ward, 134 Mass., 137; Clark v. Nichols, 107 Id., 547: Gard- 
ner V. Joy, 9 Met., 177; Lamb v. Crafts, 13 Id., S-iS; Kd wards v. 
Grand Trunk Eailway, 48 Me., 379; 54 Me , 105; Ellison v. Bri;;Jiaui, 
88 Vt., 64; Atwater v. Hough, 39 Conn., 5o9; Sawyer v. Ware, 3G 
Ala., 675. 

» Tiede. Sales, § 59; Benj. Sales (Ed. 1888), p. 105, et seq. 

» Benj. Sales (Ed 1888), Am n. pp. 118-13J: Tisdaie v Han-is, 30 
Pick., 9; Boardman v. Cutler, 128 Mass., 388; Pray v. Wih-Jk-I. (ill 
Me., 430; Fine v. Hornsby, 2 Mo. App , 61; North v. Forrest, 1-t 
Conn., 40p; Calvin v. Williams, 3 H &J.,3«; Riggs v. Magriidt-r, - 
Cranch C. C, 143; Baldwin v. Williams, 3 Met. 367; Hudsou v. V\ pu-, 
39 Ala., 294; Walker v. Suple, 54 Ga , 178. The statute of New York 
expressly includes "things in action," Fart II, Title 3, C. 7, §3. And 
see Archer v. Zeb, 5 Hill. 300; Peaboil> -- Spe^ers, 56 N. Y. 330. 



§102.] STATUTE OF FRAUDS. ISS 

not requisite where the buyer accepts part of the goods 
sold, and actually receives the same, or gives something 
to bind the bargain, or in part payment. As a rule, 
therefore, if the contract contemplates the transfer of 
title before severance, it falls within the fourth section ; 
but, if the transfer is not to take place until after sever- 
ance, it is within the seventeenth section.' 

It should be noticed, however, that in regara to con- 
tracts calling for a transfer of title before severance, the 
authorities distinguish between the natural products of 
the soil, fructus naturales, and annual crops, or the fruits 
of cultivation, fructus indust/riales. If the subject of 
sale be the former, it is quite generally held to fall 
within the fourth section.' But where the natural pro- 
duct of the soil is tobe severed immediately, or within a 
reasonable time, and no further benefit is expected to 
accrue to the purchaser from its connection with the soil, 
the contract is governed by the seventeenth section.' It 

' Smith V. Surman, 9 B. & C, 561; Falmouth v. Thomas, 1 C. & 
M., 105; MarshaU v. Green, 1 C. P. D., 35; Parker v. Staniland, 11 
East, 362; Sainsbury v. Matthews, 4 M. & W., 434. 

« Crosby v. Wadsworth, 6 East, 603; Waddington v. Bristow, 2 B. 
& P., 452; Carrmgton v. Roots, 2 M. & W., 248; G-reen v. Armstrong, 
1 Denio, 550; Kingsley v. Holbrook, 45 N. H., 313; Olmstead v. Niles, 
7N. H., 532; Patfcison's Appeal, 61 Pa. St., 294; Huff v. McCauley, 
53 Pa. St., 306; Daniels v. Bailey, 48 Wis., 566; Lillie v. Dunbar, 63 
Wis., 198; White v. Foster, 103 Mass., 375; Howe v. Batchelder, 49 
N. H , 304; Buck v. Rockwell, 37 Vt., 157; Slocum v. Seymour, 36 N. 
J. L., 138; Warren v. Leland, 3 Barb., 613; Vorebeck v. Rowe, 5 
Barb., 303; HarreUv. Miller, 35 Miss., 700. 

' Marshall v. Green, 1 0. P. D., 35; McClintock's Appeal, 71 Pa. 
St., 365; Whitmarsh V. Walker, 1 Met , 313; Claflin v. Carpenter, 4 
Met., 580; Nettleton v. Sikes, 8 Met., 34; Smith v. Bryan, 5 Md., 141 
Boyce V. Washburn, 4 Hun, 793; Brown v. StancUft, 80 N. Y., 627 
Erskinev. Plummer, 7 Greenl., 447; Banton v. Shorey, 77 Me., 48 
Purney v. Piercy, 4frMd., 3 2. 



154 STATUTOEY LIMIT OF £10. [ § 102. 

is a well established American doctrine that a contract 
forthexsale of annual cro'^s, fruotus industriales, is gov- 
erned by the seventeenth section;' but some of the 
English authorities hold, that where the contract calls for 
the present transfer of title, it is not a contract for the 
sale of goods, wares and merchandise, and not, therefore, 
within the seventeenth section." 

The American courts hold, also, that a contract for the 
sale of fixtures is within the seventeenth section of the 
statute." 

4. What contracts reach the statutory Umit of £10. — 
Where the sale consists of only one article, and its value 
is known, or agreed upon by the parties, no difficulty on 
this point is presented; but where the sale embraces 
several articles, each of which is of less value than ten 
pounds, the question may arise whether it reaches the 
statutory limit. A satisfactory test may be found in 
answer to the question : Was the transaction a unit, one 
entire contract, although composed of dififerent parts? 
If yea, and the aggregate value of the articles equals or 

> MarshaU v. Ferguson, 23 Cal., 65; Bull v. Griswold, 19 III., 631: 
Brioker v. Hughes, 4 Ind., 146; Dunne v. Furgeson, 1 Hayes, 540: 
Brittain v. McKay, 1 Ired., 265; Moreland v. Myall, 14 Bush, 470: 
Evans V. Roberts, 5 B. & C, 836; Jones v. Flint, 10 A. & E., 755: 
Rodwell V. PhUUps, 9 M. & W., 503. 

« HaUen v. Runder, 1 0. M. & R., 367; Mayfleld v. Wadsley, 3 B. & 
C, 357; Parker v. Staniland, 11 East, 365. 

» Ross' Appeal, 9 Pa. St., 491; Powell McAshan, 28 Mo., 70; Bost 
wick V. Leach, 3 Day, 476; Strong v. Doyle, 110 Mass., 92; Shaw v. 
Corbrey, 13 Allen, 463; Howard v. Fessenden, 14 AUen, 124; Morris, 
V. French, 106 Mass., 326; Central Branch Bank v. Fritz, 20 Kan., 
430; Long v. White, 42 Ohio St., 59; Rogers v. Cox, 96 Lid., 157; Fos- 
ter V. Mabe, 4 Ala., 403; Scoggin v. Slater, 23 Ala., 687; Dame v. 
Dame,38N. H.,439. 



§ 102. J ACCEPTANCE AND RECEIPT. 155 

exceeds ten pounds, it is within the statute ; otherwise 
not.' If, at the time of the bargain, it be uncertain 
whether the subject of the sale will reach the statutory 
limit, the sale will be held to come within the operation 
of the statute if it turn out that the value actually equals 
or exceeds ten pounds sterling." 

A contract may include a sale of goods, and also other 
matters not within the statute, as, for example, the rendi- 
tion of service. In such case, if the value of the goods 
be ten pounds or upwards, the statute wiU apply, at least 
to the goods. But whether an action can be maintained 
for the value of the services,, or other items included in 
the contract besides the goods, is a question upon which 
the authorities do not agree. One English case, at least, 
holds the affirmative;' while some American cases hold 
the negative, unless there was a separate and independent 
consideration for the services, or other thing included.* 

5. Acceptance cmd receipt. — To satisfy this alternative 
condition of the statute, two things must concur; the 
buyer must accept and actually recevoe part of the goods. 
There may be an actual receipt without an acceptance ; 
and so, also, there may be an acceptance without a re- 
ceipt. A receipt may be, and often is, evidence of 
acceptance ; but it is not conclusive, or the same thing. 

' Baldey v. Parker, 2 B. & C, 37; GUman v. HiU, 36 N. H., 318; 
Gault V. Brown, 48 N. H., 183; Brown v. HaU, 5 Lans., 177; Allard 
V. Greasert, 61 N. Y., 1; Jenness v. "WendeU, 51 N. H., 63, 67. 

' Bowman v. Coun, 8 Ind., 58; Carpenter v. Galloway, 73 Ind.,418; 
Gault V. Brown, 48 N. H., 182; Brown v. Sanborn, 81 Minn., 403; 
Hodges V. Richmond Mfg. Co., 9 E. I., 482; Watts v. Friend, 20 B. & 
C, 446; Coy v. Bailey, 6 M. & G., 193. 

« Harman v. Reeve, 35 L. J. C. P., 357; 18 C. B,, 586. 

* McMullen v. Riley, 6 Gray, 505; Irvine v. Stone, 6 Gush., 508. 



156 ACCEPTANCE AND EECEIPT. [ § 102. 

The purchaser may receive the goods for the purpose of 
•examination, that he may intelligently exercise his option 
-of acceptance or rejection.' So, also, a receipt of goods 
by a common carrier consigned to the purchaser, although 
in general a delivery to the latter, is not an acceptance 
by him ; the carrier not being his agent authorized to 
.accept the goods." 

A compliance with this condition of the statute re- 
quires a delivery of the goods, or some portion of them, 
by the vendor with the intention of vesting the right of 
possession in the vendee ; and an actual acceptance by 
the latter with the intention of taking possession as 
owner.' Acceptance and receipt by a duly authorized 
.agent is, in law, an acceptance and receipt by the princi- 
pal, and hence a compliance with the statute.* But, a 
common carrier, while an agent of the vendee to receive 

> Smith V. Hudson, 6 B. & S., 431; 34 L. J. Q. B., 145; Chintz v. 
Surey, 5 Bsp., 367; PhiUps v. BistoUi, 2 B. & C, 511; Cusao v. Robin- 
.son, 1 B. & S., 299; SOL. J. Q. B., 261; Saunders v. Topp, 4 Ex., 390; 
Stone V. Browning, 51 N Y., 211; 68 Id., 598; Brewster v. Taylor, 63 
N. Y., 587; Retniokv. Sanford, 120 Mass., 309; Bacon v. Eccles, 48 
Wis., 227; Gibbs v. Benjamin, 45 Vt., 124; Hewes v. Jordan, 39 Md., 
473; Caulkins V. Hellman, 47 N. Y., 449. 

' Rogers v. Phillips, 40 N. Y., 519; Cross v. O'DonneU, 44 N. Y., 
661; Frostbury Mining Co. v. New England Glass Co., 9 Gush., 115; 
■Grimes v. Van Fetchen, 20 Mich., 410; Loyd v. Wight, 20 Ga., 578; 
Astley V. Emery, 4 M. & G., 262; Johnson v. Dodgson, 3 M. & W., 
656; Smith v. Hudson, 6 B. & S., 431; 34 L. J. Q. B., 145; Acebal v. 
Levy, 10 Bing., 376; Maxwell v. Brown, 39 Me., 98; Hausman v. Nye, 
62Ind.,485. 

' 2 Sch. Pers. Prop., pp. 484, 500; Benj Sales (Ed. 1888), pp. 126, et 
seq., 142, et seq.\ Am. n. 151-155; Tiede Sales, §S 67-70. 

* Cutwater v. Dodge, 6 Wend., 397; Barkley v. Rensselaer R. R. Co., 
71 N. Y., 205; Snow v. Warner, 10 Met , 133; Dean v. TaUman, 105 
Mass., 443; Jones v. Mechanics' Bank, 29 Md., 387. 



§ 102. J ACCEPTANCE AJSTD RECEIPT. 15T 

the goods, is not, as we have just seen, his agent to ac- 
cept them; unless, it should be added, he is specially 
authorized to accept. 

"What acts constitute acceptance has been considered by 
the courts, and from the authorities the rule may be de- 
duced, that the exercise of ownership over the goods by 
the vendee, in whatever manner, or by whatever acts, is 
evidence of • acceptance. ' 

As to whether inspection of the goods is requisite to 
constitute acceptance there is some conflict of authority.' 
But the doctrine is established by the weight of author- 
ity, that so long as the right of rejection remains to the 
purchaser, there has not been a sufficient acceptance to 
satisfy this condition of the statute.* 

The question in regard to the actual receipt of the goods 
generally occurs, if at all, in cases where, at the time of 
the sale, the goods are in the vendor's possession. In 
these cases, generally, a transfer of the possession from 
the vendor to the vendee, or his agent, is requisite. . But, 
on the completion of the bargain, it may be agreed be- 

' Parker v. "Wallis, 5 E. & B., 21; Gray v. Davis, 10 N. Y., 385; 
Tower v. Tudhope, 37 Up. Can. Q. B., 200; Dallard v. Botts, 6 AUen 
(N. B.), 443; Pinkham v. Mattox, 53 N. H., 606; Beaumont v. Beev- 
gerie, 5 C. B , 301; Kent v. Huskinson, 3 B. & P., 233; Maberley v. 
Sheppard, 10 Bing., 99. 

» Morton v. Tibbetts, 15 Q. B., 428; 19 L. J. Q. B., 882; Currie v. 
Anderson, 2 E. & E., 593; 39 L. J. Q. B., 87; Kibble v. Gough, 38 L. 
T. (N. S.), 204; Hunt v. Hecht, 8 Ex.,~814; 32 L. J. Ex., 293; Coombs 
V, Bristol & Exeter R. E. Co , 3 H. & N., 510; 27 L. J. Ex., 401; Smith 
V. Hudson, 6 B. & S., 431; 34 L. J. Q. B., 145. 

» Brand v. Fetch, 3 Keyes, 409; Shepherd v. Pressey, 33 N. H., 49; 
Messer v. Woodman, 22 N. H., 181, 182; Gilman v. Hill, 36 N. H., 311; 
Belt V. Marriott, 9 Gill., 331; Gr'oram v. Fisher, 30 Vt, 438; Clark v. 
Tucker, 3 Sandf., 157. 



158 DELIVEEY OF POSSESSIOK. [ § 102. 

tween the parties that the vendor shall retain possession 
as the purchaser's agent, or bailee ; and this will consti- 
tute a suflBcient receipt. Or, at the time of the sale, the 
goods may be in the possession of the buyer as agent or 
bailee of the vendor ; in which case no act of receiving 
is necessary, as the vendee thereafter holds the goods as 
owner. Or, the goods at the time of the sale may be in, 
or be placed in, the possession of a third person, to hold 
as the agent or bailee of the purchaser, and this will be 
a sufficient receipt by the vendee to satisfy the statute. 
It should be noticed, however, that to render the receipt 
by a third person sufficient, he must know of and con- 
sent to the trust, as a person cannot ordinarily be made a 
bailee or trustee without his knowledge and consent, or 
by operation of law.' 

A retention of lien by the vendor, or of any control 
over the goods as vendor, is incompatible with such a 
delivery of possession, acceptance and receipt as the 
statute requires. In regard to retention of vendor's lien, 
the reasoning runs thus : Receipt implies delivery ; there 
can, therefore, be no actual receipt by the vendee untU 
delivery by the vendor; the vendor's lien is lost by 
delivery; therefore, if vendor's lien be lost there has 
been an actual receipt by the vendee, otherwise not.' 

' Bentall v. Bum, 8 B. & C, 423; Boardman v. Spooner, 13 Allen, 
853; Bassettv. Camp, 54 Vt., 232; King v. Jarman, 35 Ark., 190; 
Farina v. Home, 16 M. & W., 119; Godst v. Rose, 17 0. B., 239; 35 L. 
J. 0. P., 61; Lucas v. Dorrien, 7 Taunt., 378; Edan v. Dudfleld, 1 Q. 
B., 306; Lilliewhite v. Devereux, 15 M. & W., 285. 

» Marsh V. Rouse, 44 N. Y., 643; Knight v. Mann, 118 Mass., 448; 
Safford v. McDonough, 120 Mass., 290; Rodgers v. Jones, 139 Mass.j 
432; Messer V. Woodman, 33 N. H., 182; Kirby v. Johnson, 23 Mo., 
354; Green V. Merriam, 28 Vt., 801; Edwards v. Grand Trunk R. R. 



^ 1U2}J EARNEST, OE PAET PAYMENT. 159 

6. Ea/mest, or part payment. — One of the alternative 
conditions of the statute is, that the buyer shall "give 
something in earnest to bind the bargain, or in part pay- 
ment. ' ' The tv70 things are sometimes regarded as the 
same, but such was not the original meaning of the 
statute. Earnest binds the bargain ; or, in other words, 
renders the bargain complete and binding under the 
statute; while part payment pre-supposes, or assumes 
the existence of a bargain. The something given in ear- 
nest may be applied in payment, and thus become "part 
payment;" but, among the Eomans, and as practised in 
England at an early day, it was an overt act designed to 
express the full and final assent of the parties to the con- 
tract.* Earnest must be something of intrinsic value; 
actually passed by the buyer to the vendor, and not 
returned by him.' If part payment is relied on to satisfy 
the statute, it must be something of pecuniary value, 
actually paid and accepted ; a mere promise to pay will 
not suffice.' 

It is generally held in this country that the time of the 
part payment is immaterial, if it be made before action 
brought. But in the New York Statute of Frauds, the 
provision corresponding to the English condition under 

■Co., 54 Me., 105; Barrett v. Goddard, 3 Mason, 107; Chaplin v. 
Rogers, 1 East, 195; Elmore v. Stone, 1 Taunt., 458; Jackson v. 
Watts, 1 MoCord, 388. 

' Bracton, 145; Glanville, ch. XTV; Beach v. Owen, 5 T. R., 409; 
•Goodall V. Skelton, 2 H. BL, 316. 

' Blenkinsop v. Clayton, 7 Taunt., 597; Howe v, Hayward, 108 
Mass., 54; Noakes v. Morey, 30 Ind., 103. 

» Combs V. Bateman, 10 Barb., 573; Dow v..Worthen, 37 Vt., 108; 
Hunter v. Wetsell, 17 Hun, 135; Archer v. Zeb, 5 HiU, 205; Krohn v. 
Bautz, 68 Ind., 377; Edgerton v. Hodge, 41 Vt., 676; Hicks v. Cleve- 
land, 48 N. Y., 81; Walrath v. Ingles, 64 Barb., 265. 



160 NOTE, ETC., IN WEITING. [§ 102. 

consideration is, ' ' unless the buyer shall, at the time,, 
pay some part of the purchase money.'" In construing 
this provision, however, the courts have held that it is 
satisfied if a subsequent part payment be made for the 
express purpose of complying with the statute, and the 
contract be then re-affirmed by the parties ; that in such 
case the part payment is made "at the time," within 
the meaning of the statute.' 

While the American statutes of frauds generally, and 
in the main, are the same in substance as the English, 
ther^ may be differences in particulars and phraseology 
which will require attention in weighing and applying 
authorities. 

7. Note or memorandwm in writing. — The third alter- 
native of the statute is in these words : "Or that some 
note or memorandum in writing of the said bargain be 
made and signed by the parties to be charged by such 
contract, or their age^its thereunto lawfully authorized." 
This provision, it should be observed, was not intended 
for cases in which the parties, either in person or by their 
agents, have signed a written contract ; but it applies to 
parol contracts, only. The written " note or memoran- 
dum' ' of the contract, and the contract itself, are distinct 
things. The ' ' note or memorandum ' ' assur&es the exis- 
tence of an antecedent parol contract, of which the 
writing required is a brief note or memorandum, an 
essential under the statute to validate the parol contract. 

The principal questions arising under this alternative 

» N. Y. R. S., Part II, Title 3, Ch. VII, § 3, sub. 3. 

= Hunter v. WetseU, 57 N. Y., 375; 84N. Y., 544; Webster v. ZieUy, 
52 Barb., 483 



§ 102.] TIME OF NOTING, ETO. 161 

condition of the statute may be considered under two 
heads : 

I'irst. Time, and manner, of noting. — It is not essen- 
tial that the note or memorandum should be made at the 
same time with the contract;' and it has been held that 
where the sale was made by an agent, his authority to 
bind the principal by executing the memorandum after 
the termination of his agency for other purposes, sur- 
vives. " It is not necessary that all the terms of the con- 
tract should be noted at one time, or on one piece of 
paper; but it will suflBce if the whole contract be in sub- 
stance contained on separate pieces, and these memoranda 
make such reference to each other as to show that they 
are parts of one whole.' Where the memorandum is 
made up of two or more writings, they must either all be 
signed, or the signed papers must so refer to the unsigned 
parts that the latter may be identified by the description ;* 
and the signed paper must refer to the unsigned ; a refer- 
ence in the unsigned to the signed wiU not suffice. * Parol 

> Bird V. Munroe, 66 Me., 347; Bill v. Bament, 9M. & W., 36; Tiede. 
Sales, § 73; Benj. Sales (Ed. 1888), p. 174, et seq. 

* WiUiams v. Bacon, 2 Gray, 387. 

» Peck V. Vandemark, 99 N. Y., 39; Jelks v. Barrett, 53 Miss., 315 
Fisher v. Kuhn, 54 Miss., 480; Lernedv. Wannemacher, 9 Allen, 413 
Lee V. Mahoney, 9 Iowa, 344; Tallman v. Franklin,* 14 N. Y., 584 
Hinde v. Whitehouse, 7 East, 558; Benj. Sales (Ed. 1888), p. 174, et 
seq. ; Tiede. Sales, § 75. 

* Tiede. Sales, § 75; Peek v. North StafiEordshire R. E. Co., H. L. C, 
473-569;-Moalev.Buchanan,llGill&J.,333; Frank v.Miller, 38 Md., 
461; Farwell v. Mather, 10 Allen, 333; Hazard v. Day, 14 Allen, 494; 
Ide V. Stanton, 15 Vt., 685; Stocker v. Partridge, 3 Roberts, 193. 

' Freeport v. Bartol, 3 Greenl., 340; Brown v. Whipple, 58 N. H., 
209; Eidgway v. Ingraham, 50 Ind., 148; Johnson v. Buck, 35 N. J. 
11 



162 CONTENTS OF NOTE. [ § 102. 

evidence to connect the parts is not admissible ; ' nor is it 
admissible to show terms or stipulations not contained in 
the written memorandum ;' but parol evidence is admissi- 
ble to show that the writing is not a correct or full mem- 
orandum of the parol agreement. ' And if the reference 
contained in the signfed paper is ambiguous, parol evidence 
will be allowed to explain the ambiguity, and identify the 
document to which the reference is made ; this rule being 
in accordance with the doctrine of interpretation appli- 
cable to cases of latent ambiguity.* 

Second. What the memorandum should contain. — Stated 
generally, and in brief, the memorandum should contain, 
in substance, all the material parts of the contract, includ- 
ing the names, or a description, of both parties;' the sub- 

L., 339; Beokwith v. Talbot, 95 U. S., 289; Morton v. Dean, 13 Met., 
388; Smith v. Jones, 66 Ga., 338. 

' Hinde v. Whitehouse, 7 East, 558; Kenworthy v. Scofield, 2 B. & 
C, 945; Pierce v. Corf, L. R. 9, Q. B., 210; Rishton v. Whatmore, 8 
Ch. t)., 467; Benj. Sales (Ed. 1888), p. 174. 

' Fitzmaurice v. Bailey, 9 H, L. C, 78; Boydell v. Drummond, 11 
East, 142; Holmes v. MitoheU, 7 C. B. N. S., 361; Benj. Sales (Ed. 
1888), Am. n. p. 200. 

• Elmore v. Kingsgate, 5 B. & C, 583; Goodman v. Griffiths, 1 H. 
& N., 574; Acebal v. Levy, 10 Bing., 376; Pitts v. Beckett, 18 M & 
W., 743. 

* Eidgway v. Wharton, 6 H. L. C. , 238; Bauman v. James, 3 Ch., 508; 
Long V. Hilar, 4 C. P. D., 450; Cave v. Hastings, Q. B. D., 125; Shard- 
low V. CottereU, 18 Ch. D.. 280; 20 Ch. D., 90, C. A. 

' Cooper V. Smith, 15 East, 103; Allen v. Bennett, 3 Taunt., 169; 
Champion V. Plummer, SB. &P., 252; Lincoln, v. Erie Preserving 
Co., 132 Mass., 129; Calkinsv. Falk, 38How. Pr., 62; McEb-oy v. Leery, 
61 Md., 397; Anderson v. Harold, 10 Qhio, 399; Grafton v. Cummings, 
99 U. S., 100; Sale v. Lambert, 18 Eq. Rep., 1; Rossiter v. Miller, 46 
L. J. Ch. 228; 5 Ch. D , 648, C. A. 



§ 10 2. J CONTENTS OF NOTE. 183 

jeot matter, whicli must be correctly stated ; ' the price, 
if actually agreed upon by the parties;' the stipulations 
as to credit, and the time and place of payment, if such 
there be;' and any other terms and conditions making a 
part of the contract.* If the memorandum contains all. 
the statutory requisites, and appears as an offer, its accept- 
ance may be proved by parol in the absence of written 
evidence of the acceptance.' 

In regard to the signature of the party to be charged, 
or his authorized agent, it is sufficient for the present 
purpose to say, that this requirement of the statute has 
generally been quite liberally construed by the courts, 
where any thing has been done with the intention of sign- 
ing.' 

' Thornton v. Kempster, 5 Taunt., 786; Sari v. Bourdillon, 26 L. J. 
C. P., 78; 1 C. B. (N. S.), 188; May v. Ward, 134 Mass., 137; McElroy 
V. Buck, 35 Mich., 434; "Waterman v. Meigs, 4 Gush., 497: Penniman 
V. Hartshorn, 18 Mass., 87. 

» Ide V. Stanton, 15 Vt., 685; Smith v. Arnold, 5 Mason, 416; Phelps 
V. Stillings, 6 N. H., 505; Adams v. McMillan, 7 Port., 78; Soles v. 
• Hickman, 30 Pa. St., 180; O'Neil v. Crane, 67 Mo.. 250; Ai-giis Co. v. 
Mayor, etc., of Albany, 55 N. Y., 495. 

» Wright V. Weeks, 25 N. Y., 158; Norris v. Blair, 89 Ind., 90; WQ- 
llams V. Kobinson, 73 Me., 186; Keiete v. Myer, 61 Md., 558; Smith v. 
SheU, 82Mo.,215. 

* Riley v. Famsworth, 116 Mass., S23; Oakmau v. Rogers, ISO Mass., 
214; Peltier v. CoUins, 3 Wend., 459. 

» Warner v. Wellington, 3 Drew., 528; 25 L. J. Ch., 662; Smith v. 
Neal, 2 C. B. (N. S.), 67; 26 L. J. C. P., 143; Justice v. Lang, 43 N. T., 
493; Mason v. Dicker, 73 N. Y., 598; Old Colony R. R. Co. v. Sears, 6 
Gray., 25; Lowber v. Connit, 36 Wis., 176; Smith v. Smith, 8Blackf., 
208; DeCordon v. Smith, 9 Tex., 129; Lowrey v. Mechaffey, 10 Watts, 
887. 

« Tiede. Sales, §§79, 80; Benj. Sales (Ed. 1888), p. 204, et seq. 



164 PASSING OF TITLE. [§103. 

§ 103. Contract of sale in respect of passing title. — 

Having considered what contracts of sale are within the 
statute of frauds, and the conditions requisite to render 
such contracts ' ' good ' ' within the true meaning of the 
statute, we come now to treat of contracts of sale in the 
respect of passing property or title. The formation of a 
valid contract is one thing, and its effect when formed, 
another ; and here we dismiss the Statute of Frauds, and 
recur to common law doctrines. 

The first question demanding consideration, both on 
account of its importance and frequent occurrence, is the 
distinction between an executed and an executory contract 
of sale. This distinction has been already briefly 
noticed,' but some further attention will be given to it in 
this connection. The importance of the question appears 
from the fact that the answer may determine on whom 
the loss falls, where the subject of the sale has been lost 
or destroyed;" or decide conflicting claims upon the 
property by the creditors of the vendor and vendee;", 
and, also, in other cases sometimes arising, as where 

• Supra, § 96. 

» Martineau v. Kitching, L. R., 7 Q. B., 436; Logan v. La Mesxirier, • 
6 Moore, P. C, 116; Bugg v. Minett, 11 East, 200; Zaquey v. FumeU, 
3 Camp., 240; OUphant v. Baker, 5 Denio, 379; Gilbert v. N. Y. C. 
R. R. Co., 4 Hun, 378; Joyce v. Adams, 8 N. Y., 291 ; Pleasants v. 
Pendleton, 6 Rand., 473; Lingham v. Eggleston, 27 Mich., 324; 
Hutchinson v. Hunter, 7 Pa. St., 140; Waldo v. Belcher, 11 Ired., 
609. 

' Hanson v. Myer, 6 East, 614; Acraman v. Morris, 8 C. B., 449; 
Golder v. Ogden, 15 Pa. St., 358; Brewer v. Smith, 3 Greenl., 44; 
Weld V. Cutler, 2 Gray, 195; Huff v. Hires, 39 N. J. L., 4 ; Hale v. 
Huntley, 21 Vt., 147; Smart v. Batchelder, 51 N. H., 140; Comfort v. 
Kiersted, 26 Barb., 473; Ward v. Shaw, 7 Wend., 404; Fosdick v. 
Sohall, 99 U. S., 235. 



§ 103.] INTENTION AND DELIVEBT. 165 

there are conflicting claims between vendees touching the 
ownership of the property, or where it becomes neces- 
sary to decide upon the proper form of action for the 
recovery of the goods. ' 

The principal' rules governing the transfer, to be con- 
sidered in determining the question in cases liable to 
arise in practice, will now be noticed briefly : 

1. InUntion of the parties, — The leading rule is, the 
intention of the parties. The intention may be expressed, 
or implied from the circumstances; and when ascer- 
tained, if legal, it will be decisive of the question. On 
this point the authorities are abundant and harmonious.' 

2. Delivery. — Treating delivery as related to a trans- 
fer of title, it may be stated that an actual delivery of 
possession from the vendor to the vendee, is not requi- 
site to pass the title as between the parties, unless it was 
their intention that the title should not pass before such 
delivery. But it is quite generally held that retention of 
possession by the vendor is prima facie eYiAenae of fraud 
upon creditors and subsequent purchasers." 

' Horr V. Baker, 8 Cal., 603; Croft v. Bennett, 2 N. Y., 258 ; Kim- 
berly v. Patchin, 19 N. Y., 330; Groat v. Gile, 51 N. Y., 481; Pfistner 
V. Bird, 43 Mich., 14; Barrow v. Coles, 3 Camp., 92; Mires v. Solesby, 
2 Mod., 243; Cushmanv. Holyoke, 34 Me., 289; Devane v. Fennell, 
2 Ired., 37; Davis v. HiU, 3 N. H , 383; Strauss v. Ross, 25 Ind , 300. 

« Tiede. Sales, § 83; Benj. Sales (Ed. 1888), Am. n. pp. 239, 240; 
RusseU V. Carrington, 42 N. Y,, 118; s. c, 1 Am. Rep., 498 ; Terry v. 
Wheeler, 35 N. Y., 525; Hurd v. Cook, 75 N. Y.. 454; Hatch v. Oil 
Co., 100 IT,. S., 131; Elgee v. Cotton Cases, 22 Wall., 187 ; BeUows v. 
Wells, 36 Vt., 599; Fitch v. Burk, 38 Vt., 689; CaUagan v. Myers, 89 
111., 570; Weed v.. Boston Ice Co., 12 Allen, 377; Stone v. Peacock, 35 
Me., 388; Lester v. East, 49 Ind., 588; Fletcher v. Ingram, 46 Wis., 
201. 

'Simmons v. Swift, 5 B. & C, 857; Gilmore v. Supple, 11 P. C, 
551; Dixon v. Yates, Barn. & Ad., 313; Wade v. Moffitt, 21 111., 110. 



166 SPECIFIC GOODS, ETC. [§ 103. 

3. Ddivery without transfer of title. — The vendor 
may deliver possession to the purchaser, reserving to 
himself the title until payment of the purchase price. 
Delivery, however, without reservation of the title by 
express agreement is presumptively a waiver of prepay- 
ment, and passes title to the vendee.' 

If the vendor thus retains title, and the purchase price 
be not paid according to the agreement, he may recover 
possession of the goods.' 

The delivery of goods to a common carrier consigned 
to the vendee, is, as a rule, delivery to the vendee, and 
transfers the title to him. But where the bill of lading 
is taken by the vendor, to his own order, he reserves, 
presumptively, the title and the jus disponendi, and is at 
liberty to dispose of the goods to others.' The bill of 
lading represents the goods, and its transfer operates as 
a transfer of the same. * 

4. Sale of sjoecifio goods wnconditionally. — ^In a con- 
tract of sale of specific goods unconditionally, presump- 

' Hammet v. linneman, 48 N. Y., 399; Bowen v. Buck, 13 Pa. St., 
146; Hariow v. Ellis, 15 Gray, 229; Mixey v. Cook, 31 Me., 340. 

• Ayer v. Bartlett, 9 Pick., 156; Reed v, Upton, 10 Pick., 532; Haa- 
brouck V. Lounsbeny, 26 N. Y., 598; Brant v. Bowlby, 2 B. & Adol., 
933; Thompson v. Ray, 46 Ala., 224; Fosdick v. ShaU, 99 U. S., 250; 
Boon V. Moss, 70 N. Y., 465; Vassar v. Buxton, 86 N. C, 335 ; Fleck 
V. "Warner, 25 Kan., 493. 

• Dows V. Nat. Exch. Bank, 91 U. S., 618; St. Joze v. Indians, 1 
Wheat., 308; Hobart v. Littlefleld, 13 R. I., 341; Farmers', etc., Bank 
V. Logan, 74 N. Y., 568; Wilmshurst v. Bowker, 2 M. & G., 792; 
EUershaw v. Magniac, 6 Ex., 570. 

• Marine Bank v. Wright, 48 N. Y., 1; Bank of Rochester v. Jones, 
4N. Y., 497; Mich. Cent. R. R. Co. v. Phillips, 60 HI., 190; Schu- 
maker v. Eby, 24 Pa. St., 531; First Nat. Bank v. Bailey, 115 Mass., 
280. 



§ 10 3. J GOODS NOT SPECIFIC. 167 

tively the title passes immediately; and, according to 
American authorities, there is an immediate transfer of 
title in case the price has bepn paid, or credit expressly 
given. But where the goods are not sold on credit, pre- 
payment of price is a condition precedent to the transfer 
of title. ' It should be stated, however, that some of the 
later English cases hold, that the title passes on comple- 
tion of the contract, without prepayment of price ; but 
that the vendor may withhold possession until the price 
is paid. The American holding seems the more reasonable." 

5. Sale of specific chattels conditionally. — It is quite 
obvious that on a sale of specific chattels subject to a 
condition precedent, the title will not pass until the con- 
dition is performed. While the general doctrine thus 
stated is quite simple, and universally recognized, the 
question as to when the contract is encumbered with a 
condition precedent, has given rise to considerable dis- 
cussion, and some conflict of judicial opinion. As the 
limitation of this treatise will not permit a full examina- 
tion of the question, the reader is referred to the text- 
books hereunder named, and the authorities therein cited, 
for an exhaustive discussion of the subject." 

6. Sale of goods not specific. — Identification of the 
subject matter of. the sale is essential to the transference 
of title thereto ; and hence, where the contract is for the 
sale of a quantity of goods without reference to any par- 

'Tiede. Sales, §86; BaiTett v. Pritchard, 2 Pick., 513; Ayer v. 
Bartlett, 9 Pick., 156; Reed v. Upton, 10 Pick., 523; Fishback v. Van 
Dusen, 33 Minn., Ill; 33 Am. L. R., 506, note. 

' See Tiede. Sales, § 86. 

» Tier.e. Sales, § 87; Benj. Sales (Ed. 188^), p. 244, et seq.; Am. n., 
263, et seq.; 2 Kent Com., p. 497; 3 Soh. Pers. Prop., p. 381. 



168 GOODS NOT 8PBCIFI0. [ § 103. 

ticular lot, or of a portion of a larger bulk, no title 
passes in severalty until the goods which are to consti- 
tute the subject of the sale are identified, or selected for 
transfer. 

Thus far the authorities are substantially in acoord, 
and a few citations will suffice. ' In regard to the sale of 
an unidentified portion of a larger bulk, some authorities 
hold that, while title in severalty cannot be acquired by 
the vendee without a separation from the bulk, he may 
acquire title to a part in common with the other pro- 
prietors of the mass.' This doctrine may be accepted as 
applicable to cases where it appears that the parties 
intended a transfer of the title before a separation of the 
part from the whole. 

Y. Appropriation on sale of goods not specific. — Under 
a contract for the sale of goods not specific, in order to 
pass the title in severalty to the vendee, there must be an 
appropriation of particular goods to the contract ; and 
this must be with the consent of the vendee, express or 
implied.* 

• Foot V. Marsh, 51 N. Y., 288; Brewer v. Smith, 3 Greenl., 44; 
MerriU v. Hunnewell, 13 Pick., 213; Woods v. McGee, 7 Ohio, 467; 
Hutchinson v. Hunter, 7 Pa. St., 140; Waldo v. Belcher, 11 Ired.> 
609; Bailey v. Smith, 43 N. H., 141; Wallace v. Breeds, 13 East, 533; 
Busk V. Davis, 3 M. & S., 897. 

« Kimberly v. Patchin, 19 N. Y., 330; Hoyt v. Hartford Ins. Co., 26 
Hun, 416; Young v. Miles, 20 Wis., 615; Iron CUflfs Co. v. Buhl, 43 
Mich,. 86; Hurfl v. Hires, 89 N. J. L., 581; PhiUpsv. Ocmulgee Mills, 
55 Ga., 634. 

» Tiede. Sales, § 89; Benj. Sales (Ed. 1888), pp. 283-293, 312-314; 
Hanson v Myer, 6 East, 614; Atkinson v. Bell, 8 B. & C, 277; Moody 
V. Brown, 34 e., 107; Grove v. Brien, 8 How.. 429; Bank v. Bangs, 
103 Mass., 391, 295; Bennett v. Smith, 15 Wend., 493; Shawham v. 
Van Nast, 25 Ohio St., 490; Aldridge v. Johnson, 7 E. & B., 885; 26 



§ 104.] MISTAKE, CONSIDERATION. 169 

§ 104. Mistake, failure, and illegality of considera- 
tion. — 1. Mistake. — We have seen' that the assent of 
parties is an essential element of a valid contract ; that 
the minds of the parties must meet and assent to the 
same thing, in the same sense, at the same instant of 
time ; and consequently, that a mistake of fact in regard 
to the subject matter, or terms of the contract, in anj 
material respect, will be fatal to the validity of the con- 
tract. Or, more accurately stated, in case of such a 
mistake, no contract is made for want of the requisite 
assent of parties. 

The leading rules governing mistakes are the follow- 
ing. 

1. The mistake under consideration is one of fact, and 
not of loAO. Every person competent to contract is pre- 
sumed to know the law ; the ancient and universal rule 
being, ignoranUa juris neminem excusat. 

2. As a general rule it is only a mutual mistake that 
will render a contract void, or voidable ; but a mistake 
on one side and a fraud on the other will have the same 
effect. Where one party only acts under a mistake, the 
other party not being responsible for it, the contract is 
ordinarily enforceable. But to this rule there are excep- 
tions based on special circumstances to which the reason 
of the rule is not applicable; and, as "reason is the soul 
of the law, when the reason of any rule ceases, so does 
the law Itself." The maxim is, cessante ratione legis 
cessat ipsa leas. 

L. J. B., 396; Fragano v. Icng, 4 B. & C, 219; Krulder v. Ellison, 47 
N. Y.,'86; Alexander v. Gardner, 1 Bing., N. C, 671. 
' Supra, § 99. 



170 FAILURE OF CONSIDEEATION. [ § 104. 

3. A mistake of the character now defined will excuse 
a party from the performance of an executory contract ; 
and will also entitle him to rescind it after execution if 
he places the other party in statu quo. "And if that be 
not possible^" says Benjamin, "the deceived party must 
be content with a compensation in damages. " If he has 
paid for an article he may recover back the money, pro- 
vided he restores the article to the other party in the 
same condition, substantially, as when received by him, 
otherwise not.' 

2. Failure of oonsideraUon. — It is an elementary prin- 
ciple that a sufficient consideration is essential to a valid 
coiitract. In general a valuable consideration is requi- 
site ; but a good consideration, " such as that of blood, or 
of natural love and affection," will suffice in some cases." 
Mr. Bishop's concise and comprehensive definition of a 
consideration is, " something esteemed in law as of value, 
in exchange for which the promise in a contract is 
made;" and such a consideration only is in question 
under the head of failure. 

Cases sometimes occur in which the consideration,^ 
apparently valuable and sufficient at the time of the con- 
tract, turns out to be false or valueless, revealing a total 
failure of consideration. Money paid or deposited on 
such a contract may be recovered back." 

' Benj. Sales (Ed. 188S), pp. 346-356; Am. n., p. 356; Bishop Cont. 
(Enl. Ed ), §§ 46^-466; 693-'r06; 1 Story Eq. Jur., § 143, et seq.; Pom. 
Eq., §853, eiseg. 

' 1 Pars. Cont., p. 437, et seq.; 1 Bouv. L. Diet, " opneideration ; " 
Bishop Cont. (Enl. Ed.), § 35, et seq. 

» 1 Pars. Cont., p. 463; Bishop Cont. (Enl. Ed.), § 71; Benj. Sales 
(Ed. 1888), pp. 346-855; Am. n., p. 356; Bouv. L. Diet., " considera- 
tion,'' sub. 13. 



§ 104. J ILLEGALITY OF CONSIDEEATION. Ill 

It should be noticed, however, that if the purchaser 
gets what he bargained for, in the absence of mistake or 
fraud, he will not be permitted to allege failure of con- 
sideration, however worthless it may be, in avoidance of 
the contract.' 

If the failure of consideration be only partial, the 
buyer's right to rescind will depend upon the entirety, or 
divisibility, of the contract. If the contract be entire, 
and the buyer has not accepted, or is not willing to 
accept, a partial performance, he may reject the contract 
in toto, and recover back the price. But if he has 
accepted a partial performance, he is not at liberty to 
rescind, and must seek another remedy. If, however, 
the consideration and the agreement founded thereon are 
both divisible, consisting of several parts, and the part 
failure of consideration can be apportioned to a corre- 
sponding part of the agreement, it may be regarded and 
treated as several contracts, and the rights of the parties 
adjusted accordingly. Money paid on the failed portion 
of the agreement may be recovered back,' 

3. Illegality/ of consideration. — It is a well established 
principle that a contract founded upon a consideration, 
or requiring the performance of an act which is immoral, 
illegal, or contrary to public policy, will fall before the 
judgment of a court, either of law or equity. If the 
consideration for an indivisible promise be in part legal 
and in part illegal, the promise will be of non-effect, 
because of resting in part upon an illegal consideration 
which vitiates the whole ; but if the promise be divisible, 

' Citations last supra. 

» See authorities cited, supra. 



172 FEAUDULENT SALES. [ § 105. 

or in other words if there be two promises, the one rest- 
ing on the legal, and the other on the illegal, considera- 
tion, the former will stand and the latter fall.' 

§ 105. Fraudulent sales. — It is a well established and 
wholesome rule, that fraud renders aU contracts void- 
able. This for two reasons : first, such a contract lacks 
the assent of the deceived party, for an assent obtained 
by fraud, in contemplation of law, is no real assent ; and, 
secondly, it is against the spirit and policy of the law to 
permit the defrauding party to profit by his own wrong.' 

It is quite difficult, if not impossible, to formulate a 
definition of fraud that shall be at once sufficiently accu- 
rate and comprehensive ; and this for the reason that its 
modes and forms are multifarious, and its disguises subtle 
and specious. It will better subserve our purpose to 
point out the principal elements of such fraud as will 
avoid a contract of sale, and the rules applicable thereto. 

1. Misrepresentation, or conoeahnent, of a material 
fact. — To constitute such a fraud there must be a mis- 
representation or concealment of a material fact. 

It is not necessary that the misrepresentation be in 
words; it may be effected by acts and devices which 
create in the mind of the other party a mistaken belief 
in regard to the fact. Great skill is often exercised in 

• Bishop Cont. (Enl. Ed.), §§59, 74, 469, et seq.; 1 Pars. Cont. (7 
Ed.), pp. 456-459; Bouv. L. Diet , "consideration," sub. 11. 

»Benj. Sales (Ed. 1888), p. 360. et seq.; Bishop Cont. (Enl. Ed.), 
§§ 641, 642; Dambmann v. Schulting, 75 N. Y., 55; Rodman v. Thal- 
heimer, 7 Pa. St., 233; Smith v. Smith, 21 Pa. St., S67; Jones v. 
Emery, 40 N.H., 348. 



§ 105. J FEAUDULENT SALES. 173 

practicing deceit.' But concealment alone of a material 
fact is not necessarily fraudulent in law, however it may 
be judged in the forum of conscience ; it is only so when 
a party is bound to disclose his knowledge in regard to 
all material facts by reason of his fiduciary relation to the 
other party; or where the subordinate condition, or 
mental incapacity, of the other party demands of him 
entire frankness and scrupulous honesty." As a general 
rule, with the exceptions now stated, where an article is 
offered for sale, and is open to the inspection of the pur- 
chaser, he will not be allowed to complain that the- 
alleged defects were not pointed out to him by the 
vendor. 

There are two maxims that apply in such cases, 
namely : Caveat emptor, and simplex commendado non 
ohligat. The purchaser, in the absence of fraud on the 
part of the vendor, and with an opportunity of ascertain- 
ing the character and quality of the goods, must rely 
upon his own care and judgment.' This rule, however^ 
must be taken with the qualification that the use of any 
device by the vendor to induce the buyer to omit inquiry, 
or to divert his attention fram defects, may constitute 
fraud. 

While the maxim ca/oeat emptor requires the exercise of 
care and judgment on the part of the purchaser, there 

' Tiede. Sales, §§ 158, 164; Benj. Sales (Ed 1888), p. 361; Bishop 
Cont. (Enl. Ed.), §§ 651, 653. 

« Tiede. Sales, § 159; Bishop Cont. (Enl. Ed.), §§ 655-660; Beilj. 
Sales (Ed. 1888), p. 361; 3 Kent Com., p. 483, et seg.; Tate v. William- 
son, L. E. 3 Ch., 55; McPherson v. Watt, L. R. 3 App. Cas., 354^ 
Yosti V. Laughran, 49 Misso., 594; Harkness v. Fraser, 13 Fla., 336. 

» Tiede. Sales, § 159; Benj. Sales (Ed. 1888), p. 363; 3 Kent Com., 
p. 485. 



1T4 INTENTION TO DECEIVE. [ § 105. 

are cases holding that he may rely on a misrepresenta- 
tion without inquiry, believing it to be true, and yet 
have his action for fraud. ' These cases do not seem to 
be whoUy consistent with the general trend of authori- 
ties on the subject. 

The vendor may lawfully commend his goods, even to 
exaggeration, provided he do not make any false repre- 
sentations as to matters of fact. The mere expression of 
an opinion in regard to the qualities or value' of an article 
will not, as a rule, constitute an element of fraud ; the 
distinction in law is between the expression of an opinion 
and the statement of &faoV 

2. Intention to deoei/ve. — An essential element of a 
fraudulent sale is an intention to deceive; or, what is 
equally culpable, a reckless false statement of facts to 
induce a purchase, without knowledge of the truth or 
falsity of the statement. Fraud cannot be predicated of 
representations which the vendor honestly believes to be 
true, albeit they are false in fact. But a party has no 
moral or legal right to make representations of the truth 
or falsity of which he is ignorant; and if such repre- 

' Jones V. Eimmer, 14 Ch. D., 588, 593; Redgrave v. Hurd, 20 Ch. 
D , 1, 13; Hitchins v. Pettengill, 58 N. H., 3; Central Railway t. 
Hisch, Law Rep , 2, H. L., 99, 120; 3 Chit. Cont. (11 Am. Ed.). 1040, 
1041; Leake Cont. (3 Ed.), 380-383; Bishop Cont. (Enl. Ed.), § 655. 

' Ellis V. Andrews, 56 N. Y., 83; Bishop v. SmaU, 63 Me., 12; Som- 
ers V. Richards, 46 Vt., 170; Homer v. Perkins, 124 Mass., 431; Busch- 
man v. Cold, 53 Md., 303, 307; Sledge v. Scott, 56 Ala., 202 ; Gordon 
V. Butler, 105 U. S., 553; GrafEenstein v. Epstein, 23 Kan., 443; Tiede. 
Sales, §§ 158, 166; Bishop Cent. (Enl. Ed.), § 664 ; 3 Kent Com., pp. 
485-487. 



§ 105.] DAMAGES SUSTAINED. 175 

sentations prove false, he will be held responsible as for 
an intentional misrepresentation. ' 

3. Helicmoe •wpon the representations. — To sustain a 
charge of fraud, it must appear that the false rep- 
resentations were relied upon by the party whom they 
were intended to influence ; otherwise he could not com- 
plain of having been deceived, or defrauded, by such 
representations. It is not necessary, however, that the 
misrepresentations should have constituted the sole 
inducement to the contract ; but to sustain the -charge of 
fraud, it must appear that the false representations were 
so far influential, that without them assent to the con- 
tract would not have been given." 

4. Damiage sustained. — Another essential element in 
an actionable fraud, is the resulting damage sustained by 
the party deceived. No matter how gross the fraud, if 
no damage ensues no cause of action arises. The doc- 
trine applicable is tersely stated by Lord Croke thus : 
*' Fraud without damage, or damage without fraud, 
gives no cause of action." ' 

' Bishop Cont. (Enl. Ed ), § 661; Tiede. Sales, § 160; French v. Vin- 
ing, 102 Mass., 132; Weeks v. Buxton, 7 Vt., 67; Cowley v. Smith, 46 
N. J. L., 380; Boyd v. Browne, 6 Barr, 310; Seller v. Clelland, 2 Col., 
532; "Weir v. BeU, L. E., 3 Ex. D., 238; Mitchell v. Zimmerman, 4 
Tex , 75; Grim v. Byrd, 32 Gratt., 293; Parmlee v. Adolph, 28 Ohio 
St , 10. 

> Bishop Cont. (Enl. Ed.), §§ 653, 654 ; Tiede. .Sales, § 161 ; HuU v. 
Fields, 76 Va., 591; Winter v. Bandell, 30 Ark., 363; Gregory v. 
SchoeneU, 55 Ind., 101 ; Smith v. Hughes, 6 Q. B., 597; 2 Sch. Pers. 
Prop., p. 632. 

« 3 Bulst., 95. Tiede. Sales, § 163; Smith v. Kay, 7 H. L. Gas., 774; 
Atwood V. SmaU, 6 Clark & F., 443; Weaver v. Wallace, 9 N. J. L., 
251; Neideferv. Chastain, 71 Ind., 363; viorriaon v. Lods, 39 Cal., 
885;, Phipps v. Buckman, 30 Pa. St., 403; Hanson v. Edgerton, 29 



176 FEAUD ON VENDOR. [§105. 

5. Fraud on the vendor. — "What has now been said of 
fraudulent sales relates mainly to frauds practiced by the 
vendor upon the buyer. The latter may become the 
fraudulent party to the contract, and the former his 
victim. Frauds of the buyer are various in forms and 
modes, but all are schemes to procure from the vendor 
his goods without payment of the purchase price. In 
essence and moral quality, they constitute the crime of 
larceny in the guise of honest traffic. The effect of the 
buyer's fraud upon the contract is substantially the same 
as that of the vendor, to render it void ah 'mitio, or void- 
able.' 

The doctrine is often met with in the books, that in 
case of a fraudulent purchase the title does not pass from 
the vendor to the vendee. This is not an accurate state- 
ment of the law. A distinction should be made between 
a sale to a fraudulent purchaser, and a mere delivery of 
goods into his possession. Or, differently stated, a dis- 
tinction between a case where the owner intends to 
transfer both title and possession, and where he only 
intends to transfer the possession. In the former case 
there is a sale, however fraudulently procured ; in the 
latter not. This distinction is manifest in view of the 
effect of a transfer of the goods by the fraudulent vendee 
to a third party, a hona fide purchaser. If the vendee 
takes both title and possession, and transfers the goods 
to a hona fide purchaser before disaffirmance of the con- 
tract by the vendor, such purchaser will take a good 

N. H., 357; Young v. Hall, 4 Ga., 95; Castleman v. GrifBn, 13 Wis., 
535. 
' Tiede. Sales, g 168; Benj. Sales (Ed. 1888), p. 866. 



§ 105.] FRAUD ON TENDOE. 177 

title which he can maintain against the rights of the 
original vendor. On the contrary, if the original trans- 
feree took possession only, the vendor not intending to 
pass the title, he cannot convey a title to anybody, and 
for the sufficient reason that he has none to convey. It 
may be difficult to see, at a glance, how the defrauded 
vendor may reclaim his property from his vendee when the 
title has passed to the latter, so that he could trans- 
fer a good title to a third party. Chief Justice 
Shaw speaks to this difficulty in Hoffman v. Nolle,'' 
where he says : " It is a well established rule, that 
goods obtained by fraud in the sale, as by false 
representations, may be reclaimed by the vendor. 
This does not proceed on the ground that the property 
in the goods does not pass by the sale, but that the dis- 
honest purchaser shall not hold it against the deceived 
vendor." But when such a purchaser transfers the 
goods to a third party, a hona fide purchaser, the superior 
equity of the latter will prevail over the legal rights of 
the vendor." 

Cases sometimes occur in which a buyer purchases 
goods with the intention of not paying for them. The 
doctrine may be regarded as established by the weight of 

'6 Met., 73. 

' Benj. Sales (Ed. 1888), p. 366, et seq.; Tiede. Sales, § 168; Steven- 
son V. Newnham, 18 C. B., 385; SSL. J. C. P., 10; Pease v. Gloaheo, 
L. R., 1 P. C , SSO; Kingsford v. Merry, 11 Ex., 577; S5 L. J. Ex., 166; 
Oakes v. Turquand, L. E. 2, H. L., 3S5; Naugatuck Cutlery Co. v. Bab- 
cock, 23 Hun, 481; Van Nest v. Conover, 20 Barb., 547; Butler v. 
Hildreth, 5 Met., 49; Buckley v. Morgan, 46 Conn., 893; Dibley v, 
Sheldon, 10 Blatch., 178; Easter v. Allen, 8 Allen, 7; Pringle v. Phil- 
lips, 5 Sandf., 157; Devoe v. Brandt, 53 N. Y., 463 ; Paddon v. Tay- 
lor, 44 N. Y., 371. 
12 



178 PEAUD ON OEEDITOES. [ § 105. 

authority, that in such cases the purchase is fraudulent 
and voidable, although no false representations were 
made, or active fraud committed by the vendee. It 
should be noticed that to constitute this species of fraud 
the purchaser, at the time of the sale, must have an affirm- 
ative intention not to pay for the goods ; a mere nega- 
tive or purposeless condition of mind wiU not suffice.' 

6. Fraud on creditors. — "We have seen " that one of 
the limitations to the absolute ownership of property, is 
its liability for the satisfaction of the just debts of the 
owner; that he cannot legally alienate it by gift, or 
otherwise dispose of it, in fraud of his creditors. 

The English statutes on this subject' have been incor- 
porated, in substance, into the statutes of most, if not 
all, of the States of this country ; and they expressly 
declare void all conveyances made with intent to "hinder, 
delay, or defraud creditors." These statutes embody, 
clearly express, and re-enforce by legislative sanction, a 
principle of the common law. By virtue of this prin- 
ciple, a contract unimpeachable by the parties, may be 
void as against existing creditors. And a transfer may 
be avoided by subsequent creditors, even, where it is made 
to appear that the conveyance was made for the purpose 
of defrauding such creditors, as a voluntary conveyance 

' Tiede. Sales, § 170; Hennequin v. Naylor, 24 N. Y,, 139 ; Dow v. 
Sanborn, 3 AUen, 181; Donaldson v. Farwell, 93 U. S., 631; Wright 
V. Brown, 67 N. Y., 1 ; Farges v. Pugh, 93 N. C, 31 ; MuUiken i. 
MiUar, 12 E. I., 296. 

» Supra, % 5. 

* 13 Eliz., ch. 6, and 27 Eliz., ch. 4. 



§106.j ILLEGAL OONTEAOTS OF SALE. 179 

with the view of shielding the property from liability for 
anticipated indebtedness. ' 

Discussion of subordinate and incidental rules appli- 
cable to the species of frauds under consideration is 
necessarily omitted under the prescribed limitations of 
this treatise. The reader will find these rules fully dis- 
cussed in the text-books hereunder named, and the 
adjudications therein cited. 



*) 



§ 106. Illegal contracts of sale. — Illegality of con- 
sideration has been already noticed." Illegality of sub- 
ject-matter, purpose, or tendency, wiU now be consid- 
ered. 

The general doctrine on this subject is concisely and 
comprehensively stated by Mr. Bishop as follows : "Any 
act which is forbidden either by the common or the stat- 
utory law — whether it is •maVwrn m se, or merely malv/m' 
prohihitvm, \ indictable, or only subject to a penalty or 
forfeiture ; or however otherwise prohibited by a statute, 
or the common law — cannot be the foundation of a 
valid contract ; nor can any thing auxiliary to, or pro- 
motive of, such act. And this doctrine is the same in 
the equity tribunals as in those of law.'" 

■ Benj. Sales (Ed. 1888), p. 413, et seq.; Tiede. Sales, § 174; 2 Kent 
Com., p. 440, et seq.; 3 Pars. Cont. (7 Ed.), pp. 447, n. (g), 440-443; 
Bishop Cont. (Enl. Ed.), §§1200-1213; 2 Soh, Pars. Prop., p. 101, et 
eeq. 

» § 104, sub. 8. 

> Bishop Cont. CBnl. Ed.), § 171; and see Id., § 169, et seq.; Tiede. 
Sales, § 290, et seq.; Benj. Sales (Ed. 1888), p. 463, et seg.; 2Sch. Pers. 
Prop., p. 643, etseq.; Cannan v. Bryce, 3 B. & Aid., 179, 183, 184; 
White V. Buss, 3 Cush., 448, 450; Poplett v. Stockdale, Ryan & M. N. 
P., 837; Bartlett v. Vinor, Garth., 251; Furgussou v. Norman, 5 



180 CONDITIONS, ETC, [ § 107. 

If the contract of sale be void from any of the causes 
now mentioned, neither party can maintain an action 
upon it. Ex turpi causa, non oritur actio is the maxim 
that applies. Nor will either party be relieved from the 
effect of executing the sale ; the vendor will be at liberty 
to retain the price if it be paid, and the buyer may hold 
the goods if delivered.' 

§ 107. Conditions, and conditional sales Of condi- 
tions affecting the sale and transfer both of personal and 
real property, there are three kinds, namely : Conditions 
precedent, subsequent, and concurrent. If by the terms, 
or true construction, of the contract, the property in the 
subject of the sale does not vest in the vendee until per- 
formance of the condition, it is a concfetion precedent. 
If the condition be such that the effect of its non- 
performance will be to defeat or impair an estate or 
interest already vested, it is a condition subsequent. If, 
by the terms, or true construction, of the contract, its 
execution or performance by the parties simultaneously is 
required or intended, the condition is termed mutual or 
concurrent, and under such a condition neither party will 
be heard to complain of its non-performance by the 
other, without performance, or an offer of performance, 
on his own part. 

Bing. N. C, 76; Cook v. Phillips, 56 N. Y., 310; Hathaway v. Moran, 
44 Me., 67; Carpenter v. Beer, Comb., 346; Stanley v. Nelson, 38 Ala., 
514; Hall v. Mullin, 5 Har. & J., 190, 193; Sykes v. Beadon, 11 Ch. 
D., 170; Hotham v. East India Co., 1 Doug., 373, 377. 

> Monteflori v. Montefiori, Wm. BL, 368; Peck v. Burr, 10 N. Y., 
294; Horton v. BuflSngton, 105 Mass., 399; Moore v. Murdock, 26 
Cal., 514; Shuman v. Shuman, 37 Pa. St , 90; O'Donnell v. Sweeney, 
5 Ala., 467; Tucker v. West, 39 Ark., 886; Finn v. Donahue, 35 Conn., 
216; Ryno v. Darby, 30 N. J. Eq., 331. 



§107.] CONDITIONS, ETC. 181 

A promise, statement, or representation, made before, 
or at the time of the contract, is not necessarily a part of 
it in contemplation of law ; but may be merely an induce- 
ment, or something collateral, to the contract. If it be 
an integral and essential part of the contract, the ques- 
tion may arise whether it is a dependent, or an inde- 
pendent, covenant. If the former, it becomes in effect 
a condition precedent, or concurrent, the performance of 
which must be made or tendered by the covenantor 
before he can rightfully claim performance by the other 
party to the contract. If the latter, each party is bound 
to perform on his part without regard to performance or 
non-performance of the other party ; or, failing, he will 
be liable to an action for a breach of contract ; and non- 
performance by the other party will entitle him to dam- 
ages for the breach. 

The distinctions between the several .kinds of condi- 
tions often present difllculties in construction, which 
have produced some confusion and conflict in the adjudi-. 
cations. And, indeed, the whole subject of conditions is 
generally regarded as ' ' subtle and perplexing ; ' ' but the 
authorities hereunder cited will, it is believed, furnish the 
intelligent and discriminating student and practitioner 
with ample means of mastering all the difficulties 
involved.' 

' Tiede. Sales, § 200, et seq.; Benj. Sales (Ed. 1888), p. 507, et seq ; 
Am. n., p. 551, et seq.; 2 Sch. Pars. Prop., p. 2113, et seq.; Hickman v. 
Shimp, 109 Pa. St., 16; Eedman v. Mtna. Ins. Co., 49 Wis., 438; Fish- 
back v. VanDusen, 33 Minn., Ill, 116; Cad well v. Blake, 6 Graj^. 
403; Chapin v. School District, 35 N. H., 450; Sedden v. Prindle, 17 
Barb., 466; N. & N. W. R. B. Co. v. Jones, S Cold., 584; Jones v. 
Barkley, 2 Doug., 684-691. 



182 WAEEANTT. [§108 

§ 108. Warranty. — A warranty in the sale of goods 
is a collateral undertaking, forming a part of the contract 
by agreement of the parties, express or implied ; but in 
the absence of such agreement, it is not an essential ele- 
ment of the contract, for a sale may be complete without 
a warranty. Antecedent representations made by the 
vendor as an inducement to the buyer, but not entering 
into and forming part of the contract, are not warranties. 
On the other hand, a representation made during the 
negotiation and before the conclusion of the bargain, 
may, by the express or implied agreement of the parties, 
enter into and become a part of the contract, and a war- 
ranty.* A warranty given after the consummation of 
of the sale, without some new consideration, is void.' 

There are express, and implied, warranties. An 
express warranty is the direct statement of a material 
fact, either past or existing ; but no form of words is 
requisite to constitute a warranty, a mere affirmation 
being sufficient when it is so intended. ,For determining 
whether an affirmation amounts to a warranty, this test 
has been given : ' ' Did the vendor assume to assert a 
fact of which the buyer was ignorant, or merely give an 
opinion or judgment upon a matter of which the buyer 
could as weU judge as the vendor?" ' An implied war- 

' Benj. Sales CEd. 1888), p. 563: Tiede. Sales, § 180; Foster v. Smith, 
18 C. B., 156; Mondell v. Steele, 8 M. & W., 858; Hopkins v. Tanque- 
ray, 15 C. B., 130; 23 L. J. C. P., 162 ; McFarland v. Newman, 9 
Watts, 55. 

' Bryant v. Crosby, 40 Me., 9; James v. Bocage, 45 Ark., 284; Bloss 
v.- Kittridge, 5 Vt., 28; Summers v. Vaughn, 35 Ind., 323; Morehouse 
V. Comstock, 42 Wis., 624; Hogins v. Plympton, 11 Pick., 99. 

" Pasley v. Freeman, 3 T. E., 51; Cross v. Gardner, Garth., 90; 
Medina v. Stoughton, 1 Ld. Raym., 593; Powell v. Barham, 4 A. & 



§ 108,J SALES BY SAMPLE. 183 

ranty is one deduced by the law when the execution of 
the c'ontract, and the evidence, justify or demand it. As 
a rule, the existence of an express warranty excludes an 
implied one; but from the operation of this rule are 
excepted cases where the former relates to quality, and 
the latter to title, in which oases the co-existence of 
both in the same contract involves no inconsistency. 

It is the well established doctrine in this country, that 
in the sale by a vendor, as his own, of an article in his 
possession, there is an implied warranty of title; but 
otherwise when the property is not in his possession at 
the time of the sale. ' 

As a general rule, there is no implied warranty of 
quality in the sale of personal property, where the buyer 
has an opportunity to inspect the goods and determine 
the quality for himself. In the absence of fraud, and of 
an express warranty, each of the parties relying upon his 
own judgment, the maxim caveat emptor applies." But 
to the general rule there are some exceptions. 

1. Sales hy sample. — In a sale by sample, intended by 

E.. 473; Hahn v. Doolittle, 18 Wis., 196; Marsh v. Webber, 13 Minn., 
109; Tewksbury v. Bennett, 31 la., 83; Gifford v. Carvill, 39 Cal., 589; 
MiUer v. Young, 33 m., 354. 

" Bishop Cent. (Bnl. Ed.), § 243; 3 Kent. Com. p. 478; Williamson 
V. Sammons, 34 Ala., 691; Linton v. Porter, 31 lU., 107; Chancellor 
V. Wiggins, 4 B. Monr., 201; Sherman v. Champlatn Transp. Co., 31 
Vt., 163; Fawcett v. Osbom, 83 111., 411; Word v. Cavin, 1 Head, 506; 
Lackey v. Stouder, 2 Ind., 876; Scranton v. Qark. 89 N. Y., 230; 
Huntington V. Hall, 86 Me., 501; Tiede. Sales, § 185; Benj. Sales (Ed. 
1888), p. 564, et seq.; Am. n., p. 614. et seq. 

' Tiede. Sales, § 187; Benj. Sales ffid. 1888), p. 644, et seq. ; Bishop Cont. 
(Enl. Ed.), § 244; 2 Kent Com., p. 478, et seq.; 2 Sch. Pers. Prop., p. 
853. 



184 SALES, ETC. [ § 108. 

the parties as such, there is an implied warranty that the 
bulk of the goods shall be equal to the sample. ' 

2. Sales ly description. — ^Where the buyer has no 
opporiunity to inspect the goods, either in bulk or sample, 
and the vendor's description is positive, definite and 
exact, there is an implied warranty that the goods will 
answer the description, both in kiud and quality.' 

3. MercJiantability j fitness for a particular use. — 
In a sale by a manufacturer, there is an implied war- 
ranty that the goods are merchantable, such as are free 
from serious defects, and wiU command the ordinary 
market price. And where goods are bought for a par- 
ticular purpose or use, known to the vendor, and are 
selected by him, the buyer not relying on his own judg- 
ment, there is an implied warranty that the articles shall 
be fit for such purpose or use. ' 

4. Sales of ^provisions. — In the United States it is held, 
that in a sale of provisions for immediate domestic con- 
sumption, there is an implied warranty that the articles 

' Merriman V. Chapman, 32 Conn., 146; Webster v. Granger, 78 111., 
230; Gill v. Kauflfman, 16 Kan., 571; Gunther v. Atwell, 19 Md., 157; 
Gallagher v. "Waring, 90 Wend., 20; Barnard v. "Kellogg, 10 Wall., 
883. 

' Hastings v. Levering, 2 Pick., 315; Hogins v. Plympton, 11 Pick., 
97; Behn v. Bumess, 8 Best & Smith, 751; Wolcott v. Mount, 36 N. J. 
L., 263; Maxwell v. Lee, 37 N. W. Rep., 196. 

" Howard v. Hoey, 23 Wend., 350; Gallagher v. Waring, 9 Wend., 
30, 38; Merriam v. Field, 24 Wis., 640; McOhing v. Kelley, 31 Iowa, 
508; Mesner v. Granger, 4 Gilm., 69; CuUen v. Bimm, 37 Ohio St.. 
336; Wilcox v. Hall, 53 Ga., 635; Brantley v. Thomas, 23 Tex., 270; 
Deeming v. Foster, 42 N. H., 165; Walker v. Pue, 57 Md., 155; Port 
Carbon Iron Co. v. Groves, 68 Pa. St., 149; TUton Safe Co. v. Tis- 
dale, 48Vt.,83. 



§ 109. J PEEFOEMANCE OF CONTEAOT. 185 

are ^sound, wholesome, and fit for food.' But where 
provisions are sold as merchandise and not for immediate 
consumption by the purchaser, there is no implied war- 
ranty of fitness for use." 

5. Sale of commercial paper. — In the sale of commer- 
cial paper there is an implied warranty by the vendor 
that the. signatures are genuine, and the signers compe- 
tent to contract ; but the warranty does not extend to 
the pecuniary responsibility or solvency of the signers.' 

It may be regarded as an established doctrine, that an 
express general warranty does not cover patent defects ; 
that where such defects exist the buyer must exact a 
special warranty against them, or submit to the applica- 
tion of the rule, caveat emptor.* 

§ 109. Delivery in performance of the contract 

Delivery as related to the transfer of title has already 
been considered,' and it remains to notice briefly the 
rules governing delivery of possession in performance of 
the executory contract of sale. When the contract is 
complete, and the buyer has complied, or is ready to 
comply, with the conditions precedent or concurrent, it 
becomes the immediate duty of the vendor to deliver 

' Morehouse v. Cotnstock, 43 Wis., 636; Hoover v. Peters, 13 Mich., 
51; Van BracJilin v. Fonda, 13 Johns., 468; Divine v. McCormick, 50 
Barb ,116. 

' Moses V. Meed, 5 Denio, 617; 1 Denio, 378; Howard t. Emerson, 
110 Mass , 321; Eyder v. Neitge, 21 Minn., 70; Humphreys v. Corn- 
line, 8 Blatchf., 516; Lukens v. Freiund, 37 Kan., 664. 

» Benj. Sales (Ed. 1888), Am. n., pp. 630, 631; 1 Dan. Neg. Inst., 
§670. 

* Tiede. Sales, § 195; "Benj. Sales (Ed. 1888), pp. 567-569. 

» Supra, § 103. 



186 DELITEET. [ § 109. 

possession of the goods in performance of the contract, 
in the absence of stipulations to the contrary. 

1. Eow, cmd where, delivery to ie made. — In the 
absence of an express agreement in respect to dehvery, 
the vendor is under no obhgation to transport the goods 
to the purchaser. He is only required to hold the goods 
ready for delivery to the buyer, or his order, on demand. 
And if the vendee fails to call for the goods, and they 
remain in the possession of the vendor, he may recover 
the price in an action for goods bargained and sold." 
"When the parties have not agreed upon a place of deliv- 
ery, the goods must be held ready for delivery at the 
place where they were at the time of the sale; and 
should the vendor attempt to deliver them elsewhere he 
would incur all the attendant risk, and be liable to the 
vendee for the increased expense, if any, arising from 
such unauthorized delivery." 

Obviously, if a place of delivery be designated by the 
parties, or either of them thereto authorized by the 
contract, it cannot rightfully be made elsewhere, without 
the consent of all the parties. If the buyer is to desig- 
nate the place, and he neglects to do so within a reason- 
able time, it will excuse the vendor from making delivery, 
and enable him to maintain an action for the purchase 

' Kohl V. Lindley. 89 III., 195; Morse v. Sherman, 106 Mass., 430, 
433; Wadev. Moffit, 31 111., 110; 74 Am. Dec, 79; Frazier v. Sim- 
mons, 139 Mass., 531, 535; Turner v. Langdon, 112 Mass., 265; 
Stearns v. Washburn, 7 Gray, 187; Allingham v. O'Mahoney, 1 
Pugsl., 326. 

' Eice V. Churchill, 2 Den., 145; Brownson v. Gleason, 7 Barb., 472; 
Middlesex Co. v. Osgood, 4 Gray, 429; Barr v. Ayers, 3 Watts & S., 
299; Kraft v. Hurtz, 11 Mo., 109; Miles v. Roberta, 34 N. H., 253 ; S 
Sch. Pars. Prop., p. 400. 



§ 109.J DELIVEET. 187 

price while the goods remain in his possession." If the 
vendor is to select the place of delivery, it becomes his 
duty to give the vendee reasonable notice in advance of 
the place selected, so that delivery there will transfer the 
possession of the goods to the latter." 

2. Delivery to a common carrier. — Where the contract 
binds the vendor to send the goods to the purchaser, 
delivery to a common carrier is a compliance, it being in 
contemplation of law a delivery to the purchaser himself. 
The carrier, in such cases, is the bailee of the purchaser, 
or consignee.' But where the contract requires the seller 
to make the common carrier his own agent, or he does so 
voluntarily, transfer of possession and risk from the ven- 
dor to the Vendee wiU not take place, until the goods 
have been actually delivered by the^oarrier to the vendee 
or his agent.' 

3. Quantity to le delivered. — A contract for a specific 
quantity will not be satisfied by a tender or delivery of 
more or less; or by sending the goods bargained for 
mixed with other goods, thus compelling the buyer to 
select and separate for himself. In either case the pur- 
chaser may rightfully refuse to accept the whole. ' 

4. Time of delvvery. — In the absence of a stipulated 
time for delivery, the law prescribes a reasonable time ; 

> Hunter v. Westell, 84 N. Y., 594 ; 88 Am. Rep., 544; Smith v. 
Wheeler, 5 Gray, 309; Boyd v. Gumiison, 14 W. Va., 1 ; Brunshill v. 
Muir, 15 Up Can. Q. B., 313; Bolton v. Riddle, 85 Mich., 13. 

•Rogers V. Van Hoesen, 12 Johns,, 281; Davies v. McLean, 21 W. 
R.,264; 28 L. T. (N. S.), 113. 

» Tiede. Sales, § 95; Benj. Sales (Ed. 1888), pp. 146, 647. 

* Citations last sitpro; and see Dunlop v, Lambert, 6 Clark & F., 
600; Perkins v. Eckert, 55 Cal., 400; Hall v. Gaylor, 87 Conn., 650. 

« Benj. Sales (Ed. 1888), p. 642, et seq.; Tiede. Sales, § 101. 



188 DELIVERY. [ § 109. 

and what is a reasonable time becomes a question of fact 
for the jury, to be determined by the circumstances of 
■each case.' "Where the contract expresses the time of 
delivery, the question involved is one of construction, 
and hence a question of law for the court, and not of fact 
for the jury." 

5. Actual, constructive, and symbolical delwery . — An 
actual delivery is the "manual or bodily transfer of 
possession." Constructive delivery is the intentional 
transfer of title and possession in place of actual, by 
agreement of the parties, or where actual delivery is 
impossible. As examples of constructive delivery may 
be mentioned cases where the goods are in the actual 
possession of the vendee at the time of the sale ; where 
it is the intention of the parties that the goods shall 
remain in the possession of the vendor as bailee after the 
sale ; where the goods are in possession of a warehouse- 
man, or other third party, at the time of the sale, and 
he thereafter holds them as bailee of the 'purchaser; 
where the goods are at sea, or otherwise beyond the 
power of the vendor to make actual delivery ; where the 
goods are too ponderous for possible or convenient actuaj^ 
dehvery ; and where the subject of the sale is growing 
crops, not ripe for actual delivery. Symbolical delivery 
is the actual delivery of something as the representative 
or symbol of the property sold, as the key of the ware- 
house where the goods are stored ; the bill of sale of a 

' 2 Sch. Pers. Prop., p. 401, et seg. ; Tiede. Sales, gg 98-100; TerwU- 
Uger V. Knapp, 2 E. D. Sm., 86. 

» Benj. Sales (Ed. 1888), p. 638; Atwood v. Clark, 2 Me., 249; Cam- 
eron V. WeUs, 30 Vt., 633. 



§ 110. J vendoe's lien. 18& 

vessel and cargo at sea ; and, indeed, in all oases of im- 
possible or impracticable delivery. ' 

6. Acceptance. — It is only necessary in this connection 
to add, that acceptance is the complement of delivery, 
both being essential to a full performance of the contract. 
This subject was briefly discussed under the requirements 
of the Statute of Frauds.' The rules there stated will 
apply to acceptance in performance of the contract, and 
need not be repeated. But the reader, desiring a more 
elaborate discussion of the subject, is referred to the 
authorities hereunder cited.* 

§ 110. The vendor's lien. — A lien is a "right to 
hold goods, the property of another, in security for some 
debt, duty, or other obligation. ' ' ' The vendor of per- 
sonal property, still in his possession, has a lien upon it 
as security for the purchase price. ' But this lien may be 
waived or lost, either expressly or by implication. A 
sale on credit is a waiver. The receipt of other security 
for the payment of the purchase price is a waiver by impli- 
cation. Delivery of the goods is a waiver. A legal 
tender of payment by the vendee discharges the lien. 
And, in short, any agreement, or dealing with the goods, 

' Tiede. Sales, §§ 104, 105; Benj. Sales (Ed. 1888), p. 648; 8 Kent 
Com., p. 500; 1 Pars. Cont. (7 Ed.), p. 531; 3 Sch. Pers. Prop., p. 408, 
et seq. 

» Supra, § 102, sub. 5. 

» Tiede. Sales, ch IX; Benj. Sales (Ed. 1888), pp. 663-667. 

* Arnold v. Delano, 4 Cush. , 33, 38. 

' Tiede. Sales, § 119; Benj. Sales (Ed. 1888), p 750, et seq. ; Am. n. , p. 
773, et seq.; 1 Sch. Pers. Prop, 483, et seq.; 2 Id., p. 579, etseq ; Bouv. 
L. Diet., "lien;" And. L. Diet., "Lien." 



190 STOPPAGE IN TEANSITU. [ § 111. 

inconsistent with the retention of the lien, will operate 
as a waiver.' 

§ 111. Stoppage in transitn. — Where the vendor has 
parted with the possession of goods sold before payment 
of the purchase price, and placed them in the hands of 
a carrier, or other middlenian, for delivery to the buyer, 
if, while- the goods are in transitu, he discovers that the 
vendee has become insolvent since the sale, or, unbe- 
known to him, was insolvent at the time of the sale, 
he may retake and hold the goods as security for the 
price." " This is a right," it is well said, "which arises 
solely upon the insolvency of the buyer, and is based 
on the plain reason of justice and equity that one man's 
goods shall not be applied to the payment of another 
man's debt."* 

While the right of stoppage in transitu, and the ven- 
dor's lien, are nearly related in spirit and purpose, there 
is a distinction between them which is not always 
observed, leading to some confusion and apparent con- 
flict in the cases. We have seen ' that the vendor of 
personal property, still in his possession, has a lien upon 
it as security for the price ; but that in a sale on credit 
no hen attaches, or, as it is sometimes expressed, the lien 
is waived by imphcation. The right of stoppage in tra/n- 

' Tiede. Sales, §§ 120-133; Benj. Sales (Ed. 1888), p. 751, etseq.; Am. 
n.,p. 774. 

' Benj. Sales, p. 778, et seq.; Am. n., p. 817, et seq.; Tiede. Sales, 
§ 135, et seq.; 3 Sch. Pers. Prop., p. 586, et seq.; 3 Kent Com., p. 540, 
et seq.; Gibson v. Carruthers, 8 M. & W., 337. 

• D'Aquila v. Lambert, 3 Eden, at p. 77; s. c, Amb., 399. 

* Supra, § 110. 



§ lll.j STOPPAGE nr TEANSITU. 191 

situ, on the contrary, is not affected by the^ credit, and 
may be exercised before payment falls due.' 

The theory or principle on which the right of stoppage 
in transitu depends, and the effect of its exercise, have 
given rise to considerable discussion, and some contra- 
riety of opinion. On one theory, there is a constructive 
possession in the seller for the purpose of a lien, which is 
enforced by the stoppage ; on another, the vendor has a 
right to rescind the contract in case of insolvency, which 
right may be exercised by stoppage in transitu. The 
lien theory is favored by the weight of American author- 
ity, which seems to establish the doctrine that the exer- 
cise of the right of stoppage does not operate as a 
rescission of the contract of sale ; and that the vendee is 
afterwards entitled to the possession of the goods on 
payment or tender of the purchase price ; and this not- 
withstanding the goods may have greatly appreciated in 
value.' 

Chief J. Shaw, in Arnold v. Delam,o' speaking of the 
waiver of vendor's lien by the giving of credit, says : 
"But the law in holding that a vendor, who has thus 

' Stubbs V. Lund, 7 Mass., 453, 456; Clapp t. Peck, 55 la., 2170; 
Clapp V. Sohmer, 55 la., 273; Babcock v. BonneU, 80 N. Y., 244, 249; 
BeU V. Moss, 5 Wheat, 189; Atkins v. Colby, 20 N. H., 154; NewhaU 
V. Vargas, 13 Me., 193. 

» Babcock V. BonneU, SON. Y., 244, 250, 251; Jordan v. James, 5 
Ohio, 88; Rowley v. Bigelow, 12 Pick., 312; Patten's Appeal, 45 Pa. 
St., 151; Kemp. v. Falk, 7 App. Cas., 573, 581; Newhall v. Vargas, 13 
Me., 93; Rogers v. Thomas, 20 Conn , 53; Rucker v. Donovan, 13 
Kan., 251; Stanton V. Eager, 10 Pick., 475; Wart v. Scott, 6 Grant, 
(Ont ) 154; Grout v. Hill, 4 Gray, 361; Chandler v. FuUer, 10 Tex., 2; 
McEIroy v. Seerey, 61 Md., 389; 48 Am. Rep., 110. 

" 4 Cush., 33, 38-41. 



192 STOPPAGE IN TBANSITU. [ § 111. 

given credit for goods, waives his lien for the price, does 
so on one implied condition, which is, that the vendee 
shaU keep his credit good. If, therefore, before pay- 
ment, the vendee become bankrupt or insolvent, and the 
vendor stiU. retains the custody of the goods, or any part 
of them, or if the goods are in the hands of a carrier, or 
middleman, on their way to the'vendee, and have not yet 
got into his actual possession, and the vendor, before 
thfey do, can regain his actual possession, by a stoppage 
m transitu, then his lien is restored and he may hold the 
goods as security for the price. ' ' 

The right of stoppage, being considered just and equit- 
able, is extended to others than vendors, to persons occu- 
pying a similar position, quasi vendors. For examples, 
a factor or commission merchant, who buys for the con- 
signee;' to one who pays the price for the vendee, and 
takes the bill of lading in his own name, or has it 
assigned to him;" and the vendor of an interest in an 
executory agreement.' 

"When does the transit begin, and when does it end ? 
Answering generally, it begins when the vendor parts 
with the possession fully, so that his right of lien is gone ; 
and ends when the goods reach the actual possession of 
the vendee, or his authorized agent. The statement 
often found in the books that the transit terminates when 
the goods reach their ultimate destination is liable to 

> Newhall v. Vargas, 13 Me., 93; Seymour v. Newton, 105 Mass.^ 
275; Ilsley v. Stubbs, 9 Mass., 65, 71; Ex parte Miles, 15 Q. B. 
Div., 39. 

» Muller V. Poudir, 65 N. Y., 325, 337; Gossler v. Schepeler, 5 Daly, 
476. 

» Jenkyns v. TJsborne, 7 M. & G., 678, 698; 8 Scott, N. R., 505. 



§ 11 2. J PAYMENT AND TENUEE. 193 

mislead, and is not accurate if the expression "ultimate 
destination " be used in the sense of locality, and not 
the actual possession of the vendee. The goods may 
have reached the place of consignment, and still be in 
transit to the vendee while in the hands of a wharfinger, 
warehouseman, cartman, or other middleman.' 

§ 112. Payment and tender. — On compliance vrith 
the contract of sale by the vendor, he is entitled to pay- 
ment according to its terms, express or implied. Where 
no stipulation is made by the parties in regard to the 
mode, or time, of payment, an immediate and absolute 
payment in cash is implied by law, and obligatory upon 
the vendee. But the contract may provide for other 
kinds of payment, or a credit may be given for a stipu- 
lated time. When payment becomes due, the debtor 
cannot safely wait for demand to be made, but must seek 
the vendor or his authorized agent, and make, or tender 
payment." 

Other than money payments : 

1. Payment iy note or hill. — A payment by bill or 
note may be absolute or conditional. It is generally held 
that the debtor's own note or bill given in liquidation of 
his debt, is a conditional payment, and will not effect an 
absolute discharge of the debt until itself is paid ; unless 
it be taken by agreement of the parties as an absolute 
payment. The indebtedness of the buyer in itself gives 
the vendor an implied promise of payment, and a 

' Tiede. Sales, §§ 139-133; Benj. Sales (Ed. 1888), p. 784, et seq., Am. 
n., pp. 830-835; 3 Sch, Pers. Prop., p. 590, et seq.; Harris v. Pratt, 17 
N. Y., 349. 

' 3 Sch. Pers. Prop., p. 435; Benj. Sales (Ed. 1888), pp. 669, 670. 
13 



194: PAYMENT AND TENDEE. [§112 

promissory note only supplements the implied, unwritten, 
with an express, written, promise; it does not increase 
the obligation of the buyer, or add to the security of the 
vendor ; but the latter is at liberty to accept the written 
promise as an absolute payment and discharge of the 
debt, if he will. The transfer to the vendor by the pur- 
chaser of a npte or bill of a third party is in some cases 
an absolute, and in others only a conditional, payment. 
If payable to bearer, and transferred at the time of the 
sale without indorsement, it is prima facie an absolute 
payment; but if payable to order and transferred by 
indorsement, it will operate only as conditional payment 
unless otherwise agreed by the parties: In some of the 
States, the transfer of a negotiable biU or note by a 
debtor to his creditor for a precedent simple contract 
debt, is deemed, jprirna facie, an absolute payment or 
discharge of the debt ; but in a majority of the States 
such a transfer is held to be only a conditional payment 
in the absence of proof of a different agreement by the 
'parties. ' 

As a rule, the acceptance of a bill or note conditionally 
in payment of a debt, suspends the right of action on the 
original debt until maturity of the paper." On maturity 
the right of action revives ; and it is then optional with 
the creditor to bring his action on the paper, or on the 



' Tiede. Sales, § 144; Benj. Sales (Ed. 1888), Am. n., pp. 699, 700, 
where the holdings of the several States on this point are collated. 

' Stedman v. Gooch, 1 Bsp., 3; Griffith v. Cowen, 13 M. & W., 58; 
Black V. Zacharie, 3 How., 483; Putnam v. Lewis, 8 Johns., 389; 
Price V. Price, 16 M. & W., 231; Armstead v. Ward, 2 Pat. & H., 504; 
Phoenix Ins. Co. v. Allen, 11 Mich., 501. 



§112.] PAYMENT BT CHECK OE DEAFT. 196 

original debt. ' Should he elect the latter alternative, he 
must produce in court and surrender the paper, or so 
account for its absence as to show that the debtor wiU 
be free from liability upon it to a third party,* 

If the debtor becomes liable on the bill or note as a 
drawer or indorser, failure of the holder to exercise due 
diligence in presenting the same for payment, and giving 
notice of dishonor, will, it is generally held, discharge the 
debtor both from his liabihty on the dishonored paper, 
and on the original debt, where snch negligence results 
in loss.' 

2. Payment ly cheoh or draft. — The authorities are 
not entirely agreed upon the effect of payment by check 
or draft. Some hold that the buyer's negotiable check 
1?, prima facie payment, conditionally; and if the drawer 
has no funds in the drawee's hands to meet the check, or 
draws them out before the holder has a reasonable time 
to present the check, it will not operate as a payment, 
and the creditor may resort to his original cause (A 
action.* But if, at the time of giving the check, the 
drawer has suJHcient funds in the hands of the drawee, 
and the payee neglects for an unreasonable time to pre- 

' Bank of Ohio Valley v. Lockwood, 13 W. Va., 426; Owenson v 
Morse, 7 T. R., 50; Steadman v. Gooch, 1 Esp., 4; Price v. Price, 16 M. 
& W., 231; Tobey v. Barber, 5 Johns., 68. 

» Jones V. Savage, 6 Wend., 658; Dayton v. Trull, 23 Wend., 345; 
Raymond v. Merchant, 3 Cow., 147, 150; Alcock v. Hopkins, 6 Gush., 
484; MUler v. Lumsden, 16 111., 161; Matthews v. Dare, 20 Md., 248. 

s Smith V. MiUer, 43 N. Y., 171; s. c, 52 N. Y., 546; Betterton v. 
Koope, 3 Lee (Tenn.), 220; Phoenix Ins. Co. v. Allen, 11 Mich , 501; 
Mehlbery v. Fisher, 24 Wis., 607; Allan v. Eldred, 50 Wis., IgS; 
Dayton v. TruU, 23 Wend., 345. 

* Broughton v. SDloway, 114 Mass., 71. 



196 PAYMENT IN COUNTEEFEIT, ETC. [§112. 

sent the check, and the drawee in the meantime fails, 
the loss falls upon the creditor ; he becomes the victim of 
his own negligence, and cannot maintain an action on 
the original indebtedness.' Other cases hold that the 
creditor may recover on the original cause of action, 
unless the debtor shows that the check has been paid, or 
or that a loss has resulted from an unreasonable delay of 
the creditor in presenting the check for payment." 

3. Payment in cownterfeit^ or worthless Mils. — Coun- 
terfeit or forged billSj bank notes, or personal notes, 
given in payment, do not constitute payment, or dis- 
charge the debt. The creditor ia such case, gets no 
value, no quid pro quo. Some cases hold that the 
receiver of counterfeit or forged paper is bound to use due 
diligence in ascertaining its character, and to promptly 
return the same, or notify the other party of its charac- 
ter ; and that failing in this regard, its receipt by him will 
be deemed a valid payment. The necessity or utility of 
returning an utterly worthless piece of paper, or of noti- 
fying the other party of its character, is not obvious on 
first thought ; but in some cases, an early notice might 
enable an innocent party to obtain redress from prior 
parties.' 

' Cushman v. libbey, 15 Gray, 358; Taylor v. "WUson, 11 Met., 44; 
Hodgson V. Barrett, 33 Ohio St., 63; Barnard v. Graves, 16 Pick., 41; 
Warriner v. The People, 74 lU., 346; Mclntyre v. Kennedy, 39 Pa. St., 
448. 

« Bradford v. Fox, 38 N. Y., 389; Smith v. MiUer, 43 N. Y., 171; 
Thompson V. The Bank of British N. A., 83 N. Y., 1; Kerneyer v. 
Newbt, 14 Kan., 164; Phillips v. Bollard, 58 Ga., 356; DeGampart v. 
Brown, 38 Ark., 166. 

» Benj. Sales (Ed. 1888), Am. n., pp. 697, 698, anff cases cited; Tiede. 
Bales, S 149; 3 Pars. Cont. (7 Ed.), p. 632. 



§ 112.] APPEOPEIATION OF PAYMENTS. 197 

4. Payment in specific articles. — By agreement of the 
pai'ties, the price may be payable in specific articles. 
It is only necessary to say, that when so payable, the 
articles must be delivered in accordance with the terms 
of the contract, and in default thereof the price becomes 
payable in cash.' 

5. Payment ly mail. — ^Where the creditor authorizes 
or requests payment by mail, or other specific mode, he 
thereby appoints his own agency for the transmission of 
the funds, and assumes aU the risk attendant upon such 
mode of remittance. The obligation of the debtor wiU 
be fully discharged by sending the money as authorized 
or requested, even although it may never reach the cred- 
itor. ■■ But money sent by mail without authority of the 
creditor, or the sanction of any general usage or custom, 
is at the risk of the debtor, and if not received by the 
creditor, the debt remains uncanceled.' It has been held, 
however, that depositing the money in the postofBce, in 
an envelope properly addressed to the creditor at his 
place of business, is prima facie evidence that he 
received it.* 

6. Appropriation of payments. — Questions in regard 

' Perry v. Smith, 23 Vt., 801; Roberts v. Beatty, 2 Pen. & Watts, 
63; Church v. Feterow, 2 Pen. «& Watts, 301; Stone v. Nichols, 43 
Mich., 16. 

' Gumey v. Howe, 9 Gray, 404; Morgan v. Richardson, 13 Allen, 
410; Palmer v. Phoenix Mut. Ins. Co., 84 N. Y., 63; Townsend v. 
Henry' 9 Rich. L., 318. 

• Crane t. Pratt, 13 Gray; 348; First Nat. Bank v. McManigle, 69 
Pa. St., 156; BueU v. Chapin, 99 Mass., 596; WiUiams v. Carpenter, 
36 Ala.^! 9; Holland v. Lyns, 56 Ga., 56. 

< Huntley v. Whittier, 105 Mass., 391; Waydell v. Velie, 1 Bradf., 
377. 



198 PAYMENT ON SUNDAY. [§ 112. 

to the appropriation of payments arise where several 
debts are due from one person to another, and a payment 
is made which is insuflBcient to satisfy all. The general 
rules governing such cases may be briefly summarized. 

1. The debtor, at the time of payment, has the right 
to designate the claim to which it shall apply. This 
done, and the appropriation so made by the creditor, it 
cannot afterwards be changed by the debtor, and will 
not be changed for him by the law.- 

2. If the debtor fails to make the application where 
he has the opportunity of so doing, the creditor may 
apply the payment to any one of several legal claims at 
his option. He may apply it to a claim barred by the 
statute of limitations, but such appropriation will not 
revive the balance of the debt, if any ; to a debt against 
the payer and others ; to an unsecured debt in preference 
to one secured ; and to a debt not enforceable by reason 
of the Statute of Frauds. But he is not at liberty to 
apply it to an illegal claim ; nor to a debt absolutely void 
for usury; nor to a debt not yet due, if there be 
suflBcient indebtedness due to absorb the payment. 

3. If neither debtor nor creditor make the application, 
the law win apply the payment as justice and equity 
require, and in accordance with the probable intention of 
the parties." 

7. Payment on Svm,dm/. — A payment made and 
received on Sunday, if retained by the creditor, wUl dis- 
charge the debt.' But such payment is not as effectual 

' Benj. Sales (Ed 1888), Am. note, pp. 704, 705; Tiede. Sales, § 152; 
2 Whart. Cont. §§ 933-934; 2 Para. Cont. (7 Ed!), p. 630, et seq. 

•Johnson v. Willis, 7 Gray, 164; Lamore v. Frisbie, 42 Mich.; 186. 



§ 112.J TENDEE. 199 

for all purposes as a payment on a week day. For 
example, a partial payment on Sunday will not revive a 
debt barred by the Statute of Limitations. ' 

8. Tender. — ^While nothing but payment, or its equiv- 
alent accepted by the vendor, will discharge the buyer's 
indebtedness for the price, a valid tender will relieve him 
from liability for costs, and for subsequently accruing 
interest. The requirements of such a tender are : 

First. — It must be made in gold or silver coin, or 
United States treasury notes. But if the tender be made 
of bank notes which commonly pass current as money, 
and no objection be made by the vendor to the money 
tendered, it will be sufficient. 

Second. — The full amount due must be tendered; a 
tender of a part, if refused by the vendor, will not suf- 
fice. An exception to this rule, however, occurs where 
the vendor alone knows the exact amount due, and 
declines to inform the buyer, in which case the latter may 
tender a reasonable sum in payment, and an inconsider- 
able deficiency will not render it invalid. 

Third. — As, a rule, the money must be actually pro- 
duced and offered to the vendor or his authorized agent, 
in such a manner that the person to whom the tender is 
made may have an opportunity to examine and count it 
for himself. But its production may be waived by the 
person to whom the tender is made, or rendered imprac- 
ticable by his refusal to examine or accept it ; and in such 

' Wainnaman v. Keinman, 1 Exch., 118; Clapp v. Hale, 112 Mass., 
868; Bumgardner v. Taylor, 38 Ala., 687; Dennis v. Sharman, 31 Ga., 
607. But see Thomas v. Hunter, 39 Md., 413; and Ayers v. Bane, 39 
Iowa, 518, differing as to admission of debt by a Sunday payment. 



200 EEMEDIES OF THE TENDOE. [ § ll^i. 

case if the buyer, or his authorized agent, has the right 
amount of legal tender present, and offers to produce it 
for examination and acceptance, the tender will be suf- 
ficient and legal. 

Fourth. — The tender must be unconditional. It is a 
well settled rule that a tender with conditions imposed, 
as that the debtor shall receive a release or a receipt in 
full, or the like, is not good. But it has been held that 
where a statute makes it obligatory upon the debtor to 
give a release, it may properly be demanded where the 
tender is made;' and a note may be demanded as the con- 
dition of a tender of its payment. 

Fifth. — The tender must be kept good. If it be prop- 
erly made, and acceptance be refused, the debtor must 
thereafter have the money in readiness for the creaditor on 
his demand ; otherwise the original tender would be insuf- 
ficient. And if suit be subsequently brought upon the 
claim for which the tender was made, the money must be 
brought into court for the use of the plaintiff.' 

§ 113. Kemedies of the vendor. — ^A vendor of per- 
sonal property has several remedies for securing the pur- 
chase price, or for breach of the contract, each adapted 
to circumstances. 

1. Vendor^s lien. — As we have seen, he may have a 
lien for the purchase price upon goods sold, while they 
remain in his possession. It is only, however, where the 

' Saunders v. Frost, 5 Pick,, 270; Balme v. Wambaugh, 16 Minn., 
116. 

' Tiede Sales, § 140; Benj. Sales (Ed. 1888), Am. note, pp. 706-708; 2 
Pars. Cent., pp. 637, et seq., and 647, et seq.; 2 Sch. Pers. Prop. pp. 
428-432; Bouv. L. Diet., "Tender," And. L. Diet., "Tender." 



§ 113.] EE-SALB. 201 

property in. the goods has passed to the vendee that his 
lien attaches, for, obYiously, one cannot have a lien on 
his own property.' The lien, it should be noted, is only 
good as securitj'^ for the unpaid price, and will not hold 
for any other claim, whether one growing out of the 
same transaction, or otherwise.' 

2. Re-sale. — The vendor may re-sell the goods in the 
case of non-acceptance by the vendee, and hold the latter 
liable for any difference between the contract price and 
the sum realized on the re-sale. This right may be exer- 
cised within a reasonable time after the buyer's default. 
The vendor should notify the. buyer that he will sell 
the goods for the account of the buyer, and hold the 
latter liable for the difference between the contract price 
and the re-sale price ; and, while not absolutely essential 
to the right of re-sale, it is -prudent for the vendor to 
give notice to the buyer of the time and place of the 
intended sale, thus forestalling a'charge of unfairness in 
the transaction,* "Where the vendor elects to re-sell on 



' Sitpm, § 110. And see Tiede. Sales, 119; Benj. Sales (Ed. 
p. 730, Am. n., p. 773; 3Sch. Pers Prop., p. 556, e,t seq.; Clark v. Dra- 
per, 19 N. H., 419; Arnold v. Delano, 7 Cush., 33; Bowen v. Burk, 18 
Pa. St., 146; Carlisle v. Kinney, 66 Barb., 368; Bradley v. Michael, 1 
Ind., 551. 

■> Crommelin v. N. Y.,& Harlem R. R. Co., 4 Keyes, 90; Somes v. 
British Empire Shipping Co., 1 E. B, &E., 367; L. J. Q. B., 330; 8 H, 
L. C, 338; SOL. J. Q. B., 331. 

3 Tiede. Sales, § 334; Benj. Sales (Ed. 1888), p. 787, et seq., Am. n., 
p. 747; Lewis v. Greider, 49 Barb., 606; Dustan v. McAndrew, 44 N. 
y., 73; Mason v. Decker, 73 N. Y., 595, 599; Adams v. Mirick, 5 Serg. 
& R , 33; Saladin v. Mitchell, 45 111,, 85; Barnett v. Terry; 43 Ga., 
283; Atwood v. Lucas, 53 Me., 508; Shawhaut v. VanWest, 35 Ohio 
St., 490; HoUand v. Rea, 48 Mich,, 218; Smith v. Pettee, 70 N. Y., 13; 
Camp V. Hamlin, 55 Ga., 359; Linden v. Eldren, 49 "Wis , 305; Rosen- 



202 STOPPAGE IN TEANSITU, ETC. [ § 113. 

default of acceptance by the vendee, and notifies tlie lat- 
ter of his intention of so doing, the vendor becomes the 
agent of the buyer for the purposes of such sale, and is 
bound to the exercise of good faith and reasonable dih- 
gence to eifect a sale at the best price ; and, it has been 
held that the vendor is bouad to obey the instructions 
given him by the vendee as to the time and manner of 
sale, where he can do so without sacrificing his lien under 
the contract. If the vendor neglects to give notice to 
the buyer of the time and place of the re-sale, and there 
be evidence_ of fraud or unfairness in the transaction, the 
courts may adopt some other standard than the price 
obtained as a test of the market value of the goods, in 
determining the difference between it and the market 
price. ' 

3. Stojppage in transitu. — Another remedy of the ven- 
dor against the goods is stoppage in transitu. This rem- 
edy has already been sufficiently considered, for the 
purposes and plan of this treatise.' 

4. Reclamation. — ^We have seen that where the vendee 
purchases goods under false representations, or with an 
intention not to pay for them, he does not acquire a good 
title as against the defended vendor, who may reclaim 

baum V. Weeden, 18 Gratt., 785; Smith v. Pettee, 70 N. Y., 13, 18; 
Consinery v. Pearsall, 8 Jones & Sp., 114; Pickering v. Bardwell, 21 
Wis., 562; Brownlee v. Bolton, 44 Mich., 218. 

' Tiede. Sales, § 334;Girard v. Taggart,5 Serg. &E.,32;Chapman v. 
Ingram, 30 Wis., 290; Bickeyv. Tenbroeck, 63 Mo., 587; Haskell v. 
McHenry, 4 Cal., 411; McCombs v. MoKennan, 3 Watts & S., 219; 
Coflfman v. Hampton, 3 Watts & S.^ 399. 

« Supra, § 111. 



§ 113.J ACTIONS. 203 

the goods from the fraudulent vendee, or from any one 
other than a honafide purchaser of such vendee.' 

5. Action for refusal to recei/oe the goods. — Where the 
property in the goods has not passed to the buyer, and 
he wrongfully refuses to accept and pay for them accord- 
ing to promise, the vendor may have an action against 
the vendee, in which he will be entitled to recover the 
actual damages sustained, but not the full purchase price 
of the goods. The measure of damages generally gov- 
erning in this action, is the difference between the con- 
tract price and the market price of such goods at the 
time when the contract was broken ; and the date of 
breach is the time when the goods were to have been 
delivered.' 

6. Action for the price. — According to the weight of 
American authority, when the vendor has complied with 
the contract on his part he may regard the goods as the 
property of the buyer, notwithstanding his refusal or 
neglect to accept, and recover of him the full contract 
price.' There are some authorities which are not in 

' Supra, % 105, sub. 5. 

' Benj. Sales (Ed. 1888), pp. 708, 710, Am. n., p. 716. Tiede. Sales, 
§333; Gibbons V. United States, 8"WaU., 269; Clement, etc., Co. v. 
Meserole, 107 Mass.. 362; Band v. White Mountains E. R. Co., 40 N. 
H., 79; Young V. Merton, 27 Md., 114; Harris Mfg. Co. v. Marsh, 49 
Iowa, 11; Hayden v. Demets, 53 N. Y., 426; Danforth v. Walker, 37 
Vt., 239; Nixon v. Nixon, 21 Ohio St., 114. 

> Supra, § 109, sub. 1; Tiede. Sales, § 333; 3 Pars. Cent. (7 Ed.), p. 
210; Mason v. Decker 72 N. Y., 595, 599; Bement v. Smith, 15 Wend., 
493; Doremus v. Howard, 23 N. J. L., 390; Bridgford v. Crocker, 60 
N. Y., 627; Higgins v. Murray, 73 N. Y., 352; Nichojs v. Moore, 100 
Mass., 277; Wade v. Moffet, 21 111., 110; Bell v. Offutt, 10 Bush, 639; 
BaUentine v. Robinson, 46 Pa. St., 177, 



204 EBMBDIES OF THE VENDEE. [§114. 

harmony with the general trend of judicial opinion on 
this point. ' 

7. It is hardly necessary to add that in case the goods 
are delivered to, and accepted by, the vendee, and he 
refuses or neglects to pay for them when payment is due, 
the vendor may maintain an action against him for the 
purchase price. 

§ m. Eemedies of the vendee. — The vendee, as well 
as the vendor, has several remedies for non-performance 
or breach of the contract, each adapted to the particular 
-circumstances of the case. 

1 Action for non-delivery. — In case of failure by the 
vendor to deliver the goods in pursuance, and according 
to the terms, of his contract, the buyer has an action 
against him for damages. When the price has not been 
paid, the measure of damages will be the difference 
between the contract price and the market value at the 
time and place of dehvery.' The authorities do not agree 

' Pittsburg, etc., R. E. Co. v. Heck, 50 Ind. , 303; Indianapolis, etc., 
R. R. Co. V. Maguire, 63 Ind., 140; Fell v. MuUer, 78 Ind., 507; Moody 
v. Browe, 34 Me., 107. 

« Tiede. Sales, § 385; Ben j. Sales (Ed. 1888), p. 839, et seq., Am. n. 
p. 859; Dana v. Fielder, 13 N. Y., 40; Parsons v. Sutton, 66 N. Y., 93; 
Sleuter v. Wallbaum, 45 111., 44; Grand Tower Co. v. Phillips, 23 
Wall., 471; Bush V. Holmes, 53 Me., 417; Somersv. Wright, 115 Mass., 
292; Miles v. Miller, 13 Bush, 134; Chadwick v. Butler, 28 Mich., 849; 
Ouice V. Crenshaw, 60 Tex. 344; Gray v. Hall, 39 Kan. 704; Kribs v. 
Jones, 44 Md., 396; Gordon v. Norris, 49 N. H., 376; Rose v. Bozeman, 
41 Ala., 678; Worthen v. Wilmot, 30 Vt., 555; West v. Pritchard, 19 
Conn., 215; Behner v. Dale, 25 Ind., 433; Cannon v. Folsom, 3 Iowa, 
101; White V. Tompkins, 52 Pa. St., 3C3; Hill v. Chapman, 59 Wis., 
211; Porter v. Barrow, 3 La. An., 140; Crosby v. Watkins, 12 Cal., 85. 
And see supra, § 103. 



§ 114.] REMEDIES OF THE VENDEE. 205 

as to the measure of damages where the contract price 
has been paid. One class hold that the buyer is only- 
entitled to receive the market price at the time and place 
of delivery,' Other authorities hold that the measure of 
damages is the highest market price of the goods between 
the time of delivery and the commencement of the action. " 

2. Special damages. — In some cases the' buyer is 
entitled to special damages beyond the difference between 
the market value and the contract price. While the 
alleged loss of mere speculative profits constitutes no 
ground for the recovery of damages, profits which would 
naturally result from the possession of the goods bought, 
and the reasonable expectation of which may have been 
an inducement to the purchase, may be recovered as 
special or consequential damages; and this especially 
where the vendor knows the use for which the goods 
were bought.* 

• Cofleld V. Clark, 3 Cal., 102; Shepherd v. Hampton, 3 Wheat., 200; 
Bear v. Hamish, 3 Brewst., 116; Balto. etc., Co., v. Sewell, 36 Md., 
238; Whitft v. Salisbury, 33 Mo., 150; HUl v. Smith, 32 Vt., 433; Rose 
V. Bozeman, 41 Ala., 678; McKemiey v. Haines, 63 Me., 74; Smith v. 
Dunlap, 13111., 184; Smithhurst v. Woolston, 5 "Watts & S., 106; 
Humphreysville, etc., Co. v. Vermont etc., Co., 33 Vt., 92; Douglass v. 
McAllister, 3 Cranch, 298. 

s Clark V. Pinney, 7 Cow., 687; Arnold v. Suffolk Bank, 37 Barb., 
434; West v. Wentworth, 3 Cow., 83; Dabovich v. Emeric, 12 Cal., 171; 
Cannon V. Folsom, 3 Iowa, 101; Wgst v. Pritchard, 19 Conn., 313; 
Meyer v. Wheeler, 65 Iowa, 390; Kent v. Ginten, 33 Ind., 1; Randon 
V. Barton, 4 Tex., 389; Gilman v. Andrews, 66 Iowa, 116; Maher v. 
Riley, 17 Cal., 415. 

» Tiede Sales, § 336; Benj. Sales (Ed. 1888), p. 839, et seq., Am. n. p. 
859, et seq. ; Royalton v. Royalton, etc., Co., 14 Vt., 311; Masterton v. 
Mayor of Brooklyn, 7 Hill, 63; Cook v. Com'rs of Hamilton Co., 8 
McLean, 613; Burrell v. N. Y. etc., Co., 14 Mich,, 34; Hubbard v. 
Rowell, 51 Conn., 433; United States v. Behan, 110 U. S., 338; Nat. 



206 • BEMEDIES OF THE VENDEE [ § 114. 

3. Specific performance. — Cases of non-delivery some- 
times occur in which an action at law will not afford the 
buyer an adequate remedy ; and in such cases the court 
of equity grants relief by compelling specific performance 
of the contract by a delivery of the goods in accordance 
with its terms. For the rules governing an action for 
specific performance, the student and practitioner wU] 
consult works on equity jurisprudence. ' 

4. Retnedies for ireach of warranty. — Receipt of the 
goods by the vendee under an executory contract of sale, 
does not bar his remedies for a breach of warranty. 
There may be a breach of the warranty of title ; of the 
quality of the goods ; in not delivering goods of the same 
kind or quality as those bought ; in delivering goods that 
do not correspond with the sample, where the sale is by 
sample. In these cases the buyer has the choice of three 
remedies : First, he may, except in the case of a specific 
chattel in which the property has passed to hinj, refuse 
to accept the goods, and return them, or give notice to 
the vendor that he rejects them, and that they remain at 
the seller's risk; second, he may accept the goods and 
have his action for a breach of the warranty ; or, third, 
if he has not paid the price, and is sued therefor by the 

Filtering Oil Co. v. Citizens Ins Co., 106 N. Y., 535; Morrison v. Love- 
joy, 6 Minn , 234; Passenger v. Thorburn, 34 N. Y., 634; White v. Mil- 
ler, 7 Hun, 437; s. c. 71 N. Y., 118; s. c , 78 N. Y., 393; Flick v. 
Weatherbee, 30 Wis.,392;Bellv. Reynolds, 78 Ala., 511; Shepard v. 
Milwaukee Gas Light Co., 15 Wis., 318; Bartlett v. Blanchard, 13 
Grjiy, 439; Adams Exp. Co. v. Egbert, 36 Pa. St., 360; Fessler v. Love, 
48 Pa. St., 407; Richmond v. Dubuque, etc. R. R. Co., 40 Iowa, 364; 
s. o. 43 Iowa, 433. 
' Tiede. Sales, § 337; Benj. Sales (Ed. 1888), p. 848, Am. n. p. 862. 



§ 114.] KEMEDIES OF THE VENDEE. 207 

Vendor, he may set up the breach of warranty as a 
defense in recoupment, or as a counterclaim. ' 

In some of the States the courts hold, that in the 
absence of fraud, of l^nowledge of the defect by the ven- 
dor, or of an agreement to return, the mere breach of 
warranty does not confer that right." There is a lack of 
unanimity in the authorities on this point. 

6. Mistake and failure of consideration. — If, by rea- 
son of a mistake in regard to a material fact, the minds of 
the parties fail to meet upou the subject matter, or terms 
in an executory contract of sale, the vendee is excused 
from its performance. If the mistake be not discovered 
until after the execution of the contract, the vendee may 
then rescind by placing the other party in statu quo, and 
recover back what he has paid. And the same rule, sub- 
stantially, applies in case of a failure of consideration.' 

6. Illegal contracts of sale. — Before passing from the 
subject of remedies, it should be stated that, according to 

' Benj Sales, (Ed. 1888), p. 851, et seq., Am. n p 863, et seq.; Tie&e. 
Sales, § 197; Hoadley V. House, 33 Vt, 179; Butler v. Northumber- 
land, 50 N. H., 33; Magee v. BiUingsley, 3 Ala., 679; Voorhes v. Earl, 
12 Hill, 288; Gates v. Bliss, 43 Vt., 299; Freyman v. Kneoh';, 78 Pa. St., 
141; Douglass Axe Co. v. Gardner, 10 Gush., 88; Perrin v. Terrell, 30 
N. J. L. 454; Mandell v. Buttles, 21 Minn., 391; Northwood v. Eennic, 
3 Ont. Ap., 87 (1878); KimbaUv. Vorman, 85 Mich., 310; MuUer v. Eno, 
14 N. Y. 597; Day v. Pool, 52 N. Y., 416; Vincent v. Leland, 100 Mass., 
432. 

' Lightburn v. Cooper, 1 Dana, 273; Voorhes v. Earl, 2 Hill, 288; 
MuUer v. Eno, 14 N, Y , 597; Kase v. John, 10 Watts, 107; Walls v. 
•Gates, 6 Mo. Ap., 242. See supra, §§ 105, 107, 108, in regard to fraud, 
conditions and warranty 

' Benj. Sales (Ed. 1888), p 346, et seq., Am. n. p. 356; Tiede. Sales, § 
35; Bish. Cont. (Enl. Ed.), §g 693-714, 632; 2 Kent Com. p. 491. See 
«tt/)ra, § 104 



208 INDOKSEMENT. [§115. 

the weight of American authority, the courts will not 
grant relief to either party to an illegal contract of sale, 
whether executory or executed ; and this upon the ground 
of public policy. The vendor can retain the price if paid, 
but if unpaid he cannot maintain an action for the value 
of the goods. This just and wholesome rule is in accord- 
ance with the common law maxim : Ew turpi causa non 
oritur actio, which applies as well to a statement of 
defense as to a statement of claim. Says Lord Mansfield, in 
Montefiori V. Montefiori,'^ "no man shall set up his own 
iniquity as a defense any more than as a cause of action."" 
But English cases hold, that under an unlawful agree- 
ment remaining executory, the party paying the price or 
delivering the goods, may repudiate the transaction, and 
recover back his money or goods. The action, it is said, 
' 'is there founded, not upon the unlawful agreement, but 
upon its disaffirmance.'" To the same effect is a recent 
decision of the Supreme Court of the United States.* 

V, Indorsement. 

§ 115. There are several kinds of instruments, choses 
in action, which, contrary to our inherited common law, 
are now held in this country to be negotiable ; the title 
to, and property in which will pass from vendor to 
vendee by indorsement and delivery, or delivery alone, 
according to the tenor of the instrument. The principal 

> Wm. Bl. 363. 

' Tiede. Sales, § 393; Benj. Sales (Ed. 1888), p. 462, et seq., Am. n. 
p. 497, et seq. And see supra, § 106. 

» Taylor V. Bowers, IQ. B. D., 291, C. A.; Symons v. Hughes, 2 
Eq., 475, 479. 

* Spring Co. v. Knowlton, 13 Otto, 49. 



§ 115.J INDORSEMENT. 209 

instruments of this class are Bills of Exchange, Prom- 
issory Notes, Coupon .Bonds, Checks, Certificates of 
Deposit, Bank Notes, Certificates of Stock, Drafts, Bills 
of Credit, Circular Notes, Bills of Lading, Guarantees, 
and Letters of Credit.' 

Bills of lading and certificates of stock, however, are 
only quasi negotiable, but are generally classed -siwith 
negotiable instruments. 

Mr. Daniel, in his excellent treatise on Negotiable 
Instruments, gives this definition of such an instrument : 
' ' An instrument is called negotiable when the legal title 
to the instrument itself, and to the whole amount of 
money expressed upon its face, may be transferred from 
one to another by indorsement and delivery by the holder, 
or by delivery only. ' ' " When made payable to order, 
title passes by indorsement and delivery ; and by delivery 
without indorsement when payable to bearer in terms, or 
legal effect.' 

In order to constitute a sale and transfer of a nego- 
tiable instrument, it must have a pre-existing vitality ; 
otherwise there is nothing to sell or transfer.* 

Negotiable instruments are referred to in this connec- 
tion merely as examples of the acquisition of personal 
property by indorsement. It is not within the scope of 

' 1 Dan. Neg. Ints., pp. 1-3, 5-7, 28-31, 351, et seq., 660, et seq.; 3 
Dan. Neg. Ints., pp. 443, et seq., 456, 458, 539, 533, 638, 641, 646, 647, 
650, 651, 613, et seq. 

« 1 Dan. Neg. Ints., p. 1. 

" Edw. Bills, p. 263; 1 Dan. Neg. Inst., p. 93. 

«Edw. Bills, p. 353; 1 Dan. Neg. Inst., pp. 603, 604; Powell v. 
Waters, 8 Cow., 669; WUliams v. Storm, 3 Duer, 53; Eastman v, 
Shaw, 65 N. Y., 533. 
14 



210 ASSIGNMENT. BAILMENT. [ §§ 116, 117. 

this work to treat of such instruments, or the contract 
and effect of indorsement, in other relations and branches 
of the law. 

YI. Assignment, 

§ 116. Transfer by assignment is generally treated in 
the books as a distinct method of acquiring title to per- 
sonal property ; but in fact the term ' ' assignment ' ' is 
very comprehensive, including every kind of transfer. 
By use the term is appropriated to special transfers, 
such as an assignment for the benefit of creditors ; transfer 
of commercial paper not negotiable, and of such as is 
negotiable without indorsement ; transfer of bonds ; and 
transfers by a written instrument. But the term is not 
confined to written transfers.' 

VII. Bailment. 

§ 117. Bailment, — from the French word lailler sig- 
nifying to deliver, — ^is sometimes classed as a mode of 
acquiring title to personal property, in the third division 
now under treatment. Between this and the other modes 
of acquiring title already considered, there is the impor- 
tant distinction that in a bailment the special property 
only, at the most, passes to the bailee, . the general or 
absolute property remaining in the bailor, while in the 
other modes of transfer the full title and absolute prop- 

• Tiede Sales, § 13; 1 Dan. Neg. Inst., p. 585; 1 Bouv. L. Diet. 
" Assignment;" Edw. Bills, p. 345; 2 Sch. Pers. Prop., p. 673, et seq.; 
Williams Pers. Prop., pp. 84-86, 117, 118; Bish. Cent. (Enl. Ed.), 
§§ 1177-1189; Ball v. Chad wick, 46 111., 31; Cowles v. Eicketts, 1 Iowa, 
683; Chase v. Walters, 38 Iowa, 460; Hight v. Sackett, 34 N. Y.. 447, 
451; Perrins v. Little, 1 Green, 348; Potter v. Holland, 4 Blatchf., 210. 



§ 117.J BAILMENT. 211 

€rty, as a rule, pass to the transferee.' Generally, how- 
ever, the bailee has a right to the possession for the pur- 
poses of the bailment, and may protect it, and the thing 
bailed, against everybody except the true owner." And 
in some cases the bailee may have an action against the 
true owner for a violation of the contract, or an infringe- 
ment of the right of the former based upon his special 
property in the thing bailed.' 

The subject of bailments covers an important and 
separate branch of the law, and its discussion is not in 
place here, except in so far as it constitutes a mode of 
acquiring a special property or possessory interest in per- 
sonal property. 

' Tiede. Sales, § 3; Story Bailm., §§ 93-96; Benj. Sales (Ed. ie88.>. 
Am. n. p. 4; 2 Sch. Pars. Prop., p. 695, et seq. 

= 2 Black. Com., p. 453; Story Bailm , § 93; Bouv. L. Diet., "Bail- 
ment," sub. 5; Hurd v. West, 7 Cow., 753; White v. Basoom, 38 Vt., 
268; Chesley v. St. Clair, 1 N. H., 189; Bliss v. Sohaub, 48 Barb., 339. 

> 2 Pars. Cont., pp. 136, 127; Hickok v. Buck, 22 Vt., 149j Benjamin 
V. Stremple, 13 Dl., 466. 



212 LLMITATIONS. [§118. 



CHAPTEK X. 

LIMITATIONS. 

Section 118. History and purpose. 

119. When the period of limitation begins to run. 
130. New promise. 

§ 118. History and pnrpose. — At common law, the 
period of limitation for the commencement of actions 
upon personal claims was twenty years ; and this is still 
the law where the time has not been changed by statute. ' 
This limitation, it is thought, was based upon the pre- 
sumption of payment after the lapse of so many years, a 
presumption favored by the natural desire of honest 
debtors to pay, and the general iaclination of creditors 
to enforce payment within a reasonable time.' The com- 
mon law limitation was changed by act of Parliament, 21 
James I, c. 16, which prescribed the period of six years 
for the commencement of certain actions therein named. 
The provisions of this statute, and of the act of 9 George 
rV, 0. 14, subsequently passed, have been quite generally 
adopted in this country, and now prevail in substance in 
most of our States ; there being, however, other statu- 
tory provisions for special demands or debts. 

The history of adjudications under these statutes in 
England developes much apparent conflict of opinion ; 
but this contrariety is largely due, it is believed, to dif- 
ferent views in regard to the true theory or ground of 

■ 3 Pa,r8. Cont. (7 Ed.), p. 61, et seq.; Bish. Cont. (Enl. Ed.), § 1351, 
• See 3 Pars. Cont. (7 Ed.), at p. 61. 



§ 118.] HISTOKT AND PUBPOSB. 213 

limitation. One line of decisions is based upon the theory 
of presumption of payment, as was the common law 
limitation; the other upon the ground of impolicy in 
suffering claims to lie unsettled for a long period of time, 
and the danger of injustice in the enforcement of stale 
demands. The question of difference was, and is, in 
brief, whether statutes of limitation are statutes of pre- 
sumption, or of repose. The two views lead to quite 
different results, and account for the conflict of authority. 
If the lapse of time simply raises a presumption of pay- 
ment, it is neutralized by whatever will rebut the pre- 
sumption ; and anything will have this effect which im- 
plies, or amounts to an acknowledgment, that the debt 
has not been paid or satisfied. As to what acknowledg- 
ment, under this theory, is sufiicient to take a case out 
of the Statute of Limitations, Lord Momsfield, in Tru- 
mcm v. J^'enton,' says : " The slightest acknowledgment 
has been held sufiicient, as saying ' prove your debt, and 
I will pay you ; ' ' I am ready to account, but nothing is 
due you.' And much slighter acknowledgments than 
these will take a case out of the statute." But if the 
Statute of Limitations be a statute of repose, it remains 
a bar to the enforcement of a claim within its provisions, 
unless the debtor voluntarily renounces its benefit, and 
makes a new promise to pay the old debt. 

The course of adjudications by the English courts 
under these statutes, is somewhat remarkable. The 
early decisions adopted the theory of repose, but soon 
the theory of presumption obtained, and continued 
through a long line of adjudications. This view, how- 

' Cowper, 548. 



214 WHEN LIMITATION BEGINS. [§119. 

ever, gradually . yielded to the first, which is now the 
prevailing doctrine both in England and the United 

States. ' 

§ 119. When the period of limitation begins to run. 

— This may be governed by the wording of the particular 
statute in question in a given case ; but as a general rule 
the limitation begins to run when the right of action 
accrues. It is then only that the reason of the limita- 
tion applies, whether the theory of presumption, or of 
repose, be adopted as the basis of the statute." 

The period of limitation once begun, continues to run, 
as a general rule, notwithstanding the subsequent occur- 
rence of some disability which did not exist at the com- 
mencement of the action, and which, had it then existed, 
would have postponed the running of the statute until 
removal of the disability.' 

To the general rule governing the time when the stat- 
ute begins to run, there are certain exceptions.- By 
the statute of James, above referred to, it is provided in 
substance, that if the plaintiff, at the time the action 

' 3 Pars. Cont. (7 Ed.), p. 63; Bish. Cont. (Enl. Ed.), § 1351; 2 Soh. 
Pers. Prop., p. 687. For English statutes on this subject, see Goodeve 
Mod. L. Pers. Prop., p. S71, et seq. 

' 8 Pars. Cont. (7 Ed.), pp. 90-94; Bish. Cont. (Enl. Ed.), §§ 1354- 
1355; 2 Sch. Pers. Prop., p. 680; Jones v. Jones, 91 Ind., 378; Vc- 
Michael v. Carlyle, 53 Wis , 504; Wittersheim v. Lady Carlisle, 1 M. 
& W., 533; Fryer v. Roe, 12 C. B., 437; 22 Eng. L. & Eq., 440; Bell v. 
Lamprey, 57 N. H., 168. 

» 3 Pars. Cont. (7 Ed.), p. 95; Harris v. MoGovern, 99 U. S., 161; 
People v. Gordon, 82 111., 435; Hunton v. Nichols, 55 Tex., 217; Kist- 
ler V. Hereth, 75 Ind., 177; HoweU v. Young, 5 B. & C, 259; Craw- 
ford V. Gaulden, 33Ga., 173; Waters v. Thanet, 2 Q. B., 757; Leonard 
V. Pitney, 5 Wend., 30. 



§ 119. J NEW PE0MI8B. 215 

accrues, be an infant, feme covert, non compos mentis, 
imprisoned, or beyond the seas, he may bring his action 
at any time within the prescribed period of limitation 
after the disability ceases. Substantially like provisions 
exist in the statutes of the several States of our Union, 
with some variety of details. And it is held, that if 
several disabilities co-exist when the right of action 
accrues, the statute does not begin to run until all are 
removed. But if only one exists where the cause of 
action accrues, other disabilities arfsing afterwards can- 
not be tacked to the first, so as to extend the time of 
limitation. ' 

Absence of the defendant from the jurisdiction of the 
State, will also create a disability, and postpone the run- 
ning of the statute against the plaintiflf until such disa- 
bility ceases." 

The expression in the English statute "beyond the 
seas, ' ' or similar substituted phrases, are used in some of 
the American statutes, and the courts have not fully 
agreed in their construction. Some construe such phrases 
to mean beyond the limits of the United States, while 
others hold, that beyond the State or jurisdiction where 
the action is tried, will satisfy the statutes." 

§ 120. New promise. — A new promise, either in fact or 
by operation of law, will take a case out of the statute, 

■ 3 Pars. Cont. (7 Ed.), p. 94, et seq.; 3 Sch. Pers. Prop. pp. 689, 
690; Deinarest v. Wynkoop, 3 Johns. Ch., 129; Jackson v. Johnson, 5 
Cow., 74; Butler v. Howe, 13 Me., 397; Jackson v. Wheat, 18 Johns., 
40; Eager v. Commonwealth, 4 Mass., 183; Dease v, Jones, 33 Miss., 
133; Scott V. Haddock, 11 Ga., 358. 

' 3 Pars. Cont. (7 Ed.), p. 96, et seq.; 3 Sch. Pers. Prop. p. 690. 

• 3 Pars. Cont. (7 Ed.), p. 99. 



216 NEW PEOMI8E. § 120. J 

revive a claim already barred, and extend the time of 
limitation when made before its expiration. . In either 
case a new, or extended, limitation begins to run from 
the making of the new promise, of the same duration as 
that of the original period. Otherwise stated, the new 
promise, whether made by the debtor in fact, or for him 
by operation of law, as by part payment, establishes a 
new initial point for the period of limitation.' 

By the English statute, and the statutes in most of our 
States, a new promise eflfeotual to take a case out of t]ie 
statute must be in writing. 

There is not entire uniformity in the authorities upon 
the question, — ^What will constitute a new promise? The 
contrariety may be due in part to differences in the statu- 
tory provisions on the subject. Eliminating from the 
discussion the conflict, or apparent conflict in adjudica- 
tions resulting from diversity of statutes, there are certain 
rules which may be considered as established by the 
weight of authority. 

1. There must be either an express promise, or an 
acknowledgment of an existing iadebtedness so expressed, 
and under such circumstances as to give it the meaning, 
and therefore the force and effect of a new promise.' 
The rule laid down by Story J. in Bell v. Morrison,' is, 
that an acknowledgment sufficient to remove the bar of 
the statute, must be an unequivocal and positive recog- 

1 Bish. Cont. (Enl. Ed.), g§ 1359-1365; 3 Sch. Pers. Prop. pp. 691-694; 
3 Pars. Cont. (7 Ed.), p. 80, et s.eq. 

' Tanner v. Smart, 6 B. & C, 603; Morrell v. Frith, 3 M. & W., 405; 
Hart V. Rendergast, 14 M. & W., 746. 

• i Peters, 363. 



§ 120. J NEW PKOMISB. 217 

nition of an existing debt, which the party is liable and 
willing to pay. And to the same effect are many other 
^American authorities. ' 

2. It is not necessary that the acknowledgment should 
be of any particular amount. If there be an admission 
of a legal debt, and of a liability " to pay it, evidence is 
admissible to show the amount." 

3. An acknowledgment of a general indebtedness, 
merely, will not suffice; it must be broad enough to 
include the specific debt in question, and yet sufficiently 
precise and definite to indicate unmistakably such debt. ' 

4r. We have seen that an acknowledgment, effectual to 
remove the bar of the statute, must be equivalent to a 
new promise. It follows that an acknowledgment, al- 
though in other respects complete, which is so guarded 
and qualified by the maker as to negative a promise, or 
which cannot be fairly construed into a promise, wiU not 
suffice.* 

' Piirdy V. Austin, 3 Wend., 187; Allen v. Webster, 15 Wend., 284; 
Stafford v. Bryan, 2 Paige, 45; Loomis v. Decker, 1 Daly, 186; Cham- 
bers V. Garland, 3 Green, G. (la.), 333; Stookett v. Sasscer, 8^d., 374; 
Pritchard v. Howell, 1 Wis., 131; Moore v. Bank of Columbia, 6 Pet., 
86; Guier v, Pearce, 2 Browne (Pa.), 35; Young v. Monpoey, 2 Bailey 
(S. C), 278. 

' Dickinson v. Hatfield, 1 Moody & Rob., 141; Hazlebaker v. 
Beeves, 13 Pa. St., 364; Dinsmore v. Dinsmore, 21 Me., 433; Chelsyn v. 
Dalby, 4 Young & C, 238; Barnard v. Bartholomew, 23 Pick., 291; 
Davis V. Steiner, 14 Pa. St., 275; Hale v. Hale, 4 Humph., 183; Thomp- 
son V. French, 10 Yerg., 458. 

' Moore v. Hyman, 13 Ired., 373; Buckingham v. Smith, 23 Conn., 
453; Dawson V. King, 20 Md., 443; Stafford v. Bryan, 3 Wend., 532; 
Clark V. Dutcher, 9 Cow., 674. 

* Tanner v. Smart, 6 B. & C. , 609 ; Mitchell v. Selman, 5 Md. , , 376 ; 
Dajiforth v. Culver, 11 Johns., 146; Creuse v. Defiganier, 10 Bosw., 



218 PAET PAYMENT. [§120. 

5. Part payment of a debt will, as a rule, take it out 
of. the statute. The fact of payment is an acknowledg- 
ment of an existing indebtedness, and on such acknowl- 
edgment the law raises a promise of payment. ' But it 
must appear that the payment is made only as a part of 
a larger debt ; for in the absence of conclusive testimony, 
it will not be deemed an admission of any more indebted- 
ness than the sum paid." 

6. The Statute of Limitations affects the remedy only ; 
it does not discharge the debt, but simply bars an action 
upon it after the lapse of the statutory limitation." Hence 
it follows logically that, while the remedy by action is 
gone with the lapse of the limitation, a lien or security 
for the debt is not lost by the running of the statute ; 
and to such effect is the weight of judicial authority.' 

132; Lawrence V. Hopkins, 13 Johns., 288; Brown v. State Bank, 10 
Ark., 134; Martin v. Broach, 6 Ga.. 21; Conway v. Reyburn, 22 Ark., 
390; Arey v. Stephenson, 11 Ired. L., 86; Bobbins v. Farley, 3 Strobh., 
348. 

' 3 Pars. Cont., p. 80, et seq.\ 3 Sch. Pers. Prop., pp. 691-694; Bish. 
Cont. (Enl. Ed.), § 1363; Whipple v. Stevens, 2 Foster, 319; Baxter v. 
Penniman, 8 Mass., 134; Bodger y. Arch, 28 Eng. L. & Eq., 464; Bank 
of Utica V. Ballou, 49 N. Y., 155; Walker v. Wait, 50 Vt., 668; 
Cuoully V. Hernandez, 103 U. S., 105; Engman v. Immel, 59 Wis., 
249; Ghck v. Crist, 37 Ohio St., 388; Buxton v. Edwards, 134 Mass., 
567. 

^ Tippets V. Heane, Cromp. M, & R , 353; Linsell v. Bonsor, SBing., 
N. C, 341; Waugh v. Cope, 6 M. & W., 834; Hodge v. Macauley, 35 
Vt., 316; Pickett Y. King, 34 Barb., 193; Lock v. Wilson, 9 Heisk., 
784, 10 Heisk., 441; Harris v. Howard, 56 Vt., 695. 

» 3 Pars. Cont., pp. 100, 101; 3 Sch. Pers. Prop , p. 693. 

* Spears Y. Hartley, 3 Esp., 81; Williams v. Jones, 13 East, 489; 
Higgins V. Scott, 3 B. & Ad., 413; Mayor of N. Y. V. Colgate, 2 Duer., 
1; s. c, 12 N. Y., 140; Alexander v. Whipple, 45 N. H., 503; Pratt v. 
Huggins, 29 Barb., 377. 



§ 120.] NEW CONSIDEEATIOM. 219 

7. No new consideration is requisite to validate a new 
promise, whether it be a promise made in fact by the 
debtor, or one made for him by operation ef law. As 
the debt itself is not paid or discharged by the running 
of the statute, the original consideration will sustain the 
new promise.' The renewal of a debt barred by the 
statute, so far as the necessity of a new consideration to 
sustain a new promise is concerned, must not be con- 
founded with the voluntary release of a debt by the 
creditor for a sufficient consideration, or under seal with- 
out consideration in fact, in which case the debt itself is 
discharged. A new promise, founded on a new and suf- 
ficient consideration, may create a new contract, obliging 
the debtor to pay the old debt ; but this contract will not 
rest upon the original consideration as in case of limita- 
tion, for that consideration died with the original obliga- 
tion of which it formed the basis." 

There are some other incidental rules of minor import- 
ance pertaining to this topic, which cannot be noticed 
under the limitations of this treatise ; but the foregoing 
outline view of the general principles governing the sub- 
ject, Avill, it is believed, furnish a sufficient guide to the 
student and the practitioner. 

' Bish. Cont. (Enl. Ed.), §§ 1360, 1361. 

' See Bish. Cont. (Enl. Ed ), § 1360, in connection with§§ 95-99; also 
Hale V. Rice, 134 Mass., 292; Dunham v. Johnson, 135 Mass , 310; 
Valentine v. Foster, 1 Met., 520; Montgomery v. Lampton, 9 Met., 
Ky., 519; Warren v. Whitney, S4 Me., 561; Snevily v. Read, 9 Watts, 
396. 



220 iifsuKAJsroE; definition, eto. [§121. 

CHAPTEE XI. 

INSURANCE. 

Section 131. Definition and terms employed. 

123. Nature, and form, of the contract. 
133. Classes of policies. 

124. Consummation of the contract. 

125. Subject-matter of the contract. 

136. Insurable interest. 

137. Warranties ; representations ; statements. 

128. Special provisions of the contract. 

129. Mutual insurance. 

§ 121. Definition, and terms employed. — The risk 
or policy of insurance, being a species of incorporeal per- 
sonal property, is entitled to recognition in this treatise; 
tout for a fuU discussion of the subject in all its details, 
reference must be had to works specially devoted to in- 
surance law. 

Insurance is, in brief, a contract of indemnity against 
a loss which may arise on the occurrence of some event. 
It may provide for the payment of a specified sum in 
case of loss, as in marine and fire insurance contracts ; or 
for the payment of the stipulated value of the articles 
insured, as provided in what are termed "valued policies" 
in fire insurance ; thus putting the party insured in as 
good a condition as he would have been had no loss 
occurred. Or, as in "open" or non- valued fire insur- 
ance contracts, the provision for indemnity may be only 
for the repayment of expenses incurred, and payment for 
the lost property at its market value at the commence- 
ment of the risk. In either case the insurer takes upon 



§ 122.] NATTJEE AND FOEM OF CONTEAOT. 221 

Mmself certain risks to ■which the insured would other- 
wise be exposed ; and hence the contract of insurance is 
like in character and effect to a bond of indenanity, or 
the guaranty of a debt.' 

The party undertaking to make the indemnity is called 
the insv/rer or assurer; the party indemnified, the insured 
or assv/red ; the consideration of the contract is called the 
premium; the instrument embodying the contract is 
termed the policy; the events and causes of loss insured 
against are named rishs or perils; and the property or 
rights of the insured, in respect of which he is liable to 
loss, constitutes the svhject-Tnatter of the insurance, or 
insurable interest.* 

% 132. Nature, and form, of the contract. — It is a 

personal contract, and does not run with the subject mat- 
ter of the insurance, unless by force of special stipulations 
which are not usual or legitimate elements of the contract 
itself.' "Whatever may be the kind or form of insurance, 
the object and intent of the contract is indemnity, as 
shown in the last section, supra. Whether the contract 
provides for the payment of a fixed sum on the occur- 
rence of a certain event, as in the case of life and marine 
insurance, and of valued policies in fire insurance; or 
simply guarantees indemnity for loss, whatever it may 
be, within the limitations and conditions of the contract, 

' Phillips Ins., p. 1; May Ins., §§ 1, 3, 8; Williams Pers. Prop., p. 
175; 1 Sch. Pers. Prop., p. 677; Bouv. L. Diet. "Insurance;" Lucena 
V. Crawford, 2 Bos. & Pul., N. R., 800. 

' Citations last, supra. 

» May Ins. § 6; Wilson v. Hill, 3 Met. (Mass.), 66; Disbrow v. Jones, 
Harr. (Mich ), Ch. 48; Carpenter v. Providence, Wash. Ins. Co., 16 
Pet., 495;Sadler8' Company v. Babcock, 2 Atk., 554. 



222 NATURE AND FORM OF OONTEACT. [ § 122 

as in the case of open or non-valued policies ; the prin- 
ciple is the same, the distinction between the different 
kinds and forms of contract being only in the measure, 
and mode of determining the amount of indemnity in case 
of loss. ' In the further discussion of the subject, there- 
fore, the different kinds of insurance, mutual excepted, 
will not be treated separately. Mutual insurance has 
some peculiar features which are pointed out in a subse- 
; quent section.' 

lie-insurcmce is an indemnity to the insurer against a 
loss from a risk already assumed by him. The insurer 
by a contract with another party becomes the insured 
against loss on a risk for which he is the insurer. The 
new contracting party undertakes in reference to the 
first insurer, what the latter has undertaken in reference 
to the party insured by him, and subject to like rights, 
duties and obligations.'- 

The original insured remains liable on his contract with 
the party insured by him ; there being no privity of con- 
tract between the latter and the re-insurer, he has no 
claim upon him in case of loss.* If a loss occur the 
reinsured may have an action against the rein- 
surer, without first paying the loss to the original 
insured ; and to maintain the action he must prove his 

' May Ins., § 7. 

« § 129. 

a May Ins. §§ 9, 11; 1 Sch. Pers. Prop., p. 686; 3 Kent Com., p. 279; 1 
Phillips Ins., §§78 a, 404. 

* 1 Sch. Pers. Prop., p. 688; 3 Kent Com., p. 279; Bowery Fire Ins. 
Co. V. N. Y. Ins. Co., 17 Wend., 359; Philadelphia Ins. Co. v. Wash- 
ington Ins. Co., 23 Pa. St., 250; Eagle Ins. Co. v. Lafayette Ins. Co., 
9 Ind. 443. 



§ 122.J NATURE AND FORM OF CONTRACT. 223 

interest in the subject matter, and the fact and amount 
of loss, as the original insured must have proved them 
against him ; and he is entitled to the same defenses that 
are available to the original insurer on the first contract. ' 

Double insurance means two or more insurances on the 
same risk, and the same interest. But, as the insured is 
only entitled to indemnity, he can recover no more than 
enough for that purpose in case of loss. He may, how- 
ever, recover his whole loss of any one of the insurers ; 
and the one paying the loss will have a claim for contri- 
bution against the other insurers for their respective pro- 
portions of the amount paid ; the several insurers holding 
substantially the relation to each other of co-sureties, 
with the like rights, duties, and obligations.' The amount 
of recovery against any one of the co-insurers is now 
quite generally limited in the contract to such proportion 
of the loss as the amount insured by him bears to the 
aggregate amount of insurance.' 

The form of the contract is not essential. If, as a 
whole, on a fair and reasonable interpretation, it imports 
an insurance, it will stand, however informal and inarti- 
ficial in structure. Written insurance contracts, termed 
policies, are quite generally in use, and are advisable in 

' May Ins. § 11; 3 Kent Com., p. 279; New York Mar. Ins. Co. v. 
Prot. Ins. Co , 1 Story (C. C. Rep.), 458; Eagle Ins. Co. v Lafayette 
Ins. Co., 9 Ind., 443; Hone v. Mut Safety Ins. Co., 1 Sandf., 137. 

« May Ins., § 13; 1 Sch. Pers. Prop., pp. 688, 689; 3 Kent Com , pp. 
381, 382; Lucas v. Jefferson Ins. Go., 6 Cow., 635; Peoria Marine & 
jTire Ins. Co. v. Lewis, 18 111., 553; Merrick v. Germania Fire Ins. Co., 
54 Pa. St., 377; Baltimore Fire Ins. Co. v. Lovey, 20 Md., 20; Gordon 
V. London Assurance Co., 1 Burr., 492. 

' Citations last, supra. 



'^24: CLASSES OF POLICIES. [§123, 

all oases ; but, on the weight of authority, an oral con- 
tract may be valid when not contrary to statute. ' 

§ 1-<J3. Classes of policies There are three classes 

of policies; valued, and open; wager a,nd interest / and 
-time and voyage. 

A valued policy is one in which the value of the prop- 
erty insured, and the sum to be paid in case of loss, are 
fixed by the terms of the contract ; and in an action on 
the policy by the insured, when the loss is total, no proof 
on these points dehors the written contract is requisite or 
admissible. And if the insurance be upon several articles 
of equal value at a stipulated aggregate valuation, the 
insured will recover for the loss of one the. proportion 
which it bears to the whole." 

An open policy is one in which the value, and damages 
in case of loss, are not fixed by the policy, but left open 
to be proved, or otherwise determined by the parties, 
which determination is called adjustment of the loss.' 
The same policy, it should be noticed, may be open as to 
one or more articles insured, and valued as to others.* 

' May Ins., § 14, et seq.; 1 Sch. Pers. Prop , p. 680; Flaud. Fire Ins., 
62, 63; Commercial, etc., Ins. Co. v. Union Mufe Ins. Co., 19 How., 
S18; Davenport v. Peoria, etc., Ins. Co., 17 Iowa, 376; Baptist Church. 
V. Brooklyn Ins. Co., 19 N. Y., 305. 

' May Ins , §§ 30, 31; 1 Sch. Pers. Prop., pp. 680, 681. 

• Citations last, supra. And see Alsop v. Com. Ins. Co., 1 Sumner, 
451; Carson v. Marine Ins. Co., 2 Wash. C. C, 468; Haight v. De la 
Cour, 3 Camp., 319; Feise v. Aquilar, 3 Taunt., 506; Holmes v. 
Charlestown Mut. Fire Ins. Co., 10 Met. (Mass.), 211; Cushman v. 
Nojth Western Ins. Co., 34 Me., 487; Harris v. Eagle Ins. Co., 5 
Joh:is., 368. 

* May Ins., § 33; Post v. Hampshire Mut. Ins. Co., 12 Mass., 555; 
Cushman v. North Western Ins. Co., 34 Me., 487. 



§ 123. J CLASSES OF POLICIES. 225 

A wager policy is one in which the insured has no in- 
terest, nothing insurable, and hence runs no risk ; it is, 
in other words, a gambling contract. The want of in- 
terest appears by the terms of the policy, indicated by 
such expressions as, '•'• without further froof of interest ^ 
■ than the policy,'''' '■'■ 'interest or no interest,'''' and the like. 

Wager policies are prohibited in England, and such 
clauses as those just quoted are held as conclusive proof 
that the contract is a wager. But in this country it has 
been held that these clauses are only prima facie evidence, 
and are apen to explanation. As to whether wager con- 
tracts are enforceable the authorities in this country are 
not in full agreement.' But the better opinion, in accord- 
ance with sound morality and the demands of public 
policy, is against the enforcement of such contracts, 
however christened, or in whatever guise they may ap- 
pear. 

Mr. Bishop in his late work on Contracts, uses this 
language : ' 'And on a just view of things, a judge would 
better serve the state, and more adorn his office, to go 
round with blacking and brush shining the boots of the 
officers of his court, than to sit on the bench enforcing a 
wager." ' 

An interest policy is one in which, by its terms, the 
insured has an interest in the subject matter of the insur- 

' Winchester v. Nutter, 53 N. H., 507; Ball v. Gilbert, 13 Met., 395, 
899; Wilkinson v. Tousley, 16 Minn., 399; HiU v. Kidd, 43 Cal., 615 ; 
Merchants' Savings, etc. , Co. v. Goodrich, 75 111. , 554; Boughner v. 
Meyer, 5 Colo., 71; Gridley v. Dorn, 57 Cal., 78. 

' Bish Oont. (Enl. Ed.), § 531. 



226 CONSUMMATION OF CONTRACT. [ § 124. 

ance, and hence a risk constituting the basis for indem- 
nity in case of loss. ' 

A time policy, as its name indicates, is one in which 
the duration of the risk is fixed by definite periods of 
time. 

A voyage policy is one in -which the duration of the 
risk is determined by geographical limits, as from New 
York to Glasgow, and is applicable, also, to transporta- 
tion by land as well as by water." 

§ 124. Consummation of the contract. — As a general 
rule, delivery of a written contract, whether a specialty 
or a simple contract, is essential to its completion and 
validity. Otherwise stated, if the parties intend to 
reduce the agreement to writing, it will not take effect 
until delivery of the intended written instrument. ' There 
is, however, authority for saying that there are excep- 
tions to the general rule ; that parties may be bound by 
an agreement, if perfect in all other respects, even where 
it is thereafter to be reduced to writing, in the absence of 
a stipulation to the contrary. But the fact that the par- 
ties do intend a reduction of their agreement to writing, 
will be regarded as strong evidence that they did not con- 
sider the unwritten negotiations as constituting a com- 
plete' and binding contract.* 

Insurance contracts, more frequently than most others, 

' May Ins., § 33; 3 Kent Com., pp. 371, 277, 378. 

« May Ins. § 34; Boehem v Combe, 2 M. & S., 172. 

» Bisli. Cont. (Enl. Ed.), § 349, and cases cited. 

« Waldo's Pollock Cont., pp. 41, 43; Pratt v. Railroad Co., 21 N. Y., 
805:Blaney V. Hoke, 14 Ohio St., 293; Bell v. OflEutt, 10 Bush, 632; 
Blight V. Ashley, 1 Pet. C. C, 15; Wharton v. btoughtenburgh, 35 
N. J Eq., 266; Paige v. Fullerton Woolen Co., 27 Vt., 485; Ridgway 
v.. Wharton, 6 H. L. C, 238, 364, 368; Lyman v. Robinson, 14 A]len, 



§124.J CONSTJMMATION OF CONTEACT. 227 

fall within the exception to the general rule ; and this 
may be due to the character of these contracts, and the 
machinery of insurance companies and their agencies. 
"Where negotiations for insurance have been bad, the ques- 
tion sometimes arises whether such negotiations have 
resulted in an agreement binding upon the parties ; and 
in some cases this question is not readily solved. The 
test applied by the courts is : Have the parties come to a 
definite agreement upon all the elements and terms of 
the contract, so that nothing remains to be done, but to 
fiU up and deliver the policy by the insurers, and to pay 
the premium by the insured? If yea, the contract is con- 
summated, in the absence of a stipulation by the parties, 
and of a law, making delivery of the policy essential to 
the validity of the agreement ; if nay, the contract is not 
completed.' Where the terms are all agreed upon by 
the parties, the liability of the insurers may become fixed 
before the issuance of the policy, so that the insured will 
be entitled ro recover for a loss happening in the interim ; 
and if the insurers refuse to issue a policy in pursuance 
of the agreement, when the rights and interests of the 
insured require it, a court of equity will compel its issu- 
ance." 

243, 354; Brown t. Railroad Co., 44 N. Y., 79, 86; Methudy v. Ross, 10 
Mo. App., 101, 106. 

' May Ins. § 44; Hallook v. Commercial Ins. Co., 3 Dutch. (N. J.), 
368; 8. c, 3 Dutch. (N. J), 645; Flint v. Ohio Ins. Co., 8 Ohio, 501: 
Am, Home Ins. Co, v. Patterson, 38 Ind., 17; Xenos v. Markham, 8 
Law Repts. (H. L.), 396; Kelly v. Commonwealth Ins. Co., 10 Bosw., 
83; Com Mut. Marine Ins. Co. v. Union Mut. Ins. Co., 19 How., 318; 
New England, etc , Ins. Co. v. Robinson, 35 Ind., 536; Davenport v. 
Peoria, etc., Ins. Co., 17 Iowa, 376. 

' May Ins., § 45; Kohne v. Ins. Co. of North America, 1 Wash. (U. 



2iJ8 8UBJECT-MATTEE OF CONTRACT. [ § 125 

When the negotiations are conducted by written cor- 
respondence through the mail, the time when the contract 
is consummated so as to bind both parties has been much 
discussed, and developed some contrariety of judicial 
opinion. The same rule that governs other contracts 
thus negotiated, and which is fully treated in works 
specially devoted to the' subject of contracts, applies to 
insurance negotiations and contracts as well ; and there 
is, therefore, no call for considering the question in this 
connection. 

Where delivery of the policy is essential to the con- 
summation of a contract, the question occurs : What 
constitutes delivery? Obviously, an actual manual trans- 
fer from one party to the other will constitute a delivery ; 
but this is not a necessary formality. It has been well 
said that the ' ' delivery may be by any act intended to 
signify that the instrument shall have present validity. ' ' * 
The question of delivery is often one of intention." 

Mr. Justice Dodderidge, in his Sheppard's Touchstone, 
quaintly defines delivery thus : ' ' Delivery is either 
actual, i. e. , by doing something and saying nothing; 
or else verbal, i. e. , by saying something and doing noth- 
ing ; or it may be by both ; and either of these may 
make a good delivery and a perfect deed." ' 

V 

§ 125. Subject-matter of the contract. — The field of 

S. C. C), 93; Goodall v. N. E. Mut. Fire Ins. Co., 5 Fost. (N. H.), 169; 
and see, also, citations last supra. 

' Hallock V. Com. Ins. Co., 2 Dutch. (JSt. J.), 268; s. c, 3 Dutch. (N. 
J.), 645. 

' May Ins., § 60; Whittaker v. Farmers' Union Ins. Co., 29 Barb., 
313; Kentucky Mut. Co. v. Jenks, 5 Ind., 96. 

'IShep. Touch., 57. 



§ 12 6. J INSURABLE INTEREST. 229 

insurable property is very broad. Any property which 
is the subject of lawful ownership or use, and wbich is 
lawfully employed, may be insured. The doctrine is 
well stated by May as follows : "Whatever has an ap- 
preciable pecuniary value, and is subject to loss or deteri- 
oration, or of which one may be deprived, or which he 
may fail to realize, whereby his pecuniary interest is or 
may be prejudiced, may properly constitute the subject 
matter of insurance." ' This statement, it will be seen, 
embraces every species of property, real, personal, and 
mixed; corporeal and incorporeal; in esse ov in posse; 
and in possession or expectancy. The doctrine thus 
broadly and comprehensively stated is fully sustained by 
the authorities." 

§ 126. Insurable interest. — That the insured must 
have some insurable interest in the subject matter of the 
insurance is a cardinal and well established principle. 
"Without such interest the contract would be essentially a 
gambling contract, and hence invalid.' This rule, it 
should be understood, applies only to an insurance for the 
benefit of a party to the, contract; a person having no 
insurable interest in the subject-matter may insure in his 
own name for the benefit of the true owner of the prop- 
erty.* It is not easy to define with accuracy what con- 

' May Ins., §72. 

» May Ins., §§ 71-73; Wilson v. HiU, 3 Met., 66; Carpenter v. Prov. 
Wash. Ins. Co., 16 Pet., 495; Ellicott v. United States Ins. Co., 8 Gill 
& Johns. rMd.), 166; Carter v. Boehm, 3 Burr., 1095; Lucena v. Craw- 
ford, 2 New Rep., 301. 

» Supra, § 123 ; May Ins.. g§ 33, 74 ; 1 Sch. Pers. Prop., p. 682 ; 1 
Bouv. L. Diet. "Insurable Interest;" 3 Kent Com., p 262. 

« 1 Sch. Pers. Prop , p. 684 ; Flaud, Fire Ins., 378 ; Turner v. .Bur- 



230 INSUEABLE INTEREST. [ § 126, 

stitutes an insurable interest, so as to relieve the question 
from doubt in all cases that may arise ; but it may suffice 
for practical purposes in general to say, that the insured 
must have such an interest in the subject-matter as, in 
case of its destruction, or injury, he would suffer pecuni- 
ary damage. Within this rule the property, title, or in- 
terest, of the insured in or to the subject-matter of the 
insurance may be absolute or qualified, general or special, 
legal or equitable, existent or potential, present or pros- 
pective. Numerous examples are furnished in the books. ' 
From a legitimate practical application of this doctrine, 
it logically follows that there may be separate insurable 
interests in the same property, as the legal, and equitable, 
title or interests; and in other oases embraced in the 
principle stated." 

To entitle the insured to recover on his contract, he 
must have had an interest in the subject-matter at the 
time when it was consummated, and also when the loss 
occurred." It follows that alienation of the insured prop- 
rows, 8 Wend., 144; Work v. Merchants', etc., Fire Ins. Co., 11 Gush , 
271. 

' May Ins., § 76, et seq.; 3 Kent Com., p. 263, et seq.; 1 Sch. Pers. 
Prop., p. 682, et seq.; Bouv. L. Diet. " Insurable Interest." 

« May Ins., § 81 et seq.; 1 Sch. Pers. Prop., pp. 683-684; Strong v. 
Manuf. Ins. Co., 10 Pick., 40; Columbian Ins. Co. v. Lawrence, 3 
Pet., 735; Allen v. Franklin Ins. Co., 9 How. Pr. Eep., 501; Franklin 
Ins. Co. V. Findlay, 6 Whart. (Pa.), 483; Niblo v. North Am. Ins. Co., 
1 Sandf., 551 ; Fletcher v. Commonwealth Ins. Co., 18 Pick., 419; 
Tongue v. Nutwell, 31 Md., 803; Franklin Ins. Co. v. Drake, 3 B. Mon. 
(Ky.), 47; Abbott v. Hampden Mut. Fire Ins. Co., 30 Me , 414; Harris 
V. York Mut. Ins. Co., 50 Pa. St., 341; and many other eases, illustrat- 
ing the application of the doctrine, too numerous for citation. 

* May Ins., § 100; 1 Sch. Pers. Prop., p. 685; Howard v. Albany 
Ins. Co., 3 Denio, 301; Fowler v. Indemnity Ins. Co., 26 N. Y., 422 ; 



§ 127.] WAEEANTIES AND EEPEESENTATIONS. 231 

erty after insurance, continued until occurrence of the 
loss, will bar a recovery by the party insured ; and it has. 
been held that alienation of title will have this effect, 
even although the insured should regain title and hold it 
at the time of the loss.' But the soundness of this 
holding may well be doubted, as it has been on high 
authority." 

Modern policies quite generally, if not in all cases, 
contain stipulations in regard to the assignment of the 
policy, and the alienation of the subject-matter of insur- 
ance ; and these stipulations, as construed by the courts, 
determine the rights of the respective parties. 

§ 127. Warranties, aud representations. — State-, 
ments, provisos, conditions, by-laws, and stipulations of 
various kinds, when found in the policy and expressly 
made part of it, become warranties, and are so held and 
treated^ by the courts. A warranty, it is held, is an agree- 
ment in the nature of a condition precedent, and must be 
strictly complied with.' The existence or non-existence 
of a warranty will not depend in any case upon a par- 
ticular form of words ; but any statement or stipulation, 
upon the literal truth or fulfillment of which it is appar- 
ent that the parties intended to rest the validity of the 

Lynch v. Dalzell, 3 Bro. P. C, 492; Sadler's Co. v. Babcock, 3 Atk., 
534. 

' Cockerell v. Cincinnati Ins. Co., 16 Ohio, 148. 

' May Ins., §§ 101, 265, and cases there cited; Worthington v. Bearse, 
13 AUen, 883; Hooper v. Hudson Eiver Ins. Co., 17 N. Y., 434, 436 ; 
West Branch Ins Co. v. Helfenstein, 40 Pa. St., 289. 

» Daniels V. Hudson River Fire Ins. Co., 12 Cush., 416; Ripley v. 
Mma. Fire-Ins. Co., 30 N. Y., 136; Campbell v. N. E Mut. Life Ins. 
Co., 98 Mass., 381; May Ins., § 156, et seq.; 3 Kent Com., p. 289; 1 
Sch. Pers. Prop., pp. 686-8S8. 



232 WAEEANTIES AND EEPEESENTATIONS. [ § 127. 

contract, will constitute a warranty. ' And whether the 
fact stated or stipulation made be material to the risk, or 
otherwise, will not affect the question of warranty.' 

Of warranties there are two classes, affirmatwe, and 
promissory. The former concern the present, being such 
as affirm the existence or non-existence of some fact at 
the time of insurance ; while the latter look to the future, 
requiring something to be done or omitted by the insured 
during the continuance of the risk. A breach of either 
will avoid the contract.' 

A representation is defined as " a statement incidental 
to the contract, relative to some fact having reference 
thereto, and upon the faith of which the contract is en- 
tered into. ' ' ' The difference between a warranty and a 
representation is, in brief, this : the former enters into 
and becomes an essential part of the contract, while the 
latter is a statement incidental or collateral to the con- 
tract. If an affirmative representation be material to 
the risk, and substantially false, the contract cannot be 
enforced ; and the breach of a material promissory repre- 
sentation will have the same effect. But, as already 
stated, under warranties the question of materiality does' 
not arise ; they must be strictly and literally complied 

' Citations last supra; and Westfall v. Hudson River Fire Ins. Co., 
2 Duer, 490, 494; Kingsley v. N. E. Mut. Fire Ins. Co., 8 Cush., 393. 

« Sayles v. North Western Ins. Co.. 8 Curtis (U. S. C. C), 612; New 
Castle Fire Ins. Co. v. McMorran, 3 Dow. P. C, 255; Witherell v. 
Marine Ins. Co., 49 Me., 200; Pawson v. Watson, Cowp., 785; Ander- 
son V. Fitzgerald, 24 Eng. L. & Eq., 1; 4 H. of L. Cas., 484. 

' Citations Hupra; and Borradaile v. Hunter, 5 M. & G., 639; Jen- 
nings V. Chenango Co. Mut. Ins. Co., 2 Denio, 75; Stout v. City Fire 
Ins. Co., 12 Iowa, 371. ;, 

' May Ins., § 181. 



§ 127.] WAEEAHTIES AND EEPEESENTATIONS. 233 

with, whether material or immaterial to the risk ; while 
a substantial compliance with a representation in such 
particulars as may reasonably be supposed to have influ- 
enced the insurers in consummating the contract, will 
suffice. ' 

Eepresentations, like warranties, are of two kinds, 
affirmative and promissory. The former are allegations 
of facts existing at the time the contract is made ; the 
latter are statements or promises in regard to matters in 
the future during the term of insurance, which may affect 
the risk." The representations of the insured should be 
full, as well as true. That is, every fact material to the 
risk which is known to the insured, and which he believes, 
or has reason to believe, is material must be disclosed. 
A failure in this respect, termed in the law of insurance 
concealment, will be treated as a fraudulent suppression 
of the truth, and invalidate the contract. And facts 
material to the risk, if called for by the insurer, must be 
disclosed by the insured in his application, even though 
he do not think them material ; and when expressly made 
part of the contract, the representations, whether volun- 
tary or in response to questions, become warranties. ' 

' May Ins., §§ 181-184; 1 Sch. Pers. Prop., pp. 686-688; 3 Kent Com., 
p 2'^2, et seq.; Daniels v. Hudson Eiver Fire Ins. Co., 13 Cush., 416; 
Campbell V. N. E. Mut. Life Ins. Co., 98 Mass., 381; Nicol v. Am. 
Ins. Co., 3 Wood & M. (U. S. C ),'529; Wainwright v. Blapd, 3 Mad. 
& Rob., 481; b. c. 1 Mees. & W., 33; Abbott v. Howard, Hayes (Irish), 
381; Kimball v. Mtna, Ins. Co., 9 AUen, 540; Tyler v. ^tna Ins. Co., 
13 Wend., 507; Protection Jns. Co. v, Harmer, 3 Ohio St., 453; Insur- 
ance Co. V. Chase, 5 Wall., 509; Tesson v. Atlantic Mut. Ins, Co., 40 
Mo., 83; Mut. Ins. Co. v. Dale, 18 Md., 26; Gates v. Madison Co. Mut. 
Ins. Co., 5 N. Y., 469. 

'May Ins., §183. 

• May Ins., § 300 et seq.; Lindeneau v. Desborough, 3 Man. & Ry,, 



234 SPECIAL PEOVISIONS OF THE CONTEACl. [ § 128. 

§ 128. Special proTisions of the contract. — Modern 
insurance policies contain numerous provisions, and have 
become so complicated in their structure that a full under- 
standing and proper construction of them often requires 
considerable legal acumen, and careful study. The prac- 
tice of accepting them without intelligent examination, or 
competent legal advice, has been the subject of judicial 
animadversion. In Woodbury Savings Banh v. Charter 
Oak Ins. Co.,^ it was said in substance by the court, that 
before executing almost any other instrument of equal 
perplexity, the parties would deem it necessary to take 
the advice of counsel ; that questions frequently arise as 
to the proper construction of the terms used, which 
divide the opinion of the most learned jurists. 

For a discussion of the special provisions of insurance 
policies separately, and in detail, reference must be had 
to works specially devoted to the law of insurance ; only 
the classes, and the general rules governing each class, 
can be noticed in this connection. 

There are generally two classes of provisions or stipu- 
lations in the modern policy; one of which embraces mat- 
ters Ififore, and the other, things done or omitted after, 
the loss. The purpose of the former is to define and 
determine the risk, including title, alienation, location, 
occupation, use, character, habits^ mode of life, or what- 
ever may afiPect the risk; the office of the latter is 
to prescrible the rights and duties of the respectire 
parties after a loss, and the mode of enforcing 'iho 

45; Vosev. Life and Health Ins. Co., 6 Gush., 42; Miles v. Corn.. 
Mut. Life Ins. Co., 3 Gray, 580; Gladstone v. King, 1 Maule & S., 35. 
• 31 Conn., 517. 



§ 12 8. J SPECIAL PEOVISIONS OF THE CONTRACT. 235 

contract. The first class, it will be seen, affect the sub- 
stance of the contract, determining its validity, the 
liability of the insurers, and the security of the insured ; 
while the second class apply only when the rights and 
liabilities of the respective parties have become fixed by 
the terms of the contract, and relate to the formalities 
prescribed for observance by the insured in enforcing his 
claim for indemnity. By reason of their superior im- 
portance, the rule has become established that the first 
class of stipulations will be more strictly construed than 
those of the second class. The latter, however, must be 
substantially complied with.' 

There are two provisions which it may be well to 
notice specially in passing ; the one concerning limitation 
of an action on the policy, and the other in reference to 
arbitration. It is quite common for the parties to a con- 
tract of insurance to create for themselves and the con- 
tract a limitation unknown to the statute, by inserting a 
provision in the policy that no action upon it on a claim 
for indemnity shall be maintained, unless it be com- 
menced within a specified time after the loss, or after 
notice of the loss. Such a provision is held to be valid, 
binding the insured.' Coupled with this provision is the 

' May Ins., § 816, et seq.; Northwestern Ins. Co. v. Atkins, 3 Bush, 
(Ky.), 328; Walsh v. Washington, etc , Ins. Co., 33 N. Y., 427; Sexton 
V. Montgomery Ins. Co., 9 Barb., 191; Lycoming, etc., Ins. Co. v. Up- 
degraflf, 40Pa. St., 811. 

' May Ins., § 478; Amesbury v. Bowditch Mut. Fire Ins. Co., 6 
Gray, 596; Brown v. Roger Williams Ins. Co., 7 R. I., 301; s. o. 5 R. 
I., 304; Peoria Ins. Co. v. Whitehill, 25 111., 466; North Western Ins. 
Co. V. Phoenix Oil and Candle Co., 1 Pa. St., 449; Wilson v. ^tna 
Ins. Co , 27 Vt., 99; Bruce, et vas. v. Savannah Mut. Ins. Co., 24 
Ga , 97; Portage County Mut. Ins Co. v. West, 6 Ohio, 599; Carter v. 



236 SPECIAL PBOTISIONS OF THE CONTEAOT. [ § 128. 

further one, that the lapse of the prescribed period of 
limitation without commencing an action, shall be con- 
clusive evidence against the plaintiff's claim in an action 
for its enforcement subsequently commenced. These 
•stipulations, combined, not only create for the parties 
and contract a special limitation, but also estabhsh for the 
parties and the court, a new and special rule of evidence 
for an action on the policy. Both of these provisions are 
held to be valid.' The other provision to which atten- 
tion is directed is, that in case of loss, and of disagree- 
ment upon the terms of adjustment, all matters in dis- 
pute shall be submitted to arbitration. But it is gen- 
•eraUy held by the courts that this provision has no bind- 
ing force. The parties may voluntarily arbitrate their 
differences, and this course will be approved by the 
■courts ; but they cannot, by an agreement between them- 
selves in advance, deprive the courts of their jurisdiction 
•conferred by law. The parties are not above the law, or 
in all respects a law unto themselves. Moreover, as the 
•courts have power to compel specific performance of con- 
tracts, if the provision in question were held valid, they 
might be called upon to enforce it, thus obtaining judi- 
cial cognizance of a matter as to which the stipulation of 
parties had denied them jurisdiction. This result, it is 
:said in Hill v. HolUster,'' would place the parties in "the 

Humbolt Fire Ins. Co., 13 Iowa, 287; Riddlesbarger v. Hartford Ins. 
Co., 7 Wall., 386. 

' Citations last supra, and Cray v. Hartford Ins. Co., 1 Blatchf., 
-280; Riddlesberger v. Hartford Ins. Co , 6 Wall., 386;Fullam v. New 
York, etc., Ins. Co., 7 Gray, 61; Schroeder v. Insurance Co., 2 Phil. 
Pa., 286. 

» 1 Wilson, 139. And see May Ins., § 493; Scott v. Avery, 2 Eng. 
X,. & Eq., 337; s. o. 5 H. L. C, 311; Scott v. The Phoenix Ass. Co., 1 



§129. J MUTUAL INSUEANCE. 237 

ludicrous attitude of coming into court for the purpose of 
compelling each other to keep out. ' ' 

But, while the courts cannot, by a stipulation in the 
policy, be deprived of jurisdiction, or the insured of an 
action at law to determine his right of recovery, a pro- 
vision in the contract for the adjustment of damages, or 
other subordinate particulars, not affecting the merits of 
the claim for indemnification, will bind the parties,^ and 
be enforced by the courts.' 

§ 129. Mutual insurance. — It has been already 
stated ' that mutual insurance differs in some respects 
from other kinds of insurance. The leading peculiarity 
of mutual insurance is, that each person insured becomes 
a member of the company insuring, participates in the 
management, shares in the profits and losses of the bus- 
iness, is clothed with the rights, and subject to the lia- 
bilities, of a stockholder. ' ' He is at once insurer and 
insured." The acceptance of a policy by a party makes 
him a member of the company ; and he thereby becomes 
bound by its rules which he is presumed to know." But 
neither a by-law, nor any other act of the company, 

Stuart (Lower Canada), 152; Robinson v. Georges Ins. Co., 17 Me. 
131; Commercial Union Ins. Co. v. Hocking, 115 Pa. St., 407; Cross- 
ley V. Conn. Fire Ins. Co., 27 Fed. Rep., 30. 

' May Ins., § 493; Braunstein v. Accidental Death Ass. Co., 1 Best 
& Smith, 7 2; Tredwen- v. Holman, 1 Hurl. & C, 72; Lowndes v. 
Stamford, 18 Q. B., 425; Trott v. City Ins. Co., 1 Cliff. (IT. S. C. Ct.); 
438; Soars v. Home Ins. Co., 140 Mass., 343. 

' § 122 Supra. 

^ May Ins., g§ 548, 553; 1 Sch. Pers. Prop., pp. 678, 679; Bouv. L. . 
Diet. "Insurance Company;" Mygatt v. N. Y. Prot. Ins. Co., 21 N. 
Y. , 53; Ohio Mut. Ins. Co. v. Marietta Woolen Factory, 3 Ohio St. , N. 
B., 348; Union Ins. Co. v. Hoge, How. fU. 8.), 35; White v. Havens, 



238 MUTUAL INSUEANOE. [ § 129. 

affecting his contract or relation to the company, passed 
or done without his consent, will bind him. ' 

There are noticeable differances between a joint stock, 
and a mutual, insurance company in respect to capital. 
In the former, the capital is limited in the act of incor- 
poration ; while in the latter, it is ordinarily unlimited, 
depending upon the amount earned by the company and 
invested for the purposes of its business. The former, 
like other joint stock companies with a cash capital, 
issues transferable shares representing the capital; 
while in the latter, the capital is made up by what are 
termed ' ' deposit notes, ' ' by premiums paid on insurance, 
and by the business earnings of the company.' In addi- 
tion to the deposit notes given to make up the capital 
stock of the company, and assessable to pay losses, notes 
are sometimes given to the company in advance for pre- 
miums, usually called "stock notes," made payable in 
terms by insurance from time 'to time, as the makers may 
require. The former class are subscription notes to the 
capital stock of the company, are held for the security of 

2 How. Pr. Eep., 177; Mitchell v. Lycoming Ins. Co., 51 Pa. St., 403; 
Coles V. Iowa State Mut. Ins Co., 18 Iowa, 426; Diehl v. Adams Co. 
Mut Ins. Co., 58 Pa. St., 443; Sands v. Hill, 42 Barb., 65; Traders' 
Mut. Ins. Co. V. Stone, 9 AUen (Mass.), 483; Currie v. Mut. Ass. Soc, 
4 H. & M. (Va.), 815; Fell v. McHenry, 43 Pa. St.. 41; New England 
Mut. Fire Ins. Co. v. Belknap, 9 Cush., 140. 

' New England Mutual Fire Ins. Co. v. Butler, 34 Me., 351; Hamil- 
ton Mut. Ins. Co. V. Hobarf;, 3 Gray, 543; Insurance Co. v. Connor, 
17 Pa. St., 136; Great Falls Mutual Fire Ins. Co. v. Harvey, 45 N. H., 
293. 

^ 1 Sch. Pers. Prop., p. 678; May Ins., § 549; Fland. Fire Ins., 18, 19; 
Cumberland Valley Mut. Prot. Co. v. ScheU, 29 Pa. St.. 31; Sun Mut. 
Ins. Co. V. Mayor, 8 Barb., 450; Cora v. Mut. Assurance Co., 6 Crabbe,. 
103. 



§ 12 9. J MUTUAL INSUEANOE 239 

dealers, are negotiable, or collectable for the payment 
of losses or debts, and valid obligations to the full 
amount thereof, whether any premiums have been actu- 
ally earned or not ; while in the latter class the makers 
are only liable for the jpro rata share of such losses as 
may occur upon risks thereafter assumed, in common 
with all other premium notes held by the company. The 
former, being payable absolutely, are subject to the 
Statute of Limitations ; while the latter, being payable 
on a contingency that may never happen, are not, as a 
whole, subject to the statute, but only such portion of 
them as may be called for, and from the time of the 
caU.' 

, May Ins., §549; 1 Soh. Pers. Prop., p. 680; Dana v. Munro, 38 
Barb., 538; EweU v. Crocker, 4 Bosw., 22; Bell v. Shilley, 33 Barb., 
€10; Mclntyre v. Preston, 5 GUm. (111.), 48; White v. Haight, 16 N. Y., 
310; Tuckerman v. Brown, 33 N. Y., 297. 



240 LEGACIES, DEFINITION, AND CLASSES. [ § 130. 



CHAPTEK XII. 

LEGACIES AND DISTRIBUTIVE SHARES. 

LEGACIES. 
SECynON 130. Definition, and principal classes. 

131. Minor divisions, rules and incidents. 

133. Abatement, ademption, payment and satlsfaetion. 

DISTRIBUTIVE SHAKES. 

Section 133. Defined and explained. 

Legacies and distributive shares, being species of incor- 
poreal personal property, are legitimate subjects of notice 
in this treatise. 

I. Legacies. 

§ 130. Deflnition and principal classes. — ^A legacy 
is a testamentary gift of personal property. The word 
' ' bequest ' ' has the same significance ; and its verb 
' ' bequeath ' ' is generally used in wills, the substantive 
" legacy " having no corresponding verb.' 

Legacies naturally range in three general classes, 
namely, general, demonstrative, and spiecific. 

1. General. — A general legacy is one which simply 
gives a sum of money, or other property, without fur- 
ther description, and, consequently without limiting the 
subject of the gift to any particular portion of the estate, 
in exclusion of other portions of the same kind. 

' 1 Sch. Pers. Prop., p. 338; Bouv. L. Diet., "Legacy;" O'Hara's 
Wig. WiUs, p. 330, e,t seq.; And. L. Diet., "T^egacy." 



§ 130.] DEMONSTRATIVE, AND SPECIFIC. 241 

2. Demonstrative. — A legacy of this class is briefly 
defined, a gift of a general legacy to be drawn from a 
specific fund. If the fund fails, the legacy becomes a 
charge upon the general assets. 

3. Specific. — A specific legacy is the gift of a thing 
in specie, and not of its value. In other words, it is a 
bequest of a specified part of a testator's personal estate, 
distinguished from all others of the same kind.' 

Between general and specific legacies there is this 
important difference : In the latter, if the testator do 
not leave the specific thing bequeathed the gift fails 
altogether, the legatee having no claim on the estate at 
large in virtue of the legacy. But if the specific thing 
be found among the assets, the legatee will be entitled 
to it without diminution, or contribution by reason of a 
deficiency in the estate to pay all the legacies in full." 
A general legacy, on the other hand, is a charge upon 
the whole personal estate, and must be paid in full if the 
assets be sufficient to satisfy debts and legacies in full ; 
but in case the personalty be insufficient for such pur- 
pose, the general legacy wiU abate or be subject to con- 
tribution." 

' O'Hara's Wig. Wills, p. 330; Eedf. WiUs, p. 181, et seq.; 1 Sch. 
Pers. Prop., p. 730; WiU, Exrs., p. 340; 2Maed.,Ch. Pr,,pp. 7, 8; 
Coleman v. Coleman, 2 Ves., Jr., p. 160; TifEt v. Porter, 8 N. Y., 518; 
Ludlam's Estate, 1 Harris, 188 ; Walls v. Stewart, 4 Harris, 381 ; 
Malone v. Mooring, 40 Miss., 247; Millens v. Smith, 1 Drew & S. (Ire- 
land, Ch.), 204; Gilmer v. Gilmer, 43 Ala., 9. 

« 1 Sch. Pers. Prop., pp. 730, 731; WUl. Exrs., p. 350 ; 3 Williams 
Exrs., 1076, et seq.; 2 Redf. Wills, pp. 181-186; Fountain vj Tyler, 9 
Price, 94, 104; Purse v. Snaplin, 1 Atk., 414; Morris v. .Thomson, Mc- 
Cart. (N. J.), Ch. 493; Foote, Appellant, 22 Pick., 299; Stephenson v. 
Dowson, 8 Beav , 343. 

• Citations last supra. 
IG 



242 MINOE DIVISIONS, EULES, ETC. [ § 131. 

Demonstrative legacies partake, in certain respects, of 
the nature both of general, and specific legacies ; of the 
former, in that if the fund from which the legacy is to 
be paid for any reason fails, the legatee will not 'lose his 
bequest, but may receive it from the general assets ; of 
the latter, in the particular that the legacy is not liable 
to abatement upon a deficiency of assets to pay aU the 
legacies. ' 

It should be observed in passing that the courts are 
disinclined to construe legacies as specific, unless com- 
pelled so to do by the clearly expressed intention of the 
testator; and for the reason that specific legacies are 
rega,rded as ' ' less consonant to reason and justice, ' ' and 
more liable to render a provision of the testator ineffect- 
ive, than general legacies.* 

§ 131. Minor divisions; rules and incidents. — In 

addition to the principal classes of legacies now briefly 
noticed, there are several minor divisions, with rules and 
incidents, that require attention. 

1. Gumulatvoe legacies. — When the same, or a differ- 
ent, amount of money, or other things, estimated by 

' 1 Sch. Pers. Prop., p. 733; O'Hara's Wig. Wills, p. 331; 3 Redf. 
Wills, p. 136; Will. Exrs.. p. 357; Creed v. Creed, 11 Clark & F. 508; 
Coleman V. Coleman, 3 Ves. Jr., 640; 3 Wms. Exrs. (6tli Eng. Ed.), 
1078. 

' 3 Redf. W'.ll3, p. 145, et seq. ; O'Hara's Wig. Wills, pp. 333, 334; 
Will Exrs., p. 349; Sibley v. Perry. 7 Ves., 580 ; Smith v. Lampton, 
8 Dana, 69; Briggs v. Hosford, 33 Pick., 388, 389; Chaworth v. Beech, 
4 Ves., 555; Mayraunt v. Davis, 1 Desaus., 303; Cuthbert v. Cuthbert, 
8 Yeates, 486 ; Ellis v. Walker, Ambler, 310; Walton v. Walton, 7 
Johns. Ch R., 364; TiflEt v. Porter, 8 N. Y., 518; Enders v. Enders, 3 
Barb. , 363, 367. 



§ 131. J EESIDtTAEY LEGACIES. 243 

quantity, is given to the same- person more than once by 
will or codicil, the question arises whether the several 
bequests are to be construed as cumulative, or merely 
repetitions, giving the beneficiary but one legacy. The 
rule of construction governing such cases seems to be 
well established, that where the legacies are of the same 
amount, and in the same instrument, it will be presumed 
that they are repetitions of the same gift, and will be so 
adjudged, unless a different intent is shown by the 
language of the instrument, and the surrounding circum- 
stances. But where the legacies are not in the same 
instrument, or of the same amount, the presumption is 
that they are cumulative, and the legatee will take both, 
unless it be clearly shown that the testator intended but 
one gift.' 

2. Residua/ry legacy . — A residuary bequest carries to 
the legatee all the personal property of the testator 
which he did not attempt to otherwise dispose of by his 
will, and also every thing that he did attempt to other- 
wise dispose of, but ineffectually, as void and lapsed leg- 
acies. This effect results from a presumption in favor of 
the residuary legatee, and a decided disclination of the 
courts to adopt a construction of wills which would result 
in partial intestacy.* 

• 2 Eedf. Wills, p. 178, et seq.; O'Hara's Wig. WiUs, pp. 350-353; 1 
Sch. Pers. Prop., p. 733; WiU. Exrs., pp. 363, 363; Suisse v. Lowther, 
3 Hare, 434, 433, 433; Holford v. Wood, 4 Ves., 76; Manning v. Thes- 
eiger, 3 Mylne & K., 39; Ridges v." Morrison, 1 Br. Cr. Cas., 389; 
Yockney v. Hansard, 8 Hare, 630, 623; Lobley v. Stocks, 19 Beav., 
S93; DeWitt v. Yates, 10 Johns., 156; Jones v. Creveling, Harr. N. J., 
127; Masters v. Masters, 1 P. Wms., 424. 

' 3 Eedf. WUls, p. 115, et seq.; 1 Sch. Pers. Prop., p. 733; O'Hara's 
Wig. Wills, pp. 349, 350; Attorney General v. Johnstone, Amb., 577; 



244 VESTED, AND CONTINGENT, LEGACIES. [ § 131. 

3. Yested, omd contingent, legacies. — A vested legacy 
is one that takes effect, or becomes vested, on the death 
of the testator; at testator's decease it becomes " a cer- 
tain interest in a certain person." A contingent legacy 
on the other hand, is one the vesting of which depends 
upon some uncertain person or event.' If there be 
nothing in the will clearly indicating a contrary intention, 
the legacy will take effect at testator's decease, the pre- 
sumption being in favor of a vested, rather than a con- 
tingent, legacy ; and, in case of ambiguity, the courts in 
construing the will incline to a vested, in preference to a 
contingent, interest." 

It must not be understood, however, that the mere 
fact that the legatee does not become entitled to the 
inmiediate possession and enjoyment of the legacy at the 
death of the testator, or at the time when legacies are 
payable by law, necessarily makes it contingent ; for two 
estates or interests may vest at testator's death, the 
one in possession and the other in expectancy. The 
enjoyment of the gift by the legatee may be postponed 
for a limited period after testator's death, and yet be a 

Cowling V. Cowling, 26 Beav., 449; King v. Strong, 9 Paige, 105; 
Peay v. Barber, 1 Hill Ch. (S. C), 95; Cambridge v. Boas, 8 Vesey, 
13, 15; Leake v. Bobioson, 2 Mer., 363, 393; Beynolds v. Kortright, 
3eav., 417, 427. 

' O'Hara's Wig. Wills, pp. 261-265; 3 Bedf. Wills, p. 215; 1 Sch. 
Pers. Prop., pp. 737-788; Will. Exrs., p. 358; Bedf. Surr., p. 823. 

' Citations last supra, and see Guyther v. Taylor; 3 Ired. (N. C), 
Eq., 328; Eldridge v. Eldridge, 6 Cush., 516; Devane v. Larkins, 3 
Jones (N. C), Eq., 377; Gill v. Weaver, 1 Dev. & B. (N. C), Eq., 41; 
Burd V. Burd, 4 Pa. St., 183; Gilford v. Thome, 9 N. J. Eq., 
(1 Stock.), 703; Van Vechten v. Van Vechten, 8 Paige, 104; Dominick 
V. Moore, 3 Bradf. Surr., 201; Newport v. Cook, Id., 832. 



§ 131.] ABSOLtTTE, CONDITIONAL, AND LAPSED. 245 

vested legacy ; the interest may vest in right, although 
not in immediate possession. ' 

4. Absolute, and conditional, legacies. — These are 
nearly allied to, and in some respects the same as, vested 
and contingent leagacies. An absolute legacy is an un- 
qualified testamentary gift. A conditional legacy is a 
bequest depending upon the occurrence or non-occurrence 
of an uncertain event, by which the legacy wiU vest, or 
be defeated.' 

There are two kinds of conditions, precedent and sul- 
seqv^nt. The former are those in which the vesting of 
the legacy is postponed to, and made 'conditional upon, 
the happening of some given event, or the arrival of 
some specified time. The latter is a legacy which, though 
vested, may be defeated by the happening or not happen- 
ing of some future event.* 

5. La/psed legacies. — Lapse is the failure of a testa- 
mentary gift, generally caused by the death of the donee 
prior to that of the testator. But a legacy may lapse 
after the death of the testator, by reason of a contingency 
upon which the vesting is conditioned ; so that a general 
legacy which never vests is deemed a lapsed legacy, 
whether the lapse occurs before or after the testator's 
death.* 

' 3 Redf. Wills, pp. 215, 216; O'Hara's "Wig. Wills, p. 261; 1 Sch. 
Pers. Prop., pp. 739, 740; Dayt. Surr., p. 387, et seq. 

' Will. Exrs., p. 358, et seq.; 1 Soh. Pers. Prop., p. 738; 1 Eop. Leg., 
645. 

' Citations last supra. 

* O'Hara's Wig Wills, p. 416; 2 Redf. Wills, p. 157, et seq.; 1 Soh. 
Pers. Prop., p. 735; Dayt. Surr., pp. 388-391; 3 Wms. Exrs., 1084; 
Fisk V. The Attorney General, Law Rept. 4 Eq., 521; In re Lewes' 



246 ABATEMENT, ADEMPTION, ETC. [ § 132 

Where the legacy is to several persons jointly, a lapse 
will not occur unless all the donees die prior to the death 
of the testator ; but it is otherwise if the legatees take 
as tenants in common.' And a bequest to a class, as to 
the children of A. , whether he be alive or dead, will not 
lapse so long as any one of the class survives. ' 

The lapsed legacy will either fall into the residuum, or 
be undisposed of by the will and subject to the law of 
distributions. The first alternative will be preferred in 
construing the will, partial intestacy not being favored 
by the courts.* 

It should be noticed that there is an important distinc- 
tion between personal, and real, estate in regard to the 
devolution of void and lapsed legacies ; the former, it is 
generally held, fall into the residuum, while the latter de- 
scend to the heirs.' 

§ 132. Abatement; ademption^ payment and satis- 
faction. 

Trasts, Law Rep. 11 Eq., 336; Elliott v. Davenport, 1 P. Wms., 83; 
Corbyn v. French, 4 Ves., 418; Wentworth's Exrs. 2 PhiU., 361. 

' Citations last supra. And see Buffar v. Bradford, 8 Atk., 320 ; 
Paye v. Paye, 2 P. Wms., 489; Gardner v. Printup, 3 Barb., 88, 89 ; 
Man V. Man, 3 Str., 905; Bagwell v. Dry, 1 P. Wms., 700; 3 Id., 400. 

' 2 Eedf. Wills, p. 169; Shuttleworth v. Greaves, 4 Mylne & C, 35; 
Doe d. Stewart v. SheflSeld, 13 East, 536; Anderson v. Parsons, 
Greenl., 486; Sparhawk v. Buell, 9 Vt., 41; Hooker v. Gentry, 3 
Mete. (Ky.), 463; Knight v. WaU, Dev. & B. (N. C.) L., 135; Stires v. 
Van Rensselaer, 2 Bradf. Burr., 173; Carver v. Oakley, 4 Jones (N. C), 
Eq., 85; Hawkins v. Everett, 5 Id., 45. 

' Eedf. Wills, pp. 117, 126; Dayt. Burr., pp. 439, 440; supra, § 131, 
sub. 3, and cases cited. 

* Redf. WUls, pp. 117, 136; Cox v. Harris, 17 Md., 23, 31; Brown v. 
Higgs, 4Ves., 708, n. b.; Tongue v. Nutwell, 13 Md., 415; Faust's 
Adin'rx v. Birner, 30 Mo., 414. 



§ 132.J abatement; ademption. 247 

I. Abatement. 

We have seen that one of the limitations to the abso- 
lute ownership of property, or, in other words, absolute 
property in things, is the liability of one's property to 
appropriation in satisfaction of his just debts.' The 
application of this principle to legacies involves their par- 
tial or total abatement when the assets are insufficient to 
pay all the debts. The order of abatement is, first, gen- 
eral legacies ; second, if there still be a deficiency, the 
demonstrative and specific legacies. Demonstrative lega- 
tees must first look to the demonstrative fund for pay- 
ment ; but if this fund prove insufficient for the purpose, 
the deficiency, in common with general legacies, will be 
a charge upon the general fund. A "demonstrative 
legacy," it is said, "has the priority of right to the fund 
out of which it is directed to be paid, as against all other 
claims except those of creditors. " " A specific legacy is 
only liable to abatement in case of a deficiency of assets 
to pay all the debts, after abatement in full of general 
and demonstrative legacies.' 

As already shown, it is not liable to contribution 
towards a deficiency of assets to pay all the legacies in 
fuU/ 

II. Ademption. 

Used in this connection, ademption means the revoca- 
tion or taking away of a legacy. Specific legacies are 

• Supra, § 5, sub. 5. 

' Redf. Wills, pp. 141, 143; "Will. Exrs. p. 383; O'Hara's Wig. WiUs. 
p. 353, et seq.; SeUon v. Watts, 7 Jur. N. S., 134; 9 Weekly Eepr., 847. 
> Will. Exrs., p. 382; Redf. Surr., p. 331. 

* Supra, ^ ISO. 



248 ADEMPTioir. [§l;-i2. 

adeemed when the subject of the gift is wholly lost, 
destroyed, or disposed of by the testator during his life ; 
or when its form is so changed as not to remain in specie. ' 
An exception to this rule is found in cases where the 
change in the subject of the bequest is effected by oper- 
ation of law, instead of the act of the testator, or through 
other agency.' 

The question of ademption of general legacies is ordi- 
narily connected with advancements and portions. 
While the intention of the testator must govern, courts of 
equity incline to treat advancements to a child by a 
father, or one in loco parentis, as_ an ademption of a gen- 
eral legacy theretofore given by his will, to the extent of 
the amount advanced.' In cases of doubtful intention, 
the courts have received parol evidence, not for the pur- 
pose of directly affecting the will, or of varying or con- 
tradicting the written instrument, but to establish inde- 

' 2 Eedf. Wills, p. 431, et seq.; 1 Sch. Pers. Prop. 740, 741; O'Hara's 
Wig Wills, p. 361; WiU. Exrs. p. 351; Ashburner v. McGuire, Br. C. 
C, 108; Durant v. Friend, 5DeGex & Sm., 343; Ford v. Ford, 3 Fos- 
ter (N. H), 212; Walton T. Walton, 7 Johns. Ch., 258, 262; McKinnon 
V. Thompson, 3 Johns. Ch., 307; Badrick v. Stevens, 3 Br. C. C, 431; 
Eider v. Wager, 2 P. Wms., 329, 330; Donahue v. Lea, 1 Swan 
(Tenn.), 119; Havens v. Havens, 1 Sandf. Ch., 324; Smith v. Jones, 4 
Ohio, 115. 

' Eedf. WiUs, p. 434, and notes; Partridge v. Partridge, Cas. 1 
Talb., 226; Shaftsbury v. Shaftsbury, 2 Vern., 747; Dingwell v. As- 
kew, 1 Cox, 427; Richards v. Humphreys, 15 Pick., 133, 135. 

• 1 Sch. Pfers. Prop., pp. 741, 742; 2 Eedf. Wills, p. 439, et seq.; la 
Pye, ex parte, 18 Ves., 140, 153; Hopwood v. Hopwood, 7 H. L. Cas., 
728; Warel v. Lant, Prec. Ch., 182; Jenkins v. Powell, 2 Vern., 115; 
Scotton V. Scotton, 1 Str., 235; Carver v. Bowles, 2 Euss. & My., 
301; Montague v. Montague, 15Beav., 565. 



§ 132.] PAYMENT AND SATISFACTION. 249 

pendent facts which may aid the court in discovering the 
testator's intention.' 

3. Payment and Satisfaction. 

"We have seen ' that a will speaks from the time of 
testator's death. And it has been shown ' that if there 
be nothing in the will, or extrinsic evidence, indicating 
a contrary intention of the testator, a legacy will take 
effect, or become vested, at his decease. It follows that 
the title, or right, to such a legacy passes to the legatee 
on the death of the testator, subject to the payment of 
his debts ; .but the assent of the executor is requisite to 
perfect the done'e's title.* The executor is regarded in 
equity as a trustee, having a right to hold the legacy 
until after the payment of the debts ; ° but if he unreason- 
ably withholds his assent, a court of equity will compel 
him to yield it.* 

The rule is quite general that an executor may have 
one year in which to ascertain- the condition of the 
estate, nature and extent of assets, and the claims of 
creditors, before being compelled to pay legacies. He 
may, however, pay or deliver the legacy prior to the 
expiration of the year, or other limited period ; but he 

' Redf. Wills, p. 441, e.t seq.; 1 Sch. Pers. Prop., p. 743; Kirk v. Ed- 
dows, 3 Hare, 509; Clark v. Jetton, 5 Sneed, 339; Paine v. Parsons, 
14 Pick., 318; Swooper's Appeal, 37 Pa. St., 58; Wallace v. Pomfret, 
11 Ves., 643; Hall v. HUl, 1 Dru. & War., 94, 111-133. 

' Supra, § 95, with citations. 

' Supra, § 131, sub. 3, with citations. 

* 3 Redf. Wills, pp. 461-464; 1 Sch Pers Prop , 744; Redf. Surr., 
pp. 318; Will. Exrs., pp. 379, 380. 

» Citations last supra; and see 8 Redf. Wills, p. 461, etseq. 

' Citations supra; and 8 Wms. Exrs., p 1338. 



250 PAYMENT AND SATISFACTION. [ § 132. 

will do SO at his peril should the assets prove insufficient 
to pay all the debts. ' 

As a general rule, a legacy by a debtor to his creditor 
which is of equal or greater amount than the debt, and 
of the same character, and payable after the debt 
becomes due, wiU be considered as a satisfaction of it ; 
but any circumstances tending to repel the presumption 
that such efPect was intended by the testator, will be 
available to prevent the application of the rule." 

Whether a legacy by a- creditor to his debtor shall be 
regarded as a release or discharge of the debt, will 
depend upon the intention of the testator ; and his inten- 
tion must be determined by the structure and language 
of the will, under settled rules of construction, aided in 
doubtful cases by parol proof of circumstances whereon 
to found inferences and presumptions.' 

It is a common law doctrine that the appointment by 
a creditor of his debtor to be his executor, operates as a 
release of the debt ; and this for the reason that by a 
union of the rights of debtor and creditor in one person, 
the debt would no longer be the subject of an action at 

' 2 Redf. Wills, pp. 465, et seq., and 457; O'Hara's Wig. Wills, p. 
343; 1 Sch. Pers. Prop., pp. 744-746; WiU. Exrs., pp. 377-379; 1 
Pop. Leg., pp. 456, 457; 1 Sch. Pers. Prop., pp. 472, 473; Coppin v. Cop- 
pin, 3 P. Wms., 291, 296; Keyling's Case, 1 Eq. Cas., Abr., 239, pi. 
25; Orr v. KaineS, 2 Ves., Sen., 193. 

« 2 Redf. WiUs, p. 185, et seq.; 1 Id., pp., 539, 540, n. efWill. Exrs., 
p. 866; Dayt. Surr., pp. 395, 396; Williams v. Crary, 5 Cow., 370; 8 
Id., 246; 4 Wend., 443. 

» 2 Bedf. Wills, p. 189, et seq.; 2 Rop. Leg., 1064, 1065, 1070 ; Fitch 
V. Peckham, 16 Vt., 150; Strong v. Williams, 12 Mass., 391; Van 
Ripper v. Van Ripper, 1 Green, Ch., 1; Clarke v. Bogardus, 12 Wend., 
67; Zeiglpr v. Eckhert, 6 Pa. St., 13. 



§ 13 3. J DISTEIBDTIVE SHARES. 251 

law, the rule being that in such an action the same per- 
son cannot be both plaintiEf and defendant.' But the 
same rule does not apply in equity ; and there the execu- 
tor is held to have paid the debt to himself, and will be 
accountable for the amount, as assets in his hands, to 
any party entitled to claim them.' 

It should be noticed that the rule of law in question 
does not apply to the appointment of the debtor as 
administrator, because that is the act of the law and not 
of the creditor.* 

II. Distributive Shares, 

§ 133. Distributiye shares defined and explained. — 

In case of intestacy, after the payment of debts and 
expenses of administration, the personal property of 
intestate passes to his next of kin under statutes of dis- 
tribution; and the several portions thus distributed con- 
stitute what are known in legal parlance as ' ' distributive 
shares." The statutes of distribution in the United 
States are based, in large part, upon the English Statute 
of Distributions, 22 and 23 Charles II., ch. 10.* 

It has been shown' that the legal title to intestate's 
personal property does not pass directly to the next of 

' 2 Eedf. "Wffls, pp. 191, 192 ; Went. Exrs. 73, 74, 75 ; Stagg v. 
Beekman, 2 Edw. Ch., 89; Berry v. Usher, 11 Ves., 87 ; Fox v. Fox, 
1 Atk., 463; Needham's Case, 8 Co., 135 a; Cheetham v. Wa.rd, 1 B. & 
P., 630; Waukford v. Waukford, 1 Salk., 399. 

» Treakly v. Fox, 9 B. and C, 130; Strong v. Williams, 12 Mass., 
891, 393; Cloud v. Clinkinbed,rd, 8 B. Mon., 397, 399. 

» Waukford v. Waukford, 1 Salk., 299, 803, 306; mpra, §§ 70, 90. 

* 2 Kent Com., p. 420; 1 Sch. Pars. Prop., pp. 747-750; 3 Eedf . WiUs, 
pp. 424, 425. 

» Supra, § 70, and cases cited. 



252 DISTRIBUTIVE SHARES. .[§133. 

kin on his death; that title can accrue to them only 
through the medium of an administrator. The legal 
title passes to the administrator, on his appointment, in 
trust for the purposes of administration ; but the next of 
kin, entitled to distributive shares under the statute, 
have a vested interest in the surplus after the payment of 
debts and expenses of administration. 

The statutes of the several States present some variety 
in details, an examination of which would require more 
space than the scope of this work will permit ; but the 
general principles now briefly stated apply to_aU. 



§ 134.J STOCK AND STOCKHOLDEKS. 253 

CHAPTEE XIII. 

STOCK AND STOCKHOLDERS, 

Section 134. Stock, and shares of stock, defined. 

135. Methods of acquiring title to stock. 

136. Liability of stockholders. 

137. Assets upon dissolution of the company. 

"We tave already considered the organization and oliar- 
acter of corporations, and incidentally therewith the 
nature of stock, and the interest and rights of stock- 
holders.' But the great and constantly increasing 
importance of this species of personal property demands 
further attention. 

§ 134. Stock, and shares of stock, defined. — The 

term ' ' stock ' ' is frequently used to signify money 
invested in business by an individual or jBrm ; but in this 
connection it means the capital of business corporations 
and joint-stock companies. The money or property con- 
tributed by subscribers to the fund which constitutes the 
business capital of the corporation or association, is 
termed "capital stock." The amount of capital stock 
is generally fixed by the corporate charter, or limited by 
the statutes under which the company is organized.* 

' Supra, §§ 30 and 31. 

» Barry Merchants' Ex. Co., 1 Sandf., Ch. 280, 305; Burrall v. Bush- 
wick E. E. Co., 75 N. Y., 211; Williams v. Western Union Tel. Co., 
93 N. Y., 163, 188; Bailey v. Clark, 91 WaU., 284; Hightower v. 
Thornton, 8 Ga., 486, 500; St. Joseph E. E. Co. v, Shacklett, 30 
Mo., 551, 558; St. Louis Iron M., etc., Co. v. Loftin, 30 Ark., 693, 709; 
Bent V. Hart, 10 Mo. App., 143, 146; Cook on Stock (3 Ed.), g§ 3, U99; 
1 Potter Corp., § 254, et seq.; 1 Sch. Pers. Prop., p. 618, et seq. 



254 STOCK AND 8TOCKHOLBEE8. [ § 134 

The capital stock of a company is sometimes confused 
in thought with the amount of its property; but the 
two funds are clearly distinguishable. The capital stock 
remains as fixed in the organization of the company, 
unless subsequently changed in amount by authority of 
statute ; but the property of the company may vary in 
amount and value from time to time, as affected by the 
condition of business, and by gains and losses. This dis- 
tinction is emphasized by the rule that dividends can 
legally be made only from net profits; that dividends 
which impair the capital stock are illegal, and may be 
recovered back from the stockholders.* 

A share of stock embraces and represents the whole 
interest of the holder in the corporation, or company, 
and aU his rights growing out of the relation. These, 
summarized, are a right to participate in the management 
of the company, to share, in proportion to his interest in 
the stock, in the profits when declared as dividends, and 
to receive an aliquot part of the proceeds of the capital 
and assets on dissolution of the company, after payment 
of its debts.' But a shareholder, while having the rights 

' Citations last supra, and Cook on Stocks (2 Ed.), §§ 546, 547; 
Hughes V. Vermont Cop. Mining Co., 73 N. Y., 207, 210; Chaffee v. 
Rutland B. R. Co., 55 Vt., 110; Elkins v. Camden, etc., R. R. Co., 36 
N. J. Eq,, 233; Lockhart v. Van Alstyne, 31 Mich., 76; Pittsburgh, 
etc., R. R. Co. V. County of Allegheny, 63 Pa. St., 126; Raib-oad Com- 
pany V. Howard, 7 Wall , 392; Hastings v. Drew, 76 N. Y., 9; Gratz 
V. Redd, 4 B. Mon., 178; Bank of St. Marys v. St. John, 25 Ala., 566. 

» Cook on Stock (3 Ed.), § 5; 1 Potter Corp., pp. 329, 330; BurraU v. 
Bush wick E. R. Co., 75 N. Y., 211; Plimpton v. Bigelow, 93 N. Y., 
593, 599; Field v. Pierce, 103 Mass., 253, 261; Jones v. Davis, 35 Ohio 
St., 474, 477; Harrison v. Vines, 46 Tex., 15, 21; Fisher v. Essex Bank, 
5 Gray, 373, 378; Neiler v. KeUey, 69 Pa. St., 403, 407. 



§ 135.] ACQtJIEING TITLE TO STOCK. 255 

now stated, has no separate legal title to the property or 
profits of the corporation, until a division is made, or a 
dividend declared.' The act of legally declaring a divi- 
dend, in contemplation of law, has the effect of severing 
the stockholder's share from the common fund of the 
company, and setting it apart for his use and benefit, in 
his individual right. The share thus set apart becomes 
immediately a debt due from the company to the share- 
holder, which he may recover by an action at law, if it 
be not paid on demand.' 

It should be observed, however, that the dividend of a 
stockholder is applicable to a debt due from him to the 
company at the time the dividend becomes payable ; and 
if an action be brought for the dividend the company 
may set up the debt by way of set-off or counter-claim. ' 

§ 135. Methods of acquiring title to stock. — There 
are two general methods of acquiring stock, and thus 
becoming stockholders; one by original subscription 
to the stock in the formation of the company ; the other 
by transfer from a stockholder. 

' Cook on Stock (2 Ed ), §§ 534, 535; Beverage v. New York El. R. 
R. Co., 112 N. Y., 1, 37; CuiTy v. Woodward, 44 Ala., 805; Boardman 
V. Lake Shore, etc., E'y Co., 84 N. Y.,' 157; Goodwin v. Hardy, 
57 Me., 143; Rand v. Hubbell, 115 Mass., 461, 474. 

« Cook on Stock, (2 Ed.), §544; Boone Corp., § 125, and cases cited; 
Jackson's Adm'rs v. Newark Plank Road Co , 31 N. J. Law, 377; 
Westchester, etc., R. R. Co. v. Jackson, 77 Pa. St., 321; Stoddard v. 
Shetucket Foundry Co., 34 Conn., 542; Hall v. Rose Hill, etc., Co., 6 
Ohio St , 489; Fawcett v. Laurie, 1 Drew & Sm., 192; Dalton v. Mid- 
land Counties R'y Co., 13 C. B., 474. 

• Cook on Stock (2 Ed.), § 545; Hagar v. Union National Bank, 63 
Me., 509; King v. Patterson, etc., R'y Co., 29 N. J. Law, 504; Sargent 
V. Franklin Ins. Co., 8 Pick., 90; Bates v. New York Ins. Co., 3 Johns. 
Cas., 338. 



256 BTJBSOEIPTION TO SHARES. [ § 135. 

1. Subscription. — The amount of capital of a private 
business corporation is fixed by charter, or by its articles 
of association when organized under a general statute, 
and is divided into a certain number of shares. Sub- 
scriptions to the shares of stock are requisite, both to 
complete the organization of the company, and to furnish 
the necessary capital. As the par value of the shares is 
not ordinarily paid in fuU by the subscribers at first, it 
becomes essential to the life of the company, and for the 
security of creditors, that the subscriptions should be 
binding and enforceable obligations, taking the place ^ of 
the unpaid balance in making up the capital stock of the 
company. And subscriptions are held to be contracts 
which, when legally made, are binding and enforceable. 
The rights, privileges, and benefit of membership in the 
company, constitute a valid and sufiicient consideration 
for the, promise of the subscriber, express or impUed ; 
and the preliminary subscriptions become vested in the 
company immediately upon its formation, their face 
value being contributions to its capital stock.' It is a 
settled rule that a subscription for shares implies a 
promise to pay for them, without proof an express 
promise, or of any particular consideration.' 

> 1 Potter Corp., § 227, et seq.; Cook on Stock (2 Ed.), § 52, et seq.v 
Boone Corp., §§ 108-111, and cases cited; Pendergast v. Turton, 1 
Young & C. Oh., 97; Baltimore, etc., Turnpike Co. v. Barnes, 6- 
Harris & J. (Md.), 57; Kansas City Hotel Co. v. Hunt, 57 Mo., 126; 
Beecher v. Dillsbury, etc , E. R. Co., 76 Pa. St., 306; Junction, etc., 
R. E. Co. Y. Reve, 15 Ind., 236; Marsh v. Burroughs, 1 Wood, 463. 

' Citations last supra, and Hawley v. Upton, 102 U. S., 314; Buffalo,, 
etc., E. E. Co. v. Dudley, UN. Y., 336; Waukon, etc., R. R Co. v. 
Dwyer, 49 Iowa, 121; Mitchell v. Beckman, 64 Cal., 117; Merrimao, 
etc., Co. V. Levy, 54 Pa. St., 227; Fry v. Lexington, etc., R. R. Co., 
2 Mete. (Ky.), 814. 



§ 136. J i^rABILITY OF STOCKHOLDEES. 257 

While, on the one hand, the unpaid subscription may 
be recovered by an action at law, on the other hand, the 
subscriber is entitled to a certificate of stock represent- 
ing his interest in the company. If, on demand, the 
company refuses to issue the certificate, the subscriber or 
stockholder may compel its issuance by a suit in equity, 
provided the full capital stock has not been issued ; and 
if it has been, the stockholder may recover of the com- 
pany the value of the shares at the time of demand.' 

2. Transfer. — It is vsrell settled that stock is personal 
property, transferable, and capable of alienation and 
succession, like other species of personal property, and 
by the same methods. It follows, therefore, that one 
may acquire title to shares, and become a shareholder, 
by purchase and transfer from another.' 

§ 136. liability of stockholders, and how enforced. 

The several ways in which a stockholder may be liable 
on his stock, wiU now be briefly noticed. 

1. To the company, and its creditors. — It has already 

' Cook on stock (3 Ed), §§ 60, 193; Fletcher v. McGiU, 10 N. E., 
851; Appeal of Rowley, 9 Atl. Rep,, 339; Chester Glass Co. v. Dewey, 
16 Mass., 94; Fergeson v. Wilson, L. R., 3 Ch., 77; Wyman v. Am. 
Powder Co., 63 Mass., 168; Finley, etc., Co. v. Hurtz, 34 Mich., 89; 
McCord V. Ohio & Miss. R. R.Co , 13 Ind., 330; BuflEalo, etc., R R. 
Co. V. Dudley, 14 N. Y., 336, 337; Mitchell v. Beckman, 64 Gal., 117; 
Burrows v. Smith, 10 N. Y., 550. 

« Cook on Stock (3 Ed.), §§ 6, 7, 331; Boone Corp., § 132; 1 Potter 
Corp., § 357; Heart v. State Bank, 3 Dev. Eq., Ill; Cole v. Ryan, 53 
Barb., 168; Mobile Mut; Ins. Co. v. CuUum, 49 Ala., 558; Boston 
Music Hall v. Cory, 139 Mass., 435; Chouteau Spring Co. v. Harris, 
30 Mo., 383; Poole v. Middleton, 39 Beav., 646 ; Brightwell v. Mal- 
lory, 10 Yerg. (Tenn ), 196; Bank of Attica v. Mgfs. & Trs. Bank, 30 
N. Y., 501. 

17 



258 UABILITT OF STOCK aOLDEES. [ | 130.. 

been shown tliat a stockholder is liable to tl.e coiapanj' 
on bis contract for the unpaid amount of his subscription." 
So, also, is he liable to the corporation creditors for sucL, 
unpaid amount ; and this in virtue of the doctrine,, now 
■well established, that unpaid subscriptions constit;ate a 
trust fund for the benefit of the company creditors. 
Courts of equity, by their flexible and efficient methods 
of procedure, will always readily give their protection tO' 
the rights and interests of creditors, who are a favored 
class in that forum.' 

The contract of subscription does not, generally, 
specify a time of payment ; and hence is regarded and 
treated as a promise to pay in the future at such times, 
and in such parts, as the oompanj' may olBcially demand 
by way of "calls." The calls, however, must be made 
by the proper authorities, aild in. accordance with law, 
or they wUl be invalid and unavailable.' 

The authorities ai-e not in. agreement respecting the 

' Supra, §§ 134, 135. 

» Cook on Stock (2 Ed.), § 199, et eeq.; 1 Sch. Pers. Prop., p. 646, 
et seq.; Sawyer v. Hoag, 17 Wall., 610, 620; Wood v. Duminier, II 
Mason, 308; Germantown, etc., Ry Co. v. Fitler, 60 Pa. St., 134; 
ffightower v. Thornton, 8 Ga., 486; Crawford v. Itolier, 39 Md.. 599} 
Sanger v. Upton, 91 U. S., 56; and numerous other oasesi in the same 
Une. 

» Cook on Stock (3 Ed.), §§ 104-116; 1 Potter Corii., § 246, et seq.; 
Boone Corp., §§ 116, 118; Braddock v. PhU., etc., R. R. Co , 45 N. J. 
L., 303; Banet V. Alton, etc., R. R Co., 13 111., 504; Spangler v. Ind. 
& 111. Central R. R. Co , 31 lU., 276; Grosse Isle Hotel Co. v. L'.Aji- 
son's Exrs., 43 N. J L., 10; s. c, 48 N. J. L., 442; Pittsburg & Cor- 
nellsviUe R. R. Co. v. Clarke, 39 Pa. St , 14(5; Budd v. Multnomah St. 
Ry. Co., 15 Pac. Rep., 659; Eakright v. Loganspoit & N. Ind. R. R. 
Co., 13 m., 404; Johnson v. Crawfordsville R. R. Co., 11 Ind. i,80; 
Fairfield C. T. Co. v. Thorp. 13 Conn., 173. 



§ 136.] LIABILITY OF STOCKHOLDERS. 259 

necessity of giving notice of the call to the stockholders 
before bringing an action for the recovery of the amount 
called for. A majority of cases hold that notice is 
unnecessary in the absence of an express provision, either 
in the charter of the company, the statute governing, the 
by-laws, or the subscription, making notice a condition 
precedent to the maintenance of an action. This holding 
is based upon the ground that the contract is a promise 
to pay on demand, and that the commencement of an 
action is a sufficient demand. There are, however, weighty 
authorities on the other side, which seem to the writer 
more in accordance with sound reason, and the dictates 
of justice. ' 

The company is not limited to an action at law for the 
recovery of unpaid subscriptions, several other remedies 
being available. First, a suit may be brought on the 
subscription, a judgment obtained, and the stock sold on 
execution to apply on the judgment. Second, the com- 
pany may bring an action for a breach of the contract, 
and recover as the measure of damages the difference 
between the value of the stock at the subscription price, 
and its market value at the date of default in making 
payment. Third, there is the remedy of forfeiture of 
the stock for non-payment. The common law action to 
collect the subscription as a debt, and forfeiture, are the 

• Carlisle v. Cahawba & Marion R. R. Co., 4 Ala. (N. S.), 70; 
Wear v. Jacksonville & Savannah R. R. Co., 34 111., 593; Scarlett v. 
Academy of Music, 43 Md., 203; Essex Bridge Co. v. Tuttle, 3 Vt., 
398; Spangler v. Ind. & lU. Central R. R. Co., 21 HI., 376; Rutland & 
Burlington R. R. Co. v. ThraU, 35 Vt., 536; Miles v. Bough, 3 Q. B., 
845; Edinburgh, etc., Ry. v. Hibblewhite, 6 M. & W., 707; Alabama 
& Florida R. R. Co. v. Rowley, 9 Fla., 508; Hughes v. Antietam Mfg. 
Co., 34 Md., 316. 



260 LIABILITY OF STOCKHOLDEES. [§136. 

remedies g'enerally. elected. The forfeiture may be 
effected, either by what is termed a ' 'strict foreclosure, ' ' 
where the company takes the stock to itself, or by a 
public sale thereof, and application of the proceeds in 
payment of the subscription. Forfeiture, not being a 
common-law remedy, is only available to the company 
when authorized by statute or charter, or by consent of 
the stockholders indorsed upon the certificate of stock. ' 

"While several remedies are open to the choice of the 
company as now shown, it is held in the larger number 
of cases involving the question, that forfeiture of stock 
cannot be supplemented by an action at law for the 
unpaid balance, if any, due on the subscription ; that the 
election of forfeiture is exhaustive of remedies.* It 
should be observed, however, that there are dissenting 
cases, holding that after forfeiture the company may have 
an action for deficiency, the same as in the case of a 
mortgage foreclosure.' 

' Cook on Stock (3 Ed.) §§ 121, 133, and cases cited; Chase v. East 
Tenn., etc., R. R. Co., 5 Lea, 415; Band v. White Mountains R. R. 
Co., 40 N. H., 79; Barton's Case, 4 DeGex & J., 46; Budd v. Mult- 
nomah St. Ry. Co., 15 Pac. Rep., 659; Westcottv. Minnesota, etc., Co., 
23 Mich , 145; Perrin v. Granger, 30 Vt., 595;-Weeks v. Silver, etc., 
Co., 55 J. & S. (N. Y.), 1; Matter of Long Island R. R. Co., 19 Wend., 
87;s. c, 33 Am. Dec, 429. 

» Cook on Stock (2 Ed.), g§ 124, 125; 1 Potter Corp., § 251; Boone 
Corp., § 119, and cases cited; Delaware, etc., Co. v. Sanson, 1 Binn., 
70; Instone V. Frankford Bridge Co., 2 Bibb., 576; Rensselaer, etc., R. 
B. Co. V. Wetsel, 21 Barb., 56; Freeman v. Winchester, 18 Miss., 577; 
Mann v. Cook, 20 Conn., 178; Rutland, etc. R. R. Co. v. Thrall, 35 
Vt., 536, and many other cases in the same Une. 

' See Carson v. Arctic Mining Co., 5 Mich., 288; Danbury, etc , R. 
R. Co. V. Wilson, 33 Conn. 435; Great Northwestern Ry. Co. v. Ken- 
nedy, 4 Exch., 417, 425. 



§ 136.J LIABILITY OF STOCKHOLDEES. 261 

The forfeiture of a shareholder's stock has the import- 
ant effect of relieving him from liability to the creditors 
of the company ; and this, even, where the debts were 
contracted prior to the forfeiture of the stock. * But a 
stockholder cannot, by his own wiU and act, abandon his 
shares and effect a forfeiture that will discharge him from 
liability on his own subscription.* 

A bill in equity is the ordinary remedy of the creditor 
to enforce his rights ; and it is both appropriate and eflfi- 
cient, inasmuch as it brings all the parties interested in 
the matter before the court, and deals with the equities.' 

Other remedies, however, have been held available to 
creditors. "When the stockholder is in default for non- 
payment of installments after caU, he is a debtor of the 
company ; and this debt, like any other, is subject to 
attachment or garnishment in a suit by a creditor against 
the company. And it has been held, also, that for an 
unpaid subscription, after call, the creditor has a remedy 
by action at law against the delinquent stockholder, who 

' Cook on Stock (3 Ed.), § 127; Macauley v. Robinson, 18 La. An., 
619; Allen v. Montgomery R. R. Co., 11 Ala., 437, 450; Mills v. Stew- 
art, 41 N. Y., 384; Woollaston's Case, 4 DeGex & J., 437; Ex parte, 
Beresford, 2 Macn. & G., 197. 

' Rockville, etc.. Turnpike Co, v. Maxwell, 2 Cranch 0. C, 451; 
Sweny v. Smith. L. R. 7 Eq., 334; Stocken's Case, L. R. 3 Ch., 413; 
Count Phalen's Case, L. R. 9 Eq., 107; Thomas' Case, L. R. 13 Eq., 
437; Ross v. Bank, etc., 19 Pac. Rep.. 243. 

• Cook on Stock (2 Ed.), §§ 304-211; 1 Story Eq. Jur., § 350; Griffith 
V. Mangam, 73 N. Y., 611; Ward v. Griswoldville Mfg. Co., 16Conn., 
593; Shickle v. Watts, 7 S. W. Rep., 374; Christenson v. Eno, 106 N. 
Y., 97, 100; Crawford v. Roher, 59 Md., 590; Hightower v Thornton, 
8 Ga., 486; Adler v. Milwaukee, etc., Co., 13 Wis., 57; Henry v. Ver- 
million, etc., Turnpike Co , 17 Ohio, 187. 



262 8TATUT0ET LIABILITY. [ § 136. 

will be liable in such action to the full extent of his 
unpaid subscription.' 

2. Statutory liability. — Stockholders in a corporation 
are liable only to the extent of the par value of their 
stock, unless made so by statute for the benefit of com- 
pany creditors. Additional liability for this purpose is 
frequently created by charter, or by a general statute. 
But such a statutory provision will be strictly construed 
by the courts, in obedience to a well settled rule of con- 
struction applicable to statutes in derogation of the com- 
mon law.' The statutory liability, being designed for 
the benefit of creditors, can be enforced by them only ; 
and generally the remedy is in a court of equity.' 

A court, in the exercise of its equity power, will make 
a call for unpaid subscriptions, or order the payment of 
the same for the benefit of creditors, when the company 
unjustifiably neglects or refuses so to do, and such action 
becomes necessary to meet corporate obligations. For- 
tunately for the public, it is not discretionary with a 
corporation, or its officers, to deprive creditors of the 
relief due them in justice and equity.* 

' See Cook on Stock (2 Ed.), §§ 201, 203, and cases cited. 

•Bishop Wr. Laws, §§ 119, 189 a; People v. Peacock, 98 m., 172-, 
O'Reilly v. Bard, 105 Pa. St., 569; Chase v. Lord, 77 N. T., 1; Gray v. 
Coffin, 9 Gush., 192; Grose v. Hilt, 86 Me., 22; Dauchy v. Brown, 24 
Vt , 197; Salt Lake City Nat. Bankv. Hendrickson, 40 N. J. Law, 53; 
Davidson v. Kankin, 34 Cal. , 63. 

• Cook on Stock (2 Ed.), §§ 218, 222, and cases cited. 

« Cook on Stock, (2 Ed.) §§ 108, 207; ScoviUe v. Thayer, 105 U. S., 
143; Glenn v. Williams, 60 Md., 93; Hatch v. Dana, 101 U. S., 205; 
Glenn V. Sample, 80 Ala., 159; Marsh v. Burroughs, 1 Woods, 463; 
Boeppler v. Menown, 7 Mo. App., 447; Curry v. Woodward, 53 Ala., 
371. 



§ 136.] DEFECTIVE OEGANIZATION. 263 

Receivers and assignees in bankruptcy of an insolvent 
corporation, representing both the company and its credi- 
tors, are clothed" with the power, and charged with the 
duty, of collecting the unpaid subscriptions, so far as 
may be necessary for the purpose of paying the corpo- 
rate debts. And the appropriate remedy is by bill in 
equity, to which all the delinquent share owners should 
be made parties.' 

3. Liahility from defeoti/ve organization. — To effect a 
legal organization of a corporation, or a joint stock com- 
pany, under statutory authority, all the essential provi- 
sions of the statute must be substantially complied with ; 
and for a faQure in this regard liabilities may accrue to 
• stockholders which would not have arisen under a regu- 
lar organization. "While, as a general rule, a subscriber 
for stock cannot avail himself of a defective organization 
of the company as a defense when sued for calls, nor 
can the company repudiate its contracts on such ground, 
both being estopped from setting up such a defense,' a 
company creditor may proceed against the individual 
members for the recovery of his debt. The doctrine of 
estoppel does not apply to the creditor in such a case, as 
he is seeking to enforce^ not to repudiate a contract.' 

> Cook on Stock, (3 Ed.) § 308; High Rec, (3 Ed.) i; Nathan v. 
Whitlock, 9 Paige, 153; Dayton v. Borst, 31 N. Y., 435: Mean's 
Appeal, 85 Pa. St.. 75; Chandler v. Brown, 77 111., 333; Tobey v. 
Russell, 9 R. I., 58; Stewart v. Lay, 45 Iowa, 604; Clarke v. Thomas, 
84 Ohio St., 46; Phoenix, etc., Co. v. Badger, 67 N. Y , 394; Sawyer 
V. Hoag, 17 Wall., 610, 631; Upton v. Tribilcock, 91 U. S., 45; Pay- 
eon V. Stoever, 3 Dill., 437. 

' See Cook on Stock, (3 Ed.) §§ 183-186, and cases cited; Buffalo & 
A. R. R. Co. V. Cary, 26 N. Y., 75. 

' Lauferty v. Wheeler, 11 Abb. N. C, 838; Chafife v. Ludeling, 27 



264: LIABILITT AB TO TEANSFEES. [§ 136. 

But the mere fact of an irregularity in the organization, 
does not necessarily render the members absolutely 
liable for all the debts of the company. Each will be 
liable to the extent he would have been had the original 
purpose been the formation of a partnership. He wiU 
not be liable on a debt contracted before he was a mem- 
ber;' and it has been held that one who becomes a mem- 
ber subsequently to the attempted organization, taking 
no part therein, or in the management of the company, 
cannot be held liable for its debts." Where, however, 
a general statute authorizes the formation of companies 
for the prosecution of certain kinds of business, an organ- 
ization under it which does not specify its particular 
business will be void as a corporation', and the members 
win become liable as partners.' 

4, Liability as affected hy transfers. — This topic em- 
braces the liability of transferer and transferee ; and, also, 
transfers made prior, and subsequent, to registration in 
the corporate stock book. Shares may be transferred 
at any time after the contract of subscription is made, 
either before or after registration, and also either 
before or after payment in part, or in whole, of 
the subscription price. And where an absolute trans- 
fer in good faith is made, and duly recorded in the cor- 
porate stock book, the transferer is wholly relieved from 

La. An., 607; National Bank, etc., v. Landon, 46 N. Y., 410, 414; 
Ridenour v. Mayo, 40 Ohio St., 9. 

' PuUerv. Kowe, 57 N. Y., 23. 

« DeWitt V. Hastings, 69 N. Y., 518; Stafford Bank v. Palmer, 47 
Conn., 443. 

> Cook on Stock (3 Ed.) §§ 231-284, and cases cited. 



§ 136.] LIABILITY AS TO TEAN8FEES. 265 

all further liability for the subscription price.' The bur- 
den thus lifted from the transferer rests thereafter upon 
the transferee.' 

From the rules now stated, it -would seem to follow 
logically that the transferree is not liable, either to the 
company for an unpaid subscription, or to creditors for 
corporate debts, prior to registration of the transfer, 
until which time the transferer is not relieved from 
liability ; and such is the law. * 

It may happen, that intermediate the contract of trans- 
fer and the registration, calls will be made, or creditors' 
rights intervene, and in such contingency what are the 
relations, liabilities, and rights of the respective parties? 
It has been shown that the transferer is, and the trans- 
feree is not, liable to the company or its creditors until 
registration. While this rule governs as between the 
parties to the transfer on the one hand and the company 
and its creditors on the other, a different relation exists 
between the parties to the transfer themselves, and to 
them, in that relation, equity rules apply. The trans- 
feree, being the real and beneficial owner of the stock, is 

' BUlingBv. Robinson, 94 N. Y., 415; Ex'rs of Gilmore v. Bank of 
Cincinnati, 8 Ohio, 63, 71; Huddersfield Canal Co. v. Buckley, 7 T. R., 
86; Wakefield v. Fargo, 90 N. Y., 213; Chouteau Spring Co. v. Harris, 
20Mo.,382; Allen V. Montgomery R. R. Co., 11 Ala., 437,451; Mc- 
Kenzie v. Kittridge, 24 U. C. C. P., 1; Provincial Ins. Co. v. Shaw, 
U. 0. Q. B., 533. 

' Merimac Mining Co. v. Levy, 54 Pa. St., 327; Upton v. Hans- 
brough, 3 Biss., 417; Webster v. Upton, 91 U. S., 65; HaU v. United 
States Ins. Co., 5 Gill (Md.), 484; Merimac Mining Co. v. Bagley, 14 
Mich., 501; Brigham v. Mead, 10 Allen, 2J5; Hartford, etc., R. R. Co. 
v, Boorman, 12 Conn., 530. 

• See Cook on Stock (3 Ed.), §§ 358, 260, 261, and cases cited. 



5J66 LIABILITY AS TO TEANSFEES. [§ 136. 

equitably bound to respond to calls aiid claims ; and hence 
be may be compelled to indemnify the transferer for 
aU liabilities incurred and paid by him after transfer and 
prior to registration.' 

While title to the stock may pass absolutely by transfer 
from the vendor to the vendee, yet in the hands of the 
latter it may be subject to a corporate lien for a debt due 
from the former to the company at the time of the trans- 
fer. It is well settled that no such lien exists at common 
law ;* but it is equally weU settled that the company may 
have a lien in virtue of a statute, or by charter. Eut 
whether such lien may obtain by force of a by-law can- 
not be considered as settled, there being a contrariety of 
judicial opinion on the question.' 

If a share-holder is compelled to pay a debt of the 
company of which he is a member, he may maintain an 
action against his co-shareholders for contribution. This 
in virtue of the just demand of equity principles, based 
upon the maxim that equaUty is equity. "Where several 
persons are equally bound for the payment of the same 
debt, and are equally relieved on its payment by one of 
them, the plainest dictates of justice require that all 
should contribute, each in proportion to the benefit 
received by him.* 

> Johnson v. Underhill, 53 N. Y., 203; Hutzler v. Lord, 64 Md., 534; 
Kellogg v.. StockweU, 75111., 68; Walker v. Bartlett, 18 C. B., 845; 
Brigham v. Mead, 10 AUen, 345; Griswell v. Bristowe, L. R. 3 C. P., 
113; Davis v. Haycock, L. R. 4 Exch., 371. 

• Cook on Stock (3 Ed.), § 531, and cases cited, Boone Corp. § 134, 
and cases cited. 

« See Cook on Stock (3 Ed.), § 533, et seq.; § 532, and cases cited. 

* 1 Story Eq. Jur., § 493; Pom. Eq., §§ 405, 406; Cook on Stock (? 



§136.] LIABILITY OF PLEDGEES, EXE0UTOE8, ETC. 267 

5. Liahility of pledgees. — A pledgee in whose name 
the pledged stock stands on the corporate books is, as to 
creditors of the company, the absolute owner, and 
liable as such.' The pledgee may, however, avoid this 
liability by having the stock registered in the name of 
another person designated by him, the nominee in such 
case being generally a person of no pecuniary responsi- 
bility, a mere "dummy." ' 

6. Liability of Executors a/nd Admi/nist/rators. — ^The 
liability of a shareholder at the time of his decease 
devolves upon his estate in the hands of his executor or 
administrator. Hence, these personal representatives 
succeed to the liability of decedent, to the extent of the 
property that comes to their hands for the purposes oi 
administration, the same as in case of other charges 
upon the estate.* And the executor or administrator 

Ed.), § 237; Aspinwall v. SaccM, 57 N. Y., 331; Umsted v. Buskirk, n 
Ohio St., 113; Stewart v. Lay, 45 Iowa, 604; Matthews v. Albert; 24 
Md., 537; Hadley v. Eussell, 40 N. H., 109, 113; Farrow v. Bivings, 
13 Rich. Eq., 35. 

' Cook on Stock (3 Ed.), §§ 347, 470; PuUman v. Upton, 96 U. S.. 
338; Autman's Appeal, 98 Pa. St., 505; Crease v. Babcock, 51 Mass., 
535; Eosevelt v. Brown, 11 N. Y., 148; Matter of the Empire Bank, 
18 N. Y., 199; Royal Bank of India's Case, L. R. 7 Eq., 91; Weiker- 
sheim's Case, L. R. 8 Ch., 831; Price & Brown's Case, 3 DeGex & 
Sm., 146. 

» Cook on Stock (3 Ed.), §§ 347, 466, 470; Anderson, Receiver, v. 
Philadelphia Warehouse Co., Ill U. S., 479; Welles v. Larrabee, 36 
Fed. Rep., 866; Henkle v. Salem Mfg. Co., 39 Ohio St., 547; Newry, 
etc., R'y Co. v. Moss, 14 Beav., 64; Hiatt v. Griswold, 5 Fed. Rep., 
573. 

' Baird's Case, L. R. 5 Ch., 735; Thomas' Case, 1 DeGex & Sm., 
579; Evans v. Coventry, 35 L. J. Ch., 489; ExpaHe Gouthwait, 3 Mac. 
& G., 187; Crandall v. Lincobi, 58 Conn., 73; Bailey v. HoUister, 26 
N. Y.. 113. 



268 LIABILITY OF AGENTS; ASSETS, ETC. [§137. 

may become persbnallj liable upon the stock, if he appro- 
priates the assets of the estate to legacies, without mak- 
ing provision to meet the liability of the estate on the 
stock. ' 

Y. lAahiliiy of Agents. — When stock is subscribed for, 
or purchased, by one person as the agent of another, and 
registered on the stock book of the company in the 
agent's name, both the agent and the principal will be 
liable to corporate creditors, who may hold either 
responsible on the stock. But the agent wiU have a just 
and enforceable claim against his principal for any 
charges he may have been compelled to pay on such 
liability." 

§ 137. The assets upon dissolntion of the com- 
pany. — "We have seen that the capital stock and prop- 
erty of the company constitute a trust fund for the bene- 
fit of creditors,' and also that the stockholders are 
entitled to a distributive share of the assets upon dissolu- 
tion of the company, after payment of the corporate 
■debts.* The company is the trustee of this fund, and 
the corporate creditors are the beneficiaries. In virtue 
of the weU settled doctrine of equity, the latter may 
follow and claim the trust property through aU changes 

• Jeflferys v. Jefferys, 24 L. T. Eep., N. S., 177; Thomas' Case, 
eiipra; Cook on Stock (3 Ed.), § 248. 

• Cook on Stock (3 Ed.), § 349, and cases cited. 
» Supra, § 136, sub. 1. 

• Supra, § 134; and see Krebs v. Carlisle Bank, 2 Wall. (C. C), 33; 
James v. Woodruff, 10 Paige, 541; Wood v. Dummer, 8 Mason, 308, 
832; Heath v. Barmore, 50 N. Y., 303; Burrall v. Bushwick E. E. Co., 
75 N. Y., 311; Day v. Postal Tel. Co., 7 Atl. Eep. 608; Mamma v. 
The Potomac Co., 8 Peters, 281, 286. 



§137.] ASSETS UPON DISSOLUTION OF COMPANY. 269' 

of form, SO long as it can be identified, and into whoso- 
ever possession it may pass, except lona fide purchasers. ' 

If the assets are placed in the hands of any person, 
official or otherwise, for distribution, they may be 
reached by creditors, and also by stockholders entitled to- 
a share ; the remedy of the latter being a suit in equity, 
to which the company, as well as the person holding the 
assets, should be made a party." 

The real estate of a corporation, it is now generally 
held, constitutes a part of its assets, and, on dissolution, 
is available to creditors and stockholders, each in their 
order, and according to their respective rights. " It should 
be noticed, however, in passing, that while the weight of 
authority sustains the rule as now stated, there is not 
entire unanimity of adjudications on the question. And, 
moreover, the decisions in some of the States are governed 
by statutes which change the common law rule. 

Important questions have arisen and been much dis- 
cussed in regard to the sale of all the corporate property 
by the directors, or in pursuance of a vote of a majority 
of the stockholders against the wishes of the minority ; 
and especially respecting a sale to another company and 

' Story Eq. Jur., §1253; Pom. Eq., §§1048-1051, 1080; Potter Corp., § 
308; Cook on Stock (3 Ed.), g§ 641, 643. 

' Young V. Moses, 53 Ga., 638. For remedies in some other con- 
tingencies, see Homer v. Carter, 11 Fed. Eep., 363, and Ee Pontius, 
26 Hun, 233. 

« Lum V. Robertson, 6 "Wall., 277; Bacon v. Robertson, 18 How. (U. 
S.), 480; Robinson v. Lane, 19 Ga., 337; Lothrop v. Stedman, 13 
Blatclif., 134; Blake v. Portsmouth, etc., R. R. Co., 39N. H., 435; Fox 
V. Horah, 1 Ired. (N. C), 358; Curry v. Woodward, 53 Ala., 371; 
Powell V. North Mo. E. R. Co., 42 Mo., 63; People v. O'Brien, 111 
N. Y., 1. 



270 ASSETS UPON DISSOLUTION OF COMPANY. [§137. 

taking its stock in payment; or a consolidation with 
another, for the purpose of dissolving the old, and form- 
ing a new company. Without attempting to review the 
discussions on the subject, it may be stated as settled by 
the weight of authority, that neither the directors, nor a 
majority of the stockholders, have power to sell all the 
corporate property against the dissent of a minority, how- 
ever small, unless the sale be made for the purpose of 
paying the debts of the corporation, or with a view to 
its dissolution and a hona fide discontinuance of the busi- 
ness.' In case, however, a corporation becomes finan- 
cially embarrassed, or proves a failing enterprise, it seems 
that a majority of the stockholders may dispose of all the 
corporate property with a view to a dissolution, even 
against the dissent of a minority;" and may accept stock 
of another corporation in payment. But dissenting 
stockholders cannot be compelled to take the stock of 
another company in payment of their interest in the 
assets of the dissolved company; they are entitled to 
cash. 

The shares of stock in the new company thus taken in 
payment for the assets of the old, may be distributed 
among such of the stockholders of the old as consent to 
accept them ; and the balance must be sold for cash, and 

' Abbott V. American Hard Rubber Co., 83 Barb., 578; 4 Blatchf., 
489; Smith v. New York, etc., Co., 18 Abb. Pr., 419, 435; Robbina v. 
Clay, 33 Me., 132; Sheldon, etc., Co. v. Eickmeyer, etc. Co., 56 How. 
Pr., 71; 90 N. Y., 607; Middlesex R. R. Co. v. Boston, etc., R. R. Co. 
115 Mass., 347; Keanv. Johnson, 9 N. J. Eq., 401; Erwin. v. Oregon 
Ry. & Nav. Co., 27 Fed. Rep., 635; Boston, etc., R. R. Co. v. N. Y. & 
N. E. R. R. Co., 13 R. I., 260. And see Cook on Stock (3 Ed.), 
§§ 629, 630. 

' See Lanman v. Lebanon Valley R. R. Co., 30 Pa. St., 42. 



§ 137.] ASSETS UPON DISSOLUTION OF COMPANY. 271 

the proceeds distributed pro rata among the dissentients 
according to their respective interests in the assets of the 
old company.' 

' Cook on Stock (2 Ed.), § 667; State v. BaUey, 16 Ind., 46; KeUey 
V. Mariposa, etc., Co., 4 Hun., 633; McCurdy v. Myers, 44 Pa. St., 
635; Ex parte Bagshaw, L. E. 4 Eq., 341; Tread well v. Salisbury 
Mfg. Co., 7 Gray, 392; Black v. Delaware, etc., Canal Co., 22 N, J. 
Eq., 130. 415; s. c. 24 Id., 455; Buford v. Keokuk, etc., Packet Co., 8 
Mo. App., 1S9. 



272 MONET. [ §§ 138, 139. 



CHAPTEE XIY. 

MISCELLANEOTTS SPECIES OP PERSONAL PROPERTY NOT 
HEREIN-BEFORE SPECIFICALLY TREATED. 

Sections 138-140. Money. 
141-142. Debts. 
143-150. Mortgages. 

151-153. Bottomry, and respondentia, bonds. 
154^157. Rent. 

I. Money. 

§ 138. What it is. — Money, in the ordinary and 
general acceptation of the term, means that which consti- 
tutes the common medium of exchange in a civilized 
nation. It includes coin, gold and silver and other 
metals stamped by public auihority, and used as the 
standard of values and medium of commerce ; and also 
any currency usually and lawfully employed in business 
as the equivalent of coined metals, such as bank notes 
and the like.' 

§ 139. Constitutional money. — It is claimed that 
under certain provisions of the United States Constitution 
the term "money" is limited to, or synonymous with, 

' Bouv. L. Diet., "Money;" Web. Unab'gd, "Money;" BoUes on 
Banks, § 83; Wharton v. Morris, 1 Dall., 124; Lee v. Biddis, Id., 175; 
Hopson V. Fountain, 5 Humpb. (Tenn.), 140: Wyerv. Dorchester, etc., 
11 Cush. 51; Richard V. Bankes, 18 East, 20; Parker v. Merchant, 1 
Phil. (N. C), 355; In re. Powell, Johns., 49; s. c. 5 Jur., N. S. 331; 
Fryer v. Ranken, 11 Sim., 55; Vaisey v. Reynolds, 5 Russ., 12; 
Jenkins v. Fowler, 63 N. H., 244; Bouv. L. Diet., "Money had and 
Received." And. L. Diet. "Money." 



§139.] CONSTITUTIONAL MONET. '-.■". 

coin. These provisions are found in Art. I, Sees, s pnd 
10. Sec. 8 confers upon Congress the power "to cmn 
money, regulate the value thereof, and of foreign coin." 
Sec. 10 provides that "No State shall * * * coin 
money ; emit bills of credit ; nor mal;e anything hut gold 
and silver coin a tender in payment of dehts.'''' These 
provisions seem to indicate that the framers of the Con- 
stitution intended to make gold and silver coin the money 
of the United States in exclusion of other currency, and 
also the only legal tender in payment of debts. Congress 
seems to have favored this view from the fact that, until 
recently copper and nickel coins, although authorized to 
"pass curi-ent" as are the coins of foreign nations, the 
value thereof being regulated by Congress under the 
power 'granted by the Constitution," were not, like 
gold and silver, declared to be " legal tender in payment 
of debts. ' ' ' But under the exigencies of the late civil 
war Congress authorized the issuance by the government 
of notes, generally known as ' ' legal tenders' ' or ' 'green- 
backs," and provided in effect that these notes should 
serve the same purpose as a circulating medium, and 
represent the same value, as gold and silver coin of the 
same denominations. The several acts of Congress known 
as the "Legal Tender Acts," were passed February 25, 
1862; July 11, 1862; and March 3, 1863. These acts 
made the notes which they authorized ' 'receivable in pay- 
ment of all loans made to the United States, and of all 
duties, debts, and demands due to the United States, 
except duties on imports and interest on the public debt, 

« Art. I, §§ 8, 10. 

» Bouv. L. Diet. "Money;" 1 Sch. Pers Prop. p. 440; Whart. Com. 
Am. Law, § 413; Legal Tender Cases, 12 Wall., 457. 
IS 



274 OONSTITTJTIONAL MONET [ § 139. 

and of all claims and demands against the United States 
substantially, except for interest on its coin-bearing 
loans." It was further provided that these notes should 
"be lawful money and legal tender in payment of all 
debts, public and private, within the United States." 

It is not surprising that an earnest controversy arose 
in the country, and in the courts, in regard to the con- 
stitutionality of the ' 'Legal Tender Acts. ' ' The Supreme 
Court of the United States, in Hepbv/rn v. Griswold^ 
decided by a majority of one judge, that the provision 
making such notes a legal tender, as to debts contracted 
both before and after the enactment of the statute, was 
unconstitutional. Subsequently, on the addition of two 
new judges to the bench, the decision in Hepburn v. 
Griswold was overruled, and the constitutionality of the 
statute affirmed by a majority of one.' The State courts 
furnish numerous decisions in harmony with the last cited 
cases ; some in obedience to the authority of the United 
States Supreme Court, and others on an independent 
judgment of the law.' Nevertheless, in view of the 
clear language of the Constitution, the construction 
generally given it by Congress and the courts, until the 
preservation of the national life required extraordinary 
measures, and the divided opinion of the judges of the 
United States Supreme Court, there is ground for the 
opinion, widely entertained, that the Legal Tender Acts, 

> 8 WaU., 603. 

• Legal Tender Cases, 13 Wall., 457. 

•Smith V. Smith, 1 Thomp. & Cook (N. Y.), 63; Smith v. Wood, 
87 Tex., 616; Metropolitan Bank v. VanDyok 27 N. Y., 400; Schol- 
lenberger v. Brinton, 53 Penn. St., 9, 100; Latham v. United States, 
1 Court CI., 149; George v. Concord, 45 N. H , 484; Carpenter v. 
Northfield Bank, 89 Vt., 46; and many others. 



§140.] OONTEAOT PAYABLE " IN SPECIE." 275 

in so far as they substitute paper for coin in payfaent of 
debts generally, and make such paper legal tender, can 
only be justified and sustained as a temporary measure 
of controlling necessity.' 

Although a debt created by a contract to pay money • 
generally may, as the law now stands, be discharged by 
legal-tender notes, a contract may be made expressly or 
impliedly, requiring payment "in specie," or in "gold 
and silver coin," under which these notes cannot be 
substituted for gold and silver, and will not constitute a 
legal tender." 

The States, it is held, have the constitutional authority 
to precribe the currency in which debts due to them- 
selves for taxes may be paid,' and creditors may stipu- 
late in contracts the currency in which debts due them 
thereunder may, or shall, be paid. * 

§ 140. Money subject to levy under execution — 

Money, being personal property, is subject to levy by 
execution against the property of the defendant ; and, as 
a general rule, must be paid over by the oflficer as so 
much money collected, without exposing it for sale.' 

> 1 Sch. Pers. Prop., pp. 445-448; Whart. Com. Am. Law, § 442. 

•Legal Tender Cases, 13 Wall., 457; Trebilcock v. Wilson, Id., 
687; Bronson V. Rhodes, 7 Id., 239; Hinneman v. Rosenback, 89 N. 
Y., 98; Essex Co. v. Pacific Mills, 14 Allen, 389; Myers v. Kaufman, 
37 Ga., 600; Bank of Commonwealth v. VanVleck, 49 Barb., 508; 
Frank v, Calhoui, 59 Pa St., 381; The Surplus, etc., of the Edith, 6 
Ben., 144; Bowen v. Darby, 14 Fla., 202; Maryland v, Railroad Co., 
23 Wall., 105. 

' Bronson v. Rhodes. 7 Wall., 339; Carpenter v. Atherton, 25 Cal., 
564; Lane v. Gluckauf, 28 Id., 388; Linn v. Minor, 4 Nev., 462. 

* Lane County v. Oregon, 7 Wall , 71. 

» Smith's Sheriffs, etc., p. 326. 



276 MONET. DEBTS. [ § 14rl. 

But in the New York Code of Civil Procedure,' it is 
provided that where the money levied upon consists of 
gold coin, the officer must sell it like other personal 
property, unless he is otherwise directed by an order of 
the judge, or of the judgment in the particular cause. 

Money is only subject to levy, however, when it be- 
longs to the judgment debtor, and is within his control. 
In obedience to this rule it has been held that money 
collected on an execution, while in the hands of the col- 
lecting officer, cannot be levied upon under an execution 
against the person for whom it was collected, the money 
not being strictly his till actually paid over.' 

So as to money deposited in a bank by the judgment 
debtor, for such money, under an ordinary general 
deposit, becomes the property of the bank ; the relation 
of debtor and creditor between the bank and the depos- 
itor is created." 

In application of the same rule it has been held, that 
money collected by an attorney for the judgment debtor 
is not subject to levy by execution against the latter, 
while the money remains in the attorney's hands.* 

II. BMs. 

§ 141. Definition and classification. — The term 
"debt" is from the Latin debere, signifying to owe; and 

> § 1410. 

' Dubois V. Dubois, 6 Cowen, 499; Baker v. Kenworthy, 41 N, Y., 
215; Turner v. Tendall, 1 Cranoh, 116. 

• Canrole v. Cone, 4 Barb., 220; National Citizens' Bank v, Howard, 
3 How. Pr. Rep. (N. S.), 513; Commercial Bank of Albany v. 
Hughes, r Wend., 94. 

« Maxwell v. McGee, 13 Cush., 137. 



§ 141.] DEBT OF EECOKD. 277 

in a general sense may be defined as that whicli is due a 
person under any 'form of obligation or promise; or, 
more concisely stated, that which is owed. But, in 
certain species of contract the term is ordinarily used in 
a more restricted sense, signifying a debt of record, or a 
debt by contract under seal, termed a specialty. There 
is a third and quite extensive class of debts under the 
general definition above, founded on contracts not under 
seal, and termed simple contract debts.' 

The classification of actions, including the action of 
debt, is herein omitted as properly belonging to the subject 
of pleading. It does not strictly follow the above divi- 
sions, and there is, moreover, a lack of uniformity in the 
decisions on the subject. 

The different classes of debts will now be noticed. 

1. A debt of record. — This is briefly and well defined 
by Blackstone, as ' 'a debt due by the evidence of a court 
of record.'" And a court of record is defined by the 
same author as that, "where the acts and judicial pro- 
ceedings are enrolled in parchijient for a perpetual 
memorial and testimony. ' ' ' With the recognition of the 
fact that paper may now, as a general rule, be substi- 
tuted for parchment, Blackstone' s definition is sufficiently 
accurate for the present time. It must not be assumed, 
however, that the mere fact that a record is kept deter- 

' 1 Bouv. L. Diet., "Debt.;" 1 Soh, Pers. Prop., pp. 459-461; "Wil- 
liams Pers. Prop., pp. 96, 104, 105, 109; 2 Black. Com., p. 465; 3 Id., p. 
154; Gray v. Bennett, 3 Met., 523; Cable v. McCune, 26 Miss., 371; 
Mildam Foundry v. Hovey, 21 Pick., 417. And. L. Diet. "Debt," 

« 2 Black. Com , p. 465. 

• 3 Black. Com., pp. 24, 25. 



278 DEBT OF RECORD. [ § 14:1. 

mines the character of a court.' Another definition of a 
court of record is furnished by Chief Justice Shaw, of 
Mass., in ex parte, Gladhill," giving more fully the char- 
acteristics and distinctive qualities of these courts. In 
passing upon the character of the police court in Lowell, 
after mentioning its organization and functions, he says : 
"This indicates the establishment of a court, or judicial, 
organized tribunal, having attributes and exercising 
functions, independently of the person of the magistrate 
designated generally to hold it, and distinguishes it from 
the case of a justice of the peace, on whom, personally, 
certain judicial powers are conferred by law. ' ' * 

It should be noticed, also, that the character of a court, 
as to whether of record or otherwise, as well as its juris- 
diction, powers and functions, is often determined by 
statute. 

The judgment roll of a court of record was regarded 
by the English common law of such high authority that 
its truth could not be questioned, the settled rule and 
maxim being ' 'that nothing shall be averred against a 
record, nor shall any plea, or even proof, be admitted to 
the contrary. " And if the existence of the record was 
denied, it had to be tried by nothing but itself, on bare 
inspection.* But this rule, wherever existing, does not 
prevent the impeachment of a judgment for want of juris- 
diction in the court which assumed to render it, or for 
fraud. It is absolutely essential to the validity of a 
judgment, that the court rendering it should have juris- 

' See 1 Bouv. L. Diet., "Court of Record," and cases there cited. 
» 8 Met., 168, 170. And. L. Diet. " Court of Record." 

• See 8 Black. Com., p. 25; 1 Sch. Pars. Prop., 461, et seq. 

♦ 3 Black. Com., pp. 24, 25. 



§ 14rl.] DEBT OF BECOED. 279 

diction, both of the subject matter, and of the parties. 
Without such jurisdiction the judgment is simply a nul- 
lity; and fraud vitiates everything with which it is 
tainted. ' But, as a general rule, it is not competent to 
show a want of jurisdiction in opposition to the recitals 
in the record, provided the court be competent, by its 
constitution, to decide on its own jurisdiction. There is a 
distinction in this regard between courts of general, and 
of special, or limited, jurisdiction. In the latter, the 
record of judgment should contain all the facts essential 
to confer jurisdiction ; in the former, jurisdiction will be 
presumed until the contrary be shown. In Orignon v. 
Astor,^ the distinction is thus stated : ' 'The true line of dis- 
tinction between courts whose decisions are conclusive if 
not removed to an appellate court, and those whose pro- 
ceedings are nullities if the jurisdiction does not appear on 
their face, is this : A court which is competent by its 
constitution to decide on its own jurisdiction, and to exer- 
cise it to final judgment without setting forth in its pro- 
ceedings the facts and evidence on which it is rendered, 
whose record is absolute verity, not to be impugned by 
averment or proof to the contrary, is of th& first descrip- 
tion ; there can be no judicial inspection behind the judg- 
ment, save by appellate power. A court which is so con- 
stituted that its judgment can be looked through for the 
facts and evidence which are necessary to sustain it, 



' Towns V. Springer, 9 Ga., 130; Miller v. Barlseloo, 8 Ark., 318; 
Wicks V. Ludwig, 9 Cal., 173; Johnson v. Johnson, 30 111., 215; Clark 
V. Bryan, 16 Md., 171; Westervelt v. Lewis, 2 McLean, 511; Bryan v. 
Blythe, 4 Blackf. (Ind.)i 249; Smith v. Knowlton. 11 N. H., 191; Bar- 
rett V. Crane, 16 Vt., 846. 

' 2 How. 319, 



280 DEBT OF EEOOED. [ § 141. 

whose decision is not evidence of itself to show juris- 
diction and its lawful exercise, is of the latter descrip- 
tion; every requisite for either must appear on the face 
of their proceedings, or they are nullities. ' ' ' 

In courts of general jurisdiction the question must be 
raised, and the evidence showing a want of jurisdiction 
produced, on the trial ; as a rule the judgment cannot be 
impeached collaterally, except for fraud. ' 

As to whether foreign judgments, rendered by a court 
of general jurisdiction, may be impeached for want of 
jurisdiction, by going behind the record, the authorities 
are not in agreement, so far, at least, as the judgments 
of our sister States -are concerned. These States being 
independent sovereignties, judgments rendered in the 
courts of one State are foreign judgments in every other, 
unless they are placed on an equality with domestic 
judgments by the Constitution of the United States. 
That instrument provides that ' ' full faith and credit 
shall be given in each State to the acts, records, and 
judicial proceedings of every other State ; ' ' and author- 
izes Congress to prescribe the manner of proving such 
acts, records and proceedings.' Under this authority 
Congress provided that records and judicial proceedings, 
when authenticated as directed by the act, shall receive 
such faith and credit in every court within the United 
States as they have by law or usage in the courts of the 

' And see Bouv. L. Diet. , "Jurisdiction," suba 4 and 5 and the cases 
there cited. And. L. Diet. "Jurisdiction." 

« Hartman v. Ogborn, 54 Pa. St., 120; Fisk v. Miller, 30 Tex., 579; 
Lewis V. Rogers, 16 Pa. St., 18; Thorn v. Newsom, 64 Tex., 161; Hall 
V. Durham, 109 Ind., 434. 

> Art. 4, § 1. 



§ 141. J DEBT OF EECOED. 281 

State from whence they are taken." Under these pro- 
visions, it would seem that judgments recovered in one 
State ought to have the same force and effect in every 
other as domestic judgments. But the courts have not 
aJl taken this view, at least in regard to discrediting the 
record on the question of jurisdiction.' 

If the record of a judgment in a sister State may be 
attacked collaterally, and the record discredited, when it 
comes under judicial cognizance in other States, a fortiori 
may a judgment rendered by a court in a foreign country 
be impeached in like manner and on the same grounds. 

That a judgment, foreign or domestic, may be 
impeached collaterally for fraud, by third parties whose 
rights or interests are endangered or injured thereby, is 
well settled. ' And a court of equity may vacate and set 

> Act of May 26th, 1790; U. S. B. S., sec. 905. 

' See Starbuck v. Murray, 5 Wend., 148; Bradshaw v. Heath, 13 
"Wend., 407; HaU v. Wilhams, 6 Pick., 233; Gleason v. Dodd, 4 Met., 
333; Norwood V. Cobb, 24 Tex., 551; Knowles v. Gas Light Co., 19 
Wall., 58; Kerr v. Kerr, 41 N. Y., 372; (but see Hunt v. Hunt, 73 
N. Y., 317, 240); Kerr v. Coudy, 9 Bush (Ky.), 872; Pennywitv. 
Foote, 27 Ohio St., 600; and Nepton v. Leaton, 71 Mo., 358; which 
■discriminate in favor of domestic judgments; Newcomb v. Peck, 17 
Vt., 303; Wilcox v. Kassick, 2 Mich., 165; Bimelar v. Dawson, 5111., 
-536; Roberts v. Caldwell, 5 Dana, 512; Lincoln v. Tower, 2 McLean, 
473; Caughran v. Gilman, 72 Iowa, 570; Eankin v. Barnes, 5 Bush. 
(Ky.), 30; Wetherill v. StiUman, 65 Pa.^St., 105; Galpin v. Page, 18 
Wall., 350; and Hanley v. Donaghue, 116 U. S., 1; which give more 
■effect to the provision of the U. S. Constitution and the legislation 
of Congress above mentioned. 

« Thompson's Appeal, 67 Pa. St, 175; Atkinson v. Allen, 13 Vt., 
■619; Hall v. Hamlin, 3 Watts (Pa), 354; People v. Phoenix Bank, 7 
Bosw., 30; Lewis V. Rogers, 16 Pa. St., 18; Dixey v. Pollock, 8 Cal. 
570; Willard v. Whitney, 49 Me., 235; Whetstone v. Whetstone, 31 
Iowa, 376; Cowin v. Toole, Id., 513. 



282 EEOOGNIZANOE. [ § 14sl. 

aside a judgment, at the instance of parties or privies, 
where it has been procured by collusion, and is injurious 
to their interests. ' 

But a judgment upon the merits, by a competent court, 
having jurisdiction over the subject matter and the 
parties, while unreversed, and not set aside or vacated, 
is binding and conclusive upon the parties and privies, 
both as to law and fact, in respect to all matters actually 
litigated in the action, and also all matters which might 
have been adjudicated under the pleadings.' ^ 

The effect of foreign judgments as res judicata is not 
so well established. It is generally agreed,, however, 
that foreign judgments in rem, when not impeached for 
want of jurisdiction or fraud, have the same force and 
effect as domestic judgments. But in respect to the 
conclusiveness of foreign judgments in personam,, the 
authorities are not in agreement." The scope of this 
work will not permit a discussion of this point. 

2. Recognizance. — A debt may also be created by 
recognizance, which is an obligation entered' into before 

» Field V. Flanders, 40 lU., 470; Dexter v. Voorhies, 81 N. Y., 153; 
Hunt V. Hunt, 72 Id., 217; Harbaughv. Kohn, 53 Ind., 243; Harris v. 
Cornell, 80 lU., 54; Doughty v. Doughty, 27 N. J. Eq.,'315; Craft v. 
Thompson, 51 N. H., 536; Holland v. Trotter, 23 Gratt., 136; Graham 
V. Eoberts, 1 Head, 56, 59; Huxley v. King, 40 Mich., 73. 

•CampbeU v. Strong, Hemp., 285; HoUisterv. Abbott, BIN. H., 
443; Wall v. Wall, 28 Miss., 409; Warburtonv. Aken, 1 McLean, 460; 
Swiggart v. Harber, 5 111., 364; LaGrange v. Ward, 11 Ohio, 257; 
HammeU v. Thurmond, 17 Ark., 203; Housemire v. Moulton, 15 Ind., 
367; Hart v. Jewett, 11 Iowa, 276; Page v. Esty, 54 Me., 319; People 
V. Smith, 51 Barb., 360; Gardner v. Buckbee, 8 Cow., 120; Dick v. 
Webster, 6 Wis., 481; Stockton v. Ford, 18 How., 418; Mathews v. 
Durgee, 17 Abb. Pr., 356; FairchUd v. Lynch, 99 N. Y., 359. 

» 1 Greenl. Ev., §§ 541, 546. 



§ 141.] SPECIALTY DEBTS. 283 

a court or oflBcer duly authorized for that purpose, with 
a condition to do, or cause to be done," some particular 
act which is therein specified. This undertaking by the 
cognizor is made a record of the court, and thus becomes 
an obligation of record. The undertaking may be made 
by bail, in civil cases, conditioned that they will pay the 
debt, interest and costs recovered by the plaintiff ; and 
for other purposes under statutes ; or, in criminal cases, 
conditioned for the appearance of a party before the 
proper court, to answer to such charges as are or shaU'be 
made against him. ' A recognizance taken by a court of 
inferior jurisdiction, must contain sufficient recitals in the 
condition to show that the court has jurisdiction of the 
subject matter, or the recognizance will be void; the 
same rule applying to a recognizance as to a judgment by 
such a court." 

3. Specialty debts. — The second class of debts are what 
are termed, in brief, specialties, that is a deed, or con- 
tract under seal. It includes a sealed conveyance of real 
estate; .a deed-poll, that is, a deed from one to another 
who does not join in it ; an indenture, that is a deed in 
which two or more persons join in mutual covenants ; 
bonds; and, in short, all writings obligatory under 
seal.* 

' 2 Black. Com., p. 843; 2 Bouv.L. Diet, "Recognizance;" Wil- 
liams' Pers. Prop., p. 105; Eace v. Mississippi, 25 Miss., 54. 

» Bridge v. Ford, 4 Mass., 641; State v. Smith, 2 Me., 62; Dodge v. 
KeUock, 13 Me., 136; Commonwealth v. Loveridge, 11 Mass., 337; 
Vose V, Deane, 7 Mass., 280; Darling v. Hubbell, 9 Conn., 850; State 
V. Whittaker, 19 La. Ann., 143; State v. Eandolph, 36 Mo., 213; Com- 
monwealth V. Otis, 16 Mass., 198; Dow v. Prescott, 13 Mass., 419. 

» 2 Black. Com., p. 465; Bishop Cont. (Enl. Ed.), §§ 104-110; Wil- 
liams Pers. Prop., p. 106; 1 Sch. Pers. Prop., p. 465; Benson v. Ben- 



284: DEBTS, HOW DISCHAEGED. [ § 142. 

The essentials of a valid specialty are substantially the 
same as any other valid contract, with a seal added. A 
specialty is regarded in law as superior to an unsealed 
instrument ; and hence, if the parties to a simple con- 
tract — that is an unsealed contract — enter into a spe- 
cialty on the same matter, and co-extensive therewith, 
the former is merged in and extinguished by the latter. ' 
It was an early and well established doctrine of the 
common law, that a specialty cannot be varied or abro- 
.gated by words, written or unwritten, if they are not 
under seal. But this rule has been modified, if not 
wholly reversed, as appears by modem authorities.* 

4. Svrwple contract debts. — ^This is the lowest class of 
contract debts, and faUs under the general definition 
above given in the beginning of this section. It includes 
all contracts not under seal, both oral and written, and 
embraces a large proportion of the debts growing out of 
the various departments of business, which furnish the 
subjects of litigation.' 

§ 142. Debts, how discharged. — There are various 
ways in which debts may be discharged, or the debtor 
released from his legal obligation ; as payment ; accord 

Bon, 1 P. Wms., 130, 131; Harriot v. Thompson, Willes, 186, 189; 
Laidley v. Bright, 17 W. Va., 779; Seymont v. Street, 6 Neb., 85; 
Bank of United States v. DormaUy, 8 Pet., 361, 371. 

' Bishop Cent. (Enl. Ed.), § 129; 1 Chit. Cont. (11 Am. Ed.), 9; Rob- 
bins V. Ayers, 10 Mo., 538; Banorgee v. Hovey, 5 Mass., 11; Bhoads 
V. Jones, 92 Ind., 328; Boale v. Mayor, 19 C. B. N. S., 76; Sharp v. 
Gibbs, C. B. N. S., 527. 

" Bishop Cont. CBnl. Ed.), §§ 180-137; Canal Co. v, Ray, 101 U. S., 
522, 527. 

» 2 Black. Com., p. 466; Williams' Pers. Prop., p. 110; Bishop Cont. 
(Enl. Ed.), § 168, et seq. 



§ 142. J ACCORD AND SATISFACTION. 285 

and satisfaction ; bankruptcy ; release ; rescission ; lapse 
of time ; novation ; former recovery ; and, generally, by 
performance of the condition. These wiU now be briefly 
noticed. 

1. Payment. — This subject has already been suffi- 
ciently considered. ' 

2. Accord cmd satisfaction. — This is an executed 
agreement between the parties, made by the debtor, and 
accepted by the creditor or claimant, in satisfaction and 
discharge of the original debt or damage.' A mere 
unexecuted agreement by way of accord, will not dis- 
charge the original obligation, nor bar an action upon it, 
unless the agreement itseK is made the satisfaction. The 
creditor or claimant may accept a new promise in satis- 
faction of his debt or claim.* The effect of the new 
agreement, whether in itself a satisfaction, is a question 
of construction. If "the new promise be founded upon a 
new and valid consideration, and is binding on the 
original promisor, it wiU generally warrant, if not 
require, a construction making the new, a satisfaction of 
the old, promise;' and, as in other cases of contract, the 

' Supra § 113. 

» 2 Pars. Cont. (7 Ed.), p. 681, et aeq.; 1 Bouv. L.Dict. "Accord;" 
3 Black. Com., p. 16; 2 Greenl. Ev., § 28._ And. L. Diet. "Accord." 

• 2 Pars. Cont. (7 Ed.), p. 683; Cock v. Honychurch, T. Raym.,203; 
2Keble, 690; Pey toe's Case, 9 Rep., 79 b.; Watkinson v Inglesby, 5 
Johns., 386; Frost v. Johnson, 8 Ohio, 393; Woodruff v. Dobbins, 7 
Blackf., 582; Ballard v. Noaks, 2 Pike, 45; Brooklyn Bank v. De- 
Grauw, 23 Wend., 342; Bryant v. Proctor, 14 B. Mon., 457; Bigelow 
V. Baldwin, 1 Gray, 245; Babcock v. Hawkins, 33 Vt., 561; Simmons 
V. Clark, 56 Dl., 96; Pettis v. Ray, 12 R. I., 344. 

* Good V. Cheeseman, 3 B. & Ad., 704; Evans v. Powis, 1 Exch., 
907; Bayley v. Homan, 3 Bing. (N. C), 631; Wentworth v. BuUen, » 
B. & C, 850. 



286 KELEASE. [ § 142. 

intention of the parties will be influential in determining 
the construction. 

In case of an undisputed debt for a specific sum, or of 
a claim for liquidated damages, the acceptance by the 
creditor, or claimant, of a less sum in satisfaction, will 
not bar an action for the balance.' If, however, the 
promise of a smaller sum be made upon additional 
security by a third party, or any other new and valid 
consideration, the promise and payment will work a 
satisfaction.' 

It is held that an accord and satisfaction made before 
default in payment or performance by the debtor cove- 
nantor, is not a bar to an action for a subsequent breach.* 

3. Banhruptcy. — This subject has been sufficiently 
discussed for the present purpose, under the head of 
"Insolvency,"* to which the reader is referred. 

4. Release. — As ordinarily used, the term "release" 
may be defined the giving up or surrender, in any man- 
ner, of a claim or right. It may be effected by the vol- 
untary act of the parties, intended as a surrender, or by 
operation of law. * A consideration is essential to the 
vahdity of a release by the act of the parties, and there 

' Harriman v. Harriman, 12 Gray, 341; Bunge v. Koop, 5 Eob., 1; 
Ryan v. Ward, 48 N. Y., 304; Pinnel's Case, 5 Rep., 117; Thomas v. 
Heathom, 2 B. & C, 477; Blanohard v. Noyes, 3 N. H., 518; Wheeler 
V. Wheeler, 11 Vt., 60; Bailey v. Day, 36 Me., 88. 

» Keeler t. Salisbury, 33 N. Y., 648; 3 Pars. Cont., pp. 619, 620, and 
cases there cited; 2 Greenl. Ev., § 28, and oases cited. 

' Healy v. Spence, 8 Exch., 668; Mayor of Berwick v. Oswald, 1 
EI. & B., 295; Kay v. Waghom, 1 Taunt., 428; Smith v. Brown, 8 
Hawks, 580; Harper v. Hampton, 1 Harr. & J., 673. 

« Supra, §§ 71-74. 

» 2 Bouv. L. Diet., "Release;" Bishop Cont. (Enl. Ed), § 850. 



§ 142.J RELEASE. 28T 

must, therefore, either be a consideration ia fact, or a 
seal, which imports a consideration, and, as a general 
rule, estops a party in law from denying it. ' But, while 
the seal may estop a party in law from denying a con- 
sideration, it does not estop a court of equity from look- 
ing behind it for the facts, and of granting such relief as 
the equities demand.' And in some of the States of the 
Union, the want or failure of consideration is held to be 
a good defense to an action on a specialty ; the seal being 
presumptive evidence of consideration, but not conclu- 
sive.' In some other States a seal is rendered unneces- 
sary by statute, an unsealed, being made equally effect- 
ual with a sealed, instrument.' 

As instances in which a release may be effected by 
operation of law, may be mentioned the case of a release 
of one of two or more promisors or obligors, which 

' Bishop Cont. (Enl. Ed.), §§ 51, 83, 119, 374, 851, 853, 874; Harris 
V. Harris, 33 Gratt., 737; Van Valkenburgh v. Smith 60 Me., 97; 
Sharingtonv. Stratton, 1 Plow., 298, 309; Page v. Trufant, 3 Mass., 
159, 163; Fallows v. Taylor. 7 T. R., 475; Cooch v. Goodman, 3 Q. B., 
580; Burkholder v. Plank, 19 Smith, (Pa.), 335; Kidder v. Kidder, 38 
Pa. St., 368; Seymour v. Minturn, 17 Johns., 169; Jackson v. Stack- 
house, 1 Cow., 133. 

» Bishop Cont. (Enl. Ed.), §§ 120, 131; Listerv. Hodgson, Law Eep., 

4 Eq., 30, 36; JefEerys v. JefEerys, Craig & P., 138; Keflferv. Grayson, 
76 Va., 517; Logan v. Plummer, 70 N. C, 388; Hazzard v. Irwin, 18 
Pick., 95, 106; Obert v. Hammel, 3 Harr., 73; lies v. Cox, 83 Ind., 
677; Thorn v Thorn, 51 Mich., 167; Coranth v. Forsyth, 68 Ga., 560; 
Hoydon v. Green, 56 Iowa, 733. 

' Pierce v. Wright, 33 Tex., 631; Greathouse v. Dunlap, 3 McLean, 
303; Kinnebrew v. Kinnebrew, 35 Ala., 628; Stoval v. Bamett, 4 
Litt., 307; Ring v. Kelley, 10 Mo. App., 411; Campbell v. Thompkins, 

5 Stew. Oh., 170; Aller v. Aller, 11 Vroom., 446. 

* McKinley v. Miller, 19 Mich., 142, 151; McCurtie v. Stevens, 13 
Wend., 537. 



288 kelease; eescission. [§142. 

operates as a discharge of all ; ' a release by one of sev. 
eral joint promisees is effectual as against all;' a cove- 
nant never to sue ; ' and a bond or covenant to save harm- 
less and indemnify the debtor against his debt, is a 
release of the debt.* And generally, whatever may be 
the form, or words, of the instrument, it wiU operate as 
a release, provided it clearly manifests the purpose of the 
creditor to discharge the debt and the debtor. 

It was a common law doctrine that an obligor could 
only be released by an instrument of as high dignity as 
that by which he was bound, and hence, when obligated- 
under seal, he could be released only by a sealed instru- 
ment. But the trend of modern authority is against 
this doctrine; it being held on high authority that a 
sealed obligation may be released by parol. * And it has 
been held that a contract which a statute requires to be 
in writing may be released by parol. ' 

5. Rescission. — In case of a debt arising upon contract, 
the parties by mutual consent, may rescind the contract 

' Lacy V. Kinnaston, 3 Salk., 398; Rex v. Bayley, 1 Car. & P., 435; 
Rowley v. Stoddard, 7 Johns., 207; Willings v. Consequa, Pet. C. C, 
801; Campbell v. Brown, 20 Ga., 415; United States v. Thompson, 
Gilp., 614; Myrick V. Dame, 9 Cush., 348. 

'Myrick v. Dame, last cited; Wilkins v. Lindo, 7 M. & W., 81; 
Wild V. Williams, 6 M. & W. 490; Eastman v. Wright, 6 Pick., 816; 
Bruen v. Marquand, 17 Johns., 58; Morse v. Bellows, 7 N. H., 549. 

• Cuyler v. Cuyler, 3 Johns., 186; Jackson v. Stackhouse, 1 Cow., 
133; Dew v. Jeffries, Cro. Eliz., 353; White v. Dingley, 4 Mass., 
483; Reed v. Shaw, 1 Blackf., 345; Garnett v. Macon, 6 Call, 308. 

* Clark V. Bush, 8 Cow., 151. 

' Bishop Cont. (Enl. Ed.), §§ 180-137, 852; Canal Co. v. Ray, 101 U. 
S., 533, 537. 

" Gross V. Nugent, 5 B. & Ad. 58, 65, 66; Cummings v. Arnold, 3 
Met., 486; Stearns v. HaU, 9 Cush., 31. 



§ 142. J NOVATION. 280 

and thus discharge the debt. It has been held, however, 
that in a contract of sale, where the property has passed, 
as much formality will be required to re-vest the title in 
the vendor, as against the vendee's creditors, as was nec- 
essary to transfer the title to the vendee.' In case of a 
fraudulent sale, the defrauded party may, on discovery of 
the fraud, rescind the contract and relieve himself from 
all liability thereunder, provided the parties can be placed 
in statu quo." 

6. Lapse of tvme. — Discharge by lapse of time has 
been considered inder the head of "Limitations," ' and 
requires no further discussion in this connection. 

Y. Novation. — This is briefly and comprehensively 
defined by Bouviere thus : "The substitution of a new 
obligation for an old one, which is thereby extin- 
guished. ' ' * 

For the present purpose it is only necessary to notice 
two kinds of novation : First, when a new debt takes the 
place of an old one, thus discharging it, the debtor and 

' Quincy V. Tilton, 5 Me., 277; State of Maine v. Intoxicating 
Liquors, 61 Me., 520; Gleason v. Drew, 9 Me., 81;Beecherv. Mayall, 
16 Gray, 376. 

» Voorhies v. Earl, 2 HiU, 292; Lucy v. Bundy, 9 N. H., 278; Miner 
v. Bradley, 22 Pick., 457; Coolidge v. Brigham, 1 Met., 550; Fullager 
V. Eeville, 3 Hun, 600; Higham v. Harris, 108 Ind., 246; Prentiss v. 
Russ, 16 Me., 30; Downer v.. Smith, 83 Vt. 1; Matterson v. Holt, 45 
Vt. 3367 Water's Pat. Heating Co. v. Smith, 120 Mass. 444; Baker v. 
Lever, 67 N. Y., 304; Warren v. Tyler, 81 lU., 15; Shaw v. Barhart, 17 
Ind., 183; Blen v. Bear River, etc., Co.; 20 Cal., 602;Pence v. Lang- 
don, 99 U. S., 578; Street v. Blay, 2 Barn. & Ad., 456; Tiede. Sales, § 
163. 

' Supra, g§ 118, 119. 

'2Bouv. L. Diet, "Novation;" And. L. Diet. "Novation." 
19 



290 FOEMER EECOVEET. [ § 142. 

creditor remaining the same ; and, second, when the (iebt 
remains the same, but a new debtor is substituted for the 
old, who is thereby discharged. 

To effect a novation several things are essential ; first, 
there must be an existing valid obligation, else there will 
be nothing to extinguish ; second, the parties innovating 
must consent to the substitution ; and, third, there must 
be an express intention to innovate. An important con- 
sequence of the innovation is, that the extinction of the 
old debt destroys all the rights and liens thereto pertain- 
ing.' 

8. Former recovery. — First, what is the effect of a 
judgment, as res judicata? The doctrine, stated generally, 
is, that a judgment of a court of competent authority, 
having jurisdiction of the subject matter and of the 
parties is, while unreversed, conclusive of the questions 
in issue, as between the parties and privies, whether 
privies in estate, in blood, or in law." From this doc- 
trine, and principles herein-before stated, it follows that 
when a simple contract debt, or a specialty debt, is 
merged in a judgment, the original debt is extinguished. 
The doctrine of res judicata as now stated, is generally 
held to apply to foreign judgments vn rem, with the same 

" 1 Pars. Cont. (7th Ed.), p. 217, et seq.; 2 Whart. Cont., § 852, et 
seq. 

'1 Bouv. L. Diet., "Former recovery;" 2 Id. "Res judicata;" 1 
Greenl. Ev., § 523, et seq; 2 Pars. Cont. (7 Ed.), p. 867, et seq.; Best 
Ev., pp. 574, 577, 580; Bishop Cont. (Enl. Ed.), § 270; Supra, under § 
141; Hollisterv. Abbott, 31 N. H., 442; WaU v. WaU, 28 Miss., 409; 
Lagrange v. Ward, 11 Ohio, 257; Trammell v. Thurmond, 17 Ark., 
203; Hart v. Jewett, 11 Iowa, 276; Vandyke v. Bastedo, 15 N. J. L., 
224; Kelly v. Mize, 3 Sneed (Tenn.), 59; Pierson v. Catlin, 18 Vt., 77; 
Martin v. Hunter, 1 Wheat. , 304; Smith v. Maryland, 6 Cranch, 286. 



§ 143.] MOETGAGES; 291 

force and effect as to domestic ; but in regard to foreign 
judgments in personam,, the authorities are not in full 
agreement.' The scope of this work will not permit a 
discussion of this point. 

Although dealing with contracts, it may be of service 
to the student to notice in this connection that a satisfied 
judgment in trover, not only extinguishes the plaintiff's 
claim for the injury sustained, but invests the defendant 
with title to the property wrongfully converted by him. ' 

It may be stated generally, in conclusion, that debts 
may be discharged by performance of the condition of 
the obligation, whatever it may be, as the payment in 
full of a money bond, or the production of a party in 
court in pursuance of the exigency of a recognizance. 

III. Mortgages. 

% 143. Definition, and essential elements. — A chat- 
tel mortgage is the transfer of the title to personal prop- 
erty as security for a debt or obligation, upon condition 
subsequent, express or implied, that payment of the debt 
when due and payable, or discharge of the obligation, 
shall operate as a defeasance and re-vest the title in the 
mortgagor ; but on default of payment, or discharge of 
the obligation, the title shall become absolute in the 
mortgagee.' ' 

• 1 Greenl. Ev., §§ 541, 546. 

• Bishop Non-Cont. Law, §399; Osterhout v. Roberts, 8 Cow. 43; 
Foreman v. Nelson, 2 Rich. Eq., 387; Cooper v. Shepherd, 3 C. B. 266; 
Rice, Robertson v. Montgomery, Rice, 87; Chartrau v. Schmidt, Id., 
239; Hepburn v. Sewell, 5 Har. & J., 311; Spivey v. Morris, 18 Ala., 
254; Smith v. Alexander, 4 Sneed, 482. 

• Parshall v. Eggert, 52 Barb., 867; Porter v. Parmly, 42 How. Pr., 



292 FOEMAL KEQUISITES. [ § 144 

An analysis of the definition will show the essential 
elements of the mortgage in question. 

1. A transfer of title to the chattels from the mort- 
gagor to the mortgagee. 

2. It must be intended as a security for a debt or obli- 
gation. 

3. The transfer of title must be upon the condition, 
express or implied, that payment of the debt when due 
and payable, or discharge of the obligation, shall operate 
as a defeasance, and re- vest the title in the mortgagor. 

4. That on default of payment, or performance of the 
condition, the title shall become absolute in the mort- 



§ 144. Formal requisites. — No particular form of 
words is requisite to constitute a mortgage. Whatever 
be the form or language of the instrument, if it shows an 
intention of transferring title to the goods as security, 
subject to defeasance, it wUl constitute a chattel mort- 



Pa/rol chattel mortgages. — These are valid at common 

445; Thomson V. Batie, 11 Neb., 147, 151; Miner v. Judson, 2 Hun, 
441;Mowry V. Wood, 13 Wis. 413; Palmer v. Shirley, 16 Ind., 380; 
Scott V. Henry, 13 Ark., 113; Ing v. Brown, 3 Md. Ch., 531; Carpenter 
V. Snelling, 97 Mass., 453; Taber v. Hamlin, 97 Mass., 498; Smith v. 
Beattie, 31 N. Y., 543; Mosley v. Crocket, 9 Rich. (S. C), Eq., 339; 
Talbot V. DeForest, 3 Iowa, 586; Flanders v. Barstow, 18 Me., 857; 
Conner v. Carpenter, 38 Vt., 337; Tiede Sales, § 331, et seq. 

' Hart V. Burton, 7 J. J. Marsh. 333; Farmers', etc, Bank v. Lang, 
87 N. Y., 209; Fowler v. Stoneman, 11 Tex., 478; Bunacleugh v. Pol- 
man, 3 Daly, 236; McKnight v. Gordon, 13 Rich. Eq., 321; Moore v. 
Murdock, 26 Cal., 514; Bartels v. Harris. 4 Me., 146; Barfleld v. Cole, 
4 Sneed, 465; Cooper v. Brock, 41 Mich., 488. 



§ 14:4.J DEFEASANCES. 293 

law, but to satisfy the Statute of Frauds they must be 
in writing.' And quite generally in the States of the 
Union there are statutes providing, in effect, that as 
against creditors and subsequent purchasers and mort- 
gagees in good faith, chattel mortgages shall not be valid 
without recording or filing ; which provisions, by impli- 
cation, require a written instrument. But notwithstand- 
ing these statutes, parol mortgages, as between the 
parties, may be valid and enforceable.' 

Sepa/rate Defeasomoe. — While one instrument usually 
and properly contains both the grant and defeasance, the 
latter may be in a separate instrument without affecting 
the validity of the mortgage. But it must either be exe- 
cuted at the same time, or subsequently in pursuance of 
an agreement made at the same time, of the transfer of 
title. When thus executed the two instruments, in vir- 
tue of an elementary principle of the law of contracts, 
constitute but one in contemplation of law.' 

Parol defeasance. — It is a well-established common law 
rule, that parol evidence is inadmissible to vary or con- 
tradict a written instrument. This rule applied, an 
unconditional sale cannot be converted into a conditional 
transfer by parol. But equity relaxes the strict legal 
rule, and receives parol evidence to show that an abso- 
lute bni of sale was intended by the parties as a mortgage. 

' Swpra, § 103. 

' Bank of Rochester t. Jones,4 N. Y., 497; Mory v.Denny, 7Exch., 
581; Morrow v.Tumey, 35 Ala., 131; Ceas v. Bramley, 18 Hun, 187, 
188; Couchman v. Wright, 8 Neb., Ij Beeman v. Lawtoa, 37 Me., 543; 
May V. Estin, 3 Port., 414, 433. 

» Freeman v. Baldwin, 18 Ala., 346; Bishop Cont. (Enl. Ed), g 165; 
2 Pars. Cont., p. 503. 



29i SUBJECTS OS' .MOETGAGES, [ § 145. 

Courts of law have caught the spirit of equity which 
"mitigates the rigor of the law itself," and now quite 
generally admit parol evidence for the purpose of show- 
ing that a written transfer of personal property, absolute 
on its face, was in fact conditional, intended simply as a 
defeasible security.' 

There are cases, however, that adhere strictly to the 
common law rule, and refuse to receive parol evidence 
where the effect would be to vary or contradict the writ- 
ten instrument ; while other cases confine the introduc- 
tion of such evidence to cases of fraud, accident or mis- 
take." 

§ 145. Subjects of a chattel mortgage. — Stated 
generally, all kinds of personal property, corporeal or 
incorporeal, in possession or in action, may be mort- 
gaged. A party may mortgage anything in which he 
has a property, absolute or qualified, and which can be 
the subject of an absolute sale. For examples : The 
interest of a vendee in the subject of a conditional sale, 

' Hodges V. Tenn. M. & F. Ins. Co., 8 N Y., 416; Coev. Cassidy, 73 
N. y., 133, 187; Farrell v. Bean, 10 Md., 217; CasweU v. Keith, 12Gray, 
851;Hazzardv. Loring, 10 Gush., 267; Stokes v. Hollis, 48 Ga., 262; 
Todd V. Harding, 5 Ala., 698; Scott v. Henry, 13 Ark., 112; Hurford v. 
Earned, 6 Greg., 362; Bartel v. Lope, Id., 321; Love v. Blair, 72Ind., 
281; Wilmerding v. Mitchell, 52 N. J. L., 476; Baboock v. Wymau, 
19 How., 239; Sprigg v. Bank of Mt. Pleasant, 14 Pet., 201; Farmer 
V. Grose, 42 Cal., 169; Klock v. Walter, 70 lU., 416; Heath v. Wil- 
liams, 30 Ind., 495; Zuver v. Lyons, 40 Iowa, 670. 

» Porter v. Nelson, 4 N. H., 130; Bassett v. Bassett, 10 N. H., 64; 
Boody V. Davis, 20 N. H., 140; MoKinstry v. Conly, 12 Ala., 678; 
Sewell V. Price, 33 Ala., 97; Washburn v. Menills, 1 Day, 139; Whit- 
field V. Gates, 6 Jones, Eq., 136; Brainerd v. Brainerd, 15 Conn., 575; 
Collins v. Tillon, 36 Conn., 368; French v. Burns, 35 Conn., 859; 
€haires v. Brady, 19 Fla., 133. 



§ 145.] SUBJECTS OF MOETGAGES. 295 

if he be in possession of the goods ; ' an owner of a chat- 
tel having a general property therein, may mortgage it, 
notwithstanding another party has acquired possession 
under a special title, as in case of a pledge or lien ;' grass 
growing, when it is owned by one who does not also own 
the land ;' a tenant in common may mortgage his undi- 
vided share, subject, of course, to the rights of the other 
co-tenants, whatever they may be.* 

The relation of this subject to fixtures presents ques- 
tions of some diificulty, owing to the peculiar character 
of this species of property.' When impressed with the 
character of personal property, they may be the subject 
of a chattel mortgage ; and they will possess and retain 
this character while removable by the tenant, or who- 
ever annexed them to the land.* And it has been held, 
that if a mortgage be given for the purchase price of a 
chattel, the thing will remain personal property, as to 
the parties to the mortgage and all others having notice 
of it, although subsequently annexed to the freehold.' It 

•Everett V. Hall, 67 Me., 497; Crompton v. Pratt, 105 Mass., 255; 
Greenway'v. Fuller, 47 Mich., 557; Day v. Bassett, 103 Mass., 445; 
Holman v. Lock, 51 Ala., 287. 

' Prindell v. Grooms, 18 B. Men., 501; McCalla v. Bullock, 2 Bibb, 
208; Smith v. Coolbaugh, 21 Wis., 427. 

> Smith V. Jenks, 1 Denio. 580; 1 N. T., 90. 

* Gaar v. Hurd, 92 111., 315; Smith v. Rice, 56 Ala., 417; Shuart v. 
Taylor, 7 How. Pr., 251; Powder v. Rhea, 32 Ark., 435; Leland v. 
Sprague, 28 Vt., 746; Thompson v. Spittle, 102 Mass., 207; Nichol v. 
Stewart, 36 Ark., 612; Monroe v. Hamilton, 6 Ala., 326; Smith v. 
Andrews, 49 111., 28; MoUne Wagon Co. v. Rummell, 2 McCrary, 301. 

» See " Fixtures," supra, §§ 9, 10. 

• Denham v. Sankey, 38 Iowa, 269; Smith v. Benson, 1 Hill, 176; 
Goodnow V. Allen, 68 Me., 308; Lamphere v. Lowe, 3 Neb., 131, 134. 

' Ford V. Cobb, 20 N. Y., 344; Corcoran v. Webster, 50 Wis., 135; 



296 -, POSSESSION BY MOETGAGEE. [ § 146. 

is held, however, that such a mortgage is not enforceable 
against subsequent purchasers and mortgagees of the land 
without notice X)i the incumbrance upon the fixture.' 
And some of the decisions take the ground that where 
property, personal in its nature, has become so attached 
to the land that it cannot be removed without serious 
injury to the freehold, the chattel mortgage upon it is 
not enforceable against subsequent purchasers or mort- 
gagees of the land, even though they had actual notice 
of the prior incumbrance upon the fixture.* 

There has been considerable discussion, and some con- 
flict of judicial opinion as to whether the filing of the 
mortgage will protect the mortgagee of fixtures against 
subsequent purchasers or mortgagees of the real estate. 
The weight of authority seems to be that it would not ; 
that the constructive notice by filing will only afifect 
subsequent purchasers and incumbrancers of the fixtures ; 
and that nothing short of actual notice or knowledge 
would be sufiicient as against subsequent purchasers and 
mortgagees of the land." 

§ 146. Possession of the mortgaged property.— 

Upon the execution and dehvery of the mortgage, the 
mortgagee is entitled to the immediate possession of the 

Kinsey v. Bailey, 9 Hun, 420; Sisson v. Hubbard, 10 Hun, 420; Coman 
V. Lakey, 80 N. Y., 345; Eaves v. Estes, 10 Kan., 314; Herryford v. 
Davie, 102 U. S., 235; Tift v. Horton, 58 N. Y., 877. 

' Coman v. Lakey, 80 N. Y.-, 345; Voorhees v. McGinnis, 48 N. Y., 
278, 287; Pierce v. George, 108 Mass., 78. 

' See cases cited supra. 

' Bringhoff v. Munzenmaier, 20 Iowa, 513; Richardson v. Cope- 
land, 6 Gray, 536; Ford v. Cobb, 20 N. Y., 344. And see Snowdqn v. 
Craig, 26 Iowa, 165; Fortman v. Goepper, 14 Ohio St., 558; Brennan 
V. Whittaker, 15 Ohio St., 446. 



§ 14:6.] POSSESSION BY MOETGAGEE. 297 

mortgaged property, except -where the parties have 
expressly agreed that the mortgagor may retain posses- 
sion until default. On this rule the authorities are in 
accord.' The title carries with it the right of possession, 
and the mortgagee, in the absence of an agreement that 
the mortgagor may retain possession, can maintain an 
action of trespass or trover against any person, even the 
mortgagor, who withholds or disturbs his possession.' 
But where the right of possession is reserved to the 
mortgagor until default, the mortgagee cannot maintain 
an action for the conversion of the chattels while the 
mortgagor's right continues. The action in such case 
must be brought by the mortgagor, as the right to 
immediate possession is requisite to the maintenance of 
the action of trover.* On default of the mortgagor the 
suspended right of possession vests in the mortgagee, 
and if the goods are not delivered on demand, the law 
will furnish him a remedy by action of replevin, ar 
trover.* 

' EamsdeU v. Tewksbury, 73 Me., 197; Brackett v. Bullard, 12 
Met., 308; Broadhead v. McKay, 46 Ind., 595; Clark f. WMttaker, 18 
Conn., 543; Ellington v. Charleston, 51 Ala., 166; Robinson v. Camp- 
beU, 8 Mo., 365; McGuire v. Benoit, 3 Md., 181; Smith v. Acker, 23 
Wend., 654; Wilson v. Brannan, 27 Cal., 258. 

* Hathaway v Brayman, 42 N. Y., 322; Curel v. Wimder, 5 Ohio 
St., 92; Simmons V. Jenkins, 76 111., 479; Calkins v. Clement, 54 Vt., 
635; Hamilton v. Mitchell, 6 Blackf., 131; Shinners v. Brill, 38 Wis., 
648; Tallman v. Jones, 13 Kan., 438; Ford v. Ransom, 39 How. Pr., 
(N. S.), 416; Pierce v. Hasbrouck, 49 111., 23. 

» The cases last cited, supra; and McLeod v. Bemhold, 32 Ark., 
671. 

* Robinson v. Fitch, 26 Ohio St., 659; Lindeman v. Ingham, 36 
Ohio St., 1, 9; Bell v. Shrieve, 14 111., 463; Whisler v. Roberts, 19 111., 
274; Burton v. Tannehill, 6 Blackf., 470; Whitney v. Lowell, 33 Me., 
318; Hall v. Snowhill, 14 N. J. L., 8; Coty v. Barnes, 30 Vt., 78. 



298 DISTINGUISHED FEOM PLEDGES. [ § 147. 

The authorities warrant the statement that the mort- 
gagee, by taking possession on default of the mortgagor, 
acquires the right to bar the mortgagor's equity of 
redemption by a sale of the mortgaged chattels; and 
this without any special grant in the mortgage of power 
to sell, or decree of court. The mortgagor and mort- 
gagee in such case, it is held, sustain to each other a 
relation equivalent to that, of pledgor and pledgee, the 
mortgagee having, like the pledgee, a right to sell after 
due notice to the mortgagor.' 

§ 147. Mortgage distinguished from a pledge. — ^We 

have seen that a conditional transfer of the title to the 
property is essential to a chattel mortgage, but no such 
transfer takes place in cs^se of a pledge. The pledgee 
takes possession of the goods, and acquires a special 
property therein, while the general property remains in 
the pledgor. Default of the pledgor does not work any 
change in the title of either party ; a sale of the goods by 
the pledgee, on due notice to the pledgor, being the only 
way in which he can render the security available for its 
purpose. Whereas, on default of the mortgagor, the 
title to the property becomes, at law, absolutely vested in 
the mortgagee, no sale or decree of court being requisite 
to effect this result." 

' Charter V. Stevens, 8 Denio, 83; Patcline v. Pierce, 12 Wend., 
61, 68; Craig v. Tappin, 2 Sandf. Ch., 78, 90; Hall v. Bellows, 11 N. 
J. Eq.,-888; Denny v. Faulkner, 22 Kan., 89; Broadhead v. McKay, 
46 Ind.; 595; Wilson v. Brannan, 27 Cal., 258; Talman v. Smith, 89 
Barb., 890; Flanders v. Chamberlain, 24 Mich., 305; Landon v. 
Emmons, 97 Mass., 37. 

' White V. Cole, 24 Wend., 116; Gifford v. Ford, 5 Vt., 532; Wrig'. t 
V. Ross, 86 Cal., 414; Walker v. Staples, 5 Allen, 84; Conner v. 
Carpenter, 28 Vt., 237; Evans v. Darlington, 5 Blackf., 320; Eastman 



§148.] ' EQUITY BELIEF OF MOETGAGOB. 299 

Another distinction between a mortgage and a pledge 
is, that to constitute the latter, a transfer of possession 
to the pledgee is essential ; while the retention of the 
property by the mortgagor does not necessarily affect the 
validity of the mortgage; and quite generally now a 
stipulation is inserted in the mortgage reserving to the 
mortgagor the right of possession till default in the 
condition.' 

In some of the States there are statutory provisions 
for recording or filing chattel mortgages, and on com- 
pliance with these provisions the mortgagor may retain 
possession of the goods without endangering the security 
of the mortgagee. And where such provisions do not 
exist, it is generally held that retention of possession by 
the mortgagor, does not invalidate the mortgage, except 
as against subsequent hona fide purchasers and incum- 
brancers, and creditors.' 

§ 148. Equity relief of the mortgagor. — Hitherto 
we have been considering chattel mortgages under the 
common law. The discussion would be incomplete with- 
"out some notice of the rules of equity applicable to this 
species of security. At law, on default of the mort- 
gagor the title to the mortgaged property becomes abso- 

V. Avery, 23 Me., 348; Heyland v. Badger, 35 Cal., 404; Doak v. 
Bank of the State, 6 Ired. (N. C), L., 309; Mowry v. Wood, 18 Wis., 
413. 

' Parshall v. Eggert, 53 Barb., 367; Barsow v. Paxton, 5 Johns., 
258; Bucklin v. Thompson, 1 J. J. Marsh. (Ky.), 223; Letcher v. 
Norton, 5 111., 575; Hull v. Camley, 3 Duer, 99. 

' Morrow v. Tumey, 35 Ala., 131; Hackett v. Manlove, 14 Cal., 85; 
Golden v, Cockrill, 1 Kan, 359; Johnson v. Jefries, 30 Mo., 423; 
Smith V. Moore, 11 N. H., 55; Winsor v. McLeUan, 3 Story, 492. 



300 DIFFEE FEOM CONDITIONAL SALES, ETO. [ § 149. 

iute in the mortgagee;' the mortgagor's rights and 
remedies are extinguished, notwithstanding his default 
may have arisen from accident or circumstances beyond 
his control; and the mortgaged property may far exceed 
in value the mortgage debt. A tender of the debt in 
full, with interest, would be of no avail. From the 
oppressive operation of this rigorous common law rule, a 
court of equity will relieve the mortgagor, by permitting 
him to redeem, on making a legal tender of the debt, 
principal and interest, in full.' While the law treats a 
chattel mortgage as a defeasible sale of the property, 
and a transfer of the title, equity regards it as a lien, 
simply, giving the mortgagee a special property in the 
mortgaged chattels by way of security.' 

§ 149. Conditional sales with the right to re-pur- 
chase, distinguished. — We are now prepared to distin- 
guish between a chattel mortgage and a conditional sale 
with the right to re-purchase. The features of the two 
■contracts are so much alike, and the inartificial manner 
in which written instruments are often drawn, that in 

' Supra, § 143. 

» Charter V. Stevens, 8 Denio, 83; "Wylder v. Crane, 53111., 490; 
Flanders v. Barstow, 18 Me., 357; Dupuy v. Gibson, 36 lU., 197; 
.■Smith V. Coolbaugh, 21 Wis., 437; Wilson v. Brannan, 27 Cal., 258; 
Blodgett V. Blodgett, 48 Vt., 33; Flanders v. Chamberlain, 34 Mich., 
505; Bragleman v. Dane, 69 N. Y., 69; West v. Crary, 47 N. Y., 423. 

' See cases last cited, supra; and Davis v. Hubbard, 38' Ala., 185, 
189; Sidener v. Bible, 43 Ind., 230; Evans v. Merriken, 8 Gill & J., 39; 
Headley V. Goundray, 41 Barb., 282; Kinna v. Smith, 2 Green., Ch. 
14; Eaton v. Whiting, 3 Pick., 484; Anderson v. Baumgartner, 27 
Mo., 80; Ragland v. Justices, 10 Ga., 65; Timms v. Shannon, 19 Md., 
296; Whitney V. French, 25 Vt, 663; Ellison v. Daniels, 11 N. H., 
^0; Deedly v. Oadwell, 19 Conn., 218; Hughes v. Edwards, 9 
Wheat., 500. 



§ 150. j FOEECLOSUEE, ETC. 301 

many cases special care is required to distinguish the one 
from the other. In both there is a conditional sale 
which passes the title from the vendor to the vendee ; 
the difference between them being that in case of a sale 
with the right to re-purchase, the right must be exer- 
cised, if at all, within the time limited by the contract j 
while in the case of a mortgage the right of redemption 
exists and may be exercised after default or condition 
broken. In short, the distinguishing feature is, the 
equity of redemption in the latter case, and the absence 
of it, or its equivalent, in the former. It is obviously 
quite 'desirable to have a test which, applied to a con- 
tract of conditional sale in cases of obscurity and doubt, 
wiU determine whether it is a mortgage or a sale with a 
right to re-purchase. Such a test is found in answer to 
the question : Was the transfer made as a security for 
a debt or liability? If yea, it is a mortgage ; if nay, it is 
not a mortgage, but a sale with the right of re-purchase. 
The purpose of security, we have seen, is the very 
essence of a mortgage ; and whatever the form of words, 
if ^;he instrument manifests such intention, it may safely 
be ^jronounced a mortgage.' 

§ 150. Foreclosure of the equity of redemption. — 

When the mortgage contains a stipulation that the mort- 
gagee may seU the property on default of the mortgagor, 

' Supra, §§ 143, 144; and Robinson v. Cropsey, 3 Edw., Ch. 138; 
■Woodson V. Wallace, 23 Pa. St., 171; Kelly v. Thompson, 7 Watta, 
401; Trucks V. Lindsay, 18 Iowa, 505; Page v. Foster, 7 N. H., 393} 
Flagg V. Mann, 14 Pick.j 483; Pearson v. Seay, 35 Ala., 613; Rice v. 
Rice, 4 Pick., 349; Hughes v. Sheafl, 19 Iowa, 335; Heath v. Wa- 
liams, 30 Ind., 495; Glover v. Payne, 19 "Wend., 518; Cornell v. Hall, 
22 Mich., 377; Kearney v. McComb, 16 N. J. Eq., 189. 



302 FOEEOLOSUEE, ETO. [ § 150. 

as a means of satisfying the debt ; or if, without such 
stipulation, he has possession of the property after' 
default, he may make an absolute sale of the same, and 
thus bar the mortgagee's equity of redemption. This 
procedure avoids the necessity of the more dilatory and 
expensive foreclosure by bill in equity. In the absence 
of statutory requirements, the mortgagee may sell the 
goods at private sale, or at public auction;' but the sale 
must be conducted in good faith and fairness towards the 
mortgagor.' 

In many of the States there are statutory provisions 
authorizing the foreclosure of chattel mortgages, and 
prescribing the procedure; and, in obedience to a well 
settled rule, these provisions must be substantially com- 
plied with in order to effect a regular and valid fore- 
closure. This rule applies to courts as well as to indi- 
viduals. ' 

Independent of statutory provisions, however, a court 
of equity has power to decree a foreclosure of a chattel 
mortgage.' And there may be a foreclosure in equity 
notwithstanding a power of sale is contained in the 

' Waite V. Dennison, 51 El., 319; Wylder v. Crane, 53 m., 490; 

McConnell v. People, 84 111., 583. 

' Hale V. Omaha Nat. Bank, 64 N. Y., 550; Robinson v. Bliss, 12 
Mass., 428; Stoddard v. Dennison, 38 How. Pr., 296; Hall v. Ditson, 
53 How. Pr., 19; Gordon v. Clapp, 113 Mass., 355; Hungate v. Rey- 
nolds, 72 111., 425. 

' Mossman v. Forrest, 27 Ind., 233; Cooper v. Sunderland, 8 Iowa, 
114. 

* Morris v. Tillson, 81 111., 607; Broadhead v. McKay, 46 Ind., 595; 
Brown V. Greer, 13 Ga., 285; Hammers v. 'Dole, 61 III., 307; Dupuy 
V. Gibson, 36 III., 197; Freeman v. Freeman, 17 N. J. Eq., 44; Pack- 
ard V. Kingman, 11 Iowa, 219; Blakemore v. Tabor, 22 Ind., 446. 



§151. J BOnOMEY, ETC., BONDS. 303 

mortgage, designed as a substitute for an equity fore- 
closure. ' 

lY. Bottorm'y, and Respondentia, Bonds. 

% 151. Defined and explained A bottomry bond is 

a contract by which a ship is hypothecated as a security 
for money borrowed for its use, by the owner, or the 
master or his agent, on maritime interest. 

It is called a bottomry bond because the keel or lottom 
is hypothecated as representing the whole ship, pars pro 
toto. 

The term "hypothecation," borrowed from the civil 
law, is used to distinguish it from a chattel mortgage, 
from which it differs, and from a pledge, in which the 
possession of the property is given to the pledgee. 

The term "maritime interest" means extraordinary 
interest, which is allowable and paid on account of the 
marine risk assumed by the lender. The risk arises from 
certain perils enumerated in the bond, it being stipulaled 
therein, that if the ship be lost in the course of the speci- 
fied voyage, or during the time limited in the contract, 
by any of the enumerated perils, the lender shall lose 
his money, principal and interest. Thus the lender, by 
assuming the risk, becomes a kind of insurer, and is per- 
mitted to stipulate for a premium in the shape of extra- 
ordinary interest.' 

• Briggs V. Oliver, 68 N. T., 339; Rich v. Milk, 20 Barb., 616; Marx 
T. Davis, 56 Miss., 745; Long Dock Co. v. Mallory, 12 N. J. Eq., 98. 

• Abb. Ship. (7 Am. Ed.), p. SOS.efseg.; 2 Bouv. L. Diet., "Bottom- 
ry;" 2 Pars. Cont, p. 280, et seg.; 1 Soh. Pers. Prop., p. 559, et seg.; 
The Draco, 2 Sumn., 157; Thomdike v. Stone, 11 Pick.. 183; Bray v. 
Bates, 9 Met.., 235. 



304 HYPOTHECATION OF THE SHIP. [§152. 

A respondentia contract or bond is substantially the 
same as that of bottomry, except that it hypothecates 
the cargo instead of the ship and its tackle.' The two 
contracts may be embraced in one instrument. 

It will be seen that the peculiarity of these bonds 
which distinguishes them frorri other forms of security 
is, that the lender assumes the risk of certain perils, and 
takes the chance of losing his money with the security 
in the event that the ship, or cargo, be lost by any of 
the enumerated perils ; but receives for the use of his 
money, and the risk assumed, maritime interest, in case 
the ship or cargo — whichever be the subject of the con- 
tract — escapes loss or injury from the specified perils.* 

§ 152. Hypothecation by the master, or the owner. 

— The master of a ship, from the nature and circum- 
stances of his duties and responsibilities, is clothed with 
extraordinary powers as an agent, especially when at 
sea, or in a foreign port. He is often compelled to 
decide and act in exigencies involving the sSfety of the 
vessel and cargo, and consequently the interest of the 
owners, without an opportunity of communicating with 
them, and receiving special instructions for the emer- 
gency. Among the powers conceded to, and exercised 
by the master from an early period in the history of 

• 3 Bouv. L. Diet., "Respondentia;" and authorties last supra. 

' In addition to cases cited last supra, see The Cognac. 3 Hagg. 
Adm., 387; Sharpley v. Hurrell, Cro. Jac, 308; Simonds v. Hodgson,. 
3 Barn. & Adol., 50; Jennings v. Ins. Co. of Pa., 4 Binn , 244; 
Greeley v. Waterhouse, 19 Me.,- 9; Leland v. The Ship Medora, 3 
Woodb. & M., 93; The Blray v. Bates, 9 Met., 287; Thorndike v. 
Stone, 11 Pick., 187; Rucher v. Conyngham, 3 Pet. Adm., 295; Th& 
Mary, 1 Paine, 671; Northwestern Ins. Co. v. Seward, 36 N. Y., 139. 



§152.] HYPOTHECATION, ETC. 805 

navigation and maritime law, is that of hypothecating 
the ship, or cargo, or both, on bottomry and respon- 
dentia bonds. The power may be exercised in a foreign 
port, in the absence of the owners or employers, for the 
purpose of raising money for repairs or equipment, or to 
enable the ship to return to her home port. But, it 
must be a case of necessity, both as to the money 
required, and this way of raising it ; so' that, if the 
necessary amount of money can be obtained on the 
credit of the owners or employers of the ship, or other- 
wise, the master is not authorized to borrow it on bot- 
tomry or respondentia.' ' 

The owners, or part owners, may hypothecate the 
ship by a bottomry contract, to the extent of their 
respective interests." "While ia a bottomry contract by 
the owner the necessity of hypothecation is not essential 
to its validity, as in case of the master, it is essential 
that the lender should assume the risk, and put his 
money at hazard, in order to constitute a bottomry bond 
proper.' The owner may, of course, mortgage or 

' Story Agen., § 116; Abb. Ship. (7 Am. Ed.), p. 203; 2 Pars. Cont. 
(7 Ed), pp. 281, 284; Putnam v. The Polly, Bee Adm., 157; The 
Aurora, 1 Wheat., 96; Hurry v. The John and Alice, 1 Wash., 293; 
Walden v. Chamberlin, 8 Wash., 390; Crawford v. The William 
Penn, Id., 484; Patton v. The Randolph, Gilp., 457; Kleimworth v. 
Marrittinia, i App. Cas., 156; The Fortitude, 3 Sumn , 246; The Ship 
Packet, 3 Mason, 255; The Eoyal Stuart, 33 Eng. L. & Eq., 602. 

' The Duke of Bedford, 2 Hagg. Adm.. 294; The Mary, 1 Paine, 
671; The Draco, 2 Sumn., 157; The Hilarity, Blatchf. & H. Adm., 
90; MiUer V; The Rebecca, Bee Adm., 151; Thorndike v. Stone, 11 
Pick., 183; Greeley v. Waterhouse, 19 Me., 9. 

= See The Jane, 1 Dod., 466; The Emancipation, 1 Wm. Rob., 129; 
The Lord Cochrane, 2 Wm. Rob., 320; The Hunter, Ware, 341; The 
Brig Atlantic, 1 Newb. Adm., 514. 
20 



306 MISCELLANEOUS EULES. [§163. 

pledge his ship, as he could any other personal property, 
subject to the common law rules applicable to such 
securities. 

§ 163. Miscellaneons. — There are some other rules 
connected with this subject which may be conveniently 
noticed in passing, without special regard to logical 
arrangement. 

1. "The contract of hypothecation made by the 
master does not transfer the property of the ship, but 
only gives the creditor a privilege or claim upon it, to be 
carried into effect by legal process." ' 

2. The owner is not personally bound by a bottomry 
bond executed by the master ; the personal remedy of 
the lender being against the master, unless the bond pro- 
vides for his exemption from personal liability.' 

3. A bottomry bond takes precedence as a security to 
every other claim for the voyage on which it is founded, 
except the claim for seamen's wages, which are sacred ' 
' ' as long as a single plank of the ship remains. ' ' ' 

If the lender on bottomry discharges the wages due to 
the crew, he will be entitled to the same priority and 
lien on the proceeds of the ship, which they would 
have.* 

' Johnson V. Shippin, 2 Ld. Raym., 984; Blaine v. Ship Charles 
Carter, 4 Cranch, 328; United States v. Delaware Ins. Co., 4 Wash. C. 
C. 418. 

» The Nelson, 1 Hagg., 169, 176; Stainbank v. Fanning, 6 Eng. L. 
& Eq., 412; The Virgin, 8 Pet., 538. 

» The Sidney Cove, 2 Dod., 1, 13; The Madonna D'Idra, 1 Dod., 
40; Blaine v. The Ship Charles Carter, 4 Cranch, 328; The Mary Ann, 
g Jur., 9S; The Constancia, 10 Jur., 850. 

•* The Kammerheive v. Eozencratz, 1 Hagg. Adm., 62; The Virgin, 
8 Pet, 583. 



§ 153.J MI80ELLANB0US EULES. 307 

4. The bottomry bond does not vest in the lender any 
absolute indelible interest in the ship ; hence, as against 
subsequent purchasers or creditors it must be enforced 
■within a reasonable time, or yield to their superior 
equities. So, also, as to judgment creditors; if, for 
example, the bottomry holder permits the ship to make 
several voyages without asserting his lien, and in the 
mean time other creditors levy executions upon the ship, 
the holder vriU lose his lien. ' 

6. On the arrival of the ship in the home port, if the 
loan be not paid according to its terms, the bottomry 
holder has his remedy in the Court of Admiralty, by a 
proceeding in rem. On the proper application to the 
Court under the procedure in Admiralty, the ship wUl 
be seized and held to await the adjudication of the 
claims of the several parties interested, who wUl be cited 
to appear before the Court, if they wish to be heard. 
The Court has power to decree a sale of the ship, if 
necessary, which will be conducted by the Marshal of the 
District, or other proper officer, and the proceeds 
brought into court for distribution among the claimants, 
as justice and equity may require.' 

6. It should be mentioned in this connection that a 
bottomry bond may be sustained as to some of the 
claims for which it was given, and held invalid as to 
others ; in other words, it may be good in part, and bad 
in part." 

' Blaine v. The Ship Charles Carter, 4 Cranch, 888; Leland v. 
Medora, 2 Woodb. & M., 93, 105; Packard v. Louisa, Id., 49; The 
Chusan, 2 Story C. C, 468; The Brig Nestor, 1 Sumn., 85. 

'Abb. Ship. (7 Am. Ed.), p. 333. 

» The Aurora, 1 Wheat., 96; The Packet, 3 Mason, 355; The Tartar, 
1 Hagg., 1; The Nelson, Id., 169; The Hero, 3 Dod., 139. 



308 KENT. [ § 154. 

7. "While, as a rule, the maritime interest may be 
what the parties agree upon, the Court has power to 
reduce it, and will do so if, under all the circumstances, 
the rate be oppressive and unjustifiable. In the exer- 
cise of this power, however, the Court will act with 
caution, and, in the absence of fraud, will disturb the 
agreement of the parties only in extreme cases, and in 
obedience to the imperative demands of justice and 

equity.' 

Y. Bent. 

§ 164. Definition and properties. — Mr. Washburn 
defines rent as "a right to the periodical receipt of 
money or money's worth in respect of lands, which are 
held in possession, reversion or remainder, by him from 
whom the payment is due. ' '" In Bouviere's Law Dic- 
tionary we find the following definition : ' 'A return or 
compensation for the possession of some corporeal inheri- 
tance, and is a certain profit, either in money, provi- 
sions, or labor, issuing out of the lands and tenements,. 
in return for their use. ' ' * Careful attention to these 
definitions will show that the principal and characteristic 
properties of rent are, a profit to the proprietor of lands 
or tenements, certain in its character or capable of being 
reduced to a certainty, issuing periodically out of the 
subject of the demise to or possession of the party from 
whom payment is due, which must be corporeal in its- 
nature. The proprietqr is called the landlord, the other 

' The Zodiac, 1 Hagg., 330, 336; The Ysabel, 1 Dod., 273; The 
Augusta, Id., 283; The Packet, 3 Mason, 355; Wilmer v. The Smilax„ 
2 Pet. Adm.,295. 

s 2 Washb. Real Prop., 273. 

» 2 Bouv. L. Diet., "Rent." And. L. Diet. "Rent." 



§ 165. J KINDS OF BENT. 309 

party, the tenant, and the profit or compensation for the 
use of the premises, the rent. ' Kent cannot issue out of 
a mere privilege or easement." 

It is not essential to rent that the profit or compensa- 
tion for the use of the land should be in money ; it may 
be wheat, corn, or other produce of the land, fowls, or, 
indeed, any other personal property; so, also, it may 
consist in services or manual operations, rendered by the 
tenant to the landlord.' 

§ 155. The kinds of rent. — At common law there 
are three kinds of rent, known, respectively, as rent 
service, rent charge, and rent seek. 

Hent service, as its name indicates, is that in which 
corporal service is rendered in return or as a compensa- 
tion for the use of the land ; and this kind is annexed to 
and connected with a reversionary estate remaining in 
the grantor. 

Hent cha/rge, is where the owner of the rent has no 
future interest in the land, but in his grant reserves to 
himself a rent, with a clause authorizing its collection by 
distress. 

Rent-seek — reditus sicctis — is simply a rent reserved 
by deed, without the distress clause, and which can only 
be collected by an ordinary action at law. 

There is another species of rent mentioned in the 
books, called a fee-fa/rm rent, which is, in fact, a reut- 

' 3 Kent Com., p. 460; 3 Bouv., L. Diet., "Rent;" Tayl., Land, and 
Ten., § 369, et seq.; Tiede Real Prop., §§ 641-646. 

' 3 Kent Com., p. 461; 2 Black. Com., p. 41; GUb. Rents, 9; Buzzard 
V. Capel, 8 Bru. & C, 141. 

• Authorities cited supra, under this section. 



310 EEMEDT BY DISTEBS3. [§156. 

charge issuing out of an estate granted in fee. It is, 
therefore, omitted in the foregoing classification.' 

The design and scope of this work will not justify a. 
full discussion of these different species of rent, with' the 
rules applicable to each. And, indeed, such discussion 
would be of little benefit, by reason of the changes in the 
common law, both in England and the United States. 
The difference between them, so far as the remedy for 
their recovery is concerned, has been abolished in Eng- 
land," and generally in this country, distress for rent 
being authorized if payment is not made or rendered 
when due. In some of the States of the Union, how- 
ever, distress for rent has been abolished by statute in 
all cases. 

The subject of rent is introduced and will be treated, 
mainly, in its character as a chose m action, which 
justifies its discussion in a treatise on Personal Property. 

§ 156. Remedy by distress. — This is an ancient and 
efficient remedy for the collection of rent, when avail- 
able for that purpose. At common law, as we have 
seen,' this remedy did not exist in case of rent-seek ; but 
it has been extended by statute to aU kinds of rent, and 
is now available to the landlord in most, if not all, of 
the States of the Union, except those in which distress 
for rent has been abolished by statute. 

Originally, distress as a remedy extended to other 
cases than rent in arrear, as, for example, the case of 

' Authorities, su/pra, under this section. 
' 4 Geo. II, c, 38. 
• Supra, § 155. 



§ 156.J EEMEDT BY DISTRESS. 311 

cattle of a stranger found by the owner of lands on his 
premises, damage feasant. The owner might distrain 
the cattle as a pledge until he received satisfaction for 
the injury sustained by the trespass. ' In the case of rent 
in arrear, the landlord might seize any personal chattels 
found on the demised premises as a pledge for the pay- 
ment of the over-due rent. In both cases, and others in 
which distress was allowable, the distraining party was 
bound to hold the pledge until the other party, as 
pledgor, saw fit to redeem it. If the other party offered 
pledges for the satisfaction of the injury, or the perform- 
ance of his duty, and the landlord should persist in hold- 
ing the chattels distrained, the owner thereof might 
recover them by writ of replevin.' 

The ancient common law rule, and practice, have been 
so far changed, that distress now consists of a summary 
seizure and sale of the property subject to distress, to 
obtain satisfaction for the injury, or payment of the 
claim. 

To the existence of the right of distress, and for its 
exercise, there are several essential elements and rules 
demanding attention. 

1. There must be an actual demise, at a certain fixed 
rent, or an amount th^t may be reduced to a certainty by 
calculation.' 

> 3 Black. Com., p. 7. 

' Tayl. Land, and Ten., § 557; 3 Black Com., pp. 6, 7, and note. 

•Dunk V. Hunter, 3 Bam & Adol., 333; Valentine v. Jackson, 9 
Wend., 323; Grier v. Cowan, Addis., 347; Eeeves v. McKenzie, 1 
Bailey, 500; Moiilton v. Norton, 5 Barb., 286; Jackson v. Smith, 1 
Bay, 315; Smith v. Colson, 10 Johns., 91; Smith v. Fyler, 2 Hill, 648. 



312 EIGHT OF DISTKESS. [ § 166. 

2. The relation of landlord and tenant must be fully- 
completed, and not merely in contemplation ; an agree- 
ment for a lease wUl not suffice ; but the relation once 
established, the right of distraining being incident thereto, 
the landlord can only be deprived of it by a termina- 
tion of the tenancy.' A parol lease will be sufficient to 
create the relation and authorize a distress." 

3. An unsatisfied judgment for the rent, does not, at 
common law, extinguish the right of distress.' A prom- 
issory note, given and accepted for the rent, will not 
defeat the right of distress, unless upon agreement of the 
parties to the effect that it shall so operate, or it be taken 
in absolute payment.* A surrender of part of the 
premises will not bar a distress as to the residue." But it 
has been held, that if the landlord has treated his tenant 
as a trespasser he cannot lawfully distrain, even though 
the latter remains in possession down to the day of the 
distress.' 

4. The right of distress is canceled by a legal tender 
of the amount due, although not made until after the 

' Schuyler v. Leggett, 2 Cow., 660; Jack v Smith, 1 Bay, 315; 
Hegan v. Johnson, 2 Taunt., 148; Bought v. Bennett, 3 Bing., 361. 

' Citations last sttpra, and Cornell V. Lamb, 3 Cow., 652. 

•Snyder v. Kunckleman, 3 Penn'., 490; Chapman v. Martin, 13 
Johns., 240; Bautleton v. Smith, 2 Binn., 146; Bates v. Nellis, 5 Hill, 
651. 

'' Peters v. Newkirk, 6 Cow., 103; Snyder v. Knuckleman, 3 Perm., 
487; Harris v. Shipway, BuU. N. P., 183; Davis v. Fyde, 4 Nev. & M., 
463; Bailey v. Wright, 3 McCord, 484; Warren v. Torney, 13 Serg, & 
R., 53. 

' Peters v. Newkirk, 6 Cow., 103. 

» Bridges v. Smyth, 2 Moore & P., 740; Jackson v. Sheldon, 6 Cow , 
103. ' 



§166.] EIGHT OF DISTRESS. 313 

rent-day; or even not till after the commencement of 
distress proceedings, provided the tender includes the 
expenses of such proceedings.' But it is too late after 
cattle are actually impounded, because thej'^ are then in 
custody of the law.* 

5. Any one of several joint tenants may distrain for 
the whole rent; and may appoint an agent to do so with- 
out the assent of his co-tenants.' But co-parcenors, 
before partition, must all join in the proceedings ; after 
partition they may severally distrain.* Tenants in com- 
mon must distrain severally. ' 

At common law, the landlord could only distrain dur- 
ing the continuance of the term, as a privity of estate 
between the tenant and the distrainor was essential to 
the right of distress. By statute in England,' the rule 
was so changed that the distress could be made at any 
time within six months next following the determination 
of the lease, provided the landlord's title or interest stiU 
continued, and the tenant remained in possession ; and 
this statute, in substance, has quite generally been 
adopted in the United States.' There are, also, various 

' Williams v. Howard, 3 Munf., 277; Hunter v. Loconte, 6 Cow., 
738; Six Carpenters' Case, 8 Eep., 146, b; Hunter v. Blain, 2 Bailey, 
168; Virtue v, Beasly, 2 Mood. & M. 31. 

« Ladd V. Thomas, 13 Ad. & El., 117. 

'Pullenv. Palmer, 3 Salk., 207; Robinson v. Hoffman, 4 Bing., 
562; Bearinger v. O'Hare, 26 Iowa, 359. 

* Steadman v. Page, 1 Salk., 390; Co. Lit., 163, b. 

' Whitley v. Eoberts, 1 McClel. & Y., 107; Harrison v. Bamsby, 5 
Term E., 246. 

» 8 Anne, o. 14. 

' Terboss v. Williams, 5 Cow., 407; Christman v. Floyd, 9 Wend., 
340: Bume v. Richardson. 4 Taunt, 730; Buckup v. Valentine, 19 



314 EIGHT OF DISTEESS. [ § 156. 

statutory provisions on the subject of distress in the sev- 
eral States of the Union, which must be consulted by 
the practitioner when necessary. 

Y. As a distress can only be taken for rent in arrear, 
the landlord cannot legally make the seizure untU the 
day following that on which it is payable, the tenant 
having until the last minute of that day to make pay- 
ment, and will not, therefore, be in default until the 
following day." At common law, a distress for rent 
cannot be made in the night, but must be a work of the 
day, between sunrise and sunset." 

8. In making a distress, if there be several articles in 
the house subject thereto, the landlord may seize upon 
any one in the name of all, with the declaration that 
none shall be removed until his rent is paid; and this, it 
is held, will authorize him to follow an article thereafter 
removed without his consent.' The landlord, for the 
purpose of making a distress, may enter into any building 
through the doors and windows which are unfastened, 
but if fastened, he cannot lawfully break them open. If, 
however, an entrance be gained through an open outer 
door, an inner may be broken for the lawful purpose in 
view.* 

Wend., 554; BeU v. Potter, 6 Hill, 497; Weller v. Shearman, 3 Denio, 
363. 

• Gano V. Hart, Hardin (Ky.), 297; Duppa v. Mayo, 1 Saun., 287; 
Evan V. Herring, 27 N. J. L., 243. 

» Co. Litt., 142, a; Glib. Distr., 50; Attenbergh v. People, Car. «fc 
P. 212; Tutton v. Darke, 5 Hurl. & N., 654; Sherman v. Duch, 16 
111., 283; Fry v. Breckinridge, 7 B. Mon., 31. 

• Wood V. Munn, 5 Bing., 10; see Hutchinson v. Scott, 2 Mees. & 
W., 809. 

« 1 Kol. Abr., 671, 1, 7, 17; Co. Litt., 161, a; Semayn's Case, 5 Co. 



§ 156.] EIGHT OF DISTRESS. 316 

9. It is the general common law rule, that all the 
movable goods and chattels found on the premises may 
be taken' upon a distress for rent, whether they belong 
to the tenant, under-tenant, or some other person.' To 
this general rule, however, there are various exceptions, 
both at common law and by statute ; but the exceptions 
are not uniform in number or character in all the States 
of the Union. It would not be profitable to notice them 
in detail here, did the limitations of the work permit, as 
the practitioner will necessarily acquaint himself with 
the peculiar laws of his own State on the subject." 

10. The goods and chattels distrained must be safely 
and properly kept, the tenant duly notified of the seiz- 
ure, and then, after the expiration of the time prescribed 
by law, if due notice of the time and place of the sale 
has been given, and the chattels have not been redeemed, 
the landlord may sell them at public auction, or sufii- 
cient of them to pay the rent in arrear, together with 
interest and cost of distress proceedings. The place and 
mode of keeping the distrained property, the notice of 
seizure to, and day of grace for, the tenant, the notice 
and manner of sale, and other particulars connected with 
the proceedings, have varied in the course of time, and 
are not at present uniform throughout the Union. But 
the aim of legislation, and of the administration of the 

R., 91; Williams v. Spencer, 4 Johns., 352; State v. Thackaw, 1 Bay, 
358; State v. Armfield, 3 Hawks, 346. 

' Spencer v. McGown, 13 Wend , 256; Holt v. Johnson, 14 Johns., 
435; Kesler v. McConachy, 1 Rawle, 485; O'Donnel v. Seybert, 13 
Serg. & R., 57; Howard v. Rawsay, 7 Harr. & J. 130; Davis v. 
Payne, 4 Rand., 334; Reeves v. McKenzie, 1 Bailey, 497; Blanch v. 
Bradford, 38 Pa. St., 344; Stevens v. Lodge, 7 Blackf., 594. 

* See 3 Kent Com., pp. 476-479. 



316 OTHEE EEMEDIES. [§157, 

law, is, to afford the landlord a summary, efficient 
remedy for the collection of his rent, and at the same 
time to protect the tenant from injustice and oppression. 
On seizing the goods and chattels of the tenant, the dis- 
trainor is quite generally and very properly required to 
^ive notice to the former of the distress, with an inven- 
tory of the articles taken, and a statement of his claim 
for rent, thus affording him an opportunity of redeeming 
his chattels by paying the rent and costs, or of intelli- 
gently declining so to do for what he may deem suffi- 
cient reasons. Five days are usually allowed by law for 
redemption, and five days previous notice of the time 
^nd place of sale required ; but as already stated, the 
rules governing the proceedings are not uniform. ' 

There are some minor incidental rules connected with 
-this topic, the discussion of which is necessarily omitted, 
hut to these the attention of the reader will be directed 
by a study of the rules and principles set forth in this 
;section, and the authorities cited. 

§ 157. Remedies by actions at law^ and a snit in 
•equity. — For rent in arrear the landlord has a remedy 
by action of debt, covenant, and assumpsit, and in 
some cases by a suit in equity. 

1. Action of debt. — At common law an action of debt 
is, in most cases, the appropriate remedy. It is called 
by this name because it is brought for the recovery of 
■debt, eo nomine and m numero. In the common law 
classification of actions, the term debt implies a liquid- 
ated or certain sum of money due.' 

' Tayl. Land, and Ten., §§ 605-614; 3 Kent Com., p. 480. 

> Steph. PL (9 Am. Ed.), p. 14; Chit. PL (7 Am. Ed.), p. 123. 



§ 157. j OTHER EEMEDIES. 3l7 

While damages are generally awarded for the deten- 
tion of the debt, they are in most cases only nominaly 
and not the principal object of the action, as in cove- 
nant and assumpsit.' 

By this action all kinds of rent, certain in amount, 
are recoverable, whether the demise be by deed or by 
parol ; and whether payable in money, or produce of the 
land reserved by the lease. If payable in money, the 
plaintiff will recover the debt, and interest on it from 
the time it became due and payable ; if payable in pro- 
duce, he wiU recover its value, and interest thereon from 
the stipulated time of delivery.' 

As this action is founded on the privity of contract 
annexed to the person in respect to the estate, and fol- 
lows it when the estate is transferred, the remedy passes 
with it. Hence, if the lessor grants his reversion, the 
remedy follows to the grantee, and if he assigns it the 
remedy passes to the assignee.' 

2. Action of covenant. — This action lies for the recovery 
of damages for the breach of a covenant or contract 
under seal, whether express or implied, and whether 
contained in a deed poll or indenture. * It is the peculiar 
remedy for the breach of covenant when the damages are 

' Tayl. Land, and Ten., § 615; 3 Kent Com., p. 472; McKeon v. 
Whitney, 3 Denio, 453. 

« Denny V. Pamell, 1 Rol. Abr., 591, L. 28; Ciheney's Case, 3 Leon., 
260; Ven Rensselaer's Ex'rs v. Jewett, 5 Denio, 135. 

"Walker's Case, 3 Rep. 23 b.; Humble v. Oliver, Cro. Eliz., 328; 
Howland v. Coffin, 12 Pick , 125. 

« 1 Chitt. PI. (7 Am. Ed.), p. 131; Steph. PI. (9 Am. Ed.), p. 16; 
Tayl. Land and Ten., § 661; Gale v. Nixon, 6 Cow., 445. 



318 OTHEE EEMEDIES. [ § 157. 

unliquidated, depending upon the opinion of a jury.' 
But it is, in most cases, a concurrent remedy with the 
action of debt.' But there are some exceptions; as, for 
example, where there has been an eviction from part of 
the land, the action of covenant will not lie against the 
lessee, because his liability arises on his personal cove- 
nant, which cannot be apportioned ; nor can a person not 
a party or privy to the deed maintain an action of cove- 
nant, except where the. common law rule has been 
changed by statute.' It lies only in favor of a person 
who is a party to the covenant, and in the name of the 
covenantee, who holds the legal interest ; not in the name 
of a person only beneficially interested ; nor can such 
person be joined in the action.* 

3. Action of assurrvpsit. — The action of assumpsit gives 
still another remedy. This action lies for a breach of a 
simple coni/ract, that is a contract not under seal, whether 
^aroZ or written. It maybe either express or implied. 
"Where there is no express promise, the law implies a prom- 
ise to do that which a party is, in justice, bound to per- 
form ; in other words, if the party makes no promise for 
himself in such case, the law makes it for him by imputa- 
tion. ' A landlord may recover in this action a reason- 

' Richards v. Killam, 10 Mass., 243,247; Smith v. Stewart, 6 Johns., 
48. 

' March v. Freeman, SLev., 883; Byron v. Johnson, 8 Term B., 410; 
Ilartshome v. Watson, 5 Scott, 506. 

» Tayl. Land, and Ten., § 663. 

« Jenkins v. Norton, 3 B. Mon. (Ky.), 28; Wolf v. Washburn, 6 
Cow., 201; Strohecker v. Grant, 18 Serg. & R., 237; Lord Southamp- 
ton V. Brown, 6 Barn. & C, 718; Howe v. Howe, 1 N. H., 49; Berkly 
V. Hardy, 5 Bam. & C, 355. 

» Steph. PL (9 Am Ed.), p. 19; 1 Chit. PL (7 Am. Ed.), pp. 112, 118; 
Bishop Cont. CEnl. Ed.), § 184; 2 Black. Com., p. 448. 



§ 167.] SUIT IN EQUITY. 319 

able satisfaction for the use and occupation of his lands 
and tenements under any agreement, express or implied, 
not under seal. The recovery is not for rent, techni- 
cally, as in the action of debt, but an equivalent therefor, 
■namely, a reasonable compensation for the use and occu- 
pation of the premises. If the compensation is fixed by 
agreement, it will govern the measure of damages ; if 
not, the damages must be determined by proofs alAwnde. ' 

4. A suit in equity. — There are cases in which the law 
fails to furnish the landlord an adequate remedy ; and in 
such cases it is the province of equity to grant relief.* 

In some of our States, it should be observed, the 
powers and functions of law and equity are blended in 
one tribunal. The essential distinction, however, between 
law and equity is not, as many suppose, obliterated ; but, 
simply, the two departments of jurisprudence are admin- 
istered by one »»i the same court, instead of two 
distinct and independent tribunals. Law is still law, and 
equity is equity, as of old, each with its peculiar prin- 
ciples and rules of administration. 

And in some States, also, the common law nomencla- 
ture of actions is blotted out by codes of procedure, and 
all kinds are ushered into the presence of the court by 
numbers, and are dressed in uniform, like the inmates of 
some educational and penal institutions. But the ghosts 
of common law actions wiU not all "down at the bid- 
ding" of modem law reformers; for whatever the form 

•-Tayl. Land, and Ten.. § 635, et seq.; 1 CJhit. PI. (7 Am. Ed.) pp. 
113, 120, et seq., 377. 

' See 1 Story Eq. Jur., §§ 684-687; 1 Pom. Eq. Jur., § 189; Taylor 
Land, and Ten., §§ 656-660. 



320 OBLIGATION TO PAT KENT, ETC. [ § 168. 

of pleading, the distinguishing characteristics of each 
class still confront the bench and bar, and must be under- 
stood and observed in the administration of the law. 

§ 158. Obligation to pay rent ; CTiction a defense. — 

Where the relation of landlord and tenant exists, whether 
created by specialty or simple contract, the tenant is 
under obligation to pay rent, even without an express 
covenant in the lease to that effect. In the absence of 
an express covenant, the law will, as we have seen,' 
supply an implied promise to pay, which is equally bind- 
ing upon the tenant. At common law, undbr an express 
covenant to pay rent, the obligation of the tenant will 
continue for the term, although the tenement, in the 
meantime, be destroyed by fire or other external vio- 
lence, unless the lease otherwise provides." The tendency 
in modern times has been to a relaxation of this severe 
rule ; and in some of our States it has been changed by 
statute, relieving the tenant from payment of rent there- 
after, on destruction of the tenement, until the premises 
are restored to a tenantable condition. Nevertheless, 
prudence suggests the insertion of a provision in the lease 
for the protection of the tenant in such a contingency. 

The obligation of the tenant to pay rent is upon the 
implied condition that he shall have the peaceable and 
quiet possession and enjoyment of the demised premises, 
without disturbance or eviction by the landlord ; and if 

' Supra, § 157, sub. 3; and see Tayl. Land, and Ten., § 371. 

' Gates V. Green, 4 Paige, 355; HoUzapfEel v. Baker, 18 Ves., 415; 
Lamott V. Stenet, 1 Harr. & J., 42; Philips v. Stevens, 16 Mass., 240;. 
Howard v. DooUttle, 3 Duer, 464; Willard v. Tillman, 19 Wend., 358^ 
8 Kent Com., p. 465, et seq.; Gibson v. Perry, 29 Mo., 245; White v, 
Molyneux, 2 Ga., 124. 



§ 158.] OBLIGATION TO PAT KENT, ETC. 321 

sued for the rent, the landlord's breach of this covenant 
will constitute a good defense. And an eviction by the 
landlord from part of the premises will release the tenant 
from obligation to pay rent, even on the part retained by 
him ; the contract, and the consideration, being each a 
unit, and indivisible by the wrongful act of the. land- 
lord.' 

Eviction from the whole of the demised premises by 
the lawful act of a third person, has the same effect upon 
the obligation of the tenant as an eviction by the land- 
lord ; but not so where the eviction by a third party is 
from a part, only, of the premises, in which case the 
rent will be apportioned, and the tenant obliged to pay 
for the portion enjoyed, by him." 

Actual physical expulsion is not necessary to produce 
an eviction. The tenant is entitled to the quiet, peace- 
ful, and beneficial enjoyment of the premises, without 
molesta,tion or annoyance from the landlord, either 
directly or indirectly;- and acts by the latter which 
derive the tenant of such enjoyment of the premises 
will, in contemplation of law, amount to an eviction. 
For example, using, or permitting the use of an apart- 

' Tayl. Land, and Ten., §§ 378, 379; 3 Kent. Com., pp. 464, 465; 
Pendleton v. Dyett, 4 Cow., 581; s. c, 8 Cow., 737; Hope v. Edding- 
ton, Lalor, 43; Ogilvie v. Hull, 5 Hill, 53; Crommelin v. Thiess, 81 
Ala., 413; Jackson v. Eddy, 13 Mo., 309; Day v. Watson, 8 Mich., 
535. 

« Hegeman v.McArthur, 1 E. D. Smith. 147: Christopher v. Austin, 
11 N. Y., 316; Vermilyea v. Austin, 3 E. D. Smith, 203; Carter v. 
Burr, 39 Barb., 59; Blair V. Claxton, 18 N. Y., 539; Tiley v. Moyers, 
43 Pa. St., 404; Stevenson v. Lambard, 8 East, 576; Hunt v. Cope, 
Cowper, 343; Lawrence v. French, 35 Wend., 443; Ludwell v. New- 
man*, 6 Tenn , 458. 
21 



822 APPOETTONMENT OF EENT. [ § 159. 

ment connected with the demised premises, as a place of 
resort for lewd women, thereby producing .nocturnal 
noise and disturbance, has been held an eviction. ' 

The eviction, to constitute a valid defense to an action 
for rent, must have taken place before the rent, fell due; 
it wiU not, therefore, bar a recovery for rent already 
due.' 

§ 159. Apportionment of rent. — It is a rule of the 
common law, that a unit of indebtedness, or obligation, 
cannot be divided mto fractions, or " split up " as it is 
generally expressed, and enforced by action in separate 
parts, thereby subjecting the debtor to the trouble and 
expense of several suits for the one original cause of 
action. The case of rent forms an exception to this rule, 
being in some instances subject to apportionment.* A 
few examples will suffice for the present purpose. ^ As 
rent is an incident to the reversion, whenever that is 
severed, either by act of the parties or by operation of 
law, the rent will follow the reversion, and become pay- 
able to the assignees or owners of the respective portions 
thereof.' Whenever there is a severance by act of law, 
there will be an apportionment of the rent ; as upon a 
descent of the reversion among heirs, or a judicial sale 

' Pendleton v. Dyett, 4 Cow., 58; Cohen v Dupont, 1 Sandf , 260. 

'Gilesv. Comstock, 4N. Y., 270; Kesler v. McConachy, 1 Eawle, 
835; Boynton v. Bobbitt, 3 Vent., 68; Stokes v. Cooper, 4 Camp., 514; 
Whitney v. Myers, 1 Duer, 267 

» 3 Kent Com., pp. 469-471; Tayl. Land, and Ten., §§ 383-385. 

* Nelhs V. Lothrop, 22 Wend., 121; Van Rensselaer v. Jones, 3 
Barb., 643; Van Rensselaer's Ex'rs v. Gallup, 3 Denio, 454; Cuthbert 
V. Kuhn, 3 Whart., 366: Farley v. Craig, 6 Halst., 262; McEUery v. 
Flannagan, 1 Har. & a., 308; Van Renuaelaer t. Bradley, 3 Denio, 
l.'ie, 3 Kent Com., p. 376. 



§159. J APPOETIONMENT OF KENT. 323 

of part of the demised premises, the tenants will be 
bound to pay rent to the heirs or purchasers, respect- 
ively, for the portion of the premises belonging to each.' 
In case a lessor, being owner of the fee, dies after rent 
becomes due, it is payable to his executors or adminis- 
trators, and not to the heir at law ; but if he dies before 
the rent accrues, it belongs to the heir, and not to his 
executors or administrators.' Where the rent is payable 
at stated periods during the term, as quarterly or 
monthly, the portion due and unpaid at the lessor's 
death, having, by severance from the reversion, become 
a chose in action, falls into his personal estate, and hence 
is payable to his executor or administrator ; while the 
portipn not yet due remains an incident of the reversion, 
and passes with it to the heir. 



There are other species of personal property, but none 
possessing peculiarities that require special treatment ; as 
they present no serious diflBculties, and none that may 
not be readily solved by an intelligent application of the 
principles and rules developed and illustrated on the fore- 
going pages. 

There only remains for consideration in this treatise, 
the devolution of personal property on the death of its 
owner, which is the subject of the next, and last, 
chapter. 

> Cole v. Patterson, 25 Wend., 456; Walter v. Flint, Cro. Eliz., 743; 
Linton v. Hart, 85 Pa. St., 193; Crosby v. Loop, 13 lU., 635. 

' Cole V. Patterson, supra, and Duppa v. Mayo, 1 Saund. R., 887; 
Barwiok v. Foster, Cro. Jac, 337; Norris v. Harrison, 8 Mad. Ch. R., 
268; Gheen v. Osbom, 17 Serg. & R,, 171; Ex parte Smyth, 1 Swanst., 
ZZi. 



324 GENEEAL EULE8. [ § 160, 



CHAPTEE XV. 

DEYOLUTION OF PERSONAL PROPERTY ON DEATH OF 

OWNER. 

Section 160. General rules. 

§ 160. General rules. — The owner of property, both 
real and personal, when not under disability, may, by 
last will and testament, determine its disposition after 
his death.' Dying intestate, his real estate descends- 
directly to his heirs, and his personal property, after 
payment of debts and expenses of administration, passes 
indirectly to his next of kin. "Who constitute heirs, and 
the order of inheritance, is determined by statutes, called 
statutes of descent; the next of kin, and rules of distribu- 
tion, are also prescribed by statutes, called statutes of 
distribution. These statutes are generally based upon 
the English statutes of distribution,' and which Mr. Kent 
says were borrowed from the 118th novel of Justinian.' 
But, while the American statutes are based on the Eng- 
lish, there are some points of difference between them; 
and although the statutes in the several States of the 
Union are alike in general character and policy, there are 
differences among them more or less marked. It is, 
therefore, impracticable to state the rules of distribution 
applicable to aU parts of our national domain, without a 
special examination of the local laws of each State, which 

' Supra, §§ 90-95. 

» 22 and 23 Charles II, ch. 10. 

» 2 Kent Com., p. 422. 



§ 160.J GENERAL EULES. 325 

the character and scope of this work will not permit. It 
may be assumed that the practitioner will be familiar 
with the general principles of law on the. subject; and he 
will consult the local statutes when necessary for guid- 
ance in matters under consideration. ' 

This brief chapter closes the discussion, in outline, of 
the Law of Personal Property. In taking leave of the 
subject, and of his readers, the writer would fain 
indulge the hope, that his earnest desire to present thi^ 
important branch of the law in a helpful manner, will 
not be regarded- by his professional brethren as a failure. 

' See 3 Kent Com., p. 420, et seq.; 1 Bouv. L. Diet., " Distribution;" 
1 Soh. Pers. Prop., pp. 747-750; Williams Pers. Prop., pp. 861-368; 
Goodeve Pers. Prop., p. 285, et seq. 



INDEX. 



[Beferences are to Pagea,] 

A. 

ABATEMENT. 

of legacies 246,347 

ABSOLUTE, 

property, absolute and qualified 8 

and conditional legacies . 245 

ABSENCE, 

of defendant from the State extends the time for 

commencing action against him 215 

ACCESSION, 

defined 65 

title to fruite! of the earth by 65, 66 

title to increase of animals by 66. 67 

materials of one person united to those of another., 67-70 

ACCEPTANCE, (See Sales.) 

offer and acceptance 145, 147-149 

under the Statute of Frauds 155-158 

the complement of delivery on sales 189 

ACCORD AND SATISFACTION, (See Debts.) 

defined; discharge of debts by 285,286 

ACCOUNT, 

rendition of by violator of trade-mark compelled 103 

ACKNOWLEDGMENT, 

of debt barred by statute of limitations .. 216-219 

ACTION, 

by vendor of personal property 203 

by vendee of personal property 203-208 

by landlord forrent inarrear 316-318 

ADEMPTION, 

of legacies explained 247, 248 



328 



INDEZ. ASS. 



[References are to Pages.] 

ADMINISTRATORS, (See Intestacy.) 

history and incidents of the law of intestacy, and 

administration 113-117 

powers and duties of administrator 116 

liability on decedent's subscription for stock 367 

ADMIRALTY, (See Bottomry, and Respondentia, Bonds.) 

remedy for holder of these bonds in court of 307 

AGENT, 

each partner the agent of all 40, 41 

ALIEN ENEMIES. 

property of liable to seizure and confiscation in 

time of war , 57 

testamentary incapacity of 136 

ALLODIAL, (See Estate, Real and Personal.) 

difference between allodial, and feudal tenure 28, 29 

AMBULATORY, (See Fixtures— Wills.) 

fi.xtures sometimes real, and sometimes personal 

property 9 

wUls are ambulatory 140 

ANIMALS. 

fercB naturae, reclamation of . 62, 63 

title acquired by reclaimant . . 63 

dividing line between wild, and tame . 63, 64 

title to increase of ardmals by accession 66, 67 

APPROPRIATION, (See Payment.) 

of payments - 197, 198 

on sale of goods not specific 168 

property acquired by... 54 

APPORTIONMENT, 

of rent 822, 323 

ARBITRATION, 

provision for in contract of insurance ......... ?36, 237 

ASSENT, (See Sales). 

ASSETS, 

of a corporation, on dissolution, a trust fund ' 268, 269 

ASSIGNMENT, 

as to authority of one partner to assign partnership 

property 40, 41 

of corporate stock by the owner 46 



CAP. INDEX. 329 

[References are to Pages.] 

ASSIGNMENT— Confmwed. 

gift of chose in action by assignment 137 

equitable assignments— 127 

ASSUMPSIT, 

action of for rent iaarrear 818 

B. 

BAILMENT, 

defined and explained.. 310 

general property in bailor, special in bailee 310, 811 

BANK NOTES, 

lost or stolen, bona fide holder of protected 60, 61 

BANKRUPTCY, (See Insolvency.) 

BAEGAIN AND SALE, (See Sales.) 

BEQUEST, 

meaning and use of the term 135 

BOTTOMRY, AND RESPONDENTIA, BONDS, 

defined and explained 803,304 

meaning of the terms "hypothecation," and "mari- 
time interest" 808 

hypothecation by the master, or owner 304 

does not transfer property of ship 306 

owner not personally bound by a bond executed Jjy 

the master _ 306 

the bond takes precedence as security to every other 

claim for the voyage except seamen's wages... 806 

as against creditors the bond must be enforced with- 
in a reasonable time , 307 

remedy of holder in Admiralty, by a proceeding in 

rem 807 

the court has power to reduce the stipulated rate 

of interest .... 808 

BURIAL RIGHTS, (See Moetuaey Peopeety.) 

c. 

CALLS, (See Stock and Stockholdees.) 
CAPITAL STOCK, (See Stock and Stockholders.) 



330 INDEX. CON. 

CAPTURE [References are to Pages.] 

title to goods captured in war .... 55 

in whom, or where, the title vests 56, 57 

in marine captures the property, and legality of the 

seizure, determined by a prize court 57 

property of alien enemies subject to seizure 57 

right of seizure and confiscation not the same upon 

land as in naval warfare 58 

CHATTELS, 

definition, and derivation, of "chattel" 25, 26 

real, and personal, defined and distinguished 25, 26 

wife's transferred to husband by marriage 121 

CHECK, 

payment by 195 

CHOSES, IN POSSESSION, IN ACTION, 

origin and meaning of the word "chose" . 26 

in possession, and in action, what are 36, 27 

wife's transferred to husband by marriage . 122, 123 

CHURCH FURNITURE, 

sometimes personal, and sometimes real, property; 

the law governing 21, 22 

rights of a pew-holder . 21,22 

bells, organs, furnaces, stoves and pipes, may be- 
come real property or fixtures j 22 

COMMERCIAL PAPER, 

warranty in the sale of 185 

lost or stolen, when indorsed in blank, or payable 
or indorsed to bearer, not recoverable by the 
owner from a bona fide purchaser 60,61 

COMMON CARRIER, 

effect of deUvery to, on sale of goods .. 187 

CONDITIONS, (See Sales,— Insurance.) 

the several kinds, and effects, in contracts of sale.... 180 

CONGRESS, 

power to create corporations ;.... 42 

to grant patents, and copyrights 73, 73 

to establish uniform laws on the " subject of bank- 
ruptcies throughout the United States" 119, 120 

CONFUSION OF GOODS. (See Accession.) 



COB. INDEX, 331 

[References are to Pages.] 
CONSIDERATION, 

how failure of affects contracts of sale 170, 171 

effect of illegal consideration .„ 171 

new, unnecessary to validate new promise .... 219 

CONSTITUTIONAL, (See Monet.) 

CONTRACT, 

executory, and executed 143 

transfer of title by 164, 169 

power of, possessed by corporations 44, 45 

power of joint-stock companies to contract 49 

authority of partners to bind co-partners by 40, 41 

contract with alien enemies invalid 68 

between the state and a patentee. 73 

implied contract of auditors not to violate lecturer's 

right of property in his lecture ^... 95 

whether judgments are contracts 110 

insurance contracts 231-234 

subscription for stock a contract 156 

illegal contracts of sale 179, 180 

CONTRIBUTION, 

between co-shareholders when one is compelled to 

pay a debt of the company 266 

COPYRIGHT, 

defined 82 

nature, and source, of the right 82, 84 

how to secure the statutory right 84^87 

essentials to a valid copyright 89-91 

merit, or value, essential 88, 89 

seditious, or Ubellous, publications, outlaws 89 

immoral productions not protected 90 

blasphemous publications under legal condemnation 90, 91 

remedies for infringement .............. . 91 

CORPORATIONS, 

defined, and how created . 42 

Congress, and the State legislatures, each power to 

create corporations 42 

classification of 43 

act through their officers, and other agents 43 

the officers, in a sense, superior to their principal... 43 



S32 



INDEX. DEB. 



CReferences are to Pages.] 

■CORPORATIONS— ConMwMed. 

power of contract substantially the same as that of a i 

natural person 44, 45 

interest of individual corporators in the corporate 

property 45 

what the term stock, in its full import, embraces ... 45 

owner of stock may assign it, and what the assignee 

takes .. 46 

■CORPSE, (See Mortuary Property.) 

quasi property in, conferring upon relatives the right 

of custody and control 23 

to whom the right, and place, of burial belongs 23, 24 

•CORRUPTION OF BLOOD, (See Forfeiture.) 

provisions in relation to, in the Federal Constitution, 

and Act of Congress , 106 

■CREDITS, (See Goods, Wares, Merchandise, Etc.) 

•CREDITORS, (See Debtor and Creditor.) 

contracts in fraud of, voidable 178, 179 

gifts prejudicial to the rights of, invalid 137- '. 29 

rights of, as against. corporations, and stockholders— 257-362 

COVENANT, 

action of , for rent in arrear 317, 318 

•COUNTERFEIT, 

payment In coimterf eit biUs not good 196 

■COVERTURE, 

as affecting testamentary capacity. ...... 137, 138 

D. 

DAMAGES, 

an essential element in an actionable fraud ... 175 

vendee, in some cases, entitled to special . 205 

DEBTS, (See Debtor AND. Creditor.) 

definition, and classification, of 276, 277 

a debt of record defined 277, 278 

judgment roll of a court of record, authority of 278-380 

distinction between courts of general, and of special, 

jurisdiction S79 

judgment impeachable for want of jurisdiction, or 

for fraud _ 278, 279, 281 



DEL. . INDEX. 333 

[References are to Pages.] 

VEBia— Continued. 

respecting impeachment of foreign judgments . 280-28S 

effect of foreign judgments as res judicata 283 

debts bjr recognizance 282, 283 

specialty debts explained 283,384 

what are simple contract debts 284 

how debts are discharged , 284, 285 

by payment ^ •. 193-198 

as to payment in Legal Tender notes 273, 274 

by accord and satisfaction .' 285,286 

by bankruptcy 117, 120 

release by act of the parties, or by operation of law. 286-288 

by recision of contract 288, 289 

by lapse of time 213,216 

bynovation; what it is. 289,290 

by former recovery. 290, 291 

action of debt for rent 816, 317 

debt from donor to donee subject of a gift to the 

latter _ 126 

DEBTOR AND CREDITOR, (See Insolvency— Debts.) 
question of fixtures between them and the heir or 

/vendee, and the widow . 13 

gifts prejudicial to creditors invalid 127-129 

stockholder's liability to oreditors 257-262 

assets of a corporation, on dissolution, constitute a 

trust fund for the benefit of creditors 268, 369 

sale of goods in fraud of creditors, invalid 178, 179 

ownership of property subject to the just claims of 

creditors - — 4 

DEFEASANCE, (See Mortgages.) 

DELIVERY, 

essential to a gift 126-133 

different kinds of delivery 126-188 

delivery under the Statute of Frauds 158 

in respect to a transfer of title 165, 166 

effect of delivery to common carrier 166-187 

in performance, of the contract of sale 185-189 

how, and where, delivery to be made 186 

delivery of insurance policy 228 



82^ INDEX. EFF. 

DEVISE [References are to Pages.] 

testamentary disposition of real estate „ 135 

DEVOLUTION, 

of personal property on death of the owner 834, 385 

DISCHARGE, (See Debts.) 

DISTRIBUTIVE SHARES, 

defined and explained 251, 353 

DISTRESS, (See Rent.) 

remedy of landlord for rent in arrear 310, 816 

DONOR, AND DONEE, (See Gifts Inter Vivos, am> 
Causa Mortis) 

DOUBLE INSURANCE, (See Insurance.) 

E. 

EASEMENT, 

grant of burial lot in a churchyard, or public ceme- 
tery, generally an easement . 22 

EMBLEMENTS, 

defined, and doctrine of, stated 13, 14 

what products the tenant may remove 14 

who, and when, entitled to 15-17 

incidents of 17 

EMINENT DOMAIN, 

power of the State to take private property for pub- 
lic use ; a limitation of absolute ownership 4 

ESTATE, 

derivation, and meaning, of the word 28 

properly applicable to real property only, but fre- 
quently applied to personal, and sometimes both 

to real and personal property 28, 29 

the feudal tenure prevails in England; in the United 
States, lands are allodial; the difference ex- 
plained 28,29 

when "estate" is applied to personal property, it 

may represent an absolute, or qualified, interest 29 

real estate of a partnership, on dissolution, treated 

asp-rsi) I tv, and part of the assets 269 

EFFECTS, (See i; jods. Warrs, MERCHANDISE, Etc.) 



FIX. INDEX. 335 
[Eeferenoes are to Pages.] 

EXECUTOR, (See Title by Will or Testament.) 

question of fixtures between executor and heir, 
devisees, executor of tenant for life, and re- 
mainder man or reversioner 11 13 

succeeds to decedent's liability on subscription for 

stock 267, 268 

EXECUTION, 

interest of an owner in common subject to 86 

and so of a partner's in the common property 41 

money subject to levy under execution 275, 276 

EQUITY, 

enforces equitable assignments 127 

upholds gifts between husband and wife 129 

furnishes remedy for infringement of trade-marks.. 103, 104 

remedy in, for infringement of copyright 91 

restrains violation of author's right in lectures 96 

remedy in, for infringement of patents 81 

decrees payment of subscription for stock, for the 

bonefltof creditors 262 

aids stockholder in securing his rights „ 257-261 

rules in, governing the transfer of stock 265, 266 

affords rehef to mortgagor... 299, 300 

foreclosure of equity of redemption in 301, 302 

remedy of landlord in, for arrear of rent 319 

restrains unauthorized publication of letters 92 

enforces specific performance of contract 206 

EXPECTANCY, (See Personal Property.) 

personal property in, now recognized 81 

EXCLUSIVE, 

exclusive right of property defined 1 

EVICTION, (See Bent.) 

when a defense to an action for rent 820-322 



FEUDAL, (See Estate, Real, and Personal.) 

distinction between feudal, and allodial, tenure .... 28, 29 
FIXTURES, 

defined 9 



336 INDEX. GIF- 

[Ileferences are to Pages.] 

FlXTXmES— Continued. 

ambulatory; sometimes real and sometimes personal, 

property — 9 

conditions that may determine which . ft 

rules for guidance in determining 10, 11 

annexation to the soil, actual, or constructiv^e . 10, 11 

character of, affected by the parties interested 12 

time of removal — 33, 13 

as subjects of chattel mortgages . 295, 396 

FORECLOSURE, (See Mortgages.) 

of the equity of redemption 359, 360 

FORFEITURE, 

definition, and examples of 105, 106 

law of in England, and in the United States 106 

when title passes by 107 

forfeiture for crime limited in the United States 106 

of -stock for non-payment of subscription 359, 360 

forfeiture odious in law 107 

FRAUD, 

vitiates title to trade-mark. 100 

affects the validity of patents 79 

its effect upon wiUs 138, 139 

vitiates contracts of sale 173, 179 

impeachment of judgments for 278, 279 

FRUITS OF THE EARTH, (See Accession.) 

title to, by accession 65, 66 

FURNITURE, (See Chuech Fdknituee.) 

G. 

GIFTS INTER VIVOS, 

definition, and subjects of _ 135, 136 

delivery essential 126, 137 

may be constructive or symbolical, or to a third 

person 126 

debt due from donee to donor suject of a gift to the 

former 126 

donor may make himself trustee of the gift 126 

gift of a chose in action by assignment. 127 



GOO. INDEX. 337 

CReferences are to Pages.] 

GIFTS INTER YTV08— Continued. 

stolen goods not the subject of a gift as against the 

owner 127 

gifts prejudicial to the rights of creditors invalid... 127 

gifts on condition, with reservation, or in trust 128 

gifts between parent and child 128 

a gift ordinarily not presumed 129 

gifts between husband and wife _ 129 

when upheld in equity _ 129 

gifts, when revocable, and when irrevocable 129 

GIFTS CAUSA MORTIS, 

defined 130 

law of , derived from the civil law 130 

occupy middle ground between gifts inter mvos, and 

legacies^ 130, 131 

essentials to gifts causa mortis 131, 132 

donee derives title directly from donor 133 

delivery essential 132 

distinction between delivery to agent of donor, and 

a trustee of the donee 132, 133 

revocation of ; not revoked by donor's subsequent 

wiU 133,134 

GOODS, LOST OR ABANDONED, 

the finder acquires title by occupancy 58 

owner's title and rights not lost until he abandons 

the intention of reclaiming his goods 69 

the finder, if he knows the owner, and conceals the 

finding, may be held guilty of larceny _ 69 

acquisition of title by finding Umited to goods on the 

earth's surface ; not applicable to treasure-trove. 60 

stolen corporeal property recoverable by the owner, 

evenfroni a bona fide purchaser 60 

a different rule applies to money, bank notes, and 

current negotiable securities - 60, 61 

duties of the finder, compensation, etc 61 

title not acquired by tortious conversion - 69, 70 

GOODS, WARES, MERCHANDISE, EFFECTS, AND 
CREDITS, 
meaning, and use, of the terms 29,30 

22 



338 INDEX. nrs. 

[References are to Pages.] 
GRANT, 

' of burial lot in a churchyard, or public cemetery, 

generally an easement 1 23 

H. 

HElR-LOOM. 

character, and law of , defined 18 

examples of , 19 

do not pas3 by devise or bequest separate from the 

freehold; the reason 19 

HONEY-BEES, 

property.'in and rules governing 64 

HUSBAND AND WIFE, (See Marriage.) 

wife's chattels transferred to husband by marriage_ 121 

law in regard to gifts between 129 

HYPOTHECATION, (See Bottomry, and Respondentia, 
Bonds.) 
master, or owner, may hypothecate ship, or cargo. 804, 305 
by master, does not transfer property of the ship 306 

I. 

INDORSEMENT, 

title by, and sale of negotiable instruments 208, 209 

INFANT, 

testamentary capacity of 137 

competency to contract 144 

INJUNCTION, 

unauthorized publication of letters restrained by 92 

violation of proprietary right in lectures restrained 

by 96 

infringement of trade-marks restrained by 96 

husband sometimes restrained from recovering 
property of wife in an action at law 124 

INSOLVENCY, 

meaning of the terms insolvency, and bankruptcy... 117 

distinction between bankrupt, ajid insolvent, laws .. 117, 118 

general purposes, and effect, of insolvent laws 118, 119 

United States bankrupt, and insolvent, laws 119, 120 



JOI. INDEX. 339 

[References are to Pages.] 

mSOhYENCY— Continued. 

limitations of the power of the States to make 130 

when statutes of the United States and of the States 
conflict, the latter are suspended, but not abro- 
gated by an act of Congress 121 

the classes of persons embraced by insolvent laws 119 

INSURANCE, 

defined, and terms employed 330, 321 

nature, and form, of the contract 221-224 

the several classes of policies defined 224-226 

consummation of the contract 226-338 

what constitutes delivery 228 

subject-matter of the contract 238, 239 

insurable interest.- 229-231 

warranties, and representations; two classes of each, 

afflrmative and promissory 231-333 

special provisions of the contract 234r-337 

limitation of time for commencing an action on the 

policy - 235, 336 

provision for arbitration, to what extent binding ... 236, 337 

mutual insurance 287-239 

INTENTION, 

of parties a factor in determining the character of a 

thing as a fixture, or otherwise 11 

as affecting question of a transfer of title 16S 

INTEREST (See Joint Owners), 

interest policy of Insurance 224, 325 

INTESTACY, 

definition, history, and incidents of 1 13-1 1 7 

where title to intestate's property rests intermediate 
his death, and the appointment of an adminis- 
trator.*. ,... 112-117 

J. 

JOINT OWNERS, 

joint-ownership defined, and the unities constituting 

it explained. ...... 82 

rules appertaining to the relation 82-34 



340 INDEX. LAS. 

[References are to Pages.] 

JOINT OMVNEBS—Contiuued. 

each entitled to an equal share of the rents, income 

and profits, during his life 34 

possession of one, the possession of all 34 

joint-ownership, how severed 34 

partners joint owners of their stock in trade and 

effects, but without the right of survivorship 3* 

JOINT-STOCK COMPANIES, 

defined; in what respects like, and in what unlike, 

corporations, and partnerships 46, 47 

business managed by officers and agents 49^ 

may take, hold, and alien, property, real, and per- 
sonal 49 

are regulated by statute 47 

JOINT TENANTS, (See Joint Owners.) 

each may distrain for the whole rent in arrear . 813 

JUDGMENT, (See Debts.) 

defined, and classified 110 

whether judgments are contracts 110 

what, and when, judgments transfer title 110-112 

authority of a judgment roU of a court of record 378, 279 

impeachable for want of jurisdiction, or fraud 278, 279 

distinction between courts of general, and of sp'ecial, 

jurisdiction 279 

as to impeachment of foreign judgments 280 

effect of, && res judicata 282, 290, 291 

JURISDICTION, (See Debts— Judgment.) 

impeachment of judgments for want of 278-280' 

L. 

LANDLORD AND TENANT, (See Rent.) 

question of fixtures between 12 

landlord's remedies for rent in arrear 310-330 

LARCENY, 

finder of lost goods may become guilty of 59 

LAST WILL OR TESTAMENT, (See Title by Will or 
Testament). 



Lm. INDEX. 341 

[Beferenoes are to Pages.] 

LECTURES, 

product of intellectual labor 94 

their creator has a common-law proprietary right in 

them 94 

the right not lost by oral delivery 95 

as to rights of persons admitted to hear public lec- 
tures 95 

the same rules, substantially, apply to playright 95 

statutes in England, and in the United States 96 

remedies for violation of the right 96 

LEGACIES, 

likeness, and unlikeness to gifts causa mortis 130 

the several kinds 135 

defined, and classified '- 340-342 

minor divisions, rules, and incidents 343-246 

residuary legacy 243 

vested, and contingent, legacies __ 244 

absolute, and conditional, legacies 245 

lapsed legacies 245, 246 

abatement of.. - 247 

ademption of 347,248 

payment, and satisfaction, of 249-251 

LETTERS BETWEEN CORRESPONDENTS, 

products of intellectual labor, and subjects of prop- 
erty - - 93 

respective rights of the writer, and receiver 92 

unauthorized publication of, restrained by a court of 

equity - 93 

every letter, in contemplation of law, has literary 

merit, in which a property right exists 93 

the receiver has a corporeal property in the material 
on which the letter is written, and the right to 

its possession 94 

LIEN, (See f al^s.) 

vendor's lien on sale of goods 189 

corporation's for debt of share-holder 266 

stock in hands of vendee may be subject to a corpo- 
rate lien for debt of vendor to the company SCO 

LIMITATIONS, 

of absolute ownerwhlp - 8-5 



342 



mDEZ. MAB. 



[References are to Pages.] 

LIMITATIONS— ConWnMed. 

common law, and statutory , limitations 81 3-314 

when the period of limitation begins to run 119, 1 20 

debt barred by statute revived by new promise 215-320 

no new consideration requisite 319 

revival of barred debt by acknowledgment 216-219 

eflfect of part payment 218 

limitation affects the remedy, only 218 

limitation of action on policy of insurance 235, 236 

on deposit notes in mutual insurance company 239 

M. 
MANURE^ 

when real, and when personal, property ..1. 20, 21 

MAIL, 

payment by 197 

offar by 145 

MARITIME, 

right of seizure of enemies' goods in war 66-58 

MARITIME INTEREST, 

extra interest for loan of money on bottomry, or 

respondentia, bonds 803 

MASTER OF SHIPS, (See Bottomet and Respondentia, 
Bonds.) • 

personally bound on bottomry bond executed by him. 306 

MAERIAGE, 

transfers wife's chattels to husband 121 

husband's right to wife's ehoses in action, and how to 

obtain absolute title, and possession 123 

they belong to the wife in her own right, when the 

husband dies before reducing them to possession. 122 

•when husband can gain possession only through 

administration of wife's estate 123 

no unjust discrimiaation in law against the wife 123, 124 

marriage lays burdens upon the husband, from 

which the wife is relieved 123,134 

marital unit broken into fractions by modern legis- 
lation _ 124 

marriage, as affecting wills 141 



HON. INDEX. 343 

[References are to Pages.] 

mAteeials. 

title by accession on union of materials of different 

persons 67-70 

MAXIMS, 

usquce ad ccelum ; usqucB ad inferos S 

Sio utere tuo ut alienum non loedas 3 

salus populi supremalex 4 

vigilantHms, non dominentibus, leges mbveniunt... ' 103 

eessante ratione legis, cessat ipse lex „ 67, 169 

qui prior est in tempore, prior est in jure 75 

ignorantia Juris neminem excusat _ 169 

caveat emptor 173 

simplex commendatio non dbligat 173 

MERCHANTABILITY, (See Sales.) 

{Warranty of in sales : 184 

MERCHANDISE, (See Goods, Wakes; Meeohandise, Etc.) 

MISTAKE, (See Sales.) 

mistake of fact negatives assent... 146 

its effect in avoiding contracts 169, 170 

MOBILITY, (See Real, AND Personal Property.) 

the principal characteristic of personal property.... 2, 6 

MODE. 

modes of acquiring title classified and analyzed 60, 51 

MONEY, 

a price in, paid or promised, essential to a sale 148, 149 

what constitutes a good tender 199 

"money" defined 273 

constitutional money 273-376 

the "Legal Tender Acts" 273-375 

the States may prescribe the currency in which 

debts due them for taxes may be paid 275 

creditors may stipulate in contracts In which debts 

due them thereunder shall be paid 275 

subject to levy under execution 275, 376 

stolen', not recoverable by owner from a bona fide 

purchaser 60, 61 

MONUMENTS, (See Mortuary Property.) 

personal property of holder of the burial lot 23 



344: INDEX. OCO. 

[References are to Pages.] 
MORTGAGES, 

definition . and essential elements of 291,393 

formal requisites of 292-394 

parol chattel mortgages valid at common law 393, 393 

writing generally required by statute 293 

separate, and parol, defeasance - 293, 294 

subjects of a chattle mortgage 294-296 

fixtures may be 295, 296 

possession of the mortgaged property 296-398 

distinguished from a pledge 398, 399 

from a conditional sale with the right to re-purchase 300, 301 

relief in equity for the mortgagor 299, 300 

foreclosure of the equity of redemption 301, 303 

MORTUARY PROPERTY, 

kinds, legal rules, and burial rights 22-34 

grant of a burial lot generally an easement only 23, 33 

vaults, monuments, and decorations of the grave, 

personal property of the holder of the lot 23 

a quasi property in a corpse, giving relatives the 

right of custody and control _ 23 

to whom the right, and place of, burial belongs 33, 24 

N. 

NEGOTIABLE SECURITIES, (See Indorsement), 

title of a bona fide purchaser protected 60, 61 

sale of , and indorsement 208, 209 

NEW PROMISE, (See Limitations.) 

refvi ves debt barred by the statute 215-220 

NOTE, ETC., (See Sales.) 

requisites under Statute of Frauds 160 

NOVATION, (See Debts.) 

defined, and discharge of debt by 389, 390 

o. 

OCCUPANCY, 

the first known method of acquiring title 53-55 • 

foundation of the right of private property 53-55 

property acquired by appropriation 54 



own. 



INDEX. 



345 



[References are to Pages.] 

OCCUPANCY— Conimwed. 

right of possession originally limited to act of posses- 
sion - fS4 

title by capture in war _ 55-58 

maritime right of seizure 56-58 

of goods lost or abandoned 58-61 

title by finding not extended to treasure-trove 60 

finder's duty to take proper care of the goods 61 

waifs, what they are, and the law of. 61, 62 

reclamation of animals ferce natures 62-65 

dividing line between wild, and tame ..- 63, 64 

honey-bees, property in, and law governing 64 

title by accession, and confusion of goods' . _. 65 

title to fruits of the earth 65, 66 

title to increase of animals 66, 67 

materials of diflEerent persons united 67-70 

respecting materials wrongfully converted 69,70 

title to products of intellectual labor 70, 71 

patents for inventions and designs 71-83 

copyright, the law of 82-92 

letters between correspondents 92-94 

lectures, property and rights of authors in 94-96 

trade-marks, the law of. 96-114 

OFFER, (See Sales.) 

different modes of, and acceptance . - 145-147 

under the Statute of Frauds 155-153 

OFFICERS, 

of corporations, authority and power of 43 

of joint-stock companies 47 

ORGANIZATION, 

liability of stockholders in ease of defect In 263, 364 

OWNER, 

of stolen corporeal property may recover it, even 

from a bonaflde purchaser 60 

not so in respect to money, bank notes, and com- 
mercial paper indorsed' in blank, or payable or 

indorsed to bearer 60, 61 

OWNERSHIP IN COMMON, (See Tenants in Common.) 

defined, and how diflfering from joint-tenancy 35 

incidents and rules of - 85, 36 



34:6 INDEX. PAB. 

[References are to Pages.] 

P. 

PARENT AND CHILD, 

gifts between 128 

PARTIES, 

how question of flytures affected by 11,12 

competency to contract 144 

testamentary capacity 136-139 

PARTNERS, 

definition, and leading characteristics, of 38 

joint owners of ^their stock in trade and effects, but 

without survivorship 39 

on dissolution of partnership they become tenants in 

common of the partnership property 39 

death of one works a dissolution of the partnership. 39 
his interest passes to his personal representatives, 
■who become tenants in common with the sur- 
vivors : 89 

the survivors have the exclusive right to the posses- 
sion of the partnership property, for the purpose 
of closing up the affairs of the concern, and 
adjusting the equities ; but they hold the prop- 
erty as trustees 39, 40 

real estate of the partnership treated in equity as 

personal property 40 

each partner is the agent of all 40, 41 

as to his authority to assign partnership property, 

without consent of his co-partners 40, 41 

interest of each partner in the tangible property 
liable to sale on execution for payment of his 

debts -- 41 

the purchaser becomes a tenant in common with the 

other partners . 41 

PAROL, 

chattel mortgages when valid 292, 293 

as to parol defeasance of mortgages 298, 294 

PART-OWNERS OF SHIPS, 

their relation defined, and distinguished from joint 
owners ;i generally tenants in common of the 
ship, and may be partners 87,38 



PEE. INDEX. 347 

[References are to Pages.] 
PATENTS, 

title to by original acquisition 70,71 

defined, and policy of the law of 73 

contract between the inventor and the State 72 

subject, of regulated by statute.. 73 

essentials in a patentable invention 73-77 

mode of obtaining, and conditions of, a valid patent- 77-80 

other points in the law of patents 80-83 

PAYMENT, 

by note or bill 193-195 

by check or draft 195,196 

in counterfeit or worthless biUs 196 

in specific articles 197 

in "Legal Tender " notes 273-375 

payment by mail 197 

on Sunday, effect of 198 

part payment under Statute of Frauds 159, 160 

payment by vendee on sale and purchase 198 

debt barred by statute of limitations, revived by part 

payment 315-320 

payment of legacies 349-351 

appropriation of payments 197,198 

PEEFOEMANCE, 

specific performance of contracts of sale 306 

delivery, in performance of the contract 185-189 

PERSONAL PROPERTY, 

its characteristics ; mobility the leading one 2-6 

change from personal to real; and vice versa 6 

duration of enjoyment an element in 7, 8 

real estate of a partnership treated as personal prop- 
erty in equity 40 

brain products, personal property. c 70, 71 

patents for inventions and designs 72 

letters between correspondents 92, 93 

personal property in expectancy 81 

statutes against perpetuities apply to 81 

wife's personal property transferred to her husband 

by marriage, at common law „ 133 

devolution of, on dealth of the owner 824, 335 



348 INDEX. PEO. 
[Keferenoes are to Pages.] 

PEW, (See Chtjech Furniture.) 

rights of pew-holder 21,29 

PHONOGRAPH, 

communications by _-- - 146 

PLEDGE, (See Mortgage.) 

as distinguished from a mortgage - - 298, 299 

liability of pledgee of stock 367 

POSSESSION, 

one of the unities constituting joint-ownership 32 

possession of one the possession of all 34 

the only unity in a tenancy in common 35 

right of possession originally limited to act of posses- 
sion 64 

transfer of title and possession an advance step in 

the history and rights of property 55 

of mortgaged property 296-298 

PRESUMPTION, 

a gift not ordinarily presumed 129 

PRODUCTS, 

of the brain, title to by accession 70, 71 

of the fruits of the earth, title to -.. 65, 66 

what products a tenant may remove 14 

PROMISE, (See Limitations.) 

new, to revive debt barred by the statute 215-220 

PROPERTY, 

the term defined, audits uses 1, 2 

distinction between real, and personal 2, 6 

absolute, and qualified, defined 3 

limitations of absolute ownership 3,4 

property in brain products _ 70, 71 

in patents for inventions and designs 73 

in letters between correspondents 93,93 

in lectures __ 94, 95 

in trade-marks _ 96, 99 

gttasi property in a corpse 23 

qualified, in captured wild animals 62, 65 

.absolute property in a thing essential to a sale 147 

general property in bailor, special, in bailee 210, 211 



EEN. INDEX. 34& 
[References are to Pages.] 

R. 

REAL PROPERTY, (See Real, and Personal, Peopeett.') 

defined, and what it includes S 

RECEIVER, 

in bankruptcy of a stockholder, power and duty of.. 263 

RECLAMATION, (See Animals.) 

a remedy of vendor on sale of goods 203, 203 

RE-INSUEANCE, (See Instjeance.) 

RELEASE, (See Debts.) 

discharge of debts by 286-288 

REMEDIES, 

for infringement of copyright 91 

for infringement of a patent 81 

for violation of author's right in his lectures 96 

for infringement of a trade-mark 103, 104 

restraining the unauthorized publication of letters.. 92, 93 

of vendee on purchase of goods 204-307 

of vendor on sale of goods 200-204 

of a corporation against a stockholder 359-262 

of mortgagor in equity 299, 800 

of holder of bottomry bond in a court of Admiralty. 307 

landlord's remedies for rent in arrear 310 

RENT, (See Landlord and Tenant.) 

definition, and properties of 308 

the kinds of rent 309, 310 

landlord's remedy for rent in arrear by distress 310-316 

essentials to the right of distress, and incidental 

rules 311-316 

the right canceled by a legal tender 312, 313 

not extinguished by an unsatisfied judgment 313 

any one of several joint tenants may distrain 813 

goods and chattels distrained must be safely kept... 315, 316 
landlord may have an action of debt for rent due 

andinarrear 816,317 

an action of covenant 317, 318 

an action of assumpsit 818, 319 

or a suit in equity in some cases 319 



350 INDEX. SAL. 

[References are to Pages.] 

U'ENT— Continued. 

tenant's obligation to pay rent _ 330-3S2 

apportionment of rent 323, 323 

REPRESENTATIONS, (See Sale— IifsUBANCE.) 

on sale of goods 173-174 

in contracts of insurance 283, 333 

two classes, affirmative and promissory 333 

RE-SALE, (See Sales.) 

when vendor may re-sell 301, 203 

REVOCATION, 

wills, how revoked 140, 141 

of gifts inter vivos, and causa mortis 129, 133 

s. 

SALES, 

defined; elements of a valid sale. — 143-144 

parties competent to contract 144 

mutual assent -.. 144r-147 

offer and acceptance 145, 146 

withdrawal of offer before acceptance. 146 

mistake of fact negatives mutual assent 146 

subject of the sale 147, 148 

vendor must have an absolute property in 147 

must have an actual, or potential, existence. 147, 148 

a price in money, paid or promised 148, 149 

the contract as affected by the Statute of Frauds 149-160 

it embraces both executory, and executed, contracts 150 

contracts not embraced in it 150-152 

what embraced in "goods, wares, and merchandise," 152-154 

statutory Umit of " £10 and upwards " 154,155 

acceptance and receipt 155-158 

"earnest, or part payment" 159, 160 

" note or memorandum in writing" 160 

contracts in respect to passing title 164-169 

intention of the parties 165 

delivery as related to transfer of title 165, 166 

sale of specific goods unconditionally 166, 167 

of specific chattels conditionally 167 



esA. INDEX. 851 

[Beferenoes are to Pages.] 

SAliEa—Continued. 

I of goods not specific , 167,168 

appropriation on sale of goods not specific 168 

failure of consideration 1 170, 171 

illegality of consideration. 171, 173 

fraudulent sales, voidable 172 

misrepresentation, or concealment 1-73-174 

intent to deceive an essential element 174 

reliance upon representations, and damage 175 

fraud on vendor 176-178 

on creditors 178, 179 

illegal contracts of sale 179, 180 

conditions, and conditional sales 180, 181 

warranties on sales 183-185 

in sales by sample 183 

in sales by description 184 

as to merchantability _ 184 

fitness for a particular use . 184 

in sale of provisions 184 

of commercial paper 185 

delivery in performance of the contract 185 

how, and where, delivery to be made 186-189 

delivery to a common carrier 187 

kinds of delivery, quantity, and time of 187, 188 

acceptance, the complement of delivery 189 

the vendor's lien. 189 

stoppagem transitu 1 190-193 

tender by the vendee 193, 199, 200 

remedies of the vendor 200-304 

reclamation of the goods 203 

actions by the vendor 203, 304 

remedies of the vendee 204-208 

specific performance of the contract 306 

SAMPLE, (See Sales.) 

warranty on sales by . 183 

SATISFACTION, 

of legacies— .,. — , 349-251 

of debts 385, 386 

SEAMEN, 

wages of, preferred claims 306 



362 INDEX. SXJE. 
[References are lo Pages.] 

SHARES, (See Stock and Stockholders— Distributive Shakes.) 

SHIP, (See Bottomry and Respondentia, Bonds.) 

relation of part-owners to each other, and to third 

persons - 37, 38 

property in, not transferred by hypothecation 306 

STATUTE OP FRAUDS, (See Sales.) 

effect of, in contracts of sale 149 

STOCK, 

what it embraces in corporations 45, 254 

stock, and shares of stock, defined J 253-255 

rights of a shareholder summarized 254, 255 

acquisition of title by subscription 256, 257 

by a transfer 257 

liability of stockholder to the company, and its 

creditors 257-262 

subscription, a contract to pay on " calls ". 258, 259 

remedies of company for unpaid subscriptions 259-262 

statutory liability of a stockholder 262, 263 

stock notes in mutual insurance companies 238, 239 

STOLEN PROPERTY, 

stolen corporeal property recoverable by the owner, 

even from a &ono^de purchaser 60 

■• a different rule obtains in respect to money, and 

negotiable commercial paper 60,61 

not the subject of a gift as against the true owner. .. 127 

stolen goods of a foreign merchant not deemed waifs 62 

STOPPAGE IN TRANSITU, (See Sales.) 

a remedy of vendor 190, 193 

SUBSCRIPTION, 

for stock, rights and liabilities of subscriber 256-267 

SUCCESSION, (See Corporations.) 

definition, and kinds 107, 108 

common law succession 108-110 

incorporations aggregate 109 

when it exists, and when not, in sole corporations .. 109 

SUNDAY, 

effect of payment on - 198' 

SURVIVORSHIP, (See Joint Owners.) 

a characteristic of joint-ownership 1 33 

does not belong to ownership in common 35 



TIT. INDEX. 363 
[References are to Pages.] 

T. 

TENANT, (See Emblements— Landlord and Tenant — 
Rent.) 

question of fixtures between landloi'd and tenant 11, 13 

removal of fixtures by tenant 18, 13 

what products tenant may remove 14 

who, and when, entitled to remove products 14-17 

relation and rights of tenant in common 35-37 

obligation of tenant to pay rent -. 320-322 

when eviction a defense to an action for rent 320-323 

TENANTS IN COMMON, (See Ownersaip in Common.) 
partners are, of the partnership property, on a disso- 
lution of the partnership 89 

purchaser of a partner's interest becomes a tenant in 

common with the other partners 41 

TENDER, (See Sales — Money.) 

by vendee on purchase of goods 198 

the requisites of a good tender 199-200 

as to the effect of the ' ' Legal Tender "Acts 272-275 

right of distress canceled by a legal tender 312, 313 

TESTAMENT, (See Last Will or Testament.) 

TIME, 

one of the unities in joint ownership 32 

for the removal of fixtures 13, 13 

of noting contract under Statute of Frauds 161, 163 

of delivery on sale of goods 187 

time-policy of insurance 336 

limitation of time for commencing actions 313-314 

TITLE, 

modes of acquiring title to personal property classi- 
fied andanalyzed 50, 51 

one of the unities in joint-ownerghip 33 

cannot be acquired by a willful tort ..- 70 

when title passes in case of forfeiture 107 

when a judgment transfers title 110-113 

legal title of intestate's property in the adminis- 
trator 116 



354 INDEX. TEU. 

[References are to Pages.] 

TITLE— Continiied. 

wife's title to her chattels transferred to her hus- 
band by" marriage - 121 

title by will or testament 134^143 

methods of acquiring title to stock 257, 258 

title by assignment 210 

by indorsement 208, 209 

by bailment *... 210,211 

by finding .. .... 58-61 

where title to intestate's goods rests intermediate his 
death, and the appointment of an adminis- 
trator 112, 117 

TORTS, 

damages for injuries resulting from 112 

wrong doer not allowed to profit by his tort Ill 

TRADE-MARKS, 

defined 96, 97 

in what sense property 97 

how differing from copyright 97 

a common law right 97 

what may, and what may not, be adopted and used 

as a trade-mark 98 

by whom, and how, acquired-. 99-103 

freedom from fraud 100 

title to, will pass by operation of law 103 

what constitutes an infringement 103,103 

remedies for infringement 103,104 

TRUST, 

survivors of a deceased partner, trustees of the part- 
nership property 39, 40 

executors and administrator's hold decedent's prop- 
erty in trust 116 

assets of a corporation, on dissolution, a trust fund 

for the benefit of creditors 268, 369 



WA£. INDEX. 355 

[References are to Pages.] 

V. 

VAULTS, (See Mortuary Property.) 

when, personal property.- 23 

VENDOR AND VENDEE, (See Sales.) 

question of fixtures between 11, 13 

fraud on vendor in sales 176-178 

when, and when not, an implied warranty in a sale 

of personal property 183-185 

duty of vendor to deliver when the sale is complete. 185 

his lien on a sale of goods 189, 200, 201 

right of stoppage in transitu 190 

tender by vendee on purchase of goods 193 

special damages for breach of contract 205 

VOLUNTARY, 

meaning, as generally used in the law 125 

VOYAGE, (See Insurance, Bottomry, and Respondentia, 
Bonds). 

W. 

WAIFS, 

stolen goods, waived or thrown away by a thief in 

his flight 61 

if seized before the owner reclaims them he loses his 

title - 61, ea 

to whom the title passes, and how tHe owner may 

regain his goods 62 

stolen goods of a foreign merchant, not deemed 

waifs -,- 6a 

"WAGER-POLICY, (See Insurance.) 

a wager-policy invalid.. 22£ 

"WARES, (See Goods, Wares, and Merchandise, Etc.) 

WARRANTY, (See Salss ■ - Insurance. ) 

several kinds in sales 182-185 

on sales by sample • 18S 

by description 184 

of merchantability 184 



366 INDEX. WIL. 

[References are to Pages. ) 
WARRANTY— Conimued. 

of fitness for a particular use 184 

in sale of pi-ovisions - 10^ 

of commercial paper 185 

when there is, and when not, an implied warranty 

of title in a sale IBS 

reipedies of vendee for a breach of 206, 207 

warranties in contracts of insurance 231,132 

WAR, (See Capture.) 

seizure and confiscation of enemies' goods in time of 

war 55§58 

WIFE, (See Maeriage, Husband and Wife.) 

WILL, (See Title by Will or Testament.) 

of donor does not revoke a gift causa mortis 134 

title by, derived immedtately from testator 134, 135 

will or testament defliied 136 

testamentary capacity 136-139 

written, and unwritten, wills 139 

revocation of wills... .■ 140, 141 

when the will takes effect 141, 143 



Date Due 



OCT "2'*< ^ 
























































































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- - - - 









KF 705 S6l^ 



Author 



Smith, Horace Edwin 



Vol. 



Title 



A Treatise on the law of 



Copy