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Full text of "A treatise on the American law of real property"

TO THE IIONORAnLE 

JUSTICES OF THE SUPREME JUDICIAL COURT 

OF MASSACHUSETTS, 

TO WHOSE LAHOUS I AM I.NDEHTED FOR SO Mi;CII OF WHAT 18 
VALUABLE IN THE WOKK, I DEDICATE THIS UNI'UE- 
TENDINO EFFOKT TO ELUCIDATE A DEPART- 
MENT OF AMERICAN JURISPRUDENCE. 

In doing this, I desire to add to the traditional veneration 
for this Court which I have shared in common with the peo- 
ple of the Commonwealth an expression of personal respect- 
for its members, which the long intercourse into which I 
have been brought, since my admission to its bar, has served 
to develop, and constantly to strengthen. 

Within tliat time, every one of its members has been 
changed. Men, the loved and the honored, have one after 
another passed away in the fulness of their fame, and others 
are now occupying their field of honorable labor ; but illus- 
trious as are the names tliat stand out upon its records 
among the great and good men of the Commonwealth, never 
have its laws been more ably, faithfully, and acceptably 
administered than by those who now occupy these seats of 
justice. 

To bear my humble tribute to the official and personal 
qualities of the men who have in this field won and sus- 
tained the united respect of an appreciative public, I sub- 
scribe myself 

Their obliged and obedient servant, 

EMORY WASHBURN. 

Cambridge, July, 1860. 



670349 



P R E F xV C E 

TO THE FIFTH EDITION. 



In presenting to the profession this fifth edition of Wash- 
BUKX ON Real Property, the first issued since the author's 
death, a few words of preface seem proper. Of the work itself, 
but little more need be said than to refer to the fact that for 
twenty-six years it has hold its place nnchallontrcd, as the only 
comprehensive American treatise on the subject of Real Proj)- 
erty ; although various valuable works on special topics have 
appeared, notaldy witliin the last ten years. Since its first 
appearance, it has, as an authority in the courts and a text- 
book in the schools, not only formulated the existing law, and 
helped in no inconsideraljle degree to develop and harmonize 
it, — a function which every sound treatise achieves to a greater 
or less extent; but its very language has, by frequent judicial 
citation, become incorporated in the authoritative law of many 
of the States. 

The law, however, never stands still, and the multitude of 
decisions and tlio important statutory changes that have been 
made in the di'))artmcnt of Real Property in the decade 
since the last edition of this work appeared, have called for 
very extended labor in the direction of condensation as well 
as of addition. The author's death occurring so soon after 
that edition came out, devolved much the larger part of this 
labor upon the editors. In the discharge of this duty they 
have for the most part confined their additions to the notes. 
The changes in the text have been mainly limited to the 
removal of some obvious errors in the form of statement, and 



Vi PREFACE TO THE FIFTH EDITION. 

to the excision of statutory matter superseded by recent legis- 
lation, and of repetitions chiefly to be found in what was added 
by the author after the first edition. 

In the chapter on Homestead, however, as the foundation of 
the law was wholly by enactment, the additions and correc- 
tions have been substantial, so as to bring the text, as nearly 
as mio-ht be, abreast with the present condition of the law. 
Whatever o})inion may obtain as to the propriety of originally 
including a topic of this character in a general common-law 
treatise, the editors had no choice but to retain it, and, if re- 
tained, to have it as nearly complete as space would permit. 
For although the ground had been covered by Mr. Thompson's 
valuable work, yet, in the interval since the publication of his 
book, the new decisions number over fifteen hundred. In other 
places, also, it will be found that such additions have been 
made to the text as were necessary to cover the development 
of several branches of the law. 

In the more mechanical parts of these volumes — the index, 
table of cases, and verification of citations — no pains have 
been spared to ensure accuracy; and the editors trust that 
the results will be satisfactory to the profession. 

J. W. 
S. G. C. 

Boston, December, 1886. 



PREFACE 

TO THE FOURTH EDITIOX. 



To carry out the original purpose and desicrn of the present 
work renders it necessary to add to or modify its statements 
and propositions, from time to time, to conform to the growth 
and progress of the law. It was intended to give a connected 
view of the law of Real Property as it prevails in the several 
States and under the Federal government, so far as it could 
be regarded American in its character. For this purpose, it 
was not only necessary to collect and collate the decisions of 
the State and Federal courts, but to make liberal reference 
to English reports and accredited treatises, and from these to 
form, so far as might be, a consistent and complete system of 
this department of the law. 

If successfully accomplished, two objects would be attained : 
the profession and the student would be sujiplied with a work 
that seemed to be needed for use ; and a process of assimila- 
tion among the laws of the different States would thereby be 
promoted, and the bonds of union between them gain strength 
by an identity of domestic institutions and popular thought. 

Judging from the manner in which the work has been re- 
ferred to by the various courts, it is believed that it has not 
wholly failed in either of these respects. 

Since the publication of the last edition, some two thou- 
sand cases have been decided by the courts, which bear 
upon the subjects-matter of the work, by which, and other 
causes, changes and modifications of sullicient magnitude and 
importance in the existing rules of law have been wrought 



Vlll PREFACE TO THE FOURTH EDITION. 

to call for an effort to collect and embody these into the work 
as it had already been given to the public. An edition, there- 
fore, which should embrace these cases, seemed to be a neces- 
sity, and has accordingly been prepared. Where these cases 
were in effect a re-statement of well-considered points of law, 
they have been referred to simply by name. But to such of 
them as contained new points, or presented a principle already 
familiar in an original or more elaborate form, have been as- 
signed a more extended discussion and examination ; and, in 
so doing, a statement of the facts and circumstances of par- 
ticular cases has, at times, been adopted, which might, perhaps, 
seem, at first sight, more consistent with the idea of a digest 
than a summary treatise. Where this has been done, it has 
been for the purposes of illustration and explanation. 

This accumulation of cases has arisen, in no small degree, 
from the fact that the laws of the different States differ essen- 
tially upon many subjects ; and it is often as important to cite 
cases to show, that, upon a given point, the law of one State 
is not like tliat of another, as it is to state what the law of 
the former State, in fact, is. In this way, citations have often 
been multiplied upon a single point, beyond what, at first 
thought, might seem necessary or proper. 

In the matter of the changes wrought by the legislation of 
the States, new statutes are so frequent, and often so arbitrary, 
and it is, at times, so difficult to get ready access to them, that, 
if errors in this respect should be detected, the cause may, per- 
haps, be accepted as an excuse. In collecting and digesting 
the cases cited from the reports, liberal use, so far as they 
extend, has been made of the "American Reports," — a selec- 
tion made by Mr. Isaac Grant Thompson with excellent judg- 
ment and discrimination ; while an earnest effort has been 
made, from other sources, to make the examination and colla- 
tion of these reasonably complete. 

To give some idea of the topics upon which new or sub- 
sidiary matter will be found in the following pages, there 
may be mentioned, as among them, homestead exemption ; 
when and how far tenants may deny their landlords' titles ; 
what force a landlord may apply in expelling a tenant ; how 
far tenants are liable to others for injuries arising from the 



PREFACE TO THE FOUHTII EDITION. IX 

condition of the premises in their oceii]):inev ; liow far tlic 
tenant of one part of a il\vellin<^-honse can coni|)el a tenant 
of another part to join in makinji^ repairs ; whether the sale 
of pjrowint]^ trees and crops is within tlie ITth section of the 
statute of frauds ; how far absohito (h'eds can he shown, by 
parol, to be only mortgages ; the order in which owners of 
dilTercnt parcels of mortgaged promises are chargeable in the 
redemption thereof ; the validity of deeds, blanks in which 
have been filled after execution ; what American rivers come 
mider the category of navigable, and what are the boundary- 
lines of lands bordering upon them, and what of lands bound- 
ing by the sea, or by lakes and ponds; the jiower of courts to 
reform deeds, in order to correct mistakes ; how far erecting 
and occupying up to division-fences affect the title to tlie 
adjacent lands ; how far holding lands as partnership assets 
is a conversion of the same " out and out ; " and how far one 
liolding an easement of way can release or exchange it by 
parol. 

With such materials, and the space they necessarily occupy 
in a work like this, it has been impossible to avoid expanding 
it considerably beyond its previous limits in its present form. 
But while it has been an aim in its composition to keep it 
within the narrowest compass, its main purpose has been to 
bring the work up to the present time, and to render it as 
accurate and complete as could be done by personal effort 
and attention. 

Cambeidge, March, 1876. 



PRE F ACE 

TO THE FIRST VOLUME OF THE FIRST EDITION. 



The circumstances under wliicli tliis work is now offenMl 
to tlio profession are briefly tliesc : — 

When called upon to state and illustrate to the classes of a 
law school, collected from almost every State in the Union, 
the leadintr principles of the Law of Real Property, the author 
was led to believe that there was a want to be supplied by a 
work, which, while it retained so much of the En^lisli common 
and early statute law as applied to this country, should com- 
bine with it, as a basis, the elements of American law as the 
same had been developed in the legislation and judicial decis- 
ions of the General and State governments, in order to form 
as nearly as might be one homogeneous system. 

A conviction of the need of such a work, in the nature of 
an- elementary treatise, strengthened with reflection, till the 
result has been an attempt to achieve it in the present vohnnes. 

That to do this required the subject to be treated in some 
of its parts historically, and sometimes to refer to what had 
become practically obsolete, every intelligent reader will 
readily understand. The American statesman who should 
content himself with studying the simple text of the Consti- 
tution, witliout the light which English and Colonial history 
throws upon its provisions, would find himself at a loss to 
understand, or how to solve, many of the questions to which 
the construction of that instrument has given and is giving 
rise. 

So the American lawyer would find still greater difhculty 
in understanding that great unwritten body of principles which 



XU PREFACE TO FIRST VOLUME OF FIRST EDITION. 

form the basis of the common law of nearly every State in 
the Union, if he could not go back historically to the coming 
in of the feudal system at the Conquest, read the charter of 
Runnymede in the light of the circumstances which sur- 
rounded it, and trace the gradual loosening of the bands 
of tenure before and at the passage of the statute Quia 
Emptores. 

If the early English common law had no other application, 
a knowledge of it could not be dispensed with by a lawyer, 
as a means of understanding the terms and phrases in modern 
use, and as furnishing the elementary thoughts and opinions 
which have been and still are being wrought into the expand- 
ing and progressive systems of English and American juris- 
prudence. 

The English Law of Real Property has undergone surpris- 
ing changes within the last thirty years, whereby a process of 
assimilation in the systems of the two countries upon this 
subject has been going on, which is interesting to the Ameri- 
can lawyer, and renders a knowledge of the laws of each the 
more important in the courts of this country. 

Here was presented one of the most difficult problems in 
the prosecution of the present work. It seemed particularly 
desirable that it should not exceed two volumes of convenient 
size ; while to compress into that space all that should be said 
of the English law, as well as of the statutes and decisions of 
thirty-one different States and governments, each related to, 
and yet independent of, the others, seemed, at first sight, an 
impractical)le undertaking. How far the difficulty has been 
surmounted, the reader will determine. 

It has been the intention of the writer to state no proposi- 
tion as law which did not appear to be sustained by satisfac- 
tory authority. So far as the same could reasonably be done, 
those authorities have been cited. But, with all his precaution, 
this could not fail to load his pages with references ; and he 
has contented himself, not unfrequently, with citing an ele- 
mentary work of received authority to sustain a proposition, 
rather than to multiply the citations of cases which are to be 
found, if desired, in the elementary work referred to. In 
some instances, he has been obliged to rely upon the digest of 



• PREFACE TO FIRST VOLUME OF FIRST EDITION. xiii 

a roportctl case; but this has liccu ilone with caution, espe- 
cially wht'U the point to be stated or illustrated seemed to be 
new aud doubltul. On the other hand, he has, in i)ut a few 
instances, undertaken to jrivc dip'sts of reported eases, lie 
has endeavored to state i)rinciph's fully and clearly, and oidy 
for purposes of ilhistration has occupied space with a detail of 
the facts in the cases citetl. 

One thiiij^ he has had in view in tiie arrantrement and hll- 
ing up of his plan ; and that was to satisfy the reader that the 
Law of Real Property, as a system, was, in most respects, 
symmetrical and complete. The popular notion, it is true, 
is, that this branch of the law is inevitably dry, intricate, and 
distasteful. But if its terms arc less familiar, and its rules, 
from the remoteness of their oritrin, scemintrly more arbitrary 
and artificial, and, as a whole, it is less flexible and easy to con- 
form to the changing habits of a people tlian those of trade 
and commerce and the mere personal relations of society, it 
should not be forgotten, that, as a science, it altogether tran- 
scends those in exactness and certainty, and that many even 
of its sul)tleties disap])ear when the i-elations of its elements 
have been ascertained by study and investigation. 

It should not be forgotten that it lies at the foundation of 
the English common law itself ; that it was upon this sturdy 
stock that the laws and institutions of trading, manufacturing, 
commercial England were ingrafted, and are now in no small 
degree dependent for their element of vitality. 

Nor should it be overlooked, that with the Saxon love of 
land, and the Norman love of dominion over the sj)ot one 
calls his own, the law which regulates and enforces the rights 
of property in the soil will never cease to be of interest to a 
people in whose veins this common blood is mingled. 

It lias, moreover, been the field in wliieli the keenest intel- 
lect and most ])rofound learning of the best jurists of England 
and our own country have found am j tie scope and employment 
in grasping and analyzing its princij^les, mastering its subtle- 
ties, and testing and applying its rules. 

It is not surprising, therefore, that so many writers have, 
from time to time, employed their best powers in the prepa- 
ration of works embodying and illustrating the Law of Real 



XIV PREFACE TO FIRST VOLUME OF FIRST EDITION. 

Property. Every age since Glanville has had its writers upon 
this subject, and no period has been more prolific than the 
present. No English treatise, of course, covers the same 
ground as was proposed to be done in the present ; though it 
would be doing injustice to the treatise of JVir. Joshua Wil- 
liams, and the notes on leading cases by Mr. Tudor, among 
the more recent of those works, if acknowledgment had not 
been made, as it often is in these pages, for tlie aid they have 
afforded in the preparation of this work. They will, more- 
over, show the use which has been made of the earlier treatises 
of Blackstone, Fearne, Cruise, Sanders, Flintoff, Sugden, 
Butler, Crabb, Preston, Burton, and others already familiar 
to the American lawyer. The work will show, besides, how 
far he has availed himself of the labors of American authors, 
whose aid, when resorted to, he has intended fully to ac- 
knowledge. 

This attempt to produce a new work upon a hackneyed 
topic will not, it is hoped, render the writer obnoxious to the 
charge of presumption in view of the eminent ability of those 
who have gone before him. He hopes it may, at least, be 
found to possess the merit of being adapted to the wants of 
the American lawyer, as well as the American student ; and 
if, in its composition, it is found to want the terseness and 
directness which might be derived from a strict adherence, at 
all times, to the use of technical terms and phrases, the reason 
for it might be traced to a wish to present the propositions it 
contains in language readily apprehended by the student. 

Regarding the Law of Real Property as a system composed 
of several parts, yet substantially complete in itself, he has 
endeavored to arrange his topics with a due regard to their 
natural order of sequence, in relation to each other. 

The work is divided into three books : the first embracing 
the nature and quantity of estates in corporeal hereditaments, 
with their qualities and characteristics, which will be found 
in the volume now published ; the second treating of incor- 
poreal hereditaments, their nature and characteristics ; and 
the third, presenting in outline the titles by which real 
property may be acquired and held, and the rules of its 
transmission and transfer, will constitute a second volume. 



PllEFACE TO FIRST VOLUME OF FIU.ST EDITION. XV 

It ia 8ul)divitlod into chaijtcrs, each intended to embrace a 
separate and distinet sul)ject, with a Hubdivisiuii in sonic 
cases into sections, with such a reference in the notes to tlie 
American statutes as to give the reader a toleraldy full idea 
of the coincidence or diversity of the rules of tin' soxn-al 
States ujjon those subjects therein treated of. 

It aims, in brief, to provide a safe and convenient bi>ok of 
reference to the lawyer ; while it furnishes an elementary 
treatise for the use of the student, embracing what, in the 
form of lectures, has been received with favor by successive 
classes of the Law School, for which they were originally 
prepared. 

From the encouragement he has received from both lawyers 
and students to undertake the work, he is induced to hope 
that it will be found, in some measure, to supply the want in 
which it originated. 

Cambridge, July, 18G0. 



NOT E. 

For tlic convenience of those who may liave occasion to 
cite or examine the woi'k now offered in a new edition, tlic 
])a,ircs of the lirst edition are retained. 

The figures upon the margin, with a star prefixed, indicate 
the pages of that edition. 

The second volume of the present edition l)egins with 
Estates upon Condition at page 444 of the first volume 
of the first edition. The third l)egins with Titlb-Descknt 
at page 397 of the second volume of the first edition. The 
star pages are retained as a means of referring from one 
part of the work to another, instead of those of the present 
edition. 



CONTENTS. 



BOOK I. 

CORPOREAL HEREDITAMENTS. 



CHAPTER I. 

PAOB 

NATURE AND CLASSIFICATION OF UEAL PROPERTY . 1 



CHAPTER II. 

FEUDAL TENURES, SEISIN, ETC 39 

CIIAFfER III. 

ESTATES IN FEE-SIMPLE 73 

CHAPTER IV. 

ESTATES-TAIL 97 

CHAPTER V. 

ESTATES FUR LIFE. 
SECTION I. 

Their nature and incidents 120 

SECTION II. 
Of estovers 134 



XX CONTENTS. 

SECTION in. 
Of emblements I33 

SECTION IV. 
Of waste 145 

CHAPTER VI. 

ESTATES BY CURTESY 169 

CHAPTER VII. 

DOWER. 

SECTION I. 
Nature and history of dower 191 

SECTION n. 
Of what a widow is dowable 202 

SECTION III. 
Requisites of dower 221 

SECTION IV. 
How lost or barred 251 

SECTION V. 
How and by whom assigned 281 

SECTION VI. 
Nature of the estate in dower 312 

CHAPTER VIII. 

JOINTURE 324 

CHAPTER IX. 

ESTATES BY MARRIAGE. 
SECTION I. 

Estates during coverture ^ 339 

SECTION II. 
Rights of homestead 353 



CONTENTS. XXi 

Division 1. — What arc homestead rights, and who ma}' claim 353 

Division 2. — In what sucli rights may be claimed .... 30.0 

Division 3. — How such rights are ascertained and declared. 383 

Division 4. — How fur such rights answer to estates . . . 398 

Division 5. — How far such rights are exempt from debts . 414 

Division G. — How far such rights may prevent alienation . 428 

Division 7. — How such rights may be waived or lost . . . 446 
Division 8. — Of procedure affecting such rights, and effect 

of change in the condition of the estate . . 457 



CHATTER X. 

ESTATES FOU YEARS. 

SECTION I. 
Nature and history of estates for years 462 

SECTION II. 
How estates for j'cars may be created 476 

SECTION III. 
Of conditions in leases 501 

SECTION IV. 
Of covenants in leases 517 

SECTION V. 
Of assignment and sub-tenancy 538 

SECTION VI. 
Of eviction, destruction, and use of premises . ... . 555 

SECTION VII. 
Of sun'ender, merger, &c 579 

SECTION VIII. 
Lessee estopped to deny lessor's title 588 

SECTION IX. 
Of disclaimer of lessor's title .... 601 



XXll CONTENTS. 

SECTION X. 
Of letting lands upon shares 604 

SECTION XL 
Of descent and devise of terms 611 

CHAPTER XL 

ESTATES AT WILL. 
SECTION I. 

Estates properly at will 612 

SECTION IL 
Estates from year to year 633 

CHAPTER XII. 

TENANCIES AT SUFFERANCE, LICENSES, ETC. 

SECTION I. 
Tenancies at sufferance 648 

SECTION n. 
License 661 

CHAPTER XIIL 

JOINT-ESTATES. 

SECTION I. 
Estates by joint-tenancy , . . 674 

SECTION II. 
Estates in coparcenary , « . . 683 

SECTION m. 
Tenancies in common . 685 



CONTKNTS. Xxiii 

SKmoN IV. 
Estates in partnership 7uO 

RECTK^N V. 
.Toint-tnortgages 7()j 

SECTION VI. 
Estates in entirety 700 

SECTION VII, 
Partition 71 <» 



TABLE OF CASES CITED. 



Abbey Tlomestead Assoc, i'. Willard, i. 

im, Gua. 
Abbot V. Hiivley, iii. 272. 
Abbott f. Abbott, i. 8:3, 400. 437, 438, 
452; iii. 408, 423,42(3,453. 

V. Allen, iii. 485. 487. 

V. Alsdorf, iii. 323. 

I". Berry, i. 714. 

c. Bni'lstroet. ii. 502, 598. 

V. HiitltT, ii. 350. 

V. Cromartie, i. 592. 

V. Cumin, ii. 205. 

I'. Godfroy's Heirs, ii. 60. 

u. Holway, ii. 453, 471, 483; iii. 
385. 

V. Jenkins, ii. 053. 

V. Kasson, ii. 138. 

r. Mills, iii. 80. 

r. Stewartstown, ii. 320. 

r. Ujjton, ii. I'.HJ. 
Abby r. IJilhips. i. 537. 
Abeel v. Hadcliff. ii. 548. 
Abell ('. Brown, ii. 524. 

r. Cross, iii. 2.';5. 
Abercronibie r. Baldwin, i. 090. 

V. Redpatli, i. 551. 

V. Kiddle, i. 131, 309. 
Abcrgaveny's (Lord) case, i. 080. 
Abingdon's case, i. 2'.)0. 
Abington r. North Bridirewater, iii. 465. 
Abney v. l*oi)e, i. 304, 455. 
Abraham v. Twigj^, ii. 437. 772. 774. 
Academy of Music r. Ilackett. i. 513. 
Accidental Death Ins. Co. v. McKensie, 

i. 591, 000. 
Acer r. Westcott, iii. 348. 
Ackerman r. Lyman, i. 05L 
Ackia V. Ackla. ii. 108. 
Ackland r. Lutlev, i. 407, 041 ; ii. 601. 
Ackley v. Chamberlain, i. 307, 368,410. 

V. Dvpert, iii. 84. 
Ackroyd'r. Smith, ii. 300. 
Acland v. Caisford, ii. 2.30. 
Acocks r. Phillips, i. 513. 
Acquacknonk Water Co. v. Watson, ii. 
307. 



Acton r. Blundcll, ii. 374, 375. 

V. Dooley, iii. 01. 
Adair i^. Lott, i. 170. 181. 
Adam v. Ames Iron Co., i. 712, 710. 
V. Brings Iron Co., i. 19, 088, 718; 

ii. 401. 403. 
V. Kerr, iii. 290. 
Adams v. Adams, i. 121, 402; ii. 294, 

502, 538, 050. 
V. Andrews, i. 008. 
v. Beadle, i. 14. 
I'. Beiknian, i. 270. 
V. Bit^elow, ii. 144. 
V. Brown, ii. 184, 233, 245. 
r. Bucklin. ii. 289, 293. 
»•. Butts, i. 317. 
r. Conover, iii. 488, 511. 
V. Corriston, ii. 110, 139. 
V. Cuddy, iii. 340, 435. 
V. Freeman, i. 002. 
V. Frothingham, i. 087, 719 ; iii. 217, 

408. 
V. Frye, iii. 312. 
V. Gibney, i. 521. 
r. (ioddard, i. 580. 
V. Guerard, i. 50; ii. 472, 517,049. 
V. (iuice, iii. 57, 171. 
f. Hill, i. 230, 244; ii. 222. 
!•. Jenkins, i. 374, 437. 
v. Lojian, i. 123; iii. 200. 
c. McKesson, i. 004, 010. 
V. Marshall, ii. 333. 
V. Medsker. iii. 282. 
V. Morse, iii. 472, 473. 
V. Palmer, i. 257, 340; iii. 224, 226, 

228. 
V. Parker, ii. 121. 
V. Payiiter. ii. 205. 
V. Pease, iii. 43"J, 443. 
V. Hiibertson, ii. 148. 
V. Rockwell, iii. 71. 88. 90. 
V. Ross. i. 88; ii 271, 000. 053, 654, 

055; iii. 207. 478. 608. 
r. Saratoga & W. R. R.. iii. 451. 
r. Savagf, ii. 424, 440, 447, 400,660 

004. 
r. Smith, i. 14. 
f. Steer, iii. 404. 



XSVl 



TABLE OF CASES CITED. 



Adams v. Stevens, ii. 46 ; iii. 405. 

V. Von Alstyne, ii. 390, 391. 

V. Walker, ii. 378. 

V. Wlieeler, ii. 157. 
Addison v. Hack, i. 666, 667, 672; ii. 

397. 
Adkins v. Hudson, ii. 472. 
Adrian v. Sliaw, i. 395, 454. 
Adsit V. Adsit, i. 335, 386. 
yEtna Ins. Co. v. Franks, i. 435. 

V. Tyler, ii. 98, 241. 
Agricultural Bank v. Kice, iii. 268, 272, 

'2 I b. 

Agricultural, &c. Ass. v. Brewster, ii. 

.544. 
Ahearn r. Bellman, i. 640. 
Ahrend v. Odiorne, ii. 90. 
Aiken v. Bruen, ii. 215. 

V. Gale, ii. 186, 212, 214, 215, 221, 
222 227. 

V. Smrtli, i. 481, 604, 605, 606. 
Aikin v. Albany R. R., i. 532. 
Aiknian r. Harsell, i. 265, 318. 
Ainswortli v. Ritt, i. 577. 
Ake V. Mason, iii. 434, 493, 507, 524. 
Albany's case, ii. 695. 
Albany Fire Ins. Co. v. Bay, iii. 268, 

271. 
Albany Street, Re, iii. 226. 
Albee r. (Carpenter, i. 107. 
Albion Bank v. Burns, ii. 224, 228. 
Alden v. Carver, ii. 90. 

V. Wilkins, ii. 75. 
Alderman v. Neate, i. 481, 482. 
Alderson v. Miller, i. 594, 600; iii. 101, 
127. 

V. Piatt, i. 655. 
Aldred's case, ii. 327, 365. 
Aldrich v. Billings, iii. 82, 451. 

V. Cooper, ii. 212. 

V. Martin, i. 6»6 ; ii. 08, 225, 229. 

V. Parsons, i. 5. 
Aldridge r. Dunn, ii. 93, 95. 

V. Kibyre, i. 590 ; ii. 143. 
Alexander v. Alexander, ii. 725; iii. 
312. 

V. Bradley, i. 309. 

V. Carew, i. 044; iii. 349. 

V. I)e Kermel, i. 312. 

V. Dorsey, i. 577. 

V. Fisher, i. 149. 

V. Greenwood, ii. 265. 

V. Kennedy, iii. 153. 

V. Kilpatrick, i. 355. 

V. Merry, iii. 222. 

V. Mills, ii. 696. 

I'. Pendleton, iii. 156. 

V. Polk, iii. 14.5, 170,287. 

V. Sclireiber, iii. 520, 522, 524, 525. 

V. State, iii. 77. 

V. Tams, ii. 514. 

V. Warrance, i. 174 ; ii. 289, 508. 

V. Wlieeler, iii. 152. 
Alford V. Vickery, i. 639, 642. 



Alger V. Kennedy, i. 562. 
Allan I". Gomme, ii. 318, 350, 854. 
AUcock V. Moorhouse, i. 508, 5.39. 
Alleghany City ;,'. Moorehead, iii. 61. 
Allegheny v. Ohio & P. R. R. Co., iii. 

202. 
Allen V. Allen, i. 127, 128; ii. 279; iii. 
84, 109. 

V. Ashley School Fund Tr., ii. 748, 
768. 

V. Bates, iii. 458. 

V. Bryan, i. 526, 550, 551. 

V. Bryant, ii. 571. 

V. Carpenter, i. 141, 660. 

V. Carruth, i. 437. 

i;. Chatfield, i. 592. 

V. Clark, ii. 181, 186, 211, 213, 214, 
216 

V. Cook, i. 409, 410, 424. 

V. Culver, ii. 296. 

I'. Everly, ii. 106. 

V. Everts, iii. 240. 

V. Gibson, i. 699. 

r. Hall, i. 689. 

V. Holton, i. 677 ; iii. 141, 461, 508. 

V. Hooper, i. 344; iii. 268, 274. 

i\ Howe, ii 13. 

r. Indett, ii. 566. 

?•. Jackson, ii. 10. 

V. Jaquish, i. 477, 579, 585, 631. 

V. Kellani, iii. 91. 

V. Kingsbury, iii. 484. 

V. Lambden, i. 467. 

V. Little, iii. 545. 

V. McCoy, i. 219. 

V. Maddock, iii. 542. 

V. Mayfield, ii. 594. 

r. Mooney, i. 22, 23. 

V. Parish, iii. 71, 119. 

r. Poole, i. 090. 

V. Pray, i. S3 5. 

V. Savward, iii. 498, 508, 517. 

V. Scott, iii. 412, 413, 421, 465. 

V. Taft, iii. 458. 

V. Tavlor, ii. 365. 

V. Thaver, i. 83. 

V. Trustees, i. 105, 118. 
Allerton v. Belden, ii. 189. 
Alley V. Bay, i. 435. 

V. Lawrence, ii. 709. 
Alley on Beattv's Plan, ii. 348. 
Allis r. Billings, iii. 263. 

V. Moore, ii. 346 ; iii. 178. 
Allison V. Shilling, i. 44.3. 
Allyn r. Mather, ii. 631 
Alms-House Trustees v. Smith, ii. 191. 
Alter's Appeal, iii. 227, 406. 
Altes V. Hinckler, iii. 238. 
Altham v. Anglesea, ii. 459. 
Altham's case. i. 106. 
Aitheimer '•. Davis, i. 384. 
Althorf r. Wolfe, i. 1.57. 
Alton r. Pickering, i. 617, 626. 
Alvord V. Collin, iii. 235. 



TAULK OF CASES CITKD. 



XXVll 



Alvonl Co. V. Olcason, i. 2.1, 27. 
Alwood V. Miinetiflil, i. .OJU. 
r, KiiLkmim, i (M)u, UCKJ. 
AniMer r. Norton, i. ^W. 
Anient r. Wolf, iii. 106. 
Amor. Acnilcmy of A. & S. i'. Harvard 

Collt'gc, iii. 652. 
Anier. Aciidemy of Music i-. Sniitli, ii. 

218. 
Ainer. Bib. Soc. v. Wetmore, iii. 564. 
Amir, (iiiano Co. v. U. S. CJuano Co., 

iii. I'.t4. 
Ames r. Aslilev, ii. 50.3. 

V. Elilred, "i. ;J07, 385. 

r. Norman, i. TOO, 707, 708. 
Amlierst c. Lyiton, ii. 021. 
Amiierst Acailemy r. Cowls, ii. 564. 
Aniidon c. IJenjiimin, iii. ."512. 
Amidown r. I'eck, ii. LtO. 255. 
Ammidown r. B:ill, iii. 421. 

V. Granite Hank, iii. 418, 420. 
Amner v. Loddinnton, ii. 785). 
Amonott r. Amis, iii. 117. 
Amory r. Fairhanks, ii. 252. 

V. Kannoffsky, i 58-S, 584. 

V. Mercditli, ii. 712, 7l;J. 

V. Heilly, ii. 92. 
Ancaster r. Mayer, ii. 207. 
Anders r. Meredith, i. 01*4. 
Anderson v. Amlerson, i. 430; iii. 542. 

I'. Baumgartner, ii. 101, 127. 

V. Buchanan, ii. 349. 

V. Cary, ii. 9. 

i;. Chicago Ins. Co., i. 564. 

V. Coburn, i. 4.50; iii. 80. 

V. Culbert, i. 435. 

V. D.irby, i. 4!M1 ; iii. 165. 

V. l)iiu;as, iii. 340. 

V. Eden, ii. 703. 

V. Greblc, iii. 565. 

V. Hubble, iii. 90. 

V. J.ick^on, ii. 753. 760. 

V. N\ff, ii. 1.54, 150. 

V. ()[)[)enheiiner, i. 677. 

V. Tribble, i. 432. 

V. Weston, iii 298. 
Anding c. Davis, ii. 5.3. 
Andover Bapt. Soc. v. Hazen, ii. 6.39. 
Andrew v. Spurr, iii. 406. 
Andrews, Ex jxtrte, ii. 244. 

t;. Andrews, i. 310, 329, 333 ; iii. 
390. 

V. Appel, iii. 601 

V. Brnmfleld, ii. 7'^4. 

V. Burns, ii. 151. 

v. Davison, iii. 400. .504, 605. 

V. Denison, iii. 501. 

V. Fiske, ii. 75, 160, 170. 

V. Gillespie, ii. 257 ; iii. 407, 504. 

V. Hagadon, i. 879. 

V. Hailes. i. 689. 

v. Lyons, iii 90, 91. 

I'. Royo, ii 690, 707, 757, 760, 786 

V. Senter, ii. 21. 



Andrews r. Scotton, ii. 261, 269. 

V. Sparliawk, ii. 676. 

r. Todil, iii V2.'>. 
Andnis c. folfinaii. ii. 01, 05, 06. 
Angel I-. Boner, ii. 197, 19S. 
Angell, I'elition of, ii. 632. 

r. Handall, i. 660. 

r. Kotteiibury, i. 89; ii. 6.38. 
Angier v. Agnew, i. 149, 16(J, 161; ii 

\us, 116. 
AngUsea r. Cliurcli Wardens, ii. 20. 
Angus r. Dulton, ii. .'WO, 343, ;i»l. 
Ahkeny r. I'ierce, i. 689. 
Annan v. Folsom, iii. 347. 
Annapolis K. K. c Gantt, ii. 107. 
Anonymous, i. 03; ii. 234, 209,289,441; 

iii. 138, :i:{7, 338, 
Ansloy r. Loiigmire, i. 688, 696. 
Anson r. Anson, ii. 201. 
Anthony r. (iiftord, iii. 60. 

V. Lapliam, ii. .']08. 

r. Smith, ii. W. 
Antomarciii <•. Kussell, ii. 388. 
Antoiii r. Bilkiia[), i. 5, 34, 060. 
Apple r. Apple, i. 204. 
Applegate r. Gracy, iii. 270, 1340, 844. 

V. Mason, ii. 196. 
Api)leton V. Boyd, i. 077, 706; ii. 148, 

149. 
Arbuckle v. Ward, ii. 339; iii. 59. 
Arcedocline r. Bowes, ii. 187. 
Archer i-. Bennett, ii. 829 ; iii. 420. 

V. Jones, i. 132. 
Archer's case, ii. 038, 050, 078. 
Arden v. I'nllen, i. 509, .576. 
Ards I'. Watkins, i. 620. 551, .552. 
Arents v. Commonwealth, ii. 127. 
Argyle r. Dwinell, i. 717. 
Arkwright r. tJell, ii. 380. 
Arlin r. Brown, ii. 90. 
Armitage v. Wickliffe. ii. 109, 134. 
Arms V. Ashley, ii. 547. 

V. Burt, i. 88. 

V. Lyman, i. 719. 
Armstrong r. Armstrong, ii. 701, 798. 

V. Brownfield, iii. 427. 

V. Caldwell, ii. 403 ; iii. 150. 

V. Cummings, i. 578. 

r. Darby, iii. 478. 

V. Kerns, ii. 700. 

V. Lawson, iii. 369. 

v. Pratt, ii. 207. 

r. Kisteau. iii. 144, 160, 177. 

r. Wheeler, i. 625. 

r. Wolslev, ii. 466. 
Arnold r. Arnold, i. 204, 700. 

V. Brown, i. 110; ii. 6<I9, 570, 703 

V. Crowder. i. 23, 24, 29. 

r. Den, iii. 10. 

V. Elltnore, iii. 4.36. 

I'. Foot. ii. 225, mS, 371 ; iii. 67. 

V. Gilbert, ii. 707. 

V. Grime'*, iii. 2<V,t. 

V. H. K. U. Road, ii. 86a 



xxvm 



TABLE OF CASES CITED. 



Arnold i'. Mattison, ii. 54. 
V. Nash, i. G17, 620, 660. 
V. Kevoult, i. 489. 
V. Kichiuond Iron Works, iii. 263. 
V. Stevens, ii. 356, 396. 
V. Wainwright, i. 701, 702. 
Arnot V. Post, ii. 134. 
Arnwine v. Carroll, ii. 533. 
Arques v. Wasson, ii. 103. 
Arrington v. Cherry, ii. 572. 
Arrison v. Harmstead, iii. 260. 
Arrowsmitli v. Burlington, i. 70, 71 ; 

iii. 224. 
Arthur v. Bockenham, iii. 574. 
V. Cole, ii. 10. 
V. Weston, iii. 279, 280. 
Arts V. Maydole, i. 379. 
Artz V. Grove, ii. 53. 
Asay V. Hoover, ii. 169. 
Ascough's case, i. 559. 
Ashby V. Eastern R. R., i. 60; iii. 447. 

V. White, ii. 393. 
Ashcroft V. Eastern R. R. Co., iii. 462. 
Asher v. Mitchell, i. 432, 458. 
Ashhurst v. Given, ii. 436, 475, 488, 506, 
564. 
I'. Montour Iron Co., ii. 85. 
Ashhurst's Appeal, ii. 467, 499, 500. 
Ashley v. Ashley, ii. 339, 373; iii. 156, 
176. 
V. Olmstead, i. 385. 
V. Warner, i. 506, 629, 630, 632; 
ii. 27. 
Aslimun v. Williams, i. 5, 673. 
Ashwell V. Avers, iii. 290. 
Askew V. Daniel, iii. 270. 
Askins r. Coe. iii. 90. 
Aspden v, Austin, i. 519. 
Astbury, Ex parte, i. 30. 
Astor V. Hoyt, i. 554; ii. 172. 
V. L'Amoreaux, ii. 577 
V. Miller, i. 529, 531, 534, 554. 
Astrom v. Hammond, iii. 211. 
Atherton v. Johnson, iii. 145. 
Atkin V. Merrell, i. 214. 
Atkins V. Bordraan, ii. 353, 355, 393 ; 
iii. 412. 
y.Chilson, i. 167,516; ii. 23. 
V. Kinnan, iii. 231, 239, 242. 
r. Kron, i. 130. 
V. Sawj^er, ii. 170, 171. 
V. Sleeper, i. 467. 
V. Yeomans, i. 291, 294. 
Atkinson v. Atkinson, i. 394, 408, 440. 
V. Baker, i. 127. 
V. Hutchinson, i. 107- 
Atlanta Mills v. Mason, ii. 315, 399. 
Atlantic Dock Co. v Leavitt, i. 518 ; ii. 

293,299; iii, 288,331. 
Attaquin v. Fish, i. 167. 
Attersol v. Stevens, i. 156. 
Attorney-Gen. v. Boston Wharf Co , 
iii. 459. 
V. Bowyer, iii. 549. 



Attorney-Gen. v. Butler, ii. 564. 

V. Chambers, iii. 64, 65, 446. 

V. Delaware, &c. R. R. Co., iii. 443. 

V. Doughty, ii. 327, 366. 

V. Federal St. Meeting-House, ii. 
537, 538, 539. 

V. Folsom, iii. 53, 54. 

V. Gill, ii. 773. 

V. Hall, ii. 760, 783, 787; iii 565. 

V. Merrimack Mg. Co., ii.25; iii. 79. 

V. Moore, ii. 5G8; iii. 555. 

V. Pearson, ii. 558. 

V. Purmort, ii. 43. 

V. Scott, ii. 498. 

V. Vigor, ii. 145. 

V, Williams, ii. 350. 

V. Wistanley, ii. 258. 

V. Woods, iii. 443 
Attwater v. Attwater, i. 86; ii. 9. 
Attwood V. Fricot, ii. 406. 
Atwater v. Bodfish, ii. 398. 
Atwood V. Atwood, i. 225, 271, 289. 

V. Vincent, ii. 90. 
Aubin V. Daly, i. 219. 
Auburn Bank v. Roberts, ii. 172. 
Auer V. Penn, i. 583. 
Aufricht v. Northrop, ii. 117. 
Augenbaugh v. Coppenheffer, i. 523. 
Augusta V. Moulton, ii. 341. 
Augusta Bank v Earle, ii. 303. 
Augustus V. Seabolt, ii. 562,602,609; 

iii. 6. 
Auriol V. Mills, 1. 524, 535, 536. 
Austen v. Halsay, ii. 96. 
Austin V. Abearne, i. 492. 

V. Austin, ii. 70. 

17. Bailey, iii. 148. 

;;. Barrett, i. 690. 

V. Bradley, ii. 67. 

f. Burbank, ii. 269. 

V. Cambridgeport Parish, ii. 7, 16, 
18; iii. 558, 559. 

V. Downer, ii. 58. 

V. Hall, i. 699. 

V. Hudson River R. R. Co., i. 156, 
472 ; ii. 382. 

V. Rutland, &c. R. R. Co., i. 692, 
715 ; ii. 391 ; iii. 61, 157, 445. 

I'. Sawyer, iii. 416. 
V. Shaw, iii. 279. 

?'. Stanley, i. 357, 377. 

17. Stevens, i. 132, 154. 

V. Swank, i. 387, 450. 

V. Thompson, i. 616. 

V. Underwood, i. 418. 
Auworth V. Johnson, i. 155, 575. 
Avans v. Everett, i. 378. 
Avant y. Robertson, i. 279. 
Avelyn v. Ward, ii. 17, 757. 
Averall v. Wade, ii. 230. 
Averctt v. Ward, ii. 267, 277. 
Averill r. Guthrie, ii. 156. 
i;. Taylor, i. 480; ii. 181. 

V. Wilson, iii. 99. 



TABLE OF CASES CITED. 



X X 1 X 



Avon Mf;;. Co. v. Andrews, iii. 420. 
A>er f. AyiT, ii. 4til, IbtS, WJ. 

V. KiiiLTV, ii. 6. 

V. lliiwks. i. U27. 

I'. SpriiiK', i. 28'.t, .']02. 
AylilTe r. Murray, ii. 601. 
Ayiinj^ /-. Kruiner, ii. 2. 
Aylswortli r. Wlilti-Dnib, ii. 493. 
Ayniiir r. Hill, ii. 128. 
Ayray's case, iii. 27'.'. 2"^0. 
Ayres r. Kulklaiitl, i '.i.j; ii. 802. 

V. Hiistf.l, ii. 2.U. 

V. Waite, ii. 18'J 

V. Wattson, ii. 195. 



B. 



Babl) V. PiTJey, i. 119, ."iiO, .344, 846. 
Babbit V. .Sero{,'|,'in, i. 700, 70U. 
Babcoek r. Bowman, iii. 204. 

V. Gibbs, i. 808. 

V. IIoL'V, i. 41'.», 4;]:j; ii. 112, 115. 

V. Jonlaii, ii. 50,218. 

V. Kennedy, ii. 142. 

V. Scovill, i. 534. 

17. Utter, i. G70 ; iii. 438. 

V. Wynian, ii. .54. 
Baclielder v. Wakefield, i. 000 ; iii. 217. 
Backenstoss c. Stabler, iii. 472. 
Backiiouse r. Bonoini, ii. 382. 
Backus r. Cbapinan, i. G'J3. 

V. Detroit, iii. 443, 445. 

i;. McCoy, iii. 480, 481, 483, 484, 
487, 401. 
Bacon v. Howdoin, i 482 ; ii. 181, 182 ; 
iii. 4i:5, 420. 

V. Brown, i. 0:!(!, 051 ; ii. 51. 

V. Goodnow, ii. loS, 222. 

V. Huntington, ii 22. 

I'. Lincoln, iii 488. 

V. Mclntire, ii. I'Jl, 102. 

V. Sitni)son. iii. 249. 

V. Taylor, ii. 471. 

V. W. Furnace Co , i 512, 514. 
Badge v. Floyd, ii. 773, 780. 
Badger v. Boardnian, ii. 324, .325. 

V. Iloltiies, i. 005. 

V. Lloyd, ii. 773, 780 
Badgley r. Bruce, i 287. 
Badhun r. Tucker, ii. 8, 157. 
Bagley v. Fletcber, iii. 207. 

r. Freeman, i 525, 529, 584, 541, 
554 

V. Morrill, iii 428. 
Bagnell v. Broderick, iii. 199, 205, 208, 

20'J. 
Bagott V. Orr, iii. 60. 
Bagsbaw r Spencer, ii. 401. 
Baier v. Berbericb, ii. 517. 
Bailey v. yEtna Ins. Co., ii. 76. 

V. Appleyard, ii. 313. 

i;. Burges, ii .55 1 

V. Carleton, iii. 162, 164, 160. 



Bailey r. He Crospigny, i. ■'A)l. 

V. Delapiaiiie, i. 5^2. 

r. FilUbruwn, i. 008. 

V. Gould, ii. 123. 

i;. lloppin, ii. 5'J7, Oil. 

r. Kilburn, iii. 98. 

V. .Miitenberger, iii. 507. 

I'. .Moore, i. 5'.t(i. 

r. Myrick, ii. 232. 

i\ IVarson, i. •t'A). 

V. Uicbardson, ii 205. 

I'. .Si.sson, i. 712. 

V. Stepbens, i. (i02. 

V. Wells, i. 535, 579, 680. 

V. Wliite, iii. 428, 4.59. 
Baily v. U. K. Co.. iii. 44;J. 

i\ Smitb, ii. 2'>7. 
Bain r. Clark, i. 505. 
Haiiibridge r. Owen, ii 234. 
Maine r. Williams, ii. 229. 
Bainton i-. Wanl, ii. 089. 
Hainway r. Cobb, i. 29. 
Haird /■. Boucber, ii. 71.3. 

V. B. II. Col., ii. 43. 

V. Corwin, i. 715. 

I-. Trice, i. 420. 
Baker r. Adams, i. 040, Oil. 

1-. Baker, i. 01, 28.3,288,317. 

V. Bessey, iii. 421. 

r. Bliss, iii. 3.30. 

V. Bridge, i. 91 ; iii. 503. 

V. Cbase. i. 220. 227 ; ii. 542. 

V. Dening, iii. 280. 

V. Dewey, iii. 401. 

V. Falea, iii. 217. 

r. Flood, ii. 203. 

V. (Javitt, ii. 109, 130,133, ITS 

V. Oostling, i. 551. 

V. Hall, ii. 407, 479. 

r. Haskell, iii. 308, 310, 315. 

r. Hunt, iii. 479. 

r. .Jord.'iii. iii. 410. 

r. Matcber, iii. 348. 

V. .Mattocks, i. 40, 116. 

V. Pratt, i. 581. 583. 

i\ Scott, ii. 055. 

/•. Talbott, iii. 4.34. 

V. Terrell, ii. 227. 

r. Tbrasber. ii. 03. 

r. Townsend, iii. 1.30. 

V. Vining. ii. 509, 613. 

V. Wind. ii. 47. 
Balcb r. Onion, ii. 18.3. 
Baldwin v. Allison, ii. 276, 623. 

V. Brown, iii. 94. 

V. .lenkins. ii. .'>8. 

V. Maultsby. iii. 311. 

I'. Porter, ii. 552. 

I'. .Spriggs. iii. 576. 

r. Tiiompson. ii. 227. 

r. Tuttie. iii. 350. 

r. Walker, i. 527. 540. 548 ; ii. 142. 

r. Wliiting. i. 088. 
Balfour v. Ballour, i. 696. 



XXX 



TABLE OP CASES CITED. 



Balkum v. Wood, i. 429. 
Ball V. Cuilimore, i. 616, 617. 

V. Deas, i. 678. 

V Duiisterville, iii. 297. 

V. Lively, i. 5b9. 

f. Wyeth, i. 538, 567 ; ii. 50, 195. 
Ballance v. Forsyth, iii. 236. 
Ballard (•. Ballard, ii. 599. 

V. Ballardvale Co., ii. 173. 

V. Butler, i. 570. 

V. Carter, ii. 145; iii. 543. 

V. Dyson, ii. 350. 
Ballentine v. Poyner, i. 149, 150. 
Ballentine's Estate, i. 350. 
Ballou V. Taylor, ii. 191, 193. 
Balls V. Westwoot], i. 580, 593. 
Bally V. Wells, ii. 300; iii. 502. 
Ralston V. Bensted, ii. 377. 
Baltimore v Warren Mfg. Co., ii. 367. 

V. White, iii. 347, 502. 
Baltimore &, Pot. K. R. Co. v. Reany, 

ii. 381. 
Bamfield v. Popham. ii. 772. 
Bancroft v. Cambridge, i. 70. 

V. Coolidge, i. 2. 

V. Ives, iii. 19, 577. 

V. Wardwell, i. 627. 

V. White, i. 248. 
Banfield c. Wiggins, ii. 533. 
Bangs r. Smith, ii. 713. 
Banister v. Henderson, i. 62 ; iii. 514. 
Bank of America v. Banks, iii. 125. 
Bank of Angusta v. Earle, ii. 303. 
Bank of Commerce v. Owens, i. 216. 
Bank of England v. Tarleton, ii. 128, 

130. 
Bank of Metropolis v. Guttschlick, ii. 

195. 
Bank of Pennsylvania v. Wise, i. 11, 

548, 549. 
Bank of So. Carolina v. Campbell, ii. 
224. 

V. Mitchell, ii. 230. 

V. Rose, ii. 195. 
Bank of State of Indiana v. Anderson, 

ii. 112. 121, 123, 154. 
Bank of U. S. v. Carroll, ii. 263. 

V. Covert, ii. 128, 129. 

V. Dunseth, i. 292. 

V. Housman, ii. 445 ; iii. 401. 
Bank of Washington r. Hupp, ii. 143. 
Bank of Westminster v. Whyte, ii. 45, 

Banks v. Am. Tract Soc, ii. 365. 

V. Haskie, i. 461. 

V. Ogden, iii. 61, 66, 452. 

V. Sloat, ii. 488, 500, 706. 

V. Sutton, i. 211, 234; ii. 630. 
Banner v. Johnston, ii. 226. 
Banning v. Bradford, ii. 268. 

;;. Edes, iii. 299, 
Bannister v. Bull, ii. 654. 
Bannon v. Angier, ii. 350, 396. 
Banton v. Sborey, iii. 369. 



Baptist Assoc, v. Hart, iii. 549, 550, 554 
Barber v. Babel, i. 400. 

V. Barber, iii. 464. 

V. Harris, i. 707, 708; iii. 115. 

V. Hoot, i. 346. 
Barbour v. Barbour, i. 201, 245. 
Bardwell v. Ames, iii. 412, 415. 
Bare v. Hoffman, ii. 394. 
Barford v. Street, iii. 568. 
Barger v. Miller, iii. 294, 295. 
Baring v. Keeder, i. 41. 
Bark v. Bark, iii. 509. 
Barker v. Barker, i. 180, 186, 276 ; ii. 
524. 

V. Bell, ii. 105, 109, 170, 194; iii. 78. 

V. Blake, i. 289, 290. 

V. Danier, i. 526. 

r. Dayton, i. 456. 

V. Greenwood, ii. 502, 538. 

r. Keat, ii. 441, 456. 

V. Parker, i. 240; ii. 121. 

V. Richardson, ii. 346. 

V. Salmon, iii. 72, 174. 

V. Wood, ii. 188. 
Barkley v. Wilcox, ii. 372. 
Barksdale v. Elam, ii. 11. 

V. Garrett, i. 277. 
Barkshire v. Grubb, ii. 330, 332. 
Barlow v. McKinlej', iii. 493. 

V. Salter, ii. 768. 

V. St. Nicholas Bk., iii. 492. 

V. Wainwright, i. 636, 639, 643, 647. 
Barnard v. Edwards, i. 277, 313. 

V. Jennison, ii. 239. 

V. Jewett, ii. 516, 518. 

V. Onderdonk, ii. 251. 

V. Poor, i. 157. 

V. Pope, i. 689, 690, 715. 
Barnes v. Allen, ii. 779. 

v. Barnes, i. 663, 673. 

V. Burt, iii. 471. 

V. Cm mack, ii. 200. 

V. Gay, i. 214, 217, 234, 419. 

V. Irwin, ii. 706. 

V. Lee, ii. 134, 146. 

V. Mawson, ii. 401. 

V. McKay, iii. 89. 

V. Racster, ii. 216, 231. 

V. Ward, i. 573. 

V. White, i. 379, 412. 
Barnet v. Doughert}-, ii. 516. 
Barnett v. Nelson, ii. 61, 235. 
Barnett's Appeal, ii. 4tJ9, 572, 574. 
Barney v. Arnold, ii. 763, 765. 

V. Baltimore, iii. 445. 

V. Frowner, i. 291, 301. 

V. Keith, iii. 126. 

V. Leeds, i. 357, 363, 393, 409, 459. 

V. McCarty, ii. 153; iii. 335, 343. 

V. Miller, iii. 425. 

V. Myers, ii. 216. 
Barnfield v. Wetton, ii. 767. 
Barnhart v. Campbell, i. 688, 689. 
Barns v. Hatch, iii. 311. 



TAIJLK OP' CASES CITKD. 



XXXl 



Barnstiible r. Thaclicr. ii. 318 ; iii. 138. 
Hiirtiiim I', t'liilds, iii. 401. 
Burr r. (iiillowav, i. 1^2. 

V. Gnitz, i. "0:5 ; iii. 138, 142, 147, 
loo, H;4, ;!2H. 

i: Kiimnl, ii. i:>5. 
Barrel! r. Biirnll. ii. 770. 799. 

I'. .Joy, ii. 5-J7, i^l'J, 676. 

V. Sal)ine, ii. 02. 
Barrett r. Barron, iii. 32o. 

.-. Fr.ncli, ii. 4'.1, 471, 472 ; iii. 895. 

r. Miirpliy, iii. J.jli. 

V. I'ortcr, iii. 623. 

V. Knife, i. r>\:i 

V. Wilson, i. 4:53. 
Barroilhet i'. Battelle, i. 515, 5:J0, 541, 

553. 
Barron v. Barron, ii. 513, 550. 
Barrow r. lliclianl, ii. 14. 2y8, 317, 320. 
Barrows c. Holian, ii. 511, 512. 
Barruso v. Madan, ii. 7. 
Barry v. Adams, iii. 350. 

r. (Jainblo, iii. 205. 
Bartholonu'w r. Candee, iii. 479, 483, 
4S7. 

r. Ell wards, iii. 164, 420. 

V. Hamilton, i. 20. 

V. Hook, i. 410. 
Bartlct r. Harlow, i. 088. 

V. Kinj;, ii. 5()1. 
Bartlett v. Bartlctt, ii. 49, 600, 507, 545; 
iii. 272. 

V. Drake, i. 487 ; iii. 297, 353. 

V. Kmerson, iii. 450. 

V. Farrinj^ton. i. 523, 628. 

V. Ciou^e, i. 213. 

V. I'erkins, ii. 805. 

I'. Piekersgill, ii. 619. 
Barto c. Ilimrod, iii. 224. 
Barton r. Dawes, iii. 426. 

r. Morris, iii. 270. 
Barwifk's case, ii. 582. 
Bascom r. Albertson, iii. 553, 555, 556, 
557. 

V. Smith, ii. 197. 
Basford '•. Pearson, iii. 125, 253, 255, 

400. 488. 
Baskin's A])pc'al, i. 454. 
Bass r. Kdwards, ii. 320, 849. 

V. Mitclu'U, iii. 423. 

c. Scott, ii. 4!»8. 
Basse v. (Jallej^ger, ii. 67, 08. 
Bassett r. Bassett, iii. 256, 400. 

V. Bradley, ii. 219. 

V. Brown, i. 487 ; iii. 276. 

V. Mason, ii. 202. 

I'. Messner, i. 379, 412, 401. 
Bastanl's case, i. 270. 
Batchelder v. Hatciielder, i. 031. 

i". Dean, i. 4t)9, 471. 

V. Kenniston, iii. 64, 459. 

V. Uohinson, ii. 105, 252. 

1'. Sturnis, iii. 529. 
Bateoiaa v. Bateman, i. 246. 



Bates V. Bates, i. 205, 405, 451. 

1-. Boston & N. Y. Central R. U., 
iii. 289, 2!>0. 

r. Foster, iii. WXt, 617. 

V. .Miller, ii. 201. 

V. Norcross, i. 260 ; iii. 100, 338, 
49H. 612. 613. 

V. liud.lick. ii. 216. 

V. Seely, i. 710. 

r. Slira-der, i. 159. 

I'. Tymason, iii. l.'M. 
Batesville Inst. r. Kaufl'man, ii. 125. 
Bath V. Miller, ii. 164. 
Batte r. McCaa, iii. 273. 
Battel r. Smith, i. 087. 
Matiey r. Hopkins, ii. 075. 
Battle r. I'etway, ii. 572. 
Batty r. Snook, ii. 68, 05. 
Baugan r. .Maim, iii. 79. 
Bantrh r. Walker, ii. 509. 
Baugher v. Merrvman. ii. 5.3. 
Baiim r. C.rifishy, ii. 91, 92. 96, 97. 
Bauni'^artner r. (juessfeld, ii. 612. 
Baxter r. Arnold, iii. 400. 

V. Bodkin, iii. 125. 201. 

V. Bradbury, i. 484; iii. 18, 119, 121, 
512, 527. 

V. Browne, i. 480. 

I', (^hild, ii. 05. 

1-. Dear, i. 400; ii. 47. 

V. Dyer. ii. 108. 

V. Mclntire. ii. 194. 

c. Willey, ii. 54. 
Bay City Gas Light v. Industrial 

Works, iii. 459. 
Bayer v. Cockerill, ii. 479; iii. 381. 
Bayler i-. Commonwealtii, ii. 44 ; iiL 

370. 
Bayles i*. Ba.xter, ii. 514, 618. 

I'. Greenleaf, ii. (»3. 

r. Younj;, iii. ■'540. 
Bayless r. (ilenn. ii. 258. 
Bayley v. Bailey, ii. 47, 65. 

r. Bradley, i. 095. 
Baylor /•. St. Ant. Bank, i. 355. 
Bayly i-. Lawrence, i. 559. 

V. Muche, ii. 200. 
Baynton v. Finnall, i. 349. 
Beach r. Beach, ii. 573. 

r. Farish, i. 5^><>. 5(>0. 

V. llollister, i. 710. . 

V. .Miller, iii. 493. 

V. Packard, iii 401. 

V. White, iii. 357. 
Beahan r. Stapleton, iii. 431. 
Beal r. Blair, ii. 83. 

V. Boston Car Sprinp Co., i. 651. 

V. Warren, iii. 208, .355, 358. 
Bealey v Shaw, ii. 335. 370. 
Beall V. Berkhalicr. iii. 525. 

V. Fox, iii. 55;1, .'>.'>!. 
Beals r. Case, ii •"•27. 

V. Cobb, ii. 4'.l. 207. 
Beaman v. Buck, iii. 249. 



XXXll 



TABLE OF CASES CITED. 



Beaman v. Russell, iii. 259. 

1-. Whitney, iii. 280, 333. 
Bean v. Bachelder, iii. 153, 460. 

V. Bootliby, ii. 204. 

V. Coleman, ii. 354 ; iii. 473. 

V. Whitcomb, ii. 275. 
Bear v. Snyder, i. 270, 289. 
Bearce !•. Jackson, iii. 482. 
Beard v. Fitzgerald, ii. 212. 

V. Knox, i. 196. 

V. Nutthall, i. 331. 

V. Stanton, ii. 535. 

V. Westcott, ii. 724, 761. 
Beardman v. Wilson, i. 505, 539, 541, 

543. 
Beardslee v. Beardslee, i. 204, 205, 267. 
Beardsley v. Foot, iii. 90. 

V. Hotchkiss, ii. 711, 714. 

V. Knight, i. 721. 
Beasley v. Clarke, ii. 342. 
Beatie v. Butler, ii. 73, 76, 81. 
Beatty v. Bordwell, i. 698. 

V. Gregory, i. 669. 

V. Mason, iii. 235. 
Beatty's Plan, Alley on, ii. 346. 
Beaty v. Hudson, iii. 455. 
Beaudely v. Brook, ii. 450; iii. 362. 
Beaupland v. McKeen, iii. 84, 89, 93, 

101, 527. 
Beavan v. McDonnell, i. 485. 
Beavers v. Smith, i. 292, 299, 301, 302, 

311. 
Beavin v. Gove, ii. 254. 
Bechtel v. Carslake, iii. 518. 
Beck V. Carter, i. 573. 

V. Gray bill, ii. 509. 

V. McGillis, ii. 146. 

V. Metz, iii. 20. 
Becker v. De Forest, i. 565. 

V. St. Ciiarles, iii. 519. 

V. Van Valkenburgh, iii. 178. 

V. Werner, i. 504. 
Beckerkord, In re, i. 366, 376, 392. 
Beckett v. Howe, iii. 5.39. 
Beckman i'. Kreamer, ii. 390. 
Beckwith v. Howard, i. 518. 
Beckwith's case, ii. 455, 456, 457. 
Beddoe v. Wadsworth, iii. 481, 483. 
Bedell's case, ii. 438, 451, 483; iii. 

376. 
Bedford v. British Museum, ii. 326. 

i;. Kelly, i. 593. 

V. M'Elherron, i. 603, 636. 

V. Terhune, i. 529, 539, 540, 544, 
547, 581, 583, 585, 623. 
Bedford's (Le Countee) case, ii. 458, 

460. 
Beebe v. Swartwout, iii. 500, 511. 
Beecher v. Baldy, i. 362, 374, .391, 421, 
422, 438. 

V. Parmele, i. 656. 
Beekman v. Bonsor, iii. 554, 555, 557. 

r. Frost, iii. 339. 

V. Saratoga, &c. R. R., ii. 304. 



Beer v. Beer, i. 491. 
Beers v. Beers, i. 156. 

V. St. John, i. 154. 
Beevor v. Luck, ii. 215. 
Belcher u. Burnett, ii. 611. 

V. Costello, ii. 125. 

>: Weaver, iii. 334. 
Belden v. Carter, iii. 306, 307. 

V. Meeker, ii. 119. 

V. Seymour, ii. 464, 465; iii. 398, 504, 
526. 
Belding v. Manly, ii. 116, 122. 
Belfour v. Weston, i. 508, 569, 585. 
Belk V. Massey, iii 335, 340. 
Belknap v. Gleason, ii. 193. 

V. Tnmble, i. 718; ii. 343, 378. 
Bell r. Ellis, i. 624, 628. 

V. Fleming, ii. 154, 157, 158, 160, 
162. 

V. Ingestre, iii. 311. 

t'. Longworth, iii. 147, 350. 

V. McCawley, iii. 342. 

V. McDuffie, iii. 385. 

V. Nealy, i. 254. 

V. New York, i. 131, 262, 293, 308; 
ii. 181, 182, 222, 223, 23-5, 246, 
266. 

r. Scammon, ii. 445, 466, 763, 764, 
766; iii. 396, 398, 564. 

V. Thomas, ii. 152. 

V. Twilight, 1. 126; ii. 81 ; iii. 360. 

V. Woodward, ii. 204, 227; iii. 409, 
410. 
Bell County v. Alexander, i. 91 ; iii. 

5.53. 
Bellairs v. Bellairs, ii. 10. 
Bellamy v Bellamy, ii. 523. 
Bellasis v. Burbriche, i 475, 493. 
Beller v. Robinson, i. 471. 
Bellinger v. Union Burial Ground Soc, 

iii. 109, 518. 
Belloc V. Rogers, ii. 113. 266. 
Bellows V. Boston, C, & M. R. R. Co., ii. 
105, 140. 

V. Copp. iii. 203. 
Bells V. Gillespie, ii. 753, 772. 
Belmont v. Coman, ii. 217, 218; iii. 
522. 

V. O'Brien, ii. 191. 
Belslay v. Engel, ii. 653. 
Belton V. Avery, ii. 58. 
Bemis v. DriscoU, i. 389. 

V. Leonard, i. 467. 

V. Wilder, i. 504, 506, 516. 
Benaugh r. Turrentine, i. 277. 
Bender v. Fromberger, iii. 486, 487. 

V. Stewart, i. 690. 
Benedict v. Benedict, i. 666. 

V. Bunnell, i. 357, 368, 431. 

V. Morse, i. 649. 
Benesch v. Clark, ii. 713, 721. 
Benham v. Rowe, ii. 78, 79, 80, 234. 
Benjamin v. Heeny, i. 521. 
Benje v. Creagh, iii. 145. 



TABLE OP CASES CITED. 



xxxm 



Benncr r. EvnnR, i. 205. 
BcMinL'soii r. Aiki'ii, iii. 300, 612. 
Beiiiiet r. Hitilc, i. MO, 60-i. 

f. Hiilloik. i. G!».;; iii. 158. 

V. Davis, i. 177 ; ii. 601. 

r. \VeHtl)eci<, iii. ;{62. 

i;. Williiiins, iii. 362. 
Bennett r. IhUvt*. ii. 140. 

V. Unx.ksi, iii. 6:18. 

r. C'linip, ii. 6()(J. 

V. Ciiild, i. 707, 710. 

V. C'lemence. i. 001. 092 ; iii. 163. 

V. Conant, ii. 264, 281 ; iii. 100. 

V. DiiviH, i. 173. 

V. Holt, ii tl;!. 

I'. Irwin, iii. 404. 

r. Koltiiison, i. OtiO. 

«'. StevunsDii, ii. 08. 
Bennock v. Wiiipple, i. 020 ; ii 67. 
Benaeil «. Ciiiiii(elli>r, i. 486. 
Bensiey v. Atwill, iii. ;}i:5. 
Benson r. Aitkin, i. 400, 431. 

V. IJollesi, i. 630. 

i;. Matsilorf, ii. 600. 

I". Miners' Bank, ii. 401. 
Benson's Ace, lie, i. :i:iS. 
Bent r. Ik-nt, ii. 600, 607. 

V. Kopers, iii. 422. 
Bentiiani v. Smith, ii. 707. 
Bentley i'. Long, ii. 608. 

I'. Sill, i. 603. 

v. Vanderlieyilen, ii. 196. 
Benton v. Ilorsley, iii. 427. 

r. Jones, ii. 63. 

V. Wood, ii. 275. 
Benzein v. liobinett, ii. 107. 
Benlan c. St-iljiwick, ii. 183, 184. 
Berg I'. Siiiplfv, iii. 336, 340. 
Bergen i'. Bennett, ii. 06, 72, 555, 601, 

710. 710. 
Berger r. Duff, ii. 566, 507, 718. 
Bergman r. Roberts, i. 603, •'.()(». 
Berkshire M. F. Ins. Co. i-. Sturgis, iii. 

300,311. 
Berlin v. Burns, i. 426, 448. 
Berly i'. Taylor, ii. 647. 
Bernal v. Hovious, i. 005. 
Bernard v. Jennison, ii. 55. 
Bernays r. Keild, ii. 07. 
Bernstein v. Iliinn's, iii. 361. 
Berridge >•■ Wanl, iii. 449. 
Berrien c. McLane, ii. 557. 
Berry i-. Anderson, iii. 303, 305, 311, 
320 322 

V. Billings, iii. 384, 390, 466, 468. 

t>. Dcrwart, ii. 134. 

V. Heard, i 100. 

V. Mutual Ins Co., ii. 87. 

V. Uaddin, iii. 210. 

V. STiyder, iii. 441. 

v. Williamson, ii. 5^31. 
Berryhill r. Kirchncr, ii. 109. 
Berrynian r. Kelly, iii. 106. 
Bertie v. Abingdon, i. 113. 
VOL. I. — c 



I Herfie r. Kalklaml, ii. 10, 11. 
Hortlis r. .\unan, i. 7M'.i, 71U. 
Bertram r. ("<jok, i. 603. 

V. CurtiH, iii. 494. 
Besley v. Lawrence, ii. 225. 
Bessell r. LancUberg, i. 043. 
Besson c. Kveland, li. 610, 511. 
Best r. Allen, i. 4:;2, 447. 

V. Gholaon, i. 418, 432. 
Bethlehem .-. Annis, ii. 09, 70, 125. 
Betsey c Torrance, iii. 351, 362. 
Bettison v. IJudd. i. 680. 
Belts i: .June, i. 492. 
Betz c. Brvan, iii. 4f*l. 

V. Defbert, i. 014, 047. 

i;. lleebner, ii. 127. 
Bevans r. Briscoe, i. 142. 
Beverley v. Beverley, ii. 440. 
Beverly r. Burke, iii. 162. 
Bibl) i' Keid, iii. 318. 

r. Smith, ii. 610. 
Bibby r. Carter, ii. 381. 
Bickell's Ai>pcal, ii. 616, 516. 
Bickford r. Daniels, ii. 68. 

I'. Page, iii. 487, 603. 
Bicknell v. Bicknell, ii. 89. 

»'. Coinstock, iii. 144. 
Biddle v. Ilussman, i. 668. 

V. Heetl, i. 609. 
Biery i'. Zeigler, i. 511. 
Bigelow c. liush, ii. 205. 

V. Cassedy, ii. 181. 

V. Collamore, i. 6.36, 537, 574. 

r. Foss, iii. 90, 02. 

r. Hubbard, iii. 401. 

I'. .Jones, i. 83, 091. 

V. Littlefield, i. 714. 

V. Kising, i. 7(M). 

V. Topliti; ii. 46 ; iii. 85, .338. 

r. Willson. ii. 100, 181. 
Bilbey >•. I'oston, i. 441. 
Mill V. Curetoii, ii. 492. 
Billings r. Clinton, ii. 611, 512. 

I'. Taylor, i. 161, 218, 297. 

V. Sprague, ii. 224. 
Billingslcv r. Nil>lett, i. 422. 
Billingtoii r. Welsh, iii. 86, 337, 338 
Bilson r. Manuf. Ins. Co., ii. 243. 
Bingham >•. Barley, iii. 204. 

r. Wciderwa.x, iii. 620, 529. 
Ringliam'.s .\ppeal, ii. 707. 
Binghanipton Bridge, ii. 308, 309. 
Hinnerman r. Weaver, ii. 10. 
Bmnev <•. Chapman, i. 592. 

r.'Hnll, ii. .S90, 309. 
Birch r. Linton, iii 200. 

V. Wright, ii. 176, 177. 
Bircher v. Parker, i. 33. 
Birckhead v. Cummiiigs, i. 473, 046 
Bird c. Baker, i. 470. 

V. Christopher, ii. 694. 

V. Gardner, i. .304. 

I'. Harris, iii. 602. 

V. Wilkinson, ii. 54. 



XXXIV 



TABLE OF CASES CITED. 



Binlsall v. Phillips, i. 642. 

Eirge v. Gardiner, i. 57^:5. 

Birlett's Estate, ii. 499. 

Birmingham r. Anderson, iii. 459. 

Birnie v. Main, ii. 193. 

Bisbee v. Hall, i. 497. 

Bishop !•. Bedford Charity, i. 570. 

V. Bishop, i. 18. 

V. Doty, i. 607. 

V. Elliott, i. 22. 

V. Ploward, i. 636. 

V. Hubbard, i. 385. 

V. Schneider, ii. 158 ; iii. 343. 
Bisland v. Hewett, i. 262, 286 ; ii. 93. 
Bissell r. Grant, ii. 354, 586. 

V. N. Y. Cent. K. H., iii. 449, 451. 

V. Strong, iii. 394. 
Bissett V. Bissett, iii. 334. 
Bittenger v. Baker, i. 142, 145. 
Bivins v. Vinzant, iii. 499. 
Bixler v. Savior, iii. 517. 
Black V. Bla'ck, i, 701. 

r. Cm-ran, i. 402, 419. 

V. Hills, iii. 267. 

V. Lamb, iii. 304, 311. 

V. Lindsay, i. 691. 

V. McAuley, ii. 763. 

V. Morse, ii. 212. 

V. Rockmore, i. 426. 

V. Shreve, iii. 311,312, 318, 321, 323. 

V. Woodrow, iii. 251. 
Blackburn v. Gregson, ii. 90, 94. 

V. Warwick, ii. 65, 67, 246. 
Blackmon v. Biackmon, i. 333. 
Blackmore v. Boardman, i. 469, 531. 
Blackstone Bank v. Davis, i. 85; ii. 9. 
Blat'kwell >•. Overli}', ii. 54. 
Blackwood V. Jones, iii. 85, 89, 93. 
Blades v. Higgs, i. 17, 655; iii. 3. 
Blagge V. Miles, ii. 712. 721 ; iii. 229. 
Blain v. Harrison, i. 287, 314. 

v. Stewart, iii. 341, .344. 
Blaine i-. Chambers, iii. 312, 418. 
Blair, Appellant, ii. 148. 

V. Bass, ii. 123. 

V. Claxton, i. 5'i4. 

V. Rankin, i. 535. 

V. Smith, iii. 94, 96, 99, 156, 177. 

V. St. Louis, Harr., &c. R. R. Co., 
iii. 321. 

V. Taylor, iii. 494. 

V. Thompson, i. 231. 

V. Waite, iii. 90. 

r. Ward, ii. 1.35, 154, 210, 221, 230. 
Blaisddl 1-. Hieht, iii. 544. , 

V. Portsmouth, G. F., & C. R. R. 
Co., i. 661, 662, 663. 
Blake v. Clark, iii. 412, 421. 

V. Coats, i. 606. 

V. Fash, iii. 317, 325. 

V. Foster, i. 485. 

r. Hawkins, ii. 712. 713, 714. 

V. Natter, i. 701, 703. 

V. Sanborn, ii. 268. 



Blake r. Sanderson, i. 555. 

V. Tucker, iii. 116, 120. 

V. Williams, ii. 127. 
Blakeley v. Calder, i. 716. 
Blakeniore v. Byrnside, ii. 52, 
Blakeney v. Ferguson, i. 2.34. 
Blaker v. Anscombe, ii. 501. 
Blanchard l: Baker, ii. 368. 

V. Benton, ii. 109. 

V. Blanchard, ii. 27, 588, 592, 598, 
627, 629, 779; iii. 565. 

V. Blood, i. 341. 

V. Bridges, ii. 363, 308. 

V. Brooks, ii. 600, 627; iii. 105, 122, 
478, 508, 565. 

V. Colburn, ii. 145. 

r. Ellis, iii. 117, 119, 121, 527, 530. 

V. Porter, iii. 439. 

V. Tyler, i. 592; iii. 304,344. 
Bland v. Lipscombe, ii. 313, 392. 
Blandy v. Asher, i. 453. 
Blaney v. Bcarce, ii. 57, 105, 169. 

V. Hanks, iii. 326. 

V. Rice, iii. 433, 435, 436. 
Blankard v. Galdy, i. 40. 
Bhintin v. Whitaker, i. 593. 
Blatchford v. Woolley, ii. 689. 
Bledsoe v. Doe, ii. 211 ; iii. 242. 

V. Little, iii. 210. 
Bleeker v. Smith, i. 503, 514, 515. 
Blessing v. House, iii. 74. 
Blethen v. Dwinall, ii. 189, 191. 
Blewett V. Tregonning, ii. 313, 392. 
Bligh 1-. Brent, i. 19. 
Blight V. Banks, ii. 98, 94, 95; iii. 240. 

V. Rochester, i. 588, 591, 598 ; iii. 98, 
99, 174. 

V. Schenck, iii. 322. 
Blin p. Pierce, ii. 532. 
Bhss V. Am. Bible Soc, iii. 549. 

V. Ball, iii. 166. 

V. Greeley, ii. 876. 

V. Kennedy, iii. 412. 

V. Rice, ii. 393. 

V. Whitney, i. 32. 
Blitheman v. Blitheman, ii. 452. 
Blivins r. Johnson, i. 380. 
Bloch V. Pfaff, iii. 169, 433, 4.34. 
Block V. Bragg, i. 383. 

V. Isham, ii. 298. 
Blockley v. Fowler, ii. 78. 
Blodgett V. Hildreth, i. 679, 716 ; ii. 513, 
514,519,545; iii. 509. 

V. Stone, ii. 393. 

V. Wadhams, ii. 134. 
Blodwcll r. Edwards, ii. 629. 
Blondeau r. Sheridan, iii. 488, 496. 
Blood V. Blood, i. 205, 226, 283 ; ii. 152, 
469; iii. 339. 

r. Wood, iii. 162, 163, 164. 
Bloodgood V. Mohawk & H. R. R , 

ii. 304; iii. 22-5. 
Bloom V. Noggle, ii. 151. 

V. Van Rensselaer, ii. 71, 80, 85. 



TAIiLK OF CASES CITKD. 



X \ \ V 



Bloomer v. WaMron, ii. !Joo, 701, 708. 
Blossom r. Hrij;litmiui, i. 08H ; iii. :i77. 
niouiit r. Iliirvi-v. ii. I.".t8, .MX). 
Blue r. Hliu', i. ;i7(), JIM; ii. IKO. 
Blue Jiicket c. Joliiison Co. Cummrs., 

iii. iy8. 
Blum r. Kvnns, ii. 771. 

V. KohiTtsnn, i. 013. 
BlumenlMTK r. Myers, i. M5. 
Hlunieiitlial r. lilooinint^dalc, i. (>46. 
Blunt r. (Jie, i. 2S7. 

V. Norris, ii. 125. 
Blyer r. MoniiolintKl. ii. '220, 225. 
Blvmiro r. Boistic, ii. 210. 
BIytii r. D.niH'tt. i. ')0(1, ({:}fl. 
Hivtiii' r. I)arj,'aiii, iii. 202. 
Bo'anl r. MoanI, iii. 1 U». 
Board iif I-M. of Normal St-lionl v. Trus- 
tees of First llaj). Cliiircli, ii. 4. 
Boardman r. Dean. iii. 300,311,304,401. 

V. Osborn, i. r)')."), 6-^7. 

'•. Uecd. iii. 204, 20.",, 200, 42.3. 4')5. 
Boilwell r. \Vel)sier, ii. 47, .iii, '>:], ')~. 
Bo^jardii.s v. Trinity Clmrcli, i. 81,001 ; 

iii. 2H;J. 
Bo^gess V. Meredith, i. OrtO. 
Boggs V. Anderson, iii. ;!38. 

I'. Merced Mining Co., iii. 88, 200, 
210, 418. 
Bogie V. Uiitledge, i. 2-30. 
Bogy r. Shoal), iii. 11.5, 117, 381. 
Bohanaii v. Pope, ii. 210. 
Bolianiion c. Streshley, ii. .535. 
Bolianon r. Walcot, iii. 578. 
Bohlen's Kstate, ii. 500. 
Bohon r. Bohon, iii. 508. 
B ling V. I'.wing, iii. 'Ml. 
Bolivar Mg. Co. i'. Ncponsct Mg. Co., 

ii. 303 ; iii. 58. 
Bolles r. Dtiff. ii. 240. 
Bollinger v. Choteau, ii. 180, 2-30, 240. 
Bolster i'. Cushman, i. 248. 
Bolton r. Ballard, i. 2:V.) ; ii. 201. 

V. Bolton, ii :]■][). 

V. Brewster, ii. II 1. 

I'. Carlisle, iii. 200. 

V. Landers, i. GOl, 632. 

V. I.ann, iii. 4:J1. 

V. Tondin, i. 04G. 
Bomar r. Mullins, i. 34.3. 
Bonihaiigh v. Miller, ii. .306. 
Bond r. Bond, iii. 2()G. 207. 

V. Coke, iii. 410, 471. 

V. Fay, iii. 423. 420, 430. 

V. Rosling, i. 4S3. 

i". Strickland, i. 432. 

V. Swearingen, iii. 20, 110. 
Bonham r. Galloway, ii. 100. 
Bonithon r. Ilockmore, ii. 244. 
Bonnell v. Smith, i. 403. 
Bonner, Petitioner, i. 713. 

r. Kenneheck Purchase, i. 715. 

I-. Peterson, i. 216. 2S.">. 
Bonney v. Foss, i. 0, 7, 8, 164, 592,652 



Bonney r. Morrill, iii. 458. 

V. Smith, ii. 73. 
Bonomi c BackliouMe, ii. .382. 
Boody «•. DaviH, ii. 4.'.; iii. 3(IK. 311 
Booker r. Anderrton. i. 433, 4 Ix n 1"^3 

i». Gregory, ii. 245. 

V. Stivender. iii. .3"J5. 
Bool r. Mi.x, i. 43'). 4MH ; iii. liOl. 
Boon r. Murphy, ii. 05. 
Boone >•■ Boone, i. 3."i7. 

r. Cliiles, li. 520. 5:i5, 560; iii. 343 

r. Moore, iii. 27. •. 
Boos r. Gimilx-r, i. 3.>2. 
Booth r. Adams, i. 002. 

r. Alcock, i. 400. 

r. Booth, ii. 258. 

r. Clark, ii 207, 

V. Gait, i. 358. 

i>. Lambert, i. 283. 

I'. Small, iii 114. 

V. Starr, iii. .501.504, 505. 

r. Terrell, ii. 5S'). 
Bootliliy r. VtTiion, i. 180 
Boothrovd r. Kngles. iii. 270, 286. 
Bopp r. Fox. i. 210, 704. 
Boraston's case, ii. .507, 028. 
Borden r. Viment, ii. .317. 
Bordley v. Clayton, i. 24»'i. 
Bordman r. Osliorn. i. 555. 557. 
Borci'l r. Lawtoii, i. .501, 5'i3. 
Borel r. Hollins, iii. 1<>1. 
Borland /•. Marshall, i. 182. 

f. Nichols, i. .335. 

I'. Walrath. iii. 317. 
Borron r. Solliliellos. i. 301. 
Borst c. Empi". iii. 404. 
Boskowitz '•. Davis, i. O'H); ii. 646. 
Bossard v. White, iii. ;'.^>0. 
Bostick V. Blades, ii. 10. 

V. Keizor, ii. .5.30. 
Boston )• Binney, i. 500, 020. 

V. Kicli.irdson, iii 147, 103, 414, 
417, J48, 452, 453. 

r. pohhins, ii. 5t)<). 

V. \Vorthington, iii. .504. 
Boston Bank >: Chamherlin, iii. 261. 

r. Reed, ii. 17-3. 
Boston, C, & M H. R. i-. Gilmore, ii. 

164. 
Boston Iron Co. v. King, ii. 233, 210. 
Boston & Lowell R. R. v. Salem & L. 

R. R., ii. 308. 
Boston & \y. R. R. I'. Haven, ii. 239, 
240, 245. 
V. Ripley, i. 02-5. 
Boston Water P. Co. r. Boston, ii. 321 ; 
iii. 400. 
r. Boston & W. R. R., ii 308, 309, 
312, 31.3, .302. 
Bostwick V. Atkins, iii. 206. 
I'. Leach, iii. 306. 
V. McF.vov, iii. 320. 
r. Williams, iii. 401. .500, 51 L 
Bnsw.ll . Carlisle, ii. 170. 



XXXVl 



TABLE OF CASES CITED. 



Boswell V. Goodwin, ii. 150, 160, 161, 

162, 195. 
Boswortli 1-. Danzien, iii. 433. 

V. Sturtevant, iii. 427. 
Botham v. Molntier, ii. 165, 272. 
Botsford V. Burr, ii. 459, 513, 517, 518, 
519. 

V. Morehouse, iii. 326. 
Bott V. Burnell, iii. 24-3. 

V. Perley, iii. 223, 241. 
Bolting V. Martin, i. 637. 
Bottorf 1-. Conner, ii. 93. 
Bouknight ;•. Epting, ii. 467, 475. 
Bouldin r. Reynolds, iii. 276. 
Bourland r. Kipp, ii. 127. 
Bourn i'. Gibbs, ii. 788. 
Bourne ?-. Bourne, ii. 168. 
Bours V. Zachariah, iii. 270. 
Bowden i: Lewis, ii. 366. 
Bowditcli r. Banuelos, ii. 557. 
Bowen r. Bowen, ii. 17, 19. 

V. Conner, iii. 463. 

V. Cooper, iii. 130. 

V. Guild, iii. 150. 

V. Kurtz, ii. 220, 278. 

V. Lewis, ii. 763. 

V. Team, ii. 339. 
Bower r Cooper, ii. 540. 

V. Hill, ii. 393. 
Bowers i\ Bowers, iii. .369. 

V. Keesecker, i. 215. 

V. Oyster, ii. 88. 

V. Porter, ii. 617. 
Bowie V. Berry, i. 214, .300, 301 ; ii. 

504. 
Bowlby V. Thunder, ii. 550. 
Bowles's (Lewis) case, i. 160, 161, 

206. 
Bowling V. Cook, ii. 121. 
Bowman ?•. Foot, i. -506. 

V. Lobe, ii. 452, 590. 

V. Manter, ii. 196, 198. 

V. Middleton, iii. 22-5. 

V. New Orleans, ii. 378. 

V. Norton, i. 358, 399, 400, 430. 

V. Smiley, i. 396, 425. 
Bowne v. Deacon, ii. 380. 

V. Potter, i. 249. 
Bowser v. Bowser, i. .597. 
Box V. Stanford, iii. 249. 
Bnxford Rel. Soc. v. Harriman, ii. 

564. 
Boxheimer v. Gunn, ii. 195. 
Boyce v. Coster, i. 701. 

V. Kalbaugh, iii. 79. 

V. Owens, iii. 272. 
Boyd V. lieck, ii. 176, 101, 195, 196. 

V. Blankmnn, ii. 522. 

V. Carlton, i. .301. 

V. Cudderback, i. 432, 433, 431 ; ii. 
243. 

V. ElHs, ii. 278. 

V. Graves, iii. 97. 

V. Harris, ii, 191. 



Boyd V. Longworth, iii. 222. 

V. McLean, ii. 420, 459, 512, 518, 
519. 

V. Parker, ii. 225. 

V. Slayback, iii. 312. 
Boydell r. W.-ilthall, ii. 437. 
Boyer v. Libliev, ii. 510. 

V. Smith, i.' 596. 
Boyers v. Elliott, i. 701. 

V. Newbanks, i. 283, 285. 
Boykin v. Rain, i. 191. 
Boyle V. Boyle, ii. 253. 

V. Edwards, iii. 504. 

V. Peabody, i. 469. 

V. Shulman, i. 446. 

V. Tamlyn, ii. 390. 
Boylston v. Carver, iii. 458. 
Boynton v. Champlin, ii. 94, 95. 

V. Oilman, ii. 372. 

V. Hodgdon, iii. 147. 

V. Hoyt, ii. 534, 558. 

V. McNeal, i. 427. 

V. Peterborough, iii. 7. 

V. Rees, iii. 346, 391. 

r. Sawyer, i. 2.30. 
Bozon i\ Williams, ii. 87. 
Brabroke v. Inskip, ii. 530. 
Brace v. Yale, ii. 372; iii. 412, 419. 
Bracebridge v. Buckley, ii. 28. 
Brackett, Petitioner, iii. 164, 167, 168. 

V. Baum, i. 262. 

V. Goddard, i. 14 ; iii. 416. 

V. Norcross, i. 690. 

V. Ridlon, iii. 346. 

V. Waite, i. 345. 
Bradbury r. Grinsell, ii. 346. 

V. Wright, ii. 286. 
Bradford v. Cressey, iii. 438, 452. 

V. Foley, ii. 622. 

v. Monks, ii. 718. 

V. Randall, iii. 287, 288, 289. 

V. Russell, iii. 530. 
Bradish v. Gibbs, ii. 690, 706. 

V. Schenck, i. 601. 607. 
Bradiee v. Christ's Hospital, ii. 386. 
Bradley v. Chester Valley R. R., ii. 72, 
73, 83, 84, 85, 249, 259. 

V. Fuller, ii. 105, 169, 175. 

V. George, ii. 211, 215. 

V. Holdsworth, i. 19. 

V. Peixoto, i. 85; ii. 9. 

V. Rice, iii. 443, 444, 445. 

V. Snyder, ii. 181, 183, 239, 266. 

i". Wilson, iii. 4.33. 
Bradner v. Faulkner, i. 11. 
Bradshaw v. Callaghan, i. 315, 715, 
710. 

V. Hurst, i. 4-50. 
Bradstreet i'. Clark, i. 512 ; ii. 8, 20. 

V. Huntington, i. 63; iii. 139, 149, 
152, 155, 172. 
Brady v. Peiper, i. 580, 582. 

V. Waldron, ii. 11-3, 115, 141, 176. 
Bragg V. Massie, ii. 52. 



TAULK OF CASKS CITKD. 



XXXVll 



Brninanl >•. Roston & N. Y. Central 
U. U., iii. 4:iit. 450, 61». 

I'. Colcliesier, i. "JOJ. 

c. Cooper, ii. iHl. •^4!1, 205. 
Braim-ril c. IVok, ii. lOI. 
Hniintrt'i' r. HiitlU's, i (J'J3. 
Hrai<fly r. Sliarp, ii. :5-2^, :J2.t, :]:il. :34'.>. 
Branian v. Hinnliam, iii oOl, '.i\6, H'M. 

V. Dowse, ii. "JIT, 'J18. 

V. Stiles, ii. 4(il, tV.Kt. 
Bramble v. Beiiller. iii. 510. 
Bramlet r. Bates, ii. 7ti'2. 
Brancii r. iJoaiie, ii. o47. 
Bramloii r. l{<jl)iiison, ii. !', 53.'1, 5.34. 
Brandt v. Foster, iii. 477, 47H, 484, 485, 
4H'J. Ml, 520, 528, 5:^1. 

r. Oji.len, iii. 150, ](«, 43;J. 
Bran^er r. .Manciet, i. 521. 
Bianliain r. San Jose, iii. 74, 404. 

V. Turnpike Co., iii. 440. 
Brannan /•. Oliver, ii. 570. 
Brant v. Uobertson, ii. 51. 
Brantlev r. West, ii. 52. 

I-. Wolf, iii. 2f,4. 
Branton r. liriffits, i. 11. 
Bratt r. Bratt, i. 477. 
Brattle Scj. C'hunli c. Grant, i. 04 ; ii. 
2.'), 2(5, 28, 21), 4i)l, 501, 032, 074, 083, 
740, 757, 70 ), 701, 7'Jl. 
Bratton r. Clawson, i. 27. 
Brawner c. Stauji, ii. 510, 535. 
Bra.xton r. (."ukMiian, i. 300. 
Brayl)roke c. ln.skip, ii. 145. 
Braybrooke r. Attorney(ienera!, ii. 711. 
Brazee v. Lanca.^ter Bank. ii. 150. 
Breani r. Dickerson, i. 53."{. 
Breckenriiitie v. Aiild, ii. 58. 

r. Brooks, ii. 133, 244, 24.5. 

r. Urnisbv, ii. 105, 10;J ; iii. 142, 
203, 204. 
Brce r. Ilolbeck, ii. 120. 
Breed r. Kastern H. U. Co., ii. 172. 

V. Pratt, iii. .547. 
Breeding c. Taylor, i. 540. 
Breit r. Yeaton, ii. 700, 707. 
Brenckm.'in r. r\vi))ill, i. 583. 
Brennan r. Wliitaker. ii. 103. 
Brent's case, ii. 431, (i02. 
Bressler r. Kent, iii. 201, 208. 
Brett V. Cumberland, i. 480, 527. 
Brettan r. Fox, i. 4(Mj. 
Brewer c. Boston & Wor. K. K., iii. 88, 
04, O.-j. 

V. Connell, i. 227. 2^36 ; ii. 542. 

I'. Conover. i. 027. 

r. Dyer, i. 540, 580, 582. 

V. Hardy, ii. 444, 451, 402, 400,471 ; 
iii. 3'.t5, :\'.n>. 

V. Knapp, i. 030. 

I'. MeCiowen, i. 511. 

r. Marsball, ii. 208, 32-3. 

V. Maurer, ii. 218. 

r. Tborp, i. 4*58. 

V. Vanarsdale, i. 305, 311. 



Brewer r. Wall. i. 411, 442,443. 
Brewster r. Hill, i 407. 

r. Kid^'ell. ii. 300. 

V. Kiteliell. ii. 20. 

r. Kileliin, ii. 205. 

r. McCall, iii. .'".00. 

r. I'owrr. ii. 578. 

r. Striker, ii. 705. 
Brewton r. Watson, ii. 481. 
Briee r. Smith, i. 100. 
Brick r. {u•t.•iin^'er, ii. 141. 
Brickett r. SpolTord, iii. 140. 
Bridge c l',j.'^,di.hton. iii. 354. 

r. llublianl, ii. 183. 

V. WelliiiKion, iii. 300. 
Bridjien r. Carliartt. ii. l.VJ, 188. 
Bridf^er r. I'ier.-uii, iii. 4(52, 471, 47.3. 
Bridjies r. I'urcell. i. 001, 004. t,(50. 
Briditewater r. Holton. i. 75, 88, 00. 
Brid','ford c liiddtl, iii. 357. 
Bridgliam i: Tiliston, i. 510. 
Brig^rs i: Davis, ii. 400. 

I'. Fish. ii. 45. 

r. Hall, i 504. 

V. Hill. ii. 07. 

V. Oxford. Karl of, ii. 73. 
Brigham r. Eveletli, i. 096. 

r. Totter, ii. 50 

r. Shattuck, ii. 10; iii. 658. 

V. Smith, ii. 320; iii. 411. 

r. Winchester, i. 237 ; ii. 37, 124, 
110; iii. 543, 574. 
Bright /■. Boyd, i. 8. 

r. Walki?r, ii. S'M, 3JJG. 330, 342, 
34.;, 340. 
Brightman r. Brighfman, ii. 740. 
Brimmer r. Long Wharl I'rop'rs, iii. 

138, l.jO, 150. 1(5.5. 
BrinekerholT r. F.verett, i. 448. 

V. Lansing, ii. 105; iii. 85. 
Rringloe v. (Joodson, ii. 6W, 007, 608. 
Brinkerhoff r. Marvin, ii. 150. 100. 
Brinkman r. .lones. ii 40, 110. 
Brinley r. Mann, iii. 204, 200. 

I". Whiting, iii. o-'iO. 
Brisbane c. Stoughlon, ii. 73, 84. 
Briscoe r. Bronangh, ii. 02. 

r. King, ii. 51. 

V. Mc( .ec, i (580, 008. 

r. Power, ii. 180, 200. 21.3, 217. 
Brislain r. Wilson, ii. (555. 
Bristol r. Atwater, ii. 777. 

V. {^irroll County, iii. 02. 
Bristow r. Warde, ii. 724. 720. 
Brittin c. Handy, i. (570. 721. 
Britlon r. Twining, i. 107. 
Bni.idbcnt v. Humsbotham, ii. 371, .375, 

:;7(S. 378. 

Broadway Bank r. Adams, ii. 0, 533, 

534. 
Brobst V. Brock, ii. 100. 115. 179. 
Brock r. Berry, i (5.'i7. (■•'•O. 
r. Kastman, i. (5<.H». 715. 
Brocket r. Foscuc, iii. SW. 



XXXVIU 



TABLE OF CASES CITED. 



Broiiie ;•. Stepliens, ii. 584. 
Bronifield v. Crowder, ii. 629. 
Bronson i-. Coffin, ii. 296, 298, 299,300, 
390 ; iii. 493. 

V. Paynter, iii. 384. 
Broiiston i-. Robinson, ii. 171. 
Brook V. Biggs, i. 000. 

V. Brook, i. 224. 
Brookings v. Wliite, ii. 49. 
Brookline v. Mackintosh, ii. 346, 369. 
Brooklyn v. Smilii, iii. 446. 
Brookover r. Ilurst, ii. 105. 
Brooks V. Barrett, iii. 547. 

V. Brooks, iii. 468. 

V. Bruyn, iii. 167. 

V. Cliaplin, iii. 346. 

V. Dalrvmple, iii. 356. 

V. Everett, i. 204, 213. 

V. Fowle, ii. 514. 

V. Galster, i. 32. 

V. Hyde, i. 367, 430. 

V. Jones, i. 89. 

V. Lester, ii. 157. 

V. Ruff, ii. 196. 
Broome r. IBeers, ii. 269. 
Brossart v. Corlet, ii. 353. 
Brothers v. Brothers, ii. 570. 

V. Porter, ii. 540. 
Brougliton v. Langley, ii. 461, 497. 

V. Randall, i. 207, 229. 
Brouncker v. Bagot, ii. 789. 
Brouwer v. Jones, ii. 317. 
Brown, Re, ii. 597, 599. 

V. Armistead, ii. 717. 

V. Bailey, i. 088. 

V. Banner Oil Co., iii. 345. 

V. Barkham, ii. GS. 

V. Bartee, ii. 84. 

V. Bates, i. 699, 705 ; ii. 130, 145, 
148. 

V. Blvdenburgli, ii. 126. 

V. Bowen, iii. 80, 83, 84, 91. 

V. Bragg, i. 465, 509, 511, 6.35. 

V. Bricfges, i. 160, 621 ; iii. 173. 

V. Bronson, i. 227. 

V. Brown, i. 376, 716 ; ii. 547 ; iii. 
578. 

V. Cavuga R. R. Co., i. 573. 

V. Ciiadbourne, iii. 438, 439, 443. 

V. Clark, iii. 575. 

V. Clements, iii. 211. 

V. Cockerell, iii. 70, 145, 17-3. 

V. Combs, ii. 176,547, 566; iii. 280. 
V. Concord, iii. 557. 

V. Coon, i. 432, 433, 434, 449; iii. 
78, 12-5. 

V. Cowell, ii. 570. 

V. Cram, ii. 116. 

V. Dean, ii. 04. 

V. Dewey, ii. 40, 62. 

V. Doe, ii. 573. 

r. Driggers, i. 431. 

r. Duncan, i. .301. 

V. Dwelley, ii. 511. 



Brown v. Dysinger, i. 589; ii. 510. 
V. Krost, ii. 250. 
V. Gibbs, ii. 101. 
V. Higgs, iii. 570. 
V. llogle, i. 679, 690. 
V. Holyoke, ii. 46. 
V. Huger, iii. 431. 
V. Jackson, iii. 106, 381, 508, 510. 
V. Jaquette, i. 605. 
i: Johnson, ii. 188. 
V. Keller, i. 370, 599, 602, 631, 632, 
V. Kelsey, iii. 570. 
V. King, i. 63 ; iii. 156, 174. 
V. Kite, i. 547. 
V. Lamphear, iii. 405. 
V. Lapham, i. 231, 243, 304 ; ii. 201, 

204, 222. 
V. Lawrence, ii. 585, 587, 595, 609 ; 

iii. 18. 
V. Leach, ii. 116. 
V. Lincoln, i. 605, 607. 
I'. Lynch, ii. 517. 
V. McCormick, iii. 119. 
V. McCune, iii. 78. 
V. McKee, ii. 297. 
V. ]\IcMullen, i. 713. 
V. Meredith, i. 313, 315. 
t;. Metz, iii. 501, 503. 
V. Nevitt, ii. 263. 
V. Newbold, i. 638. 
V. N. Y. C. R. R., i. 481. 
V. Nichols, iii. 419. 
V. Kickle, ii. 58, 63. 
V. Parsons, i. 469. 
V. Pentz, ii. 386. 
V. Powell, i. 547. 
V. Quilter, i. 568. 
V. Renshaw, ii. 473, 531. 
V. Reynolds, iii. 317. 
V. Robins, i. 19 ; ii. 382. 
V. Saltonstall, iii. 424. 
V. Simons, ii. 125, 135, 189, 210, 

215, 221. 
V. Snell, ii. 110, 139, 173. 
i\ Staples, iii. 506. 
V. Stewart, ii. 107, 108. 
V. Throckmorton, iii. 212. 
V. Thurston, i. 616 ; iii. 416. 
V. Tomlinson, iii. 520, 524. 
V. Turner, i. 718. 
V. Tyler, ii. 43, 259. 
V. Vanlier, ii.91, 93. 
V. Veazie, iii. 242. 
V. Weast, ii. 524. 
V. Wellington, i. 695. 
V. Wenham, i. 68. 
V. Willey, iii. 428 
V. Williams, i. 267. 
V. Windsor, ii. 383. 
V. Wood, i. 64, 689 ; iii 563. 
V. Worcester Bank, ii. 181, 215. 
V. Wright, ii. 54. 
Browne v. Kennedy, iii. 436, 443. 
V. Lewis, iii. 617. 



TABLE OF CASKS CITKD. 



.\ X x 1 \ 



Rrownc'll r. Browiiell, i. 715. 
Hrowninn c. llariic, i. tlS. 

c. Wrinlit, iii. JJl. 
Brownsoii r. Hull, i. :{».;, 700. 

f. Sciinlaii, iii. 167. 
Ilrowiiswoitl '•. Iviwiirtis, ii. 751. 
Bruce c. MDiincy, ii. I'Jl*. 

I'. Fulton liiink, i. all). 

V. Luko, iii. IDfi. 110. 

V. IVrry, iii. 'Si'2. 

V. Wood, i. IbU, ^44, 70b ; iii. 107, 
27-2. 
nru.k-mll i: Klwes, ii. 030, 0,jl, 7J4. 
Hru(liii-ll r. Hoberts, i. 5'.t4. 
Hrumlii'lil r. I'aliiiiT, ii. 'J7. 
lirumiiiel i'. .Miicplierson, i. 503. 
Uruiuiane r. .Misaioiiary Society, ii 205. 
Bruiulreil v. Walker, ii". "JtiO ; iii. 120 
Brunswick Suv. Inst. v. Crussuian, iii. 

458. 
Brunton v. Hall, ii. 337, 351. 
Brush r. Kinslev, ii. 07. 

V. Ware. iii'. 210, 212. 347. 
Bryan r. Atw.uer. nl 147. 

V. Hatirlieiler, i. 254. 

1-. Braiil.y, i. 02 ; ii. 403, 400, 471 ; 
iii. 327, 300. 

r. Butfs. ii. 111. 

V. Cowart, ii. 52, 57. 

I'. Duncan, ii 571. 

V. Hyre. iii. 580. 

r. Uaniirez. iii. 334. 

V. Uland, iii. 104. 

V. Wash, iii. 315. 

V. Weenis, ii. 53(5. 

V. Whistler, ii. 316. 
Bryant /•. Damon, ii. 125, 128, 216,217. 

V. Krskine. ii. 13, GO, 70. 

i;. Hemiricks, ii. 518. 

i;. Lefever, ii. 300. 

r. IVnnell, ii. 103. 

i;. Unssell, ii. 547, 564. 
Brvar's App., ii. 205. 
Brydfies v. Brydges, ii. 548, 559, 600, 

501, 502. 
Brvson r. Cainphell, i. 201. 
Bul.ier v. Roberts, i. 328, 329, 334, 336, 

3J4. 
Buccleuch v. Metropolitan R. R., ii. 301. 
Buchan r. Sunnier, i. 701, 704. 
Buchanan '°. lla/z.ird, iii. 202. 

v. Hubbard, iii. 207. 

V. Lojiansport. i. 0(i'.). 

17. Monroe, ii. 167, 205. 

r. Moore, iii. 455. 
Buchanan's Appeal, iii. 5()5. 
Buchannan r. SlietTer. i. 175. 
Buck r. Conlonue. i. 410. 

V. Lantz. ii. 507. 040. 

V. Memphis R. R., ii. 164 

V. Tavne. ii. 100. 

r. ri.-kwell, iii. 300, 369. 

V. I'ike, i. 674. 

V. Sanders, ii. 145. 



Buck I'. Sherinnn, ii. 170. 

r. S\vn/ey, ii. 613, 621. 
Bu('kin),'hani c NuUon, i. 422. 
Buckin^'liamsliire r. Drurv, i. 325, 327, 

3:^8. .331. 
Buckle V. Mitchell, iii. 358. 
Buckley v. Buckley, i. 24, 27, 701 ; iii. 
18. 

V. Daley, ii. 100. 
Bucklin r. Bucklin, ii. 62. 
Buikner c Street, iii. 508. 
Buckout r. Swift, i. 8, 145; ii. 113. 
Buckworth v. Sim|)son, i. 53'J. 

V. Thirkell, i. OH, 175, 178, 180, 273, 
275; ii. 075, 740. 
Budd f. Brooke, iii. 300. 
Buell r. ("ook, i. 4S1. 

r. Soutliwick, ii. 771. 
Buffalo &. N. V. R. R. Co. i-. Bruiuard, 

iii. 224, 225. 
Buffuni ('. Buffum, i. 703. 

i;. Green, iii. 300, 310, 304. 
Buist V. Dawes, ii. 587. 
Buikcley v. Chapman, ii. 122. 
Bulkier r. Dolbiare, i. 100. 
Bull f."Bull, iii. 571. 

c. Church, i. 335. 

r. Con roe, i. 401. 

V. Griswold, i. 11. 

r. Kingston, ii. 78;3, 787; iii. 668. 

V. Rowe, i. 425. 

V. Sykes, ii. 43. 
Bullard v. Bowers, i. 230, 231, 239. 

V. Briggs, iii. 300. 

V. Harrison, ii. 340, 355. 
BuUen v. Runnels, ii. 343, 308. 
Bullis V. Noble, iii. 90. 
Bullitt V. Taylor, iii. 300, 356, 357. 
Bullock r. Bennett, ii. 757. 

r. Dommitt, i. 507. 

I'. Finch, i. 284. 

V. Waterman, ii. 657. 

r. Wilson, iii. 20(!, 430, 442. 
Bulwer r. Bulwer, i. 142. 
Bump V. Saurer, ii. '•'t'-M. 
Bumpus V. Platner, ii. 52(). 559 ; iii. 360. 
Bunce v. Bidwell, iii. 152. 

r. Reed, ii. 81. 
Bunch r. Bunch, i. 34G. 
Bunker r. Locke, i. 381. 
linnn r. Winthrop, iii. 368. 
Burbank v. Day, i. 288. 

V. I'illsbury, ii. 293, 296, 299 ; iiL 
404. 

V. Whitney, ii. 781, 783 ; iii. 552. 
Burch V. Carter, iii. 348. 
Burchard r. Fraser, ii. 185. 

r. Hnbbar.l. iii. 120. 
Rurd r. Dansdale, i. IHO. 
Burden r. Thayer, i. 508,648, 649; il 

142. 300, 806. 
Burdett /•. Clay, ii. 123. 127. 157. 

r. .Spilshnry, ii. 708. 
Burdick c. Burdick, iii. 351. 



xl 



TABLE OP CASES CITED. 



Burdick v. Cheadle, i. 576. 

!;. Heivly, iii. U4. 

V. Kent, i. '660. 
Buren v. Buren, ii. 507. 
Burge V. Smith, i. 256, 260. 
Burger v. Potter, ii. 95, 98. 
Burgess v. Burgess, iii. 538. 

V. Gray, iii. 171. 

V. Wheate, ii. 98, 413, 414, 416, 426, 
529, 581, 587, 542. 
Burhans v. Burlians, i. 717. 

V. Hutclieson, ii. 113, 119, 121, 127, 
154, 258. 
Burk V. Brown, iii. 275. 

V. Gleason, i. 454. 

V. Hollis, i. 6, 32, 34. 
Burke i: Adams, iii. 812. 

V. Barron, i. 197, 200. 

V. Gray, ii. 95. 

V. Gummey, ii 218. 

V. Miller, ii. 130. 

V. Niles, iii. 444. 
Burklialter v. Ector, iii. 344. 
Burleigh ;-•. Clougli, ii. 781. 

V. White, ii. 511, 512, 513, 514, 518. 
Burling r. Head, i. 655. 
Burlingame i-. Kobbins, ii. 93. 
Burlington University v. Barrett, iii. 

537. 
Burnap v. Cook, i. 435. 
Burnell v. Maloncy, iii. 152, 172, 173. 

V. Martin, ii. 258. 
Burnes v. McCubbin, i. 511. 
Burnet v. Denniston, ii. 81, 156, 181, 

202. 
Burnett v. Burnett, ii. 467, 475, 498. 

V. Caldwell, i. 626. 

V. Lynch, i. 518, 526; iii. 332. 

V. McCluey, iii. 288. 

?;. Pratt, i. 705; ii. 134, 148, 149, 
268. 

V. Thompson, i. 498 ; iii. 434. 

V. Walker, i. 405. 
Burnham v. Ciiandler, iii. 339. 

V. Roberts, i. 556. 
Burnley r. Stevenson, iii. 250. 
Burns r. Bryant, i. 640. 

V. Cooper, i. 549, 607. 

V. Keas, i. 404. 

V. Lvnde, i. 260, 263, 421 ; iii. 137, 
'253, 255, 297, 304. 

V. McGraw, iii. 124. 

V. Thayer, i. 378. 
Burnside v. Merrick, i. 209, 703, 704. 

V. Terry, i. 23, 25. 

V. Twichell, ii. 140. 163. 

V. Weightman, i. 142. 
Burr V. Beers, ii. 217, 218, 220. 

V. Smith, iii. 552, 554. 

V. Spencer, ii. 106. 

V. Stenton, i. 484, .''>65 ; ii. 261. 
Burrage v. Briggs, i. 112. 



Burrell v. Burrell, iii. 172. 
Burrill i: Sheil, ii. 552, 555, 568. 
Burris v. Page, i. 203. 
Burrows v. Gallup, ii. 391 ; iii. 140. 
Burt c. Boston, i. 571. 

V. Herron, ii. 550. 

v. Hurlburt, i. 340. 

V. Merchants' Ins. Co., iii. 225. 

V. Ricker, ii. 147. 
Burton i\ Barclay, i. 579. 

V. Baxter, ii.'l26. 

V. Hintrager, ii. 112, 123, 147. 

V. Lies, ii. 250. 

V. Murphy, i. 691. 

V. Reeds, iii. 119, 526, 532. 

V. Scherpf, i. 608. 

V. Wheeler, ii. 224. 
Burtz V. Robinson, i. 356, 458. 
Busby V. Rhodes, ii. 765. 
Bush V. Bradley, i. 182. 

V. Bush, i. 225, 276 ; ii. 569. 

V. Cooper, ii. 195. 

V. Marshall, iii. 115, 119. 

i^. Peru Bridge Co., ii. 304, 310. 
Bush's Appeal, ii. 499, 532, 540. 
Bushnell v. Salisbury Ore Bed Props., 

ii. 363 ; iii. 415. 
Buskin v. Edmunds, i. 550, 552. 
Buskirk v. Strickland, ii. 381. 
Buss V. Dyer, ii. 328, 333. 
Busse, Estate of, i. 358. 
Bussey v. Page, ii. 140, 141. 
Bussman v. Gauster, i. 481, 492, 568, 

578. 
Bustard i'. Coulter, iii. 468. 
Butcher v. Butcher, i. 652, 654, 655. 
Butler ;•. p:iliott, ii. 281. 

V. Gale, iii. 492. 

V. Godlej-, ii. 560. 

V. Hill, iii. 864. 

V. Ladue, ii. 71, 80, 271. 

V. Little, iii. 565. 

V. Page, ii. 105, 163. 

V. Porter, i. 721. 

r. Roys, i. 689 ; iii. 277. 

?•. Seward, ii. 227 ; iii. 118. 
Butler & Baker's case, iii. 308, 316, 321, 

.324, 328, 329. 
Butt V. Napier, ii. .360. 

V. Riffe, iii. 493. 
Butterfield v. Baker, i. 608. 

V. Beall, i. 188, 190; iii. 250, 296, 
297. 
Buttrick v. Wentworth, ii. 75. 
Butts V. Broughton, ii. 234. 

V. Francis, iii. 243. 
Buxton v. Dearborn, i. 377. 
Buzby's Appeal, ii. 592. 
Buzick V. Buzick, i. 227. 
Byani v. Bickford, i. 690. 
Hyrane v. Rogers, i. 512, 513. 
Byrne v. Beeson, i. 592. 



TABLK OF CASES CITKD. 



zU 



Cabuen v. Mulligiin, i. 4k^ 14'J. 

CiibiJt c. Cliri.stii-, iii. ij2u. 

Oiibmiiio r. Liiulcll, iii. lill. 

Ca.lell «•. I'almtT, i. 110, 469; ii, OftJ, 

710. 7(><). 
Ciiily c. Slic|)iier(l, i. 618. 
<'.ij;j;iT r. Lansiiifj, iii. 261, 322. 
Caliil /•. I'aliner, iii. 144. 
C.iliii r. \Vriylit,i.41U. 
Caliiion c. LalTaii, ii. 181. 
Lam c. Cliica^'i), &c. K. K. Co., i. 404. 

t'. Ct).\, ii. 624, 525. 

I'. Maqiiire, iii. 870. 
Ciiines r. Grant, ii. 621. 
(.^aiiis V. Joiios, ii. 484. 
CuiriiB I'. C'liabcTt, i. 132. 

V. Collmrii, ii. 607. 
Colder r. .M.naii, ii. 644, 640. 
L'aliiorwooil c. I'yser, i. 6'J6. 
Caltlwi'll V. ('enter, iii. 468. 

f. ("opeiaiid, ii. 4()l, 403. 

V. Fulton, i. \'J; ii. 4(ll, 402, 403; 
iii. 142, :)27, 406, 417, 430. 

r. Harris, i. 6'Jl. 

r. Kirk|)atrick, iii. 478, 601. 

I'. Tag^^art, ii. 2til. 
Callioun f. Cook, iii. 114. 

V. Curtis, i. G!»6, 0!»G. 

i;. McLindon, i. 36'.). 

V. W'illiani.-i, i. 306. 
Calk c. J^tribliMK, iii. 432, 437. 
Calkins r. Calkins, ii. 101, I'JO. 

v. Steinbauli, i. <')',t7. 
Call 1-. Harker, i. 716,710. 
Callaulian v. Ilawkes, i. 617. 
Callaway c. llearn. iii. '.VJU. 
Callender i\ -Marsli, ii. '•if<\. 
Calloway v. Doe tl. Joyes, iii. 109. 
Caltlirop's case, ii. 420. 
Calvert >: Aldricli, i. 097; ii. 380. 

V. Bradlev, i. 663. 
Calvo r Davies, ii. 220. 
Canibridjie c. Le.xinjjton, i. 222. 
Cambridge Valley Bank i-. Delano, iii. 

348. 
Camden & Atl. Land Co. r. Lipjiiiicott, 

iii. 66, 60. 
Cameron »•. Irwin, ii. 81, 134. 

r. Little, i. 6.')(i. 022. 

V. Mason, ii. ',(0. 
Cameto's Kst., i. 307, 447. 
Camley v. Stanfield, i. 6".t4. 
Camoron v. Tliurniond, i. 689; iii. 277. 
Camp r. Coxe, ii. 170. 

r. Pulvcr, i. 616. 
Campau v. Barnard, i. 723. 

I'. (Jo llrey, i 089; iii. 277. 

r. Shaw, i. 4'.'0. 
Campbell v Adair, i. 302, 370, 407. 

r. Arnold, i. 021. 

v. Avers, i. .301. 

V. Baldwin, ii. 90. 



Campbell ('. Beiniri, i. 340; ii. 205 ; ill 

20H. 

V. Brown, ii. 518. 514. 

r. Camjibell, i. (»91. 

V. Dearborn, ii. 63. 

V. Klliutt. i. 443. 

f. Knights, iii. 222. 

I'. Kuhn, iii. •H)'J. 

V. l.K;acli, ii. 093. 

V. Lewis, i. b'-'A). 

V. Ix)ader, i. 405, 049. 

V. McCoy, i. 608. 

f. Me.Manus, i. 379. 

c. Macomb, ii. 244. 

i;. Mesier, ii. 388. 

I' Murphy, i. 287, 293, 200. 

V. I'eim. Life Ins. C'o., ii. 670. 

V. I'rocter, i. 019. 

i;. Hawdon, iii. i')44. 

V. Samlys, i. 128. 

r Shipley, i. 592. 

V. Shrum, ii. 218. 

V. Smith, ii. 220. 

r. Stetson, i. 54(5. 

V. Ve.lder, ii. 118, 119,203. 

i\ Wilco.x, iii. 261. 

c. Wilson, ii. .■>34 
Campbells Appeal, i. 219. 
(^anal Ai)praisers r. I'eople, iii. 440, 442. 
Canal Co. r. Railroad Co. ii 13. 
Canal Comnirs. v. I'eople, iii. 439, 443, 

416. 
Canal Fund Conmirs. v. Kempshall, iii. 

430, 44:5. 
Canal Trustees r. Havens, iii. 460 
Canby v. Porter, i. 189. 
Candler r. Lunsford. iii 168 
Canedy v. Marcy, iii. 406, 408. 
Canfield v. Andrew, ii 307. 

r. Hard. i. .380; iii. .3.30. 
Cannan r. Hartley, i. 045. 
Canning r. i'inkham. iii. 310, 312. 
Caimon r. Boyd, ii. 3.'>l. 

c. White, iii. 109. 
Canny v. Andrews, ii. 367, .301, 395. 
Capen r. I'eckham, i. 22, 27. 

('. Kichardson, ii. 48, 4.'>9. 
Capers r. McKee. ii. 3.j(i. 
Capner i-. Flemington Mining Co., ii. 

141. 
Caraway v. Chancy, iii. 434. 
Carbrey v. Willis, 'ii. :W3 ; iii. 1(j9, 436, 

468. 
Carey i*. Rauglm, iii. 677, 679. 

r. Bishop, i. 21. 

r. Brown, ii. 574. 

V. Rawson, ii. .58. 

r. Wilcox, iii. 130. 
Cargill V. Sewnll, i. 102. 
Carleton v. Rediiigton, i 604. 006, 66d 
Carlin v. Chappel. ii :W». 
Carlisle »•. Blamire. ii. 177. 

V. Coore-. ii. 313. 317, XjO ; iii 16L 

I'. Godwin, i. 360, 415. 



xlii 



TABLE OF CASES CITED. 



Carll V. Butman, i. 242, 310, 311 ; ii. 

224. 
Carlton v. Buckner, ii. 97. 

V. Jackson, i. 239 ; ii. 202. 
Carman r. Jolmson, iii. 20G, 2U9, 211. 
Cannichael v. Carmichael, i. 277. 
Carpenter v. Allen, ii. 112. 

c. Black Hawk Mg. Co., ii. 89. 

V. BuUer, iii. 100. 

V. Carpenter, ii. 107. 

V. Colins, i. 619. 

V Ue.xter, iii. 33.3, 342, 346. 
V. Fairservice, iii. 259. 

V. Lonjjtan, ii. 258. 

V. Millard, i. 76 ; iii. 410. 

V. Muren, iii. 354. 

V. O'Douglierty, ii. 89. 

V. Prov. Ins. Co., ii. 241. 

V. Smith, ii. 670. 

V. Thompson, i. 591. 

V. Weeks, i. 245. 
Carpentier r. Brenham, ii. 113. 

V. Thirston, iii. 90. 

V. Webster, i. 691. 

1-. Williamson, ii. 261 ; iii. 381. 
Carr v. Caldwell, i. 430. 

V. Carr, ii. 53, 61. 

V. Foster, ii. 343, 359. 

V. Holhrook, ii. 58. 

V. Hoxie, iii. 324. 
Carradine v. O'Connor, ii. 80, 273. 
Carrig v. Dee, ii. 365. 
Carrington v. Roots, i. 15. 
Carroll v. Ballance, ii. 107, 108. 

V. Burns, ii. 655. 

V. Hancock, ii. 599, 664. 

V. Norwood, iii. 422, 434. 

V. Safford, iii. 209. 

V St. John's Soc, i. 499, 518, 628. 
Carruthers v. Humphrey, ii. 111. 
Carson i-. Baker, i. 622. 

V. Blazer, iii. 439. 

V. Coleman, iii. 224. 

V. Godley, i. 571. 

V. Mitchell, ii. 571. 

V. Murray, i. 263. 

V. New Bellevue Cemetery Co., iii. 
103. 

V. Plielps, ii. 551 ; iii. 251, 300. 
Carstairs v. Taylor, i. 577. 
Carswell r. Hartridge, i. 431 
Carter v. Burr, iii. 528. 

V. Carter, i. 524 ; ii. 54 ; iii. 100. 

V. Champion, iii. 85, 339. 

V. Dale, i. 173. 

V. Goodin. i. 241 ; ii. 106. 

V. Hanmiett, i. 555. 

V. Hunt, ii. 596. 

V. Lee, i. 593. 

V. McMichael, ii. 656. 

V. Montgomery, ii. 511. 

V. Parker, i. 246, 302. 

V. Peck, iii. 491. 

V. Eockett, ii. 240. 



Carter v. Spencer, iii. 210. 

V. Thomas, iii. 574. 

V. Warne, i. 554. 

V. Williams, i. 183. 
Cartwright '•. Cartwright, iii. 512. 

V. Gardner, i. 503, 516. 
Caruthers v. Caruthers, i. 327, 330. 
331. 

V. Humphrey, ii. 180. 
Carvagnaro v. Don, ii. 524. 
Carver v. Astor, iii. 77. 

V. Jackson, i. 467 ; ii. 615 ; iii. 100. 

V. Lasallette, iii. 406. 

r. Miller, i. 697. 
Carvick v. Blagrave, i. 594. 
Carwardine v. Carwardine, ii. 668, 671, 

762. 
Gary v. Daniels, ii. 367, 369, 371 ; iii. 
491. 

V. Prentiss, ii. 195. 

V. Tice, i. 368, 4.31. 

V. White, ii. 119, 15L 

V. Whiting, i. 538. 

V. Whiuiey, iii. 203, 216, 217. 
Casborne v. Scarfe, ii. 100, 146, 148, 

168. 
Case V. Benedict, iii. 108. 

V. Phelps, iii. 356, 357. 
Casebolt r. Donaldson, i. 326. 
Casey v. Buttolph, ii. 204. 

V. Gregory, i. 597. 

r. Inloes, iii. 55. 

V. King, i. 618. 
Casliman v. Henry, i. 351 ; ii. 219. 
Cason i;. Hubbard, i. 257, 271 ; iii. 267 
Casporus v. Jones, i. 290. 
Cass V. Martin, i. 242, 304, 307. 

V. Thompson, i. 209. 
Cassel V. Ross. i. 403. 
Casselman v. Packard, i. 381. 
Caster v. Williams, ii. 323. 
Castle V. Dod, ii. 416, 428. 

V. Palmer, i. 421, 438, 459. 
Castleman v. Belt, ii. 142. 
Caswell, Ex jtarte, ii. 689. 

V. Districh, i. 606, 607. 
Gates V. Wadlington, iii. 439. 
Catham v. State, iii. 53. 
Cathcart v. Bowman, iii. 489. 

r. Robinson, i. 41 ; iii. 358. 
Catlierwood c. Watson, ii. 511. 
Catlin r. Hurlburt, iii. 479, 485, 527. 

r. Kidder, i. 689. 

V. IMjlncr, i. 341. 

V. Ware, i. 257, 298, 301 ; iii. 272, 
273, 282. 
Gator V. Pembroke, ii. 90, 94. 
Catt V. Tourle, ii. 323. 
Cattley v. Arnold, i. 629, 637. 
Cattlin V. Brown, ii. 793. 
Caufraan v. Sayre, ii. 193, 277. 
Cave r. Crafts, ii. 331. 
Cavender v. Smith, iii. 206, 209, 211, 
328. 



TABLE OF CASES CITED. 



xlili 



Cavis V. McClary, ii. 177. 

CuziiiDVi' r. Cutler, ii. 2.'{9. 

Cecil r. BeuvtT, ii. oUO ; iii. IJOO, -TOO, 

312, 31;]. 
Center v. Pliiiitertt' & M. Bank, ii. 125, 

15:5. 
Central Briil^e Co. r. Lowell, ii. 308. 
Central .Mills Co. c. Hart. i. 02tJ. 
Central I'acitic K. K. Co. c. Meud, iii. 

IJI. 
Central Park Com., /.V. i. 70. 
Central K. U (^o. v. Fritz, i. 723 
Central Wiiarf u. Inilia Wharf, ii. 3G1. 
Cesar r. Kariitz, i. f>7<5. 
Cessill v. State, iii. 440. 
Cliace I', llinmun, ii. 271. 
Clia.ll)()uri\e r. Ma.son, iii. 432. 
Cliailwiek c Felt, ii. .')11. 

V. Ilaverliill Hridce, ii. 304, 300. 

V. I'arker, i. 512, 516. 

V. I'erkins, ii. 54H. 
Chaffee v. Franklin, i. 210. 
ChalHn v. ChalHn, iii. 435. 
Cliaires c. Braiiy, ii. •>'■'>. 
Chall'ant >: (iraiit. i. :^7S. 
Chalker c. Chalker, ii. 13, 18, 20; iii, 

402. 
Chailefon.x i-. Ducharnie, i. 686, 688; 

iii. l.'>.{, 204. 
Chamberlain v. Bell, iii. 339. 

V. Bradley, iii. 343. 460. 

r- Biissey, iii. 283. 

V. Crane, ii. 474. 

V. Meeder, iii. 110, 128. 

V. Preble, iii 504. 

i;. Staunton, iii. 304. 

V. Stearns, iii. 510. 

r. Thompson, ii. 100, 1G8, 174. 
Chamberlin >•. Donahue, i. 613, 020, 

02(i, 034, 053. 
Chambers r. Cox, i. 4.30. 

r. (Joldwin, ii. 67, 244. 

V. Keene, ii. 276. 

V. Pi-rrv, ii. 5<)7. 

V. Pleak. i. 502. 

V. Wilson, ii. 742. 
Chanibliss v. Jonlan, i. 355. 
ChaMii)i()n v. Spencer, i. 711. 
Cliam|)lin v. Foster, ii. 263. 

V. .McLeod, ii. '.Hi. 
Champncy v. Coope, ii. 137. 107, 206. 
Chancellor c. Windham, ii. 475. 
Chandler i-. Brown, iii. 142, 501, 507. 

r. Cheney, i 70'.». 

t. Delajilaine, ii. 717. 71S. 

r. Hollingsworth, i. Ibo. 227; iii. 
350. 

r. Jamaica Plain Aq. Co., ii. .350, 
306. 

I'. Kent, i. 477 ; iii. 292 

r. McKinney, ii. 271 ; iii. 267. 

V. SimmoiiA, i. 487. 6!)9. 

r. Spi'ar, iii. 16t>. ;];}4. 

f. Temple, iii. 312. 



Chatidler r. 'I'honip<ion, ii. 398. 

V. ThurHion, i. 12. 141, 004, COS, 
010. 
Chaney i'. Chancy, i. 210. 
Chapel o. Bull, iii. 405, 630. 

r. Clapii. iii. .355. 
Chapin r. First Univerealist Soc, iii. 
27H. 

V. Harris, ii. 27. 

r. Hill, i. .3.32. 3:54. 335. 
Chaplin c Chaplin, i. 11.3. 

V. Sawyer, i. 307. 413. 

('. Simninns, i. 282. 
Chapnnm c. Bluck, i. 481, 482. 

I', lirown, ii. ti^l ; iii. 067. 

V. Chapman, ii. 87. 

V. (iray, i. 407. 

V. Harney, i. 512. 

r. Kirby, i. 512. 

V. Lon|r, iii. 416. 

r. McGrew, i. 627. 

i;. Miller, iii. 262. 

r. Hoberts(jn, ii. 256. 

V. Schroeder. i. 210, 277, 298. 

V. Tanner, ii. 00, 230. 

V. Towner, i. 4b2. 

r. Wright, i. 513. 
Chappell v. Allen, ii. 8-3. 
Charle v. Safli)l(i. iii. 108. 
Charles r. Andrews, i. ;>jO. 

V. Dubose, ii. 523. 

V. Dinibar, ii. 237. 
Charles Kiver Bridge v. Warren Bridge, 

ii. .310 ; iii. 50, 202. 
Charless i\ Kankin, ii. 381, 382. 
Charter v. Stevens, ii. 81. 
Chase v. Abbott, i. 388; ii. 110, 104, 
201. 

V. Ilazelion, i. 148, 160, 105, 

V. Kittredge, iii. 5;]0. 

r. Lockerman, ii. 147. 

c. .McLellan, ii. 248. 

r. Palmer, ii. 2;>5. 

V. IVck, ii. 48, 80, 01. 98. 

r. iSilver.stone, ii. 374. 

V. Weston, iii. 501, 603. 

V. Wingate, ii. 20. 

V. Woodburv, ii. 2(»0. 211, 212. 213. 
Chase's case, i. 210, 220. 232, 256 ; ii. 51. 
Chaseniore r. Richards, ii 374. 375,377. 
Chatfield c. Wilson, ii. .374, 375. 
Chatham /•. Brainerd, iii. 440. 

.". Souls, i. 305. 
Chatterton v. Fo.x. i. 560, 505. 
Chauncey v. Arnold, iii. 254. 
Clianncy r. fJraydon, ii. 16. 
Chetlington's case, ii. 724. 
Cheeseborough v. Green, i. 18, 698 ; iL 

;iM9. 

Cheesehrough r. Millard, ii. l-'W. 200, 
210, 221, 222. 224, 22H. 220. '2iV\, 231. 
Cheetham r. Hamp!<rin. i. 670. 672. 
Chcevcr r. Pearson, i. 016, 622. 
f. I'erley, ii. lUl. 



xliv 



TABLE OP CASES CITED. 



Cheever r. Rutland & B. R. R., ii. 106. 
Chellis V. Stearns, ii. 105, 139. 
Clielton V. Henderson, i. 117. 
Chenango Bridge Co. v. Paige, ii. 305, 

308. 
Chenery v. Stevens, iii. 376. 
Clieney v. Rodgers, i. 432. 

V. Rosser, i. 369. 

r. Watkins, ii. 473 ; iii. 339, 393, 

394, 395. 
V. Woodruff, ii. 261. 
Cherrington v. Abney, ii. 363, 398. 
Clierry v. Monro, ii. 226. 

i: Slade, iii. 433. 

V. Steele, iii. 455. 

V. Stein, ii. 319, 365, 373. 

V. Ware, i. 369. 
Chesapeake & Oliio Canal Co. v. Balti- 
more & Ohio R. R. Co., ii. 13. 
Cheshire v. Barrett, i. 489. 
Chesley v. King, ii. 375. 

V. Thompson, i. 694. 

V. Welch, i. 140, 141. 
Chesnut v. Shane, iii. 224, 227, 228. 
Chessman v. Whitteniore, iii. 260. 
Chester v. Willan, i. 681. 
Chettle V. Pound, i. 591, 599. 
Chetwood v. Winston, ii. 763, 768. 
Chew V. Buchanan, ii. 128. 

V. Commissifiners, i. 182, 183, 185. 

V. Farmers' Bank, i. 278, 338. 

V. Morton, iii. 96. 
Chew's Appeal, ii. 597. 
Chicago r. Earned, iii. 228, 224, 234. 

V. N. W. R. R., ii. 343. 

V. Robbins, i. 572. 

V. Wright, i. 658. 
Chicago Dock, &c. Co. v. Kinzie, iii. 

65, 66. 
Chicago, D., & V. R. R. v. Lowenthal, 

ii. 125. 
Chicago Legal News v. Brown, i. 558. 
Chick V. Rollins, ii. 189, 190, 191. 

V. Willetts, ii. 110, 113, 192. 
Chickeiey's case, i. 502. 
Child V. Baylie, i. 107. 

V. Singleton, i. 408. 

V. Starr, iii. 438, 448, 452. 

V. Wells, iii. 454. 
Childs r. Chiids, ii. 266. 

V. Clark, i. 550, 551. 

V. Dolan, ii. 80. 
' V. McChesney, iii. 125. 

V. Sampson, i. 487. 

V. Smith, i. 320. 
Chiles V. Conley, iii. 285. 
Chilton r. Braiden's Admx., ii. 91. 

r. London, ii. 313, 348. 

V. Niblett, i. 632. 

?•. Wilson, iii. 156. 
Chinn r. Respass, i. 17. 
Chipman v. Emeric, i. 1-57, 165, 503. 
Chiy)pendale, Ex parte, ii. 88. 
Chirac v. Reinecker, iii. 14. 



Chisholm i-. Georgia, i. 68. 
Chittenden r. Barney, ii. 182. 
Choate v. Burnhani, iii. 453, 472. 
Cliolmelj' i: Paxton, i. 161. 
Cholmley's case, ii. 630. 
Cholniondelev v. Clinton, ii. 175, 178, 
182, 187, 189, 426, 530, 534; iii. 175, 
176, 401. 
Choteau v. Jones, iii. 241, 339. 
Chouteau v. Eckliart, iii. 74, 204. 
Chowning v. Cox, ii. 45, 72. 
Christ Church v. Mack, ii, 365. 
Christian v. Dripps, i. 6, 28. 

V. Newberry, ii. 194. 
Christie ;;. Gage, iii. 154. 
Christopher r. Austin, i. 559, 561, 564. 
V. Christopher, ii. 92, 93. 
r. Williams, i. 431. 
Christy v. Dyer, i. 872, 419, 436, 450; 

ii. 259. 
Chubb V. Johnson, iii. 18. 
Chudleigh's case, ii. 418, 414, 424, 425, 
426, 429, 436, 440, 441, 446, 447, 462, 
662, 678, 679. 
Church c. Bull, i. 336. 

V. Burgiiardt, ii. 342 ; iii. 70, 146, 

147, 152. 
V. Church, i. 215, 306 ; ii. 526. 
V. Gilman, iii. 218, 239, 299, 310, 

314. 
r. Meeker, iii. 61, 447, 448, 451. 
V. Savage, ii. 208. 
V. Wells, i. 35. 
Churchill i'. Churchill, ii. 655; iii. 

577. 
Churchward v. Ford, i. 556. 
Cibel f. Hills, i. 564. 
Cicotte V. Gagnier, ii. 154. 
Cincinnati r. Newell, iii. 272. 

r. White, iii. 80. 
Cincinnati, W., & Z. R. R. Co. v. Iliff, iii. 

308, 317, 318, 32.3. 
Cipperby v. Rhodes, i. 417, 448, 419. 
Cissna i: Haines, ii. 196. 
City Bank v. Smith, ii. 22. 
City Council r. Moorhead, i. 569. 
Clariin 1-. Carpenter, i. 13, 671; iii. 293, 
364, 366. 
V. Godfrey, ii. 196. 
Clancy i\ Byrne, i. 571. 
Clanrickard v. Sidney, iii. 403. 
Clap I'. Draper, i. 10; iii. 305, 417, 473. 
Clapp i\ Boston, i. 662. 

V. Bromagham, i. 715 : iii. 155. 
V. Ingraham, ii. 532, 689. 
V. Leatherbee, iii. 354. 
V. Stoughton, ii. 16; iii. 20. 
r. Tirrell, iii. 3.54. 
Claremont v. Carieton, iii. 439, 4.53. 
Claremont Bridge v. Royce, iii. 361. 
Claridge v. McKenzie, i. 600. 
Clark V. Allen, iii. 256. 
V. Babcock, i. 576. 
V. Baird, iii. 454. 



TAHLr: OF CASES CITED. 



XIV 



Clark V. Baker, i. 82; ii. 177; iii. 100. 
lo.j, intS, 10)). 11.') II".), 61-J. 
V. Bench, ii. lO'J, 10l», 174. 
r. Ik'il. ii. '.t8. 
V. Brown, i. (i80; ii. 68. 
V. Bult. i. 475. 
V. Ciimpiiii. iii. 459. 
V. Clia.si', iii. 14!*. 
V. Clark, i. MH, 177, 191, 222, 223, 

70!) ; ii. 4U.j. 
V. Conrof, iii. 4S1), 600, 500. 
V. Cottri-i, iii. 471. 
i;. Crosby, i. :{l)7 ; ii 256. 
V. Duval, ii. 379. 
V. Kiy, ii. 2l'9. 
V. Foot, i. 157. 
V. Giffor.l. iii. 821. 
r. (iiil)ert, ii. 3:59 : iii. l.')8, 17-4. 
V. Gordon, i. 499. 518, 028. 
V. Graliani, iii. 250, 286, 291. 
V. Grilfitii. i. 330. 
I'. H.-iMiintrle iii. 74 
V. Ik-nrv. ii. 45. 40, G5. 
V. HoliltMi, i. 1()1. 
V. Hunt. ii. 93, 95. 96. 98. 
V. .Jenkins, ii. 118. 154. 
V. Jones, i. 502, 506. 
I'. Koiilier, i. 645, 660. 
V. Kin;;8lev, iii. 233. 
I'. Martin, ii. ;L>3, 324, .326. 
V. Merrill, i. 471. 
r. Munroe, i. 230. 
V. Owens, i. 121. 
i". I'arker. i. 714. 
V. Prentice, ii. 263, 264. 
V. Heilnian. i. 2t)(). 
r. Heyhurn. ii. 110, 113, 249. 
V. Scott, iii. 55'.'. 
«•. Shannon, i. 37(5. 4.30. 
V. Smith, i. 016. O.'l, 687; ii. 238, 

2.;9, 240, 654. 
V. Snodgrass. i. 384. 
V. Kwift. iii. 479, 480, 489, 490. 
I'. Tennyson, ii. 10. 
V. Trail, iii. 178. 
V. Trawick. i. 8-32. 
f. Troy, iii. 312. 
V. Way. i. 16. 
V. Wheelock. i. 617. 
r. White, ii. .304. 
V. Williams, i. 6.3 
V. Wilson, ii. 241. 243. 
Clarke r. Bancroft, ii 229, 231. 
I'. Courtney, iii. 294. 
I'. Cunnniiif^s, i. 515, 5.36. 
v. Curtis, ii. 106, 173. 
V. Hayes, iii. 229. 
V. McAnulty, iii. 607. 
V. McClure. i. 63 ; iii. 139, 153. 
V. Minot, ii. 432. 
V. Kav, iii. 311. 
II. Kochester, ii. 304 ; iii. 223. 224. 

234. 
V. Sibley, ii. 44. 



Clarke i-. Van Surlay. iii. 229. 
Clarkson r. Skidinore, i. 484; ii. 261. 
Clary c. Frayer, ii. 704. 

r. Owen, i. 26; ii. 181, 2a3. 
Cla8on r. Ct>rley, ii. 249. 
I'. Shejilurd, ii. 151. 
ClauHHcn V. La Fran/, ii. 525, 503. 
Clavfrinj; r. ("laverinjf, i. 151. 
Claw^oll /•. rrimrose. ii. 365. 
Clay V. itichardson. i. 435. 
r. Sharpe. li. 74. 
r. Wren. ii. 116. 
Clavcoinb v. .Muiiger, iii. 500, 505, 

531. 
Clayton r. HIakelv. i. 640. 

V. Corby, ii. 39.3. 
Clearwater c Kose, i. 88. 
Cleary r. McDowell, i il44. 
Cle.iveland '•. Flagg, iii. .352, 436. 
('leaver r. ('leaver, iii. bo'.l 
Clee V. Seaman, iii. 99. 102. 
Clegg 1-. Rowland, i. 488. 
Clenience v. Stecre.i. 148, 150, 152, 164, 

155. 
Clemens i^. Bromfield. i. 6.32. 
Clement r. Youngman. i. 19; ii. 401, 

402, 403; iii. 406, 417. 
Clements v. Lacy, i. 379, 426, 466. 
V. Lami>kin, iii. 152. 
r. Landrum, iii. 398. 
Clemm c. Wilcox, i. 693. 
Clepper v. Livergood, i. 174. 
Clei'e's case, ii. 455. 721. 
Cleveland v. Ilallett, ii. 490, 537, 538. 
539, 548. 
V. .Tot)e.>«, iii. 141. 
V. .Martin, ii. 102, 195. 
V. State Bank. ii. 708. 
Cleveland, Columbus, &c. R. R. r. Co- 
burn, ii. 8. 
Clevi-8 V. Wiliouglihy. i. 556, 670. 
ClilFord r. Parker, iii. 259. 

r. Watts, i. 537. 659, 566. 
Clift r. White, i. 587. 
Climie v. Wood, i. 26. 29. 
Cline V. Black, i. 585; iii. 287. 

V. Upton, i. 465. 
Clinton r. FIv. ii. 69. 

r. Westlirook, ii. 106. 109. 
Clinton C'o. v. Co.x, ii. 192. 
Close c. Samm, iii. 151. 162. 164. 
Cloud r. Calhoun, ii. 562, 655; iii. 308, 

315. 
Clougli c. Bowman, iii. 422. 
r. Clounh, iii. 'J97. 
r. Elliott, i. 305 ; ii. 222. 
V. Hosford. i. 626. 62». 
Clouse V. F.lliott. iii 1;'>4. 
Clowes r. Dickenson, ii. 186, 212. 

V. Hawlev. i. 690. 
ClufTgaKe i: Duncan, iii. 16.3. 164, lOd 
Clun's case. i. 13.3. 549. 656, 556. 
Clute i: Carr. i. (Wi6, 671. 
Clvnier v. Dawkins, i. 689. 



xlvi 



TABLE OF CASES CITED. 



Coates V. Clieever, i. 151, 217, 218, 239, 
241, 297, 2y8. 

V. Woodworth, ii. 518, 562. 
Cobb V. Arnold, i. GOO. 

V. Bennett, ii. 390. 

V. Lavalle, i. 466. 

V. Smith, iii. 441. 

V. Stokes, i. 635. 
Cobel V. Cobel, i. 549. 
Cob urn, Ex parte, i. 662, 667. 

V. Ames, iii. 445. 

V. Coxeter, ii. 314; iii. 434. 

V. EUenvvood, i. 719. 

V. Harvey, ii. 291. 

V. Hollis, iii. 136, 161. 

V. Litclifield, iii. 529. 

r. Palmer, i. 590, 615. 
Coijhran v. Darcy, i. 355. 

V. Flint, i. 10. 

V. Goodell, ii. 149, 255. 

V. Guild, iii. 492. 

V. Harrow, iii. 85. 

V. O'Hern, i. 176, 177, 341. 

V. Van Surlay, iii. 229. 
Cochrane v. Paris, iii. 156. 

V. Libby, i. 246. 
Cocke V. Brogan, iii. 115, 292. 
Cocker v. Covvper, i. 666, 672. 
Cockery i-. Hart, ii. 72. 
Cockin's Appeal, ii. 654. 
Coder v. Huling, i. 702. 
Codman r. Evans, ii 314; iii. 421, 449. 

V. Jenkins, i. 592. 

i: Hall, i. 492. 

V. Winslow, i. 20; iii. 138, 217. 
Codrington v. Johnstone, i. 145. 
Codwise r. Taylor, ii. 81, 98. 
Cody V Quarterman, i. 618,637 
Coe V. Clav, i. 475, 565. 

V. Cofumbus, &c. R. R., ii. 56, 163, 
164. 

V. Hobby, i. 581. 

V. Johnson, ii. 82. 

V. McBrown, ii. 82. 

V. Persons Unknown, iii. 121. 

V. Smith, i. 418, 434. 

V. Wolcottville Mg. Co., i. 189, 341. 
Coffin V. Heath, i. 697, 698; ii. 389. 

V Loring, ii 42, 53, 57, 256. 

V. Lunt, i. 631. 

V. Rav, iii. 346. 
Coffman r. Huck. i. 624. 
Cofran r. Cockran, iii. 217, 296. 
Cogan i". Cogan, ii. 591, 633, 674. 

V. Frisby, iii. 343. 
Cogel V. :Mickow, i. 379. 
Coggswell V. Coggswell, i. 131. 

V. Tibbetts, i. 253. 
Coghil r. Froelove, i. 536. 
Cohen v. Davis, i. 384, 416. 430, 447. 

V. Dtipont, i. 564. 
Coit V. Starkweather, iii. 291. 
Coke V. Gutkese, i. 577. 
Coker v. Pearsall, ii. 142. 



Colburn v. Mason, i. 689. 

V. Morrill, i. 564. 

I-'. Richards, ii. 368. 
Colby V. Duncan, ii. 597. 610. 

V. Kenniston, iii. 337. 

V. Korton, iii. 97. 

V. Osgood, iii. 478, 512. 
Colchester v. Brooke, i. 635. 

V. Roberts, ii. 352. 
Colcord V. Swan, iii. 123, 124, 275. 
Cold Spring Iron Works v. Tolland, 

iii. 437. 
Cole V. Batley, iii. 16. 

V. Eagle, i. 657. 

V. Edgerly, ii. 121, 137. 

V. Gill, i. 361, 372, 419, 622 ; iii. 
313. 

V. Hughes, ii. 296, 297, 298, 299, 
386. 

V. Kimball, iii. 501. 

V. La Chambre, i. 355, 

V. Lake Company, i. 56, 619 ; ii. 
153; iii. 408. 

r. Levingston, ii. 605. 

V. Patterson, i. 549. 

V. Raymond, iii. 117, 498, 501, 513. 

V. Roach, i. 7. 

1-. Roe, iii. 174. 

V. Savings Bank, i. 377. 

V. Scott, ii. 93. 

V. Seweil, ii. 606, 630, 668, 683. 

V. Stewart, ii. 140, 163. 

V. Wade, ii. 558, 566, 567. 
Colobeck V. Girdler's Co., i. 521. 
Colegrave c. Dios Santos, i. 16. 
Coleman c. Barklevv, iii. 336. 

V. Bush, iii. 422. 

V. Cliadwick, ii. 374, 384. 

V. Coleman, i. 711. 

V. Foster, i. 665, 667, 671. 

V. Haight, i. 667. 

V. Holmes, iii. 191. 

V. Lane, i. 685. 

V. Lewis, i. 9. 

V. Lyman, iii. 480. 

V. Manhattan B. Imp. Co, iii. 446. 

r. Packard, ii. 66, 112. 
Coles ". Allen, ii. 514. 

V. Coles, i. 315. 

1-. Soulsby, iii. 399. 

V. Woodmg, i. 711. 
Colgan V. Bellings, iii. 157. 

v. McKeon, iii. 54. 
Collamer v. Kelly, i. 545. 

V. Langdon, ii. 122. 
Collier ?-. Blake, ii. 557. 

V. Gamble, iii. 487. 

V. Pierce, ii. 319, 364, 365, 399, 
400. 
Collins V. Canty, i. 638. 

V. Carlile, ii. 157. 

V. Carman, i. 336, 337. 

V. Chantland, i. 450, 458. 

V. Driscoll, ii. 315. 



TAULK OF CASES CITKD. 



xlvii 



Collins V. Ewinp. ii. 300. 

V. Ilusbrouck, i. 645. 

I'. Hopkins, ii. 7o. 

r. I'ti-ntico. ii. ^JO; iii. 278. 

V. Sniitli, ii. ;>l'-', [Ai'J. 

V. Torrv, i. 'i-'^T, U3U, 21 1 , 2 IC. 

c. Wliildin. i. 547. 
Collins .Mfg. Co. f. Marcy, ii. 14. 
Coliniin '•. AndiTsoii, iii. '2'->l. 

r. I'ackanl. ii. 70, 110. 
Colqulioim '■. Atkinson, iii. U'.tO, 303. 
(?o!(liiltt r. Brown, i. 38tj, 41(5. 
Colthirst r. Ik-jiisliin, ii. ()()1, 072. 
Coltniim r. Senliousc, ii. 774. 
Colton V. Seuvcv, iii. 288, 428, 431, 
45:5. 

V. Smith, i. 714, 717; ii. 173, 175. 
Coltsra.in r. Coltsnian, ii. 707. 
Columbia College f. Lynch, ii. 317, 
323. 

I-. Thacher, iii. 502. 
Colvin '•. Hurnc'tt, ii. 337, 312. 

I'. U'urfonl, i. 603, ()J3; iii. 247. 
Cohvell r. Warner, ii. 131. 

v. Woods, ii. 57, Gl. 
Colyer r. Finch, ii. 87. 
Comhes'a ciise, i. 47'J ; ii. 080. 
Combs I'. Brown, ii. 547, 500. 

r. Jackson, i. 09. 
(^omby V. McMichael, ii. 540. 
Comer r. Chamberlain, i. 187. 
Comerfonl r. Cobb, iii. 290. 
("Jominp, E.r parte, ii. 87. 
Comins i-. Comins, iii. 150, 174. 
Comly i: Strader. i. 200. 
Commercial Bank v. Corbett, i. 423. 

V. Cunningliam, ii. 157. 
Commissioners v. Thomi)son, iii. 427. 
Commissioners for Sale of School Lands 

in Equity r. Babcock, ii. 153. 
Commissioners of Canal Fund, &c. See 

Canal, &c. 
Commonwealth v. Alger, i. 2, 68, 69, 
70 ; iii. 214, 224, 438, 439, 447, 
459. 

V. Andre, i. 79 ; iii. 64, 77. 

V. Chapin, iii. 4-39, 443. 

V. Chapman, i. 40. 

I'. Charlestown, i. 08. 

V. Contner, i. 548. 

V. Coupe, ii. 348. 

V. Dudley, iii. 325. 

V. Franklin Ins. Co., i. 555. 

I'. Ilackett, ii. 588. 

V. Haley, i. 0(30. 

V. Harrington, i. 499. 

I'. Hite, iii. 53. 

V. Hunt. i. 223. 

V. Knowlton, i. 40. 

V. Lane, i. 223, 224. 

w. Leach, i. 40. 

i". Low, ii. 392. 

1-. Old Colony R. R., ii. 348. 

r. Tejepscut Proprs., iii. 93. 



Commonwealth r. Uoxburv, i 08 iii. 
1'J5. 19^ 201, 202, 214. 215, 
210, 217, 40M, 432, 4lt., 417. 

I'. Smith, ii. I(i5. 

V. StHullcr, ii. 10 

r. Tewksbury, i. 2, 70. 

V. L'|>ton, ii. 'M'J. 

V. Vincent, iii. 443. 

V. Williams, ii. 731. 
Commonwealth Ins. Co. v. Spankncbic, 

ii. 173. 
Compiler r. Compiler, i. 378, 411. 
Comstock r. Bros-seau, i. 05.'. 

V. Hilt, ii 117. 

V. Smith, ii. 184; iii. 102, 113, 110, 
119, 121, 2.V.I. 508. 

r. Van Dcusen, ii. 352. 
Comuniis v. Wesselhaft, ii. 204. 
Conant f. Little, i. 283, 281, 317. 

V. Smith, i. 718. 

V. Warren, i. 'M'J. 
Conard r. Atlantic Ins. Co., ii. 157. 
Concord Bunk r. Bellis, iii. 78, 107, 116, 

201, 283, 309. 
Concord Union Mut. F. Ins. Co. v. 

Wooilbury, ii. 241, 209. 
Condict r. Flower, ii. 219, 

V. King, ii. 799. 
Condit V. Neighbor, ii. 806. 
Condon v. Barr, i. 051. 
Conger r. Ring, ii. 509. 
Congleton v. I'attison, i. 533. 
Congreve /•. Smith, i. 571. 
Conkey r. Hart, ii. 77. 
Conklin c. Buyd, ii. .378. 

r. Conklin, ii. 704. 

V. Foster, i. 370. 

V. Parsons, i. 24. 
Conkling r. Brown, i. 719. 
Conn r. l\nn, iii. 455. 
Conn.illy v. Hardwick, i. .359, .369. 
Connelly i-. Doe d. Skeliy, iii. 303. 
Conner r. Bradley, i. 51.]. 

I'. Chase, ii. 54. 

r. Lewis, ii. 501, 520. 

I'. Nichols, i. 432. 

I'. Sliejiard, i. 119, 219. 

c. Tuck, ii 559. 

V. Whitmore, ii. 119, 122. 133. 
177. 
Connery v. Brooke, ii. 351, 354; iii. 

409. 
Connor v. Follansbee, ii. 503, 513, 618, 
619; iii. 392. 

V. McMurray, i. 437, 438. 

I*. Nichols, i. 434. 

r. Sullivan, ii. 343. 
Conover r. Beckett, ii. 525. 

V. HotTmnn, ii. 552, 554. 

V. Mut. Ins. Co.. ii. 173. 

V. Porter, i. 200 ; iii. 263. 

r. Stothoflf. ii. 574. 

r. W.irrcn, ii. 95. 
Conrad c. Harrison, ii. 215, 231. 



xlviii 



TABLE OF CASES CITED. 



Conroy v. Sullivan, i. 417. 
Constable v. Nicholson, ii. 213, 348. 
Constant v. Abell, i. 6o0. 

V. IMatteson, ii. '226, 575. 
Continental Nat. Bk. c. Commonwealth 

Nat. Bk., ill. 90. 
Converse v. Blunirick, ii. 98. 

V. Converse, iii. 547. 

V. Ferrey, i. 697. 

V. Wales, iii. 577. 

v. Walker, i. 571. 
Conway v. Alexander, ii. 45, 51, 60, 63. 

V. Cable, iii. 228, 235. 

V. Dunfield, iii. 326. 

V. Starkweather, i. 636, 650. 

V. Taylor, ii. 304, 305, 306. 
Conwell V. Evill, ii. 53. 
Cooch V. Gerry, ii. 106. 
Cook V. Allen, i. 711, 717. 

V. Babcock, iii. 94, 139, 145, 146, 
151. 

V. Basley, ii. 75. 

v. Bisbee, i. 95. 

V. Brightly, i. 627 ; ii. 204, 294, 302, 
303. 

V. Brown, iii. 299, 308, 320. 

V. Champlain Transp. Co., i. 156. 

V. Collyer, ii. 53. 

V. Cook, i. 136, 138, 320, 617. 

V. Davenport, i. 719. 

V. Dennis, iii. 157. 

V. Fisk, i. 206. 

V. Gerrard, ii. 605. 

i;. Gudger, ii. 61. 

V. Guerra, i. 552. 

V. Hammond, i. 67, 70, 269 ; ii. 803, 
804 ; iii. 14. 

V. Hull, ii. 371. 

V. Humber, i. 511. 

V. Johnson, i. 596 ; ii. 142. 

V. Klink, i. 457. 

V. Mayor of Bath, ii. 356. 

V. McChristian, i. 368, 384, 400. 

V. Norton, i. 653. 

V. Pridgen, i. 670. 

V. Sinnamon, iii. 279. 

V. Stearns, i. 661, 663, 666, 671. 

V. Whiting, i. 14 ; iii. 416. 
Cooke V. Lo.xley, i. 589. 

V. Piatt, ii. 717. 
Cool V. Peters Box, &c. Co., iii. 369. 
Cooley V. Hobart, ii 260. 
Coolidge I'. Learned, ii. 334, 392 ; iii. 
57, 58. 

V. Melvin, ii. .31 ; iii. 353, 357. 

V. Wells, i. 374. 
Coombs r. Anderson, i. 118. 

V. Jordan, ii. 156. 

V. Warren, ii. 172. 

V. Young, i. 266. 
Coon V. Brickett, i. 614 ; ii. 21. 

V. Smith, iii. 94. 
Cooper V. Adams, i. 5, 619. 

t'. Band}', i. 600. 



Cooper V. Barber, ii. 376. 

V. Brockway, iii. 240. 

V. Cole, i 602. 

V. Cooper, i. 118, 709 ; ii. 498, 561, 
657, 780. 

V. Crosby, ii. 72. 

V. Davis, ii. 115, 141, 142, 169, 176. 

V. Jackson, iii. 301, 305, 306. 

V. Louanstein, ii. 364, 365. 

r. Martin, ii. 181. 

V. Smith, i. 592; iii. 148. 

V. Ulmann, ii. 127. 

V. Whitney, i. 213 ; ii. 501. 

v., ii. 285. 

Cope V. Cope, ii. 207. 

r. Meeks, iii. 261, 268. 
Copeland v. Copeland, ii. 151 ; Iii. 83, 88. 

V. Stephens, i. 554. 
Copenrath v. Kienbv, iii. 263. 
Copley V. Riddle, iif. 206. 
Cojipage V. Alexander, ii. 10, 11. 
Coppring v. Cook, ii. 236. 
Corbet v. Corbet, i. 330. 

v. Laurens, i. 129. 

V. Stone, ii. 635, 672. 
Corbett v. Norcross, i. 719. 

V. Waterman, ii. 220. 
Corbin v. Cannon, i. 690. 

V. Healy, i. 106, 114 ; iii. 423- 

V. Jackson, i. 720. 
Corder v. Morgan, ii. 74. 
Cordes v. Miller, i. 565. 
Core V. Faupel, iii. 154. 
Corey v. People, i. 315. 
Corkhill v. Landers, iii. 97. 
Corlies v. Howland, ii. 91. 
Corliss V- Corliss, iii. 344. 
Cormerais v. Genella, ii. 80. 

V. Wesselhoeft, ii. 254, 506. 
Cornelius v. Ivins, ii. 16. 
Cornell v. Hall, ii. 62. 

V. Hitchins, ii. 267. 

I'. Jackson, i. 61 ; iii. 135, 435, 492, 
522, 627, 528. 

V. Lamb, ii. 286. 

V. Prescott, ii. 227. 
Corning v. Gould, i. 564 ; ii. 346, 356, 
357, 360, 395; iii. 67, 69, 72, 
80. 

V. Smith, ii. 265, 269, 270. 

V. Troy Iron, &c. Factory, i. 33 ; 
iii. 160, 350, 4-35, 462. 
Cornish v. Abington, iii. 89. 

V. Searell, i. 600. 

1-. Stubbs, i. 539. 
Cornog y. Fuller, ii. 199. 
Cornwall v. Cornwall, i. 702. 
Cornwell v. Wooley, iii. 642. 
Corpening v. Kincaid, i. 454, 460. 
Corr V. Shackelford, i. 855. 
Cornell v. Ham, i. 335. 
Cortelyeu v. Hathaway, ii. 141. 
Cortelvou v. Van Brunt, iii. 446. 
Corwin v. Corwin, iii. 393, 396. 



TAHLK OF CASES CITKD. 



xlix 



rorwitlio r. GrifTlnir, i. 713 
Cury I'. Cury, ii. 721. 
('osteii's A|i|»eiil, li. 071. 
Coster r. Hiciwii, ii. I'.tli. 

r. C'liuk, i. >'IU, L'i:{. 

I'. Lurillanl. ii. 4M. 570. 
Cote c. Deqiiiiulri', i. 7Uo; ii. 263. 
Cotlier r. .Nltrrick, i. 6oO. 
Cottfu r. .Mctit'lice, ii. U7. 
CottiT r. Liiyrr, ii. 783, 734. 
CottiTell r. Diitton, iii. 17». 

r. LoiifT, ii. •<>, i'>4, 03. 

I'. I'lirclmsc, ii. 02. 
rottiiiglmm r. Springer, ii. 170. 
Cottle (• Young, iii. 450. 
Cotton, Ii.r /iiirti , i. 12.'). 

I'. I'ocasset Mg. Co , ii. 314. 

r. Ward, iii. 512, 528. 

V. Wood, i. 404. 
CoulIi c. Stratton, i. 331. 
Cougliliii c. (.'ouiililiii, i. 430. 
Coulter r. Holland, i. 2!HJ. 

c. Hohertson, ii. 53r*. 
Coundun c. Clerke, ii. (530; iii 279,281. 
Country man r. Deck, iii. 4'.t4. 
Coursey v. Davis, ii. (J(M>. 
Couririglit r. Courtriglit, iii. 406. 
Covell r. Dolloff, ii. 1(16. 
Cowart 1-. Page, i. 3t*0. 
Cowderi (• St. John, i. 31. 
Cowden's testate, ii. 215, 230. 
Cowdrey v. Cowdrey, i 390, 405. 
Cowdry v. Coit, iii. 508. 

r. Day, ii. 00. 
Cowell »•. Lumley, i. 622. 

V. Springs Co , ii. 25. 

r. Thayer, ii. 347. 
Cowl V. Varnum, ii. 91, 95. 
Cowles r. Kidder, i. GOI, 005, 600. 
Cowling v. Higginson, ii. 337, 350. 
Cowman i-. Hall, i. 213. 
Cowper V. Andrews, ii. 5. 

I'. Fletcher, i. 695. 
Cowpertliwaite v. Carbondale Bank, ii. 

617. 
Co.x v. Chamberlain, ii. 099. 

1-. Cook, i. 3!>0. 

r. Couch, iii. 4.34. 

V. Co.\, ii. 517. 

V. Donnelly, i. 429. 

V. Edwards, ii. 469. 

17. Fenwick, ii. 95. 

V. Freedley, iii. 438, 450. 

V. Hoose, ii. 509. 

V. Ilo-xie, ii. 159. 

V. .Tagger, i. 313. 

V. James, ii. 321 ; iii. 108, 420, 619. 

r. Lacey, iii. 107. 

V. Leviston, ii. 394, 306. 

V. Matthews, ii. 363. 

V. McBurney, i. 702. 

f. McMullin, i. 689. 

V. Palmer, iii. 259. 

i;. Shropshire, i. 443, 464. 
VOL. I. — d 



Cox V. \\\\U, iii. 272. 

V. Wheeler, ii. 227. 
Co.xe r. HigU-e, i. 302. 
Coyle c. Davis, ii. 135, 211. 
Cozens c. Crout, iii. 512. 

c. Long, i. 252. 
Craddock <. Kiddlesburger, i. 12. 
Craft f. Webster, ii. 103, 127, 133. 131. 
Crafts V. Crafts, i. 712; i'. 1^0, 2j0. 
238. 

V. Hibbard, iii. 420. 
Craig ('. Dimock, iii. 251. 

r. Hawkins, iii 432. 

V. Kline, ii. 3t)l. 

V. Leslie, i. 36. 

V. Pinson, iii. 291, 292, 882. 

V. Tap|)in, ii. 157, 158, 162; iii. 212. 

V. Walihall, i. 320. 
Craik v. Clark, ii. 181. 
Crain r. Fox, ii. 3<J0. 
Cram c. Ingalls, ii. 476. 
Cramer r. Benton, iii. 407. 
Crane v. Batten, i. 508. »10. 

V. Bonnell, ii. 53, 57. 03. 

V. Briglmm. i. 26, 20, 30. 

t;. Caldwell, ii. 90. 

V. Deming, ii. 157, 159. 

V. March, ii. 102, 125, 17Q 

V. Palmer, i. 217 ; ii. 93. 

V. Keeder, iii. 53, 292. 352. 

I'. Turner, ii. 118. 

V. Waggoner, i. 360, 403. 
Cranson v. Cranson, i. 227. 
Cranston i: (-'rane, ii. 73, 70, 81. 
Crary v. Goodman, iii. 150, 351. 
Crassen v. Swoveland, ii. 64 ; iii. 338. 
Crawford r. Chapman, i. 620, 528. 

V. Ldwards, ii. 220. 

V. Richeson, i. 309. 

V. Scovell, iii. 264. 

I'. Taylor, ii. 53. 

V. Thompson, ii. 11. 
Crawley i-. .Nlullins, i. 030. 

r. Price, i. 511. 

V. Kiggs, ii. 97. 
Creacraft r. Wions, i. 3.36. 
Crecelius r. Ilorst, i. 227. 
Creech r Crockett, i. 0:50, 031, 649. 
Creetl v. Lancaster Barik. ii. 515. 
Creekmur r. Creekmur, iii. 164. 
Creel r. Kirkham. i 605 
Cregier, Matter of, i. 270. 
Creighton c. Evans, ii. 393. 

V. Paine, iii. 231. 
Crenshaw v. Carpenter, i 334. 
Cresap r. Hutson, iii. 103. 
Cresinger r. Welch, i 486, 488; iii. 2'«, 

266. 
Cresson v. Miller, iii. 362. 

r. Stout, i. 28. 
Crest r. Jack. i. 7, 697 : iii. 82. 
Creveling r. Fritts, ii. 522, 623. 
Crews I-. Pendleton, i. 144. 

I,'. Thread^iiU li :.:J, 188. 



TABLE OF CASES CITED, 



Cribb V. Eofrers, ii. 467, 475. 
Crippen r. Heerniaiice, ii. 96. 

V. Morrison, i. 20; ii. 112. 

V. Morss, i. 688. 
Crips V. Grvsil, ii. 146. 
Crisfield i: Storr, ii. 592, 639. 
Crisp r. Crisp, ii. 592. 
Criswell i'. Altemus, iii. 153, 164. 
Crisweli's Appeal, ii. 654. 
Crittenden v. rairchild, ii. 710. 

V. Field, iii. 412. 

V. Johnson, i. 214. 

V. Rogers, ii. 272. 

V. Woodruff, i. 249; iii. 101. 
Croade v. Ingraham, i. 263, 314, 494. 
Crocker v. Higgins, ii. 547. 

V. Pierce, iii. 119. 

V. Thompson, ii. 199. 
Crockett v. Crockett, i. 187, 148, 152, 320. 

V. Maguire, iii. 338. 
Croft V. Bunster, ii. 110, 257. 

V. Lumley, i. 639. 

V. Powel, ii. 71, 74. 
Croghan v. Livingston, i. 728. 
Croraie v. Hoover, i. 32. 

r. Louisville Home Soc, iii. 557. 
Cromraelin v. Thiess, i. 539, 547, 635, 

636. 
Crompe v. Barrow, ii. 723, 724. 
Cromwel's case, ii. 27. 
Cromwell v. Pittsburg Bank, ii. 189. 

V. Tate, iii. 290. 

V. Winchester, i. 56. 
Cronin v. Hazeltine, ii. 135, 255, 280. 

V. Richardson, iii. 434. 
Crook V. Lunsford, i. 442. 

V. Vandevoort, iii. 277. 
Crooker v. Crooker, ii. 263. 

V. Frazier, ii. 170. 

r. Jewell, ii. 122. 
Crop V. Norton, ii. 513, 552. 
Crosby v. Bradbury, iii. 412, 424. 

V. Chase, i. 242; iii. 116. 

V. Loop, i. 549, 550, 551. 

V. Montgomery, iii. 464. 

V. Parker, iii. 417. 

V. Wadswortli, iii. 367. 
Cross, In re, i. 489. 

V. Carson, ii. 15, 20. 

V. Evarts, i. 442, 443. 

V. Hepner, ii. 47, 58. 

V. Lewis, i. 37 ; ii. 340, 343, 845, 362. 

V. Martin, iii. 128. 

V. Robinson, ii. 133. 

V. State Bank, iii. 255. 

V. Upson, i. 540. 
Cross' Appeal, ii. 514, 516. 
Crossley v. Higlitowler, ii. 332. 
Crossman v. Field, ii. 769. 
Crotty V. Collins, i. 142. 
Crouch V. Puryear, i. 151. 
Croup V. Morton, i. 419. 
Crow V. Mark, i. 695. 

V. Vance, ii. 97, 127. 



Crowell V. Beebe, iii. 91. 

V. Currier, ii. 220. 

V. St. Barnabas Hosp., ii. 208, 219, 
220, 225. 

V. Woodbury, i. 718. 
Crowley v. Wallace, iii. 328. 
Croxall V. Shererd, i. 102, 116 ; ii. 491, 
498, 531, 532, 669, 587, 595, 597; iii. 
99. 
Crozier's Appeal, i. 334. 
Cruger v. Halliday, ii. 552. 

V. McLaury, i. 508, 556 ; ii. 19, 301. 
Crummen v. Bennet, i. 441. 
Crump V. Morrell, i. 577. 

V. Norwood, i. 206, 639 ; ii. 746. 
Crusoe v. Bugby, i. 505, 511. 
Crutcher v. Taylor, ii. 510. 
Crutchfield v. Coke, ii. 277. 
Cubitt V Porter, ii. 386. 
Cudlip V. Kundall, i. 621. 
Cuffee t: Milk, i. 118. 
Culbertson v. Duly, iii. 18. 
Culbertson's Appeal, ii. 494. 
Culler V. Motzer, i. 691. 
CuUum V Branch Bank, ii. 195. 

V. Erwin, ii. 126, 128. 
CuUwick V. Swindell, i. 25. 
Culver V. Culver, i. 716. 

V. Rhodes, i. 690. 
Cumberland v. Codrington, ii. 207, 208, 
209. 

V. Graves, ii. 539. 
Cumming v. Gumming, ii. 212, 216. 
Cummings v. Barrett, i. 4; iii. 863. 
Cummins i'. Bulgin, iii. 406. 

V. Cassily, iii 255. 
Cunningham v. Gray, i. 355. 

V. Hawkins, ii. 113, 192. 

V. Uorton, i. 614, 637, 640. 

V. Houlton, i. 546, 614, 625, 637, 
640, 652. 

V. Knight, i. 230, 232, 257. 

V. McKindley, ii. 535, 536. 

V. Pattee, i. 492. 
Cunyngham v. Thurlow, ii. 696. 
Curl r. Lowell, i. 617, 652. 
Curie I'. Barrell, iii. 206. 
Curran v. Ruth, ii. 718. 
Currey v. Davis, i. 605. 
Currier v. Barker, i. 640, 647. 

V. Earl, i. 619, 623; iii. 102. 

V. Gale, i. 82 ; ii. 133, 168, 346 ; iii. 
156, 159, 178, 457. 

V. Parley, i. 643. 
Curriers' Co. v. Corbett, ii. 332. 
Curry v. Sims, ii. 763. 
Curshani i-. Newland, ii. 653. 
Curtin v. Patton, i. 488. 
Curtis i". Daniel, i. 19. 

V. Deering, iii. 510, 511. 

V. Galvin, i. 617, 656. 

V. Gardner, iii, 465. 

V. Hobart, i. 285. 

V. Keesler, ii. 334, 347. 



TABLE OF CASKS CITKD. 



li 



Curtis r. Lymnn, ii. 153. 

f. Muiuly, iii. oSH. 

r. N'inlitiii>;iilc, iii. r)12. 

V. Ki.ldli-. i. 7. in. 

r. Root, ii. OH. 170. 

f. Tyler, ii. 2\>o. 
Curlii>s c. Ay mull, ii. 323. 

r. Miller, i. 570. 
Cushinn /•. Aver, ii 21:', 215. 

r. ni.iki-."ii. 528. 5;1U, 531, 632, 534. 

I'. Ileiiry. ii. 57(5. 

t; Iluril, iii. 341. 

V. KeiifieM. i. (521. 
Cusliiniui r. Rinnelmril, iii. 483, 487. 

I'. I-utlier, ii. 4!>. 

r. Smitli. i. 2; iii. 225. 
Cusii-k r. Douglas, i. 355. 
Custis r. FitzlitiKli, i. 17. 
Cutlil)ert r. Kuliii, i. 558. 559. 

V. Lawton, ii. '-VA). 
Cutlibertson r. Irving, i. 485, 525, 594 ; 

iii. 101, 110. 
Cutler r. Diivcnpnrt, iii. 109. 

V. Haven, ii. 120. 

V. Tufts, iii. 425, 404. 470, 472. 

V. Tuttie, ii. 512. 
Cutter r. Camhridgc, ii. 309; iii. 1G2. 

c. Davenport, ii. 44, 119, 122. 

r. Ciriswold. iii. 357. 

r. Jones, ii. 201. 
Cutting c. Carter, i. 107. 

!■. Cutting, ii. G89. 

0. Rock wood, i. 086. 
Cutis V. York Mfg. Co., ii. 43 ; iii. 304, 
312. 



D. 

Dabncy v. Green, ii. 181. 

Dadnmn »•. lianison, ii. 175 ; iii. 350. 

DagijLtt '•. Uankin. ii. 44, 80, 150. 

V. Sliaw, iii. 450. 

V. Tracy, i. 7. 290. 

r. Willey, iii. W, 456. 
Dalil i\ Press, ii. 37. 
Dakin r. Alien, i. 023. 
l)all)y c. I'ullen. ii. 090. 
Dale r. Arnold, iii. 340. 

c. Lincoln, iii. 306. 

c. Roliinson, i. 3-32. 
Daley v. Coons, ii. 7i)3. 
Dallam v. Dallam, ii. 703, 764, 760. 
Dalton >•. Annus, ii. 3:«. 3.34, 3-30, 3:^8, 
340, 311, 345, 346, 362, 366, 
307. 

V. Dalton, i. 136, 150, 820. 

V. Laudalm, i. 550. 

V. Rust, iii. 427. 
Damainville >: Mnnn, i. 534. 
Damb v. Iloffman, i. 535. 
Dame r. Dame, i. 5. 8. 10, 26, 015. 

r. \Vin<.^ate, iii. 351. 
Damon v. Damon, iii. 663. 



Damrell >: Ilartf, ii. 590. 
Dana c. liinney, ii. 11*4 

V. Ja.kbon' St. Wliarf. iii. 446. 

r. Middlesex ISnnk, iii. 4*25. 

I'. New hall, iii. 2<M». 

r. Valentine, ii. 380; iii. 60. 

r Wentwortli, ii. 325, 327. 
Dand r. Kingscote, ii. 321 ; iii. 415, 465. 
Dane r. Kirkwall, i. 485. 
Danfortli v. Heattie, i. 444; iii. 864. 

r. .Murray, iii. 4'.>H. 

V. Sargent, i. 0:51, 0.30. 

V. Smitli, i. 287, ;i04, 810. 

r. Talbot, ii. 5t»9. 
Daniel <• Mc.NLinama, i. 270. 

r. North, ii. 341, .340. 

V. Wood, i. 35. 
Daniels c Bailey, iii. 369. 

('. Howe, ii. 103. 

V. Brown, i. 605, '610. 

V. Cheshire R. R. Co., iii. 438. 

r. Citizens' Sav. Inst., iii. 419. 

I'. Davison, iii. 338. 

V. l-'iscnlord, ii 09. 

V. Khlridge, ii. 532. 598, 611, 028. 

r. Henderson, ii. 274. 

V. Tend, i. 20. 010, 619; iii. 417. 

«'. I^)we, ii. 157. 
Danner r. Shisslcr, iii. 10. 
D'Aqiiin '•. .Vrmant, i. .')42. 
Darliie's (Countess of) case, ii. ''l'' ''■•■I 
Darby r. Anderson, i. 691. 

r. Darby, i. 702. 

V. Dixon, i. 370. 

V. Mayer, iii. 199. 
Darcus c Crump, ii. 782. 
Darcy v. Askwith. i. 150, 151 ; ii. 315, 

.321. 
D'Arcy r. Blake, i. 211, 212; ii. 542. 
Dare v. Heatbcotc, ii. 3.">0. 
Darley r. Darlev, iii. 574. 
Darling /•. Blanihard. ii. 592, 599. 

c. Chapman, ii. IH). 
Darst V. Bates, iii. 298. 
Dart r. Dart, iii. 105, 100, 117, 118,370. 

381. 
Dartmouth College >: Clnugh, i. 540. 
Dashiell v. Attorney-General, iii. 554, 

508. 
Dasliwood r. Rlytbway, ii. 105. 
Daubenspick r.'l'latt.ii. 180. 
Daughad.iy >: I'aine, ii. 92, 94; iii. 348 
Davenport i: Alston, i. 359, 369, 880. 

r. Davenport, iii. 490. 

V. Farrar, i. 214. 

V. Hicks, i. 420. 

V. Lamson, ii. 351. 

c. Turpin, ii. 262. 

r. Tyrrel, iii. 68. 
Davcv V. Diirrant, ii. 79. 

r. Turner, i 310 ; iii. 269. 
Davidson >■. Beattv, iii. 10.3. 

V. Cooper, iii.'2.'>4, 200. 

V. Cowan, ii. 150, 166. 



lii 



TABLE OF CASES CITED. 



Davidson v. Davidson, iii. 406. 

V. Gatacre, ii. 638. 

V. Kemper, ii. 533. 

V. Young, iii. 88. 
Davies, ^.r ixirfe, ii. 767. 

V. Husli, ii. 635, 037. 

V. Hnebner, ii. 395. 

V. Myers, i. 129. 

V. Sear, ii. 333. 

V. Speed, ii. 439, 664, 773, 775. 

V. Steele, ii. 763, 765, 768, 7G9. 
Davis V. Andrews, i. 357, 380, 412, 427, 
444,456; iii. 261. 

V. Bartiiolomew, i. 208,257. 

r. Bean, ii. 240, 256. 

V. Beclistein, ii. 258. 

i: Brandon, iii. 287. 

V. Broelvlebank, i. 141. 

V. Buffiim, i. 31, 466; ii. 163. 

V. Burrell, i. 655. 

V. Christian, i. 702; ii. 575. 

V. Clark, i. 706, 709. 

V. Coburn, ii. 535. 

V. Davis, iii. 85, 90. 

r. Dudlev, i. 489. 

V. Evton, i. 33, 142. 

V. Gdliam, i. 148. 

V. Handy, iii. 413. 

V. Hardin, ii. 532. 

V. Haj'den, iii. 370. 

V. Hemingway, ii. 267. 

V. Henson, i. 417. 

V. Hulett, ii. 217. 

V. Judd, iii. 287, 503. 

V. Ivelley, 1. 372, 435, 436, 450. 

V. Langsdale, ii. 275. 

V. Lassiter, ii. 232. 

V. Logan, i. 208. 

V. Londgreen, ii. 378, .394. 

V. Mason, i. 62, 173, 182, 184. 

V. ]\Iaynard, ii. 194. 

V. Mavor, &e., ii. 304. 

V. Miflett, i. 248. 

V. Morris, i. 547. 

V. Moss, i. 32. 

V. Murphy, i. 631. 

V. Nash, i. 621. 

V. Norton, ii. 625. 

V. O'Ferrall, i. 248. 

V. Ownsby, iii. 338. 

V. Rainsford, iii. 428, 459. 

V. Smith, i. .566. 

V. Speed, iii. 398. 

V. State, i. 416. 

V. Stoncstreet, ii. 4.5, 63, 65. 

V. Thompson, i. 141, 616. 617, 629. 

V. Townsend. iii. 95, 96, 131. 

V. Tvler, i. 591. 

V. Walker, i. 289, 298. 

V. Wetherell, i. 262, 263, 305 ; ii. 
182, 266, 271, 516. 

V. Wright, ii. 569. 
Davis's Appeal, i. 454. 
Davison v. Davison, i. 338. 



Davison v. Gent, i. 581. 

V. Jolionnot, iii. 229. 

V. Wilson, i. 655. 
Davol r. Howland, i. 254. 
Davoue r. Fanning, ii. 77, 85. 
Daw ley v. Avers, i. 368. 
Dawson v. Sliirlcv, i. 2-59; iii. 274. 

V. St. Paul's, 'iii. 108. 
Day, Ex parte, iii. 538. 

V. Adams, i. 412, 444; iii. 292, 409, 
506. 

V. Atlantic & G. W. R. R. Co., iii. 
336. 

V. Caton, ii. 387. 

V.Cochran, i. 182, 183, 186, 189: 
iii. 152. 

V. Griffith, iii. 315. 

V. Patterson, ii. 215. 

V. Roth, ii. 578. 

V. Swackharaer, i. 541. 

V. Walden, ii. 396. 

V. Watson, i. 564. 
Dayton v. Dayton, ii. 108. 

V. Donart, i, 420. 

V. Rice, ii. 177. 

V. Warren, iii. 526. 
Dean v. Comstock, i. 622. 

V. Erskine, iii. 454. 

V. Fuller, iii. 293. 

V. Lowell, iii. 449, 451. 

V. Mitchell, i. 213. 

V. (^'Meara, i. 713. 

V. Shelly, iii. 124, 517. 

V. Spinning, ii. 179. 
Deane v. Caldwell, i 525, 566, 583. 

V. Hutchinson, i. 6. 
Dearborn v. Dearborn, ii. 69, 70, 116. 

V. Eastman, iii. 264. 

)■. Tavlor, ii 224. 
Deardorff v. Foresman, iii. 308, 318, 

320. 
Deare v. Carr, ii. 170. 
Dearing v. Thomas, i. 385, 386, 431, 
447. 

V. Watkins, ii. 151. 
Dearlove r. Herrington, i. 658. 
Dearmond v. Dearmond, iii. 301, 304. 
Deaver v. Parker, ii. 170. 

V. Rice, i. 608. 
Debow V. Colfax, i. 134, 135. 

V. Titus, i. 12, 140. 
Decli's Appeal, i. 698. 
De Chaumont v. Forsj-the, iii. 501, 503. 
Decker v. Freeman, iii. 217. 

V. Leonard, ii. 46. 

i\ Livingston, i. 551, 699. 
Deckert, In re, i. 356. 
Decoster v. Wing, iii. 10. 
Decouche v. Saveticr, iii. 175. 
Deem v. Phillip.s, iii. 256. 
Deemarest v. Wynkoop, ii. 100. 
Deere v. Chapman, i. 356, 359, 370, 

381. 
Deerfield v. Arms, iii. 62, 64, 459. 



TABLE OF CASES CITED. 



liii 



Deerinp r. Ailiims, ii. 5.'5'.(. 
Deery r. Crny, iii. 128, 4i>0. 
De Foreat c. Hyriie, i. uoU. 

V. KuUon Ins. Co., ii. 240. 

V. Uiimsay, iii. >i'2H. 
De FraiuL* r. Ih- Krancc, ii. GO. 
lien V. iK't;, ii. 5-M. 
])c (irev r. Kielianlson, i. 183. 
Do lliivoii V. Lamleil, ii. 'J4'J. 
Dolioritv i: U'rijjlit, iii. 41W. 
Doi r. liabc'l, i. ;i<!-', 40(5. 
Dc'liiliay r. Clcmt'iit, ii. 108, 2o9. 

r. Mc('i)iiiu-ll, ii. 45. 
Delaire r. Kctiiaii, ii. 44, oo. 
De Lancey r. (iuiii)iip, i. 611, 599. 

I'. Cia Null, i. (»0;5. 
Delaney, Estate of, i. 307. 

V. Hostoii, ii. .'578. 

V. Fo.x, i. a^s, 5!t2, 593, 695, 690. 

V. Root, i. (KKt: iii. 8(10. 
Delano '•. Moiitanue, i. 025, 040, 052. 

V. Willie, ii. ;il, 1M7; iii. 2:12. 
Delaplaine r. llitclicock, iii. 88. 

r. Lewis, ii. 2ii5. 
Delasliniaii r. IJarry, i. 471. 
De l.aslmiutt r. Sell wood, ii. 202. 
De Liissns r. (in-enwood, ii. (JlO. 
Delaunay r. Hnrni'tf, iii. 218. 
Delaware, L., & W. U. 1{. Co. v. Sander- 
son, ii. 401. 
De la Warr i-. Miles, ii. 213, 392. 
Delay c. Vinal, i. :>o.s. 
Deliii, Trustees of, v. Youmans, ii. 

370. 
Dellinger i'. Twee<l, i. 424. 
Delnionico r. Guillaunie, i. 701, 703. 
Delony c. Ilutcliison, i. 700, 703, 705; 

ii. 149. 
Du fvuze V. Bradburv, ii. -W). 
Deniarest v. Willard, i. 531, 550, 651 ; 
ii. 142, 2'.I8. 

V. Wynkoop, ii. 14^1. 
Deniinn v. HuUitt, iii. 287. 

V. Colt, i. 71)2. 

i". Comings ii. 105, 198, 252. 
Deinutli '•. Aiuwe^i', ii. 394. 
Den r. Adani.s, i. (i;JO. 

V. Ashniore, i. 599. 

V. Blair, i. 04:5. 

V. Branson, i. 700. 

r. Brown, ii. 205. 

V. Cassells, iii. 455. 

V. Clark, iii. 201. 

V. Cox, ii. 757. 

r. Crawfonl, ii. 403, 477. 

r. Crawson, i. 510. 

V. Deniarest, i. 181 ; ii. 597. 

V. Dimon, ii. 122. i;}6. 139, 173. 

I". Drake, i. 043. 

I'. PMmonston, i. 622. 

V. Farlee, iii. :'.12. 

I'. Flora, iii. H>. 

r. (Justin, i. 592. 

V. Hampton, iii. 394. 



Den r. Hanks, ii. 451. 472; iii. 391,392, 

;;'.t;i, ;J95, :Mi. 

r. llardiiibernli. i. 343. 

V. Hay. iii. 2H). 

I'. llfrriuK'. iii. 455. 

.-. II. .well. i. 017.019. 

V. Hunt, iii. l;i8, 101. 102, 10;J, Ki 

v. Jidiiiiiun, i. 201, 470, 477. 

I'. Kinney, i 149. 

r. Kip, iii. 174. 

V. L.iwsliee, i. 350. 

V. LI. .yd, i. 001. 

r. .Manners, ii. 770; iii. 558. 

r. .Meliiiosli, i. 013. 

V. ( >'llanlon, iii 53. 

I'. I'artee, iii. 318. 

V. Post, i. 505, 511. 

V. I'uekey, ii. 031. 

V. Uieliman, iii. 3:iH. 341, 344. 

i;. Koake, ii. f.<K), 721. 

V. Sharp, iii. 155. 

r. Shearer, iii. 351. 

V. Siinjleton, iii. 225. 

r. Smith, i. 110. 

V. Spinning, ii. 134. 198. 258. 

V. Troutman, ii. 559, 500, 508. 

r. Tunis, ii. 251. 

V. Wliiltem..re. i. 343. 

r. Woo.l, iii. 5<i.'J. 

V. WriK'lit, ii. 108. 670. 
Denhy r. Moore, i. 534. 
Dendv r. (Jamble, i :5'>9. 

r. NiclK.l, i. 514, o:;9. 
Denhani r. Ilolinian. iii. 146. 148, 151. 
De Nieholls r. Saunders, i. 552. 
Denn v. Brewer, iii. 112. 

I'. Cartwri«_'ht, i. 471. 

V. Cornell, iii. 111. 

V. Gillot, i. 112. 

f. Kinjr. iii. loS. 112. 

V. Hooke. ii. 03H. (;(i5. 
Dennett v. Dennett, i. 117, 120. 190; ii. 
403. 474, 580, 030, 038, 057; 
iii. 20:;. 

('. II.)pkiiison, i. 11. 

V. I'ass, ii. ;!0l. 

V. I'enobseot Co., i. 02:1 
Denning v. Smith, ii. 81; iii. 231, 230. 

241. 
Dennis r. MeCagp, ii. 559. 

V. Wilson, ii. ;;4!t. 4f.3. 400. 
Dennison r. (Joehrinjj, ii. 503, 527. 

r. Heed. i. 511. 
Denny »•. Allen, ii. 575. 

V. Kettell, ii. 598, 010. 
Densmore Oil Co. r. Dcnsmore, i. G79. 
Denton »•. Clark, ii 710. 

r. .Nanny, i. 210. ;;o5 ; ii. 200. 

V. I'erry. iii. 31 1 . 

r. Strii'klaii.l. i <>:;5. 
Dentzel r. Wal.li.-. iii. 224, 274. 
De IVyster v. .Miihael, ii. I'l ; iii 202 
Deputy r. Stapletord. iii. 270, 3,'»y. 
Derby' (Karl of) r. Taylor, i. 541. 



liv 



TABLE OF CASES CITED. 



Derby Bank v. Landon, ii. 252. 

Deroin v. Jennings, ii. 54. 

Derry v. Derry, ii. 511. 

Derry Bank v. Webster, iii. 301, 309, 

315. 
Derush v. Brown, i. 213, 279. 
Descarlett v. Dennett, ii. 23, 24. 
Desilver, Estate of, i. 69, 485. 

Rr, iii. 263. 
Desloge v. Pearce, i. 668 ; ii. 404. 

V. 1 1 anger, ii. 63. 
Despard v. Walbridge, i. 593, 594 ; ii. 53. 
Despatch Line v. Bellamy Co., i. 23, 27. 
Detroit F. & M. Ins. Co., v. Reuz, ii. 

275. 
De Uprey v. De Uprey, i. 717. 
Deuster v. McCamus, ii. 211, 221. 
Devacht v. Newsani, i. 597. 
Devens v. Bower, ii. 254. 
Devin v. Hendershott, ii. 83, 108; iii. 
603, 506. 

V. Himer, iii. 255. 
Devinney v. Reynolds, iii. 295. 
Devore v. Sunderland, iii. 481, 483, 487. 
Devyr v. Schaeffer, iii. 159. 
Dewey v. Brown, i. 699. 

V. Dupuy, i. 535. 

V. McLain, iii. 219. 

V. Van Deusen, ii. 146, 268. 
De Witt V. Harvey, i. 718. 

V. Moulton, ii. 153 ; iii. 339. 

V. Pierson, i. 561, 563. 
De Wolf V. Hayden, iii. 517, 524. 

I.-. Murphy, i. 217. 

r. Pratt, iii. 247. 
Dexter v. Arnold, i. 690; ii. 147, 166, 
175, 182, 184, 189, 244. 

V. Gardner, iii. 550, 562. 

V. Hazen,i. 667. 

V Manley, i. 520, 565, 575. 

V. Phillips, i. 134. 

V. Prov. Aq. Co., ii. 377. 

V. Shepard, ii. 72. 

V. Strobach, i. 306. 
Dey !•. Dunham, ii. 47, 64. 
D'Eyncourt v. Gregory, i. 10, 2.3, 25. 
Deyo V. Bleaklj', i. 467. 
De Young v. Buchanan, i. 636. 
Dezell V. Odell, i. 589 ; iii. 77. 
Diament v. Lore, iii. 565. 
Dibble v. Rogers, iii. 96. 
Dick V. Ma wry. ii. 123, 127. 

V. Pitchford, ii. 533. 
Dickason r. Williams, ii.202, 204. 
Dicken v. Jolinson, iii. 261. 
Dickenson v. Chase, ii. 97. 
Dickenson's Appeal, iii. 17. 
Dickey v. McCullough, i. 503 ; ii. 13. 

r. Thompson, ii. 216. 
Dickinson v. Brown, iii. 209, 210. 

V. Davis, ii. 507. 

V. Goodspced, i. 6.36, 641. 

V. G. J. Canal Co., u. 374, 376, 
377. 



Dickinson v. Hoomes, ii. 296 ; iii. 483, 
487, 498, 501, 503. 

V. Mayor, i. 160. 

V. Williams, i. 695. 
Dickson v. Chorn, i. 436 ; ii. 226, 229, 
2.30. 

V. Todd, ii. 263. 

V. United States, iii. 548. 
Digges' case, ii. 726. 
Dighton V. Tomlinson, ii. 702. 
Dikes V. Miller, ii. 395 ; iii. 66, 68, 73, 

302, 309. 
D'lle Roupe v. Carradine, i. 420. 
Dillingham v. Brown, iii. 167, 238. 

V. Jenkins, i. 497. 

V. Roberts, iii. 448. 
Dillon V Brown, i. 492, 629, 700. 

V. Byrne, i. 431 ; ii. 494. 

V. Dillon, i. 128. 
Dil worth v. May field, i. 702, 704. 
Dimock v. Van Bergen, i. 636. 
Dimond v. Billingslea, i. 233. 
Dinehart v. Wilson, i. 605, 606, 607. 
Dingley v. BufEum, i. 32, 467, 546, 614. 

V. Dingley, ii 597, 599, 664. 
Dingman v. Kelly, i. 480. 
Dinsdale v. lies, i. 617. 
Dinsmore v. Racine & M. R. R., ii. 163. 
Dippers at Tunbridge Wells, i. 344. 
District v. Racine & M. R. R., ii. 163, 

164. 
District of Columbia v. Johnson, iii. 99. 
Ditchett V. S. D. R. R. Co., i. 570. 
Dix V. Atkyns, i. 471, 499. 

V. Van Wyck. ii. 183. 
Dixon V. Baty, i. 590. 

V. Clayville, ii. 128. 

V. Doe d. Lacoste, iii. 335, 844. 

V. Doe d. Lasselle, iii. 342. 

V. Hunter, ii. 1.34, 154. 

V. Lawson, i. 356. 

V. Niccolls, i. 550, 551, 606. 

V. Saville, i. 211. 
Doane v. Badger, i. 697 ; ii. 355, 388. 

V. Broad St. Assoc, iii. 420, 447. 

V. Doane, i. 129. 380, 413. 

V. WiUcutt, iii. 122, 123, 275, 423, 
446, 447. 
Dobbin v. Cruger, iii. 119. 
Dobbins v. Parker, ii. 195. 
Dnbell /•. Stevens, iii. 526. 
Dobson, Goods of, iii. 563. 

V. Land, ii. 240, 241, 248. 

?-. Racey, ii. 78. 
Dockham v. Parker, i. 608. 
Docking v. Dunham, ii. 763. 
Dockray v. Milliken, i. 255. 
Dodd V. Acklom, i. 582, 583. 

V. Holme, ii. 382. 

?•. Witt, iii. 4.32. 
Dodds V. Dodds, i. 360, 404. 
Dodge '•. Aycrigg, i. 257. 

V. Dodge, i. 330: iii. 32& 
j V. IloUinshcad, iii. 334 



TABLE OF CASES CITED. 



Iv 



Dodge r. Mcriinlock, i. f.f.'J, (]C3. 

i;. Nicliols, iii. 212, 454. 

V. I'opi', iii. '.»1. 

I'. Stevi-ns. ii. 622, 62^}. 

i;. Wiilk'v. iii. 422, 424. 
Dodson r. Hjill. ii. t54M. 
Dotlson's Apptal, i. ;J'JG. 

DiH.' il. Cox c. , i. (iJ2. 

Doe V. AhiTiiiitliy, iii. 204. 

V. Alk'H, i. 614. 

I'. Amev, i. ii'Mi. 

V. Arilior. i. 041. 

V. Aslil.uriiL'r, i. 479, 482, 

t'. Austin, i. 0'.l3. 

I', linker, i. (j.'}4. 

V. HiinckH, i. 614. 

r. Hiirniinl, iii. 161). 

V. Hartliriip, ii. ;j(»2, 6:18. 

V. Barton, i. 0(K) ; ii. 144, 170, 178 ; 
iii. i»'J. 

V. Hateiiian, i. 643. 

V. Batten, i. (339. 

V. Beanlsley, iii. 198, 199, 203, 338, 
3J2, 401. 

V. Beillbnl, iii. 242. 

V. Bell, i. 0:52, 047. 

V. Bc-iijamin, i. 47'J, 481, 482. 

V. Bevaii, i. 504. 

V. BijiKS, ii. 48M, 498. 

I'. Birch, i. 5()5, 610. 

V. Bird. i. 090; iii. 172. 

V. Blacker, iii. 2'JO, 297. 

r. Bliss, i. 603, 516. 

V. Bolton, ii. 497. 

f. Bond, i. 609. 

V. Bolts, i. 099. 

V. Bral)ant, ii. 622 

t: Britain, ii. 090, G97. 

i: Brown, i. 47.'), 000; iii. 160. 

«'. Bdrliofxton, i. 153. 

r. Btirn.<all, ii. 740. 

V. Burt, i. 18. 

V. Campbell, iii. 151, 150. 

V. Carlcton, ii. 743, 782. 

V. Carter, i. .')04. 

V. Challis. ii. (Jiti. 

r. Clianilierlaine, i. 022. 

i;. Ciiarlton, ii. 054. 

V. Clevi-land Bank. ii. 149. 

V. Collier, ii. 401, 4S8, 497. 

V. Collins, iii. 421. 

V. Collis, ii. 055; iii. 501. 

V. Considine. i. 89 ; ii. 537, 5.18, 585, 
688. 689, 692, 699, 015, 025, 
745, 754. 

V. Cooper, i. 003 ; ii. 631. 

V. Cox. i. 021. 

V. Craft, iii. 203. 

r. CraRo, i. 634. 

V. Crick, i. 040. 

i: Davics, i. 021 ; ii. 638, 640, 653. 

V. Day, i. 470. 

V. Deavors, iii. 234. 

I'. Dirry, i. 479. 



Doe «'. Dignowitty, iii. 201. 
t*. Dixon, i. 471. 
r. Donovan, i. 010. 
r. DouglaitK. iii. 22'.'. 
«-. Dovvdall, iii. 113, ilJ, l.;o. 
I'. Dunbar, i. 042. 
V. Durden, iii. 171. 
V. Kdjjar, iii. 174. 
r. Kdlin, ii. 640. 
r. Kdwurds, i. 694. 
r. Klli«, ii. 772. 
V. Krrinf^ton, i. 404; in. \2l. 
V. Kvaiih, i. 0(>*J. 
V. Kwart. ii. 502, 6.'.h .Mo Ti. 
e'. Eyre, ii. 700. 
V. Field, ii. 401. 50.' 
r. Fonnereau. ii. 049, 710, 7K 
r. Ford. ii. 02<». 
»•. Francis, i. 000. 
V. Fridge, iii. 270. 
V. Gatacre, i. 104. 
V. Giles, ii. 101. 
V. Glover, i. HO ; ii. 690. 
V. Goffe, ii. 052. 
V. Goldwin, i. 040. 
I', (lowcr, i. 002. 
I'. (Jrc^'orv, iii 148, 153. 
V. (Jwinnell, i. 290, 299. 
V. Hale,-*, ii. 142. 
r. llarbrough, iii. 162. 
r. Ilarvcv, ii. 062. 
V. llazelf, i. 04-3. 
r. Hilder. ii. 357. 
r. Hogg, i. 511. 
I'. Ilolnios, ii. 596. 
V. lloinfray, ii. 401, 489, 498. 
r. Howard, i. 041. 
V. Ilowdl, ii. 748; iii. 108. 
v. How land. i. 70<5. 
V. Himlics, i. 039, 041. 042. 
i: Hull, i. 048, 053; iii. 137. 
r. Huini)lirev9, i (i39. 
V. Hurd, iii. 3.50, 391. 
r. Ironmonger, ii. 050. 
V. Jackson, i. 040. 
I'. .lamicey, iii. 148, 152, 168. 
V. .Icfferson, iii. 154. 
r. .lepson. i. 509. 
I'. .loluison, i. 641. 
f. .Jones, i. 689. 
«-. Kcighflv, i. 042. 
V. Knight, iii. .304. 306. 
r. Lambly, i. 042. 
v. Laming, i. 611. 
r. Laniiis, iii. 18. 
V. Law ley. iii. 15.3. 
r. Lazenbv. i. 79. 
r. Ix-a. i. 040 ; ii. 028. 
V. Ix'wis, i. 52'.t. 
V. Lock, iii. 403. 470, 47L 
I'. Long. i. (502. 
V. Lucas, i. 012. 
r. I^nxton, i. 127. 
K. Lyile, ii. 780. 



:<•.» 



740 



Ivi 



TABLE OP CASES CITED. 



Doe V. Mace, ii. 142. 

V. Martin, ii. 477, 699 ; iii. 421. 

V. Masters, i. 513, 514. 

V. M'CulIough, iii. 95, 97. 

V. M'Keag, i. 617, 620, 622, 

V. McKilvain, iii. 197. 

V. McLoskey, ii. 123. 

V. Meakin, iii. 466. 

V. Miller, i. 622. 

V. Moffatt, i. 632. 

V. Moore, ii. 628, 629. 

V. Morgan, ii. 636, 739, 745. 

V. Morphett, i. 640, 642. 

V. Murrell, i. 590. 

V. Naylor, iii. 341. 

V. Nelson, iii. 250. 

V. Nichols, ii. 538, 540. 

V. Nowell, ii. 598. 

V. Nutt, i. 315. 

V. Oliver, ii. 641. 

V. Palmer, i. 638. 

V. Passinghani, ii. 476, 497. 

V. Paul, i. 513. 

V. Pearson, i. 86 ; ii. 9. 

V. Peck, i. 531. 

V. Pegge, ii. 177. 

V. Pendleton, ii. 106. 

V. Perryn, ii. 597, 603, 625, 687. 

V. Phillips, i. 511, 593; ii. 123. 

V. Porter, i. 629, 637. 

V. Prettyman, iii. 263, 342. 

V. Price, i. 617. 

V. Prigg, ii. 597, 599. 

V. Prosser, i. 691 ; ii. 536 ; iii. 130. 

V. Provoost, ii. 597, 599, 637. 

V. RafEan, i. 631. 

V. Reddin, iii. 340. 

V. Reed, ii. 334 ; iii. 344, 345. 

V. Rees, i. 589. 

V. Reynold, i. 599, 608. 

V. Richards, i. 91, 615. 

V. Ries, i. 479, 481. 

V. Rivers, i. 183. 

V. Robinson, i 127. 

V. Rock, i. 622. 

V. Rusham, iii. 358. 

V. Salkeld, ii. 443. 

V. Scott, iii. 559, 560. 

V. Scudamore, i. 186. 

V. Seaton, i. 485, 533, 594 ; iii. 99. 

V. Selby, ii. 587, 592, 626, 746, 747. 

V. Slieffield, iii. 559, 560. 

V. Sheppard, iii. 16. 

V. Shipphard, ii. 622. 

V. Simpson, i. 595. 

V. Smith, i. 493, 503, 642 ; iii. 339. 

V. Smyth, i. 598 ; iii. 579. 

I'. Snowdon, i. 641. 

V. Spence, i. 641. 

V. Stanion, i. 480. 

V. Stapleton, i. 641. 

V. Stevens, i. 509, 510. 

V. Stewart, iii. 524. 

V. Sturges, i. 490. 



Doe V. Suramersett, i. 639. 

V. Thomas, i. 617, 618. 

v. Tidhury, i. 589. 

V. Tiniin?, ii. 539. 

V. Tuiinfli, ii. 176. 

V. Turner, i. 141, 653 ; iii. 16. 

V. Underdovvn, ii. 599; iii. 559, 560. 

V. Vincent, ii. 712. 

V. Walker, i. 472. 474. 

V. Wandlass, i. 512. 

V. Watkins, i 641. 

V. Watts, i. 629, 643. 

V. Webb, ii. 605. 

V. Wells, i. 598, 602, 603. 

V. Were, i. 37. 

V. White, iii. 147, 159, 164. 

V. Whittingham, ii. 673. 

V. Wiggins, i. 593. 

V. Wilkinson, i. 642. 

V. Wing, iii. 148, 158. 

V. Wood, i. 622, 623, 637. 

V. Worsley, ii. 605. 

V. Wroot, ii. 573. 
Doebler's Appeal, i. 86 ; ii. 631, 652, 654. 

766. 
Doidge V. Bowers, i. 634. 
Dole V. Tluirlow, iii. 291. 
Dolf V. Bassett, i. 246. 302. 
Dolittle V. Eddy, i. 500, 571, 624, 632, 

661, 662. 
DoUman v. Harris, i. 436. 
DollofE r. Boston & M. R. R., ii. 333. 
Dolph V. Barney, iii. 346, 347. 
Donahue ik Thompson, iii. 152. 
Donald v. Hewitt, ii. 194. 
Donalds v. Plumb, ii. 561, 562. 
Donelson v. Polk, i. 534, 535. 
Donley v. Hays, ii. 126, 127, 129, 212. 
Donnell v. Clark, ii. 341. 

V. Harshe, i. 605. 

V. Thompson, iii. 479. 
Donnelly v. Donnelly, i. 222. 

V. Simonton, ii. 196. 
Donnels v. Edwards, i. 705; ii. 148. 
Donohne r. Chase, ii. 75, 77. 

V. McNichol, ii 761. 
Donohugli V. Helme, ii. 721. 
Donovan r. Pitcher, iii. 17. 

r. Vandenmark, ii. 577. 
Doody V. Pierce, ii. 188. 
Dooley r. Villalonga, i. 429. 

V. Wolcott, iii. 337. 
Doolittle r. Holton, iii. 222. 

V. Lewis, ii. 690, 706, 711. 

I'. Tice, iii. 151. 
Dorkray r. Noble, ii. 122. 
Dorn r. Beasley, i. 717. 

V. Dunham, i. 688. 

r. Howe, i. 368. 
Dorr V. Wainwright, ii. 555t 
Dorrance v. Jones, i. 555. 
Dorrell v. Johnson, i. 6.54. 
Dorrow i-. Kelly, ii. 152, 156. 
Dorsey v. Clarke, ii. 518. 



TABLE OF CASES CITED. 



Ivii 



Dorsey v. Eujjie, i. 14 J. 

V. MfFiirl.ind. i. ll"J. 431. 

V. Sinitli. i. lol, ;;•)'.». 
Doswell r. I)e Lii Liinza, hi. 140, 148. 
Doten r. Hair. ii. 2.'j5. 
Dollianl '-. Di-Dsoii, iii. 15-1. 
Doton r. Uiissoll. ii. lUl). 
Doty c. Uiir.lick, i. 093, G02, G68. 

r. (iorliaiu, i. 5. 
Doii;,'ni r. Kryer, iii. 12*2. 
Dougliertv r. Mnttiicws, i. 503. 

r. MilCluMii. ii. 11. 101.238. 

c. Kaixiall, ii. 111. I'JT. 
Douglas V. ("oiijjreve, ii. Col. 

r. SiiuiMway. i. 15. 
Douglass r. BislKip, ii. Is3. 

V. Hricc, ii. 50(>. 

V. Cline, ii 105, 110, 104. 

V. Dicksoi), i. 22S, 210. 

c. Durin. ii. ll'.l, 117. 

V. llopiiaiigli, iii. 511. 

i;. Scott, iii. lO'.l, 110, 112, 130. 

I'. Snow, iii. 21.'<. 
Douf^rcy r. Toppinjx, i. 204. 
Doiipe '•. Geiiin, i. 5(i9, 578. 
Ddvl' c. Tarr, ii. 5'J2. 
Dow I'. Clark, ii. 20"J. 

I'. Dow, i. l'J7. 

I', (joulil, iii. 274. 

V. Jewell, i. 71'.t ; ii. 515, 517, 635; 
iii. 175, 250, 261. 
Dowd '•. Tucker, ii. 520. 
Dowliug r. Ilcnning.s. ii. 3.39, 380, 387. 
Downer r. C'leiucnt, ii. 204. 

v. Vox, ii. 205. 

V. Smith, i. 721 ; iii. 381, 482. 

V. Wilson, ii. 137, 182. 
Downes r GrazeWrook, ii. 77, 78. 522, 

521, 501. 570. 
Downing c Marshall, ii. 579; iii. 544, 
550. 

1-. rahnateer. ii. 150, 258, 277. 

V. Wherrin. ii. 757. 
Doyle V. Cohurn. i. 302, 400, 421, 4.37. 
4.38 ; ii. 255. 

V. Howard, ii. 80. 

r. Lord, ii. 319, 303. 305; iii. 420. 
Doyley v. Attorney-General, ii. 558. 
Dozier i-. Greg'>rv, i. 154. 
Drake v. Kinsell," i. 400. 

V. Newton, i. 040. 

V. Ramsay, i. 4S0. 488 ; iii. 204, 205. 

r. Wells, i. 15, 071 ; iii. 371. 
Drane v. Gregory, i. 5'j3, 004, 679, 720. 

V. Gunter, ii. 552. 
Draper r. Baker, ii. 137. 

r. Jackson, i. 700. 
Drayton r. Grimke, ii. 717. 

i: Marshall, ii. 101. 200. 
Dreutzer v. Hell. i. 445 ; iii. 354. 
Drew r. Drew, i. S^lhi. 

V. Kimball, iii. Hi, 91. 

V. Hust, ii. 222 ; iii. 85. 

V. Smith, ii. 37, 275. 



Drew r. Swift, iii. 428, 431, 451. 

c. Towle. ii. li^BI. 

V. Wakefield, ii. 554, 500. 

i: Westtklil. ii. 315. 
l)re.xel /•. Miller, iii. 523. 
Driiian r. Niclioln, ii. 70. 
Drinkwater i,-. Drinkwater, i. 5-19. 
Drown r. Smilh, i. 147; ii.48.3; iii. 398 
Drum '•. Simpson, ii. 518. 
Drumtnond v. Uichards, ii. 51. 
Drury r. Drury, i. :;27, 3:J0, 331. 8.32. 

r. Foster, iii. 253. 

r. Triniont Imp. Co., ii. 218; iii 
3'.«». 
Drusado i-. Wilde, ii. 714. 
Drybntter r. Bartlioiomew. i. 20. 
Dryden i'. Jcpherson, iii. 411. 
Dubois r. Beaver, i. 14 ; ii. 380, 387. 

V. Hull, ii. 95. 
• r. Kelly, i. 5, 32, 407. 
Dubose r. Young, iii. ;W8. 
I)id>s r. Dubs, i. 174. 170, 187,214. 
Dubuque r. .Maloney. iii. 449. 
1 )ut)u<|iie Society r. Fleming, i. 7. 27, 30. 
Diibunue & Fac. H. U. r. Litchfield, iiL 

202. 
Ducker v. Belt, ii. 203. 
Duclaud i: Uousseau, ii. 112. 
Dudden v. Guardians, ii. 371. 370, 377. 
Dudley i-. Cadwell, ii. 101, 109, 133. 

V. Foote, i. 10. 

V. Lee, i. 044. 

r. Sumner, iii. 19-3, .^30. 
Duff r. Wilson, i. 594. 
DuUield V. Durtield, ii. 597. 
Duffy V. Calvert, ii. 559, 574. 

V. X. Y. & Harlem R. R., ii. 390; 
iii. 494, 502. 
Dufour r. I'ereira, iii. 537, 5^38. 
Dugan r. Gittings. iii. 218. 

r. HolHns, i. 722. 
Dugdale /•. Kobcrtson, ii. 384, 388. 
Dugger r Oglesby, iii. 491. 
Duhring c. Duliring, i. 210. 
Duiinuen r. Rich, ii. 317. 
Duke r. Balme, ii. 90. 

V. Hague, i. 717. 

V. Harper, i. 598, 602, 004, 619; iiL 
172. 
Dulanty v. I'ynchon, i. 451. 
Dummcrston r. Xewfanc. i. 313. 
Dumn c. Rothernu-I. i. 040. 
Dumpor's case. i. 50.3. 507 ; ii. 13. 
Duncan r. Dick. i. 199. 

V. Duncan, i. .335. 

I'. Forrer, i. 077. 081. 

V. Ilodgcs. iii. 252. 

r. Mailara. iii. 4.33. 

r. McNeill, ii. 193. 

V. Sylvester, i. OSS. 714. 
Duneh v. Kent, ii. .574. 
Duncomb r. Duncomb, i. 204, 207. 
Dundas >•. Bowlor. ii. 1.30. 

I . Hitchcock, i. 259 ; iii. 270. 272. 



Iviii 



TABLE OF CASES CITED. 



Dungan v. Am. Life Ins. Co., ii. 15L 
Dungey v. Angove, i. 556. 
Dunliaui c. Duiiliara, i. 406. 

V. Kirkpatrick, iii. 429, 474. 

V. Osboin, i. 204, 225, 269, 270. 

V. Townsend, i. 480, 623, 627. 

V. Williams, iii. 452. 
Dunklee v. Wilton R. R. Co., ii. 331, 

899 ; iii. 308. 
Dunkley v. Van Buren, ii. 251, 252. 
Dunlap V. BuUard, i. 545. 

V. Stetson, iii. 438. 
Dunn r. Games, iii. 281. 

V. Merri weather, iii. 242. 

V. Sargent, i. 201, 805; ii. 611. 

V. Tozer, i. 400, 429, 446. 
Dunn's Estate, ii. 717. 
Dunne v. Ferguson, i. 12. 

V. Trustees, &c., i. 622, 623. 
Dunning c. Finson, i. 627. « 

V. Leavitt, ii. 219. 

V. Ocean Bank, i. 35 ; ii. 261. 
Dunscomb v. Dunscomb, i. 174. 
Dunseth r. Bank of U. S., i. 300, 301. 
Dunsliee v. Grundj^, i. 593. 

V. Parmelee, ii. 195, 245. 
Dunton v. Woodbury, i. 451. 
Dunwoodie v. Reed, ii. 625, 627. 
Duppa V. Mayo, i. 512, 513, 515, 516 ; 

ii. 293. 
Dupuy V. Strong, i. 699. 
Durand v. Isaacks, ii. 110, 115. 
Durando r. Durando, i. 204. 

V. Wy man, i. 541. 
Durant v. Johnson, i. 686. 

V. Palmer, i. 571, 572. 

V. Ritcliie, i. 346 ; iii. 268. 
Durel V. Boisblanc, ii. 365. 
Durfee, Pet., i. 336. 
Durham v. Angier, i. 277, 312. 
Dussaume v. Burnett, iii. 339. 
Dustin V. Cowdry, i. 656, 658. 

V. Steele, i. 260. 
Dutton V. Gerrish, i. 575. 

V. Ives, ii. 204, 257. 

V. Tayler, iii. 411. 

V. Warschauer, ii. 110, 113. 
Duty V. Graham, ii. 112. 
Duval V. Bibb, ii. 93, 473. 

V. Marshall, ii. 514. 
D wight c. Cutler, i. 625. 
Dwight Co. V. Boston, ii. 367. 
Dwinell v. Perlev, ii. 120. 
Dye V. Mann, i. 374, 391, 438, 439, 452. 
Dyer v. Clark, i. 209, 700, 703. 

V. Depui, ii. 357. 

V. Gill, iii. 286. 

V. Rich, iii. 115. 

V. Sanford, i. 672 ; ii. 328, 357, 358, 
361, 362, 395, 397 ; iii. 330, 470, 
472, 474. 

V. Shurtk'ff, ii. 79, 570. 

i;. Toothaker, ii. 179. 

V. Wightman, i. 559, 565, 566, 569. 



Dyer's x\ppeal, ii. 548. 
Dyett 1-. Pendleton, i. 559, 561, 564. 
Dyke c. Rendall, i. 330, 331. 
Dyson v. Bradshaw, iii. 311, 323. 
V. SUeley, i. 374. 



E. 



Eadie v. Slimmon, iii. 276. 
Eagle Fire Ins. Co. r. Lent, ii. 270. 
Eagle Ins. Co. v. Pell, ii. 240. 
Earl V. De Hart, ii. 371, 372. 

V. Grim, iii. 565, 566. 

V. Xew Brunswick, ii. 709. 
Earle r. Earle, i. 259, 455 ; iii. 273. 

V. Fisk, iii. 388, 345. 

V. Washburn, ii. 562. 

V. Wood, iii. 560. 
Early v. Burtis, i. 10. 
Earp's Appeal, ii. 499, 500. 
Easter v. Little Miami, &c. R. R., ii. 298, 

320 ; iii. 128, 494. 
Easterbrooks v. Tillinghast, ii. 505. 
Easterlv v. Keney, ii. 532. 
Eastern R. R. v. Boston & M. R. R., 

ii. 309, 
Eastham v. Roundtree, ii. 507. 
East Haven v. Hemingway, iii 445. 
East Jersey Iron Co. r. Wright, iii. 402. 
Eastman v. Baker, ii. 766. 

V. Batchelder, ii. 69, 117. 

V. Foster, i. 6 ; ii. 225. 
East Tenn. & V. R. R. v. Love, iii. 224. 
Eaton V. Campbell, iii. 342. 

V. Eaton, ii. 546 ; iii. 263, 265. 

V. Evans, iii. 170. 

I'. Green, ii. 46, 47, 48, 53, 56, 63. 

V. Jaques, i. 498. 

V. Gimonds, i. 237, 240, 241, 242 ; 
ii. 182, 201. 204, 222, 245. 

V. Smith, iii. 429. 

V. Swanzea Water- Works, ii. 342. 

V. Whiting, ii. 65, 71, 80, 101, 124. 
145, 105. 
Eaton's Appeal, i. 492. 
Eaves i'. Estes, i. 7, 10, 26. 
Ebbert's Appeal, i. 704. 
Eberle v. Fisher, i. 266. 
Echols I'. Cheney, iii. 295. 
Eckhardt v. Schleeht, i. 456. 
Eckman v. Eckman, iii. 377, 380. 
Eddy V. Baldwin, ii. 508. 
Edge V. Strafford, i. 631 , 646. 

V. Worthington, ii. 87. 
Edgell V. Hagens, i. 435. 
Edgerly v. Edgerly, ii. 506. 
Edgerton v. Huff, i. 4 ; iii. 363. 

V. Jones, iii. 334. 

V. Page, i. 521, 559, 560, 563, 564. 

V. Young, ii. 125. 203. 272. 
Edminster v. Higgins. ii. 91. 
Edmondson i-. Welsh, ii. 79. 
Edrington v. Harper, ii. 45, 53, 63. 



TADLE OP CASES CITED. 



lix 



Eilrinu'ton v. Newlaml, ii. 112. 
Edsall V. Merrill, i. tJSt.'). 
Edboii i". Collmrii, i. (JUG. 

1-. MuiKsull, i. 71(5; ii. 330, 345, 390; 
iii. o)t, 17«. 
Eilwarils, AV i><ir(f, ii. 87. 

V. Hil.h, i. 270. 

r. lioiiaiiUDii, ii. !I7. 

V. Hrinkor, iii 313. 

t'. Davenport, iii. 121. 

V. Kilwanis, i. 425 ; ii. 617. 

V. Freeman, ii. 452. 

c. (iil)l)8, ii. 784. 

V. Hale, i. »!3t5, (]50, 051, 053. 

I-. ilaniiuonil, ii. 02U. 

r. Kearsev, i. 350. 

i;. N. Y. .^L II. U. U. Co., i. 520. 

V. rarkliurst, iii. 352. 

V. Pope, iii. 220. 

V. Uov8, iii. 351. 

V. SlJater, ii. 001, 0'J2, 0'J3, 0'J5. 

V. Smith, iii. 380. 

V. Trumhull, ii. 88. 

V. Varick, ii. 75;J, 758, 770. 
Effinjjer v. Lewis, i. 015; iii. 142. 
Egerton v. Brownlow, ii. 432, 528, 005, 

OO'J. 
Egiileston i-. N. Y., &c'. K. K. Co., i. 005. 
Elinnaii r. Mayer, iii. 154. 
Eiclielberger r. Harnitz, ii. 700. 
Eit'ert ads. Kee<l, iii. 105. 
Eister r. I'aul, i. 5',l2 
Elder c. Burrus, iii. 442. 

V. Derby, iii 512. 

I'. Jones, ii. 1'7. 

V. House, ii. 51, 62. 
Eldred-te r. Forrestal, i. 204. 

I'. I'ierce, i. 448. 
Eldrid^c i: Kl.lri.lK'e. ii. 697. 
Elfe I'. Cole, ii. 110. 
Eli I'. Griilley, i. 435. 
Elins I'. Veriliifro, i. 385. 
Eliot V. Carter, iii. 421. 

V. Eliot, iii. 5.39. 
Elkins r. Kdwanis, ii. 101, 195. 
Ellicott r. Ellicott, iii. 15. 

I'. Mosier, i. 288, 2:'0, 201. 

v. Pearl, i. 04; iii 101, 104. 

V. Welcii, i. 217; ii. 93. 
Elliot V. Fitcliburjr U. U., ii. 308. 

I'. Nichols, i. 709. 

V. Patton, ii. 181, 188. 

r. Sleeper, ii. 194 ; iii. 282, 280, 291. 
EUiotsoii V. Feetliam. ii. .3h<». 
Elliott V. Aiken, i. 521, 637, 604, 670, 
670, 583. 

i;. Frakes, iii. 340 

V. Ma.xwell. ii. 64, 03. 

V. Pearce, iii. 200. 

r. Hhett, ii. 330. 3.)4, 356, 307. 

V. Smith, i. 130, 589, 503, 694. 

r. Stone, i. 600, 610, 621, 030, 031, 
032, 649. 

V. Turner, ii. 23. 



Elliott r. Wood, ii. 77. 78, 248. 

Elliit I'. Hoston, II , & Erie U. U., ii. 710. 

V. Carev, iii. 442. 

r. Didd'v. i. 205. 

1-. Drake, ii. 202, 271. 

V. Duncan, ii. 370. 

V. Ellis, i. 291. 

I'. KHse.x M. Hri<lge, iii. 500. 

V. Fibher, ii. 5^»8. 

I'. IIusKey, ii. 100. 

V. Kinyoii, ii. 49. 

I'. .Manchester Carr. Co., li. ;i32. 

r. .Martin, ii. 271. 

c. Murray, iii. 170. 

f. Pane, iii. 18. 678. 

V. Paitie, i. 017. 020, 029, 031, 030. 

I'. Selby. iii. 671. 

V. Tone. ii. 304. 

r. Welch, i. 558; iii. .iwu, .,ir^ 
Klli.son )•. Daniels, li. U)l, lUO. 12;], 173 

V. Pecare, ii. 152. 

r. Wilson, iii. 335. 
Ellston r. Kennicott, iii. 108. 
I'^llsworth i: Cook, i. 182. 

r. Lockwood, ii. 79, 225, 250. 
Elinendorf v. Carmichael, iii. 202. 

V. Lockwood, i, 217. 

i\ Taylor, ii. 180. 
Elmore '•. Elmore, i. 308. 

V. Marks, iii. 301. 
Elms V Uandall. i. 595. 
lOlsbcrry '•. Poykin, iii. li>4. 
Else V. Osborn, ii. 458. 
Elsey V. McDaniel, iii. 202. 

V. Metcalt, iii. ;i03, 310, 311. 
Elston c. Hohinson, i. 3tJ0, 372, 419. 
Elwell c. Ikirnside. i. 694. 

V. C.ran<l St. U. K., ii. 104. 

I'. Hinckley, iii. 175. 

V. Shaw, i. 470 ; iii. 288, 294, 295. 
Elwes V. Maw, i. 30. 
Elwood V. Klock, i. 201,200,271,315; 

iii. 272. 
Elworthy r. Santonl. i. 477. 
Ely c. Eastwood, i. 43.S. 

'•• Ely, ii. 98, 108, 258; iii. 250. 

V. Mat'uire, ii. 10*5. 

r Scofield, ii. 199. 

r. Wilco.v. iii. .33.5, 3.37, 3.39. 
Emans i-. Turnbiill. iii. 59, 00, 05, 448. 
Emanuel v. Hunt. ii. 123. 
Emhree c. Ellis, i. 240, 248, 202. 
I'.mbry .•. Owen, i. 74 ; ii. ;5<J8, 309,393 
Emerick r. Kohler, iii. 454. 
Emerson r. Eur. & N. A.-K. R., ii. 104. 

r. F'isk. i. (505. 

I-. Harris, i. 23:3. 

c. Mooney. iii. 403, 40& 

V. Murray, ii. 68. 

r. Simpson, ii. 8. 

V. Spicer, i. 490. 

r. Taylor, iii. 450. 

r. Thompson, i. 143. 

V. White, iii. 19. 



Ix 



TABLE OP CASES CITED. 



Emerson v. Wiley, ii. 356, 396 ; iii. 108. 
Emery, Re, 502. 

i\ Barnett, i. 250. 

V. Chase, ii. 450, 470, 483; iii. 387. 
Emigrant Sav. Bank v. Goldman, ii. 270. 
Emison v. Risque, ii. 91. 
Emmerson ;•. Heelis, i. 11 ; iii. 367. 
Eminc'S v. Feeley, i. 557, 617, 622, 651. 
Emmons v. Murray, iii. 265, 337. 

V. Scudder, i. 651. 
Enfield v. Day, iii. 203. 

V. Permit, iii. 203, 217. 
Engels V. McKinley, i. 554. 
England v. Slade, i. 594. 
Englisli V. Jolmson, ii. 407. 

V. Key, i. 527, 548. 

V. Lane, ii. 45, 52, 63. 

V. Law, ii. 510. 

V. Wright, i. 248. 
Ennis v. Harmonv Ins. Co., ii. 244. 
Eno V. Del Vecchio, ii. 327, 385, 386. 
Ensign v. Colbura, ii. 141. 
Ensley v. Baiantine, ii. 513. 
Ensminger v. People, iii. 441. 
Enston V. Friday, ii. 195. 
Ensworth v. Griffiths, ii. 62. 
Episcopal City Mission v. Appleton, 

ii. 3. 
Epley V. Witlierow, iii. 82. 
Epping V. Devanny, i. 558. 
Equitable L. Ass. Soc. v. Bostwick, ii. 

217. 
Equitable Tr. Co. ?'. Fisher, ii. 85. 
Erb V. Brown, ii. 358, 396, 397 ; iii. 86. 
Erickson v. Mich. Land & Ir. Co., ii. 384. 

V. Rafferty, ii. 108. 

V. Willard, ii. 550. 
Erskine v. Townsend, ii. 36, 38, 46, 47, 

105, 109, 117, 166, 168, 180, 271. 
Ervine's Appeal, iii. 227. 
Erwin v. Helm. iii. 236. 

r. Olmsted, i. 692, 693 ; iii. 163. 

V. Shuey, ii. 48, 118. 
Eskridge v. McClure, ii. 97, 98. 
Esling V. Williams, ii. .347. 
Essex V. Essex, i. 702. 
Essex Co. V. Durant, ii. 566. 
Esson i\ McMasters, iii. 441. 
Estabrook i\ Hapgood, i. 131, 309. 

V. Moulton, ii. 258. 

V. Smith, iii. 495, 507, 509, 511, 521, 
529. 
Estep V. Estep, i. 521. 

V. Hutchman, iii. 229, 230. 
Estes V. Cook, iii. 143. 
Esty V. Baker, i. 017, 631, 652; iii. 420, 
422, 431. 

V. Clark, iii. 559. 

V. Currier, iii. 413, 420, 465. 
Eulrich v. Richter, ii. 372. 
Euper V. Atkins, i. 367, 446. 
Eureka Co. v. Edwards, iii. 264. 
Eustace v. Scawen, i. 681. 
Evans v. Brittain, i. 686. 



Evans v. Elliot, i. 540, 596 ; ii. 144. 

V. Evans, i. 38, 179, 273, 274, 277. 

V. Gale, iii. 276. 

V. Gibbs, iii. 324. 

V. Goodlet, ii. 95. 

V. Huffman, ii. 191. 

V. Inglehart, i. 139. 

V. Kimball, ii. 204. 

V. King, ii. 528, 539, 547. 

V. Marriken, ii. 107. 

V. Norris, ii. 69. 

V. Pierson, i. 335. 

V. Reed, i. 650. 

V. Roberts, i. 11; iii. 364, 367. 

V. Rosser, ii. 10. 

V. Smith, iii. 537. 

V. Summerlin, iii. 262. 

V. Thomas, ii. 139. 

V. Vaughn, i. 468. 

I'. Webb, i. 316, 336. 
Evans' Appeal, iii. 572. 
Evansville r. Page, iii. 428. 
Eveleth v. Crouch, iii. 111. 
Everest ?;. Ferris, ii. 123. 
Everett v. Everett, ii. 514. 

V. Whitfield, iii. 178. 
Everman v. Robb, ii 163. 
Evers v. Challis, ii. 746. 762, 791. 
Everts v. Agnes, iii. 321, 323. 

V. Beach, i. 695. 
Evertsen v. Sawyer, i. 595. 
Evertson v. Booth, ii. 229, 231. 
Ewart V. Cockrane, ii. 332. 

?'. Walling, ii. 46. 
Ewer V. Hobbs,i. 717; ii. 106, 112,139. 
Ewing V. Burnet, i. 63; iii. 139, 149, 
150, 162, 421. 

V. Savary, i. 682. 
Exchange Bank v. Rice, ii. 219. 
Exeter New Par. v. Odiorne, ii. 498. 
Exton V. Greaves, ii. 51. 239. 
Exum V. Canty, iii. 379. 
Eyler v. Crabbs, ii. 94. 
Eyre v. Burmester, ii. 196. 
Eysaraan v. Eysaman, ii. 453, 467, 468, 

481, 483 ; iii. 385. 
Eyster v. Hatheway, i. 418 ; iii. 347. 



Fabri v. Bryan, i. 658. 
Factors' Ins. Co. v. Murpliy, ii. 203. 
Fagan v. Cadmus, iii. 492. 
Falirney v. Holsinger, i. 105. 
Failing v. Schenck, i. 467. 
Fair v. Stevenot, iii. 337. 
Fairbanks v. Metcalf, iii. 299, 317, 318, 
321. 

V. Williamson, iii. 113. 
Faircliild v. Chasteileux, i. 343, 344, 706. 

V. Fairchild, i. 701, 703. 

V. Rassdall, ii. 54. 
Fairfax v. Montague, ii. 190. 



TABLE OF CASES CITED. 



Ixl 



FairfieM r MfArtliur. ii. 184. 
Fiiiris f. WnlkcT, i. 'J7. 
Fiiirley c. FauU-y, iii. 102, 384. 
Fairman r. Bavin, ii. 522, W9. 

V. neal, iii. lt)5. 
Fairtitk' r. (lillaTt, iii. IOC,. 
Falis /•. Coinray Ins. Co , ii. G5. 
Falkner «■. Ik'ers, i. 6!I2. 
Fail r. Sutter County, ii. 805, 307, 810. 
Falls v. Keis, iii. 451. 
Falis Village W. V. Co. v. Tibbctts, iii. 

451. 
F:il mouth I' Thomas, i. 11. 
F.mclier r. De .MoiUc'.:rt.', iii. 427. 
Fani-y v. Si-ott, iii 4(JJ. 
Faiiiiinfj i\ Kerr, ii. 71, 73. 
Faiisliaw's cast-, iii. 2-<l. 
Farewell/-. Dickenson, i. 678. 
Farley v. Craij;, i. 548 ; ii. 2'JO. 292, 293, 
302. 

V. Parker, i. 486. 

V. Tlioin|i9on, i. 548, 552. 

V. Whiteliead. i. 429. 
Farmer v. Hosiers, i. 579. 

r. Samuels, i. 721. 

V. Simpson, i. 382, 426. 
Fanners' IJank r. Bronson, ii. 153, 170. 
F.irniers' Fire Ins. Co. c. Edwards, ii. 

133, 180. 
Fanners' Loan, &c. Co. v. Carey, ii 164. 

I'. Hendriekson, i. 17 ; ii 104. 
Farmers' & Mech. Bank v. Drury, iii. 
302. 

V. Greifory, i. 710. 
Farnswortli «•. Boston, ii. 172. 

V. Taylor, iii. 108, 459. 
Farnum '•. Metcalf, ii. 181. 

V. Peterson, iii. .349, 351. 

r. Piatt, ii. 353. 
Farquliarson v. Eichelberger, ii. 539 ; 

iii. 399. 
Farr i-. Smith, i. 694. 
Farrall v. llilditcli, iii. 461. 
Farrand r. Marshall, ii 381. 
Farrant c. Lovel, ii 141. 
Farrar r. ChaufTetete, i. 27. 

V. Cooper, iii. 103. 

V. Farrar, iii. 320. 

V. Fessenden, iii. 147, 162, 164, 342. 

V. McCue, ii. 710. 

I'. Staekpole, i. 10, 24; iii 415. 
Farrell r. Bean, ii 53. 

I'. Parlier, ii. 248. 

i". Richards, ii. .307. 
Farrington r. Barr, ii. 455, 603, 611, 
540; iii. 401. 

V. Kimball, i 525. 
Farrow v. Edmundson, i. 610. 
Farson r. Goodale, i. 031. 630, 644. 
Farwell ••. Cotting, i. 237,242,262, 808; 
ii. 200. 

V. Murphv, ii. 261. 

V. Rogers, iii. 143, 349. 

V. Warren, i. 058. 



Fash I'. Blake, iii. .381. 

Fau^'ht ('. Holway, iii. 162. 

Faulkner v. Bruckenbruugh, ii. 107, 

109, 13.3. 
Faure r. NVinans, ii. 240. 
Favil »•. Koberis, iii. 87. 
Fawcctis r. Kininuy, iii. 326. 
Faxun r. Folvey, ii 5^52 ; iii. 363. 

V. Wallace, iii. 240. 
Fay, Petitir)ner, ii. 805. 

r. Brewer, i. 156; ii. 105, 130, 170. 

V. Cheney, i. 237 ; ii. 87, 109, 121, 
133, 140. 

r. Fay, li 502. 

r. Ilolloran, i. 578. 

i;. Muzzey, i. 20, 27; iii. 417. 

V. Richardson, iii. .300. 

i; S^dvester. ii 597. 

V. Tai't, ii. 49!». 

V. Valentine, ii. 25.3. 
Fears o. Brooks, i. 311, 342. 

r. Lynch, ii. 570. 
Feather v. Strohoecker, i. 723. 
Feely v. Buckley, i. 710. 
Feger r. Keefcr, iii. 222. 
Fchley v. Barr, i. 425. 
Felch V. Taylor, i 534, 554; ii. 86, 108, 

169, 294 ; iii. .Wj. 
Fekler r. Murphv, ii. 265. 
Fell r. Price, iii. 222. 

r. Young, iii. 342. 
Fellows r. .Vlleii, iii. 575. 

r. Lee, i 08. 
Fellows' .\pi)eal, ii. 493. 
Felton v. Hamilton, iii. 281. 

V. Simpson, ii. .3-39, .342. * 

f. Smith, iii. 248. 
Fenby ;•. .Johnson, ii. 605. 
Fenn v. Hohne, iii. 208. 

i". Smart, i. 507. 
Fenner v. Duplock, i. 000. 
Fentiman r. Smith, i. 664, 666. 
Fenton i: Lord, ii. 219. 

V. Torrey, ii. 72. 
Fenwick r. Floyd, iii. 423. 

V. Gill, iii. 74. 

V. Mitforth, ii. 458. 
Feoffees of Grammar School i'. An- 
drews, iii. 217. 
Ferguson »•. 'Bell, iii. 266. 

V. Hedges, iii. 648, 659, 600. 

V. Kimball, ii. 212. 

V. Kumler, i. 439. 

r. Mason, iii. .385. 

r. Tweedy, i. 183. 
Fernald r. Linscott, ii. 169. 
Ferrall c. Kent, i. 605. 
Ferrel r. Woodward, ii. 300, 307. 
Ferribre r. New (^rlcnns. iii. 06. 
Ferrin v. Errol, ii. 524. •")25. 

V. Kenney. i. 610. rtl8. 
Ferris r. Brown, ii. 3:<S ; iii. 67. 

i;. Coover, iii. 86, 238, 481, 45:>. 
469. 



Ixii 



TABLE OF CASES CITED. 



Ferris v. Crawford, il. 51, 217, 220. 

V. Ferris, ii. 67. 

V. Irving, iii. 294. 
Ferry v. Laible, ii. 708. 
Ferson v. Dodge, ii. 780. 
Fessler's Appeal, ii. 54. 
Fetrow v. Merriweatlier, iii. 351, 394. 
Fetters v. Humplireys, ii. 331. 
Field V. Gooding, ii. 71. • 

V. Herrick, i. 475 ; iii. 500. 

V. Howell, i. 469. 

r. Jackson, i. 167. 

V. Mills, i. 505. 

V. Seabury, iii. 210. 

V. Snell, iii. 506. 

I'. Stagg, iii. 255. 

V. Swan, ii. 144. 
Fifield V. Sperry, ii. 102, 269. 
Fifty Associates v. Grace, i. 525. 

I'. Rowland, i. 510, 513, 631, 656 ; 
ii. 26, 28. 
Fightmaster v. Beasly, i. 694. 
Filbert v. Hoff, i. 692. 
Fillebrown v. Hoar, i. 564. 
Filliter r. Pliippard, i. 156. 
Fillman v. Divers, ii. 510, 525. 
Finch V. Brown, ii. 246. 

V. Finch, ii. 517. 

V. Houghton, ii. 259. 

V. Winchelsea, ii. 559. 
Finch's (Sir Moyle) case, i. 652; iii. 

279, 281. 
Findlay v. Smith, i. 149, 151. 
Finlay v. King, ii. 7, 12. 
Finley v. Dietrick, i. 460. 

V. McConnell, i. 418, 4-34. 

V. Simpson, i. 518; ii. 293, 299; iii. 
331. 

V. U. S. Bank, ii. 261. 
Finn i'. Sleight, i. 250. 
Finucan v. Kendig, iii. 406. 
Fiquet v. Allison, i. 605. 
Fireman's Ins. Co. v. McMillan, iii. 

317. 
Firestone v. Firestone, i. 228. 
First Nat. Ins. Co. v. Salisbury, ii. 80, 

105. 
First Parisli of Sutton v. Cole, i. 81 ; ii. 

4.34. 
Fish V. Coster, ii. 718. 

V. Dodge, i. 571. 

". Fish, i. 216. 
Fishar v. Prosser, i. 698, 654; iii. 155, 

172. 
Fishback v. Lane, i. 449. 
Fisher v. Beckworth, iii. 300, 305. 

V. Deering, i. 527, 548. 

V. Dewerson, i. 711, 712, 714, 715. 

t;. Fields, i. 89; ii. 488, 687, 649. 

V. Grimes, i. 203. 

V. Hall, iii. 299, 300. 

V. Johnson, ii. 93, 97, 

V. Meister, i. 438. 

V. Millikin, i. 565. 



Fisher v. Morgan, i. 292, 293. 

V. Mossman, ii. 193, 195; iii. 85. 

V. Otis, ii. 127, 1.33, 25". 

V. Provin, i. 700, 710. 

V. Smith, ii. 456; iii. 450, 451, 452 

r. Thirkell, i. 521, 570. 
Fisliwick V. Sewell, ii. 535. 
Fisk V. Eastman, i. 204. 

V. Fisk, ii. 100, 148. 

V. Stubbs, iii. 276. 
Fiske V. Fiske, ii. 70. 

V. Tolman, i. 231 ; ii. 117, 218. 
Fitch V. Baldwin, iii. 102, 489. 

V. Brock, iii. 366. 

V. Bunch, iii. 320. 

V. Cotheal, ii. 137. 

V. Fitch, iii 102. 

V. Johnson, ii. 300 ; iii. 494. 
Fitchburg Cotton Co. v. Melven, 1. 133, 

552, 557; ii. 142, 173. 
Fite i\ Doe d. Bingham, iii. 329. 
Fithian v. Monks, ii. 117, 220, 260. 
Fitton r. Hamilton City, i. 628. 
Fitzgerald v. Barker, ii. 219, 220. 

r. Beebe, i. 595; ii. 107. 

i\ Forristal, ii. 249. 

V. Reed, i. 485. 

V. Urton, ii. 405. 
Fitzhugh V. Barnard, iii. 344, 348. 

V. Croghan, iii. 291, 479, 483, 488. 
Fitzpatrick v. Fitzgerald, ii. 566, 573. 
Flagg i: Bean, i. 190. 

V. Eames, iii. 466. 

V. Flagg, ii. 45; iii. 225. 

v. Mann, i. 721 ; ii. 46, 47, 50, 61, 
53, 60, 61, 63; iii. 101, 107. 

V. Thurber, ii. 220. 

V. Thurston, iii. 433, 4.34. 
Flanagan v. Hutchinson, ii. 219. 

V. Philadelphia, iii. 442. 
Flanders v. Lamphear, ii. 69, 70, 116. 
Fleetbush i-. Avenue, iii. 242. 
Fleetwood's & Aston's cases, ii. 212. 
Fleming v. Buchanan, ii. 689. 

V. Gooding, i. 592. 

V. Griswold, iii. 178. 

V. Parry, ii. 199. 
Flemister v. Phillips, i. 386. 
Fletcher v. Ashburner, i. 35, 173. 

V. Cary, ii. 253, 254, 2.55. 

V. Chase, ii. 182, 204, 227. 

V. Coleman, iii. 275. 

V. Holmes, ii. 110; iii. 81. 

V Mansur, iii. 260, 280, 299. 

V. McFarlane, i. 535, 591. 

V. McHale, ii. 605. 

V. Peck, iii. 198, 203, 205. 

V. Phelps, iii. 443. 

V. Smith, ii. 368. 

V. State Bank, i. 409 ; iii. 491. 
Flight V. Thomas, ii. 343. 
Flinn v. McKinley, i. 690. 
Flint V. Sheldon, ii. 47, 51, 53 

V. Steadman, ii. 654. 



TAULE OF CASES CITED. 



Ixiii 



Flintlioiii'i* Appeal, ii. 783. 
KIdoiI r. Floml, i. (i'^iG, 662. 
Flora (• t'arltiaii, ii. .'Ml. 
Florciico r. llopkiii!*, i. 71t>. 
F'lori'iitiiK' I'. HartDii, iii. 228. 
Flower v. Klwood, ii. 1211, IU4. 

«;. Laiu'f, ii. 220. 
Floyd V. Floy.l, i. 013. 

r. Miiiisi'V, iii 153. 

V. MnHii-i". i. 101, 110. 460. 
Flover r LuviiiKtin), li. .'il, 
Fluck c. Kiplogic, ii. 100. 
Flynii v. Trask, i. 537. 
Flyiit v. Arnokl. iii. 338, 344, 346, 348, 
3t)0. 

I', lliihhard, ii. 507. 
Fobes V Siiattiick, i. 139. 
Fogarty r. Fiiilay, iii. 340. 

V. S.iwyer, ii. 77, 113. 
Fogg V. Clark, iii. 317, 503. 

I'. Fogji, i. 3"J3. 
Foley V. Cowgill, iii. 317. 

r. Howard, iii. 310. 

1-. Hose, ii. 121), 128. 

I'. Wvetli, ii. 382. 
Folger r.'Mitciiell, i. 719. 
Folk l: Varii, iii. 310, 402. 
Follansbe r. Kilbretli, ii. 570. 
Folly I'. Vuniuvl, iii. 302. 
Foisoni V. Carii, i. 362, 375, 407, 422, 

452. 
Folt3 I'. Hnntlev, i. 558. 
Fonda r. Borst," ii. 321, 519. 

V. Jones, ii. 05. 

V. SaK'e, ii. 15, 18; iii. 136, 302, 
310,311, 320. 
Fonnercau r. F'onnereau, ii. 747. 
Fontain v. Ravenel, iii. 551, 557. 
Foos r. Scarf, ii 712, 714, 721. 
Foose v. Wliitteinore, ii. 551. 
Foot V. Dickinson, i. 159. 

V. New Haven & Northampton Co., 
i. 603, 666, 070, 672. 
Foote V. Burnet, iii. 478, 481, 491. 

I'. Cincinnati, i. 658. 

V. Colvin, i. 142, 627; ii. 624, 532; 
iii. 416. 
Forbes v. Hall, iii. 209. 

f. MoEfat, ii. 204, 662. 

V. Smiley, i. 028. 

V. Smitli, i. 174. 
Forbush i-. Lombard, iii. 412. 
Forcey's Appeal, ii. 499. 
Ford V. Cobb, i. 10, 31. 

V. Erskine, i. 219. 

V. Flint, i. «8 ; ii. 663; iii. 102, 313, 
468. 

r. Ford, iii. 572. 

V. James, iii. 306, 311. 

V. Olden, ii. 60. 

r. Pbilpot, ii. 239. 

V. Smitli, ii. 91. 

V. Walsworth, iii. 501, 603. 

V. Whitlock, i. 007 ; iii. 67. 



Ford r. Wil.Hon. iii. 110, 102, 170. 
Foreman c. Foreman, i. 35. 
Forrest v. Forre-st, i 321. 

r. Tramnieli, i. 215. 
Forbhaw r. Wel-by, ii. 493. 
Forster c. llale, ii. 547, 648. 
Forsytiie v. liallance, iii. 2U0. 

V. I'reer, i. 429. 

V. Price, i. 143. 
Fort V. Murch, ii 121, 165. 
Fort I'iaih Hridj;e i: Smith, ii. 310. 
Fort Wayne K. K. Co. c Mellett, iii. 

351, 352. 
Forth c. (^Iiapman, i. 107 ; ii. 703, 767, 
708, 774, 780. 

I'. Norfolk, ii. 171. 
Fortier v. Ballance, i. 602. 
Forward i-. Deetz. i. 000. 
Foscue r. Foscue. ii. 5JJ5. 
Fosdick V. Barr, ii. 121, 151. 

I'. Uooding, i. 291. 

V. Risk, ii. 170. 
Fosgate v. Herkimer Co., iii. 166, 170. 

174. 
Fo88 I*. Crisj), i. 190 ; iii. 458. 

I'. Straclm, i. 408, 440. 
Foster v. Abbot, i. 717. 

V. Beardsley Scythe Co., iii. 310. 

V. Browninji, i. 607; ii. 310. 

V. Dennison, ii. 470, 479. 

V. Dwinel, i. 213, 247. 

V. Equitable Ins. Co., ii. 243. 

V. Foss, iii. 433. 

V. Gordon, i. 247. 

i;. Hilliard, i. 131 ; ii. 224. 

V. Joice, i. 88. 

V. Leland, i. 452. 

V. Mansfield, iii. 306, 819, 320. 328. 

V. Mapes, iii. 331. 

1-. Marshall, i. 132, 188. 

r. Morris, i. 506. 

i;. Perkins, ii. 106. 

V. Peyser, i. 576. 

r. Reynolds, ii. 167. 

V. Robinson, i. 144. 

V. Runk, ii. 401. 

I'. Strong, ii. 125. 

V. Trustees, ii. 95. 

I'. Wightman, ii. 184. 
Foster's Appeal, i. 704. 
Foulke V. Bond, iii. 154. 

r. Stockdale, iii. 174. 
Fournier r. Chisholm, i. 421, 
Foust f. Moorman, i. 715. 
Fow I'. Roberts, i. 571. 
Fowle f. Merrill, ii. 70. 
Fowler c. Baiiley, i. 701. 

V. Bott, i. oJiO, 666. 

V. Bush, ii. 104. 

V. By era. ii. 273. 

t'. Depau, ii. 701. 

V. Poling, iii. 4>3. 487. 601. 510. 511. 

V. Shearer, i 2'.0. 257, 269, 346; 
iii. 124, 26 '. 294. 



Ixiv 



TABLE OF CASES CITED. 



Fowler v. Thayer, i. 677 ; iii. 144. 
Fowley v. Palmer, ii. 240, 244. 
Fox V. Corey, i. 548. 

V. Fletcher, i. 706. 

V. Fox, ii. 526. 

V. Hall, iii. 345. 

V. Harding, ii. 169. 

V. Hart, ii. 395. 

V. Nathans, i. G41. 

I'. Phelps, iii. 563, 565, 566. 

V. Southack, i. 79. 

V. Union Sugar Refinery, iii. 460. 
Foxcroft i\ Barnes, i. 717 ; iii. 351. 
Fov V. Foy, ii. 544. 
Frail v. Ellis, ii. 92. 
Francestown v. Deering, ii. 508, 516. 
Francis v. Garrard, i. 301, 311. 

V. Porter, ii. 109, 110,271. 

V. Wells, ii. 91. 
Franciscus v. Keigart, ii. 287, 435, 477. 
Frank v. Maguire, i. 535. 
Franke v. Berkner, ii. 467, 472. 
Franklin i: Carter, i. 557, 594. 

V. Coffee, i. 378, 379, 455. 

V. Borland, iii. 101, 149. 

V. McEntyre, ii. 514. 

V. Merida, i. 600. 

V. Osgood, ii. 84, 567, 715, 716, 718. 

V. Palmer, i. 594. 

V. Talmadge, iii. 281. 
Franklin Ins. Co. v. Cousens, ii. 321 ; 

iii. 451. 
Franks v. Lucas, i. 451. 
Frankum r. Falmouth, ii. 870. 
Fratt V. Whittier, i. 24, 29. 
Fray v. Drew, ii. 181, 182. 
Frazee v. Inslee, ii. 205. 
Frazer, Goods of, iii. 572. 
Frazier v. Brown, ii. 878. 
Frederick v. Gray, i. 691. 
Freeland v. Freeland, ii. 256 ; iii. 358. 
Freeby v. Tupper, ii. 170. 
Freeman v. Auld, ii. 184. 

V. Baldwin, ii. 57. 

V. Barber, i. 710. 

V. Cooke, ii. 578 ; iii. 89. 

t;. Foster, iii. 508, 509. 

V. Freeman, iii. 248. 

V. Headley, i. 622. 

V. McGaw, ii. 121, 170. 

V. Parsley, ii. 709. 

V. Paul, i. 241. 

V. Pope, iii. 357. 

V. Russell, il. 511. 

V. Schroeder, ii. 118. 
Freer v. Stotenbur, i. 466. 
Freison v. Bates College, ii. 184. 
French i-. Braintree Mfg. Co., ii. 396. 

V. Burns, ii. 53. 

V. Caddell, ii. 763. 

V. Carhart, ii. 331. 

V. Crosby, i. 286. 

V. Freeman, i. 20, 21. 

V. French, ii. 474; iii. 291. 



French v. Fuller, i. 472, 621, 687, 641. 

V. Marstin, ii. 338, 3.50, 352. 

V. McAndrew, iii. 264. 

V. Mehan, i. 707, 710. 

I'. Peters, i. 257, 259. 

V. Pratt, i. 303. 

V. Rollins, i. 126, 190 ; iii. 168. 

V. Spencer, iii. 114. 

V. Sturdivant, ii. 47. 

V. Turner, ii. 123. 
Freudenstein v. Heine, ii. 378. 
Freunde v. JMcCall, i. 408. 
Freyvogle v. Hughes, ii. 500. 
Frickee v. Donner, ii. 228. 
Friedley v. Hamilton, ii. 64, 155. 
Friedman v. Goodwin, iii. 200, 204. 
Frink i-. Bellis, iii. 490. 

I'. Darst, iii. 115. 

i: Green, iii. 396. 

V. Murphy, ii. 251. 
Frisbie v. Wliitney, iii. 209, 213. 
Frische v. Cramer, ii. 106. 
Frissel v. Rozier, i. 344. 
Fritz i: Pusey, iii. 491, 529. 
Frizzle v. Veach, iii. 20, 352. 
Frogmorton v. Wharrey, i. 112; 
Frontin r. Small, iii. 294. 
Frost V. Angler, iii. 428. 

V. Beekman, ii. 149; iii. 321, 324, 
328, 339. 

V. Borders, i. 447. 

V. Cloutman, i. 117. 

I'. Deering, i. 258 ; iii. 272, 297. 

V. Earnest, i. 658. 

V. Frost, ii. 535. 

V. Peacock, i. 237, 305. 

V. Raymond, iii. 517. 

V. Spaulding, iii. 428, 435, 453, 455. 

V. Yonkers Sav. Bank, ii. 181. 
Frothingham v. ]\IcKusick, ii. 105, 140. 
Frout V. Hardin, i. 607. 
Fry V. Jones, i. 604, 608. 

V. Miller, i. 12. 
Fry's Estate, il. 467, 500, 718. 
Fryatt r. Sullivan Co., i. 10. 
Frve I'. Illinois Bank, ii. 159, 160, 161, 

172, 196. 
Fryett v. Jeffreys, i. 515. 
Fuhr V. Dean, i. 656, 667. 
FuUam v. Stearns, i. 29. 
Fuller, Ex parte, iii. 566, 580. 

V. Arms, ii. 2. 

V. Bradley, i. 716. 

V. Chamier, ii. 650. 

V. Daniels, ii. 394. 

V. Fuller, ii. 724. 

V. Gillette, iii. 491, 492. 

I'. Hodgdon, ii. 177. 

V. Hunt, i. 436. 

V. Pratt, ii. 59. 

V. Prov. Co. Sav. Bank, iii. 406. 

V. Ruby, i. 556, 560, 564, 565. 

V. Russell, ii. 271. 

V. Sweet, i. 557, 600, 627. 



TAIIIJ': OF CASKS CITE]). 



Ixv 



Fuller r. Tuber, i. 31. 

c. Wmlsworili, ii. 107. 
r. Wuhoii, i. i;](J. l;W, lil'J. 
Fullerton c McC^unly. ii. (il. 
Fulton i: Stuart, i. 52"J. 
Fulwood i\ Ciniliiiiii, iii. 431. 
Ful wood's cast', iii. ;570. 
Funk f. Hri-al.li, i. 2U. 

V. Creswell. iii. -Wi, 178, 4J)0, 495, 
4'J'J, ijOt;, 5U7, 610, Gil, 62-1, 
520, 530. 
I'. Kjjjilestoii, ii. 712. 
V. lialiloiiiuii, i. 035. 
V. KMuai.l. i. 527. 548.603. 
i;. McUeynoMs, ii. 120, 227. 
V. Voiifida, iii. 4'J5, 610, 622, 624, 
620, 5;!0. 
Furbush c Chappcll, i. 10. 

v. Gootlwin, ii. 105, 107, 122, 123, 
133, 130. 
Furj,'Uson c. Coward, ii. 10!>. 
Furlong v. Leary, i. •il7, 031. 
Furnas c. Darrein, ii. 117. 218, 220, 255, 

271 ; iii. 4 'JO. 500, 507, 533. 
Furnoss r. Fo.\. ii. 028. 
Fu8selnian r. Worthington, i. 698, 002, 

619. 
Fyffe V. Bters, i. 450. 

G. 

Gabbert v. Schwartz, ii. 49, 258. 
Gable r. Ellendur. ii. 773. 
Gadberry r. Slifppiird, ii. 8, 9. 
Gatlield /•. Ilap^juod, i. 32. 
Gage c. Brewster, ii. 181, 218, 260, 202, 
205 ; iii. 522. 

V. Gage, iii. 10. 

r. Pitts, ii. 357. 

V. Smith, iii. 178. 

V. Sifinkr.iuss. i. 4. 

V. Ward, i. 228. 233. 
Gapliardo r. Duniont, i. 430. 
Gaines r. Catron, i. 703. 
Gainsfurd v. (irithth, iii. 521. 
Gaillu-r r. William,-*, ii. 40;j. 
Galbniith v. (iedge. i 701. 
Galbreath v. Doed.Zook. iii. 351. 
Gale V. Cohurn, ii. 444, 402, 409, 483 ; 
iii. 30(5. 

V. Edwards, i. 548. 

V. Kinzie. iii. '"O. 

V. Morris, ii. 80. 

r. Ni.xon, i. 518 ; ii. 293. 

V. Ward, i. 28. 
Gallagher c. Mars, ii. 91. 
Galland r. Jaekman. iii. 258. 33fl. 392. 
Gallatian v. Cunningham, iii. 820. 
Gallego V. Any. (Jen., iii. 551,554. 
Galliers c. Moss. ii. 140. 435. 
Gallipot r. Manlove, iii. 204. 
Gallowav V. Finley, iii. 212. 

V. Ogle, i. 693. 
vuL. I. — e 



dailoway r Wilder, iii. 472. 
Gulpin I'. Abbott, iii. X'AK 

f. I'agt.'. iii 2;2. 
Gnit V. (ialloway. iii. 212. 
GulvL-ston (-. Menard, iii. 44G. 
Galveston K K. v. Cowdrey, ii. 46, 103, 

25;); iii. 115. 
(Jamble r. McClure, iii. 518. 
(Janilile's Khtate, ii. 40'.». 
(iames i'. Stiles, iii. 230, 281. 
(iaininoii r. Freeman, i. 230, 249. 
(iainon r. Vernon, i. 5;{4. 
Gungweie's Ai)peal, i. 454. 
Gangwere's Kstate, i. 332. 
Gann r. Chenler, ii. 03. 97. 
Ciannett v. Albree. i. 503. 
(ianson r. Tifft. i. 545. 
Garantlo v. Cooley, iii. 41G. 
Gardiner r. Dering, i. 137. 
V. Guild, ii. 688. 
I'. Miles, i. 205. 
Gardiner Mg. Co. v. Ileald. i. 15, 719. 
Gardner r. Astor, ii. 202, 6<J0. 
r. Barnes, ii. 75. 
V. Kmerson, ii. 210. 
V. Finley, i. 25. 
I'. Gariliier, i. 479; ii. 635, 574 ; iii. 

207. 
V. (loofh, i. 63; iii. 105. 
V. Green, i. 204 ; iii. 101, 107, 110 
t: lleartt, ii. 141. 
V. Keteltas, i. 473, 664, 665. 
1-. Moore, iii. 400. 
V. Ogdeii, ii. 522. 570. 
r. Sheldon, ii. 772. 
Garfield r. llatmaker, ii. 678. 

V. Williams, iii. 485, 480,487, 527 
Garland r. Crow, i. 121, 311. 
Garner c. Bond, i. IJOO. 
v. Hannah, i. 516. 
Garnhart r. Finney, i. 505. 
Garnsey v. Mundav, ii. 493. 

V. Kogers. ii. 53. 219. 
Garrard i'. Tuck, i. 024. 
Garretson v. Cole, iii. 211. 
Garrett v. Chesire, i. 350. 

V. Jackson, ii. '•iiio, 339, 343. 
i\ Moss. iii. 270. 
V. Seouten, ii. 20. 
Garritt r. Sharp, ii. 352, 397. 
Garson r. Green, ii. 02,96. 
Gartside i: Outley, i. 640. 
Garvey v. Dobyns, i. 5.'j0. 
Garvin r. Dean, iii. 433. 
Garw<M)d *•. N. Y. Cent. & H. K K. K 

ii. 307, 368. 
Gary c. Easterbrook, i. 416. 
Gaskill r Sine, ii. 216, 221. 

r. Trainer, i. 613. 
Gaskin r. Rogers, iii. 542. 
Ciass r. (Jass, iii. 5-12. 

r. Wilhite, iii. 554, 557. 
Gassett r. (Jrout. iii. 3.')4. 
Gates {.'. Adams, ii. 212, 216, 230 



Ixvi 



TABLE OF CASES CITED. 



Gates V. Caldwell, iii. 519. 

V. Green, i 565. 

V. iSalmuii, i. Gt^'J. 
Gateward's case, ii. 313. 
Gatling c. Rodman, iii. 86. 
Gatton V. Tolley, i. 436. 
Gault V. McGratli, ii. 195. 
Gaunt V. Wainnian, i. i.50. 
Gaved v. Marhn, ii. 339. 
Gavit V. Chambers, iii. 439, 443. 
Gaw V. Hughes, iii. 108. 
Gay, Ex parte, i. 497. 

V. Baker, i. 35. 
Gayetty v. Bethune, ii. 347, 349; iii. 

420. 
Gr.yford v. NichoUs, ii. 382. 
Gayle v. Price, i. 249. 
Gaylord v. Loughridge, i. 412. 

V. Scarff, iii. 238. 
Gazzolo V. Chambers, i 475, 565. 
Gear v. Barnum, iii. 413. 
Gee V. Audley, ii. 724, 729. 

V. Gee, ii. 509, 514, 515. 

V. Manchester, ii. 769. 

V. Moore, i. 858, 899, 400, 430 ; iii. 
123, 508. 

V. Young, i. 140. 
Geer v. Fleming, i. 472. 

V. Hamblin, i. 2G9, 270. 
Geiss V. Odenheimer, iii. 299, 303. 
Gelzer v. Gelzer, i. 333. 
Geney v. Maynard, i. 374. 
Gen. Ins. Co. v. United States Ins. Co., 

ii. 151, 152. 
Center i-. Morrison, iii. 292, 299. 
George v. Andrews, ii. 220. 

V. Baker, i. 490; ii. 148,255. 

V. Cox, ii. 317, 350, 355. 

V. George, iii. 538. 

V. Kent, ii. 215. 

V. Morgan, ii. 656. 

V. Putney, i. 589, 594. 

V. Wood, ii. 210, 215, 221, 234,256, 
272 ; iii. 335. 
Georges Creek Co. v. Detmold, i. 167. 
Georgia Southern R. R. Co. v. Reeves, 

iii. 494. 
Gerber v. Grabel, ii. 319, 865. 
German v. Gabbald, ii. 518. 

V. Machin, i. 689. 
German Land Assoc, v. SchoUer, ii. 496 ; 

iii. 279. 
German Mut. Ins. Co. v. Grim, iii. 350. 
Gernet v. Ljmn, iii. 159. 
Gerrard v. Cooke, ii. 316, 852, 355. 
Gerrish v. Black, ii. 2.34, 245. 

V. Clough, iii. 62. 

V. Gary, iii. 413. 

V. Mace, ii. 183. 

V. Shattuck, ii. 3.50. 
Getman v. Getman, ii. 514. 
GetzIafE c Seliger, ii. 257. 
Getzler v. Saroni, i. 408, 4.38. 
Gheen v. Summey, i. 395, 460. 



Gliegan v. Young, i. 535. 

Gibbens v. Gibbens, ii. 599. 

Gibbes v. New York L. Ins. Co.,ii. 493. 

Gibiions v. Dayton, i. 635. 

V. Dillingham, iii. 416. 
Gibbs r. Barnardiston, ii. 677. 

V. Estey, i. 6. 

V. Holmes, ii. 110. 

V. Marsh, ii. 555, 718. 

j;. Patten, i. 425. 

V. Penny, ii. 54. 

V. Itoss, i. 530, 548. 

V. Swift, i. 687 ; iii. 341. 

V. Thayer, iii. 105, 123. 

V. Wilson, ii. 372. 
Gibert v. Peteler, ii. 14, 15, 317, 326 ; 

iii. 249, 348, 349. 
Giblin V. Jordan, i. 382. 
Gibson r. Brockaway, iii. 421. 

V. Choteau, iii. 115, 118, 518. 

V. Crehore, i. 131, 216, 237, 239. 
240, 241, 242, 304, 307, 309; ii. 
181, 182, 186, 204, 207, 209, 
214, 222, 224, 232, 236, 237, 
245, 246, 562. 

V. DurJiam, ii. 340. 

V. Eller, ii. 37, 45. 

V. Farley, i. 549; ii. 173; iii. 6. 

V. Foote, ii. 516. 

V. Gibson, i. 263, 330, 332 ; ii. 37. 

V. Kirk, i. 500, 556. 

V. McCormick, ii. 207. 

V. Montfort, ii. 537. 

V. Rogers, ii. 537. 

V. Soper, iii. 264. 

V. Taylor, ii. 70. 

V. Wells, i. 166. _ 

V. Zimmerman, i. 343. 
Giddens v. Williamson, i. 366. 
Giddings v. Sears, iii. 358. 
Gideon v. Struve, i. 457. 
Gies V. Green, ii. 275. 
Gifford V. Clioate, i. 106. 
Gilbert r. Anthony, iii. 254. 

V. Bell, iii. 219. 

V. Bulkley, iii. 826. 

V. Dickerson, i. 694. 

V. Dyneley, ii. 244. 

V. Nortli Am. F. Ins. Co., iii. 317, 
318, 321. 

V. Witty, ii. 605. 
Gilbertson v. Richards, ii. 73, 435. 
Gilchrist v. Patterson, ii. 107. 

V. Stevenson, ii. 552. 
Gildart r. Gladstone, iii. 202. 
Gile V. Stevens, i. 18. 
Giles V. Bareraore, ii. 191. 

V. Ebs worth, i. 594. 

V. Pratt, iii. 330. 

r. Simonds, i. 667, 671 ; iii. 366, 
368. 
Gilhooly c. Washington, i. 569. 
Gill, Goods of, iii. 578. 

V. Fauntelroy, i. 691 ; iii. 338. 



TABLE OF CASES CITED. 



Ixvii 



Gill V. Logan, ii. Iji\\. 

V. Lyon, ii. 1H»), 212. 

V. Miildieloii, i. 521, 522, 509, 675. 

i: Piiiney, ii. 50. 
Gillaii r. lIuu-liiiiMoii, ii. 4U0; iii. 221. 
(Jillespio c. Haili'V. i. 48H. 

r. Cui>iiiii);liain, iii. l'J8. 

V. Miller, ii. 787, 788. 

r. Somerville, i. 214, 234. 

V. Tlioina.H, i. 558. 
(lilli't c. MHynani, i. 0158. 
Gillelt c. H:ilc()iu, i. 144. 

V. Eaton, ii. 114. 

r. Mult lie ws, i. 5!W. 
Giiliiiin V. Moore, i. 2.»0. 
Gillis V. Brown, i. 2(i;J. 

V. Martin, ii. 40, ;')(), 50, 03. 
Gilluin r. Collier, i. 412. 
Gilman r. Hell, ii. tJS'.i, GDI. 

r. Hrown, ii. '.•2, '.to, 'J(j. 

V. Haven, iii. ;'>07. 

V. Hiiliien, ii. 2(54. 

v. Moociv, ii. m, 271. 

r. Morrill, i. (380. 

I'. HeiliuKton, ii. 577, 084. 

r. Sinitli, iii. 454. 
Gilmer r. Lime Point, iii. 225. 

V. O'Neal, i. 8(Jl. 
Gilmore v. Driscoll, ii. 381, 382, 393. 

r. Wilbur, i. 0!)!». 
Gilpin r. Ilollingswortli, i. 084 ; iii. 18. 
Gilson I'. Gilson, ii. 45. 50, 148. 
Gilworth r. Cody, i. :W\, :571. 
Gimmy r. Doane, i. 457. 
Giranl L. Ins. & T. Co. v. Chambers, 
ii. 78.-]. 

V. Stuart, ii. 218. 
Gi rani's Will, iii. 5-^2, 5.^:]. 
Ciittin};.s r. .Muale, iii. 145. 
Givan r. Doe il. Tout, ii. 119, 121, 122, 

12:5 ; iii. 332, 344, :{8:]. 
Givens r. Dewey, i. 3(50, 301. 

V. McCalmont, i. 148 ; ii. 139, 176, 
234, 2:]5, 2.39. 

c. Mullina.v. i. 000. 
Glascock V. Uobar.ls, i. 022. 
Glasfelter r. Walker, ii. 367. 
Glass r. Kllison, ii 145. 

V. Hulbert, iii. 248. 408. 
Gleason >■. Smith, iii. 507, 508. 
Glcim V. Kise. i (iOf). 
Glendcm /■. Uliler. ii. 375. 
Glenn /•. Bank of U. S., i. 259. 

r. Davis, ii. 3(jl. 
Glenorcliy r. Bosville, ii. 530. 
Gliililen v. Bennett, i. 5, 18. 

V. Blo.lnett, ii. 000. 

V. Simpler, iii. 78, 88. 
Glisson r. Hill, ii. 51. 
Globe Ins. Co. >: Lafisinp, ii. 252. 
Globe Mills i-. Quinn. 1. 5. 
Gloucester r. Gaffney, iii. 217. 
Glover r. Hill, i. ;5r,2. 

f. Pavn, ii. 51, 02. 



Glynn v. Georpe, i. 001. 
(jochenour r. .Mowry, iii. 490. 
Goilanl ('. S. C. Uuilroad, i. 010, C1.3. 
Goilbold I-. Lambert, iii ^135. 
Goildanl c. Chase, i. 27. 

I'. Coe, ii. 4(5. 

r. Sawyer, ii. 44, 130, 157, \->-. I • ' 
Godilanl's ease. iii. 299, 303. 
Godfrey c. Humphrey, i. 'Ml, 91 

V. Thornton, i. 443, 445. 

V. Watson, ii. 239, 244. 
Godley I'. Hajjerty, i. 171. 
(iodwin r. Kilslui, ii. 734. 
Goelet r. Gori, i. 710. 
Goewey c. Urig, iii. 1(53. 
Goylierty v. Bennett, ii. 508. 
Going V Kmery, ii. Mi ; iii. 550, 551. 
Golder c. Bressler, ii. 557, 507. 
Goldman c. Clark, i. 370, 43'J. 
Goldsberry r. Bisliuji, i. 028. 

V. Gentry, ii. 510. 
Goldsmid r. Trim. W. Imp. Co., ii. 309. 
Gomber ». Hackett, i. 515. 
Gomez v. Tradesmen's Bank, ii. 547. 
Goocli V. Atkins, i. 31-3 
Good V. Coombs, i. (588; iii. 277. 

r. ZercluT, iii. 22(5. 228. 
Goodal V. Godfrey, ii. 331. 
Goodall r. Boardman, i. 380. 

I'. McLean, iii. 501. 
Goodall's case, ii. 41. 
(loodburn r. Stevens, i. 210, 311 ; ii. 207. 
(Jooile r. Comfort, ii. 85. 
Gooilell '•. Bales, iii. 107. 

r. Hibbard. ii. 478. 

V. Jackson, i. 79. 
Gooilenow v. Ewer, ii. 113. 
(looding v. Shea, ii. 14(1. 
(Joodkt r. Smithson, iii. 205, 206, 207. 
Go)dn)an r. (iore. ii. 300. 

I', (irierson. ii. 51. 

V. Han. & St. Jo. U. H , i 9. 33. 

V. Saltash, ii. 313, 316, 348. 392, 
393. 

V. White, ii. 117, 181. 2.')0, 202. 
Goodnow v. Empire Lumber Co., iii. 

207. 
Goodrich r. Jones, i. 18, 20; iii. 410, 
417. 

V. Lambert, ii. 057. 

r. Staples, ii. 2(51. 
Goodrid^'c i: Dustin, iii. 95. 130. 
(ioodnu'ht r. Cntor. i 514 ; ii. ()90, (397 

I'. Cordwent, i. 0:>i, 0.39. 045. 

I'. Cornish, ii 724, 742, 782. 

r. Davids, ii. 20. 

V. Duidiam, ii. (52o. 

r. Hichardson, i. 470. 

r. Searle. ii. 770. 

r. Straphan. iii. 2(51. 

r. Wells, ii. 5<51. 
Goodrum i-. (ioodrum, 1. 342. 
(Jooilsoll r. .Sullivan, iii. ."41. 
Goodson V. Oeacham, iii. 119. 



Ixviii 



TABLE OF CASES CITED. 



Goodspeed v. Fuller, iii. 392, 400. 
Goodtitle v. Bailey, iii. 404. 

V. Billington, ii. 033, OGO, G68. 

V. Holdfast, ii. 23. 

V. Jones, ii. 573. 

V. Kibbe, iii. 446. 

V Tombs, i. 4(35, 693. 

I'. Way, i. 481. 

V. Whitby, ii. 628. 

V. Wood, ii. 776, 777. 
Goodwin V. Clark, ii. 683. 

V. Gilbert, i. 518 ; ii. 52, 293 ; iii. 
331, 401. 

V. Goodwin, i. 204. 

V. Keney, iii. 277. 

V. Richardson, i. 700, 705; ii. 124, 
149, 16.5, 190. 
Gordon v. Canal Co., ii. 33. 

V. George, i. 531. 

V. Graham, ii. 159. 

V. Haywood, i. .345 ; iii. 269. 

V. Hobart, ii. 189. 

V. Lewis, ii. 235, 238, 244, 245. 

V. Little, i. 144. 

V. Sizer, iii. 139, 257. 

V. Small, ii. 535. 

V. Ware Savines Bank, ii. 241. 
Gore V. Brazier, i. 300; iii. 501, 532. 

V. Fitch, ii. 352. 

V. Gibson, i. 486. 

V. Gore, ii. 684, 778. 

V. .lenness, ii. 141. 

V. McBrayer, ii. 407. 
Gorges r. Staiifield, i. 135. 
Gorham r. Daniels, i. 203; ii. 478; iii. 
395. 

V. Gross, ii. 388. 
Gorin r. Gordon, ii. 692, 699, 700, 720. 
Goring v. Shreve, ii. 170. 
Goss V. Singleton, ii. 552, 553 ; iii. 176. 
Gossett V. Kent, iii. 280. 
Gossin V. Brown, ii. 228. 
Gossom V. Donaldson, i. 679, 721. 
Gothard v. Flynn, ii. 89. 
Gott V. Gandv, i. 521. 570, 576, 637. 

V. Powell, iii. 232. 
Gouchenour r. Mowry, iii. 499. 
Gough 1'. Planning, ii. 10. 
Goulienant i: Cockrell, i. 426. 
Gould V. Boston, iii. 79. 

V. Hudson River R. R., ii. 391. 

V. Lamb, i. 89 : ii. 537. 

V. Lvnde, ii. 503, 513. 

V. Mansfield, iii. 538. 

V. Mather, ii. 716. 

V. Murch, iii. 249. 

V. Newman, ii. 117, 120, 175. 

V. School District, i. 465. 

V. Thompson, i. 622, 623, 626, 627. 

V. Womack, i. 333. 
Goundic V. Northampton Water Co., iii. 

85, 80. 
Gourley v. Gilbert, ii. 593. 

V. Kinley, i. 196. 



Gourley v. Woodbury, i. 712 ; ii. 588. 
Gove V. Richardson, iii. 97. 

V. White, iii. 81, 436, 449. 
Governor v. Woodworth, ii. 585; iiL 

175. 
Govier v. Hancock, i. 258. 
Gowen v. Phila. Exch. Co., i. 662. 

V. Shaw, i. 695. 
Gower v. Winchester, ii. 192. 
Gowlett V. Hantbrth, ii. 67. 
Grable c. McCulloh, ii. 110. 
Grace v. Hunt, ii. 146. 

V. Webb, ii. 10. 
Graff V. Fitch, iii. 367. 
Graffius v. Tottenham, iii. 177. 
Grafton Bank v. Foster, ii. 194. 
Graham i". Anderson, iii. 346, 847. 

V. Carter, ii. 206. 

V. Connersville R. R., i. 7. 

V. Craig, iii. 155. 

V. Crockett, i. 360. 

V. Graham, ii. 53. 

V. Hooper, ii. 122. 

V. Houghtaling, ii. 600. 

V. IMcCampbell, ii. 96, 97. 

V. Newman, ii. 126. 

V. Oviatt, i. 415. 

V. United States, i. 60. 

;•. Way, i. 547, 553. 
Gramlick i'. Wurst, i. 573. 
Cranberry v. Cranberry, ii. 245. 
Grand Junction Canal v. Shugar, ii. 376. 
Granger v. Brown, i. 642, 644. 

V. Parker, iii. 98. 

V. Swart, iii. 61, 351. 
Grant r. Bissett, ii. 149, 156. 

V. Chase, i. 120 ; ii. 314, 368, 399. 

V. Dodge, i. 230. 

V. Duane, ii. 181. 

V. Fowler, iii. 146, 162, 177. 

V. Grant, iii. 560. 

V. Thompson, i. 485. 

V. Whitwell, ii. 291. 
Grantham r. Atkins, iii. 208. 

V. Hawley, i. 37, 142. 
Grapengether i: Fejervary, ii. 91. 
Grattan v. Wiggins, ii. 128, 129, 192, 

202. 208. 
Gratz V. Beates, iii. 453, 454, 456. 

V. Ewalt, iii. 524. 

V. Gratz, i. 719. 
Graven horst v. Nicodemus, i. 562. 
Gravenor v. Ilallum, iii. 559. 

V. Woodhouse, i. 600. 
Graves v. Amoskeag Co., iii. 414. 

V. Berdan, i. 537, 566, 578 ; ii. 389. 

V. Dudley, iii. 311. 

V. Graves, ii. 47, 457, 459, 503, 519, 
520; iii. 339,401. 

V. Hampden Ins. Co., ii. 241, 243, 
244. 

V. Porter, i. 520, 531. 

IK Rogers, ii. 200. 
Gray v. Baird, i. 454, 460. 



TAItLE OF CASKS CITKD. 



I.\i\ 



Gray r. nnldwin, ii. 111. 

v. Hiirtlftt, ii. .';'.il ; iii. 85, 80. 

r. Hcrrv, iii. '.Ml. 

V. Illaiu:liiir.l. ii. 1'), 17. I'J. 21. 

V. IJompas, i. (11;!. 

V. Hri.lKctortli, ii 7(13. 

I'. Hri'/nanli'llo, ii. 'd^i. 

V. Dt'liici', iii. loi). 

r. (liilcspie, ii. 105. 

V. (livens, i. tJiR). 

r. (jray, li. 500. 

I', llornltt'ck, iii. 405. 

V. JiMiks, ii. 133. 

V. JolmsDii, i. 588, 6'.ll. 

V. L} iiLJi, ii. 555, 507, 704. 
Graydoii c. C'Imrcli, ii. 42, 207. 
Grayson r. \Veil<lif, iii. 400. 
Great Falls Co. v. Worster. i. 688, 601 ; 

ii. 105 ; iii. 118, 277, 455, 41(0. 
Greatrex v. llaywanl, ii. 380. 
Greber r. Kleckner, i. 4'J7. 
Green «;. Armstrong, i. 4, 12, 15 ; iii. 304, 
307, 309. 

V. Butler, ii. <30, 65, 66. 

r. Gates, ii. 514. 

V. Chelsea, i. 04; ii. 347, 303; iii. 
447, 454. 

I'. Clark, ii. 515 ; iii. lO'J. 

V. Collins, iii. 488. 

V. Crockett, ii. 07. 

V. Cross, ii. l-JO, 250. 

V. DeiMoss, ii. 07. 

V. Dixon, ii. 2.30. 

V. Dniininond, ii. 514, 518. 

V. Fowler, ii. 04. 

V. (Jreen, i. 200, 210, 213, 3-35, 3.38. 

V. Hart. ii. 101, 102, 103, 127, 104. 

V. Irving, iii. 5(X», 511. 

V. Jones, iii. 248. 

I'. Kemp, ii. 18.3. 

V. Liter, i. 58, 00, 03, 04, 183; iii. 
142, 1(34, 204. 

V. Marks, i. 417. 433, 447. 

V. Massie, iii. 21. 

V. Miller, ii. 500. 

V. Phillips, i. 24, 27. 

V. Putnam, i. 10, 204, 201. 31-3. 712 ; 
ii. 302; iii. 217, 321, 415. 

V. Pettingill, ii. 18, 254. 

V. Ramagc, ii. 210. 

V. iSmitii, iii. 88. 

r. Tanner, ii. 150. 

r. Teiinant. i. 202, 301. 

f. Thomas, iii. 387, 301, 394, 396. 

r. Winter, ii. 5(30. 

I'. Yarnall, iii. 312. 
Green's Fstate, iii. 202. 
Green Bay, &c. Co. v. Hewitt, iii. 400, 

400. 
Green Township, Trustees of, c. Rob- 
inson, i. 400. 
Greenaway v. Adams, i. 505. 
(Jreenhy v. Wilcocks, iii. 487. 
(iretne r. Cole, i. 102. 



Greene r. Creifihton. ii. 300, 323. 

r DenniH, iii. 550, 500. 

I', (ireene, i. 207. 
Greene Co. i. Hull. ii. 348. 
Greenhoune, /..i /«(»<•, ii. 558. 
Greenleaf f. Allen, i. 525, &i5. 

r. Birth, iii. 403. 

I'. Francis, ii. 374, 377. 
Greeno v. Munson. i. 598, 002, 003; iii 

174. 
Greenough v. Turner, i. 437. 

V. Welles, ii. 718. 
Greenshule r. Tai)«cott, i. 511. 
(ireenup r. .Seweii, i. 712. 
Greenwood r. Coleman, iii. 207. 

f. Curtis, i. 223. 

r. Mad.iox. i. .3.>7, .307. 

V. Murdock, iii. 420. 

r. Roberts, ii. 703. 

V. Kothwell, ii. 053. 

('. Tyler, iii. 408. 
Greenwood's ca.se, iii. 547. 
Greer r. HIanchar, iii. 225. 

c. Haugabook, ii. 305, 307. 

I-. N. Y. Central, &c. R. R. Co., iii. 
44! t. 
Gregg V. liiackmorc, i. 720; iii. 71, 174. 

c. Hostwick, i. 3(17, 384. 

V. Tesson, iii. 100. 

V. Wells, iii. 85. 
Gregory r. (^onnollv, i. 095. 

i: Doidge. i. Olio. 

r. Henderson, ii. 498. 

i: Perkins, ii. 54, 55. 

V. Pierce, iii. 272. 

c. t?avage, ii. 102, 121, 120, 127, 
202. 

I-. Walker, iii. 315. 
Greider's Ai)|)eal, i. 579. 
Greig i'. Easiin, i. 372. 
Greton v. Smith, i. 035. 
Grey r. Mannock, i. 128. 
Gridley r. Watson, iii. .350. 

r. Wynant, iii. 274. 
Gridly c. Hloomington, i. 670. 
Griffin ,-. Bixby, i. 14. 

V. Kiioit, i. 410. 

V. Fairbr.)ther,iii.478,481,483,484, 
487, 503. 

V. Graham, iii. 554, 657. 

f. Grirtin, ii. 80. 

r. Kniscly, i. 481. 

V. Procter, i. .372. 437, 461. 

V. Reece. i. 20(3, 270. 

I'. Sheffield, i. 050; iii. 26a 

V. Shellev. i. 450. 

V. Sutherland, i. 303, 454. 
Griffith r. Deerfelt, iii. 205. 

r. Griffith, i. 247. 

r. Hodges, i. 583. 

f. Kniseiv, i. 051. 

r. Pownall. ii. 637. 7.32. 793. 
Griffiths V Pen.xon, iii. 420. 
1 Griggs I . Smith, i. 230, 246. 



Ixx 



TABLE OF CASES CITED. 



Griggsby v. Hair, ii. 97. 
Grignon v. Astor, iii. 20.3, 204. 
Grim v. Dyar, iii. 562. 

V. Murjiliy, iii. 152. 
Grimbali r. Patton, iii. 17. 
Grimes c. Kimball, ii. 196, 197. 

V. Ragland, iii. 109. 
Grimman v. Legge, i. 557, 582, 583, 

627. 
Grissler v. Powers, ii. 183, 188. 
Grist V. Hodges, iii. 500. 
Griswold i\ Bigelow, iii. 222. 

V. Butler, iii. 266. 

V. Fowler, ii. 250. 

V. Greer, ii. 706. 

V. Johnson, i. 688. 

V. Mather, ii. 109. 

V. Messenger, ii. 420; iii. 400. 
Groesbeck v. Seeley, ii. 520, 544 ; iii. 

238, 251, 333. 
Groff V. I.evan, i. 145. 
Groft V Weakland, iii. 148. 
Grooms v. Kust, ii. 54. 
Grose v. West, iii. 450. 
Grosvenor v. Atlantic Ins. Co., ii. 243. 

V. Henry, i. 630. 
Groton v. Boxborough, ii. 105, 107, 169, 

174. 
Grout V. Townsend, i. 126, 132, 180; 

ii. 602 ; iii. 275, 401. 
Grover v. Flye, ii 166, 168. 

V. Thacher, ii. 122, 204. 
Groves v. Cox, ii. 745, 769. 
Grubb V. Bayard, i. 19, 403. 

I". Grubb, iii. 422. 

V. Guildford, iii. 419. 
Grube v. Wells, iii. 139, 151, 171, 173. 
Grumble v. Jones, ii. 772, 773. 
Grundin v. Carter, i. -326, 546, 548, 550. 
Gryraes r. Boweren, i. 34. 
Guard v. Bradley, iii. 308, 316. 
Gubbins r. Creed, ii. 68. 
Gudgen v. Besset, i. 556. 
Guernsey v. Wilson, i. 7; ii. 141. 
Guerrant r. Anderson, iii. 343. 
Guesnard 7;. Bird, ii. 378. 
Guest V. Opdyke, i. 605. 

?-. Revnolds, ii. 365. 
Guild y. Richard, ii. 15, 18,21. 

V. Rogers, ii. 290, 2'.:4. 
Guill V. Northern, ii. 574. 
Guilmartin v. Wood, iii. 433. 
Guiod V. Guiod, i. 400. 
Guion r. Anderson, i. 132, 182, 187, 188, 
189. 

?'. Knapp. ii. 135, 212, 221. 
Gulliver r. Wickett, ii. 746. 
Gully I'. Ray, i. 214, 229, 234, 250. 
Gunn r. Barrow, ii. 573. 

V. Barry, i. 355. 
V. Wades, i. 416. 
Gunnison v. Twichell, i. 312. 
Gupliill V. Isbell, ii. 572. 
Gurney v. Gurney, iii. 542. 



Guthrie v. Gardner, ii. 508. 

V. Jones, i. 29, 31. 

V. Kahle, ii. 108, 234. 

V. Owen, i. 313. 

V. Russell, iii. 531. 
Guy r. Brown, ii. .329. 

V. Downs, i. 453. 

V. Ide, ii. 113. 
Guynne i-. Cincinnati, i. 280. 
Gwathmeys v. Kagland, ii. 129. 
Gwiunell v. Earner, i. 572. 
Gwyn 1-. Wellborn, ii. 107. 
Gwyun v. Jones, i. 653. 



H. 



Haberghani v. Vincent, ii. 707 ; iii 573. 
Hackett v. Reynolds, ii. 89. 
Hadfield's case, iii. 547. 
Hadley v. Chapin, ii. 1.34. 

V. Houghton, ii. 271. 

V. Morrison, i. 627. 

V. Pickett, ii; 95. 

V. Taylor, i. 570, 573. 
Hadlock v. Bulfinch, ii. 195. 

r. Hadlock, iii. 304. 
Haffley v. Maier, ii. 266. 
Haflick r. Stober, i 33. 
Hafner r. Irwin, iii. 469. 
Hagan )•. Campbell, iii. 202. 

V. Walker, ii. 264. 
Hagar v. Brainard, ii. 43, 140. 

?-. Wis wall, i. 717. 
Hagcr V. Nixon, i. 364, 410. 
Hagthorp v. Hook, ii. 234, 238, 239; 

iii. 346. 
Hague r. Porter, i. 465. 
Haigli, Ex parte, ii. 87. 
Haiglit r. Keokuk, iii. 439. 
Haines r. Beach, ii. 263. 

V. Gardner, i. 248. 

V. Thompson, ii. 50, 62, 63, 64. 
Halt V. Houle, i. 445. 
Halcombe v. Ray, ii. 55. 
Haldane ?». Johnson, i. 514. 
Haldeman v. Burckhardt, ii. 376. 

r. Haldeman, i. 118; ii. 654, 655. 
Hale V. Glidden, iii 161. 

V. Heaslip, i. 361. 

V. Henrie, ii. 88. 

V. .Jewell, ii. 57. 

V. McLea, ii. 374. 

I. Munn, i. 248. 

V. New Orleans, iii. 506. 

V. Oldroyd, ii. 357, 397. 

V. Patton, ii. 68. 

V. Pluminer, i. 210, 211. 

V. Rider, ii. 2.58. 

i\ Silloway, iii. 152. 
Haley v. Bennett, ii. 91. 

V. Colcord, ii. 353. 
Halifax V. Higgens, ii. 67. 
Hall V. Ashby, iii. 3-52, 381. 



TAULE OP CASES CITED. 



Ixxi 



Hall I'. Ball, i. 477. 

I'. HIias, li. 00, 71, 72. 77, 78. 714. 

I'. HiirjjeHH, i. oo7, U:12. 

r. iUitlor, i. (iOO. 

V. C'azi-nove, i. 4G'J. 

V. ChatTce, i. tl(itj ; ii. 767, 703, 764, 
707 ; lii. 508. 

I'. Cusliinn, ii. 655. 

i\ CuslmiHii, ii. 225. 

r. Davis, iii. 42'.>, 4;31. 

V. Dcnch, ii. 108. 

V. Dewey, i. 598. 

V. Katon, iii. 428. 

1-. Hall, i. :;.14: ii. 493. 

I'. Harris, iii. o2l. 

r. lluggins, ii. 200. 

V. Jones, ii. Ul. 

V. Lance, ii. 100. 

V. Leonard, iii. 282. 

r. Liciifuld Brew. Co., ii. 302. 

I'. Lund, iii. 408. 

I' Mavliew, iii. 427, 525. 

V. McCornnck, ii. 128. 

I'. McCoupliey, ii. o50. 

V. McDnti; ii. 87, 89; iii. 326. 

V. McLeoil, iii. 67. 

V. Nasii, ii. 271. 

i;. Nelson, ii. 201, 260. 

V. Niite, ii. 5U6. 

V. Orvis, iii. 100. 

V. Patterson, iii. 347. 

V. riaine, iii. 470. 

V. Priest, i. 107 ; ii. 503, 005, 745, 
747, 75.'J, 751, 703, 707, 772, 
774, 780. 

V. Robinson, ii. 770, 783. 

V. Savage, i. 268. 

V. Sayre, i. 341. 

I'. Scott County, iii. 479. 

I'. Stephens, i. 03, 700, 708, 710 ; 
iii. 158, 174. 

V. Surtces, ii. 177, 192. 

V. Swift, ii. 343, 308. 

V. Tay, ii 157, 194. 

V. Townc, ii. 77. 

V. Tufts, i. 85. 

V. Tunell. ii. 100. 

r. Waibwertli, i. 0.35, 0-38, 639. 

V. Wateriiouse. iii. 208. 

V. West. Transp. Co., i. 625. 

V. Willianis. ii. 532, 533. 

V. Young, ii. 508, 510, 545. 
Hall's Estate, In rv. i. 210. 
Hallen r. Uunder. i 0. 83. 
Halleubeck v. De Witt, iii. 298. 
H.allett V. Collins, ii. 500; iii. .>31. 

V. Wylie, i. 480, 500. 
Halligan v. Wade, i. 502, 563, 504. 
Hallnian's Estate, ii. 571. 
Hallock V. Smith, ii. 07. 
Halloran r. Wliitcomb, iii. 81. 
Halsey v. Blood, i. 721. 

V. McCormick. iii. 438. 
V. Kecd, ii. 217, 227. 



I Halsey <\ Tate, ii. 6-35. 
Haistiad v. Hall, ii or>4. 
Hum f. Hunt, iii. 78, 121 

t'. Kendall, i. 5. 
Hamblin r. Hank of Cumlierhmd, i. 240 
Hanierton i'. Stead, i. (Sl'l, 084. 
Hamilton r. Adams, iii. 242. 

V. Crosby, iii. 231. 

r. Cutts, lii. 607, 611. 

V. Dooiittle, iii. 381. 

f. Elliott, ii. 12, 18, 19. 

r. Eowlkes, ii. 92 

r Lubukee, ii. 74, 78, 79. 

V. .Marsdin. i. 000. 

r. Xutt. iii. 318. 

r. Porter, iii 600. 

V. Qiiinibv, ii. 105. 

1-. Whiie.'ii. 355. 357, 359. 

V. Wilson, iii. 479. 

V. Wright, i. 519, 621 ; iii. 168, 108. 
Hamit c. Lawrence, i. 591. 
Hamlin v. Eur. & N. .\ U. U., ii. 101. 

V. Hamlin, i. 214, 210. 

r. Jerrard, ii. 104. 
Hammington v. Rudyard, ii. 775, 790. 
Ilamnion r. Douglas, i. 031. 
Hammond v. Ale.vander, iii. 251. 

1-. Hall, ii. 374. 

t;. Inloes, iii. 54. 

!'. Lewis, ii. 120. 

V. McLachlan, iii. 448, 451. 

V. Port Koyal, ic. Ky. Co., iii 494. 

t: Hidgely, iii. 4.J0. 
Hampden .Mills v. Payson. ii. 194. 
Hampton v. Hodges, ii. 141. 

V. Levy, ii. 155. 

i;. Moorhoad, ii. 708. 
Hanbury v. Hussev, i. 711. 
Hancliel v. Whitney, i. 040. 013. 
Haucock r. Beverly, iii. 345. 

r. Butler, ii. 057. 

V. Carlton, ii. 23, 38, 203. 

I-. Day, i. 095. 

r. Morgan, i. 379. 

c. Wentworth, ii. 301. 
Hancock's I'state, ii. 770. 
Hand c. Hall. i. 481. 
Handbcrry r. Dooiittle. iii. 514. 
Hantlley »•. Howe, ii. 153. 

V. Wrightson. ii. 550, 551. 
Handj' v. Commercial Bank, ii. 157. 
Hanfonl /•. Blessing, ii. 02. 

V. McNair. iii. 297. 
Hanger r. Abbott, iii. 191. 
llanham v. Sherman, i. 583. 
Ilanloy v. Wood. ii. 4<>2. 403. 
llanna r. Henfro. iii. 147, 163. 352. 
Hannah r. Carrington, ii. 73, %% 81 
101. 229. 

V. Henderson, iii. 5<)7. 

f. Swarner, iii. 315. 
Hannahs v. Felt, i. 355. 
Uannan v. Hannan. ii. 250. 

V. Usborn, i. 697. 



iXXll 



TABLE OF CASES CITED. 



Hannay v. Thompson, ii. 5-1. 
Hannen v. Ewalt, i. 535. 
Hannon c. Cliristoplier, ii. 478. 
Hannum v. Mcliiturf, i. 855. 

V. West Chester, iii. 408. 
Hanover Water Co. v. Asiiland Iron 

Co., ii. 394. 
Hanrahan v. O'Reilly, i. 5 ; iii. 76, 80. 
Hanrick r. Hanrick, iii. 50. 
Hansard v. Hardy, ii. 190. 
Hansen v. Meyer, i. 533. 
Hansford v. Holdam, i. 437. 
Hanson v. Campbell, iii. 450, 451. 

V. Willard, i. 718. 
Hapgood V. Blood, ii. 107. 

V. Brown, iii. 412. 
Harbeck v. Vanderbilt, ii. 197. 
Harbert's case, ii. 212. 
Harberton v. Bennett, ii. 228. 
Harbidge v. Warwick, ii. -362. 
Hardeman v. Donner, i. 355. 
Harden v. Darwin, ii. 507 
Hardenburg v. Lakin, iii. 274. 
Harder v. Harder, i. 148; ii. 519. 
Hardin v. Lawrence, i. 717. 

V. Wolf, i. 361, 437. 
Harding v. Hale, iii. 79. 

V. Springer, i. .343, 706. 

V. Strong, iii. 409. 

V. Tibbils, iii. 237. 

V. Townshend, ii. 243. 

V. Wilson, iii. 518. 
Hardisty v. Glenn, i. 593 ; iii. 165. 
Hardy, Ex parte, ii. 88. 

V. Lane, i. 378, 460. 

V. Miller, ii. 222. 

V. Nelson, i. 565. 

V. Sulzbacher, i. 883. 

V. Wilcox, ii. 773. 
Hare v. Celey, i. 604. 

V. Groves, i. 566, 568. 
Hargrave v. King, i. 504, 505, 511. 
Harker i'. Birbeck, i. 19. 
Harkins v. Pope, i. 636. 
Harkreader v. Clayton, iii. 323. 
Harlan v. Laugham, i. 689. 

V. Lehigh Coal Co., i. 520; ii. 403. 

V. Seaton, iii. 345. 

V. Stout, i. 717. 
Harle v. McCoy, i. 624 ; iii. 98. 
Harley v. King, i. 525, 534, 535. 
Harlow v. Cowdrey, ii. 488. 
V. Stinson, ii. 390. 

V. Thomas, iii. 495, 506, 529. 
Harman v. Gartman, i. 694. 
Harmer v. Morris, iii. 454. 
Harmon v. Brown, ii. 10. 
V. Flanagan, i. 618. 
V. Short, ii. 100. 
Harmony Bank's Appeal, ii. 225. 
Harney v. Morton, iii. 110. 
Ilarpending v. Dutch Church, i. 690. 
Harper v. Archer, iii. 16. 
V. Barsh, ii 56 ; iii. 339. 



Harper v. Ely, ii. 107, 185, 240. 

V. Hampton, iii. 294, 295. 

V. Little, iii. 294. 

V. Perry, iii. 336, 399. 

V. Phelps, ii. 513, 550. 

r. Tapley, iii. 339. 
Harper's Appeal, ii. 144, 238. 
Harral i\ Leverty, ii. 115, 173. 
Harramond v McGlaughon, iii. 436, 
Harrel v. IMiller, iii. 369. 
Harriman v. Brown, iii. 455. 

V. Gray, i. 258, 261 ; iii. 122 
. V. Harriman, ii. 614. 

r. Queen's Ins. Co., i. 381. 

V. Southam, iii. 280. 
Harrington v. Murphy, iii. 529. 

V. Worcester, iii. 235, 239 
Harris v. Austell, i. 355. 

V. Barnes, ii. 782. 

V. Barnett, ii. 504. 

V. Burton, iii. 268, 334. 

V. Carniody, iii. 277. 

V. Carson, i. 140. 

V. Cohen, i. 570. 

V. Colquitt, i. 386. 

V. Elliott, iii. 411, 418, 450. 

V. Fly, iii. 348. 

V. Frink, i. 12, 140, 622. 

V. Gillinghara, i. 665, 666. 

V. Haynes, i. 29. 

V. Hull, iii. 428. 

V. McElroy, ii. 572, 644. 

V. Mackintosh, ii. 367. 

V. McKissack, iii. 210. 

V. Mills, ii. 191, 193. 

V. Norton, ii. 151. 

V. Pucker, ii. 555. 

V. Ryding, i. 19 ; ii 384, 388. 

V. Thomas, i. 167. 
Harrisburg r. I'effer, iii. 507. 
Harrison v. Blackburn, i. 473. 

V. Eldridge, ii. 258. 

V. Forth, iii. 360. 

V. Good, ii. 323. 

V. Harrison, ii. 550, 577, 684. 

V. Lemon, ii. 58. 

V. Middleton, i. 619, 621. 

V. Owen, ii. 133. 

V. Phillips Academy Trs.,' iii. 303, 
311, 354. 

V. Pool, iii. 15.3. 

V. Trustees, &c., ii. 47, 57, 64, 65. 

V. Wood, i. 314. 

V. Wyse, ii. 246. 
Harrold r. Simons, iii. 338. 
Harsha v Reid, ii. 298; iii. 248. 
Hart V. Blackington, ii. 106. 

V Goldsmith, ii. 280. 

V. Israel, i. 548. 

V. Lyon, ii. 300, 386. 

V. Vose, ii. 338 ; iii. 67. 

V. Windsor, i. 619, 520, 566, 576. 
Hartley v. Frosh, iii. 334. 

V. O'Flaherty, ii. 212, 229. 



TABLE OF CARES CITED. 



Iwiii 



Hnrtlev r. Stito, iii II. 

(•.■Tiillmiii. ii. i:!.'). IHO. 186. 
llnrili-y's Appeal, ii. 71!>. 
ll.irtli-y's Ksmte, ii. 4'M. 
lIiirtiDim r. Kmilall. iii. 200. 

V. Scluillz. i. i02. 
Mnrton c. Ihirton. ii. 488, 498. 601. 
Ilarlop's ca8C', ii. -llil. 
llfirtaliDrn v. Day, iii. 208. 

r. llul.banl, ii. 110. 
llartsliome v. Hartsliorne, i. 210, 287, 

.ilMl. 

r. Wat!«)n, i. 514. 
IlartuiiK r. White, iii. -101. 502. 
Ilartweil v. Uiocker, ii. 207. 

r. Kelly, i. 7. 

V. Hoot. iii. 222. 
Harvard College i>. Theol. Ed. Soc, iii. 

557. 
Harvey v. Alexander, iii. 401. 

r. Brvdjies, i. 045, 055. 

V. .Mi'toliell, iii. 343. 

V. Pennvpacker, ii. 618. 

V. Thornton, ii. 200. 

V. Tvler. iii. 57. 

V. Wickham, i. ISl. 189, 355. 

V. WoodliDUse, ii 212. 
Harvie v. U inks, ii. 240. 
Ilarvy v. A.<ton, ii. 11. 
Harwood r. Benton, ii. 375. 
Ihisbrouck c. Verniilvea, iii. 412. 
Haskell v. Bailey. ii.'UU. 

r. New Beilfonl, iii. 224. 

V. rmnam, i. 58'J. 

?'. Scott, ii. '.tl. 
Haskins i'. Ilaskins, i. 658. 

t'. Hawkes. ii. 147. 
Haslajje v. Kni'^h. iii. 21. 
Haslain r. Campbell, i. 401, 402. 
Hasleni r. Ixickwood, i. 4. 
Haslett V. Glenn, i. 142. 
Hass I'. Plautz, iii. 94. 
Hassenritter r. Kirchhoffer, iii. 109. 
Hassett v. Ridtrelv, i. 714. 
Hastings v. ClifToVd. i. 337, 338. 

I'. Crunckleton. i. 148, 149. 

I'. Cutler, iii. 201. 

V. Dickinson, i. :i03, .326, 329, 330. 

r. Ilastinffs, i. 093. 

V. Pratt, ii. 177. 

V. Stevens, i. 2-37, 239, 241, 291, 
304. 
Ilastv V. Wheeler, i. 153, 163. 
Hatch V. Bates, iii. 208, 800, 310, 312, 
.342. 394. 

V. Dwight, ii. 396; iii. 436, 458. 

t'. Hart. i. 607. 

i;. Hatch, i. 499; iii. 260. 800, 324. 
V. Kimball, ii. 204; iii. 82. 
I'. Palmer, i. 2.];t. 
r. Stamper, i. 538. 
r. Vermont Central R. R., iii. 163. 
• V. White, ii. 252. 
Hatchell v. Kinbrough, i. 000, 008. 



Haffleld V. Rneden. i. 179, IW), 27.3, 

270; ii. 741 ; iii. 20H. 
Hathaway c. Kvnn». iii. 430. 
r. Juneau, iii. 424. 
r. Payne, iii. 320. 
r*. Valentine, ii. 147. 
r. Wilson, iii. 447. 
Hathon i-. Lyon, i. 187. 
Hathorn i;. Stinson, iii. 412, 438, 443, 

444. 
Hathorne >*. Haines, iii. 351. 
llatHtat r. Packard, i. 018, 042. 
I laugh r. BIythe. ii. 90. 
Hauser c. Lash, ii. 45. 
Haven v. Adams, i. 290; ii. It.'J, 153, 
174. 203. 

V. B. & Wor. R. R., ii. 174. 

V. Foster, ii 207. 298; iii. 679. 

V. Hilliard, iii. 540. 

c. Wakefield, i 4h3. 
Havens r. Kout-dry, ii. 220. 

I'. Osborn, iii. 257. 

V. Van iJen Burgh, iii. 676. 
Haverstick r. Sipe, ii .305. 
Haverstick's Ai)peal, ii. Oil, 017. 
Hawes r. Humphrev, iii. 640, 574. 

V. Shaw. i. 593." 595. 0fK». 
Hawesville r. Lander, iii. 451. 
Hawhe V. Snvdaker, ii. 210, 211. 230. 
Hawk V. MeCullough, iii. 519. 524. 

r. Sensemun, iii. 144. 
Hawkes r. Brigham, ii. 254, 281. 

r. Pike. iii. 312. 
Hawkins c. Barney, iii. 00. 

V. Clermont, ii. 09. 

f. Kent, ii 707. 

r. King. ii. 134. 

V. Lee, ii. 057. 

i". Skeggs, i. 141. 
Hawks V. Hawks, i. 355. 
Hawksland r. Gatehel, iii. 303. 317. 
Hawlev r. Bradford, i. 210. 300. 

r. James, i. 210, 214, 307; n. 688. 

r. Northampton, i. 110; ii. 763,760. 
Hay V. Cohnes Co., ii. 381. 

v. Coventry, ii. 03O, 781. 

V. Cumberland, i. 505. 

V. Mayer, i. 176; ii. 721. 

r. Watkins, ii. 725. 
Hayden v. Bradley, i. 622. 

V. Dutcher, ii. 305. 

V. Merrill, i. 090. 

r. Smith, ii. 196. 

V. Stoughtnn, ii, 7, 12, 13, 10; iii. 
658, 559, 500. 
Hayes v. Bickerstnff, i. 621. 

r. Bowman, iii. 430. 

r. Foorde, ii. 049. 

V. Kershow, ii. 443. 445, 461. 

f. Livingston, iii. 78. 

V. Shattuck, ii. 203. 

V. Tabor, ii. 474, 498. 605. 

r. Ward, ii. 224, 2l'8. 
Havford i-. Spokesfleld, ii. 357,358, 300. 



Ixxiv 



TABLE OF CASES CITED. 



Hayne v. Cummings, i. 501, 518. 

V. Maltbv, iii. 104. 
Hayner v. Smith, i. 5G1, 564. 
Haynes v. Bennett, iii. 267. 

V. Boardman, iii. 157. 

V. Jackson, iii. 431. 

V. Jones, iii. 178. 

V. Meek, i. 458. 

V. Powers, i. 289. 

I'. Seachrest, iii. 278. 

V. Wellington, ii. 126, 260. 

V. Wells, ii. 305. 

V. Young, iii. 493, 506, 629. 
Hays V. Askew, iii. 111. 

V. Doane, i. 29. 

V. Jackson, iii. 20. 

V. Lewis, ii. 123. 

V. Riciiardson, i. 36, 667; ii. 450. 
Hayward v Angeil, ii. 22. 

V. Cain, ii. 510. 

V. Howe, i. 106. 

V. Sedgley, i. 616. 
Haywood v. Enslej', ii. 545. 
Hayworth v. Worthington, ii. 53. 
Hazard v. Eobinson, ii. 346, 357. 
Hazen i-. Barnett, i. 720. 

V. Thurber, i. 293. 
Hazletine r. Case, ii. 367. 
Hazleton v. Lesure, i. 229. 

v. Putnam, i. 666, 672, 673. 
Hazlett V. Powell, i. 562, 576. 

r. Sinclair, ii. 298, .300; iii. 494. 
Head i\ Egerton, ii. 88. 
Headlam v. Headley, iii. 450. 
Headley ''. Goundrav, ii. 101. 
Heald v. Heald, ii. 607. 
Healey r. Alston, ii. 560. 
Heap V. Barton, i. 32, 467. 
Heard v. Baird, ii. 83, 84, 85, 573. 

V. Downer, i. 402. 

r. Evans, ii. 118, 194. 

V. Fairbanks, i. 12. 

V. Hall, iii. 83, 123. 
Hearle v. Greenbank, i. 173, 177. 
Hearn v. Tomlin, i. 626. 
Heath v. Barmore, ii. 807. 

V. Bishop, ii. 533. 

V. Lewis, ii. 10. 

r. Vermeden, i. 591. 

V. West, ii. 227. 

V. WHiite, i. 186, 187, 188, 189. 
Heatherly v. Weston, i. 491. 
Heaton v. Findley, i. 34. 
Hebron r. Centre Harbor, ii. 55, 59. 
Hebron Grav. Co. v. Harvey, ii. 872, 

377. 
Heburn v. Warner, ii. 49. 
Hedden v. Crowell, ii. 199. 
Hedge r. Drew, i. 499 ; iii. 311. 

V. Holmes, ii. 272. 
Heed v Ford, i. 234. 
Heermans v. Burt, ii. 577. 

V. Robertson, ii. 579. 

V. Schmaltz, ii. 548. 



Heflin v. Bingham, i. 16. 
Hegan v. Johnson, i. 622. 
Hegeman v. McArthur, i. 557, 559,564, 

582, 583. 
Heid V. Vreeland, ii. 220. 
Heilbrun v. Hammond, ii. 199 
Heiskell v. Powell, ii. 518. 
Heist V. Baker, ii. .36, 90. 
Heistcr v. Fortner, iii. 339. 

V. Green, ii. 90. 

V. Maderia, ii 54. 
Helfenstein r. Cave, i. 420. 
Helfenstine v. Garrard, ii. 478. 
Helfrich i". Weaver, ii. 279. 
Hellawell v. Eastwood, i. 23. 
Heller ;•. Meis, ii. 12.3. 
Helm V. Helm, i. 365. 

r. Vogel, ii. 218. 
Helmer v. Castle, iii. 449. 
Helms V. May, i. 40 ; iii. 336. 

V. O'Bannon, iii. 340. 
Helps V. Hereford, iii. 105. 
Helwig V. Jordan, i. 571. 
Hemenway v. Cutter, i. 6. 
Hemingway i\ Scales, i. 343, 706. 
Hemphill v. Flynn, i. 636, 651. 

V. Giles, i. 637. 

V. Ross, i. 107, 109. 

r. Tevis, i. 618. 
Henagan v. Harllee, i. 231 ; ii. 207. 
Henchliff v. Hinman, iii. 305. 
Hencke v. Johnson, iii 500. 
Hendee v. Pinkerton, iii. 289. 
Henderson r. Easoii, i. 696. 

V. Herrod,ii. 126, 127, 129. 

V. Hunter, ii. 16, 25, 26, 674. 

V. Mears, i. 561. 

V. Ownb}', i. 7. 

V. Pilgrim, ii. 64, 121, 126, 154. 
Hendrick v. Lindsay, ii. 219. 
Hendricks v. Johnson, ii. 370 

V. Rasson, iii. 312. 

V. Spring Valley Mg. Co., ii. 381. 

v. Stark, iii. 494, 606. 
Hendrickson r. Wooley, ii. 162. 
Hendrickson's Appeal, ii. 166. 
Hendrix v. McBeth, i. 218. 
Hendrixson v. Cardwell, i. 139. 
Hendv v. Dinkerhoff, i. 10. 
Henkle /■. Allstadt, ii. 212. 
Hennen v. Wood, iii. 204. 
Hennesey v. Andrews, ii. 64. 
Hennessy v. Patterson, ii. 586, 587, 589, 

591, 597, 625, 641, 650, 658. 
Hennesy v. Old Colony R. R., iii. 108, 

452. 
Henning v. Burnet, ii. 318, 353, 354. 

V. H.Trrison, ii. 9 
Henry v. Confidence Co., ii. 192. 

J). Davis, ii. 42, 45, 46, 65. 

V. Tupper, ii. 22, 23. 
Henry's case, i. 286 ; ii. 222. 
Henshaw v. Bissell, iii. 88. 

V. Clark, ii. 404. 



TABLE OF CASES CITED. 



Ixxv 



Henshaw v. Mullins, iii. 43.']. 434. 

r. Wi'lls. li. 107. 117. 14:5, 231. 
IKiisoii c. Moort'. i 171. 2Ul. 
Ilf|il>urii >'. DtiWois. iii. 'HM. 

V. Ilepliurn, ii. o>>(i. 
Herbert r. Kroam. i. \l'-l. 

V. Iliinritk. ii 17(3. 

r. Wrtii, i. Ml, ■ni. .•{34, 335, 330. 
Ilonliiian r. Mratteii. iii. 31h. 
llcTiiiitiine r romkins, iii. 101, 120. 
licriiiiijii V. ivitnbiill, iii. o3U. 
IK-rne r. Beinliow, 1. 100. 
llcrr's ICstiite, ii o'J4. 
Ui-rrick r. Atwnoil. ii. 87. 

V. (Iraved, i. :JH1, 460. 

I'. .Mnlin, iii. lioi). 
Ilfrriii),' r. Kisiiur, iii. 448. 

V. n'oo.lluiil, ji. 107. 
Ilcrrolil V. Uei'ii, i. 3o8. 
llerroii /•. Ihrron. ii. 63. 

r. Williiimson, i. 2.'J5. 
IIorsrlifcl.lt '• (iLM.rKc. i. 422; iii. .357. 
llerski-11 V. Huslmell, i. 0U4. 000, 00b. 
llfrtell r. Van Bureii, ii. 718. 
IK'ss r. Ile.ss, ii. 78.3. 

I'. Xewcoiiitr, i. 574. 

V. SiiijtkT, ii. 550. 
Hesseltinc r. Sl-hvov, i. 570, 582. 
Hester r. Kenibroujih, iii 211. 
HetfieM r. (Viitral H. R.. i. r,05. 
Hetii 1-. Cocke, i. 210, 201. 304. 

V. RiclmiDinl, ii. 500. 
IletliringtDii iv Graliain, i. 25.3. 
Ileuliiigs r. Kielile, ii. 3.j0 
Hewitt, K.r jxirti, i. ;555. 

V. Looseiiiore. ii. 88. 

V. Haiikin. i. 701 ; ii. 112. 

I'. Tem|)Ieton, i. 418, 434 ; ii. 80. 
Hewlett 1-. \V(iu(l, i. 728. 
Hewlins c .Sliippam, i. .37, 121,06.3,006, 

072; ii. .31.3, 31f,. 
He.\t r. (Jill. ii. 341. .3S». 
Hexier r. Knox, i. 52;5 
Hey r. Bniiier, i. 31. 

r. Mocirhouse, i. 052, 054. 
Heyer i-. Pniyii, ii. i;»l, I'.tii, 266. 
Heyinan r. Lowell, ii. 203. 
Hey.-liain -•. Dettre, i. 2!». 
Heywanl v. C'utlibert, i. 2'.t2. 

f. .JikM, ii. 77, 80. 110, 275. 

V. New York, i. 70; iii. 224, 226. 
Ileywooil r. HiUlretli, iii. 320. 

V. .Maunder, ii. 773. 

r. Tillotson, ii. 375. 
Ilibbanl c Hiirlbiirt. iii. 424. 

I'. Lam be, ii 658. 
IMbblewliite i*. McMorine, iii. 254. 
Hickman r Irvine, i. 148, 21U. 

V. Hayle, i. 537. 
Hickox 1-. Lowe, ii. 40, 61, 62. 
Hicks r. Bell, ii. 406 ; iii. 200. 

I'. Brigliain, ii. 176. 

r. riiapman, i. 489. 

V. Coleman, iii. 160, 168, 432, 487. 



Hicks V. Cram, iii. 78. 

V. Dow ling, i. 64.S, 640. 

V. Hickit, li. 6H, r,t|. 

r. Siilinian. ii. 37H. 304. 
HickHoii ('. Bryan, i. 402. 
lii<lilen ''. .Ionian, ii. 514. 
Hide r. 'riiornboningli, li. 381. 
Hiern r. Mill, ii. ^tM. 
Hiester r. Creen, ii. 30, 91. 

c. .Maderia, ii. (i3. 

r. SiliaiOer, ii. 204. 
HiglH'e 1-. Kice, i. 001 ; iii. 142, 214, 217, 

.327. 
Higbie V. WeHtlake. i. .30(). 
lliggiiibotliam v. Cornwell, 1. 334, 336. 

3o0. 
Higginbottom i'. Short, i. 711, 718. 
lliggins r- Breen, i. 222. 

f. Flemington Water Co., ii. 3ri7. 

V. lliggins, i. 368. 386 ; ii. 60». 

r. Ku>terer, i. 4. 
Higginson v. Mein, iii. 219. 
Higb r. Batte, ii 04. 
Higiiam r. Kabett, ii. 350, 351. 
llilbourn v. Fogg. i. 5'.K», 603,694, 014. 
Hildebrand v. Kogle, iii. 429. 

V. Taylor, i. 442. 
Hildretb r. Conant. i. 017. 

v. Jones, i. 230, 242. 

r. Thompson, i. 201, 204, 315. 
Hileman i*. Bouslaugh, ii. 050. 
Hiley r. Bridges, i. 350. 
Hill V. Bacon, iii. 402,611. 

r. Bui lev, ii. 535. 

V. Barclay, ii. 22, 28. 

I'. Baron, ii. 588. 

V. l)e Kochniont, i. 20, 610. 

V. Dver. iii. 218. 

V. Edwards, ii. 47. 102, 123. 

V. Epley, iii. 81, 82, 85, 80, 88, 335 

V. (ribbs, i. 551. 
'v. Hill, i. 378,411,003; iii. 866. 

V. Jordan, i. (318; ii. 144. 

V. Josselyn, ii. 6<i7. 

V. Kessler, i. HijG. 

V. Lord. iii. 447, 448. 473. 

I'. Meeker, iii. 345. 

V. Movers, i. (•.03 ; iii. 82, 248. 

r. Miller, iii. 205. 

V. Mitchell, i. 279. 

I'. Moore, ii. 133. 

I'. Mowry, iii. 42.3. 

V. UolHjrtson, ii. 106. 

V. Koderick, ii. 5»0. 

V. Saunders, i. 504. 

V. Sewald. i. 27. 28, 81. 

I'. Smith, ii. 170. 

r. Wentworth. i. 28. 29. 

i;. We-<t. ii. 146; iii. 12a 

r. Woo<lnian, i. 500. 
Hillary r. (Jay, i. 0.V3. 067. 

r. Waller, ii. 357. 
Ililleary c. Hilleary. ii. 741. 
Hillhouse r. Chester, iii. 14. 



Ixxvi 



TABLE OF CASES CITED. 



Hillhouse v. Mix, i. 699. 
Billiard v. Allen, ii. 246. 

V. Binford, i. 336, 337. 

V. Scoville, i. 710. 
Hilliary r. Hilliary, ii. 741. 
Hills V. Barnes, iii. 259. 

V. Bearse, iii. 273. 

V. Dey, i. 718. 

V. Eliot, ii. 51, 521. 

V. Loomis, ii. 54. 

V. Miller, ii. 312, 326. 

V. Simonds, ii. 607. 

V. Thompson, i. 537. 
Hillyard v. Miller, iii. 557. 
Himmelmann v. Sclimidt, i. 400, 430. 
HinchcliffiJ. Hinman, iii. 342. 
Hinchman v. Emans, ii. 206. 

V. Stiles, i. 206. 
Hinckley ;-■. Baxter, i. 5, 10. 
Hinckley Co. v. Black, i. 5, 6, 7, 22, 23. 

V. Lyon, ii. 766. 
Hinde v. Longworth, iii. 356. 
Hinds V. Allen, ii. 249. 

V. Ballou, i. 230, 239 ; ii. 122, 123, 
137. 

V. Mooers, ii 129. 
Hindson r. Kersey, iii. 540. 
Hine v. Kobbins, iii. 338. 
Hines v. Frantliam, i. 699. 

V. Roliinson, i. 694 ; iii. 101. 

V. Rutherford, iii. 154, 157. 
Hingham v. Sprague, i. 620. 
Hinkley v. Greene, i. 691. 
Hinman v. Booth, iii. 321. 
Hinsdale r. Humphrey, i. 518 ; ii. 293 ; 

iii. 332. 
Hinson v. Partee, ii. 54. 
Hinton v. Milburn, ii. 588, 592, 611, 617. 
Hintze v. Thomas, i. 525. 
Hipp L'. Hackett, iii. 331. 
Hirschman ;•. Brashears, ii. 708. 
Hitchcock V. Carpenter, i. 247. 

V. Harrington, i. 237, 238, 289, 246, 
247, 287 ; ii. 169. 

V. Skinner, i. 716. 
Hitchens i-. Hitchens, i. 205, 269. 
Hitchman v. Walton, ii. 141. 
Hitner v. Ege, i. 183. 
Hitt V. Holliday, ii. 181. 
Hittenger v. Eames, i. 4. 
Hoag V. Hoag, i. 594. 

V. Wallace, iii. 164. 
Hoback v. Hoback, i. 457. 
Hobart v. Sanborn, ii. 107. 
Hobbs V. Bliindford, i. 185. 

V. Fuller, ii. 272. 

V. Harvey, i. 301. 

V. Lowell, iii. 80. 

V. Norton, iii. 91. 
Hoboken Land & Imp. Co. v. Kerrigan, 

iii. 418, 450. 
Hobson V. Hobson, ii. 50. 

V. Roles, ii. 123. 

V. Trevor, ii. 677. 



Hockenbury v- Snyder, i. 594. 
Hocker r. Gentry, ii. 520. 
Hocking County, Section 16, &c.. Trus- 
tees of, V. Spencer, i. 518; ii. 29.3. 
Hodge V. Amerman, ii. 149 ; iii. 336. 

V. Boothby, iii. 446, 448. 
Hodgeden v. Hubbard, i. 656. 
Hodges i: Eddy, iii. 101, 138, 147, 159, 
166, 167. 

V. Shields, i. 589, 597. 

V. Tenn. Mar. & F. Ins. Co., ii. 45. 

V. Thayer, iii. 527. 
Hodgkins v. Robson, i. 559. 
Hodgkinson, Petitioner, i. 716. 

V. Ennor, ii. 377. 

V. Fletcher, iii. 151. 
Hodo V. Johnson, i. 401, 402. 
Hodson V. Treat, ii. 250, 266. 
Hoff V. Bauni, i. 638. 
Hoff's Appeal, ii. 218. 
Hoffar r. Dement, i. 684. 
Hoffey r. Carey, ii. 50. 
Hoffman v. Antliony, ii. 72. 

r. Armstrong, i. 13. 

V. Lj^ons, i. 686. 

r. Keuhaus, i. 412. 

v. Porter, iii. 279. 

V. Savage, i. 319 ; ii. 346. 

V. Stigers, i. 343, .344, 678, 709, 714. 
Hoffman Steam, &c. Co. v. Cumberland 

Coal, &c. Co., ii. 522, 52.3, 526, 570. 
Hoffstetter v. Blattner, i. 690. 
Hogan V. Harly, i. 600. 

V Jaques, ii. 53, 513, 515, 533. 

V. Manners, i. 872. 

V. Page, iii. 279. 

V. Stone, ii. 234, 245. 
Hoge i\ Hoge, ii. 526 ; iii. 566, 568. 
Hogel V. Lindell, ii. 5.3. 
Hogg V. Gill, ii. 341, -346. 
Hogsett V. Ellis, i. 624, 625, 627, 652. 
H.)it V. Underbill, i. 488. 
Hoitt V. Webb, i. 377, 392 ; ii. 102. 
Holabird v. Burr, ii. 235. 
Holbert v. Edens, iii. 436, 443. 
Holbrook v. Betton, ii. 43. 

V. Bliss, ii. 253, 280. 

V. Chamberlin, iii. 305. 

V. Finnev, i. 230. 

r. Tirrell, iii. 325, .326. 

V. Young, i. 546, 614. 
Holcomb V. Corvell, i. 688, 689. 

V. Holcomb, ii. 264, 265, 269. 

V. Lake, iii. 562. 
Holcroft V. Heel, ii. 334. 
Holden v. Fletcher, iii. 601. 

V. Pike, ii. 204, 212, 215. 

V. Pinney, i. 367, 382, 384, 446. 
Holder ?-. Coates, i. 14. 
Holderby r. Walker, ii. 782. 
Holdship V. Patterson, ii 533. 
Holford V. Hatcl). i. 529, 542, 545, 546 

V. Parker, iii. 317, 324. 
Holifieldu. White, i. 605. 



TABLE OF CASEH CITED. 



Ixxvii 



H .ILidiiv r. Daily, iii. 273. 
Holland r. ("ruft. i. lib. 

c. Hodgson, i. 'J;! ; ii. HI. 

r. .Moon, iii. -'■'>. 

V. lvoj;tM>, ii. -ItiT, IT'J. 
IIolk'Ml.eck r. Kowley, iii. 4 JO, 451. 
Hollclt r. rojiL', ii. 7ij:5, 704. 
llolley V. llawley. iii. llJi*. 154, 339. 

r. Yoiini,', i. 4»V.», 481. 
llollidiiy c. .\rtliiir, ii. i>5, 51. 

r. KraiiKliii Hank, ii. 151. 
II >Hins r. Vi-rnoy, ii. o4.'!, 0I5. 
llollinslicad'.s Appi-al, ii. 530. 
Ilullis I', liiirns, i. *'>43. 

V. Hayes, ii. 518. 

V. Tool, i. 030, 031. 047, 000. 
Hollistor 1: Dillon, ii. 170. 

V. Sliaw, ii. 712. 

i". Younj;, iii. 152. 
Holloman r. Holloinan, i. 286, 308. 
HoUoway v. (jalliac, i. 000. 
Hollv V. Brinvn, i. til7. 
Holiiian <•. MaiJoy, ii. 100, 108, 180. 

r. Martin, i. 371. 
HoliiK'.s I' HfUinirliam, iii. 451. 

c. Hust. i. O'.Mi. 

V. Bl<i<,'tj. i. 4S8. 492. 

r. Buckley, ii. 290. 

V. Bvl)iL'. ii. 2(i2. 

V. Cieveland. ( '. C. U. R. Co., iii. 08. 

v. C();,'iiili, ii. ()89. 

V. Fisher, ii. 70, 209. 

1-. Gorint;, ii. 320. 349. 

V. (irant, ii. 51. 57, 59, 63. 

V. Holmes, i. 711. 

V. Mead, ii. 679 ; iii. 551, 650, 557. 

r. Sieley, ii 350. 

V. Stout, iii. 330. 

V. Treniper. i. 31, 32. 

r. Trout, iii. 320. 
Holms V. Seller, ii. .JIO. 
Holridge r. (;ilks!)ie, ii. 60, 68, 125, 206. 
Holrovd r. .Marshall, ii. 104. 
Holt <■. H.-niphill, iii. 230. 

r. Martin, i. 583. 

I'. Robertson, i. 095. 

r. Kees. ii. 109, 134, 179. 

V. Sarnent, ii. 348. 350, .309, 396. 

!•. Soniervillc, i. 7<l; ii 321 ; iii. 451. 
Ilolton '•. (loodricli, iii. 471. 

I'. MeiLTliiMi, ii. 53. 

V. Whitney, iii. 149, 158, 173. 
Iloltzapffel r. Baker, i. 521, 500. 
Home c. Kieiiards, iii. 43u. 
Home Life Ins. Co. t: Sherman, i. 567 ; 

iii. 511. 
Homestead cases, i. 355, 304, 878. 442. 
Homocliitto River Comm'rs r. Withers, 

iii. 224, 43'.t. 
Honeywooci r. Hoiieywood. i. 147. 
Honore r. Bakewell. ii. 92, 95, 97. 

V. Hutchiiiirs. ii. 40. 
Hool.errv >■. Hanlinir. ii. 407. 479. 498. 
Hood V. Adams, ii. 72, 79, 194, 281. 



Hood r. ICaston, ii. 284 

I'. Mutlier, i. 592. 
IIuotiin)(le V. AnderHon, 111. 2<>i. 
HooKlaiid V. Watt, i. 20;j. 
Hooker c Cumniiii^tt, iii. 4-39. 

r. Hooker, i. IsO. 205, 200. 

r. New Haven & N. Co., iii. 226. 

r. L'tica, &.C. Tump. Co., ii. NXi. 
Hoole r. Attoniey-(!enera!, ii. 153. 
HooiKT. I'.x jinrt,, ii. 87. 

V. Clark, ii. 2'.»9. 

V. Cummiiij,'H. ii. 15, 10, 19. 

i". l-'arnsworth, i. 400. 

V. RaiMsliottoin, iii. 322. 

r. Scheimer, iii. 211. 

r. Wilson, ii. 100. 
Hoopes V. Bailey, ii. 02, 189. 
Hoot(jn r. (irout, ii. lol, 145. 
Hoots r. (irahatn, i. 057. 
Hoover v. Cirej^ory, iii. 18, 578. 

V. Samaritan Soc. ii. 700. 
Ilopcraft V. Kevs, i. 594. 0(K). 
Hope r. Rusha; ii. 703. 708. 709. 

V. Stone, ii. 98, 514 ; iii. 104, 509, 
513. 
Hope's Appeal, ii. 401, 402, 403; iii. 

364. 
Hopkins i\ Garrard, ii. 92. 

V. Glunt. ii. 550. 

V. Hopkins, ii. 420, 429, 443, 488, 
491.037. 748, 749. 

r. Jones, ii. 275. 

I'. Stephenson, ii. 2;}8. 

V. Ward, ii. 2(i7. 
Hopkins Academy i-. Dickinson, iii. 04, 

437. 4.39. 
Hopkinson v. Dumns, i. 213; ii. 513, 
517, 540, 500. 

V. McKnight, iii. 518. 
Hopper r. Demarest, ii. 657. 

V. Hopper, i. 288. 

V. Parkinson, i. 423. 
Hopping !•. Burnam, iii. 844. 
Horlock r. Smith, ii. 210. 
Horn V. Keteltas, ii. 53, 644. 

I'. Tufts, i. 377. 392, 394, 408, 440. 

c. Wiatt, i. 415. 
Hornheck i-. Westbrook. iii. 281, 472, 

473. 
Hornby r. Iloidditeb. i. 526. 
Horner /•. Leeds, i. 471. 694. 

V. Watscm. ii. ;584. 
Hornscy v. Cnsey, i. 335. 
Horsefall i-. Mather, i. 5;i7. 
Horsey v. Horsey, ii. 11. 
Horsford v. Wripht, i. 505. 
Horsley i-. Gartli, iii. 338. 
Horstman v. Gerkin. ii. 102. 
Ilorton >•. Crawford, iii. 190. 

r. Horner, ii. 97. 

t'. Horton. ii. 499. 

r. Sledge, ii 400. 481. 591 ; iii. 88a 
Horwitz r. \i>rri«. ii. 7'^>. 
Hosford V. Bnlhinl, ii H». 



Ixxviii 



TABLE OF CASES CITED. 



Horsford r. Merwin, i. 737. 

f. iSichols, ii. 250. 
Hosie V. Gray, ii. 249. 
Hoskin v. Woodward, i. 25 ; ii. 115, 

1-10, 163. 
Hoskins v. Hawkes, ii. 142. 

V. Litclilield, i. 434, 449. 

V. Rhodes, i. 008. 
Hotchkiss V. Brooks, i. 360. 

V. Eltiiig, ii. 576, 701. 
Hotel Co. V. Marsh, i. 126. 
Houell r. Barnes, ii. 502. 
Hough v. Bailey, ii. 49. 

V. Birge, i. 624. 

V. De forest, ii. 196. 

V. Osborne, ii. 123. 
Hougliton V. Hapgood, i. 35, 174, 309 ; 
ii. 224, 541. 

V. Jones, iii. 342. 

V. Marshall, i. 442. 
Hounsell v. Smyth, i. 573. 
Houpes V. Alderson, ii. 354. 
House V. Burr, i. 469. 

v. House, i. 16. 27, 131. 

V. Jackson, ii. 596. 

V. Metcalf, i. 571. 
Houser v. Eeynolds, i. 489. 

V. Laniont, ii. 46, 61. 
Houston V. Blackman, iii. 356. 

V. Laffee, i. 663, 665. 

V. Sneed, iii. 96. 

V. Stanton, iii. 312. 
Houx V. Batteen, iii. 152. 
Hovey v. Hobson, i. 486 ; iii. 263, 264, 
266. 

V. Newton, iii. 495. 

V. Sawyer, iii. 434. 
How V. Alger, ii. 321 ; iii. 109. 

V. Vigures, ii. 41. 
Howard v. Amer. Peace Soc, iii. 554, 
567. 

V. Ames, ii. 72, 78, 194. 

V. Candish, i. 296. 

V. Carpenter, i. 660. 

V. Carusi, ii. 783. 

V. Doolittle, i. 522, 566, 576. 

V. Ellis, i. 578. 

V. Fessenden, i. 6, 9. 

V. Francis, ii. 709. 

i\ Gresham, ii. 265. 

V. Handy, ii. 264. 

V. Harris, ii. 65, 67, 182. 

V. Henderson, ii. 467, 475. 

f . Hildreth, ii. 191. 

V. Howard, ii. 109, 133, 198. 

V. Hudson, iii. 89. 

V. Huffman, iii. 327. 

V. Maitland, iii. 110. 

t;. Merriam, i. 617, 618, 631, 637, 
643, 644. 

V. Priest, i. 209, 700, 701, 703, 704. 

V. Reedy, iii. 1.50, 172. 

V. Robinson, ii. 172. 

V. Shaw, i. 622, 624, 625, 627. 



Howard v. Wadsworth, iii. 46-5. 
Howard Ins. Co. v. Halsey, ii. 212. 
Howard Mutual Loan, &c. Fund i-. Me- 

Intyre, ii. 151 ; iii. 334. 
Howards r. Davis, ii. 78. 
Howe, Re, ii. 44, 86. 

V. Adams, i. 380, 397, 412, 426,427, 
444, 456. 

V. Alger, ii. 321 ; iii. 109, 420, 450. 

V. Bass, iii. 428. 

V. Batchelder, i. 11, 12, 665; iii. 
367, 369, 370. 

V. Dewing, iii. 311. 

V. Howe, iii. 263, 266, 313, .353. 

V. Lewis, ii. 109, 133, 178, 196. 

V. Russell, ii. 45, 55. 

V. "Wadsworth, ii. 141. 

v. Wilder, ii. 194, 197 ; iii. 325. 
Howell V. Howell, ii. 509, 512, 514. 

V. King, ii 351. 

V. Leavitt, ii. 114. 

V. Price, ii. 51. 

V. Richards, iii. 521. 

V. Saule, iii. 425. 

V. Schenck, i. 144. 
Howes V. Bent, i. 373. 
Howeth V. Anderson, i. 567. 
Howlaud V. Coffin, i. 527, 528, 530, 531, 
535, 552. 

V. Shurtleff, ii. 247. 

V. Vincent, i. 573. 
Hoxie V. Ellis, i. 313. 

V. Finney, ii. 101; iii. 508. 
Hoxsey v. Hoxsey, ii. 783, 784. 
Hoy 1-. Holt, i. 537, 569. 

V. Sterrett, ii. 334, 339, 341, 365, 
378. 
Hoye V. Swan, iii. 164. 
Hoyle r. Logan, iii. 351. 

i: Plattsburg, &c. R. R., i. 17, 18 ; ii. 
164. 

V. Stowe, i. 488. 
Hoyt V. Doughty, ii. 149. 

V. Howe, i. 427. 

V. Jaques, ii. 708. 

V. Kimball, i. 711, 712, 714; ii. 8. 

V. Martense, ii. 43. 

V. Stoddard, i. 555. 

V. Swar, i. 257 ; iii. 271. 
Hubbard v. Apthorp, iii. 510. 

V. Epps, ii. 535. 

1-. Harrison, ii. 123. 

V. Hubbard, i. 334 ; ii. 13, 18, 20, 70. 

V. Little, iii. 159. 

V. Norton, iii. 493. 

V. Savage, ii. 157. 

V. Shaw, i. 134; ii. 234, 235, 2i>9. 

V. Wood, i. 691. 
Hubbell V. Blakeslee, ii. 137, 197. 

V. Canady, i. 387, 417, 449. 

V. East Cambridge Sav. Bank, i. 22, 
26, 28. 

V. Warren, ii. 323. 
Hubble V. Wright, ii. 49. 



TAULK OF CASES CITED. 



Ilubscliiniin c. Alilliiiry, i. 7. 
IIud'„'iMS c. Wi.o.l, i. Cn'l. 
IJuilsoii /•. CucTi) L. Co., ii. 'MO. 

V. Hi- Villi, ii. I'.iK. 

V. Wliito. iii. 27(5. 
Hucv'b Apin'iil. 1. 4'13. 
llujfc. Karl, ii 5-_'3. 

V. McC.iiiIiv, i. m8; iii. .%7, n7 I. 

i>. .>rcl)oiiari, i. t.'.'.'). 
Huftalin r. Misuer, i (J'>S. 
Hughes, I'll- jxirte, ii. 85. 

r. Anderson, ii. 1578, 394. 

V. Ensien, iii. ;504. 

r. Edwards, ii. 8, 45, 101, i:54, 17:3, 
174, LS'.t, r.»i,2uy. 

V. Frisby, ii. IIJO. 

V. Graves, iii. 177. 

V. Holli lay, i. <)'.ni. 

V. llooil, i. 475, 505. 

V. Kearney, ii. 1*5, yO. 

t'. Lyi)n, ii. 81. 

V. Monty, iii. •'154. 

V. Palmer, i. 505. 

I'. Uobotliain, i. 580. 

I'. Slieaff, ii. GO. 

I'. Watson, i. 257. 

V. Wilkinson, iii. 326. 

V. Williams, ii. 234, 235. 

J'. Young, i. 524. 
Hughes .Minors Apj)., i. 489. 
Hurley V. (in-^'f, i. 240. 
Hulburt r. Emerson, i. 100, 109. 
Hiilet V. Inlow, i. 708. 
Hulick V. Soovil, iii. 197, 218, 282, 290, 

3(W, 310, 313. 
Hull V. Beals, ii. 057. 

i". Lyon, ii. 203. 

I'. Vauylin, i. 02(1 
Hull v"t Selby Ky., A'. , iii. 65. 
Hullain r. Munifile, i. 010. 
lluuiberston v. lluniborston, ii. G31. 
Hume r. Gos.sett, i. '.\^~. 
Huinc's I'. Scruji;;8, ii. 511. 
Hummer c. Scliott, ii. 05. 
Humphrey v. Uui.>^s(>n, ii. 123. 

V. I'lunny, i. 301. 

V. Wait. i. 577. 
Humpiiries v. Rrogdcn. i. 18, 10; ii. 341, 
381, 383, 384. 

V. Humpiiries, i. 143. 021. 
Huncher i' Whitney, i. 007. 
Hungerford v. Clay, ii. 145. 
Hunncwell c. Tayjor, i. 715, 710. 
Hunnicutt v. I'eyton, iii. 107. 

V. Summey, i. '•W.\. 
Ilunsden r. ("heyney, iii. 91. 
Hunt V. Acre, ii. 201. 

V. Bay State Co., i. 4, 10, 20. 

V. Beeson, ii. G. 

V. Cope, i. 557, 5t')0, .'>(J4. 

V. Dantbrth, i. 532, 533. 

V. Friedman, ii. 612. 

t>. Hall, i. 101. 

v. Harding, ii. 258. 



Hunt V. Hunt, ii. 121, 170, Jul, i, •, ■ i, 
5<)2 ; iii. 3h1. 

V. Jl)lm^on, i. 314. 

r. Ix-win, ii. 51, 273. 

r. .Maynard. ii. 53, 1:10,232. 

r. .Moore, ii. 515. 

r. .Morton, i. 035, 043. 

V. Kousmaniere, ii. 73, OHO, 718, 719, 
734. 

V. Stiles, ii. 128, 252. 

c. 'I'liompson, i. 551, 556. 

i; Waterman, ii. JHJ. 

c. Wicklifle, iii. 211,213. 

r. Wolfe, i. 550. 

V. Wrinht, i. 711, 715; ii. 10. 
Hunter r. IKinphill. iii. 204, 205. 

c. Hunter, ii. 145. 

i\ Law, i, 399. 

(• Marlboro', ii. 530. 

r. Martin, i. 701. 

r. ( )sterli<)udt, i. 514 ; ii. 21. 

r. Kiehardson, ii. 100. 

V. Sandy Hill Tru-stees, iii. 80. 

c. Watson, iii. 282, 330. 
Huntingdon r. Lyman, iii. 409. 
Huntington r. Aslur, ii. 313. 

V. ("otton, ii. 170. 

V. Havens, iii. 110, 111. 

V. Smith, ii. 122. 1 15. 

i;. Whaley. iii. 172. 
Huntington «5c Montjoy's case, ii. 402. 
Huntley v. HussuU, i. 147, 150, 163, 16C, 

102. 
Huntly r. O'Flaherty, ii. 215. 
Hurd V. Coleman, ii. 189. 

V. Curtis, ii. 297 ; iii. 402, 471, 502. 

r. Cusliing, i. 122. 

V. Darling, i. 005. 

r. Crant, i. 290. 

V. Kobinson, ii. 50, 1.58. 
Hurford v. Harned, ii. 54. 
Ilurlbut V. Leonard, ii. ;>.'j9. 

V. Tost. i. 480, 5<;5. 
Hurley r. Walton, i. 7(:tO. 
Hum r. Soper, iii. 342, 401. 
Hurst V. McNeil, ii. 470,549. 

V. Hodney, i. 5.31. 

V. Winehelsea, iii. 578. 
Huse ('. Morris, iii. 407. 
Iluson r. Young, ii. 354. 
Hiiss I'. Stephens, iij. 282. 
IIu^ton ('. Cantril, iii. 355. 

r. Leach, ii. ;>74. 
Hutch c. Bates, iii. .371. 
liutchings V. Huggins, i. 432; iii. 408. 

r. Low, iii. 2<i'.». 213. 
llutchins r Bvrncs iii. 251, 2.86. 

I-. Carlton", ii. 123. 205, 2<HV 

V. Hevwood. ii 474, 511, 532. 

V. Hibbard, ii. 1.37. 

c. Huggins, i. 448. 

f. King, i. 14. 

r. Miisterson, i. 23, 27, 28. 

r. Uuundtrev, iii. 527. 



Ixxx 



TABLE OF CASES CITED. 



Hutchins r. State Bank, ii. 119, 121, 

706. 
Huchiiison r. Chase, i. 094. 

V. Tindall, ii. 549. 

r. Kust, iii. 342, 347. 
Button V. Eenkard, ii. 713. 

V. Sfliumaker, iii. 161. 

1-. Warren, i. 144. 
HuxforJ V. Milligan, ii. 763. 
Huyler v. Atwood, ii. 219, 220. 
Hiiyser v. Chase, i. 031, 640. 
Hyatt V. Ackerson, i. 246. 

I'. Spearman, i. 361. 

V. Wood, i. 645, 649, 656. 
Hyde v. Stone, i. 694. 
Hyden v. Hyden, ii. 510. 
Hydraulic Works v. Orr, i. 573. 
Hyman v. Head, iii. 202, 217. 
Hyndman v. Hyndnian, ii. 54, 66, 78. 
Hynson v. Burton, ii. 532. 



Ihbs V. Richardson, i. G51, 652. 

Iddings V. Bruen, ii. 85. 

Ide r. Ide, i. 86 ; ii. 590, 753, 767, 768, 

783 ; iii. 565. 
Idle V. Cooke, i. 106. 
Iggulden V. May, i. 469. 
Igiehart r. Armiger, ii. 91. 

V. Crane, ii. 135, 212, 213, 215, 221, 
229. 
Illinois Cent. R. R. v. McCullougli, iii. 

322. 
Illinois & St. L. R. R. Co. v. Cobb, i. 

659. 
Inches v. Leonard, ii. 191. 

V. Hill, ii. 589. 
Incledon v. Nortlicote, i. 335. 
Indiana v. Milk, iii. 77, 86. 
Ind. State Bank v. Anderson, ii. 112, 

121, 123, 154. 
Ing V. Cromwell, ii. 107. 
Ingalls I'. Eaton, iii. 482. 

V. Plamondon, ii. 327, 333. 
IngersoU v. Sargeant, ii. 287, 301. 
IngersoU's Appeal, ii. 763, 768. 
Ingle V. Jones, ii. 716. 
Inglis I'. Sailors' S. Harbor, ii. 551, 564, 

743 ; iii. 553. 
Ingoldsby v. Juan, iii. 271. 273. 
Ingraham r. Baldwin, i. 589, 593, 600, 
632 ; iii. 26-3. 

V. Hutchinson, ii. 365, 378. 

V. Wilkinson, iii. 02, 439. 
Ingram ?•. Hall. iii. 291. 

V. Little, iii. 255. 

V. Morris, i. 217, 202. 

V. Smith, ii. 277. 
Ingwersen v. Rankin, i. 571. 
Inhabitants, &c. v. Huntress, iii. 242. 
Inman )• Jackson, iii. 564. 
Innerarity v. Mims, iii. 204. 



Innis r. Templeton, iii. 78, 269. 
International Bank r. Bowen, ii. 200. 
Ipswich Gram. Sch. Feoffees v. An- 
drews, iii. 217. 
Ireland v. Nichols, i. 404. 

V. Woolman, ii. 215. 
Irvin V. Smith, iii. 344. 
Irvine v. Irvine, ii. 563; iii. 117, 203, 
265. 

V. Marshall, iii. 199. 

V. McKeon, iii. 399. 

V. Wood, i. 570. 
Irwin V. Covode, i. 151. 

V. Davidson, ii. 90, 139, 176. 

V. Ivers, ii. 520. 

V. Phillips, ii. 405. 
Isaacs V. Gearhart, i. 620. 
Ischam r. ]\Iorrice, iii. 126. 
Isele V. Ailington Five Cents Sav. Bk., 
iii. 511. 

V. Schwamb, ii. 172. 
Isett V. Lucas, ii. 129. 
Isliam V. Bennington Co., iii. 280, 289, 

339. 
Israel v. Israel, i. 095, 698. 
Ithaca Church v. Bigelow, i. 35. 
Ivay V. Hedges, i. 577. 
Ives V. Allyn, iii. 566. 

i\ Ashley, ii. 524. 

V. Davenport, ii. 709. 

V. Ives, i. 656. 

V. Mills, i. 417, 448. 

V. Williams, i. 651. 
Ivory V. Burns, iii. 404. 
Ivy V. Gibert, ii. 81. 
Izard V. Bodine, i. 695. 
Izon V. Gorton, i. 575, 578, 637. 



Jackman v. Arlington Mills, ii. 367. 

V. Ringland, ii. 519. 
Jackson v. Aldrich, i. 617. 

V. Alexander, iii. 393. 

V.Allen, i. 515; ii. 17,21. 

V. Andrew, i. 152, 153, 158. 

V. Ayers, iii. 101, 127. 

V. Babcock, i. 664, 665, 666. 

V. Bard, iii. .303, 329. 

V. Berner, iii. 145. 

V. Blanshan, ii. 741; iii. 562. 

V. Blodget, ii. 127- 

V. Bodle, i. 499 ; iii. 309, 310. 

V. Bowen, ii. 116, 120; iii. 71. 

V. Bowles, i. 422. 

V. Bradford, iii. 117, 127, 381. 

V. Bra.lt, i. 622, 634. 

V. Brinckerhoff, iii. 105, 127. 

V. Bronson, ii. 123, 127, 134. 

V. Brown, ii. 630, 631. 

V. Brownell, i. 606. 

V. Brownson, i. 137, 147, 148, 515. 

V. Bryan, i. 002, 643. 



TAiti.r: or-' cAsiis ( hip. 



l>;\xi 



Jackson .-. Bull. i. 01 ; iii. 101, 118, 126. 
rj7. ;;28. i'Hij. 

J". Burctiiii, I. -IHtj; iii. 2G7. 

V. Busli, ii :U. 

V. L'n.lwull, ii. 4y(), 4«4 ; iii. 232, 377, 

3'.(;{, liM. 
V. CiirpeiitiT, i. 48ti ; iii. 206, 2G7. 
V. ("ary, ii. I'M, 4bU. 
V. Catlln, ii. 425; iii. 219, 227, 321, 

32 », 37U. 
V. Clni.se. iii. 2<K). 
V. Churcliiil, i. 288. 
V. Clark, ii. 81 ; iii 424. 
V. Cluvclniid, ii. 513; iii. 301. 
V. Coideii. iii. 334. 
V. Collins, i. 578, 002, 003. 
I'. Corliss, i. 504. 
V. Corv. iii. 281. 
V. Cralts, ii. 134, 170, 180. 
V. Crov, iii. 243, 2^8. 
V. Crysler, i. 514; ii. 20,21. 
V. Dashicl, ii. 703. 
V. Davis, i. 530, 5'J2 ; ii. 183, 170. 
V. Defeiiilorf, iii. 427. 
V. DfhiLToi.x, i. 47!». 480, 482. 
V. Dclancev, iii. 3'.»3, 3y5, 3'.)0. 
V. De LanJv, ii. 14t), 6;J0, 5'JO. 
r. Hewitt, i". 235, 237. 
V. Deyo, i. 0:!2 ; ii. 673. 
r. Dickeiisoi), iii. 328. 
J'. iJillon, iii. 3!»1, 3y2, 894. 
V. Duliois, ii. 155. 
V. Diuilap, i. 400; iii. 310. 318. 
V. Dunsbagli. ii. 444. 480. 484, 007. 
r. Dysling, ii. 358; iii. \ib. 
V. Etldy, i. 503. 
V. Eilwarils, i. 217. 
V. Eldri.l^H'. i. 481. 
V. Elstun, iii. 1G8. 
r. Farmer, i. 650, 659. 
V. Feller, ii. 617, 618. 
r. Fish, ii. 480; iii. 384. 
V. Florence, iii. 393. 
V. Ford, ii. 64. 
V. Fuller, ii. 117. 
V. Gardner, i. 670, 584. 
r. Garnsey, iii. 358. 
r. Gilchrist, i 310; iii. 268, 269. 
V. Given, ii. 554. 
I'. Green, ii. 47. 
I'. Harder, i. 720. 
V. Harper, i. 4'.t2. 
V. HarriIl^;toll, ii. 347. 
V. Harrison, i. 512, 613. 
V. Hart. iii. r.'6. 
V. Hathaway, iii. 411, 418, 449. 
V. Havner, iii. 298, 347. 
V. Heiiry, ii. 80; iii. 354. 
V. Hixon. i. 2h0 
f. Hobhouse, iii. 583. 
V. Hoffman, iii. 110. 120, 121, 122 
f. HoUoway. iii. 572. 
V. Hopkins', ii. 110, 117. 
V. Housell, i. 90. 

VOL. I. — / 



Jackson c. Howe, i. 01 ; iii. 104. 
V. Hubble, iii. 117, 3^1. 
r. IIikIhom, iii. 190. 
V. Hull. ii. 171. 
I'. Humphrey, iii. 334. 
V. Ireland, iii. 1 11. 
V. Jackson, iii. 17, 537, G<39. 
V. Jansen, ii. 704. 
r. JohnMon. i. 181, 182, 183, 184, 

180, 187, 188. 189. 
r. Kip. i. 228. 512; ii. 711. 
V. KisKclbrack. i. 481. 
r. Lan^head. i. 530. 
r. La« ton, iii. 210. 
V. Leek. iii. . 'WO. 311, 344, 893. 
v. Len^rett, iii. .■>j'J2. 
V. Leonard, iii. 150. 
r. Livint^ston. i. 087. 
V. Luiin, i. 79. 
V. Mancius, i. 126, 132. 
i". Martin, iii. 504. 
V. Massacluisetts Ins. Co., ii. 173. 
I'. Matsdorf. ii. 517 ; iii. 119. 
V. McCall, iii. 450. 
r. McKenriy. ii. 444, 445. 
I'. McLeod, 1. 086, 630, 051. 
i;. Merrill, i. 91. 
V. Miller, i. 500, 622, 032. 
r. .Mills, iii. 120. 
V. Minkler. ii. 110. 
V. .Moore, ii. 649; iii. 174, 175, 525. 
V. Morse, i. 056. 
I'. .Murray, iii. 90, 101, 118. 
f. Myers, i. 89, 122, 481 ; ii. 437, 

480. 
V. Neely, iii. .347. 
r. Newion. iii. 156. 104. 
V. O'Donajjhy. i. 316. 
V. Opden. iii. 90. 
V. Osborn, iii. 259. 
I'. Parkhurst, i. 049, 652. 
V. Peek, iii. 121. 
V. Pesked, ii. 805. 
V. Phillips, i. 81 ; ii. 701, 702, 779, 

781 ; iii. 203, 661, 66.3. 656, 650, 

557. 
V. Phipps, iii. 301, 810.311. 
V. Pierce, i. 024 ; ii. 673. 
V. Pike, iii. 303. 
V. Porter, iii. 199. 
I'. Potter, iii. 679. 
V. Ramsay, iii. 328. 
1-. Peeves, iii. 433. 
r. Held. i. 377, 424. 
r. Richards, i 4!tO; iii. IfiO. .Sll. 
r. Roberts, iii 242, 243, 304.311. 
V. Robins, ii. 783. 
V. Root, ii. 480. 
V. Rounsevilte. i. 35. 
r. Rowland, i. 580, 692, 504 ; Iii 

321. 
t. Rutledge. i. .352. 
V. Sackett. ii. 108. 
1-. Salmon, i. 036. 



Isxxii 



TABLE OF CASES CITED. 



Jackson i: Scliauber, ii. 555, 704. 

V. Schoonmaker, i. 132, 469 ; ii. 807 ; 

iii. 159, 161, Ibo, 164, 299, 334, 

347, 393. 
V. Schutz, i. 54. 
V. Sebring, ii. 451, 484 ; iii. 393, 

395. 
V. Selliek, i. 182, 184. 
V. Sharp, iii. 170. 
V. Sheldon, i. 516, 639 ; iii. 318, 

321, 322. 
f. Shepard, iii. 235. 
V. Sisson, iii. 280. 
V. Slater, ii. 193. 
V. Spear, 1. 594. 
V. Staats, ii. 445. 
V. Stacey, ii. 350. 
t'. Stackhouse, ii. 117. 
V. Stanford, iii. 288. 
V. Stevens, i. 343 ; iii. 119, 275, 

498. 
r. Stewart, i. 592. 
V. Stiles, i. 592. 
V. Sublett, ii. 600. 
V. Swart, ii. 445 ; iii. 397. 
V. Tibbitts, i. 147, 153, 690. 
V. Topping, ii. 17 ; iii. 562. 
V. Town, iii. 358. 
V. Turrell, ii. 141. 
V. Van Corlaer, iii. 96. 
V. Van Dalfsen, ii. 570. 
V. Vanderheyden, i. 314; iii. 123, 

243, 275. 
V. Van Hoesen, i. 124. 
V. Van Slyck, ii. 573. 
V. Van Zandt, i. 116. 
V. Veeder, ii. 714. 
V. Vermilyea, iii. 412. 
V. Vincent, i. 126, 598, 602. 
V. Vosburg, i. 720. 
V. Waldron, ii. 753, 777 ; iii. 117. 
V. Walker, ii. 532. 
V. Walsh, ii. 77, 570. 
V. Warford, iii. 162, 163. 
V. Warren, ii. 107, 153, 177, 263. 
V. Wendell, iii. 287. 
V. Wheat, iii. 146, 174. 
V. Whedon, i. 592. 
V. Wheeler, i. 602, 603. 
V. Whitbeck, i. 691. 
V. Wilcox, iii. 205. 
V. Willard, ii. 101, 123, 145, 171. 
V. Winslow, iii. 203. 
V. Wood, iii. 199, 287, 327, 332. 
V. Woodruff, iii. 164, 160. 
V. Wright, i. 313; iii. 105, 118, 119, 

370. 
Jackson County v. Philadelphia, W., & 

B. R. R. Co., i. 669. 
Jacobs V. Allard, ii. .367. 
V. Iklorange, iii. 92. 
Jacoway ?•. Gault, ii. 150; iii. 334. 
Jaffe V. Harteau, i. 576. 
Jakeway v Barrett, iii. 166, 443. 



Jamaica Pond Aq. Co. v. Chandler, i 
472 ; ii. 356, 358 ; iii. 375, 414, 435, 
465, 466 
James v. Allen, iii. 549. 

V. Brown, ii. 135. 

V. Dean, i. 618. 

V. James, ii. 506, 580. 

V. Johnson, ii. 64, 68, 154, 202. 

V. Morey, i. 289, 241 ; ii. 45, 202, 
204, 561, 562. 

V. Plant, iii. 387. 

V. Stull, ii. 77. 

V. Thomas, ii. 67. 

V. Vanderheyden, iii. 321 

V. Wj^nford, ii. 793. 
Jameson v. Smith, ii. 704. 
Jamieson v. Bruce, ii. 107. 

V. Millemann, i. 666, 671, 672. 
Jamison v. Dimock, iii. 248. 

V. Glascock, ii. 522, 569. 

V. Perry, ii. 175. 
Janes v. Jenkins, ii. 3.33 ; iii. 492, 506. 

V. Throckmorton, ii. 535. 
Janvrin v. Janvrin, iii. 337. 
Jaques v. Gould, i. 548, 550, 567. 

V. Methodist Church, iii. 315. 

V. Sliort, i. 530, 531. 

V. Weeks, ii. 45, 47, 40, 64. 
Jarechi v. Philh. Soc, i. 29. 
Jarrett v. Tomlinson, iii. 352. 
Jarvis v. Dutcher, ii. 89. 

V. Russick, iii. 222. 

V. Whitman, ii. 229. 

V. Woodruff, ii. 189. 
Jason I'. Eyres, ii. 67. 
Jauretche v Proctor, ii. 9. 
Javne r. Gregg, iii. 317. 
Jeffers v. Radcliff, i. 688. 
Jefferson College, Trustees of, v. Dick- 
son, ii. 106, 207 ; iii. 63. 
Jefferson County Bldg. Ass. v. Heil, iii. 

309. 
Jeffersonville v. Ferryboat, ii. 307. 
Jeffersonville Association v. Fisher, ii. 

73. 
Jeffries v. Jeffries, ii. 325, 327. 
Jemmott i\ Cooly, ii. 294. 
Jencks v. Ale.xander, ii. 74, 508, 578. 
Jenkins v. Foster, ii. 375. 

V. Freyer, ii. 212, 599. 

V. Harrison, i. 429. 

V. Jenkins, i. 222, 512, 513. 

V. Jones, ii. 72, 78, 81, 82. 

V. McCurdv, i. 24. 

V. Volz, i. 379. 

V. Young, i. 89 ; ii. 435, 436. 
Jenks V. Edwards, i. 475. 

V. Morgan, iii. 434. 

V. Ward, iii. 458, 491. 
Jenney r. Laurens, ii. 497. 
Jennings, Ex parte, ii. 305; iii. 438. 

V. Alexander, i. 546. 

V. Bragg, iii. 324. 

V. McComb, i. 478. 



T.VIJLi: OP CASKS CITED. 



I .\ .\ .\ 1 1 1 



Jeiinines c Monks, iii. I'JT. 

c. Tisbiiry, ii. !' is. 

i: WnnI, ii. tlT 

r. WiiitakiT. lii. 20o. 
Jennisoii i'. llap^ooil, i. ;,'0G, 311 ; ii. 78, 
b-2'2, 5-J4. &70. 

r. Wiilker. ii. liM, 35(1, 373, 306. 
Jeniiv c. Ji'iiiiy, i. 227, 260; ii. 642. 
.Jenilad r. Kllv. iii. 41»;J. 
Jt-nnne r. McCiirtcr. ii. 204, 270. 
JiTvis r. Unitoii, i. 1 12. 
JesscT f. (iillijril, ii. HUo. 
Jesson c. Doe, ii. 052. 
Jftor c. renn, i. (MU. 
Jewell r. Loe, ii. 325. 

V. Warner, i. 117. 
Jewett v. Ik-rry, i. 513. 

V. Hrock, i. 3,sO, 412, 42G, 427,444. 

r. Foster, i. 0S7. 

I'. Jewett, ii. 350, 300. 

I-. Miller, iii. HO. 80. 

V. Stockton, i. il88. 

V. Tucker, iii. 3tjO. 

V. Whitney, i. t)'.»3. 
JlRgits r. Jiggits, i. 227. 
JilUon r. Wilcox, ii. 057. 
Jobe V. O'Brien, ii. 210. 
Jolin and Cherry Sts., iii. 226. 
Johnson v. Anderson, ii. 500; iii. 450. 

i: Baker, iii. 311, 318, 321. 

V. Ball, ii. 028 ; iii. 573. 

V. Bantoek, iii. 381. 

V. Beauchamp, i. 028. 

V. Blydenburgh, ii. 42. 

V. Brown, ii. 126, 132, 149, 207, 
268. 

V. Camp, i. 12. 

V. Candage, ii. 125, 183. 

1-. Carpenter, ii. 122, 164, 257. 

r. Clark, ii. 52. 

r Collins, iii. 213, 520, 530. 

V. Conn. Bank, ii. 532. 

V. Cornett, ii 123. 

V dishing, ii. 089. 

1-. Klliott, i. 311. 

V. Farley, iii. 200, 301. 

17. Gorham. iii. 147. 

V. Griffin Tr. Co., i. 431. 

I'. Hannahan, i. OijO. 

r. Harmon, ii. 260. 

V. Harris, i. 080. 000. 

V. Hartshorn, i. 402. 

V. Houston, ii. 106. 

V. Johnson, i. 130, 716; ii. 135, 146, 
204, 407, 438, 4f,6. 034. 

V. Jordan, ii. 310. .322, 328, 329, 331, 
333, 300, 400. 

V. Kinnicutt, ii. 354, 355. 

V. Lewis, i 573; ii. 123. 

I'. Mcintosh, i. 68,09; iii. 194, 195, 
108. 

V. Mehaffey, i. 30. 

V. Monell, ii. 117. 

V. Moore, iii. 267. 



Johnson v. Morse, i. 283. 

V. Muz/y. i. 518 ; ii. 293; iii. 331. 

r. NhsIi, iii 149, 156. 

V. Neil. i. 2H;i. 

r. < lp|>enheiin, i ■'■ 'T <".H 

f. I'arks, ii. 407 

V. IVrley, i. 210 

I'. I'hillips, ii. 1(15. 

r. Kayiier, iii. 413, 420. 

<•. Kiee, ii. 210, 211. 221. 

r. liiehanUon, i. 4, 70, 375, 881 ; ii 
150. 

V. Kolterts, i. ?A]9. 

V. Sherman, i. 525. 55-1 ; ii. 5.3. 

V. Shields, i. 31;;, .314. 

I'. Simeock, ii. 741 ; iii. 563. 

V. Simpson, iii. 427. 

r. Skillman, i. 005, 070. 

V. Stagg, ii. IIH, ;J28. 

V. Stevens, ii. 171. 

i: Stewart, i. 040. 

!•. Stillings, i. 344. 

I'. Swain, i. O'.Hi. 

v. Thomiison, ii. 177, 184; iii. 102 

i: Valentine, ii. 592, 698. 

V. White, ii. 141. 

V. Williams, ii. 211, 215, 221. 
Johnston f. Fergnson, ii. 60. 

V. dray, ii. 05, 67. 

r. HuMiphreys. ii. 635. 

V. Smith, i. 548. 

V. Vandyke, i. 200. .300. 
Johnstone r. Huddlestone, i. 584, 038 
Johnstown Cheese Mfg- Co. i;. Veghts, 

ii. 375. 
Jolly c. Arbuthnot. ii. 143. 

c. Brvan, i. 000. 
Jones V. Bacon, ii. 721. 783, 784. 

V. Berkshire, iii. 334. 

V. Brandt, i. 871, 419. 

1-. Brewer, i. 283, 284. 285, 303,310. 

r. Bush, ii. 488; iii. 310. 

V. Carter, i. 602, 500, 513, 514 ; iii 
204. 

V. Chiles, i 002. 

V. Cincinnati Type Foundry, iii 
280. 

1-. Clark, i. 505, 509. 

V. Cr.nde, ii. 08, 258. 

V. Crane, i. 677. 

V. Crawf..rd. iii. 202. 

i: Crumley, i. 350, 386. 

V. Havies, i. 587. 

v. Detroit Chair Co., i. 6. 

r. Devore. i. 206. 

V. Doe. ii. 11. 

I'. Doughertv, ii. 608. 

V. Ehrliseh, 1. 300. 

V. Fetch, i. 519. 

r. Flint, i. 11: iii. 307. 

r. Freed, iii. 272. 

I'. Freideberg. i. 577. 

r. Froninn, iii. 2.31. 

V. Frost, iii. 123. 



Ixxxiv 



TABLE OF CASES CITED. 



Jones V. Harraden, i. 695. 

V. Hill, i. 167. 

i: Hoar, i. 160. 

V. Hockman, iii. 146. 

V. Huglies, i. '216; iii. 263. 

r. Jones, i. 296, 622; ii. 11. 

V. Keitl), ii. 310. 

V. King, iii. 512. 

V. Laugliton, ii. 651. 

V. Mack, ii. 106. 

V. Maffet, ii. 552. 

V. Marable, iii. 17. 

i". Marsh, i. 642. 

V. Massey, i. 696. 

V. McDei-mott, ii. 535. 

V. Miller, ii. 654. 

V. Munroe, iii. 349. 

V. Myrick, ii. 212. 

V. Obenchain, i. 344. 

V. Patterson, i. 290, 344. 

V. Percival, ii. 355. 

V. Perry, iii. 223, 226, 229. 

V. Pettibone, iii. 443. 

V. Quinnipiack Bank, ii. 226. 

V. Reed, i. 512. 

V. Reynolds, i. 481, 482. 

V. Richardson, ii. 163. 

V. Roe, ii. 16, 677, 738, 739, 758, 777, 
801. 

V. Ryan, ii. 767. 

V. St. John, ii. 269. 

V. Say & Seal, ii. 498. 

i\ Scott, i. 25. 

V. Sherrard, i. 130; ii. 224. 

r. Smith, ii. 154. 571. 

V. Sothoron, ii. 789. 

V. Stanton, i. 721. 

V. Taylor, iii. 222. 

V. Thomas, i. 144 ; ii. 142. 

V. Tipton, i. 627. 

V. Todd, i. 2.57. 

V. Waddy, i. 358. 

V. "Wagner, ii. 384. 

V. Walker, ii. 11. 

V. Weathersbee, i. 680, 691. 

V. Webster, ii. 163. 

V. Westcomb, ii. 747. 

V. Whitehead, i. 152. 

V. Wood, ii. 721. 
Jones's Appeal, i. 704. 
Jones's case, i. 591. 
Joplin I'. Johnson, i. 595. 
Jordan v. Fenno, ii. 52. 

V. God man, i. 443, 455. 

V. Imthurn, i 442. 

V. Roach, i. 118; ii. 798. 

V. Staples, i. 607, 609. 

t\ Smith, ii. 195. 

V. Stevens, ii. 483 ; iii. 91, 257, 
398. 
Josetti V. McGregor, ii. 763, 765, 767, 

768. 
Joslyn V. Wyman, ii. 157, 196, 198, 300, 
272. 



Journeay r. Brackley, i. 634, 535, 552, 

554. 
Joy V. Adams, ii. 195. 

V. Penny Sav. Bank, ii. 299. 
Joyce V. Haines, ii. 510. 

V. Williams, iii. 96. 
Joyner v. Vincent, ii. 176. 
Judevine v. Goodrich, iii. 293. 
Judge V. Conn. F. Ins. Co., ii. 173. 

V. Forsyth, ii. 274. 
Judkins v. Judkins, i. 714. 
Judson V. Gibbons, ii. 553, 576. 

V. Sierra, iii. 274. 
Julian V. Bost., C. F,, &c. R. R. Co., i. 

266. 
Jumel V. Jumel, ii. 215, 227 ; iii. 348. 
Junction R. R. r. Hnrpold, iii. 83. 

V. Harris, i. 188, 190. 
June V. Purcell, iii. 443. 



K. 



Kabley v. Worcester Gas Co , i. 482. 
Kain v. Hoxie, i. 525, 529, 641, 547. 
Kaler ?,'. Beaman, ii. 354. 
Kamphouse v. Gaffner, i. 670. 
Kane r. Bloodgood, ii. 534, 535, 536. 

i\ O'Conners, ii. 511. 

V. Sanger, iii. 480, 50-3. 

V. Vandenburgh, i. 167. 
Kane County v- Herrington, i. 695. 
Kannady v. McCarron, ii. 107. 
Kansas Pac. Ry. Co. v. Dunmejer, iii. 

507, 511. 
Karker's Appeal, ii. 754. 
KarmuUer v. Krotz, i. 56; iii. 408, 472. 
Karnes v. Lloj'd, ii. 107. 
Kaser v. Haas, i. 373. 
Kastor v. Newhouse, i. 570. 
Kauffelt r. Bovver, ii. 88, 93, 94. 
Kauffman v. Griesemer, ii. 372. 
Kavanagh i'. Gudge, i. 655. 
Kay V. Penn R. R., i. 662. 

V. Scates, ii. 497, 498, 499, 753, 
763. 
Kean v. Hoffecker, ii. 776. 

V. Roe d. Hoffecker, iii. 558. 
Kean's Will, iii. 574. 
Kearney v. Macomb, iii. 273. 

V. Post, i. 531, 544. 

V. Taylor, iii. 228. 
Kearsing v. Kilian, iii. 326. 
Keates v. Cadogan, i. 576. 
Keating v. Condon, i. 611. 
Keats V. Huejo, ii. 364. 
Kcay V. Goodwin, i. 548, 692, 720. 
Keech v. Hall, ii. 181. 
Keeler v. Eastman, i. 147, 148, 149, 
152. 

i\ Keeler, i. 29. 

V. Tatnell, i. 2-59. 

V. Vantuvle, iii. 85. 

V. Wood," iii. 465, 47a 



TAULK OF CASES CITED. 



Ixxxv 



Ki'cly r. OTonner, i. r>72. 
Kcuiio ('. UouKlitoii, iii. -:<7. 
Ki'fni.-'(( Aiipciil, ii 7H>s ; iii. 400. 
Ki'ieiiiiiif c. Kficiilir.i', iii. 1-115, 340. 
Kcil r. IIi'iiKy, i. 4N''. 
Kiisol 1'. Kiiriu8t. i. (I'.to. 
Kfister r. SiDtt, ii. 574. 
Keitii V. ll..riier. ii. W, UI. 

r. Koitli, iii. 154. 

V. I'lirvi.s, ii. 517. 

r. Trapier. i. 217. .'500. 
Keller r. Mii-liaol, i. 'Jilti. 
Kflleran r. IJniwii, ii. 'Vl. 
Ki'llersberj^er r. K(i|)p, i. l-'iO. 
Kelley r. .Iiihil'S!*, ii. 51 1 ; iii. 120, 1^0. 

V. Meiiis, ii. IM, 7M. 

r. Weston, i. ii()5. (iOS. 
Kellogg' '•• Anu-s, ii. 137, lo8, I'JO, I'Jl. 

V. Ulair, iii. 5<>3. 

V. Iliile, ii. 4:;H. 4(i7. 47!). 

I'. Inger.sdll, iii. 4'.t2, 4"J3. 

V. Lootnis, iii. 1 t<'i. 

V. Miiliii, iii. 4H8. 

V. Piatt, iii. 507. 

V. Hand, ii. 212. 

V. Kohinaon, ii. 21»'); iii. 4'J4, 497, 
[*){, f*y2. 

V. Hockwell, ii. 2;]5. 

r. Smith, ii. 12:5; iii. 95, 435. 
Kellum V. Smitli, ii. 510, 517. 
Kelly v. Austin, i. 25. 

I'. naktT, i. o75. 

i;. City Mills, i. 27. 

V. Dutch Ciiurrh, i. 6G5. 

V. Greenfield, iii. 54. 

V. Herrick, ii. 225, 229. 

V. .lolinson, ii. 514. 

V. Meins, ii. 590. 

V. Pattersun, i. 470. 

I'. Payne, ii. 91, 97. 

I'. Thompson, ii. 47, 57, 59. 

V. Turner, iii. 400. 

I'. Waite, i. tJ17. 
Kelly's ca.se, ii. lOG. 
Kelsey r. Abbott, iii. 238. 

«'. Unnly, iii. 15. 

V. Ward. i. 523. 
Kenierer >•. liournes, i. 458. 
Kemp r. Bradford, ii. 588, 055. 

V. Derrett, i. i'.:50. 

V. Earp, ii. (')3. 

V. Hoilaivl. i. 337. 

V. Kemp, i. 402. 

V. Mitclieli, ii. 188. 

r. Thorp, iii. 203. 
Kempe i'. (Jf)odall, i. 591. 
Kendall i: Carland, i. 491, 550. 

r. Clark, i. 410 

V. Lawrence, i. 480; iii. 201. 

V. Mann, ii. 518. 
Kenley r. Hu.lelson, i. 800. 370. . 
Kennebec Purchase r. Laborec, iii. 108. 

V. Tiffiiny, iii. 435, 459. 

V. Springer, iii. 100, 104. 



Kennedy, fn re, I. 3.>C. 

r. Pury, ii. 50(5. 

r. Keiineily, i. 273; ii. 5155. 

/. McCarinev, iii. 2(J2. 

(. .\lilU, i. 335. 330. 

V. .\. drow, i. 335, 330. 

V. Northrup, iii. 345. 

V. Dwell, ii. 2, 299 ; iii. 493. 494, 
502. 

V. Strong, ii. 532. 
Keiiiieily's Apjieal, i. (578. 
Kenneriy r. Missouri Ins Co., i. 199. 
Keiiiiett r. IMumiiKr, ii. I'Xi, 139. 
Keniiey c I'liillips, iii. 4ul. 
Kenniston r. Leighton, ii. 455. 
Kensington v. Houverie, i. l2y. 
Kent V. Agard, i. 445. 

V. Ilartpoole. i. IHO. 

I', .ludkins, ii. 353. 

V. Kent, i. •J<»4. 

V. Lasley, i. 398 ; ii. 54. 

I'. Maliatley, iii. 672. 

V. Waite, ii. 317, 348, 392 ; iii. 59, 
411. 

V. Welch, iii. 517, 519. 
Kenworthy i-. Tullis, iii. 3iK). 
Kenvon v. Nichols, ii. 310, 328. 

'v. See, ii. (511, (>41. 

V. Segar, iii. 293. 

r. Shreck, ii. 179, 249. 
Keouii V. Daniell, i. 33. 
Keplinu'cr r. .Macubbin, ii. 717. 
Kei-i-ell r. Mailey, i. 532; ii. 290, GOO. 
Kepplu's Apjieal, ii. 9, G'>'i. 
Kercheval r. Triplett, iii. 122. 
Kerchner r. Singletary, i. 3'.t7. 
Kerley r. Kerley. i. 39'.t, 400. 
Keriian r. (Jrillith, iii. 210. 
Kernochan r. New York Bowery Ins. 

Co., ii. 241. 
Kerns v. Swope, iii. 339. 
Kerr, AV, ii. 3(I8. 

r. Connell, iii. 309. 

r. Day, i. 52^. 

V. Freeman, iii. 381. 

r. (iihiiore, ii. 0:5, 04. 

r. Kingsbury, i. 32. 

r. Moon, iii. 19*.). 
Kerry c. Derrick, iii. 505. 
Kershaw r. Thompson, ii. 249. 251 ; iii 

2^51, 232. 
Kessler r. Draub, i. 455. 

I-. State, iii. 338. 
Kester ?•. Stark, i. 717. 
Kelchiim r. .lanncey, ii. 157. 

V. Walsworth. i'. 7IM5. 
Keti Ita.s r. Penfold. ii .'580. 
Ketsey's case, i. 493. 
Key c. .McCleary, ii. 53, 54. 
Keyes r Bines, i. 3H0. 

r. Mill, i. 413,(524, 027. 
V. Woo.l, ii. 125, 12(5. 128. 
Keys V. Powell, i. 493, 522. 
V. Test. iii. 80. 



Ixxxvi 



TABLE OF CASES CITED. 



Keyser v. School District, i. 8. 

Kezer v. Clifford, ii. 177. 

Kibby v. Cliitwood, iii. 22G, 230. 

Kidd V. Deiinison, i. 187, 147, 148. 

Kiddali v. Trimble, i. 287. 

Kidder v. George, iii. 492. 

Kiefter v. Imlioff, ii. 328. 

Kiehle r. Heuliiigs, ii. 396. 

Kier v. Peterson, i. 151. 

Kiersted v. Orange & A. R. R. Co., i. 

500, 518, 55G. 
Kiester v. Miller, i. 580. 
Kighly V. Bulkly, i. 629. 
Kilborn v. Robbins, ii. 122, 201, 215, 226, 

255, 2t0. 
Kilgore v. Hascall, iii. 413. 
Kilgour r. Crawford, i. 717. 
Killaree v. Jansen, i. 656. 
Killion V. Kelley, ii. 355; iii. 502. 
Killmore i-. Howlett, iii. 369. 
Kilpatrick v. Kilpatrick, ii. 92. 
Kimball v Blaisdell, iii. 106, 117, 120, 
127, 498, 508. 

V. Cocheco R. R., 11. 320. 

V. Eaton, iii. 298. 

V. Grand Lodge, Iii. 500. 

V. Johnson, iii. 334. 

V. Kenosha, iii. 450. 

V. Kimball, i. 246, 248. 

V. Ladd, iii. 171. 

V. Lockwood, 1, 540, 596 ; ii. 107, 
142, 148, 144. 

V. Lohmas, iii. 168. 

V. Mvers, ii. 49. 

V. Pike,i. 548. 

V. Rowland, i. 513, 638, 644. 

V. Schotr, iii. 76, 119. 

V. Semple, iii. 409, 508. 

V. Stormer, iii. 167. 

V. Sumner, iii. 6. 

V. Walker, iii. 399, 401. 
Kimble v. Esworthy, i. 417, 418. 
Kimbrell v. Willis, 1. 360, 403. 
Kime v. Brooks, iii. 297. 
Kimpton r. Walker, 1. 523, 524, 535. 
Kincaid v. Brittain, iii. 479, 483, 486, 
488, 495, 498, 507, 527, 530. 

V. Burem, 1. 441. 

V. Dormey, iii. 97. 

V. Meadows, iii. 350. 
Kincaid's Appeal, i. 35. 
Kincheloe r. Tracewells, iii. 57. 
King V. Aldbnrough, i 539. 

V. Anderson, i. 549. 

V. Bronsoii, ii. 76. 

V. Donnelly, ii- 552. 

V. Gilson, i'ii. 119, 260, 338, 479, 512, 
513, 524, 527. 

V. Hawkins, iii. 222. 

V. Horndon, 1. 662. 

V. King, i. 240, 286 ; ii. 51, 137, 207. 

V. Lawson, i. 614. 

V. Longnor, iii. 297. 

V. McVickar, ii. 221. 



King V. Miller, ii. -365. 

V. Newman, ii. 54. 

V. Oakley, i. 489. 

r. Pardee, ii. 535. 

V. Pedly, i. 571. 

V. Phillips, i. 692. 

V. Reed, i. 718. 

V. Reynolds, i. 475, 565. 

V. Rowan, 1. 690. 

V. Smith, iii. 159. 

V. Stacey, iii. 116. 

V. State Ins. Co., ii. 240,241, 244. 

V. Stetson, 1. 229, 230. 

V. Sturgs, i. 376. 

V. Thompson, iii. 248. 

V. Utley, ii. 648. 

V. Weeks, i. 701. 

V. Wilson, i. 543. 

V. AVithers, ii. 775. 

V. Yarborough, iii. 62, 65. 

V. Young, iii. 448. 
Kingdon v. Bridges, ii. 506, 508. 

V. Nottle, iii. 479, 484. 
Kingman v. Higgins, i. 448. 

11. Sparrow, i. 251 ; iii. 171. 
Kingsbury v. Burnside, iii. 306, 310. 

V. Milner, iii. 531. 

r. Wild, ill. 222. 
King's Chapel v. Pelham, ii. 13. 
King's County F. I. Co. v. Stevens, iii. 

449, 
Kingsland v. Clark, i. 558. 
Kingsley v. Holbrook, i. 11, 16 ; ii. 55, 
475 ; iii. 291, .367. 

V. Kingsley, i. 368, 401. 
Kingsmill r. Millard, i. 590. 
Kiniia v. Smith, ii. 101, 136, 146, 147, 

268. 
Kinne v. Kinne, iii. 547. 
Kinnear v. Lowell, ii. 227. 

V. Rogers, ii. 710. 
Kinnebrew i'. Kinnebrew, iii. 392. 
Kinney v. Ensign, ii. 196. 

V. Watts, i. 519. 
Kinnier v. Rogers, ii. 710. 
Kinsler v. Clark, ii. 475. 
Kinsley v. Abbott, i. 705. 

V. Ames, 1. 649 ; ii. 71, 80. 
Kinsman v. Loomis, iii. 108, 112, 121, 

127, 175. 
Kip V. Bank of New York, ii. 532. 

r. Deniston, ii. 568. 

?•. Norton, iii. 96. 
Kirby v. B. Market Assoc, i. 570. 

V. Childs, ii. 278. 

V. Vantrece, i. 214. 
Kircher v. Schalk, ii. 106. 
Kirk V Dean, i. 256, 260, 266. 

r. King, iii. 70. 
Kirkham v. Sharp, ii. 350. 
Kirkpa trick v. Kirkpatrick, ii. 789 

V. Wiiite, i. 425. 
Kirtland v. Pounsett, i. 626. 
luster V. Reeser, iii. 462. 



TAIILK OF CASES CITED. 



Kitclicll I'. Bur^win, i. 3o0, 37U, 402, 

418. 
Kitclioii r. rriil>,'fii, i. (535. 
Kittlf r. Van Dvck. i. -JIJO; ii. 209, 
Kittreil^'e r. .McL.iUk'lilin, ii. 24u. 

I". r<-iisk'i', i. (iJl. 

r. Won.Ls. i. 11, 2t». 140; iii. 410. 
KLipwortli r. Difssler, ii. 2H>, 'J2o. 
Kk-iii ('. McN'iiiniirii, ii. 53. 
Ivlenk r. Kiiolilo, i. ''Ail. 
KU'innKT u. Lavcrty, ii. 052, 054, 050, 

755. 
Kliiick r. KeckU-y, i. 231, 231). 

r. I'rice, ii. 54. 
Kline V. Ik-ebe. i. 182, 488; iii. 204, 
205. 

I". Jacobs, i. 005. 
Kliiu'sinitli r. Soewell, iii. 202. 
Klinj^ r. Dri's.^, i. 507. 
Kiock r. WtiltiT, ii. 53. 
Kiiiiiller V. Sliiirp, iii. 480, 490. 
Knai)p r. Gass, i. ."587. 

,: Wiii.lsor, i. 343 ; iii. 10. 
Knauss v. lima, i. 571. 
Kllcclit r. Mitclic'll, 1. tl.'.O. 
Kiieelaiid r. \'an N'aikiiilmrfrli, iii. 419. 
Knc!)itiT r. Kurtz, iii. 500. 524. 
Kiietzor v. Brailstri't't, ii. 258. 
Knight .•. Boll. i. 341. 

i\ Ik-nott, i. 034. 

V. Clements, iii. 259. 

V. C().\, i. 0<M). 

V. DycT, ii. 04 ; iii. 329, 376, 458. 

I'. Mains, i. 245. 

V. Moore, ii. 351. 

V. Mosely, i. 150. 

1-. Thayer, i. 484 ; iii. 125, 612. 

V. Weatherwa.x, ii. 570. 

V. Whiti'hcail, ii. 220. 

V. Wilder, iii. 44.3. 
Kni<jlit's case, i. 407. 
Knotis r. Hvilrick, i. 10. 
KnoiilT r. Thompson, iii. 85, 80, 89. 
Knowles r. I)nil<,a', ii. 080. 

1-. Hull, i. 501"), 053. 

V. Law ton, ii. 205, 221, 205. 

V. Hablin, ii. 222. 

I'. Toothakcr, iii. '.H>, 435. 
Knowlton »•. Smith, iii. 07. 

r. Walker, ii. 37, 190. 
Knox V. Gyc, ii. OS. 

V. llanlon, i. 300. 

I'. Haralson, iii. 809. 

V. Hc.xter, i. 5t)5. 

V. Hook, iii. 174. 
Koch V. Brings, ii. 84, 85, 273; iii. 274. 
Kocourek v. .Marak, iii. 270. 
Koehler v. Black Kiver Falls Iron Co., 

iii. 288, 2S'.). 
Koenig r. Branson, iii. 618. 
Koeni>?'s Appeal, i. 89. 
Kocstcr r. Burke, ii. 120. 
Kohl r. rnite<l States, i. 70. 
Kohler v. Kloppinger, iii. 451, 



Kooystra r. Lticaii, ii. 832 

Koppf V. Utter, ii. 300. 

Korho V. Barbour, i. 5. 

Korncgay r. Collier, i 527. 

Kortright r. Ca.lv. ii. 100. 110, HI, 

114. 127. 131. 172. IhO, 240. 
Kortz r. Carpenter, iii (jOO. 
Kouniz r. Holthoiise, ii. 219. 
Kraemer r. Uevalk. i. 431. 
Kramer c Carter, ii. 2'.iO ; iii. 401, 500. 

V. Cook, i. 471, 10:t, 50t;, 5<;'.). 

I'. Farmertf' <sL Mechanics' Bank, ii 
158. 

I-. Bebnian. ii. 240. 200. 
Kreiter /•. liigler. iii. 4 JO, 459. 
Kresin v. .Man. i. 302. .376. 
Knvet r. .Meyer, i. O.V). 
Krueger r. Ferrant, i 577. 
Kuhn r. Kaler. i. 210. 

I'. Newman, ii. 408, 499. 

V. Huinpp. ii. 53. 

r. Wel»ter. iii. 5<i5. 
Kumler r. Ferguson, iii. .399. 
Kunckle v. Wyiiick. i. 535. 
Kuiikle f. Wolfersberger, ii. 01, 03, 04, 

143. 
Kurtz r. Kilmer, i. 713. 
Kurz r. Brusch, i. 371. .388. 
Kutter r. Smith, i. 400. 
Kutz I' McCunc, iii. 41>2, 493, 495. 
Kyger i'. Riley, ii. 110. 
Kyle V. Kaveuagl), iii. 379. 



Labaree v. Carleton, ii. 2, ; iii. 391. 

I'. Woodward, i. 450. 
Lacey, K.r jmrti-, ii. 524. 

i\ Arnett. i. 008. 
Lackey r. llnlbrook, i. 0.56 ; ii. 107. 
Lackman '•. Wood, iii. 78, I'M. 
Lacon r. Higgins. i. 225. 
Ladd r. Ladd. ii. 704. 700, 708, 

V. Noyes, iii. 50.J. 

V. Perley, i. 715. 
Ladue i: Detroit. &c. R. H., ii. 112, 

123, 127, 134. 101, 102. 
Lalarge '•. Herter, ii. 227. 

r. .Mansfield, i. 470. oitS. 
La Farge Ins. Co. v. Bell, ii. 156. 215, 

221. 
La (Tan i'. Xaclee, i. 528. 
Lallin .-. Criflitlis. i. 7. 8 ; ii. 103. 
Im Fromhois r .Jackson d. Smith, iii 

14'.t, 101'. 170, 171, 174. 
Lagow i: Badollet. ii. 05, 07. 
Tm Granire r. L'.Amoreau.x. ii. 576. 
Laguerenne r. Dougherty, i. 036. 
I>aing r. Cunningham, i. 419. 
Lake r. Craddock. i. 701. 

V. Freer, ii. 54S. 

V. (;rav, iii. 341,398. 

r. Lake, ii. 459. 



Ixxxviii 



TABLE OP CASES CITED. 



Lake v. Page, i. o78. 
Lakin v. Lakin, i. 254. 
Lallande v. Wuntz, iii. 492. 
Lamar v. Scott, i. VJ'J, 314. 
Lamb v. Croshind, ii. 33(3, 345. 

t;. Danfortli, i. 01)9; iii. 489, 493, 
506, 52!), 531. 

V. Foss, ii. 116. 

V. Mason, i. 426, 456. 

V. Montague, ii. 182, 183, 225. 

V. Shays, i. 419, 430. 
Lambden v. Sharp, iii. 288. 
Lambert v. Blunientlial, i. 715. 

V. Carr, iii. 218. 

V. Smith, ii. 479. 
Lambeth v. Warner, i. .320. 
Lamore v. Frisbie, i. 4.52. 
Lampet's case, ii. 677, 787, 790 ; iii. 

371. 
Lamplugh v. Lamplugh, ii. 459. 
Lampman v. Millss, ii. 331. 
Lamprey v. Nudd, ii. 115, 123. 
Lamson v. Falls, ii. 209. 

V. Drake, ii. 222, 235. 
Lamson Co. v. Russell, i. 499. 
Lanahan v. Sears, i. 42(5. 
Lancaster i'. Dolan, ii. 498. 

V. Eve, i. 5. 
Lancaster Bank r. Myley, i. 702. 
Lancaster Co. Bank v. Stauffer, i. 187, 

189. 
Lance's Appeal, ii. 54. 
Landers v. I3eck, ii. 53. 

V. Bolton, iii. 271, 342, 347. 
Landes v. Brant, iii. 328. 
Landon r. Pratt, i. 6, 31. 
Lane v. Bommelmann, iii. 238. 

V. Davis, ii. 129. 

V. Dickerson, ii. 54. 

V. Dighton, ii. 524. 

V. Dorman, iii. 223, 226, 227. 

V. Gould, iii. 100, 163, 104. 

V. Harold, i. 093. 

V. Hitchcock, ii. 141. 

V. King, i. 144 ; ii. 142. 

V. Shears, ii. 47. 

V. Thompson, i. 101 ; iii. 408. 

V. Tyler, i. 700. 
Lanfair v. Lanfair, ii. 43, 45, 59. 
Lang y. Waring, i. 701, 702. 

V. Whiddeii, i. 485. 
Langdon v. Ingram, ii. 9. 

V. Keith, ii. 128. 

V. Paul, ii. 141, 252. 

V. Poor, iii. 237, 242. 

V. Potter, i. 63; iii. 1.35. 

V. Strong, ii. 580; iii. 230. 
Langford v. Selmes, i. 543; ii. 285. 
Langham v. Nenny, ii. 701. 
Langley v. Chapin, ii. 4. 
Langmaid v. Higgins, iii. 458. 
Langstaffe i>. Fenwick, ii. 05, 244. 
Langston, Ex parte., ii. 80. 
Langworthy v. Myers, iii. 161. 



Lanigan v. Kille, i. 519, 565. 
Lanoy v. Athol, ii. 207, 22;». 
Lansing v. Goelet, ii. 248, 252. 

V. Stone, i. 157. 
Lansingburgh Bank v. Crary, i. 16. 
Lapere v. Lucky, ii. 364. 
Lapham v. Norton, i. 6. 
Large's case, i. 85. 
Larke i'. Farren Hotel Co., i. 571. 
Larkin v. Avery, i. 032, 046. 

V. Misland, i. 559. 
Larman v. Huey, i. 691. 
Larned v. Bridge, iii. 565. 

V. Clarke, i. 032 ; ii. 177. 

V. Larned, ii. 359. 
Laroe v. Gaunt, iii. 336. 
Larrabee v. Lambert, ii. 129, 244. 
Larrowe v. Beam, i. 301. 
Larson v. Reynolds, i. 435 ; ii. 263. 
Lasala v. Holbrook, ii. 381, 382, 383. 
Lash V. Lambert, ii. 283. 
Lassell v. Reed, i. 20, 610. 
Lassen r. Vance, i. 230, 430. 
Latham v. Morgan, iii. 524. 
Lathrop v. Blake, i. 23. 

V. Com Bank, i. 81. 

V. Pollard, ii. 571. 

V. Singer, i. 424. 
Latrobe v. Tiernan, ii. 566, 568. 
Lattimer r. Liverniore, ii. 365. 
Lauck's Appeal, i. 425. 
Lauglin v. Braley, ii 43. 
Laugran v. Smith, i. 035. 
Laverty v. Moore, iii. 83, 93, 351. 
Law V. Hempstead, iii. 423. 
Lawley v. Hooper, ii. 51. 
Lawrence v. Brown, i. 316, 317. 

V. Cornell, ii. 209. 

V. Farmers' Loan & T. Co., ii. 80. 

V. Fletcher, ii. 105, 252. 

V. Fox, ii. 219; iii. 332. 

V. French, i. 557, 559, 560, 561, 564 

V. Hebbard, iii. 561. 

V. Kete, iii. 536. 

V. Knap, ii. 123. 

V. Knight, i. 510. 

V. Lawrence, ii. 763. 

V. Miller, i. 306, 597. 

V. Pitt, iii. 14. 

V. Senter, iii. 501. 

V. Stratton, ii. 65, 122, 197, 253 ; 
iii. 325. 

V. Towle, ii. 117, 217. 

V. Tucker, ii. 157. 
Lawry v. Williams, iii. 119. 
Lawson v. Morton, i. 214. 
Lawton v. Adams, i. 692. 

V. Bruce, i. 389. 

V. Buckingham, iii. 399, 526. 

V. Lawton, i. 31. 

?,'. Sagcr, iii. 317. 

V. Salmon, i. 34. 

V. Savage, i. 626. 

V. Ward, ii. 352. 



TABLE OF CASES CITED. 



Ixxxix 



Lawvcr r. SlinptTlnnil, i. 439 ; iit. 270. 

I^ny r. Ciil)l)<)iis, i. 4:i.'). 

I^aviiiiin V. 'llirop, i. ({'12. 

Laytoii f. IJutUr, i. 2!>2. 294. 

Liizt'fir V. I'ortiT, i. 2t»G. 

L.i/ell r. La/cll, i. '-il:\. ;}!iO, 451. 

Lea r. Nt'tliorton. i. GOa. 

V. Tolk Co. fopiHjr Co.. iii. 330. 
Lender /•. Ilomewood. i. -ui, 4G0. 
I^ake ('. Uubinsoi), ii. 7UL 
Leal V. Terbusli, iii. KKJ. 
Lear v. Lenjiett, i .">0J. 

r. Ttitti'ii, i. 4.')1. 
Learned v. Caller, i. 2o8, 312; iii. 272. 

r. Foster, ii. 2o8. 

f. Uiley, iii. 3.J4. 
T..enry v. Durliain, iii. 408. 
Leavfiis i-. Hiiller. ii. wy2. 
Leavitt r. Fietclier, i. 521,623,630,637, 
6G«J. 

V. Lamprey, 1. 2o7, 271. 291, 310. 

V. Leavitt, i. (>i;5 ; ii. 461. 

V. reil. ii. 7Uo, 708. 

V. Pratt, ii. 137. 

V. Towie, iii. 414, 471. 
Leblanc r. Ludrique, iii. 210. 

r. St. Cieriniiin, i. 414. 
Lec()iiij)t r. Wasli, i. 253. 
Ledbitter v. (iasii, i. 711. 
Ledyanl r. Butler, ii. 108. 

f. Clia]iin, ii. lHo. 

V. Ten Kyek, iii. 437, 446. 
Lee r. Hank of U. States, i. 352. 

I'. Dean, iii. 527. 

V. Kvan.s, ii. 65. 

t'. Fo.x, i. 720, 721. 

r. Kingsburv. i. 442; ii. 2G0, 278. 

V. Lee, ii. 7'.»0. 

r. Lindi-11, i. 2(i8. 

V. Mass. F. & M Ins. Co., iii. 299. 

V. McI.ieod, i. <J<i0. 

r. Miller, i. 373, 389. 

r. Kisdon, i. 32. 

V. Stone, ii. 156. 
T.ceeh r. Leecli, iii. 200. 
Leeds r. Cameron, ii. 157. 

r. Cheethani, i. 521, 508. 

I'. Wakefiel.l, ii. 718, 723. 
Lees V. Mosley, ii. 05:^. 
Leese v. Clark, iii. 210. 
Lefavour »•. lloman, iii. 154. 
Letevre r. .M unlock, iii. 201, 2G8. 
I^efevre's Api>e:il, i. 7nl. 
Lefflngwell v. Elliott, iii. 533. 
lA'ffler r. Arnistronjr, ii. 84. 
Leger v. Doyle, iii. 340. 
Legg r. Horn, ii. 3:)4, 3;10. 
Leggat V. I>eggat. ii. 514 
Leggett ('. Builoek, ii. 151. 

r. Steele, i. 301. 
Lehigli Vallev H U. i'. McFarlan, ii. 

3;34, .3.30, 343, 'Ml. 
Lehman v. Kellermnn, i. 83. 
Leicester f. Biggs, ii. 488. 



U'igli r. niikodon, I 005. 
Leighton ''. lA'igliton, i. 107. 

r. I'erkinM, iii. 5(Jo. 

V I'rentcm. ii. 107. 
LeiHliman r. White, i. 504, 028. 
lA-laml V. (ui^xvH i <>, 7. 

I. Loring, ii. 252. 
LiMuington r. Sievfiis. i. 471, 
IxMK-h c. Lcnch, ii. 512. 
Lennig's Eotate, ii. Kis, 218. 
Leniion i- I'almer, i. 594. 

I-. I'ortir, ii 2Hl. 
Lent r. Slii-ar, ii. 193. 
Lent/ I- \'iitor, ii. 40t'i. 
Leonard r. Adams, iii. 508. 

r. Kingsland, ii. 770, 771. 

V. Leonard, i. 298; ii. 350; iii. 

V. -Mason, i. 355. 

1-. Motley, i. 71f,. 

r. Qiiinlan, iii. 4.34, 4.36. 

r. Storer, i. 572. 

f. White, iii 411, 4ia 
Lerned r. Bridge, ii. 785. 

v. Morrill, iii. 435. 

r. Saltonstall, ii 608. 
Lerow r. Wilmartli, iii. 3.50. 
Leroy v. Charleston, ii. 597. 
Leshey v. (.Jardner, ii. 5tj0. 
Lesley v. Randolph, i. 633, 034, 

643. 
I^slie r. Marshall, ii. 685, 687, 688, 

742. 743. 
Lessley v. Phipps, i. 356. 
Lester r. Young, i 149. 
Lestrade v. Barlh, iii. ."W?. 
Lethienllier r. Tracy, ii. 020, 627. 
Letton r. (loodi-n, ii. ;J06. 
Leupold V. Krause, i. 370. 
LiVL-nthorpe r. .\slibie, ii. 786. 
Levering r. Ileighe, i. 3^33; iii. 15. 

V. Langley, i. 582. 
Levey v. Dyess, i. 507. 
Levy i;. Levy, ii. 489, 570, 790 ; iii. 
651, 550, 657, 5(58. 

I'. Lewis, i. 051, 052. 
Lewes v Hidge, i. 508, 6.30. 
Lewis V. Raird, ii. 652 ; ii 
339. 

r. Beall, ii. 453, 474. 

V. Beattie. iii. 452. 

r. Brnnthwaite, i. 408. 

V. BrewstiT. iii. 31.H5. 

V. Campbell, iii. 5.'}3. 

I'. Cnrstnirs. ii. 318. 

r. Coxf, i. 259, 200, 206; iii. 2 

V. De Forest, ii. 157. 

r. .Tames, i. 214, 311. 

r. Jom-s, i. 152, 010. 

V. Kirk, ii. 154. 

I'. Lewis, i. 337; ii. 420, 459; 
672. 

V. Lvman. i. 20. 0O9, 610; iii 4 

r. MoNa-t. i. 1:^0. 

r. Meserve, i. 240. 



157 



635. 
692. 



549. 



101, 122 



74. 



xc 



TABLE OP CASES CITED. 



Lewis V. Montgomery Building, &c. 
Assoc, ii. 509. 

V. Nangle, ii. 2()y. 

V. Payn, i. 55U, 5(51, 504; iii. 260. 

V. Scofield, iii. 537. 

V. Smith, i. 262, 2G5, 315,335, 338; 
ii. 249, 270, 776. 

V. Waters, ii. 618. 

V. Willis, i. 592. 
Lewis St., fie, iii. 109. 
L'Hussier v. Zallee, i. 475, 565. 
Libbey v. Tolford, i. 522, 569, 576. 
Libby v. Cobb, ii. 181. 
Lick V. O'Donnell, i. 687. 
Liebschutz v. Moore, i. 585. 
Liefe v. Saltingstone, ii. 702. 
Lienow v. Ellis, i. 552. 

V. Ritchie, i. 621. 
Lies V. De Diablar, i. 429, 430, 447 ; iii. 

250. 
Liford's case, i. 13, 16, 113, 143; ii. 321 ; 

iii. 411. 
Liggins V. Inge, i. 664, 672; ii. 358, 360, 

370, 396, 397. 
Lightner v. Mooney, iii. 340. 
Lillard r. Rucker, iii. 343, 344. 
Lillie V. Dunbar, iii. 369. 
Lilly V. Fiftv Associates, i. 517. 

V. Palmer, ii. 220. 
Lincoln v. Davis, ii. 390. 

V. Emerson, ii. 119, 175 ; iii. 117. 

V. Parsons, ii. 53. 

V. Purcell, iii. 178. 

V. Wliite, ii. 124. 
Lincoln Bank v. Drmnmond, ii. 18. 
Lindeman v. Lindsay, ii. .396. 
Linden v. Hepburn, i. 543. 
Lindley v Dakin, i. 55 ; iii. 488. 

V. Sharp, ii. 53. 
Lindsay r. McCormack, iii. 564. 

V. Springer, iii. 96. 
Lindsey '•• Bates, ii. 97. 

V. Miller, iii. 171, 203, 204, 207. 

V. Wmona R. R. Co., i. 143. 
Lindsley v. First Chr. Soc , ii. 713. 
Line v. Blizzard, iii. 276. 

V. Stephenson, iii. 519. 
Lines v. Darden, ii. 499, 550. 
Lines' Appeal, i. 396. 
Lingan r. Carrol, iii. 560. 
Lingenfelter v. Richey, ii. 535. 
Link V. Link, ii. 544. 
Linn v. Ross, i. 566. 
Linnell v. Lyford, ii. 65. 
Linslcy v. Sinclair, ii. 513. 
Lint V. Wilson, i. 30. 
Linthicum v. Ray, i. 62. 

V. Tapscott, ii. 89. 
Linton r. Hart, i. 550. 
Linzee »' Mixer, ii. 327. 
Lion V. Burtiss, ii. 753, 772. 
Lippencot »• Allendar, ii. 306. 
Lippett r. Kelley, i. 693 ; iii. 430, 4-58. 
Lipscomb v. Nichols, ii. 511, 512, 518. 



Lipsky IK Bergman, i. 6. 
Liptrot V. Holmes, ii. 538, 540. 
Lisburne v. Davies, i. 589. 
Lisle V. Gray, iii. 282. 
Litchfield v. Cud worth, i. 189. 

V. Ready, ii. 144. 
V. Scituate, iii. 447, 448. 
Lithgow V. Kavenagh, i. 91 ; iii. 269, 

272. 
Littler. Downing, iii. 146, 147, 164, 165, 
178. 

V. Gibson, iii. 312. 

r. Heaton, i. 514. 

V. Megquier, iii. 164, 166, 338. 

V. Palister, i. 616; ii. 805. 

V. Pearson, i. G24. 

V. Woodward, i. 361. 
Littler v. Lincoln, ii. 321, 348. 
Littleton v. Richardson, iii. 504. 
Lively v. Ball, i. 591. 
Livermore v. Aldrich, ii. 517, 518. 

V. Maquokota, iii. 79. 
Liverpool Wharf v. Prescott, iii. 94, 97. 
Livesey's Appeal, ii. 499. 
Livezey v. Philadelphia, i. 10. 
Livingston v. Haywood, ii. 805. 

V. Livingston, ii. 506, 509, 517, 
503. 

V. Monigona Coal Co., ii. 384. 

V. Newkirk, ii. 207. 

V. New York, iii. 109. 

V. Peru Iron Co., iii. 293, 351, 352. 

V. Potts, i ibO. 

r. Prosens, iii. 351. 

V. Reynolds, i. 136, 137, 150, 167. 

V. Story, li. 39. 

V. Tanner, i. 649. 654. 

V. Tomkins, ii. 22. 
Livingston's Petition, ii. 577. 
Llewellyn v. Jersey, iii. 426, 427. 
Lloyd V. Brookiner, ii. 082. 

V. Carter, ii. 518, 520. 

V. Conover, i. 208. 

V. Cozens, i. 545, 640, 643. 

V. Crispe, i. 503. 

V. Giddintis, iii. 310, 318. 

V. Gordon, i. 689, 720. 

V. Jackson, iii. 564. 

V. Lloyd, ii. 10. 

V. Lynch, i. 721 ; ii. 517, 545. 

V. Spillet, ii. 419, 420, 505. 
Loaring, Ex parte, ii. 95. 
Lobdell V. Hall, i. 646. 

V. Hayes, i. 215, 234 ; iii. 6. 
Lock V. Fulford, ii. 211, 212, 216. 

V. Furze, i. 565. 
Locke V. Colman, i. 497. 

V. Homer, ii. 218, 219, 220. 

V. Palmer, ii. 52. 

V. Rowell, i. 125, 409, 453. 
Lockerson v. Stillwell, ii. 53. 
Lockhart v. Hardy, ii. 165, 207, 251. 
Locks, &c. Proprietors of, v. Nashua & 
L. R. R. Co., iii. 145. 



TADLE OF CASES CITED. 



XCl 



Ijocks, &c. I'roprii'tors of, r. Springer, 

i. G». 
Lockwoiitl I' HuiiL'dii't, ii. 205. 

c. Lockwooil. i. (').!4, G4(J. 

V. Sturdevunt, ii. Mi ; iii. 222, 4b2, 
•184. 
Lofkwood Co. c. Liiwrciice, ii. 307, 

•A)\. 
Lnckycr r. Siivnm", ii. 10. 
Lodge V. Harnett, iii. 428. 

I'. Tiiriiiiin, ii. M. 

V. White, i. iVJu, 5h2. 
Loeb r. McMiiliDM, i. 433. 
L(H-bentiinl i: Kaleigli. ii. 707. 
Lu'lir V. C'olborn, ii. 225. 
LuiJiis r. Maw, ii. 515. 
Lott r. Dennis, i. 521. 
Loften c. Willioanl, ii. 510. 
Logan I' Anderson, i. 582 ; ii. 231. 

r. Bell. ii. O'.K). 

IV llerron, i. t>.!.'), 013. 
LokiTson r. Stillwuli.ii. tU. 
London r. (Jreyme, i. 152. 

I'. Lontlon, i. 227. 
London & N W. U. K. Co. v. West, f. 

5!)2. 
London Loan Co. v. Drake, i. 31. 
Long r. Doliarliide, iii. 31.J. 

f. Fit/siniinons, i. 155. 

V. (iraeber, i. I'.IO. 

V. Long, iii. 2H7. 

V. Ma.xt. iii. 153, 154. 

V. Molcr, iii. 4'.)2, 495. 

I'. Mostyn, i. 42'.). 

r. Murpiiy, i. 372. 

r. Kanisay, iii. 2^)1. 

17. Steiirer, ii. 515. 

V. White, i. 341. 

V. Young, iii. 147. 
Longbottoni c. Rirrv, ii. 163. 
Lon-fellow v. Longfellow, i. 688, 592, 

5'J'J. 
Longford c. Kyre, ii. 707. 
Longwitb v. H'utler, ii. 71, 72, 76. 
Longworth v. Bank of U. S., iii. 222. 

V. Flagg, ii. 258. 
Look «'. Norton, i. i\'i. 
Looker r. I'l-ckweil, ii. 163. 
Looiner i". Wlieelwriglit, ii. 205. 
Looniis I'. Bedel, iii. 507, 510. 

i;. Gerson, i. 417. 

V. Wilbnr, i. 1.30. 
Looney r. McLean, i. 577. 
Lord r. Carbon Iron Mfg. Co., ii. 378, 
3'J4. 

I'. Conimrs. of Sidney, iii. 410. 

V. Crowell. ii. 108, 109, 12.5, 247. 

r. Ferguson, i. 553. 

r. Morris, ii. 102. 
Lorentz r. Lorentz, ii. 507. 
Loring r. Baeon, i. 18; ii. 388. 

V. Cooke, ii l')<3. 

V. Craft, i. 40:1. 

V. Eliot, ii. 012, 614, 010. 



Loring v. Mnrsli, ii. 710; iii. W9, 560l 
567, 577. 

V. DliB. iii. lOH, 5(>2, 618. 
I.K)rnian r. BenHon, i. 4 ; iii. 303, 437. 
Lorniorc r. Caiiipbeli, iii. 355. 
Lo8ey ('. Bond, iii. 2*'>7 

c. .SinipHon. ii. 257, '•Uliy, 330. 
Lotiirop c. F'..stor, i. 258, 28H. 
Loubat r. .Nour^e, i. 210, 703, 704. 
Loud V. Darling, iii. 3.'>0. 

V. Lane, ii. IM, 203, 205. 
I/ondon I'. WarMi'ld, i l'>7. 
Lough r. Maeklin, iii. 451. 
Loughrain r. IJoss, i :!2 ; iii. 507. 
Louisville Bank c Hall. i. 7(rj. 
Lounsberry c. Snyder, i. 521, 500, 635 
Lounsbury r. I'urdy, ii. 678, 670. 
Lo\i|>e c. Wood, i. 575. 
Love r Harbin, ii. 453, 472; iii. 386. 

V. Law, iii 'J8. 

V. Wells, iii. 82, 353. 
Loveaeres r. Blight, ii. 538. 
Lovelaee r. Webb, i. 415. 
Lovell c. Smith, ii. .358. 
[..over f. Bessenger, i. 442. 
Lover's ease, i. 057. 
Lovering c. Fogg, ii. 57, 173. 

r. Lovering, i. 510; ii. 607. 
Lovett c. (Jillender, ii. 'J. 

r. Lovett, ii ''-i'. 
Lovies' ease, ii. 78'i. 
Low V. Allen, ii. r.t3. 

c. Klwell, i. 018, 057. 000. 

r. Henry, ii. 51, 03. 

r. Muniford, i. Cj'.i'J. 

V. Tibbetts, iii. 44'.t. 
Lowe '•. Kmerson, i. 51*7. 

I'. Griflitb, i. 4!>2. 

I', (irinnan, ii. 81, 85. 

i\ Maceubben, iii. 16. 

V. Miller, i. •'.05. 

V. Morgan, ii. 207. 

r. Weatherley, iii. .309. 
Lowell I- Daniels, iii. 78, 84, 110, 125, 
201. 

V. Mid.llesex Ins. Co., ii. 98. 

r. Robinson, iii. 443. 
Lowell M. U. r. Low.ll, i. 18. 
Lowndes r. Chisholni. ii. 238. 
Lowry r. MeKinney, ii. 04. 

r. Muldrow, ii. 702. 

r. Steele, i. 18;}. 

V. Tew, ii 181 ; iii. 247. 

V. Tilleny, iii. 482. 
Lows r Telford, i 65."). 
Ixiwtlier r. Carlton, iii. 3t)0. 
Loyd r. Brookinu, ii. 1)82. 
Lozier r. New York Cent. U. R.,iii. 451 
I^ozo r. Sutlierlanil, i. 374. 
Lueas >• Brooks, i. -V.^i. 

V. Henilrix, ii. 'M. 

V. Sawyer, i. 107, 109. 200. 201 
Luce »'. Cariev. ii 3;W ; iii. 437. 

(• Stubbs, i. 288, 280. 



xcu 



TABLE OP CASES CITED. 



Luch's Appeal, ii. 88. 
Lucier v. Marsales, i. 596 ; ii. 142. 
Luckett V. Townsend, ii. 63, 112. 
Luddington v. Kime, ii. 625. 
Ludlow V. Cooper, i. 702. 

V. New York & Harlem R. R., ii. 
8, 13, 18, 21, 24. 
Luffboroujjli V. Parker, iii. 346. 
Lufkin V. Curtis, i. 257 ; iii. 272. 
Lumpkin v. Eason, i. 417. 
Lund V. Lund, ii. 36, 46, 47, 55, 57. 

V. Parker, iii. 1.36. 

V. Woods, i. 314. 
Luning v. Brady, ii. 196, 266. 
Lunsford v. Turner, i. 595, 596. 
Lunt V. Holland, iii. 437. 459. 

V. Lunt, ii. 759. 
Lupton v. Lupton, ii. 207. 
Lush V. Druse, iii. 427. 
Lusk V. Hopper, ii. 96. 
Luther v. Winnisimmet Co., ii. 347, 376 ; 

iii. 59. 
Luttrel's case, ii. 343, 363, ,372, 398. 
Lutwich V Mitton, iii. 378. 
Lux V. Hoff, i. 709. 
Luxford v. Cheeke, ii. 624. 
Lyde v. Russell, i. 32, 33. 
Lydecker v. Bogert, ii. 259. 
Lydick v. Baltimore & O. R. R. Co., iii. 

494. 
Lydston i\ Powell, ii. 80. 
Lyerly v. Wheeler, iii. 242. 
Lyford v. Ross, ii. 120. 

V. Thurston, ii. 411, 52-3, 532. 
Lyle V. Richards, i. 40, 116. 
Lyles V. Lyles, i 695. 
Lyman v. Arnold, iii. 409. 

V. Hale, i. 14. 

V. Lyman, ii. 215. 
Lynch r. Allen, iii. 436. 

V. Livingston, iii. 334, 403. 
Lynde v. Hougli, i. 505, 5-39. 

V. Rowe, i. 25 ; ii. 142, 174. 
Lynn's Appeal, i. 147, 151. 
Lyon V. Kain, i. 257 ; iii. 18. 270, 271. 

V. Mcllvaine, ii. 203, 205 ; iii. 298. 

V. Parker, ii. 300. 

V. Reed, i. 580, 585. 
Lyons, Ex parte, ii. 85. 
Lyster v. DoUand, ii. 170. 



M. 



Mabury v. Ruiz, i. 429. 
Macaulay v. Dismal Swamp, i. 219. 
MacGregor v. Brown, &c. See Mc- 
Gregor, &c. 
Mack i\ Austin, ii. 219. 

V. Grover, ii. 264. 

V. Patchin, i. 519, 565. 

V. Wetzlar, ii. 113. 
Mackay v Bloodgood, iii. 288, 297. 
Mackentile v. Savoy, iii. 431. 



Mackey i-. Proctor, i. 183. 
Mackintosh v. Trotter, i. 32, 33. 
Macknet v. Macknet, iii. 501. 
Mackreth v. Symmons, ii. 90, 96, 93. 
Mackubin i-. Wlietcroft, i. 509, 512. 
Macleay, Re, i. 85. 
Macloon v. Smith, ii. 270. 
Macomber v. Cambridge Ins. Co., ii 

243. 
Macumber v. Bradley, ii. 654. 
Maddox v. Goddard, i. 093; iii. 421. 

I'. White, i. 578. 
Madgett v. Fleenor, ii. 521. 
Madigan v. McCarthy, i. 7, 154. 
Madison & I. PI. R. Co. v. Stevens, iii. 

318. 
Maeder v. Carondelet, i. 519. 
Maffitt V. Rynd, ii. 54, 157. 
Magaw V. Lambert, i. 507. 
Magee v. Magee, i. 417, 418; ii. 504; 
iii. 138, 146, 149, 152. 

V. Mellon, i. 265. 

V. Young, i. 201. 
Maggort V. Hansbargcr, i. 567. 
Magill V. Brown, iii. 552. 

V. Hinsdale, i. 595; iii. 296. 
Magniac v. Tiiompson, ii. 501. 
Magnolia, The, v. Marshall, iii. 440, 443. 
Magoon v. Harris, iii. 409. 
Magor V. Chadwick, ii. 380. 
Magruder v. Offutt, ii. 267. 

V. Peter, i. 490. 
Maguire v. Maguire, i. 201. 
Malian r. Brown, ii. 302, 365. 
Mahoney v. Van Winkle, iii. 90. 
Mahorner v. Harrison, ii. 515. 
Maigley v. Hauer, ii. 420. 
Main v. Feathers, i. 531. 
Main's case, i. 566. 
Maine v. Cumston, ii. 299. 
Major V. Deer, ii. 558. 
Makepeace v. Bancroft, iii. 435. 
Malim v. Keighley, ii. 779. 
Mallack v. Gallon, ii. 270. 
Mallett V. Page, iii. 308, 309. 
Malloney v. Horon, :. 201 ; iii. 80. 
Mallory r. Hitchcock, ii. 204. 

V. Stodder, iii. 338, 341. 
Malloy V. Bruden, iii. 156. 
Malone v. Majors, i. 337. 

V. McLaurin, i. 183. 
Maloney v. Fortune, ii. 278. 
Maltonner v. Dimniick, iii. 176. 
Manchester v. Doddridge, i. 618, 022, 
683 ; iii. 155. 

V. Durfee, ii. 657. 

V. Hough, i. 346. 

I'. Point St. Iron Works, iii. 447. 
Manchester Wareh. Co. v. Carr, i. 575, 

576. 
Manderson v. Lukens, ii. 592, 594, 697, 

745. 
Mandeville v. Welch, ii. 86, 87. 
Mandlebaum v. McDonell, i. 85 ; ii. 9. 



TABLE OF CASES CITED. 



xcm 



Mangum r. Piester, ii. 70:J. 
Maiilmttaii t'u. i'. lOvertsoii, i. 201. 
Manicf r. .Mamce, ii. (J2U, 7'.l7. 
Maiiior v. Mvcts, ii. ."JKl. 
Manly r. iViti-e, i. 7I1». 

r. Slasoii, ii. yj, Jio. 
Mann r. Karli-, ii. U^l. 

I-. IMsun, i. 'JJo, *_'45. 

r. FalciMn. ii. ll'J. 

r. HuttliL-s, i. 02U. 

V. lVur»on, iii. 427, 525. 

I'. Koj^cTs, i. .'507. 

I'. 'riiavLT, ii. 270. 
Manning c'Dovc, i. 378, 3'J7, 425. 

V. Laboree, i. 25U, 270, 2yO, 291, 
;J01. 

V. Markel, ii. 181. 

V. Sniiih, ii. o3'J, 360, 395, 399; iii. 
4(!8. 

V. Wasdalc, ii. 313, 3(59. 
Manning's cast.', i. 1H4 ; ii. 028, 78(3, 787. 
Mansuil's K-tate. ii. 207. 
Man.-ifield r. Dyer, ii 201. 205. 

V. Mansfic'lil, ii. 10. 719. 

V. Mclntyre, i. 200. 

r. l\'mliri)ke, i. 295. 
Mansur c. Hlakc, iii. 437, 443. 

f. I'ratt. i. 4W9. 
Mantle c Wellington, i. 491. 
.Man;z r. Buchanan, i 303. 
Manutactiirers' & Mecli. Bank v. Bank 

of I'erni., ii. 04. 
Mai)lL' V. Ku^^sart, iii. 91, 130. 
Mai.lL-8 I.-. Millon, i. 14; ii. 174. 
M.i|ips V. JSIiarp, ii. 80. 
.Mara v. Pic-rc-e, iii. 337. 
.M.irhurtr i: Cole, i. 700, 710. 
Marth c. Barrier, i. 35. 
Marty i: .M.irey, iii. 400. 
Marden r Babcock, ii. 67. 

V. Cliase, ii. 444, 409; iii. 395, 396, 
401. 
Marine Bank i\ International Bank, ii. 

l-_'y. 
Mariner r. Crocker, i. 640. 

r. Saunders, iii. 270. 
Mark r. Miir|)liy, i. 207. 

V. State, i. 450. 
Markell c. Eiclielberger, ii. 195. 
Marker /•. Marker, i. 102. 
.MMrkliam c. .Merritt, i. 210, 267, 279; 

ii. 271 ; iii. 207. 
-Markland r. Crump, i. 530; iii 503, 

51 14, 605. 
Markoe c. Wakeman, iii. 277. 
Marks r. .Marks, ii. 740. 

V. Marsli, i. 457. 

V. Pell, ii. 189. 

V. Sewall, i. 687. 

V. Tarver, ii. 715. 
.MarlborouRli c. Godolphin, ii. 720, 734. 
Marlcy v. Hodfier?, i. 693; ii. 803. 
Marlow t-. Smith, ii. 659. 
Marquette H. U. Co. i-. Ilarlow, i. G53. 



Marr r. Ciilliani, iii. 150. 
.Marruier v. .Sauiulers, i. 700. 
.MarBeiliii ('. Tbalinier, i. 187. 
.Marsh c. Austin, ii. 70, 145, 147 ; iii 
50ti. 

I'. Ilaniinond, i. 693. 

r. Lazenby, i. ;j59. 

I'. Lee, ii. 150. 

V. Pike, ii. 220. 

V. Kice, iii. 130. 

I'. Turner, ii. 91. 
•Marshall r. Barr, i. 433. 

V. Cave, ii. 244. 

V. Chribtnias, ii. 95. 

V. Clark, iii. 19'J. 

V. Conrad, ii. 2i:<0, 290, 203. 

V. I'rehore, i. 715. 

c. Fisk, i. 40; ii. 409. 470; iii. 887. 

V. Green, i. 0, 13, 15,071; iii. 305, 
370. 

v. King, ii. 594 ; iii. 17. 

V. Isiles, iii. 422. 

I'. Peters, i. 4. 

V. Pierce, iii. 83. 

V. Hobertit, iii. 345. 

V. Ku.ldick, i. 430, 460. 

V. Stewart, ii. 47, 58, 06. 

I'. Trumbull, iii. 278. 

V. Ulleswater Steam Nav. Co, iii. 
444. 
Marshall, &c. School v. Iowa, &c. 

School, ii. 2. 
Marston r. Gale, i. 065. 

i: Hobbs, iii. 4»2, 483, 601. 620. 

r. Marston, 259, 200; iii. 357. 
Martel v. Somers, i. 443, 465. 
Martin c. Baker, iii. 480. 

V. Ballou, ii. 8, 11. 

V. Bealty, ii. 103. 

V. Berens, i. 536. 

v. Crompe, i. 651. 

V. Drinan, ii. 299; iii. 493. 

V. Evansville, iii. 441. 

I'. Houghton, i. 0G2. 

V. Hughes, i. 395. 

r. Kirkpatrick, i. 355. 

t". Knowivs, i. 094. 

V. Martin', i. 203, 277, 838. 344, 649, 
555. 657, 500; ii. 4.38, 520 

i;. McKevnolds, i. 705; ii. 12^3, 127, 
203.'207. 

V. Mowlin. ii. 101, 103. 

i". Nance, iii. 438, 442. 

V. O'Brien, iii. 440. 

r. O'Conner, i. 531, 644. 

r. Quaitlebani. i. 690; iii. 844. 

V. Keed. ii. 123. 

V. Smith, i. 080. 

V. Tobin, i. 539. 585. 

V. Waddell. i. 68, 09; iii. 194, 200 
202, 2<t3. 

r. Wade. ii. 277. 

V. Willinmv iii. 340. 
Martinvau r. McColium, ii. 127. 



XCIV 



TABLE OP CASES CITED. 



Martyn v. Williams, ii. 300. 

Marvin v. Brewster Iron Mg. Co., ii. 384. 

V. Ledwith, ii. 59i. 

V. Titswurtli, ii. 84. 

V. Trumbull, i. 701. 
Marwick v. Andrews, ii. II. 
Marx V. McGlyim, ii. 550, 577. 
Mash V. Russell, i. 442. 
Maskelyne v. Maskelyne, iii. 568. 
Mason v. Ains worth, ii. 73, 74. 

V. Barnard, ii. 117. 

V. Beach, ii. 110, 115. 

V. Denison, i. 660. 

V. Fenn, i. 32, 33, 467. 

V. Hill, i. 74, 666 ; ii. 367, 868, 370, 
371. 

V. Holt, i. 656. 

V. Jones, ii. 5GI. 

V. Martin, ii. 570. 

V. Mason, i. 255 ; ii. 474, 561, 577. 

V. Payne, ii. 215; iii. 348. 

V. Wolff, i. 600. 
Mason's Estate, ii. 207. 
Mass. Hosp. Life Ins. Co. v. Wilson, i. 

596; ii. 142, 14-3, 144. 
Massey v. Goyder, ii. 385. 
Massie v. Watts, iii. 250. 
Masters v. PoUie, i. 14. 
Masury v. Southworth, i. 528, 530, 533, 

568 ; ii. 295, .300. 
Mather r. Carless, iii. 319. 

V. Chapman, iii. 60, 446. 

V. Ministers, &c., i. 63. 
Mathews i-. Aikin, ii. 224. 

V. Mathews, i. 338. 
Mathis V. Hammond, ii. 757. 
Matlack v. Roberts, i. 105 ; ii. 748. 
Matlock V. Lee, i. 313. 

V. Matlock, i. 701. 
Matthews v. Coalter, iii. 259. 

V. Duryee, i. 216, 217 ; ii. 174. 

V. Keble, ii. 794. 

V. Tobernor, i. 583. 

V. Treat, ii. 390. 

V. Wallwyn, ii. 101, 135, 257. 

V. Ward, i. 69, 125, 624 ; ii. 473, 
535, 573; iii. 52, 54, 55, 142, 
375, 382. 
Matthewson v. Johnson, i. 488. 

V. Smith, i. 239. 
Matthie r. Edwards, ii. 72. 
Mattice v. Lord, i. 509. 
Matti.x V. Weand, ii. 95. 
Mattocks V. Stearns, i. 189, 344. 
Matts V. Hawkins, i. G94 ; ii. 386. 
Matzen v. Shaeffer, ii. 201. 
Maulding v. Scott, ii. 787. 
Maule V. Aslimead, i. 619. 

V. Rider, i. 720. 

V. Weaver, i. 518 ; iii. 331. 
Maull V. Wilson, i. 157. 
Maund's case, i. 512. 
Maundrell v. Maundrell, i. 295, 491 ; ii. 
692, 697, 703. 



Maupin v. Emmons, iii. 335, 336, 343. 
Maure v. Harrison, ii. 225. 
Maus V. Worthing, iii. 255. 
Maverick r. Lewis, i. 475, 604. 
Maxey v. O'Connor, iii. 210. 
Maxfield v. Burton, ii. 88. 
Maxon v. Gray, i. 312. 
Maxwell v. Hosmer, iii. 433. 

v. Maxwell, i. 715 ; ii. 507. 
May V. Adams, iii. 406. 

V. Calder, i. 490. 

V. Frazee, ii. 566. 

V. Gates, ii. 194. 

V. Le Claire, iii. 378. 

V. Maj% ii. 62. 

V. Rice, i. 549, 630. 

V. Ritcliie, ii. 654. 

V. Tillman, i. 249. 
Mayberry v. Standish, ii. 348. 
Mayburry v. Brien, i. 207, 211, 216, 

229, 230, 232, 287. 
Mayer v. Mailer, i. 576. 
Mayfield v. Marsden, i. 371. 
May ham c. Coombs, ii. 95, 96. 
Mayhew v. Hardesty, i. 554. 
Mayho v. Buckhurst, i. 532. 

V. Colton, i. 395. 
Mayn v. Beak, i. 470. 
Maynard v. Esher, ii. 319. 

V. Hunt, ii. 105, 133, 168. 

V. Maynard, i. 499; iii. 310, 315. 

V. Weeks, iii. 449. 
Mayo V. Feaster, i. 167. 

V. Fletcher, ii. 106, 107, 140, 142, 
143, 173, 253. 

V. Judah, ii. 67. 

V. Libby, iii. 216. 

V. Merrick, ii. 217. 
Mayor of Carlisle, &c. See Carlisle, tS;c. 
McAfee v. Kiern, iii. 213. 
McAllister v. Montgomery, i. 703. 
McAlpine v. Burnett, ii. 92. 
McArthur v. Franklin, i. 216, 236, 304, 
310, 312; ii. 261,266. 

V. jMorris, iii. 525. 

V. Scott, ii. 538. 
McAuley v. Wilson, iii. 557. 
McAuley's Appeal, i. 454. 
IMcBrayer v. Roberts, ii. 45. 
McBride v. Patterson, i. 128. 

c. Smith, ii. 500. 
McBryde v. Wilkinson, iii. 342. 
McBurney v. Mclntire, i. 539. 
McCabe v. Bellows, i. 217, 246 ; ii. 182, 
188, 222. 

V. Grey, ii. 121 ; iii. 338. 

V. Hunter, iii. 287. 

V Ma?zuchelli, i. 382, 445. 

V. Swap, i. 239 ; ii. 182, 183, 201. 
McCabe's Petition, iii. 545. 
McCafferty v. McCaffertv, i. 200. 
McCaieb v. Burnett, i. 407, 439. 
McCall V. Carpenter, i. 713. 

V. Lenox, ii. 107, 142, 259. 



TAltLK OF CASES CITKD. 



XCV 



McCall r. \celv. iii. 114. 

V. Yard, ii. 'JtH. 
MtCiiliiioiit r. WliitiikiT, ii. 370. 
McCaim r. AtliiTton, iii. ;I17. 

r. Kilwards, iii. 27-'>. 
MfCaiis r. Hoard, i. ;;;><•. 
McCarroii r. t'ansidy, ii. 5'J, 238. 

r. O'Coimi'll, ii."4iH). 
McCartei' r. ( )rpliun Asvluin Sue, iii. 
o.VJ. 

V. Ti'lltT, 1. 3-JO. 327, 328, 330, 838. 
McCartiiy -•. White, ii. r.t3. 

r. Vnrk I'oimty Hank, i. 577. 
McCartiu'v c Hcistwick, ii. o7b. 

V. Iluiit, i. 5'Jl. 
McCartv r. Kiy, i. 487. 522. 

r. Kitcliciiman, ii. 333. 

V. I.eK'^'ett, iii. i~\). 

V. I'riiett, ii. 'Jl. 
^fc^aakill r. Latlirop, ii. 511. 
McCiiiinlial c. Uvan, iii 203. 
M< Caiik'V r. Grinu'M, i. 228, 220. 
Mc-Caiisland i'. Ficminj^, iii. 45U. 
MeClain r. Doe. i. 4U1. 

1-. Grt-UfT, i. 340. 
McClanalian /•. Harroii, iii. 174. 

I'. Cliambcra. ii. 128. 

r. Porter, i. 2'.»3, 200, 301. 
AfcOlane i-. White, ii. 63. 
McCIary v. Hi.xbv, i. 380, 382, 412, 413, 

■lliO. 
ML'(^learv v. Ellis, ii. 9. 
M' Ci.'ihin V. McClfllan. ii. 547. 
McCleskiy v. Leadbetter, iii. 112. 
Mc(^lintic i>. Wise, ii. 97. 
McClintock r. Hrydeii, ii. 405. 

r. Dana, i. 133. 
Mcriintock's Ay)pcal, i. 13. 
Mc(^lo\vrv r. Croghan, i. 621. 
McChmfj'i'. Ross, i. (380, 6".K) ; iii. 153. 
McClure v. Harris, i. 217, 228, 230, 307. 

V. Meleiidv. iii. 665. 
McCombs r. Wallace, i. 628. 
McConiiaughv r. Baxter, i. 3GG. 
McConnel r. Hololnifih. ii. 238, 2.39. 

r. Reed, iii. 344, 381. 
McConnell v. Blood, i 22, 27. 

V. Rowdrv, i. o'.to, (ioO. 

V. Hrown'iii. 2'.>'.», 3Uo, 340. 

V. Downs, iii. 120. 
Mt-rord r. Oakland (.1 M. Co., i. 604. 
McCornunk c. Iviniinel, i. 449. 
McCorniick r. Hishoj), i. 371 ; ii. 889. 

V. C'onnell, i. 513. 

V. Digl.y, ii. 134, 170, 196. 

V. Fitzniorris, iii. 260. 

V. Iloran, ii. 307, 300. 

V. McCorniick, i. 139. 

V. McMurtrie, iii. 81. 

V. Taylor, i. 285. 

V. Wilco.x. i. 433. 
McCorrv v. King's Heirs, i. 126, 132, 

182. 188. 180. 
McCosker f. Brady, ii. 653, 674. 



McCoy r. Oalloway. iii. 434, 454, 466. 

f.' .Monte, ii. 407, 472. 
.McCracki-n r. Sun Francisco, iii. 88. 
McCriidy I-. Hriybanc, iii. 401. 
.Mclraine r. Clarke, iii. 674. 
.McCraney i-. .McCraney. i. 254. 
McCrea r. Marsli, i. (W«. 

V. I'unnort, iii. 31'»i, 401. 
McCreaily c Se.xton, iii. 238. 

V. ThoinHon, ii. 347. 365, 306. 

I'. Virginia, ii. .390. 
McCrcery r. Fort^on, i. 426. 
-McCrory v. Foster, ti. 624. 
.McCue V. Gallagher, ii. 513. 
McCulloch r. Ku<laly, iii. 846. 

r. .Maryland, iii. 234. 
McCidlock*!'. Atcn, iii. 438. 
.McCullou^;ll V. Fclton, ii. 770. 

I', (iliddon, ii 053. 

V. Irvine, i. 137. 148, 154, 102. 

V. Wall, iii. 443. 
McCuUuin IV McKensie, iii. 677. 
.McCullv r. Smith, i. 315. 
McCuniber ,: Gilnian. ii. 2.'J8, 239. 244. 
.McCune l: Mc.Miohael, iii. ^6, 89. 
.McCurdy r. Canning, i. 706. 

f. Clark, ii. 128. 

V. Smith, i. 599. 
McCurdv's Appeal, ii. 279. 
McCtisker r. .McFvey. iii. 119, 128, 498. 
McDanicl v. Grace, i. 1»2. 

V. .Mace, i. 371. 

V. McDaniel. i. 298. 
McDaniels r. Colvin, ii. 168, 161. 

r. Lapliam, ii. 198. 
.McDermott r. French, i. 706, 708. 
McDevitt c. Sullivan, i. 696. 
McDillr. McDill, iii. :ib6 
McDonald v. Askew, iii. ;}6.3. 

V. Badjrer. i. 367, 416; ii. 31. 

V. Bear River, &c. Mg. Co., ii. 406 ; 
iii. 294. 

V. Crandall, i. 402, 418, 410, 433, 
434, 440. 

V. Ej;glcstun, iii. 255. 

V. Lindall, ii. 349 ; iii. 420, 459. 

V. McDonald, ii. 106, 611. 

«•. .MrKlroy, iii. 502. 

f. -MclA'od, ii. 64. 

V. Sims, ii. 536. 
McDonnell v. Pope, i. 580, 581. 
McDonougli (-. Gilman, i. 572, 673. 

i; Squire, ii. 63. 
McDougald v. Copron, ii. 181. 
McDowell r. Addams. iii. 10. 

V. Lloyd, ii. 79. 

V. Morgan, iii. 200. 

V. .Simpson, i. 635, 646 
McDiiff .-. Heauchamp, i. 700. 710. 
.McKlderry r. Flannagan, i. 651. 

c. Smith, ii. 107. 
McF.lrov i: McKlroy, ii. 6-37. 
.McP^iil.ien r. Haley, i. 609. 
.McFarl.in v. Wattun, i. 646. 



XCVl 



TABLE OF CASES CITED. 



McFarland i'. Chase, i. 617. 

V. Febiger, i. 200. 

V. Goodman, i. 261, 445; iii. 100. 

V. Stone, iii. 178. 
McFarliu v. Essex Co., ii. 390. 
McGahen ?:. Carr, iii. 2.38. 
McGan v. Marshall, ii. 145. 
McGarrity v. Byington, ii. 406 ; iii. 86. 
McGary r. Hastings, iii. 500. 
McGaughey v. Henry, iii. 17. 
McGee v. Gibson, i. 631. 

V. INIcGee, i. 256. 
McGill V. Ash, i. 692. 
McGillivray v. Evans, i. 718. 
McGinness v. Edgell, ii. 506. 
McGinnis v. Porter, i. 599, 603. 
McGinnis' Appeal, ii. 229. 
McGirr v. Aaron, ii. 555. 
McGiven v- Wheelock, ii. 206. 
McGlashan v. Tallniadge, i. 566, 576. 
McGlennery v. Miller, iii. 269. 
McGlynn v. Moore, i. 512, 515. 
McGonigal v. Plummer, ii. 95. 
McGoodwin v. Stephenson, ii. 107, 177. 
McGowan r. McGowan, ii. 513. 

V. Myers, iii. 491. 

V. Way, ii. 611. 
McGrath v. Boston, i. 482. 

V. Sinclair, i. 376. 
McGready v. McGready, ii. 67. 
McGregor v. Brown, i. 15, 147, 148, 152, 
153; iii. 364. 

V. Comstock, i. 102 ; ii. 449 ; iii. 
219. 

V. Gardner, ii. 513, 570, 719. 

V. Rawle, i. 651. 
McGuffey v. Finley, ii. 209. 
McGuire v. Benoit, ii. 107. 

V. Grant, ii. 381, 382. 

V. Ramsey, i. 701. 

V. Stevens, iii. 249, 423. 
Mc Hendry v. Keilly, i. 430. 
McHenry v. Cooper, ii. 224. 
Mcllvaine v. Harris, iii. 416. 

y. Smith, ii. 633. 
Mclnnis v. Lyman, iii. 511. 
Mclntier v. Shaw, ii. 117, 125. 
Mclntire v. Cross, iii. 18. 

V. Parks, 1. 518 ; ii. 215. 
Mclntire Poor School v. Zanesville C. 

& M. Co., iii. 652, 554. 
Mclnturf v. Woodruff, i. 378. 
Mclntyre v. Agricultural Bank, ii. 84. 

V. Humphreys, ii. 53. 

V. Mclntyre, ii. 655. 

V. Whitfield, ii. 106. 
Mclver >: Cherry, i. 216; ii. 266. 

r. Estabrook, i. 32. 
McJilton V. Love, iii. 232. 
McJunkin v. Dupree, i. 7. 
McKay r. Bloodgood, iii. 288, 207. 
McKean, &c. Land Imp. Co. v. Mitchell, 

iii. 330. 
McKee v. Angelrodt, i. 554. 



McKee ?•. Barley, i. 689. 

V. Hicks, iii. 304. 

V. Perchment, iii. 69. 

V. Pfout, i. 64, 126, 190. 

V. Straub, i. 711. 

V. Wilcox, i. 374, 382, 438, 452, 459. 
McKelvey v. Truby, iii. 81. 
McKehvay t-. Seymour, i 95 ; ii. 6, 14. 
McKenzie v. Lexington, i. 580. 

V. Murphy, i. 357. 
McKenzie's Appeal, ii 783. 
McKeon v. Bisbee, ii. 406. 

I.-. Whitney, i. 552, 553. 
McKeown v. McKeown, ii. 512, 518. 
McKey v. Welch, i. 68» ; iii. 277. 

V. Young, ii. 570. 
McKildoe v. Darracott, i. 503, 516. 
McKinley v. Peters, i. 689. 
McKinney v. Miller, ii. 212, 248. 

V. Reader, i. 580, 584. . 

V. Rhoads, iii. 299, 314. 

V. Settles, iii. 402. 
McKinster v. Babcock, ii. 158. 
McKinstrj' v. Conly, ii. 62, 66. 

?'. Merwin, ii. 156. 
McKinzie v. Perrill, iii. 337. 
MeKircher v. Hawley, ii. 142, 143. 
McKissack v. Bullingtou, i. 624. 
McKissick v. Pickle, ii. 16. 
McKnight v. Wimer, ii. 83. 
McLain v. Smith, ii. 273. 
McLanahan r. ]\IcLanahan, ii. 45. 
McLane v. Moore, iii. 178. 
McLarren v. Spalding, i. 558. 

V. Thompson, ii. 153. 
McLaughlin v. Johnson, i. 16, 18; ii. 
. 164. 

V. Nash, i. 7, 27. 
McLaurie v. Tiiomas, ii. 93, 94, 95, 97. 
McLean v. Bovee, i. 12. 

?;. Lafayette Bank, ii. 221, 229. 

V. McDonald, ii. 590. 

V. Nelson, ii. 568. 

V. Ragsdale, ii. 271. 
McLellan v. Turner, iii. 564. 
McLenan v. Sullivan, ii. 511, 515. 
JMcMahan v. Bowe, iii. 327, 349, 350, 351, 

352 533 
McMahill v. McMahill, i. 433, 448. 
McMahon v. Burchell, i. 696. 
McManus v. Campbell, i. 379. 

V. Carmicliael, iii. 439. 
McMaugh V. Burke, ii. 394. 
McMillan v. Richards, ii. 101, 109, 113, 
134, 273. 

V. Robbins, i. 132. 

V. Solomon, i. 577. 
McMillen v. Watt, ii. 381, 
McMinn v. Wiielan, iii. 241. 
McMurphy v. Minot, i. 512, 550, 553. 
McMurray v. Baltimore, iii. 445. 

V. Connor, i. 437. 
McNair v. Lot, ii. 189. 
McNamara v. Garrity, ii. 511, 512. 



TAlJLi: OF CASklS CITKI). 



\i-VU 



McXiiiiiet' I'. Morlumi, iii. IIG, 152, 171, 

17;J. 
iMcNiiuj^Iitoii I' MeNiUi(jhton, iii. 514. 
Mi-.Neiir c. .McCoiuLor. iii. 42;], 508, 600. 
McXeoly r. KiukiT, iii. -HI. 
Mc-.W-il r. lJrij;lit, iii. 2111. 
Mc.Noill f. Call, ii. 2.VJ. 
McNiel .•. Kfii.lall, i. 52S», 542, 545. 
McNiali r. {iiicTiird, ii. 557. 

I'. r<)|K', ii. 52;>. 
Mcriier.Hiiii I'. Fi)8ttT, iii. 428. 

V. lloiiht'l, ii. 15;]. 

I', .'^l■;^llilu^ i. (5'.t2. 

I'. Waltt'is, iii. 78. 
McC^ua.li- r. Wliaiuy. i. 385. 
Mc(2ia'siify '■. liie.sttT, ii. 2'.i5. 
MfCJiusten r. Mori^aii, i. 513. 
Mcl^uie r. IViiy, ii. 12:J. 
McKae c Farnjw, ii. 7.']4. 
McRavL'ii «•. Mcduiri". iii. 2'.)0, 338, 340. 
McHi'ii c (Viitral IJlv., i. 2;]. 
McKee r. .Meaii.s, ii. 7:57, 7.')(). 783, 7i)8. 
McKiininon v. .Martin, ii. 'J2. 
McUoborls r. Waslibunie, ii. 304, 305, 

3<)(i, 308, 310. 
McSorley r. Larisaa, ii. 230. 
McTagu'art /■. Sinitli, i. 372. 

r. 'riiornp.ioti, ii. Itj8. 
MeTavisli c. Carroll, ii. 328. 
MfVay r. Bl<)<).lf,'<>oii, ii. 120. 
McWliortur r. Writ;lu. iii. 3'.t4. 
McWilliaiiis r. Morfjan, iii. 70. 

V. Nisly, i. 85; ii. 8, 0; iii. 114. 
Meacliaiii r. Steriies, ii. 575. 
Menil r. liik'V, iii. 44'J. 

c. Y()rk,"ii. 100. 
Meatier v. IMaci', i. 543. 

r. Stone, i. 015, 656. 
Meailor r. .Meatlor, ii 88. 
Meaiiows v. I'arry, ii. 747. 
Mea;iliL'r r. Driscoii, i. 35. 
.Means r. Welles, i. 03; iii. 155. 
.Mebane f. .Mebane, ii. 533. 

V. Patrick, ii. 3:]7, 315. 
Mechanics' Hank v. Bank of Niagara, 
ii. 128. 

V. E.lwanls, ii. 220. 
Meclianics' Insurance Co. r. Scott, i. 

473, 475, 521. 
.Merlielen r. Wallace, i. 11. 
Metlt'onl V. Frazier, i. OMj. 
Meilford First I'ar. i*. Meilfi)ri], ii. 65G. 
.MeiUer v. Iliatt, iii. 4'.t."). 
Medley '•• KHiot, ii. 103. 

D.'iMedley, i. 270. 
Medway v. Xeedliani. i. 223. 
•Meecii V. Ensij^n, ii. 210. 

V. Meecli, i. 414. 
Mcelian v. Forrester, ii. 53. 
Meeker c. Hreintnnll. ii. 713, 714. 

r. Meeker, iii. 401. 

V. Wri>,'lit, i. 710. 
Mestarylee r. Naijlee. ii 500. 
Mejjerie «•. Asli, iii. 210. 
vol.. I. — g 



Mehaffy r. Dohh.s i. 001. 
.Meier ('. Hlunie, iii. 34b. 
.Meijj's A]i|ieal, i. 22. 
.Mei^lien r. Strong, iii. 339. 
Meily V. Hmler, iii. 78. 

I'. Wood, i. 7n4. 
Meister r. Muniey, i. 52ft. 
.Meli/et'8 Apped,' i. I0'.». 200. 
.Meilen /•. .M.)rrill, i. 570. 

c. Rutland, &c. K. \l., ii. 128. 

r, Whipple, ii. 210 ; iii. 332. 
.Mellev r. Ca.sev, i. 4«7. 
Melling V. \A.iik, i 024 ; iii. 175. 
.Mellon V. lA-innmn, ii 40. 
.Mellon's Ap|)eal, ii. 152. 
Mellor V. Lees, ii. 51. 

r. I'ilgriin, ii. 378. 
Mellow r. May, i. 580. 
.Melius r. Snowman, i. 180, 344. 
.Melrosa r. Scott, ii. 02. 
.Milslieinier r. (Jross, ii. (\]0. 
.Mellon r. Andrews, i. 3t><5, 383. 
Meivin r. Fellows, ii. 104. 

V. I'ropriitors of Locks, &c., i. 188, 
IHO, .ilO, ;]41 ; iii. 50, 141, 144. 
150, 150, 272, 283, 310, 422, 
427. 431. 

I'. Wl.iiinjr, ii. 313. 310, 345, 346, 
34'.t, 3'.I0 ; iii. 69, 00. 
.Mendel r. Hall, i. 010. 
.Mendenliall c I'ari.sli, iii. 300. 

V. Steckel, iii. 525. 
Meni i'. Katlibone, i. 572; ii. 151. 
Menkens r. Hlnnienthal, iii. 140. 
.Menou^ib's Appeal, i. 5r>0. 
Menude r. Delaire. ii. 45. 
Mcnzies i: Hreadalbin. iii. 02. 

i'. Li^rhtfoot. ii. 100. 

V. McDonald, i. 085 
-Meraman v. Cold well, i. 100. 
Mercantile .Mar. Ins. Co. v. Clark, ii. 

241. 
Merce<l Co. r. Fremont, ii. 400. 
Mercer v. Mercer, iii. 350. 

r. Selden, i. l8l ; iii. 178. 

V. Watson, iii. 224. 

V. Woo.i>;ate, iii. 79. 
Merchants' Hank r. Tliomson. ii. 205. 
.Mereier i: Cliace, i. 373, 380, 300, 405, 

451. 
Meredith v. Andres, i. 000. 

V. Citizens' Bank, ii. 518. 

V. Holmes, i. 415. 
Meriam r. Brown, i. 7 ; ii. 10.3. 

r. Ilarsen. iii 275. 401. 
Meriton v. Coombes. i. 0.'>6. 
Merriam r. Barton, ii. \x\, 2']5. 

V. Boston, C!., & F. Ii. U.Co., iii. 78. 

V. Merriam, ii. 254. 

V. Moore, ii. 218 

«'. ."^imonds, ii. till. 

f. Willis, i. 000. 
Merrick r. Wallace, ii 150; iii. 340. 
Merrifleld v. Cobleinh, ii 8. 



XCVIU 



TABLE OF CASES CITED. 



Merrifield v. Worcester, ii. 367. 
Merrill v. Berkshire, i. 699. 

V. Brown, ii. 4.35. 

V. Bullock, i. 650, 6-53. 

V. Chase, ii. 180, l'J8. 

V. Emery, i. 337 ; ii. 11, 20, 787, 
788. 

V. Harris, ii. 15. 

V. Preston, ii. 537. 

V. Sherburne, i. 200; iii. 22.3. 

V. St. Anthony W. P. Co., ii. 367. 
Merrills v. Swift, lii. 317. 
Merrimac River Locks, &c.. Proprietors 
of, V. Nashua & L. E. ii. Co., 
iii. 145. 

V. Springer, i. 64. 
Merriman i-. Lanfield, i. 411. 
Merritt r. Bartiiolick, ii. 123. 

V. Harris, iii. 509. 

V. Home, 1. 182. 

V. Hosmer, ii. 223. 

V. Judd, ii. 406. 

r. Lambert, ii. 180. 

V. Merritt, i. 370, 416. 

V. Morse, iii. 421, 505. 

V. Wells, ii. 91. 
Mershon i-. Duer, i. 214. 
Merwin v. Camp, iii. 291. 

1-. Wheeler, ii. 347, 392. 
Meserve v. Meserve, i. 283. 
Messenger r. Armstrong, i. 635, 689. 

V. Uhler, ii. 368. 
Messer v. Oestrich, iii. 492. 
Messiter v. Wright, ii. 222. 
Mestaer v. Gillespie, ii. 450. 
Metcalf V. Gillet, iii. 242. 

V. Putnam, iii. 405. 
Metcalfe v. Westaway, iii. 6, 404. 
Methodist Church v. Jaques, iii. 304. 

V. Wood, ii. 524. 
Metzgar's Appeal, ii. 218. 
Meuley i-. Zeigler, iii. 291, 292. 
Mevey's Appeal, ii. 279. 
Meyer v. Campbell, ii. 173. 

V. Claus, i. 443. 

V. Meyer, i. 197, 404. 

V. Phillips, ii. .347. 
Miami E.x. Co. v. U. S. Bank, ii. 45, 46, 

51,54,6.5, 101, 106, 177,229. 
Micliigan Air Line Ry. Co. i-. Mellen, 

ii. 512. 
Micliigan Ins. Co. v. Brown, ii. 158. 
Michoud V. Girod, ii. 77, 80, 570. 
Mickle V. Miles, i. 493, 578. 
Mickles r. Dillaye, ii. 238, 2.39. 

r. Townsend, ii. 114 ; iii. 117. 
Mickley's Estate, ii. 770. 
Mid. Kent Railway, In re, iii. 547. 
Middlcbrook v. Corwin, i. 20, 010. 
Middlebrooks r. Warren, i. 416. 
Middlesex Bank v. Minot, ii. 78. 
Middlesex Sav. Bank v. Bates, ii. 109. 
Middleton v. Findla, iii. 279. 

V. Perry, iii. 453. 



Middleton v. Pritcliard, iii. 4.39, 445. 
Middietown v. Sage, iii. 448. 
Middletown Sav. Bank v. Bacharach, 

ii. 177. 
Midland Ferry Co. v. Wilson, ii. 306. 
Midmer v. Midmer, ii. 512, 514, 518. 
Mildmay's case, i. 176. 
Miles I'. Barrows, iii. 435. 

V. Fisher, i. 677. 

17. Gray, ii. 127. 

V. James, i. 476. 

V. Lingerman, iii. 263, 267. 

V. Miles, i. 136, 137, 409; ii. 117. 

V. Smith, ii. 267. 
Milford V. Hoibrook, i. 570. 
Milhau V. Sharp, ii. 304, 308 ; iii. 449. 
Mill Dam Foundery v. Hovey, iii. 287, 

288. 
Mill River, &c. Mfg. Co. v. Smith, i. 4 ; 

iii. 363, 437. 
Millard v. Hathaway, ii. 512, 519. 
Milledge v. Lamar, i. 275. • 

Miller r. Auburn, &c. R. R. Co., i. 
063. 

V. Baker, i. 13, 

V. Ball, iii. 247. 

V. Beniley, iii. 427. 

V. Beverly, i. 290. 

r. Blose, ii. 512, 514. 

V. Bonsadon, i. 5!tl, 594. 

V. Bradford, ii. 153; iii. 339. 

V. Cherrv, iii. 431. 

V. Chittenden, ii. 436, 555, 556, 564, 
756 ; iii. 282, 344, 554, 557. 

V. Dennett, i. 715. 

V. Donaldson, ii. 196. 

V. Evans, ii. 83. 

V. Ewing, iii. 121, 123, 159. 

V. Finn, ii. 264. 

r. Garlock, ii. 339. 

V. Gilleland, iii. 260. 

V. Goodwin, iii. 399. 

V. Harbert, i. 478. 

V. Helm, ii. 195. 

V. Henderson, ii. 269. 

I'. Holman, iii. 127. 

V. Lang, i. 592, 600; iii. 98. 

V. Levi, ii. 25, 27. 

V. Lincoln, ii 189, 234. 

V. Lindse}', iii. 201. 

V. Lock wood, ii. 158. 

V. Macomb, ii. 798. 

V. Mann, iii. 437. 

V. Manwaring, iii. 260. 

V. JMarckle, i. 370, 432, 448 ; ii. 62, 
256. 

V. McBrier, i. 589. 

V. Menke, i. 378. 

V. Miller, i. 190, 191. 686, 691, 694, 
708, 710, 718 ; ii. 368, 369, 803, 
804 ; iii. 14, 17, 142, 382. 

V. Morris, i. 567. 

V. Pearce, iii. 357. 

V. Plumb, i. 27. 



TA15LE OF CASES CITED. 



XCIX 



Miller v. U. & W. U. R,. ii. 1C4. 

V. Shacklffonl. iii. UH, 7U8. 

w. Sliiiw, iii. ItW, ItJl. 

V. Slileids, i. iVJ'!. 

I'. Stump, i. "Jl I, 'JIT. 

i». Tlmlclicr, ii. iVl 1. 

V. Tlionipsun, ii. ld7o. 

V. Wliiltiir. ii. 155), '2'^d. 
Milk-r'.s Api)e.il, i. I'.'.Hi ; iii. H'J. 
MilliTsliip r. Bruokes, iii. oil. 
Miik'tt r. Fi.wlf, iii. IGV), 435, 458. 

V. rarkiT, iii. HIH, ;W0, .Vn. 
Milliuaii r. .Miliicaii, ii. 541. 
Millikeii r. MaiJL'V, ii. Ib8, 2.i4. 
iMillioii r. l{ili-y,"iii. W. 
Mills r. Hai-lir, i. 574. 

V. lianks, ii. 81. 

V. Ciitlm. iii. 478, 484, 610. 

('. ('t)Uiity (^omiiiissioaerM, ii. 305. 

V. Hailing, ii. 51, 04. 

f. Deiini.s, ii. 270. 

V. i;.>(T. i. 040. 

I?. Gore, iii. .•]03,;W4, 311. 

V. Grant, Estate of, i. 3H0. 

V. llaynes, ii. 555. 

V. Lock wood, iii. 400. 

V. Murrvinan, i. 54*J. 

V. Mills", i;5:W; iii. 488. 

V. Rcdick, i. 7. 

V. Shepard, ii. 100. 139, 172. 

V. Smith, iii. S.'Jo. 

V. Spauldinp. i. 420. 

V. St. Clair Co , ii. 310. 

V. Van Voorliies, ii. 2(!i». 

V. Vail Vooriiis, i. 210, 217. 2;30, 
231, 235, 202, 305, 300 ; ii. 200. 
Miliier r. Freeman, ii. 5iHi, 507, 50'J. 

I'. Hylanil, ii. 510, 535. 
Minis f. Lockitt, ii. 05. 

V. Mai-on & West R. H., ii. 05, 00. 

i\ Mims, ii. 150, 204. 205, 200. 
Miner v. Stevens, i. 045, 050 ; ii. 105. 
Minnesota Co. v. St. Taiil Co., i. 18; 

ii. 104. 
Minor r. Ilill, ii. 120, 130. 

V. Natchez, iii. 235, 237, 242, 243. 

r. Uoj^ers, ii. 40;!. 

I'. Sharon, i. 570. 
Minot r. Hrooks, iii. 107, 108. 

I'. Joy, i. 524. 

I'. Sawyer, ii. 250. 

r. 'rai>pan, ii. 5'.t2, Oil. 
Minshell c Lluyd. i. 3:'.. 
•Minter v. Croiiiim-iin. iii. 205. 

r. Wraith, ii. 770. 
Mirick r. Iloppin, i. 501, 500; ii. 142. 
.Mississippi Valiev & W. H. U. Co. v. 
Chienun U. U., ii. 1G.3. 

r. U. S. K.\. Co, ii. 100. 
Mistier r. O'Grady, i. 571. 
Mitciilfe r. We-itawav, iii. 40.3. 
Mitchell r. Bartlett. iii. 300. 

p. Berry, ii. 524, 671. 

V. Bo^-nn, ii. 72, 110, 115. 



Mitchell I'. Biirnliani, ii. .30, 4'J, 08, O'J, 
120. 121, 133, 154, 20». 

V. Clurk, ii. ll»4. 

('. Home liiM. Co., iii. 261. 

('. Kinsman, i 4^5. 

V. Ladew, ii. l2Vt. 

V. .Mitchell, i. 207, 337; iii. 60.3. 

c. Morse, ii. 7H4. 

r. rilUbury, iii 4!>2. 

V. Uyan, i. Ib2 ; iii. 308, 300, 3lo. 
315. 

r. Seipel, ii. 33.3. 

I'. .Sivier, i. 310. 

I'. .Shaiiley, ii. 254. 

V. Skinner, ii. 514. 

r. Speiice, ii. 717. 

V. Starbutk, i. 20, 711. 

V. Warner, iii. 470, 480, 487. 

r. Winslow, ii. 1(53. 
Mi.x 1-. Ilotchkiss, ii. 240, 244. 

1-. Kin^, i. 403. 

r. Smith, iii. 211. 
.Mi.xer r. Keed, iii. 413. 
.Mizell r. Burnett, ii. 11. 
Mizner v. Miinroe, i. 017. 
.Moale 1-. Baltimore, iii. 224, 450. 
.Mol.ile r. Kslava. iii. 203. 
.Mobile Bank v. I'lanters' Bank. ii. 128. 
.Mol)ile Dock & I. Co. v. Kuder. ii. 215. 
•Model L. House Ass. f. Boston, ii. 72, 

7(i, 204. 
Moderwell i-. Mullison, i. 700, 702. 
.Modrell r. Riddle, ii. 510. 
Mndat v. Smith, i. 547. 550. 
Motliitt V. South, i. i>17. 

i\ Strimn, ii. 703, 788. 
Moffitt V. McDonald, ii 570. 
.Mohawk Bridt'e v. L'tica R. R., ii. 310. 
.Mohawk R. R. r. Clute, i. 10. 
Mohkr's Ajjpcal, ii. 12H. 
.Midir V. I'armelee, ii. 300. 
.Mollett /•. Brayiie, i. 583. 
.Miillineau.x r. I'owell. i. 107. 
.Moltoii V. Camrou.x. i. 4.'^5. 
.Monanjue r. Monanpie. ii. 500. 
Moiiiiifien r. Ramsev. i. 300. 
Monk r. Butler, iii. 302. 

r. CajH-n, i. 405, -lOO. 
.Monmouthshire Canal v. Harford, ii. 

.3.!0, 312. 
Mononjjahela Bridge Co. r. Kirk, iii. 

442. 
Monroe >•. Bowen, ii. 5. 

V. .May. i. 372. 
Montague r Boston & A. R. R., ii. 4;'., 
2;l.5, 2:;4, 245. 

V. Dawes, ii. 70, 78, 79. 

V. Gav. i. 640. 

r. Hayes, ii. CAB. 
Montefir)re '•. Browne, ii. 716. 
Montgonurv r. Briiere, i. 210, 247 

V. Chad'wick. ii. 67, 235, '2iU\ 

V. Crais. i. 003. 

V. Dorion, i. 70 ; iii. 63, 207. 



TABLE OP CASES CITED. 



Montgomery i-. Hickman, i. 709. 

V. Middlemiss, ii. 251, 263, 274. 

V. Reed, iii. 510. 

V. Tutt, i. 430; ii. 249, 261. 
Montgomery County Bank App., ii. 159, 

16U. 
Monvpenny v. Bering, ii. 631. 
Moody V. Harper, i. 277. 

V. Hutchinson, iii. 212. 

V. King, i. 17y, 180, 273, 274, 275. 
Mooers v. Dixon, i. 417. 

V. Wait, i. IGO. 

V. Wliite, i. 79 
Moomey v. Maas, ii. 262, 268, 271. 
Mooney v. Blanchard, iii. 611. 

V. Brinkley, ii. 141. 

i\ Burcliard, iii. 532. 
Moore, Ex parte, i. 337. 

V. Beasiey, i. 591, 636, 650. 

V. Beasom, ii. 181. 

V. Bennett, iii. 348. 

V. Bickliam, ii. 455, 456. 

V. Boyd, i. 617, 630, 636, 657, 659. 

V. Burnet, ii. 573. 

V. Cable, ii. 189, 235, 238. 

V. Clarke, ii. 191. 

V. Cornell, ii. 121, 122. 

2'. Cottingham, ii. 546, 563. 

V. Dimond, ii. 657, 709 ; iii. 558, 
564. 

V. Dunning, i. 447. 

V. Ellsworth, i. 163, 164. 

V. Esty, i. 204, 231, 282, 237, 245, 
248. 

V. Farrow, iii. 98, 101. 

V. Fletcher, iii. 412, 421. 

r. Frost, i 312, 432. 

V. Gordon, iii. 248. 

V. Hazleton, iii. 313. 

V. Howe, ii. 764, 767. 

V. Hutchins, i. 202. 

V. Jourdan, iii. 337. 

V. Kent, i. 200, 202. 

V. Littel, ii. 596, 597, 657 ; iii. 104, 
122. 

V. Luce, i. 132 ; iii. 177. 

V. Lyons, ii. 588, 596, 597. 

V. Magrath, iii. 461. 

V. Mason, i. 656. 

V. Mayor, &c., i. 198, 199, 200, 261, 
2«0. 312. 

V. Merrill, iii. 480, 501. 

V. Miller, i. 479. 

V. Moberly, ii. 225, 229. 

f. Moore, i. 712; ii. 244, 544; iii. 
251, 553, 557. 

V. Morrow, i. 649. 

V. Parker, ii. 649. 

V. Pendleton, iii. 297. 

V. Pitts, ii. 4. 

r. Rake, ii. 772, 803 ; iii. 14. 

V. Rawson, i. 672; ii. 340, 358, 360, 
.362, 363, 395. 

V. Richardson, i. 249. 



Moore v. Rollins, i 218, 230, 232. 

V. Sanders, ii. 9. 

V Shultz, ii. 497. 

r. Smaw, ii. 407 ; iii. 200, 418. 

r. Spruill, i. 605. 

V. Tisdale, i. 257. 

V. Titman, i. 432; ii. 108. 

V. Townehend, i. 166. 

V. Vinten, i. 341. 

V. Wade, ii. 53. 

V. Ware, ii. 125. 

V. Weaver, ii. 614, 687, 657. 

V. Weber, i. 475, 521, 562, 565, 569, 
575. 

V. Wilkinson, iii. 204, 206. 

V. Worley, iii. 351. 
Moore's Appeal, ii. 117, 218. 
Moorecroft v. Dowding, ii. 549. 
Moorehouse v. Cotheal, i. 137, 148. 
Mordecai v. Parker, ii. 566. 
Mureau v. Detcheniendy, i. 102. 

V. Safferans, i. 701 ; iii. 283. 
Morehead v. Watkyns, i. 638, 643 
^loreliouse v. Heath, iii. 530. 
Moreton r. Harrison, ii. 91, 97. 
Morey v. Herrick, iii. 568. 

i". Maguire, ii. 106. 
Morgan v. Bissell, i. 480, 482. 

V. Clayton, iii. 345. 

V. Davis, ii. 133, 179, 198. 

V. Donovan, ii. 164, 165. 

V. Graham, iii. 128, 251. 

V. Herrick, i. 721. 

V. Johnston, ii. 164. 

V. Earned, iii. 110. 

v. Moore, iii. 459. 

V. Morgan, i. 173, 176, 177; ii. 189, 
190, 540, 763, 765. 

V. Railroad Co., iii. 91, 101. 

V. Reading, iii. 436, 439. 

V. Stearns, i. 380. 
Morice v. Bisliop of Durham, iii. 568. 
Moring v. Abies, iii. 154. 
Moritz V. Hoffman, iii. 357. 
Morley v. Rennoldson, ii. 10. 

V. Saunders, i. 130. 
Morrell v. Fisher, iii. 425. 
Morrice's case, i. 722. 
Morrill v. De la Granja, i. 660. 

V. Hopkins, i. 442. 

i\ Mackn)an, i. 646. 

V. Morrill, i. 718. 

V. Noyes, ii. 164. 

V. Titcomb, iii. 457. 
Morris v. Bacon, ii. 118, 125. 

V. Callanan, iii. 161. 

V. Edgington, ii. 355. 

V. French, i 5, 9. 

r. Harris, i. 721. 

V. Henderson, iii. 312. 

V. Morris, i. 703. 

V. Niles, i. 051. 

I'. Ni.xon, ii. 45. 

V. Oakford, ii. 220. 



TAULK OF C.\-^i:> < 1 1 l.l>. 



cl 



Morris r. PenroRo, iii. K)G. 

V. I'liiiliT, ii. Ti'^o. 

I'. I'lii'lps, iii. 6:^7. 

r. Uuwiin, iii. I't^J-J. 

V. Siirtrfnt, i. "JOO. I.ij, 160; iii. 3.'J;{. 

I'. Sti'i)la«ii9, iii li!^-'. 

V. Tiliot8i)n, i. h'2\. 

V. Viinderfii, iii. 2o8. 

V. Ward, i. 420, 4H«J. 

V Way. ii. 84. 
Morris Canal, &c. Co. r. I^owis, iii. 89. 

c. liviTson, iii. :{1»'.». 
Morri.soii r. Hassett, iii. 98. 

r. Mean, ii. 80. 278. 

V. Uockwitli, ii. 210. 

V. Berry, i. 10. 2(J. 

I'. HieriT, ii. o.')!. 

f. Howinaii, iii. 2^.15. 

r. niiL-i<iier, ii. 141, 258. 

V. Uiici<s]i(irt, ii. 'A12. 

V. Chadwiik, i. 557, 559, 560, 564. 

I'. Ciiapin, iii. 161. 

V. Hays. iii. 104. 

I'. Keen, iii. 4;}tJ. 

!•. Kelly, iii. 148, 306, 335, 336,344. 

r. Kiiii,', ii. ;>.U, 33.). 

I'. Mari|nardt, ii. 304. 

V. .MoDaniel, i. 302, 376. 391, 407. 

V. .McLeod, ii. 235. 

V. Men.leiihall, ii. 122. 

V. Morrisdii. iii. 82. 

V. Norman, iii. 108. 

r. Ho8sij;nol, i. 409. 

V. Underwood, iii. 479, 528, 529, 
630. 

V. Wilson, iii. 78, 113, 123, 208, 
42:». 
Morrow >•. Scott, iii. 16. 

V. Willard, iii. 424, 450. 
Morse v. Aldricli, i. 531 ; ii. 295, 300; 
iii. 128. 

V. Bassett, ii. 254, 255. 

V. Carpenter, iii. 279, 280. 

i". Cliurcliill, iii. 147. 

V. Copeland, i. 001, 008, 070, 072 ; 
ii. 397. 

V. Curtis, iii. 499. 

V. Goddard, i. 250. 521, 595, 597, 
018; ii. 143, 144. 

V. Hill, ii. 522, 52:5. 524. 

c. Maddo.x, i. 570. 

V. Marshall, iii. 410. 

i: Merritt, ii. 105, 251. 

V. Hobcrto, i. 599. 

V. Sliattuck. ii. 420. 

r. Williams, ii. 3;>8. 
Morton i\ Barrett, ii. 498, 538. 

v. Blnnkenship, iii. 209. 

V. Edwin, iii. 242. 

V. Hall. ii. 75. 

r. Noble, i. 201. 

V. Heeds, iii. 235. 

V. Weir, i. 50<V 

V. Woods, i. 485, 605. 018 ; ii. 143 



Mosby r. Mo.tbv, ii. 551. 555. 
.Mosely V. Mursiiall. i. 129; ii. 208. 

f. .Mosely. ii. 4')3, 472. 

I'. Uober'ts, ii. 5tN), 54U. 
Moses c. .Miirjjatroyd. ii. 226. 
Mosiier r. .Mor^lier. i. 209. Ml. 
Mosluer r. .Meek. ii. 91, 97. 

r. Kedin^, i. 479. 591, 690, 630. 
Mosley v. Mosley, ii. UIK). 
Moss >-. (iallimore, ii. 142. 

V. (ireeii, ii. 03. 

I'. Moss. ii. 510, 611. 

r. Kiddle, iii. 318. 

I'. Scott, iii. U58. 

r. Shear, iii. 241. 

V. Shel.lon, iii. 408. 

V. Warner, i. 357. 430, 440, 457 ; ii 
203. 
Motley I'. Blake, i. 710. 

I'. Sar^'eant. iii. 449. 451. 
Mott V. Ackernian, ii. 407, 717. 

V. Clark, ii. 127, 154. 

V. Palmer, i. 4. 5, 10. 18, 20, 34 , 
iii. 410, 479, 489, 500. 

V. N. Y., (Jnt., & W. Ky. Co., ii. 
705. 
Moughon r. Masterson. i. 431. 
Mimie r. (larrelt, i. 525. 
Moulton V. Newburyjjort Co., ii. 307. 

r. Kohinson, i. 0(i4. 000, 007, 010. 
Mounce c. Byars, ii 80, 92. 
Mountjoy's case. ii. 403. 
.Mount Pleasant Bank r. Sprigg. ii. 51. 
Movaii I-. Hays. ii. 547. 
.Mowry v. Sheldon, ii. 357. 
•Moyer's Appeal, iii. 248. 
Moynahaii <•. Moore, ii. 180. 
Moyor V. .McCullough, iii. 207. 
Muckleston i'. Brown, iii. 568. 
Mufrford r. Richardson, i. 046, 660. 
Muhlig V. Fiske, ii. 72. 281. 
Muir r. Cross, ii. 91. 
.Muldrow r. .Jones, i. 050. 
Mulford ;•. Peterson, ii. 122. 130. 
.Mullanpliv r. Simpson, ii. 182. 
.Miillany r. Mullany, i. 170. 
.Mullenr. Strieker." ii. 304. 
.Midler t: Bo^r^'s. i. 099. 
Mullikin r. Mullikin. ii. 98. 
Mumford v. Brown, i. 509. 097 ; ii. 889. 

I-. Whitney, i. (KJl.t It •,•_', 0*53, 660. 
Mummy c. Johnston, iii. 232. 
Munchus I'. Harris, i. 'Ml). 
.Mimicipality No. 2 i-. Orleans Cotton 

Press, iii. (iO 
Mimn r. Worrall. iii. 414. 403. 
Mimnorlyn r. Munnerlyn. i. 191. 
Munroe 'r. Luke. i. 03. ii'.tO. O'.t.'i, 717. 

V. Stickney. i. 717 ; iii. 412. 

i>. Walbridije. i. 717. 

r. Wanl. iii. 137. 
Mun«ell I-. Carew. i. (Kt8. 
Mun'*on r. Berdan, ii. 713, 714. 

f. Munson. ii. 106, 10l», 139. 



Cll 



TABLE OF CASES CITED. 



Murdock '■. Chapman, ii. 119, 122 ; iii. 
4o'.t. 

I'. Gilchrist, iii. 40J. 

V. Hughes, ii. 524, 535, 536. 

V. Katulift; i. 497. 
Murdock's case, ii. 115, 141. 
Murphv V. Callev, ii. 40, 48, 50, 51. 

V. Campbell, iii. 411, 412, 421, 431. 

V. Copelaml, iii. 436. 

V. Craiich, i. 456. 

V. McNeill, i. 424. 

V. Nathans, ii. 507. 

V. Springer, iii. 165. 
Murray v. Barney, ii. 158. 

v. Cherrington, i. 471. 

V. Emmons, i. 487. 

V. Hall, i. 693. 

V. Harway, i. 503, 515. 

V. bhanklin, i. 486. 

V. Smith, iii. 522. 

V. Stair, iii. 318, 319. 

V. Walker, ii. 45, 111. 

V. Welch, ii. 339 ; iii. 289. 
Murry v. Sell, ii. 511, 512, 515, 518. 
JMusham ?•. Musliam, iii. 156. 
Muskett c. Hill, i. 662. 
Muskingum V. Turnp. Co. v. Ward, iii. 

281. 
Musser v. Brink, i. 605. 
Mussey v. Holt, i. 527, 548; iii. 326. 

V. Sanborn, i. 715. 

V. Scott, i. 657 ; iii. 294. 

V. Union Wliarf, ii. 361. 
Mutton's case, ii. 666. 
Mutual F. Ins. Co. v. Deale, ii. 507. 
Mutual Loan, &c. Assn. v. Elwell, ii. 

15L 
Muzzy V. Knisjht, ii. 195. 
Myer v. Hoblis, ii. 381. 

V. Whittaker, i. 4. 
Myers v. Ford, i. 381, 428. 

V. Gemmel, ii. 319, 363, 365. 

V. Little, ii. 511. 

V. Myers, ii. 599. 

t'. Ross, iii. 336. 

V. Sanders, iii. 263. 

17. White, ii. 101, 103, 108, 143. 



N. 

Nagle V. Macy, ii. 110, 113, 123. 
Naglee v. IngersoU, i. 599. 
Nailer r. Stanley, ii. 215. 
Nairn v. Prowse, ii. 95. 
Napier v. Bulwinkle, ii. 340, 365, 380, 
382, 385. 

V. Darling, i. 528. 
Napper v. Sanders, ii. 615, 619, 634. 
Nary v. Merrill, iii. 358. 
Nash V. Cutler, ii. 555. 

V. Minneapolis Co., i. 570. 

r. N. E. Ins. Co., ii. 354. 

V. Peden, ii. 341, 346. 



Nash r. Spofford, iii. 123, 124. 
Nason v. Allen, i. 248. 

V. Grant, ii. 65 ; iii. 344. 
Nathans v. Arkwright, iii. 266. 
National Bank v. Grand Lodge of Mo., 

ii. 219. 
National Exch. Bank v. Watson, iii. 

355. 
National Oil Ref. Co. v. Bush, i. 652. 
Naumberg v. Young, i. 520, 576. 
Nave V. Berry, i. 523, 547, 566, 567, 578. 
Nazareth Inst. v. Lowe, i. 217 ; ii. 93. 
Neal V. Gregory, iii. 81, 82, 89. 

V. Sawyer, i. 359. 
Neale v. Hagthrop, ii. 234, 239. 

V. Mackenzie, i. 561. 

V. Neale, iii. 248. 

V. Perkerson, i. 416. 
Neale's Appeal, ii. 500. 
Nease v. Capehart, ii. 535. 
Needham r. Allison, i. 610. 

r. Bronson, i. S4.3. 

V. .Judson, iii. 273, 458. 
Neel r. Beach, ii. 715. 

V. Neel, i 151. 
Neeley v. Sutler, i. 181, 182. 
Neglcy 1-. Morgan, i. 535. 
Neill V. Devonshire, ii. 392. 

r. Keese, ii. 518. 

v. Lacy, ii. 401. 
Neilson v. Lagow, ii. 538. 
Neimcewicz v. Gahn, ii. 49, 224, 228, 230. 
Nellis V. Lathrop, i. 549. 

V. Nellis, ii. 765, 770. 
Nelson r. Butterfield, ii. 341 ; iii. 443- 

V. Hall, iii. 434. 455. 

r. McCrary, i. 355, 415. 

V. Nelson, i. 6, 15. 

I'. Pinegar, ii. 108, 115. 

V. Sims, iii. 206. 
Nepean v. Doe, i. 654. 
Nerhooth v. Althouse, i. 599. 
Nestal V. Schmid, ii. 515. 
Nettleton v. Sikes, i. 15, 671. 
Nevell V. Nevell, ii. 437. 
Neves v. Scott, ii. 529, 720. 
Nevil r. Saunders, ii. 498, 501. 
Ncvin's Appeal, i. 411. 
Nevitt V. Bacon, ii. 191, 193. 
Newall V. Wright, i. 548; ii. 105, 145, 

169, 190, 271. 
New Bedford Inst, for Sav. v. Fairhavsn 

Bank, ii. 225. 
Newbold v. Newbold, ii. 108. 

V. Ridgeway, i. 292. 
Newburgh Turnp. Co. v. Miller, ii. 307, 

308. 
Newbury Bank v. Eastman, iii. 325, 326. 
Newcomb v. Bonham, ii. 45, 65, 66. 

V. Dewey, ii. 262. 

V. Harvey, i. 551. 

V. Presbrey, iii. 123. 

r. Pamcr, i. 600. 

V. Stebbins, i. 549 ; iii. 6. 



TABLK OF CASES CITED. 



cm 



NVwell V. Hill, i. r>\H ■ ii 203; iii. 331. 

4;i4. 
New KnuUiiil Jowrlry Co. v. Meriuiii, 

i. 4'-'0. JitS; ii. 17t<. 204, 20o. 
Newliali V. IJurt. ii. 67. 
V. Ire-soii, iii. 4;!H, 44H. 
V. LvMM Saviii^js Mank, i.217, 305; 

"ii. 75, ISJ, 2(tii, 271. 
i>. l*icr«'o, ii. (U. 

I.. Wlu'eltT, i. 8'.); ii. 498, 632. 637 ; 
iii. l:!(l, 280. 
New Hniiipsliire Hank r. Willanl, ii. 

lo'.t, lltj. 
Xl-w Haven St. Co. i". Sarpcnt, iii. 448. 
Nuw Ipswich Factory i'. Batclielder. ii. 

82; >. 

New Jersey Zinc Co. i'. Boston Frank- 

linite Co.. iii. 42'J. 
Newkerk r. Newkerk, i. 00. 
Newianil r. Ncwland, ii 783. 

V. SliepiianI, iii. 6()(J. 
New T>. union Bank r. Lee, ii. 225. 
Newiniin r. Anderton, i. 678. 

c. ("Iia])ni:in, ii. 15.3, 175, 17G. 

V. K.hvanls. iii. 89. 

I'. Home Ins. Co., ii. 206. 

V. Jackson, ii. 84. 

i: Nellis. ii. 317. 321. 

V. Hiitter, i. (!02, G03. 

r. Samuels, ii. 82. 
Newmarket r. Smart, ii. 650; iii. 176. 
New Orleans r. De Armas, iii. 205. 

V. United States, i. 09; iii. 0-3, 05. 
New Orleans, &c. U. R. Co. c. Jourdain, 

iii. 508. 
New Salem v. Eagle Co., ii. 300. 
New Slioreham i< Ball, iii. 160. 
Newton i-. Cook, i. 238, 246, 308, 310; 
ii. 182. 

V. Eddv, iii. 437. 

V. Griffllli. ii. 703, 705. 

r. Harland, i. 046, 663. 055, G56, 067. 

V. Marsden, ii. 10. 

V. McLean, ii. 94, 625, 606. 

V. Newton, i. 094. 

V. Sly, ii. 112. 

V. Summev. i. 369. 

V. Wilson,' i. 578. 
New York i-. Mabie, i 493, 619, 620, 

558; iii. 523. 
New York Bank r. Cary, ii. 611. 
New York Life Ins. Co. v. Milnor, ii. 
320. 

f. Smith, ii. 151. 
New York, llousutuuic, & N. R. R. r. 
Boston, Hartford. & E. R. R., ii. 308. 
Nice's Appeal, ii. 152. 
Nicholas c. Chamberlain, ii. 328, 320. 

r. Purczell, i. 300, 404. 
Nicholl V. Davidson Co., i. 425, 454. 

r. Dupree, iii. 10. 

r. N. Y. & Erie H. R.. i. 628. 
Nicholls r. Peak, ii 575. 
Nichols V. Allen, ii. 600. 



Nichols V. Aylor, ii. 843. 

r. Ba.xter. ii. 240. 241, 243. 

V. Cabe, ii. 54. 

r. Denny, i. 678; ii. 60-1. 

I'. Eaton, ii. 6:]3, 634. 

V. Luce. ii. 340. 

V. Nichols, i. 716. 

V. Reynolds, ii. 54. 176; iii. .338. 

r. Smith, i. 688. 

)-. Thornton, ii. 618. 

f. Weiiiworth, ii. 304. 

r. Williams, i. 624. 636, 6.39. 
Nicholson r. Hulsey. ii. 660; iii. 260. 

«'. Munigle, i. 557. 027. 
Nickells r. Atherstone. i. 685. 045. 
Nickerson r. Buck, iii. 5.W, 540. 
Nicklin v. Williatns, ii. 384, .303. 
NicoU V. N Y. & Erie R. R., i. 528 ; 
ii. 13, 15. 10, 802. 

r. Scott, ii. 717. 

V. Walworth, ii. 570. 
NicoUs r. Sheflleld. ii. f.OO 
Niedelet v. Wales, i. 660. 
Nightingale v Biirrell, i. 110, 117; ii. 
740, 741, 745, 748, 753, 772. 

V. Hidden, i. 174 ; ii. 406. 603; iii. 
400. 470. 
Niles V. Grav, ii. 763. 

V. Nye.'i 238. 243. 

V. Patch, iii. 440. 

V. Sawtell, iii. 503. 
Nims V. Palmer, iii. 109. 

V. Sherman, iii 98. 
Niver v. Crane, ii. 614, 678. 
Nixon V Porter, iii. 148. 
Noble r. Bosworth. i. 27 ; iii. 410. 

V. Enos. iii. 645. 

V. Googins. iii. 620. 

I'. Hook, i. 385. 

1-. McFarland, i. 001. 

f. Sylvester, i. 24. 
Nobleboro r. Clark, iii. 296. 
Noel r. Jevon. i. 213. 

V. McCrory, i. 651. 
Noke »'. Awder, i. 485, 693. 
Noonan r. Albany, ii. .'300. 
Norcross r. Xorcross. ii. 176. 
Norflect v. Cromwell, ii. 298. .300, 317. 
Norfolk (Duchees of) v. Wiseman, i. 

005. 
Norfolk's (Duke of) case, ii. 780, 787, 

789. 
Norman i*. Bellman, i. 450. 

1-. Burnett, ii. 547. 

r. Towne, ii. 674. 

V. Wells, i. 531 ; ii. 800. 
Norris v. Clark, i. 330. 

V. Gould, i. 695. 

r. Harrison, i. 133. 

1-. Johnston, ii. 633. 

r. Laberee, ii 17. 

V. Milner. ii. 1''.. 

V. Morrill, i. 014. 

V. Morrison, i. 409; ii. 216. 



CIV 



TABLE OF CASES CITED. 



Norris v. Moulton, i. 377, 382, 392, 393, 
409, 423,440; ii. 183. 

I'. Sullivan, i. G'JO. 

V. Wilkinson, ii. 87. 
Norris' Appeal, iii. 249, 428. 
North r. Barnum, i. 598, 602, 603. 

V. Nichols, i. G28. 

V. Philbrook, i. 89. 

V. Shearn, i. 382, 426. 
Northam v. Hurle}-, ii. 352, 373. 
Northampton Mills v. Ames, ii. 105, 117, 

144. 
Northcote i'. Duke, ii. 23. 
Northcutt v. Whipp, i. 267, 272, 273, 

275. 
Northern Bank of Kentucky v. Roosa, 

i. 494. 
Northern Cent. R. R. v. Canton Co., i. 34. 
Northrop v. Sumney, iii. 435. 
Northrup v. Brehmer, iii. 340. 
Northy v. Northy, ii. 105, 127. 256. 
Norton i\ Babcock, iii. 529. 

V. Cooper, ii. 239. 

V. Frecker, i. 127. 

V. Jackson, iii. 506. 

t,". Leonard, ii. 461, 498, 573; iii. 
2S0. 

V. Norton, ii. 538. 

V. Ray, ii. 559. 

V. Sanders, iii. 111. 

V. Stone, ii. 578. 

r. Webb, ii. 116. _ 
Norvell r. Johnson, ii. 97. 
Norwicli V. Hubbard, ii. 109, 133, 172. 
Norwood V. Fairservice, iii. 259. 

V. Marow, i. 246, 255, 290, 316. 
Notte's Appeal, ii. 96. 
Nottingham v. Cnlvert, i. 262. 

V. Jennings, ii. 761. 
Nourse ". Meriam, ii. 631. 

V. Nourse, iii. 100. 
NowelUr. Boston Acad. N. Dame, ii. 3. 
Noyes v. Clark, ii. 67, 68. 

V. Dyer, iii. 164. 

V. Morrill, iii. 457. 

V. Rockwood, iii. 492. 

V. Sturdivant, ii. 175. 192. 
Nudd V. Hobbs, ii. 393 ; iii. 448. 
Nugent V. Riley, i. 518 ; ii. 45, 59, 65, 

180; iii. 331. 
Number Six Township, Props, of, v. 

McFarland, i. 622 ; iii. 137. 
Nunnally v. White, iii. 117, 125, 532. 
Nutt V. Norton, iii. 57G. 
Nuttall V. Bracewell, iii. .361. 
Nutter V. Russell, ii. 777. 
Nutting r. Dickinson, iii. 400. 

V. Herbert, iii. 337, 526. 



O. 

O'Bannon v. Pareraour, iii. 119. 
O'Brien v. Brietenbach, i. 499. 



O'Brien i-. Capwell, i. 575. 

V. Kusterer, i. 5. 

V. Schayer, ii. 350. 

t'. Young, i. 435. 
O'Connell v. Bryant, iii. 449. 
O'Connor v. Daily, i. 522. 
O'Donnel v. Kelsey, iii. 459. 
O'Donnell v. Hitchcock, i. 5. 
O'Dougherty v. Aldrich, i. 715. 
O'Fallon v. Dagsett. iii. 4.39, 443. 
O'Ferral v. Simplot, i. 197, 200. 
O'Hanlin v. Den d. Van Kleeck, iii. 53. 
O'Hara v. Dudley, ii. 526. 

V. Richardson, iii. 140, 160, 165. 
O'Keefe v. Calthorpe, ii. 558. 

V. Kennedy, i. 515. 
O'Kelly V. O'Kelly, iii. 306, 319, 328. 
O'Linda v. Lothrop, iii. 108, 450. 
O'Neal V. Robinson, iii. 292. 
O'Neil V. Cappelle, ii. 53. 

V. Vanderburg, iii. 125. 
O'Rorke v. Smith, ii. 330. 
Oakes v. Chalfont, ii. 677, 768, 790. 

V. Marcy, iii. 117. 

V. Monroe, i. 640. 
Oakman v. Dorch. F. L Co., i. 7. 
Oastler v. Henderson, i. 583. 
Oates V. Cooke, ii. 637. 
Oatman v. Fowler, iii. 160. 
Obert V. Obert, i. 713 ; ii. 570. 
Ocheltree v. McClung, ii. 453, 467, 473; 

iii. 385 
Odell r. Montross, ii. 53. 

r. Odell, ii. 760 ; iii. 557. 

V. Solomon, i. 531. 
Odiorne v. Lyford, i. 694. 

V. Mason, iii. 334. 
Odlin V. Gove, iii 85, 86, 91. 
Offutt V. Scott, i. 703. 
Ogburn v. Connor, ii. 378. 
Ogden V. Gibbons, ii. 307. 

V. Grant, ii. 59. 

V. Lucas, i. 11. 

V. Porterfield, iii. 431. 

V. Stock, i. 6, 7. 
Ogden's Appeal, ii. 500, 648. 
Ogle V. Turpin, ii. 154, 257. 
Ogletree v. McQuagg, ii. 367, 368. 
Ohio Life Ins. Co. v. Ledyard, iii. 344. 

I'. Winn, ii. 193, 224. 
Ohling V. Luitjens, ii. 262. 
Okeson v. Patterson, ii. 338, 347 ; iii. 59, 

60. 
Okison V. Patterson, ii. 456, 475, 476 ; 

iii. 303. 
Gland's case, i. 12, 141, 142. 
Olcott V. Thompson, ii. 337, 372. 

V. Wing, i. 701. 
Old Dominion Bank v. Dubuque & Pac, 

R. H. Co., ii. 570. 
Oldenbaugh v. Bradford, ii. 65. 
Oldh.am r. Halley, ii. 63. 

t'. Henderson, i. 340. 

V. Pleger, ii. 108. 



TAULE OP CASES CITED. 



C'V 



Oi.lli.im r Siilc. i. 2r.. 2o7. 
Olils r. C!iiiiitiiiti^8, ii. 7i, 'Jo7. 
Olive r. DniinliLTty, ii. 611. 
Oliver r. I'iiitt, ii. Wti, &•;'.»; iii. 514. 

r. Stone, iii. ;)()f>, :!11. 
Olliffu '•. Wi-llH. ii. 6<X1. r.22, 520. 
OltnxtCMil r. Kldor, ii. 12*2. 

r. Nili"8. i. i;l, 178. 
OIney r. Hull, ii. o'.tH. fJIO. ^15. 
Olson I'. Nelson, i. 8.'>t5, i;]'.) ; ii. fl.j. 
OiidiTilonk r. Gray, ii. 2"il. 
Oiiley r. (Jimliner, ii. ;].!!». :'. 10. 841.343. 
Ontario Hank r. Mnnifonl, ii. i>]2. 
Ontli:ink r. I.nku Shore U. U., ii. 350. 
Opilyke r. Stephens, iii. 428, 453, 465. 
Orliv r. 'rrii;;;. ii. 0(5. 
Onl"/-. MeKce, ii. 127. 
Orilinary r. Tliatclier, iii. 319. 
Oiilw.iy r. Keinini^tiin, i. 4G7. 
Ortbnl r. Benton, i. 183. 
Oriental Mank v. Ilaskins, iii. 3.54. 
Orleans r. Cliatliani, ii. i'l.jl. 5I'J. 
Orleans Xav. Co. r. Mayor. &c., ii. 313. 
Orman c. Day, ii. 384. 

V. Ornian, i. 451. 
Ortnond r. Martin, iii. 147, 174. 
Ornmnd's case, ii. GC7. 
Ornish V r. Ihmsen, iii. 84, 80. 

('. Taraseon, ii. 81. 
Orr, Matter of, i. 381,401. 

V. Hadley. ii. Kj'J; iii. 96, 456. 

r. Hodgson, i. 7'.>. 

r. Hollidays. i. 181. 

V. Quinihy, iii. 225. 

V. Shraft, i. 374. 
Ortnian '•. DLxon, ii. 405. 
Orton r. Knah, ii. 505. 
Osborn v. Carr, ii. 156. 

I'. Osborn, ii. 503. 
Osborne iv Ballew, iii. 160. 

i;. Endicott, iii. 111. 

V. Ilorine, i. 257, 287. 

V. Soley, ii. 400. 

V. Wideniiouse, iii. 10. 
Osbourn i\ Rider, iii. 209. 
Osbrey v. Bury. ii. OfK). 
Osgood r. Abbott, ii. 17, 108. 

V. Franklin, ii. 067, 710, 718. 

V. Howard, i. 5. 

V. Stevens, ii. 249. 

V. Tiionipson Bank. ii. 5.3. 
Oshey v. Hicks, iii. 298. 
Osman v. Sheafe, ii. 443. 
Osmun r. Porter, i. .338. 
Osterhout v. Shoemaker, i. 248; iii. 09. 
Ostrander v. Spickard, i. 336. 
Oswald V. Sproehale, iii. 406. 
Oswego Falls Bridpo r. Fish, ii. 310. 
Otis V. McLellan, ii. 007. 

r. Par-<hlev. i. 204. 

V. Smith, i. 18. 

V. Spencer, iii. 303. 356. 

V. Thompson, i. 005. 

r. Warren, i. 290. 



Ott v. Kreiter, iii. 452. 

V. SpraKue. i. 4.3t». 
( Ittacineclwe Co. r. Newton, ii. 305. 
Ottawa I'lank Uoail r. .Murray, ii. t;7. 
( >ttman r. .Moak. ii. 1221. 
Ottuniwa ("o. f. Hawley. i. 23. 
Ottumwa Kod^c r. Lewis, ii. 300. 
Otway I'. Hudson, i. \i',]i. 
Oursler i^. Haltinioro & O. R. R. Co.. ii. 

394. 
Outcalt V. Ludlow, iii. 158, 174. 
Overdeer r. I.iewi», i. C31, 04.5,050. 

i;. UpdeKrafT, ii. 331. 
Overfleld v. Christie, iii. 156, 159, 4a3. 
(Overman r. Kerr, iii. 209. 

V. Sanborn, i. 530, 610. 
Overman's Appeal, ii. 0. 
Overseers, &c. v. Sears, i. 90. 
Overstreet v. Bate, iii. 174. 
Overton v. Bigelow, ii. 54. 

V. Williston, i. 32. 
Oves V. Ogclsby, i. 27. 
Owen V. Brackett, i. 304. 

V. I)e Beauvoir, ii. .302. 

V. Field, i. 605; ii. 27; iii. 09, 414. 

V. Hyde, i. 130, 140. 

V. Morton, i. OOO; iii. 153, 155. 

V. Peacock, i. 277, 286. 

V. Perry, iii. 250. 

V. Robbins, i. 234, 250. 

V. Slatter, i. 265. 
Owens V. Jackson, iii. 197. 

r. Lewis, i. 12. 

r. Missionary Society, iii. 553. 
Owings V. .Tones, i. 571. 

i: McClain, i. 720. 
Oxiey I'. James, i. 633. 637. 
Oyster i: (Oyster, ii. 0.54. 
Ozmun V. Reynolds, ii. 193. 



Pace V. Chadderdon. ii. 110, 114, 275. 
Pacific Mat. L. Ins. Co. r. Stroup, iii. 

151. 
Packard r. Ames, ii. 5, 670. 

r. Marshall, ii. 530. 
Packer c. Rochester & .Syr. R. R., ii. 
Ill, 114, 181,240; 251. 

V. Welsteil, iii. 411. 
Padclfonl V. Padelford, i. 186, 1.37, 149, 

15<X320. 
Page c. De Puy. i. 058. 

I'. Fsty. i. 400. 

V. Foster, ii. 00, 239. 

f. Fowler, i. 143. 

V. Gillentine, ii. 510, 644. 

r. Hayward, i. 104. 

V. Kinsman, i. 591. 

V. Page, i. 257, 288,340. 

r. Palmer, ii. 8. 

r. Parr, i. 564. 

V. Pierce, Ii. 126, 128, 132. 



CVl 



TABLE OF CASES CITED. 



Page V. Robinson, ii. 105, 140, 254. 

V, Webster, i. 721. 

V. Wight, i. 650. 
Page's case, iii. 53. 
Paige V. Sherman, iii. 399. 
Pain V. Smith, ii. 86. 
Paine v. Boston, ii. 365. 

V. Brockton, ii. 348. 

V. Frencli, ii. 128. 

v. Wilson, ii. 48. 

i>. Woods, i. 4 ; ii.l72; iii. 363,437, 
444, 448. 
Paine's case, i. 175, 272. 
Painter v. Henderson, ii. 571. 
Pakenliam's case, ii. 296. 
Palairet's Appeal, iii. 226. 
Palethorp r. Bergner, i. 509. 
Palmer >: Bowker, i. 593, 594, 614. 

V. Edwards, i. 539, 542, 545. 

V. Fleshees, ii. 382, 383. 

V. Flessier, ii. 329. 

V. Fletcher, ii. 319. 

V. Foote, ii. 171. 

V. Forbes, i. 18; ii. 164. 

V. Fowley, ii. 131, 254, 281. 

V. Hicks, iii. 448. 

V. Mead, ii. 269. 

V. Mulligan, iii. 439. 

V. Oakley, ii. 525. 

?;. Stevens, ii. 148. 

V. Waddell, ii. 372. 

V. Wetmore, i. 562, 

v. Yager, ii. 270. 
Palmer's (Sir Thomas) case, iii. 370. 
Palmes v. Danby, ii. 182. 
Panton v. Holland, ii. 381, 382. 

V. Jones, i. 600, 651. 

V. Manley, i. 432. 
Papendick v. Bridgwater, iii. 457. 
Paradine v. Jane, i. 559, 666. 
Pardee v. Lindley, i. 387, 432, 434 ; ii. 74. 

V. Treat, ii. 219. 
Pargeter v. Harris, i. 693; ii. 177. 
Pargoud v. Tourne, i. 522. 
Parham S. Mach. Co. v. Brock, ii. lOfi. 
Paris V. Hulett, ii. 225, 252. 
Parish v. Gates, ii. 62. 

V. Gilmanton, ii. 172. 

V. Ward, iii. 17. 

V. Whitney, ii. 299; iii. 49.3, 502. 
Park V. Baker, i. 29. 

V. Castle, i. 635, 639. 

V. Pratt, iii. 3.50, 428. 
Parke v. Kilham, i. 699. 

V. Mears, iii. 293. 
Parker v. Anderson, ii. 33. 

V. Banks, ii. 175, 192. 

u. Barker, ii. 136; iii. 83. 

V. Baxter, ii. 172. 

V. Bennett, ii. 320, 330 ; iii. 419, 459. 

V. Birks, ii. 767. 

V. Boston & M. R. R., ii. 377. 

V. Brown, iii. 482, 484, 630. 

V. Chambliss, i. 163. 



Parker v. Clairborne, iii. 206. 

V. Converse, ii. 557, 565, 599. 

V. Coop, ii. 510. 

V. Dean, 1. 407, 439, 453. 

V. Foote, ii. 327, 334, 338, 340, 345, 
362, 365, 366 ; iii. 57. 

V. Foy, ii. 93 ; iii. 343, 399. 

V. Framingham, iii. 450. 

V. Hill, iii. 311. 

V. Hotchkiss, ii. .341. 

V. Johnson, ii. 569. 

V. Kane, iii. .325, 826, 424. 454. 

V. Mercer, ii. 128. 

V. Merrimac Locks, &c. Props., iii. 
121, 155, 351. 

V. Mitchell, ii. 345. 

V. Moore, iii. 419, 488. 

V. Murphy, i. 289. 

V. Nichols, ii. 444, 469 ; iii. 396. 

V. Nightingale, ii. 14, 323, 324,327. 

V. Obear, i. 313. 

V. Parker, i. 295, 298, 316; ii. 8. 20, 
723,745,747,753,754; iii. 161, 
811. 

;;. Raymond, i. 593. 

V. Savage, i. 3-56. 

V. Smith, iii. 108. 

V. Snyder, ii. 512, 516. 

V. Staniland, i. 11 ; iii. 367. 

V. Waliis, iii. 151. 

V. Webb, ii. 293. 
Parkhurst v. Cummings, ii. 194. 

V. Smith, ii. 594, 618. 

V. Van Cortland, ii. 548; iii. 247, 
249. 
Parkins v. Coxe, i. 148, 149. 

V. Dunham, ii. 350, 357, 361, 395, 
396. 
Parkinson v. Sherman, ii. 219. 
Parkman v Welch, ii. 186, 210, 211, 215, 

221. 357. 
Parks V. Bishop, ii. 350. 

V. Boston, i. 558. 

V. Hall, ii. 45. 

V. Hardey, i. 286. 

V. Loomis, iii. 424, 427. 

V. McClellan, i. 316. 

V. Reilly, i. 390, 405. 
Parmelee v. Simpson, iii. 801, 315, 348. 
Parmenter v. Webber, i. 606, 641, 543, 

546. 
Parmentier v. Gillespie, ii. 162. 
Parret v. Shaubliut, ii. 66, 150. 
Parry v. Bowcn, ii. 725. 
Parsons '•. Boyd, i. 678, 681. 

V. Camp, i. 20, 671. 

V. Copeland, i. 22. 

)', Hughes, ii. 141. 

V. Johnson, ii. 330, .331. 

V. Livingston, i. .360. 

V. Smith, iii. 366. 

V. Welles, ii. 100, 104, 120, 125, 133, 
178. 

V. Winslow, i. 129 ; ii. 10 ; iii. 678. 



TAIJLE OF CASES riTKH, 



evil 



Parfcli c. Spooner, iii. 111. 
I'arti-e r. SicMvart, i. .'JTtJ. 
I'tirtin^toii f. Woodwork, ii 1 11. 
l'!irtriil(.;c r. Here, ii. 17<i. 
t'. I'olc'^fiiif, I. l)^0. 

r. Dor.xov. i. 11-J, 113. IIG. 

I'. Hiitcli. iii. 18-', -181,627. 

V. Logan, ii. tKi. 

i*. Mckinnev, iii. S.'IO. 

V. Scott, ii.":{.{H. 3H1, 382. 
I'nsco i". Giimble, li. 110. 
I'lissumpsic Hiiiik r. Weeks, ii. 188, 227. 
rutcliin r. Diokernmu, i. 684. 
IVitrick I'. Keinln-rt, i. 122. 
I'atien f. Deslion, i. 626,526,527,529, 
641, 616. 660, 6.)2, 6y4 ; ii. 2'J8. 

I'. Moore, iii. 8:i7. 

V. Pearson, ii. 77, 19, 120, 252. 
Patterson r. Arthurs, iii. 40.3. 

t: Blake, i. 704. 

I'. I5(jstoM, i. 668. 

r. I)e lii Roiule, iii. 335. 

V. Ksterliiif,', iii. 85. 

V. Gelston, iii. 00. 

r. Kevstoiie Min. Co., ii. 400. 

V. Kreiif, i. 432, 4.34. 

V. Lawrence, iii. 78, 125. 

I". Nixon, iii. 340. 

V. Pease, iii. 110, 120, 122, 127,291. 

r. Uohinsoii, i. .351. 

V. Wilson, ii. 714. 

V. Winn, i. 40. 

r. Yeaton, ii. 05 ; iii. .325, 320. 
Patti3)n c. Hull, ii. 120, 128. 
Patiison's Ap[)eal, i. 11, 12; iii. 367. 
Patton c. Axley, i. 0:W. 

V. F-beriiart, ii. 112. 

V. Moure, i. 30. 

V. Paua-, ii. 207. 

V. Siewart, ii. 01, 93. 

V. Watjner, i. 712. 
Patty c. Pease, ii. 215, 221. 
Paul r. Carver, iii. 460. 

I'. Clioiiteaii, ii. 615. 

V. Fulton, ii. .626. 

r. Nurse, i. 525. 
Paulk r. Cooke, iii. 350. 
Paulnian r. Clayconib, iii. 262. 
Pawlet r. Clark, i. 40. 
Pa.xson V. Lefferts. ii. 656. 

i: Paul, ii. 133, 134. 
Paxton 1-. Harrier, ii. 211, 221. 
Pay's case, ii. 761. 
Payne r. Attlehury, ii. 98. 

u. Avery, ii. 01. 

('. Burnhani, ii. 183. 

V. liarrell, ii. '.'4. 98, 268. 

V. Payne, i. 170; iii. 222. 

r. Rogers, i 670. 

V. Sliedilon, ii. 369. 

c. Wilson, ii. 66, 86. 
Peabody »•. Eastern Methodist See, ii. 
6.66. 

r. Harvard College, ii. 606. 



IVabodv V. Ilewctt, iii. 140, 279. 

i: .Sliiiot. i. OSti. 08H. OMV». 713. 

V. Tarltell, ii. 460, 61^. 641. 
Peabody, &c. Co. v. .Sudtler, iii. 440 
IVake V. 'riioniax, i. 43H. 
Pearce r. Ferris, i. 064. 

r. McClenaglum, ii. 309. 

V. Nix, i. 600. 

V. Savage, i. 705; ii. 183, 179, 6.39, 
604, 000. 

V. Wilson, ii. 46. 
Pearl v. McDowell, iii. 262. 
Pearson v. Seav, ii. 00. 

r. Spencer" ii. 3.31, 332. 
Pease r. Allis, iii. 640. 

r. Kelly, ii 91. 
Peaslee i'. Gee, iii. 428, 454. 
Peavev c Tilton, iii. 301, 309. 
Peay (•. Peay, i. 208. 
Peck f. Batchelder, i. 26. 

r. Cari)enter, i. 005. 

V. Dennison, iii. 449. 

r. Fislier, i 700. 

V. Harrington, ii. 372. 

r. Ilensley, iii. 401, 607, 511, 622. 

r. Ingersol, i. 547. 

f. Jones, i. 668 ; iii. .607. 

V. .Mallanis, iii. .'WO, 428. 

I'. Nortlirof), i. 549. 

1'. .Smith, iii. 414. 

r. Ward, i 000. 
Peck's Ap[)eal, ii. 272. 
Pederick r. Searle, iii. 177. 
Peebles r. Heading, ii. 617, 520. 
Peele i: Ciieever, iii. 157. 
Peet c. Beers, ii. 00. 
Pegues f. I'egues, ii. 614. 
Peiffer r. Lvtle, ii. 50tt, 610. 
Pelan v. De Bevard, i. 381. 
Pelham's case, ii. 433. 
Pell -•. McElroy, ii. 02. 
Pellatt r. Boosey. i. 509. 
Pellotreau f. Jackson, ii. 763. 
Pells r. Brown, ii. o'.il, 730, 766. 
Polton r. Farmin, ii •J70. 
Peinberton c I'onilierton, i. 334. 
Pembroke r. Alleiistown, ii. 507. 
Pence i: Armstrong, ii. 224 ; iii. 406. 
Pendergast v. Young, i. 476. 606. 
Pendleton v. Pomeroy. i. 229, 282. 

c. Vandeviir, i 126. 
Penhev >: Hurreil, ii. 6.37. 6.38. 
I'enhallow ,■. Dwight, i. 11. 12, 139. 
Penn r. Railway Co.. ii. 18*3. 
IVnn Mut. J.,. Ins. Co. v. Semple, i. 10 
Pennant's case, i. 616, 510. 
Peruie r. Peacock, ii. 090. 
Pennel f. Weyant. iii. 310. 
Pennimnn r. Cole, iii. 36;J, 368. 

V. Mollis, ii. 131, 266. 
Pennington r. Brinsop Co., ii. 367. 
Pennock r Lyons, i. 508. 
Pennock'* Kttate. ii. 650. 
Penns r. Klyne, iii. 201. 



CVUl 



TABLE OP CASES CITED. 



Pennsylvania Ins., &.c. Co. v. Dovy, iii. 

3U2, 313. 
Penruddock's case, ii. 394. 
Pensoneau v. Puliani, ii. "252. 
Penton v. Kobart, i. 13, 31, 32, 139. 
Pentz V. Sinionson, iii. 275. 
People V. Bostwick, iii. 301, 322. 

v. Brooklyn, iii. 224, 284. 

V. Brown, iii. 77. 

V. Canal Appraisers, iii. 435, 439, 
442, 443. 

V. Clarke, iii. 171. 

V. Commrs. of Taxes, i. 18. 

r. Couklin, iii. 55. 

V. Cutting, iii. 63. 

V. Darling, i. 634. 

V. Dudley, i. 513. 

V. Field, 1. 660. 

V. Folsom, iii. 53, 54, 200. 

V. Gillis, i. 481. 

i;. Goelet, i. 465, 635. 

V. Haskins, ii. 288. 

V. Henderson, iii. 439. 

V. Humphry, iii. 225. 

V. Kelsej', i. 482. 

V. Law, iii. 329, 452. 

V. Livingston, iii. 197, 206. 

V. McClay, i. 363, 376. 

V. Morrill, iii. 200. 

V. New York, iii. 352. 

V. Norton, ii. 557. 

V. Organ, iii. 254. 

V. Piatt, iii. 436, 4-39. 

V. Rickert, i. 632, 646. 

V. Salem, i 70. 

V. Schakno, i. 635. 

V. Snyder, iii. 298, 346. 

V. Solomon, i. 70. 

V. Stiner, i. 590. 

V. Stitt, 1. 4.30, 447. 

V. Sturtevant, ii. 308. 

V. Supreme Court, ii. 67. 

V. Utica Ins. Co., ii. 305. 

V. Van Rensselaer, iii. 171, 200, 201, 
203. 
People's Ice Co. v. Stmr. Excelsior, i. 4. 
Pepper's Appeal, ii. 103. 
Peralta i-. Ginochio, i. 600. 
Perdue v. Aldridge, iii. 342. 
Perkins v. Dibble, ii. 68, 134. 

V. Nichols, ii. 611, 517, 618. 

V. Pitts, ii. 176. 

V. Richardson, iii. 275. 

V. Sterne, ii. 102, 110, 123, 127, 192. 

V. Swank, i. 6. 

V, Webster, iii. 525. 

V. Woods, ii. 268. 
Perley r. Hilton, ii. 369. 

V. Langley, ii. 392. 
Perminter v. McDaniel, iii. 252. 
Pernam v. Wead, ii. 320. 
Perrin v. Blake, ii. 652. 

V. Calhoun, i. 597. 

V. Lepper, i. 539, 548. 



Perrin v. N. Y. Cent. R. R., iii. 451. 

V. Sargent, i. 412, 413. 
Perrine v. Perrine, iii. 201. 
Perry v. Aldrich, i. 133, 134, 656. 
V. Binnej', iii. 458. 
V. Carr, i. 20, 610, 639; ii. 188. 
V. Davis, i. 616. \ 

V. Goodwin, i. 294. 
V. Grant, ii. 90. 
V. Hale, iii. 580. 

i: Kline, i. 107, 112, 116; iii. 119. 
I'. McHenry, ii. 513, 514. 
V. Meddowcroft, ii. 62. 
V. Perrvman, i. 333. 
V. Price, iii. 391, 894. 
V. Walker, i. 699. 
V. Woods, ii. 779. 
Perryman's case, iii. 324. 
Person v. Merrick, ii. 264, 265. 
Persons v. Persons, ii. 608. 

V. Shaeffer, ii. 199. 
Peter v. Beverly, ii. 84, 653, 554, 566, 
567, 704, 716, 718. 
i\ Daniel, ii. 374. 
V. Kendal, ii. 305, 307. 
V. Wright, iii. 322. 
Peters r. Dunnells, ii. 192. 
V. Elkins, ii. 143. 
V. Field, iii. 287. 
i\ Jamestown Bridge, ii. 123. 
V. Jones, ii. 635 ; iii. 153, 178, 248. 
Peterson v. Clark, ii. 47, 62, 142. 
V. Edmonson, i. 562, 566. 
V. Hornblower, i. 430. 
V. Lowry, iii. 334. 
Peterson's Appeal, ii. 541, 598, 628. 
Petre v. Espinasse, ii. 492. 
Pettee v. Case, ii. 70, 253 ; iii. 109. 

V. Hawes, ii. 317 ; iii. 462, 465, 471. 
r. Peppard, ii. 196. 
Pettengill v. Evans, ii. 107, 140, 163 
Pettibone i-. Edwards, ii. 267. 
V. Rose, iii. 455. 
V. Stevens, ii. 231. 
Pettigrew v- Siiirlej", iii. 211. 
Pettijohn v. Beasley, i. 337. 
Pettingill v. Devin, iii. 345. 

V. Porter, ii. 320, 387 ; iii. 453. 
Pettit V. Johnson, ii. 84, 145. 
Pettus V. McKinney, i. 366, 467. 
Petty V. Mailer, i. 181. 

V. Petty, i. 227. 
Peugh V. Davis, ii. 54. 
Pewterers' Co. v. Christ Hosp., ii. 760. 
Peyton v. Lambert, ii. 768. 
V. London, ii. 385. 
v. Stith, i. 598. 
Pfaffi'. Golden, i. 525. 551. 
Phalen, Estate of, i. 456. 
V. Clark, ii. 534, 536. 
Phares v. Barbour, ii. 224, 570. 
Pharis v. Leachman, i. 282. 
Phelan v. Olney, ii. 126, 127, 128. 
Phelps V. Blount, iii. 130. 



TAl;l.i: OF CASES CITED. 



CIX 



Plu'Ips r. BiitliT, ii. iHt,. 

c. ("Ikmsuii, ii. l;>, IH. 

I'. CoiiuvLT, i 117 ; ii. 'Jo. 

r. Je|i8(>n, i. 077. 

r. Ki-llo^'^r, iii. 213. 

V. Now It'll, ii. •'{76. 

i;. I'liolpH, ii. 68o; iii. 31U. 

1-. Uooiu-y, i. :JmI. 

I'. Siniv, ii. lOlt. 
IMieiuf I'. I'oppiowi'll, i. 58;}. 
I'lii'vsey r. Viniry, ii. ;J22. 
riiihli'lpliiii r. (iiriird, u. 76U, TOO, 701, 

7'.il ; iii. •')•')•'), '>')"!. 
riiilaiii-lpliiii TriHt. Safe Dep., &c. Co.'s 

A|ipi-al, ii. Wi , -ill, 5lH). 
riiila>Klpliia. W., & H. U. U. Co. v. 
Ildwanl, iii. ;]11. 

I'. WooipiT, i. o7; ii. 43. 104, 174. 
Philliriclv V. Kwinjf, iii. 41!». 
I'liiilirook c. Delano, ii. \H). 511, 5r.>; 

iii 401. 
Pliilips I'. Cramniond, ii. 524. 

V. Dasliiel, iii. IS. 

L'. Lfwistoii Bank. ii. 103, 118, 121, 
154 

I'. Uol)ertson, i. 501. 
Philico r. Smuilev. i. 370. 
riiiilips r. Allen,'!. 130, 1(51. 

i: Bowers, iii. 440, 4.j0, 451. 

V. Covert, i. 010, (J30. 

V. Croft, ii. 52. 

V. Doe, i. 513. 

I'. Doolittle, ii. 23. 

V. (ireen, iii 2(54. 

V. Iliiuston, iii. 308. 

V. llmison, iii. 518. 

i;. Kent, iii. 177. 

V. Lewision Bank. ii. 127. 

r. Pliillip.s, ii. 331, 508. 

I'. UhoileM, iii. 01. 

V. Hobert.soii, i. 501. 

V. Kothwell, i. 5!t2. 

I'. Sauinlerson, ii. 06. 

V. Sliernian, i. Oi)0. 

r. Sinitli, i. 148, 152, 153. 

V. Sprin-fiel.l, i 432, 448. 658. 

I'. Stevens, i. 537, 506. 

V. Sun Dye (^o , i. 538. 

I'. Thompson, ii. 225 ; iii. 247, 249. 

V. Tmlor, i. 087. 088 ; iii. 277. 

V. Wiii.slow, i. 18 ; ii. 104. 
Phillips Aca'leiny r. Kinji, ii. 604. 
Phinney r. ^Vatt!<, iii. 44;5. 
Pllipard r. Mansfield, ji. (i05. 
Pliipps r. Seultliorpe. i. 502. 023. 

r. State, iii. 203. 
Phoenix Ins. Co. i;. Cont. Ins. Co., ii. 

317. 327. 
Phyfer. Rilev. ii. 114. 
Piatt V. Iluhhel. i. 720. 

V. Oliver, i. 701 ; ii. 524. 

V. Sinton. ii. 703. 

V. St. Clair, iii. 241. 
Pibus V. Mitford. ii. 455, 457, 649. 



Picknrd i'. Collins, i. 571. 

r. Perley. i. •■,2*.t. 03U. 

r. Seur«, iii. h2. 85. 
Pickering; r. lMl^^•l\^m. ii. 783. 

V. Pickeriiij;. iii. 580. 

f. Stapler, iii. 411,414. 
Pieket v. Dowdall, iii. OH. 
I'iekelt i: Barron, ii. 119, 151, 201. 

('. .loneH. ii. 123. 

«■. Peuy. i. 3.30. 
Piekniiui c. Trinity Church, iii. 520. 
Pieo V. Colonibet, i. 095. 
Picot I'. Page, i. 079. 721. 
Pier c. Carr, i. 559. 600, 683. 

r. DuIT, iii. 457. 
Pierce v. Arin»trong. ii. 479 ; iii. 404, 
475. 

V. Brew, iii. 399. 

V. Brown, i. 590. 

r. Ciiase, i. 707. 

V. Dyer, i. 577 ; ii. ;}89. 

V. Kinery, ii. 103. 

V. Faimee, ii. 258. 

r. Georj^e, i. 10, 26, 20, 27. 

V. Goddard. i. 10. 

v. Hall, iii. 329. 

V. Pierce, ii. 514. • 

r. Kobinson, ii. 5.3. 

V. Selleck, ii. 320. 338. 

v. TriKi,'. i. 210, 702. 

V. Wanett, i. 182. 

V. Williams, i. 28.3. 205 
Pierre i: Fernald, ii. 3:]7. 341. .340, 302. 

305. 
Pierson »•. Armstrong, iii. 287, 391, 402. 

I'. Turner, iii. 170. 
Pifer r. Ward, i. 217. 
PiUKot I'- Mason, i. 531. 
Pijllfott V. Stratton. i. 580. 
Pilot's aise. iii. 2'.tH. 
Pike r. Brown, i. 518. 

«•. Dyke. iii. 217. 

V. Galvin, iii. ll-'., 121. 

V. Goodnow, ii. 117, 130, 133, 215, 
250. 

V. Witt. i. 054. 
Pillow r. Roberts, iii. 108, 238, 290. 
Pillsbiiry I-. Moore, i. 0'.t4. 
Pinbnry v. I'Ikiii. ii. 7i'>7. 
Pincli r. AnllKMiy, ii 4 I. 
Pinchain >■. Cidlard, ii. 05. 
I'inekney v. Bnrra^e. iii. 159. 
Pindar r. Aiiitiley. i. 585. 
Pine r. I.,eieeHler. i. 5.35, 5.52. 
Pinero v. ,Iu<lson. i 481, 025. 
Pinjrrey v. Watkins, i. 542, 663. 
Pinhorn v. Souster. i. 019. 
Pinkerton r. Sarp-nt. i. .'W4 ; ii. 294. 

V. Tunilin. i. ;}85. 
Pink ham c. Gear, i 283. 
Pinnin(;ton v. (ialland. ii. 320, 333. 
Pinson >• Ivey. ii. 521. 503. 

r. Williams, i. 202. 
Pintard t;. Guodlue, ii. 01, 92. 



ex 



TABLE OF CASES CITED. 



Piper V. Johnston, i. 422, 439. 
V. Moulton, ii. 564. 
V. Smith, i. 704. 
Piplier v. Lodge, iii. 163, 170. 
Piscatiiqiia Bridge Co. v. N. H. Bridge 

Co., ii. 310. 
Pitciier V. Tovey, i. 526; ii. 294. 
Pitman v. Poor, i. 668. 
Pitt V. Petway, ii. 570. 
Pitts V. Aldrich, i. 262 ; ii. 266. 

V. Pitts, i. 254. 
Pittsburg Meth. Ch. v. Remington, iii. 

557. 
Pixley V. Bennett, i. 258. 
Pizzala v. Campbell, i. 366, 399. 
Place V. Fagg, ii. 163. 
Plant V. James, iii. 411, 419. 
Planters' Bank v. Davis, i. 183, 184. 
V. Dundas, ii. 212, 215. 
V. Johnson, iii. 222. 
Plate r. Koehler, i. 892. 
Piatt V. Johnson, ii. 372. 
V. McClure, ii. 66, 72. 
V. Sleap, i. 587. 
Platto V. Cady, i. 445. 
Playter v. Cunningliani, i. 519, 521. 
Pleasant r. Benson, i. 637, 642. 
Pleasanton >•. Eaughley, iii. 248. 
Pleasanton's Appeal, ii. 574. 
Pledger v. Ellerbe, i. 248. 
Plenty v. West, ii. 498. 
PHmpton I'. Converse, iii. 119. 
Plowman v. Williams, iii. 492. 
Pluck V. Digges, i. 543. 
Plumb V. Cattaraugus Ins Co., iii. 91. 

V. Tubbs, ii. 10. 
Plumer v. Lord, iii. 91. 

V. Plumer, i. 592, 610. 
Plumleigh ?;. Cook, i. 527. 
Plummer v. Russell, iii. 285, 297. 

V. White, i. 433. 
Plunket V. Holmes, i. 186, 206. 

V. Penson, ii. 171. 
Plymouth v. Carver, ii. 295 ; iii. 493. 
Plvmpton ?'. Boston Dispensary, i. 130. 
Poage V. Chinn, i. 689. 
Poe r. Hardie, i. 410. 
Poignard v. Smith, ii. 175 ; iii. 160, 162, 

163. 
Poindexter i'. Henderson, i. 167. 

1}. McCnnnon, ii 62. 
Polack V. Pioche, i. 566. 
Poland V. Vesper, i' 408. 
Polden V. Bastard, ii. 3.30 ; iii. 421. 
Police Jury v. Reeves, ii. 7. 
Pollard V. Barnes, ii. 344. 
V. D wight, iii. 487, 489. 
V. Hagan, iii. 200, 203, 446. 
V. Maddox, iii. 408. 
V. Pollard, i. 3-34. 
V. Shaffer, i. 156, 531. 
V. Somerset Ins. Co., ii. 173. 
Pollen V. Brewer, i. 055. 
Pollock V. Kittrell, i. 613. 



Pollock V. Maison, ii. 108, 193. 
V. Morris, iii. 449. 

V. Stacey, i. 541, 543. 
Polyblank r. Hawkins, i. 341. 
Pomeroy v. Bailey, iii. 356 

V. Buntings, i. 384. 

V. Pomeroy, i. 227. 

V. Winship, ii. 271. 
Pomfret v. Ricroft, ii. 315, 320, 355^ 
388; iii. 411, 518. 

V. Windsor, i. 624. 
Pomroy i\ Rice, ii. 194. 

V. Stevens, iii. 337. 
Pond V. Bergli, ii. 777. 

V. Clarke, ii. 195. 

V. Johnson, i. 288. 

V. Pond, i. 719. 
Ponder v. Graham, i. 201. 
Fool V. Alger, ii. 391. 

V. Blaikie, i. 173. 

V. Marshall, ii. 210. 
Poole V. Bentlev, i. 481. 

V. Gerrard,'i. 400, 429. 

V. Longueville, i. 341. 

V. Morris, i. 114. 

V. Poole, ii. 653. 

V. Whitt, i. 595, 597. 
Poole's case, i. 31. 
Poor V. Oakman, i. 6; iii. 366, 369. 

V. Robinson, iii 105. 
Pope v. Biggs, i. 557 ; ii. 142, 144. 

V. Burrage, ii. 76. 

V. Devereux, ii. 357, 358, 359 ; ilL 
69. 

V. Elliott, ii. 533. 

1-. Garrard, i. 568. 

V. Harkins, i. 585, 596. 

V. Hays, ii. 271. 

V. Henry, iii. 174. 

V. Meed, i. 313. 

V. O'Hara, ii. 357 ; iii. 419. 

V. Onslow, ii. 187. 
Popkin V. Bumstead, i. 242. 
Popplewell V. Hodkins, ii. 371. 
Port V. Jackson, i. 535. 

V. Bobbins, ii. 194, 225. 
Porter, Goods of, iii. 563. 

V. Bleiler, i. 551. 

V. Bradley, ii. 767. 

t'. Buckingham, iii. 311. 

V. Chapman, i. 446. 

V. Chandler, i. 604. 

r. Clements, ii. 52, 261. 

V. Doby, ii. 528. 

V. Dubuque, ii. 94. 

V. Fox, ii 761. 

V. Green, ii. 112, 139. 

V. Hill, i. 719; iii. 121, 277, 530. 

V. Hubbard, i. 651, 652 ; ii. 107, 
141. 

V. King, ii. 170. 

V. Mayfield, i. 519. 

V. Merrill, i. 480, 503. 

V. MuUer, ii. 263. 



TABLE OF CASES CITED. 



cxl 



Porter v. rerkins, i. 710. 

V. I'illslmrv, ii. '2>C 

V. Kiitliiixt liiink, i. -Ml; ii. GCl. 

r. Sfiibor, ii. IHC. -jrj. 

V. Swetnam, i. .JJ7 ; ii. 2"J3. 

r. 'IViite. i. -llf,. 
Porti-r's la.Hi-. ii 7l;i. 
I'orlinjjtitn's ciisio, ii 25, 20. 
I'ortis /'. I'lirkiT, i. 17'J. 
I'ortmore »•. Hiiiin, i. &'J''! 
ToBey i: Hudtl, i. 117; ii. 7lJ5; iii. l^, 
f>7H. 

r. Cook, ii. 4!»8. 
Post I'. Ariiof, ii. I HO. 

t'. Cainpiiii, iii. 511. 

c. Kearney, i. iVJI, 543. 

V. Vetter. i. .');;7, iVil). 
PostL-n V I'ostfii, iii. '-V)!. 
I'otli '-. Anstatt, iii. :'>iil. 
Potier r. Harclay, i. 287. 
Potomac Stoamboat Co. v. Up|)er St. 

Co.. iii. 415. 
Potier r. Croiiiwfil, i. 2.S. 

c. Kveritt, i. ;n4. :i'M 

V. Ganlner. ii. rj7'i. 

r. McDowoll, ii. 127. 

V. Potter, iii. 514. 

V. Tlioriitoii, iii. 553. 

I'. 'litcoMih, iii. 17. 

r. WlK'oier, i. 208. 711. 
Potts r. ('ok-nian, iii. 154. 

V. Dowdall, iii. 50S. 

V. Gilbert, iii. 141, 204. 
Powell c. IJa';t,'. ii. 342. 

r. Hrandon, ii. 055. 057, 789, 798. 

I', ('lark, iii. 427, 625. 

«;. Glenn, ii. 780. 

r. Gossom, i. 182. 18.3. 

V. MoM.M)n, &c. .Mftr. Co., i 27,21.3, 
25f,, 257, 2U8, 2'.>9, .300, 301, 310 ; 
iii. 4'Jl. 

r. Powell, i. 313, .'.14. 

V. Kicli,iii. 307, 410. 

i;. SiuiiU!!, ii. 3ti4. 

f. Smith, ii. 193, 200. 

V. Williams, ii. 100, 170,235. 
Power V. Shiel, i. ;'».'!1, .■J.52. 
Powers r. lk•r^ten, iii. 224, 227, 229. 

V. Clarkson, iii. 3i')H. 

V. Dennison, iii. 4K0. 

V. McFerran, iii. 345. 

V. Patten, iii. ijOl, 502, 508. 

V. Uussell, iii. 311. 
Powesliiek r. Dennison, ii. 81. 
Powles f. Grillith, ii. 214. 
Poyas r. Wilkins, iii. 352. 
Pratt, AV, i. .'Jh-i. 

r. Aver. ii. 548. .5.50. 

r. Haeon, iii. 278. 

r. HenninKton Hank, ii. 205. 

V. Brown, iii. 19'J. 

V. Clark, ii. 91. 

V. Douglas, i. .'W5 ; iii. 17. 

V. Farrar, i. 017, 018, 020, 6G0. 



Pratt .-. Felton, I. .337. 
V. (iodwin, ii. 1 12. 
V. IluKginit, ii. IKl, 105. 
V. I<«.'van, i. 555. 

e. Myerit, iii. ;{.'i7. 

V. <>K.len. i. r,02, mti, CG4. 

!•. I'ratt. iii. 517. 

r. .Skolfleld, ii. 133, 179. 

I'. Sweetser, ii. 390. 

r. Thornton, ii. 570. 

V. Vanwyek. ii. 5^1. 
Pray r. (ireat Falls .Mj;. Co., iii. 410. 

v. Pierce, ii. 444, 409 ; iii. 151, 3t4. 

v. StebbiiiH, i. 709. 
Preachers' Aitl Soc. v. Kngland, ii. 479. 
Preiss r. Campbell, i. ;i55. 
Prent r. Hunt, i. 652. 
Prentice v. Urimhall, ii. 219. 

V. (Jeijjer, ii. H07. 

V. Wilson, i. 022. 
Pre.sbrev v. Presbrey, i. 629, 090; iii. 

422, 424. 
Pre.-ibvterian Con^?. i*. Johnston, ii. 

57.3' 
I'robylerian Corp. r. Wallace, ii. 215. 
I'rescid)aker r. Feamaii, ii. 5.J, 05. 
Prescott c. Kllinixwood, ii. 120. 

V. KUu, i. 010, 011,043. 

V. Hawkins, iii. 406. 

V. Kyle, i. 645. 

V. Nevers, iii. 137, 155, 1G7. 

V. Phillips, ii. 357. 

V. Prescott, i. 308 ; iii. 660, 601. 

V. Tnieman, iii. 478, 4«2, 487, 490, 
491. 629. 

V. Walker, i. 213. 

V. White, ii. .373. .374; iii. 412. 

f. Williams, ii. 373; iii. 4'.tl. 
Presley c Striblinn, ii. 5(>8, 572. 
Preston v. \ir'\)i\i», i. 32, 407 ; ii. 1G3. 

V. Casner. ii. 544, 548. 

r. F'linnell, ii. 77.5. 

V. Hodneii, ii. 129. 

V. Hull. iii. 254. 

I'. Kobinson. i. G87. 
Pretty r. Mickmore, i. 672. 
Prettyman r. Walston, i. 1.32, 524. 

r. Wilkey, iii. 524. 
Prevost r. (iralz, ii. 624. 
I'revot r. Lawrence, i. 487, 692, GOO. 
I'rewitt r. Wilson, iii. 856. 
Price r. Hraytiii), i. 14. 

I", ("titts, ii. M. 

V. Deal. iii. 627. 630. 

V Hiiey, iii. 223. 

c. Hunt, ii. 7(>0. 

I-. .Inhnston, iii. 212. 

V. Karnes, ii. 53. 

V. Pickett, i. 1.33. 140. 

I'. Pittsburgh & F't. W. & C. U K . 
iii. 320. .322. 324. 

V. Price, i. 20, 218. 

r. Sisson, ii. 477, 498, 630, 6^^. 5'.»<5, 
066. 



CXll 



TABLE OF CASES CITED. 



Price V. State Bank, ii. 273. 

V. Taylor, i. 118; ii. 654, 655. 

t". Worwoud, i. 514. 
Prichard i-. Atkinson, iii. 493. 
Pricket t v. Parlier, iii. 19. 

V. Hitter, i. 631. 
Pricknian v. Tripp, ii. 376. 
Pride v. Lunt, iii. 454. 
Priest V. Cunnuings, i. 257. 

V. Nichols, i. 577. 
Primm r. Walker, i. 688 ; iii. 64, 443. 
Prince v. Case, i. 664, 665, 666, 673. 
Prlndle v. Anderson, i. 631, 632, 638, 

639. 
Pringle v. Gaw, i. 315. 

V. Witten, iii. 488. 
Prior & Convent case, ii. 296. 
Pritchard r. Brown, ii. 42U, 474, 518. 
Pritts r. Kitcliie, i. 2.34. 
Private Hoad, case of, ii. 312, 322 ; iii. 

420. 
Probert v. Morgan, ii. 721. 
Proctor i\ Bigelow, i. 277. 

V. Bp. of Bath, ii. 778. 

V, Gilson, i. 21. 

V. Green, ii. 236. 

V. Hodgson, ii. 349. 

V. Keith, i. 510. 

V. Putnam Mach. Co., iii., 97. 
Prodgers v. Langliam, iii. 355. 
Proffitt V. Henderson, i. 147, 148, 152. 
Proprietors, &c. Liverpool Wharf. See 

Liverpool Wharf, &c. 
Prosser r. Parks, ii. 407. 

V. Wapello County, iii. 445. 
Providence Bank v. Billings, ii. 805; 

iii. 234. 
Providence Steam-Engine Co. v. Provi- 
dence Steamboat Co., iii. 445. 
Provost r. Calder, i. 494. 
Prutsman v. Baker, iii. 306, 307. 
Pryor v. Baker, ii. 71. 

V. Coulter, iii. 294. 

V. Stone, i. 379, 455. 

V. Wood, i. 171. 
Pryse v. McGuire, iii. 511. 
Puckett V. State, iii. 53, 54. 
Pue 1-. Pue, ii. 339, -357 ; iii. 58. 
Pugli V. Arton, i. 3.3. 

V. Bell, i. 234. 

V. Holt, ii. 58. 

V. Leeds, i. 467. 

V. Pugh, ii. 524. 
Pullen V. Bell, i. 6. 

V. Rianhard, ii. 498, 499. 
Pultney M. E. Church v. Stewart, ii. 

565. 
PHnderson v. Brown, ii. 169, 171. 
Purcell r. English, i 577. 

V. Gosliorn, iii. 272. 

r. Wilson, i. 683. 
Purdy V. Havt, ii. 607, 684. 
V. Huntington, ii. 118, 123. 
V. Purdy, i. 677 ; ii. 514. 



Purefoy r. Rogers, i. 205 ; ii. 636, 638, 
700, 737, 740, 745, 748, 749, 754, 757, 
761, 766, 767, 776; iii. 104. 
Purington r. No. 111. R. R., iii. 435. 
Purner v. Piercy, iii. 365. 
Purrington v. Pierce, ii. 64. 
Purser v. Anderson, ii. 198. 
Purvis V. Wilson, i. 717. 
Putnam v. Bond, iii. 429. 

V. Collaniore, i. 239 ; ii. 202. 

V. Dobbins, ii. 93. 

V. Putnam, i. 222, 223 ; ii. 182. 

V. Story, ii. 540, 611, 612, 617, 640, 
718. 

V. Tuttle, iii. 473. 

V. Wise, i. 479, 604, 605, 606. 
Putnam Free School v. Fisher, ii. 552 ; 

iii. 143. 
Putney i\ Day, iii. 369. 

V. Dresser, i. 677. 
Pybus V. Mitford, ii. 649. 
Pye V. Gorge, ii. 558. 
Pyer v. Carter, ii. 319, 328, 332, 333. 
Pylant v. Reeves, ii. 91. 
Pynchon v. Lester, i. 245. 308. 

V. Stearns, i. 137, 147. 
Pyne o. Dor, i. 161. 



Q. 



Quackenboss v. Clarke, i. 525, 534, 535, 

541, 554. 
Quain's Appeal, ii. 295. 
Queen v. Northumberland, iii. 417. 
Queen Ann's Countj'^, Trustees of Poor 

of, V. Pratt, i. 217. 
Quillman r. Custer, ii. 655. 
Quin V. Brittain, ii. 238. 
Quinby r. Higgins, iii 15. 

V. Manhattan Co., i. 22, 26. 
Quinebaug Bank v. French, ii. 122. 
Quinn v. Eggleston, iii. 454. 
Quint v. Little, ii. 100. 
Quirk V. Thomas, iii. 338. 



R. 



Rabe v. F^'ler, i. 681. 
Rabsuhl v. Lack, iii. 399. 
Race V. Ward, ii. 313, 392. 
Rackley v. Sprague, iii. 412. 
Radcliff V. Mayor, &c., ii. 377, 381. 

V. Radford, ii. 510. 
Rader v. Ervin, ii. 102, 110, 111. 
Ragland v. Justices, &c., ii. 101, 110. 

V. Rogers, i. 378. 
Raguet V. Roll, ii. 256. 
Rahway Sav. Inst. v. Bapt. Church, i. 

30. 
Rail v. Dotson, ii. 784. 
Railroad v. Carr, ii. 367. 

V. Scliurmeir, iii. 443. 



TAllLE OF CASPS riTKD, 



cxm 



Ra'np* (• Corl>in. i. .1^4. 

f. WiiikcT, lii. L'l»->, ;}03. 
Kaiiis r. Mann, ii. I'iO. 
Uiiki'Htraw r. Mnwfr, ii. 1"J5. 
Uiili-y r. lvo.H!i, i. ;]t)'». 
RhUh r. IIii>,'l,tM, i. -.'77. 
Kiiiston I'. Hiiotly, i. 4!»9. 

r. llntfliL'i*. ii. 17"2. 

V. Ualst.n. i. 220. 
liiiins^ay r. Miirsli, ii. 4'J7. 
Unnisilell r. Kniery, ii. 5l'J. 

r. Uamsdi'll, ii. 783 ; iii. 5t')5. 
K iins lill r. Wontvvortli, iii. 577. 
Uaiiisev I'. Merriam, ii. 77. 

V. ■\Van(k'll, ii. 708. 
Rami I'. Cartwrijjlit. ii 181. 
Ratiilull o. Chase, iii. :}oO. 

V. Oleavuliin.l. i. IMi. 

r. Elwfll, i. IS; ii. lot. 

V. Kreiis'er, i. li).i, 201. 

V. I..(»wer. iii. 117. 

V. Mirl.lo, ii. 10. 11. 

f. McLau^iilin. ii. ;]-)3. 

V. I'liillips, ii. ll'.i. 321. 

r. Raniiall, iii. 400. 

V. Rich, i. 582 

V. Russell, ii. 788. 

r. San ilersi>n, ii. 3t)4 ; iii. 109. 
Ranl.-il c. Mallett, ii. 212. 
Ran lulpii r. Doss, i. 210. 

f. Wenilell, ii. 703. 
Rands r. Kendall, i. 2:35; ii. 106. 
Raiiifelcy '•• Spring, iii. 82, 108. 
Itiink V. Hanna, i. 255. 
Rankin i-. Harper, ii. 508, 509, 515 

I'. Iluskisson, ii. 322. 

V. Major, ii. 123, 127, 129. 

V. Mortimere, ii. 05. 
Rannells v. Cierner, iii. 202. 
Rapalye v. Rapalye, ii. 208. 
Rathbone v. Roonev, ii. 270. 
Ratiibiin v. Rathbun, iii 311. 
Ratliff V. Kllis, ii. 519, 515. 
Rausch V. Moore, i. 313. 
Ravenswood r. Flemings, iii. 415. 
Raw V. Pate, iii. 91. 
IJawley v. Holland, ii. 440, 400. 
Rawlings i'. Ailains, i. 171. 
Rawlins v. IJiittel. i. 254. 301. 

c. Lowndes, i. 232. 

V. Turner, i. 04''). 
Rawlyn's case. i. 484 ; iii. 99, 131. 
Rawson '•. Uxbridge, ii. 0. 
Rawstron v. Taylor, ii. 371, 375. 
Way V. Adams, i. 415; ii. 717. 

t'. Fletcher, ii. 347. 

V. Lynes, ii. 302. 305. 

t;. Pung. i. 179, 213, 268. 

V. Sweeny, ii. SM. 
Raybold -■. Raybold. ii. 549. 
Raymcmd v. Andrews, i. C52. 
' I'. Holborn, ii. 18*5. 
V. Holden, iii. 107. 159.272. 
V. Raymond, iii.l23,47ei,482,437,508, 
VOL. I. — h 



Raymond r. White, i. 31. 
liaynliam c. Wilmarih, i. 286. 
Ray nor r. Hag^'ard, i. 041 

r. Uiiynor. i. 217. 

r. Wilnon, iii. 200. 
Rea V. Cn*nvl, ii. 5<K). 
Read f. Kifert, iii. 1G5. 

r. Krie R. R., ii 352. 

V. ICrringlon. ii. 45y. 

c. Fogt'. lii. lO;. 

V. ( iaillard. ii. 58. 

r. Hall. iii. 78. 

V. Huir, ii.507. 

r. Leeds, iii. 449, 

V. Rahin, i. 307. 

I-. Rubin-on, iii. 301. 
Reade u. Livingston, iii. 350. 
Rea<ling v. Altliouse, ii 379. 

c. VVeston, ii. 51, 01. 
Readman r. Coiiwhv, i. 570. 
Ready c. Kearsley, li. 400, 548; iii 270. 
Ream v. Harnish, i. 007. 
Reasoner r. Edmonson, ii. 110; iii. 488. 
Reaume t'. Chamlx'rs, i. in], ls2, r.i7 ; 

iii. 268. 
Reek's Estate, i. 367. 
Reckliow r. Schanek, i. 546. 014. 
Hector I-. Waugh, i. 680, 684. 
Redd r. Burriis, ii. 103 
Reddall r. Mrvan. iii. 225. 
Redden r. Harker, i. 500. 
Reddick v. (Jressman. ii. lOfl, 1.30. 
Redfling r. Redding, iii. I'M). 
Redfern r. Middleton, i. 125; ii. 475. 

r. Redfern, i. 432. 
Redfleld v. Buck, iii. .3.')6. 357. 
Rc.llord r. Gibson, ii. 90. 
Redman r. Sanders, ii. 106. 
Redwine v. Brown, iii. 603, 604. 
Reece v. Allen, ii. 83. 
Reed r. Bigelow, ii. 170. 

V. Dickerman, i. 329, 330. 

r. Farr, iii. 97. 

1-. Kemp, iii. 333. 

V. Kennedy, i. 208. 

V. Lansdale, ii. 45. 

r. Marble, ii. 154. 

V. McCourt, iii. 97. 

1-. .Morrison, i. 2;J0, 2.32, 236, 237. 
241. 264, 260. 

V. Paul. ii. 220. 271. 

V. Reel, i. 018; ii. 53, 65, 63. 80, 
238. 246 ; iii 5<'.6. 

V. Reynolds, i. 5t>4. 

r. Shepley, i. 592. 690; ii. 193. 

r. Spieer. ii. 314. 

r. Ward, i 549. 

V. Whitney, i. 215. 
Reed's Estate, Matter of, i. 385. 
Reeder r. Barr, iii. 212, :i48. 

r. Carey, ii. 12.'i. 

V. Craig, iii. 114. 

r. Purdv, i. O.VH. 

V. Sayrc-, i. 140, 114. 031, 035, G39. 



CXIV 



TABLE OF CASES CITED. 



Reel V. Elder, i. 254. 
Reese v. Jared, i. 7. 

V. Smith, iii. 512, 528. 

?;. Waters, i. 190. 
Reeve v. Long, ii. 636. 
Reeves v. Hayes, ii. 153, 154, 258. 

V. Scully, ii. 257. 
Reformed Dutch Church v. Veeder, ii. 

436. 
Regina v. Board of Works, iii. 449. 

V. Chadwick, i. 224. 

V. Chorley, ii. 357, 360. 
Rehoboth v. Hunt, i. 698. 
Reid V. Fitcli, ii. 518, 579. 

V. Kirk, i. 7. 

V. Sliergold, ii. 785. 

V. Stevenson, i 245. 

V. Sycks, iii. 523. 
Reiff V. Reiff, i. 139. 
Reigard v. Neil, ii. 54. 
Reisnolds v. Edwards, ii. 359. 
Reifly v. Mayer, ii. 135, 2^0. 
Reimer v. Stuber, ii. 340, 345, 346 ; iii. 

178. 
Reinbach v. Walter, i. 370. 
Reinboth v. Zeri)e Run Imp. Co., i. 721. 
Reinicker i\ Smith, i. 688. 
Reitenbaugh v. Lndwick, ii. 54, 57. 
Reitz V. Reitz, ii. 578. 
Remington i\ Campbell, ii. 505. 
Remsen v. Conklin.i. 512. 
Ren V. Bulkeley, ii. 692, 696, 701. 714. 
Renals v. Cowlishaw, ii. 327. 
Rennie v. Robinson, i. 539, 594. 
Rennyson's Appeal, ii. 364, 365. 
Renoud v. Daskam, i. 532. 
Renshaw v. Bean, ii. 354, 362. 
Renziehausen v. Keyser, ii. 538. 
Repp V. Repp, ii. 93. 
Requa v. Holmes, iii. 351. 
Rerick v. Kern, i. 668. 
Revalk v. Kraemer, i. 358, 368, 457 ; ii. 

263. 
Revere v. Leonard, iii. 458. 
Rex V. Collett, i. 622. 

V. Creed, iii. 511. 

V. Dormy. i. 657. 
Reynard v. Spence, i. 208. 
Reynolds v. Harris, iii. 232. 

V. New Orleans Canal & B. Co., ii. 
232. 

V. Pitt, ii. 23, 24. 

V. Pixley, i. 367. 

V. Pool, i. 605. 

V. Reynolds, i. 254. 269, 270. 

V. Williams, i. 498. 
Rhea v. Tucker, ii. 545. 
Rhine v. Allen, iii. 399. 
Rhoades v. Parker, ii. 70, 116. 
Rhode L'. Louthain, iii. 297. 
Riiodes v. Gardiner Sch. Dist., iii. 322. 

V. McCormick, i. 18, 371, 388, 404. 

V. Otis, i. 667 ; iii. 440, 442, 
V. Rhodes, iii. 248. 



Ricard i\ Saunderson, ii. 220. 

V. Williams, ii. 334 ; iii. 152, 155. 
Rice V. Barnard,!. 702. 

V. Bird, ii. 63. 

V. Boston & Wor. R. R., ii. 19 ; iii. 
371. 

r. Bunce, iii. 85. 

V. Cleghorn, ii. 523. 

V. Dewey, ii. 102, 225. 

V. Nelson, iii. 240. 

V. Osgood, ii. 640. 

V. Parkman, iii. 226, 229, 230. 

V. Peet, i. 485. 

V. Rice, ii. 49, 62. 

V. Tower, ii. 173. 

V. White, iii. 20. 

V. Wilburn, ii. 170. 

V. Worcester, iii. 449. 
Rich V. Bolton, i. 629, 634. 

V. Doane, ii. 50, 60. 

V. Smith, i. 538. 

r. Tubbs, i. 358, 385, 401. 

r. Zeilsdorf, i. 16; iii. 471. 
Ricliard v. Bent, iii. 480, 490, 492. 
Richards, Re, i. 30. 

V. Holmes, ii. 78, 82, 85. 

V. Leaming, ii. 89, 91, 95. 

r. Miller, iii. 579. 

V. Richards, ii. 564. 

r. Rose, ii. 327, 333, 383, 885. 
Richards le Taverner's case, i. 578 
Richarilson v. Baker, ii 94. 

V. Bates, i. 478 ; iii. 291. 

V. Bigelow, iii. 412. 

i\ Borden, i. 27. 

V. Boright, i. 488 ; iii. 464, 465. 

V. Cambridge, ii. 180; iii. 410. 

V. Copeland, i. 6, 25, 29. 

V. Dorr, iii. 478, 482. 

V. Gifford, i. 638. 

V. Hildreth, ii. 148. 

V. Landgridge, i. 621, 623, 634. 

V. McNulty, iii. 73. 

V. Palmer, iii. 408, 462, 471. 

V. Pate, iii 266, 267. 

V. Richardson, i. 696. 

V. Ridgelev, ii. 95. 

V. Skoifield, i. 226, 242. 

V. Spencer, ii. 524. 

V. Stodder, ii. 467, 488, 499, 500, 501, 
540. 

V. Tobey, ii. 297, 299, 300, 317, 386, 
387. 

V. Vermont Cent. R. R., ii. 381, 882; 
iii. 449. 

V. Wallis, i. 459 ; ii. 232, 234, 237. 

V. Wheatland, ii. 614, 657. 

V. Woodbury, ii. 47, 48, 55, 519. 

V. Wyatt, i. 210. 

V. Wyman, i. 261. 

V. York, i. 122, 136, 160; ii. 805. 
Richart v. Scott, ii. 383. 
Richburg r. Bartley, i. 514. 
Richraan v. Lippincott, i. 102. 



TAHLr: OF TARES CITED. 



Hiclimoml i'. Aikin, ii. l!*], Ht5. 

r. 'rihhleH, iii. 1U4. 
Hicliinuinl Mt'g. Cu. v. Atlantic Dvlaine 

Co., ii. .'KJT. 
Hiclinioiul U. II. I'. LoiiiHii It. U., ii. 308, 

.510. 
Kiikunl r. Uicknni, i. 715. 
KickiT r. I lam, iii. ;{.')4. 

I'. llil)liar<l, iii. 16.'!. 
Uirkirt r. .Mailfira. ii. 1(»S, 127, 134, 1-16. 
Kii.'ki'ts r. Dickons, iii. f)li.'{. 
Uicki'tt.s r. Losti'ttcr, i. 0'i5. 

r. .Mimti^Dinorv, ii. ttlO. 
IlickH r. Kt-ed. iii. 'Ml, 844. 
KicMcll r. .lackH.m, iii. 4-J7. 
HiiMlf r. Howinan. ii. '2.'}'.). 

V. iicoTize, ii. lol. 

f. LittUlieltl, i. 4t;(J; iii. 418. 
Rider r. Maul, i. f);)2, 720. 

c. Smith, ii. ."J.")."). 

r. Tliompsoii, iii. 408. 
Riiliiclev r. Joliiison, ii. Wfi. 
Kidjieway v. I..an[)lic'nr, ii. 0.53. 
Uidnley c. Stillwcil, i. 55«, ()m, 035. 
Kidgway r. .MeAlpinc. i. 277. 

c. .Masting, i. 201. 
Kidley >: Ki.lk-y, ii. 54.'*. 
Hielil r. Hiiigcnlieimer, ii. 4G0. 
Kielile r. lleiiliiig.'?, ii. 350. 
Hiesz's A|)pc'ai, iii. 248. 
Rife r. (iiyer, ii. 5.",:?. 
Ril'cncr v. Bmvman, iii. 200. 
Rigilen c Vallier. i. 077 ; ii. 149. 
RigH f. Lonsdale, i. 17 ; iii 3. 
Riggan r. Green, i. 485. 
Right r. Bucknell. iii. 123. 

V. Darhv, i. 031, ().33, 635. 643. 

r. Smith, ii. 43!t, 497. 

V. Thomas, ii. 701. 
Rigk-r r. Cloud, i. 177. 
Rigney i: Lovejoy. ii. 118, 127, 132, 222. 
Riker v. Darke, i. 71.5. 
Rilev I'. Garnett, iii. 585, 580. 

V. McCord, ii. 208. 

r. IVhl, i. .367, .368. 
Rin.lgc r. Baker, ii. 387. 
Rinehart r. Ohvine, i. t)07. 

!'. Kineiiart, iii. 511. 
Ring r Billings, iii. 410. 

V. Burt, i. 407, 438. 

V. Gray, iii. 343. 
Ringgold r. Hinggnid, ii. 708. 
Kink.r r. Bisscll. ii. .')t'>4. 
Ripka r. Sergeant, ii. 805. 
Ripley v Bates, ii. 515, 573; iii. 175. 

i». Cross, i. 593. 

f. Paige, i. 18. 

I'. Wightman, i. 508. 

V. Yale, i. 621 ; iii. 174. 
Riscley v. Kyle, i. 622. 
Rising r. Stannard, i. 617, 018, 620, 630, 

630, 653, 088. 
Ritchie r. Glover, i. 593. 
Ritchtncyer i: Morse, i. G. 



Ritgcr r. I'nrkcr, ii. 187, 203, 250. 
Kitier's Appeal, ii. 49.'{. 
Uivard r. Walker, iii. 301. .308, 309. 
Rivers i: Adams, ii. 313, 348. 

r. Bivers, ii. 545. 
Rivis (• NVatf-on, ii. 30*2. 
Rix r. McHenry. i. 30H. 
Houch r. llacki-r, i. :I7^, 451. 

I'. NVadliam, ii. r,M», Tol. 
Wnarty v. Mitchell, ii. 72, 81 ; iii. 274. 
Boalh r. Driscoll, ii. 376, 378. 
Wol.b r. McBride, i. 430, 450. 
Uohh's Appeal, i. 54'J. 
R(jbbins r. Chicago, i. 572. 

V. Knton. iii. 205. 

V. Jones, i 572. 570 ; iii. 79. 

1-. Robhins. i. 217, 202. 

V. Webb. iii. 4'.t4. 
Robert r. Coco, i. 355. 
Roberts <•. Barker, i. 21. 

V. Haumgarten, iii. 151. 

r. Croft, ii. K7. 

c. I)au|)hin Bank, i. 25. 

r. Davy, i. 505. 

V. Fleming, ii 77. 

V. Jackson, iii. 301, 311. 

r. Karr, iii. 4.">0. 

V. Littkfleld, ii 190. 

V. Morgan, i. 0!»0 ; iii. 1,54. 

V. Richards, ii. 225. 

V. Roberts, ii. 3.30, 331, 5;J4, 630; 
iii. 408. 

I'. Robinson, i. 4.32. 

V. Rose. ii. 93. 

v. Stanton, ii. 734. 

r. Ware, ii. 517, 518. 

<iJs. Jiickson d. Webb, iii. 242, 243, 
304,311. 

V. Wi'Icb. ii. 191 : iii. 639. 

I'. Whiting, i. 1.38, 189. 

I". Wiifgiii. i. 4Ni. 

V. Wilco.xson, iii. 2(59. 
Robertson c Campbell, ii. 64, 69, 234. 

V. Corsett, i. 20. 

V. Gaines, ii. 73. 

V. I lav, iii. 257. 

r. McNeil, iii. 95, 131. 

V. Norris. i .'i40 ; ii. 72, 78. 

I'. Paul, ii. 73. 

.-. Piikrell. iii. 17. 98,99, 101. 

r. Robertson, i 710. 

V. Stevens, i. 1H». 

!■. Wilson, ii. 640; iii. 100. 
Robeson r Pittenger, ii. .365. 
Robey V. Williams, iii. IH). 
Robie r. Chapman, i. 174. 

V. Flanders, i. 277, 314. 

r. Smith, i. 018. 
Robinett «•. Compton, iii. 3.36. 

r Preston, i. 0M'.». 
Robins r. Co.x, i. A.'ii). 

V. Kinsie, i. 268. 

V. Quinleven, ii. 066. 
Robinson, Goods of, iii. 608. 



CXVl 



TABLE OF CASES CITED. 



Robinson, Re, ii. 553. 

V. Bates, i. 261. 

V. Black Diamond Coal Co., ii. 367. 

r. Buck, ill. 359. 

V. Cliasse}', iii. 335. 

V. Cropsev, ii 62. 

V. Cross, "ii. 109. 

V. Deering, i. 557. 

r. Eagle, i. 710. 

V. Fife, ii. 189. 

V. Gould, iii. 309, 312. 

V. Grev. ii. 501. 

V. Hardcastle, ii. 723; iii. 239. 

V. Hathawa}', i. 591. 

V. Johnson, i. 699. 

V. Justice, iii. 84, 86, 89. 

V. Lake, iii. 144, 149, 203. 

V. Leavitt, i. 244; il. 222, 227. 

V. Litton, ii. 141, 782. 

V. Loomis, ii. 185. 

V. Mauldin, ii. 568. 

V. McDiarmid, ii. 506. 

V. McDonald, i. 712. 

V. Miller, i. 214, 234, 255. 

V. Verry, i. 539. 

V. Preswick, i. 25. 

V. Kol)inson, ii. 37, 48, 653. 

V. Russell, ii. 113. 

V. Ryan, ii. 120, 240. 

V. Sampson, ii. 199. 

V. Schakett, i. 217. 

V. Urquliart, ii. 89, 198, 201. 

V. Wallace, i. 411. 

V. White, iii. 437. 

V. Wilev, i. 3-56, 410, 424. 

V. Willfams, ii. 158, 160, 161. 

V. Willoughby, ii. 48. 
Robison v. Codman, i. 173, 174, 204, 213. 
Robson v. Flight, i. 487. 
Rochdale Can. Co. v. Hadcliffe, ii. 336. 
Roclie V. Knight, ii. 114. 

V. Ulman, ii. 300. 
Rochford v. Hackman, ii. 5.33. 
Rockfeller v. Donnelly, ii. 271. 
Rockhill I'. Spraggs, in. 391, .396, 401. 
Rockingham v. Oxenden, i. 513. 

V. Penrice, i. 133. 
Rockland W. Co. v. Tillson, ii. 353, 355. 
Rockwell '•. Adams, iii. 96. 

r. Baldwin, iii. 435. 

V. Bradley, ii. 109. 

V. Brown, iii. 399. 

V. Hobby, ii. 89. 

V. Jones, ii. 188, 267. 

V. Servant, ii. 175. 
Roco V. Green, i. 304. 
Rodgers v. Parker, iii. 108, 459, 618. 

V. Rodgers, i. 167. 
Rodman v. Hedden, ii. 193. 
Rodwell V. Phillips, iii. 364, 365. 
Hoe V. Baldwere, i. 114. 

V. Griffiths, ii. 640. 

V. Harrison, i. 511. 

V. Jeffery, ii. 768. 



Roe V. Jones, ii. 640. 

V. Lees, i. 634, 635. 

V. Pattison, iii. 563. 

V. Popham, ii. 459. 

V. Prideaux, ii. 725. 

V. Reade, ii. 573. 

V. Sales, i. 505. 

V. Tranmer, ii. 443 ; iii. 389, 403, 
404. 

V. Ward, i. 636. 

V. Wickett, ii. 746. 

V. Wiggs, i. 642. 

V. York, i. 580,585; iii. 260. 
Roebuck v. Dupuy, iii. 524. 
Roff V. Johnson, i. 359, 401. 
Roffey V. Henderson, i. 32, 671. 
Rogan V. Walker, ii. 7, 45, 54. 
Roger V. Foster, iii. 511. 
Roger's Appeal, iii. 537. 
Rogers v. Ashland Sav. Bk., 1. 377. 

V. Blackwell, iii. 263. 

V. Brent, iii. 328. 

V. Carey, iii. 300, 301, 302, 315. 

V. Crow, i. 29. 

V. Eagle Fire Co., iii. 378, 383, 397, 
398. 

V. Gillinger, i. 16. 

V. Goodwin, iii. 214, 217. 

V. Grazebrook, ii. 116. 

V. Grider, i. 706, 709. 

V. Grossnell, ii. 220. 

V. Hillhouse, iii. 881, 391, 394. 

V. Jones, iii. 344. 

V. Marsh, i. 302. 

r. Moore, i. 126. 

V. Peck, ii. 329 ; iii. 419. 

V. Peebles, iii 525. 

V. Pitcher, i. 600. 

V. Renshaw, i. 442. 

V. Rogers, ii. 525 ; iii. 326. 

V. Sawin, ii. 365. 

V. Sinsheimer, ii. 327, 331, 333. 

V. Snow, i. 516; ii. 18; iii. 413. 

V. Soggs, ii. 405. 

V. Taylor, ii. 382, 384. 

V. Traders' Ins. Co., ii. 195. 

V. Trustees, &c., ii. 224. 

V. Weil, ii. 200. 

V. Woodbury, i. 5. 

V. Wondy, i. 260. 
Roguet V. Roll, ii. 246. 
Rolfe v. Harris, ii. 24. 
Roll V. Osborne, iii. 501. 

V. Smalley, ii. 264. 
Rollins )•. Forbes, ii. 260. 

V. Henry, ii. 171. 

1-. Riley, ii. 18, 466, 474 ; iii. 394 
Rolpb V. Crouch, i. 565. 
Rolt V. Hopkinson, ii. 159, 160. 
Ronaldson v. Tabor, i. 595. 
Ronkendorf c. Taylor, iii. 2.35. 
Roof r. Stafford, i. 486, 488 ; iii. 264. 
Rooney v. Gillespie, i. 644. 
Roosvelt V. Hopkins, i. 504. 



TAItLK OP CASES CITED, 



cxvn 



Root V. Bancroft, ii. MO. 17«, 224. 
I'. HrotluTjion, iii. 'J.'>(). 
I'. CotninDinvi-altli, i. G02 ; ii. 33H, 

:mi.;uk. 

V. Crock, iii. 101. 

t>. Wailliiiiiis, ii. ;S31. 
Root's iiisi'. i. 70. 
Kopor I-. MiCook, ii. l>4, 97. 
Ku8L> f. Davis, i. lj'J'2. 

V. Rosf, iii. 057. 

V. Rose iiunoticcnt Asso., iii. 634. 

I'. Sliarplcss, i. 427. 

I'. Watson, ii. OM. 
Rosi'booni r. Van Vei'iiten, i. 122. 
RosL'wc'll c. I'nor, ii. 3111, 'M',]. 
l{osiii"8 Appoal, iii. o'K). 
Ross I'. Atianis, i. Ill ; ii. (jo5; iii. 375, 
47K 

I-. Coi)l), i. 717. 

V. Drake, ii. 508. 

V. Dy.sart, i. 510, 521. 

V. Garrison, i. .'U-J, ()32. 

V. Gill, i. 480. 

V. Ilointzen. ii. 07. 

V. Norvell, ii. 54. 

V. Kcnnison, ii 2IS, 220. 

V. Mitcliell, ii. I'.i2. 

r. Overton, i. 500. 

V. Ross, ii. 783. 

V. Swarinjjer, i. 608. 

I'. Treniain, ii. 12. 

1'. Wliitson, ii. 05. 

V. Wils..n, ii. 103, 225. 

V. WortliiiiKton, iii. 202. 
Rosscel r. Jarvis, i. 002. 
Rossitor r. Cossitt, i. 230, 243; ii. 182. 
Rotcirs Wharf Co. r. Jud.l, iii. 300. 
Rolliwell r. Dewees, i. 710, 721. 
Roiintree r. Dennanl, i. 35'J. 
Koiijie r. Carraiiine, i. 420. 
Roussett I'. Green, i. 385. 
Routledge v. Dorrii, ii. 724, 729, 730. 
Rowan r. Lytle. i. 040. 

r. Mercer, ii. 204. 

V. Sharps' Rifle Mfg. Co., ii. 100, 
102. 
Rowbntliam r. Wil.son, ii. .384. 
Rowe V. Beckett, iii. 345. 

i". Bradley, i. 227. 

t'. Hamilton, i. 20.5. 

V. Heath, iii. 510, 519, 521, 63.3. 

i". Johnson, i. 2'.M, 204. 

V. Ream, iii. '.'•'•'>*'>. 

V. Tahlo .Mountain Water Co., ii. 
200. 

r. Williams, i. 602. 

r. Wood, ii. 214. 
Rowell r. Klein, i. 140. 

V. Mitchell, ii. 133. 
Rowland r. Rowland, i. 227. 

i: Updike, iii. 15.'). 
Rowletts r. Daniel, ii. 473. 
Rowton f Rowton, i. 214. 
Roy V. .Mcl'herson, ii. 510, 511. 



lloy r. liowc, iii. 601. 

Koval Bank of Liverpool r. fJr.ii.l 

./unction U. & D. Co , iii. 280. 
Royall r. Li»le, iii. 102, 104. 
Royie r. (iu(ij!enlieini, i. 600, 601, u'^2, 

575; ii. 301. 
Uoyer v. Ake, i. 523. 

r. Benlow, iii. 105. 
lioyston !■ Koynton, i. 718. 
Kuhtiis r. I'rindle, ii. 220. 
Rubey r. Barnett, ii. 785, 788. 

I'. Huiit»nian, iii. 237. 
Ruby I'. Aby^»iman .Soc, ii. 233. 
Ivuckman i' (Hilwater, i. 20. 
Rucks i: Taylor, ii. 203. 
Uiiflin); r. Tilion, iii. 355. 
Ruggles r. Barton, ii. IJO. 122, 131. 

r. I.awson, iii. 300, 321, 324. 

V. Ix'sure. i. t>05. 

V. Williams, ii. 54, 153. 
Ruland c. So. Newmarket, ii. 348. 
Rumill r. Robbins, ii. 30O. 
Runlet r. Dtis, iii. 8;i, I.JO. 
Runnels r. Webber, iii. 4'.K>. 
Runyan r. .Mersereau, ii. 101, 127, 134, 
145. 

r. Stewart, i. 241, 244. 
Ruolis V. Hooke, i. 425. 
Rujip's Appeal, ii. 510, 511, 610. 
Rush r. Lewis, ii. 0S8, 7(Hi. 
Kusliin ('. Shields, ii. 153. 
Rusk V. Fenton, i. 485. 
Russ r. Alp.iuvjb, iii. 514, 51(5. 

t>. I'errv, i. 200; iii. 4'.KJ. 

V. Steele, iii. 40:!, 5<K5. 
Russel I'. Russel, ii. 80, 87. 

V. Smithies, ii. 244. 
Russell /•. A Hard, i. 503. 

c. Allen, i. 54(t, 548; ii. 142, 144. 

V. .\ustin. i. 211. 203. 

I'. Beebe, iii. 212. 

«•. Blake, ii. 238. 

I-. Carr, ii. 47. 

V. Coflin, ii. 469; iii. 384. 

r. Dudley, ii. 18.3, 18-L 

V. KIden, iii. 504. 

r. Kly. ii. 114. 

r. Krwin, i. 502, 509; iii. 167. 

V. Fabvan, i. 5;J7, 601, 603, 020, 048, 
051, 054. 

r. Hoar, iii. 14. 

I'. Hubbard, i. 070. 

:•. .1.1. kson. ii. 3.X), 352. 

V. Ia'wIs, ii. 50t) 

r. .Maloney. iii. 01, 94, 95, 5k3. 

V. Marks, iii. 174. 

r. I'istor. ii. 220. 

V. Richards, i. 5, 0. 

V. Rumsev, i. 201, 432; iii. 224. 

I-. Southard, ii. 46, 49, 64, 03, G<a 
241. 

V. Sweesey, iii. .'13<5. 

f. 'roi>i>injr, iii. 280. 

I'. Watt, ii. 91. 



CXVIU 



TABLE OP CASES CITED. 



Russell V. "Watts, ii. 332. 

Rust V. Boston Mill Corp., iii. 459. 

V. Low, ii. 300. 
Rutlierf(}r(l v. Greene, i. 89. 

V. Taylor, iii. 80. 

V. Tracy, iii. 81. 
Rutt V. Howell, i. 450. 
Ryall 1-. Holle, ii. 36, 41. 
Ryan v. Brown, iii. 441. 

V. Clark, i. 473. 

V. Dox, ii. 517 ; iii. 247. 

V. Dunlap, ii. 134. 

r. Wessels, i. 355. 
Ryder, Re, ii. 599. 

V. Innerarity, iii. 232. 
Ryer v. Gass, ii. 138. 
Ryerson v. Eldred, i. 595. 

V. Quackenbush, i. 550, 551, 552; 
ii. 302. 
Ryerss v. Farwell, i. 594, 597. 
Ryhiner v. Frank, i. 359. 
Rylands v. Fletcher, i. 573. 



Sackett v. Sackett, i. 40, 146, 163. 

Sackner v. Sackner, i. 459- 

Saddler v. Lee, ii. 374, 377. 

Sadler i^ Pratt, ii. 723. 

Sadler's Appeal, ii. 524, 525. 

Sadlers' case, iii. 63. 

SaflFord v. Safford, i. 269. 

Saffyn v. Adams, i. 473. 

Saiiler v. Signer, ii. 114. 

Sailor v. Hertzogg, iii. 152, 170. 

Sainsbury v. Matthews, i. 11. 

St. Amour v. Kivard. ii. 761. 

St. Andrew's Church v. Tompkins, ii. 

157. 
St. Andrew's Church Appeal, i. 531 ; ii. 

323.' 
St. Clair v. Williams, i. 303. 
St. Clair County v. Lovingston, iii. G5, 

66, 438. 
St. John i\ Benedict, ii. 459. 
V. Kidd, ii. 406. 
V. Palmer, i 563; iii. 511. 
St. Louis V. Kaime, i. 570. 

V. Morton, i. 591. 
St. Louis Court v. Griswold, i. 70. 
St. Louis Iron Mt., &c. Ry. Co. v. 

Higgins, iii. 264, 266. 
St. Louis University ?•. McCune, iii. 173. 
St. Paul V. Dudley, ii. 204. 
St. Paul & P. R. R. Co. V. Schurmeir, 

iii. 438. 
St. Vincent O. Asylum v. Troy, ii. 339, 

395. 
Sale V. Pratt, ii. 392. 
Salem ?•. Edgerly, ii. 135, 186, 209, 214, 

215, 221. 
Salisbury i-. Andrews, ii. 350, 355, 365. 
V. Great N. Ry. Co., iii. 449. 



Salisbury v. Phillips, ii. 51. 
Sallade v. Jame.<, i. 145. 
Salle V. Prinun, iii. 109. 
Sallee v. Chandler, ii. 524. 
Salmon v. Bennett, iii. 356. 

V. Clagett, ii. 141, 151. 

V. Matthews, i. 578. 

V. Smith, i. 498, 559, 860. 
Salmons v. Davis, iii. 159. 
Saltmarsh r. Beene, ii. 569, 570. 

r. Smith, i. 313. 
Saltonstall v. Sanders, iii. 549. 
Sammes' case, ii. 436, 438. 
Sample v. Coulson, ii. 519, 526. 
Sampson v. Burnside, i. 663, 664, 666. 

V. Easterbj', i. 5.33. 

V. Grimes, i. 549. 

V. Henry, i. 656, 657. 

V. Hoddinott, ii. 368, 380. 

V. Pattison, ii. 84. 

V. Schaeffer, i. 620. 

V. Williamson, i. 426, 442 ; ii. 112. 
Samson v. Thornton, iii. 329. 
Samuels v. Borrowscale, iii. 151, 342. 

343. 
Sanborn v. Clough, iii. 422. , 

V. French, iii. 164, 168. 

V. Hoyt, iii. 465. 

V. Rice, ii. 327. 

V. Woodman, ii. 22. 
Sandback v. Quigley, i. 291. 
Sanderlin v. Baxter, ii. 331. 
Sanders v. Merryweather, i. 505. 

1-. Partridge, i. 465, 526, 5-34, 535, 
5.39, 540, 541, 544. 

V. Reed, ii. 140. 

V. Wilson, ii. 235. 
Sanderson ?>. Penn. Coal Co., ii. 367, 
368, .393, 394. 

i\ Price, ii. 106. 

V. "White, iii. 551, 557. 
Sandford r. Travers, iii. 517. 
Sandilands, Be, iii. 290. 
Sands v. Cliurch, ii. 183. 

V. Codwise, iii. 2:-;i, .353. 

t'. Hughes, i. 540; iii. 149. 

V. Pfeiffer, i. 7, 8, 27 ; ii. 163. 
Saner (;. Bilton, i. 575. 
Sanford v. Harvey, i. 040, 641, 642, 613, 
644. 

V. Irbj-, ii. 780. 

r. Jackson, i. 335. 

V. iMcLean, i. 267. 

V. Pierce, ii. 233. 

?'. Sanford, iii. 120. 
San Francisco v. Fulde, iii. 149, 150, 

157. 
Sangamon R. R. Co. v. Morgan, ii. 

164. 
Sanger v. Bancroft, ii. 119. 
Sanhill v. Franklin, i. 041. 
Santa Barbara Rank v. Guerra, i. 368. 
Santa Cruz Bank ?•. Cooper, i. 447. 
Sarahas v. Fenlon, i. 372. 



TADLE OF CASES CITED. 



CXIX 



Sargent v. nallnnl, ii. .^ir,, 334, 335, 837, 
342. 343, ;UG, .ilU. 

V. KuIUt, i. 246. 

i;. IIowi', ii. H'2. 

i: MeFiirlaiui, ii. 'J20. 

V. I'lirsoiis, i. tJlto. 

V. I'iiTco, iii. ti42. 

I'. I'riiy, i. i')"J4. 

V. Simpooii, iii. 2(t3. '218. 

I'. Sniitii, i. 533, Uo2. 

V. Towne, i. '.*1 ; iii. 664. 

V. Wilson, i. 430. 
Sarlert <•. Sarlfs, i. \'M, 137. 152, 154. 
Satterli-e r. .Maltliewsoii, i. 201. 
Satlerwliite r. Uos.tiT, iii. loO. 
SauU-t r. Siu'pliL'nl, iii. 01. 00. 
Sauiiilers c. Cathvfll. ii. 4bO. 

r. DelifW. ii. .')24 

V. Edwards, ii. 528. 

V. Kvaiis, ii. 727. 

V. Frost, ii. Ibl, 187, 2:U, 238, 240, 
240, 207. 

V. Harris, ii. 552. 

r. NVwman, ii. 344, 372, 398. 

I'. Stewart, ii. 54. 
Saunders's ease, i. 150. 
Saunderson r. Stearns, ii. 555. 
Savagi.- c. Dooley, i. 2:J7 ; ii. 100, 130, 
100, 173. 

r. Hall, ii. 122, 204, 200. 

t'. Lee, ii. 007. 

i". Murpliy, iii. 350. 
Savery r. Hrownin^, iii. 2'.l8. 
Savile v. IJiaeket, ii. (iOo. 
Saville v. Saville, i. 12'.(. 131. 
Sawyer r. Kendal, iii. 141, 156. 

v. Lyon, ii. 217. 

V. Peters, iii. 320. 

V. I'rickett, ii. 257. 

V. Skowhegan, ii. 573. 

V. Twiss, i. 20. 
Sawyer's Api)eal, ii. 508. 
Sawyers r. t'ator, i. 722. 
Sa.\l)y ('. Manchester Ii. R., i. 574. 
Say c. Stoddard, i. (514. 
Say and Seal's case, iii. 282. 
Saylors v. Saylors, ii. 225. 
Savre r. Townsend, ii. 513. 
Scales r. Cockrill, iii. 147. 158. 
Scanlan i-. Wri^flit, iii. 342. 
Scatterwood c. Kd^re. ii. 022, 623, 740. 
Scliadt r. nepi)e, i. 3sr,. 
SchaftT r. jJeiily. ii 2'>7. 
Schaller r. (ireer, iii. 521. 

V. Lavretta, ii. 407, 481. 638. 
Scliaffner v. (irutzniacker, iii. 275. 
Schallr. Williams Valley H. U., iii. 170. 
Sclie'lda r. .Sawyer, iii. 212. 
Sclieerer r. Scheerer, ii. 511. 

r. Stanley, i. 548. 
Schenck r. Conover, ii. 251 ; iii. 232. 

V. Ellenwood, ii. "-'W. 

r. Kvoy, i. 087. 
Schernierliurne r. Buel. i. i'JS. 



Sdiermerliornc r. Scliemierliorne, iii. 

505. 
Sclneffeliii r. ('arjH'nter, i. 684. 
Sdiiie r. HrokliauH. ii. 8«4J, 388. 3'J3. 
Seliillin^ r. Ilolnus. i 521, 55'J, 642. 
Schley <•. Fryer, ii. 217. 

r. Lyon, ii 4'.t8 
ScldiclitiT c. I'lnlli|)8. ii. 372. 
Schnudt r. Iloyt. ii. 118, 155. 

r. Cjuinn, ii. 34'J. 

r. Willis, i. 210. 
Scliinitz '-. Scluuitz, iii. 4<i^l. 
Schniuiker r. .SiiuTt, ii ■J2t). 
Schneider r. IlutTnian, i, 408. 
Sclinorr's Appeal, in. 5.'iO. 
Scliolield V. luwa llonieatcad Co., iii. 

480. 
Scliuu! Directors, &c. See Tyrone 

School Directors, &c. 
School Trustees r. llovey, i. 448. 
Schools, The, c Kisley, iii. 03. 
Schouler, Kr jmrlf, ii. 508. 
Schouton V. Kilmer, i 424. 
Schrack v. Zuhler, iii. 14S. 150. 
Schrader v. Decker, iii. 207. 
Schreilier v. I'ary, ii. 114. 
Schryver r. Teller, ii. 212. 
Schuisler i'. Ames, i. 584. 
Schulenherg r. Uarrinian, ii. 15. 
Schult r. Harvey, i. 572. 
Schullz V. Klliot't, i. CKHJ. 
Schultz's Appeal, ii. 52t». 
Schumaker c. Schmidt, iii. 538. 
Schurnieier v. St. I'aul & V. K. U., iii. 

43'.t. 
Sihutt r. I.rfirge, iii. 2(jO, 'MA. 
Schuyler v. Leggett, i. 032, 0;{5, 647. 

r. .Smith, i. 030, 051, tii>;5. 
Schuylkill Co. i". Tholmrn. ii. 100. 
Schuylkill Nav., &c. Co. i-. Frencii, ii. 

303. 
Schuylkill H. R. v. Schmoele, !. 620, 

558. 
Scliwoerer v. Boylston Market, ii. 323, 

327. 
Scituate v. Hanover, ii. 647. 
Scofield r. Lockwood, iii 423. 

V. St. John, ii. 407. 577. 
Scorell V. Hoxall, iii. 307. 
Scott I'. Battle, iii 78. 

V. Beutel, ii. 333. 

V. Buclianan, i. 480, 488. 

r. Douglass, iii. 100. 

V. Fields, ii. 51. 

r. Freeland, ii. 77. 

r..(;uernsev, i. 006, 008; ii. 760. 

r. Hancock, i. 302. 

r. Henrv, ii. 52. 57, 03. 

V. Luni.' i. 527, 548; ii. 280, 29Q 
205. 20<5. 

i». McFarland. ii. 47. 57. 190. 

r. McMillan, ii. 207, 380. 

V. I'urcell. iii. 271. 

r. Scarborough, ii 542. 



cxx 



TABLE OF CASES CITED. 



Scott 1-. Scott, iii. 477. 

V. Simons, i. 562, 571. 

I'. State, i. 088. 

V. Wharton, ii. 141. 

V. Whipple, iii. 288. 
Scoville V. Hillianl, i. 716. 
Scranton v. Piiillips, ii. 384. 
Scratton v. Brown, iii. 64, 65. 
Screven v. Gregorie, ii. 320. 
Scribner i\ Holmes, iii. 493. 
Scrimshire v. Scrimshire, i. 225. 
Scriver ;;. Smith, ii. 367 ; iii. 511. 
Scrugham v. Wood, iii. 313. 
Scull V. Reeves, ii. 547, 5-52. 
Seabrook v. Moyer, i. 564. 
Seagram v. Knight, i. 160. 
Seal V. Seal. i. 786. 
Seaman i-. Fleming, ii. 157. 

V. Nolen, i. Syt). 
Searcy v. Reardon, ii. 525. 
Searle n. Chapman, i. 437, 452 ; ii. 230. 

V. Sawyer, ii. 105, 107, 141. 
Sears v. Cunningham, ii. 550. 

V. Hanks, i. 441. 

1-. Russell, i. 89; ii. 754, 761, 772, 
773, 783. 

V. Sellew, i. 693. 

V. Smith, ii. 91. 
Seaton v. Jamison, i. 292. 

V. Son, i. 368, 385. 
Seaver v. Durant, ii. 232. 

V. Phelps, i. 485. 
Seavey v. Jones, iii. 412. 
Seaward v. Willock, ii. 606. 
Seawell v. Bunch, iii. 178. 
Second Cong. Society v. Waring, ii. 

670. 
Second Nat. Bank of St. Louis v. 

Grand Lodge of Mo., ii. 219. 
Second Kef. Presb. Church v. Disbrow, 

ii. 784. 
Secor V. Pestana, i. 631, 634. 
Section 16 in Hocking County, Trus- 
tees of, r. Spencer, i. 518 ; ii. 293. 
Sedgwick v. Laflin, i. 88; ii. 44, 71, 
719. 720. 

V. Minot, iii. 578. 

V. Place, iii. 357. 
Seeger v. Pettit, i. 23. 
Seek V. Haynes, i. 392, 408, 453. 
Seers v. Hinds, i. 504. 
Seevers v, Delashmutt, ii. 112. 
Seibert v. Levan, ii. 399. 
Seibert's Appeal, i. 396. 
Seibold v. Christman, ii. 506, 507, 508. 
Seidensparger v. ^\>enr, ii. 341. 
Seigle V. Louderbautrh, iii. 166. 
Selby V. Alston, ii. 536, 559, 561. 

V. Stanley, ii. 94. 
Selden v. Del. & Hud. Canal Co., i. 662, 
663, 66.5, 671. 

V. Vermilyea, ii. 540. 
Sellers v. Staicup, ii. 54, 63. 
Sellick V. Addams, iii. 131. 



Sellman v. Bowen, i. 293, 304. 
Semple v. Burd, ii. 151. 
Senhouse i'. Christian, ii. 344, 352. 
Sennett v. Bucher, i. 472, 
Sentill V. Armor, i. 367. 

V. Robeson, i. 174. 
Sergeant v. Steinberger, i. 679, 701. 
Seventeenth Street, Re, iii. 451. 
Sewall L-. Lee, iii. 52. 
Sewell V. Angerstein, i. 29. 

V. Cargill, ii. 436. 

v. Lee, i. 252. 
Sexton V. Pickett, ii. 211. 

V. Wheaton, iii. 356. 
Seymor's case, i. 94, 268 ; ii. 590. 
Seymour v. Carter, i. 672. 

V. Courtenay, iii. 472, 473. 

V. Darrow, ii. 158, 195. 

V. Freer, i. 35 ; ii. 513, 535. 

I'. Lewis, ii. 314, 320, 330, 332. 
Shackelford r. Hall, ii. 10 
Shackelton v. Sebree, ii. 444, 453, 467, 

479 ; iii. 385. 
Shackleford v. Bailey, iii. 167, 410. 

V. Todhunter, i. 434. 
Sliaefer's Appeal, ii. 394. 
Shaeffer v. Chambers, ii. 139, 234, 244, 
246. 

V. Weed, i. 217. 
Shafer v. Wilson, ii. 381, 393. 
Shafter v. Huntington, ii. 513. 
Shall V. Biscoe, ii. 97. 
Shanahan v. Perry, iii. 508. 
Shane v. Kansas C. R. K. Co., ii. 372. 
Shankland's Appeal, ii. 5.'!3, 572. 
Shanks v. Lancaster, iii. 294. 

V. Lucas, iii. 20, 206. 
Shannan v. Bradstreet, ii. 104. 
Shannon r. Burr, i. 498, 547. 

i: Marselis, ii. 215. 
Shapleigh v. Pilsbury, ii. 436, 444, 470, 

640, 667. 
Shaple}' V. Rangeley, iii. 82. 
Sharkey v. Sharkey, ii. 48. 
Sharon Iron Co. v. Erie, ii. 22. 
Sharp I'. Brandow, iii. 163, 164, 166. 

V. Petit, i. 293, 294. 

V. Proctor, ii. 50. 

V. Robertson, iii. 265. 

z'. Ropes, ii. 327. 
Sharpe v. Kelley, i. 593, 620. 
Sharpley v. Jones, i. 315. 
Siiarpsteen v. Tillou, ii. 704. 
Shattock V. Shattock, ii. 689. 
Shattuck V. Gragg, i. 283. 

V. Lovejoy, i. 505. 
Shaw V. Carbrev, i. 6 ; iii. 366. 

V. Coffin, i. 511. 

V. Farnsworth, i. 483. 

V. Galbraith, iii. 478. 

V. Hayward, iii. 311, 319. 

V. Hearsey, i. 706. 

V. Hoadley, ii. 188, 265. 

V. HofEman, i. 470, 565, 613. 



TAIiLK OF CASKS CITED. 



CXXl 



Sliaw IV Kiiy, i. 470. 

f. Loud, ii. 271 ; iii. 279. 

V. Neale, ii. lo'J, UU), 101. 

r. I'lirtriiljji', i .'J 10. 

V. I'oor, iii. 'iV.i. 

i: Hend, ii. >'>**!. 

V. Htiss, i. 2i>7. 

V. U'ei^'h. ii. u.57. f>3x, 0o3. 
Sliawmiit Hunk v. Uuston, i. 19, 637, 

5«li», 677. 
Slit-ate r. CiTrv, ii. 17<5. 178. 

c. O'NVil, i. -Jf^d. .U.'J. 
Slit'uri.'r I". l<anj;er, iii. I'Jl. 

V. Slii-artT, i. 7iH. 

r. Winston, i. "I-!. 
Slieckell v. Hopkins, ii. (W. 
Sht'i'ii, A'.r /-.(r/< , i. ;5(). 
Sheets r. Alien, ii. 103. 

V. Cirublis, ii. (i'lO ; iii. (wS, 577. 

V. Selden, i. •4<)7. r.Ol. .51(1, olil, 521, 
53ti, GtK), oils, 570; iii. 411. 
Slieetz '•. Lonj^lois, iii. 511. 
ShelTey r. (iardim-r, iii. 511. 
Slielliild i: Love^in^;, iii. l(j. 

r. Orrery, ii. t',;{2. 773. 
Sheliaii r. Harnett, iii 230. 
Sheldon -•. Hird. ii. 181,206. 

V. ratterson, ii. 248. 

r. Sheldon, ii. 571. 

r. Wriffht, iii. 222. 
Shellev r. Wright, iii. 111. 
Shelliv's case, ii. 424, 450, 458, 631, 

CI 7, tH7 ; iii. 502. 
Slielor r. .Mason, i. 35<>, 425. 
Shelton r. Alcox, iii. 130. 

V. Armor, iii. 2^7. 

V. Carrol, i. 282. 600. 

V. Codman, i. 630, 548. 

V. Doe, i. 5'.J2. 

V. Fieklin, i. 24. 

V. Homer, ii. 560. 
Shelton 's ease, iii. 302. .303. 
Shepard r. Hripus, i. 578. 

v. -Merrill, i. 565. 

V. I'hilbriek, i. 144. 

r. Richards, i. 0'.t5. 

V. Kyers, iii. 130. 

V. Shepard, ii. 157, 271. 

r. Spauldin^. i. 5bO, 585. 
Sheparilson r I'erkins, ii. 379. 
Sheperd v. Adams, ii. 215. 
Sliephard r. I.iltle, ii. 420. 

I'. Sliejihard, ii. 761. 
Shepherd r. ("assiday, i. 4.55. 

«•. Ciimminns, i. 635. 

V. Howard, i. 257 ; iii. 270. 

V. .McKvers, ii. .547, oVi. 

V. Uo83 Co. Commrs., iii. 232. 

i\ Thompson, iii. 4.>5. 

V. Union Ins. i'n., ii 173. 

V. White, i. 3b2 ; ii. 509, 617, 619, 
5«>9. 
Sheppard r. Wardell. i. 2tM). 
Shepperd v. Murduck, ii. 190. 



Sheratz c Nicodemud, ii. 97. 
Sherhurne r. JoneH, i. 141, 616, 628 

I'. Morse, ii. 4'.t4. 
Sheridan r. Welch, ii. 81. 
ShcrilT f. Wrothoiii, ii. 776. 
Sherman r. Ahhot, ii. 205. 

V. Chaniplaiii Trunsp. Co., i. 597, 
60.3. 

r. Dod^e, ii. 478. 

r. Kane, iii. 144. 

V. .McKcon. iii. 452. 

I'. Sherman, ii. 134. 

r. WililiT, i. 57".'. 

r. WilUtt, iii. 417. 

V. Williams, i. 520, GOO. 
Sherred r. Cisco, ii .3.H.5. 

I'. Soiithwick, i. 421. 
Sherry r. Brown, i. 3H3. 
Sherwood r. Harlow, iii. 3Hl. 

V. Hiirr, ii. 334, •V-to. 

r. Dunhar, ii. 2(XJ. 

r. Sa.xton, ii. H5. 

V. .Seaman, i. 522. 

V. .Sutton, ii. 5.)6. 
Shibia r. Klv, ii. 492. 
Shield V. Hatis, i. 31.3. 
Shields r. I.ozear, i. 594; ii. 106, 133, 

l.!4, H.J, 168, 180. 
SIdels I'. Stark, i. 680, 694. 695. 
Shillaber v. Uobinson. ii 82. 
.Shin r. Fre<lericks, ii. 203. 
.Shiiidelheck r. .Moon, i. 571. 
Shine r. Dillon, i. 53'.t. 

r. Wilco.x, i. 148. 
Shinn r. Smith, ii. 224. 
Shipley r. Fifty Associates, i. 670, 673. 
Shipman r. Heers, ii. .364, 'Mo. 

V. Horton, i. 488. 
.S|ii])pen's Appeal, i. 30^t. 
.Shirkev V. Hanna. ii. 266,267. 
Shirley r. Avres, iii. 305, 820, 321, 322. 
323," 324. 

r. Conpress Supar Hefuiery, ii. 93L 

V. Fearne, iii. 2'.M. 

r. Shirley, ii. 98. 
Shirras r. Caii:, ii. 157 ; iii. 459. 
Shirtz r. Sliiriz, i. 294. 
Shiiz r. DiclTcnbach, ii. 88. 
Shively r. Hume, ii. 372, 377. 

V. .Jones, ii. 2t>3. 
Shoenjaker r. Smith, ii. 514. 

c. Walker, i. 201, 214.^ 
SliiiiMiiakfr's Appeal, i. r53. 
Shoenlier^'cr r. Hackman, iii. .321. 

I-. Watts, ii. 4<1. 

V. Zook. iii. 3*)3. 
Shore r. Wilson, iii. 429. 
Shores r. Carlev, i. is:'.. 340. 

r. Scoft Kivor Co., ii. 249, 26a 
Short I-. Tavlor, i. ti73. 
Shortall r. llinckley. iii. 350, 352. 
Shortz r. Unaiipst, ii. 5.)9. 
Shotwell c. Harrison, iii. 836, 343. 

(' Mott, iii. 552, 654. 



cxxii 



TABLE OF CASES CITED. 



Sliove V. Dow, i. 686. 

V. Pincke, iii. 403. 
Showers v. Kobiiison, i. 362, 406, 407, 

452, 459. 
Shrewsbury First Par. v. Smith, ii. 556 ; 

iii. 217. 
Shrewsbury's (Countess of) case, i. 166 ; 

iii. 252. 
Shrickcr v. Field, ii. 249. 
Slirieve v. Stokes, ii. 3S2, 383. 
Shriver v. Lynn, ii. 616 ; iii, 231. 
Shrunk v. Scliuylkill Nav. Co., iii. 439. 
Shryock v. Waggoner, ii. 526. 
Sliuey v. Latta. ii. 194. 
Sliulelt V. Khuielt, ii. 183. 
Shult i\ Barker, i. 150. 
Shults V. Moore, iii. 291, 338, 339. 
Shumway v. Collins, i. 505, 506, 545, 
559. 

V. Simons, iii. 59 
Shurtleff v. Francis, iii. 300. 
Shurtz V. Thomas, i 265. 
Shutt V. Rambo, i. 105. 
Sibley v. Ellis, ii. 340. 

V. Holden, iii. 449. 

V. Rider, ii. 133, 562. 
Sicard v Davis, iii. 164, 285, 844. 
Siceloff V. Redman, ii. 657. 
Sienion v. Schurck, ii. 578. 
Sigmund u. Howard Bank, i. 475, 565. 
Sigourney v. Eaton, i. 686 ; ii. 155. 
Sillowav i: Brown, i. 302, 390,406, 421, 

437, 451, 458, 693; ii. 253. 
Silsby V. Allen, i. 623. 

V. Bullock, i. 189. 

V. Trotter, ii. 402. 
Silver Lake Bank r. North, ii. 240. 
Silver Sprinsi D. & B. (^o. v. Wanskuck 

Co., ii. 367. 
Silvester v. Wilson, ii. 050. 
Simers v. Saltus, i. 595. 
Simkin r. Ashurst, i. 649. 
Simmons r. Cloonan, ii. 331 ; iii. 421. 

V. Johnson, i. 427 ; iii. 458. 

V. Norton, i. 135, 136. 

V. Simmons, ii. 768. 

V. Spratt, iii. 280. 
Simms V. Hervey, iii. 254. 
Simonds r. Powers, i. 412. 

V, Turner, i. 534. 
Simonton v. Gray, i. 216, 238, 239, 244, 
311. 

V. Loring, i. 577. 
Simonton's Estate, iii. 318. 
Simpkins r. Rogers, i. 142. 
Simpson v. Amnions, i. 681. 

V. Bowden, ii. 805. 

V. Dix, ii. 105. 

V. Mundee, ii. 91 ; iii. 287, 333, 342. 

V. Poe, i. 364. 

V. Wallace, i. 364, 410. 
Simpson's Appeal, i. 265. 
Sims V. Bardoner, iii. 267. 

V. Conger, ii. 621, 



Sims V. Everhardt, iii 266. 

V. Irvine, iii. 208. 

1-. Meacham, iii. 58. 

V. Smith, ii. 405. 
Simson v. Eckstein, ii. 81. 
Sinclair v. Armitage, ii. 48. 

V. Jackson, ii. 566, 725, 733; iii 76, 
116, 120. 
Singer Mfg. Co v. Lamb, iii. 267. 
Singleton v. Singleton, i. 303. 
Sip V. Lawback, i. 264. 
Sipes V. Mann, i. 411. 
Sisk V. Smith, i. 266. 
Sisson V. Seaburj', ii. 015. 

V. Tate, ii. 282. 
Siter V. McClanachan, ii. 156. 
Sixty-Seventh Street, Re, ii. 709. 
Size V. Size, i. 404, 451. 
Skaggs V. Nelson, ii. 91, 96. 
Skally V. Shute, i. 561. 
Skeel V. Spraker, ii. 212. 
Skerrett v. Chille. Pros. Soc, iii. 406. 
Skinner v. Beatty, i. 430. 

V. Buck, ii. 263. 

V. Dayton, ii. 22. 

V. Miller, ii. 45, 53, 63. 

V. Shepherd, ii. 2, 325. 

V. Wilder, i. 14. 
Skouten v. Wood, i. 408. 
Skraink v. Oertel, ii. 397. 
Skull V. Glenister, ii. 317. 
Slater v. Dangerfield, ii. 658. 

V. Jepherson, iii. 161. 

V. Nason, i. 79. 

V. Rawson, i. 62, 63 ; iii. 136, 138, 
159, 479, 483, 487. 501. 
Slaughter v. Detinev, i. 434. 

V. Foust, ii. 259!^ 266. 

V. Latimer, i. 429. 

V. McBride, i. 415. 
Slavmaker r. St. John, ii. 518. 
Slay ton v. Mclntire, ii. 130, 133. 
Slee r. Manhattan Co., ii. 43, 53, 81, 206, 

240. 
Sleeper v. Laconia, iii. 4.36. 
Sleigh V. Metham, ii. 443. 
Slice V. Derrick, i. 720 ; iii. 160, 164. 
Sheer v. Pittsburg Bank, ii. 189. 
Slim V. Croucher, iii. 90. 
Slingsby v. Barnard, ii. .383. 
Sloan V. Frothingham, ii. 234. 

I". HoUida}', ii. 351. 
Sloane ;•. Nance, i. 401. 

V. Whitman, i. 289. 
Slocum r. Seymour, iii. 366, 369. 
Slowey V. McMurray, ii. 53, 62, 63. 
Small r. Clifford, i. 690. 

r. Jenkins, i. 687. 

V. Proctor, i. 67, 226 ; iii. 99, 101. 
Smart r. Morton, ii. 384. 

V. Whaley, i. 222. 
Sniartle r. Williams, ii. 176. 
Smiles v. Hastings, ii. 350, 356, 396. 
Smiley v. Van Winkle, i. 585. 



TAIU.K OF CASES CITED. 



cwiii 



Smiley v. Wright, i. 21 1, liM, 2G1. 304. 
8iiiitli, (ii)U(ls of, iii. o71. 

I'. Ailaiiiii, ii. ;{77. 

V. A.l.lleiniin. i. HOC. 

V. Allfii, i. 7U1 ; iii. 32!), 356, 3o8, 
:wi. 

V. Aiiiii-ri>, ii. 273. 

I'. Ankriiii. i. MiK 

V. Atkins, i. GO-i. 

V. Hiiltlwin. i. :5.{0. 

V. Barnes, ii. 35'.t ; iii. 69. 

V. Bell. ii. 783. 7H7. 788. 

I'. Bennett, ii. 337. 

V. Benson, i. 10; iii. '277. 

r. Brackelt, i. -lo:*, 410, 421, 141. 

I'. Brnnnan, ii. Di. 

V. Brinker, i. 534. 

I'. Brisson, ii. 7(15. 

V. Burijess. iii. 348. 

V. Burtis. iii. 137. 1.38, 1.30, 140, 100, 
170. 

V. Butler, iii. 40(5. 

V. Carney, iii. 402, 529, 630. 

r. Cliapin, iii. 155. 

i^. C^linpinan, ii 204. 

V. ClilTonl, i. (!7'.i. 

i;. Clyfi;>r.i, ii. tV.'.A. 

V. Coluniliia Ins. Co., ii. 241. 

V. Common weiiUI), i. 20. 

V. Conipton, iii. 521. 

V. Crosland, i 58H, 504. 

V. Desciiauines, i. :'70. 

V. Dickinson, iii. 2'J7. 

V. Doe, ii. KKJ. 

r. Dyer, ii. 14t), 147, 268. 

V. Katon, i. 404. 

V. Eppington, i. 608, 539. 

V. Estell. i. 407. 

V. Eustis, i. 237, 212, 291, 304. 

V. Follansbec. i. 140, 103. 

V. Forrest, iii. 457. 

V. Gaines, i. 710. 

V. Ganhier, i. 202; ii. Ill, 200. 

V. Goodwin, ii. 140. 

V. Goiildinn. i GOO. 

V. Hamilton, iii. 06, 453. 

V. Hanilv, i. 2.59. 

r. Ililenian, iii. 210, 212. 

V. Ilosmer, iii. Kil, 103, 170, 172. 

r. Howden, iii. 452. 

V. Huglies, iii. 488. 492, 493. 

V. Hunt, iii. 341. 

r. Hunter, ii. 750. 

I'. Infcalls, i 247. 

r. Ingram, iii. 100. 

V. Jackson, i. 210. .300, 703. 

V. Jewctt, i. 135, l.",7, 138. 

I'. Johns, ii. 10,'), 130. 

r. Jolinston, i. 11 ; iii. 416. 

r. Kelly, ii 10.5, 182. 2.53; iii. 17 

V. Kenrick, ii. .302, 374. 

V. Keoliane, ii. 119. 

»•. Kni^'lit, i. 6HH. 

V. Kniskern, i. 330. 



Smith r. Kncrhel. ii 01. 
r. Ladd, iii. 4i>5 
V. Lani;i-wal(l, ii 390. 
V- Lawrence, iii. 873. 
r. Lee, ii. 3.Vj. 
r Ix^'wis, ii. 177. 
I-. Low. i. 489. 
c. Litllefiel.l, i (M9, 000. 
('. Malin>;s, i 557, i5<j4. 
r. .Mallone, i. 411. 
r. Manninj;, ii. 181, 188. 
r. .Mapieliack, i 542. 
r. .Mare, i. 433. 
r. .Marrahle, i. 570. 
r. .Martin, iii. 421. 
V. Met arty, i. 229,230. 
IV .Metiowan, iii. 2(iO. 
r. Merritt. i. 416 
v. .Metcalf, ii. 538. 
V. .Miller, i. 423. 4.33; ii. 311. 
r. Mitcliel, iii. 10((. 
r. Monmouth Ins. Co., ii. 173. 
V. .Montes, iii. 121. 
V. Moodus Water Power Co., iii. 

100. 
V. Moore, ii. 102, 107, 123, 127, 132, 

1 10, 17f,, 533. 
V. .Murpiiy, iii. 434. 
V. Niver, i. 681. 
I'. Omans, i. 427. 
r. Packard, ii. 2.52. 
r. I'ainter, ii. .'>59. 
!•. Parks, ii. 6.3, 116. 
V. Patton, ii 511. 512. 
»'. Paysen^er, i. 2(>4. 
V. People's Bank, ii. 49, 124, 145. 
V. Porter, iii. .3(i4. 
I'. Powers, iii. 457. 
r. Poyas, i. 14K. 
V. Pierce, ii. 275. 
V. Prewitt, iii. 455. 
r. Price, i. 11 ; iii. 410. 
c. Prince, ii. 195. 
1-. Provin, i. 40<i, 421, 438; ii. 71, 72, 

182, 25.5. 
r. Putnam, i. .504. 
r. Kaleifih, i 5(U1, 564. 
r. Keatl, iii 623. 
r. Pice. ii. 598. 599, 010. 
V. Pisley, ii 4'>1. 
I'. Holierts, i. 3ti3. 
V. Saekett. ii. 515. 
V. Shaekleford, iii. 455. 
r. Shaw, i i(32. 
V. Shepanl. ii. 142. 144. 
r. Shulcr, ii. 10.3, lO't. 
r. Simons, i. 493. 
r. Sloeomb, iii. 449, 450. 
V. Smith, i. 210. 222. 227, 298. .3.30. 

3:57. .382. 038; ii. 79. 123, IW; 

iii. 109. 
V. Snow. ii. 781 

V. So. lioyalton Bank, iii. 322. 
V. Sjiencer, i. 270. 



CXXIV 



TABLE OP CASES CITED. 



Smith I'. Sprague, iii. 505. 

V. Stanley, i. 230, 241, 245 ; ii. 
190. 

V. Starr, ii. 783. 

V. Steele, iii. 222. 

V. Stewart, i. 370, 627. 

V. Striihan, ii. 500, 508, 509, 513. 

V. Strong, iii. 102, 424, 487, 527. 

V. Surman, i. 13; iii. 364, 365, 367, 
369. 

V. Tarlton, i. 701. 

V. Taylor, ii. 142. 

V. Thackeraii, ii. 882. 

V. Uzzell, i. 455. 

V. Vincent, ii. 109, 133. 

r. Waggoner, i. 10, 26. 

V. Wells, i. 362, 407. 

V. Whitbeck, i. 512. 

V. Williams, iii. 347. 

V. Wilson, ii. 50. 

r. Wright, ii. 522. 

V. Yule, iii. 338. 
Smith's Appeal, ii. 760. 
Smitli Paper Co. v. Servin, i. 22. 
Smither v. Willock, ii. 598. 
Smitlmrst v. Edmunds, ii. 163. 
Smithwick r. Ellison, i. 20. 

V. Jordan, ii. 499. 
Smyles ;•. Hastings, ii. 396. 
Smyth V. Carlisle, iii. 3.54. 

V. Tankersley, i. 605. 
Snape v. Turton, ii. 697. 
Snavely v. Pickle, ii. 54. 
Snedecor r. Freeman, ii. 105. 
Snedeker v. Warring, i. 8, 23; ii. 163. 
Sneed v. Jenkins, i. 599. 

V. Osborn, iii. 96, 97. 
Sneider v. Heidelberger, i. 355, 366. 
Snell V. Iowa Homestead Co., iii. 511, 

530. 
Snively v. Luce. i. 719. 
Snoddy v. Kreutch, iii. 139. 
Snodgrass v. Ricketts, iii. 83, 89, 93. 
Snow V. Chapman, iii. 427. 

V. Orleans, iii. 294, 351. 

V. Parsons, ii. 367. 

V. Snow, iii. 13. 

I'. Stevens, i. 239, 241. 
Snowden v. Wilas, i. 663, 665, 669 ; ii. 

316. 
Snowman v. Harford, ii. 263. 
Snyder v. Jennings, iii. 511. 

V. Lane, iii. 495. 

V. Rilev, i. 548. 

V. Snyder, i. 308; iii. 24-3. 

V. Summers, ii. 218, 219, 220. 
Snyder's Appeal, ii. 499, 500, 765, 773. 
Socher's Appeal, ii. 525, 526. 
Society Prop. Gospel v. Hartland, il. 
478. 

V. Pawlet, iii. 149. 
Society Thenl. Ed. v. Attv.-Gen., ii. 29. 
Sohier r. Coffin, iii. .349, 350. 

V. Eldridge, i. 129. 



Sohier v. Mass. Gen. Hospital, iii. 226, 
227, 228, 229. 
i;. Trinity Church, i. 35 ; ii. 3 ; iii. 
230. 
Sollee V. Croft, ii. 570. 
Solms V. McCuUock, ii. 151. 
Solomon v. Vintner's Co., ii. 385. 

V. Wilson, ii. 43. 
Somers v. Pumphrev, i. 486 ; iii. 301, 
302, 303, 309. 
V. Schmidt, iii. 505. 
Somersworth Savings Bank v. Roberts, 

ii. 45. 
Somes v. Brewer, iii. 354, 359. 

V. Skinner, i. 484, 699; ii. 267, 573; 
iii. 105, 117, 119, 128,498. 
Soper V. Guernsey, ii. 69, 70. 
Souder v. Morrow, ii. 152; iii. 340. 
Soule V. Albee, ii. 158, 265. 
South i\ AUeine, iii. 565. 
South Berwick ?-. Huntress, iii. 255. 
Southbr. Sav. Bank v. Exeter Works, 
i. 10, 22, 26. 
V. Stevens Co., i. 10, 22. 
South Car. Bank v. Campbell, ii. 224. 

V. Mitchell, ii. 230. 
South Cong. Meeting-House v. Hilton, 

i. 479. 
South Metropolitan Cemetery Co. v. 

Eden, ii. 318. 
South Sea Co. v. Wymondsell, ii. 535. 
Southard v. N. J. Cent, R. R. Co., ii. 

16 ; iii. 658. 
Southcote V. Stowell, ii. 668, 700. 
Souther v. Wilson, ii. 252. 
Southerin v. Mendum, i. 553 ; ii. 102, 

123, 127, 132. 
Southern Life Ins., &c. Co. v. Cole, iii. 

312, 323. 
Southwick I'. Atlantic Ins. Co., ii 122. 
Soutter V. Porter, i. 688. 
Souverbve v. Arden, iii. 298, 303, 313, 

314, 3i5, 322, 358. 
Spader v. Lawler, ii. 56, 151, 159, 162. 
Spalding v. Shalmer, ii. 568, 574. 

V. Woodward, i. 715. 
Spangler v. Stanler, i. 203, 2.34, 497. 
Sparhawk v. Bagg, ii. 140, 177; iii. 352, 
435. 
V. Sparhawk, i. 320; iii. 540. 
V. Twichell, ii. 390. 
V. Wills, ii. 184, 234, 238. 
Sparks v. State Bank, i. 27 ; ii. 151, 

346. 
Sparrow v. Hovey, iii. 144. 

V. Kingman, i. 250; iii. 99, 101. 
Spaulding v. Chicago R. R., i. 157. 

V. Warren, i. 64 ; iii. 104. 
Spear r. Fuller, i. 510, 511. 
Speckels i\ Sax, i. 523. 
Speer v. Evans, ii. 153 ; iii. 335, 343. 

V. Speer, iii. 325, 326. 
Spence v. Steadman, ii. 55. 
i Spencer v. Carr, iii. 90, 309. 



TAHLK OF CASES CITKD. 



cxxv 



Spencer v. Gi'is«mnn, i. 307. 

V. Lewin, i. 14*J. 

I'. Miiiiboruuttli, ii. 720. 

17. SiKiKLT. i. 1H6; ii. "JIO, 220. 

I'. VViitiTiiian, ii. 222. 

f. Wi-st(in, i. 27S, ;!1H. 
Spencer's wise, i. uiil, <'>.'J2. I'i'M. 
Sperrv r. .Sperry, i- <>1'>, oHl ; li. II, 18. 
Spi^ieiier r. CooDer, iii. (12. 
Spiller r. ScriliiKT, iii. 81,424, 464, 46y. 
Spiinlle r. .Slireve, ii. 533. 
Spitts r Wells, i. 712. 
Spivii r. Jeter, i. 332. 
Spoon V. \'.iii Fosscn, i. 4.35. 
Sprnjrue r. Miiker. iii. 4l»l, 497, 607. 

V. giiimi, i.ijlit. 

I'. Snow, iii. 4tJ4, 472. 

V. Spnijriie, ii. 40G, 4(37. 

I'. U'ooils, ii, 457, 475, 470. 
Sprijrg r. Mt. IMeasant Bunk, ii. 64 ; iii. 

401. 
Spring c. Fiske, ii. 185. 
Sl)ringer r. Herrv, ii. 503. 

r. riiillips, ii. 2"J4. 
Sprinjjflelil '•. Miller, iii. 217. 
Sprouie f. I'oye, iii. 451. 
Spurjieon r. ('oilier, ii. GO. 
Spvve V. Toplmm, iii. 408. 
Squire v. ('aMipl)ell, ii. 327, 300. 

V. ConiptiMi, ii. 223, 224. 

V. Mu'lL'ett, i. 377. 
Squires i: Huff, i. (331. 643. 
St. Amour, &i;. .Sec Saint Amour, &c. 
Staats r. Ten Eyck, iii. 520. 
Stackjiole i\ .Vrnold, ii. 5.3. 

V. Uobhins, iii. 401. 
Staffor.l .-. Kliiott. i. 432. 

V. Lick. iii. 336. 

i;. Koof, i. 480, 488. 

V. Van Kcnsselaer, ii. 91. 
Stags? V. Kuroka Co., i 592. 
Stall r. Cincinnati, ii. 575.- 
Stambauiili r. Yeates, i. 12. 
Stamford Bank r. Benedict, ii. 228. 
Stamper r. (iriffln, iii. 174. 

r. Johnson, ii. 51. 
Standen r. (.'Iirismas, i. SOS, 639. 
Standish i-. Lawrence, ii. 2!>9, 387. 
Staniford r. Fullerton, i. 088. 
Stanley v. Colt. ii. 3. 538. 5»;7. 

r. Green, iii. 287, 314, 408, 427, 
42'J. 

V. Greenwood, i. 379. 

V. Hayes, iii. 5()7. 

V. Kempton, ii. 74, 120. 

V. Snyder, iii. 354. 
Stanly i-. Stocks, ii. 210. 
Stansbury v. Taggart, iii. 174. 
Stansell r. Uolverts, ii. 90, 151. 
Stansfield v. Habergham, ii. 678 

f. Mayor, &c., i. 4(JG. 

V. Port.<moutli, i. 34. 
Stantons r. Thompson, ii. 20.3. 
Stanwood r. Dunning, i. 228, 229. 



Staple r. Spring, i. 671. 
Staples V. Brown, i. 189. 

V. Dean, iii. 626, 627. 
Stark r. Brown, ii. 114. 

c. Collin, i. -M; iii. 461. 

V. Ilniiton. i. 334. 

f. MeCioweii, ii. 304. 

c. .Mercer, ii. 269. 
Starke r. Starke, ii. 536, 630. 

r. U'iition, ii. 636. 
Starr r. Kllis. ii. 198, 202, 602. 

r. Jackson, i. 020, 621. 

V. I'eaite, i. 201. 
State r. Alstead, ii. 390. 

t>. Arledge, iii. 203. 

V. Bonliam, i. 9. 

V. Brown, i. 95. 

V. ChrlMman, iii. 818. 

V. Crtitclifiel.l, iii. 202. 

i: Ciilvi-r. ii 3'.H5. 

V. Franklin Fails Co., ii. 3G9, 390 

V. Fry. i. 201. 

V. Giiniantun. iii. 436, 443. 

c. Glen. iii. 442. 

r. Godfrey, ii. 26. 

V. Jeiniiiijjs, iii. 294 

I'. Jersey City, iii. 440. 

t;. Laval, ii. 110, 172. 

i". Lawson, ii. 170. 

V. Meiogue, i. 370, 387, 419, 460. 

V. Moore, i. 139 ; ii. 406. 

V. Page, i. 407. 

v. I'eck, iii. 287,321. 

V. I'ottniever, i. 4; iii. 363. 

V. Uaglam'l, ii. 107. 

r. Koberta, ii. 390. 

«•. Smith, ii. 784. 

r. Throup, ii. 216. 

1-. Titus, ii. 215. 

V. Tolson, ii. 765, 768. 

V. Tra.sk, iii. 80. 

V. Wiiitbank, iii. 569. 
State Bank v. Evans, iii. 819, 321, 322. 

1-. Kcrcherd. i. 10, 23. 

V. Kercheval, ii. 163. 

IV Tweedy, ii. 128. 

State Reservation Commrs., Re, iii. 02 

Statham r. Bell. ii. 747. 

Steacv r Rice. ii. 540. 

Stearns r. Godfrev, i. (303 ; ii. 28. 

V. Harris, ii. "lO, 18. 

V. Hender.-tas", iii. 121. 

V. Samj)!ion, i. 057, (559. 

V. Swift, i. 257, 258 ; iii. 272. 
Stebbins r. Duncan, iii. 341. 

V. Hall, iii. 522. 

V Merritt, iii. 288. 

r. Miller, i. 421,459; ii. 183. 
I-. Morri", ii. 678. 
1-. Wolf. iii. 631. 
Stedmnn r. Fortune, i. 282. 
u. Gassett, i. 696, 018. 
r. Mcintosh, 1. 631. 
V. Smith, i. 692, 098 ; iii. 163. 



CXXVl 



TABLE OF CASES CITED. 



Steedman r. Hilliard, iii. 164. 
Steel r. Black, ii. 54. 

V. Cook, iii. 558. 

V. Frick, i. 604, 608. 

V. Johnson, iii. 158. 

V. Prickett, iii. 450. 

V. Smelting Co., iii. 88, 91. 

V. Steel, ii. 45, 147 ; iii. 325, 326, 
380. 
Steele v. Magie, i. 235. 

V. Mart, i. 469. 
Steele's Appeal, iii. 565. 
Steere v. Steere, ii. 547. 

V. Tiffany, ii. 360, 395, 396. 
Stegall l: Stegall, i. 253. 
Stein V. Burden, ii. 362 ; iii. 59. 

r. Hauck, ii. 365. 
Steinbach v. Stewart, iii. 287, 354. 
Steiner v. Coxe, iii. 205. 

V. Kolb, ii. 655. 
Stelle V. Carroll, i. 214. 
Stephen v. Beall, ii. 522, 523. 
Stephen's Appeal, ii. 91. 
Stephens v. Bridges, i. 586. 

V. Gerrard, iii. 536. 

V. Hume, i. 181, 182. 

V. Huss, iii. 306. 

V. Mansfield, iii. 73. 

V. Rinehart, iii. 306. 

V. Sherrod, i. 230 ; ii. 51. 

V. Stephens, ii. 749. 
Stephenson v. Haines, ii. 292. 

V. Osborn, i. 355. 

V. Thompson, ii. 619. 
Sterling v. Baldwin, iii. 367, 309. 

V. Penlington, i. 183. 

V. Warden, i. 659, 662, 663, 671. 
Sterry v. Arden, iii. 354, 355, 358. 
Stetson I.". Day, i. 160. 

V. Dow, iii. 108, 420, 460. 

V. O'Sullivan, ii. 33. 

V. Patten, iii. 294, 297. 
Stevens, Re, i. 32, 33. 

V. Buffalo R. K , i. 17. 

V. Cooper, ii. 135, 209, 211, 214. 

V. Dedham Sav. Inst., ii. 190, 259. 

V. Dennett, ii. 338, 339 ; iii. 88. 

V. Dewing, i. 88. 

V. Enders, i. 715. 

V. Hampton, iii. 334, 339, 341. 

V. Hollister, iii. 138, 161 

V. King, iii. 443. 

V. McNamara, iii. 83. 

V. Morse, iii. 338, 353. 

V. Myers, i. 435. 

V. Owen, 1. 219, 257. 

V. Patterson, &c. R. R., ii. 391. 

V. Reed, i. 288. 

V. Sampson, i. 645. 

V. Smith, i. 208, 233 ; iii. 199. 

j;. Stevens, i. 297, 360, 420. 663, 
666, 670, 673 ; ii. 506, 607. 

V. Taft, iii. 161, 171. 

V. Thompson, i. 697. 



Stevens v. Winship, i. 125, 126. 
Stevenson v. Black, ii. 125, 128. 

V. Glover, if. 783. 

V. Gray, i. 223. 

V. Jackson, i. 407. 

i\ Lambard, i. 552, 557. 

r. Maroney, i. 418. 

V. Wallace, ii. 381. 
Steward v. Harding, i. 640. 

V. Winters, i. 679. 
Stewart v. Apel, i. 477. 

V. Barrow, ii. 105. 

V. Brady, i. 86 ; ii. 9. 

V. Brand, i. 360, 436. 

V. Chadwick. i. 313 ; ii. 401, 524, 
572 

V. Crosbv, ii. 125, 133, 166, 168, 
179." 

V. Davis, ii. 253. 

V. Doughty, i. 11, 138, 140, 141, 
606 ; iii. 867. 

V. Drake, iii. 511. 

V. Fitch, iii. 445. 

V. Hutchins, ii. 58. 

V. Lispenard, iii. 547. 

V. Mackey, i. 426, 442, 443. 

V. McMartin, i. 313. 

V. McSweeney, iii. 238, 338, 339, 
352. 

r. Pettus, ii. 553, 567. 

V. Putnam, i. 570, 572. 

V. Roderick, i. 595. 

V. Rogers, iii. 357. 

V. Stewart, i. 266. 

V. Weed, iii. 305, 308, 313, 316. 
Stiewell V. Burdell, ii. 224. 
Stiles V. Brown, iii. 299, 322. 
Stilley V. Folger, i. 333. 
Stillman ;;. Pleumken, i. 28. 

V. Stillman, ii. 227. 

V. White Rock Manuf. Co., iii. 
171. 
Stillwell V. Doughty, i. 551. 

V. Knapper, ii. 10 ; iii. 18, 578. 
Stilwell V. Hubbard, iii. 311. 
Stimpson v. Butterman, i. 677. 

I'. Thomastown Bank, i. 247. 
Stinde v. Beiirens, i. 354. 
Stinebaugh v. Wisdom, i. 181. 
Stinson v. Richardson, i. 435. 

V. Ross, ii. 31. 

V. Sumner, i. 262, 266 ; iii. 530. 
Stipe V. Stipe, iii. 511. 
Stoakes i\ Barrett, ii. 405. 
Stobie V. Dills, i. 582. 
Stockbridge Iron Co. v. Hudson Iron 

Co., ii. 402 ; iii. 407, 408, 462, 466. 
Stockham i'. Browning, iii. 459. 
Stocking V. Fairchild, ii. 58. 
Stockton V. Martin, i. 107. 

t;. Williams, iii. 198, 199, 203, 2^5, 
351, 352. 
Stockton's Appeal, i. 652, 653 
Stockwell V. Campbell, i. 23, 30. 



TAHLK OF CASKS flTKI). 



CXXVll 



Stockwell c. Couillanl, lii. 4GI. 

/•. Hunter, i. lit, :u'. 
Stotlilanl r. CliaiiibtTB, iii. 204, 205. 

c. (jibbs, i. Ib^J. 

V. Mart, ii. 55, HU, 110, 111. 

r. I'owoll, iii. 5H. 

I'. Wiiitiiifr, ii. 01. 
Stoever r. Stoever, ii. 45. 
Stokes r. Mutciier, i. 410. 

i: MtKibhin, i. 173, 177, 000. 

r. I'liyiie, ii. "OH. 
Stokoe r. Singers, ii. 095. 

I'. Upton, i. ;]2. 
Stolp ('. lloyt, iii. 03, 437. 
Stone V. Ashley, ii. 475; iii. 201. 

r. AuKUsta, iii. 430. 

I'. Hale. i. 401». 

V. Hislioii, ii. 604. 

V. Boston Steel, &c. Co , iii. 460. 

V. Clark, iii. 453. 

V. Darnell, i. 420. 

V. Ellis, ii. 22. 

r. Griffin, ii. 555. 

V. Jaekson, i. 573. 

f. Laliey, i. GOO. 

V. Lane, ii. 157, 200. 

V. Montgomery, iii. 273. 

r. Myers, iii. 358. 

V. Patterson, i. 553 ; ii. 142. 

V. Proctor, i. 20. 

V. Spra«ue, i. 5<J0, 024, 632. 

V. Welling', ii. 151. 
Stonebrnker r. Zollicoffer, i. 137. 
Stoneiiewer r. Tlionipson, ii. IHI. 
St^ner «•. llunsicker, i. 28. 
Stones V. Maney, ii. 745, 705. 
Stoney v. Hank of Charleston, i. 205. 

V. Sliultz. ii. 212.215,235. 
Stoollbos V. Jenkins, i. lJ!'2. 
Stoppelbein c. Shulte, i. 210. 
Stoppelkanip v. Mangeot. i. G31. 
Storer v. Freeman, iii. 440, 447. 
Storm V. Mann, i. 107. 
Storrs r. Barker, iii. HI. 
Story I'. Elevated U. H., ii. 317, 327. 

V. Oilin, ii 355, 303. 

r. Saunders, i. 08'J. 
Stotesbury i-. Vail, i. 584. 
Stott c. Hutherford, i. 5!I3. 
Stoughton r. Leigh, i. U', 150, 151, 217, 

220, 285. 2'J5, 2!»7. 
Stout V. Keene. i. 648. 

V. Merrill, i. 5'J5. 
Stoutenburgh v. Moore, ii. 567, 717. 
Stover I'. Evcleshimer, ii. 770, 777 ; iii. 
102, 370. 

tr. Jack, iii. 01.441. 
Stow V. Lillie, i 440. 

r. Tifft, i. 230. 232. 237. 

V. Wyse. ii. 041 ; iii. 109, 110. 
Stowell v. Flagp, ii. 370. 

V. Lincoln, ii. 308, 398. 

r. Pike, ii. 110, 140. 
StraflTord v. Wentworth, i. 183. 



Straight r. Harris, ii. 221. 
.Strail r. Brown, il. 371, 377. 
Strang f. .Moog, ii. 105, 107. 
Straiton r. (iulil, ii. 07. 

r. .Staples, i. 571. 
Strauss's Appial, ii. 30, 88. 00. 
Strawii c. .Sirawn, iii. 124. 
Streaper tv Fisher, i. 527. 
Stricklanii v. Parker, i. 18, 23. 
Striikier «,'. Todd, i. 008; ii. 316, 334, 

335. 
Striker r. Mott, ii. 705. 
Strimpfler v. Roberts, ii. 617, 618, 635, 

644. 
Stringer r. Young, iii. 204, 205. 200. 
Strobe r. Downer, ii. 270. 
Strobel, A'x/«i)7., i. 441. 
."Strode r. Russell, ii. 140. 
Stroliecker v. Barnes, i. 522. 
Strong V. Blanchard, ii. 234, 2.'}8. 

V. Bragg, i. 314. 

V. Clem, i. 200, 318; ii. 43. 

17. Converse, i. 231, 239, 242, 243, 
ii. 117,201, 

V. Doyle, i. 21. 

V. Jackson, ii. 118, 125. 

r. .Manufacturers' Ins. Co., ii. 241. 

V. Shea, ii. 01. 
Stronghill r. Austey, ii. 708. 
Strother r. Law, ii. 73, 74, 77. 

V. Lucas, iii. 74, 204. 
Stroud V. Casey, ii. 209. 
Stroyan r Knowles, ii. 382. 
Stuart i: Baker, i. 719. 

r. Clark, i. 124; ii. 184; iii. 247, 
443. 

r. Ilutchins, ii. 111. 

V. Kissam, i. 341. 

I-. Walker, ii. 784. 

r. Wilder, i. 345. 
Stubblefield v. Graves, i. 387. 
Stubbs r. Parsons, i. 524. 
Stucker r. Stucker, ii. 207. 
Stucke}' V. Keefe, i. 343. 
Stukely v. Butler, i. 13. 
Stuitz i". Dickey, i. 144. 
Stump r. Findlay. i. 125. 

V. Jordan, ii. 0.'>4. 
Sturgeon r. Wingfield, i 484. 
Sturges r. Briilgman. ii. 330, 338, 339. 
Sturgess v. Cleveland, ii 155. 
Sturgion v. Dorothy Painter, i. 481. 
Sturgif r. Ewing, i. 195. 
Sturtevant v. Phelps, i. 302. 

V. Sturtevant, ii 544. 
Stuyvesant v. Dunham, iii. 173. 

V. Hall. ii. 154,211, 212,221. 

V. Hone, ii. 221. 

c. Mavor of New York, ii. 7, 12, 20 
Style r. Wardle, i. 470. 
Suarez v. Ptm)ptlly, ii. 651, 566. 
.Sucier r. Marsales. i. Oo^). 
Sudbury Parish i: .Tones, i. 6. 
Suffleld V. Baskervil, ii. 61. 



CXXTlll 



TABLE OF CASES CITED. 



Suffield (•. Brown, ii. 332. 

Suffolk Ins. Co. V. Bovden, ii. 241. 

Sullivan c. Barry, i. 4ii9; iii. 2(32. 

V. Enders, i. 621, 648. 

V. McLenans, i. 721 ; ii. 514. 

V. Ryan, ii. 330 

V. Sullivan, iii. 540. 

V. Winsluw, i. 419, 434, 450. 
Sullivan Granite Co. r. Gordon, iii, 457. 
Summers v. Babb, i. 301, 314. 

V. Bromlev, ii. 264. 

V. Donneli, i. 311. 

V. Kilgus, ii. 154. 
Sumner v. Bromilow, i. 38. 

V. Coleman, ii. 265. 

V. Conant, i. 259 ; iii. 273. 

V. Hampson, i. 299. 

V. I'artridge, i. 186, 276. 

V. Sawtelle, i. 374, 375 ; ii. 520, 576 

V. Stevens, iii. 72, 156, 174. 

V. Williams, iii. 390, 466, 468, 521, 
522. 
Sumwalt V. Tucker, ii. 107. 
Sunderland v. Sunderland, ii. 507, 511. 
Sunderlin v. Struthers, iii. 109, 127. 
Supervisors of Warren County, &c 

See Warren County, &c. 
Surman v. Surman, ii. 788 ; iii. 665. 
Sury V. Pigot, i. 63 ; ii. 340. 
Sussex V. Temple, ii. 664. 
Sussex Ins. Co. v. Woodruff, ii. 241. 
Sutherland v. Jackson, iii. 449. 
Sutliff V. Atwood, i. 526. 
Sutplien V. Cushman, ii. 53. 

V. Therkelson, ii. 331, 863, 364, 365. 
Sutter V. San Francisco, i. 689. 
Sutton v. Aiken, ii. 467, 472, 488, 500. 

V. Burrows, i. 316. 

V. Calhoun, iii. 236. 

V. Manby, i. 17. 

V. Mason, ii. 106. 

V. Temple, i. 575, 576. 

V. Warren, i. 223. 
Sutton First Parish v. Cole, i. 81 ; ii. 

434, 564 ; iii. 283. 
Suydam v. Bartle, ii. 259. 

V. Jackson, i. 523, 537. 

r. Jones, iii. 504. 
Swaine v. Perine, i. 181, 227, 242, 255, 

304, 309, 310, 331 ; ii. 223, 224. 
Swan V. Australian Co., iii. 255. 

V. Hammond, iii. 575. 

V. Hodges, iii. 299. 

I' Moore, iii 344. 

V. Stephens, i. 406, 452, 459. 

li! Stransham, i. 535. 

V. Wiswall, ii. 271. 
Swansborough v. Coventry, ii. 319,400. 
Swartz V. Leist, ii. 102, 121, 122, 128, 
199, 200. 

V. Swartz, i. 688; iii. 412, 414, 420. 
Swasey v. Brooks, iii. 479. 

r. Little, ii. 36, 294 ; iii. 565. 
Sweatt V. Corcoran, iii. 209, 210. 



Sweeney v. Garrett, i. 513. 
Sweet V. Brown, iii. 508. 

V. Harding, i. 514. 

I'. Parker, ii. 53. 
Sweetapple v. Bindon, i. 178, 236. 
Sweetser v. McKenney, i. 469. 
Sweetzer v. Jones, i. 10, 29. 
Swenson v. Kiehl, i. 301. 
Swetland v. Swetland, ii. 51, 53, 57, 63. 
Swett V. Sherman, ii. 203, 228. 
Swift V. Edson, ii. 252, 272. 

V. Gage, iii. 164. 

V. Kraeiner, i. 430 ; ii. 201. 

V. Mendell, ii. 254. 

V. Thompson, i. 28. 
Swigert v. Bank of Kentucky, ii. 229. 
Swiney v. Swiney, iii 311. 
Swinton v. Legare, ii. 599. 
Swisher r. Williams, iii. 352. 
Swords V. Edgar, i. 571. 
Svler V. Eckhart, iii. 248. 
Sylvester y. Ralston, i. 624, 627. 
Syme v. Sanders, i. 592, 599. 
Symes v. Hill, ii. 119, 127, 145. 
Symmes v. Drew, i. 319. 
Symonds v. Hall, i 609. 
Syracuse City Bank v. Tallman, ii. 106, 

110, 114, 143, 144, 145, 173. 
Syron v. Blakeman, i 663. 



Tabb V. Baird, ii. 473. 

Table Mountain Tunnel Co. v. Strana- 

han, ii. 406, 406, 407. 
Tabler v. Wiseman, i. 713, 715, 716. 
Tabor v. Grover, ii 148. 

V. Robinson, i. 29. 
Tadlock v. Eccles, i. 411, 442 ; ii. 263. 
Taft V. Kessel, ii 98. 

V. Stevens, ii. 145. 

V. Taft, ii. 698. 
Tainter v. Clark, ii. 553, 554, 555, 695, 
716,717; iii. 567. 

V. Cole, i. 492. 
Talbot V. Brodhill, ii. 239. 

V. Whipple, i. 32, 582. 
Taliaferro r. Burwell, i. 175. 

V. Gay, ii. 110. 

V. Pry, i. 447. 
Tallmadtre v. East River Bank, ii. 323, 
327. 

V. Tallmadge, i. 367. 
Tallman v. Coffin, i. 511, 632. 

V. Ely, ii. 114, 250. 

V. Snow, ii. 13,18. 
Tally r. Thompson, i 855. 
Taltarum's case, i. 101, 102, 103. 
Tanner v. Plicks, ii. 97. 

V. Hills, i. 604, 606. 
Tapley v. Tapley, iii. 276. 
Tapner v. Merlott, ii. 437. 
Tappan v. Burnham, iii. 138, 152, 210. 



TABLE OF CASES CITED. 



CXXIX 



Tappan r. DebluiH, iii. Gol, 654. 

«'. Kviiijs, ii. iJ.'j». 

V. Hfdtiol.l, lii. 2\)7. 

v. Th])I»iii, iii. 155. 
Tarbt'll r. liowinun, iii. 520. 
Tarplt'V r. Wiiniv, ii. 51.'>. 
Tarry c. Asliton, i. 571. 
Tartar v. Hall. iii. 111. 

V. Spring' Cri-ek. ^;c. Co., ii. 406. 
Taskcr r. Hartlott, iii. 2b8, U«y. 
Tate V. (^rtiwsoii, i. 512. 

V. Jay. i. 'J14. 

V. Suutlianl, iii. 455. 

V. Stooltzfoos, iii. 224. 
Tatein v. Cliaplin, i. 531. 
Taul i: Campl>ell, i. :i4:J. 700. 
Taunton v. Custar, i. G45, 055, 066. 
Tayloc r. (Jould, i. 183. 
Taylor r. Haili-v, i. 575. 

1-. Hal.hviii' i. 0!)7 ; ii. 'J3. 

1-. Bi.l.Uil, ii. 7.:iO. 

r. Blaki', i. 713. 

f. Huiilware, i. 357, 466, 461. 

c. Hoyil, iii. 232. 

V. IJroderiuk, i. 294. 

f. CalchvL'll, i. 475. 

I'. Chowniiijj, ii. 72. 

r. Cole, i. (i55. 

f). Cox, i. 07U. 

V. Dean, ii. 184. 253. 

r. Dickinson, ii. 600. 

r. Fickas, ii. 372. 

V. KowltT, i. 237. 

V. (j laser, iii. 287. 

r. Hampton, ii. 359, 398; iii. 69. 

V. HarKous, i. 384,401,429,447. 

V. Honle, iii. 1.J7, 142. 

V. Hunter, ii. '.t.j. 

V. Kelly, iii. 352. 

V. Kinji, iii 21t8, 3'.»1. 

I'. Lusk, i. 310. 

V. Maris, ii. 221. 

V. Mason, ii. 11, 12. 

V. McCrackin, i. 210, 304. 

V. MiKlvin, i. .XI. 

V. McLain, ii. .VJ. 

V. Morton, iii. 251. 

V. Mosely, ii. 507. 

V. <^wen, ii. 295, 300. 

V. I'aiie, ii. 25M. 

V. Porter, i. 70; ii. 181, 182; iii. 
224, 220. 

V. Robinson, iii. 329. 

r. Short, ii. 213. 

V. Shun'onl. iii. 464. 

V. Sluiin. i. 626. 

V. Steele, iii. 240, 4.'..1 

c. Sutton, ii. 8, it, 24. 

V. Taylor, i. 001. 004. <)07,008, 070; 
ii. 50, 0.55. 755. 707. 

V. Tuwnseml, ii. 130,320. 

V. Wfiil, ii. 47. 

r. Wliiteliead, ii. 365. 

t;. Zamira. i. 624. 
Vol.. I.— i 



Taylor's case, i. 24B. 
Tiall r. Ufwiil, i. 24. 
Tiaj{ue r. Downs, i. 100. 
T.al r. Walkir. ii. 60. 143. 
Tebi. V. Ho.lK'e, ii. 103. 
Tebbftts r. Filton, ii. 608. 
Tcetl r. ( "iirutlK-rs, ii. 96 
Tcilc '■. Hatliaway, ii. 592. 
Ti-lfonl r. Harney, ii. 5;{0. 
Teniplenian r. HidilU*. i. 144. 
Tenipleton »•. Vosldoe, ii. 378. 
Tenant v. (ioldwin. ii. 319, 888. 
Ti-nLick r. Vlmm, iii. 321. 
Ten Kyck r. Holmes, ii. 226. 
Temumt v. Sioney, i. 2(56. 
Tenney v. nianchard, ii. 272. 
Tenny r. Moody, ii. 401. 

I'. Tenny. i. 331. 
Ter Hovcn r. Kerns, ii. 159. 
Terliune r. Klinrson, iii. 410. 
Terrell r. Andrew County, iii. 339. 

r. Cunningham, ii. 054. 
Terrett v. Taylor, i. 78; iii. 119, 190, 

204, 478. 498. 
Terry v. Berry, i. 370. 

V. lJrijit;s, ii. 745, 703, 704, 772. 

I'. Chandler, iii. 95, W, 97, 131, 464. 

V. Ferguson, i. 591. 

V. Koscll, ii. 107. 

V. Wiggin, ii. 784. 

V. Woods, ii. 128. 
Teschemacher i'. Thompson, iii. 201, 

447. 
Tew r. .Jones, i. 024, 028. 
Tewksbury r. O'Connell, iii. 310. 

I'. .MagraO; i. 0(X>. 
Texira c. Kvans. iii. 2.>1. 
Thacher c Churchill, ii. 101, 167. 

r. riiinncy. iii. 291, ;i55. 
Thacker c. (iuardenier, iii. 109. 
Thallhimer r. Hinckerhoff, iii. 361. 
Tharp r. .Mien, i. ■■!02. 

c. Feltz, ii. 2.>8. 

V. Fleming, iii. 228. 
Thatcher r. Howlaiul, i. 257. 

c. Omans. i. 04, 344; ii. 424, 4;>t, 
449, 409; iii. 275. 

V. Powell, iii. 235. 237. 
Thayer c. Hacon, iii. 94, 95. 

V. Campbell, ii. 123. 207. 208. 

V. Clemence. iii. 479, VM), 491. 

r. Cramer, ii 110. 

r. .Mann, ii. 191, 193. 196,266. 

r. Pavne. ii. 333. 

I'. Hichards. ii. 70, 2,34. 

r. Uock. i. 11. 

V. Society of United Brethren, i. 
594."5{H3, (UK). 

V. Thayer, i. 2/'i(S. 

V. Wellington, iii 573. 
Thellusson >■. Woodford, ii. 739, 794. 
Thomas v. Boerner, iii. 212. 

f. Connell, i 6.3.5. 

V. Cook, i. 581. 683. 632. 045. 



cxxx 



TABLE OF CASES CITED. 



Thomas ;-•. Davis, i. 23. 
V. Dodge, i. 390. 
V. Farmers' Bank, ii. 91. 
V. Freeman, ii. 776. 
V. Gammel, i. 257. 
V. Garvan, i. 715. 
V. Harrow, iii. 168. 
V. Hatch, i. 689. 
V. Kelsey, ii. 157. 
V. McCormack. ii. 53. 
V. Marshall, iii! 208. 
V. Marshfield, ii. 284, 392 ; iii. 145, 

146, 217, 280. 
V. Nelson, i. 635. 
V. Patten, iii. 459. 
V. Pickering, i. 691. 
V. Poole, iii. 108, 502, 518. 
V. Sorrell. i. 662. 
V. Standifortl, ii. 510. 
V. Stone, ii. 151. 
V. Thomas, i. 225 ; ii. 373, 399 ; iii 

459. 
V. Torrey, ii. 220. 
V. Turvey, iii. 423. 
V. Vonkapff, i. 531 ; ii. 240. 
V. Walker, ii. 524. 
V. Wiggers, ii. 331. 
V. Williams, i. 455. 
V. Wood, i. 338. 
V. Wyatt, iii. 212. 
Thomas' Appeal, ii. 133, 156, 196. 
Thomaston Bank v. Stimpson, ii. 55. 
Tliompson v. Banks, iii. 412. 
V. Bostick, i. 695. 
V. Bower, i. 480. 
V. Boyd, i. 216, 243, 244, 249, 291, 

304. 
V. Chandler, ii. 118, 156, 181, 187, 

204. 
V. Clark, i. 592, 599. 
v. Cochran, i. 216. 
V. Colier, i. 292. 
V. Davenport, ii. 54, 65. 
V. Egbert, i. 336, 337, 338. 
V. Gilliland, ii. 559. 
V. Gould, iii. 249. 
V. Gregory, i. 666. 
V. Hey wood, i. 239; ii. 72, 202. 
V. Hoop, ii. 782. 
V. Hudson, ii. 79. 
V. Kauffelt, iii. 155. 
V. Kenyon, ii. 254, 256. 
V. Lav, i. 488. 
V. Leach, i. 486; ii. 636; iii. 26.3, 

301. 329. 
V. Lloyd, iii. 320, 573. 
V. Luildington, ii. 610. 
V. McGaw, i. 3.32. 
V. Merrill, iii. 125. 
V. Miner, ii. 327, 331. 
V. Morgan, ii. 56 ; iii. 346. 
V. Morrow, i. 298, 299, 300, 301. 
V. Rogers, i. 371. 
V. Sanborn, iii. 8.3. 



Thompson v. Sanders, iii. 503, 504. 

V. Shattuck, iii. 504. 

V. Stacy, i. 316. 

V. Thompson, i. 140, 214, 226, 2-36, 
246, 248 ; ii. 217 ; iii. 299, 326, 
391. 

V. Vinton, i. 2o ; ii. 107, 140. 

V. Waters, i. 81. 

V. Wheatley, ii. 524. 
Thompson Sch. Dist. v. Lynch, ii. 343, 

iii. 145. 
Thorns V. Thoms, i. 407, 439, 453. 
Thomson v. Gilliland, ii. 514. 

V. Peake, ii. 503. 

V. Waterlow, ii. 330. 
Thornborough v. Baker, ii. 148. 
Thornby v. Fleetwood, ii 724. 
Thorndike v. Barrett, iii. 217. 

V. Burrage, i. 523. 

V. Richards, iii. 216. 

V. Spear, i. 248. 
Thorne, Goods of, iii. 563. 

V. Newman, ii. 239. 

V. Thorne, i. 371, 382, 712 ; ii. 168. 
Thorneycroft v. Crockett, ii. 2.34, 239. 
Thornton v. Boydeu, i. 387, 432; ii. 82, 
85. 

V. Irwin, ii. 85. 

V. Knox, ii. 92, 95. 

V. Payne, i. 480. 

V. Pigg, ii. 170, 259, 266. 

V. Trammel!, ii. 2. 

V. Wood, ii. 145, 198. 

V. York Bank, i. 689. 
Thoroughgood's case, iii. 304, 317. 
Thorp V. Keokuk Coal Co., ii. 217, 219. 
220 ; iii. 293, 382, 379. 

V. Raymond, iii. 178. 
Thrale v. Cornwall, i. 526. 
Thrall v. Omaha H. Co., i. 500, 594. 

V. Spencer, ii. 226. 
Thrasher v. Pinckard, i. 286, -301. 

V. Tyack, i. 293. 
Throckmorton v. Price, ii. 153. 
Throp V. Johnson, ii. 15. 
Thruston v. Masterson, i. 720. 
Thunder r. Belcher, i. 652. 
Thurber v. Dwyer, i. 630, 6-35, 641. 

V. Townshend, i. 172, 200. 
Thurman v. Cameron, iii. 295, 334, 346, 
351. 

V. Cooper, iii. 467. 

V. Morrison, iii. 442 
Thursby v. Plant, i. 525, 526, 527, 535, 

5.36, 552, 582 
Thurston v. Dickinson, i. 686 ; ii. 586. 

V. Hancock, ii. 381, 382. 

r. Maddocks, i. 373, 382. 
Tibbals r. .Jacobs, iii. 315. 
Tibbetts V. Estes, iii. 451. 

r. Percy, i. 523. 
Tibeau r. Tibeau, ii. 53. 
Tice V. Annin, ii. 171. 
Tichenor i'. Dodd, ii. 218. 



TAIILK (JF CASES CITED. 



CXXXl 



Tickle I'. Urowii, ii :5;51». .'UO, 342. 
TiiM i: CJuiiui, i. :Wl. 40l». 
Tidey /•. Molk-tt, i. ia'd. 
Tieinuti v. riiiiiim, i. 412. 
Ticrniin <'. Iliiiiiian, li. U7, 186. 

r. Tliurmiiii, ii. '.'2. 
Tiin >'. llorton, i. 10. 20. 
TiUlen r. TiMon, iii. 53J>. 
Tilfonl v. FlfUiini;, i 548. 

r. TDrrov, ii. '>10. 
Tilt,'liiimti r. Littlf. i. .V.»4, 51M). 
Tilliiiglia.st c. HriKlfortl, ii. M'd. 

c. Clitiniplin, i. TOi. 

I'. CoKnoslmll, j. 174; ii. 520, 5;J1, 
G57. 
Tillman c. Cowanil, iii. -V-VJ. 
TilliiK'S I'. Miirsli, iii. 21'.l. 
Tillotson r. HdviI, iii. fy2.i. 

V. Milliml.'i. 3t)2, ;J74, 375, 391, 407, 
422. 4.")2 ; ii 17U 

17. rrt'stiin. i. 0()7. 
Tilson /' Thompson, i. 28(J; iii. 210. 
Tilton r. Knu'ry, iii. 121. 

/•. Iluntor, iii. ;138. 

1-. Nelson, iii. 8'J, iH. 
Timmins r. Uowlin.'^on, i. 040. 
Tinder i*. Diivis, i. f)o3. 
Tinicum Fishing Co. v. Carter, ii. 390; 

iii. 441. 
Tinkham v. Arnolil, ii. ;{31, 341. 
Tippett ('. Kyres, ii. tJ95. 
Tippin V. Coson, ii. 45((, 407. 
Tipping r Co/ens, ii. 4.')5. 
Tisdale v. Risk, i. 217. 

V. Tisdale, i. 721. 
Tisher r. Heokwurtli, iii. .'300, 305. 
Tison V. Yawn, i. ')'.il. 
Ti.sscn r. TisM-n, ii. 7^0, 787. 
Titeomh's Kstate, i. 307. 
Titley r. WoUtenholme, ii. 559. 
Titman v. .Moore, i. 403, 417, 448. 
Titsworth c. Stout, i. 720, 721. 
Titus c. Morse, iii. Nl, W, HI. 

V. Neilson, i. 210, 305, 306, 311 ; ii. 
174. 
Tobey r. McAllister, ii. 91, 95, 96. 

I'. Moore, ii. 25. .327. 

V. Secor, iii. 151. l.')2. 

V. Taunton, ii 321 ; iii. 4G0. 
Toby V. Heed, ii. 1 12. 
Tod r. Baylor, i. 2'.i2. .300, 301. 
Todd V. Campbell, ii. 54. 

r. Ilardie, ii. 03. 

r. Jackson, i. 050. 

f. Korr, iii. 78. 

r. Wicklitfc, iii. 275. 

V. Zachary, i. 343. 
Tolo r. H.irdy. iii. 580. 
Toleman r. I'ortburv. i. 514. 
Toll r. Ililler, ii. Un'j. 
Toll Bridge v. ().«boriie, i. 19. 
Tolle V. Orth. i. 051. 
Toiler 1'. Atwood, ii. 0.'2. 
Toilet V. Toilet, ii. 734. 



Tolman r. Enicnon, iii. 236. 

V. lA^'atherH. i. 419. 

V. Sparhawk, in. 71, 77, 84, bH, 
94. 
Tome r. Loan C'o., ii. -01. 
Tomlin v. Dubuque K K., ii. 391 ; iii 
442. 

r. Ililyard, i. 370, 418, 720. 
Tomlinson c. Dighton, ii. 028, 785. 

r. (ireenliel.l. ii. 103. 

r. .Mcintnouth Ins. Co., ii. 48, 01. 

('. Tomlinson, iii. 577. 
Tompkins, Kstate of, i. 38^1, 401, 429. 

r. Fonda, i. 314. 

r. .Mitchell, ii. 95. 

V. Wheeler, iii. 301. 317. 

r. Wiltlierger, ii. 212, 213. 
Tomson v. Ward, iii. 320. 
Tondro c Cushman, i. 592. 
Tone r. Brace, i. 519; iii. 523. 
Tong r. .Marvin, i. 172. 
Tongue '•. Nutwell, ii. 7i">.J; iii. 85. 
Took r. (Jlascock, i. .341. 
Tooku v. Il.irdeman, i. ;W0, 338. 
Toole V. Becket, i. 577. 

r. McKiernan, ii. 571. 
Tooley r. Dibble, iii. 320. 

r. Kane, iii. 231. 
Tooms V. Chandler, ii. 51. 
Tooniy I'. .McLean, i. 2.39, 245. 
Torr's Kstate, ii. 207. 
Torrane r. Boyd, i. 3.'i9. 

v. Conger, iii. 303. 
Torrence v. Carbry, i. 245. 
Torrey r. Cook, ii 71. 108. 175. 

i: Minor, i. 200, 314: iii. 498. 

r. Torrey, i. O.jO, ~(H]. 
Torriano v. Young, i. 1.j5. 
Tottin v. StuyvL'sant, i. 208. 
Touchard r. Crow, iii. ',]H\. 
Toulmin r. Austin, iii. ;J42. 394. 

V. Heidelberg, iii. 274. 
Tourville r. I'ierson. i. 370, 417, 117 
Tousley r. Tousley, ii. 150. 
Towar r. Hale, iii. 280. 
Towlc r. Ayer. i. 02. 

V. Uoit, ii. 180. 

I'. Swasey. i. ;J^14. 
Towne r. Ammidown, ii. 608. 

r. Buttertield, i. 593, 020. 

V. Fiske. i. 2'.t. .30. 
Townsend. lie, iii. 226. 

r. Albers, i. 045. 

r. Brown, iii. 202. 

I". Corning, iii. 295. 

r. McDonald, ii. 339. 

V. Morris, iii. r>(ll. 

V. Reeves, iii. 151. 

r. Townsend, i. Mi. 

r Wanl. ii. 21S. 

r. Wilson, ii. i'tt'u. 
Townsend Sav. Bank r. Todd, ii. Wi, 

119. 
Townshend v. Windham, ii. 689. 



cxxxu 



TABLE OF CASES CITED. 



Township No. 6 v. M'Farland, i. 622 ; 

iii. 137. 
Township No. 20, Trustees of, v. Hove}', 

i. 417. 
Township No. 24, Trustees of, v. Beale, 

i. 417. 
Township No. 33, Trustees of, r. 

Wright, ii. 91. 
Townson v. Tiokell, iii. 302, 579. 
Toy r. Boston Penny Sav. Bank, ii. 387. 
Tracy v. Atherton, ii. 345, 349 ; iii. 178. 

V. Hutchins, iii. 73. 

V. Jenks, iii. 346, 352. 

r. Kelley, ii. 509. 

V. Norwich & Wor. R. R., iii. IGl. 

V. Tracy, i. 167. 
Trafford v. Boelim, ii. 768. 
Trafton v. Hawes, ii. 470, 482 ; iii. 355, 

358, 377, 392, 396, 399. 
Traip r. Traip, iii. 101. 
Trammell v Tranimell, i. 6, 660 ; ii. 316. 
Transue v. Sell, iii. 449 
Trapnall v. Brown, ii. 50-5, 516, 547. 

V. State Bank, ii. 145. 
Trappes v. Meredith, ii. 533. 
Trash v. White, ii. 192. 
Trask v. Donoghue, ii. 552. 

V. Patterson, i. 340. 

V. Wiieeler, i. 500, 508. 
Trawick v. Harris, i. 455. 
Treadwell r. Marden, i. 655. 
Treat v. Bates, ii. 369. 

V. Pierce, ii. 253. 
Trent v. Banning, ii. 637. 

V. Hunt, ii. 144. 
Trenton Banking Co. v. Woodruff, i. 

341 ; ii. 199. 
Treon v Emerick, i. 688. 
Tress v. Savage, i. 632. 
Trevillian v. Andrew, i 653. 
Trevor v. Trevor, ii. 452. 
Tribble v. Anderson, i. 432. 

r. Frame, i. 659. 
Trimleston v. Hamill, ii. 235. 
Trimm v. Marsh, ii. Ill, 134, 169, 180. 
Trinity Church v. Higgins. i. 524. 
Tripe v. Marcy, ii. 105, 139, 189, 191, 

192. 
Tripp V. Hasceig, i. 11 ; iii. 416. 

V. Riley, i. 605. 

V. Vincent, ii. 51, 196. 
Tritt V. Colwell, i. 342. 
Trotter v. Cassady, iii. 148. 

V. Erwin, ii. 91. 

r. Hughes, ii. 219, 220 ; iii. 622. 
Trousdale ''. Darnell, i. 643. 
Trout V. McDonald, i. 489; ii. 374. 
Trowbridge, J., Opinion of, iii. 269. 
Trowbridge, Reading of, ii. 38, 105, 125, 

559. 
Trowell v. Castle, iii. 258. 
Trubee i-. Miller, i. 143. 
Trucks V Lindsey, ii. 53, 60. 
True V. Morrill, i. 380. 



Truebody v. Jacobson, ii. 91, 95. 
Truesdale v. Ford, iii. 337, 338. 
Trull V. Bigelow, iii. 344, 346, 360 

f. Eastman, ii. 300; iii. 118, 119, 
120, 121, 371, 508. 

V. Fuller, iii. 29.3, 384. 

V. Granger, i. 473, 475, 565. 

V. Skinner, ii. GO, 66 ; iii. 325. 
Trulock V. Robey, ii. 235. 
Truman v. Lore, iii. 286, 298, 346. 

V. Waters, i. 334. 
Truscott V. King, ii. 157, 159. 
Trussel v. Lewis, iii. 94. 
Trustees v. Beale, i. 417. 
Trustees of Columbia College, &c. See 

Columbia College, &c. 
Trustoe v. Yewre, iii. 130. 
Try on v. Munson, ii. 109, 115. 
Tubbs V. Richardson, i. 694. 
Tuck V. Fitts, i. 294. 
Tucker v. Bufium, i. 309 ;■ ii. 243. 

V. Clarke, iii. 119,526. 

V. Conwell, ii. 249. 

V. Coonev, iii. 493. 

V. Crowley, i. 244 ; ii. 203. 

1-. Fenno, ii. 254. 

y. Howard, ii. 350, 364. 

V. Keeler, ii. 106. 

V. Kenniston, i. 393, 409, 423. 

V. Moreland, i. 486, 488; iii. 264, 
267. 

V. Palmer, ii. 568. 

V. White, ii. 181. 
Tudor Ice Company v. Cunningham, ii. 

355 
Tuft V. Tuft, ii. 784. 
Tufts V. Adams, iii. 490, 491, 496, 507, 
529. 

V. Charlestown, iii. 108. 
Tulk V. Moxhay, ii. 299, 323. 
TuU V. Royston, iii. 492. 
Tully V. Davis, iii. 334. 
Tiinilinson v. Swinney, i. 367, 446. 
Turley v. Massengill, ii. 467, 479, 498. 
Turiy V. Rogers, i. 592. 
Turner r. Baker, iii. 95. 

V. Bouchell, ii. 80. 

V. Cameron, i. 23 ; ii. 144. 

V. Coffin, iii. 91. 

V. Doe, i. 616, 617, 620, 637. 

V. Eford, ii. 611. 

V. Field, iii. 291. 

V. Horner, ii. 97. 

V. Johnson, ii. 80. 

?j. Meymott, i. 655. 

V. Petigrew, ii. 524. 

V. Reynolds, iii. 415, 416. 

V. Scott, iii. 537. 

V. Stip, iii. 344. 

V. Thompson, ii. 364, 365. 

V. Watkins, ii. 107. 

V. Whidden, iii. 305, 316. 

V. Withers, iii. 562. 
Turney v. Chamberlain, iii. 144, 164 



TAP.l.K OF CASES CITED. 



CXXMll 



Turney v. SmitJi, i. 201. 21>». 
Tiirni|i8ce(l v. Cunriiiij;liam, ii. 03. 
Turnpike Co. c Stati-, ii. ',i\0. 
Turrill r. Nortliriip, ii. To-!. 
Tustin r. l-'iiu^jht, iii. l'N». 
Tiuliill r. 'rriuv, ii. -M 
Tuttlo r. Hiiin'i. OH. 

V. Lniic, ii. Kto. 

r. UayinAiU, i. rv.M. .VJ."], 032. 

r. \Vil8i)ii, i. 277, 27'J. 
Twainblv r. Henley, iii. 4.^2. 
Twe.l.l.-fl /•. Twe.ldell, ii. 208, 218. 
Twidiell I', nrid^e, ii. 252. 
Twiiiiii;; r. Morrice, ii. h'O. 
Twiiiiii^^'s A|ii>eai, ii. 4'Ji 
Twisdi'ii r. Lock, ii. 005. 
Twoiulily V. Cassidy, ii. 181. 
Twort V. Twort, i. t)'.(4. 
Twynam r. Tickard, i. 608, 529. 
Tyler v. Bennett, ii. JUG. 

c. Davis, iii. 'JS. 

V. llainniund, ii. 30'); iii. 418, 448. 

V. lleidorn, il. 280. 204, 205. 

V. Moore, ii. C5.3, 054 ; iii. 408, 409. 

V. Tavlor, ii. 140, 108. 

y. Wi'lkinson, i. 718; ii. 335, 340, 
.3t;H; iii. 58. 00. 
Tyner v. Fenner, i. GOO. 
Tyrone Sell. Directors v. Dunkleberger, 

ii. 573. 
Tyrrel's case, ii. 400. 491. 
Tyte V. Willis, ii. 773. 



u. 

L'fTord V. Wilkins. iii. 427. 
Uhler V. Iluteliinson, ii. 155. 

I'. Seiiiple, i. 701. 
Ulp V. Can)|)bell, i. 257. 
Uinbenliower c. Miller, ii. 54. 50. 
Underhill r. i^aratoga & Washington 

R. K.. ii. 7. 10. 24. 
Underwood r. Bireliard, i. 476, 521. 

V. Campbell, ii 476 ; iii. 247, 287. 

V. Carney, ii. 317, 3'.i2. 
Unfried i'. Ikborcr, iii. 78. 
Unger >: Lcitner, i. 217, 306. 
Union Bank v. Emerson, i. 25, 27. 
Union College, Trustees of, v. Wlieeler, 

ii. 258. 
Union Mut. Ins. Co. v. Campbell, iii. 

312. 
Union Mut. L. Ins. Co. v. White, ii. 82. 
Union Slate Co. r. Tilton. ii. 523. 
Unitarian Society v. Woodbury, ii. 547. 
United States i-. Amedy, ii. 4;i4. 

r. Appleton. ii. 310. 

f. Arredondo, ii. 11 ; iii. 211. 

r. Bostwiek, i. 523. 

r. Crosby, iii. 100. 640. 

V. Fitzgerald, iii. 213. 

c. Fo.x. iii. 548. 

V. llooe, ii. 167. 



I'nited States r. Iluekabec, iii. 277. 

r. Linn, iii. 'J6M. 

f. I'ereliman. iii. 'JOl. 
United States Bank v. Carrington, ii. 
512. 544 

V. Carntll, ii. 203. 

V. Covert, ii. I'-'H, 120. 

I . Duiiseth, i. 2'.i2. 

('. Ilousinan, ii. 445; iii. 401. 
University of Vermont v. Josslyn, i 

552 ; iii. 351. 
Updike c. Campbell, i. 400. 
rpliain v. V'arney, ii. 400, 4G1, 502, 

505. 
Upnian r. Second Ward Bank, i. 427. 
Upshaw V. Hargrove, ii. 03. 
Upton ('. Archer, iii. 255. 

r. Basset, iii. 3.')8. 

i\ Brazier, i. 000. 

r. (ireenlees, i. 501, 604. 

1'. So. Heading Bank, ii. 157, 10<3. 
Upwell I'. Halsey, ii. ~X~, 788. 
Urann i". Coates, ii. 576. 
Uridias v. Morrell, i. G48, G49. 
Urquliart v. Brayton, ii. 210. 
Usborne v. Usborne, ii. 141. 
L'slier V. Bichardson, i. 205. 
Utica Bank v. Finch, ii. 158. 

r. Mirsereau, i. 484, 485, 492. 
Utiey r. Smitti, ii. .50. 
Uvedall v. Uvedall, i. IGl ; ii. 018. 



V. 

Vai V. Weld, i. 600. 
Valcnline r. Havener, ii. 201. 

V. riper, iii. 50, 447, 448. 

V. Van Wagner, ii. 07. 
Valle r. Clemens, iii. 118, 618. 
Van Arsdale r. Van Arsdale, i. 3.30. 
Van Arsdall c. Fauntlerov, i. 181, 1S2. 

183. 
Van Brunt i*. Mismer, ii. 61. 
Van Buren v. Olmstead, ii. 2.34. 
Van Cott r. Heath, ii. 40. 
V^an Deusen v. Sweet, i. 480 ; iii. 2G3. 

V. Turner, iii. 4M. 

V. Young, ii. 002. 
Van Doren v. Kveriit, i. 144, 489. 

V. Todd. ii. 01. 
Van Duvne c Tliayre, i. 242, 304 ; ii. 

100. 
Van Duzer r. Van Duzer. i. 189. 
Van F.tta r. Kvenson. iii. 255. 
Van (iorden r. Jackson d. Bogardus, 

iii. 432, 4.'W. 
Van Hanswyck v. Wiese, iii. 637. 
Van Horn v. Chestnut, iii. 206. 
\'an Hoozer r. Cory. ii. ltJ.3. 
Van Home v. Campbell, ii. 784. 

c. Crain, i. 6-34. 

r. Dorrnnce. ii. 3, 11. 

t'. Emenon, ii. 621. 



CXXXIV 



TABLE OF CASES CITED. 



Van Home v. Fond.i, i. 720. 

Van Husan v. Kanouse, ii. 180, 247. 

Van Keuren v. Corkins, ii. 118. 

Van Kleeck v. Kef. Prot. DutchChurch, 

iii. 55'J, 5t50, 578. 
Van Ness v. Hvatt, ii. 171. 

V. Pacard.'i. 5, 30, 31, 144, 154. 
Van Nest v. Latson, ii. 205. 
Van Orden v. Jolinson, ii. 210. 

r. Van (_)rtlen, i. 334. 
Van Pelt v. McGraw, ii. 141. 
Van Rensselaer r. Ball, i. 502 ; ii. 6, 15. 

V. Bonesteel, ii. 291, 295, 2D7. 

r. Brad 163', i- 534. 

V. Chadwick, ii. 286, 302. 

V. Clark, iii. 344. 

V. Dennison, i. 69 ; ii. 294. 

V. Gallup, i. 548. 

V. Havs, i. 58, 59, 69, 472, 507, 527, 
528, 550, 551 ; ii. 286, 287, 288, 
290, 295, 300 ; iii. 200, 202. 

V. Jones, i. 5-34. 

V. Kearnev, i. 67 ; iii. 109, 115, 119, 
509. 

V. Pen ni man, i. 580, 685. 

V. Plainer, ii. 284, 290, 295. 

V. RadcliflF, ii. 403. 

V. Read, i. 531, 551 ; ii. 284, 285, 
288, 290, 291, 294, 295, 298; 
iii. 565. 

V. Slingerland, ii. 294. 

V. Smith, i. 69, 502, 523, 527, 528, 
529 ; ii. 286, 295. 

V. Van Rensselaer, i. 498. 
Van Rej'negan v. Revalk, i. 431. 
Van Santvvood v. Sandford, iii. 251. 
Van Schaick v. Third Avenue R. R. 

Co., iii. 3.32. 
Van Sickles v. Towne, i. 43-3. 
Van Svckle v. Kline, ii. -509. 
Van Vronker >: Eastman, i. 217, 308, 

309. 310 ; ii. 222. 
Van Wagenen v. Hopper, ii. 152. 
Van Wagner v. Van Nostrand, iii. 478, 
489, 493. 

I'. Van Wagner, ii. 47. 
Van Wicklen v. Paulson, i. 550. 
Van Wyck v. Seward, iii. 357. 
Van Wyck's Petition, ii. 553, 557. 
Vance v. Fore, iii. 422, 458. 

V. Johnson, i. .589; ii. 107. 

V. Vance, i. 203, 327, 828, 333. 
Vancourt v. Moore, iii. 329, 498. 
VandegraafE >\ Medlock, ii. 240. 
Vandenheuvel v. Storrs, i. 624, 628. 
Vanderhaize v. Hugues, ii. 45, 65. 
Vanderheyden v. Crandall, ii. 497, 803 ; 

iii. 14. 
Vanderkarr v. Vanderkarr, iii. 519. 
Vandcrkemp v. Shelton, ii. 118, 262, 

263, 264. 
Vanderpool v. Van Allen, i. 28. 
Van der Volgen v. Yates, ii. 455, 503. 
Vane v. Lord Barnard, i. 162. 



Vanmeter v. McFaddin, ii. 88. 

i\ Vanmeter, ii. 157. 
Vannice r. Bergen, ii. 205. 
Vansant v. Allmon, ii. 102, 108. 
Vanzant v. Vanzant, i. 370, 403, 432, 

448. 
Varick v. Edwards, ii. 753. 

V. Smith, iii. 224, 438. 
Varney v. Stevens, i. 132. 
Varnuni v. Abbot, i. 688. 

r. Meserve, ii. 73, 75 ; iii. 294. 
Vartie ?'. Underwood, i. 216. 
Vasey v. Trustees, i. 403, 449. 
Vasser v. Vasser, li. 53. 
Vatel V. Herner, i. 563. 
Vaughan v. Hancock, i. 11. 

V. Vanderstegen, ii. 689. 

V. Vaughan, iii. 539. 
Vaux V. Parke, ii. 5-33, 572. 
Veach v. Schaup, ii. 266. 
Veal V. Fortson, iii. 265. 
Veazie v. Dwinel, ii. 370, 371 ; iii. 442. 
Veghte V. Raritan Co., i 663, 669, 672. 
Venable r. Beauchamp, i. 720, 723. 
Vennum v. Babcock, ii. 65. 
Verges v. Giboney, ii. 200. 
Vermilya v. Austin, i, 564. 
Vermont v. Society, &c., ii. 13. 
Vernam v. Smith, i. 528, 631, 632, 691, 

592 ; iii. .523. 
Verner v. Winstanlej% ii. 63. 
Vernon v. Bethell, ii. 63, 65. 

V. Smith, ii. 240. 
Vernon's case, i. 284, 325, 326. 327 ; ii. 

461. 
Verplank v. Sterrv, iii. 303, 304, 354. 

V. Wright, i. 531, 532. 
Very v. Watkins, ii. 258, 259. 
Vetter's Appeal, i. 578. 
Vick V. Edwards, i. 682. 
Vickerie v. Buswell, ii. 347. 
Vickery v. Benson, iii. 70, 171. 
Vidal V. Girard, ii. 564; iii. 548, 66Q 

553, 554. 
Videau v. Griffin, iii. 297. 
Viele V. Judson, ii. 199. 
Villiers v. Villiers, ii. 537. 
Vimont r. Stitt, ii. 127. 
Vincent v. Bishop of Sodor, ii. 708. 

V. Spooner, i. 332. 
Viner v. Francis, ii. 599. 

V. Vaughn, i. 150. 
Vinton r. King, ii. 256. 
Virgie v. Stetson, iii. 261. 
Viser ik Rice, iii. 255. 
Voelckner i-. Hudson, i. 282. 
Vogle V. Ripper, ii. 194. 
Vogler V. Gciss, ii. 300, 395. 
Volentine v. Johnson, i. 695. 
Voorhees v. Presb. Ch., i. 344. 

V. McGinnis, i. 22, 24, 26, 27, 28 
Voorhies v. Burchard, iii. 413. 
Voorhis v. Freeman, i. 27. 
Vorebeck v. Roe, iii. 366. 



TABLE OF CASES CITED. 



cxxxv 



Voris r. Ui-niilmw, ii. 8. 

Vosl)ur^'ll r. 'IVator, iii. 05, 97. 131. 

Vose r. Dolun, iii. ->'>;{. 

r. llai.dy, ii. KH, 120. l.^^ 
Vret'laiiil i'. Jac-ohuH, i. -17, ;JiX5. 
Vroiiman r. McKiii^, i. (SyO, (350. 

V. Slit'phiril, iii. 174. 

V. Turner, ii. -10. 
Vynior's east.', iii. [>'.l'.K 
Vyse I'. Wnkefk'l'l, 1. 422. 
Vvvvan V. Arthur, i. 620, 527, 532; ii. 
2ltli. 



W. 

Wabash & Erie Canal Trustees v. Brett, 

i. 670. 
WaiMington r. Mristow, i. 12 ; iii. 307. 
Waiidy r. Johnson, ii. 870. 
Wade V. (ireeiiwood, ii. y2. 

c. H:(llij{aii, i 619. 

I'. Harper, ii. 85. 

V. Howard, i. 2:^8, 241 ; ii. 130, 133, 
IHO. 205, 381. 

V. Johnson, i. 28. 

V. Lindsev, iii. 117, 156, 351, 352. 

V. Wade, i. 378. 
Wadlei^h c. (iiines, iii. 125. 

r. Janvrin, i. 20, 25, 30. 
Wadsworth v. Loran^er, ii. 63. 

V. Wendell, iii. 287. 

1-. Wilhams, ii. 1:17, 201 ; iii. 365. 
Wailsvvorthville School i>. Meetze, i. 

597, H02. 
Wafer V. Moeato, ii. 23. 
Waffle V. N. V. Cent. it. R.,ii. 3G0. 
Waggoner v. Hastings, iii. 10(i. 
Wagner c Cleveland, &o. K. K. Co., i. 
154. 

V. White, i. 559. 
Wagstaff I". Lowerre, ii. 575. 
Wainscott r. Silvers, i. 575. 
Wainwright r. .McCullough, iii. 441. 
Wait c. Behlina, i. 91. 

V. Ma.\well,iii. 202,20.3. 

V. Wait, i. 25-1. 
Wakeniin v. Banks, ii. 109. 
Walbrun v. Ballen, iii. 151. 
Walcop V. Mclvinney, ii. 106. 
Walcutt r. Spencer, ii. 2.30. 
Walden v. Bodley, i. 610. 

r. Brown, ii. 183. 
Waldo V. Hall. i. 535. 
Waldron i". .*>andars, ii. 509. 
Wales V. CotBn, i. 7tJ0 ; iii. 78, 125. 

r. Mellen. ii. 70, 105, 116. 
Walker t'. Armstrong, ii. 306, 307. 

V. Barker, ii. 205. 

V. Boynton, iii. 461. 

I'. Crawford, iii. 154. 

I'. Cronin, ii. 375. 

V. Deavcr, iii. 491, 505. 611, 630. 

I?. Dement, ii. 128, 257. 



Walker.'. Eilidge, ii. 511. 

i: Fitts, i. 4;'.t, (Km. 

f. Kurhush, i. (S.i'.t, 045. 

r. Huinhert, i. Omj. 

V. King,ii. IfMl, lj;5. 17:], 180. 

c. Locke, ii. 4.'>9, 518. 

f. I'aine, ii. 15M. 

r. I'hysick, i. .')24. 

r. I'lihlic Works Bd., iii. 442. 

f. '^iiigg, ii. 704. 

f. Hichardson, i. 582, 684. 

r. Schuyler, i. 300. 

v. Sedgwick, ii. 95, 200; iii. 127. 

r. Sharpe, i. (541,<',42. 

V. Sherman, i. 22, 24, 28 

r. Thayer, ii. 105, 253. 

r. Walker, ii. 469, 671 ; iii. 800, 313, 
537. 

V. Williams, ii. 97. 
Walker's case, i. 159, 535. 650,552. 
Wall V. Goodenough, i. 698, 001. 

V. Hill, i. 24ti. 

I'. Hinds, i. 5. 29, 535, 5.')1. 57 I. r,9'.i. 

V. Mason, ii. 138. 

r. Wall. iii. 316. 
Wallace v. Berdell, iii. 312, 31.], DIG. 

r. Bowen, ii. 507: 

V. Dutlield, ii. 513, 524. 

r. Fee, iii. 4.52. 

V. Fletcher, ii. 845; iii. 57. 

I'. G(jodall, ii. 12;J. 

1-. Harmstad, i. 71, 472; ii. 284, 285, 
280, 287 ; iii. 260. 

V. Headley, i. 493. 

c. Kennelly. i. 682. 

r. Lent, i. 576. 

r. Lewis, i. 4b9 ; iii. 204, 205. 

V. McCullough, i. 478. 

V. Miner, iii. 110. 126. 

V. Vernon, i. 508 ; iii. 503. 
Waller >'. Tate. ii. 170. 

V. Von I'hiil, iii. 207. 
Wallerhouse c. Garrard, iii. 506. 
Walling r. Aiken, ii. 150. 
Wallinger r. Wallinger, ii 709. 
Wallis i: Harrison, i. 48y, 602, 004, 605, 
(■.ti7. 

V. Wallis, ii. 469 ; iii. 395, 390. 

V. Woodvear, ii. 230. 
Walls V. Baifd. ii. 196. 

r. I'reston, i. 605, 006; iii. 408. 
Wallwork c. Derby, iii. 251. 
Wallwvn I'. Coutts. ii. 492. 
Walmselev i'. Milne, i. 10. 16, 25, 27, 

2b ; ii. 16.3, 178. 
Walsh r. Horine, i. 418. 

r. Martin, ii 164. 

r. Keis. i 402. 

V. Wilson, i. 2.39. 

V. Voung. i. 340, 487. 
Walsinghanrs case, i. 94, 90. 
Walter r. Klock. ii. 614. 

r. post, i 604. 
Walters v. Jordan, i. 253. 



CXXXVl 



TABLE OF CASES CITED. 



Walters v. People, i. 370, 448. 

V. Pfeil, ii. 385. 
Walthall r. Rives, ii. 71, 177. 
Walton I'. Burton, iii. 312. 

V. Cody, ii. 80. 

V. Cronly, i. 525, 535, 554 ; ii. 64. 

V. Drew, ii. 767. 

V. Walton, iii. 574. 

V. Waterhouse, i. 537, 594. 

t'. Willis, i. 719. 
Wamesit P. Co. v. Allen, ii. 367. 
Wanmaker v. Van Buskirk, ii. 193. 
Warbass v. Armstrong, ii. 575. 
Ward V. Amory, ii. 537, 650. 

V. Ashbrook, iii. 511. 

V. Armstrong, ii. 545. 

V. Bartliolomew, iii. 156, 171, 216, 
296, 352. 

V. Bull, i. 566. 

V. Deering, ii. 63. 

V. Fuller, i. 64, 248 ; iii. 342. 

V. Hulm, i. 375. 

V. Kilpa trick, i. 25. 

V. Lewis, ii. 547, 568; iii. 312,317. 

V. Lumley, i. 580 ; iii. 326. 

V. Neal, ii. 365. 

V. Ross, iii. 312. 

V. Sharp, ii. 269. 

V. Stuart, iii. 248. 

V. Ward, ii. 356, 357, 396; iii. 69. 

i: Warren, ii. 338. 
Warden v. Fosdick, iii. 477. 
Warden v. Adams, ii. 120, 121. 

V. S. E. Railway, i. 81. 
Ware v. Bradford, iii. 242, 243. 

V. Brookhouse, iii. 456. 

V. Cann, ii. 9. 

V. Lithgow, iii. 511. 

V. Polhill, ii. 729. 

V. Richardson, ii. 501. 

I'. Washington, i. 203, 286. 
Waring, Ex parte, ii. 226. 

V. King, i. 625. 

V. Smythe, ii. 101, 134; iii. 259. 

V. Ward, ii. 218. 

V. Waring, ii 574. 
Wark V. Willard, iii. 119, 130, 344. 
Warley v. Warley, i. 129. 
Warman v. Faithfull, i. 480. 
Warn v. Brown, ii. 611. 
Warner v. Abbey, i. 608. 

V. Bates, ii. 550. 

V. Beach, iii. 576. 

V. Bennett, ii. 6, 13, 16, 22. 

V. Blakeman, ii. 82. 

V. Bull, iii. 327, 350. 

V. Crosby, i. 432. 

V. Everett, ii. 181. 

V. Hitchins, i. 567. 

V. Hoisington, i. 609. 

V. Howell, ii. 723. 

V. Southworth, iii. 452. 

V. Sprigg, ii, 435, 473, 499, 527, 651, 
652. 



Warner v. Van Alstyne, i. 217 ; ii. 93. 

V. Warner, iii. 572. 
Warnock v. Wightman, iii. 338. 
Warren r. Ba.xter, iii. 540. 

V. Blake, ii. 321, 333. 

V. Chambers, iii. 61, 66. 

V. Cochran, iii. 142. 

V. Coggswell, iii. 424. 

V. Homestead, ii. 102, 125, 126. 

V. Jacksonville, ii. 339. 

V. Leland, i. 16. 

V. Lovis, ii. 46, 47, 64. 

V. Lynch, iii. 252, 287, 288, 289, 290. 

V. Mayor of Lyons, ii. 4. 

V. Shuman, iii. 211. 

V. Thomaston, iii. 440. 

V. Twillev, i. 208. 

V. Warren, ii. 186, 230. 
Warren Co. v. Patterson, ii. 5. 
Wartenby v. Moran, ii. 200. 
Warter v. Hutcliinson, ii. 539. 
Warwick ?•. Bruce, iii. 367. 
Washabaugh v. Entriken, iii. 114. 
Washband v. Washband, iii. 356, 391. 
Washburn v. Burns, i. 710. 

V. Goodwin, ii. 170. 

V. Merrills, ii. 53. 

I'. Sproat, i. 5, 154, .346. 
Washington v. Conrad, i. 600. 

V. Trousdale, iii. 343. 
Washington Bank v. Hupp, ii. 143. 
Washington Bldg. Ass. v. Beaghen, iL 

230. 
Washington Ice Co. v. Shortall, i. 4; 
' iii. 443. 

Washington Park Commission, i. 70. 
Wass V. Bucknam, i. 181, 183, 188. 
Wassail V. Tunnah, i. 367. 
Wasson v. English, ii. 570. 
Waterman v. Andrews, iii. 422, 458. 

V. Curtis, ii. 245. 

V. Hunt, ii. 126, 128. 

V. Johnson, iii. 435, 448, 444, 445, 
453. 

V. Matteson, ii. 107, 141. 

V. Smith, iii. 210. 

V. Soper, i. 14. 
Waters r. Gooch, i. 293, 294. 

V. Groom, ii. 78. 

V. Lilley, ii. 313, 392. 

V. Randall, ii. 47, 63, 65, 67. 

V. Stewart, ii. 169, 170. 

V. Tazewell, ii. 10. 

IX Waters, ii. 200. 

t'. Young, i. 641. 
Waters' Appeal, iii. 83, 89. 
Watertown, Trustees of, v. Cowen, ii 

298, 326. 
Watkins, Matter of, i. 286. 

V. Eaton, i. 721. 

V. Edwards, iii. 336, 343. 

V. Gregorj', ii. 62. 

V. Hill, ii. 194. 

V. Holman, i. 92, 500; iii. 99, 230. 



TABLE OP CASES CITED. 



CXXXVll 



Walkins v. Peck. ii. ai6. 342, 345, 347, 
:iT.i ; iii. 68. 60, 86. 

V. Slockctt, ij. 6-'l. 
Watriss c. First Nat. Bank, i. 32. 
Watrous v. lllair. iii. 'AM. 

v. Southwortli. iii. 103. 
Watson r. Bioreii. ii. 317, 322. 

V. Clcmli'iiniii, i. -4:i. 

V. Crcdiloi'tt. i 068. 

17. Dickons, ii. 63, 100. 

r. Koxon, ii. GOo. 

V. Hill, i. f,l)y. 

V. lliiiikins, i. 520. 

I'. Hunter, i. 108. 

f. Hiitchina, ii. 123. 

V. Jc-ffrey, iii. 145. 

V. Mercer, i. 201 ; iii. 224, 228. 

V. O'Hcrn, i. 47U. 

V. IV'tcrti, ii. ."V.tl ; iii. 438. 

V. Sa.xer, i. 417. 

V. Thompson, ii. 612. 

V. Watson, i. 180, 187, 189. 287, 288, 
28'J. 
Watt i: Alvord, ii. 202. 

r. Core}', i. 254. 

V. Trapi), ii. 340, 344. 

V. Watt. ii. 181. 

V. Wright, ii. 189. 
Walters v. Breden, ii. 5 ; iii. 262, 422, 

4tV.». 
Watts i: Bail, i. 170, 173. 

V. Cortii), ii. 143. 

V. Goriion, i. .'jOO. 

I'. Kelson, ii. 330. 3:32. 

i>. Lepgett, i. 410. 

V. White, ii. 400. 
Waugh i: Kiley, ii. 198, 206. 
Way I'. Arnold, iii. 131. 

i: Keed, i. 500, 525, 682. 
Wead V. Gray, ii. 745, 703, 705, 784. 

V. Larkin, iii. 500, 532. 
Woalu I'. Lower, i. 78 ; ii. 447, 616, 006, 

000, 0'J7, 673 ; iii. 104. 
Wtatherby i: Smitii, ii. 210. 
Woathersley l-. Weatliersley, ii. 53, CO. 
Weaver c. Craigheaii. iii. U8. 

V. Crenshaw, i. 313. 

I'. Gregg, i. 201, 208,306. 

V. Leinian, ii. 535. 

V. Wihie, i. 721. 
Web V. Paternoster, i. 603. 
Webb V. Austin, iii. 101. 

V. Bird, ii. 338. 303, 366; iii. 59. 

t;. Cowley, i. 3(54. 

17. Davin, i. 307. 

I'. Flanders, ii. 133. 

V. Hearing, ii. 773. 

r. Hoselton, ii. 1 10. 

V. Maxan, ii. 201. 

V. Portland Co., ii. 3<58, 393. 

r. Uicbardson, iii. 151. 167. 

17. Roberts, iii. 242, 243, 804, 311. 

V. Robinson, ii. 92, 93, 97. 

r. Riusell, ii. 297. 



Webb V. Sadler, ii. 730. 

r. 'rhoui]i!<on, iii. 350. 

V. TowiiHend, i. 219. 

r. Webb. iii. 392. 423. 
Wiliber f. Kastern U U., iii. 421. 
Weber I'. Harbor Commissioners, ii. 391 ; 

iii. 445. 
Webster r. Boddington, ii. 793. 

V. Calef, i. 095. 

V. Cami.bell, i. 229, 232. 

V. Conley, i. 490. 

V. Cooper, ii. 12, 13, 10, 497,018, 
649, 652. 

17. Gihnan, iii. 580. 

i;. Nichols, i. 50ti. 

V. Potter, i. 5, 0; iii. 413. 

17. Stevens, ii. 317, 327, 386. 

i;. Vandeventer, i. 677. 079, 681, 
705 ; ii. 148, 202. 207. 658. 

V. Webster, i. 122, 135, 130, 137, 162, 
153; iii. 384. 
Webster Bank v. Kldridge, ii. 557, 716. 
Wedge V. Moore, i. 239, 240, 241, 244, 

249; ii. 201. 
Weed 1: Beebe, ii. 264. 

V. Crocker, i. 480. 

i: Weed, iii. 4(K3. 
Weed Sewing-Machine i-. Emerson, ii 

183. 
Weeks v. Eaton, ii. 122, 123. 
Weems v. McCaughan, iii. 520. 
Weetjen i-. St. Paul, ii. 164. 
Weeton V. Wuodcouk. i. 32, 33, 400. 
Wegg r. V'illers, ii. 674, (i^2. 
Weichselbauni i-. Curlett, i. 689. 
Weide v. Gehl, ii. 63. 
Weider 17. Clark, i. 434. 
Weidner r. Foster, ii. 143. 
Weigall I-. Waters, i. 509. 
Weimar r. Fath, ii. 716. 
Weiner r. Sterling, i. 429. 
Weir V. Tate, i. 182, 208, 220, 267, 

295. 
Weis V. Madison, ii. 807. 
Weisbrod v. Chicago & N. W. R. R., iiL 

274, 452. 
Weiser c. Weiser, i. 721. 
Weisinger r. Murphy, i. 188. 189, 691. 
Welborn v. Anderson, iii. 108. 
Welch I'. Adams, i. 595 ; ii. 142. 

V. Allen, ii. 497. 537. 

V. ,\nderson, i. 334. 

V. Buiicc, iii. 205 

V. Chandler, i. 182, 185. 

I'. Goodwin, ii. 125. 

I'. Phillips, iii. 433. 

V. Priest, ii. 105, 119, 122. 

i: Snckett, iii. 801. 

V. Welch, i. 342. 
Weld V. Nichols, ii. 298. 

V. Traip, i. 409. 
Welland Canal Co. v. Uathawny, iii 

72. 70. 80. 
Wellborn v. Williams, ii. 97. 



CXXXYlll 



TABLE OF CASES CITED. 



Weller v. Weller, i. 179, 273, 270, 373, 

405. 
Welles V. Castles, i. 537, 562, 566, 569, 
574, 576. 

V. Cowles, i. 20. 
Wellington v. Gale, iii. 242. 

V. Petitioners, iii. 223. 
Weilock V. Hammond, ii. 26. 
Wells V. Beall, i. 2s7. 

V. Banister, i. 5. 

V. Calnan, iii. 249. 

V. Chapman, i. 721, 

V. Doaiie, iii. 568. 

V. Heath, ii. 538, 539. 

V. Jackson Iron Mfg. Co., iii. 164, 
166, 167, 433, 458. 

V. Lewis, ii. 567. 

V. Mason, i. 519, 597. 

1-. jSIcCall, ii. 540. 

V. Morrow, ii. 52; iii. 844. 

V. Morse, ii. 189. 

V. Pierce, iii. 85. 

V. Prince, i. 715; iii. 142. 

r. Robinson, ii. 515. 

V. Seixas, iii 266. 

v. Thompson, i. 182. 
Welp V. Gunther, ii. 276. 
Welsh V. Beers, ii. 215, 216. 

V. Buckins, i. 234. 

V. Foster, ii. 445, 451, 484 ; iii. 395, 
396. 

V. Phillips, ii. 105, 119, 120, 122, 202. 

V. Usher, ii. 89. 
Welton V. Divine, ii. 419, 506. 
Wendell v. Crandall, ii. 603. 
Wentworth v. Portsmouth & D. R. R. 

Co., i. 610. 
Wentz's Appeal, i. 133. 
Wenzler v. McCotter, i. 571. 
Werner v. Ropiequet, i. 516. 
Wescott v. Delano, i. 15, 671. 
Wesson v. Stevens, iii. 306. 
West V. Berney, ii. 695. 

V. Chamberlin, ii. 252. 

i: Fitz, ii. 538, 557, 716. 

V. Hendrix, ii. 52, 62, 63. 

V. Hughes, iii. 211. 

V. Stewart, i. 7 ; iii. 489, 506. 

V. Ward, i. 381. 
Westbrook Mfg. Co. v. Warren, ii. 367, 

894. 
West Cambridge v. Lexington, i. 222. 
Westcott V. Campbell, i. 299. 
Westerfield v. Kimmer, ii. 509, 510, 

511. 
Westerman v. Westerman, i. 351 ; ii. 97. 
Western r. McDermott, ii. 327. 
Western Bank v. Kyle, i. 510. 
Western R. R. Corp. v. Babcock, iii. 

305, 316. 
Western Transportation Co. v. Lansing, 

i. 471, 5.32. 
Wester velt v. Raff, i. 715. 
Westfall V. Hunt, ii. 348. 



Westfall V. Lee, i. 258. 
Westgate v. Nixon, i. 7. 
Westlake v. De Graw, i. 576. 

V. Horton, ii. 5.3. 
Westminster Bank v. Whyte, ii. 45, 53 
Weston V. Alden, ii. 368. 

V. Hunt, i. 78. 

V. Weston, i. 27, 28; ii. 588. 
West Point Iron Co. v. Reymert, iii. 

462, 473. 
West Kiver Bridge Co. t-. Dix, ii. 808. 
West Roxbury v. Stoddard, i. 4 ; iii. 

216, 443. 
West Shoreham v. Bail, ii. 348. 
Wetiierbee v. Bennett, iii. 530. 

V. Ellison, i. 20; iii. 417. 
Wetherell, Er parte, ii. 88. 
Wetmore v. Brooklyn Gas Co., ii. 392. 

V. Law, iii. 452. 

V. White, iii. 247. 
Wetter v. Walker, ii. 721. 
Wetz V. Beard, i. 451. 
Weyand v. Tipton, iii. 235, 242. 
Weymouth v. Sanborn, i. 423. 
Whalen v. Cadman, i. 360. 

V. Gloucester, i. 571. 
Whaley v. Whaley, i. 604; ii. 518. 
Whalin V. White, i. 595 ; ii. 249. 
Whahng Co. r. Borden, i. 702. 
Whalley v. Small, ii. 153; iii. 145, 343. 

V. Tompson, iii. 411. 
Wharf I'. Howell, ii 49. 
Wharton v. Leggett, i. 364, 410. 

V. Wharton, i. 113. 
Wiiatman r. Gibson, ii. 323; iii. 128. 
Wheatley v. Baugh, ii. 341, 371, 376, 
378. 

V. Calhoun, i. 211, 232. 

V. Chrisman, i. 668. 
Wlieaton v. East, i. 487, 489 ; iii. 264, 
265. 

V. Peters, i. 40. 
Wheeldon v. Burrows, ii. 332, 333, 364. 
Wheeler v. Bates, iii. 144. 

V. Clutterbuck, iii. 19. 

V. Crawford, i. 576. 

V. Dascorab, i. 511. 

V. Earle, i. 509. 

t'. Feilowes, ii. 760. 

V. Hotchkiss, i. 190. 

V. Kidder, ii. 606. 

t'. Montefiore, i. 473. 

V. Moody, iii. 148. 

V. Morris, i. 262 ; ii. 266. 

V. Newton, i. 477. 

V. Single, iii. 252, 298, 304. 

V. Sohier, iii. 503, 505. 

V. Spinola, iii. 151, 444, 445. 

V. Walker, ii. 4, 7, 17, 28. 

V. Willard, ii. 186. 
Wheelock v. Henshaw, iii. 120. 

V. Moulton, iii. 278. 

V. Thayer, iii. 488. 

V, Warschauer, i. 695. 



TAllLK OF CASES CITED. 



CXXXIX 



WhcehvriRlit i-. De Poygtcr. ii. 221. 

V. VVhi'i-lwriKht. iii. ;jO«i. [i\'J. 
Wlielpil:ili''H lUM-, iii. oil). 
Whetstone r. lUin-, ii. 177. 

V. Davis, i. lUio. 
Whilden v. Wliil.leii. i ;i;]l. 
W'liiplev r. I)i-wev. i. .'5."l. 
Wliipple r. Knir^hii.l, ii. Oil, 012, 040. 

r. Foot, i. 12: iii. ."tfj. 
WhitiikiT r. Urowii. iii. UV.]. 405. 

r. HhwIcv. i. 40:{. oOH, 578. 

V. SiimiuT, iii. 24n. 

f. Wiiitl.iker, i. 118. 

i: Wiiliiuim, iii HH. 
\Vhitl)e.-k r. Cook, iii. 4^8, 4'J3. 
Whitbred. /•> /"i»7.,ii. 87. 
Wliitcoml) V. Heitl. i. 11)7. 

r. Tiivlor, i. 30; ii. 5"J0, 764, 707, 
7tJH. 
White V. Alhertson, ii. 673. 

V. Anidt, i. .'12. 

r. Bailey, iii. •121. 

r. Baas, ii. ;].J2. 

I'. Bradley, ii. .'305. 

V. Brocaw, iii. 122, 608. 

V. Brown, ii. 240. 

r. Burnley, iii. 106. 

V. Carpenter, ii. 413, 517. 

V. Clark, i. 41M, 447. 44'^. 

I'. Collins, i. lOo ; ii. 053. 

V. Crawtord. ii. 356, 350, 3'JG. 

V. Cutler, i. 130. 

I'. Cuyler, iii. 2!H. 

V. Dennian, ii. 151. 152. 

V. Dou^'herty, ii. 95. 

V. Dresser, ii. 381, ;)'.»4. 

V. Ehvell, i. ((13, 071. 

r. Fitzgerald, ii. 547. 

i'. Flannigain, iii. 450. 

v. Foster, iii. 348. 3i>(J, 370, 473. 

V. Fuller, i. 472 ; iii. 350. 

i*. Godfrey, iii. 44'.<, 452. 

V. Graves, iii. ."JOO. 

r. Hampton, ii. 202, 553, 656 

V. Hicks, ii. 713, 714, 721. 

V. Huhne. i. 342 

V. Hunt, i. 564. 

V. Livingston, i. 480, 622. 

r. Maynard, i. 480. 

V. Molyneau.x, i. 500. 

V. Moses, iii. 222. 

r. Owen, i. 440. 

i;. Patten, i. 484 ; iii. 104, 117, ll'.i. 
128, 4ys. 

V. Plmnrncr, i. 432. 

V. Polleys. i. 428 ; ii. 220, 2:30. 

I'. Rice. i. 401), 421, 438. 

r. Ritteninver, ii 112. 147, 105, 
107. 272. 

V. Rowland, ii. 407, 472. 

V. Savre, i. 688. 

V. Shepperd, i. 412 ; ii. 519. 

V. Story, i. 2!»0. 

V. Stovvr, ii. 97. 



White r. Tliomnn. ii. 0. 

r. Wntts. li. I'Ol. 

V. Wear, ii 100. 

V. Weeks, iii. 393. 

I. White, i 2<iO, 335; ii. 633; iii. 
5.3, 4(XJ, 407. 

f. Whitney, ii 108. 107. 100, 170; 
ill. [m. 503, 507, 533. 

r. Wieland, i. 622. 

r. Williams, ii. 95, 97 ; iii. 431. 

r. Wilhs. i. 1M9. 

I'. Woodlierry, i. 80. 
Wliite's Appeal, V 31. 
White's Bank r Nichols, ii. 300, 306. 
Whiteacre r. Symonds, i. 0.'30. 
Whitehead c. ClitTonl, i. 583. 

r. Conkliii, i. 300. 

I'. Cummins, i. 207. 

V. Lane & Bodlev Co.. ii. 108. 

V. Middleton. i. 237, .•];{3. 

r. Tajp, i. .■]02. 
Wiiite liiver Turnpike Co. v. Vt. Cent. 

R. K.. ii. 30H. 
Whiteman r. Field, i. 450. 
White Water Canal r. Comegvs, i. 107. 
Whithed r. Mallory. i. 2*20. 
Whiting I'. Beehe, ii. 145. 

c. Brastnw, i. 31. 

V. Dewey, iii. 4i'5, 458. 627. 

I'. Kdmiuid!.. iii. 98, 09. 

r. Gould, ii. 514. 

c. New Haven, ii. 109, 172. 

r. Stevens, iii. 273. 

(• Whiting, iii. 170. 
Whitluck's cnse, i. 550. 
Whitmarsh i-. Cutting, i. 140, 141. 

V. Walker, i. i:3, 071 ; iii. 304, 300, 
308. 
Whitmore <•. Delano, iii. 274. 

1-. Learned, ii. 618. 

V. Weld, i. 107. 
Whitney v. Alhiire, i. 409, 474, 476, 
481 ; iii. 477, 626. 

V. Allen, ii. 173. 

V. Buckman. ii. 44, 49. 

f. Dart, i. 0.53. 

V. Dinsinore, iii. 490. 491, 490. 

r. Dutch, i. 4Hl; iii, L'G4. 

r. Frenc;h. ii. 38, 101. 

r. Gordon, i. ('>39. 

r. Holmes, iii 95. 

r. Lee. ii. 317, 322. 

r. .McKinney. ii 269. 

V. Me vers. i'. 581, 045. 

r. OIney. iii. 412, 418, 420. 

('. Smith, iii. 454. 

V. Spencer, ii. 11. 

r. Union R. R. Co, ii. 324. 

r. Whitnev. iii. 14, 678. 
Whitsel! r. Miils. i. 2.54. 
Whittaker c Perry, i. 060. 
Whittemore r. (lihlis, ii. 127. 

V. Moore, i. <>3<>. 
Wliilten IV Peacock, I. 503. 



cxl 



TABLE OF CASES CITED. 



Whitten v. Wliitten, i. 712, 715. 
Whittenberg v. Lloyd, i. 379. 
Wliitter V. Breinridge, ii. 779. 
"Whittier v. Cocheco Mfg. Co., ii. 344, 

372, 398. 
WhittingtQD V. Flint, iii. 154. 

V. Wright, iii. 138, 338. 
Whittlesey v. Fuller, i. 343, 348, 709. 

IK Hughes, ii. 83. 
Whitton V. Whitton, i. 688, 689; iii. 

277. 
Whitwell r. Harris, i. 601. 
Whitworth v. Gaugain, ii. 87. 
Wiiyddon's case, iii. 317. 
Wickersham v. Irwin, i. 535. 

V. Orr, i. 669 ; iii. 471. 

V. Beeves, ii. 205. 

V. Savage, ii. 722. 
Wickes V. Caulk, iii. 259. 
Wickham v. Hawker, i. 665. 
Wickman v. Robinson, ii. 98. 
Wicks r. Smith, i. 436. 
Widger v. Browning, i. 642. 
Wier's Appeal, ii. 381. 
Wiggin V. Chance, i. 418, 448, 449. 

V. Hey ward, ii. 75. 

V. Swett, i. 134. 

V. Wiggin, i. 628. 
Wiggins V. Holley, iii. 139. 

V. McCleary, ii. 321. 
Wigglesworth v. Dallison, i. 144. 
Wight V. Shaw, ii. 599; iii. 104, 107, 
121, 124, 125, 508. 

V. Shelby R. R., iii. 318. 

V. Thayer, i. 114. 
Wilbrahara v. Snow, i. 694. 
Wilbridge v. Case, i. 712. 
Wilbur V. Alnij", ii. 566. 
Wilburn v. Spofford, ii. 73. 
Wilcox V. Allen, ii. 68. 

V. Bates, ii. 54. 

V. Jackson, iii. 199, 204. 

V. Lewis, iii. 408. 

V. Morris, ii. 45. 

V. Randall, i. 209. 

V. Todd, ii. 224. 

V. Wheeler, i. 90 ; ii. 474, 539. 

V. Wilcox, i. 704. 
Wilcoxon V. McGhee, iii. 412. 

r. Osborn, iii. 99. 
Wild V. Deig, iii. 22.5. 

V. Serpel, i. 594, 596, 602. 
Wild's case, iii. 515, 536. 
Wilde V. Armsby, iii. 259. 

V. Minsterley, ii. 381. 
Wilder v. Brooks, i. 344. 

V. Houghton, ii. 106, 143, 173. 

V. Ramsay, ii. 715. 

V. St. Paul's, ii. 396. 

V. Wheeldon, ii. 398. 

V. Whittemor^, ii. 70. 
Wildey v. Bonney, i. 711. 
Wiley V. Hunter, ii. 369, 393; iii. 151. 

V. Moor, iii. 255. 



Wilgus V. Gittings, i. 26. 
Wilhelni v. Folmer, ii. 530. 

V. Lee, ii. 108. 
Wilhelmi v. Leonard, ii. 202. 
Wilhite V. Hamrick, iii. 78. 
Wilkes V. Lion, ii. 586, 593. 
Wilkins v. French, ii. 146, 147, 169. 

V. May, iii. 335. 

V. Perrat, ii. 455. 

V. Sears, ii. 63. 

v. Vashbinder, iii. 416. 

V. Wells, iii. 291. 

V. Wingate, i. 591. 
Wilkinson v. Davis, iii. 423. 

V. Flowers, ii. 106, 139, 175, 193. 

V. Getty, ii. 733 ; iii. 274, 296. 

V. Hall, i. 699. 

V. Leland, iii. 204, 223, 226, 230, 
579 

V. Lindgren, iii. 551, 570. 

V. Malin, ii. 567. 

V. Parish, i. 208. 

V. Proud, i. 19. 

V. Scott, ii. 420 ; iii. 102, 399. 

V. Wilkinson, ii. 524. 
Wilks V. Back, iii. 294. 

V. Burns, ii. 707. 
Willard v. Eastham, iii. 268. 

V. Harvev, ii. 145, 180. 

V. Henry^ ii. 13, 18. 

V. Reas, ii. 96. 

V. Tillman, i. 528, 529, 550, 551; ii. 
298. 

V. Twitchell, iii. 482, 483. 

V. Ware, ii. 713. 

V. Warren, i. 657. 
Willet r. Beatty, i. 216, 306, 307. 
Willett V. Brown, i. 210, 703. 

V. Winnell, ii. 65, 67. 
Willetts V Burgess, ii. 65. 
Willey V. Connor, i. 524. 

V. Haley, i. 118. 
Williams, Ex parte, ii. 707. 

V. Angell, ii. 14, 22, 688, 657. 

V. Baker, iii. 77, 124, 347, 350. 

V. Bemis, i. 522. 

V. Birbeck, ii. 121, 154. 

V. Bolton, i. 161. 

V. Bosanquet, i. 475, 499, 553. 

V. Boston Water Power Co., ii. 321 ; 
iii. 460. 

V. Bowden, i. 415. 

V. Brown, ii. 514. 

V. Burg, iii. 533. 

V. Burrell, i. 519, 630, 535, 665. 

V. Carle, i. 135. 

V. Cash, iii. 107. 

V. Caston, i. 1-32. 

V. Champion, iii. 87. 

V. Cowden, ii. 10 

V. Crutcher, iii. 256. 

V. Dakin, ii. 22. 

V. Davis, iii. 357. 

V. Deriar, i. 634, 635. 



TAHLK OP CASES CITED. 



cxli 



Willinms c Karlo, i. W'). 

c. Kast liidiii Co , iii. 'Jl'*J. 

I'. First I'resli. Soc, ii. 030. 

i>. Fowlo, ii. 'J71. 

V, Fuliorton, ii. ij;>0. 

V. (Jarrison, i. f)'.»'.>. 

i- Gilbert, ii. ltl"2. 

V. Groeii, iii. 317. 

V. Groucott, i. H>. 

V. Hall, i. ;{7S. 

V. Ilayward, i. 6*J0, 661. 

V. IK'iisii'y, i. 032. 

V. lliuliljoriie, i. 118. 

V. Hi^'J;in.s, iii. 175. 

V. Hilton, ii. nil, -JIO. 

V. llolliii(,'s\vortli, ii. 613. 

V. Jackson, ii. 15i. 

V. James, ii 361. 

V. JoiKs, i 418. 

V. Miller, iii. 106. 

I'. Murland, ii. 370. 

I'. Morris, i. 008, 071. 

V. Nelson, ii. 841, 366, 357, 396. 

V. Nolen, i. fiOo. 

r. Otey, ii. (AH. 

V. Owen, ii. t)2. 

V. Peyton, iii 235. 

V. Roberts, ii. iH, 1»5. 

i". Robson, i. 257, 201. 

V. Ro«er Williams Ins. Co., ii. 227. 

V. Sorrell, ii. 151. 

V. Starr, ii. l'J4 ; iii. 2".)0. 

V. Stratton, ii. W>. 

i". Sullivan, iii. .'WS, 312. 

V. Swetland, i. JitiO, 431), 450. 

V. 'I'lmrlow, ii. 133. 

i". Turner, ii. 524. 

V. Welberetl, i. 37!). 

V. William.s ii. 57!» ; iii. 48, 553. 

r. Wilson, ii. 210. 

V. Woods, i. 217, 202 ; ii. 93. 

V. Worthinijton, ii. 550. 

r. Yoiin^j. i'. 3()7. 410 ; ii. 98. 
Williams' Apjjoal, ii. 2!»5. 
Williams' Kstate, ii. 4!»!». 
Williamson >■. Carlton, iii. 327. 

c. Cliamplin, ii. 25'.). 

V. Field, ii. 201, 588, 694, 596, 617. 

V. Gordon, i. 4iK5. 

I'. Mason, i. 210. 

I'. Test, iii. 5(1'.). 

r. Wilkins, ii. 572. 

r. Williamson, ii. tj57 ; iii. OS.*]. 
Williamston, &.c. Ii. R. r. IJattle, 1.004, 

'i69. 
Williman r. Holmes, ii. 501. 
Willinj,Mle r. .Maiiland, ii. 302. 
WiUini^ham r. Maynaril, i. ;]80. 
Willimiton r. Gale', ii. 10'.). 
Willink V. .Morris Canal, &c. Co., ii. 45, 

101; iii. 115. 
Willioii r. Herklcv, ii. 590, 593. 
Willis r. Farley, ii. 127. 

I'. Hiscux, ii. 9. 



Willis V. Jermino, iii. 305. 

r. .Moore, ii. 112. 

r. Vallette. ii. I2.'5. 

?•. Watson, iii. 544. 
Willison r. Watkins. i. 691, 698, (iOl, 

i.OU, 01'.). 0!K»: ii. 535, 63«}; iii. 108. 
Willot r. Sandford, iii. 2'Hj. 
Willou^'hby f. Horri.lt;e. li 300, :i07. 

<•. Willougliby. i. 4'.tO. 
Wilmartli c. Uuncrutt, i. 7, 11; ii. 

liO. 
Wilsey V. Dennis, ii. 118; iii. 310. 
Wilson, jy jiitrtt, ii. 104. 

r. Black, iii. '247. 

V. Branch, iii. '2»Kl, 207. 

r. Brown, i. 355. 300. 

r. Cassidy, iii. 301. 

r. Cliristoplier.son, i. 435. 

f. Cluer, ii. 210. 

V. Cochran, iii. 479, 487, 4S)2. 498, 
500, 522, 520. 

V. Davisson. i. 202 ; ii. 91, 93. 98 

V. Delaplaine, i. 548. 

I-. Drumrite, ii. 45. 

V. Kdmonds, i. 156. 

V. Ki^enbrodt, ii. 128. 

r. I",ly, ii. 535. 

I'. Kilropcan & N. A. R. K., ii lO'J 
172. 

V. Finch-IIatton, i. 670. 

V. Fleminfj, i. 709. 

V. Forbes, iii. 442, 480, 487, 489, 
52t;, 527. 

V. Fosket, iii 577. 

I", (leisler, ii. 271). 

V. (libbs, i. 580. 

I', (iraham, ii. 1)6. 

V. (Jray, i. 407,4.39. 

r. (ireen, i. 735. 

r. Ilar.lestv, i. 300. 

V. Havward, ii. 127, 128, 129. 

V. Hildreth, iii. 428. 

c. Hill, iii. .32.5. 320. 

V. Hunter, iii. 421. 

I'. Irish, iii. 4'.tl. 

(-. Kimball, ii. 121, 154. 

V. Lvon, ii. 8'.). 

r. .M'artin, i. 4S0. 

v. McLenanhan, i. 277. 

i\ Nance, iii. 3.">2. 

V. Oatnum, i. .'U)l. 

V. IVele, iii. 480, 503. 

f. Haybould, i. 506. 

V. Richards, ii. 64. 

r. Rinji. ii. 133, 178. 

r. Russell, ii. 85, 157, 100. 

V. ShoenbcrRcr, ii. 57, 108. 

V. Smith, i. 5.V.t. 500, 664, 693. 

r. Towie, ii. -Vjo. 

r. Town-shend, i. 5'Jl. 

r. Traer, iii. 3.3;{. 

V. Troup. ii.71, 72. 74, PO, 103, 122. 
123, 127, 002, 0VI7, 701. 719, 
720. 



cxlii 



TABLE OF CASES CITED. 



Wilson V. Weathersby, i. 598. 

V. Wideuham, iii. 481. 

V. Willes, ii. 393. 

V. Wilson, ii. 24, 245, 251, 278 ; 
iii. IS. 
Wilt V. Franklin, ii. 420, 456, 475 ; iii. 

317, 401. 
Wiltsliire c. Sidford, ii. 386. 
Wimple V. Fonda, ii. 590. 
Wiiians v. Peebles, iii. 391, 401. 
Winchell r. Wincliell, iii. 247. 
Winehelsea v. Wentworth, ii. 671. 
Winder v. Little, i. 292. 
Windliam v. Clietwj'nd, iii. 540. 

V. Portland, i. 316. 

V. Way, i. 13. 
Windle v. Brandt, i. 450. 
Windsor's (Dean of) case, i. 531. 
Windt V. German R. Cliurch, i. 35. 
Winfield v. Henning, ii. 298, 323. 
Wing V. Ayer, i. 304, 307, 310. 

V. Cooper, ii. 36, 47, 54, 55, 60, 63, 
65, 72. 

I'. Cropper, i. 417. 

V. Davis, ii. 188. 

V. Gray, i. 18, 31. 

V. Hayford, ii. 76. 

V. Scliranini, iii. 262. 
Wingard v. Tift, i. 664. 
Winlock i;. Hardy, iii. 98, 101. 
Winn V. Cabot, iii. 425. 

V. Cole, ii. 13, 15. 

V. Littleton, ii. 146, 147. 
Winnington's case. ii. 459. 
Winship v. Hudspeth, ii. 346. 

V. Pitts, i. 153. 
Winslow V. Chiffelle, i. 703 

V. Clark, ii. 262. 

V. Cooper, iii. 77, 78. 

V. King, iii. 452. 

V. McOall, ii. 251. 

V. Merchants' Ins. Co., i. 25, 27 ; 
ii 163. 

V. Noble, i. 434. 
Winstanley i'. Meacham, i. 699. 
Winsted Savings Bank v. Spencer, iii. 

292. 
Winstell I'. Hehl, i. 489. 
Winter v. Anson, ii. 95. 

V. Brockwell, i. 672 ; ii 397. 

V. Peterson, iii. 449. 

V. Stevens, i. 63, 617, 660. 

V. Stock, iii. 280. 
Winterbottom v. Ingham, i. 624. 
Wintermute r. Liglit, i. 11 ; iii. 416. 
Winters u. McGhee, i. 699. 
Winthrop v. Fairbanks, iii. 465, 473. 

V. Minot, i. 712. 
Winthrop Sch. Dist. v. Benson, iii. 70, 

72, 176. 
Winton v. Cornish, i. 577. 
Wisconsin Riv. Imp. Co. v. Mansur, ii. 

.304. 
Wiscot's case, i. 114. 



Wiseman v. Lucksinger, i. 602, 665, 668, 

670 ; ii. 389. 
Wiswall V. Ross, iii. 291. 

V. Stewart, ii. 569. 

V. Wilkins, i. 679, 680. 
Wiswell f. Baxter, ii. 193. 

V. Marston, iii. 435. 
Witham r. Brooner, ii. 434, 441, 453, 
467, 479 ; iii. 385. 

V. Cutts, i. 718. 

V. Perkins, i. 187. 
Witherill v. Wiberg, ii. 110. 
Withers v. Baird, iii. 333. 

V. Larrabee, i. 634, 630, 645, 651. 

V. Yeadon, iii. 571. 
Witherspoon v. Dunlap, i. 711. 
Withington r. Warren, iii. 298. 
Withy V. Mumford, iii. 501, 603, 504. 
Witman v. Lex, iii. 550. 
Witt V. New York, i. 650. 
Witter V. Briscoe, i. 260. 

V. Harvey, iii. 450. 
Witts V. Horney, ii. 518. 
Witty V. Matthews, i. 521, 569. 
Wixom's Estate, i. 358. 
Wofford V. McKinna, iii. 168, 236, 237, 

405, 410. 
Wolcott V. Knight, i. 237 ; iii. 127. 

V. Sullivan, ii. 154, 188. 
Wolff. Araent, iii. 165. 

V. Banning, ii. 266. 

V. Fleischacker, i. 382. 

V. Johnson, i. 594. 

V. Smith, ii. 210. 

V. Van Metre, ii. 50. 
Wolfe V. Bate, ii. 558. 

V. Buckley, i. 364. 

r. Dowell, ii. 133. 

V. Frost, i. 661, 665, 667 ; ii. 312, 313, 
314, 323. 
Wollaston v. Hakewell, i. 534, 541, 542. 

V. King, ii. 781. 
Wolverton v. Collins, iii. 312. 
Womack v. McQuarrie, i. 577. 
Wonson v. Wonson, iii. 459. 
Wood V. Appal, iii. 441, 443, 459. 

V. Bank of Kentucky, ii. 93. 

V. Bayard, i. 104. 

V- Beach, iii. 393. 

V. Beard, i. 630. 

I'. Chambers, i. 443 ; iii. 354. 

V. Chicago, R. I., &c. Ry. Co., iii. 
445. 

V. Cochrane, iii. 334. 

V. Felton, ii. 145, 246. 

V. Ferguson, iii. 212. 

V. Fleet, i. 719. 

V. Foster, iii. 457. 

V. Fowler, i. 4 ; iii. 442. 

V. Goodridge, i. 479; iii. 295, 297. 

V. Griffin, i. 156; ii. 606, 761, 805; 
iii. 81, 91. 

V. Ilewett, i. 5. 

V. Ilubbell, i. 472, 475, 566. 



TAULK OF CASES CITED. 



cxliii 



Wood r. Ilustiit, iii. 411. 

f. Kclli y. ii. ;i4;{, 347; iii. 4»4. 

V. LeiulbittiT, i. (>(i2, 00;j, OOl, 007, 
(5(IS, ()7(), 071, 073. 

r. Littii', i. 71H. 

V. Lor.l. i. 4r>J. 

i: Mimli-y, i 004, tJ7U, 071. 

f. .Miuiii, iii. liiSl. 

V. MatlitT, ii. o70 ; iii. 66. 

I'. Miil(j(-k, ii. 644. 

V. I'lii triiljji', i. 640, 650, 667. 

r. Kaho. ii. 521. 

V. Uiibiiisoii, ii 578. 

V. Sutciiire, ii. .•J07. 

r. Trask, ii. 37, 110, 128, 129, 270. 

c. \Vnll)ri(i};o, i. 5H5. 

V. Wand, i. 74 ; ii. .'5ii8, 380. 

r. Wlu'fler, i. 3.J2, ;;7i). 

V. Willard, iii. 4.'i7. 

V. Williams, ii. 207. 

V. Wood, ii. 4t51, 570, 700; iii, 678. 
Wood's Appeal, ii. 14'.l. 
Woodbury r. Fisher, iii. oOl, 315. 

c. (lartliHT, iii. 248. 

r. Luddy, i. 451. 

r. I'arslili'V, i. 004, 007. 

I'. Sliort, iii. 02, 0-3. 

V. Swan, ii. 177. 

I'. Wo(jdbury, i. 023. 
Woodlmil c. Uosenthal, i. 544. 
Woodlie r. Towlcs, i. 425. 
WoodlitT r. Dniry, ii. 45.3. 
Woodman r. Francis, ii. 140. 

V. (iood, ii. 573. 

f. Pease, i. 24, .30. 

V. Smith, iii. 413. 421. 

i;. Spencer, iii. 4.3S, 450, 452, 46.3. 

••. Woodman, ii. 55. 
Woodrow r. .Michail, i. 010. 
Woodrufrr. IJohh, ii. H2. 
Woods r. Hailcy, ii. 91. 

1-. Hanks, iii. 159, 107. 

f. l);ivis, i. 451. 

V. Ilil.lerbrand.ii. 100, 169; iii. 200. 

V. Naninki'aj; Co., i. 577. 

r. Sanford, i. 421. 

V. .Slmrlev, i. 331. 

V. WallaJe, i. ;504, .308, .310 ; ii. 60, 
03, 04. 
Woodside v. Kidneway, ii. 253. 
Wooilward i*. Mrown, i. 019. 

i: Clark iii. 338. 

I'. (Jates, i. 103. 

V. Lazar, i. 21. 

i: Lincoln, i. 390. 

V. Nims, iii. 432. 

V. I'hillips, ii. 238. 

I. I'ickett, ii. 47. 140. 

V. Sartwell, iii. 345. 

r. Seaver, iii. 273. 

V. Seeloy, i. Om, 070. 

r. Tudor, iii. 8'.t. 

r. Woodwanl, ii. 02. 
Woodworth r. Comstcjc-k, i. 302. 



Wooihvorih r. Guzman, ii. 45, 151. 

c. I'uiKi-, i. 201. 

r. I'a^ni', ii. H. 

r Kayinond, ii. 810,346. 840 
Wooilyear c. Sciiuefer, ii. ;i07. 3ti'J. 
Woold^.l^;e v. Wiikinn, i. 21(1, 210, 229, 

3(11. 3(14. 
WooUy r. Grotun, iii. 413. 
Woolfolk t: Ashby, iii. 9'.i. 107. 
\\'ooli8(roft r. Norton, i. 531. 
Wool!i-y r. Holt, ii. 110. 
WooUton f. Wool.Htoii. ii. 720. 
Woolviridjie r. Stewart, i. 525; ii. 313. 
Wooster r. Hunts I.viiuin Iron Co., i. 

313. 
Worcester r. Clark, i. 2i>0. 

c. Katon, i. 4bO, 4«7 ; iii. 27({, 35.3, 
3.39. 

V. Georgia, i. (W ; iii. 1V»5, 198. 

V. fireen, iii. 415. 

c. Lord, iii. 17.3 

r. Worcester, ii. 599; iii. 507. 
WorcfslL-r Sav. Hank i;. Thayer, ii. 

13.3. 211. 
Work r. Har[n'r. ii. 152. 
Workman r. .MilHin, i. 658, 559, 609. 
Wormley r. Wormley. ii. 570. 
Wormoatli c. Johnson, ii. 5<)7, 635. 
Worrall c. Munn, iii. 311, 318. 
Worth r. Hill, ii. 215. 
Worthiiifj r. Wi'lister. iii. 2^18. 
Worthin^ton r. Ilylvcr, iii. 422, 427. 

r. Lee, ii. 200,"2';h. 
Worthy I'. .Johnson, iii. 222. 
Wortman r. Ayles, iii. 142, 392. 

r. Skinner, ii. 571. 
WraRfj c. Comptroller-General, ii. 91. 
Wrifjht r. Barlow, ii. 707. 

r. Hati's. ii. 51. 

V. Blackwood, iii 273. 

t'. Brandis, iii. 3.3.3. 

V. Burrows, i. 5().h. 

r. Cartwri^'ht, i. 408; ii. 070. 

r. Christy, iii. 2<)0. 

r. De GrofT, i. 204. 

V. Doheriy, i. 442. 

r. Douglass, ii. 549. 

t'. Dunham, iii 2:18. 

r. Duiming. i. 449. 

V. F.aves, ii. 102. 127. 191. 

V. Freennin, ii. 357. 305. 

V. Henderson, ii. 112. 

r. Herron, i. IN). 

V. Holbrook, ii. 208. 

r. Ilolfonl, ii. 005. 

V. Howard, ii. li'Jo. 

V. IIowill, iii. 3.34. 

r. .Tanies. i. 447. 

r. .Icnninns. i. 311. 

V. Keithler, iii. 140. 

V. Lake. ii. 100. 

V. Lattin. i. 52.".. 5.3H. .',,y.i, .;,01, 5<'.2. 

r. Nipple, iii. 4hO, 529. 

r. Roberts, i. 025. 



cxliv 



TABLE OF CASES CITED. 



Wright V. Kose, ii. 75, 168. 

V. Rutgers, iii. 206. 

V. Sadiller, i. 706. 

V. Sliumway, ii. 44. 

V. Spcrry, ii. 177. 

V. Stepliens, ii. 621. 

V. Swan, iii. 206. 

i;. Tallmadge, ii. 694, 706. 

V. Tinsley, ii. 545. 

V. Trevezant, i. 480. 

V. Tulcey, ii. 172. 

V. Waketbrd, ii. 707. 

V. Ware, ii. 148. 

V. Williams, ii. 373. 

V. Wliite, ii. 598, 599, 628. 

V. Wriglit, ii. 346, 548, 758, 775, 776; 
iii. 262, 427, 525. 
W. River Bank v. Gale, i. 426, 456. 
Wrotesley i'. Adams, ii. 803 ; iii. 467. 
Wyatt V. Elam, iii. 336. 

V. Harrison, ii. 340, 381, 382. 

V. Stewart, ii. 64, 152. 
Wybird v. Tuck, i. 470. 
Wylie r. McMakin, ii. 263. 
Wyman v. Babcock, ii. 190, 281. 

V. Ballard, iii. 490, 529. 

V. Brigden, i. 92 ; iii. 530. 

V. Brown, ii. 49, 453, 470, 483. 491, 
667 ; iii. 142, 327, 385, 398. 

V. Farrar, i. 575. 

V. Hooper, ii. 122. 

V. Oliver, ii. 390. 

V. Symnies, iii. 540. 
Wyndham v. Way, i. 13. 
Wynkoop v. Burger, ii. 357. 

V. Cowing, ii. 65, 66. 
Wynn i-. Ely, ii. 261. 

V. Ficklin, i. 431. 

V. Harman, iii. 122. 

V. Sharer, ii. 520. 
Wynne v. Governor, iii. 254. 
Wythe V. Thurlston, ii. 709. 



Xenos V. Wickham, iii. 300, 301, 307, 
310. 

Y. 

Yale V. Dederer, iii. 268. 

V. Seely, i 656. 
Yancy v. Smith, i. 336. 
Yarbrough r. Newell, ii. 45. 
Yard v. Ford, ii. 316. 
Yarnall's Appeal, ii. 500, 648. 
Yarnold i". >Iooreliouse, i. 504. 
Yaryan v. Shriner, ii. 91. 
Yater v. Mullen, i. 9, 10. 
Yates V. Aston, ii. 52. 

V. Clark, ii. 71.3. 

V. Judd, iii. 436. 

r. Milwaukee, ii. 391, 445. 

V Van de Bogert, iii. 278. 
Yearly v. Long, ii. 106. 



Yeates v. Briggs, i. 449. 
Yeaton, Re, i. 555. 

V. Roberts, ii. 598, 599, 601, 782. 
Yeliand v. Fichs, ii. 697. 
Yelverton v. Steele, iii. 152. 

V. Yelverton, ii. 417. 
Yeo V. Mercereau, i. 234, 236. 
York V. Jones, i. 548. 

V. Stone, i. 681. 
York Mg. Co. v. Cutts, ii. 43. 
York & Jersey Steamboat Co. v. Jersey 

Co., ii. 231. 
Yost V. Devault, i. 435 
You V. Flinn, ii. 481, 576. 
Youle V. Ricliards, ii. 53. 
Young, Re, ii. 258. 

I'. Adams, i. 699. 

V. Dake, i. 646. 

V. De Bruhl, i. 686. 

V. Graff, i. 433 ; ii. 279. 

V. Herdie, iii. 138, 161. 

V. Keogii, iii. 241. 

V. iMiller, ii. 102, 104, 120, 125, 127. 

V. Morgan, i. 387. 

V. Ringo, iii. 342, 393, 403. 

V. Roberts, ii. 74. 

V. Ruth, ii. 170. 

V. Smith, i. 660. 

V. Spencer, i. 153, 231, 237, 241. 

V. Stoner, ii. 599. 

V. Tarbell, i. 285, 288. 

r. Wolcott, i. 200. 

V. Wood, ii. 95. 

V. Young, i. 617, 619; ii. 156. 
Youngblood i-. Vastine, iii. 345. 
Younge v. Guilbeau, iii. 299, 302, 310, 
311, 342. 

V. Moore, iii. 303. 
Youngman i'. Elmira R. R., ii. 164. 
Youngs V. Carter, i. 227. 

V. Wilson, ii. 157, 158. 
Younkin v. Cowan, iii. 434. 
Youse V. McCreary, ii. 170. 



Zabriskie v. Morris & Essex R. R. Co., 

ii. 567. 
Zane v. Kennedy, ii. 708. 
Zane's Will, iii. 552. 
Zebach v. Smith, ii. 553, 507, 718. 
Zeiter v. Bowman, ii. 115. 
Zeller v. Eckert, i. 598, 603; ii. 192; 
in. 153, 175. 

V. Southern Yacht Club, iii. 65. 
Zellers v. Beckman, i. 458. 
Zent V. Picken, iii. 5.32. 
Ziegler v. Grim, i. 716. 
Zimmerman v. Anders, iii. 550. 
Zinc Co. V. Franklinite Co., i. 19. 
Zorntlein v. Bram, i. 710. 
Zouch V. Parsons, i. 486, 488; iii. 261, 264. 

V. WiUingale, i. 638. 
Zule V. Zule, i. 557. 



LAW OF REAL PROrERTY. 



l^.OOK T. 
CORPOREAL HEREDITAMENTS. 

CHAPTER I. 

NATURE AND CLASSIFICATION OF REAL PROPERTY. 

1. Introductory. 

2. Dinsion of property by the common law, 
2 a. Division of proju-rty by the civil law, &c. 

3. Land and ita incidents always real. 

4-4 a. Houses, &c., when pei-sonal and when real. 

5-9. Crops and trees, when personal and when reaL 

10. Chattels fitted to realty, when real. 

11. Of distinct projxTties in the same house. 

12. Proi)erty in mines, &c. 

13, 14. Corporate property, when real and when pcrsouaL 

15. Projierty in manure. 

16. Heirlooms. 

17. Chattel interests in lands. 

18-32. Fi.\tures, when real and when personaL 

33. Pews in churches and burial rights, 

34. ^loney, when treated as realty. 

35. Definition of lands and real estate. 

36, 37. Lands, tenements, and hereditaments defined. 

38, 39. Distinction between livciy and grant. 

40. Incorporeal hereditaments. 

41. Vested and contingent, executory and executed interests. 

42. Legal and equitable interests, 

43. Conclusion, 

1. In entering upon a work like the following, it seems un- 
necessary to speculate, as many writers have done, 
upon the * origin of the idea oi property. The right of ['2] 
exclusive enjoyment by some one individual, of por- 
tions of what might, at first, seem a common heritage, — the 

VOL. I. — 1 



2 LAW OF EEAL PEOPERTY. [bOOK I. 

earth, and its products, — is too well settled as an elementary 
principle in the organization of society, to render it necessary 
to go behind the simple fact itself in discussing its laws.i 
This right of property, however, is so far limited, that its 
use may be regulated from time to time by law, so as to 
prevent its being injurious to the equal enjoyment by others 
of their property, or inconsistent with the rights of the 
community.^ 

2. The first great division of property is into Real and Per- 
sonal. This distinction, though now so familiar, seems not 
to have prevailed until the feudal system had lost its hold 
upon the property of England, and took its rise from the na- 
ture of the remedy sought by one who had been deprived of 
its possession. In the case of lands, for instance, he recov- 
ered, if at all, the real thing lost. But for the abstraction of 
a chattel, his remedy was against the person who had taken it 
away.^ And, though the line of distinction between these two 
classes of property might seem to be easily drawn, it will be 
found that property often assumes the one or the other charac- 
ter, according to the circumstances in which it is placed. Thus 
a house or a standing tree may acquire the incidents of per- 
sonal estate, while articles of a movable character may come 
to have qualities which belong to the realty, by the nature of 
the use to which they are fitted and applied. 

2 a. This division rests upon the feudal notions of property, 
whereas the distinction recognized by the civil law was into 
res mancijn and res nee mancipi, things which might or might 
not be handled, or corporeal and incorporeal ; while the first 
class was subdivided into movable and immovable. Thus Biens 

1 2 Bl. Com. 1-10 ; Kaimes, 3d Hist. Tract; Maine, Anc. L. c. 8. "Of all 
subjects of property," says Lord Kaimes, " land is that which engages our affec- 
tions the most, and for this reason the relation of property respecting land grew 
up much sooner to its present firmness and stability than the relation of property 
respecting movables." Tracts, p. 96. 

2 Commonwealth v. Tewksbury, 11 Met. 55; Commonwealth v. Alger, 7 Cush. 
53, 86; Cushmau v. Smith, 34 Me. 258; Bancroft v. Coolidge, 126 Mass. 438. 
See Code Nap. § 544. There is a division of things which excludes the idea of 
separate individual property, such as air, running water, the sea, the sea-shore, 
&c. In the words of Bracton: " Naturali vero jure communia sunt omnia haec 
aqua profluens, aer et mare et littora maris quasi maris accessoria." c. 12, § 5. 

3 Wms. Real Prop. 7. 



(11. l] N ATlIti: A\I» CLASiJlFICATION OF KICAL I'KOPKHTV. .'{ 

cuin|irflirn(lt(l hoih ilic real estate ami personal chattels of 
the coiiunon law. The distiiietioii hetween movahle and im- 
inovahle in the civil law had reference tc; the doctrine of 2inn^ 
capiofi, answerini^' to the niixlern pri-yrrij>tion, and to the ex- 
tent to which thin<2:s passed as appendant or ap|»nrtenant to 
iinnioval)le pro|>erty in a conveyance thereof.' An Knirlish 
writer, in treatinjrof this subject, retrards real and jurnonal^iiH 
now applied, as descrihinj^ the quality of thintrs, while the 
<|uantity of estate therein is rejiresented hy the terms //vrAoW, 
and chattel.^ In the Scotch law, property is divided int<» *' her- 
ital.le" ami '' ujovahle.''^ 

-i. Land is always re^L'arded as real property, and so, ordi- 
narily, is whatever is erected or <rrowing upon it, as well as 
whatever is contained within it or beneath its surface, such as 
minerals ami the lil<<'. upon the principle that cnj'us est solum 

1 Austin Juris. .\iiv. ; Maine, Anc. L. 273-28 4 ; 1 Brown, Civ. Law, 160; 
Giitcrbofk's Hrncton, Coxc, 86, 87, an.l note. Althougli res mancipi was applii-d 
only to tilings which might be handled, all things of that kind were not neces- 
sarily within that class. The term was applied to certain cla.sses of proj)erty 
to the transfer of which by sale certain fomialities were re(iuired by the early 
Roman law, the omis-sion of any one of which rendered the sale void. As 
remarked by Mr. Maine (p. 276), "An ancient conveyance was not written, but 
acted ; gestures and words took the jilace of written technical phmseology." 
Thus, in order to make a good sale of lands coubisting of Italian soil, or of slaves 
and ordinarj- Wasts of burden, all of which were rai maiicijn, the vendee, in the 
presence of five witnesses, and a sixth, who was provided with copjier scales and 
called lihrijH-ns, asserted his right to the proprty, and struck the scales with a 
piece of coin and gave it to the vendor. There must be an actual deliver}- of the 
thing sold, and, if it was land, it must either be done upon the land or by deliv- 
ery of a sod or brick or tile taken from it, in the name of the land. All other 
corporeal things were included in res ncc maiu:i}n, and might l>e transfem'<l by 
simple delivery. Under the code of Justinian, this di.stinction was done away 
with, and delivery was the only fonn required in making transfers of projierty. 
Maine's Anc. L. 276, 277 ; Aluly & Walker's Gains, 39, -10, 72, 73 ; Mackenzie's 
Roman I^w, 166 ; Hadley's Lectures, ^^. Uaucnpiun, or taking by us*', wa.<i 
a mode of acijuiring projM ity in a thing by the possession and use of it for a time 
prescribed by law. It applied to such things only as were acquired in good fnith 
by gift or purchase. By the XII. Tables, this tenn for movables was one year; 
for immovables, two years. Under the law of Justinian, three years were rv- 
quind in the case of movables, and ten in that of immovables. Gaiu^ 80 ; 
Mackenzie, 187. Bona, under the Roman law, embraced all kinds of proijcity. 
Mackenzie, 165. 

■^ 1 Wood, Conv. viii. 

« Ersk. Inst, 192. 8<« 2 Sliarsw. Bl. Com. 16, notes. 



4 LAW OF REAL PROPERTY. [bOOK I. 

ejus est usque ad coelum in the one direction, and usque ad 
Orcum in the otlier.^ The word land includes not only the 
soil, but everything attached to it, whether attached by the 
course of nature, as trees, herbage, and water, or by the hand 
of man, as buildings and fences. The grant of land eo nomine 
will convey buildings and fences, as well as trees and herbage 
upon, or mines and quarries in, the ground.^ Thus the road- 
bed, the rails fastened to it, and the buildings at the depots of 
railroads, are real property.^ 

4. But if a man, by the permission of another, erects a house 
upon the other's land, it will, if the builder have no estate 
in the same, be the personal property of the builder, if such 

1 2 Bl. Com. 17-19. ; 1 Law Mag. 271 ; Co. Lit. 4. a ; Wms. Real Prop. 14 ; 
Broom's Maxims, 290. Propei'ty in respect to water is predicated only of its use, 
except as connected with land. That the propert}' in ice upon a stream or pond 
of water is in the owner of the soil below, and not in the mere riparian proprietor 
as such, seems to be now settled by the weight of authority. Mill Eiver Co. v. 
Smith, 34 Conn. 462 ; Cummings v. Barrett, 10 Cush. 186 ; Paine v. Woods, 
108 Mass. 160, 173 ; Edgerton v. Huff, 26 Ind. 35 ; State i;. Pottmeyer, 33 Ind. 402 ; 
Lorman v. Benson, 8 Mich. 32 ; Higgins v. Kusterer, 41 Mich. 318 ; Washington 
Ice Co. V. Shortall, 101 111. 46 ; Washb. Ease. 4th ed. 396 ; Myer v. Whittaker, 55 
How. (iSr. Y.) 376, overruling Marshall v. Peters, 12 id. 218. Hence where, as 
in Massachusetts, certain ponds — called gi-eat ponds — are public property, the 
riparian owner acquires no title to the ice, but any one who can lawfully gain 
access to the same may cut and carry away the ice formed thereon, pro\'ided he 
do not thereby unreasonably interfere with the exercise of a similar right in 
others. Paine v. Woods, sw?'. ; W. Roxbury v. Stoddard, 7 Allen, 158 ; Hittinger 
V. Eames, 121 Mass. 539 ; Gage v. Steinkrauss, 131 Mass. 222. So in Kansas, on a 
fresh-water navigable stream. Wood v. Fowler, 26 Kans. 682. On the other 
hand, in Llichigan, a lessee of riparian rights on such a stream was held entitled 
to recover the value of ice made thereon by his special care, from one whose neg- 
ligent use of the stream as a highway had destroyed it. People's Ice Co. v. 
Steamer Excelsior, 44 Mich. 229. A similar rule was adopted in the case of 
manure collected in the public streets. Haslem v. Lockwood, 37 Conn. 500. 
Land is called solum, quia est solidum, as stated by Coke. It comprehends any 
ground, soil, or earth, as well as castles, mansion-houses, or other buildings 
erected thereon, and the mines under the surface. But a grant of water does not 
include land, except in the case of salt pits or springs. Co. Lit. 4 a and b ; 
1 Atk. Conv. 2 ; Green v. Armstrong, 1 Denio, 550, 554 ; Shep. Touch. 91. " In 
its more limited sense, the term land denotes the quantity and character of the 
interest or estate which the tenant may own in lands." " When used to describe 
the quantity of the estate, ' land ' is understood to denote a freehold estate, at 
least." Johnson v. Richardson, 33 Miss. 462, 464. 

2 Per Bronson, J., Mott v. Palmer, 1 N. \^ 564, 572. 

3 Hunt V. Bay St. Iron Co., 97 JLass. 282. 



111. I.J NATURE .VNl) rL.VSSIFIC.VTlON OK HK.VL PUdPKUiV. 

he liis ajrreomont with tlio lantl-owncr.* If a tenant of h-asril 
preinisoa erect a structure thereon, apjiropriate to the charae- 
ter of his occupancy, he has within certain liniitationH a rijrht 
to remove the same while in possession of the prem- 
ises.- If the * htiihhM*, however, have a permanent inter- [• -'>] 
est in the hind, such as the liushand of the t<'nant in 
fee,'' or reversioner or rcniuiniler-iiKiii has,' or l»c in possession 



* The earlier ciuscs nro i»crbn)is not suiricieutly exiilieit as to this Lust n'<juirc- 
nieiit. See Ahlricli r. Parsons, N. H. S.IS ; Osgoo«l r. Ilowunl, G .Me. 452 ; 
Itussell I'. Rieliiinls, 10 Me. 429 ; coiinnented on in Hinkh-y Co. v. Hhiek, 70 Me. 
473 ; Lti])linni v. Norton, 71 Me. H'.\ ; where the rule in the te.xt is afllrnied ; ami 
see DiUiie v. Dame, 38 N. II. 421» ; Korbc t>. Barbour, 130 Mass. 2i>C>, where, 
thougli the broailcr rule is not disjipjiroveil, the facts decided ujKjn were as in the 
te.\t. A careful examination of the earlier cases will show that wlierever the 
character of personalty ha.s attached to a ImiMing erect<'<l on another's laml, there 
has been either no substantial annexation, Rogers v. Woo<ll)ury, 15 Pick. 16<5 ; 
O'Donnell i-. Hitchcock, 118 Mass. 401 ; Hinckley v. Baxter, 13 Allen, 139; 
Mott r. Palmer, 1 N. Y. 564 ; or the relation of landlord and tenant existed, 
Doty V. (Jorhani, 5 Pick. 487 ; Washbuni v. Sproat, 16 Mass. 449 ; .\ntoni r. 
Belkuaj>, 102 Mass. 193 ; Morris v. French, 106 Ma-ss. 326 ; Van Ness v. Pacanl, 2 
Pet. 137 ; Dubois v. Kelly, 10 Barb. 496 ; or there was in substance an agn'enient 
for the right of removal, — either in terms. Wall v. Hinds, 4 (Iray, 273; Ham 
t'. Kendall, 111 Mass. 297 ; Dame v. Dame, supni ; or implied from a remincia- 
tion of title by the land-owner. Wells v. Banister, 4 Mass. 514 ; or from his 
agreement to buy frtim the builder antl the like, Ashmun r. Williams, S Pick. 
402. Such an agreement that the structure shall Ik- jM-rsonalty can of course be 
implied from circumstjinces of a general kind independent of the acts of the jxirties, 
such as the nature of the article annexed, the relative situation of tlie jKirties and 
of their proi)erty, Wood r. Hewett, 8 (}. B. 913 ; Lancaster v. Eve, 5 C B. N. 8. 
717 ; Korl)o i". Barltour, supra; and in fact such is the foundation of the tenant's 
right, and at the same tiuje sets the Hunts to that right. O'Brien v. Kusterer, 
27 .Mich. 289. And see next note. 

2 Van Ness r. Pacard, 2 Pet. 137 ; Ilanmhan i'. O'Reilly, 102 Mass. 201, 
which was the case of bowling-alleys erected by the tenant and removed during 
the tenn. In Antoni r. Belknap, 102 Mass. 193, a tenant for an uncertain 
jK-riod, who had erected buildings, was held to have a right to n-move them 
witliin a reasonable time after the landlord had determined tlie tenancy. The 
limitations are, in general terms, that the structure shall bo for the purjwse of 
trade, agriculture, ami the like. Ewell Fixt. 80 ef scq. 

' Olid.len V. Bennett, 43 N. H. 306. S<'e Washburn v. Sproat, 16 Mass. 449. 
Though that more pro|M>rly gcM-s on the inability of husband and wife to contract 
with each other. Welister v. Potter, 105 .Ma.ts. 414. 

* Coo|»er V. Adams, 6 Cush. 87. And where a tenant buys in the reversion 
he loses his tenant's privilege of n-moval, as against an existing mortgage. .lones 
V. Detroit Chair Co., 38 Mi. h. 92 ; Perkins v. Swank, 43 Miss. 319 ; a/nira. 
Globe Mills v. Quinn, 76 N. V. 23. 



6 LAW OF REAL rnOPEKTY. [dOOK L 

under a contract of purchase ,i or if his intent be referable to 
a permanent holding, the structure becomes at once a part 
of the realty .2 It is a maxim of the law, quicquid i)lantatur 
solo, solo cedit? But a right to erect a mill upon the land of 
another is an incorporeal hereditament, which can only be 
created by writing.^ 

The law, therefore, in respect to the property in buildings 
erected by one man upon the land of another, seems to be 
this ; If the building, or a permanent fixture, be erected upon, 
or attached to the realty by the owner of it, and intended to 
remain, it is not the subject of conveyance as personalty, 
even by the owner of the freehold. And a mortgage of it by 
him, as personal property, without actual severance, will 
not be valid against a purchaser of the freehold. In one case, 
A, the owner of land, by an arrangement between him and B, 
built a barn on his own land, which he set upon stone posts, 
and B was to hire the same, and upon paying for it was to 
have a right to remove it. A sold the land to C, who, by parol, 
agreed that the barn should not pass by the deed, C sold the 
land to another, but said nothing of the barn. It was held that 
the title to the barn passed with the real estate unaffected by the 
parol agreement under which it was built.^ But a freeholder 
can make a valid sale of buildings and other fixed property 
to be immediately severed and removed.^ If a building be 
erected without the assent and agreement of the land-owner, 
it becomes at once a part of the realty, and is the property 
of the owner of the freehold.' So where a house has stood 

1 Eastman v. Foster, 8 Met. 19 ; Ogden v. Stock, 34 111. 522 ; Poor v. Oak- 
man, 104 Mass. 309 ; Hemenway v. Cutter, 51 Me. 407 ; and the cases of Russell 
V. Richards, 10 Me. 429 ; s. c. 11, 371 ; Pullen v. Bell, 40 Me. 314, apparently 
contra, are explained and limited by Hinkley Co. v. Black, 70 Me. 473. 

2 Leland v. Gassett, 17 Vt. 403 ; Lipsky v. Bergman, 52 Wise. 256 ; Ritch- 
meyer v. Morse, 3 Keyes, 349 ; Christian v. Dripps, 28 Penn. St. 279. 

3 Bracton 10 ; Broom Max. 295. * Trammell v. Trammell, 11 Rich. 471. 
5 Burk V. Hollis, 98 Mass. 55 ; Webster v. Potter, 105 Mass. 414 ; Landon v. 

Pratt, 34 Conn. 517; Bonney v. Foss, 62 Me. 281; Richardson v. Copeland, 6 Gray, 
536; Gibbs v. Estey, 15 Gray, 587; Deane v. Hutchinson, 40 N. J. Eq. 83. 

G Shaw V. Carbrey, 13 Allen, 462 ; Nelson v. Nelson, 6 Gray, 385 ; Hallen v. 
Runder, 1 C. M. & R. 266; Marshall v. Green, 1 C. P. Div. 35. And see x>ost, 
§§ 7, 8, 9. 

7 Sudbury Parish v. Jones, 8 Cush. 184 ; Poor v. Oakman, 104 Mass. 309, 
317; Webster v. Potter, 105 Mass. 414, 416; Howard v. Fessenden, 14 Allen, 



(!!. I.] NATUUK AND CLASSIF!' VT-'C: oi KKAL I'UOl'KlCTV. 7 

Upon liuid for thirty years, it ua.^ lulil to li:iv«' Ixcoim' u lixturc, 
ami ini^Mit not Ik- removed without tlie consent ol" tlicowni r.>f 
the soil.i So it has been hvll in INnnHylvania, that 
stranirt'r rntcr npon the hind of another and njakf inj|.ro\»> 
nu-nts and oroct liuihlinjrs, they he(M)nie tlie property of the 
hind-o\vner.2 So if a tenant at will removes a liouse on thi- 
premises, and phices it on a eelhir with a stone fonndation, he 
makes it a jiart of the freehokl, and a mortpifre of it by him as 
personalty passes no title.^ So where one, jiendin*; a snit to try 
the title to land, erected a house thereon by permission of the 
defendant in the suit, it was held that the former could not 
remove it airainst the will of the plaintifT, who jirevailed in the 
suit.^ So fixtures attached to premises by one in possession 
uniler a contract of purchase, where he fails to perf(jrm on 
his part and thereby to accjuire a title, become a ])art of the 
realty, like fixtm-es annexed by a vendor or mortgagor, and 
may not l)e rcmoveil by him.'' 

124 ;«<)iikman v. Dorcli. F. I. Co., 98 Miis,s. 57 ; Li-laml t>. Gassett, 17 Vt. 403 ; 
BouiK-y V. Koss, 62 Mc. 248 ; Guernsey v. Wilson, 134 Mass. 486. So a milroaJ 
ert'cting a depot on land, or annexing mils thereto, without the consent of the 
owner, or oondeumation of the land or tender <if damages, loses title to what iji 
so annexed. Gndiam v. Counereville K. K., 36 Ind. 463 ; Meriaiu v. Brown, 
128 Ma.->s. 391. 

1 Kiid V. Kirk. 12 llich. r.4. 

« Cn-st V. Jack, 3 Watts, 239; West r. Stewart, 7 iVnn. St. 1'.:::. 

' Madigan v. Maiarthy, 108 Mass. 376. 

* Henderson v. Ownhy, 56 Tex. 647. So Hnhs.hman r. McIIenrj', 29 WLsc. 
655, where the huilder relied on the j>emiission of one holding a tJix title 8ul>!>e- 
•luently adjuilgeil bad. The earlier case of Mclunkin v. Duprce, 44 Tex. 500, 
which iM-rniitted RMnoval of a cotton gin and stand, proceeded rather on the 
ground that the articles were not fixtui-es, — Cole ». Roach, 37 Tex. 413, — and 
is distinguished in 56 Tex. 647, supra. And see post, pi. 4 a. 

6 M.Liuglilin V. Nash, 14 Allen, 136; Daggett v. Tracy, 128 Mass. 167; 
We.stijMle V. Wixon, ib. 304; Hinkley Co. v. Black, 70 Me. 473, where the text 
is cited; and see nitU, p. 5, n. 1, and cases cited. In Hartwell v. Kelly, 117 M.xih. 
235, the |>oint decided was that a rejdevin of the building by the tenant who had 
contracted not to n-niove it was no tresjMiss. For the removal of such a structure 
the land-owner may have rejdevin so long as tlie prop-rty is identifiable aiul not 
annexed to the realty, Ogibn r. Stock, 34 III. 522 ; Heese r. Janil. 15 Ind. 142; 
Sands p. PfeifTer. 10 Cal. 25S; Liflin r. C.rimths, 35 Barb. 58; Dubuque StM-ii-ty 
V. Fh-niing, 11 Iowa, 533; but after annexation, only trover, ib. In (Vntr. R. R. 
V. Frit/, 20 Kaus. 430; Fjives r. Hst*e, 10 Kans. 314 ; Mills r. Re<lick, 1 Neb. 
437, replevin wa« held to lie after annexation, but the law seems clearly other- 
wi.sc; eases sitjfra, Curtis r. Riddle, 7 Allen, 185; Wilmarth r. Ikuicroft, 10 Allen, 
848; Bro. Abr. Tresp. pi, 43. 



8 LAW OF REAL PROPERTY. [BOOK L 

4 a. The civil law upon this subject is said to be substan- 
tially this : If one builds upon his own land with the materials 
of another, the building would follow the property in the soil, 
though by the XII. Tables the owner of the materials might 
recover double their value. He might not take away the 
house unless so placed as to be easily removed. If one built 
with his own materials upon another's land by mistake, the 
house followed the property in the soil. But if the owner of 
the soil insisted upon retaining the house, he was liable to 
pay the builder the value of the materials and work. But if 
one knowingly builds upon another's land, he is presumed to 
have given his materials and workmanship to the owner of 
the soil.i Whereas, as stated by the same writer, by the com- 
mon law, if one, though ignorant of his title or by mistake, 
builds upon the soil of another, he cannot claim anything for 
his materials or workmanship.^ While a house standing upon 
mortgaged premises belonging to the owner of the soil is a part 
of the realty, and passes with it ; yet in those States where 
a mortgage is a lien upon, and not an estate in the land, if the 
mortgagor in possession, and before breach, separates the house 
from the land, or if he cut trees growing thereon, and carry 
them away, the mortgagee cannot follow them to claim them.^ 
So if the house be built by one man upon the land of another, 
by the consent of the latter, and he sell the land, though it 
does not pass a property in the house, it would operate as a 
revocation of the license under which the builder placed it 
there. The owner may always remove it after notice of a 
revocation of such license, if done within a reasonable time.* 
Or he might sell it by oral agreement without writing.^ Nor 
would it make any difference if the owner of the land himself 

1 Wood, Civ. L. B. 2, c. 3, p. 159, and see Bonney v. Foss, 62 Me. 248, 251. 
See Broom's Maxims, 295-297. It is otherwise in equity. Bright v. Boyd, 2 
Story, 605 ; Union Hall v. Morrison, 39 Md. Rep. 281. 

2 Wood Civ. L. uhi supra. 

8 Buckout V. Swift, 27 Cal. 433. But it is otherwise after breach. Sands v. 
Pfeiffer, 10 Cal. 258. And in New York the rule between mortgagor and mort- 
gagee is declared to be the same as between vendor and vendee. Laflin v. Grif- 
fiths, 35 Barb. 58 ; Snedeker v. Wan-en, 12 N. Y. 170, 174. 

* Dame v. Dame, 38 N. H. 429. 

5 Xeyser v. School District, 35 N. H. 477. 



CII. I.] NATfUE AND CLASSIFICATION OF IlKA!. !"!■'" ':TV. 9 

l)uil<ls llu' lioiisc, if he do so for aiiolluT who \ni\s liim for the 
saiuc with a ri^lit to rciuovc it.' I>ut where a hniMiii^^ in 
erectoil uixtn the \<x\u\ of another uiulrr an aj^rceuH'nt that the 
huilder may remove it, it will remain his personal property ; 
nor would a sale of the realty, under process of hankrujitcy 
against the land-owner, pass any title to the buildinjr.'- The 
following; case illustrates how a huildin^ may retain its char- 
acter of personalty throu«rh successive chani^es of ownership 
in the land on which it stands. J R, while lessee of land, 
removed a building on to it. He thin sold it as a chattel to 
his li'ssors, the owners of the fe(\ who, at the same tinje, mort- 
gajxed it as a chattel to F R. The land was then under a 
mortgage, and the mortgagee subsccpiently took possession of 
the premises. The mortgagors of the house in the mean time 
had released their interest in it to F R, who sold one-half of 
it to one B, and the mortgagee of the land leased the same to 
F R and H, with a proviso contemplating his buying the build- 
ing at the exj)iration of the term. The original lessors and 
owners of the land in fee, having become bankrupt, their title 
to the land was sold, and the purchaser paid olT the mortgage, 
he knowing at the time that F R and B claimed the liuihling 
as personal proj)crty. It was held that the building remained 
a chattel in respect to its ownership through all these changes 
of title to the land.^ So where A, by permission of B, l)uilt a 
mill on B's land under an agreement to purchase the land as 
soon as B should have paid an outstanding judgment which 
formed a lien upon it, and in the mean time to own the mill, 
and B having failed to satisfy the juijgment, the land was sold, 
it was held that the mill remained A's personal proj)erty, and 
did not jtass with the estate.* A steam saw-mill may be per- 
sonal |)roj»erty though standing on another's land, and may 
be liable as such for the owner's debts,'' and this although it 
was originally jilaced there conditionally, if the owner of the 

> Coleman r. I^owis, 27 Pcnn. .St. 291. 

2 Ccxxlmnn v. Han. k St. J. U. U., 4.1 .Mo. 33 ; MorrU r. French, 106 Mas* 
32G : H.iwanl r. FossfniK-n. H Allen, 124. 

' Morris v. French, 106 Ma.ss. 320. SiX post, •115. 
* Yatcr V. Mullen, 24 Iml. 277. 
» State V. IJonluun, 18 Ind. 233. 



10 LAW OF REAL PEOPERTY. [bOOK 1. 

land shall have failed to perform on his part.^ Where a 
bridge belonging to a corporation was taken by a flood and 
carried upon the land of a third person, and deposited there 
without their fault, they did not thereby lose their property in 
it. The owner might remove it from his premises, but he 
could not have an action against them for the act of its being 
deposited upon their land.^ But if one hires an article, like a 
steam-engine, and so attaches it to a building upon his own 
premises that it can only be removed by destroying the build- 
ing, and then sells or mortgages the premises as real estate 
to one who is not cognizant of the facts, it will be held to pass 
a property in the engine, and the original owner must look to 
the party for compensation who thus converted the same.^ 
And the same principle would apply, if one takes another's 
materials for building, and works them into a structure upon 
his own land in connection with his own materials, and then 
sells or mortgages the same to another who is ignorant of the 
fact.^ But where a mortgage creates an estate in the land, 
and the mortgagor removes fixtures from the premises, the 
mortgagee may have trespass against him, or if he sell them 

1 Yater v. Mullen, 23 Ind. 562. 2 Livezey v. Philadelphia, 64 Penii. St. 109. 

3 Fryatt v. Sullivan Co., 5 Hill, 116 ; Pierce v. Goddard, 22 Pick. 559. See 
also Early v. Burtis, 40 N. J. Eq. 501 ; Penn Mut. L. lus. Co. v. Sample, 
38 N. J. Eq. 575; Furbush v. Chappell, 105 Penn. St. 187. 

* Ibid. A building or chattel annexed by one to another's land, but with a right 
of removal, may remain personalty even as against the vendee or mortgagee of the 
land-ov?ner so long as it is identifiable and severable; Mott v. Palmer, 1 N. Y. 571; 
Ford V. Cobb, 20 N. Y. 344; Smith i;. Benson, 1 Hill, 176; Tifft v. Horton, 53 N. Y. 
377; Eaves v. Estes, 10 Kans. 314 ; Dame v. Dame, 38 N. H. 429 ; Hinckley v. 
Baxter, 13 Allen, 139 ; but when the structure or chattel is permanently annexed 
by the land-owner, who simply gives a mortgage or other lien thereon as personal 
property, this passes as realty to the mortgagee of the land, or other party entitled 
thereto, who is without notice of such lien, and he will hold it free from liability 
for it or its value to the lien holder. Hunt v. Bay St. Iron Co. , 97 Mass. 279 ; Curtis v. 
Riddle, 7 Allen, 185 ; Pierce v. George, 108 Mass. 78 ; South br. Sav. Bk. v. Exeter 
"Wks., 127 Mass. 542 ; Same v. Stevens Co., 130 Mass. 547; State Bk. v. Kercheval, 
65 Mo. 682 ; Smiths?. Waggoner, 50 Wise. 155, 161; Walmesley v. Milne, 7 C. B. 
N. s. 115 ; Morrison v. Berry, 42 Mich. 389. So far as the New York cases are 
contra, they may proceed on the ground that in that State a mortgage is a lien 
and not an estate. Tifft v. Horton, 53 N. Y. 385. So see Hendy v. Dinkerhoff, 57 
Cal. 3. Where, however, the chattel owner was deprived of it by fraud or with- 
out his consent, his title is not divested by its annexation. Cochran v. Flint, 57 
N. H. 514 ; D'Eyncourt v. Gregory, L. E. 3 Eq. 382, 397. 



Lll. 1.] NATL'lJi: \M> < i,\<-.irir.vT10X OF IlKAL l'!:"i"''V 11 

to a third jhtsoii, the inortLra^'oe may rofiuiri' tin- [.uichusor 
to pay him lur thorn. Nor wouM jt make any ililVcrence if 
the lixtmcs were parts of a buiUlinir which hail been ileMtroyed, 
and which had been saved, such as dijors, window-blinds, and 
the like.' 

5. (Irowing crops standinj; ujxjn the soil when this is con- 
veyed pass as part of the realty, if plant<'d l)y the jrrantor.* 
This princi|»lo was held to extend to crops of corn standing 
in the held, unharvested, in December.^ And the same prin- 
ciple applies to trees planted for sale by tlie owner of the land.* 
And if he devises his fiirm, the crops then irrowiuL'' pass witji 
it.'' And in this resjicct the ct)mMion law coincides with the 
law of France, by which such cro|ts are considered to cc^mc 
within the class of immovables.'' It, however, they are grown 
and lit for harvest at the owner's death, the annual cro|)S will 
go to the executor or administrator, and not to the luir." 
And when they have been sold standing, l)y a valid sale, and 
the title has j)a.ssed, the i»urcha.ser has a rea.sonable time after 
they arc ripe to gather them ; nor can the land-owner inter- 
fere with them until after such time.^ Indeed it seems well 
settled in this country, notwithstanding .some earlier cases in 
England, that growing annual croj)s, as well as those ri|)C 
already, can, as frudus induxtrice, be the subject of a valid 
oral sale l)y the owner, with an implied license to the vendee 
to enter and take them.® So if such crops arc planted iiy a 

» Wiliiiiuth V. Bancroft, 10 Allen, 348. 

« Falmouth r. Thonjas, 1 Cr. & M. 89; Mechelen r. Wallace, 7 A.l. & E. -19 ; 
Vaughan r. Hancock, 3 C. IJ. TOG ; Hrantoni v. Orimts, 1 C. P. Div. 349 ; linnk 
of Penn. t>. WUe, 3 Watts, 394,406 ; Wintcnnute v. LiRht, 46 Rarb. 278, 283 ; Bull 
V. Griswold, 19 111. 631; contra. Smith r. .Johnston, 1 Punu. 471. St'i: jtost, vol. 2, 
•625 ; also Thayer v. Hock, 13 Wend. 53. 

» Kittredge r. Woods, 3 X. H. 503 ; Tripp r. Ilasceig, 20 Mich. 254, 261 ; 
though one judge, dissenting, held that the field was the storchouac of the crop ; 
as to whiih .sc<r Parker v. Staniland, 11 Ka.st. 362. 

« Smith V. Priee, 39 111. 28. 

' Bnulncr c. Faulkner, 34 N. Y. 347 ; Dennett r. Hopkinson, 63 Me. 350. 

• C«lc Nap. art. 520. 

T Penhallow r. Dwight, 7 Mass. 34 ; Kingaley r. Holbrook, 45 X. H. 313, 319 ; 
Howe r. Baehehler, 49 X. H. 2ii4 ; Pattison"s App., 61 Penn. St. 294. 

• Ogden V. LxicaA, 48 111. 492 ; Stewart v. Doughty, 9 .lohna. 108, 112. 

» See Kvans r. KolvrtA, 5 B. & '. 829 ; .lone* v. Flint, 10 Ad. & K. 753; Snin«- 
bury V. Matthews, 4 M. & W. 343, overruliug ElmmcrsoD v. Ilcelia, 2 Taunt iS ; 



12 LAV7 OF REAL PROPERTY. [bOOK I. 

tenant "who holds under the owner of the soil, and are fit for 
harvesting, or by one whose tenancy is for an uncertain period 
of time, they are regarded, in many respects, as personal prop- 
erty, liable, indeed, to become part of the realty, if the tenant 
voluntarily abandons or forfeits possession of the premises.^ 
And by this principle, where one entered upon land under an 
agreement of the owner to sell it to him, and planted crops, and 
then the land-owner refused to execute his agreement to con- 
vey, it was held that the tenant might claim the crops as person- 
alty .^ Where, during the pendency of a process to foreclose a 
mortgage, the mortgagor let the premises to a tenant who raised 
a crop upon the same, and the crop had been cut and stacked 
upon the land when the premises were sold to foreclose the 
mortgage, and the purchaser at this sale took the crops and 
carried them away, he was held liable in trespass therefor to 
the tenant as owner of the crop.^ Where a tenant in the 
autumn sowed a crop of barley, and in the following spring 
gave up possession to a new tenant, who took charge of the 
crop for him, it was held that a mortgage of the crop by the 
first tenant, while the premises were in possession of his suc- 
cessor, was valid to pass the same.* So, in favor of cred- 
itors, crops fit for harvesting may be levied on as personal 
chattels.^ But where crops were planted during the pen- 
dency of a suit in ejectment to recover the land, and were 
standing upon the land when the plaintiff in the suit took pos- 
session under a judgment in his favor, it was held he became 
thereby entitled to the same as a part of the realty.^ 

6. Trees also, growing on the freehold, may acquire the 
character and incidents of j)ersonal property, if the owner sell 

Waddington v. Bristow, 2 B. & P. 452. So see Craddock v. Eiddlesburger, 2 
Dana, 205 ; Stambaugh v. Yeates, 2 Rawle, 161 ; Dunne v. Ferguson, 1 Hayes, 
540 ; Pattison's App., 61 Penn. St. 294 ; Whipple v. Foot, 2 Johns. 423 ; Green 
t'. Armstrong, 1 Denio, 550 ; Howe v. Bachelder, 49 N, H. 204 ; Owens v. Lewis, 
46 Ind. 488. 

1 Gland's Case, 5 Rep. 116 a; Debow v. Titus, 5 N. J. 128 ; Co. Lit. 55 ; 
Whipple V. Foot, 2 Johns. 418, and 421, n. ; Chandler v. Thurston, 10 Pick. 210. 

2 Harris v. Frink, 49 N. Y. 24, 30. 

8 Johnson v. Camp, 51 HI. 220. * Fry y. Miller, 45 Penn. St, 441. 

* Penhallow v. Dwight, 7 Mass. 34 ; Heard v. Fairbanks, 5 Met. 111. 
® McLean v. Bovee, 24 Wise. 295. 



cii. 1.] NAirui: AM) cLS'^-irK \Tii»N or i:kai, ri;(iiM:i:TV. ]:', 

them to he cut and removed, wltliout a riglit on the part of 
the vendee to oeeiipy the vcndor'n hind for arrowing or hujh 
portiiiir them tliereoii ' So if trees are sohl or ronerved to Im* 
cut and etirried away without any riLdit to keep them frrowini; 
upon tlje hind, and the one who has a ri^ht to the trees dies, 
the i>rop('rty in them iroes to his personal representatives, and 
not to his heirs.* And although the tenant phint trees, they 
may hf regarded as his eliattels, if he has no frechoM estate 
in the premises, and it is done for the purpose of triii-iil.-nif- 
ing and sale, as in the case of nurserymen.^ 

7. The law as to growing trees may he regarded so far 
peculiar as to call for a more extended statement of its rules 
as laid down hy different courts. And much of what is here 
stated may be properly apj)lied to the case of growing grass 
and other j)roducts which are not of annual |)lanting and cul- 
tivation. In the first j)laee, trees which stand wh(jlly within 
the boundary line of one's land belong to him, alth(nigh their 
roots and l)ranches may extend into the adjacent owner's land. 
And such would be the case in respect to the ownershiji of 
the fruit of such trees, though grown upon the branches 
which extend beyond the line of the owners land. An<l tres- 
pass for assault and battery would lie Ijy the owner of the 
tree against the owner of the land over which its branches 
extended, if he prevented the owner of the tree, by personal 
violence, from reaching over and picking the fruit growing 
upon these branches, while standing upon the fence which 
divided the parcels.* But the adjacent owner may lop off the 
branches or roots of such trees up to the line of his land. If 
the tree stand so nearly ujion the dividing line between the 
lands that portions of its body extend into each, the same is 

» Claflin r. Caqienter, 4 Met. 530 ; Smith r. .Surraan, 9 B. & C. 501 ; Stukcly 
r. Butkr, Hoi). 173. S*-e 1 Atk. 175 ; Olmstrnd r. Niks, 7 N. H. 522 ; Lifonln 
Case, 11 Rep. 50; Marshall v. Green, 1 C. P. Div. 35. The limitation in the 
text is made to avoid, in this sta^e of in'iuin', the difficult (juestion of what 
constitutes an interest in lands within the 4th section of the Statute of Frauda, 
29 Car. II. c. 3; post, vol. 3, •599. 

» McClintock's Apjnal, 71 Peiin. St. 365. 

• Millir V. Baker, 1 Met. 27 ; Whitmarsh r. Walker, 1 Met. 813 ; Penton • 
Robart, 2 Fji^t, 88 ; Windham r. Way, 4 Taunt. 816, per ll<>atb, J. 

* Uolfmuu p. Annstroug, 48 N. V. 201. 



14 LAW OF REAL PROPERTY. [BOOK I. 

the property in common of the land-owners. And neither of 
them is at liberty to cut the tree without the consent of 
the other, nor to cut away the part which extends into his 
land, if he thereby injures the common property in the 
tree.^ 

8. Trees growing upon land constitute a portion of 'the 
realty, and pass by a mortgage of the land, and the mortgagee 
could not otherwise sell them to another, than the land itself.^ 
So they cannot be levied on, on a fi. fa. or personal property 
execution.^ And if nursery-trees are planted by the owner of 
the land, they would pass by a mortgage of the land, though 
planted after the mortgage is made.* A different rule would 
apply between landlord and tenant if they were planted by the 
tenant for purposes of tra'de.^ 

Trees cut and lying upon the soil, as well as trees thrown 
down by the wind, would pass with the land as a part of the 
realty. It would be otherwise if the trees had been cut into 
logs or hewed into timber.^ 

Many cases have seemed to treat a sale of growing trees as 
if they were chattels, and as being effectual to pass a property 
in them before they are cut, although not evidenced by a deed. 
But it is apprehended that this doctrine, which, at first thought, 
would seem to be incompatible with the Statute of Frauds, 
may be reconciled by treating such sale, if by parol, as a 
license rather than a grant of an interest in real estate, and 
which, though liable to be revoked, if executed carries the 
property in such of the trees as shall have been severed from 

1 Dubois V. Beaver, 25 N. Y. 123 ; Waterman v. Soper, 1 Lrl. Raym. 737 ; 
Skinner v. Wilder, 38 A^t. 115 ; Lyman v. Hale, 11 Conn. 177; Griffin v. Bixby, 
12 N. H. 454 ; Masters v. Pollie, 2 Roll. Rep. 141 ; Holder v. Coates, Moody 
& M. 112 ; 3 Kent Com. 438. See, on same subject. Dig. 47, 7, 6, 2 ; Inst. 2, 1, 
31 ; Bracton, 10 ; Code Nap. §§ 670, 673. Among the Greeks, by the laws of 
Solon, olive and fig trees might not be planted nearer the owner's line than nine 
feet, and other trees nearer than five feet, in order to guard against this spreading 
of the roots, &c., into the lands of the adjacent owner. 1 Potter's Antiq. 166. 

2 Hutchins v. King, 1 Wall. 53, 59. 
8 Adams v. Smith, Breese, 221. 

* Maples V. Millon, 31 Conn. 598 ; Price v. Brayton, 19 Iowa, 309 ; Adams v, 
Beadle, 47 Iowa, 439. 
^ Price V. Brayton, sup. 
6 Bracket v. Goddard, 64 Me. 309, 313 ; Cook v. Whiting, 16 111, 480. 



CII. I.] NATfUK AND ci \-~r in.vTIDN OF UKAL rHnlMI'TV. 15 

the frcfliold. Sudi a |i;iiul stile nf trees, (ill aetiially jmt- 
fected \>Y a severance of them from the frei-hold, is, moreover, 
to be deemed an executory, and muy be defeated by a eonvey- 
ance of the freehold. Thus, a sale of such trees, beiii^r within 
the Statute of Frauds, must be evidenced by writing:.' And, 
if rejrarded as suflieient to vest an interest in them between 
the parties, and possibly third parties cognizant of the sale 
liaving been made, it would not be of any validity against the 
punhaser of the freehold without notice, but the trees and 
crops W(tuM pass tlien-with.- Hut if, under such sale, the pur- 
chaser has executed the license by which he was permitted to 
cut the trees, the license becomes irrevocable, and the pur- 
chaser may enter and remove them. If it has not been exe- 
cuted, the whole rests in contract, and, so long as the tiujber 
or other product of the soil continues in its natural condition, 
and no act is done by the vendee towards its separation from 
the soil, no property or title thereto jiasses to the vendee. A 
revocation of the license to enter on the land, whether by a 
deed of the freehold or otherwise, does not defeat any valid 
title, or deprive the owner of chattels, that are upon the same, 
of his projierty in or possession of them. But if the contract 
for the sale of the trees be executory only, no title has passed 
to the vendee.^ The same effect, however, of passing property 
in trees, may be accomjtlishcd by conveyance of them by deed 
as growing trees, if done l)y the owner of the freehold. It is so 
far considered a severance of the property in the trees from 
that in the soil, that the vendee may, after that, sell and pass 

• McGregor v. Brown, 10 X. Y. 114 ; Green i*. Armstrong, 1 Denio, 650; Car- 
ringtin r. RooU, 2 M. & W. 248. 

3 Wescott V. Delano, 20 Wise. 514 ; Gardiner ilg. Co. ». Heald, 5 Me. 381 ; 
Drake r. Wells, 11 Allen, 141. 

» Drake v. Wells, 11 Allen, 141 ; Nettleton v. Sikes, 8 Met. 35 ; Douglas 
r. Shumway, 13 Gray, 498 ; Nelson v. Xflson, Q Gray, 335. In the late case in 
England, of Marshall i'. Green, 1 C. P. Di%-. 35, &n oral sale of t>tanding trees wu 
held good as a sale of chattels, and, after part had l«en cut, to vest title to the 
whole, with an irrevocable license to enter and cut the remainder. If such a solo 
is gocKl at all, it is not very appannt why this latter result should not follow ; u 
delivery of part of a lot of chattels sold as one whole vests al>solutely the title to 
the remainder ; and the doctrine of revocable liccns«> obtaining in this country 
would seem a relic of the exploded notion of the insusceptibility of "-•'■'"• -afu- 
rales to pass by an oral sale. But see ante. 



16 LAW OF REAL PROPERTY. [BOOK I. 

title to them by a mere writing, though they have not been 

actually severed from the soil.^ 
[*4] * 9. But if the owner of land grants the trees grow- 
ing thereon to another and his heirs, with liberty to 
cut and carry them away at his pleasure, forever, the grantee 
acquires an estate in fee in the trees, with an interest in 
the soil sufficient for their growth, while the fee in the soil 
itself remains in the grantor.^ And a like effect is produced 
in favor of the grantor by reserving the trees in granting the 
land, giving him a life estate or a fee, according to the terms 
of the reservation.^ But the grant of the use of the timber 
upon land is an incorporeal hereditament, and does not con- 
vey a title to the timber, or to the soil.'^ 

10. On the other hand, things in themselves movable, and 
having the character of personalty, may acquire that of realty, 
by being fitted and applied to use as a part of the realty, 
though, at the time, temporarily disannexed therefrom ; and 
they would pass accordingly with the land, upon a sale thereof, 
or go to an heir or devisee as realty.^ Among these, for illus- 
tration, would be keys of locks upon doors, fire-frames, doors, 
window-blinds, mill-stones, and irons taken out of a mill for 
repair, bolts and other machinery of a flour ing-mill,^ and frag- 
ments of a house destroyed by a tempest.^ So, upon the sale 
of a " saw-mill," with the land on which it stood, the iron bars 
and chains then in it, and used for operating it, passed as a 
part of the realty.^ So by the civil codes of France and Louis- 
iana, many things in their nature movable acquired the char- 

1 Kingsley v. Holbrook, 45 N. H. 313 ; Lansingburgh Bk. v. Craiy, 1 Barb. 
542 ; Warren v. Leland, 2 Barb. 613. See the subject of the sale of trees and the 
like, further considered, x>ost, voL 2, *599, 

2 Clap V. Draper, 4 Mass. 266 ; Knotts v. Hydrick, 12 Rich. 314. 

8 Knotts f. Hydrick, siqh ; Rich v. ZeilsdorfF, 22 Wise. 544; and such a reserva- 
tion enures to the benefit of a prior parol vendee of the trees. Heflin v. Bingham, 
56 Ala. 566. 

* Clark V. Way, 11 Rich. 621. 

6 1 Wms. Ex'rs, 613-615 ; Sweetzer v. Jones, 35 Vt. 317. 

6 Colegrave v. Dios Santos, 2 B. & C. 76 ; Walmsley v. Milne, 7 C. B. N. s. 
115; Liford's Case, 11 Rep. 50; House v. House, 10 Paige, 158; McLaughlin 
V. Johnson, 46 111. 163. 

7 Rogers v. Gilinger, 30 Penn. St. 185. See Dudley v. Foote, 63 N. H. 67. 

8 Farrar v. Stackpole, 6 Me. 154. 



en. I.] NATIUK AM) CLASSIFICATION Of UKAL riJOl'Kin V. IT 

actrr mill i|iialitics of (liinirs iiiiiiinvalilc liv iv-asoji n| tin- u>c8 
forwliicli tlicv wrru (U-stiiicd ami aiijilitd. Aninng tlu-su were 
aniiiKils employed in liitshaiidrv, fat'iiiiii^' iiteiisilH, plants, 
manure, doves in a j»ip'on-lioiise, and all Kueli movniilert an 
the ownei* has permanently attaelie(l to property that is itself 
inniiox ahlc. In England it has lately been held that the owner 
of land has a pro|»erty in the wild pime thereon ralioin- nolt^ 
for the killing of whieh he may have an aetiun airainst a 
8trani;er.' And this rijrht of property attaehes eo ingtaiiti that 
the animal is killed, but not until then : nor does it make any 
dilTerence, in this respeet, whether it is killed by the owner of 
the hind or a trespasser upon it. There can be no pro|H'rty 
in animals/<;ra? natnrce runninj^ wild, so long as they are alive ; 
and if such animal voluntarily pass from the land of one on 
to that of an(»ther, the latter may at once kill it, and thrreby 
aecjuire a property in it.^ Ami, in Louisiana, slaves were con- 
sidered as immovables, and tliey jiartook of the inheritable 
quality of real property in some (tther of the States.^ It was for- 
mi'rly held in \'ir<i:inia that slaves mi.Lrht be conveyed to uses, 
and were within the Statute of Uses.'* Hy the Scotch law, 
materials collected for tho erection of houses are not heritable 
pro|)erty until united to the surface of the earth by actual 
buildinir. I>ut the materials of a buildintr which has been torn 
down with an intent to rebuild the same, retain the character 
of beinir heritable^ thoujrh actually severed fnjm the land.* 
Tlie sul)ject is considered (juitc at length by the court of New 
York in connection with the question wlu-ther the rollinir- 
stock of railroads, such as cars, engines, and tlie like, passed 
under a mortgage of the same as real estate ; and it was held 
that they did. The decisi(ms in New York, until lately, left 
the (luestion doubtful whether the rolling-stock of a railroad 
was fixture or mere jiersonal proi>erty.'^ But the latest re- 

» lUaiL's V. Higgs, 13 C. B. N. 8. 844 ; Kigg v. Unsdale, 1 Ilurlst. &. N. i»l'3. 

a Blaiiis V. Higgs, 11 H. L. Caa. 621, 631MJ41 ; Sutton c. Manby, 1 IaI. Hayni. 
250. 

• Cwh- Nap. art. 524 ; Loui.s. Col. art. 459, 461 ; Chinn c. Rcsposs, 1 Mon. 25. 

• Cu.stU r. Fitzlmgh. .IiirirH. Hop. 72. 
» Krsk. In.st. 20n ; Wmxl, civ. L. 114. 

• Fiiniiem" Iawii Co. r. IIiMidrii'k.Hon, 25 Barl>. 484 ; Stevens r. r,i;!T.il.. i: \\., 
81 Barb. 51tO ; Hoylo r. IMattsburg, &c K, K., 51 Barb. 45, 63. 

v.. I. 1.-2 



18 LAW OF REAL PROPERTY. [BOOK L 

ported case seems to settle the law by declaring it personal 
estate, and no part of the realty.^ But in Illinois it is held 
that rolling-stock, rails, ties, chairs, and spikes, and other like 
materials, brought upon the land of the railroad company, 
whose railroad is covered by a mortgage, if the same is pro- 
cured and designed to be attached to the realty, are to be 
regarded as a part of the realty, though not actually attached 
thereto, and to be held by the mortgage accordingly." The 
subject of the rolling-stock being a fixture to a railroad was 
discussed by the court of the United States, and held to be 
such, in technical language, " so far as in its nature and use 
it can be called a fixture." It is such, not upon any particular 
part of the road, but attaches to every part and portion.^ Hop- 
poles also are a part of the realty, though taken down for the 
purpose of gathering the hops, or piled in the yard ; as well 
as rails of a Virginia fence, or the loose stones of which a 
wall is constructed.* But peat cut for fuel, lying on land, is 
personal estate.^ 

11. A dwelling-house may be the subject of ownership in 
fee, although its owner may have no further interest in the 
land on which it stands than a right to have it remain there. 
So one ma.y have an estate in a single chamber in a dwelling- 
house,^ and may have a seisin of such house or chamber, and 
maintain ejectment therefor, if deprived of its posses- 
[*5] sion,^ * although, if such house or chamber be destroyed, 

1 Hoyle V. Plattsburg, &c. R. R., 54 N. Y. 314. See also Randall v. Elwell, 
52 N. Y. 521 ; People v. Commrs. of Taxes, 101 N. Y. 322 ; post, *542. 

2 Palmer v. Forbes, 23 111. 301 ; M'Laughlin v. Johnson, 46 111. 163. See post, 
*542. See also Strickland v. Parker, 54 Me. 263, 267. 

3 Minnesota Co. v. St. Paul Co., 2 Wall. 609 ; and see note of the reporter, 645- 
649. 

* Bishop V. Bishop, UN. Y. 123, case of hop-poles ; Mott v. Palmer, 1 N. Y. 
564, case of rails of fences ; Goodrich v. Jones, 2 Hill, 142. See also Phillips v. 
Winslow, 18 B. Mon. 431, as to rolling-stock of a railroad ; Y. B. 14 Hen. VIIL 
25, pi. 6, case of a millstone. See Broom's Maxims, 295 et seq. ; Wing v. Gray, 
36 Vt. 261, 269 ; Glidden v. Bennett, 43 N. H. 306 ; Papley v. Paige, 12 Vt. 353. 

5 Gile V. Stevens, 13 Gray, 146. 

« Doe V. Burt, 1 T. R. 701 ; Lowell M. H. v. Lowell, 1 Met. 538 ; Cheese- 
borough V. Green, 10 Conn. 318 ; Co. Lit. 48 b ; Loring v. Bacon, 4 Mass. 576 ; 
1 Prest. Est. 214 ; Humphries v. Brogden, 12 Q. B. 739, 747, 756 ; Rhodes v. 
McCormick, 4 Iowa, 368, 375. 

7 Doe V. Burt, ub. sup. ; Otis v. Smith, 9 Pick. 293. 



' II. I.J .N.VTUKK AND CLAS.SIFK ATION OF liKAL I'UOl'KIlTY. 1 ' 

all int('rc.><t of the owner theroof in tlu* luml un which it >tu h| 
lui^^ht thcrt'hy In' h)st.* 

\'2. Where there are mines, shiteH|uarries, and the like, in 
land, there may he a doiihle owner.ship of nneh land, one <i| 
the mines, the other of the soil, and these may he held h\ dif- 
ferent per.sons hy separate an«l imlependent titles, eaeh havimr 
a fee or les.ser estate in his respective part,'- And an incident 
to the ownership of a mine, where another owns the snrfaee. 
is the duty of keepinir tiu! entranee to it so trnarde*! as not to 
endanirer the safety of the ;iiiini:ils lawfully upon the surface.^ 
The ipiestion in such eases oidinarily is, whether the interest 
of the one elaimin;^ the minerals is that of a corporeal here- 
ditament, or a mere easement in another's land. It th<' jj-rant 
he of the minerals in a particular locality, it carries an estati* 
in the minerals as a part of the realty. From the nature of 
these inheritances, the laws of projierty in them must ho so 
adapted as to jrive to each the enjoyment of what helongs to 
him. While, therefore, the mine-owner may not remove the 
necessary subterranean support of the suiface, the surface- 
owner may not impose additional huidens by artificial struc- 
tures erected thereon, to he sujiporteil hy the mine-owner.* 

V'l. If a corjtoration owns land as a part of its i)roperty, 
and its capital stock he divided Into shares whiih are held 
hy individuals, such lands would he the real estate of the 
artificial j)erson — the corporate body, while the interest of 
the individual stockholders in the same wouM ordinarily be 
personal.'' 

» Stookwcll V. Hunter, 11 Met. 448 ; f^hawmut Bk. r. Baston. 118 Ma.-is. 125. 

* .Stoiijfliton V. U»i>,'h, 1 Tiiunt. 402 ; Hftirisr. HyainR, 5 M. & W. 00; Hnrker 
r. Birkln-ck, 3 Burr. 155(J ; Grueu v. Piitimtn, 8 C'ush. 21 ; Adam v. Briggs Iron 
Co., 7 C'ush. 361. 

» Williiims r. Oroucott. 4 Best & S. 1 10. 

* Harri.s r. Ky.UiiK. 5 .M. A: W. (50 ; Wilkin.son v. Prou.l, 11 M. & W. 33 ; 
Brown v. Robins, 4 Hurl.st. & N. \s6 ; ^\u'\>. Touch. 8t» ; Curtin r. Piuii.-l. 10 
liist, 273 ; Humphries v. BroKtltn, 12 Q. B. 739 ; f'nlihvcll r. Fulton. 31 Pmn. 
St. 475 ; GruW) r. Bjiyiml, 2 Wall. Jr. 81 ; Zinc Co. r. Fmuklinit.' Co., 13 N. J. 
322, 341, the emu: of ii mine of two di.stinct niinvmls. Clenicnt r. Youngnian, 40 
Tcnn. .St. 341. 

' BniJloy p. IloUlsworth. 3 M. A: W. 422 ; Bligh r. Brent, 2 Yo & C. 2rt$ : 
4n)?. k Am. Coq». § 557, 655-658 ; .Mohawk, 4c. R. R. r. Clulo, 4 I'aigi', 31*3 ; 
Toll Bridge r. Osborn, 35 Conn. 7. 



20 LAW OF REAL PROPERTY. [bOOK 1. 

14. If, however, the corporation be created solely for the 
purpose of holding and making use of real estate, the shares 
therein may be real estate. In one case it was so held where 
the object was to make a canal, erect water-works, and the 
like,^ in another to construct a turnpike,^ and in another to 
construct and manage a railroad. ^ But these were clearly 
exceptions, under the construction of the statutes creating 
them, to the general rule applicable to shares in incorporated 
companies. There was an early statute of Massachusetts, 
whereby owners of lands in common were authorized to act 
as a corporate proprietary in the management or disposal of 
the same, but where the interest of each proprietor still re- 
tained its character of realty.* 

15. Manure made upon a farm in the ordinary manner, 
from the consumption of its products, is regarded in 

[*6] this country as * belonging to the realty, and would 
pass with the farm if sold, and may not be removed 
by a tenant in the absence of any special contract to the 
contrary ; ^ especially if it be upon the farm where it was 
dropped.^ But in New Jersey it is held to be personal prop 
erty, and not to pass with the realty as an incident, or part of 
it.'^ The law of New Brunswick coincides with that of New 
Jersey. In North Carolina a tenant for years may claim the 
manure made by him upon a farm as personal property, and 
remove the same upon leaving the premises. But if he leave 
it upon them, he loses the right to remove it.^ In other States 
the circumstances under which it has been made may render 

1 Drybutter v. Bartholomew, 2 P. Wms. 127. 

2 Welles V. Cowles, 2 Conn. 567. 

3 Price V. Price, 6 Dana, 107. 

* Prov. Law, 402; Codman v. Winslow, 10 Mass. 146; Mitchell v. Starbuck, 
Id. 5. 

5 Daniels v. Pond, 21 Pick. 367 ; Lewis v. L3'man, 22 Pick. 437 ; Kittredge v. 
Woods, 3 N. H. 503 ; Lassell v. Pveed, 6 Me. 222 ; Stone v. Proctor, 2 Chip. 
108 ; Parsons v. C'amp, 11 Conn. 525 ; Fay v. Muzzey, 13 Gray, 53 ; Wetherbee 
V. Ellison, 19 Vt. 379 ; Middlebrook v. Corwin, 15 Wend. 169 ; Goodrich v. 
Jones, 2 Hill, 142 ; Sawyer t-. Twiss, 26 N. H. 345 ; Perry v. Carr, 44 N. H. 118 ; 
Wadley V. Janwin, 41 N. H. 519 ; Chase v. Wingate, 68 Me. 204. 

6 Hill V. De Rochmont, 48 X. H. 87 ; French u Freeman, 43 Vt. 93. 

7 Ruckman v. Cutwater, 28 N. J. 581, 

8 Smith wick v. Ellison, 2 I red. 326. 



CM. I.J NATURE AND rLASSIFICATlON OF UK.KL rimi'KKTV. »1 

it personalty. Thus viioro a teamster, owniiifr a lionso and 
stable, sold tlioin with a small yard around Ihem, it was lieM 
not to pass a tpiantity of manure in the eellar <»f the stahle, 
that Iteing personal estate.* So if the manure i)e made from 
hay jiurehased and hrotitrht npnn the promises by a t«'nant, it 
Avill he reirarded as j»er.sonal jirojiorty.- So in Veiinont and 
Ma.ssachu8etts, a sale of mannre hy the owner of the farm 
passes a title to it as personal property, and a suhsecpient 
conveyance of the farm would not j)ass the manure uj>on it, 
or divest the title of the jmrchaser to the sarae.^ The rule in 
Eufiland seems to be so far different in the case of a tenant 
for years, that the way-goine tenant may claim compensation 
for the same by the custom of the country."' 

16. There is a class of chattels which in England are known 
as " heirlooms," which by custom descend to the heir with 
the real estate, and thereby are regarded as belonging to it. 
Among th(>m are articles of household stuff, furniture, <jr im- 
plements.^ But they do not seem to be recognize(l by the law 
of this country. A name attached to an hotel by a tenant is 
not such a fixture that the landlord, (in his leaving it, has an 
exclusive right to use it as the desiirnation of that hotel, al- 
though the name of an hotel may be a trademark in which the 
proprietor has a valuable interest.^ 

17. There are interests in lands which, from their not 
being inheritable, are regarded as chattels, though in their 
nature partaking of the character of the realty, from the pro|>- 
erty itself being fixed and immovable, such as estates for 

» Proctor r. Gilson, 49 X. H. G2. 
■•' Carey v. Fiishop, 48 X. 11. 146. 

* Strong V. Doyle, 110 Ma.s». 92 ; French r. Frceraau, 43 Vt 93. 

* Kobi-rt-s V. F^rker, 1 Cr. & M. 809. 

* Tenues de la Lov, "Heirlooms;" Jacob's Ijiw Diet. "Heirlooms;" 2 F^l. 
Com. 227. Some writers trace the original of "heirlooms" to the implemenlA in 
household economy in which cloth was woven, and hold that from thes** tliey 
were extended to any household articles, such as tables, cnplioards, bedstcAds, 
wainscot, and the like, which by custom went to the heir of the owner at his 
decease, with the house in which it had been used. The term, however, pnuwrly 
applies only to such things as cannot U* n^moved without injur>' to the fr " 
except where other articles are regarded as such by custom. Cowel ; In: 
"Heir-loom ;" Co. Lit. 18 b; 2 Bl. Com. 423 ; Sliep. Touch. 432. 

* Woodward p. Lazar, 21 Col. 443. 



22 LAW OF EEAL PROPERTY. [BOOK I. 

years, which go to executors or administrators npon the death 
of the tenant, rather than his heirs. Nor is their character 
affected by the number of years by whicli their duration is 
measured, except in those States where inheritability is at- 
tached by statute to long terms.^ 

18. The class of articles which may assume the character 
of realty or personalty, according to the circumstances in 
which they are placed and come most frequently under the 
consideration of the courts, is what are called Fixtures. The 
word is used here in its technical sense as " something sub- 
stantially and permanently affixed to the soil," though in its 
nature removable.^ But the old notion of physical attach- 
ment, as the principal test in determining whether a given 
thing is a fixture or not, may now be regarded as exploded. 
"Whether it is a fixture depends upon the nature and char- 
acter of the act by which the structure is put in its place, the 
policy of the law connected with its purpose, and the intent 
of those concerned in the act.^ And while courts still refer 
to the character of the annexation as one element in deter- 
mining whether an article is a fixture, greater stress is laid 
upon the nature and adaptation of the article annexed, the 
uses and purposes to which that part of the building is ap- 
propriated at the time the annexation is made, and the rela- 
tions of the party making it to the property in question, as 
settling that a permanent accession to the freehold was in- 
tended to be made by the annexation of the article.^ If two 

1 Post, *310 ; 1 Atk. Conv. 5 ; 1 "Wood, Conv. xx. 

2 Per Parke, B., 2 M. & W. 459 ; Walker v. Sherman, 20 Wend. 656 ; Bishop 
V. Elliott, 11 Exch. 113 ; Broom's Maxims, 295 et seq. The law of fixtures, as a 
distinct branch of study, is quite modern. The word "fixture " is said not to be 
found in Viner or Bacon, or in the Tei-mes de la Ley. It occurs in Comyns's 
Digest, but only in the addenda. The substance of the law of fixtures, however, 
may be found in these books under diff"erent heads. 3 Alb. L. J. 407. 

8 Meigs's Appeal, 62 Penn. St. 28 ; Quinby v. Manhattan Co., 24 N. J. Eq. 
260. 

* Capen v. Peckham, 35 Conn. 94 ; Voorhees v. McGinnis, 48 N. Y. 282 ; citing 
the text, pi. 20, post. This seems in substance the rule as settled by the weight of 
American decisions. Parsons v. Copeland, 38 Me. 537 ; Hinkley Co. v. Black, 70 
Me. 473 ; McConnell v. Blood, 123 Mass. 47 ; Allen v. Mooney, 130 Mass. 155 ; 
Smith Paper Co. v. Servin, id. 511 ; Southb. Sav. Bk. v. Exeter Works, 127 Mass. 
542 ; Samev. Stevens Co., 130 Mass. 547; Hubbell i;. E. Camb. Sav. Bk., 132 Mass. 



CM. I.] NATrni-: and fLA^PincATiON OF RHAL rRormiv -.'■■; 

adjacent owners of land huild a division fence lx.'t\vcen them, 
"it is a dedication of the materials to the realty," and neither 
can remove it. It would pass l»y a sale of the land as nuiih 
as the soil itself.* 

18 a. As illustrative of whrtlicr the sam<' thin^^s may ho 
fixtures or otherwise, dei)en(nng ujton circumstanecs ; if one 
gets out fencing-stulY upon his farm to be used elsewliere than 



4J7 ; Ariiolil i'. ( 'niw.li r, 81 111. 56; Sei-fjer v. IVttit, 77 Peiin. St. 437 ; MorrU's 
Ai>]Mal, 83 Pemi. St. :<68 ; State Hk, v. Kcicheval, 05 Mo. CS2 ; Thonins r. Oavin, 
7«5 Mil. 72, citing IVsimtch Line v. Bellamy Co., 12 N. H. 205 (an.l holding Uth- 
roj) V. lUake, 23 N. II. 46, 66, to bo controlled by Hurnside v. Tvvichell, 43 N. II. 
390, &c.); Centr. U. H. v. Fritz, 20 Kans. 430 ; Ottumwa Co. v. Hawley, 44 Iowa, 
57 ; llutchins v. Ma.sterson, 46 Tex. 551. It is here held to be a (juestion of inten- 
tion chiilly as ascertained from the adai)tal)ility and actual adaptation of the articles, 
and from the relative situation of the i)arties, and that the mode of annexation Is 
nier<'ly one element towards deteiinining the intent. This intent is a question for 
the jury. Allen v. Mooney, supra. But it is the intent inferable at law from all 
the facta, and not the mere private intent of the i>arty annexing. State Bk. r. 
Kercheval, supra, where a building on blocks was held a fixture and passed to 
a mortgagee l>ecause intended and used as an office for a lirick mill on the premises, 
though the builder meant ultimately to remove it. In Hinkley Co. r. Black, 
supra, the rule laid down in SIcUea v. Centr. Bk., 66 N. Y. 489, that there 
should, besides adaptability and intention, be "actual annexation to the realty or 
something .ippurtenant thereto," is denied, and it is said that annexation may !« 
constructive as well as actual, and this is sustained by great preponderance of 
authority. Cases supra. Thus in New York, in the leading case of Snedeker v. 
Warring, 12 X. Y. 170, 178, a statue held in place only by its own weight was de- 
cided to be a fixture. So D'Eyncourt i-. Gregory, L. R. 3 Eq. 382 ; and the " phy- 
sical annexation " stated in Alvord Co. v. Gleason, 36 Conn. 86, as a requirement, 
was in Stockwell r. CampWU, 39 Conn. 362, 365, held satisfied by annexation by 
mere weight. And the better statement seems to be " pennanent and habitual 
annexation." Strickland r. Parker, 64 Me. 263, 266. In Ewell Fixt. 22, it is said, 
" the clear tendency of modem authorities gives prominence to the question of 
intention to make a permanent accession, &o., and the othei-s derive their chief 
value as evidence of such intention." In the English courts, however, the ques- 
tion of the mode of annexation seems still held of prime importance ; and the testa 
as stated by Parke, B., in Hellawell v. Eastwood, 6 Exch. 295, were (juoted and fol- 
lowed in Turner v. Cameron, L. R. 5 Q. B. 306 ; Holland r. Hodgson. L. R. 7 C. 
B. 328, 337. A rule partly derived from these cases is suggested in Arnold c. 
Crowder, 81 111. 56, as follows, " that articles not otherwise nttflrhed to the land 
than by their own weight are not to be considerecl as part of the land unless the 
circumstances are such as to show that they were intended to be jvirt of the land ; 
and that, on the contran,', an article which is affixed to the land even slightly ia 
to be considered as part of the land, unless the circumstances are such u to show 
that the article was all along intended to continue aa a chattel." 
1 Stoner v. Hunsicker, 47 Peuu. St. 514. 



24 LAW OF REAL PROPERTY. [BOOK I. 

upon the farm on which it is cut and is lying, and then sells 
the farm, it would not pass with the freehold. Whereas, if 
cut to be used upon the farm, it would pass with it.i The 
same would be true of timber, and of stone raised from a 
quarry, and severed from the freehold. But if there be noth- 
ing to indicate where the stone is to be used, and nothing is 
said by the grantor or grantee when the land is conveyed, the 
stone would pass with the land. It would be otherwise if the 
grantor should give notice of the purposes for which the stone 
has been quarried when he conveys the land. Thus, where 
a land-owner quarried and raised a large stone designed for a 
tomb outside of his farm, and sold his land, giving the pur- 
chaser notice of the purposes of the same, it was held that it 
remained the personal property of the vendor, though he suf- 
fered it to remain where it was for thirty-two years, and he 
might maintain trover for a conversion thereof by the owner 
of the farm.2 

19. The persons between whom questions ordinarily arise 
in relation to these are : 1. Vendor and Vendee, including 
Mortgagor and Mortgagee. 2. Heir and Executor. 3. Land- 
lord and Tenant. 4. Executor of Tenant for Life, and Re- 
versioner or Remainder-man. 

20. In respect to the first, little need be added to 
r*7] what has *been said above. If the owner of lands 
provides anything of a permanent nature fitted for and 
actually applied to use upon the premises by annexing the 
same, it becomes a part of the realty, and passes to the pur- 
chaser, though it might be removed without injury to the 
premises.^ This principle was applied to the case of window 

1 Jenkins v. McCurdy, 48 "Wise, 628, where slabs, sawdust, and other refuse 
used for filling are held to be realty, but slabs for firewood personalty as between 
vendor and vendee. So Conklin v. Parsons, 1 Chamll. 240, rails laid along the 
line of a fence, and intended to be used for the fence, are realty, as manifestly so 
appropriated. 

2 Noble V. Sylvester, 42 Vt. 146. 

8 Farrar v. Stackpole, 6 i\Ie. 154, 157 ; Walker v. Sherman, 20 Wend. 636 ; TeafiF 
V. Hewett, 1 Ohio St. 511 ; Buckley v. Buckley, 11 Barb. 43, 2 Smith L. C 
5th Am. ed. 252 ; Woodman v. Pease, 17 N. H. 282 ; Voorhees v. McGinnis, 48 
N. Y. 278, 282 ; Arnold v. Crowder, 81 111. 56, citing the text ; Green v. Phillips. 
26 Gratt. 752 ; Shelton v. Fieklin, 32 Gratt. 727, 735. Also see cases cited ante 
pi. 18. In Fratt v. Whittier, 58 Cal. 126, where vendor of a hotel retained 



CII. I.] NATCUr. AMI <I.A>-IlirATI')N or I'KAL riiKl'KinV. 25 

blinds iiml doiihle windows which the owner of a house had 
priK-iiicd fur it, and Imd in it at the time he Ki)ld it. The 
blimls had ni'v».'i' ln'cn altaeluMl to the biiildinir, but were 
sittinir in thr house at thi- time of the saU'. The double win- 
dows would fit into the cxistinir window-frames, and had been 
used one winter by merely setting them into the frames without 
beinj? fastened in any way, and were ur)t in sight when tho 
sale was nuide. It was held that they had not been so far 
fitted and fastened to the house as to pass with it as fixtures.' 
21. The same rule applies between mortgagor and mort- 
gagee, whether the article in (lue.stiou be annexed to the 
premises before or after making the mortgage.'-' And this 
doctrine was held to apply, although the mortgagor was one of 
a partnership who occupied the i)remi.sc8, and made the attach- 
ment of the fixture to the premises.^ But even a mortgagor 
may make temporary erecti(jns if they are not attached to the 
freehold, and may rcnujve them before the mortgage is fore- 
closed, if he does not depreciate the value of the security as it 
existed when the mortgage was given. In this case, a jiart- 
nership jdaced upon the land of one of the partners a tempo- 
rary building upon bbjcks, and in no otherwise annexed to 
the realty. It was held not to be bound by the mortgage, as 
it would have been if annexed to the soil.* In one case the 

the "furniture, pictures, and carpets, but none of the permanent fixtures," gaa 
fixtures, kitchen-mnge, boiler, and water-tank, were held to pass to the vendee, 
mainly on the intent ini[>lit'd from the enumeration of what was retained. 

1 Peck V. Batchelder, 40 Vt. 233. 

a Gardner v. Finley, 19 Barb. 317; Walnisley r. Milne, 7 C. B. N. ». 115 ; 
jHiat, p. *5i'2 ; Union Bunk i^. Emerson, 15 Mass. 159 ; Winslow v. Merch. Ins. 
Co., 4 Met. 306 ; Roljerts v. Dauphin Bunk, 19 Penn. St. 71 ; Robinson v. Prcs- 
wick, 3 Edw. Ch. 2-1(3 ; Wadl.'igh r. Janvrin, 41 N. H. 514; Bumside r. Twitch- 
ell, 43 N. H. 390 ; Hoskin v. Womhvard, 45 Penn. St. 42 ; I'rnne r. Brighnm, 
11 N. J. Eq. 29, limiting and defining the riK'ht ; Richanlson v. Copeland, 6 
Gray, 536 ; Pierce v. George, 108 Majis. 78. In NVard v. Kilivitrick, 85 N. Y. 413, 
mirrors fastened into a wall and fitted with hat rack.<«, whose r«'niovnl would 
leave the wall unfinished, were held to go with the realty. See also D'Eyncourt 
r. Gregorj-, L R. 3 Eq. 382. 

• Cullwick r. Swindell, L. R, 3 E<]. 249 ; £ur parU Cotton, 2 M. D. k De G. 
725 ; Lynde r. Rowe, 12 Allen, 100 ; Kelly v. Austin, 46 III. 156. So in Thomp- 
son V. Vinton, 121 Mass. 139, the mortgagee's right was held superior to the claim 
of tho mortgagee's jwrtner, who paid in i^irt for the fixturea and look a lease of 
them. 

* Kelly V. Austin, 46 111. 150. 



26 LAW OF REAL PROPERTY. [BOOK L 

court held a steam-engine, put into the mortgaged premises 
by the mortgagor, not to pass under the mortgage, from the 
nature of the property, it being a water-mill, and the engine 
being only placed there in a dry time to supply power.i So 
it is held that if the machinery, though adapted to the mill of 
the mortgagor, is merely so affixed as to be held steadily in 
place, and has nothing in its character special to the mort- 
gagor's business, but could be equally well used in any manu- 
facturing business, it is personalty .^ In New York and some 
other States the doctrine obtains that if the land-owner agrees 
with the vendor of chattels sold to be annexed to the land, 
and actually annexed thereto, that he shall be secured thereon 
until paid, this will give him precedence over a mortgage of the 
land, whether prior or subsequent.^ But in Massachusetts 
and other States, the contrary rule prevails, unless such mort- 
gagee of the land had notice of this agreement when taking 
his mortgage.* This diversity arises, perhaps, from the dif- 
ferent views taken of the mortgagee's interest in these differ- 
ent jurisdictions, — in the former it being held only a lien, while 
in the latter it is regarded as in the nature of an estate.^ So 
if the fixtures are removed by the original vendor by consent 
of the mortgagee, and he subsequently assigns his mortgage, 
it would not pass the fixtures.^ So if the second mortgagee 
has a chattel mortgage only, he is estopped to deny the title 
of the vendor, who had the first chattel mortgage.'' 

22. Also between the heir and executor of the owner of the 



1 Crane v. Brigham, 11 N. J. Eq. 30. 

2 Hubbell V. E. Cambr. Sav. Bk., 132 Mass. 447 ; Robertson v. Corsett, 39 
Mich. 777 ; and see post, § 25. 

3 Mott V. Palmer, 1 N. Y. 564 ; Tifft v. Horton, 53 N. Y. 377 ; Dame v. 
Dame, 38 N, H. 429 ; Eaves v. Estes, 10 Kans. 314 ; Jones v. Scott, id. 33 ; 
Crippen v. Morrison, 13 Mich. 23. But see Morrison v. Berry, 42 Mich. 389. 

* Clary v. Owen, 15 Gray, 322 ; Hunt^-. Bay St. Iron Co., 97 Mass. 279 ; Pierce 
V. George, 108 Mass. 78, 82 ; Southbr. Sav. Bk. v. Exeter Works, 127 JIass. 542 ; 
Quinby v. Manhattan Co., 24 N. J. Eq. 260 ; Smith v. Waggoner, 50 Wise. 155, 
161. So in England. Climie v. Wood, L. E. 3 Exch. 257, and see a^ite, pi. 4 a and 
note. And a vendee of land is bound by like notice. Wilgus v. Gittings, 21 
Iowa, 177. 

6 TifiFt V. Horton, 53 N. Y. 385. 

6 Voorhees v. McGinnis, 48 N. Y. 27'8 ; Bartholomew v. Hamilton, 105 Mass. 239. 

^ Smith V. Waggoner, 50 Wise, 155. 



ril. I.] NATrUE AND CLASSIFICATION OF IJEAL PROPFRTV. JT 

freehold, unless regulated by statute, as is the case in N<'\v 
Yoik.i 

23. Also between dehtiip and creditor, wherr tlir l:itti i- 
levies upon the hnul ot the former for deht.^ 

24. Also between heir or vendee of hushand and his widow 
in respeet to the premises set to her as dower.'' 

25. Amonir the articles to which this rule has been h'ld to 
apjfly, in addition to those above enumerated, have been rolls 
in an iron-mill, thouirh lying loose in the mill ,* steam-engine 
and boiler ; engines and frames designed and adapted to be 
moved and use<l by such engine ;^ dye-kettle set in brick ;^ the 
main mill-wheel and geariiiir of a faet(jry necessary to operate 
it;" a cotton-gin or sugar-mill fixed in its jdace.* A trijn 
hammcr attached to a block set in the ground, the bhjwer of 
a forge, a force-jjump and jiipes for raising water, and shaft- 
ing annexed to the freehold and adai)ted to be used with it, 
are fixtures. So a windlass attached to a butcher shop is a 
fixture.^ Also a bell hung in the cujiola of a barn so as to be 
rung for farm purposes ; and a church bell while hung in a 
temporary frame, pending the rebuilding of the belfry, arc 
fixtures, and will ])ass as such with the realty.*'^ So, where 
one having a mill and steam-engine, with works to be carried 
by it, procured and placed in it a portable grist-mill, which 

• 2 Ki-nt Com. 8th ed. 345 and note ; House v. House, 10 Paige <,h. 15S ; 
Fay V. Muzzey, 13 Gray, 53 ; Wnis. IVrs. Prop. 14. 

' Farrar v. Chauiretete, 6 Denio, 527 ; Goddurd v. Chase, 7 Ma.s8. 432. 

• Powell r. &Ionson Co., 3 Vinson, 459. 

• Voorhis v. Freeman, 2 Wntts & S. 116 ; Hill r. Sewald, 53 Penn. St. 271. 

' Simrksf. State Bank, 7 Blackf. 469; Winslow r. Mi-reh. Ins. Co., 4 Mot. 
306 ; Sands v. PfeitFcr, 10 Cal. 258 ; Walmsley v. Milne, 7 C. B. n. 8. 115 : Voor- 
hees V. McGinnis, 48 N. Y. 278, 285 ; Pierce v. George, 108 Mass. 78, 82 ; Mc- 
Connell v. Blood, 123 Ma*s. 47; Kelly r. City Mills, 126 Mass. 148; Greeu v. 
Phillips, 26 Gratt. 752 ; Ove-s v. Ogelsby, 7 Watts. 106. 

• Nol.le V Bosworth, 19 Pick. 314 ; Union Bank r. Emerson. 15 Mas-s. 150. 
Desi>ntoh Line i-. Bellamy, 12 N. H. 205. So jwtash kettles. Miller r. Plumb, 
6 Cow. 665. 

7 Powell V. Monson Co., 3 Mason, 459 ; Buckley r. Buckley, 11 Barb. 43. 

» Brntton v. Clawson, 2 Strobh. 478 ; Richardson c. Borden, 42 Miss. 71 ; 
Fairis c. Walker, 1 Bailey, 540 ; Hutchins r. Masterson, 46 Tex. 651. 

» McLaughlin r. Nash, 14 Allen, 136 ; Capen r. Peckhain, 85 Conn. 88, 98. 

«> Weston c. Weston. 102 Mass. 514. 519 ; Alvord Co. v. Gleason, 86 Conn. 86 • 
Dabaque Soc. r. Fleming, 11 Iowa, 533. 



28 LATV OF REAL PROPERTY. [BOOK I. 

he fixed firmly and securely in it, but it could be taken out 
without injury, it was held that it passed as a part of the 
realty upon a sale of the latter, as it had been annexed with 
an intention of its being a permanency in carrying on the 
business of the mill.^ 

26. On the other hand, machines, and the like, which 
[*8] may be * used in any other building as well as that in 
which they are placed, such as carding-machines in a 
factory, are ordinarily deemed to be personal chattels, though 
fastened securely to the freehold, if the same can be removed 
without material injury to the freehold. ^ So marble slabs 
laid upon brackets in a house, and mirrors hooked, but not 
otherwise fastened, to the wall, are not fixtures, but furniture, 
and do not pass from vendor to vendee of the realty .^ So a 
steam-engine and boiler set upon frames and portable, a plan- 
ing-machine and anvils resting on the ground but not fastened, 
forge tools and a vice annexed by screws to a bench in the 
shop, and a grindstone in a movable frame, are chattels and 
not fixtures.* And it is stated as a rule of law, in respect to 
mills and manufactories, that in the absence of agreement or 
custom, anything that can be removed without essential injury 
to itself or the freehold is a chattel between a purchaser of 
the realty and a mortgagee of the personalty.^ 

26 a. Before dismissing a topic where the rules of law are 
to be derived from such a great variety of conditions of fact, 
it may not be improper to illustrate the foregoing propositions 
by some further instances. It may be stated, in the first place, 
that whether a thing which may be a fixture becomes a part 
of the realty by annexing it, depends, as a general proposition, 
upon the intention with which it is done.^ Between vendor 

1 Potter V. Cromwell, 40 N. Y. 287-296 ; Stillman v. Flenniken, 58 Iowa, 450. 

2 Cresson v. Stout, 17 Johns. 116 ; Gale v. Ward, 14 Mass. 352 ; Swift v. 
Thompson, 9 Conn. 63 ; Vanderpoel v. Van Allen, 10 Barb, 157. 

8 Western;. Weston, 102 Mass. 514 ; McKeage v. Han. F. I. Co., 81 N. Y. 38. 

* Hubbell V. E. Cambr. Sav. Bk., 132 Mass. 447 ; but Christian v. Dripps, 28 
Penn. St. 271, seems contra. 

5 Wade V. Johnson, 25 Ga. 331. See more fully on this subject, Walker v. 
Sherman, 20 Wend. 636-657 ; Walmsley v. Milne, sup. 

8 Hill V. Sewald, 53 Penn. St. 271 ; Hill v. Wentworth, 28 Vt. 428, 436 ; 
Voorhees v. McGinnis, 48 N. Y. 278, 233 ; Hutchins v. Masterson, 46 Tex. 551. 



Ca. I.] NXTI'KK ASM r-|,\>-n-Ii- \TI()V or nV.W PUnl-riri v. 2^' 

and viuili'c, (jr luortLMiriH- nr mortirap-c, it li:i.-^ Iiciii lnlil lliut 
pJis-lixturt's, iucliKiinp a jrasniiu'trr and apparatus for pcntrat- 
ing gas, would pass with the liouse in which they were in use, 
hut not liotwecn tenant and hmdlord if put in hy the tenant.' 
But it seems now settled that gas-lixtuies other than gas- 
j)iping within the walls arc chattels «)nly;^ though this may 
ho controlled hy the agreement of the parties.' Steam hollers 
and enirines used in a marhle mill, and supjilying the power 
hy which it is carried on, pass as a part of the realty hy a mort- 
gage of the estate hy the owner. But the saw-frames in such 
mill were held to he personal chattels.* So )>latform scales on 
a hay and grain farnj an- fixtures.'' If a steam-engine, for 
instance, l)e placed in a shop or factory to create the moving 
power hy which it is carried on, the engine and shaftinir neces- 
sary to conununicate the motive power to the machinery would 
he as much a part of the realty as a water-wheel, and would pass 
with the realty l>y (h'ed or mortgage.'' The shelves, drawers, 
and counter-taldcs fitted in a store j)ass with the store as 
realty." An ice-chest used in a tavern is not a fixture, al- 
though so large in its dimensions as to render it necessary to 
take it in pieces to remove it from the house. It would he of 
the nature of a hedstead or hook-case in that resj)ect.* But 
a stone sink, set in a frame and used for domestic purj)ose8, 
and placed there hy the owner of the premises, is a part of 
the realty and goes to the heir. But if it is put in l)y a 
tenant, it W(juld Ixjlong to him, and might he removed hy him 
during the teriu.^ A jtortahle furnace for warming a liouse, 

» Hays r. Doane, 11 X. J. 96 ; KocUrw. Kclcr, 31 N. J. Eq. l&l ; Wall r. IliiuU, 
4 Gray. 2:>6 ; Sewell c. Angi-rstfin, 18 I.. T. x. 8. 300. 

« Guthrie r. Jones, 108 Mass. 191 ; Towiu- c. Fiskc, 127 Mass. 125 ; McKeagv 
r. Han. F. I. Co., 81 N. Y. 38 ; Jarcclii v. I'hilh. Soc., 79 IVnn. St, 403 ; Mi-y- 
shain V. Dittri', 89 IVnn. St 506 ; Smith r. Commonwealth, 14 Bush, 31 ; Rogi-rs 
V. Crow, 40 Miss. 91. 

• Funk r. BripiMi, 4 Daly, 359 ; Fratt r. Whitticr, 58 CaL 126. 

• Swietzer r. Jones, 35 Vt. 317 ; Fullam r. Su>arna, 30 Vt. 443. 
» AmoM r. Crowdir, 81 111. 56. 

» Hill c. Wcntworth, 28 Vt. 428 ; Harris r. Ha)-n<% 34 Vt. 220 ; Swc«t2er r. 
Jones, sup. ; Kicluinlson r. Cu|>vlanil, 6 Gray, 536 ; C'limie r. Wootl, L. R. 3 
Exch. 257. 

T Talmr r. Robinson. 36 Bar!.. 4«^3. • Park r. Baker, 7 Allen, 78. 

• Baiuway v. Cobb, 99 Mass. 457. 



30 LA"\T OF REAL PROPERTY. [BOOK 1. 

together \vitli the stove-pipe belonging to the same, was in one 
case held to be a fixture because set in the cellar in a pit dug 
for it.i But in another case a like preparation for the position 
of such a furnace was held not to be decisive ; ^ and undoubt- 
edly the increasing tendency of the law is to hold all house- 
hold conveniences to be chattels.^ Things which may be fix- 
tures often become so, or otherwise, from the circumstance 
that they have been actually fitted for and applied to the realty. 
Thus, a stone procured by the owner of a house for a door- 
step, and brought upon the premises, but never actually ap- 
plied to use, was held to be a chattel not passing vrith the 
realty.* So rolls procured and intended for an iron-mill, and 
brought to it, do not become a part of the realty until fitted 
and actually applied to use.^ Portions of a cider-mill, which 
was in process of repair, had been detached from it at the 
time the land upon which it stood was conveyed by the owner. 
Some of these were laid up for safety ; while others, such as 
the stanchions and tie-chains for the cattle, and the door- 
hinges, were lying loose upon the premises. It was held that, 
notwithstanding their separation, these articles all passed by 
the conveyance as parts of the realty.^ So the saws, crank, 
and mill-gear of a saw-mill form a part of the freehold and 
inheritance.^ 

27. The rule of law as to removing fixtures is most lib- 
eral when applied between tenant and landlord.^ And, as a 
general proposition, whatever a tenant affixes to leased prem- 
ises may be removed by him during the term, provided 
the same can be done without a material injury to the free- 
hold. Nor will a conveyance of the premises by the land- 

1 Stockwell V. Campbell, 39 Conn. 362. 

2 Railway Sav. Inst. v. Bapt. Ch., 36 N. J. Eq. 61 ; and see Towns v. Fiske, 127 
Mass. 123. 

3 Ex parte Sheen, 43 L. T. N. s. 638. 

4 Woodman v. Pease, 17 N. H. 282. 

6 Johnson v. MehafFey, 43 Penn. St. 308 ; In re Pachards, L. R. 4 Ch. App. 
630. See 18 Am. L. Reg, 143-146. 

6 Wadleigh v. Janvrin, 41 N. H. 503. So Patton v. Moore, 16 W. Va. 428 ; 
and see Dubuque Soc'y v. Fleming, 11 Iowa, 533. 

7 Lint V. Wilson, 1 Kerr, X. B. 223. 

8 Elwes V. Maw, 3 East, 38 ; Van Ness v. Pacard, 2 Pet. 137 ; 2 Smith L. C. 
5th Am, ed. 240 ; Crane v. Brigham, 11 N, J. Eq. 30. 



CII. r.] NATURE AND CLASSinCATION OF I'.' ' : ■"• iIM:i:TV. ;]1 

lord iiitcifi'ic with the rijrhts of IIh- truant iu ivhiKJcl to such 
fixtures.* 

*2H. And altlioiitrli some of the Miiudisli cuscs disrriiuinntc 
in this rrsiK'ct hrtwccn Ktructinr.s for tin* juiriiosoH uf trade 
and nianufai'turc and those of aj^rieulture, the American courts 
do not recoL'ni/.e the ilistinction as applicable hi n-."-' A harn, 
however, standing; upon stone piers u|)on the irround,was held 
to form a part of the realty.'' 

2\K Among what are considered as trade fixtures are, vats 
and coppers of a 8oai>-l)oiler,^ green and hot houses of nursery- 
men or irardenei's/' lire-enLMues set up to work a colliery, 
and salt-kettles in salt-works.'' In the case of a lea.se of an 
oyster saloon, it was luM iliat a glass case, a case uf drawers, 
a mirror, and gas-lixtures fastened to the wall hy the tenant, 
were furniture rather than fixtures, and if the landlord clo.sed 
the saloon and refused to let the tenant remove them, he was 
liable in trover for their conversion. IJut it would he other- 
wise with a long counter secured to the lloor. This woulil l)C 
a fixture which the tenant may remove during the term, but 
not afterwards.'^ A boiler and steam-engine, placed l»y a ten- 
ant in leased jtremises, were held to be fixtures, but liable to 
be removed by him or to be attached as the personal property 
of the tenant.** 



» Rajmoiiil r. White, 7 Cow. 319 ; Davis r. BufTuni, 51 Mo. ltV2, 1G3 ; Fuller 
r. Talwr, 39 Mc. 519. 

' 2 Smith L. C. 5th .iVm. cd. 240 ; Van Noss r. I'acard, sup. ; Iloltncs r. 
Trcmiwr, 20 Johns. 29 ; Whiting v. Brastow, 4 Pick. 310 ; Wing r. Gray, 36 Vt 
261, a onsc of hop-poles. 

• Laniioii r. Pmtt. 34 Conn. 517. 

• Poole's C'as.', 1 Salk. 368, an.l noto. » Ponton r. Holwrt, 2 Fjust, 88. 

• Lawrton r. I>awton, 3 Atk. 13 ; P'ord r. Cobb, 20 N. Y. 344. In the case of 
Van Ne.s.s i". Pacnnl, ubi sup., a tenant erected on the UuLsetl pn'tui.H«'9 a woo«len 
dwelling-house, two stories high, with a shed of one storj", having a cellar of 
stone or brick foundation, and a brick chimney foi his business as a dairyman, 
and tlio residence of his family and ser^•ants employed by hin>, and it was held he 
might remove it. In Iowa the court divided ujKjn the question whether a store 
erected by a lessee under a jwirol agnnnient by the les.sor, who was m»)ngngor of 
the premises, was a tnnle fixture. Cowden v. St. John, 16 Iowa, 590. The doc- 
trine of the text was applied to an engino-houac erected U]Kin a stone founda* 
tion, in White's Ap]Kal, 10 Ponn. St. 252. See a\ao Hill r. Sewald, 53 Peuu. SU 
271. 

» Guthrie c. Jones, 103 Mass. 191. » Hey r. Bruucr, 61 Pcnn. St- 87. 



32 LAW OF REAL PROPERTY. [BOOK I. 

30. But if the tenant suffer the fixture erected by him to 
remain annexed to the premises after the expiration of his 
term, or rather of his authorized holding, it becomes at once 
a part of the realty, and he may not afterwards sever it ; ^ and 
a subsequent severance by the landlord will not revest the title 
in the tenant .^ And this rule applies in the case of nursery- 
trees planted by the tenant.^ So where the tenant erected a 
building upon the premises, which was fastened by iron bolts 
to rocks in the ground, and had a machine weighing six tons 
placed upon a stone-and-mortar foundation in the cellar, and 
extending up into the second story, it was held that by aban- 
doning the premises the tenant ceased to have a right to remove 
these as fixtures.* So an assignment by one tenant at will 
to another defeats the right to remove.^ And where a lessee 
for years erected buildings upon the premises, and at the ex- 
piration of his term took a new lease of the premises for years, 
but nothing was said of the buildings, it was held to be an 
abandonment of his right to remove them, and that they be- 
came a part of the freehold, inasmuch as the new lease carried 
the buildings and fixtures, and the lessee, accepting the lease, 
was estopped to claim them as his own.^ Nor will equity 

1 White V. Amdt, 1 Whart. 91 ; Gaffield v. Hapgood, 17 Pick. 192 ; Lyde v. 
Russell, 1 B. & Ad. 394 ; Lee v. Pdsdon, 7 Taunt. 188 ; 2 Smith L. C. 5tli Am. 
ed. 240; Bliss v. Whitney, 9 Allen, 114; Ewell Fixt. 138 ; Davis v. Moss, 38 
Penn. St. 346, 353 ; post, *114 ; and Holmes v. Tremper, 20 Johns. 29; Penton v. 
Robart, 2 East, 88 ; Preston v. Briggs, 16 Vt. 129, &c., so far as they support a 
right to a reasonable time after the term ends, are not law. The case of Burk v. 
Holhs, 98 Mass. 55, sometimes cited to the same effect, proceeded on the special 
agi-eement of the parties. See 2}ost, pi. 30 a. The earlier rule was stated to be that 
the tenant must remove his fixtures before the term ended ; but the modern rule is 
that given in Weeton v. Woodcock, 7 SI. & W. 14, 19 — " that the tenant's right 
to remove fixtures continues during his original term, and during such further 
period of possession by him, as he holds the premises under a right still to consider 
himself tenant." Heap v. Barton, 12 C. B. 274 ; Roffey v. Henderson, 17 Q. B. 
574 ; Mackintosh v. Trotter, 3 M. & W. 184, per Parke, B.; Re Stevens, 2 Lowell, 
496, 500 ; Dubois v. Kelly, 10 Barb. 496 ; Mason v. Fenn, 13 111. 525 ; Overton v. 
Williston, 31 Penn. St. 155 ; Cromie v. Hoover, 40 Ind. 49. 

'^ Stokoe V. Upton, 40 Mich. 581. 

8 Brooks V. Galster, 51 Barb. 196. * Talbot v. Whipple, 14 Allen, 177. 

6 Dingley v. Buffum, 57 Me. 351. 

6 Loughi'an v. Ross, 45 N. Y. 792 ; Watriss v. First ]^at. Bk., 124 Mass. 571; 
Mclver v, Estabrook, 134 Mass. 550. But see Kerr v. Kingsbury, 39 Mich. 150, 
contra. 



CII. I.] NATUUK AND CLASSIFICATION OF RKAL PKOI'KKTY. :V^ 

interposo in favor of a tcnnnt, on tho promul tliat he lias 
made cxiH'nsivc iniprovonicnts on tho estate, and wcurc to 
him the rijrht to enjoy tljem after tljo expiration of the term.' 
But where the tenant was prevented from removing; hiiihlin'^rs 
from the premises hy injimetion from the court, he was hehl 
cntitU'd to a reasonalde time in wliicli to remove them.nftfr the 
injunction was dissolved.'- 

80 rt. Where, however, the termination of ihr i« mini > nw 
ful possession occurs liy the act i»f the hindh)rd, as hy entry 
for forfeituri', more dilliculty arises in <letermininjr the true 
rule. It lias heen said that the ri^dit of the tenant to remove 
fixtures after tlie termination of his hiwful jjossession is alike 
gone, whether it determines hy effluxion of time or hy re- 
entry for forfeiture.*' Thus where a tenant held over after 
the expiration of his term, and became at suiTerancc, it was 
held that he could not remove fixtures after his landlord h:id 
actually entered for the purpose «jf detcrmininir the tenancy.* 
IJut that the tenant's ri<rht to remove is eo imttanti determined 
hy the landlord's re-entry for any forfeiture during the term 
can hardly be considered as settled.'' If, however, the jKiriod of 

» Corning r. Troy Iron Co., 40 N. Y. '219. 

« Goclnmn r. Haii. & St. J. R. U., 45 Mo. 33 ; Mnson r. Fenn, 13 111. 5*25 ; 
Bircher r. Tarkir, 4<) Mo. 113 ; lU Stex-ens, 2 Lowell, 41»0. So where he is 
dclnyed beyond his term by nigotintions with the Ininllord. Hulleu v. Kunder, 1 
C. M. k R. 266 ; Sumner r. Hroiiiilow. 34 L. J. Q. H. 130. 

' Pu^jh r. Arton, L. R. 8 E.|. 626 ; Whijilcy v. Dewey, 8 Cal. 36. 

* U'ader v. Hi)incwoo<l, 5 C. M. N. 8. 546 ; Weeton r. Woodcot-k, 7 M. & W. 
14 ; ILilli.k r. Stolwr, 11 Ohio St. 482 ; 4 C. B. .v. h. 135, Am. ed. note. 

* In ail tho cases prior to Tugli r, Arton, supra, where this effect is given to 
the landlord's re-entry, the tenant's term had already exjiired by fflluxion of time. 
See cases in jm-cediiig notes ; also, Lyde v. Russell, 1 U. & .\d. 3U4 ; Davis r. 
Eyton, 7 Bing. 154; Whijiley p. Dewej*, 8 Cal. 36; or it was terminated by a judg- 
ment in ejectment, ilinshall v. Lloyd, 2 il. &. W. 450 ; Mackintosh r. Trotter, 3 
M. k. W. 184 ; and see Keogh r. Daniell, 12 Wise. 163, whioh pie-sume<l nulico. 
That the same result would occur from the exjiiration of a notice to iinit, (w-oms 
clear, notwithstanding the doubts expressed oiitfr in lie Stevens, 2 IajwcU, 496. 
Id Pugh r. Arton, supra, tliough the term had not run out, yet the bre«t.h was 
that the lessee conveyed a secontl time his term in trust for crwlitors ; and on the 
first buch conveyance, two years l)efore, a yearly tenancy had U-en sulxititute^l for 
the term ; so that there the tenant had notice that he might forfeit his right to re- 
move, but to«jk the risk. But this hardly sustains the position that by a re-i-ntry 
for any brr-ach, whatever the act conditione<l for. the tenant may be divested of ht« 
fixtures without prior notice, and immediately on the Undlord'a entry. 

Vou I.— 8 



34 LAW OF EEAL PROPERTY. [BOOK I. 

the tenant's holding is uncertain, he has a reasonable time 
after it comes to an end in which to remove his fixtures. 
Thus where a lessee of premises for an indefinite period 
erected an ice-house thereon, and the lessor determined the 
lease when the tenant had a large quantity of ice in the house, 
and the tenant sold this as soon and as fast as he could, tak- 
ing nearly two months, and then removed the house which 
was set upon blocks, it was held to be within a reasonable 
time, and that he had a right to remove it.^ And in a later 
case it was held that it did not lie in the power of a tenant, 
after having annexed fixtures to the premises and then mort- 
gaging them, to defeat the title of his mortgagee by surrender- 
ing possession of the premises to his lessor, and his mortgagee, 
after such surrender, might enter and remove them.^ So 
where his agreement with the lessor gives him the right to 
remove fixtures " at the expiration of his holding ; " this im- 
plies within a reasonable time after, as the express provision 
is construed to intend more than the law would imply from 

the mere fact of a tenancy.^ 
[*9] * 31. What has been said as to trade fixtures, &c., 
applies also to those for ornament and convenience, 
such as marble chimney-pieces, grates, stoves, bells and their 
hangings, and the like.* 

32. If fixtures are removed from the freehold to which they 
have been annexed by their owner, they at once resume their 
character of simple chattels.^ 

83. Pews in churches are, in some States, declared by stat- 
ute to be real, in others personal estate. In the absence of 
such statute they partake of the nature of realty, although 
the ownership is that of an exclusive easement for special 

1 Antoni v. Belknap, 102 Mass. 193 ; N. Cent. R. R. v. Canton Co., 30 Md. 
347. 

2 Lond. Loan Co. v. Drake, 6 C. B. N. s. 798, and note to s. c. Am. ed. p. 
811 ; Co. Lit. 338 b. 

8 Stansfeld v. Portsmouth, 4 C. B. N. s. 120 ; and Burk v. Hollis, 98 Mass. 55, 
reallj' proceeds on this ground. 

* 3 Atk.l5 ; Gryraes v. Boweren, 6 Bing. 487 ; 2 Smith L. C. 5th Am. ed. 
241 ; Mott V. Palmer, 1 N. Y. 570 ; Lawton v. Salmon, 1 H. Black. 260, note ; 
ante, pi. 26, and note. 

5 Heaton v. Findley, 12 Penn. St. 304. What has been said above of fixtures 
is rather by way of example than as a summary of the law on the subject. 



ni. I. I NATUKi: AM) CLASSiriCATloN OF ItKAL rROPFRTY. 3o 

purposes, since the general proj)ei'ty in the house usually hc^ 
longs to the parish or corj)oratiou that erected it.' Of the 
same charact<'r is the right of burial in a public huryiug- 
grouud. It is not a property in thf soil, nor to coni|M>nKation 
for (he same, if, upon tin- grunnd having ceased to U* used for 
burial pur|)oS('s, the friends of the persons buried fbenlu :i!i« 
required to remove the renuiins.'^ 

84. It nniy be rcnienilx'red that, in eipiity, money has some- 
times tlic incident.s and attributes of real estate, though it is 
unnecessary, for the purposes of this work, to do more than 
refer to the cases cited below to illustrate and explain the 
proposition.^ In the first of these* there was a devi.se that the 
land of a testator should be sold and the money paid over 
to an alien, and effect was given to the devise, although an 
alien could not take real estate. In the second, money, 
directeil to be laid out in land, was treated as land, and land 
directed to be sold, as money ; and in the last, curtesy was 
nllo\ve(l to a husliand out of money, the proceeds of his wife's 
land which had lieen sold, 

34 a. Kipiity treats that as done wbieli is atrreecl to be done. 
So that money which, according to a will or agreement, is to 
be invested in land, is regarded in cipiity as real estat<\ and 
land which is to he converted into money is to be regarded as 
money accordingly.* And in Massachusetts the courts treat 
a .sura of money as real estate under the following circum- 
stances, viz. : One having mortgaged an estate, an action was 
commenced against him l)y a third party to rocover the seisin 

» Daniel v. Wood, 1 Tick. 10'2; Itlmc.i Ch. v. Bi>low, 16 WemL 28 ; Cny v. 
Baker. 17 Mass. 435 ; Jackson v. IlounesvilK', 5 Mtt. 127 ; Church t>. Wills -.'4 
Penn. St 241). 

' KincMul's Ai)ival, 66 Pi-nn. .«;t. 411 ; Wimlt r. Comi. Rof. Ch., 4 .<?an.lf. Ch. 
471 ; Soliiur v. Trinity Ch., 109 Mnss. 21. Hut then" is sufticifnt lej^il jMivsi-ssion 
to niaintnin trespass quare clatutum agninst a tort-fensor. Mcnghcr r. I>ri-«>coll, 
99 Muss. 281. 

• Craig r. I^eslie, 3 Wheat. 577 ; Fletclu-r r. Ashbumor, 1 Bro. C. C. 497 ; 
Foreman v. Foreman, 7 Ikrb. 215 ; March r. llorrier, 6 Iri'«l. Eq. 524 ; Houghton 
f>. HapgiMxl, 13 rick. 154. So, where, on a mortgage with power of sale, property 
was sold, after the mortgagor's death, for more than the debt, the surjihiM was held 
to be realty, and to go to the mortgagor's heirs. Duuuiug v. Ocean Bank, 61 
N. Y. 497! 

« Seymour v. Freer, 8 Wall. 202, 214. 



36 LAW OP REAL PROPERTY. [BOOK I. 

of the land. The demandant recovered judgment, but was re- 
quired to pay a certain sum of money into court for better- 
ments made upon the estate by the tenant. It was held that 
the mortgagee was entitled to this money, under bis mortgage 
of the real estate.^ 

35. It has sometimes been attempted to define, authorita- 
tively, what is meant by the term " land," or " real estate." 
Thus, in Massachusetts, by statute, " land," and " real es- 
tate," are said to " include lands, tenements, and heredita- 
ments, and all rights thereto and interests therein." But as 
all these statutes refer to the common law for the definition 
of their own terms, it has not seemed expedient to occupy any 
more space in citing them in this connection.^ 

36. In speaking of real estate, the ordinary terms made use 
of are, lands, tenements, and hereditaments ; the first implying 

something that is of a permanent, substantial nature, 
[*10] such * as the soil itself, houses, trees, and the like ; the 

second, tenements, including anything of which tenure 
or a holding may be predicated, if of a permanent nature, in- 
cluding, under the English law, many things besides lands, 
such as franchises, rights of common, rents, and the like ; the 
third, hereditaments, being of a broader signification, and in- 
cluding anything which may by law be inherited.^ Under the 
latter were embraced, among other things, " heirlooms," which 
are mentioned above.* 

37. This broader term, hereditaments, is itself divided into 
two classes, namely, corporeal and incorporeal. The former 
include, as the term implies, what is of a substantial, tangible 
nature.^ The latter is defined to be " a right issuing out of a 
thing corporate (whether real or personal), or concerning or 
annexed to or exercisable within the same." ^ Thus, one may 
grant the future accretions or increments of what he owns at 
the time he makes such grant, as a tenant may the crops 

1 Stark V. Coffin, 105 Mass. 332 ; Whitcomb v. Taylor, 122 Mass. 243. 
3 Mass. Pub. St. c. 3, § 3, pi. 12. 
8 2 Bl. Com. 16 ; Co. Lit. 20 ; 1 Prest. Est. 12, 13. 
< Ibid. 5 9 Bl. Com. 17. 

» 2 Bl. Com. 20 ; Co. Lit. 20 ; Hays v. Richardson, 1 Gill & J. 378 ; Washb. 
Easements, 10. 



CIl. I.] NATUHK AND CLASSIFICATION OF RKAL PROPEItTY. 37 

which will \)v «rro\vin<^ al tlu' end ul" his Ici-iu, or the fruits lo 
be ^n-o\vn iiijoii hiiul which ho owns, and may mortgage tho 
same.' 

SS. And the dilTerent modes of creating or possessing these 
gave rise to another mode of distinguishing them, namely, 
such as lie "in livery'' and such as lii- "in grants The 
early mode nf transfeiring hinds from one to another was l»y 
jtiitting tlu^ j)urchaser in actual possession hy entering upon 
the land, or some eciuivak'ut act, which was called livery of 
seisin — no di'cd heing necessary, in such case, to pass the 
title to the i)urchaser.''^ But as a sale or conveyance of an 
incorporeal thing could not be accomj)anied by any such overt 
act of j)osscssion, it was efTected by means of a deed from the 
vendor to the purchaser, evidencing the fact of his having 
granted the same. This was called a grant, as distinguished 
from livery of seisin. Consequently, corporeal hereditaments 
are said to " lie in livery," incorjtoreal, " in grant." ^ 

39. At the common law the conveyance of a corporeal here- 
ditament was technically a feoffment^ that of an incorporeal 
one a grant.^ But this distinction in England is j)rac- 
tically done * away by the act 8 and 9 Vict. c. lOti, [*11] 
§ '1, whereby all corporeal hereditaments, so far as re- 
<;ards the conveyance of the immediate frcehtjld thereof, are 
deemed to lie in grant as well as in livery.^ 

40. Among the classes of property which come under the 
head of incorj)oroal hereditaments, and at common law lay in 
grant, may be mentioned remainders and reversions dependent 
upon an intermediate freehold estate,^ which will be treated 
hereafter ; and easements, such as a right of way, or passage 
of water through another's land," or of light, and the like.^ 

41. If the nature of the interest, ownershij), or estate which 

1 r. W. & B. R. R. V. Wool per, 61 Poiin. St. 371 ; Grantliain r. Hawl.-y, 
Hob. 132. 

^ Deeds, as a mode of conveyinjij coqiorcal hereditaments, were first rc4uiR*J 
by tlie Statute of Frauds, in the time of Cliarlcs II. 1 Atk. Conv. 399. 

8 1 I'rest. P:st. 13, 14 ; Wins. Real Prop. 195. 

< 1 Law MajT. 279. * Wms. Real Prop. 146. 

1 Uw Mag. 274, 275 ; Doc r. Were, 7 P. & C. 2 43 ; Wms. R«il Prop. 197. 

• 1 Law Mag. 276, 277 ; Hewlins v. Shippam, 5 li. & C. 221. 

8 Cross V. Lewis, 2 B. 6: C. 6SG. 



38 LAW OF REAL PROPERTY. [BOOK L 

may be had in real property, as above described, is considered, 
it will be found that it is divided into vested and contingent, 
executed and executory, according as it is absolute or uncer- 
tain, or the subject of present or future possession and enjoy- 
ment. Without undertaking to discriminate nicely, as some 
writers have done, as to the precise meaning of these terms in 
all their relations, it will be sufficient, in this stage of the 
work, to give their more usual and generally received sense. 
An estate is vested when there is an immediate, fixed right of 
present or future enjoyment. An estate is contmgent when 
the right to its enjoyment is to accrue on an event which is 
dubious and uncertain.^ Executed, applied to estates, seems 
to be used as substantially synonymous with vested, while 
executory, though it relates to the future enjoyment of the 
property, is not necessarily contingent. A contingent interest, 
as above defined, would be executory. So might a vested one 
be, and would be, if future in its enjoyment, so far as relates 
to the possession.^ Though an executory interest may be 
taken to intend a future estate which is in its nature inde- 
structible, like the future interest in an executory devise of 

lands under a last will.^ 
[*12] *42. There is also another familiar classification of 

estates into legal and equitable, whereby it is intended 
to describe such as derive their origin from and are governed 
by the rules of the common law, and those created and gov- 
erned by a system of rules devised and adopted by courts of 
chancery, which will be hereafter explained. It is the former 
of these, however, to which ihis work is to be understood 
chiefly to relate. 

43. In view of a work to which this chapter may be taken 
as introductory, the language of Chief Justice Gibson may 
with propriety be adopted. " The system of estates at the 
common law is a complicated and an artificial one, but still 
it is a system complete in all its parts, and consistent with 
technical reason." * 

1 Fearne, Cont. Eem. 2 ; 1 Prest. Est. 65 ; lb. 6L 

2 2 Bl. Com. 163 ; 1 Prest. Est. 88 ; lb. 62-64 ; Hoff. Leg. Stud. 2.51 ; 
2 Prest. Abs. 118. 

« Wms. Ileal Prop. 241. * Evans v. Evans, 9 Penn. St. 190. 



CIl. II.J FEUDAL TENURES, SEISIN, ETC. 89 



ClIAITKIJ II. 

FEUDAL TENURES, SEISIN, ETC. 

1. lutroilurtory. 

2—1. English liiw, how far applicable here. 

6. Origin of I'uiuJal law. 

6. lutroduction of feuds into England. 

7. Saxon laws as to lands. 

8. Sa.xon tenures referred to in colonial charters. 

9. Allodial lands changed to feuds. 

10. Feudal system in Nomiandy. 

11. Theorj' of feuds. 

12. Investiture of feuds. 

13-15. Feudal services. Fealty. Homage. 

1(3, 17. Proiier and improper feuds. 

18. Feudal oliligation of the lord. 

19. Feudal condition of England after the Conquest. 

20. Change of allodial lands into feuds. 
21, 22. Tenures defined. 

23-25. Manors, how constituted and divided. 

26-33. Feudal services and fruits of tenure. 

34. Tenure in capUc. 

35, 36, Sei-vice free and base, certain and uncertain. 

37-39. Military service. Free and common socage. 

40,41. Villeins and villeinage. Co]iyhold. 

42, 43. Free and common socage tlie tenure of English lands. 

44-49. Alienation of feuds. Attoniment — use of " heirs " in grants. 

50. Law of this countiy as to " heirs " in deeds, &c. 

51-54. Of freehold estates, how created. 

55. Creation of new manors abolished. 

56-59. Subinfeudation, how introduced and applied. 

60-62. Alienation of lands under Magna Charta and Quia Emplorcs. 

63. Devises of lands, when allowed. 

64, 68. Investiture and delivery of seisin, how made. 

69. Feoffment. 

70-72. Seisin. Its theoretical imjiortance, how acipiircd. 

•73-82. Seisin in fact and in law, what and how nc(iuin*d. [*!•*] 

83, 84. Seisin by statute of uses, an<l deliverj' and recording of deeds. 

85-95. Seisin of reversions and remainders, how made. 

96. One dis.seised cannot convey. 

97. Seisin cannot be in a])eyance. 

98. How far tenure is in force in this country. 



■iO LAW OF REAL PROPERTY. [BOOK I. 

1. In order to trace the origin of much of the law relating 
to real property, it is necessary to go back to the period when 
the feudal system was in its vigor in England, from whence the 
American common law was derived, and to examine into some 
of the characteristics of that system and the laws and institu- 
tions to which it gave rise. In this way, too, may be traced the 
origin of many terms in daily use in treating of the ownership 
of real property, and the modes of acquiring and transmitting 
the same.i If, therefore, a considerable space in this work is 
allotted to a system which never prevailed here, and is sub- 
stantially obsolete in most of its parts in England, let it not 
be deemed a matter of mere curious learning, since it serves 
to throw light upon modern jurisprudence, and, while necessary 
in order to understand it, can be learned in no other way. 

2. As a preliminary inquiry, it may be well to understand 
how far the common and statute law of England have been 
adopted as the law of this country. As a general proposition, 
so much of these as was suited to the condition of a people 
like that of the early settlers of this country, was adopted by 
common consent as the original common law of the colonies. 
They brought it with them as they did their language, and 
regarded it as a heritage of inestimable value, by which their 
rights of person and property were to be regulated and se- 
cured.2 Especially was this true in regard to the law of real 

property.^ 
[*15] * 3. To these were afterwards added a few English 

statutes enacted after the emigration to this country .^ 
And the construction put upon those by the English courts by 

1 In the language of Ch. J. Tilghman, in Lyle v. Richards, 9 S. & R. 333, 
"the principles of the feudal system are so interwoven with our jurisprudence, 
that there is no moving them without destroying the whole texture." 

2 Wheaton v. Peters, 8 Pet. 659 ; Pawlet v. Clark, 9 Cranch, 292 ; Patterson 
V. Winn, 5 Pet. 241 ; 1 Kent Com. 343 ; lb. 473 ; Helms v. May, 29 Ga. 124 ; 
Commonwealth v. Chapman, 13 Met. 68, 69 ; Commonwealth v. Leach, 1 Mass. 
60, 61. 

8 Sackett v. Sackett, 8 Pick. 309, 315-318 ; Marshall v. Fisk, 6 Mass. 31 ; Com. 
mon wealth v. Knowlton, 2 Mass. 535. Oliver, J., in Baker v. Mattocks, said : 
"Till the statute De Bonis, tails were fees simple conditional; by that, estates 
tail were created. We brought over the common law and statute with us " 
Quincy Rep. 72. 

* Morris v. Vauderen, 1 Dall. 64 ; Blankard v. Galdy, 4 Mod. 222. 



CII, II. J FEUDAL TENURES, SEISIN, ETC. 41 

tlit'ir luljiidications up to the lime of the Hcvoliiti )ii also lie- 
cainc a i)art of the systoin of colitiiial law wliich prevailed 
lK'n> at the time of the separation of the colonies from the 
mother country, and constituted tlieir common law when they 
became indt-jjendent States. In speaking of adoptin^^ IJritish 
statutes in this country, C'h. J. Marshall says : " Uy adojiting 
them, they hocamc our own as entirely as if they had been 
enacted by the legislature of the State. The received con- 
struction in Hngland at the time they arc admitted to oj)eratc 
in this eciuntry, indeed to the time of our sej)arati(Mi from the 
Jhitish empire, may very projjcrly be considered as accom- 
jtanying the statutes themselves, and forming integral parts of 
them. Hut, however we may respect the subsc(iuent decisions. 
Me do not admit their absolute authority." ^ 

4. It is for this reason that such frequent reference is made, 
while discussing the matter of American law, to English au- 
thorities, both in the form of decided cases and books of estab- 
lished reijutation. 

5. The origin of the feudal system is generally ascribed to 
the (icrman tribes who overran the Western Empire at its 
decline,''^ though Spence and some other writers discover in 
the dominium directum and the dominium utile in lands, under 
the Roman law, the original of that relation of lord and vassal 
which characterized the feudal tenures.^ 

G. Notwithstanding history is so full of the accounts of this 
institution during the Middle Ages, u|»on the Continent, it is 
singular that it is so uncertain to this day when it was first 
introduced into England, and whether even it prevailed there 
at all until after the Conquest, A. D. lOOG. M. Oui/.ot regards 
the feudal age as embracing the eleventh, twelfth, and thir- 
teenth centuries.* 

1 Ciithcart v. Robinson, 5 Pet. 280 ; Baring v. Reeder, 1 Ilcn. & M. 154. 

2 Daliynip. Feud. 1; Co, Lit. 191 a, n. 77; lb. 64 a, n. 1. 

8 1 Spence, Eq. Jur. 30-34 ; Co. Lit. 64 a, n, 1, by Hargrave. See also 
Maine, Anc. L. 300-303; Irving, Civ. L. 201 d scq.; Ersk. Inst. 204, 205, foL ihL 
Till' reader is referred to the following works which treat of this subject. Pome- 
roy's Introd. 248, who controverts the doctrine of Sir. S[)en(;e. 11 Ijiw Map. 
& Rev. Ill, which traces the system to Roman customs and law. 3 fJuizot, Mist, 
Civil (Hohn's ed. ), 20, 21, wlio ascrilx-s it to a German origin. Maine .iVuc. Law, 
22I», 230 ; Maine's Early Hist, of Inst. 171. 

< 3 Hist. Civil, 4. 



42 LAW OF REAL PROPERTY. [BOOK I, 

It has led to much learned discussion, and names of 
[*16] the highest respectability are * found upon both sides 
of the question, whether the Saxons had adopted the 
system of feuds in the tenure of their lands prior to that 
period. Among those who have maintained the affirmative 
are Coke, Selden, Sir William Temple, Dalrymple, Millar, 
Turner, and Spence.^ The writers who maintain the negative 
are, among others, Ch. J, Hale, Craig, Spelman, Camden, Sir 
Martin Wright, Somner, and Blackstone.^ A modern writer 
of much consideration, in speaking of this subject, says : " We 
are in a great degree ignorant of the nature of their (the 
Saxon) laws of landed property. The most profound writers 
are at variance, the one side asserting the law of feuds and 
tenures to have been acknowledged ; the other that it was 
not." ^ It is of no practical importance to settle this disputed 
point ; but probably, as in most other controversies, neither 
party is wholly right. The Saxons were, originally, a German 
tribe, and probably brought with them many of the feudal 
customs that prevailed on the Continent, and among them the 
relation of lord and vassal ; but it would seem that the doctrine 
of tenures in relation to lands, as afterwards understood, never 
did prevail, at least to any considerable extent, prior to the 
Conquest.*^ 

7. Enough, however, of the Saxon polity was subsequently 
wrought into the system of English estates which grew up 
after the Conquest to justify a brief notice of some of its 
peculiarities. A large proportion of their lands were held as 
allodial, that is, by an absolute ownership, without recog- 
nizing any superior to whom any duty was due on account 

1 Co. Lit. 76 b; Seld. Tit. of Hon. 510, 511 ; Dalrymp. Feud. 15 ; 2 Millar's 
Eng. Gov. 20 ; 1 Spence, Eq. Jur. 9; 3 Kent Com. 501, 8th ed., n. 

2 Wright, Ten. 49, 50 ; 2 Bl. Com. 48 ; Spelman, Feud. Chart. 111. See also 
Wms. Pteal Prop. 3, 4 ; 2 Hallam, Mid. Ag. 23 (ed. of 1824); 2 Law Mag. 608. 
Mr. Barrington maintains the negative, Stat. p. 69 ; while Dr. Irving (Civ. L. 
p. 223) considers that the system prevailed to a certain extent among the Saxons, 
but not with the rigor that it subsequently attained. 

2 Coote, Mortg. 4. 

* 2 Sulliv. Lect. 105 ; Id. 113 ; Co. Lit. 191 a, Butler's note ; Wms. Real 
Prop. 4; 2 Hallam, Mid. Ag. 21 ; Dalrymp. Feud. 8, 9 ; Gilb. Stuart, in 1 Sulliv. 
Lect. xxviii. ; 3 Kent, Com. 503, 8th ed. n. The opinion of Lord Coke is en- 
titled to little consideration, if Hargrave is correct. Co. Lit. 64 a, n. 1. 



til. 11. ] FEUDAL TKNURES, SEISIN, ETC. .\:\ 

thcivof.' These lands were alienahle at the will of the 
()\vii('i\ l»y siilc, • iritt,(>r lasit will. Tlicy wci-c, iiKticdxcr, [*17 J 
liable lor his (k'i)ts, and on his death, if nnd('\ ised, dr- 
sceiided to his heirs, and were ei|ually dividctl anudiL' his K<»ns.- 
These allittlial lands, or, as Ihcy wvvv eallrd in Saxon, /»,,' 
landx, niiirht be jirantcd npon sneh tt-rnis and conditions as the 
owner saw lit, by a greater or less I'state, to take elTeet jire.s- 
ently or at a luture time, or on the hai>|ieninj; of any event, in 
which respect, as will hereafter appear, they differed essen- 
tially from fends or lands hehl nnder tiie fendal tennre.*^ The 
mode of convey injr these lands was either by delivering pos- 
session, or some syml)ol of possession, such as a twig or turf; 
or it might be, and was most commonly done, by a writing or 
charter, called a land-hoe, which, lor sale-keej)ing, was gener- 
ally dej)Osite(l ill some monastery.'* 

8. This subject has an importance beyond its mere historical 
interest in two ways: 1st, as explaining some of the changes 
wrought by William the ('oii(|ueror, in respect to the property 
in lands ; 2d, from the circumstance that in the settlement of 
the terms u|)on which the lands in the kingdom were to l)e 
held, Kent obtained more favor than other parts of it, in being 
allowed to retain what were deemed Saxon rights and privi- 
leges. And when the charters of most of these Colonies were 
granted, reference was therein made to the tenure that jtre- 
vailed in Kent, whereby the slavish and military part of the 
ancient feudal tenures was prevented from takiuL'' root in the 
American soil.*^ This subject will be more intelligible when 

> Sulliv. Lect. 265, and n. ; 2 Id. 105 ; Gilh. Ten. 2 ; 2 Bl. Com. 60 ; Wood, 
Civ. L. 76 ; Irving, Civ. L. 210, n., whero the etymology of the term ia variously 
traced. 3 Guiz. Hi.st. Civil (Bohn's cd.), 22. 

2 1 Si)enee, E(i. Jur. 20 ; Sulliv. Lcct. 264 ; 2 Id. 106. 

8 1 S|n'nce, Eq. Jur. 21. 

* 1 Spmce, K<i. Jur. 22, and n. The rentier may be reminded of the sym- 
bolical transfer of land.s among the ancient Israelites, of which there is an 
account in Huth, iv. 7, by the jiluoking off and deliver)- of the vendor's shoe. 
The symliolic form used from a very early period among the Romans was for 
the vendor and vendee to go through with certain forms of expn'ssions in each 
other's presence, which five persons witnes-sed, and a sixth was pn\s«'nt with a 
pair of sralcii, by which, originally, the uncoined cojuyr money of the Homaus 
was weighed. Maine, Anc. L. 204; Thnipji, L. Tracts, 205. 

* 1 Spcuce, Eq. Jur. 105, n. ; 1 Story, Const. 159. 



44 LAW OF REAL PROPERTY. [BOOK I. 

Socage and other tenures are explained. But it may be re- 
membered here, that wherever, after the Conquest, lands were 
devisable by will, it was a relic of the old Saxon law which 
had prevailed at the time of Edward the Confessor.^ 

9. It should be remembered that, prior to the introduction 

of the feudal system, all lands were allodial, but from 
[*18] the * unsettled state of Europe during the tenth and 

eleventh centuries, most of these were voluntarily 
changed into feudal estates by their proprietors, for the pur- 
pose of obtaining the protection of some neighboring baron or 
chieftain by becoming his vassals. 

10. In no part of Europe had the feudal system obtained a 
stronger hold than in Normandy, and it was little more than 
a matter of course that William should have early taken 
measures to introduce it, in all its vigor, into a country 
which he had acquired partly by claim of title, and partly 
by conquest.^ 

11. The theory of this system was, that the property in, as 
well as dominion over all lands, in any country, was originally 
in the king or chief who ruled over it ; that the use of these 
was granted out by him to others, who were permitted to hold 
them upon condition of performing certain duties and services 
for their superior, who theoretically retained the property in 
the land itself.^ The one who had the use of the land by this 
arrangement was said to hold of or under his superior, the 
one taking the name of lord, the other of vassal, and this 
right to hold was designated by the term seisin.'^ This right 
which the vassal acquired to hold his land, having been, at 
first, granted to him as a gratuity or gift of his lord, took the 
name of benefice in the early writers. Benefices were not in 
any sense hereditary. They were holden for tlie life of the 
grantor, or, at most, for the life of the grantee. It was 
through the feebleness of the successors of Charlemagne that 
this benefice gradually transformed itself into the hereditary 
fief. And the doctrine of primogeniture, whereby the entire 

1 2 Sulliv. Lect. 105. 

2 See Maine, Anc. L. 231. 

8 1 Rpence, Eq. Jur. 34, 135 ; 2 Law Mag. 605 ; 2 Bl. Com. 53 ; Ayliff, 442. 
4 1 Spence, Eq. Jur. 135 ; 2 Bl. Com. 53. 



en. II.] FICl'DAL TFXrRE.S, SEISIN, ETC. 45 

fief wont to the olde.st son by iiiln'ritMurc, tlmii;:!) not univfr- 
sal at first, became bo by custoiiiaiy law.' I!iit the nmrc conj- 
ni')u and apt name in jreneral u.se apiihed to it, was fend, 
feud, fief, or fee- The words by whieh tliey were orijfinally 
confern'd — ihiii et coriressi — are still retained as ojM'rativo 
words in modern deeds.'* This hoIdinL'"of lands under another 
was called a trnure, and was not limited to the relation of the 
first or paramount lord and vassal, but extended to those to 
wliom such vassal, within the rules of the feudal law, may 
have parted out his own feud to his own vassals, 
whereby he * became the mesne lord between his va.s- [*19] 
sals and his own or lonl paramount. Tlir)se who held 
directly of the king were called his " tenants in capite^^ or in 
chief.^ 

12. The act of confcrrin<r a feud or fee upon a va.ssal 
was called a feoffment^^ while that by whieh he was in- 
ducted into and admitted to its actual enjoyment was an 
investiture.^ 

13. Every vassal, when invested with the feud, became 
bound to perform some acts, or render some return to his 
lord for the privileges of holding the same, which were called 
the services of his tenure. These might be varied according 
to the whim or caprice of the lord. But there was always 
fealty or an oath of fidelity required from the tenant to the 

» Maine, Anc. L. 230, 232 ; 1 Montesq. 334 ; iwst, •29. 

'■' 1 Sulliv. \ject. 128 ; Tcmies de la Ley, *' Feod ;" 1 Spcnce, Eq. Jur. 34 ; 
Dalr)nip. Feud. 199 ; Wright, Ten. 19 ; lb. 4; Irving, Civ. L. 200, for the ety- 
mology of the word "feud." It is mentioned by Somner, and adopted by the 
autlior last cited, that they took the name of feuds when they began to be 
granted in perpetuity, about A. D. 1000. 

« 2 Bl. Cora. 53. 

« 2 Bl. Com. 59, 60. In a work styled Lihrr (k Antiquis Lcgibua, p. xlix., 
published by the Camden Society, there is an inquisition respecting the manor 
of Xewenham, in which, among ^he franchises belonging to the manor, were 
"view of frunk pledge, infangthief, and gallows, to execute ju<lgmcnt upon him 
who should be taken with stolen gomls within the manor ; also fines for brtaches 
of the assise of bread and beer, and for shedding of bloo<l, with hue and cry 
V ithin the manor." " Also the lord had park and warren, and the water of the 
Thames with the bank." This is referred to by way of illustrating the character 
of the grants by which manors wen- early held. 

' Termes de la Ley, " Feoffment." 

• Wright, Ten. 37. 



46 LAW OF REAL PROPERTY. [BOOK I. 

lord, as incident to all tenures, without which no feud could 
subsist.' 

14. This fealty should be distinguished from the oath of 
allejiiance, which is the obligation which a subject owes to his 
sovereign.^ 

15. If the feud granted was an hereditary one, the vassal 
was required to do homage for the same, which consisted in 
kneeling, in the presence of his fellow-vassals, before his lord, 
and declaring, in the formula prescribed, that he became his 
homo {devenio vester homo'), or man.^ Homage could only be 
done to the seignior himself ; fealty might be made to the 
bailiff of the seignior.^ 

16. If the feud was what was called a proper one, the ser- 
vices to be rendered by the vassal were of a military character, 
and originally of an uncertain duration.^ 

17. Proper feuds were the only ones known to the law at 
first. But in the progress of society and the arts of peace, 
improper feuds, as they were called, arose, where services of 
a peaceful character, such as cultivating the lord's land, an 
annual return of agricultural products, and the like, were 

substituted for those of chivalry .^ 
[*20] * 18. There were certain obligations of a high and 

solemn nature, assumed by the lords on their part to- 
wards their vassals, which will be more fully stated hereafter. 
But among them was that of protecting the vassal in the 
enjoyment of his feud, and supplying him with a new one 
of equal value if deprived of the same, — the latter being the 
origin of the doctrine of " warranty." " It is unnecessary, for 
the purposes of this work, to attempt to settle how and when 
feuds, from being mere gratuities held at the will of the lord, 
became hereditary in the family of the feudatory.^ 

1 "Wright, Tett. 35. For its form, see Termes de la Ley, " Fealty." 

2 Termes de la Ley, "Allegiance." 

8 1 Sulliv. Leet. 223 ; 2 Bl. Com. 54 ; Termes de la Ley, " Homage ; " Co. Lit. 
64 a; Barringt. Stat. 182, for the details of this ceremony. 
4 3 Guizot Hist. Civil (Bohn's ed.), 155, 156. 

6 Wright, Ten. 5, 27, and n. ; 1 Sulliv. Lect. 157. 
8 Wright, Ten. 32, 33. 

7 Wright, Ten. 38 ; 2 Bl. Com. 57 ; 1 Sulliv. Lect. 228. 

* See, on this subject, Dalryrap. Ten. 44 ; 2 Montesq. 334, B. 30, c. 16. 



CH. II.] FKl'DAL TKNURE8, SEISIN, ETC. 17 

ll». Ill the foroiroiiiLr skcldi is jircscntrd the outline of that 
system wliicli \ViHi;iiii the CoiKiucror introduced and estah- 
IisImmI in Kii'jfland in its lull vi^ior, altliouLdi jiarts of it may 
have been in force there pi'ior to the CoiKjuest. Those who 
fouirht on the side oi Harold at the battle of Hastings, he 
alTccti'd to reL'ard as traitors, who by their treason had for 
fcited their lands, and these hr seized uj»on,and after reserving' 
extensive domains to himself, divided them amonj^ his Nor- 
man followers, his men or barons, as his vassals uj)on a strict 
feudal tenure. Nor was it dillicult, l)y a systematic course of 
indiirnity and opj)rcssion, to drive still others to a state of open 
resistance to his power, and thereby to create a pretence for 
seizinir u|)on their lands as rebels, and disj)osing of them in 
the same manner.^ And in order the more effeetually to carry 
out his plans, it is said that he seized upon and destroyed all 
the f>oc8 or written evidences of title which he could lay his 
hand upon, in the various monasteries of the kingdom, in 
which they had been deposited for safe-keeping.^ 

20. But still this could afTect only a part of the lands in 
England ; and as a very large jiroportion of them were, soon 
after the Conquest, held of the crown by feudal tenure, writers 
insist that there was something like a general surrendering 
up by the landholders of their lands, and an accejjting and 
agreeing to hold the same under the king as his vassals. 
The time * and circumstances of doing this arc de- [*21] 
tailed l)y more than one writer. The reason for this 
measure, as stated by Sir Martin Wright, was that " the 
feudal law was at that time the prevailing law in Europe, and 
was then, says Sir Henry Sjiclman, considered to be the most 
absolute law for supporting the royal estate, preserving the 
union, confirming peace, and suppressing incendiaries and 
rebellions." 3 Sir Martin Wright adds, that about the twen- 
tieth year of his reign, William summoned all the great men 
and landholders in the kingdom to London and Salisbury, to 
do their homage and swear their fealty, and that this was 
brought about through the consent of the commune concilium, 

» 2 Sulliv. Lect 115, 117 ; 1 Spence, E.i. Jur. 89, 90 ; Wright, Ten. 62. 

^ 1 Spence, Eq. Jur. 22. 

« Wright, Ten. 63 ; ^laiue, Anc. L. 231. 



48 LAW OF REAL PROPERTY. [BOOK I. 

and he quotes the 52d law of William I. as confirming his state- 
ment.^ Hallam ascribes to this measure of William, by which 
all the landholders of England, as well those who held in chief 
of the king as others, acknowledged fealty to the crown, 
the difference in the condition of the English and French 
aristocracy. The vassals of the latter owed dependence to 
their feudal lords only, and not to the crown.^ Whatever 
may have been the circumstances under which this change 
was wrought, the 52d and 58th laws of William I. are said to 
have effectually reduced the lands of England to feuds, which 
were declared to be inheritable, and from that time the maxim 
prevailed there that all lands in England are held from the 
king, and that they all proceeded from his free bounty.^ The 
lands which had been granted out to the barons — principal 
lands — were again subdivided, and granted by them to sub- 
feudatories to be held of themselves. Thus, every freeholder 
of lands became the permanent feudatory of some superior 

lord, ascending in regular gradations to the head of 
[*22] the State, each, in addition, being bound by the * oath 

of allegiance to the king to which his duties to his 
immediate lord were made to bend. The reciprocal duty 
of fidelity and devotion on the one hand, and protection of 
the person and warranty of the estate on the other, was 
of the essence of this connection.* 

1 Wright, Ten. 52 ; Id. 64-67 ; 2 Sulliv. Lect. 118, 119. The Saxon Chron- 
icle thus graphically describes this process of feudalizing England : " A. D. 1085 
— At mid-winter, the king was at Gloucester with his JVitcm " (council or assem- 
bly), "and he held his court there five days. After this the king had a great 
consultation and spoke very deeply with his TVitan concerning this land, how it 
was held and what were its tenantry." "A. D. 1086 — This year the king wore 
his crown and held his court at Winchester at Easter, and he so journeyed forward 
that he was at Westminster during Pentecost, and there dubbed his son Henry a 
knight. And afterwards he travelled about so that he came to Salisbury at Lani- 
ma-s, and his Witun and all the land-o\vners of substance in England, whose 
vassals soever they were, repaired to him there, and they all submitted to him 
and became his men, and swore oaths of allegiance that they would be faithful to 
him against all others." — Ingram's ed. pp. 289, 290. And see Consuetudines 
KanticE, ed. by Sandys, London, 1851. 

2 2 Hallam, Mid. Ages, 31. 

8 2 Sulliv. Lect. 118-121 ; Wright, Ten. 68 ; Id. 136 ; 1 Spence, Eq. 
Jur. 48. 

* 1 Spence, Eq. Jur. 92, 93 ; Id. 95. 



en. II.] FEUDAL TENURE.^, SEISIN, ETC. !'.» 

21. The reader is now prepared to understand and a|i|il\ 
what formed so important a eircumstancc in resprct to the 
lands of KiiLdand for ii lonir piriod Mftn- the Conquest — the 
doetrine of Tiimres. And allhoiiirh, in the hmjrua^'e of a 
writer, " tentii-f has hceome an empty name," ' so many of 
the terms in daily use ni"e derixcd tinm what it once was, as 
well as so miu'h <jf tiie jrt'nius, it may be said, of tii<' modn-n 
law of real projicrty, that it eannot l^e properly omit fed alto- 
gether in a woi-k like this. 

22. Tennre implied not only the aetnal holdinir l»y <»ne of 
or nndei- another, hut also the terms njion whieh he held his 
lands. These were j)reserihed when the feud was first granted, 
unless it was purely a military one, where the services belong- 
ing to it were implied hy law. And in the course of time 
these terms or services jtrescribed became so various that it 
became a maxim in the law of feuds, Tmor inventiturce eat 

23. The ancient manors were divided and occupied as f(d- 
lows. The loid reserved for liimself a demesne contiguous to 
his castle sullieient for the j»uriK)ses of his house, his cattle, 
A'C. The remainder was divided into four ]»arts. Upon (Jiie 
of these were settled a numl)er of militai-y tenants suflicient 
to do that part of the service whieh was due to his superior 
lord. Another was for the use of his socage tenants, who 
ploughed his lands or returned to him the prescribed quantity 
of corn, cattle, &c. One part was for the lord's villeins, who 
did the servile offices upon the manor, of carrying out manure, 
building fences, <tc., at the pleasure of the lord. The re- 
maining part was reserved as waste land, out of which tiie 
tenants oi the manor sup|>licd themselves with wood, 

<tc., for their tires, fences, and repairing * their l»uild- [* 23] 
ings, and pasturage for their cattle upon what were 
called the commons.'' 

24. It is said that William, when lie first parted his lands 
amonir his followers, gave some as many as seven hundred of 
these manors, others a less nundier, and some less than one 

» 1 Liw Mag. 281. 
2 AViijrht, Tin. iy-21. 

« 2 Sulliv. Lect. 62, 63 ; 1 Spcnce, E-i. Jur. 95 ; Wms. Real Prop. 96. 
VOL. I. — 4 



50 LAW OF REAL PROPERTY. [BOOK 1. 

hundred.^ Those who received six or more were called the 
greater barons ; those who received less, the lesser. ^ 

25. Each of these manors had a domestic court of its own, 
made up of the several vassals of the lord who were freehold- 
ers, and were called the paries curice. But the words co-citizen 
or co-patriot, and tlie like, were unknown to the feudal lan- 
guage.^ These had important parts to perform, and among 
them, when feuds became alienable, of witnessing the cere- 
mony of homage, investiture, and the like, by which lands 
were transferred.* These courts took the name of courts 
Baron, although the lords of the manors in which they were 
held were of no higher rank than gentlemen.^ With the ex- 
ception of those in the Counties Palatine, these courts had but 
a trifling extent of jurisdiction over civil causes, and a limited 
one only over criminal ones.^ 

26. Although services were not necessarily incident to ten- 
ure, for the lord originally might not have required them, or 
might have released them, they were the usual accompaniments 
of \V 

27. Among the fruits rather than services which per- 
tained to military tenures, were relief, wardship, marriage, 
fines, and escheats, and though most, if not all of them, were 
abolished with knight-service by Statute 12 Charles 11. c. 24, 
they require a few words of explanation. 

28. And first as to reliefs. As fiefs were, originally, vol- 
untary gifts, it was common, upon a vassal's first entering 
upon his fief, for him to make a gift of some kind to his lord. 
And this afterwards came to be a duty imposed upon the heir 
upon taking possession of his inheritance.^ This took the 
name of relief, and became exceedingly oppressive in its opera- 
tion.^ It is treated as a feudal service, though, as remarked, 

1 1 Sulliv. Lect. 291, Henry IL retained in his day 1,422 manors in his own 
possession. 2 Lyt. Hist. Henry IL 288, cited 151 No. Westm. Rev. 59. 

2 1 Spence, Eq. Jur. 94. 

8 3 Guizot, Hist.- Civil (Bohn's ed.), 108. 

4 Bl. Com. 54. 5 Herbert, Inns of Court, 36. 

6 2 Hallani, Mid. Ages, 33. 

7 Wright, Ten. 138. 

8 2 Sulliv. Lect. 124 ; Wright, Ten. 15 ; 2 Bl. Com. 56. 

9 Wright, Ten. 99. 



cii. II.] FKUDAL ti:nlui:s, skisin, rrr. ol 

more tcclinii-ally iK'rlia|)S,ii iruit oi' Initial ti'iiun-,* ami 
thou^li oriiriually * ja-culiar to military loads, extended, [• '2\] 
in time, to tenants in socage.^ 

'2\K As feuds were granted u])()n the express or implied 
condition of performing tlic services re(iuired by the nature 
or terms of the tenure j*^ it became customary, after feuds were 
hereditary, for the lord to take the lands into his own custody, 
and provide for the performance of the services during the 
minority and consequent inability of the heir to perform them, 
instead of resuming the feud as having been forfeited.^ 

30. The right to do this was known as wardship, and em- 
braced also the custody of the person of the minor.'' As 
the loi'd was under no obligation to acc<Miiit for the jtrolits 
of the land, it was practii-ally a most oppressive burdt-n upon 
his ward.*' 

31. Growing out of and akin to the last, was the right of 
disposing of his ward in marriage, or, upon a refusal to carry 
Dut the lord's l)argain, the infant forfeited the value of such 
a marriage to the lord. And if the infant married without 
the lord's consent, the forfeiture was double that amount." 

32. After feuds became alienable by consent of the lord, he 
required his vassal to pay a sum of money for the {jrivilege of 
exercising this right, and this was called a fine.^ 

33. The other incident of tenures to be noticed was escheat 
(^eschcoir, to happen), by which, for failure of heirs or corru|>- 
tion of lilood l)y conviction of certain crimes, the feu<l fell 
back int(j the lord's hands ])y a termination of the tenure. 

34. There were other burdens besides these, incident to an 
immediate tenancy under the crown, which arc referred to 
not to enumerate them, but to ex])lain the reason why 

the charters * of Plymouth and other of the American [* 2o] 
colonies, in describing the tenure by which they were 

• Wright Ten. 97. 

3 Dulryinp. Feud. 58 ; Wright, Ten. 104, ascribes it to the 40th law of Wm. I. 

8 2 Diilryinp. Feud. 44. « Id. 45. 

6 Wright, Ten. 90-92. « 2 Bl. Com. 68, 69. 

^ 2 HI. Com. 70 ; Wright, Ton. 97 ; Wms. Real Prop. 97. In one ca*e the 
Eari of Warwick extorted £10,000 for his consent to the marriage of his female 
ward. SuJliv. Lect 248. 

8 2 Bl. Com. 72. 



52 LAW OF REAL PROPERTY. [BOOK I. 

to be held, expressly exclude tliat in capite and "knight-ser- 
vice," the terms of these charters being " to be holden of us, 
our heirs and successors, as of our manor of East Greenwich 
in the County of Kent, in free and common socage, and not 
in capite, nor by knight-service." ^ 

35. There were two kinds of services by which lands were 
held, distinguished as/ree and hase^ihQ free being such as free 
men could perform without being thereby degraded in the scale 
of honor and respect, the base being such as were performed 
by the peasants and persons of servile rank.^ 

36. These were, moreover, divided into certain and uncer' 
tain, according as they were fixed and ascertained in quantity, 
or depended upon contingencies, and liable to be greater or 
less, according to circumstances.^ 

37. Military services were always regarded as theoretically 
the most honorable. But as the arts of peace obtained among 
the people, and it was discovered to be quite as honorable to 
promote the comfort of the citizen and the prosperity of the 
community, as to engage in useless brawls and local quarrels, 
it came to be regarded quite as becoming to the dignity of a 
free man to hold his lands upon condition of his paying 
a certain quantity of corn or cattle, or performing a certain 
amount of rural labor, like ploughing his lord's lands, as to 
be following him, harnessed up in armor, on some madcap 
expedition. And in process of time these came to be the com- 
mon services by which lands in England were held, being, in 
the first place, certain and defined, and second, not military 
in their character.^ 

38. This was what was called socage tenure. The lords 
often compounded with their military tenants and accepted 
the one class of services for the other, till the term free and 
common socage came to define a tenure where the services were 
honorable and certain, and yet not military.^ 

1 Col. Laws of Mass. 3. 2 2 Bl. Com. 62. 

8 Id. 61. 

* 1 Sulliv. Lect. 157. In the reign of Henry II. a pecuniary payment had 
been substituted in the place of the personal attendance of the military vassal, 
and the custom had already prevailed of hiring soldiers of fortune to do the 
service. Stuart's Dis. in 1 Sul. Lect. xxxviii. 

' 1 Spence, Efi- Jur. 52 j Dulrymp. Feud. ch. 2, § 1. 



CII. II.] FEUDAL TKNURES, SEISIV, ETC. 'A 

39. The origin ami otymnlojry of (lio word socage have 
led to much ingenious spccuhxtion, scjnic insisting tliat its 
root was Saxon (^noe), implying liherty or privilege, 
others that it was * derived frcjm gnra, an old Latin [* i'i] 
■word meaning plouyh',^ or 60<\ a French word for 
ploughshare. It is, at any rate, as (»ld as (Ilanvillc, who 
wrote in the time of Henry II., and, as is contended, was in 
use long prior to that.- And, as staled hy more than one 
writer, " the lands in which estates in fee-simjjle were thus 
held appear to have hcen among those which eseajied the 
grasp of the conqueror, and remained in the possession of 
their ancient Saxon proprietors," — which may account for 
its prevalence in Kent before knight-service was abolished.^ 

40. Besides the freemen or freeholders who held by the 
tenure and services ali'cady mentioned, there was a class of 
persons attached to every manor, who were substantially in the 
condition of slaves, who performed the base and servile work 
upon the man(jr for the lord, and were, in most respects, the 
subjects of property, and belonged to him.' Tlicse were 
called villeins, the etymology of which W(jrd is somewhat 
doubtful,'^ and many of them were employed to till tlu." land 
without having any interest in or right to the soil they culti- 
vated. By being permitted to occupy certain parts of the 
manor, and, at last, allowed to do fealty for these, there grew 
up a kind of tenure of lands which was called villeinage. At 
first its services were not only base, such as above described, 
but wholly uncertain, dejiendent on the will of the lord. 
The next step was in case of the more favored ones, to de- 
fine and limit what the amount of these services should be, 
and a tenure thus improved in its character took the name of 
villein socage — the services, though base, being certain!^ As 
a matter of hi.story, more than half the lands in England 

1 2 Bl. Com. 80 ; Wms. Real Prop. 98, nnil n. ; 2 Hallam, Mid. Ages, Pt. 21, 
p. 59 ; Cowel, Interp. "socage " and "soc." 

•^ Wright, Ten. 141, and n.; 1 Si>ence, E.j. Jur. 98 ; Dalrynip. Feud, cL. 2, § 1. 

8 Wms. IJcal Prop. 93 ; 2 Hallam, Jlid. Ages, Pt. 2d, p. 60. 

< Wright, Ti-n. 213; 1 ."^^iK-nce, E.p Jur. 95. 

^ Cowel, Interpret. " Villaino ;" Wright, Ten. 205, n. Some deriving it from 
vilis, othei-s viUn, a country farm. 

« 1 Spence, Eq. Jur. 9i ; Wright, Ten. 212-215; 2 Bl. Com. 61. 



54 LAW OF REAL PROPERTY. [BOOK I. 

were at one time held in villeinage, and the greater part of 
the people were in a state of vassalage connected with such a 
tenure, and, what is remarkable, it owes its extinctior to no 
act of legislation. It gradually yielded to the force of public 
sentiment and the influence of the courts, till it practically 
ceased. The last case of the kind reported was decided in 
the 15th James I.^ And, as stated by Lord Mansfield in Som- 
erset's case, there were but two villeins remaining in all Eng- 
land when tenures were abolished in the reign of Charles 11.^ 

41. Out of this class of tenure grew up the modern copy- 
holds, which, though they form an important branch of the 
English law of real pi-operty, have no direct application in 

the United States. ^ 
[* 27] 42. * Free and common socage is the tenure by which, 
at this day, all the freehold lands in England are 
held.'^ And although theoretically all these lands are held of 
the crown, this could only be through a seisin bond from the 
king as lord paramount, since a tenant in free and common 
socage could not, originally, have held immediately of the 
king.^ 

43. The commissioners upon the English law of real prop- 
erty, while they oppose the idea of abolishing tenure by law, 
speak thus of free and common socage, by which, as they say, 
the great bulk of the land in England is now held : " It has 
all the advantages of allodial ownership. The dominium utile 
vested in the tenant comprises the sole and undivided interest 

1 Noy, 27 ; Barringt. Stat. 272 ; Hargrave, Argument, 11 State Trials, 342. 

2 Lofft, Kep. 8. 

^ Wms. Ileal Prop. 287, 288, and note by Rawle. Some of the above proposi- 
tions — such, for instance, as the alleged origin of copyhold estates — have indeed 
been controverted. But those writers have been followed whose authority has 
been supposed to be reliable, without occupying any more space in what must at 
best be useful, if at all, in the way of explanation and introduction to the more 
practical parts of the work. Lord Loughborough maintained that the tenure of 
copyhold was derived from Germany, and that the copyholder was a freeman, and 
the tenure had no connection with villeinage. Doug. Eep. 679, n. 2. "Wilinot, 
J., on the other hand, insists that copyhold estates were tenancies at will, a mid- 
dle estate between freeholders and villeins. 3 Bur. R. 1543. See also Gilb. Ten. 
5th ed. 197. 

* Wms. Real Prop. 98 ; 1 Spence, Eq. Jur. 98 ; Stat. 12 Char. II. ch. xxiv. 

5 2 Bl. Com. 86 ; Jackson v. Schutz, 18 Johns. 186, per Piatt. J- 



CIl. II.] KHUDAL TKXURES, SEISIN, KTC. ')') 

in tlic soil. r]scli»':it is the uniy iiiatfri;il incitlciit of this ten 
urc bciH'liciiil to the lord, mihI while thni' is an heir or ii 
devisee he can in no way iutiTlere. Tlie tenant in fee-simple 
of soeaue himls can of his own anthority create in it any es- 
tates and interests not contrary to the general rules of law. 
lie can alien it entirely, or devise it to whom he |tleas<'s, and 
the alienee or devisee takes directly from him, so that the title 
is complete without concurrence or priority of the lord." Nor 
has tenure any lonjrer any reference to the profession or rank 
of the tenant, or the purposes to which the lands are ajjplied.^ 

44. To recur to the extent of ownershij* or (piantity of es- 
tate which the vassal might acquire in his feud, it was a part 
of the oriirinal arraniremont between William and his <rrcater 
barons, that they might reward their followers by dividing out 
to them smaller portions of land to be held by their grantees, 
as vassals, in the manner already mentioned.- 

45. For a considerable peri<jd after the Conquest, no vassal 
could alien his feud, although an inheiitable one, with- 
out * consent of his lord, lest he might bring in an [* 28] 
enemy to share in the domain ; nor was it subject to 

his debts until the Stat, of Westm. 2, c. 18, A. D. 1285. On 
the other hand, the lord could not alien his seigniory without 
the consent of his feudatory, which was called an attormnent.^ 

46. But it was as competent for the lord, in parting with his 
feud to a vassal, to prescribe the duration of his ownership and 
to whom it should pass afterwards, as it was to dictate the 
terms and services subject to which he was to hold it. 

47. For this reason, great strictness was observed in con- 
struing and applying the language made use of in making the 
donation of the feud, " nc quis plus donasse presumatur quam 
in donatione expresserit." 

48. Thus if the donation was made to a man and his sons, 
all the sons succeeded to the feud in capite, and upon the 
death of one of them, his share, instead of going to his 

1 Rep. Eng. Comm'rs Real Prop. 6-8. ^ 1 Sjiencc, E>j. Jur. 93, 94. 

8 2 Bl. Cora. 57 ; 1 Spence, Eq. Jur. 137 ; Wright, Ten. 16S ; IJ. 170. This 
attornment was originally jierfomicd in the presence of the jm res curiar, and signi- 
fied the turning over from the former lord to a new one. 1 Suiliv. Lect 227 ; 
Lindley v. Dakin, 13 Ind. 388. 



56 LAW OF REAL PROPERTY. [BOOK I. 

brothers, reverted to the lord.^ So if the gift was to one with- 
out any words of limitation, it was only for such a term of 
time as he could personally hold it, namely, for his own life.^ 

49. But if given to one and his heirs^ it was understood to 
pass in succession, after his death, without being subject to 
his control by any act done by him, to his descendants, who 
were recognized by the feudal law as heirs. All the males at 
first took equally, but afterwards, in analogy to the military 
feuds, the oldest son took the whole, to the exclusion of the 
rest.^ In this way it is not difficult to understand the origin 
and reason of the rule which requires at common law the use 

of the word " heirs " in a deed of grant, in order to 
[* 29] pass a fee or * estate of inheritance in the land granted, 
for which no synonym can be substituted.^ 

50. Such in this respect is the common law of this country. 
But it has been altered by statute in many of the States, giv- 
ing to deeds, in effect, the same construction as has long been 
given to wills, and passing an estate of inheritance where 
such appears from the instrument to be the intention of the 
grantor.^ And in case of a contract to convey lands without 

1 Wright, Ten. 16, 17 ; Id. 151, 152. 

2 Id. 152 ; Wms. Real Prop. 47 ; Co. Lit. 42 a. 

3 2 Bl. Com. 56, 57 ; Wms. Real Prop. 18 ; 1 Spence, Eq. Jur. 175, 176, 3 Rep. 
Eng. Comra'rs Real Prop. 137. Dalrymple, p. 205, states that the right of primo- 
geniture was established by William I. It would seem that primogeniture did not 
obtain in respect to socage lands until the reign of Henry III. Co. Lit. 191 a, 
Butler's note, 77; Maine, Anc. L. 230, 231. 

* 2 Prest. Est. 11, 12. 

s " Heirs," or words of inheritance by statute, are not requisite to create or 
convey an estate in fee in grants or devises in the following States : Alabama, 
Code, 1867, § 1569. Ai'kansas, Rev. Stat. 1837, ch. 31, § 3. California, Hittel 
Codes, 1876, § 6072. Colorado, Gen. L. 1877, ch. 18, § 7. Dakota, Civ. Code, 
1866. Georgia, Code, § 2248; Adams v. Guerard, 29 Ga. 651. Illinois, Rev. Stat. 
1874, p. 275. Indiana, Stat. 1876, ch. 82, § 14. Iowa, Code 1873, § 1929 ; Kar- 
muUer v. Krotz, 18 Iowa, 358. Kansas, Comp. L. 1879, § 1025. Kentucky, Rev. 
Stat. 1834, p. 443. Minnesota, Stat. 1878, ch. 40, § 4. Mississippi, Code, c. 52, 
§ 2285. Missouri, Gen. Stat. 1866, p. 442. Maryland, 1 Gen. L. 133. Mon- 
tana, Rev. Stat. 1879, p. 444, §§ 220, 221. Nebraska, Gen. Stat. 1873, p. 881. 
So in New Hampshire, by judicial construction. Cole v. Lake Co., 54 N. H. 242, 
289. In New Jersey and North Carolina this is limited to wills. New York, 
1 Stat, at Large, 699. Tennessee, Stat. 1851; Cromwell v. Winchester, 2 Head, 
389. Texas, Paschal Dig. 258. Virginia, Code 1860, p. 559. Wisconsin, Rev. 
Stat 1878, § 2206. 



ril. II.] FKl'PAL TKNUUE.S, SEISIN, ETC. 57 

Specifying the estate to be granted, equity always construes it 
to mean a conveyance to the purchaser and his hi'irs.' 

.51. In reference to the dignity and importance <»f tlic 
estates or (piantitics of interest in socage hinds which might 
be created, some were denominalcd rrechoid, and others less 
than frreliold, — the one being sui-h as a freeman might con- 
sistently hold, the other of less duration or amount. The 
first of these must have been, at least, for the life of the 
tenant, though afterwards extended to an estate for the life 
of another, and finally to any estate of uncertain duration, 
not depending upon the will of another, and which might 
last for the term of a life.^ 

52. The word freehold has now come to imply the (piantity 
of estate, rather than the quality of tenure or dignity of person 
of the holder.^ 

53. Such estates as these could originally be created only 
by livery of seisin, and at this day seisin can only be predi- 
cated of what are called freehold estates. Beyond its eiTect 
upon the quality of tenure, as originally understood, 

the quantity or * duration of ownership in lands be- [*30] 
longs to the sul)ject of Estates, and will be further 
treated in that connection. 

54. Although, as has been stated, no vassal could alien his 
feud, under the system established by William I., and although 
in 1290, as will be shown, all restraints \\\)on alienation were 
removed by statute ; in order to understand what has been 
said, as well as the reasons for so decided a change, it is neces- 
sary to recur to some of the steps by which it was brought 
about. The doctrine of tenures proper is thus far to be un- 
derstood as chiefly relating to the lords to whom the manors 
were originally allotted by the crown, and their representa- 
tives, and the vassals to whom these lords had parted out their 
lands, or who had come into tlu-ir place by descent or aliena- 
tion by the lord's consent. 

65. And it may be remarked, in jtassing, that the creation 

1 Tud. Ciu«. 587. 

2 Wms. Real I'rop. 22 ; 1 Prest. Est. 203 ; 2 Bl. Com. 104 ; 1 Uw Ma«. 650. 
Mr. Pomeroy msists that no feud was at any time granted for less than a frwhold. 
Introd. 256. AiUt, p. *18. 

8 1 Law Mag. 551; 2 131. Com. 103 ; 1 Pros. Est. 200; Wms. Real Prop. 22. 



58 LAW OF REAL PROPERTY. [BOOK I. 

of anv new manors was, in effect, abolished by the statute of 
Quia Umptores, passed in the year above mentioned.^ 

56. But it would have been strange if, as these vassals- and 
their descendants became more settled and intelligent, they 
should not have resorted to some means for evading the rigors 
of such a system. This they did with great effect, by means 
of subinfeudation. 

57. The vassal parted out his land to under-tenants, who 
held them of him instead of his lord, and thus created a 
feudal tenure between the tenant and his feoffor, although it 
was not regarded in the light of an alienation by the vassal, 
or transfer of the tenure itself, but as something to which they 
gave the name of subinfeudation, or carving a new and inferior 
feud out of the old one still subsisting.^ 

58. And it is said that such a thing as an absolute sale of 
land for a sum of money paid down, was scarcely to be met 
with. The alienation, such as it was, assumed rather the 
form of a perpetual lease, granted in consideration of certain 

services or rents. The old conveyances almost uni- 
[*31] formly gave the * lands to the grantee and his heirs to 

hold as tenants of the grantor, and his heirs, at certain 
rents and services.^ 

59. This subinfeudation, though it did not relieve the vassal 
from the services he owed to his lord, operated unfavorably 
upon the latter, since the vassal had little inducement to pay 
a fine for the privilege of doing what he could accomplish in 
another way, and it besides seriously impaired his other fruits 
of tenure. The consequence was, when the barons extorted 
the Magna Charta, A. D. 1215, a clause was inserted prohib- 
iting the subinfeudation of an entire feud, and requiring the 
vassal to retain enough of it to secure the services due on 
account of such feud.* 

1 "Wms. Real Prop. 96 ; Van Rensselaer v. Hays, 19 N. Y. 72 ; post, pi. 61 ; 
Kitchen on Courts, ed. 1675, p. 7. For the grounds upon which manons were 
established and manorial rights sustained in New York, see post, vol. 2, p. *524, 
pi. 23. 

2 Wright, Ten. 154, 155, andn.; Dalrymp. Feud. 60 ; 1 Spence, Eq. Jur. 137; 
Van Rensselaer v. Hays, ubi sup. 

8 Wms. Real Prop. 3. 

* Dalrymp. Feud, 60 ; Wright, Ten. 157 ; 1 Spence, Eq. Jur. 137 ; Magna 
Charta, ch. xxxii. 



(11. II.] FEUDAL TENURES, SEI.SIN, ETC. 69 

GO. And yet it i.s said thai tlii.s (•laii.><f in flie Ma^na f'harta 
was the first authoritative jnovi.siou hy hiw for aUowin;.^ the 
free ali(Miatioii of Uinds,' 

Gl. The filial hlow to the custom of suhiiifeudation was ^Mvcn 
hy the Stat. 18 Edward 1., calh'<l the Statute Quid JCtiipton'H, 
j)asscd in 12II0. It was done hy ^nvinjr I'vory frcclidlih;!* a 
right to sell a |)art or all of his lands, and siihstitutfd the 
purchaser in the place of his vendor in respect to the chief 
h)rd of the fee, retjuiriin; him to |»erforui the services wliieh 
had hcen due from his vendor, or, if part only of a feud was 
granted, the services were api)ortioned.''* This statute did 
not extend to the king's tenants, nor did it, as will he jjcr- 
ceived, relieve the lands of the kingdom from the l)urdens of 
tenure.^ 

* G2. Every owner of a fee-simple estate has now [*32] 
full liherty to dispose of it hv deed, since military 
tenures were abolished by statute, Charles II., ])efore men- 
tioned.* 

G3. It may in this connection be ol)scrvcd, that there was 
originally the same restriction as to devising lands hy last will 
as there was to aliening them inter vivos by deed, nor could it 
be done excejtt by the contrivance of uses, until the 32d and 
34th Henry VUL, A. D. 1543.5 

64, Having thus considered the doctrines of tenure and 
alienation of lands, it may be well to inf|uire into the jiiode 
by which tenants acquired their property therein before the 
nature and qualities of their estates are examined. This was 

1 2 SiiUiv. Lect. 283, 289. 

2 Wright, Ten. 160 ; 2 Sulliv. Lect. 289, 290; "Wms. Real Prop. 56 ; Smith, 
Land. & Ten. 5. 

* Wright, Ten. 161 ; Van Rensselaer r. Hays, 19 X. Y. 72-75. This statute 
takes its name from the first words of the first chapter, " Quia cm])lorcs terra nitn." 
Lonl Coke says : " .Many e.vccllent things are enacted by this statute, and oil tho 
doubts upon this (32) chapter of Magna Charta were cleared, l>oth statutes having 
both one end, tliat is to say, for tlie upholding and preservation of the tenures 
whereby the lands were holden, this aot being enacteil ad instantiain magnatum 
rcgni." Coke, 2d Inst. 66. And Hargravo (Co. Lit. 43 a, note 251) says : "In 
fact, the hi.story of our law, with resjiect to the powers of alienation before the 
statute of Quia Erttptorcs, is very much involved in obscurity." 

« Wms. Real Prop. 80. 
» Wright, Ten. 172. 



60 LAW OF REAL PROPERTY. [BOOK I. 

done by what was called an investiture or livery of seisin. It 
was borrowed from the Roman law in the time of tiie empire, 
by which no donation of a feud could be ^od without corpo- 
real investiture or open and notorious delivery of possession 
in the presence of the neighbors.^ The Mexican law required 
a formal delivery of possession of real property, after grant 
made, for the investiture of the title.^ 

65. The mode of doing it was by the lord, or some one em- 
powered by him, going upon the land with the tenant, and 
giving him actual possession by putting into his hand some 
part of the premises, like a turf or twig, in the presence of 
the pares curiae, the peers of the lord's court, who were the 
tenants and vassals of the lord. This was technically livery 
of seisin, — the term seisin having a technical, complex mean- 
ing, and being, in the sense of the law, " the completion of 
the feudal investiture by which the tenant was admitted into 
the feud and performed the rights of homages and fealty." 
He then became tenant of the freehold.^ 

66. If the lands were all in one manor, though consisting of 
different parcels, entry upon one was sufficient as to all, since 
the same pares curice were witnesses in respect to all the lands 
in that manor. But if the parcels were in different manors, 
the entry must be made upon each, that it might be witnessed 

by the pares of each. And this was the origin of an 
[*33] existing rule * of law, and if lands are situated in dif- 
ferent counties, there must be an entry upon those in 
each county to give an actual seisin thereof.* 

67. No deed or writing was necessary to complete the title 
of the tenant, though it was common as a mode of preserving 
the evidence of the transaction, as well as the terms and ser- 
vices upon which he was to hold, to have it written in what 
were called brevia testata, which answered to modern deeds. 
These were authenticated by the seal, and name or mark of 
the lord, attested by some of the pares.^ 

1 1 Speuce, Eq. Jur. 139 ; Green v. Liter, 8 Cranch, 229 ; Thrupp, L. Tracts, 
205 ; Giiterbock, Bract, by Coxe, 114. 

2 Graham v. United States, 4 "Wall. 259. 

8 1 Sulliv. Lect. 142 ; Co. Lit. 266 b, n. 217 ; Steams, Real Act. 2. 

* 1 Sulliv. Lect. 142, 143. 

6 Id. 145 ; 1 Atkinson, Conv. 11 ; 1 Spence, Eq. Jur. 160. 



CII. 11.] I'ELDAL TENURES, SEISIN, ETC. 61 

G8. Another I'uriu uf iit'cuiu|ili.sliin;^ tlie suiuc end, wirn-h 
was sometimes used, Jiiul supplied tiie etyniulotry of the term 
investiture, was for tlie lord to m;ike livery of the land by a 
symbol, such as delivering to the tenant a stall', a ring, or 
a sword, or, what was mure common, putting a robe ujxjn 
him.' 

(>1>. The transfer of tith* and jMJSsession U) the tenant by 
either of these modes constituted a feolVment, a term still re- 
tained to cxju'ess the thing signified, though the f<jrm of ac- 
complishing it has long since given place to modern deeds of 
conveyance. 

70. In the theoiy of the law there was and could be but one 
seisin of lands. He who had that became one of the pares 
curue, did the services, and was recognized, at least for the 
time being, as the rightful owner. If there were several in 
possession, and one of them had the legal title, he aloue had 
the seisin.- 

71. This feudal idea of seisin is so inwrought into the whole 
theory of the law of real estate, and especially of ac(juiring 
and transferring titles thereto, that it is diflficult to understand 
and apjdy the language and reasoning of our own courts u])oii 
the subject, without a somewhat intimate kn(jwledge of what 
the early law was u\Hm the subject. 

* 72. This must serve as an explanation why still fur- [*34] 
ther space is allotted to it in this work, although livery 
of seisin is done away with in England by the 8th and 9th 
Victoria (1845), and, if it ever was made use of iu this coun- 
try as a mode of conveying land, it long since became merely 
symbolical in its nature.* 

1 1 Stilliv. Lect. 143. 

2 Lit. § 701. Cornell v. Jackson, 3 Cush. 506. So essential was liven- of 
seisin to the transfer of lands, that one reason why lands were not devisable 
after they had become alienable was that the devisor, beinp dead when his will 
was to take effect, could not make the necessary livery. 1 Sj>enee, V.i\. Jur. 136. 

' 1 Spence, Eq. Jur. 156, Sullivan, in his treatise on Land Titl«-s, says that 
when tlio country was first settled the ceremony of livery of sei.sin wa.s in use, 
and mentions an instance where the council of Plymouth made livery to Vines 
aiiil Oldham of their patent on Saco River, in 1642, and that from that time the 
ceremony was observed in York, Me., until 1692. Ma.s.sa<husetts dis|iens<Hl with 
thi« form by statute in 1642, and in Plymouth it was veri' early 8U|>erso«led by 
deed acknowledged and recorded. Colony L. p. 85, 86. Judge Kent asserts that 



62 LAW OF REAL PROPEETY. [BOOK L 

73. Seisin, as now understood, is either in fact or in law. 
The first has been ah-eady described. The other occurs, for 
example, where an ancestor or devisor dies leaving his lands 
vacant ; the heir in the one case and the devisee in the other 
are deemed, by the law, to have a seisin, which may at any 
time be converted into a seisin in fact.^ 

74. To constitute a seisin in fact, there must be an actual 
possession of the land ; for a seisin in law, there must be a 
right of immediate possession according to the nature of the 
interest, whether corporeal or incorporeal.^ 

75. Seisin in fact, necessarily implies possession, there being 
"no legal difference between the words seisin and 

[*35] * possession," ^ if the possession be with an intent on 
the part of him who holds it to claim a freehold in- 
terest.^ And if one be in possession of land under color of 
title, any one claiming adversely to him must prove a better 
title, in order to justify disturbing him in his possession.^ 
So one in possession of land, though he is not able to show 

" we have never adopted in this country the common-law conveyance by feoffment 
livery," &c. 4 Kent Com. 84. Judge Sharswood, of Pennsylvania, a high au- 
thority, says, "It is obvious that prior to the act of frauds and perjuries of 21st 
of March, 1772, a parol feoffment with livery was a valid conveyance of lands." 
He quotes the language of Ch. J. Tilghraan : " What would be the effect of a 
feoffment with livery is another question, and I give no opinion on it. It is a 
kind of conveyance out of use ; indeed 1 have never heard of one in Pennsyl- 
vania ; " and adds, " I have, however, seen an early deed for a lot in Philadelphia, 
with an indorsement of livery, and in anotlier chain of title met with a letter 
of attorney to make livery." Fide Smith, Land. & Ten. Am. ed. 6, n. A stat- 
ute of Massachusetts in 1652 declares that a sale of land and giving possession 
shall not be good unless it be by deed, acknowledged and recorded according to 
law. Colony L. 85. In Kentucky, livery of seisin is unheard of. Davis v. Ma- 
son, 1 Pet. 503. In Connecticut it is said, "although in the early settlement of 
this State there were instances where livery of seisin was formally confirmed, none 
of recent date can be found, and it has never been the general practice here to 
accompany a conveyance of land with that ceremony." Per Storrs, J., Bryan v. 
Bradley, 16 Conn. 480. See also 4 Dane Abr. 60, 61, 85. 

1 Stearns, Real Act. 2 ; Co. Lit. 266 b, n. 217; Banister v. Henderson, Quincy, 
123. 

2 Co. Lit. 266 b, n. 217 ; Cowel, Interp. "Seisin;" Cora. Dig. "Seisin," A. 
I & 2; 2 Prest. Abs. 282. 

3 Slater v. Rawson, 6 Met. 439 ; Co. Lit. 153 a. 

* Towle V. Ayer, 8 N. H. 57. But that seisina and ^ossesszo are used " promis- 
cuously," see Giiterbock Bract, by Coxe, 90. 
6 Linthicum v. Ray, 9 Wall. 241. 



cii. II.] ri;ri)AL inNURrs, rftisin, ctc. OH 

any title,' may have trespass against a stranger \\\u) enters 
u|i<jn it. 

7<;. If one enters u|Mtii an estate having title thereto, the 
law jti-esunies the jiosscssion to lie aeeording to his titli-, \vith- 
ont re(|uirinir any (tther prttof of intent.^ So if several persons 
have a nuxid possession, as it is called, of land, and one of 
them has title to it, the seisin l^elongs to him only.-' For 
though tiierc may he a concurrent possession, there cannot he 
a concurrent seisin of lands.* But if one have possession 
without title, an intent therehy to gain the seisin must l»e 
proved in order to give it that effect.'' 

77. If a seisin hy one is proved or admitted, it will he pre- 
sumed to continue till the contrary is shown.^ 

78. No one who has a seisin and title to land will lose his 
seisin l>y any entry hy a stranger, so long as he retains the 
possession.'^ Accordingly, if a man entered and made a feofV- 
ment, the owner heing upon the land, the fei>n'ment was void.^ 

7S>. Xor will one gain a seisin hy occupying lands hy jier- 
mission of the owner. And if he enter hy such permission, 
nothing short of open and uncipiivocal acts of disseisin done 
hy him and known to the owner can deprive the latter of his 
seisin.'-' 

80. In respect to the modes of acquiring actual seisin or 
seisin in fact, if one has a freehold title to lands and enters 
upon any ])art of them, he hy that simple entry gains a seisin 
of all the lands in the possession of the same tenant to which 
he has title in the county. And where one has heen disseised 
and wishes to convey the lands, which he cannot do till he 
regains his seisin, it is the usual way to go upon some part 

' IxHjk V. Norton, 55 Me. 103. 

a Means v. Welles, 12 ilet. 356 ; Barr r. Gratz, 4 WTicat. 213; Green r. Liter, 
8 Crnnch, 229 ; Gardner v. Gooch, 48 Me. 487. 

« Slater v. Haw»on, 6 Met. 439 ; Barr v. Gratz, 4 Wlicat. 213 ; Matlur r. Miu- 
istei-s, &<.-., 3 S. & R. 511 ; Winter r. Stevens, 9 Allen, 526. 

♦ Monroe r. Luke, 1 Met. 459, 466 ; Ijingdon r. Potter, 3 Mass. 21.''>. 

" Brailstreet r. Huntington, 5 Pet. 402; Ewing r. Burnet, 11 iVt. 41, 52. 

• Brown v. King, 5 Met. 173. 

^ 2 Prest. A1.9. 293 ; Slater r. Rawson, 6 Met. 439 ; Anon., 1 Salk. 246. 

' Surry v. Pigott, Popli. 170, 171. 

» Hull r. Stevens, 9 Met. 418; Clark v. McClurc, 10 Gratt. 305. 



64 LAW OF REAL PROPERTY. [bOOK L 

of the premises and there deliver his deed to his vendee, the 
seisin in such case passing with the deed.^ 

[*36] * 81. If a freehold title descends to one as heir, the 
law invests him with the seisin without entry upon the 

land .2 

82. If wild or vacant lands are devised, the law gives the 
devisee a constructive seisin, and he may maintain a writ of 
entry for the same. But if they are otherwise situate, he 
must make an entry, or do some equivalent act to gain a 
seisin.^ 

83. The acts necessary to create a seisin in a grantee of 
lands, using the word grant in its broad modern signification, 
are generally prescribed by statute in this country, or borrowed 
from the English Statute of Uses. Thus, in conveyances by 
bargain and sale, covenant to stand seised, and lease and re- 
lease, forms once in use, under the English Law of Uses, the 
statute created a seisin in the grantee without any formal 
entry, though how this was done will be explained in connec- 
tion with uses.* 

84. As a general proposition, by the law in this country, 
the making, delivery, and recording of a deed of land passes 
the seisin thereof without any formal entry being necessary. 
This is generally by force of the statutes of the several States ; 
in some, such a deed being in terms declared to be equivalent 
to livery of seisin, and in others dispensing with any further 
act to pass a full and complete title.^ 

85. It is somewhat more difficult to make the application 
of the doctrine of seisin clear when it is considered in relation 
to estates of which present possession cannot be predicated. 
Thus, there may be an estate for years in one, and the re^'er- 



^ Proprietors v. Springer, 4 Mass. 416; Stearns, Real Act. 44; Ellicott v. 
Pearl, 10 Pet. 412 ; Spaulding v. Warren, 25 Vt. 316 ; Green v. Liter, 8 Crauch, 
247, 250 ; Giiterbock Bract, by Coxe, 90, 95. 

2 Brown v. Wood, 17 Mass. 68 ; Green v. Chelsea, 24 Pick. 71. 

8 Jackson v. Howe, 14 Jolins. 405 ; Ward v. Fuller, 15 Pick. 185 ; Brown v. 
Wood, 17 Mass. 68 ; Green v. Chelsea, 24 Pick. 71. 

4 See 2 Bl. Com. 237 ; Welsh v. Foster, 12 Mass. 96 ; Thatcher v. Omans, 3 
Pick. 521 ; 4 Greenl. Cruise, 45, n. 

6 4 Greenl. Ci-uise, 45, n. and 47, n. ; Smith, Laud. & Ten. Am. ed. 6, n. ; 
McKee v. Pfout, 3 Dall. 48G. 



(II. II.] rKl'DAL TENURES, SEISIN, vrVC. 05 

sioii ur romaiiultT in ffc in iiiiodicr, or an estate for lifo in 
one with a reversion or romiiintler in fee in anotlier ; and the 
question arises, liow are these several estates affrcted liy the 
matter of seisin, sinee, to repeat, every freeliold nuist have 
a seisin, ami there ean Ite only (jne seisin at a time of an 
estate. 

*8t). In the case of a reversion after an estate for [*37] 
years, there would he no dilVieulty, since the one who 
creates the lease and <rives the tenant i)ossession reserves the 
rest of the estate to himself, and with it the seisin, hecause, 
though a tenant for years holds the possession, he cannot hold 
the seisin of lands. In such case the tenant's possession is 
suhordinatc to the right of the reversioner, and does not dis- 
turb the seisin which he had before he made the lease. 

87. In the case of a vested remainder, inasmuch as the lease- 
hold estate or term, and the remainder, or the estate after its 
exi)iration, are created at one and the same time, and by one 
and the same act, the possession given to the lessee or termor 
enures to the benefit of the remainder-man, under whom he 
is henceforth to hold his estate, the lessor and grantor having 
parted with his entire interest. So that the livery of posses- 
sion to the lessee, in such case, oi)crates as a livery of seisin 
to the remainder-man, and vests it in him, the lessee being, as 
it were, his bailiff to accept livery for him. 

88. If the estate, prior to the reversion or remainder, tech- 
nically called the particular estate, is a freehold, or one for 
life, the seisin, as well as the possession, passes to and stops 
in the tenant of the freehold, because there must be a livery 
of seisin to him to create his own estate, and he must continue 
to hold the seisin. " The fee is entrusted to him." In such 
case, the livery made to the tenant of the freehold enures to 
the benefit of the reversion or remainder, and passes to the 
reversioner or remainder-man instantaneously upon the deter- 
mination of the particular estate. 

89. Such would be the case if there were ever so many 
practicable successive vested estates in remainder, the seisin 
attaching to the estate of each as it successively came to be 
entitled to the possession. 

90. In all these cases, whether the particular estate or term 

VOL. I.— 5 



66 LAW OF REAL PROPERTY. [BOOK 1. 

be for years or for life, the act of livery of seisin is done to 
the one who takes the first estate with the right of pos- 

session.i 
[*38] * 91. But if the reversioner or remainder-man wishes 

to dispose of his interest which the law regards an 
actual estate, though to be enjoyed in future, and if the land 
itself is in the possession of the tenant for years or for life, he 
obviously cannot make an actual livery of seisin to his grantee, 
because to do so he must enter and commit a trespass upon 
the lands. And, besides, as abov.e stated, if the tenant have 
a freehold, the remainder-man or reversioner has no seisin 
which he can pass to a third person. 

92. But, inasmuch as he has the seisin, if the possession be 
in a tenant for years, he may, by consent of the latter, enter 
upon and make effectual livery of seisin of the land, the pos- 
session of the tenant thereafter enuring, so far as the seisin is 
concerned, to the benefit of the grantee.^ 

93. The only way, therefore, by which a reversioner or 
remainder-man can convey his estate, if it be expectant upon 
an estate of freehold in another, or upon an estate for years, 
where the tenant refuses to permit livery of seisin to be made, 
is by a deed of grant without livery, the grantee being thereby 
substituted in respect to the estate to all the rights, includ- 
ing the enuring of the benefit of seisin which belonged to his 
grantor.^ 

94. This may serve to explain the expressions " seisin in 
law of a reversion or remainder," " seised in possession," and 
" seised in reversion or remainder," as well as " vested in 
reversion or remainder," which are found in books treating of 
this subject.^ And without adverting to what constituted, in 
the ancient law, a seisin in law, as contradistinguished from a 
seisin in deed, it is sufficient to say that for centuries the lan- 

1 Spence, Eq. Jur. 156, 157 ; 2 Flint, Real -Prop. 258, 259 ; Id. 572 ; 1 Atk. 
Conv. 16 ; Lit. § 60 ; Co. Lit. 49 ; 1 Law Mag. 274, 275 ; Co. Lit. 266 b, Butler's 
note, 217 ; 2 Bl. Com. 166. 

2 1 Atk. Conv. 16 ; 2 Flint. Real Prop. 572 ; Co. Lit. 48 b, n. 318 ; Id. 
15 a. 

8 1 Atk. Conv. 16 ; 2 Flint. Real Prop. 576 ; 2 Prest. Abs. 283 ; Wms. Real 
Prop. 208. 

* 2 Prest. Abs. 282. 



rii. II.] FEUDAL TrNURn!?, snsiN, ETC. r,7 

ji^iiage of tlic law has hccii (hat a rovcM'sioiicr is"^>iM<i nf 
the reversion, althuu'^h (h'peiidcnt ii|mhi an estate for life. I5v 
this, no more is meant than (hat he has a lixed, vested right 
of future enjoyment of it.' 

1>."). This results from the rule of law, that where lands of 
iidieritanee are earve(l into dilVerent estates, the tenant of the 
freehold in possession ami the persons in remainder or rever- 
sion, are eciually iti the seisin of the fee, except that the 
tenant in possession has the aetnal .seisin of the lands.^ 

I'G. For the reasons already stated, if from any eause one 
should lo.sc his seisin of land, he could not, at common 
law, convey * the freehold thereof, his deed would be [*'il>] 
void if made before he regained it.^ 

07. Xor by the theory of the common law could the seisin 
be in abeyance or suspense ; it must always be in some one 
as freeholder, because of the feudal maxim that tlie freehold 
must always be full, in order that there should be some one 
always ready to do the services of the tenure, and to answer 
to any action of law which any claimant of the lands might 
bring to try the title to the same.^ If one is wrongfully de- 
jirived of his seisin, it is technically called a dis)<fi)<in, the one 
who does the act being a disseisor, ami the one who thereby 
loses the seisin, a disseisee. But how this may be done, and 
the consequences u|)on the rights of the parties, come more 
properly into consideration when treating of the modes of 
ac(piiring titles to lands. 

08. This subject would be manifestly incomplete in a w<iik 
professing to be American in its character, without S(jmethintr 
being .said of tenure as an incident to the ownershij) of lands 
in this country. And although, in the opinion of JudL^* Kent, 
" the (piestion has become wholly immaterial in this country, 
where every real ve-stige of tcnnre is aimihilated" (4th Com. 
25), it cannot but be regarded as an interesting subject of in- 

> Cook V. Hammond, 4 Mason, 467. 48S ; Plowil. 191. 

^ Co. Lit. 266 b, Butler's note, '217 ; Van Rensselaer r. Kearney, 11 How. 
300. 319. 

" Small V. Procter, 15 Mass. 495 ; 4 Dane's Abr. 16. 

♦ 1 .\tk. Cnnv. 11 ; 1 Prest. Est. 255. The latter waa technically called the 
" tenant to the Prcecipc." 1 Prest. Est. 203. 



68 LAW OF REAL PROPERTY. [BOOK I. 

qiiiry as a matter of lepral history, if nothing: more. The nature 
of the title of the crown to the lands of this country in the pos- 
session of the Indian tribes, and in whom the seisin was before 
the extinguishment of their possessory right, have come up 
for discussion in several cases to which the reader is referred.^ 
The grant of lands by the crown to the early colonies, pre- 
scribed as the tenure by which they were to be held of the 
crown, " free and common socage and not in capite by knight- 
service." ^ In some of the charters, at least, there was a res- 
ervation in the nature of rent of a certain part of the 
[*40] gold and * silver ore that should be found in the terri- 
tory granted.^ When these lands were again granted 
out to actual settlers, they, as grantees, by virtue of the stat- 
ute Quia Emptores, would hold, it is to be supposed, directly 
of the king, the lord paramount. But, as has before been 
shown, the holding by common socage in fee did not imply the 
necessary payment of any of the feudal services, except fealty. 
If Massachusetts may be taken by way of illustration, the char- 
ter from the king not only passed the property in the lands of the 
colony, but the right of framing a government over the terri- 
tory. And to the grants and acts of that government all titles 
to real property in Massachusetts, with their incidents and 
qualifications, are to be traced as their source.* In the case 
of Chisholm v. Georgia, Ch. J. Jay says : " Every acre of land 
in this country was then (prior to the Revolution) held medi- 
ately or immediately by grants from the crown." And he 
adds : " From the crown of Great Britain the sovereignty of 
their country passed to the people of it." ^ Great Britain 
relinquished all claim not only to the government but to the 
proprietary and territorial rights of the United States. And 

1 Clark V. AYilliams, 19 Pick. 499 ; Brown v. Wenham, 10 Met. 495 ; Martin 
V. Waddell, 16 Pet. 409 ; Fellows v. Lee, 5 Denio, 628 ; Johnson v. Mcintosh, 8 
Wheat. 543 ; Worcester v. Georgia, 6 Pet. 515 ; Comm'th v. Koxbury, 9 Gray, 
451. 

2 Wms. Real Prop. 6, n. ; 2 Sharsw. Bl. Com. 77 ; 1 Story, Cons. 159 ; Sulliv. 
Land Tit. 35. 

8 1 Storj', Cons. 47. 

4 Comm'th v. Charlestown, 1 Pick. 180 ; Comm'th v. Alger, 7 Cush. 53, 68, 
71, 82. 

<> Chisholm v. Georgia, 2 Dall. 419, 470. 



CII. II.] FKUDAL TKNURES, SEISIN, KTC. 60 

these vested in the several States within which they weir 
situate.^ It is dillieult, in view of these now familiar prin 
eiples, anil of the fart that each State was independent, l)y 
the Kevohition and the treaty of peaee, in its dominion over 
its own tei-ritory, to see when ami how the feudal tenure l»y 
which the hmds had Ijeen indirectly held (d' the cniwii was 
transfei'red to the State. The State was substantially these 
very land-owners acting as a corporate body. Nor, it is be- 
lieved, did the States or cither of them assert the claim of 
tenure or fealty. (,)n the contrary, New York, New Jersey, 
South Carolina, and Michiiran, expressly ne^rative the exist- 
ence of tenure.^ No guardianship in socage has existed in 
New York since 1776, of lands granted by the Statc.^ Ami 
it is now held that the duty of allegiance, the only duty n<jw 
owed to the State, is common to every citizen, and has no 
connection with the land. " lie no more holds his laud by 
that tenure than he does his horse."* And where a grantor 
grants an estate in fee, no reversion or possible reversion by 
escheat or otherwise remains in the grantor. No imjilied 
feudal conditions remain, although conditions made ex]»ressly 
by the parties will be enforced.^' Connecticut, in 17lt3, de- 
clared every proprietor in fee-simj»le of land to have 
* an absolute and direct dominion and projierty in it.'^ [*41] 
Service and feudal tenures were abolished in Virginia 
in 1779." And the courts of Pennsylvania and Maryland 
have declared their lands to be allodial, tenure and service 
having no existence since the Revolution.^ Wisconsin, by 
her constitution, declared all land within the State allodial.'' 

1 Coinm'th i-. Algi-r, 7 Tush. S2, 93 ; Martin v. Waiklell, 10 IVt. 410 ; John- 
son V. Mcintosh, 8 Whcjit. 584. 

■■» Smith, Land. & Ton. Am. cil. 6, n. ; N. Y. Kcv. Stat. 4th e.l. vol. 2, p. 
125, and Kev. Laws, p. 70, § 2-6 ; Cornell v. Lamb, 2 Cow. 652 ; Van Rcussclacr 
V. Mays, 19 N. Y, 91, 92 ; 1 Rt-v. Stat. 718, § 3. 

' Coonitw V. Jackson, 2 Wend. 155. 

* Van Ucns.sclaer v. Smith, 27 Barb. 157. 

^ Van Rensselaer v. Dennisou, 35 N. Y. 393. 

' Rev. Laws, 1849, \\ 454. 

' Acts of Virginia, 1785. 

» Desilver's Estate, 5 Rawle, 111-113 ; Matthews v. Ward, 10 Oill & T. 443 ; 
New Orleans v. United .States, 10 Peters, 6G2, 717 ; CooiK-r, Just, note 455. 

» Rev. Stat. "Wise. 1849, art. 1, § 14. 



70 LAW OF REAL PROPERTY. [BOOK I. 

Judge Cooper, in liis notes upon Justinian's Institutes, says : 
'• Our (Pennsylvania) tenure being free of any suit or service but 
what the State, that is the great mass of the citizens, imposes 
by common consent, seems to be allodial" (p. 455). A writer 
in the American Jurist, in speaking of the North-Western Ter- 
ritory covered by the Ordinance of 1787, says : " The doctrines 
of tenure do not here exist even in theory " (vol. 11, p. 94). 
And Judge Story says : " Strictly speaking, therefore, there 
has never been in this country a dependent peasantry. The 
yeomanry are absolute owners of the soil." ^ It is neverthe- 
less true that every man holds his estate, however absolute his 
property therein, subject not only to the right of eminent do- 
main,^ but to the right of the government to control the use 
of it by such rules and limitations as the public good requires;^ 
though it is apprehended this is not a feudal burden in its 
character. Yet writers of high authority maintain that, theo- 
retically at least, there is a tenure in this country whereby 
every man holds his lands of the State, as they did, before the 
Revolution, of the crown, and among these is Judge Sharswood 
of Philadelphia, who finds evidence of this, among other 
things, in the forms of conveyances made use of here. And 
Judge Jones, of the same State, holds that fealty is still a ser- 
vice, and escheat a perquisite of a feudal character. And 
Mr. Morris, the annotator upon Smith's Landlord and Tenant,^ 
says : " It would not be safe to assert that any property is 
allodial." But Mr. Pomeroy says, that all lands in America 

^ 1 Story, Const. 160 ; Cook v. Hammond, 4 Mason, 478 ; Stearns, Real 
Act. 61. 

2 Holt V. Somerville, 127 Mass. 408, 413 ; Heyward v. The Mayor, 7 N. Y. 
314 ; He Wash. Pk. Comm., 52 N.Y. 131 ; Be Centr. Pk. Comm., 50 N. Y. 493 ; 
Root's Case, 77 Penn. St. 276 ; St. Louis Court v. Griswold, 58 Mo. 175 ; People 
V. Salomon, 51 111. 37. And the State is the sole judge of the exigency, and the 
courts have no i:iower to revise its conclusion. lb. So the United States govern- 
ment may exercise the right within the States without the agency of the State. 
Kohl V. United States, 24 Am. Law Reg. 514, 517, 519. 

8 Comm'th v. Alger, 7 Cu.sh. "92-102, where this point is illustrated and ex- 
plained. Taylor v. Porter, 4 Hill, 140, 143 ; Comm'th v. Tewksbury, 11 Met. 55 ; 
People V. Salem, 20 Mich. 479-482, per Cooley, J. Thus the exercise of the 
police power by filling to abate a nuisance gives no action. Bancroft v. Cam- 
bridge, 126 Mass. 438. 

* Smith, Land. & Ten. Am. ed. 6, n. ; 2 Sharsw. Bl. Com. 77, n. 



t II. 11.] FEL'D.VL TENURE.-^, SEISIN, ETC 71 

an- alldtlial, cxcrpf tin- few iiiaimr laiid.s in New Vurk.' Ami 
Wiv |M)iiit .scciiis til lia\(' luTii I'uUy scuttled, so fur as IVnnsvl- 
vania is cnm-cnicd. llcr i-ourts now Imlil that the; estutcH in 
that State are aUixlial ami not feudal, that eseheat i.s a nioro 
feudal name for a statute ineident, aile^rianee is merely what 
is due from the citizen to tlic government, and the State is 
lord paiamount as to no man's land.- And in New Jersey 
and South Carolina, free and eonnnon soeage is declareil to 
exist hy express statute.^ It is undnuljtcdly true, as has al- 
ready been saiil, that many of the jirineiples of our law of 
real estate, iiududing its forms of conveyanee, as well 
as many ol' the terms * in use in applying thesi', were [* 1-] 
borrowed originally from the feu(hil .system. It is 
i)eeause this is thi- case, and because they could not be so in- 
telligildy applied as was d(siial)le without a brief outline of 
this system and its operation, that so much space has l)een 
assigned to it in this work. But it is apjtrehended that the 
adoption of forms of expression or forms of process borrowed 
from a once existing system of laws, docs not necessarily im- 
ply that that system has not become obsolete. Even the doc- 
trine of allegiance, which is said to be but fealty to the State, 
there is good authority for saying, " is a service from every snl)- 
ject to the crown or state irrespective of any land tenure there- 
b} manifested or maintained.""' And this chapter cannot, 
perhaps be more suitably closed, in view of the v.irious topics 
cmltraced in it, than by adopting the language tA' .Judge Kmt : 
'• Thus, by one of those singular revolutions incident to human 
affairs, allodial estates once universal in lOurnpe, and then 
almost universally exchanged for feudal tenures, have now, 
after the lajise of many centuries, regained their jtrimitive 
estimation in the minds of freemen."'' There is a class of 
tenures which exist between landlord and tenant, reversioner 

1 Intnxl. 272. 

a Walluce f. Ilarmstad, 44 Tenn. St. 492. 

• S. C. Hev. Stat. 671; Ni-xon, Dig. 129; Stat. New Jersey, 1795. Sec Arrow- 
smith r. Murlington, 4 M'Lean, 497. 

* 1 Hale, I*. C. 62 ; Tennes ile la Lov, "Allegiance." 

' 3 Kent, Coin. 513. If there an- instiuues of nianorial rights ami wrviies in 
New York, or any other of the States, they arc so far local a:> not to alTect tho 
general course of the above remark. 



72 LAW OF REAL PROPERTY. [BOOK 1, 

and tenant for life or dowcr and tenant in tail, reversioner and 
tenant in dower or curtesy, and the like. These are recog- 
nized as fully in this country as in England. But they do not 
properly come within the idea of feudal tenures, though indi- 
rectly derived from them.* And the same remark applies to 
the relation of grantor, owner in fee-simple, to grantee in tail, 
the latter estate being carved out of the former ; the grantee 
is considered as holding of his grantor, who has a reversionary 
interest remaining in him. And if, in such case, the grantor 
grant away his reversion, the tenant in tail or for life will 
hold of the grantee of the reversion, notwithstanding the stat- 
ute Quia Emptorei, because that statute only applies to cases 
where the grantor parts with his entire estate.^ 

» Smith, Land, k Ten. 6-3. * 1 Cruise, Dig. 72. 



CH. III.l 



ESTATES IN FEX-t^IXPLX. 



73 



1- 
2,3. 

7, «. 
^11. 
12-15. 
l»-ld. 
20, 21. 
22-28. 

29. 
8f>-34. 
35, 36. 
37-44. 
45-47. 
4ft-50. 
61, 52. 
63-63. 
64-69. 
71, 72. 
73, 74. 
75-77. 
78-^i. 

81. 

82. 
83-85. 

86. 
87, 88. 
89, 90. 
91-93. 



CIIAITER III. 

ESTATES IN FEEr^SIMPLE. 

Diitinr*i.,n between property and title. 
1 rhe rv&lt7 dedneiL 

T. . ., ..ed. 

EAtatf. ilefine<l. 

l> - ' ' ■ rurt^rutics of «itat<». 

i :. aD<l bow crwited. 

• ait:,.,' t»: . 'if law. 

IHatkin ai. -^tata. 

..oliitfi, — aiitnj, corporationa. 
i 1. 

1, — ita incidenta. 
r 

Alienation inci'lent to eatntea in fee, — ita history, 
{{ow far alienation may he reatricte^L 
Power of deviaing lan<la in fee, — ita history. 
Fee in incorporeal bereditamenta. 
" Heirs," how far nef^enaary to create a fee-simple by deed. 

r ■ ■ '■■■.-. 

I ;>:nt to fee-aimple. 



. leterminable. 



lees. 



• 'omlitional fees at common law. 

Determinable fees, — what are and what are not. 

Tenant of atich fee ha.« the rights of one in fee-simple. 

Determinable fee with or without a reversion. 

Such estate* descend as fees, are defeasible by condition. 

Sach estates may become fee-simple abaoIuU.-. 



1. Ah the law of real prof»orty naturally divides it.'ielf into 
different heads, it in well to cla^wifv an<l fix these as distinctly 
as may be, in order, if f>o8sihle, to have them presented 
in their * natural order. There is, then, a pro[»erty or ['44] 
int^'rest in lands or other tliin^rs coming within the 
class of realty, which is something distinct from the title by 
which it is held, or the mmle by which it is acquired.* 



^ See, a[ion this subject, Maine, Anc. L. 290 et teq. 



74 LAW OF REAL PKOPERTY. [bOOK I. 

2. It is, in its very nature, abstract, being predicated alike 
of what is corporeal and incorporeal, and independent of pos- 
session or actual enjoynaent. It is capable, moreover, of as- 
suming various forms and of existing under such different 
relations as often to give rise to complex rules and subtle and 
refined distinctions, which it becomes the business of a lawyer 
to detect and explain.^ 

3. A man may be the sole owner of an acre of land as his 
absolute property, subject to his right of using, abusing, or 
doing what he will with it, without any present or future 
right in another to exercise any control over it. Or he may 
have a right to a temporary use and enjoyment of it, while 
another may have a right to it after a term of years or after 
the death of some one. Or he may simply have a right to 
have the land and the full possession and occupation thereof 
at some future period, certain or uncertain. Or he may have 
the possibility of owning it and enjoying it if a certain contin- 
gent event shall happen ; or he may be liable to lose the pres- 
ent enjoyment of it if such event occurs, and the like. And 
these are but a few of the different forms in which property 
in or ownership of what is called realty may present itself to 
the mind.^ 

4. And this, it will be readily perceived, as already remarked, 
is something distinct from the title by which such property is 
held, or the mode in which it may be acquired. A man may 

1 For the doctrine of property in running waters, ' see ^jos<, vol. 2, p. *64 ct scq. 
Erabrey v. Owen, 6 Exch. 353, 368 ; Mason v. Hill, 5 B. & Ad. 1, 25 ; Wood v. 
Waud, 3 Exch. 748, 775 ; Washb. Ease. 207, 213, 307. 

2 Among the attempts to define what this property is, and in what it consists, 
the following may serve as an example : The civil code of Louisiana, § 480, defines 
ownership {hi jwoprUti) to be "the right by which a thing belongs to some one 
in exclu.sion of all other persons." In "West's Symboliography, printed in 1622, 
§ 31, it is said, "An estate, status, dominium, iJToprictas, is that right and power 
whereby we have the property or possession of tilings, that is, whereby we be 
owners or possessors thereof." See Code Nap. § 544. A writer in 2 Bench and 
Bar, N. s. 251, illustrates the difference in the habits and customs of the Engli.sh 
and French in the matter of holding lands in fee, and as tenants of a landlord, by 
the respective numbers of land-owners in the two countries, as given in the census 
of 1861. In England there were 30,766, in France 3,799,759, who cultivated their 
own land. There were in France 5,000,000 small rural proprietors, 3,000,000 of 
these owning about two acres each, and 2,000,000 about thirteen acres; 50,000 
were proprietors of five hundred acres eacli. 



fll. III.] ESTATES IN FKK-SIMPLB. 75 

be ro;_Mrik'd as the iilisoluti- owner of a farm, l>iit that doeK 
not iiulicate liow lie anjuired it, or what the nature of his 
title to it is. lie may have obtained it by a deed of ^'rant 
fn»m a former owner, by his hist will and testament, or by 
inheritimr it as his lu'ir; or he may have entered ui>on it 
without any riirht,and held it long enough to give him a valid 
legal title to it.' 

5. The division of the sulijeet therefore is intt), Ist, the na- 
ture and extent of the i)roj)erty or interest which one may 
have in lands or the realty; and 2d, the title by whieh that 
property is aeipiired and held. 

*G. To treat of the.se in their order, it may be well, ['45] 
first, to consider property in reference to its durati(jn 
or extent as to time; second, in reference to the circum- 
stances under which it may be held and enjoyed, whether in 
severalty or in connection with others and the like ; third, in 
refei'encc U) its being al)solute or conditional; f(jurth, in refer- 
ence to its being the sulijeet of present or future enjoyment, of 
possession or expectancy ; an«l lastly, in icfcrmce to its l)eing 
regarded as legal or einiitalde in its clua'actcr, that is, fixed 
and regulated by the rules of the conunon law or by tho.se of 
equity. 

7. The jiroperty or interest which one has in lands, tene- 
ments, or hereditaments, is expressed by the word eatate. 
And the extent or degree of this interest is indicated by the 
terms by which different estates arc designated. Thus an 
estate in fee-simple conveys at once the idea of an interest of 
an unlimited duration, without any words of explanation. 
It is called estate, from status^ signifying the condition or 
circumstances in which the owner stands with regard ti» his 
property .2 

8. In popular, and often even legal, use of the word estate, 
the thing itself, rather than the interest in it, is understood. 
"Still, the word in its pro])crest sense, imjiorts the interest."* 

1 Si'C post, vol. 2, p. • 398. 

» 2 Bl. Com. 103 ; Co. Lit. 345 ft ; Hurton, Heal Prop. § 12. It i.4 said by 
Lor<l Holt, " Estato comes from stmulo, because it is fixed and pcmumcot.'' 
Briti^jc water v. Boltou, 6 Mwl. Iu6, lOD ; Co. Lit. 9 a. 

» Id. 



76 LAW OF REAL PROPERTY. [bOOK 1. 

This is so -where " real estate " is spoken of. It is used as 
synonymous with lands and tenements.^ 

9. The first division of estates is into those of freehold and 
those less than freehold, which was partially considered in 
connection with the subject of tenure. 

10. These estates of freehold are again divided into those 
of inheritance and those not of inheritance. All estates of 
inheritance in tenements are freehold, but the converse of the 
proposition is not true, since freeholds embrace estates for 
life and those of indefinite duration, which may endure for a 
life. And now, in ordinary use, without explanatory words, 
the term " freehold " would be understood as denoting an 
estate for life as distinguished from an estate of inheritance, 

or one that goes to the owner's heirs at his death.^ 
[*46] *11. Estates less than of freehold, such as estates 

for years, are called chattel interests or estates ; if they 
continue for a longer period than the life of the tenant, they 
go like chattels to his personal representatives, his executor 
or administrator.^ 

12. A freehold answers to the liherum tenementum or frank 
tenement of Bracton and the early writers upon the law, which 
implied an estate which could be created only by livery of 
seisin,* and one which a freeman might consistently hold in 
reference to its tenure, and, of course, excluded all lands held 
in villeinage, even though held for the term of a life.^ The 
term, moreover, is used in two senses ; first, as indicating the 
quantity of interest, and second, the quality of the tenure.^ 

13. And although no estate of freehold could be created 
without livery of seisin, and of which livery might be predi- 
cated, including reversionary interests as well as those in pos- 
session,^ and though under the feudal law a freeholder was 
one of the pares curice, and at common law might be a juror, 

1 Carpenter v. Millard, 38 Vt. 9, 16 ; a^ite, p. * 3 ; Johnson v. Eicliardson, 33 
Miss. 462. 

2 Co. Lit. 266 b, n. 217 ; 1 Law Mag. 551 ; Burton, Real Prop. § 17 ; 1 Prest. 
Est. 203. 

8 Burton, Real Prop. § 1 ; 1 Prest. Est. 203. 

* 2 Bl. Com. 104 ; 1 Prest. Est. 209. 

5 1 Prest. Est. 209 ; Id. 213 ; Wms. Real Prop. 22. 

« 2 Woodd. Lect. 5. ^ 2 Prest. Abs. 282 ; 2 Bl. Com. 104. 



(11. III.] E.ST.\TES IN FEE-.«;iMPLR. 77 

1111(1 ill the c'lul hccomc oiititk-d to v((t(.' Un- incnilxTs (jf Parliu- 
iiKMit for the comity;' yet, in view of the doctrine of uses 
liavintr (lone away with actual livery of seisin, the proper 
delinitiiin of the term seems to he " an estate of inheritance or 
for life in real properly, whether it he a corporeal or ine«»rpo. 
real hereditament." ^ 

14. Yet, when speaking of an estate in reversion, ihoiij.^ii it 
is what is called a vested one, the owner is said to he entitled 
to, aiiij not to he seised of such estate,^ unless it he exj)ectant 
upon a term of years, in which case the j)ossessi»jn of the ter- 
mor is the possession of the reversioner or remainder-man, 
who has the seisin accordingly.* 

lo. There may be a seisin of a reversion or remain- 
der * expectant upon a freehold estate, in the manner [* 47] 
and for the reasons explained in the previous chapter.^ 

V). It will be suflicicnt to repeat that, for reasons which 
must be obvious from what has gone before, a first and im- 
mediate estate of freehold cannot be put in aheyaiv:e^ by the 
act of the owner, that is, waiting for any event, however near, 
or the lai)se of time, however short.^ This embraces the prop- 
osition that a freehold caniujt be created by deed to commence 
in future. And among the illustrations that might serve to 
explain this, would be a conveyance of a freehold to a person 
unborn or unascertained. It would be void.' But this does 
not apply to cases of remainders, or estates in reversion. A 
reversion is of course an estate in expectancy, after the ex- 
piration of an intermediate estate, and a remainder is not only 
an estate in expectancy, but it may be ever so contingent and 
uncertain, and be good, if, until the contingency is determined 
so as to have it vest or fail altogether, there be an intermediate 
estate of freehold in some third person.^ And where one 
holding a freehold in reversion conveys it in terms, from the 
expiration of the intermediate estate, courts will construe it a 

1 Prcst. Est. 207. 

'■' Bl. Cora. 104, Christinii's note ; 1 Law Mng. 555. 

' 2 Cruise, Dig. 330. But quaere, see Plowd. 191 : "A mnn may say of a re- 
version dependent upon nn estate for life, that he was Rcised a.s of ffo." 
* Co. Lit. 15 a; Plowd. 191. " Plo\v,l, 191 ; 4 Kent, eom. 8S6. 

« 1 Prest. Est. 216 ; Id. 250. ^ 1 Preat Est. 220. 

« 1 Atk. Conv. IL 



78 LAW OF REAL PROPERTY. [BOOK I. 

present conTeyance of a present freehold, the enjoyment of 
which is postponed till the expiration of the prior estate.^ 

17. So a freehold must be continuous. If limited ^ to A 
every Monday, B every Tuesday, and so on, it would be void. 
And one reason for this, among others, is, that there could be 
no tenant to the prcecipe as heretofore explained ^ to answer 
to and defend suits for the recovery of the land ; tlie party 
proper to be sued to-day would cease to be the one to defend 

to-morrow.* 
[*48] * 18. The abeyance into which a glebe or parson- 
age land is put by the death of the incumbent is deemed 
to be an act of the law, and the freehold, though suspended 
during a vacancy in the office, revives in favor of his suc- 
cessor.^ 

19. But a freehold cannot be put in abeyance by the act of 
the party, for reasons stated in a former chapter.^ 

20. It was a part of the freeholder's duty at common law, 
as more than once expressed, to defend the estate against 
claims which a stranger might make upon it. And if a 
tenant of a less estate than a freehold was disturbed by one 
claiming the land, he depended upon him who had the imme- 
diate freehold to protect and maintain his interest, and might, 
to this end, " pray the aid " of him who had the title, to de- 
fend suits brought to recover the land. So where the tenant, 
of whom the inlieritance was demanded, was himself a mere 
freeholder, he had a right to pray aid from the reversioner or 
remainder-man, and bring him forward to defend the title.^ 
As the prcecipe was a process to recover a freehold, no one 
having a less estate could defend against it, and therefore 
none other could, in the language of the law, be " tenant to 

1 1 Law Hag. 555, cites Weale v. Lower, Pollexf. 66 ; 1 Prest. Est. 225. 

2 This tei-m has a technical meaning, iniplying not only the conveying of 
lands, but the fixing of the limits or extent of the interest conveyed, as limiting 
lands to A B for life, and the like. 

* Ante p. »39. 

< 1 Prest. Est. 218 ; Id. 252, 253 ; 1 Law Mag. 561. 

6 1 Prest. Est. 217 ; Terrett v. Taylor, 9 Cranch, 43, 47 ; "Weston v. Hunt, 2 
Mass. 500. 

6 Ante, p. »39 ; 1 Prest. Est. 216 ; 1 Law Mag. 557. 
^ 1 Prest. Est. 207. 



en. lll."j ESTATES IN FEE-SI.MPLK. 79 

the pnTiripe."'' ^ " Tlic l:i\v will rnther ^rivc llic laml t<j lliu 
first comer, wliicli we call an occupant, than want a tenant to 
a ileniandant's action."^ 

21. The tenant for life was entrusted with the protection 
of the possession for the benefit of the reniainder-nian in fee. 
And a judirment against him on demand of right and inherit- 
ance was. in elTect, a judgment against him in reversion or 
reniaintler, and tt)ok away the seisin from them, rendering it 
necessary that they should hecome demandants instead of 
being defendants of the right. ^ 

•22. As to who may be freeholders, there is no exception in 
this country, beyond the disaliility in some States arising 
from alienage. By the common law, the cliief diflieulty, in 
this respect, is in acquiring title rather than in holding the 
estate when acquired. Thus an alien may purchase lands and 
hold them against all the world but the State. Nor can he be 
divested of his estate, even by the State, until after a formal 
proceeding called " office found ; " and, until that is 
done, may * sell and convey or devise the lands, and [*40] 
pass a good title to the same* 

23. But an alien cannot take lands by descent, nor transmit 
tliem to others as his heirs by the common law.^ 

24. And in Massachusetts, upon the death of an alien intes- 
tate, his lands formerly vested at once in the Commonwealth 
without office found.^ 

2'). But if the alien purchase of the State, with cove- 
nants of warranty, the latter cannot claim the land of the 
alien nor of his heirs." But the disability of alienage is 

» 1 Prest. Est. 206-208 ; Stearns, Real Act. 100-102; Tennesde la Ley, "Aid." 
See post, p. •95. 

2 1 Bacon's Tracts, 331. 

* 1 Prest. Est. 207 ; 1 Atk. Conv. 11. 

* Montgomery v. Dorion, 7 N. H. 475 ; Orr r. Hodgson, 4 Wheat. 453 ; Fox 
V. Southack, 12 Mass. 143 ; Mooers v. White, 6 Johns, Ch. 860, 365 ; Wuis. Keal 
Prop. 53 ; 1 U. S. Dig. " Alien," §§ 62, 63, 66. 

* Orr t?. Hodgson, 4 Wheat. 453 ; Mooers \\ White, uhi ntpra, where it is said 
"the law qua nihil fr\atrn never casts the freehold upon an alien heir who 
cannot keep it." Jackson r. I.unn, 3 Johns. Ca*. 109; 1 U. S. Dig. "Alien," 
5 61 ; Doe i-. Lazenby, 1 Smith (InJ.), 203. 

« Slater v. Noson, 15 Pick. 345. 

T Comm'th v. Andre, 8 Pick. 224 ; Goodell ». Jackson, 20 Johns. 6P8, 707. 



80 LAW OF REAL PEOPERTY. [bOOK I. 

removed, in whole or in part, in most of the United 
States.i 

^ Connecticut, aliens, if resident, maj- purchase, hold, inherit, and transmit as 
native-born citizens. Gen. St. 1866, p. 537. — In Delaware, aliens may take by 
purchase if they have declared their intention to become citizens, and by descent 
if residents in the United States at the death of intestate. Eev. Code, 1852, 
c. 81, § 1. — Alabama, Code, 1867, § 1896. — Arkansas, substantially the same 
as Delaware. Rev. St. c. 7, § 1. — California, aliens may take and hold estates 
as citizens, if residents ; if not, they may inherit if they come and claim within 
five years after the inheritance falls to the heir. Const, art. 1, § 17, Act 1856, 
c. 116. — Florida, they may purchase, hold, enjoy, sell, or devise lands as citizens. 
Thompson's Dig. 2 Divis. tit. 2, c. 1, § 3. — Georgia, they may purchase and 
convey lands if they have given their declaration of intention to become citizens. 
Code, 1873, p. 465. The acts of 1866 provide that aliens may own and convey 
lands. — Illinois, widows of aliens are entitled to dower. Rev. Stat. 1856, c. 34, 
§ 2. And aliens may take, transmit, and devise, in all respects, as native-bom 
citizens. Rev. Stat. 1874, p. 136. — Iowa, all disability is removed. Const, art. 
1, § 22. — Kentucky, aliens, not enemies, may recover, inherit, hold, or pass by 
descent, devise, or otherwise, after they have declared their intention of becoming 
citizens. Gen. Stat. 1873, 191. — Maine, they may take, hold, convey, or de\'ise. 
Rev. Stat. 1857, c. 73, § 2. — Maryland, disabilities removed by Stat. 1859. 
Code, vol. 1, art. 4, § 1, &c, — Michigan, there is no disability. Rev. Stat. 1846, 
c. 66, § 35. — Mississippi, the same as to aliens resident in the State. Rev. Code, 
1857, c. 36, § 9, art. 65. — Missouri, the same as to aliens resident in the State. 
As to aliens resident in the United States the same rule applies if they have 
declared their intention to become citizens and taken the requisite oath. Gen. 
Stat. 1866, c. 448, §§ 1, 2. — New Hampshire, resident aliens may take, pur- 
chase, hold, convey, or devise real estate. Gen. Stat. 1867 c. 121, § 16. — New 
Jersey, aliens may purchase, hold, and convey real estate. Rev. Stat. 1847, c. 1, 
§ 1. — Neiv York, aliens who have taken incipient steps to becoming citizens, 
may be enabled to take and hold lands to him and his heirs and assigns, and if he 
make oath in prescribed form, may within six years thereafter, sell, assign, or 
devise it. 1 Stat, at Large, 668. Heirs and widows of aliens may take by descent 
and dower. 4 Do. 301. — North Ca.rolina, aliens may take and hold lands as 
citizens. Gen. Stat. 1873, p. 78. — Ohio, all disability removed. Rev. Stat. 
1854, c. 3, § \. — Massachusetts, the same. Pub. Stat. c. 126, § 1. — Penn- 
sylvania, the same. Dunlop's Laws, p. 173. — Rhode Island, aliens may hold 
and dispose of real estate. Gen. Stat. 1872, p. 348. — South Carolina, aliens 
may hold, convey, or devise lands if they have declared their intention of becom- 
ing citizens. Stat. vol. 5. p. 547. — Tennessee, they may, if residents, acquire 
and hold real estate by descent or purchase, if they have declared, or shall within 
one year afterwards declare, their intention of becoming citizens. Carruthers 
& Nicholson's Dig. 1836, p. 87. c. 36. — Texas, all disability removed if a resident, 
and he has made declaration of bis intention to become a citizen. Stat. 1854, c. 70, 
§ 2. — Vermont, every person of good character who comes to settle in the State 
may take and hold lands. Constitution, § 39. — Virginia, aliens may hold lands 
who have made oath of intent to continue to reside in the State, if a resident. 
Code, 1860, p. 557. — IVisc&nsin, all disabilities removed. Rev. Stat. 1849, c. 62, 



CU. III.] ESTATES IN FEE-SIMPLE. 81 

•20. At comiuon law, corjMjratioiis ini^lit lake and [••'>0] 
hold and diKpusc of real estate for any imrjioses not 
inconsistent with those for which they were created.' 

27. In Knirland, from the time of the Mairna Charta, (!or- 
I»oratiiins have been restrained from holdiiiir lands by what 
are called statutes aj^ainst mortmain, or holdinj^ in dead hands. 
But these seem not to have been iidojitcd in any of the United 
Statt's except Pennsylvania, where no corpoiation may liold 
lands unless specially authorized by act of the lep.slature.* 
This power to hold land, it .seems, may belong to corporati<jns 
created l»y States other than where the lands are situate, un- 
less the laws of the latter State restrain it.^ 

28. Corporations in this country are generally limited in the 
acts creating them as to the value or amount of real estate 
they may hold. And the (juestion has been made as to the 
effect of their holding a larger amount than that prescribed. 
The rule seems to be this : If the jirojicrty, when jiurchased, 
does not exceed the sum limited, their title to it cannot 

be * affected i)y its rising in \aluc to a greater amount [*ol] 
than that ; if of greater vahu' at first, nobody can dis- 
turb their title to it excejtt the State.'* 

29. Different writers upon tlie suliji-et have adoj)ted different 
orders of arrangement in treating of estates. Ihit as st-em- 
ingly the UKJst natural one, it is proposed to consider first that 
out of which the others arc derived or carved,^ and then to 
treat of these in their order of importance as measured by 
quantity or duration. 

30. Adopting this order, the first of these is an estate in 
fee-simple. 

31. Fee, as is originally used, signified land holden of some 

§ 35. Also in Nebraska, Rev. Stat. 1866, p. 292. And in Dnh^a, Civ. (\>.l.., 
1866. So in Nemtda, Laws, 1867. — West Virginia, aliens who hnvo niado 
oath of intent to become citizens may holil real estate. Code, 1868, p. 458. 

» Sutton I'ari.sh v. Cole, 3 Pick. 232, 239 ; Ang. k Anii-s, Coq.. ch. v. § 1 ; 
Warden v. S, E. IJailway, 21 L. J. x. 8. Ch. 8S6. 

' Ang. & Anus, Corp. ch. v. § 1 ; 2 Kent, Com. 282. 283, and note ; Ijithrop 
r. Com. Bank, 8 Dann, 119. The English statute of mortmain (9 Ceo. II. c. 26) 
did not extend to Ma.<i.sacLu8etts. Jackson r. Phillips, 14 Allen. 539, 591. 

' Ang. & Ames, Corp. ch. v. § 1 ; Thomi>son v. Waters, 25 Mi.h. 214. 

« liognnlus V. Trinity Church, 4 Sand. Ch. 633, 757. ' 1 Treat. E«L 424. 

VOL. I. — 6 



82 LAW OF REAL PROPERTY. [bOOK L 

one as distinguished from allodial lands, fee and feud being 
synonymous terms. But now it is ordinarily used to denote 
the quantity of estate in land, and is confined to estates of in- 
heritance, or those which may descend to heirs. So that fee 
may he considered as in itself implying an inheritance.^ 

32. When the term " simjyle " is applied, it means no more 
than fee when standing by itself, as understood in respect to 
modern estates. But it excludes all qualification or restric- 
tion as to the persons who may inherit it as heirs, to distin- 
guish it from a fee-tail, which, though an inheritable one, 
will descend only to certain classes of heirs, as well as from 
an estate which, though inheritable, is subject to condition or 
collateral determination.^ 

33. A fee-simple, therefore, is the largest possible estate 
which a man can have in lands, being an absolute estate in 
perpetuity. It is where lands are given to a man and to his 
heirs absolutely, without any end or limitation put to the 
estate.^ And a fee-simple absolute simply means a " fee- 
simple." The word " absolute " adds nothing to its meaning 
or effect.* 

34. It gives him the fvillest power of disposing of 
[*52] the estate, * and, if he fails to do this, it descends to 
such of his kindled, however remote, as the law marks 
out as his heir.^ 

35. It is not necessary, however, that the estate should be 
absolutely indefeasible, if, until it is defeated, it is subject to 
unlimited alienation and descent, as would be the case with 
lands acquired and held by disseisin. The disseisor, so long 
as he holds, has in law a fee-simple estate, though liable to 
be defeated by the rightful owner recovering his seisin,^ and 

1 Co. Lit. 1 a, n. ; Termes de la Ley, " Fee ; " Wright Ten. 149 ; Lit. § 1 ; 2 
Bl. Com. 106. 

2 Wright, Ten. 146 ; Co. Lit. 1 b ; 2 Bl. Com. 106 ; 1 Brest. Est. 420 ; Lit. 
§293, 

8 2 Bl. Com. 106 ; Plowd. 557 ; 1 Brest. Est. 425 ; Lit. § 1 ; Atkinson 
Conv. 183. 

4 Clark V. Baker, 14 Cal. 612, 631. 

6 Burton, Eeal Prop, § 14 ; 1 Atkinson, Conv. 179, 183 ; Currier v. Gale, 9 
Allen, 522. 

« 1 Prest. Est. 426, 



Ill 111.] R'^TATKS IN FEK-SIMPLE. 88 

OHO rcnsoii is, iIktc ciiimut Itc twu fcH-.s-sinijilf in 'Ih- - h • 
luml.' 

30. So an estate is p-nerally called a fee-simple, liiiiuv:li it 
may l>o jrranteii on condition, liable to be defeated on the 
happening of some futnre event. I'ntil that iia])i»ens, and 
until the grantor or his heirs or devisees enter an<l put an end 
to the estate, it luis all the (puilities of a fee-simple, 'i'his is 
also true in respect to an estate which is subject to be de- 
feated l>y something collateral to it which may never ha)>pen, 
but if it happens, the estate is at an eml ; whi(di, as will be 
seen, is regard«'<l as a base fee as distinguished from a tetdmi- 
cal fee-simple, as if, for instance, the grant Ijc to one and his 
heirs till A returns from Rome.- 

37. One (jf the most important incidents to a fee-simple is 
the rigiit of free ami unlimitecj alienation.*' 

3S. This right of alienation seems to have been gradually 
ac([uired, feuils for some time after the Conquest being inalien- 
able. When first allowed, it could only be done by con.sent of 
the lord, hjr which a fine had to be paid.* 

30. And when feuds were first granted to a man and his 
heirs, the heirs were considered as having been in- 
cluded as donees * of the estate, and the feudatory [*o3] 
could not alien the land without con.scnt of the heir 

' Id. 423. The relation of the dissc-i.sor to the estate, so far as the di&scisee 
is concenied, is this : The dis-seisee may have an action of trespass against the 
disseisor for the act of entry, but after the dis-seisin made, he cannot recover for 
the mesne profits, since they follow possession, until the disseisee regains his 
possession by entry, when the disseisor becomes a trespasser ab initio, and liable 
in trespass for the mesne profits. CiiUtcrt, Ten. 41 ; 2 Holle, Ab. 553, 554 ; 
Bigelow r. Jones, 10 Pick. 1(U ; AbUtt i'. Al.lwtt, 51 Me. 575, 579 ; Allen r. 
Thayer, 17 Mass. 2l»9 ; Lehmiin v. Killerman, 65 Penn. St. 489. 

* 1 Cniise Dig. 55 ; 1 I'rest. Kst. 431. Though the term frf-ximpk is applied 
in the munner aliove stated, and Coke divides it into fee-simple absolute, fee- 
simple conditional, and fee-simple qualified or ba.se fee, yet in jwint of accu- 
racy it cannot Ih' pro|>erly a fee-simple if it ia eitlier base, conditional, or (]ualifie<L 
It is also often used by way of c«intnist with fee-tail. The reader may thertfore 
have to refer to the context in onler to determine, in some cases, in whiih of 
these senses the t4>rm may be used in the following pages. Vide 1 Prest. Kst. 
42'), 431 ; Co. Lit. 1 b. and note. 

* Lit. § 360 ; 1 Prest. HsL 430. .Se IS Am. Uw Keg. 393, as to what re- 
stniints may be enforced ui>oii the alirnation of estates, 

* 1 Spence, E<i. Jiir, 137 ; Wright, Ten. 167 ; 1. W. Bl. 134 ; Main©, Anc 
L. 230. 



84 LAW OF REAL PROPERTY. [BOOK 1, 

presumptive.! The " Mirror " (p. 11) gives an ordinance of 
one of the early kings, whereby " socage lands should be part- 
able among the heir's rights, and that none might alien but a 
fourth part of his inheritance without the consent of his heir, 
and that none might alien his lands by purchase from his 
heirs, if assigns were not specified in the deeds." 

40. The right of defeating the expectation of collateral 
heirs by alienation had been acquired as early as the time of 
Henry I. so far as it related to estates obtained by purchase. 
In the time of Henry II. this right was extended to a reason- 
able part of his family inheritance, though he could not disin- 
herit his oldest son.^ Bacon says that, " in Glanville's time 
(Henry II. 1154-1190) the ancestor could not disinherit his 
heir by grant or other act executed in time of sickness, neither 
could he alien land that had descended to him, except it were 
for a consideration of money or service, but not to advance 
any younger brother without the consent of the heir." ^ 

41. In the reign of Henry III. (1216-12T2), the right to 
alien had so far obtained a hold upon this kind of estate, that 
an ancestor might convey the lands in his possession, and 
thereby cut off his heirs, whether of his body or collateral, 
and this, whether he held them to him and his heirs or to 
him and the heirs of his body.^ 

42. And although the custom of subinfeudation had be- 
come general before the time of Magna Charta (1215), lands 
were not freely alienable until the time of Edward I., when, 
by the statute Quia Umptores, the 18th of that reign (1290), 
ch. 1, every free man was at liberty to sell his lands, or any 
part of them, though the Magna Charta itself incidentally 
recoo-nized it as an existing right. But until the statute of 



1 ! Spence, Eq. Jur. 137 ; Wright, Ten. 167 ; 1 W. Bl. 134. Mr. Thrupp, in 
his historical Law Tracts, informs us, that after the arrival of the Normans in 
England, there existed amongst them two kinds of estates, one of which they 
were forbidden to part with without consent of their relatives, answering to the 
family estate among the Jews. The other were alienable at pleasure, provided the 
owner, by so doing, did not thereby leave his children destitute. The last were 
known as " acquired " or earned estates, p. 226. 

2 1 Spence, E(]. Jur. 138 ; Wms. Real Prop. 33, and note. 
» Bacon's Tracts, 328. 

* Wms. Eeal Prop. 35 ; Bracton, b. 2, c. 6, fol. 17 a. 



CII. III.] ESTATES IN ri:E-SIMPLE. R") 

18 Eilwnnl 1., Ilaciii says, " tljo lord was not forced tu 
destrucl or disincnilM'r his scignioiT or service" ' 

4^5. Now the rii^lit of dis|iosiij<r in fcc-siiiipir liy act Intir 
rirus is the iiU(lis|iut<'d privilc^'c of every tenant of such an 
estate. Ill the laii^ua^re of Lord Coke, "All his heirs arc so 
totally ill hiiu, he may ^'ivc the lands to whom he will." 2 

* 1 1. This l)rief history is hut one of the many illus- [•54] 
trations which the chanp'S in the law afl'ord, of how 

the wants of a community supply sometimes by statute, hut 
oftener Ity the irrcsistihle force of public sentiment in th«' 
form of unwritten law, the moans of overcoming rules and in- 
stitutions incompatible with the.sc wants. The growing spirit 
of trade and commerce, though feeble at that day in com- 
parison with the days of Holt ami Mansfield, who were 
respectively chief justices of the King's Bench in 1<)89 and 
from 1T<!() to 1787, broke through the iron bonds in which 
the real estate of the kingilom had l»een locked uj», and made 
it liable for the debts of its owners,^ and the suliject of trade 
and exchange. 

4o. Though it is true, as already stated, that the power of 
free alienation is incident to an estate in fee-sim|ile, and a 
condition altogether preventing alienation, in a grant of lands 
or devise of the same in fee-simple, would be void, as beimr 
repugnant to the estate ;* yet, if it be only to a limited extent, 
as to A B and the like, or for a certain time, jirovided it be 
a reasonable time, the condition may be a valid one. and the 
grantee may forfeit his estate by violating it."" A devise to 
one in fee, but restricting him from aliening it in any wav 
until the devisee should arrive at the age of thirty-five, was 
held to be a valid restriction.^ But "no one can create what 
is in the intendment of the law an estate in fee, and deprive 
the tenant of those essential rights and privileges which the 

1 Wnis. Kent Prop. 56 ; Bacon's Tracts, 330. « Co. Lit. 43 b. 

J 3tl .Stilt. Edw. E, Dc Mcrcatoribu.s, A. D. 12S5. 

* Lit. § 360 ; 1 Prcst. Est. 477 ; Blackstoiip Hk. v. Davis. 21 Tick. 42 ; Bra-l- 
liy r. PL-ixoto, 3 Ves. 324 ; Tud. Cns. 794 ; Hall r. Tufts, 18 Pick. 455. 

' Lit. § 361 ; 1 Prest. Est. 478 ; Tiul. Cns. 71*4, 795 ; McWiHiains r. Nisly. 2 
S. & H. 507. 513. See Largo's Case, 2 Leon. 82. Kc Macleay, L. K. 20 1ca\. 186, 189. 
See piist, "447 <•/ scq. 

« Stewart v. Brady, 3 Bush, 623. But see Mandlebauni v. McDonell, 27 Mich. 73. 



86 LAW OF REAL PROPERTY. [BOOK I. 

law annexes to it. He cannot make a new estate unknown 
to the law.^ 

46. So, in a devise to A B and his heirs, there may be a 
limitation that if he fails to convey it in his lifetime, it shall 
go over to another devisee named, and the limitation be a 
valid one.2 

47. But a condition restricting the right to alien to a single 
person only will be void as repugnant, since the person so 
selected by grantor or devisor might be one of known inca- 
pacity to purchase. And, in short, conditions as to time 
when, and persons to whom, alienations cannot be made, 

must be reasonable in order to their being valid.^ 
[*55] *48. The power of devising lands by will is of a much 

later origin than of conveying them by deed, except in 
certain localities in England. The only mode in which it 
could be done prior to the statute of Henry VHI., hereafter 
mentioned, was by means of uses. One way of doing this 
was by conveying them to some one to hold to such uses as 
the grantor should declare by his last will. And when he 
had made such declaration, it operated, by the interposition 
of chancery, to give the beneficial interest in the lands to 
such devisee.^ 

49. In the words of Lord Bacon, " Lands by the common 
law of England were not testamentary or devisable ; " ^ and 
one reason for this was, that the alienation by will could not 
be consimimated by livery of seisin by devisor to devisee.^ 

50. As the statute 27 Henry VIIL united the seisin and 
the use in the one who was entitled to the use, its effect was 
to defeat the customary mode of making devises by the way 
of use. And there was no way of disposing of lands by will 

1 Doebler's Appeal, 64 Penii. St. 917. 

2 Doe V. Glover, 1 C. B. 448. But see Ide v. Ide, 5 Mass. 500 ; and j^ost, vol. 
2, p. *374, where this subject is more fully considered. 

8 Attwater v. Attwater, 18 Beav. 330, overruling Doe v. Pearson, 6 East, 173 ; 
1 Prest. Est. 478. The reader will observe that the conditions and restrictions 
above referred to are of a distinct class from those which affect the mode or pur- 
poses of occupation of estates, which belong to another part of this work. 

* Co. Lit. Ill b, n; 138 ; Wright, Ten. 172, 173 ; 1 Spence, Eq. Jur. 136, 441 ; 
Bacon's Tracts, 152 ; Perkins, § 538. Post, vol. 2, p. *103. 

» Bacon's Tracts, 316. 

« Co. Lit. Ill b. u. 138 ; 1 Spence, Eq. Jur. 136, 441. 



en. 111.] ESTATES IN riT.-SI.MrLE, 87 

in fee from tliat time till tlic statute 32 Ilciirv \'II1. rli;i|,. 1, 
whieh wjis cxphiiiinl by the ntiitute -W and ■'>■'> Ilmiv \ ill. 
chap. 5, by which any uorson liavinL"" an intere.st in lan<ls held 
in sucaf^c might devi.st' it by hi.s last will to any jierson except 
a body corporate or )tolitic. And as this power had been en- 
joyed b(jth under the Saxons and Danes, it justified the remark 
of a writer, that "o will of lands thus again, after an interval 
of nearly live hundred years, became a legal mode of aliena- 
tion of lands and hereditaments." * 

51. It is hardly necessary to add that in respect to the hu m 
of aliening estates in fec-simj)le, what was said in res|)ect to 
passing freehold, by livery or deed, and liy the means of the 
doctrine of uses, a])])lies to these also. And though, borrow- 
ing from the common law, the owner of such an estate " is 
called a tenant because he holdeth of some sui)erior 

lord by some * service,"^ the term tenant is now used [*5(3] 
only, in its popular sense, as synonymous with owner. 

52. A fee-simple may be had in incorporeal as well as cor- 
poreal hereditament^, though in s])eaking of the one or the 
other, the owner is said to be seised " in his demesne as of 
fee " of corporeal, and " seised as of fee " of incorporeal here- 
ditaments ; the distinction being that the latter issue out of 
lands which belong to another than him who owns the right 
of way, for instance, or whatever the hereditament may be, 
and in such case the owner of the easement, as such a right 
would be called, has no dominion over or ownership of the 
land itself, though he may own the easement to himself and 
his heirs as fully as he could the land.^ 

53. The origin of the use of "heirs" in creating an estate 
in fee by grant has already been exjilained,'' though it has ob- 
viously become a mere arbitrary rule. Still, unless changed by 
statute, it is as imperative, as a rule of law, now as ever. Xo 
synonym will supply its place. Even a grant to one and 
" his heir " will give him only a life estate,^ or to one " or his 

> 1 Spence. Eq. .Tur. 469; Co. Lit. Ill b, n. 138. 

2 Co. Lit. lb. 8 2 Bl. Com. 106, 107. * Ante, pp. •27, •28. 

6 Co. Lit. 8 b ; 2 Prest. Est. 8 ; Id. 10 ; Com. Dig., Estate, A. 2. Though 
this is questioned by some authorities, see 4 Kent, Com. 6, note, and cases cited ; 
Tud. Cas. .')86 ; especially if "heir "can b« construed to be nomtn coUcclivum. 
Hargrave, Co. Lit. 8 b, u. \o. 



88 LAW OF REAL PROPERTY. [BOOK I. 

heirs," ^ or to one " and his heirs during the life of another," 2 
or to one " forever," or to one " and his assigns forever," and 
the words " forever," or " assigns," have no effect at this day 
in limiting or defining what estate is granted.^ So to one 
" and his successors," * or to one, his successors and assigns, 
is a life estate only, although coupled with a power to sell and 
convey a fee,^ or to one and his " seed," or " his offspring," or 
to one " and the issue of his body," ^ or to one in " fee-sim- 
ple," " or to one, " his executors, administrators, and as- 
signs." ^ No circumlocution has ever been held sufficient to 

create a fee.^ 
[*57] * 54. There are what might seem at first sight ex- 
ceptions to this rule. Thus, if an estate be granted 
clearly in fee, and the deed by which it is again granted, in- 
stead of being to the grantee and his heirs, be to him as fully 
as it was granted in the former deed referring to it, it is only 
borrowing the words of limitation from the former deed, and 
conveys a fee.^^ 

55. In the case of conveyances in trust, the trustee will take 
the legal estate in fee, although limited to him without the 
word " heirs," if the trust which he is to execute be to the cestui 
que trust and his heirs. The words of limitation and inherit- 
ance in such case are connected with the estate of the cestui 
que trust, but are held to relate to the legal estate in the trus- 
tee, because without such a construction the trustee would 
not be able to execute the trust. His estate would be com- 
mensurate with the trust, and that only, even though it were 
to him and his heirs, and the trust was for life only in the 

1 Co. Lit, 8 b ; Com. Dig., Estate, A. 2. M Prest. Est. 479. 

8 2 Bl. Com. 107 ; 2 Prest. Est. 3 ; Id. 5 ; 1 Spence, Eq. Jur. 139 ; Adams v. 
Ross, 30 N. J. 505, 511. 

* Co. Lit. St. 6 Sedgwick v. Laflin, 10 Allen, 430. 

6 Wms. Eeal Prop. 120. 

' Bridgewater v. Bolton, 6 Mod. 106, 109 ; 2 Prest. Est. 5. 

^ Clearwater v. Rose, 1 Blackf. 137. In the case of Foster v. Joice, 3 "Wash. 
C. C. 498, the deed was " to J. M. and his generation to endure so long as the 
waters of the Delaware run," and held to be a life estate only. But in Vermont 
a lease for 1,000 years, or as long as wood grows and water runs, was held to be a 
fee. Arms v. Burt, 1 Yt. 303 ; Stevens v. Dewing, 2 Vt. 411. 

9 Adams v. Ross, 30 X. J. 512. 

10 Com. Dig., Estate, A. 2, n. ; Shep. Touch. 101 ; 2 Prest. Est. 2. 



CU. III.] ESTATES IN FEE-SIMPLE. 89 

cestui que trust} Thus a jrrant to A 11 in trust to sell curri(>8 
a fee.- So, if to A ami his heirs in trust for l> till In- attains 
twenty-one years, the trustee takes a ehattil interest only, 
anil though the trust is to "heirs," if the trustee dits, his <\- 
ecutor is to execute the trust, and not his heirs.' 

56. Leirislative grants may convey lands without making 
use of technical wor's n^juired in a deed.* 

57. But still it is essential, in all cases, to the creation of a 
fee, that it may continue forever.^ 

58. A limitation to one and his "right heirs" is the same 
as to his ''heirs" simply; and a limitation directly to the 
" right heirs " of one carries a fee without adding the words 
" and their heirs."** 

*o'.'. There may, too, be such a joint interest in the [*o8] 
fee in lands between two persons, that if one simply 
releases to the other without words of inheritance, the latter 
becomes owner in fee of the entire estate ; as if a i)arcener or 
joint tenant releases to his co-parcener or co-tenant, he extin- 
guishes his own right, leaving the other the sole owner. So if 
a disseisee release to his disseisor ; " so if one have a right in 
fee out of lands owned by another in fee, like a right of way, 
and he release to the latter. ^ 

60. And where tenants in common have partition made ol 
their estate by act of law, each is in, in the part set ofT to him, 
in severalty, of the same estate as he had in his undivided 
share before. But if they make partition by deeds of mutual 

» Ncwhall V. "Wheeler, 7 Mass. 189 ; White i'. Woodbern-, 9 Pick. 136 ; Fisher 
V. Fields, 10 Johus. 495, 50.5 ; p<:)st, vol. 2, pji. 'ISG, *1S7 ; Jenkins r. Young, Cro. 
Car. 230 ; North v. Philbrook, 34 Me. 532, 537 ; 1 Sand. Uses, 107 ; Gould r. 
Lamb, 11 Met. 84 ; Brooks r. Jones, lb. 191 ; Tiff. & Bill. Trust. 783 it seq. ; 
Hill, Trust. 239 ; Tud. Cas. 459. But see Jackson v. Myers, 3 John, 888, 396 ; 
Sears v. Russell, 8 Gray, 86 ; Koenig's Appeal, 67 Penn. St. 352, 355 ; Doe r. 
Considine, 6 Wall. 458, 471 ; 2 Jami. Wills, 156. 

2 AngcU r. Rosenburj-, 12 Mich. 241, 266 ; Sears f. Russell, 8 Gray, 86. 

• 2 Law Mag. 82 ; Doe r. Considine, 6 Wall. 470. 

• Rutherford v. Greene, 2 Wheat. 196. 

8 1 Prest. Est. 480. The "Rule in Shelley's Case" forms atopic for special 
consideration hereafter. See post, p. '77. 

• Co. Lit. 10 a, 22 b ; Com. Dig., Estate, A. 2 ; 1 Rolle, Abr. " Estate, " L. 8 j 
4 Cniise, 276. 

T Com. Dig., Estate, A. 2 ; Lit. §§ 519, 520. « 2 Past. Est, 58. 



90 LATT OF REAL PKOPERTY, ["bOOK I. 

grant and release, nothing more than a life estate in severalty 
would pass thereby without words of inheritance.^ 

61. So if one having an estate in fee in remainder or rever- 
sion, releases to the tenant for life without words of inherit- 
ance, it would give him no more than a life estate.^ 

62. If lands are conveyed to a corporation aggregate, it 
will, from the nature of such corporations, be understood as a 
fee without any words of limitation.^ But if it be to a cor- 
poration sole, it must be limited to such corporator and his 
" successors," which in case of corporations answers to " heirs " 
in case of grants to natural persons, or it would be only an 
estate during the life of such corporator.* 

63. One seised of glebe lands as parson is considered as a 
corporation sole, and if land be granted to him in his political 
or artificial capacity, but without being limited to his " suc- 
cessors," he would take but a life estate, although the grant 
were to him and his heirs. ^ 

64. Another broad class of cases form exceptions to 
[*59] the rule * requiring a limitation to " heirs " to create an 
estate of inheritance, and that is where the estate is 
created by devise. In these cases, the intention of the testa- 
tor, if clearly expressed by his last will, will be sufficient to 
create a fee without the use of the word " heirs." ^ Among 
the illustrations may be mentioned a devise of one's estate in 
such lands, and he owns a fee," or " all " his " right," ^ or 
" all " his " property," or " all " his " inheritance," ^ or to one 
" in fee-simple." ^° 

65. So if it is necessary, in order to give effect to a charge 

1 2 Prest. Est. 56, 58. The reasons for the difference in this respect between 
tenants in common and joint tenants will appear hereafter. 

2 2 Prest. Est. 62. 

3 Wilcox V. Wheeler, 47 N. H. 488. 

* Ang. & Am. Corp. ch. v. § 1 ; Overseers v. Sears, 22 Pick. 122, 126 ; Com. 
Dig., Estate, A. 2 ; 2 Prest. Est. 43 ; Id. 7 ; Wilcox v. Wheeler, 47 N. H. 488. 
6 Co. Lit. 8 b ; 2 Prest. Est. 6. 

6 Jarrn, Wills, c. 34, p. 229, 1st ed. ; Tud. Cas. 588. 

7 2 Bl. Com. 108 ; Bridge water v. Bolton, 6 Mod. 106, 109 ; Godfrey v. Hum- 
phrey, 18 Pick. 537. 

8 Xewkerk v. Newkerk, 2 Caines, 345. 

9 Jackson v. Housell, 17 Johns. 281 ; Wms. Real Prop. 189. 
10 Bridgewater v. Bolton, 6 Mod. 106, 109. 



en. III.] ESTATE.i IN FEE-SIMI'Li:. 1 

or trust ciTiilcd hy tlic snnic will, to lidld tin- <lcvi.sc u fct-, ii 
will bu HO held.' 

GO. So a foe may be inferred from tbe nature of the use 
wliieli devisee is to make of the land ; as, a devise of wild 
hinds to one, without any words of inheritanee, will be con- 
strued to be a fee because a mere tenant for life could make 
no use of such land. The very using of it by cutting off its 
timber would work a forfeiture.^ 

in. And upon the same principle, if lands are given to one 
by will, who is by the same will personally charged with the 
I)ayment of money on account of such devise, it will l>e held 
to be a fee, for the testator intended to make him the object 
of his bounty; and if he only takes a life estate, he might die 
the day after paying the money, and so lose the whole benefit 
of the devise.® 

G8. But if the payment is charged ui>on the lands only, and 
not upon the devisee personally, the rule does not apply.' 

60. To obviate any question in cases like the foregoing, 
there is now a provision in the English statutes as well 
as in those * of many, if not all the States, whereby a [*G0] 
devise of land carries whatever estate the devisor had 
in them, unless the same is restricted or qualified by the lan- 
guage of the will.'* 

70. With far more questionable wisdom in disturljing a 
well-<lefined and familiar rule of conveyancing,*^ the States 
mentioned in a former page" have by statute dispensed with 
words of inheritance in creating a fee. 

71. Among the incidents other than the right of alienation 

1 BnkiT V. Bridge, 12 Pick. 27 ; Wait v. Belding, 24 Pick. 129, 138 ; Godfrey 
V. Hunii.hr.'V, 18 Pick. 537. 

^ Sargent v. Towne, 10 Mass. 303. 

» 2 Bl. Com. 108, n.; Doe r. Richards, 3 T. R. 356; Jackson r. Merrill. 6 
Johns. 185 ; Lithgow r. Kavenngh, 9 Mass. 161 ; Wait v. Belding. 24 Pick. 139. 

♦ Jackson r. Bull, 10 Johns. 143. 

» 7 Wm. IV. and 1 Vict. c. 26, § 28 ; Mass. Pub. Stat. c. 127. § 24. Such is 
the law in Alabama, Arkansas, Georgia, Iowa, Illinois, Kentucky, Mississippi, Mis- 
souri, New York, Tennessee, Texas, Virginia, New Jersey, and North Curolinn. 
Sceaji^, p. •ai, n. 2. Bell Co. v. Alexander, 22 Tex. 350, 358. So in Nebraska, 
Rev. Stat. 1866, p. 291. 

« 2 Prest. Est. 67 ; 2 Law Mag. 72. 

1 AnU, p. •29, n. 2. 



92 LAW OF REAL PROPERTY, [BOOK L 

belonging to estates in fee-simple at the common law, are 
curtesy and dower ; the one being the right which a husband 
has in the estate of his wife, if he survive her, the other the 
right which a wife has in the husband's lands if she survive 
him, which will be explained in their proper places.^ 

72. Another incident has already been anticipated, and that 
is, that if not aliened by deed or last will of the owner, estates 
in fee-simple descend without restriction to whoever is by law 
his legal heir or heirs, and this, whether the estate be corpo- 
real or incorporeal, in possession, reversion, or remainder, and 
whether vested or contingent.^ 

73. Lands held in fee-simple are also subject to the debts 
of the owner, both in England and this country, and as 
well after his death as while living. This was not an origi- 
nal incident to lands so held. They were first made subject 
to execution by the statute 13 Edward I. c. 18, though if the 
ancestor bound his heirs by specialty debts, his lands which 
had descended to his heirs might have been taken in execu- 
tion at common law in an action against the heir, unless he 

had conveyed away those lands before suit brought. 
[* 61] Among the modes of taking a * debtor's lands were 

those by statute merchant and statute staple, forms 
prescribed by statute, one in Edward I., the other in 27 
Edward III.3 

74. This is not the place to speak of the effect of bankrupt 
or insolvent laws, nor the modes of levying executions upon 
estates of debtors, though it may be said, in general terms, 
that lands in this country are liable for debts of the owner, 
whether due by matter of record, by specialty, or by simple 
contract. Aiid if they descend to the heir or go to a devisee, 
he holds them subject to be taken for the payment of the debts 
of the ancestor, according to the laws of the State in which 
they are situate.* 

* Tud. Cas. 694. The law as to dower has been materially altered by statute 
in England and in several of the States, as will be shown hereafter. 

2 Tud. Cas. 594. The rules of descent depend upon the local statutes of the 
several States, and come under another head of this work. 
8 1 Spence, Eq. Jur. 173, 174. See post, c. 15. 

* Watkins v. Holman, 16 Pet. 25, 63 ; 1 Greenl. Cruise, 60, n. ; "VVyraan v. 
Brigden, 4 Mass. 150. 



CH. 111.] ESTATES IN FEE-SIMPLE. Il3 

75. From the dclhiilions lu- ret of ore given, it would seem to 
follow tluit no e.state eoukl be limited to take elTeet after a 
fee-8im|)le, as that in its nature is indeterminable. IJut it will 
be seen that, under the doetrine of uses and exeeutory tlevises, 
this is often done by UKikinj^ a fee-simj)l»' determinalile upon 
the hapiiening of some event, ami substituting a new estate 
in its stt'ad.' 

70. As every estate whieh may be of perjtetual cnnf inuancc 
is deemed to be a fee, and may come within tbr ilrlinition of 
Lord Coke, of a fee-simple nljsolute, conditional, (piaiilitMl, 
or base fee,- this seems to be a j)roper connection in which to 
treat of them. 

77. Though it will be found dillicult to classify these by 
any intelligible line of discrimination, the limit beyond which 
one may depart from the settled forms of the comuKJU law in 
creating estates with new (pialities of inheritance is extremely 
restricted. Thus an estate to one and his " heirs male," or 
" heirs female," or to one and his heirs on the i)art of his 
father or of his mother, would be regarded as a fee-simi»le, 
the limitation to the particular class of heirs being regarded 
as surplusiige.^ 

* 78. A base fee is illustrated in " Termes dc la Ley " [*62] 
(Base Fee) by an estate in land so long as another » 
shall have heirs of his body ; so in Plowd. oo7 a. And Flin- 
tolT, following Blackstonc, speaks of " a base or qualified fee," 
using them as convertible terms, and explains it by the famil- 
iar illustration of a grant to A and his heirs, tenants of the 
manor of Dale, the grant being defeated by his heirs ceasing 
to be such tenants.* 

70. The term determinable fee .seems to be more generic in 
its meaning, embracing all fees which are liable to be deter- 
miiu'd by some act or event cxprcs.sed in their liniitatiou to 

' Com. Dig. (Day's ed.) Estate, A. 4, nnd noti- ; To. Lit. IS a ; 2 Law 
Mag. 82. 

■i IVst E-st. 480 ; Co. Lit. 1 I. ; 2 Flint. Il.al Trop. 137. Jmlge Kent uses 
qualified, last; ami (Ictcrminahlc fi-t-s iiidis. riiuiiiately. 4 Kent, Com. 9. 

8 Lit. § .31 ; Com. Dig., Estate, A. 6 ; 1 Pnst. Est. 472 ; Id. 461 ; Co. Lit. 27; 
Id. 130 ; 2 Uw Mag. 68 ; I.l. 2fiO. 

« 2 Flint. Real Prop. 136 ; 2 Bl. Com. 109 ; 1 SiH?nce, Eq. Jur. 144 ; 1 PrvsL 
Couv. 299. 



94 LAW OF REAL PROPERTY. [BOOK I. 

circumscrihe their continuance, or inferred by law as bounding 
their extent.^ 

80. Plowden uses the following language : " Such perpetu- 
ity of an estate which may continue forever, though at the 
same time there is a contingency which, when it happens, will 
determine the estate, which contingency cannot properly be 
called a condition but a limitation, may be termed a fee- 
simple determinable." ^ 

81. This description in Plowden answers to what is now 
denominated " a conditional limitation," as distinguished from 
an estate upon condition, the estate in one case determining 
ijjso facto by the happening of the event by which its limita- 
tion is measured ; in the other, though liable to be defeated, 
not being in fact determined until he who has a right to avail 
himself of the condition enters and determines the estate.^ 

82. And it may be well also, in this connection to observe 
that, at the common law, the term " conditional fee " often 
had a technical meaning, and was something different from 
an estate upon condition, as above explained. It was applied 
to those fees which were restricted to some particular heirs, 
as limitations to one and the heirs of his body, or heirs male 
of his body, and the like, which, as will be seen hereafter, were, 

by the statute de Donis, converted into estates tail.* 
[* 63] *83. But, in its broader sense, a determinable or 
qualified fee may embrace what is properly a condi- 
tional fee.^ 

84. Among the instances put by way of illustrating a 
determinable fee, is a limitation to one and his heirs, peers of 
the realm or lords of the manor of Dale, or so long as a cer- 
tain tree stands, or until the marriage of a certain person, or 
till a man shall go to or return from Rome, or till certain debts 
are paid, or so long as A or his heirs shall pay B a certain sum 
per annum, or so long as St. Paul's shall stand, or until a pre- 
scribed act shall be done, or until a minor shall attain the age 

1 1 Prest. Est. 466 ; Id. 431 ; Sej'inour's Case, 10 Rep. 97. 

2 Walsingham's Ca.se, Plowd. 557. 

8 Brattle Sq. Church v. Grant, 3 Gray, 142, 146, 147 ; 1 Prest. Est. 475. 
♦ 2 Bl. Com. 110 ; 2 Prest. Est. 289 ; 1 Prest. Abs. 378. 
5 1 Prest. Est. 475. 



CU. Ill] ESTATES IN FEE-SIMPLE. [)') 

of twenty-one years, and the like.' So a ^M'ant to a canal 
eorporatiun, " as lon^ as used for a caual," was held to Itr a 
(lualified fee.- 

H5. Hut a limitation to A and his licirs, durin;( the \s itlnw- 
hood of 15, or whik- (' resides at liunie, would only he a lif(' 
estate and not a fee, hi-cause it is nu'a.surcd liy the life of a 
person in t'stn'.^ 

8tl. So louL' as the estate in fee remains, the owner in po.s- 
ses.sion has all the riirhts in respect to it, which he would have 
if tenant in fee-simpl(>, unless it l)e so limiti'd that there is 
properly a reversionary ri^ht in another, something more than 
a possihility of reverter helonging to a third person,^ when, 
perhaps, chancery mij^ht interpose to prevent waste of the 
premises.^ 

87. An estate to one ami his heirs, so lonjjr as a tree stands, 
would be one of those where there is a reversion, })ecausc the 
law contemplates as certain the destruction of the tree at 
some future time, and, therefore, that there will certainly he 
an estate in some one other than the tenant and those hold- 
intr under him, after the ha]t|)enin<r of that event. ^ 

88. On the other hand, if it he to A and his heirs till B 
comes back from Rome, the riglit to have it when he 
comes back is * not a reversion but a mere poHsibility; [*04] 
he may and may not come back, and if he were to die 
before he came back, the estate would become absolute in the 
grantee.' 

8i>. A fee determinable will descend in the line of succes- 
sion of the purchaser, and will determine upon the happening 
of the event upon which it was first limited, into whosesoever 
hands it may have come.^ 

» 1 l'R'8t. Kst. 442 ; Id. 43*2 ; Com. Dig. (Day's ed.) Estate, A. C, n.; Cook V. 
Bibhet', 18 Pick. 529 ; Tud. Cos. 605. 

■•' State I'. Brown, 27 N. J. 20. 

8 1 Prest Est. 442 ; McKclway v. Seymour, 29 X. J. 329 ; State r. Brown. 
27 N. J. 13, 20. 

« Plowd. 557 ; Smith, Real & Pcrs. Prop. 103 ; 1 Cruise, Dig. 65 ; 1 Atkin- 
son, Conv. 183. 

' This remark should not l)c undcrstoo<I as intending to embrace estates tail. 
Tud. Ciis. 613. « 1 Prest. Est. 440 ; Ayies r. Fulklund, 1 Ld. Kayni. 326. 

■» 1 Pn-st. Est. 441 ; M. 440 ; 1 Atk. Conv. 183. 

5 1 Prist. Est. 440 ; Tud. Cas. 606. 



96 LAW OF REAL PROPERTY. [bOOK L 

90. And the same rule applies in cases of estates upon con- 
dition ; they are liable to be defeated by a breach thereof, in the 
same manner as they would have been in the hands of the 
original grantee as long as the condition may affect them.^ 

91. These estates often may become fee-simple absolute by 
uniting them with the reversionary or possible interest in the 
inheritance, which would arise or come into possession if they 
were to determine, or by extinguishing such a possibility. 

92. Thus in the case of an estate to A and his heirs so long 
as he has heirs of his body, where if he dies without issue his 
estate determines, being a determinable fee. But if the one 
who has this contingent reversionary right or possibility release 
it to the tenant in possession, it would change his fee deter- 
minable into a fee-simple absolute.^ If it had been to A and 
his heirs till B returned from Rome, and B had died at Rome, 
the estate in A would have become absolute at once. The 
event in such case is not a condition but a limitation, — the 
estate is to endure until he returns.^ 

93. So if the estate be expressly one upon condition, and 
the condition be performed, the condition is gone and the 
estate is thereby al)solute. Having originally been as to its 
duration a fee, liable to be defeated if the condition was not 
performed, it becomes by the performance at once a fee-simple 
absolute* The subject of estates in fee upon condition, and 
the familiar conditional estates in mortgage, will be resumed 
in its proper order. 

1 1 Prest. Est. 475 ; 1 Atk. Conv. 183 ; 1 Prest. Abs. 378. 

2 "Walsingham's Case, Plowd. 557 ; Ld. Raym. 1148 ; 1 Prest. Est. 482. 
8 1 Prest. Est. 440-442 ; Tud. Cas. 606. 

* 1 Prest. Est. 476 ; 1 Atk. Conv. 183. 



CH. IV. 1 ESTATES TAIL. 



C'llArTKIl IV. 

ESTATKS TAIL. 

1-3. Origin of estatos taih 

4, 5. Such estates at first c-oiulitional fees. 

6-8. Orij^n of stjxtiito Dc iJonis. 

9. EsUites in frank iniirriage. 

10. Provisions of the statuto De Donis. 

11-13. Effects of tliat statute Ufwu estates, real and i>ersonal. 

14-16. Construction put \\\nn\ the statute, and its effect. 

17. Attempts to defeat the statute. 

18. Statute evatled by fines and recoveries. 

19. Common recoveries ; form of proceeding. 

20. Right to bar them incident to estates taiL 

21. No jH'rmanciit entail.s of estates now. 
22-24. t^tates tail di-tined and illustrated. 

25. Estates tail distinguisheil from estates determinable. 

86, 27. Estates in fee-simple or fee-tail as effected by terms of deeds. 

23. Fees-tail with conditional limiuuiou. 

29. No estate tail in a freehold or chattel interest. 

30. Heirs of donee in tail take by descent and not by purcliase. 

31. Heirs in tail must be named as heirs of the body. 

32. Limitation may be to heirs begotten or to be begotten. 
83, 34. Estates tail general and sinicial. 

85, 36. If special, there must by possibility be such heirs. 

37. In special tail, the descent must be by the prescribed line. 

88—42. Words of inheritance in deeds and wills. 

43. Rule in Shelley's Case. 

44, 45. Rule applied to estates in husband and wife. 

46. Remainders, when contingent. 

47. Effect ujKjn devise of donee dying, living devisor. 
48, 49. Incidents to estates tail. Waste, dower, curtesy, &c. 

60. As to tenant in tail laying charges on the estate. 

51. Doctrine of merger dm-s not apply to estates tail. 

62, 53. Successive descents follow the rule of the first. 

54-57. Entailments practically avoided by usag<> or statute conveyances, 

68, 59. Estates tail after possibility of issue extinct. 

60, 61. Estates tail in the United States, how far recognized. 

* 1. The history of estates tail sliows that they were ["'j^'] 
in use among the J>axons, liaving been borrowed from 
the laws of Rome, where, by way of Jidei-comrniaga, lands 

VOL. I.— 7 



96 LAW OP REAL PROPERTY. [bOOK I. 

might be entailed upon children and freedmen and their 
descendants, with restrictions as to alienation. Under the 
Saxons the owner of allodial or hoc-lands might convey them 
absolutel}-, or grant a limited interest in them, reserving the 
residue of the ownership to himself, which he might convey 
to another at his pleasure. So he might settle them upon 
any particular class of descendants in succession. And the 
custom of settling lands upon males in preference to females 
was in use before the time of Alfred.^ 

2. The custom of conveying lands to a man, or a man and 
his wife, and the issue of a particular marriage, or to a man 
and the heirs of his body, or some particular class of issue, or 
heirs, was continued after the Conquest.^ 

3. Such a fee or feud as above described was called a 
feudmn talUatum, from tailler, to cut or mutilate.^ 

4. Where an estate was given in such a form, it was held to 
be a conditional fee, that is, if the donee should not have heirs 
or issue according to the prescribed description, the land should 
revert to the donor ; but if the condition was performed by the 
birth of such heirs presumptive, or issue, the donee was held 
to have a fee-simple, so far that he might charge or alien the 
land as a fee-simple estate.* 

5. Such was the case up to the time of Edward I. 
[*67] These * were called fees-simple conditional. But 
though liable to be changed into fees absolute in the 
manner above stated, if they descended to the issue, and the 
issue became extinct before alienation made, they reverted to 
the donor.^ 

6. Previous to this time, too, the nobility and great landed 
proprietors, in order to preserve their lands within their own 

1 Spence, Eq. Jur. 21 ; Barringt. Stat. 113. 

2 1 Spence, Erj. Jur. 140. » 2B1. Com. 112, n. 

* 1 Spence, Eq. Jur. 141 ; Co. 2d Inst. 333 ; Tud. Cas. 607; Co. Lit. 19 a ; 2 BL 
Com. 111. Lord Mansfield said: " I cannot agree with the argument that on the 
performance of the condition by birth of a child, the estate becomes absolute. It 
was so by a subtlety in odium of perpetuity and for the special purpose of aliena- 
tion, but for no other. It otherwise reverted to the donor, on failure of the issue, 
according to the original restriction." Buckworth v. Thirkell, 3 B. & P. 652, n. ; 
Ford V. Flint, 40 Vt. 382, 392 ; Finch, 121, 122. "But if the issue fail before the 
alienation, the donor or giver shall have it." 

5 1 Spence, Eq. Jur. 141 ; Co. Lit. 19 a, and note 110; 2d Inst. 332. 



(11. IV.] ESTATES TAIL. '.lO 

families, had lioon acciistoniod to st'ttle tlu-in upon their oldest 
sous and (lieir is.suc, and, upon the- failure of .such issue, upon 
the second sons and their issue, hy way of renuiinder, and so 
on, with restrictions aLCainst alienatiiju. Jhit the adoption of 
the doctrine of eouditionid fees tended to defeat this intended 
entailment, and caused the harons to appeal to Edward 1. to 
restoi-e the ancient law of Alfi'ed for the preservation of 
entails.' 

7. This led to tlic enactment of the famous statute De 
Donix CouJitionalif'US (13 Edw. I. 8tat. 1, c. 1, § li). Hut 
hcfore stating the suh.stance (jf this statute, a hrief explanation 
is necessary. 

8. In tracing the history of the descent of estates, we find 
that children first succeeded to the feud in place of their 
fathers, and grand-children in the plac(! of children. If no 
children, brothers might succeed to brothers, if tlie feud was 
an ancient one. The admission of collateral relations of the 
blood of the first feudatory was the last step in the law of de- 
8cent.2 " Heirs," therefoi-(% as at first used, meant the issue of 
the tenant or vassal, to the exclusi(;n of all collateral relations. 
But by the time of Henry 11., collateral kindred had been 
admitted as lieirs, and if a donor wished to confine the inher- 
itance to the ofTspring of the donee, he was obliged to limit it 
expres.sly to him and the heirs of his body.^ 

9. This was construed a conditional fee, as is above state<l. 
And there was one other conditional estate of inheritance 
which is referred to in tlic statute, and it is mentioneil here in 
order to explain it, and that wha frank marriage^ which 
applied to a case * where a father or kinsman, upon a [*'>8] 
person marrying his daughter or cousin, gave thcMU 
lands, and it was understood to be ujjon the condition that 
these were to descend to the issue of such marriage, if any. 
If the donees had issue, the condition was considennl as 
having been performed, and the estate theiebv J»ecame alien- 
able.* 

10. The statute De Donis recites, liy way of preamble, the 
custom of giving lands to a man and his wife and to the heirs 

> 1 Spence, Eq. .Tur. 141. " Wri^lit, Ten. 16-18 ; 2 BI. Com. 220-222. 

• 2 Bl. Com. 221 ; Wins. Real Prop. 31, 32. < 1 Cruise, Dig. 71. 



100 LAW OF REAL PROPERTY. [BOOK I. 

begotten of their bodies, with an express condition of reverter 
upon the faihn-e of such heirs. Also the custom of giving 
lands in frank marriage which contains an implied condition 
of reverter if the husband and wife die without heirs of their 
bodies, and also of giving land to another and the heirs of his 
body issuing. It then recites the custom above referred to, 
of aliening lands after issue born, " to disinherit their issue 
of the land contrary to the minds of the givers, and contra 
formam in dono exjjressam.^^ It then declares, in substance, 
that the will of the giver, according to the form in the deed of 
gift manifestly expressed (^secundum formam in charta doni 
8ui), should from henceforth be observed, so that, among other 
things, they to whom the land was given under such condition 
should have no power to alien the land so given, but it should 
remain unto the issue of them to whom it was given after their 
death, or should revert unto the giver or his heirs, if issue 
fail, &C.1 

11. The effect of this w^as, to divide the entire inheritance 
into two parts or estates, namely, the estate tail and the re- 
version or remainder in fee expectant upon the failure of the 
estate tail.^ 

12. In translating this statute from the Latin in which it 
was written, the word lands is used where the original word 
was tenementiim, which, in fact, embraces not only corporeal 
hereditaments, but incorporeal also, which issue out of or are 
annexed to those that are corporeal, such as rents, estovers, and 

commons, though they cannot be said to lie in tenure.^ 
[*69] * 13. But an ownership merely personal, or such as 

is to be exercised about chattels, cannot be the subject 
of entailment.* 

14. The statute Be Bonis was regarded by the courts as a 
remedial one, and instead of confining it to the precise cases 
enumerated in it, they regarded these as put by way of ex- 

1 2d Inst. 332, 333 ; 2 Prest. Est. 378. 

2 Atk. Conv. 194. This statute, commonly known as that of Westmin- 
ster 2, is generally supposed to have introduced estates tail into the English law. 
But it would be more accurate to say that it established them there. Barringt. 
St. 113. 

8 2 Bl. Com. 113 ; Co. Lit. 19 b. 

* 2 Bl. Com. 113 ; Co. Lit. 20 a, and note 120. 



Cii. IV.] ESTATKS TAIL. 101 

ani|)lo. And tlio rffcct of it \va.-> to introduce a now cliLs.s of 
estates or jrive u dilVerent iiuality to iin old one.' It wa.s con- 
sidered as dcsi^nied to preserve the property and maintain tin' 
Ifrandeur of e.xistinir powerful families, by securing: to owners 
of estates the liherty to dis|)o.se of sueh jiarts tln-reof as came 
under the denomination of tenements^ in such manner, aM<l 
bv such an order of succession, as their own inclination oi- 
in<::enuity might devise.'-^ 

15. The statute, in its several hearinLTS, was slowly devel- 
oped, and it was not until the time of Edward 111. that it was 
settled that an estate limited to one and the heirs male of his 
body, would be confined in its descent to males alone. And 
it was long doubted whether an entailment to heirs female 
could kcej) the succession in the line of females tracing 
descent through females.'^ 

1(). The fruits of these entailments at la.st began to mani- 
fest themselves. Children, being independent of their pai-ents, 
grew disobedient. Creditors could no longer enforce payment 
outof the lands of their debtors. Lands weie withdi'awn from 
connnerce, or purchasers were defrauded by secret entails. 
And the crown even lost its restraint upon treasonable prac- 
tices through the terror of forfeitures, until at length the de- 
sire grew general to rid tin,' land of a law fraught with so 
many evils. 

17. Every attempt, however, to change tlic law was met by 
the resistance of powerful landholders, for whose benefit it 
had been made, and it was only after an endurance of two 
hundri'd years that, by a contrivance of the courts and a bold 
measure of judicial legislation, this act of Parliament was 
evaded by enabling the tenant to change his fee-tail into a 
fee-simple.* 

* 18. This was accomplished, to a limited extent, by [*T0] 
means of levying fines, Ijut fully and completely by 

» 2 Prest, Est. 380; Id. 453. 

» 2 Bl. Com. 116 ; 2 Prust. Est. 4.^3. « 2 Prcst. Est 4:.3. 

* Tiiltaruiirs Case, Year Book, 12 K.hv. IV. 19 ; 2 PI. Com. 116 ; Wnis. \\ca\ 
Pmp. 39 ; 2 Prcst. Est. 454 ; Tuil. Cos. 608 ; 10 Hep. 37 a. This wa-s done, .says 
Spence, by the judges in the roipn of Edw. IV., "in the exercise of their Pre- 
toriau authority." 1 Spence, Et^. Jur. 143. 



102 LAW OF REAL PROPERTY. [bOOK I. 

means of common recoveries. These were borrowed from the 
" cessio in jure" of the Roman law.^ These, though now abol- 
ished in England by the statutes 3 & 4 Wm. IV. c. 74, and, 
so far as fines are concerned, having prevailed in this country 
in but very few of the States, and as to recoveries to a certain 
extent only, have played too important a part for centuries, in 
English conveyancing, to be passed over unnoticed. Fines are 
said to have been in use from a very early period of the Eng- 
lish history. They consisted of a suit brought between actu- 
ally litigating parties, where, by permission of the court, they 
entered a final agreement, finalis concordiay upon the record, 
which was binding upon them like any judgment of court. 
When applied to bar entails, the person to whom it was to be 
conveyed, acting in collusion with the tenant, brought a feigned 
action against him for the land. The finalis concordia, of 
course, was thereupon entered into between them, for form, 
and became a matter of record, whereby the claimant's right 
to the land was admitted and established. The statute Be 
Bonis declared that sucli fines should not bar entails. But 
one passed 4 Hen. VII., and one in 32 Hen. VIII., allowed 
them to bar heirs claiming under the entail.^ 

19. The process above described was called " levying a 
fine," and was much in use in barring adverse claims by " non 
claim," as it was called. But the mode of barring estates tail 
which came into use after Taltarum's Case (12 Edw. IV. a. d. 
1472), and the only effectual mode, was a common recovery. 
This, too, it seems, had been in use before the statute Be 
Bonis, and had been contrived as a mode of evading the stat- 
utes of mortmain ; but was put an end to for that purpose by 
the statute 13 Edw. I. c. 32.^ This was a fictitious suit 



1 M.iine, Anc. L. 289 ; Gains, C. L § 134, n.; C. II. § 24. 

2 1 Spence, Eq. Jur. 143 ; 2 Flint, Real Prop. 673 ; Shelf. R. P. Stat. 275 ; 
Tud. Cas. 689. A case of the levy of a fine occurred in New York in 1827. 
Fines were abolished there in 1830. McGregor r. Comstock, 17 N. Y. 162. Fines 
and recoveries were abolished in New Jersey in 1799 ; Croxall v. Shererd, 5 
Wall. 268 ; but fines were in force in Pennsylvania in 1837 ; 4 Kent, Com. 497, 
note ; Ricliman v. Lippincott, 29 N. J. 44. They never were known in Missouri. 
Moreau v. Detchemendy, 18 Mo. 527. 

8 Wms. Pical Prop. 39 ; 2 Bl. Com. 271; 1 Spence, Eq. Jur. 144, n.; Tud. 
Cas. 607. 



CM. I V.J ESTATES TAIL. I(l3 

broujrht ill the nanio of the jtcrson who was to purchaso the 
estate, a<;:iiust tht* tenant in tail who was willinj^ to convey. 
The t(nant, instead of resisting this ehiim hinjHelf, 
under the pretence that lie had •ae(|uired his title of ['71] 
some third peison who had warriiiitcd it, vouched in, 
or, hy a process from tlie court, called this third person, tech- 
nitidly the vouchee, to come in ami defend the title. 'I'he 
vouchee came in as one of the ilnnndtin ptrsoncc of this judi- 
cial farce, and thru without sayim^ a word disappeared and 
■was dffaidtcil. It was a princijde of the feudal law adopted 
thence hy the common law, that if a man conveyed lands with 
a warranty, and the grantee lost his estate by eviction l»y one 
liavinir a better title, he should }.^ive his warrantee lands of 
c(pial value l»y way of recompense. And as it would be too 
barefaced to cut olT the riirhts of reversion as well as of the 
issue in tail, by a judirment between the tenant and a stranger, 
it was gravely adjudged, 1st, that the claimant should have 
the land as having the better title to it; and 2d, that the ten- 
ant should have judgment against his vouchee to recover lands 
of e(pial value on the ground that he was warrantor, and thus, 
theoretically, iioliody was harmed. If the issue in tail or the 
reversioner, or remainder-man, lost that specific estate, he was 
to have one of eipial value through this judgment in favor of 
the tenant in tail, whereas in fact the vouchee was an irre- 
sponsible man, and it was never expected that he was anything 
more than a dummy in the game.^ The result of this, wliich 
iJlackstonc calls '* a kind of y>/a fraus to elude the statute De 
Doni)*"^ and another writer " a piece of solemn juggling,"^ 
was that the lands passed from the tenant in tail to the claim- 
ant in fee-simple, free from the claims of reversioner, re- 
mainder-man, or issue in tail, and he either paid the tenant 
for it as a purchaser, or conveyed it back to him again in fee- 
simjtle."* 

' 2 Flint, Real Prop. 673, 674 ; 1 Sj)oncp, E.]. Jur. 143. 

» 2 HI. Com. 117. » Wms. Real Prop. 41. 

* 1 Silence, Ecj. Jur. 144. Taltarum's C"a.se U reported in Year Book, 12 Edw. 
IV. H», and is translated into EnRlish in Tud. Cnj». 562. See Shelf. R. P. 
Stat. 276. A similar proieeilinj.; juev.iiled in the Roman law und<T th<' name 
of cessio in jure, and with the same clTect as at common law. Elaine, Auc L. 
289. 



104 LAW OF REAL PROPERTY. [bOOK I. 

19 a. A common recovery by a tenant in tail has the effect 
to bar his estate tail and all remainders over and the rever- 
sion depending on that estate, and all conditions and collateral 
limitations annexed to the same estate.^ And it is held that 
an executory devise may be destroyed by a common recovery 
suffered by the tenant in tail, which enlarges his estate into a 
fee, and excludes all subsequent limitations, whether in re- 
mainder or by way of springing use or executory devise.^ So 
a recovery suffered by a tenant for life will cut off a contin- 
gent, but not a vested remainder.^ 

20. The right thus acquired of barring them seems to have 
become, in the theory of the law, an inherent, inseparable in- 
cident to estates tail, so that any attempt to restrain the 

[*72] exercise *of it by the tenant, by covenant or condition, 
was futile, as such restraint was held to be void.* 

21. The consequence was, that the possibility of entailing 
estates in England for any considerable length of time was 
and still is practically done away with. To accomplish it re- 
quires frequent resettlements of the estate on successive gene- 
rations, by means of marriage settlements, which have become, 
in consequence, a very common measure there. In this coun- 
try, estates tail, as a distinctive class, are abolished in many of 
the States. In others, where they are still retained, they may 
be barred, usually, by a simple deed by the tenant, — it being 
the policy of the law in both countries to favor the free aliena- 
tion of all kinds of property.^ The deed of an infant or non 
compos tenant in tail may be impeached, but a judgment 
against such tenant in suffering a recovery could not be 
collaterally.^ 

22. Estates tail, then, are estates of inheritance, which, in- 
stead of descending to heirs generally, go to the heirs of the 
donee's body, which means his lawful issue, his children, and 
through them to his grandchildren in a direct line, so long as 
his posterity endures in a regular order and course of descent, 

1 2 Piest. Est. 460 ; Pigott, Recoveries, 21 ; Page v. Hayward, 2 Salk. 570. 

2 Taylor v. Taylor, 63 Penn. St. 481. 
8 Doe V. Gatacre, 5 Biiig. N. C. 609. 

4 Co. Lit. 379 b, n. 300 ; 1 Spence, Eq. Jur. 144, n. 

6 Wms. Real Prop. 45, 46. « Wood v. Bayard, 63 Penn. St. 320. 



ClI. IV.] ESTATES TAIL. lO.j 

and, iijtnii ilic extinction of such issue, the estate doternjiiws ' 
A devise to one's sons, and, in case any one <tf them dies unnjai- 
lied or without issue, his sliare to he tiivided anion^ the sur- 
vivors, creates an estate tail in each son, witli remainders o\cr 
to the survivors.- So wliere the devise was to a dau^diter, liut 
if she died without lieirs, then to <^i> to her hrother, it was held 
to mean heirs of her body, because if to her heirs generally, 
her brother would be one of these, and take by descent.-* 

23. The one who makes the estate is called the donor ; he 
to whom it is nnule the donee. In order to create an estate 
tail there must be a limitation in express terms or by direct 
reference not only to heirs, but to heirs of the donee's body. 
If it be to a man and his heir, it will not ordinarily |)as8 an 
estate of inheritance, thoutdi in a will it may, on the {ground 
of carryint^ out the devisor's intention.* 

24. An instance of an estate tail by construction, where 
there is no direct limitation to the heirs of the donee's body, 
would be an estate to A, with a proviso that if he shall die 
without heirs of his body, the estate shall revert to the donor 
or go over to one in remainder. Here, it will be perceived, 
there was no direct limitation to the heirs of A, and it 

is too j)lain for doubt * that the donor intended the ['73] 
lieirs of his body should take it at his decease, for he 
gives it over, or reserves it, in case he has no such heirs, and 
only in that continirency.^ 

25. But if the gift be to A and his heirs, so long as ho, or 
some other jtcrson named, has heirs of his body, it is a fee- 
simple determinable, and not an estate tail. The heirs who 
may take are unlimited, but the duration of their estate is 
limited and measured by the length of time that the line of 
8ucc«'Ssion ni heirs of the donee's body, or of the other j)erson 
named, may last.*^ 

20. And a deed to A and his heirs of lands, to have and to 



» 2 Prest. Est. 360, 374 ; 1 M. 451 ; Wms. Real Prop. 30. 

« Matlack v. Rolierts, 54 Pciin. St. 148 ; Allen v. Trustees, 102 M.-Uks. 262. 

» Fahrney r. Holsinger, 65 reiin. St 388 ; Shutt r. Rainlw, 57 IViiii. St. lift 

« 1 Prest. Est. 451 ; 2 Prest. Est. 397, 398 ; White v. Collins, Com. 289. 

6 Perkins, § 173 ; Allen r. Trustees, 102 -Moas. 262. 

• 2 Prcst. Eat, 353-360 ; Id, 301 ; 2 Ml Com. 113. 



106 LAW OF REAL PROPERTY. [BOOK I. 

hold (^habendum), to the heirs of his body, limits and qualifies 
the estate otherwise a fee-simple, and reduces it to an estate 
tail, defining in effect in the second clause what was meant 
by " heirs " in the first.^ So a limitation to A B and his 
heirs, and if he die without issue of his body, then remainder 
over to some other person, it would by this clause, as to issue 
of his body, be understood as restricting the general word 
heirs to heirs or issue of the donee's body.^ 

27. On the other hand, if the first grant had been to A and 
the heirs of his body, with the habendum to A and his heirs, 
without any terms of restriction, the courts, in order to give 
effect to both clauses, if possible, would hold that he first 
creates an estate tail, and that so long as he has issue to take 
they will take as tenants in tail. But if at any time such line 
of issue fail, then the estate would go to his heirs generally, 
so that he is said to take an estate tail in prcesenti, with an 
estate in fee-simple in expectancy.^ 

28. Much that has been said in a former chapter in relation 
to fees being determinable upon the happening of some event, 

applies to fees tail, as where an estate is limited to 
[*74] one and the heirs of his * body, so long as a tree shall 

stand, or until A shall return from Rome, or until the 
donee or some third person shall do some prescribed act. So 
the estate may be defeasible by the happening of some con- 
dition. So it may be limited to one and the heirs of his body, 
tenants of the manor of Dale, and the like. The same rule 
applies in these cases as has been stated, heretofore, in relation 
to fees-simple determinable and upon condition, as to the estate 
being defeated or defeasible thereby.^ 

29. It has already been stated that an estate tail is one of 
inheritance, and therefore cannot exist in respect to a mere 
freehold estate for life or in a chattel interest. And a limi- 
tation in terms which would create an estate tail if applied 

1 2 Prest. Est. 509 ; Altham's Case, 8 Rep. 154 b. 

2 Per Ld. Holt, Idle v. Cooke, 2 Ld. Raym. 1152; Brice v. Smith, Willes, 1; 
Hulburt V. Emerson, 16 Mass. 241 ; 2 Prest. Est. 519 ; Hay ward v. Howe, 12 
Gray, 49 ; Gilford v. Choate, 100 Mass. 343, 345. 

3 Perkins, § 168 ; Co. Lit. 21 a ; Altham's Case, 8 Rep. 154 b ; Corbin v. 
Healy, 20 Pick. 514. 

4 2 Prest. Est. 362 ; Id. 446. 



en. IV.] ESTATES T.ML. lOT 

to real ostutc would vest the wliolr mitn-.^t ni)Soliit«ly in the 
first taker if eiuployed as to chattels or chattel interests in 
lands, and a limitation of chattels over to the issue of the lirst 
taker would ho void, hecause the statute I)c Duuitt apjdics 
only to lands and tenements.' 

30. In all cases whcic the heirs of a donee in tail fak<' the 
estate, they do so hy descent and n<»t l»y jmrchasi'. Ihit the 
heirs in such case do ni»t cdaim the estate as comin^^ from their 
ancestor as its source, hut as an estate coming tlu'outrh him 
as special heir, which he cannot intercept excejjt in the mode 
provided hy law.^ IJut if the limitation were to the heirs of 
the hody of A, whoever answers to that description would 
take as purchasers, antl the estate would then descend to the 
same issue and in the same order of succession as if the estate 
had heen limited to A and the heirs of his hody.'' 

31. Under the doctrine of entails, the form of the g^ift, 
rather than the general canons of descent of estates, is to he 
refi'rred to, to determine the line of succession in which the 
estate is to pass.'* It is therefore requisite, in order to create 
such an estate, that, in addition to tin; word heirs, there should 
be w(jrds of procreation which indicate the hody from which 
these heirs are to proceed, or the j)erson l)v whom 
hegotten. If this is * done, it may not he necessary [*75] 
to make use of the words " of the body," if, by the 
description, it aj)pear8 that they are to be the issue of a par- 
ticular jjcrson.^ A general limitation to a man and the heirs 
of his body is sufficient, it being immaterial of whom be- 
gotten.^ 

32. The form of limiting the estate, whether it be to one 

• 2 Bl. Com. 113 ; Whitinore r. Weld, 1 Vern. 326 an<l 343, n. ; Co. Lit. 20 r, 
and n. 120 ; ('liild v. Bay lie, Cro. Jac. 461 ; Atkin.son r. Hutchinson, 3 P. Wms. 
258 ; 2 Jurui. Wills, 489, and Perkins's note ; Biitton v. Twining, 3 Mt-r. 176, 
183 ; Stockton t'. Martin, 2 Bay, 471 ; Wms. Ex. 565 ; Id. 949 ; ante, pi. 12, 13. 
Albee V. Carpenter, 12 Cush. 382. But see Forth r. Chnpnian, 1 P. Wms. 663 ; 
Hall r. Priest, 6 Gray, 18, 22 ; that a dilFerent con.struction may U- given to tho 
words " leaving no issue." I'tvit, vol. 2 •365. 

' Perry v. Kline, 12 Cush. 127. » 2 Prest. Est. 360 ; Id. 375. 

• 2 Prest Rst. 375. 

• 2 Prest. Est. 478 ; Co. Lit. 20 b ; 2 Bl. Com. 115. 

• 2 Prest. Est 412. 



108 LAW OF REAL PROPERTY. [BOOK I. 

and the heirs of his body begotten, or to such heirs to be 
bcg-otten, is immaterial, for in the former case it would extend 
to children born after the gift, and in the latter would em- 
brace those already born.i 

33. The estates thus far spoken of come within the class of 
estates tail general, which are such as are limited to a man 
and the heirs of his body without any further specification. 
But there is a class of these which are called estates tail spe- 
cial, where the limitation is to some particular class of heirs 
of the body of the donee, as to those begotten on his wife 
Mary, and the like. So it may be to tlie heirs male or female 
of the body of the donee, making an estate tail male or an 
estate tail female. Such limitations as these confine the 
inheritance to the special issue prescribed, and none other 
can succeed to it. Thus, if the estate be limited to a man 
and the heirs of his body by his first wife, and she die with- 
out issue, no issue by any other wife could claim the inheri- 
tance.^ 

34. If, for instance, the gift be to A and the heirs of his 
body, on his wife Mary begotten, it presupposes that he then 
has a wife of that name. And if such is not the case, the gift 
would fail. But if it be to A and the heirs of the body of B 
his wife, who is dead, it is an estate tail, if there are any issue 
of that wife living when the gift is made. But if there are 
no such issue living, instead of his becoming tenant in tail, he 
is merely tenant for his own life. He is not even tenant in 
tail after possibility of issue extinct, which will be hereafter 
explained.^ 

35. In order to have a limitation in special tail good 
[*76] where *the issue is to be begotten of some woman 
named, she must either be the donee's wife or one who 
by possibility may become such. If, for instance, she was so 
near akin to the donee as to render it unlawful for them to 
marry, the estate would be in him only for life.^ 

1 2 Prest. Est. 449, 450. 

2 2 Bl. Com. 113, 114 ; 1 Spence, Eq. Jur. 141 ; 2 Prest. Est. 413, 414, 
420. 

8 2 Prest. Est. 414 ; Co. Lit. 27 a, n. 155 ; 2}ost, p. *83. 
4 2 Prest. Est. 417. 



CIl. IV.] ESTATFS TAIL. 100 

3n. But it is imnuitrriul how inji»i(tlialili» it may lio lliat the 
donee iimy ever marry the woman named, or imposhiMe that 
if married tliey should ever have issue. Thus, supiiose the 
donee i.^ married at the time, and the woman named is tlie wife 
of anntlier, it is enough that possibly his wife and the hus- 
haiid i>f (hr other wom;iM may die, and he and she may inter- 
marry and have issue, li(»wt'ver imjirolialih'. So if th«" done*? 
and the woman named are married at the time of tlio ^'ift, 
and the estate is limite<l ((» liini and the heirs of his hody on 
such wife heirotten, it would l)e an estate tail, thonirh she was 
at the time an iiundred years old, and would not be an estate 
tail after possibility of issue extinct so long as the parties 
named are livin<r.^ 

37. Where the limitation is to one and the heirs male, or 
to him anil the heirs female of his body, it confines the inher- 
itance to the one line and exeludes the other from the suc- 
cession. So that whoever claims by descent must be able to 
trace his or her line back to the donee through males alto- 
gether or females altogether. And this case is put by way of 
illustration. Estate to A and the heirs male of his body, 
remainder to the heirs female of his body. Here there are 
two lines. If the males run out, the estate will then go by 
way of remainder to his heirs female. If then the donee were 
to have a son who has a daughter who has a son, this son last 
named could take nothing, since, being a male, ho cannot 
trace through his mother, and she, lieing a female, could not 
trace through her father, and the land in such a case would 
revert to the donor. Hail the remainder been to the heirs of 
his body generally, it might have descended in the case sup- 
posed to the great-grandson of the donce.^ 

88. In regard to making use of proper technical 
terms in •creating estates tail by deed and by will, the [*TT] 
same rules of strictness or latitude apply as in the 
manner of estates in fee-simple. Thus a grant to a man and 
his heirs male, by deed, would be construed to create a fee- 
simple for want of the requisite words, "of his body," or their 

1 Id. 395. 

« Co. Lit. 25 b ; 2 Bl. Com. 114 ; 2 Prest. Est 402, 403; Wms. Real Prop. 80; 
Holburt V. EroersoD, 16 Mass. 241. 



110 LAW OF REAL PROPERTY. [BOOK L 

equivalent. But if it had been by will, the law, to carry out 
testator's intention, would supply these words and regard it a 
fee-tail.^ 

39. Among the illustrations given of estates tail having 
been created by deed without the use of the words, " of the 
body," but with words regarded as equivalent, are — to A 
and his heirs, namely, the heirs of his body — or of himself 
lawfully issuing or begotten — or of his flesh, or of his wife, 
begotten, — or which he shall happen to have or beget.^ 

40. And yet if the word " heirs " is wanting, the estate is 
only one for life, though terms of entailment even stronger 
than those above mentioned were used. Thus a grant to A 
and his issue of his body, or to him and his seed, or to him 
and his children or offspring, would only create an estate for 
life, provided the estate be created by deed.^ 

41. So a gift to A and his eldest son and heir male of the 
said A begotten was held not to be an estate tail, the words 
"heir male" being qualified, explained, and limited to be the 
same thing as son, a description of the person to take, and 
not a term of limitation and inheritance.* 

42. But where the gift was by devise to a man and his seed, 
or his heirs male, or his children, if he then have none, or to 
him and his posterity, or by other words showing an intention 
to restrain the inheritance to the descendants of the devisee, 
it would create an estate tail.^ Thus a devise to J S and 
his heirs if he should have lawful issue, but if he die without 
issue then over, would create an estate tail in J S.^ 

43. There is a rule in respect to the nature of estates, which 
prevails in England and in several of these States, though 
abrogated by statute in others, called the Rule in Shelley's 

Case, which has given rise to questions of no little 

[*78] nicety and * refinement in respect to estates tail, which 

it seems proper to allude to here, although it is treated 

1 2 Bl. Com. 115 ; Co. Lit. 27 a ; 2 Prest. Est. 536, 

2 Co. Lit. 20 b ; 2 Prest. Est. 485. 

8 2 Prest. Est. 480. * 2 Prest. Est. 481, 482. 

6 2 Bl. Com. 115; Id. 381 ; 2 Prest. Est. 537; Nightingle v. Burrell, 15 Pick. 
104. But if the first gift is for life, the children take only a remainder. Taylor 
V. Taylor, 63 Penn. St. 481, 488. 

6 Arnold v. Brown, 7 K. L 188. 



CU. IV.] ESTATES TAIL. Ill 

more at larjxe in iinotlu'r jiart of the work. Thus, if an c-.statc 
lie ^'iven to a man for life, remainder to his heirH or to the 
heirs of his hudy, instead of this being, as it aiiparenfly is, 
and as, hy statute, it is declared to he in many of the L'nite<i 
States, an estate for life, renuiiuder to the heirs of the tenant 
for life, it is held that the word heirs is intended to denote the 
(>\tent and character of the estate which the first taker has, — 
in other words, that it is a term of limitation and not of pur- 
chase, and if the heir takes it all, he takes by descent and not 
by purchase.^ It was held in New Jer.sey that a grant to a 
married woman for life, and at her death to lier children, of 
her by her iiusliand begotten, was an estate tail in tin- wife, 
nor woulil it enlarge it to a fee, although the covenants in the 
deed were to her and her heirs generally.'"^ Of course, to bring 
a case within the rule, the limitation to the heirs must be to 
heirs who would take the entire estate limited to the first 
taker. For if, for instance, the first estate be limited to A 
and B, and the limitation over be to the licirs of B, it turns 
the estate of A and B at once into a joint-life estate, and the 
heirs of B would take as purchasers or remainder-men, for 
they could not take by descent, being heirs only of one.^ 

44. Now, to apjtly this rule in cases of limitation of an es- 
tate to husband and wife and their heirs in tail, the question 
usually is, arc these heirs the heirs of the body of the two or 
of one only of them, because in one case the heirs take, if at 
all, by descent within the rule in Shelley's Case, — in the other 
as nuuainder-men and purchasers. If the gift is to the hus- 
]>and and his lieirs which lie shall beget on the body of his 
wife, it creates in him an estate tail, while his wife takes no 
estate by the gift. If the remainder be limited to the heirs of 
the body of the wife by the husband to be begotten, she is the 
one who takes an estate tail, and not the husband. But if it 
be to A and his wife, and their heirs on the body of the 
wife begotten, they both take estates tail. And in all these 

1 The reader will bear in mind that there are only two ways oi u ■.imrmg rvnl 
estate, one by dtxcnt, the other hy purchasf. If a niau does not take as heir, bo 
takes by purchase, no matter how he acquires hia title. 

2 Rom r. Adams, 28 N. J. 160, 168. 
« 2 Prest. Est. 441, 442. 



112 LAW OF REAL rROPERTY. [BOOK 1. 

[*79] cases the heirs take, if at all, by descent,^ * and not by 
purchase, while the limitation to the heirs will vest an 
estate tail in that ancestor with reference to whom the word 
heirs is used. If the estate is given to both husband and wife, 
each has a life estate, and if the one whose heirs are to take 
dies first, his heirs take an estate tail in remainder after the 
death of the other tenant.^ 

45. On the other hand, if the estate be to husband for life, 
or wife for life, remainder to the heirs of the bodies of hus- 
band and wife, the heirs take as purchasers and not by de- 
scent ; and the same would be the case if the limitation were 
to husband or to wife and the heirs of the bodies of husband 
and wife.^ 

46. And it may be remarked, in passing, that for reasons 
hereafter explained, such a remainder would be a contingent 
one, so long as the parent whose heirs were to take, lived, be- 
cause, as, nemo est hceres viventis, the person who is to take 
as heir could not be ascertained till the parent's death.* 

47. And it may be further remarked that at common law, 
if by a devise an estate is so limited to heirs that they will 
take it, if at all, by descent from one to whom the life estate is 
given, and the estate to the latter fails by lapsing in conse- 
quence of his dying during the life of the testator, the estate 
to the heir fails also ; whereas, if it had been to them as pur- 
chasers, the death of the ancestor would not affect the gift to 
the heirs of the body.^ 

48. Among the incidents of estates tail, the tenant may freely 
commit waste upon the premises as if he were tenant in fee- 
simple,^ though he cannot by selling growing timber, authorize 

1 The term descent, as used in this chapter in connection with the transmission 
of an estate to the issue in tail upon decease of the ancestor, tenant in tail, is in- 
tended to indicate that he takes it as an estate of inheritance in tail, and as being 
of the prescribed line of issue or inheritance, and not simply from his intermedi- 
ate ancestor, since he t&kes per formam doni from the person who first created the 
estate. 1 Cruise, Dig. 83 ; Partridge v. Dorsey, 3 Har. & J. 302 ; Perry v. Kline, 
12 Cush. 118, 127. 

2 2 Prest. Est. 443, 483 ; Denn v. Gillot, 2 T. R. 431. 
» 2 Prest. Est. 441, 442. 

* Frogniorton v. Wharrey, 2 W. Bl. 728, 730 ; s. c. 3 "Wils. 144. 

5 2 Prest. Est. 442 ; Burrage v. Briggs, 120 Mass. 103. 

6 Co. Lit. 224 a ; 1 Atk. Conv. 195 ; Jervis v. Bruton, 2 Vem. 251. 



(11. IV.] ESTATES TAIL. 11,'i 

it to bo cut alter liis doccatto, it being a right belonging to bini 
only as toniint.' 

49. Dower ami curtesy are also incidents of this as 

of estates * in frc-.siiujilt',' an«l althou'^h the tenant may ['80] 
not charge tlu* estate by his agre«'nients or with his 
debts or incunil)rances, so as to alTect it after his death,' it is 
now, by statute, made liable to a limited extent for the debts 
of the tenant, and may be sold by assignees in bankruptcy or 
insolvency of the tenant, to the same extent as he could have 
disposed of it.* 

50. If tlu're are outstanding charges <»r iiiciiiiiiiraiice.s upon 
the estate, the tenant is not bound in pay them olT ; and it has 
l>een held that he was not compellable by the reversioner or 
remainder-man to keeji down the interest, except in special 
cases, although it is incumbent upon a tenant for life to do so. 
And the reason appears to be that e(piity considers the estate 
as his own, and that he may keej» down the incumbrance or 
lose the estate as he please.s. Uut if he does pay it oft", he 
is considered as doing it on his own account, and cannot by 
so doing make himself creditor of tlu; estate for the amount, 
unless he takes an as.signment to himself of the incumbrance 
which he pays.** 

51. As a proposition almost universal, where a greater and 
less estate come together in one jierson by the same right, 
without any intervening estate, they will unite in one, the les- 
ser being merged or swallowed up in the greater. IJut this does 
not apply in case of estates tail. If the tenant ac(piire the 
reversion or remainder in fee-simple, it does not merge the 
limited estate which he has as tenant in tail. And this grows 
out of thi' statute iJf Douia, which meant to restrain him as 
tenant from passing this estate out of him, which he might 

» Liford's Cuae, 11 Rt-p. 50. » Co. Lit. 224 a. 

• Wliurton V. Wharton, 2 Vom. 3, nml n. ; 1 Atk. Conv. ly" ; Ht-rtHrt r. 
Frcwii, 2 Va[. Cius. Abr. 28, § 34 ; PurtriJf^u r. I)on.«;y, 3 Ilur. & J. 302 ; 1 CruUe, 
DiK- S4. 

* Tud. Ciw. fll4 ; 1 Atk. Conv. lys. 

» 1 Cniis*., Diff. 7r. ; Tu.1. Cn«. 638 ; Chnpliu r. Chaplin, 3 P. Wm«. 229 ; 2 
Ijiw .Miif;. 26.''), 2t5«, 270. Soe, an to o-jiiity iippointing m-fivpn. to collect ivnU 
and kp»'p ilown the inten'st on incumbranci-H «ipon estates tail. Story"* ¥a\. $ 835 ; 
Jertniy, K.i. Jur. 251, 252 ; Bertio r. Abingdon, 3 Mer. 560. 
YOU I.— 8 



114 LAW OF REAL PROPERTY. [BOOK I. 

easily have done if by his acquiring the reversionary interest 
it had merged in the reversion.^ 

52. So long as an estate retains the character of an 
[*81] estate * tail, it will descend, in due course of law, to 
the issue of the donee, who answer the requisite de- 
scription, however remote in degree, from the person to whom 
the gift may have been originally made, each of whom in suc- 
cession will be tenants in tail, with all the powers and rights 
which the common ancestor, the donee, had in respect to the 
estate, so long as there may by possibility be issue to answer 
to this description.^ 

53. In England, the course of descent of estates in fee- 
simple and fee tail general, is the same by the common law ; 
as for example, to the oldest son, if the ancestor have sons.^ 
And the same rule applies in this country, where the subject 
is not regulated by statute, the oldest son of the donee and his 
oldest son, and so on, taking in succession.* 

54. And yet this theoretic perpetuity of succession has 
practically little effect. By the ease with which estates tail 
may be barred and converted into fees-simple, strict and con- 
tinuous entails have long since been virtually abolished in 
England ; and the remark applies with greater force in this 
country, where, as will be seen, not only may they, where they 
exist, be barred with equal facility, but in many States such 
estates have been wholly abolished.^ 

55. The mode of effectually barring these estates or con- 
verting them into estates in fee-simple was formerly by com- 
mon recoveries, which has already been spoken of. Since 
these have been abolished in England, it may be done by deed 
executed by the tenant in tail and enrolled in chancery within 
six months after its execution. The form and effect of this is 
regulated by the statute 3 and 4 Wm. IV. c. 74, which makes 
provision, in certain cases, for guarding against injustice be- 
ing done to parties in interest, by requiring the assent of a 

1 Wiscot's Ca.se, 2 Rep. 61 ; 1 Atk. Conv. 194 ; Roe v. Baldwere, 5 T. R. 104, 
110; Poole V. Morris, 29 Ga. 374. 

2 2 Prest. Est. 394; Wms. Real Prop. 53 ; Corbin v. Healy, 20 Pick. 514. 
8 Wms. Real Prop. 63 ; Id. 45. 

'• Corbin v. Healy, 20 Pick. 514 ; Wight v. Thayer, 1 Gray, 284. 
6 Wms. Real Prop. 64 ; post, *84, 



ClI. IV.] ESTATES TAIL. 11.", 

person calltMl a protector to such sale, in order to its \if\wj 
an rllVctiial bar. J!ut il.s gn-at Iciiirtli renders it neces- 
sary to reler the reader to the * statute itself for its [•>'l^J 
vari(jus j)rovisions.' The mode of barring estates tail 
in this country will be noticed by it.sj.df. 

6(>. Althoui,di this may n<jt be the place to treat of it at 
large, it may bo i)ro|ier, in this connection, to say that it is 
very common in Englaml to create a temporary entailment 
of lands in the donor's family by means oi marriage settle- 
ments, which may extend through one generation, and until 
the person in the second who is to succeed to the estate, 
usually an oldest son, is of age, to bar it l>y his deed, as he 
may do by consent of the tenant actually in j)Ossession. This 
he generally dues by making a new settlement, u.-iually in 
favor of an oldest son ; and so primogeniture, as it obtains 
among the gentry there, is a matter of custom rather than of 
legal right, since these conveyances might always be made to 
strangers. To explain this, one form of making these settle- 
ments is to convey lands to the use <jf the husband for life, 
Avitli provisions for the wife and daughters therein, and then 
to the oldest son who might be born of the marriage, in tail, 
and, in case of his dying without issue, then to the second 
son, and so on to the third ; and to daughters in default of 
son.s. And in this way the estate is locked up from alienation 
till some tenant in tail is twenty-one years of age, and sees lit 
to bar the entail in the manner above stated.- 

57. Still the pidicy of the law is against clogging the free 
alienation of estates, and, as will be shown hereafter, it has 
become an imperative, unyielding rule of law, first, that no 
estate can be given to the unl)orn child of an unborn child ; 
and second, that lands cannot be limited in any mode so as 
to be locked up from alienation beyond the ])eriod of a life 
or lives in being and twenty-one years after, allowing the 
period of gestation in addition, of a child en ventre sa mere, 
who is to take under such a limitation. This is borrowed 
from the rule above stated as to settlements where the first 

1 Wins. Real Prop. 42, 43; Id. 47, 43 ; Tu.l. Cns. «514 ; 1 Atk. Coiiv. 240- 
250 ; 2 Sug.l. Ven.l. 282-290. 

2 Wuis. Heal. Prop. 45. See vol. 2, Appendix, p. •702. 



116 LAW OF REAL PROPERTY. [BOOK I. 

[*83] tenant in tail, after an * estate for life, as soon as he 
arrives at twenty-one years, could convey the entailed 
estate.^ 

58. From the very definition of estates tail special, as above 
given, it must be obvious that cases may occur where it may, 
even while the tenant is still alive, have become impossible for 
any one to take as issue in tail. The estate may be limited to 
the heirs of his body of his wife Mary begotten, and she may 
have died without issue. As no other heirs can take, he be- 
comes what is known as " tenant in tail, after possibility of 
issue extinct." It can apply only in cases of special tail ; for 
if heirs of his body general might take, the law would not 
(ieem the possibility of issue extinct so long as he lives.^ 

59. Such an estate is one of a peculiar character. It has 
ceased to be one of inheritance, and yet retains many of the 
qualities of an inheritable estate. The tenant is not punish- 
able for waste, like a tenant for life, and yet may be restrained 
by chancery from malicious waste, although a proper tenant 
in tail could not be. He cannot any longer bar the entail, 
and if the remainder or reversion in fee were to descend upon 
him, it would merge his estate as tenant, as it would if he 
were a mere tenant for life.^ 

60. Estates tail were introduced into the English colonies 
with other elements of the common law, and in some of the 
colonies the mode of barring them by common recovery ob- 
tained before the Revolution.^ Common recoveries, as a 
mode of barring estates tail in Massachusetts, though formerly 
in use, were abolished in 1792.^ Recoveries were also once 

1 Wms. Real Prop. 46 ; Cadell v. Palmer, 1 Clark & Fin. 372. Also, Tud. 
Cas. 331, 358-361. Post, vol. 2, *358. 

2 3 Prest. Est. 394 ; Wms. Real Prop, 49. 

8 2 Wms. Real Prop. 49 ; 1 Cniise, Dig. 137 ; Co. Lit. 27 b, 28 a ; Burton, 
Real Prop. § 747 ; 2 Sharsw. Bl. Com. 125, n. 

* Walker, Am. Law, 299 ; 4 Kent Com. 14; Lyle v. Richards, 9 S. & R. 330; 
Jackson v. Van Zandt, 12 Johns. 169. Story, 1 Const. 165, says that Virginia 
adopted entails, but did not fines and recoveries. Ami see Hawley v. Northamp- 
ton, 8 Mass. 34 ; Partridge v. Dorsey, 3 Har. & J. 302 ; Den v. Smith, 5 Halst. 
39 ; Sullivan, Tit. 77 ; 4 Dane, Abr. 624 , 2 Sharsw. Bl. Com. 119, n. ; Baker v. 
ilattocks, Quiucy R. 73. Pu'coveries were in use in New Jersey till abolished by 
statute in 1799. Croxall v. Shererd, 5 Wall. 283. 

5 4 Dane, Abr. 82 ; Periy v. Kline, 12 Cush. 118, 126. 



CU. IV.] ESTATKS TAIL. 117 

in use in Now TIanipsliiro in l)!irriii^ ostatrs tail. Bell, J., ui 
a recent case, lit-ld that (ho .statute of 1TH1> repealed the Htat- 
ntc De Donia and abidi.shed estates tail. And this was subse- 
(luently reanirmed by the same conrt.* * 

01. Hut now the.se estates arc cither chanj^ed into 
fees * simple or reversionary (^states in fee-simple, and [*^ 1] 
do not exist at all a.s estates tail, or may be eonvcrted 
into estates in fee-sini])l<' by familiar forms of conveyance, in 
the several States, l»y force of their respective statutes.- 

• Ndte. — No nllusiou socnis to Ik- inudo directly to •■.sUitt-H tail; or tiiu's ninl 
recoveries iu the SUU. 1789. lu 1791 an act wiis jias-seJ limiting the time within 
which " writa o{ J'onncdun in (IckchcUt, remaiiuUr, aiul reverter," may be brought. 
An action oi /ormedon lu descfiuUr was XtuhI in the same court, in 1867, without 
objection. Ami in 18.37 an act was \mssod authorizing any person 8eise<l of 
lanils in fee tail, and having jiower to convey by tine and recover}-, to convey the 
lauds by ibrd, and thereby l<ar all remainders, reversions, kc, 2 l^iws, 310 ; 
Dennett v. Dennett, 40 N. H. Hep. 498, 503 ; Frost p. Cloutman, 7 X. H. 9. 

> Jewell V. Warner, 35 N. H. 176 ; Dennett v. Dennett, 40 N. H. .'iOO. 

' Nightingales. Burndl, 15 Pick. 116. Alabama, fees-tail are converted into 
fees-simple in the hands of the one to whom the conditional estate is given, (ode, 
1867, § 1570. — Arkmiaas, the tenant in tail is made tenant for life, with remainder 
in fee-simple to the jwrson to whom at common law the estate would first de- 
scend. Rev. Stat. 1838, c. 31, § 5. — Cnli/omin, the constitution prohiliits i»er- 
potuities. Art. 11, § 16. — Colorndo, fees-tail give a life estate to the first taker 
and a n-mainder in fee to his chiblren. Gen. L. 1877, c. 18, § 6. — Connecticut, 
the issue of the first donee in tail takes an absolute fee-simple. Oen. Stat. 1875, 
p. 352. — /khiwarc, estates tiil may W barred by fine an<l common recovery, or 
by deed. So tenants iu tail may alien their lamls in fee-simple by die«l in the 
same way as if the estate were owned in fee-simple, if the same is acknowle<lgi<l 
and duly proved. Laws, ed. 1874, p. 507. — Florida, entails arc prohibiteil. 
Thompson, Dig. 2d Divis. Tit. 2, c. 1, § 4. — Georgia, estates tail are alwlished. 
A grant to one and the heirs of his Iwdy cn*ates an absolute fee. Cotle, 1873, 
p. 391. — IlfinoLi, an estate tail is an estate for life in the tenant in tail, with a 
remainder in fee-sim[ilo to the one to whom, on the <leath of tlie first gnintee, it 
wouhl jMiss according to the course of the common law. Hev. St. 1874, p. 273. 
— Indiana, estates tail are alK)lished, ami if no valid remainder is limited upon 
what in fonn is an estate tail, the tenant hn.« .i fei-simple. Stat. vol. 1, p. 266. — 
Iowa, all limitations void which susjiond the a)is<ilute jwwer of alienation longiT 
than lives in Wing and twenty-one years. Ctxle, 1873, p. 355. — Knnaaa, "heirs" 
is not rc<iuin'«l as a wonl of limitation, and lands d<>.scend to children in enual 
shares. Ocn. St. 1868, jip. 135, 394. — Kentuckti, estates which would othonnsc 
be deemed estates toil are hehl to be fees-simple. Gen. St. 1878, p. 585. — '^ ■ ■ , 
tenant in tail may convey in fee-simple. Rev. Stat. 1871, p. 5.59. — .1/ 
same as Maine, and estates in fee tail general will descend to heirs like e;-!.! ■ - u, 
fee-simple. Chelton t>. Henderson, 9 Gill, 438 ; Posey p. Budd, 21 Md- 477, 487. 



118 LAW OF REAL PROPERTY. [BOOK L 

[*85] The reader will find what is * believed to be the sub- 
stance of the existing laws of the several States on the 
subject in the accompan3-ing note. The doctrine of entail- 
ment of estates in families was never consonant to the genius 
of the people of this country, and even in the few States 

Code, 1860, pp. 136, 330. — Michigan, estates tail are abolished, and such as 
would be at common law are declared fees-simple. Comp. L. vol. 2, § 2587. — 
Minnesota, persons holding what would be an estate tail are to be " adjudged 
seised thereof as an allodium." Rev. St. 1866. — Mississijypi, estates tail are pro- 
hibited and declared to be estates in fee-simple except that lands may be limited 
to a succession of donees then living, not exceeding two, and to the heirs of the 
body of the remainder- man, and in default thereof to the heirs of the donor in 
fee-simple. Code, 1871, § 2286. The statute Z)c Donvs was never in force here. 
Jordan v. Roach, 32 Miss. 482. — Missouri, tenant in tail takes an estate for life, 
remainder to his children in fee as tenants in common. Gen. Stat. 1866, p. 442. 
— Massachusetts, Pub. Stat. c. 120, § 15, tenant in tail may convey an estate in fee- 
simple by deeds in common form. But a tenant in tail in remainder cannot, by 
deed, convey any estate, either by way of grant or estoppel. Whittaker v. Whit- 
taker, 99 Mass, 366 ; Holland v. Cruft, 3 Gray, 183 ; Allen v. Trustees, 102 Mass. 
262, 265.1 Nor can a married woman bar an entail by deed in which her hus- 
band does not join. Whittaker v. Whittaker, sup. 367. But the estate of a 
tenant in tail may be taken on execution, or may be sold by license of court 
after the death of a tenant in tail in possession, but not of a tenant in tail in re- 
mainder. Holland v. Cruft, sujy. ; Allen v. Trustees, sup. Where land is held 
by one as tenant for life, with a vested remainder in tail to another, the tenant for 
life and remainder-man may convey the same in fee-simple by their deed, which 
deed will bar the estate tail and all remainders and reversions expectant upon it. 
Gen. Stat. c. 89, § 5. Under the Mass. statute of 1791, a deed made bona fide, 
for a valuable consideration, executed in the presence of two witnesses, barred en- 
tails. Williams v. Hichbome, 4 Mass. 189 ; CuflFee v. Milk, 10 Met. 366 ; Willey 
V. Haley, 60 Maine, 176. — Nebraska, "heirs" not necessary to create a limita- 
tion of an estate in fee-simple. Gen. Stat. 1873, p. 383. — New Jersey, the first 
taker has an estate for life, and fee-simple vests in the heirs. 4 Kent, Com. 15, n.; 
Nixon, Dig. p. 214. — New York, estates tail abolished, and if no valid remairder 
is limited thereon, the tenant in tail takes a fee absolute. Stat, at Large, vol. 1, 
p. 670. — North Carolina, tenant in fee-t;iil is seised in fee-simple, and for a valu- 
able consideration, may convey it in fee. Gen. Stat. 1873, p. 383. — Ohio, the 
issue of the first donee in tail takes a fee-simple absolute. 1 Rev. Stat. S. & C. 
p. 550. — Pennsylvania, fines and recoveries have the same effect to bar estates 
tail as in England. Tenants in tail may convey lands of which they are seised in 
the same manner as if seised in fee, and thereby bar the entailment, as by a re- 
covery. 1 Bright. Purd. Dig. 1872, p. 619 ; Price v. Taylor, 28 Penn. St. 107 ; 
Haldeman v. Haldeman, 40 Penn. St. 36. — Rhode Island, tenant in tail may bar 
it by fleed or devise, by limiting a fee-simple to his grantee or devisee, the deed 
to be acknowledged before the Supreme Court or Court of Common Pleas. Gen. 
Stat. 1872; Cooper v. Cooper, 6 R. I. 264 — South Carolina, statute De Bonis 
never in force there ; estates in fee-simple conditional remain as at common law. 
1 Cf. Coombs r. Aiiderson, 138 Mass. 376. 



CII. IV.] ESTATES TAIL. 119 

whciT the loriii of ostatL's (ail rciiiaiiis, the apiilioution of it is 
compaiativoly rare. And the facility with which even tlicHC 
may l)0 harrod l>y aliciiiiiLT thcin, reiulcrs the possibility of 
creating thcni of little practical importance, thongh it does 
not do away with the necessity of understanding the rules by 
which such estates arc governed. 

Stat. vol. 3, p. 3-11. — Teniussie, all tenants in tail are sciacA in fcc-simple. — 
Texiui, by Constitution, art. 1, § IS, m-ithtT ])rimogi-niturt! nur entailment can ever 
be in forco. — I'cnnont, the iloiifo in tail takes an t-state for life, remainder in fco- 
simple absolute to him to whom the estate would imiss uihih IiIh death, fieri. St. 
1862, p. 446. — irixoHsin, all estates tail changed into fee-simple in the U-nant 
in tail. 15ev. SUit. 1858, p. 524. — Virginia, estJites tail were aliolished 08 early 
OS 1776. 4 Kent, Com. 5, n. And now estates tail arc converted into estates in 
fee-simple, whidiever fonu is adopted. Cotle, 1860, p. 559. Ami the sjime rule 
prevails in Jf'cst Virginia. Code, 1868, p. 460. — Dukuta, estates liiil alMi]i-,hid. 
Civ. Code, 186«. 



120 LAW OF REAL PROPERTY. [BOOK I. 



CHAPTER V. 

ESTATES FOR LIFE. 

Sect. 1. Their Nature and Incidents. 

Sect. 2. Of Estovers. 

Sect. 3. Of Emblements. 

Sect. 4. Of Waste. 

SECTION I. 

THEIR NATURE AND INCIDENTS. 

1, 2. Estates for life — what and how created. 

3, 4. Estate jser autre vie — less than for tenant's own life. 

5-7. What constitutes an estate for life, and what not. 

8. How far referable to tenant's natural life. 

9. Such estates are freeholds. 

10, 11. When and how far affected by merger. 

12. Estate for tenant's own life changed to one jjer autre vie. 

13-18. How great an estate tenant for life may convey. Effect of ex- 
ceeding this. 

19. Effect of tenant's disclaiming landlord's title. 

20-22. Doctrine of occupancy in case of death of tenant per autre vie. 

23. Of gi-ant and devise by tenant 2Kr autre vie. 

24. Duties incident to estates for life. Defending the title. 
24 a. Tenant cannot claim for improvements. 

25-27. As to paying incumbrances ; apportionment, &c. 

28. As to paying taxes. 

29. His possession that of reversioner. 

30-32. When rent is apportionable, and to whom payable. 
33. As to possession of title-deeds. 

1. The next estate in importance, as computed in the scale 
of gradation, is an estate for life, because ordinarily measured, 
as to its duration, by the term of a human life, and regarded 
as a freehold. This is rather a class of estates, and embraces 
all freeholds which are not of inheritance, including estates 
held by the tenant for the term of his own life, or for the life 
or lives of one or more other persons, or for an 'indefinite 



CIl. V. § 1.] KSTATKS l-OK LITK. 121 

period which may cmhire for tlio life or lisr.-. .ii j.- o-m^. in 
beinjr, and nut hcyond the period of a life.' Nor docH it 
chauLrt' the charaelcr <»f a life estate so loiif? as it remains 
such, that it may, upon the happenintr of a eontin^^eiiey, he- 
come enl:ir'-''ed into a fee. Thus, where a (k'vise was to A 
for Hfe, remainder to testator's widow lor Ufe if she survived 
A, and iin (h-eease of Inttli to the heirs male of the body of A, 
it was held that A surviving the widow, his life estate then 
beeame an estate tail.^ 

2. These estates may be created by the act of some party, 
as by a deed or devise, or by act of the law as in case of 
dower and curtesy, as being incident to relations like that of 
marriairo, which arc created by law. 

3. Where the estate is in one during the life of another, it 
is technically called an estate per autre vie, and he whose life 
is the measure of its duration is styled cestui que vie.^ 

4. An estate for the tenant's own life is, in the estimation 
of the law, a better one and of a higher nature to him than 
one for the life or lives of another or others. And, as in con- 
struing grants wlu.'re the language is equivocal, that construc- 
tion is given which is most favoralde to the grantee,^ where a 
grant is made to one with no other words of limitation, he 
will be entitled to an estate during his own life, if the estate 
of the grantor will allow him to C(jnvey such an estate.^ 

6. Among the instances of what will be deemed a grant of 
an estate for life are those above put of a grant to one ex- 
pressly for life or to him without words of limitation, or to 

» Hcwlins V. Shippiim, 5 B. & C. 221 ; 2 Bl. Com. 121. 

a A.lains r. Atlams, 6 q. B. 860. 

' 2 Bl. Com. 120 ; Co. Lit. 41 b. For what is evidence of the death of n uMui 
que vu, see Clark v. 0\ven.s, 18 N. Y. 434. It is stated in Garland v. Crow, 2 liai- 
ley, 24, that " in contemplation of law an estate for life is c(iual to seven years' 
jiurchase of the fee. To estimate the present value of an estate for life, interest 
must be computed on the value of the whole property for seven years, and jxr- 
haps interest on the several sums of the annual interest, from the jtre.sent time to 
the periods at which they would res|)ectivcly fall due, ou^ht to be abate«l." And 
with the rate of interest at seven jier cent, the present value of an estate for life 
is a fiaction more than thirty-five jx-r cent of the value of the abstdute estatv. 
But these absolute assumptions have now generally given way to computations 
based on average probabilities of life. See post, 309. 

♦ Broom. Max. 457 ; 2 Bl. Com. 121. 

» Co. Lit. 42 a ; Broom, Max. 458 ; 2 Bl. Com. 121. 



122 LAW OF REAL PROPERTY. [BOOK I. 

him during the life of another, or to a woman so long as she 
shall remain a widow, or to a man and woman during cover- 
ture, or so long as a man shall live in a certain house, 
[*89] or shall pay a *certain sum, or until ^100 be paid out 
of the income of the estate, even though the income of 
the estate be £10 by the year ; ^ or so long as the grantee 
shall maintain salt-works on the land.^ So the reservation 
by a grantor of the use and control of the granted premises 
during his life, creates in him a life estate with all its inci- 
dents.^ The importance of the distinction between freeholds 
of inheritance, simple freeholds, and estates less than freehold, 
is obvious when the incidents are considered which belong to 
the one or the other of these. 

6. Among the exceptions to the above is a devise of lands 
to executors until testator's debts are paid, which will pass a 
chattel and not a freehold interest. So if the grantor himself 
have only an estate for life, or is tenant in tail, the grant, if 
indefinite, shall be held to be for the life only of the grantor. 
And in the construction of wills, as well as of deeds by statute 
in several of the States, as heretofore stated,* it is often held 
that the devisor or grantor passes whatever estate he has, 
whether a fee-simple or less, as the case may be, though he 
do not make use of words of limitation and inheritance in his 
will or deed.^ It matters not how contingent or uncertain 
the duration of the estate may be, or how probable is its de- 
termination in a limited number of years, if it is capable of 
enduring for the term of a life, it is within the category of 
estates for life.^ 

7. In many cases estates for life are held to be raised by 
implication, especially under devises, as where A devises his 
land to his heir after the death of B. Here, as no one but 
the heir could take except by the will, and by that he is 

1 Co. Lit. 42 a ; Tud. Cas. 31 ; Jackson v. Myers, 3 Johns. 388 ; Roseboom v. 
Van Vechten, 5 Denio, 414. And to these may be added the rights of "home- 
stead " in some of the States, which will be hereafter treated. See c. 8, § 2. 

2 Hurd V. Gushing, 7 Tick. 169. 

3 Webster v. Webster, 33 N. H. 18, 22 ; Richardson v. York, 14 Me. 216. 
* Ante, p. *29. 

6 Co. Lit. 42 a. See Stat, of Wills, 1 Vict. c. 66, § 28 ; 2 Jarm. WUls, 181. 
6 2 Flint. Real Prop. 232 ; Co. Lit. 42 a. 



CH. V. § 1.] ESTATES FOR LIFE. 1 J.". 

postjxniftl till the (\o:\\]\ of I), it is lidd that II is, In con- 
structiou, inade tenant for lifr. Hut if it had hern to a 
stranger, after the death of 1>, no sn< h inference would be 
raised, for the estate in the mean time would go to the heir.' 

8. It was eustonuiry in Kngland, while mojuisteries were in 
existence there, to limit estates for life to ]>erson8 durinir their 
natural lives, lest their civil deaths might terminate the estate. 
But there is no occasion in this country io make use of this 
expression, as there is no civil death nor practical for- 
feiture of * lands, it is lidieved, for felony, ami to a ['00] 
very limited extent for treason.- 

9. It has been more than once stated that estates for life 
were considered under the feudal law fieeholds, were created 
by livery of seisin, and for them the tenants owed fealty to 
the lord, hut not homage, as that was due only from the one 
who had the inheritance. And it may be added that, accord- 
ing to strict feudal notions, a tenancy per autre vie was not 
deemed of suflicient importance to be considered a freehold 
interest.^ 

10. In measuring the duration of a life estate where the 
life of more than one person is referred to, the (|uesti(jn is 
sometimes affected l)y the doctrine of merger, which applies 
where a greater and less estate unite in the same person, — 
the less being extinguished.* Thus an estate to A during 
life and the lives of B and C, is considered cumulative, and 
will continue during the lives of all three.^' Hut if it had 
been to A during the life of H, remainder to A, the estate to 
himself would i)e considered a greater estate than that during 
the life of the cestui que vie, and would therefore merge this 
80 that A would simjily have an estate for his own life in 
him.sclf.'^ And in conformity with the doetrine of merL'-er, if 

» 1 Jarm. "Wills, 406, 476. 

2 Wilis. Hi-al Prop., Iljiwle's note, p. 103 ; 5 Dnne, Abr. 11. This is not in- 
teiuUtl to aj)ply to cases of alleged forfeiture by the tenant for life, convej-ing 
the lands in fee, and the like. 

» 2 Bl. Com. 120 ; 1 Si)ence, Eq. Jur. 144 ; Wni.s. Real Prop. 17, 22. Jlr. 
Williams is of the opinion that feuds were not originally, as some liave supiMsed, 
held at the will of the lord. 

* 2 Bl. Com. 177. » Co. Lit. 41 b ; .3 Pr.st. r..„v. CiS. 

• 3 Prest. Conv. 225 ; Smith, Real & Pers. Prop. 939. 



124 LAW OF REAL PROPERTY, [BOOK I. 

the owner of a reversion immediately expectant upon an estate 
for life, grant his reversion to the tenant for life, it will merge 
the estate for life, even though the grant be a conditional 
one.^ And this, whether the reversion he in fee, in tail, or 
for life only.^ 

11. But if the tenant surrender to the reversioner, and this 
be on condition, and then an entry be made for condition 
broken, the tenant for life is in again of his original estate, 
and the estate for life survives. The effect of such an opera- 
tion is not a complete merger, since a surrender is but 

[*91] " the consent of a * particular tenant that he in remain- 
der or reversion shall presently have possession."^ If 
the tenant for life lease the premises to the reversioner for 
his, the reversioner's life, his estate does not merge in the re- 
version, because he parts with a less estate than he is sup- 
posed to have ; and if he outlives the reversioner, he will take 
the estate again for the balance of his own life.* 

12. Though there are some peculiarities in the nature of 
estates ^:)er autre vie, which will be hereafter explained, it 
may be here remarked, that if a tenant for his own life, as, 
for instance, a dowress, conveys that estate to another, the 
latter becomes thereby a tenant for life per autre vie.^ 

13. A tenant for life is regarded as so far the owner of an 
independent estate, that, unless restrained by the terms of his 
grant, he may convey his entire interest, or carve any lesser 
estate out of the same in favor of another. In other words, 
he may assign his entire estate or underlet the whole or any 
part of the same for a longer or shorter period, not exceeding 
that of his own.^ He cannot, however, convey his estate 
except by deed.'^ 

14. The conveyance by a tenant for life of a greater estate 
than he has in the premises — a fee, for instance — has been 
allowed to have a different effect at different times in England 
and in this country. While conveyances by feoffment were 

1 Burton, Real Prop. § 764 ; Co. Lit. 218 b. 2 Smith, Real Prop. 939. 

8 Burton, Real Prop. § 764 ; Smith, Real & Pers. Prop. 939 ; Termes de la Ley 
"Surrender." 

* Co. Lit. 42. 6 Co. Lit. 41 b. 

8 1 Cruise, Dig. 108 ; Jackson v. Van Hoesen, 4 Cow. 325. 
" Stewart v. Clark, 13 Met. 79. 



Cll. V. § l.J ESTATES Foil LIFF-:. 125 

in usi', siifh II CDUVi'N aiici" was drcinnl tu woik a forfriturc 
of the tenant's untire estate, upon the feudal notion that hy 
making: it he hail renounoed the feudal eonneetion between 
him and his huil, and the estate in renjainder or reversion 
had thereby been divested by the wrongful transfer of the 
seisin to a 8tranj;ei", and the reniainder-ujan or reversioner 
niiirht at once enter for the forfeiture upon his orijrinal ri^dit, 
inasnuieh as the tenant of the particular estate ha<l by his 
own act put an entire i-iul tu his original estate. And 
the same piinci|)le ajiplied in all cases 'where the ten- [**•'-] 
ant of a particular estate cdnveyed a greater one than 
he was entitled to.' I5ut it has never been held a ^rround of 
forfeiture that tenant fnr lit'i- had made a lease of the premises 
for years .2 

15. But if the conveyance be by deed of bargain and sale, 
lease and release, or any form of dee<l under the Statute of 
Uses, w hich is not accomplished by the transmutation of jkjs- 
session, it would not, though in form a fee, convey any more 
than the grantor had to part with, and conseciuently, as it did 
not disturb the seisin of the reversioner or remainder-man, it 
would n(»t work a forfeiture."^ 

It"). And now under the statute of 8 «fe 9 Vict. c. 10(5, sect. 
4, which iK'clares that no feolTment made in wrong shall aet 
tortiously, it would seem that this ground of forfeiture is 
removed in England.' 

17. In this country the law seems to have l)eon generally 
regarded as the same in this resj)ect as in England, in those 
States wliere conveyances have the effect of feoflfments, ac- 
companied by livery of seisin, or may be made by common re- 
coveries, it seems that a tenant for life may work a forfeiture 
of his land l>y conveying a greater estate than he lias.'' 

18, I5ut it is apprehended that this is rather a theoretic 
than a jjractical princijile, since the deeds ordinarily in use in 

> 1 Cruise, Dig. I(i8 ; 2 Bl. ('run. 274, 275 ; 5 Dane, Ahr. 6-8 ; Co. Lit S.'il, 
2j2 ; Wright, Ten. 2(il ; Wins. Keal Prop. 25 ; Jackson v. Mancius, 2 Wt-nJ. 305. 

2 '.ocke V. Kowell, 47 N. H. 46. 

» 1 Cruise, Dig. 109 ; Steams, Ileal Act. 11 ; Stevens r. Winbhin, 1 Pick. 318. 

« Wni.H. Kwil Prop. 122. 

» 2 Sliarsw. 151. Com. 121, n.; H.'.lfern r. Mi-lJleton, 1 Rice, S. C 459 ; Stump 
V. Fiudlay, 2 Kawle, 1(38. See Matthews v. Ward, 10 Gill i J. 44y. 



126 LAW OF EEAL PROPERTY. [bOOK I. 

the conveyance of lands, though recorded, do not operate to 
produce a forfeiture, though the tenant thereby affect to con- 
vey a larger estate than he has. Such deeds convey what the 

grantor has and nothing more.^ 
[*93] *19. Immediately connected with the doctrine of 

forfeiture by granting a larger estate than the tenant 
for life has, is that of forfeiture by disclaiming the title of 
him under whom he holds, or affirming in a court of record 
that the reversion is in a stranger, by pleading, and the like. 
Although such was the common law, it has not, it is believed, 
ever obtained in this country .^ 

20. The estate for life j^er autre vie, presented, at the com- 
mon law, several noticeable peculiarities in certain contin- 
gencies. Thus, if the tenant died, living the cestui que vie, 
land was left open without any one having a legal right to 
claim it, — neither the reversioner, because the previous es- 
tate had not expired ; nor the heir of the tenant, for his estate 
was not one of inheritance ; nor his executor, because it was a 
freehold and not a chattel interest. Nor was it deemed to be 
devisable. The consequence was, any one who first chose to 
take possession might do so, and was called a general occupant.^ 

1 McKee v. Pfout, 3 Dall. 486 ; Pendleton v. Vandevier, 1 Wash. 381 ; Ptogers 
V. Moore, 11 Conn. 553 ; Bell v. Twilight, 22 N. H. 500 ; Stevens v. Winship, 1 
Pick. 318 ; Walker, Am. Law, 277 ; Steams, Keal Act. 11 ; 4 Kent, Com. 84. 
In Maine it is held that if tenant by curtesy conveys in fee, he forfeits his estate, 
and reversioner may enter, French v. Rollins, 21 Me. 372 ; and in Xew Jersey, 
a similar principle prevails both as to tenants by curtesy and in dower, 4 Kent, 
Com. 84. See also 5 Dane's Abr. 11-13, where a case is cited that a conveyance 
in fee in Massachusetts in 1784 worked a forfeiture. Also a dictum of Judge 
Jackson, in Grant v. Chase, 17 Mass. 446, to same effect. But it is probably 
true, that unless the case of dower or curtesy forms an exception, a tenant for 
life does not in any case work any forfeiture by conveying, in form, a greater 
estate than he has, since only what estate he has passes by such deed. This is 
declared to be the law by statute in many of the States, namely : Alaha'nw,, Code, 
1852, § 1317 ; Maine, Rev. Stat. 1871, p. 559 ; New York, 1 Stat, at Large, 689; 
Wisconsin, Rev. Stat. 1858, c. 86, § 4 ; Massaxhusetts, Pub. Stat. c. 126, § 9 ; 
Minnesota, Stat. 1866, p. 328 ; Michigan, Comp. Stat. 1857, c. 88, § 4 ; Grout v. 
Townshend, 2 Hill, 554 ; McCorry v. King's Heirs, 3 Humph. 267, 271, 277 ; 
Dennett v. Dennett, 40 N. H. 498, 505 ; Hotel Co. v. Marsh, 63 N. H. 230. 

2 Co. Lit. 251, 252 ; 1 Cruise, Dig. 109 ; 5 Dane, Abr. 11. How far this ap- 
plies in cases of terms for years, it is not necessary here to discuss. See Jack- 
son V. Vincent, 4 Wend. 633. 

8 2 BI. Com. 258 ; Co. Lit. 41 b ; Wms. Ex'rs, 570. 



en. V. § 1.] ESTATES FOR LIFE. 127 

But the doctrine of general occupancy was jiractically aliol- 
ishc-d by the statute 20 Charles II. c. 8, and It (i.-... 11. o. 10, 
authori/.inir tlie tenant to devise it, or, if undevised, giving it 
to his executors to be administered as his assets. ^ 

21. But there were many ca.ses at the common l;i\v where 
j)ersons became what were called special occupantn of lands, 
under the circumstances supposed, growing out of the relation 
of such occupant to the estate, and took the land to the exclu- 
sion of a mere stranger. As, for instance, if tenant 

per autre vie *made a lease at will to another and dicil, [•'•'4] 
his lessee, being in pos.session, became the occupant of 
the land.2 But the application of the term as well as the 
title of " s[)ecial occujiant " of such an estate chiefly ari.ses 
out of the form in which the original limitation of the estate 
was made. Thus if A takes an estate to himself, his heirs or 
the heirs of his Ixidy and his assigns during the life nf another, 
and dies in the lifetime of cestui que vie, his heirs would take 
not strictly as heirs, but as special occupants or persons who 
are indicated to take what is left of the ancestor's estate. If 
the limitation had been to him and his executors and adminis- 
trators, they would take, in like case, instead of his heirs.^ 

22. But though " heirs," or " heirs of the body," in such a 
limitation are not properly words of inheritance, and it might 
at first sight appear that they would take as purchasers, if 
at all, yet it is well settled that the ancestor becomes the 
absolute owner of the entire term which he may alien at his 
pleasure, and the heir only takes what he may have left un- 
disposed of. Thus where the estate was to A and his heirs for 
the lives of B, C, and D, and A devised to J S without terms 
of limitation, and J S died l^efore cestuis que vie, it was held 
that the heirs of A should take the residue of the estate, and 
not the representatives of J S.* And the quasi tenant in tail 
in possession has complete power to i)ar the entail and the 
remainder over.^ 

» 2 Bl. Com. 259 ; Tui Cas. 83. 

« Co. Lit. 41 b, n. 237 ; Com. Di«. "Estate by Grant," F. 1. 
» 2 BL Com. 359 ; Atkinson v. Baker, 4 T. R. 229 ; Wma. Ex'rs, 570 ; Tu(L 
Cas. 33. 

« Doe r. Robinson, 8 B. & C. 296 ; All.n r. Allen. 2 Dm. & W. 307. 

' Doe V. Luxton, 6 T. R. 289 ; Allen v. Allen, 2 Dru. i W. 307 ; Norton ft 



128 LAW OF REAL PROPERTY. [BOOK I. 

[*95] *23. But though the tenant for life joer autre vie, with 
a quad estate tail to the heirs of his body may convey 
the estate by deed, it seems that, at common law, he cannot 
do it by will. The heirs of his body will take as special occu- 
pants, by virtue of the gift that created the life estate, in 
preference to the devisee of the tenant.^ 

24. There are duties as well as rights incident to every estate 
for life which the tenant thereof is bound to observe, among 
which was that of defending the title if it was attacked in any 
of the real actions at common law which concluded the title, 
because the interest of the reversioner or remainder-man 
might be affected by the judgment rendered against the life 
tenant. But in order to enable him to do this, he might call 
upon the one who had the inheritance after the determination 
of his estate, to come in and aid him in making the defence. 
This was called " praying in aid." Or he might, if he saw 
fit, go on and defend without resorting to the owner of the 
inheritance, or those whose estates were dependent on his, he 
being in law the proper tenant to the prcecipe? The custom of 

Frecker, 1 Atk. 524. The subject is uow regulated by statute, 1 Vict. c. 26, § 3, in 
England, 2 Wms. Ex'rs, 574, and generally by the statutes of the several States. 
"Walker's Am. Law. 275 ; Wms. Real Prop. 21, note by Piawle ; 4 Kent, Com. 
27. In cases where there is an estate in A for the life of B, A has a freehold. 
But if he die before B, the residuum of the estate is declared to be a chattel in- 
terest, and treated as such in Alabama, Code, 1852, § 1594 ; New York, 1 Stat, 
at Large, p. 671 ; Wisconsin, Rev, Stat. 1858, c. 83, § 6 ; Minnesota, Stat. 1866, 
p. 349 ; Michigan, Comp. Law, 1857, c. 85. In Arkansas it is embraced and 
treated as real estate, in the law of descents and distribution, though all real 
estate is assets in the hands of executors and administrators,. Dig. Stat. 1858, 
c. 56, § 19. In North Carolina it is deemed an inheritance of the deceased tenant 
per autre via for purposes of descent. Gen. Stat. 1873, p. 363 ; McBride v. Pat- 
terson, 78 N. C. 412. In Rhode Island and Indiana it is made devisable, Rev. 
Stat. 1857, c. 154, § 1 ; 2 Rev. Stat. 1852, p. 208, § 2. In Massachusetts it is 
devisable and descendible as real estate, Pub. Stat. c. 125, § 1. In New Jersey 
it is devisable ; but if not devised, it goes to executors or administrators, to be 
applied and distributed as personal, Nixon, Dig. 1855, p. 873, § 1. And the 
same in Texas, Oldham & White, Dig. 1859, p. 454, art. 2117. In Maryland it 
forms a part of personal assets, unless expressly limited to him and his heirs, 
Code, 1860, art. 93, § 220. 

1 Dillon V. Dillon, 1 Ball & B. 95 ; Grey v. Mannock, 2 Eden, 341, and note 
as to Lord Kenyon's dictum in Doe v. Luxton, 6 T. R. 289 ; Campbell v. Sandys, 
1 Sch. & Lef. 281 ; Tud. Cas. 34 ; Allen v. Allen, 2 Dru. & W. 307. 

2 1 Brest. Est. 207, 208 ; Stearns, Real Act. 99 ; Termes de la Le}', " Aid ; " 
ante, *48. 



en. V. § 1.] KSTATES Foil LIIR. 1 -JM 

" pnivini; ill aid" hy a tenant in a n-al action once oxiHtod in 
Massaclinsetts, l)ul hy the abolition of writs of right it Iiuh lifcn 
discoiitiiuu'il.' And the same ciTcct, it wonUl Kccin, has been 
produced in EiiLrhmd by aboHshint^ all real actions, except 
quare impedit, dower and ejectment, by the statute 3 <i: 4 Win. 
IV. c. 27, § 30.2 

24 a. As a general proposition, if a tenant for life makes 
improvements ni)on the premises, he caniujt claim compensa- 
tion therefor from the leversioiu-r or remainder-man, though 
he is under no legal obligation to do more than keep the 
premises in repair.-'^ It is also generally true that he cannot 
make repairs or permanent improvements at the expense of 
the inheritance. But he may com|)lete, at the expense of the 
estate, a mansion-house which has been begun by a testator 
under whom he holds. So the expense of putting a building, 
at first, into a tenantalde ccmdition, is a charge upon the estate, 
but that of kee|)iug it in repair is upon the tenant for life.^ 

25. An important duty imposed upon every tenant for 
life is * that of keeping down the interest upon existing [*96] 
incuml)rance8 upon the estate, though, as a general 
jiroposition, he is not bound, as between himself and the 
reversioner or remainder-man, to pay the i»rincipal of any 
moneys charged upon it ; and if he is oljlig -J to do so, he 
becomes a creditor of the estate for the amount so paid, de- 
ducting the value of the interest he would have had to pay 
as tenant for life during his lifc.^ On the other hand, if a 
tenant for life purchase in an outstanding incumbrance upon 
an estate, it is regarded as having been done for the benefit 
of the reversioner as well as himself, if the latter will con- 
tribute his proportion of the sum paid therefor.^ 

1 Stearns, Real Act. 103 ; Mass. Pub. Stat. c. 173, § 1. 

2 Wins. Real Prop. 371 ; 1 Spencc, Ei\. Jur. 225. 
8 Corbett v. Laurens, 5 Rich. Eq. 301. 

4 Sohier v. Eldridge, 103 Mass. 345, 351 ; Parsons v. Winslow, 16 Mass. 361. 

6 1 Story, Eq. § 4S6 ; Id. § 488 ; Warley v. Wurley, 1 Bailey, Eq. 397 ; 4 Kent, 
Com. 76 ; Saville v. Saville, 2 Atk. 463 ; Mosely r. Marshall, 27 Bfirb. 42, 44. 
And, it seems, ho will not be obliged to pay towards the interest anything ' 
the amount of the rents accniiug, antl, if he does, he will be a cn-ditor of • 
tate for such excess. Kensington v. Bouverie, 7 De G. M. k. G. 134 ; TuJ. Cj^. 
60 ; Doane r. Doane, 46 Vt. 485. 

« Daviess v. Jlyers, 13 B. Men. 511. 
VOL. I.— 9 



130 LAW OF REAL PROPERTY. [BOOK L 

25 a. As between tenant for life and the remainder-man, 
ordinary taxes are to be paid by the tenant for life ; but where 
the whole estate is subject to, or to be benefited by the dis- 
charge of an incumbrance not created by either of them, 
equity apportions it between both, the tenant for life having to 
keep down the interest during his life. A betterment charge 
comes within this category, being laid in view of the perma- 
nently increased value of the premises. The tenant for life 
must pay the accruing interest upon the amount during his 
life, and the remainder-man, after that, must pay the princi- 
pal.^ But though the tenant for life would be liable to the 
remainder-man for contribution at the rates above stated, if 
he pays the charge in full, he is not personally liable to the 
incumbrancer himself who holds the charge upon the estate. 
Thus a mortgagee could not make a personal claim upon the 
tenant for life of the mortgaged estate if the charge was not 
created by him.^ 

26. Formerly, the mode of apportioning the payment of an 
incumbrance between tenant for life and remainder-man was 
one third upon the former and two thirds upon the latter. But 
that is now discarded as unreasonable.^ In North Carolina, 
it is said, the courts do not recognize any arbitrary rule in ap- 
portioning such a payment, each case being generally referred 
to the master to settle by itself.* 

27. The rule stated by Story is this : " The tenant shall con- 
tribute beyond the interest in proportion to the benefit he 
derives from the liquidation of the debt, and the consequent 
cessation of annual payments of interest during his life 
(which, of course, will depend upon his age and the computa- 
tion of the value of his life)."^ To make a practical illustra- 
tion of this rule, which is only vague from an almost necessary 
want of definiteness in the application of the terms employed, 
suppose a tenant for life, a dowress, for instance, has been 
obliged, in order to save her estate, to pay the whole of a 
mortgage thereon, and the heir or reversioner wishes to re- 

1 Plympton v. Boston Dispensary, 106 Mass. 544. 

2 Morley v. Saunders, L. R. 8 Eq. 594. » 1 Story, Eq. § 487. 
* Jones V. Sherrard, 2 Dev. & B. Ch. 179 ; Atkins v. Kron, 8 Ired. Eq. 1. 
6 Eq. Jur. § 487. 



.11. V. § 1.] ESTATI'S roil LIFE. 1 .'U 

(loom from licr l»y CDntiihiitiuLT liis hIiuto of tho iiiortL'iij.'o dt-lit. 
Or supposo ho has j»ai<l tho wholo, mid sho. in <»nl<'r to save 
her estate, wishes to contrilmto hor share of tlie debt. Assiim- 
int; tliat she is to [lay tho intorost as h)npr as sho lives, except 
that sho is to anticipate and j)ay it all at onoo in a jrross 
sum, hor share would ho what the |trrs('nt worth nf an 
annuity oijual to that * intorost would amount to, oom- [*'.*T] 
j)utod lor as many years as l>y the tallies of the (dianccs 
of life, regard being had to hor statt; of health, sho may bo 
sujiposod to live. Of course the share of tho heir or rever- 
sioner would be the residue of the sum paid for the redomf>- 
tioii. And if, by reason of tho mortgage being upon the whole 
of her husband's estate, she, as dowress, would only be liable 
to contril)ute the interest of one third of the debt to correspond 
with her life interest in that proportion of the land, it can 
make no difference in the rule, but merely affects the form of 
the computation.^ The same rule is applied upon the sale of 
an estate in which a tenant for life and a reversioner are 
interostod, in aitjtortioning the jirocecds between thmi. S(j 
whore a mortgage was devised to one for life, with remainder 
to another, and the same was redeemed, the redemittion money 
was divided pro rata liy the same rule. The value of tho 
life estate, in such cases, is fixed at the time of sale or con- 
version of the estate into money, by reference to the com- 
mon tables of the chances of life. Nor would the result 
be affected, though the tenant for life were to die after such 
conversion before any part of the proceeds had been paid 
over.2 

28. In New York, where a tenant for life neglected to pay 

1 Swaine v. Ferine, 5 Johns. Ch. 482 ; Gibson i'. Crchore, 5 Pick. 146 ; Saville 
r. Snville, 2 Atk. 463 ; Bell v. The Mayor, 10 Paige, 49, 71 ; House v. House, 
10 Paige, 158 ; Cogswell v. Cogswell, 2 Edw. Ch. 231. This computation would 
be made by a master or officer of the court. In Massachusetts, the courts have 
made use of Wigglesworth's Tables, Eastabrook r. Hapgood, 10 Mass. 315, n. ; 
though tables have l)een adopted in general use more full and accurate than these, 
such as tho Carlisle or Combined Experience Tables. Si^ the table pn-scrilxnl 
by English statute. Matthews' Ex'rs, 218, Appendix B. In New York also, by 
Laws 1870, c. 717, §§ 1, 5, the Portsmouth or Northampton Tables an- prcscril>ed. 
See also Abercrombie v. Riddle, 3 Md. Ch. Dec. 320 : Dorsey r. Smith, 7 Har. 
& J. 366 ; Fost-r v. Hilliard, 1 Story, 77, nuil post, •248 and note. 

^ Foster v. Hilliard, ) Stoiy, 77. 



132 LAW OP REAL PROPERTY. [bOOK I. 

the taxes upon the land, a receiver was appointed to take so 
much of the rent as might be necessary to pay the taxes.^ 
And it may be laid down as a duty uniformly incumbent upon 
a tenant for life, to pay all taxes assessed upon the land during 
his life.2 In Ohio, if tenant for life fail to pay the taxes as- 
sessed upon the estate, he forfeits the same to the reversioner 
or remainder-man who may enter. But this is under the pro- 
visions of a statute of that State.^ 

29. The possession of a tenant for life is never deemed to 
be adverse to his reversioner.^ Nor, if he be disseised, are 
the rights of the reversioner thereby affected, and he may 
enter or sue an action to recover possession within twenty 
years after the death of the tenant for life, without regard to 
the lapse of time during which the disseisor may have held 
the premises.^ And if one who enters upon land under an 
agreement with a tenant for life continue to hold possession 
after his death, he becomes as to the reversioner a mere tres- 
passer.^ It has been further held that if the tenant for life 
do any act with the property which works a forfeiture of the 
same, it only affects his interest, but not that of the rever- 
sioner.' So if the tenant does an act by which he incurs a 
forfeiture of the estate, the reversioner is not bound to treat 
the estate as merged in his own, and enter immediately ; he 
may have his action after the death of the tenant for life, 
without being affected by the previous possession. Nor can a 
tenant for life who creates an estate by grant or otherwise 
defeat his grant by surrender to his landlord or reversioner.^ 

30. It is a principle in the law of landlord and tenant, that 
if the tenant is evicted before the expiration of his lease by a 
better title than that of his lessor, he will not be liable for rent 

1 Cairns v. Chabert, 3 Edw. Ch. 312. 

2 Varney v. Stevens, 22 Me. 331, 334 ; Prettyman v. Walston, 34 111. 192. 
8 ]iIcMillan v. Robbins, 5 Ohio, 28. 

* Grout V. Townshend, 2 Hill, 554 ; Austin v. Stevens, 24 Me. 520, 526 ; Var- 
ney v. Stevens, 22 Me. 331. 

^ Jackson v. Mancius, 2 Wend. 357 ; McCorry v. King's Heirs, 3 Humph. 267, 
375 ; Jackson v. Schoonmaker, 4 Johns. 390 ; Foster v. Marshall, 22 N. H. 491 ; 
Guion V. Anderson, 8 Humph. 298, 325. 

6 Williams v. Caston, 1 Strobh. 130. 

' Archer v. Jones, 26 Miss. 583, 589. 

8 Moore v. Luce, 29 Puna. St. 260. 



rn. V. § 1.] F.STATF.S nut UVK. 1?A 

lor llie uiu'Xi)iri'il ItTiii dui-inir whirli lio had oiijoycti it ; und 
one p:n»iind is, that, the contract liciii;; entire, such rent is nut 
apportionahle. So if a tenant for life underlet the premises 
for a certain term, reserving; rent payal)le at a certain day, ami 
die hefore that day, his executors coulil not, at commoit law, 
recover the rent accrninjr between the last rent-day and the 
day of his death ; which they mi^ht have done had he survived 
to the he^'inninir of the day on which the rent fell due.' In 
Alal)ama, if a life estate falls in liefore the end of the year, the 
remainder-man has the rent accruing from the death of the 
tenant for life to the end <jf the year, subject to the right ui 
emldements.''^ 

*31. Where, however, as was sometimes the case, a [*98] 
tenant for life had a power to lease for a term beyond 
the period of his own life, and made such a lease, and died 
before the last moment of the day on which the rent was due, 
though within an hour oi midnight, the rent went to the rever- 
sioner, and was not app()rtionaldc,and no part was recoverable 
by the representatives of the tenant for life. For as the lease 
continued after the life-tenant's death, the rent did not become 
fully «lue till the last moment of the day on which it was 
reserved. "^ 

32. But now these defects as to apportioning rents are sup- 
})lied by the statute 11 Ceo. II. c. 10, § 15, giving in the first 
case, a right of action to the executors of tenants for life to 
recover pro tanto for the time the tenant actually enjnyi'd 
the premises under his lease; and in the latter case, liy the 
statute 4 k 5 Wm. IV. c. 22, § 2, apportioning the rent be- 
tween the tenant for life and the reversioner pro rata as to 
time.* The statute of 11 CJeo. II. has been re-enacted in some 

1 dun's Case, 10 Rep. 12S ; Fitclibiirg Co. v. Melvin, 15 Mn-ss. 268 ; rcrrj- r. 
Aldrioh, 13 N. H. 343 ; 2 Bl. Com. 124 ; 3 Cruise. Dig. 233, 30(5. 

2 Pri.e V. Pickett, 21 .Via. 741. 

« Stmirord v. Wentworth, 1 P. Wins. ISO ; Ro<kinghnm v. Penrice. M. 178 ; 
Norris V. Harrison, 2 .Mailtl. 208 ; Wnis. Ex'rs, 709. Royalfii-s from a coal Ica-w 
go to tenant for life. W.iitz's Apji., 100 IVnn. St. .101 ; MeClinuHk v. Dana, 
Id. 3<*6 ; Shwinaker's .\|.p.. Id. 392. 

* Wni.s. Kx'rs, 709 ; Wms. Rial Prop. 27. Tlies*' statuten apiHirtion tlie r.-n* 
a.s to time. The effect of tenant l>eing deprivtHl of jMirt of tlie j«niiiiH. i, or «( 
lessor conveying the revrrsion of |>art of the estate upon the rent, remains as at 
common law, 3 Kent, Com. 409, 470. 



134 LAW OF REAL PROPERTY. [BOOK I. 

of the States, and practically adopted through the courts in 
others.^ If the lessee be tenant per autre vie, and the term 
come to an end by the death of the cestui que vie before the day 
of payment of rent, it is not within the language of the statute 
of 11 Geo. II., and the rent is not apportionable, and cannot be 
recovered for the time the tenant may have occupied between 
the last time of payment and the death of the cestui que vie? 
And a like principle applies in the case of annuities. If an 
annuitant die before the expiration of the period at which the 
annuity is payable, it is lost ; his representatives can recover 
no part of what is in arrear since the prior day of payment. 
Hence the importance of providing for such contingencies by 
the terms by which the lease or annuity is created.^ 

33. A question of some interest has, at times, been made in 
England, how far a tenant for life has a right to possession of 
the title-deeds of the estate. But it is believed that under the 
American system of registration no such question can arise.* 

[*99] * sectio:n' IL 

OF ESTOVERS. 

1. Tenant's right to estovers. 

2. What are estovei-s. 

3, 4. Effect of tenant exceeding his right in taking estovers. 

5-9. How timber, &c., must be cut and used. 

10. What trees constitute timber, and what firewood. 

11. Right to take estovers assignable. 

1. Among the incidents of all estates for life, and the same 
is true of estates for years, is that to take estovers or hotes 
from the premises, if they are capable of supplying them, in 
the way of compensation for the duty of occupying and man- 
aging the same in a prudent manner, and keeping the parts 
thereof in suitable repair.^ 

1 3 Greenl. Cruise, 306, n. Re-enacted in Massachusetts, St. 1869, c. 368, 
§ 1 ; Pub. Stat. c. 121, § 8 ; and extended to all contingent determinations of the 
lessor's estate. 2 pgny v. Aldrich, 13 N. H. 343. 

8 Wiggin V. Swett, 6 Met. 194 ; Dexter v. Phillips, 121 Mass. 178. 

* Wms. Real Prop. 375, Rawle's note. 

6 Hubbard v. Shaw, 13 Allen, 120, 122; Cowel, Interp. (Estovers), derives the 
word from the French, estouvcr, equivalent to fovere, to nourish or maintain. 



CH. V. § 2.] ESTATnS F(Ml LIFE. ]:]', 

2. Those CBtovors arc of three kinds: 1, liousc-Kut. •; li, 
plou«rh-lKite ; niul ;J, hay-hote. The first of these is a siifli- 
cieiit allowunee of wood to repair nr hum in thr liuiisc This 
hitter is often ealh-d lirc-hote. The second, for niai<inj; and 
rej)airin|^ all instruments of hushandrv. The third, for rc- 
pairin<^ hedges or fences ; "hay" nieanin;r'*u liedge.*' And 
these estovers must he reasonahle in (juantity or anioinit.' 
It was held, in applying this doctrine in oiu' case, that sncli 
tenant might take a reasonahle (piantity of wood for fuel, for 
the supply of himself and family, upon the premises, to ho 
cut in a prudent and i)roper manner, and might include a 
reasonal)le supply for necessary servants employed nj>on the 
farm, and living in the same house, or another uimju the same 
premises."-^ 

3. As the destruction of growing timher and wood afTects 
the vahie of the inheritance, if the tenant exceed what is 
reastmably necessary in cutting for the jmrposes ahove stated, 
he would, to the extent of such excess, he guilty of waste, 
the consequences and nature of which will be hereafter ex- 
plaine(l.'5 

4. In the first place, he must only cut such timber or wood 
as he needs for present use. To cut tliese in anticipation of 
future use would he waste.* So he nnist cut only such as is 
fit for the purpose. It would he waste to cut what was unlit, 
though he exchanged it for what was suitable.'' 

5. In the next place, the tenant nnist only cut such 
•timi)er, <tc., as is necessary for use, and it must also [*100] 
be used by him upon the premises, and not elsewhere. 

He may not cut timber and exchange it for firewood or fenc- 
ing-stuff, nor cut wood or timlu-r and si.-ll it, though needed 

"The name estovers contaiiieth house-botc, hay-boU>, and plouffh-boto." "Bote," 
Bays tlif sjime author, "sipuifieth coiiUH-iisntion ; lu'iice also comes our coiniiion 
phnuM-, • to give to boot, that is, coinjtfn»i/i"ni.s gratia.' " Sec also Co. Lit. 41 l>. 
Blackiitoiie di-rivcs estovers from cstojTcr, to/iirni.'Ji. 2 HI. •"om. 35. 
1 Co. Lit. 41 b; 2 BL Com. 35 ; Cowel, luterp. "Have." 

• Smith r. Jewett, 40 N. H. 530. 

» 2 m. Com. 122. .See this sul.j.ot cxnminea, 3 Dane, Abr. 238, 239. I\ul^ 
p. "lO? ; We»»ter v. WeJister, 33 N. H. 21. 

* (Jorges V. StanficM, Cro. El. 5y3. 
' Simuions v. Nortou, 7 Biug. 640. 



136 LAW OF REAL PROPERTY. [EOOK I. 

for his comfort or support.^ Nor can he cut and sell wood to 
pay the expense of cutting and drawing that which he needs, 
and used for his own comfort upon the premises.^ Nor could 
a dowress cut and sell wood from the premises, though she 
procured as much for actual consumption upon the same from 
other sources, and to that extent relieved the estate from the 
charge of supplying fire-wood.^ 

6. Where a widow had dower out of two distinct estates, 
with a dwelling-house on both, but no woodland upon one of 
them, it was held that she could not cut wood upon one of 
these to burn in the house upon the other, though she occu- 
pied the latter as her dwelling-place.* But in other cases 
it has been held that, if dower consist of several parcels, 
and she takes wood from one to make repairs upon another, 
or to burn in her dwelling-house upon another, it will not 
be deemed waste, though these parcels are the inheritances of 
different reversioners.^ So where there was a farm and out- 
lands, and it had been customary for the tenant to cut the wood 
for the dwelling-house upon the out-lands, it was held not to 
be waste in the tenant for life to cut it upon the farm, if such 
cutting did not essentially injure the farm as an inheritance.^ 

7. As an example of the extent to whicli estovers would 
be deemed reasonable, we find that it is held that upon a farm 
of 165 acres the tenant might not take firewood for two 
houses, one the principal one, the other that of the farmer or 

1 White V. Cutler, 17 Pick. 248 ; Padelford v. Padelford, 7 Pick. 152 ; Richard- 
son V. York, 14 Me. 216 ; Elliott ■;;. Smith, 2 N. H. 430 ; Sarles v. Sarles, 3 Sandf. 
Ch. 601 ; Livingston v. Reynolds, 2 Hill, 157 ; Simmons v. Norton, 7 Bing. 
640 ; Webster v. Webster, 33 N. H. 21 ; Miles v. Miles, 32 N. H. 147. In a hard 
case Judge Story adopted somewhat different rules of law, in Loomis v. AVUbur, 
5 Mason, 13. 

2 Johnson v. Johnson, 18 N. H. 597. ^ Phillips v. Allen, 7 Allen, 115. 
* Cook V. Cook, 11 Gray, 123. And such seems to be the law in New Hamp- 
shire. Fuller V. Wason, 7 N. H. 341 ; Miles v. Miles, 32 N. H. 147. 

5 Owen o Hyde, 6 Yerg. 334 ; Dalton v. Dalton, 7 Ired. Eq. 197. And so in 
an early case in Massachusetts. Padelford v. Padelford, 7 Pick. 152. And in New 
Hampshire, by Stat. 1842, c. 165, § 7, and Maine, by Rev, St. 1857, p. 606, § 15, 
a widow is authorized to take necessary fuel from her dower lands to supply her 
own residence, though not upon the dower lands. This difference of view in the 
cases in New England from that held in other States may perhaps be due to the 
doctrine oVjtaiiiing in the former in respect to dower in wild lands. 

« Webster v. Web:.ter, 33 N. H. 26. 



CU. V. § 2.j KSTMIs K)U LIFK. 1 .".7 

laborer who did the work ujioii it, ultlioii<^h it liiid liecu fus- 
tomarv to tlo so.^ 

8. r|)on the princijiles above stated, a tenant luis not a 
rij?ht to dit^ chiy upun a farm and make it into liricks for sale, 
nor to use Wood from the farm for their manufacture.*'' 

1>. In Knjrhmd a striett-r ruh- is aii|»ned in res|K'ct to aUow- 
in«r estovers than that in use in this country, from tlie difl'er- 
ent condition of the two countries in resjiect t«> the economical 
manapiuent of estates. l'rol»aMy the same rule woidd be 
a{»i>lied here as there, that if the tenant sufl'crs liouses to go 
to decay and then cuts timber to rejtair them, it would be 
deemed double waste."' Hut it is doul)tful if the ten- 
ant here would, as there, be * restricted in nil eases [*1'*1] 
from cuttin<^ timber for construct in^r new walls or 
fences, though in both lie may t:ike sullicient to keep such 
fences, Arc, in repair, as were upnn the incmises when lie to<jk 
them* And while he is not bound to rejiair a house already 
ruinous, he may do so with tind)er taken from the premi.ses.'' 

1<>. Hut the (luestions, what is tind>er and what nuiy be 
used for firewood, and wliether the cutting of trees, thougli 
for neither of these uses, would be waste, dei)end ujton the 
usages of this country, the customary mode of numaging 
hinds, and the manner in wliich the inheritance would be af- 
fected by such cutting, rather than ui)on the rules of the Kng- 
lish connnon law, the rule here as to waste being that nothing 
which docs not prejudice the niheritancc or those who arc 
entitled to the remainder or reversion, can be d«'emed waste.** 
Thus to cut oak-trees here for firewood is not, necessarily, 
waste, though it might be in England." 

» Siirli's f. Sarlcs. 3 SnnJf. Ch. GOl. See Smith v. Jcwett, 40 N. H. 530, 53'2; 
Ganlitier v. Deriiig, 1 Taigc, 573. 

3 Livingston v. ItrynoUK 2 Hill, 157. • Co. Lit 63 b. 

« Co. Lit. 53 li ; .Mil.-s r. Mil.-s. 32 N. IL 147, 163. » Co. I,it. 54 1.. 

• Pynchon r. Stenrnn, 11 Mit. 304 ; Morthousc v. Cotheal, 22 X. J. 521. 

' Piulelfonl c. Pmlelforil, 7 Pi<k. 152. Svo nl.so, uiwn the nl)ove {Miintx, 
Jnckson r. Brownson, 7 .Johns. 227 ; Kiihl r. IX-nniMon, 6 lUirh. 9 ; (nx ki-tt r. 
CtxKkett, 2 Ohio St. 180 ; McCuUouKh r. Ininc, 13 Penn. St. 4as ; W 
r. \Vtl«,ter, 33 N. H. 26. And when; timber is blown flnnn. th" lif' V • 
absolutely entitled to smh a.s would hnvv Ix-en rwi*" ••<"\. 

and to interest on the proceeds of the n-siduc, St: ^ r, 52 

Md. 15t. 



138 LAW OF EEAL PROPERTY. [bOOK I. 

11. It may bo remarked that any right of estovers belong- 
ing to a tenant would pass to bis or ber grantee of tbe estate, 
or one who should leyy thereon for debt.^ 



SECTION III. 

OF EMBLEMENTS. 

1. Tenant's right to emblements. 

2-4. What are emblements, and what right of occupancy incident. 

5, 6. Origin of the doctrine of emblements. Exception as to widows. 

7-9. What is essential to claim of emblements. 

10. Tenant at sufferance has no right to emblements. 

11, 12. Right to take emblements assignable, when. 

13, 14. When growing crops not emblements. 

15. Effect of disseisor or his grantee taking crops. 

16-18. What right of occupancy belongs to a right to emblements. 

19, 20. Usage as affecting right to emblements. 

21, 22. Emblements claimed against mortgages or judgments. 

1. Another of the important rights which a tenant for life 
has, as also other tenants of estates of uncertain duration, is 
that of emblements.^ or profits of the crop (^emblavenee de bled), 
which the law giyes to him, or if he is dead, to his executors 
or administrators, to compensate for the labor and expense of 

tilling, manuring, and sowing the land.^ 
[*102] *2. These crops are such as are the growth of 

annual planting and culture, and the right to take 
them after the termination of the tenancy rests partly upon 
the idea of compensation, but chiefly upon the policy of 
encouraging husbandry, by assuring the fruits of his labor to 
the one who cultiyates the soil.^ The term emblements is 
applied also at common law to annual crops growing upon the 
land of one who dies before they are haiwested. At common 
law, they go to his personal representatives rather than his 
heirs. But in Mississippi, such crops go to the heir, unless 

1 Fuller V. Wason, 7 N. H. 341 ; Roberts v. Whiting, 16 Mass. 186 ; Smith 
V. Jewett, 40 N. H. 533 ; Cook v. Cook, 11 Gray, 123. 

2 Wms. Ex'rs, 597 ; Co. Lit. 55 a. 

8 2 Bl. Com. 122; Co. Lit. 55 b; Stewart v. Doughty, 9 Johns. 108 ; 1 RoUe, 
Abr. 726, c. 9. 



ClI. V. § ;').] ESTATES FOR LIFE. 189 

tho jiidcrc of probate npiiropriatcs tlicni to tli. ■ •.. . ui.-i ..i 
administrator to he administiTi'd.' 

3. It will lie still, licrcaftcr, that tho rijrlit to cinljlonifntrt 
carrirs with it that (tf nitcrinir nj>on and i-nltivatin^: the hmd, 
and harvest inj; the oroi»s when lijic- 

4. Anmug tlio crops which arc considered to he letrally the 
snbjcct of cnihlenicnts arc corn, pease, beans, tares, hemp, 
Ihix, safTrtMi, nadons, potatoes, and the like, and j^rasscs, such 
as sainfoin, which are annually renewed. And, by way of ex- 
ception to the trcneral rule, hops, thonirh p-own on j»crmanent 
roots, and turpentine, though taken from trees, are the subject 
of emblements, because they re(piire annual trainiufj: and cul- 
ture to produce or gather.^ IJut clover or other grasses that 
endure more than one year are not included, nor the fruits 
of trees growinj^ upon the land, though planted by the tenant, 
because he knows when he jilants them that they cannot come 
to maturity and produce their fruit in a single year to rcjiay 
the labor bestowed upon their jilanting and culture.^ Th<»ULdi 
it seems that trees, sliiiibs, Ac, plauteil by n;ardeners and nur- 
sery-men simply for sale, may be considered as eml)race(l 
under emblements as between executor of tenant ft>r life and 
remainder-man or reversioner.'' 

5. This doctrine of eml)lements was borrowed from the 
feudal law, whereby, if the tenant died between the 1st of 
September and the 1st of March, the lord took the profits of 
the land for the year ; if between the 1st of March and the 
Ist of Se[)tember, the heirs of the tenant had them.'^ 

6. There was an exception, at common law, in resj)ect 

* McCormiok v. McConnick, 40 Miss. 760 ; Penhallow v. Dwight, 7 Mass. 34 ; 
1 Wms. Ex'rs, 594 ; 2 Redfu'ld, Wills, 143. 

a Co. Lit. 56 a ; post, p. '105. 

« Wilis. Ex'rs, 697 ; 2 Slmrsw. Rl. Com. 123, n.; Cora. Dig., " Bicns, T,. 1 ; " 
Co. Lit. 55 b, n. 364 ; Lewis t?. McNatt, 05 N. C. 63 ; State p. Moore, 11 In^«l. 70. 
Fobes V. Shattuck, 22 Barb. 568, that wheat straw ia emblements, and belongB 
to the tenant. 

* Wnis. Ex'rs, 598, 599 ; Evans v. Inplehart, 6 C. A; .1. 171, 188 ; Reiff r. Rt-iff, 
64 IVnn. St. 134, 137. So a tenant who has liarvesttMl his crop in .lune rannnt take 
as emblements stubble plouj;hed in ami f;ri>\vin;{ in Xovcinljcr, when tho tenancy 
ended in S<'ptemlM>r. Hendrixson r. Ciirdwi-ll, 9 Baxt. 3S9. 

« r<iitoii r. Holmrt, 2 Ea^t, 83 ; Taylor, Laud, k T. 81. 

* 2 Bl. Com. 123. 



140 LAW OF REAL PROPERTY. [bOOK L 

[*103] to *Gmblements in case of a dowress, because it was 
presumed that when her husband died she took 
the estate with the crops upon it, and therefore, though she 
died after having planted a crop, it went to the rever- 
sioner. But by the statute of Merton, 20 Hen. III. c. 2, 
the growing crop might be devised by her, or would go to 
her executors.^ 

7. But it is essential to the claim of emblements, at the 
common law, that the crop should have been actually planted 
during the life and occupancy of the tenant. No degree 
of preparation of the ground will give to one the fruits of 
seed planted by another after the determination of his ten- 
ancy.2 

8. In order to entitle tenant or his executors to emblements, 
the estate which he has must, in the first place, be uncertain 
in its duration. If he, knowing it will terminate before he 
can gather his crop, plants it, it is his own folly or generosity 
to his successor who will take it.^ So where one entered 
under an agreement of purchase and sale of the land between 
him and the owner, and planted crops, and the land-owner 
then refused to convey the land, the tenant was held to be en- 
titled to the same as emblements on the ground that he had 
been occupying as a tenant at will.* But where one in pos- 
session of land, for the recovery of which a suit was pending 
against him, let the same to one cognizant of the suit, who 
planted crops, and before they were gathered the claimant 
in the suit prevailed and expelled the tenant, it was held that 
the latter could not claim the crop as emblements.^ 

1 Co. 2d Inst. 80. 

2 Price V. Pickett, 21 Ala. 741 ; Gee v. Voung, 1 Hayw. 17 ; Stewart v. 
Doughty, 9 Johns. 108 ; Taylor, Land. & T. 82 ; Thompson v. Thompson, 6 
Munf. 514. 

8 Debow V. Colfax, 5 Halst. 128 ; Kittredge v. Woods, 3 N. H. 503; Whit- 
marsh V. Cutting, 10 Johns. 360 ; Taylor, Land. & T. 81 ; Chesley v. Welch, 37 
Me. 106 ; Harris v. Carson, 7 Leigh, 632 ; Termes de la Ley, " Emblements." 
Hence a tenant for a single year has been held not entitled. Pieeder v. Sayre, 70 
N. Y. 180. But where the tenancy was an oral one for two years with a right to 
emblements, it was held that this was not cut off by an insufficient notice to quit, 
lb. 

* Harris v. Frink, 49 N. Y. 24. 

fi Rowell V. Klein, 44 Ind. 290. 



en. V. § 3.] ESTATES FOR LIFE. 1 1 1 

9. So, in the second place, the tenancy nuist l»e <l«-t«Tniine<l 
by the act of CJod, as l>y death of the tenant, or tlie act of 
the lessor in cxpellinir him or ternjinating his lease ; for if 
the tenant abandons the premises, or volnntarily jints an end 
to the tenancv, he has no liirht to claim emlilrnn-nts.' Thns, 
if a wonKiii, tenant during widowhood, marry, she loses her 
right to cmMenients.- And these pi-inciples ajjply in eases of 
tenancies at will.^ 

10. IJut a tenant at snfTerance is not entitled to emble- 
ments.' Where, however, a jjurehaser under a foreclosure sale 
su lie red the tenant, cither the mortgagor or one claiming 
under him, to occupy the premises without interference for the 
term of three months, and in the mean time to go on and 
manage it, and jdant crops, it was held to give the tenant a 
right to claim these as emblements.^ 

* 11. This right to emblements is not limited to the [*104] 
original lessee or tenant for life, unless he is restricted 

bv the terms of his lease from underletting or assigning his 
term. His assignee, grantee, or sub-lessee, not only has a 
claim for the same emblements as the original tenant, Ijut in 
some cases may claim these where the former could not him- 
self have made such claim. Thus if the original tenant were 
to forfeit his estate by failing to perform a condition, or by 
committing a breach of a condition prescribed in his lease, he 
would thereby lose all right to the emblements. But if, be- 
fore such breach on his part, he should assign or underlet to 
another, and the estate should be defeated by such breach, 
his under-tenant or assignee would, nevertheless, be entitled 
to the growing crop which he had planted. As, for instance, 
if a tenant during widowhood should underlet and then 
marry, though she would l)y so doing lose her own right to 

1 Cases supra; Whitmarsh r. Cutting, 10 Johns. 360 ; Chesley r. Welch, 37 
Me. 106 ; 2 Bl. Com. 123; Oknds Cose, 5 Rep. 116 ; Chandler r. Thurston, 10 
Pick. 205, 210. 

a Hawkins r. Skeggs, 10 Humph. 31 ; Debow v. Colfax, 5 Halst. 128. 

' Tenncs de la Ley, "Emblements ; " Davis v. Thompson, 13 Me. 200 ; Dans r. 
Brockleliank, 9 N. H. 73 ; Sherburne v. Jones, 20 Me. 70 ; Stewart v. Dou^rhty, 9 
Johns. lOS ; Gland's Case, 5 Hep. 116 ; Chandler v. Thurston, 10 Pick. 205. 

* Doe V. Tunier, 7 M. & W. 226. 

* Alien V. Carpenter, 15 Mich. 25, 33. 



142 LAW OF REAL PROPERTY. [dOOK 1. 

emblements, lier tenant would not, because he was not in 
fault.i 

12. But if the tenant, having planted the crop, sell it as a 
growing crop, and then terminates his estate by his own act, 
the vendee will have no better right in respect to such crop 
than the lessee himself, and cannot claim them as emble- 
ments.2 

13. If the owner of land on which he has planted a crop 
sells the land, it passes a complete title to the crop. And if 
he convey a reversion, subject to an existing particular estate, 
it carries with it, as incident to such reversion, the same 
rights in respect to crops growing on the premises which the 
grantor himself has.^ 

14. If the owner of land plant crops and then conveys the 
estate to one for life, with remainder over in fee, and the ten- 
ant for life dies before the crop is gathered, it will not go to 

the personal representatives of the tenant for life, be- 
[*105] cause * he did not plant it, but to the remainder-man 

as a part of the inheritance.* So if a woman seised 
for life or in fee sow her land and marry, and her husband 
die before the crop is severed, she and not his representatives 
shall have the crop.^ But if the husband of tenant for life 
sow crops, and she dies, he will be entitled to the emblements.^ 
And in the case above supposed, if the grant for life had been 
to husband and wife and the survivor, and the husband had 
died, the wife would have taken the crops instead of the 
representatives of the husband.''' 

15. It was held in Liford's Case that, if a disseisor take the 
crops growing upon the premises, and the disseisee recover 
possession of the land, he may have trespass for such taking 
against the disseisor,^ but that if the disseisor make a feoff- 

1 2 Bl. Com. 124 : Bevans v. Briscoe, 4 Har. & J. 139 ; Taylor, Land. &T. 81 ; 
Davis V. Eyton, 7 Biiig. 154 ; Tud. Cas. 62 ; Bulwer v. Bulwer, 2 B. & A. 470. 
Cmilra, Gland's Case, 5 Rep. 116 ; Bittinger v. Baker, 29 Penn. St. 6Q. 

2 Debowv. Colfax, 5 Halst. 128. 

3 Foote V. Colvin, 3 Johns. 216 ; Burnside v. Weiglitman, 9 Watts, 46. 
* Wms. Ex'rs, 602 ; Grantham v. Hawley, Hob. 132. 

5 Tud. Cas. 62, cites Yin. Abr. " Emblements." 

8 Spencer v. Lewis, 1 Houst. 223. ^ Haslett v. Glenn, 7 Har. & J. 17. 

8 In Simpkins v. Rogers, 15 111. 397 ; Crotty v. Collins, 13 111. 567, it was 



ClI. V. § 3.] ESTATES FOR LIFE. 143 

ini'iit or louse of the prt'inisfs, ami tlio feofTco or lessee take 
the crops, the ilisseiscc cannot hiive trespass for such tak- 
ing', even after re-j'ainin^'' i>ossession, for the tenant eanie in 
by title.' 13nt this hitter pro})osition has often been tjues- 
tioned, and is in some States expressly denied to be law, and 
the disseisor's lessee, as well as his heirs, held liable to the 
disseisee.^ 

IG. To avail himself of the eniljlements, it is ol)vions that 
the tenant or his representative must have some ri^ht of entry 
or occui)ancy of the land itself ; and if the tenancy is deter- 
mined by death or otherwise soon after the plantinjr of a crop, 
this right may of necessity be continued for some months. 
The extent of this right may be stated to be this: lie may 
enter upon the land, cultivate the crop if a growing one, cut 
and harvest it when fit, and if interfered with in the reason- 
able exercise of these privileges by the landlord or reversioner, 
or if the crop be injured by him, he may have an action for 
the same.^ 

17. But this docs not give him a right to exclusive posses- 
sion of the land, but merely tiie right of ingress and egress for 
the purposes above mentioned, while, for all other purposes, 
the landlord or reversioner is in exclusive possession.* 

18. A question has been raised whether for this qualified 
occupation of land, the tenant or his executors would be 
chargeable for rent, or be bound to make compensa- 
tion. Plowdcn raises * the query and seems to incline [•lOOj 
to the opinion that they would be, except in case of 
executors of tenant in fee. And this query is repeated by 
Williams in his treatise on Executors.^ 

19. Though the question, what are lawful estovers and em- 
blements, is pretty well defined by the common law, it is held 

held that trover lay. In Lindsey v. Winona R. R., 29 Minn. 411, however, the 
liability to the disseisee was limited to crops planted by the latter, or for gra-ss or 
other /rudu3 naluraks; while in Page r. Fowler, 39 Cal. 412, a liability for cropa, 
even of hay, was denie<l. 

* Liford's Case, 11 Rep. 51, and see Tennos de la Ley, " Emblements." 

2 Trubee v. Miller, 48 Conn. 347 ; Emerson v. Thompson, 2 Pick. 478, 485. 

* Forsythe r. Price, 8 Watts, 2S2. 

* Humphries r. Humphries, 3 Ired. 302 ; Wms. Ex'rs, 605 ; Lit. g 63. 
» Plowd. Queries (at the end of his Report*), 239 ; Wms. Lx'rs, 605. 



144 LAW OF REAL PROPERTY. [BOOK I. 

in this country that they often depend upon the usages and 
customs of different localities ; and though this will be further 
discussed in connection with the subject of waste, it may be 
proper here to refer to some of these customs ; usage, wliere 
it is applied, being considered as entering into and forming 
a part of the contract or title by which the the tenant 
holds.^ 

20. Thus it is held a good and valid custom in Pennsyl- 
vania, New Jersey, and Delaware, that if the tenant sows 
crops in the autumn, which will not be ready for harvesting 
till the next autumn, he may claim them as emblements, al- 
though, in the mean time, his lease may have expired.^ So 
it was held in Ohio that the parties to a lease in which noth- 
ing is said of the way-going crop will be governed by the 
custom of the place in which the land is situate. Thus where 
a lease ended on the 1st of April, the tenant was held to be 
entitled to a crop of wheat then growing thereon.^ And the 
same doctrine is applied in Maryland.* 

21. Although the principle that the tenant who sows a crop 
shall reap it, if the term of his tenancy is uncertain, is so 
broad and so nearly universal in its application, yet if a mort- 
gagee forecloses his mortgage, whatever crops are then growing 
upon the mortgaged premises, if planted after the mortgage is 
made, become the mortgagee's, whether planted by the mort- 
gagor or by his tenant, free from any claim upon them by 
such tenant.^ But a foreclosure after the crops are severed 

1 Van Ness v. Pacard, 2 Pet. 137, 148; Taylor, Land. & T. 82, 83 ; Stultz v. 
Dickey, 5 Binn. 285. 

2 Gordon v. Little, 8 S. & E. 533 ; Van Doren v. Everitt, 2 South, 460 ; Temple- 
man V. Biddle, 1 Harringt. 522 ; Smith, Land. & T. 258, Am. ed. n. But this is 
not uniformly true, for a tenant could not thus sow his ground with oats and 
claim to occupy till they were ripe after the natural expiration of his lease, if 
sown for instance in March, and the lease expires in April. Howell v. Schenck, 
24 N. J. L. 89. But no such custom exists in N. Y. Reeder v. Sayre, 70 
N. Y. 180. 

8 Foster v. Robinson, 6 Ohio St. 90, 95, where the court cite, as to custom 
making law, Wigglesworth v. Dallison, Doug. 201 ; Huttou v. Warren, 1 M. & W. 
466. 

4 Dorsey v. Eagle, 7 G. & J, 321. 

6 Lane v. King, 8 Wend. 584 ; Shepard v. Philbrick, 2 Denio, 174 ; Crews v. 
Pendleton, 1 Leigh, 297 ; Gillett v. Balcom, 6 Barb. 370 ; Jones v. Thomas, 8 
Blackf. 428 ; Howell v. Schenck, 24 N. J. 89. 



CH. V 



b^ •!•] 



ESTATES FOR LIFE. 



i\'> 



(loi'S nut carry an inti'n^t in ilniu tu the nmrtgagce or \niv- 
chaser.' 

2'2. The foregoinj^ iloctrint; in res)K'ct to the ri^^lits of a 
mortgagee wouKl jirobahly he limited to ca.ses where a mort/- 
gage creates an estate in the hmd. JJiit in the case of a judg- 
ment lien, a dilTerent rule prevails. A tenant who hires lan<l 
suhjt'ct to such a lien, and plants crops upon the same before 
a sale of the j)remises made, may claim them against a pur- 
chaser under a sherilTs sale.- 



• SECTION IV. 



OF WASTE. 



[•107] 



1. Tcnftnt mny not cotmnit waste. 

2, 3. What constitutes waste. 

4. English Rules nut always applicable here as to waste. 

5. Waste in cutting or injuring trees. What are tinilwr trees. 
6, 7. Rules ixs to cutting trees l>ting waste, in this country. 

8. Where wood cut Injlongs to tlic one who cuts it. 

9. Otlier iinprovfujcnts (ju an estite no defence as to waste done. 
10. What acts of cutting trees are or are not waste. 

11-14. Rights of dowTess to cut timber, &c. 

15. When <utting trees is trespa.ss and not waste. 

16-19. Wiuste in oiM-ning pits, mines, ijuarries, &c 

20-22. Waste by improiH-r cultivation of laud. 

23-25. Waste in buildings, wliat. 

26. Rule as to what is waste to builduigs. 

27. Instances of alleged acts of waste. 

28. Waste by removing buildings. 

29. Waste in resiHJct to fences and liouses going to decay. 
30-33. To what extent tenants bound to rejiair. 

34. For wliat acts of waste tenant is excused. 

35. Tenant liable for acts of waste by strangers. 

36, 37. How far tenant is liable for wa.ste by accidental fires. 

38-42. Of tlie remedy against tenant for waste. 

43. If tenant reiMiirs Itefore suit, it bars the action. 

44-47. EITeet of want of privity ujm)!! action of wa.ste. 

48. Action on the case, &c., for waste. 

49, 50. As to property in trees cut in committing waste. 

51. Chancery restrains wilful waste, though tenant is without im- 
|K'achment. 

» Ruckout r. Swift, 27 Pal. 433 ; Codrington r. Johnstone, 1 I5»'av. .liO. 
' Rittinger r. R.aker, 29 Pfun. St. 66, overruling the cases of SaUadc v. 
James, 6 Reun. St. 144, and Groffp. Levan, 16 Pcnu. St. 179. 

VOL. I. — 10 



146 LAW OF REAL PROPERTY. [BOOK I. 

52. Ministers liable for waste on glebe lauds. 

53-57. How far statutes of Gloucester, &c., adopted here. 

58. Actions on the case, rather than of waste, in use. 

59. Ordinary remedy, now sought in chancery. 
60, 61. In what cases ec^uity will enjoin acts of waste. 

62. In what cases equity gives compensation for waste. 
63, 64. Provisions for cutting timber, making improvements, &c. 

1. An important disability to which all tenants for life as 
well as for years are subject, is that of not committing waste, 
or doing or suffering that to be done upon the premises which 
essentially injures or impairs the inheritance of the estate 
occupied by the tenant. This restriction existed at common 
law in respect to estates in possession of tenants in dower 
and curtesy, because, as these were created by the law itself, 

*it was thought that the law was bound to protect the rever- 
sioner or remainder-man from being thereby injured. But 
where the estate of the tenant was created by act of the par- 
ties, it was held that if the grantor or lessor failed to protect 
the estate by stipulations in his deed or lease, the law was not 
bound to supply the omission. To remedy this defect the 
statute of Marlbridge, 52 Hen. Ill, c. 24, was passed, whereby 
"fermors during their terms, shall not make waste, sale, nor 
exile of house, woods, and men, nor of anything belonging to 
the tenements that they have to ferm," and were made liable 
to " yield full damage " for so doing. And it is said '■'■ firmarii 
do comprehend all such as hold by lease for life or lives or 
for years, by deed or without deed." By this statute only 
single or actual damages were recoverable for waste committed. 
But by the statute of Gloucester, 6 Edw. I. c. 5, the party com- 
mitting the injury in an action of waste lost the place wasted 
and treble damages, or " thrice so much as the waste shall be 
taxed at." ^ 

2. In respect to what is embraced under the term waste, it 
is divided into that which is voluntary and that which is per- 
missive, the one being by some act done which injures the 
inheritance, the other by omitting some duty which causes 
an injury to result to the inheritance. To tear a house down 
is voluntary waste ; to suffer it to go to decay for want of 

1 Co. 2 In.st. 144, 145 ; Id. 299 ; Sackett v. Sackett, 8 Pick. 309, 312-315. 



ril. V, § 4.] K<T.\TtS Vnli LIFE. 1 !? 

necessary repair, is |)erinissive. This will l»e found ;iii im- 
portaut distinction in its conseijuences.' 

•3. IJut whatever the act or omission is, in ord<r to [*l*i*^J 
its constitntinj; waste, it must either diminish tlie vahie 
of the estate, or increase the burdens upon it, or impair th"- 
evidence of title of him who has the inheritance.- Wa^te, in 
short, may ho defined to be whatever does a lustint; damage 
to the freehold or inheritance, and tends to the j)erman(nt 
loss of the owner in fee, or to destroy or lessen the value of 
the inheritance.^ 

4. In a|»j»lyin,iz; this rule it will lie found that maiiv acts 
which in Enirland would be waste will not be such ln-ic, in 
consequence of the difference in the condition of the two 
countries. And it often becomes a (juestion iov a jury to 
determine whether a certain act be or be not waste, without 
referring to a criterion drawn from any other country. The 
rule as to what constitutes waste is uniform. Its ajijilication 
dei)ends ujion the condition and usages of the j)lace where it 
is to be made.* 

5. The first branch of the subject, as it is generally treated, 
relates to felling, lopping, or injuring growing trees upon the 
premises. The rule of the common law is that to fell timber, 
to lop it, or to do any act which causes it to decay, is uniformly 
waste.^ "Dak, ash, and elm be timber trees in all jilaces," 
beeches in IJuekinghamshire, and birches in JJerkshire, are so 
regarded; but hornbeams, hazels, and willows, are never tim- 
ber ; and yet if standing in defence or safeguard of the house or 
land, it woulil be waste to cut them ; as it would be to '' stub 
up " a quickset hedge of white-thorn.*' The same would be the 



1 3 Dane, Abr. 214 ; 2 Bl. Com. 281. 

2 Huntley v. Hiis,>l-I1, 13 Q. B. 572, 5S8 ; 2 Bl. fom. 281 ; 3 Dane, ALr. 215. 
•t M.Crif^or v. Brown, 10 X. Y. 114, 117 ; Pi-.tTitt v. H.Mulcrson, 29 Mo. 325. 

* 3 Dane, Abr. 232 ; Tynchon v. Stpamx, 11 Met. 304 ; Kec-ler r. Fjistnian, 11 
Vt. 2y3 ; Jackson r. Til)bits, 3 W.-nd. 341 ; .Tackson r. Brown.wn, 7 .b.hns. 227 ; 
Walker, Am. Law, 278 ; Kiild v. Donnison, a Barb. 9 ; 3 Dane, Abr. '214 : Lynn's 
Api>., 31 Penn. St. 44 ; Drown r. Smith, .52 Me. 141. 

* Co. Lit. 53 a ; 2 Bl. Com. 281 ; Taylor, Unil. & T. 166. 

* Co. Lit. 53 a ; 3 Dane, Abr. 218, 233 ; TnJ. Caa. 65 ; Honywoo.1 r. Hony- 
wood, L. R. 18 Eq. 306, limits oak, ash, or elm, as timK^r, to their being twenty 
years of age, and not too old to have usable wood in them. 



148 LAW OF EEAL PROPERTY. [BOOK I. 

rule as to shade and ornamental and fruit-trees, unless past 
bearing.! 

6. In the United States, whether cutting of any kind of 
trees in any particular case is waste, seems to depend upon 
the question whether the act is such as a prudent farmer 
would do with his own land, having regard to the land as an 
inheritance, and whether the doing it would diminish the value 

of the land as an estate.^ 
[*109] * 7 Questions of this kind have frequently arisen 
in those States where the lands are new and covered 
with forests, and where they cannot be cultivated until cleared 
of the timber. In such case it seems to be lawful for the ten- 
ant to clear the land if it would be in conformity with good 
husbandry to do so, the question depending upon the custom 
of farmers, the situation of the country, and the value of the 
timber. The jury are in each case to determine whether by 
clearing the lands the tenant has cut so much timber as to 
injure the inheritance.^ 

8. Wood cut by a tenant in clearing the land belongs to 
him, and he may sell it,^ though he cannot cut the wood for 
purposes of sale ; it is waste if he does.^ 

9. Nor can the tenant, when sued for cutting and selling 
timber, recoup or make counter-claim for improvements made 
by him upon the premises at another time.^ 

10. In applying these rules it has been held in Vermont not 
to be waste to cut and remove dead or decaying timber in 
order to clear the land and give the young trees a chance to 

1 3 Dane, Abr. 217 ; Id. 233. 

'^ Givensi). McCalmont, 4 Watts, 460; Chase v. Hazelton, 7 N". H. 171 ; Keeler 
V. Eastman, 11 Vt. 293 ; Shine t;. Wilcox, 1 Dev. & B. Eq. 631 ; Smith v. Poyas, 
2 Desaus. 65 ; Hickman v. Irvine, 3 Dana, 121 ; Parkins v. Coxe, 2 Hayw. 339 
(Martin & Hayw. 517). See Phillips v. Smith, 14 M. & W. 594, n. to Am. ed. 

3 Walker, Am. Law, 278 ; Jackson v. Brownson, 7 Johns. 227 ; Morehouse v. 
Cotheal, 2 N. J. 521 ; Keeler v. Eastman, 11 Vt. 293 ; McCullough v. Irvine, 13 
Penn. St. 438 ; Hastings v. Crunckleton, 3 Yeates, 261 ; Harder v. Harder, 26 
Barb. 409 ; McGregors. Brown, 10 N. Y. 114 ; Proffittt). Henderson, 29 Mo. 325; 
Davis V. Gilliam, 5 Ired. Eq. 308. 

* Crockett v. Crockett, 2 Ohio St. 180 ; Davis v. Gilliam, mp. 

s Parkins v. Coxc, 2 Hayw. 339 (Martin & Hayw. 517) ; Smith, Land. & T. 
192, n. Am. ed. ; Chase tJ. Hazelton, 7 N. H. 171 ; Clemence v. Steere, 1 R. I. 272. 

^ Morehouse v. Cotheal, 22 N. J. 521 ; Kidd v. Denuison, 6 Barb. 9. 



en. V. § 1.] ESTATES FOU LIFE. 1 10 

prow.i In Massachusetts, ciittinir uak-trccs for fuel is not in 
itself waste, because of the common usii^c ; thou^rli it wouM 
he so if they were sold for timber, even if the ninney was aj>- 
plied to piurliase firewood for the use of the tenant.^ And 
where land was appendant in its use to, and let with, a fur- 
nace, it was held not to be waste to cut wood from the prem- 
ises to sujjply the furnace. And the same rule was 
ajiplied in * the case of .salt-works upon the premi.ses, [*110] 
where wood was cut to carry on the manufacture.^ So 
in Pennsylvania it was held not waste for the mortjra^or, 
thouirh insolvent, to cut and sell timber, and di^' and sell coal 
and minerals ; because products of this kind are usually so 
intended.^ 

11. Althougli it is not proposed to consider the ri<_dits of a 
dowress to her lands to any considerable extent here, it may 
be observed that her rijfhts in the matter of cutting timber 
are by no means uniform in the dilTerent States. At common 
law she could only have estovers, and if she went beyond that 
she was liable to forfeit the premises wasted. For this reason 
it was held in Massachusetts that she could not be dowablc of 
wild lands, because the very act of clearing for cultivation 
would be waste and work a forfeiture.^ But this does not ex- 
tend to a wood-lot or other land used with a barn or dwelling- 
house, althougli such wood-lot or other land has never been 
cleared.*^ 

12. In other States she is dowaldc of wild lands, and may 
clear a reasonable proportion of the lands set out to her, for 
the j)urposes of cultivation." In Maine, waste does not lie 
against the tenant in dower, though an action in the nature of 
waste will.^ 

^ Keeler v. Enstnian, 11 Vt. 293. 

2 Pncl.-lforJ V. Piuklfonl, 7 Pick. 152 ; Babb v. Perley, 1 Mc. 6. So in Rhode 
Island. Lester v. Young, 14 R. I. 579. 

» Den V. Kinney, 2 South. 552 ; Findlay v. Smith, 6 Munf. 134. 

* Angier v. Agnew, 98 Penn. St. 587. 

' Conner r. Shepherd, 15 Mass. 164. « Pub. Stat. c. 124, § 4. 

' Haatings v. Crunckleton, 3 Ycates, 261 ; Findlay v. Smith, 6 .Munf. 134 ; 
Alexander i'. Fisher, 7 Ala. 514. Such i.s the law in New York and IVnn.syl- 
vaiiia. 4 Kent, Com. 76. And in North Carolina. Balh-ntiiie v. Poyner. 2 
Hayw. 110 (Martin & Hayw. 268); Parkins v. Coxe, 2 Ha\-w. 339 (Martin k 
Hayw. 517). So iu Tennessee, but not to im|)air the estate. Owen r. Hyde, 6 
Yerg. 334. 8 Smith v. FoUansbce, !3 Mc. 273. 



150 LAW OF REAL PROPERTY. [BOOK L 

13. And if the mode of using the land has consisted in 
cutting the growth upon it as the customary source of profit, 
the widow may continue to do so. Thus to cut and sell staves 
and shingles/ or hoop-poles,^ under the circumstances above 
supposed, would not be waste. 

14. Where the entire dower lands set off to a widow consist 
of different parcels of the same original estate, but the rights 
of reversion in the different parcels are in different persons, 
her right of cutting upon any one of them is not thereby af- 
fected, if she fairly treat it as one estate, and is not guilty of 

partiality or malice towards any one of the reversioners.^ 
[*111] * 15. If a tenant cut trees upon leased premises 

which are excepted in his lease, he is guilty of tres- 
pass, but not waste ; * and if tenant carry away trees that have 
been blown down, he would be liable for them in trover, but 
not in waste.^ 

16. Another species of waste consists in opening gravel pits 
in the land, and digging and selling gravel therefrom, or dig- 
ging up and selling the soil or clay, or digging clay and mak- 
ing it into bricks for sale ; for a tenant for life may neither 
dig clay nor cut wood upon land for the purpose of making 
bricks for sale.^ 

17. But if digging and selling gravel, clay, &c., from pits 
in the land has been the usual mode of improving the same, 
it would not be waste to continue to do so in pits alread}^ 
opened^ 

18. To open lands to search for mines, unless mines are 
expressly demised with the lands, would be waste ; so it would 
be to open new mines, unless the demise includes them.^ But 

1 BalleBtine v. Poyner, 2 Hayw. 110 (Martin & Hayw. 268). 

2 Clemence v. Steere, 1 R. L 272. 

8 Padelford v. Padelford, 7 Pick. 152 ; Dalton v. Dalton, 7 Ired. Eq. 197. 

4 1 Cruise, Dig. 116. 

6 Shult V. Barker, 12 S. & R. 272. 

6 Huntley v. Russell, 13 Q. B. 672, 591 ; Taylor, Land. & T, 164 ; Livingston 
V. Reynolds, 2 Hill, 157 ; Co. Lit. 53 b ; Tud. Cas. 65. 

T Huntley v. Russell, 13 Q. B. 591 ; Knight v. Mosely, Amb. 176 ; Tud. 
Cas. 65 ; and see Angier v. Agnew, 98 Penn. St. 587 ; ante * 110. 

8 Co. Lit. 53 b ; 2 Bl. Com. 282; Com. Dig. "Waste," D. 4 ; Saunders's Case, 
5 Rep. 12 ; Stougliton v. Leigh, 1 Taunt. 402, 410 ; Darcy v. Askwith, Hob, 
234 ; Viner v. Vaughau, 2 Beav. 466. 



ClI. V. § I.] KSTATKS FOU LI IK. l.'l 

if the inim'S arc alri'Jidy ojmmumI wIkii tlio tenant takfs ilic 
estate, it is not waste to continue to work them even to ex- 
haustion. It is hut taking' the aecruinj^ profits of the 8oil.* 
Nor wouKl it l)e waste to o]»cn new shafts or jiits to follow th«i 
same vein.- And this riglit he may sell to others. The per- 
sons thus entitled may mine and sell the mineral, and for this 
purpose may make new openings, build railroads, and supply 
all ordinary facilities for carrying on the husine.s.s. But the 
improvements tlius made become the property of the rever- 
sioner upon the termination of the life estate.^ 

ll>. The sarac,i)rincij>le apjjlies to salt-works, as to minerals. 
If there is an existing salt well on the premises and a numu- 
factory of salt, it would not be waste to dig a new salt well in 
connection with it.* 

*20. Waste may be committed by the manner in [*112] 
which land is managed in the way of cidture. And 
in Enirland, the early cases at least adopt a very stringent 
rule, holding it waste to change one kind of land to another, 
as wood or meadow or pasture into arable land, and tin- like. 
And one ground upon which this is held is, that changing the de- 
scription of lands might endanger the evidence of ownership.^ 

1 2 Bl. Com. 282 ; Neel v. Neel, 19 Penn. St. 324 ; Taylor, Land. & T. IfiS ; 
S tough ton V. Leigh, 1 Taunt. 410. 

'- Clavering v. Clavering, 2 P. Wms. 388 ; Findlay v. Smith, 6 Munf. 134 ; 
Crouch r. Puryear, 1 Rand. 258 ; Billings i-. Taylor, 10 Pick. 460 ; Coates r. Clu-c- 
ver, 1 Cow. 460. There is a tendency in the courts of Pennsylvania to extend 
the right of lessees to open new mines without subjecting themselves to the con- 
sequences of waste, where the lands leased are chielly valuable for the minerals 
they contain. See Smith, Land, k T. 192, 193, Am. ed. n. And see Angier c. 
Agnew, 98 Penn. St. 587. 

■ Irwin V. Covode, 24 Penn. St. 162 ; Lynn's App., 31 Penn. St. 44 ; Kicr r. 
Peterson, 41 Penn. St. 357. 

* Findlay v. Smith, 6 Munf. 134 ; Kier r. Peterson, 41 Penn. St. 357. This 
case presented a novel question under the application of the principle of the text. 
The defendant leased to the plaintiff the right to bore salt wells for the plaintiffs 
business, and to manufacture salt thereon for an indefinite period of time, paying 
therefor every twelfth barrel of salt manufactured. After a while |M?troli-um be- 
gan to rise in the wells, in connection with the salt water, and, being valuable, 
both parties claimed the right to take it. It was held that the proinrty in the 
jMitroleum remained in the lessor, to be accounted for by the lessee, if u»c«l or ap- 
propriated by him. 

» 2 Bl. Com. 282 ; 3 Dane. Abr. 218 ; Com. Dig. " Waste," D. 4 ; Diircy r. 
AskwiUi, Hob. 234 a ; Co. Lit. 53 b. 



152 LAW OF REAL PROPERTY. [BOOK I. 

21. But it is apprehended that the usages of this country 
are such, that no such change in the mode of culture would, 
of itself, be waste. The question would depend upon whether 
it was in conformity with the rules of good husbandry or not, 
and would injure the inheritance.^ Reference is often had in 
this kind of waste, as in that by cutting timber, to the usages 
of the place.2 And where it was customary to sell the hay 
from farms, it would not be waste to do so, though esteemed 
so elsewhere. 

22. But it would be waste to suffer pastures to become over- 
grown with brush ; ^ or to impoverish fields by constant tillage 
from year to year ; * or to remove the manure made upon the 
premises in the ordinary course of husbandry ; ^ or to suffer a 
bank to become ruinous, whereby the water of the sea or a river 
overflows and spoils meadow ground.^ But where in altering 
the course of a creek, which was in itself an act of good hus- 
bandry, the water had the effect to destroy growing timber, 
which had not been anticipated, it was held not to be an act 
of waste.^ 

23. In respect to buildings, waste may be either voluntary 

or permissive. By the law, as understood in England, 
[*113] * removing wainscots, floors, or things fixed to the 

freehold in a house, pulling down or unroofing a 
building, changing it from one kind to another, as a corn-mill 
to a fulling-mill, a dwelling-house into a store, two chambers 
into one, or e converso, and the like, would be waste at the 
common law.^ 

24. In applying these rules, it has been held that pulling 
down a house and building another even upon a more favora- 

1 3 Dane, Abr. 219 ; Crockett v. Crockett, 2 Ohio St. 180 ; Taylor, Land. & T. 
170, 171 ; Clemence v. Steere, 1 R. I. 272 ; Keeler v. Eastman, 11 Vt. 293 ; Phil- 
lips V. Smith, 14 M. & W. 594 ; McGregor v. Brown, 10 N. Y. 114, 118 ; Proffitt 
V. Henderson, 29 Mo. 325. 

2 Jones V. Whitehead, 1 Parsons, 304; Smith, Land, k T. 192, n. Am. ed.; 
Sarles v. Sarles, 3 Sand. Ch. 601 ; "Webster v. Webster, 33 N. H. 18, 25. 

8 Clemence v. Steere, 1 R. L 272. 

* Sarles v. Sarles, 3 Sandf. Ch. 601. 5 Lewis v. Jones, 17 Penn. St. 262. 

6 Com. Dig. " Waste," D. 4; Co. Lit. 53 b. 
' Jackson v. Andrew, 18 Johns. 431. 

8 3 Dane, Abr. 215; Com. Dig. "Waste," D. 3; Taylor, Land. & T. 166; Lon- 
don V. Greyme, Cro. Jac. 181; Co. Lit. 53 a, n. 344; 2 Rolle, Abr. 815. 



CII. V. § 4.] ESTATES FOR LIFK. l')3 

blu .sUl- ui)oii tlie same farm, would be wuhIo, aiul, aniont,' (jthcr 
reasons, because it tends to destroy llic evidence of identity.' 
Nor woiibl it make any dilVerence that the tenant, l»y pulling 
down a buiUling ami rel)uilding it of a dilTerent fashion, makes 
it mor(! valuai>le than at lirst.''^ 

25. But it is apprehended that a more liberal rule is now 
applied in respect to constructive acts of waste in En^'iand 
than formerly, and there certainly is a much more lil)eral eun- 
struction put upon such acts in this country than that of the 
common law. Thus, the cuttiuL'" a duov in a house, if it did no 
actual injury and did not tend to destroy the evidence of the 
reversioner's title, would not be waste.^ The proper test in 
all these cases seems to be, does the act essentially injure the 
inheritance as it will come to the reversioner ; and this is a 
question for the jury.** 

26. The law seems to be correctly stated by the chancellor 
in Winship r. Pitts. " It is not waste for the tenant to erect 
a new edifice upon the demised premises, provided it can be 
done without destroying or materially injuring the buildings, 
or other improvements already existing thereon. lie has no 
right to pull down valuable buildings, or to make imj)rove- 
mcnts or alterations which will materially or permanently 
change the nature of the property so as to render it 
impossible for him to restore * the same premises, [*114] 
substantially, at the expiration of the term. It cannot 

be waste, to make new erections upon the demised premises 
which may be removed at the end of the term without much 
inconvenience, leaving the property in the same situation it 
was at the commencement of the tenancy, and the materials 
of which new buildings, if left on the premises, would more 
than compensate the owner of the reversion for the expenses 
of their removal,"^ 

27. In accordance with the principle thus laid down, vari- 

1 Huntley i;. Ruasell, 13 Q. B. 588. ^ 2 Rolle, Abr. 815, pi. 17, IS. 

» Young V. Spencer, 10 B. & C. 145; Jackson v. Tibbits, 3 Wend. 341. 

* Young V. Spencer, 10 B. i: C. 145 ; Doe v. Burlington, 5 B. i: Ad, 507; 
Smith, Lnnd. & T. 194, n.; Jackson v. Andrew, 18 Johns. 431; Hasty r. Wheeler, 
12 Me. 434 ; Phillips i-. .Smith, 14 M. k W. Am. ed. 589. 595, u. ; Webster c 
Webster, 33 N. H. 25; McGregor v. Brown, 10 N.Y. 114, 118. 

» Winship v. Pitts, 3 Paige, 262. 



154 LAW OF REAL PROPERTY. [BOOK L 

ous cases have been decided in this country. Thus, in the 
case just cited it was held not waste for the tenant for years of 
a house and lot in the city of New York to erect a livery stable 
upon it. In another, the tenant for years tore down a dilapi- 
dated building, and erected another of the same size on the 
same foundation, and at the end of the term moved it off.^ In 
another, the tenant for life erected a new smokehouse in place 
of one gone to decay, from materials obtained on the home- 
stead.- In another, the tenant for life tore down a dilapidated 
barn which was in danger of falling, and it was held not to 
be waste.^ 

28. How far it is waste for one in possession of structures 
erected by him on land the title to which remains in another, 
depends upon the circumstances under which the erection 
was made, which have been discussed at large ^ already, need 
not be here referred to in detail. Briefly it may be said that 
a tenant for years may within his term or lawful holding 
remove structures erected by him for the purpose of trade or 
agriculture ; ^ and so may any one, structures of whatever kind 
placed on the land with the express or implied consent of the 
landowner to their remaining personalty.^ But where without 
such consent," or where a valid contract could not be made 
between the builder and the landowner, as in the case of 
husband and wife, or where a tenant for life makes 
[*115] * permanent improvements, it would be waste to re- 
move what was so attached to the land.^ It would, 
however, be otherwise, if the structure was never in fact 
affixed to the land.^ And where a railroad company took 
lands by eminent domain, and erected stone piers thereon for 
a bridge for the railroad, it was held that, upon the company 
abandoning the land, these piers did not, as fixtures, belong 
to the owner of the land.^*^ 

1- Beers v. St. John, 16 Conn. 322. 2 Sarles v. Sarles, 3 Sand. Ch. 601. 

8 Clemence v. Steere, 1 R. L 272. * See ante, *3 et seq. 

5 Van Ness v. Pacard, 2 Pet. 137 ; 3 Dane, Abr. 222. 6 Ante *3. 

7 Bonney v. Foss, 62 Me. 248 ; Madigan v. Macarthy, 108 Mass. 376. 

8 Dozier v. Gregory, 1 Jones (N. C. ), 100 ; ilcCullough v. Irvine, 13 Penn. St. 
438 ; Washburn v. Sproat, 16 Mass. 449. 

9 Austin V. Stevens, 24 Me. 520. 

10 Waguer v. Cleveland, &c. R. R., 22 Ohio St. 563. 



en. V. $ 4.] KSTATE.S VOH LIFE. 1',') 

20. Thoiit^li a tenant is clearly liahle if he permits n liotise 
or fences (tu tin- prcniiscs to ^o toilrcay, when by the exorcise 
of n'as<)n:il)li' ilili^ence he mitrht prevent it, it is not easy to 
lay down rules d jiruiri to deline in all cases when and how 
far a tenant shall act. Decay is (jften so gradual that it is 
diflicult to determine when a tenant is hound to repair, or how 
far he shall go in making repairs in any given case. And this 
is especially so in case of estates for years. And, as a general 
rule, whatever would he waste to houses or fences in England, 
would lie in this country.' If a tenant erect a new house, he is 
as much hound to keep it in repair as he would be a house 
standing when he entered.^ 

30. A tenant from year to year is not held liable to make 
good the mere wear and tear of the premises.^ lie is only 
obliged to keep the house wind and water tight.* 

31. But that does not seem to be the measure of what is 
required of a tenant for years or for life.'' In this country, 
the latter is bound to keej) the premises in repair, whether 
there is such a stipulation in the lease or not.^ And this he 
must do though there be no timber upon the premises," 
though it is said that in sucii case, if tenant be in by lease, 
the lessor must provide timber necessary for the repairs, 
if there be no fault in the lessee.^ But while he is bound 
t(^ use ordinary care to prevent buildings going to decay, 
he is not bound to expend extraordinary sums for that pur- 
pose." 

*32. If a house is uncovered or ruinous when the [*110] 
tenant takes possession, he will not be made liable by 
suffering it to remain so, though if there is timber upon the 
premises he may use it for rei)airintr the house. '"^ It would bo 
a doulde waste to let a house go to decay, and then cut timber 
to repair it. 

» 3 Dane, .Vbr. 214 ; M. 239 ; Smith. Lnn.l. k T. 196. 

a 3 Dane. Abr. 215. ' Torriano v. Young, 6 Car. & P. 8. 

♦ Auworth V. Jolinson, 5 Car. & P. 239. 
- Smith, Land, k T. 195. 

• Long I'. Fitzsimmons. 1 Watts &. S. 530. 

' Co. Lit. 53 a. • Com. Dig. "Estate by Grant." E. 3. 

» Wilson r. Edmonds. 24 N. IL 517. 
" 3 Dane, Abr. 221, 222 ; Co. Lit. 53, 54 b; Clemence r. Slecrv, 1 R. L 272. 



156 LAW OF REAL PROPERTY. [BOOK L 

33. In England, it will be sufficient in respect to the fences, 
if the tenant keep them in as good repair as he finds them ; 
nor would he be at liberty to cut timber to build fences where 
there were none before,^ though it is apprehended that a 
different rule would be applied in this country, making it de- 
pend upon the usages of the place and the rules of good 
husbandry there, 

34. Though a tenant is liable for acts of waste done upon 
the premises by a stranger, he will not be for what is done by 
the act of God, public enemies, or the law. But if a house be 
unroofed by a tempest, the tenant may not suffer it to remain 
so.^ And where a surveyor of highways, under authority of 
law, opened gravel pits within the demised premises, the ten- 
ant was held not liable for suffering it to be done.^ 

35. With the above exceptions, the tenant is bound to pro- 
tect . the premises from waste, even against strangers, or is 
responsible to the reversioner for the same, and may have his 
remedy against the wrongdoer.^ But in Michigan, if a tenant 
for life has conveyed away his estate, he will not be liable for 
any waste, committed by his grantee, although such tenant for 
life be a tenant in dower .^ 

36. In England, by statute (6 Anne, c. 31), any person is 
exonerated from the consequences of a fire which shall take 
by accident in his own house, unless he has bound himself by 
some express stipulation. But this does not extend to cases 
of fires caused by carelessness on the part of the tenant of 
such house. ^ 

37. It is said there are no statutes upon the subject in 
the United States (except in New York, in regard to fires 

1 Co. Lit. 53 b ; 3 Dane, Abr. 219. 

2 Co. Lit. 54 a ; 3 Dane, Abr. 216, 221 ; Smith Land. & T. 195, n. ; Pollard 
V. Shaaffer, 1 Dall. 210. 

8 Huntley v. Russell, 13 Q. B. 572, 591. 

* Co. Lit. 54 a ; Doctor & Stud. 112 ; Fay v. Brewer, 3 Pick. 203 ; 3 Dane, 
Abr. 225 ; Co. 2d Inst. 145 ; Wood v. Griffin, 46 N. H. 230, 237, 240 ; Cook v. 
ChampL Tr. Co., 1 Denio, 91; Attersol v. Stevens, 1 Taunt. 183, 198 ; Austin v. 
Huds. Riv. R. R., 25 N. Y. 334. 

6 Beers v. Beers, 21 Mich. 464. 

8 Filliter v. Pliippard, 11 Q. B. 347. There was a second statute, 14 Geo. IlL 
c. 78, § 86, somewhat enlarging that of Anne, extending it " to stable, barn, or 
other building, or on whose estate any fire," &c., shall begin. 



cii. V. § t.] i:sTATn>; for lifk. l.'T 

ill woods * and liillow laiul, and one which is the Ranio ['11 "J 
as the statute of Anne, in New Jtisey and l)ola\rarc), 
thou^di there are sundry cases where a party who has caused 
damage to the property of anotlier hy carelessly setlinjr or 
niana;ring; lire upon his own hind has heen hehi responsiljU?. 
But if the lire occurs without his fault, while exercising rea- 
sonable care and diligence, the tenant would not bo responsi- 
ble. • The statute of Anne has been adopted as a part of the 
conunon law by the courts of Wisconsin, but not that of 
14 (leo. 111. l>ut it is held not to apply to (ires cau.sed by 
locomotive euiriues while running upon railroads, the estate of 
the railroad company. Nor are railroad companies relieved 
from responsibility for fires occasioned by negligence iiiojKi- 
ating their roads ; and if (ires arc shown to have l)cen caused 
by railway engines upon the road, the burden of showing that 
it was not the result of negligence or the want of due care 
and skill is on the railroad company .^ 

38. In respect to the remedy which the reversioner has for 
waste done upon the premises, it has already been stated that 
the common law provided an action only in the cases of dower 
and curtesy, and that it was by the statutes of Marlbridgc 
and (Gloucester that the action of waste was extended to ten- 
ants for life and years by grant or demise.^ 

30. And it is still competent for lessors, if they see fit, to 
grant leases exempting tenants from responsibility for waste, 
or, as it is commonly expressed, "without impeachment of 
waste." IJut unless a clause to this efTect is inserted, tenants 
for life or years are rcsjionsible for waste done or i>ermitted 
upon the demised premises.'* 

> Sinitli, IjiiuI. & T. Am. cd. 199, n. ; 1 Hreonl. Cruise, 133, n. ; Bamanl v. 
Toor, 21 Pick. 378 ; JIaull v. Wilson, 2 Hnrringt. 443 ; Clark r. Foot, 8 Johus. 
4-21 ; 4 Kent, Com. 82 ; Kev. Stat, of Delaware, 1S52, c. 88, § 6 ; Nixon, Dig. 
N. J. Ijiws, 1835, p. 868, § 8. But it is now held, notwithstamling the remarks 
of Denio, .1., in Althorf v. Wolf.-, 22 N. Y. 366, that the statuU- of 6 Anne, c. 31, 
niodifuil I'j- that of 14 Geo. III. c. 78, has become a jMirt of the common law of 
New York. Lansing r. Stone, 37 Barb. 15. 

2 Spaiiltling V. Chicago & N. K. K., 30 Wise 110. Sec also 8 Am. Law Kev. 
146. 

» 2 Bl. Com. 283 ; Co. 2d Inst. 299 ; Chipman v. Emeric, 3 Cal. 273. 

* 2 Bl. ConL 283. 



158 LAW OF REAL PROPERTY. [BOOK I. 

40. At common law there were two remedies for waste, one 
by a writ of prohibition, where it had been threatened, the 
other by a writ of waste for waste actually done, in which the 
tenant was obliged to pay the value of the waste, and a keeper 
was appointed to prevent future waste. And this action still 
lay against the original tenant in dower or curtesy, although 
he or she might have assigned over the estate. Such action 
would not lie against the assignee even for waste done after 
the assignment.! 

41. But no one could maintain it but he who had an imme- 
diate estate of inheritance upon the determination of the 
estate in dower or curtesy without any interposing vested 

freehold.^ 
[* 118] *42. By the statute of Marlbridge, the actual dam- 
ages sustained by the reversioner were recovered in an 
action of waste. That of Gloucester gave treble damages, 
and, in addition thereto, the reversioner recovered the thing 
wasted, though it was not always easy to determine how far 
such forfeiture extended, and what part of the premises it 
embraced. Thus, if it were done sjmrsim, through a wood, the 
whole lot was forfeit. So if in several rooms in a house, the 
whole house. But if in only a part of the wood, or a single 
room in the house, which was or might easily bo separated 
from the rest, that part only of the thing wasted was held 
forfeited.^ 

43. And if the tenant repairs what would be held to be 
waste before the action is commenced, no action can be main- 
tained therefor.^ 

44. The action of waste depends upon privity between the 
parties, so that if the reversioner grant away his reversion 
after waste done, no action in this form will lie, and the 
same would be the effect if the reversioner had died and 
it had descended to his heirs. So if, after committing 
waste, the tenant for life died, no action lay against his 
executors.^ 



1 Co. 2d Inst. 300. 2 Com. Dig. "Waste," c. 2; Co. Lit. 218 b, n. 122. 

8 Co. 2d Inst. 299 ; Id. 303 ; 2 Bl. Com. 283. 

* Co. Lit. 53 a ; Jackson v. Andrew, 18 Johns. 431. ^ Co. Lit. 53 b. 



CU. V. § 4.] ESTATKS KOU LIFK. l-'H 

4o. In one case a witlou- had assiLrncfl her interest and the 
reversioner had assigned his. Her assipiee eonnnitt».d waste. 
It was hehl that the asKi^ieo of the reversion conld n<>t have 
waste or an aetion on the ease in the natnre of waste against 
her, beeausc of tlie want of privity between them.* 

4G. Bnt, in sueh a ease, the heir of a reversioner might 
have waste, or case in the natnre of waste, again>t her after 
the assignment of her estate. So might the assignee of the 
heir of the reversioner against the a.ssignee of the life estate. 
In the first of these ca.ses there was a privity of aetion at com- 
mon hiw ; in the other there was a privity of estate. But 
between the assignee of the reversion of the life e.s- 
tatc and the tenant in * dower then; is no privity at ['HO] 
all. And the same is true in respect to tenants by 
curtesy.- * 

47. In several of the States the diUlculties as to the forms 
and i)arties to the aetion of waste, arising from the teehnieal 
rules of the common law, have been obviated by statute, in 
some cases giving the heir of the reversioner an aetion for 
waste done in the lifetime of the ancestor.^ In others, ac- 
tions for waste done survive against the executors, Are., of the 
tenant.* 

48. And it would seem that an action upon the case in the 

• Note. — This apparent solecism of creating a privity in estate between the 
grnnti'cs of two {H-rsons wlio hatl ori^uully no privity in estate between them- 
selves, as alwve stjited, between the a.ssi^nee of the heir of a reversioner an<l the 
assignee of a ilowress, is to be ascribetl to the statute of Gloucester, and is not 
the creature of the common law, "so as," in the words of Coke, "in this ]>oint 
our act (the statute of Gloucester) is introductory of a new law." '2 Inst. 301 ; 
Park, Dower, 359 ; Com. Dig. " Waste," c. 4 ; Co. Lit. 54 a. 

» Foot V. Dickinson, 2 Met. 611. "Privity" is defined to be the mutual or 
successive relationship to the same rights of property. 1 Grccnl. Ev. §§ 1S9, 523. 

2 Bates P. Shraeder, 13 .Johns. 260 ; Walker's Case, 3 Rep. 23 ; Foot ». Dick- 
inarm, 2 Met. 611; Co. 2d Inst. 301. 

' Miis»ichu.vUs, Pub. .SUt. c. 179, § 1 ; ifniru. Rev. Stat 1871, c. 95; XfW 
York, 2 Stat- at I^rge, 34.'); U'i.iconsin, Rev. Stat. 1858, c. 143, § 4 : Michigan, 
Comp.Sut 1857, c. 136, § 4 ; Lnca, Co.le, 1873, ]>. 533 ; Mutaouri, Wagner, Stat. 
884 ; Delatcare, Rev. Cwle, 1852, c. 88. § 5 ; .Veir Jt*-!/, Nixon's Dig. 90S; A'rn- 
tucly. Gen. St. 1873, p. 609. 

♦ Michigan, R.-v. Stat. pt. 3, tit. 3. c. ♦!, § (1 : Main.-. Hi v. ."^Lit. l>:i, c. »5, 
S i ; M<iM(ichu3eUs, Pub. Stat. c. 179, § 5. 



160 LAW OF REAL PEOPERTY. [BOOK I. 

nature of waste, for waste actually done, is a common-law 
remedy, which any one having a reversionary interest may 
maintain to recover the actual damages done, against any one 
who does the injury, whether lessee or stranger.^ In Maine, 
a reversioner may have waste to recover the place wasted and 
damages, or case in the nature of waste, and recover damages, 
but not both.2 

49. Though, as has been seen, the interposition of a free- 
hold in remainder between the estate of the tenant commit- 
ting waste, and the remainder or reversion in fee, would pre- 
vent the owner of the latter from maintaining waste as the 
law stood, yet he is not without right or remedy in respect 
to timber cut upon the premises. The property in that is 
considered as being in him, and he may seize it, or bring 
trover for its conversion, or replevy it, or bring trespass de 
bonis for the taking of it. Nor does it matter whether the 
timber is cut by a stranger or by the tenant himself, since 
the tenant cannot convey any interest in it when severed.^ 
If a tenant for life cut timber and sell it, he is thereby a 
wrongdoer, and cannot claim the interest upon such sale, on 
the ground that it was a part of the income of the estate. 
The reversioner in such case may. have trover for the conver- 
sion of the timber, or an action for money had and received, 
if the tenant shall have sold it, which action must be brought 
within six years, or be barred by the Statute of Limitations.* 
But if the trees are cut by a stranger, both the tenant and 
reversioner may have actions therefor, — trespass by the ten- 
ant, and case by the reversioner. The trees, however, when 
severed from the freehold, become the absolute and sole prop- 
erty of the reversioner, and trespass will lie in his favor 

1 Chase v. Hazelton, 7 N. H. 171, 175. And such action by lessor against 
lessee is not affected by a subsequent conveyance of the reversion to the latter. 
Dickinson v. Mayor, 48 Md. 583. In Iowa, owner of land may have tresjMss for 
acts of permanent injury done to it while in possession of a tenant, the statute 
having done away the distinction between trespass and case. Brown v. Bridges, 
31 Iowa, 138, 145. 

2 Stetson V. Day, 51 Me. 434. 

8 Lewis Bowles's Case, 11 Kep. 82 ; Berry v. Heard, Cro. Car. 242 ; Richard- 
son V. York, 14 Me. 216 ; Bulkleyu. Dolbeare, 7 Conn. 232 ; Mooers v. "Wait, 3 
Wend. 104. 

* Seagram v. Knight, L. li. 2 Ch. App. 628 ; Jones v. Hoar, 5 Pick. 285. 



CIl. V. § I.] ESTATKS FOR LIFP:. It'.l 

against any one who ri-niovrs thcni, oven thoii<:li it he llic 
tenant himself, as the j)n)j)erty in ehattels carries with it 
possession as against a wrongd(jer.' Nor wouhl the tenant 
for life have any better rights in this respret, though the 
trees cut had grown upon what was pasture-land when he 
took possession, or the natural growth ol" wno<I up«»n thr 
land, before the determination of the life estate, woidd be- 
come e(puil in value to the trees which he had cut. Nor 
could he set off against the reversioner's claim for damages, 
what he had jtaid to procure firewood from the same.^ This 
principle applies not only to the timber cut, but to materials 
of buildings severed from the inheritance, and the produce of 
mines wrongfully severed.^ 

*50. But if tenant for life has the next existing [*1:2(J] 
estate of inheritance, subject to intermediate contin- 
gent remainders in tail, a court of chancery would restrain his 
cutting timber, otherwise he would have an inducement to 
cut to the injury of the remainder-man, as he would Ijc en- 
titled to the timber, his bt-ing tlie only existing estate of 
inheritance.* No one, however, whose interest is that of a 
contingent remainder, or executory devise, can maintain an 
action at law against a tenant for life, for committing waste 
upon the premises.^ 

61. As has been stated above, leases arc sometimes made 
with provisions exempting the tenant from impeachment for 
waste. Such tenant, whether for life or years, may open new 
mines, fell timber, and claim as his own that which has been 
blown down, though he has no property in the timber while 
standing, nor can he sell it to another to cut after his death, 
nor delegate any right to a third party to do so. But if ho 
underlets, his tenant will have the same exemption as him- 
self.^ But such a tenant is not at liberty to commit wilful 
and malicious waste, and courts of chancery will interpose, 

1 I^ne V. Thompson, 48 N. H. 320. 

> I'hillips V. Allen, 7 Allen, 115 ; Clark v. Holdeu, 7 Gray. 8, 11, 
« Tii.l. Cns. 67; Uvcdall v. Uvedall, 2 RoUe, Abr. 119, pt. 3. 
« ■Williams r. Bolton, 3 P. Wins. 26S, n. 
» Hunt I-. Hall. 37 Me. 363, 366. 

« 2 Bl. Com. 283, n.; I'yne v. Dor, 1 T. K. 55 ; Cholmeley r. Paxton, 3 Bing. 
207 ; 1 Cruise, Dig. 128 ; fuJ. Gas. 67 ; Bowles's Caae, 11 Rep. 83. 
VOL. I.— 11 



162 LAW OF REAL PROPERTY. [BOOK I. 

by injunction, to restrain its commission, or compel him to 
repair the waste, if actually committed.^ The custom of 
leasing in this way does not seem to have obtained in this 
country .2 

52. Among the persons who are liable for waste committed 
on lands in their occupation are parsons in respect to glebe 
lands, whether settled for life or years.^ 

53. The courts of the various States have held differently 
in respect to the extent to which the common law as to waste, 
or the statutes of Marlbridge and Gloucester, have been 
adopted in the different States. The tendency of late has 
been, both in England and this country, to do away with the 
severe remedies provided in tlie latter statute, and to substi- 
tute either a process in equity for restraining the 

[*121] commission of waste, or an action * on the case, in 
which the actual damages done to the inheritance 
may be recovered by the reversioner. Such now is the case 
by statute in England, where the action of waste is abolished 
by 3 & 4 Wm. IV. c. 27, § 36. And the action in this coun- 
try has gone very much into disuse in the States where it is 
recognized by the law.* 

54. Sullivan, in his treatise on land titles in Massachusetts, 
states that in the course of thirty years' practice he had never 
known an action of waste in that State to enforce a forfeiture 
of lands, though he had known actions to recover for the 
damage actually done.^ Previous to the act of 1783 there 
was no statute in that State which declared the estate of 
a widow forfeited for waste. By that statute such a for- 
feiture is provided for, but no mention is made of treble 
damages. It was, however, held that, except so far as modi- 
fied by the statute of the State, the statutes of Marl- 

1 Marker v. Marker, 4 Eng. L. & Eq. 95. This was done in the case of Lord 
Barnard, tenant of Raby Castle, who, from dislike of his son, the reversioner, 
strifjped the castle of its iron, lead, doors, &c. Vane v. Lord Barnard, 2 Yern. 738. 

2 4 Kent, Com. 78, n. 

8 Cargill V. Sewall, 19 Me. 288. See also Huntley v. Russell, 13 Q. B. 572, 
588 ; Tud. Cas. 65 ; 1 Cruise, Dig. 131. 

* Smith, Land. & T. 197, n.; Greene v. Cole, 2 Saund. 252, n. 7 ; McCuUough 
V. Irvine, 13 Penn. St. 438; 4 Kent, Com. 81; ^Vms. Real Prop. 24. 

6 3 Dane, Abr. 228. 



Cri. V. § 4.] ESTATF-S FOIl LIFE. 1«',3 

bridge ami rilouccster were a jtart of the common law <<{ 
Massachusott.s.^ 

55. And Judge Kent is inclined to believe that the aetion 
of waste, cither at common law or founded ujton the statutt- 
of (ibjueester, has been generally reeeived in the country as 
apjilicable to all kinds of tenants for life or years.- 

5«», Connecticut seems to liav*; been iin exception to the 
above projiosition, since it is there held that tenants for life, 
except ti^'uants in dower or by eurtesy, are n(jt inipeaehablf 
f(ir waste, though a reversioner may have an aetinii (in lh<' 
case in the nature of waste for an injury to the reversionary 
interest while in the possession of a tenant;'' 

57. In Maine it is held, that the statute of Gloucester never 
was a part of the common law of the State in respect 
to tenants *in dower, and an action of waste against [*122] 
such tenant cannot be sustained there, though an ac- 
tion on the case in the nature of wa.stc may be, unless it l»c 
for permissive waste."* And in deorgia, the law as to liability 
of dowress and the statute of CJlouccster as affecting dower 
lands, is the same as in Maine.'' * 

• Note. — The following are believed to he substantially the present statute 
laws of the States eiiunuTatoil, relating to waste coniinit ted by tenants for life, in 
(lower and by curtesy, namely : — MiVistidmsctta. If tenant in dower or by cur- 
tesy, for life or years, commit or sufler wa.stc, the person having the ne.vt imme- 
diate estate of inheritance may have wa.stc against the tenant, and recover the 
place wasted and the damages. The heir may sue for waste done in the time of 
the ancestor. The party injured may hare an action of tort in the nature of waste 
to recover the damages, and the remainder-man or reversioner may maintain it 
though there be an intervening estate for life, or though the remainder or rever- 
sion be for life or years, and the action may be prosecuted against the executors or 
administrators of the tenant, for waste committed by him. Mass. Pub. StJit. 1881, 

» Sackettr. Sackett, 8 Pick. 309 ; Stat. 1783, c. 40, § 3 ; 2 Am. Jur. 76. And 
the Puk Stat. c. 179, § 1, provides for a forfeiture of the place wasted, and actual 
damages in actions of waste against tenants by curtesy, dower, for life, or for years. 

* 4 Kent, Com. 79. Such, in addition to the States whereas in the • Note alwve 
it is given by statute, seems to be the case in North Carolina, Alabama, and 
Louisiana. 

» Moore v. Ellsworth, 3 Conn. 433 ; Randall r. Cleaveland, 6 Conn. 328. 

« Smith r. FollansWe, 13 Me. 273. But it is assumed by Parris, J., in Hasty r. 
Wheeler, 12 Me. 434, 438, that if an onlinar}- tenant for life or years commits 
waste, he forfeits the i>Iace wasted and treble damages. 

» Porker v. Chambliss, 12 Ga. 235 ; Woodward v. Gates, 38 Go. 205. 



164 LAW OF REAL PROPERTY. [bOOK I. 

[*123] *58. But from the fact that the action is so seldom 
brought, it is hardly worth while to occupy any more 

c. 179. — Maine. The law is the same as in Massachusetts as to maintaining the 
action of waste against the tenant, and recovering the place wasted and damages, 
and also an action on the case in the nature of waste, by one having a reversion 
with an intermediate estate, or a reversion for life or j^ears. Rev. Stat. 1883, c. 
95, §§ 1, 2, 3. — New York. If guardian, tenant by curtesy, in dower, for life or 
years, or the assigns of such tenant, commit waste, the reversioner may recover 
the place wasted and treble damages. 2 Stat, at Large, 345, 346. And in this 
respect the statute of New Jersey is the same. Rev. 1877, pp. 1235, 1236. — North 
Carolina. Has abolished the action of waste, but for what would be waste a 
judgment is rendered for damages, and if the injurj' to the estate in reversion shall 
be adjudged equal to the value of the tenant's estate or iinexpired term, or if it 
shall be done in malice, the plaintifl' shall have a judgment of forfeiture and evic- 
tion. Code, 1883, §§ 624, 629. ^Delaware. Tenants by curtesy, &c., are liable 
to actions for waste in which the plaintiff may recover the place wasted and treble 
damages. Laws, 1874, p. 537. — Missouri. If tenant for life or years commit 
waste, he is subject to an action to lose the thing wasted and to pay double the 
damages assessed, and is still liable in damages if he is in possession, though 
he may have aliened the premises. Rev. Stat. 1879, § 3107. — Virginia. If 
tenant, &c., commit waste, he is liable to any per.son injured, in damages ; and if 
wantonly done, he is liable to three times the amount assessed as damages. 
Code, 1873, p. 967. — Kentucky. The law is like that of Missouri, and rever- 
sioner in fee may sue, though there be an intervening estate for life or years. 
Gen. Stat. 1873, p. 607. — Kansas. The action of waste is abolished, and wrongs 
which were remediable by actions of waste are subjects of action as other wrongs. 
Comp. Laws, 1879, § 4225. — And in New York, if the tenant above mentioned let 
or grant his estate, and still retain possession of the same and commit waste, the re- 
versioner may maintain his action of waste against such tenant. 2 Stat, at Large, 
345, 346. And in this respect the law is the same in MicJiigan. Comp. Law, 
1871, § 6354 ; Wisconsin, Rev. Stat. 1878, § 3172 ; Delaware, Laws, 1874, 
p. 537 ; Ncio Jersey, Rev. 1877, p. 1236. — In Connecticut, it has been decided 
in Moore v. Ellsworth (3 Conn. 483), in conformity with the common law 
before the statute of Marlbridge, that tenants for life other than tenants in 
dower and by curtesy were not liable for waste. By statute (Gen. Stat. 1?75, 
p. 490), every person having no greater estate in lands than for years or life, 
created by the act of the parties, and not by act of law, who shall commit waste, is 
made liable to the party injured in an action on the case. The law of Minnesota 
is the same as to such tenants, tenants in dower and by curtesy, except that judg- 
ment for forfeiture and eviction and treble damages will only be rendered where 
the injury to the reversion is adjudged in the action to be equal to the value of 
the tenant's estate, or unexpired term, or to have been done in malice. Stat. 
1878, p. 820. So in Oregon, Code, 1862, § 334. —In Indiana, the action of waste 
is abolished, but the law is the same as to recovery for waste done as in Minnesota, 
except that only the actual damages are recovered. Rev. Stat. 1881, § 286. — In 
Iowa, the action may be brought by the reversioner, who may have an action of 
waste notwithstanding an intermediate estate for life or years, except that he re- 
covers three times the damages and a judgment of forfeiture and eviction, if the 



CH. V. § 4.] ESTATES FOR LIFE. 1 •'.."> 

spsic'c ill discussini^ 'the subji-ct, aiul it is only no- [•1-1] 
ccsaary to refer the reiuler to the case of (ifeeiie v. 

•Iniiia^'i's are t'ljual to two thirds of iho ilcfi'i»lttiil'« iiitcTi-jjl, lU-v. Code, 1880, p. 813. 
So in Jhikota, Ijjw.s 18t52, p. 14y. —In JUumU Jsla.ul, U-miiit for life coniiiiitting 
or suireriiig waste, forfeits tho pliu-u wusttil luul liuultlt- duinagia* to the |«'nMiii en- 
titled to the next esUiU* in reiuainder or reverHion. I'ub. Stat. 18S2, p. 040. — In 
Aeiv lluinpaliirt, tenants in dower iiro luude liublu in danio^ua for wa-ste, without 
any provision by statute for other tenants or forfeiture. Gen. Laws, 1878, c. 202, 
§ «. The court, in Chase v. Hazelton, 7 N. H. 171, waive the jwint whether the 
statutes of .Marlbridge anil (iloucester liave Ijcen ado|>tcd as a part of th<; cuninion 
law of New Hanipsliire. Hut tliey hold that ai-tioiis on tho ia.se in the nuture of 
waste, lie in all cjises where the revei-sionary interest of the plaintilf is injurtsl by 
acts of waste, wliether by tenant or stmnger. — Xcbraska. Widows are liable to 
the ne.xt of inlieritjince for all damages occasioned by waste committed or sulfered 
by her. Gen. StJit. 1873. — The statute law of Wrmmil is like that of New 
Hampshire. Uev. Law.s, 1880, § 2227. —So is that of MissLisippi. Kev. Co«le, 
1871, p. 255. —So is the law of Illinois, excejit that there is a forfeiture of the 
place as well as a judgment for dau)age.s. Uev. Stat 1874, p. 428. — In Ohio, 
though a tenant for life is liable for waste, the action of waste is abolished, and no 
one forfeits the place wasted, in an action for the waste done, except tenant in 
dower or curtesy, who forfeits the jdace wasted to the immediate remainder- 
man or rever-sioner. Walker. Am. Law, 277, 320, 329 ; Uev. Stat 1880, §§ 4177, 
4iy». — In Michigan, the action is always ou the cjise, and judgment may bo had 
for double damages against tenants by curtesy, in ilower, for life and years. 
Conip. Ijiw, 18.")7, c. 130, §§ 1, 5. — And the law in Wisconsin is the .same. Uev. 
Stat. 1878, c. 130. And any one who has tho reversion or remainder in fe«* or 
in tail, after an inter^•euing estate for life, as well as remainder-man or rever- 
sioner for life or years, may have an action on the cai>e in the nature of waste 
against tenant committing waste. Id. § 3175. — In Kcntuchj, an action of 
waste may be maintaine*! by any one who has the remainder or reversion in 
fee-simple after an intervening estate for life or years ; and also by one who has 
a remainder or reversion for life or years only, each recovering such damage as 
it shall appear he has sustained. Any jierson who may have waste may have an 
action on the case in the nature of waste to recover actual damages, or tn-Me 
danuiges if the injurj* be wantonly committed. Gen. .Stat. 1873, p. 007, § 3. — In 
California, the tenant who commits waste forfeits treltle damages, but not the 
place wastecL Harston Code, 1877, § 732 ; C'hipman v. Kmeric, 3 Cal. 273. — In 
Arizoiui, Comp. I>aws, 1877, § 2088 ; and Xcvndtt, Comp. Ijiws, 1873, § 1313, tenant 
for life committing waste is liable in treble damages. — In Wrst I'irfjinia, any 
tenant is liable for waste, and, if malicious, in treble damages. Uev. Stat. 1878, 
c. li»9, §§ 1, 4. — In Colorado, Gen. Laws, 1877, p. 591; and Trjtas, Uev. 
Stit. 1879, p. 193, the common-law action is recognized. In Pntiu*;/lvanin, 
Brightly's Purd. Dig. p. 55, § 12 ; p. 1465, § 2, and p. 1467, § 15, tho action ex- 
ists IS at common law, and ndief by injunction will also lie given. — In Tmnrxtte, 
the ri-medy and n-lief .seem the same as in Pennsylvania. Stat. 1871, §§ 2133, 
2134. — In Washington, treble damages are given, and if the waste is malicious 
or ei|ual to the value of the life tenant's estate, the place is forfeited. Code 1881, 
§ 601. 



166 LAW OF REAL PROPERTY. [BOOK L 

Cole, and the notes thereon in Saunders's Reports, in which 
he will find the subject of actions on the case in the nature 
of waste fully explained, as well as the cases in which thej 
will lie. Among other things it will be found that such an 
action may be brought by him in reversion for life or years, 
as well as in fee, and may be maintained for permissive as 
well as voluntary waste.^ So it may be brought against a 
tenant for years for permissive waste done upon the demised 

premises,^ 
[*125] *59. In the present state of the law, however, the 

most usual remedy resorted to by a reversioner against 
a tenant for life or years in respect to waste is by application 
to chancery to obtain an injunction restraining him from 
committing it. This power is incident to courts of chancery, 
and is conferred by statute upon other courts in some cases. 
It may be applied in many cases where the party seeking re- 
lief could not sustain an action of waste, as where an estate 
for life intervenes between the estate of the tenant and that of 
the estate of inheritance, in favor of the intermediate remain- 
Perhaps no more proper place may offer for noticing provisions for preventing 
■waste in special cases, other than tenancies for life or years. — In KetUuckij, a 
guardian is liable to his ward for wa.ste. Gen. Stat. 1873, p. 607. — In New York, 
if one commits acts of waste upon lands sold on execution, while the same are yet 
subject to redemption, he will be liable to an action of waste ; and the law is sub- 
stantially the same in Wisconsin. N. Y., 2 Stat, at Large, p. 347 ; Minn. Stat. 
1866, p. 492 ; Wis. Eev. Stat. 1858, c. 143, § 8. — In Maine and Massachusetts, if 
a tenant commit waste on lands during an action to recover the same, the party 
aggi'ieved may recover three times the amount of damages. Maine, Rev. Stat. 
1857, c. 95, § 8 ; Mass. Pub. Stat. 1881, c. 138, § 9. —Minnesota. If one coiq- 
mit waste on land sold on execution, while subject to redemption, the court will 
restrain it. Rev. Stat. 1866, p. 492. — In Delaware, there may be a writ of es- 
trepement, or injunction to prevent waste, pending an action of ejectment or an 
action of waste. Rev. Code, 1852, c. 88, § 10. — In FJiode Island, there may be a 
writ of esti-epement to stay waste. Gen. Stat. 1872, p. 524. — So in Pennsylvania. 
Brightly's Purd. Dig. 1466. — In other States there maybe an injunction for that 
purpose : as in Maine, Gen. Stat. 1871, p. 732 ; Massachusetts, Pub. Stat. 1881, 
c. 138, § 15 ; New Hampshire, Gen. Stat. 1867, c. 190, § 1. 

1 2 Saund. 252, and n. 7. Though it is said in broad terms, in the following 
cases, that case for waste will not lie for permissive waste. Countess of Shrews- 
bur}''s Case, 5 Rep. 13 ; Heme v. Bembow, 4 Taunt. 764; Gibson v. "Wells, 1 B. 
& P. N. R. 390. 

2 Moore v. Towushend, 33 N. J. 284. 



en. V. § 4.] f:states for life. 1«37 

dcr-man,ns \\v\\ as tho ivmaiiKlcr-nian in fee' Ami this rem- 
edy may l»e aiiplied, altliuu;;lj aiiotluT is provitlcil Ity Htatiit*-' 
So it may often he a]>|>lied where tenants hohl withuiit im- 
peaehmt-nt of waste, if they exneisc this power in an nnna- 
sonahh" anil unconseionahle manner,'' 

(JO. Xor will this remedy l)e fjranted except in cases of 
tcchnieal waste. It will not he in eases of mere trespass, and 
it must moreover he for an injury which will he irreparahle, 
ami not to he compensated in dama«.zes.* Ilut it will he 
jrranted if material w:iste is threatened, though the injury 
actually done he trilling.'' 

1)1. In one case the court lay down tho following rule as to 
ca.ses where courts of ecpiity will iiiteri)ose to pnivent injuries 
to real estate, — one whieh seems to he in conformity with 
tlie principles acted upon l>y courts in other States. If there 
is a privity of estate hetwcen the party applying for 
the injunction * and him who is doing or ahout to do [•120] 
the act, such as exists hetween tenant for life or years 
ami tht; reversioner, it is not necessary that the act shoidd 
work irreparahle injury to induce the court to grant it. Hut 
if the parties are strangers in res|)ect to the estate, or are 
claimants adverse to each other, the eourt will recpiire evidence 
that the injury threatened will i)e irreparahle, hefore they will 
interpose to restrain it hy injunction. And this, whether the 
act threatened he waste or trespass.*^ Nor will an injunction 
to stay waste he granted where the right is douhtful.' 

J JoiR-s P. Hill, 1 Moore, loO ; I^iu.vsjit'a Foiil.l. ¥ai. 3, u. ; Id. 52, n. ; Tracy 
V. Tmcy, 1 Vi-rn. 23 ; Molliiu-aux r. Po\v. H, 3 V ■Wins. 2»5S, n. F.; Kniii' v. Van- 
dcrburgli. 1 Johns. Cli. 11 ; Story, Kq. Jiir. § 013. Hut lidil, that r»'tnaindfr-mnn 
for life roiild not have a hill to enjoin the tenant of tho i)revio>i8 ciitatc. Mayo c. 
Foa.st.r. 2 McConl. t"h. 137. 

2 Harris r. Thoniaii, 1 Hen. & M. 18. drntra, Cutting r. Carter, 4 Hen. i .M. 
424 ; I'oindextcr V. Henderson, Walker, 176. 

* Kane r. Vanderburg]>, 1 .lohns. Ch. 11 ; 2 Rl. Com. 283 ; Tud. Coa. 68. CO. 

* Attaijuin p. Fish, 5 Met. 140 ; Atkins r. Chilnon, 7 Met 398 ; Poindextt-r r. 
Heiidcr8f>n, Walker, 176 ; Ix;ighton r. Uighton, 32 Me. 399. 

» Livingston r. Royiiolds. 26 Wend. 115; I^udon r. Warfiehl, 5 .1. .T. Manh. 
196 ; Rdgcrs r. Uodgers, 11 llarh. 595 ; White Water Canal r. lontogj-*, 2 Ind. 
469. 

* Georges Creok Co. v. Detmold, 1 Md. Ch. Dec. 371. Sec Atkins r. Chilaoo, 
7 Met. 398 ; I'oindexter p. Henderson, Walker, 176. 

^ Storm r. Manu, 4 John*. Ch. 21 ; Field p. Jackson, 2 Dick. 599. 



168 LAW OF REAL PROPERTY. [BOOK L 

62. It seems that, upon a bill for an injunction to stay 
waste, where waste has already been done, it is competent for 
the court of equity to require an account of the waste to be 
taken, and to give the party a compensation for the damages 
in order to avoid a multiplicity of actions, although the plain- 
tiff may have a remedy therefor by an action at the common 
law.i 

63. Courts of equity in England often authorize tenants to 
cut timber which would be injured by standing, and invest the 
proceeds for the benefit of those entitled to it.^ 

64. And in England, by statute 8 & 9 Vict. c. 56, provision 
is made for improving lands held by tenants by draining and 
the like, through the agency of the court of chancery .3 

1 Story, Eq. Jur. §§ 517, 518, 917 ; Tud. Cas. 68 ; Watson v. Hunter, 5 Johns. 
Ch. 169. 

2 Storj', Eq. Jur. § 919. And a similar power is delegated to courts in Massa- 
chusetts, Pub. Stat. c. 126, § 12 ; and ilaine, Rev. Stat. 1871, p. 784. 

3 Wms. Real Prop. 27. 



CU. VI.] 



ESTATES BY CURTSEY. 



1G9 



ciiai*ii:r VI. 

ESTATta BY Cl'UTF-SY. 



1. Estate di'liiied. 

2. Curtesy by eijuity. 
8. Origin of the esUite. 

4. Curtesy now generally disused. 

5. Curtesy in the United Stiites, 
6, 7. Keijuisites to give curtesy. 

8. Wliat is sullicient .seisin. 

9, 10. Curtesy in c^uitulile estates and money. 

11-13. Curtesy in determinable fees. 

14, 15. Curtesy in equitable estates settled on wife. 

16-18. Curtesy where there is a reversion after determiuatioD of wife's 

estate. 

19-21. Curtesy of determinable estates with remainder. 

22. Curtesy in case of joint tenancy. 

23. Curtesy a continuation of wife's estate. 
24-30. What seisin of wife ri'<iui.site. 

31. Possession of co-tenant sufliiient. 

32. Possession of wife's tenant for years. 
33-36. Curtesy in wife's reversion, in what coses. 
37, 38. Curtesy in what lies in grant 

39-41. S«'i.sin by tnistee does not give curtesy. 

41 a. Effect of conveyance by wife before marriage. 

42, 43. Merger of reversion antl life-estate, where it gives curtesy. 

43-46. Birth of living chiltl reijuisite. 

47. Curtesy initiate and consummate. 

48-50. Nature of the estate. 

51. Curtesy subject to the debts of the tenant. 

52. Effect of alienage. 

53, 54. How curtesy may be forfeited. 

55. Curtesy .subject to same duties, &c., as estates for life. 

56. No preliminary act in obtaining it. 

1. An estate by the curtesy, or, as it is more commonly 
called, by curtesy, is that to which a husband is entitled, uj»on 

the death of the wife, in the lands or tenements of 

which she was * seised in possession, in fee simple [•128] 

or in tail, during their coverture, provided they have 

had lawful issue born alive, which miirht have been capable of 



170 LAW OF REAL PROPERTY. [BOOK L 

inheriting the estate. It is a freehold estate for the term of 
his natural life.^ 

2. Equity, following the law, holds that where the wife is 
cestui que trust in fee simple or in tail, the husband is entitled 
to curtesy in the trust estate, in the same manner as in the 
legal estate.^ 

3. It has been much discussed by writers whether this 
estate was originally an institution of the English law, as stated 
by Littleton, § 35. Sir Martin Wright insists that it was 
known in Scotland, Ireland, Normandy, and to the ancient 
Almain laws ; while the " Mirror " ascribes the period of its 
introduction into England to the time of Henry I. ; and Wood- 
deson in his Lectures, and Christian in his Notes to Blackstone, 
consider it of English origin, and thence transferred into the 
laws of Scotland and Ireland, though it seems to be conceded 
that it takes its name from curtis, a court, rather than from 
any peculiar regard to husbands in the English law.^ Mr. Bar- 
rington says the word is clearly derived from the French word 
courtesie, and it is called curtesy of England, to distinguish it 
from a very similar right by the Norman law.* The writers 
all seem to agree that it is not of feudal origin, though by that 
law as soon as a son was born the father was admitted, in 
respect to the estate, as one of the 2)ares eurice, and did homage 
for the same alone, while prior to that, husband and wife did 
the homage together.^ Wright and Craig ascribe its origin to 

the civil law, in the time of Constantine.^ 
[*129] * 4. Whatever may have been its origin, it has been 

a well-known estate at the common law, with well- 
defined qualities and incidents, from a period as early probably 
as the reign of Henry I., if not before. Of late, however, by 
reason of the prevalence of marriage settlements in England, 
it has, practically, become infrequent there.'^ 

5. In this country it was adopted as a common-law estate. 

1 Lit. § 35 ; Co. Lit. 30a; 2 Bl. Com. 126 ; Adair v. Lott, 3 Hill, 182. 

2 Watts t;. Ball, 1 P. W^ms. 108 ; Co. Lit. 29 a, n. 165 ; Tud. Cas. 38. 

8 Wright, Ten. 192, 193 ; 2 Bl. Cora. 126, and n. In Erskine, Institutes, 
p. 380, it is said, that in Scotland, "the right of curtesy or cuiiality has been 
received by our most ancient customs." 

4 Stat. 440. 5 Wright, Ten. 193 ; 2 Bl. Com. 126, 127 

« Wright, Ten. 194. ^ Wms. Real Prop. 187. 



CIl. VI.] ESTATES DY CURTESY. 171 

It Still fxibts in its LH)nmi()n-la\v form hy express statute, (jr 
by statutory recopiition, in New Iluni|ishire, Vermont, Rhode 
Islanil, New Jersey, Delaware, Marylauil, West Vir^Muia, Pniii- 
sylvania, Nortii Carolina, Kentucky, Tennessee, and Nebraska.' 
In Connecticut, Vir«;inia, and ^Missouri it is recojrnized by the 
courts as an existing estate.^ In Orejron and Ohio curtesy is 
given, thouirh no issue be born alive.^ In Massachusetts it ex- 
ists as at connnon law, but is ajijtarently restricted in case of 
intestacy, if there are no issue.* It has been expressly abol- 
isheil in Illinois, Indiana, Iowa, Kansas, Mississijipi, Minne- 
sota, Dakota, Wyoming', Arizona, and Nevada,'' and dilVerent 
provisi«jns for the husband substituted, — as in lllint»is, where 
the husl)and is endowed of a life estate similar to dower at 
common law ;^ Imliana, where he receives a fee in one third 
of the wife's realty as heir ;" and in Kansas, where his share 
is one half of her estate in fee, sul>jeet, however, to her debts, 
and to any sale on execution;^ while in Arizona he receives 
one half of the property held in community by his wife and 
himself, and in Nevaila the whole.^ In other States, again, 

I N. H. GfU. L. 1878, c. 202, § 14, Vt Rev. L. 1880, § 2229 ; but not where 
wife lias issut- by a former husltami, wlio would take tlie catuU;. K. I. Tub. 
StaL 18S2, c. 1G(1, §.^ 20, r.3 ; c. 1S2, § 3. N. J. llcv. 1877, pp. 29S. 320. Del. 
Kev. Stftt. 1874. pj.. 515, .133. .Ml. Hev. Co.le, 1878. art. 4.1, § 2. W. Va. Hev. 
Stat. c. 70, § i:.. Va. Briglitly Punl. Dig. p. 10<»7 ; IVyor r. WotJ, 31 I'a. St. 
141:, 147. N. C. Ctxle, I8.s3, § 1S33. Ky. Oen. Stat. 1^73, c 52, art. 4, § 14. 
Tcnn. Stat. 1S71, § 2486 f. Neb. Gen. Sut. 1873, c. 17, §§ 2i}, 40. 

' 1 Greeiil. Cruise, 140, n. ; ^Vlcxander r. Warrance, 17 Mo. 228. 

• Ohio Kcv. Stat. 1880, § 4176 ; Oregon Gen. L. 1872, p. 588. In Ohio, more- 
over, the husband's curtesy does not extend to lands which his wife received from 
a former hu!>band, except by devise, if theie are issue to take it, 

* Mass. Pub. Sut, 1881, c. 124, § 1; but, § 3, a luiskind Ukes. in case of intes- 
tacy and want of ussue, the wife's realty in fee to the amount of $5,000 und curtesy 
only in the residue, if any, and the former provision is al.so subject to her debts, 
if there is no ivsue of the marriaj^e, tlu; husUmd now takes one half the lands for his 
life, whether tiie wife pnivides othenvise by her will or not. Stat. l!S85, e. 2.'i.'>, § 2. 

» 111. IJcv. Stat 1883, c. 41, S 1- Ind. Rev. Stat 1881. § 2482. Iowa, Rev. 
Code, 1880, § 2440. Kans. Comp. L. i:-«7f», § 2129. Miss. Rev. Co»le. 1880, 
§1170. Minn. L 1875, c. 40, §5. Dak. Rev. Co.le. 1877, p. 247. WyomingComp. 
L. 1876. c. 42, § 1. Arizona Comp. L, 1877, § 1976. Nov. Comp. I^ 1873, § 157. 

• 111. Rev. Sut 1883, c. 41, § 1 ; Henson v. Moore, 104 111. 403. 

T Ind. Rev. Sut 1881, { 2483. If the property exceeds $10,000, he has but 
one fourth, and if more than $20,000, but one fifth. lb. 

* Kans. ( omp. L. 1879, §§ 2109, 2118, 2129. And if there are no issue, he 
Ukes the whole esUte. § 2121. 

» Ncv. Comp. L. 1873, § 160 ; Arizona Comp. L. 1877, S 19"7. 



172 LAW OF REAL PROPEETY. [BOOK L 

curtesy is superseded by the adoption of statutory provisions 
inconsistent therewith. Thus in Louisiana, California, and 
Texas by the community of property in which a common stock 
is made of all acquisitions by either husband or wife during mar- 
riage ; and in the latter State a further provision is made in his 
favor, in case of intestacy .^ So in Florida and Georgia, where 
the husband takes a child's share, and the whole if there are 
no children.^ In Michigan the unrestricted power of a mar- 
ried woman to convey inter vivos and dispose by will of all her 
realty has been held to abolish curtesy ; ^ and similar pro- 
visions exist in South Carolina, Alabama, Arkansas, and Mon- 
tana.^ So in New York it seems to be competent for the 
wife, by her separate conveyance in her lifetime, to defeat her 
husband's right to curtesy.^ In Maine and Wisconsin, though 
curtesy is given by statute, yet in the former State it is lim- 
ited to a life interest in one third of the wife's realty, and then 
only if she died solvent ; and in the latter only in lands of 
which she died seised, and which were not otherwise disposed 
of by her will.^ 

6. The definition before given suggests the essential requi- 
sites to entitle a husband to curtesy : (1) marriage ; (2) seisin 
of wife during coverture ; (3) birth of a child alive during the 
life of the wife ; (4) death of the wife. 

7. In considering these in detail, the marriage must be a 

la'wful one, though if it be a voidable one it will give 
[*130] curtesy, * unless it is actually avoided during the life 
of the wife. It cannot be declared void afterwards.'' 

8. In respect to the seisin of the wife, it must, in general 

1 Stat. 1850, c. 147, § 10. Wood, Calif. Dig. 488, § 10. Tex. Rev. Stat. 1879, 
§ 1653. If there are children, the survivor takes one half ; if none, tlie whole. 
And see Portis v. Parker, 22 Tex. 699. 

2 Fla. Dig. 1881, p. 471, § 12 ; p. 757, § 16. Ga. Code, 1873, § 1761, where the 
wife has also the power to dispose by will of all her separate earnings ; § 2410, 

3 Tong V. Marvin, 15 Mich. 60, 73 ; Mich. Comp. L. 1871, § 4300. 

* So. Car. Gen. Stat. 1882, § 2035. Ala. Code, 1876, § 2713 ; but if she dies 
intestate, her husband is entitled to use of her realty for life, § 2714. Ark. Dig. 
Stat. 1874 ; Montana Rev. Stat. 1879, p. 272. 

6 4 N. Y. Stat, at Large, 513 ; Thurber ■;;. Townsend, 22 N. Y. 517. 

6 Me. Rev. Stat. 1883, c. 103, § 15 ; but if she dies intestate and childless and 
her estate is solvent, the husband receives one half for his life. lb. Wise. Rev. 
Stat. 1878, §§ 2180, 2277. ^ 2 Burns, Eccl. Law, 501. 



Cri. VI.] ESTATES DT CURTESY. 173 

terms, 1)0 of an estate of inheritance. liut tliis may be either 
a Icpal or an equitable one. In pvin^ form and effect to 
estates under the e(|uitalilo view of the Statute of Tsch, eourts 
of equity intended to follow, and in most respects have fol- 
lowed, the law, in regard to the nature and incidents of stieh 
estates. Amontr these was the right of curtesy, and hushands 
of cestuis ijuc trust were allowed to take curtesy in the trust 
estates, if they were estates of inheritance, of which the wife 
had in equity what answered to a seisin at law of legal estates 
in possession.^ And the receipt of the rents and {jrofits by 
the wife as such crstui que trust during coverture, is ordinarily 
suflicient seisin in e([uity to give a husband curtesy.^ IJut it 
does not seem to be sulTieient seisin of a trust estate, to give 
husband curtesy thereof, that the wife had the rents and 
profits of the estate, if it was by the terms of the trust to her 
own sej)arate use, her seisin in such case not enuring to the 
benefit of the hu.sband.^ And where the estate was conveyed 
to a wife to her sole and separate use and dispo.sal, and free 
and clear of any control of her husband, without being subject 
to the debts, liabilities, or engagements of the husband, it was 
held that a devise of her estate defeated her husl)and's right 
of curtesy.^ 

9. Originally, curtesy could not l>e claim<Ml of a use which 
the wife had as cestui que iise. But now the right is extended 
to equities of redemption, contingent uses, and moneys directed 
to be laid out in lands for the l)enefit of the wife. Equity in 
such cases treats the money as land.^ Thus, where an ex- 
ecutor sold the land of a female heir under such circumstances 
that she might confirm the sale and take the money, or avoid 

1 Koper, Hus. & Wife, 18, 20; Watts v. Ball, 1 P. Wms. 109; Robison r. 
Codman, 1 Sumn. 121 ; Morgan v. Morgan, 5 MaiM. 408 ; Hiarlo v. Green- 
bank, 3 Atk. 695, 717 ; Sweetapple v. Bindon, 2 Veni. 537, u. 3 ; Davis v. Maaon, 
1 Pet. 503. 

a Morgan v. Morgan, 5 MaiM. 408 ; 4 Kent, Com. 31 ; Tud. Cos. 39. 

• Hearlc r. Greenbank, 3 Atk. 717 ; Sweetapple r. Bindon, 2 Veni. 537, n. 

* Pool f. Blakie, 53 111. 495 ; Stokos v. McKibbin, 13 Penn. St. 267. See 
Bennett r. Davis, 2 P. Wms. 316. But in Tennessee the nile is different, and 
express words are necessary to cut off the husband's curtesy. Carter r. Dale, 8 
Lea, 710. 

' Davis V. Mason, 1 Pet. 503 ; Sweetapple r. Bindon, 2 Vern. 536 ; Fletcher 
P. Aahburuer, 1 Bro. C. C. 497, 499 ; 3 Prest Abe. 381. 



174 LAW OF REAL PROPERTY. [BOOK I. 

it and take the land, and she preferred the money, her hus- 
band was held entitled to curtesy out of the money, she hav- 
ing died before it was paid over.^ So, where, in order 
[*131] to make partition, the * share of a wife, tenant in 
common, was sold, the husband had curtesy in the 
money.2 

10. In many of the States curtesy is given, by statute, in 
equitable estates of which the wife was seised, and it seems to 
be a rule recognized in most if not in all the States.^ Thus in 
Rhode Island an estate was conveyed to trustees to the sole . 
use of a married woman during life, to be conveyed to her 
heirs upon her failure to appoint as to the same, and she died 
without having made an appointment. Her husband was held 
entitled to curtesy.* So where the conveyance was to J S, 
habendum to him and his heirs to the only use, benefit, and 
behoof of J D, a married woman, it was held to be a legal 
estate executed in J D, and her husband had a right to cur- 
tesy therein.^ In North Carolina, a husband has curtesy in a 
trust, or an estate in equity, of the wife, but this does not ex- 
tend to a mere right in equity to have an estate.^ 

11. To recur to the proposition that the estate of the wife 
must be one of inheritance, no question could arise in respect 
to estates in fee-simple absolute, nor, ordinarily, as to estates 
tail. But questions of great subtlety and difficulty have arisen 
in respect to determinable estates, whether upon their deter- 
mining the husband's right of curtesy is defeated or not. In 
an earlier part of the work it became necessary to speak of 
estates in fee-simple determinable, as well as in tail, of estates 
defeasible by a breach of condition, and of the determination 

1 Houghton V. Hapgood, 13 Pick. 154. 

2 Clepper v. Livergood, 5 Watts, 113 ; Forbes v. Smith, 5 Ired. Eq. 369. So 
where the devise was to a daughter and her heirs, with power of sale in the ex- 
ecutor, and he sold, the husband had curtesy in the money. Duuscomb v, 
Dunscomb, 1 Johns. Ch. 508. 

8 1 Greenl. Cruise, 147, n., mentions Alabama, Kentucky, Maryland, Missis- 
sippi, and Virginia. So Kansas, Comp. L. 1879, §§ 2109, 2129. Alexander v. 
Warrance, 17 Mo. 228 ; Eobison v. Codman, 1 Sumn. 121 ; Houghton v. Hap- 
good, 13 Pick. 154. See 1 Bro. C. C. 503, note, Am. ed., for a collection of 
American cases. Rawlingsu. Adams, 7 Md. 26, 54 ; Dubs v. Dubs, 31 Penn. St. 149. 

* Tilliiighast v. Coggeshall, 7 R. I. 383. Cf. Robie v. Chapman, 59 N. H. 41. 

6 ^'ightiIlgale v. Hiddeji, 7 R. L 115. ^ Sentill v. Robesou, 2 Joues, Eq. 510. 



en. VI.] E8TATE.S BY CURTE.ST. 11'} 

of estates by the lmj)|ieiiintr of some event which, nt th<*ir 
crejitioii, was inadf to limit their duration. In applyintr the 
principles of these estates to that of the wife, in ordiT to de- 
termine whether the husband has rit'ht of curtesy therein, it 
lias been settled, in resju'ct to estates tail, for instance, that, 
though the issue in tail fail by death of the child in the wife's 
lifetime, whereby her estate at her death is at an end, the 
husband takes curtesy, it brinf a ritdit incident to such an 
estate.' 

12. So, wluMv the devise was to a dauirhter and her heirs, 
and if .she died without issue, the whole estate was to be sold 
and the proceeds paid to her brothers and sisters, and she 
married and had a child, who died, and then she died with- 
out issue, her husband had curtesy.'^ 

13. It will be observed in the above-cited cases that 

the wife * had a determinable fee, that there was an [•132] 
executory devise over (the nature of which will be 
more fully explained hereafter) in case of its determining, 
and, what may perhaps be unimportant, that the estate was 
only determined at the moment of her death, her estate u[> to 
that time havinir Ijeen a fee with its ordinary incidents, and 
her death the natural termination of her estate. But if the 
estate of the wife had l>een determined by the ])reach of some 
condition expressed in the deed thereof, for which the grantor 
or his heirs had entered, this entry would so far retroact, that 
the grantor would be in of his original estate, and all inter- 
mediate estates and rights would have been defeated, includ- 
ing, of course, the husband's curtesy. The estate would be 
defeated ab initio. So if the seisin of the wife were tortious, 
as gained by disseisin, or under a defective title, and had been 
defeated l)y an eviction under a judgment upon a title para- 
mount, the same consequence would follow. So where a 
daughter becomes, during coverture, seised as heir to her 
father, and the mother has her dower set out of the same 
lands, it defeats the seisin of the daughter in the lands so set 

» Taine's Case, 8 Rep. 34 ; post, vol. 2, •374. 

a Huchnnan v. Shefler, 2 Vt-atos, 374 ; Uny r. Mnycr, 8 WntU, 2f'3 : Tslin- 
ferro r. Burwell, 4 Call, 321. The same principle is kid down iu But-kwortL r. 
Thirkell, 3 li. & P. 652, n. 



176 LAW OF REAL PROPERTY. [BOOK L 

out, and with it her husband's curtesy, since the widow's 
seisin, when consummated by the setting out of her dower, is 
considered as anterior to that of the daughter as heir, and of 
course converts the latter into that of a reversion. But if the 
widow die in the lifetime of the daughter and her husband, 
the latter will have curtesy by the actual seisin thereby con- 
ferred upon his wife.^ 

14. A principle analogous to that stated above is applied 
in respect to curtesy in equitable estates. Thus, where the 
devise was to the separate use of the daughter, to be disposed 
of as she should see fit, the trust to cease on the death of the 
husband, it was held that she had such an estate of inherit- 
ance as entitled her husband to curtesy .^ And the same was 
held, where, by a marriage settlement, the estate was con- 
veyed to trustees for the sole and separate use of the wife, 

with power to appoint, and she made no appointment.^ 
[*133] There was in * both these cases a fee in the wife, and 

though, while living, the husband was excluded from 
controlling her estate, there was nothing in the terms of the 
devise or settlement expressly excluding him from the ordi- 
nary right of curtesy. It was accordingly held that where 
land was given in trust for the wife and her heirs for her 
separate use, without power of alienation by her or her hus- 
band, he was entitled to curtesy. The effect of the statute in 
Pennsylvania being to make no distinction between legal and 
equitable estates in the matter of curtesy as well as dower, 
the law of that State seems to coincide with that of Massachu- 
setts, which gives a husband curtesy in lands of which his wife 
is seised to her sole and separate use as an inheritance.* 

15. But though it is not competent at common law, in the 
grant to a woman of an estate of inheritance, to exclude her 
husband from his right of curtesy,^ a like rule does not pre- 
vail in equity, where an estate may be so limited as to give 

1 1 Roper, Hus. & Wife, 36 ; Id. 42, 43 ; Co. Lit. 241, Butler's note, 170. 

2 Payne v. Payne, 11 B. ilon. 138 ; Clancy, Rights of Worn. 193, 194. 

8 Morgan v. Morgan, 5 Madd. 408 ; Clancy, Rights of Worn. 193, 194. But 
see Cochran v. O'Hem, 4 Watts & S. 95. See also Clark v. Clark, 24 Barb. 582. 
* Dubs V. Dubs, 31 Penn. St. 149, 155 ; Mass. Pub. Stat. c. 124, § 1, 
' Mildmay's Case, 6 Rep. 41 ; Clancy, Rights of Worn. 191 ; Mullany v. Mul- 
lany, 4 N. J. Eq. 16. 



CU. VI.] ESTATES BY CUUTHSY. 177 

tho wile tlie inlu'rituncc and (Icprivc the husband of (Mirtosy if 
the intent of the devisor or settlor Ije express.' Thus in Ben- 
net V. Pavis, the testator devised hinds to his dau>;l»ter and 
her lieirs, to her soh' and separate use, tlirectini; that her hus- 
band sht)uhl not he tenant hy eurte'sy in ca«e he survived, hut 
that ujMjn her death the hinds shcjuld po to her heirs ; the 
court, in order to carry out the intent of tlie testator, liehl the 
husband to be trustee for the lieirs of the wife, whereby, 
thouirh he took the Icfral estate of curtesy for life, the heirs 
had the beneficial interest.* And the husband would i)e 
ccjually excluded from such equitable estate of his wife, 
though it hud been created l>y himself.'' 

16. There is no dilhculty in apjilyinj^ the rule as to curtesy, 
where the estate in the wife is the <)nly one created i)y the 
devisor or settlor, and that is so defeated by condition or 
otherwise, as to be a.L'aiu in the oriirinal owner's hands, in the 
same manner as if it had never pa.sseil to the wife. l>ut where 
the grantor or devisor parts with all his estate, in the first 
place, to the wife, with a limitation over upon the happening 
of some event which of itself is to determine her estate before 
its natural expiration, and pass it at once to another, (lucstioiis 
of great subtlety have arisen which arc discussed with much 
acuteness i)y courts and legal writers. The (piestion 
briefly stated is. In •what cases may curtesy be [*1''^4] 
claimed in determinable fees of tho wife ? 

17. Mr. Iloj)er's illustration of an estate of inheritance do- 
termining by its natural expiration is, an estate in fee tail in 
a wife who dies without issue or heirs. An estate, on the 
other hand, determinable on a particular event, indej>cndent 
of its natural ex|)iration, he illustrates by an estate in fee- 
simple or fee tail in tho wife, " whilst or so long a.s A has 
heirs of his body, or until IJ attains twenty -one, and then to 
B in fee." * In these last instances, if A die without issue, or 

» Cwhran v. O'Hcni. 4 Wntta & S. 95 ; Hcarlo r. GnHiiljonk, 3 Alk. 6I>5, 
716; Morgan r. MorKun. 5 Ma.ld. 40S ; Stokes r. M'Kibhin, 13 IVnn. St. 267 ; 
Bennct v. Davb, 2 1". Wtiw. 316 ; TuJ. Cos, 39. See tdao Rigler r. Cloud. 14 
Penu. St. 316. 

« IViiiict V. DaviH, 2 P. Wins. 316. Sec also Clark c. CluiV, 24 liark iS2. 

• HiRl.r r. Cloud, 14 P.nn. St. 361. 

• 1 Kopor, Hu». & Wife, 87-39. 

vou 1.-12 



178 LAW OP REAL PROPERTY. [BOOK I. 

B attain twenty-one, the husband's right of curtesy will be 
defeated, with the estate out of which it was to be derived.^ 
These are evidently cases of simple limitation of estates by 
events, upon the happening of which the estate limited is de- 
termined, and completely at an end with all its incidents, as 
if it had been measured by the lapse of a certain number of 
years, months, or days. 

18. And it is laid down as a general proposition that " any 
circumstance which would have defeated or determined the 
estate of the wife, if living, will, of course, put an end to the 
estate by curtesy." ^ 

19. But the examples already given show that curtesy may 
be had in many cases where the estate of inheritance granted 
in the first instance to the wife has determined and passed 
over to another by force of its original limitation. Such a 
limitation as is here referred to is what is known as a condi- 
tional one, — a limitation not known to the common law, but 
originating in the doctrine of shifting uses or executory de- 
vises. It implies the creation of two estates by one and the 
same deed or de^dse, in such a manner that the first will, upon 
the happening of a certain contingent event, be defeated and 
brought to an end before its natural determination, and the 
second estate thereupon, at once, and without any act or thing 
done to give it effect, come in and take the place of the first 
estate. The first of these estates may be a fee, and the event 
that determines it and passes it over to the third party may 
be the dying of the first taker without issue, or before a cer- 
tain age, or both ; and the question then has been, whether 
the husband or wife of such first taker is thereby defeated of 
what till that event had been a right incident to an existing 
estate, or might enjoy it, although as to the deceased the es- 
tate was determined by death. Lord Mansfield, in one case, 
was of opinion that the husband in such a case was entitled 
to curtesy ; ^ and Best, C. J., was of a like opinion in a case of 
dower.* But the doctrine does not find favor with Mr. Park 
in his work on Dower ; ^ and the opinion of Lord Mansfield is 

1 Id. 39. 2 1 Atk. Conv. 255. 

8 Buckworth v. Thirkell, 3 B. & P. 652, n. 

4 Moody V. King, 2 Bing. 447. * Park, Dower, 177-183. 



cii. VI.] estatf::s uy curtesy. 179 

iinj»UL'"n<Ml In- Mr. Sii'j<l<Mi.' And :it mio timo it wus lidd in 
Nt'w ^^•rk that such a (lotoriuinati»m of an cstato defcut.s tho 
rijrlit hoth r)f (lowcr^aiui curtosv ."' And the En^Mi«h court 
h(dd, in a case wIutc a convcyanct; was uiado to «nch imcs a« 
C I) nhonld appoint, and in default of, and until appointment, 
to the use of I) in fee, who was married, that hy the 
execution of tlii.s appointment in the lifetime of C I>, hi.s 
estate was defeated, and with it iiis wife's ri^rht of dower.^ 
Mr. Hurton alludes to the circumstance, that in one clarts of 
the Knsrlifth cases above cited the estate was defeated hy tlie 
death of tlie first taker, and in tlic other hy the act of the first 
taker in his lifetime. Hut a|»parently concludinir that tiiis mix 
hardly reconcile these decisions, hi* adds: "Such and so suhtle 
apjM'ars the distinction, on the Ln-ouiul of |»ositiv(! law, hrtwc<n 
these decisions." * (Jihson, (.'. .!., undertakes t*; exj)lain away 
these difficulties, in the case of lOvans v. Evans, although it is 
nearly identical with one cited from the New York n'ports lie- 
low, in which the court came to an opposite conclusion, and 
he seems to overlook the fact that there can be no limitation 
of a fee ujion a fee at common law, and that the questions, in 
most of the cases, do not arise under limitations at common 
law. 

20. The case of Evans v. Evans, thouprh one of dower, was 
decided upon analogy to cases of curtesy, and the reasonini^ 
of the court applies to the one as well as to the other. The 
devise in that case was to A and B, their heirs and assigns ; 
but should either die without having lawful issue living at his 
(her) death, then the estate of one so dyin'j: to vest in the 
survivor and heirs forever. It was held that ujM»n A dying 
without living issue, his widow (her hus])and) was entitled to 
dower (curtesy) out of the estate.*^ The court — CJihson. Ch. 
.1. — declared that none of the text-writers, except Mr. Pres- 
ton, had suggested the true solution of the difficulty in such 

* SugJ. Powers, vol. 2, p. 31. 

« Vt'ller r. W.-H.-r, 28 Ikrh. 58S, overrulo.l 54 N. Y. 235. 

' HnttieM v. .Sta-di-n, 42 Hurh. 622, overruled 54 N*. Y. 280. See post, •ISS. 

* \U\ r. PiiiiR. 5 H. & A. 561. 

* Burton, lU'fll Prop. 145. See pout, •213-»216, and cases citid. 
' Evona v. Evans, 9 Penn. St. 190. 



180 LAW OF EEAL PROPERTY. [BOOK I, 

cases in giving .curtesy or dower to the husband or wife of the 
deceased person whose entire estate was determined 
[*135] by the death ; and *held the solution to 15e, that es- 
tates determinable hy executory devise and springing 
use, are not governed by common-law principles.^ It was ac- 
cordingly held that a limitation to A and her heirs, with a 
limitation over to N upon A's dying without issue, was such 
an estate in A as gave her husband the right of curtesy 
therein.^ 

21. If, therefore, the estate of the wife be an estate of in- 
heritance, determinable by a limitation which operates to de- 
feat her estate at common law, the right of curtesy, it would 
seem, is gone. But if the limitation over be by the way of 
springing use or executory devise which takes effect at her 
decease, thereby defeating or determining her original estate 
before its natural expiration, and substituting a new one in its 
place, which could not be done at common law, the seisin and 
estate which she had of the fee-simple or tail will give the 
husband curtesy.^ And the doctrine of this paragraph is now 
recognized as the law in such cases in New York.* 

22. If the wife be one of two or more joint tenants, though 
she is actually seised, yet if she die, living her co-tenant, her 
husband cannot claim curtesy, from the very nature of the 
estate, which becomes at her death the absolute and several 
estate of the survivor.^ 

23. The husband's curtesy is in many respects but a con- 
tinuation of the estate of the wife, though it is regarded more 
in the nature of an estate by descent than purchase.^ 

24. For these and other reasons it is held that the wife 

1 Duckworth v. Thirkell, 3 B. & P. 652, n. ; Moody v. King, 2 Biiig. 447. See 
also Barker v. Barker, 2 Sim. 249 ; and 2}ost, pi. 44 ; 3 Prest. Abs. 372. 

2 Grout V. Townshend, 2 Hill, 554. 

2 For the discussion of the points above referred to, the reader is referred to 
1 Eoper, Hus. & Wife, 36-42 ; 4 Kent, Cora. 33, and n. ; 3 Prest. Abs. 372, 384; 
Co. Lit. 241 a, Butler's note, 170 ; and a critical article of rouch learning and 
nice discrimination in 11 Am. Jur. 55. The point is also examined more at 
large in respect to dower, post, chap. 7. "Wright v. Herron, 6 Rich. Eq. 406 ; 
Grout V. Townshend, 2 Hill, 554. 

* Hatfield V. Sneden, 54 N. Y. 280. 

6 Lit. § 45 ; Tud. Cas. 38. 

6 Eoper, Hus. & Wife, 35 ; Watson v. Watson, 13 Conn. 83. 



en. VI.] EST.vTE.«i ny turte-sy. 181 

mu.st have boon actually soi.sod f>f tlin estate diirini^ covorttiro, 
thotiirh the formor .strietne.ss, in thi.s rc.sjM'ct, ha.H been rclaxid 
in Entrlaiul and .still mure so in several of the United States,' 
ThouLih it is laid down in numerous ea.ses that in order to 
entitle a husband to curtesy, the wife must have had actual 
seisin,- and that if she was never sei.sed durin;^ coverture, the 
husband has no riirht to her laml after her decease,'' it is i\\>- 
prehended that this is limited to those easels where her title is 
incomplete, at common law, without a f<irmal entry, as in the 
case of an heir or devisee, and does not extend to eases whi're 
the wife acipiires title by deed, the etTect of which is to pass a 
legal seisin and title to the land.* Nor is an entry necessary, 
in case of a descent of land in Missouri, to entitle the husband 
of the heir to curtesy out of the same.'' So in Mississippi, a 
constructive seisin of a wife is suflicient, as where the land is 
vacant, or in the hands of a tenant for years, or at sufTerance. 

25. Still, it is the ireneral rule of law in both countries that, 
if the estate be such that there may be an entry made ujton it, 
there must be such an entry durint^ coverture, in order to give 
tlie husband curtesy.*^ It is said that the chief rea.son for 
requiring, in this country, the husband to taki^ the lands of the 
wife into actual pos.session, is to .strengthen her title tn them, 
and protect them from adverse claim, and fiom hostile posses- 
sion, which might, by its continuance, endanger her right. 
And this may as well be done by the husband's vendee as by 
himself.' 

*2G. If, therefore, a woman be dis.sei.sed and then ['lotJ] 
marry, the husband must regain the seisin by making 
an entry during coverture.^ 

» Perkins, §§ 457, 470; Steams, Re.il Act. 283; Doctor & Stutl. 145 ; TuJ. 
Cas. 40 ; 1 Rojier, Hus. k Wife, 7 ; 4 Kent, Com. 30, n. 

- f)rr V. Hollidiiys, 9 R. Men. 59 ; Stinebnugh v. Wisdom, 13 B. Mon. 4C7. 

8 Petty r. Malier, 15 B. Mon. 591. 

* Ailair v. Ix)tt, 3 Hill, 18'2 ; Jackson v. Johnson, 5 Cowen, 74, 98. See also 
Wa.s3 r. Bucknam, 38 Me. 360. 

' Harvey r. Wickhftm, 23 Mo. 115; Reaume r. Chambers, 22 Mo. 36, 54; 
Stepliens r. Hume, 25 Mo. 349. 

6 Ailams V. Ixjpan, 6 Mon. 175; Mercer r. Selden, 1 How. 37 ; Xecly r. 
Butler, 10 B. Mon. 48. 

^ Vanars<lall r. Fauntleroy, 7 B. Mon. 401. 

" Perkins, § 458 ; 1 Rojier, Hu.s. k Wife, 8 ; Den r. Dcmarcst, 21 N. J. 525. 



182 LAW OF REAL PROPERTY. [bOOK I. 

27. In Eng^land, where land descends to the wife, the hus- 
band must enter to gain sufficient seisin to give him curtesy. ^ 

28. But in this country, as a general proposition, the seisin 
in law which, in the case just supposed, is thrown upon the 
heir if the ancestor die seised, would be sufficient to give her 
husband curtesy without actual entry made.^ And in Penn- 
sylvania, Connecticut, and Ohio, a right of entry on the part 
of the wife would be a sufficient seisin, although the premises 
were in the adverse possession of another.^ 

29. And it may be laid down as a general proposition that 
in this country, if lands are vacant or wild lands, ownership 
draws to it the legal seisin without any actual seisin being 
taken.^ But the husband of a wife who is entitled to a pre- 
emptive right in public land is not entitled to curtesy in the 
same.^ But in Kentucky, actual seisin is requisite in order to 
give curtesy even of wild lands ; ^ though the receipt of the 
rents and profits by the wife will be sufficient.'^ 

30. A decree of a court of competent jurisdiction, settling 
the right of husband and wife to the wife's land, would be 
deemed, so far as his right to curtesy is concerned, equivalent 
to actual possession.^ 

31. The possession by a co-tenant is sufficient to 

[*137] give * curtesy to the husband of a tenant in common, 

the entry and possession of one being the entry and 

1 Prest. Abs. 381 ; Co. Lit. 29 a. 

2 Day V. Cochran, 24 Miss. 261 ; Adair v. Lett, 3 Hill, 182 ; Jackson v. John- 
son, 5 Cow. 74 ; Chew v. Commissioners, &c., 5 Rawle, 160 ; Stephens v. Hume, 
25 Mo. 349 ; Mass. Pub. Stat. c. 173, § 3. 

3 Stoolfoos V. Jenkins, 8 S. & R. 167 ; Bush v. Bradley, 4 Day, 298; Kline v. 
Beebe, 6 Conn. 494 ; Borland v. Marshall, 2 Ohio, N. s. 308 ; Mitchell v. Ryan, 

3 Ohio St. 377 ; Merritt v. Home, 5 Ohio St. 307. 

4 Jackson v. Sellick, 8 Johns. 262 ; Davis v. JLison, 1 Pet. 503 ; Weir??. Tate, 

4 Ired. Eq. 264 ; Barr v. Galloway, 1 McLean, 476 ; Pierce v. Wanett, 10 Ired. 
446 ; McCorry v. King, 3 Humi)h. 267 ; Wells v. Thompson, 13 Ala. 7\)B; Guion 
V. Anderson, 8 Humph. 298, 324 ; Day v. Cochran, 24 Miss. 261 ; Reaume v. 
Chambers, 22 Mo. 36. But see Vanarsdall v. Fauntleroy, 7 B. Mon. 401. 

^ McDaniel v. Grace, 15 Ark. 465. 

6 Neely v. Butler, 10 B. Mon. 48 ; Stinebaugh v. Wisdom, 13 B. Mon. 467, 
overruling the dicta of the Supreme Court in Davis v. Mason, 1 Pet. 503 ; Welch 
V. Chandler, 13 B. Mon. 420. 

T Powell V. Gossom, 18 B. Mon. 179. 

8 Ellsworth V. Cook, 8 Paige, 643. 



CH. VI.] ESTATES BY CURTESY. 188 

possossion of all.' So if the grnntoo of the luishand nitcrH 
ujxiii th(! laini of the wife, and liolds jiossrssion undir 
sii(di LTimt, he will liavr tin- liLdits of a tenant liy ciirtrsv 
airainst tlic inMrs of the wifi- diirniir the lite of thr hiis- 
hand, althon^rh the latter neviT hud aetual jxts.session of the 
premises.^ 

32. The possession hy a t<'nant for years or at will of the 
wife is a siithcient seisin in the hushand, and the same will he 
true thon^li the estate descend to the wife snhjcct to a tenancy 
for years in another, and the wife die hefore receiving; rent ; 
the possession of the tenant in sneh cases heing regarded sm 
the possession of the owner of the inheritance.^ 

33. But if the estate of the wife he a reversionary one, snl)- 
jcct to a prior freehold estate in another, her constrnetivc 
seisin of such revcrsicjn will not entitle her hushand to curtesy, 
unless the prior freehold determine during coverture.* The 
case of Doc v. Rivers^ illustrates this proposition. In that 
case the tenant in tail, previous to her marria<_'e, made a set- 
tlement, by lease and release, upon her husliand for life, re- 
mainder to herself for life, remainder to the first and other 
sons of the marriage. She dying in the lifetime of lier hus- 
band, the heir in tail entered, and it was held the husband was 
not entitled to a life estate hy the .settlement or hy curtesy ; 
for, first, she, as tenant in tail, could not hy sueh conveyance 
affect the rights of the issue in tail ; secondly, the hushand on 
the marriage became seised of a freehold himself, and his 
wife's interest was therel»y turned into a reversionary one. In 
another case. A, by indenture, conveyed an estate to B, the 
wife of C, in fee, in which B and C agreed that A .sliould 

* Sterling r. Pfiilington, 2 E<i. Caa. Abr. 730 ; Wass t'. Bucknam, 33 Me. 360. 
' Vanarsdall v. Fauntleroy, 7 B. Mon. 401. 

* Tayloe v. Gould, 10 Barb. 383 ; Mackcy r. Proctor, 12 B. Mon. 433 ; De 
Grey r. Kichardson, 3 Atk. 469 ; Jackson v. Johnson, 5 Cow. "4 ; LowT>' r. 
Steele, 4 Ham. 170 ; Green v. Liter, 8 Cranch, 245 ; Powell v. Gossom, 18 B. 
Mon. 179 ; Day v. Cochran, 24 Miss. 261 ; Carter v. Williams, 8 I red. E<i. 177. 

* Adams v. Ix)gan, 6 Mon. 175 ; Stmldard r. Gibbs, 1 Siimn. 263 ; 2 BI. Com. 
127 ; Co. Lit. 29 a ; 3 Prest. Al«. 382 ; I.ourj- p. Steele, 4 Ham. 170 ; Ch.-w r. 
Conim'rs, 5 Kawle, 160 ; Hilncr v. Ege, 23 Pejin. St. 305 ; Orfoni r. Benton. 36 
N. H. 395 ; Planters' Bk. v. Davi.s, 31 Ala. 626 ; Malone r. Mcljiurin. 40 Mias. 
161 ; Ferguson r. Twee<ly, 43 N. Y. 643 ; Shores v. Carley, 8 Allen, 426. 

» Doe V. Kivtra, 7 T. IL 276. 



184 LAW OF REAL PROPERTY. [BOOK L 

occupy and possess it free from rent during her (A's) life. 
B died before A, and it was held that the husband could not 
claim curtesy .1 

34. It may be proper, in this connection, to notice the effect 
upon the wife's seisin and consequently the husband's right to 
curtesy, where the estate comes to her after it has been in the 
hands of another for the purpose of raising money for the pay- 
ment of debts and the like. If, for instance, a grantor by deed 
convey lands to another until he can, out of the rents and 

profits, pay the grantor's debts, the grantee will have 
[*138] a freehold * estate, because of the uncertain duration, 

though it might be obvious that, in all human prob- 
ability, the rents of the estate would cancel these debts in 
ten years. 

35. But if this were done by devise to his executors, for 
instance, until his debts should be paid, it would give but a 
chattel interest to the executors. If, therefore, the heir of the 
grantor, in the former case, were a married woman who should 
die before the estate of the grantee had determined by pay- 
ment of the debts, her husband would not have curtesy; 
while if she were heir of the devisor, as in the latter case, 
he would.2 

36. So where testator devised his estate to his widow until 
she tjould raise a certain amount, and then devised the estate 
to his daughter, subject to this devise to his widow, it was 
held that the husband of the daughter was entitled to curtesy 
on the same.^ 

37. Where that of which the husband claims curtesy lies in 
grant, like a rent, as understood at the common law, and not 
in livery, actual seisin is not required, seisin in law being 
sufficient.* 

38. Nor is it required in cases of grant by deed, where the 
seisin passes to the grantee of the inheritance by force of the 
Statute of Uses.^ 

1 Planters' Bk. v. Davis, 31 Ala. 633. 

2 Manning's Case, 8 Rep. 96. 

' Robertson v. Stevens, 1 Ired. Eq. 247. 

* Davis V. Mason, 1 Pet. 507 ; Co. Lit 29 a ; Jackson v. Sellick, 8 Johns. 
262. 

^ Jackson v. Johnson, 5 Cow. 74. 



en. VI.] ESTATES nv ruRTEsy. 185 

39. liut the seisin whidi a wife has as trustee of the letral 
estate, does not ^mvc Iut husl)an(l curtesy.' 

40. Anil in analotry to this doctrine, wlicrc a woman, before 
marriaL,a*, contracted by parol to convey her land for a price 
which was paid her, and the purchaser was put into posses- 
sion, and remained so after her inarriafrc and durinj^ her life, 
it was held that the husl)and could not claim curtesy .^ 

41. Nor would it make any dilli-rence in the al)ove case of 
seisin by the wife as trustee, that she should become 
entitled to a *reversi(m of the eciuitablo estate after [•13'J] 
the equitable life estate of another, if she dies before 

such intermediate estate is determined.^ 

41 a. Where a woman, on the eve of her marriafrc, conveyed 
her real estate without the consent of her contemplated husband, 
it was held to be a fraud upon his ritrhts and void as to him.* 

42. Sometimes, however, the owner of a reversion may, by 
its bein^ united with the life estate that precedes it, acquire 
such an immediate seisin as to raise the ri^ht of curtesy. But 
this may depend ui)ou whether it is by deed or devise. Thus, 
if a life estate and the reversion in fee come toirether in one 
person by deed, the reversion will merge the life estate, even 
though a contingent remainder were limited to intervene be- 
ween them ; the life estate merging in the reversion defeats 
the contingent remainder at common law by destroying the 
freehold particular estate which supported it. If, therefore, 
the person in whom the two unite is a feme covert, her hus- 
band might claim curtesy. But if there be a devise to one 
for life, with a contingent remainder in fee, there would be a 
reversion expectant upon the failure of the contingent remain- 
der which would descend to the testator's heir-at-law. And 
if she happened to be the devisee for life, and the doctrine of 
merger above explained were to apply, her reversion would 

• Chew V. Comm're, 5 Rawle, 160. 

' Wfilsh V. Chandler, 13 B. Mon. 420. In this case there was a dcvd given l>v 
hnsVmnd and wife, but the court held the doctrine of the text, without reference 
to the deed. 

» Chew r. Comm'rs, 5 Rawle, 160. 

♦ HoMis V. Blandford, 7 Mon. 469. See also Spencer r. Spencer, 3 .Tones. E<j. 
404 ; Williams v. Carle, 10 N. J. Eq. 543. See post, vol. 2. •537; Chandler c 
HoUingsworth, 3 Del. Ch. 99. 



186 LAW OF EEAL PROPERTY. [BOOK I, 

merge her life estate and destroy the contingent remainder. 
But as this would be giving the effect to a will to destroy 
itself, the law in such case will keep the life estate and rever- 
sion distinct, and the husband of such devisee cannot claim 
curtesy. Still, if such devisee for life were to acquire such 
reversion by any other means than by the will which created the 
several estates for life and in remainder, it would merge the 
life estate, and the effect would be to give the husband of 
the tenant curtesy therein.^ 

43. The same rule as applies in case of devise will, how- 
ever, apply where a tenant for life becomes such, and also a 
reversioner in fee with an interposed contingent remainder, 

by the same deed.^ 
[* 140] * 44. Curtesy being considered a continuance of the 

inheritance, it is not only necessary that the wife 
should have had a living child, but it must have been such 
a child as by possibility might have inherited the estate. 
Thus, if the inheritance be in tail male, and the child be a 
female, it would not be sufficient.^ So, where the devise was 
to A and her heirs, and if she died leaving issue, then to such 
issue and their heirs, it was held that upon her death her hus- 
band could not claim curtesy, since her issue would take as 
purchasers, and not as heirs of the mother to a part of her 
inheritance.^ 

45. It is immaterial whether the child is born before or 
after the wife acquires her estate, if, had it lived, it would 
have inherited that estate ; and it matters not though it die 
before she acquires the estate, so far as the husband's right to 
curtesy is concerned.^ So, when a wife in Massachusetts con- 
veyed her estate, which she held to her own sole use, without 
her husband joining in the deed, before any child born of the 
marriage, and a child was born after the conveyance, it was 

1 Plunket V. Holmes, 1 Lev. 11 ; Kent v. Hartpoole, 3 Keble, 731 ; 1 Cruise, 
Dig. 149 ; 1 Roper, Hus. & Wife, 10 ; 2 Crabb, Real Prop. 113 ; Doe v. Scuda- 
more, 2 B. & P. 294 ; Boothby v. Vernon, 2 Eq. Cas. Abr. 728, s. c. 9 Mod. 147. 

•^ Hookers. Hooker, Cas. temp. Hardw. 13. 

3 Co. Lit. 29 b ; Day v. Cochran, 24 Miss. 261 ; Heath v. White, 5 Conn. 
228, 236. 

* Barker v. Barker, 2 Sim. 249 ; Sumner v. Partridge, 2 Atk. 47. 

8 C^o. Lit. 29 b ; Jackson v. Johnson, 5 Cow. 74 ; 2 Bl. Com. 128. 



CIl. VI.] ESTATES BY CrRTF.SY. 187 

held that it irnvc him u riL'ht of furtcsy in tlic waiiM', as a wife, 
under tlie statute, cannot, by deed, (h'I'cat her hnsliaml's rij/ht 
if he survive her.' If was accordingly held, where adverse 
possession was taken in the life of the wife durinir cr»vertiire, 
and she then had issue ami died, that her husl>and was en- 
titled to curtesy .2 And where a man married a widow who 
already had a son, and had by her u child, he was held 
entitled to curtesy in her estate against any claim of such 
prior 8on.^ 

40. Hut in most of the States where curtesy is allowed, 
great strictness is required in the proof that the child was 
actually born alive in the lifetime of the mother. In I'enn- 
sylvania, the necessity of a child being born is dispensed with 
by statute.* The maxim of the common law on the subject 
of the birth of such child is mortuus eritus non est exitus, and 
if the mother die before the exitiis of the child, and that be 
by the Ca'sarean operation, thoutrh it be born alive, it would 
not l)e sufhcient to give the father curtesy.'^ The rule in Nor 
mandy, where curtesy is allowed, is thus stated : // faut ipi'il 
soit sorti Ju vetdre dc la mrre, il ne suffiroit pas que la tete eut 
paru et qu'on pretendit qiCil auroit donn6 des sijnes de vie par 
des oris ou antrement.^ 

47. As soon as a child is born, the husband's right to cur- 
tesy is said to be initiate, and is consummate only ujjon the 
wife's death. The freehold is thereupon, ipso facto, in him, 
nor would any disclaimer of his, short of an actual release, 
prevent its vesting in him instantly ujion the death of the 
wife. It devolves u})ou him as the estate of the ancestor does 
upon the heir." 

1 Comer v. ChnmWrlain, 6 Allen, 166. 

* Jackson r. Johnson, 5 Cow. 74 ; Guion r. Anderson, 8 Humph. 307. 

• Heath r. White, 5 Conn. 236. But the law is otherwise by statute in Michi- 
gan. Hathon r. Lyon, 2 Mich. 93. 

* 1 Cruise, Dig. 143, n. ; Dunlop's I^ws, p. 510 ; Lancaster Co. Bonk r. Stauf- 
fer, 19 Fenn. St. 398 ; Co. Lit. 29 b; Dubsi-. Dubs, 31 I'enn. St 154. This jx.int 
ia discus.sod in connection with the ijuestion how far a chihl en ventre aa viirc may 
be considered as in existence, in Mursellis v. Thalliimer, 2 Paige, 35. 

» Co. Lit. 29 b ; Marscllis v. Tlialhiiiier, 2 I'aige, 42. 

• 1 Flaust, Coutumes de Normandie, 613. 

"> 2 Bl. Com. 128 ; Watson v. WatAou, 13 Conn. 83 ; Witham r. ^erkin^ 2 
Me. 400 ; Walk. Am. Law, 329. 



188 LAW OF REAL PROPERTY. [BOOK L 

[*141] * 48. His estate thus acquired is one for life in his 
ovra right, and, although it is said to have had its 
origin in the husband's obligation to support the children, 
he is as much entitled to it when they do not need support as 
when they do, and where they do not as where they do live 
any length of time, if actually born alive.^ 

49. Though somewhat anticipating the subject-matter of a 
subsequent chapter (ch. 9), it seems desirable to ascertain 
here, what is the nature of the husband's right of curtesy 
initiate during the life of the wife, and how far she or her 
heirs would be affected by a tortious entry and possession by 
a stranger during the coverture. The cases agree, that by 
the marriage the husband acquires an estate of freehold in the 
inheritance of the wife, in her right, but he is not sole seised 
during coverture, and that after issue had, though he is tenant 
by the curtesy, he is jointly seised with the wife.^ The court 
of New Hampshire regard this seisin and possession of the hus- 
band by right of curtesy initiate, as so entirely his own, that 
if he is disseised during coverture, neither his wife nor her 
heirs would be affected by a possession under such disseisin, 
however long continued, so long as the husband was alive, and 
that they would have twenty years after his death in which to 
regain their seisin by entry or action, in the same way as a 
reversioner who had an estate expectant upon an estate for 
life.*^ The court of Tennessee, on the contrary, hold that such 
disseisin and possession run against both husband and wife, 
and would bar the title of both as well as of her heirs, except 
for the saving in the statute in favor of femes covert, &c., 
which gives a certain time in which to bring an action after 
such disability is removed. The same rule applies as to 
her heirs, in case the husband survives her, they having 
three years, the time given to persons under disabilities 
after the same are removed, in which to sue for the land. 

1 Heath v. White, 5 Conn. 235. 

2 "Weisinger t). Murphy, 2 Head, 674 ; Guion v. Anderson, 8 Humph. 298, 325; 
Butterfield v. Beall, 3 Ind. 203 ; Jackson v. Johnson, 5 Cow. 74, 95 ; Junction 
Railroad v. Harris, 9 Ind. 184 ; McCorry v. King's Heirs, 3 Humph. 267 ; Mel- 
vin V. Prop'rs, 16 Pick. 161 ; post, chap. 9, pi. 3. See also Wass v. Bucknam, 
38 Me. 356. 

» Foster v. Marshall, 22 N. H. 491. 



CU. VI. j E.STATE.S UY CURTKSV. 1 SfJ 

And tlu! same doctrine is maintaiiK d in Maine and ^la.s.^a- 
chusetts.'* 

50. Curtesy beinjj considered a continuance of tlif wifr's 
inheritance, the hnshaml takes the estate subject to the same 
incumbrances under which she lield it.'-* 

51. And this ri^ht initiate, as well as the estate consum- 
mate, is liable to be taken for his debts ; nor can he defeat 
the rijrht by any disclaimer of his right to curtesy .^ Nor will 
ecjuity interfere in favor of wife or children to prevent his 
creditors levying upon his estate.* 

52. It was once deemed an insujierable disability to the 

• Note. — The court of New Ilamitshirc rvfer to Jackson v. Johnson, 5 Cowon, 
74, and Heath r. White, 5 Conn. 228, as having liccn " dt'ciilcd in acconlnnco 
with our views, and wo think uf)on sounder princiides than tlie ca.scs in Ma.ssa- 
chusetts to which we have referred." But it is to be noticed that in the first of 
the^e cases the disseisin occurred In-fore the husband's right to curtesy liad be- 
come initiate by the birth of a child, and the court were divided in opinion. 
And in the other, tlio allege<l ailverse [wssi-ssion of the tenant did not Kgin 
until after the death of the wife, and the husljand was the only ttne entitled to 
the possession or liable to be disseiseil, the luir being a mere reversioner, and, 
of course, not aifected by any i>ossession adverse to the hus))and as tenant for 
life. The foregoing cases do not relate to the elfect of a conveyance by the 
husbuid. By the statute 32 Ibii. VIII. c. 28, which is a jwrt of the common 
law of Massachusetts, if the husband alone conveys his wife's land, it shall not 
work a discontinuance of her estate, but she or her heirs, at his deceast-, may 
enter ujkiu the same as if no sach conveyance had b«'en made. Bruce v. Wood, 
1 ilet. 542, 544. And see Miller v. Shackleford, 4 Dana, 277 ; 2 Kent, Com. 133, 
note ; post, p. •425. 

* Weisinger v. JIurphy, Guion v. Anderson, McCorry r. King's Heirs, sup. ; 
Melius V. Snowman, 21 Me. 20l ; Melvin r. Prop'rs, 16 Tick. 161 ; Bruce v. 
Wood, 1 Met. 542. Sec post, p. *425 ; Coo v. Wolcottville Mg. Co., 35 Conn. 
175 ; Watson v. Watson, 10 Conn. 75, 88. 

« 2 Crabb, Real Prop, 119 ; 1 Kojwr, Hus. k Wife, 35. 

» Burd V. Dansdalo, 2 Binn. 80 ; Watson v. Watson, 13 Conn. 83 ; Canby r. 
Porter, 12 itliio, 79 ; Van Duzer ». Van Duzer, 6 Paige, 366 ; Litchfield r. Cud- 
worth, 15 Pick. 23 ; HoIk-tU r. Whiting, 16 Mass. 186 ; Mattocks v. Steams, 
9 Vt. 326 ; Ijincaster Bk. r. Stuulfer, 10 Pcnn. St. 398 ; Day r. Cochran, 24 
Miss. 261, 275. But fjuery, how fur it is liable for debts in Missouri. Harvey r. 
Wickham, 23 Mo. 117. In Pennsylvania it cannot l>e levi«l on. Brightly Punl. 
Dig. p. 1007. And in Massachusetts it is lieM that the statutes |Mnnitting the 
wife to cut off the husliaud's curtesy with his consent are inconsistent with a 
right in creditors to levy thereon. Silsby v. Bullock, 10 Allen, 94 ; SLapl«» r. 
Brown, 13 Allen. 64. 

♦ Van Duzer v. Van Duzer, 6 Paige, 366. 



190 LAW OF REAL PROPERTY. [BOOK I. 

right of curtesy that the husband was an alien, the law not 
lending him its aid to obtain an estate which, when obtained, 
it might at once take from him.^ 

53. There are various ways in which a husband may forfeit 
his estate to curtesy, and in some of the States this is a conse- 
quence of a divorce a vinculo, obtained against him by his wife 
for his fault, for his estate can never become consummate by 

the death of his wife, if the woman whom he mar- 
[*142] ried cease * to be wife during her life. This has been 

so held in Connecticut, Massachusetts, New York, In- 
diana, Vermont, Kentucky, and Delaware, in cases decided in 
their courts.^ In North Carolina, by statute, his curtesy is 
barred by his adultery, divorce, or abandonment of his wife. 
So in Maryland by his bigamy.^ 

54. By the English law, after the statute Westm. 2, c. 24, 
tenant by curtesy would forfeit his estate by making a feoff- 
ment of the lands.^ And the same was held to be the effect 
in Maine and New Jersey, of a deed of conveyance in fee.^ 
But it was held in Pennsylvania and New Hampshire that 
such a deed would convey only such estate as the grantor had, 
and would not operate as a forfeiture.^ So in Kentucky, a 
deed of bargain and sale by a husband in fee conveys only 
such interest as he has in the premises." And in South Caro- 
lina, where a husband conveyed his wife's land in fee, it was 
held that the grantee thereby acquired the husband's rights, 

1 Foss V. Crisp, 20 Pick. 121 ; Reese v. Waters, 4 Watts & S. 145. But this 
disability is now done away with in most of the States. See note on the subject, 
chap. 3. 

2 Bishop, Mar. & Div. § 666. See also 1 Greenl. Cruise, 150 : Wheeler v. 
Hotchkiss, 10 Conn. 225 ; Conn. Gen. Stat. 1875, p. 187. See, as to effect of 
divorce, the note at the end of chap, 7. 

3 Md. Rev. Code 1878, art. 72, § 102 ; N. C. Code 1883, § 1838 ; Long v. 
Graeber, 64 N. C. 431 ; Teague v. Downs, 69 N. C. 280. So in Kentucky. Gen. 
Stat. 1873, c. 52, art. 4, § 14. In Aiizona, in such a case it is at the discretion 
of the court. Comp. L. 1877, § 1978. 

4 2d Inst. 309. 

6 French v. Rollins, 21 Me. 372 ; 4 Kent, Com. 84. 

6 McKee v. Pfout, 3 Ball. 486 ; Flagg v. Bean, 25 N. H. 49 ; Dennett v. 
Dennett, 40 N. H. 498. For the effect of such conveyances upon the estate of 
the tenant by curtesy, the reader is referred to p. *142, note 5. 

■' Meraman v. Caldwell, 8 B. Mon. 32 ; Miller v. Miller, Meigs, 484. See also 
Butterfield v. Beall, 3 Ind. 203 ; Junction Railroad v. Harris, 9 Ind. 184. 



ClI. VI. J ESTATES DV riMlTESY. 101 

and that she coiihl not, (hiring tlic lite ot licr hushanfl, rocover 
jiosscssion of the same, and that slw had seven years after his 
death in wliich to brinir an aetion lor the same. S(j in Ten- 
nessee.^ By statute in New York, a wife may defeat the 
husband's right to curtesy in lands aeeruing to her during 
coverture, by conveying them to a thinl per.son. Jlut unless 
she e.vereises her rii^ht during iier life, ids right to curtesy at 
cunnnon law remains."- 

55. It is hardly necessary, after what has been said, to add 
that tenants by curtesy hold their estates subjeet to the duties, 
limitations, and obligations, which attach to those of ordinary 
tenants for life, for which reference may be had to the chapter 
which treats of estates for life. 

5b. LiDon the death of the wife, the husband is at once in 
as tenant by the curtesy, without having to resort to a prelim- 
inary form to consummate his title to the same. 

' Mmincrlyn r. Munnerlyn, 2 Brcv. 2; Miller v. Milkr, Jlcigs, 4S4. Sec uls,t» 
Boykiii V. liniu, 2S Ala. 332. 
3 Clark V. Clark, 2* Barb. 581. 



192 LAW OF REAL PROPERTY. [BOOK L 



CHAPTER YII. 

DOWER. 

Sect. 1. Nature and HistxDry of Dower. 

Sect. 2. Of what a Widow is Dowable. 

Sect. 3. Requisites of Dower. 

Sect. 4. How Barred or Lost. 

Sect. 5. How and by whom Assigned. 

Sect. 6. Nature of the Interest and Estate of Dowress. 



SECTION I. 

NATURE AND HISTORY OF DOWES. 

1. Dower defined. 

2. History of dower. 

3. Early regard for it. 

4. Reasons for Dower Act of "Wm. IV. 

5. Dower in the United States. 

6. Varieties of dower. 

7. Dower an institution of law. 

8. Division of the subject. 

9. Lex loci applied to dower. 

10. Rule as to time in respect to dower. 

1. Dower is the provision which the law makes for a widow 
out of the lands or tenements of her husband, for her support 
and the nurture of her children.^ 

2. There seems to be much uncertainty in regard to its ori- 

gin and early history. The word cZos, indeed, was de- 
[*147] rived * from the civil law, but signified dowry, or the 

portion which the wife brought to the husband, and 
no such provision as the common law makes out of the hus- 

1 Co. Lit, 30 a ; 2 Bh Com. 180. 



CU. VII. § 1.] DOWKU. l!"'. 

baml's hinds for the wife, was known to that co(h',' (Uitti- 
bock, in his coniinents uj>on liiuctun, huKls that Knj^lish dower 
was not a Roman institution, l)ut "should rather he compared 
to tlie doarium (Witthum) of the (Jerman k'j;al authorities." - 
From what source the common law derived tlic institution of 
dower, the various writers u|)on the subject do not af^rec. 
From the statement of Tacitus that, among the Germans, 
dowry — dos — was something bestowed In* tlie husband uj>on 
the wife,"'' Mr. Cruise assumes that the custom of d<jwer was 
derived from the Germans, and thence became well known to 
the Saxons,'* from whom it passed into the common law. 
Blaekstoiic, on the other hand, says, it ''seems to have been 
unknown in the early i):irt of our Saxon constitution," and 
suggests that " it might be with us the relic (jf a Danish cus- 
tom, dower having been introduced into Dennuirk by Sweyn, 
the father of Canute the Great." ^ Sir Martin Wright main- 
tains that it was unknown to the early Saxon law, and that it 
found its way into England by means of the Norman con(piest. 
Quoting from Bacon's " History of the English (Jovernment," 
he says, " We find no footsteps of dower in lands until the 
time of the Normans." ^ Mr. Maine ascribes the existence of 
dower to the influence and exertions of the Church. After 
exacting, for two or three centuries, an express promise from 
the husl)and at marriage, to endow his wife, it at length suc- 
ceeded in ingrafting the jtrinciple of dower on the customary 
law of all western Europe." Mr. naningtoii inclines to believe 
that the English borrowed the doctrine from the Goths and 
Swedes. One reason assigned by him for the making of such 
a provision by law was, that wives had no personal fortune to 
entitle them to a jointure by the way of bargain on their mar- 
riage. And one reason why the widow was to continue in the 
capital messuage for the term of forty days after the hus- 
band's death, was to prevent a supposititious child ; that being 
a deceit not unfrcquently practised in the time of Magna 

1 Terraes de la Ley, 280 ; 2 Bl. Com. 129. « E<lition by Coxe, 135. 

' '^ Dolcm non uxor marito acd uxori maritus offcrt." Tac. De Mor. Ger. 18. 
* 1 Cruise, Dig. 152. 

» 2 Bl. Com. 129. « Wright, Ten. 191 ; Bacon, Hist. Eng. Gov. 104. 

' Anc. Law, 224. 
VOL. I.— 13 



194 LAW OF REAL PEOPERTY. [BOOK I. 

Charta.^ Whatever its origin, it had become so well estab- 
lished and was held in so much favor as early as the reign of 
Henry HI., that express provision was made in the Magna 
Charta of the ninth year of that king's reign,^ for enforcing 
it in favor of a widow, and for assigning it to her without 
charge, and giving her in the meantime the right to occupy 
the principal mansion of her husband, if not a castle, for the 
space of forty days after his death, free of charge, unless she 
should marry again within that period. ^ 

3. The favor with which dower was for a long time regarded 
in the early history of the common law, is evinced by the prom- 
inent place it holds among the early writers, as well 

[*148] as * among the decisions in the Year Books. Bacon, 
in his treatise on Uses, remarks that, " tenant in 
dower is so much favored as that it is the common by-word 
of the law that the law favoreth three things, — life, liberty, 
dower." * 

4. In treating of this regard for dower in connection with 
the changes in the condition of property in England which 
led to the act of 3 and 4 William IV. c. 105, called the Dower 
Act, the commissioners on the subject of the law of real prop- 
erty refer, as an explanation, to the fact that dower took its 
rise before estates were alienable inter vivos, or devisable by 
will, and when, practically, no general inconvenience could 
result from appropriating a portion of the inheritance of a 
deceased proprietor for the support of his widow, " whose 
claims, in natural justice and policy, appear to stand at least 
on an equal footing with the claims of the heir." ^ There had 
been, however, for many years, a growing disposition in that 
kingdom to free the real estate of its subjects from the in- 
cumbrance of dower which embarrassed it as a means of con- 
verting it readily into purposes of trade and commerce. And 
various measures had, from time to time, been resorted to, to 
relieve these estates from this charge of the common law. It 
will be proper to refer hereafter to some of the expedients 
to which conveyancers had recourse in order to evade the 

1 Stat. 9, 10. Fleta, cap. 15. ^ That of John contained no such provision. 
' Magna Charta, c. 7 ; 2d Inst. 16. * Bacon, Law Tracts, 331. 

» 1 Report, Eng. Com. 18. 



CII. VII. § 1.] POWER. 19.-, 

claims of married women upon the estates of tlieir liusl)ainls ; 
but it is only necessary to remark, ut this time, that Ity the 
act above referred to, it rests with the husband whcfhcr his 
widow shall share any part of his real estate as her dower (»r 
not. This, however, is in fact a chancre of less practical 
importance than mitrht at first be supposed, for, as stated by 
the commission above mentioned, Ity the UH-ans icfcrrcd to, the 
law of dower had come to be in most cases evaded, and the 
ri^dit to dower existed iM-nelicially in so few instances that it 
was of little value considered as a provision for widows, and 
never calculated on as a provision by females who contracted 
marriaire, or by their friends.' * 

*5, In this country, thouiili the riudit of dower has [*14i'] 
been modilied from time to time, and is not by any 
means uniform throujrh all the States, it has been re«rarded 
with a f^ood dei^ree of favor, Ijeing conformed by the laws of 
the several States to the sujtposcd wants and condition of their 
citizens. In the majority of States dower exists in its common- 
law form;- thoutrh, in many of these, additional jirovisiuns are 

* Nin K. — Tlie earliest net upon the suhjcft in Mas-sachusetts is that of 1»341, 
which gives to willows a right of dower to one third part of such hinds, tene- 
ments, and hereditaments as tlie huslwnd may liave been seised of during cover- 
ture, excepting such as may liave Iweii conveyed " by some act or consent of 
such wife, signitied in writing under lier liand, and acknowh-dged before some 
magistrate or others authorized tliereto, whicli shall bar her from any right or 
interest in such estate." Mass. Anc. Chart. 99. This ordinance is said to have 
been the origin of the custom so universal in this country of wives barring their 
claim of dower by joining in a deed with their husbands of tlie estate granted. 

1 1 ReiHjrt, Eng. Com. 17. 

■■« These are Alabama, Code 1876, §§ 2232, 2233. Arkansas, Rev. Stat. 1874, 
§ 2210. Delaware, Rev. Stat. 1874, p. 515, 533. Florida, Dig»'st 1S81, c. 95, § 1. 
Illinois, Rev. Stat. 1883, c. 41, § 1 ; Sturgis v. Ewing, 18 111. 176. Kentucky, 
O.-n. Sut 1873, c. 52, art. 4, § 2. Michigan, Conij.. L. 1871, § 4269. Maine. 
Re.-. Stat. 1883, c. 103, § 1 ; and see § 14. Massachusetts, Tub. Stat. ISSl, 
c. 124, § 3. Missouri, Rev. Stat. 1879, § 21 86, in lands owned in fee and al.>.o 
leaseholds of twenty years' duration. Marylan<l, Rev. Code 1878, art. 45, § 1. 
Nebraska, Gen. Stat. 1873, c. 17, § 1. (Querj- in New Hamp-shin-. Gen. L. 187S, 
c. 202, §§ 2, 4.) New York, 1 Rev. Stat. 740, § 1. New Jereey, Rev. 1877, 
p. 320, 298. North Carolina, Code 1883, § 2102. Ohio. Rev. Stat 1880, § 4188, 
al.so in all the lands in which the husband had an interest by Imnd, lea*', or 
claim. Oregon, Gen. L. 1872, p. 584. Rhode Island, Pub. Stat 1882. c. 229, 
§ 1. c. 166, § 20. South Carolina, Gen. Stat. 1882, § 1801. Virginia, Co<io 1873, 
c. 106, § 1. W. Virginia, Rev. Stat. 1879, c. 70, § 1. 



196 LAW OF REAL PROPERTY. [BOOK I. 

made in favor of the widow, generally in case of intestacy or 
if there are no children.^ In a number of the States dower 
has been expressly abolished, and different provisions substi- 
tuted ;2 and in others again statutory provisions have been in- 
troduced inconsistent with such an estate in the wife. Thus 
in California and Texas, she has one half of the community 
property, or that acquired by either during coverture, but no 
dower in her husband's separate or antenuptial estate.^ In 
several States her dower interest is limited to property of 
which her husband died seised.* In Colorado she takes one 
half interest in fee in any realty owned by him during cover- 
ture.^ In Pennsylvania, while her interest is the same in 
amount as at common law, it is held that she takes it as heir.^ 
In Indiana she receives also as heir a fee in one third of her 
husband's realty, decreased to one fourth, and one fifth as the 
estate increases in value." In Iowa, in 1851, dower was abol- 

1 Thus in Illinois, in such case, one half of the husband's realty in fee ; in 
Delaware one half for life ; in Florida she may, at her election, take a child's 
share in such real estate ; in Massachusetts, in case of intestacy, a childless widow 
receives realty to the value of $5,000, if there is so much after paying debts, 
and has dower in her husband's other real estate. And it is very generally 
provided that if there are neither children nor kin, the widow will take the whole 
real estate as heir. Statutes icbi siqwa, and 2}ost. 

2 This is the case in Arizona and Nevada, where the community system pre- 
vails. Ariz. Comp. L. 1877, § 1976 ; Nev. Comp. L. 1873, § 157. So Dakota, 
Rev. Code 1877, p. 247 ; Indiana, Rev. Stat. 1881, § 2482 ; Iowa, Rev. Code, 
1880, § 2440, where the widow takes one third in fee of all the realty whereof 
the husband was seised in fee at law or in equity during coverture, and which has 
not been sold by judicial sale. Kansas, Comp. L. 1879, § 2129, where the widow 
receives one half in fee under similar conditions, § 2109. Minnesota, Laws 1S75» 
c. 40, § 5. Mississippi, Rev. Code 1880, § 1170, where the widow takes the whole 
realty if there are no children, otherwise a child's share, § 1171. Wyoming, 
Comp. L. 1876, c. 42, § 1, where the widow's share is one half in fee if there are 
children ; if none, the three quarters in fee, unless the estate is under $10,000, 
when she takes the whole. lb. 

8 Beard v. Knox, 5 Cal. 252 ; Tex, Rev. Stat. 1879, § 1653, and if no children, 
she has the whole. lb. 

* Connecticut, Gen. Stat. 1875, p. 376 ; New Hampshire, Gen. L. 1878, c. 202, 
§ 2, but see § 4 ; Vennont, Rev. L. 1880, § 2215 ; Georgia, Code 1873, § 1763 ; 
Tennessee, Stat.*1871, § 2398. 

5 Gen. L. 1877, § 1751. 

6 Brightly, Purd. Dig. p. 528 ; but subject to his debts, Gourley v. Kinley, 
66 Penn. St. 270 ; and if no issue she has one-half for life in lieu of dower, Dig. 
p. 529. ' Rev. Stat. 1881, § 2483. 



fli. VII. § 1.] DOWETl. 1<j7 

ishcd and restored in 18')3.' It was ajrain abolished in 180'2, 
and an estate of one third in fee of all the husband's realty 
c.\e('i)t wiiat bad been sold on exeeution was ji-ivcn in its stead.'** 
Dower had been estalilished by law in Missouri while it was yet 
a territory.^ And by tlie ordinance of ITST, it beeaine an inci- 
dent to proj)erty throughout tin? Northwest Territory.* 

G, To save the necessity of exjilainition hereafter, it may be 
remarked that the word ''dower," both technically and in a 
popular sense, has reference to real estate exclusively.^ Used 
in this sense, there were five species known to the English 
law, one only of which, namely, that at common law, is in use 
in this country.^ All the others, except that " by custom," 
have been abolished by statute in England, after having fallen 
into general disuse."* Before the share of which a widow 
should be dowal)le was so fully defined in the Magna 
Charta of lien. III.,* dower ad ostium ecchsice was ['loO] 
princii)ally in use, the husband, however, being re- 
stricted to one third part of his estate.^ If no such endow- 
ment was made, she might take one third of all the lands of 
which the husband was seised at tlie time of the espousals. 
And if he had no iaiuls at the time of espousul, an endowment 
of goods and chattels at that time was a bar to dower in any 
lands he might afterwards acquire.'' Among the species of 
dower by custom in use in England in i)articular localities arc 
those of Gavelkind and of Freebcnch in copyhold lands. By 

• Note. — It will l)c enough, therefore, to mention these without any further 
explanation. Dower ad ostium ecclcsiir, was the enilownunt by the husliand of 
liin wifo at the time of their marriage of certain specific lan<b. Tliat ex assensu 
jMiiria was like the last, except that the endowment wa.s of lands of the father by 
his assent. Dower dt. la plus belle was connected with military tenures*, and lie- 
came extinct upon the abolishing of these by the statute 12 Charles II. c. 24. 
Lit § 48 ; 2 Bl. Com. 132. 



' Burke v. Barron, 8 Iowa, 1.34 ; Lucas v. Sawj-er, 17 Iowa, 619. 
2 Meyer r. Meyer, 23 Iowa, 359. 

• Ueaume v. Chambers, 22 Mo. 30 ; Wagner's Stat. 18C0, p. i38 ; Rev. Stat 
1874, p. 423. 

« O'Ferrallr. Simplot, 4 Iowa, 381. 

» Dow r. Dow, 36 Me. 211. • Steam^ Real Act. 278. 

' 2 Bl. Com. 135. "2 BL Com. 133. GlanvilJe, lib. 6, cap. 1. 

• 2 Bl. Com. 134. 



198 LAW OF REAL PROPERTY. [BOOK I. 

Gavelkind she took half the lands of the husband during her 
widowhood.^ By Freebench she had in some manors all the 
customary lands of the husband so long as she remained 
chaste and unmarried. If she married again she forfeited 
these lands, but might regain them by riding into the Barons' 
Court upon a black ram, backwards, reciting certain doggerel 
rhymes, — a sample of the coarse fun in which the common 
people in England were inclined to indulge.^ 

7. This brief recurrence to the history of this species of 
estate will serve to illustrate the remark of the court in giving 
judgment in a matter involving the right of dower in New 
York. " It is not the result of contract, but a positive insti- 
tution of the State, founded on reasons of policy." ^ And in 
this connection it may be proper again to refer to the language 
of the Magna Charta, which in the first place relieves the 
widow from the burden of fine and relief, to which heirs and 
alienees were uniformly subjected by the feudal law, declar- 
ing that she shall give nothing for her dower. It then gives 
her the right to tarry in the chief house of her husband, if not 
a castle, " by forty days after the death of her husband," which 
has since been known as her quarantine;^ and adds, "And for 
her dower shall be assigned unto her the third part of all the 
lands of her husband which were his during coverture, except 
she were endowed of less at the church-door." ^ So uniform has 
the common law of both countries been in this respect, that in 
popular phrase a widow's dower is called her " thirds," implying 
an interest to that extent in the real estate of her husband. 

8. In treating of the subject of dower, it is proposed to con- 
sider — 1. Of what a widow is dowable. 2. What are the 
requisites to entitle her to dower. 3. How the right of dower 

maybe lost or barred. 4. How and by whom dower 
[*151] may be * assigned, and in what manner its assignment 

be enforced. 5. The nature of the interest and estate 
of a wife and widow in her dower land. 6. Some of the 
peculiarities as to dower existing in the several States. 

9. It may be proper, as a preliminary remark, to observe 

1 Co. Lit. Ill a. 2 jac. Law Die. " Free Bench." 

8 Moore v. Mayor, 8 N. Y. 110. * 2 Bl. Com. 135. 

6 2 lust. 16. 



CU. VII. § l.J DOWER. 199 

that the hiw liy wliich the ri^ht of duwer in any particuhir 
case is determined, is that of the place where the Hubjj-et- 
matter of the claim is situate. Thus a woman who is married 
and domiciled in Louisiana is entitled, upon the death of her 
husband, to dower in lands of which he was seised in Missis- 
8ipj)i, althouj^h,in the jilace of her domicil, dower is not recoj^- 
nizecl l>y law.^ So, thoufrh a widow domiciled in (leor;^ia 
could only claim dower in such lands as her hushand died 
seised of, she may recover it in South Carolina in all lands of 
which he was seised in the latter State durintr coverture.''* 
The ri;:^ht of dower does not result from any contract, nor is 
it a right which is guarded by constitutional provisions of the 
State. It is an incident of the marriage relation resulting 
from wedlock, cstabli.shed by positive institutions of the coun- 
try where it is applied, so that a widow is entitled to dower, 
although the marriage was consummated abroad, where the 
common law does not obtain.^ And it results, moreover, 
from wedlock by the operation of existing laws at the time of 
the husband's death.* 

10. ]]ut though dower is to be assigned according to the 
law in force at the death of the husband, that is not always a 
test of the widow's right to be endowed. Thus, for instance, 
where land of the husliaml was sold for the payment of debts, 
untU-r a law which cut oil the right of d(jwer therein, and a 
subsequent statute was enacted securing to a widow dower 
out of all the lands of which her husband was seised during 
coverture, it was held that it would not extend to lands jiro- 
viously sold during coverture under the then exist- 
ing law.^ So where a statute * had changed the com- [*152] 
mon law by restricting a widow's dower to lands of 
which her husband died seised, but saved all rights which ha<l 
already attached, a husl)and during coverture had previously 
sold an estate by deed in which his wife did not join, and they 
had removed from the State, it was held that she had a right 

» Duncan r. Dick, Walker, 281 ; Story, Confl. Laws, § 44S ; 2 Kent, Com. 
183, n. " 

a Umnrr. Scott, 3 Strobh. 562, • Moore r. The Mayor, 8 N. Y. 110. 

* Mclizet's App., 17 Pcnn. St. 449 ; Lucaa v. Sawyer, 17 Iowa, 617 ; Ivaodall 
V. Kn-iger, 2 Dillon, 444. 

& Kcnnerly v. MiiiM>uri Ins. Co., 11 Mo. 204. 



200 LAW OF EEAL PROPERTY. [BOOK I. 

to claim dower in this estate.^ Upon the same principle, 
where a statute gave dower to a wife upon her divorce from 
her husband for his misconduct, it was held not to retroact so 
as to affect lands conveyed by him before such statute was 
passed.^ So where the statute of a State excluded a wife 
from dower who had been divorced for her " aggression," it 
was held that a divorce granted in another State, though for 
such cause, did not operate to bar her claim in the former 
State.^ If after the death of the husband and before judg- 
ment in an action of dower, the law is changed, her rights iu 
respect to the same are determined by the law as it was at 
her husband's death.^ And the same rule applies where the 
husband has conveyed the land during coverture ; the law at 
the time of such conveyance fixes the wife's right to doAver in 
the same.^ A question has been raised in several of the 
States, how far the legislature can, by legislative action, affect 
an inchoate right of dower or curtesy, during the coverture 
of the parties. The question has been presented in two forms. 
In one is involved the right of dissolving a particular marriage 
by such an act, and thus defeating its incidents of dower and 
curtesy. In the other, the right by general law to change or 
abrogate these as rights of property without directly acting 
upon the status of marriage. The weight of authority upon 
the latter point appears to be decidedly in favor of such a 
power in the legislature, and that it is the law, as it exists at 
the time of the husband's or wife's death, which determines the 
survivor's right to dower, or curtesy. This seems to be 
the recognized law in New York, Pennsylvania, Iowa, New 
Hampshire, Ohio, Maine, Mississippi, and Missouri, although 
the power of dissolving marriages by legislative acts is denied; 
Connecticut, where legislative divorces are held valid, and 
Kentucky, where a like doctrine is held ; ^ and the court of 

1 Johnson v. Vandyke, 6 McLean, 422. This was a case arising in Michigan. 

2 M'Cafferty v. M'Cafferty, 8 Blackf. 218 ; Comly v. Strader, 1 Smith (Ind.), 
75 ; s. c. 1 Ind. 134. 

8 Mansfiehl v. M'Int3Te, 10 Ohio, 27. * Burke v. Barron, 8 Iowa, 132. 

5 O'Ferrall v. Sim[ilot, 4 Iowa, 381 ; Yonng v. Wolcott, 1 Iowa, 174. But see 
Strong V. Clem, 12 Ind. 37, and cases cited in Moore v. Kent, 37 Iowa, 20. 

6 Thnrber v. Townsend, 22 N. Y. .''.17 ; Moore v. I\Iayor, 8 N. Y. 114 ; Meli- 
zet's App., 17 Penn. St. 455 ; Lucas v. Sawyer, 17 Iowa, 517 ; Merrill v. Sher- 



CII. VII. § 1.] DOWKR. 201 

Illinois, vliich fonncrly held such a ri"_'ht to ho a vested one, 
and not siiliject to he defeated l>v an aet of lejjrislation, han 
recently declared it not a vested riLdil, hut within the control 
of the lejrislature.' 'i'he coui-ts of Florida, without ch'cidin*^ 
the main ([uostion, hold nianiajre a cr>ntiact which tiie leiris- 
hiture may not impair ;2 while in Massachusetts the courtn 
repud the inchoate riirht of dower in a married woman in 
lier hushand's lands as an interest in the property rather than 
as a mere possihility, and entertain Ktron"; douhts if it may ho 
cut olT while inchoate, hy an aet of the lejrislature.^ 

10 a. In a case in Minnesota an estate in which the hushand 
was seised was conveyeil l>y a jwwer of attorney, in which the 
wife joined, in l>i.')ii. Such j)ower heinjz; inoperative, so far as 
the wife was concerned, an act of the le<rislature was passed 
in IH')!, declarintr all deeds heretofore or liereafter made hy 
hushand and wife under a joint power of attorney, pood. In 
1M()!» the husliand died. It was held that hoth hushand and 
wife heini:: livin<^ when the act was passed, and iier riirht of 
dower Iteinir then inchoate, it had the effect to l)ai' her riudit. 
The huiiruaire of Dillon, J. (U. S. Circuit Court), is, " While 
the ripht remains inchoate, it is, as resjiects the wife, under 
the ahsolute control of the Icfrislature, which may, by general 
enactment, chanjre, ahridjre, or even destroy it, as its judLMuent 
may dictate."^ A recent ca.se in Iowa substantially adojited 
the doctrine of Dillon, J., that the ripht of a wife to he en- 
dowed of the lands of her hu.shand,so long as it is inchoate, is 
suscejttihlo of being enlarged, abridged, or entirely taken away 
by statute, but resti'icted it to the time of alienation of the 
land l)y the husband. The marriage took place in 1859, when, 
by statute, the wife took wiiat would be dower at common 

biinio, 1 N. H. 199, 214 ; Weaver r. Oregp, 6 Ohio St. 547 ; Bnrlwurr. Rnrlxiur, 46 
Me. 9 ; Mi^ee v. Young, 40 Miss. 1(54, 171 ; State r. Fn,-, 4 Mo. 120, 153 ; Brys«jn r. 
Catii{ilK:ll, 12 Mu. 4'JS ; Starr v. Vvtun; 8 Coiiu. 541 ; Magtiirc v. )(nguii\<, 7 Dtuio, 
181. 

> Ruswll r. Ram.sey, 35 111. 372, 373 ; H.nson v. Moore, 104 III. 403 ; citing 
ami .ollowingCfKiley on Const Limitations (5th e«l.) \\ 442. 

a Toiuier v. Cmhain, 4 Fla. 23. 

' I Minn r. Sargent, 101 Mass. 33rt, 340. 

* H.indnll r. Kn-iger, 2 Dillon, 444, 447. The jndgo cites Lucas r. .Sawjrr, 
17 Iowa, 517 ; Satterlee v. Matthuwsou, 2 IVt. 380 ; Watson p. Mercer, 8 Pet 88. 



202 LAW OF EEAL PROPERTY. [BOOK I. 

law. Soon after the marriage, the husband conveyed the land, 
but the wife did not join in the conveyance. In 1862 the 
legislature changed the law, giving widows a fee in their 
dower lands, instead of a life estate. The husband died in 
1870, and the court held that she was entitled to dower as the 
law was in 1859, when the land was aliened by the husband, 
and not under the law of 1862.1 



SECTIOi^ II. 

OF WHAT A WIDOW IS DOWABLE. 

1. Dower in lands, tenements, &c. 

2. Must be of estates of inheritance. 

3. When an excejition in estates for years. 

4. Must be estates which her issue could inherit. 

5. Inheritance must be entire. 

6. Reversions and remainders. 

7. Dower in case of contingent remainder. 

8. Dower after a possibility. 

9. Dower in estates in joint tenancy, 

10. Estates in common. 

11. Estates exchanged. 

12. Partnership estates. 

13. Equitable estates in England. 

14. No dower in tiiists. 

15. No dower in mortgages. 

16. Dower in equitable estates in United States. 

17. Equities of redemption. 

18. Dower in moneys. 

19. Estates subject to liens. 

20. Estates subject to judgments. 

21. Dower in mines. 

22. Shares in corporations. 

23. Wild lands. 

24. Incorporeal hereditaments, 

25. Crops. 

1. In the first place, by the common law the widow is 
dowable of all lands, tenements, or hereditaments, corporeal 
and incorporeal, of which the husband may have been seised 
in fee or in tail during coverture.^ 

1 Moore v. Kent, 37 Iowa, 20 ; Same v. Hutchins, 7 West. Jurist, 491. 

2 2 Bl. Com. 131. 



cii. VII. § 2.] DowEU. 203 

2. Tlio estate of the liushaiul in these must have been one 
of iuheiitauoc, for, as hers is a mere eontinuaiice of the t'stato 
of her husliand, il" his was U'ss than one of inheritance it can- 
not extend beyond his own Hfe.^ Thus where the donee in 
tail (»f an estate is, by statute, math' tenant for life with a fee- 
8ini|»h' in thf lieirs of his liody, iiis wile cannot chiim dower.^ 
And tliis is true even tliou^di he he seised of an estate 

per autre vie, 'and dies before the cestui que cie.^ [*\i')S] 
The estate in such a case became at common law a 
kind of derelict to be seized upon by the first occupant who 
chose to approjiriatc it, since, beiuji; a freeh(jld, it would not 
go to the executors of the tenant, and not beinj^ one of in- 
heritance it did not go to his heirs. Nor dues it make any 
difi'erence in respect of dower that by the statute 29 Car. II. 
such estate goes to the heir of the tenant as special occupant. 
Different provisi(Mi8 are made in different States in respect to 
it; as in New York, if it is not devised by the tenant it goes 
to his executors. In Massachusetts it descends like estates 
in fee.^ 

3. If, therefore, the estate of the husband be a term for 
years, his wife cannot claim dower out of it at connnon law, 
no matter how long it is to continue, nor though it be renew- 
able hjrever. Park mentions the case of a lea.sc for two 
thousand yoars.^ A case in the court of Mississippi was ono 
for ninety-nine years.^ One in Maryland was for ninety-nino 
years, renewable forever. And it was held that it would 
make no difference that the lease contained a covenant to con- 
vey the estate in fee to the lessee ujton request, since such an 
estate did not come within the statute of that State giving 
dower out of lands held by ccjuitable titles.^ In Massachu- 
setts, terms for a hundred or more years are clothed with the 
incidents of fee-simple estates, including the right of dower, 

1 2 Crabb, Real Prop. 132 ; Park, Dow. 47. Soo Gorham v. Danieln, 23 Vt 
600, a ca.se of dower in a hnslmnd'a life estate. 

' Hurrisr. Page, 12 Mo. 358. 

» Park, Dow. 43 ; Gillis r. Brown, 5 Cow. 388 ; Fisher r. Grimes, 1 Sm. k iL 
Ch. 107. 

* Pub. Stat. Mass. c. 125, § 1. .See p. •94, n. 5. 

» Park, Dow. 47. « Waiv v. Washington, 6 Sm. k M. 737. 

» Spaugler v. Stanler, 1 Md. CL Dec. 36. 



20-1 LAW OF REAL PROPERTY. [BOOK I. 

SO long as fifty years of the term remain.^ But in Connecti- 
cut, an estate for nine hundred and ninety-nine years in 
a husband does not give his wife a right of dower therein,^ 
although in anotlier case, for the purposes of taxation, such 
an estate has been treated as a fee.^ 

4. The inheritance, moreover, must be such an one as the 
issue of the wife might by possibility take by descent.* This 
relates to the question whether her issue could inherit, if she 
had any, and not to her physical capacity to bear children. 
As where an estate was given to A and the heirs of his body 
begotten of his wife B. Here, according to Coke, 
[*154] though B were * an hundred, and A but seven years 
old, B would be entitled to dower, whereas, if B died 
and A married again, his second wife, though she may have 
borne him children, could not claim dower.^ 

6. The inheritance, besides, must be an entire one, and one 
of which the husband may Iiave corporeal seisin, or a right to 
such seisin during coverture.'' 

6. If, therefore, tlie husband have only a reversion or re- 
mainder after a freehold estate in another, though it be in fee, 
it will not give his wife a right of dower therein, unless by the 
death of the intermediate freeholder, or a surrender of his 
estate to the husband, the inheritance become entire in the 
husband during coverture.'^ And if the husband sell his re- 
version during the continuance of the particular estate for life, 
his wife thereby loses all claim to dower therein.^ But if the 
intermediate estate, subject to which the husband has a rever- 

1 Pub. Stat. c. 121, § 1. 2 Goodwin v. Goodwin, 33 Conn. 314. 

8 Bvainard v. Colchester, 31 Conn. 407. 

4 Lit. § 53. 5 Co. Lit. 40 a ; 2 Bl. Com. 131 ; Tud. Cas. 45. 

6 Tud. Cas. 43 ; Apple v. Apple, 1 Head, 348. Aliter in Kentucky, Gen. Stat. 
1873, c. 52, art. 4, § 4. 

T Tud. Cas. 43 ; Perkins, § 337 ; Park, Dow. 57, 74, 76 ; 2 Crabb, Real Prop. 
132, 158 ; 1 Atk. Conv. 256 ; 4 Kent, Com. 39 ; Duncomb v. Duncomb, 3 Lev. 
437 ; Eldredge v. Forrestal, 7 Mass. 253 ; Shoemaker v. Walker, 2 S. & R. 554 ; 
Dunhams. Osbom, 1 Paige, 634 ; Robison v. Codman, 1 Sumn. 121, 130; Moore v. 
Esty, 5 N. H. 479 ; Otis v. Parshley, 10 N. H. 403 ; Green v. Putnam, 1 Barb. 
500 ; Arnold v. Arnold, 8 B. Mon. 202 ; Fisk v. Eastman, 5 N. H. 240 ; Beards- 
lee V. P.eardslee, 5 Barb. 324 ; Durando v. Durando, 23 N. Y. 331 ; Brooks v. 
Everett, 13 Allen, 457. 

* Apple V. Apple, 1 Head, 348 ; Gardner v. Greene, 5 R. I. 104. 



en. Tii. § 2.] Downn. 205 

sion or rcmaindLM* in fee, be a term for years or chattel intorcst, 
the wife will be entitled to dower in the fee.* And where 
there was a devise to executors to pay debts, and aft«'r to (he 
testator's son in tail, it was hchl that the devise to the execu- 
tors was of a ihatlel interest, ami that the widf»w of the son 
was entitled to dower sulijeet to the jtayinent of the testator's 
debt.- Nor will it make any dilTerenee with rejrard to a 
widow's riirht of dower that the husband, before niarriai^e, 
converted, by his own act, a j)resent estate in fee into one for 
life or into a reversion. She could not claim dower though 
the deed of the husband had never been recorded.^ If the 
husband is seised of a life estate in lands and accjuire the 
innnediate reversion or remainder in fee expectant 
upon its determination * they will, upon a familiar [•loo] 
principle of law that a greater will mer«re a less estate 
if they unite in one person by the same risiht at the same time, 
become one entire estate of inheritance, and consequently his 
wife would be entitled to dower out of it if she survive him.'' 

7. If now there were interposed between this life estate and 
the reversion or remainder, a continirent remainder, as, for in- 
stance, estate to A for life, remainder in fee to the oldest son of 
B who has no son yet born, remainder to A in fee, the contingent 
remainder in B would be defeated by such merger, because it 
is a principle of the common law that if the i)articular or pre- 
vious estate of freehold on which the contingent remainder 
depends, is destroyed or determined before such remainder 
has become vested, it fails for want of sui)port, and is conse- 
quently defeated, and the life estate, in the supposed case, is 
swallowed ui> and lost in the remainder in fee, and the reason 
is, that a contingent remainder is not an estate. Tlie conse- 
quence in such a case would be, that the widow of such 
tenant for life would be entitled to dower for the reasons 
above stated.^ Though the rule is as above stated, there is 

» 2 Crabb, Real Prop. 133, 158 ; Park, Dow. "7 ; Bates r. Bates, 1 1^1. Ilnvm. 
826. 

« Hitchens r. Kitchens, 2 Vtm. 403 ; Perkins, § 335 ; 2 Crabb, Real Prr.p. 
150 ; Tud. Cas. 43. 

• Blooil c. Blood, 23 Pick. 80. « B.-ard8le« r. Beanlslee. 5 Barb. 324. 

» Wms. Real Prop. 235 ; Hooker c. Hooker, Cas, temp. HarJw. 13 ; Purcfoj 
V. Rogers, 2 Sauud. 3&0. 



206 LAW OF REAL PROPEETY. [bOOK 1. 

this exception, if the several interests, namely, the life estate, 
the contingent remainder, and the remainder or reversion in 
fee be created or raised by the same act, deed, or devise, the 
law will not, by applying the technical rule of merger, allow 
the contingent remainder to be destroyed by the life estate 
and remainder being united in one person. But whenever it 
vests by the contingency happening, which gives it vitality as 
an estate, the life estate and remainder will open and let it in. 
Thus, suppose A by will devises to his son and heir an estate 
for life, with a contingent remainder to the heirs of B in fee, 
and either expressly devises the remainder to his son or makes 
no disposition of it and it descends as a reversion to his son 
as heir. Here the son has a life estate and a reversion or a 
remainder in fee without any estate interposed, and if he had 

acquired it by grant or descent from some one else, it 
[*156] * would have merged the life estate, extinguished the 

contingent remainder, and given his wife dower. But 
as he takes under the same will which creates the contingent 
remainder, he shall not be at liberty to give effect to the testa- 
tor's intention, in one part, and defeat it in another, and 
merger will not take place, and consequently his wife cannot 
claim dower.i When, therefore, as in tlie last case, the con- 
tingent remainder is not defeated by law, its interposition 
between the life estate and reversion prevents the inheritance 
in the husband being an entire one, which is necessary in 
order to give dower.^ * 

* Note. Mr. Park, however, intimates that in such case there would be such 

a union between the life estate and reversion as to give the wife of the holder 
dower until the contingent remainder vests, and the life estate and reversion open 
to let it in. Park, Dow. 72. And other writers agree with Mr. Park in the views 
he suggests. 2 Ptoper, Hus. & Wife, 362-365 ; 2 Crabb, Real Prop. 160 ; 1 Atk. 
Conv. 256 ; Tud. Cas. 43. But much of the nice speculation upon the extinction 
of contingent remainders by merger in similar cases is done away with in Eng- 
land by Stat. 8 & 9 Vict. c. 106, § 8, saving such remainder from being defeated 
by the determination of the particular estate on which it depends before it has 
vested. "Wms. Real Prop. 279. And such are the statutes of Massachusetts, 
Maine, New York, Indiana, and Missouri, Kentucky, Texas, Virginia, Michigan, 
Minnesota, and Wisconsin. And see post, 2, *266. Id. note by Rawle. 

J Hooker v. Hooker, Cas. temp. Hardw. 13 ; s. c. 2 Barnard. 200 ; Id. 380 ; 
Plunket V. Holmes, T. Raym. 30 ; Lewis Bowles's Case, 11 Rep. 80 ; Park, Dow. 
65-70 ; Feame, Cont. Rem. 343, 344 ; Crump v. Norwood, 7 Taunt. 362 ; Tud, 
Cas. 43. '^ 1 Atk. Conv. 256. 



rn. VII. ^ 2.] DOWER. 207 

8. The foropoing positions are in harmony witli tlio dortrinn 
thiit the interposition of a jxjHuif'iliti/, not intcnilin^' tlicichv 
what is unilerstood l>y the hiw to l»e a condition thiit tlic pres- 
ent estate of thf hiisliaml sh<iulil 111' prevented by the terms of 
its limitation ti-om liecominir an estate of inheritance, defeats 
the ri;xlit of dower in his wife, so lonir as that jtossi- 

bility • exists. Thus, thouirh an estate in joint t€n- ["I'^^T] 
ancy he, in terms, one of inheritance in each of the 
joint tenants, yet the possibility, so lonji; as the joint owner- 
sliip snbsists,that the present estate of each may be completely 
defeated by his dyinir in the lifetime of the other, prevents the 
right of dower attaching in the wife of either except the actual 
survivor.^ i^o where the tenant for life leases his estate to 
the remainder-man in fee for the life of the lessee, the possi- 
bility that the lessor may survive the lessee, and thus have a 
reversion in fact after the death of the lessee, prevents such a 
union or entirety of the inheritance and freehold in the remain- 
der-man as to give his wife d<jwer.- And perhaps a still 
stronger case is reported in Levinz : W I) was tenant for 
life, remainder to J S antl his heirs for the life of W I), re- 
mainder in tail to W D. It was held that the possibility that 
W D might forfeit his life estate, and the remainder to J S 
take effect, so far interposed between the life estate in W 
P and the inheritance in him in tail as to prevent his wife 
from claiming dower, he having died in the life of J .S.^ It 
should, however, be stated that Mr. Fearne, in the above case, 
regards the interest of J S as an intervening vested estate, 
and not a possibility.^ 

9. From the nature of the estate of joint tenants, no right 
of dower attaches in favor of either of the tenants, which his 
wife can enforce, unless her husband siirvives the others.^ In 
many of the United States the principle of survivorship among 
joint tenants is abolished by statute, and consequently this 

1 Park, Dow. 72. 

2 Park. Dow. 58 ; 2 Rolle, Abr. 497. 

« 1 Atk. Conv. 256 ; Park, Dow. 73 ; Duncomb r. Duncomb, 3 Lev. .137. 
♦ Fcame, Cont. Rem. 349. 

' Park, Dow. 88 ; Co. Lit. 87 b : Mayburry r. Bricn, 15 Pet. 21 ; 2 Cmbb, 
Real Prop. 134 ; Broughton v. Randall, Cro. Eliz. 503. 



208 LAW OF REAL PROPERTY. [BOOK I. 

disability of being endowed is removed on the part of their 

wives.i * 
[*158] * 10. The estate of a tenant in common is subject 

to dower as if held in severalty, but it will be set off 
in common, unless partition be made during the life of the 
husband between the tenants, in which case the dower of each 
tenant's wife is limited to the portion set apart to him.^ The 
wife of a tenant in common holds her inchoate right of dower 
so completely subject to the incidents of such an estate, that 
she not only takes her dower out of such part only of the com- 
mon estate as shall have been set to her husband in partition, 
but if, by law, the entire estate should be sold in order to effect 
a partition, she loses by such sale all claim to the land, although 
no party to such proceeding. But, as will be shown hereafter, 
she is, in some cases, allowed in equity to share in the proceeds 
of such sale.^ 

11. Where a husband exchanges lands, using the term in 
its strict technical meaning,* his wife may have dower in either 
of the estates, but she cannot claim it in both, though the 
husband has been seized of both during coverture.^ In this 
country the doctrine of exchanges of lands has prevailed to 
but a limited extent. It is recognized by the statutes of New 
York, Kentucky, Wisconsin, and Arkansas, and some other 
States,^ but it is limited to cases of exchanges of equal inter- 

* Note. — Upon this doctrine of joint tenancy were based several of the 
devices formerly resorted to in order to prevent the right of dower attaching upon 
lands when purchased. Tud. Cas. 46. 

1 In North Carolina, Weir v. Tate, 4 Ired. Eq. 264 ; South Carolina, Reed v. 
Kennedy, 2 Strobh. 67 ; Kentucky, Davis v. Logan, 9 Dana, 185. See Rawle's 
note to Wms. Real Prop. 132. See note to Joint Tenancy, post. 

'^ Lit. § 44 ; Perkins, § 310 ; Park, Dow. 42 ; Tud. Cas. 46 ; Reynard v. 
Spence, 4 Beav. 103 ; Potter v. Wheeler, 13 Mass. 504 ; Wilkinson v. Parish, 3 
Paige, 653 ; Totten v. Stuyvesant, 3 Edw. Ch. 500 ; Davis v. Bartholomew, 3 
Ind. 485 ; Lloyd v. Conover, 25 N. J. 47, 52. 

8 Lee V. Lindell, 22 Mo. 202. See also Warren v. Twilley, 10 Md. 39 ; Wea- 
ver V. Gregg, 6 Ohio St. 547. 

4 See Termes de la Ley, 319 ; 2 Bl. Cora. 323. 

6 Perkins, § 319 ; Co. Lit. 31 b. 

6 Stevens v. Smith, 4 J. J. Marsh. 64. In New York, Illinois, Wisconsin, 
and Oregon, and several other States, if she does not elect within one year to take 
dower in the lauds given in exchange, she is deemed to have elected to take her 



cii. VII. § -2.] DowEii. 209 

ests. It they are iinr(|ual, the cast? coiucs witliin tln' (jiflinary 
transftTs of real estate, ami the riL^lits ot dtnvrr utturli jiccijnl- 
iugly.' So it has Iteen held in ^hiiur, ihat if two tt'iiants in 
CDiuinon divide their estates by simply exeeutiiiji; mutual re- 
leases, the wife of one of them shall not take dower in l)oth 
paieels.'^ But if the exehanjre wuh of une(|ual parts, one ten- 
ant payinir the dilTerenee in value to the other, it takes the 
charaeter of an ordinary transfer of lanils, and (he widow may 
claim dower in both parcels.^ And it was held in New llam|>- 
shire that where the owners of lands a<rreed to cxchaiif^o lands, 
which was done by each executinjj: to the other a deed of his 
land in usual form, the wives might claim dower in both 
parcels.^ 

12. Whether the widow of a deceased |tartncr sliall be en- 
titled to dower in lands purchased and held Ijy the 
partners has * frequently been discussed, and it is ['l;";'.'] 
not easy to reconcile all the cases, especially the early 
ones, with the law as now understood, nor will it be attemi»te(l 
here.** Thouirh it may sumetimcs depend ujion the eliaraeter 
which the jjarties intend to <::ivc to lands held by them for 
their j(jint and mutual benelit, yet it may be laid down as a 
general proposition, that if real estate is purchased by two or 
more j)artners, and j)aid for out of partnershij) funds, and held 
for partnership purjjoses, though it will be regarded in law as 
held l)y the several partners as tenants in common, yet in 
ccpiity it is so far regarded in the light of personalty as to be 
subject, under an im|>lied trust, to be sold and a|iplied if 
necessary for the payment of the partnership debts. Nor can 
the widow of one of such partners claim dower out of any 
|)art of such estate, except such as may not be required for 
the payment of the partnership del)ts. Of that she may claim 
her dower both at law and in e(piity.'^ It is, indeed, intimated 

dowcr in those received in exchanffo. 1 SUit. nt Ijirgc, p. 691 ; 111. Rev. St. 1874, 
p. 425; Wi.sc. Rev, St 1858, c. 8», § 2 ; On-Ron, Sta. 1855, p. 405 ; Minu.'sota, 
SUt. ISGfi, p. 3G0 ; Arkansjus, Dig. 1858, c. 60. § 3. 

• Wilcox V. llandall, 7 Bjirb. 633. ^ Moslier r. Mosh.r. 32 M<\ 412. 

• Id. * Ca-s-H c. Thompson, 1 N. H. 65. 
' See Sumner r. Ilampaon, 8 Ham. 328. 

• Greene r. Greene, 1 Ham. 250 ; Sumner v. Hampson, 8 llnm. 3^5 ; Bum.'ido 
V. Merrick, 4 Met. 637 ; Dyer r. Clark, 6 Met 562 ; Howanl r. Pric-at, 5 Met 652; 

VOL. I.— 14 



210 LAW OF REAL PROPERTY, [bOOK I. 

in one case above cited,^ that the character of personalty may- 
be stamped upon real estate held by a copartnership by an ex- 
press or implied agreement indicating such intention. But 
this could only be done in equity .^ And where land was 
bought by several for purposes of speculation, and the title 
taken in the name of one as trustee for all, with an agreement 
that it should be sold and the proceeds divided, the court 
regarded it as personalty, and, upon the death of one of 
the cesfuis que trust held that it did not descend to heirs 

or give his widow a claim of dower.^ Although it 
[*160] would seem that w^ithout such * agreement the widow 

of the cestui que trust would be entitled to dower in 
the estate so held> The taking the title in the name of one 
of several copartners does not seem to make any difference in 
this respect, unless, as was done in one case, the partner so 
holding the title had, by agreement, been charged by the part- 
nership as debtor for the purchase-money.^ But it is only 
wdien and so long as they constitute a part of the partnership 
property that lands are exempt from the claim of dower, for 
where two parties engaged in buying and selling lands and 
town lots, taking and giving deeds as tenants in common, and 
lands were sold accordingly in the lifetime of both partners, 
it was held that by such sale they were withdrawn from the 
joint stock, and that, to the claim for dower by the widow of 
one of the partners, the tenant could not avail himself at law 
of the fact that the land had been a part of the joint stock of 
the former owners.^ And where the purchase and holding of 

■Woolridge v. "Wilkitis, 3 How. Miss. 360 ; Diihring v. Duhring, 20 Mo. 174 ; 
Richardson v. "Wyatt, 2 Desauss. 471 ; Pierce v. Trigg, 10 Leigh, 406; Goodburu 
V. Stevens, 5 Gill, 1 ; s. c. 1 Md. Ch. Dec. 437 ; Markham v. Merrett, 7 How. Miss. 
437. But see Smith v. Jackson, 2 Edw. Ch. 28 ; Hale v. Pluniraer, 6 Ind. 121 ; 
Loubat V. Nourse, 5 Fla. 350 ; Bopp v. Fox, 63 111. 540 ; Post, *423. If, there- 
fore, the firm is insolvent, she can get nothing. Willet v. Brown, 65 Mo. 138. 

1 Goodbum v. Stevens, 1 Md. Ch. Dec. 437. 

2 See Markham v. Merrett, 7 How. Miss. 437, and the dictum of the Vice- 
Chancellor in Smith v. Jackson, 2 Edw. Ch. 36, in respect to the above cited case 
of Greene v. Greene, 1 Ham. 250. 

8 Coster V. Clark, 3 Edw. Ch. 428. * Hawley v. Jaraes, 5 Paige, 451-457. 

6 Story, Part. §§ 92, 93 ; Collyer, Part. 82 ; Smith v. Smith, 5 Ves. 189 ; 
Park, Dow. 106. 

<" Markham v. Merrett, 7 How. (Miss.) 437. 



en. VII. § 2.] DOWER. 21 1 

land by jiersons who wcro partiuTs was not dono with nn in- 
tention to throw it into the fund as jiartnership stock, l)iit was 
ctjUateral to tlieii' |iartnershi|) l)usin('ss, an<l as a means ol car- 
rying that on, it was liclil that tlic widow ol" one ol" the pai-t- 
ners was not e.xrliidcil from lier claim to dower. 'J'lius wlirri» 
W and C airreed to purchase two hun(h'('d acres of hiiid, on 
which was a mill, and, liaviuL'' done so, c(»mmrncc(l and cai'iicd 
on tlie business of millintr as partners upon the i)remiscs for 
several years, it was held that as to the I'cal estate they were 
tenants in common, and their wives cntitlccl to dower.' * 

13. The law as to dowei' out of e(pntahle estates was, until 
the late d(nver act, dilferent in England from the law 
as it generally * prevails in this country. All the [*101] 
early authorities there, both at common law and in 
equity, held that a widow was not dowablc of the interest of a 
trustee or cestui que trust in lands, and this restriction was 
extended to an equity of redemption, although an elTort was 
made more than once by eminent chancellors to extend the 
right of dower in this to tlu^ widow of him who held it, the 
estate of the husband in such case not being deemed a legal 
e.state, if the mortgage were in fee, and not for years only.- 
And so far was this doctrine cari-ied, that if a man before 
marriag(> conveyeil his estate ])rivately without the knowledge 
of his wife, to trustees in trust for himself and his heirs in fee, 
that would prevent dower. " So if a man purchase an estate 
aftei- marriage, and takes a conveyance to trustees in trust for 
himself and his heirs, that will put an end to dower." ^ And 
though the changes in the law in this respect have in late 
years been so great that the matter has become one of little 

* Note. — It is hardly necessary to remiiul the reader of tin- difTereiit mediums 
through which tlie subject of laud bi-ing regarded as in-rsoualty for j>artiiershiji 
purposes is viewed by courts of eijuity and those of common law. But it should 
be borne in mind in examining the rases relating to this point. 

» "Wheatley v. Calhoun, \'2 Leigh, 264 ; Hale v. Plummor, 6 Ind. 121. 

2 E.j. Cas. Abr. 384. jd. 9 ; 2 Crabb, Heal Prop. 161 ; 4 Kent, Com. 43 ; Tu.l. 
Cas. 46 ; 1 Roper, Hus. & Wife, 354-3.58 ; Dixon r. Saville. 1 Bro. C. C 326 ; 
D'Arcy V. Blake, 2 Sch. & Lef. 387 ; Mayburry v. Bricn. 15 Pet. 38. The case 
of Banks v. Sutton, 2 P. Wms. 700, in favor <>f allowing dower in such casoa, wac 
oveiTuled, and generally denied to be law. Park, Dow. 138 ; 4 Kent Com. 43. 

« Co. Lit. 20S 0, n. 105. 



212 LAW OF REAL PROPEETY. [BOOK I. 

consequence, it may be well to notice here the distinction that 
for a long time obtained between the right of curtesy and 
dower in equitable estates, the husband of a cestui que trust, 
if of the inheritance, being entitled to curtesy, but tlie wife of 
similar cestui que trust being denied dower. This seems to 
have grown out of the attempt of the court of chancery in 
England to build up a system of trusts with the incidents of 
legal estates out of the old system of uses, which had their 
existence in chancery alone, and which it was attempted to 
suppress by the Statute of Uses, 27 Hen. VIII. c. 10, and the 
nature of which has been heretofore explained.^ A widow 
was never dowable of a use, and it had come to be not an in- 
frequent mode of evading the right, to have lands conveyed 
so as to be held by another to the use of the husband, instead 

of being conveyed directly to himself. ^ The object 
[*162] of the Statute of Uses was to * do away with this 

double ownership of lands, and to restore the tenure 
and title of these to their original simplicity at common law. 
But the ingenuity of chancery courts and chancery lawyers 
ere long discovered a mode of evading the spirit of the law, 
by subtle refinements and distinctions in construing the stat- 
ute, and of building up a system of equitable estates under 
the name of trusts, whereby the legal seisin and estate was 
in the trustee, and the beneficial interest or equitable estate in 
the cestui que trust.^ In carrying out this measure, it was the 
study and aim of chancery to give to equitable estates, as near 
as might be, the incidents and attributes of legal estates at 
common law. It was accordingly understood and assumed 
that the incidents of curtesy and dower attached to equitable 
as to legal estates at the common law, and that construction 
was actually applied in cases of curtesy. But when it was 
proposed to extend it to dower, it was ascertained that so 
many estates in the kingdom had been settled in the form of 
trusts, for the very purpose of avoiding dower, that it would 
produce very great confusion in titles if widows should be 
made dowable of such estates,* and an exception was made in 
this respect, which continued till the late dower act of the 

1 Ante, p. *55. 2 Perkins, § 349. 

8 Wms. Real Prop. 134-136. * D'Arcy v. Blake, 2 Sch. & Lef. 3S7. 



rii. VII. § 2.] DOWKR. 213 

3 and I \\'iii. I\'. c. 1(>"), rcinovcil tins anotniily as regards 
dowel'.' 

11. Hut iioithor in Enjrlaiid imr in this ('oiintry can the 
widow of a trustee have dower, altliouLdi he holds the lejral 
seisin and estate.'-^ But if the trustee accpure the cfpiitahle 
estate, the latter mer<,'es in the letnil estate of the trustee, and 
Ids wife hecomes entitled to dower.-' Thou^rh it is sugti^ested 
hy Judu'-e Kent, that so far as the hnshand has a henefieial' in- 
terest in the trust estate, his wife may he endowed.* And sr> 
far as the letral and trust estates arc coextensive, the cquitahle 
nu'rjjfes in the lethal estate and tnves the wife dower.'' 
]Jut where the husband * before nnu'riaL^c crave bond [*1<I;>] 
to convey his land, he was regarded in eijuity as 
trustee of the vendee, and, havinir married, his wife was denied 
dower.*' So where the husband had a <rencral [tower of ajv- 
pointmcnt to uses of an estate held in trust for that purpose 
by another, his wife was not dowablc thereof, he havini; made 
the appointment, although until the appointment made, or 
in default thereof, the estate was to be held to his use in 
fee.' 

15. The wife of a mortgagee cannot claim dower in the 
mortgaged estate until the same is foi-eelosed.^ And even if 
the husband enters to foreclose the mortgage, and then con- 
veys his interest, and the mortgage is foreclosed in the hands 
of his grantee, his wife will not be entitled to dower.'** In this 

1 1 Speiice, Eq. Jur. 501 ; 1 Atk. Conv. 278. 

2 Noel V. Jevon, Freem. Ch. 43 ; Hill, Trust. 269 ; Tud. Cos. 47 ; 2 Eq. Cos. 
Abr. 383 ; Derush r. Brown, 8 Ham. 412 ; Greene v. Greene, 1 Ham, 249 ; IJart- 
lett r. Gouge, 5 B. Mon. 15'2 ; Kobison v. Codman, 1 Sumn. 121 ; Cowman i". 
Hall, 3 Gill A: J. 398 ; Powell v. Monson, 3 Mason, 364 ; Cooper v. Whitney, 3 Hill, 
95 ; Brooks v. Everett, 13 Allen, 458. So by statute in New Jersey. Kev. 1677, 
p. 3-24. 

* Hojikinson v. Dumas, 42 N. H. 303, 306. 

* 4 Kent, Com. 43, 46 ; Prescott v. Wnlkcr, 16 N. H. 340, 343, 

6 Dean v. Mitchell, 4 J. J. Marsh. 451 ; Hill, Trust. 252, n.; Coster r. Clarke, 
3 E.lw, Ch, 428. 

« Dean v. Mitchell, 4 .1. J. Marsh. 451. 
^ Kay r. Pung, 5 B. & A. 561. 

* Tud. Cas. 47 ; 4 Kent, Com. 43 ; 4 Dane, Abr. 671. So by statute also in 
N. Y., 1 Rev. St. 740, § 7 ; HI. Rev. St. 1833, c. 41, § 6 ; Ark! Dig. SL 1874, 
§ 2216. 

» Foster v. Dwinel, 49 Maine, 41. 



21-1 LAW OF REAL PROPERTY. [bOOB: L 

respect, estate in the lands remains in the mortgagor while the 
mortgagee has a security only in it.^ 

16. As a general proposition, the laws of the United States 
may be said to coincide with those of England, as to dower 
in equitable estates, under her present Dower Act, although it 
is not uniform in all the States, and in some the ancient doc- 
trine of the common law prevails. Thus, it has been held 
in the District of Columbia, a wife is not dowable of an equity 
of redemption.^ So, in Maine, the wife of a cestui que trust is 
not dowable.^ But in Maryland she would be dowable if the 
husband hold the equitable estate at his death. And the law 
is the same in New York and Kentucky, and in North Caro- 
lina, Iowa, Tennessee, and Arkansas.* In Illinois, the widow 
of one having an equitable estate in fee in land, of which the 
husband receives the rents and profits, is entitled to dower out 
of the same.^ In Pennsylvania, also, the wife of a cestui que 
trust is dowable.^ And the law is the same for both legal and 
equitable estates in this respect. Dower belongs to both.' In 
Virginia, West Virginia, and Alabama a wife may have dower 
out of a complete equitable estate of the husband, if it be such 
that a court of equity would enforce the conveyance of the 
legal estate.^ Other cases of equitable estates, where, by local 

law, dower has been allowed, might be enumerated, 
[*164] as in * Kentucky, Ohio, and Illinois, where a widow 

is dowable of lands contracted for by the husband, 
but not conveyed till after his death ; but it is not deemed ex- 
pedient to load these pages with citations of authorities in the 
attempt to explain or define local enactments.^ In Iowa, when 

1 Crittenden v. Johnson 11 Ark. 94. 

2 Stelle V. Carroll, 12 Pet. 201. ' Hamlin v. Hamlin, 19 Me. 141. 
* Bowie V. Berry, 1 Md. Ch. Dec. 452 ; Miller v. Stump, 3 Gill, 304 ; Hawley 

V. James, 5 Paige, 318, 452 ; Lawson v. Morton, 6 Dana, 471 ; Thompson v. 
Thompson, 1 Jones (N. C. ), 430 ; Lewis v. James, 8 Humph. 537; Earnests. 
Gay, 7 Iowa, 26 ; Gully v. Ray, 18 B. Mon. 107 ; Kirby v. Vantrece, 26 Ark. 
368 ; Tate v. Jay, 31 Ark. 576. 

5 Atkin V. Merrill, 39 HI. 62. « Shoemaker v. Walker, 2 S. & R. 554. 

7 Dubs V. Dubs, 31 Penn. St. 149 ; Mershon v. Duer, 40 N. J. Eq. 333. 

8 Rowton V. Rowton, 1 Hen. & M. 92 ; W. Va. Rev. Stat. 1879, c. 70, §§ 2, 3; 
Gillespie v. Somerville, 3 Stew. & P. 447. 

9 Robinson v. Miller, 1 B. Mon. 93 ; Smiley v. Wright, 2 Ohio, 512 ; Daven- 
port V. Farrar, 1 Scam. 314. 



en. VII. § 2.] DCJWKH. L'l."* 

the coiniuon-liiw ri^'^lit of dower existed, slie had not a ri).dit of 
dower in lands to wliich lier husband liad aciiuiied u |»re-enj|»tive 
right under tho United States.* IJutnow, in thi« .State, and in 
Kansas, where she takes an estato in fee, this, by statute, in- 
chuh's eijuitabh! as well as legal estates.'- And such woiUd be 
the rule probably in other States where her share is u fee,*^ or 
whore she tiikes an ab.solute share of the community property.* 
In Massachusetts, as a general proposition, the common law 
as to dower in ecpiitalde estates [>revuils. lUif, by statute, 
where there is an agreement to convey lands, ami tjic party 
to whom the Conveyance is to be made dies, provision is made 
whereby any person having an interest to compel performance 
may procure it to be made. And it has been luld thai the 
widow of such contracting party may claim dower, through 
such decree, in the land conveyed.'' But this applies only to 
cases where the contract has been performed on the part of the 
husl»and in his lifetime.'^ Where, however, a husbancl had bid 
off an estate sold by order of the court of e(iuity,and had paid 
at the time of his death a part of the j)urchase-money, but had 
received no deed, it was held that his widow might have dower 
out of the estate, she contributing y)ro rata towards the balance 
of the iiurehase-money.' 

17. With equities of redemption, also, the principle of regard- 
ing them as legal estates and subject to dower so generally 
prevails in this ciMintry, that to cite all the cases in which the 
doctrine is stated or conlirmcd would l>c occupying room that 
might be more usefully emj)loyed. It is, therefore, jiroposed 
only to give from the numerous authorities that arc found in 
our reports, one or two in addition to those already cited, in 
each State, most of them relating to dower in ecpiities of re- 
demption, but some of them to equital)le estates generally. 
And it may be remarked, in passing, that the law is the same 

1 Bowers v. Keesecker, 14 Iowa, 301. 

2 Iowa, Rev. Co«le ISSO, § '2 J 40 ; Kansas, Comp. L. 1670, § 2109. 

' Imliaiw, Minnesota, MisMssippi, Montana, and Wyoming ; Statutes ante, 
•HP, n. 

* California, I^ouisiana, Tfxas, Arizona, and Nevada ; Statutes ante, 'H9, n. 

* Reed v. Whitney, 7 Gray, 533 ; Pub. Stat. c. 151, 8. 2, § 3. 
« LoWell V. Hayes, 4 Allen, 187. 

"> Church V. Church, 3 Sandf. Ch. 434. 



216 LAW OF REAL PEOPEETY. [BOOK I. 

whether the estate is mortgaged before coverture or during 
coverture, if the wife join in the mortgage.^ 

18. In many cases besides, courts of equity allow dower out 
of money which is the proceeds of the sale of real estate, in 
place of assigning it out of the real estate itself, where the 
sale has been made by order of court or by the wrongful act 

of an agent or trustee, and the parties interested have 
[*165] elected to * affirm the sale.^ So, where land in which 

a widow has a right of dower is appropriated, under 
the exercise of eminent domain, for public uses, and a sum of 
money is awarded for such taking, she may claim and have as 
dower out of such money one third of the net income of the 
same.^ In England, under like circumstances, the court 
awarded her as her dower a sum properly estimated out of the 
corjnis or principal of the money paid for the land taken, instead 
of annual payments.^ And where a mortgage in which the 
wife had joined was foreclosed by a sale of the premises, and 
a surplus remained after satisfying the mortgage debt, she 
was held entitled to dower out of such surplus.^ It will be 
necessary to recur to this subject again when speaking of 
assigning dower in equity, but the following cases may be 
referred to, to illustrate these points.^ 

1 Mayburrj' v. Brien, 15 Pet. 38 ; Simonton v. Gra)', 34 Me. 50 ; Gibson v. 
Crehore, 3 Pick. 475 ; Titus ■;;. Neilson, 5 Johns. Ch. 452 ; Montgoraerj' v. Bruere, 
5 N. J. 865 ; Taylor v. McCrackin, 2 Blackf. 260 ; Heth v. Cocke, 1 Eand. 
344; Stoppelbein v. Shulte, 1 Hill (S. C), 200 ; Fish v. Fish, 1 Conn. 559; 
Wooldridge v. Wilkins, 3 How. (Miss.) 360 ; Mclver v. Cherry, 8 Humph. 713 ; 
Thompson v. Boyd, 21 N. J. 58 ; Mills v. Van Voorhis, 23 Barb. 125, 136 ; McAr- 
thur V. Franklin, 15 Ohio St. 492, 16 Id. 193 ; Ark. Dig. St. 1874, §§ 2213, 
2214. While in Georgia the widow takes dower by statute irresjjective of the 
lien of the mortgage or vendor. Code 1873, § 1769. 

2 Chaney v. Chanej% 38 Ala. 35, 38 ; Williamson v. Mason, 23 Ala. 488 ; 
Schmitt V. Willis, 40 N. J. Eq. 515. 

8 Bonner v. Peterson, 44 111. 253. < FcC Hall's Estate, L. R. 9 Eq. 179. 

6 Bank of Commerce v. Owens, 31 Md. 320. 

* Where the foreclosure takes place after the hu-sband's death, it is perhaps un- 
questioned that his widow takes dower in the surplus. Titus v. Neilson, 5 Johns. 
Ch. 452 ; Hartshorne v. Hartshorne, 2 N. J. Eq. 349 ; Hawley v. Bradford, 
9 Paige, 200 ; Thompson v. Cochran, 7 Humph. 72 ; Chaffee v. Franklin, 11 R. I. 
578 ; Willettt). Beatty, 12 B. Mon. 172, 174; Matthews v. Duryee, 45 Barb. 69. 
Where before the husband's death, it has generally been held that the inchoate 
right of dower would be protected. Denton v. Xanny, 8 Barb. 618 ; Vartie v. 
Underwood, 18 Barb. 561, 564. And though these cas£s were doubted and such 



CII. VII. ^ li.] DOWKR. 217 

10. Akin to an ccjnity of rodcmi)tion,nn(l govcrnod in many 
rcsports i)y tlic same rule as to dower, is the inlen-st which 
the liushand has in hinds for which tin- purchase-monry has 
not l)e«'n ]iaid, in Ihosc States where the vendor of hind« 
lias a lien upon them for the juu'chase-money. The widow is 
entitle<l to share in the sin'plns left after discharjrinjx such 
lien, as will he e.\j)lained when the siihjcct of assifrnini; dower 
in eipiity is considered.' And in Kentucky it has heen hehl 
that a widow can oidy claim dower suhject to lien of the 
huilder, whom her liushand has employed to erect huildingH 
on the land.'- lUit (he law in this resjiect is otherwise held in 
Massachusetts, Illinois, and Indiana, in which .States similar 
questions have hccji raised.^ 

20. And where there was a judfrment outstan<ling at the 
time of the marriairc, which l)y the law of (he State constituted 
a lien uj)on the land, (he widow can only claim her dower in the 
land, suhject to such lien,* unless (he judgment happen to ho 
entered up the same day with (he marriage, in which case 
the dower right olitains (he precedence.'' 

-1. A widow is entitled to dower in mines helonging to her 
liushand in fee, which may have heen ojjened during his life- 
time, whether widiin his own land or (hat of another.*^ 
And * this extends to quarries of slate and other stoue ; [•106] 

protection refused in Ncwhall r. Lj-nn Sav. Bk., 101 Mass. 428, perJiaps on account 
of want of equity jxiwer, they have been uniformly followed in New York, Mills v. 
Van Voorhis, 23 Barh. 125, 134, 136 ; 8. c. 20 N. Y. 412 ; Klmendorff r. Lockwood, 
4 Ijins. 393, 396 ; Raynor v. Kaynor, 21 Hun, 36, 40 ; Matthews v. Duryee, 4 
Keyes, 525 ; and see Jackson v. Edwards, 7 Paige, 386, 408 ; and in other States, 
De WoHfr. .Muq)hy, 11 H. I. 630 ; Keith v. Trapier, 1 Bailey, E4. 63 ; VnvlanJ 
V. Jacobus, 19 N. J. E<\. 231 ; Unger v. Leiter, 32 Ohio St. 210. In Virginia and 
Kentucky the right is given by btatute ; Robinson v. Schakett, 29 Gratt. 99 ; Tis- 
dale r. Risk, 7 Bush, 139. 

» McClure v. Hanis, 12 B. Mon. 261 ; Miller v. Stump, 3 Oill, 304 ; Crane r. 
Palmer, 8 Blackf. 120 ; Ellicott r. W.hli. 2 Bland, 1M2 ; Wnmer r. Van Alstyne, 
3 Paige, 513 ; Williams r. Wood, 1 Humph. 408 ; liames i-. Ony, 7 luwa, 26. 
So by statute in several States ; see post, "243. 

* Nazareth Inst. v. Lowe, 1 B. Mon. 257. 

' Van Vronker v. Eastman, 7 Met 157 ; ShaefTer «. Weed, 3 Gilm. 511 ; Pifer 
V. Ward, 8 Blackf. 252 ; McCabe v. Bellows, 7 Gray, 148. 

* Robbins v. Robbins, 8 Blackf. 174 ; Trustees r. Pratt, 10 Md. 5. 
' Ingram v. Morris, 4 Ilairingt. 111. 

* Stoughton r. Leigh, 1 Tauut. 402 ; Contes v. Cheever, 1 Cow. 460. 



218 LAW OF REAL PROPERTY. [BOOK I. 

the working of the mines and quarries in such case, if within 
the dower hinds of the widow, being a mode of enjoyment 
of the dower land itself.^ But though she may work an 
open mine, under her claim of dower, to exhaustion, she may 
not open new ones even within the land set to her as a part of 
her dower. Nor can she claim her dower in mines in other 
lands of her husband than those set off to her as her dower 
estate.^ What shall be regarded as an open mine or quarry is 
not always easy to define, though one or two decided cases 
may aid in determining it. In Coates v. Cheerer,^ a bed of 
iron ore had been opened by the husband, and after being 
wrought a while was discontinued, and partially filled up, and 
new openings had been made by the heir, and yet it was held, 
for purposes of dower, to be an open mine. In Billings v. 
Taylor,^ a quarry of slate-stone underlay about four acres. 
The mode of working it was to uncover a space of ten or 
twelve feet square, and excavate the slate to a certain depth, 
and then commence a new pit. At the time of the husband's 
death he had excavated about a quarter of an acre in this 
manner ; and the question was, whether his widow could 
claim dower out of the four acres and excavate stone from 
any part that might be set to her, and it was held that she 
might, the whole being an open quarry.* 

22. In Kentucky, shares in the capital stock of railroad 
companies, being deemed real estate, are subject to the claim 
of a widow's right of dower.^ And a similar principle applies 
as to shares in some of the inland navigation companies in 
England.^ But as a general thing, shares in corporations are 

considered mere personal chattels. 
[*167] *23. In most of the States, it is believed, a widow 

is dowable of wild lands, as is settled in many ad- 
judged cases, some of which were cited and considered when 

* Note. — The subject will be resumed when the mode of assigning dower 
is considered. 

1 Billings V. Taylor, 10 Pick. 460 ; Moore v. EoUins, 45 Me. 493, case of a 
lime quarry ; Hendrix v. McBeth, 61 Ind. 473. 

2 Park, Dow. 119. 8 Coates v. Cheever, 1 Cow. 460. 

* Billings V. Taylor, 10 Pick. 460. 

6 Price V. Price, 6 Dana, 107. " Park, Dow. 113. 



CH. VII. § 2.] DOWKR. -Jill 

trcatinir of waste. ^ But in Massaclmsrtls, .Mainr, and New 
Ilanipsliirc, it has born held that, ujtun the jiiinciple of the 
Common law as hiid down liv I>iat'ti»n, Xihtl rltiiuarr /mterit 
muUer in duti-ni siiu/ii, ///>/ ijwjj uti et frui ponni( ilr nfnis 
dotalil'HS sine raxto, diHtrnctinu; vel exHio^' a W(jman shall not 
he diiwahh' (if wihl and inicnllivalrd wixxl an<l forest lands, 
unless the same were used in conneetion with a cultivated 
farm and tenement for supplying fuel and timlter for the 
necessary piu-posi-s of the farni.^ Nor would the dearinjr 
and sul>duin<5 of such hind Ijy the husband's i^rantee during 
his life give his widow any better right to dower in the 
same.* 

24. Dower may also bo claimed out of various species of 
incorporeal hereditaments which iiclongcd to the husband as 
an inheritance, such as rights of fishing, rents, and the like.^ 
Of these last the chancellor, in Chase's Case,*' remarked, while 
speaking of the law as it is understood in Maryland, " It is 
clear that a W(nnan nniy be endowed of a rent service, rent 
charge, or rent-seek." * IJufe care should be used to discrim- 
inate between here<litaments out of which, by the manner of 
their creation and the form in which they exist, dower may 
arise, and those where it may not. Thus of a jtersonal annu- 
ity not issuing from lands, dower cannot lie claimed, 
although the * husband held it to himself and his ['108] 
heirs." And so far as these hereditaments arc aj> 

• NoTK. — Yet qtujcre as to rent service, iiuless, as in Pennsylvania, the statute 
Quia Einptorca is not a part of the law of that State. Smith, I,iiiiil. & T. l»0, 
and n. 

1 CanipW'U's Appeal, 2 Dougl. (Mich.) 141 ; Chnpnian r. Sohroedcr, 10 Oa. 
321 ; Macuulay r. Dismal Swamp, 2 Kob. (Va.) 507 ; Hickman p.In-iue, 3 Dana, 
121 ; Allon i-. McCoy, 8 Ham. 418. 

2 Braiton, 315. 

« Conner r. Shepherd, 15 Mass. 164 ; White v. Willis, 7 Pick. 143 ; Kuhn v. 
Kaler, 14 Me. 409; Stevens v. Owen, 25 Me. 94; Ford v. Erskine, 50 Me. 227; 
Johnson v. Perley, 2 N. H. 56 ; Fuller v. Watson, 7 N. H. 341, ante, •WO. See 
Mass. Pub. Stat. c. 124, § 4, in what cases she may clear lands, or cut wood ou 
land.', set to her out of her husband's estate. 

• Webb V. Townsend, 1 Pick. 21. 

» Co. Lit. 32 a ; 2 Bl. Com. 132 ; Park, Dow. 36, 112 ; Perkin.s, § 347. 

• Chase's Case, 1 Blaml, 227. 

1 Perkins, § 347 ; Co. Lit. 132 a ; Tud. Cos. 42 ; Aubin i-. Dalv, 4 B. & A. 59. 



220 LAW OF REAL PROPERTY. [BOOK I. 

pendant upon other estates, a right to be endowed of them is 
by reason of their appendancy to the estate out of which she 
has her dower.^ So far as rents are concerned, they should, 
in order to attach to them the right of dower, be granted or 
created as estates of inheritance. But of such rents a widow 
is dowable, though it is apprehended that instances of these 
are rare in this country .^ If, therefore, a man make a lease 
for years, reserving rent, and marry, and die before the expir- 
ation of the term, his wife will not be endowed of the rent, 
but she may be of the reversion, and the rent pro rata will 
belong to her as incident to the reversion.^ But if, in the case 
supposed, the husband had made a lease for his own life, .re- 
serving rent, his wife could not claim dower either in the rent 
or the land, — not in the rent, for it is determined at the death 
of the husband, and not in the land, for of that the hus- 
band, at no time during coverture, had any other estate than a 
reversion.^ 

25. If corn or other annual crop be growing upon the hus- 
band's lands at the time of his death, which shall be assigned 
to her as dower, she will be entitled to the same, instead of 
his executors.^ As a compensatory provision to the estate, the 
common law denied to her representatives the crops growing 
upon her dower land at her decease.^ But the statute of Mer- 
ton, ch. 2, interposed, and gave her the right of disposal of 
these, and they now go to personal representatives of the ten- 
ant in dower, like emblements in other cases.'' 

1 Park, Dow. 115 ; 4 Kent, Com. 40. 

2 Co. Lit. 32 a ; Id. 144 b ; 2 Cruise, Dig. 291 ; i)ost, vol. 2, p. *8. 

8 Co. Lit. 32 a ; Stoughton v. Leigh, 1 Taunt. 410 ; Chase's Case, 1 Bland, 
227 ; Weir v. Tate, 4 Ired. Eq. 264. 

* Co. Lit. 32 a ; Weir v. Tate, 4 Ired. Eq. 264. 

6 2d Inst. 81 ; Ralston v. Ralston, 3 G. Greene (Iowa), 533. 

6 Bracton, §§ 2, 96. 7 2d Inst. 81 ; Park, Dow. 355. 



CII. VII. § 3.] DOWFK. 221 

♦SECTION 111. [MCO] 

REQUISITES OF DOWEll. 

1. UcquUitcs enumeruU'd. 

2. I.rgiil iiiiiiTiaj,'t'. 

3. W'liiit iiiiirriagcs U'giil. 

4. Viilulity of iiiiiiriiigi', how ilutcniiineil. 

5. Sfisiii of husliiiiid. 

5 a. KUV'i't of convi'vuiici' hy husbaiul l)cfore marriage on dower. 

0. Stisin iiei'd not Ik- riyhtful. 

7. Miiy be di-feasiblo. 

8. Siisin sullicioiit in time. 

9. Instantaneous seisin. 

10. Dower in case of mortgages. 

11. Wlicn seisin instantaneous. 

12. Soisin must bo elfectuul. 

13. Suisin in equity. 

14. Si'isin ilffi-ati'd by husband. 

15. Kiiuitable seisin, how b)st. 

16. Eipiities of redemption. 

17. Elfeet of foreclosure. 

18. Etfeet of redeeming estates. 

19. ElFect of satisfying mortgages. 

20. Etfeet of merger on dower. 

21. When dower not niTeeted l>y discharge, &c. 

22. When recoverable in equity. 

23. Effect of diseliarge of mortgage. 

24. Wliat is evidence of .seisin. 

2'i. Tenant estoppetl to deny seisin. 

2'). Feoffee estopped to deny it in feoffor. 

27. When tenant is not estopped. 

28. Death of husband. 

1. The rcr|iiisites of dower are, marriage, seisin of the 1ms- 
baiid, and his (U.-ath ; and these will be considered in their 
order.^ * 

2. The nianiiitre must he a Icifal <.>n<', though if voidable 

• Note. — Something more tlinn the ceremony of marriage was neccssarj* to 
give the wife a right of dower, by the laws of Normandy. " fcsl au coudtcr que 
la fcm.ne gagne ami douairc" — " il /nut qu'cllc coiuhe avec son mari jniur ac- 
quirer son iliniaire ; c'ral ce qui doniu la dcrniire perfection d ce droiL" 1 Flauat, 
Coutumo de Normandie, 528. 

» 2 BL Com. 130. 



222 LAW OF REAL PROPERTY. [bOOK I, 

only, and not void, the wife will be entitled to dower if it be 
not dissolved during the life of the husband.^ 

3. Among the marriages which arc void at common law, 
are those with idiots and with persons insane at the time, es- 
pecially if they do not afterwards have lucid intervals, and 
do that which will give validity to the marriage.^ So would 
be a marriage with a second wife during the life of the first 
without a divorce first had, even though the first wife were to 
die during the lifetime of the husband, unless the cohabitation 
after her death were under such circumstances as to raise a 
legal presumption that a marriage had taken place after the 
husband was again free to contract it.^ The age at which 
parties may contract a legal marriage varies in different coun- 
tries and States, though, if contracted at an earlier age, they 
are not void, but voidable, and, unless avoided in the hus- 
band's lifetime, will lay the foundation for a claim of 

[*170] dower. At the common law * this age was fourteen 
in males, and twelve in females. Yet it is said a 
widow may have dower, if of the age of nine years at the 
death of her husband.* * 

4. As a general proposition, though limited by statute pro- 
visions in some cases, the validity of a marriage in any given 
case is to be determined by the law of the country in which it 
is solemnized. If valid there it will be valid everywhere, and 
so if void there it is everywhere void.^ One of the exceptions to 
this would be a marriage which is polygamous or incestuous.^ 

* Note. — The idea of marriage and dower at such an age would be ridic- 
ulous if it were not connected with the memory of the fact that the disposal of 
his female ward in marriage was once an important perquisite to the lord as 
guardian in chivalry, which must be eflected before she was sixteen years of 
age, or she was beyond his control. 2 Bl. Com. 131, n. 

1 Co. Lit. 33 a ; Tud. Gas. 45. 

2 2 Bl. Com. 130 ; Clancy, Rights of Worn. 297 ; Jenkins ■z?. Jenkins, 2 Dana, 
102 ; Bishop, Mar. & D. Book 3, c. 8. 

3 Higgins a;. Breen, 9 Mo. 493 ; Perkins, §§ 304, 305 ; Smart i>. Whaley, 6 Sm. 
& M. 308 ; Donnelly ^7. Donnelly, 8 B. Mon. 113. 

* Co. Lit. 33 a. 

5 Clark V. Clark, 8 Cush. 385 ; Story, Confl. of Laws, § 113 ; W. Cambridge 
V. Lexington, 1 Pick. 505 ; Putnam v. Putnam, 8 Pick. 433. 

6 Story, Confl. of Laws, § 113 ; Smith v. Smith, 5 Ohio St. 32. 



cii. VII. § Ji.] POWER. 228 

]>ut in oitlfi- to 1)0 incestuous it luv.xt Im- suoh na is so V)y the 
law of natuit', and is liy the p-ncral consent of all Christen- 
iloni (leenu'il to be incestuous.' Tlius, where an mint ami 
nephew intermarried in a country where such a marriage wart 
v<)i(lal)!e hut not void, and ri'mo\ed to another, where such a 
niairiaire is alisohittdy prohihited, it was neverth<'less held 
that the niarriaij^e was here to he rrirardt'd as a valid one.* 
Another excejition arises from the positiM- provisions t»f loeal 
law, invaUdatiuL', within that locality, marriages contracted 
clsewherr in \iolation of siit-h a law, and souirht to he enforced 
in tlu' latter State. Hut to constitute such an exception the 
parties to which it is a|»plied must he citizens of the State in 
which such law exists, and suhject to its laws at the time it is 
applied. Thus, supjiose a party who is divorced for his 
own fault is prohihitetl to marry hy the law of * the [*171] 
State where such divorce is grant<'d, a marriafje sol- 
emnized between him and another in that State would be void. 
But if he iro into another State where no such law exists, and 
marry there, the marriaire would be so far lawful in the State 
of his domicil as to lmvc his wife dowciJ' And even if a |)arty 
who has been divorced in another State for a cause which 
would not be the irround of a divorce here, the j)arties being 
citizens and <lomiciled there, comes here and marries in this 
State, it will be a valid marriaire.* But if it is exjin-ssly j»ro- 
vided, as it is in the statutes of Mas.sachusetts,'' that a mar- 
riage contracted by a party wh(» is prohil)ited from marrying 
here, and who goes into another State and there marries, with 
an intent to return here and to eva<le the law of this State, 
shall 1)0 void here, it will bo so held, although as to the State 
where it was contracted it was valid, and miirht be elsewhere.* 
Of course, in such a case, the widow of such marriage could 

* Mc<lway v. Nt-edham, 16 Ma.ss. 157; r.i-poinviKxi r. rurtis, 6 Moas. 368, 878; 
Sutton V. W.im'ii, 10 Met. 451 ; Story, Coiifl. of Uws, § 114. 

■•' .Sutton r. Wumn, 10 M.t. 4.51 ; Sti-vcnson r. Cniy, 17 B. Mon. 193. 

• rutnam r. Putnnni, 8 Tick. 433 ; Coinuionwcolth r. Hunt, 4 Cu.sh. 4'» • ^f..l• 
way r. Ni-cdham, 16 Mohs. 157. 

* Clark p. Clark. 8 Cush. 385. 

» Pub. Stat 1881, c. 145, § 10. So in D-lawarf, Ror. Stat. 1874, ]x 477. 

• Comm'ih t. Ijino, 113 Majw. 458, wlifr** it wnn In-M that the intent mast 
be aOBrmativcly shown, auil both {tartiwi citizens of tin* lattor State. 



224 LAW OF REAL PROPERTY. [bOOK I. 

not claim dower in our courts. This principle of regarding a 
marriage void in the place of the domicil of the parties, though 
entered into in another State where such marriages are valid, 
because of its being in violation of a positive law of the place 
in which they were domiciled, was considered in the Yice- 
Chancellor's Court in England, by Judge Cresswell, in the 
case of Brook v. Brook.^ By the statute 5 and 6 Wm. IV. c. 
54, it was provided that marriages which before had been held 
voidable by the ecclesiastical courts as being between persons 
within prohibited degrees of affinity, should be ipso facto void. 
In the case of Regina v. Chadwick,^ it was held that a mar- 
riage with a sister of a deceased wife, if performed in England, 
was void. In the case of Brook v. Brook, the question was 
whether the same principle should apply to a marriage sol- 
emnized by English subjects in Denmark, where no 
[*172] such restraint exists. The * judge went fully into 
former decisions, as well as the doctrine as stated in 
Story's Conflict of Laws, and lield in general terms " that 
marriages contracted by the subjects of a country in which 
they are domiciled, in another country are not held valid if by 
contracting it the laws of their own country are violated." 
Yice-Chancellor Stuart concurred in this opinion. It is con- 
ceded in the discussion of the case that the doctrine went fur- 
ther than the American law as stated by Judge Story. But 
they held that the statute declaring all such marriages abso- 
lutely null and void was binding upon British subjects every- 
where.^ There is no question, it is believed, that every nation 
may make its own laws which shall bind all within its proper 
jurisdiction, and the question how far acts done under another 
jurisdiction shall be valid within its own territory is one rather 
of comity than right, so that no general rule can be laid down 
as to marriages, which shall apply to States or nations as a 
part of the Jus gentium, and by which the validity of any mar- 
riage can be tested. In addition to what has been said above, 
it may be remarked that, so far as the ceremonial forms ad- 
opted in the solemnization of a valid marriage are required, 

1 3 Sm. & G. 481. ^ n Q. b. 205. 

3 See Comm'th v. Lane, 113 Mass. 458, 467, where this case is criticised and 
the American doctrine reasserted. 



CII. VII. § 3.] DOWKR. 22o 

it is sunific'Ut that tlirv oonfonn to tliose in use in the plaor 
where it is cck'l)iati'(h And that if the ceremonial he not Huch 
as to constitute it a leirai niarriap" where it is soh-nmi/ed, it 
woukl not I'entk'r it a valid maniai'-e even in other j)laces 
where the forms made tise of would have heen snlhcient.' 

5. The next circumstance necessary to entitle a widow to 
dower is that her hnshand slujuld have heen seined of the 
premises at some time during coverture. As a "rcneral propo- 
sition, every widow, at common law, is entitled as dower to 
one third part of all the lauds and tenements lA which her 
hushaud was seised at any time during coverture as of inheri- 
tance, to hold to herself during her natural life.^ But before 
discussing this matter more at length, it is well to 
fix what would be a sutlicient * seisin to attach the [*173] 
right of dower to premises in which the husband may 
have been interested. In the first jilace, then, it is not required, 
as in case of curtesy, at common law, that there shoidd have 
been an actual seisin or seisin in deed. It is enough tliat the 
husband had a seisin in law, with a right to an immediate 
corporal seisin. If it were not so, it might often be in tin- 
husband's power, by neglecting to take such seisin, to deprive 
his wife of her right of dower.^ In North Carolina it has been 
held that the seisin of a husband is not sufliciently complete to 
give his wife dower, unless the deed by which he holds the 
estate has been recorded.* The seisin in law above spoken of 
is such, liy the way of example, as an heir has, when an estate 
in fee has descended to him without any adverse seisin in any 
third party .^ But if before the marriage the hu.sband shall 
have lost his seisin by a stranger entering and al)ating his 
right, and he marries and dies before regaining his seisin by 
entry or otherwise, his wife cannot claim dower for want of 
seisin.*" And where a disseisor employed au agent to in-ocure 

* Scrimshire v. Seiiinshire, 2 Hagg. Cuusist. 395 ; Lacon r. Higgins, 3 Stark. 
178 ; 2 Cnibb, Real Prop. 128. 

« 2 Bl. Com. 129. 

* Atwood r. Atwood, 22 Tick. 283 ; Mann ». Edson, 39 Me. 25 ; Co. Lit. 31 a ; 
Tud. Cns. 45 ; 2 Bl. Com. 131 ; Bnsli v. Busli, 5 Houst. 245. 

* Thnimis V. Thoma.s, 10 Ii-ed. 123. 

» 2 Cmbb. Real rr.>i.. 123; Co. Lit. 31 a ; Duuham r. Osborne, 1 Paige, 634. 
" 4 Dune, Al-r. CG'.« ; Pi rkius 6 3'-7 
VOL. I. — 15 



226 LA-^V OF REAL PROPERTY. [bOOK I. 

a deed of release from the disseisee, and the agent, instead of 
taking it to the disseisor, took it to himself, it was held that it 
did not give him as grantee such seisin as would entitle his 
wife to dower, since one who is disseised could not convey a 
seisin to a stranger.^ The same rule as above stated as to an 
abator applies in the case of disseisin, and the wife of a dis- 
seisee who was disseised before marriage cannot claim dower, 
although he still retains a right of entry, if he does not exer- 
cise this right and regain his seisin during coverture.^ But in 
the case above supposed of the abatement of the heir, if he 
had married in the lifetime of the ancestor from whom the fee 
descended, the seisin in law which in such case the husband 

as heir had by the descent would enure to the wife's 
[*174] benefit * in the way of dower, though an abator 

should enter and prevent her husband from acquiring 
actual seisin during their coverture.^ If, therefore, at com- 
mon law, the husband had not, during coverture, anything 
more than a mere right of entry or of action to obtain seisin, 
it would not be sufficient to entitle his widow to dower.* As 
an illustration of this proposition, where one made a feoffment 
upon condition and then married, and during coverture the 
condition was broken, but the husband neglected to enter and 
revest the seisin in himself before he died, his wife was held not 
to be entitled to dower, though the heir entered and regained 
the seisin for himself.^ Nor does it make any difference in 
the effect of a want of seisin that the husband parted with it 
before his marriage, with a view to defraud his creditors, or 
that the deed was not recorded.^ The seisin of which men- 
tion thus far has been chiefly made should be understood as a 
legal seisin or its equivalent. We shall speak hereafter of 
dower in equitable estates where under the Englisli Dower Act, 

1 Small V. Proctor, 15 Mass. 495. 

2 Thompson v. Thompson, 1 Jones (N. C), 431. 

8 2 Crabb, Real Prop. 1 29, &c. ; 1 Brooke, Abr. Dower, 262. 

* Tud. Cas. 45. 

^ Thompson v. Thompson, 1 Jones (N. C), 430. 

Whithed v. Mallory, 4 Cush. 138 ; Blood v. Blood, 23 Pick. 80 ; Richardson 
V. Skolfield, 45 Maine, 386. And in Baker v. Chase, 6 Hill, 482, a conveyance 
immediately before mamage, without consideration and with the intent to deprive 
the wife of dower, was held a bar. 



cii. VII. 5; o.] nowFR. '2-21 

as Will as by the laws of many f>f (ln' States, of course a seisin 
in etjuity will he siinifient* 

5 <i. A conveyance hy a linshaiHl imiiiriliatt'Iy i»efore niar- 
riaj^e, if (lcsii^ne<l to bar his wife of dower, and this is not 
kn<)wn to her, has been held, in e<|uity, to he fraudulent and 
not to l»ar her, if the person to whom the conveyance is made 
was cojjnizant of the fact. And this seems clearly settled by 
an almost unbroken current of authority. Thus in .^waino r. 
rerine,- a dee«l to a daiitrhter, without consideration, jj'iven 
for that |mr|)ose, was held not to bar the wife of the jz^rantor 
(»f her dower in the premises. In IJaker v. Chase,'' where such 
a conveyance! to a son by a former wife, as an advancement, 
was held to be a bar in law, \\\u)\i the technical rule that tlie 
husltand was never seised diii-inir coverture, the C(jurt say: 
" What a court of equity mi<j:ht say al)out such a fraud us 
that, 1 will not say." But later cases in the same State have 
repeatedly relieved against such a conveyanc«\^ A case is 
put by Mr. Crui.se, of a man conveying land to a trustee for 
himself in order to defeat the right of dower in a wife whom 
he was about to marry, and it was h(dd ta be fraudulent and 
void.'' In Tennessee, a voluntary conveyance, without consid- 
eration, with an intent to l)ar dower, if known to the grantee, 
would be fraudulent and void as to the wife," and a like doc- 
trine is held in Michigan, California, Vermont, Iowa, Missouri, 
Mississip|»i, and New Jersey." 

6. It is not, however, necessary that the seisin of the hu.s- 

» rost, p. 'l?!). And see 2 Crnbb, Real Prop. 130, 1C2 ; ami antr, p. •165. 
" Swaine v. Perinc, 5 John. Ch. 489 ; and see Petty v. Petty, 4 B. Mon. 215. 
« Baker v. Chnse, 6 Hill, 482. 

* Youngs V. Carter, 10 Hun, 194 ; s. r. 50 How. 410 ; Pomeroy r. Pomcroy, 54 
How. 228. 

» 1 Cruise, Dig. 411. See 4 Cruise, Dig. 416. 

• Brewor v. Conncll, 11 Humph. 500 ; Ix)ndon r. London, 1 Humph. 1 ; Row. 
Land V. Kowlaiiil, 2 .Sneed, 543. • 

^ Cran.v>n r. Crnn.son, 4 Mich. 230 ; Brown r. Bronson, 35 Mi^h. 415 ; Rowe 
r. Bradley, 12 Cal. 226 ; .lenny r. Jenny. 24 Vt. 324 ; Buzi.k r. Buziok, 44 Iowa, 
•J59 ; Crccolius v. Hor>t, 4 Mo. Ap|>. Ca. 419 ; Jig^its v. Ji.iigits, 40 Mis*. 718: 
Smith V. Smith, 2 Halst. Ch. 515. This subject is fully considered in e«juity, and 
.1 ronveyancc made hy huslmnd or wife on the eve of marriage, unknown to the 
nther, if made without valuable consideration, held void as to the oth-T party, by 
Bates, Ch., in Chandler r. HoUingsworth, 3 DcL Ch. 99 ; poat, vol. 2, p. •597. 



228 LAW OF REAL PROPERTY. [BOOK I. 

band should be a rightful or an indefeasible one. Thus the 
widow of a disseisor or an abator and the like, may 

[*175] hold dower against * all persons except the person who 
has the rightful seisin, and who has regained it by 

entry or suit.^ 

7. So though her husband's estate was a defeasible one, pro- 
vided it is one of inheritance, the wife may claim and retain 
her dower until the estate is determined or defeated. Thus 
she may have dower out of lands held as a base, or qualified 
fee, or a fee upon condition, so long as the seisin of such an 
estate is undisturbed.^ And it may be regarded as a general 
proposition, that where dower attaches to an estate it is always 
subject to the same equities that existed against the husband's 
title at the time of its attaching. So that if the legal estate 
be in the husband, and an equitable estate be outstanding in 
favor of another at the time of the marriage, no right of dower 
can be set up against such equitable titlc.^ And on this 
ground the widow of a trustee is not dowable, and the widow 
of a mortgagor may lose her right of dower by a foreclosure 
of the mortgage. The nature and rights of dower in estates 
held as determinable fees or subject to executory limitations, 
as it respects seisin, will be considered hereafter, when the 
subject of what will defeat a wife's right of dower comes to 
be spoken of. 

8. No particular length of time, however, during which the 
husband should retain seisin, is required by law, no matter how 
brief it is, if it be for the husband's own use and benefit, nor 
whether the seisin be one in law or in deed.^ And this point 
is illustrated by the old case of the execution of father and 
son from the same cart. There the wife of the son was held 
dowable of what had been the father's estate, by reason of the 
son having been observed to struggle longer than the father, 
whereby there was space of time long enough for the estate to 

1 Park, Dow. 37 ; 4 Dane, Abr. 668. 

2 1 Jarman, Wills, 792 ; Co. Lit. 241, n. 4 ; 1 Cruise, Dig. 162 ; 4 Dane, Abr. 
668 ; Park, Dow. 50 ; Jackson v. Kip, 3 Halst. 241. 

* Firestone v. Firestone, 2 Ohio St. 415. 

4 2 Kent, Com. 39 ; McClure v. Harris, 12 B. Mon. 261 ; McCauley v. Grimes, 
2 Gill & J. 318 ; Stanwood v. Dunning, 14 Me. 290 ; Gage v. Ward, 25 Me. 101 ; 
Douglass i». Dickson, 11 Rich. (S. C.) 417. 



(11. VII. § :i.] DOWER. 2-2t» 

(hsceiul from the fiitlici* to lln' son, and tlir wik-'.s ritrlit "i 
dower to attach.' 

*!>. Hut if tlio seisin of the Inisl.and he merely in- ["ITO] 
stantaiicons, intended as a means of aceomplisliinir 
some uheiior jiin-poso in regard to the estate, the hushand 
hein.LS iis it wei-e, a conduit through whieh tlio CHtato jnisHes 
witliout an intent to eh)the him with a Itenelieial interest, it 
would not jjivo his wife any rij;ht of dower.'- And it nuitters 
not whether the transaction consists of one conveyance or 
of several, or whether they arc executed hetween two parties 
only or morc.^ In respect, therefore, to an instantaneous 
seisin, whether it shall he sullieient to confer the ri'_dit of 
dower depends ujion the character rather than the duiation 
of the seisin."* Thus in the case of McCauley v. (Jrimes, just 
cited, the ohject of the conveya