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^T— 3 r
'«-■
f..-. THB
American Decisions
OASIS OF GXHBKAL VALUB AUD ADTHOSITT
The Comtm of thb Several Staxb
ROM 1HB BABHWrr BBini OV THB SCAB UfOm lO
Bt a. 0. FBBBMAN,
Yoim LXXXYIII.
BANOBOFT-WHITNBT COMPAHT,
1887.
^P'7e8
JUL 29 1942
aooordiag to Aol of CongreH ia the ymr 1887*
Bv BAHGROR-WHrrNBY OOMPAHTp
OOm oltlM UbnviAB ol OoMiwiL al
-» k
• ••
• • •
• V •• •
AMERICAN DECISIONS-
VOL. LXXXVIII.
The cases re-reported in this voltune will be found
originally reported in the foUowing State Reports :
M1NNE8OTA Reports. Vols. 10, 11. 1865.
M188OUBI Reports Vols. 35-37. 1865.
New Hampshire Reports. . . . VoL 46. 1866, 1866.
C. E. Green's N. Jersey Bq. Reps. Vol. 2. 1865.
New York Reports Vols. 31-84 1865.
Ohio State Reports Vol. 16. 1865.
Oregon Reports Vol. 2. 1864.
Pennsylvania State Reports. . Vols. 4ft-61. 1864, 1865.
Coij>wELL's Tennessee Reports. . VoL 2. . 1865.
Vermont Reports Vols. 37, 88. 1865.
West Virginia Reports. * • . VoL 1. 1865.
Wisconsin Reports. Vols. 19, 2QL 1865.
AukBAMA Reports. Vols. 89, 4a 1866.
rsAs Rxpobts. VoL 24. 1866
f
BOHEDTJLE
or
BKPQBSS IBOM WHIDH OASBB HAVB BBEH SEUBOnED
FOB THB
AMEBICAN DECISIONS
in ptrtnfhMM, and tt« nombflr of tbm Ameftoui Dadiloiw in
whkh tlMf «• i^wporttd Is In luaTyftmd lettar.
(l]fiiiac)M; (18tow.)18; (2 8t0w.) 19, M; (3 Stew.) M^ 81;
(1 8l0w.ftP.) 81; (1,2, S Stow, ft P.) 88; (4, 68tow. ftP.) 84; (6 Stew.
ft P., tad 1 Pttter) 86; (1, 2 Pwter) 89; A4P^«tar)88; (i, fi, 6 Porter)
80; (Qb 7 Porter) 81; A 9 Poriw) 88; (1)84^86; AS) 86; (3»4)87;
(4,6)89; (6^7)41; (7,8)48; (iMO) 44; (11, 12) 46; (IS, 14, 16) 48;
(16, 16) 60; (17, 18) 68; (18; 19) 64; (20; 21) 66; (22, 28) 68; (24, 25)
60; (26,27)68; (28,29)66; (29, SO; 81) 68; (81, SS; 88) 90; (88, 84, 35)
98; (86^ 86, 87) 96; (87, 88) 99; (88) 81, 88; (89) 84 69; (89, 40) 6a
ftBKA]raA»-(l, 2) 68; (2)86; (3)86; (4)89,86; (6)89,41; (6)48; (7,8)
44, 46; (8, 9) 49; (0, 10) 60; (IC^ 11) 68; (11, 12) 64; (1* 18) 66; (13,
14) 68; (14, 16) 60; (16^ 16) 68; (17, 18) 66; (18; 19) 68; (19) 90; (20) 98;
(21, 22) 96; (22, 28) 99; (24) 81, 89, 8a
OALOORinA^l) 68, 64; (2) 66; (8) 68; (4) 60; (6) 68; (6) 66; (7, 8) 66;
(9; 10; 11) 90; (12; 18, 14) 98; (14, 16^ 16; 17) 96; (17, 18; 19) 99; (19,
20; 21) 81; (21)88; (22; 28) 88; (24^ 26, 26; 27) 86; (27, 26; 29) 89.
CoHnonon^-iKirby, end 1, 2 Root) 1; (1, 2 Day) 8; (8 Day) 8; (4 Day) 4
(6 Day) 6; (1)6, 9; (2)9; (8)8; (4)10; (6)18; (6)16; (7)18; (8)80;
(9) 81; (10) 88b 86; 89; (11) 89, 89; (12) 80, 81; (18) 88; (18, 14) 86
(14)86; (16)88^89; (16)41; (17, 18) 44; (18)46; (19)48; (19, 20) 60
(20)68; (21)64; (21,22)66; (22)68; (28)60; (28,24)68; (26)66
(24, 26) 68; (27) 91; (28)98; (29)96; (29, SO) 99; (81) 81, 88; (82) 86
(88; 88) 89.
DiLAWAma-ll Herr.) 88; 88^ 86, 89; (2 Hen.) 89, 80; 81, 88; (4 Harr.)
48, 44; (6 Hur.) 48; 60; (1 Hooet) 68, 68; 91; (2 Hooet, 2 Del
Ol) 98; (2 Hooet) 61; (2 Hooet) 8a
VLOBmAr-(l) 44^ 46; (2) 46; 60; (8)68; (4)64^66; (6)68; (6)68, 66;
(7) 68; (8) 91, 98; (9) 96, 99; (10) 8L
9
10 Schedule.
Oboboia-HI T. U. p. Charlton) 4; (1) 44; (2, 3) 46; (4, 5) 48; (6, 7) 50;
(8, 9) 68; (9, 10) 64; (II, 12) 66; (12, 13, 14) 68; (16, 16) 60; (17, 18, 19)
63; (19, 20) 66; (21, 22, 23) 68; (24» 25, 26) 71; (27, 28) 78; (29) 74;
(29, 30, 31) 76; (31, 32) 79; (33) 81, 83.
iLLXNOis-^Breeee) 8; (1 Scam.) 86, 86, 87, 88, 89, 30, 38, 33; (2 Scam.>
23, 36; (3 Scam.) 36; (3, 4 Scam.) 38; (4 Scam.) 39; (1 Gilm.) 41;
(2Gilm.)43; (3 Gilm.) 44; (4 GUm.) 46; (5 GUm.) 48, 60; (11)60;
(11, 12) 68; (12, 13) 64; (13, 14) 66; (14, 15) 68; (15) 60; (16) 61; (16,
17) 63; (17, 18) 66; (18, 19) 68; (19, 20, 21) 71; (21, 22, 23) 74; (23,
24, 25) 76; (25, 26, 27) 79; (27, 28, 29, 80) 81; (30, 31, 32, 33) 83; (33,
34, 35, 36) 86; (36, 37, 38) 87.
Iin>XANA~(lBIackf.)18;(2Blackl)18^80, 81; (3Blackf.)86,86; (4BIackf.>
88, 89, 30, 38; (5 Blackf.) 38, 33, 36, 36; (6 Blackf.) 36, 38, 89;
(7 Blackf.) 39, 41, 43; (8 Blackf.) 44, 46; (1) 48, 60; (2) 68; (2, 3>
64; (3) 66; (4) 68; (5, 6) 61; (6, 7) 63; (7, 8) 66; (9, 10) 68; (10, 11)
71; (12, 13) 74; (14, 15) 77; (16, 17) 79; (18, 19) 81; (2(1, 21) 83; {22,
23) 86; (24, 25) 87.
IoWA--(Morri8) 39, 41, 43; (1 G. Greene) 46, 48, 60; (2 G. Greene) 68
(3 G. Greene) 64, 66; (4 G. Greene) 61; (1, 2) 63; (2) 66; (3, 4) 66
(4, 5) 68; (6, 7) 71; (7, 8, 9, 10) 74; (10, 11) 77; (11, 12) 79; (18, 14) 81
(14, 15) 83; (16, 17, 18) 86; (18, 19) 87.
Kakbas— (1) 81; (1, 2) 83; (2) 86; (3) 87.
KsNTUOKT— (1 Sneed) 8; (Hardin) 3; (1 Bibb) 4; (2 Bibb) 4, 6; (3 Bibb) 6;
(4Bibb)7; (1 A. K. Marsh.) 10; (2 A. K. Manh., and litt. SeL 0Ba.)18;
(3 A. E. Marsh., and 1, 2 Litt) 13; (3, 4 latt) 14; (1, 2 Mon., and 5
latt) 16; (3, 4 Mon.) 16; (5, 6 Mon.) 17; (7 Mon.) 18; (I, 2, 3 J. J.
Marsh.) 19; (3, 4, 5 J. J. Marsl. ) 80; (5, 6 J. J. Marsh.) 88; (7 J. J.
Marsh.) 88, 83; (1 Dana) 86; (2 Dana) 86; (3 Dana, 88; (4 Daiia)'89;
(5 Dana) 30; (6, 7 Dana) 38; (8, 9 Dana) 33; (9 Dana, and 1 B. Mon.)
36; (1, 2 B. Mon.) 36; (2, 3 B. Mon.) 38; (3, 4 K Mon.) 39; (4, 5 B.
Mon.) 41; (5, 6 B. Mon.) 43; (6 K Mon.) 44; (7 B. Mon.) 46; (7, 8 B.
Mon.) 46; (8, 9 B. Mon.) 48; (9, 10 B. Mon.) 60; (10, 11 B. Mon.) 68
(12 B. Mon.) 64; (13 B. Mon.) 66; (14 B. Mon.) 68; (14, 15 K Mon.) 61
(15, 16 B. Mon.) 63; (17 B. Mon.) 66; (18 B. Mon.) 68; (1 Mete.) 71
(2 Mete) 74; (3 Meta) 77, 79; (4 Mete.) 81, 83; (1 DuvaU) 86; (3
DuvaU) 87.
LouisiANA~-(l> 2, 3 Mart) 6; (3, 4 Mart) 6; (5, 6, 7 Mart.) 18; (S, 9, 10, 11,
12 Mart) 13; (1, 2 Mart., N. S.) 14; (3 Mart, N. S.) 16; (4, 5 Mart,
N. S.) 16; (6 Mart, N. S.) 17; (7 Mart, N. S.) 18; (8 Mart,, N. S.) 19,
80; (1, 2) 80; (2, 3) 88; (3, 4) 83; (5, 6) 86; (6, 7) 86; (8) 88; (9. 10)
89; (11) 30; (12) 38; (13, 14) 33; (15, 16) 36; (17, 18, 19) 36; (1 Rob.)
36; (1, 2, 3 Bob.) 38; (4, 5, 6 Bob.) 39;' (6, 7, 8, 9 Bob.) 41; (10, 11,
12 Bob.) 43; (1 Ann.) 46; (2 Ann.) 46; (3 Ann.) 48; (4 Ann.) 60;
(5 Ann.) 08; (6 Ann.) 64; (7 Ann.) 66; (8 Ann.) 68; (9 Ann.) 61; (10
Ann.) 63; (11 Ann.) 66; (12 Ann.) 68; (13 Ann.) 71; (14 Ann.) 74; (15
Ann.) 77; (16 Ann.) 79; (17 Ann.) 87.
Maine— (] GreenL) 10; (2 GreenL) U; (3 GreenL) 14; (4 Greenl.) 16;
(5 GreenL) 17; (6 Gieenl.) 19; (6, 7 GreenL) 80; (7, 8 GreenL) 88; (8, 9
GreenL) 88; (10 Me.) 86; (11)86,86; (12)88; (13)89; (14)30,31;
(15) 38; (15, 16) 33; (17) 36; (18, 19) 36; (20) 37; (21, 22) 38; (22, 23)
SOHSDULE. 11
89; (S3, M) 41; (85) 48; (20) 46; (28» 27) 46; (28,29)48; (20, »>, 31)
60; (31, 32)68; (92, 33)64; (34, 86)66; (36, 3^ 37)68; (37)60; (38)
61; (39, 40) 68; (41, 42) 66; (43, 44) 60; (46, 46) 71; (46, 47) 74; (48,
48) 77; (60) 70; (61) 81; (62) 88; (63) 87.
lfASTLA2n>— (1, 2,3, 4H.ftM.)l; (lH.ftJ.)8; (2H.ftJ.)8; (3ILftJ.)
6,6; (4 H. ft J.) 7; (6H.ftJ.)0; (6 H. ft J.) 14; (7 H. ft J.) 16; (IBL
Oi.)17, 18; (lH.ftG.)18; (1,2 001 ft J.) 10; (2 BL Ch., and 2, 3 O.
ftJ.)80; (3 BL Gh., and 3 G. ft J.) 88; (4, 6G.ft J.) 88; (6,6aftJ.)
86; (6,70. ftJ.)86; (7G. ftJ.)88; (8G. ftJ.)80; (9G. ftJ.)81;
(10 G. ft J.) 88; (11 G. ft J.) 88, 86, 87; (12 G. ft J.) 88; (1 Gill) 80;
(2GiU)41; (3GiU)48; (4 001)46; (6, 6G01)46; (6, 7 GOl) 48; (8 GOl)
60; (9 am) 68; (1) 64; (2, 3) 66; (4, 6) 60; (6, 6, 7) 61; (8) 68; (9) 66;
(10, 11) 60; (12, 13) 71; (14, 16) 74; (16, 17) 77; (17, 18) 70; (18, 19) 81;
(90, 21) 88; (22) 86; (23, 24) 87.
MinAGHUBKiTS— (Qiunoy) 1; (1) 8; (2, 8, 4)8; (6, 6) 4; (7, 8) 6; (9, 10, 11) 6;
(12, 13, 14) 7; (16, 16) 8; (17) 0; (1 Pick.) U; (2 Pick.) 18; (3 Pick.) 16;
(4, 5 Pick.) 16; (6 Pick.) 17; (7, 8, 9 Pick.) 10; (9, 10 Pick.) 80; (11, 12
Pick.) 88; (12, 13 Pick.) 84; (13, 14, 16 Pick.) 86; (16, 16 Pick.) 86;
(16, 17 Pick.) 88; (18 Pick.) 80; (19 Pick.) 81; (20 Pick.) 88; (22Pick.)
88; (23 Pick.) 84; (24 Pick., and 1, 2 Met) 86; (2, 3 Met.) 87; (3, 4, 6
Met) 88; (6, 6, 7 Met) 80; (7, 8 Met.) 41; (9, 10 Met) 48; (11, 12 Met)
46; (12, 13 Met.) 46; (1, 2 Ooah.) 48; (3, 4 Cosh.) 60; (6 Ooah.) 61;
(6, 6 Coflh.) 68; (6 Ciuh.) 68; (7, 8 Ooah.) 64; (9 Ooah.) 66, 67; (10
Ooah.) 67; (11, 12 Ooah.) 60; (1, 2 Gray) 61; (SGny) 68; (4 Gray) 64;
(6, 6, 7 Gray) 66; (8, 9, 10 Gray) 60; (10, 11, 12 Gkray) 71; (12, 13, U
Gray) 74; (14, 16, 16) 77; (1, 2 AUen) 70; (3 AUen) 80; (3, 4, 6 AUen) 81;
(6, 7 AUen) 88; (8, 9 Allen) 86; (10, 11 Allen) 87.
MnEDOAH-Kl l>oiig) 40, 41; (2 Doag.) 48, 46, 47; (1) 48, 61, 68; (2) 66,
W; (2, 3) 60; (3) 61, 64; (4) 66, 60; (6) 71; (6, 6) 78; (6, 7) 74; (8,
9) 77; (9) 80; (9, 10) 81; (10, 11)88; (11, 12) 88; (12) 86; (13) 87.
Mnnn80TA-<l) 66, 61, 66, 60; (2) 78; (3) 74; (4, 6) 77; (6, 6) 80; (7, 8)
88; (8) 88; (9) 86; (10, 11) 88.
MnnnFrMWalker) 18; (1 How.) 86, 88, 80, 81; (2 How.) 88; (3, 4 How.)
84; (4, 6 How.) 86; (6 How.) 87; (6 How.) 88; (7 How., and 1 Smedea
ftM.)40; (2, 3 Smedea ft M.) 41; (4, 6 Smedea ft M.) 48; (5, 6, 7 Smedea
ft M.) 46; (8, 9 Smedea ft M.) 47; (9, 10 Smedea ft M.) 48; (11 Smedea
ft M.) 40; (12, 13 Smedea ft M.) 61; (13, 14 Smedea ft M.) 68; (23) 66,
67; (24, 26) 67; (26, 26) 60; (27, 28) 61; (28, 29, 30) 64; (31, 32) 66;
(38, 34) 60; (36, 36) 78; (36) 74; (37, 38) 76.; (38, 39) 77; (39) 8a
PSF-(1) 18, 14; (2) 88; (3) 88, 88, 86, 86; (4) 88, 80, 81; (6) 81,
\; (6) 84, 86; (7) 87, 88; (8)40, 41; (9) 48; (9, 10) 46; (10, 11) 47;
(kl, 12)40; (12) 61; (13) 68; (14, 16) 66; (16, 16, 17)67; (17, 18, 19) 60;
(10, 20) 61; (20, 21, 22) 64; (22, 23, 24) 66; (24, 26, 26) 60; (26, 27) 78;
(28) 76; (29, 30, 31) 77; (31) 80; (32, 33) 88; (33, 34) 84; (34, 36) 86;
(36, 36, 37) 8a
Hsw Hampshibx-.(1) 8; (2) 0; (3) 14; (4) 17; (6) 80, 88; (6) 88, 86, 86;
0) 86, 88; (8) 88, 80, 81; (9) 81, 88; (10) 84; (II) 86; (12) 87; (13)
88; (13, 14) 40; (16, 16) 41; (16, 17) 48; (18) 46, 47; (19) 40; (19, 20)
61: (21,22)68; (22,23,24)66; (24,26,26)67; (26,27,28)60; (28.
29) 61; (30, 31, 32) 64; (33. 34) 66; (34, 36) 60; (36, 37) 78; (37, 38, 39) 75;
(4t^ 41, 42) 77; (42, 43) 80; (43, 44) 88; (44, 46) 84; (45) 86; (46) 8a
12 SOHKDULB.
Haw JanT-(Cbze) 1; (1 Fm.) 8; (2 Fte.) 4; (1 SoatfL) 7; 9 Sooth.) 8,
(IHalBt)lO; (2HalKt)U; (8Hiait)14; (4Halst)17; (6HalKt)18;
(6 Halst) 10, M; (1 Sftz., 7 Halst) 81; (1 Chr., 1 Sue, 7 Halst) tt;
(1 Sue, 1 Or.) 88; (1, 2€hr.) 86; (2 Chr.) 87; (3€hr.) 88^ 89; (2€hr. Gb.)
89; (1 Hut., 3Qr.GlL) 81; (1 Hur., IQr. GIl)88; (2 Hut., 1 Or. Oh.)
84; (1 Or. GL, 2, 3 Hur.) 86; (3 Hur.) 87; (3 Chr. Ch., 1 SpcoMr, 3,
4 Hur.) 88; (1 Spenoer, 3Qr. Gh.) 40; (3Qr. Gh.) 41; (1 Spenoer, 30r.
Gh., 1 Halst Gh.)48; (1 Spenoer, 1 Habt GIl)46; (1 Zah., 2 Heist Gh.)
47; (2 Zab., 3 Helet Gh.) 61; (2,3Zeh.)68; (3 Zah., 4 Helet Gh.) 66;
(3Zab., 1 Stook. Gh.) 67; (4 Zab., 1 Stook. Gh.) 69; (4Zeh.) 61; (4Zeb.,
I Dutch., 1, 2, 3 Stock. Gh.) 64; (% 3 Stock. Gh.) 66; (1 Dateh.) 67;
(2 Datch., 3 Stock. Gh.) 69; (3 Dutch., 1 Besd^e Bq.) 78; (4 Datoh.)
76; (4 Datch., 2 Beesley's Bq.) 78; (6 Dutoh., 1 MoOwter) 80; (1 Vzoom,
1, 2 McCerter's Bq.) 88; (1 G. B. Oieea'e Bq.) 84; (1, 2 Vioon, 2 a B.
Green's Bq.) 86; (2 G. B. Green's Bq.) 8a
Haw ToBX-Hlf 2 Johns. Gas.) 1; (3 Johns. Gm., 1, 2 Gu. Gm., 1, S; 3 OU.)
8; (1, 2, 3 Johns.) 8; (4, 5 Johns.) 4; (e, 7, 8 Johns.) 6; (9, 10^ 11 Johi&)
6; (12, 13, 14 Johns., 1, 2 Johns. Gh.) 7; (Ifi, 10, 17 Johns., S, 4 Johi&
Gh.) 8; (18 Johns., 6 Johns. Gh.) 9; (19 Johns., 6 Johns. Gh.) 10; (20
Johns., 7 Johns. Gh.) 11; (1 Gow.) 18; (Hop. Gh., end 2 Gofir.) 14; (3, 4,
6 Gow.) 16; (6 Gow.) 16; (7 Gow.) 17; (8^ 9 Gofw.) 18; (1 Pkjge^ 1, 2
Wend.)19; (2, 3 Wend.) 80; (2 F^ 4, 6, 6 Wend.) 81; (S;3Pk«g^
6^ 7, 8 Wend.) 88; (3 Pkige) 88^ 84; (8^ 9, 10 Wend.) 84; (4 Pkjge^ 10^
II Wend.) 86; (4 Pivge^ 11, 1% 13 Wend.) 87; (6 F^ 13, 14 Wend.)
88; (6 Paige) 89; (Ifi, 16 Wend.) 80; (6, 7 Pkdge^ 17, 18 Wend.) 81;
(7 Paige, 19, 20 Wend.) 88; (7, 8 Paige, 21, 22 Wend.) 84; (23, 24, 26
Wend., 8 Fkige) 86; (26, 26 Wend., 1, 2 Hill, 9 Fkige) 87; (9Pkig^2,3
Hill)88; (10 Paige, 4, 6, 6 Hill) 40; (6Hill)41; (7 Hill, IQ, 11 Pkige)
48; (1, 2 Denio^ 11 F^ge, 1 Burb. Gh.)48; (1, 2 Burh. Gh., 3 Denio) 46;
(4, 6 Deoio^ 2 Burh. Gh.) 47; (3Burb. Gh., 6Denio)49; (1,2)49; (S;3)
61; (3,4)68; (4,6^6)66; (6^7)67; (7,8,9)69; (9, 10) 61; (11, 12)
68; (12, 13) 64; (18, 14) 67; (16, 16) 69; (17, 18) 78: (18, 19, 20) 76;
(21,22)78; (23,24)80; (24,26,26)88; (26,27,28)64; (28,29,30)86;
(31, 32, 33, 34) 8a
HoBXH Gabolina— (1 Mart., 1 Hayw., 1 TmyL) 1; (2 Hsjw., 1 Gbiii) 8;
(1 Mnrph.) 8, 4; (2 Mnxph.) 6; (1, 2 Law Rep.) 6; (1 T. R.) 7; (3 Mu^,
1 Hawks) 9; (2 Hawks) U; (3 Hawks) 14; (4 Hawks) 16; (1 Der.) 17;
(2 Dot.) 18, 81; (1 Dev. Bq.) 18; (3 Dev., 2 Dev. Bq.) 88, 84; (4 Der.,
2 Dev. Bq.) 86; (4 Dev., 2 Dev. Bq., 1 Dev. Ai B., 1 Dev. ft & Bq.) 87;
(1, 2 Dev. k B., 1 Dev. ft B. Bq.) 88, 80; (1 Dev. ft B. Bq., 2 Dev. ftR)
81; (3, 4 Dev. ft B., 2 Dev. ft B. Bq.) 88; (4 Dev. ft B., 2 Dev. ft B. Bq.)
84; (1 Ired.) 86; (1 lied. Bq.) 86; (2 lied.) 87; (2, 3 lied., 2Ired. Bq.)
88; (3, 4 lied., 2, 3 lied. Bq.) 40; (4, 6 lied., 3 Ired. Bq.) 48; (6, 6 lied.
3, 4 lied. Bq.) 44; (6, 7 Ired., 4 Ired. Bq.) 46; (7, 8 Ired., 4, 6 Ired. Bq.)
47; (8, 9 Ired., 6 Ired. Eq.) 49; (9, 10, 11 Ired., 6 Ired. Eq.) 61; (11
Ired., 7 Ired. JSq,) 68; (12, 13 Ired., 8 Ired. Eq.) 66; (13 lied.. Sired.
Bq., Bnshee L., Bosbee Bq.) 67; (Bosbee L., 1 Jones L., Bosbee Bq., 1
Jones Bq.) 69; (1, 2 Jones L., 1, 2 Jones Bq.) 68; (2 Jones Bq., 2; 3
Jones L.) 64; (3, 4 Jones L., 2, 3 Jones Bq.) 67; (3 Jones Bq., 4, 6 Jones
L.)69; (6, 6 Jones L.. 4 Jones Bq.) 78; (4, 6 Jones Bq., 7 Jones L.) 76;
SCHSDULB. 18
{Bw#J€OMBq.,7,8JciiML.)78; (8 Jcbm L.) 8<h (• Joom Sq.. 8 1
1^)BB; (1 Wbist. L.) 84; (I, 2 Wintt L., Winit Bq.) 86.
Omo^l)18; (2)15; (3)17; (4)19.E0; (5)88,84; (6)88,87; (7)88,80;
C8) 81, 88; (9) 84; (10) 86; (U) 87, 88; (12) 40; (18) 48; (14, 16) 46;
C18) 47; (17) 48; (18) 61; (19) 68; (20) 66; (1, 2 Ohio St) 60; (3, 4
0h]o8t)0; (4, 6 Oliio St) 64; (6, 6 Ohio St) 67; (7, 8 Ohio St) 70;
A 8) 78; (10, 11) 78; (12) 80; (18, 14) 88; (14) 84; (16) 86; (18) 8a
Obsoov— <1) 88, 76; (1, 2) 80; (2) 88, 84, 8a
PKSjnnTAnA— (1 Add., 1, S; 8DdL,l, 2Y«itn)l; (1 Bin., 8^ 4 Tcftte) 8;
(SBm.)4; (3,4Bi]i.)6; (6,8BiiL)6; (1, 2 Scig. ft B.) 7; (8^ 4 Scig. ft
B.)8; (6, 8 Sorg. ft B.) 0; (7 Scig. ft B.) 10; (8^ 9 Scig. ft B.) U; (10
Setg. ft R.) 18; (11, 12 Setg. ft B.) 14; (18 Seig. ft B.) 16; (14, 16, 18
8«g. ft B.) 16; (17 Seig. ft B.) 17; (1 Bawle) 18; (2 Bawle) 10; (2
Bmrk, 1, 2 Pair, ft W.) 81; (3 Bawle^ 2, 8 Ptar. ft W.) 88^ 84; (4
BmHo, l,2WMi)86; (4 Bawle, S; 8 Watte) 87; (6 Banrla^ 4 Watte)
88; (1 Whart) 89; (1, 2 Whart, 6 Watte) 80; (6 Watte, 8 Whart) 81;
(7Watte)88; (4Whart)88; (8,9Watt^4, 6Whart)84; (9, lOWatt^
8Whart)86; (6 Whart, 1,2, 3 Watte ft &)87; (3 Watte ft &)88;
(3^ 4^ 6 Watte ft S.) 89; (6, 8 Watte ft &) 40; (7, 8, 9 Watte ft &) 48;
(1. 2 Pk St) 44; (2,8,4,6)46; (5,6^7)47; (7,8,9,10)49; (1(M1, 12)
61; (IS, 14, 16) 68; (18, 17, 18) 66; (18, 19, 20) 67; (20^ 21) 69; (22) 60;
(22; 23^ 24) 68; (24,26)64; (26,27)67; (28,29)70; (211,30,81,82)78;
(3% 33, 34) 76; (36, 36, 37) 78; (38, 39, 40,41)80; (41, 42; 43) 88; (44,
46^ 46) 84; (46, 47, 48) 86; (48, 49, 60, 61) 8a
Baora l8L^D-(l) 19, 86, 61, 68; (2)66, 67,60; (3)68; (3,4)67; (4,6)
70; (6)78; (6) 76, 78; (7)80; 88, 84; (8) 8a
Booth Cabolina— (1, 2 Bay, 1 DaMii. Eq.) 1; (2 Deaan. Eq.., 1 Brmr.) 8;
(2 Brenr.) 8; (3 DeaaxL Bq., 2 Brei7.) 4; (3 Deaan. Bq., 3 Brs^) 6;
(4 Deeaa. Eq., 3 Brav.) 6; (1 Nottft IL) 9; (1 Kott ft IL, 1 MoOord)10;
(l,2Mfll)18; (2MoOord)18; (1 Harp. Eq.) 14; (3MoOQrd)16; (1,8
McCardCh.)16; (4McOord)17; (1 Harp.) 18; (1 Bai.) 19; (1, 2 Bai.,
1 Btoi. Eq.) 81; (2 Btoi., 1 BaL Eq., 1 Bieh. Eq.) 88; (1 Bich. Eq.) 84;
(lHiU,lHmGh.)86;(2Hm,l,2H01Gh.)87; (2 HiU Oh.) 89; (3 Hill,
1 Biley, 1 BOay Gh., 2 Hill Oh.) 80; (Dn^ey) 81; (Bioe) 88; (Oheves)
84; (1 McMnU.) 86; (1 McMoIL Eq., 2 McMnU.) 87; (2 McMolL, 1
Spears Eq.) 89; <1 Spear% 1 Spean Eq.) 40; 48; (1 Bioh. Eq., 1 Bich.)
8 Spean) 48; (1, 2 Bioh., 1, 2 Bioh. Bq.) 44; (2, 4Bich.)46; (2Bi6h.
Bq.) 46; (1 Strah. Eq., 1, 2 Stiob.) 47; (2, 3 Strob., 2 Stiob. Eq.) 49;
(3; 4 Strob., 3 Strob. Eq.) 61; (4, 6 Strob., 4 Bioh., 4 Strob. Eq.) 68;
(8, 4 Bich. Eq., 4, 6, 8 Bush.) 66; (4 Bich. Eq., 6 Bich.) 67; (6,8Bich.
Bq., 8 Bich.) 60; (6, 7Bioh. Eq., 7, 8 Bieh.) 68; (7, 8 Bich. Eq., 8^ 9
Bioh. L.) 64; (9, lOBidbu L.) 67; (8^ 9Bich. Eq., 1(^ 11 Bieh. L.) 70;
(lOBieh. Eq., 11 Bich. L.)78; (12 Bich. L., 11 Rich. Eq.)76; (12 Bach.
L., 11, 12 Bich. Eq.) 7a
fkinnKn—(l Overt) 8; (1 Oooke, 2 Overt) 6; C, 4, 6 Hay.) 9; (Peck) 14;
dL ft Y. 17; (1, 2; 8 Yerg.) 84; (4, 6 Yerg.) 86; (6, 7 Yerg.) 87;
8 Y«g.) 89; (9, 10 Yeig.) 80; (10 Yerg.) 81; (1 Meiga) 88; (1 Hamph.)
84; (2 Hmn^) 86, 87; (3 Humph.) 89; (4 Humph.) 40; (6 Humph.)
48; (8 Hnmph.) 44; (7 Hnmph.) 46; (8 Humph.) 47; (8^ 9 Humph.) 49;
9, lOHna^) 61; (10; 11 Hno^) 68; (1 Swaa) 66, 67; (2Swaa)68;
a flneed) 80; (1, 2 flbeed) 68; (2Siieed) 64; (8 Sneed) 66; (8;4 Soeed)
14 Schedule.
67; (4, 6 Sneed) 70; (5 SnMd, 1, 2 Head) 78; (2» 8 Hewl) 76; (1 Cold-
weU) 78; (2 OoldweU) 8a
TnA»-(l)46; (2)47; (3)40; (4,5)51; (5» 6) 65; (6)56; (7,8,9)68;
(9, 10, 11) 60; (11, 12, 13) 68; (13» 14, 15) 65; (16, 17, 18) 67; (18, 19,
20) 70; (20, 21, 22) 78; (22) 75; (23» 24) 76; (25, 25^app.) 78; (26>
SO, 88; (26, 27) 84; (27) 86.
VBUfOinMl K. Chip., 1 D. Chip.) 1; (1, 2 Tyler) 8; (1 D. Chip.) 6^ 18;
(1 Aik., 2 D. Chip.) 16; (2 Aik.) 16; (1) 18; (2) 19, 81; (3) 81, 88; (4>
88^84; (5)86; (6)87; (7)89; (8)80; (9)81; (10)88; (11)84; (12)86;
(13)87; (14)89; (15)40; (16, 17)48; (17, 18)44; (18, 19)46; (19) 47^
(20) 49; (20, 21) 50; (21, 22) 68; (22, 23) 54; (23) 56; (24, 26) 58; (25^
26) 60; (26, 27) 68; (27, 28) 65; (28, 29) 67; (29) 70; (30^ 31) 78; (31»
32) 76; (32, 33) 78; (33, 34) 80; (35) 88; (35, 36) 84; (36, 37) 86; (37,
38) 8a
VXBOINIA— (1 Jeff., 1, 2 Wash., 1, 2 Call) 1; (3, 4, 5 Call) 8; (1, 2 Hen. ft M.,
6 Call) 3; (4 Hen. & M., 1 Mnnf.) 4; (1 Va. Caa., 2, 3 Mnnf.) 5; (4 Mimf.>
6;(5Manf.)7; (6Munf.)8; (1 Gilm.) 9; (1 Rand.) 10; (2 Band.) 14;
(3, 4, Band.) 15; (5 Band.) 16; (6 Band.) 18; (1 Leigh) 19; (2 Leij^) 81;
(3 Leigh) 83; (3, 4 Leigh) 84; (4 Leigh) 86; (5 Leigh) 87; (6 Leigh) 89;
(7 Leigh) 80; (8 Leigh) 81; (9 Leigh) 88; (10 Leigh) 84; (11 Leigh) 86;
(11, 12 Leigh) 87; (1 Bob.) 89, 40; (2 Bob.) 40; (1 Oratt) 48; (20iatt>
44; (3 Gratt.) 46; (4 Gntt.) 47; (4, 5 Gratt) 50; (5, 6 Gratt) 68;
(7Gratt.) 54; (7, 8 Gratt) 56; (9Gntt.) 58; (9, lOGiatt) 60; (11
Gratt.) 68; (12 Gratt) 65; (18 Givtt) 67; (13Gratt ) 70; (14 Gratt) 78;
(15 GraU.) 76; (15, 16 Gratt) 78; (16 Gratt) 80^ 84, 86.
West Viboinia~(1) 88.
WisooNsiN^l Pin.) 89, 40, 48, 44; (2 Pin., 1 CSiand.) 68; (2, 8 Pin., S; 8
Chond.) 54; (3 Pin.) 56; (1, 2) 60; (3) 68: (4) 66; (5) 68; (6) 70; (7) 78;
(7, 8, 9, 10) 76; (10, 11, 12) 78; (13, 14) 80; (15^ 16) 88; (16, 17) 84;
(17, 18) 86; (!«, 20) 8a
A MFiRic Ai^ Decisions,
VOL. LXXXYIIL
CASES REPORTED.
AUioAti's Bzaoator T. Bmtm. TrutU 49F^ St 4M..... 610
AppMl of EDiotfe's Bzocaton. InmKramee, 60 Fk. St 76. 626
AiuMtlmug ▼. Vroniaii 3xBcuthmi 11 Mum. 220. 81
liHm CfhiemmcM 82N.T. 197 324
Bakeiiiui Y. TUbot fToyi 31K.T. 366 276
BaltuDore and Ohio Bailroftd r, i/u^...^ .^.r.:.,^. i nr v^ »? ma
BmMttT. Baed SuaUkm 61 Fk. St. 190..... 674
Bvdett ▼. Hq{»poek Salei.... 84K.T. 118 428
Bconett V. Child Hiubcmdamd wife.l9WiM. 862. 692
BidweUv. Webb Taacaikm 10 Minn. 69. 66
BlaaksT. Rector Iboea$tkmi 24 Ark. 496. 780
Boon ft Co. V. Steamboat BallHt.OMfom 40 Ala. 184 761
Booth ▼. AbUman IKspMb 20 Wis. 217 730
Booth ▼.Bonoo Poftmenhip. 33N. Y. 139 372
Bkmjnard T. Hoppock. SMppimg 32N. Y. 671 340
Brobatv. Skillen Shaiffk 16 Ohio St 382. .. . 458
Bcodhead V. Milwaokee. Taxatkm 19 Wia. 624 711
Brown ▼. New York Central R. R.^eylK7eficf 32N. Y. 697 363
Brown ▼. Wentworth Pleading and praeM'S, H. 490 223
^£yg:^.S1f^<S::^:: fCoa«n-K«. 60Pa.St. ^ 634
Bockley'a Appeal Vendor and veiidee.4S Fa. St 491 468
Bockminster v. Backminster Marr'ge and dh^ce.dS Vt 248 652
Bnel V. New York Cent K.'EL Co. iregUgence 31 N. Y. 314 271
Bonker ▼. Rand. Exe/MUons 19 Wis. 263 684
Botler V. Peck Servitudes 16 Ohio St 335.... 452
Chapman V. N. Y. Cent R. R. Cci^ej/^^ence 33N. Y. 369 392
Chatbamaada. CommaQwealth....Laroeiiy 60 Pa. St 181 639
15
t6 Casks Bbpobtxd.
MAMB. SUBJBOr. BVOBC Fi
^To^'^.7:.?^.^\P^^ 16 Ohio Sim... 445
Ode adfl. State OamderfeUkig l9WiM. 120. «7S
Ccdtirt ▼. AUflD Jb'fv and odm'fv. .40 Ala. 16B. 757
OoDiaiOQWMilth T. Ohfttham. hntmg WPa. St 181..'... 639
^^^i^^"^.^^^ »Pa.St299 5M
Conon ▼. Mnbrany Bpt^ petformamEe,.4» Pa. St 88 485
Ooste adfl. State J^idgnmU. 96Ma4S7 148
^^RR^^T.^?!?!!^ 61 Pa. St 288 5»
Gmkcr T. Croeker TnutBtrndnminu 31 N. Y. fl07
DamaiBTille T. Mum CbfciwiMy 88N. Y. 187. 8M
Dittiii^ton t. May»or ete. d K. Y.OoMtHMllmaf km. .81 N. Y. 184. 948
rnmjr T. White Jbmytffona 8CokL288 098
Berlin adfl. Ptaple OMiCiMtoial faw. .38 N. Y. fi» 877
D^OT. N. Y. Gonta.& Ca...aNM»oifteiirrfari..34K. Y.9 418
Darnell ▼. Welih Sk^ppi^ 3SN. Y.43 861
DooglMrljT.MatUMWB Lemdhrdmdim'L»Uo, SOX 128
Sdioli^bparto Mmitmm 38Ala.8B8 748
Bddy T. liTiofrton. BaOmmtB 36 Ho. 487 1»
SlaT.KiMd Chtit 48H.H. 18. 178
BUiotfelBxeeatonb Afpealef ..../flMMtiM 60 Pa. St 76w
BBMnoa T. Smith Mom^ikmB 61 Fk St 90
Bmeryr. Vromaa GyonTfi and iiard.19 Wis. 888 728
^TMHT. MatMn Skififk 61 P^ St 368..... 684
Es parte Sdhob Mmiamm 39 Ala. 888. 748
T.XimbdU WUU 48H.H.486 S18
Fifmeloiie T. Maok | ^^^^*nTif ffeiii [^'"••S**^ W^
Ford ▼. Ai^(diodt JTipu faHhimwift. . .37 lio. 60 174
Foeto T. Smith Agency 80old.474 804
FrddoBheft T. BdmndMA Damagn 38M&S27. 141
Gooq^e T. (Mtiiig JTMond and w/e.48 K. H. 139 196
iMImmr.Bgmt If^me^ 88Vt311 669
GU4de& T. Town ol Beadim yegUgme$ 88Vt68 639
QiaffT. Bonnett Tnui$ 31 K. Y. 9 238
Graham T. Oommonweeliii MUUarfhw 61 Pa. St 266.
^^7^j^^''^^^^^^^\wUnm6i 32H.Y.127 311
Hadl^ T. CSty ol Albanj Mhethm 33K. Y.803 412
HagHiT. DeQellandV«Qfl^....il^pfa*i 84 Ai^ 218. 789
Hart ▼. State 8b poiC/iMto tarn .40 Ala. 38 768
HaTiT-Ptal Skipping 61 Pk St 131.... 689
Heath T,P€rtBnoiithSaffagiBMi» BmhmilhmUtvMV. H. 78. 194
0]]1 ▼. Town of Hev Hwren JMbm«.,......37yt 601 813
Cases Reported. 17
Kami. Sirajscr. Rstobt.
Bcibntok ▼. .£tiia Fire Iiul Ca . . .Inmramet. 82 N. T. 406. 187
Oc^kinsv. Gommonwealth Murder 60Pft..8t 9. 618
Horaimaa ▼. G«rker Mortgogu 49 Pa^ St 289t. 601
HoweU ▼. Cobb Suretyship 2 Cold. 104 691
Hnlett T. Swift Iwnke^ere 33 N. T. 671 406
Husky ▼. MaplM Judgmenia. 2 Cold. 26 688
Ingallabee V. Wood Imiheepere 33N. Y. 677 409
IngenollT. Ingeraoll Marf^ge a^ dk/ee.A9 YtL St 249... . 600
Ingmn ▼. RobbioB Judgmeid$ 38 K. Y. 409. .... 803
iToryr. Baakof theStataof Mo..^eg.<M«rwii6nl9...36Mo.476. 160
Jeokms ▼. Steanka R^leom 19 Wis. 126 876
J<^inMm V, CoQOord R. R. Corp. . .Common canien . .46 N. H. 213^ ... . 100
Johnson v. Hew York Centrel ?ri^.,„»_n» * oo w v aia ^h
Transportation Compwiy. ... . J«www»«w«w .3SN. Y. 610. 411-
Johnaon and Wife V. 'Winona and \ my .. . ,. w- ^ ooa ai
St Peter R R. Co ^Jsegttgtmn ii Minn. aa» w
Keenv. Hartman JETniftaiMl and «(/'«. 48 Pk. St 487 47Sr
''^IvJ^Tr.T'^ [«-!«-*-• «P^8».i» m
KimbaU ▼. Ballard Tbtratioa. 19 Wis. 801 70r
Knowlton V. Smith E^reand adttCr9,MlA.o.Wl 16S
Kramer ▼. Lett JfuficJoiif |>roMeif'ii.60 Pa. St 486. . . . . 6M
lAcey V. Qiboney MorfgeB^Jixturee .96 Uo. 320 14f
lAmy V. Burr PowerwqfaUomeyMldo, 86. 131
Lownadale^. Honnker Salee 20r. 101 466
Lyons ft Co. ▼. Hill ft Co. Oonumm eturkre. .46 K. H. 49. 189
liartinv. Ovlin Bomidane$ 19 Wis. 464
Mclndoey. Haaslton Partnership, 19 Wis. 667. 701
McKeen v. Northampton County ..Corp'iw—taaxifMm. .49 Pa. St 619. 616
MilesT. Miles Homesteads 46N.H.261 206
Miller ▼. Consolidation Bank Partnership 48 Pa. St 614 475
Millikin ▼. Shapleigh BatihsamihaMngMTAo. 696 171
••KSilt'j^i^^" U^-"^ «>^- »« '»
Minor v. Chicago and North- ) d n ^ m tvt* it a a*va
western R'y & \BmimeiUs 19 Wis. 40 670
MitcheU T. Ladew Trusts 36 Mo. 626 166
Mittnight ▼. Smith FraudulH oom^'«. 2 C. E. Oreen, 269. 233
Montour v. Pnrdy Ouard^n and wanLll Minn.384 88
MoneUv. Irving Fire Ins. Ca..../iiJtirafiee 33 N. Y. 429 896
Newbranv. Snider Partnership. 1 W. Va. 163.. .. 667
^S^h^S^.^*^ \ Attorney and cHenLSeUo. 160 138
^H^U^T!!*^*.^..^.^.!: [^V'H/e-ee 49 Pa. St 60 482
Ax. Dae. Vol. LXXXVni-S
18 Cases Reported.
Nasi. Subject. Rbpobt. Pa«i»
^ Rlh^n"'^!"^!* ^^. ^,^.'!'. J: I ^^^'^^ 49 Pa. St. 101 491
Nott and Wife r. Stodtlard. Slander 38 Vt. 25 635
People ▼. Devlin CoMtUuOonal law, .33 N. Y. 269 377
Person V. Chase OifU 37 Vt 647 630
Petenn v. Chemical Bank Ex*rs ami adnCv. .32 N. Y. 21 298
Porter V. Milwaukee TcaaUon 19 Wis. 624 711
Frioe V. Lyons Bank Umiry 33 N. Y. 65 368
Kay V. City of Manchester Highwaytt 46 N. II. 59 192
Keeside's Bxecutor v. Roeside Agency 49 Pa. St. 322 503
Richardson v. Cook C<nMlUuti(]nal taw, .37 Vt. 599 622
Richardson v. Farmer Partnersliip 36 Mo. 35 129
Roes V. Wortbingtou Mortjageji 11 Minn. 438 95
Schmits V. Schmitz DeetU 19 Wis. 207. 681
^"^R R Co^^.^.*!'\*!'!^T!'.' 1 ^««»'^«'*^- '« ^^^i""- «2. 59
^m^"^.^,^"^,,^!'^.^^^ 4yPa.SL 118 497
Shinbom ads. State WUnfMes 40 N. II. 497 224
Shippey ads. State AfurJer 10 Minn. 223 70
Skinner v. Wilder Ch-owing trees 38 Vt. 116 645
Sloatv. Royal Ins. Co. Insurance 49 Pa. St 14 477
Smith V. Smith Taxation 19 Wis. 615 707
Starbnck r. Dnnklee Pleading and praclO Minn. 168 68
State V. Cole .CounUrfeUing 19 Wis. 129 678
State ▼. Coflte Judgments 36 Mo. 437 148
State ads. Hart Ex fost facto Unos ,A0 AXvl, 32 752
State y. Shinbom WUnesses 46 N. U. 497 224
State V. Shippey Murder 10 Minn. 223 79
State ads. Swang Criminal law 2 Cold. 212 593
State V. Young Forgery 46 N. H. 266 212
Stttte ex i«L White v. Winn TaxaUon 19 Wis. 304 6S9
Stewart ▼. Magness ,8kenffs 2 Cold. 310 598
^^V6o^^l^!^^,,^^M 32N.Y.333 332
St. John Y. RoberU Neg, ijittruments. . .31 N. Y. 441 287
Strong V. Sun Mutoal Ibm. Co. ,.,,fn8Hrance, 31 N. Y. 103 242
Swang ▼. State CrmdmUlaw 2 Cold. 212 593
Swansey v. Parker Neg, instruments, .50 Pa. St 441 549
Swift V. Stark Judgments. 2 Or. 97 463
Tkpley V. Tapley {^^^^^'^^^IZdi [lO Minn, 448 76
l^ylor T. Jenkiiis MiUtary law 24 Ark. 837 773
Taokermaa ▼. Brown Ineurauos 88 N. Y. 297 886
Vallev. Cam's Adflnaiflntar....ifMDfv 96Mo.675u 161
Casbs Rkpobtsi». 19
W«dT.H«i7 )**^'Xi;«.«.['»^*'« •"
Weakland V. HoffinAn Vembr and vemUeM FtL. St. 513.... 560
Wells V.Cook DeoeU 160hio8t.67 436
White ▼. HntchingB Deeds 40 Ala. 253 766
Wluto T. KeUia SedueHon 31 N. T. 406 282
WhHtier T. Town of Fnnklm . . . . IKtbieiief 46 N. H. 23. 185
Wilder T. Bn6kM Fratidmet comei^a. 10 Minn, 5a 49
Willeyv. Day Vendor and vendecSl ^tL, St. 61 562
Wilson ▼. Wood Deeda 2 C. K Green, 216. 281
Winn ads. State ez reL White.... roxation 19 Wis. 804 689
^^^^wloS^^.^*!".^^ ^^
WoodT. Stone ConiraeU 2 Gold. 869 601
Tonne ads. State /bryery 46N. H.266 219
CASES CITED.
PAGE
Abbott T. Batler 270
Abbott T. JohnBon 184
Abell ▼. Warren C31
Abemethy v. Commoiiwaalth.. . . 524
AUeman ▼. Roth 704
Abney ▼. Kingsland 320
Abrey ▼. Newman 220, 221
AcUey ▼. Kellogg 417, 418
Acton ▼. Dooley 156
Adams T, Adams 82
Adams ▼. Blecker*. 128
Adams ▼. Oapron 574
Adamson v. Cummins 781
Adden v. White ML R. R 115
Addicken v. UuQiphal 55
Addington t. Allen 133
Addison v. Crow 687
Adelphi Loan Ass'n v. Fairhurst. 474
Adriance v. Amot 321
JRtDA Kat Bank r. Manhattan L.
Ins. Co. 531
Alabama and Tennessee River3
K. R. Co. V. Kidd 764
Albany City Bank v. Schermer-
hom 740
Aloom's Ex'r v. Cook 556
Alden v. N. T. Cent R. R Co.88, 427
Alder v. Beall ?12
Alexander's Cotton 776
Alexander v. Datcher 590
Alexander v. Walter 59
Alice Pack wood, Snocession of. . 308
Allen y. Ch>mme 281
Allen V. Addington 444
Allen V. Crary 734
Allen V. Dodd 603
Allen V. Hawley 364, 365
Allen V. Hooper 55
Allen v. Knight 513
Allison V. Phosnix Ins. Co 482
AUred V. Bray 144
Alton ft S. R R Co. ▼. Carpen-
tor 110
Alvarez r. Brannan 81
AM. Bliss 366
Ames V. N. J. F. Co 684
Amondaon y. Severson 282
Amoskeag Mfg. Co. v. Worcester 117
AndersonT. RLumgartner 160
Andenon t. Kerns Draining Co. . 724
FAGI
Anderson ▼. Moe 185
Andorer ▼. Qonld 94
Andre v. BoHmaa 674
Andrews t. Avbtv 758
Andrews ▼. Roaoh and OiAy. . . 764
Andrews y. Snlliyaa 705
Angely. Smith 730
Anninv. Annin 66
Anthracite Ins. Ca y. Sears .... 531
Antrobns y. Davidson 592
Apperson y. Ins. Co 181
Appleton V. FuUerton 281
AppoUo 367
Arctic Fire Ins. Co. y. Austin. . . 359
Arnold y. Jones 705
Amot y. Erie R'y 291
Amonx y. Phelan 182
Arthur y. Broadnax 75
Arzbacher v. Mayer 241
Aspinwall y. Ohio R R. Co 581
Associated Firemen's Ins. Co. y.
Aasum 481
Astor y. Miller 328
Atchinson ft N. R. R. Co. y.
Gough 115
Atchison etc R R. Co. y. Black-
shire 118
Atkins y. Bordman 280, 281, 282
Atkins y. Kinnan 155
Atkins y. Town of Randolph. ... 265
Atkinson v. Atkinson 212
Atlantic Dock Co. v. City of
Brooklyn 267
Atlantic Ins. Co. y. Manning . . . 348
Attorney -General y. Birminffham. 5.38
Attorney-General y. Eau Cuiire . 725
Attorney-General y. Mid -Kent
RV 538
Attorney-General y. R R. Co. ..537,
538
Atwater v. Bodfish 281
Anltman, Taylor, ft Ca y. Ober-
meyei 54
Avery v. Maxwell 492, 493, 495
Avery v. Stewart 191
Aveson v. Kiunard 358
Ayres v. Farmers* ft M. Bank. . . 174
Babcock v. Sooville
Bachman v. Crawford 508
2t
22
Cases Citsd.
T.OharitoQ 358
Baggs's Appeal 762
Baffnall T. Underwood 183
BaSey T. Hanf ord 184
Bailey ▼. Mayor oie. of K. ¥.200, 261,
268^271
Bairdv. Honaeboldar 667, 669
Baker ▼. GrandaU 444
Baker ▼. Frink 282
Baker ▼. Lewia 224,674
Baker T. Stonebrokv 690
Baker ▼. TroMer 321
Baker T. Young 682^634
Balch T. Patten 607
Baldwin ▼. liajor of Kov York..S7Q,
271
Baldwin, Peopla ez leL t. Hkwb. 264
BaUv.Bamett 476
BallT.Vaaon 181
Ballard T. Bugefcl 297
Ballard T. DywA 280
Baltimore and Ohio R. R. Co. ▼.
Skeeb 667
Baltimore and (Mo R. R. Oow ▼.
Wortiungion 88
Baltimore eto. R. R. Ca ▼. Gal-
lahne 681
Baltimore eto. Steamboat Co. ▼•
Brown 471
Baltimore, P., ft 0. R. R. Go. ▼.
Tuniing 114
Bangor £ P. R R. Ca ▼. Mo-
Comb 114, 116, 120^ 121
BankT.MoLeod 309
Bank of Angoata ▼. Barle 303
Bank of California T. Shaber. .. . 270
Bankof OolnmbiaT.Kewxxnnb.. 464
Bank of Commeroe r. Be^gr 178
Bank of Metropolia r. New Bog-
land Bank Tl72; 174
Banked MiMODziT.MeKni^t.. 137
Bank of MiMODzi ▼. Wbhe 166
Bank of Monroe r. CDl?«r 228
Bank of Montreal ▼, Thaj;er 444
Bank of Nortk Amenoa r.
Wheeler 466
Bank of Wooater ▼. Sterens 704
Barber T. Harria 694
Barber T. Slade 199
Barber T. Town of Baaez 616
Barclay ▼. Plant 66
BaroUy t. Qniokailyer ML Co. . . • 309
Barden r. Saperviaon of 0. Co. . 707
Bardr.Poole 303
Barham T. Tnrberille 663
Barker, Bz parte 768
Barker ▼. Coflin 201
Barker T. Haakell 230
Barker T. Stetaon 678
BarlowT. Lambert 764^ 766
Barlow V. Scott 344
Barnard ▼. Eaton 746
BameeT. Brown 444
rao*
V. Patch 220
Bamett ▼. Taneooe 767
Bamnmr. State 211^ 219
Barrett T. Barrett 310
Barrett ▼. Third ATe.RR. Ca. 427
Banow v, Landry 467
Barry ▼. Croaakev 442; 443
Barry ▼. Eonitable L. A. Society. 633
Bartell t. Arannadorf 677
Bartholomew t, Bentiey 444
Bardett T. Jadd 684
Bartiett T. Wella 660
Bartley ▼. Riohtmyer. . .288; 284^ 287
Barton T. Kane 81
Bateav. BL Cant. R. R. Ca...61, es
Batea ▼. Stanton 160
Battia T. Hamlin 736
Baugher t. Nelson 767
Banghman ▼. Shanaium ft A. R.
R.Ca 488
Banman r. Banmaa .667, 669
Baxter r. Dnren 666
Baxter t. Second Ato. R. R. Ca 360
Bayard T. Malcolm 183
Bay ley ▼. WiUdna 137
Bay State Iron Ca r. Goodall. . . 681
Beala t. Benjamin 871
Beala ▼. Home Ina. Ca 406
Beala ▼. Olmatead 439
Bean ▼. Coleman 282
Beardr. Beard 60,62
BeardT.Enox 696
Bearddee T. Bichardaon 126
Beama r. Colnmbia Ina. Ca .... 348
Beanohamp v. State 72
Beckr. EaatBifer FenyCa... 859
Beckett T. SeloTcr 308
Bedell'a Appeal 66
Bedford T. fia^diaw 442,444
BeebeT. Ayzea 208; 205
Beera v. Hooaatonio R. R Ca . . 422
Beedey ▼. Hamiltoa 442,443
BeggT.Begg 684^748
BeKQngT.TJoiiklin 181
Bellaaia T. Bufariok 331
BeUT.Bdl 199
Bell T. Hnmphriea 366
BeUr.MoRuett 187
Bellefontaine B'y Ca ▼. Hnntflr. 486
Belt T. Wortiiington 733
BemiaT. Rand 686^687
Bender ▼. &iyder 690
Benedict ▼. Warriner 184
Benjamin T. McConnell 684
Bennett ▼. ^ram 191
Bennett ▼. Child 707
Bennett T. Fan 186
Bennett ▼. Keehn 748
Benaon ▼. Mayor eta of K. T, . . 264
Benaon ▼. Thompaon.
Bentiey V. Bnatacd. 766
Berkahire Woollen CaT. Pkoetor. 4ffl,
419
Casks Citsd.
28
YASa
S21, 322
06¥€ny T. BonDS ■•••• •«•••■•• 7oo
BidderT. North Steftndahm By 281
Bienie v. Dord. 430
Bigelcfw ▼. Hartford Bridge Oo. . 636
Bigelow ▼. Kinney 630
B&low T. Weetem Wia. B'y Co. 114
BOee ▼. Oommomreelih. 217
Bums ▼. Figofefe 410
Bbbeev.mil 82
BiaseU ▼. Hendin 400
BineU ▼. N. T. Genl K.R. Co.. 836
Bivene ▼. Fhifer 221
Boardmau ▼. Mortyn 232
Board of Supervuon of Bamaey
Coimty T. Ueenaa 106
Bodinev. Glading 489,490
Bond ▼. Kenoeha .... 704
Bonnaffe ▼. Fenner. 669
Bonnell V. Gray 706
Bonner v. Marsh 171
BooIt. Mix 222
Boom CkKT. P^ttenon 116, 117
Booth T. Ableman 673^ 676^ 734
Booth V. Booth 611
Booth V. Woodbury. 714,720
Boston V. Conumne 767
Boston and Lowell R. R. Ca ▼.
Proctor / 201
Boston ft Mo. R. R. ▼. Mont-
gomery 119
Boston etc R R Oo. V. Proctor. 207
Boston etc RV Cc ▼. TambnlL 119
Boston ft W. R. R Corp. r. Old
Colony R R Corp 117
Bostwick V. Dry Goods Bank.. . . 297
Bound ▼. Wisconam Cent. R R
Co 726
Bowditch Mut. Ins. Co. ▼. Win-
slow 184
Bowen r. Atlantic etc R R Cc 116
Bowen v. Jones 600
Bowen v. N. T. Cent R R Cc 420
Bowen v. Peters 366
Bowers y. Porter. 222
Bowman ▼. Sanborn 226, 227, 228
Bowman ▼. Smiley 610
Bowman V. Van Knran 706
Bowser r. Cravenar 471
BoycoT.Lake 690
Buydv. Byrd 286
Boyle ▼. Brandon 286
Biackr.Black 181
Blackler T. Webb -....220^221
Blackman r. Banmann 730
Blagge ▼. Haley 287
Blair ▼. Erie R'y Cc 337
Blanchard ▼. Porter 63
Bland r. Adams Bzroeas Cc .... 766
Blodgett V. aty of Syracuse 260
Bltiodffood ▼. Mohawk ft H. R R
CcT 121
Blossom V. Bari^tt 320^321
TAmm
BlosMMn v.Grifflin 347
Blnmer T. PhcBDix Ids. oik 848
Blythe T. Blythe 667
Bnek^v.Mareh 132
Brackett v. Gilmore 69
Bradbom ▼. Morria 280
Braden v. Gkrdner 367
Bradley ▼. Broaghton 759
Bradley V. West 166
Bragff V. Maasie 436
Brandon v. People SZO, 921, 322
Brashear ▼. Maaon 761
Branns v. City of Green Bay 711
Brasil v. Moran 476
Breasted v. Farmers' Loan and
Troat Co 344^346
Bretton v. Lethnlier 222
Brewster v. City of Syraeose 263
Brewster v. Sime 297
Bridget r, Hames 613
Briggs's Appeal 690
Briggs V. French 307
Briggs ▼. Hubbard 626
Briggs V, Taylor 618
Brightman v. Inhabitants of Bris-
tol 269,270
Brinckerhoff v. Board of Educa-
tion 270
Brisbine v. St. Paul etc R R
Cc 67
Brittonv.Cil^of NewYork.... 262
BrobstT. Skillen 462
Brockman ▼. Metcalf 291
Brodie y. Howard 366
Bromley y. Elliott 669
Brookbank t. Kennard 65
Brooke y. Washington 134
Brooks y. Buffido and Niagara
Falls R R Co. 422
Brooks y.Byam 182
Bronwer y. Appleby 391
Brouwery. flm 391
Brown's Estate 615
Brown y. Beatt^ 113, 114
Brown y. Bennison 417
Brown y. Donnell 198
Brown y. Dunham 661
Brown y. Eastern R R Oc 201
Brown y. Elliott 427
Brown y. HiflKinbotham 668
Brown y. KeUer 212
Brown y. Lester 187
Brown v. McCnne 661
Brown y. Proyidenoe etc R R
Cc 118
Brown y. Ramsay 221
Brown y. Spiyey 65
Brown v. Stone 281
Brown y. Watson 193
Brownson y. HuU 696
Brubaker y. Taylor 690
Bruen y. Ogden 676, 734
Bruffy. Midi 444
94
Ca8£8 Cited.
PAOI
Bnmswick ft A. & K. Go. v. Mo-
Laren 119
Bninton T. Hall 281
Bryan ▼. MiUer 704
Bryan V. Nix 167
Buoier ▼. Roborta 65
Buck V.Aiken 675
Buck V. Colbath 676
Buckley'a Appeal 471
Backley v. Barber 368
Buckman v, Brett 366
Buddy. Brooke 820, 684
Buell V. New York Gent. R. R.
Co 335
Bn£EBJo aty Bank v. Howard. . . 349
Buford V. Smith 160
Bulkley v. Barber 365
Bulkley v. New York and New
Haven B^ B. Co. 496
Bnllard v. Randall 178
BuUock V. Hubbard 235
Bullock V. Williams 746
Bump V. Sannor 280
Bnmatead V. Read 758, 761
Bunn^r v. Storm 221
Burbank v. Roekinghmn F. Ins.
Co. 482
Bnrd V, Commonwealtli 658
Burden v. Stein 761
Bnrdeno v. Amperse 66
Burdett V. Silsbee 76^761
Burffin v. Patton 221
Bnrhans ▼. Tibbitts 69
Burke v. Birchard 733
Burke v. Broadway and Seventh
Ave. R. R Co 427
Burleigh v. Coffin 199
Burley v. Russell 661, 662
Burnett v. Lynch 605
Burnett v. WestfaU 181, 182
Burnley v. Duke 758
Burr V. Beers 97, 100
Burrows v. Purple 659
Burt V. Wiggleaworth 118
Burton v. f&inholt 631, 632
Bury V. Hartman 602, 603
Butcher v. London ft S. W. R R.
Co 671
Butler, In Matter of Bstate 309
Butler V. Hobson 183
Butler V. Milwaukee etc. R'y
Co 360
Butte Co. V. Boydston 116
Butts V. Phelps 141
Ca1)ot V. Haskins 128
Calder v. Bull 756, 766
Caldwell V. Murphy 358
Call V. Call 658
Callv.Oray 748
Cal. Pac. R R. Co. V. Armstrong 120
Calvin v. Bruen 462
Calwell V. Prindle 691
FAOe
Calye's Case 406,407,408
Campbell V. Babbitts 696, 705
Campbell v. Campbell 657
Campbell v. Foster 241
Campbell v. People 76, 624
Campbell v. Shrum 487
Campbell V. State 72
Campbell v. Town of Fair Haven 622
Campbell v. Wilson 230
Canaday V. Krum 320, 321
Cannon v. Alsbury 674
Cspers V. McKee 281
Carley V. Wilkins 430
Carli V. Stillwater St. R'y etc.
Co 67, 118
Gsrlisle V. Wallace 644
Caroian v. Townaend 464
Carmichael v. Buck 297
Carnegie v. Morrisson 169
Carpe v. Overton 631
Carpenter v. Commonwealth 756
Carpenter v. Halsey 320, 321
Carpenter v. Jennings 121
Out v. Breese 65
CfeuT V.Estill 222
Carr v. Northern Liberties 230
Oanollton Bank ▼. T^yleur 171
Carter v. Hobbs 409
Carver v. Jackson 150
Case V. Cushmao. 847
Case V. Price 182, 184
Case V. Phelps 297
Cashill V. Wright 407
Cassedy v. Town of Stockbridge.617»
641
Castle V. Noyes 150
Catchings v. Manlove 630
Catlin V. Springfield Ins. Co. . . . 345
Caverly v. Jones 223
Cazeauz v. Mali 444
Cecil V. CecU 150
Central Bank v. Copeland 603
Central Nat. Bank v. Hume 633
Cent. Ohio R. R. Co. v. Law-
rence 497
Chadboume v. Town of Newcas-
tle 267,268,269
Chamberlain v. Dover 722
Chamberlain v. Enfield.. 189, 192, 193
ChamberUin v. Willson 320
Chaml)ers v. Funy 495
Chambers v. Sallie 65
Champlin v. Rowley 404
Chandler v. Cheney 696
Chandler v. Sprague 171
Chapin v. Fellows 632
Chapman v. Mcllwrath 530, 531
Chapman v. New Haven R. R.
Co 367,359
Chapman v. Oshkosh ft M. R. R.
Co 113, 114, 116
Chappell V. Dann 82
Charles v. Hoskms 693
Cabeb Cited.
26
TABM
Charles Bifw Bddfltt ▼• Wamn
firidga. 766
Chase t. Waahbom 644
Chantanqne Ooonty Bank ▼. Bia-
ley 739
Cbaiitaiiq[aa Co. Bank ▼. White. . 97
Caieevea ▼. Ball 221
Cheney ▼. Boaton ft M. B. B 291,
202,203,206
Chieago ▼. Major 621, 662
Chicago ft I. B. B. Ca ▼. . . 116
Chicago ft S. B. B. Co. ▼. Blake. 117
Chicago etc B. B. Co. ▼. Boyce. 669
Chicago etc. K B. Co. ▼. Oirey. 116
Chicago etc B'y Cc ▼. Chicago
ftKB.B.Co 117,120
Chicago etc B. B. Cc t. Engle-
woodCBVCo 120
Chicago otclL B. Cc ▼. Gaofse 674
Chicago ft N. W. B'y Cc ▼. Goaa. 497
Caiicago ft A. B. B. Cc ▼.
Jaooba 486
Chioago ft A. B. Bb Cc ▼.
Joiwt etc B'y Co 121
Chicago ft Pac K B. Cc v.
8t^ 118
Chicago etc B. B. Cc ▼. Parks . 207
Chicago etc B'y Cc ▼. Smith. . . 114
Child ▼. Stair 63
Childs T. dark 331
Chikb T. Conner 66
Chipman ▼. White 178
ChnaW v^. Christy. 183
Chnrch ▼. Boland 490
Chynoweth y. Teoney 745
Ciocimiati ▼. White 64
Cincinnati ft O. Bb B. ▼. Mhna. . 118
Cincinnati etc B^ Cc v. Long-
worth 114, 117
Citiaens'Ina.CcT. Glaigow.... 243
City Bank ▼. Tnoker 182
City Coondl of Angosta t.
liarks 121
City of Atchison ▼. Twine 270
City of Bloomington ▼. Miller. . . 118
City of Chioago ▼. Wheeler 121
Ci^ of Dabnqne v. Maloney . ... 67
City of Lookport ▼. Fitts 182
City of Logensport v. McMillan . 119
City of Mem^ v. Bolton 118
City of New Albany ▼. Meekin. . 618
City of Philadelphia v. Collins . . 638
Ci^ of Bochester v. Town of
Bosh 270
City of Soath Bend ▼. Hardy. . . .320,
321, 322, 323
City of Winona ▼. Hnff 67
Clapp ▼. Beardsley 758
Clarkv. Clark 601
Clarke ▼. Fitch 284
Clark ▼. Fry 193
Clark T. Manran 167
Clark ▼. N. E. M. F. Ins. Co. . . . 482
TAME
Clark ▼. BandaU 141
ClarkT.Beed 182
Clark ▼. Skinnar 734
Clark v.Wyatt 230
Classen ▼. Leopold 409
Clear Lake Water Works Cc t.
Lake County 270, 267
Cleveland, C, ft C. B. B. t. Ber-
tram 201
Clereland ▼. N. J. Steamboat Cc 427
Cleveland ft P. B. B. Cc ▼. BalLlH,
119
Clifford ▼. Brooke 442
Clinton ▼. Hope Lu. Co 348
Cloud V. El Dorado Co 704
dute V. Wiggins. 407
Craft ▼. Webster 602
Crager v. Donglaa 69
Cia^ V. State of Missouri 603
Crane v. Marshall 76S
Crane ▼. Meginnia 668
Cranwell V. Ship Fosdiok 765
Crawford V. Logan 65
Crenshaw V. Davenport 820
Cresswell V. DeweU 613r
Crippen v. Brown 183, 184
Crocker v. Crocker 297
Crofnt V. Brandt 181
Cross V. Andrews 407
Cross V. Noble 662
Crow V. Buby 746
Crowell V. Meconkey 571
Crozier v. Boston ft N. T. ft S.
Stb. Co 409
Coates V. Boberts 671
Coffin V. Morrill 196
Cohen V. Frost 671
Cohen v. St. Louis etc. B. B. Co. 120
Colchester v. Boberts 281
Cole v. Marple 632, 633
Cole V. Parker 156
Colegrove v. N. T. ft N. H. B. B.
Co 357,359
Collier v. Windham 782
Collins V. Hoxie 220
Collins V. Tillou 684
Colroan V. Post 471
ColseU V. Bndd 690
Colvill V. St. Paul ft C. B'y Co. . 115
Colyer v. Higgins 462
Combs V. Winchester 322
Commissioners of Kensington v.
County of Philadelphia 269
Commissioners v. Walker 615
Commonwealth v. Boston ft M.
B.B.CO 104
Commonwealth v. Burrell. . 636
Commonwealth v. Call 444
Commonwealth v. Cole 462
Commonwealth v. Com'rs 751
Commonwealth v. Daniels 520
Commonwealth v. Drew 7S
Commonwealth v. Eastman 8)
26
Cabbs CmD.
FAOB
Commonwealth ▼• Haclaj 4ii
Commonwealth t. Jeffiries. . . .81, 230
Commonwealth ▼. Lerwia 756
Commonwealth ▼. l^den 321
Commonwealth v. Moeler 73
Commonwealth ▼. Mycall 216
Conmionwealth y. Prioe 320, 680
Commonwealth y. Rogers 71
Commonwealth y. Rnnnelw 267
Commonwealth y. Sankey 219
Commonwealth y. Shaw. 820^ ^1, 322
Commonwealth y. Standard. Oil
Co 618
Commonwealth y. Swope 687
Commonwealth y . Webster 74
Commonwealth y. York 71, 74
Commonwealth Ins. Co. y. Crane. 498
Comstock y. Ames 442
Comstock V. Van Densen 280
Conant y. Conant 601
Conklin^ y. Shelley 748
Connecticut etc. K. R. Ca y.
Cooper 681
Conn. Mat. L. L Oa, y. Bar-
roughs 633
Conner y. State 76
Conner y. Winton. 126
Connor y. N. Y... 386
Connoes y. Heir 676
Conway y. Cable 629
Conway Tool Co. y. Hodson R.
Ins. Co 482
Cook V. Elliott 128
Cook V. Gray 629
Cook V. Holmes 584
Cook y. South Fnrk Conun'rs. 118» 121
Cook V. Waters 396
Cook V. Whipple 396
Cooke y. Hunter 768
Cookendorfer v. Preston 206
Coon V. Fry 94
Cooper V. Sanderson 81
Cooper V. Singleton 662
Cooper V. Smith 495
Cooper V. Sunderland . . ; 95, 730
Cooper V. Witham 473
Coosa & Teiin. Riyers R. R. Co.
y. Moore 751
Cope y. Alden 371
Cope y. Wheeler 371
Cornelius y. Commonwealth. 321, 322
Comely y. Marckwald 185
Corwin y. Walton 144
Cottony. Wood 423
Cott y. Selden 487
Cottrell, Ex parte 6o7
Coulter y. Amer. eta Express
Co. 274
Councils of Reading y. Common-
wealth 636
County of Allegheny y. Gibson. . 267,
268,269
Goursin's Appeal 364^366
CousentT. Ros9...«« 279
Coweta Falls Mfg Ca ▼. Rogers. 612
Cowling y. Higgmson 277, 280
Cox, Brainard , ft Ca y. Peter-
son 762,764,765
Cox y. Chaxlestoii eta Ins. Ca . . 181,
182, 183
Coxy. Cox 658
Coyle ▼. Osnles 367
CumberUad Valley R. &'■ Ap-
peal 538
Cnmmings y. C^ o< WiUuuns-
port 118
Cummings y. Smith 320
Cummins y. Des Moxnes ft St L.
R'yCa
Cunningham y. Cassidy...: 686
Curriery. BostonftM. R.R.... 188
CnrtLB y. Spitty 330
Curtis y. St Panl eta R. R. Ca . 114^
115b 119
Curtis y. Whipple 725
Gushing y. Rice 612
Cuthbert y. Kuhn 332
Cutler y. Binney 409
Gutter y. BuUer 196
Guyler y. Decker 274
Dabyy. Eriosson 800, 590
Dtlhy y. India and London Life
Assurance Ca 526
Dale y. Lincoln 54
Daley y. Korwioh and Woroester
R. R. 422
Dan y. Brown 366
Dana y. N. Y. Cent. R. R. Ca . . 418
Dand V. Kin«cote 279
Dandoy. DoU 464
Daniel y. Goodall 590
D'Arcy y. Morris and Ketohnm. 465
Dayenport y. Hanbury 220, 222
Dayenport y. Ijamaon 281
Dayidson y. Keyes 171
Dayidsony. Mayor of N. Y 267
Dayidson y. Tulloclc 444
Dayies y. Stephens 281
Dayis y. Bdramey 167, 170
Dayis v. Bangor 192, 193
Dayis y. Basiter 82
Dayis y. Bowsher 173
Dayia v. Charles R. K R. Cal08b 109
Dayis v. Garr 363
Davis V. Howell 235
Davis V. Hudson 95
Davis V. McCready 178
Davis V. Oswalt 781, 782
Davisv.Roby 322
Davis V. Seneca 368
Davisv. Smith 308
Davis y. SUte 680
Dawson v. Champney 408
Dawson y. Miller 83
Dawson y. St. Pteol eta Ins. Ca. 67
I
Casks Cited.
37
PAOB
DufT. Ofraa 902, 206
Dean ▼.Brown 156
Dean ▼. Willianw 183
Dearborn ▼. Bostoa ete. K R. . . 114
Deannon ▼. Blackburn 773
DeBoir V. People 384
De Buol ▼. Froeport eta B'y Co. 114
Decatur ▼. Paul<Ung 751
Decker v. Fnmiaa 344
Decker ▼. Patton 310
Do Cordovu ▼. Smith 480
Do Haven ▼. Barthokmiev. . . . r. 472
Delaware eta B.B. Co. T.Biinoii 121
Den ▼• Hardenben^ 696
DenniBT. Eddy 184^ 186
Denton ▼. LaviDgston 82
Denfa Appeal 617
DeRoov.Todar 660
Desha ▼. Pope 167, 171
Detat>it & H. & R. Ca t. Van
Steinbora 485
Devlin T.^ke 297
Devore V. Ellia 282
De Witt ▼. Barly 187,710
0e Witty. Hays 724
DeWitty.MonJa 733
De Witt ▼. Swift 182
Dey T. Poaghkeepaio Mnt. Lu.
Co 341
Dickinson ▼. Gky 207, 435
Dieffenderfer ▼. Fisher 667, 568
Dietrich v. Penn. & & Ca 207
Dignowitty ▼. State 544
DUleber ▼. Home life Lu. Ca. . 848
Dinehartv.TownofLaFayetta. 725
Doddington ▼. HaUaU 366^868
Dodge ▼. Hooper 368
Doe ex dem. Abbott ▼. Hnrd. ... 54
Doe y. Dixon 345
Doe y. Joinyille 221
[»tty. Hart 705
ev. Vodidn 156
Dolph y. Ferris 492
Donahoe y. Biehardi 725
Donald y. Hewitt 50,364
Donley y. Hays 158
Doonell y. Jones 189
Dcmoghne y. County of Fhiladel-
phia 268^269
Donohoey. Ladd... 69
Donovan y. Dymond 366
Dotyy.Brown 149
Doance y. Dow 435
Dovaaton y. Payne ^494
Dow y. Updyke 181, 182
Dowdingy. Smith 221
Downing y. Marshall 222
Drake y. Orant 444
Drake y. Philadelphia & B. & R.
Ca 497
Draper y. Baxton 183
Dreskill y. Pterish 184
Drewy. Kimball 205
riev
Drewy. Satton 645
Drexely.Man 562
Druetzer y. Lawrenoe 748
Drory y. Midland B. & Co 115
Dnbbs y. Finley 487
Dubois y. Beayer 129, 652
Dubois y. Johnson 657, 668
Duchess of Kingston's Case 150
Duffjrv. Mayor eta of Baltimore. 268
Dukes y. State 75^524
Dummer ads. Seleotaaeii eto 67
Dunham y. Cox 234
Dunham y. Sherman 188^ 184
Dunham y. Wyekoff 734
Dunn y. State 524
Dunston y. Imperial Qas Ca .... 498
Dnpont y. Hutchinson 221
Dnpnis y. Chicago eta Vj Co. . .117,
118
Durham y . Hcaton 782
Duryeay. Mayor eta <d K. Y... 267
Dutch Churoh y. Mott 98
Dutton y. Warsohaoer. 603
Dwight y. Ca CommVs of Hamp-
den 102; 106^ 10^ 116
Dyckman y. Mayor. 758
Dyery.ErieB'y 274
Eadiey. Slimmon 81,633^684
Early. De Hart 457
Eamshaw y. Stewart 632
East Brandywine eta & & Ca
y.Banck 118
Eastbum y. Kirk 181
Eastman y. Mayor eta of N. Y. .267,
268
East Pa. B. B. y. Sester 119
Eaton y. Ayery 44^443^444
Eaton y. Campbell 768
Eaton y. Jaques 826, 330
Eaton y. North 692
Eayes y. People's Say. Bank. 194^ 195
Eberharty. Chicago eta B'yCo. 118
Eckert y. Long IsGind R. B 274
Eddings y. Seabrook 120
Edgar y. deyenger 234
Edgar y. Greer 152
EdgeU y. Tucker 178
Edmandsy. Boston 119, 121
Edmands y. Mut eta Ins. Co. . . 347
EUenberger y. Prot M. F. Ins.
Co...r. 549
Eldy. Gorham 383,586
Elder y. Larrabee 364^ 366, 368
Elder y. Bobinson 489
Eikin y. People 462
Elkins y. Boston ft M. B. B ?03
Elliott y. Bryan 532
Elliott y. BLnott 782
Ellis y. Lamme 161
E. Luckenback, The 182
Ely y. Superyisors of Nia^an
County . .
fiagara
28
Cases Cited.
PAOB
BfiKftTBon V. Simpaon 348
Bmery r. Fowler 150
Endflmi ▼. Simpwm. 368
Eppinger v. Ouiepa 632
Ene R'y Co. ▼. Steiger 418
Erkenbnch t. Erkenbrach 658
Bmst y. HudBon Blyer IL & Co. 359
Erwin ▼. Dandaa 781, 782
Eihridge ▼. Jackaon 184
Evans V. Browne 386
Evans ▼. Suiders 348
Evansville etc. R. R. Go. ▼. Fits-
patrick 116
FEdrchild v. Chastellenz 696
Fales v. Enssell 195
Falkner v. Ohio etc. R. R. Co. . . 208
Farish k Co. v. Reigle 369, 621
Farmers' L. & T. Co. v. Commer-
cial Bank of Racine 734
Farmers' & M. Bank ▼. Champ-
lain T. Co 202
Farmer v. Storer 183
Farusworth y. Chase 204
Farnum v. Piatt 281
Farr v. Newman 305
Farson's Aroeal 487
Faucett v. JNicholas 409
Fanvia v. City of N. 0 267
Fawcett v. N. Y. & N. M. R. R.
Co 463
Faxon v. Hollis 230
Fearing v. Irwin 270
Fcamv. Ward 632
Fclrath v. Schonfield 632
Folder v. Bomiett 701
Feimster ▼. Tacker 221
Fenn y. Cnrtis 444
Ferguson v. Applenhite 613
Ferguson y. State 184
Fessler's Appeal 490
Fifield y. Marinette Co 711
Fillev y . RM^ster 65
Finch y. Cah^ert 182
Finley y. Lycoming etc. Ins. Co. 347
Finneran y. Leonard 696
Fischli y. Fisohli 638
Fish y. Dodge 189
Fisher y. Basaett 758
Fisher y. Cockerill 756
Fisher y. Fisher 657
Fisher y. Hunter 181
Fisher y. Knox 503
Fisk y. Newton 417
Fissell's Appeal 222
Fitts y. Hall 661,662
Fitu;ibbon v. Lake 95
Fitzhugh y. Wiman 733
Fleming y. Chicago etc. R. R. Co. 118
Fletcher y. Boston etc. R. R 359
Fletcher y. Peck. 383, 756
Fletcher t. State Capital Bank. . 211
Flinty. Flint 189
PAG J
Floresy. Thorn 161
Flower y. Gardner 183
Flynny.AUen 65G
Folsom V. City of New Orleans . . 267
Fonda y. Van Home 633
Ford, In the Matter of the Peti-
tion. 276^
Ford y. Wilson 156-
Forrester y. Boardmaa 418-
Forsyth y. Walker 417
Forty. Brown 360
Fortunichy.CityofNewOrleana. 269^
Foshay y. Ferguson 79^
Foeter y. Essex Bank 125
Foster y. Foster 211
Foeter V. Pierce 320-
Fowler y. Chatterton 627, 62S
Fowler v. Trebein 64
Fox y. McGregor. 4\0
Fox y. Sackett 622
Fox y. Town of Glastenbnry . . . . 422
Foye y. Leiffhton 204
Franco y. ¥?anco 613
Franklin Glasa Co. y. White 95
Frazier y. Steenrod 95, 730
Freeman y. Boynton ; 128, 194
Freeman's Nat. Bank y. Sayery, . 477
Freeman y. Smith offj, 668
Freer y. Cameron 274
Fremontetc. R. R. Co. ▼. Whalen.116,
120
French y. Backhouse 36&
French y. Marstin 281
French y. Price 364
Fretwell y. Laffoon 135
Frick's Appeal 490*
Friedly y. Scheeti 82
Fries y. Brugler 820^ 321, 322
Frinkv. Coe 359-
Froman v. Froman 667
Frost y. Halloway. . . . •. 314
Frost y. Pryor 133
Frost y. Spaulding 684^ 701
FuUer y. Knight 612
Fuller y. Steiglitz 811
Fulton y. Hood 696
Gahagan v. Boston and Lowell R.
R. Co 422, 616, 621, 622
Galatin v. PUot 368
Galena & C. R. R. Co. y. Loomis. 105
Ganson v. Madigan 684, 748-
Gantt V. Phillips 767
Gardiner y. People 274
Gardiner y. Tisdale 67
Gardner y. Brown 184
Gardner v. Dutch 367
Gardner v. Gardner 184
Garland y. Furber 282*
Gamier v. Renner 691
Garretsony. Clark 184
Gaskell y. Morris 82*
Gayit y. Chambers 6S-
Cases Cited.
29
Oftjle T. BUckbum 759
O. ft C etc. R. B. Ga V. ETaosich 184
G«erT. Hovy 661
Qenesee County SftTiiigs Bank v.
Michigan Buge Ck> 444
GeDMee etc. Say. Buk v. Ottawa
Cir. Jndco 182
Coarse v.^liooiaa 701
Gerhard T. Bates 487» 444
GemrdT. Gooka 281
Gerriah ▼. Shafttnck 282
Gibeonv. Roll 730
Gilwon ▼• Zimmerman 606
Gieey ▼. Cincinnati W. ft Z. B.
R. Co. 109
Gilev. Lobby 407
GillamT. Sioaz atyP. R. R Co. 121
Gilleland ▼. Rhoads 567,569
Gilliam ▼. Underwood 221
Gfllia ▼. McKinney 506
Gilman ▼. Eastern R. R 622
Gaman ▼. Oliver 182
Oilman ▼. Williama 569, 740
Gilmore ▼. Streeter 627
Gleadon V. Tinkler 366
Olendale Woollen Ca v. Froteo-
tion Ins. Co 547
Glidden ▼. Chase 707
Glidden v. Simpler 475
Glover v. Austin 865
Glover v. Honnewell 365
€k>bin V. Hndgens 170
Godsall V. Boldeio 526
Goetz V. Ambs 114
Golden V. Cocknl 748
Goodall V. BiarahaU 90^310
Goodin v. Cincinnati etc. Co. . . . 117
Goodlett V. Hansell 56
Goodrich v. Priti 770, 773
Goodrich v. Thompson 418
Goodspeed v. Fuller 471
Goodwin v. Davenport 291
Goodwin V. Goldsmith 444
Goold V. Chapin 417
Gordon v. Comes 270
Gordon V. Gordon 657
Gordon V. Railroad 207
Gottschalk v. C. R ft Q. R R . . 121
Gould V. Emerson 532
Couldiug V. Swett 746
Cofvcmor v. Williams 308
Governor v. Withers 765
Graham v. Conuersville etc. R R
Co 120
Grainger v. State 73
Grant v. Commonwealth 524
Grant v. Lexington F., L., ft M.
Ina. Co 248
Grant v. Morse 409
Graves v. Graves 657, 659
Graves v. NeviUe 660
Graves V. Shattuck 193
Gray v. Allen 367
FAe«
Gray v. Dougherty 181
Gray V. Dnrland 287
Gray v. First Div. of St. Fkulete.
R R Co 67
Gray v. James 133
Green V. Briggs 367
Green v. Greenback 660, 661
Green v. N. Y. Cent. R R Co. . 418
Green V. Sutton 552
Green V. Walker 386
Qreene V. Staraes 593
Greenville ft C. R R Co. v. Put-
low 115, 116
Greenwood v. Wakeford 511
Gregg V. Orabtree 181
Gregory v. Ford 705
Gregory, Stsgg, ft Co. v. Dodds. . 55
Gretonv. Smith 820, 321
Gridley v. Lafayette eto. R'y Co. 499
Grierly v. Codlmg 536
Griffey v. N. Y. Cent. Ins. Co. . 348
Griffin v.Bizby 652
Griffin v. Eaton 465
Griffin v. Underwood 462
Griffing People ez reL v. Mayor
etc. of Brooklyn 253
Grigmm v. Astor 90, 92
Grinnell v. Cook 407,410,411
Griswold v. Stouffhton 688
Grosvenor v. AUantio F. ft M
Lis. Co 340
Grout V. Van Schoonhoven. 239
Gramley v. Webb 141
Guest V. City of Brooklyn 271
Gunnison V. Gunnison 183
Gutterson v. Morse 321
Gwathm^ V. Bsgland 150
Hackett V. Potter 367
Haddock V. Gaudell 177
Hadley v. Clinton County Im-
porting Co 435
Haines v. St. Louis etc R'y Co. . 119
Halbert v. McCuUoch 587
Haldeman v. Bank of Middle-
town 477
Hale V. Mechanics' M. F. I. Co. . 482
Haley v. Colcord 281
Hallv. Davis 683
HaUv. State 321, 322
Hall V. Young 196
Halsev v. Mm)ormiok 63
Hamilton v. Butler 181
Hamilton V. West 156
Hammond v. Woodman 230
Ham v. Mayor etc. of New York. 271
Ham V. Wisconsin etc. R'y . .118, 1 19
Hancock v. Rand 412
Uanelv. Baare 182
Hann v. Van Voorhis 241
Hanna v. Dexter 183
Hannah v. McKellip. ...320, 321, 322
Hanoff V. State 320, 321, 322
30
Ca8X8 Cited.
TAOm
Hardin T. Bwdin 501
HardingT. Fozeroffc 364,^65
Harding v. WUaon 280
HardyT. Miller 182
Hardy ▼• Norton 820, 321
Hardy t. Union Mat. Fire Ins.
Co 481
Haring v^. New York 422
Harlem Gas Light Ga ▼. Mayor
etc. of New York 270
Harman ▼. Goodrich 733
Harper ▼. Butler 302, 305
HarpNBrT. New York CSty Ins. Ca 344
HairingtoQ v. St. Panl etc R. R.
Ca 67
Harris ▼.Clark 178
Harris ▼. Odnmbiana etc. Ins.
Co. 547
Harris ▼. Ohio Ins. Co. 480
Harris ▼. Fhilpot 221
Harris ▼. Tlppett 316
Harris ▼. Tyson 81
Harrison ▼. Iowa M. B. R. Co.114^ 118
Harrison ▼. Mayor of V ioksborg . 724
Harrison ▼. State 75
Harrison ▼. Yonng 117
HariL EstKte of 309
Ebrtley ▼. Harrison 97
HartUeb ▼. McLane 587
Hartshorn ▼. K a R. ft B. Ca . 119
Hasting8etc.RR.Co.T.Inga]]s. 121
Hatch ▼. Bartle 669
Hatch ▼. Cincinnati R R. Co. . . 116
Hathaway ▼. Roach 184
Hanpes ▼• Alderson 282
Haven ▼. Wendell 228
Havens v. Huntington 290
Hawkins v. Carbines 280
Hawkins ▼. Commonwealth 595
Hawkins ▼. Filkins. 775
Hawkins v. State 75
Hayden, People ex rdL ▼. Ci^ of
Roohester. 270
Hayes v. Gndyknnst 553
Ebynes ▼. Mosher 184
Haynes ▼. Thomas 65, 66
Hays ▼. Ward 592
Havwood ▼. Liveipool and Lon-
don Fire and life Ins. Co. . 246^ 248
Haaman ▼. Hoboken 274
Heaston v. Cincinnati etc. & R.
Co. 391
Heath ▼. Hubbard 367
Heathv.Knap 471
Heaton ▼• Hodges 701
Hecker ▼. Mayor of N. Y. 271
Heebner v. Bade Ins. Co 248
Hefferman ▼. £irt 141
Heil V. Ohmding 578
Heilman v. Westchester F« Lu.
Co 405
Helmetaff ▼. I^Mik. 55
Hemphill ▼. City o< Boston 277
raon
Hempstead v. Hempstead 141^
Henoerson ▼. Hay 232
Henderson v. Laoon 444
Henderson ft N. R. R Co. v.
Dickerson. 121
Henderson v. Womack 221
Hen. ft Nash. R R Co. v. Dick-
erson lis
Henning v. Burnet 281
Henry v. Dubuque ft Fac R R
Co 113, 118, 12(>
Henshaw V. Clark 366-
Herman v. Rinker 556-
Hermits of St. Augustine v.
County of Philadelphia. . .267, 269,
270
Hemdon ▼. Bartlett 690
Herrman ▼. Merchants' Ins. Co. . 34ft
Hersey v. Snpervisors of Mil Co.706^
709, 710
HesBT.Beates 181
HessT. State 680
Hewitt ▼. Swift 206
Hewlett ▼. Brown. 183
Hibbard v. N. Y. ft EL R R. . . . 206
Hibler ▼. McCburtney 764
Hickman ▼. Thomas 410
Hicks ▼. Coleman 66
Higham ▼. Rabett .'. 280
HiUv. Barney 194
Hillv.SpruiU 221
Hilliard V. Gould 206
Hillier ▼. Alleghany Ca M. Ins.
Co 246
Hinckley v. N. Y. Cent R. R
Co 416
Hinds V. Mooers 169
Hinds V.Page 820^ 321
Hitchman v. Whitn^ 287
Hizonv.LoweU 193
Hofi&nan ▼. JEtouk Fire Ins. Co. .. 346
Hoffman v. Anthony 96
Hoffman V. Miller 174
Hogan V. Robinson. 56
Hoitt V. Webb 211
Hdbrook ▼. Dow 822
Holbrook v. Wight 167, 170
Holciaft V. Wilkes 366
Holder v. Coates 649, 651
Holdemeas v. Shaokels 866
Holdship V. Doran 82
Holland v. Biayor etc. of &dti-
more 726
Holliman v. Carroll 687
Hollingsworth ▼. Des Monies ft
St £.R'yCo. 11% 121
Holmes v. Gharlestown Mnt. Lu.
Co 647
Holmes v. Mclnloe 706
Holmes ▼. Seely 281
Holt ▼. Bodey 658
Hdltv. Bverall 683^689
Holt V. Sargent 879
CA8X8 CmD.
81
Ids. Go. ▼. Ghrvthmi^j. ... 482
HoDMTT.TIiwmff 861
UoneT. Mutual Siilety Ini. Ck>.. 788
Hood*s]fateto. 518
Hooper t. Hadaooi Ritw Fire
liiB.Ca 847
Hooper T. Loaby 86G
Hooper t. WeUfl^ Fwns & Ck>. . .418»
768
Hooper ▼. WakiDaon 457
HopkinsT. Fofr^yth 865
HopkiDB T. Upduir 806^748
Hme ▼•People,
Horoer
75
65
781
Horaketii T. But 284
UanikjT.'F^woiM 513
Hoeegood ▼. BoIL 442
HobImt ▼. Skooks 574^639
Hoi Sprioge R. K Go. ▼.Tyler. 118
Hoaeton etc K R. Oo. ▼. Ksapp. 119
Hflirey ▼• CSiase dSiO
Howards. Albenvlne. Go 341
Hoiward ▼. (Sty Are Ina. Go 316
Hoiward ▼. Howard . . . ; 221
Howard Lu. Go. of New York ▼.
Scribiier 479
Howard ▼. Moore 94
Howard ▼. Reedy 156
Howe ▼. HntehinsoQ 181
Howenv.King 281
Howea ▼. Barber 183
Hoynee ▼. Moeher 182
Hoyt ▼. City of Hndaon 457
Hoyt ▼. Jones 184
Hoyt ▼. Thompaon 303
Hnbbard ▼. Conoord 193
Hubert. Hnber 50
567
185
Hiubee^. Hof^ 590
Hvtett ▼. Swift 412
Hemphrm ▼. MeOdl 70^ 95
Hunt ▼. /obnaoQ 54
Hunt ▼. Miaaonri Pte. R> Go. . . 120
Hunt ▼. Stilea 159
Hent^.Wvim 504
Hunter ▼. Anthomy 847
Hunter ▼. Lawrenoe 593
Hunter ▼. Marlboro 182
Hunter ▼. Sandy Hm 64
HuntainflBr ▼. Fhiladelphw Coal
Go 518
Hnrck ▼. Brakine 161
Hnrd ▼. City o< Eliabefh. 809
Huaon ▼. Young 282
Hnaaey ▼. BndlBy 185
Hnaaey^. Jewett
Hntdunaon ▼. Ghioago eto.
Go 675
HutehinaoB ▼. Wealeni Insur-
aaoeGow 482
Hyde^.
HneVa Appeal. . . .
Hu^ea, Bperte.
▼. Huidiee
rAea
LftaN.R>Go.T.P)^ 116
IkeUkeimer ▼. Ghapman 758
Illinois eto. R. ft. Co. ▼. Mo-
Clintock 121
Hsley ▼. Stobbs 771, 773
Indiana Cent R. R. Co. ▼. Hunter. 1 18
Indianapolis eto. II. R. Co. ▼.
Harter 497
Indianapolis C. BL R. Co. ▼. Hun-
ter 110
Indianapolis etc. R. R. Co. v.
Stout 274
IngaUsbee V. Wood 407
Ingersoll ▼. Jones 284
Ingram ▼. State GSO
Inhabitants ▼. Mill Pond etc. Co. 184
Inhabitants of West Newbury v.
Oiaae 110
Ins. Go. of N. A. ▼. Common-
wealth 518
Iron Mountain Bank ▼. Murdock. 322
Irwin ▼. Backus 593
Irwin ▼. Deyo 183
Isherwood ▼. Whitmore 191
I^eson ▼. Moore..... 536
Iveyv. Fhifer 764
Jack ▼. Dougherty 471
Jackson ▼. Ckimsuna 410
Jackson ▼. Humphiegr 817
Jackson ▼. McGonneu 694
Jackson ▼. Peaked 183
Jackson ▼. Staoey 280
Jaokson ▼. Woobey 768
Jacksonville etc R^ Go. ▼.Walsh 118
Jacob ▼. Continental L. L Ga 582; 533
Jacob ▼. Louisville 113
Jaggers ▼. T^inniwgM , 305
James ▼. Emmet MhL Go. 181
James ▼. Marcus 781
James and Mitchell ▼. Aduna. . . 667
Jefferson Ins. Co. ▼. GotheaL 347
Jefrey ▼. Hursh 181
Jefford ▼. Ringgold 632
Jellison ▼. GkxKlwin 639
Jenkins ▼. Motlow 669
Jenkins ▼. Sharpf 684
Jennie K Oilkey 367
Jennings, Ezpuie 63
Jennings ▼. Cnenango Mut. Ins.
Co, 547
Jennings v. Ins. Ca 353
Jennings v. Johnson 733
Jermain ▼. Lake Shore eto. R. R.
Co 184
Jewell ▼. Porter 51
Johnson ▼. Armdall 170
Johnson v. Atlantic ft St. L. R.R.
Co, 116, 121
Johnson v. Camlev 734
Johnson ▼. City of Boston. . .114, 115
Jdmson ▼. Freeport ft M R. R'y
Co. 117
32
Cases Cited.
PAOB
Johnson V. Hililun 348
Johnson ▼. HftTerfaill 192
Johnson ▼. Hndsaa & B Co. 421, 621
Johnson ▼. Kmnioatt 280
Johnson y. Fye 473» 660, 661
Johnson ▼. Northwwtam K. Ins.
Co 349
Johnson v. Sandhoff 100
Johnson y. Sherman 331
Johnson v. Stilling 55
Johnson v. Tonlmin 590
Johnson v. Vandoryort 54
Johnson v. Wiseman 148
Jones ▼. Chicago ft L R. B. Co. . . 116
Jones V. Clifton 55
Jones ▼. Dorr 291
Jones V. Fort 764
Jones ▼. Londerman 135
Jones, Matter of 908» 309
Jones V. M'Neil 321, 322
Jones V. New Orleans & 8, R. R.
Co. 118
Jones V. Perciyal 280, 281
Jones ▼. Pitcher 365
Jones V. Ryde 550
Jones V. Soalard 63
Jones T. Taylor 155
Jones V. Thomas 182
Jones V. Williams 597
Jordan v. Cummings 196
Jonge Tobias 366
Joyce V. Maine Ins. Co. 189
Jndson v. Western & R. Corp. . 667
Jndy V. Kelley 308
J. Y. Stewart k Wife v. L. J.
Magness 598
Kaehler ▼. Dobberpnhl 707
Kaler y. Beaman 281
Kane ▼. Gott 239
Kansas City ft K R. B Co. y.
Kregelo 116, 121
Kaoffman y. Griesemer 457
Kay V. Connor 222
Kaye y. Dntton 128
Kean y. Roe 221, 222
Keane y. Cannoyan 88, 452
Keeler y. Niagara F. Ins. Co 347
Keenan y. Commonwealth 524
Keener y. State 524
Keeney y. Home Ins. Co. of Col-
nmbns 348
Keiffhler y. Sayage Mfg. Co 95
Keith y. Easton 192
Keithsbnrg etc. B R. Co. y.
Henry 114^ 115, 119
Kellenbeck y. State 75
KeUey y. Merrill 364
Kellogg y. Chnrtshill 734
Kellogg y. Northampton 641
KeUogg y. Oshkosh 704, 709
KeUyTCase 522
Kellyy. Upton 344
Kempy. CbniWy 746
Kemper y. McClelland 706
Kendall y. Stokes 751
Kennedy y. Bamett 559, 578
Kennedy y. Qeddis 171
Kennedy y. N. Y. vta R. R. . . . 287
Kennedy y. St. lAwrenoe Mat
Ins. Cd 647
Kent y. Lasley 696
Kent y. Lawson 667
Kerchiyal y. King 135
Kerry. Day 489,^0
Kerr y. Kerr 657
Ketchnm y. Walsworth 693^ 695
Keystone, Steamboat^ y. Moies. . 101
Kidd y. McCormick 406
Kidder y. Danstable 193
Kidder y. Inhabituits of Qzfoid. 121
Kilbnxn y. Lowe 181
Kimball y. Donald 177, 178
Kinoaid ▼. Dormey 156
King y. Amndel 384^385
King y. Atkins 821, 322
King y. Baker 562
King y. Baldwin 692
King, Car j[, and Howe y. Nidiols 460
King y. Directors of the Bristol
Dock Co 535
King y. Iowa M. R. B. Co 119
King y. Jeffiries 384
King y. Minneapolis W. BV Co. 117
Kingy. N.Y. Cent etc B. B. Co. 320.
321
King y. Bobotham 884
Kirk y. Mnxphy 601
Kirkham y. Sharp 281
Kirkland y. Lowe 308
KiBten y. Hildebrand 406
Klapworth y. Dressier 471
Slander y. McGrath 359
Klein y. Caldwell 475
Kneetle y. Newcomb 510
Knight y. Abort 492, 493
Knight V. Barnes 711
Knight V. Wilcox 285
Knight y. Woore 280
Knowles v. Atlantic & St L. B
R. Co 126
Knowlton y. Beed 365
Knox V. Compbell 364
Kohner v. Ashenaaer 55
Kramer y. Cleyeland & P. B. B
Co 109
Kraose y. Commonwealth 544
Kncheman y. C. C. k D. B'y Co. 121
La Bean y. People 320, 327
Lacey y. Dayis 706, 707
Ladd y. Wigsin 308
LaJBhn y. Nafilee 669
Lacrosse y. Corran 183
Lam y. Cook 690
Lain v. Shepardson 692
Cases Cited.
33
rAOB
LskAT.Lake 657
Lsiko Shan etc RV Ca ▼. Chi-
cago etc. R. R. Co 114
Lake Share etc. R. R. Ca ▼. BiU-
ler 485
I^ike T. Shumate 181
Lambv. Dnient 364^365
Lambv. Stone 184
Lamme ▼. QroKg 435
Lunpmaii v. nammonil. 287
Lance ▼. C. M. & St. P. R'y Co. 116
Luidram ▼. KhowIm 531
Lane ▼. Brown 241
Lanffdon v. Doad 584
Linbee ▼. Lambert 159
Lanon ▼. Reynoldi 212
Laveiy ▼. Crooke 287
Lawrence ▼. Barker 322
Lawrence ▼. Boston 118
Lawrence ▼. Townaend 309
LawBOQT. HickB 639
LawBon ▼. Shotwell 668
Lawton V.Ward 281
Lay ▼. LawBon 767
Lazier ▼. Wesioott 129,465
Leake ▼. Gflchrist 311
LeaTitt ▼. Patnam 288, 291
Lebanon M. L Ca t. Kepler. . . . 482
Le deroq ▼. Gallipolis 67
Leev. Chadeey 320
Lee T.Lee 221
Lee V. Peckham 704
LefierttT. SaperviMwiof Cftlnniet
Co 706
Lehigh Valley R. R. Co. ▼. Laa-
ma 116
Lehmicke ▼. St Pteol eto. R R
Co 119
Leicester t. Biggs 198
Leiper ▼. Erden 589, 590
Leith,Ezrarte 220
Lenden ▼. Blackmere 221
Lentv.Howard 241
Leonard ▼. City of Bkwiklyn. ... . 270
Leonard ▼. Clinton 533, 534
Leonard V. Leonard 281
Leonard ▼. Reynolds 270^
Le Roy v. Jcdmaon 131
Lester y. Town of Pittsfdrd 616
Leveringv. Levering 222
Levy V. van Hagen 531
Lewis, In re 322
Lewis V. Adams 810
Lewis V. Back 773
Lewis V.Day 471
Lewis V. Jones 495
Lewis V. Kinney 368
Uwisv.Ross 180, 181
L. ftO. N. R'yCa V. Prae..... 115
Life and Fire Ins. Co. of N. T. v.
Adams 751
Ltuooln V. PeUuun 220^ 222
Ling V. Colmaa 513
Am. Die Vol. LXXXVUI— •
PAOB
Linsley v. Boshnell 180
Linton V.Hart 332
lipecomb v. Postell 150
Little Miaoii R R Co. v. Collet 109
LiUle Rock etc. R'y Co. v. Al-
len 115. 118
Little Rock etc. R*y v. McOehee .117
Liverpool Adelphi Loan Ass'n v.
Fairhnrst 660
Livingston v. Livingston 50
Livingston v. Mayor of N. Y. . . . 109
Livingston ▼. Sickles 344, 340
Loan Ass'n v. Stonemets 498
Locke V. Coleman 687
Locke V. Lewis 477
Locke V. Mabbett 241
Lockhart V. Lockhart 221
Lockwood ▼. Biglow 83
Logan V. Tliomas 183
Loffansport etc. R'y Co. v. Ba-
oianaa 118
Iiohman v. People.. 317, 320^ 821, 322
Lombard v. Antioch Cdlege .... 71 1
Longmeid v. HoUiday 443
Longmore V. Broom 220
Lonsdale v. Lafayette Bank. .... 169
Loomis T. Brash 54
Lordv. Qiow 435
Louden v. Blythe 81
Louisiana v. Mayor eto. of N. O. . 267
Low v. Barrows 31 1
Low V. Carter 221
Lowry V.Harris 81
Lowry v. Keyes 626, 627
Loyd V. Freshfield 131
Lucas v.Com'rs of Tippecanoe Co. 270
Lucas v.Lncas 55
Lucas V. New Bedford etc. R R. 621
Luckenback, The E. 182
Lttsar V. Hannan 220
Luke V. City of Brooklyn 267
Lund V. Tyngsborough 188, 644
Lyman V. Arnold 281
Lyman v. Hale 660
Lynch v. AUen 66
Lynd v. Picket 95
Lyon V.Hunt 59
Lyon V. I^on 658
Lyons v. Miller 556
Macullar v. McKinley 444
Macy V. De Wolf 365
Madden v. Koester 322
Maddox V. Sullivan 95
Maghee v. Camden ft A. R R
S> 418
Maffruder v. Bowie. 365
Maher v. Ashmead 557, 659
Mahler v. People 75, 524
Maine v. People 321, 822, 360
Majors v. Bverton 56
Makin v. Sav. Inst 195
Mallory V. Leach 129
84
Cases Cited.
PAOB
lift&by v. Soott 633
Manchester a & L. R'y Go. t.
Willis 492,493
Bianley v. Ins. Co. of N. A. 349
Manning ▼. Evans 241
Mant ▼. Mainwaring 654
Manvell v. Thomson 284, 285
Marbory ▼. Madison 751
March v. Allen 705
Marcy ▼. Baines 230
Mark V. City of BolSUo 184
Marks v. Ejng 820, 321
MarshT. Marsh 601
Marsh ▼. Supervisors of C. Co. . 707,
711
Marston V. Carter 196
Marshall v. Haney 320, 084
Marshall ▼. Means 748
BCarshall Fish Co. V. Hadley Falls
Co 182
Martin y. Davis 241
Martin V. Oxeat FaUs Co 203
Martin v.Jett 457
Martin v. Kanoose 181
Martin V. Maner 178
Martin v. Martin 54
Martin V. Payne 283
Martin V. Riddle 467
Marvel V. Manonvrier 587
Marvin V. SchiUing 94
Marvin V. Stone 345
Marxv.Bell 322
Mason v. Thompson 407, 410
Massing V. Ames 181
Masters v. PoUie. ..648, 649, 660, 661
Matteson v. N. Y. Cent. R. R. . . 360
Biattison v. Tanfield 220, 222
Manry v. Coleman 291
Manx Ferry Qravel Road Co. v.
Branegan 499
Maverick v. Eighth Ave. R. R.
Co 427
Maxwell v. McAtee 281, 282
Mayhew v. Herrick 367
Mayor etc v. Exchange Fire Ins.
Mayor etc. v. Reyndlos 612
C6 349
Mayor etc. of Baltimore v. Por-
ter 452
Mayor etc. of Baltimore v. Ponlt-
ney 267, 270
Mayor etc. of Baltimore v. Rey-
nolds 138
Mayor eto. of Baltimore v. Stete. 724
Mayor ete. of Hagerstown v.
Dechert 268
Ferry Co 270
Mayor of N. Y. v. Bailey 262
Mayor ete. of N. Y. v. K, Y. etc
McArthnr v. Carrie 767
McBride v. Farmers' Bank 307
McCahan V. Hirst 604
MoCandless's Ertate 516
PACK
McCaU V. Forsyth 604
McCsll V. Lenox 502
McCann V. Nashville R. R 637
McCarthy's Appeal. 5G9
McCarthy v. Qnee. 83
McCartney v. Stete 680
McCaw V. Bnrk 65
McClintock v. Roeers 699
McClnre k Co. v. tSox, Brainard,
k Co 763,764
McConnell V. Brown 687
McConnell v. Rathbon 280
McCord T. Noyes 631, 632
McCormick v. Wheeler 782
McCoy V. Galloway 701
McCoy V. State 75
McCracken V. West 442
McCraney v. McCraney 601
McCrombie v. Spader 297
McCollongh V. State o< Mary-
land 616
McCollongh V. Wall 67
McCoUy V. Clarke 427,622
McCnne v. Norwich CSty Oas
Co 136
MoCntcheon's Appeal 682; 634
McDaniel V. Edwards 286
McDanielv. Robmson. 408,412
McDonald v. Badoer 696
McDonald V. Beadi 235
McDonald v. Edgerton 407
McDonald v. Evans 182
McDowell V. Jones 761
McEvoy V. Loyd 701
McEwan v. Jeffersonville M. ft L
R.R.CO 418
McEwan v. Montgonksiy Cc Mat.
Ins. Co 481
McFadden V. SalladA 606
McFarland v. Stone 758
McGachen v. Dew 613
McQahen v. Carr ; 69
McGrew v. Foster 662
McHngh V. Chicago ete. R. Rb
Co 183
Mclndoe v. Haaeltoii 606
Mclntire v. Stete 109
McKarracher v. MoKarracher. . . 668
McKee v. Judd 748
McKee v. Wilcox 212
McKenzie v. Farrell 676
McKeon v. atisens' R'y Co 144
McKinley v. Weber 688
McKyrinfl v. Boll 404
McLean Connty Bank v. FUgg. . 688
McLellan V. Cox 366
McManns v. Criokett 206
McMaster v. McMaster. 221
McMaster v. President etc Ins.
Co. of N. A 349
McMasters v. Commonwealth. . . 109
McMasters v. Westchester 838
McMillen v. Cronin 281
CABBa ClTXD.
86
Mcir«a T. TbBlii Nat. Bulk 297
McQaaon t. Fletcher 590
MeReynoldi ▼. Barlmgtan etc
R'yCo 114
MeReynoUs ▼. Otktee 182
MfiOlWTiah ▼. OuToU 281
MeVeanvT. Mi^or 416
MeWilluuns t. Hopkma 183, 184
MeerfMwn ▼. Fitchbunr R. R. Co. 108,
109
Me^dv.Mallory 183
Meade ▼. Weaver 487
Headier ▼. TanZandt 181, 183
Mei^en v. Strong 58
MelTiUe T. Brown 234
McBkfloa ▼. MenkesB 461
MeroerT. Jonee 461
Maroeron ▼. DowMm. 328
Marhiap ▼• Gleeeon 322
Mamam ▼> Onnningham 662
MairiU T. BarOett 364,366
Manii ▼. Claghom 408
Maintt ▼. Walah 366
MethTin T. Hethyin 657
Metropolitan Boerd of Health v.
HeiSber 270
Miehiflaa ate. R R Ca y. Day.. 191
Middlebrook ▼. Meitihants' Bank.301.
308,311
Middleton ▼. FHtchard 63,67
Milboni ▼. Belloni 430
Millnim ▼. Gayther 364, 367, 368
Mflee ▼. Bradford 752
Milledge ▼. Colemaii 707
Miller? Appeal 222
MiBer^aSrtate 517
Miller ▼. f^drye 649
Miller ▼. Jones 759
MiD«ry.Mmer 241
Millerv.Reed 219
Miller ▼. Thompson 183
MiDiiiaii ▼. Taeker 314
MiDa V, Daryea 465
MilU T. Gleason 709,725
MiDa ▼. Johnson 706^ 709
MiDa v. Stark 493,495
Mfltimore v. Rock Co 704, 709
Milton V. Haden 767
Milton V. Hadson River Steam-
boat Go 427
Milton ▼. Rowland 187
Milwaukee etc R R. Co. v. Hun-
ter .427,621,022
Minnesota Valley R R Co. v.
Doraa 114
Miasoori Bridge Co. V. Ring 117
Miasonri P. Co. ▼. Hays 114, 1 15
MisBoari R etc R R Ca Owen.118,
121
Mitdiell T. Chambers 366
MitefaeU V. Harmony 778
MttchaU ▼. Van Buien. 395
MosJe V. Mayor etc of Baltimore 119
Moffiktt ▼. Shapard 297
Molynanx ▼. Seymour 306^ 810
Monangahala Ina. Go. v. Cbeatar 779
Monday v. State 435
Monroe ▼. State 72
Montell ▼. The Ratan 366
Montgomery v. Mniphy 688
Montmorency G. R Cc y. Stock-
ton. 114
Moodalay v. East India Co. 261
Moody v. Buck 367
Moody y. Saperyisonof Niagara. 267,
268,269
Mooney v. Hudson Biver R R
Co 350
Moorehead y. Gilmore 477
Moore y. Pap 55
Moore y. Smith 501
Morey y. Forsyth 513
Morgaa'a Appeal 120
Morgan y. Reading. 63
Morgan y. Skiddy 444
Morm V. Minneapdia k M. R'y
Co 118
Morrill y. Aden 661
Morrison y. Tennessee etc Fire
In8.Cc 347
Morse y. BnffiJo etc Ins. Co 349
Morse y. State 187
Morse and Wife y. Richmond. . . 645
Morse y. Boston ft M. R R Co. 104
Morton y. Jackson 701
Moses y. Boston etc. R R Co. . .191,
206
Moses y. Mead. 430
Mothland y. Thombiug. 517
Mowatt y. Carow 222
Mowers y. Fathers 409, 412
Mowrey y. Central C^ty R*y .... 274
Mt. Washington Road Co., Peti-
tion of 104, 108, 109, 114, 120
Mndge y. GUbert 320
Mailer v. Hilton 501
Muller V. St. Louis Hospital
Ass'n 321
Mnlyehall y. MiUward. 284
Mumford y. NicoU 367
Mnnger y. Tonawanda R R Co. 492
Munn y. Taulman 95
Monroe y. Gkurdener 442
Mnnson y. Harroun 675, 740
March y. Concord R R 203
Murdock y. Chenango Mut. Ins.
Co 339, 340,341
Murphy v. Jones. 184
Murray y. Blatchford 308
Murray y. Wells 533
Murrin,Inre 5B3
Muscott y. Runge 183
Musselman y. McElhenny 291
Musser y. Gk)od 181
Mustard y. Wohlf ord. 633
Myers y. Dunn
86
Cases Cited.
Myera t, Toacan.
FAOK
. 228
Nashville etc. R. B. ▼. Elliott. . . 633
Nat. Fire Ins. Co. of Baltimore
y. Crane 482
Nation v. People 821,322
Naugatnck Cutlery Oo. t. Bab-
cock 444
Neal V. Gillett 422
Needham'B Case 750, 760
Needham v. Branaon 695, 696
Neff y. P^dock 701
Neff y. Pennoyer 184
Nellia y. Latluop 332
Nelson y. Boynton 761
Nenfville ▼. Thomaoa 50
Neyins y. Bay State Co. 201
Newberry y. Ckvlaad 444
Newbury y. Mayor eta of K. Y. 268
New GlonoeBier ▼. Brid^^iam. . . . 821
NewhallT. Clark 178
New Hiayen Coonty Bank y.
Mitchell
New Jersey Steam Nay. Oo. y.
Merdumts' Bank 666
Newman y. Foster 66, 701
Newman y. ^ymeson 746
New Orleans & Pao. BV Co. y.
MnrxeU 121
N. Y. eto. B'y Co. y. duystie. . 118
N. Y. eto. B. B., People ez reL
V. EUiyemeyer 271
N. Y. eto. B. R. Co. y. Sehvyler 444
Niohols y. Denn^ 221
Nichdsy.Lee 503
Niohols y. Smith 310
Niohols y. Somerset ft K. B. B.
Co. 105
Nicholson y. HUliard 768
NiooU y. Mnmf ord 864^865
Nixon y. Porter 768
Noble y. Epperly 733
Ndes y. State 75
NorerosB y. BodBsn 199
Norcatt y. Dodd. 528
Norris's Appeal 515
Norris y. Baker 649
Norris y. Litchfield. 644
Norris y. Mass. M. L. I. Co 533
Norris y. Monlton 211
Northampton Ins. Co. y. Stewart 184
North finmswiok B'y Oo. y.
Conybeare 444
NorthetnB.B. Ca y. Page 201
Northey y. Strange 222
Northfield Bank y. Brown 619
North Penn. Coal Oo.'s Appeal. . 134
Nurse y. Justus 181
O'Brien y. Gilchrist 667
Ocean Belle 867
Odiome y. Winkl^ 822
Odiin v. Gove 206
ra«n
ODono^ue y. Corby 461
Ogbum y. Connor 467
Oglesby y. Steamer 866
Ohio k Miss. B. B. Co. y. Mc-
Clelland 105
Ohio & Miss. B. B. Ca y. Mnbl-
ing 88^336
Ohio & Miss. B. B. Ca y.
Wheeler 579
Ohio eta B. B. Ca y. Dayis 740
Ohio eta B. B. Ca y. Tindall. . . 578
Ohl y. Eagle Lu. Cb 865
Old Colony & F. & B. B. Ca y.
Plymouth 104
Oley.Olsen 866
OUphant y. Bellas 601
Oliyer^sCase 72t
OliyerLeeft Oa's Baiiky. Wal-
bridge 868; 871
Ohieyy. Watts 657,668
Olialley y. Doiaa 674^646
Oregon B.& Cay. Bariow..... 116
Orleans ly. Phc»biis 867, 868
Orry. City of Brooklyn 267
Ortt'sA^^.. S22
Osboni y. Ordinary eto 598
Oswald y.Legh 690
Otis y. Gerdnar 181
Otisy.SiU 746
Otoe Coontiy y. Brown 182
Ottawa Gas Li|^ eta Ca y. Gra-
ham 144
Oyerbyy. MoQee 784
Owenay. Dayis 864
Pace y. Place.
Pace y. Pieroo
Pacific Bailroad y. Goyinior.886^
Pago y. Hardin
Page y. Parker
Fame y. City o< Boston
Pftlmer y. Cify o< Concoid. .268;
Palmer Ca y . FeExiB 108,
Palmer y. Hunter
Palmer y. Mulligan
Palmer y. Portsmouth
Palmer y . Western Ins. Ca
Pardee y. landlqr
Pardue y. Giyens
Park y. Baker
Pttfky. O'Brien
Parker y. Martin
Parker y. Mise 14^
Parker y. Stuokert
Parks y. Bishop 880;
Parksy. City of Boston
Parret y. Shaubhnt 96, 97,
Parrott y. Barney
148
725
751
119
270
109
133
198
345
221
148
183
189
54
281
118
100
427
Parry, Ez parte.
Parsons y.HiU.
Parsons y. L;
Parsons v.
ijyman.
Trask.
.806,
682
811
Caus Citsd.
37
FA0B
Partridge ▼. Bere 828
BHlsy ▼. Freeman 440
Batch ▼. WheaUand 866
Fatten T. Gnemey 868
Fatten v. Northern Gent. BV Co. 1 16,
120
Fattenonv. Chalmen 865, 366
Pktteraon T. Colebrook 188
Patterson t. McKinnery 55
Pktterson v. Officers etc 182
Fattenon ▼. Ftigan 810
Ftetterson ▼. Patterson 221
Patde ▼. Wilson 591
Fsnl ▼. Carver 67
Payne ▼. CoUier 518
Peabody T. CaiToll 808
Peamll V. Chapin 630
Peck ▼. Oorney 444
Peck T. Harriott 137
Peck T. Richardson 396
Peck V. Smith 64
Peekv.Gniney 442
Peelv.Kem 320
PeetT.Warth 182
Peigne v, Svtdife 661
PejejMcot Proprietors v. Kichok. 155
Pembroke v. AUenstown 228
Pence v. Makepeace 533
Pennsylya&ia ▼. Bell 72
Peon. Canal Co. v. Bentl^ 485
Penn. etc Co. v. Bunnell. ...116^ 119
Pennsylvania Hall, In re 267
Pennsylvania v. Honeyman 72
Pemi. R. R. Ca V. Beale 485
Penn. R. R Co. v. Heister 109
Penn. R R Co. v. Reiffer. . .182; 183
Penn. R. R Co. v. Ogier 484
Pennsylvania V. Robison 558
Femi. R. R Ca v. Sehwanen-
berger 667
Penn. Salt Mfg. Co. v. Keel 55
Penrod v. Morrison 629
Pfiorose V. Cnrren 474
PensffnnfBW v. Pensmwean 128
People V. Abbot 317
People V. Albany eta R.R..... 537
People V. Anditor-Qen. 348
People V. Bates 725
People V. Bell 822
People V. Blakely 815^ 316
People V. Bodine 317
People V. Boring 462
People V. Brown 823
People V. Cady. 214
People V. Call 544
People V. Comm'rs 886
Pcoplev. Cook 725
People V. Crapo 823
People V. Cunmnglum 193
People V. Eastwood 187
People V. Eddy 886
People V. Fitdb 214^215
People V. Hartley 730
TAmu
People T. Heniek 820
People V. Ingersoll 270
People V. Jackson 198
People V. Lagrille 679
People V. Lohman 318
People V. Mather 817
People V. Mayor of Broo^yn.llS; 121
People V. McCamber 70
People V. McOnngill 822
People V. McKeller 821. 322
People V. Oyer and Term. Ca cl
W. Y 820,821
People V. Pinckney 270
People ▼. Pnrdy 884» 885
People V. Rector 819
People V. Stame 386
People V. Steams 212
People V. Stenben a P. 181
People V. Stevens 386
People V. Snllivan 72, 73
People V. Snpervisors of CSie-
nango 249, 386
People V. Worthington 518
Peoria eta R'y Ca v. Peoria ft F.
R'yCa : 121
Peoria lus. Ca V. Hall 366
Percival v. Blake 191
Perkins v. Eastern and R & M.
R. R Co 493
Perkms v. Hawkins 691
Perkins v. N. T. Cent. R R Ca 886
Perkins v. Perkins 657
Perrin v. Prot Ins. Ca 243
Perry's Appeal 161
Perry v. TAnuing 359
Persons v. Jones 556
Petersburg v. Mappin 452
Petersen v. Chemi<»l Bank 309
Peteach v. Hambaeh 684
Petigrn v. Fergoson 758, 759
Petition of Mt. iVaahington Road
Co. 104, lOC 109,114, 120
Pettigrew v. Bamnm 409, 412
Petty V. Gayle 764
Petty V. Royal Exchange Ina. Co. 345
Pfandler Barm EztrMting etc.
Ca V. Pfandler 182, 183
Pfiegar v. Hastings & D. RV Co. 115
Philadelphia & R. R R. Co. v.
Getz 118
Philleo v. Hiles 711
Phillips V. Brigham 224
Phillips V. Foxcroft 365
Phillipsv. Harriss 734
FhiUipB V. Porinffton 365
Pbillipson v. MuUanphy 147
Phcemx Ins. Co. v. Hamilton 348
Pickerell V. Piak 364
Pickett, Ex parte 751
Pierce v. Schutt 707
Pierce v. Worcester R R 115
Pierson v. Armstrong 549
Pike V.Monroe 684
88
Ca8B8 Cited.
Fikey.llash 183
PilUbnry ▼. Locke 228, 229, 290
Piackney y. Hennegan 70
Piokard ▼. Pinkard 501
Pinkerton v. Woodward 409
Pinnock v. Gloo£^ 297
Pipe V. Steele 652, 553
Piper V. Manny 407
Pitts y. Fogelsong 452
Pittsburg etc. R. R. Co. y. Rose. 116,
119
Pittsbarg etc. R'y Co. y. Bentley 118
Pittsburg etc RV Co. y. Stuart. 497
Pittsburg & C. R. R. Co. y. Mc-
Clurg 485
Pittsburgh etc. R. R. y. Jones. . . 538
Pittsburgh etc. R. R. Co. y. Nn-
sum 207
Plume y. Stewart 566
Plumer y. Superyisora of M. Co. 711
Pomroy y. Parmlee 578
Poorman y. Eilgore 566
Porter v. Woods 75
Post y. Avery 550
Potter y. LutW 674
Pottery. Ontwio ft L.li.Ina. Co. 344
Potts y. Cooley. 692
Poucher y. N. Y. Cent R. R. Ca b37
Powe y. McLeod ft Co 54
Powell y. Bradlee ft Co 771, 773
Powell y. McAshan 147
Powell y. Powell 667
Powell y. Smith 562
Powers y. Skinner 604
Prather y. City of Lexington. . . 267
Pratt y. Donoyan , 733
Presbrey y. Old Colony ft K. R'y
Co 114
Presoott y. Carr 221
Prescotty. Presoott...! 667, 658
Presley y. Bayis 222
Preston y. Compton 462
Preston y. State 72
Prestwich y. Marshall 198
Pribble y. Kent 544
Price y. Cutts 549
Price y. Fumam 631
Price y. Hewett 660
Price V. Lord Torrington 229
Price V. White 763» 764
Prince's Case 384
Proprietors of Locks and Canals
y. Nashua ft L. R. Corp 108
Prosser y. Edmonds 743
Providence Bank y. Billings 105
Prize Cases 780
Pryor v. Wood 590
Pulcifer y. Page 652
l^ilUs y. Robison 531
Pulse V. State 603
Purdyy. People 384
Purvis y. Coleman 407
Putnam v. Douglas Co 116, 121
Queen y. Fletcher 543
Queen y. HaaseU 542
Queen y. Loose 642
Queen y.PraU 494
Queen y. Robson 543
Quimby y. VanderbUt '. . . 201
Quimby y. Vt C. R. R. Co 104
Quinlan v. Sixth Ave. R. R. Ca 427
Raborg y. Hammond 768
Raby y. Eidehalgh 612
Radcliff y. Mayor etc of Brook-
lyn 114
Radford v. Rice 322
Railroad Co. y. Dickeraon 757
Railroad Co. v. Lockwood. 337
Railroad Co. y. Schurmeier 67
Railroad Co. y. Skinner.491, 492, 496
Railroad y. Vanatta 201
Raimond y. Crown ft £. Mills. . . 132
Raleiffh etc R R Co. v. Wicker. 114
Ramuey y. Leland 409
Ramsdue v. Foote 457
Ramsey's Appeal 551
Ramsey y. McCauley 704
RandaU v. Falkner 181
Ransbaugh y. Hayes 592
Rathbone y. Sanders 173
Rawlings v. Bean 442
Bdwlinson y. Stone 305
Rawls y. Deshler 297
Rawson y. Holland 418
Ray y. McMurtry 291
Raymond y. Pauii 688
Raymond y. White 147
Ready.BCarsh 171
Realy. People 320,321
Reapers' Bank y. Williard 629
Rector y. Hartt 688
Redmond y. Bickerson 705
Reed y. Spaulding 227
Reed y. State 679
Reese y. Medlock '&12
Reeside, Schooner. 763
Reeves v. Delaware and Lacka-
wauna R. R. Co. 484
Regina y. Garrett 542
Regina v. Hassell 543, 544
Regina v. Paty 382
Regina y. Smith 73
Relfe y. Relf e 566
Rensselaer ft S. R R Cc, In le. 104
Renwick y. D. ft K. W. R. Co. . 118
Republican Valley R. R. Co. v.
Linn 114, 115
Respublica y. Devore 558
Revans v. Lewis 365
Rexford y. Marquis 281
Rexy. Hoare..,. 542
Rex y. Lewis 314
Rex y. Millard 679
Rex y. Walsh 640
Reynolds y. Mayor etc 182
Casks Citbd.
FAOB
Reynolds ▼. WanMT 183
Rhodes ▼. Tamer 707
Rice ▼. Danville k N. Tampike
Ck> 113» 121
Kioe ▼. Montpelier 641
Rice ▼. TsTemier 138
Rich V. Rich 81
Richsrds ▼. Elwell 665
Richards ▼. Lcmdoii, K, ft 8.
R. R. Co 671
lUchards ▼. McMillsa 704
Richardson t. Ghickering 700
Richardson t. Pond 279
Richardson v. Reed 734
Richardson t. Bichardaon. 601
Richardson ▼. SUrestsr 444
Richardson v. Wilion 668
Richardion v. Wilton 60
Richmond etc Road Co. ▼.
Rogers 114
Richmond v. Sniith 407
Ricker ▼. Charter Oak L. L Co«. 632
Ricketts ▼. East and West India
D. ft J. R'yCo 492
Riderv.Gray 490
Ridge ▼. Stoerer 495
Riley v. Griflfai 701
Risonv. Wilkeraon 631,634
Rives ▼. Dudley 67
Roanes ▼. Archer 694
Rohb T. MavBTille etc Co. . .117. 118
RobbinsT. Milwsnkeeft H. R R.
Co 108^115
Robbins T. Psckard 462
Roberts ▼. State 75
Robinaon ▼. Campbell 146
Robinaon v. Caahing 368
RobiuBon v. Evans 613
Robinson v. Fitchbmg ft W.
R'R. 188
Robinaon v. Garth 83
Robinaon v. N. Y. Cent. R R
Co 359
Robinaon v. Rice. 128
Robinson v. State 644
Robiaon V. Banks 183
Rockford etc R R Co. v. Mo-
Kinley 114
Rodemacher v. Milwaakee eto.
RRCo 116
Rogers v. Brickhooae 221
Rogers v. Chamberlain 183
Rogers v. Grider 694
Refers v. Kneeland 137
Rogers Locomotive etc Works v.
ErieR'y 638
Rogers v. Rogers 184
Rogers v. Saunders 490
Rogers v. Swanton 622
Rohrv. Kindt 81
Rolfe V. Gregory 613
Roll V. Nor£em Cent. RV 274
Rome Exchange Bank v. Bamas. 241
^ . ^ 'ASS
Romig V. Romig 461
Roosevelt v. Draper 259
Roosevelt v. Hoptdns 349
Roosevelt V. Rooaevelt 241
Root V. Bonnema 677
Roper V. Roper ^1, 222
Rose V. Bevan 235
Rosev.Milea 636
Rosenberger v. Uallowell 669
Rosa V. l^tsworth 235
Roumsge V. Ins. Co 183
Rowellv. City of Lowell 644
Roxborongh v. Meaaick 461
Royal Ins. Co. v. Boeder 482
Royce v. Maloney 639
Rnbey v. Hontaman. 69
Rucher v. Conyngham 352
Rnddick V. li^d 462
Rnflher V. McConnel 649
Raah v. Lewis 671
Rnaaell V. Gibbs 82
Rnaaell V. Haddock 174
Ruaaell v. Minnei^lis etc B,*j
Co 120
Rnsaell v. St. Panl etc R'y Co. .116^
117
Rnaaell V. Wiffgin 169
Ryan v. PeopIT 821, 323
Ryberg v. SneU 168
Ryder v. Hathaway 677
Ryner v. Stacy 600
Sadler v. Kennedy 691
Sallee v. Arnold 199
*6almondv. Price ; 808
Salmon v. Smith 661
Salabory v. Paraons 241
Sampson's Case 621
Sampson v. Gazxam 764
Sanderson v. Haverstick 495
Sanford v. Eighth Ave. R R Co. .206^
207
Sanford v. MoCreedy 310
S. F., A., ft S. R R Cd V. Cald-
well 118
Sargent v. Hnbbard 280
Sarffent v. Solberg 748
Sarles v. Mayor etc. of Kew Tork.267,
270
Sartain v. Hamilton 156
Sater v. Burlington 118
Saunders V. Frost 182
Saunders, People ex reL v. Super-
visors of Ene Co. 270
Savage V. Bangor 644
Savignac v. R<x>me 206
Sawyer v. Aultman eto. Mfg. Co. 185
Sawyer v. Dodge Co. Mut. Ins.
Co 349
Sawyer v. Freeman 366
Scales V. Alvis 69
Schader v. Decker 81
Sohenck v. EUingwood
40
Cases Citkd
PAOB
Schermerhom ▼. Loines 368
Schermerhom ▼. Sdiermerhom. . 655
Schiellein ▼. Snpervisors of King's
Co 268
Schoeppe v. Oommonwoalth 524
Schopman v. Boston 202
Schott V. Benson 183
Schuylkill Nay. Co. ▼. Thobiim..ll8,
602
Scrogeam ▼. Stewardson 631
Scragnam v. Carter 733
Scott V. Commonwealth. ....... 75
Scott V. Dixon 444
Soottv. Hix 199
Scott ▼. Lloyd 655
Scott ▼. Rivers 768
Scott V. Watson 663
Scudder v. Gori 181
Seabrook v. Rose 365
Seabniy ▼. Stewart 666
Seahonse ▼. Christian 280
Seaman v. Luce 733
Seamans v. Carter 629
Searle ▼. Lackawanna & B. R. R.
Co 120
Seavy v. Dearborn 322
Ssbley v. Nichols 182
Secor V. The Highlander 184
Sedgwick V. Place 55
Seixas v. Woods 430
Selby V. Nettlef ord 281
Sclma etc. R. R. Co. v. Keith. . . 118
Semron v. Semron 657
Senhonse v. Christian 279
Sergeant v. Steinbenrer 696
Sessions ▼. Town of rl'ewport.. . . 617
Settle V. Alison 768
Sewall V. Lee 756
Seward v. City of RLung Son. . . 618
Sexton ▼. Wheaton 60,63
Seybolt v. N. Y. etc. R. R. Co. . 337
Shackley v. Eastern R. R. . . .537, 638
Shaler ▼. Van Wormer 133
Shane v. Kansas City etc. R. R.
Co 467
Sharp ▼. Bailey 212
Sharp y. Jones 612
Sharpless ▼. Mayor etc. of Phila-
delphia 724, 726
Shattack v. Stoneham R. R. 119
Shawv. Berry 407, 408
Shaw ▼. Levy 773
Shed V. R.R.CO 181, 182
Sheehan v. Dalrymple 365
Sheff V. City of Huntington 622
Sheldon v. Atlantic etc. Lis. Co. 224
Shenango & A. R. R. Co. v. Bra-
ham 117, 118
Shepard v. Parker 321, 322
Shepard V. Shepard ^ 50
Shepardson v. Colerain 641
Sherman V. Hoglaad 65
Bherman ▼. Page 308
PAOB
Sherwood ▼. St Paul k C. RV
Co 116, 119
Short's Estate^ In re 617
Shorter ▼. People 73, 74
Shorter v. Sheppard 768
Shotwell ▼. Shotwell 658
Shroder v. Brenneman 281
Shnfeldt v. Spanlding 701
Shnlts v. Whitney 182
Sibley v. Aldrich 407,408
Sidener ▼. Essex 118
Sidener ▼. Alflxandar 462
Sidensparker ▼. Sidensparker.76, 696
Simmons ▼. Brown 688
Simmons ▼. McElwain 60
Simmons v. St. PmlI k C. B*y
Co. 119
Simpson t. Ammon 601
Simpson v. Penn. Lis. Co. 481
Single V. Schneider 735
SkiQman V. SkiUman 199
Slaaghter ▼. Barnes 675
Sloan V. Edwards 322
Smedley ▼. Felt 633
Smith, Anna H. 867
Smith V. Ashnrst 221
Smith ▼. Brady 897.404
Smith ▼. Broyles 182
Smith V. Chicago etc. R^ Co 311
Smith ▼. Oevebmd 710
Smithv. DeSilva 86&
Smith V. Emerson 667, 668
Smith and Fleek's Appeal 490
Smith y. Fisher 182
Smithv. Hoyt 721
Smith V. Mariner 848
Smith V. Mobne Kav. Lis. Co. . . 764
Smith V. Pettingill 705
Smith V. Railroad 203
Smith V. Randall ^688
Smithv.Read 409
Smith V. Redns 704
Smith V. New York etc R. R. Co. 335
Smith V. Sanford 239
Smith V. Seward 604
Smith V. Slooomb 701
Smithv. Smith 666^667
Smith V. St. Paul City R*y Co. . . 88
Smith ▼. Stratfield 220
Smith V. Thompson 699
Smith V. Tifiany 309, 311
Smitii V.Todd 692
Smith V. Wendell 641
Smithv. WUcox 604
Smithpeter v. Ison 699
Smithwick v. Ward 144, 678
Snow V. Boston k Me. R. R. 119
Snow V. HonsatonioR. R. Co..486, 622
Snyder v. Western Union R. R.
Co 114, 119
Sodnsky V. MoGree 322
Solomon v. City of Kingstoa.267, 268,
279
Cases Citkd.
41
PAOI
flouwffillo ete. R. R. Go. ▼.
Ikmghtj 114, lis, 117, US
SoothardT. Bexford 817
Soath Metropolitan Oemeteiy Co.
▼.Eden 279
SoathwOTih ▼. Smith 367» 8S8
Sowder ▼. Sowder S67
Spsngler ▼. Pngh 129
Spuliawk ▼. BoeU 690
fiperhawk ▼. Union PMMOger
R'y 038
SpMLlding ▼. Tacker 185
Spear ▼. RJchaTdaan 187
Speck ▼. Jarvis ^ . 711
Speer ▼. BUirsrOle 714
Spenceley ▼. De WiUott 314, 316
Spenoer v. Milwaukee et& R. R. 622
Spenoerv. UticaandSohneotady. 422
Spiney ▼. Spiney 222
Spoor ▼. Holland 734
Spring ▼. Bonrland 734, 770, 773
SpringBeld k. M. R'y ▼. Rhea. . .113,
114, 116, 118
SprottT.Reid 782
Squire ▼. Gitv of Somenrille. .... 118
Squire ▼. HoUenbeck 676, 734
Stacey ▼. FrankUn Fire Ine. Ck>.. 481
Stafford v. City ol ProWdenoe. . . 118
Stafford v. Onderdonk 181
Stable. CMaUey 692
Stalkers. State 679
Standeford ▼. Devol 199
Stanton County ▼. MaHiiom
County 181
Stanton V. Leland 407
State ▼.Adams 181
Statey. Bachelder 740
Stater. Seal 823
State ▼. Benner 821,822
Stote ▼. Bowen 761
State ▼. Brown 280^680
State ▼. Chovin 201
State V. Dee 76
Statey. Digby 109
State ▼.DiBud 267
State r. DavideoD 821, 322
State ▼. Edwards 320
State ▼. Fairdoogh. 644
Statev. Fenly 214
Statey. Floyd 219
State y. Foster 820
State y. Gregory 321
State y. Gut 76
Statey. Hagood 386
Statey. Hanley 76, 76
State y. Homes 644
Statey. Hoyt 624
State y. Johnson 72, 76,624
Statey. Kiims 181
State V. Lautenschhiger 75
State y. Mclntire 695
State y. Miller 108
Statey. Morgan 72
PAOB
State y. NewUnd 680
State y. Qyerton 901,902,207
State y. Patterson 321
State y. People 321
State V. Porter 750
State y. Richmond 630
Statey. Richter 692
Statey. Smith 680
State y. Sorenson 76
State y. Spalding 680
State y. Staples 322
State y. Superyisort of Town of
Belot 602
Statey.Tappan 726
State y. Thompson 75
State y. Tripp. 76
State y. Van Honten 680
Statey. Whit 574
State y. Whittier 320
State y. Williams 680
State y. WiUingham 321
Statey. Wood 75
State y. Wright 148
State Bank y. Cos 297
State Bank y. Tweedy 159
Steamboat Keystone ▼. Mc^. • . 191
Steams ▼.Bomham 801, 310
Stedmsn y. Fiedler 366
Steeley. Mofl^er 764
Steele y. Townsend 667
Steen y. Niagara Fixe Ins. Co... 348
Steere y. Miller 183
Stemaa y. Harrison 171
Stephens y. Fran^ton 132
Stetson y. Chicago & E. R. R.
Co 114
Steyens y. Seals 198
Steyens y. Lynch 554
Steyenson ▼. Belknip 287
Steyenson y. Lombard 327
Sfeeyes y. Oswego and ftrraoose
RwR.Co. 420,422
Stewart y. K. Y. C. F 181
Stewart y. Nudhols 782
Stewart y. Walters 235
Stifflery. Stieler 533
Stillman y. Northern Paoifio etc.
R. R. Co ,. 115
StOlweU y. N. Y. Cent. R. R. Ca 360
St. John y. American Mut. Fire
and Marine Ins. Co 246, 348
St John y. West 69
St Louis, A., & T. R. R. y. An-
derson 114
St. Louis etc. R. R. Co. y. Capps. 114
St Louis etc. R. R. Ca y. Kirby. 116
St Louis etc. Ky Co. y. Teters. . 114
St Michael's Church y. County of
Philadelphia 268, 269, 270
Stoddard V. Clarke 181
Stockoe y. Cowan 628, 630
Stokely's Estate 517
Stokes V. Coffey 531
42
Oases Citbd.
Stokei ▼. Knar 704
Stokei ▼. Baltomtall 858
Stone ▼. Gloog)! 194
Ston«T. Locke 181
Stone ▼.R.R.Oo 208
Stone ▼. Scripture 310
StorjT. Kemp 181
Story ▼. Manuiall 65
StontT. CityF. Ini. Co 549
Strachn v. Foes 212
Stratton ▼. Stratton 658
Strauss, In re, ▼. Meyer 182
Strawbrito ▼. GarUedge 471
Streetv. City of N. 0 267,268
Strong V. Converse 471
Strong, Petitioner 751
Strouse v. Becker 567, 569
Sonbory & K R. B. Co. ▼. Hum-
meU 116
SupenrisoTB v. Hendry 386
Supervisors ▼. CMall^ 416
Supervisors etc v. Bnffss 181
Supreme Council of CTM. B. A.
v.Priert; 534
Susquehanna Ins. Co. v. PerriDe.547,
548
Sutherland v. Brush 305
Sutton V. Louisville 1 13
Suydam v. Barber. 465
Swafibrd v. Whipple 70
Swamsoot Machine Co. V.Walker. 320
Swan V. County of Middlesex . . . 119
Swan V. Manchester et& B.. B..
Co 208
Swan V. Snow 532
Swartael v. Rogers 182
Sweeney v. United States 114, 118,
121
Sweet V. Jaoocks 297
Sweringen v. Eberins 782
Swett V. Colgate 430
Swiftv.^nes 688
Swift V. Winterbotham 443
Swink V. Snodgrass 782
Switzer v. Skiles 688
Sylvester v. Smith 131
Sylvester v. Swan 353
Symonds v. Cincinnati 109, 1 16
Symonds v. Harris 148
Syracuse City Bank v. Davis. ... 98
Taaks V. Schmidt 183
Talca,The v 367
Tallman v. Bresler 332
Tallman v. Hinman 69
Talmage v. Bnrlingame 553
Tannahill V. TutUe 148^675
Tannerv. Hall 476
Tatem, Doe ex dem. v. Flsine. . . . 701
Tato V. Ohio k Miss. R. R. .... 65, 66
Taunton v. Plymouth 632
Taylor V. Barron 308
Tayknr V. Bristol 281
Taylor V. QaOoway 400
Taylor V. Horde 165
Taylor v. Jennings 820
Taylor v. Monnot 407
Taylor v. Morrison 75
Tkylor V. Newman 178
Taylor V. Pettibone 464
Taylor v. Plnmer 540
Tebbetts v. Moore 203
Telfer V. Northern R. R. Co. 616
Temple v. Lawson 182
Templeton v. Voefaloe 458
Templin V. Iowa City 88
Terre Hanto, A., It St. L. R. R.
Co. V. Dalby 202
Texas It St. L. R'y Co. v. CeUa. .115,
116, 118
Texas k St L. R'y Co. v. Eddy. . 118
Texas It St. L. RV ▼• Kirby . ... 118
Texas & St L. R. R. Co. v. Mat-
thews 120
Tewksbury v. BuoUin 493
Thayer v. St Louis et& R. R.
Co. 427,497
Thickst<m v. Howard 408, 410
Thomas Earl's Case 536
Thomas V. Dakin 384
Thomas v. Hunnicott 591
Thomas v. Mackey 55
Thomas v. Winchester 438, 444
Thomas v. West 705, 707
Thomason v. Odum 150
Thompson v. Allen 55
Thompson v. Bremage 782
Thompson V. Cundiff 531, 533
Thompson v. Feagin 56
Thompson v. Field 161
Thompson v. Mills 55
Thompson v. Morgan 96, 97
Thompson v Roquemore 768
Thompson V. Steamboat Morton. 669
Thompson v. Wilson 301, 310
Thomson v. Davenport 132
Thoms V. Southard 367
Thomdike v. De Wolf 365
Thornton v. Mulquinne 129
Thorpv. Merrill 100
Tide Water Canal Co. v. Archer. 118»
120
Tier v. Lampson 612
Tillou V. Kingstcm Mut Ins.
Co 339,340,341
Timms v. Shannon 471, 503
Todd V. Piriey 504
Todd V. Old Colony eta R. R.
Co. 88,330,622
Tolles V. Wood 241
Tomlin v. Hatfield 222
Tompkins v. Saltmarsh 125
Tonawanda R. R. Co. v. Mun-
ger 420,493
Tonica It P. Rw Rw Co. v. Un-
sicker 114
Cases Cttbd.
43
▼. IjondflB. firii^toOy
and Bonth OoMfe B> Oo. 428
676
Town of Guilford ▼. SaperviBon
of ChenMtfo Coimty. 258
Towji of WestmoTB ▼• Town of
Sheffield. 622
TownoB T. Dozbin 808
Toiwne ▼. Wiley 661
Towns ▼. Gheshire Bw R. Co. 493
TowBon T. Havre de Qneo BIl. . 407»
410
Toser ▼. Kew York etc R. B... 274
Trwdwell T. Bainey 769
T^eeothiek t. Anrtm 810
Tramain ▼. Coboes Co. 62
Triplett ▼. GnliAm 66
Troo^Ertateof 638
Troy lion etc FiMstory ▼. Com-
ing 184
Troy V. Sargnnt 633
Tnuteee of College Poinfc ▼. D«q-
nett 117
Tmstees of Dartmoath CollMre ▼.
Woodward 256^260
Trasteee T. Greenoogfa 184
Tmstees Pen Yan ▼. Forbes 69
Tmstees of Schools ▼. Snell 96
Tucker ▼. Boston 222
Tocker v. Moreland 661
Tador Ice Co. v. Cnnningham. . . 280
Taller ▼. TUbot 869
Tollia V. Fridley 60
Timno r.Betsina 867,868
Turner ▼. Banows..... 866
Tozney ▼. State 81, 820
Tnrrell ▼. Warren 69
Tattle V. Robinson 228
TatUey. Stroat 106
Twomley V. Cent Fsrk eto. B. B. 274
Tyler v. Webster 201
Tyree r. Wilson 462
UhlY. Billon 236
Ulster Coanty Bank ▼.McEtflan. 169
Underbill ▼. City of Manchester. 269
Underbill V. Welton 637
Union Bank v. Coster 169
Union Bank of Georgetown ▼.
Geary. 140
Union l>epot etc Co. v. Brans-
wick 67
United Ins. Ca v. Scott 368
United States v. Arredondo 92
United States ▼. Greathoose. ... . 779
United States y. Gnthrie 751
United States ▼. Lands in Mon-
terevCo. 120
United States v, Lawrence 761
United States v. Vigol 73
United States ▼. Whits 322
United States Bank ▼. Binney. . . 132
United States Bank ▼. Covert. . . 169
PAOS
Upton ▼. Hnbbaid ^..JOS^Sll
Upton ▼. IMnlook 891
Utiea B. B., Mattv of 116
Utty.Long 671
Valle ▼. FlemiBg 164^166
Vandine v. Boipes 189
Van Dresor ▼. King.... 669, 678» 734
Vandegiift ▼. Be^MT 498
Van Dosen ▼. BissaD 183
Van Hagen ▼. Van Bsnaaelasr. . . 343
Van Hansen ▼. BaddiiT 748
Van Lien y. Soonlle M%. Co. . . . 427
Van Phnl ▼. Sloan 171
Van BensBslaer ▼. Bradley. ..881, 832
Van Kwnsaelaer ▼. Jewett 831
VanSantyoord ▼. St John 417
Van Steenwyok ▼. Sackett 704
Varona y. Socanas 322
Veddery. Fellows 203
Vent .▼. Osgood 632
Vicksbarg etc B. B. Co. ▼. Dil-
lard 114^ 115
Village of Mankato ▼. Meagher. 67
Village of Biaokato ▼. Willard. . 67
VinaT y. Dorcheater 193
Vining y. Bricker 441
Virginia and Trnckee B. B. Cc
y. Henry 113^ 114
Von Baninbaoh y. Bade 629
Voorbeea y. Olmstead 291
Vorhees y. Presbyterian Church
etc 64
Vose y. Hamilton Mat Ids. Cc . 481
Vosaely.Cole 286
Vroom y. Van Home 308
Wadsworth y. Wendell 96
Waffner y. Peterson 607
Wahlachlagerv. Town of Liberty. 72IQ
Waite, Matter of acconnting of.. 309,
310
Wait y. Green 297
Wakefield v. Orient Ina. Co. of
Hartford 348
Wakeley y. Mohr 690
Wakeley y. Nicholas 710
Walbrann v. Ballen 166
Walcop y. McKinney 146
Walden y. Mnrdock 467
Walker y. Borland 144
Walker y. City of Boston 119
Walker y. Emerson 590
Walker y. Griffin 220
Walker y. Jackson. ....•• 205
Walker y. Old Colony of Boston. 114,
115
Walkery. Beeyes 326, 327
Walker y. Welch 182
Wall V. Coyington*. 182
Wall y. Hinds 331
Wallace y. Lowell Institation for
Sayings 194
44
Gases Cited.
PAOB
Wallace V. Woodgate 410
Wallack v. Mayor etc of N. Y. . 270
VVallingford v. Allen 60
Waloh V. Kattenburgh 83
Walah V. Mead 274
Wardv. City of Louisville 267
Ward V. Henry 673, 733
Ward V. People 318
Ward V. State 320
Ward V. Vance 661
Ward V. Williams 612
Wardell v. Eden 502
Warden v. Sup. Fond du Lac Co. 704,
709
Ware v. Brown 442, 445
Ware y. Richardson 199
Warlick v. White 55
Warner y. Beers 384
Warner V. Hunt 735
Warner v. Supervisors of 0. Co. 707
Warren v. Brown 199
Warren v. First Div. St P. k P.
R.R. Co 121
Warren v. Fitchburg B^ B.. Co. . 427,
485,622
Warrington v. Warrington 221
Washburn ▼. Jones 407
Washburn v. Milwaukee eto.Bi.Bi.
Co 114
Washington Bank v. Boston Glass
Manuf. 184
Waterman v. Johnson 683
Waterman v. Soper 649, 650
Watertown F. Idb, Co. v. Simons. 549
Watmough y. Francis 685
Watson ▼. Crandall 444
Watson V. Hawkins 161
Watson V. Mercer. 756
Watson V. Pittsburg & C. R. R.
Co 114
Watson y. Riskamire 55
Watson V. Walker 228
Watts V. Kelson 279
Wayland y. Mosely 171
Ways's Trusts, In re 527
Weaver y. Bachert 286
Weaver v. Barden 297
Weaver v. Lynch 291
Webb, Matter of 310
Webbv.RusseU 329
Webber v. Webber 657
Webster v. Clark 228
Webster v. Hudson River R. R.
Co 359
Webster v. Le Hunt 613
Wedel v. Herman 65
Weeks v. Milwaukee 709
Weeks v. Weeks 222
Weidler v. Farmers' Bank 82
Weimer v. Clement 436
Weire v. Cily of Davenport 748
Weld V. Bradboiy 220,222
Wells V. Bngham 178
PA.OK
Wells V. Sanger. 144
Wells V. Steam Nav. Co 407
Welsh v. Wiloox 282"
Wentz v. Dehaven 501
Wcrely v. Persons 35^
Wesley v. State 75
West branch Ins. Ca v. Helfen-
stein 347
West Chester i Phila. B. R. Co.
V. McElwee 485
West V. Jacoby 556^
West v. Lynch 320, 321
West v. Milwaukee etc R'y Co . 121
West V. Moore 661, 662, 66S
West, Oliver, & Co. v. Ball 764
Westv.Skip 347
West ▼. St. L., K., C, & N. R'y
Co 166
West V. Wright 444
Weeterman v. Soper 647, 649
Western Bank V. Addie 445
Western College v. CHty of Cleve-
land 267
Western Ins. Ca v. Crqpper.243, 246,
248, 34ft
Western Pa. R. R. Co. v. HiU. . .115
Western Trans. Ca v. Kewhaw. 765
Whale V. Booth 306
Wheatley v. Strobe 17»
Wheeler V. Hughes 602
Wheeler v. Wafter 228
Whipple v. Cumberland Cotton
M^.Co 184
Whitev.Bank 194
White v. Bettis and Capps 65
White V. Charlotte etc. R. R. Co. 115
White V. Curtis 338
White Beer Creek L Co. v. Sassa-
man '119
White V. Haight. 388
White v. Hoyt 348
White v. McLean 320, 321
Whitev.Smith 34S
White V. Thomas 674
Whitehead v. Keyes 587
Whitesell v. Northampton 618
Whiting V. Sheboygan 725
Whitley v.Foy 612
Whitmarsh v. Conway Fire Ins.
Co 347
Whitney v. Waterman 69
Whiton V. Spring 367
Whitten v. Whitten 60, 61, 53
Whittier v. Franklin 225, 230
Wickleman v. Des Moines eta
R'yCo 115
Wilcox V. Henderson. 444
Wilde v. Wilde 665
Wilderv. De Cou 68
Wilder v. Lumpkin 755
Wilds V. Hudson River R. R. Ca 420,
422
Wilkes v.Hungerford Market Ca 635
Cases Cited.
45
fAQM
Wilkms ▼. Svle 409
Wilkiiisan ▼. MoMly 187
WilkinaoDT. B«wey 705
Wilcox V. Rome eto. R. R. Co. . . 359
WilkinBon V. Leland 98
VVillard ▼. Rica 677
%yilliaiiiB V. City of Hew Orl«yi8.2e7,
269
WiUiams ▼. FireinMi'B Fund Ins.
Co 349
Williams ▼• Jamas 280
WilliamsT. MatUiews 288» 290
Williams ▼. McDongall 181
WiUiams ▼. Millixigtaii 82
Williams T. Moore 630
Williams T.K.T. Cent RR Co. 65
WilliamsT. Qa&ad 281
Williams T. Shappart 865
Williams ▼. Thorn 241
WiUiams t. Town of Clinton 618
Williams T. Yates 221
Willink ▼. RaeUe 183
Willis ▼. Qoimby 187
WiUits T. Waits 303
Wilmas ▼• Minneapoliii ato. R'y
Co 119
Wilmington & R R R Co. ▼.
Stanfir 115
WOkhlt. Clarke 489
Wilson ▼. Qenesee Mat Lu. Co..340,
«, W
Wilson ▼. Havwaid 159
Wilson F. Iieiand 758
Wilson V. Korthem Faoifia R R 274
Wilson V. Railroad Co 184
Wilson T.Rockford ato. RR Co. 113
WilMny. Smith 173
Wilt T. Welsh 474^661,663
Wilts T.MomU 418
Wimbledon ete. Commons Con-
aervatocs ▼. Bizon 281
WindloT. Ouiaday 291
Wing Chnng ▼. Mayor ata of Los
Asffeles 268» 269
WinUeman ▼. Das Moines ato.
B>Co 119
Winileyy. F<^ 667
^^nonnandSt Bnl R R Cb.
▼.Danmaa 101,104^ 110
Wndiip T. Buk of U. & 132
PASS
Winship ▼. Conner 182
Winship y. Enfield 192
Winslow ▼. Minnesota ato. R R
Co 320
Winterbottom ▼. Wright. . . .441, 443
Wires ▼. Parr 626
Witmer's Appeal 148
Woart V. Wmnick 756
Wofford ▼. McKinna 59
Wolf ▼. Coonecticnt ete. Insnr-
snoeCo 184
Wolfy.Pink 556
Wolfa ▼. Snpervison of Biofa-
mond 269
Wood ▼. Brosdley 55
Wood r. Brown 182
Woody. Mears 193
Woody.Tiaak 150^ 161
Woodcock y. Bennat 781
Woodruff y. Barney 185
Woodroff y. King 785
Woods y. Pickett 867
Woodson y. Soott 144
Wooster y. Handy 181,185
Worcester Bank y. Hartfotd F.
Ins. Co 482
Word y. Vance 663
Worrall y. Jones 558, 554^ 555
Wright y. Hnnter 866
Wright y. Leonard 660
Wright y. Maiden and Malros^
RRCo. 644
Wright y. MarshaU 365,868
Wright y. Oakley 627
Wright y. Williams 348
Wroe y. State 820^ 821, 322
Wyatty. Soott 767
Wyckoffy. Gardner 695
Wyman y. Garland 490
Teatony. Fry 345
Tergary. Rams 603
Yonng y. Frier 235
Young y. Harrison 117, 118
Tonng y. Tarmoath 193
Zabriskia y. Smith 748
ZeUy.Amold 504
Zemp y . Wilmington ete. R R . 628
Zielke y. Morgan 677
AMERICAN DECISIONS
VOL LXXXVUL
CASES
STJPBEME COUBT
MINNBSOTA.
WniDBB V. Brooks
p0 MunnMOTA, MLJ
OcmwrnwAKcm wmam Hubbahd to Wxra at «I1, or iMtrly «I1, of hia
ml 6Btet9 will be nplieldwhsn it appears to haTe bMD a fair trannotioii,
Mw^itiitiiig to no more than a reaaooable proviaion for the wife'a mainte-
naaee and aappott, and not prejudicial to ereditovs.
BaooBO OF OoarmrAms noM Hvbbavd to Wm afcaoda npon the aame
footing aa any other conTeyaaee, ao far aa the reoord ta made notice.
Action to remove oloud on title caused by a judgment lien
of defendants against one Torbett, onder and thnmgh whom
plaintiff claims title. The opinion states the fkots.
Van Eiten and Officer ^ for the appellant.
LoTtmo AUi»^ for the respondents.
By Courts Bsbbt, J. The determination of this case depehds
upon the effect to be given to the instrument recited in the find-
ing of the court below, and running from Andrew M. Torbett
to his wife. No question is made upon the manner of its exe-
cution or the sufficiency of its l-ecord. If it conveyed a good
title to Mrs. Torbett, we perceive no reason to doubt that Mrs.
Wilder, the appellant, acquired and now possesses a good title
to the property in dispute by virtue of the subsequent convey-
ances. It nowhere appears that the cause of action upon
which the respondents' judgment was recovered existed at the
time when the instrument above referred to was executed and
recorded. Nor does it appear that at that time Andrew^.
Torbett was indebted to any person, nor that he executed t9ie
AH. Db& Vol. LXXXVm^ 49
60 WiLDEB V. Brooks. [Minn.
inBtrument in anticipation of contracting the indebtednesa
upon which the judgment was based, or any other indebted-
ness. Again, the instrument of conveyance was executed and
placed upon record on the first day of October, 1858, while the
judgment which the respondents claim to be a lien upon the
premises was rendered on the sixteenth day of January, 1859,
and docketed in the county where the premises are situated
on the twenty -fourth day of the same month. Under these cir-
cumstances there is no presumption against the transaction
between Torbett and his wife, on account of fraud, actual or
constructive: Sextan v. WheaUm^ 8 Wheat. 229. And had the
conveyance been made to any person other than his wife, and
even for a merely nominal consideration, we see no reason why
it would not have been completely unassailable. If these prem-
ises are sound, it follows that if the instrument was efiectual
between Andrew M. Torbett and his wife to pass the property,
it was good as to all the world, and t;iO0 i;«r8a. The first queetioa
to be encountered is as to the capacity of a wife to take prop-
erty from her husband by transfer to herself directly. Black-
stone says: " By marriage, the husband and wife are one person
in law For this reason a man cannot grant anything to
his wife, or enter into covenant with her; for the grant would
be to suppose her separate existence, and to covenant with her
would be only to covenant with himself": 1 Bla. Com. 442; 2
Kent's Com. 129. This is unquestionably the rule at law; but
in equity it is subject to some exceptions, and these contracts^
gifts, and conveyances running from husband to wife, directly
and without the interposition of trustees, or of any third per-
son, to serve as a conduit, are sometimes supported, unless
made in fraud of creditors, etc.: Beard v. Beardy 3 Atk. 72; 1
Fonb. £q. 97, note n, and cases cited; 2 Story's £q. Jur., sees.
1372-1375, 1380; Shepard v. Shepard^ 7 Johns. Ch. 57 [11 Am.
Dec. 30(^]; 2 Kent's Com., 10th ed., 163, and notes; Livingston
V. Livifigstan, 2 Johns. Ch. 537; 1 Washburn on Real Property,
p. 279, sec. 14; Whitten v. WMtten, 5 Cush. 42, 1 Lead. Cas.
Eq., 3d Am. ed., 540, 541; WaUingford v. AUen, 10 Pet 583;
Sexton V. Wheaton^ 8 Wheat. 242, 249; Neufville v. Thoinsonj 3
Edw. Ch. 92; Reeve's Domestic Relations, 90; Tullis v. Frid-
ley^ 9 Minn. 79; Simmone wMcElwain^ 26 Barb. 419; Iluberr,
Huber, 10 Ohio, 373.
It is a matter of almost daily occurrence for a husband to
convey land to his wife indirectly by conveying to some third
person, who conveys to the wife directly, and this practice is
Jan. 1865.] Wildbb v. Bbookb. 51
Mncti<med by authority: Jewell v. Porter^ 81 N. H. 38; Beeve't
Domestic RelationB, 90. Contracts of all kinds between hus-
band and wife are objected to, not only because they are incon-
sistent with the common-law doctrine that the parties are one
person in law, bnt because they introduce the disturbing in-
fluences of bargain and sale into the marriage relation, and
induce a separation rather than a unity of interests. But cer-
tainly neither in reason nor on principle can it be contended
thaty so far as this objection is concerned, there is any difiSsr-
ence between the cases of a conveyance by a husband to trus-
tees for the use of a wife, or to a third person who conveys to
the wife, or to the wife directly. Each of these would have
predsely the same efiSect in conferring upon the wife property
and interests independent of and separate from her husband.
This separation of interests is quite generally sanctioned by
express enactments, and by our own statute: Pub. Stats., p.
571, sec. 106. And the tendency of modem legislation, as well
as of judicial interpretation, is to improve and liberalize the
marital relation by recognising and upholding tiie reasonable
rights of both parties to (he matrimonial contract. It is stated
in note 6, to page 163, Kent's Com., 10th ed., that "the Eng-
lish statute of 3 & 4 William FV. has now given sanction to
this doctrine [referring to the doctrine that gifts from husband
to wife are supported without the intervention of trustees as
laid down in the text], and the husband is allowed to make a
conveyance to his wife without the intervention of a trustee."
This would seem to be in harmony with the rule adopted by
the courts of equity: See cases cited in note b. Under the
authorities before referred to, there can be no doubt that con-
veyances from husband to wife directly are sometimes upheld.
And post-nuptial conveyances, even when voluntary and with-
out consideration, have been repeatedly sustained when the
object was to make a settlement upon the wife or a provision
for her maintenance and support: 2 Story's Eq. Jur., sees.
1374, 1375; 1 Parsons on Contracts, 5th ed., 370, and notes;
1 Kent's Com. 163, 166. And where the conveyance is by an
ordinary deed, and not by a formal deed of settlement, the
presumption is that it was made by way of advancement and
provision for the wife: W kitten v. Whitten^ 5 Cush. 42. The
court below finds that the property in question was, at the
time of its attempted transfer to Mrs. Torbett, the whole estate
of her husband, Andrew M. Torbett. Story says: ''If a hus-
band grant all his estate or property to his wife, the deed would
62 Wilder v. Brooks. [Minii»
be held inoperative in equity, as it would in law, for it would
in no just sense be deemed a reasonable provision for her
(which is all that courts of equity hold the wife entitled to),
and in giving her the whole he would surrender all his own
interests. But on the other hand, if the nature and circumr
stances of the gift or grant, whether it be express or implied,
are such that there is no ground to suspect fraud, but it
amounts only to a reasonable provision for the wife, it will,
though made after coverture, be sustained in equity '': 2 Story's
Bq. Jur., sees. 1374, 1375. To the same effect cases referred to
in American notes to White and Tudor's Leading Cases in
Equity, 8d Am. ed., 640. This doctrine is quite commonly
referred to by text-writers: 1 Bright on Husband and Wife, 88.
Its origin would seem to be found in a dictum of Lord Hard-
wicke in Beard v. Beardy 8 Atk. 72. In that case the hus-
band by deed poll gave to his wife all his substance which he
then had or might thereafter have. Lord Hardwicke held that
the transaction could not take effect as a grant or deed of gift
to the wife, '^ because the law will not permit a man in his life*
time to make a grant or conveyance to the wife; neither will
this court suffer the wife to have the whole of the husband's
estate while he is living, for it is not in the nature of a pro-
vision, which is all the wife is entitled to.'' Unless he means
that the law, as distinguished from equity, will not uphold a
conveyance from husband to wife, he has, so far at leasts been
clearly overruled, as we have seen. I^ however, it be true
that a conveyance of his whole estate by husband to wife is
inoperative, then the deed in the case before us cannot stand.
In the first place it is to be observed that in the case decided
by Lord Hardwicke, the transfer was not only of what the hus-
band then had, but of all he might acquire, and it would not
necessarily follow from that decision that if the conveyance
had been confined to property of which the husband was then
owner it would have been held inoperative and void. That
was a somewhat remarkable case, and one in which the result,
if the conveyance were supported, might be to reverse the nat-
ural and relative position of the parties to the marriage con-
tract, so that the husband, instead of being the bead of the
family, would be transformed into a ''hired man" for his wife.
On the other hand, Kent lays down the rule without qualifica-
tion as follows: "Gifts from the husband to the wife may be
supported as her separate property if they be not prejudicial
to creditors": 2Wiiiatn v. Cohoes Co., 2 N. Y. 163; Atherly <m
Jan. 1865.] Wildbb v. Bbooks* 68
Harriage Settlements, 830. In WhUien y. Whiiten^ 8 Cnah.
191, the husband had given the wife a power of attorney to
collect and receive all moneys, etc., due or payable, belonging
or coming to him, and to her own use. The wife had gone on
under the pow«r ; collecting and making investments in her
own name until, ahe h^A appropriated to herself the whole of
her husband's property. Under these circumstances the court
hold, as against the heirs of the husband, that "the legal es-
tate is clearly in her, and the presumption of law is that it is
for her own benefit": WhUten v. WhiUeUy 8 Id. 200. In the
case of Sexton v. WheaUm^ 8 Wheat. 242, where the validity of
a post-nuptial voluntary settlement made by a husband upon
his wife was in question, MarshalL C. J., says: "It would seem
to be a consequence of that absolute power which a man pos-
seaaes over his own property that he may make any disposition
of it which does not interfere with the existing rights of others,
and such di6i)osition of it, if it be fair and real, will be valid."
Speaking of the case before him, he says: "The appellant con-
tends that the house and lot contained in this deed constituted
the bulk of Joseph Wheaton's estate, and that the conveyance
ought on that account to be deemed fraudulent If a
man entirely unencumbered has a right to make a voluntary
settlement of a part of his estate, it is difficult to say how
much of it he may settle. In the case of Stephens v. Olive^ 2
Brown Ch. 90, the whole real estate appears to have been set-
tled subject to a mortgage of five hundred pounds, yet that
settlement was sustained." Notwithstanding our statute upon
the subject of uses and trusts, we think the fact that the origi-
nal purchase-money of the premises in litigation was furnished
by Mrs. Torbett out of her separate estate has a tendency to
raise a sort of meritorious consideration for the conveyance
firom her husband to her (see 2 Kent's Com. 174), and to es-
tablish the reasonableness and equitable standing of the pro-
vision made for her, taking into account all the circumstances
of the case. And if it was necessary to say anything further
upon the question of reasonableness, so far as appears, there
is nothing in the amount or value of the property conveyed,
consisting as it did of a house and block of lots used as a
homestead, going to show that here was any extravagant or
inequitable or unsuitable provision for the wife. We have not
enlarged upon the fact that the house and a part of the land
upon which it was built were, before the conveyance to her,
mbject to her rights under the homestead law^ though we per-
54 Wilder v. Bbooes. [IQhil
ceive no reason why this circnmstanoe might not pwpeaAj be
taken into consideration.
We uphold the conveyance from Torbett to his wifii upon
the ground that, all the facts considered, it appears to have
been a fair transaction, to amount to no more tiian a reason-
able provision for the wife's maintenance and support, and
because it was not prejudicial to creditors. Further than this
it LB not necessary for us to go in this case, though if we went
further we should not be compelled to go alone.
It is claimed by the respondent that whatever right Mrs.
Torbett had was but an equity, and so in the absence of actual
notice the judgment lien under our statute was paramount:
Pub. Stats., p. 404, sec. 54. Our recording statutes, however,
appear to make no distinction between the efifect of the record
of a conveyance passing a title in law and of an instrument
raising an equity. The term "conveyance" is defined in the
statute ''to embrace every instrument in writing by which any
estate or interest in real estate is created, etc., or by which the
title to any real estate may be affected in law or equity," etc.:
Pub. Stats., p. 405, sec. 63. And all such conveyances seem
to be put upon the same footing, so far as the record is made
notice. The judgment below is reversed, and the cause re-
manded, with instructions to render judgment finr the plaintiff
conformably to this decision.
DiBXCT ComnTANCx VBOM Husband to Wm. —Some of tbo mdj
in a few of the atates nmintMiiiiig the oonunon-law nJe of the unity of hns-
bead and wife hold that be cannot convey land directly to her, and thai a
deed ao made is void at law: Doe ex dan, AlboU v. Hwrd^ 7 BlackL 610;
Mcarikii v. Mcariin^ 1 Me. 357; Voorheee ▼. Pretb^Urkm Cktsrch etc, 17 Barb.
103; Fowler y. Trtbem, 16 Ohio St. 493; Parier v. SbidBeri, 2 Milea, 278;
SimeY. RkkeU, S& hid. 181; Loomier, Brmeh, 36 Mich. 40; Hmni ▼. Johum,
44 N. Y. 27. And nnder aome of the Utter deciaiona the aame mle ia main-
tained: Avltman, Taylor ^ A Co. ▼. O&ermeyer, 6 Neb. 260; Jdhmon v. Vanier-
vorl, 16 Id. 144; Joiner ▼. Franklin, 12 Lea» 420. In Ohio aneh oonyeyance ta
void at law nnder any cironmatanoea, and ia alao void in eqoity if not made for
a valoable oonaideration: Orooh v. CrooiBe, 34 Ohio St 610. Bnt if made upon
sufficient consideration it will be enforced in equity if shown to be in the nature
of a aettlement» and intended aa a reaaonable provision for the anpport of the
wife: Crooks v. Crooks, 34 Id. 615, citing the principal case to the latter point
A direct conveyance of lands from husband to wife vesta in her only an equi-
table estate, the legal title remaining in the huaband: Power, McLeod A Co,,
k > Ala. 418. So where a huaband, in view of enlistment in the army, con-
^ycd his real eatate to hia wife directly for a nominal oonaideration, the
Btuaaetion waa declared to be void at law, but enforceable in equity: Dak
■ Linoo/n, 62 HL 22. It baa lately been decided, however, by the higiieal
Blbunal of jnatioe in the had, that the technical reaacna of the ooaunon law
Jan. 1866.] Wildbb t^. Bsoosa.
•rinng from ^ba waity of hoBbaad and wife^ wfaieli pww>>d him from ooa*
v«ymg pitipefl^ directly to her, have kaig nnoo omied to csbt «r opentt in
eases of bis Tolimtary tnmaf or of his property to her as a settlement apoB
ber, and timt Mich conveyaiioes sre valid, nnlsm fniid is inteoded, or tiie
ozistiiig rigliti and claims of creditors are thereby impaired: Jotim t. Olifkm^
101 U. S. 2tf; Jibert ▼. Page, 111 Id. 117. This role geMrmUy pnrfaOs
thronghmit thestaies, either wider statates eolacgiog the rights of married
womeOy as in Miehigan: Burdeno ▼. Ampermf 14 Mich. 01; and in Maine:
Joktuon V. 8timff8,35^^431; BMer y. BoberU, 49 Id. 4/60; AUemr.ffooper,
90 Id. 871; and in Missiflsippi, bat the instmment must be filed for record to
be valid and bidding as to third parties: Chtgory, Stoffg, ^ Co. ▼. Doddi, 00
649. Soeh is the Uw in California: Civ. Code, sec 168; Weddr. Her'
69 Oil 616; and in Iowa: Hitman r. Stiffen, 28 Iowa, 806. Or vpoo
the general principles Uid down by the United States supreme court: Supra;
Ckamben t. SaUie, 29 Ark. 407; Brtnm ▼. Spivey, 63 Oa. 166; MtCaw t.
Bmri, 31 Ind. 66; BrooUfa^ v. Kenniwd, 41 Id. 339; Sherman ▼. ffogkmd, 64
Id. 678; im^ ▼. Begiater, 77 Am. Deo. 622; Story v. MarOaB, 76 Id. 106,
and note; Eohter ▼. Aehemmer, 17 Od. 678; White r. BettU and Oapp§, 9
Heisk. 646; Thomas v. Madbey, 3 CoL 890; Crauifard ▼. Logan, 97 OL 806;
SiOmetag ▼. Fraak, 61 Ala. 67; Sedgwkk v. Place, 6 Ben. 184; Lareot v. iMoem^
- 103 HL 121; Carr v, Breeee, 81 K. T. 684; Pom. SaU Mfg. Co. ▼. Nod, 64
Ba. SL 9. A Tolnntary deed of land from husband to wife, if made in good
fiaitli, and the husband is free from debt^ will be upheld, although the eon-
▼eyanoe may have included all of his land and a large proportion of his pe^
sonal property: Thompotm v. AUon, 108 Pit. St. 44; 8. C, 49 Am. Rep. 116.
Hor is it void because it embraces all of his property, unless an excessive
pnFvinca is thereby made for the wife: ITooef v. Broadley, 76 Ma 23; 8. C,
43 Am. Bep. 764; and such conTeyanoe is valid as against the husband's heirs:
Me^ore v. Bverton, 89 SL 66; a C, 31 Am. Bep. 66; Border v. Border, 23
Sail. 167; S. C, iz Am. Rep. 167; although such deed ii valid as against
■■haequent creditors: Craetford v. Logan, 97 BL 896; Lneao v. Luoae, 103 Id.
121. Such conveyance is void if tiie grantcrwas insolvent at the time it waa
exeoaiad: Cranqford v. Logcat, wapra; WaUon v. BiAamhre, 46 Iowa, 231;
TrlpteU T« Qraham, 68 Id. 136.
Or if he was greatly embarrassed financially, and did not retain properly
— ^^**^* to meet his liabilities: Pattereon v.~ McKhmeg, 97 lawn, 41; Onm-
>bnl V. Xo^on, 97 Id. 396; Amtin v. ^imln, 24 K. J. Eq. 184^ 191 And the
deed win not be sustained if the provision made for the wile is eatoesrive or
if she is an adulteress: War^ei v. WhUe, 86 K. C 139; a C, 41 Am. Bep.
468.
In regard to oonveyanoes from husband to wife directly, made upon con-
sideration, it may be said that soeh deeds are valid and hindiag when made
wittMNtt any fraodulent intent: Addidben v. Bumphal, 66 Iowa, 366; BedetC*
Appeal, 87 PlL St. 610. If the husband was indebted to the wife before his
macxiafe he may legsUy convey his Unda or other property to her in paymeut
el hii indebtedneai: Barelag v. Pbad, 60 Ala. 609. So the conveyanoe is
valid wben it makes only a reasonable and proper provision for the wife^ and
it appears that her property had been enjoyed in the purchase of the land:
ChUde T. CbMMr, 48 Hew, Fh 618. Or where tiie moving consideration is the
money procnied from tiie aepawte estate of the wife, and used by the hus-
band in the puzehaee of the land conveyed by him to her: Thmnpeon v. MiBe,
89 Ind. 628b And a conveyance by a husband to Ids wife in conaidttation of
money bormwed tnm bar, without notioe of fraadulMit iatwl^ is good as
56 'Bmwxix v. Wsbb. [Miirn.
againrt olilMr €ndtton: Began ▼. IMk^wi^ M Id. 138. I! inidB homJUU
and for Tmlve H is filid i^amst crediton aad all the world: 2^kMn|Moii ▼.
Feoffin, 0€ 0*. 82.
EBren Tinder a siatate proliibiting the hnaband from *»^^^g oontracta witii
the wife ooooenung or for the aale of any pwiperiy, the hoiAand oaanot be
prevented from ezeoating, and the wife from aooeptang^ a oony^yaaoe in
rertitntionof momaya helnnghig toher whioh he had received and a^wpriatad
to hia oiWB wax GaodkU r. SmmU. W Aim. 161.
BiDWBLL t7. WbBB»
no ICmnaoTA, OOl J
Nonm 07 Tax Sazji Bsquibxd bt Qtatutm la naaantlal to the vaUditj of
the Bale.
KoTXOB OT Tax Sali Hbadsd as Foillowb: ''Aaditor'a QflKoe, Bamaej
County, Minneaota^ St. FlMil, Deoember 8, 1802;" and oontaining no far-
ther deacription of the premiaes than aa " Boberta and BandaU'a Additiant
lot 11, block 20, lot 12, block 20," and nowhere deaorihing the additiop
or lota aa being in any particnlar city or ooonty, ia inaafficient.
Nonci ov Tax Sali mubt Oitb Pabttoular and certain deaoriptum of
land to be aold, so that the owner may know that it ia hia land, and
bidden may aaoertain ita locality, with a view to the ragnlatioii of their
bida.
Wexrb Nomm ot Tax Sali o InsuifjuiuiT, the officer haa no antiioriliy
to aell, the aale it void, and the parchaaor acqnirea no title and takaa
nothing by hia deed.
EmoBOBMXNT or Lddc Aoqudued tkbocoh Tax Sals. — Gbima of eatataa
or intereata in real property adverae to the ocoapant are the only mattera
within the porview of the Minneaota atatate allowing an aetioii to ba
brooght by the party in pooaeaaion of real eatate or by hia tenant ^gnhift
any peraon niMmmg an adverae eatate or intereat therein, and a lien
aoqnired through a tax aale ia not a proper anbject for adjudication in aa
action brooght nnder anch atatnte. It mnat be enforoed in a aaparata
actiou.
Idnr VFQV Laitd d hot Bbtaxs or hstsNat theratn, bat bmnI/ n chaiga
nponit
Thb opmion statee the taebs.
Smith and OUtnan and WM>^ tot the plaintiff in enor.
Otis^ for the defendant in error.
By Court, McMillan, J. This action is brought nnder 8eo>
lion 1, chapter 64, of the Compiled Statutes. The complaint
alleges that the plaintiff is the owner and in possession of
lots 11 and 12, in block 20, in Roberts and Randall's Addi-
tion to St. Paul, and that the defendant claims an interest
and estate in and to the premises adverse to the plaintiff, and
demands that such adverse claim, estate, and interest be de>
Jan. 1865.] Bidwbll v. Webb. S7
tafmined, etc. The defendant, after taking issne on the alle-
gatiaiui in the complaint, sets np a title by purchase at tax sale
under the provisions of an act of the legislature, approved
Marcli 11, 1862, entitled "An act in relation to the redemption
of lands sold for taxes, and relating to taxes and tax sales."
She also claims a lien on the premises, in case her title should
be adjudged invalid, for the amount of the purchase-money
and subsequent taxes on the premises paid by her.
The first question to be determined la the validity of the
title acquired by the defendant by the tax sale. Section 7 of
the act referred to is as follows: "That any person having or
claiming any right, title, or interest in or to any land or prem-
ises, after a sale under the provisions of this act, adverse to
the title or claim of the purchaser at any such tax sale, his
heirs or assigns, shall, within one year from the time of the
reoording of the tax deed for such premises, commence an ac-
tion for the purpose of testing the validity of such sale, or be for-
ever barred in the premises: Sess. Laws, 1862, p. 35. The tax
deed of the defendant was recorded on the twenty-third day
of December, 1863. This action was commenced in January,
1864. The action having been brought within the time lim-
ited by the statute, the validity of the sale is a proper subject
of inquiry.
The second section of the act prescribes, among other things,
that it shall be the duty of the oounty auditor to advertise the
lands for sale, stating therein that such lands will be sold as
forfeited to the state under the provisions of the act, and the
time and place of sale, which time shall be on the second
Monday in January, 1863. There is no provision making the
tax deed evidence of the preliminary proceedings. The notice
of sale required by the statute is essential to the validity of
the sale; It is a condition precedent to the authority of the
officer to sell the land. The referee finds that the notice of
sale in this case contained no further description of the prem-
ises than tiie following, viz.: —
''BOBXBTS Aim RATTRAfJi'a Abditioh.
«<Lotll, BIk2a
"Lotl2»Blk2D,-
^And nowhere described said lots or said addition as being
in the dty of St. Paul, nor in Ramsey County, nor was said
county mentioned nor in any manner referred to in said notice,
except that the same was headed and dated as follows: —
*' Aodite'f Office, Runoey Coonty, Minn., St Pftnl, December 8, 1862 *'
68 BiDWELL V. Webb. [Minn.
One object of advertising tax sales is to give notice to iho
tax-payer, that be may pay the tax; another, eqnally impor-
tant, is to give notice to the pnblic, that they may have an
opportunity of being present at the sale and bidding for the
land. In describing the land the advertisement must pve a
particular and certain description, so that the owner may
know that it is his land, and bidders may ascertain its locality,
with a view to the regulation of their bids: Black well on Tax
Titles, 266. The description in this case is insufficienl. It ia
impossible to determine from the description of the land in
the notice what addition of Roberts and Randall is referred
to. It may be an addition to St. Paul, St Anthony, or any
other place, — it may be in Ramsey or any other county. The
plaintifif was not informed by this notice tiiat it was his land
which was taxed, nor could bidders ascertain from the notice
the locality of the land. The statement at the head of the
notice is merely the date of the advertisement, identifying
the auditor's office, whence and the time when the notice
issued, and cannot be regarded as referring to the premises to
be sold, or aid in their description. The officer therefore had
no authority to sell, and the sale is void. The defendant
therefore acquired no title by her purchase, and took nothing
by her deed. As a further defense, the defendant sets up tacts
which she claims constitute a lien in her favor on the prem-
ises described in the complaint.
The section of the statute under which this action la broof^t
is as follows: ^'An action may be brought by any person in
possession, by himself or his tenants, of real property, against
any person who may claim an estate or interest therein ad-
verse to him, for the purpose of determining such adverse
claim, estate, or interest": Comp. Stats. 595, c. 64, sec. 1.
The (mly matters embraced within the purview of Ais section
are claims of estates or interests in real property adverse to
the occupant: Meighen v. Strongy 6 Minn. 179 [80 Am. Dec.
441].. A lien upon land is not an estate or interest in it, but
merely a charge upon it: 2 Bouv. Law Diet, tit. Lien. So
far, therefore, as the defendant's claim for a lien on the prem-
ises is concerned, it is not by the terms of the statute a proper
subject for adjudication in this action. Nor is this such an
action as is contemplated by the eighth section of the tax law,
which confers the lien, and provides that it ^* may be enforced
by action, or required by the court to be paid before awarding
a writ of possession to the person claiming adversely to the
Jan. 1865.] Schurmeier v. St. Paul etc. R. R. Co. 59
parchaser at the tax Bale or his assignee"; for, as the plaintiff
mnst necessarily be in possession to maintain this action, he
neither asks nor needs aid from the court to obtain possession.
The defense therefore cannot be sustained, but the defendant
must resort to a separate action to enforce her lien. This view
of the case renders it unnecessary to consider any other of the
questions raised upon the argument But as tiie judgment
entered in the court below determines that the defendant has
no interest, lien, or estate in or to the premises, it should be
so modified as to exclude any adjudication upon the question
of the defendant's lien upon the premises. With this modifi-
cation the judgment below is affirmed.
Srucr CoHPLiAKCB WITH All BsQuntsiiBiiTB or Statotb is
tothe validity of a tuc tale: JTetToAat ▼. Ovr, 71 Am. Dee. 421, and noto 427;
RiAe^ y. HtmUman, 82 Id. 143» end noto 144.
AxfrKBBtaMMJDn or Tax Sale, when fauniBaient: Sealet v. Akia, 46 An*
Dee.26S.
BuwwmMKCT ov DnoBiPnoH in advertiaeQieiit of tax eale: Lyni t. Jffutd^
46 Am. I>aa 216; Alexander ▼. Walter, 60 Id. 688. Ae to insofficieiioy of
dflaeription in tax deed, see Wffford ▼. McEhuut, 76 Id. 63, and noto 67.
Lbs IB HxHKLT Ckabox upon land or personalty: DomUd t. HewUi, 73
Am. Dec 431, and noto 439. A lien npon land is merely a charge upon it»
and not aa estato or interest therein, and is tberefore aot a proper snbjeet for
adjudication in aa aetion brought nader the Minnesota statato allowing a
party or bis tenant in possession ol land to bring an actioa to determine some
tdverse claim, interest^ or estato thereia set up by aaother party: BratkeU t.
Oamort, 16 Minn. 261; Twnr^^.Worrm^f&IL 13; AMdtoe ▼. Lodd; 31 U.
MB^ all citing the prino^al
SOHURMIEIRB V. St. PaUL AND PaOIFIO R. R Go.
110 MivivaeoTA, 81.]
CoBBBcnins of Bouriubihi ot Public Lahmi as shown by the gorem-
meat plat and snryeyuider which sales haTC been made, cannot be qoes*
tiooed.
Wnoui PuBUO Lahxmi Bordsbiiio ov Stbxam nayigaUe in fact are shown
by the goremment sarvey and plat, nnder which sales haTO been made,
to be boonded by a river, the maigin of such riTcr, and not the meander
lines mn by the sonreyor, mnst cootrol in detormining what amoont of
lead a graatee takes nader his grant In such esse tiie meander lines
eanaoi limit the grant in a pateat.
QmuRn or Poblio Laxsb Bobdkbiiio ojr Rnmi navigable ia faot^ bat
abovo tiie flow of the tide, takes the land absolntely to low-water mark,
and obtains the fee in the bed of the stream to the middle thereol^ sabjeol
to the paUio easement of navigatioB.
60 ScHUBMEiSB V, St. Paul ETC. R. R. Co. [Afinn^
Whbbb Grahteb or Pubuc Lakd Dkdioatis It to public use in a city»
under a it&tate providing that the land so dedicated shall be held in the
oorporate name in trost, to and for the uses and parpoees set forth and
ezpreaeed or intended, he doee not thereby depriTe himself or rabeeqaeni
porchasers of the title to the land, bnt merely such estate or interest
therein as the pniposes of the trost require; and the land cannot be taken
for any other use or subjected to any greater burden or servitude than
that expressed in the dedication without compensation being made to the
owner. If an additiooal burden is imposed which works aspectal injoiy,
he has the right to have it enjoined.
Application for an injunction. Tho opinion soffioientljr
■tates the Ucts.
Mastenon and Simons^ for the appellants,
iittw, for the respondent.
By Coorty Wilson^ G. J. The laws governing the surveyB
and descriptions of the public lands, to which it is necessary
to refer in this case, are found in an act approved May 18,
1796, entitled ^' An act providing for the sale of the lands of
the United States in the territory northwest of the Ohio River,
and above the mouth of the Kentucky River," in an act
approved May 10, 1800, amendatory of the aforesaid act,
and in an act approved February 11, 1805, entitled ''An act
concerning the mode of surveying the public lands of the
United States." By these acts, it is provided that the public
lands shall be subdivided into townships of six miles square,
sections of one mile square, and quarter-sections, and that
these subdivisions shall be bounded by north and south and
east and west lines, unless where this is rendered impracti-
cable by meeting a navigable watercourse, Indian boundary
line, or the line of a tract of land before surveyed or patented.
It is also provided that the rule of bounding by north and
south and east and west lines shall be departed from no fur-
ther than such particular circumstances require. By section 2
of the act of 1805, above referred to, it is provided '' that the
boundaries and contents of the several sections and quarter-
sections of the public lands of the United States shall be asoer-
tained in conformity with the following principles: .... The
boundary lines actually run and marked in the surveys re-
turned shall be establi^ed as the proper boundary lines of the
sections or subdivisions for which they were intended, and the
length of such lines as returned shall be held and considered
as the true length thereof; and the boundary lines which shaU
not haye been actually run and marked as aforesaid shall be
JnxL, 1865.3 ScHURMEiER t^. St. Paul etc. R. R. Co. 61
aBoertained by running straight lines from the established
-oomers to the opposite corresponding comers; but in those
partions of the fractional townships where no such opposite
<x>rre8poiid]ng comers have been or can be fixed, the said
boundary lines shall be ascertained by ranning from the estab-
lished comers due north and south or east and west lines, as
ihe case may be, to the watercourse, Indian boundary line, or
'Oiher external boundary of such fractional township." The
fractional townships are to be surveyed and sold with the ad-
joming townships, and it is to be observed that in the survey
of such fractional subdivisions the lines must run to the water-
oooTse, when the township is made fractional by a watercourse,
and such watercourse is by the act designated as the external
'boundary of the fractional township. No law that we are
■avrare of in terms requires the ^* meandering " of watercourses,
Tmt the acts of Congress above referred to require the contents
-cf each subdivision to be returned to, and a plat of the land
aurveyed to be made by, the surveyor-general. This makes
necessary an accurate survey of the meanderings of the water-
^Kmrse, — that is, the boundary of a fractional subdivision, —
-and the line showing the place of the watercourse and its
fiinuoeities, courses, and distances is termed the meander line.
"The field-books, therefore, necessarily show the watercourse
to be the boundary of the tract or subdivision, and the plat
ahould, and in this case does, correspond with llie field-books.
In this case the correctness of neither could in this respect be
Hjuestioned: Bates v. lUinoia Cent, R. R. Co,^ 1 Black, 204.
In March, 1849, the United States conveyed to Roberts lot 1
in question. At and prior to that time Uie govemment plat
kept in the local land-office, which showed the boundaries and
-descriptions of the public lands, and in accordance with which
sales were made, showed no islands in the river in section 6,
4>r opposite lot 1. The river at this point is navigable in fSact,
but being above the flow of the tide it is not deemed navigable
in law. One question in the case is, whether the grant by the
.^vemment to Roberts of lot 1 conveyed to him the ^^ island,"
4o called, now claimed by the defendants.
The referee found as a matter of fact, that at the time when
ihe govemment survey of lot 1 in section 6 was made, *^ the
meander line of said lot was run along the left or northerly
iMink of a small channel or slough between said bank and the
parcel of land which is designated ^Island No. 11'; that in
very low water in the river there was no current, and very little
62 ScHUBMBiBB V. St. Paul ETC. R. R. Go. [Minn.
water, and that in pools in said channel or slough; and that
at a medium stage of water the land designated ^ Island No.
11 ' was above water, and there was a current or flow of water
through said channel or slough; and that in veiy high water
in the river the said land designated 'Island No. 11' wa»-
inundated."
The defendants' counsel claim that the meander line, and
not the river, is the boundary of said lot 1. This view is not
sustained by the entries in the field-books, by the government
plat, or by the law in accordance with which the survey and
sale were made. The entries in the field-books show that the-
line that bounds lot 1 on the north runs east until it inter-
sects the left bank of the river, at which point a poet is set,,
called a '^ meander comer"; that the line bounding said lot
on the west runs south until it intersects the left bank of the-
river, at which point, also, a meander post is set. The mean-
der line of the river between these points commences at the
first above-mentioned meander post, and runs ''thence up
stream " (the courses and distances being given) to the last-
mentioned meander post. There is no such thing as a mean-
der line in such case distinct and separate from the line of
the river. It is merely an accurate survey of the river, and
neither party in this case could be permitted to show that the-
river is in a different place from that designated by the field-
book and plat: See Bates v. lU. Cent. R. R. Co.^ 1 Black, 201.
The plat shows the river as the boundary, and the law, as we*
have above seen, requires the boundary lines of such lot on
the other two sides to run to the river, and designates the river
as the boundary of the third side.
We think, therefore, that it is too clear to admit of a rea-
sonable doubt that the river bounds this lot on one side. But
this being admitted, the further question is presented, whether
the riparian owner takes to high-water or low-water mark, or
to the middle thread of the stream. At common law, grants-
of land bounded on rivers above tide- water carry the exclu-
sive right and title of the grantee to the middle thread of the
stream, unless an intention on the part of the grantor to stop
at the edge or margin is in some manner clearly indicated;,
except that rivers navigable in fact are public highways, and
the riparian proprietor holds subject to the public easement
In this case no intention is in any way indicated to limit the
grant to the water's edge, and if the common-law rule prevails*
here, Roberts, by his purchase, took to the center of the river^
Jan. 1865.] Schubmsieb v. St. Paul etc. R. R. Ca 63
meltiding the land subsequently surveyed by the govenunent,
— called "Island Na 11/' — and which is now claimed by the
defendants. The common law of England, so far as it is ap-
plicable to our situation and govemmentSy is the law of this
country in all cases in which it has not been altered or re-
jected by statute, or varied by local usage under the sanction
of judicial decisions: 2 Kent's Com. 27, 28.
We think, in respect to the rights of riparian owners, it U
as applicable to the circumstances of the people in this country
as in England. It is not true in fact, as has been alleged,
that the navigability in fact of a river above the flowing of
the tide is a state of things unknown to or unprovided for by
it: See Hale, treatise De Jure Maris, etc., pt. 1, c. 8. In its
application to cases like the one under consideration it has
not been varied or rcgected in this state, and the few states of
the Union that have repudiated it are exceptions to the gen-
eral rule: Jones v. Soulardy 24 How. 41, and cases cited in
brief of oounsel of defendant in error; Oavit v. Chambers^ 8
Ohio, 496; MiddUUm v. Pritchard, 3 Scam. 510 [38 Am. Dec.
112]; Ex parte Jewnings^ 6 Cow. 518, and note; Palmer v. Mvlr
Uganj 3 Gaines, 318, and note [2 Am. Dec. 270]; 3 Kent's
Com. 427 et seq., and cases cited in note; 2 Smith's Lead. Gas.
217-227; Angell on Watercourses, c. 1, and cases cited; 2
Washburn on Real Property, 632, and notes.
Some — we believe most — of the authorities that deny that
the riparian proprietor owns to the middle thread of the stream
hold that he takes to the low-water mark: See Halsey v. Mc-
Cormieij 18 N. Y. 296; Morgan v. Readingj 8 Smedes & M.
866; ChUd v. Starr, 4 Hill, 869; Blanchard v. PorUr, 11 Ohio,
138; 2 Smith's Lead. Gas. 224-226, and cases cited. This,
we think, would include the land claimed by the defendant,
and designated "Island No. 11.'' We hold, therefore, that by
the patent to Roberts the United States conveyed to him said
^ island."
We think no reason can be given why the same rule should
not *pply to grants made by the government that are applica-
ble to grants made by individuals. Section 9 of the act of
Congre^Sy first above cited, provides that all navigable rivers
within the territory to be disposed of by virtue of that act
shall be deemed "to be and remain public highways." At
common law, rivers navigable in fact are public highways,
and the riparian owner holds subject to the public easement.
This act of Congress, therefore, is merely a declaration or
64 ScHURMEiEB V. St. Paul ETC. R. R. Co. [Uinn.
affirmance of the common law, and not a modification of it.
The fact that these rivers are and mnst remain public high-
ways is not at all inconsistent with the view that riparian
owners have the fee of the bed of the stream: Peck v. Smithy 1
Conn. 133 [6 Am. Dec. 216].
The defendants' counsel argues that even if Roberts by his
purchase from the government became the owner, he after-
wards by the record of his plat parted with the fee of that
portion laid out into streets and landing, and that by section
7 of chapter 1 of the laws of the extra session of 1857 the
legislature authorized the use of said streets by the railroad
company. The statute of Wisconsin under which the plat of
this portion of St. Paul was recorded reads as follows: ''When
the plat or maps shall have been made out and certified, ab-
knowledged and recorded, as required by this act, every do-
nation or grant to the public, or any individual, religious
society, or any corporation or body politic, marked or noted
as such on said plat or map, shall be deemed in law and in
equity a sufficient conveyance to vest the fee-simple of all such
parcels as therein expressed, and shall be considered to all
intents and purposes a general warranty against such donors,
their heirs and representatives, to the said donee or grantee for
his use, for the uses and purposes therein named, expressed,
and intended, and for no other use and purpose whatever; and
the land intended to be for the streets, allejrs, wajrs, commons,
or other public uses, in any town or city, or addition thereto,
shall be held in the corporate name thereof in trust to and for
the uses and purposes set forth and expressed or intended."
A dedication is not a grant or donation. Its effect is not to
deprive a party of title to his land, but to estop him, while
the dedication continues in force, from asserting a right of
possession inconsistent with the uses and purposes for which
it was made: Hunter v. Sandy Hilly 6 Hill, 407; Cindnnaii
V. Whiie^ 6 Pet. 432-438. If, therefore, the corporate authori-
ties of the town of St. Paul acquired the fee-simple of the
land over which the streets are laid, it must have been by
virtue of the statutory provisions above cited. But we think
an examination of the statute will not lead to the conclusion
that it operated as a conveyance of the coniplctc title.
The first clause of the section refers to '' donations or grants
marked or noted as such in the plat," and, we think, has no
reference to the land to be used for streets, landing, etc. As
to the lands marked on the plat as granted or donated, the
Jan. 1865.] Sghubmkixb v. 8t. Paul etc. R. R. C!o. 66
Btatate declares that this shall be deemed in law and in
equity a sufficient conveyance to vest the fee-simple; but as
to the lands intended for streets and alleys, the language is
not that a fee-simple shall pass, but that it " shall be held in
the corporate name in trust to and for the uses and purposes
expressed or intended." The change of phraseology is quite
significant In the latter case we think it is manifest that
the intention of the statute was, not to pass the fee-simple,
but merely such an estate or interest as the purposes of the
trust required. The use for which the dedication was made
therefore determines the extent of the right parted with by
the owner and acquired by the public or corporate authorities
of the town. Neither the use for which the dedication was
made, nor the language of the statute, justifies, in this case,
the conclusion that a legislative transfer of the fee was in-
tended, and without such transfer it remains in Roberts and
his grantees: 2 Smith's Lead. Gas. 216.
The plaintiff* therefore, as grantee of Roberts, had an inter-
est and property in the streets and landing opposite lots 11 and
12, which could not, without compensation, be taken for public
use or subjected to any greater burden or servitude than was ex-
pressed or intended by the dedication under said statute. The
use of the streets and landing by the railroad company for a
railroad track is, manifestly, not such a use as the dedication
or statute contemplated or authorized, and we think it admits
of much doubt whether the legislature intended to give the de-
fendants such a license. The authorization by the legislature
of such use would be an interference with the reserved rights
of the plaintiff*, and an attempt to authorize the taking of
private property for public uses without compensation: See
Redfield on Railways, 2d ed., 158-165, sec. 14, and notes, and
cases cited in notes; WHUams v. New York Cent. R. R. Co.,
16 N. Y. 97 [69 Am. Dec. 651]; Tate v. Ohio & IRm. R. B.,
7 Ind. 479; Haynes v. Thomas, 7 Id. 88.
But even if it was held that by the record of the plat the
corporate authorities of the town of St Paul acquired a com-
plete title to the land over which the streets and landing are
laid, it cannot be doubted but that the transfer was made to
them on the consideration and express condition that the land
should be used for and as streets and landing only, for the
use and benefit of the public generally, and particularly for
the use and benefit of the owners of adjacent lots. If by this
act of the legislature the town authorities aoquired the stieeti
AM. Dsa Vol UODCVm-S
ScHUBMEiBR V. St. Paul xtc. R. R. Co. [Minn.
and landing for the public use, by the same act they were
bonnd to dedicate and hold them Bolely to and for the U8e»
expressed. The original donor gave the property, and every
subsequent purchaser of the lots fronting on the streets or
landing purchased on the condition and with the understand-
ing and implied agreement that the streets and landing
should forever be kept open fiir his use, benefit, and enjoy-
ment. This gave to the adjaoent lots their principal value*
It would therefore seem that the original owner and subse-
quent purchasers obtained a property and vested right in the
streets and landing: See Tate v. Ohio and Misriarippi R. 22.,
and Haynes v. ThomoBj tupra. If this is so^ then the plainest
dictates of justice, as well as the express provisions of our con-
stitution, would require that the property should not be taken
or injuriously aflfected without compensation. The railroad
company having no legal authority to obstruct the streets or
landing, and such obstruction being a special injury to the
plaintiff, we think he has a right to the relief prayed finr.
We thii^ the conclusions of the referee in the case are coiTeoty
and that the judgment below should be affirmed.
Bebby, J. I agree with the following conclusions arrived
at in the foregoing opinion: 1. That lot No. 1 extended to the
water's edge at low-water mark, including the parcel of land
designated as "Island No. 11''; 2. That the landing extended
to the same line; 3. That Schurmeier, by his purchase of lota
11 and 12 as platted, acquired at least an easement in th»
landing, which could not be impaired for public use without
compensation; 4. That the corporate authorities of St. Paul
acquired by Uie plat and the recording thereof, not the fee of
the landing, but only such estate or interest as was necessary
to support the uses and trusts for which they held it; 5. Thai
the raUroad structures, etc., complained of, are an obstruction
to the free use and enjoyment of the easement aforesaid, and
constitute a private nuisance as respects Schurmeier, entitling
him to an injunction. As to the ottier conclusions arrived at,
I express no opinion, but concur in the dispodtion made of
the case.
Map avd Bubvr; OoyoLUMVJuiEaB ot: 8ae yiemmm ▼. FoUer, Si Am.
DecSS.
KnriB AS BouinuBTy whm will prevail ov«r marked linea; Lfiielv. illinii
82 Am. Deo. S71» and note; aee alao JTammhi v. t^otierp Si Id. 96^
and JMhi ▼. €Umn, S6 M. ISBL
Jan. 1865.] Schubmbub v. St. Paul btc. R. R. Co. 07
liBAinMBSBD IjIhk IN PuHjo SuBVXi mil along the maigin «l a
lor 41m purpose of aaoorteiaii^ the qaxatity of land ia no* * bonndaiys iOil-
Afeit T. FfUdutrd, 88 Am. Dec lllC ^id aofea.
CtauBT ov Laitd Bomrmo) bt MnBiaaim Rnrsa abofe tide- water extanda
to the middle of the straem, and indndea interraning iabnda: MRUkkm ▼.
PrUekcaxl, 38 Am. Dec 112, and note; aee alao MeChiikmffk ▼. WaH 68 Id.
712; Paml ▼. Otarvar, 67 Id. 413, and notea to theie caaea.
DnncAnoN to Pubuo Usidoea not operate aa a grants Irataa an eatoppal
mpoic* Rive$Y. DmU^, ffJ Am. Deo. 231; CUif <^ IhAmg^ v, JfaloiMy, 74 Id.
868, and notea to theae caaea. Dedication doaa not neoeanrily cany the fee
with it: Dummer ada. Seleetmmtic, 40 Id. 218L
Oqbbhhai. OwiisB cm Lahd "DmaoMXMD to Pdbuq Un nay maintani an
actioo against one who impoeea an additional aarvitnde npon the land: Oar^
^ Thdaie, 60 Am. Dec 4079 and note 42S2; 428; and the VgiriatBTe
apply to a difTerent pmpoae land ao dadieatedt Xe Olveg ▼. OolUpoHa^
S8Id. 641, and note 644.
Thx tsihgipal GAn WAS flARiKm> BT WBIT 07 BUKiB to the aaprBMa
ooort of the United Statea, wheve the deciainn of the atate oout waa afllnnedi
RaOnod OtK ▼. Sthui'tnekr, 7 WalL 272.
Uhpxb Statutobt Dxdigaxioh 09 Lahd vo Pubuo Uaa the lee doea not
paoa, bat only each eatate or intereat aa ihe pnipoaea and intention of the
dedication reqnirea: OAjy qf Whiona ▼. B^f, 11 Minn. 186, 186; VUlage qf
Mamkato t. WtBard^ 18 Id. 18; and altlioii{^ the owner cannot aaaart any
light inoonaiafcent with the dedication, atOl he may recoTer wben additional
bordena are impoeed: Village qf Mankaio ▼. Jfeti^^^, li Id. ?' .. The
legialatare cannot appropriate Ihe property dedicated (in tina caae a atreet),
to any other nae than that intended, or anbject the land to any additional
aervitade without compenaation to the owner of the lee The nae of the
atreet for railroad pnrpoaea ia anoh additional aenritade: Harrmgttm ▼. SL
Pamieic R, R. Co., 17 Id. 224^ 230; 6^y. Fint Dh. qfSL PmUete. R. R.
Ox, 13 Id. 318; BrUbbie ▼. 8L Paid ele. R. R. C7c, 23 Id. 130; Cartt v. StOl-
waier St. B^yetc Co., 28 Id. 376; and entitlea the owner to an injunction:
Hcurimgton t. St. Paul de. R. R. Co., 17 Id. 226^ all citing the principal
RiFABTAN OwHBR OT Labd Bobdbbdio OiV BnTBB takea the fee to low-
water mark, and the title in the bed of the atream to the middle thereof
aabject only to the pnMio eaaomeirt of ni^jgation. He therefore haa the right
to enjjOy free oenmninication between faja abntting premiaaaand the navigable
channel of the riTer, and to build and maintain aoitable landinga, piera, and
idiarrea, on and in front of hia land, and may extend the aame into the
atream to tiie point of navigability beyond low-water mark: OnUtn Depot afe.
Co. r. Brunnoiek, 31 liinn. 301; BriOdm ▼. St. Pa^ eie. R. R. Co., 2Z l±
180. The princ^^ caae ia cited in the abore caaea.
liiAirpBa LiKBg uf QoYMBjnaaKT BvwiHYiaovB, bordetxng on navigable
mean, do not limit the grant in a patent: St Paulete. R. R. Co. t. Ftnt Dkk
qfSL Panleic R. R. Co., 26 Minn. 83, dting the principal caae.
Tbb FBmoiPAL 0A8B 18 oiTBD in DowBon T. St Paid etc. Ine. Oo,, 16 Minn.
186^ where it ia held that an injnnotioa wiD not be cpnnted at the aoit of a
frivade party to prevent cr ranove obatmotiona in a atreet^ when it ia not
that anoh paaaoa anfei^ or im [apt to aofliBr, any apeoial or peooliav
68 Starbuck v. Dunxlss. [Miiin.
OwvsB OT LAin> Who DsDnum It lor itraet pnxposet reteinfl the Im
thwein and all other rights not moanaistent with poxpoBaa for whidi Ihm
dedication was made^ and all the title aad rigjita whioh he pMseawi paaa to
sabaeqiient puohaaeni from hims ITifder ▼• De Chm, 26 Minn, l^ citing tbt
pfino^^
Stabbuok v. Dunkleb.
110 MnrraMTA, Ml]
Appial Ijbs ibom Obdir fi^RZXZHO OOT oertain portiona of detadiBi^
anawer, when the order inToLvea the merita of the aotioiL
All Osdxbb ICadk n Fbogrbss of Causb inTolTe the merita of the aetioa
and are appealable, except thoae relating merely to matten reeting m
tiie diacretion of the coort, or to qneationa of practice.
Ih Acnoif VDB Bbsaoh ot Ooiraiuer, admitted by defendant to be in foil
force, aad to contain an agreed price for certain apedfied aerrioeB to be
rendered by him, an allegation in hia anawer aa to the vakie of Mrvioea
rendered ia immaterial, and ahoold be stricken oat.
Iv Aonoir poa Bbxaoh or Ck>HTBACr for transporting cord-wood, if defend-
ant admita that he receired and transported a large quantity of anoii
wood, a denial that ho haa any knowledge or information whether the
quantity of wood was aa stated in the complaint or otherwise is bad, un-
less some special reaaon is giTcn why he did not know.
OnriRAL DxNiAL KUflTT BB Dbtinztb and positive; it mnst deny what ia not
admitted.
Dbbial of Eaok ahd Bvbbt Allboatioh Of OoKPLADiT, ezospi what tbt
court may ocnatrae to be admitted in tiie forcgaing part of tlie aaawes^
ia both indefinite and vnoertain*
Thb opinion contains the faots.
Proton, for the appellant.
Lamprey y for the respondent.
By Court, Bsbby, J. This is an appeal fix>m an order strik*
ii:^ out certain portions of the defendant's answer. A pre-
liminary motion was made to dismiss the appeal, on the ground
that it does not lie from an order of this character. The
motion must be denied.
Subdivision 3, section 1, page 183, laws 1861, giTOS a right
of appeal '^fix>m an order involving the merits of the action or
some parts thereof." The order striking out determines that
certain portions of the defense set up are insufficient as stated.
If what was stricken out constituted a meritorious defense and
was necessary to be pleaded, then the effect of the order would
be to deprive the defendant of the right to put it in evidence.
An order which may have this effect clearly goes to the merits
Jan. 1865.] Starbuck v. Duuxlib.
of the actkm or some parts fhereol It is held in New York
that all orders made in the progress of a oanse involve the
merits of the action, except such as relate meielj to matters
resting in the discretion of the court or to questions of practice:
Crager y. DimglaSj 2 Ciode R. 128; 8t. John y. Wut^ 4 How. Pr.
331; TaUman y. Hinmanj 10 Id. 90; Burhan$ y. TibbUU, 7 Id.
78; see also TnuUes Pen Yan v. For&M, 8 Id. 286; Whitney
y. Waiermanj 4 Id. 814.
On the merits, we think it obvious that the all^ation as to
the value of the services rendered was properlj stricken out
The defendant claims to repudiate the contract on which this
action is brought, on the ground that the fifth day of Decem-
ber, 1863, when it was executed, was Sunday. Taking judicial
notice of the calendar, we find it to have been Saturday. As
the defendant makes no other objection to the validity of the
contract, and as this is an action for damages arising firom
an alleged breach, it needs no argument to show that having
admitted the contract to be in full force, and that contract
containing an agreed price for certain specified services to be
rendered by the defendant, it is entirely immaterial whether
the services which he actually performed under the contract
were worth more or less than that agreed price. As to the
portion secondly stricken out, the defendant admits that he
received a large quantity of cord- wood, property of the plaintiff,
and delivered it at St. Paul pursuant to the contract; but he
adds that he has no knowledge or information sufficient to
fixrm a belief whether the quantity of said wood was as stated
in the complaint or otherwise.
This mode of denial is plainly objectionable. As the learned
judge of the court below observes: '^The defendant is presumed
to have some knowledge, etc., as to the quantity of wood
actually transported by himself. It was a large quantity, he
alleges before, but he does not know in this part of his answer
whether it was 290^ or otherwise." If there were any special
reasons why he did not know, he should have stated them or
shown them in justification of his answer: See Riehardean v.
Wikonj 4 Sand. 709. The last denial is also clearly bad. If
a defendant chooses to adopt this general form of denial, he
must still be definite and positive; he must deny what he has
not admitted. A denial of each and every allegation of the
complaint, except what the court may cons^e to be admitted
in the foregoing part of his answer, is both indefinite and un<
certain. A truthful denial implies that he knows precisely
70 Stats v. Shirpby. [Mimk
what he is denying. How can he know beforehand what ooe^
gtniction will be pat upon hie pleading by the court?
The order is aflbrmed, and the action remanded.
What Obdsbs abm Appbalabu: See PiwcliwyT. Hemuffcm, 49 Am. Dm.
602; Endnote.
DxHiAL OF Facts Pbimumptivily withut DsrsNnAMT'B KxrowLioeB imui
be in poeitiTe form: Smrngph-ei^ ▼. MtOaUf 70 Am, Deo. 621» end ezttndad
note 625 et aeq.
Puas iHArpuoABLB Oft iMBomoDDiT nuif be strioinA out: Smifhtd ▼•
Wklppk, 6i Am. Deo. 4Mi note to Peogpfe y. JlbOMNfiflr* 72 IcL 621.
Denial^ wmnr mna mm Fusmva; Bee note to Hmmfknif$T. JfigCUl 711
Am-DeoueaS.
StATB V. SmPFHT.
p^ lomnBOf A, Ml J
Mvaraa is Puisimsp iboh DsfiisiaAani and intanttonal
SusHiuioir ov StrahoibSv Appa]u»t MiLAircH0Lr» and peooluunilas of de>
portment generally are not proof of inaaaity.
Pastt Indxctsd loa Mubdib is kot Emttflmd to Aoquitval on groond of
iaaanily, if at the time of the alleged ofibue he had iuffloient oapaet^to
enalde him to diatingniah between ri^^t and wiongt to nndecatand the
nataie and oonaeqnenoea of hia aot^ and had mental power snfficiflnt to
apply that knowledge to hia own oaae.
DiBiGNiD KxLUNo OV Anovbib wh'uout FkOfOQAsnxi'f and not in widdM
oombttt^ iinene the leeamnrderbeeaoM the pet* potistor of tiwctiineia
in n state of pawfam.
SkaaPAss IB Hov Buaa Provoqatiov aa antiilea one to nae n deadly wei^oi^
nor ia it sach aa to reduoe a killing below murder.
Tbbowinq ov 8tigk or Club bt Dbgbasbd at defendant without ita hittiag
him, and before the fatal ahot was fired, ia not each ptovooation as wifl
rednoe a hoadetde frmn raoider to mandanghter.
IsstULUMiMT OB Wbapon wtTH WiDOH HomomB WAS OoioiinsD must bs
taken into oonaideration to determine on the snffioienqr of the provooa-
tion to reduce the killing from mnrder to manalan^ter. If itwaaefieoted
with a deadly weapon, the provocation muat be great to lower the gmde
of crime from murder. If with an inatroment not likely or intended to
prodnoe death, a less degree of provooation will be anffioienti
Wbbbb Bbvbhob 18 DiBFBOFOBnoNATB TO Injubt Bbgxivbd^ and ta oat>
rageooa and barbanraa, the injury ia no provocation to rednoe the orime
oommitted.
SBur-DxnDffSB oah bb Bbbobtbd to in ease of neoeaaity, and doss noSariao
nntil an aStempt haa been made to avoid such iiaoeaiity.
Bbubv ov KBOBBsnnr to Act nr Sbuwdbibiisb will not wansnt nwdiot of
aoquittal on the ohaxge of mnrder. Such belief would perfai^ rednoe
Hie orime to mandan^ter.
ObabgbwiUi bb PBvmBDTOBB FouL and ooneotinevecy
SBoSftadtSk
Jan. 186S.] State v. Shippst. 71
EC Yi Tebmisi jb DjEimiuvi^ and noi m Ukudf, aa^ and
malt not exoeed the boondB of mora defantu and pverentioiL To jnrtify
H, tfajora nmit be at least an apparent neoeiaity to ward ofl^ by loroi^
acme bodily hann.
Faxrr Who wob hot Rrbsat ob Attucftto Sbuit m oombati Imt cnton
umeoeanrily into it^ doos not act m aeU-dofiBnas.
ouranniNi AanRAcr PBoronTioN, hsving nothiqg to do with the
IB not enffieient to rerene a Judgment.
OuncBoa tbit LnnoimHT was hot Sigvxd by the foramen of the grand
jiuy, if not taken by motion to eet it aeide^ or by demaner, is waifed»
■bd when w«md» >newtgieleannotbegmitodeneMhgwmnd>
The opinioii ooataixis the fistcta.
Wihon and MeNairj for the appellant
C<A$j aUom0y-f&Mfal^ tor the raqpondent
By Goorti Wilsov, C. J. The deftodant appliee to tfaie
court for a new trial under eection 6, page 777, ef the Com-
piled Statatee.
The grounds <tf the molkm aie: 1. That the Tordiet is not
warranted by the evidenoe; 2. Error in the charge of the
court; 8. That the indictment was not signed by the foreman
of the grand jury. I cannot say thai the cadence did not
warrant the verdict
It clearly Kppe/em that defendant deliberatdy and inten-
tionally shot the deceased, and from this the presumption is
that it was an act of muidev: Ccfmmwnmatth y. Ycrh^ 9 Met.
93 [43 Am. Dec. 373]. This presumption it was for the de-
fendant to rebut I think it Twy clear that the evidence
would not have justified the jury in acquitting the defimdant
on the ground of insanity. His suspicion of strangers, ap-
parent melancholy, and peculiarity of deportment generally
are not proof of insanity, as that term is popularly under-
stood. Perhaps by theorists these peculiarities may be con-
sidered evidences of insanity. It is, indeed, very difficult to
define that invisible line that divides insanity from sanity,
but such speculation is not here necessary; for a party in-
dicted is not entitled to an acquittal on the ground of insanity
if at the time of the alleged offense he had capacity sufficient
to enable him to distinguish between right and wrong, and un-
derstood the nature and consequences of his act, and had
mental power sufficient to apply that knowledge to his own
case: Cimmmw^akh v. Sag$TSj 7 Met 600 [41 Am. Dec. 468].
I think the evidence does not show insanity of any grade;
certainly it falls for short of showing such insanity as wouU
be a proper ground of defonse according to this rale.
72 State v. Shippey. [Minn
Bat the defendanfs counsel insiflty that thongh insanity was
not proven, "that the circnmstanoes of provocation were such
as should have convinced the jury that the defendant either
imagined he was necessarily acting in self-defense, or that his
blood was so heated as to take the case out of the degree of
crime found in the verdict." Under our statute the killing of
a human being in the heat of passion upon sudden provoca-
tion, or in sudden combat intentionally, is manslaughter, not
murder. It was for the jury to say whether the homicide in
this case was committed under such circumstances, and by
their verdict they have negatived that hypothesis; and in this
respect, too, I think their verdict is justified by the evidence.
The designed killing of another without provocation^ and not
in sudden combat, is none the less murder because ibe perpe-
trator of the crime is in a state of passion: Peofte v. SvlUvan^
7 N. Y. 899; Penntylvania v. JSell, Addis. 156 [1 Am. Deo.
298]; Pennsylvania v. Haneyman^ Id. 147; State v. Johneon^ 1
Ired. 854 [85 Am. Dec. 742]; Preeton v. State, 25 Miss. 883;
Campbell v. State^ 28 Ala. 44. And where there are both
provocation and passion, the provocation must be suflScient:
See cases last cited.
The circumstances of provocation proven in this case were
not sufficient to extenuate the guilt of the homicide or reduce
the crime to the grade of manslaughter. The provocation given
by the deceased in trespassing on defendant's land is not such
as would provoke any person not wholly regardless of human
life to use a deadly weapon. Nor is it such as the law will
recognize as sufficient to reduce the killing below murder:
ComfMmwealth v. Drew, 4 Mass. 396; Beauchamp v. State, 6
Blackf. 299; SuUe v. Morgan, 3 Ired. 186 [38 Am. Dec. 714] ;
Monroe v. State, 5 Ga. 85; 1 Archb. Crim. Pr. & PL, 7th ed.,
808-810. Without further provocation than this, so far as
the evidence shows, the defendant took his gun and followed
deceased, with the apparent purpose of shooting him or his
companion. It is true that before the prisoner shot deceased
the deceased threw at him (but did not hit him with) a stick
or club; but I think that this could not be considered such
provocation as the law looks upon as an alleviation of the
homicide from murder to manslaughter. There is a wanton
disregard of human life and social duty in taking or endeavor-
ing to take the life of a fellow-being, in order to save ourself
from a comparatively slight wrong, which the law abhors.
To determine on the sufficiency of the provocation to mitigate
Jan. 1865.] State v. Shippst. ' 78
ihe killing from murder to manfilaaghteri fhe instrament or
weapon with whioh Ihe homicide was effected must be taken
into consideration; for if it was effected with a deadly weapon^
the provocation mxust be great, indeed, to lower the grade of
the crime from murder; if with a weapon or other means not
likely or intended to produce death, a less degree of provo-
cation will be sufficient; in &ct, '' the instrument employed
must bear a reasonable proportion to the provocation to reduce
the offense to manslaughter": Wharton's Crim. Law, 2d ed.,
368, 869, and cases cited in notes; see also 7 Archb. Crim. Pr.
A PL, 7th ed., 808, 804, 808-810, 816, 821, and cases dted
in the notes; ComfnonweaUh v. Modefj 4 Pa. St. 264; Regina
V. SmUhj 8 Car. A P. 160.
The revenge in this case was disproportionate to the injury,
and outrageous and barbarous in ite nature, and therefore
cannot in any legal sense be said to haye been provoked by
the acts of the deceased. The fsu^ts in this case incontroverti-
bly show that the prisoner did not act, and could not have
sniqposed it necessary to act, in self-defense. He was the pur-
suer, not the pursued. Self-defense can only be resorted to
in case of necessity. The right to defend himself would not
arise until defendant had at least attempted to avoid the
necessity of such defense: People v. SuUivanj 7 N. Y. 399;
Wharton's Crim. Law, 886; Segina v. Smithy 8 Car. & P. 160.
The defendant's counsel asked the court to charge the jury,
''that if the jury believe that the prisoner at the time of the
killing believed in the existence of a state of facts which if
true would have constituted self-defense, they must find a
▼erdict of acquittal," which the court refused, but charged
the jury that " the facts must be such as reasonably to have
raised such belief or apprehension on the part of the defend-
ant." The court was correct in refusing to charge as thus re-
quested. The mere fact that defendant believed it necessary
for him to act in self-defense would not warrant a '' verdict of
acquittal"
It is not enough tiiat the party believed himself in danger,
unless the foots and circumstances were such that the jury
can say he had reasonable grounds for his belief: Comp.
Stats., p. 708, sec. 6; ShcrUr v. People, 2 N. Y. 198 [51 Am.
Dec. 286]; Wharton's Crim. Law, 886; Archb. Crim. Pr. A
PL 798; Untied States v. Vigdj 2 Dall. 846. In Tennessee, I
believe, it has been held otherwise: Orainger v. State^ 5 Yerg.
459 [26 Am. Deo. 278]; but I think this decision stands alone,
74 Statb v. Suippst. [Minn.
unsupported by either prineiple or authority. Such belief
would perhajw reduce the crime to manalaughteri but whether
it would or not it is not necessary to decide in this case.
The only exception taken to the charge of the court is above
given, and we must therefore presume that in every other
respect it was fiill and correct. But even if the charge in this
respect had been erroneous, it would not be a good ground for
reversal of the judgment. Self-defense ex vi termini is a de-
fensive, not an offmsive, act, and must not exceed the bounds
of mere defense and prevention. To justify such act there
must be at least an apparent necessity to ward off by force
some bodily harm.
Where the party has not retreated from or attempted to
shun the combat, but has, as in this case, unnecessarily en-
toed into it, his act is not one of self-defense. The plaintiff,
by taking his gun and following after the deceased, without
any previous provocation (such as the law will recogniie as
provocation for the use of a deadly weapon), showed conclu-
sively that the homicide was not committed in self-defense,
real or imaginary. The evidence therefore did not make a
case for laying down the law of self-defense, and an error of
the court concerning an abstract proposition, having nothing
to do with the matter in hand, is not sufficient ground for re-
versing a judgment: Shorter v. People, 2 N. Y. 202 [&1 Am.
Dec. 286].
The other ground on which defendant's counsel ask a new
trial is, that the indictment was not signed by the foreiten ci
the grand jury. Whether the signature by the foiMctan on
the back of the indictment was sufficient, it is not necessary
for us now to decide. This objection, not having been taken
by motion to set aside the indictment or by demurrer, was
waived: Comp. Stat., p. 764, sec. 2, and p. 766, sec. 11. I
have felt in the examination of this case a great anxiety to
discover some legal ground on which to grant the defendant
a new trial, but governed as the court is and ought to be
strictly by the rules of law, I have failed to see any ground
for such action. It is for us to declare the law, and if Ais is
a case in which it should not be rigorously enforced, the state
«xecutive only can apply the remedy.
New trial denied.
Mauck 18 Implied in Etsbt Dkubeuatb aad intoiitiQaal hmwwndei
OommmnocaUk ▼. Wetmler, 52 Am. Deo. 711, and aoto 736; CommommaMk t.
Tcrk^ 43 Id. 373, and note 395. A murder U preramed to have been intea-
Jan. 1866.] State v. Shippby. 75
'tionally and malicsioiiBly done with a prwneditoitod ^^^g*
psnied by any dreamstaiioei of eztemiatioa cr explnnttiwi; Ante ▼.
jdtfager, 22 Minn. 024^ Mnrder is prwiuned irom aa intentiaBal aad
^diborate KcmimdB: Stai€ ▼. Batduu 84 Id. 4SSb botii oitinff ths nrinelDal
LraAHRT A8 Derhbbto Obucb, wba* degree eonetitvtee; Affpi ▼. Pwjpk^
^ Am. I>ec231; SoMyt. CbmiwoiripeB/itil, 83 Id. 461, end notee to iheee cegee.
Defendant is not entitled to aoqaittal on the groond of inaanity, if »t the
-time he committed the crime he had anffioiflnt capaiCt^ to diatingniah between
ri£^ and wrooj^ and ondentood the natore and oonaeqnenoea of hia aeta»
and had sufficient mental power to i^ly aoeh knowledge to hia own oaae:
<Aa«BY. Qmt^ 13 Minn. 360, citing tiie principal caae.
Momra ov KxLLoro BsnutSD to Pkstxoob Maliqb rather than imme-
diato provocation, wfaaa: See SiaM ▼. Jokmmt 64 Am. Deou 682; and note
686; JfeCbTT. AMU^ 73 Id. 620i
TEORAfla WILL NOT JmrxTT Un or Diadlt Wbamiv, and a hoMJdde
in inch caae ia mnrder: BtiberU ▼. 8taU^ 66 Am. Dec 07; iiToist ▼. Steta^ 68
Id. 711, endnote; Harrkfm ▼. SUO^, 60 Id. 46a
HoMioEDB ATiBiBDnD TO BxvBffoi^ and ponjahed as nnirder» wfaaas See
iTotdbatT. StOk^ 71 Am. Dec 166, and note.
What is BsAflOir able Pbovooatioh aoffident to redooe hondoida to flaa-
alaagliter: Mahkr y. PwpU, 81 Am. Deo. 781, and note 701.
To JjnFnwY HoaaoiDa ox Gbouhd of aelf -def enae there mnat eziat a prea-
entneoeaaity: Ewrriaom r. SiaU, eO Am, Dec 460. And an attempt nmat be
made to avoid the neceaaity: State ▼. 7%fmpeon, 74 Id. 342. See thia latter
•eiee and note aa to when aeU-defenae will jnatify homiddc See alao Dafai
▼. StaUt 71 Id. 370, endnote; Weii^Y. Stated 76 Id. 62; and note
Maaa Viab, kmaammamt <» Bum; tlioiii^ aincere^ will not jnatify a
killing when tiie danger ia not nzgeat: Wedeif ▼. Btads, 76 Am. Dec 6S^ and
note 60. Bat a well-gronnded belief of danger jnatifiea the plea of aelf -de*
ienae: CfampbeUY. Ptapk, 61 Id. 48; aad note 68L
TBiff Pao!nB LrecxncnoxB wnu Gimr will be aaanmeds BIdmtparksr
T. Afaleafpapfcr, 88 Am. Dec 627, and note 634.
BaaoHiom ABSZEicr ImEBiroinnr la not gronad of reYcnal: AHkmr ▼.
^iroacfnaas^ 87 Am. Dec 707; PcHar ▼• Wcode^ 9^ Id. 163; nnleaa misleadings
Teybr ▼. Mcrrimm^ 62 Id. 747.
QBjaonoH to Ihtooi'mmit nmat be taken by demnrrer: JTeSmM^T. StaH^
40 Am. Dec 166; and after ▼erdiet it ia too late: CSoMwr ▼. iStafi^ 71 U. 184.
. T6 DRauan Sumannior ov PaoTOOAXKni to redooe the kiUing from
mnrder, the inatmment with which the homicide waa committed mnat be
-eonaidered; if effMted with a deadly weepoa, the prowooatien nmat be great
to rednce tiie degree of crime: State ▼. Wood, 13 Minn. 148^ citing the prin-
Tkihohy OnaBaD to Show that at the time of the homicide the defend-
■ant reaaonahly believed that deceaaed intended to kill him or to inflict great
bodily harm ahoold be admitted: BkOe ▼. Dee, 14 Minn. 41, citing the prin-
To OoaitRirtB 8ai#«Miaan; the par^ coaimittmg the homieide mnat
tiwt he attempted to eao^^ cr afaoa tiie combat» Qalaai prevented by
ia^edhnent cr by the fieroeneaa of the aaaaalt: 8ta$e ▼. Soreimmf 19
Jfinn. 121, citing the principal
76 Tapley v. Tapley. [Minzw
Mam KAi Ko Bigbt to Oommit Amault with intent to do great bodily^
barm for a wraog which he cannot reasonably expect to be dangerooa to him-
•ellt AMe ▼. Tripp^ 24 Minn. 26^ citing the principal caae.
Faoxb TnroiKO to Quauiy or Paluati an intentional kining mnst be-
AimtA0*a»A \jj erideooe on the part of defendant if they do not appear from,
•vidoioe prodneed by tlie atate. Th^ nniat not be aaramed by the jary
wiihoat evidenoe: iSltafe ▼. HmUeiff 84 Minn. 488^ citing the principal
Tapley v. Taplht.
110 HnnwaoTA, 4I8l1
OBjaomnr to Lboal GAPAOurr of a manned woman to am nost be
by denmrrer or anewer or it is waived, and a motion to diamiaa tim aotio»
on snch gcoond is not in order at any stage of the trial, and ahoold be
denied.
Mods or ExAiONAnoN ov Wmnas allowed by lower court will not bo criti-
deed or reviewed unless it is apparent that some gross iignstioe zeaolted
therefrom.
Obaktu Who Taku Lavd nr Patmiht of a precedent debt^ and with foil
knowledge of the circnmatances nnder which his grantor aoqnired titles
takes it subject to all the equities which existed against it in the hands
of the grantor.
LnrsBa Written bt Partiis to the action, and relating to the rm ffukB,
are admissible in evidence.
Dkkd or Marrtkt) Woican u VomASLX roB DuRRsa^ whan eieenled nnder
threats by the husband of separation or abusive treatment^ if the exoen-
tion of tiie deed was induced by a reasonable apprehenaion that tlio
threats would be carried into execution.
Action by Mrs. Tapley against her husband, O. W. Tapley,
M. O. Walker, S. S. Garll, and R. Buck, to set aside deed»
made by Tapley and wife to Buck and Carll, under fSocta
stated in the opinion; and also to set aside a deed made bj
Carll to Walker, without any consideration, at the instance
and for the benefit of Tapley, with knowledge on the part of
Walker of the circumstances under which the previous deede
were executed. Other facts are stated in the opinicm.
Smiikj for the appellant
Lamprey, for the respondent.
By Court, Bebry, J. It appearing from the testimony of
the respondent, who was plaintiff below, that she was a mar-
ried woman and wife of one of the defendants, the counsel for
the appellant moved to dismiss the action on the ground that
the court had no jurisdiction of the person of the plaintiff, in-^
sisting that the objection could be taken by motion at any
July, 186S.] Tapley r. Tapley. 77
etage of the trial. This objection went to the legal capacity
at the plaintiff to Bue, and not haying been taken by answer
or demuner, was waived: Pub. Stats., p. 640, sec. 69. The
motion was therefore properly overruled. Several interroga-
tiona propounded to the plaintiff upon the witness-stand were
objected to as leading. Even if the interrogatories were lead-
ing in form, there is no inflexible rule by which they can be
excluded. The judge who presides at the trial has for bettei
opportunities of determining whether a question is objection-
able, as improperly suggesting an answer to the witness which
will be but an echo of the question, than this court possesses,
and unless it is quite apparent (as it is not in this case) that
flome gross injustice resulted fiom the mode of examination
allowed, we are not inclined to criticise or review it: 1 Qreenl.
Ev., sec. 435. Several inquiries were addressed to the respond-
ent by her counsel, which were objected to as incompetent or
irrelevant, or both. They were all directed to the circum-
stances under which the deed from the respondent to Carll
was executed or delivered, and, as we think, all had a tendency
to show that the execution and delivery were not the free and
voluntary acts of the respondent OrdinarUy the proper course
would be to ask the witness to state the circumstances attend-
ing tiie giving of a deed, but for reasons which appear to have
controlled the discretion of the court, counsel were allowed to
call the attention of the witness to particular matters which
went to give character to the transaction, and by interrogatories
which were leading in form. We can conceive of no reason
why they were not competent. Certainly it would have been
proper to ask the witness in a general way, What induced you
to execute the instrument? and we apprehend that the inter-
rogatories put to this witness were to the same effect.
It is to be remembered that in this action the respondent
appeals to the equitable powers of the court, and it is not a
case in which the defendant Walker comes into court with
clean hands, setting up the innocency and b(yna fides of his
purchase; but a case in which he has not only taken a con-
veyance in payment of a precedent debt, but in which, as the
evidence tends to show and the jury find, he had full knowl-
edge at the time he took his title of the circumstances under
which his grantor acquired title, and by those circumstances
he is affected to the same extent as if he stood in Tapley's
shoes, and had been an active party in fact to the original
transaction. If it should be held that by the foot of aa ao-
78 Taplet v. Taplst. [Mmo.
knowledgment before a proper officer a married iroman may be
estopped from denying the voluntary execution of ber deed to
the prejudice of an innocent party, Uie doctrine could have im>
application here. Another question was raised upon the trial
below, — as to the admissibility of certain letters written by
the defendant Walker to his co-defendant, George W. Tapley.
Whether the inquiries made of the witness as to what those
letters related to, and to what letters they were in reply, -w&n
proper or not, is immaterial. The letters themselves, taken
together and in connection with the facts which had already
appeared from the pleadings and evidence, sufficiently showed
that they related to the land in question and the transactiona
involved in this suit. We think they were rightly received.
In order to affect Walker with the equities of the respondent
against Carll and her husband, she had a right to rely upon
the (act that Walker took the land in payment for a precedent
debt, or to show that he took it with a fiill knowledge of all
the circumstanceSi or both; and if the feet that the answer
admitted that the land was taken for a precedent debt might
dispense with the necessity of going further and proving
knowledge, we are unable to see how injustice was done by
allowing such knowledge to be proved, and that, too, by written
admissions of the defendant Walker. We think the letters
had a tendency to establish this knowledge, to show bad faith
on the part of Walker, and to render the whole business from
the beginning more than suspicious. There were other objeo>
tions made to the admission of testimony which it is not
necessary to notice further than to say that they are not well
taken, as they seem to be waived by the omission to rely upon
them in the points or arguments of the appellant's counsel.
The court instructed the jury, among other things: " That
to constitute duress which would avoid the deed, it is not
necessary that the threats be of physical injury alone, but
if the plaintiff, the wife of Tapley, was induced to execute
the deed by the threats of Tapley, her husband, that he would
separate from her as her husband, and not support her, it la
duress, and would avoid the deed. The threats must be such
as she might reasonably apprehend would be carried into eze*
cution, and the act must have been induced by the threats.
It is not necessary that the threats be made at the time, ot
imme^tely before signing, if it was within such time and
the drcomstanoes satisfy you that the threats or its infimmos
properly oontinued and influenced the plaintiff."
July, 1865.] Taplby v. Taplet. 79
To ibiB infltniction ezoeption was taken, bat not well taken.
Gieenlea^ in the second volume of hie work on evidence,
flection 301, says that *' by duress in its more extended sense
ta meant that degree of severity, either threatened and im-
pending or actually inflicted, which is sufficient to overcome
Che mind and will of a person of ordinary firmness." And
again, that duress per minas is restricted by the conunon law
io fear of ^h!emedile8S harm to the person." There is no doubt
that the common-law sense of the word " duress '* has been
scMoewhat enlarged in the progress of civilization: See Foshay
7. Ferguion^ 5 Hill, 154. In that case Mr. Justice Bronson,
holding that the fear of threatened illegal imprisonment will
constitate duress per minoB^ adds: ''I entertain no doubt that a
contract procured by threats and the fear of battery or the
deBtnicticm of property may be avoided on the ground of
duress." And he gives the reason: "There is nothing but the
form of a contract in such a case, without the substance. It
wants the voluntary assent of the party to be bound by it."
And Greenleaf, in the same section firom which we have
already quoted, after saying that " a fear of mere battery or
of destruction of prq[>erty is not technically duress," adds*.
" But facts of this kind, it is conceived, are admissible in evi-
dence to make out a defense of fraud and extortion in obtaining
the instrument." It seems that the rule has been sometimes
laid down that when the threat is of an injury for which full
compensati<Hi can be obtained at law it would not amount to
duress; as, tot instance, a threat of injury to property or of a
slight iiyury to person. But in 1 Parsons on Contracts, 5th
ed«, 896, it is said ^' these distinctions would not now probably
have c(mtrolling power in this country, but where the threat,
whether of mischief to the person or property, or to the good
name, was of sufficient importance to destroy the threatened
party's freedom, the law would not enforce any contract which
he might be induced by such means to make."
The books abound with oases in which conveyances and other
instruments have been set aside because procured by the ex-
ercise of undue influence upon the party executing them, with-
out the infliction or threat of any physical injury or mischief:
1 Lead. Cas. Eq. 94 et seq. And in the general sense of the
term, undue influence would seem to be a species of duress, ot
if this be not quiet accurate, the two would at last seem to
run together so that the precise line where one begins and the
other slops is not easily definable. But it is to he remarked
80 Tapley v. Tapley. [Minn.
that in all these cases where contracts are overthrown because
entered into under duress by actual injury or threatened in-
jury or undue influence, the principle upon which the courta
rest is, that such contracts lack that voluntary assent which
is of the essence of all contracts, and without which, as Story
says, the party "has no free-will, but stands in vinetUis*^: 1
Story's Eq. Jur., sec. 239. Whether there was evidence from
which the jury in this case were warranted in finding a tech-
nical fraud, it is unnecessary to determine. In one sense
duress is fraudulent; that is to say, the obtaining of a contract
under duress is not a fair and honest transaction. But the
jury found that the deed to Carll was obtained by both fraud
and duress, and as either would furnish sufficient cause for
setting aside the conveyance, if either was warranted by the
facts developed on the trial, it is unimportant whether the
other finding was warranted or not. We think the facts bring
the case within the principle and meaning of the law of duress.
Not to recapitulate the testimony in detail, there was in this
case evidence that the land in question was the separate prop-
erty of the respondent, given to her by her father; that after
much importunity, abusive treatment^ and threats of various
kinds, she was induced to make a conveyance of it; that
among other things, he threatened to abandon her, which she
thought " would be a fiEimily scandal "; that it was ooly on ac-
count of his threats and abusive treatment and to keep peace
that she executed the conveyance. Here w$s clearly a threat-
ened injury to her good name, which is duress within the rule
laid down by Parsons. And looking at the reason of things,
if, as is well settled (see case cited from 5 Denio), a threat
of injury to goods and other property, a threat of a battery or
of illegal imprisonment, are held sufficient to constitute duress
and to avoid a contract, on the ground that they take away
freedom of action and are calculated to overcome the mind
of a person of ordinary firmness, when believed in, it would
seem too clear for argument that equal effect ought to be given
to a threat by a husband to abandon his wife and turn her
out upon the world to shift for herself in the anomalous con-
dition of a wife without a husband. If the degree of injury
apprehended, and its almost remediless nature, are to be taken
into account (and not to do so would be irrational), then cer-
tainly in these respects the abandonment of a wife by her hus-
band is far in excess of a battery to the person or a trespass
upon the goods, and stands upon stronger ground. We think
1885. j AsMvrwoiHQ v. Vbosaii. 81
ttie imrtnictiaa Wtts rightljr given, and that thete was evidmoa
in tbe case mfficiont to wammt tbe jury in finding for tlie
plaintiff.
The order denying the motion to aet aside the iFerdiet and
for a new trial is affirmed.
CATaoRT or Ulbbisd Wokait io* Sim eMuol Wofa|MUd ti>fbr ttM inl
ixmtiiii^^bg^mppailt^oimti Ittekr.Jm^ 8aok oIiMma auut
be vftda by dflOuuBar or SBSireiv cvitis diHMd umiTtds Lawqf ▼. Barrkf 18
U. 264^ both cttiiig the principel cam. Defect of pertiee plaintiff nmsl be
taken ad¥aatage of by denmrrer or eneweTp or it ie deemed to be waived:
AhartK ▼. Bremmm, 68 Am. Deo, 270, note SMIK
MkraoD or HumnfAfmn or Wiwaeeie wittria tiie dieei«icm of the trie!
Judges and ^vrflinol be'ieneiMid iialeeB eonM ndaof bMr ieHoleled ead injoe-
tieeda— »g%nMy^fltote,i7Am.Dea 74» end note 08. le te leeding qnee-
tiene^ tbe eabjeot of objeetien in the prine^el cee% eee aEw Batriom y. JtoM^
84 Id. 728.
PuBOBASBB or LiVB KxcfWOKS Tixu TO aa Parjaaiva tnkee i^ a* Ue
ovnriak: JMr ▼. Aaft; 81 AskL Dee. M; «Hl neto; Glooper t. toalvmib 70
U. 8n^ ead notai
ta Bvmiw; See ChmmmmeMk v. Jiitiiniii 48 Am Dee. 088;
T. 2Vm^ ^I^ ^U CkmmMmmUh ▼. ./^fHfii^ 88 Id. 712:
Dbi9 of IfAaano Woiua^ when TosdaUe foe dueee pnetieed vpon bor
bgr bar baabend: Asftroder y. Deeler, 49 Am. Deou 088; Madi9 w. Slkmnon, 9St
Id. IK
9taD' or Miaitiaii Wokav 0 Tom wban nade nadar aedae laiiiaeat
■ W tbe bMilaadk' Xcadlai^Y. JlMo, 87 Any Dear dilL Md aeleiii
ABVBVBOirGh U VBOMAjr.
[U MunoMoeA, Slirl
MAS MiiaxAiK AonoN ni «» Owv Kaxb to Baoeraa Amoosv
Bm bj pnaobeeer of real eatate at an eseootion aale made by bim.
CkaiifJOACT nkaeoBiaxD bt BfonwtM' n Paoraa Brmaaoa of Saui oa
nua StaaMoii gaawjfimi, end ntf otier aula of BHUnmaadam ie-ge.
Appkal from an order of flto- dfatriot oonrt of Hsnnepin
Coonty overraHng' a demimer. The complaint alleged thai
the plaintilf was sherilf of Hennefto Connty, and that aa anoh
aheriffll under an ezecutitti duly i88Ued to him, and in punm-
ance of due noCbiB; he aold ciortBin^ dtoctibed real estate to the
dtefend&nty who w»a the Idgheat bidder, and madi» and ten-
dered to Um a oertMoate ci sale in accofdanoe with law, and
demanded tbe aom' bid, whi<^ the defsndant rdliuied te^ ftsf.
Tbe deftfirdlsnt demurred, on the grounda tha* the* pMnttti
Aa. Dm. Tof. UDOCVUI-a
82 AsMSTBONa V. Vboman. [Hinn.
had no legal capacity to sue, and that the complaint did noi
state fjEicts sufficient to constitute a cause of action. Other
facts are stated in the opinion.
X. Jf. Stewart^ for the appellant.
Fibon and MeNair^ font the respondent.
By Court, Bebby, J. Taken as a whole, the complaini
shows sufficiently that this action is brought by the respond-
ent in his capacity as sheriff of Hennepin County, and thi»
was entirely proper. It was the sheriff's duty to make the
money upon the execution, and in so doing he acted, as was
held by the judge below, as an officer of the law. Until the
money realized from the sale of the land came into the hands
of the sheriff, the judgment creditor had no legal interest in
it. It was the sheriff's business and duty to get it into his
hands, to collect it, and then to pay over to the plaintiff in
the execution. For this purpose, it was his right to enforce
the collection, by suit if necessary, both for the sake of seem*
ing his own fees and that he might have funds wherewith to
respond to the judgment creditor. As is said in OfuJuXL y.
Marria^ 7 Watts & S. 89: '^ That the sheriff may maintain an
action to recover the whole amount of the purchase-money in
his own name, when he seeks to perfect and carry the sale
into effect, is not denied, but admitted. And why? Beoauso
the contract for the sale of the estate is made with him by
the purchaser, and with him alone, and therefore it is that ha
or lus representatiyes can alone maintain an action for the
breach of such contract .... The sheriff may yery properly
be considered as inyested with a trust by law to sell tbM»
estate, which he has full power and is bound to perform for
the benefit, not only of the creditors of the owner, but likewise
for the owner himself; and in order to execute this trust for
the benefit of all concerned, it is not only proper but neoes*
sary that he should haye a like right to maintain such an
action as if he were the legal owner of the estate ": Adams y.
Adams, 4 Watts, 160; Davis y. Baxter, 6 Id. 515; Friedly y»
Scl^eetz, 9 Serg. & R. 164 [11 Am. Dec. 691]; WeidUr y. Farn^
erff Bank, 11 Id. 184; Holdskip y. Dwran, 2 Penr. ft W. 18;
Russell y. Otbbs, 6 Cow. 890; Denton y. Livir^gstonf 9 Johns. 98
[6 Am. Dec. 264]; Chappell y. Dann, 21 Barb. 24; Bisbee y.
HaU, 8 Ohio, 449; Crocker on Sherifib, 182, 201, sec. 478; 2
Cowen's Treatise, 649, citing WUliams y. MiUingtm, 1 H. Black.
81. It may be remarked that it would not, perhaps, be nnrea*
186S.] JomiflQN V. WmoNA xra R. B. Co. 88
sonable to tegard the Bheriff as a '* tniatee of an exprew tmat,*'
under the definition found in sec. 29, p. 635, Pnb. Stats. It
18 inaisted by the appellant that the execution sale was void
because it does not appear that a note or memorandum in
writing was made at the time of the sale, and subscribed, as
required by the statute of frauds. If such memorandum be
necessary, it was not necessary to allege the making of it:
Walsh Y. Kattenburghj 8 Minn. 181; Loehwood v. BigdoWy 11 Li.
113. But the majority of the court are of the opinion that
the proper evidence of a sale of real estate upon execution is
prescribed by the statute on that subject, and that no note or
memorandum other than the certificate of sale is required.
The proper certificate of sale having been tendered in this
case, and the amount of the bid demanded, the action is well
brought. The order overruling the demurrer is aflbmed.
BhKMW mat MADTABf AOEIOH ABAOtWT BtDDSB AT SUUUTIOV 8aU
who nfiuet to ocmiply with the tenu of hii bids Robkuom ▼. OariK 41 Am.
Dee. 47, note S2.
Wbrhbr Shbbiit's 8au wmns ftcATon ov FkAun: See Dmmm ▼.
MlOer^s Adm*r, 70 Am. Deo. 380; Bam§omr.€hrth,4l Id. 47, note 62, whm
other oesee are ooQeoted.
Ths rBoroiPAL gasi n orsd hi MeOaHif v. Graeef 28 Miim. 186^ to the
point that a eheriS^ in maldng a lofj, aoti not as the wgjmA of the eieoutJMi
eveditorp but as tiio oSker of the Uw.
Johnson and Wifb v. Winona and St. Pbtbb
Railboad Compant.
[11 MnnraiotA, MwJ
Oqhmqv CABsm or Pasbihosss n Bouitd io ^g» ■■*"■■ UntosT Humar
Cabb and f oieeight in the oBRying of paHsngen^ and the law makee him
xespoDsible in damagee lor the aUghtoet nec^eet
Wkkbb VnonoT m los FLADiTirF, Evxar laBua NsaHSAxr to SrarAiv
It n PUEBumD to have been found agafaiat the detedant
Qnanov or Nsouanfca zb Om Pioulzablt loa Jubt in a obm where
the evidence as to the fMta from whidi nsg^igenoe might be inf eired is
Ir n HOT NaouosirGB fkb 8b iob Pasbbbobb io Skbp vfob OoviraonHo
Ijbx between two lailroad can in aHshting at a statioa after the train
has halted. Whether snch sot xb n^gliganoe or not is a questioQ to be
determined hf the jniy, npon a eonsidsration of all the dronmstanoes oi
the case.
Vs OiMWi'U'UTB Ihsdvuqibvot ov BvuiBsoi TO SuBEAiN VBBDiOTy there
■nst be soeh a want of evidenoe on tame material point in imoe as satis-
fies the ooort that the jniy in their finding were inflnenoed bgr partialis
er pr^fndioib or misled bjr some mistaken Tiew of the
$i JOONION V. WiNOSA BTC. R. R. Co. [MjLbh.
Avpft^L from an order granting a new tnaL The action
was bcooght to rooover damages Buatained by the plaintiff
GfuoUne Johnson^ while alighting from the defendant's carSi
upon which she was a passenger. The other facts are stated
in the opinion.
Watiam MUehM^ tot the a^^dlant
Sarffeantj FranUiUf and Keye$j toit the respcmdeat.
By Court} McMillan, J. This canse was tried by a jory in
the district court, and resulted in a verdict for plaintifEs of
$150 damages; whereupon the defendant moved for a new
tnal, on the grounds, — 1. That the evidence is insufficient to
Bostain the verdict; 2. Errors in law occurring on the trial,
and duly excepted to.
Upon the trial the defendant, at the close of plaintiff's
testimony, moved for a dismissal of the action, because, —
"1. There is no evidence going to show that the plaintiff
Caroline Johnson was injured through any want of caro or
diligence on the part of the defendant, or its agents or ser>
vants; 2. The evidence shows conclusively that the plaintiff
Caroline Johnson's own want of care and diligence contributed
directly to produce the injury complained of^. and was the di-
rect and immediate eause of such uegnry." The court denied
the motion, and defendant excepted. At the dose of the tes-
timony in the case, the defendant's counsel requested the oourt
to charge the jury, ^'that inasmuch as the evidence in this
ca^^ isi undisputed, that the. plaintiff of her own accord plaoed
her foot upon the link connecting the two cars together be-
tween the bumpers, such act of hers " was negligence on her
part, and she cannot recover. The court refused so to charge^
and the defendant excepted.
The issues as to tlio negligence of the parties, defendant and
plaintiff, are die important issues in this case. Tho defend^
ant is a railroad company, engaged in carrying on its road
passengers and freight for hire, and the plaintiff CiEuroline
Johnson was a passenger for hire on the road of defendant,
going from Winona to Lewiston. The defendant was there*
fore a common carrier of passengers, and continued in this
relation until the contract of transportation was fully com-
pleted, and the plaintiff Caroline Johnson landed from the
can at her destinaticMi. As such carrier, the law itnposas ob
the carrier the utmost human care and foresight, and makes
him responsible in damages for the slightest neglect The
UBS.] JomvBON V. WmoNA etc. R. R. Co. 8&
verdict being for the plaintiff, every iBsne necessary to Bostain
it must be presamed to have been found against the defend-
ant. It fidlowSy therefore, from the finding of the jnry, that
fihere was negUgence on the part of the defendant's employees,
and that there was no ''ordinary negligence'' of the said
plaintiff, which oontribnted proximately to the injury com-
plained of; we are, then, to inquire whether the evidence on
the trial was sufiScient to support these findings.
It is a mistake to suppose that there is no reai controversy
about the facts in relation to the acts of the respective par-
ties to this suit affecting the question of negligence; there are
material differences between the parties upon this point. The
tSieory of the plaintiffs is that the defendant ran the cars on
whi(^ the said plaintiff and others were passengers past the
station platform unnecessarily, and stopped the train in thaii
eondition to discharge the passengers; that the box-cars pre-
vented access to the station platform from the platform-cars
containing the passengers; that there being no other way of
egress from the car, the said plaintiff was compelled to jump
from the loaded oarthree and a half or four feet to the ground,
or descend at the end of the car by stepping on the bumper
or connecting link; that one couiBe was no more careless than
the other; that in descending at the end of the car, whilb
stepping on the connecting Hnk, the train jerked back about
one and a half feet, and crushed tiie plaintiff's foot between
I3ie bumpers; tiiat the backing of the train was for the defend-
ant's convenience, and not for the safety or convenience of
fsaaeBgdTBy and that no notice of the movement was given by
signal or otherwise.
tn suppoH of this theory the plaintiffs produce witnesses
who testify that the train came up to the station slowly, and
slacked up at the pla;tform, when the conductor jumped off
the train to the station platform; that the plaintiff was on a
platform-car which passed the station, and half the next rear
ear, which was a box-car; that the train stopped in this posi-
tion, the passengers, seven to ten, proceeded to get off; others
having preceded her, the plaintiff was descending at the end
of the car, and while stepping on the connecting link, the cars
made a jerk back about the distance mentioned, and hurt the
plaintiff's foot between the bumpers; the train had stopped a
minute before it backed; it remained in this condition: at the
time tins accident happened, the conductor was on the station
platfarm, taking things belonging to plaintiff out of the car;
86 Johnson v. Winona etc. R. R. Co. [Miiiiu
{he things were taken out by him, in part, before the accident,
from the rear car or the one next to it; he commenced taking
things out very soon after he got off; no bell was rung, or
whistle blown, at the time of the backing, that witnesses
heard. Witnesses think the conductor did not come to said
plaintiff at the time of the injury, and did not know of the ac-
cident All testify that there was no way of getting off the
oars at the sides but by jumping three and a half or four feet
to the ground.
On the other hand, the defendant claims that the train ran
past the platform because it was dangerous to stop the train,
loaded as it was, and it was the intention to back the train
immediately, and discharge the passengers on the platform;
that the engine was reversed and the train backing to let the
passengers off, when the accident happened; that the fireman
rang the bell immediately before and at the time of backing;
that the passengers had no notice to leave the cars; that the
said plaintiff, by stepping on the connecting link between the
bumpers, was guilty of at least ordinary negligence^ and by so
doing contributed directly to the injury complained of. There
were three witnesses examined for the defense, the conductor,
the engineer, and the brakeman. All agree that the can
were loaded with ties and iron, and were going slowly when
they arrived at Lewiston. The conductor testifies that he
stepped off onto the platform, and the car on which the plain-
tiff was ran past the platform about a oar and a half; that
before the cars stopped he gave signal to back, to give said
plaintiff a chance to get off on the station platform; just aa
they commenced backing he heard a woman hallo, and gave
signal to stop; train stopped before backing more flian a foot
or two; he was on the platform when he gave signal to back;
had given no notice to passengers to leave the train; he gave
such notice on other trains, not usually on that; it might have
been a quarter of a minute after he got off before he gave signal;
he was opposite the head box-car when the train stepped; they
were slacking back as he gave signal to stop; thinks no pas-
sengers had got off when he gave signal to stop, — not certain;
heard a woman cry out, saw her then, had not noticed her be-
fore; not a car was unlocked or an article stirred till after the
accident happened. The brakeman testifies he had brakes to
stop the cars at the place, but cars were so heavily loaded they
could not stop them very readily. The engineer testifies he
thinks they ran by the platform with flat-cars; the conductot
1865.] Johnson v. Winona etc. R. B. Ca 87
gave him signal to back on that occasion; he reversed and
backed up; had a heavy train; light train can be stopped
qnieker than a heavy one; it damages the engine to stop quick
with heavy train; palled the lever over before the train stopped;
did not give reverse steam till he got signal to back up; backed
up within half a minute after he received signal, as soon as it
ooiQld be done; is positive the fireman rang the bell immedi-
ately before and at the time of backing up.
Id view of the testimony, it needs no argument to show that
the question of negligence in this case was one peculiarly for
the jury, unless the act of the plaintiff was in itself negligence
in law. Can it be said that the mere act of stepping on the
connecting link between two railroad cars is in itself negli-
gence? Clearly not; fiir there may be no engine connected
with the train, and a hundred other drcumstanoes may divest
the act of any characteristic of negligence. Whether, under
the circumstances in which the said plaintiff was situated, it
was negligence, is a mixed question of fact and law. Neg-
ligence and prudence are relative terms, qualified by the
country, the age, the relations, and circumstances in which an
act is done or omitted. The law can give no certain fixed
standard by which a jury shall be governed in inquiries of
this character, for the simple reason that there is none; it only
professes approximation to a standard. These questions are
eminently practical, and are, says Story, more questions of
fact than law.
The question of negligence was properly left to the jury,
under the instruction of the court as to what constitutes neg-
ligence. The defendant cannot complain of the instruction
in this case. Nor do we think the evidence is insufficient to
sustain the verdict. To constitute an insufficiency of evidence
to sustain a verdict, there must be such a want of evidence on
some material point in issue as satisfies the court that the
niry, in their finding, were influenced by partiality or prejudice,
er misled by some mistaken view of the case: St. Pavl v. Kuby^
8 Minn. 164. Different minds might reasonably differ in the
conclusions they would draw from the testimony in this case;
and since the jury, whose province it is to pass upon the
facts, have returned a verdict, we see no reason why it should
be disturbed. These views also dispose of the second ground
for a new trial, — errors in law occurring on the trial and duly
excepted to, — adversely to the defendant. The order grant-
ing a new trial should be reversed, and the cause remanded
for further proceedings.
88 Montour v. Pubdy. [Ifinn.
Ckxiofoir Oibbur of PASsKnoB^s is Bomn> to HxoHnr Dwsbxb ot
CiJui and diligeiioe, and is liable for all injuries to pasMOgen resoltiiig
froath tfiB aUghtaat n^gUgenoe or want ol skiH^ir prndsBoe: See BtMmore A
O.JLB.Oik Y. WartJimffi(m, B^ AoL I>eo. 57a, aoteSlNI; Aiim^. Nmf T^rk
Oaa. J7. B. Ckk, 82 Id. 401, note 403, wlnera other oasM ase ooUacM; Ok»
S Miu S.S.CO.V. MvhUng, 81 Id. 336, note 338; 8ndA y. St. PomI Ckg
Iff (k , 82 Minn. 8, citing the principal caae.
OonnoBOioBT TSwsuawKOE, What Svmcnaatt to Prbvjwt ItBoovBtT:
See 2MI Y. Old OUm^ ele. & iK. Ob. 63 Am. Deo. <70, Mto 080, where
other cases axe ooUeotod.
VsRueT wzu. jror as Sar ianMi aa Bmia AOAmar Evmmca, nnleas
the court can confidently decide that it is nnanthoriied by ik» osidnioe:
Zeans ▼. Canmomm, 82 Am. Dec. 738^ note 747, whese other cases are col-
lected. A new trial wffl not be graabed on the ground that the Yerdict is
agBinBft OYtdtQce, whago the ewdanae ia nsMfliotiag; TemfUn y. IcwaOfy^ 81
Id. 466, note 466.
Tbb rassoffAL oabv 0 orap in AMll y. SL PmUCitf Vy Oo,, 82 MiBn.
6, to the point that when the iasnes ^niwa^^n^ qneations of plainttfTan^gU-
gence, the drcomstances of the acddeni^ and l^e natore and ^extent of hia
h^Jnriei^ are lairiy submitted to tiie Jury, and tbey Ifaid for him* It ami* be
neSMUnad tiia4 liieiY ^«'— ^^ I^mm mamatAgmm In Ua fSYVV.
MONTOUB V. PUBDT.
ru IbiiNflsora, mi
Dnuii nr AMwn oy "EUch jjtd EYmr Machhal AwaBiTWw of tiio
complBint ** is insufficient. Whetheradenial be geaeral or specific^ there
should be no room left for mistake as to what is denied and what is
admitted.
BaauLABCiT of PRooBBsnraa or Pbobat* Cwnx vs Bslatidh to Ouar-
DiAW 's Sals of real estate may, in an action in the nature of ejectment
brought by the ward or his representatiYes i^aiaat the purchaser or his
representatiYes, be collaterally questioned for any of the irregularities
specified in the statute.
Alumation that Kotiob oy Salb was Pubushsd "tor Thsbk Suoob-
aiYX Weeks Paarious " to the sale does not show a conplianoe with a
statute which requires such notice to be published "for three weeks
successiYely next before such sale."
Oath Taken bt Guardian, bxvorb Makimo Sale ot bis Ward's Bxal
EsTATB, that he "will in all respects conduct the same according to law,
and for the benefit and best interest d the wards," is a substantial oom-
pliaaee with the requirement of a statute requiring him to take an oath,
in substance, that he "will ozert his best endeaYors to dispose of the
same in such manner as will be most for the advantage of all persona
interested."
Phobate CkKJBT or OoMPimiT Jurodiotiom signifies the probate court
whose jurisdiction it is proper to iuYoke in the particular case in hand,
within the meaning of the statute providing that a guardian's sals shall
not be avoided on account of any irregularity in the proceedings, provided
MOJITOUB 9. PUBDY. 89
it appears that ibe gnavdian waa licwniad to make tha aala bj a probata
Muri cff ooHipatsiit jtotriadiction.
Lbv <hvBr BT MimcsoTa. SBAnm to PmneanE Jir GviBmairM 8aui
Hbu» V€ii>siBoaaiflDaatoaaaotMBaf^«9aataMafcliroa|^tbgriha
Bjsctigbrt. Tie aii8?rer denied "each and erery material
all^ation in the complaint," and proceeded to set forth tiie
proceedings by which the titie of the plaintiff, while an infant
nnder goardiansliip, was snppoeed to haye paased to the defend-
ant. A demurrer to the answer was overruled. The other
fiicts appear from the opinion.
Brubin and Wamer, for the aif)ellant.
W. W. Phslp$y and Wad§r mmd WtOittm, for the reapoDdanli.
By Court, Bbsby, J. The denial of *^ each and every mate-
rial allegation of the complaint in this case will not do.
Whether a denial be general or specific, there should be
no room for mistake as to what is denied and what is ad-
mitted. The advantage of a verification of pleadings will be,
in a great degree, lost by any other construction. Nor must
parties be permitted to esca])e the consequences of peijury by
claiming tliat such and such allegations (which were material
and denied) were regarded by them as immaterial, and so
there was no corrupt intent The principal question in this
case relates to the guardian's sale set up in the second defense.
If that sale was invalid as pleaded, then the demurrer was
well taken. It is clearly the theory of our statute that the
proceedings of a court of probate, in relation to guardian's
sales, may be overhauled in another way than by bringing
them up for review by direct appeal to the district court.
Though a sale may have been authorized and confirmed by a
probate court, it may be attacked in an action in the nature of
ejectment brought by the ward or his representatives against
the purchaser or his representatives, being the tenant in pos-
session. The grounds of this attack are specified in the stat-
ute. Every irregularity in the proceedings is not fatal, but
certain omissions are fatal, and may be taken advantage of in
an action like the present, and the doings of the probate court
in that way collaterally called in question. Section 23, page
416, Public Statutes, provides as follows: " In case of an action
relating to any estate sold by a guardian under the provisions
of this chapter, in which the ward or any person claiming
nnder him shall contest the validity of the sale, the same shall
not be avoided on account of any irregularity in the proceed-
90 Montour v, Pubdt. [Muul
ings, provided it shall appear, — 1. That the gaardian was
licensed to make the sale by a probate court of competent
jurisdiction; 2. That he gave a bond, which was approved by
the judge of probate, in case any bond was required by the
court upon granting the license; 3. That he took the oath
prescribed in this chapter; 4. That he gave notice of the time
and place of sale, as prescribed by law; and 5. That the prem-
ises were sold accordingly, by public auction, and are held
by one who purchased them in good faith." The objects for
which a sale may be avoided are thus pointed out in the stat-
ute. The regulations upon this subject are matters of express
enactment, so that cases like that of Orignon^s Lessees v. AstoTf
2 How. 319, have comparatively little application. Whatever
presumptions, resting upon considerations of public policy or
upon any other foundation, are allowed in behalf of the validity
of the proceedings of probate courts, they cannot be permitted
to overcome plain and express provisions of statute. If it
turns out upon examination that the sale in question in this
action lacks any of the requisites prescribed in section 23, it
must fall, no matter what arguments ab incanvenienti may be
urged against such determination. On the other hand, if none
of these requisites is wanting, the sale must stand, whatever
else is wanting. The three points in which it is claimed by
the appellant that this sale does not appear by the answer de-
murred to to be regular are -those referred to in the first, third,
and fourth subdivisions of section 23, viz., as to the license,
the guardian's oath, and the notice of the time and place of
sale.
1. As to the notice of the time and place of sale, the slaA-
ute, sec. 15, p. 415, referring to sec. 16, p. 419, Pub. Stats.,
Bequires such notice to be published in a newspaper *^ for three
weeks successively next before such sale." The allegation of
the answer on this head, as qualified by the exhibit to which
it refers, is, that the notice was published ''for three successive
weeks previous " to the day appointed for sale, and the same
allegation is made as to the notice of adjournment. This is
not giving notice (in the language of subdivision 4 of 8ecti6n
23, before cited) "of the time and place of sale as prescribed
by law." The allegations as to posting notice arc too obviously
defective to require comment.
2. As to the oath, the statute, sec. 14, p. 415, Pub. Stats.,
referring to sec. 48, p. 423, and sec. 22, p. 420, Pub. Stats.,
requires the guardian, before fixing on the time and place of
1866.] MONTOUB V. PUBDY. 91
«a]ey ** to take and subscribe an oath, in substanoe. that in dis^
posing of the real estate which he is licensed to sell, he will
exert his best endeavors to dispose of the same in such man-
ner as will be most for the advantage of all persons inter-
ested." The allegation of the defense is, that the oath taken
in this case was ''in conducting the sale of the real estate of
the said minors, under the order of the probate court, that I
will in aU respecte conduct the same according to law, and
ibr the benefit and best interest of the wards." We think it
would have been far better to have avoided all questions, by a
doee adherence to the language of section 22, as above quoted,
but we are inclined to hold that the oath taken is, in sub-
stance, that required, and thus satisfies the statute. ''The
best interest of the wards" would appear to demand the same
skill, care, and diligence as the greatest "advantage of all
persons interested." As the oath appears to have been taken
at the date of the license, we think it is fair to presume that
it was taken before anything was done under the license, and
of course "before fixing on the time and place of sale."
3. As to whether "the guardian was licensed to make the
sale by a probate court of competent jurisdiction," a license
having been granted by a probate court in this case, the ques*
tion is. Was such license granted by a probate court of com-
petent jurisdiction? This will depend upon the sense in
which the phrase "competent jurisdiction" is used in the stat-
ute. We think it is susceptible of two meanings. It may
signify that the court must acquire and exercise jurisdiction
competent to grant the license, through and by reason of a
strict conformity to the requiremente of the statute, by which
the steps preliminary to the issue of license are pointed out;
or it may signify jurisdiction over the subject-matter, a sort
of authority in the abstract to hear and determine the case;
in other words, "by a probate court of competent jurisdiction"
may be meant the court whose jurisdiction it is proper to
invoke in the given instance. We think the phrase "compe-
tent jurisdiction" is not to be taken in the first sense above
spoken of, for the section in which the phrase is found is pro-
fessedly a healing statute, plainly designed to cure certain
irregularities, and therefore excusing to some extent a non-
compliance with the provisions of law. We are of the opinion
that tiie language, "by a probate court of competent jurisdic-
tion," signifies tiie probate court whose jurisdiction it is proper
to invoke in the particular case in hand. Section 6, c. 88^
92 Montour v Purdy. [Ifism.
p. 416, Pub. Stats., provides that the application for license to-
seU voxiA be made to the probate court of the county in whicb^
the i^nardian was appointed.
In the case at bar, the guardian was appointed in Ramsey
Coanty, and the probate court of Ramsey County was tiiere-
fere ''the probate court of competent jurisdiction" in thifr
instance, in the meaning of the statute, according to our con-
struction. If tUfl positkm be somid, it follows that when the
watd, or a party claiming under the ward, attacks a guardian^
sale e&erwise than by appeal, he cannot be permitted to go-
behind the granting of the license any further or for any
other purpose than to inquire whether it was granted by the
probate court of the county in which the guardian received
his appointment. It being ascertained that the license was
granted by such probate court, the statute, so far as an action
like the present is concerned, makes it immaterial whether
any of the steps pointed out as preliminary to the obtaining,
of the license in the regular manner have been complied with
or not. The term ''jurisdiction" is used, not unfrequently, as
Unifying "authority to hear and determine," in the abstract,,
so to speak: United StcOes v. Arredonie, 6 Pet. 709; ChrigikotCs
Leseees v. Aator>, 2 How. 319, and cases cited. Thus, we speak
of admiralty jurisdictdon, of equity jurisdiction, of criminal
jurisdiction, and of probeAe jurisdiction, as denoting the au-
thority of certain courts to adjudicate upon certain classes of
matters, whidi, in the distribution of judicial functions, are-
assigned to them respectively. The word "jurisdiction" is
also evidently used in this sense in sections 2 and 5 of article
6 of our own constitution, and in section 7 of the same arti-
cle, in which it is provided that "a probate court shall havo
jurisdiction over the estates of deceased persons, and persons
under guardianship," etc. So, also, in many passages in tho
statirtes, relating to the powers and duties of the several courts
of the state. We think that the legislature, in view of the
fact that in many portions of the country the office of probate
judge must be filled by men not learned in the law (and this^
would seem to be contemplated by the constitution), nor
trained to accurate business habits, that the records would
often be imperfectly kept, tibat the thankless and unremunera-
tive duties of guardians are quite generally performed by non-
professional parsons, without the advice of counsel, enacted
the provision upon which we have just been commenting, with
a desire to throw security around guardians' sales, suflSeient
Id6&] Montour v. Pubdy, 93
io enooarage bidders to bid freely and fearlessly and up to the
▼aloe of the property offered; and for this purpose they have
protected bona fide puitthasers against collateral attackis upoB
gnaidiaziB' sales, by giving to the granting of license to sell
the fi>roe of an adjudication upon all the foots which stiiot
confionBity ta the statute would require to be established as
pveliminary to the use of such license; and although the re*
flultB of this construction of the statute may be to deprive the
ward of the land sold, in apedSf in some cases where the statu-
toty mode of procuring and consummating a sale haa been
widely departed from, yet in section 24, immediately following
flection 23 under consideration, ample provisioa is made for
the recovery, by any person interested, of damages arising
from any neglect or misconduet in the proceedings of the
guardian, by action upon his bond, or otherwise.
It wa& insisted, upon the argument, that the iise of the word
''competent^" in the phrase ** competent jurisdiction," wae sig-
nificant when read by the light of section 25 of the* same
chapter. It is there i«<ovided that when the validity of the
sale is drawn in question by a pavty claiming adversely to the
wavd, etD., the sale shall not be held void on. account of any
irregularity, ete., "provided it shall appear that the guardian
was lioensed to make the sale by the proper probate court,''
^o. We think the words ''competent" and ''proper" are used
synonymously; or at any rate, that the expression "proper
piobate court" i»used synoiqrmoudy with "probate court of
competent jurisdiction." The expression "probate court hav-
ii^ jurisdiction " seeaaa to be used to accomplish precisely the
same purpose in sections 52 and 54, p. 424, Pub. Stats. In
&ot, a ciHnpariflon of seotiens 23 and 25, above cited^ seems
rather to confirm the view we have taken, for when the sale is
attacked by ttie ward, a bond and oath are made indispen-
sable rsquiritee of a. valid sale; while, when it is attacked by
a piurty claiming advM»ely to llie ward, neither bond, nor oatti.
is required^ This has, we think, a tendency to show that the
wiffd was expected to rely upon his action, g^ven by section
24^ against the guardian, "on the bond of such guardian, or
otherwifie." This waa Us remedy. A party claiming ad^
yerselyto* the ward' needed no remsdy. against the guar<Uaii^
There wae no privity between thi^n; no mutuality of rights
sod duties. B»t wldle. ample pzoteetian was aflbrded to-iena
jfcis purahaesRi, the gaanMaa was made liable to.' the wasd tat
dUMge' arisBiB fitem» his neglect or raiseondnot^ aodtsoiit'
94 Montour v, Purdy. [Minu.
proper, if not necessary, that the existence of the bonS (if one
was required, the general bond being deemed insufficient)
should be established in order to bind the ward by the sale.
The statutes of Massachusetts relating to guardians' sales-
contain provisions similar to those under consideration, but, m>
fkr as we discoveri they do not appear to have received a judi-
cial construction. . The statutes of Michigan (on the same
subject), which were probably imported from Massachusetts,
and are also much like our own, have in two or three cases^
been before the highest court of that state, and have received
a construction in the direction of that we have put upon our
statute in this opinion: Howard v. Moore, 2 Mich. 226; Coon v.
Fry, 6 Id. 506; Marvin v. Schilling^ 12 Id. 356. Entertaining
these views, it follows that we cannot sustain the objections
taken to the petition for license, or to the notice or want of
notice of heaving; but the allegations as to notice of sale being
insufficient, the demurrer must be held to have been well taken
as to them.
The only question remaining arises upon the construction of
an act entitled "An act to protect purchasers of real estate at
executor's, administrator's, or guardian's sales," approved
March 8, 1864. By this act it is provided that if any sale
shall, for any cause whatever, be held void or irregular, the
purchaser in good faith and for value, or his representatives,
shall have a lien on the real estate sold, and for the purchase-
money, taxes paid, and interest thereon. The act, goes on to
provide for an examination into the proceedings had on the
sale, and if the same shall be determined to be irregular, ille-
gal, or void, a. resale is authorized to be made, and out of the
proceeds the purchase-money, taxes, and interest aforesaid are
to be paid next after the expenses of sale.
This is an action of ejectment to recover possession; and in
the absence of any special provision to the contrary, there is
no reason why the possession should not be surrendered to
the rightful claimant, and the lien allowed to stand. ■ There
is nothing in the act of 1864 which makes the satisfac^
tion and discharge of the lien a condition precedent to an
award of possession to the party legally entitled thereto, aa
owner of the fee or otherwise. The act of 1864 is complete in
itself. It gives the lien (that is, provided it is constitutional,
a matter which we have no occasion now to determine), and m
the same breath provides bow that lien may be enforced. This
method of enforcement is exclusive: Andover v. (?oukI, 6 Mass.
1865.] Boas v. WoBTmNGTon. 95
44; FrafiJdin Glass Co. y. WhUe, 14 Id. 289. Aflsnxning that
ihd act of 1864 is constitutional, in whole or in part, the lien
which it gives forms no defense to this action.
The foregoing yiews, we think, dispose of all the substantial
qnestions raised in the case, and of course lead to the conclu-
sion that {he order overruling the demurrer must be reversed.
We remand the action, as it may be possible that the objec-
tions to the allegations of notice of sale can be obviated by
amendment.
DKNiALa^ SuvncDBNor of, nr AimwMB: See Lpid ▼. PkiO, 82 Am. Boc
7S, note 91, where jother cases tm coUecied; Munn ▼. TmUmai^ 81 Id. 506;
KeigMar ▼. Socage Mfg, Cbi, 71 Id. 600, note 607; Humphrt^ ▼. MtCaXk, 70
Id. 621, note 625, where this sahjeet is discnased at length.
Dbcsxb or Pbobatb Coobt, wmi'HJiH oar bb Ck>iiiATnuxxT Attagkxd:
8ae FUagStibtm ▼. Xaiae, 81 Am. Deo. 902, note SOi| where other cases wet col-
laeted. The proceedings of a probate court in reference to a gnardian's sale
may be drawn in question by a ward in an action eoUatoal to soch proceed-
lags, npon the grounds spedBed in the statate: DwaU ▼. BmUon, 29 Minn.
93^ citing the principal case.
PvBLiCAiioN OF NoTiCB OF 8al% Wbat SufViozsiT: See Hiffman ▼. An-
ttoay, 75 Am. Dec. 701, note 708» where this snbject is oonsidared; Truateei
^Sekoola^. SfM, 68 Id. 586; note to Maddoxy. StUUvan, 44 Id. 23a
HoncB OF OuABBiAx's Baim or Rbaltt, "fob Thbjb Wbekb Suoon
nvxLT": See Fnaier ▼. Sieemrod, 71 Am. Deo. 447, note 453^ where other
cases are ooQeoted.
Qaxh of Ovabdeah LmmwD vo Bell Wabd's Rialtt: See Frmitr ▼•
Stmmwi, 71 Am. Deo, 447; OMper ▼• AmdMiiid; 66 Id. 02; note 71.
Boss V. WOBTHIKQTON.
til XDonsoTA, 48aj
Qbavceb Dr Dbbd Wbiob Kigitis that Pbbmisbb OasTSYED ABB Sub-
jBor TO MoBTOAOB, which he ii to pay, is directly liable to the mortgagee
for the payment of tiie mortgage debt^ althoo^ the mortgage is invalid
by reason of its having bat one witness.
MuiBJMOTA Aor OF 1868 LioALiznio GtomrBXANGBs of Rbal Estatb havdio
BUT Ohb WxTHBaB^ thoQgh retroactive, is nevertheleas constitational, and
renders valid a prior mortgage having bnt one witness.
MoBTOAOB HAVINQ BI;T OhB WlTNB8fS WmCH HAS BBEN LbGALIZED by a
curative act» bat the registration of which has not been legalised, cannot
be foreclosed by advertisement. Bat after its registration has been
legalised by a eorative aot^ it may be so foreclosed.
MoBTGiAOB HAT BB FoBBCLOSBD BT Advebtisbkbht if the execution, issued
apon a jadgment recovered for the nunrtgage debt, has been in fact and
in law retamed wholly unsatisfied.
Wbbkb MoBTOAOB IB GivBiT IB Pabt TO Secubb Mortoaobb AOAnrST
LiABiuxT AS Indobseb of a note^ which he, after jadgment has hmm
96 Boss V. WoSTHIKGVOlf. [IAb.
rBOcrw^ i/tmnaof by the holder against- the meBigagQi^. tiilmr op
peg^ the faetllist no exeeaiion was issued' ngoa anbh Ja^^siaeii^ttBd mk
turned unsatisfied will not stand in the way of a f oreolosnxe hy him.
AonoN to enjoin the fbiecloBixre of a mortgage hf adver*
tiaement The fiusts aie stated in the oi»nion.
Sargeanty Franhliny and KeyeSj for the appellant
Berry and Waterman, for th& respondent.
By Court, Bebby, J. ABSuming, in accordance i^Mi Hm
decisions in Parret v. Shaubhut, 5 Minn. 323 [80 Am. Dec
484], and Thompson v. Morgan^ 6 Id. 292, that the mstm-
ment oa trial in this action was^ at law, invalid as a mori-
gage at the time of its execution, because attested by one
witnesa only (wiihout now following those cases further), it
wotdd unquestionably be in the power of a court of equity, in
a proper case, to remedy a defect of that character, not <HiIy
as against the maker of the instrument, but also against any
person who acquired title from the maker with notice: 1 Lead.
Cas. Eq. 192, 193, 196, 198, 558; 2 Id. 34, 35, 56; 1 Sterna Bq.
Jur., sees. 165, 1^6; WadswoHh v. WendeMj 5 Johns^ Ch. IBS;
Schenck v. Ellingwood, 3 Sdw. Gh. 175; Pub. Stats., p. 89^
sees. 58, 59.
1. In this case it appears that one Rogers, togeiher with
Bdwiurd Wortfaington, executed am instrument ronniag to
Lewis WortMngtxm, the appellant^ iibich itistrameni wm» bat
form a mortgage, save that it was defective becau^ attested
by one subscribing wittiess only. Subsequently, Rogers exe-
cuted a deed running to Ross, the respondent, of an undi-
vided half of the premises attempted to^be* mortgaged. This
deed was duly executed, and contsui^ the following clause:
" Subject to a mortgage executed by F. W. H. Rogers and B.
Worthington to Lewis Worthington, and also a mortgfige to
A. P. Foster, which said Ross, is^ta pay or cause to be paid^ so
that the said F. W. H. Rogers shall not be held liable for the'
payment of any part or parts of the above-mentioned mort-
gages." In the first place, this clause is an express recc^ni-
tion by Ross of the existence of the defectively executed
instrument, and of its nature as a mortgage, and this reoog-
nition is contained in a deed duly executed irith idi the
formalities which should have been observed in the execution
of the mortgage. So far as Rogers and Ross are concerned,
this recognition made in this manner would seem tobe ttrntinh
mount to a ratification or affiimance of the mortgaget- See
1865.] R088 O. WORTHINGTON. 97
Chautanque Co. Bafil v. White, 6 N. Y. 255 [67 Am. Dec, 442];
Hartley v. Harrison, 24 Id. 172. In tlie second place, there
is no room for doubt that Ross, accepting a deed containing
a clause of this kind, took his title with actual notice of the
existence of the mortgage, and of the liability of his grantor,
Rogers, thereupon. As was remarked in Thompson y. Morgan,
6 Minn. 292, it is quite likely that by the acceptance of a deed
contmning a clause recognizing a subsisting lien and waiving
its defects, — as we think this does, — Ross may have estopped
himtself from questioning the validity of the mortgage, and
according to the doctrine of Burr v. Beers, 24 N. Y. 178 [80
Am. Dec. 327], have made himself directly liable to the ap-
pellant for the amount of the mortgage debt. At any rate, it
18 obvious that, taking the premises as he did, with actual
notice of the equities of the appellant against Ross arising out
of the execution of the instrument intended as a mortgage,
he took his title subject to the same: 2 Lead. Cas. Eq. 33, 37;
Hatch V. Morris, 3 Edw. Ch. 313. It follows from the forego-
ing considerations, that so much of the order appealed from
in this cause as directs judgment to the effect that as to the
land conveyed to Ross '^ nothing was at the commencement of
this action or is now due or owing to the defendant upon said
alleged mortgage, and that such alleged mortgage shall be
decreed to constitute no lien or encumbrance thereon as
against the plaintiff's title thereto," and "that the cloud
thereon caused by said alleged mortgage be removed," is
erroneous
2. The mortgage, having been attested by one witness only,
was clearly not entitled to record: Parret v. Shaubhut, 5 Minn.
323 [80 Am. Dec. 424]. It could not, therefore, be properly
foreclosed by advertisement under the statute (Pub. Stats.,
subd. 3, p. 644, sec. 2), unless this defect was cured by the
statute passed July 26, 1858 (see Pub. Stats., pp. 403, 404),
subsequently to the execution of the mortgage, as well as of
the deed to Ross, or by the statute passed March 5, 1863, after
this action was commenced, but before it was brought on for
trial: See Laws 1863, p. 83. The statute of July 26th reads
in this wise: "All conveyances of real estate heretofore made
within the limits of this state, properly sealed and acknowl«
edged, with one subscribing witness thereto, shall be legal and
valid to all intents and purjwBes." This law is in its very
terms retroactive, but according to high authority not for that
reason necessarily invalid: Sedgwick on Statutory and Con-
AM. D«c. Vol. LXXXVin-7.
98 Ross V, WOBTHINOTON. [MilUL
Btitational Law, 192, 202, 406, 415, 666, 670; WUHnsm v.
Ldandf 2 Pet. 627. See also SyracuM City Bank y. Davia^ 16
Barb. 188.
''A retrospective statute," says Chancellor Kent, ^'affecting
and changing vested rights, is very generally considered in
this country as founded on unconstitutional principles, and
consequently inoperative and void. But this doctrine is not
understood to apply to remedial statutes which may be of a
retrospective nature, provided they do not impair contracts or
disturb absolute vested rights, and only go to confirm rights
already existing, and in furtherance of the remedy, by curing
defects and adding to the means of enforcing existing obliga-
tions. Such statutes have been held valid when clearly just
and reasonable, and conducive to the general welfare, even
though they might operate in a degree upon existing rights as
a statute to confirm former marriages defectively celebrated,
or sale of lands defectively made or acknowledged. The legal
rights affected in these cases by the statutes were deemed to
have been vested subject to the equity existing against them,
and which the statutes recognized and enforced": 1 Kent's
Com. 455, 456; see also Dutch Church v. Mott^ 7 Paige, 82
[32 Am. Dec. 613]. In this case the title to certain lands
vested in Ross, the respondent, subject to the equity existing
against them on account of the defectively executed mortgage.
We think the statute of July 26th, so far as it is applicable to
this action, falls within the principles laid down by Chancellor
Kent. It recognizes and accomplishes for the appellant in a
speedy and inexpensive manner what he would otherwise be
obliged to resort to a proceeding in equity to accomplish. It
is, however, to be noted that no effect is expressly given by the
act of July 26th to any registration which had been made of
the defective conveyance, as in this case, prior to the passage
of the act; and we are inclined to hold that it does not legalize
such registration. But the act of 1863 enacts as foUows:
" Section 1. That all instruments heretofore made relating t»
the conveyance of real estate, or any interest therein, within
the limits of this state, having only one subscribing witness
thereto, shall, if in other respects conformable to law, be
entitled to record with the same effect from the time of the
passage of this act as if attested by two subscribing witnesses.
Section 2. The record of all such instruments heretofore
made shall, from the time of the passage of this act, have the
same force and effect as if the same were recorded anew under
1865.] R088 V. WOBTHINOTOH. 99
the provisions of section 1 of this act." In this case, where
the question is as to the validity of the act of 1863 as respects
Rogers, the maker of the mortgage, and Ross, his grantee, with
actual notice of the mortgage, we see no reason why this act
does not also fall within the principles before referred to, as
laid down by Chancellor Kent. We think the act in its appli-
cation to a case like this is valid. However, as this act was
not in force at the time when the proceedings to foreclose by
advertisement were instituted, nor on the day appointed for the
sale, the record was at that time void; or in other words, the
mortgage was not legally recorded, and so the mortgagee was
not authorised to proceed to foreclosure under the statute by
advertisement. We think he was properly enjoined firom pro-
ceeding further on that attempted foreclosure. But the effect
of the act of 1863, from the time of its passage, was to render
that record valid, and sufficient to satisfy the statute, which
makes registration an indispensable prerequisite to foreclosure
by advertisement. So much of the order appealed from as
perpetually enjoined the mortgagee from making any sale
whatever of the mortgaged premises by advertisement under
the statute was therefore erroneous.
3. In reference to the judgment recovered by the appellant
for a part of the debt secured by the mortgage, the statement
that the execution issued thereon "was, in &ct and in law,
returned wholly unsatisfied," fully meets the requirement of
the statute relating to foreclosure by advertisement. As to the
other judgment, it appears to have been recovered on a note*
given to Amos Worthington, on which the appellant, Lewi»
Worthington, was indorser, and the mortgage in question was
in part given to protect him against his liability on his indorse*
men! Judgment was recovered by Amos Worthington against
the makers. Subsequently the note was paid and taken up
by the indorser and appellant. It is urged that the appellant
thereby succeeded to the rights of Amos Worthington. It is
difficult to see how he thus succeeded, as he paid the note, and
not the judgment This debt (so to speak), originally secured
by the mortgage, was an indemnity against a liability as in*
dorser. No proceedings, so far as appears, have been instituted
at law by the indorser to recover what he has been compelled
to pay on account of his indorsement. The proceedings insti-
tuted by Amos Worthington on the note were clearly not pro-
ceedings upon the liability of the makers of the note to Lewis
Worthington, and so the &ct that no execution had been
100 Winona etc. R. R. Co. v. Waldron. [Minn.
issnel npon the judgment recovered by him, and returned
unsatislSed, was not in the way of a foreclosure by the appel-
lant. There are several points found in the briefs of counsel
to which we do not deem it necessary to make any special
allusion. The views which we have expressed determine,
we think, the substantial matters in controversy. The order
appealed from is reversed, except so far as it enjoins the pend-
ing foreclosure proceedings, as to which it is affirmed, and the
case remanded.
Wilson, C. J., having been of counsel, took no part in the
decision of this case.
LiABnjTT or G&AKTBi Who Assumes Path ezit of MoBraAGB: See Burr
T. Beeri^ 80 Am. Dec. 327, note 329, where other cases are collected.
In MiNKxaoTA Convetaitcb must, to be Valcd, have Two WmiEBSEB:
See Parrti v. Shombha, 80 Am. Dec 42i» note 429, where other cassa an
eoUected.
To ENTTTUi Party to Fobsclosi Mobtqagb bt Abvbbtibbmbht, it is
requisite that the mortgage should have been duly recorded: Tltorp v. MerriQ,
21 Minn. 338, citing the principal case. Nor can a mortgage not entitled to
record on account of its defective attestation be foreclosed by adverfeieement:
Johnson ▼. Scmdkoff, 3D Id. 199, also citing the principal caa&
Thb pbihoipal casb is cited in Johnson ▼. Sandhqf, 30 Minn. 199, to the
point that a mortgage, though defective for want of a second witness, ia not
therefore void, but is valid as against persons having notice of its <*Tigfciw^^^.
Winona and St. Peter R, R. Co. v. Waldeon.
[11 MIMKBSOTA, 615.1
Owner of Farm, Stbif of Which is Taken fob Railbqab^ may, in a
proceeding to determine the compensation to be paid for the taking,
prove the market value of the strip taken, and also in what manner the
market value of the farm will be injured by the proposed railroad.
Admisbion of Immaterial Testimony Which Works No Injury is not
sufficient ground for a new trial.
Additional Cost to Owner of Land Taken for Railroad fob Fengiho
along the line ia a proper element of damage, when the company is
under no obligation to fence its road; but if the company is compelled
by statute to construct and maintain fences, such additional cost cannot
be considered as an element of damage.
Legislature mat Impose upon Existing Railroad Corporations Duty
OF Fenoinq their roads, although the original charters be silent on the
subject of fencing.
Minnesota Aot of 186S, Craftib 10^ n dt OoirFiJor with Sionoir 27
OF Abtiolb 4 OF CoNcmTunoN, which provides that no law shall em-
brace more than one snbjeet^ which must be expraicd uk its titlA, and
is therefore void.
1865.] V/ixoNA BTc. R. R. Co. v. Waldbon. 101
OEnKAL BKniTis Axisinq from CoMSTBUcnozr or Bailboad, which ae-
one to the country generally tbrongh which it passes, are not to be
taken into account in estimating the compensatian for taking a strip
throng a fiarm, hat only those benefits are to be oonsiderad wfaieh fssoII
Bpeetally and directly to the fiarm itself.
Spboax. Benxkts to Tmact or Lakd oar Whiob Past is Taxek lOft Baii^
BOAD may be set off against the injary eaosed by taking snch pari,
l^t^laon, C J., dissenting.
Appeal from an order of the 4i6teict opiuty J^lnMsled County,
The opinion states the case.
Franklin and KeyeSy for the appellant.
E. A. McMahon and Charles C. WUUon, for the respondents.
By Coort, McMillan, J. This is a proceeding under sections
4 and 5 of chapter 27 of the Session Laws of 1855, to assess
the damages sustained by respondents — the owners of certain
lands — by reason of the construction of the appellant's road
through their premises.
An appeal from the report of the commissioners was taken
by the respondents here to the district court, and the cause
tried and damages assessed for the respondents; whereupon
the appellant moved for a new trial, which was denied. From
the order denying this motion, this appeal is taken. Several
exceptions to the rulings of the court on the admissibility of
testimony, and to the instructions of the court to the jury,
were taken, which we proceed to dispose of.
Hiram T. Horton, a witness for the respondents, having
been sworn, in the course of his examination was asked by
the respondents, '' What was the market value per acre of the
respondents' land taken by the railroad company in the fore
part of January, 1865," which was objected to by the appel-
lant: 1. That it is a cross-examination of the parties' own
witness; 2. The correct rule for ascertaining the damages, if
any, in such a case as this, is to ascertain the market value
per acre of the whole farm, a part of which is taken without
the construction of the railroad, and then with it, and the
party on the direct examination of his witness should be con-
fined to such rule, and not be permitted to examine as to the
amount of damages occasioned by particular matters sepa-
rately, as upon cross-examination. The objections were over-
ruled, and the appellant excepted. We see no error in this
ruling. The same point was fully considered and determined
in Winona & St. P. R, R. Co. v. Denmany 10 Minn. 267.
The witness was further asked to " state to the jury in what
102 Winona etc. R. R. Co. v. Waldbon. [Minn.
manner the road runs through the land, and in what manner
is the market value of the farm injured by the road." The
latter part of the question was objected to by the appellant,
on the ground that it asks for the opinion of the witness as to
what affects the market value of the farm instead of the facts.
'/Th^ ; court pverruled the objection, and appellant excepted.
:\y^ tbiiikthe-^uestipn wAScPFQp^r.^ The market value of the
farm is the standard by wiiich the injury to the farm is de-
termined, and is here used as synonymous with the farm.
The manner in which the road runs through the farm evi-
dently embraces the course and character of the track of the
road with reference to this land; and the portion of the ques-
tion objected to, we think, calls upon the witness to state in what
manner, — that is, by reason of what facts or circumstances, —
in his opinion, this injures the value of the farm; or in other
words, how does this road render the farm less valuable; and
the witness so understood it, and states purely matters of fact
ill reply: Dtoight v. Co. Camera of Hampden^ 11 Cush. 204.
The respondents then proposed to prove by this witness that
during some portions of the year Waldron hauls his wheat
and produce out to market, and his lumber and heavy articles
back, by a route which crosses the appellant's railroad track
in his field on this farm, and that by the construction of the
railroad the occupant of the farm is inconvenienced, and the
market value thereby affected; which was objected to on vari-
ous grounds. The court sustained the objections so far as the
number and locations of the crossings are concerned, but over-
ruled the objections so far as crossing the track in going to
and returning from market is concerned, to which the appel-
lant excepted, and the witness answered: ''So far as I know,
he has been in the habit of crossing the railroad, and coming
north with grain to market; comes the north road because it
is best; there is a marsh on the other road." The court, how-
ever, at the appellant's request, charged the jury that the
respondents are in no event entitled to recover any amount as
damages against the appellant for mere inconvenience in
crossing the track of the railroad in going to or returning from
the respective sides of their farm divided by the same, and
further charged: "You must not consider any inconvenience
from .... crossing the track." If it clearly appears that^
notwithstanding the admission of testimony which is iunna-
terial, no injury resulted therefrom, the admission of such
testimony will not be a sufficient ground for a new trial. In
1865.] Winona etc. R. R. Co. v. Waldbon. 103
Tiew of the iDstruction of the court to the jury, which we have
noticed, we think no injury resulted to the appellant from the
testimony referred to, and we do not feel called upon to dis-
turb the verdict for this reason.
The third point raised by the appellant is of a more serious
character. The court allowed the witness Horton, and other
witnesses, to testify as to additional fences. made necessary by
the construction of the railroad, and the cost of building and
maintaining the same, as an item of damages to the respond-
ents, which was regularly excepted to by the appellant. The
appellant also requested the court to charge the jury, " that by
reason of the special law passed by the legislature of this state
m 1865 (Special Laws 1865, c. 10, sec. 4), which has been put
in evidence, by which the appellant is required to fence on
both sides of its road within two years after the same is con-
structed through inclosed lands, no damages should be allowed
the respondents in this case on account of such fences," which
the court refused, and the appellant excepted. The court also
charged the jury as follows: '' Fencing is a proper subject for
your consideration, in so far as it affects the market value of
the farm."
It is manifest from the whole case that the question of dam-
ages on account of fencing entered into the consideration of the
jury, and materially affected their finding. It is evident, also,
that the damages were assessed with reference to the rights
and obligations of the parties as they existed, independent of
section 4 of chapter 10 of the Special Laws of 1865, which pro-
vides that '^ section 4 of chapter 19 of the Special Laws of 1862,
being an act to facilitate the construction of a railroad from
Winona westerly by way of St. Peter, be amended so as to
read as follows: ' Said company, or any railroad company,
formed by any consolidation with the Winona and St. Peter
Railroad Company, shall construct and maintain a good and
legal fence on both sides of their road wherever it may run
through inclosed lands, within two years after the commence-
ment of the operation of their road across said lands, and dur-
ing said period of two years shall construct and maintain good
and BuflScient cattle-guards at points of crossing such lands,
and shall also construct all necessary farm crossings over the
track of their road.' " This section, it is manifest, materially
changes the obligations of the railroad company as to building
fences, and if it is applicable to this case, must establish a
rule of damages, as to the matter of fencing, essentially differ*
104 Winona etc. B. B. Co. v. Waldboit. [Minn.
ent iiom that which was adopted on the trial of the canse, and
governed the jury in their finding. The validity of the act
and its applicability to this case are denied by the respond-
ents. There are two distinct views of the rights and obliga-
tions of the railroad company with reference to the owners of
improved land through which the road passes, which are to be
distinguished: one is the liability of the railroad company
with reference to the question of compensation to the owner
for damages in taking the land for the road; the other to the
liability of the parties to each other for injuries to cattle or
live-stock, etc., upon the road. The first is the only question
for us to consider here. We think it should admit of no doubt
that, in the absence at least of different statutory legislation,
where a railroad company passes through improved land, the
cost of constructing additional fencing, rendered necessary by
the road, is a proper element of damage to the owner of land
taken, in invitunij for the purpose of the road: Winona & St, P.
R. R. Co. V. Denmanj 10 Minn. 267; Moirss v. Boston & M,
R. R, Co., 2 Cush. 536; Qaimby v. Vt. C. R. iJ. Co., 23 Vt. 387;
see In re Rensselaer & S. R. R. Co., 4 Paige, 553; Petition of MU
Washington Road Co., 35 N. H. 145; Commonwealth v. Boston
& M. R. R. Co., 3 Cush. 25; see Old Colony dt F. R. R. R. Co.
V. Plynwuth, 14 Gray, 162.
But when the railroad company, whether as a condition or
limitation of their right to take land for their road or as a
police regulation, is required by statute to construct such
fences, the damages for taking the land should be assessed
upon the basis of the construction of such fences by the com-
pany, in accordance with the statutory requisition. The
original charter of the company in this instance, which pro-
vides the manner in which lands may be taken, and the mode
of compensation, is silent on the subject of fencing. Section 4,
chapter 19, of the Laws of 1862, is an independent provision,
i;nd has no connection with the taking of lands or the dam-
ages to be assessed therefor. Section 4, chapter 10, of Special
Laws of 1865, is of the same character, and is an amendment
of and substitute for section 4 of the Laws of 1862.
If it were admitted, therefore, that the terms prescribed in
the charter with reference to the mode and condition of taking
lands and assessing damages were in their nature vested rights,
and therefore not capable of being changed without the con-
sent of the company, it would not affect this question, since
fencing is not embraced within these terms, and is not by the
1865.] ViNONA ETC. R. R. Co. v. Waldbon. 105
tterms of the charter a condition or limitation of the company
to take the land for the construction of the road. That the
charter of a private corporation is a contract there is no doubt;
and that, in the absence of express limitation or restriction,
the corporation takes the franchises with all reasonable and
tteceesary incidents to accomplish the object of its existence
granted by the charter as vested rights, will not be doubted;
but that the legislature may control and regulate the action
of these artificial beings in the exercise of their rights just
as a natural person may be controlled and regulated is as
well settled. These rights of the individual citizen are the
object of protection by the government, but they are quali-
fi^ by his relation to the public, and must not be exer-
cised to the public injury. Whatever regulation, therefore,
of individual rights is necessary to be prescribed for the pub-
lic welfare is not only within the power of the legislature,
bat is incumbent on it to enact. This principle constitutes
the police power of the state. To this source the right of the
legislature to impose upon existing railroad corporations the
duty of fencing their roads, making cattle-guards, regulating
the speed of their cars, the use of signals, etc., is traced, and
on this principle it is sustained: Ohio & Miss. R. R. Co, v.
MeCleUand, 25 lU. 140; Galena & C. R. R. Co. v. Loomis, 13
Id. 548; Nichds v. Sonienet & K. R. R. Co., 43 Me. 356; Red-
field on Railways, 549, 554, and note and authorities cited.
If the legislature can deprive itself of this power in any in-
stance, it certainly can only be done by express grant, and
not by implication: Promderice Bank v. BUlingSy 4 Pet. 514.
This cannot be claimed in this instance, for the right to
amend, saving only vested rights, is expressly in the original
charter: Laws 1855. The section of the act of 1862 relative
to fencing, therefore, was a mere police regulation, and the
company, so far as the act itself is concerned, had no vested
rights thereunder: Special Laws 1862, c. 19, sec. 4. It was
therefore entirely competent for the legislature to alter, amend,
or repeal it, and the consent of the company was not necessary.
It follows that the act of 1865, so far as this question is con-
oemed, is valid for the same reason: Sess. Laws 1865, p. 48,
c. 10, sec. 4.
But it is further urged that the act of 1865 is in conflict
with section 27 of article 4 of the constitution. The article
is as follows: '' No law shall embrace more than one i ubject,
which shall be expressed in its title." The majority of the
106 Winona etc. R. R. Co. v. Waldbon, [Minn.
court are of opinion that this objection to the law muBt be
Bustained. My own opinion is, that the law comes within the
principle laid down by the supreme court of this state in Tut-
tie V. Strout, 7 Minn. 465, and is valid; see also Board of St^
pervisors of Ramsey County v. Heenan, 2 Id. 330.
There are two other questions which embrace the substance
of the remaining points of the appellant: 1. Are general ben-
efits conferred on the owner of the land taken, — that is, such
benefits as result from the construction of the road to property
holders generally, in the same vicinity through whose land the
road does not pass, to be deducted from the compensation due
to the owner through whose land the road passes, for his dam-
ages? 2. Can special benefits accruing to the owner of the
land taken — that is, local, incidental benefits resulting to
the premises (a part of which is taken) directly from the con-
struction of the road — be deducted from the value of that
portion of the land actually taken for the road, or must they
be recouped, if at all, from the damages resulting to the re-
maining portion of the premises by reason of the taking of
the land for the construction of the road?
There is great conflict in the decisions of the courts of the
different states of our country upon these questions. It is
useless to attempt to lay down any one rule as settled by uni-
form authority, or perhaps by a decided weight of authority.
We are compelled, in establishing a rule for our own state, to
adopt that which, in view of the important results to public
improvements and to private rights, seems most in accordance
with settled principles of law in analogous cases. The charter
of the railroad company in this case provides the manner in
which compensation for lands taken for the road shall be
ascertained and determined: " In estimating damages or com-
pensation to be paid to any claimant to lands, or interest in
lands so proposed to be taken, the said commissioners shall
take into consideration the benefits to accrue to the claimant
by the construction of said railroad, and allow such benefits
by way of recoupment against the damages which such claim-
ant may sustain thereby, and report only the balance of
damages which shall remain after applying such benefits in
recoupment thereof; but no balance shall be in any case re-
ported in favor of the company." This language does not aid
us in determining what elements are to constitute the damages
for which compensation is to be allowed, or the benefits which
are to be recouped therefrom, but leaves these questions to be
determined by other principles of law.
1865.] Winona etc. R. R. Co. v. Waldbon. 107
The coart charged the jury, '^ that any general benefits aris-
ing from the construction or operation of the railroad, shared
by the defendants in common with the whole country in this
vicinity, and not peculiar to them or to other lands actually
crossed by the road, you will exclude and not consider in as-
certaining their damages; as, for instance, such benefits as
u«;fendantB would receive if the railroad should be constructed
through the country, but not crossing this farm." The court
also charged the jury that '' if the fEirm would sell for as much
as it now is, with the road constructed through it, less the
valne of the land actually taken, as it would bring if the road
ran through the country, but not crossing this farm, then de-
fendants have sustained no damage whatever. If it will not,
then that reduction in the market value of the lands not taken
is the measure of defendants' damages." To these instructions
to the jury the appellant excepted. We think this charge was
correct. The benefits which result to the country generally,
or to particular communities, by reason of the construction
and operation of railroads, and other internal improvements
prosecuted by private enterprise, although for public use, are
to be shared equally by the citizens afiected by them. The
railroad company, the appellant, is a private corporation, and
possesses only the rights conferred by the statute. The state
has granted to it important and valuable rights and franchises,
among them a corporate existence, the right to take, in tnt?i-
tuniy the land of the private citizen for the construction and
operation of a railroad, and the right to take fare, freight, and
tolls for carrying passengers and merchandise. In the con-
sideration of these and other privileges, the company contracts
to build and operate the road in accordance with the terms of
tho act. The charter gives it no right to assess upon lands
benefited by the road through which it does not pass any sum
to aid in the construction, pay damages, or otherwise; and
whatever may be the case when a public improvement is
prosecuted by the public, in this instance no such right exists.
It would scarcely be claimed by the appellant here that
it could maintain an action against a land-holder through
whose land the road does not pass, to recover any sum for
general benefits accruing to him from the construction of the
road. This principle being established, it follows that if bone-
fits of this character are to be recouped from damages sufiered
by the owner of the land through which the road passes, the
q)eration of the law must be very unequal and unjust.
108 Winona Era B. R. Co. v. Waldbon. [Mina
These allowances will fall upon bujb a small portion of those
receiving benefits, and that portion those whose lands have
been taken and injured without their consent; thus requiring
them to bear the whole public burden, and at the same time
denying to them advantages conferred on others. Such con-
struction of the charter would be unreasonable; the benefits
to be deducted must be those resulting directly to the land a
part of which is taken from the construction of the road, — not
through the vicinity, but through the land: Meacham v. Fitch-
burg R, R. Co,y 4 Gush. 295; Proprietors of Loch and Canals v.
Nashua & L. R. Corp.^ 10 Id. 388-592; Dtoight v. Co. ConCrs
Hampden, 11 Id. 204; Davis v. Charles R, B, R. Co., 11 Id. 509;
Petition of Mt. Washington Road Co,, 35 N. H. 147; State v.
MiOer, 23 N. J. L. 385; Bedfield on Railways, 134; Palmer Co.
V. FerrUl, 17 Pick. 63-66.
The court also charged the jury as follows: ''Against this
market value of the land actually taken, you will offset noth-
ing whatever"; to which the appellant excepted. There seems
to be a distinction made here between the value of the land
taken for the road and the injury done to the remaining land
by taking it. It would seem to be implied by the charge, and
conceded by the respondents, that special benefits to the
remainder of the land may be recouped from the damages
thereto incurred by the owner, as distinguished from the value
of the land actually taken for the road; and such seems to be
the position of the authorities, which hold that the value of
the land taken must be paid in money: Robhins v. Milwaukee
& H. R. R. Co., 6 Wis. 610. I am unable to see a ground for
any such distinction. It seems to me the right to compensa-
tion for both elements of damage is found in the same source, —
the fundamental right of the citizen to just compersation when
his private property is taken for public use. The compensa-
tion is for the taking and its proximate consequences; other-
wise it leaves the right of the citizen to redress for these
consequences at the option of the legislature, to which I do not
assent. To take land of the citizen for public use by the state
when necessary is an essential incident to sovereignty. The
right of eminent domain is not conferred by the constitution,
but, if affected at all, is limited thereby, and only to the extent
of the limitation can the citizen obtain any redress. If, there-
fore, the limitation extends only to requiring compensation for
the land taken, any other injury being done under the power
of eminent domain, and in pursuance of statute, must be dam*
1365.] Winona etc. R. R. Co. v, Waldron. 109
nvm absque injuria, and the citizen has no redress. This
would take from the principle contained in the constitutional
provision half its virtue, and in many, if not in most, cases
render the citizen comparatively without remedy. For in this
day we know that in many cases the value of the strip of land
actually taken for a railroad is but a small portion of the
actual damage to the owner by the construction of the road
through his land. Nor can I discover that the nature of the
injury is more aggravated, or the right infringed more sacred,
in one case than the other. In one instance the possession of
a small part of a tract of land may be taken, and in the other
the whole tract or parcel may be rendered comparatively use-
less or valueless. The constitution should receive no such
narrow and technical construction. It was intended to declare
a fundamental principle of government, that when the public
exigency requires the government to take for public use the
property of the citizen, full compensation shall be made for
the injury; not only the value of the portion of land taken, but
the damages caused by taking it: Const., art. 1, sec. 13; Id., art.
10, sec. 4; Petition of Mt, Washington Road Co.^ 35 N. H. 146.
If this view is correct, then the damages are a unit, although
composed of integral parts, and if benefits are to be deducted
at all, they must be deducted from the aggregate sum; and it
would seem but just and equitable that if the same act at tho
same time inflicts injury and confers benefits, the one should
be set off against the other in determining the compensation
due for the injury; then a just and full compensation is ascer-
tained, and thus ascertained, must be paid in money. In
some of the states a different rule is prescribed by the consti-
tution, as in the present constitution of Ohio, art. 1, sec. 19;
Id., art. 13, sec. 5; Giesy v. Cincinnati, W., & Z. R. R, Co., 4
Ohio St. 309. But see lAttle Miami R. R. Co. v. Collet^ 6 Id.
182; and the constitution of Vermont, sees. 2, 9, Bill of Rights.
The decided weight of authority in our country, we think, sus-
tains this conclusion, whatever may be the reasoning by which
it is arrived at: Symonds v. Cincinnati, 14 Ohio, 147 [45
Am. Dec. 529]; Kramer v. Cleveland & P. R, R. Co., 5 Ohio
St. 140; McMasters v. Commonwealth, 3 Watts, 294; Pennsyl-
vania R. R, Co, V. Heister, 8 Pa. St. 450; Livingston v. Mayor
of N. F., 8 Wend. 85; Meacham v. Fitchburg R. R. Co., 4 Cush.
297, 298; Dwight v. Co, ComWs of Hampden, 11 Id. 204; Davis
V. Charles River B, R. Co,, 11 Id. 509; Palmer Co, v. Ferrill, 17
Pick. 64; Mclntire v. State, 6 Blackf. 384; State v. Digby, 5 Id.
110 Winona etc. R. R. Co. v. Waldbon. [Minn.
643; Indianapolia C. R. R. Co. v. Hunter^ 8 Ind. 78; AUon A
8. R. R. Co. V. CarpenUr, 14 Dl. 190. This portion of the
charge, therefore, we think was erroneous. The third, fourth,
and fifth grounds urged in support of the appellant's sixth
point have been considered and determined by this court in
the case of Winona & St. P. R. iZ. Co. v. Denman^ 10 Minn.
267. It is there said: " Whether the legislature were of the
opinion that the company should be allowed to take the fee
or an easement, the provision requires compensation for the
interest or estate of those interested in the land, without
reference to the quantity or quality of such interest or estate;
and it may be suggested, that even if the company could
take only an easement, what would be left to the land-owner
consistent with the enjoyment of the easement by a railroad
company, and even his reversion, would ordinarily be of incon*
siderable or no appreciable value, and the legislature might
with perfect fairness provide for compensation for the whole
interest or estate of those claiming any right to the lands."
In this we entirely concur, and see no error in the viewe
expressed upon this subject by the court below. The order
denying the motion for a new trial should be reversed, and
a new trial granted.
Wilson, C. J., dissentirig. A question arises in this case,
whether the owner of land taken by a railroad company is
entitled, in all cases, to compensation therefor in money. My
associates concur in answering this question in the negativn,
holding that against the cash value of the land, special benefits
occasioned by the construction of the road to the remainder of
the same tract may be set off. From this view I dissent. As
it is not materal, on principle, whether the benefits set off are
less than the value of the land taken, we will, for the purpose
of illustration, suppose that the land of the respondents was
worth five hundred dollars, and the special benefits to the
residue of their tract were estimated at an equal or greater
sum, and that the taking of the land caused no incidental
damage to the remainder still owned by the respondents.
Under such circumstances, according to the view of the ma-
jority of the court, the respondents would be entitled to no
further compensation from the company, the " benefits " con-
ferred being considered compensation for the land taken.
If this conclusion can be sustained, it must, I think, be on
3ne of tl^ree grounds: 1. That the land thus appropriated is
1864.] Winona etc. R. R. Ca v. Waldbon. Ill
not '' taken " within the meaning of the constitution; 2. That
WaldroD has been paid or compensated in benefits; or 8.
That the constitation does not guarantee compensation for the
land taken, but for injury caused by the taking, after deduct-
ing the special benefits to the remainder of the same tract.
Whether a perpetual easement or the fee is taken, it is not
necessary to discuss; the entire, perpetual, and exclusiye use
of the land for the purposes of the road is taken, and it is too
clear to admit of doubt, that this estate or interest in the land
is "property," protected by the constitution. Whether pay*
ment or compensation can either wholly or in part be made
for this property in '' benefits " is a question on which I difier
from my brethren. I am inclined to think that the language
of the charter does not justify the position of the majority of
the court on this point, but I shall only at this time discuss
the constitutional question. Section 18, article 1, of our state
constitution, provides that '' private property shall not be taken
for public use without just compensation therefor first paid or
secured." Section 4, article 10, reads: ^* Lands may be taken
for public way for the purpose of granting to any corporation
the franchise of way for public use. In all cases, however, a
hii and equitable compensation shall be paid for such land,
and the damages arising from the taking of the same." The
words of a contract, statute, or constitution should be inter-
preted according to their ordinary acceptation, and in view of
the customs and laws of the country.
In England, in the eleventh century, a law in the language
of our constitution would have authorized compensation or
payment in part, at least, in sheep, com, or provisions, these
articles being the currency or legal tender of that country at
that time. When real coin money was then to be paid, it was
designated in the contract or law "white money," or argentum
albumf the laws or customs of the country otherwise only re-
quiring a certain small proportion of money to what was ten-
dered in kind. Perhaps in the early colonies in this country
a proper interpretation of such language would have permitted
payment in tobacco, that being then the currency of the
country; but now, and in this country, the same language
must have a different interpretation. With us, as a matter of
&ct. money is the common and only recognized medium of
trade, and the supreme law of the land forbids the states to
make anything else a legal tender in payment of debts, and it
must be presumed that individuals contract and legislators
112 Winona etc. R. R. Co. v. Waldbon. [Minn.
make laws with reference to this recognized state of things.
Our laws and cnstoms^ therefore, I think, clearly show what
interpretation shonld be giyen to this language of the constita-
tion above quoted. If the legislature has the right, under our
constitution, to say that a party may be compensated for his
land taken for public use in '^benefits," it may also say that
he may be compensated in oxen, she^, provisions, or tobacco^
or in any other useful or useless thing. Either they have no
power, or unlimited power, to designate the currency or com*
modity in which payment may be made. To my mind, it
seems clear that the constitution, properly interpreted, gives
them no power in the premises. When the public or a cor-
poration takes the property of an individual, it becomes in-
debted to him for its value, and should pay that debt in thai
which, by the law of the land, would be deemed a lawful ten-
der in payment of any other debt. Whether any other view
would be just and equitable, as suggested in the opinion of
the majority of the court, it is not for us to determine. It is
for us only to decide what the law is, not what it should be.
But if we were at liberty to go further, and inquire as to
what would be justice and equity in such cases, I think it
would not be difficult to show that the public or corporations
ought to be required to pay their debts or discharge their ob-
ligations or liabilities as individuals or natural persons are
required to pay or discharge theirs. So every person should
be permitted to say for himself what benefits or improvements
he shall pay for, and to make such improvements according
to his own views of propriety, and as his circumstances re-
quire or permit. Even if the constitution did not settle this
question, the legislature should not require a person to pay any
part of the expense of labor performed by a railroad company
for its own benefit, without his knowledge or direction, and
without the least reference to his interests. It is not unfre-
quently the case that improvements made by one citizen
necessarily and directly benefit another, but I have yet to
learn that such benefits have in any case been allowed as a
set-off against a debt due from the former to the latter. Such
a claim would not be urged by a party or considered by a
court for a moment. But in principle it does not differ, per-
haps, essentially from the claim made in this case. On the
taking of the land, the railroad company became indebted
to Waldron for its value, and now claims the right to offset
against this debt benefits conferred on him by improvements
I86&] Winona sra B. B. Co. v. Waldbon. 118
rabeeqaently made solely for itself on land practieallj its own.
If this was a suit between priyate individuals, it may be safely
said that no precedent could be found for the allowance of
such a claim. But it is said that the comi)ensation secured
by the constitution is not for the land taken, but for the injury
caused by the taking, etc. Perhaps the best answer to this
is in the very language of the constitution. "Private property
shall not be taken for public use without just compensation."
"In all cases a fair and equitable compensation shall be paid
for such land and the damages arising from the taking of the
same.'' To my mind, no language could show more clearly
than these constitutional provisions that the constitution guar-
antees compensation for the '' property " or "land " taken. There
does not seem to me to be any reason to apprehend that this
interpretation of the constitution would interfere with the right
of a party to recover for incidental damages occasioned by
such taking, for I think the argument urged in support of it
does not legitimately or logically lead to such consequences,
and the constitution in express terms secures the right to re>
cover such damages: See art. 4, sec. 10, and art. 1, sec. 8.
As to whether the rights of the parties in this case are gov*
emed by the constitution of the United States, or by our state
constitntion, I do not intimate an opinion, as they would
clearly be the same under either. The charge of the (fourt
below was, I think, correct: See Sutton v. LouiaviUe^ 5 Dana,
28; People v. Mayor of BrooUyUy 6 Barb. 209; Rice v. DanviUe
AN. Turnpike Co., 7 Dana, 81; Jaccb v. Louisviliey 9 Id. 114
[83 Am. Dec. 533]; Hen. & Nash, R. R. Co. v. Dickeraon, 17
B. Hon. 178; 2 Kent's Com. 340, tit. Eminent Domain, note.
I concur in the opinion of the majority of the court, except
on the point above discussed.
Damaobs in EiONSirr Domain Casks. — Whenerer private proper^ is
tik«a for a public use, just compenaation must be znade to the owner; sad
oompenBation to be just miut be real, sabstantial, fnll, aad ample: Virginia
omI Trueiee B. R. Co. ▼. Henry, 8 Key. 165. Just compensation for lands
token in the ekerdse of the right of eminent domain is their actual market
nine at the time of the appropriation: WUaon ▼. Rod^ford tU. R, Jt, Co., 69
BL 273. Damages and just compenaation are precisely synonymous termss
Benry t. Dubuque aud Pac R. R. Co., 2 Iowa» 288.
Whibb All gw Ownbl's Taacr or Land is Takxn, he is entitled to re-
oove the fnU cash value thereof in money at the time of the taking. This
ia tba true flaeanire of the damage which he has sustained: SprtngfiM ami
M. JTy Y. Rkea, 44 Ark. 258; Brmm ▼. BeaUy, 34 BCiss. 227; & 0., 60 Am.
Dwi^aSS; Cka^n ▼. OMoth cmdM. R. R. R. Ca, 33 Wis. 62a. And tiae
▲v. Dsa Vol. LZXXVm— 8
I
114 WmoNA ETC. B. B. Co. «. Waldbon. [Mfam.
dftiDigM am to bo allowod whore londi ore pennanoaily ufmHummL •■
wonld haTo boen giToa had tho landa boon taken outright: Sweam^ ▼. Ofdkd
States, 62 Wii. 896. And where none of a penon*s landa are taken he oaa-
not^ m eminent domain prooeedingp^ reoover any damagea: Sietmm ▼. CUoagm
and B.S,B. Co., 76 EL 74; RadeUffr. Ma^etc qfBroold^ 4 K. Y. 196|
8. 0.» 63 Am. Dec 367» note 866» where thia anbject ia diMniaed.
Whxbs Pabt qrlt or Owmm's Lavd o Takeh, the injury to the pert
not taken ia a proper element of damage as well aa the yalne of the part actat-
aOy taken. If the effect of the taking of a part ia to diminlah the yalno of
the reaidne, he ia entitled to reoover the amoont of the injury oanaed by the
appropriation of the part taken for the naea to which it ia i^iplied: Spnmff*
Jm aad M. Ity y. Shea, 44 Ark. 258; Tomoes and P. R. R. Ok ▼. U$^
aidber, 22 EL 221; 8l Loots etc R. R. Co. t. Capps, 67 Id. 607; KeUksbarg etc
B.R, Co.Y. Henry, 79 Id. 290; Lake Shore etc. Ity Co, v. Chieoffo etc R. B.
Ccp 100 Id. 21; ClUeaffoete, R'yCo. v. SmUh, 111 Id. 363; iUdbnoml efc. AnhI
Co. T. Rogers, 1 Davall, 135; ViMmrg etc R. R. Co. t. Dillard, 35 La. Ann.
1046; Bangor and P. R. R. Co. ▼. MeComb, 60 Me. 290; Prssbreg t. Old Cotomg
aadN. R'gCo., 103B£a88. 1; WaOerY. Old Colony and N. R'g Co., 103 Id. 10;
a C, 4 Am. Rep. 509; Bdmands ▼. City qf Boston, 108 Maaa. 535; Jeknmm ▼.
CUyqf Boston, 130 Id. 462; Brown ▼. Beatty, 34 Min. 227; S. C, 69 Am. l>ea
889; DearbornY. Boston etc R. R., 24 K. H. 179; Virgbdaand TrudbesR. R.
Oc T. ffemy, 8Kev. 176; Raleigh etc R. R. Oc t. Wicker, 74 K. a 220; Sny-
der ▼. Western UnionR. R. Ca, 25 Wia. 60; BigehwT. Western Wis. R'yOc,
27 Id. 478; Chapman t. Oshbosk omJ if. 12. J2. Ox, 33 Id. 629; Washbmrm ▼.
MUwaaiee etc R. R. Co., 59 Id. 364.
And in determining the injnxy to the part not taken, all the facta and cir-
onmatanoea which have the eflfoct to depreciate ita Talne are to be taken into
aoooont, provided they are the direct and neceanury reeolt of the taking.
The inconvenience caosed to perMma in poaaeaaion of the part not taken by
reaaon of the propoaed nae to which the part taken ia to be applied ia to be
conaidered in determining the amoont of the damages. Thna where land ia
taken for a railroad, the rattling of the traina, the ringing of beUa, the blow-
ing of whistlee, the shaking of the groond, the filling of the air with smoke
and soot, the throwing oat of sparks, and the like, are matters which are to
be considered in estimating the depreciation in valne of the pitipeily aa a
whole. 8o^ also, may the manner in which the land or boilding ia eat or die-
figored, and the increased difficulty in the ose of the several parts, and the
inconvenience ariaing from having oommimicatioii between the parte made
more difficult, be taken into accoant. All theae tfainga are proper elenienta
of damage: St. Loots, A., A T. R. R. v. Anderson, 39 Ark. 167; Springfield
and M. R*y v. Rhea, 44 Id. 258; Roekford etc R. R. Co. v. MeKSnley, 64 EL
338; SL Loots etc R'y Co. v. Teters, 68 Id. 144; MeBeynMs v. BwUngbm etc
J^y Co., 106 Id. 152; De Bool v. Frtepwi etc R'y Co., Ill Id. 499; Mani-
morency 0. R. Co. v. Stockton, 43 Ind. 328; Baltimore, P., A C. R. R. Co. v.
Lansing, 52 Id. 229; Harrison v. Iowa U. R. R. Co., 36 Iowa, 323; VhMmrg
etcR.R.Co. V. DiOard, 35 La. Ann. 1045; Bangor and P. R. R. Co. v. Me-
Comb, 60 Me. 290; WaOery. Old Coloinfand N. R'yCo., 103 Mass. 10; & C,
4 Am. Rep. 509; Mnmesata Valley R. R. Co. v. Doran, 17 Minn. 188; CoriU
7. St. Pool etc R. R. Co., 20 Id. 28; Missoori P. Co. v. Hays, 15 Neb. 224;
Repobliean VaUeyR. R. Co. v. Linn, 15 Id. 234; Dearborn v. Boston etc R. R.,
24K. H. 179; Petition qf Mt. Washington Road Co., Z5 Id. 134; SomerviUeetc
R. R. Co. V. Dooghty, 22 K. J. L. 495; Cleodand and P. R. R. Co. v. Ball, h
OtaoBLKSidneinnatietcR'yCo.r.LongwonhtZOId.lOS; Watson y. Pitteimr^
1865.] Winona etc. B.B. Co. v. Waldron. 116
ndC.AACa.,S!V^8U 469; Wilmingtom amd If. If, If. Co. r. Staffer, 00
Id. 374; OreemmOe tad C. R. J?. Co. t. Patrtlam, 5 Rich. 428; IFUte t. Ckat-
iaUeeicR, iS. Ok, 6 Id. 47; Bawm r. AOamtk tie. E. R. Co., 17 a C. 074;
I. SO. 2r. RrfCo.r. Pop^ Q2Taz. 313; RMint r. MUwimieemd U. R. R.
OXf 6 Wis. 636. The injiuy oaiued by nilioftd emlMiikiiia&ti and citti» and
by the mnVing of diftchaa and exoftTatiooi^ la an element of damage to be
pnpmij cnnaidwred in determining the depreoiatiMi in Tidne of the land not
takoB: UiaoRodte§cRr9Co.r.Aam,UAA.43l; MkmmrlP.Co.r. Ha^a,
l6Kelk 224; B^pMkm VaOeg R. R. Co. r. Urn, 15 Id. 234; WUmb^tftomami
R.MLJLOKT. Simifer, 60 Fa. St. 374. If the oonstraetum of the imilraad
tntarCaraa with the fUfW of the aorfaoe water over the land, or obetmcti the
tte dminage thereof^ tbia &ot iriU be taken into aoooont in aeoertaining the
•nomit of damage: SfrkigfiM md M. JTy t. Rkn, 44 AAl 258; Cl^ea^
HC.B.R.OO.T. Cart^, 00 DL 514; Vidabmrg tie. R. R. Co. r. DiUard, 85
La. Ann. 1045; WaOer t. Old Cokmf R'fCo., 103 Ma«. 10; a a, 4 Am.
Bcpw609; Ffltgarr. UatUiikQ$and D. IPfCo.,^ Minn.5a The ownen of
lota iranting on » nsTigaUe river aie entitled to damagea for injnzy to their
f^annn rig|ita by a bridge and embankment ccmatmcted by a railroad oom-
paoy: Okapmamr. OMothemd M.R.R.R. Cdw, 33 Wia. 629. Where theraH-
rond nms throo^ » briok-yard, the neoean^ of haoliog the briok aoroaB the
tmek ie » proper element of damage: Sherwood t. Si. Pond amd C. St^ Co., 21
Minn. 127. The destmctum of a yalnaUe apring ia properly oonaidered in
eetiniating the damages to land a part of which ia taken for a railvoads
WhMemtm t. DtoMiAnadc ^^Co., 62 Iowa» 11. Where the railroad com-
pany ia not obliged to make reaionahle farm-eroatdngiy the ooet of w»*Vii^
aa^ eroaaingi ia a proper element of damage to be allowed to the owners
itrdbfaawi and N.R.R.Co.r. Chmt^ 29 Kan. 94.
The fact that the building and operating » railroad wiU interfere with the
bnaiiMwa of n mill by making it nnaafe to drire bonee near it, and dangeroos
and inoonrenient for penona going to and from it| is a proper matter to be
eonaideced npon a qneation of damages: Wettem Pcl R, R. Co. ▼• BiB, 56
Fa. St. 46a The fact that the railroad separates the wood, water, and tim-
ber from the rest of the farm is proper to be considered: Chicago S I. R. R,
OxT. ^,90111316. If the railroad takesapartof a lot of flats, and
tliereby cnta oif access to tide-water from the remaining portion, the value of
anch access in an element of damage: Drwrjf t. Midland R. R. Co., 127 Mass.
071. And evidence is admisrible to show that the nse of land taken for the
storage of water for dty water^works will necessarily render the petitioner's
dwelling-boose on Ids remaining land unhealthy as a reridence: Johnmm v.
Cby f^BotUm, 130 Id. 452. Where lots of a mill company used in connection
with the mill are taken by a railroad company, the mill company is entitled
to damages for injury to the mill property in consequence of ita being ren-
dered unsafe for the storage of lumber owing to the proximity of the rail-
road: Chapman ▼. OMoth <fr M. R. R. R. Co., 33 Wis. 629.
IhgbBaskd Danosb ot Fu to the buildings and crops on the land not
taken is a proper element of damage. The value of such property is dimin-
iahed by the proximity of a railroad, and it is therefore just that the depre-
dation in value should be taken into account in awarding damages to the
owner: Mills on Eminent Domain, sec. 163; Texa$ <C* St. L, R*y Co. v. Cello,
42 Ark. 528; KeUhtlmrg R. R. v. Bemy, 79 HL 290; Bangor <fr P. R. R. Co.
T. MeOomb, 60 Me. 290; Pioroe v. Woreeater R. R, 105 Mass. 199; ColM v.
St PaulSC. R'fOo., 19 Minn. 283; Oaiiti v. SL Paul tie. R. R. Ok, 20 Id.
88; StUbmm v. i^ortAsm Paei/ie He. R. R. Co.. 34 Id. 420; Adden v. WhUt
116 Winona ETC. R. R. Co. t;. Waldbon. [Minn.
Mcuntain R. R., 55 K. H. 413; S. O., 20 Am. Rep. 220; SofnendOe etc M. ML
Co, y. Doughty, 22 K. J. L. 495; IfaUer qf Utka R. R,, 56 Barb. 456; Oregom
R, R. Co, ▼. Barlow, 3 Or. 311; /. <fr O. N. R*p Co, ▼. Pope, 62 Tex. 313. Bo*
the 'danger from fire most be real in order to constitnte it an elamant of dam-
age. If the buildings are some distance from the road, the danger will not
be considered: Jones y. Chkago S I. R, R, Co., 68 BL 380; Hakk ▼. CSnem-
110^ R, R. Co., 19 Ohio St. 92. In Kansas it is held that onlj the ziak of fira
set out by the railroad company without its faulty and by reason of the oper-
ation of ^e road through the premises, can be considered, because the oom-
pany is liable for fires set out through its own negligence: Kcuuas CUif A &
R. R. Co. y. Kregeh, 32 Kan. 608. Some cases, howeyer, hold that the dam-
age resulting from the fear of fire to buildings and crops is too remote and
speculatiye to be taken into account: Rodemacker y. MQvoaubn eic R, R. Ox,
41 Iowa, 297; Lance y. (7., M., <Cr St, P, R*y Co,, 57 Id. 639; Fremoid etc R, R.
Co, y. Whalen, 11 Neb. 585; Sunbury d: E, R. R, Co. y. HumrneO, 27 Fa. St.
99; Lefugh Valley R. R. Co. y. Latarus, 28 Id. 203; Patten y. ^Ofi^em (%»-
trul R*y Co., 33 Id. 426; S. C, 75 Am. Dec. 612, note 616.
BcTRDEK or OoKSTRtrcnNO ADDmoiTAL Fences and of Tnaintaining the
same is a proper matter to be considered in assessing the damages for land
a part of which is taken for a railroad company: Texas <t* 8L L. R'y Co. t.
Cello, 42 Ark. 528; Butte Co. r. Boydston, 64 CaL 110; Etfansnile eCc R, R,
Co. y. Fitaspatrkk, 10 Ind. 120; Pennsylvania etc. Co. y. Bunnell, 81 Pa. St
414; OreeneUle ds C. R. R, Co. y. Partlow, 5 Rich. 428. And the incopvenience
of haying one's lands temporarily thrown open while a railroad is being oen-
structed oyer it is a material element of damage justly requiring compensa-
tion: St. Louis etc. R. R. Co. r. Klrby, 104 111. 345. And eyidenoe that tiM
railroad will make it more difficult to rant the land or buildings is admissible
in assessing the damages: Ptttaburff etc R, R, Co. y. Roee^ 74 F^ St. 362.
How FAR Benefits may be Offset AOAnrsr Damages. — This question
is discussed at length in the note to Synumds y. Cineimiati, 45 Am. Dec 532.
See also note to Patten y. Northern Central R'y Co., 75 Id. 616^ where subse-
quent cases in this series are collected.
Measure of Damage, What is akj> how Asgebtaimsd. — The measure
el damages allowed to a land-owner for injuries to his land by the construo-
tion of a railroad oyer it includes all damages, direct and consequential, pres-
ent and prospectiye, certain and contingent^ which may fairly result to him
by the loss ol his property and rights, and the injuries thereto: Johnson r,
Atlamtic ia St, L. R. R. Co., 35 N. H. 569; S. C, 69 Am. Dea 560; RusseH
V. SL Paul etc R'y Co,, 33 Minn. 210; PutnamY. Douglas Co., 8 Or. 328. In
determining the yalue of the land taken for a public use, the owner is not
merely entitled to its yalue for the purpose to which he has applied it^ but
he is entitled to its value for any purpose to which it may be applied, or for
which it is ayailable at the time of the taking, or ia likely to be in the imme-
diate future. Mr. Justice Field, in deliyering the opinion of the court in
Boom Co, y. Patterson, 98 U. S. 403, 407, said: "In determining t!te yalue
of land appropriated for public purposes, the same considerationa are to be
rcigarded as in a sale of property between priyate parties. The inquiiy ta
such cases must be, what is the property worth in the market, yiewed not
merely with reference to the uses to which it is at the time applied, but with
teferenoe to the uses to which it is plainly adapted; that is to say, what is it
worth from its ayailability for yalnable uses." And in tiie same opinion the
eminent juxiat added: "Aa a general thing, we should say tiuit the eonipstt»
1865.] Winona etc. R. R. Co. v. Waldeon. 117
ntum to the owner is to be estinuited by ref erance to tbe turn £or wbieh ikm
property is saitable, baving regard to tiie existing bnsinees or wants of ikm
eommimity, or snob as maybe reasonably expected in the ininiediato fntara.**
Ibese Tiews are sopported by a very powerful array ef antboritiee: Mills cm
Eminent Domain, sec 173; LUOeBoeketc B*ffv, MeOtkee^ 41 AriL. 202; Barrimm
T. Foirag, 90a.359; Toungy, Barri§on, 17 Id. 90; Jokntmr.FruporitkJL
JL R'f Ok, 111 HL 413; Chkago etc ^y Co, ▼. Chioago Jb B. R, S. Co., 112
Id. 689; DupMisT. Chicago etc B*p Co., 115 Id. 97; Cbieago S B. E. B. Co. ▼.
Blake, 116 Id. 163; Bofib ▼. MaynUh tic Co,, Z Het (Ky.) 117; Bottom <ft W.
A. B. Corp. ▼. Old Colony B. B. Cwf., 12 Gosh. 606; King t. Mkmmpolk U.
Jty Co,, 32 Minn. 224; BuauU v. 8l Pmd etc By Co., Z^ Id. 21<h IfismH
Bridge Co. t. Bmg, 68 Mo. 491; Amoabeag Ufg. Co. ▼. Woretaier, 60 N. H.
622; SomervOleSB, B B Co. y, J}oiiglay,^Il. J. h, 496-, Trttatemqf College
PohiiT. DemuU^bJhtmp.k 0.217', Goodinr.Cmemnaa€te.Co.^lS(M»9L
169; Cmekmaaete. By Co. r. Longworth, 30 Id. 108; Shemmgo^A. B. B. Ok
T. Brahaun, 79 Fa. St. 447. Where land baa a market ▼alae, the oorreei
meeanre of damage is its fair oaah market ▼aloe. Bat if it is deroted to some
particalar nae, and in oonseqaence of sneh nse it baa an intrinsio valne, the
owner is entitled to receive whatever it is worth for the nse or purpose te
whieh it may be devoted: Jchmeon v. FrtepoH di M, B By Co,, 111 BL 413;
CSUeo^ ete. B*yCo.Y. ChJksagoAB. B B Co., 112 Id. 689; Dujnmv. Cbieage
etc. By Co.^ 115 Id. 97. In Kn^Y. MmaeapoUe U. By Co., 32 Minn. 224, it
was held that the owner is entitled to the market value of the land taken
lor the use to which it may be most advantageously applied, and for which
it wosid sell for the bigheat price in the market. In Trtteteeeqf College Pobd
V. DemneU, 5 Thomp. & G. 217, it was held that the owner of a pond taken
for the purpose of supplying water to a village migjht show that there was no
other pond within a radius of six miles which could be used as a water supply
for towna or villages; and it was held that the measure of the value of the
poud in questioii was not limited to its value for a mill-pond or an ice-pond,
but that its owner was entitled to recover its value for any purpose. la
LUOe Rock etc. By v. MdOehee, 41 Ark. 202, damages were allowed for the
prospective value of the land for a ferry-landing, although the owner had nol
yet established any ferry-landing at the place. In Bomi Co. v. Pattereon, 96
U. S. 403» it was decided that^ on the upper Mississippi, where sending logs
down the river is a regular business* the adaptability of islands in the river,
in connection with the opposite bank of the river, to form a boom of large
dimensions for holding logs in safety, ib a proper element for consideration in
estimating the value of lands on the islands, when appropriated for a publio
use. And in Chicago Jt B, R. R, Co. v. Blahe, 116 HI. 163, it was held that a
plaa of the structure which the owner had contemplated erecting upon the
had in q[ue8tion was properly exhibited to the jury for the purpose of show-
ing the capabilities of the property. So in CHnammaA etc R'y Co. v. Long'
worth, 30 Ohio St. 108| it was held proper to exhibit a pUt of the land which
the owner had previously made with a view of sellii^ it off in lots. The
value of land is not to be restricted to its agricultural or productive quali-
ties, but inquiry may be made as to its adaptabilities for all other legitimate
uses: Barrleon v. Yoimg, 9 Ga. 359 •
Valub of Land at Timb ot its Appbofbiatioji is the value which is to be
taken in assessing the damage for the taking. The general benefits likely te
result to it from the construction of the improvement cannot be considered.
The owner is not entitled to an allowance for the increased value occasioned
by the oompletian of the proposed improvement. The inquiry as to value
118 Winona etc. R. R. Co. v. Waldbqn. [Mina
Bmst be ooofinad strictly to the tuna of the taldiig: MQli on Bmineiit Do-
mem, aeo. 174; •/ones t. New Orleam <fr i9. iSL J?. Ob.» 70 Ale. 2S27; Tean$ S
8LL.RyCo. T. Cftta»42 Ark. 628; Tomtg ▼. Harrieom, 17 Ge. 90; Selma €ic
B. R. Co. ▼. KeUk, 63 Id. 178; CkxAr. SotUk PoriCbmrnH 61 SL 115; Dm-
fMrff V. Ckkago etc B'y Co., 115 Id. 97; Indiana Central B. R, Co. ▼. Butder^ 8
Ind. 74; Logameport etc R'p Co. v. Bvekamam^ 52 Id. 163; Tide Water Ocmal
C6. T. Archer, 9 Gfll & J. 479; Parie ▼. City qfBoeton, 15 Pick. 198; Bmri t.
Wiggleeworih, 117 Biees. 802; SquireY. City qf SonrnMe, 120 Id. 579; OMI
▼. SUUwater etc R. R. Co., 16 Minn. 260; Morin t. Mitmeapoiie <fr JT. R'y Cbu,
30 Id. 100; Stc^ord y. City qf Providence, 10 R. L 667; a C, 14 Am. K«^
710; Sweaney ▼. United States, 62 Wis. 396.
Faib Mabkkt Valus in Cash et the time of the taking is the proper
meeenrb of demege where land is taken for public nees. The owner is not
compelled to take the price for which hie property would sell at forced sale;
bat he is entitled to the price for which a pmdent man would sell it: Mills
en Eminent Domain, sec. 168; dndmHoti Jt O. R. R. v. Mima, 71 Oa. 240;
JadtsomfiOe etc. R'y Co. t. WaUh, 106 HI. 253; RM v. MayeeiOe He Co., Z
Met (Ky.) 117; Laierenee ▼. Boeton, 119 Mass. 126; SomervUle A E. BR. Co.
Y. Dott^A^, 22 N. J. L. 496; CiiyqfMemphUY. Boiton, 9 Heisk. 608.
AflSBSMXRT lOB PuBFOSX ow TAXATION is not admissible for the purpose of
determining the value of land taken under eminent-domain proceedings. Such
aesessment is made for a di£ferent purpose, and is not a fair criterion of the
market yalue of the property: Mills on Eminent Domain, sec 172; Teaoae <fr
8L L. B'y Co. Y. Eddy, 42 Ark. 627; SprinofiM <fr M. BTy v. Bhea, 44 Id. 258;
Brwon v. Promdence etc B. B. Co., 5 Gray, 35; Virginia S T. B. B.Co.y.
Henry, 8 Nev. 165.
DiFfBRXNOB IN Valui OF Land bxposs Takino any part of it for a public
improvement and the value of the part left after the completion of tho im-
provement^ as affected by it^ is the fair measure of damage to the owner re*
salting from the appropriation. And this same rule is applied in case of
buildings, machinery, and other property: Hot Springe B. R. Co. v. Tyler, 36
Ark. 205; Little Bock etc B'y Co. y. Allen, U Id. ^l; Texas d: SL L. B'y r.
Khrby, 44 Id. 103; San Frandsoo, A., A S. B. B. Co, v. Caldwell, 31 CaL 367;
Bberhart v. Chicago etc By Co,, 70 HI. 347; Chicago *k Pac B. B. Co. v. Stein,
75 Id. 41; aty qf Bloondngton v. MUler, 84 Id. 621; Dupms v. Ckhago etc B*^
Co., 115 Id. 97; Sidener v. Essex, 22 Ind. 201; Sater v. BttrUngton etc Co,, I
Iowa, 386; Henry v. D^Ofii^ ^ P. B. B, Co,, 2 Id. 288; Fleming v. ChioMgo
etc B. B. Co., 34 Id. 353; Harrison v. Iowa M, B. B. Co., 36 Id. 323; Bemoick
Y. D. ds N. W. B. Co,, 49 Id. 664; Ham v. Wisconsin etc B'y Co., 61 Id. 716;
JliissouH Biver etc B B Co. y, Owen, 8 Kan. 409; Atchison etc B. B, Co. v.
Blackshirt, 10 Id. 477; Dwight v. County Comm'rs cf Hampden, 11 Cosh. 201;
Virginia <£• T, B. B, Co. v. Henry, 8 Nev. 165; Hew York etc B'y Co. v. Chrystie,
29 Hun, 646; SchmyUaU Nan. Co, v. Tliolmm, 7 Serg. & R. 411; East Brandy-
wine etc. B. R. Co, V. Ba/nck, 78 Pa. St. 454; Sluenango A A. B. B, Co. v. Bra^
ham, 79 Id. 447; Cummings v. CUy of WUliamsport, 84 Id. 473; Pittsburg etc
B'y Co. v. Bentley, 88 Id. 178; PhUadelp/iia <t B, B. R, Co. v. Oeie, 113 Id. 214.
Opinions of Witnkbsbs as to Value or Amount of Damaox. — The
more recent cases hold that the questiod of the market value of land is not a
question of skill or science upon which only experts are competent to testify.
Persons living in the neighborhood, and acquainted with the value of \^
laiid, are generally allowed to testify as to the value, although not shown to
lie experts, strictly speaking: Mills on Eminent Domain, sec 168; Texas ^
1865.] WiNOKA ETC. R. R. Co. V. Waldbon. 119
Sl L. JTyT. nrif^,U AA. 103; KdAabmryS X. M. B. 06. t. Bmr^, 79 OL
290; 8mm t. BcttiM df Me. R, B., 66 He. 280; Wa&ar t. (Mg^Bctiim. 8
Cttah. 279; /nAoUtanto </ ITeK Newbury v. Cha$e, 6 Oimy, 421| iSftattMel ▼.
Stemekam It. A, 6 AUen, 115; ;9t0nii ▼. Com^y </ ifkUfaiesB^ 101 Biass. 179;
8im«wm» T. ^1. Pm/ <fr C. Ifp Ca» 18 Minn. 184; JMnddbB r. AL Pom/ tie.
B. B. Ca.^ 19 Id. 464; OwiU ▼. i9<. Paul eic B. B. Ckk, "20 U. 28; Clefdmd
^P.B.B,Ca.r. BaO, 5 Ohio St 668; WhUe Deer Creek L Co. ▼. AMnmoHb 67
PiL BL 416; PetmBgbnmaeU. Co. v. ^tumefl; 81 Id. 414; Hcmdim^^ B.B.O0,
T. J&opp^ 61 Teac 692; i^i^ycfer t. ITeiteni U. B. B. Co.^ 26 Wit. 6a Bat in
Tndinnifc the opinioQ of a witneas may be taken as to the yalae of the lead
taken, while the damage to the residno cannot be proved by the opinions of
witneaaoB; the facts and circumstances are to be stated to the jury, who are
to draw inferences and estimate the damages: Ckff qf Logamtforir, McMOkn^
4Q Ind. 493. And in Georgia it is held that a witness cannot give his opin-
ion as to the amoont of damages sustained: Bruntwiek <fr A. B. B. Co, v.
McLartMt 47 Ge. 546. Bot eren where perscms not strictly experts are per-
mitted to give their opinions as to valae or damage, it on^t to be shown that
they possess some special knowledge of the matter. A farmer cannot testify
as to the valne of a fishing privilege, where it is not shown that ho has any
special knowledge of the matter: Botion S Me. B. B. ▼. M<nUgomery, 119
Maes. 114.
Saub 07 SnoLAR PROPXBTT TIT Samx Vioxnitt, made recently, are, it
eeemsy admissible in evidence for the purpose of aiding in determining the
market value of the land taken for pnblic uses: Mills on Eminent Domain,
aee. 170; Paine v. City qf Boeton, 4 Alien, 168; ShOUuck v. Stoneham B. B, B,,
6 Id. 115; SUmands v. Boeion, 108 Mass. 535; Moale v. Majfor etc. <^ Balti-
more^ 5 Md. 314; Pemuylvania etc. Co. v. Bunnell, 81 Pa. St 414. But in
proving the damage for a right of way, the witnesa cannot be asked at what
price a right of way was purchased throngh adjoining tracts, unless it is first
shown that there is a uniformity in the character of the lands thus brought
in qoeetian: Kimj v. Iowa M. B. B. Co., 34 lowa^ 458. And the price paid
in a particular instance in the neighborhood is not admissible, but only the
general selling-price in the vicinity: Eaa Pa. B. B. v. Hieeter, 40 Pa. St 53;
Htteburgkete. B. B. Co. v. Boae, 74 Id. 362.
CoMrxNSATioir must be Mabx pob Injury to Wholr Farm or tract, of
which part only is taken, where such farm or tract is improved and used to-
gether, notwithstanding the fact that the farm is made up of different gov-
ernment subdivisions, or the tract is composed of different lots. Thus, whers
a imrm consists of three forty-acre subdiviiions, and the railroad cuts only
two of them, compensation must be made for injury to the farm as a whole.
And where two lots in a city or town are improved and used together, and
one only of the lots is partly taken, the owner is entitled to compensation for
the entire tract And the fact that parts of the farm are separated by a road
or canal will not affect the question if such parts are used together: KeUhe-
bmrg ds SL B. B. Co. w. Henry, 79 Hi 290; Eartahmm v. B. C. B. A B. Co., 52
Iowa» 6J3; Ham v. Wiaoonrin etc B'y Co., 61 Id. 716; Wmkleman v. Du
Moines etc B'y Co., (52 Id. 11; Cwmnbu v. Dee Mwnee A 8l L. B'y Co., 63 Id.
387; HoUaigmoorlhY. Dee Momee A 8L L. li'y Co., 63 Id. 443; Hamee v. St.
Louie etc B'y Co., 65 Id. 216; Sherwood v. St. Paul etc. B'y Co., 21 Minn. 122;
Wibnee v. Mnmeapolie etc Bfy Co., 29 Id. 242; Boeton etc B'y Co, v. TumlMl,
m Unn, 461.
Whxbs Okx Railroad CoKPAinr Taxis Lands or Anotuer or crosses
\U tfuck the same principles are to be applied as in case of individuals and
120 Winona etc. R. R. Co. v. Waldeon. [Mina
Bftfearal penoos. The measnxe of damage where one raiLraad takes the land
of another is the valne of the land on the day it was taken; Textu d& 8u L.
i2L R, Co. V. Matthews, 60 Tez. 215. In assessing damages in a case when
one railroad crosses another, the total obstnietion of the road while the trades
are bemg laid, and the permanent interferenoe, by means of the crossing;
with the business of the railroad crossed, are proper elements of damage for
which compensation most be made: Cfhicoffo etc R, R. Co, v. Chicago etc R.JS,
Oo-t 15 HL App. 587. And where one railroad company seeks to acquire »
right of way across the tracks of another, although it stipulate to coostruol
all necessary frogs and crossings, yet the other may recover for injury to the
▼alue of its road and its capacity to do business: Chicago etc R, R, Co. r.
£nglewood C. R'y Co., 115 IlL 375; S. 0., 56 Am. Rep. 173.
Whesb PossaasiON or Land is WBOiroiTrLLT Takeit betobb Condxm-
VATION, and improvements are made on the land which become a part of tha
realty, it seems that the owner of the land will be entitled to have the en-
hanced value of the land taken into account in assessing his damages: United
Siatea v. Lands in Monterey Co., 47 Oed. 615; Oraham v. ConnenviUe etc R. R.
Co., 86 Ind. 463; Cohen v. St LotUa etc R R. Co., 34 Kan. 158; S. C, 65
Am. Bep. 242; Hunt v. Mietowi Pac Ky Co., 76 Mo. 115. In Cohen, v. 8L
Louie etc R. R. Co., eupra, one railroad company constructed a grade on the
owner's lands, and abandoned it» and another company afterwards built its
road upon the same grade, and it was held that the owner was entitled to re-
cover the enhanced value of the land. Valentine, J., in delivering the opin*
ion of the court in that case, said: "He is entitled to recover the exaek
market value of the Lmd upon which the grade is constructed for whatever
purpose such land might or could be used. If the grade could be used for
railroad purposes, and if the land was more valuable for railroad purposes
than for any other purpose, and if the grade enhanced the value of the land
for nulroad purposes, then the enhanced value of the land for railroad pur-
poses shoidd be taken into consideration.'' But in Oa/(/brfila Pac R. R. Co.
V. Armstrong, 46 Gal. 85, it was held that if a railroad company, under pro-,
ceedings for condemnation, enters on the land under an order of the county
judge, and constructs its road across a tract of land in such a manner that it
is imbedded in the soil and becomes a part of the realty, and if the proceed-
ings are dismissed and new proceedings for the condemnation of the land are
commenced, the owner is not entitled to have the value of the ties and iroa
constituting the track included in his damages upon the final condemnation.
And in Morgan's Appeal, 39 Mich. 675, it was held that wwk already dona
by a railroad company upon the land cannot be r^arded as a part of the
realty for the purpose of assessing the damages.
Speoctlattvb Damages oannot be Ck)N8iDEBBD in determining the amount
of compensation to which an owner is entitled. Only those drcumstanoes are
to be taken into account that immediately depreciate the value of the prem-
ises: Henry v. Ihdfuque <& Pa. R. R. Co., 2 Iowa, 288; Bangor Js P. R. R,
Co. V. McComb, 60 Me. 290; FremofU etc R. R. Co. v. W/talen, 11 Neb. 585;
Petition qfML Washington Road Co., 35 K. H. 134; Patten v. Northern Cent
B^y Co., 33 F^ St. 426; 8. 0., 75 Am. Deo. 612. Possible or probafaile
profits of the owner that might result from his enjoyment of the property
cannot be considered: Tide Water Canal Co. v. Archer, 9 GiU & J. 479; Ed-
dings v. Seabrook, 12 Rich. 504. The value of unopened mines cannot be
considered: Beaarle v. Lackawanna A B. R. R. Co., 33 Pa. St. 57. The possi-
bility of future changes in the plans of the company taking the land is too
1865.] Winona etc. B. B. Co. v. Waldbon. 121
incrased risk to an orchard by reason of leaying it motre free of aocesa to
penoos tnivelmg along tho railroad, and to tramps and employees of tlie
railroad company, is too remote and specnlative to oonstitnte an element of
damage: Kantas CUjf <fr E. R. R. Co, t. Kregeh, 32 Kan. 608. The exisi-
CBoe of a law requiring trains before crossing other lines to stop is not a
ymper element of damage; it is too vague, indefinite^ and contingent: PeoHa
ete. 7?> Co, T. Peoria ^ F, i^y Co,, 105 IlL 110; Ckieago SA.R.R.O0.W.
JoSdete. ^y Go., 105 Id. 388; & 0., 44 Am. Rep. 700.
Dakaob mm u Paid in Monst: Bloodgood v. MohmekS H, R, R. Cb.«
18 WendL 0; 8. C, 31 Am. Boo. 313, note 375; Het^dermm A N, R, R. Ox t.
Didtermm, 06 Id. 148; CUy Comuil i^f Angtuia v. MmHkt, 50 Qa. 612; Oar^
fader v, Jenmrnpa, 77 Ql. 250; NewOrlecma it Pae. i^y Co, ▼. MmreH 34
La. Ann. 536; Rice y, DanviUe tie. Co,, 7 Dan% 81; People t. Mayor cfe. qf
Rrookiyn, 6 Barb. 209; PtOmam r. Domgfae Co., 8 Or. 32&
Ihtbbxr should bb Allovimd upon AxouiTT OT Daxaoxs from the time
el the taking: Mills on Eminent Dofmain, sec. 175; City qf Chkago v. Wheekr,
25 DL 478; 8. C, 79 Am. Dec 342; Cook t. BaiUk Park CwnnCrs, 61 HL 115;
JUmM €ki, R. R, Co, v. if cCSntoci, 68 Id. 296; HolUnQtwwthY. Dee Mohiee He
ffy Co,, 63 Iowa» 443; MUkutI River etcR,R,Co, ▼. Ovpen, 8 Kan. 409; Bamr
yor A P, R, R, Co, t. McCkmib, 60 Me. 290; Bdmands v. City qf BoeUm, 108
635; Kidderr. IfthabUamte qf Os/ord, 116 Id. 165; Warrm v, Firei Di-
8lP,AP,R,R. Co,, 21 Minn. 424; Johuon v. AUantic ^ SL L, R, R,
Oa, 43 N. H. 410; Delaware eic R, R, Co, v. Buraon, 61 Fa. 8t 369; Weet
T. JiUumikee etc, R*y Co,, 56 Wis. 318; Sweaney ▼. United SuUes, 62 Id. 396.
Whxbx Raiuuud is Built on Pubuo Highway, if the fee of the high*
way is in the adjoining owner, he may recover damages for the additional
burden imposed npon his property: Kuehemam ▼. (7. C, it D, R'y Co., 46 lowa^
366; OoUaehalk v, C, B. dk Q. R. R,, 14 Neb. 550; Edetinge eie. R. R. Co, r,
ImffoUe, 15 Id. 123.
Tbx fbinoipal cask » cmD in OiUam r, Skmx City A8L P. R, R, Cbw,
26 Minn. 270, to the point that the regolating of the constniotion and main-
tenance by railroad companies of fences and cattle-gnards, at and along
their railroads, is the exercise of the police power of the state; and if in
any case the legislature may bind itself not to exercise this power, an in-
tention so to do cannot be implied, but most appear in express and nnmia-
takabie termsi
CASES
or THB
SUPREME COURT
OF
MTSSOURL
Eddy v. Liyinqston.
ftt MmoUBi, 487.]
Dnoor of Hohst, Maniutuic, TjAwn.nr of Marimtabt. ^The plam-
tiif 's agent collected money for pUintiffis and tozned it over to def endanta
at Salt Lake, to be forwarded to plaintifiii at St. Looii^ and dafendanti^
for the pnrpoee of so transmitting it^ purchaaed a draft on the United
States treasury with this money and money of their own, and sent the
same to their agent to be collected and paid to the persons entitled, in-
cluding plaLQti£ The draft was refused payment^ and defendanta were
compelled to settle for one fourth its face value. In an aoticm by plain-
tifis for failure to pay them their entire amount, it was held that an
instruction that they were entitled to recover was emmeous, that defend-
ants' contract was a mandaium, that they were bound to exercise only
good faith and due diligence, and that the determination of this fact waa
for the jury.
BaiiiMXNT, Obligations of Gratuitous Bailkr. — No general rule can be
hud down which will be applicable to all cases of gratuitous bailment^
fur with regard to the care necessary to be taken much depends upon
the circumstances of each particular case, and the character and value of
the thing bailed, and its liability to loss or injury.
Bailmxht. — In Gasss of Makdatuh whkbi SxBVxcn abx Wholly
Gbatuitous and for the benefit of the mandator, the mandatary ia bound
only to slight diligence, and responsible only for gross n^leot
The opinion states the case.
Krum and Harding, for the respondents.
By Court, Bay, J. Both plaintiffs and defendants were
merchants; the former doing business in the city of St Louis,
and the latter in Salt Lake City, territory of Utah. During
the latter part of 1855, a clerk of the defendants by the name
122
March, 1865.] Eddt v. Liyirobtq!!. 128
of Voorbia collected in Salt Lake City for the plaintiflb the
sum of fifteen hnndred dollars in coin, and haying no means
of sending the same to St. Lonis, and being unable to procure
a bill of exchange, for the reason that there were no bankers
or dealera in exchange at Salt Lake City, nor person from
whom exchange could be bought in such sums as the purchaser
might desire, deposited said money with said defendants for
safe-keeping, and with a view to their buying exchange with
it, and forwarding East by first good opportunity. The undei^
taking of defendants was without any compensation paid or to
be paid, and was a mere act of kindness and courtesy on the
part of one business house towards another.
It appears firom the evidence preserved in the bill of excep-
tions ^at the principal portion of exchange upon the eastern
states was famished by the drafts of officers upon the treasury
of the United States, in such amounts as the officers had need
of and were supposed to have authority to draw. Frequently
several persons who desired to make remittances to the eastern
states would unite their funds and purchase an officer's draft
as a means of remitting.
The defendants in this case, using the money of the plain-
tiffs depoedted with them as aforesaid, and other money of
their own, and also money of other persons, bought a draft
drawn by one Heywood, marshal of the United States for said
territory of Utah, upon the treasury of the United States at
Washington city for $16,209.93, and remitted the same to their
ag^nt in St. Louis, with directions to pay the proceeds, when
received, to the several persons entitled thereto, among whom
were the plaintiffs, to whom the agent was directed to pay said
sum of fifteen hundred dollars.
At the time said draft was purchased, Heywood was in good
credit, and his drafts eagerly sought for as a means of remit-
ting money. The draft was in due time presented at the
United States treasury for payment, and payment was refused,
upon the alleged ground that Heywood had not settled his
accounts with the government. Subsequently, and since the
institution of this suit, defendants settled with the govern-
ment by giving up the draft on payment to them of about one
fourth of its face (and petitioned Congress to reimburse them
for their loss).
The plaintiffs in this suit seek to charge the defendants for
their failure to transmit to them the money received by them
as aforesaid.
124 Eddt v. LiYiNGBTON. [Mlseouri,
The cause was submitted to the Court without a jury, and
judgment was rendered for the full amount claimed, from
which the defendants have appealed to this court.
At the trial, the court declared the law applicable to the
case as follows: —
" If the court find from the evidence that the plaintiffs by
their agent deposited fifteen hundred dollars in money with
the defendants at Great Salt Lake City, which money the de-
fendants, for the accommodation of the plaintiffs, undertook
to transmit to them at St. Louis, by purchasing therewith a
safe or reliable draft or drafts; if the defendants took the said
money and added thereto their own and other moneys, so that
the aggregate amounted to the sum of $15,209.93, and pur*
chased therewith the draft spoken of by the witnesses; if the
defendants purchased said draft in their own name or in
the name of their agents, and without the consent thereto of the
plaintiffs; and if the defendants have since held said drafts
and kept the control of the same, and have compounded or
received part payment thereof in discharge of the whole, with-
out the consent of the plaintiffs, — then the defendants are
liable in this action.''
This declaration of law, in our opinion, is erroneous. The
contract of the defendants is what is called in the civil law
mandatumy and Chancellor Kent says: "A mandate is when
one undertakes, without recompense, to do some act for an-
other in respect to the thing bailed." It is defined by other
writers to be a bailment of goods without reward, to be carried
from place to place, or to have some act performed about them:
2 Jones on Bailments, 117.
To a proper understanding of the question involved in this
case, it is important to ascertain what obligations the law im-
poses upon the mandatary, and what amount of care and
diligence he is required to exercise with respect to the matter
committed to his charge. No general rule can be laid down
which will be applicable to all cases of gratuitous bailnoent,
for with regard to the care necessary to be taken much de-
pends upon the circumstances of each particular case, and the
character and value of the thing bailed, and its liability to
loss or injury.
Kent, in his Commentaries (vol. 2, p. 569), says: *' It is con-
ceded in the English as well as in the Roman law that if a
party makes a gratuitous engagement, and actually enters
upon the execution of the business, and does it amiss, through
March, 1865.] Eddt v, Livingston. 125
the want of care, by which damage ensues to the other party,
an action will lie for the misfeasance." He also contends
that a bailee who acts gratuitously in a case in which neither
his situation nor employment necessarily implied any partic-
ular knowledge or professional skill is held responsible only
for bad faith or gross negligence, and instances the case of a
general merchant who undertook, voluntarily and without re-
ward, and upon request, to enter a parcel of goods for another,
together with a parcel of his own of the same sort, at the cus*
tom-house, for exportation, and he made an entry under a
wrong denomination, whereby both parcels were seized; it was
held he was not liable for the loss, inasmuch as he took the
same care of the goods of his friend as of his own, and had
not any reward for his undertaking; and he was not of a pro-
fession or employment that necessarily implied skill in what
he undertook. He acted in good faith, and that was all that
could be required: ShieUs v. Blackbume, 1 H. Black. 158.
Lord Loughborough, in the Shiells case, said '^ that when
a bailee undertakes to perform a gratuitous act, from which
the bailor alone is to receive benefit, then the bailee is only
liable for gross negligence; but if a man gratuitously under-
takes to do a thing to the best of his skill, when his situation
or profession is such as to imply skill, an omission of that
skill is imputable to him as gross negligence." This view of
the law is adopted by Story, who holds that, at common law,
when the contract is wholly gratuitous and for the benefit of
the mandator, the mandatary is bound only to slight dili-
gence, and only responsible for gross neglect: Story on Bail-
ments, sec 174; and the American cases, almost universally,
adopt the same rule: Tomphins v. Saltmarshj 14 Serg. & R.
275; Bearddee v. Richardson, 11 Wend. 25 [25 Am. Dec. 596];
Fo^r V. Essex Bank, 17 Mass. 497 [9 Am. Dec. 168].
The defendants, though acting gratuitously, having received
the money of the plaintiffs and undertaken to transmit it to
them, were bound to i>erform their undertaking in good faith,
and with due diligence and attention adequate to the trust
reposed in them; and this question of diligence is one of fact,
to be tried like any other fact in the case, and upon the deter-
mination of which depends the liability of the defendants;
but in the declaration of law made by the court below this
question of diligence, the only real question in the case, is
entirely ignored, and the defendants made liable, although
they may in good frdth, and with due care and attention, have
126 DouGHBBTT «. MATTHSwa. [Missouri^
attempted to transmit the money by means and in the nuuir
ner most usual in such caseSy and which a man of ordioaij
prudence would be likely to adopL
For this errori the judgment will be leversed and the eanm
remanded.
Dbtdbn, J., concurred.
Qeatui'ivuh RattiIs is Bouhd oslt io Km SIM mm 8ubbt Ihumo%
■ad IB liable only far groM niQKlaet: £mwk$ t. AHemtie ^ 8L L. J2L JSLCb.* 61
Am. Dec 294. An act dona gratia ia called mandate or mamdafmm, A
mandatary ia held only to alight diligenoe, bat la responaible fur breaeh of
ordera, ignorance^ groM negligence, or frmd: Conner ▼. Wkiiim, 65 Id. 76l«
and note.
IhiJOBraa Rbquibid is PaopoBiiomu) io V^^us of property bailed or
delicaoy of operatioQ to be performed: Cammr ▼• Whtomt 66 Am. Dao. 761,
andnotOi
DOUGHBBTY V. MaTTHBWS.
rasMia8ouBi«6aOL|
No ComixKBaiioH — PnoMnn or Assionor of Leasb io Pat Rsht v
Lahdixibd would Cohsknt to Absigkiibrt. — Where there ia nothing
in a lease reqniring the aaaent of the landlord to ita aiwignment» an agree*
ment by the tenant, who wishes to assign the lease, that he wiU pay the
rent if the landlord will consent to the assignment, is Toid aa being wilii-
oot conaideration. Even if the partiea believed that aoeh oonaent waa
necessary, it makes no differenoe.
No JuBiSDioTiON. — Land Coubt had Jubibdioiioh to enforce the righta
and obligations of lessors and lessees, and their respective nnsigninna, bj
the terms of the statnte. HeU, that anch coort haa no joriadietion of an
action against a tenant who haa assigned his lease, and haa agrsed to
aasnre the payment of the rent by the asHignee, for a breach of aneli
agreement.
Vabianck. — Where plaintiff dedarea upon a parol promise^ and the prool
shows that his action is baaed npon a sealed instmmenti the varianoe ia
fataL He cannot act np one canse of action in his petition, and on the
trial prove another and different one.
No Vauanob. — Where plaintiff declared that defendant had osmwierf to paj
certain rent, and the evidence showed that he had promised to aatwre it^
there is no variance^ aa it ia sufficient to allege a promiae acoording to ite
legal effect.
Thb opinion elates the case.
EoUidayy for the appellant
Orayj for the respondent.
By Court, Holmes, J. The motion in arrest brings up the
question of the 8u|^ency of the petition. The
Jmia^ 1866.J DonaHBBrr «. ICatthswil li7
gmindB of demnner were these two: 1. That the petttfam did
not state ftots 8ii£Bcient to cooetitate a catueof actioo; and
1 That the ooart had no jnriediction of the eabjeot of the
actioQ.
1. The canee of action is fimnded open a parol contract to
pay the rent reserved in a lease fix>m the pUuntiff to Edwud
A. Todori for a term of three years from the first day of Jann-
aiy, 1859, at a yearly rent, payable monthly on the first day
of each month thereafter. It is stated that the lease was in
writing, and signed by them, and that it was not to be assigned
without the consent of the lessor in writing. This averment
does not by its terms extend beyond the immediate parties to
the lease, and it cannot^ by any £ur legal intendment, be held
to include assignees. The lease is not stated to be under seal,
and therefore the case does not come within the doctrine of
covenants running with the land or thing demised: 1 Smith's
Lead. Cas. 107, 167. It is then stated that on the fifth day of
April, 1860, Tudor, the lessee, assigned the lease to the de-
fimdant; that the defendant, desiring to assign the lease to one
Greenleaff requested the consent of plaintiff thereto, and that
his consent was given on the express condition that the de-
fendant would assume the prompt payment of the rent
reserved; that in consideration of such consent, the defendant
accepted the condition, and on the twenty-sixth day of April,
1860, assigned the lease to Oreenleaf; and that on the first
day of September, 1860, there was six months' rent due, for
wUch he asks judgment. It thus appears on the face of the
petition that no part of the rent sued for fell due during the
time in which the defendant held the premises as assignee,
and that the alleged promise was for the payment of rent
which was to fell due during the time of the second assignee,
and for which, if the lease were assigned, the defendant would
not be liable; and the consideration for this undertaking is
merely the consent of the plaintiff to the assignment of the
lease. The plaintiff proceeds upon the assumption that the
assignee could not himself assign the lease without the con-
sent of the lessor, but it is not made to appear by anything
contained in the petition that such consent was at all neces-
sary, nor that the giving of it was any advantage to the de-
fendant or any detriment to the plaintiff. It may be presumed
that the parties acted under a mistaken impression concern-
ing it; they may have supposed that the consent was required
when in roAlity it was not. A promise of this nature is with*
128 Dougherty v. Matthews. [Misflouii^
oat any valuable consideration, and merely multtm p(ictum.
Story on Contracts, sec. 429; Freeman v. Boynton, 7 Mass. 488;
Cabot y. Haskins, 3 Pick. 83; Kaye t. DuUon, 7 Man. & 0. 806;
Cooifc V. EUiott, 34 Mo. 587.
2. The question of jurisdiction is determined by the same
Tiew of this petition in reference to the subject-matter of the
action. It is to be presumed that the claim of jurisdiction
was based upon the following clause of the second section of
the act establishing the land court (Rev. Code, 1855, p. 1592):
'* For enforcing the rights and obligations of lessors and lessees
and their respective assignees." In order to bring the case
within this clause, it must be made liable to appear by the
petition that the obligation which is the ground of the action
arose out of the lease, and that it was assumed by the defend-
ant by virtue of some contract created by the lease or some
liability incurred under it, and in his character of assignee of
the lease. It cannot be extended to a special contract which
is wholly independent of the lease. In any view that can be
taken of this petition, it would have amounted to nothing
more, even if a sufficient consideration had been stated, than
a special undertaking on the part of the defendant to assume
the payment of rent which was to become due from another
person. As an action for rent merely, as a money demand
arising out of such special contract, it is clear that the case
did not come within the jurisdiction of the land court: AdamM
V. Blecker^ 33 Mo. 403. On both these questions the demurrer
should have been sustained.
3. On the trial the plaintiff offered in evidence a lease un-
der seal, and also a written agreement indorsed thereon, to the
effect that the plaintiff gave his consent to the assignment of
the lease on condition that the defendant would assure the
prompt payment of the rent reserved in the lease. This agree-
ment was signed and sealed by both parties. The defendant
objected to the admission of it in evidence, on the ground of
variance. That the agreement read ''assure," and the petition
'' assume," was immaterial; it was enough for the plaintiff to
state it according to the legal effect; but there was a &tal
variance and a total want of correspondence between the
allegations and the proofs. If the plaintiff intended to rely
on this agreement, he should have founded his cause of acticm
upon the instrument, and stated it in his petition as a oontraci
ander seaL He cannot set up one cause of action in his peti-
tion, and on the trial prove another and different one: i2o6iv»-
9on V. Riee^ 20 Ma 229; Pentenneau v. Pensenneau^ 22 Id. 27.
July, 1865.] R1CHABD8QN «. Fabmsb. 121^
As the judgment will be reversed on other grounds, it
becomes unnecessary to consider at large that part of the
defense which related to the proceedings in the attachment
suit. It will be sufficient to observe that we discover no
material error in the ruling of the cotrt below on that sub-
ject.
The other judges concurring, the judgment is reversed and
the cause remanded.
YixEAHOB^ What CtoHsmvrsB! Xorier ▼. We&teoU, 82 Am. Deo. 404; Jhh>
Wf ▼. Beaner, 82 Id. 326; MaOtny r. Leach, 82 Id. 626» and noiet to theM
Iv InmumDiT bi Dbolabxd on Acoqbddio to rrs Liqal Efwect, thai
oflbcfe moBt be truly stated. If not, there is a variance, and the instrament
cannot be giren in evidence: Spongier ▼. Pngh, 74 Am. Bee 77. An instm-
msnt set oat in the pleadings, thon^ called by a wrong name, is to have
eOeefc according tothe intention of the paxtiM: Tkamkm t. MtUquhim, 79 Id.
648.
BlOHABDSON V. FaBMEB.
rSS ICXSSOTTBI, 8S.]
huMSuar 07 Dobxant Pabtnkb. — Where there is a dcraiant partner, a
eredit wiQ not be presumed to have been given on the sole and separate
responsibility of &e ostensible partner, bat wiU bind aU for whom the
partner acts, if done in their bosiness and for their benefit^ and the dor-
mant partner may be saed when discovered.
Gbsditor mat Take iNDrvmuAL Kotb or Partvbr. — Where the part-
ners are all known, and the existence of the partnership broaght home
to those dealing with them, the latter may take the iadividoal credit of
any member of the firm if they so choose. Parties have a rightto make
their own contracts, to assome extraordinary liabilities, or to take infe-
rior secarities where they might have insisted on greater ones.
CiraiD BY Vebdict. — In an action on a partnership note, where the exist-
ence of the partnership is not sufficiently pleaded, after verdict^ a mo-
tion in arrest of jadgment will not lie apon that ground, as the defect is
cored by verdict.
Wbeit DxncT nr Plbaddio Cured bt Verdict. — Where there is a de-
fective statement in a pleading which would have been fatal upon demur-
rer, and where an issue has been joined which necessarily required the
proof of such defectively stated fact, and where the verdict could not
have been rendered without such proof of such fact, the imperfection or
omission is cured by verdict.
Kkwlt D18OOVSRBD Evidence — New Trial. — Applicant for new trial
apon ground of newly discovered evidence must show that his failure to
disoover the evidence before was not attributable to any negligence, and
that he used due diligence.
Aic Dec Vol. LXXXVm-9
180 RicHABDBON V. Fabmbb. [Missoori,
Thx opinion states the oase.
Shenoood and Ycwng^ and Swing and Jfntfi finr the appel-
lants.
Krum and Decker^ and Lindenboweff for the respondents.
By Court, Wagneb, J. This was an action brought in the
Greene County circuit court by the respondents against the
appellants. The petition is founded on two notes, and con*
tains two counts. In the title to the cause, Jopes and Farmer
are declared to be partners in trade, doing business under the
firm name of W. H. Jopes. The first count then avers thai
defendants executed the note in their firm name, in payment
for a bill of drugs and medicines bought by them of plidntiflb
and used in their business. The second count is the same aa
the first, except that it is alleged that the defendants executed
the note sued on in their firm name of W. H. Jopes.
Jopes did not appear to the action. Farmer filed his answer,
denying the existence of the partnership under the name and
style of W. H. Jopes, or under any other name or style, and
averring that the notes sued on were the separate and indi-
vidual notes of the said Jopes, and executed for his sole use
and benefit. A jury was impaneled to try the issue, and aft
the instance of the plaintifls the court gave several instruc-
tions, the fifth and last of which is as follows: —
''A dormant partner is liable, whenever found, for goods
purchased and used for the benefit of the firm, and the accept-
ing by plaintiffs of the notes sued upon in payment for a bill
of drugs purchased by W. H. Jopes of them, and the accept-
ance of said note in payment therefor, if said drugs were
used for the partnership benefit of W. H. Jopes and W. B.
Farmer, may not be an acceptance of the liability of W. H.
Jopes alone, or an exclusive credit to him, but was binding
upon all for whom W. H. Jopes acted." To the giving of all
of said instructions the defendants at the time excepted.
Defendants then asked the court to give several instructioofl
in their behalf, all of which were given except the first; and
to the decision of the court in refusing to give said first in-
struction they also excepted.
The jury found a verdict for plaintiffs, and defendants mada
their motion in arrest of judgment, and also a motion for a
new trial, both of which motions were overruled by the courts
and defendants duly excepted, and Farmer now prosecutes hit
appeal in this court.
/dIj, 1865. j Richardson v. Fabmbb. 181
1. The instructioiis given for plaintiflB bdow, lespondeDts
here, taken together, fairly presented the htw to the jury; the
first instruction asked by defendants, which the coiurt le-
funed, whilst enumerating a correct abstract principle of htw,
18 not applicable to this case; the other instructions prayed
for, and which were given, were of the most Cekvorable charac-
ter. The great mistake made in the line of argument pursued
by the appellants' counsel is not paying proper regard to the
obvious distinction between partnerships where all the mem-
bers are open and notorious, and those where some are silent
or dormant. Parties have a right to make their own contracts
to assume extraordinary liabilities, or to take inferior securi-
ties when they might have insisted on greater ones. When
ihey are fully cognizant of all the facts, and a specific credit
^ven, or a personal liability incurred, the law will not attempt
to interfere and set up a new agreement for them, but will
leave them to abide by their own engagement. The maxim,
Modus et conventio vincunt legem^ then fitly applies.
The case of Sylvester v. Smith j 9 Mass. 119, merely decides
that where an agreement was entered into between two per-
eons, one to find the stock and the other to do the labor, and
the profits 'were to be divided among them equally, an action
might be maintained against the person buying the stock,
notwithstanding the other person, who was to perform the labor,
was not joined with him; Judge Parker saying that, '' not-
withstanding a copartnership, either of the copartners may
undoubtedly contract on his own account, and make himself
^ble for merchandise bought for the copartnership account,
if the vendor chooses to accept him." In Loyd v. Preshfieldf 2
Car. & P. 325, Abbott, C. J., held that if money be lent to one
partner on his individual credit, the tact that it is applied in
discharge of the liabilities of the firm will not enable the lender
to sue the firm for its repayment. In Le Roy v. JohnBon^ 2
Pet. 186, Hoffman and Johnson were copartners in trade; a
bill of exchange was drawn by Hoffman after the dissolution
of his partnership with Johnson, and the proceeds of the bill
went to pay and did pay the partnership debts of Hoffman and
Johnson, which Hoffman on the dissolution of the firm had as-
sumed to pay; it was decided by the court that the holder of
bill, after its dishonor, could have no claim on Johnson in con-
sequence of the particular appropriation of the proceeds of the
bill. It was admitted that if one partner contract with a
third person in the name of the firm after the dissolution, but
i
132 RicHAEDSON V. Fabmbb. [Bfissoori,
the {act of snch disBoluiion not being made public or known
to Bnch third person, the law would consider the contract as
being made with the firm and on their credit But when the
partner mad« an agreement or entered into a contract with
another in his individual name, and upon his sole personal
responsibiliiy^ it was of no importance for the other to know
that the partnership was dissolved, because he was dealing,
not with the firm and upon their credit, but with the individ-
ual with whom he was acting, upon his own credit.
It will be perceived that in all the foregoing cases the part-
nerships were known; their existence brought home to the
knowledge of the parties dealing with them. They were placed
in a situation to exercise their right of election, and were un-
questionably bound by their own deliberate acts. They were
not deprived of the right of choosing their debtors, and there
is no hardship or injustice in holding them to their choice.
But in the case of a dormant or secret partner, while the credit
is manifestly given to the ostensible partner, because no other
is known to the party, yet the credit is not deemed to be ex-
clusive, the creditor having had no opportunity to elect or
choose his debtor.
The credit will not, therefiire, be presumed to have been
given on the sole and separate responsibility of the ostensible
partner, but will bind all for whom the pawner acts, if done
in their business and for their benefit: Story on Partnership,
sec. 188; 1 Story on Contracts, sec. 226; Thomson v. Daver^
port, 9 Bam. & C. 78; Bracken v. March, 4 Mo. 74; Saimond
V. Crown & E. Mills, 2 Met. 319; U. 8. Bank v. Binney, 5
Mason, 176; Winship v. Bank of U. S., 5 Pet. 529.
2. The motion in arrest of judgment brings up the question
of the legal sufficiency of the petition. It is contended by the
appellants' counsel that the petition is fatally defective, be-
cause there is no express averment that Farmer and Jopes
were copartners, and as such executed the notes by the name
and style, etc., of W. H. Jopes. In the title the partnership
is well set out, but in the body of the petition it is only charged
that they made and executed the notes sued on in their firm
name, and we have now to decide whether this defective and
insufficient allegation is cured by verdict. The rule in refer-
ence to this subject is believed to be well settled, but the au-
thorities difier in its application. In Stephens v. Frampton, 29
Mo. 263, no partnership was alleged in the petition; the de-
fiondant answered, denying the partnership, and also the exe-
Jnly, 1865.] Richardson v. Farmer. 133
cation of the note; the court helow having found for the
plaintiff, this court affirmed the judgment, saying that the
defendant was not aggrieved by the omission.
It is said in the court of king's bench: " Wheie matter is so
essentially necessary to be proved, that had it not been given
in evidence the jury could not have given such a verdict, then
the want of stating that matter in express terms in a declara-
tion, provided it contains terms sufficiently general to compre-
hend it in fair and reasonable intendment, will be cured by a
verdict; and where a general allegation must, in fair construc-
tion, so far require to be restricted that no judge and no jury
could have properly treated it in an imrestrained sense, it may
reasonably be presumed, after verdict, that it was so restrained
at the trial." And Mr. Sergeant Williams says: '' Where there
is any defect, imperfection, or omission in any pleading,
whether in substance or form, which would have been a fatal
objection upon demurrer, yet if the issue joined be such as
necessarily required on the trial proof of the facts so defect-
ively or imperfectly stated or omitted, and without which it is
not to be presumed that either the judge would direct the
jury to give or the jury would have given the verdict, such de-
fect, imperfection, or omission is cured by the verdict." And
this rule has been well established and followed by our own
adjudications: Jackson v. Pesked, 1 Maule & S. 234; 1 Saund.
228, note 1; Froet v. Pryor^ 7 Mo. 314; Palmer v. Hunter, 8 Id.
512; SJwier v.Van Wormer, 33 Id. 386; Addington v. Allen, 11
Wend. 374; Gray v. James, 1 Pet. C. C. 476; Bayard v. Mal-
colm, 2 Johns. 550 [3 Am. Dec. 450]; 2 Rev. Code, 1855, p.
1255, sec. 19.
And now, in the case here, though the petition was obviously
defective, the whole matter was submitted to the jury under
proper instructions from the court; without proof of partner-
ship they could not have found their verdicts; they were the
rightful triers of the fact, and we do not feel disposed to dis-
turb their findings.
3. The appellant, in his motion for a new trial, states that
since the trial he had discovered new testimony materially
affecting his rights, and tending to diminish the amount which
respondent ought to recover several hundred dollars. In sup-
port of this motion, he made an affidavit stating in substance
that at the time of the execution of the notes sued on W. H.
Jopes was indebted to respondents in the sum of $1,841.42,
and that being so indebted he gave his notes for that sum, but
134 Richardson v. Farmer. [MiBoonri,
by mistake at that time gave his other note for half that
sum, to wit, $920.72; that be was never advised of the mistake,
and could not discover it by any possible diligence, and never
discovered it till after the trial had ended. To further support
this, Jopes, who was also called as a witness, made his affidavit
corroborating the statement of the appellant Farmer, and
alleging that he was totally ignorant of his being sued on two
notes till he was called on the witness-stand. Does this ap-
plication disclose such facts as will entitle a party to a new
trial? Is the requisite diligence here exhibited? The part-
ners were joint defendants and sued as copartners; they were
regularly served with process; they had ample time, and it
was their business, to consult together and advise each other
of everything that was necessary and essential in their defense.
When a person receives notice of trial, he is at once put on
inquiry. The period of notice is always sufficiently ahead of
the sitting of the court to afford parses full opportunity to
ascertain the precise situation of their cause, and what testi-
mony they will require on their trial. And courts will not aid
parties where they have failed to take the requisite steps to
procure their evidence, and more especially where they have
been guilty of unpardonable neglect. Before they ask the
courts to help them, they must have evinced a disposition
to help themselves.
To interpose in this case, and grant a new trial, would be
setting a precedent that would unsettle well-established prin-
ciples, lead to great abuse and interminable litigation. If a
hardship in this case is worked to the parties, it is justly im-
putable to their own laches.
We see no error in the court in overruling the motion*
The judgment is affirmed.
The other judges concurred.
Pabtnsb Alonb d Lxablb upon all contnoti made by himself npoa hia
cwa ezdiiaiTe oreditv and even thoogh the paztnenh^ obtain the boiefit ol
the contract it will not be liable: North Pennsffhania Coal Ca,'8 appeal, 84
Am. Deo. 487. If there ia a dormant partner the case will be diffinent: Id.
DoBMAirr PABTKEBa. — The law relating to dormant partaera is discussed
in the note to Brooke r. Washington, 66 Am. Deo. 147.
Cubed bt VEBDior. — A verdict in favor of pleader establishes the truth
•of all his material allegations of fact» and nothing more; and when a fact
material to the plainti£f 's right of recovery is omitted altogether from his
declaration, or is not so connected with other facts which are stated that the
latter cannot be proved without proving the former, the verdict of the jury
July, 1865.] Laict v. Bubu. 186
notiung in regard to rach omitted feot^ and ONUioi aid the declai»*
MeCmie ▼. Horwiek {% Oat Co,, 79 Am. Deo. 278; and oaoea refened
Ian note.
Thx PBorciFAL CASK IB GHXD in Jonu ▼. Loudemum, 89 Mo. 287, where
Ike eoort oay that the law ia well aettled that although a petition may ho
deleetiTe, yet if it appear after verdict that the ▼erdict ooold not have heen
pvcn or the judgment rendered without proof of the matter omitted to bo
elated, the defect will be cured, and the judgment will not be arreated. It
ia cited to the aame point in Karchwal ▼. King, 44 Id. 401. It ia alao dted in
JWlieeff ▼. Laffoou, 77 Id. 26^ to the point that a new trial will not be granted
en the ground ol anpriae where there ia any degree of negliganoe in tho
Lamy v. Bubb.
116 MiBBouxi. n.]
Buia Bblashto to Powota or AnoBKBT d tess Toweb, man
n Pun«»»i> WITH LmoAL Siuorarna, and the agent oaa neither go bo-
yond it nor beaide it; in other worda^ the act done mnat be legally iden-
tical with that antiioriaed to be done.
]■ FowxBs OF AnoBinET, FBiHczpiii ArTROBixT iHOLimiB All Mnxun
PowxBB which are neoeeaary to carry it into effect A direction or an-
tiuirity to do a thing ia a reaaonabie implication of the powera neceaaary
to aooompliah it^ unleaa there is a apecial reatriction, or unleaa an inten*
tifln to the contrary is to be inferred from other parta of the authority.
PowxB 07 Attobhkt Hxld to CoHixR PowxK TO TaAHsm
PnoFSBTT OF Grastos fos BiNxiiT OF BI8 GBXDITQB8. Where a
nan who waa about to leave home, without much proapect ol returning^
made a power of attorney to another, giving him full authority to trana*
act all buameaa of every kind and deacription, to collect and receipt for
an numeya due^ and to aell and diapoae of all hia property, there can bo
ao doubt that the main purpoae to be aocompliahed waa tiie payment ol
Ida debta, and the agent may make a deed of tmat to a third penon to
■ecore and pay off the oreditora of tho
Thb opinion states the case.
Ifvir and Draffeuy for the defendants in error.
AdamSf for the plaintiff in error.
By Coort, Wagner, J. Plaintiff sned one Horace H. Brand
ia attachment in the Cooper circuit court, and recovered judg-
ment, and Burr was summoned as garnishee. In the spring
of 1861 Brand joined the rebel army under Oeneral Sterling
Price, and left his home in Cooper County in this state. In
July in said year, whilst in Newton County in this state,
he made and executed a power of attorney to Barton S. Wil-
son of BoonyiUe, in the said county of Cooper, for the purpose
136 Lamy v. fiuBB. [Missouri,
of settling up his business. The power of attorney is in theise
words: —
'^ Enow all men by these presents, that I, Horace H. Brand,
of the county of Cooper and state of Missouri, have made,
constituted, and appointed, and do by these presents make,
constitute, and appoint. Barton S. Wilson, of the city of Boon*
ville in said county, my true and lawful attorney in fact for
me and in my name, to transact all my business of every
kind and description, to collect and receipt for all moneys dae
and owing to me, and to sell and dispose of all my property,
real and personal, for such price and on such terms as he may
choose whenever he may think it advisable to make such sale,
hereby ratifying and confirming all such acts of my said at-
torney. Given under my hand and seal this eighth day of
July, A. D. 1861. Horace H. Brand. (Seal.) " Which in-
strument was duly acknowledged before the clerk of the circuit
court of Newton County.
Wilson, the attorney under the foregoing power, took posses-
sion of most of the personal property of Brand, and conveyed
the same by deed of trust to Burr, the garnishee, to secure and
pay off certain creditors and sureties of Brand.
There is but one single point presented here for decision,
and that is whether the letter of attorney authorized the exe-
cution of the deed of trust. The general rule is, that the
power must be pursued with legal strictness, and the agent
can neither go beyond it nor beside it; in other words, the act
done must be legally identical with that authorized to be done.
But in all cases the authority should be construed, and the in-
tention of the principal should be ascertained, in reference
to the purpose of the appointment, and a consideration of the
object which the agent is directed to accomplish will either ex-
pand the powers specified as a means of executing it, or limit
the exercise of the most general powers conferred. Accord-
ingly, it is a general maxim, applicable to special and limited
agencies, as well as those which are more comprehensive and
discretionary, that, in the absence of special instructions to
the contrary, and in the absence of such prescription of the
manner of doing the act as implies an exclusion of any other
manner and authority or direction to do an act, or accomplish
a particular end, implies and carries with it authority to use
the necessary means and inducements, and to execute the
usual, legal, and appropriate measures proper to perform it.
The principal authority includes all mediate powers which
July, 1865.] Lamy r. Burb. 137
are necessary to carry it into effect. A directioQ or authority
to do a thing is a reasonable implication of the powers neces-
sary to accomplish it, unless there is a special restriction, or
unless an intention to the contrary is to be inferred from other
parts of the authority: 1 Am. Lead: Cas. 563; Rogers y. Knee*
land, 10 Wend. 218; Peck v. HarrioU, 6 Serg. <t R. 145 [9 Am.
Dec. 415]; Bayley v. WUkins, 7 Com. B. 886.
It will be seen that the power of attorney in this case is of
the most oomprehensiye character; it gives the agent full
authority to transact all business of every kind and descrip-
tion, to collect and receipt for all moneys due, and to sell and
dispose of all property, both real and personal, for such price,
on such terms and at such time as he might deem advisable.
The attendant circumstances leave little room to doubt what
power was intended to be given.
Brand was absent from his home, with no intention or pros-
pect of returning; he had left a large amount of business un-
settled,— property liable to go to decay and be destroyed, and
creditors anxious to secure their debts. He therefore exe-
cuted a power of attorney, giving his agent full authority to
transact all his business of every kind and description; and
this power must be interpreted, and the true intention arrived
at, by a direct reference to the nature of the business to be
transacted. /
There can be no doubt that the main business to be trans-
acted was the application of the property to the payment of
the debts. If there was no intention to invest the agent with
authority to pay off the debts, why the enlarged and general
power to transact all business in addition to the power to sell
and dispose of property? But if the power was given to pay
debts, was the making of the deed of trust a proper execution
of it? We think it can be implied in this case without doing
violence to any legal principle. The deed of trust was cer-
tainly just and equitable to the creditors, as it distributed the
proceeds of the property ratably among them. If it was a fit
and appropriate mode of carrying out the purpose of transact-
ing all the business, it was competent to resort to it.
In Bank of Missouri v. McKnighty 2 Mo. 42, the words
used in the power were, '^ to devise, lease, and let a certain lot
of ground, for a term of years not exceeding twenty, for such
rent^ or otherwise to sell, grant, or convey absolutely in fee-
simple"; and this court held that a power to make a mort-
gage was included. The object then was to obtain money, and
138 NoBTH MissouBi R. R. Co. v. Stephens. [Misaonri,
the cotirt rilfcy: " The intention of the party giving the power
should' in all cases govern the construction to be given to it,
end determine the extent of the authority."
There is another objection urged by the defendant in error
here, and by which we understand the decision of the court
below was mainly influenced, and that was that Wilson could
not delegate his authority, as the letter of attorney contained
no power of substitution. The question of delegation of power
18 not involved. Wilson delegated none; his powe^ ceased
with the execution of the deed of trust; that instrument car-
ried with it the whole legal title; and he, as trustee in his own
name, and as owner of the property, — not as agent for an-
other,— was authorized to sell it absolutely, and apply the
proceeds to the purposes created in the trust.
The judficment is reversed, and the cause remanded.
The other judges concurred.
PowKRS ABB TO SB Ck>N8TR(TBB in light of the poTpOM whicfa the agent
4xr depositary is appointed to aooomplish: Mcsjfor efc. qf Baltimore ▼. MejpnoidM,
83 Am. Dec. 536. Where one in giving a naked power pzescrihes in the in*
stroment creating it the manner of ezerdsing it, every requirement must he
strictly complied with, or the power does not arise: Bice v. Tcufendarp 83 Id.
778. In the notes to these cases will be found other oases referring to the
% eonstruction of powers of attorney.
North Missouri R R Co. u Stephens.
186 MISSOUBI, 160.J
9nFULATioir bbtwbbn Attobnets is Case, that Judgxbrt TKBumr
SHOOLD BB Samb AS IS Akotheb Cas^ thbn Pbndino, in which the
same question was involved, is valid, and will control the judgment of
SQch case. That the question involved in the case in which the stipula-
tion was given has been changed by the repeal of an act of the lagis*
lature is immaterial.
AnoBNBT HAS PowBB TO Bdtd HIS CuBNT ABOUT HIS Casb by many
entries he may make in the docket, — agreements about continuances, ad«
mi—indni about evidence, or the general conduct of the triaL He may
submit to arbitration a case actually pending in oourt» but has no right
to enter into a compromise without the consent of his Alient.
Thb opinion states the case.
CarVf for the appellant.
Taylor and OUstrap^ for the respcmdent.
Aug. 1865.] North Missouri R. R. Co. v, Stephens. 1S9
By Court, Wagneb, J. Plaintiff brought suit against the
defendant, in the circuit court of Macon County, on subscrip-
tion to stock. Several other suits precisely similar were
brought at the same time, in the same court, against different
defendants, and among them one by the name of Winkler.
The same defense was made in each case. The attorneys for
the respective parties entered into a written agreement, stating
that, as the same facts and the same questions arose in all the
causes mentioned, they would therefore abide the final judg-
ment that should be rendered in the case of the plaintiff
against Winkler; and that a like judgment should be rendered
in each of the several cases. Upon a trial of the cause in the
circuit court, judgment was given in favor of Winkler; from
which the plaintiff appealed to the supreme court, in which
court the judgment was afiSrmed.
As preliminary to the main question, it may be necessary
to state that the defense relied on, and which prevailed, was
the violation by the North Missouri Railroad Company of the
act of 1855 to prevent illegal banking: Rev. Code, 1855, p. 286,
sec. 9. After the decision in the supreme court, so much of
that act as refers to this controversy was repealed: Sess. Acts,
1863, p. 5. The court below rendered judgment for defendant
in accordance with the above agreement, and after an inef-
fectual attempt on behalf of plaintiff to obtain a new trial
and arrest the judgment, the cause is appealed to this court.
The position assumed by the appellant's counsel is, that
the legislature having repealed the penalty contained in the
act of 1855, a valid and subsisting obligation exists against
the respondent, and that the attorneys had no authority to
enter into the agreement, and that it is therefore void. The
whole question is involved in the binding force and validity
of the agreement. How far an attorney at law may bind his
clients by his arrangements, in a case without special instruc-
tions or authority, is not definitely settled. There is no doubt
that many entries which he might make on the docket —
agreements about continuances, admissions about evidence, or
the general conduct of the trial — would bind his client. It
18 said, in many cases, that he has a right to submit a cause
to arbitration; but this doctrine has been restricted in others
to suits actually pending in courts; whilst it is generally de-
oied that he has a right to enter into a compromise without
authority from his client, either express or implied. The
arrangement in this case is not a compromise according to thu
140 North Missouri R. R. Co. v, Stephens. [Missouri,
usual acceptation of that tenn, for that generally applies to
releasing a part of the debt, taking land instead of money,
or changing the nature and character of the thing to be re-
covered; it comes nearer within the general management of
the case.
In Union Bank of Oeorgetovm v. Oeary^ 5 Pet. 99, suit had
been instituted upon a promissory note against the drawer
and indorser, and the attorney for the bank requested the in*
dorser to confess a judgment on the note, assuring her, if she
did so, and did not dispute her liability, the bank would im-
mediately proceed, by execution, to make the amount thereof
from Merril, the principal debtor, who (he assured her) had
sufficient property to satisfy the same; and advised her that
she would thus be saved from liability for the debt, — pre-
vailed on her to make no defense against the suit at law, but
voluntarily to confess a judgment thereon. No execution was
issued against Merril according to the terms of the agree-
ment with the attorney, but the bank continued to indulge
him, and permitted him to leave, taking with him aU his
property, beyond the process of the court. The judgment
debtor filed her bill for the purpose of obtaining an injunction
to restrain the bank from proceeding to collect the money on
the judgment. The bill charged that, at the time of confess-
ing the judgment, a valid legal defense existed against said
suit which would have defeated the bank's right to recover on
the indorsement, the bank not having made the due and legal
demand and given due and legal notice so as to bind the in-
dorser; that the attorney of the bank well knew the same,
and to prevent the complainant from contesting the same,
made the proposition above stated, etc. The bank, in its
answer to the complainant's bill, denied that its attorney had
any authority to hold out any inducement to complainant to
confess judgment, or make any promises, as set forth in the
bill; and as a further defense, contended that the agreement
was without consideration and void; but the court held that
the attorney had authority to make the agreement, and that
the consideration was sufficient even though a subsequent de-
cision showed that the defense of the indorser could not have
prevailed.
There are many marks of similarity between the two cases.
It the absence of any adjudication of the question involved
in this case, the rights of the appellant were at least douoi.
ful. Should the suits be regularly litigated step by step, and
Aug. 1866.] FfixiDENHiErr v. Eomundson. 141
ultimately detennined adverselyy the costs accming in tho
several eoorts woold, of coarse, have been a charge or a bur-
den; the arrangement was therefore highly judicious and
oonyenient. But it is shown by the decision of this court in
the Welker case that respondent had a good and substantial
defense to appellant's cause of action at the time the agree-
ment was entered into, and his rights cannot be prejudiced by
the subsequent repeal of the law, when he was precluded from
prosecuting his defense by an agreement solemnly entered into
in good fJEuth. The facts show that he suffered material in-
jury, and that is a sufGicient consideration; and to permit a
judicial decision now to annul an agreement made under a
different state of things would be sanctioning bad faith and
setting a most mischievous precedent. In addition to this,
the case was permitted to slumber several years in the court
below, and no act of the appellant ever manifested an inten-
tion of disturbing the arrangement entered into until the legis-
lature repealed the law on which respondent relied for a
defense. The length of time that intervened when no action
was taken would warrant us in the presumption that the
client had ratified the act of the attorney. Every considera-
tion of justice, equity, and moral obligation dictates that
the stipulation of the attorneys should be carried out and
enforced.
The other judges concurring, the judgment is affirmed.
Attobhxt xat Bnn> ms Cluht st Sitfulation even before suit
bron^bt: Heffemum ▼• Burt, 71 Am. Dee. 445. The question of the pow-
ers of an attorney at law to bind hie dient is disonssed in its entire breadth
m the note to Clark ▼. JiandaU, 76 Id. 256-265. In this note the prindpsl
esse is cited and its doctrine discossed.
The frincipal case is gfted in Onmley v, WM, 48 Mo. 592, to the
point that an attorney employed in the nsoal way to oondnct a suit has in
general no authority to enter into a compromise without the sanction, ex-
press or implied, of his dient. It is also dted in ^iiito ▼. PAe^ 79 Id. S06^
to the point that an agent must follow instructions given him.
Fbeidenheit V. Edmundson.
L86 MISBOUBI, 237.1
Mbasubs ov Damaqbs iob Foboiblt Breaking into Plaintiff's Stoker
putting him in fear, and taking away his goods, is the value of the
goods, with legal interest thereon from the time of taking, and exem-
plary damages for the breaking into his store, the t^'^eatening ol liii
lii% and the injury to his business.
142 Fbeidsnheit v. ED]CXJ2a>80N. [MiBsouriy
BoaCPLABT DaMAOB would SxnC to MxAH, ZH OaIOKABT AHB FbOPBB
Ssru of the word, such damagM m woold be a good* roond ooinpene»>
turn, and an adequate reoompeiue for the injiixy eiutaiiiody and audi as
ndf^t aerre aa a whbleeoine OTampla to n^ben in
Thb opinion states the case.
H. M. and A. H, Vmesj for the plaintiff in error.
Ensuforth and Orvibe^ for the defendant in error.
By Court, Holmes, J. This case comes up by writ of error,
from the Buchanan court of common pleas. The amended
petition on which the case was tried, filed at the January
term, 1864, states that the defendants, conspiring together
and forming a design to resist the laws of the United States,
wrongfully and with force of arms entered the plaintiff's store,
while he was present, and took and carried away a large quan-
tity of ready-made clothing, taken promiscuously from his
stock of goods (the precise number and kind of the articles
he cannot recollect, having been prevented from taking an
inventory of them), and of about the value of two thousand
five hundred dollars; and that said defendants and others
unknown to him were armed with implements of war, and put
the plaintiff in fear of his life, to his great damage in the
loss of his property, the breaking up of his stock, and per-
sonal injury in the sum of five thousand dollars, for which
he asks judgment. The answers of the defendants denied the
allegations of the petition, and at the June term, 1865, there
was a trial and verdict for four thousand five hundred dollars
damages for the plaintiff. The defendants moved for a new
trial, chiefly on the ground that the instructions given and re-
fused were erroneous, and that the damages were excessive.
At the suggestion of the court, the plaintiff entered a remits
titur of one thousand dollars, and the motion for a new trial
was overruled.
The evidence tended to prove the facts stated in the petition,
and it appeared that the defendants, with others, engaged in
raising military companies for the purpose of joining Sterling
Price's army, and making war on the United States and the
provisional government of this state, and armed with mili-
tary weapons, forcibly broke open the doors of the plaintiff's
store, though shut up by him, and, putting lus life in danger,
abstracted several wagon-loads of clothing, the exact value of
which the witnesses could not state. One witness saw seven
loads brought on the shoulders of men and thrown into twc
Aug. 1865.] FnKiDSNHKrr v. Edmundsoiv. 143
wagons, the value of which he thought might be eight hun«
dred or one thousand dollars; and other witnesses saw goods
brought out and thrown into six different wagons, the value
of which they could not state. And it was admitted that the
defendants took, or aided in taking, the goods in question.
The court instructed the jury to the effect, that if the de*
fondants forcibly broke open the plaintiff's store and carried
away his goods, they would find for the plaintiff the value
of the goods so taken, with interest thereon from the time
the same were taken, and that they might also find such
further sum as to them might seem right in the way of ex«
emplary damages, in all not to exceed the amount claimed in
the petition; and refased to instruct for the defendant, that
the measure of damages was the value of the goods taken,
with interest thereon from the time the same were taken, at
the rate of six per cent per annum. It is insisted that there
was error in giving and refusing these instructions, and that
the damages are excessive.
On the issues made, the question for the jury was, What
amount of damages, not exceeding the sum claimed, would
be a full and complete compensation, recompense, or satisfac*
tion for the injury sustained by the plaintiff? 2 Greenl. Ev.,
sec. 253. The damages must be commensurate with the in-
jury. The defendants claim here that the value of the goods
taken, and interest thereon, shall be taken as the true measure
of damages in such case. It is plain that this would fall far
short of covering the whole extent of the issue referred to the
jury, which involved the question how much damage the plain-
tiff had suffered by the whole injury, and not merely the ac-
tual loss in the value of the goods taken. They not only took
his goods, but broke open his doors with armed force, putting
him in fear of bodily harm, and threatening his life if he re-
sisted, and broke up his stock, and injured his business. He
was entitled to compensation for all this injury. Accordingly,
the court instructed the jury that they should not only consider
the value of the goods and interest, but might add such fur-
ther sum as to them might seem right in the way of exemplary
damages. Exemplary damages would seem to mean, in the
ordinary and proper sense of the word, such damages as would
be a good, round compensation, and an adequate recompense^
for the injury sustained, and such as might serve for a whole-
some example to others in like cases. As we conceive, thia
does not go beyond the sense of the rule laid down by Green-
leaf, and certainly comes within the doctrine maintained by
144 Fbbidenhbit v. Edmundbon. [MibsouiI,
Sedgwick: Sedgwick on Damages, 38, 453, 454. The jury
may give damages beyond the value of the goods for breaking
and entering the store, seizing his property, putting his per-
son in danger, breaking up his stock, and injuring his business,
and greatly annoying and disturbing him: 2 Greenl. Ev., sec.
253, and note; 2 Id., p. 257. The more unsettled question, and
what appears to be the principal thing in dispute between the
authors above cited, whether the jury may in any case award
merely vindictive and punitory damages, by way of punishing
the defendant, rather than compensatory, the plaintiff pro-
ceeding on the ground that the general interest and good of
society demand such punishment, does not necessarily arise
in this case; and we are not to be understood as sanctioning
the principle which, by the nature of it, would seem to belong
rather to the domain of criminal than civil jurisprudence.
We think there was no error in giving or refusing instructiona:
Cortoin v. Walton, 18 Mo. 71 [69 Am. Dec. 285]; Walker ▼.
Borlandy 21 Id. 289; Goetz v. Anibsy 27 Id. 28.
Touching the amoimt of the damages, it was the province
of the jury to determine that, on the evidence before them and
in view of all the circumstances of the case, and the plaintiff
having remitted a part of the verdict at the instance of the
court below, we discover nothing in the case which would jus-
tify us in saying that the remainder was so excessive as to call
for the interference of this court, or indeed, that they were any
more than enough: Woodson v. Scott^ 20 Mo. 272; WeUa v. 8an^
ger, 21 Id. 354.
Judgment affirmed.
The other judges concurred.
In AsoBBTAmnvo Measure of Damages in action on the case for injniy
to property, all the circomstances connected with the injury are proper to bo
oonaidered by the jury: Ottatoa Oca Light etc Co, v. Oraham, 81 Am. Deo.
263. The law implies damage from the wrongful taking of property of
another, and although the property has no pecuniary value, and the owner
in fact suffered no sensible damage, he is entitled to recover some damages.
And if the trespass is accompanied with circumstances of aggravation, ex*
emplazy damages wiU be assessed against the wrong-doer: Parker v. Miie, 62
Id. 776.
The fbutoipal case is ctted in AUred v. Bray, 41 Mo. 484^ where in a
somewhat similar case the same measure of damages was adopted.
VcfDiCTnvE Damages is synonymous with vindicatory or punitory damagsa.
They are allowed for punishment to defendant for violating 'the law, and to
deter others from similar violations: SmUhvokk v. Ward, 75 Am. Dec. 463. The
principal case is cited and its definition of exemplary damages f oUowied ia
McKmh v. Ctttoif' ^ V ^» ^ Ma 87.
Oet 1866.] Laot t. Oiborst. Mi
Laoby v. Gibonbt.
[86 MxatouRi, I20l1
HoBroAan of Putaoif al Peopistt Mobtoaosd to Sioubb Patmbht of
Ddt beoomM the absolnte owner of the proyviy after the day for the
pajmaat of the debt faae pasBed, and may sne for and reeover the prop*
er^ in hk own name. If he has sold the property nnder the mortgici^
hat haa not deliTered it, he may sne for it as bailee.
Fdottbxs — Lahdlobd aztd Txnant — ViNDOB AND Ymkumol — Biaehinsty
does not pass with the freehold even between Tendor and Tendee^ while
as between landlord and tenant, the tenant may remove any improve-
asni he makes at any time before he snirenders np the premiss^ pM*
vided it can be removed withont ii^ttry to the freehold.
The opinion states the case.
Kmm and Decker, for the appellant.
Glover and ShepUyf for the respondent.
•
By Coart, Lovelacb, J. This was an action commenced in
the circuit court of Cape Girardeau County to recover spedflo
personal property, consisting of a steam-engine, boiler, and
machinery necessary for running a chair factory, and also a
oom-mill, with its machinery, attached to said engine. The
petition of the plaintiff sets out that he is the owner and en-
titled to the possession of the property in question, which he
alleges is of the value of seventeen hundred dollars; and that
the defendant wrongfully withholds and detains the same
&om the plaintiff to his damage, etc.
The answer of the defendant denies that the plaintiff is the
owner of the property, or entitled to the possession thereof, or
that he wrongfully detains the same from the plaintiff, and
denies damages, etc.
On the trial, the plaintiff, to support his case, offered in evi-
dence a deed of trust in the nature of a mortgage from one
John M. Cleely to secure the payment of certain liabilities
which Cleely owed to Ignatius R. Wathen. Some of these
liabilities consisted of notes which Cleely hdd executed with
Wathen as security. It was an ordinary deed of trust to
secure the payment of money; providing the manner in which
the trustee should proceed to seU the property in case default
was made in the payment of the money intended to be secured.
But as no question arises upon the construction of the deed, it
is unnecessary to set out its provisions more particularly.
The plaintiff also introduced evidence showing that he bad
attempted to sell the property under the deed, and that the
AM. Dsa Vol.. LXXXVm— 10
146 Lacet v. Gibonst. [MiBsoaru
sale was forbidden by tne agent of the defendant; and although
the Bale continued, and the property was bid off by various
persons, it Aoes not appear that the property was ever deliv-
ered or any money paid. The plaintiff also proved that the
property was owned by Cleely at the time of executing the
deed, and that it was used by him in carrying on a chair fiac-
tory; that he had it put up in a house which he had leased
from the defendant; that Cleely held the possession of the
house of defendant under his lease, and the property in dis-
pute, until about the time or a short time before the attempted
sale by the trustee, about which time, at the request of the
agent of defendant, he had given up the key of the house
in which the machinery was kept to said agents. The case
was submitted to the court sitting as a jury, and a judgment
rendered for the plaintiff, to reverse which an aj^peal is taken
to this court.
1. It is difficult for the record, in this case, to tell exactly
what specific ruling of the court below is complained ot It is
contended here, however, that the plaintiff failed to show any
title in himself, or any right to the possession of the property
sued for. The parties, however, have not taken the trouble to
point out to the court exactly what this defect consists in.
They do say something about there being no forfeiture in the
deed of trust. But the deed itself sufficiently proves a forfeit-
ure; for several of the notes secured by the deed were payable
to Wathen, the cestui que trust in the deed, and were past due.
And in Walcop v. McKinney^ 10 Mo. 229, it was held that a
mortgagee of real estate, after the day of payment stipulated
in the mortgage deed, became the legal owner of the mortgaged
property, and might maintain ejectment. And in Robinson v.
Campbell, 8 Id. 365, S. C, 8 Id. 615, it was held that the mort-
gagee of personal property, after the day of payment had
passed, became the absolute owner of the property; and these
decisions were made against the mortgagor or persons claiming
under him. The rule is, that a mortgage is forfeited, and the
legal title vests in the mortgagee, so soon as default is made
in the payment of the money intended to be secured by it. In
this case, the plaintiff was interposed by the deed itself, for the
purpose of holding the title to the property, and disposing of
it for the payment of the debt intended to be secured by it;
and that debt was then due, and he clearly had the right
under his deed to take the property into possession, so that he
might give possession to those to whom he might seU.
Oct. 1865.] Laost t. QTBomt. 147
2. And this brings us to consider the second reason hinted
at by the defendant why the plaintiff had no title, — that he
had parted with it at the sale above referred to. It is the
dniy of an agent or tmstee in a sale of this kind, not only to
have the property bid off, bat to deliver it to the purchasers,
and the sale is not completed until the property is delivered;
and if^ from any cause, the person making the sale should be
unable to deliver the property, and put the purchaser in pos-
session, the act of bidding it off could not amount to a sale;
and that seems to have been the case here. Though the prop-
erty was bid off, it was never delivered, nor was any ever paid.
But even if the sale was binding on the parties, and would
operate to pass title to the property, still, the trustee is the
l^al custodian, and is entitled to the possession of the prop-
erty until he delivers it over to the proper owners, and as a
mere bailee holding it for the use of the legal owners, he might
maintain an action for the possession against a mere stranger:
Story on Bailment, 422. So, whether it were a sale or not, the
trustee might maintain the action in his own name; for if it
were not a sale, the trustee is still the legal owner, and may
maintain the action under the first averment in his petition;
and if there was a sale, then he is still entitled to the posses-
sion as against a stranger, for the purpose of delivering the
possession over to the purchasers, and might maintain the
action under the second averment in the petition.
8. But some importance seems to be attached to the fact
thai the boiler was inclosed by a brick wall; that the engine
was bolted to timbers planted in the ground, and that much of
the machinery was fastened in some way to the ground or to
the house. Unless the object of the defendant is to claim, by
these circumstances, that this property is a part of the free-
hold, and therefore belonged to him, we do not understand
what figure they are to cut in this case; and if that is the object
of this evidence, then it is without any authority to support it;
tor the rule, even between vendor and vendee, where it is con-
strued strongest in favor of the freehold, is, that the machin-
ery does not pass with the freehold: 1 Washburn on Real
Property, 7; and as between landlord and tenant, the rule has
generally been laid down in the late cases, that the tenant
may remove any improvement he makes at any time before he
surrenders up the premises, provided it can be removed with-
out injury to the freehold: 1 Id. 6; Raymond v. WhiUy 7 Cow.
319; PhiUiimn v. MvUanphy, 1 Mo. 624; rowM v. McAshan^
28 Id- 70. *
148 Btatb «. Co0nL [MiBsoatl,
Ttieie WB8 »» Talid objectioii to the plaintiff'B title as made
«Qt in the court below; and this leaves but one other objectioo
that the defendant presents to this court in a way in which it can
be reviewed. One witness made some statements in regard to
the lease from the defendant to Cleely , which lease it appeared
was in writing. After the witness stated that the lease was in
writing, the defendant objected to his testifying further con-
coming it, and the objection was overruled; but it does not
appear that the witness did say anything fiir&er concerning
it, and the defendant afterwards introduced the written lease
himselC 80 it does not appear how any possible injury could
have resulted to the defendant by this abstract ruling of the
court.
The other judges coacurring, the judgment is affirmed.
MoBioAGi or Cbaitiu PAssn Wholi Ls^al Trru or PBOPEBTr oon*
^tionally to the mortgigee^ and to defast sncli tiUa, the mortgagor, or tbeee
^•^iwiwig vnder ]iim» irnirt ahow a perfomanoe of the oondition. Upon ih&
hroach of the ooadition, the tide ia ahaolate at law in the mortjgageep althoo^
the mortgagor may be entitled in eqnity to a redemption: TcmnakiU ▼. Tm^Um^
61 Am. Dec. 480, and note.
FiZTUBXS. — The law relating to fixtures npon the point discasaed in the
prineipal ease will be foond elabomted upon in J^ohmmm v. TfiMmoii, S3 Am.
Dec47& See alao Poii ▼. Sdber, 83 Id. 668; iSymomlff T. £rarrii^ 81 Id. 669;
IFaliMr'a Ajppeal, 84 Id. 606, and the notes to these caaes.
Tmt PBmoiPAL QAsm la osted in Pace v. Pierce, 49 Mo. 393^ where it ia
field the tmstee in a chattel deed of tmst has a right to the possession of the
property even after sale for the pttipose of delivering it to Ihe pnrdiaaer; and
in case possession is withheld, the trustee may sae in replevin, or, so far aa
•defendant is conosmed, in damngea for eonveraion of tiie property. It ia
also cited in Stale v. Wrigbi, 76 Id. 612, to the point that after breach of con-
dition in a chattel mortgage, the trustee beoomes invested with the title to
the property.
Statb v. Gostb.
l» xusooBi, m.]
pABxns TO AcnoH wuhdi MxANnro or Rule making prior judgments
oondnsive on snch are not those only who appear as parties on the reo-
ord, bat inclnde all who have a direct interest in the sabject-matter ol
the suit or a right to make a defense or oontrol the prooeadiqgB.
WaaatMBL Judgmsmt n Favob or AxnmnsimAiOE Bass Aomnr aasnisff
ma SuBims upon the same aabjeat>mattsr, as thqr art ia privity vith
Ths opinion states the case.
Oct 186S.] Statb «. Go0ra. 148
Jftimfoni, tor the appeUaot.
Olover and ShepUy^ for the reqKXideiiL
By Conrt, Waonbb, J. The same queBtkm it preaented hem
thai was passed on by this court in the case of Hemp§tead t*
Hemjmtead, 82 Ma 134. There the suit was against the ad*
ministrator, Wilson, and judgm^it was given for the plaintiflf
in the cirenit court; but that was reversed by this court, and
final judgment entered for the administrator.
An attempt is now made to charfi;e the securities on the ad*
ministration bond for what this court has heretofore deter^
mined the administrator was not liable. It is contended that
the former judgment constitutes no bar to eeUuppA in this
cause, because the securities were not parties to the record.
The judgment, as it stands, is conclusive against the right of
^pellant in this action. The issue is precisely the same in
this suit as it was in the former one; and the judgment of
the court of competent jurisdictioQ is conclusive in a second
suit between the same parties or their privies on the same
question, although the subject-matter may be di£Eeient: Doly-
V. Brown, 4 N. Y. 71 [53 Am. Dec. 860].
The present suit cannot be maintained without permitting
the facts to be tried again and found the other way. The
only thing for us to decide is, whether the parties to the suits
are the same, or stand in such privity as to permit the appli*
cation of the rules or principles above enunciated. In the
first suit, the action was against Wilson, the administrator,
and Biddle; and by an examination of the record, which was
in evidence in the cause, we see that the allegations in the
petition and the cause of action are identical with those stated
in the present suit. Both are founded on the maladministra*
tion of Wilson, and his neglect and refusal to account for and
make the proper application of assets wliich it is alleged had
come into his hands. The securities were directly interested
in the event of that suit.
It has been held that the relation of master and servant,
principal and agents, constitutes such privity as would enable
one of the parties to avail himself of a judgment rendered in
fovor of or against the other party on the same question.
There ought not to be two judgments directly in conflict on
the same question, and that conflict can only be prevented by
denying the appellant the privilege of contiweding the judg*
ment that has already been obtained against faim.
160 Ivory v. Bank of the State of Missouri. [Missouri,
It is not true that the term ^' parties/' mthin the meaning
of the rule which renders a prior judgment conclusive on those
who sustain that character, is restricted to those who appear
as parties on the record. But on the contrary, it includes all
who have a direct interest in the subject-matter of the suit; a
right to make a defense or control the proceedings: 1 Greenl.
Ev., sec. 523; Duchess of Kingston's Case, 20 How. St Tr. 538;
Carver v. Jackson, 4 Pet. 85, 86; CoMe v. Noyes, 14 N. Y. 829;
Bales V. SianUmy 1 Duer, 79.
Holmes, J., concurred.
Lovelace, J., was absent.
The judgment is affirmed*
Pabtoes, wiTHur MsAHDio OF Ruu MAKnro JuDOMms Qaaamprm
tgainst parties and priTiesi ineladM all persona hanng ri^t to oontest tlia
prooeedings in the cause, to make defense, to addnoe and doss-ezamine wit-
neasesy and to i^peal frcnn the dBciaion when an appeal lies: lApKOfnh ▼. Fo^
tell, 77 Am. Deo. 651; CeeUT. CeeO, 81 Id. 626.
JuDomENT AOAnrar ADMonaTRAioB Don mot Bm Bn SinimBB: J^ps-
comb V. PoMi^ 71 Am. Deo. 651. This was so held npon the groond tiia*
no priTity existed between the principal and his soietios. Bat in Mmmy t.
Fowkr, 63 Id. 627, it was said that the technical role that a fanner jndgmeat
can only be pleaded in bar between parties to the record or their privies ex-
pands so far as to permit of its being so pleaded when the same qnestion has
hmmm Ai^Anii ahiI jfiHgnwrn^: WMiH<MiA«l TiatwaMwi payfei— ymm^Mn^nOm €ni» ^3**
acts. See also Thomamm t, Odmrn^ 68 Id. 150.
Itoby t;. Bank of thb Statb of Missoubi.
[W Missoubi, 47S.]
Days of Obacb— Bnx or Bxghahgb.— A written request addressed fagr
one person to another, directing the payment of a certain somen a certaia
day to a third person, is a bill of exchange, and is entitled to days cl
grace, and a presentment for payment on the day named is premataze^
and notice of payment refosed, based npon snch demand, will not bind
anindorser.
Neqligknob. — Bank Wbiob Prisknts Bnx of Exohanos fob Patmbit
BXFORB ExpntATiON of the days of grace to which it is entitled, and
notifies the indorBsrs that payment has been refosed npon soch demand,
which notices do not bind the indorsers on accoont ol soch prematoro
presentment, is gnilty of negligence and liable to an action by the owner
of the bilL
That Bank ia not Aocustomsd to Dbal in Ckrtain Class of Pafkb
OoNHTiTUTM Ko DsFENSX to aa action for its negligence in dealing with
a certain bill of that dass, if the paper is soch as banks generally deal h\
and if the bank in this instance did ondertake the coUecticn of this par-
tieolarbiU.
Oct 1865.] IvoBT V. Bank of thb Statb of Missouri. 151
AcnoK against defendant for negligence in failing to make
proper presentment, demand, and notice of dishonor of a cer-
tain written instrument. The evidence shows that on the
12th of October the agent of Ivory offered to an officer of the
bank the written instrument mentioned in the opinion; that
this officer hesitated, saying that the bank was not in the
habit of receiving such paper for collection; that the agent
insisted on his receiving it, saying that all that was necessaiy
was that it should be presented for payment at the Southern
Bank on the day of its maturity, which they both agreed was
the 22d of October. The bank received the paper, and on the
22d gave it to a notary, who on that day presented it for pay-
ment; that payment was refused, the paper dishonored, and
immediate notice given to all indorsers, including Ivory, who
took no further action in the matter. The court, in instruc-
tions Nob. 2 and 6, directed the jury that if they found that
the agent of plaintiff, at the time of his delivery of the check
to the bank, left instructions that the paper was to be pre-
sented on the day of its maturity without grace, plaintiff could
not recover; also, that if it did not appear from the evidence
that plaintiff had used all proper means to make collection
since the return of the paper to him, he could not recover
unless the drawers of the draft were insolvent. Judgment
went for plaintiff.
BuTTheSj for the appellant.
Strcng^ and Glover and Shepley^ for the respondent.
By Court, Lovelacb, J. The first question in this case is,
whether the instrument which forms the basis of the action
is a bill of exchange, and as such entitled to days of grace.
Kent has defined a bill of exchange to be "a written order or
request, by one person to another, for the payment of money,
absolutely and at all events": Kent's Com., sec. 44, p. 74.
Story says of this definition that "its peculiar distinguishable
quality in modem times, its negotiability, is omitted"; and
he accordingly adopts the definition of Mr. Kyd, which states
it to be '' an open letter of request addressed by one person to
a second, desiring him to pay a sum of money to a third, or
to any other to whom that third person shall order it to be
paid, or it may be payable to bearer ": Story on Bills of Ex<
change.
The instrument in question is addressed to the Southern
Bank of St Louis, and requests it to pay to M. C. Jackson
162 EsawvsoB fi Bioth. [Miasouiit
ft Ca, or order, five hundred dollars, on the 22d of Octooery
and signed by E. Webie & Ca It seems, then, exactly to fall
within the above definition of a bill of exchange.
At common law, all bills of exchange and drafts kte money,
except those payable on demand (or where no time for pay-
ment was specified, and they were construed to be payable on
demand), were entitled to three days of grace. Our statute
makes these payable at sight, or on demand, — payable when
presented, without days of grace; and with this qualification
all bills are entitled to grace. This bill is neither payable at
sight nor on demand, but on a day certain; and it was there-
fore entitled to grace, and it was negligence to present it before
grace had expired.
As to whether the bank was accustomed to dealing in this
kind of paper, is a matter of no importance. It was a species
of paper that banks are generally in the habit of dealing in,
and the officers of the bank did in point of fact undertake to
collect this particular bill, and it was clearly its duty to use
proper diligence, and present it for payment on the proper day,
after days of grace.
There was no error in refusing instructians numbered 1, 8,
4, and 5, asked by defendant. Instructions numbered 2 and 6
properly set out the law of the case. As to whether the plain-
tifi* might have had the check presented in time after he
received notice of the protest, is sufficiently set out in instruc-
tions numbered 6. He plainly would not have it presented
before it was returned to his possession, and all he could do
was to use due diligence afiter he received it.
The other judges concurred.
The judgment is affirmed.
pBBSBHnOMT OF NSOOTIABLB IjiSTHUMMirr WOM. PaTHSHT BDOBI LaST
Dat of GsAca is preaoAtiiro, m the iiM^miiMiiil ia not duo till than: Migat
T. Of^ar^ 74 Am. Deo. 316^ and notai
Kkowlton V. Smith.
[86 MUSOVBI, £07.J
RaoiTAUi OOP ABMnrisnuTOB's Dxkd. ^ Where the etefeate psoTidet the*
where an administrator has sold realty he most make a fnU report of his
prooeedings to the ooort for its approral; that its approval is naoessaiy
to the validity of the sale; and that if tfaa sale u appnrrod tfaeadminia-
Inilor shall make a deed to the puFchaawr, whioh nnat leoite the efdsrcf
Oct 1865.] KnowLTQK v. Smith. 153
«k^ the wort by wbkh it was mads* and tba cwaidwatiin, — a daad
cnntainhig sncli ledtals is valid prima fade, and apoa him who dBnias
its validity is thrown the emu of showing that tha sale had never been
approved by the court.
fikvmoir Lm bbtwusi Two PBtaomi^ Aowbkd cnoir sr Thim tm>a
MoKAKX OF FAon» will not estop one ol them from ^J^<™^"g to ^|^ ^m^
line upon its disooveiy, pvovided thepghtsof innooant third partlea have
not intervened.
AffVUttU PosBEBBioif — Diviiizov LniB. — It is tiie intention which makes
pOBseaoion adverse. The posssasian most be with the intent to claim
agsinst the tnie owner; oonaeqneniiy, where partiss daaignate a division
line throBgh ignorance or mistalr«^ the possoswion held by either will not
be adverse.
AovxBSB Possession — VKBDior Failixo to Show. —Verdict that defend-
ant has held qniet possession of the disputed premises more than twenty
years does not estsWish advene pnssasBion, as there is no apparent in-
tention to so hold.
Ejectment for fifty-two acres of land, being a part of an
entire tract at one time belonging to W. P. Clark, whose ad-
ministrator, in 1842, sold it in two equal parts, one to the per-
son under whom plaintiff claims, and the other to the person
under whom defendant claims. At the time of this sale no
division line was run, but the tracts were described as lots Nos.
1 and 2 respectively, each containing four hundred arpents.
It appears that after the sale, but before the execution of the
deeds, the purchasers employed a surveyor to run a division
line, which when run they agreed to abide by. Plaintiff's
evidence showed that through a mistake in the outer bounda-
ries of the entire tract at the time of the survey, the division
line was run too far over on his land. The deed to plaintiff's
land, made by the administrator of Clark, contains no recital
of the report of sale made by the administrator, nor of an ap-
proiral of said report made by the probate court
LewiSj for the appellant
WkUteUej/y for the respondent
By Court, Waghsb, J. The ehief error complained of is
tlie0econd instruction given bjibeooort below at the instance
of the respondent, that the deed from Clark's administrator to
Belton did not show that the administrator ever made any
report of his pxooeedings in the sale of the land, nor that said
report was ever approved by the piobate court; and that as
DO evidence was offered or introduced showing that said report
wee ever confirmed or approved, the deed was void, and passed
no title on which plaintiff coold recover. The prooeedings in
154 Knowlton t^. Smith. [Misaooii,
the probate court, and the sale by the administrator, took place
in the years 1842 and 1843, and were consequently governed
by the code of 1835. That law required that the administra*
tor or executor, at the next succeeding term of the court after
sale, should make full report of his proceedings, with the cer-
tificate of appraisement, and a copy of the advertisement veri-
fied by affidavit, etc.; and if such report and proceedings of
the executor or administrator were not approved by the court,
the proceedings were to be void; but if they were approved, the
sale should be valid, and the executor or administrator, as
soon as full payment should be made of the purchase-money,
should execute, acknowledge, and deliver to the purchaser a
deed, stating the order of sale, and the court by which it was
made, and the consideration.
It is contended that as no recital is made in the deed that
the court approved the proceedings, the conveyance is void, or
at least can only be upheld by showing from evidence aliunde
the approval of the court in the premises. It is sufficient an-
swer to this to say that the statute did not require such recital.
All that was necessary according to the then existing law was
to state the date of the order of sale, the court by which it was
made, and the consideration, and these are all embodied in
the deed. This compliance ?dth the law was sufficient to
make the deed prima facie evidence, and the onus of proof to
destroy its validity devolved on those who attacked it. A
liberal construction will be indulged to uphold judicial sales,
and where the proceedings appear regular on their face they
will be presumed to be correct, in the absence of rebutting
facts and circumstances.
In VaUe v. Fleming, 19 Mo. 454 [61 Am. Dec. 566], it was
shown affirmatively by the record that the law had not been
complied with, and that the jurisdiction of the court had
never attached. And in suits of this description it is not com-
petent for third persons to impeach the deed collaterally; it
can only be done by the parties or their privies in a proceed-
ing to set it aside or have it canceled, or by their creditors in
attacking it for fraud. *
It is claimed that the parties having agreed upon a division
line, and occupied each his own part respectively on the £uth
of that agreement, that they are estopped and concluded from
asserting any other line. If the agreement was made and en-
tered into under a mistake of facts, a party is not precluded
from claiming his rights, as under such circumstances there
OeL 1865.1 Enowltor v. Smith. 16S
is no preBDxnptioQ of bis snrrender or waiyer of rights given
op under a xnisapprebension. Whilst parties cannot avail
themselves of any defense where they have entered into a con-
tract through mistake or ignorance of law, it is different as to
a mistake or ignorance of facts, provided the rights of innocent
third persons have not intervened in consequence thereof; and
this virtually disposes of the plea of the statute of limitation.
The possession required by the statute must be with the
intention of asserting an adverse title. It is the occupation
with an intent to claim against the true owner that makes the
possession adverse; therefore, where parties designate their
division lines through ignorance, inadvertence, or mutual
mistake, the possession held by either will not be adverse.
Questions of adverse possession thus depending upon the
intention of the possession are questions of facts as well as
law, to be determined by a jury as the best means of ascer-
taining the truth, under proper instructions from the court
Lord Mansfield says: " Disseisin is a fact to be found by a
jury: Taylor v. Horde j 1 Burr. 60; but if the jury return a
verdict only that the defendant has held quiet possession of
the demanded premises for more than twenty years, such ver-
dict cannot, by legal intendment, be considered as establish-
ing the alleged fact of disseisin: P^jepscot Proprietors v. Nichols^
10 Me. 256. There must be something more than mere pos-
session; there must be shown an intention to possess and
occupy adversely to the true owner.
Having indicated our views on all the material questions
that can arise in the trial of this cause, it is not necessary to
ncytice the instructions in detail.
The judgment is reversed, and the cause remanded.
Holmes, J., concurred.
Lovelace, J., was absent
AmnnaTHAiOR'ii Bali is Showk to bs Von> whea tlM record affimm-
liT«ly abowi that the sale has not been approved by the oonrt: VaUe ▼. Flem^
kt(f, 61 Am. Dee. 6S6w If theaale lacks coiDifinDatioii, no title pasMs: Baaikqf
MkmmriY. IfUfe, 66 Id. 67L
ObHVBTAHca BY BzsouTOB, Faujiio TO SxT FoBTH AT Labos ordcr under
which it was made» when the statate requires it to be so set forth, is inralid:
Aitm» T. Kmnam, 32 Am. Dec 534. An administrator's deed need not recite
at length decree or proceedings in the suit on which the decree for the con-
veyaoee was foonded. Snch recitals wonld not be evidence of their existence
eseept upon the parties and their privies. As against a third psrty, the jndg-
■MBt or decree anthorising the conveyance must be produced: Jones v. TVqr-
iar,66Id.4& Li the note to this case this question is discussed at length.
t56 MncHELL «• Ladsw. [Missouri^
BoflSBKKMi— What CbKanrcraBs 8e» Decmr, Brown, 87 Am.
Beo. 656^ where nmilar oasee to tbe principal one ere collected.
MxBTASS nr BomrxuKT Lnrx is not FouMiUTioir for Auvsrsb Possas-
no9: Softam v. HandtUm, 62 Am. Dec. 524. In the note to thia case this
qtiestian is lengthily itiicnssed and the principal caae eited, with a luqge num-
ber of others in hanoooy with it: SeealsoiSroMarrfT. JS^etfy, 74Id.li&
ADTSBn PDanwiDN BanDnw uvoh Ibtjuitiubi ov PoBanson, and the
knowledge or means ol knowledge of the owner of the land. It is a qneetiao
of fact to be detennined by the jury: Ford ▼. WUson^ 72 Am. Dec. 137.
Thk frdtoipal oass a citbd to the point that where parties have agreed
npon a division line, and accepted each his own part in aooordanoe therewitfat
if the agreement was made and entered into vnder a mistake of facts, neither
party is sabaeq[oently prednded from claiming his rights, as under such dr^
eumstanoes there is no presumption of a surrender or waiving of rights which
were given up under a misapprehension, in Kinoaid v. Dormey, til Ma 652;
We^ V. SL L,, K, C, As N. B^y Co,, 59 Id. 510; WaJEbnam v. Bailor 68 Id.
164. The intent to claim and poesees the Isnd is one of the qualities neoee-
sary to constitute a disseisin and to hold under an adverse possession: Brad'
lejf V. WeUf 60 Id. 41. The principal case is cited and discussed upon the
question of adverse possession, and distinguished, in HaanUUm v. West, 63 Id.
95; i)o/& V. Fodidhi, 49 Id. 102; Cbfe V. Podber, 70 Id. 872. Its dodzinA ia
criticised upon this point in Adon v. Dooteg, 74 Id. 63L
MiTOHELL V. LaDEW.
TM HiSBOVSl, 6as.j
DzFTERSNT Dkbts Ssoubed bt Samk Mobtqaos abx to bi Paid wuom
MoBTOAOB Fcnf D vs Orbxb in which they fall due. So held where a
deed of trust was made to secure the payment of proroiaBOiy notes falling
due at different timee, and the property on whioh the securi^ was taken
was not sold until the maturity of all tiie notes, and was not sufficient to
pay them alL
Tbansfkb of Debt Trakbvbbs Tbust PBonsxT OosrmncD io Sbodbx b;
as the debt is the principal thing, and the trast deed only aa lacideiit
Thb opinion states tbe case.
Lacklandj Cline^ and Jamison^ for the appellant.
Whittelseyy for the respondents.
By Court, Wagner, J. The plaintiff filed his petition in the
St. Louis court of common pleas to foreclose a deed of trasi
made by A. P. Ladew to John O. Priest and George Knapp,
as trustees to secure the payment of three negotiable promis-
sory notes made by said Ladew to John J. Anderson, which
were given for the purchase of property situated in St. Louis
County; said notes were dated May 5, 1858, for the sum of
$4,566.66 each, payable in one, two, and three years, with in-
Oct 1865.] Mitchell v. Ladew. 157
terest at six per cent per annum from date. Tbe petitioii
alleges that Ladew paid the first note; that said Anderson in-
dorsed the said second and third notes to John J. Anderson A
Co., who indorsed them to one John C. Page, who indorsed
tliem to plaintiff; that the second note was not paid at matu-
rity, and that after protest and notice John J. Anderson took
it up and paid plaintiff the amount due thereon, and alleges
that said Oeorge Ejiapp claims to be the holder of said note,
and to have it paid in full, or in part, out of the trust prop-
erty.
The petition then further states that the third note was duly
protested, and was held by the plaintiff, and was still unpaid;
and that the property conveyed in said deed of trust would
not, upon sale, pay both notes; and that George Knapp, being
holder of one of the notes, could not act as trustee in making
a sale, and that no provision was made for a sale by J. G.
Priest alone. It then prays that the equity of redemption be
foreclosed, the lands sold, and that from the proceeds of sala
after payment of costs, the note held by plaintiff be paid in
fiill.
Ladew, the maker of the notes and deed of trust, in his an-
swer denies all knowledge of any indorsement of the notes to
Page or plaintiff, admits that the notes payable at two and
three years are still due and unpaid, alleges that the note due
at two years was transferred by John J. Anderson to George
Knapp & Co. before the maturity of the third note, and prays
that the second note be first paid from the proceeds of sale.
The answer of George Knapp & Co. admits the payment of
the note at one year, and also that John J. Anderson, upon
protest of the second note, took it up, but alleges that plain-
tiff had indorsed the same to one A. A. Howell, who was the
legal owner thereof at maturity. They allege that said Ander-
son assigned to them said two years' note, before the maturity
of the note at three years, in payment of and as security foi
his indebtedness to them; and allege, also, that they were
purchasers of the note for a valuable consideration, and with-
out any notice of any equities existing against it, and that
they took the said note upon the faith that it was secured by
deed of trust, and was to be first paid upon sale under said
deed; that George Knapp had never accepted the trust, and
had executed a disclaimer and quitclaim to said Priest.
They claim priority of payment under the deed.
At the trial before the court, the court found both notes due,
158 Mitchell v, Ladxw. [MiBsoori,
and decreed a forecloeare and sale; and that the money aria-
ing therefrom, after paying the expenses and costs, should
be applied to the payment of the note doe at two years first
There is but a single question that arises in the determina-
tion of this case, and that is, whether, when a deed of trust or
mortgage is made to secure the payment of promissory notes
falling due in installments or at different dates, and the prop-
erty on which the security is taken is not sold till the maturity
of all the notes, and is not sufficient to pay them all, the pro-
ceeds shall be applied to the payment of the notes first in the
order in which they become due, or to all pro rata.
We have not been able to find any adjudication of this
question in this court; it has often been raised and passed
upon in the courts of several of our sister states, and opposite
conclusions have been arrived at.
The cases adhering to the doctrine that the application of
the funds should be made pro rata, irrespective of the time
when the notes become due, have all been decided on the
authority of Dordey v. Hays, 17 Serg. & R. 400. It was then
held by the supreme court of Pennsylvania that where a mort*
gage is given to secure a debt, which debt is evidenced by
bonds payable at various periods, and the holder of the bonds
assigned some of them to different persons at different times,
and retained the balance himself, and the fund arising from
the sale of the mortgaged premises, by execution against the
mortgagor, falls short of the whole mortgage debt, the respect-
ive assignees and the mortgagee are entitled to a pro rcUa
dividend of the proceeds, according to the amounts of their
bonds by them held. The court based its decision principally
upon several old English chancery decisions, which arose out
of settlement cases, and where the funds proving insufficient,
the chancellors had ordered contribution to be made. With
all deference for that learned and intelligent tribunal, we are
unable to perceive that they have really any particular bear-
ing on the subject. Chief Justice Gibson delivered a most
able dissenting opinion, and his position seems to be the best
sustained by authority and reason. It is admitted by this
class of cases that priority may be given in the payment of
the notes first falling due, when it appears that such was the
intention of the parties; but in the absence of any such inten-
tion manifested by some act, the law will appropriate the pay-
ments alike to all in proportion to their respective amounts,
without regard to the time they fall due. But the weight of
Oct. 186S.J MrrcHSLL v. Ladkw. 160
aathoritjr, we think, is decidedly in tsLVOT of the role, as it
has been declared that " different debts, seemed by the same
mortgage* are to be paid from the mortgage fhnd in the order
in which they faU due": tiunt v. Stiles, 10 N. H. 466; WiUon
▼. Haywardj 6 Fla. 171; U. S. Bank v. C(n>eHj 13 Ohio, 240;
ITood ▼. Tra$l, 7 Wis. 566 [76 Am. Dec 280]; Larabee v.
Lawbertj 82 Me. 97; 8iaU Bank ▼. Tweedy, 8 Black! 447 [46
Am. Dec 486]; Hinde r. Mooen^ 11 Iowa, 211.
The case of Owaihmey v. Ba^a/ndf 1 Band. 466, which was
decided by the Virginia conrt of appeals in 1828, is precisely
in point, and may be regarded as a leading case on the sub-
ject. There a deed of trust was executed by William and
Francis Sution to trustees, to secure the payment of three
notes to a certam Anderson Barret. The first note was paid;
the second was transferred by indorsement to Nathaniel Rag-
land, without any assignment to him of the deed of trust;
the third note was indorsed to Robert and Temple Owathmey,
who took an assignment of the deed of trust for their security.
The trustees having advertised the land for sale to satisfy
Bagland's claim, the Gwathmeys filed a bill in the superior
oonrt of chancery of Richmond against Ragland and the
tmstees to enjoin them from selling the trust property to
satisfy Ragland's claim, alleging that, as they had taken an
assignment of the deed of trust, and he had not, they were en-
titled to a preference over him in satisfaction of their claim
out of the trust property. The injunction was granted. Rag-
land answered that he was induced to take an assignment of
the note in question by the equitable right which he acquired
thereby to the deed of trust, without which he would not have
taken said note. On motion of Ragland, the injunction was
dissolved. The court of appeals affirmed the judgment dis-
solving the injunction, and held that the deed of trust from
the Buttons was intended by the parties to it as additional
security for the pajonent of the notes to Barret, or his assigns,
in the order in which they fell due.
The debt being the principal thing, a mortgage or deed of
trust to secure it is merely an accessory or incident, and the
transfer of the debt carries with it the equitable right to the
trust property. Omne principale trahit ad se acces9orium.
And where there are several notes so secured, and they are
assigned to difierent persons, each assignee takes an equitable
interest in the property pro tanto. This right may be defeated
by intervening equities, as by the negligence of the assignee,
100 MiTCHBLL V. Laiww. [MissouTi,
or where, bj Mb improper condticl or miflrepresentatlons, in*
noeent purchasera have been induced to acquire interest in
the trust property: Andermm ▼. BauTrvgaftner, 27 Mo. 80.
The question now is, How is the trust fund to be applied m
payment of notes fialling due at different times? From tho
authorities, this is entirely open for our consideration and
decision. Under our law of mortgages, where a mortgage
creditor has several notes against the mortgagee, he may pro-
ceed to foreclose and sell tiie mortgaged premises when the
first note becomes due, and the sale will convey a good title
though it only pays the first note: Buford v. Smithy 7 Mo. 489.
The deed of trust in this case provides that in de&ult of
payment of said notes, or either of them, or any part of either
of them, or the interest thereon, as they respectively become
due and payable, the trustees shall proceed to sell, etc. The
most reasonable interpretation of the contract is, that the
notes were to be paid off and satisfied in the order in which
they fell due. It is indisputable that when the first note
became due, if it had not been paid, the trustees might have
sold the property and applied aU the proceeds to satisfy it,
had there not been more than sufficient arising out of the sale
for that purpose; so, when the second note became due and
payable, a like sale might have been had, and the money
arising therefrom been wholly absorbed in its application to
the payment of the said note before the third fell due. The
mere failure or neglect to pursue the remedy till all the notes
are due cannot impair or alter the rights of the parties here,
where they have done no act that can operate injuriously to
the other party.
Notes of this description, secured by mortgagee and deeds
of trust, enter largely into the business transactions of the
country, and parties taking and receiving them do so invaria-
bly with the understanding that they will be paid in the order
in which they become due. With those who are postponed,
it is simply a matter where they have resorted to security and
the security was proven to be insufficient. Had all the notes
been due and payable upon default made in the payment of
the first, as is frequently provided in the making of these con-
tracts, the case might be materially changed.
Holmes, J., concurred.
LovBLACB, J., was absent
Judgment affirmed.
Oct. 1865.] Vallb v. Cbube's Adminibtbator. 161
Whbui 8s¥xkal "Sorts Sboubbd bt Sams Mobtoaos Faxx Ditb sk
htt&nat timee they nnut be peid in the order in which they fall due, except
where, by reeeon of ■ome f^peoial equity, eqmty giTce a preference in loxiie
gpeciai mumar: Wood t. Traakf 76 Am. Dec 230, end note.
Ow Four Mobtoaobb, Patablb at BmPKBXifT Datss, to 8wcubm Dv-
rsBKsrr iNarrALLMKHTS ov Sams Deb^ neither is entitled to preference; and
■II of aaid moortgages being aarigned, the sun realised from a f orecloanre aale
ander the first mortgage ahonld be applied pro rata to the ntiafaction of the
mortgagee held by the several aesigneeB: Pary^a Appeal 00 Am. Dec. 68.
Thx frikcipal CASS IS AvnsMSD in Thompaon v. Field, 88 Mo. 820. Hie
notes will all be paid in the order in which they were to haye fallen dne^
even though they all fall dae at the same time by default in the payment of
the first: Hurtk t. ErMne, 45 Id. 484. Bat if the parties agree upon a
diiSBrent order of payment, th^ order will prevail: EUb ▼. ftamme, 42 Id.
153. It is cited in ff ofton ▼. J7iiuiiM, 60 Id. 850, to the point that the t^
far of s Bort^ige debt transfers the mortgage as an incident.
Yalle V. Geebb's Admiitistbatob.
rSS IClSSOUBX, 07S.J
— Is AcnoM ov RspLsvm AGAiim Shsbot to RsooysB At-
TACKXD PsoPSBTY, the attaching creditor should be allowed to be a oo-
defendant^ under the statute which permits any person to be made a
delendant who claims an interest in the controversy adverse to the
plaintiff.
OasaxosoR and Consioitss — In Whom Bioht of Pbopsstt. — FlaintiflE^ a
merchant in St. Louis, and another merchant in Kew Orleans were trans*
acting bosiness together as factors, and making reciprocal shipments,
the proceeds of which were to be carried to general account. This ar-
laagement was to last indefinitely, and plaintiff was to make advances
within the limit of a general letter of credit, authorising the consignor
to draw on the consignee for three fourths of the value of the shipment
made^ In the course of bunness, ten thousand dollars was due plaintiff
idien the other merchant consigned him goods delivered on board a boat
bound for St. Louis, and sent plaintiff a bill of lading for the same, in
which he was named as consignee. At the same time, the consignor drew
on plaintiff against this shipment, and transferred the bill to a banker,
who advanced him part of the money on it. Two days after plaintiff
received the bill of lading, a creditor of the consignor attached the goods
in traauUu. Plaintiff then commenced this suit, and replevied the goods
in the hands of the sheriff^ and after suit begun on the bill of exchange,
paid it. Hdd^ that the right to the goods was in plaintifi^ that their
deltvery to the carrier might be considered as a delivery to him, that
they might be considered as paid for in advance, and that the right to
stoppage m- tranBUu did not exist.
A0CEFTANCS OS BlLL OV EZOHANOS DRAWN U70N CONfOONSB T7F0N FaTTB
OV Ck)N8iONMENT gives the consignee such a property in the goods, or
such a lien upon them, as no subsequent act of the consignor can divesk
Such an acceptance is held to be an adyanoe upon the particular ahip-
Ajc Dsa Vol. LXXXVm— U
162 Vallb t^. Cbbbb's ADMnnsTBATOB. [Missouri,
CtoflioNicBNT TO Om TO Whom Corbionob Owss Balavos ov Aoooumt
n OovxBRXD by mncli th« same principle as where advanoee h»Te been
made or bilU aooepted upon the shipment. Where it appears that the
shipment was made to cover a general balance of acooont^ and there ia
nothing in the case inconsistent with the hypothesis, a deliTery to a car-
rier will be considered as a delivery to the consignee.
WBirTBN Pboiobb to Pat Nov-kzistxro Bill ov Excsavoi mubv Ponrr
TO Pabtioulab Bill, and describe it in terms not to be mistaken. A
general letter of credit is too indefinite for this purpose. But a person
who takes the bill, and advances money upon it upon the faith of this
letter, may maintain an action against the promisor to recover the
amount which he has advanced.
Bill ov Exohanos — Lxtteb ov Cbxdit — Dbawino vor Ezgebsivb
Amount. — Where one of two merchants purchasing goods from each
other, and making reciprocal shipments, authorises the other by a gen-
eral letter of credit to draw on him at any time upon any shipment, to
the extent of three fourths of the value thereof, and the latter in pur-
suance of such letter draws a bill upon a shipment, and transfers it to a
banker for value, the latter is required only to look at the letter of
credit and the value as stated in the invoices and bill of lading to see if
the drawer is exceeding his authority by drawing for more than three
fourths of the value of the shipment.
Thb opinion states the facts.
Oanlt^ for the plamtiff in error.
Olover and Shepley^ for the defendant in error.
By Court, Holmes, J. This case was a£Snned at the Karen
term of this court, 1864, and a rehearing was granted at the
same term. The reasons for the decision were somewhat
briefly stated, and in such manner as to lead to the supposi-
tion that the case had not received that careful consideration
on some points which the importance of the questions involved
might seem to demand. It has been reargued with much
learning and ability, and we have given the subject the most
attentive deliberation.
The case may be stated in substance as follows: The plain-
tiff, a merchant of St. Louis, and one A. Titus, a merchant of
New Orleans, were transacting business with each other, as
factors and commission merchants, the former shipping pro-
duce to New Orleans, and the latter shipping groceries to St
Louis, to be sold on commission, and the proceeds placed to
account, or as purchases to be charged in account, under a
special arrangement and mutual understanding between them
that such business relations should be continuous for an in-
definite time; that the plaintiff should buy and forward pro*
dace to Titus at New Orleans, receiving a commission and
Oct 1865.] Vallb v. Ckbbb'b Admznistratob. 16S
drawing bills f^;ain8t the shipment, or charging the amount
to ibe credit of the other in account, and that Titns should
make consignments of sugar, coflTee, and molasses, to be sold
on. commission and account, on which the consignee at St.
Louis was to make advances within the limit of a general
letter of credit authorizing the consignor to draw and negotiate
bills on the consignee, against the shipments made, to the ex-
tent of three fourths of their value, at five or ten days' Bight,
preferring ten, when the shipments were made. This business
had continued for about four months, when, on the eleventh
day of August, 1859, there was a balance of account due the
plaintiff amounting to ten thousand dollars, for advances
already made in the course of the business. On the sixth day
of August, by bill of lading of that date, Titus consigned to the
plaintiff three hundred sacks of coffee, and delivered the goods
on board the steamer Gladiator, bound for the port of St Louis.
He addressed a letter to the consignee, inclosing the bill of
lading, in which he was named as consignee, dated August 8,
1859, and the invoice of same date, showing 300 sacks of coffee^
48,919 pounds, at 11^ cents per pound (with insurance and
drayage), amounting to $5,688.18, informing him of the con-
signment, and saying he had drawn against it for four thou-
sand two hundred dollars at five days' sight; that it was a
good article, and he hoped he would get a good price for it, and
would honor his draft; and the next day wrote another letter^
saying he had drawn the draft at ten days' sight, the better ta
suit his convenience. It appears that the three hundred sacka
arrived at St. Louis, contained 423 pounds less than the invoice,,
and it was agreed on the trial that the coffee was worth at St»
Louis, in August, 1859, eleven cents per pound, and for 48,919
ponnds (less fireight) amounted to $5,308.09, and at this cal-
culation the draft was drawn for some $250 more than three
fimrths of the value. On the same day (August 8th), Titus
negotiates the draft to Eentzen & Co., bankers at New Orleans,
showing them the letter of credit (dated June 21, 1859), the
Inll of lading, and the invoice, who thereupon agreed to take
the draft, but declined paying over the money on it until they
should hear it was accepted; but a few days afterwards
(August 11th), upon the urgent solicitation of Titus, paid him
two thousand dollars on account of it. The next day Titus
fiedled and absconded. On the eleventh day of August the
plaintiff received the letter inclosing the invoice and bill of
lading. Two days afterwards (August 13th), the coffee was
164 Vaixk v. Cbbbs'b Abminiotbatob. [Missoari^
attached and seised oo board ihe Oladiator, lying at quaran-
tine, ten miles below St Loms, at the suit of T. L. Clark & Bro.,
merchants of New Orleans, as the property of A. Titns, the
defendant therein; and it appeared that Titus had bought this
coffee of Clark & Bro. on the sixth day of August previous, on
a credit of two months, and giving his note for the purchase-
money and interest, amounting to $5,315.49, for which sum
they sued. Afterwards, on the 26th of August, the plaintiff
brought this suit, and replevied the coffee out of the hands of
the sheriff. On the 19th of August the draft was protested
for non-acceptance, and on the 27th for non-payment; but in
October following, the plaintiff paid Eentzen A Ca the amount
of their advance and interest, and took the draft. T. L. Clark
& Bro. asked to be made co-defendants with the sheriff, and
their application was refused. Any person may be a defend-
ant who claims an interest in the controversy adverse to the
plaintiff: Practice Act, Rev. Code 1855, p. 1218, sec. 4. These
claimants were not necessary parties; a complete determina-
tion of the matter in controversy may be had without them.
The old action of replevin could be maintained against the
sheriff alone in such cases; it is founded upon his wrongful
act. He must defend the action here; but the ultimate inter-
est in the result concerns the plaintiffs in the attachment suit
more than it does him. We think it would have been very
proper for the court to have allowed them to be made co-de-
fendants.
The main question is of the right of property as between the
consignee and the attaching creditor; and in order to deter-
mine their rights, the matter is to be considered as it stood at
the date of the attachment. And the firstinquiry is, whether
the plaintiff had acquired any lien or property in the goods
consigned. He had received the invoice and bill of lading,
and the shipment was made, and the goods delivered to the
carrier, in pursuance of the arrangement that existed between
the parties. The matter is to be considered with reference to
this arrangement and the previous dealings of the parties with
one another. It is not to be confined to this particular con-
signment alone, as a separate and independent transaction
standing by itself; in which case the result might be quite
different. It was a part of the arrangement, and evidently
well understood by both parties, that the consignee at St. Louis
was to make advances on the shipments made to him, and
that the proceeds should be placed to the credit of the oon-
Oet. 1885.] Valls v. Cebbb'b ADHcnsTRATOB. 165
sigDor in aoooant to cover saoh advances and the general
balance of accoont between them.
The. authority to draw bills for those advances before the
arrival of the goods shipped was limited to three fourths of
the valtie of the shipment in each particular instance; but it
is also plain that the balance of the proceeds of each shipmenti
over and above the bill that was authorized to be drawn against
it, was to be credited in account, and the shipments were in-
tended to be made, and were made, not only to repay the par-
ticular advance or acceptance thus made on that shipmenti
but also to cover any previous advances and the general bal-
ance of account that might then be standing against the
consignor. This balance had accrued on the £a.ith of this
course of dealing, and of such future consignments, and
amounted to ten thousand dollars. The consignor did not
claim to have any right to draw for more than three fourths of
the value of that particular shipment, and the draft was ap-
parently intended to be drawn in pursuance of the agreement
and the letter of credit. That such was the arrangement and
understanding of the parties, and such the nature of the trans-
action, would seem to have been well established by the evi-
dence. On this state of facts, a jury would be well warranted
in finding that the shipment had been made to cover advances
and the general balance of account, and that the delivery to
the carrier was a constructive delivery to the consignee, and
vested in him a present lien and property in the goods con-
signed. It would be equivalent to a shipment and delivery to
the carrier upon an order of the consignee in his own account;
in which case, indeed, there would be, in general, a right of
stoppage in trandiu in the consignor, in case of the insolvency
of the consignee, for the amount of the price, if not paid at any
time before the goods came to hand; but in this case the ship-
ment may be considered as paid for in advance, and in such
case there can be no right of stoppage in transitu: 1 Parsons's
Mercantile Law, 142.
In general, the bill of lading alone vests in the consignee
only a naked l^al title, or a mere special property, the whole
beneficial interest or general property remaining in the con-
signor; and in such case the consignee may maintain an action
against a wrong-doer, or against the carrier if he fail to deliver
the property according to the bill of lading, and he may trans-
fer the property by an assignment of the bill of lading for a
valuable consideration as the act of the consignor himself; but
166 Vall*!: v. Cebre's Administbatob. [Missouri,
in the absence of any special agreement, arrangement, or im-
plied understanding otherwise, he has no actual property in
the goods, nor any lien for expenses, or for a general balance
of account, unconnected with the transaction, until the goods
come into his actual possession: Story on Agency, sees. 361-
878.
The consignor, in such case, may himself transfer the prop-
erty by assignment or delivery of one of the bills of lading to
any other person, as, for instance, to his banker, with whom he
negotiates his drafts against the shipment, and that will vest
the property in the assignee, even though the consignee receive
a second bill of lading and the goods from the carrier, and
endeavor to hold them to cover a general balance of account
against the consignor, while at the same time refusing to
accept his bill, because he had exceeded his authority, and
was already largely indebted to him; and such was the case
of AUen v. WiUiamSj 12 Pick. 297; for in that case it was the
manifest intention of the consignor that the shipment should
not go to the consignee unless he first accepted the bill. The
delivery of the bill of lading and the goods by the carrier,
being without authority, vested no title in the consignee
against an actual transfer of the property by the consignor
himself, even though they had come into his possession; and
accordingly, it was held that the matter of the previous deal-
ings of the parties and the balance of account was wholly im-
material. The conduct and acts of the consignor were utterly
inconsistent with any supposition or intent that the consign-
ment was to go to his credit on the general balance of account
in pursuance of any previous arrangement: Story on Agency,
sec. 378. There is nothing of this kind here.
The consignor had never attempted to change the destina-
tion of the consignment, or to transfer the property to another;
he sent the bill of lading and invoice directly to the consignee,
and delivered the goods to the carrier, with the intent that they
should go to him; the acceptance of the draft was in no way
made or intended to be a condition precedent to the vesting of
the property in the consignee, nor was there anything in the
transaction which was inconsistent with the subsisting ar-
rangement, or with the apparent understanding and intent
that the property in the goods should vest in him, nor with
the idea that the whole proceeds should go to his credit or gen-
eral account, as well to cover the balance of account as that
particular draft. He had authority to draw, at that time, to
Oct 186a] Yavlm
the extent of three
made; and if the
tbuity ^vcji, it
to
a ica£zDf «:il2G
be DO VoDgBt anr
and
28 Yt. 118 [65 Am. Dte.
169 [35 Am. Dec 607]: B-jm
whidiia
gpvemed oy the
vOIbe
Roadl
T. JKx, 4 Mea. * W. 791;
Dee. 76]; 3 F
cam the ihipiiieut and
«Dder the bOI «f la£i«
168 Vallb v. Cebbe'b Adhinistbatob. [MiBsoori,
of the property with an intention that it shall be a eecurity
or a payment to the consignee for the advances he has made.
In Ryherg v. SneU, 2 Wash. C. C. 103^ the consignor had
parted with his interest in the property before it came to the
possession of the consignee; there was no proof of any special
arrangement or agreement, and a lien for a general balance of
account was denied; but the principle was recognized, that if
the consignment to the factor had been founded upon any
special contract, which vested in him a.legal title to the prop-
erty, or if it bad been made "in consideration of advances
made or arrangement entered into on the faith of the consign-
ment or the like," the case would have been different. It
might be said that the advances here were not specially made
upon the faith of this particular consignment, but they were
made on the faith of this as of all future consignments which
should be made in the regular course of their special business,
and in pursuance of the arrangement which they had entered
into concerning it; and so it may very well be said that the
advances were made on the faith of this consignment among
the rest. It was intended within the scope of the arrange-
ment, and fell under the implied contract, resulting from their
course of business and the previous dealings between them:
Story on Agency, sec. 355. There was nothing in the conduct
of the consignor which was inconsistent with this view of the
matter. He had parted with all his right of property and
with all claim upon the goods. He acted in pursuance of the
previous arraugement, and in accordance with it; and it may
very well be inferred that such was his intention also, and that
when he had forwarded the invoice and bill of lading and de-
livered the goods to the carrier, all claim of right or interest
in them, on his part, had ceased. The attaching creditor
stands in his shoes, and can have no greater right or title than
he had at the date of the attachment.
The letter of credit contained these words: ''You are at lib-
erty at all times to value on us as against actual shipments to
the extent of three fourths of their value, at five to ten days'
sight" The statute concerning bills of exchange provides
(Bev. Ckxie, 1855, p. 293, sec. 3) that ''an unconditional prom-
ise in writing to accept a bill before it is drawn shall be deemed
an actual acceptance in favor of any person to whom such
written promise shall have been shown, and who, upon the fiuth
thereof shall have received the bill for a valuable considerar
lion." This language requires something more than a general
OoL 1866.] Value v. Cbbbe's ADBaNisTRATOB. 169
letter of credit; it must be a promise to accept a bill, and the
bill miiet be received on the faith of such written promise to
aecept it. It is the established rule of law that a written
fVEomise to accept a non-existing bill must point to the par-
ticolar bill, and describe it in terms not to be mistaken: 1
ParaoDB on Bills, 293, and note/. The statute seems to have
adopted this role. This letter of credit amounted only to a
general authority to draw bills for a given purpose, to indefinite
amoants, and, on uncertain times, within a general limitation;
it did not point to the particular bills, nor describe them in
terms by which they could be identified. It did not amount
to an ^^ actual acceptance" of the bill in question.
It was 8o held in a like case upon a similar statute in New
YoriL: Ulster CowfUy Bank v. MeFarUmj 3 Denio, 553. Never-
theless, it was a promise to accept and pay bills drawn on him,
which were to be negotiated by the drawer for his benefit, and
it was evidently intended to be shown to the persons to whom
the bills BO drawn were to be offered for negotiation, and to
enable him to realize immediately upon them; and as the pur-
chaser took the bill, and advanced money on it, upon the faith
of the letter, it is clear that he could maintain an action upon
it against the promisor to recover the amount which he had
advanced: Story on Bills, sec 462; Russell v. Wiggirij 2 Story,
213; Union Bank v. Coster, 3 N. Y. 203 [53 Am. Dec. 280];
Lonsdale v. Lafayette Bank, 18 Ohio, 126; Carnegie v. Morrisony
2 Met. 381; 2 Parsons on Bills, 109. It was therefore equally
effectual upon this transaction as if it had amounted to an
actual acceptance of the draft; for it created a liability against
this consignee as for so much money allowed upon this very
consignment. This alone would be sufficient to bring this case
within that large class of cases in which acceptances are con-
ndered as actual advances made upon the faith of particular
consignments.
The amount paid upon the faith of this letter came clearly
within the authority given by the letter of credit, and as the
\SS1 was never accepted, it becomes wholly immaterial whether
it were drawn for an amount which exceeded the limit of the
letter or not.
The evidence tended to show that Titus had practiced some
secret fraud in respect of the quantity of the cofiee, and the valu-
ation which he put upon it, for the purpose of fixing the amount
of his draft; but that did not change the character or effect of
consignment, nor does it afiect the rights of the parties
170 Valle f. Cerre's Administrator. [Missoari^
here. It was a general authority, and was to be taken most
strongly against the giver of the power. It left the matter of
the valuation to the agent; the banker could hardly be re-
quired to look beyond the letter of credit, the invoice, and the
bill of lading, and to reckon the expenses, fix the value, and
weigh the coSee; and if a secret fraud were practiced in these
matters by the agent intrusted with such a power, it would
seem that the principle ought to be applied, if it were at aU
necessary, that when one of two innocent persons must suffer,
it should be the one who gave the power and assumed the
responsibility of the trust and confidence reposed in his own
agent.
In this view of the case, it is evident that the clause in the
instruction given for the plaintiff which left it to the court,
sitting as a jury, to say whether "the said bill of exchange
was drawn in conformity to the authority contained in said
letter," was wholly immaterial. It really made no difference
whether the bill were drawn in conformity with that authority
or not Considered by itself, it was clearly erroneous, as re-
ferring a matter of law to the jury; but it is equally clear that
the defendant suffered no prejudice by that error; and the ver-
dict and judgment being for the right party, the case will not
be reversed on that ground alone: Rev. Code, 1855, p. 1300,
sec. 34; Oobin v. Hudgens^ 15 Mo. 400; Johnaon v. ArmdaUf 34
Id. 338.
In accordance with the views above stated, all the instrao-
tions which were asked for by the defendant were oonectly
refused.
Waqner, J., concurred.
Lovelace, J., did not sit.
The judgment will be affirmed.
To Givs Faotob Lmr on Goods OoNBXoinED but not AcruAUT Racnavm^
mtkb ooiuignment must be in terms to the factor; and ae against credttors and
snbseqaent ptirohasers, he most have made advanoea or acceptances upon tiie
faith of it. Delivery of biU of lading to the factor is a symbolic delivery of
the goods themselves, and entitles him to a lien thereon for advances: Dawk
V. Bradley, 65 Am. Dec 226, and note. That the title to goods consigned
passed to the consignee may be inferred by the jnry from evidence that on
eonsigning the goods and advising the consignee of the fact by letter attached
to the invoices, the consignors at aboat the same time drew sundry bills oo
the consignee, which the latter accepted, particularly where there has been
a oonrsa of dealing between the parties warranting snch inference: Holbrook
r. Wiffhi, 36 Id. 607.
Oet 1865.] MiLUKiN v. Shaplugh. 171
OnmBgnment of goods hj bill of lading Tosto tho property in tho oonatgnM
vben mnde in pamiaaoe of prior oontnct with the oonngnoe, and not otbeiv
wiw: Boimer t. Jliarah, 48 Am. Dec 754. Bat in Detka v. Pope, 41 Id. 76^
it vao held that » mere agreement to ah^ goods in satisfactioa of antecedent
ndranoes will not give the factor or consignee alien npon them for his general
hslsnoe until they oome to his actoal possession. For the general operative
sileet of a bill of lading, see note to Chamdler v. Sproffue^ 38 Id. 407; and
Wagkmd v. JVowfy, 39Id. 33S.
PBOtoBB TO AooMrr Bill to n Dblawh to amoont to an aoceptanoe of the
bill when drawn mnst describe it in snch terms that the promise can apply
to no other bill: Vam PktUY, Sloaii, 38 Am. Dec 207. Promise in writing to
aeoept bill not yet ia «ne will amount to an aooeptanoe of the bill when drawn
if it was taken on bdih of each pronuse: JTennftfy v. €Mde$f 33 Id. 280.
In Bead v. Manh, 41 Id. 263, it was held that such a writing woold amount
to an acoeptaBCS^ even thoogh the bill was not taken upon its faith.
Lktrr ov Cbxdit as AooMrtAScm.—'QtmMianBank v. Ta^lemr, 35 Am.
Dec 219, is a case veiy similar npon this point to onr principal case; see alio
Lwridmm ▼. J&yes^ 38 Id. 200. A promise to accept a bill for a fixed amount
is eqiuvalspt to aooeptanoe, not only as to the drawer, bat as to every party
who takaa the bill on the faith of that promise: 8imem v. Hanimm, 82 Id.
401, and note.
MlLLKIN V. ShAPLBIGH.
r» MiseouBX, 80C]
BsMKZVo — BioovKBT OV lioNXT Ck>LLionD BT Bank.— When
depoatted two drafts with a bank for collection, and this bank indorsed
lliem over "for ocdlection " to a second benk, between which two insti-
tntions tfaero had been mutnal and extensive dealings as bankers, by
which the first bank owed the second a balance of two thoosand dollars,
and whero the latter, npon collecting these drafts, applied the amount
thereof to the payment of this indebtedness, where it does not appear
that thero was any snch mntnal understanding or previous course of
dealing as would justify the inference that these drafts were paid in to
the second bank as securities on accoant, or were permitted to be cred-
ited on account when received, or that the proceeds were to be placed to
their credit in payment of previous advances or the general balance, or
that a credit was extended on the balance of account on the faith of
snch remittances, the real owner of the drafts may maintain an aotion
to recover their amount.
Thb opinion states the case.
Krum and Decker^ for the plaintiffs in error.
Olover and Shepley^ for the defendants in error.
By Court, Hotjibs, J. The plaintiffs indorsed and deposited
two drafts with Joeiah Lee & Co., bankers at Baltimore, for
eollection, who indorsed and sent them to the State Savings
Association of St. Louis for oollection as their agent. The
172 MiLLiKiN V, Shapleiqh. [MisBouri,
last indoniementB were expressed to be "for collection," but
the defendants (who were trustees of the association) had no
actual knowledge, at the time when they were received, that
the plaintiffs were the owners of the drafts. The drafts were
paid when due, the one on the twenty-seventh day of October,
and the other on the first day of November, 1860, and on the
twenty-ninth day of October intervening Josiah Lee & Co.
failed. On the fifth day of November following, the defend-
ants received notice from the plaintiffs that they were the
owners of the drafts, and that the same or the proceeds thereof
were to be held subject to their order. When the drafts were
received and collected, Josiah Lee & Go. were indebted to the
State Savings Association in the sum of two thousand dollars,
and the amounts of the drafts when collected were credited on
that debt. Before the drafts were deposited by the plaintiffs
with their bankers in Baltimore, the bankers and the defend-
ants had had transactions together as bankers. No advances
had been made, nor any credit given, on those particular
drafts, and no paper had been sent by the defendants to the
firm of Josiah Lee & Go. for collection. After the receipt of
these drafts, the amounts collected on them were never paid
or accounted for to Josiah Lee & Co. otherwise than by such
credit on account of their indebtedness.
On this state of facts, the court instructed the jury, in effecti
that the plaintiffs were not entitled to recover.
It may be taken as well settled, that where there have been
mutual and extensive dealings between two bankers, on a mu-
tual account current between them, in which they mutually
credit each other with the proceeds of all paper remitted for col-
lection when received, and charge all costs and expenses, and
accounts are regularly transmitted from one to the other,
and balances settled at stated times upon this understanding,
and where, upon the face of the paper transmitted, it always
appears to be the property of the respective banks, and to be
remitted as such by each on its own account, and the balance
of account is suffered to remain unsettled on the faith of such
mutual understanding, and a credit is given upon the paper
thus remitted or deposited, or upon the faith of that which is
expected to be remitted in the usual course of such dealings,
there will be a lien for the general balance of accounts, and a
right to retain the securities so received, or the amounts ool«
lected and on hand, as a credit upon the general balance in
settlement of such advances: Bank of MetropotU v. New Eng*
Oct 1865.] Million t^. SHAPLEiaH. 173
land Bank, 1 How. 234; Rathbone y. SanderSj 9 Ind. 217. Bat
where there is no such mutual arrangement or previous course
of dealing between the parties, whereby it is expressly or im-
pliedly understood that such remittances of paper are to go to
the credit of the previous account when received, and no ad*
vance is made nor any credit given on the basis of the par-
ticular bill, or uxx>n the faith of such course of dealing and
such future remittances, or where the special circumstances
are inconsistent with the hypothesis of such mutual under-
standing, and the one bank merely passes the proceeds of
paper remitted for collection to the credit of the other on a
subsisting indebtedness, which it happens at the time to have
standing against the other, there is no such lien, and no right
to retain and apply the money collected in that manner; but
the real owner of the funds may maintain an action to recover
the amount: Wilson v. Smithy 3 Id. 763. And such, we think,
was this case, on the proofs made.
The evidence did not show that there was any such mutual
understanding or previous course of dealings as would justify
the inference that these drafts were paid in to defendants as
securities on account, or were remitted to be credited on ac-
count when received, or that the proceeds were to be placed
to their credit in payment of previous advances or the general
balance, or that a credit was extended on the balance of ac-
count on the faith of such remittances.
There was nothing in the transactions proved which was
inconsistent with the right of Josiab Lee & Co. to draw im-
mediately on them for the money collected on these drafts.
And the fact that the drafts were expressly indorsed in full
"for collection" would seem to have a strong tendency to
negative the idea that they were intended to be paid in on
account of the general balance. No doubt a banker has a
general lien by the law of the land for his general balance,
upon all securities in his hands belonging to his customer
which have been paid in upon the general account or de-
posited as a security for advances on account, unless there be
evidence to show that he received the particular bill or se-
curity under special circumstances which would take it out of
the general rule: Davia v. Bowsher, 5 Term Rep. 488.
The evidence here fails to show that these drafts were either
paid in as security or deposited upon the general account as
a security for advances already made, or on a new credit
given, but rather tends to prove that they were received under
174 FoBD V. Anoblbodt. [Missouri,
special circumstances which would of themselTeB import tiie
oontrary supposition.
Nor did the Cocts show any warrant or authority fix>m Josiah
Lee & Go. to them to make that application of the fdnds when
collected. They were not even advised that the money had
been so applied, nor that it was to be so accounted for: Hoff-
man V. MiUer, 9 Bosw. 884; Bank of MetropoU$ y. New Eng^
land Bank.^Q How. 212.
For these reasons, we think the plaintiffs' instruciakms should
have been given and the defendants' instmctioii refiised.
Waqneb, J.y concurred.
Lovelace, J., was absent.
Judgment reversed, and the cause remanded.
Bamkxbs havb LnN8 upon Bnxs Tsdobsmd to Thim warn OouMjaom
by a oarresponduig bank to oorer a balaaoo ezoeeding the amount of nudi
biU due them from their corrospondentB npon tho Uttan* failure^ wbara
they have been in the habit of transmitting paper to each other for ooDoo*
tion, and the balanoe aroee oat of snch tranaactionfl^ and they may sno on
the bill for their own benefit, or transfer it to another for valne. Bat banker^
liens upon secnrities in their hands must be baaed npon a credit given upon
the faith of eoch secnrities, either while in poMeoflJon or in expectancy: Ai*-
mli V. Haddock, 44 Am. Deo. 683^ and note.
Tex prtooipal oass is oitid ahb DisnirouiBHSD in ^yrei v. Fcarmeri
^ Af . ^oni^ 79 Ma 421.
Ford u Angelbodt.
[S7 MisaouBi, QOl|
HoLDKR or BoL or Ezchanos cannot Rsoovxb as 1770X Atfuswai> Biu
WHIN Hx ONLY Shows Ck>NDTnoNAL AooEnANC% the terms of which
have never been complied with*
HoLDKB 07 Bnji IS Entitlxd to Absoluti Unoonbxtional Aogkftancb
ov HIS Bill, and may reject any other. If he relies npon a conditional
acceptance, he most show affirmatively that the condition has been conk-
plied with
Not Assionmint ov Fund. — Bill ov Exohanos showing npon its face
that it was intended to be negotiated, and which was afterwards nego-
tiated to plaintiff, and which npon presentment was refosed acceptance^
is not an equitable assignment of the fand upon which it was drawn,
although the drawee had promised to pay any balance that might be in
his hands.
AbSIONMXNT ov AOOOUNT MUST BS IN WrTTINO VNDBB StATUTX, but It 18
not Absolutklt Ksoxssabt that the writing be npon the same piece of
paper as the account. But if the account is in the possession of the as-
signor at the time he is claimed to have assigned it, and the assignment
is not upon it, it will at least throw some doubt upon his intention to
assign.
Oet 1865.] Ford v. Angxlbodt. 175
The bill sued od in this case was dated at Fort BQchanan,
New Mexico, addressed to Angelrodt and Barth, at St LoaiSi
Missoariy and read: ''At sight, please pay Elias Brevort, or
cnler, $387.47, due as per statement, January, 1867. Charles
W. Wemz." It was indorsed by Brevort to Knight A Ca^
and by them to plaintiff. The paper referred to by th« coart
in the opinion, -and which was offered in evidence by the
plaintiff, was in the following words: '^ Mr. E. Brevort: Please
deliver to L. R. Ford the money, draft, or check that yon may
receive for or upon the papers forwarded to St Louis by you
for me. Fort Buchanan, N. M., Sept. 16, 1857. C. W. Wems.
Accepted : Elias Brevort" The remaining fiaots appear suffi-
dently frota the opinion.
Mumfordf for the appellant
Tausrig and KeUoggf for the respondents.
By Court, Lovelace, J. The question in this case is,
whether the court erred in taking the case from the jury, by
instructing them that upon the evidence the plaintiff could
not recover. Two points are raised by the bill of exceptions
and brief: 1. The plaintiff insists that the defendants accepted
the bill sued on. and seeks to recover on their acceptance;
2. The plaintiff insists that there was an equitable assign-
ment of the funds in the hands of the defendants belonging to
the drawer of the bill.
1. The evidence shows that the defendants agreed to pay
the bill, provided the plaintiff would procure certain receipts
from Wemz, the drawer of the bill, who at that time lived in
Kew Mexico, and these receipts were never procured. This
ocmditional acceptance was written on a separate piece of
paper, and made no reference whatever to the bill in question.
But there were other circumstances in the case that would
enable thi3 jury to determine whether the conditional accept-
ance referred to this particular bill, and so far as that was
concerned, it might have been submitted to the jury. But
there was no evidence showing or tending to show that the
conditions of the acceptance were ever complied with by the
holder of the bill; indeed, the plaintiff's counsel admits that
they never wore. The holder of a bill is entitled to an abso-
lute and unconditional acceptance according to the tenor of
the bill, and he may reject any other: Story on Bills, sec. 240.
But if he relies on a conditional acceptance, he must show
afBrmatively that the condition has been complied with: Id.
176 Ford v. Anqelbodt. [MiBsonrl,
The drawee of a bill is under no legal obligationB to the holder
to accept, and he may impoee any conditions on the accept-
ance that he sees proper, and the holder or payee may rely
on the acceptance, and comply with the conditions, or he maj
reject it and have his bill protested for want of acceptance.
In this case there was no evidence to show that the payee had
^7er complied with the conditions of the acceptance, and there-
fore there was no evidence upon which the plaintiff could
recover upon an accepted bill, and in this respect the court
below committed no error; and this, perhaps, would be sufB-
cient to dispose of the case, for the petition clearly seeks to
recover upon an accepted bill. But inasmuch as the bill of
exceptions and briefs of the parties raise the other question, it
might as well be decided.
2. Did the bill operate as an equitable assignment of the
funds belonging to the drawer in the hands of the drawee?
The facts as proven show that on the 8d of September, A. D.
1857, one Charles W. Wemz executed and delivered to Elias
Brevort a certain written order, of which the following is a
copy. [See statement, 37 Mo. 52.]
The evidence also shows that at the same time Wemx exe-
cuted the above order, he delivered to Brevort a statement of
accounts rendered by defendants to Wemz, showing an in-
debtedness on the part of defendants to said Wemz in the
sum of $387.47; and that Wemz gave an order to Brevort at
the same time to deliver to the plaintiff the money, draft, or
check which he might receive on said papers.
Upon this state of facts, it is contended that there was an
assignment of the fund in the hands of defendants to the
plaintiff. Under our statutes, an account may be assigned in
writing, and it is not absolutely necessary that the assignment
should be upon the same piece of paper with the account; but
the assignment ought to show with reasonable certainty a
present intention on the part of the assignors to transfer the
account, and a present willingness on the part of the assignee
to accept the account; and where it is perfectly convenient for
the parties to write the assignment on the account, it is cer-
tainly the easiest way to express the intention of the parties;
and it will at least throw some doubt upon the intention of
the assignor when the account is in the possession of the as-
signor at the time it is claimed that the assignment was made,
and he fails to indorse the assignment on the account. If
Wemz intended to assign the account to the defendants, why
OcL 186S.] PoBD V. Angelbodt. 177
did he not write an assigmnent on the back of the aocounty
and send it at onoe to the plaintiff ?
Whj the neoeasity of this separate order, payable, not to the
plaintiff, but to Wernx's own agent, unlees he intended to re-
tain some control over the fond? Bnt the transaction wants
one very essential element of an assignment. It nowhere ap-
pears that Wemz ever delivered the account to the plaintiff
or ever ordered any person to deliver it to him; he ordered hia
own agent (Brevort) to collect the order or draft which he
gave him on defendants, and pay the proceeds to the plaintiff.
From anything that appears in the evidence, there was no
privy of contract whatever between Wemz and the plaintiff;
and the only right of action which the plaintiff shows is the
draft or bill sued on, which was indorsed by Brevort to Mc-
Enight & Ck)., and by McKnight & Co. to the plaintiff.
Bnt after all, the instrument sued on is a bill of exchange,
and not a mere order to pay over a particular fund: Story on
BiUs, sec. 3. It is payable to Brevort, or order. It shows on
its face that it was intended to be negotiated, and it was nego-
tiated, and it is only by virtue of ita negotiable character that
the plaintiff has acquired any title in it; and we think that,
after being refused acceptance, it would not operate as an
equitable assignment of the fund. In Kiinball v. Donald^ 20
Mo. 577 [64 Am. Dec. 309], it was hdd by this court that a
Mil drawn npon a particular fund mentioned in the bill could
net have the effect of an equitable assignment, although the
drawee had promised to pay any balance that might be in his
bands. In this case, if the bill was to have the effect of an
equitable assignment, that equity must be in favor of the
payee mentioned in the bill; but he treated it as a mere bill
of exchange, and so did his assignees, McKnight & Co.
In KimbcdL v. DoruMy «tfpra. Judge Leonard, adopting the
language of Lord GhanceUoi Truro, in Haddock v. Qaudellj 15
Eng. L. A Bq. 80, says: ^^An agreement between a debtor and
a creditor that the debt owing should be paid out of a specific
fond coming to the debtor, or an order given by a debtor to his
<aeditor upon a person owing money or holding funds belong-
ing to the giver of the order, directing such person to pay such
funds to the creditor, will create a valid equitable charge upon
BEnch fund; in other words, will operate as an equitable assign-
ment of the debt or fund to which the order refers." '^ But,''
Bays the same learned judge, 'Mf there be anything from
which a different intention ought to be inferred, as where the
Aic Dsa Vol. LXXXVm— 12
178 Ford t. Anoelbodt. [Missouri.
fond is to pass at a fotnre day, the matter resting for the
time being in agreement, or where the party retains the sub-
ject nnder his own control by giving the order, not to the
assignee, but to his own agent, the transaction is not allowed
to have the effect of a present transfer.''
The case at bar falls within two of the exceptions named in
KimbaU v. Donaldy supra: 1. The proceeds of the draft were
to pass to plaintiff at a foture time, — that is, after Brevort
had collected it from the defendants; and 2. Wemz retained
control over the subject by giving the order to his own agent
We think there was no evidence showing an assignment
nnder the statute, or an equitable assignment of the fond in
the hands of the drawee. There was no error in the court in-
structing the jury that there was no evidence upon which the
plaintiff could recover.
The other judges concurred.
Judgment affirmed.
Beait Bon HOT OpxRixa 4s Amaanaan mnh Aooipnnv altlKNigh
diawn for a speeifio nun and agunit funds of tlio dmwer ia tlio hands of llis
diawaes ffanri$ y. Olari, 51 Am. Deo. 862; CUpmm v. WMfe^ 67 Id. 464|
Btffonf ▼. iiaiuiali; 61 Id. 488; JOxtott ▼. 2>oiialtf, M InJfortiiiy.
Mcmerf 70 Id. 223^ it was held that aa oider dmwn on a paitieiilar fbnd,
after notioe to drawer, oonstitates aa eqnitaUe asngnment^ and binds the
fund |iro tanto In the hands of the diawee. And in WheaUeif ▼. Strobe, 73 Id.
623; it was decided that an order operates as an equitable assiffimwit of the
debt or fond against which it is drawn, where it is of the faU amomnt of the
demand, and is given for a yalnable consideration, althoogli it is not avail*
able as a bill of exchange for want of a written acceptance. In the notaa to
these cases will be found nnmeroos references.
AooBPTAifGB OF Bux OF EzGHAiTOE UPON CoNnnnuf, EviBcr or: See
DcasisY. McOrtadyf 72 Am. Deo. 461, and note; ITeOi ▼. ^rj^ton, 62 Id. 760;
NewhaU v. Clarh, 60 Id. 741.
The PRI9GIFAL GA8B IB CITED and distingnished in BdgeU ▼. Tadbor, 40
Mo. 623, where a certain transaction was held to be an assignment of a fond.
It is further cited in Bank qf Commerce ▼. Bogjf, 44 Id. 13; where the ooart
say that a bill of exchange ia not of itself an assignment of the fond upon
which it IB drawn, even when negotiated for yalne, bat is 'a ciroomstanoe
tending to show such an intention, and with other facta, may be snfBeient to
establish snch a state of affiurs. It is cited in Taylor y. Newmtm, 77 Id. 201^
to the point that a bill of exchange imports a eonsidsratioa.
GASES
Di na
SDPEEME JUDICIAI OOUBT
NKW HAMP8HIIUL
Ela V. Enoz.
141 MMW UAMnasam, yL}
Bli& €» Oons MAT PMnBLT iMOLtmrn MoMnr Paid worn Oanm ov
MOMBHjto bo ttMdm evidnot oa tfaa tritl ia pnifiag tittt or
okhor oompotaot footb
or HiLKZiro Subtrb avd Flab% Vwskmd vk PsiPABna CUn
Km TbiaIi» and oron whoro tlio plaao m mod on tiio tria], m noi al*
lovaUe in tiio bffl of
QoEsnoNB of ooBts. The plaintiff became noDBuit, and the
defendant taxed as coete, in addition to the ordinary travel^
attendanoe, and attorney fee, money paid fixr copies of deeds^
and expenses of sarvey and plan. Objection was made to the
last two charges^ and the qnestions reserved.
Danoj for the plaintiff.
Fowler and Chandler^ for the defendant
By Courty Sabobnt, J. In this case it appears in evidence
that the amounts charged for copies of the deeds were actually
paid, and were reasonable charges, and that these copies were
procured to be need in evidence on trial, and were copies of
deeds in the defendant's chain of title, which he must use to
show title in himself to the premises in controversy. We
think this charge should be allowed the same as a charge for
taking a deposition to be used in the case. Had they been
copies of deeds not in the defendant's chain of title, and not to
be used in evidence on the trial, however necessary they might
have been to the defendant in preparing his case, they would
not be aUowed.
180 Ela 17. Knox. [N. H.
The bill for the enrvey and plan is as follows: —
To paid surveyor for two days' surveying land in
AUenstown $5 00
To paid surveyor for making plan, 2 00
To paid two assistants, two days each 4 00
$11 00
And it appears in evidence that the siimB charged were ac-
tually paid, and were reasonable charges, atid that said survey
and plan were necessary in order to the proper understanding
and trial of the defendant's case; that said survey and plan
were made in good faith by defendant, and by direction of his
counsel, with the expectation that the cause would be tried by
the jury; that the surveyor would be an important witness for
the defense, and that the plan would be of great importance
to the defendant; that the surveyor had been examined by
defendant's counsel, and full minutes of his testimony taken;
that he was expected to attend as a witness on the trial, and
had agreed to attend when requested, and bring and use the
plan which he had made; and that his amstants were also
relied on by defendant as important witnesses, who knew the
location of the premises in controversy, and went to point them
out particularly to the surveyor, and that they had also agreed
to attend as witnesses at the trial. But none of the witnesses
were ever summoned, or attended court as witnesses, but
plaintiff, after seeing the defendant's plan and learning what
his proof would be, became nonsuit.
We think this charge must be disallowed. Each party
must prepare his case, look up his witnesses and examine
them, and if the controversy is in relation to real estate, sur-
veys and plans often become necessary on both sides. But
for the work of preparing his case and making his surveys
and plan9 he may be obliged to pay his attorney and his sur-
veyor, bat cannot charge these items in his bill ot costs againal
the other side in ease of nonsuit or default or a trial by jury.
All that can be charged for the surveyor is for the time he is
in attendance as a witness.
This charge of eleven doUars is disallowed; the balanee d
eleven is allowed.
VuKTMoa^ Pabtt n Givxl Acraam m SnnxLiD xe Oons: Lmak v.
Mms^ 59 Am. Dec. 49.
ExFiNsis OF PLAnmrr bktond ma Taxable Cbsis mat bb Allowbb
to him by the jury in aofeidDs ftoandiiig in damagee: Lin9kif v. Bmkndt^ S8
Am. Dee. 79.
JuDfi, 1865.] Ela v. Knox. 181
HWHHART CSABOXS AcnTALLT FaID BT FaBIT tB COCrBSI OF CaBS SM
fnper items <i{ a oort4nIl: Cbe t. Cftarteton «lr. fn«. Cb., 4$ Am. Deo. 77L
lOM^ OF EXPEMSB RbOOVSRABLX BT PrCTAXUCTO PaRTT All OOBIB. —
1. JSis^ to CobU, — Hie ri^t to costs is to be rqp^rded as whoHyof ststaftsty
«aigm: Superrimfn cCc. ▼. Briggs^ S Deiiio» 173; State v. Kinng, 41 K. H. 291.
Id legal actions, luiless the yvrtj cUinung costs can show a statute m Ua
&Tor, he most fail: Stoddard t. CUuhe, 9 Abb. Pr., N. 8., 310; FiXbun^ r.
loiee, 37 Hun, 237, 240; Dow y. Ufdate, 11 Neb. M, 96; /^ffin^ ▼. AnA,
68 Mich. 246^ 258; questions affecting tlieir lecoyciy arise msinly under tte
statutory provisians existing in Teferenoe thereto: See FUher ▼. Hmtts , U
How. Pr. 156; BwmeU ▼. fTes^a^^ 15 Id. 420; Satdder v. Omi, 28 Id. 16i|
8. C, 18 Abb. Pr. 207. And such provisions are to be eonstnied striully:
Shed ▼. Raibroad Co., 67 Mo. 687; Crqfta ▼. Bnmdt, 68 K. T. 108;
Comty ▼. Madioon ComUy, 10 Keb. 308. But in eqfuitable actions eoets
not dependent npon any statutory prorisions, and for the most part reel
in the sonnd discretion of the court, to be exercised under a eonsideratisa
sf all the circnmstanoes of the particular case, and wit^ reference to tba
general rules of practice^ and as equity may reqoire: EkuUmm t. £irii; S
J^obns. Ch. 317; Sttrnt y. Lodoe, 48 Me. 425; iJeaf v. Btaltes, 78 Pa. 8t. ^
lob y. Skmmaie, 20 8. O. 23; Moating y. Ame$, 88 Wia. 286; Orag ▼•
Ikmg^iertg, 25 OaL 266; WiBkam t. MeDomgaO, 39 Id. 80; Bhdt y. BMt,
SMonL 515; and see 0<i« v. Cfardner, 105 HI. 436; Howe y. Ilutdanaon, 105
Id. 601. In a friendly suit^ costs are not allowed: State y. Adame, 68 Vt. 69C
2. What Coeia Inehtde, — A distinction has been made between costs aoi
fees. Costs are defined to be an allowance to a party for expenses inenxred
in oanducting his suiL Fees are a compensation to an officer lor sen ices m*
dsred in the progress of the cause: Muaeer y. Good, 4 Sei^. k R. 247, 248;
■se Apperaon y. Insurance Co,f 38 N. J. L. 388. Under esfly statutes on the
■abject^ costs mainly consisted of the fees allowed to attorneys and oemomi,
ioe their services in the management of the proceedings, and the rale waa
tiiat a party not an attorney, conducting a suit or defense in person, was not
entitled to costs, although he might recover his disbursements: Stewart y.
Sew York a P., 10 Wend. 597; People y. Steuben G. R, 12 Id. 200. Under
more recent statutes, costs may be said to be composed of the certain sum
iDowed in lieu of attorney's fees, of the fees of officers and of witnesoos,
ud such other disbursements as became necessary in the progress of the a^
^>ou: See Stafford v. Onderdonk, 8 Barb. 99; HanUUon v. Btaler, 30 How. Fk;
96; a C, 19 Abb. Pr. 446; Beldmg v. Conibftn, 4 How. Pr. 196; Wooater y.
Bandy, 23 Blatchf. 113; Ortgg v. CraUree, 33 HL 273; Randall v. FaJOener^
41 GaL 242; Nurae v. Jwtua, 6 Or. 75; Meagher v. Van Zandt, 18 Nev. 230;
BaB y. Vaaon, 56 CkL 264; Storp v. Kemp, 51 Id. 401.
3. CoatB Oo to PrevaUmg Partg, — In dvil actions at law, the prevailiBg
Pttty is entitled to costs, and they follow the judgment as of course, either
^ verdict* nonsuit, or default, and practically are taxed, allowed, and in*
eorporated into the judgment by the clerk without any special order, unless
npoQ objection or special hearing: Lewia v. Roaa, 37 Me. 230; 8. C, 59 Am.
l)ec 49. The reason for giving costs to the prevailing party is thus stated by
^e framers of the New York code in their report to the legislature: "The
losing party ought* as a general rule, to pay the expense of the lirjgation.
He has caused a loss to his adversary unjustly, and should indemnify him for
it The debtor who refuses to pay ought to make his creditor whole *': New
^ork Code Commiasioners' Report, 1848, p. 208; and see Martin v. Kammaaf
11 How. Pr. 567. And although the prevailing party may rsoover only a
182 Ela v. Enoz. [N. H.
part of hii dumiMl, he li entitled to costs: Samnden ▼. /VoU; 5 Pick. 200|
6 O., 16 Am. Deo. 394; VTood y. Bromn, 6 Daly, 428; McRe^maXdM y. Catm^
7 Humph. 20; WcMy, CMngitm, 76 N. a 150; Smiths. Broyki, 15 B. Moo.
461. The general role is applicable to suits in equity as well as at Uw, and
will be applied mdeas the lodng party can show that equity requires a dif •
fecent judgment: Ckarh y. Resd^ 11 Pick. 448; Bmtiiar y. McerOjoir^, 2 Wood.
A*M. 168; TtmpU y. Lawnn, 19 Ark. 148; Brook$ y. Byam^ 2 Story, 553.
Bat a Judgment for costs cannot be entered in layer of any one not a par^
to the action or suit: YFim^py. Omner, 43 N. H. 167; PaUenfm y. Ofioen
ttc, 11 Ala. 740. And costs in an action at law cannot be awarded to both
parties: Mdhnaldy. Evatu^ 3 Or. 474.
4. DiilmnemKnts or EaepenaeB, — Generally speaking, the preyailing party in
the action im entitled to tax, as part of his costs, all his necessary disburse-
ments, and these are held to include all necesaary charges or expenses acta-
aUy paid by such party in the course of the case: Finch y. Calvert, 13 How.
Pr. 13; Swartedv. Hogera, Z Kan. 380; Coxy. Charleston eic Ins, Co,, 3 Bich.
831; 8. C, 45 Am. Dec 771. But since disbursements are a part of the costs,
tiiey cannot be recorered where costs are not recoyerable: Ptet y. Worthy I
Bosw. 653; and necessary disbursements in the action only are allowed:
Band y. Baartf 9 Id. 683; and they must haye been actually paid, or liability
for their payment actually incurred: Haynes y. Mother, 15 How. Pr. 216.
5. Feea qf Officers are included in the term "costs" in a statute giying
costs in general, and are properly taxable as disbursements in the case: Pem^
mhama R. R. Co. y. Ke^or, 22 Pa. St 356. Thus fees of the clerk and
8heri£( where they are actually charged by such officers, are properly taxable;
Case y. Price, 17 How. Pr. 348; S. C, 9 Abb. Pr. Ill; Shed y. Railroad Co.,
67 Mo. 687; Swartul y. Rogers, 3 Kan. 380; so of the fees of referees: Shdts
y. WhUmeif, 9 Id. 71; S. C, 17 How. Pr. 471; so of commissioner's fees on
necessary affidayits: Dt WiU y. Svifl, 3 Id. 280; and see Burnett v. WeetfaJO,
15 Id. 430; and fees for stenographer's notes haye been allowed: Reynolds y.
Mayor etc, 14 Abb. Pr. 176, note 1; Sebley y. Nichols, 32 How. Pr. 182; and
•ee Wright Y. Wilson, 98 Ind. 112; and are properly allowed when the stem^-
tapher's seryices are rendered in pursuance of a direction of the court: The
A Luchenbach, 19 Fed. Bep. 847; but in some cases they should be disal-
bwed: See P/andler Barm Extracting etc Cc y. P/andler, 39 Hun, 191; Ar-
mow y. Phehn, 21 How. Pr. 88; Oilman y. Oliver, 9 Bosw. 589. Costs for
transcripts of the stenographer's minutes to be used in settling bills of except
tions were disallowed in James y. Emmet Min. Co., 55 Mich. 347. Although
no fees are fixed by statute for the care of property held by a sheriff under
attachment, the officer is neyertheless entitled to reimbursement for his rea-
sonable charges therefor, and it is proper to tax these charges as part ol the
costs: CUy Bank v. Tucker, 7 Col. 220; Jones v. Thomas, 14 Ind. 474. But
see Oenesee etc Sav. Bank y. Ottawa Ch\ Judge, 54 Mich. 305. And under
the Illinois statute, the rent of a room in which to presenre attached articles
is properly taxed as costs: Walker y. Welch, 14 IlL 277. In Nebraska, in the
absence of a statute authorizing it, there is no authority whateyer to allow
an attorney's fee, and tax the same as costs in the action: Hardy v. MiUer,
11 Keb. 395; Dow v. Updike, 11 Id. 95; Otoe County v. Broum, 10 Id. 394.
The term "expenses" does not include counsel fees: Marshall Fish Co. y.
HadJUy Falls Co., 5 Cush. 602; nor are they included in the term "costs**:
Wright, 121. Compare Smith v. Fisfter, 3 Utah, 23; fn re Strauss y. Meyer^
22 Fed. Bep. 467 (Cir. Ct Mo.); City qf Lockport v. FUts, 39 Hun, 221.
ti. Fees qf Witnesseit are also properly taxable where witnesses cun legally be
June, 1865.] Ela v. Knox. 188
eaDed and ezamiaed: JdZsry. Tkomfrnm^AUjuk. t O. 200; BagmailY, Um^
derwood, 11 Price, 010; iVmmfARudd J?. R. Co, ▼. Keifer^ 22 Fk. 8t SM|
LoQrmm ▼. Cmrrant 10 Fhila. 140; Ch^ipeii ▼. Bnmm^ 11 Fkige^ 608. Com-
pwiMfion to wxtnenes ib a part ol the cost ol an actual aa nmch aa any olhar
•tatatory charges m and about the aame: Draparv, BuxUm, 90 N. C 18S; 186.
And it has generally been held that witneates who attendoourt at the reqneat
eitkpurty, without the service of a safapoenay are entitled to f ess and milsags
lor attendance^ and that fees and mileage thna paid would be a neoeaniy dis-
Jbnnement in the action, and properly taxable aa sooh against the def eatsd
par^: MeWiOiamM ▼. Hoptins, 1 Whart 276; Lagnmt ▼. Ommm, 10 FhiU.
140; Ommmcm v. Oumumm, 41 N. H. 128; Farmtr y. Storer^ 11 Pick. 241;
CDMira, Meagher ▼. Van Zandt^ 18 Nev. 230. So a party is entitled to tax full
fees for his writneaaes, thongh the same persons may have attended court as
witneaeea for another party in another cause at the same term: McHMgh ▼•
G&Mo^o eCe. B. i?. Co., 41 Wis. 81; Fiona v. Thwn^ 8 Tex. 382; RMaon r.
Amis, 17 Oa. 215; WUUtik v. Redded 19 Wend. 82. And where the witness
rsaidsa at a distance from the courts his fees for attendance on Sunday may
be taxed as irell as those for his attendance on other days: MtuooU ▼. Rwngt,
27 How. Pr. 85; SehoU v. Bemmm, 1 Blatchf. 564. But the witnesses must be
material anid neceaaary, otherwise their fees are not taxable: Dton ▼. WU'
tions, 3 Hill, 376; PUx ▼. Ncuh^ 16 How. Pr. 03; Irwin v. Deyo, 2 Wend.
285; Flower ▼. Oardner, 3 Coul B., N. S., 185. And when a witness is sub-
pcernaed at a place where he is found during a temporary absence from bis per-
manent place of residence, the necessity of subpcanaing him away from his
home mnst be clearly shown to entitle the party to an allowance of increased
trsTel fee: Mead v. Mallory, 27 How. Pr. 32; Sargent v. Warren, 41 Hun,
103w Compare P/andler Barm Extracting etc Co. v. P/amiler, 39 Id. 191.
And under a provision that, ** whenever any person shsU sue as a pauper, no
officer shall require of him any fee, and he shall recover no costs," it is held
that aao suing in forma pauperis, and prevailing in the action, is not entitled
to recover the costs of his witnesses: Draper v. Buxton, 90 N. C. 182. It is
held that an attorney is not entitled to witness fees for attendance in a court
in which ho actually practices: Mc WUUamo v. Hopkins, 1 Whart. 276. In
Kew Tork, no attorney in any cause is entitled to witness fees for attending
as a witness in sudi cause. But where counsel attends in good faith as a
witness, and is retained as counsel after he arrivea at court, his fees are tax-
able: Reynolds v. Warner, 7 Hill, 144. See Taais v. Schmidt, 25 How. Pr.
M>. Wliere a member of the same firm as the attorney who conducted the
caose attended as a witness, his expenses were allowed: Bviler v. Hdboon, 7
DowL 157; S. C, 5 Bing. N. C 128. A party examined in his own behalf is
not entitled to fees and expenses for his own attendance as a witness: Parker v.
Martm, 3 Pitta. (Pa.) 166; Logan v. Thomas, 11 How. Pr. 160; SUere v. Miller,
30 Id. 7; Christy v. Christy, 6 Paige, 170; but see, contra. Van Duaen v. Bissell,
29 How. Pr. 481; Rogers v. Chamberlcm, 7 Abb. Pr. 452; JIanna v. Dexter, 15
Id. 135; Howes v. Barber, 10 Eng. L. k £q. 465; and if a party be made a
witness by his adversary, he is as much entitled to fees as any third person,
and such fees are properly taxable: Hewlett v. Brown, 1 Bosw. 655; S. C, 7
Abb. Pr. 74. And the fees of a witness taken under a commission are prop-
erly taxable: Dmhom v. Sherman, 19 How. Pr. 572; S. C, 11 Abb. Pr. 152;
so of expenses incurred in executing commissions for the examination of wit-
nesses, and actually paid by the party: Cox v. Charleston etc. Ins. Co,, 3 Rich.
331 ; S. C, 45 Am. Dec. 771; compare Roumage v. Insurance Co., 12 N. J. L
9.5: but this mnst not inclndu fees of counsel employed abroad on the execu-
184 Ela v. Knox. [N. H.
tion of the oomminiini: i>iciiikim ▼. Sherman, 19 How. P^. 672; & C, 11
Abb. Pr. 152.
7. Expeme fif Printing Papers to be used on any heftring, when required
by rale of coart, is properly allowed: Northampion Ina. Co. v. Stewart, 40
K. J. L. 103; Dennie ▼. Eddy, 12 Blatchf. lOS. Bat it ia otherwise as it i«-
epecta chargea for oseleaa and prolix matter in aach papers: Crippen y. Brown,
II Pttige, 628; Bogert ▼. Bogera, 2 Id. 458; Wileon ▼. Bailroad Co., 57 Mich.
155. Bzpenses paid for room-rent, fael, and lights necessary for the par-
poses of a reference are properly taxable: Baileg ▼. Hau^ord, 10 Wend. 022;
BO of a fair and necessary disborsement for serving sunmions and oomplaint^
or notice of the object of the action: Com ▼. Price, 17 How. Pr. 348; 8. C, 9
Abb. Pr. Ill; Benedict t. Warriner, 14 How. Pr. 568; and printer's fees for
advertising sheriff's sales may be collected as part of the costs in the case:
Gardner ▼. Brown, 22 Ind. 447. See Murpkjf ▼. Jones, 7 Mo. App. 569. Bat
snms paid for plans and measurements, and for compensation of experts, be-
yond their fees as witnesses, are not properly taxable as necessary disburse-
ments: MM: ▼. Cky ef B%iffaJlo, 87 K. Y. 185. So, in an action to recover
the possession of lands, the surveyor's fees in procuring the boundaries of the
land is not a disbursement in the action which the prevailing party has a
right to charge in his costs: Haynes v. Mother, 15 How. Pr. 216; and gener*
ally speaking, no expense incnrred by a party in preparing for an action, or
in ascertaining his rights for his own benefit, is a disbursement in the action:
Id. See also Hathaway y. Boach, 2 Wood, k M. 63. And such is the doctrine
of the principal case. In Whipple v. Ownberkmd Cotton J(fg. Co,, 3 Stoiy, 8^
the expenses of a survey were ordered by the court to be charged equally to
both parties. The expenses of office copies d deeds, necessary in a trial, and
the expense of taking depositions, if used upon the trial, are held to be prop-
erly taxable: Inhabitants v. MiU Pond etc, Co., 5 Pick. 540; Washingtan Bank ▼.
Boston Class Mam^f., 6 Id. 375; Lamb v. Stone, 11 Id. 527; G.AC, etc, B,R
Co. V. Shxmsich, 61 Tex. 3; so of expenses paid for neoessaxy copies of ex-
ceptions, etc., for court use: Gardner v. Gardner, 2 Gray, 434; but the
expenses of printing or copying briefs are not to be included: Bowditch MmL
Ins. Co. V. Winslow, 3 Id. 415; compare Neff v. Pennoyer, 3 Saw. 335; nor are
expenses for draughting or copying indorsements of papers properly inoluded:
Abbott V. Johnson, 47 Wis. 239; and the cost of an abstract of title is not a
taxable disbursement: Hoyt v.' Jones, 31 Id. 389. And where actions are
brought by several plaintiffs against the same defendant, and certain docu-
ments are used in all the cases, the expense of such documents is not prop-
erly taxable as a disbursement in each case, in the absence of proof that such
sam was paid in each case: Jermam v. Laihe Shore etc B, B. Co., 31 Hun, 668.
Charges for revenue stamps required on the writs in a salt were disallowed m
Ferguson v. State, 31 K. J. L. 289.
8. The Federal Courts AHow Costs to the prevailing party, and unless other-
wise provided by act of Congress or rule of coart> according to the ratea
allowed by state law: Ethridge v. Jaeluon, 2 Saw. 598; Haihaway v. Boack,
2 Wood, k M. 63; Wolf v. Conneeticut etc. Ins. Co., 1 flip. 877. Costs in those
courts are now controlled by the act d 1853 (10 U. S. Stats, at Large, 161;
U. S. Rev. Stats., sees. 823, etc.), which regulates fees and costs which are
striTtiy chargeable as between party and party: See Bthridge v. Jadaon, 9
Saw. 593; Trustees v. Greenough, 105 U. S. 527; Garretson v. Clark, 17 Bhitcht
256; Troy Iron etc. Factory v. Coming, 7 Id. 16. Witness fees are not taxable
onder this act unless they have becoi actually paid: Secor v. 7%e Higlilander,
19 How. Vr. 334; and it has been held that tjnveling fees paid to a witness
June, 1865.] Whittibb v. Town op Franklin. 185
who atteads ^otaaAaaiSLy, witlHmt a sabpcBBa, and meraly at the reqaest of
the provaiUng party, an not taxable: Wcodruffy. Bctmeif, 1 Bond, 628;
Spamldiag v. Tucker, 2 Saw. 50; DnOiU v. Parriah, 5 MoLeui, 241; Init lee
Sawjferv. AtUtmanHc Vfg^ Co., 5 Biee. 165; Andermm v. Moe, 1 Abb. U. 8.
SS9; aad in a saH in equity the coortwfll exercise dleereticm as to the allowance
of tisvelingexpeoseBof witnesses: DemutY, Mtfy, 12 Biatcht IStf; apamUing
▼. Tmdber, 2 Saw. 50; and see Woo&ier ▼. Bandy, 23 Blatehf. 112. Hie ex-
penses of printing testimony for the convenience of the conrt are not taxable
aa ooets against the losing party in the national coorts: Spcmlding v. TVdber,
2 Saw. 60. So it is not the practice of the United States sopreme court, in
caaes brooght before it nnder its appellate jurisdiction, to tax as costs die-
iMirsenienta by counsel or parties for printing briefs; but a docket fee and
^isbarseoients for printing objections in the nature of pleadings are taxable:
Mk parte Hugba, 114 U. S. 548. In a patent case, certified copies of papecs
pat in evidence, pertaining to the text in and forming pert of the record of
proofs for final hearing, are properly taxable: Wooekr v. Handy, 23 BlatchL
112; but the following items are not: Expenses of a messenger in bringing
amodel from the patent-office to ose on a motion for a preliminary injunction;
teavding expenses of the solicitor; cost of a box for an exhibit; cost cl moving
exhibits; cost of machine exhibits or models not from the patent-office, and
not procured under an order or rule of court; and the cost of photo-lithe-
graphic sketches, not from the patent-office, but introduced by witnesses in
giving evidence: Id.; and see ffueeey v. Bradky, 5 Blatehf. 210; Woodrt^Y,
Barney, 1 Bond, 528; Ocrmiy v. Marttwald, 23 Blatehf. 248. It was also
lisild that items for fees of witnesses^ not paid to them for attendance in a
caae, when they were paid fees for attending in other cases, are not taxable
in the absspoe of explanation as to why they were not paid: WooeierY, Handy,
S Id. 112.
Whittibb u Town op Franklin.
[4S Nsw HAXPSHm, 28.J
QrmoHS or Wmmsn, vor Expsbts, abb Sokxtdcbs Admosiblb vbom
Kbcbbsiit, and to prevent the failure of justice, as in questions of iden-
tity of person, handwriting, sounds, sizs, distance, and the like. But
when the facts upon which the opinion is formed can be stated and de*
scribed, they must be, and the jury be left to form their own opinion.
T^mXOMT OF WITHB88 THAT HOBBB AT TiMB OF AOCIDBNT DID NOT Af-
FBAB TO BB Fbightbnbd, but suUgr, is •^miaaihiA withiu the rule which
admits opinions from necessity.
SranDTOB OF Pabtiodlab IvsTAHcn OF Vicious GovDrcr is admissible to
prove the bed habits of a horse at the time of an accident.
Cass. The plaintiff sought to recover damages for injuries
snstained by reason of an alleged defect in a highway in the
defendant town. A point in defense was, that at the time of
the accident the plaintiff was driving a horse, known by him
to be viciot&s and unsafe, and that his injuries were thereby
caused. On the trial, a witness was permitted to testify, in
sabstaoce, that the horse did not appear to be frightened, but
18G Whittixb v. Town op Fbanklin. [N. BL
Bulky, which testimoiiy was objected to by the plaintiff as in-
competent, being merely the opinion of the witness. Evidence
of the bad habits of the horse, from the time he began to be
used down to the time of the accident and the trial, by show*
ing particular instances of bad conduct and vicious acts, many
of which were proved to have been known to the plaintiff, was
admitted, and the plaintiff excepted. There was a verdict for
the defendant, which the plaintiff moved to set aside.
By Court, Bellows, J. As a general rule, opinions are not
evidence. One exception is as to opinions of experts in mat*
ters of trade, science, and skill; and there is another arising
from necessity, as in the case of identity of persons, handwrit-
ing, sounds, whether of a human voice or of some musical in-
strument, and if of a human voice, whose voice, and the like.
In these and a vast variety of other cases, experience shows
that opinions entitled to credit in judicial investigations are
formed from minute peculiarities of form, shape, color, sounds
etc., that cannot be described in human language so as to con-
vey any accurate impression of the object, and therefore, un-
less opinions are received, there must be a failure of evidence.
When the fEtcts and peculiarities upon which the opinion is
formed can be stated and described, they must be, and it is
then for the jury, and not the witness, to form an opinion.
Whether a particular case bejongs to the class where opinions,
ex necesdtatey are admissible or not, it is often difficult to de-
termine, and the authorities, therefore, are not always in har-
mony on the subject. A marked example of this want of
harmony is found in the decisions on the proof of value; it
being held in New York and other states that opinions are
admissible of necessity, while in this state they are excluded,
and, as we think, without inconvenience to the courts or to liti-
gants. It is true, there may be cases where it would be con-
venient to receive the opinion of a witness at once to the value
of a commodity; but in most cases where there was real con-
flict, the courts would be likely to be embarrassed by large
numbers of conflicting opinions, which, upon many subjects,
such as horses, might easily be obtained, and to an indefinite
extent, affording to the jury no valuable aid, but leaving them
after all to form their own opinion upon the facts disclosed.
The question, then, is, whether the testimony of the witness
that he saw in the horse no appearance of fright, and that he
appeared rather sulky, comes within the rule which admits
June, 1866w] Whtitieb v. Town op Fbanklin. 187
opinions from neoessity; and this makes it necessary to de-
termine whether the indications of fright or of a sulky, ob-
stinate temper can ordinarily be so described to a jury as to
enable them to make the proper inferences. If not, and ex-
perience shows that a man of common observation may ordi-
narily detect the existence of fright or a sulky temper by
marks and peculiarities of appearance that cannot be de-
scribed, but which at the same time are reasonably reliable,
then opinions, as in the case of identity, would be admissible.
Upon this ground, proof of identity by opinions, in a great
Tariety of cases, has been constantly received; such as the
identity of person, handwriting, animals, and even inanimate
objects; so, when the identity is detected by the ear, as the
sound of musical instruments, the discharge of a pistol, the
human voice, and the like.
So it has been held that opinions as to the age of a person
come within this principle: De Witt v. Barh/j 17 N. Y. 844;
and so held in Morse v. State^ 6 Conn. 9, if accompanied with
the facts on which the opinion was founded.
It is held, also, that opinions as to whether a person is in-
toxicated may be received: People v. Eattwoodj 14 N. Y. 662;
so, as to the existence of a disease when perceptible to the
senses: Milton v. Rowland^ 11 Ala. 732. So it is held that
a witness may state that a slave appeared to be healthy: Beth'
nett V. FaUy 26 Id. 605; or that a person '' was sick," " had
fever," '* was pregnant," etc.: Wilkinson v. Moedey^ 80 Id. 562;
although in BM v. MorriaeU^ 6 Jones, 178, it was held that a
witness could not state, from the appearance of a slave, he
believed him in good health; but it was otherwise decided
ill Brown v. Lester^ Qa. Dec., pt. 1, 77.
In New Hampshire it has been held that a witness may
testify that a horse appeared well and free from disease in a
genenJ sense, for that would be matter of common observa-
tion; or that in running round he showed distress in breath-
ing; but whether the horse was unsound or had a particular
disease, as the heaves, a non-expert could give no opinion, for
that is a technical question: Spear v. Riehardeonj 84 N. H.
428.
In WiOis V. Quimby, 81 N. H. 489, it was decided that a
statement of a &ct open to observation of common men is ad-
missible; as that a horse's feet were diseased, and that he was
unsound in his feet; for this is clearly open to the observation
of every one, whether experts or not
188 Whittieb v. Town of Fbanelin. [N. H.
In Patterson y. Colebrookj 29 N. H. 94, where the conditioii
of a highway at the place of an accident was the subject of
inquiry, it was held that it was not competent for a witness to
state that he saw no occasion for the accident; for that is an
opinion, not a description, of the road. But in Lu/nd v. Tyngd'
boroughj 9 Cush. 36, it was held that a witness might state
that '^ there was a bad place there, — a culvert that I thought
a dangerous place; and also that the condition of the culvert
was bad"; the court, Fletcher, J., saying that this was merely
descriptive in very general terms of the state of the road,
but that defendants might have required it more in detail;
that the general form of expression did not make it an opinioD
merely, and not a statement of facts.
In Robinton v. Fitchburg & W. R, &, 7 Gray, 92, where the
question was whether the plaintiff was negligent in approach-
ing the railroad track as he did, the opinion of a witness that
there was no other way was held to be inadmissible. In Cur-
rier v. Boston & M. R. R., 34 N. H. 508, it was held that a
statement that there was hard excavation, but nothing ap-
proaching hard-pan, is not opinion, but fact, a knowledge of
which may be obtained by common observation.
These cases, though not altogether harmonious on all points,
but differing in the application of the principle which is
recognized, are in accordance, nevertheless, with the rule
suggested, and the inquiry is, whether the case before us comes
within that rule.
The substance of the statement of the witness is, that the
horse did not appear to be frightened, but appeared to be
sulky; and we are inclined to think that, in respect to both,
in the case of the horse, persons of common observation may
and do form opinions that are reasonably reliable in courts of
justice, from marks and peculiarities that could not in words
be conveyed to the minds of jurors to enable them to make
the just inferences; and therefore that the testimony in ques-
tion, as in the case of the inquiry about hard-pan, was prop-
erly admitted.
It is, in truth, much like the testimony that the horse ap-
peared well and free from disease; that his feet were diseased,
or that a person appeared to be well or healthy; so of the tes-
timony as to a person's age, and whether intoxicated or not
In this case there is mingled with the testimony no conclu-
sion of law or matter of a technical nature, but it is matter of
common observation alone.
Jvme, 1865.] Lyons & Co. v. Hill ft Co. 189
The iiiBtnictions to the jury as to the proof of the habits of
the horse we think were correct. It was admissible to show
that the horse was vicious and unsuitable to use for such pur-
poses, and that might be done by proof of acts not brought to
the knowledge of the plaintiff, because it is not the knowledge
of tlie particular acts that was to be brought to his notice, but
of the character which those acts denote. It would therefore
be BuflScient, after showing his vicious character, to prove
notice by plaintiff's admissions and by similar acts in his
presence.
The mode of proving the character of the horse was right,
nor are we aware of any authority that would allow evidence
of general reputation. The case does not stand like the char-
acter of a person for truth, for then it may well be presumed
that it cannot be bad without being known to the public, but
it may be otherwise in respect to the vicious propensities of
the horse. We think also that the court, in its discretion,
might receive evidence of particular acts extending as isx
back as the spring before the accident: Chamberlain v. Enfield^
43 N. H. 360.
Upon these views, therefore, we think there should be judg«
ment on the verdict
OnHioir "ByiDESim, or Ixnu; Is not in goneral to be reoaivod: /ofM v.
Maine Ins. CkK, 71 Am. Deo. 63S, 638, note; DomM ▼. J<mu^ 48 Id. 60.
Opinioh or WiTNBBS AA TO VaIiITB or La9D^ when properly ezdndadi
FBid ▼. Flkd^ 83 Am. Deo. 615.
Qmaoir €f9 Wmraas aa to AMDiniT or Damioss not admunble: FUk ▼•
Dodge^ 47 Am. Deo. 254; ao of opinion «i to whether a eertain dog is a niii«
•anoe: ParherY. ifii^ 6BId. 776.
OmiKur or Wikbus is Svidihcb OHinBALLrz VmdbHft v. JKqmb 41
Am. Dea 738^ and note.
Lyons k Go. v. Hill ft Go.
148 Hlnr HAKPeHIBBp 41.1
OUMttuns n Xbtitlbd to RiisoiiiiBui OFTOBsnnnTr Ta Iiisnur Chion
forwarded bgr a eHrier» to be paid for on delhrery, before ha aooepti
them, and the oarrier may offer him aooh opportonily without beoondqg
charnabla for the prioeb
AsBUUPsrr against the defendants as
tiie opinion states the case.
190 Lyonb a Co. v. Hill & Ca [N. H.
IforrtfOfii Stanley f and Clarhf tot the plaintifb.
Parker and Johneon^ for the defeadantB.
By Coiirti Bxllowb, J. Upon the case agreed, including
what the defendants offered to prove, it appears that Leightoa
bargained with plaintiffs for a coat made from cloth selected
by him; that plaintiffs made a coat of other and different
cloth, and sent it to Leighton by the defendants, who were
carriers, with directions to receive payment on delivery; that
the coat was delivered in a package containing also a letter of
advice to Leighton, stating that the coat was of other cloth
than that which they sold him, for the reason that they had
not enough of that kind; but that the cloth of which the coat
was made was better than the other, and they indoeed a sam-
ple of the latter that he might compare them.
On the delivery of the package to Leighton, he paid to the
defendants the sum charged by the plaintiflb, twenty-four dol-
lars, upon condition that they were to hold the money until
he could ascertain whether or not the coat was what he bought
He then carried the package to his boarding-house, and re-
turned it to defendants' agent, and requested him to pay
back the money, which he did; and thereupon he carried back
the coat to the plaintiffs, and offered to return it to them, but
they declined to receive it, and demanded the twenty-four dol-
lars.
Upon this state of faciBj we think the action will not lie.
The package, it seems, was delivered to Leighton, that he
might examine it and determine whether to accept it or not,
and the money was put into the hands of the carriers' servant
only upon the condition that the consignee should find the
coat to be what he bought.
It was clearly not what he had bargained for, and he was
not bound to take it, even if the cloth was actually better than
the other, as asserted by the plaintiffs; and under these cir-
cumstances they cannot complain that the carriers received
back the package and returned the money.
There was in fact no acceptance of the coat by Leighton,
he having received it conditionally, to be returned in case it
was not what he bought.
To hold that taking it into his hands and openingthe pack-
age for the purpose of inspecting it to see what it was must
be regarded in law as a delivery and acceptance, would, we
Jme, 1866.] Ltonb & Ca «• Hnx A Oa 191
ttiink, be modi umeaaooable; nor do we find eny authority tn
such a deciaion.
On the oontraiyy the consignee ia entitled to a leaaonable
oiiportTimty to examine the packages broagfat to him; ascer-
tain the quality of the goods before he detennines whether to
accept them or not; and a reasonable detention of them for
that poipoae cannot be regarded as an acceptance: 2 Parsons
on Contracts, 825; Perdval v. Blake, 2 Car. & P. 614;
anst it be so when, as in this case, the package was
ezpreealy for the purpose of examining it.
If, then, the consignee has the right so to examine the goods
idthoQt being held to accept them, the carrier may surely give
him fSacilities for making such reasonable examination with-
out rendering himself chargeable for the goods; and the case
is not altered by his requiring the ccmsignee to pay the amount
eharged, for his own security while being so examined, for this
is in no sense a payment of the price.
Had the consignee kept the goods an unreasonable time, a
different question would have arisen, but nothing of that kind
is stated or suggested by counsel, and we are to take it that
the goods were in the consignee's possession no longer than
was required for a reasonable examination.
Upon the same general principles, it is held that a tender of
goods does not mean an oflTer of packages containing them, but
an offer of those packages under such circumstances that the
person who is to pay for the goods shall have an opportunity
afforded him, before he is called on to part with his money, of
seeing that the goods so presented for his acceptance are in
reality those for which he bargained: Isherwood v. Whitmore,
11 Mees. & W. 347; S. C, 10 Id. 767; 2 Greenl. Ev., sec. 611 a;
Avery y. SietpaHj 2 Conn. 74 [7 Am. Dec. 240].
With these views there must be judgment for the defendants
unless the plaintiffs desire a trial by jury.
DuTT €m Gabbxxb TOWABoe Goods WmcH Cioirgzoim Rgnmn to Bb-
SBTB: Steanboai Ke^Ume t. Moie$, 75 Am. D«o. 123.
Gabbub'b Lubxutt Ends only when the oanirign<w hu a reMooable oppor-
liimty to tak6 the goods: Mom$r. Baitmetc i?. i?. Co., 64 Am. D«o. 381, and
soie 302; and lee MkhigcM etc B. B. Ckk t. Da^, 71 Id. 278^ and note.
DuTT or CaBBIXR BaBPSOroio Dkuyxbt ovQoods! B&meUy. Bifrom^ 1%
Am. Dee. tW^ and note.
192 Ray «. Citt of Mahchbstbb. [N. H.
Ray v. City op Manohestbb.
\4a Nbw Hampshibs, 60. 1
liKBa MoooHiyuoT ov Indiyiditals upon Highway, itadf in a rnnfniiWy
Ml e and fit ccmdition, or their rightful use of it, does not amoont to
an ''obstraction ** for which a city is liable nndsr the New Hampehire
•tatate, and the lialnlify of the city is not enlazged by the fact thai IM
had notioe of each use or miacondnct.
Cask. The plaintiff offered to prove that he was driTing
in one of the Btreets of the city of Manchester, and that be
was thrown from his sleigh, and had his leg broken, in conse-
quence of boys with hand-sleds sliding in said street for sport;
that said obstruction had continued for a long time in said
street, and was so great as to be a public nuisance; and that
the city well knew, or ought to have known, this condition of
the street, and ought to have prevented the sliding. The evi-
dence was rejected, and a nonsuit ordered, and the plaintiff
excepted.
EastTMLn and Crosa^ for the plaintiff.
Parker and Johnson^ and E. S. Cutter^ for the defendant.
By Court, Babtlett, J. The c<Hi6truction of the terms '^ob-
frtructirfl«, insufiBciency, or want of repairs of any highway,*''
useJ In jox statute (R. 8., c. 6701), is for the court, while the
qu ^'jrju of the existence of an obstruction within the mean*
ing A the term as construed by the court is one of fiftct for the
jury, if there be competent evidence tending to show such an
obstruction: J6hn%on v. HaverhiUy 85 N. H. 74.
In the present case, the plaintiff's evidence did not tend to
show any insufficiency or want of repair in the highway itself^
and there must be judgment on the nonsuit unless the use of
the highway by boys in the manner stated in the case is evi-
dence of an '' obstruction " within the meaning of the term as
used in our statute. If this use of the highway was rightful,
it constituted no obstruction within the statute: Chamberlain
V. Enjiddj 43 N. H. 856; Wimhip v. EnfiM, 42 Id. 216; and
if the sliding of the boys was a misuse of the highway, still
we d , not think it was eyidence of such an obstruction. The
ob«;iniction contemplated by the statute is, in general, one
from ^r by reason of mere matter: Davis v. Bangcrj 42 Me.
627, Keith v. Eastanj 2 Allen, 653; and the encumbranoei
w'iiich surveyors of highways are empowered to remove by the
69th chapter of the Revised Statutes are those by inert mat-
ter; while in the present case the obstacle to the plaintiff's
Jane, 1865.] Bat v. Cmr or Mahchbstkb. 19t
passage consisted entirely in the acts which the boys were
tiien doing. " Nothing is an obstmction which the town were
not bound to have removed at the time of the injury, under
the circumstances of the particular case": Bubbard v. Co»»
rwd, 35 N. H. 68 [69 Am. Dec. 520]; Palmer v. Portsnumth^
43 Id. 265; and we are aware of no provision of our law
which makes it the duty of towns or highway surveyors to re-
move persons from the highway because of their misconduct
there: Davis v. Bangor^ 42 Me. 530; and therefore the town
eannot be held liable in the present action for such miscon-
duct: DavU V. BangoTy supra; Young v. YarmcAUh^ 9 Gray,
386. Nor is the case altered by the fact that this sliding was
A public nuisance; for nuisances may be committed by indi-
viduals upon a highway by its unlawful use, for which they
may be liable civilly or criminally, and yet these nuisances
may not amount to a defect or obstruction of the highway
itself; and although such acts may interfere with the right of
passage, yet the town is not liable for them in an action like
ihe present, if the highway as such is reasonably safe and
•convenient, needing neither repair nor amendment: Davis v.
Bangor^ supra; Vinal v. Dorchester, 7 Gray, 423; Hixon v.
LoweUj 13 Id. 63; Kidder v. Dunstable^ 7 Id. 104; CJiamberlain
V. Enfiddj 43 N. H. 863. In the present case, it is not easy
to see why the city of Manchester should be held liable because
Ihe plaintiff *s passage over Laurel Street was obstructed by the
improper sliding of the bojrs any more than in case his travels
bad been 8toiq)ed by an assault and battery committed upon
Idm in the highway.
As the mere misconduct cf individuals upon a highway
which itself is in reasonably safe and fit conditioD, or their
rightful use of it, does not anoount to an obstruction for which
the city is Kable under the statute, the fact that such miscon-
^hict or rightful use had been known to the city will not en-
large its liability: Davis v. Bangor, 42 Me. 636.
Tliere must be judgment on the nonsuit.
cm Twatrnm Ibtuxid wr OBnauomi nr HraBWArs Am Wood
74 Am. D«o. S22» and aoto 228; Bromm v. Waisan, 74 Id. 482;
Olmrkr. Frf, 72 Id. MO, and note 609.
What OBsntnonov ur Huhwat CoHsnnms Kuibahci: Peopler. Oun-
flfp^iton, 43 Am. Beo. 709, andnote; Chama t. Shattuek 09 Id. 637; obctroo-
tian in jnrioits to pabfio it indiotablo: People t. Jadteon, 74 Id. 720l
H^BCBBAXT OjuMawnoNs Bff Htohwat must mnr ■■ UimoMBasiLy
FmaajoMQMin ArfcT.^^7SAB.DwL 69Q^andnote69a
Daa Vol. LXXXVUI— IS
194 Hbath v. P0BT8ICOUTH Savivob Bahk. [N. H.
Hbath V. Portsmouth Savings Bans.
[46 Nsw HAXPSBna, 78.]
Cumm Cff DnoBDVBOOK ab Followb: '^Depodton are alone reipoBiibk
for tlie saf d-keeping of the book, and the ptoper witfadmwal of ihmr
money. No withdrawal will be allowed witfaoat the book, and the book
ia the order for the withdrawal, " — must be taken to haye made part of
the contract between the depositor and the bank, entitling the latter to
the prodaetion and offer of the book upon a demand for the depoatk
Absuhpbit to recover a deposit made with the defendant.
Ab evidence of the deposit, a book stating the deposit, and
containing the clause set oat in the gyUabuSj was given to
the plaintiff. On the next day he applied to the defendanti
and claimed payment of his deposit, exhibiting evidence that
his deposit-book had been lost or stolen. The bank declined
to pay without indemnity for so doing, which condition the
plaintiff was unable to comply with, and he brought this suit.
By agreement, a copy of the deposit-book was referred to at
part of the case.
S. H. ChodaUj for the plaintifll
W. H. Y. Haekett^ for the defendant
By Court, Babtlbtt, J. Upon the case stated, we must take
the clause in the deposit-book to have made part of the con-
tract between the plaintiff and defendant: White v. Bankj 22
Pick. 183; Eaves v. Peoples 8av. Bank, 27 Conn. 284 [71 Am.
Dec. 69]; WaUace v. Lowell Institution for Satfings^ 7 Oray,
187. Under that contract, the bank would be as much en-
titled to the production and offer of the book upon a demand
for the deposit as the maker of a note, payable to bearer, to
an offer of the note upon payment when payment is demanded,
and therefore we think the case fetlls within the principles laid
down in Stone v. Clough, 41 N. H. 296, 297; and see Freeman v.
Boynton, 7 Mass. 486. As no indemnity was offered the bank,
it was in no default when this action was commenced; and the
case therefore differs from that of the loss of the note declared on
after the commencement of the suit, suggested in HUl v. Barney^
18 N. H. 610. The question raised here did not arise and was
not decided inWarhue v. Bowery Sav, Bank^ 21 N. Y. 543; S. C,
6 Duer, 67. Whether under the law of this state the plain-
tiff's remedy, in case of the loss of such an instrument, should
be sought or could more conveniently be had in equity is a
question not now before us: See Hill v. Barney, 18 N. H. 610;
July, 1865.] Geobgs v. Cuttino. 195
Fide$ r. RuueU, 16 Pick. 815; 1 Story's Eq. Jur., sec. 85; Story
on Notes, secB. 446, 450; Chitty cm Cootracts, 850; Chitty oq
Bilb, 265, and note.
There most be a nonsuit.
UmBM FUBBBTAXimi OV PlflB-BOOK OV fliAVDW BaJHL » SOT
for tiie paynMat of monqr, in tba abMoea of i^y tfraemflat to ihaM
Jbm T. PwsiU% Bm, BmJt, 71 Am. D«o. M.
Satdtos Bahx that Uhdibtakb to Ihtmt All Mootbts Dmowtb^
WRH It, and repay tlMm i^on \&aita»i\ mado in oontendly with iti l^^law^
ii liable to on octkaol nwwiijMf f lyon fiylnio oo to dot JTelia ▼, iftwi /nifc^
74(0L
Gbobgb t;. Cutting.
l« Hsw HAXPBBnn, im]
or HmBAKD TO Dnnr Wms's Autuuuti to Sill mtm Vwof*
; — B|7 Uw of Now Hampshire, if tba wile npon marriage remaina
in puaeeeeinn and oontrol of her pereonal property, withoat anything
dona by tiia hnaband to rednoe it to hie poaeeerion, eha may aeQ it^ tak-
ing a note therefor payable to hereetf or order, and in an aetion on tba
note by tba hnaband, ha is estopped to deny that the wife had an-
tliority to aeQ the property and take the note. In snob ease, the wifa
baa also impliad antbority to indorae the note^ and the indoraement will
be good until the antbority impliad in the tranaaetian is reroked.
AflsUMPSiT on a promiBSory note, exeoated by the defendant
in 1859, payable to Anna George, then the plaintiff's wife, or
order, on demand. The action was brought in 1863. In
1860 the defendant was sued on the same note in the name
of one Noyes, as indorsee, the name of the wife alone appear-
ing as indorser. The defendant notified the plaintiff of the
suit, and offered to pay him upon indemnity, but not having
received any indemnity, he paid the note to the attorney of
Noyes, and produced it on the trial of this action. The ver-
diet was for the defendant, which the plaintiff moved to set
aside. Other fi&ots appear in the opinion.
Burh$ and TTatt, for the plaintiff.
A. and 8. H. Edes^ for the defendant.
r>y Court, Perlet, C. J. At the time of the plaintiff's
marriage, his wife owned a farm in her own right, and the
6t<»c'k and personal property on it. She retained possession
and control of the personal property with his consent. As the
law is held in this state, such personal property must be re-
196 Gboboe V, Cutting. [N. H*
duced by the husband to his possession before it becomes his.
While this personal property remained in the wife's posses-^
fiion, she sold a part of it, and took this note for it, payable to
herself or order. The plaintiff's «iit ifr- on this note. By
claiming on the note, he ratifies and confirms the action
of'his wif6 in selling' the property and taking this note for- it;
and is estopped' to difeny that she sold the property and took-
theinote in this form with his consent and by his authority.
At the commonJaw, .the money and the personal chattels of
the wife vested! in I the husband, on the marriage, without. any,
act asserting. his marital right; but in this state the personals
chattels of the wife remain hers until the husband reduces
them into his possession with the intention of making them
his own; and in this respect there is with us no distinction
between the personal' chattels of the wife and her choses in
action: 3far«(on v. Carf«r, 12 N. H; 159* Coffin y. Morrill^ 22 Id,
Z57] Chiter v. Butler, 25 Id. 343, 355 [57 Am. Dee. 330]; HaW
y«.lMO.un^, 37. Id.. 134; Jordan v. Cummings^ 43 Id. 137. And
ifcthec personal ohattels-ofithe wife left. by the husband in her
possession' and- oontrDl are withi his- consent] changed into
others, or- into securities for- money; without any intention to
aifiert his maritalr right of making the. property his own, the
flubstitutedi prepay* wilL eytillj belong, to tha wife: Coffin v.
Morrilly supra.
Ifa this case, the note having- been taken i by the wife, with
the Husband's consent, for- her property left by him in her
possession and control, the note belonged to her, as the prop^
erty did'f6r which it'was taken. There is nothing here tend-
ing to show an intention on the part of the husband to claim*
the note until he forbade payment* to the wife; and till he in*-
tferfered to reduce it' to his possession it would^ belong to the
wife. The wife did not act,* in selling the property and taking
the note, as agent of the husband, but in her own. behalf, and
in the management* of her owir property^ left by his consent'
in her control.
At the common law, a not6 giyen- to ithewifte after marriage,
and made payable to her, .may be treated by the husband as
a note payable to himself, because, inasmuch as the money
and' goodJB of' the wife vested immediately ih« the* husband,
payment* of^ the note, whether* made directly to the husband
or intb' tUe* Hands of the wif6, vested' the- mcm^in' the -bus"
Band; and' was* in legal 'effect' a .pay menVt&^himr, fbrtiie^money
paid* war his. Ih taking tHe> note and in^ reeoiWng* paymenti
July, 1865. ] Geobos * v. Ctmnie. 197
Ae wife acted as the meie agent of the hcMbeEDd. If ithe wife
smriTed him, and the note remained unpaid, -the 'might then,
being aut jurisj reeeive the money on it to her own use; and eo
the husband might join her with liimBelf in a -suit en tfae'ne^
and the judgment, if she survived, wo\ild belong to her. Bui
by the law as held in this State, when the wife takes a irote,
with the assent of the husband, for her property left by him
in her hands, she does not aet as his mere agent in the trans-
action; the note belongs to' her, and if she receive the money
on it according to its tenor, the mmiey is hers, and net 'the
husband's, unless the husband has in some way revoked the
authority of the wife to treat the note as her own. ^In this
respect, the law in this state has departed from the nileof the
common law, which inclined to construe' all acts of the-wlfe as
done in behalf of the husband and as his agedt.
When the husband allows the wife to retain possession 4t
her j^rsonal property, and has given her authority to sell 'It
and take a promissory note payable ^ to herself or xsrder,' we
think, in this state, an authority is implied for the* wife to 're-
ceive the money and hold it, as she held the 'property 'for
which it was given, to her own use, and also to indorse the
note according to its tenor; and payment to the wife or in-
dorsement by the wife will be good until the authority implied
in the transaction is revoked. No such authority would be
implied at common law, because payment of the note, under
the rule of the common law, 'immediately and necessarily
▼eeted the money paid in the husband, and payment to the
wife was, in legal effect, payment to the husband. But in
this state the law is different; payment to the wife of money
due on a security belonging to her, and left in her control,
is a payment to her; and the money paid belongs to her, as
the security did on which it was received. In this state, there
is no difficulty in giving effect to a promissory note made
payable to the wife or order, according to the terms and tenor
of the note.
It would seem to follow that, in this state, if the husband'
gives his wife authority to sell her personal property and take
for it a promissory note payable to herself or order, he gives
her authority to indorse the note according to its tenor, and
to hold the proceeds to her own use; and until this authority
is revoked, her indorsement of the note will be good to pasa
the title in it, though not to bind either her or the husband aa
indorser. For it is well settled that if the husband give the
198 OsoROB V. CumNG. [N. H.
wife express authority to indorse a note payable to her or
order, her indorsement is good to transfer the note, and may
be made in her own name, though she acts by authority of
the husband and as his agent: Stevens y. Bedkj 10 Gush. 291
[57 Am. Dec. 108]; LeieesUr ▼. Biggs, 1 Taunt. 367; Prestmch
V. MarshaU, 4 Car. & P. 594; Brown Y.DonneU, 49 Me. 425 [77
Am. Dec. 266].
We are therefore of opinion that, under the law of this state,
the wife was the legal payee of the note, entitled to receive
payment on her own account, and not as agent of the husband;
and also authorized to indorse the note in her own name until
the authority implied in the transaction was revoked by the
husband.
This brings us to the question whether there is anything in
the case which tends to show that the authority to indorse, once
given, was revoked before the indorsement. There is nothing
that can be supposed to have been intended as a revocation of
the authority to indorse, except that, in November, 1859, ten
months after the note was given, "the plaintiff went to the de-
fendant and gave him notice not to pay the note in question
to his wife."
In the first place, the legal presumption is, in the absence
of proof to the contrary, that the note was indorsed within a
reasonable time after it was made and before it was discred-
ited; and there is nothing here to control that presumption;
but the note, being payable on demand, was discredited long
before this notice, which was not given until ten months after
the note was due.
Then, again, a mere notice to the maker not to pay the note
to the wife cannot be regarded as a revocation of the wife's
authority to indorse. It is not in the form of a revocation;
nor is it a revocation in substance. How can this notice to
the maker not to pay to the wife, neither addressed to the wife
nor communicated to her, and unknown to the indorsee at the
time of the indorsement, be treated as a revocation of the au-
thority to indorse? And it is to be observed that the case
does not show any objection on the part of the plaintiff to an
indorsee's right under the indorsement of the wife, nor to pay-
ment by the defendant to an indorsee, till this suit was brought.
He gave the defendant notice that he should not pay to the
wife, but said nothing against his paying to an indorsee, and did
not then ask for payment to himself. And wlion the defendant,
o.) the 13th of August, 1860, gave him notice that he was sued
l)ej. 1865.] Johnson v. Concobd R. R, Corp. 199
on the note by an indorsee, and should pay to him unless he
had an indemnity, the plaintiff gave no indenmity, did not
come up to defend, and does not appear to have made any ob-
jection that payment should be made to the indorsee.
Wp think that the wife had authority to indorse the note;
that there is nothing in the case tending to show that the au-
thority was revoked before the indorsement; that the wife's
indorsement transferred the note to the indorsee; and that
coneequently payment to him was pajrment of the note; and
the conclusion is, that the plaintiff had no case on which he
oould ask for a verdict, and of course the verdict for the de-
fendant was right.
This makes it unnecessary to consider the other questions
raised on the case.
Judgment on the verdict.
Hitbbakd's Rights is and Contbol ovib Wine's PsoraBrr: BuMgh r.
Cqfin, 53 Am. Dec. 236^ aad note 241; Ware v. iUcAaniKm, 66 Id. 702; War-
rem t. Brawn, 57 Id. 191, and note 194; Bell r. Belt, 79 Id. 73» and note 75.
Hdsbaitd 13 Entitued to Labob ahd EARNnras of Wm: Norcrom y.
Bodgern, 73 Am. Dec 323; Skiaman v. ShUman, 82 Id. 279.
What Acts of Husband Aitoniirr to Affbopbiation of the wife's choeei
in action: Barber v. SJade, 73 Am. Dec 299, and note 302; 8aBee v. Arnold^
82 Id. 144.
HusBAin) OAKNOT Skll Wifx'b Ibtxbbst ni Pbbsonaltt not redaced to
poaaeflnaa: SeoU r. Six, 62 Am. Dec 458; 8tamdtfcrd t. Dent, 88 Id. 351.
Johnson u Concord Railroad Corporation.
\4A Nbw Hampshxbb, 218.]
Pubgbaskb of Tickst to Station on Linb of Railboad is entitled, in the
abeence of express stipulations, to be earned to that station in a reason-
aUe time aad manner, agreeably to the reasonable roles and regolations
of the company.
RanaoAD Companies mat Maks Rbasonabui Rxoulationb as to the mods
of performance of their duties as passenger earners.
Rvui EaTABuaHBD BT Railboad Coxpant Ldcitino Tdcx within which
tickets over its road shonld be need, provided that joint tickets should
be good for snch farther time as might be necysary to enable the holders,
by the regular trains of the road, to reach the station to which saoh
tickets were sold, is not unreasonable.
BVIDXNCE that in VARIOUS InsTANCXS CONDUCTORS ALLOWED TlOKETS TO
BE Used contrary to the provisions of a reasonable rale established by a
railroad company, and in violation of instructions, is not competent to
show a usage on the part of the company in conflict with the rule, if such
200 Johnson v. Concord R. B. Corp. [N. H«
lostenoes JLxe not diown to bftve come to the knowledge of the goTemin^
offioen of the oorporation.
UlAOS IS 009SIDXBED IN CON8TBUCTION OT CONntACIS, upon tDO gTOUnd
that in the absence of express stipulations parties are deemed to oantract>
with reference to known ez&Bting usage.
Li Aotiom AflkiXNsr Bahsoad Coxpijrr, wkkrb PLAnniFF Claims to Rx-
cx>TSB SoLBLT lOB BjBonoN iBOx Gab, and not on aocoont of the maa-
ner of it, and a l^gal justification for the ejection is shown, it i»
immaterial whether unnecessary force was used by the conductor.
Case for ejecting plaintiff from defendants' car. The plain-
tiff bought a ticket at Chicago from that place to Boston, over
the defendants' road, among others. The ticket was silent a»
to the time, mode, and manner of transporting the plaintiff^
and after having made part of the journey, he voluntarily
stopped for nearly four months at Manchester, an intermedin
ate station on the defendants' road. On attempting to use
the ticket from Manchester to Boston, the conductor said it
was not good for anything; and upon the plaintiff's refusal ta
pay fare, removed him from the car. It appeared in evidence
that nearly a year previously the defendants had established a
rule that tickets over their road should be dated on the day of
their sale, and should only entitle each holder to a passage on
that day, provided that joint tickets should be good for such
further time as might be necessary to enable the holder, by
the regular trains of the road, to reach the stations to which
such tickets were sold. Other facts appear in the opinion.
The court ordered a verdict for the defendants, and the plain*
tiff excepted.
Morrison^ StanUyy and Clarky for the plaintiff.
Oeorgtj Foster^ and Sanbarriy and Easttnan and Croes^ for the
defendants.
By Court, Babtlett, J. Whether or not, in the absence of
evidence as to any regulations or usage of the defendants,
the plaintiff, upon the purchase of a ticket from Concord to
Nashua, would be held entitled merely to a continuous pas-
sage, and by the next train, and whether he would have had
legal ground of complaint if the cars had not stopped at Man*
Chester, are questions that need not be considered in this case*
By the purchase of such a ticket from the defendants, and pay*
ment for it, the plaintiff would become entitled to be carried
by the defendants over their railroad from Concord to Nashua;
and if, in the absence of express stipulations, the contract on
the part of the defendants should be held an agreement so to
Ste. 1865.] Johnson v. Concord B. R. Cobp. 201
CBTry ihe plaintiff in a reasonable time and manner, the rea-
sonablenesB must in general be determined with reference to
other jnatters than the plaintiff's x)ecaliar sitoation merely,
for he oould not properly claim to be thus carried except at
Bach reaeonable times as might be fixed by the corporation for
die nmning of their trains between those jdaoes; and so the
ccmtract, which the ticket does not attempt to set (ofr&i in full,
viil be found in varioos other respects.
Ordinsrily, the ticket is net and does not contain the con-
tract: Quimby t. VanderbUt, 17 N. Y. 318 [72 Am. Dec. 469] ;
Memns ^. Bay State Co., 4 Bobw. 225; N&Hhem R. R. Co. ▼.
Age^ 22 Barb. 132; Clevdandy C, A C Railroad y. Bertram, 11
Oiuo St. 462; although it may famish evidence of the contracft:
Bmrker t. Cafiin, 31 Barb. 656; Brwon ▼. Emttem R. R. Co., 11
Coflh. 101; Boskm and Lowell R. R. Co. ▼. Proctor, 1 Allen,
£68. Practically, the only conelraetion that can well be given
lo the contract in vuch « case is, that it is an agreement bf
the defendants to carry Hie plaratiff frsDi Ocmcord to Nashna
ixL a reasonable time and manner, ^i^eeably to their reason-
able rules and regulations, if they have such, whether the -same
axe established by formal regnlation «r by settled usage; and
this is the reasonable manner in which the contract is to be
performed; otherwise it might be a question for a jury in
each case whether the passage was claimed or furnished in a
leasonaUe time <or manner: Tyler v. Wehster, 43 N. H. 151;
and if each case, instead of being settled by some general rule,
were left to be determined upon its x>eculiar circumstances, the
result would not only be found extremely inconvenient to the
public, but public carriers, like our railroads, would be practi-
cally disabled to perform their duties in the transportation of
passengers. Public convenience, as well as the nature and
necessity of the case, requires that such carriers should have
tiie power to make reasonable regulations as to the mode of
their performance of their duty as carriers, and where such
OBgolations are made, they so far establish definite rules of
general application, which may obviate the necessity of sub-
mitting the question of reasonable time and manner to the
jury in every individual case: Tyler v. Webster, 43 N. H. 151»
We find that similar views of the law have been taken else-
where: State V. Overtor^, 24 N. J. L. 435 [61 Am. Dec. 671];
Cheney v. Boelm & M. R. R., 11 Met. 121 [45 Am. Dec. 190];
Bedfield on Railways, 32; 1 Am. Law Reg., N. S., 7; and see
State V. CJiovin, 7 Iowa, 204; Railroad v. Vanatta, 21 111. 189;
202 Johnson i;. Concobd R. R. Corp. [N .
Day V. (hoen, 5 Mich. 520 [72 Am. Dec. 62]; Terre Haiule^ A.,
& St, L, Railroad Co. v. Dolby, 19 lU. 353.
Nearly a year before the plaintiff purchased his ticket, the
defendants had established a rule that tickets over their road
should be dated on the day of their sale, and sliould only
entitle each holder to a passage on that day, provided that
joint tickets should be good for such further time as might be
necessary to enable the holders by the regular trains of the
road to reach the stations to which the tickets were sold. This
regulation seems designed to protect the corporation against
fraud, to enable them to perform their duties as passenger car-
riers easily and properly, to facilitate their settlements with
connecting roads, and to secure prompt and convenient trans-
portation for the public; and it throws no real hardship upon
the traveler, for if he desires to make two different journeys, he
may purchase a ticket for each. Therefore, considering these
circumstances, and the length and situation of the Concord
Railroad, we are of opinion that this regulation was not un-
reasonable. In the present case, we have had no occasion to
inquire how far such a regulation would be legally applicable
to the case of a purchaser of a ticket detained by inevitable
accident or pure misfortune, and we have not examined that
question.
This is not a case where the corporation seek to enforce a
penalty or recover damages by virtue of a rule or by-law, and
if the plaintiff had desired to know the regulation of the de-
fendants in this respect, he should have inquired: Stait v.
Overtoriy supra; Cheney v. Boston AM, R, /J., supra; Redfield
on Railways, 295, 296, and note; Van Santvoord v. St, John, 6
Hill, 157; see Farmers' & M, Bank v. Champlain T, Co., 23 Vt.
211, 212 [56 Am. Dec. 68]; and this could have been no greater
hardship than the inquiries that passengers are daily obliged
to make to learn the hours at which trains start, and the like.
Had the plaintiff shown that he was without information upon
this subject, and that upon proper inquiries he obtained only
a false answer, or could get no information, a case would have
been presented that we have not here been called on to con-
sider. The fact that in the present case the ticket was sold to
the plaintiff by Wentworth at a distance can make no differ-
ence, for the receipt of their proportion of the passage money
l)y the defendants can bind them no further than a sale of tho
(.(•ket by themselves would have done: Schopman v. Boston
!♦'. R. R, 9 Cush. 29 [55 Am. Dec. 41].
Dec 1865.] Johnson v. (3oncobd R. R. Cobp. 203
If a rq^olation of the railroad can be shown by usage (see
SmM v. Raaroadj 44 N. H. 832; Vedder v. FellowB, 20 N. Y.
126), and if it was competent for the plaintiff to show a usage
oS the road existing at the time he bought his ticket such as
wooia have governed the defendants in the future so fiEtr as
their contract with him was concerned, yet we think he has
oiSeTed no competent evidence of any usage existing at the
Hxne he purchased his ticket, or while he held it, which would
entitle him to ride in the defendants' cars by virtue of a ticket
nearly four months old. If any such usage existed prior to
the establishment of the regulation stated in the case, it then
ceased to have effect as to future contracts, and there is no
competent evidence of the existence of such a usage after the
adoption of this regulation. The evidence of the plaintiff as
well as of the defendants goes to show that the defendants'
conductors were instructed to enforce this regulation, and no
question is made that such was the fact; and the instances
testified to by the plaintiff and his witnesses where tickets had
been used contrary to this regulation merely show that the
conductors failed to do their duty, and have no tendency to
prove a usage on the part of the defendants in conflict with this
regulation, for the conductors had no power to repeal or alter
it, and no right to violate it, and these instances are not shown
to have come to the knowledge of the goveniing officers of the
corporation; and the tickets thus misused cannot be presumed
to have been received as valid bv the conductors with the
assent of the corporation, for such a reception of them was
not within the scope of the authority of the conductors, and
was in disobedience to their positive instructions: Martin v.
Great Falis Co., 9 N. H. 51; TebbetU v. Moore, 19 Id. 371;
Beebe v. Ayres, 28 Barb. 283; and see Smith v. Railroad, 44
N. H. 332; Elkim v. Bostm & M. R. £., 23 Id. 287; Murch v.
Concord R. R., 29 Id. 9 [61 Am. Dec. 631].
But it has been urged that the evidence tended to show a
usage by the defendants to allow passengers '*to stop over,"
existing for some time immediately prior to the adoption of
the new regulation; and that the plaintiff, knowing that usage,
but having no information of any change, could not be affected
by the new regulation; but we think this latter position is
founded upon a mistake.
If the contract is to be deemed an agreement by the defend-
ants to carry in the usual manner, to the usual terminus, and
with the customary stops {Cfieney v. Boston & M, R, R,^ mpra;
204 Johnson v. Concord R. R. Cobp [N. H.
Story on Bailments, sees. 597, 600; Angell on Carriers, sees.
631, 533; 5 Potersdorflf's Abr. •48, note), we need not inquire
whether this is anything more than an agreement to carry
according to their reasonable regulations, for at most it is in
each of these cases but a contract to carry according to the
Teasonable usage, ui)on the ground that in the absence of
any special agreement the parties are deemed to have cox^
tracted with refevence to the established existing usage: Foye
T. Leighton, 22 N. H. 76 [53 Am. Dec. 231]; FamswoHh v.
Chaw, 19 Id. 534 [51 Am. Dec. 206]. It would introduce a
most unnecessary and unprofitable embarrassment into the
•conduct of the business of such public carriers if they were
always to be bound by a usage, because it had at some former
time existed, as to every person who had ever known the
usage, unless notice of a change is brought home to him; and
it would create such practical difficulties in the performance
'vt their duties by railroads as would in effect render them
(profitless to their owners and useless to the public. The re-
curring changes of travel, and the frequent exigencies of busi-
ness, for which provision must be made, are such that the
changes essential to the public accommodation could hardly
be made if railroads were thus hampered; and it would seem
that our legislature deemed it necessary by statute to forbid
the increase by railroads of :their rates x>f fare without notice:
'Laws of 1852, c. 1277, sec. 1.
Notice, unless brought home to the passenger, can be of no
Teal consequence in such a case. It might be suggested that,
in a case like the present, it would :be quite practicable to in-
dorse some notice of the change of rule upon the ticket; but
when we take into account the number of the changes of
difierent regulations important to travelers that may become
essential to convenient and safe transportation, and the fre-
quency of their necessity, we think it can hardly be practi-
cable to place notices of all such changes upon the ticket, and
if it were, it would be far from insuring actual notice to all
passengers. It seems to us that such a requirement would
not prove of sufiicient practical value to counterbalance its
inconveniences. If it is understood by the public that the
duty is on the traveler to inquire as to all such reasonable
regulations as it may be important for him to know, we think
there will result less inconvenience than from any holding of
the law that tends to relieve the traveler from the duty of in-
quiry as to a part of such matters of regulation. The public
Dee. 1865.] Johnson v. Concord R. R. Cobp. 205
would be quite as likely to be misled if tfaej were induced to
rely upon tbe probability of seeing notices, not necessary to
be brougbt borne to the knowledge of individuals) as if they
understood that the duty of inquiry rested upon the person
desiring to know. Besides, if knowledge of the notice is not
necessary to be brought home tx> the individual, bttt only a
reasonable publication of it is required, then a party is held
charged with notice in effect, upon the ground that he might
have ascertained the change by reasonable inquiry, and we
see no good reason why he may not as properly be held to
make such inquiry of the proper officers or servants of the
carrier corporation as among notices reasonably published in
newspapers and hand-bills.
Usage is considered in the construction of such a contract,
solely because, in the absence of express stipulations, parties
are deemed to contract with reference to the known existing
usage; and if the usage has ceased at the time of the con*
tract, the reason of the rule fails, and the contract is not
ordinarily deemed to have been made with reference to the
abolished usage: Coohendorfer v« Prestimy 4 How. 317. And
so in Walker v. Jackson^ 10 Mees. & W. 161, the jury found
the existence of an invariable usage and custom"; but the
real question in that case waS) how &r the defendants were
carriers; and it was decided that If they habitually held
themselves out as carrier to a certain extent (which was
shown* by their usage), they could not divest themselves
of the ordinary common-law liabilities of such carriers by a
notice like that shown in the case; so that the question was.
not as to the necessity of notice* of reasonable regulations
established by them for the p^ormance of their carrier du*--
ties, but of tiieir power td relieve- themselves of part of theip
common-law liability and> duty as carriers by such* a notice.
If, then, the former usage made no' part of the contract, it
could not be operative in* the present case unless by way of
estoppel. But Heretbedefbndants, by i^eperformance of their
daily duty; cannot be taken toha^e'so conducted' as to induce*
ar reasonable man tb believe that tiley would'at any future time,
maintain the same* regulation: Drtw v. ^mbaJly 43 N. H. 285>
[80 Am. D^. 168]V and the plhihttff's condbct cannot prop*
erljjrbe^said' to'have been infltienoed by any intuitional act ov
n^^etfon tbeir* part. Aiswe^have' aeen^ the plaintiff is^ pre*,
sumed to ha^e contracted with' le&rance t(r the> iteaeonabl^i
regulations of the rai&iead\ BMk^ vi Aym\ 28' Baisbi. 280; and
206 Johnson v. Concord R. R. Cobp. [N. H.
of these no notice was necessary in a case like this: Cheney
y. Boston & M. R. R., 11 Met 121 [45 Am. Dec. 190]; and the
same reasons would seem to exist for holding that no prior
notice of a change of regulation was essentiali because the duty
of inquiry was on the plaintiff. Indeed, where the necessity
for change of such regulations is so obvious, and their frequency
so notorious, a passenger who neglects to make any inquiry can
hardly have good ground for complaint because of his ignorance
of the new regulation: Odli/n v. Oove^ 41 N. H. 465 [77 Am.
Dec. 773].
The numerous cases as to the power of common carriers to
limit their common-law liability are distinguished from the
present; for, as the carrier cannot divest himself of his com-
mon-law responsibilities unless by a special contract, his own
act alone must be insufficient to relieve him from such duties
while he remains a common carrier: Moses v. Boston & M.
R. R.y 24 N. H. 71 [55 Am. Dec. 222]; but he may and must
in many respects regulate the mode in which he is to perform
those duties: -Moses v. Boston & M. R. JR., 24 Id. 90; Day v.
Owen^ 5 Mich. 525 [72 Am. Dec. 62]; and so of innkeepers.
Nor are the cases where a known partner has been held liable
for the debts of the firm contracted after his retirement in point
here, for they can be explained upon the ordinary ground of
estoppels in pais: Story on Partnership, sec. 160.
In the present action on the case, the plaintiff claims to re-
cover simply for his removal from the cars, and not on ac-
count of the manner of his removal, and as he refused to pay
his fare, his removal was perfectly justifiable: Laws 1852,
c. 1227, sec. 3; HiUiard v. GottW, 34 N. H. 240 [66 Am. Dec.
765]. As a complete answer in law to the cause of action set
forth in the declaration appears, the plaintiff cannot recover
in this action, and therefore we need not examine the ques-
tions whether, if more force was used in the removal of the
plaintiff by the conductor, not through mere carelessness or
negligence, but willfully and intentionally, the defendants
would be liable for such excess in any action: See Story's
Agency, sees. 452-456, and note; Hibbard v. New York & E.
R. fi., 15 N. Y. 456; Sanford v. EigMh Ave. R. R. Co., 23
Id. 343 [80 Am. Dec. 286]; Hewitt v. Swift, 3 Allen, 420; or
whether, if liable at all in such case, they would be so in this
form of action: See Savignac v. Roome, 6 Term Rep. 125; Mc
Manus v. Cnekett, 1 East, 106.
There must be judgment on the verdict
Dec 1865.] Johxsqn v. Concord R. R. Gobf. 207
BsLLOWBy J., filed a dissenting opinion.
PKBUETy C. J., having been of ooonsel, did not sit
Bnxowfl^ J., liiMmitad from the opinioa of the majosity of tiia ooorfe^ for
rmaaam Miigiiiwl at longtlL Briefly stated, ho muntaiiiodtha* the deteiduiti
mast be deemed to have oontraoted to tmuport the plaintiff in enoh tiine,
mode^ and manner as aeoorded with the nsage upon that itmte^ as mneh as if
it had been so expressed in the tioket; that in this ease the jniy might hare
fbond a neaga to allow the passenger to stop on the way, orer one or more
tcains. or even for weeks or months, and if so^ that the oontraot was in refer-
ence to it^ and in fact incorporated that privilege into it; and that, indepen*
dent of the role or by-law established by the company limiting the time
witliin whidi tickete should be need, the jnry might clearly have foond each
usage to eodst^ and down to the time of the sale of the tioket in question.
This, he claims, ''raises the naked question whether a party contracting with
a railroad for a passenger ticket is bound by a change in a nsage before estab-
Hdied, made by a by-law not communicated to him, not notified at the office
aathoriaed to sell tickets, and where plaintiff bought it, or notified on the
ticket itself; or in other words, whether the railroad is bound to give no-
tice of snoh change in some way, at whether the passenger must take notice
of it at his peril, or is af least bound to inquire. ** He denies that the carrier
te relieved from the obligation to give notice of such change unless the pas-
senger makes inquiries, and asserts that there is no authority for such a doc-
trine, and no principle that would give sudi effect to a by-law of a cozpora-
tion not promulgated any more than to a simple memorandum of an ordinarj
carrier which had never left his desk* The usage to allow a passenger to
stop on the way, which the jury might have found to exist down to the time
tiie plaintiff bought his ticket, was not changed by a by-law not communis
cated to the plainti£t nor to the office where he purchased his ticket under
the defendant's authority, or posted therein, or noted upon the ticket, and
the verdict should be set aside.
Bight of PAsaDioxB to Lbavs Tbadt akd BnuxB his journey at another
time: Siaie v. Overton, 61 Am. Dec. 671, and note 677.
EzFULSioH ov PAflSENOEB VBOK BAnjtOAD Tbadt: So^fofd V. RgtUmod
0>., 80 Am. Dec. 286, and note 290; Chioago eie. B. B. 0(k y. Parka, 68 Id.
662, and note 670.
BioHT OF BAXLHOADXkncPANT TO Ldot Tub within which a passenger
ticket may be used: Bo&km etc B. B. Co. v. Proctor, 79 Am. Dec. 729, and
note 73a
UaAOBS ABM Vom Which OoimiAmor Tuma of OoinaAor: Didkhuon v.
Oa^^ 83 Am. Dec. 666w
Thx FRoroiPAL CASE IS ciTBD to the point that ordinarily the ticket is not
the whole contraet, which must be gathered, so far as not expressed, from the
roles and regulations of the railroad company in running its trains, with
the qualification, however, that these rules and regulations must be reason-
able, and not contrary to the terms expressed, in Oordon v. Bailroad, 62 N. H.
699, DieirkhY. Peimayiumki B, B, Co., 71 Pa. St. 436; it is cited to the point
tiiat it is the duty of one about to take passage to inquire when, where, and
how he can go or stop according to the regulations, and if he makes a mistake
which is not induced by the agents of the railroad company, he has no remedy,
in PUtalmrgh etc B. B. Co. v. Nwmn, 60Ind. 144; to the point that a reguk-
206 Miles v. BCilbb. [N. BL
fcion of a railroad oompan^ that a. panmignr pnrrfmaing a tmkob bef ore
entering its cars shall be entitled to a disconnt, bat if such ticket is not pur-
chased fall fare will be charged, fa a reasonable regnlation, and does not
violate a rale prescribed by statate tiiat the rates of fisre shall be the same
for all persona between the same points^ in Bwan y. ifonctefer ate. IL R, Ock,
132 Mass. 117; and to the point that a passenger who rafases to pay fare W
oomea a trespasser, not entitled to the rights and privileges of a paesonger,
and may rightfally be ejected from the train by aa empk^ee of the eompaaj;
in StomT. Baiiroad Co.^ 4tJ lowai 86; iVifibwr ▼. Ohio He M. B. (kk, 16& I&d.
S72.
Miles u Milesl
[48 NBW HAMPSHIftB, 25L)
Widow dobs vot Loss hkr Bight ot Homsstbad or Ebxatb ow First
HnsBAKB by a second marriage, whether the homestead was assigned te
her before sach marriage or not; and a bill in eqoity is a proper proceed
ing for the recoyery and aasignment of sach homestead, and the mimor
children are proper, if not neceasary, partiea to the bilL
Bill in eqmty by husband and wife for the recovery and
assignment to the latter of a homestead. After the bill was
filed, the plaintiffs moved to amend by making the minor
children of her former husband parties plaintiff Other ma^
tsrial faets appear in the csgismn^
Christie J for the defendanL
/. Smithf for the plaintiff
By Court, Bellows, J. The foestioa isy whether the widow,
by a second marriage, loses her right of homestead in the
estate of her first husband.
The argument of the defendant's counsel is, that by such
second marriage she ceases to be the widow of her first hus-
band, or to be any longer the^ head of his fsmily ,. or in a situa-
tion to discharge the duties to his minor children, which we»9
contemplated by the statute in p70vi<fing for this homestead.
By this statute, the family homestead, while occupied as
such by the husband during his life, or '^his widow or minor
children^ or any or either of thern^'^ after his death, is pro-
teeted from lam ei6ditors9 and the pouxiifl, whethez ih» term
" widow "* was used to dtoot? tike person* who^ was the wife el
the deceased,, or whether it was used as a term of fimftation,
operating to givei her aa interest, only so long as she remained
& widowv
Some K|^ may be gained' from the constroetioB gmn t»
Dec 1865.J Ibus v. Mils& 909
tliiB teem in the fanvB upon the someirhai malogoos subject
of dower and distribatiTe eharee in a deoeaied penon'e eetate.
Bj the Berieed Statutes, chapter 166, Compiled Statntea,
diapter 175, yarioas provisions are made for the wife ct a per-
son deceased, and in every one of the fourteen sections but the
eleventh, which merely qoalifies three of the preceding sec-
tions, she is designated as the widow.
One of these sections authorises an allowance fiir present
support to the widow; another gives her dower in the real
estate. Section 8 gives her, in addition to dower, one third
part of all the estate remaining after payment of the debts
and expenses of administration, where the husband leaves no
lineal descendants, or makes no provision for her by will, or
she waives such provision; and by section 9, if the deceased
is intestate, and leave no such descendants, she shall have one
half of the estate so remaining, in addition to her dower, or,
as provided in the next section, to an amount equal to that
which her husband received from her, or in her right during
coverture, if she so elect.
By section 12, if the deceased shall leave lineal descendants,
but no will, she shall be entitled to one third part of the per-
sonal estate in addition to her dower; and by sections 13 and
14, if the deceased die testate, leaving lineal descendants,
but making no provision for the widow in his will, or she
waives such provision, she shall be entitled to a portion of
the personal estate equal with the children, or if she elect, to
one third part of such personal estate. In all these provisions
Bhe is uniformly designated as the widow; and it is obvious,
we think, that ihe term is used as one of description merely,
and not of limitation; and in all but those which relate to
dower she is put upon the footing of others who are entitled
to a distributiYe share; to hold it absolutely, and not as a life
estate.
Neither is it anywhere provided in this or any other statute
that a subsequent marriage shall affect her right to the benefit
of these provisions. In this respect it differs from the cases of
an executrix or administratrix or a female guardian, for then,
by express provisions of our statutes, her marriage extinguishes
the trust; and if it had been the design of the legislature in
its provisions for the wife to limit their benefits to the time
during which she remained a widow, it doubtless would have
been declared in express terms as in the cases of an executrix
or guardian.
Ajc. Dkc. Vox* LXXXVULI— 14
MO MiLBB V. Miles. [N. H.
Th6 pdlioy of the law is against restraints upon marriages^
and therefore a contract not to marry at all, or not to marry
anybody but a particular person, without enforcing a corre-
sponding reciprocal obligation, is treated as mischievous to the
general interests of society, which are promoted by the support
and encouragement of suitable marriages, and therefore such
contracts are void: 1 Story's Eq. Jur., sec. 274
With such views of public policy, it would be utterly un-
reasonable to infer firom the use of the word " widow " in the
various provisions before quoted, a condition operating so de-
cidedly in restraint of future marriages.
The definition of dower at common law, as given by little-
ton, chapter 5, section 36, is where a man is seised of certain
lands in fee-simple, fee-tail general, or as heir in special tail,
and taketh a wife and dieth, the wife, after the decease of her
husband, shall be endowed of the third part of such lands
and tenements as were her husband's at any time during the
coverture, to have and to hold to the same wife in severalty by
metes and bounds for term of her life, whether she have issue
by her husband or no, and of what age soever she may be, so
as she be past the age of nine years. And Coke says in his
notes to the same section that to the consummation of dower
three things are necessary; viz., marriage, seisin, and the death
of the husband.
It will be perceived here that the term "wife" is constantly
used, instead of the term "widow," as in our statute, and yet
they are both used merely as descriptive of the person, and
mean the same thing; and it will hardly be contended that
the estate of the tenant in dower terminates on her second
marriage any more than would be the case of a tenant by the
curtesy.
Nor can it be urged that the distributive share provided by
the statute referred to will be affected by a subsequent mar
riage. Under a similar law in Massachusetts, it has been ex-
pressly decided that the statute is as explicit in giving one
third of the personal property to the widow as in giving the
two thirds to the children; and that the righf of the wife is a
vested interest, and not defeated or affected by her subsfK][aent
marriage or death.
A similar construction, we think, is to be given to our stat-
ute relating to the family homestead that is exempt from at-
tachment and execution during the life of the husband, and
after his death is not subject to the laws of distribution or de-
Dee. 1865.] Miles v. Milss. 211
vise, and shall not be assets in the hands of the administrator,
BO long as the widow or minor children or any of them shall
oocnpy the same.
By the operation of this statute, the wife has an estate for
life in the homestead, upon condition that she continnes to
occupy it: NorriB v. Jtfoutton, 34 N. H. 392, 397, 398. But this
estate is further qualified by the right of the minor children,
if there be any, to occupy and enjoy it with her during their
minority. This interest of the wife is given to her in terms
not differing materially, so fetr as the question before us is
concerned, firom the terms used in the statute before quoted,
providing for dower and a distributive share for the wife; and
there is nothing in the nature of this homestead provision that
calls for a different construction of those terms.
There may, indeed, be cases where a subsequent marriage
might be unfortunate or prejudicial to minor children, who
mi^t need the undivided care of the mother. On the other
hand, there may be no minor children at all, or they may after^
wards have become of age, and in that case the widow alone
would be entitled to the homestead.
It is sufficient, however, to say that the legislature has not
in this instance seen fit to impose any restraint upon the sub-
sequent marriage of the wife in express terms, and none can
be implied firom the use of the term "widow," any more than
in the case of the other statute before referred to.
It is urged that the minor children may, by a second mar-
riage of the mother, be deprived of their home; but we think
that a court of equity would afford ample remedies for such
children should there be an attempt to apply the use and
profits of the homestead to other than legitimate purposes,
namely, the support of the mother and minor children: See
Fletdter v. StaU Capital Bank, 37 N. H. 895.
So far as we have any decisions on this subject, we find no
countenance for the position of the defendants; on the con-
trary, we think their tendency is the other way.
In Narria v. MoulUmj 34 N. H. 892, it is held that the wife
is entitled to a conditional estate for life, depending upon her
occupying such homestead, but nothing is said of the effect of
a second marriage.
In Hoitt Y.Webb J 36 N. H. 158, where the widow had mar-
ried again, nothing was said of the effect of such subsequent
marriage, but the decision was against the wife, upon the
ground that the land was never occupied as a homestead.
See also Fo$ter v. Fo$Ur, 86 Id. 437.
212 SittTv IK Yoinm f N. HI
TTpcui' ilion giuiusdSi we APo^oftho'OpiBifiD tint tlw wife duo
not lose her homestead by^a sabseqaent maoiiage; and we am
also of the opinion that a bill in equity is a proper fbnn of
remedy in such cases: Atki7$99H ▼, AtHngan^ 37 N. H. 4S4;
Btrachn v. Fow, 42 Id. 44.
We think, also, that the minor children^ Me proper if nol
necessary parties to the biH', and that the amendment shoiiUk
be allowed and the demumro'veiTalfid.
ODw vAf MRS <np SomsmiD bt Htrankss wisuuiv
WwtB.myff3am Lmmmv. MegmtkU, 81 Am. Deo. 444; MeKm ^ WUeox, 8i
Id. 743; And a-daed vigned by hwghand and wife will not convey the home-
•tead where the wife does not join in the gzanting par^ bat o^ in the £1
testimonUtm part^ where she joins to reieeee dower: Sharp r. Baiiqfi 81 U
489, and see note 402.
Wimm J9>9waeanam wmm Clazmdm HomsiBAD in- piwiuiini held by
her hasbad; asd vpom whidi he.xMidBd onder a leaee^ the tenn having tab
yised before iwdeftth: Bnnonv^. JSetter, 83 Am. Deo. 26&
Wm^ EiMD^UL DUBDio Husbakd's Lxn doee not impair bar rfghk aftat
hiadeaUi: AOiimmy. jl<Bmon» 77 Am. Deo. 712.
State v. Yoxma.
14A Kbw HAXPSHiaa, 2B6.J
It is kot ^boxbt at Oomkon Law, ob UNDxa Ksw HAionmsB Suai^
un, for one to make a f&lse charge in his own book of aewwuita.
Wsnnffo OB Hmmnaagv Wwam. kaf bb Subjbcv op Fobubt nawfegen-
endly ba or pvrport to be the aet el another, or it mnst.be aame wzitiJig
or instrument nnder which others haTo acquired some rights, or have in
some way become liable, and where these rights or liabilities are aongfat
to be affected or changed by the alteration without their ooosentb
PcmcniD WmmQ or Ivstbument mnrr, in Itsbut, bb Faub, and noiifaa
true instrament which it purports to be, without regard to the jfcruth or
&laehood of the statement tdiioh the writing oontaina.
Indictment for forgery, charging the respondent with hav-
ing made false charges in his own book of accounts. The
respondent demurred generally to the indictment, and the
questions of law were reserved. The facts more folly appear
in the opinion.
Blair J for the state*
/. and J. W. Surrowij for the defendant
By Court, Sabobnt, J. Lord Coke sajre: ^'To ftxrge' is
metaphorically taken from the smith who beateth upon his
anvil, and forgeth what fashion or shape he will; the offisnee
Bee. 1865.] IkATB «. VoBM. Sa£
is called cmneit ybht, and Ae offeiidBr /oiiafiottir, iMid .tke
Latin woid *^ forge' is faUare ar/a6nciir«|.a]id thk 10 fKtpdilj
taken iriKV^ ^e act is done in tbe:nanie of ^nothw panon ":
8 Inst. 169.
'^ Forgery 4t eomnm law denotes a fidie making ^whiah
includes every alteration or additian to a .tvue inBtnnnent)y<B
making malo afdino of any written iiBatonieat fot the pnrpaae
of frand and deceit ": 2 East P. €. 8£2.
Forgiery is the false making or materially altering, with
intent to defrandi of any wiiting whidi, if genuine, 'might
appareniJfy he of legal efficacy cr the fauoMltftioifc of a legal
liability: 1 Bishop's Crim. Law, mm. 428; 2 Id., sec 432.
Our statute against fivgery is as follows: ^* If any person
^ahall falsely make or eounterfirit or frsndnlently altar any
public reecnrd, any writ, prooeas, or pmceadhif of .any court of
'this state, any oertiflcate or attaatatiDn of a justice of the
peace, notary public, clerk of any^conrt, town olezk, ax other
public officer, in any matter whosein oaoh certificate or attes-
tation may be recerred as legal ^proof, any charter, will, deed,
hmd, or writing obHgstory, . » . . faiU of eorchonge, promis-
sory note, .order, acquittance, doKharge tar money or pn^
erty, .... any eertificate ai aecomitaUe receipt ibr moooy
or property, any warrant, order, or reqnoat fur the paymentof
money, or tte delivery of any property or writing of value, or
any writing whatever purporting to eontain ewidenee of the
existence or discharge of any debt, oantract, or poomiee, with
intent that any person may lie«.dafiranded, ha ohall be pun-
ished,'* etc.
The indictment in tins caae was inimded to be founded
'upon the last clause of the statute, «nd it iB« claimed that the
entry upon his account^boek by Ae laqxxhdeni of a charge
against the ^complainant £ar a voBt-efaain was a writing par-
porting to contain evidence of the existence of a debt, contcaot,
or promise witinnthe true nKanxnga&d intent €if the statute.
In examining our statute, it wiUifaerieen that admost eveiy
form of writing or instrument, known to the law is specifically
enumerated as the- subject of fi»9ary,ibttt no mention .is made
of accounts or books of account Is it not probable that, if the
law was intended to apply to so'cozmuon a thing as accounts,
they would have been ^mentionod with the other writings
specified?
The terms ^ writing," '')iDStruBient»".and "'widtten instru-
ment" are used indiscriminotelyiin ctefining iorgei^y at oam-
214 State v. Young. [N. H.
mon law. Thus Blackstone says forgeiy is the fraudulent
making or alteration of a writing, etc. Baron Eyre says it in
the false making of an instrument, etc. Orose, J., says it is
the false making of a note or other instrument, etc. East says
it is the false making of any written instrument, etc.: 2 East
P. C. 852, 853. We see no reason why the term '' writing " in
our statute is not to be understood in the same technical sense
as when used by these early writers when defining forgery at
common law.
It has been held in New York that, at common law, an in-
dictment for forging an order, by fraudulently altering its
date by the signer of the order after it had been answered and
returned to him, with intent to defraud the man to whom it
was given, could not be sustained, on the ground that when
the order had performed its office, and was returned to the
man who gave it, it was his own paper, and that to alter its
date, or even to write a new order like the first, with only a
change of date, would only be making a new order, which any
man may do without its being forgery, even though done wiUi
a fraudulent intent, and because there was no intermeddling
with an instrument or writing which was the property of an-
other. It is also suggested that if a bill of exchange or prom-
issory note be paid and taken up by the maker, who then, for
purposes of fraud, alters the date of the note, such alteration
would not constitute forgery at common law: People v. Fitchf
1 Wend. 198 [19 Am. Dec. 477]; People v. Cody, 6 ffiU, 490.
The statute of New York which was in force in 1837 (R. S.,
pp. 660, 561, sec. 33) provided that "the counterfeiting, with
intent to injure or defraud, of any instrument or writing being
or purporting to be the act of another, by which any rights or
property whatever shall be or purport to be affected," etc.,
shall be forgery in the third degree: People v. Steams^ 21
Wend. 409.
So the statute of Missouri against forgery employs this
phrase: "Any instrument or writing being or purporting to be
the act of another, by which any pecuniary demand or obliga-
tion shall be or purport to be transferred, created, increased,
discharged, or diminished,'* etc.: State v. Fenly^ 18 Mo. 445.
It may well be doubted whether these statutes cjularge or
limit the common law in relation to forgery of instrinuonts or
writings, or whether they only simply express, in describing the
offense, what had lieen understoocl as the legal construction of
the word "instrument" or "writing" at conunon law. For
Dec. 1865.] Statb i;. Younq. 215
Lord Coke, in his InstituteSi says, as we have before seen, that
forgery " is properly taken where the act is done in the name
of another person."
An exception to this mle is stated by Coke, and also in
1 Hale P. C. 683, and in 1 Hawk. P. C. 263, and in 2 East
P. C. 855, and in some other of the older writers, that a person
may be gnilty of the false making of an instrument, although
he sign and execute it in his own name, in case it be false in
any material part, and calculated to induce and then to givo
credit to it as genuine and authentic, when it is (alae and de-
eeptive. This happens, they say, where one having conveyed
land, afterwards, for the purposes of fraud, executes an instru*
ment purporting to be a prior conveyance of the same land.
Here, it is said, the instrument is designed to obtain credit by
deception, as purporting to have been made at a time earlier
than the true time of its execution.
But the Massachusetts commissioners, in their report of
1844, discard the doctrine, not deeming it well founded on
authority; and Mr. Bishop, in his Criminal Law (vol. 2, sec.
481), says we may at least doubt whether the giving a second
deed in the case put could be deemed forgery in this country,
where we have registry laws; but he adds, that perhaps if a
man should surreptitiously get hold of his own instrument
after it had been d'^livered, and alter it, the alteration would
. be forgery; and he cites People v. Fitch, 1 Wend. 198 [19 Am.
Dec. 477], where it is said that if the maker of a bill of ex-
change, after acceptance, should alter the date, whereby the
payment was accelerated, that would be forgery. This would,
of course, be so, because after the acceptance 4t becomes the
contract of the acceptor; it is then his promise or writing, and
an alteration by the maker would then be the altering of the
writing of anoUier. He also cites Commonwealth v. MycaU, 2
Mass. 136, where a justice of the peace had issued a writ which
had been served and returned, and he then altered it in a ma^
terial part, and it was held forgery. We might also add that
where a man had made a promissory note, and delivered it to
the payee, and while it was his property and in his possession,
the maker should surreptitiously get possession of it, and so
alter it as to make it read for a less amount, or to be paid at a
more distant time, that might be forgery.
Thj3 rule, then, seems to be, that the writing or instrument
which may be the subject of forgery must generally be or
purport to be the act of another, or it must at the time be the
216 Statb v. YomML [N. H.
property of anoiher, or it must be aome writing or instrument
under which others have acquired some rights, or have become
liable in a certain way, and where these rights or liabilities
are sought to be affected or changed by the alteration without
their consent) as in case of the alteration ot the writ above
mentioned. In that case, if the magistrate had made some
mistake in his writ, he was at perfect Uberty to correct the
error, and to make any alteration he saw fit, before it went
from his hands tor service; but afiier service and return, when
the rights and liabilities of others had become involved, and
others had become interested by being made parties to the
proceeding, such an alteration might be fiirgexy, if material,
and made without their consent.
A man may make a statement in writing of a certain trans-
action, and may represent and assert ever so strongly that his
statement is true, but if it should prove that by mistake he
is in an error, and that his statement is entirely wrong, that
could not be forgery; and suppose we go further, and admit
that the statement was designedly false when made, and so
made for the purpose of defrauding some one, it does not alter
the case: it is no forgery. The paper is just what it purports
to be, it is the statement of the man that made it; it is a true
writing or paper, though the statement it contains may be
false. The truth may be forged as well as falsehood.
So, in case of a charge on book-account, the charge may in
the first instance be erroneous, and no one would claim that
the p^son making it might not correct it so as to make it
right, and that would be no forgery. But if A gives B his
promissory note, and by mistake the amount of the note is
made ten or fifty dollars too small, B cannot alter the note
after he has received it of A, so as to correct this eiror, with-
out the consent of A. That would be forgery.
A may make a charge on his book againcub B fiur an artide
which B never had, or he may charge for an article actually
delivered a larger sum than was agreed on. It is a false
account, and may have been so made for the purpose of de»
frauding B, but it is no forgeiy. The writing is just what it
purports to be, a charge made by A on his book against B; it
may be wrong in amount, or the whole charge may be a fabri-
cation throughout, still it is A's charge against B, and though
wrongfully made, is no Surgery. To fbige a writing necessarily
implies that a writing be made which shall appear anJ pur-
port to be something whieb it is not in facti or that a wxitiiig
1865.] Stats «. Youm. ' i:i7
be 80 changed or altered that it ehall not be or purport to be
what it waa designed to be. But in making a false account,
the writing is what it was designed to be.
To fozge or to countei&it is to falsely make, and an altera-
tioa of a writing must be falsely made to make it forgery at
ecxmmon law, or by our statute. The term *^ falsely," as ap-
plied to making or altering a writing in order to make it
forgery, has reference, not to the contracts or tenor of the
writing, or to the fact stated in the writing, because a writing
containing a true statement may be forged or counterfeited as
well as any other, but it implies that the paper or writing is
false, not genuine, fictitious, not a true writing, without regard
to the truth or falsehood of the statement it contains, — a writ-
log which is the counterfeit of something which is or has been
a genuine writing, or one which purports to be a genuine writ-
ing or instrument when it is not» The writing or instrument
most in itself be false, not genuine, a counterfeit, and not the
true instrument which it purports to be.
We think it plain that a man cannot falsely make or falsely
alter his own account against another while in his own book
and in his own possession, and before any settlement or ad-
justment of the same, whereby any person but himself has
acquired any interest in or right to the same, as evidence or
otherwise, so as to make it forgery. He may make false
charges in his book, or he may alter charges on his book so as
to make them more trae or more fiaJse so £ELr as the contents
of the charge is concerned, but still it is his own account, just
what it purports to be; it is his own property, in which no one
has acquired any right or interest; it is his own true writing
as much if the charge is false as though it were true. The
AftTft/^ifir of the writing, as being false <u: fictitious instead of
genuine, is not altered by the truth or falsity of the statement
that the writing may contain
Our attention has been called to two cases by the state's
oonnsel, as fa^mring the doctrine that this indictment may be
sustained. The first is BUea v. Coromonwealiky 32 Pa. St. 529
£75 Am. Dec. 568], where it was held that the making of a
£alBe entry in the journal of a mercantile firm by a confidentic'l
clerk and book-keeper, with intent to defraud his employers, is
a forgery at common law. Edwin R. ^es, the defendant, was
eharged with having made a false and forged entry in the jour-
nal of Haskins, Hieskell, & Co, witb intent to defraud said firm.
It was charged that said Biles was at the time the confidential
218 * Stai.5 v. Young. [N. H.
clerk and book-keeper of said firm, and was intrusted and em*
plcyed by them to keep the books of said firm, to make entries
therein, and to have the sole charge and keeping of said books of
account, and of the posting, settlement, and balancing thereofl
The clerk had, under the head of ''Cash Dr. to sundries,"
entered twelve bills receivable, amounting in all to $6,455.63
when correctly footed, but had altered or forged the footing
and carried it out $5,955.63, the result of which forgery was
to represent the cash received five hundred dollars less than
the actual amount, and thereby ehable the clerk to abstract
that sum from the funds of the firm. Upon this evidence, and
proof that Biles was clerk and book-keeper as charged, a ver-
dict of guilty was sustained.
The decision seems to be based upon the ground that the
entry in question was, as between the clerk and the firm for
whom he acted, in substance an acquittance, or in the nature
of a receipt from the firm to the defendant; that as confiden-
tial book-keeper he received the amount of bills receivable; to
discharge himself from liability, he enters the several items in
the journal, as the agent of the firm, and then, not as the
agent of the fijrm, but as an individual, for his own wicked
gain, so erases, or alters, or makes a figure or figures in the
sum total, representing the addition of the entire entry, as to
deceive and thereby defraud his employers. The court say:
''We can see no distinction between this case and the very
numerous decided cases wherein to forge a receipt has been
held to be a forgery."
Upon the ground assumed by the court in that case, it is in
accordance with the other adjudged cases; but whether the
court were correct or not in all their conclusions in that case,
the decision is clearly no authority for the validity of this
indictment.
The other case referred to is Bamum v. State, 15 Ohio, 717
[45 Am. Dec. 601]. Bamum had been indicted and convicted
of forgery under the following circumstances: Bamum had an
account against one Ayer, which was settled in foil on Bar-
num^s book, March 1, 1841, and this settlement was signed by
both parties, or purported to be, in full of all demands to date;
and on the thirtieth day of April, 1845, Bamum fraudulently
altered the figure 1 into a figure 4, so that it then purported to
be a settlement in full to March 1, 1844, the said Ayer then
holding a claim for hats and cloth against Barnum, which had
accrued between 1841 and 1844, and which was theiefore
June, 1868.] Fabmxb v. Edcball. 219
designed fedsely to be brought within the terms of the settle-
ment, and to be cut off or discharged by it with intent to de-
fraud said Ayer. It was held that the charge was well made,
and the indictment sufficient, but the verdict was set aside
because certain evidence was excluded on trial which was held
to be competent and material.
In this case, although the receipt was signed by both par-
ties on the defendant's book, yet it was the receipt of both
parties, in which both had an interest, and to the benefit of
which both had a right, and for either falsely or fraudulently
to alter it was just as much forgery as though it had been
signed by the other party alone, which would be the ordinary
case of forging a receipt of another person, which, at common
law and by the express provisions of our statute, would be
forgery. We have been unable to find any case or any prece-
dent which in any way authorises the present indictment^ and
from the examination we have made, we are satisfied that the
demurrer must be sustained.
Indictment quashed.
Whai dob AMD What dobs hot OanmroiB Fnhubt: 8m Cc
wntk ▼. Samkep^ 00 Am. Deo. 91 ; iSlofe ▼. Fbifd, 03 Id. 680; Banmm ▼. 8k^
45 Id. eOl; MiOerY. Beed. 67 Id. 460.
Altxboto Srtlbmsht or BooK-AO0CNnrT» with intaat to da£niid» held te
be lovgery: Banmm ▼. Siatet 46 Am. Deo. 601.
Farmsb V. Kimball.
148 New HAMPSHIBa, 4».1
UBTmoB Takb per Capita, itndbr RnmuAiiT Dkvibb to the teetatrix'a
oooeiiie and the children of her mother's caaana, to be equaUy divided
ftmong them, unleee something in the will indicates a different intention
on the part of the testatrix; and so^ under sach a devise "onto my
eoosiiis and to the children of my mother^s ooosinsy to be equally divided
between them.**
•
Petition for partition. The plaintiffs and defendants all
ekdmed under the will of Betsy Farmer, who was the daugh-
ter of Benjamin Farmer, and her mother's maiden name was
Kimball, and her maternal grandfather's name was Collins.
She died unmarried, without brother or sister, or any descend-
ant of a brother or sister surviving, leaving both real and per-
sonal estate, appraised at nearly forty thousand dollars. The
larger part of the real estate was derived from her mother's
:22D Faaubb v» Kiuba^lXu [XL TL
«idie;, and tha balance firam herieitheir'B dda^ end Ifke'peEBDin&l
estate was mainly her own accumulation. Hone of the es-
tate ever came to her or her mother or grandmother fix)m the
Collins ancestors. She left only one uncle snrviying, the
younger and half brother of her &ther, but had at the time df
her decease twenty cousins, all on the Farmer eidei and abotft
one hundred and twenty-nine children oi her mother's cou-
sins, twenty-nine of them of the Kimball blood, and the otheni
of the Collins blood, who were her nearest lelstiyes on her
mother's side. Most of them weie personally unknown to hor.
The specific devises and bequests were mostly to relatives on
the mother's side. The residuary clause in the will was as
follows: '^ I give, bequeath, and devise unto my cousins and
to the children of my mother's cousiiis all the rest, residue,
and remainder of my estate, real, personal, or mixed, whereso-
ever found or however situated, to be divided equally between
them after the payment of my just debts and legacies.'' The
real estate to be disposed of under this clause was of the
value of about twelve thousand dollars. The plaintiffs claimed
as cousins of the deceased on the Farmer side, and the de-
fendants as childsen of her mother's cousins. The plaintiffs
contended and claimed that the cousins on the father's side,
and representing his side, should take, as a class, one half the
residuary estate, and the children of the mother's cousins the
other half, as a class, representing the mother's side. The de-
fendants contended that the cousins and the children of the
mother's cousins should take per capita in equal shares.
Christie^ for the petitioners.
/. A, Eastman J for the petitionees.
By Court, Bartlett, J. If in this case the residue of the
estate had been given to the cousins and the children of the
- mother's cousins, to be equally divided among them, the dev-
isees would have taken per capita^ unless something in the
will indicated a different intention on the part of the testatrix:
2 Jarman on Wills, Perkins's ed.. Ill, and note; Bladder v.
Wehh, 2 P. Wms. 885; Lincoln v. Pelham, 10 Vei. 176; Lmg-
"more v. Broom^ 7 Id. 125; Barnes v. Paickj 8 Id. 604; Davenr
port v. Hanburyy 3 Id. 259; Lu,gar v. Harman, 1 Cox, 250;
Smith v. Straifield, 1 Mer. 358; Wdd r. Bradbmryj2 Vern. 705;
Abrey v. Newman^ 17 Eng. L. ic £q. 125; MaUison v. Tamfidd^
3 Beav. 132, and note; Walker v. Griffin, 11 Wheat 374^ Col*
lins V. Hoxie^ 9 Piaige, 88; Ex parte Leitk^ 1 HiU £q. Ifit;
Jane, 1866.] Fabkzb e. Kimball. 22)
Bftnner v. SUymty 1 Band. Ch. 862^ Kean v. Roe, 2 Hanr. ^D«I.)
118; Hefidenon ▼. Womaei, 6 Ired. Eq. 441; Harrw v. PhUpoij
5 Id. 824; f {R ▼. i^prtMS, 4 Id. 246; JSiwfw v. Phifer, 2 Jones,
438; Cheeves ▼. B^U, 1 Jones Eq. 237; QHJHam v. Uwierwoody
3 Id. 100; PatUrson ▼. Pa«tfrwn, 8 Id. 208; fWwweer v. TueJcery
5 Id. 74; Sogers v. firfeifc/iouM, 6 Id. 303; Bwrgin v. Pattern, 5
Id. 426; Howard r. Howard, 30 AJa. 891; McMasUr y. lf<>
Master, 10 Gratt 275; Brotem v. iJcinisoy, 7 Gill, 347; Smith
V. ^9^tir8f , 34 Ala. 208; NichoU v. Xtefmey, 87 Miss. 69; jDvjMml
V. HutdiifwoTi, 10 Rich. Eq., 1.
This constrnction is not controlled by tiie use of the word
"between": -46rey r. Newman, 17 Eng. L, & Eq. 126; Lenden
Y. Etaekmere, 10 Sim. 626; Warrington v. Warrington, 2 Hare,
54; Williams v. Fates, 1 Coop. C. P. 177; or by the repetition
of the preposition: Dowding y. Smith, 3 Beav. 540; Bladder v.
Webb, 2 P. Wms. 383; McMaster v. McMa$ier, 10 Gratt 275;
Brown v. /fexTTway, 7 Gill, 347; or by the fact that the devisees
are not each named individually: Blackler v. Webb, 2 P. Wins.
383; Leev. Lee, 39 Barb. 173; Roper v. Roper, 5 Jones Eq. 17
[75 Am. Dec. 427]; and from many of the cases already cited,
it appears that a difference in the degree of kinship like that
in the present case will not prevent the application of the gen-
eral rule.
It is unnecessary to determine whether the mere fact of the
prior mention in the will of the devisees as classes is to be
regarded as a sufficient indication of an intention so to treat
them in a subsequent clause: See Gilliam v. Underwood, 3
Jones Eq. 102; LocJchart v. Lochhart, 3 Id. 205; Pardice v.
Givens^ 1 Id. 312; Low v. Carter, 2 Id. 378; Bivena v. Phifer^
2 Jones, 486; though perhaps in several such cases it will be
found that other circumstances aided in the conclusion, for
here such a rule would fail to support the claim of the peti-
tioners. The will contains no prior general division of the
legatees into two classes, of which the cousins are to form one,
and the children of the mother's cousins the other. In the
devise to the cousins, the children of Daniel are excepted,
while he takes a share equal to that of each of the other dev-
isees; and the children of the mother's cousins are not made
devisees as a class, for the numerous children of the Collins
blood are not included in the fifth clause of the will: See Doe
V. JoinvUle, 3 East, 175.
But little stress can be laid on the facts as to the sources ^
the property: See Prescott v. Carr, 29 N. H. 453 [61 Am. Dec
222 Fabkbb v. Ktmball, [N. EL
652] ; and besides, no general intent to distribute the propertj
among the representatives of the branches from which it was
derived can be inferred, for the nnmerons children of the
cousins of the Collins blood take under the residuary clause;
and no general intent to divide the property equally between
the paternal and maternal branches of the family of the
testatrix can be inferred, because these Collins cousins are not
included in the fifth clause of the will. In general, where a
class are intended to take as representing some person, they
take together in his stead: Tucker v. Boston^ 18 Pick. 162;
Bretton v. Lethuliery 2 Vem. 653; Davenport v. Hanbury^ 3 Ves.
260 (Sumner's note); Mattison v. Tanfield, 8 Beav. 132; Mil-
ler's Appealj 35 Pa. St. 323; OHt's Appeal, 35 Id. 267; FistelPe
Appeal, 27 Id. 65; Alder v. Beall, 11 Gill & J. 123; Spiney v.
Spiney, 2 Ired. Eq. 103; Levering v. Levering, 14 Md. 30; Bod
V. Mix, 17 Wend. 119 [31 Am. Dec. 285]. But here is noth-
ing suiSSciently indicative of an intention of the testatrix that
the cousins should take as representatives of any one in the
paternal branch, or the children of the mother's cousins as
representing any of her family, and therefore the devisees take
in their own right: Wdd v. Bradbury, 2 Vem. 705; Davenport
v. Hanbury, supra; Northey v. Strange, 1 P. Wms. 343; Bouh
ere v. Porter, 4 Pick. 210; Tondin v. Haifidd, 12 Sim. 167.
Upon the whole, we think that any inference of an intention
to divide the residue by classes is merely conjectural, and
quite too uncertain to prevent the application of the well-set-
tled general rule: Lincoln v. PeUiavi, 10 Ves. 176; Kean v. Roe^
2 Harr. (Del.) 120; and we are of opinion that the individuals
falling within the description of the devisees in the residuary
clause take per capita.
Case discharged.
•
Dsvisi TO Class of PxRSORi^ EfVBcr or, wImm bat one penon of dus
can take, or where none of due osn take: DomUng y. Mankatt, SO Am. Deou
290; Roper v. Boper, 75 Id. 427.
Devisbi to '*Childbxn" and "GRAXLaanjxBaa," oonstnictioa: See
Kay V. Qnmor, 49 Am. Deo. S90; Mowatt y. Carow, 32 Id. 641; Week$ ▼.
WfdtB, 47 Id. 858; Carry. SktiU, 63 Id. 648; Pre^ y. Dams, 62 Id. 396.
DsyiBB 90 Woman " akd bui dnr.nRiN," the being vnmanied and witb
eat childien, efieot of: Oorr y. Atilt 63 Am. Deo. 648.
June, 1866.] Bbown v. Wentwobth. 223
Bbown V. Wentwobth,
[46 NBw numaoM, ml)
!■ PftBflOKAL AonoNB^ NoNSinT WILL as Ehtibsd ab to All* FLAivnii^
where one of the aeTenl oo-plamtiiEi shows to the ooqrt that the aetiai
was broDglit without his knowledge^ oonseati or aathoritj, and bj peti>
Haa duly presented, req^neets to be naosiiited. And an oflar ol indenmi^
by the other oo-plaintiffii to the petitioning plaintifl^ not nade till aftv
the presentation of snoh petition* will not ordinarily pretsnt a nonsmtk
Tbsbpabs. The declaration alleged that the defendants
■evered the plaintiffs' lead pipe, thereby stopping the supply
of water to their several residences. All the plaintiffs, except
Brown, petitioned the court for a nonsuit, representing that the
action was conunenced without their consent, knowledge, or
authority, and objecting to its prosecution in their names.
The opinion further states the case.
Carter and Stevens^ for plaintiff Brown.
Hobba and Sawyer^ for the four other plaintifik
QuarUSj for the defendants.
By Court, Babtlett, J. In this action none of the plain-
tiffs stand in the position of assignors or trustees, but each
"has an equal interest in the claim in suit, and maintains the
action, if at all, in his own right and for his own benefit," and
" each has an equal right to control the suit"; and there is no
evidence of '^ any fraudulent or covinous contrivance to defeat
the action." The case of Caverly v. JoneSj 23 N. H. 678, must
therefore be decisive here; and as four of the five co-plaintiffs
show to the court that the action was brought without their
eonsent, knowledge, or authority, and request to be non-
suited, a nonsuit must be entered as to all the plaintiffs. It
does not appear that any application to these four plaintiffs to
permit their names to be used in the action, or any offer of in-
demnity to them, bad ever been made by Brown until after
they had presented their petition to the court; and we do
not see how this offer of such indemnity as the court may
order can in law stand any better than the proposition of the
counsel for the twenty-nine plaintiffs in Caverly v. JoneSj 23
N. H. 575, that " the action be suffered to proceed," the other
three plaintiffs '* being indemnified against costs." In the
present case, it is unnecessary to decide whether to the ordi-
nary rule there may not exist exceptions, where, from the
necessity or peculiar circumstances of the case, a prior re-
224 State v. Shikbohn. [N. S.
quest or notice and offer of indemnity should not be required
or held essential to the proper commencement of the action,
as hero no facts are stated to take the case out of the ordinary
rule.
There mnsi thn^rft he a noDoait.
When Kmnwii mam}L» o» wm&n» iPor as Omtmam 8o» ns^pt y.
Brighem, 71 Am. Dec 227; F^r,I^arter,99I± n2,9mdmt^UMi iwybe
ordered when: Baher ▼. LetoiSf 75 Id. 59S.
Nonsuit wnx bx Sst jjosm nr FuxnB Gao: iSXeUM t. ilOwA dd
Av. Ob., 84 Aa Be& n3L
Statb i;. Shinbobn.
WiTNXSS MAT TESTDT THAT GaBSIAOK ApPXABX1> TO StABT IBOM Pa»>
TicuLAR Point, on knowledge derived from the aeoaa of hearing, although
the carriage waa not aeen by the witneaa.
Expert may Testot that Entries in Hotel Rjbqisrr, Seen and Ex-
amined BT Him, were in the handwritiBg of the peaon who wrote cer^
tain other aignatures produced and proved or admitted to be the
dfllesdant'a, althan^^ aaeh eostrioa were not before the ]nry» having been
destroyed by the dwfondant himaelf , in oEder to snppreaa the evidence.
Testimont ov Expert mat be Kbgeived to Prove Sionatorb bt Coafr-
PARisoN, althongh there haa been no evidence from any person acquainted
with anch aignstnre.
Xhtbies upon Books or Thibi> Pebsoni op ibbib Dailt TBAiraAOsioiiSi
made by peraona whoae daty it waa to make them, and who teafcify te
their correctneaa when made, bnt who have now no remembrance of tha
tranaaetiona, are competent to be read in evidence; and it ia no objectioii
to their admiaaion that they were first entered npon a slate by two per-
sona daring the day, and at nig^ copied by one of them into the books^
provided the origiiial entries and copying are veiified 1^ the partMi
iNDicTBfiNT charging that defendants in the night-time
did break and enter the store of one A, with intent to steal
the goods and chattels of said A, and that they did steal, etc.
On the trial, one Mrs. B. was permitted to testify as to the
point from which she heard a carriage start on the night in
question, and that it started from somewhere near the loca-
tion of said store. This testimony was excepted to, on the
ground that the witness, not having seen the carriage start,
could not testify, merely from hearing, as to the place from
which it started. Other objections to the admission of evi-
dence, and the grounds therefor, taken by the defendant Shin*
bom, who was found guilty, appear in the opi
July, 1866.] Stats v. Shinbobk.
Lan&j for the state.
Cwhing^ for the respondent
By Courts Bellows, J. The admissibility of the testimoDy
of Mrs. Bellows is sabstantially settled by the case of Whittier
V. FrofnkUf^ Merrimack County, June term, 1865, where it
was decided that it was competent for a witness to state, iu
lespeet to a horse at the time he went off a certain bank, that
he saw no appearance of fright, that his head was turned
round on his side, and plaintiff was drawing upon the rein at
the time the horse went over the wall, and he did not appear
to be frightened in the least before he went off the bank, or
afterwards; that he appeared to be rather a sulky-disposi-
tioned horse to use.
This was held to be admissible^ on the ground that it came
within that class of cases where evidence is received from ne-
cessity, arising from the impossibility of stating those minute
characteristics of appearance, sound, and the like, which nev-
erthelesB may lead the mind to a satisfactory conclusion, and
be reasonably reliable in judicial investigations. Among in*
stances of this class, forming an exception to the general
rule, is the proof of identity in a great variety of eases; such
as tibe identity of person, handwriting, animals, and inani-
mate objects; and so where the identity is detected by the ear,
«c by the sound of the human voice, ol a musical instrument,
the discharge of a pistol, and the like. In the same class are
opinions as to distances, size, weight, and age.
In these.and an infinite variety of other eases, the conclusion
is dza.wn fiom. evid^;ice addressed to the eye or ear, or both,
and which, from its very nature, eannot be described to an-
other. If it eould be, so as to enable a jury to decide, then
the necessity of receiving the opinion, if it may be so called,
would not exist, and the opinion should not be received; and
of this class the proof of value is hdd to bekHig in New
HampefairB.
In the case before us^ no objection is made to the evidenos
that the sound of a carriage was heard, and none could prop-
erly be made; but the objectBon is to stating*, in substance,
fa)nx what direction it first came, or from what point the car-
riage first started; and the objection is put upon the groimd
id the liability to be deceived in respect to the place from
which the soonds pcoceed.
Under some drcumstaaoea, thero may doubtless be difficulty
Jlm. Dec Vol. LXXXvm-lft
226 State v. Shiuborh. [N. H.
in detennining that point; in others there is little or no diffi-
calty in doing so; and upon the whole, we think that evidence
of this character is so far reliable as, in general, to deserve the
ccmsideration of a jury. In some cases it would, of course, be
entitled to but little weight, but the jury would be well quali-
fied to determine what weight to give it in each case as it may
arise.
The same, and perhaps greater, objections might be urged
against the proof of identity from the sound of the human
voice, and yet, in that case as well as this, from the impossi-
bility of describing its characteristics, there might, for the
want of proof of this kind, be a failure of justice.
For the purpose of proving entries upon two hotel registers
to have been made by the respondent Shinbom, an expert,
who had seen them, was allowed to testify that they were in
the handwriting of the person who wrote certain other signa-
tures which were produced and proved or admitted to be
Shinbom's.
The objection was, that these registers were not before the
jury; but it being found by the court that they had been de-
stroyed by Shinbom for the purpose of suppressing the evi-
dence, the testimony of the expert was admitted.
In Botoman v. Sanbomj 25 N. H. 87, it was decided that the
signature of a person to an instrument might be proved by
the opinion of an expert that it was in the handwriting of
the one who made other signatures already in the cause,
and not contested, and that it was not necessary that there
should have been evidence previously from a person acquainted
with the handwriting in question. If, then, the signature in
question is before the court, it may be proved either by the
testimony of one acquainted with the handwriting or by a
comparison by an expert with an undisputed signature already
in the cause.
If the writing has been lost or destroyed, it may be proved
by any witness who has seen it, and is acquainted with the
signature in question, even if such acquaintance is derived
wholly from having once seen the party write.
So we think that an expert who has seen such writing, and
compared it with an uncontested signature in the cause, is
competent to prove it when afterwards lost.
It is true that, in the absence of the paper, the jury have
no opportunity for an actual comparison of the handwriting,
and thus to test the opinion of the expert; but of this the
iolj, 1886.] State v. Shqiborh. 227
qpondent who has destroyed it ought not to complain; and
bendee, in the case of the non-expert who teetifies from a
knowledge of the party's handwriting, derived from onoe see*
ing him write, the signature which he saw made is not ordi-
narily received for the purpose of comparison; hut such
witness speaks from a comparison of the signature in question
with the exemplar in his own mind, and the jury have no
means of testing the accuracy of his comparison.
In both these cases, then, the jury are equally without the
means of testing the opinions of the witnesses by any direct
comparison. In each case, the opinion of the witness is found
from a comparison of the signature in question with, it may
be, a single genuine signature, or an exemplar derived from
Hf in his own mind; aided, as it may be, in the case of the
expert, by a knowledge of those characteristics which indicate
the natural or simulated signature.
Upon the testimony of the expert, we think, therefore, that
fall as niuch reliance can be placed as on that of the non-
expert who has witnessed but a single signature; and such
was clearly the opinion of the court in Bounnan v. fiSanftora, 25
N. H. 111.
Where a writing is lost, the evidence of its execution must
in general be the same as where it is produced, with the ex-
ception of what may be derived from comparison; and it surely
cannot be urged that any greater strictness shall be required
where the instrument is fraudulently destroyed by the maker
with a view to the suppression of the evidence.
Against the admission of this evidence we find no authority,
and none is cited by the defendants' counsel, unless it may be
the case of Reed v. Spavlding^ 42 N. H. 114; and that, we
think, was not in point, because there the witness was not an
expert, and besides, the signature, supposed to be genuine, was
not in the cause, and that is expressly stated as a ground for
excluding the testimony. It is proper to add, also, that the
specific exception hero is that the books were not produced^
and no objection was made that the other signatures were not
genuine.
For these reasons, we think the opinion of the expert was
rightly admitted.
The proof of the entry upon the register of the Island
House stands upon much the same footing as the other, al-
though the specific objection here is that the evidence of a
penon acquainted with the handwriting was not first adduced.
228 State v. Shinborn. [N. H.
As we iiDderstand the case of Bowman ▼. Sanbamy 25 N. H.
Ill, cited hj defendants' counsel, this is entirely unnecessary,
and the case of Myers v. Tosean, 3 Id. 47, is there examined
and qualified, and we think correctly.
The remaining qiaestion is, whether the entries on the books
of Martin, the stable-keeper, made by himself and son, wero
admissible in evidence under the circumstances disclosed.
It appeared that this book contained the daily charges of
horses let at this stable; that the entries were first made dur-
ing the day upon a slate by the said Martin, his son, and a
hired man, each of whom entered thereon such horses as he
let, and every day these entries were copied by the said Martin
and his son upon the book. The correctness of the entries
upon the slate was verified by all these parties, and so, also,
as to copying them upon the book by the father and son; bat
they all testified that they could not remember the transao-
tions so recorded.
We have a case, then, where entries were made in the usual
course of business upon tho books of a third person, by per-
sons whose duty it was to make them, and who testify to their
correctness when made, but who have now forgotten the trans-
actions. This statement, however; is to be qualified by the
circumstance that none of the entries were copied into the
book by the hired man, who may have made the original entry
in question.
Independent of this qualffication, the competency of such
entries is well settled: 1 Greenl. Ev., see. 115, and cases cited;
Bcmk of Monroe v. Culver, 2 Hill, 531; New Hetven County
Bank V. MitcheUy 15 Conn. 206. It is also well settled in our
own state: POhbury v. Locke, 33 N. H. 96 [66 Am. Dec. 711];
Pembroke r. AUenatown, 41 Id. 365; Weiei^er ▼. Clark^ SO Id.
245; and Wheeler v. Walltr, 45 Id. 365.
We even go further in this state, and hold that a private
memorandum, made by a person for hif own ooRveniencey and
not in the usual course of business, but verified by such person
upon the stand, may be read in evidmioe when he has since
forgotten the transaction. The leading case to this point is
Raven v. Wendell, 11 N. H. 112, and this has been followed
by numerous cases here; and the doctrine must now be con*-
sidered as established in New Hampshire. Among those oases
are Watson v. Walker, 23 Id. 471, 495; Webstsr v. Olark^ 80 Id.
2S3; TutOe t: Robinson^ 33 Id. 104; see also 2 PhslL Br., Gamea
and Hill's Notes, p 760^ note 5B8, and cases coUecteL
July, 1866.] &rATB v. Stunborh. 929
The qoeetioD, then, is, whether the achni!«R>ilitj of these
entries is'afiected by the fact that for anght that appears, Hie
horse may ha^e been let to White, and tlie entry on the slmle
made by the hired man. It'irill be observed, however, that he
testifies to the correctness of whatever charges he xxnMie, — in
substance, that he let the horse as his entry ^rported. The
ease, then, is this: Mr. Martin or his son testify that they
copied coTvectly from the slate a charge of a horse to the re-
spondent White; and they both, together with the hired man,
verify the correctness of all their -entries frpon the sla^; and
of course, if the entry there was made by the hired man, he
testifies to the correctness of it; and so it is as to the others.
In effect, then, it is much the same as if <me person had let
the horse, and made the charge upon the slate, and aHOttaer
had copied the charge into the book kept for that puipose, and
boUi entries were verified by the person making them.
Upon the whole, we think that this oemes within tdie prin-
ciple on which such entries ne admitted, lor it is obviooely
immaterial whether the entry upon the slate was made by the
one who copied it or not; because whoever it was, he had for-
gotten it, and its value as evidence depended upon the state-
ment that it was correctly made; and it could make no differ-
ence whether that statement was made by the hired man or
the person who copied it. In either case, the entry is verified
by the oath of the party making it; and on proving it to be
correctly transferred to the book, the entry stands substan-
tially as if all was done by the same person.
In Price v. Lord Torringt^Uj 1 Salk. 285, reported 1 Smith's
Lead. Cas. 139, which was dsmmpgit for beer sold to the de-
fendants, it appeared that in the usual way of business the
draymen came every night to the clerk of the brew-house, and
gave him an account of the beer they had delivered out, which
he set down in a book kept for that purpose, to which the
draymen set their names. The drayman who delivered this
beer was dead; but on proving his signature, the book was
held to be good evidence of the delivery. This was admitted,
upon the ground that it was made in the usual course of busi-
ness by a person since dead, although in fact the entry was
made by another, showing that it is not essential that all
should be done by the same person.
In Paisbury v. Locke, S3 N. H. 96 [66 Am. Dec. 711], a wit-
ness testified that as he drew each load of timber, the amount
of which was in dispute, he put down upon a slate the amount
280 Bt^tb v. Shinborh. [N. H.
of each stick, added them up, and gaye it to his wife or daugh-
ter, who entered it in a memorandtim-book, which he examined,
and fonnd the entries correct, bnt he could not recollect the
Amount of either load; and' the court held the entries to be
admissible.
It is true, as suggested by the respondent's counsel, that
these entries are one degree removed from those in the cases
cited; but still they are in every part verified by the oath of a
witness, and come fairly, as we think, within the scope of the
doctrine announced in the cases referred to.
The case of Barker v. Haskell^ 9 Cush. 218, is much in point.
There the entries upon a slate were made by one plaintiff, and
copied into the day-book by the other plaintiff, and verified
by both; and the books were held to be admissible; and so is
Smith V. Sanford, 12 Pick. 139 and Fazm v. HoUiSj 13 Mass.
427.
The objection to the duration of the imprisonment cannot
be maintained, and does not appear to be urged by counseL
Exceptions overruled.
QpiRioiiB OF WmnusBS as Evzdknob: See WkUikr y. Tcwn qf FtcuMm,
miie, p. 187, end note 1S9.
BzFBBra AND Expert Tsanv okt: See Hammcmd v. Woodman, 66 Am. Deo.
219, and extended note 228; Carr v. Northern LSbcrtks, 78 Id. 342.
Evn>EMGS A8 TO Haiiuwjutuio, eompariflon, etc: Clark ▼. WyaU, Tl
Am. Deo. 90, tnd note 92; Marty v. Barnes, Tl Id. 405; State ▼. Brown, 70
Id. 168, end note 176; CommomoeaUh y. Jeffrke, 83 Id. 712, and note 72a
Entkebs TBAnacBntSD from Slatb, admiasible when: PUUmry v. Lodse,
66 Am. Dec 711, and note 714.
Entbibs nc Faiolt Biblb as Evtdbncb: Campbell v. Wilson, 76 Am
Dec 67.
CASES
COITRT OF CHANCEBT
OF
NEW JERSEY,
Wilson u Wood.
r2 C. B. ORUH, 21A.]
OnrnuusT ior Oohtbtanob or Rsal Estatx bt Dibd, with ''Usual
CovmsAjm," entitles the grantee to covenants of seiam, of right to con-
vey, against encombnuioes, of quiet enjoymenti and of warranty.
What are " Usual CoTsnAsn** m Dibds in Qiyxii Localixt may be
referred to a master to inquire.
The opinion states the case.
Mr. OgdeUj for the complainant
Mr. Leuppy for the defendant.
By Conrt, Obeen, Chancellor. The bill is filed by the por-
chaaer against the vendor, to compel the specific performance
of a contract for the sale and conveyance of real estate. By
the terms of the contract, the conveyance was to be *' by deed
with usual covenants." The deed tendered contained only the
covenant of general warranty. This the purchaser refused to
accepti upon the ground that it was not a compliance with the
ienxiB of the agreement. The counsel of the purchaser there-
upon prepared and submitted to the vendor to be executed a
deed containing (in addition to the covenant of general war-
ranty) covenants of seisin, of right to convey, and against
encumbrances. This the grantor refused to execute.
The only question is, What are ''usual covenants" in a deed
of bargain and sale of a fee-simple estate?
The usual personal covenants inserted in a conveyance in
fee, as stated by Chancellor Kent, arc: 1. That the grantor is
281
232 WII.BON V. Wood. [New Jersey^
lawfhllj seised; 2. That he has a good right to convey; 3.
That the land is free from encumbrances; 4. That the gran-
tee shall quietly enjoy; 5. That the grantor will warrant and
defend the title against all lawful claims: 4 Kent's Com. 471.
The authorities agree that all these covenants, except the
last, are usual covenants in a conveyance of the fee. In lieu
of the covenant of warranty, the usual covenant in England
is a covenant for further assurance: 2 Sugden on Vendors, 7tb
Am. ed., 701, c. 13, sees. 2, 8; 4 Cruise's Dig. 459, tit 32,
Deed, c. 25, sees. 47, 62; 4 Id., Greenleaf's ed., tit. 82, Deed^
c. 26, sec. 47; Rawle on Covenants, 8d ed., 11.
It is material to observe that the question is not what
covenants, in the absence of a special agreement for cov-
enants, the vendor is obliged to give and the purchaser haa
a right to demand. The character of the deed to which the
complainant is entitled depends upon the language of his
agreement, which is to convey ^'by deed with usual covenants.'^
If the defendant intended to rely upon a wellnsettled local
usage, by the aid of which his contract was to be interpreted,
it was incumbent upon him to show it. No such attempt is
made, either in his answer or by the evidence. On the con-
trary, the defendant in his answer relies upon the true con-
struction to be given to the terms of his agreement. It is
shown, moreover, by two of the complainant's witnesses, thai
the deed which the defendant was requested to execute con-
tained the usual covenants.
Upon an agreement for "usual covenants" in a lease, owing
to the great variety of local usages respecting the terms of
leases, it is sometimes referred to a master to inquire what are
usual covenants: Henderson v. Hay, 3 Brown Ch. 532, note;
Boardman v. Mostynj 6 Ves. 467; 1 Hovenden's Sup. 616.
And where a controversy arises as to what are the usual
covenants in deeds in a given locality, the same practice may
perhaps with propriety be adopted. But upon tiie pleadings
and proofs in this case, I see no propriety in such reference.
The complainant is entitled to a decree.
A
May, 1865.] Mittnight v. Smith. 233
MiTTKiGHT "v. Smith.
(2 C. B. ««■», X0.1
Cbdoob ja liABOB OB BSPQBS JmKucniT D HOT EnnDrum to the inter-
ferencd of fbe ooart by injiinotioii, to restnin his debtor from dinpoBJi^
of his property in fraud of the creditor. And a bill filed by a creditor of
a firm, to restnin en ezeontion cfediUn- of an individual partner from
flBfoKing hie lien, npen the partnenhip property^ fonm no esoeption to
the general role.
DocTBiinB THAT Skparati Debt ot Okx Pabtiur shall vot bx Paid oet
of the partnenhip property till all the partnenhip debte are paid applies
ody when tin principles of equity ere broaght to interf en in the distri-
litifln of the pertneafaip property amsng the osediten.
Bnx in equity. The defendants Smith and Beutzel were
partners in bneiness, possessed of a large amount of personal
property, encumbered by a chattel mortgage. The complain-
ant, a creditor of the firm, commenced an action at law for the
recovery of his debt, which action is yet pending. The chat-
tel mortgage was foreclosed, the mortgage satisfied, and a bal-
ance of the proceeds of sale remained in the hands of the
sheriff. After the <x>mmencement of the complainant's action
at law, and before the foreclosure sale, Smith confessed judg-
ment against himself in favor of S. and S. Walters. Execu-
tion issued upon this judgment, ^nd the personal property of
the firm of Smith and Reutzel was levied upon, prior to the sale
under the mortgage. The execution creditors of Smith now
claim the balance of proceeds of the mortgage sale, in the
hands of the sheriff, by virtue of said levy; and the complain-
ant, as a creditor of the firm, claims to be entitled to the pro-
ceeds in preference to the creditors of an individual partner.
Upon filing the bill, an injunction issued, restraining the sher-
iff from paying over the money to the execution creditors; and
the defendants, having answered, now move to dissolve the in-
jmiction, on the ground that the equity of the bill is denied.
O. W. Cummingy for the defendants.
Mr. Stone, for the complainant.
By Court, Gbsen, Chancellor. The equity of the complain-
ant's bill rests on the well-settled principle that joint creditors
have priority of right to payment out of the joint estate over
the creditors of the individual partners, and that a separate
debt of one partner shall not be paid out of the partnership
property till all the partnership debts are paid. The allega^
tions of the bill that the complainant is a creditor of the
234 HiTTMiOHT V. Smith. [New Jersey,
firm of Smith and Reatzel, that the partnenhip property has
been seized and taken by yirttie of an execution issued upon
a judgment at the suit of Walters against Smith, one of the
partners, and that there is no other partnership property suf-
ficient to satisfy the demand of the complainant, are facts
not denied by the defendants in such mode as to entitle them
to a dissolution of the injunction. In fact, no answer has
been filed by Reutzel, one of the partners. But conceding
these facts, the execution creditors, who are defendants, rely
for a dissolution of the injunction on the allegation of their
answer, that although their judgment is confessed by one of
the partners, and is therefore ostensibly the individual debt of
such partner, it was nevertheless in reality a debt of the part-
nership, which Smith, who had taken the partnership property,
assumed to pay. Admitting that this fact would, if duly
established upon the final hearing, constitute a valid defense
to the bill, it cannot, I think, avail the defendant upon the
present application. It is the averment of a new substantive
{act, not a denial of any of the material allegations of the
bilL But it is unnecessary to express any decisive opinion
upon this point, inasmuch as the injunction must be dissolved
upon another ground.
The bill itself is radically defective. The complainant has
no standing in court, and no right to call in question the
validity of the defendant's claim to the partnership property.
He has no judgment or execution against the firm of Smith
and Reutzel. He is a general creditor only
A creditor at large, or before judgment, is not entitled to the
interference of this court, by injunction, to prevent his debtor
from disposing of his property in fraud of the creditor. In
order to enable him to contest the validity of encumbrances
of the debtor's property, he must have some specific claim or
lien on such property. As to real estate, he must have a judg-
ment; as to personal property, he must have perfected his lien
by execution: Edgar v. Clevenger^ 2 N. J. Eq. 258, and cases
cited in note; MelviUe v. Brovm^ 16 N. J. L. 364; Dunham v.
Cox, 10 N. J. Eq. 437 [64 Am. Dec. 460]. A bill filed by a
creditor of a firm, to restrain an execution creditor of an indi-
vidual partner from enforcing his lien upon the partnership
property, forms no exception to the general rule. A partner-
ship creditor, before judgment, has no such quasi lien on the
partnership property as to entitle him to the aid of the court
in protecting and enforcing his claim, either against the indi-
May, 1865.] Ifrmne&T v. SumL 235
vidiial partners or against a creditor of a partner: Young ▼.
Frier, 9 Id. 466.
Tbo doctrine that a separate debt of one partner shall not
be paid out of the partnership property till all the partner*
ship debts are paid does not apply until the partners cease
to haye a legal right to dispose of their property as they
please. It is applicable only where the principles of equity
are brought to interfere in the distribution of the partner-
ship property among the creditors: McDofudd ▼. Beach, 2
Blackf. 55.
The complainant has no such titie to or lien upon the prop-
erty in question as entities him to call upon the court to
interfere in its distribution. The case falls direotiy within the
authority of Young y. Frier, tupra, and must be controlled by
it That case was decided after full ai|(ument and delibera-
tion; and an extended examination of the adjudicated cases
kayes no room to doubt that it is in accordance both with
principle and authority.
The injunction must be dissolyed and the bill dismissed.
iMJUHonov AOAntn BEBioa Dibfosdio or bis Psomerr, when gnoited:
8m J2o«T. BewM» 69 Am. Dm. 170; Uhtr. DUbm,eOld. 172; and note 173.
P^BxraBflHiP CBKiHTOBa^ AHD Cbxdiiqbs ov tnnYTDUAL TAXowBa, Uum
■nd ptiaritiai ol, oonoenuiig ptrtnenhip property: 8m BwBo€k t. Hubbanip
tt Am. Deo. ISO, and caMS ocJleeied in note 131.
The FsniGiFAL oasb is omD to the point thai a ereditor at laige of a
fartnerBhip cannot maintain a aoH^ eyen to reitrain an execntiiai creditor of
a member of the firm from enf oroing his l^gal remedy against the partnerahip
property, in JSmt. TUmooHk, S7 N. J. Eq. 838} it ia cited to the point that
joint debts are entitled to priority of payment oat of the joint Mtate^ in
Aieif T. ffcweOp 33 Id. 73; and is cited in support of the doctrine that none
but a jndgment creditor is entitied to the aid of the court in opening a jndg*
aMot or ordering an iasne on its laimeH between other parties in Stemtri y.
reften^ 88 N. J. L. 277.
OASES
COUBT OF APPEALS
NEW YORK.
Graff v. Bonkbtt.
[SL NlW TOBK, ft.J
Hno or Tkjr loa Dbbiob, asd itnt mm Buniiiv mat n
Qknsral bv Rbachbd, under the New York legidfttioa, throng^ tha
Agency of a court of equity, and applied to the eatidftction of his debts;
bat not property held in trost for him upon a tmst^ or arising out of a
fond prooeediog from a third person, and intended to secure the debtor
a support.
Trust Abisikq out ov Fund F&ooEiDizro ntou Thibd Fkbbok, iNTEifDiD
TO SsouRB Debtor Support, ib not Absolutslt Exempt from equity
jurisdiction, under the New York l^^Uttion, but is subject to the same
conditions under which other trust property maybe enjoyed by a debtor
secure from the attacks of his creditors.
Surplus only of Trust Fund imt Support ov Dbbxob, arxr Providimo
VOR Support, can br Rbacbed by his creditors, under the Kev York
legiBlation.
Action to compel the defendaats to account for certain in-
terest collected by them, and to pay the same over to the
plaintiff. The complaint alleged that the plaintiff was ap-
pointed the receiver of one William H. Bennett; that- Peter
Bennett, the father of William H. Bennett, by his will, gave
the latter the interest on fifteen thousand dollars, to be paid
to him during his life, and directed that that sum should be
invested on bond and mortgage; that the will was duly proved,
and letters testamentary were issued to the defendants, among
whom was William H. Bennett; that the plaintiff, by virtue
of his appointment as receiver, was entitled to receive from the'
defendants the interest on the fifteen thousand dollars, from
the time of his appointment; and that the defendants have
Jan. 186S.] Obaff v. BoNincTT. 237
oollected the interest on the fond accruing shioe such appoint-
ment, and had refused to paj it over to the plaintiff. Judg-
ment was asked that the defendants account for the interest,
and pay the same to the plaintiff. A demurrer hj the defend*
ants to the complaint, on the ground that it did not state facts
sufficient to constitute a cause of action, was sustained. Judg-
ment was thereupon given for the defendants, and the plaintiff
appealed.
John Aitkiny for the plaintiff.
John n. Reynolds^ for the respondents.
By Court, Hogebooh, J. Although the terms of the will
are not set forth in the complaint with any degree of detail,
there is enou^ stated to justify the conclusion that the fund
from which the annuity to William H. Bennett is payable was
given to the executors in trust for that purpose, to invest the
same and to make such payments to the annuitant from the
income thereof during his Ufe. The executors are the trustees
of this fund, and William H. Bonnett is the eettvi que trusty
and it is a trust of personal property. The theory of the com«
plaint unquestionably is, that the interest of the cestui que
imet in this fund is alienable; that it is a vested interest in
possession, and that an assignment to the recdiver passes the
debtor's interest in the fund, even though there was do interest
or income in the hands of the executors at the time of the
appointment of the receiyer, and none then due and payable.
Hence the allegations in the complaint are not that the ex**
ecntors had any income in their hands at the time of the
appointment of the receiver, or that any had then become due,
but that they have collected interest on the fund accruing
since such appointment, and have refused to pay it over to the
receiver; and that the latter ia entitled to all the interest
which has accrued since the date of his i^pointment. This
presents the fizst question whidb is raised by the defendants
in the case, to wit, that nothing passed to the receiver as prop-
erty of the judgment debtor except the installments of interest
which had already beeome due: at the period of his appoint-
ment; that future instaUments which mij^ or might not ever
beeeme doe had not that oharacteristic of fixed and determi-
nate interest which entitled them to the denomination of prop-
erty sack asoffsuld pass to the receiver under an. order mads,
in supplementsfj pfotteodings.
These are same eases whirii tend to nnnli n iifiiiiiiiMSii, iiiiiT
St88 Gbafv v. Bomkbtt. [New York,
such Mems to haye been (he opinion of the court below; bat
I think that court £Edled for the moment to recall a dialinctioiD
which ifl made between different classes of cases on this sub-
ject, and which is founded upon the alienability or non-alien-
abiUty of the debtor's interest in the fund. If this interest is
not alienable, so far as it is necessary for the support of the
cestui que trustj then I think it has been well held, in several
of the cases, that it will not pass to a reoeiTer until it has ac-
tually become due, and perhaps not until it has been in some
way determined that there will be a surplus over and above the
inalienable right of the judgment debtor to a support; for it is
only such surplus which is liable to the claims of creditors;
and this surplus, it has been held, is not properly ascertain-
able under supplementary proceedings to discover and impro-
priate the debtor's property to the satis£Etction of the judgment^
but only in a suit or proceeding where the issue is directly
made upon the amount necessary for the debtor's support, and
to which the trustees and cestui que trust are parties.
But if the debtor's interest in this fund is vested and cer-
tain, though the time of payment may not have arrived, it
strikes me it has about it those elements of property which
would enable it to pass to a voluntary assignee, or to an as-
signee under the insolvent' laws, or to a receiver in supplemen-
tary proceedings. It is an interest to which the debtor is
absolutely entitled under the will, of which nothing but the
law can deprive him, which is necessarily to continue during
his life, and which would have an appreciable value, depend-
ent upon his probabilities of continuance in life, if exposed
for sale. It is a fixed life interest in a specific fund, and the
circumstance that the income or interest has not become due
does not seem to me to destroy the positiveness and absolute-
ness of the interest, even if it should be held to detract slightly
from its value in the market We are therefore necessarily
driven to examine the other and more material question on
the case, to wit, the alienability of this interest by the judg-
ment debtor. If it is so far within his power that he can
effectually transfer it to another person, then it is also, I think,
accessible to the claims of his creditors. The determination
of this question must depend upon the construction which
should be given to our statutes in regard to the limitations of
and interest in personal property, and in regard to the exemp-
tion of certain trusts from the claims of creditors.
It is undeniable that if this were an interest in a trust for
Jan. 1865.] Graff v. Bomiistt. 289
the receipt of the rents and profits of lands it would not
be assignable; and it has been held in several cases that the
atatnte which provides that limitations of fotnre or contingent
interests in personal property shall be subject to the statutory
rules prescribed in relation to future estates in land was, in
effect, a legislative application of the same principles and
policy to both classes of property; and that, even if the pro>
visions of the statute were not sufiBciently comprehensive ab-
solutely to require, as a peremptory injunction of statute law,
their application in all their length and breadth, and in the
same degree, to both classes of property, the argument to be
derived from the general similarity of the legislative enact-
ments in regard to both classes of property, from the similar,
if not equal, mischiefs to be remedied, and from the general
policy of the law, would authorize a court of equity, in the
exercise of its acknowledged powers, to apply the same rule of
oonstruction to both.
I am aware that Mr. Justice Cowen, in Kane v. ChtU 24
Wend. 641 [85 Am. Dec. 641], and Assistant Vice^hancellor
Sandford, in Orowt v. Van Schoonhaven, 1 Sand. Ch. 336, have
contended for the contrary doctrine in arguments of much
ingenuity and force; but I think the great preponderance of
authority is in the opposite direction, and that the rule has
been recognised and acted upon for so long a period, and with
such general acquiescence, that is has become a law of prop-
erty, and ought not now to be invaded; and I confess, if the
question were an original one, I should be of opinion that
essentially the same rule should obtain as to the inalienability
of estates and interests in both classes of property, and in the
rents and profits and income thereof; as otherwise the restric-
tions imposed upon the enjoyment and transmission of inter-
ests in one class of property might be readily evaded by a
testator, by directing its conversion into the other. For my-
self^ therefore, I feel inclined to adhere to the rule as I think
it is generally recognized, and to leave it to the legislature to
sanction a departure from it, if it shall be deemed advisable.
If the view of the case thus far taken be correct, it becomes
nnnecessary to consider the further question which would
otherwise arise, to wit, whether the clause in that section of
our Revised Statutes, concerning the power to decree satisfac-
tion of a debt out of property belonging to a debtor or due to
him, or held in trust for him, which excepts from the opera-
tion of such a power the case '' where such trust has been
240 GhiAFP «. BomcETT. [Ne« Yadk»
created by, or the fund so held in trast has proceeded from^
Bome person other than the defendant himself," interposes am
insuperable barrio to the rdief sought bj tiae plaintifi^ if he
were otherwise entitled to it. One theor j is^ that this {nrma*
ion was deMgned to protect the interest of a benefidiaiy in a
trust, whose object it was to provide for his maintenance and
support, and to the extent necessary for such purpose only.
Another theory is, that the exception exempts from the juri9>
diction of a court of equity, in this respect, all trusts of what>
ever description which proceed &om or are created by some
person other than the debtor himself. A third theory is, that
the exception applies to property held in trust for the debtor,
not belonging to or coming firom him, but proceeding finom a
third person, though created for the debtor's benefit, and in
all such cases preserves the trust fund intact.
My own opinion is, that the true reading of the statute »
this: That, as a general proposition, property held in trust Sat
the debtor, and for his benefit, may be reached throng the
agency of & court of equity, and applied to the satisfaction of
his debts; but not property held in trust for him upon a trusty
or arising out of a fund proceeding from a third person; which
last-named trust property is to be exempted finom equity juris-
diction, not wholly or absolutely, but to the same extent and
under the same conditions under which, trust property may be
enjoyed by the debtor secure from the attack of his creditors^
under other and general provisions f^^plicable to trust prop*
erty. In other words, it was a legislative declaration, in
language intended to be explicit, but possibly liable to some
misconstruction, that property held in trust for the debtor,
when such trust proceeded firom himself, was in no case to be
protected for his benefit; but where the trust or the fiind pro*
ceeded firom some other source, the liability of the property to
or its exemption firom judicial seizure was todepoid upon the
general provisions of law applicable to trust property. It was
not the intention of the legislature to exempt every species of
trust property, originated by a third person, fi^ouL liafailil^ for
the debts of the beneficiary, nor ta deelare, in tiiig connection,
the condition and circumstances upon which such halnlitywas
to depend, but to qualify* the oomprehei»ivQ langusige employed*
in a previotts pact of the seotion, and. partialljr limit its others
wise apparently umniezaal applkatiiOL
The decision, of this question is not,.hosP9Tev; BBoessary^ tsi
this essoin the viiem whickl have taken of it; fbrif theintoi^
Jan. 1865.] Graff v. Bonnistt. 241
«0t of the debtor in this property is only subject to the claims
of his creditors in a particular contingency, and then only to
a limited extent, to wit, on the report of a surplus over and
above an amount necessary or proper for his maintenance and
support, we cannot infer that such surplus existed; and it was
the office and duty of the pleader, by proper averments, to
present such fact in the complaint, even if it were possible in
the present proceeding to do so, without new and distinct
tssiiea or additional parties. The omission to state any of
these facts in the complaint I regard as a substantive defect,
properly availed of by demurrer. I am therefore of opinion
that the judgment of the court below was right, and should be
affirmed.
Denio, G. J., delivered a dissenting opinion.
Tbubis lOB SuppoBT ov Biw If icff ARnw, mmxR K>w Tobx liiaiaLAmui.
— The pToyiaion of the New York statateB, 1 R. 6., p. 729, lee. 63, prdhihii-
ing a beneficiary in a trust for the receipt of rents and profits of land, to be
applied to hia sapport, from ftwrigning or disposing of his interest, applies by
Conse of other sections to similar tmsts of personalty: Lent ▼. ffowairdt 89
N. T. 181; WilUanu y. Tkom, 70 Id. 276; CampbeU r. Foder, 35 Id. 370;
BooBtveU v. RooieoeU, 6 Hon, 44; Lane y. Brownt 20 Id. 387; and the interest
of a beneficiary in the tmat fond in either case cannot be reached by ezeca
tion nor by a creditor's suit in eqnity: BdUbwry v. Parwns^ 36 Id. 13; Camjc
beU ▼. Foster, 35 N. Y. 366; Loche y. Mabbett, 2 Keyes, 460; S. C, 3 Abb.
App. 72; but the creditor may maintain an equitable action to reach the sur-
plus income beyond what is neceesaiy for the suitable support of the benefi-
ciary and his family: ToUea y. Wood, 99 K. Y. 617; Wmiama y. Thom, 70
Id. 274, 277; Locke y. Mabbett, 2 Keyes, 461; & C, 3 Abb. App. 72, 73; Borne
Exchange Bank y. EoTnee, 1 Keyes, 604; S. C, 4 Abb. App* 99, per Denio»
OL J. ; and the pleader ahoold, by proper ayerments, present the fact that
there ia a soiplns of income: MUler y. MUler, 1 Abb. N. C. 37. The surplus
income, howeyer, cannot be reached by proceedings supplementary to execu-
tion: ffann y. Van Voorhie, 5 Hun, 426, 427; Manning y. Evane, 19 Id. 502;
WUHamti y. Thorn, 70 N. Y. 275; Locke y. Mabbett, 2 Keyes, 461; S. C, 3
Abb. App. 72, 73; nor can the disposition of the income be anticipated by
the beneficiary or encumbered by any contract entered into by him: ToUee r.
Wood, 99 N. Y. 618. The principal case ia an authority for the aboye prop<»-
sitions. It ia alao referred to in Anbacher y. Mayer, 53 Wia. 393, aa giying
a oonatmction to the New York legialation; but distinguished in Martin y.
Dame, 82 Ind. 40, in that its decision was based upon statute.
Am. Psa Vol. LXXXVUI— IB
242 Stbonq v. Sun Mutual Insurance Ca [New York,
Strong v. Sun Mutual Insubangb Company.
m Nbw Yobx, job.)
ImOBMBB ABS HOT LlABUI IQR DaHAQX RxSULTDtQ "OH AOOOUST OV"
BuBsmro ov Bonjai8» where by a policy of lasoraiioe npoa the body,
tackle, apparel, and other famitore of a propeller, the maorerB are do4
to be liable " for " the bnrstiiig of boilers.
Action upon a policy of insurance upon the body, tacklCi
apparel, and other fdmiture of a propeller. The complaint
alleged that it was provided by the policy that the defendant
was not to be liable for any derangement or breakage of the
machinery, or bursting of the boilers, unless occasioned by
stranding; but if the said propeller should take fire, or any
parts of the machinery or boilers be damaged thereby, the
defendant was to be liable therefor; and that the defendant
was not to be liable for fiiel, wages, and provisions, nor for any
expenses of any delay consequent upon repairs of any kind.
It was further alleged, that while proceeding on a voyage the
boilers of the propeller burst, and her body, tackle, apparel,
and other furniture were destroyed. The defendant demurred,
on the ground that the complaint did not state facts sufficient
to constitute a cause of action. The demurrer was sustained,
and judgment entered thereon in favor of the defendant The
plaintiffs appealed.
Oeorge B. Eibbardj for the appellants.
E. C. Sprague^ for the respondent.
By Court, Denio, C. J. The complaint was ai^Murently
drawn with a view to present the question of construction aris-
ing upon the exception contained in the policy. As the solu-
tion of that question depends upon the particular language
used, we must assume that the averments contain verbally
accurate extracts from the contract. The position of the de-
fendant upon that language is, that the insurers were not to be
liable for the consequences to the vessel and its equipment
and furniture resulting from the bursting of the boilers; while
the plaintiffs claim that the exemption from liability is limited
to damage to the boiler alone.
Upon questions of this kind, the first resort is to the terms
used. It is not said, in express language, that the defendant
is not to be liable for any loss occasioned by the explosion of
the boiler, but the expression is more brief, and perhaps more
Jan. 188B.] Stbqnq v. Sun Mutual Ihsurancb Ca 24S
indefinite. The company " is not to be liable for bursting of
the boilers." It iSy unquestionably, loss or damage of some
kind, and to some subject, to which the liability is declared
not to extend. The kind of damage was that which would
naturally or probably result from such an accident Such an
occurrence would necessarily injure and would probably de-
stroy the boiler itself, hut it would also be likely to injure the
vessel, and might, as it did in this case, sink and destroy it.
The meaning of the sentence depends much on the force of the
word ^ for." The defendant was not to be liable for bursting
the boilers. In my opinion, it is to be understood in the sense
of " on account of," " by reason of," or " because of." The
word is familiarly used in such a sense; and these are among
its established definitions. A man is said to be liable to pay
damages for the commission of a trespass, or to be imprisoned
finr stealing another's property.
What the defendant was not to be liable for by this clause
was the consequences of the bursting of the boilers; the plain-
tifis took the risk of these consequences upon themselTes. The
nature and extent of the consequences which were embraced
in the scope of the provision is another question. They were
something which the insurers would be liable for, or which it
was supposed they would be liable for, but for the special pro-
vision. The breajdng to pieces and sinking of a vessel, which
was seaworthy at the commencement of the voyage, by a peril
insured against, is a thing for which an insurer is, of course^
liable, and the explosion of the boilers of a steam-vessel, with*
out the iault of the assured, is, upon the concession of the
counsel on both sides, a peril embraced in this policy; the
plaintiffs' claim to recover is based wholly upon that position.
It has been so held in several cases in this country, and I am
not aware that it has ever been contradicted: Citizens^ Ins. Co.
V. GlasgatOj 9 Mo. 411; Perrin v. Protection Ins. Co., 11 Ohio,
147 [38 Am. Dec. 728]; Western Ins. Co. v. Cropper, 32 Pa. St.
351 [75 Am. Dec. 561].
If, therefore, the defendant contracted to be exempt from
liability for damages consequent upon the bursting of the
boilers, the reasonable interpretation to be given to the con*
tract is, that it contemplated the injury to the ship as well as
to the boilers themselves. That, we know, was a result quite
likely to follow from such an accident, and it was one for
which the insurers would be liable under the general terms of
the policy. The intention of the clause under consideration
944 9f ficme v. Sun Mxjtdai» Issouawcs Ca [New Yori^
«eem9 to have been to qualify the efBeci of the general provie-
inoB of theeeotraet.
The eoDneetion in which this particular exception is found
vtrengthene the defendant's position. The whole clause is,
that the insurere are '^noi to be liable for any derangement or
breakage of the machinery, or bursting of the boilers, unless
'•ccaBioned by stranding/' Now, the derangement of the ma-
•chinery migbl be very fatal to Uie vessel, as it might leave her
eacposed to the winds and waves, without aid firom any pro-
pelling power. Bvery one knows that in the absence of means
to keep a ship on its course she is liable to broach to and
feunder if there be at the time a gale of wind. The absolute
injury to the machinery itself, from a derangement of its parts,
would be greater or less, according to the circumstances; but
<^ itself, and unconnected with its consequences to the ship,
it would not, ordinarily, be of sufficient moment to form the
fliubject of a distinct exception in a contract of insurance.
The breaking of a piston-rod of a steam-vessel having a sin^e
engine, during a storm, where there was no duplicate on board,
would, under probable circumstances, be fatal to the ship; but
upon the plaintiffs' construction, the insurers would be respon-
sible for the loss, except the expense of replacing the broken
rod, though they had contracted that they would not be liable
£oT damages on account of the breaking of machinery.
The whole sentence is qualified by the words "unless occa-
'sioned Hby stranding." Stranding is understood to be the
striking of a vessel upon a rock, bank, reef, or the like. A
probable concomitant of such an accident is the derangement
or breaking of the machinery, and bursting of the boilers.
When such an occurrence happens, it is not attributable so
much to the inherent nature of such arrangements, as steam-
engines, as to the perils of navigation which are common to
all methods of propulsion on water. If we suppose the inten-
tion of the parties to this policy to have been to exempt the
insurers from that class of hazards which are peculiar to the
use of steam as a propelling power, and to subject them to
the other ordinary perils, the office of the words respecting
stranding will be quite apparent. As stranding was a thing
which might happen to any vessel, whatever its moving (orce
was, it would be reasonable for the insurers to agree to indem-
nify the owner for all the consequences of such an event, to
any portion of the vessel or her machinery or furniture, and it
would not conflict with the idea that the assured took upon
J«B. 18S6.] Stboss v. Sim Mutual Insoeancb Co. 346
tbeoneiveft tiie clasB of risks which are x>eculiarly oonnectad
vith the gBaermtioKk and use of steam as a pEopeUiag agsni.
The eentence under ooosideraiioo proceeds, ** but if the said
propeller should take fire, er any part ef the maehinerj er
boilers be damaged thereby, the said defendant is to be UaUe
therefor." This may be considered either as a qualification
of the previous language ejcemptlng the insurers from the
eonseqaeiices of the bursting of the boilers, or a pHmaioo in-
troduced for greater cautioii, to {weclude a oonstruction by
which no indemnity was to be allowed the owner lor injuiiaa
to the boilers or machinery, in case of a fiie originating other*
wise than by the ezplosioii of the betlersy but commencing in
parts of the vessel exterior to them. Oa the first sujqposition,
the effect of the language would be, that, as to one of the po»*
sible consequences oi an exploeiony namely, damage by fire to
the boilers or machinery, the exemption finom liability should
not apply. But as I can see no reasonabk metiiw for such a
qualifying provision, and as it would be hostile to what I con-
oeive to be the pcdicy upon which the exoeption was introduced,
Irejectit. I think the pv<msion points to the case of a fire oc-
curring in the vessel, exterior to the boilers, and not occasioned
by their bursting, and that it was intended to exclude any ixb-
imnce that the former languid would operate to deny to the
owners an indemnity for injury to the boilers or machinery
from sfuch a cause. Considered in this l|^t, it would appear
to have been introduced almost from excessive caution. Still,
it is conceivable that the parties may have had in their minds
the case of a fire preceding and not originating in an explosion,
but ultimately causing a bursting of the boilers, and their de>
stmctson from such bursting. Thus understood, the provision
would have a reasonable <qperation, and would not militate
against the interpretation I have given to the prior language.
The plaintifis' constructiQn, as I have remarked, would
confine the exemptiim from liability oa aooount of the burs^
ing of boilers to the injury to the boilers themselves; and se
with the derangement or breaking cf machinery. Had this
been the intention, it would have been more natural to declare
that the boilers and machinery were not covered by the policy,
except as related to injuries not connected with their opera-
tion. But I am more impressed with the idea that the in-
tention of the contract was to except from the indemnity
contracted for the injuries which should result from the pecur
liarly hazardous method of propelling the vesseL The use of
246 Stbonq v. StJN Mutual Ihsurakcb Co. [New York,
i$team introdciceB a class of risks which were unknown when
the terms of the common policy of insurance were settled. It
is not the question whether steam-vessels are not, upon the
whole, safer than those which are moved by the wind and
regulated by sails. However that may be, the former are
exposed to destruction from causes wholly unknown to the
ancient mode of navigation, though they may be more secure
against another class of hazards. It is, of course, competent
for parties to make a contract of insurance which shall ex*
elude the peculiar hazards which beset steam-vessels from the
indemnity provided for. They may also so frame their con-
tract as only to exempt from the promised indemnity the in-
struments provided for generating and applying the steam.
My conclusion is, that the contract we are dealing with is of
the former character, and that it embraces in the scope of the
exception the consequences arising from accidents to which
this method of navigation is exposed, as well as the instru-
ment used in carrying it on.
The cases in this court and in the superior ooort of New York
upon fire policies, though not precisely in point, sustain, to some
extent, the conclusion to which I have arrived: St, John y.Amer'
iean MuL Fire and Marine Ina, Co,j 11 N. Y. 516; JSbyioooct ▼•
Liverpool and London Fire and Life Ins. Co.j 7 Bosw. 885. The
general question in both these cases was, whether an excep-
tion excluding liability from explosions of steam-boilers em-
braced the effects of fires kindled by means of the explosion,
and it was held that it did. The fires were not the immediate
effect of the explosion, nor were the necessary and inevitable
result of such accident; but as they were natural and probable
consequences, they were held to be embraced within the ex-
ception. In both cases the language was more precise than
in the case under consideration; for the words in the first case
were, that the insurers should not be liable for any loss occa-
sioned by the explosion of a steam-boiler, and in the case in
the superior court it was, that they would not be liable for
any loss or damage which might happen by any explosion.
If I am right in supposing that the word ''for'' in the present
policy has the force which I have attached to it, the cases cited
are substantially parallel.
Much reliance is placed by the plaintiffs' counsel upon the
<;ase of Western Insurance Co. v. Cropper, reported in 32 Pa, 8t
351 [75 Am. Dec. 561], where, upon an exception in a policy,
in many respects like the one under consideration, and the
Jan. 1865.] Strong v. Sun Mutual Inbubancs Co. 247
weBeel was lost bj a breakage of the eteam apparatas, it was
held that the insurers were liable for a total loss. The acci-
dent was the burstiDg of a feed-cock and the breaking of a
bolt of the stuffing-box, which caosed the steamer to leak, and
obliged the master to run her ashore, when she was wrecked
and became a total loss. The primary words of exception
were substantially identical with those in the present case,
but certain language was added which is not in the policy
before us. As the court read it (correcting a supposed error
in penning it), it was as follows: " Or from the effects of fire
from any cause connected with the operation of or the repairs
of an engine or boiler, unless the damage be occasioned or
the repairs be rendered necessary by the stranding or sink*
ing of the vessel after her engines and boilers shall have been
put in successful operation." A clause followed this, provid-
ing that the insurers should not be liable for fuel, wages, pro-
visions, or delay " consequent upon repairs to the engine or
boilers, of any kind, or repairs to the hull, if such repairs are
rendered necessary by breakage or derangement of the ma-
chinery or bursting of the boiler." The argument of the
opinion is, in substance, that inasmuch as the contract, inde-
pendently of the principal clause, expressly provides against
liability from fire and from delay occasioned by the breaking
or bursting of the steam apparatus, the principal excepting
clause could not have looked to the general consequences of
such breaking or bursting, for otherwise it would have been
unnecessary to enumerate the losses by fire and delay arising
from the bursting or breakage, as those would have been
already embraced in the provision that the insurers " should
not be liable for any breakage or derangement of the engine
or bursting of the boiler, or any of the parts thereof," which
was the language of the principal exception. In other words,
that, having provided in express terms for certain consequent
tial losses, the general language was not to be construed as
embracing any other consequential damage. Hence, it was
held that where fire or delay bad not resulted from the burst-
ing or breaking, the indemnity was to be limited to a com*
pensatiou for restoring the broken and deranged machinery,
though the entire vessel was lost by the breakage. It is enough
to suy of this case, that it was adjudged wholly upon the force
of language not contained in the contract before us, and that
no opinion is there given upon the interpretation of the excep-
tion, if it had not been accompanied by the additional pro*
248 Darlzngton t. Matob nc. or Nbw Yoiul [Nov York,
▼ifiions. There is a provision in the present policy exempting
the insurers from damages £ar delay consequent upon repairs
of any kind, but this does not appear to me to bear upon the
defendant's liability under the principal exception. My con-
clusion is, that the judgment of the superior court of Buffato
was right, and that it ou|^t to be afGjrmed.
LiABnjTz or Isau&Airai Compaiit vnbsii Exxxpnov ux Pouor: See
note to HUUer y. AUe^ienif Co, M, Ins, Co., 45 Am. Deo. 057; Ornnt v. £ea>
inyton F., L,, A M, Ins, Co,, 61 Id. 74; Bodmer v. EagU ln$. Co,, 09 Id. 908^
Wtslam Jns. Co, v. Cropper, 75 Id. 561. The prineipAl e^se it eited in Hoj^
ward V. Lkerpool e«e. inf. Cd^, 3 Ke{yei» 458; & a» 2 AbU App. 362, to ike
point that a proviaioa in a polioy of fire inBontnoe, ezonflEatiQg the oompeny
from loss by fire which ehould happen by ezploeion, most be taken to indnda
an explosion of a steam-engine insured by the policy.
Darlington v. Mayor etc. of Nbw York.
tSl Kbw Tobx, 1M.1
Act or 1855 roB OoKnNaATnra Pabteb whosb PnofMOT mat bb Db*
STBOTBD BT M0B8 AKB lUois 18 MOV UNOOiQRinmoirAX^ undsT Sec-
tion 14, artide 7, of the New York eonstitutioii, beeaase it was not passed
when three fifths of the members elected to each house were present.
The article of the constitution relates to the state finances, while the act
of 1855 does not impose a tax of any kind.
Lboxslaturb has Plbnabt Poweb CI RisPBCr to All Sbbjbcis oet Cttvl
GovBRNMBivT, which it is not prohibited fromextrGiaiag by the constitB-
Uqu of the United States and of the state.
ACT Subjecting Ck)ONnES and Cuixs to Liabilitt iob Damaobs to
PBori£KT7 BT MoBS AND RiOTS within snch counties and cities is within
the general scope of legislative authority, and ia not obnoxions to the
eoutf ticutiuoal iiruvision that no one shall be deprived of his property
without due process of law.
Act Sdujectino Municipal Corpobations to Liabilitt roa Oamauxs t»
Pbopebty by Mobs and Riots within Thxm is not UNuoN^rrrnr-
tiunal ad taking priyate property for public use without evuipeasation.
PBopbrtt Ownbd by Municipal Gobpobatiov bi Puboo Pbopbkty, and
M under th«s coutrel of the legUiLitureL
Pbopbbty or Municipal Cobpobation is Subject to be Takxm in Exe-
cution, if payment of judgments against it is not otherwise provided for^
although, it seems, property held by it for public use cannot be so taken.
AcnoN brought in the superior court of New York, under
the act of 1855, entitled '^An act for compensating parties
whose property may be destroyed in consequence of mobs and
riots." The defendants admitted the facts stated in the com*
plaint, except the value of the property, which was proved bj
the plainti£El The defendants moved for a nonsuiti which waa
Jan. 1865.] DABLDforoN v. Matob etc. of New Youl 249
granted. The supreme conrty at general term, reversed the
judgment, and directed a new triaL The defendants appealed,
stipulating that judgment absolute should be entered against
tbem in caae the court should not decide in their iavor.
John K, ffaelett and WiUiam FvUerUm^ for the appellants.
TkmMtM Darlington^ in pro. per.y for the respondent.
Cephas Brainerd and James 8. BteamSy of counsel for nine
hundred and fifty plaintiffs in like cases.
By Court, Deiho, C. J. I am of opinion that the act of the
k^alature under consideration did not require the presence of
three fifths of the members elected to each house in order to
become a law. The constitutional provision on which reliance
is plaoed is in these words: '' On the final passage, in either
hoose of the legislature, of every act which imposes, continues,
or revives a tax, or creates a debt or charge, or makes, continues,
or revives an appropriation of pubhc or trust money or prop-
erty, or releases, discharges, or commutes any claim or demand
of the state, the question shall be taken by ayes and noes,
which shall be duly entered on the journals, and three fifths
oi all the members elected to either hoose shall, in all such
cases, be necessary to constitute a quorum": Const., art. 7,
sec. 14. The article of which the section is a part relates to
the state finances, and taken together, it constitutes the finan-
cial system of the state, so far as concerns constitutional re-
straints. The affairs of cities and counties, so far as they are
regulated by the constitution, are treated of in other provisions:
See People v. Supervisors of Chenangoy 8 N. Y. 317.
This act of 1855 does not impose a tax of any kind, either
state or munidpaL Its provisions may, and no doubt will,
lead to the necessity of local taxation; and the same thing
may be said of every act of legislation under which an ex-
penditure for generid or local purposes may, in any contin-
gency, be required. If a local tax in a city or village is within
the scope of the section, it will be sufficient to have the requi-
site qu<Niim present when the tax shall come to be voted.
The act does not create a debt or claim. If no person should
suffer damage by a riot or mob, no money would be required,
and no debt or charge would ever be created; and until such
an event shall occur, no debt or claim will be called into ex-
istence. The legsl principle which imputes the act of an an-
thociied agent to his principal does not sfifij to the riote«v
250 Dabungtoii v. Mayor etc. of New York. [New York^
contemplated by the statute, whose wrongful act might lead to
the incurring of a debt. They would not be, in any sense, the
agents of the legislature. The constitution relates to legisla-
tive acts which of themselves or by their immediate and neces-
sary consequence create a debt or claim. Nor is the act an
appropriation bill in the sense of this provision. No public or
trust moneys were disposed of or set apart for the purpose of
being expended; it could not be known when, if ever, any
payment of money would be required to be made, nor in what
county or city it would be required; and none of the public
moneys of the state were to be expended in consequence of
any of the provisions of the act. The other purposes included
in the section are still more remote from, and indeed have no
relation to, any provision of the act in question. Some of
these positions were adjudged in the case referred to, and the
others seem to be suflSciently plain.
The other objection is, that by force of the act, if it shall be
executed, what is termed the private property of the city may
be taken for a public use without due process of law, and
without a provision for compensation. It cannot be doubted
but that the general purposes of the law are within the scope
of legislative authority. The l^slature have plenary power
in respect to all subjects of civil government which they are
not prohibited from exercising by the constitution of the United
States, or by some provision or arrangement of the constitution
of this state. This act proposes to subject the people of the
several local divisions of the state, consisting of counties and
cities, to the payment of any damages to property in conse-
quence of any riot or mob within the county or city. The
policj^ on which the act is framed may be supposed to be to
make good, at the public expense, the losses of those who may
be so unfortunate as, without their own fault, to be injured in
their property by acts of lawless violence of a particular kind,
which it is the general duty of the government to prevent;
and further, and principally, we may suppose, to make it the
interest of every person liable to contribute to the public ex-
penses to discourage lawlessness and violence, and maintain
the empire of the laws established to preserve public quiet and
social order. These ends are plainly within the purposes of
civil government, and indeed, it is to maintain them that gov-
emments are instituted; and the means provided by this act
seem to be reasonably adapted to the purposes in view.
If tbis were less obvious, the practice of the country from
Jan. 1865.] Darlington v. Mayor trtc. op New York. 261
which we derive bo many of our legal institutioDs would leave
no doubt on the subject. Laws of this general, character have
existed in England from the earliest period. It was one of
the institutions of Canute the Dane, which was recognized by
the Saxon laws, that when any person was killed, and the
slayer had escaped, the ville should pay forty marks for his
death; and if it could not be raised in the ville, then the hun-
dred should pay it. "This irregular provision," says an able
author, ''it was thought, would engage every one in the pre-
vention and prosecution of such secret offenses": 1 Reeves's
History of Eng. Law, 17. Coming down to the reign of the
Norman kings, we find in the statute of Winchester (13 Edw.
I., c. 1, sec. 1) a provision touching the crimes of robbery,
murder, and arson, — that if the country, i. e., the jury, would
not answer for the bodies of the offenders, the people dwelling
in the county were to be answerable for the robberies, and the
damages sustained, so that the whole hundred where the rob-
bery was committed, with the franchises thereof, should be
answerable. It is upon this statute that the action against
the hundred, for robberies committed therein, of which so many
notices are met with in the old books, is grounded: 1 Reeves's
History of Eng. Law, 213; 2 Co. Inst, c. 17, p. 569.
Passing by the statutes of subsequent reigns, and particu-
larly several in that of Elizabeth, in which this remedy has
been somewhat modified, while its principle is steadily ad-
hered to, we come to the 7 & 8 Geo. IV., c. 31, which was an
act for consolidating and amending the laws of England rela-
tive to remedies against the hundred. It repeals several prior
acts providing remedies against the hundred for the damages
occasioned by persons violently and tumultuously aesembled,
and enacts a series of provisions very similar in effect with,
and in some respects more extensive in their scope than, those
of the statute under consideration. As the hundreds were not
corporations, the action was to be brought against the high
constable; and on judgment being rendered, the sheriff was
to draw his warrant on the county treasurer for the amount of
the recovery. Ultimately, the money was to be collected by
local taxation in the hundred made liable. These provisions
have no direct bearing upon the present case, but are referred
to to show that the action in question is based upon a policy
which is coeval with the laws of England, and one which has
been constantly acted on in that country, and hence that it
very clearly £el11s within the general powers of the legislature-
252 Darlington v. Mayor ftc. op New York. [New York,
As, however, the objection of the defendants arises out of a
constitutional restraint, substantially identical with one of the
provisions of Magna Charta (c. 29), it is, at least, a curious
coincidence that the policy of compelling a local community
to answer with their property for acts of violence committed
by others has been considered by the English Parliament as
a supplement to, rather than a violation of, the Great Charter.
In the statute called Articuii super cartam^ 28 Edw. L, which
confirmed the Great Charter and the Charter of the Forest,
and directed that the same should be firmly observed "in
every part and article," it was directed, in terms, that the
statute of Winchester, which gave a remedy against the hun-
dred, for robberies committed in it, should be sent again into
every county, to be read and published, four times a year, and
kept in "every point as strictly as the two Great Charters,
upon the pains therein limited": 2 Reeves's History of Eng.
Law, 340; 2 Co. Inst., c. 17, p. 369.
Assuming it to be sufficiently apparent that the statute in
question falls within the general sc(^ of legislative authority,
the particular inquiry is, whether it violates the coDstitutional
provisions relied on by the defendant. It is plain enough
that the suits which it authorizes will, if successful, result in
requiring contributions from the tax-payers of the local com-
munities to make good the losses of persons who have suffered
from the acts of rioters. In that way, it may be said that
their property may be taken* In one sense it may be conceded
that it is taken for a public use; for when the state undertakes
to indemnify the sufferers from riots, the executing of that
duty is a public concern, and the expenditure is on public ac-
count. It is a public use, in the same sense as the expendi-
ture of money for the erection of court-houses and jails, the
construction of roads and bridges, and the support of the poor.
It is taken for an object which the legislature has determined
to be of public importance, and for the interest of the state.
Private property thus taken is not seized by the execution ol
the right of eminent domain. If it were so considered, all
contributions exacted from citizens for defrajdng the expenses
of the government and of local administration would, in order
to be legal, require the return of a precise equivalent to the
tax-payers as a compensation, which would be absurd. Every
one will at once see that this cannot be so, and that if it were,
government could not be carried on at all. Bat no general
reasoning is necessary, for the subject has been elaboratelj
considered and determined in this court.
Jan. 1865.] Darlington v. Mayor etc. of New York. 253
In the caae of Peofle ex rel. Oriffing y. Mayor etc. of Brooi*
fyn, 4 N. Y. 419 [65 Am. Dec 266], a local assessment,
made pursuant to an act of the legislature, for defraying the
expenses of improving a street, was challenged on the same
ground as the present act. The money of individuals hav-
ing property in a certain locality was required to be taken
and appropriated for the public purpose indicated; and it
was argued that it was a taking of private property other-
wise than by due process of law, and without any provis-
ion for compensation. The opinion of Judge Ruggles, which
was concurred in by all the judges, discriminates with great
clearness between the seizure of property under the power in-
herent in the government to levy taxes for public purposes,
and the taking of specific real or personal estate, either unlaw-
folly or for a public object, without rendering a specific equiva-
lent. In the former case, tbe contributors to the public
burdens receive such compensation as the constitution or the
laws contemplated they should have, in tbe benefits of good
government, and in the advantage which the legislature have
judged that they would receive from the particular expenditure
in question. It is only necessary to add to this branch of the
case that the legislature is the conclusive and final judge as
to what the public interest and general good require to be
done, and of the expenditure which may be needed for any
particular purpose. The principle, which of itself is suffi-
ciently obvious, has moreover been repeatedly affirmed in this
court: Town of Ouilford v. Supervisors of Cfienango County^
18 N. Y. 143; Brewster v. City of Syracuse, 19 Id. 116.
There can be no objection to imposing the burdens which
shall arise in the execution of the act upon the local division
where the riots take place and the losses were occasioned.
This is the case with all public exactions which from their
nature are local in their objects, and which generally arrange
themselves under the head of town, city, or county charges.
If we look at the statute we are examining as resulting ulti-
mately in occasioning taxation for the means of raising tbe
money which will be required to carry out its purposes, the
foregoing observations will be all which it seems to me neces-
sary for the determination of this appeal; and I am of opinion
that it should be considered in that light.
But it is contended that the application of the case to- tbe
city of New York raises a further and difierent question. The
bet that it is governed by a corporation, under a charter con-
264 Dabungton v. Matob btc. of Nsw York. [New York,
ferring certain mtinicipal rights, does not, of course, raise any
distinction. Tiie authority of the legislatore prevails within
the limits of chartered cities and villages, and the public laws
have the same force there as in the other parts of the state.
That position does not admit of an argument: People v. Marrts^
13 Wend. 325.
The particular point appears to be, that the form of the
remedy for raising the money required to pay individual losses
provided by the act leads to consequences which would vio-
late the constitutional provision. The party who has sustained
damages by a riot may prosecute the city corporation; and
the act provides that if he obtain judgment, the city treasurer
is to pay the amount, and charge it to the city. It is
argued that it may happen that there will be no moneys in
the treasury, or the treasurer may be unable or unwilling to
make the payment; but the plaintiff, having a judgment
against the corporation, may cause an execution to be levied
upon its property. The property of the city, it is further
argued, is private property, which the corporation holds by
the same title as an individual or a private corporation, and
that it is equally under the protection of the constitution.
The effect of the act, as it is urged, therefore, is the same as
though the property of one designated private citizen should
be directed to be seized and appropriated to pay a local public
charge. This, it is plain, could not be justified under the
taxing power, or any other head of legislative authority. The
answer made to this argument in the printed opinion of the
superior court is, that the method of collecting the judgment
by application to the treasurer, is exclusive, and that prop-
erty cannot be taken on execution upon such judgments.
This answer is not entirely satisfactory to my mind; by per-
mitting the party who had sustained damages to recover
judgment, in the ordinary course of justice, without any pro-
vision qualifying the effect of such judgment, it cannot, I
think, have been intended to withhold from him any of the
legal rights of a judgment creditor. The most universal of
these rights is that of levying the amount of the judgment
against the property of the debtor by the usual process of exe-
cution. If it were intended to exclude that remedy, it is
difficult to see why a judgment should be permitted to be re-
covered at all. Without that effect, the judgment would be
illusory in many cases, for it would rarely, if ever, happen that
there would be funds in the treasury adequate and applicable
Jan. 1865.] Dabungton v. Mayob etc. of New Yobk. 255
to the payitfent of such damages where they should be for a
oonaiderable amount My opinion is, that the judgment is of
Ihe same force and efficacy as any other judgment which may
be rendered against the city, subject, perhaps, to the duty of
first presenting it to the treasurer.
It is plain enough that it would not be a judidous adndn-
istration of the affairs of a city to permit its property to be
subjected to a forced sale on execution; and hence it has be-
come a usual practice to add to the sums included in the
annual tax levy any amount for which judgments haye been
recovered against the corporation, and to authorise the borrow-
ing of money, if necessary, in order to pay such judgments-
Instances of such legislation occur in many of the recent stat-
utes: Laws of 1863, p. 411, sec. 6; Id. 1864, p. 938, sec. 1; p.
946, sec. 5. A municipal corporation, equally with a private
corporation, may have its property taken in execution if pay-
ment of a judgment is not otherwise made. I am far from
supposing, however, that such estate, real or personal, as may
by law, or by authorized acts of the city government, be de-
voted to public use, such as the public edifices, or their furni-
ture or ornaments, or the public parks or grounds, or such as
may be legally pledged for the payment of its debt, can be
seised to satisfy a judgment. Such, clearly, cannot be the
case, for these structures are public property, devoted to spe-
cific public uses, in the same sense as similar subjects in Uie
use of fhe state government. The argument that I am ex-
amining supposes that the city may possess other property,
held for purposes of income or for saJe, and unconnected with
any use for the purposes of the municipal government. Such
property, the defendants' counsel insists, and for the purpose
of the argument I concede, is subject to be levied on and
Bold to satisfy a judgment rendered against the city corpora-
tioD.
The true answer to the position that such seizure would be
a violation of the constitutional protection of private property
is, that it is not private within the sense of that provision.
City corporations are emanations of the supreme law-making
power of the state, and they are established for the more con-
venient government of the people within their limits. In this
lespect, corporations chartered by the crown of England, and
confirmed at the Revolution, stand on the same footing with
similar corporations created by the legislature. Their boards
of aldermen and councilmen, and other officers, are as truljf
i56 Dablihgton v. Mayob stc. op New Yobk. [New Yorit^
pablic officers as the boards of supervisors, or the sheriffii and
clerks of comities; and the property intmsted to their care
and management is as essentially pnbUc property as that con-
fided to the administration of similar official agencies in
counties and towns. In cities, finr reasons partly technical^
and in part fiyanded npon motives of oonyenience, the title is
vested in the corporate body. It is not thereby shielded from
the control of the legislatoie as the supreme law-making
power of the state. Let us suppose the city to be the owner
of a parcel of land, not adapted to any municipal use, bat
valuable only for sale to private persons for building purposes,
or the like. No one, I think, can doubt but what it would be
competent for the legislature to direct it to be sold, and the
proceeds to be devoted to some municipal or other publio
purpose, within the city, as a court-house, a hospital, or the
like; and yet, if the argument on behalf of the defendants is
sound, it would be the taking of private property for pablic
use without compensation, and the act would be void.
What has been actually done respecting such city property
in the present case, if a judgment for riot damages has the
effect which the argument supposes, and which I attribute to
it, is to render it liable to sale on execution, to satisfy a liabil-
ity of the city arising under the riot act; and this has been
done under the express authority of the legislature. The vice
of the argument of the defendant is, that it assimilates the
condition of the city, in respect to the property to which it
has title, to that of an individual or a private corporation, and
denies to the legislature any power over it which it would not
possess over the fortunes of a private citizen.
I have stated my views in opposition to this theory in rather
a dogmatic manner; but it has not been done without an ex-
amination of the cases which we have been referred to, and
such others as have been within my reach, and as much re-
flection as I could bestow on the subject. I will state, in a
very brief manner, the effect of these authorities. In the case
of Trustees of Dartmouth College v. Woodwardy 4 Wheat. 518, the
particular question was, whether the legislature of the state
of New Hampshire was warranted in passing certain statutes,
altering in many important particulars, the charter of the cor-
poration of Dartmouth College, and assuming to regulate the
execution of its corporate franchises according to its views of
pablic expediency. It was claimed by the college that this
legislation was prohibited by the provision of the constitution of
J&n. 1865.] Dabunoton v. Matob sra of Nsw Yobk. 257
the Uoited States declaring the inTiolability of oontracts; and
the answer to that claim was, that the college waa a pabUc in-
Btitntaon of the state of New Hampshire and hence subject to
the control of the law-making power of that state. The main
question, therefore, was, whether it was a private or public
coix>oration. The judgment was, that, although it was, in a
limited eenae, public, as an artificial being existing by virtue
of the laws, and in this respect partook of the public character
^7hich belongs to all corporations, yet, when looking to the
power of the state, it was to be regarded as a private corpora-
tion, such as a bank or manufacturing company. It is not
important to point out the manner in which this conclusion
was reached, as the case is here referred to only with a view
to the distinction between the two classes of corporations, and
the authority of the legislature over them respectively. On
behalf of the state of New Hampshire, it was argued that the
prohibitory provision of the constitution should not be under-
ctood to comprehend the political relations between the gov-
ernment and its citizens, or offices held within the state for
state purposes, or those laws concerning civil institutions
which it was said might change with circumstances, and be
modified by act of the legislature. Chief Justice Marshall
said that the general correctness of these positions could not
be doubted; and he added, "that if the act of incorporation
be a grant of political power; if it create a civil institution, to
be employed in the administration of the government; or if
the funds of the college be public property; or if the state of
New Hampshire, as a government, be alone interested in its
tranaactions, — the subject is one in which the legislature of the
state may act according to its own judgment, unrestrained by
any limitation of its powers imposed by the constitution of the
United States." But he held that, so far from this, the col-
lege was a private eleemosynary institution, the body corpo-
rate possessing the whole legal and equitable interest, and
possessing civil rights which were protected by the constitu-
tion. Mr. Justice Washington said "that there were two
kinds of corporations aggregate, via., such as were for public
government, and others of a private character." "The first,"
he said, "are those for the government of towns, cities, or the
like, and being for public advantage, are to be governed ac-
cording to the laws of the land." These, he said, were mere
creatures of public institution, created exclusively for public
advantage. It would seem reasonable, he proceeds to say,
AM, Dia Vol. LXXXym-l7
268 Darlington v. Mayor etc. of New York. [New York,
that sach a corporation may be cdntrolled, and its canstitation
altered and amended, by the goTemment in such manner as
the public interest may require. Such legislative interference
cannot be said to impair the contract by which the corporation
was formed, because there is, in reality, but one party to it;
the trustees or governors of the corporation being merely the
trustees for the public, the ceitiU que trust of the corporation:
Story's Com. on the Const, sec. 1, p. 887; 2 Kent's Com.,
p. 275.
The expression of Chancellor Kent, in the Commentaries,
that where a municipal corporation is em]>owered to have and
hold private property, such property is invested with the secu-
rity of other private rights, is understood to mean only that it
possesses such rights against wrong-doers, and not that it is ex-
empted from legislative control. These trustees or governors
have no rights, interests, privileges, or immunities which are
violated by such interference. Justice Story, at the place
cited, expressed himself to a similiar effect, and menticmed
towns, cities, and counties as instances of public corporations
which were subject to legislative control. Similar citations
from adjudged cases and systematic works might be added,
but it is presumed that the principle will not be questioned.
The statutes of this state furnish instances, too numerous for
citation, of the interference of the legislature with the corpo-
rate government of the city of New York. If the charter, like
that of Dartmouth College, was private and independent of
legislative interposition, these acts would be void, upon the
principle of the judgment of the case cited, and the regulation
of the city government would be confined to the brief prescrip-
tions contained in the charter of the colonial governors.
But is not fair to impute to the defendants' counsel a posi-
tion so extravagant. They rely upon a supposed distinction
between the rights and powers of the corporation in the exe-
cution of what is conceded to be its political and municipal
acts, and its title to, and its rights and powers over, the prop-
erty within its control. In respect to its i>owers, the cor-
porate body is understood to be the trustees of the people
represented by the supreme legislative power of the state, but
in regard to its property, it is argued tiiat there are no bene-
ficiaries. The property, it is insisted, is private, and hence
the legislature has no legitimate control over it. If this be a
sound position, the judgments which are every day rendered
against the city, for neglect of its corporate duties in respect
Jan. 1865.] Darlington v. Matob etc. of Nsw York. 259
to the streets and public places, and for the non-performance
of its contracts, and for other causes of action, not only can-
not be satisfied out of the property of the city, but an act of
the legislature which should require its sale and application
to the payment of such judgments would be the taking of pri-
vate property for public use, without any provision for com-
pensation, and would be illegal and void. The sinking fund,
which has been created by legislative authority, and which
embraces the salable lands owned by the city, to protect the
public debt of the city, would be an unoonsdtutioual and a
void creation.
But in what sense can this city property be said to be pri-
vate? It certainly does not belong to the mayor, or any or
aU of the members of the common council, nor to the common
people as individual property: Rao^etdt v. Draper^ 23 N. Y.
818. If one of these functionaries should appropriate it or its
avails to his own use, it would be the crime of embezzlement,
and if one of the people, not clothed with official station, should
do the like, it would be the offense of larceny. Should it be
said thaty like all corporate property, it belongs to the ideal
being, the corporation, and that its title is beneficial and not
fiduciary, that answer would not avoid the difficulty; indeed,
it would not be sound. A corporation, as such, has no human
wants to be supplied; it cannot eat or drink, nor wear clothing,,
nor live in houses. It is the representative or trustee of some^
body, or of some aggregation of persons. We cannot conceive
the idea of an aggregate corporation which does not hold it»
prq^erty and franchise for some use, public or private. The*
OQqpQratkm of Dartmouth College was held to be the trustee
of the donors, or of the youth needing education and moral
and intellectual training. The corporation of New York, in
my opinion, is the trustee of the inhabitants of that city.
The property, in a general and substantial, although not a
technical, sense, is held in trust for them. They are the peo-
ple of this state, — inhabiting that particular subdivision of its
territory, — a fluctuating class constantiy passing out of the
scope of the trust by removal and death, and as constantly
renewed by fresh accretions of population. It was granted for
their use, and is held for their benefit. The powers of local
government committed to the corporation are precisely of the
same character; they were granted and have been confirmed
and regulated for the good government of the same public, to
obeerve order and obedience to law, and to ameliorate and
360 DARLnvcrroN v. Mayor stc. of N^w Yobk. [New York,
impirar^e tbeir eoodition mod vobeerve their convonienee as a
oonmiiiiiity.
Thei?e ax« a few cases which countenance to a certain extent
tdbe Tiews of the defendants' coonsel, which will be briefly
noticed. Tn Baiky v. Mayor etc of New York, 8 Hill, 631 [38
Am. Dec. 669], an action was brought to recover damages
against the city for an injury to the plaintiff's land in West-
>cheeter County, occasioned by the breaking away of a dam
across the Cvoton River, which had been erected by certain offi-
cers, called the water commissioners, under whose directions the
great work of introducing pure and wholesome water into the
•city had been ccmducted. The allegation was, that the dam had
•been unskillfuliy built; the legal question was, whether the city
was so connected with the work as to be liable for the wrong.
The commissioners were appointed by an act of the legislature
to report a plan of the work ; this was to be submitted to the com-
mon council, and to be subjected to the vote of the electors of
the city for their approval or rejection. It was approved, and
•the enterprise, which included the building of this dam, was
then carried on by the legislative commissioners, pursuant to
the acts, under the direction of the common cooncil. At the
circuit, the judge held that the action could not be sustained
Against the city, and nonsuited the plaintiff; the supreme court
«et aside the nonsuit; and the opinion of the court, prepared by
Chief Justice Nelson, contains the doctrine on which the de-
fendants rely. The learned chief justice stated the question
to be, in effect, whether the ]>owers brou^t into exercise in
constructing the work were conferred for public purposes ex-
clusively, in which case, he said, they would belong to the
corporate body in its public^ political, or municipal character;
or whether, on the other hand, those powers were conferred for
purposes of private advantage or emolument. If the former
were the true theory, he considered that the defendants were
not responsible, but that in the latter case they would be; and
he held that the defendants were to be regarded, in respect to
this work, as a private company, like a bank or railroad cor-
poration, and consequently, that the corporation was liable for
the interference of the water commissioners. He conceded
that there was in the enterprise a blending of public and private
objects, which created some difficulty in the mind; but said
that, upon the whole, the distinction was quite clear and well
defined, and the power of separation practicable. He referred
to a number of cases, commencing with TrusUet of Dartmouth
'Jan. 1963^1 DyatLiNfrroEi v. Mayou etc. of New York. 261
CdUfft ¥. Woodward 4 Wheal 518, and including Moodalay
T. East India C(k, 1 Brown Ch. 469, wiiich last case is stated.
^eiy much at large as clearly defining the distinctioa and
being quite deeisive upon the question. It was an action upon
a lease, which the defendants had given to the plaintiff^ pev-
mitling him to supply the inhabitants of Madras with tobaccoi
Ibr ten years, which, it was alleged, the defendants had ille*
gaily revoked, and had granted the privilege to another. Tha
hill was finr a discovery, but the general question was, whether
an action would lie against the company for such a cause^ tha
defendants contending that the acts complained of were done
in the exercise of their functiona as a sovereign power. The
master of the rolls admitted that a suit could not be sustained
in that comrt against a sovereign power, but held that the prin.*
djde did not ap{dy to the case. He said that aa a private
company, the defendants had eotlered into a private contract^
on which they must be liable.
If the chief justice had adverted to the well-known charac-
ter of the East India Company, he would have seen that tha
ease was quite inapplicable. It ia a stock corporation, created
far the purpose of trading with the native inhabitanta ol
India, making regular dividends on the stock, and managing
lis pecmiiaiy affairs through a board of directors, sitting in
Ixmdon. In process of time, and probably at the period of
this decision, it had acquired, or been permitted to exercise,
vast powers of government, which powers have since been
transferred to a board of control appointed by tha crown. Aa
a trading company, it was 9ud is a private corporation,. con»*
ducted for the purpose of individual emolument, and is, no
doubt, liable on its contracts with individuals in the same
manner aa natural persons or private corp<H:ations. The lease
was a contract for trading with the- natives, which the com-
pany had violated, and subjected itself to damages as a pri-
vate company. The other cases referred to in the opinion oC
the supreme court have not any direct bearing upon the ques^
tion under consideration.
If this case of Bailey v. Mayov etc. ef N$w York^ 3 Hill, 531
[38 Am. Dec. 669], had rested where it was left by the su-
preme court, though I should be obliged to acknowledge my
inability to appreciate the distinction suggested between tha
public and private functions of the city government, tha
judgment would have been entitled to a certain weight as
authority. But a new trial took jdace, pursuant to the judgr
262 Darlington v. Mayor etc. of New York. [New York,
cnent of the supreme court, when the plaintiff recoiveTed a
very large verdict, and the case was presented to the court
for the correction of errors, whose judgment of affirmance is
reported in Mayor of New York v. Saileyy 2 Denio, 433. The
chancellor and three senators delivered written opinions in
favor of affirmance, and the president of the senate an opin*
ion for reversal. None of the opinions even alluded to the
ground taken in the opinion of the supreme court. It was
considered by all the members who delivered opinions for
affirmance that public corporations were responsible on ac-
count of their legal personality and their capacity for suing
and being sued for the negligent acts of their agents and
servants in the execution of their duties; and the main
question, which was much discussed, was, whether the re-
lation of principal and agent existed between the corporation
and engineers and others who constructed the dam, seeing
that the water commissioners were appointed by the legisla-
ture. The chancellor was unable to make out that relation^
and placed his opinion for affirmance on the ground that
every owner of land who allowed others to erect nuisances
thereon, or suffered his premises to be in such a situation
as to produce injury to others, is answerable {cxt sueh injury;
and as the city corporation were the owners jof the land on
which the dam was erected, he held they were liable upon
that principle. Senator Hand considered the state as con-
ducting the enterprise through the corporation, and said that
a sovereign power, though it cannot be sued, yet if it become
a member of a corporation, lays aside its sovereignty as to
that transaction or character. Senators Bokee and Barlow
considered that the corporation, by their acceptance of the
act of legislature, constituted the water commissioners their
agents by adoption. The liability of the defendants being
established by the court of ultimate review on an entirely
different theory from that which affirmed the enterprise of
conveying water into the city to be a private work, as dis-
tinguished from an act of municipal government, the doctrine
of the opinion of the supreme court was substantially re-
pudiated, and cannot, therefore, be considered as a precedent
Tt is but the opinion of the eminent chief justice and learned
associates, and does not, like a final adjudication upon the
cause of action, settle any principle of law.
The case of Britton v. City of New Yorky 21 How. Pr. 261,
was decided in the former supreme court, in 1843, while the
Jan. 1865.] Dablikgton v. Mayob etc. of New York. 263
late Nicholas Hill was the reporter; but it was not published
in his reports. After being often referred to in manuscript,
to proTe the private character of the property held by the
corporation^ it was finally printed in Howard's Practice Re*
ports fifteen years afterwards. It was an action brought on a
contract between the plaintiff and common council, by which
the former was to clean the streets in the city for a considera-
tion agreed on. It was decided against the plaintiff, on a de-
murrer to the complaint, on the ground that, by the legal
arrangement of the duties of the several branches of the city
government, the work in question could not be made the sub-
ject of a contract, as such a method of proceeding would con-
trol or embarrass what is styled the legislative power of the
common council. The soundness of that decision is not now
in question; but in arriving at the determination, the chief
justice took occasion to assert that many of the powers and
privileges vested in the corporation were held by it as a pri-
vate corporation, and that it held a mass of private rights
and interests in property, real and personal, in the same way
that similar property was held by private persons; and the case
of Bailey v. Mayor etc. of New Forife, 8 Hill, 531 [88 Am. Dec.
669], was referred to as authority, that case not being then
passed upon by the court of errors. So far as it was intended
to assert that the management of and bargaining respecting
specific property owned by a municipal corporation was sub-
stantially of the same character as that used by private per-
sons and corporations in their transactions concerning similar
property, the remarks were eminently just, and the assertion
of that position was all which was essential to the argument
of the opnion. That argument was, that the duty to provide
for cleaning the streets was legislative in its character, and
not properly the subject of contract stipulations, like arrange-
ments which are made in the management of specific prop-
erty owned by the city. There was nothing in this case which
called for a determination as to the character of the ownership
of such property, in respect to the distinction of public or pri-
vate, or the power of the legislature respecting it. If any of
the expressions of the chief justice can have the construction
that such property owned by a municipal corporation is held,
in all respects and in every aspect in which it may be viewedi
or in regard to the legislative authority over it, precisely like
that held by private corporations or individuals, the language
is unguarded, and cannot be sustained.
264 DABLCiQTOif fi Mayor stc or Nsw Yobk. [New York,
The case of Ben$(m y. Mayor eU. of New Yorl^ 10 Barb. 223,
is a speciaHerm dedsiQii of the late Judge Barculo, deaying
the plaintiff's application for an injunction restraining the cor-
poration of New York from granting certain ferry franchises
between the city and Long Island. The plaintiff claimed to
have grants from certain commissioners, appointed under an
act of the legislature, passed in 1845, and who were thereby
authorised to grant ferry licenses between the city and Long
Island; but they were not to grant a license for any ferry or
ferries which should interfere with the rights, franchises^ or
privileges of the mayor, aldermen, and commonalty of the
city of New York, in and to any ferries already established,
etc. The injunction was denied, on the ground that the grant
which the commissioners had made to the plaintiff did not
interfere with the ferries already established by the corpora-
tion, and which were regarded as in excess of the powers of
the commissioners and in violation of the statute. This de-
cision, of course, does not touch any question before us; but
the learned judge prepared a long and able argument, to show
that the corporation held rights in the subject of ferries which
the legislature could not control. It is not worth while to ex-
amine at length the positions of an opinion wholly aside from
the point decided. Many of the positions are incontrovertible;
such as the rights of grantees of the corporation in existing
ferries, upon the footing of a contract protected by constitu-
tional provisions. So far as the opinion argues that the legis-
lature cannot interfere with the power conferred by the charter
on the corporation, in regard to ungranted ferries, I should
not be able to concur in all that is said. Indeed, the judge
refrains from pronouncing definitely upon that branch of the
subject.
In the case of People ex rel. Baldfem v. J9ati», 37 Barb. 440,
a motion was made in the supreme court for a mandamui against
the comptroller of the city, to compel him to pay the relators
a large sum of money, which had heexk awarded by arbitrators,
iqypointed pursuant to an act of the legislature, to determine
what, if anything, they were entitled to receive from the city,
fer the breach of an aU^;ed contract fer the building of cer-
tain gate-houses in the new reservoir of the Groton water-
works. The corporation had denied the legal existence of the
ocmtract, and refused to coDsummate it, or to allow the rela-
ten to do the work; and the legisLaiure thereupon passed the
act in question, providing bt an arbitration. Ths iuajur
iin. 186S.] IXkKi«iNOT0N v. Mayor etc. of New York. 265
joined in appointing arbitraton, bat oounsel for the city did
not appear at tlie trial; upon which, the award was made
against the city upon an ex parU hearing. The special term
denied the moUon for a mandamus, on the single ground that
it did not appear that the comptroller had any money of the
dty in his lutnds, applicable to that object^ out of which the
amrd could l>e paid. On appeal to the general term, the order
was afi&rmed. One ground of the affirmance, according to the
opinion, was, tbat if tiie relators had a demand against the city,
there was a remedy by action; and that where such a remedy
exists a rmar^dLcLmus will not lie. But the court, moreover, de-
nied the poorer of the legislature to pass a law obliging the
city to submit to an arbitration in such a case. That position
was based upon the constitutional provision protecting private
property, relied on by the defendant in the present case. If
the transaction were between private persons, I doubt not but
that this provision and the one preserving the right of trial by
jury would liave been fatal to the case; so> if the corporation
of the city liad been a private corporation. But being public,
and its charter and corporate franchises being subject to legis-
lative control^ I am of opinion that the legislature had a right,
iA its own authority, to create a board for the adjustment of
the claim without the c<mBent of the city. It may be that they
eould not compel private parties, interested, to submit to such
a tribunal, for they had a legal right to prosecute the city in
a T^olar action; but the legislature had full control over the
city.
The subjects of the several actions, in the cases I have been
examining, were as clearly matters of municipal government
as any which could be presented. Nothing could, in the
nature of things, partake leas of a private character than the
sapplying of water to and the cleaning of the streets of a town
containing nearly a million of inhabitants. If these were not
public subjects, and imder the control of the legislature, the
city is not subordinate to the supreme legislative power on any
ecHiceivable subject; it is an imperium in imperio.
Another case, decided in a sister state, containing doctrines
hostile to the views I have stated, may be mentioned: Atkim
V. Town of Randolph^ 31 Vt. 226. The legislature of Vermont,
in a section of an act to suppress intemperance, had enacted
that a county commissioner should be elected, who might ap-
point an agent for each town to purchase liquors on its account,
to be kept by the agent for sale for medicinal purposes; and
266 Darlington v. Mayor etc. of New York. [New York,
all other selling of liquors was prohibited. One Mann was
appointed the agent for the town of Randolph, and, in that
character, purchased liquors of the plaintiff on the credit of
the town, but had betrayed his trust in not paying over the
proceeds of the sales made by him; the action was brought to
recover against the town the price of the liquors so purchased.
The court held the law unconstitutional, as a violation of the
provision protecting private property, contained in the bill of
rights, which was a part of the constitution, and was in similar
terms with the provision of the constitution of this state so
often mentioned. The opinion, of course, denies the right of
the state legislature to make public regulations binding on the
town, without the consent of the inhabitants, which involve an
obligation to pay money. It is opposed to the right invariably
conceded here, to make such regulations, and stands upon
no principle. Its fallacy was exposed in an able dissenting
opinion of one of the judges, which states the law upon the
subject as I have endeavored to explain it: See Peovle v. MarrUf
13 Wend. 325.
The foregoing are the principal cases bearing with any degree
of directness upon the point whether specific property held by
municipal corporations is subject to the law-making power
vested in the legislature, or whether it is protected against
legislative action by the constitutional provision referred ta
They have not in any respect shaken the opinion which I have
above expressed. It is unnecessary to say whether the legis-
lative jurisdiction would extend to diverting the city property
to other public use than such as concerns the city or its
inhabitants; for this act, if the effect suggested is attributed
to the judgment for riot damages, devotes the property which
may be seized on execution to legitimate city purposes, namely,
to reimbursing those who have suffered damages on account
of the inefficiency of the city authorities to protect private
property from the aggressions of a mob. I am of opinion thai
the order appealed from should be affirmed, on the ground
that the means provided by the statute to raise money to pay
for the damages in question were not hostile to any provisioo
of the constitution.
Inoraham, J., delivered a dissenting opinion.
Xhs raniGlPAL oass is alao reported in 28 How. Pr. 362.
LlABIUTT OV MURIdPAL CoVPCfRATtOVB WOK InJUBIXS OoXMriTSD BT
Hobs. — This labjeot hM already been soinewhat oonaidered in the note te
Jul 1865.] Dablinoton v. Matob arc. of New Yobx. 267
AwrtfK T. CUf qf Leximqim^ 66 Azn. Dea 689; bnt it is now propoMd to add
MUM further anthoritiM and propositioiia to tboee there given.
Mnniei{Md c(»paratian8» it ia weU settled, are under no oonimon*law Ua-
hOity to pay for private property destroyed by mobs or riotous assemblages:
5 Dillon on Mnnidpal Corporations, seo. 059; Prather ▼. (^ qfLexmgton, 18
6 Man. 669; & C, 66 Am. Dec 685, and note; Ward r. CUg qf LouMlk,
16 B Mod. 184; Magor etc qf Balimort ▼. PouUneg, 25 Md. 107; Western
CoUege t. dig t/Cleodamd, 12 Ohio St. 375; BermUv qfSt. AugtuHne ▼. C<mnig
^f PkOadelpkia, Bright. 116, 118; Clear Late Water Works Co, ▼. Laie Co.,
46 0aL 90,92; Lomskmar. Mc^foret. q^Ne^Orkans^lOdV. a 285; yet the
legiaUtnre may constitationally impose a liability vpon them: 2 Dillon on
Ifnnicipal Corporations, sec 959; note to Prather r, Otif qf Lejcbugtoti, mtpra:
DaMmm ▼. Mayor qf New Tork, 27 How. Pr. 842; Lvke y. Ciiy qf Brooktyn,
43 Barb. 64; In re Pennayhania ffaU, 5 Pa. St. 204; WaUams r. City qfNem
Orleans, 23 La. Ann. 607; Foisom ▼. CUy qf New Orleans, 28 Id. 936. This
latter doctrine is also affirmed in the following, upon the authority of the
principal case: AUatitic DoA Co. ▼. City qf Brooklyn, 3 Keyes, 444, 445; 8. a,
1 Abb. App. 26; Orrr, CUyqf Brooklyn, 9Q If, Y. 661, 667; Moodyr, Snper-
fmsoroqf Niagara, 46 "Bsah. 659,662; Sarles r. Mayor etc. qfNew Fori, 47 Id.
447, 461: Bastaum ▼. Mayor etc. qfNew York, 5 Bob. (H. Y.) 389, 397.
Whenever each statutes have been passed, making municipal ooiporationa
responsible for property destroyed or injured by "mobs" or "riots," it is
neoessaiy for the plaintiff to show, in order to maintain his action, that the
property was dssteoyed or injured by such an assemblage: Fatteia r. City qf
New Orleans, 20 La. Ann. 410; Street r. City ^ New Orleans, 32 Id. 577.
There can therefore be no recovery where the destruction was caused by sn
organized body of- citiaens, acting under the orders of and in obedience to a
state government: Street v. CUy qfNew Orleans, supra. So, where a number
of boya demolished, in the daytime, an old and unoccupied building, dispers-
ing upon sight of a police officer, without any indication of any intent to re-
sist opposition by the puldio authorities or by private citizens, a city will not
be li^le therefor under the statute: Duryea v. Mayor etc. qfNew York, 10
Daly, 300. The responsibility does not depend upon the size or formidable
character of the assemblage: County qf Allegheny v. Olbsony 90 Pa. St 397,
417; & C, 35 Am. Rep. 670, 676.
It is thus seen that the right to recover may involve a constmction of the
word ' ' mob " or " not, '* found in the statutes. ' * Mob '* is practically synony •
mooa with "riotous assemblage": See Bouvier's Law Diet., tit. Mob; and
the same title in Webster's and in Worcester's Dictionaries. In criminal law,
''riot " has a definite meaning; viz., a tumultuous disturbance of the publio
peace by an unlawful assembly of three or more persons in the execution of
some private object: See 1 Hawk. P. C, c 65, sec 1;,1 Russell on Crimei^
9tii Am. ed., 378; 2 Wharton's Crim. L., eec 1537; 2 Bishop's Crim. L., sec
1143; Bouvier^s Law Diet., tit. Riot; and see CommonweaUh v. RunneU, 10
liaok 518; a C, 6 Am. Dec 148; Slate v. DUlard, 5 Blackf. 365; S. C, 35
Am. Dec 128; and although the original purpose for which a crowd assem-
bled was lawful, yet they mi^t unite in unlawful conduct, and thus become
fioters: 1 Hawk. P. C, c 65, sec 1; 1 Russell on Crimes, 9th Am. ed., 378;
Solomon v. City qf Kingston, 24 Hun, 562. The cases which have arisen undet
Hm staintea appear to have adopted this construction.
The atatntes nsnaUy impose the liability upon counties, cities, and towns,
iiicspeoUve of the q[nestion whether they could or ought to have prevented
the destruction of the property: Ohadbomme v. Town qf Newcastle, 48 N. IL
26ft D^RLXN'OTON t7. Mayok ETC. OF Nbw York. [New York,
1^; Palmer v. City qf Concord^ 48 Id. 21 1 ; Couuty o/AUegkatff ▼. Oibaonr 90 Pa.
St. 897, 417; S. C, 35 Am. Rep. G70, G76; Ecu^tman v. MofforeU. qfNew Tork^
5 Rob. (N. T.) 389; bat it id otherwiao in Marylaad: Mayor etc qf HoQeniown
▼. Detheri, 32 Md. 369; Dufp v. Mayor etr. of Baltimore^ Taney, 200; and
Sire€i V. CHty qfNew Orleans, 32 La. Ann. 577, in which it was held that thi
oould be no recovery against a city when ita police force was not nnder ths
control of its authorities, bnt, nnder the orders of the govemcr, had been re-
moved from its post.
Nevertheless, it is generally profvided that a person shall notify the proper
authorities, in order that he may avail himself of the benefit of the l^gisLation,
if he has been apprised of the threat or attempt to destroy his property. Bnt
the notice is required only when he has knowledge of such threat or attempt,
and has sufficient time in which to give the notice: Donoghue v. Comity qf
PJJladelplua, 2 Pa. St. 230; County qf Allegheny v. Oibeon, 90 Id. 397; S. a,
35 Am. Rep. 670; Schiellein v. Svpertfiwre qfKmge Co,, 43 Barb. 491; Moody
V. Superoieors qf Niagara Co,, 46 Id. 669; Solomon v. City qf Kingston, 24 Hun,
562; Wing Chung v. Mayor etc, qf Los A ngeks, 47 OaL 531. Mere apprehension
of an attack has been said not to be sufficient to deprive a person of the right
to sue, if no notice thereof was given: 8t. MtehojeTs Church v. County qf PkUnh
delphia. Bright. 121. The fact that threats and complaints were communi-
cated to the plaintiff, or that intimations of danger were given to him, is
competent evidence on the question whether he should have given notice:
Chadboume v. Toum of KeweasUe, 48 N. H. 196; Paimer v. City qf Concord,
48 Id. 211. The object of such notice is to ensble the sheriff of the conn^,
or mayor of the city, or both, to take the necessary precautions for the pn^
tection of the property so threatened. It has, therefore, been held that
notico by the party threatened is unnecessary, when the sheriff and the
mayor had notice from other sources: Newberry v. Mayor efe. qfNew York, 1
Sweeny, 369; and that after the injury or destruction has ooeurred, no notioe
of such fact need be given: Ely v. Supervisors qf Niagara County, 36 N. Y.
297. It has been said, in an early case, that " the notioe must be explicit in
deeignating the property threatened, and in giving information to the proper
officer of such threat or intention to attack or destroy *': SL MiehaeFs ChMtrdk
V. County qf PhUadelphki, Bright. 121; and it was thought that the notioe
should be in writing: Id.; but in Donoghue v. County qf Philadelphia, 2 P^ Si.
230, the court was of the opinion that a verbal notice ** that it was expected
the church would be attacked, and if so, the school-house would go too,'* was
sufficient in case of the destruction of the school-house. In these two latter
cases, the view is also taken that the notice must be given by the owner of the
property or his duly authorized agent. The object of the statute in requiring
notioe seems to be lost sight of in these Pennsylvania decisions. An informal
notice, if it sufficiently apprises the officers of the danger threatened, would
seem to be all that should be required. The liberal doctrine announced in
Newberry v. Mayor etc, <^New York, supra, is in accordance with sound reason.
It has also been the general policy of the legislation to further deny ita
benefits to the owner of property destroyed who has himself been at ^mlt.
The statutes usually require him to use all reasonable diligence to prevent
the damage, and refuse to permit a recovery if the destruction or injury " was
occasioned, or in any manner aided, sanctioned, or permitted, by his careless-
ress or negligence "; or, according to another form, if the destmotion or in-
jury vras caused by his "illegal or improper conduct.'* The words "shall
have used all reasonable diligence " refer to a time anterior to the injury, and
to previous precautions and care used to prevent the destruetion: Eagtman v.
Jan. 1865.] Darlington v. Mayor etc. of New York. 269
Md^or He, qfNew Tork, 5 Rob. (K. Y.) 389; and the "careletisneas or negli-
genee " ref ened to are rach as aetoally oocaaion or pcozimatoly oantribate to
the injury or deatmetion: B^ v. Smperviaors qf Niagara Co., 36 K. Y. 297;
and aaa Wmg Chung ▼. Mc^for tic </L<m Attgeiea, 47 CaL 531; and it aeema,
alaoy the "illegal or improper '* conduct moat have been the proximate canse:
OoutOy qf Allegheny v. Oifiaoa, 90 Pa. St. 397, 415; S. C, 35 Am. Rep. 670,
674. The keeping of a bawdy-houae is not of itself, therefore, an act of
"careleaaneaa or negUgenoe **: Bly ▼. Stiperdaon qf Niagara Co,, supra;
BbdgeU ▼. C% qfSyraaue, 36 Bajrb. 626; Moody ▼. Supervisors qf Niagara
Co., 46 Id. 659; and evidence that tiie business canried on in the building was*
from its noisome smells, a public nuisanoe, is inadmissible, either to justify
its destruction or as tmiding to show contributory negligence on the part of
the plaintiff: Brigktman v. InhabUants qf Bristol, 65 Me. 426; 8. C, 20 Am.
Rap. 711. It is not necessaiy to aver in the complaint that the destrucnon
or injury did not occur through the negligence or careleasness of the plaintiffs
Woife ▼. SMparvisors qfBiekmond, 11 Abb. Pr. 270.
The destruction of property is "caused" by the owner's "illegal or im-
proper oooduct,** if without such conduct on his part the destruction would
not hare occurred: Chadboume ▼. To/ion qfNewoasile, 4S N. H. 196; Pakner
▼. City qf Concord, 48 Id. 211. ** Illegal " means something unlawful or con-
trary to law: Chadboume v. Town qf Newcastle, supra; and see Fortujtich v.
CHy qf New Orleans, 14 La. Ann. 115; and "improper" conduct is such con-
duct as a man of ordinary and reasonable care and prudence would not, un-
der the circumstanoes, be guilty of: Chadboume v. Town qf Newcastle, supra;
Palmar v. City qf Concord, suprcu Accordingly, it has been held that the
keeper of a drinking and gambling house may not be entitled to recover for
property destroyed in such house in a riot growing directly out of a dispute
there arising, concerning a gambling transaction, although he was not por-
soually engaged in such dispute or transaction: UnderMUT, City qf HancheS'
ter, 45 N. H. 214. But the assertion of a legal right in a legal manner, in
pursuit of a legal and ordinary business, is not " improper conduct ": County
qf Allegheny v. Gibson, 90 Pa. St. 397, 416; S. C, 35 Am. Rep. 670, 675. A
city would not be absolved from liability because the mob was fired upon by
the military before the destruction of the property: Id. ; nor because the rail-
road company, in whose possession the property was, attempted to move its
trains in opposition to the will of the mob: Id. It is not "improper con-
duct " to introduce men and arms into a house destroyed, nor to fire upon the
mob after it had begun firing: Donoghue v. Couniy qf Philadelphia, 2 Pa. St.
830,231.
The residence of the owner of the property destroyed is immaterial: Wil^
Hams V. City qf New Orleans, 23 La. Ann. 607; County qf Allegheny v. Gibson,
90 P^ St. 397; S. C, 35 Am. Rep. 670; unless, of course, it should be other-
wise provided by statute; and it is also immaterial whether any or all of the
rioters were citizens of the defendant or not: Chadboume v. Town qf New-
easOe, 48 K. H. 196; Palmer v. City qf Concord, 48 Id. 211. Where, also,
the act makes a county liable for the destruction of property "situated"
therein, it does not affect the liability that the property was in transit at the
time of its destruction: County qf Allegheny v. Gibson, supra.
Corporations are included in the words "person or persons," used in a
statute, and are entitied to the benefits of the act equally with individuals:
Hermits qf 8t Augustine v. County qf Philadelphia, Bright. 116; 8L MichasPs
Church V. Couniy qf Philadelphia, Id. 121; Comndsdoners qf Kensington v.
Couniy qf PhUadel]^ 13 Pa. St. 76.
S70 Dabltnqton v. Mayor etc. of New York« [New York^
If the act makes a mnnicipal oarporation liable for injniy to life or Ifanb
as well as to property, an actioii for the kOliiig of a peraon should be broo^t
fai the name of the personal representative of the deoeaaed: CkifiifAtekkim t.
7Viii«, 9 Kan. 850.
Under the California act of 1868^ a daim for damagea against a oonnty, or
dty and ooonty, is not to be preeented, in the first instaaoe^ to the board of
snperviBors for aUowanoe, bnt a judgment must first be had, and thereapon
the board mnst order it paid, unless it shall determine to ^ypeal: Bottk ^
Ca!\/omiaY. 8haber,66 0aL 822; Cketr Lake WaUr Wwhi O^ r. LcJ» (kmt§t
45 Id. 90.
The measure of damages for property destroyed is its value at the time of
destruction, with interest: Hermiis qf 8L AmguaUm ▼. Cfomnt^ ^ PhUadd'
phia. Bright 116; 8L Miehaef$ Churdk ▼. Oom^ </ PhOade^iMa, Id. 121;
Brightman ▼. InhabitantB qf Briitoi, 65 Me. 426; & C, 20 Am. B^ 711; and
undoubtedly the same basis of estimating damages in oase of an injury merely
to the property would be adopted. For a case showing that other diimB(taB
may be recovered, under certain circumstances, if they are the direct and
naturalresultsof the attack, see Pawner v.C^c/ObiKord, 48 N.H. 211. In
IlermUs qf SL Angustkie v. Conn^ of PhUadelpkiaf mpm, the right to reoover
exemplaiy or vindictive damages was denied. The vahie of property appi^
priated and carried away by the mob can be recovered under a statute mak-
ing a city or county liable for property "destroyed or injured**: 8arle$ v.
Mayor etc qf Kew York, 47 Barb. 447; Solomon v. CUy qf KmffeUm, 24 Hun,
662; and see Mayor etc. qf BaUmore v. PouUney, 26 Md. 107.
Ths pbinoipal CASS IB ciTXD in PeopU v. Pinekney, 32 N. Y. 306, to the
point that the legislature has plenary power in respect to all subjects of oivfl
government which it is not prohiVited from ezeroiBing by the constitutions of
the United States and the state; in Waliads v. Mayor etc, qfNeu) York, 3 Hun,
96, S. C, 5 Thomp. k 0. 322, People ex reL Saumlere v. Sftpervisws </ JBrie
Co,, 1 Sheld. 519, and Oordon v. Cornea, 47 N. T. 612, to the effect that the
question of taxation is one exclusively for the legislature; in Brindterkqf v.
Board qfEducatian, 6 Abb. Pr., K. &, 433» 8. C, 37 How. Pr. 514^ 2 Daly,
446, to the point that municipal corporations are allowed to assume some of
the duties of the state, and enjoy property and power for that purpose, as
auxiliaries of the government and trustees for the people; and their prop-
erty is under the legislative control: People ex reL ffayden v. OUy qfRoehet'
ter, 50 N. Y. 530; PeopU v. IngereoU, 58 Id. 21, 31; Mayor etc t^New York
V. New York etc Ferry Co., 8 Jones & B. 249; lAieae v. OomnUaehnere qfT^
peamoe Co,, 44 Ind. 533; but see Lucae v. Commieahners qf Tippeeanoe Co,, 44
Id. 551, per Buskirk and Pettit, JJ., dissenting; BcUdwin v. Mayor etc qf
New York, 45 Barb. 360; & a, 30 How. Pr. 291; and oon^are Baldwin v.
Mayor etc qfNew York, 45 Barb. 381; B. 0., 30 How. Pr. 313, per WiUes, J.,
dissenting; Baldwin v. Mayor etc qfNew York, 2 Keyes, 396^ per Peckham, J. ;
and their property may be in satisfaction of the claims of creditors, except
such as is devoted to public use: Brinekerhoff r. Board qfBdueaiion, 6 Abb.
Pr., N. S., 432, 438; S. C, 37 How. Pr. 613, 519; 2 Daly, 445, 450; Leonard
V, Reynolda, 7 Hun, 74; Leonard v. CUy qf Brooklyn, 71 N. Y. 499; Cityq/
Rochester v. TownqfBuak, 80 Id. 307; so the legislature possesses entire con-
trol over the stree1» of the city of New York: MetropoUtetn Board qf HeaUh v.
Heiater, 37 Id. 672; Fearing v, Irwin, 55 Id. 490; Fearing v. irwin, 4 Daly,
392. The principal case is further cited in Harlem Oaa Light Co, v. Mayor
etc of New York, 3 Rob. (N. Y.) 140, per Robertaon, J., dinenting, to the p<Mnt
that the city of New York is in no sense a private corporation, except so far
March, 1865.] Bubl v. New York Cbntbal R. R. Co. 271
■fl it can take, hold, or transfer property and tiien only at tiie jtepreaentative
of the state; in HeAerv. Mayor tic if New Turk, 28 How. Pr. 210, S. C, 18
.Abb. Pr. 374, to the point that the city of New Tori^ is liable to be soed and
to hare jndgments rendered against it^ although no means haTe been provided
\fj wfaieh ilie liabilities have been discharged; it is quoted hi PeopU ex reL
Sen York etc R, R, y. Hanemeifer^ 47 How. Pr. 511, S. 0., 4 Thomp. k 0. 380^
Omei ▼. CS^ </ BrooUyn, 8 Hon, 98^ and /» <Ae MaUer qfOe PeUtitm </ FML,
8 Lsns. 97, to the point that article 7 of the New York ccBstitntioa relates to
tin state ^naa%^^^ and not to tiie affairs of dties and ooontaes; it is referred
to in Ham t. Mayor etc qfNew Tort, 5 Jones k 8. 476^ per Houell, C. J., dis-
senting as weakening the force of the decision in Bailey ▼. Mayor etc qfNem
Tork, 3 Hin, 631; and it is denied in BdUwim r. Mayor etc </Nem York, S
Keyea, 398, 1 8. C, 1 Abb. App. 77, per Peckham, J., in holding that the
lagialfttiire had no right to appoint a board to arbttnte on a daim against
a nnmicipal corporation; bat see Baldwki^ ▼. Mayor etc i/Nem Tori, 2 Ksyei^
415, 8. C, 1 Abb. App. H per Hnni^ X» dissmitii^|.
BuEL V. Nbw York Central Railroad Company.
[n NBW YoBK, n4.]
FaSBBIGKB IS KOT TO BX DXDCKD OUILTT 09 GOIITBIBUTOST NsOUGKraB
WHXN InJUiUED IN Attbuftiho TO LxAVX Oab on seeing a train ap-
proaching at soch a speed that a collision was inevitable.
R4ILBOAD COKPAinr 18 NOT AbSOLYXD TROM TilABILlTT lOB InJUBT TO
p^aeoDroBB on Platiobm, oocorring while he was attempting to leave toe
car to escape a collision, under a regalation, pursuant to statute, pre*
hibiting passengers from standing or riding on the platform.
TaBrnaoNY or Medical Men as to PxBKANKNcnr ov Psbsonal Injubt d
NOT Ikoomfbtxht in an action for damages for negligently causing snob
injury.
Action to recover damages for injuries sastained by the
plaintiff while a passenger on the defendant's railroad, by a
collision of trains. The facts are sufficiently stated in the
cpinion.
/. H. Martindaley for the plaintiff.
5. 71 FairchUdj for the defendant.
By Court, Wright, J. It is not now claimed, as it was on
the motion for a nonsuit, that the evidence failed to show
nogligence on the part of the defendants. Indeed, a grosser
case of careless conduct is seldom presented to a court and
jury. The train in which the plaintiff was a passenger had
been run on the switch at Bergen to await a train from the
west which was due there; after waiting some fifteen minutes,
the train was irregularly started, the conductor getting on the
engine; it was a dark and foggy night; the train had pro-
272 BuEL V. New York Central R. R. Co. [New Yoik,
ceeded some forty rods, when the western train was ^n ap-
proaching at a rate of speed of about twenty-five miles to the
hour; an effort was made, by breaking up and reversing the
engine, to get the up-train back on the switch, but before this
could be effected, a collision of the trains occurred. The case,
then, was, that on a dark and foggy night, trains of the defend-
ants running in opposite directions, out of time, and one of
them, at least, at an unusual rate of speed, near a station, run
into each other, occasioning destruction of property and peril-
ing the lives of the passengers. No casualty can occur on a
railroad which manifests grosser carelessness than a collision
of trains which are running towards each other out of time,
and at a rate of speed which prevents their being stopped in
season; and that was just this case.
But it is insisted that, although the defendants' negligence
caused the injury complained of, the plaintiff should have
been nonsuited, because his careless conduct contributed to
produce it. The misconduct alluded to is, that upon seeing
the approaching train, and men jumping from other cars to
avoid the impending danger, he left his seat and rushed to
the forward door of the car with the view of escaping himself,
and had stepped one foot upon the platform at the instant of
the collision; this, it is said, was such negligence as to have
required the court to nonsuit the plaintiff. That is, as a mat-
ter of law, a passenger in a railroad car, who sees that he is
placed in peril by the culpable conduct of the managers of the
road, and judges correctly that a collision is inevitable, is
guilty of a wrong if he does not control the instinct of self-
preservation, and sit still, and take the chances of safety.
This is not the law; seeing the danger in which he was placed,
the plaintiff was justifiable in seeking to escape injury by
leaving the car; his act was not the result of a rash appre-
hension of danger that did not exist. By the merest chance,
the passengers in the same car with him, and who did not,
like him, see the approaching collision, and who retained their
seats, escaped uninjured. Although doubtless much excited,
I do not think even that there was an error of judgment as to
the course pursued to secure safety. A moment of time earlier
would have enabled him to leap from the car, thus affording
a probable chance of escape. But if he misjudged in this
respect, the circumstances did not, as matter of law, charge
him with negligence or want of ordinary prudence. Seeing
the approaching train, and that a collision, with its conse-
March, 1865.] Buzl v. Njbw York Ckntral B. R. Co. 27S
queDoes, was inevitable, it w«8 not the dictate of prudence to
have deliberately kept his seat, without an effort at self-preft-
ervation. There is no man, under the circumstancee, retain-
ing his senaea, and acting with ordinary prudence, that would
not have exerted himself in some way to escape the great
periL It was not to invite, but to escape, injury that he left
bis seat, and rushed to the door of the car; and an instant ct
time more would have enabled him to effect his purpose*
Tliat other passengers, who neither saw nor had notice of the
impending danger, remained in their seats, and by chance
were uninjured, is no evidence that they judged rationally, or
judged at aU, as to what prudence required, or that the plain-
tiff misjudged, and acted rashly. At all events, it was for the
jury, and not the court, to say whether the plaintiff's conducti
in view of the circumstances, was rash or imprudent, or
amounted to negligence.
The court was requested to charge the jury, that, as the
plaintiff was injured on the platform of the car, in violation
of the prinrted regulations of the company, he was not entitled
to recover; this was properly refosed. The statute exempts
a railroad company from liability to a passenger who shall be
injuied while on the platform of a car, etc., in violation of
the printed regulations of the company, posted up at the tiuM
in a conspicuous place, inside of its passenger-cars, then in
(be train; provided the company, at the time, furnished room
inside its passenger-cars sufficient for the proper accommoda-
tion of the paesengers: Laws of 1850, c 140, sec. 46. There
was in this case a printed regulation pursuant to this statute
posted in a conspicuous place inside the car, prohibiting pas-
sengers from -standing or riding on the platform of any car.
But neiliier the statute nor the regulation has any application
to a case like the present one. The plaintiff was not standing
or riding on the platform at the time of the collision, but was
hurrying as fast as he could to leave the car, in order to escape
an imminent peril. The statute wae intended to prevent tbe
imprudent act of standing or riding on the platform, but not
to absolve railroad companies from responsibility for every in-
jury which might happen at that place when a passenger is
passing over it, while justifiably entering or leaving the cars.
Medical witnesses, who had attended upon and made fre-
quent examinations of the plaintiff, even down to the day
before the trial, were allowed, under objection, to give their
opinions as to the permanency of the injury; and in the case
Ajc Dxa Vol. LXXXVm— 18
274 BuEL V. Nbw Yobk CximuL R. R. Ca [New Yoric,
of Dr. Thompeon, npon his answering that he thought the in-
jured leg would idways be an imperfect limb, to state to what
degree imperfect, including disability and pain. This was
not error; the objection was to the incompetency of the testi-
mony, and not to the incompetency of the witnesses to express
their opinions on the subject of inquiry. It was not incompe-
tent; ttie plaintiff was entitled to be compensated for the pain
and suffering and disability resulting from the injury. In es-
timating the damages, the length of time an existing injury
will continue must necessarily be considered; and there is no
way of arriving at a conclusion on the subject except by obtain-
ing the facts and the opinions of medical men. The questioQ
is peculiarly one of medical skill and experience. I am of
the opinion that the judgment of the supreme court should be
aflSrmed.
Judgment affirmed.
IvjuBT nr AmMPmio 10 Bkuts IimuiBiiT Vmmil, — If mm ii pbead by
Um nagUgenoe of aaotlier in moli a podtioii that heii oomiMilM to ehooi
vgaa the iostaai^ m tbe face of aa appuently gfavo and iinpendiag perO,
boiwoau two haninlii, aod he makM moh a ohoioe as a perwa of ofdhiaiy
pmdenoe in the ame ■itiiatiai& mi^t make, and iojiixy leealts thKebon,
the fM^ that if he had ohooen the other haard he would hare eeoeped
doei not prove oontribntory ne^igenoet Note to Freer t. Cameromp 65 Am.
Dec. S74; TwanUe^ y. Oeiiiral Park etc B. R., eS N. Y. 100; D^er t. SriB
Ify, 71 Id. 286; WUmmr. Northern PaeyieB.R., 26 Uian. 286; ImttamofoUe
etc. S.B.r. StmU^ 63 Ind. 166; and tee ffammm y. Hobokem Ltmi etc Oo^ 2
Bely, ISi. One who places another in snch a sitaalacn that the lattar nnst
adopt a periloas altematiye is responsible for the oonseqneness; Mckeri t.
Long lekmd R. i?., 67 Bub. 660; iMv. NorUmm Oadnd ITy, 16 Hnn, 602.
An instinetiye eflfort to esospe a sadden impending danger, raswlting from the
negligence of another, will not relieve the latter from liaUlitj: (htgiUr t.
Decker, 20 Id. 176; WeiUk ▼. Mead, 8 Id. 394; OmUer v. Anmwm eku A-
f»«w(^, 6 Lens. 68; JToisr^y.Cbtfra/ {%-&>• M Barb. 67. The principal
case is cited to the f ccegoing points.
OpnrioHs ov MnxnuL Him ab to Pbobablb OoiisiQinaiCB ov Pbbsoiial
Iir/UBOB censed by n^ligence are admissiMe in an action lor damages tiMce-
fcr: Tour ▼. New York efe. J2. JZL, 38 Hon, lOS, citing the princ^al ease; and
wbeOardHntr^. Poofk, 6 Park. Or. 2Q2i
March, 1865.] Bakemav v. Talbot. 27&
Bakeman v. Talbot.
rn New Tokk, MS^l
Owam ov Law Bu»umii» with Bight ov Wat s Boosb lo
BiAflovABUi FACiLinai^ dBtarmmad by tiie nil iiiimitinpM of IIm
for its eo joynMnt by tbe one entitled to the right
Action to establish a right of way, and to enjoin the ooo*
tinnanoe of certain obstructions, and compel their removaL
The premises concerned, known as lot No. 179, were formerly
owned by one De Groot, who died intestate in 1838. Parti*
tion was made by suit in chancery to his heirs; and of the
lots into which the tract was divided by the commissioners,
lot No. 12, on the extreme east, finally came into the hands of
tbe plaintiff, and lots 9, 10, and 11, adjoining on the west,,
were acquired by the defendant The lots were bounded on
tbe north by the &rm of one Fellows, and on the west by a
public highway. In the report of the commissioners, which
was confirmed by the court, there was a provision that ''the
right of way or passage is reserved to the said heirs respect*
ively, and to their heirs and assigns, fiom the highway, near
the west line of said lot Na 179, and immediately adjoin*
ing the north line of the fEUin aforesaid, and extending east
along the north line of said &rm to the extreme east comer
of the wood-lots aforesaid, to enable them to pass to and fiom
their respective wood-lots for the purpose of obtaining wood
and timber therefrom, or for any other purpose." The lots
were wood-lots, but the defendant's had been cleared and were
under cultivation. The defendant had built a fence between
each of the lots, each fence running to the northerly line.
Two of the fences were built with stakes, with rails to slip be-
tween them like bars, and the other was of rails, and had a
" slip gate " at the northerly end, so that the rails could be
taken out and turned around. The plaintiff claimed that the
defendant was bound to keep open a narrow road or lane
across the north end of the land, or at least place swinging
gates in his fences. The courtf sitting without a jury, gavo
judgment for the defendant The plaintiff appealed.
A. J. Parker^ tor the appellant
L. H. and F. Hiaeoekf for the respondent
By Court, Dsnio, C. J. No question is made but that the
plaintiff is entitled to a right of way or passage across the
north end of the defendant's land. The extent of that rights
276 Bakehan v. Talbot. [New York|
and the duty of the respective owners towards each other, is
to be determined by the language of the reservation and the
circumstances of the case. The plaintiff insists, in substance,
that the defendant was bound to keep open a narrow road or
lane across the north end of hia land, or if he will not do thiSy
that he should, at least, insert swinging gates in his fences,
which might be opened and shut with ease whenever the
plaintiff had occasion to pass. What the defendant did, as I
understand the testimony and the judge's conclusions, was to
subdivide his land in the manner which he found convenient
for its occupation, running the fences quite to his northerly
line, making arrangements, however, at the place indicated
for passage, by which the bars or rails could be readily re-
moved and conveniently replaced, when the plaintiff should
have occasion to go through. This would, no doubt, be some-
what less beneficial to the plaintiff than either a clear space
like a common road, or a series of gates which could be opened
and shut like doors. But it would be much less onerous to
the defendant, who, upon the plaintiff's position, would have
to forego the use of a considerable strip of land, and in addi-
tion, to build a lateral fence across the whole north end of the
premises, or to incur considerable expense in erecting gates.
I am of opinion that the defendant's position presents the
more reasonable view of the case. The main object of the
reservation in the commissioner's report was to enable those of
the proprietors who should become the owners of the lots most
remote from the highway to go upon and pass over the land
of the others, situated between them and the highway, with-
out committing a trespass, and to define the direction of such
passage. We are not to intend that it ^eas designed to make
the burden unnecessarily onerous. The circumstance that the
land was wholly in forest, and that the primary purpose in-
dicated was the carrying of wood and timber, do not suggest
the necessity of a thoroughfare, like a highway, or an unim-
peded private way. If the passage was made as convenient as
the mode of access which a farmer usually provides for him*
self to get to and from his woodland, it seems to me that the
purposes of the reservation wcHild be confirmed.
De Groot formerly possessed the whole farm. It was about
to be subdivided and assigned in severalty to different owners.
It wouM be improper that those to whom back lots were as-
signed should be precluded from getting to the highway,
except by committing a trespass, or by claiming a way by
Haroh, 1865.] Bakeuan v. Talbot. S77
neoessity, — a ri^t but little known and not of conTenient ap-
plication. Moreover, the exigencies of the case did not con-
template a constant use of the passage, bnt only such an
occasional use as the resort to wood land would require, and
such as the plaintiff has since exercised. There is no reaeon
to believe that if the plaintiff, besides owning the back wood-
lot, had also been the proprietor of the intervening cleared
land, he would have found it necessary, or thought it expedi*
ent) to have fenced out a lane, or have erected these gates for
his use, in passing to and from his timber land, and if h»
would not have done so, it is unreasonable to require it of tlm
defendant.
The defendant certainly has no right to preclude the plain*
tiff from availing himself of the right of passage, or to render
the exercise of that right unusually or unreasonably difficull
or burdensome. I think he is not shown to have done so. It
must be kept in mind that the plaintiff ^s lot is still woodland.
It may remain so for many years; but it may be cleared up
and cultivated, and have buildings erected on it, and be ap^
pHed to such uses as to require constant and frequent passage
between it and the highway. There is nothing inconsistent in
holding that the present arrangements are suitable and su£B*
dent, under existing circumstances; and after these circum-
stances have changed, and the question shall arise as to what
shall then be proper to determine that a passage perpetually
open, or a system of gates better adapted to such increased
use than the present fences and bars, shall be required of the
defendant. It would not be right, at this time, to oblige the
defendant to furnish facilities for a state of affairs which may
never arise, or which may not arise until some remote period.
The doctrine that the facilities for passage, where a private
right of way exists, are to be regulated by the nature of the
case and the circumstances of the time and place, is very well
settled by authority: HemphiU v. City of Boston^ 8 Cush. 195-
[64 Am. Dec. 749]; Cowling v. Higginsoriy 4 Mees. & W. 245.
The last case determines, in effect, that the extent of privilege
created by the dedication of a private right of passage depends
upon the circumstances, and raises a question for the determi-
nation of a jury. If, therefore, in the present case, I felt less
confidence in the conclusion I have stated than I do, I should
hold the question had been settled by the judge, sitting in the
place of a jury, in a manner that we could not disturb. The
judgment should be affirmed.
S78 Bakxman v. Talbot. [New York^
Bbowv, J. This action is brought to remove certain obstruo-
lions from a private way claimed by the plaintiff over certain
lands of the defendant, and for an injunction. The case was
heard before Mr. Justice Pratt without a jury, who ordered
judgment against the plaintiff, which was i^rmed at the
general term.
Both the plaintiff and the defendant derive their title to the
lands referred to in the pleadings and proofs from James De
Groot, deceased, who died seised of them. Some time about
the year 1839, upon a bill filed in the late court of chancery
for a partition, certain commissioners were appointed to make
partition, who divided the lands into lots numbered from No.
1 to No. 13 inclusive. The division lines of the lots run north
and south, and are bounded on the north by the lands of Ches-
ter Fellows. In the decree of partition there is the right of
way claimed by the plaintiff in the following words: '^ The
right of way or passage is reserved to the said heirs respect-
ively, and to their heirs and assigns, from the highway near
the west line of lot No. 179 (being the premises partitioned),
and immediately adjoining the north line of the farm afore-
said, and extending east along the north line of said farm, to
the extreme northeast comer of the wood-lots aforesaid, to
enable them to pass to and from their respective wood-lots for
the purpose of obtaining wood and timber therefrom, or for
any other purpose." The defendant is the owner of lots Nos.
9, 10, and 11, and the plaintiff is the owner of lot No. 12, in
fee by title derived fix>m the heirs of James De Groot, and it
has been necessary for the plaintiff occasionally to pass along
and upon the way reserved to and from his lot No. 12, over
lots Nos. 9, 10, and 11. There are three fences put up by the
defendant across the way. One between lots Nos. 11 and 12,
another between Nos. 10 and 11, and another between lots
Nos. 9 and 10. In two of the fences he put stakes with rails
to slip between them like bars, so as to bo easily removed, and
in the other he put what is called a slip-gap, where the rails
could be taken out and turned round, so that the plaintiff
could pass and repass. These were the obstructions com-
plained of. The plaintiff used the way at considerable inter-
vals of time to get his wood, and the lots of the defendant
were under cultivation. The claim of the plaintiff proceeds
upon the theory that he is entitled to an open road, free from
fences, with gates, bars, and openings, which can be opened
March, 1866.J Baseman v. Talbot. 279
and clofied at pleasure, and this is the only question presented
by the appeal.
The easement is a right of passage, without defining the
manner of its enjoyment, with or without bars or gates, over
the agricultural lands of the defendant. Nothing passes as
an incident to such a grant but what is requisite to its fair
enjoyment. That must be the reasonable and usual enjoy-
ment and user of such a privilege. The fee of the land still
remains in the grantor of such a privilege, and he may use his
lands and appropriate them to such purposes as he pleases,
consistent with the grantee's right of passage to and fro. The
plaintiff claims that the lands of the defendant shall be thrown
open, without fences or protection, or that he shall be required
to erect a fence upon both sides of the way, throughout its en-
tire length, leaving the entrance open at the western end. The
first of these propositions would, in effect, deprive the defend-
ant of the use of his lands for cultivation, while the second
would entail upon him an amount of expense in the making
and maintaining the fences quite as damaging in its conse-
quences.
The grantee of a private way is bound to keep it in repair,
and cannot deviate from it and go upon another part of the
grantor's lands when it becomes impassable by floods or
otherwise. And this shows that he must do whatever may be
necessary to the reasonable and proper enjoyment of the right.
The judgment of the supreme court should be affirmed.
Judgment affirmed.
Uas OF Private Wats. — The use to which the owner of a private way
may subject it depends upon the instrament by which it is granted or reserved,
or apon its common and ordinary enjoyment, where it is claimed by prescrip-
tion. If it be granted or reserved in general terms, it may be used in any
manner and for any purpose reasonably necessary: Senhouae v. Christian, 1
Term Bep. 560, 569; Dand v. Kingacote, 6 Mees. & W. 174; Watts v. Kelwn,
L R. 6 Ch. 166, note; 8. C, 40 L. J. Ch. 126; 24 L. T. 209; 19 Week. Bep.
338; AbboU v. Butler, 59 K. H. 317. The grant of a way in general terms
gives the grantee the free use of the whole and every part of the way: South
Metropolitan Cemetery Co, v. Eden, 16 Ooul B. 42; Cousens v. Hose, L. R. 12
Eq. 366; S. C., 24 L. T. 820; 19 Week. Rep. 792. And a right of way for
all pnrposes is not restricted to one purpose because the owner thereof has
had occasion for a long series of years to use it for that purpose only: Holt v.
Sargent, 15 Gray, 97. So, "where a right of way is proved to exist by
adverse use and enjoyment only, the common and ordinary use which estab*
Uahes the right also limits and qualifies it *': Richardtton v. Pond, 15 Id. 387>
but '* when a right of way exists by adverse use and enjoyment only, although
280 Baksman v. Talbot. [New York,
endenoe of the azerciaa of the right for a siiigle parpoae inll not prove a right
cl way for other parposes, covering every pmpoee required hy tiie dominani
estate in its then condition, is evidence from which may he inferred a right
to nse the way for all purposes which may be reasonably required for the nee
of that estate while substantially in the same condition ": Parka v. Biahop,
130 Mass. 340. What is a reasonable use of the way, where the purposes are
not defined, is a question for the jury: ffawkina v. CarUnea, 3 Hurl, i K. 914;
8. C, 27 L. J. Ex. 44; Wmama v. Jamea, L. E. 2 G. P. 677; a C, 36 L. J.
G. P. 256; 16 L. T. 664; 15 Week. Rep. 928.
The grant of a way ''across " a lot of land does not give a right to enter
upon the parcel on one side, and after going partly across, to come out on the
same side: Comaioek v. Van Deuaen, 5 Pick. 163; and where one had a right
of way '* in, through, over, and along ** a certain strip of land from A to B^
it was held that he had not thereby a right to away across the land: Senhomae
▼. Cfhriatian, I Term Bep. 560. A way extd termini imports a right of passing
in a particular line. Therefore a right of way cannot be established by pr^
scription over the plaintiff's land in all directions where most convenient ta
the defendant and least prejudicial to the plaintiff: Joneay. Perckfol, 5 Pick.
486; and where one drew timber from his own land upon the land of another*
and turned it around, which could not be done upon his own land, it was held
that he was not justified under a right of way: Comatock v. Van Deuaen, aupra,
A ** right of way of an alley," included in a deed, implies ex vi UrmhU a pas-
sage leading away from the land conveyed: MeConneU v. Raiklwn, 46 Mich.
903. "An intended way" should be understood to mean a "convenient**
way: Harding ▼. WUaon, 2 Bam. & G. 96; and where the owner of lands, in
laying off lots, grants the use of an alley "in common," the grant is of the
use of the alley to its whole extent as it then existed: Btanp v. Banner, 37
Md. 621; and a grant of a right of way "in, over, and through said forty-
foot street " gives a right of way in the entire space of that width: Tudor lea
Co. V. Cunningham, 8 Allen, 139; but where the width of a way, granted or
reeerved, is not fixed, the owner is entitled to a convenient way for the pur-
poses mentioned, or for general purposes if the use be not restricted: AtHna
V. Bordman, 2 Met. 457; S. G., 37 Am. Dec. 100; Joknaon v. GnmcuU, 2
Gush. 153. A reservation of a right of way over the land granted " to my
land as usually occupied," refers to the land to which the right of way is
attached, rather than to the way itself: Sargent v. Hubbard, 102 Mass. 380.
A right of way reserved by a grantor " for the purpose of carting wood, etc.,**
is not enlarged by the abbreviation " etc.": Slyera v. 2>ttitii, 49 Gonn. 71.
The following cases also illustrate the proposition that the use of a way is
to be confined strictiy to purposes for which it was granted, reserved, or pre-
scribed. A way for agricultural purposes is not a general right of way, but
is of a limited and qualified character: Washburn on Ekisements, 4th ed., *187;
therefore it was held not to include a right to transport lime from a quarry:
Jackaon v. Staoey, Holt, 455; nor a right to transport coals over such way:
OouHmg v. Higgmeon, 4 Mees. & W. 245; nor does it give a right of way for
mineral purposes generally: Bradburn v. Morria, L. B^ 3 Gh. D. 812. Evidence
of a prescriptive right of way for all manner of carriages does not neoessarily
prove a right of way for all manner of cattie: Ballard v. Dyaon, 1 Taunt. 279;
nor will a right to cart timber sustain a plea of a general right of way on f oot^
and with horses, carts, wagons, and other carriages: Higham v. BabeU, 6
Bing. N. G. 622; nor will a right to draw water from a river sustain a plea of
a right to draw goods and water: Kmgkt ▼. Woore, 3 Id. 3. A grant of waj
Maieh, 1865.] Bakeman v. Talbot. 281
en foat^ and for hanea, osen, cattle^ «nd sheep, does not anthorue the grantee
t» cury mannre over ^e way in a wheelbarrow: Brunton ▼. IlaU, 1 Q. B.
792; S. 0., 1 Gale & D. 207; 6 Jnr. 340; and where a grantor reserves a
"wagon or cart road," he has not the right to lay down a railroad or tram-
wsy: Bidder t. K<frth Staffordakire B'p^ L. R. 4 Q. B. Dit. 412; S. C,
4SL. J. Q.K248; 40L.T. 801; 27 Week. Bep. 640. A right of wny to re-
pair a race and dam is confined to that poipoee: MeTcmsk ▼. Carroll, 7 Md.
962; S. C, 61 Am. Deo. 353. A right of way from a highway to ihb
grantee's mill does not give the grantee the right to pile Inmber on the sides
flf ^bm way: Kaier ▼. Beaman^ 49 Me. 207. But a plea of a foot-way is sup-
ported by proof of a carriage-way, as a oaniage-way indndes a foot-way:
XHebms ▼. Siepbms, 7 Car. & P. 57a
A fi^t of way from one place to another will not Jnstify the nse of H te
pees beyond the latter place: HcweU ▼. King, 1 Mod. 190; Lawion t. Ward, 1
Ld. Baym. 75; ColcheaUr ▼. Bobertt, 4 Mees. & W. 774; Kirkkcun v. Sharp, 1
Whart. 323; S. C, 29 Am. Dee. 57; nor can a right of way to one piece d
land be used as a mode of access to another: Skroderv, Bretmeman, 23 Pa. BL
Sifi, 350; Ba/ard v. MarquU, 7 Lans. 249; Dawenpcrt ▼. Lamatm, 21 Pick. 72;
ok; as was said in Frtaeh ▼. Maantin, 24 K. H. 440, a a, 57 Am. Dee. 294:
^ The ■grantee of a way is limited to use his way for the pnrposes and in the
naaner specified in his grant. He cannot go ont of the limits of his way, nor
«Be it to go to any other place for any other pnipese than that specified, if
the nse in this respect is restricted." H the eondition and character of the
dominant estate be substantially altered, a right of way cannot be used for
new porpoees required by the altered condition of the property, and impos-
ing a greater burden upon the servient estate: Parks v. Bishop, 120 Mass.
340, 341; Atioaier v. Bodfish, 11 Gray, 150; Wimbledon etc Commons Conserves
tors V. Dixon, L. R. 1 Ch. D. 362; 8. C, 45 L. J. Gh. 353; 35 L. T. 679; 24
Week. Hep. 466; Benmng v. Burnet, 8 Ex. 187; 8. C, 22 L. J. Ex. 79;
AWm V. Oomme, 11 Ad. & £. 759.
The owner of a right of way may repair it, or put it into a condition to be
used: Oerrard v. Cooke, 2 Boa. & P. N. E. 109; Appleton v. FuUerton, 1 Gray,
186^ 194; Brown v. Stone, 10 Id. 61; a C., 69 Am. Dec. 303; MeMUUn v.
Cronin, 57 How. Pr. 53; Lyman v. Arnold, 5 Mason, 195, 198, per Story, J.;
and indeed, except there be an agreement to the contrary, he is bound to
keep it in repair: Holmes v. Seely, 19 Wend. 507; WiUiams v. Safford, 7 Barb.
309, 311; Jones v. Percivai, 5 Pick. 485, 487. Therefore, he has no right to
go outside of the limits of a defined and designated private way, in passing
from one point to another, although the way is impassable by reason of its
being overflowed or out of repair: Taylor v. Whitehead, 2 Doug. 745; BuUard
V. Bbrrison, 4 Maule & a 387; MUler v. Bristol, 12 Pick. 550, 553; Holmes v.
Seely, supm; WHUams v. Safford, stspra; Capers v. McKee, 1 Strob. 164, 168;
a^^h^gh he may deviate over the adjacent lands of the land-owner, doiag no
unnecessary damage thereby, if the land-owner obstructs the way: SeWy v.
NettU/old, L. R. 9 Gh. Ill; 8. G., 43 L. J. Gh. 359; 29 L. T. 661; 22 Week.
Bep. 142; Famwn v. PlaU, 8 Pick. 339; Leonard v. Leonard, 2 Alien, 543;
Haley v. Coleord, 69 N. H. 7; S. G., 47 Am. Bep. 176.
An owner whose land is burdened with a right of way has all the rights
and benefits of the soil consistent with the easement: Atkins v. Bordman, 2
Met 457; a G., 37 Am. Dec. 100; Maxwell v. McAtee, 9 K Mon. 20; a G.,
48 Am. Dec. 409; he may, therefore, cover such way with a building, if be
leave a space so high, wide, and light that the way continues substantially as
282 Whits v. Nelus. [New York,
cooTenient ai Mom: AMm t. Bordman, wpra; OmrUk t. Shattmdt, IS
Ubm, 23S. The gnat of a right of wmy m gemenl tenm does not neoenarilj
imply that the grantor may not erect gatea at the termini of the way in en-
tering and leaving his land: Maxwdlr. MeAtee, 9 B. Hon. 20; a O., 48 Am.
Dec. 409; Hcmpe9 ▼. AVdermm^ 22 Iowa, 100; Avumdmm ▼. Severmm, 37 Id.
002; Baker t. FriA, 46 Md. 337; S. C, 24 Am. Bep. 600; Bean ▼. Cokmam^
44 N. H. 639. The facilities for passage, where a private ri^t of way exists^
are to be regulated by the nature of the case and the ciroomstanoes of tima
and place: Amondmrn t. Soformm, ntpra; Baker t. Frid:, eupra; ffumm ▼.
Timttg, 4 Lsns. 03» all approving the principal case. '* Unless an open way
is expressly granted, the owner of the land will be at liberty to ose conve-
nient gates or bars, where they are required for the proper use and protection
of his fields, unless the nature and objects of the way granted are such as to
indicate a way not to be subject to gates and ban ": Oarhnd v. Fufimr, 47
K. H. 301. The owner of land, over which a right of way " as now laid out "
has been granted, has no right, in the absence of evidence of a contrary
usage, to erect a gate at the entrance of the way, no gate being erected at
the time of the conveyance: Welsh r. WHeooB, 101 Mass. 162; and where ooe
purchased a right of way, along the west line of which was a fence, dividing
the lands of the grantor from those of an adjoining proprietor, and by the
terms of the contract the grantee was required to erect and maintain a fanoe
along the east linaol the way, which was done^ the grantee is entitled to
have the way kept open: Dewre v. i^Ut, 02 Iow% 606.
Whitb V. Nbllicl
(n Nbw Tobx, 40S.]
Action iob Ssduotioh d not Maintaxnabli upon Bblaxioh ov Fabbnt
AND Child, but solely upon that of master and servantw
Action vob Sxduction gannot bb Maintainbd xtfon PBOor or SxDiTonoN
Mebelt; but the plaintiff must show that a direct injury to his rights
as master resulted therefrom.
Parbnt mat Maintain Acfion fob Sbduohon ov his Minob Dauohtbb,
on proof that a venereal disease was communicated to her by the aot|
rendering her sick and unable to work.
Action for the sedvction of the plaintiff's minor daughter.
From the testimony of the daughter, it appeared that she was
seduced by the defendant, while living at the defendant's
house, and before she left his house, to be gone several days,
she felt symptoms of a venereal disease. During her absence
she had sexual intercourse with two other persons. On her
return to the defendant's house, she was sick with gonorrhea
for several weeks, and unable to work. A physician who at-
tended her testified that she was sick with the gonorrhea.
The defendant's counsel asked the court to instruct the jury
March, 1865.] White v. Nbllis. 283
thai the loss of servioe from a disorder contracted by the
illicit intercourse was not sufficient on which to maintain the
action; and that there was not sufficient proof to show that
the girl's disease was taken from the defendant; but the court
refused so to charge. The plaintiff had a verdict for five hun-
dred dollars, and the defendant appealed.
Sedgwicky Andrews^ and Kennedy ^ for the appellant.
O. Whitney^ for the respondent.
By Court, Davis, J. The plaintiff was bound affirmatively
to establish that the disease was communicated to his daughter
by the defendant. To do this, it would not be sufficient merely
to show that defendant and two other persons had had sexual
intercourse with her, at about the same time, and within a few
days prior to the development of the disease. That proof
would make a case of conjecture only, that ought not to be
submitted to a jury, for the exercise of their ingenuity in
guessing at possibilities. But there was some slight evidence
from the girl tending to show that the symptoms of the
disease were manifested before she had the connection with
the other persons; and though it would not have been unsatis-
&ctory to me if the court had nonsuited the plaintiff, on the
ground suggested by the request, yet it was not error to de-
dine to instruct the jury as requested by defendant's counsel.
To have adopted the form of his request would not have been
a correct presentation of the whole of the girl's evidence; and
that is a sufficient answer to the exception. The court was
not asked to interfere with the case, in any other manner,
iqpon this ground; and we are not at liberty to disturb the
v^dict, as against evidence, wba^^ver may be our views of its
abstract justice.
The only remaining question for consideration is, whether
proof that a disease was communicated by the act of seduc-
tion, by which the daughter was rendered unable to work, is
sufficient to maintain the action. This action is not maintain-
able upon the relation of parent and child, but solely upon
that of master and servant: Bartley v. Richtmyery 4 N. Y. 38
[53 Am. Dec. 338], and cases there cited. The latter rela-
tion existed in this case, because the debauched girl was the
minor child of the plaintiff, and although living at the time
of the seduction with the defendant, the father might have
oommanded her services at pleasure: Martin v. Payne^ 9
284 Whttb v. Nbllu. [New York,
Johns. 887 [6 Am. Deo. 288]; Clarke v. Fiteh, 2 Wend. 459;
IngersM v. Janes^ 6 Barb. 661; Hamketh v. Barty 8 Serg. & R.
36 [11 Am. Dee. 568]; MvlvOuM v. MiUward, 11 N. Y. 343;
£art{€2^ v. Bichtmyery 4 Id. 88 [53 Am. Deo. 338].
It is not snffioient to sustain the action to prove the seduc-
tion merely. That is the wrongful act from which it must
appear that a direct injury to the relative rights of the mas-
ter has followed. The right of the master as recognized by
the law is to have the services of the servant undisturbed by
the wrongful act of another. Whenever the wrongful act|
by immediate and direct consequence, deprives the master oif
the service of hiB servant, or injuriously ejects his legal right
to such service, the law gives a remedy. In cases of de*
bauchery, the ordinary consequences that affect the master
are the pregnancy and lying-in of the servant, during which
she is unable to render him service. Hence the precedents
of pleadings in this form of action have, perhaps, invariably
alleged a loss of service through those consequences. But it
by no means follows that there is no remedy where the loss of
service is the direct effect of the wrongful act, although pro-
duced by some other consequence. All that the law can require
is damnum et injuria; for these constitute, when directly con-
nected, the proper and complete elements of an action on the
case: 3 Stephens's N. P. 2353. And wherever they combine
as an immediate cause and effect, the law cannot deny a
remedy without a departure from principle.
It is plain that a seducer who imparts to his victim a vile
contagious disease does an act as abhorrent to morality, and
more so to nature, than one who gets her with child. It is
less likely, perhaps, to bring her to public shame, but only
because less likely to be disclosed; and it may be doubted
whether the feelings of relatives rightly appreciative of vir-
tue would be more lacerated by the one consequenoe than
the other. But these suggestions are aside from the real
question, which is, whether the law refuses a remedy to a
master who has been deprived of the labor of his servant by
a disease communicated by the wrong which consummated
her seduction.
No case quite like the present has been cited in which the
remedy has been denied, and none has been found where the
pAcise question was involved. In ManveU v. 2%o?iwon, 2 Car.
A P. 303, the plaintiff sued for the seduction of a servant, who
March, 1865.] White v. Nellis. 285
was his niece; the evidence of Ices was, that she was in a state
of very great agitation, and continued so for some time, and
that she received medical attendance, and was obliged to be
watched, lest she shoald do herself some inj\iry; the plaintiff
was allowed to recover. This was a niri prius case, and its
authority is shaken by the criticism of Wright, J., in Knight
V. WUeoXy 14 N. Y. 413; but the last-named case did not in-
volve the point of this case, nor the question in ManveU v.
Thomsouy supray so far as that affects the point now under con-
sideration. The question in Knight v. WUeoXy supra^ was,
whether loss of service produced by illness consequent upon a
discovery of the seduction several months after it occurred was
such a direct result of the wrongful act as would sustain the
action. This court held that the loss of service in that case did
not flow directly from the seduction, but from causes too re-
mote and indirect to be the basis of the action. That principle
cannot govern here, for nothing is clearer than that the loss
of service in this case was the direct and immediate conse-
quence of the disease imparted by the wrongful act
In Boyle v. Brandon, 13 Mees. & W. 738, the action was for
seduction where there was no pregnancy. The girl had lived,
for a considerable period, in criminal intimacy with the de-
fendant; he abandoned her, and she fell sick in consequence
of his desertion. The court held that the loss of service did
not result from the wrong, but from its cessation, and therefore
the action would not lie; but it was not intimated that the ac-
ti(m could not be sustained without proof of pregnancy. In
note 30 to 2 Chitty's Blackstone, p. 143, it is said: "The action
would probably be sustained upon the evidence of a consump-
tion or any other disorder contracted by the daughter in con-
sequence of her seduction"; but the remark is sustained by
no authority other than the good sense of its author.
But as already suggested, in the absence of all authority,
this action may stand upon sound principle. It is maintain-
able because a wrongful act has caused a direct injury to a
lawful right. In such case, the right of the master to a rem-
edy £6r an injury to his enjoyment of the services of his ser-
vant is equally clear, whetW it be produced by beating and
wounding the servant, or enticing him from employment, or
forcibly abducting him, or wrongfully debauching and impreg-
nating with child or with disease. Nor, in my judgment, does
the remedy depend upon the sex of the servant. Tbe <lebased
woman who lures to her vile embrace an innocent boy, anl
286 Whits v. Nellis. [New York,
infects him with loathsome diseafle^ is equally liable to this ac-
tion, if an injury to his master's right to service follow &om
her crime. No want of precedent would shield her fiom the
consequences of iniquity when injurious to the rights of parties
not participating in her guilt.
The £Etct that a different rule as to damages prevails in ac-
tions for seduction than that applied to other injuries to.rela-
tive rights which result in loss of service has, in my opinion,
no bearing upon the question. We have now to determine the
abstract right to maintain any action at all; and that is some
thing quite independent of the question what damages may
be recovered if the action be allowed. If the action can be
maintained, it is not perceived that any rule governing the
question of damages has been violated. I think the judgment
below must be affirmed.
Wbight, J. The evidence justified the jury in finding, and
they must have found, that the plaintiff's minor daughter,
whilst temporarily in the service of the defendant, was de-
bauched by him, and that from the illicit connection, the
daughter contracted a vile disease, on account of which the
plaintiff lost her services and incurred medical expenses for
her cure. The only question that such a case can possibly
present is, whether loss of service from a disorder contracted
by the illicit intercourse is sufficient ground to sustain the
action; or, to state the proposition a little differentiy, as the
loss of service was the direct result of the seduction, whether
an action for seduction can be sustained where there is no
pregnancy.
I think it is not essential to the maintenance of the action
that the illicit intercourse Should be followed by pregnancy.
The foundation of the action is the loss of service resulting to
the fotber or master by the seduction of his servant; and
when such loss of service has been actually sustained as the
direct effect of the seduction, it is enough. It certainly cannot
be important to the right of action whether the fother loses
the services of his child by illness arising fit>m pr^nancy or
firom a vile disorder contracted by connection with her seducer.
The judgment should be affirmed.
Judgment affirmed.
Pabbmt's Bight to Sus >ob Ssductioh or lUvoaxsi,
uroM RiLATioii ov Masisb Am Skkvaxt: 8m aoto to W§amr t. Boektrt^
44 Am. Deo. 166; Aiycf ▼. B^d, 44lL7¥h Vomd t. Ook, 47 Id. 136; Jfo^
ICarchy 1865.] St. John v. Bobsbts. 287
Daaki ▼. MwanU, 47 Id. 831; Bartle^ t. JBdtojiyf» 08 Id. 838^ aad Boto;
8ie9emiom t. Btibup, 71 Id. 882. The aetkn for — dnefcicn ii noi naintam-
•bla upon tiia nlnitioii of pwoit tnd ehfld, but upon thftt of mMter and Mr-
Vint: Lampmam ▼. JfoRMioiid^ 8 Thomp. ft 0. 884; Lowiy ▼. OrookBp 62 Wia.
S17; and mo JCmm^tt. iTeMr Tarhtie. i?. J?., 86 Him, 187. It is ilioreforo
OMod upon a ksM of oomoo, and doM noi di^pond on tho asxnal oonnootinn
alone: BUehmmy. Whitney, 9 Id. 613; (Tray ▼. Dmrkmd, 61 N. T. 429. B«t
a fathor oaa maintain an actum for the seduction of a minor dangbter» wlio
was liring at tiia time away from home^ lie baring a right to ooommnd her
ssTicaa: Lamrp ▼. OrooiKf mtpra; Lampmam ▼. Hammtrndt Mpro. And proof
of pregnaacj or sexoal disease ie noi required in all casM in order to main-
tain tiia aetioii: iMw<* ▼• ^Uy» I^ liM«- IM- The prindpal oaM is dtsd
to ilie fongomg.
St. John t;. Bobbbtb.
181 HSw ToaXt 4CLJ
Hon IBB Hbioffbd ibov DBHruo
Llabiutt twbrbow, iHien^ after it has been protested for non-paTmsnt
and their liability fixed by noiice^ they eeU the same, with the evidsnoe
of such liability attaehedt althoogh after such sals there had been no de-
mand of payment of the maker and notice of non-payment giTsn to the
AcnoN against the indorsen of a ptowimoxj note. The
bets are stated in the opinion.
O. B. Bdbnapy for the appellant.
Lapham and Andrewa^ and 5. £ay, in pro. per.^ tat the re*
■pondentg.
By Court, Dayies, J. Thig action is brought against the
defendants as indorsers of a promissory note, made by one
Waterbuiy, to the order of the defendant Roberts. There is
no dispute about the fiEU^ts of the case, and they are as follows:
Before the note arrived at maturity, it was indorsed by the
defendants, and deposited in bank in New York, and on
maturity, payment was demanded of the maker, and being re-
fused, the same was protested, and the indorsers duly charged.
The defendants placed the note, with their indorsements
thereon, and the protest thereof annexed, in the hands of an
auctioneer for sale at auction, who sold the same to the plainti£f
for the sum of five hundred dollars; and he paid the auctioneer
that sum, and received from him the note with the indorse-
ments of the defendants thereon, and the protest of the note
attached. Upon the trial, a verdict was taken for the plaintiff
8t. John t;. Roberts. [New Yca^,
for the amonnt of the note and interest, subject to the opinion
of the superior court at general term, which court gave judg«
ment for the defendants, upon the ground that there had been
no demand of payment of the note of the maker, and notioe
thereof to the indorsers, after the transfer and delivery of the
note to the plaintiff.
The superior court treated the case as if there had been a
new contract, by the defendants, of indorsement^ at the time
of the transfer and delivery of the note to the plaintiff. It is
well settled that when a note once due is indorsed and trans-
ferred, the indorser cannot be made liable upon his contract
of indorsement unless there has been, subsequent to such in-
dorsement and transfer, a demand of payment of the maker,
and notice to the indorser: Leavitt v. Putnam^ 8 N. Y. 494 [53
Am. Dec. 822].
In this case, there was no new contract of indorsement on
the transfer and delivery of this note to the present plaintiff.
The indorsers themselves put this note upon the market, after
they had been legally and duly charged thereon, and made
liable as indorsers thereon, with the evidence of such liability
attached. Such act of theirs was a representation of their lia*
bility on the note, and they are now estopped, in good faith
and sound morals, from denying such liability. The plaintiff
purchased the note as thus presented, and they have received
the amount of the purchase-money, and should not be per-
mitted to deny their liability. But we are not without au-
thority, in a case so nearly analogous that it may be regarded
ae quite decisive. The rule thus announced has been regarded
as the law of this state for more than forty yeazs, and upon
questions of this character should not be disturbed, except for
grave and controlling considerations.
In WiUiams v. Matthews^ 8 Cow. 252, the defendant was sued
by the indorsee, as the indorser of a promissory note, made
payable to his order, and indorsed by him, dated the 9th of
April, 1815, payable on the first day of November then next
It appeared that a previous suit had been commenced on the
note, which was discontinued, and in September, 1817, the
note became the property of the plaintiff, who had no inters^
in it before that time, and that it was then sold to him. No
notice of demand and refusal was given to the indorser after
the transfer and delivery thereof to the plaintifil The plaintiff
was nonsuited, and brought his writ of error, and the promi-
nent point relied on by the defendant was, that the note coold
Mai«h, 18Dp.] St. John v. Bobebts 4S8
not be negotiated acfter the indonser was charged. To thie it
wae replied that there was no legal objeetion to it if it in fiEict
remained unpaid at the time of the transfer; that the only ob-
jection to the ttansfier of a note after it becomes due is, that
it subjects the holder to all the equities in favor of the preced-
ing parties. On the part of the defendant, it was contended
that the transfer of dishonored paper creates a new contract,
and that the law, in all cases, to charge the indofter, required
the holder, or his agent, to make a demand after the transfer.
That a demand by a previous holder could not inure to the
benefit of a subsequent holder, and it was conceded that in
that case the necessity and Uie right of a demand by the
plaintiff had ceased. Judge Woodworth, in the opinion of the
court, says that after the note became due, it came back into
the hands cf one Williams, which did not imply a payment
and taking up of the note, and he afterwards sold it to the
plaintiff. That there was no legal objection to the validity of
the transfer of a note after due, provided it remain unpaid, by
any of the parties, whether the transfer is made by indorse-
ment or mere delivery. The judgment was reversed.
In the present case, the plaintiff dealt with Nicolay, the
auctioneer, the presumptive holder of the note, and the plain-
tiff had no actual notice, nor any notice to put him on inquiry
as to who was the holder or seller of the note. He had a right
to awsnme that all the parties to the note were bound^for its
payment, and in this faith he made the purchase of it. I do
not see upon what principle the defendants should be absolved
£rom liability, and am therefore of opinion that the judgment
should be reversed, and that the plaintiff should have judg-
ment ux>on the verdict.
We place our judgment in this case upon the ground that
the defendants are estopped by their acts from contraverting
their liability upon the note as indorsers thereof. The other
point discussed is not passed upon or disix>Bed of, we regarding
the other as controlling and conclusive.
Campbell, J. A note of one Waterbury for $595.60, payable
to the order of defendant Roberts, and by him indorsed, and
also indorsed by defendant Lay, was deposited in bank by
Lay for collection. Not being paid at maturity, it was duly
protested, and notice of protest given to the defendants. After
protest. Lay, with Roberts's check, took up the note, and then
Lay, by Roberts's direction, through an auctioneer, sold the
lAic Daa Vol. LXXXvm— 19
290 St. John v. Roberts. [New York,
note at public auction, at the Merchants' Exchange in the
city of New York, for or on account of whom it might concern.
The names of the defendants or indorsers were not erased, nor
the indorsement in any way restricted or qualified, and the
notarial protest was attached to the note. The plaintiff be-
came the purchaser, paying therefor the sum of five hundred
dollars. The superior court of the city of New York rendered
judgment for the defendants.
When this note was sold at auction by and for the benefit
of Roberts, through the agency of Lay, though overdue and
dishonored, it was still negotiable, and its negotiation worked
wrong to no parties: not to the maker, who was confessedly
bound to pay it; not to the indorsers, for they both took an
active part in the sale: Havens v. Huntington^ 1 Cow. 387.
The sale was not adverse and in hostility to the indorsers, but
by them. They gave no notice to the plaintiff, who was the
purchaser, nor was notice given to any one at the sale, that
there were any equities in favor of the indorsers. Nor was it
stated for whom the sale was made. For aught that appeared,
the seller was the owner and holder of the note, claiming it as
well against the indorsers as the maker. Indeed, it appearing
from the notarial papers that the note had been protested, and
the names of the indorsers not being erased, such would be
the presumption.
By the protest and notice, the contract of the indorsers,
which was previously contingent, had become fixed, and upon
the paper as it appeared were as much liable to pay as the
maker. The indorsements were made before the maturity of
the note, and no new protest and notice were necessary. The
protest already made and notice given at the time of the ma-
turity of the note inured to the benefit of the plaintiff as a
subsequent holder: Williams v. Matthews^ 3 Cow. 252. It was
doubtless an oversight on the part of the defendants that they
did not erase their names or restrict their indorsement, so as
simply to pass title to the note. But the plaintiff was a pur-
chaser for a large consideration, and in good faith, and I think
upon the undisputed facts was entitled to recover, if not the
full amount of the note, at least his five hundred dollars and
interest, which he paid for the note. The judgment should
be reversed, and judgment for plaintiff.
Judgment reversed, and judgment ordered in favor of the
plaintiff upon the verdict.
March, 1865.] Crocker v. Crockbr. 291
Dekakd axd Noxnm RiQunuED to Csargb Indobsbr or Qvkrdus Non:
LeamU ▼. iHrfnom, 53 Am. Dec 922, and note; Cfoodwbt t. Iknenpori, 74 Id.
478b and note.
Transikbbxe or Kbootiaiiijb Papxb, wkiN Estoffxd fbom Smrxfo uf
T>MrMSVESi See ITeocer t. Lynch, 64 Am. Dec. 713; J(me8 ▼. Dorr, 81 Id. 406;
Wmdle T. CamuUqf, 83 Id. 348; Mttasdman ▼. MeBlhemty, 85 Id. 446; and see
Jfa«ry ▼. Cbtonan, 60 Id. 478; Rajf v. McMuHry, 63 Id. 822. The principal
am is cited in Mfxtekman v. lfc<oa{/; 84 How. Pr. 433^ 8. 0., 4 Rob. (K. T.)
574, aa holding that the indonen of a promiaaory note, who had canaed the
note to be sold at public anction, were estopped from aetting np a want of
demand and protest; and in Amoi v. Erie S'y, 5 Hun, 612; to the point ihat
where <me oofporation transfers the bonds of another, and reoeiyea the avails
tiiereof, it will-be estopped from denying its liability upon ita guaranty of
the payment of the coupona, made with other corporatioiia; and see it alM
referred to in Voorhua t. Oknttead^ 8 Id. 755; 8. €!L» 6 Thon^. ft O. 182, on
the q[oeatian of estoppeL
Gbookeb V. Gbookeb.
[81 New YOBK, W7.]
IkuR BamoB n Fator or Principal, when property is porohaaed by
an agents in his own name, with his principal'a fnnda.
BOHA FmB PgHCfffARlB, WITHOUT NOTIOB, Or CORPOBATB 8tO0K, WILL BR
pRonBcmD A0AIH8T BwoBXT Tructt in fa^or of a third person, where
such person, by his own Tolnntary act, haa conferred the apparent right
of property in the stock upon the vendor.
PuBOHAaDi or GoBPORATB Stock, WITH KoTioB or Trust or Favor or
Tbibd Pkbson, takes nothing as against the eutid qne tnuL
AcnoN by Retire F. Crocker against Stephen Crocker and
otherSy pledgees of Stephen Crocker, to establish title to cer-
tain shares of stock. The fisu^ts are stated in the opinion.
JJ. 8, McKay J for the appellant
Martin Smithy for the respondents.
By Court, Wright, J. We must apply the law to the facts
found by the judge at special term, and cannot look into the
evidence (as it was the province of the court below on appeal
to do), and affirm or reverse the judgment, as we shall agree
or disagree with the original tribunal as to the facts. The
reversal of the judgment at the general term, not being stated
in it to be on the facts, is deemed to have been on the law
alone, as applied to the facts found by the judge; and the
questions of fact are not, therefore, open to review here: Code^
268.
This disposefl of the question so elaborately argued by tht
29S Orockbr v. Cbookeb. [New York,
defendants' counsel, principally, by a reference to the evi-
dence, viz., the* fraudulent purpose of the plaintiff in the trans-
action in Ai^ust, 1846, respecting the stock. Upon the facts
M& found by the judge, no fraud can be predicateid, even were
the defendants in a position to allege it, and had by the plead-
ings raised any such issue. There is a distinct finding thai
the arrangement by which the stock was purchased at the
public sale, by his brother, for the plaintiff's benefit, was
not made to hinder, delay, or defraud the creditorB of the
.latter.
J]kut besides this, the defendants were in no position to al*
;kge that the transaction was fraudulent. They were not
creditors of the plaintiff, nor did they make title or claim
through any proceedings instituted by his creditors. Other
parties had filed a creditors' bill against the plaintiff, and
obtained an injunction, which was pending at the time the
stock was purchased, hut these parties do not complain (if
they could have complained), and the defendants were in no
way connected with them. The principal defendant was ibe
mere agent of the plaintiff in effecting the purchase, and
any rights which the others had were derived through such
agent.
What, then, was the case? In 1846, and before that time,
the plaintiff owned four hundred shares (of twenty-five dollars
each) of the capital stock of the Union Manufacturing Com-
pany of Norwalk, in the state of Connecticut. He had paid
upon such stock nine thousand dollars, and owed the balance,
one thousand dollars. He had a claim against the company
equal to such balance. Not being able to pay the balance on
his stock, the company notified him that he must pay, and to
compel payment, advertised the stock for sale at auction at
Norwalk. After notice of the sale, the plaintiff settled his
claim against the company, by which they were to allow him
nine hundred dollars, and it was arranged that on the sale of
the stock, nine hundred dollars should be credited to him on
account of the one thousand dollars due by him on the stock,
and he should be entitled to the stock on paying the balance.
The plaintiff and his brother, the defendant Stephen Crocker,
both resided in the city of New York, and an arrangement was
made between them that Stephen, who knew of the arrange^
ment with the company, should attend the sale at Norwalk,
and purchase the stock for the plaintiff's benefit, the latter
Mavoh, 1865.] Cbockeb v. Cbockbr. 293
then being: in embarrusBod circiiiuBtanceB, and not being able
tX) ba7 it himself by reason of an injunction haying been
granted against him. On the 27th of August, 1846, the stook
was sold at auction^ pursuant to advertisement, and bid in by
Stephen Crocker in his own name, at $2.55 per shaie; .but in
ooDseqaence of the befoie-mentioned agreement made previou.
to the sale, he paid to the company no more than $104. The
auctioneer at the sale gave a certificate of the transfer of the
four hundred shares to Stephen, and in conformity with the
laws of Connecticut, the same was duly recorded in the office
of the town clerk of Norwalk, thus vesting him. with the legal
title.
The substance of the transaction, then, was, that the plain*
ti£f 's stock being about to be sold at public auction, for the
balance of $1,000 which he owed upon it, and having agreed
with the company that on the sale he should be credited
with $dOO, h&ng the adjusted amount of the company's in«
debtedness to him, and be entitled to the stock on paying
tlOO, he arranged with his brother Stephen to attend the
sale, and buy in the stock for his benefit. Stephen at-
tended the sale, and bid in the stock in his own name, for
the sum of $1,020, but in accordance with the agreement be*
tween the company and the plaintiff, to credit the latter on
the sale the sum of $900, he paid but $104 of his bid, being
the balance due, after such credit, with some trifiing expenses
of the sale.
Stephen Crocker then purchased the stock, as the agent (d
the plaintiff, in his own name with the funds of the plaintifi^
and for the benefit of the latter. By the purchase he ac-
quired, in equity, no title to the stock as his own^ but as be-
tween him and the plaintiff, was the mere trustee of the latter,
who was the equitable owner of it When a purchase is made
by an agent in his own name with the funds of the principal,
a trust arises or results in favor of the latter by the implica-
tion of law. The judge at special term was therefore right
in the conclusion that as between the plaintiff and his brother
Stephen, the latter, although clothed with the legal title, watf
not, in equity, the owner of the stock, but held it, from the
time of its transfer to him, in August, 1846, as the trustee for
the benefit of the plaintiff. As between these parties, the
plaintiff in equity was the owner^ and Stephen Crocker, the
nominal purchaser, who had the indicia of title, held it in
294 Crocker v. Crocker. [New York^
trust for him. So far, then, as the defendant Crocker was
concerned, the trust, which was not invalid by our law, a court
of equity will enforce.
Any interest or right which the other defendants acquired
in the stock was derived through Stephen Crocker by a trans-
fer from him. If they had knowledge or notice of the trust,
they could not claim protection as Botul fide purchasers. It
would imquestionably be different, if without notice they be-
came the purchasers, Stephen Crocker holding the stock in
his own name for years, and dealing with it as his own with*
out objection by the plaintiff.
In April, 1851, Foster and Livingston advanced their own
note to Stephen Crocker for three thousand dollars, and took
as security one hundred shares of the stock, with a power of
attorney to one of their clerks to transfer it. They paid this
note at maturity with means furnished by Crocker, and at
the same time gave him a new note for like the amount, and
also three notes for one thousand dollars each. These trans-
actions were merely a continuance of the first loan, and were
made without any knowledge of the trust in favor of the
plaintiff. The last notes were paid by that firm when they
fell due.
On the 20th of August and 10th of September, 1851, Ste-
phen Crocker lodged other one hundred shares of the stock
with Francis Skinner & Co., with power to transfer it as col-
lateral security for an advance to him of three thousand dol-
lars by their two acceptances of fifteen hundred dollars each,
which they afterwards loaned and paid; which loan was never
paid. This advance was made on the faith and security of
the stock, and without knowledge or notice of the trust.
With respect to these defendants, I entirely concur in the
conclusion of the judge at special term, that they were enti-
tled to hold the several parcels of stock transferred to them
and be reimbursed their advances by a sale of it. The plain-
tiff had, by his own voluntary act, caused Stephen Crocker to
be invested with the legal title to the stock, and suffered him
to deal with it as his own for years. Having through mis-
placed confidence conferred on him the apparent right of
property as owner, a bona fide purchaser of the stock from
him, in the course of commercial dealing, without notice,
would be protected in his title against any latent equities
of the plaintiff. Foster and Livingston and Skinner & Co.
lent their notes and acceptances to Stephen Crocker on the
March, 1865.] Crocker v. Crocker. 295
credit of the stock transferred to them, without notice of the
secret trust in fietvor of the plaintiff, and were bona fide pur-
chasers; for the term '* purchaser," in this connection, includes
one who advances money or incurs responsibility uix)n credit
of property.
On the 27th of October, 1851, the firm of Lounsberry, Bis-
sell, & Co. (of which firm Stephen Crocker was then a member)
lent and advanced to Crocker six thousand dollars, by their
two drafts on F. Skinner & Co. for three thousand dollars
each, for the benefit of Crocker, who, at the same time, lodged
with them as security the remaining two hundred shares of
the stock, and also one hundred shares of St. Lawrence Mining
Comi>any stock. The latter they surrendered to him after this
action was commenced. They paid the two drafts, and the loan
of six thousand dollars is still unpaid. One of the findings of
fact by the judge is, that the firm of Lounsberry, Bissell, <b
Ca took the assignment of the two hundred shares of stock
with notice of the facts and circumstances under which
Stephen Crocker purchased and held the same. Knowing
that Stephen Crocker held, not in his own right, but as
trustee for the plaintiff, they are not entitled to be protected.
They are not bona fide vendees, having taken with knowledge
that Stephen Crocker was violating a trust reposed in him.
As against the cestui que trtuij they took nothing by the
fraudulent transfer.
It is insisted that the finding is not that the firm had ac-
tual notice of the trust, but that the knowledge of Stephen
Crocker, being a member of the firm, operated as notice to the
defendant Bissell and other members of the firm. If this
were so I should hesitate some upon the question whether the
knowledge of Stephen Crocker operated as notice to the other
members of the firm so as to deprive them of the character of
bona fide holders of the stock. But the finding cannot be con-
strue in any other way than that, as matter of fact, the firm
know of the trust. It is found as distinctly by the judge as
any other fact in the case, that the firm took the assignment
of the two hundred shares of stock with notice of the facts and
circumstances under which Stephen Crocker purchased and
held the same; that is, that they know that Crocker had
purchased the stock for and on account of the plaintiff, and
held it in trust for him.
Upon the whole, I am of the opinion that the correct dis-
position was made of the case at the special term. The lead*
296 Cbogksh «• CsoGXSB. [New. Yoik«
ing question was^ whether the defendant Stephen Crocker
owned the stock in hiB own right, or held it in trust for the
plaintiff. If ia the latter character, he was bound to account to
the plaintiff for the stock, or the value of so much of it as he
had, in fraud of the plaintiff's rights, disposed of to bona fide
purchasers. Two hundred diares of the stock he had hypothe-
cated with Foster and Livingston and Francis Skinner & Co. as
collateral security for loans made to hi.ii. These firms ad-
vanced to him on the* credit thereof, in each case, three thou-
sand dollars, without notice of the claim or interest of the
plaintiff, and had a lien on the stock to the extent of their
several advances. The remaining two hundred shares were
hypothecated with Lounsberry, Bissell, & Co. (who are repre-
sented in the action by the defendant Edward C. Bissell), as
collateral security for the pajrment of two drafts of three
thousand dollars each, lent by them at the time^ to Stephen
Crocker. ThiA firm had notice of the claim of the plaintiff,
and the character in which the defendant Crocker held the
stock. They were not innocent purchasers, nor deceived as to
the rights of their assignor, or of the plaintiff; and as against
the plaintiff, the assignment of Crocker gave them no title
to the stock. This firm were properly decreed to transfer the
two hundred shares to the plaintiff.
The supreme court at general term affirmed, with costs of the
appeal, so much of the judgment of the special term as related
to the defendants Francis Skinner & Co. and Foster and Liv-
ingston; and reversed the residue of it affecting the defendants
Stephen Crocker and Edward C. Bissell, and dismissed the
complaint with costs. I am in favor of reversing the judgment
of the general term, and affirming that of the special term, with
costs of this appeal, as against Stephen Crocker and Edvfrard C.
Bissell; but if this cannot be done, there should be a new trial
ordered. In case the judgment of the special term is affirmed,
the plaintiff should pay F. Skinner & Co.'s and Foster and
Livingston's costs of the appeal to this court, and the judg^
ment 1)0 so modified as to permit the plaintiff to redeem the
one hundred shares of stock from Skinner & Co., by paying to
them, within thirty days from the entry of our judgment, the
sum of three thousand dollars, with the interest thereon from
the 19th of July, 1852, and their eosts in the courts below and
in this court; and also to permit him to redeem the one hun-
dred diareaof stock from Foster and Livingston, by paying
to them, within fche time above specified, the sum of three
March, 1865.] Cboceeb v. Cbocksb. 297
UtouBand dollars, with interest thereon firom the 11th of April,
1852, together with their costs in the courts below and in this
court.
Judgment reversed, and that of the special term affirmed.
Tbdst Rbrtlts m Fatob or FloNaiPAL, when PROFrarr n Pir«cHA6XD
Wt AOKHT, in his own name, with his principal's funds: Sweet ▼. Jaeodks, 31
Am. Dee. 252; Pbmoek ▼. Clomffh, 42 Id. 521; JfoffaU v. Shepard, 62 Id. 141.
Bona Twm PuBOHAaKB or Pkrsonal Pbofxbtt, wbxs PBOTBono): See
Chrmkhaei ▼. Buck, 70 Am. Dec. 226, and note; State Bankv, Gooc, 78 Id. 458.
If the owner of stock of a corporation places it in the possession of another,
and confers upon him the usual mdida of ownership, or right of disposal, he
18 bound by any disposition made of it, to one who acquires it without notice,
for a valuable consideration: Brewster v. Sime, 42 CaL 147; Rawla ▼. Deakkr^
3 Keyes, 578; S. C, 4 Abb. App. 20; Bailard v. Burgett, 40 N. T. 318, 324;
Weaver v. Borden, 49 Id. 290, 298; and see Boetwk-k v. Dry Choda Bank, 67
Barb. 451; but where a party has been deprived of his property by a fraud-
ulent sale to another, it is no answer to his claim that the defendant was an
innocent purchaser, in the regular course of business, who paid a full con-
sideration for it, unless the owner, through his negligence, or by some in-
excusable or wrongful act on his part, has been himself the means of enabling
his agent to efifoct the fraud by deceiving persons of ordinary caution: DevUn
V. Pilv, 5 Daly, 103; and where chattels are sold and delivered conditionally,
the vendor's right to the property remains good as against the vendee and
his voluntary assignee, and others who purchased with knowledge of the con-
dition, but not as against honafide purchasers from the vendee: W<ut v. Green,
35 N. Y. 557; S. O., 46 How. Fr. 450. The principal case is cited to the
foregoing points.
The FBnrciPAL cajsb is also cited in JfcOom&te v. Spader, 1 Hun, 198,
8. C, 3 Thomp. ft C. 695, to the point that where a loss must be sustained by
one of two innocent persons on account of the fraud or misconduct of another,
it must be borne by the one who supplied him with the means and ability of
producing it; and in Case v. Phelps, 39 N. T. 167, to the effect that where
it is not stated, in the judgment of reversal by the supreme court, that the
judgment was reversed on questions of fact, the court of appeals will consider
questions of law only. In McNeil v. Tenth National Bank, 55 Barb. 66,
Potter, J., thus comments upon the principal case: "The case of Crocker v.
Crocber is unskillfully reported, and is well calculated to mislead the profession.
The statement of the case, and the leading opinion that was adopted by the
whole court, is omitted in the report, and an opinion coming to the same con-
clusion, but which was not read on the consultation, is reported. Though
there is nothing in the reported opinion that is in conflict with what was
docided, the report entirely fails to present the whole view and real point of
may value in the case, aad hence the confusion,"
298 Petersen v. Chemical Bank. [New York,
Petersen v. Chemical Bank.
[82 NVW YoBK, 2LJ
Rboord or One Statb Ooubt ADMrmv q Will to Pbobati, and appotat-
iug an administrator upon the default of the ezecoton named in it to
appear and qnalify, ia, under the constitation and laws of the United
States, entitled to full faith and credit in the courts of sister states.
FaFDON BXBODTOR OR ADMINISTRATOR GAKNOT SUK IN HIS RSPRUINTA-
TiYi Oharaotbr in the courts of New York. And one appointed undor
the laws of a sister state is foreign within the sense of this rule. But
where he is the real owner of the choee in aotiom sued upon, he can sue
in his own name in New York.
Patiobnts Voluntarilt Madr bt Debtors or Dbgbased to Forboh
Administrator are held effectoal in the courts of New York, on prin-
ciples of national comity.
Rrcbitbrs or Insolvvnt Forsion Corporations and Asbionrb ov
Bankrupt and Insolvent Debtors under the laws of other states and
countries are allowed to sue in the courts of New Tork. It is tnie^ their
titles are not permitted to overreach the claims of domestic creditors of
the same debtor pursuing their remedies under the laws of that state;
but in the absence of such contestants they fuUy represent the ri^ts of
the foreign debtors.
SuocEssioN to Personal Estate or Dbobased Person is Governed by
the law of the country of his domicile at the time of his death. This is
so whether the succession is daimed under the law providing for intes-
tacy or for transmission by last will and testament.
Title or Exboutor or Administrator to Assets or Dbqeased Bxistdto
IN Another Country, though conferred by the law of the domicile of
the deceased^ is recognized everywhere.
EaoEouTOR or Testator, havino been Clothed with Commission or
Probate Court, is Vested with Title to all the movable proper^
and rights of action which the deceased possessed at the instant of his
death.
Title or Testator's Executor to Personal Propertt is Fidugeabt.
AND NOT Beneiicial; yet it is perfect against every person, except tho
creditors and legatees of the deceased.
Administrator with Will Annexed has Same Rights or PROPEBar as
the executor named in the will would have if he had qualified.
Executor's Tttlb to his Intestate's Movables and Riortb in Action
Carries Jus Disponendi with It, and he may so sell and convey a
chose in action of his intestate as to vest in the purchaser all the legal as
well as the equitable rights of the original creditor.
Executor or ADMiNiaTRATOR, BAvmo Absolute Power or Disfosal
OVER Whole Personal ErrEcrs of his testator or intestate, they can-
not be followed by creditors, much lees by legatees, either genoal or
specific, into the hands of the alienee.
Choses in Action are Assignable in New York, so as to permit tho
assignee to sue in his own name.
Assignee or Foreign Executor mat Maintain Action in Coubib or
New York upon a chose in action transferred to such assignee by such
foreign executor.
DiSABiLiTT or Foreign Exbcutob to Sub in Courts or New York doss
not attach to the subject of the action, but to the person of the plaintiff.
MArch, 1865.] Pstebsxn v. Chemical Bank. 299
TiTLB AoQUnUCD THROUGH FOSXIOV ABMnmnUTION 18 UHIYXBaiLLT B>>
aPECTED BT COXHT OF NATIONS.
Iv Suit bt Abbionsb or Foreign Executor upon CHoes in AonoN, Ir n
No Objbotion that the aasignment was made to avoid the diffioul^
aiisiiig from the incapacity of such executor to sne.
Reasons Statvt> tor Disabilitt of Foreign Executor or ADMnmrRA-
TOR TO Sue.
Vaudttt of Evert Transfer, Alienation, or Dispositicn of Personal
Property dependa upon the law of the owner's domicile.
If Absence of Contrary Proof, Courts of One Stats will Assume
THAT Law of Another State reopacting the alienation of chose* in
action is the same as their own.
Action brought in the superior court of New York to recover
the Bum of $32,321.24, being an amount standing to the credit
of Aaron Cohen, as a dealer, on the books of the defendant's
bank in New York. Cohen died at the city of New Haven in
Connecticut, on July 27, 1862. He left a last will and testa-
ment, executed in New York, on June 11, 1861, by which ex-
ecutors were appointed. The will was proved and admitted
to record in the probate court of the district of New Haven,
in September, 1862. One of the executors having renounced,
and the other not appearing to qualify, administration with
the will annexed was granted to David J. Peck, of New Haven,
he giving a sufficient bond, conditioned to make an inventory,
and to account, etc. He demanded of the defendant the above
amount, standing to the credit of Cohen, presenting an authen-
ticated copy of his appointment, but payment was declined.
He then, on December 2, 1862, made a transfer under his
hand and seal of the debt due from the defendant to the
plaintiff in this action. The instrument was expressed to be
in consideration of $32,321.24, received to the assignor's full
satisfaction; it contained proper words of sale and assignment,
a guaranty of the collection of the amount, and a promise to
indemnify the plaintiff against loss by reason of the purchase.
With this instrument the plaintiff called at the bank, pre-
sented his own check as well as that of Peck, and demanded
the money. He also exhibited an instrument signed by all
the legatees named in the will, with the exception of one who
resided in an insurgent state, and who was entitled to one
sixth of the residue, requesting that the money might be paid
over to Peck as administrator. Defendant, however, persisted
in refusing payment, on the ground, apparently, that it could
not be safely paid, except to an administrator appointed under
the laws of the state of New York. The proof as to domicile
18 shown in the opinion. Cohen owed no debts in New York.
800 Petbrssn v. Chemical Bahtk. [New York,
Aa to the tranfifer, the evidence was that tiie plaintiff was one
of the. sureties of Peck in the administration bond, and had
acted as his agent in the settlement of the estate. The con-
sideration did not appear to have been paid absolutelv. The
amount was advanced by the plaintifit^ and together with other
moneys of the estate was deposited in a bank in the name of
the plaintiff as trustee, he having, however, by the arrange-
ment no right to claim it except by the direction of Peck; the
intention apparently being that it should be paid out in the
course of administration. Defendant's counsel moved to dis-
miss the complaint, on the grounds that an action would not
lie by an assignee of a foreign administration; that there was
no consideration for the transfer; that it was made to evade
the laws of New YorL; and that the probate court in Connecti*
cut had not jurisdiction. They also insisted that the question
as to the domicile of Cohen should at least be submitted to
the jury. The motion was denied, and the jury were instructed
to find for the plaintiff. Defendant's counsel excepted. It
was directed that the exceptions be heard in the first instance
at the general term. Verdict for the plaintiff for the amount
claimed, with interest. Judgment for the plaintiff was ren-
dered thereon at the general term, firom which the defendant
appealed.
R. B. Roo9eveUy for the appellant.
William Bliss, for the respondent.
By Court, Denio, C. J. The evidence was quite conclusive
that the domicile of Cohen at the time of his death was at
New Haven. The purchase of an expensive dwelling-house
for his residence, the measures taken to furnish it with ser-
vants, and to repair and supply it with furniture and fuel, and
the intention to make it his permanent abode for the remainder
of his life, were shown by positive evidence, which was wholly
uncontradicted. Upon this evidence there was no question
for the jury, and if a verdict had been returned involving a
denial of its effect, it would have been at once set aside. If it
be conceded that prior to these acts, and this manifestation of
intention, it was equivocal whether his residence was at New
York or New Haven, it was no longer so after he had provided
himself with a residence in the latter city with the absolute
determination permanently to occupy it. It follows that the
probate court of the district which embraced the city of New
Haven had jurisdiction. The record of that court admitting
March, 1865.] Pbtbrsbn v. Chemical Bank. 301
the will to prohate, and appointing an administrator upon the
default of the executors named in it to appear and qualify,
was, by force of the constitution and laws of the Unitea
States, entitled to fall faith and credit in the courts of this
state.
A foreign executor or administrator (and one appointed
under the laws of a sister state of the Union is foreign in the
sense of the rule) cannot sue, in his representative character,
in the courts of this state. The question whether a party de-
riving title to a chose in action by transfer from such an execu-
tor or administrator can prosecute the debtor residing here in
our courts has been variously decided in the cases to which
we have been referred. In the supreme court, in the first dis-
trict, the Merchants' Bank of New York was sued for refusing
to transfer to the plaintiff one hundred shares of its stock, to
which the latter made title by transfers from the executors of
one Robert Middlebrook, in whose name the stock stood on the
books of the bank. He died at his residence in Connecticut,
and his will had been proved, and letters testamentary had
been issued by the probate court of the proper district in that
state. The plaintiff was a legatee of a certain amount of the
testator's stock, and the shares in controversy had been as-
signed to him in satisfaction of the legacy. The court held
that the executors became vested with the title to the stock,
and that the plaintiff, though he derived his title under them,
could enforce his right against the bank in our courts, and
judgment was accordingly given in his favor: Middlebrook v.
Merchants^ Banky 27 How. Pr. 474; S, C. at special term, 24
Id. 267.
A different rule has been established in the courts of New
Hampshire and of Maine: Thompson v. Wikon^ 2 N. H. 291;
Steams v. BumJuzm, 5 Me. 261 [17 Am. Dec. 228]. In each
of these cases the defendant was sued as the maker of a prom-
issory note by parties claiming as indorsees under indorse-
ments by the executors of the payees, who were respectively
residents of Massachusetts, and whose wills were proved and
letters thereon issued in that state. The defendants prevailed
in each case, on the objection that the reBi>ective plaintiffs were
subject to the same disability to sue which would have at-
tached to the executors if they had attempted to prosecute in
another state than that under whose laws their letters testa-
mentary were granted. In the first case, the judgment was
placed upon the English ecclesiastical law, by which probates
802 Pbtebsxn v. Chemical Bank. [New York,
of wIIIb and grants of administration are void when not made
hj the ordinary of the proper diocese, a doctrine which I do
not think applicable to questions arising between different
states, as it makes no allowance for the principles of inter-
national comity. In the case in Maine it was thought that
allowing a recovery would be an indirect mode of giving opera-
tion in Maine to the laws of Massachusetts, and r.lso that the
effects of the deceased might thereby be withdrawn from the
state to the prejudice of creditors residing there.
The precise case now before us came before the supreme
court of the United States in Harper v. Budery 2 Pet. 239.
The suit was brought in Mississippi on a chose in action
originally existing in favor of a citizen of Kentucky who died
there, and whose executor, having letters testamentary issued
in that state, assigned it to the plaintiff. In Mississippi, choees
in action are assignable, so as to permit the assignee to sue in
his own name, as is now the case in this state. The question
arose on demurrer to the complaint, and the district court
sustained the demurrer. The judgment was reversed upon a
short opinion by Chief Justice Marshall, which merely states
the point, and contains no general reasoning. No counsel
appeared on behalf of the defendant.
The case in Maine has been made the subject of comment
in Story's treatise on the conflict of laws, sections 258, 259,
and is decidedly disapproved by the learned writer. He says,
that upon the reasoning of the case, a promissory note would
cease to be negotiable after the death of the payee, which, he
observes, would certainly not be an admissible proposition.
It seems clear to me that there are no precedents touching
the question which are binding upon this court, or which can
relieve it from the duty of examining the question upon prin-
ciple. There are certain legal doctrines, now very well estab-
lished, which have a strong bearing upon the point. It is very
clear, in the first place, that neither an executor nor adminis-
trator appointed in a foreign political jurisdiction can main-
tain a suit in his own name in our courts. Foreign laws have
no inherent operation in this state; but it is not on this ac-
count solely or principally that we deny foreign representa-
tives of this class a standing in our courts. The comity of
nations, which is a part of the common law, allows a certain
effect to titles derived under and powers created by the laws
of other countries. Foreign corporations may become parties
to contracts in this state, and may sue or be sued in our courts
March) 1865.] Petsbssn v. Chemical Bank. 303
on contracts made here or within the jurisdiction which created
them. The only limitation of that right is the inhibition to do
anything in its exercise which shall be hostile to our own
laws or policy: Bank of Augvsta v. EarU^ 13 Pet 619; Bard v.
Pocie^ 12 N. Y. 495, 505, and cases cited. And yet nothing
can be more clearly the emanation of sovereign political power
than the creation of a corporation. Again, the receivers of in-
solvent foreign corporations and assignees of bankrupt and
insolvent debtors, under the laws of other states and countries,
are allowed to sue in our courts. It is true, their titles are not
permitted to overreach the claims of domestic creditors of the
same debtor pursuing their remedies under our laws; but in
the absence of such contestants, they fiilly represent the rights
of the foreign debtors: Story's Conflict of Laws, sec. 112; Hoyi
V. Thompson, 5 N. Y. 320; S. C, 19 Id. 207; WiUiU v. WaiU,
25 Id. 584.
It is not, therefore, because the executor or administrator
has no right to the assets of the deceased, existing in another
country, that he is refused a standing in the courts of such
country, for his titie to such assets, though conferred by the
law of the domicile of the deceased, is recognized everywhere.
Reasons of form, and a solicitude to protect the rights of cred-
itors and others, resident in the jurisdiction in which the assets
are found, have led to the disability of foreign executors and
administrators, which disability, however inconsistent with
principle, is very firmly established. We have lately de-
cided, that if the debtors of the deceased will voluntarily pay
what they owe to the foreign executor, such payment will dis-
charge the debts, and the moneys so collected will be subject
to the administration of such foreign executor: Pamotu v. £y-
mvn,, 20 N. Y. 103.
But the principle of law which I think governs this case is,
that the succession to the personal estate of a deceased person
is governed by the law of the country of his domicile at the
time of his death. This is so whether the succession is claimed
under the law providing for intestacy or for transmission by
last will and testament: See PatBons v. Lyman^ supra, and au-
thorities cited at page 112. It is not so held because the foreign
legislature or the local institutions have any extraterritorial
force, but from the comity of nations. Accordingly, it is a
necessary supplement to the doctrine that, if the law-making
power of the state where the property happens to be situated,
or the debtor of the deceased reside, to subserve its own policy,
804 PETBBsrar v. Gbsuiqal E&sk. [New York,
has ingrafted qualificatians or refitrictkms upon tHe nguts of
those who would sucoeed to the estate by the law of the domi-
cile, they must take their rights subject to such restrictionfl.
One of the most natural as well as the most usual of these
qualifications is that which is. intended to secure the oreditora
of the deceased residing in the oonntrir where the assets exist.
It is in part to subserve this policy that Hie personal repre-
sentativee are not permitled to prosecute the ddbtor or parties
who withhold his effects in our courts. Bat the protection to
the creditor is further secured, by tiie remedy wliich is pro-
vided, by allowing them to take oat administration in the
jurisdiction where the assets are. If the deceased have any
relatives in this state who would be preferably entitled, they
can be summoned, and if they elect to take out letters them-
selves, they will be compellable to give bond, and the creditors
will be then made secure in their rights, or if the relatives
refuse to assume that responsibility, then the creditors may
themselves be appointed, and thus qualified to take possession
of the assets here upon the same terms: 2 R. S., p. 73, sees. 23,
24. If the debtors of the estate elect to pay to the foreign rep-
resentative, or to deliver to him the movable assets before the
granting of administration in this state, the domestic creditors
are put to the inconvenience of asserting their rights in the
courts of the country of their debtor's domicile against his
representatives appointed under the laws of that country, just
as they would have been compelled to do if all his effects had
been situated there.
Another general principle of law necessary to be adverted
to is, that the executor of a testator, as soon, at least, as he
has clothed himself with the commission of the probate court,
is vested with the title to all the movable property and rights
of action which the deceased possessed at the instant of bis
death. The title of the executor, it is true, is fiduciary and
not beneficial; that title is, however, perfect against every
person, except the creditors and legatees of the deceased.
The devolution of ownership is direct to the representative,
and the beneficiaries take no title in the specific property
which the law can recognize. An administrator with the will
annexed has the same rights of property as the executor
named in the will would have had if he had qualified: 2 R. S.,
p. 72, sec. 22.
The law of maintenance, while it existed, prohibited the
transfer of the legal property in a chose in action, so as to
ICaieh, 186S.] Prsbsbbi «« Chbmical Eahs. 806
give the assignee a right of action in faiB own namo. BuA thia
is now abrogated, and Buch a donand at tiiat which ia assorted
against the defendant in this suit may be sold and conyeyed^
60 as to vest in the purchaser all the legal as well as the equi*
table rights of the original creditor: Code, sec. 111. Though
finch demands are not negotiable in precisely the same sense
as commercial paper, since the assignee is subject to every
substantial defense which might have been made against the
assignor, yet where, as in this case, no such defense exists, the
transfer is absolute and complete. The title which is vested
in tbe executor carries with it the /im diaponendij which gen-
erally inheres in the ownership of property. '^It is a general
rule of law and equity," says Judge Williams, in his treatise
on executors, ^Hhat an executor or administrator has an ab*
solute power of disposal over the whole personal effects of his
testator or intestate, and that they cannot be followed by
creditors, much less by legatees, either general or specific, into
the hands of the alienee": Williams on Executors, 706; see
also Wkctte v. Boothj 4 Term Bepi 625, in note to Farr v. New^
man; Sutherland v. Brashy 7 Johna Ch. 17; BcfudinmmY. SUme^
S Wil& 1; jBarpcr v. BuOerj 2 Pet. 239.
It fbUows that tiie plaintiff presented himself to the supe-
rior court as the owner, by purchase and assignment, of the
debt agttinst the defendant, from a person, holding the title,
and hence having authority to sell. He claimed to recover^
not as the representative of any other party^ but as the sub*
stituted creditor of the defendant's hank. He had, it is true^
to make title through the will of Cohen, and the proceedings
of the probate court of Connecticut; but the validity of that
title depended upon the law of Connecticut, that being the
place of tbe domicile of the former owner of the demand.
The validity of every transfer, alienation, or disposition of
persona) property depends upon the law of the owner^s domi-
cile: Story's Conflict of Laws, see. 383. In tbe absence of
proof to Uie contrary, we assume the law of Connecticut re-
specting the agnation of choses in action to be the same aa
our own. If Cohen had, at his deaths been a resident of thiA
Btate, and his administrator with the will annexed had sold
and aemgned to the plaintiff his demand against the bank,
there is no* manner of doubt but that the assignee, upon the
refusal of the bank to pay the amount, could have maintaimd
this action.
E[ence there ia moi, I think, aay reaaon wh^ the plaintiff
An. Dia Vol. LXXXVUI— 40
806 Pnmumi «. Cbsmical Bahk. [New York«
Bhoald be precluded from maintaining his action on aoooont
of hifl making title thtongh a foreign administration. The mle
is. not that oar courts do not recognize titles thus acquired; it
is, simply, that a foreign executor or administrator can have
no standing in our courts. The plaintiff does not occupy that
position; he sues in his own right and for his own interest,
and represents no one. In my opinion, the disability to sue
does not attach to the subject of the action, but is confined to
the person of the plaintiff. If he is an unexceptionable
suitor, and there is no rule of form or of policy which repels
him from our courts, he is to be received, and he may make
out his title to the subject claimed in any manner allowed by
law; and it has been shown that title acquired through a for-
eign administration is universaUy respected by the comity of
nations.
It is pretty obvious, from the evidence of the drcumstanoes
of the transfer by Peck to the plaintiff, that its object was to
avoid the objection which might be taken if Peck had sued in
his own name, as administrator, without taking out letters
here. There was no other conceivable motive for the plaintiff
to purchase this moneyed demand, payable immediately, for
its precise amount paid down. If his check on the bank,
drawn shortly after the transfer, had been answered, he would
have received the precise amount he had parted witii, and the
transaction, at the beet, would have been paying with one
hand to receiving the same amount back with the other. If
he failed to realise the amount, he was to be indemnified by
Peck. This circumstance, and the manner in which the as-
sumed consideration was disposed of, would doubtless have
led the jury to find that the form adopted was resorted to in
order to enable the administrator to avail himself of the bal-
ance in the defendant's bank without taking out administra-
tion here. Still, as between the plaintiff and Peck, the interest
in the demand passed. Peck would have been estopped, by
his conveyance, under seal, containing an acknowledgment of
the payment of the consideration, from setting up that nothing
passed by the conveyance.
I am of opinion that the defendant cannot make a questioo
as to the consideration. If all the parties had been residents
of this state, a transfer of the demand, good as between the
parties to that transfer, would have obliged the defendant to
respond to the action of the transferee. Then, if we hold, as
1 think we should, that the objection to the suit of the admin-
March, J8G6.] Pbtxbben v. Chemical Bank. 807
istrator waa in the nature of a personal disability to sue, and
not an infirmity inhering in the subject of the suit, the fact
that the transfer was made for the purpose of getting rki of
the objection should not prejudice the plaintiff.
The cases which have been referred to upon this point have
considerable analogy. The constitution and laws of the United
States confer upon the courts of the Union jurisdiction in suits
between dtisens of different states, with an exception con-
tained in an act of Congress of one suing as the assignee of a
chose in action of a party whose residence was such as not to
permit him to sue. In an action by an assignee concerning
the title to land, which was not within the exception, it was
held not to be an objection which the defendant could take
that the assignment was made for the purpose of removing
the difficulty as to jurisdiction: Br%gg% v. French^ 2 Sum. 261.
In a late case in this court against a foreign corporation,
which could not be prosecuted here, except by a resident of
this state, unless the cause of action arose here, or the subject
of the action was situated here, it was held that the objection
— that the assignment of the demand by one not qualified by
his residence to sue to the plaintiff, who was thus qualified,
was made for the purpose of avoiding the difficulty — could
not be sustained: MeSride v. Farmen^ Bankj 26 N. Y. 450.
I have not thus for referred to the circumstance that Cohen
was shown not to have owed any debts in this state. That
foci was proved as strongly as, in the nature of the case, such
a position could be established. The administrator, whose
bustness it was to ascertain the existence of debts, and the
confidential servant of Cohen, who was very familiar with his
transactions, affirmed that there were none; and the defend-
ant gave no evidence on the subject The motive of policy
for forbidding the withdrawal of assets to the prejudice of
domestic creditors did not, therefore, exist in this case. Still,
if the rule is that neither the foreign administrator nor his
assignee can maintain an action in our courts to collect a
debt against a debtor residing here, on account of its tendency
to prejudice domestic creditors, the exceptional features of the
present case would not change the principle. It would of!eu
be more difficult than in this case to disprove the existence of
such debts. But I am of opinion that the objection should be
regarded as formal, and that it does not exist where the plain-
tiff is not a foreign executor or administrator, but sues in fiis
own right, though his title may be derived from such a repre-
808 Pbtebsen v. Chemical Bank. [New Yotk,
ientative. I am in favor of affirming the judgment of the
euperior court.
Potter, J., delivered a concurring opinion.
Full Faith and Cbbdit mrsr be Given in 'EIack Statb to Pvbuo
Acts, records, and judicial prooeedings of every other nMe: Taphrr* Bar*
roHi 64 Am. Deo. 281.
Ai>MiNisnujOR OANHOT Quw OR BE SuED Df ANOTHER Stats thaa th«i
of .hii.appointment,iiL lua repreaantative capacity, without taking oat letters
of administration, ia Buch other state: Judy v. Kelley, 60 Am. Dec 455; 2)avif
V. Smitli, 48 Id. 279, and note 297; note to Molpneux v. Seymonr, 78 Id. 668;
660; Vro(y7n v. Van Home^ 42 Id. 94; Salmoml v. Price, 42 Id 204; 8wicmkm^
^fAUce PadM^ody 41 Id. 341 ; nnmerona cases cited in the note to OoodaU v.
MBLTiakaU, ^ Id. 484| 485^ on ancillary admioistEation.
MovASUi. Peopebty is Subject to Law of Domigilb: Toumes v. DurUHf .
77 Am. Doc. 176, and collected cases in note thereto 181; Succession qfPaet-
wood, 43 Id. 230.
Paybcknts Voluntarily Made to Foreign Administrator by debtors
of deceased are held effectual in the coorts of New York on principles of.
natioaaX oomityr Vroom v. Vam Hortte, 42 Am. Deo. 94; note to Up(on v.
£rffMon<,.73.LL 676u
TiTLR 09 BXEODTOR, OR ADMINISTRATOR TO ASSETS OF DECEASED: Lodd
▼- Wigffin, 69 Am. Dec. 551; Beckett v. Seiover, 68 Id. 237, and note 256; (Tots
€rw»' V. WUSams, 38 Id. 712; note to Upton v. Hubbard, 73 Id. 676.
EXEGUTOBa AND ADMINTErTKATORSStAND ON SaMB* GrOUNI> with rSSpOOt-
to their^ responsibifitiesf rights, and poveoB: Muxrag v. Biak^fardf 19 Anu
Dt»«537
Right ok Amiohbb op Chime. in Aitison to Sue: ffopkme v. C/jpater, 70
Am. J>eo..375, and note 380. Assignment nnder laws of one state of chose
in. action not assignable in another state does- not enable the assignee to sao
iheseon in h\a own name in the latter stttte: KWIdand ▼. Lowti 69 Id. 366.
Administrator mat Assign Chose in Action by a proper instrument.
for- that purpose* without license: Ladd v. Wigginf 09. Am. Deo^ 561, and not*
650i
LaW' of r ANamu Stazk is Frbsdmed to be the same.as the law of this:
Pkabcdy V. Caxrol, 13 Am. Dec SOS-
Toe principal case was cited in each of the following asthorities sad to
the point stated: A foreign executor can dispose of penooal assets in tho-
state of New York; andone to whom he assigna stock in a oorporatioii of the
stftte'of N«w Tbrk mayTeqiiii« a transfer thereof on the books of the corpo-
raftiea: ifttM&bmefc v. Mmxkanta' Bank qfNew York, 3 Abb. App. 297; S. C,
SJKeyes, 136,.,totheisame point. An executor has duties to perform as to
property situated in other states, and in the absence of any conflicting ad*
ministration, he will take the title to propexty sitnatsd . b^ond the state
wUere he wBS«ppeinted, and be Orntiioiised to reoeive payment upon notes and
ollisrtcfanaBi)itta«tioivaad to give acquittances therefor: Sherman v. Page^ 21
Bbi^.66| il4itfter,q/'/ofie0>3Redf. 258. But authority possessed under letters
fcMd foreign state is. superseded in New Yorlt when letters are there issued
to the plidntiff'. And any vaiid - disposition -of- assets which' thsifdnsign.ad-
ministrBtor bad 'xnadKt bef dre IsttSBSiwers issued in: New Yonk iMold bsc valid, .
March, 18G5.] Petersen v. Chemical Bakk. 809
bot an invalid dispositian could not stand againfet the claim of the plaintHf in
New York whenever he came to aasert it: Lawrence v. Towneend, 88 K. T.
SI. Whenever a debtor dies ont of New York state, leaving assets these
which are administered upon there, those assets are liable in the first instance
to hia creditors there: Bsiate qf Hari, 1 Tack. 134. But it is the weU-setUdd
law of New York that an ezecator or administrator appointed in another
state has not, as such, any authority beyond the sovereignty by virtue of
whose laws he was appointed; and may not sue in the court of another state
which had not given him letters of administration: Matter qfJonn^ 3 Bedf.
S58. Yet, while the executor may not be permitted officially to sue in fh«
courts of another state which has not given him letters of administration, he
may lawfully receive all personal property there situated, and will be liable as
for n^lect of duty if he does not use diligence to collect debts there due to
the testator: In Matter qf Estate qf Butler, 38 N. Y. iOO; and he can transfer
a title which will authorize his assignee to recover by action any personal
property situated in another state: Id. So the assignee of a foreign adminis-
trator may maintain such action in New York: Smith v. T^any, 16 Hun,
•553b But New York has not yet become a sanctuary for the protection of
property in the hands of a transferee, who has acquired it by a frauduleiit
oontrivance, although the act of transfer was made in a foreign state, and
the property is pursued by a person in whom the title in such property is
vested under the laws thereof: Barclay v. Qukk^lboer M. Cb., 6 Lans.'3S2.
The right to assign is incident to the possession of the legal title, and a de-
fendant in an action by the assignee cannot question the consideration upon
which it was made: Daby v. Ericsson, 45 N. Y. 790. A receiver appointed
by a court of New York, clothed with authority to take the designated prpj^
erty wherever situated, may sustain a suit for such property in the courts of
New Jersey: Hurd v. Ciiy qf Elizabeth, 41 N. J. L. 1; approved in Bank v.
McLeod, 38 Ohio St. 185, where the principal case was cited in support of the
proposition. In New York, a quasi effect zAay be given to the law of a for-
eign state as a matter of comity and interstate or international courtesy, when
the rights of creditors or bona fide purchasers or the interests of the state do
not interfere, by allowing the foreign statutory or legal transferee to sue for
it in the courts of New York, if the property is in that state. But the state
of New York will do justice to its own citizens, so far as it can be done, by
administering upon property within its jurisdiction, and will yield to oomi^
in giving effect to foreign statutory assignments only so far as may be done
without impairing the remedies or lessening the securities which the laws of
New York have provided for its own citizens: Matter qf Accounting qf Waite^
99 N. Y. 448, citing the principal case; Barclay v. Quicksilver M, Co., supra,
and numerous other cases. " From all these cases,*' said Earl, J., "the fol-
lowing rules are te be deemed thoroughly reoognized and established in thia-
state: 1. The statutes of foreign states can in no case have any force or effect
in. this state ex propria vigore, and hence the statutory title of foreign aik
aignees in bankruptcy can have no recognition here solely by virtue of the
foreign statute; 2. But the comity of nations which Judge Denio^ in Peter-
sen V. Chemical Bajsik, said is a part of the common law, allows a certain
effect here to titles derived under and powers created by the laws of other
countries, and from such comity the titles of foreign statutory assignees are
recognized and enforced here, when they can be without injustioe to our
own citizens, and without prejudice to the rights of creditors pursuing their
remedies here under our statutes; provided, ^Iso^ that such titles are not ia
eonfiict with the laws or the public policy of our state; 8. Snoh foreign aa>
810 Petersen v. Chemtcal Bank. [New York,
ngneet can appear, and, snbjeot to the oonditioiia abova mentioned, maintain
suits in oar oonrta against debtors of the bankrupt whom they represent^ and
against others who have interfered with or withhold the property of the
bankrupt": MaUer «fe. ^ WaUef supra. An action can be sustained by a
plaintiff in his own name in New York upon a judgment recovered by him
as administrator in a foreign state: NidioU ▼. SmUh, 7 Hun, 682, wlMre it
was said that in the principal case, referring to the opinion of Potter, J., not
here reported, a number of cases were cited where a foreign executor or ad-
ministrator might sue in his own name in the courts of New York. In
NkhoU y. Smithf SHpra, the principal case was quoted from; and it was said
that if the judgment sued upon in NkhoU v. Smith, supra, had been assigned
by the plaintiff, the assignee would have been entitled to recover in his own
name, within the authority of the principal case. Personal property has no
skiius or locality, except as it follows the owner's person. As to ite trans-
mission hUer ffivoSf or by testamentary authority, it follows the law appertain-
ing to the person of its owner: In Matter qf Estate cf Butler, 38 N. Y. 400.
The principal case was summarized in Stone v. Scripture, 4 Lans. 190.
PowKR OF Assignee of Exbcutor or ADMnnsraATOR to Sus a Forbioh
CoiTRTS. — rhe right of an executor or administrator himself to sue in foreign
courts, or in the courts of sister states, is discussed in an extended note to
OoodaU V. Marshall, 35 Am. Dec. 483, 490, on ancillary administration;
extended note to Molffneux v. Seymour, 76 Id. 668, 669, on jurisdiction of
foreigners and their property. The general rule is, that an executor or ad-
ministrator appointed in one state cannot prosecute or defend an acticm in
another state until he has taken out ancillary letters testamentary or of ad-
mimstration in the latter state:- Patterson v. Pagan, 18 S. C. 584; S. C, 3 Am,
Prob. Rep. 327; Leteis v. Adams, 7 West Coast Rep. 352; S. C, 8 Id. 197, to
the same point. But by statute in some of the states, executors or adminis-
trators appointed in other states are allowed to prosecute and defend suits in
the former states: DeAer v. fatton, 20 IIL App. 210; so, where they have
taken assets into the state in which they sue or defend: Matt^ qf WM, 11
Hun, 124; and they may sue in their individual names in foreign states
where the legal title to the claim or chose in action sued upon is vested in
themselves: Nichols v. Smith, 7 Id. 580; Saj^ord v. McCreedy, 28 Wis. 103;
Barrett v. Barrett, 8 Greenl. 353. The right of a foreign executor or admin-
istrator to assign or indorse so as to confer a right to sue in the local court
has been questioned: Steams v. BumJtnm, 5 Id. 261; Thompson v. WHaon, 2
N. H. 291; as being the necessary legal result of the doctrine that a foreign
executor or administrator could not himself prosecute any suit in that capa-
city in the courts of another state for the benefit of the testator, and therefore,
that he could transfer no such right to another: Steams v. Bumham, 5 GreenL
261. But this principle would not apply where the executor does not sue in
the right of the testator, but in his own right, although he claims under a
foreign will: Trecotluek v. Austin, 4 Mason, 16; nor where an administrator in
another state held in that capacity a negotiable note payable to his intes-
tate, and by him indorsed in blank before his decease; for the administrator
will be allowed to bring au action upon it in this state in his own name as
indorsee: Barrett v. DarreU, 8 Greenl. 353; nor where a foreign administrator
sues in his own name upon a note of the estate payable to bearer, although
it was transferred to his intestate daring the life of the latter, for he can
maintain the acticdi: Sa^ford v. McCreedy^ 28 Wis. 103; nor where a plaintiff
iiri:ig3 au action in his own name upon a judgment recovered by him as ad-
Liitiistrator in a foreign state, for it can 1)C sustained: Nicftols v. SnM, 7
March, 186fi.1 Tubivpikb Road Co. v. Loomts. . 811
Hun, 680l And ilia wdght of antliority la» iSbmt tha mwigniMt of an adiiifaii*
tstrator or ezeoator can maintain an action in Ida own nama in a foreign oonrl
or in the oonrti of a sister state: Leake r, (SHl^risi, 2 Dev. 73; Smith ▼. Ty*
fang, 16 Hnn, 602; Middkbrook r, Merekanta Bank, 3 K^yes, 135; a a, S
Abb. App. 295; Lowr. Bwrrowe, 12GaL 181; Smithy. Chkago etc S^yOd.,
23 Wis. 267; Parmme v. Lyman, 20 N. Y. 103. The law of the domicile
of the assignor controls and detenninee what is a sufficient transfer of a
cboee in action to authorize the assignee to collect the same: FuQer ▼. Steig'
afe^ 27 Ohio St. 355; 8. C.» 22 Am. Rep. 312. In determining the qnesticn
as to the power of an assignee of an executor or administrator to sue in a
foreign conrt, the simple question, and only one^ is, Has the chose in action
been assigned by a person having authority to make the assignment? Leahe t.
Oilchrint^ 2 Dev. 84. The American rule is to class foreign assignees under
bankrupt laws with foreign executors, administrators, guardians, etc.; and
it has been held that although a foreign assignee may be allowed to sue
in his own name in the courts of Connecticut as a mere act of courtesy, when
there is no adverse interest to be affected, yet it will never be allowed for
the purpose of defeating creditors, no matter where they reside, and espe-
cisUy if their attachments precede the assignment: Upton v. HMard, 78
Am. Dec 670.
Great Western Turnpike Road Co, v. Loomis.
[82 Naw York, 127.J
CouBTs BAVK PowsB TO Protict Witnzsses vbom Ibbelxtaht Absault
AND Inquisition.
Btrb7 Coubt uavino Original JunisDicnoN n Axtthgrizkd to Rsjior
Eyedinck on Imxatkrlal Issues, though objected to by neither party.
iNQumiBs ON Irbelsvant Topics to Discredit Witness may be Per-
lOTTED ON Trial, in the discretion of the judge; but cucli inquiries may
be excluded without infringing any legal right of the pjrLies.
QuBsnoN Which It is Alike Degrading to Answer or to Deolinb to
Answer should never be Put, unless, in the judgment of the courti
it is likely to promote the ends of justice.
In PBAoncE, Asking of Questions to Degrade Witness d Rboulatbd
by the discretion of the judge in each particular case.
Stbicixy Speaking, there is No Case in Which Witness is at Libebtt
to Object to QuEsnoN. That is the office of the party or the court
The right of the witness is to decline an answer if the court sustains his
claim of privilege. When the question is relevant^ it csnnot be excluded
on the objection of the party, and the witness is free to assert or to waive
his privilege; but when the question is irrelevant, the objection properly
proceeds from the party, and the witness has no concern in the matter,
unless it is overruled 1^ the judge.
Pabtt is not Bhtxtlkd to Abbweb to Inquibt Tending to DiaoBBDn
Wmnus, or to otherwise disgrace him, unless the evidence would bear
directly upon the issue.
Dovbt before Which Cause is Tried is Authorized, in Exerciss of
Sound Discretion, to Exclude Dlsparaoino Inquiries as to particu-
lar transactions irrelevant to the issue, tending to de>;rade tho witness,
or put for the avowed purpose of discroditi.ig him; auJ tlii.i may \w tlone
812 TuBiTPiKB Road Co. v. Loohib [New York^
upon the objection of the party wxthoat putting the witnen to his deiy
tum.
PlBPAKAOINO QUBSnOKS, KOT RSLBTAKT TO ISSXTS, A3n> POT TOR EXPRO^
PUBPOSB or DlBOKEDITINO WITNESS, OR OtHEBVISX BbORADINO HiX»
SHOULD BB Allowed, in the conrt's ezerciBe of a wise discretion, wheA
they will promote the ends of justice, bat excluded when they seem un-
just to the witness and uncalled for by the circumstances of the case.
Questions or DiSGBEnoN not Subjeot to Review. — The decision of th»
original tribunal, in admitting or excluding inquiries aa to particular
transactiona wholly irrelevant to the issue, and put for the avowed pur-
pose of disereditmg a witness, or otherwise disgracing or degrading him,
is not subject to review except in cases of manifest abuse or injustioe^
and the exclusion of such inquiries is no cause for reversaL
•
Action for the recovery of toll by the turnpike companj
against the defendant, who repeatedly passed the plaintiffs^
toll-gate, and refused to pay the rates prescribed by law.
Judgment for plaintiffs, which was reversed, on the ground
that the defendant was not permitted, on the cross-examina-
tion of the principal witness, to put questions irrelevant to the
issue, but tending to degrade the witness, the avowed purpose
of the inquiries being to show that he was unworthy of credit.
The questions were excluded as irrelevant, on plaintiffs' objeo^
tion, without any claim of privilege by the witness. The
judgment of reversal was affirmed, and plaintiffs appealed
from the judgment of affirmance in the supreme court.
8. r. FairchUdy for the apx)ellants.
D. W. Cameroriy for the respondent.
B7 Court, Porter, J. If the judgment of the court below
be upheld by the sanction of this tribunal, it will embody in
our system of jurisprudence a rule fraught with infinite mis-
chief. It will subject every witness who in obedience to the
mandate of the law enters a court of justice to testify on an
issue in which he has no concern to irresponsible accusation
and inquisition in respect to every transaction of his life
affecting his honor as a man or his character as a citizen.
It has heretofore been understood that the range of irrele-
vant inquiry, for the purpose of degrading a witness, was sub-
ject to the control of the presiding judge, who was bound to
permit such inquiry when it seemed to him, in the exercise of
a sound discretion, that it would promote the ends of justice,
and to exclude it when it seemed unjust to the witness, and
uncalled for by the circumstances of the case. The judgment
now under review was rendered on the assumption that it is
the absolute legal right of a litigant to assail the character ^9t
Jlarch, 1865.] Turnpike Road Co. v. Loomis. 818
«yei7 adverse witness, to subject him to degrading inquiries, to
make inquisition into his life, and drive him to take shelter
under his privilege, or to self-vindication from unworthy im-
)>utation8 wholly foreign to the issue on which he is called to
testify.
The practical efTect of such a rule would be to make every
witness dependent on the forbearance of adverse counsel for
that protection from personal indignity which has been hitherto
secured from the courts, unless the circumstances of the par-
ticular case made collateral inquiries appropriate. This rule,
if established, ¥dll be applicable to every tribunal having origi-
nal jmisdiction. It will perhaps operate most oppressively
in trials before inferior magistrates, where the parties appear
in person, or are represented by those who are free from a sense
9f prafeesional responsibility. But it may well be questioned
whether, even in our courts of record, it would be safe or wise
to withdraw the control of irrelevant inquiry from the judge,
and commit it to the discretion of adverse counsel. The in-
terposition of the court has often been necessary to protect
witnesses from the rigor of examinations conducted on the
supposition that they were entitled to such protection. When
this power of protection is withdrawn, is it to be expected that
counsel, deeply enlisted for their clients, and zealous to main-
tain their rights, would feel bound to exercise toward witnesses
a forbearance which the courts themselves refuse?
There is much diversity of opinion even among eminent
members of the profession as to the measure of obligation im-
posed upon counsel by the implied pledge of fidelity to the
client. This could not be more strikingly illustrated than by
the atrocious but memorable declaration of one of the leading
lawyers of England on the trial of Queen Caroline, "that an
advocate, by the sacred duty which he owes his client, knows, in*
the discharge of that office, but one person in the world, — that
client, and none other. To save that client by all expedient
means, to protect that client at all hazards and cost to all
others, and among others, to himself, is the highest and most
unquestioned of his duties; and he must not regard the alarm,
the suffering, the torment, the destruction, which he may bring
upon any other ": 1 Brougham's Speeches, 63. Such a propo-
sition shocks the moral sense, but it illustrates the impolicy
of divesting the presiding judge of the power to protect wit-
nesses from irrelevant assault and inquisition. From the
nature of the case, he is in a position and frame of mind more
3U TuBNPUUB BoAD Co. V. IxKMas. [New York,
favorable ihan that of ooonsel to arrive at a safe and impartial
conclueion. The balance of justice should be held as steady
and even between the witness and the parties as between the op-
posing litigants, and the rights of neiUier should be committ^
to the absolute discretion of counsel.
It is believed that the practice on this subject which has
heretofore prevailed in this state rests on sound principle, and
is abundantly fortified by authority. Its propriety seems to
have been always recognized in the English courts, and the
judges have never hesitated at nisi privs to exercise a liberal
discretion in the admission or exclusion of irrelevant inquiries
tending to degrade the witness, according to the varying cir-
cumstanoes under which the ofier was made.
No better illustration of this can readily be found than is
furnished by a comparison of three of the reported decisions of
Lord Ellenborough, *Hhat great master of the law of evidence,"
as he is designated by Phillips and Boscoe. In the case of
Frost V. HaUaway [not reported], the bearing of the witness was
such that he not only permitted an inquiry whether he had not
been tried for theft, but threatened to commit him if he refused
to answer the question: 1 Phill. Ev., Cowen and Hill's ed.,
283, note. In the case of MiUman v. Tucler^ Peake Ad. Cas.
222, when a witness was asked by Lord Erskine if he had not
been imprisoned for forgery, he gave permission to the witness
to answer the question if he felt it due to himself, but advised
him not to do so, and declared that if he himself had been
asked such a question, he should have refused to answer ''for
the sake of the justice of the country, and to prevent such an
cxaminatioD." In the case of Rex v. LewiSy 4 Esp. 226, the
prosecutor was asked, on cross-examination, if he had not been
in the bouse of correction. Lord Ellenborough at once inter-
.posed, and prohibited the inquiry, on the ground that wit-
nesses engaged in the discharge of a legal duty should not
be subjected to improper investigation.
In the leading case of Spencdey v. De WillotU 7 East, 108,
as in the case at bar, the disparaging question was overruled,
without any objection by the witness, or any claim of privilege.
In that case, as in this, the avowed object of the defendant's
counsel was to discredit the witness. The defendant's counsel
declared it to be their purpose to avail themselves of the
answer if affirmative, and if negative to contradict the witness.
Lord Ellenborough excluded the question, on the ground that
it called for an answer which, if affirmative, would be irrele-
March, 1865.] Tuhhpikk Road Co. v. Loohis. 815
▼ant, and if Degative, would not be open to contradiction. At
his instance, for the purpose of setting the practice at rest,
the decision was reviewed on bill of ezoeptionSy and the ez«
elusion of the question was sustained by all the judges.
Since that decision we find no case in the English courts in
which a new trial has been granted for the exclusion of dis*
paraging questions, irrelevant to the issue; though since that
time, as before, the judges at niri priua have continued to
exercise their discretion by permitting such collateral inquirieSi
when the ends of justice seemed to demand it, and in all other
cases excluding them in justice to the witnesses. The exist-
ing rule on that subject in England is undoubtedly that stated
in the note subjoined to the report of the case of Bez v. Pitcher^
1 Car. & P. 85. ''In practice, the asking of questions to de-
grade the witness is regulated by the discretion of the learned
judge in each particular case." Such has been the practice in
this state hitherto, and it has received the sanction of the
general term in the fifth judicial district, in the case of the
present plaintiff against Phillips, which was precisely similar
to that now under review.
The judgment in. the present case was rendered on the au-
thority of a recent decision in the sixth judicial district, in the
case of People v. Blaldy, 4 Park. Cr. 176. That is the only
case found in our state reports in which a judgment has been
reversed on the ground of the exclusion of inquiries as to par-
ticular transactions, tending to degrade the witness, but wholly
irrelevant to the issue. A careful and deliberate examination
of the question, aided by the learned and able opinion deliv-
ered in that case, has failed to bring us to a conclusion in har-
mony with that of the court below.
Much confusion and conflict in the treatment of this subject
is apparent in the English text-books, as well as our own.
This is mainly due to the fact that the question usually arises
only at niei prius. The rulings of the judges, in different
"ases, being on a mere question of practice at the trial, are not
he subject of review, and are necessarily acquiesced in by the
larties. The decisions in these, as in all other cases, resting
n mere discretion, have been, of course, inharmonious, accord-
ng to the views of different judges and the varying circum-
stances of the cases in which the question was presented,
f he text-writers, as well as the judges, differ in their views as
to the rules which should control the exercise of this discre-
tion,— some being predisposed in favor of the liberal allow*
816 Turnpike Road Co. v. Loomis. [New York,
ance of irrelevant crimination, and others preferring the prac-
tice of rigid exclusion. Thus two writers as acute and dis-
criminating as RoBCoe and Peake cite, respectively, Harris
y. Tippettj in 2 Camp. 638, and that of Spenceley v. De WiUott^
in 7 East, 108, as authority for propositions in apparent an-
.-tagonism. Roscoe regards those cases as establishing the rule
^.that qnestions not relevant may be put to the witness for
•the purpose of trying his credibility ": Boscoe's Crim. Ev. 181.
Peake quotes the same cases, as superseding his elaborate dis-
cussion, in tiie text of the first edition of his work, as to the
Tight to put such questions, and adds, that '^as it may now be
considered as settled that matters wholly foreign to the cause
cannot be inquired into &om the witness himself, those argu-
ments are now reprinted in the appendix": Norris's Peake,
204.
But when we reflect that both authors, in what they wrote,
had in view the existing practice of England, by which the
limits of collateral examination were under the ccmtrol of the
presiding judge, the seeming conflict disappears, and their re-
spective conclusions harmonize with each other, and with the
cases on which they rest. It is entirely true, as affirmed by
Roscoe, that inquiries on irrelevant topics, to discredit the wit-
ness, may be permitted on the trial, in the discretion of the
judge; and equally true, as affirmed by Peake, that such in-
quiries may be excluded without infringing any legal right of
the parties. The writers on evidence have endeavored to aid
the courts in the exercise of this discretion, with such results
as they supposed to be deducible fiom the various decisions at
nisi priua; but from the nature of the case no fixed rule could
be devised defining the right and limiting the extent of irrele-
vant inquiry which would be just or safe in universal appli-
cation.
The opinion in the case of People v. Blahelyj 4 Park. Cr. 176^
rests mainly on prior decisions in our own courts, which, when
examined and classified, do not seem to us to uphold the
present judgment. In several of the cases cited the question
did not arise. In one of them the discrediting evidence was
received, and its admission was held to be no ground for re-
versal: Howard v. City Fire Insurance Co.j 4 Denio, 502. In
another, the witness answered the disparaging questions, and
a new trial was granted, on the ground that tiie party calling
him should have been permitted to give general evidence in
support of his character for truth: People v. Bedor^ 19 Wend.
March, 1865.] Turnpike Road Co. v, Loomib. 317
669. In a third, the witness claimed his privilege; the judge
held that he was not bound to answer, and the court sustained
his decision: People v. Mather^ 4 Id. 229 [21 Am. Dec. 122].
In four of the cases cited, the exclusion of the discrediting
evidence was .held to be erroneous; in neither of them did the
witness claim his privilege. In each, the proof offered and
rejected was adjudged to be material and relevant to the issue:
Jackson v. Humphrey^ 1 Johns. 498; Southard v. Rerford, 6
Cow. 254; People v. Abbot, 19 Wend. 192; People v. Bodine, 1
Denio, 281. None of these decisions tend to sustain the
proposition that the exclusion of inquiries as to particular
transactions, wholly irrelevant to the issue, for the purpose of
degrading the witness, is cause for reversal by any appellate
tribunal.
That the witness was under no obligation to answer the
questions propounded in the case at bar is settled by the de-
cision of this court in the case of Lohman v. People, 1 N. Y.
380, 385 [49 Am. Dec. 340]. It is there expressly adjudged
that the party is not entitled to an answer to an inquiry tend-
ing to disgrace the witness unless the evidence would bear
directly up<Hi the issue. If, therefore, the defendant in this
case had any cause of complaint, it was, not that he was de-
prived of an answer to which he was entitled in law, but that
he was deprived of the benefit of an irrelevant fact, the truta
of which does not appear, and which, if true, the witness was
under no obligation to disclose. The office of a court of review
is to correct errors in law prejudicial to the appellant. If the
answer was not matter of legal right, the question could prop*
erly be excluded, unless it* was relevant to the issue.
But it is: said that a» the question tended to degrade the
witness, he alone could take the objection. Strictly speaking,
there is no case in which a witness is at liberty to object to a
question; that is the office of the party or the court. The
right of the witness is to decline an answer, if the court sus-
tains his claim* of' privilege. When the question is relevant;
it cannot be exduded on the objection of the party, and the
witness is free to assert or to waive his privilega But when
the question is irrelevanty the objection properly proceeds from
the party, and the witness' has no> concern in the- matter, un-
less it be overmled by the< judge.-
The* preoise iseae is^ whether- Hm- court) befon:* wfaioh the
cause' is- tried is^ aiiithariBed> inrtbe* exerctSQ of w sound dis^
ereMony t<y^ exoindb- ibqidries asi to^ pactiaulai' trafieaotionSi.
318 Turnpike Road Co. v. Loomib. [New York,
Irrelevant to the ifisne, and tending to degrade the witneaSy on
the objection of the party, withont putting the witnees to hia
election. On this point, we understand the decision in the
case of Ward v. PeopUj 8 Hill, 895, to be controlling and de*
dsive. Ward was indicted for larceny. On the trial, the
prosecutor was asked, in the course of his cross-examination,
whether he had not himself stolen the property which he
alleged to have been stolen from him by the prisoner; the
question was excluded, on the objection of the district attor-
ney. The conviction was sustained in the supreme court, on
the ground that* if the question had been permitted, the wit-
ness would not have been bound to answer it; and even if it
had been answered affirmatively, the fact would have been
immaterial to the main issue. The court of errors affirmed
the judgment, on the specific ground that, though the witness
had not claimed his privilege, the objection was properly sus-
tained, as the inquiry was irrelevant to the issue: Ward v.
PecpU, 6 HiU, 144, 146.
Every court having original jurisdiction is authorised to
reject evidence on immaterial issues, though objected to by
neither party; and if it were otherwise, it would be a reproach
to the administration of justice: Coming v. Comifij|f, 6 N. Y.
97; People v. Lohman^ 2 Barb. 221. If, however, the question
were res nova, we should have no difficulty in arriving at the
same conclusion. The practice which has heretofore prevailed
in this respect has been satis&ctoiy to the community, the
bench, and the bar. Questions of this nature can be deter-
mined nowhere more safely or more jusUy than in the tri-
bunal before which the examination is conducted. Justice to
the witness demiuids that the court to which he appeals for
present protection shall have power to shield him from indig-
nity, unless the circumstances of the case are such that he
cannot fairly invoke that protection. If the range of irrele-
vant inquisition be committed to the discretion of adverse
counsel, it will be no reparation of the wrong to the witness
that the judgment, in which he has no concern, may be after-
wards reversed by an appellate tribunal.
It often happens that leading questions become appropriate
in the course of a direct examination in eliciting fix>m hostile
or unwilling witnesses facts material to the issue. It hap-
pens often, too, that the appearance and deportment of aa
adverse witness — his prevarication, reluctance, or apparent
bias« the intrinsic improbability of his testimony or its in-
L
March, 1865.] Tubufiks Road Co. v Lookul 819
oongruity with known fa/ctB — make it the plain duty of the
ooort to pennit searching and disparaging inquiries on mat*
ters irrelevant to the issnOi for the purpose of aiding the jury
in a collateral inquiry as to his credit In each of these, as
in other like cases involving mere questions of practicei order,
and decorum, the right and the duty of decision are wisely
committed, in this state, as in England, to the sound discre-
tion of the court in which the trial is conducted. Unless
there be a plain abuse of discretion, decisions of this nature
are not subject to review on appeal.
The proposition that no witness has a right to complain of
«n opportunity to vindicate his integrity by his own oath is
plausible and specious, but illusory. It ignores the indignity
of a degrading imputation when there is nothing in the cir*
cumstances of the case to justify it. It ignores, too, the hu-
miliation of public arraignment by an irresponsible accuser,
misled by an angry client, and shielded by professional priv-
ilege. Few men of character or women of honor oould sup>
press even on the witness-stand the spirit of just resentment
which such an examination, on points alien to the case, would
naturally tend to arouse. The indignation with which sudden
and unworthy imputations are repelled often leads to injurious
misconstructionT A question which it is alike degrading to
answer or decline to answer should never be put, unless, in the
judgment of the court, it is likely to promote the ends of jus
tice. A rule which would license indiscriminate assaults on
private character, under the forms of law, would contribute
little to the development of truth, and still less to the further-
ance of justice. It would tend neither to elevate the dignity
of our tribunals nor to inspire reverence for our system of juris-
prudence.
lu the case now under review, there was no conflict in the
evidence. The witness was neither a stranger nor a volun-
teer. The facts to which he testified were not only probable
in their nature, but within the personal knowledge of the
party against whom he was called. No attempt was made
to contradict him. There was nothing in his testimony or
the relations he sustained to the parties to deprive him of the
benefit of the ordinary presumptions in favor of good char-
acter and good fSedth. If the disparaging questions had all
been answered in the affirmative, the jury would not havs
been justified in discrediting his evidence on the facts ma-
terial to the issue. But they were wholly irrelevant, and were
820 Tubupike Road Co. v. Looms. [New York,
properly excluded on the triaL The judgment of the supreme
court and the oounty court should be reversed, with costs, and
the original judgment should be affirmed, with an order for
restitution.
Judgment reversed, and that of the justice's court affirmed.
IbBBLKYAIVT A2ID IlOCATSRIAL TsSTIMOirr SHOULD BB EXCLUDSD: HoPCIf
T. Chaae, 83 Am. Dec. 614; Marshall ▼. Honey, 59 Id. 92; Swwueoi Maekme
Co. y. Walker, 55 Id. 172, and note 176; note to Abney v. Ringdomd, 4A Id.
498; Budd ▼. Brooke, 43 Id. 321; note to CrenOiow ▼. Davenport, 41 Id. 58|
even on croas-examinAtion: State ▼. WhUOer, 38 Id. 272.
QuBflnoNS WiTNxas rbed kot Answsb: People v. fferriek, 7 Am. Deo.
364; Chamberlain v. Willaon, 36 Id. 356; Ward ▼. State, 22 Id. 449; State ▼.
Edwards, 10 Id. 557; CommonxoeaUk v. Shaiio, 50 Id. 813; Lohman ▼. Peopk^
49 Id. 340, and note 346; Fries y, Bmgler, 21 Id. 52, and extended note thereto
55-62, on privilege of witneaa, and in which the principal ease ia cited on page
59. Isi State Y. Edwards, 10 Id. 557, it is held that it is for the witnen, and
not the court, to judge whether hia answer to a question will tend to crimi-
nate him; but in Ward v. StaU, 22 Id. 449, it is held to be a question for the
court. If a witness has disclosed part of a transaction in which he ww
criminally concerned, without claiming his privilege as a witness, he is than
bound to go forward and state the whole: Btaie v. Foster, 55 Id. 191, and
note 194; FotUr ▼. Pkret^ 59 Id. 152, and note 153; (kmmojxsDeaUk v. Prks^
71 Id. 668.
Examination of Wmneasis n Reoulatid nr Sohs Considsbablm Ds-
QBXE BT DiBOBsnoN ov CouBT: Twmeff v> Stalls, 47 Am. Dec 74.
Quiigi'iuJB OF DoossnoN abb hot SuBJBcr TO Revixw: Cmmmmgs i\
QnM, 79 Am. Dso. 629; when no abuse of discretion is cUdmod: Wimstamn
MmaesoiaekL, JR.JLCo^n Id. 519, and note 522.
Tbb FBDfOiPAL GA8B WAS CXTBD in oach of the following authorities, and
to the point stated: Where testimony is material to the issue, the witness
cannot refuse to answer on the ground that his testimony will tend to dis-
grace him: Taylor v, Jennings, 7 Bobt. 585; Miidge ▼. Gilbert, 43 How. Fh
221. But inquiries on iirelevant topics, to discredit or diagraos a witness*
and the extent to which a course of irrelevant inquiry may be pursued, are
matters submitted to the sound discretion of the trial court; and the exer-
cise of that discretion is not the subject of l^gal review, except in cases of
plain abuse and injustice: Peel v. Kern, 6 Hun, 298; La Bean ▼. People, 34
N. Y. 230; S. C, 33How.Pr.76; 6 Park. Cr. 894, to the same point; Greion
V. Smith, 33 Id. 250; Hannah v. MeKeBip^ 49 Barb. 344; Hardy v. Norton,
66 Id. 531; Carpenter v. Halsey, 57 K. Y. 658; White v. McLean, 57 Id. 671;
8. C, 47 How. Pr. 198; Hdnoff v. State, 37 Ohio St. 182; West v. Lynch, 7
Daly, 247; Real v. People, 55 Barb. 678; S. C, 8 Abb. Pr., N. S., 322, 3S7, to
the same point; Hinds v. Page, 6 Id. 62; Cdnaday ▼• Srwn, dZ N. Y. 74|
People y. Oyer and Term. Gb. </ i^ F., 83 Id. 460; Blossom v.. BasreU, 37
N.Y.437; Wroa v. 3iai$i 20 Otuo St. ^71;, King y. Ness York Cent. etc. B. B.
Co., 72 N. Y. 611; Marker. King, 64 Id. 630; Brandonv. People, 42 Id. 267,
269; CUy, qfSatUh Bend v. Hardy, 98 Ihd. 585. And the judge* may exclude
neh inquiries of liis own motion, without potting tiicwitnees to faiB pnviligei
Leo ^ Okadeey, 3 Abk App. 61; S. O, 2 KflQpos, IM7 ; . 8 Id. 2»b . tor tiw smbo
paintk B«4th«9BBoipdl€Ma]«irbM»i^iiBaieailiattlM.li0a<iBUwkiflh.
BCarch, 1865.] Ti7|knpike Boad Co. v. Looms. 321
prerenti a reeord from being proved by parol rMte in the diieretion of the
eoort: Real v. People, 8 Abb. Pr., N. S., 327. While a cnMS-ezamination is
within the control of the oonrt, it mnet relate to mattere pertinent to the
iasne, or to specifio facts which tend to discredit the witness or to impeach
his moral character: People v. Ojfer and Term. Co. qf N. F., 83 N. T. 460;
Whte V, McLean^ 67 Id. 671. And a oonrt in its discretion may check a cross-
examination as to collateral matters: WkUe ▼. McLean, 47 How. Pr. 197.
But facts which show the motive and temper of the witness in the particular
transaction in question are not collateral, and the witness may be asked as
to them on cross-examination; Nation v. People, 6 Park. Or. 262. A prisoner
may properly be asked as to his gnilt or innocence of a crime^ bnt he may
claim his privilege: SiaU v. People, 21 Hun, 402; Shepard v. Parker, 36
N. Y. 518; Maine v. People, 9 Hun, 118; CUs^ qfSoiah Bend t. Hardy, 98 IncL
583,686.
Inquibt ok Collatxral avd Ibiublbtaiit Matter iob Pubposs or Di&*
OBEDITDIO WiTNEBS — EXTKNT TO WhICH It MAT BK CaBBDED, AND HOW
CoNTROLLXD. — The extent to which a witness may be cross-examined upon
otherwise immaterial facts, for the purpose of showing his bias or of testing
his credibility, is ordinarily a matter of discretion, to the exercise of which
no ezoeption lies. He may be asked questions on cross-examination which
will tend to diagrace and degrade him, thereby affecting his credibility,
though such inquiries be upon irrelevant topics; and this course of irrelevant
xaquiry being a matter submitted to the sound discretion of the trial courts
the exercise of that discretion is not the subject of legal review, except in
cases of plain abuse and injustice: See extended note to Friee v. Brvgler, 21
Am. Dec. 69, on privilege of witness where answer has direct tendency to
degrade him; Leikman v. PeopU, 1 N. T. 379; S. C, 49 Am. Dec 340; Com-
fmemeBM v. Lydm, 113 Mass. 462; MuOer v. iS^ XoHw H. Au\ 5 Ma App.
300; & C, 73 Mo. 242, to the same point; La Bean v. People, 34 N. Y. 223;
& C, 33 How. Pr. 76; 6 Park. Cr. 394^ to the wnaam point; Peel v. Kem, 6
Hun, 298; Qrekm'f.amUh,^lSl. Y. 250; Hannahv. McKelUp, 49 Barb. 342;
Hardpy. Iimton,MieL 627, 631; Carpetdery. Haleep, 67 N. Y. 668; Wesiy.
Syne^ 7 Daly, 247; Seal v. People, 65 Barb. 678; & C, 8 Abb. Pr., N. S.,
322, 327, to the same point; Binds v. Page, 6 Id. 02; BUmom v. Barrett, 37
K. Y. 437; Canocfay v. JEram, 83 Id. 74; Peopk v. Oyer and Term. Co. qf
N. r,, 83 Id. 460; Khg v. New York etc R. R. Co., 72 Id. 611; Marke v.
XSng, 64 Id. 630; Brandon v. People, 42 Id. 267; Sk^pard v. Parker, 36 Id.
518; Stape v. People, 21 Hun, 402; Maine v. People, 9 Id. 118; Wroe v. State,
SO OIno St. 461, 471; Banagf v. SkUfy 37 Id. 178, 182, 188; Adriance y. Amat,
Jl Ma 471; Comeliuey. CanmamoeaUk, 15 K Mon. 539; HaU v. ^tote, 40 Ala.
4»8; Bemer v. MMtnaeki, 2 Sweeny, 582; StaU v. Daeidmm, 67 N. C. 119;
StaU V. WUVmgham, 33 La. Ann. 537; State v. Ortgory, 33 Id. 737; King v.
AOxne, 33 Id. 1057; Baker y. Trotter, 73 Ala. 277; (hittereon v. Morae, 68
K. H. 165, ^irtiere a large number of cases is dted; New QUmoeater v. Bridge
ham, 28 Ma 60; Joneey. M^NeO, 2 Bail 466; Comrnomoealih v. Shaw, 4 Gush.
503; StaU v. Bemwr, 64 Ma 267; People v. McKeOer, 53 CaL 66; Ryan y.
People, 79 M. Y. 601, dinenting opinitm of Folger and Karl, JJ. And the
weight of authority, what little these is, is that, on cross eramination, a wit-
neas may be compelled to answer any questions which tend to test his crsdi-
hility, or to shake his credit by injuring his chsraoter, however irrelevant to
the fiaets in issoe, or however disgraceful the answer may be to himself,
eseept where the answer would eoEpose him to a criminal charge: MuUer v,
A. Lamie HoepUai Am'n, 5 Ma App. 890; a U, 73 Ma S48; State y. Patiet^
An. Dm. Vol.. Lxxxvm-a
822 TuBNPiKS Road Co. v. Loomis. [New York|
mm, 2 Ired. 810; 8. 0.» 88 Am. Dm. 609; EaU t. State, 40 Ala. 608; Kbig ▼.
iltttiub 83 La. Ann. 1057; CU^ qf 8<mA Bmtd v. Hardp, 9S Ihd. 684; note to
Frk$ ▼. BmgUr, 21 Am. Dbo. 60l Bat while irrelevant qnestionB maj be
pat to a witneai on Ida croBa^camination, with the view of obtaining bom
him oontradiotory or inoongiatent answera, and thne» in one aense^ impeach*
ing and deatroying his credit^ they cannot be aiked with a Tiew to caUing
other witneeses to contradict Ida answers, and in this manner to discredit his
testimony: /ones t. M'NeU, 2 Bail 466; Radford t. Rkx, 2 Der. ft B. 80;
PeopUr.McKeOer, 63 Gel 65; People t. BeU, 63 Id. 119; 8!om ▼. Sdwarde,
61 Md. 89; NatkM v. People, 6 Park. Cr. 258; Seaog r. DeaAom, 19 N. H.
861; ComdtMt ▼. CcmmomoeaUh, 16B. Mon. 639; Lawremx t. Badber, 6 Wend.
801; JfoRS ▼. Bell, 48 Ala. 407; Iron Mamiiain B€aiir. MwrdoA, 62 Ma 70;
Stale T. Beimer, 64 Me. 267; Dome t. Robf, 64 Id. 427; CkmJbe r. WmcJuetUr,
89 N. H. 18; 8. C, 76 Am. Dec 203. The witness's answer is ooncfaisiTe:
Ba^oirdv. Rioe,2J>m. ftB. 39; CormBwr.OcmmoiinMalA, 16& Mon. 630;
Pwpley. ifdreOn-, 63 OsL 65; PwpUy, Be/A 63 Id. 119; JfacUmv. Awiler,
62 Iowa» 603» citing the. principal esse, but not following it
Bat sU the cases do not hold that a witness may be dispsnged on cross-
examination by being asked and reqnived to answer abnoet any question, on*
less the snswer might snbject him to indictment^ or to a penalty nnder a
statate: Staler. DaMmm, 67 N. O. 110; so it has been heUL that a witness
cannot be asked a coUatezal question not relevant to the matter in issoe^
barely to test his credibility: (kttonfe r. WiMe^, 2 QalL 61; HObnok r.
I>oi9,12Qray, 857; Sodmdsif v. MeOee, 6 J. J. Marsh. 621; Madden y. Koetter,
62 Iowa, 692; cr which will, if answered in the affirmative^ diignoe or de-
grade him: Lohmm t. PwfU, 1 K. T. 879; & a, 49 Am. Dec 840; UfMoi
Stalee t. WhUe, 6 Grsneh O. O. 73; Umied Stateev. WMte, 6 Id. 467; Jfotes
T. People, 0 Hon, 118; In re Lewie, 80 How. Pr. 166; or lor the porpose of
testing Ids moral sense: Cfommomwealth t. Shaw, 4 CNish. 608; and that the
witness need not answer why he declines to answer the qnestions: Jfcrfanl
V. Cnteoom, 60 Ind. 214. While disparaging qnestions not relevant to the
issne may be pot to a witness for the porpose of aflbcting his general credit,
they most relate to his own acts or declarations, and not to the acts or
dedsrations of others: Benwr v. JfsMiacU; 2 Sweeny, 682; HammoX ▼. ifo-
KelHp^ 40 Barb. 844 It is in the discretion of the ooort to interfere and
protect witnesses upon cross-examination, firom irrelevant interrogatoriee
tending to impute crime, or to disgrace or diMsredit them: State t. SUipke,
47 N. H. 113; VaintM t. Sooarrae, 8 Abb. Pr. 302. An abase of the praotioe
of patting izrelevant questions on oross-examination, for the porpoee of
impairing the credibility of a witnees, is guarded against in two modes:
1. By the privilege of the witness to decline to answer any question which
may disgrace him or may tend to charge him as a criminal; 2. By the
power of the court of its own motion to prohibit an unreasonable or oppress
ive croes-examination: Brandon ▼• People, 42 N. T. 267; Skepard t. Porter^
86 Id. 618; ITroe ▼. State, 20 Ohio St 460^ 471; ffanoffr. State, 87 Id. 181.
Where, upon the trial of an indictment, the defendant offers himself aa a wit*
ness, and testifies in Ids own behalf he thereby subjects himself to the same
roles of cross-examination, and may be called on to submit to the same tests
as to his credibility as may be legally applied to other witnessee: Hanqfr,
State, 87 Id. 178, containing a valui^le dtscussion of late esses, especially
those of Kew York; People t. MoOungill, 41 GaL 420. But although a per-
son on trial for a criminal offense by taking the stand as a witnees may sub-
ject himself to the rules applicable to other witnesses he is not thereby
March, 1865.] Tubiipikb Road Co. v. Loomis. 32S
dflprired of his ri^ti as a party; liia ooniiflal may speak for him whila ha ia
a witness^ and an error committed by the eoort against him may innie to hia
baefit at a party: Siaier. i^ 68 Ind. 845; Peopkr. Bfwm,72Il. T. 67L
The emss-eraminatinfi in sneh case should in general be limited to mattsra
pertinent to the issae^ or sneh as may be proved by other witnesses: People t.
BrtMPR^ sMpni. In this case, one of fofgery, the prisooer Iras asked, "Hoir
many times have yon been airestsd?" This was objected to by coansel,iipoa
the ground that it tended to degrade the witness, and he was prhril^ged frooa
answering. The objection was overroled. Held, error; that the objectiom
was Talidy was properly taken by the priaoner^a eownsel, and that the excep-
tion to the ruling was available to the prisoner as a party. Said Church, C./.t
'^B^pedally ooght the protection of the eoort to be aflbrded to persons on.
trisl for criminal oflensss, who often, by a species of moral oompnlsum, ara
ioroed open the stand as witnesses end being thsn^ are obliged to mn tha
gaantlet of their whole livea on cross ■eraniinififln, and every immorality, vioe^
or crime of which they may hare been gnUty, or saspected of being gnilty, ia
broog^t ont^ ostensibly to albpt credibiUty, bat practioatty need to produce a.
conviction for theparticolar dfonse for which the aocosad is being tried, vpoA
evidence which otherwise would be deemed insoffident Smcharesoltismani-
lastly nnjost^ and evei^ protection ahoold be aflbrded to gnard against if
It haa latsly been held in New York that a witness may be ssked oo
rinwB STimination irrelevant qnestions in the disorstion of the eoort as to
sollateral tranaaotunis which aflbct his charaeter either for troth or veracity,
er his moral charaeter, bat not soch as do not have that eflbot: Miftm ▼•
Peefie, 79 K. T. 888; containing in the briefii of ooonsel a vdnminooa col->
lectUQ of oases; People r. Orapo, 76 Id. 288. In Rpam v. People, 79 Id. 5^
the witness was asked ''whether he had been indicted." Ghnroh, a J.,
in rendering the opinion of the eoort; held that the mare teak that a wit>
aeas had been indicted coold not Intimately tend to discredit him or im»
psaeh his moral charaeter, and that the evidence was incompetent. Bat
Fdger and Barl, JJ., dissented, and held that the allowance of qoeetiona
en cmas eviminatinn of a witness, as to his having been indicted, was in the
discretion of the coort^ as they sapposed was the settled law of New York.
And in People t. Crapo, 76 Id. 288, upon the trial of an indictment for bar>
^ary and larceny, the prisoner, on cmss-eTamination, was aaked if he had
not been arrestsd on a charge of bigamy. This was objected to^ and the
objection overruled. Ghnroh, O. J., in rendering the opinion of the ooort^
held, Fdlger and Earl, JJ., dissenting, the ruling to be error; that it did
not Intimately tend to impair the credibility of the witness, snd was in-
sompetent for any porpoee. In this ease his honor said that the old rala
not to allow irrelevant qoestions to accosed persons would be preferable and
more in acoordanoe with aoond prindples of justice. In C«^ qf South Bend
V. Haardy, 96 Ind. 683» 684, the following rules are laid down by Black, com*
nussioDer: " If the snswer to a question propoanded to a witness would fur>
aish a link in the chain of evidence which would convict him of a crime^
snd if he cUim his privilege, he ii not bound to answer, whether his sn-
swer wimM he material snd relevant or collateral and irrelevant to the inue.
but wheiv the auswer would thus tend to expose the witness to a criminal
charge, if it lie material and relevant to the iame, the privilege belongs to
the witueM aloue^ and must be claimed by him; the objection cannot be in-
terposed by a party, but the witness, advised of his privilege, will be per-
mitUMl to auiiwer, if he chooeee to do so. If the answer would tend merely
to tiegratie the obaracter of the witness, and if it be relevant and material
824 Damatnvtllb v, Mann. [New York,
to the issue, whether it ironld go to his credibility or not, he may not d»<
dine to answer, and a party cannot object. If, however, the answer to a
question on cross-examination would lye collateral and irrelevant, and would
merely disgrace the witness, but would not affect his credibility, the witness
may decline to answer; the court should in all such cases sustain an objection
made by Counsel, and the court may, without objection made, interpose and
protect the witness from the impertinence. If the cross-examinatioa tends
merely to disgrace the witness, but relates to a collateral and independent
fact, and goes clearly to the credit of the witness, whether in such case he
has the privilege to decline or not; the matter so far rests in the discretion-
of the trial court that in the absence of a claim of privilege, if the question
relate to a matter of recent date, and would materiaMy assist the jury or the
court in forming an opinion as to his credibility, the court will usually re-
quire an answer over the objection of counsel, but may sustain an objection.
When the answer would tend to criminate the witness, but would be col-
lateral and irrelevant to the issue, and yet would affect his credibility, if
he do not claim his privilege, no distinction, so far as the discretion of the
court and the right of a party to call for its exercise by an objection are
concerned, can be perceived between such a case and one differing from it
only in that the answer would merely disgraoe the witness. In shorty where
the question relates to a particular act which is collateral and irrelevant to
the issue, it is proper for a party to object^ and it is within the sound disore*
tion of the court, where the witness does not exercise a privilege to decline,
to permit an answer, if by affecting the credibility of the witness it will>
subserve justice, or to sustain the objection, if such purpose vnll not be pro-
moted by the answer; and if the answer would not affect the credibility of
the witness, the court should sutam the objection, and has no diserstion to
admit the evidence."
Damainvillb V. Mann. Abbioan v. Mann.
Sams v. Same.
rm NBW TOBK, 197.1
ItoANT IN PoBSiSHON OF EifTiBB Prsuses, aa Absxonsi of undmdsd
two-thirds interest of term crested by lease reserving rent, is liable te
the owners of the reversion in fee for the entire renk His co-tenant out
of possession is not liable.
AasiONEs OF Lbsses of Tkrm is not Liabls for Rbnt, on Gbound of-
Pbivttt of Estatb only, unless such assignee is in possession of the
demised premises; for there is no privity of estate where- the assignee is
not in the actual possession; and whenever he parts with his interest^
t<^ther with the possession, his liability ceases.
BsNT MAT BK Affortionbd whsu the demised premises are held by seversl
assignees of the term in several parts, for it is a common chai|^ upon all
the parts.
Bmkt mat bb Afpobtionbd where tiie demised premises are held by ssveni'
assignees as tenants in oommon» and who are in actual pnsHWssisn
Bbmt cannot bb Affobtionbd where one- co-tenant is out of piMsnssinn hr
fact, and the other is in possession of the entire premises. The Isltst
must pay it.
March, 1865.] Damainvillb v. Manh. 826
Plaintiffs were the owners of the reversion in fee of cer*
tain premises in the city of Buffalo, twenty feet in width from
the terrace to the canal, demised by L. Le Couteulx to Josiah
Trowbridge for the term of thirty years from May 1, 1S35,
The lease bore date August 22, 1838, at the annual rate of
$100 for the first ten years, $125 for the second ten years, and
$150 for the last ten years, payable half-yearly. In 1840 the
lessee died, leaving a will devising the premises to his son,
W. B. Le Couteulx. The latter died in July, 1859, having
devised the premises to his wife Charlotte for life. On Jul^r
31, 1861, she died intestate, after the rent in controversy had
accrjed, and the plaintiffs, as her representatives, brought
these actions. No question was made as to title, or upon the
amount of rent due. The defendant, during the accrual of
the rent, was the owner and assignee of an undivided two
thirds of the unexpired term, and in the actual occupation
of the whole premises, by title derived from the assignees of
Josiah Trowbridge, of such two thirds, while Israel T. Hatch,
during the time the rent accrued, was the owner and assignee
of the other undivided third part of the same unexpired term,
by deed of assignment also from the assignees of Josiah Trow-
bridge, but was not, during the accrual of the rent, in the pos-
session of the demised premises, or of any part thereof. The
defendant conceded his liability to the plaintiffs to pay two
thirds of the rent claimed, and served upon the plaintiffs, pur-
suant to the provision of the code, an offer to allow judgment
to be entered against him for that amount, with the cost9,
which the plaintiffs declined to accept. Upon these facts the
court below rendered judgment in favor of the plaintiffs for
the whole of the rent claimed, and the defendant appealed.
The cases were identical in all respectsj except the names and
number of the plaintiffs, and involved the same identical
principles.
Mann and Rodman^ for the appellant.
Nichols and RobbinM, and A, P. Nichoh^ for the respondents.
By Court, Brown, J. The liability of the assignee, however
remote, of an unexpired term for years or for life, to pay the
lessor and his assignees and representatives the rent of the
demised premises, does not seem to be open to dispute, al-
though the principle upon which the liability rests is involved
in some obscurity. When we learn that the common-law
relation between the assignees of the lessee and the lessor and
826 Damainvills v. Haiin. [New York«
his aflsignees is not privity of contract, but privity of estate,
we make bat little progress. For notwithstanding some con-
flict amongst the earlier cases, we shall find that this relation
alone, unless it also implies possession of the demised prem-
ises by the assignee, is not enough to create the obligation to
pay the rent.
In Eaton ▼. JaqueSy 2 Doug. 454, the term had been assigned
by way of mortgage, with a clause of redemption, and the
action was by the lessor against the defendant as assignee of
one Denys, the original lessee; and it appeared the mortgage
had become forfeited, but the mortgagee had never been in
possession of the demised premises. The court held that
even after forfeiture the lessor could not recover against the
mortgagee, because he had not taken the actual possession;
possession in fact as well as in law of the demised premises
were deemed necessary conditions to maintain the action. I
shall liave occasion to refer to this case hereafter.
The next year the case of Walker v. Reeves^ 2 Doug. 461.
came up for consideration. The question arose upon a de-
murrer to the plaintiff's replication, and the court. Lord Mans-
field giving the opinion, said: "By the assignment, the title
and the possessory right passed, and the assignee became pos-
sessed in law. As to actual possession, that must depend
upon the nature of the property whether it can take place.
It might be waste or unprofitable ground, as seemed to have
been the case. The case was by no means like Eaton v. Jaquea^
9upray for the assignment there being a mortgage, from the
nature of the transaction, it was not an assignment to this
purpose; it was a mere security. Until the mortgagee called
for his money, the mortgagor was to remain in possession and
pay the interest, and it was not understood by either party
that the mortgagee should pay the rent."
This reasoning, I submit, is anything but satisfactory. The
question was upon the legal effect of the deed of assignment,
whether it per se imposed the obligation to pay rent or not.
The nature of the demised premises, whether they were waste
or profitable or unprofitable, or what the parties intended
touching the payment of the rent, had, I submit, nothing to do
with the determination of the question of the effect of the deed.
Whenever default was made in the payment of the money se-
cured by the mortgage, the legal estate, by the English law,
Ijocnme vested absolutely in the mortgagee, and he was, in every
respect, the assignee of the term, and if be was not liable for the
March, 1865.] Damainyiixb v. Mamk. 827
payment of the rent, it was not because the lands wen waste
and unprofitable, or for any parol understanding between tiiwi
and his assignor, but simply because he had not the actual
possession of the subject out of which the rent was to issue.
This is the principle of the decision in Walker v. Reeves^ ^upra^
disguise it as we may by a multitude of words.
Assignees in bankruptcy are also vested with the possession,
in law, of the bankrupt's estate as lessee of an unexpired term.
Yet it has been determined that they were not liable for the
payment of the rent when they had not taken the actual pos-
session, though they had advertised the demised premises for
sale, stating themselves to be the owners thereof: Turner v.
Rickardeonj 7 East, 335. Some of the judges assign as rea*
sons for their judgment that the assignees did not assent to
the assignment to them, which was necessary to bind tbem.
This seems illogical and unsound, for if the advertising of the
property for sale, claiming to be the owner, with the right to
convey the title, is not signifying their assent to the assign-
ment to them, it is difficult to say what act would signify their
assent. The true ground of the decision was stated by Mr.
Justice Grose. It should have been left, he said, to the jury
to say whether the defendants were in fact possessed of the
premises, and as it is plain from the evidence that, finding
they were of no value, they never did enter into possession,
and in the true sense of the issue the defendants were not
assenting to the assignment of these premises to them.
Stevenson v. Lombard^ 2 East, 575, was an action of cove*
nant by the lessor against the assignee of the lessee for non*
payment of a year's rent; plea, as to rent for half a year,
claimed eviction during that time of a moiety of the premises
by title paramount; to this there was a demurrer. The court
decided that the assignee being chargeable on the privity of
estate,- and in respect of the land, his rent is, upon principle,
apportionable, as the rent of the lessee is. And there was
judgment for the plaintiflf upon the demurrer, with leave to
the defendant to amend and plead the eviction from a moiety
of the premises by title paramount to one moiety of the rent.
The plea, it will be observed, was adjudged bad, because it
was offered as a defense to the entire claim, while the recovery
and the eviction alleged was only of a moiety. It was not a
mere recovery, but a recovery followed by an eviction or an
actual dispossession of the defendant from a moiety of the de«
Diised premiBCS.
828 Damainvillb v. Mann. [New York^
The case of Merceron v. Dowsofij 5 Bam. & C. 479, as a quee*
tioD of pleading, followed that just referred to, LitUedale, J.,
Baying: ^^If the defendant meant to discharge himself from
all liability beyond one sixth or one third, he should have
ooniined his plea to so much of the action. There may be
difficulty in saying the defendant should have pleaded in
abatement, for he might not know the tenants in common with
him."
There are a variety of cases referred to in Wood&U's Land-
lord and Tenant, 850, to show that where the assignee who as-
signs over the term is liable to covenant for rent during his
enjoyment, and if covenant be brought, he may plead that be-
fore any rent was due he granted all his term to I. S., who, by
virtue thereof, entered and was possessed, and this will be a
good discharge, without alleging notice of the assignment. In
one of the cases, it was suggested by BuUer, J., that the repli-
cation of fraud in the deed of assignment would be effectual
only when the assignor continued in the possession.
In Astor v. Miller j 2 Paige, 68, the chancellor, in the opin-
ion, says: ''Where a covenant which runs with the land is
divisible in its nature, if the entire interest in different parts
or parcels of the land passes by assignment to separate and
distinct individuals, the covenant will attach upon each par-
cel pro tanto. In such case, the assignee of each part would
be answerable for his proportion of any charge upon the land^
which is a common burden, and would be exclusively liable
for the breach of any covenant which related to that pari
alone." He quotes Shep. Touch. 199, and Ca litt 885 a»
He adds: ''It may, therefore, be considered now the settled
law in England, that a mortgagee of leasehold premises is lia-
ble to an action on the covenants in the lease, although he has
never been in possession of the estate, or received any benefit
therefrom; but I apprehend such a principle cannot be sus-
tained here. In the English courts of common law the mort-
gagee is still considered the owner of the estate, and the
mortgagor only his tenant: Partridge v. Bere^ 1 Dowl. & K.
272. In this state, the mortgagee out of possession is consid-
ered, at law as in equity, as having nothing but a chattel in-
terest in the estate, and the mortgagor, for every substantial
purpose, the real owner." In England, the mortgagor being
regarded as the tenant of the mortgagee explains the reason
on which the latter is deemed liable for the rent, the posses-
sion of the mortgagor being in fact his own possession.
March, 1865.] Damainville v. Mann. 329
Sergeant Shepherd, a reliable authority upon the law of real
property, in his argument in Webb v. RusaMj 3 Term Rep.
893, said: ''There are three relations at common law which
may exist between the lessor and the lessee and their respect-
ive assignees: 1. Privity of contract, which is created by the
contract itself, and subsists forever between the lessor and the
lessee; 2. Privity of estate, which subsists between the lessee
or his assignee in possession of the estate and the assignee of
the reversioner; and 3. Privity of contract and estate, which
both exist where the term and the reversion remain in the
original covenantors." The learned author of the Touchstone
thus holds that possession of the estate by the assignee is
requisite to create the relation of privity of estate between him
and the lessor. Indeed, I am unable to comprehend how the
relation can subsist upon the assignment alone, without an
entry by the assignee. He may have acquired the title by
proceedings in invitumj by sale under an execution or decree
of foreclosure, and been unable to obtain the possession. The
relation which creates the obligation to pay the rent could
hardly be said to exist under such circumstances.
For these reasons, I am led to the following conclusions:
that there is no privity of estate where the assignee is not
in the actual possession, — constructive possession is not
enough; that whenever the assignee parts with his interest,
together with the possession, his liability ceases. When the
demised premises are held by divers assignees of the term, in
several parts, the rent, which is a common charge upon all
the parts, may be apportioned amongst them, according to the
extent of their several shares. And where the demised prem-
ises are held by several assignees as tenants in common, being
in the actual possession, there also the rent may .be appor-
tioned, and each of them charged with a ratable amount
thereof.
The present case does not fall within either of these cate*
goriee. Here the defendant Abijah Mann, Jr., is the owner
of two undivided third parts of the demised premises for the
unexpired term as assignee of the lease, and is in the actual
possession of the whole; while Israel T. Hatch is in like man-
ner the owner of the other undivided third part, as assignee
of the lease, but is not in the possession and enjoyment of
the demised premises, or of any part thereof. Together they
have acquired and hold the entire interest of the original les*
see, not as joint purchasers, but by separate deeds of assign*
330 Damainville v. Mann. [New York,
ment| one of them having two thirds, and the other one third,
Abijah Mann, Jr., having the exclusive possession, and taking
to Us own use the proceeds and profits of the property. We
are to determine whether this does not impose upon him the
legal obligation to pay the rent
If I am right in what I have said, Israel T. Hatch is under
no obligation to pay the rent, or any part of it. The material
element of possession in fact is wanting in respect to him.
If the one-third part of the rent which should proceed from
the share assigned to him cannot be recovered from his co-
owner, who has the exclusive possession, it cannot be recov-
ered at all. This simple proposition is, I think, decisive of the
whole question. For concede that Hatch is not liable, then
we have this strange anomaly, to wit, his co-owner and as-
signee, who claims under the lease reserving rent, and under
nothing else, taking to his own use that which is really and
truly the property of the landlord, without any legal responsi-
bility to him. Rent signifies a return or compensation issu-
ing yearly out of lands or tenements corporeal, and it. is the
essential condition upon which the lessee or his assignee is
suffered to enjoy the possession and take the proceeds to his
own use, that he shaU pay the rent reserved in the deed under
which he holds.
The question we are considering was incidentally alluded
to by Tindal, C. J., in Curtis v. Spitty, 1 Bing. N. C. 756,
which was an action for rent against an assignee, the defend-
ant in his plea traversing the averment in the declaration
that all the estate in the premises had vested in him. The
jury found the defendant was assignee only of a part of the
premises, and judgment was ordered for the defendant upon
the issue. The judge said: '' The action, depending as it does
upon the privity of contract being transferred to the assignee,
by reason of the privity of estate, — that is, by reason of the
plaintiff being the landlord and the defendant the tenant of
the same land, — opens a very nice and difficult question, not
settled by any decision in the books, so far as we can ascertain;
namely, whether there exists a privity of estate in respect of
the whole land by an assignment of a part only." It appears
from the report of the case that the part of the premises as-
signed to the defendant was one third, assigned in severalty,
and there was no claim that he occupied more than this third
part. I attach no inconsiderable weight to the observations
of Mr. Justice Buller in EaUm v. Jaques^ 2 Doug. 454, at
March, 1866.] Damainvills v. Hamh. 881
Bhowing the principle upon which the liafailitj of the aasignee
rests.
'' Why is it said that the lessee for years is liable without
entry? Because the rent is due by him in respect of the con-
tract. But an assignee is only liable in respect to the thing
enjoyedi and therefore the present case is more like that first
put in BeUasia ▼. Burbrieky 1 Salk. 209, viz., the case of a lessee
at will, who is only liable in respect to his occupation. I do not
agree with Mr. Ward, that if even the assignment was abso-
lute, the action would lie without the possession; there is no
instance. The distinction between a naked right and the
beneficial enjoyment is founded in sound reason. And there
are authoritieB in Danver's Abridgment, tit. Rent, where the
court declared that the ground upon which assignees are made
liable is, because they have enjoyed the rents and profits. I
do not wonder there are no old cases on this subject But the
question here being whether mere nominal assignees with the
naked right, or only substantial assignees in the actual enjoy-
ment of the estate, shall be liable to the action; I think only
those of the last description are liable." This argument ap-
plies with peculiar force to the case of the assignee of an un-
divided share, who is in the exclusive possession of the whole,
taking the rents and profits to his own use. He may be said
to be, in theory as well as in fact, possessed per my et per tout
of his own part as well as of the whole; his co-owner being in
respect to the landlord a mere nominal assignee in the enjoy-
ment of no beneficial interest, doing nothing and deriving
nothing from the estate from which duties or obligation to the
former can be implied; while the assignee in possession has
ull that is useful or beneficial issuing out of the lands, and
should, upon the most obvious principles of justice be required
to pay the rent reserved as the condition of his enjoyment.
I have not been able to find any reported case which deter-
mines the question involved, and it is not without some hesi-
tation that I adopt the conclusion that the judgments in the
court below should be affirmed.
Judgment affirmed.
AssioinB OF Lsasu, LuBniiTr or, iob Rbht: Seo OkUd$ ▼. Clark, 49
Am. Beo. 164» and note 170; note to Van lUnmUur ▼. JemU, 61 Id. 278;
WailY. Hinda^Mld. ^;JohnmmY, Shermam, 76 Id. 481; note to Van JUtu-
•doer ▼. Bradley, 46 Id. 456.
Abszonxs of Lessxx ab to Pabt of PmnmiiH, LEABnjTr of: Vam Am»
9diurr. Bradlqf, 46 Am. Dao. 461.
332 Stikson v. New Yobk Central R. R. Co. [New YoriL,
APFOBnoKKnnr or Rxni; QmnajoStYi Linton ▼. Hartf 64 Am. Dec. 691;
extended note to CuMeH v, Kuhn, 31 Id. 517-^22; Nellia v. Lathrop, 34 Id.
286. Bent will be apportioned where part of the premises are assigned: Van
HensselcuT ▼. Bradley, 45 Id. 451, and note 456.
Citations of Principal Cass. — A naked right and a beneficial enjoy-
ment are distangoishable: TaSiman y. BruloTt 66 Barb. 379. In Babcoek v.
Seomlk, 56 BL 462-467, the principal case was considered to be a departore
from the eommon law so far as it held an entry into possession necessary to
create a liability to. pay rent on the part of an absolnte assignee in fact; and
tlie conrt held, in accordanoe with what they ooncei^ed to be the oommom-
law rale, that it was nnnecesssry, in order to sabject an absolnte swiigniw In
fact of a tann of yean to a liability to the lessor for rent that snch lesignae
shenld hava sntarod into posseorion of the demised premises.
Stinson V. New York Cbotbal B. R. Co.
m Knw YOBX, S88.J
Hazdi, 8io Utirs Tiro vr Aldenux non L^DAfl^ applied.
Duty Which Railboab Ookpasy, in BIanacmekkkt of its Tbaxnb, Own
TO Shiffer of Fbeiqht while loading his property in one of the com-
pany's cars, under authority from the latter, is the exercise of that ordi-
nary care which every man owes to his neighbor, to do him no injury by
negligence while both are engaged in lawful pursuits.
iUiLROAB Company in Niw Tobk has Powxs to Gontraot that Pkbp
sons Kidino Fbeb must do so at their own risk of personal injury from
whatever cause.
Action to recover damages for negligently causing the death
of plaintiff's intestate, Poplin Stinson. Verdict for plaintiff
for two thousand five hundred dollars. The judgment was
afi&rmed on appeal to the supreme court. Plaintiff proved on
the trial that deceased and bis son-in-law, Simon James, were
returning from New York to Suspension Bridge with six
horses, two of which belonged to deceased, and the others to
James; two buggies, one belonging to each; and several other
articles of property, which they wished transported from
Albany to Suspension Bridge. On July 3, 1860, arrange-
ments were made with the freight agent of defendant at
Albany to ship the property early the following morning on a
train which would leave about 1, p. m. James and the deceased
went to the freight-house about nine o'clock of the morning of
the 4th, where defendant had provided a car for said property,
then standing on one of its tracks adjacent to and opposite
the door of its freight-house, through which the property was
to be loaded; and the defendant's workmen were there to
assist in loading the same. The horses had been put on, and
March, 1865.] Stinbon v. New York Central R. R. Co. 338
James and the deceased were in the act of moving one of the
buggy bodies in the car to give more room for other articles.
To do this, James took hold of one side of the body in the car,
and deceased stood partially in the car door with one foot in
the freight-house and the other in the car, in a stooping pos-
ture, having hold of the other side of the buggy body. De«
ceased had just said to James, ** Say when you are ready,"
when the cars and engine of defendant, which were backing
down on the track, struck against the car with such force as
to move it some seven feet, throwing James over and upon one
of the buggies, and catching deceased between the car and the
freight-house, rolling him along some seven feet, and causing
his immediate death. Defendant's men had been gone from
the freight-house about five minutes when the collision oc-
curred. No notice whatever was given to the deceased or
James of the approach of any train. The space between the
freight-house and car was from nine to eleven inches. On
defendant's part, evidence was given in conflict with some of
these facts, and tending to disprove negligence on its part;
but none to show that any notice or signal of the approaching
cars was given, except that the engineer testified '' that on
starting he supposed he rang his bell, from the fact that it was
the custom and practice to do so continually." The employees
of the company had been discharged, because the day was a
holiday. The deceased was found dead in an upright posi-
tion, his head even with the top of the car between the grate
door of the ear and the building, with one foot through the
grate door, which door nearly closed the doorway of the car.
Defendant also read in evidence an agreement signed by
James and the station agent, purporting to^be made between
the company and James, and which recited, in substance, thai
in consideration that the company would transport for said
James six horses at reduced rates, said James would take the
risk of injuries which the horses might receive from any cause
while being transported. It also contained the following pro-
visions: '^And ift is farther agreed that the said S. James is to
load, transport, and unload said stock at his own risk, the
said New York Central Raifroad Company furnishing the
necessary fctbofers to assist. And it is further agreed between
the parties hereto that the persons riding free to take charge
of the stoek do so ait their own risk of personal injury from
wlnleyer eaiUBe.*' Defendant mov^ for a Boaemt^ on the
grmmd fliat deeeasad eame to his death l^hisownBegligeiioei
33 1 Stinbon v. Nbw York Cshtbal R. R. Co. [New York«
and because the contract between the parties in reference to
the use of the car released the defendant from all liability.
The motion was denied. The defendant asked the court to
charge that under the evidence the defendant was exonerated
from all responsibility for the injury; and that deceased must
have been without fault, and the ne^^ligence of defendant's em-
ployees such as would have rendered them liable to indictment.
These charges the court refused to give, but did charge the jury
that the release in the contract did not diield the defendant from
an action for negligence and neglect if guilty of negligence and
neglect which caused the death of deceased, and deceased was
himself free from feult, negligence, and neglect; also, that in
order to make defendant liable in this case, the deceased must
have been without feult himself, and free from any negUgenoe,
wrongful act, neglect, or de&ult on his part contributing or
tending to contribpte in any manner to the injury, and de-
fendants and its employees must have been guilty of negli-
gence and wrongfril act, neglect, or de&ult causing the death
of deceased. Defendant excepted to these charges and rulings
and the refusals to charge as requested; also to the charge
given in the oinnion.
A. P. Lafimng^ for the appellant.
Cyrui E. Daw^ for the respondent
By Court, Davis, J. The motion for nonsuit, on the ground
that deceased came to his death by his own negligence, was
properly denied. He was lawfully engaged in loading the car.
The contract required him to do this, the defendant furnishing
laborers to assist The engine and train that caused his death
were not in sight from the car or freight-house where he was
at work. The train was not to leave for some hours, and there
was nothing to indicate that extraordinary vigilance was de-
manded at his hands; nor was there any evidence to show any
want of ordinary care in the manner in which he performed
his work. So far as the evidence on the part of defendant
tended to show any negligence by deceased, the question was
put to the jury, in proper form, by the court
The question of defendant's negligence was also a proper
one for the jury. The freight dispatcher gave the signal for
the train to back down for the car which deceased was load-
ing, without ascertaining that the lading was completed, and
without giving the slightest notice or warning to the persons
about the car. It was his duty, I think, to have seen to it
March, 1866.] Stinbon v. Nkw Yobk Cxhtsal B. B. Oa 836
before he ordered the train to be backed down that the per-
eons engaged in loading were not expoaed to injury. The
evidence tended also to show that the train approached with«
out ringing the bell or sounding the whistle, and with force
sufficient to drive the standing car back several feet, while
crushing the deceased between it and the walls of the freight-
house. The case was not, therefore, one to be taken from the
jury on the question of negligence in any of its aspects. The
court gaye to the jury correct instructionB as to the degree of
negligence requisite to charge the defendant. It was not
cecessary that the negligence should be of a character that
would render the servants of defendant indictable for crime.
But it is insisted that the contract between the parties in
reference to the use of the car released the defendant from all
liability. Two clauses of the contract are relied upon as pro-
ducing this result: 1. That which provides that James is ^' to
load, transship, and unload said stock at his own risk." The
risk here provided for is of that injury to which the property
ia or may be exposed in process of loading and unloading. In
respect to those acts, the contract devolves all responsibility
on the shipper, as prindiuJ, in performing them, treating the
laborers frimidied by defendant as his assistants. The risk of
personal injury from the animals themselyes, or from his man*
ner of loading or unloading them, or from any negligence of
his assistants in doing those acts, is thrown upon him by the
contract, because he is made the principal in performing them
for his own benefit But by no sound construction can this
clause of the contract be held to include personal injuries
which the party may sustain from external causes, produced
by the negligence of defendant An injury caused by negli-
gently running a train of cars upon him, over which he has no
control, while he is carefuUy performing the labor he is au-
thorized to do, is not at all witUn the scope or meaning of this
clause of the contract. 2. That which provides '^ that persons
riding free, to take charge of the stock, do so at their own risk
of personal injury, from whatever cause.'' The power of the
company to make this contract must be conceded, under the
late decisions of this court on that subject: BuM v. New York
Central R. IL Co., 25 N. Y. 442; Smith v. Same, 24 Id. 222.
The fruits of this rule are already being gathered, in increas-
ing accidents, through the decreasing care and vigilance on
the part of these corporations, and they will continue to be
836 Stinson V, New Yobk Central R. B. Co. [New York,
reaped until a just Benso of public policy shall lead to legisla-
tive restriction upon the power to make this kind of contracts.
But it is clear that the rule referred to has no application to
this case. The intestate was not ^' riding free, to take charge
of the stock." The journey had not commenced, nor had the
train been formed that was to make it. He was in no sense a
passenger ^^ riding free," or otherwise; that relation had not
begun if it was designed to exist. There was nothing to show
that deceased would have the right to ride free, or that he
was the person contemplated to do so. The contract entitied
no one to ride; it simply stipulated for a contingency, which
was, that if any person should ride free, to take charge of the
stock, he should take all risks of personal injury while on the
passage. It appears from the cases above cited that a ticket
is issued to the person so riding, evidencing his right to ride
without pay, and specially subjecting him to the risk of per-
sonal injury. The person thus riding may be the owner of the
property, or any agent of his; and to him, whenever the trip
commences, the contract applies.
The only relation, therefore, upon the facts of this case, ia
which the deceased stood to the defendant, was that of a ship*
per, loading his own property in one of defendant's ears, by
authority from defendant. And the duty the company owed
to him in the management of its trains was, the exercise of
that ordinary care which every man owes to Ms neighbor, to
do him no injury by negligence, while both are engaged in
lawful pursuits, — a duty which begins and ends in the
maxim, Sic utere tuo ut alUnum non lada».
The charge of the court, '^ that the contract did not cover
the risk occasioned by collision with another train," had ref-
erence to the particular collision that oansed the death of the
intestate, and was therefiore not erroneous. In my opinion,
the judgment should be afiirmed.
Judgment affirmed.
EbcxMPnoN OF PASsxNoia Cabbub ibom LuBnjrr bt OonTaAcns q9
Freb Passaos: See Perhina ▼. New York Cent, B, B. Co., 82 Am. Deo. 282;
and extended note thereto 290-295; Biaaeliy, New York CenL B, B, Ob., 82
Id. 369, and nnmeroos citatioiis in note 379; Ohh etc B. B, Co, ▼. Muhlhgp
81 Id. 336; Toddv. OldCoUmyeic B. B. Co., 80 Id. 49.
OiTAXioiis OF FumxFAL Case. — An mdividnal tnasported over tba roots
of a cairier of paeaengera may debar himaelf, by a oontraet founded npon a
tofficient conaideration, from any claim to damages for injnziea to hia peraoa
or property occasioned by the negligenoe of anch corporation daring the
eonrae of tranaportation. Such a oontraet^ howevor» to be binding upon a
June, 1865.] Hoffman v. Mrs a Fibb In8. Co. 337
party, must be made by him or by some one authoruEed to act in his behalf.
Snch authority may sometimes be implied from certain contract relations ex-
isting between the parties, as between master and servant, or principal and
agent; bnt no snch implication can arise when the relations of the parties are
rsgolated and defined by statute: SeyboU v. New York etc. B. B, Oo,, 95 K. Y.
673. The principal case was distinguished in Poucher v. New York CenL
B. B. Co,, 49 Id. 265; see also Blair v. Brie B*y Co., 66 Id. 317. The remarks
of Davis, J., respecting "the fruits of the rule " in the principal case were
quoted in an extended examination of cases in Baiiroad Co. v. Lockwood, 17
WalL 368, where it was held that a passenger carrier could not stipulate to
exempt himself from responsibility for the negligence of himself or his ser-
vants; and that this rule applied to the case of a drover traveling on a stock
train to look after his cattle, and having a free pass for that poipose.
Hoffman v. Mtna Fire Insubanob Company.
[82 Naw TOBK, 406.]
Bnaor ow Usual Pboviso AOAiysr Sales in Pouoies of Ihsubanoi that
the policy shall be null and void " if the said property shall be sold and
conveyed " is not to forbid sales in the regular course of business, or con-
veyances made by the owners, as between themselves, as where the in-
terest insured is that of a merchandise partnership, bnt only sales of
proprietary interests by the parties insured to third persons. The object
of snch a clause is to protect the company from a continuing obligation
to the assured, if the title and beneficial interest should pass to others,
whom they might not be equally willing to trust.
Ihsdbanox OS Stock of Fluotuatino Goods to Certaut Amouivt covers
goods of the same character and description successively in store.
Ih ConSTRUIKG CoiniLACT, WOBDS ABE NOT TO BE TaKSN IN BbOADEST
Sense if they are equally appropriate in a sense limited to the object
and intent of the contract.
If Languaqe of Pbouisob ib Capable of Dottblb Interpretation, it is
to be interpreted in the sense in which he had reason to suppose it was
understood by the promisee.
That Ck>NSTRUcTioN of Worbs in Contract bbould be Adopted Whigb
is Most Beneficial to Promiseb, if it is doubtful whether given words
are used in an enlarged or a restricted sense, and other things are eqnaL
CoirDinoNs and Provisos are to be Construed Stricttlt AOAnvar Uk-
derwritebs, as they tend to narrow the range and limit the force of the
principal obligation.
CoETRAcrs Providing fob Disabilities and Forfeitures are to bi
Striotlt Construed against those to be benefited thereby when the in-
tent is donbtfnl.
BvERT Intendment is to be Made against Construction of Executed
Conteaot under which it would operate as a snare.
Action on a policy of insurance for six thousand dollars,
issued in February, 1861, to Hoffman, Place, & Co., of New
York, and covering their stock of merchandise, including not
only their own goods, but those held by them in trust or on
AM. Db& Vol. LXXXVin-29
838 Hoffman v. Mtna Fibe Ins. Co. [New York,
commisaion, or sold but not delivered, in their brick and
marble store in Broadway. Among other things, the policy
contained a printed proviso that it should be null and void "if
the said property shall be sold or conveyed." In February,
1862, the insurance was renewed, and on March 7th follow-
ing, one of the partners, Silvernail, retired from the businesai
selling out his interest to Hoffman and Place, by whom the
business was continued. With the written consent of the in-
surance company, Hoffman and Place subsequently removed
the business and stock to their new brick and marble store in
Duane Street. On April 9th the loss occurred. The company
declined to pay, and this action was brought. Verdict for the
plaintiffs. The judgment was affirmed on appeal, and this
appeal was from that decision. On the trial, the principal
questions of law raised were, whether the transfer avoided the
policy, and if not, whether goods afterwards added to the
stock were within the protection of the policy.
John H, Reynolds^ for the appellants.
Orosvenor P, Lowrey, for the respondents.
By Court, Porter, J. The weight of judicial authority in
this state is against the doctrine that a policy issued to a
firm is forfeited by a transfer of interest as between the par-
ties assured. As a contrary opinion has prevailed to some
extent, it may be well briefly to retrace the history of this
question in our courts.
It first arose in 1840, on the trial of the case of McMasten
V. Westchester Mut, Ins. Co., 25 Wend. 379. The policy was
issued to McMasters and Bruce; evidence was given tending to
show that the interest of Bruce in the partnership property
was assigned before the loss to McMasters. At the circuit
it was held by Judge Ruggles, as matter of law, that such a
sale by one partner to another would not relieve the insurers.
The plaintiffs recovered, and a new trial was denied; but it
did not become necessary to consider this question on review,
the jury having found specially that the interest was not in
fact transferred. The case of Howard v. Albany Ins, Co., 8
Denio, 801, was decided in 1846, and turned on a mere ques*
tion of misjoinder arising on a demurrer to the defendants'
plea, that before the loss one of the plaintiffs transferred to the
other his interest in the property insured. It was held that,
under these circumstances, a joint action could not be main-
June, 1865.] Hoffman v. JEtna Fire Ins. Co. M9
tained by the original parties; and from this decisiou Chief
Justice Bronson dissented.
The case mainly relied on by the appellants is that of Muv'
dock v. Chenango Mutual Ins, Co., 2 N. Y. 210, decided in this
court in 1849. It did not involve the question now under dis-
cussion. The property insured was a building owned at the
date of the policy by the plaintiffs as tenants in common;
Garrett afterwards conveyed to Murdock, the other plaintiff,
his undivided half of the property; the company indorsed a
consent in writing to the conveyance, with a stipulation that
the policy should remain good to Murdock as sole owner
of the property. Under a special provision in the charter of
the company, this gave the grantee, as the sole party in in-
terest, a right to maintain the action in his own name, —
equivalent to that now given by the general law to the real
party in interest: Laws of 1836, p. 314; Id., p. 42, sec. 7. The
building was afterwards destroyed by fire, and an action was
brought in the joint names of Murdock and Garrett. It was
claimed by the defendants, and adjudged by the court, that
the misjoinder of Garrett was fatal, as he had no interest in
the action. Mr. Hill, who argued the cause for the defend-
ants, insisted that, as Murdock was the sole owner at the time
of the loss, the action might and should have been brought
by him alone. No question was made, and under the stipu-
lation indorsed on the policy none could be made, as to the
liability of the company to Murdock for the entire loss, unless
absolved from it on other grounds. Opinions were delivered
by judges Cady, Strong, and Jewett, all holding the mis-
joinder to be fatal. The opinion of Judge Strong was put on
the specific ground that Murdock succeeded to all the rights
of Ghirrett, and the action should therefore have been brought
in bis own name. Judge Cady conceded that it was not ma-
terial to inquire whether Murdock might not have maintained
an action in his own name. The observations on this ques-
tion in the course of his opinion are, therefore, not to be
regarded as views expressed by the court, but as the obiter
dicta of the learned judge. They are entitled to high con-
sideration as the views of an able and eminent jurist, but they
have not the controlling force of authority.
In 1850 the direct question now involved was first discussed
and decided in the supreme court: TUlou v. Kingston Mut. Ins.
Co,, 7 Barb. 570. The policy in that case had been issued in
1842 to the firm of Tillou, Doty, and Crouse; m 1844 it was
840 Hoffman v. ^tna Fibe Ins. Co. [New York,
assigned by them to one Ketchum, with the written consent of
the company, as security for the payment of a mortgage on the
premises; subsequently, and before the loss, Grouse, without
the consent of the company, sold his interest in the property
to the other two partners. It was provided by law in the act
of incorporation that any policy issued by the company should
become void upon the alienation, by sale or otherwise, of the
property insured: Laws of 1836, p. 44; Id., p. 466. The action
was brought in the names of the original parties, for the bene-
fit not only of the assignee of the policy, but also of the then
owners of the property. The court adjudged that a sale by one
joint owner to another of his interest in the property insured
was not a cause of forfeiture within the intent and import of
this provision; they also held (the decision in Murdoch v. Che^
nango Mut. Ins, Co., 2 N. Y. 210, not having then been re-
ported) that the recovery could be sustained not only for
the amount due to the assignee of the policy, but also for the
surplus due to the owners. When the case came before this
court on appeal, tho judgment was sustained to the extent of
the interest of the assignee, who, in virtue of the consent of
the company, was entitled to sue in the names of the original
parties, as the action was commenced before the adoption of
the code. The judgment was, of course, modified by striking
out the excess recovered by the owners; as it had been settled
in the case of Murdoch v. Chenango Ina. Co., auproy that to the
extent of their claim the misjoinder of Grouse as a plaintiff
was a fatal ground of objection. The opinion of the court> de-
livered by Judge Foot, shows the modification to have been
made on the authority of that decision. Through an over-
sight, such as occasionally happens in all reports, the point of
the decision was misapprehended in the note of the case on
which the appellants rely: Tillou v. Kingston Mut, Im. Co., 6
N. Y. 405; Grosvenor v. Atlantic F. & M. Ins. Co,, 5 Id. 399.
The precise question was again presented for judgment in
1853, in the case of Wihon v. Oenesee Mut. Ins. Co., 16 Barb.
511. The insurance was on the mercantile stock of Dixon &
Co., a firm in Michigan, consisting of A. H. Dixon and Samuel
O. Goss; shortly afterward the firm was dissolved; Dixon
succeeded, by purchase, to the interest of Ooss, and continued
the business on his own account down to the time of the fire.
The action was brought by Wilson, to whom Dixon subse*
quently assigned the claim. Two defenses were interposed;
the first wa0, that the policy was forfeited by the trana&r from
June, 1865.] Hoffman i;. Mtka Fire Ins. Co. 841
•
one partner to the other of his interest in the property insured;
the other was, that it was forfeited by Dixon afterwards ob-
taining a further insurance on the goods, without the written
consent of the company, though such a consent was obtained
from their local agent in Michigan. The court overruled both
defenses, and held that the policy was not forfeitcJ, either by
the sale made by the retiring partner, or by the subsequent
insurance effected by his successor in interest, with the con-
sent of the Michigan agent. The case was heard in this court
on appeal in 1856: 14 N. Y. 418. The counsel for the defend-
ant insisted, as a principal point, that the sale by one partner
to the other avoided the policy, and cited the cases of Howard
V. Albany Ins. Co,^ 8 Denio, 301, Murdoch v. Chenango Ins.
Co., 2 N. Y. 210, and TUlou v. Kingston Ins. Co.^ Mfpro, as
authorities supporting the proposition. Judge Comstock, who
delivered the opinion of the court, did not deem it worthy
even of a passing notice, but disposed of the case on a subse-
quent and subordinate point. He was of opinion, and the
court so held, that the consent of the Michigan agent to the
further insurance by Dixon was not binding upon the com-
pany, as it appeared, by his power of attorney, that his author-
ity was limited to receiving applications for insurance. No
member of the court intimated a doubt of the correctness of
the adjudication that the sale by one partner to the other did
not invalidate the policy; and of the seven judges who took
part in the decision, two were in favor of a general affirm-
ance.
In 1857 the supreme court, in the case of Dey v. Poughheep-
sis Mut. Ins. Oo.j 23 Barb. 627, had occasion, incidentally, ta
reaffirm the proposition that the validity of a policy is not
affected by transfers of interest as between the parties assured,
"he attention of this court was drawn the following year to
the decision of the supreme court in the case of TiUou v. Kinhg*
ston Ins. Co., supra, that transfers, as between the assured, are
not within the prohibition against alienation; and that decis-
ion was approved by Judge Pratt, who delivered the prevail-
ing opinion: Buffalo Steam Engine Works v. Sun Mut. Ins. Co.,
17 N. Y. 412.
It is quite apparent, therefore, that in this state there is a
decisive preponderance of judicial authority against the recog-
nition of a sale by one to another of the assured as cause of
forfeiture within the meaning of the proviso. But if the au-
thorities were in equipoise, and the solution of the question
842 Hoffman v. Mtixa Fibb Ins. Co. [New York«
•
depended on general reasoning and the application of settled
and familiar principles of law, oar conclusion would be in
accordance with that of the court below.
The terms of the proviso are, that the policy shall be null
and void, '4f the said property shall be sold and conveyed.''
But these words are themselves vague and indeterminate.
Are they to be understood in their largest sense, without re-
striction or limitation? Clearly not; for we find on referring
to other portions of the policy that it was Issued to the assured
as merchants, and that it covered a stock of goods which it
was their business to sell from day to day. Is the proviso
applicable to the particular goods in the store at the date of
the insurance? Such a construction would not only defeat
the purpose of protecting a fluctuating stock, but it would
annul the policy at once, for it would bring the first mercantile
sale at the counter within the terms of the condition. What
description of sales and conveyances, then, did the parties
contemplate when this provision was framed? Evidently
such, and such only, as would transfer the proprietary interest
of those with whom the insurers contracted to others with
whom they had not consented to contract. They testified their
confidence in each of the assured by issuing to them the policy;
but they did not choose to repose blind confidence in others
who might succeed to the ownership. If the assured parted
with the possession, as well as the title to the goods, the in*
surers knew, of course, that their liability would cease; but
they were aware that in the exigencies incident to business,
parties often retain the control, possession, and apparent
ownership of goods after parting with all their title. To guard
against such contingencies, they chose to provide for the forfeit-
ure of the policy on the transfer of the titie to others, even
though the business should continue to be conducted by the
assured.
It is suggested that the proviso may have been designed to
secure the continuance in the firm of the only member in
whom the insurers reposed confidence. The only evidence of
their confidence in either is the fact that they contracted with
all; and the theory is rather fanciful than sound, that they
may have intended to conclude a bargain with rogues on the
fsiith of a proviso that an honest man should be kept in the
firm to watch them. Certainly, nothing appears in the present
case to indicate that all the assured were not equally worthy
of confidence; and it is not to be presumed that in any case
June, 1865.] Hoffman v. Mtjxa Fibs Ins. Co. 848
underwriters would deliberately insure those whose integrity
they had reason to distrust.
The policy in question having been issued to a mercantile
firm, the company must be deemed to have had in view the
fluctuating nature of a partnership business, and the changes
of relative interest incident to that relation. These might be
very important to the assured, though wholly immaterial to
the risk. It is manifest that mere variations in the character
and amounts of the interests of the assured, as between them-
selves, did not constitute the mischief at which the proviso was
aimed. If the applicants had originally objected to the form
of the policy on the ground that the effect of the clause might
be to prevent the increase by a partner of his interest from one
fourth to one third of the business, by purchase from the other
members of the firm, the answer would undoubtedly have been
that such a change was not within the operation or intent of
the proviso. There is probably not a business firm in the
state which would accept, at the usual rates, a policy declar-
ing in terms that the premium should be forfeited and the
insurance annulled by a mere change of interest as between
the partners. In this instance there is no such declaration;
and an implication so repugnant to the evident design of the
contract is not to be deduced from the unguarded use of general
words, if they can be fairly limited to the appropriate and
obvious sense in which they were employed by the parties.
The design of the provision was not to interdict all sales,
but only sales of proprietary interests by parties insured to
parties not insured. If the words were taken literally, a re-
newal of the policy would be required at the close of each day's
sales. Indeterminate forms of expression, in such a case, are
to be understood in a sense subservient to the general pur-
poses of the contract. It is true that the language of the pro-
viso against sales was not guarded by a special exclusion of
changes of interest as between the assured, or of the sales of
merchandise in the usual course of their business; but this
was for the obvious reason that there was nothing in the tenor
of the instrument to denote that the application of the clause
to such a case was within the contemplation of the underwrit-
ers. "The matter in hand is always presumed to be in the
mind and thoughts of the speaker, though his words seem to
admit a larger sense; and therefore the generality of the words
used shall be restrained by the particular occasion": Powell
on Contracts, 889; VanHagen v. Van Rensidaer^ 18 Johns. 423.
844 HoFFMAK I'. Mr^A Fibb Ins. Co. [New York,
Thus, in an action on a life policy, containing a proviso that
it should be void ''in case the assured should die by his own
hands/' it was held by this court that though in terms it em-
braced all cases of suicide, it could not properly be applied to
self-destruction by a lunatic, as there was no reason to sup-
pose that such a case was within the purpose of the clause or
the contemplation of the parties: Breasted v. Farmer^ Loan
and Trust Co., 8 N. Y. 299 [59 Am. Dec. 482]. "All words,"
says Lord Bacon, "whether they be in deeds or statutes or
otherwise, if they be general, and not express and precise, shall
be restrained unto the fitness of the matter and the person":
Bacon's Law Maxims, Beg. 10.
Beading the proviso as it was read by the parties, it is easy
to discern the purpose of its insertion. It was to protect the
company from a continuing obligation to the assured, if the
title and beneficial interest should pass to others, whom they
might not be equally willing to trust. Words should not be
taken in their broadest import when they are equally appro-
priate in a sense limited to the object the parties had in view:
Harper v. N. Y. City Ins. Co,, 22 N. Y. 443; Decker v. Fumm^
14 Id. 615, 622; KeUey v. Upton, 5 Duer, 840; Livingston v.
Sickles, 7 Hill, 265; 1 Duer on Insurance, p. 163, sec. 8.
The terms of the i)olicy were not such as would naturally
suggest even a query in the minds of the assured, whether a
transfer of interest, as between themselves, would work a for-
feiture of the insurance, and relieve the company from its
promise to indemnify both, — the buyer as well as the seller,
— the premium being paid in advance, and the risk remain-
ing unchanged. One of two jouit payees of a non-negotiable
note would hardly be more surprised to be met with a claim
that by buying the interest of his associate he had extinguished
the obligation of the maker to both
It is a rule of law, as well as of ethics, that where the lan-
guage of a promisor may be understood in more senses than
one, it is to be interpreted in the sense in which he had reason
to suppose it was understood by the promisee: Potter v. Onr
tario & L. M. Ins. Co., 5 Hill, 149; Barlow v. Scott, 24 N. Y.
40. It is also a familiar rule of law that if it be left in doubt,
in view of the general tenor of the instrument and the rela-
tions of the contracting parties, whether given words were used
in an enlarged or a restricted sense, other things being equal,
that construction should be adopted which is most beneficial
to the promisee: Co. Lit. 183; Bacon's Law Maxims, Beg.
Jane, 1865.] Hoffman v. Mtnjl Fibe Ins. Co. 845
8; Doe v. Dixon, 9 East, 16; Marvin v. Stone, 2 Cow. 806.
This rule has been very uniformly applied to conditions and
provisos in policies of insurance, on the ground that though
they are inserted for the benefit of the underwriters, their office
is to limit the force of the principal obligation: Yeatan v. Fry,
5 Cranch, 341; Palmer v. Weetem Ins. Co., 1 Story, 864, 866;
Petty V. Royal Exchange Ins. Co., 1 Burr. 849. In the case
first cited the action was for a marine loss, aud one of the is-
sues was, whether a recovery was barred by the entry of a ship
into a blockaded port, such ports being excepted by the policy*
The court held that though the case was within the terms, it
was not within the intent of the exception; and that as the
risk contemplated in the clause was merely that of capture,
the rule of liberal construction must be applied in favor of the
promisee. The reason assigned by Chief Justice Marshall
was that "the words are the words of the insurer, not of the
insured; and they take a particular risk out of the policy,
which but for the exception would be comprehended in the
COD tract."
The appellants also encounter another rule equally at vari«
ance with the proposition they seek to maintain. "Conditions
providing for disabilities and forfeitures are to receive, when
the intent is doubtful, a strict construction against those for
whose benefit they are introduced": Livingston v. SicUes, 7
Hill, 255; Catlin v. Springfield Ins. Co., 1 Sum. 484; Breasted
V. Farmers' Loan and Trust Co., 8 N. Y. 805 [59 Am. Dec. 482].
This rule, applicable to all contracts, has peculiar force in
cases like the present, where the attempt is to sei^e upon
words introduced as a safeguard against fraud, and make
them available to defeat the claim of the assured on the
theory of a technical forfeiture without fault. If the policy
admits of such a construction, it is due to the dexterity of the
draughtsman, and not to a meeting of the minds of the parties.
There was nothing in the tenor of the contract to indicate to
the owners that under this proviso the promise of indemnity
might fail, though they did not part with the property; nor to
warn them that the insurance did not protect the entire stock
of goods in their store, whether they bought it from each other
or from third parties. Even after the transfer of interest as
between themselves, there was nothing in the policy to apprise
them tiiat their rights under it were forfeited, and that with-
out a new insurance their property was unprotected. The
general words employed are too indeterminate in their import
846 Hoffman v. Mtna Fibe Ins. Co. [New York,
to create a disability so profitless to the company and so inju-
rious to the assured.
It was suggested, rather than insisted, on the argument, that
the company may have intended to make the proviso more
stringent and comprehensive than it was assumed to be by the
plaintiffs; and that they are bound by the words to which they
assented, even if they did not fiilly apprehend their effect.
The obvious answer is, that it would be just to neither party
to assume that the insurers aimed at drawing customers into
the payment of premiums by holding out illusory promises,
couched in vague and deceptive terms, for the very purpose of
enabling them to elude liability. Nothing but the clearest
expression of such a design would justify the assumption that
an executed contract was intended by either party as a snare.
If technical forfeitures could be sustained by such intend*
ments, the effect would be to weaken private confidence in
commercial faith, and occasion just solicitude as to the secu-
rity of important rights.
The other exceptions presented in the case were argued
with great ability by the respective counsel, but the disposi-
tion to be made of the more important of these is mainly
dependent on our views of the principal question. They are
fully considered in the opinion delivered by Judge Bobertson
in the court below, and it is sufficient for us to express our
concurrence in his conclusions: Hoffman v. JEtna Fire Ins.
Co., 1 Rob. (N. Y.) 501.
The appellants seem to suppose that there is a technical
embarrassment on the question of damages, growing out of
the fluctuating character of the stock and the continuance of
the business by the remaining members of the firm, who suc-
ceeded under the transfer to the interest of the retiring part-
ner. Looking to the nature and design of the contract of in-
surance, we find no such embarrassment. The language of
this court, on a former occasion, is equally appropriate in the
case at bar: " It was manifestly the intention of the parties to
the policy that it should cover, to the amount of the insur-
ance, any goods of the character and description specified in
the policy, which, from time to time during its continuation,
might be in the store. A policy for a long period ui)on goods
in a retail shop applies to the goods successively in the shop,
from time to time. Any other construction of a policy of in-
surance upon a stock in trade continually changing would
June, 1865.] Hoffman v. Mtva Fibs Ins. Co. 847
vender it worthless as an indemnity '': Hooper y. Hudson River
Fire Ins. Co., 17 N. Y. 425.
The plaintiffs were parties to the contract made with the
defendant. They were conducting the business contemplated
by the terms of the policy. The insurance was intended to
•cover the mercantile stock of which the assured were pro-
prietors, stored from time to time in the building in which
that business was conducted. There was no substantial
change material to the risk, and clearly none within the in-
tent of the proviso. Each member of a partnership firm, as
Lord Hardwicke said, is '^ seised per my et per tout " of the
<X)mmon stock and effects: West v. Skip, 1 Ves. Sen. 242.
This interest of each and all, the policy in question was de-
fiigned to protect; and its language, fairly construed, is in
liarmony with this intent. There is no reason why tiie full
tneasure of agreed indemnity should be withheld from the
plaintiffs, who^were owners at the date of the insurance, and
sole owners at the time of the loss: Hooper v. Hudson River
Fire Ins. Co., 17 N. Y. 425, 426; Wilson v. Oenesee Mut. Ins.
Co.^ 16 Barb. 511; Jefferson Ins. Co. v. Cotheal^ 7 Wend. 73
{22 Am. Dec. 567]; Code, sec. 111.
The judgment should be affirmed, with costs.
Judgment affirmed.
What la Alienation or Insubsd Premises — EwEor upon Pouot:
fiee Finley ▼. Lycoming eCe. Ins, Co., 72 Am. Dec 705, and collected cftses in
mate thereto 708; West Branch Ins. Co, ▼. HelfentUm, 80 Id. 673; EdmantU
w. MtOMoXete. Ins, Co., 79 Id. 746, and note 74&
CoNDinoN IN PoLicr or Insubancs upon Pabtnebseuf Pbofertt
ttroiding policy if property was alienated by sale or otherwise is violated by
a dissolution of the partnership and a sale by one partner of his interest to
Mb copartner: Finley v. Lycoming ttc Ins, Co,, 72 Am. Dec. 705; amltrctf Keder
w. Niagara F, Ins, Co,, 84 Id. 714.
Rboovsbt bt Insurer Rbtainino Lien or Insurable Interest! atteb
Alienation or Insured Property in defiance of condition in policy in re-
fllraint of alienation: See extended note to Morrison's Admr ▼. Tennessu etc
fwt Ins, Co,, 59 Am. Dec 304-312.
Policy or Insurance upon Merchandise to be Used roR TRAmc At-
taches to Subsequent Purchases THEREor: West Branch Ins. Co. v. Helfenr
stein, 80 Am. Dec 573; note to Aforriaon's Adm'r r, Tennessee etc. Fire Ins.
iJo., 59 Id. 307; Whitmarsh ▼. Conway Fire Ins. Co., 77 Id. 414, and note
416.
Ck>NTRACT EZPRSaSED IN GENERAL TeRICS SHOULD BE Ck)NSTRUED to ap-
yly to those things concerning which the parties proposed to contract: Cass
w. Cushman, 39 Am. Dec. 47, and note 50.
CoNTRAor Sttsceftiblb or Double Interpretation, how OoNsntRUXDi
CmtUer ▼. Anthony, 80 Am. Dec. 333; note to Blossom ▼. Cfriffin, 67 Id. 81|
848 Hoffman v. Mtna Fibe Ins. Co. [New York^
ShoM ▼. Scmdersy 33 Id. 297; as to contract of insniaaoe, see Wettem Ins. Cbw
▼. Cropper, 75 Id. 561, and note 563.
WOBDS 07 GoirrBACT ARE TO BB TaKEN MoST StBONOLT AOADfaT PaBTT
Ubino Thxm: WkUe y. Smith, 75 Am. Dec. 589, and note 592; Evans ▼. ^or-
ders, 33 Id. 297.
PouoiEs 07 Insxtbanob abx Qovbrnsd bt Rulbs Afpuoablb to Obbi-
KABY, Simple, Wbttten Oontbaois: 8t, John ▼. American MuL L, Ins. Oo^,
64 Am. Dec. 529.
Insubancb Policies abb Lebbbally Constbubd in Fatob of Assubxiv
and exceptions therein are strictly oonstrxied against the nnderwriter: Se»
cases cited in note to Western Ins, Co, v. Cropper, 75 Am. Dec. 563.
Conditions Which Tend to Wobx FoBfErruBBS abb to bb Stbioilt
Constbubd: Emerson y. Simpson, 80 Am. Dea 184» and note 189. Courts of
equity lean strongly in favor of granting relief from such a harsh measnva
for the termination of contracts: Smith ▼. Mariner, 68 Id. 73» and extended
note thereto 85-88, on relief in equity against forfeitures.
The fbincipal gasa was cited in each of the following authorities, and
to the point stated: When the terms of a promise admit of more senses
than one, it is to be interpreted in the sense in which the promisor had reason
to suppose it was understood by the promisee: WhiU y. Hoyt, 73 N. Y. 511;
DiUeber y. Home Life Ins, Co., 69 Id. 263; Johnson v. Bathom, 2 Keyes, 484;
S. C, 3 Id. 133; 2 Abb. App. 468, to the same point; Wright v. WiUiame,
20 Hun, 323; Peopie ▼. AudStor-Oeneral, 17 Mich. 184. Especially is thia
true where the preparation of an instrument is left to the party to become
liable under it: Atlantic Ins. Co, ▼. Manning, 3 CoL 227; or where one nsaa
words in a deoeptiye and double sense for the purpose of misleading the party
with whom he contracts: Johnson v. Hatham, supra, A contract should bo
supported rather than defeated whenever it can be done by a fair and rational
construction of the language used: CUnion y. Hope Ins, Co,, 51 Barb. 651;
Oriffey v. Jt^ew Tork Cent. Ins. Co., 100 N. Y. 421. Words used in a contract
of insurance must be taken in their ordinary sense, as commonly used snd
understood; and if the sense in which they are used is uncertain, as they are
found in a contract prepared and executed by the insurer, they should be
construed most favorably to the insured: Herrman v. Merchant^ Ins, Co,, 81
Id. 188; Steen v. Niagara Fire Ins. Co., 89 Id. 324. So clauses in a policy of
insurance providing for exceptions, being the words of the insurer, and not
of the insured, are to receive a strict construction against those for whoa»
benefit they are introduced; and where a doubt exists as to the efieot of in-
tended violation of the warranty, the insurer should be held to a strict oon*
struction, so as not to avoid the policy until the same is aotnaUy violated;
Beams v. C<^mbian Ins. Co., 48 Barb. 453. Conditions providing for di»*
abilities and forfeitures are to receive, when the intent is doubtful, a striot
construction against those for whose benefit they are introduced: Blumer v.
Phoenix Ins. C7o.,45 Wis. 640; Wakefield v. Orient Ins. Co. qf Hartford, 50 Id.
536. If the words of a promise have been used in an enlarged or restricted
sense, they will, in the absence of circumstances calling for a different inter-
pretation, be construed in the sense most beneficial to the promisee: WhUe v.
Hoyt, 73 N. Y. 511. A sale by a retiring partner to his copartners of his in-
terest in the firm is not a breach of the condition that ^e policy shall be
Void if the property is conveyed without the consent of the insurance com-
pany: Phanix Ins, Co, v. HamzUon, 14 WalL 509; Keeney v. Home Ins. Co.
^ (Minites, 3 Thomp. ft C. 481, 482; 8. C, 71 N. Y. 402, to the same point
June, 1865.] Bbanyabd v. Hoppock. 849
80 a provision in a lease against subletting the demised property withoat the
oonsent of the lessor does not apply to a mere change in the business firm
of the lessees incident to the admission of a new partner or the withdrawal
of an old one: BooteoeU y. Hopkins, 33 Id. 82. Open policies of insurance
are constantly upheld to coyer subsequent purchases of goods: Sawyer y.
Dodge Co, MuL Tiu, Co., 37 Wis. 644. Insurers cannot justly complain that
Insured property was dedicated to the uses contemplated by them as well as
the assured, and embraced in the desoriptiye terms of the policy: Mayor etc
y. Bxehxnge Fire Ins, Co,^ 3 Abb. App. 266; S. C, 34 How. Pr. 107; 3 Eeyes»
440, to the same point. The principal case was also cited and referred to in
Mone y. Buffalo etc Ins, Co,, 30 Wis. 640; Manley y. Ins, Co, qf N, A., I
Lans. 32; Johnson y. Kortkwestem K, Ins, Co,, 39 Wis. 06; McMaster y.
PreOdeni etc Ins, Co, qf N, A,, 65 K. Y. 231; Bvffalo CUy Bank y. Howard,
86 Id. 606; WiiUanu y. Fireman's Fund Ins. Co,, 64 Id. 672, in a sort of gen*
eral and illnstratiye way.
BeAYNABD V. HOPPOOK.
[82 NSW TOBK, 671.1
BonOMBT 18 Ck>KTBAOT BT WhIOH OwNBB OF ShIP HtFOTHSOATKS OR
BnfS8 It as seonrity for the repayment of money adyanced for the use
of the ship. It is a contract in the nature of a mortgage of the b}^,
and the interest to be paid is generally called ** marine interest."
Onb EssEivTiAL Featu&b 07 BoTroiiRY IS, that the money lent is at the
risk of the lender during the yoyage, and that the repayment thereof
depends on the eyent of the successful termination of the yoyage. It is
the yery essence of the contract that the lender runs the risk of tha
yoyage, and that both principal and interest be at hazard.
fr IB NOT BorroHBT if Money Loaned la to be Kepaid at All
Hazabds, for the principal and extraordinary interest reseryed is not
put absolutely at hazard by the perils of the yoyage. The lender must
run the maritime risk to earn the maritime interest.
Thebb can bb No Pbbsonal Besponsibility in Valid Bottomby. The
money must be adyanced on the faith of the ship, and at the sole risk of
her loss or safety. So, if by the terms of the contract the owner binds
himself personally to repay the loan, it is not a bottomry loan.
Iv Ybssbl 18 Lo0r at Timb whbk Money on Bottomry Loan Beoomea
Payable, the lender cannot recoyer either principal or interest; and
where her azriyal in safety entitles him to repayment, he is confined to
the security of the ship, and cannot enforce his claim personally against
the owner beyond the yalue of the pledged fund which may come into
bfii ^T^^f,
LoiAH D NOT Bottomby Loan whbbb Oollatebal Sboubity is Giyen fob
m Absolute Repayment, as where insuranoe policies and the yessel
itself are assigned as security.
OoRTBAor OF Loan, Falsbly Callbd Bottomby, is UaumouE and Void^
where it resenres to the lender a greater interest than the lawful rate,
MMTnifig it as ** marine interest."
liONXY Collboted BY Lbndeb ON Sboubities Oollatbbal to Usitbioui
Loan, Falsbly Called Bottomby, may be recoyered by the borrower
in an action properly brought for that purpose.
850 Bbaynabd 1^. HoppoGK. [New York^
Ths facts are stated in the opinion.
/. H. Reynolds^ for the plaintiff, respondent
Charles W. Sandford^ for the defendant, appellant
By Court, WaiaHT, J. The main question in this case ia^
whether the agreement under which the loan was made to the
plaintiff was usurious; if usurious, the judgment is right
The policies on which the defendant received the money from
the insurance company were assigned, and the bill of sale of
the brig was made and delivered to him, in pursuance of such
agreement, as collateral security for the payment of the loans.
In judgment of law, from the time the securities were thus
received they were held wrongfully by the defendant; and
there is no pretense that his subsequent collection of the
money due upon them was by the consent, or even knowledge*
of the plaintiff.
The agreement was in writing, and in substance this: Hop-
pock, the defendant, was to advance fifteen hundred dollars
on the brig Sophia, loading in New. York, and bound for San
Francisco; and the plaintiff, Braynard, agreed to pay him for
the use of the money twelve per cent commission, and interest
at seven per cent per annum from date (May 16, 1850), until
the said amount was paid to said Hoppock in New York.
Braynard further agreed to transfer to Hoppock the policy of
insurance on the brig, for eight thousand dollars; also the
policy of insurance on the freight, and the bills of lading of
cargo, together with a bill of sale of the vessel. The brig was
to be consigned to Mr. Bidleman, in San Francisco, who was
to collect her freight, charging the customary commissions at
that place for doing the business. He was to remit to Hop-
pock, from the proceeds of the vessel's account, the amount
loaned and twelve per cent commission, and interest added
until the funds could be placed in Hoppock's hands in New
York, holding the balance subject to the order of Braynard.
On receipt of the funds in New York, Hoppock was to return
to Braynard the policy of insurance on the vessel and bill of
sale. In case of the loss of the vessel, the insurance upon her
was to be collected by Hoppock, and after paying himself the
principal loaned and interest, and twelve per cent commission
as agreed, the balance was to be paid to Braynard. In pursu-
ance of this agreement, the loan of May, 1850, was made; and
subsequently a further loan of $366, and Braynard assigned
to Hoppock two policies of insurance on the vessel for twe
June, 1865.] Braynabd v, Hoppoox. 351
thouBand dollars each, and a policy on the freight for four
thousand dollars, and also executed and delivered to him a
bill of sale of the brig.
The transaction, then, was a loan of money, with a charge
of a premium for a loan largely in excess of legal interest. It
was clearly usurious, unless of such a nature as to take it out
of the statute. This is conceded; but it is claimed that the
contract under which the loan was made was, in substance, a
bottomry bond upon the brig Sophia. In this I cannot con*
cur. There is but a single expression to the contrary afford-
ing the slightest presumption that the parties themselves
intended a bottomry, viz., the advance is stated to be on the
brig Sophia, now loading in New York, and bound for San
Francisco. But whether they so understood it or not, it is
plain that that was not the nature or character of the transac-
tion.
Bottomry is a contract by which the owner of a ship hy-
pothecates or binds the ship as security for the repayment of
money advanced for the use of the ship. It is defined by
Marshall to be a contract in the nature of a mortgage of a
ship, on which the owner borrows money to enable him to fit
out the ship or to purchase a cargo for a voyage proposed, and
he pledges the keel or bottom of the ship pars pro toto as a
security for the repayment; and it is stipulated if the ship
should be lost in the course of the voyage by any of the perils
enumerated in the contract, the lender also shall lose his
money; but if the ship should arrive in safety, then he shall
receive back his principal, and also the interest agreed upon,
generally called ^^ marine interest": 2 Marshall on Insurance,
733. An essential character of bottomry is, that the money
lent is at the risk of the lender during the voyage, and that
the repayment thereof depends on the event of the successful
termination of the voyage. It is the very essence of the con-
tract that the lender runs the risk of the voyage, and that both
principal and interest be at hazard. If the vessel is lost at
the time the money becomes payable, the lender cannot re-
cover either principal or interest; and where her arrival in
safety entitles him to repayment, he is confined to the security
of the ship, and cannot enforce his claim personally against
the owner beyond the value of the pledged fund which may
come into his hands. It is no bottomry where the money is
payable at all events; for the principal and extraordinary in-
terest reserved is not put absolutely at hazard by the perils of
352 Braynard 1?. HoppocK. [New Yolk,
the voyage. The lender must run the maritime risk to earn
the maritime interest If, by the terms of the contract, the
owner binds himself personally to repay the loan, or there be
collateral security for its absolute repayment, it is not a bot-
tomry loan. Repayment does not depend upon the contin-
gency of the safe arrival of the ship, but whether lost or not,
it is to be made, and there is no risk taken.
Judge Peters, in R%icher v. Conyngham, 2 Pet. Adm. 295,
in enumerating what is essential to constitute a valid bottomry,
says: '*The sum loaned must be at a risk, and there must not
be a personal responsibility, that is, the money must be ad-
vanced on the faith of the ship, and at the sole risk of her loss
or safety. It cannot be given as a double security, running
along with a personal responsibility, — the one excludes the
other; the risk, being solely confined to the ship, is the only
justification allowed by the law of all commercial countrieei
for the maritime interest."
Now look at this case in the light of these peculiar charac^
teristics of a bottomry transaction. It seems to me there is
no ground for considering the agreement a contract in the
nature of bottomry, or the loan one on bottomry. The lender
took no maritime risk; the principal and interest were never
at hazard from any sea risk. The defendant's reimbursement
of principal and interest was not dependent upon the hazard
of any voyage, or the saf^ arrival of any vessel at any port.
By the terms of the contract, lawful interest, in addition to
the commission specified, was to be paid absolutely, and not
upon any contingency, until the principal, interest, and com-
mission should be paid to the defendant in the city of New
York. In addition to the individual liability of the borrower,
and by the terms of the agreement, he assigned to the lender^
as collateral security for the loan, two policies of insurance on
the brig, each for the sum of two thousand dollars, and a
policy of insurance on the freight for four thousand dollars,
and also gave him a bill of sale of the vessel. It is impossible
to say this was a contract for a loan on bottomry, entitling the
lender to marine interest; the lender took no rids whatever,
and intended to take none. I think the judgment should be
afiSrmed.
Campbell, J., delivered a dissenting opinion.
To OOJiSlTTUTB BOTTOMRT, WHXRX MORE THAN LbGAL IlfTIBI8T IB ES-
ORVXD, it 11 6Meiitial that the money lent and interest ahonld be pnt at riak.
If they are payable at all eventa, or if there is collateral teoority given for
June, 1865.] Bbown v. New Yobk Central R. R. 853
them, which is payable at all events, no matter by what name the eontnusft
IS called, it is not a bottomry: Jennings v. In$, Co,, 6 Am. Deo. 404.
Ab to Usubious ConTRAorB Gbnxballt, see extended notes to Datk r*
OatrTf 66 Am. Dea 802-400; Syhxater ▼. Swan, 81 Id. 736-788.
Beown V. New York Central Railroad.
r82 NSW TOBK, 097.1
Baxlboad Cqmfant IB GniLT7 or Gross ahb Cbjmxsal Ksougenci nr
Maxxno " RmrniNO Switch " over pnblio croBBxng of its track in the
street of a populous village, where travelers are constantly passing; and
the question as to whether a railroad company has ezerdsed its right of
makiag a " running switch " at a proper place, and with the use of due
care, may be properly submitted to the jury.
** EumnNO Switgh " Dejinied. See facts of this case.
D^MAGIS lOB InJXJBT RECEIVED BT "RUNNINO SWITCH " KAT BB RbOOY-
BBED WTTHOOT OiHER Pboov of negligence on defendant's part than the
act of making such running switch over a public crossing in a populous
village, constantly passed by travelers, where the person injured at such
crossing is without negligence on his part.
KO CULPABLB NbQUOENOB IS ESTABUSHBD BT PBOVnrO THAT StaGB-OOACB
Dbiveb, in attempting to cross a railroad track, tUd not look in the direc-
tion from which the cars were approaching until his horses were on the
track, where the usual signal of danger was not given as the stage ad-
vanced toward the crossing; and this although it appeared in evidence
that if he had looked before, he would have seen the cars in. time to have
avoided a collision.
TMnMovT m Relation to Statements and Oomflaintb Mads bt
Plaintivf as to su£fering from headache and defective sight after receiv*
ing an injury through defendant's negligence is admissible, though such
statements and complaints were made after action brought; and the
question as to whether the injury to plaintiff's sight is permanent or not
may be submitted to the jury
Relation of Passbnoeb on Staoe-ooaoh to Carbieb is Samb as tbat of
passenger on train of railroad cars to the railroad company
Passenoeb on Public Stage-coach is not so Identified with Pbofbietobs
ihebbof, or their servants, as to be re^onsible for negjligence on their
part
Passenoeb on Public Staob-coagh kat Reooveb against Pbofbixiobs
OF Railboad Train for damages to him arising from a collision through
the negligence of the railroad company, though there was such negligence
l^ the driver of the stage-coach as would have defeated an action by its
owners. # *.•
Joint AonoN in NbgligbnISe. — Passenger on public stage-coach, who is
injured by a collision resulting from the concurrent negligence of the
driver thereof and of the proprietors of a railroad train, may ni^nt-a-^'" a
joint action against both.
PAflBENGEBB ON StAGE-OOAGH CANNOT ReCOVEB FOB INJURY ReSULTINO
FBOM Kbgligence OF Third Partt, in case the negligence of the drivet
Am. Dsa Vol. LXXXVIU— 28
864 Bbown 1^. New York Central R. R. [New York.
of the coach contribnted to the injury. The driyer repreoenti his pae-
iengers, and his negligence must be regarded as their ni
Action to recover for injuries sustained by plaintiff by rea-
son of a collision of defendant's cars with a public stage-coach,
in which she was a passenger. The collision occurred at a
public crossing in Main Street, in Albion, which point was in
a densely built' portion of the village, and much traveled.
The stage approached the crossing from a direction in which
a view of the railroad was greatly obstructed by houses, trees,
shrubbery, and fences, and an approaching train could not
well be seen until the traveler was within a few rods of the
iron track. Defendant was making a "running switch" for
the purpose of taking a car out of a freight train, and which
was to be left at Albion. (To make a '^ running switch," a
train approaches with considerable speed, and while so ap-
proaching the car to be left is disconnected; the forward part
of the train then passes rapidly over the switch, the rear part
is somewhat checked, the intermediate car to be left is switched
off, and the switch is replaced in time for the rear part of the
train to unite with the front part thereof without stopping.
The way-car is the one to be run off on the side-track. It and
the rear cars are of course without signals, and a space of
several rods intervenes between the parts, so as to enable the
switch to be proi)erly moved and adjusted.) The switch was
on the west side of Main Street. The driver of the stage heard
the approaching train when within a short distance of the
track. He stopped his team, and waited for the train to pass.
While it was passing, he started on, and had got within three
or four rods of the rails when the single or way car came by.
He again stopped his team for that to pass, and then started
on a trot, and had got his horses' heads over the rails when
he saw the rear cars coming some two rods from him. He
instantly whipped his horses, they started fast, and the cars
struck the bind axle and wheel of the coach, causing the injury
to plaintiff for which this action was brought. The plaintiff,
among other injuries, received a severe contusion on the side
of her head, and it was claimed that her eyesight was per-
manently injured. The driver testified that he was looking
at the car that had just passed, and did not look to see if more
cars were coming until his horses had got upon the track, when
he saw them, and started up as above stated. The plaintiff
was confined to her bed for two weeks, to the house for three
weeks, and the external injuries remained eight or nine weeks.
June, 1865.J Brown i;. New York Crntbal R. R. 855
After the injury, she was affected with headache; and her sight
was injured so that she could not see evenings to read or sew.
She testified that her sight was good before, and that she
was not troubled with headaches. The following question was
put to her attending physician: '^If she was without headache
and had good sight before, and has had headaches since down
to this time at frequent intervals, or her sight affected, state
your opinion as to the tendency of the injuries you saw to pro-
duce such results." An objection to the questioa being over^
ruled, the witness testified: That from the appearance, there
might have been such a concussion as would produce a serious
injury without any more serious external injuries; that head-
aches might result from such a cause; that a severe concussion
of the brain might produce impaired vision; that the injury
received by her might possibly produce such injury to the eye-
sight; that there being no injury to the eyeball itself, the in-
jury, if it existed, would be from a concussion of the brain
affecting the nerve; and that he was unable to give any opin-
ion as to how long that, would be likely to exist. Defendant's
mother testified that plaintiff had complained of headaches
all the time since the injury. Counsel for defendant objected
to any testimony in relation to statements and complaints of
plaintiff since the commencement of the action. The objec-
tion being overruled, defendant's counsel excepted. Counsel
for defendant then moved for a nonsuit, upon the following
grounds: 1. That plaintiff had failed to show that the injury
complained of was occasioned without fault on her part; 2.
That the evidence showed that Thomas, who was employed
by plaintiff, was himself negligent, and that his negligence
contributed to produce the injury; 8. That the proof failed to
show negligence on the part of the defendant; 4. That upon
the undisputed facts of the case, the plaintiff was not legally
entitled to recover. Motion denied, and defendant excepted.
Other exceptions, stated in the opinion, were taken to the
charge. Verdict for plaintiff for five hundred dollars.
Strong and Mumford^ for the appellant.
/. H. Martindaley for the respondent.
By Court, Davis, J. It is insisted by appellant that there
was no evidence of negligence on its part which contributed
to produce the collision; and that the court erred at the
trial in denying the motion for a nonsuit on that ground,
and in submitting the question of defendant's negligence to
356 Bbown v. New York Centbal R. R. [New York,
tbe jury. On QAb question, the point submitted to the jury
was, whether the defendant exercised its right of making a
running switch at a proper place, and with the use of due
care.
The place was certainly one demanding great caution; the
crossing was over the street of a populous village, where trav-
elers were constantly passing; the view of approaching trains
was in a great degree cut off by obstacles on the side of the
street and along the line of the railroad. The act of making
a ''running switch" to cut out of a long train a car, to be left,
and to bring the remaining portions of the train together while
moving at a. rapid rate, evidently requires a good degree of
care and skill; and if it be done over any public crossing, it
must expose passers-by to more than ordinary danger. A per-
son approaching a crossing, and seeing an engine with a large
number of cars attached passing rapidly by, would naturally
suppose that the danger of collision had ceased; his eye would
follow the receding train, the noise of which would be apt to
drown that made by approaching cars; but if he found him-
self suddenly confronted by a car rushing by, of its own mo-
mentum, his attention would be likely to be arrested by and
attracted to that, without thinking that more were to follow on
fheir loose and unheralded career.
I am at a loss to see how the defendant could justify the
selection of such a place for the performance of what under
the circumstances appears to me to be so dangerous an act;
and more particularly to see any ground on which a court
could adjudge, as matter of law, that it was safe and proper
in such a locality to make a running switch, whereby one train
is detached into three parts, the last two propelled by their
own momentum at a rapid rate over a much-frequented thor-
oughfare, without signals or warning of any kind. In my
judgment, the act was gross negligence, for which I should
hesitate to say the company could not be held to a criminal
responsibility. There was evidence on the part of the defend-
ant tending to show care in the manner of making the run-
ning switch on this occasion, and that it had been accustomed
to make such switches at this point for some months, so that
travelers might have had notice to some extent of their being
made, which rendered the question a fair one for the jury;
and it seems to me there was no error in submitting it to
them.
It is also claimed to be error not to have nonsuited for the
June, 1865.] Bbown v. New Yobe Cbntbal R. R. 357
alleged negligence of the driver of the trtagO) and to have sub-
mitted the question of his negligence to the jury. The court
charged the jury that the negligence of the driver must be re-
garded as the negligence of the plaintiff; that he represented
her, and she could not recover in this action if his negligence
contributed to produce the injury. Since the trial of this ac-
tion, the decisions of this court in Ckapmcm v. New Haven
R. R. Co., 19 N. Y. 341 [75 Am. Dec. 344], and Colegrove v.
New York and New Haven R. R. Co., 20 Id. 492 [75 Am. Dec.
418], have been published. In the former of these cases, this
court held that a passenger by railroad is not so identified with
the proprietors of the train conveying him or their servants as
to be responsible for negligence on their part, and could recover
for personal injuries from a collision through negligence of the
defendant, although there was such negligence contributing to
the collision on the part of the train conveying him as would
have defeated an action by its owners; and in the latter case,
it was held that the injured passenger could maintain his ac-
tion against the proprietors of both on the ground of their con-
current negligence. I do not perceive why these cases do not
dispose of the question as to the negligence of the driver iii
this case. The plaintiff was a passenger in a public stage;
she had no control of its management or direction, and occu-
pied no relation to the driver different from that which pas-
sengers occupy to any public carrier of person53. In principle,
there is no difference whatever between her relation to the
carrier and that of a passenger on a train of railroad cars.
The difference is one of fact merely, growing out of the differ-
ence of motive power and the corresponding necessity for more
stringent rules and greater vigilance in one case than in tha
other.
But a majority of the judges are of opinion that the true rule*
in a case of thii9 kind was laid down at the circuit. It be-
comes necessary, therefore, to consider the question in the same
aspect in which it was presented at the trial. It is not pre-
tended that there was any fault or want of care on the part of
the plaintiff herself; and it seems to me there was no error in
submitting the question of the driver's negligence to the jury.
As he approached the crossing and heard the train, he stof^d
and waited; he started on when danger from it had passed,
and had got very near the track when the first detached car
came by; he stopped again, and when that had passed, sus-
pecting no further danger, he drove on. His horses were oo
858 Brown v. New York Central R. R. [New York,
the track, and were trotting, when he saw the new danger; it
was within two rods of him, and he quickly whipped up his
horses to escape. Could he have more safely drawn back and
stopped? It is impossible to tell. He was placed where there
was no time to decide the question; his peril called into ac«
tion his instincts, and not his reasoning faculties; and under
such circumstances, the party who had put him in jeopardy ia
responsible, and not he, if he mistook the safest means of es-
cape: Stokes V. Saltonstall, 13 Pet. 181.
It was no error, therefore, to leave it to the jury to say
whether, under all the circumstances, the driver was negligent
in attempting to escape by crossing the track. But was it
negligence not to have seen the cars by which his carriage was
hit in time to have stopped? They gave him no warning; he
had seen a train pass, and had stopped for it; a single car fol-
lowing at a distance from it, and had waited for that. These
had attracted his attention, his eye naturally following them.
Was he bound to suspect that more were coming, and be on the
lookout for them? I think it is asking too much to say that
it was negligence, as matter of law, not to have anticipated
that detached cars were following in the rear of the train that
had passed. The signals of the train had told him where the
danger was, but gave no warning of unsignaled danger to
follow.
It was not error to submit to the jury the question whether
the injury to the plaintiff's sight was permanent or not. There
was slight evidence on the question, and the court gave the
jury a caution on the subject, which the amount of the verdict
shows they did not fail to heed.
There was no error in allowing proof thaA plaintiff com-
plained of suffering from headache and defective sight. The
fact of making complaint in such cases is admissible: Caldr
well V. Murphy, 1 Duer, 233; S. C, 11 N. Y. 416, 419, per Denio,
J.; 1 Oreenl. Ev., sec. 102; Aveson v. Kvnnardy 6 East, 188;
Bacon v. Charlton^ 6 Cush. 581. But as the fact of plaintiff's
suffering from those causes was distinctly proved, and not con-
troverted, no harm could have resulted from the evidencey if
not strictly admissible.
In my opinion, the judgment should be affirmed.
Dknio, C. J., Wright, Porter, and Brown, JJ., concurred
Davies and Campbell, JJ., dissented.
Potter, J., took no part in the discussion.
June, 1865.] Bbown v. New York Central R. K 859
LzABiLiTT 07 Staos Profbixiobs: Frhk T. Cbe, 61 Am. Deo. 141; FaiH$h
5 Co. T. Ragle, 62 Id. 666, and note; TuOer r. TaSioi^ 76 Id. 69S.
Raxlboad PAasBNOKB Injvbxd bt Collision 07 Tbadib Bxlovoiho to
DurxBENT Pbofbixtobs kat Rboovzb of the proprietors of the train he ia
not on, although the managera of the train he is on are guilty of negligenoe.
The negligence of the officers of the train does not extend to or affect the
passenger: Chajpman t. New Haven R, R,, 76 Am. Deo. 844; compare Flekiher
T. BoeUm etc R, R., 79 Id. 696» and note 700.
Railboab Ck)MPAinzs, Both Chabgxablb with KxauoxirGi Oaxtbzno
CoLuaiov 07 THXiB Tradts, abb Jointlt liLiBLB in damages for injuries
sustained hy a passenger: Cokgrove v. New York etc R, R, Co., 76 Am. Dea
418^ and cases cited in note thereto 419; Klauder v. McOrath, 78 Id. 829
DXCLABAIION 07 InJUBED FxBSON AS TO HIS PAIN OB SOBJBNBSa, OOIC-
PETXNOT 07: See Werelv ▼• Penona, 84 Am. Dec. 346, and note 348.
ThX FBinCIPAL OASB WAS COMMXNTED UTOB AVD OBITIGISED in Perry T.
Lanamg, 17 Hon, 37, 41, 42; Webster y. Sudeon River R, R, Co,, 88 X. Y. 262;
ArcUe Fwe Ins. Co, ▼. Auettn, 6 Thomp. ft Go. 66; S. C, SHon, 198; Beck r.
Boat River Ferry Co., 6 Bobt. 87; Mooneyr. Bwhon River R. R. Co,, 6 Id. 649,
662; Robinaon r. New York Cent, R. R, Co,, 65 Barb. 151, 152, 155, 156;
8b C, 66 N. Y. 14. The rale laid down in the principal case, vis., that pas-
sengers on a stage-coach cannot reooyer for an injury resulting from the neg«
ligence of a third party, in case the negligenoe of the driver of the coach
eontribnted to the injury, has not been considered good law in New York, as
will be seen by examining the cases dted above. It is said in Robineon t.
New York etc, R, R. Co., 66 Id. 14, to be obiter, and ia there explained. In
Perry t. Lcuuing, 17 Hon, 41, Bockes, J., in his dissenting opinion, says that
tike point npon which this role is founded was taken from the principal case
by the finding of the jury that there was no negligence imputable to either
the pbintiff or the driver of the coach. And in Webster v. Hudson River R. R,
Co., 38 N. Y. 262, it was said by Hunt» 0. J., that» as the jury had found in
the principal case that there was no negligence on the part of the driver,
the question of imputed negligence could not have been decided in that caM.
" The qnestion was somewhat discussed, but it did not exist in the case. " So
in Robinaon v. New York etc R, R, Co,, 66 Id. 14, it was said that the point
was not decided in the principal case. In Mooney v. Hudson River R, R, Co,,
6 Robt. 549, and £eekv» Bast River F, Co,, 6 Id. 87, the cases of ChapTnanr, New
HavenR, R, Co,, 19 K. Y. 341, and CdUgrove v. New York etc R, R, Co,, 20 Id.
492; cited in the principal case, were considered in a great measure to be
overruled by the principal case. But in Robinaon v. New York etc R, R, Co,,
66 Id. 14, Church, G. J., in speaking of the principal case, remarked, with
respect to the point under consideration, that the opinion said to have been
expressed in the principal case had not the weight of authority. And the
priaciple recognised and adopted in i2o6inst>ii v. New York etc R, R, Oow, auprct,
seems to be in hostility to such rule in the principal case. In that case, a
lemale sustained an action against the defendant for an injury caused by its
negligenoe^ though the person with whom she rode by invitation was guilty
cl contributory negligence. The negligence of the driver cannot be imputed
to the passenger. And the general course of the New York authorities are
in accord with this view on this pointy as opposed to the principal case.
The principal case was summarised as to facts and negligenoe in attempt-
ing to croesa railroad track in WiLowY, Romeetc R. R. Co., 39 N. T. 861|
Mmalr, Hudson RherR.R, Co,, 32 How. F^. 87; S. 0., 3 Abb. Pr.,N. a, 108|,
860 Bbown v. New York Central R. B. [New York|
111; 85 N. Y. 37, 45. In BoaaterY. Second Avenue iZ. 22. Cb., 3 Robt 515, S. 0.,
80 How. Fir. 23A, it was held that if there is time for a person to cross a rail-
road track before an approaching car thereon can arrive, he is not bound, in
order to avoid the charge of negligence, to wait nntil the car has passed, be-
cause there might be danger of his slippizLg or falling. In that case, the de-
fendants moved to dismiss the complaint^ on the gronnd that the accident was
owing to the pUintifif 's imprudence and negligence, and the principal case
was cited in snpport of the proposition that the motion for a nonsnit was
properly overruled. The principal case was cited in the following aathori*
ities, and to the point stated: As to the general ground of objection to tlM
evidence as hearsay, it is in every day's experience in actions of assault, that
what a man has said of himself to his surgeon is evidence to show what ha
suffered by reason of the assault: Fort v. Brown, 46 Barb. 369. So where an
operation has been performed upon a woman with the object of producing a
miscarriage, evidence of her condition after the operation, and her declara-
tions in connection therewith, are proper. They are declarations accom-
panying acts, and characterizing the act and her bodily suffering: Maine ▼.
People, 9 Hun, 1 17. Where it becomes material to show the bodily health and
condition of one injured b^ another, from the time of the accident to the
time of trial, the most satisfactory species of testimony upon the point is
that of physicians who saw and examined the injured one at different times
during that period, with a view of ascertaining his condition. EUs complaints
and representations of pain and suffering, together with his appearance and
conduct, necessarily form the basis of their judgment. Such complaints and
representations are original testimony, and not hearsay. And this is the case
notwithstanding the examinations referred to were made by the physicians
after the suit was commenced, and with a view to their testifying therein as
to the result of their examinations; even if the patient knows that such is
their object, the jury are to judge whether his representations are false or
his testimony collusive: McUteeon v. New York CenL R, R., 35 K. T. 491.
The material facts of StiUwell v. New York Cent R, R. Co., 34 Id. 29, were
identical with those of the principal case, and the questions there raised on
appeal were substantially disposed of in the principal case. It was there
held that in an action by the husband for injury by negligence, the declara-
tion of his wife that the defendant was free from negligence could not bo
treated as an admission of the fact by him. Where a train in passing through
a populous village was cut in two parts, and the ten rear cars being separated
from the ten front cars and engine by a distance of fifteen or twenty rods,
while running across a public street^ struck and killed plaintiff's intestate^
there being no person on the front car of said rear section on the lookoat
for and ready to warn persons approaching, and no flagman at the crossing
it was held that these facta were evidence of gross ne^^ence on the part of
the laikttaa waopany: BtUUr v. Ittkoaukee ele. J^jf Cfo., 2S Wis. 48S.
June, 1865.] Donnell v. Walsh. 861
DoNNBLL V. Walsh.
[88 Kbw Yokk, 48.1
Pabt OwiTBBS OF Ybsskl abs Tenaots nr Goicmoh as to title, but m m-
spectB earningB of the Teasel, they are partnen on any Toyage on whioh
it ia sent by them.
Pabthxbs ni Eabmihos of Vxssxl bhoxtld All bx Jozhxd in aetion to
reoorer freight earned.
Objection of Non-joindbb of Fabtzes Plaintiff is Waiybd if not taken
adyantage of by demnrrer or answer.
Action by Qeorge Donnell and Joseph T. Donnell, claiming
to be part owners of the brig Crimea, against Louis Walsh,
B. Carver, and John Chase, to recover the sum of $712.62,
with interest, being the plaintiffs' portion of the freight earned
by the vessel on a voyage, and which had been collected by the
defendants as agents of the owners of the brig. The other part
owners were not joined. Li the case of Merritt v. Walshy 32
N. Y. 685, referred to in the principal case, Merritt and three
other part owners, owning three eighths of the brig Crimea,
sued Louis Walsh and others to recover the plaintiffs' portion
of freight and demurrage earned by the brig on a voyage from
Cardenas to New York, and collected by the defendants as
agents of the owners of the brig. Arnold & Co., who owned
the shares in the brig which did not belong to plaintiffs, were
not parties to the action. The defendants claimed that the
portion of freight and demurrage retained by them ought to be
offset against a claim made by them for moneys advanced in
May, 1865. This claim had, by the master of the brig, under
the influence of a threat to proceed against the vessel in ad-
miralty for its collection, been allowed by him on the arrival
of the brig in New York, in June, 1857. The home of the
vessel was in Bath, Maine, where Arnold & Co. resided. But
the offset claimed by defendants had been adjusted in 1855,
and they had drawn a draft therefor on Arnold & Co., which
was then accepted and paid. Soon after this acceptance by
Arnold & Co., the defendants accepted drafts to a greater
amount drawn on them by Arnold & Co., who failed. It was
because of the acceptance of these last drafts that the de-
fendants claimed the offset, and had procured its allowance
by the master. They also claimed at the trial that there was
a misjoinder and a non-joinder of parties plaintiff, but they
had not pleaded it in abatement. Both in the court of ap-
peals and at the general term of the superior court for New
York City it was decided: 1. That the demand presented as a
862 DoNNELL V. Walsh. [New York,
counterclaim had been extinguished by the draft accepted
and paid by Arnold & Co.; 2. That being 'bo paid, the mas-
ter of the vessel had no authority to allow the claim, and the
owners could repudiate his adjustment thereof; 3. That had
there been a plea of non-joinder, it would have been well
taken, because 'Hhe several owners of a vessel owned on
shares, though they are tenants in conimon of the ship itself,
are partners in regard to its earnings upon any voyage on
which it is sent"; but that under the code, such non-joinder|
not being alleged in the answer, was waived; 4. That there
was no misjoinder of parties plaintiff, because the plaintiffs,
all being part owners of the vessel, were to be deemed part-
ners in the fruits of the voyage. At the trial of the pres-
ent case, the defendants moved for a dismissal, because the
other part owners were not joined as plaintiffs, and also be-
cause the two plaintiffs who did join were improperly joined,
and ought to have sued separately. Motion denied. Verdict
for plaintiffs. Defendants appealed.
Dean, for the appellants.
Hawkins^ for the respondents.
By Court, Denio, C. J. This action was brought to recover
one-half part of the balance of certain moneys received by the
defendants, as agents of the owners of the brig Crimea, for the
freight and demurrage of that vessel on a voyage from Carde-
nas to New York, which ended in May, 1857. The plaintiffs
were the owners of one half of the brig, and the voyage appears
to have been prosecuted on behalf of the owners. The defense
was the same which was introduced by the defendants in the
case of Merritt and others against the same defendants, con-
sidered at this term (32 N. Y. 685). Those plaintiffs were the
owners of three eighths of the brig, and by the judgment in
that case, recovered that proportion of the moneys in the de-
fendants' hands. The only difference in the cases, besides the
different proportions claimed, is, that the title of the present
plaintiffs to their shares accrued by purchase, in March, 1857,
after the account which the defendants claimed to retain had
arisen, whereas Merritt and his co-plaintiffs were part owners
in 1855, when that account arose; and that in the present
case, the plaintiffs were joint owners of their one half, whilo in
the other case, the plaintiffs were each owners of separate
shares, as tenants in common of the vessel. These distinc-
tions, if they were of any account, would be favorable to the
June, 1865.] Donnell i;. Walsh. 368
present plaintiffs; but in the view I have taken of the case of
llerritt and others, the defendants had no valid answer to the
action; hence they can have none in the present case. The
judgment of the superior court must be affirmed.
Davis, J. There was no difficulty in disposing of the merits
of this case ^^ without prejudice to the rights of others," and no
necessity to arrest the case to bring in other parties, in order
to " a complete determination of the controversy " before the
court: Code, sec. 122. The defendants had not demurred for
defect of parties, nor alleged any facts in their answer showing
that other persons should have been made parties; and there-
fore, under the code, must be deemed to have waived the ob-
jection urged at the trial on the ground of the non-ioinder of
other owners of the brig: Id., sec. 148.
The plaintiffs, as copartners, owned one half of the vessel;
their firm were tenants in common with the owners of the
other half. The money which had come to defendants' hands,
after discharging all claims and expenses, left in their hands
a sum to be divided* between the owners of the brig. The de-
fendants undertook to make this division, and to pay over to
the owners, in severalty, what they claimed their respective
portions to be, and accordingly paid to plaintiffs the sum of
4150. To arrive at that sum, as plaintiffs' half of the freight,
the defendants claimed a right to deduct $712.62, upon an
alleged indebtedness of the brig to them on an account which
accrued some two years before, and prior to plaintiffs becom-
ing owners of their portion of the vessel. This account the
plaintiffs insisted had been paid, and this question of pay-
ment was one of the questions of fact submitted to the jury.
Its determination depended on the question whether defend-
ants, in their dealings with Arnold & Co*, had extinguished
this indebtedness against the vessel, and substituted one
against that company for money lent and advanced to take
up their acceptance. I do not see why this question was not
properly submitted to the jury at the trial, nor why their find-
ng is not conclusive upon it.
There was, in my opinion, no such settlement of the defend-
ants' claim by Stinson, the master of the vessel, as concluded
the plaintiffs from questioning the right of the defendants to
retain the money. When they threatened to libel the brig,
lie receipted the account as presented, leaving the money in
their hands substantially as a substitute for the brig itself
864 DoNNELL V. Walsh. [New York,
without assuming to make any final adjustment of the claim
as a disputed one, which he was authorized to do. Nothing,
in my opinion, that occurred between the defendants and the
master authorized them to keep this money from the plainr
tiffs, unless the brig would be liable therefor upon a libeL
The finding of the jury upon the question of payment dis-
poses of that proposition, and determines that she was not so
liable.
Besides, I have no doubt the claim, if not paid, had been
BO dealt with between Arnold & Co. and the defendants that
it had ceased to be a lien upon the vessel; and the master,
who was not so when the demand accrued, had no authority
as such to settle a stale claim, which had ceased to be a lien,
out of freight belonging to new owners, who were never in
any sense personally liable for the debt: KeUey v. MerriU, 14
Me. 228; 1 Parsons's Maritime Law, 884. The judgment
should be affirmed.
Judgment affirmed.
Law Of Past OwxnEBS 07 YiasaLS! See generally, on ^tdB nibjeoti Free-
man on Co-tenancy and Partition, 2d ed., c. 17; Abbott on Shipping, c. 3.
Ifature qf Interest qf Pari Owner, — Property in a Teasel may be acquired
by Beyeral persons by a joint bnilding or a joint porohase, or by the porohaae
by one of a part interest; bat however acquired, unless it be by the several
owners as partners, or with the intention of holding the vessel as partnership
property, the several part owners hold as tenants in conmion with each other
of their respective shares, each having a distinct although undivided inter-
est in the whole; and upon the death of any one of them his interest goes to
his representatives, and not to* the other owners by right of survivorship;
they are not joint tenants: Abbott on Shipping, 5th Am. ed., 08; Freeman
on Co-tenancy and Partition, 2d ed., sec 379; Knox v. OamfheU, 44 Am. Beo.
199; MUbam v. QuyOier, 60 Id. 681; Elder v. Larrabee, 71 Id. 567; Alien f.
ffawU^, 63 Id. 198; Donald v. ffewiU, 33 Ala. 534; PiehereU v. FiA, 11 La.
Ann. 277; Otoena v. Dana, 15 Id. 22; Harding v. Foxerqft, 6 Me. 76; LairrJb
Y. DurarU, 12 Mass. 54; BferriU v. BarHett, 6 Pick. 46; FremA v. Prke, 24
Id. 13; ykoU v. Mwrnford, 4 Johns. Ch. 525; S. C, 20 Johns. 611; CowMa
Appeal, 79 Fk. St. 220. MadacUan, in his treatise on the law of shippings
page 87, denies that part owners of vessels are tenants in common, saying
that " if a ship or shares therein are vested in several persons jointly with
unity of title, and no distinction of interest, they are joint tenants of the
property so held." The English editor of Abbott on Shipping, in a note at
page 97, takes a somewhat similar but less advanced position. He says: " If
the interests are not severed and distinguished, but the entire ship is granted
to a number of persons generally, it is apprehended that they become joint
tenants at law, and that the rule ju$ accreeoendi inier merealorea locum non
habet, which is applicable to a ship, is to be enforced only in a court of equity. "
^is position, however. Is not approved by the American editor (Mr. Juatios
Story), and he dtes anthorities to support his view: Abbott en Shq^ping, 07
sotA 1 And Mr. Freeman, in his work on co-tenancy, section 879, note» says
June, 1865.] Donnell v. Walsh. 365
tbfti the American tezt-writera generally repodiato the dlatinctJon aonght to
be introdnoed by the note to Abbott^ citing Parsons on Shipping, page 90;
Story on Partnership, section 417. And be says farther, that the position of
both Mr. Maclachlan and the editor of the note in Abbott, so far as he has
been able to ascertain, ia without support in the reported adjudications. Ko
instance can be found where courts have held part owners of ships as joint
tenants, so that the Jua aecre$cendi was allowed between them. And tiiese
statements are supported by judicial authority: See the cases cited abore^
and also ifoisfoffT. TheRutan, lint. Eev.Eec 125; i?eiofM ▼. LeuTM, 2 Paine
a C. 202; Magruder y. Bcwie, 2 Crim. 0. 0. 577; Sheehan v. DoLrympU^ 19
Mich. 241; Bvckman v. BreU, 22 How. P^. 333; WrigU y. ManhdU, 3 Daly,
831, dth^ the principal case at page 332; BvXkUy y. Barber, 6 Ex. 164; S. C,
1 Eng. L. ft Eq. 506. In this country, the specification of the shares of each
part owner in the r^^ister and bill of sale has often been omitted, and still
has not occasioned the parties to be regarded as other than co-tenants: Mer-
Ha y. BartleU, 6 Pick. 46; Thamdihe y. De Wo{f, 6 Id. 120; Glover y. AuaUn,
6 Id. 209; Glover v. Hufmeuxll, 6 Id. 222; OA/ y. ^fe /im. Cb., 4 Mason, 172,
890.
A yessel may be held by part owners in partnership as any other chattel:
PhU&pB y. Pwinffton, 15 Me. 423; Harding y. Foxerqft, 6 Id. 77; Lamb y.
Durante 12 Mass. 54; S. 0., 7 Am. Dea 31; Seabrooky, Boae, 2 Hill Eq. 555.
But while this is so, it is certain that the mere fact of part ownership raises
no presumption of partnership: ffotdemese y. Shachels, 8 Bam. ft 0. 612; Pat-
iermm y. Chalmers, 7 B. Mon. 595; Knowlkm y. Reed, 38 Me. 246; WiUiama y.
Sh^^fpari, 13 N.J. L. 76; Hopkmay. Forsyth, 28 Ue. 246. luMaq/r. DtWolf,
8 Wood, ft M. 193, it is said that to hold them to be partners without au ex-
press sgreement would not only be yiolative of the principles goyeming
co-tenancy, but would enable one part owner, though of the smallest or eyen
an insignificant share, to sell the whole of the yessel. While the question
whether a yessel is held as partnership property is generally determined from
an express agreement on the subject, circumstances in her acquisition and
use may be such that she will be considered as part of the partnership prop-
erty, — the stock in trade: Hopkins y. Forsyth, 53 Am. Deo. 513. Thus,
where a firm contracted to carry the mails, and in order to fulfill its contract
purchased a boat necessary upon the route, and shared the expense thereof, it
was held that the boat was partnership property necessary in the business
in which the partners were engaged: Allen y. Hawley, 63 Id. 198. Where
the part owners are so held to be partners, the yessel as a piece of property
Is subject to the ordinary laws of copartnership: Patch y. WheaUand, 8 Allen,
102; Harding y. Foaserqft, 8 Me. 77; Phillips v. PuHngton, 15 Id. 427; Lamb
y. Ihtrant, 7 Am. Dec. 31. Thus one partner may mortgage the yessel: Patch
y. Wheatland, 8 Allen, 102; or make ayalid sale of it: Lamb y. Duratd^ 7 Am.
Dec. 31.
Part owners, while they may not be partners by virtue of their common
ownership, are frequentiy partners in regard to the employment of the yesseL
ThxM where part owners employ the yessel in an adyenture or business to the
cost of which they jointiy contribute, and in the loss or profit of which they
jointiy share, they become partners in regard thereto: Jones y. Pitcher, 24
Am. Dec. 717; see Hopkins y. Foreyih, 53 Id. 513; MerriU y. Walsh, 32 K. Y.
685. The rule of the principal case, that owners of a yessel are co-tenants as
far as conoems the ownership of the yessel, but as concerns the freight and
cazgo^ they are joint tenants or partners, is supported by the authorities gen-
erally: Jones y. Ptte^, 24 Aul Dec 733; NkoU y. Mwt\ford, 4 Johns. Ol
866 DoNNELL i;. Walbh. [New Yoik^
022; &a,20Joh]ii.611;i97RftAT.2>ei9i2ea»Ck)^7p.400$/>o^^
1 Yes. Sr. 497; Ex parte Parry, 5 Yes. 675.
Jtekction qf Part Ovmera to Bach Other, and ^g^ and LiaMUtiee QeneraifjfL
—As between part owners, in that relation, there is no privity, and neither
b bound by the nnanthorized acts or admissions of the other: Jaggere ▼. Bht-
wtnge, 1 Stark. 64; OgUtiby y. Steamer, 10 La. Ann. 117; McLeUan v. Ccx, 68
Ajn. Deo. 736; Dan v. Brown, 15 Id. 895; MUchellT. ChanJbere, 43 Mich. 160;;
8. 0., 88 Am. Bep. 167. So held as to admissions of ownership: Jaggere t.
Binnings, eupra. Neither can act as the agent of the others so as to bind
them withoat first showing his aathority. Thus one has no authority to sell
or transfer the interest of the other: ffenehaw v. Clark, 2 Root, 103; Conrtm**
Appeal, 79 Pa. St. 220; though he may transfer his own interest to whom hs
pleases, and withoat notice to the others: See Mafilachlan on Shipping, 97»
101. Where contraband goods belong to a part owner of a ship, the contra-
band penalty, or rather the penalty of contraband, affects only the intereal
of the part owner to whom the goods belong, and not the interest of his
coHywners: Jonge Tcbias, 1 0. Rob. 329. One part owner has no implied
authority to effect a policy of insurance on the interest of the other: Hooper
▼. Lusby, 4 Camp. 66; French y. Backhouee, 5 Burr. 2727; BeU y. Humphrka^
2 Stark. 345; Pe(nia Ina. Co. y. Hall, 12 Mich. 202; Holcrqft y. WWtee, 16 Ind.
878; Patterson y. Cfkalmers, 7 K Mon. 595; Turner y. Burrowe, 8 Wend. 144;
Sawyer y. Freeman, 35 Me. 542.
It was the yiew of Kent and Abbott, that where necessary for the preeef^
yation and profitable employment of the yessel, one part owner would hay«
an implied authority to bind his co-owners by his contract for repairs and
stores: 3 Kent's Com. 155; Abbott on Shipping, 105; and their opinion in
supported by Oleadon y. TinUer, Holt N. P. 586; Wright y. HunUr, 1 Easl^
20. But Mr. Freeman, in bis work on co-tenancy, says that the rule is too
broad as thus stated, and that the implied authority must be established from
other circumstances than that of co-ownership, and this opinion is well sup-
ported by the cases of Brodie y. Howard, 17 Com. B. 109; S. C, 33 Eng. L^
ft Eq. 146; ,Stedman y. Fiedler, 20 N. Y. 441; Elder y. Larrabee, 71 Am. Dee;
567. In the first case cited, it is said that among the circumstances tending
to show such authority may be the fact of former similar acts by a part
owner, recognized or not dissented from by his co-owner. Mr. Freeman (see-
tion 884) states the rule in substance as follows: That the acts will be deemed
authorized if one, with the knowledge and without the dissent of the othen^
orders necessary repairs and supplies; that one owner cannot be held liable
if he has expressly notified the otiiers that he will not join in making repaiiv
or procuring supplies; and that third persons are bound at their peril to aa*
certain whether the implied authority of the part owner for whom he so acts
has been reyoked by such notice. The early cases in Maine held that a part
owner ordering supplies and repairs in the home port was presumed to do ■•
on his own account, and not for his part owners: Benaon y. Tkompeon, 46 Ank
Deo. 617; Elder y. Larrabee, 71 Id. 567; but in a late case, Bowen y. Petera^
71 Me. 46d» it is held that all the part owners will be liable, unless their dis-
sent is shown, or want of authority on the part of the owner ordering the ro>
pairs or supplies is in some other manner established.
A part owner has no power to purchase a cargo on credit^ and therebx
create a Hen against the yessel, though he be acting and authorised to act am
its master: Ole Oleaen, 20 Fed. Rep. 384. Kor can a part owner make a
tract applying the earnings to the payment of his personal obligations:
van y. Dynumd, 3 Wood, 141; A, M. BUaa, 2 Low. 103. He cannot make *
June, 1865.] Donnell v. Walsh. 867
draft against the yaflsel for the payment <»f insoiance on it for the benefit of
a third person: Woods ▼. Pkk^ 90 La. Ann. 1095. Having anthority to sell
the vessel, he would not be aathorised to draw in advance against tiie fund
to be realised by the sale before it beoomes due: WkUon v. Springt 74 N. Y.
160.
In cases of torts, the roles are said to be the same as apply in cases of or-
dinary co-tenancy. It seems th»t where one makes an unauthorized sale of
the whole of the common property, trover will lie against the seller, or against
the purchaser if he again sells as his own: 1 Panons on Shipping, 93; but
trover or replevin will not lie for mere dispossession of the plaintifr: Id.|
Freeman on Co-tenancy, sec. 886; nor can he maintain replevin or trover un«
der circumstances which would not justify the maintenance of such action
between other tenants in common: Heath v. Bvhbard, 4 East, 110; Maiyhao v.
fferridk, 7 Com. B. 229; MiUmm v. OtOher, 8 Gill, 92; ffadeU v. Potier, 131
liass. 50. Thus a part owner of a vessel cannot maintain replevin for his
undivided part, though he owns a major interest in the vessel: HadoeU v.
PoUer, tupra; Gardner v. JhUch, 9 Mass. 427. So one part owner cannot be
held responsiJjle for a careless use of the vesseL The other owners must look
to its protection if they are not satisfied to leave it in the care of one of them:
Moody V. Buck, 1 Sand. 904.
Part owners, as such, have no lien upon the vessel or the interest of the
other owners therein, merely by virtue of part ownership, for advances or
disbursements on account of the vessel, or on account of the business in which
it is engaged, but such lien, if any, arises out of the relation of partnership
or agency existing between the part owners: 1 Parsons on Shipping, 115|
Freeman on Co-tenancy, sec 386; The Jennie B, QUkey, 20 Fed. Rep. 161;
Btaden v. Qordner^ 4 Pick. 456; Qreen v. Brigga, 6 Hare, 395; Mumford v.
KvcoO, 20 Johns. 611.
Where part owners disagree as to the employment of the vessel, it is held
that the decision of the owners of the major portion of the vessel must con-
trol, and will be enforced in a court of admiralty: Flanders on Shipping, sec
365; Tht Ocean Belle, 6 Ben. 253; Southworth v. Smiih, 71 Am. Dec. 72; Gray
V. Allen, 45 Id. 222; Thame v. Southard, 26 Id. 467. Where the owners of
one half the value desire to employ the vessel, and the other half desire it to
remain idle, the courts will favor the former, in the interest of commerce:
Story on Partnership, sec. 435; Flanders on Shipping, sec. 367; Freeman on
Co-tenancy, sec 389. Where a majority are unwilling to employ the ship,
and the minority desire to do so, they may compel its employment by giving
the proper security: Orleans v. Phoebus, 11 Pet. 183; Tunno v. Betsina, 5 Am.
Law Reg. 406. l^e condition on which one lot of the owners may employ
the vessel when the others dissent and desire it to remaia idle is the giving
of security equal to the value of the shares of the dissentient owners for the
safe return of the vesseL When this is done, the latter are not responsible
folr any losses, nor entitled to any profits of the employment of the vesseli
Coyle v. Copies, 7 Saw. 360; The Talca, L. R. 5 C. P. Div. 169. The only
purpose of such security, and the only extent to which security can be re-
quiredy is for the safe return of the vessel: The Appollo, 1 Hagg. Adm. 312;
Ocean Belle, 6 Ben. 253.
Another remedy, only called into action when the law furnishes no other .
equivalent relief, is to decree a sale of the vesseL This, it is said, will only
be done when the owners are equally divided as to the employment to which
they shall devote the ship, or as to some other matter which must be decided
before the ship can be employed: Anna H, Smith, 10 Ben. 110; Coyne v. Capltt,
868 Pbice v. Lyons Bank. [New York,
7 Saw. 860; LewU t. Kbmep, 5 DilL 159; DavUr. affeneoo^ 8 WalL Jr. 890|
Tuimo T. Betekia, 5 Am. Law Beg. 406.
When an aoooonting is neceasary between part owners, — genenJly whera
they are partners in the yessel or in the enterprise in whichshe is eng^iged, —
oonrts of equity will grant the relief and their jnrisdiction is ezdnaiye!
Dodge v. Hooper, 35 Me. 536; Ehid9on ▼. Simpeon, 12 Fhila. 392; Orlecme r.
Phiodme, 11 Pet 176: Southworth ▼. 8nM, 71 Am. Dec. 72; Mdlmm t. Gu^
iher, 50 Id. 681; but the bill for this purpose must state facts showing thai
the complainant is entitled to the relief: SotOhworlh ▼. Smilht 71 Id. 72.
When the liability of a part owner is fixed, he is liable In eoiUdo for the
whole amount of the debt, without reference to the proportion of his interest:
Mder ▼. Larrabeej 71 Am. Dec 567; Schermerhom y. Lolnes, 7 Johns. 811|
Oalatin r. Pilots 2 Wall. Jr. 592; Freeman on Ck>-tenancy, sec. 38a But it
is said that a court of equity would distribute the liability ratably: Mauds
sad Pollock on Shipping, 67; DoddingUm r. HaXUU, 1 Ves. Sr. 498. The
rule as to liability in eoUdo does' not apply, however, to insurers who^ in ao*
cepting an abandonment of a ship, become owners: Unked Ine. Co, ▼. SeoU^ 1
Johns. 106.
In actions against third persons, whether in contract or in tort^ all the
part owners should join, as the part owners are in law but one owner: Mao-
lachlan on Shipping, 114; Flanders on Shipping, sec. 392; Patten ▼. G'lfeniey,
9 Am. Dec 141; WhUe ▼. OurUa, 35 Mc 534; Robhuon y. Ouahing, 11 Id. 534|
and it seems that, the right of action being joint, on the death of one it yeeti
in the surviyon: Wrighi y. McanhaO, 3 Daly, 331; Buckley y. BaHier, 6 B&
164.
Pbiob V. Lyons Bank.
[88 Kbw York, K.\
TBANflAOnON D UsiTBIOUS WhICH PbOVIBBS AS CONDITIOir TO Bunwiii
or EziBTiNO Loan that new notes, really payable at the same place as
the old ones, shall be made payable at another place, so that the lender
may exact the dififerenoe of exdhange in addition to the legal interest.
Usury nr TRAiraAonov AyoiDs All SxTBflXQuxzrr SsonBmxB Osownro
OUT or It.
Action to have a bond and mortgage canceled on the ground
of usury. The opinion states the facts.
Matthews, for the appellant.
Paimer, for the respondents.
By Court, Brown, J. The case of Oliver Lee A Co.^s Bank
V. Walbridgey 19 N. Y. 184, was quoted as authority for the
judgment rendered in the court below. The plaintiffs were
bankers, doing business in the city of Buffalo, and discounted
the note of the defendants, which was made payable in the
city of New York. They offered to prove, upon the trial, that
when the note was discounted, and for some time previous
June, 1865.] Price v. Lyons Bank. 369
thereto, the rate of exchange between New York and Buffalo
was one half of one per cent in favor of the former city, and
that both parties expected that it would continue to be so at
the maturity of the obligation; the defendants, maker and in-
dorser, both resided in Buffalo, and had no expectation of
having funds in New York at the maturity of the paper; and
that the note was made payable in New York with the design
that the plaintiffs should realize from the transaction one half
of one per cent in addition to the legal rate of interest. The
proof was rejected, and this ruling presented the question
whether the facts offered to be proved constituted a defense to
the action. The bank took nothing from the proceeds of the
note at the time of the discount but the legal rate of interest,
and the contract itself was to pay the sum of two thousand five
hundred dollars at the time of its maturity, which was seventy-
five days after its date. The case presented the single ques-
tion, whether usury could be predicated of a note made and
discounted at the legal rate of interest in one part of the state,
and made payable in another, merely because the rate of ex-
change, at the time of the discount, was and might probably
continue in favor of the latter place. The court came very
readily to the conclusion that there was no taint of usury in
the transaction; there was no contract to pay more than the
legal rate of interest, and no more than the legal rate taken,
and the hope or expectation of realizing the one half of one
per cent spoken of in the proof offered was uncertain and specT>
lative; that there was nothing in the law of the contract
which secured the contemplated result, because the rule of
damages, in an action brought upon the note, allowed no in-
demnity for the loss of exchange. The court also announced,
authoritatively, the proposition, which cannot admit of contro-
versy, that a given sum of money is of the same legal and
theoretical value in all parts of the state. Whether the rate
of exchange would continue in favor of the place where the
note was payable for the period of seventy-five days, or whether,
during that time, it might not, through the fluctuations and
revolutions of trade, or the occurrence of untoward public
events, turn in the opposite direction, no one could foresee or
make certain; and it was the effect of this uncertainty and in-
ability to fix results to free the contract from the imputation
of illegality sought to be cast upon it. Had the contract pro-
vided in terms for the payment of the then difference of tht
rate of exchange by the maker at the maturity of the notCi ni
AM. Dia VOk Lxxxvm-M
870 Price v. Lyons Bane. [New York,
one would have doubted its being within the prohibition of the
statute. And so, had the difference in the rate of exchange
been taken by the bank at the time^ in addition to the usual
discount, the illegality of the transaction would have been too
clear for dispute. And this constitutes the distinction, in my
judgment, between the case referred to and that under con-
sideration.
In November, 1855, the plaintiff was indebted to the Lyons
Bank, a banking incorporation doing business at Lyons, in the
county of Wayne, in this state, in the sum of four thousand
dollars, in three promissory notes, payable at the Albany City
Bank, in the city of Albany; one for one thousand dollars, due
October 31st; one for two thousand dollars, due November 6th;
and one for one thousand dollars, due November 8th, of the
same year. In renewal of the two last-named notes for the
brief period of twenty-five days, the plaintiff was required to
give and did give his new note for three thousand dollars, pay-
able at the Albany City Bank. He was also required to pay
the discount, at the rate of seven per cent per annum, and one
half of one per cent for the difference of exchange between
Lyons and Albany, which he paid accordingly to the bank at
the time of the renewal. On the maturity of the note for
three thousand dollars, the sum of three hundred dollars was
paid in cash, and three new notes, payable at the Albany
City Bank, were given ; one for seven hundred dollars, at fifteen
days, one for one thousand dollars, at thirty days, and another
for one thousand dollars at forty-five days. The usual dis-
count was paid upon each of the notes, together with the^sum
of one half of one per cent discount for the difference of ex-
change between Lyons and Albany. These notes were repeat-
edly renewed in the same way, and by the same mode of
proceeding, until the debt was reduced to the two notes of
$750 each, embraced in and secured by the mortgage in con-
troversy, given to the defendant, Robert B. Sutton.
It is to be observed that through all these various trans-
actions the bank remained the owners and holders of the notes.
It is a moneyed incorporation, and its regular and legitimate
business is to discount and collect commercial paper at its o?m
counter. It had no place of business in Albany, and the
plaintiff did not reside or do business there. No reason is
given, and none is suggested, why the notes were constantly
made payable in a distant city, why they were made payable
at short dates of forty-five, thirty, and fifteen days, and why
June, 1865.] Price v. Lyons Bane. 371
the pretended rate of exchange was taken with the regular
interest at the time of the repeated renewals. The rule is
thought to be a sound one which imputes to a man the inten-
tion to bring about that which naturally and reasonably results
from his acts. Now, the result of this contrivance was to com-
pel the plaintiff to pay, and to enable the bank to receive,
more than fourteen per cent upon the moneys loaned for the
period of less than three months.
The facts present a clear and unequivocal case of usury.
It is condemned to this category by the clear and logical
argument of the case of Oliver Lee & Co,*8 Bank v. Walbridgef
19 N. Y. 134, cited in its support; for if it be an indisputable
proposition that a given sum of money is of the same legal
and theoretical value in all parts of the state, then, whenever
the Lyons Bank assumed the converse of the proposition, and
took from the plaintiff one half of one per cent in addition to
the legal rate of interest, upon the theory that after the lapse
of fifteen or forty-five days a given sum of money at Lyons
would not be of the same value as it would at Albany, it con-
verted what was speculation into absolute reality, and it intro-
duced a vicious element into the transaction, which brought it
within the prohibition of the statute which forbids the taking
of more than seven per cent for the loan or forbearance of
money.
There is no force in the point that giving the mortgage to
the defendant, Sutton, was a compromise and settlement of the
litigation. Whatever proof there was showed that the giving
of the mortgage to him was colorable only, and that he had
no interest in it whatever. Besides, both the referee and the
court below decided against the plaintiff, and his complaint
was dismissed upon the sole ground that the contract was not
usurious. In this conclusion I do not concur. I think the
judgment must be reversed, and there should be a new trial,
at the special term or circuit, with costs to abide the event.
UsxTBT ur T&AHBAcnoK Avoids STrssBQUSNT Securitibs growing out of
it, BBf for infltance, a morlfgage, part of the consideration for which is another
mortgage which is void for usnry: Oope v. Alden, 53 Barb. 356; S. C, 37
How. Tr. 187; and S. 0., wb nam. Cope y. Wheeler, 41 N. Y. 309, citing the
principal case.
Thb principal CASS is cited to the point that whether or not such a trans-
•etion as was nnder consideration ia a device or shift to cover nsnry is a
fneetioa of fact: BeaU v. Benjamin, 33 N. Y. 67.
872 Booth v. Bunce. [New York»
Booth v. Bunob.
L88 Nbw York, 189.]
TEAjffSAonoH WHEBXBT Man AGiNO MxMBEBs OF Embabjussed Fibm niiite
in forming manufacturing corporation under the general law, and then
transfer to it the property of the partnership, is fraudulent as to exist-
ing creditors, and the property so transferred may be taken in execution
as that of the former firm; the creditors of the new corporation have no
priority of claim to the property in its possession.
As BSTWEEN LiKNOBS WHOSE EQUITIES ABB Equal, the first in point of time
take precedence, under the mayim, Qm prior in tempore^ potiar est injure*
Fbattd is to be Pboved, and not Iniebbed, but it may be proved by a
train of connected circumstances leading to the main result.
Action for seizure and conversion of a steam-engine belong-
ing to plaintiff. The opinion states the facts.
Thampaonj for the appellants.
Van Peltj for the respondent.
By Court, Potter, J. This case may be regarded as a
contest between bona fide creditors to secure their respective
claims, in part or in the whole, from certain personal property,
to wit, a steam-engine, and the question first to be determined
is, In whom was the title to the property at the time it was
levied upon and taken by the defendants? It is conceded
that the title to the engine in question, at the time of the
plaintiff's levy upon it by his execution, was either in Mont-
gomery and Lund, then lately composing the firm of Mont-
gomery & Co., or in the corporation called " The New York
Steam Saw-mill and Machine Company." The plaintiff claims
the title to have been in the former; the defendants claim it
to have been in the latter. This, it will be seen, became the
material issue to be tried at the circuit.
The organization of this company in due form of law was
duly proved, and there was no evidence of its legal dissolu-
tion. The bed-plate and cylinder of this engine was trans-
ferred by Montgomery and Lund to this corporation, and its
completion as an engine was subsequent to that time. The
debt upon which the defendants' judgment was obtained was
contracted by this corporation in the ordinary course of their
business, and their judgment was against the corporation, and
their execution was against the property of the corporation.
The property, when so levied upon by the defendants, was in
the possession of the plaintiff, who claimed to have made title
to it under a judgment and execution, levy and sale there-
June. 1865.] Booth v. Buhob. 878
tinder, against William Montgomery and William Qaxrar
brant.
William Montgomery & Co., before January, 1855, was cozb^
posed of said Montgomery and Garrabrant and one Isaac
Reeve. Montgomery and Garrabrant purchased out Reeve's
interest, and gave him the notes upon which plaintifif's judg^
ment was obtained in payment for Reeve's interest in the firm,
Montgomery and Garrabrant continuing the firm of Montgom-
ery & Co. Subsequently, Garrabrant sold out to Montgomery,
and George D. Lund purchased an interest in Montgomery's
business, and it was still continued to be carried on in the
name of Montgomery & Co. Subsequently still, the Steun
Saw-mill and Machine Company was organized, and Montf-
gomery & Co. transferred their business and assets to this
corporation, and Montgomery was its president and piiocipal
executive, financial, and managing agent. The plaintiff claims
that the organization and conducting of this corporation was
a fraudulent device of Montgomery & Co. to hinder, delay,
and defraud their creditors, and that, as to the plaintiff, the
said organization and acts of user under it were nullities,
being fraudulent and void. On the trial, the plaintiff offered
evidence tending to prove this fraudulent device. The evi-
dence was sufficient in strength to make it proper to have it
submitted to the jury; and the learned judge charged the
jury that they had to determine but one question, and that
was, that if this corporation was &irly organized, and the sale
of the property to them by Montgomery and Lund was also
fair, and done without fraudulent intent, the defendants were
entitled to recover; if, on the contrary, the company was or-
ganized to defraud the creditors of Montgomery and Lund,
and the property was transferred to them by Montgomery and
Lund in furtherance of that fraudulent purpose, the plaintiff
was entitled to recover. This charge, I think, was entirely
sound; no exception was made to it by either party. The
jury found their verdict for the plaintiff. This, it appears to
me, is conclusive upon this feature of the case.
It is insisted that this corporation being regularly organized,
and the defendants their bona fide creditors, their corporate
existence cannot be called in question collaterally, and thus
destroy the defendants' claim against them; that only the
people of the state have a right to raise the question of their
corporate rights. This argument is not sound as applicable
to a case of fraud. As we have had occasion to repeat in
874 Booth v, Buncx. [New York»
•
another case, '^it is a principle as old as the law of morals,
and which has been ingrafted into the law of equity and
justice, that good faith is the basis of all dealing, and that
every description of contract, and every transfer or convey-
ance of property, by what means soever it be done, is vitiated
by fraud. Whether the contract be oral or in writing; whether
executed by the parties with all the solemnities of deeds by
seal and acknowledgment; whether in form of the judgment
of a court, stamped with judicial sanction, or carried out by
the device of a corporation organized with all the forms and
requirements demanded by the statute in that regard, — if it be
contaminated with the vice of fraud, the law declares it to be
a nullity. Deeds, obligations, contracts, judgments, and even
corporate bodies, may be the instrument through which parties
may obtain the most unrighteous advantages. All such de-
vices and instruments have been resorted to to cover up fraud,
but whenever the law is invoked all such instruments are de-
clared nullities; they are a perfect dead letter; the law looks
upon them as if they had never been executed. They can
never be justified nor sanctified by any new shape or cover,
by forms or recitals, by covenants or sanctions which the in-
genuity or skill or genius of the rogue may devise." The
efiect of this finding of the jury is, that this corporation was
a device resorted to by Montgomery and Lund to hinder, de-
lay, and defraud their creditors. As between the plaintilOF
and Montgomery and Lund, the plaintiff had a right to dis-
regard the corporation as a void thing, and resort to the prop-
erty of Montgomery to satisfy his demand.
Had the defendants, as bona fide creditors of this corpora-
tion (which was a valid corporation as to them), obtained a
lien by a prior levy under their judgment, it would have pre-
sented a different question. Their equities were doubtless
equal to the plaintiff's, — it was so held when last before it
was in this court, — but the plaintiff was prior in time with
his lien. Qui prior in tempore^ potior est in jure.
So, too, it is urged, that if the transfer by Montgomery and
Lund to the corporation was fraudulent, and the corporation
void as to the plaintiff, then the partnership interest of Lund
revived, and the plaintiff could only sell Montgomery's interest
in the engine, which was three fourths. This is doubtless true,
but if true, it cannot help the defendants. They are not the
creditors of Lund, but of the corporation; they could not take
Lund's interest in this engine upon an execution against the
June, 1865.] Booth v. Bttnce. 875
Saw-mill and Machine Company. The plaintiff had a right
to take the engine upon his levy if it was the property of Mont-
gomery and Lund, and is acconntable to Lnnd only for his in-
terest in it, or to his creditors in a proper form of action. Lund
IB not a party to this action, — he was not a party to the defend-
ants' judgment, — and the defendants are not in a situation
to defeat the plaintiff's action upon his rights.
Another point urged why the plaintiff should have been
nonsuited is, that the engine in question was not in existence
when Montgomery and Lund transferred their assets to the
corporation. The undisputed evidence is, that the bed-plate
and cylinder were in existence, and were transferred among
the assets; these were worth, at that time, fifty to sixty dol-
lars. While the corporation, as such, was being carried on,
about fifteen dollars of work was added to the engine; and
after Montgomery commenced again in his own name, he
completed it. It was therefore the subject of levy upon exe-
cution by a creditor of Montgomery, upon the facts as foimd
by the jury.
So, too, it is urged, that the plaintiff's claim was against the
firm of Montgomery & Co., as represented by Montgomery and
Garrabrant, and not against Montgomery & Co., as represented
by Montgomery and Lund, who make the transfer to the cor-
poration. This also appears to be true as a matter of fact;
but the finding of the jury still is, in effect, that Montgomery
and Lund made the transfer to hinder, delay, and defraud
their creditors; that Montgomery's interest in the engine, con-
sequently, was always the subject of levy by his creditors, and
the same answer again returns. Neither Lund nor Garrabrant
are parties here to complain, and the defendants are not in
condition to defend the rights of those persons.
The history of this case shows that besides four trials at cir-
cuit, and four reviews in the supreme court, it has been twice
before in this court. On the last review of it in this court, the
learned judge who wrote the only opinion that we have seen,
among other things, said: " If Montgomery & Co., whose cred-
itors were intended to be defrauded, and for whose benefit the
business of the corporation was carried on, was that composed
of Montgomery and Lund, the plaintiff was not a creditor of
that firm; if it was the firm of Montgomery and Garrabrant,
then that firm, as such, had no interest in the property trans-
ferred to the corporation, nor was it in existence so as to be en-
titled to the profits of the business." The defendants' o-ounsel
876 Booth v. Bunce. [New York,
asked the judge, at the last trial, so to modify his charge as to
adopt the language above cited from the opinion written in
this court. His honor refused so to charge or modify, and the
defendant excepted. In this refusal, the learned judge at the
circuit was clearly right. The facts upon the last trial were
not only changed, so that the charge as requested would have
been for that reason inappropriate, but the proposition of the
learned judge who wrote the opinion from which the citation
is made was not adopted by this court as law, and the case
was sent down for a new trial upon one and an entirely dif-
ferent proposition from that above cited.
We have thus disposed of all the points raised in the case
but that of an exception taken to the ruling of the judge on
the admission of evidence upon a question put to the witness
Reeve, the payee in the note upon which the plaintiff's judg-
ment was obtained. The question was, '' State what represen-
tations Montgomery made to you when you were about to
become a partner about the solvency of the firm." To this
there was a general but no specific objection, and the objectior
was overruled, and the defendant excepted. Was the admis>
sion of this evidence proper for any purpose? Reeve was one
of the first copartners of Montgomery; he had purchased an
interest in the business, as was claimed, upon Montgomery's
representations of his solvency, and of the success of the busi-
ness. To prove Montgomery's condition of past, continued,
and present insolvency, and the various expedients resorted to
by him to obtain means from, others, from time to time, to sus-
tain him in business, for the purpose of establishing a fraud,
or a succession of frauds, connected with and culminating in
the fraud which was then the main issue to be tried, I think
the admission of this evidence was not error. While fraud is
to be proved, and not inferred, it may be proved by circum-
stances, and by a train of connected circumstances leading to
the main resvdt. Upon the whole case, I am not able to see
any error that requires it to be sent back for a new triaL I
think the judgment should be afi&rmed.
Judgment affirmed.
Sept 1865.] Pbofle v. Devlin. 877
People v. Devlin.
[tt NBW Tobk. 960.J
Ih Abssngi ov OoNsmuTZONAL Fbovibion to OcnmtABT, lagialatiiie may
at its wiU moreMe or diminiiih the oompeasaticni of pablio offioen in re-
gard to fatore servioes.
Whxr Bill bab 'Babud Both BBAifinnw ov Lbowt«atub», and bxbn Signbd
by the proper offioera, and aent to the goremor for approyal, it cannot be
recalled except by the joint action of both; if the governor aenda back
the bill on the reqaeat of one house, any action it may take thereon is a
nullity.
Bill Pabsbd bt Joint Aanaa of Both Housbs ot Lbqi8latubb» signed
by their officera, and approved by the governor, and depoaited in the office
of the aecretary of atate, becomea a law, notwithatanding any action
either honse alone may take in regard thereto.
LiGISLATIVB JOUBMALB ABB VOT EVIDENGB TO ImPBAOH VALIDmr OF AOT
upon the atatnte-book; but it aeema that where the constitution requirea
a two-thirda vote for the paaaage of aa hat, oourta may look into and be-
yond the record to aee if it was paaaed as a majority bill or by the requi-
site two-thirds vote.
AcnoN to recover moneys in defendant's hand which it was
claimed he ought to have paid over to the state treasurer.
The defendant claimed the right to retain the same as his
commissions and fees. The remaining facts appear in the
opinion.
Devlin^ Riynolds^ and Hutehins^ for the appellant
CochraTiey attorney-general^ for the people.
By Court, Pottbb, J. There is no constitutional objection
to the power of the legislature to regulate the compensation
of county treasurers^or that of the chamberlain of the city and
county of New York. The same power has been before exer-
cised by the legislature: See Act of 1846, c. 189. The com-
pensation may be increased or diminished, in regard to future
services, according to the legislative wiiL The services for
which compensation is claimed in this case were performed
subsequent to the passage and taking effect of the act of the
legislature in question (if it be an act). The holding of the
office of chamberlain at a fixed compensation at the time of
the passing an act created no vested right in the incumbent
to hold it subject to the same compensation for the future por-
tion of his term of office. The law under which he entered
upon his duties is not a contract, express or implied, on the
part of the state that the same compensation will continue;
nor is an act changing the compensation of such an officer an
€x poai facto law.
878 People t;. Devlin. [New Yarki
The act of the legislature of May 4, 1863, chapter 893, re*
quires county treasurers, on or before the first day of April in
each year, to pay to the treasurer of the state the amount of
state tax raised and paid over to them, respectively, retaining
the compensation to which they may be allowed. This act
took effect, if at all, the 24th of May, 1863; the moneys in
question came to the defendant's hands after August of that
year. By article 4, title 2, part 1, chapter 8, of the Revised
Statutes, section 101 (29), the chamberlain of the city and
county of New York shall be considered county treasurer
thereof, and all the provisions of that article which apply to
county treasurer shall be held to apply to him. The fifth sec-
tion of the act of 1863 in terms authorized county treasurers
to retain the compensation allowed by law, at the time this
act took effect, but restricted them to a sum not in any case
to exceed the sum of two thousand dollars. We are not called
upon to say whether the sum of two thousand dollars is or is
. not a sufficient compensation for receiving from the collectors
above two million dollars, and transferring it over to the state
treasurer, but only to decide whether the law now allows him,
as such treasurer, a greater compensation than two thousand
dollars.
In many counties of the state, the receipt and payment over
of a larger amount of money adds nothing to the compensa-
tion of county treasurers. By an act of the legislature of 1846,
chapter 189, it was provided that the several county treasurers
of this state should thereafter receive for their services, in-
stead of the fees then allowed by law, such compensation as
should be fixed by the respective boards of supervisors of their
respective counties, in no case to exceed the sum of five hun-
dred dollars per annum. In some counties, the boards of
supervisors took action upon this statute; in other counties
they did not. Where they did not, as was doubtless the case
in the city and county of New York, the former provision con-
tained in the Revised Statutes applied, which was as follows:
**The county treasurer shall be entitled to retain a commission
of one per cent on every dollar which he shall receive and pay,
to wit, one half of such commission for receiving and the other
half for paying": 1 R. S., p. 370, sec. 92.
If, then, the fifth section of the act of 1863 was a law of the
state of New York when the funds in question came into the
hands of the defendant, and when he paid over the amount
which he did pay to the state treasurer, then the judgment
Sept. 1865.] People v. Devlin. 879
lielow is right; otherwise it should be reversed. This is the
^nly and single question that remains.
As evidence that the act in question, including the said
-fifth section, is a law of the state, there was produced on the
trial the record of such an act from the office of the secretary
^ state of the state of New York, on which record is an in-
Jkirsement, signed by the secretary of state who held the office
during the year 1863, in the usual form, certifying that the
act had been approved and signed by the governor on the
ftfurth day of May, 1863, and the further certificate of said
aecretary that the same became a law on that day. In the
printed volume of the laws of that year is a copy of the said
met; the volume from which the statute was read is certified
in like manner by the secretary of state. By the statute of
this state of 1846, chapter 24, it is provided that ''all laws
passed by the legislature may be read in evidence from the
'Volumes printed under the direction of the secretary of state."
Hie evidence, therefore, of the existence of such a statute was
pioduced on the part of the people. By the Revised Statutes,
^volume 1, page 157 (marg. paging), section 10 requires that
Hie secretary of state shall receive every bill which shall have
psflsed the senate and assembly, and been approved and
signed by the governor, etc., and shall deposit such laws in
Ills office. By section 11 he is required to certify and indorse
upon every such bill the day, month, and year when the same
«o became a law, and such certificate shall be conclusive evi*
dence of the facts therein declared.
To impeach this record, the journals of the senate and as-
sembly were introduced, which showed the action had upon
ihd said bill in those two houses to be as contained in the
leport of the referee. And the question that first arises upon
this showing is, Can a legislative act, so certified, be impeached
liy the journals of the two houses? To determine this, we
may resort to the constitution, the statute, and to the common
sr parliamentary law.
By the provisions of the present constitution, the common
law of the colony of New York, and acts of its legislature as
ihej existed on the 19th of April, 1775, and the acts of the
legislature in force at the making the constitution, were made
flie law of the state: Const. 1846, art. 1, sec. 17. ^' The legis-
lative power of the state shall be vested in a senate and
flfsembly ": Art. 8, sec. 1. "A majority of each house shall
constitute a quorum to do business, and each house shall
880 People v. Devlin. [New York,
determine the rnles of its own proceedings": Art. 3, sec. 10.
'' Each house shall keep a journal of its proceedings and ptib>
lish the same, except such parts as may require secrecy":
Art. 3, sec. 11. '^Any bill may originate in either house
of the legislature, and all bills passed by one house may
be amended by the other ": Art. 8, sec. 13. " No law shall be
enacted except by bill": Art. 3, sec. 14. *'No bill shall be
passed unless by the assent of a majority of all the members
elected to each branch of the legislature, and the question
upon the final passage shall be taken immediately upon its
last reading, and the yeas and nays entered on the journal ":
Art. 3, sec. 16. '^ Every bill which shall have passed the
senate and assembly shall, before it becomes a law, be pre*
sented to the governor; if he approve of it, he shall sign it, but
if not, he shall return it, with his objections, to that house in
which it shall have originated, who shall enter the objections
at large on their journal, and proceed to reconsider it," etc.:
Art. 4, sec. 9. '' On the final passage, in either house of the
legislature, of every act which imposes, continues, or revives
a tax, or creates a debt or charge, or makes, continues, or
revives any appropriation of public or trust money or prop-
erty, or releases, discharges, or commutes any claim or dfr
mand of the state, the question shall be taken by ayes and
noes, which shall be duly entered on the journals, and three
fifths of all the members elected to either house shall, in all
such cases, be necessary to constitute a quorum therein ": ArL
7, sec. 14.
The foregoing are all the constitutional provisions in regard
to the performance of duties by the legislature necessary te
the passage of acts in order to constitute them valid lawa
The journals introduced show, if they are legal evidence, that
three fifths of all the members present in both houses voted
for the bill in question. The bill was read a third time in the
assembly, the house in which it originated, on the seventeeutb
day of April, 1863, and was ordered by them to be sent to the
senate. On the twenty-second day of April, 1863, the bill
was passed in the senate without amendment by three fifths
of all the senators present, and ordered to be returned to the
assembly; and on the same day the same was so returned;
and also on the same day the assembly sent the said bill te
the governor. Thus far, all the constitutional requisites t6
pass the bill had been performed by the two houses of the
legislature; to make it a law required but the signature ol
Sept. 1865.] People v. Devlin. 881
the governor, which it subsequently received. By the pro-
visions of both the constitution and the statutes to which we
have referred, this bill, upon this evidence, became the law of
the state.
All that further appears by the journals of the two houses in
relation to this bill raise this question: After the passage of a
bill in the legal and constitutional form by both houses of the
legislature, and the same has been transmitted by them to
the governor in the manner provided by the constitution, have
the two houses exhausted their power over it? or can they,
or can either of the said houses without the consent of the
other, recall the bill by resolution, and revest themselves with
power further to act upon it? If they do possess the power, it
IB not found in the constitution; it is not found in the statute;
it is not shown to be the custom or usage. Although each
house shall determine the rules of " its own proceedings," no
rule for such a proceeding as that of sending for a bill in the
possession of the governor has been shown to exist; besides, the
bill at that time had become the act of both houses, and neither
had then any further control over it. The act of courtesy of
the governor in returning to the assembly the bill at their re-
quest conferred no power upon the house of assembly to act
further upon it. Even if the governor had intended to allow
ihem so to act (as by his subsequently signing the bill in the
form he first received it, it seems he did not), it is still a ques-
tion of power. No authority is shown to be possessed by the
governor to perform such an act as a part of the law-making
power. If the assembly possessed the power of recalling bills
from the governor after being passed by both houses and
sent to him, it is not found in parliamentary law, and no cus-
tom of that kind is shown. If we may take judicial notice
of parliamentary law as contained in the rules of the assembly,
made under the constitutional provision for that purpose, and
published by them in the session of 1863, no such rule or cus-
tom or law is found. According to those rules (rule 43), the
question upon the final passage of a bill shall be immediately
after the third reading; so the vote was taken in this case.
There can be but one third reading of a bill, and but one
*' final passage," in either house; this bill had received such
third reading and had its final passage in both houses, before
being sent to the governor. It having passed the senate with-
tnzt amendment, the assembly then had no power to amend
it by any rale or custom of legislation. When both housef
882 People v. Devun. [New Yoil^
hare thus finally passed a bill, and sent it to Che govemiflv
they have exhausted their powers upon it, except the power cff
sending it to the governor by the house in which it originate^
according to parliamentary law. By rule 51 of the assembly.
Red Book of 1863, pa^e 493, it is provided that " no moticxi tat
reconsideration of any vote shall be in order unless on Urn
same day or the following legislative day to that on which Urn
decision proposed to be reconsidered took place/' No evideno^
is produced of a compliance with this positive law of the mm^
eembly after the final passage of the bill before mentioned, and
after receiving it back from the governor. When express rvlm
have been adopted by such a body, by which to govern their
action in this respect, we must exclude the consideration thak
their action was exercised under some implied power nol
clearly shown. They could only act further upon this bill hj
reconsidering their action according to their law of action. TIi»
subsequent action of the assembly, as also that of the senator
in attempting to resuscitate this bill, and to give it vitality io
their or in either of their bodies, was xmauthorized and un*
usual, and it resulted in no agreement between the two housea.
By no rule or custom shown, nor by the exercise of commoa
reason, could one house by their action undo, annul, or changt
what both had solemnly done under their solemn legislative
sanction, according to all constitutional forms, and according
to their published rules and forms of law. If, then, these Iegi»*
lative journals so introduced as evidence could be regarded
as legal evidence to impeach or annul a statute so duly certi-
fied and published, taken in connection with their own pub*
lished rules, they would still fail of being sufficient to efiect
that object.
There is no doubt that each house of the legislature, bj
virtue of the constitutional provisions we have cited, and per-
haps inherently, have power to determine for itself rules and
orders to govern them in the various stages of legislation, and
in relation to all matters relating to the exercise of their rights^
powers, and privileges. When such rules or laws have beep
established by them, as they were in this instance, they be>
come the law of that body for such purpose, and are binding
upon them as the law t^ govern them in such proceedingi^
and this is called parliamentary law: Regina v. Paty^ 2 Salk.
603; S. C, 2 Ld. Raym. 1105. And when they have estab*
lished such rules, and they thus become the law, for socb
purpose, they cannot themselves arbitrarily depart from socb
Sept 1865.] Pboplb v. Devlin. 888
law, and conduct their proceedings by other roles not known
to or adopted by such body. And though acts of the legis-
lature, signed by the governor, not in conflict with the consti-
tution, may be omnipotent in this regard to overcome violations
of parliamentary law, in producing their passage, it is quite
clear that anything short of an act of the legislature can work
no such e£fect as to legalize a breach of their rules.
I am of opinion that the legislative journals were not
legitimate evidence to impeach the statute produced. They
are not made evidence by the constitution; they are not made
00 by the statute; they were never made so at common law.
They are doubtless evidence, from the necessity of the case,
on grounds of public convenience, and from the public char-
acter of the facts they contain, to prove the proceedings of the
body whose records they are, because the constitution requires
them to be kept. Whenever any act or proceeding of such a
body becomes necessary to be shown as evidence, such jour-
nals may be received; but to impeach the force and effect of
a solemn statute, duly certified, no authority can be found,
within the limits of my research, to admit them to be legiti-
mate evidence, but much authority may be found to the con-
trary.
In the case of Eld v. Oorham, 20 Conn. 16, it was held,
upon provisions of statutes, and the method of authenticating
them, similar to those of our statutes, as follows: ''When the
legislature constituted a certified copy of an act an authentic
record of the statute laws of the state, it has the same force
and efiect as if it were, in truth a portion of the original
records, as to its constituting evidence of what is stated in it.
As such, it imports absolute verity, is, in itself, conclusive evi-
dence of what it states It can neither be contradicted
nor varied as to any of the facts of which it professes to be
the memorial, and no evidence is admissible, because it would
be imavailing for that purpose."
In the case of Fletcher v. Peck, 6 Cranch, 181, Chief Justice
Marshall held that "in a contest between two individuals
claiming under an act of the legislature, the court cannot in-
quire into the acts and motives which actuated the members
of that legislature. If the legislature might constitutionally
pass such an act, if the act be clothed with all the requisite
forms of law, a court, sitting as a court of law, cannot inquire
into the motives by which law was produced."
A few cases are found in our reports in which the courts
884 People i;. Devlin. [New York,
have gone bo far as to examine whether certain acts have been
constitutionally passed, that is, whether the legislature have
power to pass the act in question, as when the constitution re-
quires that two thirds of all the members elected to vote for an
act. So held in Thomaa v. DaHn, 22 Wend. 9; and in the case
of People V. Purdy, 2 Hill, 31, Bronson, J., held that " when
the point is raised whether a two-thirds act was passed as
a majority bill only, the court may look beyond the printed
statute-book; and if the original engrossed bill, on file in the
office of the secretary of state, is not certified pursuant to the
statute as having passed by a two-thirds vote, this is at least
prinui fade evidence of the contrary being the fact."
In Warner v. BeerSy 23 Wend. 125, Chancellor Walworth
said: "I have very little doubt that this court [the court of
errors] is not authorized, upon this demurrer to the plaintiff's
declaration, to look beyond the printed statute-book for the
purpose of ascertaining whether the law of April, 1838, was
passed by a two-thirds vote, or merely as a majority bill, if,
indeed, a court is authorized in any way to institute an in-
quiry into the mode in which a law signed by the governor
and duly certified by the secretary of state was passed." In
the same case, Verplanck, senator, after an examination of
English common-law authority (page 133), says: " The stat-
ute must be its own evidence, and cannot be rebutted." And
Bradish, president, said (page 171): "I am clearly of opinion
that the question whether this act of the legislature be a law
is not a question of fact, to be tried by a jury, but one of law,
to be determined by the court only, and that by an inspection
of the record. That record imports verity Its truth
cannot be determined by a proceeding in paisj but must be de-
cided by itself on inspection. This opinion rests upon the
highest authorities, both ancient and modem": See also
Dwarris on Statutes, 28, 80, 629, 630, 632, 637; Purdy v.
PeopUy 4 Hill, 390; De Bow v. People^ 1 Denio, 14; King v.
JeffrieSj 1 Strange, 446; King v. Robotham, 8 Burr. 1472;
King v. Arundelj Hob. 109; Princess Casey 8 Coke, 145. In
Prinee*8 Case, 9upray nul tiel record was pleaded to an act of
Parliament, to which plea there was a demurrer; the de-
murrer was held good. And it was held '^that the words 'by
authority of Parliament ' in an act or charter are sufficient to
make an act of Parliament^ and that this constituted such
an act whereof the judges and all the kingdom ought to tako
notioe."
Sept 1865.] People v. Devlin. 385
Lord Coke (Co. Lit. 98 b), speaking of this act of Parlia-
ment, says: ^^ It is, among other acts of Parliament, entered
into the Parliament roll, and therefore shall be intended to
be ordained by the king, by the consent of the lords and com-
mons in that Parliament assembled; and thirdly, it is a gen-
eral law whereof the judges may take knowledge, and therefore
it is to be determined by them whether it be a statute or no.''
Comyn, in his Digest, title Parliament, citing Lord Coke's au-
thority (mfpra), says: "And therefore a man cannot plead to
it nnl tiel record; so it shall not be proved by a journal":
King v. Aru/ndel, Hob. 110. "And if the journal of Parlia-
ment be variant from the record it does no prejudice, for that
is no record": King v. Anrndel^ mpra. " So if by the roll it
appears that the bill was sent to the lords by the commons with
a proviso annexed, and no proviso is extant upon the record,
yet it shall be a good statute": King v. Arundel, Hob. 110,
111. We have no common law in this country in conflict with
this. It would be destructive not only of all public confidence,
but would open a wide door for litigation, if our statutes, pub-
lished by public authority, were liable to be annulled or
impeached by issues of fact to be raised either of fraud in
procuring their passage or in lack of conformity to rule by
either house in the usual forms of enactment. If the defense
interposed in this case that no such statute exists can be
made available, and such questions, as questions of fact, can
be brought into the courts for trial, an intolerable condition of
legal uncertainty would result. Such a case is unheard of;
it is too dangerous in its consequences to be entertained as an
experiment; it is without authority as a precedent. I have not
been able to find any error in the judgment that demands a
reversal. I think the judgment should be affirmed.
Cakfbell, J., in a ooncorring opinion, after reciting the facts of the case,
and calling attention to the questions arising ont of it, says that no citizen
can in a private controyersy call upon the conrts to go behind the record of a
statate and impeach its validity by showing that in its enactment some form
or proceeding had not been properly followed by the legislature, the supreme
law-maker. Tho power of courts is properly confined to declaring the validity
of the laws, by determining whether or not they are in conflict with the con-
stitution. He cites People v. Purdy, 2 Hill, 34, where Judge Bronson says
that sometimes, when the law requires a biU to be passed by a two-thirds
instead of a majority vote, the court may look into the act, and beyond it,
to ascertain whether such bill was passed as a two-thirds or majority biU;
•ad see the same case in 4 Hill, 394. But the precedent is a dangerous one,
and ought to be confined to this class of cases; for it is said that if a statt
▲m. Dxa Vol. Lxzxvm-d9
886 TucKEBMAN V. Bbown. [New York.
■tfttata ii allowed to be impeached byeridenoeof izr^gnlarities in its panaga^
an act of Congreaa or atatate of another atate oan aa well be impeached in
the aame way: Orem t. WaOer, 32 Miss. 650; Paeifie R B. Ch.r. Oronemr^
23 Ma 863; Eld r. Oorham, 20 Conn. 8. After a bill haa passed both honsaa
and gone to the governor, it is past recall, except by joint action of both
hooses, and the snbseqnent proceedings in regard to it by one house alone are
nnll and Toid.
Judge Oampbell says that the election of defendant to his offioe gave him
no vested interest in the term or emoluments thereof and that they could be
changed by the legislature at will, citing CkmnorY. New York, 6 N. T. 286w
In conclusion, he says that the judgment ought to be affirmed.
PowxB ov Ck>UBT8 TO Rbsobt TO JouBHALs OF Lboolatubx, and other
evidence, to determine validity of statutes, regularity of their passage^ ete.
See the exhaustive note on this topic to People v. 8 tame, 86 Am. Dec 86^
864. The record of the statute is presumed to be correct^ and reaort cannot
be had to the file or journal to determine whether it was properly passsdi
People y.Commieahnen, 64 N. T. 279; Evcma r. Brwme, SOInd. 626: SiaUr.
Bagood, 13 S. 0. 6a
LiGISLATU&S MAT, IN ASSENOI OF CONSTITDTIONAL FnOVmON tO the OOa-
traiy, change the terms of st4te officers, and their f eea and emoluments, and
may entirely abolish the office. Election to office confers no vested rifi^t^
nor does it constitute a contract entitling the officer to continue in office, and
to receive the same emoluments which were allowed at the time of his elec-
tion during the term for which he was elected: People v. Eddy, 67 Barb. 688;
People V. Stevene, 61 How. Pr. 164; People v. SupervUore, 11 Hun, 308, citing
the principal case; and see Sitpervieore v. Hendry, 68 Barb. 284, characteris-
ing the part of the opinion on this point as obUer, and criticising it as going
too far in regard to the legislative power.
TUOKEEMAN V. BeOWN.
[S8 New Toms, 297.]
Hon Ozmr iob Pubposi of iKCBSAflnro Capital Stcxsk of Mdtital Iv-
BUBAHOI CoMFAiTT to the amount required by statute to be subscribed
prior to its organisation is payable absolutely; a private agreement that^
after passing the examination of the commissioners provided for by law
for the purpose of asoertaining the fact of the subscription of the propsr
amount of capital, it should be given up, and a lesser one substituted, b
a fraud upon the law; and the maker remains liable though such note be
surrendered and destroyed.
Action upon a promissory note. The opinion states the
&cts.
Burditt, for the appellant.
Mygattj for the respondent.
By Court, Wright, J. The note on whioh the aotion la
brought was made by the defendant for the purpose of afinifltinf
Sept 1865.] TucKBBMAN V. Brown. 887
to form the New York Central Insurance Company, under the
general statute of 1849, providing for the incorporation of insur*
ance companies: Laws of 1849, c. 808. This, if not in terms
admitted in the defendant's answer, indisputably appeared by
the evidence adduced on the trial. The preliminary steps had
been taken, under the act, in October, 1850, to organize the
company on the mutual plan of insurance. Notice of the dec-
laration of intention to form the same had been given, and the
charter agreed on, approved by the attorney-general, and filed
with the secretary of state. Before, however, the organization
was complete, and the company authorized to commence busi-
ness, it was required by the act that agreements for insurance
should have been entered into, the premiums on which should
amount to one hundred thousand dolkirs, and that notes should
have been received for such premiums: Sec. 5. These ad-
vance notes are declared capital stock, valid, negotiable, and
collectible, for the purpose of pajdng any losses which may
accrue or otherwise. In February, 1851, the defendant agreed
for insurance, and gave the company the note sued on for the
premium. The comptroller, in pursuance of the eleventh sec-
tion of the act, having subsequently appointed commissioners
to make an examination of the capital, securities, and affairs
of the company, and report the result thereof, the defendant's
note (its date being then in blank) was produced to tiiem, and
was one of the notes forming, in part, the basis of the certifi-
cate, on oath, of the commissioners '^ that the company has
received and is in actual possession of premium notes based
on applications for insurance to the full extent required by the
fifth section of the act of April 10, 1849, to wit, to the amount
of one hundred thousand dollars." That it was made to be
BO used, and was one of the original "stock" notes given for
the express purpose of aiding in the formation of the company^
was thus conclusively shown, and in fact was not denied, either
in the pleadings or on the trial. The defense alleged, and at-
tempted to be made available, was, not that such was not the
character of the note, but that by a special agreement between
the defendant and the agent of the company, at the time of
the agreement for insurance, the same was not to be taxed or
assessed, but when the company was organized, returned, and
a smaller note (one for the usual amount charged for insurance
in such companies) substituted in its place; and that, in pur-
suance of this agreement, the note was surrendered the earae
or the next year, and one for seven hundred dollars substituted
888 TucEERMAN V. Bbown. [New York,
for it, which latter note was, in July, 1855, paid and giTon up
to the defendant.
The note, then, being confessedly one made for the purpose
of complying with the provisions of the fifth section of the
act of April, 1849, and forming a part of the original capital
of the company contemplated by such act, it was payable
absolutely, and was collectible to the full amount specified
therein, without alleging or proving any loss or assessment by
the company or the receiver. In White v. Haighty 16 N. Y.
310, this court determined this to be the nature and character
of a note in the precise form of the present one, and given
and used under similar circumstances. It was unnecessary
that the receiver should have alleged and proved, as he did,
an assessment of the note to pay losses and expenses, and the
offer to show that the defendant was insured in a department
of the company in which the losses were fully paid, and that
his note was assessed to pay losses in the stock department
(meaning a department where the policies were issued for a
cash premium only), was wholly immaterial. The note was
absolute, and payable at all events, without an assessment.
There is therefore really but one question in the case, viz.,
whether the surrender and cancellation of the note, by the
ofiScers of the company, after its organization, in pursuance
of an agreement between the defendant and its agent, when
given, constituted any defense to an action by the receiver to
enforce it I think it did not. The fraudulent nature of the
transaction relied upon to avoid its payment is unmistakable,
and if successful, would be a reproach upon the law. The
company could not organize and commence business until it
had received and actually possessed premium notes, based on
applications for insurance, to the amount of one hundred
thousand doUars. To effectuate this end, the defendant be*
came an applicant for insurance, and gave his note of fourteen
hundred dollars for the premium, which note was subse-
quently used, and formed in part the basis of the certificate
of the comptroller that the company was possessed in good
faith of an amount of capital equal to the amount specified
in the fifth section of the general law. The object to be at-
tained by the application and note was well understood by
the defendant; he was in no way deceived or misled as to that
object. Upon the organization of the company (which was
about the 1st of April, 1851), a policy was issued to him. The
application and note attached thereto remained in the custody
Sept 1865.] TucEEBMAN 9. Bbown. 389
of tbe oorporatioii until some time in 1851 or 1852 (the pre*
dee date does not appear), when its general agent, with the
assent of its officers and directors, returned the note to the
defendant, substituting in place thereof, and attaching it to
the application, a note for seven hundred dollars, the policy
remaining unchanged. This is claimed to have been done in
pursuance of and to carry out an agreement between the de-
fendant and the agent, made at the time the note was given,
to the effect that when the company was organized, the note
should be returned, and one for tbe usual amount charged
for insurance in mutual insurance companies substituted in
its place. It is conceded that the agreement was not strictly
performed, the seven-hundred-dollar note substituted being
much larger than the usual guaranty note given upon insur-
ance of property like that covered by the defendant's policy;
but the reason assigned for this deviation is, that the com-
pany did not wish to reduce its capital below one hundred
thousand dollars. Subsequently to this change of notes, and
in July, 1855, the defendant paid to the secretary of the com-
pany $230, in full satisfaction and settiement of his liability
as maker of the seven-hundred-dollar note, and also the
liability of four other persons as makers of original notes that
had been taken and reduced in a similar way. These notes
were originally given for over eight thousand dollars. There
was no formal action taken by the company in relation to this
settiement of the reduced notes, but it was fully understood
and authorized by its officers and directors, and the money
paid to and received by it.
Such a transaction has no justification in law. Of the brood
of insolvent corporations launched upon the community under
the provisions of the general act providing for the incorpora-
tion of insurance companies, many doubtless from the begin-
ning were unworthy the public confidence, but none, perhaps,
were ever organized or carried on by or through the i)erpetra-
tion of a. grosser fraud than the one whose origin and short
career this case discloses. The defendant's note, as is seen,
was by no means the only one imposed on the commissioners
as the bona fide capital required by the act, and that were sub-
sequentiy reduced, and finally canceled and given up to the
makers for a nominal consideration. There were at least four
others arranged and settied by the defendant himself, and
from the fact that after a brief existence the sham organiza-
tion exploded, the infeienoeis reasonable that there were more
890 TucKERMAN V, Brown. [New York,
of a like description. That the defendant aided and abetted
the fraud of the officers of the company is very manifest, al-
though not an officer himself. He was a party to an engage-
ment to insure his property, giving a premium note five times
greater than the ordinary amount charged for insurance by
companies organized on the mutual plan, knowing that such
note was to be used to constitute in part the capital reqtdred
to perfect the organization and obtain the necessary authority
to issue policies. In truth, the note was never intended as
anything more than a sham, being given with the express
understanding that after being exhibited to the commissioners
as evidence that the company had complied with the law, and
the company had legal existence, it should be returned to the
defendant, and one for a smaller amount take its place, which
arrangement, in the order of events, was duly consummated.
It is idle, in view of these circumstances, to allege or pretend
that the defendant was unwittingly misled or deceived by any
one, or an unwilling abettor of the fraud of the corporation or
its officers. In fact, the note was surrendered and canceled
in accordance with the fraudulent agreement entered into by
the parties at the time it was given, and it is this executed
agreement that is now relied upon as the ground of defense;
for there is no pretense that such surrender or cancellation
was for any valuable consideration given or paid the company
whilst solvent, if it ever was in that condition.
Clearly, a defense of that kind rests on no legal foundation.
It is an attempt to set up the violation of an express statute
and the fraud of the parties in bar of a recovery. Even had
the defendant been guiltless of any fraudulent intent in the
matter, it would have availed nothing. He did not pay his
note, but the same was canceled and given up in execution of
an illegal and void agreement. There is no mistaking the
purpose of the legislature, or the end to be attained by the pro-
vision that advance premium notes, like that given by the
defendant, to the amount specified in the act, should be re-
ceived and held by a mutual insurance company before it
commences the business of insurance. That purpose was to
afford better security to members and policy holders than they
would otherwise have, by requiring such company to possess
a fiind or securities in the nature of invested capital immedi-
ately available for the payment of losses. To effect this, it
was provided that these notes for premiums in advances upon
risks contracted to be taken before the company has lega]
Sept 1865.] TucKSBMAN i;. Bbown. 891
existence should be considered capital; were to be deemed
Talid, — that is, operative of themselves; might be negotiated or
transferred by the corporation at pleasure; or sued for and
recovered at their maturity; — in short, they were invested with
all the characteristics of absolute and actual securities for the
money mentioned in them. An agreement like that shown in
this case, to surrender one of these' notes upon the organiza-
tion of the company, is plainly void; and its surrender and
cancellation in pursuance thereof by the corporation (irrespec-
tive of the fact of being a violation of an express statute), a
fraud on its policy holders and creditors.
In Brouwer v. Appleby, 1 Sand. 158, an agreement by the
president of a specially chartered mutual insurance company,
on receiving a note made in advance for the better security of
dealers, that it should be given up at its maturity, was held
Ydd; and in Brouwer v. HUl, 1 Id. 629, it was held that a
note of that description cannot be given up to the maker with-
out consideration, even by the board of trustees of the com-
pany, and if so given up, a receiver of the company's effects
may recover it from such maker. The first-mentioned decis-
ion is said to have been affirmed in this court, but whether so
or not, it is clearly correct, both on principle and authority.
A surrender, without consideration, and in violation of IaW|
of one of these notes given for premiums in advance (the ob-
ject of them being the better security of dealers with the com-
pany), being a fraud upon its creditors and parties insuring
in it, a receiver of its effects, in case of insolvency, may treat
such surrender as void, and recover the amount of the secu-
rity.
I am of opinion, therefore, that the plaintiff, as receiver of
this insolvent corporation, was entitled to recover the amount
of the defendant's note. The exceptions having any materials
ity were to the refusal to nonsuit, and the direction of a ver-
dict by the judge. If the view taken of the case be the correct
(me, the nonsuit was properly denied; and as the facts were
undisputed, leaving no question for the jury, the direction of
the verdict was not error. The judgment of the supreme court
should be affirmed.
Judgment affirmed.
BnTDDto Efuct ov SinnoBimoKS to OoRPoaATR Stock: See HeasUm ▼•
anehmaU eie. R. R. Oo.^ 79 Am. Deo. 430^ and see the caaee cited in the note
thereta To the point that each a rabecription is an absolute binding agree*
■MBt^ flee the principal oase cited in C^iCony. 7Ve6i&)db, 13 Nat Bank. Beg* Hi.
892 Chapman v. New York Cbntiial R. R. Co. [New York,
Chapman ti New Tobk Cbntbal R R, Co.
18S Nbw Yobk, 869.1
RATT.^AAn CkncPANT IS LiABLB lOB Sebtaht's Kmuokncb in laaying down
the ban in a fence, whereby the plaintiff's hones escaped and were killed
by a passing train, though the senrant was employed as a day-laborer,
and his act was done in the night-time, and not in the buineBS of the
company.
Action against a railroad company for negligence of its
servant. The opinion states the facts.
Palmer^ for the appellants.
Peddie, for the plaintiff.
By Court, Campbell, J. The plaintiff brought this action
to recover damages caused by the alleged negligence of the
defendant in leaving down bars in the fence on the side of
their railroad track, whereby the horses of the plaintiff in the
night-time escaped firom his adjoining field on such track, and
were struck and killed by a passing engine of the defendant.
One Andrew Ryan, who was then and had been for some time
in the employment of the defendant as a day-laborer, receiving
his pay monthly, but at a fixed rate for each day's labor, on
the night of the accident took down the bars for the purpose
of passing with a team, being engaged at the time in a busi-
ness which concerned himself, and in which the defendant had
no interest whatever. The bars were left down by Ryan, and
through the opening the horses passed onto the track and
were killed. The referee, before whom the cause was tried,
found that while Ryan was thus in the employ of the defend-
ant as a day-laborer, it was understood in virtue of that em-
ployment that he might be called upon in case of accident to
perform extra labor, receiving compensation therefor, and if
at the time after his day's labor was over he saw anything
amiss, he was required to give necessary attention to it without
being specially directed so to do. In the language of Ryan,
who was examined as a witness: ''If I seen anything amiss
after that I had to do it." The referee found that under that
employment it was the duty of Ryan as the servant of the
company to replace the bars, and that his negligence was that
of the company, and he reported in favor of the plaintiff, and
the judgment was affirmed in the seventh district.
If the bars had been taken down by others, and Ryan, oo-
cupying the relation he did to the company, had seen them*
Sept. 1865.] Ingram v. Robbins. 393
or had been notified, there can be no doubt but it would have
been his duty at once to have put them up. That he took
them down himself can make no difference; the neglect of duty
was in leaving them down. For that negligence, and which
caused the loss of the plaintiff's horses, I think the company
must answer in damages.
That Ryan was intoxicated at the time was the misfortune
of the company. That he had been retained in his place
when known to be intemperate was the fault of his immediate
superior officers. But I am unable to see how this question of
intoxication in any way affects the legal rights of the plaintiff,
who seeks simply to recover for the loss of his property, caused
by the neglect of the defendant's servant The judgment
should be affirmed.
Judgment affirmed.
Ingram v. Bobbins.
[8S KBW YoEK, 409.1
On Covwwbboov of Jusoksmt, AmiuviT to Aooohpamtoto StAmaiiT of
VAXjn, to the effect that the defendant " belieyes the ahave statement is
trae,** is insufficient; he ninst swear positively to the tmth of the facts,
BO far as they were within his knowledge. But if the error occorred
from the inadvertenoe of the attorney employed to enter np the judg-
ment^ the oonrt may permit the verification to be amended; and an error
In the statement itself is likewise amendable for a similar reason.
App£AL from orders refusmg motion to set aside a judgment
by confession, and reducing the amount of another judgment
by confession. The opinion states the facts.
BurriUy for the appellants.
Townsend^ for the respondent.
By Court, Denio, C. J. The most important practical ques-
tion vpon this appeal is, whether the statements upon which
the firot two judgments were entered were properly verified.
An affidavit was annexed to each, in which it is said that the
deponent ''believes the above statement of confession is true*"
The statute requires the statements or confessions to be veri-
fied by the oath of the defendant.
Where, in the course of legal proceedings, the oath of a party
is required, the intention is to appeal to his conscience, and to
his religious sense, and also to the dread of the temporal pun-
394 iNaBAM V. RoBBiNs. [Now York|
ishznent which the law has denounced against the crime of
perjury. Where the matter to which the oath relates is within
the personal knowledge of the jmrtj, the usual form is a direct
and positive affirmation that the statement is true. Where
th«^ matter to be proved concerns the acts of others, trans-
acted when he was not present, and where his knowledge
•consists in the information which he has received respecting
it, the form adopted is to state the information, and add that
the deponent believes it to be true. All the material facts
<X)ntained in these statements are of acts in which the depo-
nent, the defendant Bobbins, was the principal actor. In one
of them they were notes made by himself, for a consideration
passing between him and the plaintiff, and in the other, they
were accommodation indorsements of notes made by himself,
which notes he had procured to be discounted, or had negoti-
ated to banks and to his creditors. The statements related to
his own act and deed, and not at all to matters of which his
knowledge was derived from information. The oath which he
made was ex parte. The proceeding did not contemplate the
presence of any person having a conflicting interest who could
inquire into the grounds of the defendant's belief.
In requiring that he should verify the statement, the legis-
lature intended that in so far as it related to things within his
own knowledge, he should affirm it to be true; a statement
that he believes it, is something considerably short of this.
How far short it would be in a given case would depend upon
the conscientiousness, and to some extent upon the intelli-
gence, of the person using the term. No one can fail to feel
that when that term is used the party commits himself less
conclusively to the principal fact. It is a qualification of the
direct affirmation of the existence of the fact. Besides, the
word is inappropriate when used in relation to a fact which
the party either knows or does not know. It relates to faith,
-and expresses the evidence we have of things not seen, but
nevertheless credited from what we have heard, or firom other
collateral facts which we do know, and which argumentatively
lead to the principal thing.
To hold this oath to be a compliance with the statute would,
in my opinion, be very hazardous. Many of our rights and
interests are liable to be affected by ex parte affidavits. The
readiness with which they are made by interested parties is
proverbial. If you allow such parties to adopt a form of words
less binding upon their conscience than a direot afl&rmatiOQ
Sept. 1865.] Ingram v. Bobbins. 896
would be, we weaken to that extent the Bafeguards which the
law has provided.
It is said that a party may be convicted of perjury in swear-
ing to his belief of that which he knows to be untrue. It
appears that this is so; but the evidence in such a case, and
in one where a party swears directly, is quite different. In
the former, the prosecution, in addition to negativing the
principal fact, would be obliged to establish the corrupt mo-
tive by aflirmative proof. In the other, if the main fact were
disproved by sufficient evidence, it would rest upon the ac-
cused to show that the swearing was not corrupt, but the
result of mistake, or the like, ^he onus should rest on himi
and au affidavit which will invert the order of proof ought not
to be held sufficient. Such an oath is not a responsible one.
It follows that the statements in these cases were not verified
according to law.
The plaintiff in the two judgments, in opposing the motion
to Bet them aside, showed satisfactorily that the error arose
from the inadvertence of the attorney employed to enter up
the judgments. The plaintiff produced a list of the notes
which he had given to and indorsed for the defendant, and
the latter attended for the purpose of making oath in legal
form to the statements, and he signed and swore to the affi-
davit which was prepared for him, supposing it to be sufficient
in form and substance. Both the plaintiff and defendant, in
opposing the motion, made oath to the existence and validity
of the demands for which the judgments were confessed, and
to the good faith of the proceeding. The supreme court, I
think, should have allowed the plaintiff, on payment of the
costs of the motion, to amend the statements, by placing on
file statements properly verified, and in default of doing so,
the court should have granted the motion: MitcheU v. Van
Buren, 27 N. Y. 300.
The facts set out in the statement in which the judgment
for $1,117.35 was entered are quite sufficient.
The other judgment can be sustained, if at all, only as one
given to secure a contingent liability. It is not sufficient even
in that aspect, and I am unable to uphold it Some of the
notes which the plaintiff had indorsed for the accommodation
of the defendant were overdue, and others of them were run-
ning to maturity. As to those where the day of payment had
passed, there is no allegation that the plaintiiBr had been
charged as indorser. There is, it is true, an allegation that
896 MoBBBLL V. iBYiNa Fire Ins. Co. [New York,
the defendant is indebted to the plaintiff for the amount of all
the notes, and the judgment is confessed for that amount. But
there was, strictly speaking, no indebtedness for either of the
notes, and no pretense for it as to those which had not ma^
tured, though there was a proper occasion for confessing judg-
ment for them as for a contingent liability. But it should be
shown that those overdue had been protested. The plaintiff's
affidavit read on opposing the motion proves that these notes
had been regularly protested, and that he had been charged.
As it was wholly the fault of the attorney that a statement of
that fact was omitted in the. written confession, I think we
should likewise allow an amendment in that respect. The
statement that the indorsed notes had been negotiated by the
defendant was sufficient.
The supreme court was correct in reducing the amount of
the judgment by deducting the aggregate of the notes, whose
amount was not stated, sustaining it for the residue, so (slt as
concerned that omission, notwithstanding the error.
The order appealed from must be reversed, and the record
remitted, with a direction to the supreme court to allow the
plaintiff to amend the statements in the partictilars which
have been mentioned; and that if such amendment be made,
and the costs at general and special term paid, within a time
to be fixed by the court, then the motion to set aside the judg-
ments is to be denied. If such amendment and payment
shall not be made within the time fixed, the judgments are to
be set aside, with costs.
Ordered accordingly.
Cqhibbbion of JuiKnoDiT, IV Madi nrCkwD Fatth, may be annrndftd wlm
Imperfdot^ m against anbaeqnent orediton: Peek t. Miehardion, 9 Hun, 668L
So held where the yerifioatum waa imperfect: Cook r, WTt^ppk, 66 K. Y. 166|
Choky. fTcrfen, 9 Kat. Bank. Beg. 164» all citing the principal
MoBBELL V. Ibving Fibe Insubanoe Gompany.
[8S Nbw Tobk, 429.1
If Iirg0BXR8» AfTEB Loss, Eliot to Rebuhj) PiiEiaBBS, under a proviaicii
m the policy allowing them to do so in lien of paying money damages,
the contract of inanranoe is conTerted into a building oontraot, and tha
amoont insured ceases to be a role of damages in case of a breach; if tha
insorer only partially performs his oontraot to rebuild, the measure ol
damages is the amount which it will take to complete the building, so as ts
make it substantially like the coe destroyed. And where^ in sobh at
Sept. 1865.] MoBBSLL v. Ibvino Fibb Ins. Co. 397
two aepacata insnranoe companies elect to rebuild, in caea of ft lireaoh,
the owner may recorer his foil damages against either of them, leaying
one to seek oontribntion from the other in a separate action.
Vbw Mattkb, CtoJurriTUTmo smB Bhtibb ob Vakhal DmEsn^ xon n
ThEAimD in order to be admisaible in evidence.
Action upon a policy of insurance against loss by fire. The
opinion states the facts,
»
Fitchj for the appellants.
Oilbertj for the respondent.
By Court, Mabvin, J. This is a new case, to which we are
to apply, after ascertaining the contract between the parties,
principles of law well settled.
It is well-settled law in this state that he who undertakes
to build a house for another, or to perform any work, to be
paid for when the house is completed, or the other work done,
cannot recover any portion of the stipulated price or value of
the work, until he has substantially performed the contract
on his part: Smith v. Brady, 17 N. Y. 173 [72 Am. Dec. 442],
and cases therein cited. It is also well-settled law that when
one contracts with another to build for him a house, or do other
work, and agrees to pay portions of the consideration in in-
stallments as the work progresses, and does so pay, or pays the
whole consideration in advance of the performance of the work,
he can maintain no action for money had and received, though
the contract has been broken and remains unperformed, un-
less the contract has been wholly rescinded. His action must
be upon the contract, and his damages must be for the breach
or breaches of the contract. The amount of damages will not
depend upon the amount of money he had paid, but the dam-
ages will be the amount of loss sustained by a failure to per-
form the contract; in other words, what it will cost to procure
a full completion of the contract, including, if the case calls
for it, any special loss by reason of delays, etc.
In the present case, the first of the above principles has
been applied, and the defendant has been placed in the posi-
tion of one who has contracted to construct a building in a
certain manner, and for which he is to be paid after the work
is done, and who claims that he has performed the contract,
and seeks by action to recover the consideration, and is met
with the issue that he had not performed the condition prece-
dent upon the performance of which his right of action de-
pends. This issue being decided against the defendant, it ii
898 MoBBELL f^. Ibyxng Fibe Inb. Co. [New York»
•
held that he is to have nothmg on account of the house actu-
ally built, but is to pay to the plaintiff the entire sum speci-
fied in the policyi as indemnity to the plaintiff for the loss of
his building. I am not satisfied that this rule should be ap-
plied to the case.
It is important to determine, with some precision, what the
case is, — what the contract was between the parties. It is
said that the contract was, on the part of the defendant, that
in consideration of a sum presently paid, it would indemnify
(the contract is 'insure") the plaintiff to the amount of three
thousand dollars, for any loss he should sustain by fire on a
certain building; and the defendant promised and agreed to
make good to the plaintiff, etc., all such loss or damage, not
exceeding in amount the sum insured, as shall happen by fire
to the property specified. But this was not the entire con-
tract. One of its terms and conditions was, that in case of any
loss or damage to the property insured, it should be optional
with the company to build or repair the building, within a
reasonable time, giving notice of their intention to do so within
twenty days after receiving the preliminary proofs of loss.
What construction should be given to this provision? What
relation was established by it between the parties? The agree-
ment is not exactly that the defendant shall do one of two
things, one of which being performed satisfied the contract.
There is no absolute contract that the defendant, upon the
happening of a certain event, should pay a sum of money or
rebuild the house. But the agreement was, that the defend-
ant should pay an amount of money equal to the loss, not ex-
ceeding three thousand dollars. Call it an indemnity for the
losSj and the question will not be changed, for the company
might, within twenty days after proof of the loss, elect or de-
cide to rebuild the building, and give notice of such election
or decision. In other words, the defendant had the right, by
the contract, to elect to rebuild, and in that way indemnify
the plaintiff by rebuilding.
When the election to rebuild was made and notified to the
plaintiff, what was the relation between the parties? The
building had been destroyed by fire. The amount of the loss
may or it may not have been known; there may have been dis-
putes between the parties touching the amount of the loss.
The insured could only claim three thousand dollars, though
the loss may liave been greater; he could only recover his
actual loss as an indemnity, but the actual amount of the loss
Sept. 1865.] MoRBELL 17. Ibvoyg Fibe Ins. Co. 89^
may have been and often is a matter of dispute and difficulty^
requiring a lawsuit to settle it. The insured may claim a
much greater sum than the insurer is willing to pay, and for
the purpose of avoiding the difficulties and litigation likely to
arise from such disputes, the insurer secures by the contract
a right to indemnify the insured by rebuilding the destroyed
building instead of paying money, the amount of which is un*
certain, ai^d the insured agrees to accept indemnity in this
way in lieu of any amount of money. All necessity for asoer*
taining the amount of the loss ceases when the insurer under-
takes the restoration of the property. It seems to me that
when the insurer elects to rebuild, and gives notice of such
election, the contract at once is, that the insurer will rebuild
absolutely, in consideration of the premises, and the defend-
ant's agreement is, that the insurer may do so in satisfaction
of the demand, uncertain in amount, which he claims of the
insurer. This becomes the absolute agreement between the
parties by virtue of the agreement originally made, and which,
prior to the election, was subject to certain contingencies,
terms, and conditions; and it seems to me that after such
election and notice, the relation between the parties is simply
that of a contractor to build, who had received the entire con-
sideration in advance, and a party for whom the building is
to be erected, and who has made full payment therefor in ad-
vance of the work; such, I think, is the fair construction of
the contract.
This provision was intended to obviate difficulties, some of
which have been suggested. In this view, no action could be
maintained for the purpose of recovering the three thousand
dollars, or such portion of it as should be equivalent to the
loss; there can be no inquiry as to the amount of the loss.
The action will be upon the contract to rebuild, and the
amount of the damages to be determined, as in other actions
for the breach of building contracts, and such amount may
exceed the three thousand dollars. The defendant agreed
that it would build the house, and it has been paid for ite
agreement, and must perform the agreement or pay the dam-
ages.
The peculiar language used in this provision has not es-
caped attention. "It shall be optional with the insurance
company to replace and to rebuild," the insurance company
" giving notice of their intention to do so." It may be said
ihat the language is not sufficient to make a present contract
400 MoRBELL V. iBViNa FiRE Ins. Co. [New York|
to rebuild after the election and notice; that although the
defendant had the optional right to rebuild, and elected to re-
build, and gave notice of intention to do so, still it was not
bound to go on and build, but it might stop and leave the in-
sured to his remedy for a moneyed indemnity. This is not, in
my opinion, the fair construction of the provision, nor was
such the intention of the parties to the contract. The option
was with the defendant, and it was to give notice of its election.
The language as to the notice may not have been very happily
chosen in using the word '^ intention " instead of the words
"election," "option," or "choice"; but there can be no diffi-
culty about the meaning. The right to rebuild, and the obli-
gation to rebuild, depended upon an election to rebuild, and
the notice was simply to inform the other party that such
election had been made. The parties so understood the lan-
guage.
The notice actually given in this case said nothing about
intention. Its language is: "We hereby give you notice that
we are prepared to rebuild said building"; and this was treated
as sufficient, and both parties acted upon it. It seems to me
very clear that after the election and notice there existed a
contract between the parties for rebuilding of the building
destroyed, and the contract to make good in money the loss
no longer existed between the parties. If I am right in the
view taken of the contract, the position that the contract for
indemnity in money remained in force until the house was
actually rebuilt must fail. This position would seem to re-
gard the provision as an accord, not valid as a satisfaction
until executed; whereas I regard it as a part of the original
agreement by which this provision might, upon the happening
of a certain contingency, be substituted by the election of one
of the parties for and in the place of the provision to indemnify
in money, and it is the agreement of both parties, and both
are bound by it. It is, I submit, an error to suppose that this
was a conditional agreement, by which, when performed, the
previous agreement to pay in money was satisfied, and if not
performed, then such money agreement remained in force. I
have read carefully the dissenting opinion of Justice Emott in
the court below; and though I am not able to concur fully in
his construction of the contract, I have no difficulty in adopt-
ing his argument against the rule of damages enunciated at
Ihe circuit.
Assuming that the agreement to indemnify in money was
Sept. 1865.] MoRRELL v. Iryinq Firb Ins. Co. 401
not entirelj saperseded by the agreement to rebuild, what
would the rights of the parties be upon a failure or partial
failure to rebuild? The defendant had the right to satisfy the
claim for the loss by rebuilding. Suppose the loss to have
been three thousand dollars, and the insurer expends two thou-
sand dollars judiciously and profitably towards the rebuilding
of the house, and then stops, and the insured takes up the
work, and completes the house by expending one thousand dol*
lars. Has not this claim for damages been partially satisfied?
I certainly think so; and this is the position of Justice Emott.
He applies to the case the same principles applicable to an
action against a contractor for a breach of the contract to
build, and refuses to apply the strict rule against a contractor
who seeks to recover the price, and is met with the objection
that the work has not been completed according to the con-
tract.
But the learned justice limits the recovery to a sum not ex-
ceeding the amount that would have produced indemnity had
the agreement to rebuild never existed; and in this we differ.
It seems to me that this rule will be very difficult in practice.
The indemnity in money can never exceed the amount of the
risk specified in the policy. Suppose the risk taken to be
three thousand dollars, and the insurer elects to rebuild, and
actually expends, necessarily and properly, three thousand
dollars, and the building is not completed, — may he stop and
leave the building to be completed by the insured at say the
cost of an additional one thousand dollars? This must be so
if the insured, in such case, is only entitled to an indemnity
measured by the sum of money specified in the policy; for
the three thousand dollars, having been judiciously expended,
is worth so much to him. The learned justice, however, lays
down the rule that the plaintiff is entitled to recover such an
amount, not exceeding the amount of the insurance, as will
be necessary to make the building erected equal in all respects
and similar to the one burned. The result of this rule would
be, in the case above supposed, that the plaintiff could recover
the additional one thousand dollars expended by him, though
the defendant had expended already the full amount insured,
and this is precisely what I claim. But suppose the insurer
expends one thousand dollars, and it costs three thousand dol-
lars to complete the building, the insured, by the rule laid
down, will recover three thousand dollars. Will he not, in
«wh a case, realize for indemnity four thousand dollars? Cer<
AM. Dec. Vol. LXXXVm-26
402 MoBSBLL V. iBvma Fibb Ins. Co. [New York,
tainly he will. Or 8api)ose the insurer expends two thousand
dollars, and the insured three thousand dollars, to complete
the building, the latter will recover the three thousand doUarSi
and thus realize five thousand dollars. He is to recover suck
an amount as will be necessary to complete the building, not^
however, exceeding the amount of the insurance. Under
such a rule, an insurer who has elected to rebuild, and has
performed part of the work, and discovers that he has a hard
bargain, and cannot complete the work for the amount of tha
insurance, will at once abandon the work, or he may do ao^
being liable only for the payment of the amount insured.
Under such a rule, the amount of the loss will always come
up for litigation and adjustment; and, as I understand, tha
principal object of the provision we are considering is to per-
mit the insurer to obviate all disputes and litigation touchiug
the amount of the loss by replacing the articles lost or dam*
aged, or by repairing or rebuilding the building destroyed; by
adopting the construction for which I contend, we have a sim-
ple rule, which excludes any inquiry as to the amount of tha
loss, and the inquiry will be, Has the insured replaced tha
article or rebuilt the building in the manner agreed? and if
not, the damages will be as in other cases of the breach by
the builder of his agreement to build.
It is supposed that, in a case like the present, difficulties
exist touching the parties in the action. I think that the sup-
posed difficulties will disappear upon a brief examination of
the law applicable to such cases. The plaintiff held two polir
cies upon the same building, one issued by the defendant^
taking a risk of three thousand dollars, the other issued by
the Excelsior Fire Insurance Company, taking a risk of two
thousand dollars. Each policy contained the same provisions
or condition touching the optional right to rebuild. In thii
case, both the companies elected to rebuild, and they united in
one notice that they were prepared to rebuild. The case does
not contain, as it should, the policies; but they were, of course,
both valid, and in contemplation of law constituted one policy
so far as the amount of loss was concerned; that is to say, the
insured could not recover the amount of his loss of each ia-
surer, supposing it had been less than the smallest risk; ail
he is entitled to from all the insurers is one indemnity. If be
recovers this of one of the insurers, such insurer may recover
of the other, by way of contribution, his proper proportion.
It is very common in this country to provide, in fire poIicieSi
Sept. 1865.] MoBBELL v, Irving Fibe Ins. Co. 403
ihat in case of two or more insurances upon the same prop-
erty, each insurer shall be liable only for a ratable proi)ortlon
of the loss: See Parsons's Mercantile Law, 516, 517.
Whether it was provided in the present case that each com-
pany should only be liable for its ratable proportion of the
loss does not appear, but I think this will be seen not to be
material. Though the plaintiff could not have maintained a
joint action against the companies upon these policies, if there
had been no election to rebuild, but could have maintained
separate actions, recovering from the defendant three fifths of
the loss, not exceeding three thousand dollars, and from the
other company two fifths, not exceeding two thousand dollars,
it does not follow that upon an election by both companies to
rebuild, he could not maintain a joint action against both upon
the agreement to rebuild. I think he could maintain such
action, and that the action in this case should properly have
been against both companies. When they jointly elected to
rebuild, they jointly agreed to rebuild, and were jointly liable in
an action for a breach of their agreement. I have no doubt the
action would have been well brought against both companies.
They would not be permitted to allege that they had not jointly
contracted with the plaintiff. I am not prepared to say that
the action was not well brought against the defendant alone.
I think the plaintiff might well treat the election to rebuild as
the election of each insurer, and for a breach of the building
agreement maintain his action against either company, and
recover full damages, or perhaps a separate action against
each for full damages, collecting the damages, however, but
once.
I think these positions follow from the legal relations and
rights of all the parties. The two companies were bound to
pay the loss ratably, if so stipulated in the policies, and if not
so stipulated, the whole loss should be paid by one; then the
other would be liable for contribution. When one of the com-
panies should elect to rebuild, it would come under obligation
to the insured to make full indemnity by rebuilding; and if
there were a provision in the policy that it should only be
liable to pay a ratable proportion of the loss, such provision
would be superseded by the agreement to rebuild. If only one
of the insurers should elect to rebuild, and should perform the
building contract, it would be entitled to contribution from
the other company, not a proportion of the amount expended
in building, bat a ratable proportion in money of the actual
404 MoBBBLL V. iBViNa FiBE In8. Co. [New York,
loss. So, also, if the partj undertaking to rebuild should fail
to perform the contract, and the insured should recover and
collect damages for the breach of the agreement, such party
could recover of the other insurer a ratable proi)ortion of the
loss. Such insurer would, by the payment of the damages
recovered by the insured, have satisfied the demand for the
loss. The insured would be fully indemnified, and the insurer,
who paid nothing and did nothing^ would be liable for contribu-
tion. In my opinion, the insured, in a case like the present,
may have his action against both insurers jointly, or against
either separately, aud recover his full damages for the breach
of the building contract, and leave the two insurers to an
adjustment of their rights between themselves, according to
well-settled rules of law applicable to difierent insurers of the
same property.
The judgment should be reversed, and there should be a new
trial.
Denio, J., in a concnrring opimon, said that if, under such a policy aa ia
■tated in the principal opinion of the courts the inaarer should elect to re-
build, the contract would no longer be one of insurance, but would be con-
verted into a building contract; and the measure of damages would no longer
be the sam named in the policy, but would be the amount which would be
necessary to complete the building so aa to make it substantially like the one
destroyed, citing 8mUh y. Brady, 17 N. Y. 173; S. 0., 72 Am. Dec. 442;
Champlin v. Rowley, 18 Wend. 187. The f^t that two companies elect so to
build, in case of a breach, does not involve the necessity of bringing a joint
action against both; but either may be sued, and the one held liable may sue
the other for contribution.
SxLBEN and Emott, JJ., dissented.
After a second trial, the case again came before the court of appeal^ when
the opinion of the court was rendered by Da vies, J., who, after reciting the
facts, and the points decided on the first hearing, said, in response to the
point urged, that in a case where two companies elect to rebuild, they should
be sued jointly for a breach; that the action might properly be maintained
against one company, leaving it to obtain relief by an action for contribution
against the other company. The rule of damage for breach of the contract
to rebuild, in furnishing a different kind of or an incoxnplete building, was
said to be the difference between the value of the first building when it was
burned and the value of the building erected by the company.
New matter, as, for instance, a judgment, constituting either an entira or
partial defense, must be pleaded in order to be admissible in evidence, citing
McKyring v. Bull, 16 N. Y. 297.
Dayde8» J., questioned, but did not determine, the right of the court of
appeals to review an order of the lower court refusing leave to file a supple-
mental answer.
CAxasELLf J., filed a oonaarring opnion, holding in sabatanoe the same aa
the ether judgBa whose opiaioBB ace reported on the questtiona of the effect
Sept 1865.] HuLBTT v. Swivr. 406
of eketion to rebuild and the aiearare a£ ^*i'"*gr' lor bieaeh ol oontnd to
do BO.
Wbjebb IK8UBXB, AiTXB L088, Elbois, unbsb Bouot, TO Rmbitxld in
preference to paying money damages, the contraot is conTorted into a build-
ing contnct^ and ihm amooni inwirad eoneei to be the muaeiue of damage:
BealB ▼. Home Im. C0., 86 N. T. fi26; Bmlnum ▼. WedekeMerF. Im, C^ 76 Id.
10; KiddY. JHeOormkk.'BQ Id. 396, 997, citing the
HuLETT V. Swept.
rss Nbw ToaK,07L|
JXJXEMEFEB. IB IMBUBEB OF G0OS8 OOMiaTTKD TO HK CDBIOXfT BT OVBBt,
nnleea the loot be dne to culpable n<^g1igen«e or iraad o£ tha gaumt, or to
the act of God or of the pablic enemj.
ImiKBEPEB 13 LiABLB lOB Loss OF GooDB OF GuBBT whlch are deatroyed
by fire, the origin of which is nnknown, the guest being free from negli-
gence.
Action against the executor of Isaac Balding, deceased, to
recover the value of certain property, consisting of merchan-
dise, a horse and wagon and harness, which had been placed
in the decedent*B care, while an innkeeper in Poughkeepsie,
by plaintiff's servant, who was then a guest at the decedent's
inn, the property having been destroyed by fire while so in
the decedent's custody. Judgment for plaintiff. Defidndant
appealed.
Thompson^ for the appellant
Wells and Dudley^ for the respondents.
By Court, Porter, J. An innkeeper is responsible for the
safe-keeping of property committed to his custody by a guest.
He is an insurer against loss, unless caused by the negligence
or fraud of the guest, or by the act of Gkxl or the public enemy.
This liability is recognized in the common law as existing by
the ancient custom of the realm; and the judges in Calye^a
Case, 8 Coke, 32, treated the recitals in the special writ for its
enforcement as controlling evidence of the nature and extent
of the obligation imposed by law on the innkeeper: 1 Smith's
Lead. Cas., Hare and Wallace's ed., 194, 807.
This custom, like that in the kindred case of the common
carrier, had its origin in considerations of public policy. It
was essential to the interests of the realm that every facility
should be furnished for secure and convenient intercourse be-
tween different portions of the kingdom. The safeguards, of
406 HuLETT 9. Swift. [New York«
which the law gave assurance to the wayfarer, were akin to
those which invested each English home with tiie legal secu-
rity of a castle. The traveler was peculiarly exposed to dep-
redation and fraud; he was compelled to repose confidence in
a host who was subject to constant temptation, and favored
with peculiar opportunities if he chose to betray his. trust.
The innkeeper was at liberty to fix his own compensation and
enforce summary payment; his lien then, as now, fastened
ui)on the goods of his guest from the time they came to his
custody. The care of the property was usually committed to
servants, over whom the guest had no control, and who had
no interest in its preservation unless their employer was held
responsible for its safety. In case of depredation by collusion,
or of injury or destruction by neglect, the stranger would of
necessity be at every possible disadvantage; he would be with-
out the means either of proving guilt or detecting it. The wit-
nesses to whom he must resort for information, if not accessaries
to the injury, would ordinarily be in the interest of the inn-
keeper. The sufierer would be deprived, by the very wrong of
which he complained, of the means of remaining to ascertain
and enforce his rights, and redress would be wellnigh hope-
less but for the rule of law casting the loss on the party in-
trusted with the custody of the property, and paid for keeping
it safely.
The considerations of public policy in which the rule had its
origin forbid any relaxation of its rigor. The number of trav-
elers was few when this custom was established for their pro-
tection. The growth of commerce and increased facilities of
communication have so multiplied the class for whose security
it was designed that its abrogation would be the removal of a
safeguard against fraud, in which almost every citizen has an
immediate interest. The rule is in the highest degree reme-
dial. No public interest would be promoted by changing the
legal effect of the implied contract between the host and the
guest, and relieving the former from his common-law liability.
Innkeepers, like carriers and other insurers, at times find their
contracts burdensome; but in the profits they derive from the
public, and the privileges accorded to them by the law, they
find an ample and liberal compensation. The vocation would
be still more profitable if coupled with new immunities; but
we are not at liberty to discard the settled rules of the com-
mon law, founded on reasons which still operate in all their
original force. Open robbery and violence, it is true, are less
Bept. 1865.] HuLKTT v. Swift. 407
frequent as civilization advances; but the devices of fraud
■iQltiply with the increase of intelligence, and the temptations
which spring from opportunity keep pace with the growth and
iifiusion of wealth. The great body of those engaged in this,
«8 in other vocations, are men of character and worth; but the
calling is open to all, and the existing rule of protection should
therefore be steadily maintained. It extends to every case,
snd secures the highest vigilance on the part of the innkeeper
hy making him responsible for the property of his guest. The
traveler is entitled to claim entire security for his goods as
against the landlord, who fixes his own measure of compensa-
tioD, and holds the property in pledge for the payment of his
diarges against the owner.
In cases of loss, either the innkeeper or the guest must be the
nfferer; and the common law furnishes the solution of the
question on which of them it should properly fall. In the case
cf Cro88 V. Andrews, Cro. Eliz. 622, the rule was tersely stated
hy the court: ^'The defendant, if he will keep an inn, ought,
at his peril, to keep safely his guests' goods." He must guard
ihem against the incendiary, the burglar, and the thief; and
ke is equally bound to respond for their loss, whether caused
liy his own negligence, or by the depredations of knaves and
aaarauders, within or without the curtilage.
This doctrine is too well settled in the English courts to be
iibaken by the exceptional case on which the appellant relies:
Calye^a Case, 8 Coke, 32; Cross v. Andrews, Cro. Eliz. 622;
Richmond v. Smith, 8 Barn. & C. 808; CashiU v. Wright, 6 EL
A B. 891. In the courts of this state, it has always been held
that the innkeeper, like the carrier, is, by the common law, an
insurer: Purvis v. Colem^an, 21 N. Y. Ill, 112, 117; Wells v.
Steam Navigation Co,, 2 Id. 204, 209; Gile v. Libby, 36 Barb.
70, 74; Ingallsbee v. Wood, 36 Id. 458; Washburn v. Jones, 14
Id. 193, 195; McDonald v. EdgeHon, 5 Id. 664; Taylor v. Monr
wot, 4 Duer, 117; Stanton v. Leland, 4 E. D. Smith, 94; Chrir^
«€» V. Cook, 3 HiU (N. Y.), 488 [38 Am. Dec. 663]; Piper v.
Manny, 21 Wend. 282, 284; CluU v. Wiggins, 14 Johns. 175
|7 Am. Dec. 448]. The rule, as recognized by us, is sanc-
liffiied by the leading authorities in the other states: 1 Par-
sons on Contracts, 623; 1 Smith's Lead. Cas., Hare and
Wallace's ed., 307; Shaw v. Berry, 31 Me. 478 [52 Am. Dec.
•28]; SibUy v. Aldrich, 33 N. H. 653 [66 Am. Dec. 745]; Berk-
Aire Woollen Co. v. Proctor, 7 Cush. 427; Mason v. Thompson, 9
Pick. 280 [20 Am. Dec. 471]; Towsm v. Havre de Grace Bank^ 6
408 HuLBTT V. Swift. [New York,
Ear. & J. 47 [14 Am. Deo. 254]; Thiekaton v. Howard, 8 Blackfl
685, 537; KisUn v. HOdebrand, 9 B. Mon. 72 [48 Am. Dec. 416].
A Bhade of doubt has at times been thrown over the ques-
tion by the unguarded language of elementary writers, and
especially by the suggestion of Judge Story in his treatise on
the law of bailments that the innkeeper could exonerate him-
self &om liability by proving that he was not guilty of actual
negligence; and this view seems to have been adopted in two
of the Vermont and one of the English cases: Story on Bail-
ments, sec. 472; Dawson v. Champney, 8 Ad. & E., N. S., 164;
Merrit v. Claghomj 23 Vt. 177; McDanieU v. Robinson^ 28 Id.
337 [67 Am. Dec. 720]. The doctrine of these cases is opposed
to the general current of English and American authority, and
evidently had its origin in a misapprehension of the rule as
stated by the judges in Calye'a Case, 8 Coke, 32. It is true
that the liability of the innkeeper, by the custom of the realm,
was not unlimited and absolute, and that the loss of the goods
of the guest was merely presumptive evidence of the de&ult
of the landlord. But this presumption could only be repelled
by proof that the loss was attributable to the negligence or
fraud of the guest, or to the act of God or the public enemy.
No degree of diligence or vigilance on the part of the innkeeper
could absolve him from his common-law obligation for the loss
of his guest, unless traceable to one of these exceptional causes:
Shaw V. Berry, 31 Me. 478 [52 Am. Dec. 628]; Sibley v. AU
drich, 33 N. H. 563 [66 Am. Dec. 745]. The rule is salutary,
and should be steadily and firmly upheld, subject to the statu-
tory regulations for the protection of hotel proprietors from
fraud and negligence on the part of their guests.
We are of opinion that the judgment should be a£Srmed on
the ground that the testator was an insurer of the property
committed to his charge, and that its loss has not been traced
to either of the causes recognized as creating an exception to
the general rule of liability.
It is proper to remark that if the law were otherwise, and
the innkeeper were responsible only for actual negligence, it
would not avail the defendant on the appeal papers in the
present case as they come to us from the court below. The
findings of the referee are not embodied in the case, as re-
quired by the existing practice; and on reference to the record
prefixed to the case, it appears that the defendant failed to
repel by proof the conceded presumption of negligence: Bmell
Bept 1865.] Inqallsbbb v. Wood. 409
y. Hamlin^ 20 N. Y. 519; Grant v. Moreej 22 Id. 828. The
jadgxnent should be affirmed^ with costs.
Judgment affirmed.
Denio, C. J., and Bbown, J., dissented.
JjABiUTT ofF Inkksxpkbs GsirxKAXXT: See the note to PeUtgrew t. Bar-
mon^ 09 Am. Deo. 212; and see Carter t. JSbUi, 83 Id. 783, and note. To
tike point that bmkeepen are liable for safety of goods of goeets, ezoept
where loss is caused by the culpable negligence of the guest, or by his fraud,
or by the act of (}od or the public enemy, see the principal case cited in
Srnkh T. Read, 6 Daly, 35; S. 0., 62 How. Pr. 17; Croder ▼. BotUm A N. 7.
S 8. Sib. Co., 43 Id. 468; Bamaley ▼. UUuid, 43 N. T. 641; WUkmt ▼. Eairlt,
44 Id. 178; Movotn ▼. FetherB^ 6 Lans. 114; S. C, 61 N. T. 38; Clauen ▼.
Leopoidy 2 Sweeny, 710. This liability extends only to such property as is
received in the capacity of innkeeper: Pinherton v. Woodward, 33 CaL 600^
602, 607, citing the principal case. By the act «f 1866 in New York, this
liability was limited so that innkeepers should not thereafter be liable for
losses by fire not reenlting from the n^gligenoe of the innkeeper: FaueeU t.
MMaa, 64 N. Y. 380. In OnOer ▼. Binmeif, 30 Mich. 263, the authority of
iha principal case on the point that innkeepers are liable for loss by fire not
resulting from their own negligenoe is denied.
Ingallsbbb V. Wood.
[88 Niw YoBK, 077.J
BaZBXPJER IS BPPOHaiBLB AS iNSimSB ONLY lOB SUCB P&OPXBTT as hs
reoeiree from one between whom and himself there ensts the relation
of innkeeper and guest.
iMJUUUfJUt IB HOT BSBVONSIBUB XZCOSPT AS OkDWAST BaILBB lOB HXBS
for the safe-keeping of a horse left in his stable for the night by one
who is neither a lodger nor a guest, the stable haying been consumed hj
fire without ne^^gence on his part.
Action against an innkeeper for the value of a horse, har-
ness, and robes, placed with him for safe-keeping by one who
was not otherwise a guest, said property being destroyed by
the burning during the night of the barn where the property
had been placed, no negligence of the innkeeper being shown.
Thcmpaonj for the appellant.
Oibaany for the respondent.
By Court, Pobtbb, J. As there was no negligence on the
part of the intestate, he was not liable for the loss, unless he
was an insurer of the property. There was no express con-
tract of insurance, and none can be implied, unless it sprung
from the relation of innkeeper and guest. No such relation
'410 Irgallbbbb V, Wood. [New York,
existed between the parties. The horse was left at the stable
by one who was not, and did not expect to be, a guest at the
inn. There was no contract, either express or implied, except
lor the keeping of the animal for the night; and this created
no other or greater liability than if the intestate, instead of
being an innkeeper, had been the proprietor of a livery-stable.
The livery-man, like the agister, has no lien on the property
<x>mmitted to his charge: ChirmeU v. Cook^ 3 Hill, 486, 492
£38 Am. Dec. 663]; Fox v. McGregor^ 11 Barb. 41; Wallace v.
Woodgate, 1 Car. & P. 675; Jackson v. Cummins^ 5 Mees. &
W. 342.
The liability of the innkeeper as an insurer presupposes
the relation of host and guest. It had its origin in an ancient
<:u8tom of the realn^ which fixed the correlative rights and
obligations of the parties, by securing to the traveler a spe-
cial remedy for his goods, and to the host a specific lien for
liis charges. These were peculiar and mutual rights, acces-
sory to the particular relation. But an innkeeper is not re*
stricted to the special business of his calling, and he is free
to contract with those who do not care to become his guests.
When he receives property from one who is neither a guest
-nor a traveler, the custom of the realm has no application.
The property is subject to no lien, and protected by no insur-
ance; his obligation is simply that of an ordinary bailee for
liire: Binns v. Pigotty 9 Car. & P. 208; GrinneU v. Cook, 3 Hill,
485 [38 Am. Dec. 663]; Hickman v. ThonuUj 16 Ala. 666;
Thickston v. Howard^ 8 Blackf. 535; TWson v. Havre de Orace
Bank, 6 Har. & J. 47 [14 Am. Dec. 254].
The theory of the appellant that one who contracts for the
stabling of his horse by an innkeeper is constructively an
inmate of his house, is supported by a case reported in Massa-
chusetts, but we think that decision was made under a mis-
apprchension of the law: Mason v. Thompsonj 9 Pick. 280 [20
Am. Dec. 471]. Its correctness has since been questioned by
the court in which it was pronounced: Berkshire Woollen Co. v.
Proctor J 7 Cush. 425, 426. The authorities on which it rests
for support were fully considered in the able opinions delivered
by Judge Bronson in the case of OrinneU v. Cook, supra^ and
t)y Judges Potter and Bockes in the present case in the court
below, and we think their reasoning conclusive against the
doctrine that an innkeeper can be held as an insurer of
property received from one who is neither traveler nor guest.
The judgment should be affirmed, with costs.
Sept. 1885.] Ihoallsbeb v. Wood. 411
Davis, J. No queBtion was submitted to the jury in this
case, except as to the value of the property, which was as-
sessed by them at $125. All other questions were reserved
for consideration by the court, with consent of counsel. The
court made no special finding of facts, but after hearing coun-
sel, directed judgment to be entered for the defendant; the
correctness of this practice is not now in question. There
was no conflict in the testimony as to the material facts, and
this court is to regard them as having been found as favor-
ably to the defendant as the evidence would have permitted*
The defendant's intestate was an innkeeper at Hartford,
Washington County. The plaintiff's assignor was a farmer,
residing a few miles from that village. He drove into the
village on a Sunday morning, for the purpose of attending
church, and hitched his horse under the innkeeper's shed;
after church he went to his mother-in-law's, who lived in the
same village, where his wife was then remaining, and became
her guest for the night. He afterwards went to the inn, and
gave directions to put his horse into the stable for the night,
which was done. On the following morning, the stable of the
inn was destroyed by fire, without fault of the innkeeper or
his servants, and with it the property for which this action
was brought was lost. Upon these facts, the court held that
the plaintiff's assignor was not a guest of the inn of defend-
ant's intestate, and for that reason gave judgment for de-
fendant. The general term of the fourth district affirmed
the judgment.
The decision was correct. The person who left the property
in the innkeeper's care for the night never became a guest of
the inn, either actually or constructively. The authorities all
agree that this relation must exist before the extraordinary
liability of the innkeeper arises; the only difference between
them is as to the state of facts necessary to create the relation.
The question was very fully discussed in the late supreme
court, in the case of Orinneli v. Cook, 3 Hill, 485 [38 Am. Dec.
663], where the authorities are commented upon at length by
Justice Bronson; and although the facts of that case were
different in some respects from those of the present case, yet
the rule there laid down is the controlling one in this state,
to wit, that one who has neither been at an inn as a guest, nor
intends going there in that relation, cannot be regarded as a
guest, although he sends goods there to be taken care of by the
innkeeper.
412 Hadlbt 9. Cmr of Albany. [New York^
The question was very jEully considered in the court below,
in the admirable opinion of Mr. Justice Potter, in which I
fully concnr. I am for affirmance of the judgment.
Judgment affirmed.
LiABiuTT OF Inuksipibs Ginsrallt: See the preceding case of BMhU ▼.
8w^ ante, p. 405, and the cases cited in the note. As to who are gaesta at
aninn^seethenotetoifcDaiiietv. i?o&»fuon»64AnLDeo.S86; and on the point
that innkeepers are liable only for goods and baggage of ''gnests^" see PetH"
frew ▼. AinMifii, 69 Id. 212; and note; and see the piinoipal ease eited to the
tame e£feot in Jliowen t. FeOen^ 61 N. T. 88; Bmeock t. Amd; 17 Hnn, 288.
Hadlby V. City op Albany,
[88 Nbw York, e08.J
COMMOK COUNGIL OF CiTT HAYIHO OnOB LbOALLT OANVmXD RBTUBirS OF
Elsotion tob Matob have exhausted their power, and oannot snbse-
qaently, after a reorganization, recanvass the retoms, and reverse th*
former determination.
Bmscr of Bbtubn s or Elboiion fob Matob bt Boabd CoimiTUTBO bt
Law to canrass them and determine the resolt is condnsiTe as deter-
mined i>y such board, and is not open for consideration in a collateral
proceeding in which the title of the mayor is in question.
Suit to recover salary as a policeman. The defense was
that plaintiff had been removed from office by J. V. P. Quack-
enbush, mayor of the city, and the members of the board au-
thorized to remove policemen. The question on the trial was^
whether Quackenbush was legally the mayor. The remain*
ing facts appear in the opinion.
Handj for the appellants.
Hadley, for the respondent.
By Court, Dbnio, C. J. There being no concluaioDS of frd
found by the judge, the only questions which are open for ex*
amination upon this appeal are those which arise upon the
exceptions to rulings taken in the course of the trial.
The election for mayor and other officers in 1856 was held
on the day appointed by law, the second Tuesday (eighth day)
of April, and the terms of the newly chosen officers commenced
on the first Tuesday of May thereafter: Laws of 1855, c. 198,
sees. 1-3. The law requires the inspectors of election to file a
statement and certificate setting forth the number of votes
given for each person for each respective office with Ihe clerk
of the common council within twenty-four hours after the com-
Sept. 1865.] Hadlbt v. City or Albany. 418
pletion of the canvags, and that '^ the oommon oonncil, at its
meeting thereafter, shall canvass such returns, and determine
and declare the result": Id., c. 86, ieo. 11. The officers chosen
are, on or before tiie time when their terms commence, to take
the oath of office prescribed by law: Id., sec. 12.
The plaintiff had given in evidence a certificate of the deter-
mination of the common council at a meeting held on the 15th
of April, one week after the election. This was at least prima
facie evidence of the act of the common council. The docu-
ment was given in evidence without objection, and it was not
attempted to controvert the fact that the proceedings of the
council set forth in it had taken place as stated. But the de-
fendants offered to prove another canvass before the common
council at a meeting on the 6th of May following. It is not
stated in the offer, nor mentioned in the case, that the new
canvass resulted in electing Mr. Quackenbush, but such, I
suppose, was the intention of the offer. The evidence was ex-
cluded, and this is the point of the first exception. The act
does not prescribe that the canvass shall be made at the first
meeting of the council after election, a word having apparently
dropped out in transcribing or printing the section. The
meaning as it stands in the statute-book is, that the canvass
shall be made at some meeting of the common council after
the election. It was regular and legal to perform that duty
at the first meeting, and this was what was done, as stated in
the certificate. Having been once legally performed, the power
of the council was exhausted; the board had no right to re-
verse its decision by making a different determination. The
court was therefore right in rejecting the evidence which was
offered.
The second exception was to the decision by which the court
excluded the inspectors' returns. The object, I suppose, was
to show that the returns elected Mr. Quackenbush, and not
Mr. Perry. But the law having committed to the common
council the duty of canvassing the returns, and determining
he result of the election from them, and the council having
^rformed that duty, and made a determination, the question
as to the effect of the returns was not open for a determination
by a jury in an action in which the title of the officer came up
collaterally. If the question had arisen upon an action in the
nature of a quo warranto information, the evidence would have
been competent. But it would be intolerable to allow a party
affected by the acts of a person claiming to be an officer to go
414 Hadlxt v. Crrr of Albany. [New York,
behind the official determination to prove that each official
determination arose oat of a mistake or fraud.
It follows that the remaining exception was not well taken.
The court excluded the determination to remove Conlon, made
at a meeting consisting of Mr. Quackenbush, acting for that
purpose as mayor, and the recorder, and an alderman. The
mayor is an essential member of the council provided for
hearing charges against a i)oliceman, unless he be absent, in
which case the chief of police is to take his place. Mr.
Quackenbush was not the mayor, and oonsequenUy no legal
body for hearing these charges was assembled. The act of
removing Conlon was consequently void, and he was not re-
moved. The papers which were offered were properly rejected.
It seems probable that the action might have been success*
fully defended on the ground that Conlon had failed to per-
form the duties of his office, and had acquiesced in the
irregular order for dismissal which had been made. It
seems he admitted himself to be guilty of the charges
brought against him, and there is an inference that he re-
tired from the police arising out of the want of any proof or
allegation of a subsequent performance of duty as a poUc^
man; but there is no finding of facts to raise that qnestion.
The defendants' counsel seem to have chosen to place their
defense upon the allegation of title in Mr. Quackenbush to
the office of mayor, and they raised no question except that
which related to the evidence of his election and the validity
of hie acts. Having failed to sustain their position on these
questions, they cannot ask to have the judgment against them
reversed.
Bbown,* J. James Conlon, the plaintiff's assignor, was one
of the policemen of the city of Albany, duly appointed, on
the 9th of April, 1856, to serve for the term of two years
from the 20th of May thereafter, and until his successor
should be api)ointed, or he was removed for cause. The ex«
ception to the proceedings at the circuit was one taken to the
rejection of the defendants' evidence, and it presents the prin-
cipal question ui)on which the plaintiff's right to maintain the
action depends. By the eleventh section of the act of the
4th of April, 1851, the inspectors at an election for municipal
officers in the city of Albany shall certify and declare the re-
sult of the canvass of the votes, and file such certificate and
statement in the office of the clerk of the common council
Sept 1865.] Hablxt v. City of Albany. 415*
within twenty-four hours after the completion of the canvass^
and the common council, at its meeting thereafter, shall can-
yass the returns and declare the result. There was an election,
for mayor and other officers in the city, on the eighth day of
April, 1856, and for the purpose of showing who was duly
elected mayor, the plaintiff produced and proved the certifi*^
cate of the members of the common council, dated the 15tb.
of April, 1856, declaring that Eli Perry, having received tho
greatest number of votes, was duly elected. This certificate
was in due form, and was produced from the files of the clerk
of the common council. It was then proved that Eli Perry
qualified and entered upon the duties of his office as mayor.
Policemen are removable from office, for cause shown, by
the mayor, and in his absence the chief of police, and the
recorder, and one alderman, who are to examine the charges^
hear evidence, etc., upon both sides, and acquit, remove, ot
suspend in their discretion. The'defense was, that Conlon had
been removed from his office for drunkenness and misconduct
after a trial had before the mayor, recorder, and Alderman
Benson, on the 6th of November, 1856, at which Conlon ap-
peared, and was heard in his defense. To lay the foundations
for this defense, the defendants offered evidence to show that
on the 6th of May, some time after Eli Perry was declared
duly elected, the common council of the city made another
canvass of the votes, and filed another certificate, in which it
was declared that John V. P. Quackenbush was duly elected
mayor, etc. This evidence was upon objection rejected, and
the defendants excepted. An offer was then made to read in
evidence the returns of the canvassers and inspectors for the
election on the 8th of April, 1856, for the purpose of showing
that John V. P. Quackenbush had the greatest number of
votes for the office of mayor at the election. This evidence
was also rejected, upon objection, and the defendants again^
excepted.
The defendants' counsel next offered in evidence the return >
of a trial of Conlon, upon the charge of drunkenness and mis-
conduct, by John V. P. Quackenbush, acting as mayor, Recor^
der Paddock, and one of the aldermen of the city, Conlon'a
plea of guilty, and his dismissal from office by such city officers.
This evidence was objected to and rejected, and the defendante-
excepted. The legality of the trial of Conlon, and the judg-
ment of dismissal said to have been rendered against him, de-
pended upon the question who was the mayor of the city at the-
416 Johnson v. Transportation Co. [New Yorki
time, and the effort of the defendants was to show that Quack-
enbush was the mayor at the time of the alleged trial, and the
defendants claimed that notwithstanding Perry had obtained
the canvassers' certificate, Quackenbush really had the most
votes, and was entitled to the office. The judge decided that
Mayor Perry's title to the office could not be the subject of
investigation and inquiry in this action, and on that account
rejected the evidence. This was entirely right. EU Perry
had the certificate of the canvassers, — the authority appointed
by law to examine the inspectors' returns, and determine who
had the most votes and the right to the office; he was there-
fore the mayor de factOy and notwithstanding John V. P.
Quackenbush might have received the greatest number of the
votes, and be rightfully entitled to the office, yet, wanting the
certificate, he was not, for the purposes of the trial and dis-
missal of Conlon, the mayor of the city, and the proceeding
upon which the defendant relied to show that Conlon was not
a policeman at the time the service for which he claimed
compensation was rendered was coram nonjudice and void.
The judgment should be affirmed.
Judgment affirmed.
Thb principal cask is oitid in Mc Vtany t. Mayor, 80 N. Y. 191, the
oonrt there saying that an action by an officer for his salary, where he daims
to have been wrongfoUy removed, might perhaps be snccessfaUy defended,
on the ground that the officer failed to perform the duties of the office and
had acquiesced in the irregular dismiswal. In Supervuors v. 0*MaUy, 46 Wis.
59, it is cited to the point that an officer with a certificate of election may,
notwithstanding a contest of his election, assume and hold the office until
there is a judicial determination that he is not entitled to the office.
Johnson t;. New Tobk Central Tbanspobtation
Company.
\U Kbw Tobk, CliO.J
OoMvov Oabbub Uii DSBTAKma to Forwakd Qoodb bitokd TsBioinm of
HIS Own RouTB is bound to obey the instructiona of the shipper, and if
he disregard them, and the goods are lost, he is liable for their Talne;
such disregard of instructions being at his own risk.
AonoN against railroad company as common carrier. The
opinion states the fieu^ts.
Jb&iwon, for the appellants.
FaircMldy for the respondents.
Sept. 1865.] Johnson t;. Transportation Co. 417
By Court, Porter, J. The defendant undertook to trans*
port the flax to Albany^ and to forward it thence to New York
by the People's Line of steamboats. On the refusal of that
line to receiye it, the defendant's obligation as a carrier ceased;
and if it incurred any further liability, it was in the character
of agent for the owner of the property. In the absence of in-
structions as to the mode of transportation from Albany, it
owed no duty to the plaintiff, beyond the delivery of the prop-
erty, in the usual course of business, to safe and responsible
carriers for transmission to its destination: Broton v. Denniaan^
2 Wend. 593; Van Santvoord v. St. John, 6 Hill, 157. But
when the forwarding agent is instructed as to the wishes of
his principal, and elects to disregard them, he is guilty of a
plain breach of duty. When he sends goods in a mode pro-
hibited by the owner, he does it at his own risk, and incurs
the liability of an insurer: Ackley v. KeUoggj 8 Cow. 225.
It appears in the present case that the contract was made
with the freight agent of the defendant, who suggested that it
would be better to forward the hemp by tow-boat from Albany;
but the plaintiff replied, in substance, that it was so late in
the season that he would not send it, unless it could go by the
People's Line. This proof tends to show that the defendant
received the property with an express understanding that the
hemp was not to be forwarded to New York unless by the
People's Line. If this was so, the defendant was clearly lia-
ble. On the refusal of the steamboat proprietors to receive
the property, the company should either have commimicated
the fact to the plaintiff, and awaited further instructions, or it
should have relieved itself from liability, by depositing the
hemp for safe-keeping in a suitable warehouse: Fonyth v.
Walker, 9 Pa. St. 148; Ooold v. Chapin, 20 N. Y. 259 [75 Am.
Dec. 398]; Fisk v. Newton, 1 Denio, 451 [43 Am. Dec. 649].
There is a class of cases in which an agent is justified by
an unexpected emergency in deviating from his instructions,
where the safety of the property requires it. In this instance
no such exigency arose. The only inconvenience which would
have resulted to the owner from compliance by the carrier
with his known wishes would have been mere delay in trans-
mitting the hemp to market; and he had notified the com-
pany that he would rather submit to this delay than to the
hazard of tow-boat transportation, at the close of the season of
navigation. The primary duty of the agent is to observe the
instructions of his principal, and when he departs from these,
Am. Dbc. Vol. LXXXVIII-27
418 Deyo t?. New York Central R. R. Co. [New York,
he must be content with the voluntary risk be assumes: 1 Par-
sons on Contracts, 69; Forrester y. Boardman^ 1 Story, 43;
AeUey v. Kellogg^ 8 Cow. 223.
The evidence would have authorized the jury to find that
there was a breach of duty by the defendant, and the nonsuit
was therefore erroneous. The judgment should be reversed,
and a new trial should be ordered, with costs to abide the
event.
Judgment reversed, and new trial awarded.
Bbown and Campbell, JJ., dissented.
LiABnjTT ov FoawAKDXBS GxNXSALLT: See Hooper ▼. TFeKs^ Fargot S
Oo,t 85 Am. Deo. 211. Canien are Uikble aa forwardara beyond their own
roate: Chreen ▼. j^. Y. CeniroX R, R, Co,, 12 Abb. Flr.» N. S.» 479. If m for-
warding, Bhipmente are made in a manner prohibited by the aender, the ear-
ner 8o forwarding is liable aa an insurer for the safe deHvery of the artidea
flo aent: WiUa ▼. MorreU, 66 Barb. 613; Rawwn t. SbUand, 5 Daly, 156; & 0.,
47 How. Pr. 300; Ikmay. IT. Y. CeniralR. R. Co,, 51 Id 430; ErieS'yOo.
y. Steiger, 5 Hnn, 346; €hodrieh ▼. Thon^^tson, 44 N. Y. 334; Maghee ▼. Gam-
dmAA,R.R. Co., 45 Id. 522; Hinckley ▼. N. Y. SCeniralR. R. Co., 66 Id
434; McBtoan r. J^emmvOk M. <ft /. R. R. Co., 83 Ind. 876, aU eitiiigtfac
prinoipal
Dbyo v. New Tobk Obntbal R E. Co.
[84 Naw Tobk, 9.J
OiBBms ov Passbngibs abb not Insubbbs ov Savbtt of THBm Pas-
SBNGBBS; their duty ia meaaored by the dangers that attend railroad
oarriage; and they must exhibit the utmost foresight aa to possible
dangers, and the utmost prudence in guarding against them.
To IdAJSTAis AcnoN TOB Daicaqbs AGAnrar Railboad Covfaxy iob Lf-
JUBIES TO PAasBHGBB, the plaintiff must prove affirmatively negligence
on the part of the defendemts, their servants or agents^ and freedom
from negligence on his own part, the former being the gist of the aetian,
and the latter equally important.
Nonsuit should bb Grantbd it Evidbnob a not SumoiBNT to wanaat
a verdict, or if the court would aet aside a verdict if found.
Action for damages. The opinion states the case.
L. TremaiUf for the appellant.
8. T. Fairchildf for the respondents.
By Court, Davies, J. This action was broaght to recover
damages for injuries to the plaintiflf^ claimed to have been
caused by the negligence of the defendants. On trial at the
Alhanv circuit, before Mr. Justice Wright, the plaintiff was
Sept. 1865.] Deto v. Nbw York Ceittral R. R. Co. 419
nonenited. Judgment having been entered for defendants, the
Bame was affirmed at the general term; and the plaintiff now
appeals to this court.
It appeared upon the trial that the plaintiff was a passenger
on the defendants' train of cars which left Sjrracuse for the
west on the night of the 19th of July, 1865, at 12:28. The
train was moving over that part of the road where the acci-
dent happened at about the rate of thirty miles an hour.
This section of the road was straight, well constructed, and in
good order when the train was thrown from the track and
the plaintiff injured. The night was very dark, and it was
raining at the time. The train was thrown from the track
through the culpable act of some unknown person, who ma-
liciously or mischievously drew the spikes which fastened the
chairs and the rails. The spikes, on examination, were found
to be drawn from the north side of two rails, the chairs shoved
back, and the spikes drawn from the chairs, and the rails
moved north. Marks were visible on the ties of a claw bar
having been used in removing these spikes. Two trains had
passed over this section of the road, at the point where the
injury happened, which was about four miles west of Syra-
cuse, a short time before. This accident happened at 12:36.
One train, going east, had passed over this part of the road at
10:40; another train, going east, passed this point at 11:15;
another train, going west, left Syracuse that night at twenty
minutes to 12, and passed that point at about 12 o'clock. The
road was in good condition, when these trains passed over it
in safety, and without any obstruction. A short time before
this accident, some obstruction had been placed in the road,
within half a mile of the point where the plaintiff was injured.
Search was fruitlessly made for the person who had placed it
there. It also appeared that Wibert, the assistant track-mas-
ter, a few days, before the accident had a difficulty with some
workmen, who had been laying track on the road. They
threatened to have satisfaction; and this occurred at a point
about six miles west of that where the accident happened.
It was known to these men that Wibert was in the habit of
passing and repassing in the cars over his whole division, and
usually rode on the engine. That night he remained in Syra-
cuse, but went in there from the west in a hand-car, about
seven o'clock in the evening. The track was then all right.
The inference is very strong that these men supposed he would
come out that night, and probably upon this train.
120 DxTO V. New Yoke Central R. R. Co. [New York,
The only question upon this appeal is, whether there was
any evidence of negL'genoa on the part of the defendants or
their servants sufficient to warrant the learned justice who
tried the action in submitting that question to the jury. It is
a familiar principle that carriers of passengers are not in-
euiGTB of the safety of their passengers. Their duty is meas-
ured by the dangers which attend railroad carriage; and the
utmost foresight as to possible dangers, and the utmost pru-
dence in guarding against them, are required to exempt them
from liability in case of injury to a passenger: Bowen v. New
York Central R R. Co,, 18 N. Y. 408 [72 Am. Dec. 529].
Story on Bailments says: '' Passenger carriers bind themselves
to carry safely those whom they take into their coaches, as far
as human care and foresight will go, — that is, to the utmost
<;are and diligence of very cautious persons." This doctrine
received the approval of this court in the case of Bowen, supra;
and it was added, that after the onus had been cast upon the
ca/riers, they are bound to show that there has been no negli-
gence whatever, and that the damage or injury has been oc-
casioned by inevitable casualty, or by some cause which
human care and foresight could not prevent. The familiar
form of expressing the rule of duty of the carrier is, '^ as far as
human care and foresight will go." Negligence is the viola-
tion of the obligation which enjoins care and caution in whftt
we do: Tonatoanda R. iJ. Co, v. Hunger, 6 Denio, 255 [49 Am.
Dec. 239]; S. C. affirmed, 4 N. Y. 849; Carroll v. New York
and New Haven R. JR. Co., 1 Duer, 571.
Another rule of law, equally well settled, and of familiar
application, is, that an action founded on alleged negligence
cannot be sustained if the wrongful act of the plaintiff co-oper-
ated with the misconduct of the defendants or their servants
to produce the damage sustained. If the act be one of mere
negligence on the part of the plaintiff, he cannot recover: Tona"
wanda R. R. Co. v. Murder, 5 Denio, 264 [49 Am. Dec. 239].
The same doctrine is repeated in this court in the same case
{4 N. Y. 360), and numerous cases cited to sustain it. If the
plaintiff, by any act of his, contributed to produce the inju/y,
he cannot recover. It has very frequently received the ap«
proval of this court in numerous cases: Steves v. Oswego and
Syracuse R. R. Co., 18 N. Y. 422; WUds v. Hudson River R. R.
Co., 24 Id. 430; S. C, 29 Id. 315.
There was no evidence in this action of any negligence on
the part of the defendants, their servants or agents. This
Sept. 1865.] Deto v. New York Central R. R. Co. 42)
portion of the track of the defendants was laid with the best
and most improved rail; it was in perfect order. It had been
passed over by their track-master a few hours before the acci-
dent; within two hours before it occurred, three trains of cars
had passed over it in safety, and it must then have been in
complete order. The proximate cause of the accident was th«
removal of the spikes which fastened the chairs and rails to
the ties and sleepers. It is apparent that as soon as these
fastenings were removed, a superincumbent pressure would
displace the rails, and thus inevitably throw the cars off the
track. No human care or foresight could guard against such
a diabolical act, committed under the circumstances developed
in this case. It is clear that these fastenings must have been
removed after the last train going east had passed the point
where the road was disturbed. This is manifest from the fact
that that train passed safely over the road, and that it was the
intention of the actors to have satisfaction of Wibert, the track-
master; and it is apparent that this was their motive in re-
moving the spikes. They doubtless knew of his going into
Syracuse that evening, and naturally supposed he would re-
turn by the express train coming out from Syracuse, going west,
that night. Their malice was therefore particularly directed
against that train as the one supposed to contain the object of
their malice and hatred. It was of no particular moment the
rate of speed at which the train was passing at the time of
striking that portion of the track which had been rendered in-
capable of sustaining the locomotive and cars. At any rate-
of speed testified to on the trial the result must have been the^
same, — the displacement of the rails, and the overthrow of the
engine and cars. The plaintiff, to maintain his action, had to
make out negligence on the part of the defendants, their ser-
vants or agents; this, it has been seen, there was an entire
failure to do. The culpability of the defendants must be
affirmatively proved before the case can go to the jury: Denio^
J., in Johnson v. Hudson River R. R. Co.y 20 N. Y. 71 [75 Am.
Dec. 876].
If, therefore, the jury, on this testimony, had found that the
defendants had been guilty of negligence, it would have been
the duty of the court to have set aside the verdict; it would
have been not only against the weight of evidence, but wholly
unsupported by evidence. In such cases, the duty of the court
is clear and well defined: 3 Graham and Waterman on New
Trials, 1204, and cases there cited; Brooks v. Buffalo ar^
422 Deyo v. New York Central R. R. Co. [New York,
Niagara Falls R, JR. Co,^ 25 Barb. 600; affirmed, court of ap-
peals, December, 1855; 8teve% v. Oswego R, R, Co., supra;
Wilds V. Hudson River R, R. Co., supra; Haring v. New York
and Erie R. R. Co., 13 Barb. 9. All these cases affirm also
the doctrine that if the evidence is not sufficient to warrant a
verdict, or if the court would set aside a verdict if found, it
is the duty of the court to nonsuit a plaintiff. This is dis-
tinctly declared in Sieves v. Oswego R. R. Co., 18 N. Y. 425,
and cases there cited. It is also very emphatically repeated
by this court in the case of Wilds v. Hudson River R. R. Co.,
supra, when that case was first in this court, as reported in 24
N. Y. 430. This court then declared it to have been the duty
of the judge, upon the facts proved in that case, to have non-
suited the plaintiff; the reasons for that judgment are very
clearly stated. The judgment in that case was reversed, and
a new trial ordered. Upon the new trial, the same state of
facts, substantially, having been proved as appeared upon the
former trial, the learned justice at the circuit nonsuited the
plaintiff, in accordance with the former judgment of this court.
This court affirmed the judgment of nonsuit (29 Id. 315), all
the judges concurring, except the judge who tried the case at
the circuit. The chief judge of this court said that the uncon-
tradicted evidence was such as not to present anything for the
Jury to deliberate upon, and therefore the nonsuit had been
properly granted.
In these cases the plaintiff was nonsuited, on the ground
that he could not maintain his action, because it appeared
that he had not been free from fault on his part. It is as
essential that this should be established as it is that the negli-
gence of the defendants should be made to appear. The latter
is the gist of the plaintiff's action; and the former is equally
important. In the language of Judge Gridley, in Spencer v.
Utica and Schenectady R. JR. Co,, 6 Barb. 837: "This is a stem
and unbending rule, which has been settled by a long series
of adjudged cases": Beers v. Housatonue R. 22. Co., 19 Conn.
566; Park v. O'Brien, 28 Id. 339; Neal v. OiOett, 23 Id. 437;
Daley v. Norwich and Worcester JR. R., 26 Id. 591 [68 Am.
Dec. 34]. And this rule is considered as the settled law of
Connecticut: Fox v. Town of Olastenbury, 29 Id. 204.
In Oahagan v. Boston and Lowell 22. 22. Co., 1 Allen, 187
[79 Am. Dec. 724], the supreme court of Massachusetts held
that if the whole evidence upon which the plaintiff's case rests
shows that he did not use due care, but was careless, the court
Sept. 1865.] Deyo v. New York Central R. R. Go. 428
may rightfully instruct the jury, as matter of law, that the
action cannot be maintained. In Toomey y. London^ Brighton^
and South Coast Railway Co.j 3 Com. B., N. S., 146, it was
held that the judge was justified in nonsuiting the plaintiff,
on the ground that there was no evidence of negligence on
the part of the company. Williams, J., said there was no evi-
dence of negligence on the part of the company or their ser-
vants which ought to have been submitted to the jury. It is
not enough to say that there was some evidence; a scintiUa of
evidence, or a mere surmise that there may have been negli-
gence on the part df the defendants, clearly would not justify
the judge in leaving the case to the jury; there must be evi-
dence upon which they might reasonably and properly con-
clude that there was negligence. Cotton v. Woodj 8 Com. B.,
N. S., 568, was an action under Lord Campbell's act, brought
by the plaintiff as administrator of his deceased wife for an
injury which resulted in her death. On the part of the de-
fendant, it was submitted that there was evidence to go to the
jury of actionable negligence on the part of the defendants'
servants. Of this opinion was the learned judge; but to save
the necessity of going down again, if the court should think
otherwise, he left it to the jury. On a motion for a nonsuit^
Erie, C. J., said he was of the opinion that the rule must be
made absolute to enter a nonsuit; that the plaintiff was not
entitled to succeed unless there be affirmative proof of negli-
gence on the part of the defendant or his servants. Wil-
liams, J., stated his concurrence, and added that there is
another rule of evidence which is of the first importance, and
is fully established in all the courts, namely, that where the
evidence is equally consistent with either view, — with the ex-
istence or non-existence of negUgence, — it is not competent to
the judge to leave the matter to the jury. The party who
affirms negligence has altogether failed to establish it. That
is a rule which ought never to be lost sight of. The other
judges concurring, the rule for a nonsuit was made absolute.
The doctrine of these cases fully supports the ruling at the
circuit, and the judgment entered thereon. The judgment
appealed from should therefore be affirmed.
Campbell, J. A train of the defendants was running at a
high rate of speed on a decending grade, but over a section of
the road straight for several miles, the road well constructed
and in good order, with engine and cars also in good condition,
424 Deyo v. New York Central R. R. Co. [New York,
when at a point a few miles west of Syracuse, and at about mid-
night, the train ran off the track, and the car in which the
plaintiff was riding as a passenger was turned over, and he
was seriously injured. Two other trains had passed over the
same point within two hours previous to the accident, — one of
them about thirty minutes before, — when the track and rails
were all in order. But in the short intervening time some evil
and malicious person had drawn out spikes and pushed some
of the rails from their bed, and by this means the engine and
part of the cars were turned off the track. There were three
passenger-cars and a baggage-car in the tr&in. They stopped
almost immediately, according to the testimony of the plain-
tiff, who is himself a railroad engineer. He was riding in
the middle car, which was turned over on its side, but the
car next in rear was not drawn entirely off the track. The
witnesses were in conflict as to the speed of the train at the
time of the accident, — the engineer who was in charge swear-
ing that he was positive he was not going much, if any, over
thirty miles an hour; while on the part of the plaintiff, evi-
dence was given tending to show that the rate was as high as
fifty miles per hour. The facts that the cars were stopped so
soon,— ^almost immediately, — that the couplings were not
broken, that with a small train of only four cars the last car
was not thrown entirely from the track, would tend to show
that there was not at the time a high rate of speed. But as
the plaintiff was nonsuited, we must perhaps take his evidencCi
and concede that the cars were running at a high rate, — say
fifty miles an hour. The train, it was said, was a few minutes
behind time; the road was in good order; the grade a little
decending; and the line in front straight for several miles. A
rate of fifty miles an hour is not common, but by no means
unusual or extraordinary on well-constructed roads. There
was a possibility of accident, as there is a possibility attending
the movement of every train, whether the rate be twenty or
fifty miles an hour. But there was no probability that such
accident or any accident would occur. As this train was
turned from the track by the ends of rails moved from their
bed, and ran down a bank, no court or jury would be warranted
in saying that the accident would not have occurred had the
train been running only at the rate of twenty instead of fifty
miles an hour. I do not see, under the circumstances, how
negligence could be imputed to the defendant in consequenoe
of the speed of the train. Whether or not the accident would
Sept. 1866 ] Dbyo v. New York Central R. R. Co. 425
have otherwiee occurred would be a matter of vague specu-
lation.
But was the defendant warned ? Would a very careful and
prudent person have been led to fear and take precautions
other than the defendant did to guard against anticipated
danger? Wibert, who was assistant track-master, and who
had charge of a division of the road of about twenty-nine
miles in length, was examined in behalf of the plaintiff. On
his division the accident took place. He testified that Miller,
the track-master on the whole line from Syracuse to Rochester,
had told him to be on his guard; but he could not tell whether
it was before or after the accident, but he thought it was be-
fore. Two or three days before the accident, Wibert also had
a controversy with his laborers on the road, and be ordered
them out of doors, and one of them he took by the collar and
shoved out, and they said they would have satisfaction. But
against what Miller advised Wibert to be on his guard, and
what kind of satisfaction the laborers intended to take, does
not appear. Whether he was to be on his guard to prevent
injury to the road, or to protect himself against personal vio-
lence, we are not informed.
The plaintiff, on his own behalf, swore that Harrison, the
engineer on the train the night of the accident, told him after-
wards that threats had been thrown out against the road six
weeks previous to such accident; this was positively denied
by Harrison. It also appeared that some six weeks before
the accident a tie or ties bad been put on tbe track; and
Wibert also testified that Chittenden, the assistant superin-
tendent, or Miller, the track-master, which, he did not know,
had told him that there had been, shortly before the accident,
some obstructions placed upon the road not far from where
the Oswego road came in, and not far from where the acci-
dent occurred. The information probably came from Miller,
who had previously been examined as a witness, and who
testified that he had heard that ties had been thrown on the
track. Chittenden, the superintendent, testified that when
danger was suspected from evil-disposed persons, watches
were placed; that he was in daily consultation with the prin-
cipal track-master; that he had heard nothing to put him on
his guard, and had no reason to suspect anybody; that after-
wards, and in consequence of the accident, he appointed spe-
cial policemen to watch the road in that vicioity.
It must be conceded, I think, that there was a question of
426 Deyo v. New York Central R. R. Co. [New York,
fact, growing out of conflicting testimony, as to the knowledge
possessed by some of the subordinate officers of threats made
against the road. But the evidence, to say the least of it, on
this point was very unsatisfactory; and it is very evident
that no such information had come to the person whose duty
it was to take the necessary precautions, and to appoint the
special police watch, namely, Mr. Chittenden, the assistant
Buperintendent, having in immediate charge this section of
the defendants' road.
But conceding that so far as the question affects the case of
negligence, the superintendent was bound to know all bis
subordinates knew, or in other words^ that their neglect was
his neglect, and his neglect that of the defendants, what was
required to be done under the circumstances? Wibert, to
whom the threats were made by the laborers, had under his
immediate charge twenty-nine miles of the road. Under the
circumstances of this case, suppose that a watch bad been
placed at the point where this accident occurred, and no ac-
cident had occurred there, but one had occurred of the same
character at or near Wibert's place of residence, and near
where the controversy arose between him and the laborers, it
might then have well been argued that there was neglect, if
the plaintiff is right in his theory of the liability of the de-
fendants.
But it may be seen that if not physically impossible, it was
practically so, to guard against such an accident as occurred
in this case. The threats were vague; no place of attack was
mentioned. It was not indicated what kind of injury would
be done; whether bridges would be destroyed, burned, or
blown up; whether obstructions would be placed on the rails,
or rails removed. In this case, the place selected was an em-
bankment, where bushes were growing thick alongside the
road, — a place of ready concealment. The night was dark,
and rain was falling. If obstructions were to be placed on the
road, it might be but the work of a moment; on the very in-
fltant, almost, that the train reached the spot If rails were
to be removed, the spikes could be drawn from time to time,
and preparation made, so that in a few minutes, perhaps
seconds, the rails could be removed as the train approached.
It cannot be said that it would be impossible to guard in such
cases against the motives and crimes of wicked men; but
unless the very point where the injury was contemplated was
known in advance, it would require for entire protection a
Sept. 1865.] Deyo v. New York Central R. R. Co. 427
very large number of recruits from the recent grand armies of
the Union.
On the whole case, I do not think there is good ground or
any ground for saying that this plaintiff suffered injury by
reason of the negligence of the defendants. J think the non-
suit was properly granted, and the judgment should be
afBrmed.
Judgment affirmed.
Passsnokb Cabbixbs abb not IivBUREBS, but are liable for the ntmost care
sod diligence: Warren v. FUehburg R. B, Co., 85 Am. Dec. 700, and note 706;
l%iyer v. 8L Loma etc B, S, Co., 85 Id. 409; Alden v. New York Cent B. B,
Co., 82 Id. 401, and note 403. The principal case is cited to the point that
passenger carriers are required to exercise the utmost care, and to adopt all
known and tested improvements calculated to secure the safety of passengers,
and are bound for the safety of their passengers so far as human care and
foresight will go: BarreU ▼. Third Avenue B. B, Co., 8 Abb. Vr., N. S., 211;
Cleveland ▼. New Jersey Steamboat Co., 5 Hun, 526; Maverick ▼. Eighth Avenue
B. B. Co., 36 N. Y. 381.
BURDIN OV PrOOV in AOTIGNS TOB NlGUOSNOB 18 XTFON PLAnffTOT:
McCuUy ▼. Clarke, 80 Am. Dec 584, and note 588; Warren ▼. FUehburg B. B
Co., 85 Id. 700. The mere fact of injury to the plaintiff is not sufficient.
The principal case is cited to this point in Quinlan ▼. Sketh Avenue B B. Co.,
4 Daly, 488; ParroU ▼. Bameif, 2 Abb. 225.
Plaintot in AcnoN iob Nbolioengb must Ebtabubh Avtibkativzlt
that he used due care. For cases taking this view^ see Warren r, FitMurg
B.B. Ca, 85 Am. Dec 700, and cases cited in the note 706. To the effect that
domtribntory negligence is a matter of defense, see Milwaukee etc B. B. Co. ▼.
ffmnter, 78 Id. 699, and note 706. The principal case is cited to the point
that proof of negligence on the part of the defendant is not alone sufficient to
establish plaintiff's cause of action. Some proof of the absence of contribu-
tory negligence on the part of the latter is also requisite; and although the
fact that the plaintiff was free from fault may frequently be inferred from the
facta and oircamstances of the case, still, where this cannot be done, it must
be proved 1^ direct evidence: Van Lien ▼. Sooville Mfg. Co., 14 Abb. Pr.,
N. S., 76; Burke ▼. Broadway and Seventh Avenue B. B. Co., 49 Barb. 531;
Brown t. SBiott, 4 Daly, 331; B. C, 45 How. 188; Quinlan ▼. Siaeth Avenue
B. B. Ok, 4Daly, 488; MUtonv. Hudson Biver Steamboat Qk, 37 N. Y. 212.
NoHsurr ob Vxbdiot iob Dxrndant in Aotions iob Neguqbnob may
be directed, whan: See Warren r. FUchbuiy B, B, Co., 85 Am. Dec 700^ and
note 706.
428 Bartlett v. Hoppock. [New York,
BaBTLETT V. HOPPOOK.
[84 NBW TOBK, u&]
BriATEMEST BY VxNDOB THAT HoQS SoLD ax6 "aoitable and proper lor the
New York City market " does not oonstitate a warranty, Imt is a mere
expression of opinion.
Caveat Emftob is Bulb of Sale in Absence ov Ezfbess Wabbantt,
where the vendee has eqnal knowledge or equal opportimitiea of knowl-
edge of the character or quality of the article sold with the vendor.
Wabbantt aw Fitness or Abtiole tob SPBomo Pubpose cannot be is^
plied from a knowledge on the part of the seller that the article is in-
tended for such purpose, except where the vendor is a manufacturer.
Oonvebsations between Vendee and Otheb Pebsons at Tihb or Sale
tending to show the vendee's knowledge of the real quality of the article
may be regarded as part of the res gesUB connected wiUi the issue of
warranty or no warranty; their admission is within the sound discretion
of the court) and whether admitted or rejected, it is not error.
Action to recover a balance due upon the sale of a quantity
of live hogs. The defendants set up that the plaintiffs war-
ranted the hogs to be corn-fed, and suitable for the New York
market, while in fact many of them were not corn-fed, and they
were unfit for market. The plaintiffs were agents or brokers,
and, acting in behalf of Sailer, the owner of the hogs, who
was a drover and stock dealer, they sold the hogs to one Dor-
man, who was the agent of the defendants. Verdict and
judgment were for the plaintiffs, and the defendants appealed
upon exceptions to the admission and exclusion of evidence.
In other respects the opinion states the case.
0. W. Sandfordf for the appellants.
E. P, Wheeler J for the resx>ondents.
By Court, Potter, J. If the rulings of the judge on the
trial wbre correct, then, whether or not there was a warranty
on the sale of the hogs in question to the defendants is set-
tled by the verdict of the jury, to whom that question was
submitted, and whose province it was to decide it. It is urged,
that by the improper exclusion of certain evidence by the
judge on the trial, which was offered by the defendants, and
by the improper admission of certain other evidence offered by
the plaintiffs, the proper presentation of the evidence of war-
ranty was prevented.
The averment of the terms of the warranty in the answer
of the defendants is, '' that the hogs were hard or com fed,
and were suitable and proper for the New York City market."
It can hardly be seriously urged, I think, that so much of
Sept. 1866.] Babtlett v. Hoppock. 429
this claimed warranty as is in the following words, '' that they
were suitable and proper for the New York City market," if
used by an Ohio drover to an experienced New York City
broker of the same article, who may be presumed best to know
the wants of the city in that regard, was understood by the
latter to be a part of the warranty. It would be but the ex-
pression of an opinion upon a subject upon which the pur-
chaser had much the better opportunity of knowledge; and
were it otherwise, it would not constitute a warranty in law.
The assertion that " they were hard or corn fed hogs " might
constitute a warranty, as it was shown that hogs fed on corn
are known in the trade as " hard-fed hogs,'' and are superior
in value and command a higher price in market than such as
are distinguished as " scalawags," " shackers," '* soft hogs," fed
upon mast, such as beech-nuts and acorns; or ^' slop-fed hogs^"
fattened at a still.
Assuming, for the present, that a representation that thu
hogs were *'hard or com fed " constitutes a warranty that the
hogs were of that character, and that experienced dealers are
unable to tell the difference between a ^'mast-fed" and a
''corn-fed " hog, on the hoof, before it is killed, the next in-
quiry is, whether there was any evidence given, or offered and
excluded, that tended to prove the warranty set up.
Dorman, the agent of the defendants in making the pur-
chase, the only witness of the defendants by whom a war-
ranty was attempted to be proved, entirely fails to prove any
express warranty made by Miles, one of the plaintiffs, of
whom he purchased the hogs, and with whom the whole nego-
tiation was made. Dorman was asked, as a witness, what
representations Miles made while negotiating for the hogs.
He answers, " He represented the hogs to be first-quality hogs,
and the highest priced hogs that were upon the market
I spoke to Mr. Miles as to their thinness, also about their
shrinking, — as a lean hog shrinks more than a fat one. 'You
know as well as I do,' said he, 'that they will bring the high-
est price of any hogs that come to the market'; that they were
the best hogs to sell in the market No agreement was
made about corn-fed hogs; he only said they were the best
hogs, and best suited to the market I don't remember
more than I have stated; I cannot tell the whole conversation;
he talked about the hogs being thin, etc.; he claimed that
these hogs were that day worth more than thick ones, net
weight; gross weight they were not. .... I could not dis-
430 Babtlett v. Hoppock. [New York,
cover that they were an3rthing different from what Miles rep-
resented." If there is a warranty in the representation above
proved, it must be implied from the representation that they
were ''first-quality hogs," and that they were the '^highest
priced hogs that were upon the market"; and this must be
implied from what was said to an experienced buyer, who saw
they were thin and small, not averaging over 115 pounds, and
who knew that they came from Ohio; and who, as well as the
seller, must be presumed to know the demands, in size and
quality, of hogs for the New York market, and what sizes and
quality of hogs were the highest priced in the market. If a
warranty may be implied from such a representation, made
under such circumstances, to such a party, it was to be implied
and found by the jury. It was not a warranty as matter of
law. In such case, caveat emptor is the maxim that applies:
Bieme v. J9ord, 5 N. Y. 98, and cases cited. No express war-
ranty was proved; and the purchaser takes the property at his
own risk as to its quality and condition: MUbum v. Belloni^
34 Barb. 609; Moses v. Mead, 1 Denio, 378, 385 [43 Am. Dec.
676], per Bronson, J.; Sdxas v. Woods, 2 Gaines, 48 [2 Am.
Dec. 215]; Swett v. Colgate, 20 Johns. 196 [11 Am. Dec. 266].
Nor would the plaintiff be liable upon such a representation
as is proved in this case, unless it be averred and proved that
the vendor knew the representation to be false: Carley v. Wil'
kins, 6 Barb. 557. This was not done in this case. In this
connection, it may be remarked also that the testimony of
Dorman, the witness, in relation to matters testified to by
him, was directly contradicted; and direct proof was given
that Dorman purchased the hogs with full and complete
knowledge that they were "soft hogs" or "shackers," raised
in the woods on beech-nuts.
I proceed, then, to examine the rulings of the judge on the
trial that were excepted to, in their order. The plaintiff, on
his cross-examination by the defendants, was asked three
questions, which were objected to and ruled out by the judge,
as follows: 1. "What was the price of sound' hogs, for city use,
that day, the 6th of February?" No point being presented on
the brief as to this ruling, it is regarded as waived; its mate-
riality, at all events, is, not seen. 2. "Did you know that
these hogs were sold to be slaughtered for city use, and to be
sent, when slaughtered, to Mr. Otis?" 3. "Did you direct Mr.
Searing to send these hogs to Mr. Otis?" The first of these
two latter questions relates to the knowledge of the plaintiff
Sept. 1865.] Bartlett v, Hoppock. 431
at a time before he made his contract of sale, as to what dis-
position the purchaser intended to make of the hogs. The
second question relates to what it was claimed was said by
the plaintiff, after the contract was consummated, in relation
to a negotiation for a settlement. I have been unable to see
any bearing which either of these questions have upon the
issues then to be tried, and have failed to find any error in
excluding this evidence.
The three following questions were put to Mr. Dorman, the
defendants' agent in the purchase of the hogs in question, and
also ruled out by the judge: 1. ^' What did Mr. Otis say, in
the presence of Mr. Miles, during the negotiations, as resx>ect8
these hogs being slaughtered for sale by him in the market?"
2. "What was Mr. Otis's business?" 3. ''Is Mr. Otis engaged
in selling pork as provisions in the market?" For the same
reasons that apply to the previous questions, no error is seen
in excluding the testimony called for. It is not shown they
have any material bearing upon the issues to be tried.
AH the preceding questions which we have noticed, and the
exceptions thereto, seem to be based upon the theory that a
warranty of fitness of an article for a specific purpose may be
implied from the knowledge on the part of the seller that the
article is intended for such specific purpose. This is a doc-
trine of the civil law which has been attempted, but unsuccess-
fully, to be made a part of our common law. The authorities
we have already cited clearly hold that where the vendor of
the article is not the manufacturer of the article sold, and in
cases where the vendee, as in this case, has equal knowledge
and equal opportunities of knowledge of the character or
quality of the article sold with the vendor, the vendor is only
liable upon an express warranty.
The next four questions put by the defendant to his wit-
nesses, and ruled out by the judge on objection, are as follows:
1. "What was the quality of the hogs after they were slaugh-
tered?" 2. "What took place between yourself and the plain-
tiffs, or either of them, when you called upon them to inform
them that a part of their hogs were soft?" The judge quali-
fied this question by stating to the witness that if any part of
the conversation related to what took place at the time of the
sale, or during the negotiation which led to it, you can state it.
The witness answered : " Nothing took place." The answer of
the witness, of course, puts an end to the effect of this excep-
tion. 3. "Did Miles and Bartlett, or either of them, when you
482 Babtlett v. Hoppock. [New York,
called upon them, give you any directions what to do with the
hogs?" 4. ^' What was done with the hogs after you saw Miles
and Bartlett? " The first, third, and fourth of these questions
relate to matters that occurred after the sale, not relating to
it, or to the negotiation leading to it; nor could the answers
explain, or tend to explain, anything testified to and called
out by either side. In the absence of the evidence of a war-
ranty, it is difficult to discover the materiality of the testi-
mony called for. Its materiality is not made to appear by
the brief and argument; its exclusion is not, therefore, shown
to be error.
The next exception was to the ruling out of the question put
by the defendant to one of his witnesses, as follows: *' What
do you mean by the usual warranty?" This question was
quite immaterial; besides, it called for the witness's definition
of terms that he had not used. There was no issue as to what
was the *' usual warranty." The exclusion of this evidence
was not error.
The next question ruled out was: "What took place between
you [the witness] and Miles and Bartlett when they came and
looked at the pork at your slaughter-house?" This was so
qualified by the judge as to admit anything that was said
about the bargain, and excluded what it called for otherwise.
The defendants have failed to show how this exclusion could
have injuriously affected them.
The next question was: ''After the sale of the pork, did you
have any conversation on the subject with Miles and Bartlett,
or either of them?" This was also modified by the judge so
as to admit anything that was said about the sale, or the
negotiations which led to it. The witness answered: "At the
corn exchange, Bartlett came to me, and asked me if I had
the account of sales of those hogs that I sold in the market;
that the owner of the hogs was then in the city, and he had
been selling another lot of hogs for him, and he wanted those
sales before he paid the man, in order to settle with him." On
motion of plaintiffs' counsel this answer was stricken out, and
defendants excepted. This answer did not come within the
rule allowed by the judge, and there was nothing material
to the issues to be tried contained in the answer. It was
properly stricken out.
The next objection taken by the defendants is to a ruling of
the judge on the admission of evidence. The plaintiffs asked
a witness: "What was said at the time, in the presence of Mr.
Sept. 1865.] Babtlett v. Hoppook. 433
Dorman, about this lot of hogs?" The time referred to in
this question was about the time Dorman, defendants' agent^
had agreed to purchase, and while he was yet in the yard
where the hogs were, and while they were being weighed; and
the inquiry was as to what third persons said to him at that
time. And the witness answered: "Mr. Phelps, a drover, was
rallying Dorman why he should buy such a set of * scalawags'
at the price of corn-hogs. Dorman said they were what the
market wanted, and he had sold them, and was going to make
money out of them, and did not care what they were
Phelps said they were nothing but beech-nut hogs; Dorman
said, ^That 's my business.^ This conversation continued dur-
ing the whole of the weighing, — perhaps ten minutes." From
this conversation, it appears that before the bargain was con-
summated, while the hogs were being weighed, to determine
the price, and at a time before the bargain was binding upon
Dorman or the defendants, Dorman fully knew and understood
the character of the hogs he was buying. It Was therefore
material to meet the question of warranty, express or implied,
as well as to contradict Dorman's testimony. The evidence
so obtained was directly connected with the principal issue to
« be tried, and the facts so related to the point of time of mak-
ing the contract that it may be regarded as part of the res gestx.
Its admission depended upon a question of sound discretion.
Whether admitted or rejected, the decision, I think, would not
have been error: 1 Oreenl. Ev., sec. 108.
A like question and like decision of the judge occurred in
the testimony of Cushman, a witness for the plaintiffs, during
the time the hogs were being weighed. A like question and a
like decision occurred after the plaintiff Miles was again re-
called, and was testifying to a conversation in the presence of
Dorman, which occurred while the hogs in question were being
weighed. Dorman was told "they were 'shackers' or 'beech-
nut hogs,' and Mr. Sailer, the drover and owner of them, said
they had had no com, and came out of the woods." This con-
versation was objected to by defendants, and admitted, and I
think properly, by the judge.
We have thus severally examined each of the objections of
the defenditnts to the rulings of the judge on the trial. We
have been unable to detect any such error committed as to de-
mand a new trial. We think the judgment should be affirmed.
Da VIES, J. The action was brought to recover the amount
of a bill for certain hogs, sold and delivered by plaintiffs to
AM. Dbc. Vol. LXXXVm— 88
434 BABTLirrT v. Hoppoge. [New York.
defendants. The only defense interposed was, that in the sale
the plaintiffs warranted the hogs '^ to he hard or corn fed hogs,
and suitable for the New York City market" The jury found
a verdict for the plaintiffs on this issue, and an examination
of the testimony shows that the alleged warranty is wholly
unsupported by any evidence. Nay, it is expressly negatived
by the only witness the defendants relied upon to prove it, —
Dorman, their agent, who purchased the hogs of the plaintiffs
for the defendants.
If there has been no error committed in the admission or
exclusion of evidence, no ground is presented for disturbing
the judgment. It is claimed on the part of the defendants
that the court erred in overruling testimony offered by de-
fendants to show the object for which they purchased the
hogs. This was unquestionably correct. Their purpose, ob-
ject, or intent in making the purchase in no way tended to
make out a warranty on the part of the plaintiffs in the sale.
The question was, what the plaintiffs said or did, and it was
of no moment to show what the object of the defendants was
in making the purchase, or whether or not the plaintiffs had
any knowledge of such object. A warranty on their part could
not be established by such evidence.
So it was entirely immaterial to ascertain the quality of
the hogs after they were slaughtered. If the warranty had
been proven, then and then only was it material to inquire
into tixe quality of the hogs after slaughtering, to show that
there had been a breach of the warranty. But as there was
an entire failure to make out the allegation of the answer,
that the hogs had been warranted to be hard or com fed hogs,
it was of no moment that they proved after slaughtering to
be soft hogs, and not corn-fed.
It is also objected that the testimony offered by defend-
ants of a conversation between the parties, after the hogs were
ascertained to be soft, was improperly excluded. The judge
allowed the witness to state any conversation which related to
what took place at the time of the sale, or during the negotia-
tion which led to it Anything which occurred subsequently
was wholly immaterial. If there was no warranty, it had no
relevancy, and what occurred after the sale and delivery had
no tendency to show that a warranty had been given at the
time of the sale. All conversation which related to what took
place at the sale, or during the negotiation which led to it|
was pertinent on the issue whether or not there was a war*
ranty, and any other conversation was irrelevant
Sept 1865.] Babtlett v. Hoppock. 435
It was of no importance to ascertain what was the usual
warranty on the sale of hogs. It had no tendency to solve
the inquiry whether or not there was a warranty upon this
particular sale of hogs. The usual warranty on other sales
was entirely irrelevant, and properly excluded. These 6Ug«
gestions apply to other offers of the defendants to put in evi*
dence other conversations of the parties about the hogs, not
relating to the question of warranty. It was of no moment
what was the condition of the hogs, hard or soft, or whether
or not the defendants only intended to buy hard hogs, if there
was no warranty that the hogs sold were of the particular
quality claimed.
It was of no importance, also, that the court admitted con-
versations between Dorman, the defendants' agent, and other
persons after the sale, tending to show Dorman's knowledge
of the actual condition of the hogs, upon the question of war-
ranty or no warranty. But such conversations and knowledge
of Dorman were important as tending to impeach his credi-
bility, and in this view were clearly admissible. He had tes-
tified that he would not have bought the hogs if one of the
plaintiffs, Miles, had said they were trash or scalawags; that
he had heard no comment about the hogs from any Western
drover. The testimony, therefore, as to such conversations
was properly admitted.
I see no force in any of the exceptions taken by the defend-
ants to the admission or exclusion of testimony, and as no
other question is presented for our consideration^ the judgment
appealed from must be affirmed.
Judgment affirmed.
No Imflibd Warrantt or MAznTTAoroBSB existe in a sale between mer-
chante: Diekhuon v. Cfay, 83 Am. Deo. 666, and note 663; Lord ▼. Cfrow, 89
Id. 504, and note 507. Ihe principal case is cited to the point that npon the
purchase of iron from a dealer, a warranty of qaality will not be implied from
the fact that the dealer knew the purpose for which it was intended: D<mnM
V. Daw, 64 N. Y. 415; S. C. in supreme court, 6 Thomp. & C 657; see, how-
ever, Beah v. OlmsUad, 58 Am. Dec 150, and note 153.
Caveat Emptor is Rule of Sale ts Absbuce or Fraih) ob Wabravtt:
Warner v. CUmenl, 78 Am. Dec. 411, and note 414; Hadley ▼. (MttUm Cwiinii§
Importing Co,, 82 Id. 454. And a mere expression of opinion or belief on the
part of the vendor will not create a warranty: Lamme v. Oreffg, 71 Id. 489;
■ec Weimer v. CUmeni^ gupra; Lord v. OroWf 80 Id. 604.
Evidence of Conversation Held or Acts Done at Tun or Trans-
action in question, and explanatory thereof, are admissible as part of the res
futcB: Bragg v. Afaa$i^§ AdnCr^ 79 Am. Deo. 82, and note 87; Monday ▼. BUiU^
79 LI. 314.
CASES
IH THl
SUPKEME COUBT
or
OHIO.
Wells v. Cook.
[lA Ohio Stati, «7.1
Onb Who has bxbn Dauaokd bt Aomro ufov Falo axd FBAumiLsn
BsPBBSBNTATioiiB made to him as agent of another, hat not intended le
he acted on by him, has no action for the deoeit agaiost the party making
the repreeentations.
No AonoN Lnca iob Damaoks Rxsultino to Plaiktztt ntox Aotino ov
Falsb and FRAUDXTUEirr RxFBBSKMTATioivs made to another, and not in-
tended to he acted upon by the plaintifiEL
Action for damages. The petition alleged that the defend-
ant sold to the plaintiff, as agent of his brother and for his
brother, twenty-six sheep, which the defendant knew at the
time were to be turned in with a large flock of sheep belonging
to plaintiff's brother, which were all sound and healthy and
free from any disease; that the defendant, at the time of the
pfurchase, wrongfully and fraudulently represented to plaintiff
that the sheep purchased were sound and healthy, and free
from any disease, whereas, though apparently sound and
healthy, they were not so, as the defendant well knew; that
the plaintiff afterwards bought from his brother all the sheep,
including those procured from the defendant, relying as to the
soundness of the sheep upon his own knowledge of the flock
before the addition of those purchased from the defendant,
and as to the latter, upon the representations of the defendan^.
The plaintiff further averred .that the sheep bought from the
defendant were at the time of the purchase unsound, and
inflicted with a disease known as the " foot-rot," which is con«
48S
Dec. 1865.] Wells v. Cook. 437
tagiouB, and which was by them commanicated to the rest of
the flock; that at the time of his purchase from his brother,
the disease had not made its appearance among the flock so as
to be noticed by the plaintiff or his brother, but it had since
broken out among the flock so as to render them almost entirely
valueless; and damages were prayed in the sum of four thou-
sand dollars. The defendant demurred to this petition, on
the ground that it did not state facts sufficient to constitute a
cause of action. The demurrer was sustained, and judgment
rendered for the defendant; whereupon the plaintiff assigned
error.
Oeorge Lincoln^ for the plaintiff in error.
Robinson and Robinaony for the defendant in error.
By Court, Bbineebhoff, C. J. The question is, whether
the state of facts set forth in the petition constitutes a cause
of action. The question is one of some difficulty; and the
facts as alleged make a case which strongly inclines the
mind to sustain the action, if that can be done without so far
trenching upon established rules of law as to amount to judi-
cial legislation. We have therefore held the case for some
time under advisement, and have bestowed upon it the best
consideration of which we are capable, but have been com-
pelled to the unanimous conclusion that the court below was
right, — that upon the facts alleged no action can be sus-
tained.
Lord Campbell, in Oerhard v. BateSj 20 Eng. L. & Eq. 136,
lays down the rule thus: ^'If A fraudulently makes a repre-
sentation which is false, and which he knew to be false, to B,
meaning that B shall act upon it, and B, believing it to be
true, does act upon it, and thereby suffers a damage, B may
maintain an action on the case for deceit." We have been
able to find no case which transcends the limits thus defined,
— no case which purports to hold, or is decided on the prin-
ciple, that if A makes a false and fraudulent representation
to B, meaning that C, and C alone, shall act upon it, and B
thereupon assumes to act upon it, and suffers damage, B can
maintain an action against A for the deceit. And as transac-
tions of the kind last supposed must be of frequent occur-
rence in every commercial country, the fact that no such case
can be found is strong evidence that such a doctrine is un-
known to the law. And the case last above supposed is
really the case before us. The representations complained of
438 Wells v. Cook. [Ohio,
were not made to the plaintiff meaning that the plaintiff
should act upon them in any manner or matter affecting his
own interests, but were made to the plaintiff, acting as the
avowed agent of his brother, simply in a representative capa-
city, meaning that the brother should act upon them; and the
fact that the brother was meant to act upon them, through the
plaintiff, as his agent, cannot, it seems to us, alter the case in
any legal aspect.
The cases which seem most nearly to approach a doctrine
which it would be necessary to hold in order to sustain this
action are Thovias v. Winchester^ 6 N. Y. 897 [57 Am. Dec.
455], and Langridge v. Levy, 2 Mees. & W. 518, and same case
on error, 4 Id. 336.
In the former case, it was held that " a dealer in drugs and
medicines who carelessly labels a deadly poison as a harm-
less medicine, and sends it, so labeled, into market, is liable
to all persons who, without fault on their part, are injured by
using it as such medicine in consequence of the false label,"
and this "though the poisonous drug with such label may
have passed through many intermediate sales before it
reaches the hands of the person injured." In that case, the
article sold purported to be a medicine, was intended for re-
tail in minute quantities, and to be administered in doses to a
great number of persons. And the court regarded the accom-
pan3dng label as a continuous representation to, and intended
to be acted on by, whomsoever it might concern; that the
article was what its label purported. In these particulars,
and others, the case differs from that before us, and falls short
of being conclusive of it, if the case be accepted as authority.
It is worthy of remark, however, that Gardiner, J., in his con-
curring opinion, places his concurrence solely on the ground
that the. sale of the poison without a label indicating that it
was a poison was declared a misdemeanor by a statute of
New York.
In the latter case {Langridge v. Levy^ supra), the plaintiff's
father bought of the defendant, avowedly for the use of himself
and his sons, a gun, which the defendant falsely and fraudu-
lently warranted to be of the make of one N., and to be a good,
€afe, and secure gun; whereas the gun was not made by N., but
by an inferior maker, and was unsafe, ill manufactured, dan-
gerous, and unsound; of all which the defendant, at the time
of the warranty, had notice; and the plaintiff, knowing and
confiding in the warranty, used the gun, which but for the
Dec. 1865.] Wellb v. Cook. 439
warranty he would not have done; and the gun, being in the
hands of the plaintiff, by reason and wholly in consequence
of the unsoundness, etc., burst and injured the plaintiff, etc.
The action in the court of exchequer was held to be main-
tainable, and the judgment was afterwards affirmed on error.
Parke, B., in delivering the opinion of the court, indicates so
clearly the distinctions between that case and the one now
before us that I quote him at some length. He says: " It is
clear that this action cannot be supported upon the warranty
as a contract, for there is no privity in that respect between
the plaintiff and the defendant. The father was the contract-
ing party with the defendant, and can alone sue upon that
contract for the breach of it. The question then is, whether
enough is stated on this record to entitle the plaintiff to sue,
though not on the contract; and we are of opinion that there
is, and that the present action may be supported. We are
not prepared to rest the case upon one of the grounds on which
the learned counsel for the plaintiff sought to support his
right of action; namely, that wherever a duty is imposed on
a person by contract or otherwise, and that duty is violated,
any one who is injured by the violation of it may have a
remedy against the wrong-doer; we think this action may be
supported without laying down a principle which would lead to
that indefinite extent of liability so strongly put in the course
of the argument on the part of the defendant; and we should
pause before we made a precedent, by our decision, which
would be an authority for an action against the vendors, even
of such instruments and articles as are dangerous in them-
selves, at the suit of any person whomsoever into whose hands
they might happen to pass, and who should be injured thereby.
We do not feel it necessary to go to that length, and our
judgment proceeds upon another ground. If the instrument
in question, which is not of itself dangerous, but which requires
an act to be done — that is, to be loaded — in order to make it so,
had been simply delivered by the defendant, without any con-
tract or representation on his part to the plaintiff, no action
would have been maintainable for any subsequent damage
which the plaintiff might have sustained by the use of it. But
if it had been delivered by the defendant to the plaintiff for
the purpose of being so used by him, with an accompanying
representation to him that he might safely so use it, and that
representation had been false to the defendant's knowledge,
and the plaintiff had acted upon the faith of its being true,
440 Wells v. Cook. [OhiO)
and had received damage thereby, then there is no question
but that an action would have lain, upon the principle of a
numerous class of cases, of which the leading one is that of
Pasley y. Freeman, 3 Term Rep. 51, which principle is, that a
mere naked falsehood is not enough to give a right of action;
but if it be a falsehood told with an intention that it should be
acted upon by the party injured, and that act must produce
damage to him; if, instead of being delivered to the plaintiff
immediately, the instrument had been placed in the hands of
a third person for the purpose of being delivered to and then
used by the plaintiff*, the like false representation being know-
ingly made to the intermediate person to be communicated to
the plaintiff, and the plaintiff had acted upon it, there can be
no doubt but that the principle would equally apply, and the
plaintiff would have had his remedy for the deceit; nor could
it make any difference that the third person also was intended
by the defendant to be deceived; nor does there seem to be
any substantial distinction if the instrument be delivered, in
order to be so used by the plaintiff, though it does not appear
that the defendant intended the false representation itself to
be communicated to him. There is a false representation
made by the defendant with a view that the plaintiff should
use the instrument in a dangerous way, and unless the repre-
sentation had been made, the dangerous act would never have
been done. If this view of the law be correct, there is no
doubt but that the facts which upon this record must be taken
to have been found by the jury bring this case within the
principle of those referred to. The defendant has knowingly
sold the gun to the father for the purpose of being used by the
plaintiff by loading and discharging it, and has knowingly
made a false warranty that it might be safely done, in order
to effect the sale; and the plaintiff, on the faith of that war-
ranty, and believing it to be true (for that is the meaning of
the term ^ confiding'), used the gun, and thereby sustained the
damage which is the subject of this complaint. The warranty
between these parties has not the effect of a contract; it is no
more than a representation; but it is no less. The delivery
of the gun to the father is not, indeed, averred; but it is stated
that by the act of the defendant the property was transferred
to the father in order that the son might use it; and we must
intend that the plaintiff took the gun with the father's con-
sent, either from his possession or the defendant's; for we are
to presume that the plaintiff acted lawfully, and was not a
Dec. 1865.] Wells v. Cook. 441
trespasser, unless the contrary appear. We therefore think
that as there is fraud, and damage the result of that fraud,
not from an act remote and consequential, but one contem-
plated by the defendant at the time as one of its results, the
party guilty of the fraud is responsible to the party injured.
We do not decide whether this action would have been main-
tainable if the plaintiff had not known of and acted upon the
false representation; nor whether the defendant would have
been responsible to a person not within the defendant's con-
templation at the time of the sale, to whom the gun might
have been sold or handed over. We decide that he is respon-
sible in this case for the consequences of this fraud whilst the
instrument was in the possession of a person to whom his rep-
resentation was either directly or indirectly communicated,
and for whose use he knew it was purchased."
It will be seen that in order to render the case before us
analogous to that of Langridge v. Levy^ 2 Mees. & W. 518, it
would have been necessary for the plaintiff, at least, to have
alleged that the diseased sheep were purchased for the avowed
purpose of turning them in with other sheep of his own; but
it does not even appear that at that time he had any sheep of
his own, or that he expected to have any. And in the subse-
quent case of Winterbottom v. Wright^ 10 Id. 107, Lord Abinger
declares that the case of Langridge v. Levyy supra^ has been
much misapprehended, and tiiat the principle of that case
ought not to be extended.
The influences of human conduct, good or bad, are far-reach-
ing, and are often seen and felt in consequences exceedingly
remote, but uncertain and complicated. It is simply impos-
sible that municipal law should take cognizance of all these
consequences. From necessity, a large share of them must be
left to the jurisdiction of public opinion, individual conscience,
and finally to the retributions of another world. There must
somewhere be fixed a limit between the near and remote, di-
rect and indirect, consequences, beyond which the law will
not take cognizance of them. And in this case, we are satis-
fied that one of the prescribed limits is this: that the false
and fraudulent representations must have been intended to be
acted on, in a matter affecting himself, by the party who seeks,
redress for consequential injuries. If this limit is to be ex-
tended, it must be the work of the legislature.
We have considered this case solely upon principles of the
oommon law; for under the ruling of this court in Vining y.
442 Wells v. Cook, [Ohio,
Bricherj 14 Ohio St. 331, the act of February 19, 1837, " to
prevent the spread of disease among sheep," leaves the civil
rights and remedies of parties sustaining damage by reason
of the sale of diseased sheep unchanged.
Scott, Day, White, and Welch, JJ., concurred.
Judgment affirmed.
Whether Pabtt gait Recover for Injttries Sititered frox Acmro
on ADYins Given or Rsfresektations Made to Another. — The doc-
trine of the principal case is obvionaly sound. The moral responsibility of a
man for the remote aa.weU as the immediate consequences of his fraudulent
representations may be granted, but it must at the same time be conceded
that no human system of jurisprudence is sufficiently perfect to be capable of
administering exact justice, where the remote results of a man's actions are
in question. It is only with those injuries that plainly and certainly follow
from acts and representations that the law may properly and effectually deal:
See the remarks of Lord Hatherly in Barry v. Crosahey, 2 Johns. & H. 22.
Accordingly, the rule is, as laid down in the principal case, that a person who
acts upon fraudulent representations made to another has no action against
the person making the representations, unless the latter intended that the
complaining party should act upon them; or in other words, in every action
for a deceit^ it must appear that the defendant intended that the plaintiff
should act upon his false and fraudulent statements: Langr'idge ▼. Levy, 2
Mees. & W. 619; S. 0. on error, 4 Id. 336; Bet^fwd v. Bagthaw, 29 L. J. Ex.
eS; Prdc V. Ourney, L. R. 6 H. L. 377, 396, 412; Eosegood v. BuH, 36 L. T.,
N. S., 617; Barry v. CroaOiey, 2 Johns. & H. 1, 17, 18, 22, 23; Beealey ▼. Ham-
iUon, 50 HL 88; Bowlings ▼. Bean, 80 Mo. 614; Comstoek v. Ames, 3 Keyes,
357; Baton v. Avery, 83 N. Y. 34, 35; McCracken v. West, 17 Ohio, 16; Wart
V. Brown, 2 Bond, 267; see also CUfford v. Brooke, 13 Ves. 132. If a false
statement is made to a person to induce him to act in a certain manner, the
rest of the world have no legal right to rely upon the statement; and if they
do so, and suffer injury, they have no remedy against the person making the
false statement: McOracken v. West, 15 Ohio, 26. For in an action of deceit,
there must be such a connection between the party doing the act and the
party that suffers by it as to show that the injury is within the scope of the
fraud intended: Munroe v. Gardener, 1 S. G. Const. 1. Thus where repre-
sentations concerning a person's solvency are made to another, and are ex-
pressed to be confidential and personal, or are intended to be such, and the
person to whom the representations are made communicates them without
authority to another, who acts upon them to his injury, they being false, he
has no action against the person making the representations, since he cannot
be regarded as within the scope of the latter's intent: Hoaegood v. Bull, 36
L. T., N. S., 617; RawUngs v. Bean, 80 Mo. 614. So if a person write a let-
ter to another, desirini; him to introduce the bearer to such merchants as he
may desire, and describing him as a man of property, and the person having
the letter do not deliver it to the person to whom it is directed, but use it to
obtain credit elsewhere, the persons so giving credit cannot maintain an ac-
tion for deceit, though the representations in the letter be untrue: McOratken
V. West, 17 Ohio, 16. So where the payee of a note procures a party to sign
the note as surety upon the promise fraudulently made that he will proonre
another person also to sign the note as surety, this will not oonstitate a d«-
Dec. 1865.] Wells v. Cook. 443
fcnse for the makers of the note; hat if a defense at all, it is {tersonal to the
surety: BeeAkif v. Hamiiton, 50 IlL 88.
Ou the other hand, if it can be shown that the psrty making the false and
fraudulent representations intended the plaintiff to be inflnenoed by them,
though they were not made to him directly, he will be liable for the dam-
ages snffcrciL Or in the language of Lord Hatherly, — then Vice-Chancel-
lor Wood, — in Barry v. Crosskey, 2 Johns. & H. 23: "Ereryman most
be held responsible for the consequences of a false represenbiUon made dy
him to another, upon which a third person acts, and so acting h ixijure<l or
damnified, provided it appear that such false representation "a as mad* witn
the intent that it should be acted upon by such third peraon in the manner
that occasions the injury or loss.'* The leading case to this effect is Lang-
ridge V. Levy, 2 Mees. & W. 519, S. C. on error, 4 Id. 336, from which a
lengthy quotation from the opinion of Parke, B., is contained in the prin-
cipal case. In that case, the father of the plaintiff purchased a gun from
the defendant, avowedly for the use of himself and his sons, and the de-
fendant falsely and fraudulently represented it to be safe; and the plain-
tiff, relying upon these representations, used the gun, and was injured by
its bursting in his hands; and it was held that the plaintiff had no action
upon the warranty as a contract, as there was no privity between him and
the defendant, but that the defendant was liable in damages to him, since the
false representation, though made to the father, was intended by the defend-
ant to be acted upon by the son, since he sold the gun to the father to be
used by the son. And in the subsequent case of WhUerbottom v. WHglU, 10
Mees. & W. 107, Lord Abinger said that this case had been much misappre-
hended, and that the principle of the case ought not to be extended. So in
the application of this principle, the distinction between fraud and warranty
is to be kept in mind. Thus in Langridge v. Levy, mtpra, it is said had the
action been ex contractu, it could not have been maintained, there being no
privity between plaintiff and defendant. So in Lcngmeid v. HolUday, 6 Ex.
761, a case in its facts strikingly similar to La»gridge v. Levy, the action was
not maintainable, because the cause of action was a breach of warranty, and
not deceit. In that case, the husband bought a lamp to be used by himself
and wife, and told the seller that it was to be so used, and the seller repre-
sented the. lamp to be safe, believing it to be so. The lamp exploded and in-
jured the wife, and she sued the seller. Here there was no fraud, but merely
a warranty, and the action therefore lay only in behalf of the husband, there
being privity between him and the seller, and none between the wife and the
seller.
Bui the principle has its legitimate application, and when the plaintiff's
injury is within the scope of the fraud intended, he has his action. Instances
of this occur when the defendant makes false representations to a third per-
son with the intention that they shall be communicated to the plaintiff or to
a class of persons to which the plaintiff belongs, or where the representations
are made to the public generally with a view to their being acted on, and the
plaintiff, as one of the public, acts upon it, and suffers damage thereby. And
so it is not always necessary to the maintenance of the plaintiff's action of
deceit that the representations complained of should be made to him directly,
for if made in either of the above-mentioned ways, he will be regarded as within
the scope of the intended wrong, and his action against the person making
the false and fraudulent representations will lie: 8w\/t v. Wtnterboiliam, L. IL
8Q.B.253.
Thus in XoOan v. Avery, 83 N. Y. 34, 35, it is said, per Bapallo, J.: "Ths
444 Wells v. Cook. [Ohio,
counsel for the appellant is undonbtedly right in his general proposition that
a false representation made to one person cannot give a right of action to
another to whom it may he commnnicated, hut who acts in reliance upon
its truth. If A casually or from vanity makes a false or exaggerated state-
ment of his pecuniary means to 6, or even if he does so with intent to de-
ceive and defraud B, and 6 communicates the statement to C, who acts
upon it, A cannot he held as for a false representation to 0. But if A makes
the statement to B for the purpose of heing communicated to C, or intend-
ing that it shall reach and influence him, he can be so held." See also, to the
same effect, WatBon v. CranddU, 7 Mo. App. 233; S. C. affirmed, 78 Mo.
583; BaJser v. CrandaU, 78 Id. 584; ConmumufeaUh v. CaU, 21 Pick. 515, 523;
Commonwealth v. ffarley, 7 Met. 462.
Therefore, upon this principle, one who makes false representations to a
mercantile agency — and of the nature of the business of institutions of this
character it is held that courts will take judicial notice — concerning his
own solvency and commercial standing, or that of another, is liable in dam-
ages to a person who, relying upon the reports of the commercial agency
based on his statements, sold goods upon credit: Eaton v. Avery, 83 K. T.
31; Ooodwin v. OoMsmUh, 49 N. Y. Super. Ot. 101; Oeneaee CoutOy 8aoing9
Bank v. Michigan Barge Co., 52 Mich. 164; or this may be ground for the
rescission of the sale: Naugatuck CuHery Co. v. Babeock, 22 Hun, 481, 485,
486. But such representation will hold against the defendant only as to sales
made within such time as according to the custom of the agency would elapse
before another application is made to him and another statement procured:
MacuUar v. McKirdey, 49 N. Y. Super. Ot. 6.
The same principle was applied in Watson v. CrandaU, 7 Mo. App. 233, S. C.
affirmed, 78 Id. 583, and the defendant was held liable where he gave to one
Homblower certificates of stock to be filled up with the names of persons to
be selected by Homblower, and gave him certain letters to exhibit to the
persons who should subscribe to the stock, containing false statements calcu-
lated to induce them to take the stock. See also A lien v. Addington, 7 Wend. 9.
Likewise, when the defendant makes false representations with the inten-
tion of deceiving a class of persons to which the plaintiff belongs, though the
representations are not made to the plaintiff personally, yet he has his action:
Peek V. Oumej/t L. R. 6 H. L. 377, 396, 412; Bedford v. Bagshaw, 29 L. J. Ex.
65. And BO, where representations are made for the express purpose of in-
fluencing the mind of the public, and of inducing individuals of the publio
to act upon them; for then a person who does so act upon them to his damage
b entitled to regard them as made to himself, and to treat them as frauds
upon himself. The most frequent instances of this sort are prospectuses of
corporate undertakings, or published reports as to the affiiirs and financial
condition of corporations, designed to influence individuals of the public to
invest in the stock thereof: Cooley on Torts, 494; 1 Smith's Lead. Gas. 296,
297; Peekv, Oumey, L. R. 6 H. L. 377; North Brunswick ItyCo, v. Conybeartt
9 H. L. Gas. 711; Gerhard v. Bates, 2 El. & K 476; S. G., 22 L. J. Q. B. 364;
20 Eng. L. & Eq. 130; Richardson v. Silvester, L. R. 9 Q. B. 34; Henderson v.
Lacon, L. R. 5 Eq. 249; ScoU v. Dixon, 29 L. J. Ex. 63, note; Davidson v. Tut-
loch, 3 Macq. 783; Wilcox v. Henderson, 64 Ala. 535; Wesi ▼. Wright, 98 Ind.
335; Caseaux v. MaU, 25 Barb. 578; Newberry v. Garland, 31 Id. 121; Draki
V. GroMt, 86 Hun, 464; Fenn v. Curds, 23 Id. 384; Thomas v. Winchester, 7
N. Y. 397; New York etc R. R, Co, v. Schuyler, 34 Id. 30; Bruffy. MaU, 36 Id.
200; Morgan v. Shddy, 62 Id. 319; Barnes v. Brown, 80 N. Y. 527; Bar-
thokmew v. Bentley, 15 Ohio, 659; Bank qf Montreal ▼. Thayer, 2 McGraxy, 1.
Dec. 1865.] Citt of Cleveland v. State Bank. 445
And this may be ground for the rescission of a contract tot the porchase of
shares of stock in a corporation: Western Bcmk ▼. AddU, L. B. 1 H. L. S.
146.
Thb FBDf dPAL oin WAB dTiD tnd f oUowed in Ware t. Brown, 2 Bond,
170.
City op Cleveland v. State Bane of Ohio.
* \]A Ohio Statb, 286.J
PowiB TO Sill Psbsonaltt dois not Authobizs Bartbb or £zcnA5o&
CbionssiONEBs Ekpowxrsd bt Special Statutb to Aor in Bxhalf of «
Citt in sabscribing to stock of a railroad company and anthorised to sell
the stock, "and to do whatsoever else may seem necessary to secure end
advance the interests of the city in the premises," have no power to ex-
change the stock for stock in another company; as the power to sell does
not indnde the power to exchange, and the clanse following does not en-
large the specific powers before conferred, the phrase " in the premises "
limiting the discretion therein granted to the manner of exercising the
powers specifically granted.
O010CI88IONXBS Authorized bt Statute to Act in Behalf of Cmr de-
rive their powers solely from the statute, and those dealing with them or
claiming under them directly or remotely, are bound to take notice of
the extent of those powers; and the city is not estopped to deny the ex-
istence of a power assumed by them.
AaaxoNMEMT OF Shares of B.ailroad Stock as Collateral Sboubity for
pre-existing debt, not contracted on the faith of the security, confers upon
the assignee no better title than his assignor had, and he takes subject to
equities.
Bill for iDJunction and other relief. The case was reserved
for the decision of this court upon facts found by the district
court from the pleadings, exhibits, and evidence. From these
findings, it appeared that in 1851 tiie legislature of Ohio passed
an act to authorize the city of Cleveland to subscribe to the
capital stock of the Cleveland, Painesville, and Ashtabula
Railroad Company, and empowered five persons and their
successors, as commissioners, to subscribe, in the name of the
city of Cleveland, for shares of such stock, not exceeding one
hundred thousand dollars in amount; and for the purpose of
paying for the same, to issue bonds, scrip, or other contracts
in the name of and binding upon the city of Cleveland. The
first section of the act also provided that '' the shares of stock
so subscribed, and the avails arising from the sales thereof,
shall be held for the purpose of paying the principal of such
bonds, scrip, or other contracts, and shall be subject to uo
other liability of the city whatever, so long as such bonds,
scrip, or other contracts shall remain unpaid." By the third
146 City of Cleveland v. State Bank. [Ohio,
nection of the act, the commissioners were invested with sev-
eral powers, such as voting at stockholders' meetings, and re-
ceiving and applying any dividends or profits accruing upon
the bonds, scrip, or other evidences of indebtedness issued by
them in payment of the shares; and were then authorized '^to
exchange shares or any part thereof for the evidences of such
indebtedness; to sell said shares, or any part thereof, at such
time or times as to them may seem .expedient; and to do
whatsoever else may be necessary to secure and advance the
interests of the city in the premises; provided, however, that
said commissioners shall not sell any of said shares at less
than the par value thereof, unless they shall be expressly au-
thorized to accept a less price " by the city council in the
manner specified. The commissioners duly subscribed for
two thousand shares, at fifty dollars each, of the capital stock
of the Cleveland, Painesville, and Ashtabula Railroad Com-
pany, and received the certificates therefor. Afterwards, the
Cleveland, Zanesville, and Cincinnati Railroad Company, by a
committee of their directors, composed of J. W. McMillen and
others, commenced negotiations with these commissioners with
a view to obtaining a transfer of the railroad stock held by
the city of Cleveland to themselves, in exchange for their own
stock, for the purpose of aiding them in the construction of
their road between Cleveland and Zanesville, which they
urged would prove a great benefit to Cleveland. The com-
missioners requested the advice of the city council of Cleve-
land in reference to this matter, who, by resolution unanimously
adopted, advised the commissioners to make any disposition
of the railroad stock held by them to the Cleveland, Zanes-
ville, and Cincinnati Railroad Company that they might deem
proper. These negotiations resulted in a contract between
the commissioners and the Cleveland, Zanesville, and Cincin-
nati Railroad Company, by which the commissioners agreed
to sell and transfer to the railroad company capital stock of
the Cleveland, Painesville, and Ashtabula Railroad Company
to the amount of one hundred thousand dollars, in considera-
tion of the issuance and delivery to them by the Cleveland,
Zanesville, and Cincinnati Railroad Company of one hundred
and twenty-five thousand dollars of their capital stock, the
company guaranteeing that this stock should be worth in the
market five years thereafter its full par value, and agreeing, in
case the stock should fall below its par value, to make up the
deficiency; and to secure the fulfillment of this stipulation,
Dec. 1865.] City of Cleveland v. State Bank. 447
the company agreed to execute ard deliver to the commis-
Bioners its income bonds to the amount of one hundred and
fifty thousand dollars; and the company further agreed to
make Cleveland the northerly terminus of its road. This
contract was performed soon after its execution, the commis-
sioners delivering to the committee of the railroad com-
pany the certificates for two thousand shares of the Cleve-
land, Painesville, and Ashtabula Railroad Company held
by them, and receiving from the committee a certificate
for one hundred and twenty-five thousand dollars of stock in
their company, and an income bond for one hundred and fifty
thousand dollars. The court also found, upon evidence, the
admission of which was objected to by the defendant, that it
was orally agreed between the committee and the conmiis-
sioners that the stock of the Cleveland, Painesville, and Ash-
tabula Railroad Company should not be disposed of or used
by the Cleveland, Zanesville, and Cincinnati Railroad Com-
pany for any other purpose than to raise the means of con-
structing that portion of the company's road which lies
between Iklillersburg and Zanesville, and that it should not
be used at all unless the subscriptions promised along the
line of the road should be secured to the amount of four hun-
dred thousand dollars. McMillen, at the time of this ex-
change of stock, was the treasurer and financial agent of the
Cleveland, Zanesville, and Cincinnati Railroad Company, and
in that capacity received the certificates of stock delivered
over by the commissioners under the contract, and deposited
them in the vault of the Bank of Akron, of which he was the
president. He afterwards made advances to the railroad
company, out of the funds of the bank, to the amount of one
hundred and five thousand dollars, but not upon the faith
and credit of the stock. The advances were also made un-
lawfully, and without the authority of the bank. The fact of
his misapplication of the bank Amds for the benefit of the
railroad McMillen afterwards communicated to the board of
directors of the railroad company, and solicited the board to
make a formal pledge of the stock to him as security for the
advances so made. This the board of directors did, by caus-
ing the stock to be formally assigned to McMillen as security
for the one hundred and five thousand dollars so advanced.
Afterwards, McMillen assigned to the Bank of Akron all debts
due him from the Cleveland, Zanesville, and Cincinnati Rail-
road Company, and all securities held for the same, especially
448 City of Cleveland v. State Bank. [Ohio,
the two thouBaDd shares of the stock of the Cleveland, Paines-
ville, and Ashtabula Railroad Company " assigned and trans-
ferred to me, to be held by the said Bank of Akron as
collateral security for all claims and indebtedness which it
may have against me "; and he delivered the certificates of
stock to the bank. Shortly afterwards, the railroad company
rescinded its resolution by virtue of which the stock was as-
signed to McMillen. It was also found that the one hundred
and twenty-five thousand dollars of stock of the Cleveland,
Zanesville, and Cincinnati Railroad Company afterwards be-
came of no value whatever; and therefore the commissioners
demanded that sum of the railroad company under the terms
of the agreement, as the difierence between the market value
and the par value of the stock. The board of directors then,
in consideration of the surrender of the certificate of stock in
their company and the income bond of the company, passed
a resolution that, whereas, by reason of unforeseen contin-
gencies, there was no immediate prospect of securing the con-
struction of the road from MiUersburg to Zanesville, to the
construction of which portion of the road the stock of the
Cleveland, PainesvUle, and Ashtabula Railroad Company was
to be appropriated under the agreement, and whereas the
stock of the Cleveland, Zanesville, and Cincinnati Railroad
Company was greatly depreciated in value, and the company
was utterly unable to fulfill its part of the contract by making
up the difference between its actual value and the par value,
and whereas the income bond constituted no adequate secu-
rity therefor, a committee of two named persons be appointed
to act for the company in the premises, and to retransfer the
stock of the Cleveland, Painesville, and Ashtabula Railroad
Company to the commissioners for the benefit of the city of
Cleveland, and to grant to them all the interest, power, and
authority over the same which the company itself had. Such
retransfer was accordingly made. Some time before this, and
shortly after McMillen assigned the stock to the Bank of
Akron, the bank committed an act of insolvency, and there-
upon, it being a branch of the State Bank of Ohio, all of
its property and securities, including the claim against Mc-
Millen and the stock as security for its payment, as far as the
same vested in the Bank of Akron by virtue of the assign-
ments before mentioned, passed to the defendant, the State
Bank of Ohio, by virtue of the statute in such case made and
provided. Though the certificates of the stock of the Cleve-
Dec. 1865.] Cmr of Cleveland v. State Bank. 449
land, Pamesville, and Ashtabula Railroad Company had been
delivered and passed from hand to hand, the stock had not
been transferred upon the books of the company, but still
remained to the credit of the city of Cleveland. The suit was
instituted against the State Bank of Ohio, Wolcott, as receiver
of the Bank of Akron, McMillen, and the two railroad com-
panies, to perpetually enjoin all of the defendants, except the
Cleveland, Painesville, and Ashtabula Railroad Company,
from transferring or in any way disposing of certificates for
two thousand shares, of fifty dollars each, of stock in the
Cleveland, Painesville, and Ashtabula Railroad Company, or
any interest or pretended interest in the same, and fi:om pro-
curing or demanding any transfer of the stock on the books of
the company; and to enjoin the latter company firom trans-
ferring the stock upon its books to the State Bank of OhiO|
Wolcott, as receiver, or to the other defendants, or any one
named by them; and to obtain an order of court that the de-
fendants (except, of course, the Cleveland, Painesville, and
Ashtabula Railroad Company) surrender up the certificates
of stock to the plaintiff, and for such other and further relief,
etc. Upon the foregoing facts, as found in the district court,
the case was reserved for the decision of this court
R. P. Ranneyj F. T. BackuSy R, Hitchcock^ and 8. J. Andrewif
for the plaintiff.
Hunter and Daugheriy^ for the State Bank.
By Court, Bbinkerhoff, J. The amount of the railroad
stocks in contest between the parties before us is very large
and valuable; and this circumstance, rather than any intrin-
sic difficulty in the questions which the case necessarily pre*
sents, has given the case much of temporary interest and
importance. As was natural and proper, the case has been
argued by able counsel at great length, both orally and in
print; and many questions which it is not necessary for us to
pass upon in order to decide the case have been raised and
discussed on the hearing. These we have mostly passed over;
and we have confined ourselves to two questions, the decision
of either of which in favor of the plaintiff, the city of Cleve-
land, precludes all further question of its right to the relief
which it seeks.
The first question is this: Had the commissioners of the
city of Cleveland the power to make the contract which they
Ajc Dca Vol. LXXXVUI-29
460 City of Cleveland v. State Bank. [Ohio,
assumed to make with the Cleveland, ZanesNille, and Cindn-
nati Railroad Company?
Tf they had such power, it is to be found in the act of the
general assembly which made them commissioners and defines
their powers. It can be derived from no other source. And
in respect to that act, I may remark that it needs only a care-
ful reading of it to show that its draughtsman, whoever he
may have been, evidently had a distinct idea of the objects
aimed at by the Legislation he proposed; and that he under-
stood the significance of language, and knew how to employ
it 60 as to give a clear and definite expression to his ideas.
Now, what was the contract which the commissioners of
Cleveland assumed to make? It was not a sale for cash in
hand, nor for money on terms of credit. It was nothing but
an exchange,^- a swap of the stock of the Cleveland, Paines-
ville, and Ashtabula Railroad, owned by the city of Cleveland,
for a larger nominal amount of the stock of the Cleveland,
Zanesville, and Cincinnati Railroad, — the latter guaranteeing
that its stock, given in exchange, should, at a given period of
time, be worth a certain sum of money in the market. Now,
in looking into the act referred to for power in the commis-
sioners of the city of Cleveland to make this contract for an
exchange and barter of stocks, all that we can find from which,
with a show of plausibility, such power can be inferred, is the
power (sec. 3) " to sell said shares, or any part thereof, at
such time or times as to them may seem expedient, for not less
than their par value, .... and to do whatsoever else may
seem necessary to secure and advance the interests of the city
in the premises." But the power to sell is one thing, and the
power to barter and exchange is another and a very different
thing. "A sale of a chattel is an exchange thereof for money,
but a sale is discriminated in many repects from an exchange
in law, and exchange being the giving of one thing and the
receiving of another thing, while a sale is the giving of one
thing for that which is the representative of all things ": 1
Parsons on Contracts, 521. And the same distinction is as-
serted in Story on Sales, sec. 1. And a power to sell does not
authorize a barter or exchange: Taylor v. GaUotoay^ 1 Ohio,
232 [13 Am. Dec. 605].
And the following clause of the act, giving to the commis-
sioners of Cleveland power "to do whatsoever else" they "may
deem necessary to secure and advance the interests of the city
in tlie premises," cannot be held to enlarge the circle of the
Dec. 1865.] Cmr of Cleveland v. State Bank. 451
Bpecific powers before conferred. The phrase 'Mn the prem-
ises " is one of limitation, and is substantially equivalent to
•'in the things premised," or "in the matters aforesaid." It
limits the discretion conferred to the manner of exercising the
powers specifically granted.
These conclusions are confirmed by the fact that the statute
referred to does expressly authorize the commissioners "to
exchange " the shares of stock held by the city for the out-
standing evidences of indebtedness issued by the city in order
to raise the means with which to pay up its stock subscrip-
tions in the first place; for it shows that the draughtsman
of the act knew and recognized the distinction between a sale
and an exchange, and that where he meant an exchange he
said exchange.
The commissioners of the city, then, had no power to make
the contract of exchange which they assumed to make; and
the powers of the commissioners being derived solely from a
public legislative act, those who dealt with them, or who claim
under them directly or remotely, were bound to take notice of
the extent of those powers; and the city is not estopped to
deny the existence of the power assumed. The contract of
exchange is void for want of power in the commissioners to
make it.
This is conclusive of the case; and we might, with no im«
propriety, stop here. But the second question considered by
the court leads to the same result. The district court find as
a matter of fact, in substance, that the so-called contract for
an exchange of stocks was obtained from the commissioners
of the city of Cleveland by false and fraudulent representa-
tions made to them in the course of the negotiation by one
McMillen, acting in behalf of the Cleveland, Zanesville, and
Cincinnati Railroad Company. McMillen took to himself an
assignment of the stocks thus fraudulently acquired. As
against him, the contract was null by reason of his fraud in
obtaining it. He subsequently assigned the stocks to the
Bank of Akron, simply as collateral security for a pre-existing
indebtedness of McMillen to that bank, and not contracted in
any way on the faith of such security. On the principles de-
cided by this court in Roxhorough v. Mesticky 6 Ohio St. 448
[67 Am. Dec. 846], this assignment conferred on the Bank of
Akron no better title than McMillen had; and the State Bank
of Ohio, succeeding as it does under the statute simply ta
452 BuTLBB V. PscK. [Ohio^
the rights of the now defunct Bank of Akron, stands in its
shoes.
Decree for plaintiff.
Scott, C. J., and Day, White, and Welch, J J., concnrred.
ASSIGNEB OF KbGOTIABLB PaPKB AS COLLATXBAL SbOUBTTT VOB PBa-EXUV*
iNo Debt is not holder for valne in the nmial course of trade, and takes sab-
ject to all equities ezistlng at the time of the assignment: JSuddkk v. Lloyd,
83 Am. Dec 423, and note 425. The principal case is cited to the point that
when a debt is created without any stipulation for further security, and the
debtor afterwards, without any obligation to do so, voluntarily transfers a
negotiable instrument to secure the pre<-ezisting debt, and both parties are
left, in respect to the pre-existing debt, in statu quo, no new con8ideration«
stipulation for delay, or credit being given, or right parted with by the cred-
itor, he is not a holder of the coUat^al for value in the usual course of trader
and receives it subject to all the equities existing against it at the time of the
transfer: FiUs v. Fogebong, 37 Ohio St. 680.
Persons Dealing with Ofticbrs Aomro ukdeb Naked Statotobt
Power must see that statute is complied with: /Tcsane v. Oannovanf 82 Am.
Dec. 738; Mayor etc qf Baltimore v. Porter, 79 Id. 686; PeterAiay v. Mapfin,
66 Id. 601.
BUTLEB V. PbOK.
[16 Ohio State, 88&.J
One of Two Adjacent Paboels or Land hnxQ Lowkb ibak Otho
owes to the upper parcel a servitude to receive the water which naturally
runs from it; but the industry of man cannot be used to create the ser-
vitude.
Owner of Land hayino upon It Mabsht Basin of Water, from which
in times of high water a portion overflows and runs through a natoral
channel upon the lands of another, while the remaining portion has no
natural outlet, but continues in the basin until it evaporates, cannot law-
fully conduct such remaining portion out of the basin by means of an
artificial drain constructed along the natural channel so as to cause it to
flow upon the lands of the lower proprietor.
Action for damages. Judgment for the plaintiff and error
assigned by the defendant. The opinion states the case.
(7. W. Johnson, for the plaintiff in error.
W, W. Boyntonj for the defendant in error.
By Conrt, Brineerhoff, J. In the court below, the defend*
ant in error brought his action against the plaintiff in error,
and in his petition alleges, in substance, that he is the owner
of a tract of land in said county, and in the petition described;
and that the defendant below is the owner of another tract.
Dec. 1865.] Bittlbb v. PaoK. 468
near to but not adjoimng the same; that on the tract of the
defendant below there was ^^a low, marshy sink or pond, usu-
ally filled with a large quantity of water, which, before the
committing of the grievances " afterwards therein complained
of, '^ran in a northwesterly course, away from and not upon
the lands of the plaintifi*" below. And that the defendant be-
low had wrongfully dug a ditch upon his own land, by means
of which large quantities of water were caused to flow out of
said marsh, sink, and pond, ^4n a contrary direction to its
usual natural flow and course," upon the lands of the plaintiff
below, to his great damage, etc., for which he prays judg-
ment.
The answer of the defendant below amounts to a general
and special denial of the material allegations of the petition.
At the January term, 1863, the case was tried to a jury, and
verdict rendered for the plaintiff below. On the trial, a bill of
exceptions was taken, and is as follows: —
'^Be it remembered that on the trial of this case, in the
court of common pleas within and for the county of Lorain
and state of Ohio, at the January term thereof, 1863, evidence
had been given tending to show that upon the land of the de-
fendant, which was near to but not adjoining the lands of the
plaintiff, there was a low, wet, and swampy marsh or basin,
which extended over and covered some five or six acres of
land, and upon which, at certain seasons of the year, water
stood to a great depth, and it at other times stood to the depth
of from one to six inches, imtil it passed off through its natu-
ral outlet, or till it evaporated away and passed off by perco-
lation through the soil; that the natural outlets would not, of
themselves, take all of the water off from said low, wet, marshy
piece of land or basin, but that a portion thereof, from one to
six inches deep over said tract, would remain thereon, and
pass off by evaporation and percolation through the soil; that
on the north side of this wet piece of land or basin there is a
small ridge, across which, through a settle or sog, swale or
outlet, the water which accumulated on said low, wet piece of
land or basin passed off in a northwesterly direction, over the
surface, across the lower end of defendant's land, onto the
land of one Mathias Diedrick, and from thence onto the land
of the jilaintiff; that the water also, in very high times, broke
out of said basin, and passed in a northeasterly direction
around the end of said ridge, and thence came back upon the
^land of the defendant, and passed off, over the surface, in a
464 BuTLBB V. Peck. [Ohio,
northwesterly direction as aforesaid, onto the land of the
said Mathias Diedrick, and across the land of the plaintiff;
that the general surfEtce drainage of seyeral hundred acres of
land, including that of the defendant, was in a northwesterly
direction across the lands of the aforesaid Diedrick and plain-
tiff, and from thence into a large creek, known as Centre
Creek, which crosses the land of the said Diedrick and plain-
tiff, and which passed off in a northwesterly direction into
Lake Erie; that along the aforesaid settle, sog, or low place,
which crossed said ridge and conducted said water from said
low, wet, swampy piece of land as aforesaid, said defendant
dug a ditch some nine years ago, and in the year 1859,
widened, deepened, and extended the same clear up through
this low and wet piece, and also cut several collateral ditches,
which brought all the water from this low, wet piece of land
into the main ditch, so that all the water that accumulated
on this low, wet piece was carried down this ditch to within
twenty or twenty-five rods of defendant's north line, where
said ditch terminated, and the water was discharged upon
the surface of said defendant's land, and left to seek its own
natural flow and course over the surface; and that the water
which passed down said ditch did pass, in its natural flow
and course, over the surface in a northwesterly direction,
across the lower end of defendant's land and onto the land
of Mathias Diedrick, and bom thence on the land of the plain-
tiff.
''And much other evidence was offered in the case, where-
upon the parties rested; and the court charged the jury, among
other things, that 'if you find that the defendant's land ad-
joining the lands of the plaintiff was wet, swampy land, upon
the surface of which water naturally accumulated, and that
the water thus accumulating upon the lands of the defendant
naturally flowed through natural channels, or by the natural
flow of the water over the surfSace of defendant's land, or by
percolating through it, passed on the land of plaintiff, we hold,
and 60 instruct you, that for the purpose of improving his own
farm, the defendant had the right to improve the natural
channels and watercourses upon his own land, conveying the
water off in the same general direction it formerly passed off;
and if no damage was done to the plaintiff thereby, he might
lawfully gather together in one channel the water usually
passing off in several channels; and the fact that some water
would thus pass off on the plaintiff's land, by reason of the
Dec. 1865.] Butler v. Pbck. 466
improved channels, that without the improvements would
have evaporated on defendant's land, would not alter the case
or make the defendant liable; the principle being this: that
a man may lawfully use and improve his property without
being liable for damages for availing himself of its natural
advantages and position. But I think a party cannot safely
go any further than above indicated. Has the defendant done
more? He says he has not; the plaintiff says he has; you
must decide the facts in the case. While each party may
avail himself of the natural position and capabilities of his
own land, he cannot insist upon compelling the other to change
places with him; and if you find in this case the fads to be
Ihat there was a pond or basin upon the defendants land which
had not an outlet, and in which the waters accumulating re*
mained untU evaporated, or that the waters of such pond or boMn
passed off through another channely and in a different direction,
and in either case the defendant, by the construction of his ditch,
has conveyed onto the land of the plaintiff water which would
either have remained on the defendants land untU evaporated, or
jwhich would have, but for the ditch, passed off by a different
channel or watercourse, the defendant is UahU; for he has no
right, by the corhstruction of new channels, to throw onto the
plaintiff water that wotdd not have gone there with^out. Unless
all of the water which now passes through the new channels onto
the plaintiff^s land would have passed through the natural chan-
nels from the defendant's land onto that of the plaintiff, the plain-
Hff is entitled to recover. If you should find tJuit the natural
€uilet of this basin is as the defendant claims, or if you should
find that the water did pass out of it in a northwesterly direc-
tion, but that it immediately cam^e bach upon the lands of the de-
fendant, and passed upon the land of the plaintiff at the point
where it now does, or substarUially so, you will find for the defend-
ant; but if you find that after natural otUlets had ceased to carry
off the water, there stiU remained a basin covering several acres,
07f which water stood to the depth of one, two, or three inches, or
more, which would not have passed upon the land of the plaintiff
hoi for this improved channel, the plaintiff is entitled to recover.^ "
To which charge the defendant, Butler, excepted.
The latter part of this charge to the jury, and appearing
above in italics, is claimed to have been erroneous, and on
that ground a reversal of the judgment is sought in this pro-
ceeding.
The question thus presented is a novel one in the courts of
466 BuTLBB 9. Pbok. [Ohio,
this state, and is both interesting and important; and the more
so from the prospect that improved methods of culture, in con-
nection with drainage, public and private, will make questions
akin to this much more frequent hereafter than they have been
heretofore. And these considerations, too, afford somewhat of
temptation to the court to indulge in what would be obiter
dicta, — the laying down of general rules for the government
of the hypothetical cases likely to arise out of the drainage,
with a view to improvement in agriculture, which is now be-
coming frequent and extensive in our state. But such an
attempt to forecast and anticipate the future would, we think,
be unsafe, and therefore unwise; and so we confine ourselves
strictly to the decision of the question made by the record
under review.
The priQciple seems to be established and indisputable that
where two parcels of land belonging to different owners lie
adjacent to each other, and one parcel lies lower than the other,
the lower one owes a servitude to the upper, to receive the
water which naturally runs from it, provided the industry of
man has not been used to create the servitude; or in other
words, more familiar to the students of the common law, the
owner of the upper parcel of land has a natural easement in
the lower parcel, to the extent of the natural flow of water
from the upper parcel to and upon the lower. But to what
extent, if any, the owner of the upper parcel may gather and
concentrate, by artificial means, the waters which fall upon
or originate on his parcel, and send them upon the lower par-
cel, and how far a due regard to the great interests of agri-
culture and the policy of our legislation will authorize the
owner of the upper parcel to go in facilitating, hastening, and
to some extent temporarily increasing the flow of water from
the upper to the lower estate, are questions not involved in the
record under review before us, and which we do not assume to
decide. We leave them to be decided as they may arise, with
the help of lights to be developed in the mean time from ad-
judications elsewhere, and from the modifications, if any such
there shall be, of the legislative policy of the state.
The sole question made by that part of the charge to the
jury which is complained of is this: Whether an owner of land
having upon it a marshy sink or basin of water, which basin,
as to a considerable portion of the water which collects within
it, has no natural outlet, may lawfully throw such water by
artificial drains upon the lands of an adjacent proprietor
Dec. 1865.] Butleb v. Ppck. 46T
We are clear that no such right exists. It would sanction the
creation by artificial means of a servitude which nature has
denied. The natural easement arises out of the relative alti-
tudes of adjacent surfaces as nature made them, and these
altitudes may not be artificially changed to the damage of an
adjacent proprietor. And it makes no difference that in the
hypothetical case on which the charge of the court below com-
plained of is based, in times of high water a portion of the
waters of the basin would overflow its rim, and find their way
along a natural swale to and upon the lands of the plaintiff
below; for as to those waters which naturally could not sur-
mount nor penetrate the rim of the basin, but were compelled
to pass off by evaporation or remain where they were, the case
is the same as if the basin had no outlet whatever.
The subject, generally, will be found discussed in Washburn
on Easements, 353 et seq.; Kauffman v. Griesemerj 26 Pa. St.
407 [67 Am. Dec. 437] ; Martin v. Riddle, 26 Id. 416, note;
MaHin v. Jett, 12 La. 601 [32 Am. Dec. 120].
Judgment affirmed.
Scott, C. J., and Day, White, and Welch, JJ., concurred.
Uffxb Ebtatb is Bhtiflxd to Natural Sxbvituds itpoii Lowib
EsTATX for pniposes of drainage: Hooper y. WilUnMnt 77 Aip. Deo. 194» and
note 196; Earl ▼. De Hart, 72 Id. 395, and note 402; bat in exercising this
servitnde, the npper proprietor has no right to add thereto a body of water
which, if left to its natural coarse, woald not have foond its way to the lower
estate: Barrow ▼. Landry, 77 Id. 199; Kauffman ▼. Orieaemer, 67 Id. 437; and
see the cases and notes referred to in the note to this case 442. The prin-
cipal case is cited to the point that the owner of the apper or dominant estate
has a natural easement or servitude in the lower or servient one to discharge
all waters falling or accumulating upon his land, which is higher, upon or
over the land of the servient owner as in a state of nature; and that such
natural flow or passage of the water cannot be interrupted or prevented by
the servient owner to the detriment or injury of the estate of the dominant
or any other proprietor: Hoyt v. Oitjf qf Hudson, 27 Wis. 669; Bamwdale v.
FooU, 55 Id. 560; Ogbum v. Connor, 46 Gal. 351. Thus an owner of land has
no right to erect an embankment, and thereby stop the natural flow of sur-
face water or divert its course so as to throw it upon the land of his neighbor.
And overflowed water from a river in time of flood is surface water within the
meaning of this rule: Shane v. Kanaaa City etc. R. B. Co,, 71 Mo. 237, citing
the principal case at pages 245, 248. Nor, where the situation of two adjoin-
ing fields is such that the surface water from rains and melting snows flows
naturally from one field upon the other, can the owner of the upper field con-
struct drains or trenches so as to concentrate the flow of water upon the
lower field, and increase the wash upon the land. The right of the owner of
an upper field to make drains on his own land is restricted to such as are
458 Bbobst «. Skillen. [Ohioi
required by good hnsbaadiy and the proper impravvmeiit cf Hbo turCMe ol
the ground, and u maybe discharged into natnral ohanneli without failioting
palpable and nnneoeuary injury on a lower field of en adjaoent owner: SfVm-
plet(m V. Voehloe, 72 Ind. 137.
Bbobst v. Skillen.
[16 OHIO 8TATB, 882i]
8EXBZff AND HIS SUBITIBS ABB LlABLB OH HIS OmCIAL BOHD for a
breach of official duty occurring after the expiration of hie term of office;
as where in his official capacity he receiyes dnring his official term notes
for part of the pnrchase-money of land sold on partition, and after his
official term refuses to deliver them to the proper parties, bat oonverts
them to his own nse by collecting the money due on them and surren-
dering them to the maker.
Mbasubb of Damages in AcnoN on Shkeuvt's Bond fob Convebsion of
Notes received by him in his official capacity is the valne of the notes,
and it cannot be urged in mitigation, even by the sureties, that the plain-
tiff may still resort to the maker for payment^ the collection and surren-
der of the notes by the sheriff having been unauthorised.
Shbbiff and his Sureties in Action on his OfncxiL Bond abb Liablb
FOB All Monet he may return as received from a sale, though it may
exceed the amount that the purchaser was required by the terms of the
sale to pay in cash.
Action upon a sheriff's bond against Skillen as sheriff, and
(be other defendants as sureties, to recover for money Nid
securities received by Skillen in his official capacity, and to
which the plaintiffs were entitled, but for which he refused to
account. The case was submitted on the petition and an
agreed statement. It appeared that in a partition suit, in
which the present plaintiffs were defendants, an order of sale
of the premises was made, and they were sold by Skillen as
sheriff for $701, — the terms of the sale being one third in
cash, one third in one year, and the remainder in two years
from the day of the sale, the deferred payments to bear inter-
est, and to be secured by mortgage on the premises. In his
report on the order of sale, however, the sheriff states that he
received $401 of the purchase-money, which was more than one
third, and considerably over one half, of the purchase price of
the land. The court afterwards approved the proceedings,
confirmed the sale, and ordered the sheriff to execute a deed
to the purchaser, and after paying costs, to distribute the pro-
ceeds of the sale to the several parties according to their re-
spective interests. The sheriff, Skillen, executed and delivered
the deed to the purchaser, and took from him notes payable
Dec. 1865.] Bbobst v. Skillbk. 489
to the several parties for their respective shares of the three
hundred dollars of the purchase-money remaining unpaid, and
a mortgage on the premises to secure the notes, also executed
to these parties. Prior to the delivery of these notes, the pur-
chaser had paid the sheriff $141, besides the $401 returned by
him as received; and of this sum no account was taken in
making the notes. After the expiration of the sheriff's term
of office, the plaintiffs made a demand upon him for their
notes and their respective shares of the money. But he re-
fused to comply with this demand; the fact being that, after
the expiration of his official term, he had received, including
the $141, full payment of the notes, and had surrendered
them to the purchaser of the land as paid. It was admitted
that the defendant Skillen was insolvent. The defendants
claimed to be liable only for the plaintiffs' share of the one
third required by the terms of the sale to be paid in cash.
The court gave judgment for the plaintiffs for their propor-
tion of the $401, acknowledged by the sheriff in his report to
have been received, and for no more. The plaintiffs assigned
error.
James Murray^ for the plaintiffs in error.
Mathers and CumminSy for the defendants in error.
By Court, White, J. The statute provides that the official
bond of a sheriff shall be conditioned for the faithful discharge
of his duties; and the bond in the present case is in conform-
ity with the statute.
The first question is, Was the collection of the money due
on the notes, and their surrender by the sheriff, a breach of his
official duty?
That he received them in his official capacity is clear. As
sheriff he n^ade the sale, and it was his duty to see that the
purchaser complied with its terms. On his return, the sale
was confirmed; and as a necessary consequence, he was or-
dered by the court to make to the purchaser a deed, and to
distribute the proceeds of sale to the several parties entitled
thereto. True, the notes were payable to the parties; but the
notes as well as the money were delivered to him as the con-
sideration for the premises sold, for the benefit of the parties,
in lieu of the estate of which they had been divested by the
sale. He thus became the custodian of the notes in his official
capacity, and his liability as such would continue until he
460 Bbobbt v. Skillen. [Ohio,
either delivered them to the proper parties or was in Bome
other mode relieved of his responsibility.
Did his liability cease with his term of office?
Certainly not. The duty of holding and properly disposing
of the notes and money was an official duty devolved on him
by law while in office, and though his term ended, the duty
continued until discharged. His subsequent unauthorized col-
lection of the notes, and the surrender of them to the maker,
was a breach of this duty. It was the wrongful conversion of
the securities to his own use, for which an action in the nature
of trover might have been maintained against him separately,
or for which he and his sureties may be sued on his bond.
The security furnished to the public by the bond is co-exten-
sive with the duties imposed by law upon the sheriff; and in
addition to the personal responsibility of the officer is the
indemnity provided by law for the protection of the public
against official misconduct. The bond is not designed to and
does not furnish the measure of the officer's official liabilityi
but is an undertaking, in its nature collateral, that the obli-
gors will respond to the party injured to the full amount of
such liability as may be incurred by the principal: See King,
Caryy and Howe v. NichoUy 16 Ohio St. 80.
The next question is as to the measure of damages.
The counsel of the defendants claim that the damages
should be only nominal, for the reason that the plaintiffs, as
the collection and surrender of the notes were unauthorissed,
could still resort to the maker for payment.
Upon ordinary principles, it is no answer to a demand for
damages founded upon the unlawful conversion of property
that the plaintiff has the right to reclaim it &om those to
whom it has been wrongfully disposed of. Nor could the de-
fendant Skillen, in an action against him for the conversion
of the notes, have mitigated the damages by the fact that the
plaintiffs could still collect their debt from the maker of the
notes.
The measure of damages in this respect is not different
where he is sued on his bond for the tortious conversion of
property to his own use, and where, as in this case, such con-
version constitutes a breach of the bond. Nor can the fact
that some of the obligors are sureties be allowed to vary the
rule; for the measure of damages arising from breaches of the
bond is necessarily the same against all the obligors.
In trover, the measure of damages for the conversion of a
Dec. 1865.] Bbobst v. Skillen. 461
chose in action, as a bfll, note, bond, or other secnrity for the
payment of money, is the amount collectible thereon. Prima
facte the measure of damages is the amount due on the se-
curity, the defendant being at liberty to reduce that valuation
by evidence showing payment, insolvency of the maker, or
any fact tending to invalidate the security: Sedgwick on
Damages, p. 488; 2 Greenl. Ev., sees. 276, 649; Mercer v.
Jones, 3 Camp. 477; Romi^s AdmW v. Romig, 2 Rawle, 241;
O^Donoghue v. Corby, 22 Mo. 394; Menkens v. Menlena, 28 Id.
252.
We see nothing in the present case to take it out of this
rule.
The notes were the property of the plaintiffs, and worth
their face; the defendant Skillen, in violation of a duty de-
volved on him by virtue of his office, converted them to his
own use; for this conversion the plaintiffs have brought their
action on his bond; and as between the parties to the suit,
we see no reason why the plaintiffs should not recover full
damages. The equities, if any, that may exist or arise be-
tween the sureties and the purchaser we are not called on to
consider.
As the judgment must be reversed, it is necessary to deter-
mine whether the defendants are liable for the $401 paid on
the day of sale, as that question affects the amount of the
judgment to be rendered.
They claim to be liable only for the one third of the pur-
chase-money required by the terms of sale to be paid in cash.
In the absence of an order of the court requiring the sale to
be for cash, one third of the purchase-money is payable on
the day of sale, and the balance in two annual installments,
with interest.
The object of the statute is, not to provide a mode of in
vestment for the benefit of the parties to the partition, but U
encourage bidders, and thus effect a better sale of the property.
If the purchaser should elect, after the sale, to pay all the pur-
chase-money in hand to the sheriff, and on report of the fact
the court should confirm the sale, there can be no doubt that
the sale would be valid, and the sheriff and his sureties liable
on his bond for the money. The fact that the property would
have sold for more, or as much, for cash down as if sold on
time, would have been a good cause for ordering the sale to
be made for cash in the first instance.
The opinion of the common pleas, allowing the plaintiffs to
462 Bbobst v. Skillen. [Ohio.
recover their shares of the money returned by the sheriff on
the order of sale, was correct.
But for the reasons abready stated) the judgment of the
district court and of the court of common pleas will be re-
versed; and judgment may be entered in this court in favor
of the plaintiffSi in accordance with this opinion.
Scott, C. J., and Day, Wbloh, and Bbinkbbhoff, JJ., con-
curred.
LlABnJTT 09 SUBBTIXS 09 ShKBIIV IOB OOHVEBSKnT, A9TBB BXPXBAXKHI
or Tbbm, of moneyB collected by virtae of prooees zeoeived by him dnzing
his term: See note to CammomoeaUk ▼. CoU, 46 Am. Dea 611, 612; Tpree t.
Wilaon, 68 Id. 213, and note 217; JEZHn ▼. People, 36 Id. 641; Oolier ▼. Big*
ginSf 86 Id. 601. Anthority of aherifif after the expiration of his term ol
office: See People ▼. Boring, 68 Id. 331, and note 338; CW|yer ▼. BiggiiUf
eupra; Tyree ▼. Wilson, 68 Id. 213, and note 216^ citing tiie prior caaee. The
principal case is cited to the point that where money is reoeiyed by a sheriff
in his official capacity, the duty of holding and properly disposing of it is an
official duty devolved* on him by law while in office, and though his term
ends, the dnty continnes nntil disdu^jged: Sidner ▼. Alexander, 31 Ohio Stt
884; Cahfin v. Bruen, 39 Id. 614. The case of Ghiffm v. Underwood, 16 Id.
389, was in aU respects similar to the principal case, except that the de-
fendant Underwood, the principal in the bond, took the notes and mortgege
in his own name as sheriff; and during his term of office, and before the last
note became due, surrendered it to the maker for a sum less than its face, and
released the mortgage given to secure the same. It was said: "The fact that
the sheriff choee to take the securities in his own name does not alter his
liability from what it would have been if he had taken them in the names ol
the parties to whom they belonged. He received the securities officially, for
the parties, in lieu of their interests in the land of which they had been dU
vested, and the same as he received the money paid in hand. His oonversion
of the note to his own use was a breach of Ids bond; and the plaintiffii are^
upon the principles on which BrobeC v. Shillen was decided, entitled to recover
from him and his sureties the value of their interest in the security con-
verted." So in Preston v. Chmpton, 30 Id. 307, it was held, citing the prin-
cipal case, that proceedings in partition, resulting in a sale of the land, charge
the purchaser with notice that the securities taken by the sheriff from the
purchaser for the deferred payments are trust funds, and the purchaser is
required to see that the purdiase-money is properly applied; and whether
the securities were taken in the name of the parties severally or in the name
of the sheriff the rule would be the same.
Measubb 09 Dakaobs nr Tbovkb iob Notbs ob Othsr Cbosv or As^
TioN, executed by persona other than the defendant^ is the valno of tiM prop*
erty which is prima fade the amount due: BMina v. Padxard^ 76 Am. Deo.
134.
OASES
m TKB
SUPEEME COURT
or
OREGON.
Swift v. Stabk.
[2 0SX002I» 97.]
JVDQMKNT IUnDKBXD IN NeW ToRK UNDSR JotNT-DBBTOB AOT OV THAS
Star will have the same effect in another state, hy virtue of the consti-
tation of the United States and the act of Congress of 1790, as hy law
and usage it has in New York; and a defendant who was served with
process, and appeared in the original action, cannot go behind the judg-
ment and^e::amine into the original cause of action in an action on the
judgment in another state, though as against the joint debtors not served
or appearing the judgment is merely prima /ade evidence of indebted-
Action by Swift, Hurlburt, & Co. in form against B. Stark
and E. S. Sherman and J. S. Sherman, upon a judgment ren-
dered in favor of the plaintiffs and against the defendants in
the state of New York. The Shermans, being non-residents,
and not having been served with process, did not appear; and
Stark alone appeared, and filed his separate answer, upon
which the case was tried, and verdict rendered for the plain-
tiffs, and against Stark. And Stark's motions for a new trial,
etc., having been overruled, judgment was rendered in form
against the joint property of all the defendants and the sepa*
rate property of Stark; whereupon Stark appealed. The judg*
ment of the New York court was rendered under the statute
of that state known as the "joint-debtors' act." The suit be-
ing brought upon the joint promissory notes of the defendants,
Stark was served with process in that suit, and appeared by
attorney in the action; and the Shermans were not served, and
did not appear.
464 Swift v. Stark. [OiegKm,
A. E. Waitf for the appellant.
/. H. Mitchell^ for the respondents.
»
By Court, Prim, C. J. There are numerous assignments of
«rror, but the main question presented by this record is, what
force and effect a judgment rendered in form in New York on
a joint liability under their joint-debtor act is to have on a
party in this state who was served with process and appeared
by attorney in the action. The statute of New York referred
to is: "If the action be against defendants jointly indebted
upon contract, the plaintiffs .may proceed against the defend-
ants served, unless the court otherwise direct; and if he recover
judgment, it may be entered against all the defendants jointly
indebted, so far only as that it may be enforced against the
joint property of all, and the separate property of the defend-
ants served."
By examination of the adjudicated cases in New York
under this law, we find it is held that the original contract is
merged in and extinguished by the judgment; and that the
judgment is valid and binding on the absent defendants as
prima facie evidence of a debt, reserving to them the right to
enter again into the merits, and show that he should not have
been charged, if sued upon the judgment. But where the de-
fendant has been served with process, or voluntarily appeared
in the action, he is concluded from going behind the judgment
and controverting the original cause of action: Dando v. DoUy
2 Johns. 87; Bank of Columbia v. Newcomb^ 6 Id. 98; Taylor
V. Pettihonef 16 Id. 66; Carman v. Townaend^ 6 Wend. 206.
The constitution of the United States declares that '^fuU faith
and credit shall be given in each state to the public acts, rec-
ords, and judicial proceedings of every other state. And the
Congress may, by general laws, prescribe the manner in which
such arti?, records, and proceedings shall be proved, and the
effect thereof." By the act of May 26, 1790, Congress pre-
scribes: 1. The mode in which the judicial records of one
state shall be proved in the tribunals of another, to wit: "Thai
they shall be authenticated by a certificate of the clerk, under
the seal of the court, with a certificate of the presiding judge
that the clerk's attestation is in due form." 2. "And the
said records and judicial proceedings, authenticated as afore-
said, shall have such faith and credit given to them in every
•court within the United States as they have by law or usage
Sept 1864.] LowKSDALE v. Hunbaksb. 465
in the courts of the state from whence the said records are or
shall be taken."
Then, by the law and usage of New York, the judgment on
which this suit is founded was properly rendered in form
against all the defendants; that the original contract is merged
in and extinguished by the judgment; that the judgment is
valid and binding as prima facie evidence of a debt against
the Shermans in this state; but as they were not served with
process, and did not voluntarily appear in the action either
in person or by attorney, they had the right, in the court be-
low, to enter again into the merits, and show that they should
not have been charged; but not so as to Stark, who has had
his day in court, been served with process, and appeared by
his attorney in the court of New York, and there might have
made his defense, if he had one: Mills v. Duryea, 7 Cranch, 481;
D^Arcy v. Morris and Ketchum, 11 How. 165. The judgment
is then valid and binding on him in this state, and concludes
him from going behind it to examine into the original cause
of action. It is further claimed by appellant that the authen-
tication of the record from New York is defective, and there-
fore improperly admitted as evidence in the court below; but
on examination of the authentication, we think the act of
Congress heretofore mentioned is substantially complied with.
We think there is no substantial error, and the judgment is
affirmed,
JuBGniTT or SisTKR Statk has Samb Emcr nr Bvsrt Other Statb
as in state where it is rendered: Bank of North America v. Wheeler, 73
Am. Dec 683, and note 688; Suydam v. Barber, 75 Id. 264, and note 268;
Origin ▼. Biaion^ 81 Id. 233, note 234; LoMkrY. WedeoU, 82 Id. 404, and note
411^14.
LOWNSDALE V. HUNSAKEB.
[2 Obboom, lOLl
COHTBACT fOB SaLB OV CaTILB AT SfBGDIBD PBICB, WhIOH OOBTBICPLATBS
Dblivbbt at Futurb TDiB, and provides for a deduction from the
price if npon delivery any of the cattle be dead, is not a bill of sale, and
does not pass title, bnt is merely a contract to sell, and the vendee or his
assignee has no right to take possession of the cattle without the consent
of the vendor.
Action to recover the value of cattle and damages for the
unlawful taking thereof. Plaintiff, being the owner of a band
of cattle and horses, entered into the following contract with
Am. Dae. Vol. LXXXVm-W
466 LowNSDALE V. HuNSAEEB. [Oregon^
the defendant Hunsaker: <'It is agreed between J. P. O. Lowns-
dale, by his agent, Daniel H. Lownsdale, and Jacob T. Hun-
saker, as follows: Said J. P. O. Lownsdale hereby sells to said
J. T. Hunsaker hid band of cattle and Indian horses, specified
in an agreement between said J. P. O. Lownsdale and Willis
Jenkins, and dated August 10, 1861, which said agreement is
hereto attached, to be taken and considered as a part of this
contract; said cattle are to be delivered to said Hunsaker, in
Clickitat County, Washington Territory, as soon as practicable
after the navigation of the Columbia River is open from Wil-
lamette to the city of the Dalles. Upon the delivery of said
cattle, or as soon thereafter as practicable, said Hunsaker
agrees to pay said J. P. O. Lownsdale, or his said agent, for
said cattle and horses, at the banking house of Ladd and Til-
ton in Portland, the sum of six thousand five hundred dollars.
It is further agreed that if upon the delivery of said cattle
and horses any of them shall be dead or missing, so that they
cannot be delivered, or any shall be unable to get up and
walk, that said Lownsdale, for each one so dead, missing, or
disabled, shall from said sum of six thousand five hundred
dollars purchase-money make deductions as follows: For all
cattle (except bulls and calves), $15.54 per head; for all
bulls, fifty dollars; the calves of the last and the present year
are to be taken by said Hunsaker as they are, but no account
is to be made of them in any way, either by way of increase
or decrease; for Indian horses or mares, forty dollars per
head. When said deductions are made, if any shall be
necessary as per this agreement, the balance of said six
thousand five hundred dollars shall be paid as aforesaid."
Hunsaker afterwards assigned all his right, title, and interest
in "the within contract, and the cattle and horses therein
conveyed to me," by indorsement on the instrument, to Messrs.
Hull, Masters, and Harbaugh, who claimed the cattle under
the contract, and assignment thereof to them, and took posses-
sion of a portion of the cattle without the consent of the plain-
tifi*; and this was the plaintiff's cause of action.
/. jET. Mitchell, for the appellants.
O, H, WUliamSy for the respondent.
By Court, Boise, J. One defense relied on by the appellants,
defendants, is, that this contract is a complete bill of sale of
the property named in it, and that by it the ownership and
title to the property became vested in Hunsaker at the time
Sept 1864.] LowNSDALE v. Hunsaker. 4G7
of its execution, and that he and those claiming under him
had a right to take the cattle and horses without the consent
of Lownsdale, and consequently it was no trespass for IIuu-
saker or those claiming under him to take them. The ques-
tion is therefore on the construction of this contract.
The court below held that the contract was not a bill of sale,
but a contract for a sale, and that by it the property did not pass
out of Lownsdale. This court is of the same opinion as was the
court below. I think it is clear from the terms of this contract
that if after its execution any of the cattle or horses named
in it had died, the loss would have fallen on Lownsdale; that
by the contract there was no delivery of the property, but that
delivery was contemplated at a future time. This was merely
a contract for jl sale, and if Lownsdale failed to comply, the
remedy of Hunsaker was by suit on the contract. There wer&
other questions raised in this case, but they are unimportant
Judgment affirmed.
Contract iob Sali or Cattu, what oonatitatei delivery therenii<ier»
and effect of contract witiioot deliTery : See WaUen ▼. Murdoek, 83 Am. Dee
136^ and note 142.
CASES
DT TEB
SUPREME COURT
or
PENNSYLVANIA.
N.
Buckley's Appeal.
ftf Pkxvkbtlvania Statb, 491.1
Obabtba Who Takki Dbed Expressly Subjectdto Lahd to PATXDiT of
JiTDGMSNT or other encnmbrauce eltibeisting against the grantor, and a
lien npon the land, makes the debt his -own as between himself and his
grantor, assuming it as a part of the purchase-money; and the payment
of the encumbrance will create no equity against a purchasA-moncy mort-
gage given to the grantor.
TvBcaABZR OF Laitd Who Ukdsbtakss to Pat Msohamics' Ldens Sctb-
8ISTINO upon Pbopeett acquires no equity, by the payment thereof,
to deduct the amount from the amount of the purchase-money mortgage,
since the payment of the liens is a part of the consideration of the sale.
RuLB ExGLUDina Parol Etidencb to Gonteadiot or Alter Writtbr
Lf 8TRUMSNT does not prevent giving parol evidence of a consideration
not mentioned in a deed, if it be not directly inconsistent with that ex-
pressed.
Parol Evidence is Admissible to Show that Consideratioh or Deed,
expressing a consideration of money and the payment of a judgment,
embraced also the payment of other encumbrances on the property, such
as mortgages and mechanics' liens.
Appeal by E. D. Backley, executor of Sarah Ann Buckley,
deceased, from a decree confirming the report of the auditor
appointed to distribute the proceeds of the sheriff's sale of the
real estate of James and Sarah Ann Buckley. It appeared
that James Buckley was the owner of a woolen-mill and lot
of land, which was sold at sheriff's sale to Pet0r Farnum for
$2,610. While Farnum owned the property, he gave a bond
to Caleb Hoopes, upon which judgment was entered; and he
also rebuilt the mill, and several mechanics' liens were en<-
46ft
1865.] Buckley's Appeal. 469
tered against it. Afiberwards, Peter Fanram conveyed the
property to Sarah Ann Buckley, wife of James Buckley, for
the consideration of $4,650, subject to the payment of $1,200,
the amount of tha judgment held by Caleb Hoopes against
Peter Farnum. After the delivery of the deed to Mrs. Buck-
ley, the following liens upon the property were entered, in the
order stated: A mortgage from Sarah Ann Buckley and James
Buckley to Peter Farnum for $2,430, which was stated to be
part of the purchase-money; a mortgage from the same parties
to William T. Fielis for $1,291.53; a mortgage from the same
parties to Peter Farnum to secure James Buckley's bond for
$2,220; a mortgage to William T. Fielis for $1,072. Mrs.
Buckley afterwards died, and this mill property was part of
her residuary estate. The property was sold under a judg-
ment upon the bond secured by the first mortgage, the one
given for the purchase-money, and in this way the fund for
distribution was raised. Out of this fund the holders of the
several hens all claimed payuient in full. It was agreed that
the mortgages of Fielis should be paid in full. But the claim
of Caleb Hoopes on the judgment for twelve hundred dollars,
and of the holders of the mechanics' liens, it was claimed,
should be set off against or paid out of the proceeds of the
purchase-money mortgage to Farnum, and not out of the gen-
eral proceeds of the property, on the principle that where bonds,
mortgages, or single bills are given for land sold, the debtor
may, when sued on such bonds, give in defense evidence
of liens and encumbrances existing at the time of the pur-
chase. J. Smith Futhey was then introduced as a witness
to prove that upon the sale of the mill to Mrs. Buckley she
agreed to pay the Hoopes judgment and the mechanics' liens.
The testimony of this witness was objected to, but the auditor
admitted it, overruling the objections. The witness testified
to negotiations in his office prior to the execution of the deed
from Farnum to Mrs. Buckley, the substance of which was
that the real consideration of the conveyance was the payment
of the mechanics' liens, the judgment to Hoopes, the mort-
gages of Fielis, and Farnum's two mortgages. The delivery
of the deed and mortgages was made at the same time, and
they were all entered by Mr. Futhey on the next day, in the
order agreed upon by the parties. The auditorreported that
all the liens should be paid out of the proceeds of the sale in
ftdl in the order of their priority, and that the residue of the
fund should be paid to the executor of Sarah Ann Buckley.
470 Buckley's Appeal. [Penn.
Exceptions were filed to so much of this report as awarded to
Peter Famuin the payment of his purchase-money mortgage
of two thousand four hundred dollars. The exceptions were
dismissed in the court below, and the report confirmed, where-
upon this appeal was taken.
John M. Arunddy for the appellant.
TF. Darlington^ for the appellee.
By Court, Stbono, J. In the distribution of the proceeds
of this sheriff's sale, the appellant was at liberty to show, if
he could, that the mortgage of Mrs. Buckley to Famum was
in equity paid, either in whole or in part, by the failure of the
consideration for which it was given. And this is what he
attempted to do. In order to show it, however, it was neces-
sary for him to make out that under her purchase from Far-
num, Mrs. Buckley was entitled to the property convoyed to
her unencumberd by any judgment or liens recovered against
her vendor. When she purchased, there was a judgment
against Famum for twelve hundred dollars, held by Caleb
Hoopes, but the deed conveyed the property to her expressly
subject to the payment of the judgment. It became a part of
the purchase-money by virtue of the express charge. Hence,
when she is called upon to pay it, or when it is paid out of the
land, there is no failure of consideration for her mortgage, for
she has lost nothing which she bargained for, and to secure
the payment for which her mortgage was given. Buying sub-
ject to the Hoopes judgment, she in effect bought only what
remained after the satisfaction of the judgment. It has been
repeatedly decided that he who purchases expressly subject
to an encumbrance as between his vendor and himself makes
the debt his own. At the very least, his taking the title
thus expressly charged constitutes an engagement on his
part to indemnify the vendor against the loss on account oi
the charge. Payment of the Hoopes judgment can therefore
give her no equity against her vendor, who was also her mort-
gagee.
Similar remarks may be made respecting the mechanics'
liens which were upon the property when the conveyance was
made. If the purchaser undertook to pay them, her payment
gives her no equity against Famum which justifies the deduc-
tion of the sum thus paid for her mortgage. Instead of prov-
ing a failure of any part of the consideration of her mortgagOi
1865.] Bucklst's Appeal. 471
it shows only that the payment of the liens was a part of the
consideration of the sale to her. This was distinctly proved
before the auditor.
But the appellant urges that it was error to receive such
proof. He contends that it cannot be shown by parol that
there was any other consideration for a conveyance than such
as is stated in the deed. To this we do not assent. The rule
excluding parol evidence to contradict or alter a written in-
strument does not prevent giving parol evidence of a con-
sideration not mentioned in a deed, if it be not directly
inconsistent with that expressed: Greenl. Ev., sees. 285, 804;
Heath v. Knapy 1 Pa. St. 486. There are, it is true, some old
cases that assert a contrary doctrine, but they are not sup-
ported by the modem authorities, and certainly they are not
correct exponents of our law. The subject was considerably
discussed by Judge Kennedy in Jack v. Dougherty^ 3 Watts,
151, where he referred to many decisions. See also Stravh
bridge v. Cartledge, 7 Watts & S. 394.
It follows from what has been said that the testimony of
J. Smith Futhey was correctly received, and that the excep-
tions taken by the appellant are not sustainable.
The decree of the court of common pleas is affirmed, with
costs.
What Ck>NSTrruTEa AssuiipnoN or Mortqaob bt Gka2ItsB| aud Effbot
or: See note to Klapworth v. Dressier, 73 Am. Dec. 72-M, where this subject
receives an extensive treatment; Strong v. CoftMrse, 85 Id. 732, and note 734.
Effect of a conveyance "subject to a mortgage*': See note to Klapworth v.
Dreasler, 78 Id. 82. An oral promise by the grantee to assume and pay a
mortgage is sufficient: Id. 84.
Consideration or Deed mat be Explained and Varied bt Paroli
OwfUpeed v. FuUer, 71 Am. Dec. 572, and note 578; Cobnan v. Post, 82 Id.
49; but see Timma v. Shannon, 81 Id. 632. The principal case is cited to the
point that though parol evidence may not be admitted to contradict or vaiy
a written instrument, it may be received to explain it, as when something is
omitted, and the like, so as to qualify the tribunal passing upon the writing
to interpret it truly according to the intent of the parties: BcUUmore etc
Steamboat Co, v. Drown, 54 Pa. St 82. Thus, in case of a written contract
setting forth a sale, parol evidence is admissible to prove what the considera-
tion was: Bowser v. Cravener, 56 Id. 139. In Lewis v. Day, 53 Iowa, 577»
however, it is held that where there exists a written contract for the sale of
real estato, parol evidence is inadmissible to show that the vendee agreed to
assume a mortgage upon tho property as a part of the purchase price; and ia
distinguishing the principal case it was said: " In Buckley*s Appeal, 48 Pa. St.
491, ^era is nothing tending to show there was a written oontraot. Hm
contrary, we think, clearly appears.'*
172 Keen v. Habtman. [Penn.
Thb pbinoipal oasb is cited alao to the pomt that asmimptU may be
nuuntained agauut a person taking land charged with the payment of money,
18 a means of enforoing payment oat of the land: De Hawn t. Barthohmem,
67 Pa. St. 12a
Keen u Habtman.
1 48 PlMVBTLVANLl 8TATI, 487.]
BUU THAT AonON MAT BB MaINTAINXD FOB FbAUD 0& ToBT OV MaB-
BIKD WoMAir against her and her hnsband applies only to torts ^mpUeUeTf
or torts pore and simole, and not to torts or firand the basis of whidh is
the wife's oontraot.
AonON DOBS NOT LiB AQAINST HuSBAND AND WlTB lOA HEB FaLSB AND
Fbauditlbnt Rbpbbsbntations to plaintiff that she was a feme aofe^
thereby indncing him to surrender to her promissory notes of a third
person in exchange for a bond and mortgage executed by her.
Case, by James S. Keen against John Hartman, Jr., and
Mary Ann Hartman, his wife. The opinion states the facts.
Iaiccls Hirst j W. L, Hint^ and F, C. Brewster ^ for the plain-
tiff in error.
John A. Owens^ for the defendants in error.
By Court, Btbong, J. This was an action of trespass upon
the case, in which the declaration averred that Mary Ann
Hartman, one of the defendants, had falsely, deceitfully, and
fraudulently represented to the plaintiff that she was a widow,
named Mary Ann Coleman, and that she was not a married
woman, when in truth she was not a widow, but had been
secretly married four days previously, to the other defendant.
The declaration further averred that by reason of this false
and deceitful Ptatement, the said Mary Ann had obtained from
the plaintiff promissory notes made by one George Moore,
which were the property of the plaintiff, and of great value,
and that the plaintiff delivered to her these promissory notes
in exchange for a bond and mortgage executed and delivered
by her as a widow and unmarried woman. At the trial, a
verdict was returned for the plaintiff, but the court arrested
judgment, being of opinion that such an action could not be
sustained. Herein it is insisted there was error.
It is no doubt a general principle that for the fraud or other
tort of a married woman an action may be maintained against
her and her. husband. At the same time, it is a principle
equally general that a wife is incapable of making a con«
tract that can be enforced in any manner against her. Hei
1865.] Keeit 17. Hartman. 473
disability, thongh Kke that of an infant, is even more com-
plete. These principles must both be maintained in the full
extent of their meaning. What, then, is their meaning as re-
lated to each other? Many torts are founded upon duties grow-
ing out of contracts. The practical effect of maintaining an
action for such torts is the same as would be that of maintain-
ing actions in form ex contractUj brought for the breach of the
contract themselves. But the disability, and consequent im-
munity, of a feme covert are substantial, and not formal. So
is it with an infant. Hence it has always been held that the
contract of neither can be enforced substantially by any form
of action; for if it could, the legal immunity would cease to be
a personal protection, and would exist or not, according to the
remedy which a plaintiff might choose to adopt. Necessarily,
therefore, the principle first stated is to be understood as ap-
plicable only to actions brought for wrongs done by the wife,
which are what are sometimes denominated torts eimpliciter;
in other words, torts the substantive basis of which is not the
wife's contract. It is essential to the maintenance of any ac-
tion for a tort that there be not only a wrongful act done by
the defendant, but an injury to the plaintiff. If the injury to
the plaintiff consist in his inability to realize what a feme covert
gave him reason to expect from her undertaking, it is not a
case of pure and simple tort. The real injury then flows
from her non-compliance with her engagement, and an action
to recover compensation for it, if maintainable, gives equal
effect to her contract, no matter in what form the action may
be brought, whether in form ex contractu or ex delicto. It
practically enforces it. It is not strange, therefore, that it was
early ruled that an infant is not liable for a false representa-
tion by which he induces a party to contract with him. This
was decided in Johnson v. Pye, 1 Sid. 258. The case is also
reported in 1 Lev. 169, and in 1 Keb. 913. And there can be
no distinction in this respect between the case of an infant and
that of a married woman. None is recognized. In Cooper v.
Witham, 1 Lev. 247, S. C, 1 Sid- 375, and 2 Keb. 399, we find
an action brought against a husband and wife, for that she
being covert, affirmed herself to be sole, and requested the
plaintiff to marry her, averring it to have been done mali-
ciously, and with intent to deceive the plaintiff, whereupon he
married her, whereby he was disturbed in conscience, and put
to great charge by the husband. It was held, on motion in
arrest of judgment, that the action would not lie, and the
474 Keen v. Habtman. [Penn.
ground of the decision was, that the matter upon which the
action was based '' sounded in contract." Precisely the same
doctrine was maintained in the modem case of Adelphi Loan
Association v. Fairhurstj 9 Ex. 422, a case not distinguishable
from the present. There it was ruled an action will not lie
against a husband and wife for a false and fraudulent repre-
sentation by the wife to the plaintiff that she was sole and un-
married at the time of her signing a promissory note as surety
to him for a third person, whereby the plaintiff was induced
to advance a sum of money to that person. The case was
fully argued, and decided after consideration and review of
the authorities. Pollock, C. B., in delivering the judgment of
the court, while admitting the general liability of the husband
and wife for her torts, said: " But when the fraud is directly
connected with the contract of the wife, and is the means of
effecting it, and parcel of the same transaction, the wife can-
not be responsible, and the husband be sued for it altogether
with the wife. If this were allowed, it is obvious the wife
would lose the protection which the law gives her against con-
tracts made by her during coverture,1ror there is not a contract
of any kind which a feme covert could make whilst she knew
her husband to be alive that could not be treated as a fraud.
For every such contract would involve in itself a representa-
tion of her capacity." In this state, no case has arisen until
the present in which this precise question has been deter-
mined, but the principle that governs the English cases has
been asserted and applied in actions for torts brought agaiast
infants. It was maintained, with much force of argument, by
Chief Justice Gibson, in Wilt v. Wehh^ 6 Watts, 9, and many
authorities were cited. It finds some support also in Penrose
v. Curren, 3 Rawle, 351 [24 Am. Dec. 356]. We have other
cases to the point that though an action may be in form as for
a tort, yet if the subject of it be based upon a contract, there
can be no recovery when an action on the contract directly
would fail, and this whether the defendant be an infant or au
adult.
In view of these authorities, and the reasons by which they
are sustained, we are brought to the conclusion that the pres-
ent plaintiff's action cannot be sustained, that no cause of ac-
tion was set forth in the declaration, and that it was right to
arrest the judgment upon the verdict.
It may seem hard that a person injured by the fraud of a
married woman, consummated through the agency of her con-
1865.] Miller v. Consolidation Bank. 475
tract, shoald be without civil remedy, but it is necessary to the
conservation of that protection which the htw throws over her
during her coverture again£t being bound by her contracts,
and the rule entails no more loss upon him than does his in-
ability to enforce her contract directly.
Judgment afBrmed.
Torts or Marrctp Wombm: See Ball ▼. Bennett, 83 Am. Dec. 356» and
note 358; BratU ▼. Moron, 83 Id. 772, and note 776-778, treating this sabject.
Where a married woman, by agreement signed only by herself, and without
an acknowledgment, contracted to seU land, receiTod one year's interest and
a part of the' purchase-money, and the purchaser took possession, and made
improvements with her knowledge and encouragement^ she could nevertheless
recover the land, and would not be prevented by the principle of estoppel or
compensation: OUdden v. Strupler, 62 Pa. St 400, citing the principal case.
So in case of the conveyance by a wife of her real estate, although she may
have expressed her satisfaction with the sale and received the purchase-money,
yet, if she has not acknowledged the deed in the manner directed by statute^
die is not estopped from asserting her previous title: Klein v. Caldwettf 91 Id.
144^ citing the principal case.
Miller v. Consolidation Bane.
[48 Pennsylvania Statb, 614.1
Cm Who is Member or Ssvx&al Firms mat Draw and Inimrsr Sams
Papxr as the representative of each; and this is no ground for suspicion
that his indorsement of the name of one firm is in bad faith to the other
as maker of the note.
Whbrb Partner in Two Firms Made and Indorsed, in Name or One
or Them, Note payable to its own order, and then indorsed the name
of the oUier firm, tiiere is nothing on the face of the paper to indicate
that the note was not drawn by the first firm in their usual course of
business in a partnership transaction with the second firm; and the bank
discounting it is not put upon notice as to the good faith of the common
partner in executing it by the mere fact that the note and indorsements
are all in his handwriting.
AssuMPsrr by the Consolidation Bank against A. C. Miller
and J. P. Persch, lately partners under the firm name of Mil-^
ler and Persch, upon a promissory note signed Miller and
Persch, payable to the order of Miller and Persch, and in-
dorsed Miller and Persch and Persch and Steeb. The de-
fendant Miller filed an affidavit of defense, averring that
neither he nor the firm of Miller and Persch received any
value for the note; that it was made and signed by Persch, at
that time a member of the firm of Miller and Persch, without
the knowledge, consent, or subsequent ratification of the affi-
476 Miller v. Consolidation Bank. [Penn.
ant, and was indorsed by Persch in the name of Miller and
Persch and Persch and Steeb, and taken by Persch to the
plaintiffs, who discounted it for Persch and Steeb, and carried
the amount to their credit, and the proceeds were drawn out
by the check of Persch in the name of Persch and Steeb, and
appropriated to his own use; that the plaintiffs were well
acquainted with the handwriting of Persch, and by that fact
were put upon notice that he was using the name of Mil^r
and Persch for his own use and benefit, or for that of the firm
of Persch and Steeb; that the note was not drawn in the
course of the partnership business; and under the partnership
agreement of Miller and Persch, Persch had no authority to
make or indorse any commercial paper in the firm name; and
the note was drawn and indorsed in fraud of the afiiant and
the firm of Miller and Persch, and was fraudulently negotiated
by Persch. Judgment for the plaintiffs was entered for want
of a sufficient affidavit of defense, and the defendant Miller
assigned error.
Heyevy for the plaintiff in error.
Thorn, for the defendants in error.
By Court, Agnew, J. The note in this case is to be received
as if drawn by Miller and Persch, payable to Persch and Steeb,
and indorsed by the latter to the bank. The affidavit of
defense upon which the question arises does not allege that
the bank discounted the note under any unusual circumstances,
or with any notice of the alleged fraudulent use of the name
of Miller and Persch for the individual benefit of each. The
only fact to show want of good faith is, that the note and in-
dorsement are in the handwriting of Persch, which was known
to the bank.
One who is a metnber of several firms has presumptively the
same power in each that his partners have. To say he cannot
draw and indorse the same paper as the representative of
different firms is simply to negative his power to act in the
second firm because he has acted in the first. Having in each
the power of a partner presumptively as to the public, and
acting in that apparent right, it is no ground of suspicion that
his indorsement of the name of one firm is in bad faith to the
other as makers of the note. The case of Tanner v. HaU, 1
Pa. St. 417, differs widely from this. There Hall drew his
separate note for his own accommodation to the order of
another firm, who indorsed it. Then he indorsed the name
Oct. 1864.] Sloat v. Rotal Insurance Ca 477
of his own firm, and procured it to be discounted. It was
held that the form of the note and the circumstances suffi-
ciently indicated to the bank that the note was for his indi-
vidual accommodation, and thus put the bank upon notice.
But here there is nothing out of the usual course of business,
and nothing on the face of the paper to indicate that the note
was not drawn by the firm of Miller and Persch, in their
usual course of business, in a partnership transaction with
Persch and Steeb. The bank, taking it of Persch and Steeb in
good faith, cannot be afiected by the naked fact that the hand-
writing of the note and of the indorsement was that of Persch,
the common partner.
The judgment is afiirmed.
Pabtzter mat Bnn> Fibm bt Nbootiablb Instrumsnt Dbawn nr Firm
Namr. The fact that a draft drawn by a firm is payable to the order of one
partner, and is indorsed by him, is not evidence that it was not drawn by the
firm in the nsnal coarse of business. It is presumed that it was so drawn,
and this presnmption is not affected by the fact that the paper was discounted
at the request of the partner who drew it in the name of the firm, and whose
name was inserted as payee, and who indorsed it and drew the proceeds.
Actual knowledge, however, that the draft was drawn without the consent
of certain partners is a good defense for the non-consenting partners: HaUU-
motn V. Batik cf Middletown, 70 Am. Dec. 142, aud note 145. The principal
case is cited to the point that one who is a member of several firms may
draw and indorse the same paper as the representative of each, and this fur-
nishea no ground of suspicion that his indorsement of the name of one firm is
in bad faith to another, or to the maker of the note: FreemarCB Naiionai Bank
V. Savery, 127 Mass. 80; Locke v. Lewis, 124 Id. 16; Moonhead v. Qilmore, 77
Pa. 8t 123.
Sloat v. Royal Insubanob Company,
[49 PRKHSTLVAMIA STATK, 14.]
DouBLR Ihsubargr Taxrs Placr when AflsuRRD Makes Two or Mori
IvsURAiTCis on the same subject, the same risk, and the same interest;
in case of such insurance, all the policies are considered as one, the in-
nrers are liable fro rata^ and are entitled to contribution to equalize
paymentB made on account of losses.
Wkmrr Onr Pouot or Irsurancr Covers Buildino only, and a subse-
qnent policy in another company covers the building, machinery, shaft-
ing, belting, tools, lathea, planea, driUs, and stock finished and unfinished,
it is not a caae of doable insurance, and does not come within the mean-
ing of % oUnao in the former policy prohibiting doable insarances without
AcnoN on a policy of insurance. Geoi^e B. Sloat, who was
ilie owner of a brick steam planing-mill, in which were certain
478 Bloat v. Royal Insubakcb Co. [Penn.
machinery, ehafting, belting, lathes, drills, and a quantity of
stock finished and unfinished, had effected insurances thereon
in six other companies besides the defendant company. In
the defendant company he had insured the building only for
two thousand dollars, the machinery, tools, shafting, beltings
lathes, and drills for four thousand dollars, and the stock only
for one thousand dollars. The total amount of insurance in
all the companies was twenty-three thousand dollars. A loss
by fire occurred to the property insured, as follows: On tho
building, $6,100.74; on the machinery, tools, etc., $16,624;
and on the stock, $4,160. In adjusting the loss, the defend-
ant claimed that the entire two thousand five hundred dollars
of the general insurance of the policy of the Philadelphia
Fire and life Insurance Company should be added to the
aggregate amount of all the specific insurances upon each of
the three classes of items mentioned in the policies of the de-
fendant company respectively, for the purpose of ascertaining
the ratable proportion payable on each of the three classes, so
as to give to the policy of the Philadelphia Fire and Life In-
surance Company, for the purpose of contribution, the effect
of an insurance of two thousand five hundred dollars on each
of the three classes. Under this claim, payments were made
by the defendant, which, for loss on the building, were $431.53
less than the plaintiff would be entitled to in case the court
should find in his favor. The court below rendered judgment
for the defendant, and the plaintiff took a certificate of error.
The other facts are stated in the opinion.
Joseph A. Clayy for the plaintiff in error.
Morton P. Henry^ for the defendant in error.
By Court, Read, J. ''Double insurance," says Amould,
" takes place when the assured makes two or more insurances
on the same subject, the same risk, and the same interest. If
there be double insurance, either simultaneously or by succes*
sive policies, in which priority of insurance is not provided
for, all are insurers and liable pro rata. All the policies are
considered as making out one policy, and therefore any one
insurer who pays more than his proportion may claim a con-
tribution from others who are liable. Fire policies usually
contain express and exact provisions on this subject."
The clause in the policy of the defendant is in these words:
'' Persons insuring property in this office must, when required,
give notice of any other insurance made elsewhere on the
Oct. 1864.] Sloat v. Royal Insurance Co. 479
same proj^erty on their behalf, and cause a minute or memo-
nndum of such other insurance to be indorsed on their poli-
cies; in which case this company shall only be liable to the
payment of a ratable proportion of any loss or damage which
may be sustained; and unless such notice be given, the in-
sured will not be entitled to any benefit." And the following
memorandum was made on each of the policies of the defend-
ants: '' Other insurances permitted without notice to this com-
pany until required."
The question arises on the two thousand dollars insured by
the Royal Insurance Company on the building only, and the
policy of the Philadelphia Fire and Life Insurance Company
for two thousand five hundred dollars, on building, machinery,
shafting, belting, tools, lathes, planes, drills, and stock, fin-
ished and unfinished, — was this a double insurance? The
case of Howard Ina. Co. of New York v. Scribner, 5 Hill, 298,
is a distinct authority that this is not a case of double insur-
ance. It was decided twenty-one years ago by the supreme
court of New York, then the highest judicial tribunal of the
state, and consisting of Chief Justice Nelson and justices
Bronson and Cowen, with an appeal, it is true, to the court of
errors under the old constitution. The present supreme courts
are simply local courts, like our courts of common pleas, ex-
cepting that each judicial district has four law judges. I can-
not find that this decision has ever been impugned or denied
by any judicial tribunal in the state of New York, and it is to
be remarked that it is an affirmance of a judgment of the
superior court of the city of New York. The first policy was
divided, one thousand dollars on fixtures and utensils and
three thousand dollars on stock. The second policy of the
MinsL company was for five thousand dollars on the fixtures
and stock as one parcel. Both policies contained a clause as
to the recovery of only a pro rata amount, similar to the
clause in the present case to warrant contribution. ^'We
want," said the court, '^ two other separate policies, or one in-
suring separate sums on each. The assured, however, took
only one policy, insuring an entiie sum on one parcel. The
subject was therefore different. In the first it was separate,
in the second compound; and such a difference may as well
be extended to fifty as to only two subjects. The several sub-
jects are found to be substantially different when an effort is
made to effect contribution. The counsel for both parties
agree that, in order to do so, the five thousand dollars must
480 Sloat v. Royal Insurance Co. [Pena.
be divided into two parts, one being applied to the fixtaroB
and the other to the stock. It is not denied that the division
must be entirely arbitrary; and the different methods pro-
posed by the parties best accord with their respective inter-
ests. Neither has cited any case where such a thing has been
done, nor mentioned any principle by which we should be au-
thorized thus to modify the contests of the parties."
With regard to the case of Harris v. Ohio Ins, Co,, 6 Ohio,
466, decided in 1832, the court say it ^'did not raise the ques-
tion of abatement or contribution. The first policy was de-
clared void because notice of the second was not given. It
comes out in the course of the opinion that one was on goods,
and the other on store and goods; but the latter might have
been for separate sums on each."
Mr. Phillips, in his third edition (1853) of his treatise on
the law of insurance, vol. 1, p. 203, No. 366, says, to consti-
tute double insurance, the insurances must be on the same
subject. After stating his views, he says: "Accordingly, I
cannot but doubt a decision in New York. It was a case of
insurance of one thousand dollars on fixtures and three thou-
sand dollars on stock in one policy, and then five thousand
dollars on fixtures and stock in another, without discrimi-
nating any proportion for each. It was adjudged that the
assured was entitled to recover on the full amount insured in
the latter without apportionment, though the amount in the
two exceeded the actual value, on the ground that the pre-
mium on the prior policy could not be apportioned between
the stock and fixtures. The court does not mean that no
estimate could be made of such an apportionment, for plainly
nothing is easier, but that they are precluded from making
it, — a notion derived from some of the early English prece-
dents."
It is singular that so accurate a writer should have mis-
fitated the case he was commenting upon, and of course his
conclusion is erroneous. The first policy on which the suit
was brought was dated November 25, 1836, and was the
divided policy; the second policy of the ^tna was dated the
4th of February, 1837, and was a compound policy, and was
not in suit at all. The first policy did not cover the loss, and
the decision was, that the assured could recover the whole sum
insured by it, as if the latter policy had never existed. In a
4rait therefor on the second policy, the assured would only have
Oct. 1864.] Sloat V, Royal Insurance Co. 481
recovered the amount of his loss, after deducting fhe amount
previously received from the first policy.
In the present case, there was no over-insurance, for the loss
exceeds the whole amount of all the policies. In Associated
Firemen^s Ins. Co. v. Assum, 5 Md. 165 (December term, 1853),
it was held, reversing the judgment of the supreme court of
Baltimore city upon a covenant that if the assured "shall
hereafter make any other insurance on the hereby insured
premises, he shall, with all reasonable diligence, notify the
same to this corporation, or in default thereof, this policy shall
cease and be of no effect"; that if any part of the goods men-
tioned in the policy was afterwards insured in any other office
without notice, the whole policy thereby becomes void.
In Simpson v. Pennsylvania Ins. Co.y 88 Pa. St. 250, what-
ever might have been the facts of the case, the question does
not appear to have been brought to the notice of the court for
its decision. In Hardy v. Union Mutual Fire Ins. Co., 4 Al-
len, 217, the case was decided upon the ground that the second
policy was invalid, and of course no question as to want of
notice of it arose. This case is in conformity to their former
decisions, and ours in Stacey v. Franklin Fire Ins. Co., 2 Watts
& 8. 506, but contrary to the doctrine held by the courts of
New York and the supreme court of the United States. The
case of McEwan v. Montgomery Co. Mut. Ins. Co.^ 5 Hill, 101^
has produced an alteration in the clause in New York, by pro-
viding that if insurance is effected covering the whole or any
portion of the property insured by the company, the policy
shall be void unless the company had notice Uiereof, and gave
a consent in writing thereto: Vose v. Hamilton Mutual Ins. Co.^
89 Barb. 302.
In the case before us, there is no over-insurance, — all the pol-
icies if paid will not pay the loss sustained by the assured; a
calculation, therefore, which will cut down the payments must
be based on erroneous principles. Upon the principle adopted
by the defendant, it is the same as if there were three policies
of two thousand five hundred dollars each, seven thousand five
hundred dollars, instead of one policy for two thousand dollars,
which clearly cannot be the law, as this is a mode adopted by
the insurance companies to reduce their own liability without
any foundation but their simple arbitrary will.
Under these circumstances, it appears to be the simplest and
most equitable mode to adopt the plain rule laid down by the
supreme court of New York, and to hold that it is not a case
Am. Dia Vol. LXXXVm— 81
482 North Penn. R. R. Co. v. Heileman. [Penn.
of doable insurancei and of course the clanse in question has
no application whatever.
Judgment reversed, and judgment entered on the case stated
for the plaintiff for $431.53, with interest.
DouBLi IziBURAircB: See Ndikmai Fire /ml (h, qf BaStHmom y. Cfnmt 77
Am. Deo. 289, note 205; ITa/tfy. MechcmM M. F, L Cb., 66 Id. 410^ note 413;
HMkihmmmY. Wegtemliu, Co., 64 Id. 218^ note 221; Oomoa^ Tool Co. t. Hui'
mm S^lna. Co., S9 Id. 172} Worcetier Bank y. HarifiudF.lna. Oo.,W Id, I45i
Burbank r, Sockhgham F. Ins, Oo.^ 67 Id. 300, note 306, where other oaeei
•re odlleoted; dark y. New BngUmd M. F. /m. (%»., 63 Id. 44^ note 63^ where
other oasee are collected. Where there is doahle insniance^ and the Ices os-
oeedfl the total insurance, there can he no apportionment^ bat eaoh insurer
mnst pay the full amonnt for Which he is liable: Boifol Ins. Ckk r, Roeder^ 78
Pa. St 22; Ldxaum M, L Co. t. Kqplert 106 Id. 87, both dtmg the principel
TsB PBDfGZPAL GASB 18 OOXD in AlRson T. Phoodx Ins. Gx, 8 DiH, 488^
bat to a point not decided in that case; and in Horns Ins. Oa. ▼. CfwcUhmei^f
35 Alb. L. J. 337 (Va. Sap. Ct., Feb., 1887), to the point that doaUe insur-
ance is an additional and valid insarance apon the same sabjeot^ risk, and ift*
terest effected by the same insaied, or for his benefit.
North Pennsylvania R R Co. v. Heilemak.
[49 PXNNSTLYAiriA STATI, 60.]
TbAYELXB on HiOKWAT AFFBOAOQOnrO m JSTEBSBCnXat wits T^ATr-^ftAifc
IB Booin> TO Look out for approaching trains, and his failnre to do so
is negligence^ and not merely evidence of negligence.
WhIBB PLAIlITIFr'a NbOUGSNCI GOITTBIBUTBS DXHSOXLT TO HIB HUBS^
he cannot recovery for the injary.
At InrBBSEcnoK ov Comkok Hkihwat Aim Bailboad^ thbbb abb Ocur-
oirBBBMT BiOHia^ and neither a traveler on the highway nor the railroad
oompany has an exdnsive right of passage.
Trespass on the case. The opinion states the facts.
Morton P. Henryy for the plaintiffs in error.
Oeorge H. Earle and R. J. WhiUy for the defendant in error.
By Court, Stbonq, J. The plaintiff sued for an injury to
himself and his property, caused, as he alleged, by the negli-
gence of the defendants. It was the result of a collision.
The accident occurred at the intersection of the defendants'
railroad with Dauphin Street, along which the plaintiff was
driving a horse attached to a covered wagon. At the crossing,
a regular passenger train on the railroad came into contact with
the horse and wagon, in consequence, as was averred, of the
carelessness of the defendants' agents. Whether there was
Feb. 1865.] North Penn. B. B. Co. v. Hxileicak, 483
such carelessness was submitted to the jury, and of the mode
of submission there is no complaint. But the contest in the
court below involved also the inquiry how taiy if at all, the
negligent conduct of the plaintiff had contributed to the hurt
sustained by him. There was evidence that as he approached
the crossing of the railroad he was seated far back in his
covered wagon, with the curtains down (closed); that the cur-
tains were tight, though there was a small glass window on
each side, and that a person coming down Dauphin Street in
the direction in which he came could have seen the railroad
track, had he looked out, for from seventy to seventy-five yards
firom its intersection with Dauphin Street. Such evidence jus-
tified the defendants in proposing their points to the court, the
first of which was as follows: '^That it is the duty of a trav-
eler approaching a railroad crossing to look along the line of
the railroad and see if any train is coming; and if the jury
believe the plaintiff failed to take such a precaution, he was
guilty of negligence, and cannot recover in this suit." This
point the court answered by saying: " This is one of the rea-
sonable precautions a man is bound to use, and its absence is
evidence of neglect" This was not a full answer to the
point. The court conceded that looking out for the approach
of a train is a duty, when a traveler is about to cross a rail-
road track, but instead of charging the jury that failure to
look out is negligence, instructed them that it was evidence of
negligence. This was not all the defendants asked, nor all
they were entitled to have. Absence of such a precaution
was more than evidence of negligence. It was negligence
itself, and it was such as may have contributed directly to the
injury, for the uncontradicted evidence was, that the plaintiff
drove his horse and wagon slowly upon the track in front of
the passing locomotive. If he did this without looking along
the track, he acted without any precaution against a known
danger, and he was not entitled to recover if his want of pre-
caution contributed to his hurt
That what constitutes negligence in a particular case is
generally a question for the jury, and not for the court, is un-
doubtedly true, becaiise negligence is want of ordinary care.
To determine whether there has been any involves, therefore,
two inquiries: 1. What would have been ordinary care under
the circumstances? and 2. Whether the conduct of the per-
son charged with negligence came up to that standard. In
most cases the standard is variable, and it must be found by
484. NoBTH PtiNN. B. R. Co. v. Heileman. [Penn.
a jury. But. when the standard is fixed, where the measure
of duty is defined by the law, entire omission to perform it is
negligence. In such a case, the jury have but one of these
iaquiriefli to make. They have only to find whether he upon
whom the duty rests has performed it. If he has not, the law
fixes the character of his failure, and pronounces it negligence.
Of this there are many illustrations.
Now, that it is the duty of a traveler when approaching the
intersection of a railroad with a common highway to look out
for approaching trains or engines, the court below asserted
more than once, and correctly. That standard of duty is fixed
by the law. At the place of intersection, there are concurrent
rights. Neither the traveler on the common highway nor the
railroad company has an exclusive right of passage. Even on
a common road, travelers must look out for the approach of
other vehicles passing. And this is the more necessary at a
railroad crossing, because movement upon such a road is more
speedy, and because the consequences of a collision are usually
BO disastrous. Precaution, looking out for danger, is therefore
a. duty. It was well said in Reeves v. Delaware and I^ickar
waTwia R, R. Qo.j 30 Pa. St. 464: ''The traveler has the obliga-
tion of prudence upon him; he is bound to stop and look out
for trains, and may not rush heedlessly or remain unnecessarily
in a spot over which the law allows engines of fearful power
to be propelled." Not looking for a coming train is not merely
an imperfect performance of duty; it is an entire failure of
performance. Had the court been asked to declare fedlure to
look out until the plaintifiT was within a certain distance of the
intersection to be negligence, the case would have been difier-
ent. That was the state of facts in Permeylvania R. R. Co, v.
Ogier, 35 Pa. St. 60 [78 Am. Dec. 322]. There it would neces-
sarily have been for the jury to determine what degree of
vigilance he should have exercised. But not looking at all is
an entire absence of vigilance. We think, therefore, the court
should have instructed the jury that it was negligence itself,
and not merely evidence of it, fh)m which they might or might
not find it. This would have left to them to find whether the
plaintiff had looked for a train, and if he had not, whether
his neglect to look had been a contributing cause of the injury
he had received.
The second point proposed was but a repetition of the firsti
and the answer is obnoxious to the same criticism.
Judgment reversed, and a venire de novo awarded.
Feb. 1865.] Cgbson v. Mulvany. 485
PLADfniv BT an Own IXtauawsoM OcaraaBOTiMQ to Ihjust oahkov
Rbootxr: See Warren ▼. FUMurg IL ILCa.,^ Am. Deo. 700^ note 706^
where other oaoes are cdlleoted
When Kohsuit or Judokeut fob Doeniuht mat bi Qbdbbkd m ao*
tion for negligence: See Warren ▼. FUMurg R. B, Co., 80 Am. Deo. 700, note
706^ where other cases are collected; Snow v. Eouaatomc R. R» Co,, 86 Id.
720, note 730.
Fazlubx or TfiATSLSR ON Highway whin Cbosszno Railboad Track
TO Look out for approaching trains is negligence in law: Ptttaburg JeC, R.R,
Co. ▼. McChtrg, 66 ?a. St. 298; Pennsylvania Canal Co, ▼. Beniley, 66 Id. 83;
Wett Chester it PhUa. R. R. Co. ▼. MeEhoee, 67 Id. 316; Pennsykfania R. R.
Co. ▼. Beale, 73 Id. 610; Chicago <fr A. R. R. Co. v. Jacobs, 63 HL 179; BeUtfon-
iaine I^y Co. ▼. Hunter, 83 Ind. 369; Lake Shore etc R. R. Co. t. MiOer, 25
ICich. 291, all citing the principal case. •
Thb frznoipal case is also gitxd in Detroit dt M. R. R. Co. r. Van Siebs^
hmrg^ 17 Mich. 118, to the point that, a« a general rale^ the question of neg-
ligence is a qnestion of fact, and not of law. It is also distinguished in
Bangkmanr. 8hemngoAA. R. R. Co.,921^tu St 33a
Corson v. Mulvany.
[49 Pbnnstlyania Btats, S8.J
WhIEB OnB AOBBBS in WrTTINO to PeBHIT AnOTHBB to SlABOH lOB
Ibon Obx on his land for a fixed time, the latter to then have the option
to purchase the land at a fixed price, part to be paid upon the ezecntioii
of the deed, and the balance to be secured by mortgage upon the prop-
erty for two years, and the vendee, having elected tatake the land, and
given notice to the vendor, at the same time tendering the amount agreed
to be paid down, brings ejectment to compel a specific performance, evi-
dence that the contemplated use of the land would destroy its value
within two years, and that the vendee's circumstances were such that
he would be otherwise unable to pay the mortgage debt, is inadmissible
when it is not shown that the vendee's circumstances had changed after
the making of the contract.
^fl^gKMKHT roR PURGHASE OV LaND AT OPTION ov Vbndeb onlt is not
BO devoid of mutuality as to prevent its being enforced specifically. Nor
will the vendor's refusal to accept the consideration destroy the mutual*
ity of such contract, although the vendee might, upon suoh xefnaal, havo
retracted his election.
Vsnubb mat Waive Full Pebiobicangb or AanEMaaan ior PuBOHAaB
of land, and take such title as the vendor can give. I^ therefore, he
agrees to waive a release of dower by the wife of the vendor, the latter
cannot object to a performance on the ground that his wile refuses to
sign the deed.
OOMMON-LAW BeICBDT BT EjBOrMBlIT, USED A8 MbANB TO Ck>lfPEL SPEOmO
FBBiORKANOEy in Pennsylvania, is not taken away by the grant of equitg^
' powers to the court of common pleas.
Bjbctmbnt to recover possession of certain lands by an en*
forcement of the agreement mentioned in the opinion. The
fitcts appear from the opinion.
'
486 Corson v. MulVany. [PenzL
Oeorge N. Corson and James Boyd^ for the plaintiff in error.
O, R. FoZj for the defendant in error.
lly Court, Agnew, J. Corson agreed that MuWany should
be permitted to dig five shafts on his lot, in search of iron ore,
between the date of his agreement and the 1st of April follow-
ing, and if then Mulvany desired to purchase the lot at one
thousand dollars, he should have the right and privilege of
doing so; the purchase-money to be paid, two hundred dollars
in execution of the deed, and eight hundred dollars in two
yesrs thereafter, with interest, and to be secured by mortgage
on the premises.
The first and second assignments of error ?nll be considered
together. Corson offered to prove that, by the ordinary pro-
cess of mining ore, the land would be so dug up within two
years as to be valueless; and to prove the amount of unsatia-
fied mortgages and judgments against Mulvany. The rejec-
tion of this evidence is alleged to be error, because such factSi
it is said, would have induced a chancellor to withhold a
decree for specific performance, which is of grace, and not of
right.
It is not alleged that Mulvany's circumstances had cbang^
after the making of the contract, and we are asked to with-
hold relief merely because of consequences growing directly
out of the terms of the agrectoient. There is no proof of fraud
or unfairness, nor is there any of weakness of intellect, in-
toxication, surprise, or any circumstance affecting the ca-
pacity of Dr. Corson to contract. His whole case is, that he
agreed to sell his lot, and defer the payment of eight hundred
dollars of the purchase-money for two years, on the security
of a mortgage alone, and that within this time all the ore may
be removed from his lot. This was a consequence plainly
within his view in making his contract. Its purpose was to
test the lot for the presence of ore. His object was to do this
at Mulvany's expense, and if ore were found, to obtain a
higher price for his lot. Mulvany was frilling to do this, pro-
vided if he found ore he should have a right to purchase.
These are the manifest inferences to be drawn from the con-
tract itself. Now, after ore has been discovered in the fifth
and last shaft, he asks Mulvany to be turned away without
obtaining the very thing which induced him to expend his
means in experimenting. Corson did not bind himself to pay
Feb. 1865.] Cobson v. Mulvant. 487
fhe outlay. How can a chancellor refuse his aid in 00 plain
a case? We see no error in the rejection of the evidence.
The third and fourth errors assert that the contract is not
mutualf because an option was given to Mulvany only to con-
vert the privilege into a purchase. If this be true, it will
prevent specific performance, for it is settled equity will not
enforce specific performance where the remedy is not mutuaL
Both parties have signed and sealed this agreement, and the
language of the instrument clearly imports a covenant on
part of Mulvany to pay the purchase-money, if he elects to
purchase. The language of a writing may be wholly that of
a vendor, yet the vendee's sealing or accepting it will bind
him, and whether the action against him should be case or
covenant is not material: Dubbs v. FMeyj 2 Pa. St. 397; ifo
Farson^s Appeal^ 11 Id. 504-510; Campbell v. Shrumj 3 Watts,
60; Cott V. Seldeuj 5 Id. 525; Meade v. Weaver, 7 Pa. St. 330,
831. In the last-named case, the effort of Chief Justice Gib-
son was to show that covenant would not lie when the party
had not sealed the writing; however, debt or assumpsit might.
The English authorities cited in that case conclusively show
that the entry of the grantee, or his acceptance of a deed-poll,
are equivalent to sealing, and covenant will lie.
Then the naked question is, whether in a mutual contract
to give an option, the party who gives notice of his election is
bound to performance. To assert the negative is simply to
deny the power of making a conditional contract, and of de-
claring that performance shall take place when the contin-
gency happens. If one contracts to purchase a vessel at sea
upon her safe arrival in port, no one will dispute that an
obligation to deliver on one side, and to pay on the other,
arises upon her safe arrival. The vessel may never arrive,
and the contract is not absolute to performance on either side
till the contemplated contingency occurs; but the contract is
binding, and only awaits the event to become binding also to
performance.
Now, as a contingency or condition on which performance
is suspended, what difference is there between a contingency
depending on the action of third persons or the controlling
power of Providence, and one depending on the act of one of
the parties? The uncertainty which attends the contingency
exists in either case. The vessel may not arrive, or the party
may not elect, but if either event takes place, the contingency
has occurred. A choice or an election is but a fact, and
488 CoBBON V. MuLVANY. [Pexm.
wherein does it differ from any other fiact made the condition
of performance? The agreement is mutual. One saye, I will
sell if you conclude to purchase; the other says, I will pay if
I do conclude to purchase. He then resolves, and says, I
have concluded. The contingency upon which performance
was rested has happened. Why are not both bound? One
would think it a plain case of mutual obligation to perform
on the happening of the event which was fixed as the condi-
tion of performance. The buyer tenders his money, and
clearly the seller is bound to receive it. By the very offer to
pay, the purchaser not only recognizes the obligation of his
previous assent to the contract, but the happening also of the
fact on which his obligation to perform rested. The offer or
tender is not itself the election, it is but the consequence of it.
Election and notice of it precede the tender.
At this point a new and ingenious turn is given to the argu-
ment. It is said, but if the seller refuse to accept the
tender, the purchaser may retract; he is not bound, and of
course the remedy is not mutual. But the fallacy lies in
this: he is not bound, not because no obligation to perform
arose in his election, but because he sets up the seller's
breach of contract by refusal as a discharge of the obliga-
tion. The obligation was there, but because the seller chose
not to recognize it, the purchaser now chooses to be dis-
charged from it.
Take a better test. The purchaser writes to the seller: I have
concluded to take your property according to our contract. I
will have a deed prepared for your execution, and a mortgage
according to the terms, and will meet you to perform our
bargain. Will it be said that after this explicit notice of his
election the purchaser can fly from his contract without a re-
fusal of the seller to accept performance? Then how can the
seller avail himself of his own refusal as a ground of non-
performance, so long as the purchaser declines to avail him-
self of the discharge which the refusal affords?
The error into which the opposite argument runs is in sup-
posing that election is the initiation of a new contract, instead
of the stipulation on which performance of an old one reste.
It is the idea of a proposition which may be retracted before
acceptance, and no contract arises, — forgetting that here there
is a contract for election, which prevento a refusal to accept.
Therefore, it is said there can be no obligation without
the consent of the other. This loses sight of two facts: 1.
Feb. 1S65.] Cobson v. Mulvany. 489
That a previous assent has been given; and 2. That the party
notified of the election has no right to dissent. The party is
ah*eady bound to accept performance when the election shall
be made, and when made his previous assent attaches. He
may refuse, it is true, but it is not to decline a proposition,
but to refuse performance of a bargain. If it were the initia-
tion of a new contract, as if one should voluntarily offer me
his bond, he would not become my debtor until I accept it. I
am in no obligation to receive his bond, but if I had bound
myself to receive his bond in performance of some stipulation
already agreed upon, I would find it difficult to refuse it.
If this case stands in need of authority, it has one directly
in point. In Kerr v. Day, 14 Pa. St. 112 [53 Am. Dec. 52], the
agreement was a lease for three years at a certain rent, with
the privilege of buying the lot at any time during the term,
at the price of twelve hundred dollars, in such payments as
might be agreed on, not exceeding ten years from the date.
The title passed into Day, a purchaser from the lessors, and
the lease into the hands of a second assignee of the tenant.
The first assignee gave notice of his election to Day, the pur-
chaser. The opinion of this court was delivered by Bell, J.,
holding that the title vested upon notice of the election in
equity, and operated as a conversion of the lessor's estate into
personalty, that the election by the assignee was good against
the alienee of the lessors, and he became liable to specific per-
formance, and moreover, was bound to take notice of the right
of election contained in the lease. Kerr v. Day, supra, has
this feature to weaken it, that the installments were not de-
fined in the agreement, but left to be settled at a period not
exceeding ten years. This no doubt led to the remark in
Elder v. Robinson, 19 Pa. St 365, of Lowrie, J., who had de-
cided Kerr v. Day, supra, in the lower court, that the principle
was strained to its utmost in Kerr v. Day, supra. But he did
not deny its authority. In the present case there was nothing
left open in the contract, and as soon as Mulvany made his
election, his duties under the agreement were fixed and cer-
taio. The opinion of Justice Bell is referred to for numerous
authorities examined in detail.
Wilson V. Clarke, 1 Watts & S. 554, and Bodine v. OladinQf
21 Pa. St. 50 [59 Am. Dec. 749], have no bearing on this case.
They were clear cases of a want of mutuality, where the stat-
ute of frauds in the one, and abandonment of the contract in
the other, caused the agreement to be not binding. Admit-
490 CoBSON V. MuLVANT. [Poim.
ting to the fullest extent the doctrines of these two cases, that
want of mutuality is a bar to specific performance, either upon
a bill in equity or an ejectment, we are of opinion there is no
want of mutuality in the contract between these parties.
We see no error in the fifth assignment. It is in the power
of a party to waive full performance, and accept such title as
the vendor is able to give. Mulvany's waiver, therefore, of a
release of dower by Corson's wife, took away the force of the
objection that she refused to sign a conveyance.
The sixth error raises the question wheUier the common-law
remedy by ejectment, used as a means of specific perform-
ance, is taken away by the grant of equity powers to the
courts of common pleas. Clearly, the legislature did not in-
tend to take away common-law actions by a grant of equity
jurisdiction. The act of 1806, providing that when a statu-
tory remedy is given it must be pursued, does not apply.
The law refers to specific remedies given for special cases.
But the grant of equity jurisdiction is simply a grant of cer-
tain general equity powers in addition to powers already ex-
isting, and not in exclusion. It is rather a novel idea that
equity, which is admitted to moderate the law, is to super-
cede it altogether. It is not necessary to notice tiie remaining
assignments of error in detail; it is sufficient to say that in
none of them do we discover any error.
The judgment is affirmed.
MXTTUALITT OF CONTRACT IS GSNEBALLT NeGBSSABT TO fiSTITLI PABTT
TO Sfeoifio Pebfobmangb: JHder ▼. Cfray, 69 Am. Dec 136, note 140^ where
other cases are collected; Wynn ▼. Ocurland, 68 Id. 100, note 201; Bodme v.
Oladmg, 59 Id. 749, note 751; De Cordova ▼. SnM*s Adm'x, 58 Id. 136.
Ck>iiTRAOT BnrDiNO ON Onb Party onlt maybe decreed to be spedfically
enforced: Kerr v. Day, 53 Am. Dec 526, note 532, where other cases are col-
lected; Bogeray. Saunders, 33 Id. 635; SmUh and FfeeH^s Appeal, 09 l^t^ St. 480;
Feaeler^s Appeal, 75 Id. 499, both citing the principal case.
AonoN ov EjBonuNT mat, m Pxnhstlvania, bb Emflotxd as Rxkxdt
to compel specific performance of a contract for the sale of land, or to enforce
a tmst in regard to it: Chwrch r. Buland, 64 Pa. St. 441, citing the principal
Thi fbincopal gasb u crriD in Frid^s Appeal, 101 Pa. St 489, to the
point that after notice of acceptance by the Tendee of land to the Tendor, the
^qoitable title is in the Tendeei
Feb. 1865.] Nobth Penn. R. R. Co. v. Rehman. 491
NOBTH PBNHflYLVANIA E. R Co. U EeHMAN.
\4B Pbknbtltamia Btats, lOLI
OwirXB OANHOT RlCX>TEB DaMAOIS fOB MULSS EXLLU) UFON RaZLBOAB
Track by the engine and can of the company, although they had, with-
oat hia knowledge, escaped from a properly f enoed field, and were at the
time of the accident on the eroesing of a public road over the
Trespass on the case. The opinion states tb^ facts.
Morton P. Henry ^ for the plaintiff in error.
Oeorge H. Earle and R, P. Whiter for the defendant in error.
By Court, Thompson, J. It was conceded in argument, that
the law is settled in this state, that if cattle are suffered to run
at large, and are injured or killed on the track of a railroad,
without wantonness, or such gross negligence as might amount
to the same thing, the owner has no recourse against the com-
pany or its servants: Railroad Company v. Skinner ^ 19 Pa. St.
298 [52 Am. Dec. 654].
Two elements are said to exist in this case which it is sup-
posed modify, or perhaps render inapplicable altogether, the
rule of that case so far as it is concerned; namely, that the
mules in question were not turned out to run at large, but were
put into a field, with a good fence around it, on the evening
previously to being killed, and escaped thence without the
knowledge of the plaintiff; and secondly^ that when they were
struck by the defendant's engine, they were on the crossing of
a public road over the railroad.-
Do these elements distinguish the case in principle from
Skinner's case? I do not think they do. It is asserted in
that case in the clearest terms, without exception or limitation,
in regard to the crossing of roads or streets, that cattle roam-
ing on the track of a railroad are trespassing as regards the
company, and if they are killed without wantonness or gross
carelessness, the company is not to be answerable for the loss.
Chief Justice Gibson said: ^'The company is a purchaser, in
consideration of public accommodation and convenience, of the
exclusive possession of the ground paid for to the proprietors
of it, and hence to use the greatest allowable rate of speed,
with which neither the person nor property of another may
interfere." This was a well-considered case; the doctrine is
announced as of general application, and as such it has been
generally accepted by the people, who have long since, in the
neighborhoods of railroads, especially in the thickly settled
492 NoBTH Penn. B. B. Co. v. Behman. [Penik
parts of the state, endeavored to conform to it. It was un*
doubtedly by the application of the common-law mle, which
requires the owners of cattle to restrain them from trespassing
at their peril, that this conclusion was reached. That this is
the rule, see Dovaaton v. Payne^ 2 H. Black. 517; Ricketts v.
East and West India D. & J. Ry Co., 12 Eng. L. & Eq. 520;
in note to Manchester 8. & L, Wy Co. v. Waiis, 25 Id. 373;
Shelford on Bailways, 470, note 1; Munger v. Tonawanda JB. IL
Co., 4 N. Y. 849 [53 Am. Dec. 384]; Avery v. Maxwell, 4 N. H.
86, 512.
It is true, by custom in Pennsylvania, owners of cattle are
not liable to be sued for trespass on account of their roaming
on uninclosed wood or waste lands. But to permit such roam-
ing is hardly a right; it is a privilege or immunity rather,
growing out of the inappreciable damage that would be done:
Railroad v. Skinner, supra; Knight v. Abert, 6 Pa. St. 472
[47 Am. Dec. 478]. The maxim, De minimis, etc., in this
particular controls, — to avoid vexatious suits.
In trespass, the rule undoubtedly is that intent or ignorance
is no defense. It does not condone the injury. Whether the
damage be great or ^ small, it is the unauthorized act that
creates the liability; the damage is but an incident of the
wrong. In harmony with this idea is the common-law require-
ment that every one must exercise his rights and privileges so
as not to injure others. Hence animals which have the pro-
pensity to trespass by breaking into inclosures must be
restrained, at the peril of paying for their trespass by their
duress: Dolph v. Ferris, 7 Watts <fe S. 367 [42 Am. Dec. 246].
It is settled with us beyond doubt that railroad companies
are not bound to fence against cattle; and by the decision al-
ready cited, and many others, that such companies have, and
it is necessary to their existence that they should have, the
complete and exclusive possession and entire control of their
tracks, and are entitled, as against everybody and everything
not lawfully on their road, to a clear track. It is quite ap-
parent, if they are not obliged to fence against roaming cattle^
that they are at the mercy of the public in this respect, unless
the law will protect them. Bailroad tracks are neither wood-
lands nor waste fields, and are not within the usage as to
roaming cattle in such places. The common law steps in to
protect the road, and to protect those upon it, and, as in Rail*
road V. Skinner, 19 Pa. St. 298 [57 Am. Dec. 654], declares
vagrant cattle upon it as trespassers. There are many an*
Feb. 1865.] North P^tn. R. R. Co. v. Rxhman. 493
ihoritias to tluB effect in England and in this coimtry, but a
fiw only will be refened to: Manchester 8. & L. Ry Co* v. TFtZIu,
25 Eng. L. & Eq. 873; 2\matMmda 12. R. Co, v. Mwnger^ 5 Denio,
255 [49 Am. Deo. 239]; 8. C, 4 N. Y. 349 [58 Am. Dec. 384];
PerHne v. EaeUm and B. & M. R R. Co.^ 29 Me. 307 [50 Am.
Dec. 589]; Sbelford on. Railways, 507; Vandegrift v. Bediker^
22 N. J. L. 185; Avery v. Maxwell^ 4 N. H. 36; Milie v. Stark^
4 Id. 514 [17 Am. Dec. 444]; Tewksbury v. BucUin, 7 Id. 518.
And it is also expressly laid down in many authorities that
where no regulations to fence exist, such companies are gov-
erned by the rule of the common law. In addition to the
eases just cited, in which is contained this doctrine, see also
Faweett v. New York & K M. R. R. Co.^ 2 Eng. L. & Eq. 289;
Perkins v. Eastern R. R. Co,j 1 Am. Rail. Gas. 144; Totvns v.
Cheshire K R. Co.j 1 Id. 213, and note. Indeed, the result is
inevitable. A railroad in this state could not co-exist with
the preservation of the usage to its full extent. Their speed
would be destroyed in their attempts to keep the track clear;
and the lives of passengers put in jeopardy constantly if they
should disregard such precautions, as well as being subjected
to what it would cost to pay for cattle killed or injured in case
of disregarding them.
Whether, therefore, the plaintiff's mules escaped from an
inclosed field or not, in view of the trespass on the defendants'
road, I do not think makes any difference in this case. It
was undisputed that they were on defendants' road without
license. If so, they were there wrongfully, — were trespassers.
How can the owner separate his case from the wrong done by
his cattle? Intention — nay, effort to prevent — will not make
their occupancy of the track of the road lawful. If they were
in fault, it was because their owner was in fault in not re*
straining them. He was bound to do it at his peril. He did
not restrain them so as to prevent their being in the way of
the defendants, and I see not how he can lawfully demand
eompensation in such an aspect of the case. The case of
Knight v. Abert, 6 Pa. St 472 [47 Am. Dec. 478], illustrates
the idea. The plaintiff's cattle were unbidden on the wood-
lands of the defendant. One of them fell into an ore pit and
was killed. The owner charged negligence on the defendant
lor leaving it open, and the defendant replied that his cattle
were trespassing, and he was not bound to take care of them,
or to run the risk of injury if they came on his place without
leave. This was held to be a good defense, Qibson, C. J., sav«
494 NoBTH Penn. R. R. Co. v. Rehman. [Penn.
ing: " He who suffers his cattle to go at large takes upon him-
self the risks incident to it." So we think in this case the
risk was on the plaintiff, and if his cattle were not killed in
wantonness or by gross neglect, he must abide the loss.
There was not a particle of evidence of this in the case.
These views, we think, meet the first aspect of the case; but
it was insisted on argument that the mules were on the com-
mon highway, at the point where it crosses the railroad, when
they were killed by the defendants' engine and train, and
therefore not trespassing. Highways are established to ac-
commodate travel alone, and it can hardly be that unattended
and loitering cattle are within the class. True, they may not
be taken up as strays because on the highway, nor the owner
sued for trespass for that reason alone; but unreasoning and
dumb, it is absurd to think of them in reference to rules gov-
erning the enjoyment of the easement of passing and repass-
ing on a highway, among which is the duty to take care of the
rights of others, and their own safety. Such being the case,
as a general thing, it is negligence to permit them to wander
where they may do as well as receive injury. This subject
has received judicial notice in more than one case. In Dcvcu^
ton V. Payne, 2 H. Black. 517, it was held in a plea in bar to
an avowry for taking cattle damage-feasant, that the cattle
escaped from a public highway iuto the locta in quo^ through
a defect in the fences, it must show that they were passing
along the highway when they escaped, and Ihat it was not
sufficient to aver that, ''being upon the highway, they escaped.''
Buller, J., said: "Whether the plaintiff was a trespasser or
not depends on the fact whether he was passing or repassing
and using the road as a highway; or whether Us cattle were
in the road as trespassers "; and that it was fatal to the plea
to omit the averment of passing on the highway at the time of
the escape into the defendant's close.
So in Queen v. Pratt, 4 El. & B. 860, it was held that a per-
son was rightly convicted of trespass under the statute of 1
& 2 Wm. IV., in regard to game, although he was in the
highway when he fired at the bird as it flew over it. The
ruling was, that as the evidence showed that the defendant
was not in the road in the exercise of the right of way, but for
another purpose, viz., in search of game, he was a trespasser
on the lands of the adjoining owner through whose lands the
road lay, and over which the public had only an easement for
the purposes of travel.
Feb. 1865.] North Pbnn. R. R. Co. v. Rbhmam. 495
In Avery v. MaxweU, 4 N. H. 36, cited 9upra for another
purpose, it vas held that no one has a right to turn his horses
or cattle into the highway to graze, except in those parts where
he is the owner of the soil. And if a horse be tnmed into a
road at another place, although fettered as required by law, if
he escape into an adjoining close through a defect of fences
which the owner was bound to repair, yet the owner of the
horse will be liable for the trespass. The same principle was
asserted in Milk v. Starh, 4 Id. 614 [17 Am. Dec. 444]. Sev-
eral authorities are to be found in a note on the same subject
in Shelford on Railways, 507. We have numerous cases to
the same effect in principle in our reports: OJutmbera v. Furry ^
1 Yeates, 167; Cooper v. Smithy 9 Serg. & R. 82 [11 Am. Dec.
658]; Ridge v. Stoever^ 6 Watts & S. 378; Levne v. Jonesj 1
Pa. St. 336 [44 Am. Dec. 138] ; Sanderson v. Havereticl, 8 Id.
294.
The learned judge below left the question of due care on
part of the plaintiff in regard to the cattle to the jury, telling
them that if he was not guilty of negligence in that respect,
or in other words, if his field was sufficiently fenced, in which
he turned his mules, and they escaped and were killed on the
highway by negligence of the servants of the company, they
would be liable to pay for them. In view of the authorities
and reasons already given, we think this was wrong. It seems
to us the company is as much entitled to a clear track at
crossings, subject only to the right of travelers, as anywhere
else; and if couchant or loitering cattle on such crossings have
any legal rights as such, I am at a loss to discover from
w;hence they are derived. The authorities are almost uni-
versally against the assumption. I do not mean by this that
they may be wantonly destroyed even in such places, or that
gross negligence in regard to them will be excused. Neither
would it be excused in regard to trespassing cattle on inclosed
fields. They may not be killed, or their safety entirely dis-
regarded in that case. With this reservation, arising out of
sentiments of humanity and social duty, the law accords; but
to go further would be to release owners from the appropriate
care due to such property, and to injure the community in
doing so.
Both the points I have thus noticed are embraced in the
questions reserved by the court, but which it ultimately de-
cided against the defendant. They are: *'That under the
undisputed evidence in this case, as the plaintiff's mules were
496 North Penn. R. R. Go. v. Rehmam. [Penn.
killed while straying upon the defendants' track, the defend-
ants are entitled to a verdict." Second. ''The owners of cattle
killed while straying upon a railroad cannot recover damages
from the company."
I do not suppose that these points were overruled because
not properly qualified by the reservation that cattle must not
be killed wantonly, or by such gross negligence as to amount
to the same thing. There was nothing like that in the evi«
dence; indeed, it seems to me there was very slight evidence
of any negligence whatever. Treating it, therefore, as a case
or ordinary negligence at most, the question is, Could the
plaintiff, under the circumstances, recover? To say he could
is to deny the points; and in doing so, to afiSirm that straying
cattle, standing, lying, or browsing on the track of a railroad,
are lawfully there, so as to exonerate the owner from all blame
if he can show he was ignorant of their escape from his cus-
tody. We think we have shown that this is not the law; and
I am sure if it were, it would encourage carelessness in regard
to the care of animals, increase litigation, and greatly enhance
the perils of railroad travel. The only way to secure the
greatest safety in such a mode of traveling is to hold all ob-
structions unlawful. Ordinary passage by the public over a
railroad on a public highway is in no sense an obstruction,
nor is the passage with droves or horses usually; but it is an
unauthorized obstruction for roaming beasts to be there; and
as the duty is on the owner to keep them away, he is in fault
in falling to perform the duty, and cannot recover even if there
were negligence on part of the railroad company's servants in
killing them. Where there is mutual contributory negligence,
neither party can recover for its consequences. The public
have accepted the doctrine of Railroad v. ShinneVf 19 Pa. St.
298 [57 Am. Dec. 654], and have to a considerable extent
adapted their circumstances to it, and are constantly con-
forming more and more to it; but I am persuaded that the
exception which this case would introduce, were we to affirm
it, would in the end greatly impair, if not entirely overthrow,
the rule itself, which I think all will admit is most wholesome.
The case of Bvlhley v. New York and New Haven R, J2. Co.,
27 Conn. 479, has been examined, and I do not think it en
titled to the weight given to it below. If I understand the
opinion of Ellsworth, J., the plaintiff in error failed to raise
the questions of law which really belonged to the case. Cer*
tain it is, the case seems to have been but little discussed.
Feb. 1865.] Kilpatrick v. Penrose Febby Bbidob Co. 497
Besides that, the railroad company appears to have been in
default in not constructing cattle*guards at the crossing of the
public road, as they were bound by their act of incorporation
to do, and the plaintiff's cattle being at large, not in contra-
vention of the statute on that subject, the court below left it
to the jury to say whether the plaintiff had exercised " ordi-
nary care" in view of all the circumstances. It is certainly
true that what is "ordinary care" varies essentially with cir-
cumstances. In conclusion, we hold that the owner of the
cattle is bound at his peril to keep his cattle off the railroad,
and if he do not, the law treats him as negligent, and not en-
titled to recover, excepting only in case of wanton injury or
by gross carelessness. We think judgment should have been
entered in favor of the defendants, mm obstante veredicto.
And now, to wit, February 24, 1866, the judgment entered
in the district court is reversed, and judgment is here now
entered in favor of the defendant, non obstante veredicto^ with
costs.
YiTABn.TTT 07 Railboad Oompakt fOB Injtbibs to Cattu: See Thaifer
r. 8U Louit etc B, R Co., 85 Am. Beo. 409, note 412; Chicago A N. W. Ry
Co. V. Oon, 84 Id. 766, note 768, where other caees are collected; Central Ohio
R, Ji. Co. V. Lawrence^ 82 Id. 434, note 438. An owner of cattle, in default
for permitting hia cattle to be where they have no right to be, cannot recover
for them if they are killed or injured: Drake v. PhUaddphia db JS, B, H. Co.,
61 Pa. St. 243; Indkanapolie etc. R. B. Co. v. Harter, 38 Ind. 660; PUttimrg
etc B*y Co. ▼. Stuart, 71 Id. 604, all citing the principal case.
KiLPATBiOE V. Penrose Ferry Bridge Company.
Serrill v. Same.
[49 PBNN8TLVAMIA BTATB, 11E.J
OFtiOKRS ov CoBPOKATiON GANNOT Rboovkb ON QUANTUM Mbbutt for ser-
vices rendered to the coxporation as snch officers. Without an express
contract for compensation, no recovery can be had for such services.
Assumpsit to recover itom the corporation defendant com-
pensation or salary for services rendered by the plaintiffs as
president and treasurer respectively of the company. The
(acts are stated in the opinion.
/. 8. SerriU and Charles E. Lex^ for the plaintiffs in error.
/. B. Tovoneendj for the defendants in error.
AM. Dsa Vol. LXXXVin-82
498 KiLPATRicE V, Penrose Ferry BRmas Co. [Penn.
By Court, Woodward, C. J. Mr. Serrill was elected presi-
dent and Mr. Kilpatrick treasurer of the bridge company in
June, 1859, and served in their respective offices until Feb-
ruary, 1864. The evidence proved a faithful performance by
these officers of their respective duties, and that their services
were reasonably worth from $350 to $500 per annum, but no ex-
press contract for compensation was proved. After the com-
pany had sold its bridge to the city, at a loss to the stockholders,
these actions were brought, and the question, the same in each
case, was, whether the plaintiff could recover on a qitantum
meruit
The salary or compensation of corporate officers is usually
fixed by a by-law or by a resolution, either of the directors or
stockholders, but where no salary has been fixed none can be
recovered. Corporate offices are usually filled by the chief
promoters of the corporation, whose interest in the stock or in
other incidental advantages is supposed to be a motive for
executing the duties of the office without compensation, and
this presumption prevails until overcome by an express pre-
arrangement of salary. Hence, we held in Loan Association
v. Stonemetz, 29 Pa. St. 534, as a general principle, that a
director of a corporation elected to serve without compensa-
tion could not recover in an action against the company for
services rendered in that capacity, though a subsequent reso-
lution of the board agreeing to pay him for the past services
was shown.
So in Dunston v. Imperial Gas Company ^ 3 Barn. & Aid.
135, a resolution formally adopted allowing directors a certain
compensation for attending on courts, etc., was held insuffi-
cient to give a director a right to recover for such services.
And the rule is just as applicable to presidents and treas-
urers or other officers as to directors. In Comm/mwealih In-
surance Co. V. Craney 6 Met. 64, the company had passed a
vote fixing the salary of its president at a certain sum per
annum, but when another president was subsequently elected,
and he claimed the same salary, it was held that his claim
did not stand on the footing of a written agreement, and that
circumstances might be shown to raise the implication that he
expected to serve without compensation.
It is well that the rule of law is so. Corporate officers have
ample opportunities to adjust and fix their compensation be-
fore they render their services, and no great mischief is likely
to result from compelling them to do so. But if, on the other
Feb. 1865.] Eilpatrick v. Penrose Febby Bridge Co. 409
hand, actions are to be maintained by corporate officers for
services, which, however faithful and valuable, were not ren-
dered on the foot of an express contract, there would bo no
limitation to corporate liabilities, and stockholders would be
devoured by officers.
It was argued that the case of Bradford v. Kirnberly^ 3 JohnR.
Cas. 431, contains the principles on which these actions ought
to have been sustained, but we do not think so. Several joipt
owners of a vessel and cargo appointed one of their number to
receive and sell the cargo, and distribute the proceeds, and it
was held that he was entitled, under such special agency, to a
commission or compensation for his services as factor or agent,
in the same manner as a stranger would have been. Such
was that case; and the doctrine was nothing more than that
partners could constitute one of their number the factor or
special agent of the whole for a single mercantile transaction.
The right of compensation, and the right to retain the goods
as security for his compensation, resulted out of the defend-
ant's character of factor or agent, and the case was decided
when one partner was declared capable of being made by
special appointment the factor of the rest. But corporations
are not partnerships, and corporate officers are not factors.
In a word, the mercantile law is not corporation law. Cor-
porations stand upon their charters, and although their officers
are in a certain sense agents of the stockholders, they are also
trustees whose rights and powers are regulated by law. That
they may not consume that which they are appointed to pre-
serve, their compensation must be expressly appointed before
it can be recovered by action at law.
The judgment in each of the above cases is affirmed.
OmcEBS OF CoBPORATioiT ARE NOT EinTTLED TO Salabt OF compensa-
tion for their Bervioes nnless it is fixed by the by-laws, or by a resolution of
the board of directors: Qridk^ v. Li^fayeUe etc M*y Co., 71 BL 203; Maux
Ferry Oravel Road Co. ▼. Bromgamt 40 Ind. 866^ both citing the principal
600 Ingebboll v. Ingbrsoll. [Penn.
Ingebsoll V. Ingersoll.
[49 PBimTLTAinA Stati, 949.1
DbSIKTION IB AorUAL ABAJfDOmmiT OV MaTRIMORIAL Ck>IEABITATIOK,
WITH Intent to Desert, willfully and malicionaly peraisted in, witfaoat
caoBOy for two yeua. The guilty intent is manifested when, without
cause or consent either party withdraws from the residence of the other.
Whsbe Wife, upon her Husband's Failure to Support Her, Separates
' FROM Him, and returns to her relatives with his consent, the separation
is not a willful and malicious desertion on his part, such as will entitle
her to a divoroe, although he has ceased to write to her or to answer her
letters.
Petition for a divorce on the ground of desertion. The
opinion states the case.
Oeorge M. DaUaSy Jr., for the appellant
The Court. The neglect of the husband to provide for his
wife, as he was bound to do, and his acquiescence in her leav-
ing him to seek from her kinsfolk the support which he owed
her, are fiilly established in the proofs, but evidence is wholly
wanting of that *' willful and malicious desertion and absence
from the habitation of the wife, without a reasonable cause for
and during the term and space of two years," which is neces-
sary under our statute to support her libel for a divorce.
Separation is not desertion. Desertion is an actual aban-
donment of matrimonial cohabitation, with an intent to desert,
willfully and maliciously persisted in, without cause, for two
years. The guilty intent is manifested when, without cause
or consent, either party withdraws from the residence of the
other.
We see no evidence of such intent here. Instead of the hus-
band's desertion, she left him, with his consent, to be sure, and
for the best of reasons, and so was not herself guilty of deser-
tion; but if her voluntary withdrawal was not desertion on
her part, much less can it be considered as desertion on his
part.
He ceased to write her letters; but neglect to answer letters
is not desertion. Poverty, idleness, unthriftiness are great
evils when they drive a wife into separation from her husband,
but they must not be mistaken for the high crime of malicious
desertion.
Unable to find satisfactory evidence to support the libel, the
decree dismissing it must be affirmed.
1865.] HoBsncAN v. Oeekib. 6Q1
Dbsbbxiov a8 Gboizbtp wob, jyivaaoE, What is and Whav is vot: See
Mar8h ▼. Manh, B2 Am. Dec 251, note 254; MuUer v. HiUoi^, 71 Id. 503;
Ckmani v. Cmumt, 70 Id. 717, note 724, where other caeee are collected; Mc-
Crtmef ▼. MeOromep, 68 Id. 702; PkJnrd ▼. Pwkard, eS Id. 129; HardmY.
Hordm, 53 Id. 170; OMbT. Citor^ 84 Id. 166; Rkharimm v. Mkkaniafm, 80
Id.53&
HOBSTMAN V. GeBEEB.
149 PSHKBTLYAKIA 8TATB| 282.J
MosTOAOB nr Pkhwstlvakia is Mbrelt Sbuukitt for the payment of
money, or for the performance of some act therein stipmlated, end is at
most bat a choee in action.
Asnoma ov Mobtoagb Takes It Subjbct to All Equiubs in Uwot of
the mortgagor existing at the time of the assignment, notwithstanding
the fact that he is allowed to sne upon it in his own name.
Mortoaob Patabub in Fiyb Ybabs mat bb Dibghabobd B7 Patumt at
Ant TncB within that period.
Whbrb Mobtqaoor Dibohaboes Mortgaob bt Patinq Ihotbs to which
it is collateral, such payment is yalid against an assignee of the mort-
gagee who has neither given to the mortgagor any notice of the trans-
fer nor inquired of him concerning the state of his indebtedness.
Scire facias on a mortgage. The mortgage was made by
Henry Grerker to A. C. Miller, to secure the payment of six
thousand dollars in five years from date, and was afterwards,
at Gerker's request, assigned to J. P. Persch, as collateral
security for the payment of certain promissory notes. On the
10th of March, 1862, the notes held by Persch were paid and
given up to Oerker, Persch at that time promising to transfer
back and deliver up the mortgage upon his return from New
York. On the 7th of September, 1861, Persch assigned the
mortgage to Horstman, the plaintiff, who took it without ask-
ing Gerker any questions, or giving him any notice, and Ger-
ker had no knowledge of the Assignment until long after the
notes were paid. The assignment was not recorded until the
7th of November, 1868. The judge directed the jury to find
for the defendant, if they beLcved the evidence, and this was
the error assigned.
A. B, Parsons and Samuel Robbj for the plaintiff in error.
Erety and O, W. Wharton, for the defendant in error.
By Court, Thompson, J. It has long been settled in Penn-
sylvania that a mortgage is but a security'' for the payment of
money, or the performance of some act therein stipulated:
Simpson v. Ammon, 1 Binn. 175 [2 Am. Dec. 425]; Weniz v*
502 HoBSTMAN V. Gebebb. [Penn.
Dehaveuj 1 Serg. & B. 812; SchuylkiU Co. v. Thohuruj 7 Id.
419; McCaU v. Lenox^ 9 Id. 304; Crafi v. Webster^ 4 Rawle,
242; and is at most but a chose in action. Although it may
be assigned so as to permit the assignee to sue in his own
name, yet it is subject to the same equities and rules that
govern in the assignment of other non-negotiable instruments
or claims. In the case in hand, the plaintiff took the assign*
ment from the assignor, Persch, without a call on the mort-
gagor, or giving him notice that he held the assignment until
after the mortgagor had taken up the notes and obligations
for which Persch held it as collateral. The mortgage was
framed to meet such a contingency, by being drawn payable
in five years. It would thus allow a discharge any time
within that period. The plaintiff endeavors to avoid the con-
sequences of the want of notice to the mortgagor by alleging
that the payment by the defendant without the presence of
the mortgage was at his risk, or would only be good if the
instrument remained unassigned in the hands of the holder.
The point is thus raised that between two innocent parties the
loss must be upon the party paying under such circumstances.
But this is not so. This point is most distinctly settled in
Bury V. Hartmany 4 Serg. <fe R. 175, in which Tilghman, C. J.,
says, in the case of the assignment of a bond: ''The assign-
ment operates as a new contract between the obligor and as-
signee, commencing upon notice of assignment. Any other
construction would be extremely inconvenient, for the obligee
would never be safe in paying the interest or part of the prin-
cipal unless the bond was produced and receipt indorsed.
This would be throwing a great hardship on one who might
live at a distance from the obligor, and who has to send his
money by a third person. Besides, there is a default in the
assignee who neglects to give notice, and therefore does not
stand in equal equity with the obligor." Duncan, J., in a
seriatim concurring opinion, fully agrees with the chief justice
in this doctrine: See also WardeU v. Eden^ 2 Johns. Cas. 260,
cited by both. Although 6ibs<)n, J., dissented, and continued
on the bench long after his colleagues, the doctrine was never
changed. This authority, in fact, covers eveiy point raised
in this case, and conclusively rules them against the plaintifl
in error. It has been decided over and over again, beginning,
perhaps, with Wheeler v. HugheSj 1 Dall. 23, that the only
object of the act of 1715 regulating assignment of bills and
specialties was to enable the assignee to sue in his own name.
March, 1865.] Rbbsidb's Executor v. Beebidb. 503
The clause in the act, that the assignee may recover "so much
as shall appear to be due/' was said in tiie cases last cited
to refer to what shall be due at the time of the trial. So that,
if the obligor or mortgagor shall have without notice paid to
the obligee or mortgagee, the authorities cited conclusively
show that it shall avail him as payment against the assignee
who has neither inquired of him about the state of his in-
debtedness nor given him notice of the transfer. There is
not the shadow of a reason to confine the doctrine to bonds
and not to mortgages. It is a principle of sheer justice, and
has been applied to assignments of judgments: Fisher v. KnoXy
13 Pa. St. 622. The defendant had satisfied the mortgage by
I>a3ring and taking up the paper to which it was collateral.
This he had a right to do. He did not become the debtor of
the plaintiff by notice of the assignment before doing this,
and of course not afterwards by force of the assignment alone.
There is an implied covenant in the words of assignment, unless
controlled, that the assignor will not receive the money on the
instrument assigned, but if he does he will pay it over to the
assignee. Of course, this is the assignee's only security until he
gives notice to the obligor: Bury v. Hartman^ 4 Serg. <fe R. 175.
If he has lost here for want of notice, the assignor is his only
resort.
We see nothing to correct in this record, and the-^judgment
is affirmed.
A3SIONHZNT OF MoRTGAOE: See Pardee v. Lindley, 83 Am. Dec. 219, note
224; Nichols v. Lee, 82 Id. 57, note 59, where other caaes are collected; Central
Bank V. Ccpeland, 81 Id. 697, note 602.
* MORTOAOB, WHERB CONSIDEBED AS MeBS SlSUUKlTV: See DvUon V. Wot'
Mkauer, 82 Am. Dec. 765, note 775, where the cases are collected; Timms t.
Bkaiuum, 81 Id. 632.
Reesidb's Exeoutob. V. Rbeside,
[49 Pbnnstltavia State, 822.J
Bbxach ov Dutt Abisiso got 07 Imitjed IJNDEBTAKDra TO x>o Acnr Rb-
QmRino Skill or fidelity may be the subject of an action of asamnprii
upon the implied promise, or of an action upon the special case for the
tort. The breach of duty, and not fraud, is the foundation of the ac-
tion.
AflXNT Who, ha vino Received Monet ot his Prinoipal to Periorm
Certain Trust, Wholly Omits to perform his duty, and converts the
money to his private use, thereby renders himself liMe to an action ess
delietOf or to an action of aasumpsU for money had and received to the
&04 Bbbside's Executor v. Reeside. [Penn.
use of the plaintiff. Bat where he actually eaters upon and perf anna
the duties of the trnst, neither of such actions will lie a^jaiiiat him for
the recovery of an alleged balance of money so intrusted to him. The
remedy against him is by action of acooont render, or by bill in equity.
When 'Bbomjsr, '^rrvTouM ob Ikflud, Involves Duty oj Dirbct Fat-
ICKNT to the plaintiff auumfmU is the proper form of action; but where
the duty is not direct^ but one of outlay in the performance of a trust
or business which from its nature requires an exhibit of the sums ex-
pended before the direct duty can arise, the legal requirement is to
render an account, and aatmnptU will not lie until the balance be ascer-
tained.
WmcRB EzEOUTRix Depositb Monet, fob Pubposb ov Patinq hsb Tb-
tatob's Debts, with an agent, who enters upon the duties of the ageoic^,
and becomes her subetitate in the general administration of the estate, a
special action on the case will not lie against him for an alleged nnex«
pended balance of money intrusted to him by her.
Action on the case by Mary Reeside, executrix of James
Reeside, deceased, against John E. Reeside. The declaration
alleged that the plaintiff, as such executrix, had five hundred
thousand dollars, fiinds of the estate of said deceased, which
she delivered to the defendant, to be by him employed in pay-
ing the indebtedness of said estate, and to return the balance,
if any, to the plaintiff; that the defendant received said som
for the purpose of said trust, and entered upon the employ-
ment of settlement, but notwithstanding his duty in that
behalf, he misconducted himself therein, and fraudulently
appropriated the said sum to his own use, and has refused
and still refuses to apply and appropriate the same to the
purposes of settlement of said estate, and to return to the
plaintiff the balance, to her damage in the sum of eight hun-
dred thousand dollars. Plea, not guilty. The court below
granted a nonsuit. The other facts appear from the opinion.
William L, Hirst and W. J. McElroy^ for the plaintiff in
error.
Samud H. a/nd Samuel C PerkinSf for the defendant in
error.
By Court, Aqnew, J. In theory, the declaration of the
plaintiff is faultless. There is no doubt where a duty arises
out of an implied undertaking to do an act requiring skill
or fidelity that a breach of the duty may be the subject of an
action of assumpsit upon the implied promise, or of an action
upon the special case for the tort: ZM v. Arnold, 2 Pa. 292;
Hunt V. Wynn, 6 Watts, 47; McCahan v. Hirst, 7 Id. 175; Todd
r. Figley, 7 Id. 542; McCall v. Forsyth, 4 Watts & S. 179; Smith
March, 1865.] Rbbside's Executor v, Bebside. 505
V. Seward^ 3 Pa. St. 842; Burnett y. Lynch^ 5 Bam. & C. 609.
The breach of duty, and not fraud, is the foundation of the ac-
tion. If, therefore, this were a case where the agent, having
received the money of his principal to perform a certain trust,
had wholly omitted to perform his duty, and converted the
money to his private use, the entire breach of duty no doubt
would expose him to an action in form ex delicto^ or to an action
of astnimpsit for money had and received to the use of the
plaintiff.
But the misfortune of the plaintiff's case was that her proof
transcended the terms of her declaration. She succeeded in
proving, not only that the defendant had received the money
she had committed to his charge, and that he was her agent,
and had undertaken to pay the money over to the creditors of
the estate she represented, but also that he was in fact her
substitute in the general administration of that estate, receiv-
ing all the moneys and making all the payments in the settle-
ment of a very large and complicated business, involving
settlements, compromises, and various transactions with the
creditors of the estate and the claimants of the fund specially
procured from the government. She proved that, being in-
capable of business herself, she committed everything to his
hands. It is clear that the proof, instead of showing a violation
of the duty involved in the undertaking of the defendant to
administer the estate as her agent and substitute, proved the
contrary, and that he had performed that duty to a very large
extent, entitling him to an allowance for fees and expenses
incurred in the service, and all payments made in pursuance
of his trust. As a necessary and legal consequence, he had a
right to settle an account of his transactions to show perform-
ance of this duty, so far as he had fairly and legally executed
it. In this respect, it is manifest that his case runs in exact
parallel with hers. Is there any good reason why her admin-
istration of the fund should be the subject of a settlement and
account, and not of an ordinary action of aaaumpaitf Pre-
cisely so it should be with him, for all that she could settle as
executrix he did as substitute and agent. Now, throwing out
of view the peculiar features of the laws which make her
amenable to the orphans' court and compel her to settle an
account of her administration, if a common-law action could
be appUed to her, it would not be assumpaitj which is founded
on the express or implied promise to pay over the fund to those
representing the succession, but an action based upon the
606 Rbbsidb's Ezecutob v, Rebsidb. [Penn.
duty to account and exhibit the payments to creditors stand- |
ing in a higher right, and the expenses of administration, be- |
fore the balance can be struck. This would be the action of
account render. Between her and her agent or substitute, who
undertook not to pay the fund directly to her, but to others
duly entitled, upon the exhibition and settlement of their
claims, the duty is precisely the same, to wit, to render an ac*
count. She is not entitled to the fund as her own, but to an
account of it, which inyolves the consideration and adjudica-
tion of the rightfulness of the claims of those standing in a
superior degree, and the regularity of their payment.
This, I take it, is the true ground of distinction in such
cases by which we determine whether the action should be
asmmprit or account render, to wit, the duty to pay or to ac-
count,— a distinction inhering in the very nature of the under-
taking itself. When the promise, expressed or implied, inyolves
the duty of direct payment to the plaintiff, assumpsit is the
proper form of action; as where a co-obligee or co-tenant re-
ceives the whole sum to which both are entitled: GfiUis v.
McKinneyy 6 Watts & S. 78. But where the duty is not direct,
but one of outlay in the performance of a trust or business
which from its nature requires an exhibit of the sums ex-
pended before the direct duty can arise, the legal requirement
is to render an account, and assumpsit will not lie till the bal-
ance be ascertained. Such is the case of a partner transacting
the business of a firm, or of a bailiff managing an estate:
McFadden v. Sallada, 6 Pa. St. 287; Bredin v. Dwen, 2 Watts,
95. The question is not, as it is sometimes supposed, whether
a jury can as conveniently settle the account as auditors, but
it adheres to the right of the defendant to render his account
before he can be molested by an action to refund. The law
will not imply a promise to repay before his liability to refund
has been ascertained. The right to render an account and
settle exists in the very nature and equity of such a duty as
this defendant assumed.
Tliese reasons show the fallacy of selecting the ten-thousand-
dollar and thirteen-thousand-dollar items as a ground of re-
covery ex delicto. They are a part of the fiind received, and
necessarily stand in the account. Whether the defendant will
be entitled to a credit therefor must depend on his right to
retain them. Here the reasons of fault or fraud why he should
not will have their weight; and if he cannot retain, they will, as
a part of the fund, continue to stand in the account against him.
May, 1865.] Fibmstone v. Mack. 507
It IB said the action of account render is inconvenient and
cumbrous. This is true, but it is remedied by the act of the
13th of August, 1840, giving a bill in equity in all cases where
the action of account render has been the accustomed remedy.
It wafr in the power of the plaintiff to go into chancery, but
she preferred an arrest of the person of the defendant, and
triierefore resorted to an action in form ex delicto. Being mis-
taken in this, the judgment must be affirmed.
TOET MAT BB WaIVBD, AND AB817MP8IT MaDITAINBD, WHBN: See Boldk
r. PaUen, 71 Am. Deo. 626^ note 627, where other oaaee are ooUected.
Thb prifcipal casb is DismrauxBBBD in Wagner ▼. PeUrmm, 83 Pa. St.
FlBMSTONB V. MaOE.
[49 PiNMSTLyAiriA Stats, 887.]
Ophl JuBiSDionoR ov Aldbrmbn axd JusncBs aw Pbacb, bbino Cbb-
ATBD BT Statdtb, Can have no extent beyond what the atatates pre-
Bcribe, and mnst be meaaored strictly by atatate law.
Aatutb ExTENDDfa JuRiBDicnoN IN Attachmbnt Exxcdtion to Aldbb-
MBN and justices of the peace, having expressly provided that wages of
laborers and salaries shall not be liable to attachment in the hands of the
employer, the wages of labor and salaries mast be regarded as excepted
oat of the grant, and jniiadiotion in snch cases withheld.
AOBEBICBIIT BT LaBORBB TO WaIVB PROVISO OV StATUTB EzEMFTINO
Wages from attachment, embodied in a note signed by him, is void.
Attachment execution by W. H. Mack against Patrick
-Sheaban and wife, in which William Firmstone and E. Bock-
^well were summoned as garnishees. The court below ren*
dered judgment in favor of the plaintiff against the garnishees.
The facts appear from the opinion.
M. H. JoneSy for the plaintiff in error.
H. D. MaxweU and E. J. Foxy for the defendants in error.
By Court, Woodward, C. J. The act of assembly of the
16th of April, 1845 (Purd. 603), was supplemental to the act
relating to executions of the 16th of June, 1836 (Id. 431), and
extended the jurisdiction of aldermen and justices of the peace
to attachment executions. This form of execution, first in*
troduced by the act of 1836, was confined to the common
pleas until the act of 1845 brought it within the jurisdiction
of the inferior magistracy. The civil jurisdiction of alder-
tnen and justices of the peace, having no common-law root,
608 FiRMSTONE v. Mack. [Peniu
and being planted only by statutes, can have no extent beyond
what the statutes prescribe; and hence our custom always
has been to measure it strictly by statute law. The first sec-
tion of the act of 1845 confers jurisdiction in attachment exe-
cution, but the proviso of the fifth section declares that '^ the
wages of any laborers, or the salary of any person in public
or private employment, shall not be liable to attachment in
the hands of the employer."
Regarding this act of assembly as conferring a new jurisdic-
tion on aldermen and justices of the peace, it is obvious be-
yond all controversy that wages of labor and salaries are
excepted out of the grant; that the new jurisdiction is not to
extend to them; that, as to them, aldermen and justices are
to possess no more powers than prior statutes conferred. The
office of a proviso is to save something out of the generality
of the enacting clause; and in this instance, the only rights
and credits saved are wages of labor and salaries, but be-
cause saved, no jurisdiction over them was conferred.
It is not difficult to discern the reasons which influenced
the legislative mind in enacting the proviso. Doubtless they
meant it should operate as an exemption law for the benefit of
the families of laborers and salaried officers, and quite likely
they had in view, besides the very inconvenience pointed out
and lameoted by the judge below, that of manufacturers and
other large employers being harassed with attachment execu-
tions from neighboring justices of the peace, complicating
accounts, accumulating costs, and depriving them of the labor-
ers on whom they depended, by diverting wages from the cur-
rent support of the laborer's family to the paying of former
debts.
The legislature having thus expressly withheld jurisdictioi>
over the subject-matter, the only remaining question is, Caa
the debtor confer it by agreeing in writing to waive all objec-
tion to its exercise? In general, consent of parties cannot
confer jurisdiction, and in respect to statutory tribunals of
limited and restricted jurisdiction, it would be going very far
to say that parties may confer power which the legislature had
expressly withheld. The note of Sheahan on which the
justice rendered judgment waived the rights, benefits, and
privileges of the act of assembly of the 9th of April, 1849,
commonly called the exemption law; also ''the act of assembly
which exempts money due for labor done from collection by
attachment." This, though not an accurate description of the
May, 1865.] Fibmstone v. Mace. 509
act of 1845, is a sufficient reference to the proviso, and was
meant to be a displacement or repeal of that part of the stat-
ute. Notwithstanding the legislature have said wages of labor
shall not be attached by justices of the peace, Patrick Sheahan
has said his wages may be, and then the question recurs, Has
the justice the power?
Treating it as a matter of jurisdiction, no argument that op-
poses itself to the act of assembly can have footing to stand a
moment; but may it not be likened to the personal privilege
conferred by the exemption act of 1849, and which we have
decided may be waived? Without any very great refinement,
distinctions may be taken between the act of 1849 and this
proviso in the act of 1845; but still it is the popular and per-
haps the fairest mode to regard them both as exemption stat-
utes which confer upon the debtor an option. That he may
waive this option under the act of 1849 not only results out of
the nature of the thing, but has been expressly declared in
many cases; in some, however, with regrets expressed that we
did not set out with a different construction, and hold the
privilege or option indefeasible. If it were res Integra, if, with
the experience and observation we have had, we were now for
the first to pass upon the question whether debtors could
waive their rights under the act of 1849, or widows theirs
under the act of the 14th of April, 1851, we would be very
likely to deny it altogether, and to stick to the statutes as they
are written.
And here we have a new case. We have never decided that
a debtor may repeal the proviso of the act of 1845, and public
policy pleads strongly against such a decision. If we make it,
we bring on the litigation which has sprung out of our decis-
ion upon the act of 1849, — the inconveniences to employers,
before adverted to, and the temptation to weak debtors to beg-
gar their families in behalf of sharp and grasping creditors.
We will not, therefore, strain the proviso to fit it to our con-
struction of the exemption statutes, but will leave it to its
natural operation as it is expressed. The legislature having
said that justices shall not attach wages, we will say they shall
not, though a particular debtor has said they may. It is to
be observed that the garnishee has rights in the premises, and
he is under the act of assembly, but is not a party to the agree-
ment which his laborer makes with a creditor. Why should
be be annoyed and subjected to costs, bis work hindered, and
his bands deprived of their daily bread by an agreement be-
510 Abbott's Executob v. Rbevbs. [PexuL.
tween others to which he was not a party, and of which he had
no notice? Why should such an agreement be made a rule off
law to garnishees instead of a statute wliich they knew of
when they made their business arrangements and employed
their laborers, and which they had a right to expect would b»
administered as it is written?
We think, on the whole, that our duty will be best performed
by declaring the agreement to waive the proviso void, and thai
the justice had no jurisdiction to attach the wages of Sheahan^
And now, to wit. May 11, 1865, this cause having been
argued and considered, the judgment rendered in the case
stated by the court of common pleas of the county of North-
ampton is reversed, and judgment is here entered for tha
garnishees, defendants below, for costs.
EZXMFTION VBOM BZXOUTION, WHlPrimt MAY VM WAIVED BT Ck>HTBAart
See Kneetie ▼. Kewoombf 78 Axil Doc. 186, note 190, where other caaes are ool-
leeted; Bowman ▼. Sndle^f 72 Id. 738, note 741, where this snbject is db>
eoBsed at length.
Abbott's Exeoutob v. Beeves.
[49 PSimSTLyANIA Statb, 494.1
Ir Taosm Gomiotb Brxagh gw Trust bt Loamino Assbib of Tbubt t»
a third person, the latter is bonnd to indemnify the tmstee; and if be
has the tmst property tn tpede, a oonrt of equity will compel him to r»>
store it to the trustee from whom he borrowed it.
All Fukdr ow Ebtatb nr Hands or Ezxcutob abb Trust Fuima, and if
loaned by him to others with a knowledge of the fiu^ are trost fond*
in the hands of the borrowers, who most repay them to the trastee^
whether they were loaned properly or not.
Bill in equity hj Charles H. Abbott, surviving executor of
Timothy Abbott, deceased, against David Beeves, Samuel J.
Reeves, Robert S. Buck, and Samuel Whitaker, late trading
as Reeves, Buck, & Co., the Girard Bank, the American Fire
Insurance Company, and the Pennsylvania Company for In-
surance on Lives and Granting Annuities, to compel them to
restore and return to the complainant, as such executor and
trustee for the legatees, securities belonging to the estate of
said deceased, which were loaned to Reeves, Buck, & Co. for
a specific purpose, which has been fulfilled. A general de-
murrer was filed to the complainant's bill. The court below
gave judgment for the defendants on the demurrer. Othei
facts are stated in the opinion.
ICay, 1865.] Abbott's Exscutob i^. Reeves. 511
Eli K, Price and J. B. TotDnsend^ for the appellant.
E. Spencer MiUer^ for the appellee.
By Court, Read, J. The rule in equity is well settled that
if a trustee commits a breach of trust by loaning the assets of
the trust to a third person, that individual is bound to in-
demnify the trustee, and if he has the trust property in speciey
he will be obliged by a court of equity to restore it to the
trustee fix>m whom he borrowed it. It is the interest of the
eefftui que trust that this should be the law, for he then has two
securities, — the liability of the defaulting trustee, and the
trust property itself, restored to the person in whose custody
the law places it. Lord Langdale, in answer to an argument
that a testator having concurred in the breach of trust was
equally liable with the defendant, and therefore it was not
competent for him in his lifetime, and it was not competent
for his representatives now, to apply to the court to be relieved
from the consequence of his breach of trust, asked this ques-
tion: " Can there be any doubt that if two persons concur in
a breach of trust, and one alone derive the profits, the other
has a right to relief against him?" In Greenwood v. Wake-^
ford, 1 Beav. 576, where the trustee of a marriage settlement
concurred in a breach of trust by lending the fund to the hus-
band on a security not warranted by the settlement, it was
held that the representatives of such trustee could maintain
a bill against the husband and the other cestui que trust for
the restitution of the fund. *' There was,'* said the master of
the rolls, " a clear demand arising from a breach of trust, in
which their testator, it is true, had concurred, but in whicli ho
had concurred for the use and convenience of Mr. Wakeford,
the husband. I own I am rather surprised to find it alleged^
even in argument, that persons placed in the situation of these
plaintiffs are not entitled to apply to this court for relief, for
at any moment a bill might have been filed against them by
the wife or daughter, by their next friends, calling on them, as
representing the estate of the testator, to replace that which
had been lent to Mr. Wakeford, the husband; and I conceive
it to be clear that they had a right to proceed against the hus-
band for the purpose of having the matter set right." In
Booth V. Boothj 1 Id. 125, the same doctrine was enunciated,
and the interest of a cestui que trust who concurred with a
trustee in a breach of trust was held liable to indemnify the
trustee. The master of the rolls said: " That the widow con-
512 Abbott's Executor v. Reevbs. [Penn.
curred seems to be quite clear, and any interest to which she
may be entitled is the proper fund to resort to in the first
instance. If she has obtained any benefit from the breach of
trust, the trustee ought to be compensated in respect of it."
In Fuller v. Knightj 6 Beav. 205, this doctrine is carried still
further, for there it was decided that a trustee cannot by con-
tract waive his right to resort to the life interest of a tenant
for life for the purpose of replacing a trust fund which, in
breach of trust, he has lent to the tenant for life. " What is
asked is this: that the trustee shall be prevented applying the
life estate in making good the breach of trust; and thus leave
to chance the reparation of the breach of trust, by confining
the remedy to the personal liability of the trustee or the es-
tates of the deceased trustee.
''I cannot reconcile myself to the notion that this is a
course which this court could pursue. The court being ap-
prised that a breach of trust has been committed, and ^hat
the trustee is desirous of repairing it, is required, for the ben-
efit of other persons, to prevent his doing so, to withdraw the
substantial means of reparation of the breach of trust, and to
leave the wife, who is now under the dominion of the husband,
to her remedy against the trustees.
" The question really comes to this: whether the trustee has
done or could do, or would be allowed by this court to do, an
act which would fetter his power of doing his duty. His first
obligation was to perform the trusts; he had concurred in
committing a breach of trust, and the instant he found he had
done so, was it not his duty to repair it? And could he be
permitted, in violation of his duty, to do an act for his per-
sonal benefit by which he deprived himself of the power of
performing his duty?
^'I have no, recollection of any such case as this; at the
same time, it does seem to me that even if the trustee had en-
tered into a direct covenant, these plaintiffs would not be per-
mitted to require him to perform it, if it appeared that by its
performance the security of the cestui que trust would be les-
sened."
In Raby v. Ridehalghy 1 Jur., N. S., 363| in the court of
appeal in chancery, Lord Justice Turner used this language:
''And the effect, I apprehend, of the cestui que trustent for life
being liable to refund must be that as the loss which ought to
fidl on those who instigated the breach of trust has been laid
by the court upon the trustees, the trusteeB are entitled to
Hay, 1^65.] Abbott^b Exxcutob v. Rbevbs. 613
Btand in the place of the cestui que trueteni in remainder, for
the pnrpoee of recovering as against the cestui que trusterU for
Ufe, who instigated the breach of trust, or their estates, the
benefit actually received by them in consequence of such
breach of trust. It seems to me to be the necessary conse-
quence of the cestui que trustent for life having received the
income of the trust fund unduly invested, that the trustees
have a right to be indemnified as against the cestui que trust'
ent for life, or their estates, to the extent to which those estates
have been benefited by the improper investments."
In Payne v. Colliert 1 Ves. Jr. 170, and Franco v. Franco^ 3
Id. 75, similar principles are stated, and in the latter case the
lord chancellor said: "The demurrer ought to be overruled,
and with costs; and I cannot help marking in strong terms
my disapprobation of such a demurrer, which can be put in
only for delay, and to cover a person guilty of a breach of
trust, and to defer the time at which he ought to answer."
In Ling v. Colmany 10 Beav. 375, the master of the roUs,
Lord Langdale, says: " It is said the widow concurred in the
breach of trust, and that she is answerable. This may be so,
and Colman may file a bill to obtain the benefit of the equity
against her. Moreover, the funds set apart for the widow are
in his hands, and he may refuse to part with them without
being indemnified." The same doctrine is laid down in
Hcrsley v. Fawcett, 11 Id. 567; Bridget v. Hames, 1 Coll.
(28 English Ch.) 72; Robinson v. Evans, 7 Jur. 739; AUen v.
Knighty 5 Hare, 272; Ferguson v. AppUnhite, 10 Smedes & M.
801^ Morey v. Forsyth, Walk. Ch. 465; Calvert on Parties, 17
Law Lib. 212-214; Smith's Chancery Practice, 227, 228; ffill
on Trustees, 544; Lewin on Trusts, 768, 97 Law Lib.
In McOachen v. Dew, 15 Beav. 84, 15 Eng. L. & Eq. 97, the
point is directly decided, for in that case the trustees were
held liable for a breach of trust to the cestuis que trust, and
the person benefiting by the breach of trust was held liable
to the trustees. The cases of Cresswell v. Dewell, 10 L. T.,
N. S., 22, and Webster v. Le Hunt, 8 Jur., N. S., 345, bear on
the general subject; and in Rolfe v. Gregory, 11 Id. 98, decided
by Lord Westbury on the 18th of January, 1865, it was held
''that the transaction, therefore, between these two defendants
was a fraudulent abstraction of the trust property by Bolfe,
and a fraudulent receipt and appropriation of it by Gregory
for his own personal benefit. This wrongful receipt aad con-
version of trust property place the receiver in the same sitoa-
▲m. dbc vol. lxxxviu-^
614 Abbott's Ezxcutob v. Bbsvbs. [PeiuL
tion as the trustee from whom be received it." Upon tbi
ground of fraud, the receiver was held liable to the cesiuU qm
trusty and that the statute of limitations did not apply to ihm
fraud was concealed from the parties interested.
The proposition, therefore, with which the opinion com-
menced is fully supported, and the only question is its appli-
cation to the case before us. In Pennsylvania, an executor b
emphatically a trustee, having no other interest than in his
commissions, and what may be directly given to him by ths
testator. All funds of the estate in his hands are trust fonds^
and if loaned by him to others with a knowledge of the £Eusti
are trust funds in the hands' of the receiver, and whethar
loaned properly or not, must be repaid to the trustee.
In the present case, an exhibit, which is made part of ^tm
bill, shows that the defendants borrowed this loan and stodc
as a part of the assets and estate of Timothy Abbott, fiom
his surviving executor, the plaintiff, for the purpose of bor-
rowing money on them to sustain their credit, with a distinct
promise and agreement to restore and return the said asseti
and securities to him or his successor in the trust of exe-
cuting the said will. Part has been returned; the remaining
part, freed from all claims, is in the possession or control of
the defendants, who decline to fulfill their own agreement, and
seek without any consideration to hold these trust funds.
In the light of these well-settled principles of equity and
common honesty, they must return and restore this loan and
stock, with all interest and dividends thereon, and not already
received by the plaintiff. It is but proper to say that but one
of the authorities used in this opinion was cited on the argu-
ment at nisi priu9 or before the supreme court, and it is emi-
nently proper in all cases in equity that the court should be
furnished with all the authorities bearing upon the question.
And now, May 16, 1865, decree dismissing the bill reversed,
and demurrer overruled; and it is further ordered and decreed
that the Girard Bank assign and transfer on the books of the
Lehigh Coal and Navigation Company three thousand doUais
of the loan of the said company, and for which they had
given a power to transfer to D. W. C. Smith, to the plaintiff^
that the American Fire Insurance Company assign and trans-
fer on the books of the said Lehigh Coal and Navigation Com-
pany ninety-six shares of the stock of said company standing
in their name to the said plaintiff, and if assigned to Reeves^
Buck, & Co., that the said Reeves, Buck. <b Co. do forthwith
Jane, 1865.] McEbbn i^. Coinmr of Nobthaxptqh. 616
assign the same to the plaintiff; that the Pennsylyania Com-
pany for Insurance on Liyes and Granting Annuities assign
and transfer on the books of the said Lehigh Coal and Navi-
gation Company one hundred shares of the stock of the said
company standing in their name to the said plaintiff; that
the said Reeves, Buck, & Co. assign and transfer on the books
of the said Lehigh Coal and Navigation Company 104 shares
of the stock of the said company standing in their names to
the plaintiff, who is entitled to receive all the before-mentioned
loan and stock, with all interest and dividends thereon not
already received by them; and that said Reeves, Buck, & Ca
shall forthwith withdraw all notices to the said company not
to pay the same to the said plaintiff, and shall forthwith assign
and pay over to the said plaintiff all of said loan and stock
in their possession, or under their control, and all interest and
dividends received by and for them on the whole of said loan
and stock.
Tauarm mat MAurrAnr AonoN iob Possnsnm aw Tedct BsiAxa: Sm
Canmiitkmen ▼. Waiher, 38 Am. Deo. 433.
EzscuTOB IS Trustee ts Pbnnstxvahia. All fandB of the estate in his
hands are trost fnnds, and if lent by him to others with knowledge of the
facts they are tnut fnnda in the hands of the borrower, and whether loaned
properly or not, must be repaid to the tmstee: MeOcmdloi'M BsUUe^ 61 Pa. St.
12, citing the principal case.
The frikgipal case is cited in Nom8*§ Appeal, 71 F^ 8t 124^ and ia
Brman'$ EttaU, 8 Phila. 202, to the point that the posseesian of a tmstee oan>
not be adTerse until he has done some open, tmeqiiivooal act denying tha
right of the eeatud que irtuL
MoKjjbn V. County op Northampton,
[49 Pbhnbtltaxia State, 619^1
Taxenq Powsa Bests upon Recifbooal Dotibb of PRononov ixm
Support between the state and the citiaen, and the ezolnslTe sovereignty
and jniisdiotion of the state over the persons and property within its ter»
ritory. And every citizen of the state^ and all the property aooompany*
ing his person, or falling legitimately within its territorial Jnrisdiotioo,
is snbject to this power.
ijmEREST OP Stockholder in Stock op Corporati0H ib Prbsonal* and is
snbject to the law of his domicile.
Capttal Stock op Manupacturino Gorporahok Logixid in Avotbbi
State, owned by a citisen of Pennsylvaniai is taanbU in the latter stale
for state and county pnrposes.
616 ICOEXXN V. COUNTT OF NOBTHAMPTOK. [PeillL
Amtcablb adJOQ by the county of Northampton against
James McKeen. The defendant owned 472 shares of the cap-
ital stock of the corporation mentioned in the opinion, which
the assessor returned as liable and subject to taxation for state
and county purposes, and the defendant appealed from this
assessment to the county commissioners. The court below
gave judgment for the plaintiff. Other facts are stated in the
opinion.
E. J. Fox and ff. D, MavweU^ for the plaintiff.
0. H. Meyers and C. (?. Beitel^ for the defendant.
By Court, Aonew, J. James McEeen is the owner of 472
shares of the capital stock of a manufacturing company in-
corporated under the laws of New Jersey, doing business and
holding its property in Warren County in that state. McEeen
himself is a resident of Easton, Pennsylvania, and the ques-
tion is, whether his stock is taxable here for state and county
purposes.
The taxing power rests upon the reciprocal duties of protec-
tion and support between the state and the citizen, and the
exclusive sovereignty and jurisdiction of the state over the per-
sons and property within its territory. In McCtdlough v. State
tf Maryland^ 4 Wheat, 487, Marshall, C. J., remarks of the
taxing power: ''It is obvious that it is an incident of sover-
eignty, and is co-extensive with that to which it is incident.
All subjects over which the sovereign power of a state extends
are objects of taxation; but those over which it does not extend
are, upon the soundest principles, exempt from taxation."
Story, in his Conflict of Laws, section 19, says: " The sover-
eign has power and authority over his subjects, and over the
property which they possess within his dominions": See Id.,
sees. 18, 20.
The defendant below being a citizen of this state, it is clear
he is subject personally to its power to tax, and that all his
property accompanying his person, or falling legitimately
within the territorial jurisdiction of the state, is equally within
this authority. The interest which an owner of shares has in
the stock of a corporation is personal. Whithersoever he goes,
it accompanies him, and when he dies, his domicile governs its
succession. It goes to his executor or administrator, and not
to the heirs, and is carried into the inventory of his personal
eflects. When it is argued, therefore, that the foundry, ma-
chine-shop, and other estate of the corporation, being within
June, 1865.] McEbxn v. County of Nobthampton. 517
the state of New Jersey, are subject wholly to the same exclu-
sive state jurisdiction there which we claim for this state over
property within its territory, another ownership is stated, and
a new issue introduced. But to that property the defendant
below has no title, his title being in the shares he holds, and
not in the property of the corporation. No execution against
him there would sell a spark of right to it, nor would his heirs
at law succeed to any estate in it. Unqueetionably, it may be
taxed as the property of the corporation in New Jersey; but
the ownership there is that of the corporatioD, the legal en-
tity, and not of the natural persons who own the shares of its
stock.
The stock of individuals may be controlled, to a certain
extent, in New Jersey, to make it liable to the claims of their,
domestic creditors, or legatees and next of kin. Even ancil-l
lary administration may be granted there to preserve the
estate for resident claimants. But even then the residue of
McEeen's stock would be remitted to the executors or admin-
istrators of the domicile in Pennsylvania, and the right of
succession would be governed by our laws; thus proving that
though local authority may attach to the stock for special
purposes, its ownership has its legal situ» at the domicile of
the owner. There is abundant authority for this: Moihland v.
Thornburg, 3 Penr. & W. 185 [83 Am. Dec. 71]; Miller's Estate^
8 Rawle, 312 [24 Am Dec. 345]; Stokely's Estate, 19 Pa. St.
476; Dent's Appeal, 22 Id. 514.
Another feature is noticeable. In the exercise of the au-
thority to tax, the proceeding is personal only. Though
different kinds of property are specified as the subjects of tax-
ation, it is not as a proceeding in rem, but only as affording
the means and measure of taxation. The tax is assessed per-
sonally, and the means of enforcement is a warrant against
the person of the owner and any property he has, whether
taxed or not: Act 15th April, 1834, sees. 20, 21; Purd. 1861,
pp. 938, 939.
We have authorities directly upon this question deciding
the principle, though upon a different species of tax, — the
collateral inheritance tax: In re Shores Estate j 23 Pa. St. 63.
The decedent, a resident of Philadelphia, owned half a million
of dollars in stocks and corporations of other states, and bonds
of the state of Kentucky, and a bank deposit in New York;
aU were held to be subject to the collateral inheritance tax
here. Oibson, C. J., opens his opinion by stating: '^That
518 Hopkins v. Comuonwealth. [Pqeui.
Mr. Short's property out of the state subjected him to per-
sonal liability for taxes assessed on it here in his lifetime is
not to be doubted. The general rule is, that the dtua of per-
sonal property follows the domicile of the owner of it, inso-
much that even a creditor cannot reach it in a foreign country,
except by attachment or some other process provided by the
local law; certainly not by a personal action, without appear-
ance or something equivalent to it." To the same effect is
the case of Hood^s Estate^ 21 Id. 106, the difiference of domicile
merely leading to an opposite result.
The court below was right in entering judgment for the
whole amount of the taxes, state and county. The question
of liability for county taxes is disposed of in the opinion just
read in the case of Whitesell v. Northampton CowrUy^ 49 Pa. St.
526.
Judgment affirmed.
Shares of Stock in Cobporation, Taxation ov: See PeopU ▼. WoHhkig'
iov, 74 Am. Dec. 86, note 95, and cases cited.
Shares of Stock in Foreign Ck)BPO£ATioN are Taxable in State
WHERE Owner Resides: See note to OUy qf New AUxvny ▼. Meekin, 66 Am.
Dec. 527, where this subject is discussed; Seward y. CUy of Biamg Sun, 79
Ind. 354; Imuranee Co, <ifN, A. ▼. CommomoeaUh, 87 F^ St I8i, both dtiog
the principal case.
The fbincipal case is giced in Huntanger ▼. PkUadelpkia Coal Co., 11
Fhila. 610, and in Commonwealth v. Standard Oil Co., 101 Pa. St. 148^ to the
point that the interest which an owner of shares has in the stock of a corpo-
ration is persons], and when he dies, his domicile governs its saooessioiL
Hopkins v. Commonwealth.
[60 Pennsylvania State, 9.]
SuTBEMX Court of Pennsylvania has No Powkb in Capital Cabb to
Review Points not Taken in Coitbt Below nor filed of record, but
is confined to exceptions taken on the trial to some qnestioii of evidenos
or law, or to an opinion of the court below upon a written pointy which,
with the decision, must be filed of record as in civil cases.
Threats Made bt Pbibonxb Few Minutes beiobx Commibsion ov Cbim:^
"that he would kill somebody before twenty-fonr hours," are admissible
in evidence, to show malice prepense, to convict the prisoner of murder
in the first degree, although they were not expressly directed to the
deceased.
Bmtbt in Coubt Minutbs ov "True Bill" is Sxtrioiknt Bboobd of the
finding of the grand jury.
Ikdictment for murder. On Sunday, January 16, 1864, a
drunken broil prevailed among the marines and Bailors on
1865.] Hopkins v. Commonwealth. 619
board of the United States supply steamer Bermada, in which
the prisoner, William Hopkins, had taken part. The prisoner's
conduct had heen so violent that he had been placed in irons
tor several hours. When released, he resumed his quarrelsome
conduct, and in a contest which ensued, he stabbed and killed
m passenger, Andrew McMarity. On the trial, the common-
wealth offered to prove by one John Oalbraith that fifteen
minutes before the killing of McMarity the prisoner threatened
that he would kill somebody on board of the vessel before
twenty-four hours, and hallooed his threats all around the
deck. The defendant objected to the admission of this evi-
dence, but the objection was overruled. The defendant was
convicted of murder in the. first degree. The errors assigned
ave stated in the opinion,
David Paul Brown and John A. OwenSy for the plaintiff in
CRor.
WiUiam B. Jfann, district attorney, for the commonwealth.
By Court, Woodwabd, C. J. The argument in this case was
not limited to the single exception to evidence which appears
vpon the record, but extended itself to the construction of the
act of 1794, in respect to the distinction between murder in
ihe first and murder in the second degree. The court below
lias very properly sent up all the evidence, in order that we
night the better judge of the admissibility of the one piece
cscepted to, and counsel improved the opportunity to argue
at large that upon the whole evidence the prisoner ought, at
noet, to have been convicted only of murder in the second
degree, although the record exhibited no prayer for a direction
to that effect, and no exceptions to such instructions as were
given.
Upon such a presentation of the case it becomes necessary
that we define with precision our appellate jurisdiction in
capital cases, lest on the one hand we withhold from the ac-
cused what may seem to be his rights in this court, or on the
ether hand we be betrayed into the decision of a very grave
question of law which in no proper sense and legal form has
been submitted to us.
By both the acts of assembly of the 22d of April, 1722, and
the 16th of June, 1836 (Purd. 928), appellate jurisdiction was
conferred upon this court to hear and determine all manner of
pleas, plaints, and causes which should be removed or brought
kere from the inferior courts, and to examine and correct all
620 Hopkins «. Commonwealth. [Penn.
manner of errors of the justices and magistrates in their judg-
ments, processes, and proceedings, as well in criminal as in
dyil pleas or proceedings, and according to the old act of
1722, to affirm or reverse; but according to the act of 1836, to
affirm, reverse, or modify the judgments, decrees, or proceed-
ings thus brought up. This power to modify final decrees and
judgments is constantly exercised in civil cases, and was
exercised in a criminal case in Commonwealth v. Darnels^ 7
Pa. St. 875.
The "plaints, pleas, causes, proceedings, judgments, and
decrees " mentioned in the acts of assembly are the ordinary
proceedings of what are technically csdled courts of record, and
the writ of error, which is the common-law instrument of re-
moving the record of one court into a court of higher jurisdic-
tion, lies only upon matters of law arising upon the face of the
proceedings. Hence, therefore, the appellate jurisdiction con-
ferred by the aboye-named acts of assembly was Umited
necessarily to the correction of errors appearing of record. By
the forms of the common law, the incidents of the trial do not
appear in the memorandum, which in England is sometimes
called the posteay and sometimes the nisi privs roll, and with
us, the court minutes or docket entries. Neither the testimony
of witnesses, nor the opinion of the court upon questions of
evidence, nor the charge of the court, ever appeared on these
court minutes or docket entries, and therefore never were' at
common law, and but for statutes never would have been, re-
movable by writ of error.
But the statute of 2 Westminster, 18 Edw. I., c. 81, was ex-
tended to Pennsylvania, and it gave us bills of exceptiolL
" When one that is impleaded before any of the justices doth
allege an exception, praying that the justices will allow it^
which, if they will not allow, if he that alleged the exception
do write the same exception, and require that the justices wiU
put to their seals for a witness, the justices shall so do, and if
one will not, another of the company shall.''
Here was the legislative authority to add to the component
parts of a judicial record, as it is defined by the common law,
those incidents of the trial in which damaging errors might
lurk, but for which the injured party had no redress at com-
mon law, except by appeal to the second thought of the same
court in which the error occurred. But the statute of 2 West-
minster was held not to extend to criminal cases; at leasts
such appears to be the better opinion in England: See tbft
1865.] Hopkins v. Commonwealth. 521
oases cited in 2 Bac. Abr., tit. Bill of Exceptions. And such
was certainly the opinion of this court in MiddUtonh Caae^ 2
Watts, 286, and in Sampson's Caae^ 5 Watts & S. 887.
In criminal cases, therefore, our appellate jurisdiction stood
as at the common law until the act of the 6th of November,
1856, amended and supplied by the act of the Slst of March,
1860 (Purd. 260), which gave defendants, upon the trial of any
indictment for murder or voluntary manslaughter, the right to
except to any decision of the court upon any point of evidence
or law, which exception shall be noted by the court, and filed
of record as in civil cases. And if the court shall be required
by the defendant to give an opinion upon any point submitted
and stated in writing, the court is required to answer the same
jEully, and file the point and answer of record. A writ of error
may then be allowed, if specially applied for within thirty
days to the court in bank if in session, and to a judge at
chambers if in vacation.
In this manner our appellate jurisdiction in capital cases
has been extended and regulated. We had jurisdiction of the
records in such cases from 1722; but we had no power to re-
view what was not any part of the record until this act of
assembly of 1860, and it is a plain and necessary inference
that our powers under the act of 1860 are limited to the con-
ditions prescribed by the legislature.
The trial must be for murder or volimtary manslaughter.
We would have no i)Ower by virtue of this statute to award a
writ of error in any other criminal case. There must be an
exception to a decision of the court upon some point of evi-
dence or law, or to an opinion of the court upon a written
pointy and the decision and the point must be filed of record
as in civil cases. Have we power to review points first made
in this court, and not taken in the court below nor filed of
record? Clearly not; no more than we would have power to
apply the statute to other crimes than those mentioned; no
more than we would have had power to notice any bill of ex-
ceptions in a criminal case before the statute.
We are not at all inclined to a hypercritical construction of
an act of assembly which, though of questionable expediency,
and never acceptable to some of the best thinkers in the legal
profession, was evidently intended to be another security of
human life; but accepting the enactment according to its
plain letter, and giving it the full scope the legislature meant
it should have, we cannot doubt that our powers, though en-
'522 Hopkins v. Commonwealth. PPenn.
•targed by it, are limited to the correctioii of such errors in the
specified cases as are patent upon the face of the record, or
which have been superadded to the record in the manner pre-
-scribed by the statute.
- As there was no prayer for instruction in regard to the act
•of 1794 on the trial of this cause, no point submitted, either
orally or in writing, touching the degrees of murder, and no
exception to anything delivered by the learned judge on the
subject, is it not manifest beyond all controversy that to ob-
trude our discussion of the point suggested in argument would
be an impertinent interference with the established course of
administering criminal law? Nor is there any necessity for
us to repeat our views of the statute of 1794 in a case that does
<cot call for them, for they have been frequently expressed,
4ind especially in a very satisfactory manner by my brother
Thompson, in Kelly's Case, 1 Orant Cas. 491. This is enough
to say of the main ground assumed in argument.
It is time now to attend to the questions that are up for re-
view. After the commonwealth had given evidence of the
principal circumstances of the killing, they proposed to prove
by John Oalbraith, the witness on the stand, what threats the
prisoner made, and what he said shortly before the occurrence.
I state the question as it stands in the bill of exception, for
if there was error it consisted in allowing that particular
<|uestion to be answered. In the argument, the court's note of
the ofier made by the district attorney was discussed as if the
•error was in that, but the court may have loosely noted the
verbal ofier of the district attorney, or he may have loosely
<lescribed it, and it is not very important whether an ofier in
just those words were admissible or not, because the colloquy
between the court and the counsel was not the evidence ad-
mitted, and did not enter into the question addressed to the
witness. The error, if any, was in receiving the answer to the
precise question which was addressed to the witness, and our
•question is, Was there error in that?
To get at the state of the prisoner's mind, and to show that
iie harbored revengeful and murderous passions, it was com-
petent to prove his threats at or about the time of dealing the
deadly blow. It was part of the res gesUs. '' Upon an inquiry,"
*flays Mr. Greenleaf, vol. 1, sec. 108, ''as to the state of mind,
sentiments, or disposition of a person at any particular period,
his declarations and conversations are admissible. They are
«part8 of the res gesUe^
1865.] Hopkins v. Commonwealth. 623
A drunken broil between marines and sailors prevailed on
shipboard. The prisoner's conduct bad been so violent that
he had been in irons several hours the day of the killing, and
when released his turbulent and quarrelsome conduct was re-
sumed. Less than an hour before the mortal stab was given
to McMarity, the prisoner declared he would kill somebody
before twenty-four hours; he hallooed it all around the deck,
says a witness. Now, it was of material consequence that the
commonwealth, who sought to convict the prisoner of murder
in the first degree, should give evidence of a premeditated
purpose, a formed design to kill or to do some great bodily
harm; for without malice prepense, there could be no convic-
tion of the higher grade of murder.
Nor was it necessary that the premeditated malice should
have selected its victim. If the jury believe that the prisoner
had formed the deliberate design to kill somebody, and in
pursuance of that purpose, within an hour after declaring it,
did kill McMarity, the commonwealth had a right to insist
upon his conviction of murder in the first degree, and that
they might thus insist, they had a right to prove his declara-
tion an hour before the deed. Blackstone ranks '* antecedent
menaces" and "former grudges" as evidences of malice pre-
pense; and he tells us, moreover, that malice prepense is not
BO properly spite or malevolence to the deceased in particular,
as any evil design in general the dictate of a wicked, de-
praved, and malignant heart. The witness said he heard no
threats against McMarity, but this made his testimony none
the less admissible, for a killing anybody in pursuance of the
malicious purpose which the general threat evidenced was
murder. We conclude, therefore, that there was no error in
admitting the evidence contained in the only bill that was
sealed.
Another error is assigned, not arising out of a bill of excep-
tion, but as a defect in the record, to the efiect that it does not
appear that the finding of the grand jury was returned into
court or recorded.
There are respectable authorities to the point that the find-
ing of the grand jury should be recorded, and that an omission
in this respect cannot be supplied by an indorsement of the
foreman, nor by the recital in the record that the defendant
stands indicted, nor by his arraignment and plea of not guilty.
The recording of the finding of a grand jury is said to be as
essential as the recording of the verdict of the petit jury:
524 Hopkins v. Commonwealth. [Penn.
Wharton's Crim. Law, Sd ed., p. 237, and the cases cited in
notes.
In our practice, the grand jury return their bills to the
court, whose clerk notes on the court's minutes the title of
each bill, and the finding, "ignoramus," or " true bill," as the
case may be. This is the recording of the finding. ' The body
of the indictment is never recorded, and however well it might
be in some instances to have a record copy to supply what
sometimes happens, a loss of the bill from the files, or to de-
tect an interlineation or other tampering with the bill, yet
there is no rule of practice that demands it, and the want of
it, even in a capital case, is no ground of error. The record
in this case was made up in substantial conformity to the gen-
eral practice. Under date of January 26, 1865, the title of the
bill was noted upon the court minutes, together with the num-
ber and term, and the crime charged, and then followed "true
bill," which we understand to have been the return of the
grand jury of that indictment; and this was the recording of
the return, so that there is no more ground for this assignment
of error than every criminal record in the commonwealth
might present.
None of the errors assigned having been sustained, the judg-
ment must be affirmed.
KnjJNQ MUST BB PREMEDITATED TO Ck>NSTrrUTE MlTBDXB IV FIB8T !>■-
OBSB: See State ▼. Johuon, 74 Am. Dec 321; Keenan ▼. CommonweaWi, 84
Id. 414; Maker ▼. People, 81 Id. 781, and the notes thereto.
Threats by Prisoner are Admisscbub to Show Maugioub Ihtbnt ts
Prosbcution for Murder: Durrn ▼. SUUe, 35 Am. Dec 64; and see Siaie ▼.
Johneon, 35 Id. 742. The principal case is quoted in State v. ffoyt, 47 Conn.
639, to the point that remote and obscare aUosions to an act in contempla-
tion, made before the commission of a crime, are admissible against a person
on trial for the crime, to show an existing disposition or design; but it was
distinguished in Abemethy v. CommonweaUh, 101 Pa. St. 328, in holding that
threats to kill one person, uttered by a man who later in the same day shoots
another person, are not admissible to prove premeditation, when at the time
the threats were nttered the person making use of them had a quarrel with
the particular person threatened only, and the oontention leading to the
shooting had not occurred with the deceased. As to the admissibility of
threats made by the deceased, see Campbell v. People, 61 Am. Dec 49, and
note; Keener ▼. State, 63 Id. 269; Dithes v. State, 71 Id. 370.
The frinoifal case is also cited in Orant v. Commonwealth, 71 Pa. St.
607, tSchoeppe v. ComrnonweaUh, 66 Id. 64, to the point that when error is al-
leged to any portion of the charge of the court or ruling on pointa of evidence
or of law in a criminal case, it cannot be brought to the notice of the sapreiiM
tourt otherwise than by bill of ezo^tioiifli as in civil cases.
1865.] Appbal of Elliott's Ezbgutobs. 625
Appeal op Elliott's Exboutobs.
fW PsmfBTLTAiriA 8tatk» 76.]
AmomfERT 07 Pouodb of Lifk Insurancs by Insoltbiit Dibiob, in
tnut for the benefit of Mb wife, is frandnlent and void as against hiii
creditors.
Appeals \>j the executors of Isaac Elliott, deceased, and by
Joseph A. Clay, representing certain creditors of Elliott, from
a decree of the orphans' court of Philadelphia confirming the
auditor's report. Elliott, who was hopelessly insolvent at the
time, and so continued until his death, took out in his own
name four policies of insurance on his life, in four different
companies, each in the sum of ten thousand dollars. One of
these policies was not assigned, and its proceeds passed into
the accounts of the executors; but the other three, effected
February 12, March 2, and March 3, 1859, in the Interna-
tional Life Assurance Society of London, the Manhattan Life
Insurance Company of New York, and the New England
Mutual Life Insurance Company, respectively, were assigned
by him September 10, 1859, to J. Thomas Elliott, " in trust
for the only use and benefit of my wife, Eliza T. Elliott, her
heirs and assigns." Notice of the assignment was given as
required to two of the companies, but not to the International
Society, since its policy expressly permitted an assignment
without notice. Elliott died two months after he assigned the
policies. The auditor charged the executors with the amount
of the policy of the International Society, because no notice of
the assignment of that policy had been given, but declined to
charge them with the amount of the two other policies. The
court confirmed the auditor's report, and the executors ap-
pealed from the first branch of the decision, and the creditors
from the second.
C. OuUloUf for the executors.
R. C. McMurtriey E. Spencer Miller ^ and Joseph A. Clay, for
the creditors.
By Court, Read, J. Policies of assurance against fire and
against marine risks are both properly contracts of indemnity,
the insurer engaging to make good, within certain limited
amounts, the losses sustained by the insured in buildings,
ships, and effects. But '^ the contract commonly called life
assurance, when properly considered, is a mere contract to
pay a certain sum of money on the death of a person, in con-
626 Appeal of Elliott's Executors. [Penn.
sideratioti of the due payment of a certain annuity for his life;
the amount of the annuity being calculated in the first in-
stance according to the probable duration of the life; and
when once fixed it is constant and invariable. The stipulated
amount of annuity is to be uniformly paid on one side, and
the sum to be paid in the event of death is always (except
where bonuses have been given by prosperous offices) the
same on the other. This species of insurance in no way
resembles a contract of indemnity." This is the measured
language of Baron Parke, now Lord Wensleydale, a very learned
judge, in delivering the unanimous opinion of the court of ex-
chequer chamber, in Dolby v. India and London Life Assur-
ance Company^ 15 Com. B. 365, on the 2d of December, 1854^
reversing and overruling the decision in OodsaU v. Bolderoj
9 East, 72. In this case, which is now the settled law of
England, it was held that, independent of the act of 14 Greo.
III., c. 48, as to assurances of lives, all contracts for wager
policies, and wagers which were not contrary to the policy of
the law, were legal contracts at common law; and that under
that statute, if there was an interest at the inception of the
policy, it was not necessary that it should exist when it be-
came payable.
Life assurance, as by a Gallicism it is called in England,
commenced there upwards of a century and a half ago, and
in 1859 there were 159 companies, comprising proprietary
companies based upon a paid-up or promised capital, for
which interest is paid upon shares; mutual societies, founded
upon the asserted sufficiency of the premium fund; and mixed
companies, proceeding upon a combination of both principles.
As a broad principle, large companies can afibrd to be generous,
and the Equitable boasts that it has never '' but in two in-
stances disputed a claim out of its numerous and vast engage-
ments," and that is remarkable for a society that has paid
away in all forms twenty-nine millions sterling, or one hun«
dred and forty-five millions of dollars. Policies in good offices
after five or seven years' standing are always salable, and a
considerable number are sold by auction every year. "We no-
ticed," says the Edinburgh Review, of January, 1859, "the ad-
vertisement of sale of a sale in Dublin of twenty-seven policies
of assurance in various offices. It is worthy of remark that
they generally find purchasers at fair values when effected in
the first-class offices. The offices themselves will state the
value of their own policies for a fee; and the common practice
1865.] Appeal op Elliott's Executors. 52T
is to obtain the office value, and that of an independent ao*
tuary, before the sale."
The business of life insurance, as we call it, has beei^
largely extended within the last few years in the United
States, by companies both foreign and domestic. In the case
before us, the decedent effected four policies on his life in four
distinct companies, each in ten thousand dollars. One of
these was not assigned, and its proceeds have passed into the
accounts of the executors; all the other policies, three in
number, which were effected on the 12th of February and 2d
and 3d of March, 1859, were, on the 10th of September in the
same year, by assignments on the respective policies, assigned
to '* J. Thomas Elliott, in trust for the only use and benefit of
my wife, Eliza T. Elliott, her heirs and assigns"; and to twa
of the companies notice of the assignments was given in due
form by Mr. Elliott, the decedent, agreeably to their rules,
but no notice was given to the International Life Assurance
Society of London, that company not requiring such notice
of the assignment; the three documents remained together in
his fire-proof, and were there found after his death in Novem*
ber, 1859. The auditor charged the executors with the Inter*
national policy, but refused to surcharge them with the other
two policies, which report was confirmed by the orphans^
court, from which the executors have appealed as to the sur-
charge of the one policy, and Mr. Clay has appealed from the
other part, declining to surcharge them with the other twe
policies. I am inclined to think, under the decision of the
lords justices, reversing the master of the rolls, in In re Way8*»
TruatSj 34 L. J. Com. P. 49, S. C, 10 Jur., N. S., 1166, that alt
these assignments stand on the same footing, notice of the as*
signment to the trustee or to the company in the case of the
International being unnecessary. These assignments were alt
voluntary, and would have been good against heirs, devisees,
or legatees, but here the decedent died insolvent, and the ques-
tion is. Are they good against creditors? These policies were
securities for money, valuable choses in action which could be
sold at public and private sale, and are included in the gen-
eral words "personal estate or property," and would pass un-
der that head by deed or will. The words used in the statute
of 13 Eliz., c. 5, are " goods and chattels," which is the generic
denomination of things personal as distinguished from things
real, or lands, tenements, and hereditaments, and therefore in-
cludes life insurance policies, although unknown at the time
628 Appeal of Elliott's Executors. [Penn.
of the passage of the statute; and it is dear that the vol-
untary assignments in the present case did disturb, hinder,
delay, and defraud the creditors of the decedent. In Eng-
land, in the later cases, it has been held that unless the
property conveyed can be reached by execution, the convey-
ance is not fraudulent, because it does not delay or hinder
creditors, — a very narrow and inequitable rule, and contrary
to the earlier cases as held by Chancellor Kent: 1 Story's Com.
868.
By an act of 1 & 2 Vict., c. 110, passed the 16th of August,
1838 (14 Stats, at Large, 950, 951), under a j!. /a. the sheriff
may seize money or bank notes, checks, bills of exchange,
promissory notes, bonds, specialties, or other securities for
money; and in Stokoe v. CowaUy 7 Jur., N. S., 901, life policies
are regarded as securities for money, and a voluntary convey-
ance of them was held fraudulent as against creditors under
statute 13 Eliz., c. 5. But in Norcutt v. Doddy 1 Craig & P.
100, it was held, in a case unaffected by the statute of 1 & 2
Vict., c. 110, that a voluntary alienation of the property by
a party who at the time of such alienation was insolvent may
be set aside in a suit by his assignees subsequently appointed
under the insolvent debtors' act, although the subject of such
alienation be a chose in action. Lord Chancellor Cottenham
said: ''This being an assignment of a chose in action, and
the debtor being still living, the transaction is not fraudulent
under the statuto of Elizabeth alone, but under that contract
taken in connection with the insolvent debtors' act, I am of
opinion that it is. The difficulty which arose upon the statute
of Elizabeth with respect to voluntary assignments of choses
in action was, that during the lifetime of the debtor creditors
could not be said to be prejudiced by them, inasmuch as that
species of property was not subject to be taken in execution;
but after his death it was otherwise, because then the cred«
itors might reach all his personal property, of whatever kind;
and the same reason applies when the debtor has brought
himself within the operation of the insolvent debtors' acts,
because under those acts all his property becomes applicable
to the payment of his debts." This is also the case in bank-
ruptcy, so that assignees in bankruptcy and in insolvency, and
executors or administrators of an insolvent, may, as repre-
senting creditors, set aside any fraudulent conveyance of any
property of the bankrupt or insolvent, whether it be liable to
execution in his lifetime or not. In Pennsylvania, under the
1865.] Appeal of Elliott's Exeoutobs. 529
mixed jurisdiction of oar courts, it is settled that the ezeoa*
tor or administrator of an insolvent estate may set aside a
firaudulent conveyance, as he is in such a case a trustee for
creditors.
Mr. Justice Rogers, in Penrod v. JIf orrwoti, 2 Penr. A W. 180,
said: ''Although Mitchell could not collect his debt hjfi.fa,^
and levy as a chose in action is not the subject of execution,
yet satisfaction might have been attained by compelling Mor-
rison to assign for the benefit of his creditors."
These three assignments of the three policies which are the
subjects of the appeals before us were therefore all fraudulent
as against the creditors of the decedent, and his executors
must be surcharged with the other two in addition to the one
with which they were surcharged in the court below.
The testator was hopelessly insolvent in 1859, and for some
time previous. The insurances were effected in February and
March of that year, assigned on the 10th of September follow-
ing, he dying two months afterwards, when the policies be-
came due and payable. The assignments do not appear to
have been known to the trustee or cestuis que trust, certainly
not to his creditors, who were apparently first aware of his
situation by the developments succeeding his decease. We
can therefore have no difficulty in holding these assignments
fraudulent and void, and that the proceeds of the policies be-
long to the creditors and estate of the decedent
We are to be understood in thus deciding this case that we
do not mean to extend it to policies effected without fraud
directly, and on their face for the benefit of the wife, and pay-
able to her; such policies are not fraudulent as to creditors,
and are not touched by this decision.
The effect is to reverse so much of the decree of the court
below as does not charge the accountants with the two other
policies, and leaves undisturbed the only one already charged
to them, and the part of the decree as to commissions and
other charges. This dismisses the appeal of the executors,
and Clay's appeal is successful so far as relates to the proceeds
of the two policies, and no further.
This cause came on to be heard, and was argued by counsel,
and thereupon, upon consideration thereof, it is ordered, ad-
judged, and decreed as follows: That the decree of the orphans'
Gonrt confirming the report of the auditor be reversed, so far
as it refuses to charge the executors of Isaac Elliott, deceased,
with the sums received from the Manhattan life Insurance
Ax. Dig. Vol. LXXXVm~M
630 Appeal of Blliott's Executors. [Penn.
Company of New York and the New England Mntnal Life
Insurance Company upon their respective policies of insur-
ance upon the life of the said Isaac Elliott And that the
executors be surcharged with the said sums with interest from
the date of receipt. And further, that the remainder of the
said decree of the orphans' court be affirmed; and the cause
is remitted to the said orphans' court to carry this decree into
e£fect. The costs of the appeal in the said orphans' court and
in this court to be paid out of the fiind for distribution.
In Clay's appeal the decree was: This cause came on to be
heard, and was argued by counsel, and thereupon, upon con-
sideration thereof, it is ordered, adjudged, and decreed as fol-
lows: That the decree of the orphans' court confirming the
report of the auditor be reversed, so far as it refuses to charge
the executors of Isaac Elliott, deceased, with the sums re-
ceived from the Manhattan Life Insurance Company of New
York and the New England Mutual Life Insurance Company,
and that the executors be surcharged with the said sums with
interest from the date of the receipt. And further, that the
remainder of the said decree of the orphans' court be affirmed,
and the cause is remitted to the said orphans' court to carry
this decree into effect. The costs of this appeal in the said
orphans' court and in this court to be paid out of the fund for
distribution.
WirHDRAWAL BY DSBTOB 07 MONEYS lOR LdV InSITRANGB^ WHJPriiEE
Fraud on his Cbeditobs. — Independently of legislation on the enbjeel^
and applying the principles of the common law to the qnestion, there can be
no doubt that the withdrawal of moneys for the purpose of effecting life
insurance on the life of the debtor, either for his own benefit or for the
benefit of his wife and children or other relatives, would be considered a
fraud on his creditors in all cases where a like withdrawal for any other pur>
pose would be regarded as a fraud upon them. We have been unable to find
any case in which this precise question has been decided, but there appears
to be no valid reason for drawing a distinction between moneys applied to
effecting life insurance and moneys sought to be placed beyond the reach of
creditors by any other means. And although there are few, if any, cases in
which it has been directly decided that moneys applied by a debtor in failing
or insolvent circumstances in effecting insurance on his life for his own benefit
or for that of his wife and children may be reached by his creditors and
applied to the payment of his debts, there are many cases in which it has
been held that an assignment of a policy of insurance upon the life of the
debtor, made by him to his wife or children at a time when he was insolvent^
without consideration, is fraudulent and void as to his creditors, and that the
proceeds of such policy may be reached in equity by his creditors and aabjaoted
to the payment of his debts: Bliss on life Insurance, 2d ed., seo. 81S; Stotoi
V. Cowan, 29 Beav. 637; Caidd9ig» v. Manlove, S9 Miss. 666; Chapmim v. Me-
1865.] Appeal of Elliott's Executors. 531
Tborath^ TJ Mo. 88; S. 0., 46 Am. Rep. 1; BurUm v. Farhtholt, 86 K. C. 260;
^tna Nathnal Bank ▼. Manhattan L. Ins. Co., 15 Ins. Law J. 235; ^tna
Natkmal Bank ▼. United Btatea L, Int. Co., 15 Id. 239. In Cluxpman v. M>
llwrathf mipra, it was decided that a husband may orally assign to his wife a
policy of insurance on his own life, unless the aeaigmnent was made with i$Uent
to dtframd creditors. And in McOord ▼. Noyes, 3 Bradf. 139, it was said that
an aasignment, {f JraudMleni as to creditors, is invalid only to the extent of
their daima.
Whbthxb Poligib of Lm Insubahgb ob tuub Pboouds may bi
BxACHED BT Cbxditobs. — When a person effects a policy of life insurance in
his own name, which is by its terms assignable, and of which he is the owner,
his creditor may maintain a bill in equity to reach snch policy, and apply its
proceeds to the payment of the debt: AnikracUe Ins. Co. ▼. Sears, 109 Mass.
883. Where a person takes ont a policy of insurance on his life, the amount
of which is to be paid to his daughter in case he should die before he attains
the age of forty-five years, but to be paid to himself if he attains that age,
if he attains the age of forty-five the amount of the policy will be payable
to him, and will then be subject to the payment of his debts: Levy v. Van
Hagen 69 Ala. 17. If a husband insures his life to obtain credit, and after
paying the first and second premiums ceases to make payments, and a creditor
thereafter keeps up the payments until the debtor's death, he will be entitled
to the proceeds of the policy to the extent of his debt; and the debtor's
widow and heirs will be entitled to the residue: Rison v. WiJberson, 3 Sneed,
665. In Landrum v. Enowles, 22 K. J. Eq. 594, a wife effected an insurance
on the life of her husband for the benefit of their children. After paying
several premiums, she and her husband assigned the policy in payment of his
debt, and she thereupon ceased to make payment of the premiums, but the
creditor kept up the policy by paying the premiums. After the death of the
insured, the children filed a bill claiming the whole of the proceeds; but it
was held that they were entitled only to the value of the policy at the time
of the assignment, and that the residue of the money due on the policy
should be paid over to the assignee. In Stokes v. Coffey, 8 Bush, 533, S. C,
Bigelow's L. & A. Ins. Cas. 585, moneys received on a policy on the life of a
husband for the benefit of his wife, where the premiums were paid by him
when insolvent, were held to be applicable to the payment of his creditors.
But in the subsequent case of Thon^son v. Cundiff, 11 Id. 569, the same
court declared a different doctrine. In the latter case, an insolvent husband
took out two policies of insurance in the name of his wife, and the court
held that in the absence of fraud on the part of both husband and wife, the
interest in the policies vested in the wife as her sole and separate property,
notwithstanding her husband was insolvent at the time he effected them,
and that the most that the creditors could recover was the amount of the
premiums paid by him during the period of his insolvency, with interest
thereon. In thecase of Ptdlis v. R6bis(m, 73 Mo. 201, S. C, 39 Am. Rep. 497,
it was held that a statute of that state, authorizing any married woman to
insure her husband's life for her sole use, free from the claims of his creditors^
to an amount purchasable by annual premiums not exceeding three hundred
doUars paid by him, does not prohibit such insurance of a solvent husband's
life to any amount; and if part of the premiums exceeding that sum are
paid by him when solvent^ and part when insolvent, the proceeds will be dis*
tribated between the widow and the creditors, in the proportion that the
premiama paid l^ him when solvent bear to those paid by him after he be-
came insolvenl This is the rule of distribution approved by Bliss: BUss en
532 Appeal of Elliott's Executobb. [Peniu
Life Insurance, sec. 353. Bat as we shall see farther on, it is not the rale
adopted by the majority of the coort nor by the legisUtnres of those staiea
which have legislated apon the sabject.
Statutes Authobizing Ihsdraitob vdb BxinaTr or Wm ahi> CmiDBxir.
— In nearly if not quite all of the states of the Union, statutes have been passed
authorizing an insurance to be made on the life of a husband for the benefit of
his wife, or of his wife and children, and providing that the proceeds of such
insurance shall go to the beneficiaries free from all claims of the creditors of the
insured. The English statute of 33 & 34 Vicft., o. 93» known as the married
women's property act, provides that a policy of insurance effected by a mar-
ried man on his own life, and expressed on its face to be for the ben^t of his
wife, or his wife and children, shall not be subject to the control of the hus-
band or to his creditors, or form part of his estate. These statutes are held
to be in the nature of exemption laws, and are liberally construed: Feam v.
Ward, 65 Ala. 33; Felraih v. SchonfiM, 76 Id. 199; S. C, 52 Am. Bep. 319;
Chapin V. Fdlowes, 36 Conn. 132; Pace v. Pace, 19 Fla. 438; Wppmffer v. Ca^.
nepa, 20 Id. 262; Cole v. Afarple, 98 Dl. 58; S. C, 38 Am. Bep. 83; EIUoUy.
Bryan, 64 Md. 368; Bamahaw v. Stewari, 64 Id. 513; 8vxm v. Stww, II Allen,
224; Ghuld v. Emerwn, 99 Mass. 154; meker v. Charter Oak L. L Co., 27 Minn.
193; S. C, 38 Am. Bep. 289; Baker v. Yottng, 47 Mo. 453; MeCord v. Noye$,
8 Bradf. 139; Burton v. FarinhoU, 86 N. C. 260; Jacob v. Continental L, L Co., 1
Cincin. Bep. 519; McCutcheon's Appeal, 99 Pa. 8t. 133; Holt v. Everall, L. B.
2 Ch. Div. 266. Gray, J., in delivering the opinion of the court in Cfould v.
Bmeraon, 99 Mass. 155, referring to the Massachusetts statute, said: "It pro-
oeeds upon the theory that the interest of a man's wife and children in his
life, and his duty to make reasonable provision for their support^ are not
wholly subordinate to the claims of his creditors; and that he may make an
irrevocable settlement of a policy of insurance on his life for the benefit of his
family. The words of the statute are too clear to be misunderstood. Even
'if the premium is paid by any person with intent to defraud his crediton,'
only ' an amount equal to the premium so paid, with interest thereon, shall
inure to the benefit of his creditors.' The security is declared by the statute
to be not merely independent of the creditors of the husband, or of those of
the person effecting insurance, but independent of the husband or the assured
himself. The manifest purpose is not only to prevent the creditors from
reaching the fund by proceedings in law or equity, but to restrain the debtor
from revoking in a moment of caprice or embarrassment the trust which he
has once created upon a meritorious, and by the statute a sufficient, ooxuid*
eration.*' And Wagner, J., in delivering the opinion of the court in Baker v.
Tcwng, 47 Mo. 456, referring to the Missouri statute, said: " It provides for
the inurement of the insurance for the benefit of the wife and children, inde-
pendently of the husband and his creditors. It gives it to the wife, and
allows her to keep and retain it, if she chooses to do so, without molestation.
The creditors of the husband cannot reach it, and deprive her of it against her
consent, nor can the husband intermeddle with it contrazy to her w^" The
Pennsylvania act of 1868 (Purd. Dig. 802), provides that a policy on the life
of a husband bona fide assigned to the wife or children, or any relative de-
pendent upon the assured, shall vest in such wife or dhildien or other relative,
free and clear from all claims of the creditors of the assured. The Maryland
act of 1878, chapter 200, contains a similar provision, and under it it waa held,
in Eamehaw v. Stewart, 64 Md. 513^ tiiat a voluntary assignment of a life
policy, made by a father to his four sons, was valid, and that tiiey held the
prooeeds of the policy free and dear from all daims ol his creditors, «>^i>*— gh
1865.] App&al OS) Elliott's Executors. 538
» bill of sale made by him to one of thoae aons a few days aftqr wa» set aside
as frandolaiit as against his creditors. The married women'a property aot^
33 A; 34 Vict., c. 93, contains this provision: ''If it shall be proved that the
policy was effected and preminms paid by the hnsband with intent to defrand
his creditors^ they shall be entitled to receive out of the snm secnred an
amoont eqnal to the preminms so paid. " The Massachnsetts statute ^^n^^^-^^pf
a similar provision, adding, however, to the sum to be recovered, " with in-
terest thereon." The same qnestion arises where, as is the case in severa]
states, the amount of the yearly premiums is limited to a certain snm, and
the amount of yearly premiums paid is in excess of the amount limited. Li
all the cases, with the exception above stated, it has been held that the
amount which the creditors can reach is the amount of the premiums, or of
the excess of the premiums, with interest thereon: Pence v. ifioubepeoee, 66
Ind. 345; TTiompaonv. Cundigr, 11 Bush, 669; Eataie qf Trough, 8 Phila. 214;
Stigler v. Stigler, 77 Va. 163; Central National Bank v. Hume, 3 McAr. 360;
S. C, 61 Am. Hep. 780. Allison, P. J., in Estate qf Trough, 8 Phila. 217, dis-
cussing this subject, said: ''I think the only possible claim the creditors could
sustain in the premises would be for the amount of premiums paid by Trough
to keep the policy alive after he became insolvent. Whatever sum of money
was appropriated by him to secure this end, which was of right the money of
his creditors, ought to be taken from the fund in dispute, and returned to them
now; but this does not give to creditors any just claim to the remaining part
of the three thousand dollars." This case was reversed in 76 Pa. St. 115, but
on another point. And Howk, J., in delivering the opinion of the court in
Pence V. Makeipeaoe, 66 Ind. 360, said: " The creditor could not, in any event,
derive a profit from or recover aught more than the sums of money actually
paid by tiie debtor in premiums upon a policy of insurance upon his own life
payable to or for the benefit of his wife or any member of his family." And
this seems to be the reasonable doctrine, notwithstanding BUss's opinion, that
the rule adopted in PuBla v. HobUon, supra, should prevail In Cole v. Mar^
pis, 98 m. 68, S. C, 38 Am. Rep. 83, it was held that the wife of a man who
while in insolvent circumstances assigned to her a policy on his own life
shoidd hold the proceeds of the policy, less the premimns, with interest^
which had been paid by him within the statutory period of limitation.
Whebb Wnrs Pats Premiums out of heb Own Sbparatb Eotate, the
whole of the proceeds of the insurance on her husband's life goes to her, free
from all claims of his creditors: Holt v. Bverall, L. B>. 2 Oh. Div. 266; In re
Jturrin, 2 DHL 120; Jacob v. Continental L. L Co., 1 Cincin. Bep. 619.
Whether Proceeds of Husband's Life Insurance Liable to Claims
OF Wife's Creditors. — In Leonard v. Clinton, 26 Hun, 288, it was held that
the amount received by a wife upon a policy of insnvance issued upon the life
of her husband, for her benefit and the benefit of her children, is not subject
to the claims of her creditors. But in Iowa it is held that the proceeds of a
policy of insfirauce are not exempt from the debts of the beneficiary: Smedley
V. Felt, 43 lowBi 607; Murray v. Welle, 63 Id. 256. And in Massachusetts, if a
peUcy is expressed to be for the benefit of the wife, her children have no
interest in it during her lifetime, and her interest in it, after her husband's
death, may be attached by her creditors: Norris v. Massacluuetts M. L. 1,
Co., 131 Mass. 294; Troy v. Sargent, 132 Id. 408.
Whbtbbb Fdleot fob Benefit of Wife can be Assioned by Her. ^
In some states it is held that the wife cannot assign such a policy in the lile-
tima of her husband: Eadie v. Slimmon, 26 N. Y. 9; Barry v. Equitable L, A.
Society, 69 Id. 687; Connecticut Mutual L. L Co. v. Burroughs, 34 Coim. SOS.
634 Coal Co. v. Coal and Navigation Co. [Penn.
Denio, G. J., in delivering the opinion of ihe court in Eadie ▼. SUmmon, Mq9^^
said: "The provision is special and peculiar, and looks to a provision for a
state of widowhood, and for orphan children; and it would be a violation of
the spirit of the provision to hold that a wife insured, under this act^ coidd
sell or traffic with her policy as though it were realised personal property or
an ordinary security for money." Bat the Kew York act of 1873 permits
the wife who has no child to assign these policies by deed: Leonard v. CfBnion,
26 Hnn, 290. In Baker v. Toung, 47 Mo. 453, it was held that the statute of
that state was not intended to deprive the wife of the right to assign snob
policies, where her act was free and voluntary. In Ri8(m v. Wilkereont 3 Sneed,
665, it was held that the Tennessee act by which the proceeds of a policy of
insurance effected by a husband upon his own life inures at his death to the
benefit of his widow and heirs does not deprive him of the right to assign or
otherwise dispose of the policy during his lifetime.
BBNxnoiABY Fund, Payable on Death of Miwbkr of AaaooiATioN to
persons named by him, is not to be treated as part of his estate subject to
his debts, but should be paid directly to the beneficiaries or their guardians:
Supreme CouneUqfC. M, B. A, v. Priest, 46 Mich. 429.
Thb FBZRdPAL GASB IS DiSTiNauiSHXD in McOuicheon's Appeal^ 99 Pa.
St 136.
BuoK Mountain Coal Company v. LEman Coal
AND Navigation Company.
(60 PSKKSYLVANIA STATB, 0L1
finji IN Equitt to Ehtobcb Fxbvobmahgb of Publio Ddtt bt Cobfoba*
TiON CAiTNOT BB Maintainxd by a private person, in the absence of a
special right or authority; nor, in such a case, has the complainant a
right to a decree compensating him for any damage suffared.
BiLi« IN Equity to Compel €k>BPORATioN to Obsebtb its Gbabtbb Obu*
OATiONs CAN BE Maintainbb^ it soems on behalf of the state^ by tba
attomey-generaL
Bill in equity. The facts are stated in the opinion.
J, Cooke^ Longstreth^ and C. OuiUoUy for the plaintiffii in
error.
W, M. Meredith, O. M, Wharton^ cmd 0. Oibbcne^ for the de«
fondants in error.
By Court, Thompson, J. The bill filed in this case sets
forth that; by the act to incorporate the Lehigh Coal and
Navigation Company, passed the 13th of April, 1822, the
Lehigh River, between the points intended to be improved,
viz., between its mouth and the Great Falls, was divided into
two grand sections; the first lying between the mouth of the
river and the Nescohoning Creek; the second between the last-
mentioned point and the foot of the Great Falls; that the
1865.] Goal Co. v. Coal Aia> Navigation Co. 535
entire work, including both sections, hud long been completed
and in successful operation; that on or about the 4th of June,
1862, an extraordinary flood occurred in the Lehigh, whereby
'' the navigation of the defendants, and the dams, locks, and
other devices, were damaged, broken, and partially swept
away,'' rendering the whole of the second grand section en«
tirely innavigable a distance of about twenty-five miles or
more. To compel the company to repair or reconstruct this
portion of their works, and to compensate the complainants
for the loss to them, as a means of transporting coal to marketp
is the object of this bill.
No contract relation of any kind is alleged to exist between
the complainants and defendants; their claim to equitable in-
terposition rests, therefore, alone upon the duty of the com-
pany to keep and maintain these works in good order and
repair, and this presents for consideration the question raised
by the demurrer, whether the complainants have by their bill
presented *' such a case as entitles them in a court of equity
to the discovery and relief prayed for, touching the matters
contained in the said bill," or any of them.
It seems to us they are not the proper parties to enforce this
duty on part of the company to the public, in the absence
of any special injury to themselves or property; and by this
we mean any injury, special in its operation, resulting from a
failure to perform some specified duty to them, or to make com-
pensation for injury and deterioration to their property, as con-
tradistinguished from injury to them in common with the
whole public, in the loss of a convenient and valuable high-
way.
There are many authorities in England and in this country
which deny the right of private parties in their own names, —
in the absence of special laws, — when their interests are only
in common with the public, to compel the performance of a
duty to the public. The reason is, that if one individual may
interpose, any other may, and as the decision in one individual
case would be no bar to any other, there would be no end to
h'tigation and strife. The general laws of order, so necessary
to good government, forbid anything like this.
In King v. Directors of the Bristol Dock Co.j 12 East, 429, the
lord chief justice of the king's bench, a case involving this
question, said: ''The injury, if any, is to all the king's sub-
jects, and that is the subject*matter of indictment, and not of
action, otherwise any person who had before used the waters
636 Coal Co. v. Coal and NavigA'TIon Co. [Pezin.
of the rivers might equally claim compeaBation; for which
there is no pretense." To this effect is Rose v. Miles, 4 Maule
& S. 101; Iveson v. Moore, 1 Ld. Raym. 486. See Thomas
EarWs Case, Carth. 173; Wilkes v. Hungerford Market Co., 2
Bing. N. C. 281; Grierly y. Codling, 2 Bing. 263.
In Bigelow y. Hartford Bridge Co., 14 Conn. 565 [36 Am.
Dec. 602], it was held, per Storrs, J., that a ''bill in equity for
an injunction against a public nuisance will not be sustained
by a private party unless it shows a particular injury to the
plaintiff, distinct from that which he suffers in common with
the rest of the public." So in the case of Councils of Reading
Y. Commonwealth, 11 Pa. St. 196, which was an application for
a mandamus to compel the councils to remove some obstruc-
tions from the sidewalks of a street, charged as a nuisance,
Gibson, C. J., said that ''the obstruction of a sidewalk not
being more injurious to the relators in the mandamus whereby
it is sought to abate it than to the inhabitants at large, the
remedy to attain that end is by indictment exclusively." The
doctrine of this point was also fully discussed by the same
learned judge in Commonwealth v. Burrell, 7 Id. 34. That was
a quo warranto at the suggestion of a private party, and of
this attempt he remarked: "The commonwealth has her own
chosen officer for the protection of her own rights (and the
rights of the whole community are what constitute public
rights, or the rights of the commonwealth), and as she has not
explicitly allowed his office to be assumed by any one who
may please to try his hand at the business of prosecution,
as his self-constituted locum tenens, we dare not assume the
power to allow it." I might largely multiply the citation of
authorities to the same effect, but these will suffice to prove
the principle, and I forbear. It is plain, therefore, that a
private individual may not, in the absence of a special right
or special authority, vindicate the public for the breach of
duties owing to her alone. Nobody will doubt but that he
may enforce against public corporations contracts and duties
which they ought to perform towards himself, and in doing
this, sometimes the public interests are subserved, and this is
all right. But it is his special interest that gives him the
right to act. This might be enough for this case, but it may
not be out of place to add that we have no doubt but the rem-
edy by a bill for an injunction, sued out on the part of the
commonwealth by her attorney-general, would lie against a
company to compel them to observe their charter obligations.
1865.] CojLL Ca v. Coal and Nayioatiom Co. 537
It would in this case be a substitute for a mandamua^ and
come within tlie power given to the courts in equity to control
corporations other than municipal.
If^ then, the complainants have no right to maintain their
bill to enjoin the respondents from neglecting to repair and
put in operation their slackwater navigation, they have no
right to a decree compensating them for any damage suffered.
This right is only incidental to the maintenance of their bill
to control the company in the matter of repairing or rebuild-
ing their works. If they could do that, damages incident to
the non-repair, and proper to be allowed, might, on the prin-
ciple that it arose out of the subject-matter of complaint; and
equity jurisdiction having attached, the whole subject in all its
aspects would be disposed of. But alone, as an independent
ground of complaint and claim, equity would not entertain
a bill; damages merely for all sorts of injuries are only prop-
erly cognizable at law. A decree or decision, therefore, against
the complainapts' right to maintain an injunction is neces-
sarily a denial of his equity to have damages on the accounts
prayed. Upon these grounds, the bill might pioperly have
been dismissed.
It is not necessary to discuss the grounds of the alleged claim
of damages in this case, as the right to them in this proceeding
falls altogether by reason of the views just expressed. Nor is
it essential to discuss the question whether the act of 1818
provided a specific remedy in this case which excludes a
resort to a bill in equity, as we think the whole case is covered
by the views taken. We think the action of the court at niH
priu9 on the demurrer must be sustained, and accordingly the
decree is affirmed, at the cost of the appellants.
BnJi TO COMFBL PSRJOBMAiraB OF PUBLia DUTT BT COBFOBATION. — A
bOl in equity to ocnnpel & oorporation to perform its duties to the pablio is
pbinljT very diffiarant from & suit to restrain a corporation from violating its
charter and its pablio duties, or to enjoin it horn committing a public nui-
sance. While suits of the latter class are unquestionably maintainable, and
are in fact very common, the power of courts of equity to entertain suits of
the former class is not so certain. Any relief which equity might give in
the matter would necessarily be by way of a mandatory injunction; and as
American courts seem to be averse to granting such injunctions in any case,
we might state with confidence, at the outset^ tiiat practically courts of equity
in this country wiU not attempt to compel a corporation to perform its public
duties. The remedy has been denied in a suit on behalf of the people, in
People V. Albany etc JR. R,, 24 K. Y. 261, 267, 269; compare ^<jom^-(7enera/
T. JiaUroad Compamee, 35 Wis. 425, 523; and as far as private persons are
Mooemed, in Shaekky v. Eastern R. JR,, 98 Mass. 93, 94; and see McCatm v.
538 Coal Co. v. Coal and Naviqation Co. [Penn.
yashviUe R, B., 2 Texm. Gh. 773, 776; Boffen Locomotive etc Warit ▼. IBrk
R% 20 K. J. Eq. 379; althoagh it is very tnie that the laogoage is not abso-
lute in Shackley y. EaOem R. R., supra; and see Attomejf-Cfeneral ▼. Railroad
Companies, 35 Wis. 425, 623. A delinquent corporation mnst^ then, be pro-
ceeded against by indictment, mandamus, or quo toarranio: See 2 Moraweta
on Corporations, sec. 1132; People ▼. AJBbanfyete* R, R,, supra; McCfamn v.
NashviUe R. R., supra; 8hach!ey y. Eastern R, R,, supra. In England, how-
ever, the case of AUomey-Oeneral y. Mid-Kent I^y, L. B. 3 Ch. 100, settles
that a corporation may be compelled to perform its obligations to the putiUo
by injunction, at the suit of the attorney-general, Lord CSaims saying: " It
was pressed upon us that there was a sufficient remedy at law by maniaimus,
and that where there is a sufficient remedy at law this court does not inter-
fere by way of injunction. It Ib true that in many cases where the injury
has been trifling, where there has been improper delay, or where the injuzy
is transitory, this court has left the complainant to his remedy at law. m>at
was on the ground that there were two concurrent remedies, an action for
damages and a suit for an injunction, and that damages would meet the jus-
tice of the case. Here the argument is, that the attorney-general could ob-
tain from a court of law a mandamus having the same effect as a mandatory
injunction, and that we are to refuse to interfere in a case where the court
dearly has jurisdiction, merely because the same relief can be had in another
court ": Compare AUomey-Oeneral v. Birmingham etc, R*y, 3 Macn. & G. 453;
8. C.y 4 De Gez k S. 490. Mr. Morawetz thus states the law: " Ordinarily,
a bill in equity is not the proper remedy to compel a corporation to perform
its public duties. But if a corporation should threaten to violate a duty
which it owes to the public, any member of the public who would suffer an
immediate injury, for which there is no other adequate remedy, may restrain
the threatened wrong by injunctioxi. So the state may sue in equity to pre-
vent a corporation from violating its duties to the injury of the public, if
there is no other practicable remedy": 2 Morawetz on Corporations, seo.
1132.
The principal oabb is oitsd in CUy ctf PWadelphia v. CofUne, 68 F^ St.
122, to the point that where a public nuisance results in a private injury it is
the subject of an action by the injured par^ against the wrong-doer; and
see Pittsburgh etc R, R, y. Jones, 111 Id. 212; but where an injury is no
greater to a plaintiff than to the inhabitants at large, the remedy to redress
the subject of complaint is with the public: Cumberland VaUey RaihwidCs
Appeal, 62 Id. 227; so where equity intervenes to restrain acts prejudicial to
the interests of the community, it must be by bill filed by the attorney-gen-
eral, and not by a private party: Sparhawk v. Union Passenger R'p, 64 Id.
421. The principal case is also cited in Shaekley v. Eastern R. R., 98 Mass.
95; Attomey-Qenerdt v. Railroad Companies, 35 Wis. 623, both referred to
above.
1865.] Commonwealth v. Chathams. 639
GOMMONWBALTH V. GhATHAHCL
[fiO TmsvmvAmjL Btjlts, 18L]
JuBT SATS BiOHT DT All Cbdonal Oabss TO FiifD Spioul VwBmor, by
whieh the faatB are pat on the record and the law la nilniiitted to the
judges.
gPBGiAL Vekdiot OF Ju&T DT Obdonal Oasv 18 SuifioiXNT if it flndfl all
the sQbstantial requisites of the charge, without following the technical
language used in the indictment; and it is not necessary that^ after stat-
ing the facts, they should draw any legal oondnsions.
BAma 18 Onx to Whom PoasiasiON of Personal Propzbtt d Intrusted
FOR Tm B, TO BB RsTUBNBP IN Sfbcib, within the meaning of section 108
of the Pennsylvania crimes consolidation act of 1860, proyiding that
" if any person, being a bailee of any property, shall fraudulently take or
conTert the same to his own use," he shall be guilty of larceny.
Dbfendant in ExBCunoN is Bailee, Guilty of Labcent under section
108 of the Pennsylvania crimes consolidation act of 1860, providing that
"if any person, being a bailee of any property, shall fraudulently take
or convert the same to his own use," he shall be guilty of larceny, T^here
his personal property was purchased at the sheriff's sale by the plaintiff
in execution, who permitted the defendant to retain and use it until
demanded, and the defendant, being so intrusted, appropriated it to his
own use.
]jn>icTMENT for larceny. The jury returned a special ver-
dlcty as follows: Thomas P. Cochran obtained a judgment
against the defendant, Samuel Chathams, under which certain
personal property was sold by the sheriff, and purchased by
Cochran. Before the sale commenced, Cochran told Chathams
that he would purchase the property if it did not go above
what he considered its value, and lend it to Chathams to have
the use of it until he, Cochran, saw proper to take it again. The
property was purchased by Cochran, and left in Chathams's
possession. Chathams afterwards sold and consumed the
property, and denied that he had any of Cochran's property.
The court was of the opinion that section 108 of the crimes
consolidation act of 1860, under which the defendant was
prosecuted, should be confined to carriers, and accordingly
directed a verdict to be entered for the defendant.
/. A. ChrUtyy district attorney^ for the commonwealth.
Alexander and Mclntyre, for the plaintiff in error.
By Court, Read, J. The jury have a right, in all cases
whatsoever, whether capital or otherwise, to find a special ver-
dict, by which the facts of the case are put on the record, and
the law is submitted to the judges. It is sufficient if the jury
find all the substantial requisites of the charge, without fol«
640 Commonwealth 9« Chathams. [Pem&
lowing the technical language used in the indictment, and it
does not seem neceesary that the jury, after stating the facts,
should draw any legal conclusion: Chitty's Crim. Law, 642|
644, 645.
The question, therefore, on the present special verdict is,
whether the defendant is guilty of the charge laid in the inr
dictment, which is preferred under section 108 of the crimes
consolidation act of the 31st of March, 1860. In the revision
of our criminal law, our revisers, judges King, Knox, and
Mr. Webster, of course took advantage of the improvements
made in criminal jurisprudence in England, both as to
crimes and procedure within the present century, which have
culminated in seven criminal law consolidation amendment
acts, passed by the British Parliament on the 6th of August,
1861. As the revisers in their seventh title — '* Offenses
against Personal Property" — used largely provisions of the
English criminal statutes, it will not be uninstructive to trace
the origin of some of them, so far as they are in any way con-
nected with the crime charged against the prisoner.
The original act of 52 Geo. III., c. 63 (9th of June, 1812),
was passed shortly after the decision in Sex v. WdUhy Russ.
& R. C. C. 215, S. C, 4 Taunt 258, in which the twelve judges
ruled that the fraud committed by the prisoner upon Sir
Thomas Plumer was not larceny. The prisoner, a stock-
broker, was a member of Parliament, and the prosecutor was
then solicitor-general, and afterwards successively attorney-
general, vice-chancellor, and master of the rolls, and the pro-
ceeds of the fraud became the subject of an action of trover
by the assignees of Walsh, who had become a bankrupt,
against Sir Thomas Plumer, which is reported in Taylor v.
Plumer J 3 Maule & S. 562, and contains a remarkable opinion
of Lord EUenborough, as to following the proceeds of funds
covered with a trust in favor of the principal whenever they
can be identified, expressed in that great lawyer's nervous lan-
guage. *
This act in its preamble recited that ** it is expedient that
due provision should be made to prevent the embezzlement of
government and other securities for money, plate, jewels, and
other personal effects deposited for safe custody, or for any
special purpose, with bankers, merchants, brokers, attorneys,
and other agents intrusted by their customers and employers,"
and then enacted '^ that if any person oir persons with whom
(as banker or bankers, merchant or merchants, broker or bio*
1S65.] Commonwealth v. Chathams. 541
kers, attorney or attorneys, or agent or agents of any descrip-
tion whateoeyer) any ordinance, debenture, ete., shall have
been deposited, or shall be or remain for safe custody, or upon
^or for any special purpose," eto., shall embezzle the same with
intont to defraud the owner, he shall be guilty of misdemeanor.
The second section, in similar language, punishes embezzle-
ment by bankers and others of sums of money, etc., placed
in their hands with orders in writing to invest the same.
This act has been the subject of construction in cases col-
lected in 2 Russell on Cfimes, 192. In Rex v. Prince^ 8 Car.
& P., 12 Eng. Com. L. 512, Chief Justice Abbott held that it
applied only to persons to whom such securities, eto., are in-
trustod in the exercise of their functions or business.
This act was repealed on the 2l8t of June, 1827, and on the
same day was passed the act of 7 <& 8 Greo. IV., c. 29, " for
consolidating and amending the laws of England relative to
larceny and other offenses connected therewith," which had
been prepared under the auspices of Mr. Peel. The forty-
ninth section reads as follows: ''And for the punishment of
embezzlement committed by agents intrusted with property,
be it enacted, that if any money or security for the payment
of money shall be intrusted to any banker, merchant, broker,
attorney, or other agent, with any direction in writing to apply
fliuch money," and he shall convert the same to his own use
and benefit, he shall be guilty of a misdemeanor; and if any
chattel or valuable security, eto., shall be intrusted to any
banker, merchant, broker, attorney, or other agent for safe
custody, etc., and he shall, in violation of good faith, ete., in
any manner convert the same to his own use and benefit, eto.,
every such offender shall be guilty of a misdemeanor. By the
fifth section it is '' provided always, that nothing hereinbefore
contained relating to agente shall affect any trustee or mort-
gagee in respect of any act done by him in relation to the
properly comprised in or affected by any such trust or mort-
gage."
The forty-sixth, forty-seventh, and forty^ighih sections
relate to embezzlement by clerks and servants, and the fifty-
first section relates to factors or agents intrusted for the pur-
pose of sale with any goods or merchandise, etc., for their own
benefit pledging the same, which is modified by the sixth sec-
tion of the act of 6 & 6 Vict., c. 89, passed the 80th of June,
1842. These acts were followed by the act of the 17th of
August, 1857, 20 ft 21 Yict., c. 56, which comprised embezzle-
642 Commonwealth v. Chathams. [PenxL
ments by trusteeB, bankers, etc., penons introsted with pow-
ers of attorney for sale or transfer, bailees, directors, membersi
officers, etc., of any corporation or public company fraudu-
lently appropriating property, keeping fraudulent accounts,
willfully destroying books, and publishing fraudulent state-
ments. This act, which embraces a much wider range of
crime and criminals, is really the basis of our act of the 15th
pf April, 1858, and the consolidation act of 1860.
Our act of 1858 omitted the fourth section of the English
statute, which is in these words: '^ If any person, being a bailee
of any property, shall fraudulently take or convert the same
to his own use, or the use of any person other than the owner
thereof, though he shall not break bulk or otherwise determine
the bailment, he shall be guilty of larceny." This provision
the revisers took, and it makes the 108th section of the act of
1860, which is the subject of this discussion. In England, by
several decisions, they have fixed the meaning of "bailee"
and "bailment" as used in their acts. In Rex v. Hoare, 1 Fost.
& F. 647, Wightman, J., decided that a person who receives
money on behalf of another does not thereby become a bailee
of the money within the meaning of 20 & 21 Vict., c. 54, sec. 4;
and in Regina v. Qarrett^ 2 Id. 14, it was held by Willes, J.,
"that the bailment referred to in the statute is where the
property is to be returned; not one in which different prop-
erty is to be returned." In Qaeen v. Loose^ 29 L. J., N. S.
(Mag. Cas.), 182, where, by the Friendly Societies act, 18 &
19 Vict., c. 63, the property and moneys of the society are
vested in trustees, and money, by resolution of the board, was
given to one of the trustees to take to bank, and he misappro-
priated it, it was held he was not a bailee, though guilty of a
breach of trust.
In Qiuen v. HassaU^ 80 L. J., N. S. (Mag. Cas.), 175, which
was a crown case reserved, in which the two former ones were
cited, Willes, J., said: " My brother Byles was of the same
opinion in a case before him in the Oxford circuit." In this
case it was held that the treasurer of a money club could not
be indicted as a fraudulent bailee under the fourth section of
the act of 1857. Lord Chief Justice Cockbum said: " We are
all agreed that it is abundantly clear that this conviction can-
not be sustained. The indicUnent is framed upon the fourth
section of 20 & 21 Vict., c. 54, which applies to bailees; and
it is only necessary to say the word ' bailment ' must be inter-
preted according to its ordinary legal acceptation. Understood
1866.] Commonwealth v. Chathams. 543
In that eensey a bailment relates to something in the hands of
the bailee, which is to be returned in spedey and does not applj
to the case of money in the hands of a party who is not under
an obligation to return it in precisely the identical coins which
he originally received."
In Queen y. FleUher^ 81 L. J., N. S. (Mag. Gas.), 206, it was
held that the prisoner, who was a trustee, treasurer, and secre-
tary of a sayings bank, was rightly ccmyicted under the same
act of fraudulently appropriating money received from the
depositors, he being a trustee upon an express trust created
by an instrument in writing, since the set of rules of the say-
ings bank was an instrument of writing within the meaning
of the act, and the eighth rule contained an express trust to
invest the moneys for the benefit of the institution, — i. e., the
depositors.
In Queen v. Robsonj 81 L. J., N. S. (Mag. Gas.), 22, it was
held that an innkeeper's wife, breaking open a box containing
money intrusted to her husband's care, and fraudulently tak-
ing the money, might be convicted as a bailee. Martin, B.,
saying: " I do not think it necessary that there should be a
contract of bailment to make a person liable as a bailee. In
my opinion, the prisoner comes within the statute as a bailee
by license." Pollock, G. B.: " I am disposed to be of the same
opinion." The rest of the judges concurred. In Mr. Greaves's
note, page 73, to his edition of the criminal law consolidation
and amendment acts, in speaking of this clause, and of the
decision in Regina v. Hassally 80 L. J., N. S. (Mag. Gas.), 175,
he says: " The object of this clause was simply to make those
cases larceny where the general property in the thing delivered
was never intended to be parted with at all, but only the pos-
session; where, in fact, the owner delivered the property to
another under such circumstances as to deprive himself of the
possession for some time, whether certain or uncertain, and
whether longer or shorter, at the expiration or determination
of which time the owner was to have restored to him the very
same thing that had been so delivered. In order, therefore, to
bring a case within this clause, in addition to the fraudulent
disposal of the property, it must be proved, — 1. That there was
such a delivery of the property as to divest the owner of the
possession, and vest it in the prisoner for some time; 2. That
at the expiration or determination of that time, the identical
same property was to be restored to the owner. Proof of all
these facts wUl be all that is necessary under this clause.
544 Cooper v. Farmers' Mutual Fire Inb. Co. [Penn.
The discussion in Regina y. ffassally mcpra, was clearly right,
and will apply to the present clause."
The construction of this section, therefore, seeoiB to be settled
by the highest judicial authority in England, and we see no
reason why we should not adopt it as a £air and reasonable
interpretation of the words '^ bailee" and *' bailment^" and
which properly punishes an individual who is really more
guilty than the starving woman who steals a loaf of bread.
The language of the judge as to the prisoner's base conduct is
very emphatic: *' We have heard no apology or excuse for the
ingratitude with which he treated Mr. Cochran, who, doubtless
prompted by the kindliest and most benevolent feelings of the
human heart, provided the defendant with the means of sup-
porting himself and family. The defendant has repaid the
kindness of Mr. Cochran as the adder repaid the kind hus-
bandman who warmed it into life."
The court were in error in confining this section to the case
of a carrier, and as the facts found by the special verdict make
the crime of the prisoner larceny under the statute, the judg-
ment is reversed, and record remitted to the court below, with
directions to proceed to sentence according to law.
Thompson, J., dissented, because there is no special verdict
in criminal cases in Pennsylvania, unless by consent of de-
fendant.
Ratt.mknt, What is: See Cluue y. WaMumt 59 Am. Deo. 623, and note;
Pribble v. Kent, 71 Id. 327; CarUale v. WaUace, 74 Id. 207. The principal case
18 cited in Krause y. CammonweaUh, 93 Pa. St. 421, to the point that the word
" bailment," aa nsed in section 108 of the Pennsylvania criminal code of 1860^
must be interpreted according to its ordinary legal acceptation.
Lahgent bt BaHiBSS: See People ▼. CaU, 43 Am. Deo. 666, and note; note
to State Y. HtrniOt 67 Id. 280-282; DignowUty v. State, 67 Id. 670^ 672;
T. Fairdtmgh, 76 Id. 590; Bobmaon ▼. State, 78 Id. 487.
GooPBB V. Farmers' Mutual Firb Ins. Co.
[fiO PnmsTLyAioA Btati, 2M.]
FoLior ov LramtAHCB gahhot bb Rbvobmbd bt Pabol Bvidmob or Mn-
TAEM, it seems, to the extent of altering a wananty.
fOUDT OF iKmrniHCB OAHlfOT BB BbIOBHKD VOB MlBTABB OV IHBDBBD
Ajuxnb; and eyidanoe that the agent of the oompany, who filled oat the
applioation, the repreeentatioas of which were made a wananty, was
also mistaken does not show a matul mistake for whibh the poUoj wiM
benforiaed*
1865.] CooPEB t;. Farmers' Mutual Fire Ins. Co 545
Covenant on a policy of fire insurance on certain machinery
in the plaintiff's factory. The policy stipulated that the rep-
resentations in the application should be a warranty, and that
the application contained a just, full, and true exhibition of
all the facts and circumstances in regard to the condition,
situation, and value of the property insured. The policy
further stipulated that it was made and accepted in reference
to the application, and to the conditions annexed to the policy
and made a part of it, one of which provided that the com-
pany ^* shall in no case be deemed to have waived a full,
literal, and strict compliance with and performance of each
and every of the terms, provisions, conditions, and stipula-
tions," unless such waiver be express, and manifested in writ-
ing, signed by the secretary, before any failure on the part of
the insured to comply with and perform the same shall have
occurred, and that no agent should have power to violate any
of the conditions. The defendant gave evidence to the effect
that a statement made by the insured in the application as
to encumbrances upon the property was untrue. The plain-
tiff, for the purpose of reforming the application, offered to
show by one Theodore W. Herr, the agent of the defendant
who effected the insurance, that Herr asked the questions con-
tained in the application, and wrote down Cooper's answers
thereto; that when Herr asked the question whether there
were any encumbrances upon the property, Cooper told him
that there were certain judgments to the amount of about ten
thousand dollars against him, but added that his real estate
was worth about twenty thousand dollars, and that he did not
know whether the judgments would bind this property, as it
was only machinery; that Herr replied that he was under the
impression that it was not such an encumbrance as was con-
templated, and accordingly wrote down the answer, *'It is
not"; and that Cooper had signed the application without
reading over its conditions and the answers; but the court
rejected the offer. The court instructed the jury that, under
the evidence, they should find for the defendant. The de-
fendant had a verdict and judgment accordingly. The plain-
tiff assigned for error the admission and rejection of evidence
and the instruction to the jury.
0. J. Dickey^ A. H. Hood, D, W, Patterson, and J, B. Living-
ston, for the plaintiff in error.
Thovias E, Franklin and H. M, North, for the defendant in
error.
AM. DKa Vol. LXXXVlII-86
646 Cooper t;. Farmers' Mutual Firb Ins. Co. [Pemu
By Court, Strong, J. The first three assignments of error
are of no practical importance if the court was right in reject-
ing the proffered testimony of Theodore W. Herr, for without
that testimony, unquestionably, the plaintiff has no cause of
action. The defendants undertook to insure on condition that
the building in which the machinery was contained, and of
which it constituted a part, was free from encumbrance. By
the i)olicy, it was stipulated that the representations made
in the application should be a warranty on the part of the
assured, and that the application contained a just, full, and
true exhibition of all the facts and circumstances in regard to
the condition, situation, and value of the property insured.
And it was further agreed that the policy was made and ac-
cepted in reference to the application, and to the conditions
annexed to the policy and made a part of it, to be used and
resorted to in order to explain the rights and obligations of
the parties. Among those conditions was one that the com-
pany ^' shall in no case be deemed to have waived a full,
literal, and strict compliance with and performance of each
and every of the terms, provisions, conditions, and stipula-
tions " in the policy contained, unless such waiver be express,
and manifested in writing under the signature of the secre-
tary of the company, before any failure on the part of the
assured to comply with and perform the same shall have oc-
curred, and that no agent of the company shall have power
to violate any of these conditions. Whatever, therefore, the
plaintiff represented in his application for insurance he is
boand to make good before he can have any resort to the de-
fendants upon the policy. And if the facts averred in the
application were not truly stated, it cannot matter whether
they were misstated through mistake or fraud, or whether they
were at all material to the risk assumed, for the defendants
undertook to pay a loss only in the contingency that thoee
facts were truly stated. That in this case there was a very
palpable misstatement in the application for the policy ia not
controverted.
The property was represented as unencumbered, when in
truth it was encumbered by judgments to a large amount
The fact misrepresented was a most material one, bearing
directly upon the degree of hazard involved in making an in-
surance. The hazard may well be regarded as greater when
the interest of the insured is lessened by encumbrances upon
his titie. But whether material to the risk or not, the war-
1865.] Cooper t;. Farmers' Mutual Fire Ins. Co. 547
ranty of the plaintiff made absence of encumbrances a con*
dition precedent to the defendant's liability. It was to removei
if possible, this obstacle to his recovery on the contract that
the plaintiff offered the testimony of Theodore W. Herr, as tend-
ing to show that the misrepresentation which was warranted
had been introduced into the application by mistake, and that
therefore the contract should be read as if the property had
been represented as encumbered. Had the evidence been
received, it would have proved, what doubtless is true, that
there was no fraud or willful misrepresentation, but it did not
tend to show either that the warranty had not been made or
that it had not been broken. It is necessary in this case to
determine whether that which is a warranty in a policy of in*
surance can be shown by parol evidence to have been inserted
by mistake. Undoubtedly, policies of insurance may be
reformed like other instruments when mistake or fraud is
proved, but whether this can be done to the extent of altering^
a warranty, or a condition precedent to any assumption of
liability by the insurers, may well be doubted in view of the
authorities. In the well-considered case of Jennings v. ChC'
nango Mutual Ins. Co., 2 Denio, 75, it was held that parol
evidence was not admissible to show that the insured truly
informed the agent of the insurers of particulars that the agent
had incorrectly stated in the application prepared by him for
the assured, the statements in the application having been
made warranties. And such is the doctrine of Kennedy v. St.
Lawrence Mutv,al Ins. Co., 10 Barb. 285; Glendale Woollen Co.
V. Protection Ins. Co., 21 Conn. 19 [54 Am. Dec. 309]; Holmes
V. Charlestovm Mutital Ins. Co., 10 Met. 211 [43 Am. Dec. 428];
and Susquehanna Ins. Co. v. Perrine, 7 Watts & S. 348. It is
difficult to see how a contract, avowedly based upon an ex-
pressly asserted fact, can exist when the basis is gone. The
case mainly relied upon by the plaintiff in error is Harris v.
Columbians etc. Ins. Co.^ 18 Ohio, 116 [51 Am. Dec. 448], the
facts of which were quite peculiar. They bear very little re-
^ semblance to the facts of the present case. There the policy
was issued by the agent of the company, who had authority to
issue policies to insure any property he might see proper, and
upon such terms as he might see fit, within the powers con*
ferred upon the company by their charter. The agent filled
up the written application after having been informed by the
applicant for a policy that he held only an equitable title, and
that u portion of the purchase-money remained unpaid. Thus
648 Cooper v. Farhebs' Mutual Fibb Ins. Co. [Penn.
informed, the agent considered that, notwithstanding the claim
of the vendors of the assured, he was the owner, and that the
premises were not encumbered, and so advised the assured.
The agent then inserted in the application that Harris, the
applicant, was the owner of the premises, and that they were
not encumbered. Both Harris and the agent signed the
application.
Another very material fact was, that prior to the issue of
the policy, the company had instructed their agent that poli-
cies might be issued upon buildings the title of which was
thus held, and that property thus situated was not encumbered
within the meaning of the application and policy. It was
also in the case that after the policy had issued, and after the
application and premium note had been returned to the com-
pany by the agent, who then informed them of the state of the
title, they made assessments, and collected them from the
assured. In view of this state of facts, the case can hardly be
considered a reformation of a warranty by parol evidence of
what occurred when the written warranty was made. But
were it conceded that such evidence is admissible for the
purpose of reforming a policy, it is still true that no written
instrument can be reformed on proof of a mistake, unless it be
a mistake of both parties. Mistake of the assured alone will
not answer. If it would, insurers might be held by a contract
to which they never assented. It is mutual mistakes only
which make a contract reformable in equity. Hence it is a
fatal objection to the evidence oflfered by the plaintiff below
that if admitted it would not have shown any mistake by both
the parties to the contract. In filling up the application, Herr
was the agent of the plaintiff: Susquehanna Ins, Co, v. Perrine,
7 Watts & S. 348*. Ho was, it is true, an agent of the defend-
ant for some purposes, but not to fill up applications, to declare
what were or were not encumbrances, or to waive compliance
with any precedent condition on which policies were issued.
His agency for the defendant was defined in writing. It was
*'to make surveys, receive applications, premium notes, and
cash premiums for said company agreeably to the by-laws."
He did not make the contract for the company, nor arrange
any of its conditions. He had no authority to do either.
Admit that he was mistaken as well as the plaintiff, — bis mis-
take was not that of a party to the contract; and so far as it
appears, he never informed the defendants, who were contract-
ing parties, that any other representation had been made than
1865.] SwAivzBY 17. Pakkeb. 549
Buch as appeared in the written application forwarded to them,
upon which they issued the policy. The plaintiff's offer, then,
was not to show a mutual mistake. The defendants assumed
a risk based upon the written application alone. To allow
them to be held liable on this policy for the reason that some-
thing took place between the plaintiff and Mr. Herr, of which
they had no knowledge, would be to make for them a new
contract into which they never entered.
It follows that the evidence offered could not have availed
the plaintiff had it been received, and it was therefore rightly
rejected.
Judgment affirmed.
Reformation of Instbumxnts m Equttt: See Bvffner ▼. McConwU 63
Am. Dec 362, and note collecting prior cases; Pienan y. Armstrong, 63 Id.
440, 442; Price v. Cutis, 74 Id. 52, 56; Stout v. Ctty F. Ins, Co,, 79 Id. 539,
and note; and see 3 Pomeroy's E!q. Jar., sec. 1376.
Thb pblncipal oasb is DI&TIM0T7IBHSD in EUefiberger y. Protection M, F,
Ins. Co., 89 Pa. St. 467, in holding that the fraud or mistake of a knavish or
blundering agent, done within the scope of the powers* given him by an in-
surance company, will not enable the latter to avoid a policy to the injury
of the insured, who innocently became a party to the contract; and in Water'
town F. Ins. Co. v. Simons, 96 Id. 526, as not ruling a case which required the
court to determine whether or not the warranty related to representations
material to the risk. It is also quoted in Schwmitsch v. American Ins. Co.,
48 Wis. 29, on the point that a misrepresentation as to encumbrances on the
property insured is a most material one, bearing directly upon the degree of
hamrd involved in making the insurance.
SwANZBY V. Parker.
160 PSKirSTLVANIA STATS, 441.]
TaANBFSBRBB OF PrOMISSOBT NoTB BY DeLIVXBT WITHOUT iRDOBSBlfXlIV
TEDEKKBT Waxbastb that it is what it purports to be, and that it is
neither forged nor fictitious. He is therefore inoompetent, on account
of interest, as a witness for his transferee.
JUDOMXNT IN AcnON ON JoiNT OONTILAOT IN FaVOB OF QnB DEFENDANT
DiscfHARGBS Defaulted Co-defendant, if the farmer goes to trial on
a defense common to both defendants, but not if the defense is personal
to himself. The defaulted defendant is therefore not incompetent on
account of interest as a witness for the plaintiff if the co-defendant
goes to trial on a defense common to both, but he is incompetent as being
a party to the record.
Pabtt to Suit on Contract is Inoompbtent Witnbe» for either side, al-
though he may be disinterested.
Assumpsit on a promissory note, brought by Samuel H.
Bwanzey against Robert E. Parker and John Laughlin, doing
550 SwANZEY V, Parker. [Penn.
business as R. E. Parker & Co. The note purported to be
made by R. E. Parker & Co. to the order of themselves, and
was indorsed " R. E. Parker & Co." It was given by the de-
fendant Laughlin to one John M. Pomeroy, who transferred
it without indorsement to the plaintiff. Judgment by default
was taken against Laughlin. Parker pleaded non assumpsii
and payment with set-off. Laughlin and Pomeroy were offered
as witnesses by the plaintiff, but were both rejected. The plain-
tiff had released Laughlin from any other action than the one
pending. The defendant had a verdict and judgment, and the
plaintiff assigned as error the rejection of the witnesses.
Edmund S, Doty, for the plaintiff in error.
Alexander and Parker, for the defendant in error.
By Court, Strong, J. The fundamental question of fact in
this case appears to have been, whether the note upon which
the suit had been brought was the note of R. E. Parker as well
as that of Laughlin, the other defendant. It had been given
to Pomeroy by "Laughlin, and Pomeroy had sold it to the
plaintiff. By the sale, he warranted it to be what it pur*
ported, — the note of both Parker and Laughlin. A transferrer,
even by delivery, of a promissory note or a bill of exchange,
though he does not generally warrant the solvency of the
maker, does warrant that the bill or note is not forged or ficti-
tious,— that it is what it appears to be: Jones v. Ryde, 5 Taunt.
489. In that case Chief Justice Gibbs said: ^'Declining to
indorse the bill does not rid him of that responsibility which
attaches on him for putting off an instrument as of a certain
description which turns out to be not such as he represents
it." Hence, when Pomeroy was called to testify for his vendee,
he was called to support his own warranty. For such a pur-
pose he was incompetent, without reference to the rule of
policy enunciated in Post v. Avery, 5 Watts & 8. 609, and its
kindred cases.
It remains only to inquire whether Laughlin was a compe-
tent witness for the plaintiff. He was one of the defendants.
He made the note in suit, signing it R. E. Parker &. Co. The
suit was brought against him and Parker as partners, and
judgment for'default of appearance was entered against him.
Parker alone pleaded to issue, and the issue was tried against
Parker singly. Under these circumstances, certainly, Laugh-
lin cannot testify to fasten the debt upon Parker jointly with
himself, unless a verdict and judgment for Parker would sweep
1865.] SwANZEY V. Parker. 551
away the judgment already obtained against him for default of
appeaiNance. The plaintiff in error contends that such would
be the effect of a verdict and judgment against the plaintiff,
and he relies in support of his position upon Ramsey^s Appeal^
4 Watts, 71. That case is very briefly reported. AH that we
are informed about it is that a joint suit had been brought
against William Ramsey and Sterrett Ramsey, and referred to
arbitrators, who awarded eight hundred dollars against both de-
fendants. From this awe^d Sterrett Ramsey alone appealed.
Before the appeal was determined, William Ramsey died, and
the matter before this court was the distribution of his estate.
One among other questions was, whether the plaintiff in the
suit was entitled to immediate payment of his award against
William Ramsey; and in delivering the judgment of this court,
Judge Rogers said: ''The situation of that claim is such that
we cannot now decide whether the plaintiff will ultimately be
entitled to the money or not. The appeal of Sterret Ramsey
18 still pending, and until that is disposed of, it is impossible
to say whether anything may be ultimately found due; for if
Sterrett Ramsey succeeds on the appeal, it will be virtually a
finding in favor of William Ramsey's estate. In that event,
notwithstanding his judgment, he may recover nothing from
the estate of William Ramsey." Though this may have been
entirely correct as applied to the case then under considera-
tion, it is not very satisfactory as the assertion of a rule. No
teason is given, no authority is cited, nor are we informed of
the nature of the action brought against the two Ramseys or
of the character of Sterrett's defense. As a universal rule, the
position taken by Judge Rogers cannot be sustained. It is
certainly not correct in regard to actions founded on torts;
and it has been repeatedly held that in actions upon joint
eontracts, if one defendant be defaulted, and the other go to
trial on a defense personal to himself, a judgment in his favor
does not discharge the defaulted defendant. The plaintiff
may enter a nolle prosequi against the defendant who pleads
matter in his personal discharge, and thus he becomes no
longer a party to the record: Salmon v. Smithy 1 Wm. Saund.
207 a, and cases cited in 1 Greenl. Ev., sec. 356. The effect
ef the judgment depends on the character of the plea. If
the defense be not peculiar to the defendant, who pleads to
issue matter in his personal discharge, and such as he only
can set up, his success must destroy the judgment obtained
tgainst his co-defendant by default; for if it were not so, the
5&2 SwANZEY V. Parker. [Penn.
record would show a judgment against one of the defendants
upon a state of facts which the same record conclusively es-
tablishes as having no existence. This would be an absurdity
not to be tolerated. In a suit against two upon a joint con-
tract, ordinarily there can be no recovery against one, because
neither is liable if the contract is not the joint contract of both.
And it is only when one sets up a defense that the other can-
not use that the case is otherwise. Then, if one defendant
pleads "infancy," or a "certificate i^i bankruptcy," "ne unques
executor" or "that he was a surety in the contract, and that
he has been discharged in equity by the conduct of the cred-
itor," if he succeeds in maintaining his plea, a judgment in
his favor does not relieve his defaulted co-defendant. In such
a case there is no contradiction in the record. On the other
hand, the general rule is, as stated, that when the plea of the
co-defendant who goes to trial would have equally availed his
defaulted co-defendant had he joined in pleading it, it will, if
maintained, sweep away the judgment obtained by default
This was held in Pipe v. Steele-^ 2 Q. B. 733, a case closely re-
sembling the present. It was assumpsit upon two bills of
exchange against Harvey and Steele. Harvey suffered judg-
ment by default. Steele pleaded, among other things, that
Harvey was in partnership with him, and drew the two bills
without his knowledge, in fraud of the partnership, for his own
private purposes, whereof the plaintiff had notice, and that
neither the partnership nor Steele had received any value.
On the trial, Harvey was permitted to testify for the plaintiff
against Steele, and the court of king's bench ruled the admis-
sion to be right. Lord Den man, in delivering the judgment of
the court, after remarking that the objection that the witness
was a party to the record had been deliberately overruled in
Worrali v. Jones, 7 Bing. 395, proceeded to say it was a ques-
tion of interest. He referred to the case of Chreen v. Sutton^ 2
Moody & R. 269, where Lord Abinger rejected a person so
situated, on the ground that having admitted himself liable
by suffering a judgment by default, he is directly interested in
throwing a part of the burden on another; and he added, that
"if the joint liability were an established fact at the time
when the witness is called, this argument would be conclusive.
But on the contrary, it is the very fact in issue, and the wit*
ness*s interest is that it may not be established, because, un-
less it is, no judgment can be had against him in this action.
He, indeed, after suffering judgment by default, may have little
1865.] SwANZEY V, Pabkeb. 553
ground for expecting that he will ultimately escape the conse-
quences of a joint liability; but his conduct even in that re-
spect might admit of explanation. He might say it occurred
through an oversight, or his motive may have been to save the
expense of his disputing what he was aware that his co-de-
fendant would be able to disprove. This is the very issue
which that defendant is actually maintaining; if successfully,
this witness shares the fruit of his victory, for the judgment
will be in favor of both." Our own case of Hayes v. Gudy-
kunst, 11 Pa. St. 221, though turning upon different questions,
recognizes the principle of Pipe v. Steele, 2 Q. B. 733. The suit
was upon a collateral promise, but there had been a previous
0uit against Wetzel and Gudykunst upon a note signed by
Wetzel with his own name and that of Gudykunst, who was
alleged to be a silent partner. That previous case had been
arbitrated, and an award had been made against both Wetzel
and Gudykunst, from which the latter appealed. Wetzel did
not appeal. At the trial, Gudykunst pleaded non aasumpsitj
and denied the partnership, and on that issue obtained a ver-
dict and judgment in his favor. Upon such a state of facts,
this court declared that ^^ Wetzel remained answerable for the
debt on the original cause of action, for by the finding of the
jury, the judgment against Wetzel, though unappealed from,
is swept away.''
None of the cases referred to by the learned judge of the court
of common pleas, or by the counsel of the defendant in error, are
inconsistent with the doctrine of either Pipe v. Steele or Hayes
V. Chidykunst, supra. They come within the admitted excep-
tion to the general rule. In all of them, the defendant who suc-
ceeded after a default of his co-defendant, or after an award
against both from which he alone appealed, set up matter in
his personal discharge, and not a defense which was equally
available by both defendants. In both Talmage v. Burlingame,
0 Pa. St. 21, and Holt v. Bodeyj 18 Id. 207, the successful de-
fendants were sureties, and the ground taken for their dis-
charge was not that the debt had no existence, or that there
had been no joint contract, but that the creditors' conduct had
relieved them as sureties. Such, however, is not this case.
The defense set up by Parker is not peculiar to himself. It
is, that he was never a party to the note, and that no such
joint contract was made as the plaintiff's declaration avers.
His defonse, if true, is equally a defense for Laughlin, for
neither of the defendants can be liable in this suit unless th«y
"554 SwANZEY V, Parker. [Perm.
-were joint promisors. The conclusion is therefore inevitable
that on the issue tried a verdict and judgment in favor of
Parker must operate to wipe away the judgment by default
against Laughlin. And the consequence of this is, that though
it might be the interest of Laughlin to prove the other defend-
ant equally liable with himself, he has a greater interest
against the plaintiff, for if his co-defendant succeeds, he is him-
self discharged from the judgment already obtained against
liim, and the plaintiff has released him from any other action.
He was not, then, incompetent on account of interest to testify
-on behalf of the plaintiff.
It is suggested, however, that our acts of assembly of May
4, 1852, and April 12, 1858, on the subject of amendments,
may prevent the extinction of the judgment by default against
Laughlin as a consequence of a verdict and judgment in
favor of his co-defendant. These acts, it is said, authorize
the court to strike out the names of parties, plaintiffs or de-
fendants, and try the case against the others. It is not per-
ceived how those acts can have any effect upon the present
case. If Laughlin had not suffered judgment by default, but
the case had gone to trial against both defendants, and if the
plaintiff discovering that he had no cause of action against
Parker, the court had, at his request, struck Parker's name
from the record, there could have been no recovery against
Laughlin for the cause set out in the declaration.
But though the witness was not incompetent to testify for
the plaintiff on account of interest, was he not because of his
being a party to the record? It was early doubted in the
English courts whether a party to the record can be pei*m]tted
to testify, though he has no interest. In Mant v. Mainwar-
ing^ 8 Taunt. 139, it was ruled that in an action on a joint
•contract against several partners, one of the defendants, hav-
ing suffered judgment to go by default, is not admissible to
prove the partnership of himself and the other defendants
without their consent, although the proposed witness is re-
leased from all other actions than that on which he is called
to give evidence. The exclusion of the witness was put upon
two grounds: 1. That he was interested, the judgment against
■tiim operating only in the event of a verdict against the other
defenJants; and 2. That a party to a suit cannot be ex«
^mined. See also note to Stevens v. Lynchj 2 Camp. 333,
But in Worrall v. Jones^ 7 Bing. 895, it was directly ruled that
a party to a suit is a competent witness, provided he is disin*
1865.] SwANZEY V. Pabker. 555
tcrested. The earlier English doctrine seemB, however, to be
elsewhere recognized, though not universally. In Schermer-
horn V. Schermerhomy 1 Wend. 119, it was ruled that one of
several makers of a promissory note, discharged as an insol-
vent debtor, his discharge unimpeached and himself released
from all liability by the joint maker of the note, has no inter-
est in a suit commenced on such a note; yet, being a party to
the record, he is incompetent as a witness, although the jury
pass upon his liability and find a verdict in 'his favor. The
rule was admitted to be different in actions for torts. And in
this state it is apparently settled that, in actions on contract,
at least, a party to the suit is an incompetent witness, though
he may be disinterested. I confess I prefer the English doc-
trine laid down in Worrall v. Jones, supra, but our cases are
too numerous and direct to be disregarded. In Wolf v. Fink,
1 Pa. St. 435 [44 Am. Dec. 141], which was an action against
three makers of a promissory note, there was an award of
arbitrators against two of the makers, and in favor of Ken-
nedy, the third, he being a surety. Wolf, another of the de-
fendants, and also a surety, appealed for himself alone, and
offered in evidence at the trial of the appeal the deposition of
Stewart, the remaining defendant, who had not appealed from
the award, and who was a certificated bankrupt. This court
8aid: ^' It must be admitted that the witness had not a parti-
cle of interest in the event of the suit. The only tenable ob-
jection is, that at the time of the impetration of the writ and
the award he was a party to the suit." Yet he was held in-
competent for that reason; and very often since has the same
doctrine been reasserted. It is true that the witness was
offered for his co-defendant, as was the fact in most of the
other cases, in which being a party to the suit was regarded
a sufiScient reason for exclusion; but this has not always been
the state of facts. It has also been held that the same policy
excludes a party to the suit from testifying in behalf of his
co-plaintiff, though he is uninterested. And if it alone is a
sufficient reason for holding the witness incompetent at all,
it can make no difference by which party he is called. In
Scott V. Lloyd y 12 Pet. 149, it was resolved that a party is
not admissible without the consent of all parties to the record,
and that the privilege of exemption is not personal and sev-
eral, but mutual and joint.
Controlled by this course of decision, we are led to the con«
656 Kbamer V, LoTT. [Penn.
elusion that Laughlin was not a oomx>etent witness for the
plaintiff.
The judgment is afi&rmed.
Tbansferber of Pbomissobt Notb without LfPOBSxiaHT Wabhahtb
ITS Genxtikenbss: Note to Baxter ▼. Duren, 60 Am. Deo. 606; Ljfona ▼. MU-
ler, 52 Id. 129; and see Persona ▼. JoneSt 68 Id. 476.
The PBiNon*AL gasb is cited in Flynn ▼. AUen^ 57 Pa. St. 485, to the
point that the doctrine that the vendor of chattels in possession impliedly
warrants the title extends to choses in action; in Wtst v. JcLOoby, 62 Id. Ill,
to the point that a plaintiff may enter a noUe prosequi as to a defendant who
pleads matters personal to himself, and thus discharge soch a defendant as a
party from the record; in Alcom^s Eac^r v. Cook, 101 Id. 214, to the point
that a party to the record cannot be made a witness without consent of the
adverse party; and in Herman v. Binher, 106 Id. 124, it is cited on the point
of a ja<]^ment for one joint defendant operating in &vor of a defaulted co*
defendant.
Kramer v. Lott.
[60 PSNN8YLV1.NIA STATE, 496.]
AcnoN ON Case iob Malicious Pbosecution will not Lib for ^^"^""g a
person to be arrested on a warrant charging an act which is not a erime,
bat a trespass only. Trespass for the illegal arrest is the remedy.
Wasbant Desoeibes Trespass Merely, and not Fobciblb Entbt ob
Forcible Dbtaineb, where it is for "breaking and opening a certain
school-house with violence, and taking possession of the same contrary to
law," and is therefore void.
Case for malicious prosecution, brought by Sarah Kramer
and her husband, George Kramer, against Henry Lott and
George Buchite, who had procured the arrest of Mrs. ICramer,
on a warrant issued by a justice of the peace. The facts are
stated in the opinion. The defendants had a yerdict and
judgment, under the instructions of the court, whereupon the
plaintiffs sued out a writ of error.
P. W. JenkSy for the plaintiffs in error.
Barclay f for the defendants in error.
By Court, Thompson, J. A criminal prosecution is deemed
/n law to be malicious when a crime is charged with malice
and without probable cause. Where the proceedings are en«
tirely irregular, the prosecutor, according to all the authorities,
will be a trespasser, and the action to redress the injury must
be trespass for the force applied; and such is the case where
the proceedings are in form a criminal prosecution, but the
1865.] KaAMSB v. Lott. 657
offense charged is not witbin criminal jurisdiction. This is
definitely ruled in Maker v. Ashmead^ 30 Pa. St. 844 [72 Am.
Dec. 708], and in Baird v. Householder^ 32 Id. 168. The
principle of the rule is that the warrant is void, no crime ex-
isting to give it legality, and that an arrest under it is no more
to be justified than any other illegal arrest and detention with-
out warrant. Trespass in such a case is undoubtedly the
remedy.
We have not the complaint on which the warrant was is-
sued in this case before us; but the justice recites it to have
been issued on complaint of Henry Lott and George Buchite,
school directors of Henderson township, ''for breaking open a
school-house, and taking possession and detaining the same in
said township, which was locked, with force and violence, on
the 19th of September last"; and the warrant is for "breaking
and opening a certain school-house with violence, and taking
possession of the same contrary to law." The facts were that
Mrs. Kramer entered the school-house on Sunday, through a
window, and opened the door to permit public worship to be
held, no person being in the actual occupancy at the time.
The learned judge, in hearing the case, charged "that all the
evidence, including the recital in the warrant issued by the
justice, shows it [the entry] to be a trespass, and nothing
more. The warrant, therefore, would not justify an arrest of
the plaintiff; in fact, it was utterly void, and all acting by
virtue of it were guilty of a trespass, and the action ought to
have been trespass, and not case."
If this charge was right, it of course ended the case, and
any other assignment of error need not be considered. "Forci-
ble entry and detainer" is the denomination of a criminal
offense, the nature of which its name defines. Its object is
twofold: one to punish those who, by force and violence, tak-
ing the law into their own hands, forcibly get possession of
lands and tenements in the occupancy of others; and secondly,
to have restitution made to those whose possession has thus
been taken from them by such force and violence. The
act of 1860 defines the offense to be: "When any person shall
with violence and a strong hand enter upon or into any lands
or buildings, either by breaking open doors, windows, or other
parts, or by any kind of violence or other circumstances of
terror," etc., "turn out by force, or by threats or menacing
conduct, the party in possession, every person so offending
shall be guilty of a forcible entry," etc. A forcible detainer
558 Ebambb v. Lott. [Penn.
is also defined by the same act to be where ''any person shall
by force and with a strong hand, or by menaces or threats^
unlawfdlly hold or keep the possession of lands or tenementSi
whether the possession of the same was obtained peaceably or
otherwise."
The act of 1700 simply provided that "whoever shall vio-
lently or forcibly enter into the house or possessions of any
other person within this province or territories, being duly
convicted thereof, shall be punished as a breaker of the peace,
and make such satisfaction to the party aggrieved as the cir-
cumstances of the fact will bi^ar." Judge Smith, in his note
to this statute (1 Smith's Laws, 1), says: "The act in the text
is analogous to the English statute of 5 Rich. II., stat. 1, c. 8,
but which has been considered as not extending to Pennsyl-
vania. But the remedy in cases of forcible entry and detainer
is rendered effectual by the statutes of 15 Rich. II., c. 2, 8
Hen., c. 9, 31 Eliz., c. 11, and 21 Jac. I., c. 15, which have
been adopted in practice and reported by the judges to ex-
tend here." Under the act of 1700, it has been several times
decided that to constitute the offense of forcible entrr and
detainer, there must be such acts of violence, or such threats,
menaces, signs, and gestures, as may give reason to apprehend
injury or danger in standing in defense of the possession: Penn*
sylvania v. jBo6tson, Addis. 14-41, 355; Burd v. Comrrwnwealth^
6 Serg. & R. 252; and that an indispensable ingredient to the
offense is force of arms and a strong hand: Respuhlica v. Devore^
1 Yeates, 501. These ingredients are enumerated substantially
in the acts of 1860, and must, we think, be present, since that
act as before, to constitute the ofifense. Now, neither the sub-
stance of the information given nor the warrant do more than
describe a trespass, viz., the breaking open the school-house
with force. No violence, threats, or menaces towards any one
is alleged and set forth, and thus the warrant did not describe
the offense of forcible entry, much less of forcible detainer, but
only a trespass. I apprehend it could not be successfully
contended that an indictment using no other words than those
contained in the warrant, namely, "breaking and opening a
certain school-house with violence, and taking possession of
the same, in said district, contrary to. law," would be good. It
makes no allusion to any person in possession, either actually
or constructively, or that the violence was other than that used
in opening the door, it being locked. If nothing else than this
occurred, the act was manifestly a trespass only, and the war-
1865.] Kramer v. Lott. 659^
rant describing merely a trespass was void. The plaintiffs*
remedy was therefore for ^n arrest without authority of law,
and that was by action of trespass, and not case. The dis-
tinction between case and trespass is so well defined that we-
need not stop to restate it; and that distinctiveness renders it
a legal necessity to employ the latter when the gravamen of the
action is the force directly applied, as does the former where
the injury is the result of lawful process. In Baird v. House^
holder, 82 Pa. St. 168, the warrant was issued on complaint
of Judge Baird under oath against Householder for ^Haking
and carrying away from the farm of deponent a quantity of
oat straw (which had been raised and cut on said farm by
Householder), without the knowledge and consent of said
Baird, the straw being the property of said Baird; it being the
one half of the produce which according to the lease was to be
delivered to Baird." The defendant was arrested, and bound
over to court, but was discharged from his recognizance by the
quarter sessions without trial, on the ground that no criminal
offense was charged against him. Although it was insisted
that the- warrant contained a sufficient charge of larceny, and
so thought the court below, we held differently, and that an
action on the case for malicious prosecution would not lie for
the arrest and proceedings under the arrest, — that they were
void, and trespass was the true remedy.
So we think in this case, and that the learned judge of the
common pleas took the right view of the warrant in his charge
to the jury, and that this judgment must be affirmed.
Judgment affirmed.
Action on Case vob Malicious Peosecution will not Lib for causing
A person to be arrested on a warrant charging an act which is not a crime, bnl
a trespass, only. Trespass for the iUegal arrest is the proper remedy: Mahe$
▼. A^invead, 72 Am. Dec. 708, and note.
Thb principal case is cited in Kennedy v. BameU, 64 Pa. St. 144, to thr
point that when an act is an immediate wrong, against all forms of law, trea*
pass is tho remedy, but when the process is legal, but is used in an oppress-
ive manner, the remedy is case.
560 Weakulnd v. Hoffman. [Penn.
Weakland V. Hoffman.
[60 PBNKSTLVAirXl. Statx, SVL]
Vbhdxxs mat 8bt on, to Extent ov Uvfaid Puroeasi-moiibt, Valuv
OF Growing Tdcber Taxen from Land by the holder of an adrene
title while in possession under an order of restitation, although the yea-
dees were not entitled to a conveyance until the purchase-money was
paid, and had taken no covenant for prior possession, where the vendoip
sold the land pending an action of ejecitment, and on recovery put hiF
vendees in possession, from which they were evicted on reversal of the
judgment, and upon a retrial, judgment was again rendered against him,
which he suffered to remain final, but on succeeding in another eject-
ment, he restored his vendees to possession.
Ejectment. The facta are stated in the opiDion.
John Ferdon and John Scott^ for the plaintiffe in error.
R. L, Johnston and F, A. Shoemaker^ for the defendant in
error.
By Court, Agnew, J. The Weaklands bought of Barclay
during the pendency of an action of ejectment for lands, part
of which constituted their purchase. Shortly after his sale, he
recovered, and then let them into possession. Subsequently
his judgment was reversed, and the possession restored to his
adversary under a writ of restitution in February, 1852. In
the mean time the Weaklands had paid him a considerable
part of the purchase-money, the whole of which fell due Janu-
ary 16, 1852. Barclay's ejectment was tried again in 1853,
and a verdict and judgment were rendered against him, which
he suffered to remain final; resorting to a second ejectment, in
which he recovered, and was put into possession in 1857.
Weaklands were then restored to the possession under their
purchase. In the mean time the land was stripped of valua-
ble timber by Ross and his tenants. Hoffman, who suc-
ceeded to Barclay's title, brought this ejectment in the court
below to enforce payment of the remainder of the purchase-
money by the Weaklands, under their contract with Barclay^
and the question was, whether they could set up a defense in
equity on account of the spoliation of the timber.
The Weaklands were not entitled to a conveyance by the
terms of their agreement until payment of the whole purchase-
money, and had taken no covenant for a prior possession. As
a general rule, a contract to sell does not, ipsofactOy carry a
right of possession until conveyance, in the absence of a cove-
nant to let the party into possession. It is very common, it
1865.] Weaeland v. Hoffman. 561
is true, to let the purchaser in upon a sale, but we know of no
rule of law by which the possession, so important a security
to the rights of the vendor, shall pass from him without his
covenant or his consent. The possession of the Weaklands
was merely permissive. Under these circumstances, it would
be very doubtful whether they could claim damages from their
vendor for the loss of the mere profits of the land by reason
of their eviction.
But the claim here is for a loss of what constituted a part
of the land itself. Growing timber is a part of the realty, and
passes with it under the conveyance. Oftentimes it consti-
tutes the chief value of the land. It is part of the inheritance,
and its spoliation is waste. The verdict and judgment which
Barclay suffered to become final in the first ejectments es-
topped him from denying the rightfulness of the writ of resti-
tution, and the eviction of the Weaklands under it. When
dispossessed, the Weaklands stood as to Barclay in a position
certainly as favorable as if they had not been let into posses-
sion under their purchase, and if between the sale and a tender
of a conveyance by Barclay he had himself stripped the land
of the timber, or suffered it to be done, in equity his claim for
the purchase-money would certainly be liable to reduction.
Nor does it seem very clear how the fact that the spoliation
was committed by an adverse claimant, whom he had suf-
fered to recover and take possession, can change this right to
defalcate in equity. Had a portion of the land itself been
recovered by virtue of a better title, it would clearly be a good
defense to the payment of the purchase-money to that extent.
Now, in equity, what difference is there between the cases?
Here, though Barclay has made good his title by a second
ejectment, to the land itself, the timber taken off in the mean
time is wholly gone, and cannot be restored. It is a destruc-
tion and waste of the inheritance, as detrimental to the Weak-
lands as the loss of a portion of the land. It was caused by
a recovery under a title of some sort, which, for the time be-
ing, the Weaklands could not resist, and against which Bar-
clay, the holder of the title and its muniments, and who had
covenanted to convey with general warranty, was clearly the
person who should have defended. His ejectment was pend •
ing when he sold to them, and he, and not they, was the person
to prosecute it with effect. The right to recover for the spolia-
tion of the timber against Ross vested in Barclay by his re-
covery in the second ejectment. He could have given notice,
AM. Dsc. Vol. LXXXVin-86
662 WiLLEY «. Day. [Pexin
and recovered in the ejectment itself, or proceeded afterwardfi
by an action of trespass for mesne profits: Drexel y. Matty 2
Pa. St. 273 [44 Am. Dec. 195]; PoweU v. Smith, 2 Watts, 126;
King y. Baker, 25 Pa. St. 186. Barclay, therefore, having sold
during a pending ejectment, holding in his own hands the
legal title and the muniments for its prosecution, suffering a
recovery against his vendees, and afterwards entitling himself
to the value of the timber taken by his recovery in the second
ejectment, ought not now to turn the loss over upon his ven-
dees, or compel them to follow Ross for the value in a course
of doubtful litigation.
We think, therefore, that the value of the timber taken by
Ross while in possession under the order of restitution, and
before the recovery in the second ejectment, can be set off as
an equitable defense to the payment of so much of the pur-
chase-money. But the defense cannot extend beyond the
unpaid purchase-money, for this only is the subject of con-
troversy.
The judgment is therefore reversed, and a venire facias de
novo awarded.
WooDWABD, C. J., dissented, and filed a dissenting opinion.
Thb frdtgcpal case 18 ciTKD III OroBS Y. Noble, 67 Pa. St. 78, to the point
that in an action for the purchase price, the vendee may show that the con-
■ideration has failed in whole or in part; and in McOrew v. Foster, 113 Id.
648, to the point that a contract to sell does not, ipso facto, cany a right of
possession until conveyance, in the absence of a covenant to let the party into
possession. See further, as to a vendee's right of relief for a defect of tiUe^
Cooper V. Singleton, 70 Am. Dea 933, and note.
WiLLBY V. Day.
[61 Pkhnstlvanxa Statb, 5L]
CoNTBAOT HxLD TO BB Me&elt Exeoutort, whoTO a father, who owned a
tract of nnimproved land, said to his son that he would give him one half
of the land, not designating which, if he would remain with him a year,
although the promise, in nearly the same terms, was afterwards repMted,
designating the north half, and although the son assented and remained
with his father, and some marks were made to indicate the line, and
some improvements were made; and the whole tract will pass at a sheriff *s
sale under a judgment entered against the father prior to a conveyance
of the land from the father to the son.
7xNDBB UNDEB Allbobd Pabol Contbact IS PoflsiaBiov fOH LoNQ Thoi
is not held to proof so rigid as under a recent sale.
1865.] WiLLBY V. Day. 563
Lapse ow TlJmm will Supply Wart of DismfOTNEsa aud Directnbss of
Pboof, and corroborate defective evidence of the exiflteoce of a contract,
bat will not create such evidence; bat when Uie alleged vendee has been
a long time out of possession, the presumptions are the other way.
Bjectment. The opinion states the case.
H, L. Richmond and O. Churchy for the plaintiffs in error
D. Jf. FarreUy and A, B. Richmond, for the defendants In
error.
By Court, Strong, J. This was an action of ejectment for
the north half of lot No. 1186, in the Sixth Donation District.
The record presents the singular spectacle of a recovery by
plaintiffs upon a title they did not assert, and which they used
only to rebut evidence of a right by which the defendants
claimed to protect themselves in possession. The ejectment
was brought in 1861 by Horace Day, the ancestor of the plain-
tiffs, and after his death they were substituted for him. The
title which they gave in evidence in chief was a deed from
Charles Day to Horace Day, his son, dated February 24, 1827,
and recorded on the 8th of March next following. Having
then proved the death of Horace Day, after the suit was
brought, and their own substitution on the record as his heirs,
they rested their case. It was not until after the defendants
had proved a judgment entered against Charles Day on the
29th of January, 1827, kept alive until 1843 by writs of scire
facials against the judgment debtor, with notice to Horace
Day, terre-tenant, and judgment on the writs, and also a sher-
iff's sale under the judgment to James Brawley, whose title
afterwards became vested in the defendants, that any evidence
at all was given of a parol sale to Horace Day anterior to the
deed made to him on the 24th of February, 1827. Yet the
case was put to the jury exclusively on the validity of a con-
veyance by parol, supported by what we regard altogether in-
sufficient evidence. Neither the alleged contract of sale, nor
possession taken under it, followed by improvements made on
the faith of it, was made to appear with any degree of dis-
tinctness. The evidence exhibits this state of facts: Horace
Day attained his majority in 1825. Up to that time he and
his father, Charles Day, resided in the state of New York.
The father owned the entire lot No. 1186, and with his son
removed to it either in the fall of the year 1825 or the year
1826. One witness testified that while they were resident in
New York the father promised the son he would give him the
564 WiLLEY V. Day. [Penn
half of the Sugar Creek lot if he (the son) would stay with
him (the father) a year, to which Horace assented. Which
half was not specified, nor does it appear whether the time
during which the son agreed to remain with the father was to
be before or after he came of age. That, perhaps, is imma-
terial. But the contract, if made at all, was in its terms ex-
ecutory. It did not purport to be the transfer of a present
right. It contemplated a future assurance. Subsequently,
and probably within a year, the parties removed to this state,
and according to the testimony of the next witness, the father
showed him the line where they intended to have the division
of the lot. The only other witness who testified upon the sub-
ject proved no more than an impression on his mind that ^^the
old gentleman told Horace if he would work with him a cer-
tain time right along he might have the land." He was to
have the north part. This also was at best an executory con-
tract. Certainly it was not an immediate transfer of the own-
ership. We have sought in vain for any proof of an executed
contract of sale or gift anterior to the deed of February 24,
1827. There is some evidence that a line was run between
the north half and the south half of the lot before the fall of
1826. There was a slashing part of the way through, though
not the entire distance, but it appears to have been a line of
intended division, not of one consummated. There is nothing
to show more than an executory contract until the deed was
made. Then, so far as we can see, the interest of the son in
the land commenced. That was, however, after the judgment
of James Brawley against the grantor had been entered. And
even if there were adequate proof of a definite parol contract
of sale, purporting to assure a present right, there is an entire
want of evidence of any taking possession under or in pursu-
ance of it. We cannot overlook the fact already stated, that
the father made a deed to the son for the north half on the
24th of February, 1827. Whatever was done by Horace Day
upon the lot conveyed to him after the deed was made cannot
be called action under the parol contract. It is accounted for
by the ownership acquired by the deed. Now, it is clear from
the evidence that Horace did not reside upon the north half
before the deed was made. He lived with his father. And
even afterwards, when he built a house for himself, he built
it on the south half, thirty or forty rods from the dividing line.
The testimony is that he worked for his father. One witness
deposes that he chopped some on the north half in the winter
1866.] WiLLKY V. Bay. 565
of 1826-27, but whether before or after the deed was made
does not ai^ar. Another testifies that he was hired to the
father in the summer of 1826, and that he and Horace worked
some on the north half that summer. They chopped together
sometimes, but Horace then lived with his father, and if
working on the lot at that time is evidence of possession, it was
then as much in the father as in the son, for the father's hired
workman was thus engaged. This is all the evidence in the
case of any possession taken by Horace Day before the deed
was made to him. Under no ruling ever made by this court
has such evidence been held sufficient to be submitted to a
jury, to allow them to find from it a parol contract of sale
executed. It is in fact no evidence at all of possession taken
in pursuance of a contract. It is true we held, in Richards v.
ElwelVs HeirSj a case not reported, that after a long period of
years, during which the vendee in an alleged parol contract of
sale had been in possession, he was not to be held to the same
rigid measure of proof as that which is required to sustain such
a sale more recently made. Lapse of time was allowed to sup-
ply want of directness and distinctness of proof, but not to
create evidence.
The language of the late chief justice in reference to that
case was as follows: ^' It seems to us there is evidence that
there was such a sale, that the price was paid, possession de-
livered by the vendor, and the control of the land held by the
vendee and those claiming under him for about twenty-eight
years before suit brought. Of some of these elements, the
direct evidence is quite insufficient, but when corroborated by
a long control of the land that cannot otherwise be accounted
for, it becomes quite convincing." That case was a second
time in this court, and our opinion was delivered by Agnew, J.,
reiterating and enforcing what we first decided. We adhere
to the rule thus laid down. But had the vendees in that case
been out of possession during the long period that elapsed
after the alleged parol contract, and before the ejectment was
brought, time would have raised no presumption in their favor.
It is long possession in pursuance of a contract that corrobo-
rates defective proof of its existence. The longer such posses-
sion, the more difficult is it to be accounted for on any other
theory than that there was a contract executed. But in the
case before us, the presumptions are the other way. The pos-
session of Horace Day, whatever it was, is accounted for by the
deed to him. That gave him a right to possession until 1843,
666 Emebbon v. Smith. [Pexin.
when the land was sold under a judgment superior to the deed.
He then immediately left, declaring that he had lost the land.
He did not even wait to be dispossessed by an execution, nor
did he set .up any right in virtue of a parol sale prior to the
deed. He remained out of possession from 1843 until 1861,
asserting no claim. Meanwhile, the property had repeatedly
been sold by the purchaser at sheriffs sale and his grantees,
BO far as it appears, without any notice of an outstanding parol
title. Under such circumstances, it is not easy to see how
lapse of time can avail him or his heirs to supply any defi-
ciency of proof. We hold, therefore, that both the first and
second points of the defendants below should have been
affirmed, and that the jury should have been instructed that
neither the proof of the contract nor that of possession taken
under it was sufficient to justify a verdict for the plaintiff.
Judgment reversed, and a venire de novo awarded.
Thompson, J., dissented.
IiiPBOVEMBNTS Madb bt Obild ON Pibsmt's Land^ on a promise that the
land would be given to him oa his father's death, wiU not take the case oat
of the statute of frauds: Poorman ▼. ^igore, 67 Am. Dec 426; 8nuth ▼. Smith,
78 Id. 49, and note 63.
VSNDEB UNDXB EZBOUTOBT Ck>llTBACr DOBS MOT HOLD AdVBBSBLT TO
Vbndor: Reffe v. Relfe, 73 Am. Dec 467, and note 469; Seabwy v. BtewaH,
68 Id. 256.
P08SB88ION AS BvmBNOB OB Tetlb: PhoM ▼. Seward, 60 Am. Deo. 699, and
note 602.
Emerson v. Smith.
[51 PlNKSTLVANIA STATB, 9(KJ
Dbbioa's Riobt ubder Ezbmftion Law to Bbxadi Pbopxstt Skizbd is
Barbbt) by the frandnlent concealment of other property liable to ezecn*
tion, made with the intent to hinder and delay the creditor by prermt
ing a sale of the property levied on.
Fraud Which is Indbpbmdent of Tbansaoiion in WmoH Lbvt was
Madb is No Bab, but is a positive bar when it exists in the yeiy tnuia*
action, and is not to be used merely in mitigation of damages.
Shbbift mat, at ma Own Rxbk, Rbsist Clahi or Dbbtob, if be baa
reason to believe he is not entitled to exemption of the property seixed.
Action of trespass. A judgment was recovered against
Emerson, the plaintiff, on which an execution was issued and
placed in the hands of the defendant, Smith, who was sherifiP
of the county. Smith levied on a horse and saddle of Emerson,
1S65.] Bhbbbon v. Smith. 667
vrithout seeing him or calling on him for money or property;
and Emerson notified Smith that he claimed the property
levied on as exempt, and requested to have it appraised. The
sheriff, being indemnified, disregarded the request, and sold
the horse, for which Emerson brought this action. The evi-
dence showed that Emerson fraudulently concealed other
property, but not that he endeavored to conceal the property
levied on. The court charged the jury that " if they believed
that the plaintiff fraudulently concealed other property with
design to hinder the creditor and embarrass the ofBcer, it
would be a defense to the action"; to which the plaintiff ex-
cepted, and assigned error.
Banks and WhiUf for the plaintiff in error.
n, W. Weir and A. W. Taylovy for the defendant in error.
By Court, Aonew, J. This record presents but a single
question, which is, whether a fraudulent concealment of other
property liable to execution, for the purpose of hindering and
delaying the creditor by preventing a sale of the property
levied on, is a bar to the debtor's right to retain the property
eeized under the exemption law? Taking the result of the
authorities as our guide, we must give an afibmative answer:
Huey'a Appeal, 29 Pa. St. 219; OUleland v. Rhoadsy 34 Id. 190;
Dieffenderfer v. Fishery 3 Grant Cas. 30; Strouse v. Becker^ 38
Pa. St. 190 [80 Am. Dec. 474]; Smith v. Emerson, 43 Id. 460.
It has been repeatedly said that the exemption law was
designed for the honest poor, not the roguish. It is not inde-
pendent fraud, however, but such as affects the execution of
the creditor, that defeats the debtor's claim. Byi;he exemp-
tion law, property to the value of three hundred dollars, and
no more, shall be exempt. But if a debtor can hide his prop-
erty, or keep it under cov^r, so as to conceal its knowledge
from the officer, and thereby assist himself to retain that
which he finds it convenient or necessary to keep openly, his
fraud bears directly upon the latter; for it is because the for-
mer is unknown or out of the way the latter is suffered to re-
main with him.
But it is argued that Freernan v. Smithy 30 Pa. St. 264, de-
cides that such fraud is no bar to the action, and simply
mitigates the damages. The point decided there was, that
evidence of the fraud was rightly admitted, because it, at all
events, mitigated the damages; and because there was no ex*
ception to the charge of the court below ruling it to be a bar,
J
668 Emerson t;. Smith. [Penn.
the error could not be reached. The reasoning of the judge
delivering the opinion was to the effect that it was no bar to
the action. We cannot concur in what was there said. When
this case was here before {Smith v. Emerson^ 43 Pa. St. 456),
the distinction between the effect of the fraud to reduce the
plaintiff's claim to nominal damages and its operation as a
complete bar was disregarded; and our brother Woodward,
delivering the opinion, treated the former as substantially
answering to the latter. Nor can we well discover how fraud
can be used to mitigate the damages and not to bar the ac-
tion.
When the sheriff levied his execution on the horse, Emer-
son either had a right to retain him as exempt or he had not
If he had the right because the fraud was no bar, then the
horse remained his, and could not be seized. To seize him
was to take property of so much value, and that value is the
measure of his damages, because it represents his right.
Being his, no power can deprive him of it, compensation being
the duty even of the state when she asserts her highest
powers. If the fraud is no bar, it is because it is indepen-
dent,— because its taint does not run in the veins of the
transaction and corrupt its current, — certainly it would be an
unheard of doctrine to be announced that a party may by miti-
gation be deprived of redress for an admitted wrong because
in his other dealings he is a rogue. But if the fraud do inhere
in the very transaction itself, by its intended effect prevent-
ing the collection of the debt, then the fraudulent debtor can
claim no right of exemption under the law, whose conceded
purpose only " meditated benefit for the honest poor. Rogues
and cheats were not the objects of its bounty": Freeman v.
Smith, 30 Pa. St. 264.
Nor do I think the law is so absolute in its command that
a sheriff dare not resist every claim for exemption, however
baseless it may be. That in making a levy he acts at his
risk is familiar to all. A stranger may claim property in
the goods or a pledge, or bailee assert his qualified right,
and the ofHcer proceeds at his peril. It was to lessen his
danger the interpleader act was passed. There are numerous
decisions under the exemption law itself where the officer has
proceeded in disregard of the debtor's claim and has been sus-
tained. Justice Woodward well remarked, in Dieffenderfer v.
Fisher, 3 Grant Cas. 30: " The plaintiff has a right to try the
title, which he can do only by a sale; and when he indemni-
1865.] Hays v. Paul. 569
fies the officer, and takes the risk of the proceeding, he is not
to be balked by such a shnffle as was attempted here." See
also Gilleland v. Rhoadsy 84 Pa. 8t. 187; Bosenberger v. HaU^
loweU, 35 Id. 869.
The judgment is affirmed.
EzsMTnoM Law8» how Cokstbuxd: OUnum t. WUBams, 76 Am. Deo. 210,
and note 224.
Right to BnnErrr of Ezbmptiow Law is FoRmm> by falaely denying
ownership: Sfyrome v. Becker, 80 Am. Deo. 474, and note 477.
Debtor's Right Extkkds oklt to Pbopxbtt Afp&aisid and set apart
to him: Hatch y. BartUt 84 Am. Dea 484.
Exemption, Remet>te« of Debtor who is denied: Van Druor y. King, 76
Am. Dec. 643, and note 645.
The principal case is cited to the fint point stated in the t^Uahut^ im
iTcCor^y's Afpeai, 68 Fa. St. 2ia
Hays v. Paul,
[61 PENNSTLTANXA STATE, 1B4.]
P4BT7 IS EnrrrLED to Full, Fair, and Explicit Answer to ms Prater
FOR LfSTRUOnoN, if pertinent; bnt where the evidence so requires, the
oonrt should make such qualification as will adapt the ins^ction te
the facts, and enable the jury to make the necessary discrimination and
decide the cause correctly.
It IB Duty of Flat-boatbcan, when Tug has Flat-boat in Tow, to Aid
in managing the tow and to obey the directions of the pilot of the
tug. But if the pilot fails to give sufficient orders, or fails to give
them in time, negligence may be imputed to the master of the tug, as
well in this as in any other respect.
Time and Sxjfficibnct of Kegsssart Orders Fall within Dutt of
Tuo when a steam-tug takes a boat in tow, undertakes its management
and control, and assumes to give the necessary orders.
It is Neolioenok on Part of Tuo, where its officers, with a boat in tow,
give the boat insufficient orders, or give them too late.
One Who Uses Tug for Towing must Enow Capacitt of Tug and its
practical effects upon the boats in tow.
When Character and Loading of ,Tow are Vibiblb and Open, and
her depth in the water and everything in regard to her are patent to
all, it would be negligence on the part of the tow-boat captain to under-
take to tow such a flat if too heavily loaded.
Tow-boat Captain is Best Judge of What his Tow-boat can Do, and
when asked to tow a craft too heavily loaded, or otherwise unfit to be
towed, he should decline, or apprise the owner, and make special terms
as to the risk.
Towing of Boats is Undertaking Implying Sufficient Knowledge
and skill to perform safely
670 Hats v. Paul. [Penii.
Partt EicpLOTXD nr PoBmoN or T&usr omt PBOPnar ow Othkbs d
Boumo to the aune care and attention that he would ezerdae orer it
were the property his own.
Action for damages alleged to have been caused by the
negligence of the defendant in towing the plaintiff's boats.
Paul, the plaintiff below, was the owner of flat-boats, and he
employed Hays, the defendant below, and owner of a steam
tow-boat, to tow two flat-boats of the plaintiff. Hays under-
took the job, and the tow-boat was placed between the two
flat-boats. The hands of the latter were directed by the tow-
boat to stand on the front of the flat-boats, and when told to
do so, ^' to pull." As the boats went through the bridge, the
hands of the flat-boat saw they would strike, but dared not
pull till they were told, as the steamboat had the control. As
the boats came to the pier, the flat-boat hands were told to
pull, and did so; but before going half a stroke, one of the
flat-boats collided with the pier and the steamboat, breakinf.
the side of the other flat-boat, which sunk, and was lost. The
jury found for the plaintiff. The defendant excepted to the.
charge of the court, and removed the case into this court
Other material statements appear in the opinion.
Woods and LoomiSf for the plaintiff in error.
S. A, Purmance and A, M, Brovmy for the defendant in error.
By Court, Agnew, J. Upon the general principle applicable
to the case, Hays, the defendant below, seems to have had
every proper advantage, his first seven points having been an-
swered by the court affirmatively, and without qualification.
It was only when those were reached which applied these prin-
ciples to the circumstances of the case any qualification be-
came necessary. But of this he complains; and contends that
his points were in clear, distinct, and explicit language; that
he was entitled to a distinct affirmative answer without qual-
ification. This, however, depends on the state of the evidence.
A party is entitled to full, fair, and explicit answers to his
prayer for instruction, if pertinent; but when the evidence re-
quires it, it is not only the right but the duty of the court to
make such qualification as will adapt the instruction to the
facts, and enable the jury to make the discrimination neces-
sary to decide the cause correctly. Abstract propositions and
propositions which meet but a single view of the evidence,
when it admits of another if answered without qualification,
will often lead to error. Points may be very carefallv framed,
1866.] Hays v. Paul. 571
t>at as remarked by Huston, J., in Coates v. Roberts, 4 Rawle,
112, " are often dra?ni with as much care as candor." He
emphatically denies that propositions of counsel must always
be answered precisely as put, giving as the reason that the
jury must find on all the facts, and not on a partial view.
This subject has been so well discussed by Lewis, J., in Rueh
V. LemSf 21 Pa. St. 72, 1 need only to refer to his remarks
there, and to add the cases of Utt v. L(mg^ 6 Watts & S. 178,
and Crowell v. Meconkeyj 5 Pa. St. 176.
The eighth point of the defendant, assuming the duty of the
plaintiff and his hands to aid the tug in managing the flotilla,
and to obey the orders of the tug's pilot, was answered in the
affirmative, but was qualified by saying that if sufficient orders
were not given by the pilot, or not given in time, negligence
could be imputed in that as well as in any other respect.
There was no error in this. When a steam-tug, capable of
locomotion, and, as we must presume from the undertaking,
of managing the boat taken in tow, assumes control of the tow
and its crew, and to give the orders necessary, the time and
the sufficiency of these orders fall within the duty of the tug.
If they be insufficient, or be given too late, it is negligence on
part of the tug. The only question, therefore, is, whether
there was evidence to justify the qualification and carry the
case to the jury. Of this there is no doubt. John Paul testi-
fied that he saw the boat would strike the pier, but dared not
pull until the word was given, as they (the tug) had the con-
trol. "Just as we came up to the pier," he continues, "they
hallooed * Left,' and at the word we pulled left, but before we got
half a stroke the boat struck the pier." In his cross-exami-
nation he says: " We did not run away and leave a steamboat-
man to pull at the oar; we pulled about half a stroke before
«he struck; when they called to us we were on the bow plank;
it struck the head of the pier, not the side of the pier." Samuel
Staley says: " We went on flat-boats to obey orders of pilot.
Just before struck, hallooed to pull left, and we did one or two
strokes; menjumped in and obeyed orders; when hallooed, very
near to pier, only time to strike a stroke." Wallace Gould
«ays: "John Paul and Samuel Staley were with me; we were
at the oars. They called 'Left,' and we pulled left. We pulled
pretty near one stroke after we were told to pull left, till it
struck. We could not have done more." There was ample
evidence to go to the jury that the crew of the flat-boat were
not absent from their oars, and that the order to pull left was
572 Hayb v. Paul. [Penn.
not giren in time to avoid the disaster. This, it is true, was
strongly rebutted by the defendant's testimony, which tended
to show that the order was given and the bell tapped in time,
and was not obeyed by the flat-boat crew, who were away from
their oars, engaged in bailing. But the very contradiction in
the testimony was the reason why the qualification should be
introduced in order that the evidence should be fairly passed
upon by the jury.
For the same reasons, the qualification of the answer to the
ninth point was necessary. If the evidence of the plainti£f be
true, his hands stood to their oars and obeyed orders until the
very moment the boat struck and began to sink. If they did,
then clearly their lives were in danger when it began to sink,
and they were justified in then leaving their posts. It requires
no straining of facts to induce any one of ordinary intelligence
to believe that an open flat-boat, laden with metal, and draw-
ing water within nine inches of the top of her siding, would go
to the bottom very suddenly when her side was crushed in
and she was jammed between the tug and the pier. The con-
tradiction of the defendant's evidence only rendered it more
necessary both sides should be fairly placed before the jury.
The errors assigned to the answers to the tenth and eleventh
points may be considered together. The tenth was answered
in the affirmative, and it is only the answer to the eleventh, as
applied to both points, which is impugned. But we discover
no error in the principles asserted in this reply. ' It is the
business of one who uses a tug for towing to know the capa-
bilities of his tug, and its practical effects upon the boats he
tows. '' Backing," as it is termed, is one of the useful features
in the power of a tug, enabling it to hold its tow against the
current and to control the movement where dangerous pas-
sages are to be effected or obstructions to be avoided. Being
one of the uses of the tug, the owner is presumed to under-
stand its effects. The flats made fast to the bow of the tug
were out of the influence of the waves astern, but in backing
the paddle waves flow towards the bow. Whether these waves
would reach the stern of the flats and overflow the slight height
of nine inches by swell were facts which it is to be presumed
the tug-owner would know better than the owner of the flats.
Certainly it was his business to know the power of his pad-
dles, the influence of the current, the swell produced, and the
probable distance it would reach. The allegation is, that tho
flats were too deeply laden for towing safely. The answer of
1866.] Hays v. Paul. 573
the court had reference to these things, which belong to the
knowledge of the tagman; and their doctrine, in the language
of the learned judge, was this: ** But if the character and
loading of the tow is visible and open to all, — such as an
open flat loaded with metal, — and her depth in the water,
and everything in regard to her, is patent to all, it would be
culpable negligence on part of a tow-boat captain to undertake
to tow such flat if too heavily loaded, or if containing too
much water to be towed with safety. The tow-boat captain I
hold to be the best judge of what his tow-boat can do, and if
applied to tow a craft too heavily loaded or otherwise unfit to
be towed, he should decline, or, apprising the owner, make
special terms as to the risk.'' In view of the facts, there was
no '^rror in this. There was an open boat laden with metal
exposed to view, the water rising upon its sides within nine
inches of the top, fastened partly ahead of the tug. Now, who
should know whether backing might be necessary, and if done,
whether the waves would reach the tow, — how high their
swells, and whether they would probably flow into the tow?
This is one of those undertakings which imply sufficient
knowledge and skill to perform it safely, and contemplated,
therefore, a knowledge on part of the tugman of the effects
produced by his tug, and their probable influence upon the
open and visible condition of his tow. As to all that was not
plainly open and visible to his view, the court conceded that
no duty lay upon him.
The errors assigned to the general charge are not supported.
Unless it be manifest from the want of a proper instruction
that the jury has fallen into error, it is not the practice of this
court to reverse for mere omissions when no instruction is
prayed for.
The plaintiff in error complains that the court left the stan-
dard of diligence to the mere conception or notion of the jury.
This is not correct. It is only by detaching this portion of
the charge from its proper connection that it can be made
obnoxious to the criticism of the argument. In this and
several preceding paragraphs the judge explained in general
terms the nature and degree of the care, skill, and diligence
demanded by the law in those undertakings which require
reasonable skill and diligence. In the sentence immedi*
ately preceding he had said: ^'A party employed in any
position of trust over the property of others is held to the same
care and attention that he would exercise over it were the
574 Babnett v. Reed. [Peniu
property his own; but in ascertaining what that care and at-
tention is which he would exercise were the property his own»
we must measure them by other prudent and reasonable men
as the standard." Now, it is in reference to this measure of
care and attention the language excepted to is used, and the
judge, continuing his thought, says: "We must compare his
conduct with what we may conceive careful men would have
done under similar circumstances"; which was as much as to
say: You must make the conduct of prudent and reasonable
men the standard; and what you think a prudent and rear
sonable man ought to have done under the circumstances, thai
you would require of this person under the circumstances. It
was not that the jury should follow their own notions, letting
go of the facts in the case; but, taking the facts, that they
should measure the care and diligence required under those
facts by the same rule a reasonable and prudent man, acting
in his own affairs, would exercise for himself under like cir-
cumstances. It is only by disconnecting kindred sentences^
and by severe criticism of the word "conceive," that the
learned judge can be convicted of error; but " to conceive " is
as often used to signify "to think," "to understand," "to have a
complete idea of," as it is "to imagine," "to fancy": Webster's
Dictionary.
None of the errors being sustained, the judgment is affirmed*
iNSiBUcnoN MUST BB Based ON EviDKNGB: StoUY, WkU, 72 Am. Dec 633^
and note 540; WhUe ▼. TAomiu, 80 Id. 347, and note 354; and if not sapported
by evidence should not be given: 0*MdUey ▼. Dom^ 73 Id. 403; Chkago eftL
R, R, Co. y. Owrge^ 71 Id. 239; Hoaley ▼. Bnxki, 71 Id. 262; Afidre t. Bod-
mom, 71 Id. 628; Abbott ▼. Gatch, 71 Id. 635.
GoNixiciiNo iNsrTBnonoNS aab Ebboneous, and ahonld not be giveiift
Adams v. Capronf 83 Am. Dec 566, and note 572.
Bights aitd Duties or VBasELS nr Kavioablb Watkbs: Baker t. Lemk^
75 Am. Dec 598, and extended note 601; tog and towi 75 UL 610L
Babnett V. Beed.
[61 PBNirsTLTAini. State, IMl]
Oa81» ivp HOT TBB8PA88, IB Pbopeb Beicedt f ot the malJdona aboM el
legal proceeB in issoing an execution, if the judgment and exeoatlon were
not void. «
Fact that Dbbt had bbbn Paid beiobb Ebtbt or Judokxbt does imA
make the sheriff a trespasser for executing process to enforoe it| or tbft
judgment creditor a trespasser for suing out the write
1865.] Basnett v. Rebd. 575
Non IB Entibklt Dibghasoxd at Law where one of aeveral sureties
thereon takes it op by another note of the principal, indorsed by sach
snrety, and he has no right in equity to keep the first note alive for his
protection in case he had to pay any part of the second note.
ApfSLLATX CoxTBT WILL NOT NoTiOB Ck>]CPLAiNT that the coort below
charged in answer toayerbal request after the axgunent had doeed.
The only qoeetion is. Was the instsuction correct 7
Pabtt IB LiABLi IN AonoN voH Maugious Abxtsb OF Leoal Psoons
who issnes execution on a judgment for a debt which had been paid be-
fore its entry, knowing it had been paid, and whether he caused the
judgment to be entered or not.
VnrricfnyB Damaoss mat bs Givbn to punish the defendant where actual
malice exists. In the absence of actual malice, the rule is compensatory
damages, or such as indemnify the phuntiE
Action on the case by S. M. Reed againet Bamett for mali-
ciously issuing execution on a judgment against the plaintiff,
known by the defendant to have been paid, and causing the
sale of the plaintiff's goods. S. M. Reed, the plaintiff, was a
surety as indorser with Barnett, the defendant, in a note made
by David Reed. When this. note fell due, it was taken up by
a new note made by David Reed, on which Bamett alone was
indorser. The latter note was taken up at maturity. Judg-
ment was entered on the first note against the Reeds and the
indorsers, and the plaintiff's property was sold under an exe-
cution on this judgment. There was evidence bearing on the
question of malice and want of probable cause, and the court
charged: ** Were the malice only such as results from a ground-
less act, and there is no actual malice or design to injure, the
rule is compensatory damages; but where actual malice ex-
ists,— a formed design to injure and oppress, — the jury may
give vindictive damages; that is, damages to punish the de-
fendant for his fraud and malice. Compensatory damages are
such as indemnify the plaintiff, including actual loss or in-
jury of property, loss of time and necessary expenses, counsel
fees, and any other actual loss the plaintiff suffered." The
jury foimd for the plaintiff. Other facts appear in the
opinion.
Oolden and Neale, for the plaintiff in error.
/. BoggSy for the defendant in error.
By Court, Strong, J. If the judgment against Reed, the
plaintiff below, and the execution thereon sued out against
him by the defendant were not void, case, rather than trespass,
was manifestly the proper remedy. Then the wrong of which
the plaintiff complained was the malicious abuse of legal
576 Babnett v. Reed. [PeniL
process, for which an action on the case lies. And surely it
cannot be maintained that the judgment and execution were
nullities because the debt was paid before the judgment was
entered. Had it been paid after the rendition of the judg-
ment, there would be more reason for arguing that the execu-
tion was void. There are decisions to the effect that ar
execution upon a paid judgment is a nullity, and that a sale
under it confers no title. I apprehend, however, even this h
true only as regards a purchaser at the sale who knew that
the judgment had been paid. But no case holds the doctrine
that the fact that a bond or a note had been paid before a
judgment recovered upon it makes such a judgment void in
law so as to make the sheriff a trespasser in executing process
awarded to enforce it, or the judgment creditor a trespasser for
suing out the writ. If, therefore, the defendant in this case
was liable at all, he was liable in the form of action selected
by the plaintiff.
It does not appear to have been seriously questioned in the
court below that Samuel M. Reed was a mere surety for David
Reed in the $1,250 note, the note upon which the judgment
was entered. The proof was positive that he was a surety, and
there was no conflicting evidence. When, therefore, the note
was paid at the bank at its maturity, and the new note for
$1,264 was given, having upon it the names of David Reed
and John Barnett only, Samuel M. Reed was entirely dis-
charged at law. This is admitted. But it is insisted that the
first note was kept alive in equity for the protection of Bar-
nett, who was also a surety for David Reed, and that Barnett
had a right to hold it and use it in event of his being com-
pelled to pay any part of the $1,264 note. This position is
untenable. Conceding that the first note was paid by the new
note given by David Reed and indorsed by Barnett, it was in
no sense a payment by Barnett. He was at best but an ac-
commodation indorser of the new note. Without actual pay-
ment, he had no claim to be subrogated to the rights of the
bank against Samuel M. Reed, the indorser of the first note;
and when the first note was paid, he ceased to be a co-surety
with that indorser. He was not then in a condition to avail
himself of any of the rights of the common creditor, and the
first note did not continue to exist for his benefit. There is
still another reason why all possibility of resort to Samuel M.
Reed was gone. As surety in the first note, it was his right to
insist that the debt should be paid by his principal when it
I8G5.] Barnett r. Reed. 577
became payable. But when the bank took a new note &om
David Reed, extending the time for payment of the debt, it
deprived Samuel M. Reed of the power to compel payment of
the debt at the maturity of the note which he had indorsed.
It tied up hifi hands for thirty days. To this arrangement
Barnett became a party. How, after this, could the surety
remain liable, either in law or in equity? There had been a
change of his contract, so far as it appears, without his con-
sent. The whole drift of the argument against the ruling of
the court below upon this part of the case rests upon the as^
sumption that in some way Barnett paid the note indorsed by
S. M. Reed, or some part of it, or that he continued liable to
pay it. The assumption is at war with the facts as proved and
as found by the jury. As already said, his indorsing the sec*
ond note given by David Reed to the bank was no payment,
and the proof is uncontradicted that he paid no part of that
note. The whole debt was paid by David Reed, and paid be*
fore the judgment on the $1,250 note was entered. S. M. Reed
could not be made a security for the payment of the second or
subsequent notes in virtue of his indorsement or becoming
security in the first. In every aspect of the case, therefore, at
law and in equity, the liability of Samuel M. Reed had
ceased before Barnett attempted to use the process of the
court against him; and the court was entirely right in char-
ging the jury that the note signed by him could not be kept
alive for Barnett's use.
We cannot notice the complaint that the court thus charged
in answer to a verbal request preferred by the plaintiflT's coun-
sel after the argument had closed. Our only duty is to con-
sider whether the instruction was correct.
The next question raised by the record is, whether there
was suflBcient evidence of a want of probable cause for the
defendant's acts to justify the court in submitting the case to
the jury. In regard to this the defendant submitted several
points. It is needless to go separately over the answers given.
The cause of action, as set out in the declaration, was in sub-
stance as follows: After reciting that the plaintiff, as surety of
David Reed, together with the said David Reed, John Barnett,
and others, had given to the Kittanning Bank a warrant of
attorney to confess judgment for the sum of $1,250, and that
the debt had been fully paid before the wrongs thereinafter
complained of were committed, the declaration averred that
the defendant, knowing these facts, wrongfully, unjustly, and
▲m. Dia Vol. LXXXVm-sr
678 Barnett v. Reed. [Penn.
maliciously causec a writ of fi. fa.y and snbsequently an alias,
to be issued, founded on a judgment entered under color of
the said warrant of attorney, and theieunder caused and pro-
cured the personal property of the plaintiff to be sold. Of the
facts thus averred there was very abundant evidence. The
position taken in the court below, and again here, was, that
there having been no averment that the judgment was mali-
ciously entered, issuing an execution upon it could not have
been an abuse of legal process; in other words, that the judg-
ment was a justification, and furnished probable cause. It is
true there was no such distinct averment, but if the defendant
knew that the debt had been paid, of which he could not have
been ignorant, whether he caused the judgment to be entered
ir not, it was an abuee of legal process to attempt to enforce
ti\e payment of the judgment and collect the debt again. The
issue of the execution imder such circumstances was not a law-
ful act. The defendant's knowledge of the payment tended
inevitably to prove that there was no probable cause, no justi-
fication for his conduct. It was therefore entirely right to
submit the case to the jury with the instruction that if Bar-
nett knew the debt had been paid, they might find for the
plaintiff. Knowledge, indeed, was not itself want of probable
cause or malice, but it was too pregnant evidence of it to per-
mit the court to withdraw the case from the jury.
The instruction given respecting the measure of damages
we regard as unexceptionable.
Judgment affirmed.
Ga8b and Tbbbpass, when CoNouuunT BusDiBB: Vm Drmor v. JBkiff,
76 Am. Deo. 643, and see note 645.
Rbmedt vor Wrokoful Usb of Writ: See Pcmnf v. ParnJea, 74 Am.
Deo. 328; Barhtr y. SUiwn, 66 Id. 457, and note 458.
ViNDicnvB Damaoxs, when and for wfast pnrpoees alloiwed: SnMwkk v.
Ward, 75 Am. Deo. 453; Ohio etc B. B, Co, v. TmdaO, 74 Id. 259; no room
lor, where the injury was not willM: HeU v. Olamdimg^ 82 Id. 537.
Thx prdigzpal gabs n cmD to the first point stated im the ifffahM^ ia
KtMi/Bd^ y. BamtU, 64 Fa. St 141
1865.] ALLEGHBinr Codstt v. Cleveland etc. B. R. Go. 579
County op Allegheny v. Cleveland etc. R. R Co.
[61 Pbvvbtlvania State, 228.]
CoBPOBATiON MUST DwxLL IN Place OF ITS CREATION, and Can have no
legal exifltenoe beyond the bounds of the sovereignty which created il
OospORATioN Cbabtsbbd bt Two Statxs bt Samb Name and SttlBi
clothed with the same powers, and intended to accomplish the same ob-
jects, fnlfilling the same duties in both states, is a distinct and separata
body in each state.
Legal PREsuMFriON n that MEinnntfi of Ck>BPOBATioN abb Citizenb of
the state that created it, and no averment or evidence to the contrary
is admissible for the pnrpoee of withdrawing the soit from a court of the
United States.
Burr bt Cobforation Gbbaxxd bt Ck>iicuBBXNT Lboiblatioii of Two
States is Onb in which citiEena of each state are joined as plaintifE<
and if the defendant is a dtiian of either of those states, the suit cannot
be maintained in the federal courts.
Action of debt, to recover the sum of one hundred thousand
dollars, on an agreement entered into between the parties.
The defendant set forth that it was a corporation created by
the laws of Ohio, and a citizen of that state; that the plaintiff
was a citizen of Pennsylvania; that the matter in dispute ex-
ceeded the sum of five hundred dollars, exclusive of costs;
and prayed that the case be removed for trial into the federal
court, which prayer ^was denied. The defendant was first in-
corporated by the state of Ohio, and then by Pennsylvania.
The opinion more fully states the case.
Hamilton and Acheson and W. 8. 0. Otisj for the plaintiff
in error.
T. H, ShewM and O. ShiraSj Jr.^ for the defendant in error.
By Court, Woodward, C. J. A sharp conflict of opinion
upon the citizenship of state corporations prevailed for many
years in the supreme court of the United States, and finally
culminated in what appears to have been a unanimous judg-
ment in the case of Ohio and Mississippi R, R. Co. v. Wheeler^
1 Black, 286.
In that case, the railroad company, claiming to be a citizen
of Ohio, had brought suit in the circuit court of the United
States against Wheeler, a citizen of Indiana, and the question
was upon the jurisdiction of the court under the clause of the
constitution which gives the federal courts jurisdiction in con-
troversies between " citizens of diflTerent states." It appeared
that the company had been incorporated by concurrent legis*
lation of the two states of Ohio and Indiana, and that the
580 Allegheny County v, Cleveland etc. R. R. Co. [Penn.
road ran through both states, but that the principal office and
place of business of the company was in Ohio. The resi-
dence of the directors and stockholders was not stated in the
report. Chief Justice Taney, after a rapid review of the ad-
judged cases, stated with great clearness the following prin-
ciples:—
1. That the artificial person or legal entity known to the
common law as a corporation can have no legal existence out
of the bonds of the sovereignty by which it was created. It
must dwell in the place of its creation.
2. That the corporation in question was chartered by the
two states of Ohio and Indiana, by the same name and style,
clothed with the same capacities and powers, and intended to
accomplish the same objects, and is spoken of in the laws of
both states as one corporate body exercising the same powers
and fulfilling the same duties in both states; and yet that it
bad no legal existence in either state except by laws of the
states, and neither state could confer on it a corporate exist-
ence in the other, nor add to or diminish the powers there
exercised; therefore, that it was a distinct and separate cor-
porate body in Indiana from the corporate body of the same
name in Ohio.
3. That where a corporation is created by the laws of a
state, the Ifsgal presumption is, that its members are citizens
of the state in which alone the corporate body has a legal
existence; and that a suit by or against a corporation in its
corporate name must be presumed to be a suit by or against
citizens of the state which created the corporate body, and
that no averment or evidence to the contrary is admissible, for
the purpose of withdrawing the suit from the jurisdiction of a
court of the United States.
4. It followed from these principles that a suit by a corpora-
tion created by the concurrent legislation of two states was,
in legal contemplation, the suit of the individuals who com-
pose it, and must therefore be treated as a suit in which citi-
zens of each state are joined as plaintiffs. If the defendant
was a citizen of either of those states, such a suit could not be
maintained in the federal courts where jurisdiction of the case
depended altogether on the citizenship of the parties, and
consequently, the plea to the jurisdiction in that case was sus-
tained.
These principles admit of ready application to the case in
hand, nnd decide it at once. The Cleveland and Pittsburgh
18G5.] Gbaham v. Commonwealth. 581
Railroad Company was first incorporated by the state of Ohio,
and then by Pennsylvania. It became thus a separate corpo-
ration in each state. The legal presumption that results from
such legislation is, that the members of the corporation are
citizens of both states, and no averment or evidence is to be
received to countervail this presumption. The averments and
affidavits we have upon the record corroborate the presumption,
which, for purposes of jurisdiction, would be conclusive with-
out corroboration. A suit, then, against this corporation by a
citizen of Pennsylvania is a suit against citizens of Ohio and
Pennsylvania, who have united themselves in business under
the shadow of the corporate name, and because some of the
defendants are citizens of the same state as the plaintiff, the
federal courts have not jurisdiction, and the application to
certify into that jurisdiction was properly refused.
Affirmed.
O0&POBAT10118 Obbatid without Logautt SpBonmED m thzib Cbartxbs
9XB regarded, aa by implicatioa of law, local to the state creating them: Asph^'
waUr, Ohio efo. B. B. Co,, 83 Am. Deo. 829; and see note 333, as to domicila
of corporation; Bay State Iron Co, y. Cfoodali, 75 Id. 219; Baltimore etc. B. B.
Oo, ▼. OaBaMiet 85 Id. 263; residence o^ for purpose of action by: Coimeetieut
^k.B, B.C0. y. Cooper, 73 Id. 319.
Gbaham v. Commonwealth.
rSl PXNHSTLyAFIA Statb, 256.]
AamroB of Oitxndxb in Milttart Seryi^je or Untted Siates does not
preyent the running of the statnte of limitations which bars criminal
proceedings when not commenced within two years.
fiOU^DEB Hff MlLITART SbRYIGI OF UhITED StATES RsHAINS "iNHABTrANT
of state, or usual resident therein,** and is not within a statutory proyisioQ
meant for }>ersons escaping and absenting themselyes to ayoid punish-
ment until lapse of time might enable them to return with impunity.
Pbosecutjon for adultery. The opinion states the case.
Tlwmas White, A. TT. Taylor^ and Stewart and Clarl^ for the
plaintiff in error.
William Banks, for the defendant in error.
By Court, Thompson, J. The crime of adultery, of which
the defendant below was convicted, was laid as having been
committed on April 26, 1862. That is found by the special
verdict, and a repetition of it in June, but before the 22d.
The prosecution was commenced on the 22d of June, 1864,
582 Oraham v. Commonwealth. [Penn,
and being instituted more than two years after the commission
of the offense, the plaintiff in error claims that it was barred
by the limitation in the seventy-seventh section of the act of
the 3l8t of March, 1860 (Purd. Dig. 265), and that he was not
liable to conviction and sentence. After fixing a limitation of
two years, within which certain misdemeanors mentioned in
the act may be prosecuted, of which adultery is one, there is a
proviso in the section, that where any offender "shall not have
been an inhabitant of the state, or usual resident therein during
the respective times for which he shall be subject and liable
to prosecution," he shall be subject within a similar period of
time during which he shall be an inhabitant of or usually a
resident within this state.
The only question we have to deal with is, whether the &ctB
found do or do not establish that the defendant, Graham, was
an "inhabitant and usually a resident of the state" during
two years after the commission of the offense. EEis residence
At the time was in Indiana County, where he remained for
several months after committing the offense charged, until he
entered the service of the United States as a soldier. He
'served in Maryland and Virginia, and returned home to his
&mily several times, and remained for considerable periods,
once as a paroled prisoner, and at other times on furlough,
and when eventually discharged in June, 1865, returned to
his family and residence at his home in Indiana County.
We will not spend time in trying to ascertain what the effect
would be, if any, where, as in this case, the statute had com-
menced running before the defendant entered the army and
went with it into Virginia, for we think that all the time he
was in the service his absence was temporary, and that he
remained "an inhabitant of the state or usual resident therein,"
so that there was not the least obstacle in the way of institut-
ing a prosecution against him, or even in claiming him to
answer. His usual residence was not changed by the fact
that he obeyed the call of the President, and volunteered to
fight for his country at her command. To hold the contrary
would be against the spirit of all our legislation. A soldier is
regarded as a voter, because a citizen of the residence he left
before entering the service, and he votes there wherever he
may be. So he gets a stay of execution as a citizen-soldier, if
judgments happen to be against him in the county from which
he volunteers or enlists. It would be as ungracious as \m-
reasonable to hold that the citizen who absents himself in
1865.] Graham v. Commonwealth. 583
obedience to the call of his country thereby loses the advan*
tage of residence by such an act. This is not so; his residence
remains whether it operate for or against him. The act of the
2d of April, 1822, although it has no other effect, shows what
the legislative understanding of this kind of absence was. It
prohibits civil process from issuing against a returning soldier
until the expiration of a certain period, — "after his return to
his usual place of residence." Of course, that means the resi-
dence he had before he entered the service. A soldier in the
field has no residence there; the word means a "dwelling.''
*'To reside" means to dwell permanently for any length of time;
'^ a settled abode ": Webster. He is obliged to go where he is
ordered, and cannot, if he desired it ever so much, dwell at his
usual place .of residence. "Usual" residence, means "cus*
tomary," "common": Webster. If the offender's customary
residence is in the state during the two years, this is all the act
requires. That it was in this case the facts found show. He
remained at it personally for near five months after the offense
charged in the indictment, and returned to it always when he
could during the time he was held to service as a soldier, and
permanently when he was discharged.
If we were to yield to the construction contended for, —
namely, that a man is not an inhabitant of the state, and cannot
be usually a resident of it, who is not within it all the time dur-
ing the two years, — we would in effect repeal the limitation as
it regards many persons who, residing near the borders of the
state, or whose business requires it, are out of the state numer-
ous times within every two years. In such cases they would
be forever liable, unless they tarried some time or other dur-
ing two whole years in the state. The proviso does not apply
to such cases. It was no doubt meant for persons escaping
and absenting themselves to avoid punishment, until the lapse
of time might enable them to return with impunity. The
H>ldier does not belong to this class. Many times during two
years after the offense James Graham was personally within
the reach of an ordinary warrant; and all the time the place
of his residence was known, and the prosecution might at any
time have been commenced as well as at the time it was, for
he was at that time in actual service. But this is only to
show how little room there is for complaint on the score ol
absence, or excuse for not instituting the prosecution sooner.
It not having been commenced within two years, the defend-
ant being an "inhabitant and usual resident of the state"
I
584 Evans v. Matson. [Penn.
during this time, it was barred when it was commenced, and
the defendant was wrongfully convicted and sentenced.
The sentence is therefore reversed.
Efixct gf ABsnroB ibom 9tatb upon Bunimro or Seatotb of
rations: Oook t. ffolme$, 77 Am. Bea 648; Lcmgdm ▼. Domd^ 6S IdL 5AU
•Ddiioto644 •
Evans v. Matson.
pa PnmBTLYAinA Stats, 868.J
Oowai'ituorioy or FoBTHOOMCfo Bond. —A sheriff held distmot axeoatJoni
againflt L. and 0., and levied on lumber m the property of L. He de-
livered the lumber to the plaintiff in the exeoation against L., taking a
forthcoming bond reciting that execntion and the levy of the goods as
the property of L. The property was afterwards ascertained to be C's.
Held, that tiie obligors in the bond were liable for the forthcoming of the
lumber to meet the exigencies of the executions against C, notwith-
standing the recital in the obligation of its ownership.
SHBRcnr IB NOT EsTOPFXD isou Dkntino Tbuth of bis Bjtobn as against
one who fraudulently procured him to make it.
Action of debt by Uriah Matson and others, assignees of
one Mitchell, sheriff, against Evans and others, his sureties,
on a bond. The verdict was for the plaintiffs. The head-
note and opinion sufficiently state the case.
OordonSf for the plaintiff in error.
W. P. Jenksy for the defendants in error.
By Court, Strong, J. The assignments of error in this case
raise but two questions. The one relates to the construction
which should be given to the bond, and the other to the effect
of the sheriff's return to the executions in his hands. When
the bond was given, there were several executions in the
sheriff's hands, one against F. D. Lake, and the others against
William Corley. Of course, the executions were liens upon
the personal property of the defendants. In virtue of one of
them, at the suit of J. B. Evans, the sheriff had levied uj^on
thirteen rafts of pine boards as the property of Lake. These
he placed in the possession of the plaintiff in that execution,
taking his bond with sureties for the delivery of the rafts on
the 24th of April, 1856. But though levied upon as the prop-
erty of Lake, the rafts appear to have been the property of
Corley, and as such, the sheriff had a lien upon them in virtue
1865.] Evans v. Matbon. 585
of the executions in his hands against Corley. Evans, having
thus obtained possession of the lumber, ran it out of the
county before the day fixed for its delivery to the sheriff, and
subsequently stayed his own execution against Lake. Hav-
ing in this manner prevented the sheriff from making a proper
sale of the lumber under the executions against Corley, he
now contends that his bond bound him only to deliver the
rafts to the sheriff to answer his own execution against Lake,
and that having stayed that, there was no breach of the bond
by which the sheriff was damaged. But this was not the ex-
tent of the obligation which he and his sureties assumed.
They bound themselves unqualifiedly in the sum of ten thou-
sand dollars to deliver the lumber to their obligee on the
twenty-fourth day of April, 1856. Their obligation was ab-
solute. It was not merely to deliver so far as necessary to
answer the execution against Lake, or necessary for any speci-
fied purpose. They had nothing to do with the nature and
extent of the sheriff's ownership. It was not for them to in-
quire what claims he might have at the date of the bond, or
at the time fixed for the delivery. But if the sheriff seized
the lumber as the property of Lake when in truth it belonged
to Corley, he could not surrender it to Evans without being
answerable to Corley or Corley's creditors for its whole value,
no matter what may have been the amount of the execution
against Lake. That execution was no measure of his interest
in the possession of the property. Yet that entire interest, it
must be presumed, the parties intended to secure by the bond,
in the absence of any expression to the contrary, as fully as
it would have been secured by the sheriff's retention of pos-
session: Watmough v. Francis^ 7 Pa. St. 215, 216. It would
be giving undue effect to the recital introductory to the de-
feasance were we to hold that it restrains the liability of the
obligors. It is explanatory of the sheriff's possession, but
nothing more. It is itself no part of the condition. Such
being, in our opinion, the proper construction of the bond, it
was not error to refuse to instruct the jury that failure to de-
liver the rafts was no breach of the bond for which the defend-
ants were liable, if the property was not required to answer
the execution against Lake.
The next question relates to the effect of the sheriff's return
to the executions against Corley. It was that he had levied
upon the rafts on the nineteenth day of April, 1856 (the day
after the bond was dated), and sold them on the 23d of April,
686 Evans t;. Matson. [Penn.
under a prior execution. This, it is insisted, concludes the
sheriff, and establishes against him that he resumed pos-
session of the lumber after the bond was given, and con«
sequently, that the obligors were no longer under obligations
to deliver it.
Undoubtedly, a sheriff is bound by his return, and a return
of a levy is proof against him that he has taken possession of
the goods upon which the levy was made. In this case, as
between the sheriff and the ezeaution creditors of Corley, the
return would conclusively establish that he had possession of
the rafts on the 19th of April, 1856. But the question now
is between him and Evans, who was no creditor of Corley,
and it is whether Evans can set up a false return which he
fraudulently procured the sheriff to make. The verdict of
the jury determines that the return was thus procured by
Evans. If so, is it in law any return at all? Can he avail
himself of it as an estoppel, or use it for any purpose? The
answer is plain. Fraud vitiates everything it touches. Even
judgments fraudulently procured are void, and sheriffs' re-
turns are no more sacred. And nothing is more clear than
that a guilty participant in a fraud can derive no legal bene-
fit from it. But it is argued that though Evans might b^
responsible for his fraud in an action of trespass upon the
case, it cannot be made use of in this action on his bond.
Not so. It is not sought now to recover damages for his tort,
but to prevent his using the tort to relieve himself from his
contract. By setting up the return as a defense to this ac-
tion, he is setting up his own fraud and endeavoring to de-
duce a right from it. He is in effect the actor. This cannot
be permitted. In no form of action can he, either as claimant
or defendant, obtain an advantage from his own covin. He
may lose, but he cannot gain. And certainly his sureties in
the bond can, in this particular, stand in no better position
than their principal. They assumed the same obligation that
he assumed. The obligee has done nothing voluntarily to
release them. And it was not in the power of their prin-
cipal to release them by any act of his that did not discharge
the bond. Much less could he release them by a fraud upon
the obligee. The court was therefore right in refusing to
affirm the defendant's second, third, and fourth points, and
in leaving to the jury to find whether the returns and the sale
were void in consequence of the fraudulent conduct of Evans,
and instructing them that if the returns and sale were fraudu-
1865.] Evans v. Matbon. 687
lently procured by Evans, and therefore void, they were no
bar to the plaintiff's recovery.
Judgment affirmed.
LlABIUTT OV ShXRHV lOB FOBTBOOHDIO OF PXUmBTT I^WISD 031 hf
him under an ezecatum: HartUtb t. JlicLa$ie, 84 Am. Dee. 464b
SzmiT OF LiABiUTT OF SuBiTiiB ON Shxbdi^b Bovd: OommoHweallh t.
Swope, 84 Anou Deo. 518; HoObmm y. OmrroU, 84 Id. 600.
Sbxbo^b BsTUBir, wmnr OoiiOLU8iyi» A3xi> wmnr vor: WWkend t.
Kf^es, 81 Am. Dee. 672; and note 076| may be ehown to be fdm in Louui-
•na: Monti y. Mammmier, 74 Id. 424.
OoERBntuonox of Kihwiuli StAinm ooNonarxvo Dutiet of At-
TACBMD VxmL upoa ezeovtiai el foithooiDliif beodx HaOmi t* JfeMlool^
79 Am. Dee. 066^
OASES
SUPREME COTJET
or
TENNESSEE.
Husky v. Maples.
[2 COLDWSLLi 25.J
TsEsawmox xv Law tbat Debt was Paid is Eaiskd whsra Hie creditor
liT68 near his judgment debtors for thirteen years after the rendition ci
the judgment, makes no effort after the first year to coUeot it, and mores
off without any farther effort to collect, the defendants dazing all that
time haying ample property to satisfy the judgment.
SiTXN TXAB3 HAYINQ ElAPSED ATrXB RENDITION OV JUDGMSNT, the duv-
acter of the creditor for strictness in the coUectiim of debts may be left
to a jury to show that the judgment had been paid.
Action to recover amount of judgment. The opinion states
the case.
McOirdey^ for the complainant.
Swan and MeCampbeUj for the respondents.
By Court, Shackelford, J. In 1841, Ira P. Hill executed
his note to John Husky, with Thomas Maples, Joseph Snapp,
and Thomas Hill as his securities, for about five hundred dol-
lars. Hill was in the mercantile business at that time. Be-
fore his death, which occurred in 1843, he placed in the hands
of John Husky, the plaintiff's intestate, goods, notes, and ac-
counts more than sufiScient to pay the note, who remarked
he had enough to secure him. Afterwards, in 1844, he com-
menced a suit on the note against the securities; and on the
6th of August, 1844, recovered a judgment for $470 and costs,
from which judgment an execution issued, and was levied on
the lands of Thomas Hill. The execution was returned with
688
Sopt. 1865.] Husky v. Maples. 689
the indorsement "not time to sell." On the 6th of January,
1846, an alias execution issued, and was returned not satisfied.
On the 28th of January, 1847, an execution was again issued,
as appears, for costs, and they were paid equally by Maples
and Snapp. Husky lived in the neighborhood from the rendi-
tion of the judgment until 1857 or 1858, when he removed to
Texas and died. A short time before leaving, one of the se-
curities applied to him to be discharged from the judgment,
and offered him a horse. He replied, "he could not, or would
see him again." The property of the securities was unencum-
bered, and sufficient to pay the judgment from the rendition
of the judgment until the commencement of this suit. In
January, 1859, administration was granted on the estate of
John Husky, by the county court of Sevier, and the adminis-
trator commenced this action. The record of the judgment
had been destroyed, and suit was brought in the circuit court
of Sevier. The parties agreed, under the provisions of the
code, section 4236, to try the matters as a chancery cause in
that court. The case was referred to the clerk to take proof
and report, which was done. His report shows the judgment
was rendered on the 6th of August, 1841, for $470.77, interest
to 6th of March, 1861, $469.21, making the judgment and in-
terest $939.98; that no part of judgment had been paid, but
that John Husky did receive debts and property sufficient
to satisfy the note upon which the judgment was ^rendered.
The report was excepted to, and the exceptions disallowed by
the judge, and the same confirmed, and judgment rendered
for defendants, firom which the plaintiff has appealed to this
court..
We think there is no error in the judgment of the circuit
judge. The lapse of time in this case, with the circumstances,
raises the presumption of payment. Presumptions may be
removed by proof; but there are no facts developed in this
record to rebut the presumptions created by the proof and
lapse of time. The plaintiff lived in the neighborhood for
thirteen years after the rendition of the judgment; and from
the first year after the rendition of the judgment made no
effort to collect the debt, — left the country without an effort
to force the collection. That the defendants had ample
property to satisfy the judgment at any time after its rendi-
tion amounts to a presumption in law the debt was paid.
This court held, in the case of Leiper v. Erden^ 5 Yerg. 97,
that after a lapse of seven years the character of a creditor
590 HuBEY V. Maples. [Tenn.
for strictneBB and cloBenesB in the collection of debte might be
left to a jury to show the judgment had been paid. '^ Presump-
tions are founded on the ordinary course of things. It is not
usual for a creditor to delay enforcing the payment of a debt
due him for such a length of time. The fact that he does so
evinces a consciousness that it is not owing, and creates a
strong presumption of payment"
We are satisfied the judgment of the circuit court iBConeot^
and it is affirmed.
PBX8UilpTi0ir OF PAnaarr ibok Lamb or Tmi: 8oe Walksr ▼.
mn, 73 Am. Deo. 207; BmUkpOerY. /«0N»63Id. 732» and note 731
Erraon of Laohis: See BmUh ▼. Thompmm^ 54 Am. Dea 126^ and notoi
Johnnn v. TotOndn, 62 Id. 212.
P&ESUMTTZONS OF PaTHZNT FBOK LaPSB OF TmX Ll88 TBAV Fm02> OF
LncrrATioH. — In the case of a claim not within any of the atatntea of limita-
tion, no preanrnption of payment ariaea in leaa time than twenty yean, nnlaaa
corroborated by proof of other circamatanoea: Sparhawk y. BwH, 9 Vt^ 41.
Thna» it ia well aettled that a complete legal preanmptiaa of the payment d
a bond, or other inatrament of a like natnre, doea not ariae abort of twenty
yeara: See Oswald y. Leg^ 1 Term Bep. 270; CoUeO y. Bmtd, 1 Camp. 27;
but after the lapee of that period payment or releaae ought to be preaomed:
Id.; Bapoe y. Lahe, 17 S. 0. 481. If the fall twenty yean haye expired, even
an admiaaion that the payment haa not in fact been made cannot^ of itael^
deetroy the effect of the preanmption: McQueen y. FkCeher, 4 Bich. £q. 152;
and aee Pryor y. Wood, 31 Pa. St 142; Hemdan y. BarOeU, 7 T. K Men.
449. And it ia well aettled that a lapee of time leaa than twenty yeara, aided
by drcnma&ncea which contribate to atrengthen the preanmption of payment
from lapae of time, may be aubmitted to a jnry aa gronnda for the preanmp*
tion of the fact of payment: Hnghe$ y. Hughea, 64 Pa. St. 240; Brigga's Ap^
peal, 93 Id. 485; and alight circomatancea may be giyen in eyidence for thai
pnrpoae, in proportion aa the preanmption atrengthena by the lapae of timet
Walker y. Bmermn, 20 Tex. 706; Brubaker y. Tayhr, 76 Fa. St. 83; and aea
SmkkpeUr y. /«on, 4 Rich. 203; S. 0., 53 Am. Dec 732, and caaea cited in
note 734. Thua tiie character of the plaintiff for atrictnesa and doaeneaa in
the collecticn of debta due him may be giyen in eyidence aa a circomatanca
that the debt haa been paid: Leiper y. Erwin, 5 Yeig. 97; ao, eyidence of the
needy drcnmatancea of the obligee, and of the eaay and aolyent circomatancea
of the obligor, wonld in moat casea be competent: Hughes y. Hughes, 64
Pa. St. 240. So if a bond, judgment, or decree be permitted to lie dormant
for sixteen years, with no demand or payment of interest, or an attempt to
enforce the collection, it is anfficient to raise a presumption of payment: Mc'
Daniel y. Ooodall, 2 Cold. 391; and see Baker y. Stonebroker, 36 Mo. 338;
Bender y. Snyder, 6 Barb. 63. But in an action on a note, it was held thai
eyidence of tiie pecuniary ability of the maker, and the pecuniary distress of
the holder, was not sufficient, of itself, to support the presumption of pay-
ment: Alexander y. Dutcher, 7 Hun, 430. So mere lapse of time, less than
twenty years from the rendition of a judgment, does not raise a presumption
of payment, although it be shown that the debtor was, dtiring all auch time,
abundantly able to pay: Daby y. Ericsson, 45 N. Y» 786^ If a ahorter period.
Sept. 1865.] Howell v. Cobb. 591
evea a single day less than twenty years, has elapsed, the presumption of
satisfaction from mere lapse of time does not arise: Sadler v, Kennedy, U
W. Va. 187; CalweUY. Prindle, 11 Id. 307; JTumaa y. EunniooU, 54 Qa. 337.
On the other hand, payment of a judgment, etc., may be presumed from the
lapse of a shorter period than twenty years, when there are persuasive cir-
cumstances which may be submitted to a jury in connection with it: Jlfoore
T. Smiih, 81 Pa. St. 182; Perkins v. Hawkins, 9 Oratt 656; Gamier t. Ren-
ner, 51 Ind 372. And where a note and mortgage were executed in 1858, due
in one year, and action was not commenced thereon until 1880^ it was held
that very slight evidence would sustain a finding of payment: PaUie y. WU'
iofi, 26 Kan. 826.
HowBLL V. Cobb.
[2 OOLDWSLL, 1011
SUKJSTlJHi OF OUABDIAV AMB EhTITLXD, IN EQUITT, TO BB BSLIKVSD from
their suretyship, or secured against loss, before payment of their princi-
pal's debt.
Undsb Tenkxsbxb Cods, Subut bib Bight or Aonoff AOAisBr Pbiwci-
PAL before the debt is due, but no final decree shall be made until the
debt is due; or if the principal will secure oi ^demnify the snrefy, the
attachment may be discharged.
Bill in equity. The opinion states the ease.
Baxter and Champion, for the oomplainants.
James R. Coche^ for the respondent.
By Court, Shackelford, J. This is a bill filed by com-
plainants against the defendant, R. M. Cobb, as the guardian
of Margaret Howell. In the year 1862 he was appointed
by the county court of Knox the guardian, and entered into
bond, with ibe complainants as his sureties. As guardian,
he received, in December, 1862, into his hands one thousand
dollars, and in August, 1863, three hundred dollars. He has
made no settlement of his accounts as guardian, or return of
the amount that came into his hands as required by law. He
had but a few days previous to the filing of the bill in this
case conveyed his real and personal property to trustees to
secure the payment of individual creditors, — not including
the debt for which complainants were sureties. The object
and purpose was to avoid the effect of certain attachment
suits pending against him. The equities in the property con-
veyed were much more than suflScient to pay the debt in-
cluded. The defendant had refused to make any effort to
release or secure complainants. An attachment was prayed
for and awarded, and the equitable interest attached.
^
f
592 Howell v. Cobb. [Tenn.
The bill was demurred to, and the demurrer allowed by the
chancellor. The complainants have appealed to this court.
In allowing the demurrer to the bill, we think the chancellor
erred. Independent of the statutory provision authorizing
sureties to sue out attachments without first paying the debt
of their principal, a court of chancery has original jurisdiction
to grant relief in cases of sureties of debtors and others. Jus-
tice Story, in his Equity Jurisprudence, vol. 2, par. 849, says:
'^Another case of the application of the remedial justice of
courts of equity by a bill qvia timet is in case of sureties and
debtors and others. We have already seen that if a surety
after the debt has become due has any apprehension of loss or
injury from the delay of the creditor, he may file a bill of this
sort to compel the debtor to discharge the debt or other obli-
gation for which the surety is responsible." This is a well-
settled principle in equity jurisprudence. This surety is not
required to wait the action of the creditor if he believes him-
self in jeopardy; he has the right to come into a court of
equity against the debtor for his indemnity. In the case of
Ransbaugh v. Hayes, 1 Burr. 190: "The court will, although
the surety is not troubled or molested for the debt^ yet at any
time after the money becomes due on the original bond, this
court will decree the principal to discharge the debt, it being
unreasonable that a man should always have such a cloud
hanging over him." This principle was recognized in New
York: King v. Baldwin, 2 Johns. Ch. 564, in which it was held
the surety had the right, on the day the debt was due, to come
into chancery and insist on its being put in suit. The same
principle was settled in Hays v. Ward, 4 Id. 125; Antrobvs v.
Davidson, 3 Mer. 579. It is a principle founded in equity and
justice, and accords with the principles of common sense and
natural equity of mankind. It is insisted the complainants
had unembarrassed remedy in the county court by having the
guardian removed. Upon an application to that court, it
would be the duty of the court to remove him, but it would
not relieve the complainants from the obligations of the
bond for which they are the sureties. That court has no
power to enforce the payment of the money from the defend-
ant; and the guardian appointed would have to seek the aid
of a court of chancery or a court of law, upon the bond, by
suit against the guardian and his securities. The object and
purpose of the bill is to evoke the aid of the court of chancery
to secure indemnity to them as securities; and under the well-
I
Dec. 1865.] Swano t;. State. 5\)S
settled principles of chancery jurisprudence they are entitled
to it. The defendant having conveyed and covered up his
property, and having an equitable estate or equity existing in
his property, an attachment was the proper remedy to attain
the justice of the case and enforce their claim. Section 3457
of the code gives to the surety his right of action against the
prinoipal before the debt is due. Section 3448 provides no
final decree shall be rendered until the debt is due. Section
3469 provides, if the principal will give security, or indemnify
him, the attachment shall be discharged. Construing these
sections of the code with the general principles governing a
court of chancery, we are of opinion the complainants are en-
titled to relief. The surety has a right to come into a court of
chancery to have indemnity; and unless the defendant gives
the security satisfactory tjo the court to indemnify the com-
plainants, they have the right to ask a decree to sell the prop-
<Tty attached; and it is the duty of the court to order a sale,
and make ^uch application of the funds as will effect the ob-
ject and purpose sought by the bill.
The decree of the chancellor will be reversed, and the cause
remanded for proper proceedings in the chancery court
Rights or Sttretibs whbm Guardian Transfkbs Ward's Propibtt iq
payment of his own debt: Hunter ▼. Laxoreiux^ 62 Am. Deo. 640.
RiQHTs 07 Sureties upon Guardian's Bond under law of Georgias
Oabom ▼. Ordinary eic, 63 Am. Dec 230.
Sureties upon Ofugial Bonds are not Concluded, as General Rule,
by a decree of judgment against their principal, unless they have had their
day in court or an opportunity to be heard in their defense: Inoin v. Backus,
73 Am. Dec. 125; see Chamberlain ▼. Godfrey , 84 Id. 690; CJtarlea v. JlosUnSt
83 Id. 378.
The principal case is cited in support of the doctrine that a surety may
bring his creditor and his principal before a court of equity to compel the
payment of debts, and to be exonerated, and attack frandoleait deeds before
judgment, in Oreene v. Stames, 1 Heisk. 589.
SwANQ V. State.
12 COLDWELL, 212.1
Plea of Guiltt mat be Withdrawn, and New Trial Awarded, on the
affidavit of the defendant, with corroborating proof, that such plea and
the submission of his case were made through fear and official misrepre-
sentations, and in ignorance of his rights.
Indictment for gaming. The facts are stated in the opinion.
am. Dsa Vol. LXXXVni-SS
694 SwANG V. State. [Temi.
Colyar and Marks, for the plaiDtiff in error.
Thomas H. ColdtoeU, attomey-generaly for the state.
By Court, Milligan, J. Swang, the plaintiff in error, was
presented by the grand jury in the circuit court at Winchester,
in ten cases, for gaming. The game was cards, and Smock,
the only witness before the grand jury, was a participant in
the crime. At the same term of the court at which the pre-
sentments were made, the plaintiff in error was placed under
arrest, and held in the custody of the sheriff. Pending the
term, under an arrangement with the district attorney, eight
of the causes were dismissed, on the prisoner's assuming and
securing the costs, and in the other two he pleaded guilty and
submitted himself to the grace and mercy of the court; where
upon the court assessed a fine upon him of fifteen dollars is
the one case and ten in the other, with the costs of both sub-
missions, which was regularly entered on record. Two days
thereafter, and during the same term, Swang appeared, and in
proper person moved the court to set aside his submission and
the judgment for the fine and costs. The court overruled the
motion, from which the plaintiff appealed in error to this court
The first question presented in the record is, whether or not
the plaintiff in error had the right to waive his submission
and plead not guilty. We think he had. In an old case re-
ported in 1 Tenn. 437, this question is distinctly decided; and
that part of the opinion of the court has not, so far as we have
been able to see, been overruled by any subsequent decision.
The right seems to be founded in sound reasoning, but it can
only be exercised in such cases as are affected with fraud,
putting in fear, or gross misrepresentation. By the constitu-
tion of the state, the accused in all cases has a right to ^^ a
speedy public trial by an impartial jury of the county or dis-
trict in which the crime shall have been committed," and this
right cannot be defeated by any deceit or device whatever.
The courts would be slow to disregard the solemn admissions
of the guilt of the accused made in open court by plea or
otherwise; but when it appears they were made under a total
misapprehension of the prisoner's rights through official mis-
representation, fear, or fraud, it is the duty of the courts to
allow the plea of guilty and the submission to be withdrawn,
and to grant to the prisoner a fair trial by an impartial jury.
In this case, the application was supported by the prisoner's
own affidavit and the affidavits of seven other persons, includ-
Dec. 1865.] Swang v. State. 695
ing the joint statement of the grand jurors. These sworn state-
ments disclose a statement of facts which, we apprehend, is
unprecedented in the judicial history of the state; and if thej
are to be believed (and they are corroborated in many essen-
tial particulars by the affidavit of the district attorney), they
amount in the prosecuting attorney to little less than common
barratry and official oppression. We do not deem it necessary
to comment further upon them, as many of the facts stated
are wholly erroneous and inapplicable to this case; but enough
appears to satisfy the court that the plea of guilty and the sub-
mission were made under an unwarrantable exercise of the
influence of the district attorney.
The accused was a stranger and a non-resident of the state,
in the custody of the sheriff, and away from those who would
be likely to become bound for his appearance. Under such em-
barrassing circumstances, he was, as it appears, among other
things highly improper, told by the attorney-general that if
he did not submit he would have to go to jail, and that he
could certainly prove his guilt. The plea of guilty was en-
tered, as the affidavit shows, while the prisoner was protest-
ing against his guilt, but as the best under the circumstances
he could do. Under such a state of fEtcts, we think the cir-
cuit judge had not only the power during the term to set aside
the judgment and allow the prisoner to withdraw his plea and
submission, and to plead over, but that it was error not to
do so.
In ordinary cases, and when the circuit judge felt he had the
power to set aside a judgment after submission, we would not
feel disposed to disturb his action; but in this case, it appears,
he doubted his authority to allow the motion and set aside the
judgment after a plea of guilty; and for that reason this court
feels warranted, under the facts of this case, to reverse the
judgment of the circuit judge, and to award a trial of the
cause under proper pleadings before a jury.
EnxOT or Rbbobtino to Fraud ih Kwjwiao Abbvt: HawiBiiu t. C7an»-
monweaUh, 61 Am. Deo. 164, note; e£GMt of fnad in obtuning pardon: /toft
▼. McIfUire, 69 Id. 676.
DuBisa, What Oommnmss JMlmr, Bbod^ 76 Am. Dea 664^ and note
672:
596 Denny v. Whttb. [Tenni
Denny v. White.
12 Goodwill, 288.1
Head or Faiolt onlt is Entitled to the benefit of the exemptioa laws.
Pbopertt Exempted to Heads of Families cannot be Taken by attach-
ment or other jadicial process if the father absconds; if he dies, the pro-
visions of the law extend to the mother and children; if the mother diet,
such property is protected in the hands of the personal representatives,
for the nse of the children.
Head of Family Holds Exempt Pbopebtt in hzb Possession fob Use
and benefit of the family; and while he may sell or exchange snch prop-
erty for the benefit of the family, it cannot be levied on and sold on ex-
ecution by his consent.
Suit to quash the levy of an execution. The opinion states
the case.
MooreSj for the plaintiff in error.
De Witt^ for the defendant in error.
67 Court, Shackelford, J. This is a suit commenced by
a petition in the circuit court of Smith County by the plaintiff
in error, praying for writs of certiorari and supersedeas to quash
the levy of an execution from the judgment of a justice of
Smith. The plaintiff in error alleges he was the head of a
family, and the propei-ty seized, one bed and bureau, was
exempt by law from levy and sale. The suits were awarded
by the circuit judge. It appears from the proof, the plaintiff
in error was the head of a family, himself and wife; his fur-
nilure consisting only of two beds and one bureau. They
were in very indigent circumstances. The oflScer who made
the levy took from them the property, and moved it off the
premises. The levy was made on Saturday, and removed on
the day following. The proof at the time the levy was made
is, the plaintiff in error claimed the property as exempt from
execution. On the next day, at the time of the removal, there
is some proof the plaintiff assented to the act of removal, but
it was after the levy and seizure. The cause was submitted
to a jury, under the charge of the court, who instructed the
jury, if the defendant in the execution had two in family, he
was a householder and head of a family, then the property
was not the subject of levy and sale by execution; but the de-
fendant might waive the right, and permit a sale of the prop-
erty to satisfy the execution, which would protect the oflScer;
but the defendant could at any time withdraw his assent be-
fore sale, on notice to the officer, and he was then bound ta
Dec. 1865.] Denny v. White. 597
return the property. A judgmeDt was rendered against the
plaintiff in error, a new trial refused, and an appeal taken to
this court. The decision of this cause requires a construction
of the several acts for the benefit of poor persons, exempting
certain property from' execution. The object and purpose of
the legislature in passing the several acts was to secure to
each head of a family certain property necessary for their
comfort, support, and maintenance. In construing these acts,
we must take them as different parts of one act. By the act
of 1820 certain articles were exempted, and they were pro-
tected in the possession of the head of the family. The act
creating the exemption expressly forbade the seizure and sale
of the property, and made it a misdemeanor for an officer to
violate the act. The acts of 1827, 1833, and 1842, and the
provisions of section 2107 and the other sections of the code,
exclude these additional articles of property exempt from
execution; to these articles the rights and interests of the
parties attach as they were fixed by the act of 1820. It is
manifest the object and purpose of the legislature was to ex-
tend the benefit to the family. No one, unless he was the
head of a family, was entitled to the benefit of the law. If
the father died, the provisions of the law extended to the
mother and children. If the mother died, the property was
protected in the hands of the personal representatives for the
use of the children. If the father absconded, it would not be
taken by attachment or other judicial process. It is property
around which every protection has been thrown to secure the
family in the use and enjoyment, and in which they have a
common interest. It generally consists of their humble earn-
ings, and of such articles as are necessary for the support and
maintenance of the family. The head of the family being
protected in holding the property in possession, he holds it aa
a fund for the support and maintenance of those dependent
on him, and they have an interest in the property thus secured
from the debts of the head of the family: See Jones v. Wilr
Hams, 2 Swan, 105. This principle being admitted, it follows
he cannot waive his right, and permit a levy and sale of the
property by execution. The language of the act is imperative.
The property exempt shall not be liable to seizure and sale by
execution, and the head of the family cannot waive the right,
as those dependent on him are under the protection of the
law, and secured in the enjoyment of the property. If the
property is taken from them, their protector has the right to
698 Stewart v. Magnkbs. [Tenn.
recover the value, and the courts will punish the officer vio-
lating the law; but in the mean time, want and suSering
must follow, as the articles surrendered by the consent of him
who was protected in the use for their benefit were necessary
for their subsistence. They ought to be protected in the use
of the little com for bread, the horse for the plow, or the yoke
of oxen to draw them wood for fire, and the other articles
necessary for their comfort. Such, in our opinion, was the
intention of the legislature in passing the several acts under
consideration; and in giving them a broad and liberal con-
struction, we express and carry out the intention of the legis-
lature. We are of opinion the property exempt by execution,
in possession of the head of a family, is held by him for the
use and benefit of the family; that it cannot be levied upon
and sold by his consent. It is a privilege he cannot waive.
In holding the head of the family has not the right to waive
the privilege, and permit a sale by execution, we do not intend
to hold he has not the right to sell, barter, or exchange the
property protected for the benefit of the family or those inter-
ested.
The judgment of the circuit court will be reversed; the levy
of the execution upon the property quashed.
Who DsnoD to bs ''Hbad or Faiolt" within meaning of
Iftwi: Bad^man t. Chmiiford, 30 Am. Deo. 163.
St£wabt V. Magnbss
12 COLDWBLL, 810.1
Shebot IB Inoomfbtent to Aor when he is a party to the reoord or in*
terested in the snit; and in snch caae, the execation of prooeas by him or
hia deputy is nnbiwfal and Toid.
Appeal from dismissal of scire facias. The facts are stated
in the opinion.
CoTnes, for the plaintiffs in error.
McLain, for the defendants in error.
By Court, Hawkins, J. During the pendency of the suit of
J. Y. Stewart and wife v. L, J, Afagness in the circuit court of
De Kalb County, a subpoena was issued in the cause, directed
to the sheriff of said county, commanding him to summons
R. MagncBS as a witness in behalf of the plaintiffs in said
cause.
Dec. 1865.] Stewart v. Maoness. 599
The subpoena came to the hands of one Davis, a deputy
sheriff, by whom it was executed on Magness. Afterwards,
the cause came on to be tried, and R. Magness, being solemnly
called to come into court and give evidence in behalf of the
plaintiffs, came not, but made default, and thereupon a judg-
ment nisi was rendered against him for such default. A scire
facias was awarded, and he was summoned to appear at a
subsequent term of the court, and show cause, if any he could,
why said judgment should not be made final. To the scire
facias the defendant filed a plea, in which it avers, in sub-
stance, that at the time of the issuance and execution of said
subpoena, J. Y. Stewart, one of the plaintiffs in said suit, was
the sheriff of De Kalb County, to whom said process was di-
rected, and that Davis, by whom it was executed, was the
under-sheriff or deputy of said Stewart. To this plea the
plaintiffs demurred, alleging as causes for demurrer that said
plea was insufficient; that it was not in proper form, and was
not filed in time. His honor, the circuit judge, overruled the
demurrer, and gave to plaintiffs leave to reply, which they
declined to do; and thereupon the court dismissed the scire
facias, and gave judgment against the plaintiffs for costs;
and they have appealed to this court.
It is now insisted the plea is in abatement. Were this true,
it is certainly defective in form, according to the technical
rules of pleading once in force in this state, as applicable to
pleas of that character; but since the adoption of the code,
these rules have been relaxed, and the validity of the plea is
made to depend more upon the facts stated, and less upon the
manner of stating them, or the form of commencing or con-
cluding the plea. We are not, however, prepared to say that
under the very liberal system of pleading which prevails at
this time the plea in the case would be sustained were it a
plea in abatement; but that question is, in the view we have
taken of the case, wholly immaterial. The commencement,
conclusion, and matter of the plea are all in bar, and not in
abatement; it possesses none of the qualities whatever of a
plea in abatement, — it goes to the merits of the case; and the
subject-matter is, that the plaintiff cannot maintain any action
at any time in respect to the supposed cause of action, and is
therefore clearly in bar. The plea is therefore not subject to
the strict rules applicable to pleas in abatement.
And this brings us to what we conceive to be the principal
question in the case. Do the matters stated in the plea con*
600 Stewart v. Maqnkss. [Tenn.
Btitute a valid and sufBcient defense to the action? Has a
sherifF power to execute process issued in a suit to which he
is a party? In the case of Ryner v. Stacy ^ 8 Humph. 288, this
court held that upon principles of public policy nothing was
better settled than that a sheriff has no right to an execution
in which he is plaintiff; and upon the same principle it is un-
lawful for a deputy sheriff to execute process to which he is a
party. The deputy is appointed by the principal sheriff, and
is responsible to him, while the principal is liable for the acts
or default of the deputy. The deputy can rightfully exercise
no power which may not be exercised by his principal; hence
it follows that the act of the deputy in the performance of the
act which it would be unlawful for the principal to do is like-
wise unlawful. Sections 380 and 381 of the code provide that
when the sheriff is incompetent to act, the coroner shall per-
form the duties of sheriff; and when it appears that the sheriff
is a party to the suit, or from affidavit filed that he is inter-
ested, process may be directed to the coroner. Therefore we
conclude that if the sheriff is a party to the record, or is inter-
ested in the suit, he is incompetent to act, and in such case
the execution of process by him or his deputy is unlawful and
void. By applying these principles to the case under con-
sideration, it will be readily seen that the facts alleged in the
plea constitute a valid and complete defense to the action.
The forfeiture was taken, as appears from the scire Jadaa, at
the February term, 1859. At the February term, 1861, upon
application, it appearing to the court that the original scire
facias in the cause had been lost, an order was made by which
the same was supplied; and from the supplied paper it appears
the original scire facias was executed on the tenth day of
April, 1859; but it does not appear that the same had been
on the files in the clerk's office, or if so, when it was lost; or
that the defendant had ever had an opportunity to inspect or
plead to it until the day on which the last paper was supplied;
and on that day the defendant's plea was filed. We think
the delay is satisfactorily accounted for, or at least, that it
does not appear the defendant has been guilty of any laches
of which the plaintiffs can now take advantage.
The judgment of the circuit will be affirmed.
When SnEBirr is Partt to Action, Process must be Dibectbd to
Coboner: Bouxn ▼. Jones, 65 Am. Dec. 426; and the clerk may direct proccM
Dec. 1865.] Wood v. Stonk. 601
to the coroner without averring in the petition that the sheriff ia a party to
the action: OUphant v. DaUas, 65 Id. 146.
ExEounoir oi* Pbocess Deyoltes itfon Cobohxb in case of Bheriff'B in-
ability: KirhY. Murjpkif,G7 Am. Dec 640.
Wood v. Stone.
[2 COLOWSLL, 860.1
OcmrsACfT Voluktabilt Mads with OmoKR ik Skryici ov CoNnEDEBATs
States to supply his company with rifles held to be void, as against the
pnbUo policy of the government of the United States, and in violation of
its laws and constitation, as aiding and aimifltiiig the Bebellion, at the
time in active progress.
Action to recover the price of a rifle-gun. The opinion
states the case.
Robert Cantrell, for the plainti£f in error.
M. M. Briefly Sen.j for the defendant in error.
By Court, Millioan, J. This is an action commenced by
warrant, before a justice of the peace of Cannon County, to
recover the price of a rifle-gun, which, it is alleged in the war-
rant, was taken and converted to the use of the plaintiff in
error. There was judgment before the justice in favor of the
defendant in error, and an appeal to the circuit court of Can-
non County, when, on a trial before a jury, the justice's judg-
ment was affirmed, and an appeal in error prosecuted to this
court.
It appears from the record that one B. J. Hill, through the
agency of Governor Harris, obtained permission of the rebel
Secretary of War to raise and equip a regiment of infantry, to
serve in the army of the Confederate States for odc year; and
that at the time the rifle-gun in controversy was purchased,
the plaintiff in error was a captain commanding a rebel com-
pany in HilFs regiment, and that the gun was obtained for
the purpose of arming hi8 company. The contract appears to
have been made about the 5th of September, 1861, within this
state, p.nd during the time it was held and occupied by the
military forces of the Confederate States. It was voluntarily
made, and with full knowledge on the part of the defendant in
error of the purpose for which the gun was purchased, and the
service in which it was to be employed.
Under this state of facts, the circuit judge instructed the
jury, among other things, which appears not to be excepted
602 Wood v. Stone. [Tenn.
to, as follows: " If you should believe from the proof that the
plaintiff sold the defendant his rifled gun, knowing at the time
it was to be used in the confederate or rebel army, and you
should further believe from the proof that at the time of the
sale this country, where both parties were living, was in the
possession and under the control of the military authorities of
the so-called Confederate States, they having been recognized
a belligerent power by the government of the United States,
and holding military occupation of the country where the con-
tract was made, at the time it was made, then, under such a
state of facts, if they exist, the plaintiff would be entitled to
recover from the defendant whatever the proof may show the
gun was worth at the time of the contract, all other questions
being out of the way."
The facts of this case are remarkably strong. Open war, at
the date of this contract, was being waged by an unlawful
combination of the insurgent states to overthrow the govern-
ment and authority of the United States within their limits.
The state of Tennessee had declared its independence, and by
an ordinance of its legislature assumed to dissolve the federal
relations between the state and the United States of America.
War was actually levied, and flagrant, against the laws, con-
stitution, and government of the United States. The Presi-
dent had called upon "the several states of the Union"
(Tennessee included) for the militia, to the aggregate amount
of seventy-five thousand, to suppress the unlawful combina-
tion that was making war against the government, and to
cause the laws thereof to be duly executed. The insurgents
had been warned by his proclamation to disperse and retire
peaceably to their respective abodes, and within less than one
month before this transaction, the state of Tennessee, by ex-
ecutive proclamation, had been formally declared in insurrec-
tion, and all intercourse between her citizens and the citizens
of the loyal states prohibited. With these facts fully within
the knowledge of the defendant in error, he entered with his
eyes open into this contract; and now, after the war is over,
and the authority and laws of the government of the United
States restored to the people of Tennessee, he deliberately asks
the courts of the country to enforce his contract. Can it be
done? The war is over, and peace has again been restored,
and this court certainly has no desire to revive the unpleasant
memories of the past, but we are compelled to recognize the
law as it exists. Contracts, it is well settled, are illegal when
Dec. 1865.] Wood v. Stone. 603
founded on a coneideration contra honos mores, or against the
principles of sound policy, or founded in fraud, or in contra-
vention of the positive provisions of law: 2 Kent's Com. 598,
and note, with authorities there cited.
This principle has been repeatedly recognized in various de-
cisions of this court and of the supreme court of the United
States: See Yerger v. Rains^ 4 Humph. 259; Allen v. Dodd, 4
Id. 132 [40 Am, Dec. 632]; Pulse v. Statej 5 Id. 108.
In the case of Craig v. State of Missouri, 4 Pet. 11^, Chief
Justice Marshall, in delivering the opinion of the court, said:
" It has been long settled that a promise made in considera-
tion of an act which is forbidden by law is void. It will not
be questioned that an act forbidden by the constitution of the
United States, which is the supreme law, is against law."
This contract, although perhaps not malum in se, was made
against the settled public policy of the government of the
United States, and against the laws and constitution. It was
not made with a mere private individual, but with an officer
and agent of the Confederate States, and with a view of aid-
ing and assisting the Rebellion then in active progress. The
case of Bennett v. Chambers, 14 How. 88, is in point, and if
authority was required, decisive of this case. There the con-
tract was to assist a Texan officer, in the war with Mexico,
before the recognition of Texas by the United States, and the
court iield the contract illegal. Much more are we, therefore,
bound to hold the contract illegal, and to repel the plaintiff
below from the courts of the country, because it was against
the public policy, laws, and authority of the lawful govern-
ment, to which the plaintiff in error rightfully owed allegiance.
But the circuit judge seemed to think, and it is so insisted
here, that, inasmuch as the Confederate States had been
recognized as a belligerent power, that would legalize all their
transactions with third persons, and justify the courts of the
country in enforcing them. We do not think so. It is con-
ceded that the supreme court of the United States, in what
is known as the Prize Cases, held the late war with the Con-
federate States to be a " civil war," and the parties entitled to
all the rights of belligerents; and that the commanding mili-
tary officers of the armies of the United States, with the sanc-
tion of the President, properly conducted the war upon all the
usages, maxims, and laws of war which have been established
among enlightened and Christian nations to mitigate its hor*
rors; but whether a recognition of the Confederate States
804 Foster v. SmTH. [Tenn.
as a belligerent power, to make it efifectual, has not to be evi-
denced by the official action of the legislative and executive
departments of the government, is a question that we do not
feel called uppn to express any opinion. It is sufficient for
the determination of this case, in any aspect of the question
of belligerent rights, to say that we cannot assent to the ruling
of the circuit judge.
The rights of a power merely belligerent is to demand the
fair and reasonable application of the laws of war in the con-
duct of the war in which such power may be engaged. They
may in some instances affect neutrals, and other powers who
in their discretion saw proper to recognize such power as a
belligerent, and as such to hold intercourse with it; but they
cannot, in case of a revolt, be so extended as to embrace pri-
vate contracts with individual citizens whose rightful alle-
giance is due to the metropolitan government, and thereby
include that which would otherwise be illegal and void valid
and capable of being enforced in a court of justice. A con-
trary construction of the rights of a power merely belligerent
would be substantially to confer upon it all the powers belong-
ing to an organized, sovereign, and independent nation, which
we are not prepared to yield to the late Confederate States.
The judgment of the circuit judge will be reversed, and a
new trial awarded, when the law will be charged in oon*
formity to this opinion.
GoMTBAOTS Vom AS AOADrsT PuBUO PoiJCT: See 8mUh v. WUeooB, 82 Am.
Dec. 302; PanoM t. Traak, 66 Id. 502, and note 606; Pmoen t. Sfkimur, 8t
Id. 677.
Foster v. Smith.
r2 COLDWKLL, 474.]
PUNCIPAL IS BOUITD BT ACTS AK1> CONTRAOTS 07 AOBBT, done with hlg
consent, or by his authority, or ratified and adopted by him; bnt he is
entitled, as the ultimate party in interest^ to all the advantages and
benefits of such acts and contracts, as against third parties with whom
his agent deals. And it is immaterial that the agent is a factor under a
del crtde coomiission, or that the xirincipal was unknown at the time, or
that the third person dealt with toe agent, supposing him to be the sole
principal.
Pbincipal MAT SuB UPON CONTRACT Made BT AoBNT, without giving no-
tice of his interest, although the other party to the contract supposed
the agent to be acting for himself, subject, howerer, to such other party's
rights against the agent.
Dec. 1865.] Poster v. Smith. 605
Pabtt CoMntAOTiNo UKDBR AflsiTKBD Charaotsb ov Aosnt, eiUier oon-
cealing or falsely representing the name of his principal, when in fact he
is the real principal, cannot sne on snch contract, as principal, without
notice to the other party of his real character.
Agxht icAT BB Juarmxi), ukdkr Extraordikabt CmcncBTAHCXs, in as<
snming extraordinary powers, and his acts, fairly done, will bind his
principal.
BVFICAC7 OF Intxrbooatobzxs Filbd is ExHAUflTiD after a deposition once
taken thereon, and the party has no right to retake the deposition with-
out refiling the original or additional interrogatories^ and giying the op-
posite party notice.
Action against common carriers for failure to deliver accord*
ing to promise. The opinion states the facts.
MooreSy for the plaintiffs in error.
Joseph C. Ouildj for the defendants in error.
By Court, Hawkins, J. At the March term, 1861, of the
circuit court for Smith County, this cause was submitted to a
jury, who rendered a verdict in favor of the defendants, upon
which a judgment was pronounced. The plaintiffs moved for
a new trial, which was refused, and they have appealed to this
court.
The declaration contains three counts: the first charges the
defendants, as common carriers, for failing to deliver, accord-
ing to promise, a lot of wheat; the second charges that, in
consequence of the carelessness, negligence, and fraudulent
conduct of the defendants as common carriers, the wheat was
lost; the third and last count charges the defendants with a
conversion of the wheat, and sacks containing it.
It appears from the record that one H. C. Seymore was the
agent of the plaintiffs during the year 1857, for the purchas-
ing of wheat and other grains for the mill and distillery of the
plaintiffs in Nashville, and as such had authority to appoint
and employ subagents for that purpose; and in the exercise
of the power vested in him, did appoint one Corden as such
subagent, and authorized him to purchase, pay for, and ship
to Nashville, for the use of plaintiffs, wheat and other grains.
Corden proceeded, under authority and in pursuance of in-
structions from Seymore, to purchase a lot of wheat, and con-
tracted with defendants for the skipment and transportation
of the same from Trousdale's Ferry, and other points on the
Caney Pork River, to Sanders's Ferry, on the Cumberland
River. The boat and most of the cargo sunk in three feet of
water, at the mouth of Caney Fork, about three fourths of a
606 FoBTEB V, Smith. [Tenn.
mile above Sanders's Ferry. The defendants took the wheat
out of the water, and sold or otherwise disposed of it to their
own use.
Upon the trial of the cause, the plaintiffs insisted the de-
fendants had failed to deliver the wheat at Sanders's Ferry,
according to the terms of the contract, and that the sinking
of the boat and cargo was owing to the carelessness, negli-
gence, and fraudulent conduct of the defendants. The de-
fendants insisted the terms of the original contract as to the
place of the delivery of the wheat had been changed, and
that in pursuance of the terms of a subsequent contract, it
was delivered at the mouth of Caney Fork, and had, in fact,
been received by Corden; that the sinking of the boat was
owing to the unskillful manner of unloading the boat after
Corden had received the wheat; and that, after the sink-
ing of the boat and cargo, they purchased the wheat from
Corden, in consideration of a small sum due them for trans-
portation; and upon all these points both parties offered proof.
But it is believed all the facts necessary to raise the questions
presented for our consideration have been recited.
It does not appear that Corden at any time communicated
to the defendants the fact of his agency, or that defendants
had in any manner acquired any knowledge of the fact that
he was only an agent, and not the principal and real owner of
the wheat*
The circuit judge charged the jury: "If Corden dealt
with defendants for himself, or under circumstances which
would satisfy a reasonable man that he was dealing for him-
self, and not for plaintiffs, then, before plaintiffs could main-
tain any action against defendants, the defendants must have
notice of plaintiff's interest in the transaction."
The judge inrther instructed the jury that "this principle
applies to all the counts in the declaration." This, it is in-
sisted, is erroneous; and we do not believe the rule as laid
down by his honor the circuit judge can be sustained either
upon principle or by authority. In cases arising upon con-
tracts, the principal is bound by the acts and contracts of his
agent, done with his consent or by his authority, or ratified
and adopted by him; and in such cases there arises a recip-
rocal obligation to the principal on the part of the third per-
son with whom such contracts are made, and for whose
benefit and with whose consent such acts are done; and in
all such cases the general doctrine is, that the principal, as
Dec. 1865.] Fosteb v. Smith, 607
the ultimate party in IntereBt, is entitled as against such third
person to ail the advantages and benefits of such acts and
contracts of his agents. And it will make no difference in
such cases that the agent is a factor, acting under a del crede
commission; nor that the principal at the time of entering
into the contract is unknown or unsuspected; nor that the
third person has dealt with the agent supposing him to be
the sole principal. The only effect of the last consideration is,
that the principal will not be permitted, while insisting upon
the contract, to intercept the right of such third person in re-
gard to the agent, but he must take the contract subject to all
the rights of such third person, in the same way as if the agent
was the sole principal; and subject to these rights, the prin-
cipal may generally sue upon such contract in the same
manner as if he had personally made it. Neither can it make
any difference that the contract be of that character that the
agent may maintain a suit upon it in his own name.
In cases where a third person deals with an agent, suppos-
ing him to be the principal, and without any knowledge thai
the property involved in the transaction belongs to another,
such third person may acquire rights which will be protected;
and to this end, it can make no difference whether the action
be in the name of the principal or agent. The right to sue
upon the contract entered into by the agent within the scope
of his power, and to the enjoyment of all its benefits and ad-
vantages by operation of law, fiows to the principal, though he
may be unknown; and the fact that the third person dealing
with the agent, believing him to be the principal, cannot de-
feat the rights of the principal. Neither will the fact that the
name of the principal was concealed, while such third person
was induced to contract with the agent, believing him to be
the principal, be permitted to defeat the rights of such third
person under or growing out of such contract, even though the
action be brought in the name of the principal; and in all
such cases, it may be said, the principal *' steps into the shoes
of the agent."
When a party has entered into a contract under the assumed
character of an agent, either concealing or falsely representing
the name of the principal, when in fact he was himself the
principal, and party for whose benefit he had, under the
assumed character of agent, made the contract, it has been
holden he cannot maintain an action upon such contract as
principal without having first given to the other party notice
608 Poster v. Smith. [Tenn.
of his real character, upon the ground that the plaintiff had
misled the defendant by assuming a situation which did not
belong to him, and therefore was bound to undeceive the de-
fendant before bringing his action.
But we know of no other class of cases in which the princi-
pal may not maintain his action upon the contract^ entered
into by his agent in his own naine, as well without as with
having given notice to the defendant of his interest.
It will be observed that the principles to which we have re-
ferred are applicable to actions purely ex contractu.
The third count in the declaration alleges the tortious con«
version of the property of the plaintiffs by the defendants.
The proof is clear that the defendants had sold and otherwise
disposed of the wheat to their own use; consequently, the rule
that, in some cases, notice or demand is necessary to make
out a conversion does not apply to this case. And we are
wholly at a loss to conceive of any principle upon which a de-
fendant can be permitted to insist, that, although I may have
been guilty of the illegal and wrongful seizure of the property
of A, but at the time I did so I had good reason to believe it
belonged to A, therefore A, the rightful owner, cannot main-
tain an action against me to recover the value of his property
until he first shall have given me notice of his interest in the
property. And the fact that the defendant may have found
the property in the hands of the agent, and may, prior to tne
conversion, have had some dealings with him concerning it,
without the knowledge of his agency, or that the property
belonged to the plaintiff, cannot, as we believe, impose upon
the true owner the necessity of giving notice to the defendant
of his interest in the property before bringing his suit.
To hold the law to be as charged would, as we believe, be
productive of much mischief, and defeat the ends of justice.
The circuit judge charged the jury further: "That if Corden
was the agent of plaintiffs to purchase wheat and ship it to
them, and it was sunk in the river, in the opinion of the court,
such agency would confer the power to take care of it, or sell
and dispose of it, so as, in his opinion, best to promote the in-
terest of his principals; and if he did so dispose of it, it was
bindmg upon the principals."
This, it is also insisted, is erroneous, and we confess the
question is not entirely free from difficulty. Almost all the
rules bearing upon this question are subject to exceptions.
The difficulty is not in determining what are the general rules,
Dec. 1865.] Poster r. Smith. 609
but whether this case falls within the exceptions. Corden was
a special agent, having express power to buy wheat and other
grain, pay for it, and ship it to Nashville, for the use of the
plaintiff, but to do nothing further; and unless the contrary
appears to have been the intention of the parties, his agency
will be construed to include all the necessary and usual means
of executing it with effect.
It is not insisted that the power to sell is incidental to the
power to buy and ship, or that the power to sell is necessary
to enable the agent to execute with effect the express powers
conferred; nor is it insisted that, under ordinary circumstances,
the agent, Corden, had any power to sell the wheat; but it is
insisted that an emergency had arisen, the wheat was in the
water, the danger of its total destruction and loss was immi-
nent, and that Corden derived a power to sell from an impend-
ing necessity.
It is true that under extraordinary circumstances an agent
may be justified in assuming extraordinary powers; and his
acts, fairly done, under such circumstances, will be binding
upon his principal; but it does not follow as a corollary that,
under extraordinary circumstances, an agent may assume any
or all extraordinary powers, and by his acts bind his princi-
pals; hence it is important to observe the character of powers
which may, under such circumstances, be assumed, and the
incidental relationship which they bear to the powers actually
conferred.
Thus it is said a factor will be justified in deviating from
his orders, directing him to sell at a stipulated price, if the
goods are of a perishable nature, and the sale is indispensable
to prevent a total or further loss. Here the extraordinary
power assumed by the agent is not to sell, — that had been ex-
j)ressly conferred, — but to deviate from his orders in accept-
ing a price differing from the one stipulated by his principals.
*'If goods are perishable and perishing," or *'if they are acci-
dentally injured, and must be sold to prevent further loss," the
agent may deviate from his instructions as to the time or price
at which they are to be sold. Here, however, another diffi-
culty springs up, — that of determining whether these latter
cases apply to questions as between principal and agent in
determining the duties and obligations of the agent to the prin-
cipal, or as between the principal and third persons in deter-
mining the binding validity of the acts of the agents.
It is said the master of a ship, in cases of necessity, ao-
Ak. Dae. Vol. LXXXVm-»
610 Poster v. Smith. [Tenn.
quires a superior authority over the ship and cargo which do
not belong to his general agency, and circumstauces may
arise under the necessities of which he would be authorized to
sell both ship and cargo; but it seems to us the better opinion
is, this is an incidental power pertaining to his office as mas-
ter of the ship, conferred upon him by usage, which may be
exercised in cabes of necessity; and in no other instances, as
we belieye, may an agent assume a power as distinct from and
independent of the power conferred as the power to sell is
from the power to buy and ship, and by his acts in the exer-
cise of such assumed power bind his principal.
We think Corden had the power, under the circumstances,
to take care of the wheat, and to employ hands or such other
means as may have been necessary to have it taken out of the
water and preserved, for the purpose of preventing a total io-
jury or total loss, and to this ^tent his principal would have
been bound by his acts. But we are of opinion he did not
have the power to sell the wheat because of anything appar-
ent in the record.
It may be true that an agent may acquire such an interest
in the property as will authorize him to sell it, but no such
interest is shown to have existed in this instance. Hence
the principle does not apply. Neither was the charge given
with reference to any such 8upi)0sed interest, but was given
with reference alone to the extraordinary powers which it was
supposed the agent might rightfully exercise under the sup-
posed emergency.
But another question is presented in this record for our
consideration. The defendant caused to be taken and placed
on file the deposition of one M. L. Grasty, to the reading of
which the plaintiffs excepted. Because the deposition of the
same witness had been previously taken by the defendants,
which had been excepted to and excluded, and that this depo-
sition had been taken without the filing of any other addi-
tional interrogatories, or giving any notice of such having been
filed subsequently to the rejection of the original deposition,
and because no notice had been given to the plaintiffs of the
time and place of taking the same.
The record is singularly defective, and its inspection might
serve as a useful commentary upon the prevailing careless-
ness which has everywhere crept into our practice, or the im-
perfect, confused, and bungling manner in which records aie
Dec. IbGO.J FoBTEB V. Smith. 611
frequently transcribed. The caption and the deposition on
its face shows it was taken upon interrogatories, — but from
whence they came, what they are, by whom, when, or where
they were filed, does not appear. They do not accompany the
deposition, nor are they transcribed into the record, nor does
it appear, except from the exception itself, that any inter-
rogatories have ever been filed in the cause, or that any notice
of such has ever been given. The caption recites that it was
taken in Pope County, in the state of Dlinois, on the four-
teenth day of June, 1859, and the certificate of the justice of
the peace, appended to the deposition, is dated on the twenty-
fourth day of October, 1859, — a period of more than four
months after it purports to have been taken; and although
the reading of the deposition was excepted to because it had
not been filed in time, the record fails to show when it was
filed or when the exceptions were filed; but it does show that
on the 25th of March, 1861, the clerk sustained the excep*
tions first above mentioned, from whose action the defendants
ajypealed to the court, who overruled the exceptions, and that
the deposition was read.
If from what has been stated it can be said to appear the
deposition has in fact been taken upon interrogatories filed
in the cause, and under the circumstances as stated in the ex-
ceptions, we think that the filing of interrogatories and giving
notice thereof under section 8855 of the code is in lieu of the
notice of the time and place of taking the deposition required
by other sections of the code; and when the deposition of the
witness has been once taken upon such interrogatories, all the
efficacy of such interrogatories and notice in giving the party
the right to take the deposition is exhausted; and the party
has no right to retake the deposition for any cause without
refiling the original or filing additional interrogatories, and
giving the opposite party the notice as required by the section
of the code before referred to, and therefore the exception
should have been sustained. And if the deposition was not
taken upon interrogatories, and in the manner as stated in the
exception, then plaintififs' exceptions for want of notice were
well taken, and should have been sustained. We think the
court erred in overruling the exceptions, and in permitting the
depositions to be read.
The judgment of the circuit court will be reversed, and the
cause remanded for a new triaL
612 Poster v. Smith. [Term.
RATiFiOATioir BT PKiNCiPAL OF AcT OF AovsT, and evidsDoe thereof: See
Beeae v. Medlock, 84 Am. Dec 611; Mofor etc. v. BeynoUU, 83 Id. 536^ end
note 544: Ward v. Williams, 79 Id. 385, and note 387.
Implded AuTHORmr of Agent arising from general employment: See Tier
V. Lampaon, 82 Am. Deo. 634.
Whxrb AoiNT Ck)KTRACra IN Kamb of Pbinoepal, latter moat sue: Sharp
V. Janes, 81 Am. Deo. 369, and note 862.
Rights of Pbivgifal uvdui Aoxbt'b OonTBAOfB: See Oudtmg t. JNm^ 71
Am. Deo. 579; Ocwda Falls Hfg. Co. v. Sogers, 66 Id. 60^ and note; WiMtp
V. Fov, 78 Id. 236, and note 23&
OASES
SUPREME COURT
VERMONT.
Hill v. Town op New Haybv.
\V! VBixoirr, fiOL]
FLAzmm n hot Bouztd to Establish at Ootbet, as Bmrnior Awibka-
nvB Pbofobition, that Hx was not GuiLTr ot KioiJOXHaB in aa
actum agaixiBt a town for mjnries caused by the insiiffioiency of a high-
way.
Quxanoiff ov Contbibutobt Nboijoxnob is Oni ot Fact for the jury.
DXCLABATION IN ACTION tTNDXB STATUTE FOR CAUSING DbATH OV PXBflON
IS SumciENT AJTXB Yebdiot, whero it alleges the time of death, which
was within two yearn before the commencement of the action, withont
■peoilioally alleging that it was within two years before the action wa«
commenced.
PowKB TO Gbant New Trials on Gboitnd that Verdict is AOAnm
Weight of Evidenoe should be Confined, it seems, to the court be-
fore which the case is tried.
Case by Calvin Hill, administrator of George H. Eager,
to recover damages for the death of Eager, alleged to have
been caused by the insufficiency of a certain highway in the
town of New Haven. Eager, while driving a pair of horses
attached to a wagon, on a highway in the town of New Haven,
went oflF the highway into the New Haven River and was
drowned. The highway at the place of the accident was nar-
row, and near the margin of the river, and there were no bar-
riers. The stream was swollen, and the road was covered with
water about up to the horses' bodies in the deepest place, and
to their knees at the place where the accident occurred. There
was nothing to mark the road, and suitable means to keep it
free from water had not been taken. One end of some boards
of a fence had been detached, so that the boards swung across
618
614 Hill t?. Town of New Haven. [Vermont,
the road upon the water, reaching nearly to the bank of the
river, and were swayed by the water in such a manner that
the horses were probably frightened. Eager, it seems, lived
in the vicinity of the town, and had passed over the road
earlier on the same day. He was informed before passing
over it a second time that there was probably water in it at
the place where the accident occurred, and that it would be
dangerous to travel the road. He was usually a skillful
driver, but the defendant claimed that he had been drinking
to such an extent as to render him incompetent. A mare
which he was driving was high-spirited and difficult to man-
age. The defendant requested the court to charge the jury
that upon the uncontradicted testimony in the case respecting
the circumstances attending the accident the plaintiff could
not recover; that there was no evidence tending to show that
the plaintiff's intestate was at the time of the accident in the
exercise of that degree of care and prudence which was requi-
site to entitle the plaintiff to recover; and that if the mare of
the plaintiff's intestate was fractious and difficult to manage,
the attempt to pass through the water at the time in question
was such an act of imprudence and negligence as would pre-
clude a recovery by the plaintiff; but the court refused so to
instruct the jury. There was a verdict for the plaintiff, under
instructions given. The defendant moved in arrest of judg-
ment because of the insufficiency of the plaintiff's declara-
tion, which alleged the time when the injury was received,
which was within two years before the commencement of the
action, but did not specifically allege that it was within two
years; but the court overruled the motion. The defendant
alleged exceptions.
/. W. Stewart and E. J. Phelps^ for the plaintiff.
Oeorge F, Edmunds and E, R. Hard^ for the d^sfendant.
By Court, Poland, C. J. All the requests made by the de-
fendant's counsel called upon the court to decide as matter of
law that the plaintiff was not entitled to recover against the
town, because his own testimony proved that the negligence
or carelessness of his intestate contributed at least to produce
the injury by which he lost his life; and it is claimed that the
refusal of the court to comply with these requests, and thus
take the case away from the consideration of the jury, is a
sufficient allegation of error against the judgment below.
In the first place, it is said that the plaintiff at least gave
Jan. 1865.] Hill v. Town op New Haven. 015
no affirmatiye proof that Eager's conduct and management on
the occasion was careful and prudent, or that he was not guilty
of negligence or imprudence; and it is claimed that such af-
firmative proof was necessary in order to make a prima fads
case for the plaintiff.
We do not consider this proposition strictly correct, that in
this class of cases, for injuries caused by insufficient high-
ways, the plaintiff is bound to establish as a distinct affirma-
tive point in the outset that he was not guilty of negligence
or want of care in his own conduct or management in order
to show an apparent right of recovery.
It is abundantly settled in such cases that if the negligence
or carelessness of the person injured contributed in any ma-
terial degree to the production of the injury he complains of,
he cannot recover. That if the town is guilty of negligence in
allowing the highway to be defective, and a party sustains an
injury partly by reason of the defective highway, and partly
by reason of his own negligence and omis:ion of duty, he can-
not recover.
This principle is not at all peculiar to this class of cases
against towns; it applies equally to cases of collision between
two travelers on a highway, or between vessels on the water;
indeed, it is nearly, if not entirely, universal in all cases where
one party claims to have suffered a damage by the careless-
ness or negligence of another.
But this is a question as to the burden of proof merely. la
the plaintiff bound to establish in the outset, as a distinct af-
firmative proposition, that he was guilty of no negligence on
the occasion? We think he is not. The defect in the high-
way being conceded or proved, the plaintiff is bound to give
sufficient evidence to establish prima facie that he sustained
an injury by reason of such defect. If the plaintiff's own evi-
dence shows that his conduct on the occasion was careless or
negligent, and that such carelessness or negligence aided or
contributed to the injury he received, he establishes a defense
to his action by his own evidence, as much as if the same fact
were proved by the defendant. But if the plaintiff's proof dis-
closes nothing but that his conduct at the time was proper and
prudent, he is not bound to go further until this has been im-
pugned by some evidence on the other side. The plaintiff in
such case is bound to make out affirmatively that his damage
was caused by the defect in the highway in order to recover.
Evidence which proves affirmatively that the injury wa0
616 Hill v Town op New Haven. [Vermont,
caused by the defect in the highway must necessarily, to a
certain extent, show negatively that it was not caused by any-
thing else.
To this extent, and this only, can it be said that the burden
of proof is on the plaintifif in such a case to show in the outset
of his case that his own negligence did not cause or contribute to
his injury.
The true rule on this subject was laid down by Phelps, J.,
in the early case of Lester v. Tovm of Pittsfordy 7 Vt. 158,
where he says: "It was not incumbent upon the plaintiff to
negative the charge of negligence or imprudence on his part,
such proof being properly matter of defense."
Nor do we understand that what is said by Bedfield, C. J.,
in the case of Barber v. Town of Essex, 27 Vt. 62, varies sub-
stantially from what we now hold; and in that case it is to be
noticed that a specific request was made upon the court to
charge that the burden was upon the plaintiff to show that he
was exercising due care at the time the accident occurred,
which was not complied with, but still the judgment was af-
firmed.
The principle contended for, that a plaintiff should be com-
pelled in advance to furnish evidence of the propriety of his
own course of conduct, before any offer or attempt has been
made to impeach it, seems quite contrary to the general rule
of legal presumption which is always applied in other cases
to human conduct, — that it will be presumed rightful and
proper until the contrary is made to appear.
We are aware that in some modern cases of actions against
railroad companies for injuries sustained by collision with the
engines and cars running upon their own track it has been
decided that the plaintiff must himself show affirmatively
that he was himself guilty of no negligence whereby the col-
lision was produced; such are the cases of Gahagany, Boston
& L, R. R, Co., 1 Allen, 187 [79 Am. Dec. 724], and Telfer v.
Northern R. R, Co., 30 N. J. L. 188.
It is manifest that there may be reasons for appljring a
different rule to this class of cases, from the fact that the cars
and engines of the road run upon a fixed and permanent track
that cannot be deviated from, and from the peculiarly danger-
ous and uncontrollable power by which they are operated, so
that a person who has placed himself within their range and
power might properly be called upon to explain by his evi-
dence how he came there before receiving damages for his
Jan. 1865.] Hill v. Town of New Havsn. 617
injury. Whether in such cases a rule of evidence shall be
adopted varying from that in general use between ordinary
parties we have no occasion to decide; it is enough for this
case to say that we see no ground for its adoption in cases like
the present) and the long and uniform course of trials of such
actions in this state has shown no necessity for it.
But if the plaintiff was bound to show affirmatively that
the conduct of his intestate on the occasion was that of a care-
ful and prudent man, we do not well see how the court could
properly be called upon to decide whether he had proved it;
and this is substantially the same question presented by one
of the defendant's requests, which was, in substance, that the
court should decide that the plaintiff's evidence proved negli-
gence and carelessness on the part of his intestate.
The court below were clearly right in refusing to treat the
question as one of law for them to decide, when it had so re-
peatedly and uniformly been decided that in these cases
whether the plaintiff was so in fault that he had contributed
to his own injury and could not recover was a question of fact
to be submitted to and decided by the jury.
Whether it was an act of common prudence for the plain-
tiff's intestate to attempt to drive over this road at all, and
whether, in making the attempt, he managed in a prudent
manner, or in the best manner, depended upon a great variety
of facts and circumstances. It is not claimed that the law
has established any rule of conduct in such cases, except the
general one that the party shall conduct like a prudent and
reasonable man. Now, the question of prudent and reason-
able conduct, in a case depending upon a variety of consid-
erations, facts, and circumstances, is one peculiarly for the
consideration of a jury, depending upon experience, judgment,
and discretion for its decision. It is much like the question
whether a highway is sufficient or not; if the evidence as to
its actual condition be entirely undisputed, the court will not
undertake to decide, as matter of law, whether it is sufficient
or not, because it is wholly a question of judgment and experi-
ence, and is dependent on many considerations, — as to the
amount and kind of travel to go over it, the natural safety or
danger of the place, etc. Many attempts have been made to
turn the question into one of law for the court to decide, but
they have been uniformly unsuccessful: See Sessions v. Town
of Newport J 23 Vt. 9; Cassedy v. Town of Stockbridge, 21 Id. 391.
In Sessions v. Town of Newport, supra, the court say: "In
618 Hill v. Town of New Haven. [Vermonti
a]l questions depending upon a general inference from a mul-
tiplicity of particular facts, the inference is always one of fact,
unless the law has fixed some established rule. But in all cases
of doubt of this character, and where the law has fixed no rule,
the inference is one to be made by the jury, — such are ques-
tions of due diligence, skill, reasonable time, probable cause,
intention, etc."
This very point, and in a case of the same character as this,
is very clearly elucidated by Ellsworth, J., in Williams v. Town
of Clinton, 28 Conn. 266.
The only case in this state, to our knowledge, where the
court have taken it upon them to decide that a particular
course of conduct was or was not according to the require-
ments of common prudence is the case of Briggs v. Taylor, 28
Vt. 180. In that case, the court decided that it was not exer-
cising proper care for an attaching ofBcer to leave carriages
and wagons standing in an open field through the winter, and
that it was error in the court to leave it to the jury to say
whether it was reasonable and prudent. The court held that
this was a case where, by the common and universal experi-
ence of all men, such property must be exposed to and injured
by the storms of winter, and by the common and inevitable
course of nature such must be the result, and could not be
otherwise, and that no reasonable man could expect or believe
otherwise.
In a simple case involving no combination of facts, and
where by the fixed course of nature, like the law of the sea-
sons, there could be but one result and one opinion, we see no
reason to question the propriety of this decision, but it affords
no ground for the defendant to stand upon in the present case.
The defendant's third request was properly refused for the
same reason. It was an attempt to turn the case from one of
fact for the jury into one of law for the court, by adding an-
other fact, when all were questions of fact, and not of law.
If the case was one proper to be submitted to the jury at all,
no question is made but that the instructions given were
proper, and all the case required.
The motion in arrest was properly overruled.
The statute giving an action in cases like the present to
the representative of the person whose death has been caused
by the wrongful act, neglect, or default of another provides
that such action shall be commenced within two years after
the decease of such person.
Jan. 1865.] Hill t;. Town op New Haven. 619
The declaration in this case states the time when the injury
was received and the death of the plaintiff's intestate occurred,
and this time is within two years before the commencement of
the action, but it is not specifically alleged that it was within
two years.
The argument of the defendant is, that the plaintiff in his
proof would not be bound by the day alleged in the declara-
tion, and that he might prove it to have been more than two
years before the commencement of the suit, and thus entitle
himself to recover contrary to the provisions of the statute.
If this provision of the statute is to be regarded the same as
the ordinary statute of limitations, which must be specially
pleaded in order to entitle a party to avail himself of it, there
would be considerable force in the objection. But we do not
regard it as having precisely that character, but as an absolute
bar, not removable by any of the ordinary exceptions or an-
swers to the statute of limitations. So if upon the declara-
tion it appeared that the death happened more than two years
before the commencement of the action, the declaration would
be bad upon demurrer, and t!he plaintiff could not answer that
he was not bound by the day, and might on trial prove it to
be within two years, nor would the defendant in such case be
compelled to plead the statute. And so if it be alleged within
two years, and on trial is proved to be more than two years be-
fore the commencement of the action, the defendant would be
entitled to a verdict for that reason.
Whether this declaration would have been sufficient on de-
murrer, we are not called upon to decide; but after verdict we
have no hesitation in upholding it, both upon the ground of
the allegation of time being sufficient, and also that it was a
necessary fact to be proved on the trial in order to enable the
plaintiff to recover; and after verdict it would be presumed to
have been proved if the time had not been alleged at all.
It only remains to consider the question presented under
the petition for a new trial. This is based upon the alleged
ground that the verdict was contrary to and unsupported by
the evidence. It was decided by this court at the last general
term, in the case of Northfield Bank v. Brown [unreportedjj
that under our present statute this court have the power to
grant new trials for the cause alleged in this petition; but it
was said in that case: "The court will not set aside a verdict
as being against the weight of evidence except when it is
clear that the verdict is wrong, and not warranted by any fail
620 Hill v. Town of New Haven. [Vermont^
construction of the evidence, and when there is no room for
difference of opinion in fair judgment as to which way the
verdict should be. If there is any conflict of evidence, and
any reasonable ground for doubt on the evidence which way
the fact is, the verdict is conclusive." These observations, as
applied to the exercise of the power of this court to grant new
trials for such cause, we think are none too strong; indeed, in
our judgment, the power to grant new trials for this cause
should be confined to the court before which the case is tried,
who saw the witnesses, and heard them testify, and not be
intrusted at all to another tribunal, who have only a meager
outline of the case afforded by the judge's notes of the evi-
dence taken at the trial.
The strong ground of the defendant as to the negligence of
Eager is, that he ought not to have attempted to pass over the
road at all in the condition it was, — covered with water, and
running along by the margin of a swollen stream; that it was
rash and fool-hardy to make the attempt, and was itself negli-
gence, or worse. It does not appear that the depth of water
upon the road was such as of itself to have made the attempt
to pass very dangerous; it was about up to a horse's body in
the deepest place, and only about up to a horse's knees at the
place of the accident. Nor does it appear that the current of
water over the road was such as to incur any danger of the
team being swept off by it into the river. The great danger,
if there was great danger, was in their not being able to dis-
tinguish the track of the road, and keep upon it, covered as it
was with water. The ability to do this would depend very
much upon the degree of familiarity and acquaintance Eager
had with the road, and the objects visible in the vicinity of
the road. It seems he lived in the vicinity, and may fairly
be assumed to have been well acquainted with the road, and
to be able to judge by appearances as to the depth of water
upon it, and he had passed over the road once on that same
day.
But there does not seem to have been any inability to keep
upon the road, or that he departed from the ordinary path at
all, until he came to the boards, one end of which had been
detached from the fence, and swung across the road upon the
water, and he had already passed the deepest water, and come
to where the water was comparatively shallow. These boards
across the road were undoubtedly the real cause of the dis-
aster, and but for them Eager would have passed through
Jan. 1865.] Hill v. Town op New Haven. 621
•lafely. These boards, Ijring on the surface, and reachinf
nearly to the bank of the river, prevented the team from pass
ing, and being swayed and agitated by the water, doubtlesf
irritated and frightened the horses, and made them to somi
extent less manageable.
It does not appear that the condition of these boards was
known to Eager when he entered upon the road, or that he
had any reason to suppose that he should meet any such ob-
struction to his passage. Nor does it appear that these boards
could have been or were seen by him until he approached
them.
We are therefore unable to say that it was unreasonable
and imprudent to attempt to pass over the road under the
circumstances, or to say that the jury were wrong in finding
that it was prudent and reasonable.
It was conceded that Eager was usually a competent and
skillful manager and driver of horses, but the defendant
claimed that on this occasion he had drank ardent spirits to
such an extent as to disqualify him to exercise his usual skill.
We cannot say from the evidence that Eager was at all
deprived of his ability to drive with skill and judgment by
the use of spirits. It was claimed that one of the horses
driven on the occasion was irritable and fractious, and that it
was imprudent to attempt to drive such a horse through the
water, even if a steadier and milder tempered one might have
been driven with safety.
We cannot say from the evidence that Eager's mare was
anything but a high-spirited, ambitious, active animal, nor
that in the hands of a skillful driver, accustomed to drive and
manage her, it was not as safe to drive her over this road as
one of less spirit and activity.
Upon the whole case, we think the questions upon which
its proper decision rested were eminently proper to be sub-
mitted to the determination of the jury; that they were prop-
erly and carefully submitted to them; and we are unable to
say they were not rightly decided.
The judgment is affirmed, and the petition for new trial
dismissed, with costs.
BuBDEf OF Proot, wuri'HJUt Rbt8 on Plazivtitf to Show Want of
OxHTBiBDTORT NsoLiaxNCB: Note to Farish r. Reigle, 62 Am. Dec. 686;
Lueaa v. New Bedford etc, i?. /?., 66 Id. 406; Cfhieago t. ifo^'or, 68 Id. 653;
Jo/mmmr. HudmmHiver R. H., 75 Id. 275, and note; JHUwamkee etc JL B, r.
Hunier, 78 Id. 099; Oahagan ▼. Boston etc, B. B,, 79 Id. 724; McOuO^ r.
622 Richardson v. Cook. f Vermont,
Clarke, 80 Id. 584; Warren ▼. FUehburg Ji. H., S5 Id. 700; Oilman v. BasUm
R, E., 87 Id. 635. The principal case is cited in Shrffv. City of Huntington,
16 W. Va. 317» to the point that«contributory negligence ia purely matter
of defense, and the burden of proving it is on the defendant.
CONTRIBUTOBT NsOLiaENGB, WHEN QUESTION OF FaOT: See Zemp ▼.
Wilmington etc, B. B,, 64 Am. Dec. 763; Chicago v. Major, 68 Id. 553; Mil-
waukee etc R, R, V. Nunier, 78 Id. 699; Oahagan t. Boston etc. R. R., 79 Id.
724; McOully t. Clarke, 80 Id. 584; Todd ▼. Old Colony etc, B. B., 83 Id. 679;
Spencer v. Milwaukee etc B, R., S4t Id. 758; Warren v. FitchJburg R. R., 85 Id.
700; Snow v. Housatonic R. R., 85 Id. 720; Fox v. Sackett, 87 Id. 682. The
principal case is cited in Rogers v. Swanton, 54 Vt. 593, to the point that
the question of contributory negligence is generally one of fact for the jury;
and see also Campbell t. Town of Fair Haven, 54 Id. 340.
The principal case is also citsd in Toum qf Westmore ▼. Town qfShtf'-
JIM, 56 Vt. 248, to the point that a new trial will not be grvnted becauaa
tbe verdiet ia against the weight of eridenoe. unless it is clearly and plainly sow
BlOHABDSON V. GoOE.
rs? Vebmoiit, 599.]
liMOBLATinui HAT CaAHGX AND MoDiF7 Reicedies, forms of proceediiigi^
or the tribunal itseli^ if it does not directly or indirectly destroy or abol-
ish all remedy whatever by which the performance of any daas cf Talid,
legal contracts may be enforced. Per Poland, G. J.
LiQiSLATUBX MAT CoNTBOL STATUTE OT LiMiTATioirs, if it docs uot thereby
take away the remedy to enforce existing contracts. Per Poland, C. J.
0CATCTE8 will BE PRESUMED TO HAVE BEEN INTENDED BT LEOISLATUIUi
TO BE PROSPBOTIVE, and not retn-speotive, in their action, where a retro-
spective effect would work injuslice and disturb rights acquired under
the former law.
PBO0PEOTIVE, AND NOT RETBOSPaonvx, EiPBOT WILL BE GivEN to sectlaa
25, chapter 63, General Statutes of Vermont, providing that "no ac-
knowledgment or promise shall be held to affect any defense made under
the provisions of this chapter unless such acknowledgment or promise
shall be in writing, signed bv the party affected thereby," and therefore
the statute will not apply to an action pending when it took affect.
Absumpbit. The defoDdants pleaded the general issue and
the statute of limitations. They subsequently pleaded a re-
joinder, to which the plaintiff demurred. The court sustained
the demurrer, and gave judgment for the plaintiff. The de-
fendants excepted. Th? question in the case appears from
the opinion.
Charles N. Davenpcrty for the plaintiff.
n, E. StoughUm^ for the defendants.
Feb. 1865.J Richardson v. Cook. 623
By Court, Poland, C. J. This action was pending when the
General Statutes came into force as laws on the first day of
August, 1863.
The defendants by the pleadings concede that their testator,
within six years before his decease, made such a verbal new
promise 1o the plaintiff's intestate, to pay his debt to him,
that by the then existing law the debt was in full force as an
existing legal obligation, and an adequate legal remedy also
existed by which its payment might be enforced. At the time
when the pleadings were filed, and when the cause was heard
and decided in the county court, the General Statutes were in
force, section 25 of chapter 63 providing that "no acknowledg-
ment or promise shall be held to affect any defense made
tinder the provisions of this chapter unless such acknowledg-
ment or promise shall be in writing, signed by the party
affected thereby."
The defendants claim that although their testator's promise
when made bound him to the payment of the debt, and when
the plaintiff brought this action he had a legal cause of ac-
tion and right to recover, still, that as the above-quoted sec-
tion of the General Statutes came into force before the time
of trial, case is governed by it, and the testator's promise
cannot be proved and made available to avoid the bar of the
statute of limitations because not in writing. It is not denied
but that this application of the statute to the case has the
effect to deprive the plaintiff of any legal right or power to
enforce the performance of what was a legal, valid obligation
at the time this suit was brought; but it is said that this stat-
ute is one affecting the remedy merely, and not the right; that
it is merely establishing a different rule of evidence, by which
new promises to take debts out of the statute of limitations
shall be proved; and that as it is agreed that the legislature
have the undoubted power to alter and modify the forms of
proceedings in legal tribunals, and vary rules of evidence, even
in reference to existing causes of action and suits pending,
therefore no valid objection exists to applying this new section
of the General Statutes to the plaintiff's case; that if it works
an injury to the plaintiff, and deprives him of what was before
a good ground of action, it is only one of those exceptional,
mcidental misfortunes attendant upon all changes in the
forms of remedies and the course of legal proceedings, and
does not prove that the legislature might not properly make
such change in the law.
624 Richardson v. Cook. [Vermont,
The plaintiff insists that if this section of the General Stat-
utes is given a retrospective action, so as to apply to all verbal
promises made before the act came in force, it is to that extent
unconstitutional and void, as being a law "impairing the obli-
gation of contracts," which the several states are proMbited
from passing by the constitution of the United States.
The ''obligation of a contract," within the meaning of the
constitution, is not merely the moral obligation of thb party
who has received the consideration, and is therefore equitably
bound to perform the agreement on his part; but it is the legal
obligation, which embraces not only the right of the party en-
titled to performance, but the power by law to enforce and
consummate that right by compelling that performance. It is
ibis legal obligation, — this right to enforce and make effectual
by legal compulsion in the case of unexecuted contracts, —
which the state legislatures are forbidden to impair: See 3
Story on the Constitution, p. 241, sees. 1370-1376.
It has been repeatedly said by courts in pronounced judg-
ments, and by writers on the constitution, that this prohibition
in the constitution does not apply to statutes relating to reme-
dies, and that therefore it is no objection to a remedial statute
that it is retrospective in its operation. With the quab'Gca-
tion that such statutes shall not be allowed to impair the
obligation of contracts, or disturb absolute vested rights, the
doctrine is free from objection.
It is clearly within the legislative power of the state to make
such changes and alterations in the forms and modes of ad-
ministering justice by its tribunals as they may deem most
conducive to the general welfare; but when, under the guise of
changing or modifying the remedy, or changing a rule of evi-
dence, all remedy whatever is taken away for the enforcement
of any class of valid contracts, such legislation ventures across
the prohibited constitutional boundary, and is so far invalid.
There appears to be a great deal of loose and indefinite lan-
guage in the cases upon this subject, and hardly entire har^
mony in the decisions themselves. Some of the language used
would seem to go far enough to hold that if the statute was
only one in relation to the remedy, it was not open to consti-
tutional objection, though it took away all remedy whatever.
But we think that the result of all the discussions and decia*'
ions is, that such laws are valid, with the qualification above
stated, that they do not impair the obligation of contracts, or
disturb absolute vested rights; or in other words, that the
Feb. 1865.] Richardson r. Cook. 625
legislature may change and modify remedies, forme of pro-
ceedings, or the tribunal itself, as they choose, but they shall
not directly or indirectly destroy or abolish all remedy what-
ever by which the performance of any class of valid, legal con-
tracts may be enforced.
Among the subjects of legislation which have generally been
classed as pertaining to the remedy, and not to the right, is
the statute of limitations. That this is so far true that the
legislature might shorten or lengthen the period of the statute
as to contracts already existing cannot be successfully denied.
But is it equally clear that the legislature might shorten the
period of the statute as to existing debts, so that the creditor
should have no opportunity at all to enforce the debt, and so
that his debt would be barred the moment the statute was
passed? If the legislature were to pass a law providing that
no action whatever should be brought or maintained upon any
f)romissory note heretofore given, no one would question but
that such act would be unconstitutional and void.
If the legislature were to enact that no action shall be
brought or maintained upon any promissory note heretofore
given except within one year from the date of such note, could
it be claimed that such law was valid and binding as to all
notes within its terms? It seems to me the same difficulty in
principle exists as in the case of a prohibition of suits on all
notes.
And so, as applied to the present case, the plaintiff had at
the time this section of the General Statutes was passed a
valid, subsisting, legal contract against the defendants, which
the law furnished an adequate and effectual remedy to enforce,
but by this section, if it applies to the case, all right and
remedy to enforce that contract is absolutely taken away;
and 60 of all the numerous class of cases standing like the
plaintiff's.
It seems to me that the same constitutional difficulty under-
lies this act when applied to previous verbal promises as would
an act prohibiting any action on a note previously executed.
But we are relieved from going into any extensive examina-
tion of this constitutional question, or from making any decis-
ion upon it, for we are all agreed that this section of the statute
does not apply to parol promises made before this section came
in force.
In this country, retrospective legislation has never been
favored. The contracts of parties are made, and the conduct
Am. D»a Vol. Lxxxvm— «)
626 Richardson t;. Cook. [Vermont.
and acts of the people regulated, by the law existing at the
time, and any subsequent change in the law by which any
different effect or consequence is attached to such previous
contracts or acts is always productive of more or less injustice;
60 that irrespective of the constitutional inhibitions against ex
post facto laws, and laws impairing the obligation of contracts
(but still somewhat in analogy to and harmony with them),
such subsequent legislation will be presumed to have been in-
tended by the legislature to be prospective, and not retrospect-
ive, in its action.
In Brigga v. Hubbard^ 19 Vt. 86, the principle is thus stated
by the court: " It is an elementary principle that all laws are
to commence infuturoy and operate prospectively; and no one
can question the correctness of the position as a general rule
that no statute is to be so construed as to have a retrospective
operation beyond the time of its enactment, unless the language
is too explicit to admit of any other construction."
See also, to the same effect, 1 Kent's Com., 8th ed., 455, 456,
and notes. This principle has been repeatedly acted upon
and applied in this court. In the above case of Brigga v.
Hubbard, which was a petition to vacate a judgment by de-
fault, rendered by a justice of the peace, and for a new trial,
the statute in force at the time such judgment was recovered
provided that a petition to vacate, etc., should be brought to
the first or second term of the county court after the rendition
of such judgment. Subsequently, the legislature passed an act
providing that such petition should be commenced within two
years. The plaintiff's petition was brought after the passage
of the latter act, and was within two years after the rendition of
the justice's judgment, but it was not within the act in force at
the time.
The court dismissed the petition, and held that the statute
was intended by the legislature to have a prospective operation
only, as a different operation might work wrong and injustice,
and disturb rights acquired under the former statute.
In Lowry v. Keyes, 14 Vt. 66, it was decided that the act of
1832, which provided that " if any person shall go from this
state before the cause of action shall be barred, the time of
such absence shall not be reckoned in determining the time
within which such cause of action shall be barred," was not
intended to operate upon causes of action already barred by
the operation of the previous statute.
And in Wires v. Farr^ 25 Vt. 41, the court went further, and
Feb. 1865. J Richardson v. Cook. 627
held that the act of 1832 had no retrospective action what-
ever, and that the defendants, in making out the statute bar,
was entitled to have reckoned all the time after the cause of
action accrued prior to the passage of the act of 1832, although
he was out of the state.
It was not questioned in these cases but that it was within
the constitutional power of the legislature to have made the
act apply to all existing causes of action, as a debtor cannot
properly be said to have a vested right to a mere statutory
defense; but the court said, that although the general lan-
guage of the act was consistent enough with such a construc-
tion, they would presume that the legislature did not intend
to disturb any defense acquired, either totally or partially,
under th# former statute.
So in Wright v. Oakley^ 5 Met. 400, a decision was made to
the same effect as in our case of Lowry v. KeyeSy supra, and
the judgment in that case, pronounced by Chief Justice Shaw,
contains a very full and satisfactory discussion of the princi-
ples applicable to statutes, and when they should or should
not be allowed to operate retrospectively.
The same principle of presuming that the legislature in-
tended a new statute to operate prospectively only where a
retrospective effect would work injustice and disturb rights
acquired under the former law has been adopted and acted
upon in the English courts, although Parliament in its legis-
lative powers is unclogged by any constitutional restrictions.
An early and notable example of this class arose under the
statute of frauds passed in the 29th of Charles II., which
enacted that in several classes of actions on promises, '^ no
action shall be brought, etc., unless such promise be in writ-
ing, signed by the party," etc. It was " held that parol prom-
ises made before the passage of this statute, and valid as the
law then stood, were still binding and to be enforced accord-
ing to the former law ": Gilmore v. Streeter, 2 Mod. 310; S. C,
2 Shaw, 17. The principle of these decisions seems exactly
applicable to the case in hand.
The defendants rely very strongly upon Fowler v. Chatter'
ton^ 6 Bing. 258, 19 Eng. Com. L. 75, and several other similar
English decisions, as governing this case.
The statute of 9 Geo. IV., c. 14, was almost identical in lan-
guage with the section of our General Statutes which comes
in question in this case, and it was decided in Fowler v. ChaU
tertony supra, and in several other cases about the same time.
628 Rtchardbon v. Cook. [Vermont,
that after that statute came in force, a parol promise made
prior to the statute could not be proved as an answer to the
plea of the statute of limitations. The statute was passed on
the ninth day of May, but it was provided by another section
that it should not take effect until the first day of the follow-
ing January.
The opinions of the judges are exceedingly meager of rea-
sons for giving this effect to the statute. The fullest opinion
of all is that of Park, J., in Fowler v. Chaiterton^ mejmi, and
the only reason he gives is based upon the fact that the opera-
tion of the statute was postponed for nearly eight months, for
the purpose of enabling all persons holding parol promises \o
enforce them by action, and thus avoid the injustice and
hardship which would be occasioned by an immediate opera-
tion of the new law.
However satisfactory or otherwise this reason may be, it
seems to be virtually conceded that if the act had been passed
without the provision for delay in taking effect, it would have
been entitled to a different construction in this respect.
It may be said that the same reason exists for giving the
flame construction to this section of our General Statutes; that
the General Statutes were enacted by the legislature in the fall
of 1862, and did not go into effect until August 1, 1863. But
this delay applied not to this section only, but to the whole
body of the laws embraced in the Greneral Statutes; so that it
can hardly be supposed that the legislature intended the de-
lay as a warning to creditors whose debts were in legal life by
virtue of parol promises of their debtors that they must bring
them into judgment before the first day of the succeeding
August.
Another satisfactory answer to any such suggestion in refer-
ence to our statute is, that by the settled course of the sessions
of our courts, and the rules of practice in them, a litigated
suit could not have been commenced and brought to a final
trial in the period which elapsed between the passage and
coming into effect of the Greneral Statutes, showing clearly
that the delay could not have been given for any purpose of
enabling creditors to avail themselves of such parol promises
before the new law took effect.
In justice to the counsel for the defendants (who has ar-
gued the cause with great learning and ability), it ought to be
said that he has attempted no argument drawn from the fact
that this law did not take effect from its passage, and what
Feb. 1865.] Richardson v. Cook. 629
has been said on that point has been suggested by the reason
given by the English judges.
That this statute is eminently one where the principle of
prospective effect only should be given, we regard as clear,
both on principle and by the authority of previous cases. By
the parol new promise, the plaintiff's debt was equally valid
and as easily enforced as if he had taken a new note or an
acknowledgment or promise to pay it in writing. He had
done all that the law required to make himself secure, and
might well omit to do more, — he might very naturally have
given delay and favor to his debtor, and neglected to collect
his debt, relying upon this very promise to pay. Under these
circumstances, if the legislature had the power, it would be
most manifest injustice for them to interpose a new statute
defense that would enable the defendants, without any fault
or laches on the part of the plaintiff, to avoid judgment. It is
a clear case, as we think, for presuming that they intended no
such unjust effect. If anything were needed to show what
the legislature in fact intended, it might be found in the
haste with which they gave their construction of this section
after they learned what was claimed for it: See Session Laws
of 1864, p. 49, No. 32.
This view renders it unnecessary for us to examine or decide
on other grounds presented as to whether, if this section of
the statute applied to the case, it would be within the saving
act (c. 180, Oen. Stats.), or whether the case is affected by tho
act of 1864.
Judgment affirmed.
Leoislattvs CoivTBOL OVXR BsBCXMiB: See Von Bemmbaeh v. Bade, 7i
Am. Dec. 283; Rwpenf Bank ▼. WiUiard, 76 Id. 766; Ooob ▼. Graif, 81 Id. 186^
and the Dotes thereto.
BxTBOSPionyB Qpsbation will not bi Givxn Statcti^ nnlees the in-
tentUm to give it snch operatioQ ia clearly ezpreved: Stamana ▼. Oarier, 89
Am. Deo. 696; Conway ▼. Cable^ 87 Id« 240^ and notaa.
630 Pebbon v. Chase. [Vermont,
Person v. Chase,
\V7 VSKMOMT, 647.1
Absolote Gift ov Articles of Personal Property Mabb bt Iwaht
OAN BE Revoked or avoided by him or by his administrator.
EMAMGIPATIOZr OF InFANT BY HIS FaTHSR DOES NOT ENLARGE OR AfFBOT
HIS Capacity to contract or dispose of his property by gift.
Trover brought by the plaintiff, as administrator of his
minor son, to recover several articles of personal property
which the deceased had given to the defendant's minor daugh-
ter, to whom he was engaged to be married at the time of his
death. The plaintiff had emancipated his son before the gifts
were made. The court charged the jury that if they should
find an absolute gift, the plaintiff was not entitled to recover.
There was a verdict for the defendant, and the plaintiff ex-
cepted.
Butler and Wheeler, for the plaintiff.
Charles N. Davenporty for the defendant.
By Court, Kellogq, J. The question in this case is, whether
an absolute gift of articles of personal property made by an
infant can be revoked or avoided by him, or by his adminis-
trator as his legal personal representative. There is a recog-
nized distinction between those acts of an infant which are
voidable and those which are void; but these terms have been
not unfrequently used in statutes, decisions, text-books, and
contracts in an ambiguous or indefinite sense, and without any
regard to strict precision of meaning. The application and
import of these terms were very fully considered in State v.
Richmond, 26 N. H. 232, and in Pearaoll v. Chapin, 44 Pa. St. 9.
In Williama v. Moore, 11 Mees. & W. 256, Baron Parke recog-
nizes this indefinite use of the term "void," and clearly defines
its application to the acts and contracts of infants, by 6a3ring
that an infant's contracts are void, if by void is meant inca-
pable of being enforced against him; but that if by void is
meant incapable of being ratified, then they are not void. The
tendency of modern decisions is to hold the acts, deeds, and
contracts of an infant as voidable merely: Bingham on Infancy,
c. 2; Bigelow v. Kinney, 3 Vt. 358 [21 Am. Dec. 589]; 2 Kent's
Com. 234 et seq.; 1 Am. Lead. Cas., 4th ed., 244 et seq.
The rules of law as to infants are made for their protection,
and this has been the chief consideration which has been re«
garded in the adjudged cases in determining the legal charactex
of their acts.
Feb. 1865.] Person v. Chase. G31
The general principle is, that the infant shall be bound by
no contract except for necessaries, and that all other contracts
are voidable or confirmable by him at his election; and the
law makes no distinction between contracts executed and those
not executed as to their being voidable: Abell v. Warren, 4 Vt.
149; Price v. Furrmn, 27 Id. 268 [65 Am. Dec. 194]. Judge
Reeve, in his treatise on domestic relations (p. 254), refers
approvingly to a case reported in Keble, showing that if the
infant's privilege will not be suflBciently protected hy consider-
ing his contracts as voidable, they will be held void. In that
case, Scroggam v. Stewardaon, 3 Keb. 369, a barber con-
tracted with an infant "above sixteen years old" for the hair
growing on her head, *'for sixpence in hand paid," and in pur-
suance of the contract, with the license of the infant, cut all
the hair from her head. It was apparent that no way was
left to her to avail herself of her privilege without consider-
ing the contract as void. She accordingly brought an action
against him for a trespass in forcibly cutting off the hair from
her head, and recovered, — the court (of which Lord Hale was
the chief justice) sa3dng that "the infant could not license,
though she might agree with the barber to be trimmed." In
Carpe v. Overtarij 10 Bing. 252, 25 Eng. Com. L. 121, it was held
that the plaintiff might recover back, in an action for money
had and received, a sum which while an infant he had paid in
advance towards the purchase of a share in the defendant's
trade, to be retained by the defendant as a forfeiture if the
plaintiff failed to fulfill an agreement to enter into partner-
ship with the defendant, — the plaintiff not having actually
received any profit or benefit from the business; and the doc-
trine is now well settled, that when a contract is avoided by
an infant, he may recover back whatever he has paid or
deUvered on it: Price v. Furman, supra, in which case the
right or privilege of infants to avoid their contracts, and the
consequences resulting therefrom, are very fully considered
and stated.
If an infant cannot trade, nor bind himself by any con-
tract in relation to trade, — if he can neither purchase nor sell,
nor dispose of property so as to bind himself, — a fortiori he
cannot bind himself by a gift of his property, even though ac-
companied by a manual delivery. If the rule was otherwise,
the protection which the law extends to him would be com-
pletely eluded. Under the laws of this state (Gen. Stats., p.
877, sec. 4), an infant cannot make a testamentary disposition
G32 Person v. Chase. [Vermont,
of personal estate; and it would be singular if he should be
held competent to make a valid and binding disposition of
such property by an executed or executory gift in his lifetime,
although clearly incompetent to make any disposition of it by i
a last will and testament. An infant has no more capacity to I
dispose of his property by gift than he has by contract, and it
is as essential that he should be protected from the conse-
quences of an improvident gift of his property as it is that he
should be protected from the consequences of an improvident
contract in respect to it. The emancipation of the infant by
his father did not enlarge or affect his capacity to make a
contract, and its only effect was to release him from his father's
control, and to give to him a right, as against his father, to his
earnings: Taunton v. Plymouth^ 15 Mass. 203; Vent v. Osgood^
19 Pick. 572.
The privilege of an infant to avoid his acts or contracts is
his personal privilege; but it is well settled that after his death
this privilege extends to his legal personal representatives.
Thus, the infancy of a testator is a good plea by an executor
to an action on a promissory note made by the testator: Hus-
eey v. Jewett, 9 Mass. 100; 2 Kent's Com. 236, 237; Jefford v.
Ringgold, 6 Ala. 544; Parsons v. fliZZ, 8 Mo. 135. If the plain-
tiff, as the administrator of the estate of his deceased son, who
was the infant in this case, could effectually avoid or revoke
gifts of articles of personal property made by the son in his
lifetime, it is clear that a demand of the articles by the plain-
tiff as such administrator of a party who was in possession
of them was a sufficient act of avoidance or revocation of the
gift; and no question was made on the trial as to a conversion
by the defendant of the articles in controversy in case the
plaintiff was entitled, as the legal personal representative of his
eon, to demand and recover for them.
These conclusions lead to a reversal of the judgment of the
county court, and to a new trial in the cause. But while we
are not at liberty to recede from the established rules of law
applicable to the subject-matter of this litigation, we are not
insensible to the impressions of the plaintiff's case which the
facts stated in the bill of exceptions, and necessarily found by
the jury under the charge of the court, are calculated to pro-
duce. We can hardly, and without reservation, apply to those
facts the spirit and sentiment of the language used by Hyde, J.,
more than two hundred years ago, in delivering his opinion
in the exchequer chamber in the celebrated leading case of
Feb. 1865.] Nott and Wifb v. Stoddard. 633
Manby v. Scottj 1 Mod. 124, on the subject of the husband's
liability for debts contracted by the wife for necessaries when
living separate and apart from hini) and say that ''this case is
the meanest that ever received resolution in this place, but as
the same is now handled, it is of as great consequence to all
the king's people of this realm as any case can be."
Judgment of the county court for the defendant reyersed,
and a new trial ordered.
Got bt Iktaht mat bi Avoidbd: F<mda ▼. Van Heme, 30 Am. Dea
77, 81.
Ihi'aiit'b OoiTEBACTS, WBXK BorDDia: See MuMaard v. W6hVord^9 Htk^ 76
Am. Dec 200; NoBlMUeUi. B, B. ▼. BUioO, 78 Id. 606.
NoTT AND Wipe v. Stoddabd.
l» Vbbmomt, 2ft.]
VxBMONT STATirrB AuTHORizzMO NoTiOB OF JVBTXViaATiON in ■binder M «
Bubfltitote for a special plea dinpenses with the form bat not with the
sabstance of the plea. Such notice, to let in evidence as a defense not
admissible under the general issue, must contain all the facts necessary
to oonstitnte a good special plea.
Plka. of JuarronoATiON in Slaitdxr need not justify the coOogukan, It is
sufficient to justify the words which constitute the slander as charged in
the declaration.
Where Words Charged in Slander are Diyisdui without materially
changing the sense, or constitute two distinct slanden or charges against
plaintiff defendant may justify one and rely on the general issue in de-
fense of the other.
Where Words Charged as Slanderous are Ambxguous, plaintiff may
allege the meaning of defendant in the language which he used, and if
the defendant pleads justification, he must justify the words in the sense
in which they are alleged in the declaration. It is not sufficient to jus-
tify the very words used.
Evidence is Admissible in Slander of the report abroad in the oom-
munity, caused by the charge made by defendant in uttering the slan-
derous words, as tending to show the extent of injury to plaintiff and
the extent and necessary consequences of defendant's wrongful act for
which he was responsible.
In Slander, Evidence or Distress of Mind and anxiety suffered by
plaintiff is admissible so far as it tends to prove the extent of the direct
and natural consequences of the defamatory words spoken.
Slander. — Plaintiff icay in Good Faith Make Inquiry through a third
person of defendant if he has made a slanderous charge against plaintiff
and if defendant in malice reiterates the charge in reply, the words
spoken at that time are actionable; but if the inquiry is made as a trick
for the purpose of inducing defend^t to utter a slander, the words thus
elicited are not a ground of action. In such case, the question of malioe
is for the jury.
6o4 NoTT AND Wife v. Stoddard. [Vermont,
Slander. — Malice is Implied bt Law where worda spoken are •defama-
tory and actionable. In such case, the qaestion of malice is generally not
submitted to the jnry, except upon the question of damages, unless the
occasion of speaking the worda is such as to rebut the inference of
malice, and render the speaking prima fade excusable. In the latter
instance there must be malice in fact to warrant recovery.
Slander. — Maijoe ib not Imfubd in cases of confidential communications.
In these cases, malice must be proved by eztrinsio evidence, or inferred
as matter of faot by the jury from the oircnmstanoes.
Case for slander to recover damages. The opinion states
the facts.
Eddy and Stoughton^ for the plaintiffs.
Stoddard, for the defendant.
By Court, Peck, J. 1. It is insisted by the counsel for tne
defense that the county court erred in deciding that the notice
of justification to the first count was insufficient, and holding
the defendant to trial upon the plea of not guilty. It has long
been settled by decisions in this state that a notice, in order to
let in evidence as a defense not admissible under the general
issue, must contain all the facts necessary to constitute a good
special plea. The statute authorizing a notice as a substitute
for a special plea dispenses with the form but not with the
substance of a plea. If the facts alleged in the notice would
be defective if set forth in the form of a plea, the evidence
under the notice may be objected to at the trial, and if ob-
jected to, should be excluded. This must necessarily be so,
as a notice under the statute neither requires nor admits of
any answer in pleading by way of demurrer or replication. It
is only open to answer by proof and to objection to the evi-
dence oflered under it. The question therefore is, whether the
facts set forth in the motion would constitute a good plea in
bar to the count to which it refers.
It is true, as claimed by the defendant's counsel, that it is
not necessary in a plea of justification to justify the coUoquium.
It is sufficient to justify the words which constitute the slan-
der as charged in the declaration. Nor is the justification in
this case bad because it does not profess to justify all the
words charged. Where the words charged are divisible with-
out materially changing the sense, or constitute two distinct
slanders or charges against the plaintifi^, the defendant may
justify one and rely on the general issue in defense of the
other. The justification in this case, therefore, is not had
merely because it does not profess to justify the words, "she
Feb. 1865.] Nott and Wife v. Stoddard, 635
is the greatest thief that ever lived in Cambridgeport"; be-
cause the charge of stealing Wheeler's wood is sufficiently
distinct to warrant a separate justification.
But the fatal defect in the defendant's notice is, that it does
not justify the charge contained in the words that it professes
to justify. All that is alleged in the notice may be true, and
yet the defendant be liable for speaking the words he attempts
to justify. The words, "I saw her out taking wood from
Wheeler's wood-pile, and carry it into her house," do not neces-
sarily import a crime so as to be actionable. They are made
actionable by the innuendo that the defendant intended
thereby stealing. Where the words are ambiguous, it is com-
petent for the plaintiff thus to allege the meaning of the de-
fendant in the language which he used, and it is for the jury
to find the sense in which* the words were spoken. In such
case, it is not sufficient for the defendant to justify the very
words; he must justify them in the sense alleged in the decla-
ration. By reljdng in his plea on the truth of the words
spoken, he, by implication at least, must admit the speaking
of the words in the sense alleged in the declaration, and in
that sense must justify them. The defendant's notice is de-
fectiye, as the declaration alleges, in substance, that the defend-
ant charged her with stealing Wheeler's wood, and the notice
does not show or propose to show that she was guilty of any
such offense. The notice only alleges that she took the wood.
What is alleged in the notice may be true, and the plaintiff
may have been guilty only of a trespass, or not even that; she
may have taken it by license of the owner. This does not
justify the defendant in accusing her of stealing it. Had the
facts alleged in the notice been in the form of a plea of justifi-
cation, it would have been bad on demurrer, for if the plaintiff
should traverse such a plea, and the jury should find that the
plaintiff did take and carry away some of Wheeler's wood,
the defendant would be entitled to a verdict, even if it ap-
peared that it was by license of the owner, and that, too,
known to the defendant at the time; because the plea would
be proved. So that to hold such a plea good would enable
the defendant to defeat the plaintiff's action, although the
jury might find that he charged the plaintiff with the crime of
larceny when he knew she was innocent. The county court
properly ruled that the notice was defective.
2. The exceptions state that "several witnesses testified,
under objection by the defendant, that in the course of the
636 NoTT AND Wife v. Stoddard. [Vermont^
spring and summer of 1862 the rumor and report was abroad
in the neighborhood of said accusation by the defendant
against Mrs. Nott, .... and that among the witnesses thus
testifying, Atchison testified as follows: 'I heard the report
talked about whenever I was out, particularly when it first
came out.' " An exception is taken by the defendant to the
admission of this evidence. It does not definitely appear at
what precise date the defendant first spoke the words attrib-
uted to him in the declaration. If it was after the period
referred to by the witnesses who testified to this rumor, the
evidence was inadmissible; for if so, the rumor could not have
been in consequence of the publication of the slander by the
defendant. If it was before, we see no valid objection to it, as
we understand the exceptions. It is insisted by the defend-
ant that if others slandered the -plaintiff by repeating the
slander, they, and not the defendant, are responsible for such
repetition. This is undoubtedly true as to such persons as
repeated the accusation under such circumstances as to make
themselves liable to an action for such repetition of the slan-
der.
But we do not understand this to be the nature and tendency
of this evidence. The construction we give to the exceptions
is, that the report abroad in the community was that this de-
fendant had charged Mrs. Nott with this offense. One would
not necessarily be liable to an action for speaking of the^fact
that the defendant had made such an accusation against the
plaintiff. The fact that the defendant had made such accusa-
tion would almost inevitably gain more or less notoriety in
the neighborhood from the publication of the slander by the
defendant, and the extent of the injury to the plaintiff would
be dependent somewhat upon the degree and extent of this
notoriety. The defendant is responsible for the necessary con-
sequences of his wrongful act, and this evidence was admissi-
ble as tending to show the extent of such consequences, that
is, the extent of the report that the defendant had thus accused
the plaintiff. Whether evidence would be admissible to show
that after the speaking of the words by the defendant it was
generally reported that the plaintiff was guilty of the crime,
is another question, and one which we are not called on to
decide.
3. It is insisted that the court erred in admitting evidence
to show the effect of the slander upon Mrs. Nott, the plaintiff.
The declaration contains the usual allegation in such actions,
Feb. 1865.] Nott and Wife v. Stoddard. 637
that in cotisequence of the speaking of the defamatory words
she suffered great anxiety and distress of mind, and has been
rendered liable to be prosecuted for the crime of larceny.
There is no right which persons regard as more sacred than
that of a good name and reputation, and nothing in relation
to which they are more sensitive than to an imputation upon
their character. Pain, distress, and anxiety of mind is the
usual and necessary consequence of the imputation of crime,
or of any act that tends to render one odious in the commu-
nity. The mental suffering caused by the sudden loss of a
good reputation in community is an important clement in
the estimation of damages in actions of this character. If the
evidence objected to is not admissible, it is not because the
fact it tends to prove is not a legitimate consideration in esti-
mating damages, nor because such damages are not alleged
in the declaration. It is true, such damages may be and are
usually inferred by the jury without direct proof. It is in-
sisted it should be left to inference from the nature and ten-
dency of the wrongful act complained of, and that it is not the
subject-matter of proof. But we see no reason why it is not a
matter of proof to the extent of the direct and natural conse-
quences of the defamatory words spoken. It is insisted that
such proof is only admissible to show special damage, and
then must go to the extent of showing such mental suffering
as to cause a loss of time and inability of the plaintiff to per-
form accustomed labor. To establish this last proposition,
Underhill v. Welton, 32 Vt. 40, is referred to. But in that case
it was held that the words were not actionable, and could be
made so only by an allegation and proof of special pecuniary
damage. It was further held that proof of such grief or mental
suffering produced by the slander as rendered the plaintif}
less able to perform her usual labor or attend to her business
affairs was sufficient proof of pecuniary loss to sustain the ac-
tion. The principle of that case is rather in favor of the ruling
of the court in this case admitting the evidence. The evidence
was properly admitted.
4. A question is made as to the ruling and charge of the
court in relation to the words spoken by the defendant to Ziba
Chapin, on his inquiry at the instance of the plaintiff as to
the report that he, the defendant, had charged the plaintiff
with stealing wood. The court very properly charged the
juiy that if the plaintiff caused the inquiry to be made as a
trick, for the purpose of inducing the defendant to utter a
\
638 NoTT AND Wife v. Stoddard. [Vermont,
slander against her, she could not make the words thus
elicited a ground of action. The defendant requested the
court to charge that no action would lie for the words spoken
on that occasion. The defendant was not entitled to such
charge. If the inquiry was made in good faith on the part ol
the plaintiff and Chapin, merely to ascertain whether the de-
fendant had made such a charge, the words spoken on that
occasion might be the ground of an action, as the defendant
would have no right to avail himself of that occasion to re-
iterate the slander to gratify his ill will or malice toward the
plaintiff. The occasion was not one where the defendant was
absolutely privileged, like a witness testifying in court, and
some other cases where, from principles of policy, the occa-
sion is absolutely privileged, irrespective of the motive or
malice.
But the court told the jury that if the inquiry was made
fairly and in good faith on the part of the plaintiff and Chapin,
etc., and the defendant repeated the charge and asserted the
fact, it would be actionable slander, unless proved to be true, —
that the circumstances under which it was done were to be,
considered as bearing on the question of damages. In this
there was error. The defendant is not liable for the words
spoken on that occasion unless they were spoken with malice,
and the question of malice ought to have been submitted as a
fact to the jury. If the defendant knew the words to be false,
or had no reason to believe they were true, it would be suffi-
cient and conclusive eviilence of malice. Although the de-
famatory words relate to what the defendant professed to have
seen himself, yet it cannot.be assumed by the court that he
did not believe them to be true. He might possibly have
been honestly mistaken. He might have been mistaken in
the identity of the person. It is true that malice is not gen-
erally necessary to be proved or found by the jury where thd
words are in themselves defamatory and actionable. Malice,
in such cases, is implied by law; or in other words, the speak-
ing of the words is a wrongful act intentionally done, without
just cause or excuse. This is malice in its legal sense, and
when the words are defamatory, the law infers malice, and
the question of malice is not submitted to the jury except
upon the question of damages, unless the occasion of speak-
ing the words is such as to rebut that inference, and render
the speaking prima facie excusable; in which case the plain-
tiff cannot recover unless there is malice la fact. Cases of
Feb. 1865.] Glidden v. Town op Reading. 639
giving the character of servants, confidential advice for some
legitimate purpose, communications to persons who ask for
information and have a right or interest to know, are of this
character. In such cases malice must be proved by extrinsic
evidence, or inferred as matter of fact by the jury from the
circumstances. The case at bar, so far as relates to this part
of it, belongs to this intermediate class of cases, where on the
one hand the occasion does not necessarily justify the words,
nor on the other hand, is malice to be inferred by law, but
must be found by the jury. These cases are an exception to
the general rule that malice is to be presumed as matter of
law. As the court left the case to the jury under the general
rule, the charge in this respect was erroneous. As the evi-
dence stood, this error in the charge may not have made any
difference in the verdict, but it cannot be assumed that it did
not.
Judgment reversed, and new trial granted.
Malics is Impued ibom Spkakino Slandeboits Wobds: Hm^ v. Brofih^
71 Am. Dec. 252, and note; Lanoton y. iftdb, 81 Id. 49, and note; and legal
malice is a qneation for the conrt, and not for the jury, although the question
of actual malice may be left to them: JdUaon y. Chodtom, 69 Id. 62, and note.
Maucb is not Implied in cases of priyileged communications, but must be
shown affirmatiyely: Latonn y. HkkSf 81 Am. Dec 49, and note.
Where Slandebous Words are AMBiouons, plaintiff may by innuendo
allege the meaning of defendant in the language used, and it is for the jury
to find the sense in which the words were spoken. In such case, it is not
sufficient for defendant to justify the yery words used; he must justify them
in the sense in which they were alleged: Soyce y. MdUmeyt 67 Vt. 328, citing
the principal
Glidden v. Town op Ebadino.
[88 VBEMOKT, 68.1
BuvD Traveler Actiko with Brasdnablb Care and Prudence does not
contribute to an injury receiyed by him in yoluntarily going out of the
traveled path upon a night so dark that he could not be seen, when, hear-
ing a team coming toward him from an unknown direction, and at an un-
known distance, he leaves the road from a reasonable sense of danger to
secure his personal safety, haying reason to think that he would be run
over if he remained in tiie traveled path. In such case he is justiiled
by necessity in so doing.
Foot-traveler , MAY REcoyBR for Injury Received by voluntarily leav-
ing the highway under a reasonable fear of injury or sense of danger, and
in order to secure his personal safety. It is not necessaay to his recovery
that he was " forced out of the traveled path by unavoidable accident or
circumstances beyond his control. '*
640 Glidden v. Town of Reading. [Vermont^
FooT-TBATELSR Who IS Blikd and ignorant of the condition of the highway
haa a right to presume that the road ia reasonably safe in its margin, snr-
face, and mnniments.
Pabty Who Rboeivbs Injury by yolnntarily leaving a highway through
necessity cannot be barred of his recoyexy by the negligenoe of one iriio
does not sostain such relation to him as would make his want of care im-
putable to plaintiff.
Case for injury received bj reason of the influfficiency of
a highway. The opinion contains the fftots.
Converse and Frenc1\y for the plaintiff.
DaviSy for the defendant.
By Court, Aldis, J. The requests to charge which the court
denied were the third, which claimed that the plaintiff could
not recover "if he voluntarily went out of the traveled part
of the road"; the fourth, "if he went to the left-hand side of
the road voluntarily," to avoid meeting a team coming from
the opposite direction; fifth, "if he voluntarily went to the
margin of the road, intending to leave the traveled part"; and
sixth, "if the injury happened outside of the traveled path,
and the plaintiff was not forced out of the traveled path by
unavoidable accident or circumstances beyond his coitrol by
the exercise of common and ordinary prudence." The first
three of these requests suppose that the plaintiff could not
recover if be voluntarily went out of the traveled path. We
must therefore consider how he came to go out of ike traveled
path, and whether his reasons for so going out justify him.
He was blind; the night so dark that nobody cou d see him.
He heard a team coming down the hill towards him and which
he might reasonably think would be very likely it the dark-
ness to run over him if he remained in the traveled path. He
left the road from a reasonable sense of danger, to secure his
personal safety by getting out of the road so as to be safe. If
he remained anywhere in the road he would be in danger. He
could not tell in what direction or over what part of the road
the coming team would pass, nor how near it was to him.
They could not see hinr to avoid him, on account of the dark-
ness; nor could they tell in what part or on what side of the
road they were driving. His only safety was to get clear out
of the road. In voluntarily going out of the traveled path, ho
did what every man so situated would have done from the in-
stinct of self-preservation. He was fully justified by neces-
sity in so doing. If in doing so he acted with reasonable care
and prudence, he cannot be said to have contributed to his
Feb. 18G5.] Glidden v. Town of Reading. 641
own injury. None of the caBes cited by the counsel for the
defense conflict with this view.
In Rice v. Montpelier^ 19 Vt. 474, the traveler diverged from
the road, not from any necessity, but for his own convenience.
In the cases cited from Massachusetts {Shepardson v. Colerain^
13 Met. 55, Smith v. Wendell^ 7 Cush. 498, and Kellogg v. NoHh-
ampton, 4 Gray, 65), the traveler was passing over the part of
the highway out of the traveled path for his own convenience
in going to or from a private path to his house. Upon this
point we think the Massachusetts cases have gone further than
any decisions in this state to exempt towns from liability; but
none of them have gone so far as to hold that if one leaves
the traveled path in order to escape injury to his person, that
being necessary, he cannot recover of the town for an injury
arising from defects in the highway out of the traveled path.
The counsel for the defendant insisted in argument that the
court did not submit the question to the jury whether the
plaintiff went out of the road from a reasonable sense of
danger, and in order to secure his personal safety. The ex-
ceptions state that the court charged the jury fully in respect
to all the features of the case, so that no exception was taken
except in the particulars specified. The defendant's counsel
claim that the refusal to charge as requested in the sixth re-
quest was substantially a refusal to submit the above stated
question to the jury. That request assumes as law that the
traveler who receives an injury when out of the traveled path
cannot recover unless he was "forced out of the traveled path
by unavoidable accident or circumstances beyond his control."
Many cases may be supposed — some have already occurred
and are reported — where "unavoidable accident or circum-
stances beyond the traveler's control" "force him" out of the
path. Such is Cassedy v. Stockbridge, 21 Vt. 391, where the
horse, being frightened, swerved the traveler out of the road.
Other cases may be supposed where the traveler from necessity
voluntarily leaves the traveled road, and yet is not "forced out
by unavoidable accident or circumstances beyond his control."
The case at bar is precisely one of this kind. The plaintiff
left the road voluntarily, from a reasonable fear of injury if he
remained in it, and this was necessity in the eye of the law;
but it cannot be said in any proper or ordinary use of language
that he was "forced out by unavoidable accident or circum-
stances beyond his control." Such language limits the neces-
sity to too strict and narrow limits. Had the court adopted
Am. Dia Vol. LXXXVm-4i
642 Glidden v. Town of Reading. [Vennont,
this language, the jury would not have considered the plaintiff
justified when he voluntarily went out from a reasonable fear of
danger, and a reasonable judgment that his safety required it.
The court properly refused the request expressed in such lan-
guage. But we are not to suppose because they refused a re-
quest so worded that they did not give the jury correct
instructions upon the point. On the contrary, from the words
of the bill as before recited, we are not at liberty to doubt but
that full and accurate instructions on this point were given.
2. It is claimed that the court erred in saying that '^ the
plaintiff had a right to presume that the road was reasonably
safe in its surface, margin, and muniments." This must be
considered in connection with the subject upon which the
judge was charging the jury, and the rest of what he said
on the subject. He was considering the point whether the
plaintiff used reasonable care in seeking the margin of the
highway. He told them that as the plaintiff was blind, and
could not see the condition of the road, — as he was a stranger,
and knew nothing of the road, — he had a right to presume the
road was reasonably safe. In this connection, we are to bear
in mind that the plaintiff did not know there was any bank
or precipice there, nor knew anything that would lead him to
think there was; that he supposed that there was a ditch on
the side of the road, and was feeling for it with his cane in
order to get into it.
Now, what ought a prudent traveler to have considered in
such circumstances? He had no knowledge or means of
knowledge as to the actual condition of the road. He was
obliged to rely upon his general knowledge of the usual con-
dition of roads. Roads usually have a ditch on the side into
which with due caution the traveler can pass, — they are
usually reasonably safe in their margin, surface, and muni-
ments. He had no means of knowing, no reason for think-
ing, that this road at this point was not as reasonably safe
as roads usually are. He had a right to presume that this
road was, as roads usually are, reasonably safe for a foot-
traveler to pass into the ditch; reasonably safe in surface,
margin, and muniments.
In this language of the court we see nothing calculated to
mislead the jury; but rather it prescfhts, very fairly and justly,
the condition of the plaintiff, the circumstances by which he
was surrounded, and the judgment which he ought to have
used, and naturally would have used.
Feb. 1865.] Glidden v. Town of Reading. 643
3. The court told the jury that if the plaintiflF, by any want
of care and prudence, in the slightest degree contributed to
the injury, he could not recover. The defendant claims the
charge should have gone further, and held that if any want
of care and prudence on the part of his attendants contributed
to the injury, he could not recover. By " his attendants," we
suppose Nichols, who drove the team, is meant. The casual
presence of the two females in the wagon could hardly be
claimed as requiring them to exercise any care of him, at least
when out of the wagon.
If the injury had happened to the plaintiff by any negli-
gence of Nichols in driving the team, it might perhaps have
barred the plaintiff from a recovery. But that is not the
question here, and we do not consider it. The injury to the
plaintiff had no connection with the driving of the wagon.
The injury happened to the plaintiff when he had got out of
the wagon for a proper reason, and was endeavoring reason-
ably to get out of the road to avoid danger. The wagon was
not heard coming till after he had got out of his wagon.
When Nichols heard the wagon coming, he got out, and went
to see to the plaintiff; he groped around for him without success
\intil the other wagon had passed, and then heard a rustling
off down the bank, and got down there and found the plain-
tiff. Now, if there was any want of care by Nichols, it must
have been after he heard the wagon coming. Before that
there was no danger to be cared for. Upon this branch of
the case two questions arise: 1. Was Nichols the servant of
the plaintiff, having the charge and care of him, and bound
to take care of him, so that his neglect in this respect could
be called the negligence of the plaintiff? or had he any such
relation to him as would make his want of care imputable
to the plaintiff? 2. If he was such servant or attendant, was
tiiere evidence tending to show any want of care and prudence
on his part?
As to the first question: If the plaintiff was so blind as to
require the care of a servant when traveling on foot in the
highway, and had employed Nichols to take care of him and
keep him safe from harm, and Nichols, in the execution of
this duty, had been negligent, and his negligence had con-
tributed to an injury to the plaintiff, there would be much
reason for saying that Nichols's negligence should be deemed
the negligence of the plaintiff. He who by necessity substi-
tutes the care of another for his own ought, it would seem,
\
644 Glidden v. Town of Reading. [Vermont,
to be responsible that the care of the other should be equal to
what his own should be if exercised in the same matter, and
so responsible for the negligence of his servant, when such
negligence affects the rights of third persons.
The case of Wright v. Maiden and Melrose R. R. Co,, 4 Allen,
283, stands substantially on this ground. A child of two
years of age was allowed by its parents to cross a thickly
crowded street in Boston unattended. It was run over and
injured. The child could not be said to be wanting in can,
for it was not of an age at which it could be expected to exer-
cise prudence. But the negligence of the parents in allowing
the child to run in the street unattended was held to bar the
administrator of the child from a recovery.
But the neglect of a by-stander to save the child from harm
would not have that effect.
The charge of the court as to the care which the plaintiff
should have used in leaving the road was very full and satia-
factory in all respects, as it was not excepted to.
Without, however, assuming to say what the rule should be
in such a case, or what its limitations, it is sufficient to ob-
serve that there is nothing in this case to show that Nichols
had any relation to the plaintiff which imposed on him any
duty whatever of taking care of him, or of protecting him from
injury. All that appears is that Nichols drove the team and
the plaintiff rode with him. It does not appear that the
plaintiff owned the team, that Nichols was in his service or
employment, or owed any duty to or had any care of the
plaintiff, either permanent or temporary. All that is stated
is that the plaintiff rode in the wagon with Nichols.
If the plaintiff, then, had no legal right to demand the ex-
ercise of care and prudence by Nichols to preserve him from
harm, the want of such care and prudence in Nichols ought
not to be chargeable to the plaintiff, or deprive him of his re-
dress against the town for an injury which he had no right to
ask Nichols to guard against.
The court therefore did not err in refusing to charge as re-
quested on this point.
Right of Onb to Recoveb who volaatarily leaves the highway to aToid
a threatened peril: Z/und v. Tyngsiborowjh, 59 Am. Dec 159.
LlABILITT for InjUKIBS RECEIVED FROM DEFECTS IK HlGHWATB: Sm
Bavage v. Bawjor, G3 Am. Dec. 658; Rwoell v. City of Lowell^ 66 Id. 464; Nor^
ris V. Litchjield, 69 Id. 546, and citations in notes to these cases.
Feb. 1865.] Seinnbb v. Wilder. 645
Right or FooT'Pabsinoxrs nr Highway: Note to cyUalkg ▼• Dom, 73
Am. Dec. 408.
It is Dutt or Towirs to Exsp their Boada, both in their snifaoe, mair-
gins, and mtinimimtB, in a reasonable state of repair: DreiD ▼. SiUUm^ 55 Vt.
589. And they are Uable for not erecting proper barriers or mnniments to
protect travelers from accidentally going out of the highway: Mone and W\f€
T, Rkhmondt 41 Id. 441, both dting the principal case.
Tbatxlxb Who is not Forokd iboh Tbatslbd Road, bat volnntarily
leaves it from necessity, may recover for an injnry so received; bat he can-
not recover if he departs from the traveled track withont necessity; and
darkness of itself is not actoal neoessify: Drtw v. StBttont 55 Vt. 598, 599,
citing the principal case.
Thi fbikgipal OASl IS OITXD in Angell on Highways, 3d ed., sec 292, to
the point that a travvler has a right to presnme that the highway is in a safe
SkINNBE V. WiLDBE,
[88 YSBKONT. llfi.1
DDmmAXT IB LiABLB BTTHXB IN Tbispass OB IN Tbotib for picking,
oanying away, and converting to his own ose the frait growing on the
branehes of a tree overhanging his land, when each tree is growing on
plaintiff's land six feet from the division line between the parties, and
its roots have extended into and its branches overhang defendant's land.
Snch tree and its frait are the sole property of plaintiff.
Tm Standing xtfon Division Line between adjoining proprietors, so that
the line passes throogh the tnmk above the surface of the boU, is the
property of both proprietors as tenants in common; bat thia principle
does not apply to a tree standing exclasively on the land of one of the
parties, its roots extending into the land of both. Snch tree belongs
solely to the party oat of whose land it grows.
Tbbb anb its Pboducn is the sole property of him on whose land it is situ-
ated, and its location and property should be determined by the position
of the tnmk or body thereof above the soil, rather than by the roots
within or branches above it.
Tbbbpabs with a count in trover. The opinion states the
facts.
Butler and Wheeler ^ for the plaintiff*
Daven'port and Kellogg^ for the defendant.
By Court, Peck, J. In this case, it appears that the plain*
tiff planted or set apple-trees on his own land six feet from the
division line between his land and the defendant's land; the
trees grew until the roots extended into and the branches
overhung the defendant's land. The question is, whether the
defendant is liable either in trespass on the freehold or in
trover for picking, carrying away, and converting to his own
I
646 SmNNEB V. Wilder. [Vermont^
use the apples growing on the branches overhanging his own
land.
Each party claims to be the sole owner of the fruit in ques-
tion: the plaintiff upon the ground that he is the owner of the
tree; and the defendant upon the ground that the branches
and the fruit thereon overhung his land, and that in virtue of
his ownership of his land he owns everything above it. It is
true that whoever owns land owns above it to an indefinite
height, — that is, he owns the space above, or rather, has the
right to appropriate it to his use, so that no one can lawfully
obstruct it to his prejudice. But it is not true in all cases that
the owner of land owns everything upon or above it, though
placed there wrongfully by another. Certainly, in case one's
personal property is wrongfully placed upon the land of an-
other, the property in the thing is not thereby changed. The
owner of the soil has his remedy by action for damages, and
he may remove it; but he does not become the owner. If a
man build a house on his own land, with the eaves and win-
dows above the surface of the groimd projecting over the land
of the adjoining proprietor, he is liable to an action for dam-
ages, and generally, at least under some circumstances, the
adjoining proprietor may remove the obstruction as a nuisance;
but the material removed does not become his property. In
order to justify the act of removal in such case, he must allege
that the obstruction was wrongfully encumbering his premises,
and that he therefore removed it, doing no unnecessary dam-
age. If it appear that he unnecessarily destroyed it, or appro-
priated it to his own use, the justification fails. This shows
that the right of removal does not depend on ownership, but
on his right to protect his own premises from invasion. The
defendant therefore cannot be regarded as the owner of the
apples merely because the branches on which they grew were
wrongfully encumbering his ground. Suppose the defendant's
counsel is correct, as he probably is, in the proposition that
the defendant had the right to cut the roots and branches of
the tree to the division line so far as they penetrated or over-
hung his land, upon the ground that they were unlawfully
encumbering his premises, — this justification does not extend
to the carrying away and converting the apples upon such
branches to his own use, unless he was the owner of the
apples, either solely or in common with the plaintiff. The
title to the apples depends upon the title to the tree, and the
defendant was not the sole owner of any part of the tree. The
Feb. 18G5.1 Sktnner t?. Wilder. 647
defendant is liable in either count in tne declaration nnlefls he
had some property in the tree.
The remaining ground of justification on which the defend-
ant relies is, that he was tenant in common with the plaintiff
of the tree, and consequently of its product. A tree standing
upon the division line between adjoining proprietors, so that
the line passes through the trunk or body of the tree above
the surface of the soil, is the common property of both propri-
etors as tenants in common. This is not denied. This is an-
other instance where the maxim that he who owns land owns
to the sky above it is qualified and made to give way to a rule
of convenience more just and equitable, and more beneficial to
both parties. To hold in such case that each is the absolute
owner of that part of the tree standing on or over his own land
would lead to a mode of division of the tree when cut that
would be impracticable, and give the right to one to hew down
liis part of the tree to the line, and thereby destroy the part
belonging to the other. The rule is therefore settled that in
such case the parties are tenants in common. It is claimed
that the same principle applies to this case, because some of
the roots of the tree extend into the defendant's land, whence
it draws part of its support. Waterman v. Soper, 1 Ld. Raym.
737, is cited in support of this proposition. In that case, it is
said that it was ruled at nisi priua '* that if A plants a tree
upon the extremest limits of his land, and the tree growing
extends its root into the land of B next adjoining, A and B are
tenants in common of the tree. But if all the root grows into
the land of A, though the boughs overshadow the land of B,
yet the branches follow the root, and the property of the whole
Is in A." There is an anonymous case in 2 Rolle, 255, in
which it is held that if a tree grows in a hedge which divides
the land of A and B, and the roots take nourishment of both
their lands, they are tenants in common of it. It is evident
that neither of those cases is necessarily decisive of the case at
bar, and that they do not control it, unless the principle is
fairly deducible from them that the adjoining proprietors are
tenants in common of a tree in all cases where the roots pene-
trate the soil of both, without reference to the distance of the
tree from the division line. We think this broad principle is
not intended to be established in those cases. In the first,
Waterman v. Soper, supra, it is a condition that the tree be
planted on the extremest limit of the land, so that growing it
extends its roots into the lan^ of the adjoining proprietor. A
I
648 Skinner v. Wilder. [Vermont,
tree thus planted must almost inevitablj in its Bubseqneni
growth extend its body more or less upon the dividing line.
In the other case, the tree grew in the hedge which divided the
land of the two proprietors. Such a division hedge in Eng-
land, like division fences here, is generally prima facte the
common property of both, and the tree may have been treated
as constituting part of the hedge, but if not, it must have stood
in close proximity to if not upon the line. These cases may
reasonably be supposed to have been decided upon the ground
that the trees stood substantially upon the line, and not solely
on the ground that the roots extended into the land of each.
This principle of tenancy in common in a tree merely because
some of its roots extend into the land of the adjoining proprie-
tor, regardless of the location of the tree, would be attended
with so much inconvenience, uncertainty, and embarrassment
in its practical application that it furnishes a strong argument
against the construction of these cases contended for by the
defendant, as well as against recognizing such a principle
unless the authorities lead to that result or the purposes of
justice imperiously demand it. There is at first view an ap-
parent equity in the proposition that the proprietor from whose
land a tree draws a portion of its support should have some
benefit in return, but to allow him an equal right to the tree
and its fruits because a single root penetrates his soil is quite
as unjust as to deny him any right in the tree whatever. If
he is tenant in common, what proportion does he own? If his
interest is in proportion to the portion of nourishment the tree
draws from his land, how is the fact to be ascertained? Sup-
pose the division line runs through a grove, a fruit-yard, a
nursery of trees, or a forest, and this rule is adopted, there
might be a belt of land rods in width on which the parties
would be tenants in common of more or less of the trees. How
is each to know or ascertain what he owns solely, and what in
common, and in what proportion, especially as the rights ol
the parties would be constantly changing by the growth and
consequent extension of roots across the division line ? Prin-
ciples of law and rules of property must be such as are capa-
ble of practical application to business affairs. But suppose
these cases go to the extent the defendant claims, then what
are the authorities opposed to them?
In Masters v. Pollief 2 Rolle, 141, it was adjudged that if a
tree grows in A's close and roots in B's, yet the body of the
trr e being in the soil of A, all the residue of the tree belongs
Feb. 1865.] Skinner v. Wilder. 649
to him also. This case is directly in point to show that the
plaintiff in the case before us is the sole owner of the tree, and
it is directly opposed to Waterman v. Soper, mpra^ upon the
construction put upon that case by the defendant's counsel;
and also opposed to the anonymous case above cited (2 RoUe,
255), unless that case is to be interpreted as already stated;
but if those two cases stand on the ground heretofore stated,
then there is no such conflict: Miller v. Faudrye^ Poph. 161,
163, and Norris v. Baker, 3 Bulst. 178, seem to support the
principle of Masters v. Polliey supra, relied on by the plaintiff's
counsel. The plaintiff's counsel relies on Holder v. Coates, 1
Moody & M. 112, 22 Eng. Com. L. 485. The facts in that
case were much stronger in favor of a tenancy in common than
in this case, and not so clearly in favor of an entire title in the
party on whose land the body of the tree stood as in this case.
The trunk of the tree stood in the defendant's land, and the
lateral or spur roots grew in the land of both parties. The
plaintiff gave evidence to show that there was no tap-root, and
that all the principal roots from which the tree derived its main
nourishment were those which grew in the plaintiff's land. The
defendant's evidence was that there was a tap-root growing en-
tirely in his land, and that the spur-roots grew alike in the land
of each party. The action was trespass for cutting the tree.
Littledale, J., speaking of Masters v. PoKt€, supra, and Waters
man v. Soper, supra, says: " I remember when I read these cases
I was of opinion that the doctrine in the case o{ Masters v. Pollie
was preferable to that in Waterman v. Soper, and I still think
so." So far as this expression of opinion goes, the case makes
for the plaintiff; but as the case ultimately turned, this point
can hardly be said to have been decided. Had the court fol-
lowed either of these cases, a verdict would have been directed.
But the court, after telling the jury not to decide the case upon
the relative proportion of nourishment derived by the tree
from the soil of the plaintiff and defendant, left the case to the
jury to find from the situation of the trunk of the tree above
the soil, and of the roots within it, on whose land the tree was
first planted, and to render their verdict accordingly; telling
them if they could not find that fact, he would then give them
directions on the questions they would then have to consider.
This view is also in favor of the plaintiff in the case at bar,
because the case shows that the plaintiff planted the tree on
his own land, six feet from the division line. The jury in that
case, however, reported that tKpy could not tell on whose land
650 Skinner t?. Wilder. [Vermont^
the tree did first grow; and a verdict was taken for the defend-
ant by consent, on some terms agreed on between the parties;
so that the case can hardly be said to be of much authority aa
a decision. But Lyman v. HaUy 11 Conn. 177 [27 Am. Dec.
728], is identical with the present case in principle, and in its
facts, also, except the tree in that case was two feet nearer the
dividing line than in this case. The court in that case, on
fall discussion and review of the authorities, decided that upon
reason, principle, and weight of authority the tree and the
fruit growing on the branches overhanging the defendant's
land were the sole property of the plaintiff, on whose land the
body of the tree stood, and that the defendant was liable in
trespass for gathering and converting to his own use the fruit
on such overhanging branches. The elementary books cited
are in conflict, all referring to Masters v. PoUief 2 RoUe, 141,
or Waterman v. Soper, 1 Ld. Raym. 737; some following one
and some the other of these cases.
There seems to have been the same conflict of opinion in the
civil law on this subject, notwithstanding the law of vicinage
and the rights and duties of adjoining proprietors were by
the Roman code defined with much more particularity than
by the common law. There is a passage in the Institutes of
Justinian that, as it is generally translated, would seem to
favor the doctrine of Waterman v. Soper, supra^ as claimed by
the defendant. After stating that if one sets his plant in
another's ground, it becomes the property of the owner of the
land where it is set, after it has taken root, the passage pro-
ceeds as follows: "So that if the tree of a neighbor borders so
closely upon the ground of Titius as to take root in it, and be
wholly nourished there, we may affirm that such tree is become
the property of Titius; for reason doth not permit that a tree
should be deemed the property of any other than of him in
whose ground it hath rooted; therefore if a tree planted near
the bounds of one person shall also extend its roots into the
land of another, it will become common to both": Inst. 2, 1,
31 (Cooper's Just. 79). This passage may have reference only
to a tree so near the line as to be regarded as standing sub-
stantially upon the line. But however this may be, it is to be
observed that the civil law in the days of Rome required a
boimdary of five feet to be left between farm and farm, or
rather between the trees of the two adjoining proprietors, ex-
cept in the case of an olive or fig tree, where a space of nine
feet was required. It is evident that the passage above quoted
Feb. 1865.] Skinner v. Wilder. 651
has reference to trees set within the prohibited distance from
the extreme boundary line. There might be more reason in
saying if a party set his tree on the extreme limit of his land,
in violation of express law, that the adjoining proprietor should
become tenant in common of the tree than if no such legal
regulation existed, or if the tree was set no nearer the division
line than the law prescribed. On the other hand, it is laid
down in another book of the civil law that such tree extend-
ing its roots into the land of the adjoining proprietor is never-
theless the property of him in whose land it had its origin:
Dig. 47, 7, 6, 2. This is the rule recognized by Littledale, J.,
in Holder v. CoateSy 1 Moody <fe M. 112, 22 Eng. Com. L. 485.
This rule generaUy would lead to the same result as the rule
that the tree belongs to him on whose land the trunk or body
of the tree is situated; as a tree would naturally be supposed
to grow where it was set or planted. Yet in the case last cited,
the jury were unable to find on whose land the tree was planted,
although the trunk of the tree was on the defendant's land,
because the court told the jury to determine it from the evi-
dence as to the situation of the trunk of the tree above the soil
and of the roots within it. Domat, in treating this subject,
attributes no consequence to the setting of a tree nearer the
division line than the law allows, except that the party thus
offending may be compelled to remove it and pay the damages.
He does not intimate that the tree thereby becomes the common
property of the two adjoining proprietors: 1 Domat's Civil Law,
589, tit. 6, sec. 1, art. 2; 591, sec. 2, art. 1; Cooper's Just. 460,
notes. The civil law, on the whole, is rather in favor of the
plaintiff, and is more in accordance with Masters v. PoUiej
supra. The civil code of France regulates the subject by de-
claring the boundary hedges and the trees within them, with
some exceptions, common property. The civil law cannot be
referred to as authority, and can have no bearing unless for
its reason, and then only on a question not settled by the com-
mon law.
On the whole, we think the weight of authority, reason, and
analogy, as well as convenience, is in favor of the principle
that a tree and its product is the sole property of him on whose
land it is situated; and that, considering the necessary uncer-
tainty of evidence as to the location and extent of the roots of
a tree, its location and property should be determined by the
position of the trunk or body of the tree above the soil, rather
than by the roots within or b>a^^^^®^ above it. But even if a
652 BucKMiNSTEB V. BucKMiNSTEB. [Vermont*
tree standing with its trunk at the extreme limit of one's land,
with the main roots extending immediately into the soil of the
adjoining proprietor, should be regarded as so far substantially
upon the line as to become common property, it cannot be so
regarded in relation to the tree in question, situate six feet
from the division line.
No importance is attached to the agreement between the
plaintiff and the defendant's grantor as to the distance at
which each might set trees; as the defendant, especially as for
aught that appears, purchased without notice of it, and is not
bound by such verbal agreement.
Judgment reversed and new trial granted.
Trxb Gbowino nkab Division Lnrs, bo that its roots extend oh each
side, is wholly the property of him on whose property the trunk stands:
Dvbois y. Beaver, 82 Am. Deo. 326, and note 330; note to Pulc^er ▼. Page,
54 Id. 585.
Tbbb, Trunk ow Which is Dividxd by the boundary line, beUmgs ta
the adjoining proprietors as tenants in oommon, and trespass lies lor tfa«
destraotion of snch tree by one proprietor against the other: JhibaU y.
82Ain.Dec 326^ and note; Ort^n y. ^«E5y, 37 Id. 225.
BUOEMINSTEB V. BuOKMINSTBB.
UaniB VisBMOiiT Statutx, Svnunra Ck>UBT has Pown, after dsoree ol
diyoroe granted, to giye further allowanoes for the support of minor
children, and to grant the wife alimony in addition to tiie amoimt fprem
her in the former decree.
Wbsbb Decree or DiyoRCS with Alimont has been Granted wiihoat
fraud or concealment, by which the court was misled, and upon a hear-
ing or according to agreement of the parties, the supreme court should
be yery slow, under any circumstances, to reyise or alter the former
decree. It should be regarded as the final adjudication between the
parties.
DrroRGSD Husrand has Right to Regard Obligation to Support the
former wife ended, and to be at liberty to enter into new relations with-
out the pressure of the burden upon him of being called upon to pay
increased alimony to his former wife.
Where Degree or DiyoROB has been Graitted under agreement of the
parties, without fraud or concealment, and a liberal provision in alimony
made for the wife, after which the husband marries and has children by
his second marriage, the decree will not be reyised, and additional ali-
mony granted the first wife.
PiTORCE AND DECREEING OUSTODT OF MiNOR CHILDREN TO MOTHBR doeS
not absolye the father from his parental duties and obUgatiomi to the
former. He is still liable to contribute reasonably to their support.
Aug. 1865.] BUCEMINSTEK V. BUCEMINSTBR. 653
This duty the court will enforce, bat in so doing will consider all the
circomstances, and will not allow the right to be abused, as a cover for
the allowance of further alimony to the wife.
The opinion states the fiacts.
Heywoodf for the petitioner.
R088 arid Burbankf for the petitionee.
By Court, Aldis, J. This petition states that the petitioner
was divorced from the petitionee at the September term, 1855,
of the supreme court for this county; that the custody of their
four children, who then were and still are minors, was given
to her by the court; that five hundred dollars in money and
the household furniture were awarded to her as alimony; that
the petitionee transferred and covered up his property, so that
she got only the five hundred dollars, and could not get the
household furniture, valued at three hundred dollars; that she
has always supported the four children, and that her means
therefor are very slender, and the five hundred dollars nearly
spent, and the children some of them in infirm health; and
die prays, first, to be allowed for the household furniture which
by the decree she was to have had, and by the wrong of the
husband she did not get; and secondly, that she be allowed
further so much as she has expended of the five hundred dol-
lars for the children, and also such further sum as may be
thought reasonable for support of the minor children.
1. It is objected that the statutes of our state do not confer
jurisdiction of such a case as this upon the court; that it is
osily where the decree of alimony is for annual allowances, to
be paid firom year to year, that a petition may be presented to
this court
But we think the language of the statute, and its plain in-
tent, confer this authority upon the court.
Section 31 of chapter 80 enacts that " upon decreeing a di^*^
vorce, the court may make such farther decree as they shall
deem expedient concerning the care, custody, and mainte*
nance of the minor children of the parties, and may at any
time thereafter, on the petition of either of the parents, annul,
vary, or modify such decree."
Divorce and decreeing the custody of minor children to the
mother do not absolve the father from his parental duties and
obligations to his children. He must still be reasonably lia-
ble for their support and education. They are of his blood.
It is not their fault that their parents have been divorced. It
654 BucEMiNSTSB V. BucKMiNSTBB. [Vermont,
is their right that those who have brought them into the world
should take care of them till they are old enough to take care
of themselves. So, too, it is the right of each parent to see to
it that they are properly nurtured and educated, and if the
one who has the custody does not faithfully perform that duty,
the other may apply to the court to correct the wrong.
This court is the tribunal of the law to regulate and control
the parties in the discharge of these duties, and to determine
who shall have the care and custody of the children, and how
much each parent shall contribute to their support and edu-
cation.
A decree made at the time of the divorce cannot anticipate
the changes which may occur in the condition of the parents, or
in their habits and character, and their fitness to have the cqb-
tody and care of the children. The parent having the custody
of the children may marry, may become poor and unable to
properly maintain and educate them; may become vidoiu
and morally unfit to have the control of children. These
changes, and other sufficient causes, may make it necessary for
the good of the children that their custody should be changed
or new provi»ons be made for their support and education.
Hence the salutary provisions of our statute.
The thirtieth section of the statute is still more full and ex-
plicit, and extends the controlling power of this court not only
to the care, custody, and maintenance of the children,,but pro*
vides further that the court may from time to time, after any
decree for alimony, on petition and due notice, revise and alt^
their decree resi>ecting alimony or other annual allowancep
or the appointment of trustees and the appropriation of the
trust fund, and '* may make any decree respecting any of the
said matters which they might have made in the original suit."
This is certainly a very large grant of authority to revise and
alter former decrees of this court; and it is obvious that the
exercise of it requires much prudence and caution. It un-
doubtedly extends as far as the petitioner now asks to have it
exercised, viz.: 1. To give further allowances for the support ol
the minor children; and 2. To grant her alimony in addition
to the amount given her in the former decree.
2. Of alimony to her, in addition to the amount given by
the former decree.
Where, upon granting a divorce, there has been a decree of
alimony, and there has been no fraud or concealment by which
the court has been misled, but the decree has been made either
Aug. 1865.] BUCKMINSTER V. BUCKMINBTEB. 655
upon a hearing, or according to the agreement of the parties,
there we should be very slow, under any circumstances, to
revise or alter the former decree. The decree should be re-
garded as the final adjudication between the parties. They
should not be encouraged to try experiments with the court
The divorced husband has a right to regard the obligation to
support the former wife ended, and to be at liberty to enter
into new relations without the pressure of such a burden upon
him.
In this case there are many considerations which induce us
to refuse to alter the former decree as to alimony to the wife.
1. The decree was made according to the agreement of the
parties. There was no fraud or concealment. The wife knew
as much then about the husband's property as she does now.
2. If we look into the decree itself, we find it to have been a
very liberal one to the wife, giving her a third at least (indeed,
we think very nearly one half) of the husband's property. It
is true, she took the heavier burden as to the children, taking
the four younger ones, while the husband took the two sons,
whose age would make them rather a source of profit than of
expense to him.
3. The husband has since married, and has children by this
marriage; his property (which now amounts to about three
thousand dollars) has been chiefly acquired since the divorce.
He is getting old; his wife is infirm; his children by the new
wife are quite young.
4. As a matter of sound public policy, where husband and
wife are divorced, the wife should not be encouraged to think
she has a continuing lien upon the old husband for her sup-
port. On the contrary, the divorce and the decree of alimony
should be understood, as between them, to end their relations
and obligations to each other.
We therefore do not allow anything to her in addition to the
former decree. But so far as she failed to receive the benefit
of the former decree by the husband's taking and disposing of
a part of the household furniture which was decreed to her,
we are disposed to require the husband to make her good.
This is but carrying out the former decree in that particular
in which the act of the husband defeated it. Without special
reference to the evidence, which on this point is somewhat
conflicting, we deem it sufficient to say we allow her fifty dol-
lars, to be paid her on the first day of November next.
3. As to an allowance for the maintenance of the children.
\
656 BucKMiNSTER V. BucKMiNSTEB. [Vermont,
This stands on very different ground. Here the obligation of
the father continues. The decree giving the care and custody
of the children to the wife does not discharge him from his
natural obligation as their father to contribute reasonably to
their support. In enforcing this duty the court will consider
all the circumstances; will not allow the right to be abused,
and under color of maintenance for the children allow further
alimony for the wife; nor disregard the rights of the husband
and his new relations and duties to others.
By the decree the care and custody of the four younger
children were given to the mother. They were all under eight
years of age. All she had for her and their support was five
hundred dollars and a part of the household furniture. It is
not claimed but that she has done her duty faithfully and
well, except, indeed, in one particular, and that a serious one,
and which we do not overlook, that she has taught them to
entertain feelings of hatred to their father. The children are
still all minors, and one of them is in infirm health. The five
hundred dollars is nearly all expended.
We do not feel inclined to visit the misconduct of the
mother, in the particular alluded to, upon the children, so as
to deprive them of all aid from their father. Their welfare
must not be neglected on this account. The misconduct of
the wife, wrong as it is, and painful as it must be to the father,
is to be remedied rather by applying to the court to withdraw
the children from her custody and influence, and to restore
them to their father, than by denying them all aid from him.
But no such application is made, and whether the evidence
when taken fully and directly on the point might not change
the aspect of the case somewhat, is, perhaps, fairly open for
consideration.
Upon the whole, and especially considering that one of the
children is in ill health, we conclude to allow for the support
and maintenance of the children who are in the custody of the
mother, while they are minors, the following sums, viz.: fifty
dollars to be paid November 1, 1865; fifty dollars on the first
day of May, 1866; fifty dollars on November 1, 1866; fifty
dollars on the 1st of May, 1867; and fifty dollars on the 1st of
November, 1867. With these sums for their support, we think
the children can be brought up by the mother and reasonably
educated, and that by the time these sums are expended they
will be old enough to support themselves, with such help as
the mother can give them. These sums are to be paid by
Aug. 1865.] BUCEMINSTER V. BUCKMINBTSB. (557
Salmon Buckminster, the petitionee, to Sarah Buckminster,
the petitioner, and are to be appropriated by her to the sup-
port, maintenance, and education of the four children jfhile
thej are minors, and as they shall respectively need. Each
party to pay his own costs.
Power of Coxnar to Dsobu Aldcont arkb "Dsyobom GaANTBD. — This
topic has been treated in the note to Mdhtbi t. Mdhvin, dO Am. Deo. 668,
where the principles governing this branch of the law are correctly laid down,
and nearly all of the authorities collected and cited. The object here is not
to enter into an extended discussion of the subject, bat simply to give the
later cases relating thereto. It is one goyemed almost entirely by statates,
and in many of the states the express power is given the coort to change or
modify the decree, so far as it relates to alimony from time to time, as is
deemed fit^ by either increasing or diminishing the allowance made for the
wife, upon a proper showing, and upon all the droamstanoes in the case, or
the altered conditions of the parties. See the cases cited in the note men-
tioned, showing in what states the statate gives the court the right to make
soch change; and see also OaL Civil Code, sees. 137, 139; Exparte CoUrettj 59
CsL 417; Lake v. Lake, 4 West Coast Bep. 159-180; CampbeU v. CampbeU, 37
Wis. 206-220. The allowance of alimony is a matter almost wholly within
ttie dtscretion of the trial conrt^ and even in those states where the appel-
late eonrt is given revisory power in the premises the decree will not in this
respect be revised or altered, except upon a showing that such discretion has
been abased: Froman v. Frrnnan, 5S Mich. 581; Jtoae v. Bote^ 53 Id. 585; Oor^
dom V. Oardan, 88 N. C. 45; Webber v. WMer, 79 Id. 672-577; Sawder v. Sow
der, 5 Sneed, 502; Lake v. Lake, 4 West Coast Bep. 159-180; SimimB v. Shmme,
8 N. E. Bep. 37; PaweU v. Powell, 53 Ind. 513; Bauman v. Bauman, 68 Am.
Bee 171. Where the amount allowed is found, however, to be excessive, it
will be reduced: Smith v. SmUh, 28 N. W. Bep. 296; S. C, 19 Neb. 706. The
power to revise or alter the decree is to be exercised only upon new facts oc-
curring after the judgment^ or perhaps, also, upon facts occurring before the
judgment of which the party was excusably ignorant at the time when it
-was rendered: Semron v. Semron, 23 Minn. 214; Blythe v. Bljfthe, 25 Iowa,
286; FSaher v. Fi^ner, 32 Id. 20; Perkina v. Perkins, 12 Mich. 456; Dtsboia v.
Johnson, 96 Ind. 6-14. Or the allowance made for the support of the wife
may be modified when certain conditions enumerated have been performed
or have ceased to exist: Kerr v. Kerr, 9 Daly, 517. And upon an application
to alter the decree for alimony, the court may take into consideration prop-
erty acquired by the husband since the original decree, as well as the tacts
upon which that decree was founded, and the circumstances surrounding the
case: Oravea v. Oravee, 108 Mass. 314; CampbeU v. Campbell, 37 Wis. 206-
224. Or one of the parties to the decree for alimony may by an original
petition and suit obtain a modification of such former decree, upon a proper
showing as to the changed conditions or circumstances of the parties: Olneff
V. Watle, 3 N. E. Bep. 354. The facts alleged must, however, be new ones,
transpiring after the former decree, and of such nature as to justify the
modification: Id. The court may after the decree of divorce is granted en-
tertain a motion or petition to decree to the wife a specific sum instead of
alimony, although such claim is not set out in the libel for divorce: PreecoU
V. PreeeoU, 59 Me. 146.
AK. Dao. Vol. LXXXVm— 12
658 BucKMiNSTER V. BucKMiNSTER. [Vermont,
Undks Ohio Statute, Effect of Appeal from a decree of alimony ia to
reopen for trial in the higher conrt all of the iasues of fact upon which the
rights of the parties in respect to alimony depend, notwithstanding the fact
that thff decree of divorce was granted in the trial conrt^ and remains un-
affected hy the appeal: Cox v. Coos, 19 Ohio St. 502. Under the statutes
of Maine and New York, however, the amount allowed as alimony when
tiie decree of divorce is granted is final, and after the entry of such decree, the
eonrt has no power to order an additional allowanoe for the support of the
wife: Erhtnbraeh v. Erhaibraeh, 96 N. Y. 456. . Kor can the amount allowed
at the time that the decree is granted be modified at any time thereafter by
motion or petition: StraUon t. Strattonj 73 Me. 481.
Alimony on Sepabatb PsooEXDiNas aiteii PiyoncB. — It is provided by
statute in Ohio that the wife may maintain an original action for alimony
after the decree of divorce is granted: Ccx v. Oox, 19 Ohio St. 602; Olnqf v.
Watts, 3 K. E. Bep. 254; and such a course of proceeding seems to be the
practice in Maine: PreaeoU v. PreaeoU, 59 Me. 146-150; Stratttm v. Stration,
73 Id. 481-483; CaU v. Call, 65 Id. 407. Independently of statutory pro-
vision, there does not seem to be much conflict of authority as to the right of
the wife to nmintain a separate suit for alimony. In ShotweU v. BhotioeU, 1
Smedes & M. Ch. 51, it is held that a decree for alimony results from the
decree for a divorce, but is not identical with it, or a necessary part of it;
and the mere omission in the decree to provide alimony does not affect the
wife's right to such provision at a separate time, and by a distinct and sep-
arate proceeding, and this ruling is adhered to in the subsequent case of Lcith
9on V. ShotweU, 27 Miss. 630-4>35. The same doctrine is maintained in Lpon
V. Lyon, 21 Conn. 185; and the wife's disclaimer of alimony at the time that
the divorce is granted is not a bar to subsequent action to recover it: Mc-
KarraeJier v. McKanxtcher, 3 Yeates, 56. So in Maryland, when the divorce
was granted by the general aasemUy, suit for alimony might be maintained
by proceedings distinct from tfaoee for the divoroe: Oram v. Meginnu, 1 Oill
ft J. 463; S. C, 19 Am. Dec. 237.
Tho same rule prevails in Tennessee: J^khardaon v. Wilson, 8 Yeig. 67.
Mr. BLihox) gives it as his opinion that the rule that separate actions may be
maintained, one for divorce and another for alimony, is wrong, and says:
"This doctrine, which permits a litigant te divide into two parts the law's
remedy for one wrong, and sue for one of the parts to-day, and another to-
morrow, in separate actions, and, should he choose, in separate courts, is be-
lieved not to be in accordance with the general principles of procedure in our
jurisprudence": 2 Bishop on Marriage and Divorce, sec. 381. In this view
he is sustained by Wilde v. Wilde, 36 Iowa, 319, where it is held that divMoe
severs the relation of husband and wife, that this must exist to justify the
allowance of alimony, and that a separate suit to recover alimony after the
divorce is granted cannot be maintained by independent proceeding. So in
FiscJiU V. FisdiU, I Blackf. 360, S. 0., 12 Am. Dec. 251, upon a divorce
granted in Kentucky, without provision made for alimony out of the hus-
band's property situated in Indiana, the court of the latter state held that,
under her statute, alimony was only an incident to the divorce; that they
had no orifi^inal jurisdiction to allow it; that if the court granting the divoroe
did not allow sufficient alimony, no other court could supply the deficiency;
and that an application by the wife for additional allowance out of the property
belonging to the husband, and situated in Indiana^ would not be entertained.
The principal cask is citxd in Dubois v. Johnson, 96 Ind. 14, to the point
that the original decree and alimony allowed is conclusive as to the partiee
Nov. 1865.] G1L8ON V. Spear. 659
at the time it was rendered, and that the power given by statate to make
changes in the decree is not a power to grant a new trial in the same case,
bat only to adapt the decree to new and changed circamstanoes of the par-
ties.
Under Statutes in Many States, the word "alimony " is commonly used
as eqnally applicable to all allowances made for the support of the wife opon
decree of divorce, whether snch allowances be made in annual sums or in
gross: Bttrrowa ▼. Purple^ 107 Mass. 432; and under such statutes the ques-
tion whether she should be allowed any alimony, or the amount thereof if
allowed, whether or not she ia the party offending or injured, is within the
discretion of the court, upon consideration of all the circumstances in the
ease: Oraves ▼. Cfravea, 108 Id. 318, both citing the principal case.
Father's LiABiLirr to Sufport Chilprew after divorce granted: Bam-
fmm V. Bauman, 68 Am. Dec. 171, and note.
G1L8ON V. Spear,
rSS Vbbmont, 81L]
ImrAHor is Good Plea in Bar to Action on the case against an infant for
deceit in the sale of a horse, no matter what false representationB he may
have made at the time of the sale as to the soundness of the horse.
Ivfant is Liabls in Action ex Delicto for an actual and willful fraud
only in cases in which the form of action does not suppose that a con-
tract has existed; and where the. gravamen of the fraud consistB in a
transaction which really originated in contract, the plea of infancy is a
good defense.
Case for deceit and fraudulent concealment of unsoundness
in the sale of a horse. Plea: 1. Not guilty; 2. Infancy. The
opinion contains the facts.
Wilson and Hunton, for the plaintiff.
Hutchinson and Rowellj for the defendant.
By Court, Kellogg, J. The sole question in this case is,
whether an action on the case for deceit in the sale of a horse
can be sustained against an infant; and in considering this
question, the facts alleged in the plaintiff's declaration are to
be treated as admitted by the demurrer. It is an admitted
general principle that an infant is liable in actions ex delicto
for positive wrongs and constructive torts or frauds; and it is
equally well settled that where the substantial ground of action
is contract, a plaintiff cannot, by declaring in tort, render a
person liable who would not have been liable on his contract.
Whether the fraud in this case should render the defendant
liable to an action ex delicto is the question which we are to
consider.
660 GiLBON V. Spear. [Vermont,
In Johnson v. Pie, 1 Lev. 169, S. C, 1 Sid. 258, 1 Keb. 905,
913 (decided in 1664, after being twice argued), the infant had
aifirmed that* he was of full age, and confiding in this repre-
sentation, the plaintiff had lent him money, and the action was
an action on the case for the infant's fraudulent representation
in respect to his age. After verdict for the plaintiff, judgment
was arrested on the ground that " although infants may be
bound by actual torts, as trespass, etc., which are vi et armU et
contra pacem, they will not be bound by those which sound in
deceit"; and Lord Chief Justice Keeling is reported to have
expressed great indignation at the attempt to charge an infant
in tort upon that which was the foundation of an action of a»-
sumpsit, and to have said that if the judgment was not arrested
the whole foundation of the common law would be at stake.
In Graves v. Neville, 1 Keb. 778, an action on the case in the
nature of deceit for the sale by the defendant of goods as his
own when in truth they belonged to another, the court said
that this was no actual tort, nor anything ex delicto, but only
ex contra^ctu. The principle of these cases has uniformly been
adhered to in the English courts. In Oreen v. Oreenbank, 2
Marsh. 485, 4 Eng. Com. L. 875, where the plaintiff declared
in an action on the case that, having agreed to exchange
mares with the defendant, the latter, by falsely warranting his
mare to be sound, well knowing her to be unsound, etc., fialaely
and fraudulently deceived the plaintiff, etc., it was held that
infancy was a good plea in bar, on the ground that the assumfh
sit was clearly the foundation of the action, and that the deceit
was practiced in the course of the contract.
The case of Johnson v. Pie, supra, was recognized as of un-
questioned authority in the cases of Price v. Hewett, 8 Ex. 146,
18 Eng. L. & Eq. 522, decided in 1853; Liverpool Adelphi
Loan Association v. Fairhurst, 9 Ex. 422, 26 Eng. L. A
Eq. 393, decided in 1854; Wright v. Leonard, 11 Com. B.,
N. S., 103 Eng. Com. L. 258, decided in 1861; and Bartlett v.
Wells, 1 Best & S., 101 Eng. Com. L. 836, decided in 1862.
See also the case of De Roo v. Foster, 12 Com. B., N. S,, 104
Eng. Com. L. 272, decided in 1862. In the case of lAver*
pool Adelphi Loan Association v. Fairhurst, supra, Parke, B.,
says expressly *'that where the tort is incidental to the
contract, as the contract is altogether void, the fraud goes
for nothing." The rule of decision in the case of Johnson v.
Pie. supra, seems never to have been questioned, much less
overruled, in any English case, and it remains as good law in
Nov. 1865.] GiLsoN v. Spear. 661
the English courts at the present day. In this country, a]«
though there has not been the same uniformity in the decisions
of the courts, it has been recogqized and approved in many
cases: Brown v. Dunhamy 1 Boot, 272; Oeer v. Hovy, 1 Id. 179;
Wat V. WeUhy 6 Watts, 9; Brown v. McCune, 5 Sand. 228;
Homer v. Thwing^ 3 Pick. 492; Tucker v. Mordand^ 10 Pet. 69.
In the case of West v. Moore, 14 Vt. 447 [89 Am. Dec. 235], it
was expressly held, as in the English case of Oreen v. Oreetir
bankf supra, that infancy was a good bar to an action
founded upon a false and fraudulent warranty upon the sale
of a horse; and in the opinion delivered by Bennett, J., the
case of Johnson v. Pie, 1 Lev. 169, is expressly recognized as
being of controlling authority. The same principle was recog-
nized and reaffirmed in the case of Morrill v. Aden, 19 Vt. 505.
There are cases in this country in which this rule of decision
has been questioned or overruled, as in Word v. Vance, 1 Nott
& McC. 197 [9 Am. Dec. 683], which was an action on the case
for deceit in a warranty on an exchange of horses; and Peigne
V. StUclife, 4 McCord, 387 [17 Am. Dec. 756], which was an
action on the case for the embezzlement of goods intrusted to
an infant as a carrier; and Fitts v. Hall, 9 N. H. 441, in which
it was distinctly held that an infant is answerable for a fraudu-
lent representation and deceit which is not connected with the
subject-matter of the contract, but by which the other party
is induced to enter into one with him, if he afterwards avoids
the contract by reason of his infancy; as where he represents
himself to be of full age, and thereby induces a person to sell
him goods upon a credit; ard a distinction is suggested of this
nature that an infant is not liable in case for any fraudulent
affirmation that makes a part of the contract, as for a fraudu-
lent representation as to the quality of goods, but that for
fraudulent representations anterior or subsequent to the con-
tract, and not parcel of it, he is liable. This last case is en-
titled to great respect as being well considered, and was
referred to with approbation by Redfield, J., in Towne v. Wiley,
23 Vt. 355 [56 Am. Dec. 85], a case which stood upon ground
which did not require any such rule of decision. If the ques-
tion was to be reconsidered in the English courts, we should
readily agree that there is great cogency and force in the rea-
soning by which the decision in the case of Fitts v. Hall, supra,
is sustained, but the case itself is in direct opposition to the
whole current of the English and most of the American cases:
1 Am. Lead. Cas., 4th ed., 262. In Burley v. Russell, 10 N. H.
662 GiLSON 1?. Spear. [Vermont,
184 [34 Am. Dec. 146], it was admitted that such an affirma-
tion as in Fitts v. Hall, supra, would not estop an infant so as
to render him liable on the contract; and the same decision
was made in Merriam v. Cunningham, 11 Gush. 40.
This doctrine implies, as a logical sequence, that the avoid-
ance of a contract induced by such a representation is the
legal right of the infant, and not a fraud. The case of West v.
Moore, 14 Vt. 447 [39 Am. Dec. 235], which was decided in
this court nearly four years after the decision of the case of
Fitts V. Hall, supra, proceeds in this respect on the same
ground with Burley v. Russell, supra, and there is no apparent
difference in principle between a falsehood expressed in words
and the same falsehood properly inferred from actions, de-
meanor, or silence. Both are equally fraudulent, and the
damage resulting from the one would be as great as from the
other. The allegation of concealment would not, therefore,
distinguish this case from one in which the falsehood was dis-
tinctly affirmed in words; and the plaintiff's cause of action
in this case derives no additional strength from his offer to re-
turn the property. The refusal of the defendant to return the
price of the property was not a disaffirmance or avoidance of
the contract by him; and unless he had the money in his pos-
session, so that he could restore it to the plaintiff when the
horse was tendered back to him, no action of trover for it could
be sustained against him. This was held in the case of FittM
V. Hall, supra.
We think that the fair result of the American as well as of
the English cases is, that an infant is liable in an action ex
delicto for an actual and willful fraud only in cases in which
the form of action does not suppose that a contract has ex-
isted; but that where the gravamen of the fraud consists in a
transaction which really originated in contract, the plea of in-
fancy is a good defense. For simple deceit on a contract of
sale or exchange, there is no cause of action unless some dam-
age or injury results from it, and proof of damage could not
be made without referring to and proving the contract. An
action on the case for deceit on a sale is an affirmance by the
plaintiff of the contract of sale, and the liability of the defend-
ant in such an action could not be established without taking
notice of and proving the contract. It was held by this court,
in West v. Moore, supra, that the deceit or fraud, to charge an
infant, must be wholly tortious, and that if the matter arises
from contract, although infected with fraud, it cannot be
Nov. 1865.] GiLsoN v. Spear. 603
turned into a tort, to charge him by a change in the form of
action; and this principle fully sustains the defense of infancy
in this action. We think that there is no greater liability for de-
ceit resulting from the fraudulent concealment by an infant of
a material fact than there is for his false and fraudulent affir-
mation in respect to the same fact; and if the recognized rule
of law by which our judgment is controlled is wrong, it should
be changed by statute, as it has been changed in some other
states: Code of Iowa, 1851, p. 224, sec. 1489; Comp. Laws of
Kansas, 1862, p. 720, c. 146, sec. 3. It was well said by Gib-
son, C. J., in WUt V. WeUhy 6 Watts, 9, that " in contemplation
of law, an infiint of three years is not inferior in discretion to
one of twenty," and it is to be remembered that no general
principle of policy can be established without being the occa-
sion of hardship or injustice in particular cases.
Judgment of the county court for the defendant on demurrer
to the defendant's plea aflGirmed.
Infant is not Liabls in Trespass on the ease for false and frandnlent
warranty on the sale of a horse: West ▼. Moort^ 39 Am. Dec 236. In snch
case, an action of deceit will lie, and the defense of infancy will not availi
Word ▼. Konce, 9 Id. 683.
LIABILIT7 OF Infant fob hd Tobtb: BctM ▼. WiOmn^ 74 Am. Deo. 4ff7»
and note; see also note to Word v. VaiMt^ 9 Id. 683*
Infant, when Liablb fob hd Fbaud: Barham ▼. TurhemUet fSl Am. Deo.
782.
Thb PRiNOEPAii CA8B IS BB-BXPOBTBD in Ewell*8 Leading Omw on Infsiuj,
201, and a lengthy note appended thereto 20&-220.
CASES
Sff THB
COUKT OF APPEALS
aw
WEST VIROINIA.
Baltimobe and Ohio Bailboad v. Bathbonb.
[1 WK8T ViBomiA, 87.1
OoimoN Cabbixb scat Dqunish akd Rbstbict his Ck>icxoii-LAW Liabil-
ITT by special contract, and may by express stipulations also abeolT*
himself from all liability resulting from any and every degree of negli-
gence, however gross, if it fall short of misfeasance or fraud, provided
the terms and language of the contract are so clear and definite as to
leave no doubt that such was the understanding and agreement of the
parties.
pABTT Who Dsolabbs in Absumpsit, and seeks a recovery on a special con-
tract, is bound by it.
Where Bills of Ladino Ck>NST]TarB Special Oontracts, both parties are
bound thereby, and by all of the stipulations therein contained.
Where Party Declares in Assumpsit against a common carrier or bailee
for hire without regard to a special contract contained in the bill of lad-
ing, the latter is not admissible in evidence, not being applicable to any
of the counts in the declaration.
Ween Words "at the Owner's Risk," contained in a bill of lading, taken
in connection with other stipulations contained therein, constitute a spe-
cial contract between the owner and carrier to the effect that the latter
■hould.be liable for such loss only as results from ordinary neglect, he is
only bound to exercise such care and diligence as prudent men usually
bestow on their concerns, and the jury should be so instructed; to charge
otherwise is error
Verdict Set aside. New Trial Granted, when. — When a special oon-
tract contained in a bill of lading exists between an owner and the car-
rier for the transportation of goods at the owner's risk, which imposes
a different liability upon the carrier from that charged in the dedaiation,
and the jury return a verdict for the owner, it should be set a8ide,and a
new trial granted, for the variance.
Trespabs on the case in assumpsit by defendant in error to
recover of plaintiff in error the value of certain petroleum oU
664
Jan. 1865.] Baltimore etc. R. B. v. Bathbone. 665
alleged to have been lost by appellants, who engaged as com-
mon carriers to transport the same under a bill of lading, the
stipulations in which rendered it a special contract between
the owner and carrier. Other facts appear from the opinion.
Lee and Despard^ for the plaintiff in error.
JacksoUy for the defendant in error.
By Court, Berkshire, P. The questions arising in this case
involve the rights, duties, and responsibilities of common car-
riers, and are therefore of the highest consequence, not only
to that numerous and important class of persons, but also to
the public at large. Being, therefore, required as we are to
settle and declare the law of the state relating to a subject of
such general importance, it is to be regretted that so little aid
can be derived from the source to which we would naturally
turn for the most direct and satisfactory authority; I mean,
of course, the adjudications of the state of Virginia, which, it
will be found, reflect little or no light on these important and
practical questions. Being deprived of such aid, we are
obliged to resort elsewhere for the law of the subject, and
after careful and anxious consideration and diligent examina-
tion of the very numerous and somewhat conflicting authori-
ties, we have deduced such conclusions as we think are fully
sustained by the most numerous and reliable authorities on
the subject, which we proceed to state as concisely as prac-
ticable.
1. The court is of opinion that it is competent for a common
carrier to diminish and restrict his common-law liabilities by
special contract, and that he may, by express stipulations,
also absolve himself from all liability resulting from any and
every degree of negligence, however gross (if it fall short of
misfeasance or fraud), provided the terms and language of
the contract are so clear and definite as to leave no doubt
that such was the understanding and intention of the parties.
And further, that to allow a party, by declaring in assumpsit,
as in this case, to seek a recovery on a special contract, and
yet not be bound by it, would involve a plain legal absurdity:
Bee Angell on Common Carriers, sees. 10, 11, 12, 15, 220; Story
on Bailments, sec. 18; Jones on Bailments, sec. 22.
2. That the freight bill or bills of lading introduced by the
defendant in error constitute special contracts, and that both
parties are bound by the same, and all the stipulations therein
contained: Angell on Common Carriers, sec. 223.
666 Baltimore etc. R. R. t;. Rathbone. [W. Virginia,
3. That the defendant in error having declared in assumpni
against the plaintiff in error, as a common carrier or bailee
for hire, without regard to the special contracts, the same
were not applicable to any of the counts in the declaration,
and ought not to have been allowed to go to the jury in sup-
port of the same: Angell on Common Carriers, sec. 440.
4. And the court is further of opinion that the words " at
the owner's risk," contained in thu bills of lading or contracts,
taken in connection with the other stipulations therein con-
tained, were understood and intended by the parties in this
case to limit the plaintiff in error to such loss or damage only
as might result from ordinary neglect, by which is meant the
want of that care and diligence which prudent men usually
bestow on their own concerns, — which is defined in the books
to be ordinary neglect.
5. That although it is held in England in cases of contract
of shipment or transportation " at the owner's risk," in gen-
eral terms, puts the question of diligence and neglect out of
the case, and exonerates the carrier or bailee from all respon-
sibility whatever, according to the modern authorities cited
by the learned attorney for the plaintiff in error, yet we are
not disposed to extend the doctrine further than it was carried
by the supreme court of the United States in the case of New
Jersey Steam Navigation Company v. Merchants^ Bank^ 6 How.
344; and consider that case as settling and declaring the law
concerning common carriers and bailees for hire which should
prevail in this country.
6. The court is therefore of opinion that the circuit court
erred in holding, as it seems to have done, that the bills of
lading did not constitute special contracts between the parties,
and consequently erred also in refusing to give the first, sec-
ond, fifth, and sixth instructions asked for by the plaintiff in
error, and in giving in lieu thereof those which it did give.
7. That the court further erred in refusing to set aside the
verdict, and award a new trial, as the facts certified by the
court show that there was a special contract and agreement
between the parties for the transportation of the oil at the
plaintiff's risk, which imposed upon the defendant a different
liability from that charged in the declaration; and conse-
quently, the verdict should have been set aside for this vari-
ance, and this alone, and a new trial granted, and the plaintiff
allowed to amend his declaration, if he should ask leave to
do sa
July, 1865.] Newbrau v. Snider. 667
8. That as the ayerments in the declaration are such as
would render the defendant liable as a common carrier or
ordinary bailee for hire, in the absence of any special con-
tract, the circuit court did not err in overruling the demurrers
to the same.
Judgment reversed, and cause remanded to circuit court
for further proceedings.
PowsB OF CoMMOU Gabrisb TO Ldcct ms LiABmrrbyspeeiAl ooiitr»ot:
Judscn T. Western B. R, Corp,, 83 Am. Deo. 646, and note 651; Pemigyhxmia
JS. B. Co. y, Schwanenberger, 84 Id. 490, and note 493. Common carriers
may at least exonerate themselves from all liability that does not arise from
want of ordinary care and diligence on their part by express stipolation in
the contract to that effect: Baltimore and Ohio B, R. Co, ▼. ShulSy 3 W. Va.
669, citing the principal case.
Bill of Lading is Sfsoial CoNTJiAcr: SteeU ▼. Townaend, 79 Am. Dec.
49, and note 57; O^Brien ▼. OUekriai, 56 Id. 676, and note.
Whkbb thxrb is Material Variakos between the contract declared
upon and the one ofikred in evidence, the court will, on motion, exclude the
latter from the consideration of the jury: Jamee and MUchM ▼. Adams, 8
W. Va. 572, citing the principal case.
VxRDicr SxT Asms akd Nsw Trial Grantxd for admission of irrele-
vant and incompetent evidence: Note to WMdey t. Fcye, 66 Am. Dec 718-
720; KeM t. Lamon^ 74 Id. 233.
Nbwbbau V. Snideb.
ri WUT VlBOINIA, 168.1
On PAsmat oahhot Maintain Action at Law AOAnm Othir to re-
cover a som of money advanced by him to be invested, under an agree-
ment before witnesses that the profits arising from the investment, if
any, should be shajed equally by the partners, and in the absence of
proof that the money advanced was a loan, or that the partnership was
limited to any part of the adventure, or that it was limited to any par-
ticular time, or that it was dissolved. The remedy is by bill in equity
for an account on dissdntion, and decree for any balanoe found due*
Thb opinion contains the facts.
Hagans, for the plaintiff in error.
Keeky for the defendant in error.
By Court, EUbbison, J. The plaintiff in the court below
instituted his action of assumpsit to recover of the defendant
three hundred dollars, which he claimed he had loaned him,
and one hundred dollars, one half of the profits made with the
three hundred dollars by trading in sheep. Defendant pleaded
668 NewbiCa^u v. Snider. [W. Virginia,
m
fion assumpsit. The plaintiff submitted his evidence to sus-
tain the issue on his part. The defendant demurred to it, and
the plaintiff joined in the demurrer. Upon the demurrer the
county court gave judgment for the defendant. The circuit
court reversed the judgment of the county court, and the plain-
tiff in error alleges here that the circuit court erred in so
doing.
The demurrent admits the truth of the evidence of his ad-
versary, and all fair inferences to be drawn from it; but in
this case insists that the evidence shows there was a partner-
ship existing between the parties in reference to the matter in
controversy, and therefore the defendant in error could main-
tain no action at law against him.
That there was a partnership in regard to the matter in
controversy is admitted and asserted by both parties. Snider
gave Newbrau three hundred dollars to buy sheep with, and
told the witness Neely that he and Newbrau were partners;
that he was to have half the profits; and witness heard him at
different times talking about being in partnership in drinng
sheep. He also told Fox, another witness, that he was to have
half the profits. Newbrau told Fox they were partners; that
he was to have the money to trade in sheep, and Snider was
to have half the profits, if any.
There is no proof of any loan. If any, it can only be in-
ferred from what Snider said about interest on his money.
That was not sufficient to support the issue on his part.
The defendant in error has not shown, to the satisfaction of
the court, that this partnership was limited to any portion of
the adventure. He has not shown that it was limited to any
particular time. He has not shown that it was dissolved, nor
has he shown anything giving him the right to sue his partner
at law. The presumption, then, is, that the partnership was
existing when be commenced his action, and that it related to
the whole subject in controversy. Under such a state of facts,
it id well settled that this action cannot be maintained: 1
Ch. PI. 26, 27.
The remedy is by bill in equity for an account dissolution,
and decree for any balance found due him. The law appli-
cable to this case may be found in CoUyer on Partnership,
sees. 3, 16, 55, 107, 289, 774; and in Brown v. Higgivbothamj
5 Leigh, 583 [27 Am. Dec. 618].
This being the condition of the parties, it is immaterial to
notice the other objections to the judgment of the court belowi
July, 1865.] Newbrau t;. Snider. 669
for whatever be the opinions or rulings of this court as to then:
would be wholly useless to either of the parties.
The judgment of this court therefore is, that the judgment
of the circuit court be reversed and annulled; that the judg-
ment of the county court be affirmed; and that the plaintiff in
error recover his costs in the oircuit court and in this court
expended.
Judgment reversed.
Pabtvkrship, What CtofUfi'iTUTM! BrtmUiif t. BOSta^ 74 Am. Deo. 182,
and note 193, showing that a>iM^T»g in the profite is the umal test of a part-
nership, and that it may exists although the property employed in the enter-
prise belongs to one of the partners in serevalty. See also Laffan ▼. Naglee^
70 Id. 678, and note.
Ons Pabtrxb OAinioT Sus Oopabtrxb imtQ there has been a settlement^
and balaaoe stniok: Qroham t. HoU, 40 Am. Deo. 406^ and note; Bannqfe t>
r, 4ft Id. 278^ and note; Tkim^mm t. Sieamboai Martom, GO Id. 608L
OASES
IN THE
SUPREME COTJBT
WISCONSIN.
MiKOB t;. GmoAGo and Nobthwbstbbn B'y Go.
[19 WlBOOHsnr. 40.] ]
O-BATimOUB BaZLMXZIT OV BAOGAaB AVTEB LeABILITT OV GiBBiaE HAS
BEDT DnOHABOiD. — Where a paeeenger on a laOroad train, after ar-
riving at the end of his itmte, takes his be^^gage into his own ezdnatT*
poeoeesion and oontrol, but afterwards, for his own convenience, re*
delivers it to the baggage-master at the depot to be kept until sent for,
the railroad company is not liable for the baggage as a common carrier.
It is a grataitoas bailment^ and the company is liable only foi gross
negligence.
Thb facts are stated in the opinioxL Verdict and jadgmenl
fixr plaintiff, and defendant appealed.
Eno8 and HaUj for the appellant.
QUI and Barber^ for the respondents.
By Court, Golb, J. The proof clearly shows that this was
a case of gratuitous bailment, .where the company was only
bound to exercise slight diligence and was liable for gross
negligence.
It appears from the respondent's own testimony that she
was a passenger on the road of the appellant from Milton to
Watertown; that she arrived at the depot of the company at
Watertown about five o'clock in the morning of the 7th of
November, 1863, and had with her a valise or hand-trunk
which she had taken onto the cars with her and kept under
her control. She says: "After the arrival at the depot, Mrs.
Gay took the baggage, and went with it into the sitting-room;
a man came soon after and opened the baggage-room, and
670
Jan. 1865.] Minor v, Chicago etc. R'y Co. 671
commenced putting in baggage. I gave our baggage to him,
and asked if he could save it for us a tew hours till we would
send for it; he said yes, he would, it would be safe there, in
the baggage-room, and took it and put it in the baggage-room.
I saw him putting baggage in and locking the door."
It appears to us that this evidence shows, beyond all ques-
tion, a case of gratuitous bailment. The respondent had ar-
rived at the end of her route. Her fellow-passenger had taken
the valise from the cars into the sitting-room. The baggage
was under lier exclusive control. The liability of the com-
pany had ceased. It no longer had possession of the baggage,
or any control over it, until it was redelivered to the baggage-
master to be kept for a few hours in the baggage-room for the
mere convenience of the owner. The liability of the company
for the safe transportation of the baggage to the end of the
route, which had been fully discharged, would not again at-
tach, because, for her own accommodation and convenience,
she redelivered her valise to the agent of the company to be
placed in the baggage-room. Suppose the respondent bad not
been upon the train at all, but had happened at the depot, and
desired the baggage-master to take her valise and put it in the
baggage-room and keep it for her a few hours until she should
send for it, — would not the liability of the company have been
precisely the same it is now? It appears to us that it would.
The fact that the respondent had been a passenger on the road
cannot enlarge the liability of the company, because she had
arrived at her destination, had left the cars, and taken into
her exclusive possession and control her baggage, when she
gave it back to the agent tp be kept for her own convenience:
See Richards v. London^ B. & S. R, R. Co,, 7 Com. B. 839; Butcher
V. London & S, W. R. R. Co., 29 Eng. L. & Eq. 347; Cohen
V. Frosty 2 Duer, 335. The court instructed the jury that the
company was liable for the exercise of ordinary care; whereas,
if the bailment was gratuitous, as the proof clearly shows that
it was, the company was bound to a less degree of diligence
and a more limited responsibility: Story on Bailments, sees.
174 et seq.
The judgment of the circtut court is reversed, and a new
rial ordered.
ORATuiTOua Bailsb 18 Liable ^^ Qbobb lUiGLxasHCE: JeMna t.
MoUow, 60 Am. Dec. 154. ^^^
Citation of Principal Cas^ wfclc^® **^ ^' ^* ^^' ^* ^°y^ *^^ ^
615, a passenger for Chicago, wff v \ (r \)eliig unwell, obtsined a lay-ov«
672 Ward v. Henry. [Wisconsin,
ticket for his own accommodation. His baggage went on throngh to Chicago^
and was stored in the company's warehouse. The passenger did not arrirm
there nntil fire or six days afterwards. Daring that time the baggage was
destroyed by fire, without fault on the part of the oarrier; and it was held
that the carrier was not liable for the loss, aa it had never contracted to carry
the person as a passenger with a view to such extended liability for his bag-
gage. "Had the passenger been at Chicago," said the court, "and for hit
personal convenience had his baggage placed in the company'B warehouse^
this fact would reliere the carrier from all responsibility eoEoept for gros
oarelesanesB aa a gratnitons bailee," citing the principal caaa.
Waed v. Hsnby.
119 WiSOOSBIV, 78.J
State Coitbt hab JmusDionoir or Action or Tbupass Bbovobt ww
MoRTGAOXB OF Ghattsls in possession against a United States "»**«^*l
who levies upon them by virtue of an attachment from a federal coorft
against the mortgagor's property.
P&ofxrtt in Thikd Pxbson mat bs Shown, when. — Where a mort-
gagee of chattels brings trespass against an officer who levied on pari of
them while in plaintiff's possession by virtue of an attachment against
the mortgagor, and the defendant claims that enough property was lefC
in plaintiff's possession to satisfy the mortgage, plaintiff may show thafe
a part of the property left with him did not belong to the mortgagor, bnt
to a third person.
Judgment must be Rbvebsed whseb Instruciioh not properly applicaUs
to the evidence was given, and it appears that the jury were probably
misled by it» to the injury of the appellant.
CouBTS Take No Jxtdioial KonoE or OvtioiAL Gkabaoteb of Defutt
Marsh aTm
BVXDSNGE OF OtHOIZAL CHABACTER as DeFDTY MaB«FAT. 13 iNSUmOIENTp
in an action for the taking and conversion of goods, where defendant
justifies as deputy marshal, under process, without some further evidence
than the fact that he had served and returned papers in a federal court
as deputy marshal, and has been recognized by that court as such.
Action for the wrongful taking and conversion of personal
property of the alleged value of about $760. Defense, that
the goods were the property of one Chase, and were seized by
defendant, as deputy United States marshal, under an attach-
ment from the United States district court for Wisconsin, in
an action by one Adams against said Chase for an indebted-
ness of five hundred dollars. Chase had given plaintiff three
chattel mortgages on the goods in his store to secure $1,002.50
baned to Chase by plaintiff. Plaintiff had the goods in his
possession in Chase's store at the time of levy, and his mort-
gages had not been paid in full. After the levy, some goods
were still left in plaintiff's possession, and among them was
Jan. 1865.] Wabd v. Henby. 678
some wall-paper, which plaintiff offered to show was not the
property of the mortgagor, but that of a third person, as the
defendant had contended that enough property, after the levy,
was left in the mortgagee's possession to satisfy the mortgage
debt. The evidence as to the wall-paper was excluded. The
chattel mortgages from Chase to plaintiff, and the notes
secured by them, were put in evidence. Defendant put in
evidence the record in the attachment suit. Verdict and judg*
ment for the defendant, and the plaintiff appealed.
Cfeorge D, Waring^ for the appellant.
Joshua La Due^ for the respondent.
By Court, Colb, J. The question of jurisdiction raised by
the respondent has been ruled adversely to him in the case of
Booth v. Ableman, 18 Wis. 495.
The evidence offered in regard to the wall-paper was clearly
competent under the circumstances, and should have been ad-
mitted. One ground of defense relied on by the respondent,
who represents the attaching creditor, is, that at the time he
seized the goods in controversy upon the writ of attachment,
he left in the possession of the mortgagee merchandise which
was included in the chattel mortgages of a sufficient amount
to satisfy the mortgage debt. There was some wall-paper em-
braced in the mortgages, and in this stock of merchandise thus
left in possession of the appellant, and it was proposed to show
that somebody else besides the mortgagor owned or claimed to
own two thirds of it. Was not the evidence competent and
proper to show that the plaintiff had not received his mortgage
debt out of the goods left in his possession, and that the mort-
gagor did not own the entire interest which he attempted to
mortgage? It appears to us that it was competent evidence
for this purpose. For, as is well remarked on the brief of
counsel, the plaintiff had no lien upon goods included in the
mortgages which did not belong to Chase, the mortgagor, and
therefore could not make such goods available to pay the mort-
gage debt.
If the mortgages were not void as to creditors, then mani-
festly the rule of damages is the amount justly due upon them:
Ward V. Henry, 15 Wis. 239.
No serious effort is made to sustain the action of the court
in giving the second instruction asked by the defendant. As-
suming it to be unsound as ^w abstract proposition, still it is
claimed by the respondent's ^ .nsel that it could have had no
AM. Die Vol. Lxxxvm-a ^0^*^
674 Ward v. Hihbt. [Wisoonfiinf
weight with the jury in making up their verdict, because there
was no testimony before them to which the instruction could
possibly apply. The mere irrelevancy of instructions given by
the court to the jury is said in itself, independent of all other
considerations, not to be a sufficient ground to authorize a new
trial; but where injustice has been done by the verdict, and it
is probable the jary were misled by the instructions, then we
think a new trial should be granted: 3 Graham and Waterman
on New Trials, 792 et seq.; Cannon v. Alsbury, 1 A. K. Marsh.
76 [10 Am. Dec. 709]. It appears to us that the second in-
struction must have affected the verdict of the jury; otherwise
we are unable to understand how they could have arrived at
the result they did. As the case must go back for a new trial,
it would not be proper for us to express any decided opinion as
to the validity of the chattel mortgages, and the bona fideg of
the transactions between Chase and the appellant or his agent,
and we will therefore merely say upon the point that we are
not satisfied with the verdict, and can only account for it on
the supposition that the jury were misled by the irrelevant in-
struction given. In saying this, we do not assent to, neither do
we deny, the theoretical soundness of the instruction as a propo-
sition of law. But assuming it to be theoretically sound, it
confessedly had no application to the evidence, and we think
must have influenced the jury in their finding.
The plaintiff requested the court to charge the jury, in sub-
stance, that no evidence had been introduced showing the offi-
cial character of the defendant at tlie time he seized the goods
on the attachment; but the court held that the fact that it
appeared from the evidence that the defendant had served and
returned papers in the United States district court as deputy
marshal, and had been recognized by that court as such, wa»
sufficient proof of his official character. We do not under-
stand the rule to be that courts take judicial notice of the offi*
cial character of a deputy marshal: See 1 Greenl. Bv., sec. G;
Potter V. LutfieVy 3 Johns. 431; and we are inclined to the
opinion that the defendants should have produced some fur-
ther evidence than the fact that he had served papers in the
attachment suit to show that he was deputy marshal when he
seized the goods on the attachment. But it is not necessary
to dwell upon this point, as there must be a new trial for the
reasons already given.
The judgment of the circuit court is reversed, and a new
trial ordered.
Jan. 1865.] Jbnxinb v. Stsamxa. 676
DowNSB, J., having been of counsel, took no part ia the
decision of this case.
MoRTOAOzs's AND MosTGAOOs's Rwicmva Rights in Chattilb Mo&t-
GAOKD, and whether they may be attached or levied upon: TamnahiU ▼. TWtfe,
61 Am. Dec. 480, and note 491, showing whether property covered by a chat-
tel mortgage is liable to ezecatioa or attachment a^cainst the mortgagor.
l^RSSPABs OR Trovzr WILL Lis ix Stats Coxtbt aoainst Unitxd Statm
Mamhal OB BIS Dkfdtt for wrongfally seizing the property of one per-
son to satisfy the debt of another: Munaon y. Harroun^ 85 Am. Dec. 316;
Buck ▼. Cofbath, 82 Id. 91, note 94; Brutn v. Ogden, 20 Id. 593; bat snch
officer's possession of the property by virtue of federal process is an impreg-
nable defense to an action of replevin for the same property in a state court:
Booth V. Ableman, 84 Id. 711, note 713; Buck v. Colbaih, 82 Id. 91, note 94;
though in an earlier case it was held by a divided court that replevin would lie
in a state court against a United States marshal for goods wrongfuUy seised
under federal process: See note to Btiek v. ColbcUh, 82 Id. 94.
PROPBRTT IN Stranger is Plradabls in Rbplbvin: Manfi v. Pier, 26
Am. Dec. 131; and in trover: Btiek v. Aikin, 19 Id. 535; but not in trespass
de boma a&portaiiB: Toume v. Lee, 20 Id. 260; Squirt v. HoUmbed, 20 Id. 506;
Buck V. Aikin, 19 Id. 535.
Judicial Notice of Oiugbbs: See Slamghter v. Bamu, 13 Am. Deo. 190,
and extended note thereto 192.
The nuNGiPAL case was comd in fffOekbmm v. Ckkago ete. i?V 0<^» ^
Wis. 609, to the point that where inatmotioiis are confusing^ innnnsiitsat»
«RoneoQ% tfaaraby making it "nearly impoMJble for the Jozy to giva a ssls
▼ardiet^" it is a snffidant grauid to vsvorsa tha Judgmani.
Jenkins v. Stbanka.
119 Wiaoovanr, l».J
In Tbotmb, TREBPASi^ ajtd BiEtiMfta, Dekeniubt used hot Dbet Amyun
ov Value or allegation of damages. Th^ most be proved, thoo^ d»-
f andant puts in no answer. This was the pvaotioa before Ulb oode^ and
is so now.
PtlXNTDV IN REFLEVIH MAT 8bOW THAT VaLUE IB LeSB THAN ThAT AL-
LEGED IN CoMrLAiNT, WHEN. — A plaintiff in replevin who has obtained
possssiion of the property under the statute, and against whom the de-
fendant seeks judgment for a return of it^ or the value in oase a retm
oBonot be had, may show that the value is less than that alleged in the
complaint, although the answer does not deny such alleged value.
Xtidsnoe as to Kind or Qualitt or Lumber in Dofute is Admibbibui
POB Plaintov in Retlevin as a means of showing its value, and also
as bearing upon the question of ownership^ where there is a contest over
lumber from two diflEisrent mills, and tfaars is a great diffiarence in the
quality.
IiuuBKD Pabtt d Bntitled TO Bbplbvt Whole Body ov Mixed Lumber
where one willfully and indiscriminately intermixes his own lumber with
that of another person so that they cannot be di«fcif>gni^>ia<^^ uni where
the two lots so mixed are of different qualities or values.
676 Jenkinb v. Steanka. [Wisoonbin,
Action by Jenkins and others against Steanka to recover
possession of certain lumber, or the value thereof, alleged to
be four hundred dollars, with damages for the detention. The
plaintiffs obtained possession under the statute. Steanka was
master of a sloop in which the lumber was found when seized
by the sheriff, and claimed by his answer that the title to the
lumber was in one Wright, for whom he was carrying the same
on said sloop, subject to a lien for freight in favor of the owner
of said sloop; and that defendant, at the time of seizure, was
entitled to the possession as agent of said owner. The jury
found that the right of possession at the commencement of the
action was in defendant; that Wright owned the lumber; that
the value thereof was $360; and gave nominal damages.
Judgment for defendant accordingly, and plaintiff's sued out
their writ of error.
Earl P. Finehj for the plaintiff's in error.
H. B. Jdckaanj for the defendant in error.
By Court, Downbb, J. This is an action to recover forty
thousand feet of pine lumber, alleged in the complaint to be
wrongfully detained by the defendant, and of the value of four
hundred dollars. The value is not denied by the answer. At
the trial, the plaintiff's offered to prove the value less than four
hundred dollars; but the circuit court refused to permit the
evidence to be given, holding that the pleadings fixed and
were conclusive as to the amount of the value. In this the
court below erred. In actions of trover, trespass, or replevin
before the code, it was not necessary for the defendant to deny
the amount of the value or the allegation of damages, and in
this respect the code has not altered the practice. They must
be proved, even though the defendant puts in no answer: Con*
no8s V. Meir, 2 E. D. Smith, 314; McKenzie v. Farrell^ 4 Bosw.
202.
Questions were put to different witnesses by the plaintiffs
during the progress of the trial as to what the kind or quality
of the lumber in dispute was. The court below refused to
permit these questions to be answered. It seems to us the
answers should have been received. They were competent as
bearing on the question of the value of the lumber; also for
another purpose. Testimony was given tending to prove that
some part of the lumber in dispute was manufactured by one
Wright, in his mill at Fremont, out of logs belonging to the
Jan. 1865.] Jbmxins v. Stbanka. 677
plaintifTB. and cut on streams above Fremont, and that there
was a great difference in the quality of lumber sawed out of
logs cut at or near Fremont and that cut out of the plain-
tiffs' logs, the latter being much superior in quality to the
former. The defendants' witnesses, or some of them, testified
that this lumber was made out of logs cut at Fremont. After
this testimony was in, the plaintiffs renewed their inquiry as
to the quality of the lumber in dispute, and the court again
ruled the evidence inadmissible. It seems to us that it was
clearly admissible as tending to prove whether the lumber in
dispate was manufactured out of the plaintiffs' or Wright's
logs.
The circuit court also erred in instructing the jury that *' if
they found for the plaintiffs, they could only recover the amount
of lumber which they have proved to have been wrongfully
taken by Wright, although it may have been commingled
with the lumber of Wright wrongfully." The law, we think,
is, that if Wright willfully or indiscriminately intermixed the
lumber sawed from the logs of the plaintiffs with his own
lumber, so that it could not be distinguished, and the lumber
so mixed was of different qualities or value, then the plain-
tiffs would be entitled to hold the whole: WUlard v. Rice^ 11
Met. 493 [45 Am. Dec. 226]; 2 Kent's Com., 3d ed., 864; Ryder
V. Hathaway, 21 Pick. 298.
We do not deem it necessary to notice other rulings assigned
for error of the court below, excluding testimony, as the same
questions may not arise upon a new trial.
Judgment of the court b**low reversed, and a new trial or-
dered.
Ths pRiNon»AL GASB WAB ciTKD in each of the foUowing caseo, and to the
point stated: Where, upon defendant's failure to answer in an action for
the breach of a covenant of seisin, an assessment of damages is necessary, the.
defendant has a right to appear at such assessment and to offer evidence per-
tinent to the question of damages or in mitigation thereof. ** An answer in
snch a case certainly would not and should not put in issue the damages'*:
Bartell f. Bmnnadaif, 57 Wis. 3. Whore defendant has willfully or india-
criminately intermixed plaintiff's goods with his own, so that they cannot be
distinguished, and the goods intermixed are of different qualities or Talnea,
thtt plaintiff is entitled to the whole: Booi v. Bannema, 22 Id. 643; samt
prinoiple: Zieflbe ▼. Morgan, 60 Id. 666.
678 State v. Cole. [Wiaooiunii,
Statb V. Cole.
[19 wnoovnv, m.]
Arm OAimoT Taawm DonmAmr's Omurr KsrowiADQi^ nr PBonoumnr
lOB UiTiBiiro AMD PASBDra FoBOKD Bahk Bzll^ hj the mtrodaofcioa
of testiiiumy ahowing that dflf ondint had paaaed cAliar ooiiiitef£ait btlla
of tho aamo «i^n^yini^i>tiiTB and on tho aamo bank aa tlio hni laid In tlia
indiotment^ witfaont prodnoing aooh biUa in ooort if witiiin iiie reach of
tho praeeeation, or in oaae they are in defandanf a poaeeeriop, withoat
giYuig him notioe to prodnoe them.
Iv PttosKirnovioB PAflsivoOouvTiBniTBiiidii It nUHEBO uhdek
WiBCX>ii8Dr Statdti^ to Show Liqal Bznimai or Bahk by which
the bill alleged to be ooontarfoxt pnzporta to hare been ianied* or ita
anthority to lane anoh biOa, bat it ia anfBmimt to ahow ita aetnal eziBt-
enoe by proring that it baa a pUoe of bnaiDeaBp that it baa biUa iaraed
and in general cironlationy eto.: Bee B^ 8. Wia., 18S8^ aea 6^ o. 168.
Indiotmsht for uttering and paasing a fiorged bank bill,
purporting to baye been issued by the Bank of Rutland, in
pajrment to one George Eastman. A motion to quash was
denied, and after the jury had been impaneled, and sworn,
the defendant was put to plead, and pleaded not guilty. The
oourt instructed the jury, among other things, that the leggl
existence of the Bank of Rutland need not be proved; that
its actual existence was sufficient* and might be proved by
such facts as that it had an office and place of business; that
it had bills issued and in general circulation; that it bought
and sold exchange, discounted paper, received deposits, and
did such other acts as banking-houses were in the habit of
doing; and that 'Hhere must be proof of this character, in the
absence of positive testimony, sufficient to satisfy you beyond
any reasonable doubt of the actual existence of tiie Bank of
Rutland." Verdict, guilty. Defendant moved to set aside
the verdict, and for a new trial, on the grounds that the jury
was chosen and sworn before the defendant was required to
plead or did plead to the indictment; that there was no evi-
dence to warrant the verdict; and that improper evidence had
been admitted and erroneous instructions given, etc Motion
denied, and judgment rendered upon the verdict. Other fiusti
are stated in the opinion.
WhUUmore and Weisbrod^ for the defendant
Wvnfidd Smithy attamey^eneraly for the state.
By Court, Cole, J. For the purpose of showing the defend«
ant's guilty knowledge, witnesses were introduced on the part
of the state to prove that he had passed other counterfeit billa
Jan. 1866.] State v. Cole. 67^
of the same denomination and on the same bank as the coun-
terfeit bill laid in the indictment. This evidence was ob-
jected to, on the ground that the bills about which the witnesses
were interrogated were not produced in court. Aud it is in-
sisted that, in order to render this testimony in regard to pass-
ing other bills admissible, those bills should have been
produced in court if within the reach of the prosecution, or
notice must have been given the defendant to produce them,
and he have failed to do so after it appeared they wern in his
possession. We are inclined to the opinion that this position
is sound, and states the correct rule of evidence on this point.
It is true, we have not found many adjudged cases bearing
directly upon this question; but those which we have found
seem to favor this rule, and it is certainly in harmony with
the general analogies of the law. In the case of People v. La-
grUUf 1 Wheeler's Grim. Gas. 412, the court say that evidence
of passing other forged bills of the same description, or show-
ing the same in the possession of the prisoner, and notice, may
be given in evidence to prove the ^cienter^ if such bills be pro-
duced in court. It is admitted that this is an exception to the
general rule, which extends to almost every case, and which
ties the party down in his proof to the notes laid in the indict-
ment. See the following authorities, which have a bearing
upon this point more or less direct: Rex v. Ball, 1 Gamp. 324;
Rex V. MUlard, Russ. & R. G. G. 245; Stalker v. StaU, 9 Gonn.
341; Roscoe's Grim. Ev. 67; 1 Phil. Ev., Edwards's ed., 768,
note 208; 3 Greenl. Ev., sec. 111. The attorney-general referred
us to the case of Reed v. State, 15 Ohio, 217, as laying down
a different rule; but from the cautious manner in which the
court expresses its opinion upon the question, it may be doubt-
ful whether the case is good authority to the point to which it
was cited. For the court say: ''If the note was in court, or
without great inconvenience and delay could be produced, in
our opinion it should not be dispensed with. It would then
afford to the accused the opportunity to contradict the proof
as to the character of the note; and it should be produced on
the trial if within the jurisdiction of the court and the reach
of the prosecution." It seems to us that this fully recognizes
and approves of the rule that to admit proof that the defend-
ant had passed other cou^i^^feit bills, such bills themselves
should be produced or Uiq^^ y^gence accounted for, as in other
cases where secondary evj ^ ^ iB admissible. An examina-
tion and inspection <>f sn^^^p^ ^tv court would more satisfac-
680 State v. Cole. [Wisconsin,
torily show their character, and might possibly rebut the
presumption of guilty knowledge.
An objection was taken to the testimony of Hughes, Brown,
and Paige, who swore in regard to the character of certain
bills passed by the defendant, because they were not experts,
and did not profess to have any personal knowledge of the
handwriting of the officers of the Bank of Rutland. They
were persons who had been engaged in mercantile business for
several years, and claimed to be judges of the character of
bank notes in circulation. We have considered somewhat the
objection taken to the admission of their testimony, but have
formed no decided opinion upon the point, and therefore do
not express any.
The other exceptions in the case we think must be over-
ruled as untenable, unless it be an exception taken to the first
instruction, which is not very clearly expressed, and which
might have possibly confused the jury. But still a new trial
is awarded upon the point first decided.
The judgment of the circuit court is reversed, and a new
trial awarded.
iNDicmurr >ob CBmnf ally Uttxrtno Oouvtbbixit Bask Kotb, ahd
What mat be F&ovxd: State v. Brmon, 70 Am. Beo. 168; ComnumiDealth y.
Price, 71 Id. 668; Beaa ▼. State, 22 Id. 767; StaU v. Spalding, 48 Id. 168;
State V. Van Hauten, 4 Id. 407; especially as to gnilty knowledge: State ▼.
Smith, 5 Id. 132; McCartney ▼. State, 66 Id. 510, and note 612; State r. Wit-
Uams, 46 Id. 741, note 744; note to Ingram r. State, 84 Id. 787.
EXISTKNGB OF BANK, PROOF OF, ON InDICIMENT FOR PASSDrO OOUNnCR-
FBIT Bank Bills: See note to State ▼. Broion, 70 Am. Deo. 176; States,
Newland, 71 Id. 444.
Thb PBnraPAL case was sah), in Davie ▼. State, 38 Wis. 489, to be no
authority, after verdict, for ordering a plea to be entered for the defendant
in a criminal case without his consent, where he has not pleaded or been
called upon to do so, and then to render judgment on the' verdict. In com-
menting upon the principal case, tiie court said: " It appears in the report of
that case that ' after the jury had been impaneled and sworn, the defendant
was put to plead, and pleaded not guilty.' In a head-note it is said that this
was not error. Bat so far as the report shows, the point was not argued or
decided. It became of no importance after the court awarded a new trial on
other grounds. We do not decide the precise point here.*' But the ooort
ruled as above stated on the point involved.
Juil. 1865.] SCHMITZ V. SCBJOTZ. 681
SOHMITZ V. SOHMITZ.
[19 WuOOVini, 907.]
DkID8 abb to B1 ISTEKFSXnSD AOOOBDZKG TO TBXIB SUBJBOT-KATIKB^
AND Such Oorvtbuotidh Oivbn to Tbbm tm wOl oany oa% tho inten-
tion of the paartiM^ wlien it it legally poanble to do m ooiuutaiitly with
^c langiuigo of tho inatmiiMntik
Whxbe Languaox of Dbbd 18 Vaoux axi> Gbhxiul^ OB Oobtains Sokx
Latent AMBiomrr, Pabol Eyidxrox n Admibbiblb of any eztrinsie
circxiinstanoaB tandiitg to show definitely what things were intended by
the parties; not that aaeh evideooe enlarges or diminishes the estate
granted or premiseo oonveyed, but it identifies the subject-matter on
which the deed operates.
Iir AonoH to Cobbbot avd FoBiOLoa Mosioaox» It is kot Kbobsbabt
TO Cobbbot Dbbobiptioh before foreclosing, where the premises em-
braced in the mortgage will be the same after the correction as before it
No EbBOB 18 CkXMMITTXD BET OOUBT IN Ck>BBBOTnf O MOBTOAGB BBPOBB
VoaaajOBUBEf where the judgment of foredosnre shoold have been the
same without snch oorreotion, and the judgment will not be reyersed.
JniWMXNT WILL HOT BB RXVXBBBD BBOAUSB JUDGX BELOW OmTTBD TO
Statb his Ck)KCLi7SiOR8 of law, as required by statute, if the facts found
sustain the judgment^ and it appears that the appellants cannot be in-
jured by sndk omission.
Abbwbb does hot Set uf CkwJBTUrin.ATM where it alleges that the con-
tract in a complaint upon a note for money borrowed was usurious, and
that a certain sum, less than the principal, has been "paid on the note,**
if the law makes a note given on a usurious contract of loan valid to
secure the repayment of the principal sum loaned, and no more. No
statements of such an answer can be taken as true without proof.
Action to reform and foreclose a mortgage on the west half
of lot 2, block 128, in the city of Madison, executed to the
plaintiff by Jacob Smith and his wife, Agnes Smith, to secure
notes for six hundred dollars, with interest at twelve per cent,
made by said Jacob to the plaintiff, and alleged to have been
for a loan of six hundred dollars. The correction prayed for,
and the grounds of such prayer, appear in the opinion. One
Lohr, who claimed to own one half of said lot 2, was made de-
fendant. Payments upon principal and interest were admitted
in the complaint to the amount of $186, but a failure to make
further payments was therein averred. The answer of Jacob
and Agnes Smith denied the alleged mistake in the descrip-
tion of the premises; and averred a payment of ninety-five
dollars, "to apply upon the notes and mortgage," in addition
to the amount admitted in the complaint, and that the con-
tract was usurious; and claimed that it was void, except as to
the sum actually loaned, which it alleged to be only $875.
The court found the amount due as claimed in the complaint.
682 ScHMiTz V. ScHMiTz. [Wiscoiisin,
and also found the facts as to the mistake in the description
of the premises as they are set forth in the opinion infra.
There was no separate statement of the judge's conclusions of
law. The defendants Jacob and Agnes Smith excepted to the
findings; but there was no bill of exceptions bringing up the
evidence. They also excepted to and appealed from the judg-
ment, which provided for correcting the mortgage in accord-
ance with the prayer of the complaint, and for a foreclosure
and sale of the premises to make the amount so found due.
Welch and Lamb^ for the appellants.
Sidney FootSj for the respondent.
By Court, Downer, J. -This is an action brought to fore-
close a mortgage. The respondent in his complaint alleges
that there was a mistake in the description of the premises
mortgaged; that the description should have been "the south-
west half of lot 2, block 128," instead of ''the west half";
and he seeks to have the mortgage in this respect corrected,
and then foreclosed. The judgment was in favor of the re-
spondent.
The appellants insist that the mortgage could not be cor-
rected, because it was executed by a married woman. The
cases cited seem to sustain this position, so far as the correc-
tion affects her interest. It may be, however, that there is a
difference between our statute and those under which the de-
cisions he refers to were made. Without passing upon this
point, wc proceed to inquire whether it' was necessary to cor-
rect the mortgage. The words " west " and " west half," as
applied to lots and parcels of land, have, both in ordinary
conversation and in deeds, sometimes a very precise and ex-
act meaning, and sometimes they are used very loosely and
indefinitely. The lot in question is four rods wide and eight
rods long, the ends fronting on streets, the sides not; and it
was divided between the two defendants owning it in com-
mon so as to give to each half-lot two rods wide and eight
rods long, extending from street to street. At the time the
mortgage was executed, this division had 1)een agreed upon,
and each party was in possession of his half, and had fenced
it and put on it valuable improvements, so that he had a
right in a court of equity to compel the division according to
the parol agreement, which, before the commencement of this
action, was carried into full effect by deeds of partition. To
draw an exact north and south line through this lot, and give
Jan. 1865.] Schmitz v. Schmitz. 683
to the deed a construction by which it should embrace that
portion of the lot lying west of that Une, would be to make
the grantors by such deed not only convey land a part of
which they did not own, but a piece of land in such a shape
as reasonable men do not often divide such lots into. We
think that the proof before the court below, or rather the
facts as found by the court, showed that the words ''west
half" in the mortgage were used loosely and indefinitely.
Deeds are to be interpreted according to their subject-matter,
and such construction given to them as will carry out the
intention of the parties, when it is legally possible to do so
consistently with the language of the instruments. If the
language of the instrument is vague and general, or there is
a latent ambiguity, parol evidence is admissible of any ex-
trinsic circumstances tending to show definitely what things
were intended by the parties; not that such evidence enlarges
or diminishes the estate granted or premises conveyed, but it
identifies the subject-matter on which the deed operates: HaU
V. DavU, 36 N. H. 573; Waterman v. Johnson^ 13 Pick. 264.
it seems to us that the evidence in this case clearly identified
the premises embraced in the mortgage as being the same be-
fore as after the correction; and if so, the circuit court did
not err to the injury of the appellants in making the correc-
lion. Their counsel, as part of his argument, exhibited a
$)lat of this lot, and informed us that a line running exactly
iiorth and south would pass through the lot diagonally, or
nearly so. We presume in this he was right. It follows that
if the premises described in the mortgage lie west of this
exactly north and south line, one fourth of the half-lot not
owned by the mortgagors was included, and one fourth of
the half they did own left out, and each of these fourths
would be in the shape of a triangle with one very acute angle.
These fie^cts convince us more fully that the word " west " was
•used in the deed with more or less of indefiniteness, and the
very evidence which proved this also identified the land con-
veyed.
It is clear, on a mere inspection of the answer, that it did
4iot contain a counterclaim; and of course, none of its state-
tments could be taken as true without proof.
The decision of the court below states the facts found, but
not the conclusions of law. We are asked to reverse the
Judgment on this account. The judgment is correct accord-
ing to the facts found; and if we should reverse it for this
684 Bunker v. Rand. [Wisconsin^
error, we oould do no less than direct the circuit court, after
adding to its finding the conclusions of law, to enter again
the same judgment. This would be a useless formality. The
court below ought to have complied with the statute, but the
failure to do so has not injured the appellants, and we do
not think in this case is ground for reversal.
The judgment of the circuit court is affirmed, with costs.
DeKD should BB 80 COKSTBUXD AS TO CaB&T OUT IllTENTIOM OW PAXTZB,.
IF PoflSiBLB: Pike ▼. Monroe, 58- Am. Dec. 751; Budd v. Brooke, 43 Id. 321;
Frost y. SpaukUng, 31 Id. 160.
Pabol Evn)BiicB is Admissiblb to Ezflazn Latent AMBiauimB »
Wbittbn Instbumbnts: See note to Ckmton v. Madigan, 82 Am. Deo. 668:
MarehaU ▼. Baney, £9 Id. 02; or to show purpose for which a deed was given:
Note to CoIUm t. TUhu'a Adm'r, 68 Id. 401. MThere the langnage of a con-
tract is ambigaous, an effort should be made to effectuate the intention of the
parties: Benjamin v. MeConneU, 46 Id. 474, note 480.
CORBBCnON OB MlBTAKB IN MOBTOAGB BEBOBB FOBBOLOSCrBB^ OR IV AC-
TION TO FoBBCLOSB: See note to BartleU y. Judd, 78 Am. Deo. 137; Amm t.
New Jersey F. Co,, 72 Id. 38S.
Thb lanouaob of thb PBIN0I7AL GASB, the sahetaooe of which is embodied
in the two first sections of eyUabuB, aitpra, was quoted in JenUns v. Shaar^,
27 Wis. 476. The principal case was summarized in Petesch t. Hambaeh, 48
Id. 454, an action to reform a mortgage of a married man's land, ezeontod
by him and his wife, and taken by the mortgagee as security for moneys
loaned to the husband, with the understanding and belief of all the partiss
that it was a mortgage of the homestead, and which was found to be of other
lands only; and the court held that the instrument could not be reformed aa
against the wife after the husband's death, where the homestead had de-
scended or been devised to her, and that it would not have been reformed
even as against the husband in his lifetime, since by the statute it would
have been void without the wife's signature to a mortgj^ which encumbered
the real homestead, which in this case she did not da The principal case
was cited in Begg v. Begg, 56 Id. 638, to the point that in determining which
of two persons of the same name is the grantee named in a deed, mneh lati-
tude of inquiry into the facts and dronmstanoes must neoesaanly be allowed,
especially where one of such persons is dead.
BuNKEB V. Band.
[19 Wisconsin, 258.1
EXBCunoN Salb ob Land is not Voib because the sheriff noglected ta
comply with the law requiring the land to be sold in separate parcels,
but oidy voidable at the instance of the party aggrieved.
If Pbopbrtt is Capablb ob being Sold in Lots ob Pabobls, and the
judgment debtor has been prejudiced by the departure of the sheriff fma.
the requirements of the statute, his remedy is to apply within a
able time to have the sale set aside on that ground.
Jan. 1865.] Bunker v. Rand. 685
PooflMBiow or Lavd nr Ezboutiov DxriNnAicT ax Tdcb ov Jxtdqwuxt
AMi> Baim may bo ihown bj proof, where bis enewer doei not admit the
BziQunoir Dnmuirr'B PoBanazoH of Land Sold at Tun when Judo-
MBHT WAS BjDffDiuo), «8 Well «8 »t the time of lale, is soffioient prima
fadle eyidence of title to aathorise the creditor to seQ on ezecntion.
Whbsx Ddxnbaut in Jusgmbiit m nr PoesBSiON at Tm of Lxvt and
SAXJ^ he can make no defenae in ejeetment againat the pnrcbaaer at the
aberiff 'a sale; but each porehaaer aoqnixea a right at leaat to the poiaea-
aion of the debtor.
Where Jcdoicxnt, ab uton Fah^ttbe to Answer, was Entered om First
Bat of Term, and Stoned bt Glsrk, It wsm be PRSSiTifED that it
waa entered while the ooort waa in aeBBum, and that dne proof waa made
of the non-appearance of the defendant* thoogh such proof doea not ap-
pear of record.
Ejectment for 160 acres of land in Walworth Coutity.
From plaintiff's evidence, it appeared that 120 acres of said
land, being three quarters of the southwest quarter of a
section, was entered and purchased of the United States in
1839 by one Oibbs; that the other twenty acres were entered
in 1839 by one Clark; and that a tax deed of the one-hun-
dred-and-twenty-acre tract was executed to one Barker in
1843, and recorded in the same year. Barker's title, by mesne
conveyances, vested in the defendant in 1853. In 1859, one
Bemis recovered a judgment against said defendant in the
circuit court of said county for $194.72, entered September,
1859, and signed by the clerk. This judgment recited that
the summons, with a copy of the complaint in that action,
had been duly served on the defendant on July 28, 1859, and
that no copy of an answer or demurrer to the complaint had
been served on plaintiff's attorney, etc. The judgment rolL
did not contain any affidavit of the non-appearance of the de-
fendant, or that no copy of an answer or demurrer had been
served. The plaintiff also read in evidence the execution
issued on such judgment, with proof of publication of notice
of sale, and the return of the sheriff indorsed on the execu-
tion, showing a levy upon the defendant's interest in the
premises here in controversy, and a sale of the same to the
plaintiff, Bunker, for the sum of $219.44. Plaintiff also offered
in evidence the sheriff's certificate of said sale; to which de-
fendant objected because it did not state that the several par-
cels of land therein described were first offered separately for
sale. Objection sustained. The sheriff's deed executed upon
said sale was also offered in evidence, but was ruled out for
the same reason as the certificate. Under instructions from
686 Bunker v. Rand. [Wisooofiiiiy.
the couriy a verdiet was returned for the defendant; judgment,
was rendered accordingly, and plaintiff appealed. Other Cacts
are stated in the opinion.
N. 8. Murphy J for the appellant
Edson Kellogg and E. Wakdeyy for the respondent
By Court, Cole, J. There is certainly much force in the
position that the statute which requires that lots or parcels of
land sold upon execution shall be separately exposed for sale
had no application to the sale made in the case of Bemi9 v.
Band. It appears that the lands sold on the execution in
that case lay in one body, and had been used and occupied
as a farm for many years. And as a general rule, it may be
far more advantageous for the debtor to have property thus
situated sold in one body rather than divide it up into par-
cels. However this may be, still it is very clear that the
sale was not void because the sheriff neglected to comply with
the law requiring the land to be sold in parcels, but only void-
able at the instance of the party aggrieved: CwMiinghamy.
Camdy^ 17 N. Y. 276. li the property was capable of being
sold in lots or parcels, and the judgment debtor was prejudiced
by the departure of the sheriff from the requirements of the
statute, his remedy was to apply within a reasonable time and
have the sale set aside on that ground. It is proper to add
that it was proposed to show by the oflScer who made the sale
that he repeatedly offered the lands in separate parcels of
forty acres, but could get no bidders, because the whole farm
was largely encumbered by judgments and mortgages, and
therefore he was compelled to sell the whole (axm together.
This evidence was ruled out, but upon what ground is not very
obvious, nor is it essential to inquire at this time. It is suffi-
cient to say that the sale as made worked no fraud or wrong
to the judgment debtor, and least of all was it void.
It was also objected that the plaintiff did not show either
title or possession of the land sold in the defendant upon
which the execution sale could operate. The allegation in the
complaint is, in substance, that the defendant was, on the day
of the rendition of the judgment in the Bemis case, lawfully
seised as of an estate of inheritance in feensimple, and in poe*
session of the lands sold. The defendant, in his answer, de-
nies any knowledge or information sufficient to form -a belief
as to each and every allegation of the complaint, except that
Jan. 1865.] Bunksb v. Rahb. 687
he has been in poeBesrion for a long time, and is noW in posses-
sion. It is very questionable whether this answer controverts
the facts of title and possession in the defendant on the 19th
of September, 1859, and whether it does not fully admit those
facts. But farther than this, the plaintiff offered to prove the
length of time the defendant had been in possession of the
land prior to the date of the sheriff's deed, but this evidence
was objected to, and ruled out as incompetent. If there was
any doubt upon the point whether the answer fairly adinittc<f
the £Ekct that the defendant was in possession of the land sold
at the time of the rendition of the judgment in the Bemis case,
it was surely competent to establish that fact by proof on the
trial. The soundness of this view is too plain to require any
argument to sustain it. K the defendant was in possession of
the land sold at the time the judgment was rendered, as well
as at the time of sale, this was sufficient prima facie evidence
of title to authorize the creditor to sell on execution. And the
cases cited by the respondent's counsel are full to the point
that where the defendant in a judgment is in possession at
the time of levy and sale, he can make no defense agunst the
purchaser at the sheriff's sale, but such purchaser acquires a
right at least to the possession of the debtor. Loele v. GoUmatij
4 Mon. 315, McConnell v. Brovm, 5 Id. 478, and Addison v.
Crow, 5 Dana, 271, are to the same effect, and we suppose
there is no doubt about the soundness of this principle of law.
We are therefore relieved from the necessity of considering the
validity of the tax deed made and executed to Barker in 1843;
for as between these parties, when it appears that the defend-
ant was in possession at thd time of the rendition of the judg-
ment and sale, this is sufficient evidence of title prima facie to
warrant a recovery in this action.
It is argued that the judgment in the case of Bemia v.
Rand was void, because it was entered by the clerk without
application to the court, and there is no proof in the judg-
ment roll of the non-appearance of the defendant. We know
not what there is in the record which authorizes the assump-
tion that the judgment was entered by the clerk without
the action of the court. The fall term of the circuit court for
Walworth County commenced by law (chapter 84, Laws of
1858; R. S., p. 645) on the third Monday of September,
which would be the nineteenth day of the month, in 1859, the
day the judgment in this case was entered. This being the
case, the presumption is, that the judgment was entered while
688 Bunker v. Rand. [Wisconrfn,
the coart was in Bession, and that due proof was made of the
non-appearance of the defendant.
Some objections were taken to the form of the execntioa
and sheriff's certificates of sale, but we do not think them of
Bu£Bcient importance to require special attention.
The judgment of the circuit court is reversed, and a new
trial ordered.
Statutobt DiBBcnoNS TO Sell Land on ExsccmoN in Pabckls, when
it ooiuista of distinct lots or traots, are merely direictory, and not peramptoiy :
Qrimoold v. Staughton, 84 Am. Dec. 409, and note 413; 8mUh v. Rmdallt 65
Id. 476.
ExsouTiON Sals ot Distinct Tracts of Realty rn Massb, VALiDnT
OF: See cases cited in note to Oriewold v. SiougfUon, 84 Am. Dec 409. Ajb to
when entire parcels cannot be divided, see McLean County Bank v, Phfgg, 83
Id. 224.
Salbs kn Massb by Shbriff OF DrariNcr Pabokls of Real Bbtats
MAT BE Set asedb on Motion, or by a bill in chancery: Redor v. HarU, 41
Am. Dec. 650; note to McLean County Bank v. Flagg, 83 Id. 227; Oriawold r.
StoughUm, 84 Id. 409.
Execution Debtor's Interest in Land, of Which He is in Possession,
MAT BE Sold under Execution, and he cannot deny the purchaser's title,
or show title in another: SwUter v. Shiles, 44 Am. Dec. 723.
Defenses Available to Defendant in Execution whe.>i Sued in
EnoncENT bt Pubgsaser thereunder: See extended note on tie aabject
to Simmons v. Brown, 84 Am. Dec. 570-573.
Judgment Records are Presumed to have been Made affer Most
Careful Deliberation: Montgomery v. Murphy y 81 Am. Dec. 652.
The principal case was cited in each of the following anthorities, and
to the point stated: An execution sale of land in disregard of the law which
requires it to be offered in separate parcels is not void, but only voidable at
the instance of the party aggrieved. The remedy is to apply within a rea-
sonable time and have the sale set aside on that ground: Haymond v. Pauli,
21 Wis. 534. Though a valid tax deed conveys the title in fee-simple, yet
the former owner, being still in possession after such a deed is issued and re-
corded, has such a valid and subsisting interest in the land as may be sold on
execution: tiw^ft v. Agne$, 33 Id. 240; and see Hyde v. Choipman, 33 Id. 399.
A judgment entered in term time by the clerk without any order or adjudi-
cation by the court must be presumed to bs that of the court, and is valid
though not noted in the minute-book of the term: McKinley v. W^ter, 87
la. 284.
Jan. 1866.] State v. Wihn. 689
Statb bx eel. White v. Winn.
[19 WxaooNBiN, m]
KiJWTiOH or Psopm Tix Dxid mat bb Ooxfillxd bt Wbit of Mam-
DAMU8. Where a tax deed, fstelly defective in form, hae been iaeaed
to the owner of a Talid oertifioate of a sale of lands for taxes, he may,
thoogh he has never been in aotual potBeesion of the land, compel the
clerk of the oonnty board of snpervisora, by mandcnmu, to execute to him
a proper deed.
0iO88iDir OB Wobsb '*ab the Fact ib," in Tax Dbbd, whbbb thbir In-
8X&TT0N 19 Rbqitibxd BT Statutb, IS Fatal Dbfbot; and the deed
will not give the vendee a title on which he can recover in an action of
ejectment, or transfer to him the conrtmctive possession of vacant lands.
These words are in the nature of a oertificato on the part of the officer
who executes the deed that he has examined the records and finds the
facts to be as stated in the deed.
CUCRX OF Ck>nNTT BOABD OF SUPBBVXSORS OANNOT BlFUSB TO EZBOUTX
Pbopbb Tax Deed to owner of a valid certificate of sale of lands for
taxes, and to whom a deed fatally defective in form has been issued, on
the ground that the certificates of sale of said land, which were issued to
the county, had no other proof of assignment than an indorsement of the
name and official title of the person who was clerk at the time of such
alleged assignment, where such officer was authorized by the supervisors
to assign such certificates.
Valid Assionxent in Name of Countt mat be Written over Nakb
AND Official Title of Clerk of county board of supervisors, where
certificates of sale of land for taxes have been issued to the county as
purchaser, where the purchaser has been authorized by law to assign the
same by writing his name in blank on the back thereof, and where such
clerk, having authority to sell and assign the certificates, has assigned the
same by writing his name and official title in Uank on the back thereof.
Clbbk of Countt Board of SupXRViaoRB cannot BanrcBB to Execute
Proper Tax Deed to owner of a vaUd certificate of sale of lands for
taxes, and to whom a deed fatally defective in form has been issued, on
the ground that such certificate is defective in omitting the words ''ac-
cording to the facta," or that, after being assigned in blank, it was trans-
ferred to a town or city which had no power to pnrohase or sell such
certificates, and was received by the plaintiff from such town or city. It
is doubtful whether these objections would be good if taken by one who
had a right to insist upon them; but the clerk cannot raise them, espe-
cially after he has received and canceled the certificate.
Clxbx of Board of SuPERviaoBfl^ uton Presentation to Him of Holdbb's
Certificate of Purchase of lands sold for taxes, shall execute in the
name of his county, as clerk, a deed. If the certificate has been assigned,
the assignment is to be presented with it His duty is simply to receive
the certificate and assignment, and make the deed to the holder. He is
not to inquire through whose hands the certificate has passed. But the
only asaignmente which he is required to take any notice of are such as
are on the back of or attached to the certificate.
QuncLADi Deed from Purchaser of Land Sold at Tax Sale is not
Such Assignment of the certificate of purchase as to anthorise the derk
of the board of supervisors, under the Wisconsin etatate, to iarae a deed
from the county to the grantee in such quitelaim deed.
AM. Dae. Vol. LXXXVm-44
690 Statk v. Wnm. [Wiaconsiiu
Application for a ma/ndamua directing the clerk of the
board of Bupervisors of Pierce County to issue to the relators
tax deeds of certain lands. The facts are stated in the
opinion.
White and Jay^ pro te.
A, H, Youngj for the respondent.
By Court, Downeb, J. Deeds were executed to the relators
by the clerk of the county beard of supervisors of Pierce
County, on tax certificates held ty them, in which deeds the
words " as the fact is " were omitted. The relators, on dis-
covering the mistake, demanded of th^ clerk new tax deeds
in due form of law. He declined to execute them. Can he
be compelled to do it by writ of mandamus? In the case of
Lain v. Cooib, 15 Wis. 446, this court decided that the omission
of the words ^' as the fact is " in a tax deed was a fatal defect;
and in the case of Wakeley v. Mohrj 18 Id. 321, the court speak
of a tax deed without those words as void. This court has
held that such defective deeds do not give the vendee a title
on which he can recover in an action of ejectment,, or transfer
to him the constructive possession of vacant lands. Bui
whether they may not be sufficient to give the vendee in
actual possession of the lands claiming title under such de-
fective or void deed such color of title as to enable him to
avail himself of ^\e defense of the three or ten year statute of
limitations, in case he has been in possession a suflScient length
of time, is undecided. In this case there is no proof that the
vendees have ever been in actual possession of the lands. The
deeds they have received must be considered valueless and
void. We see no reason why the clerk should not be required
to issue a new deed or deeds to the relators on those tax cer-
tificates deposited with him by them.
It is said that the certificates arc not legally assigned, —
that they were issued to the county, and the following on the
back of each is all the assignment there is: *' Oliver Gibbe,
Jr., County Clerk." The stipulation of the parties admits as
a fact that at the time of the indorsement Gibbs was clerk of
the board of supervisors of the county, and authorized by an
order of the board to sell and assign the certificates. Section
54, chapter 22, Laws of 1859, authorizes the purchaser to
assign the certificates by writing his name in blank on the
back thereof The certificates in question were issued to the
county as purchaser, and the only question is, whether the cor-
Jftn. 1866.] State v. Wihn . 891
porate name of the ooonty should have been written in blank
on each of the certificateB, instead of " Oliver GHibbe, Jr.,
County Clerk." We are of opinion that a valid assignment
in the name of the county could be written over the name of
Gibbs.
Again, it is insisted that the form of the certificates is de-
fective in lecving out the words " according to the facts "; also
that the relators are not entitled to deeds because the certifi-
cates or some of them, assigned in blank, were transferred to
a town or city which had not the power to purchase or sell
them, and from such town or city the relators purchased
them. We doubt whether the objections, or either of them,
would be valid if raised by one who had a right to insist on
them. But the clerk is not in a position to raise these objec-
tions. His duty is to issue a deed to any one who shall present
the certificates to him duly assigned. He is not to inquire
through whose hands they have passed. And especially is he
precluded from raising such objections after he has received
and canceled the certificates.
The foregoing applies only to the certificates on which de-
fective tax deeds were made to the relators themselves. We
are of the opinion the respondent was right in refusing to
execute a deed to the relators of the lands embraced in the
deed to Miller. Miller had conveyed these lands by quitclaim
deed to the relators, and they claim that this deed was an
assignment to them of the tax certificates on which the void
or defective deed to Miller was issued. The statute provides
that the clerk of the board of supervisors, on the presentation
to him of the certificate by the holder, shall execute in the
name of his county as clerk a deed. If the certificate has
been assigned, the assignment is to be presented with it. His
duty is simply to receive the certificate and assignment, and
make the deed to the holder. The quitclaim deed, if it be an
assignment at all of the certificates, is not such an assignment
as the statute contemplates. Section 14 of chapter 22, the act
above cited, provides that the certificate may be transferred
by the purchaser by a written assignment indorsed upon or
attached to the certificate; and section 54 authorizes an assign-
ment by the purchaser writing his name in blank on the back
of the certificate. It follows that the only assignment which
the clerk of the board of supervisors is required to take any
notice of are such as are on the back of or attached to the
certificates
692 BEimETT t*. Child. [Wisoonsa,
So much of the prayer of the relators as asks the writ of
mandamus oommanding the respondent to execute a tax deed
on the west half of section 17, township 24, ranfl;e 15, is de-
nied.
The writ is awarded parsoant to the prayer of the relators,
except as modified by the above denial.
Tbb PBoroiFAL CJum was oitid in eteh of the following antlioritiaBy and
to tho point ftated: A "pBtty owniqg a tax oortifioato on which he hae taken
oat a def eotive deed has a right to a new deed, althoii|^ he has giren a qnit-
obim deed of the premieeB: Lain ▼. ShepardmMt 23 Wia. 228; and where the
tax certifloate has been a—igned, the new deed ahoold ran to the aeaigneo of
saeh tax lale certificate^ and not to a penon holding a qoxtolaim deed of the
pramiaea from each aeaignee: Bakm ▼. North, 82 Id. 806; hnt nnder a law
which proridee thai a tax nle oertificate "may be awign^ml by the porchaeer
1^ writing hia name in bUnk on the back thereof and by the ooonty (reea
orer or ooonty dark in like manner, with hia official oharaoter added, or any
penon'a intereet therein maybe transferred by a written aangnoisnt indoreed
open or attached to the aame^* the ooon^ clerk hae no aathori^ to iaane n
tax deed to the Booond aaiignim of soch tax certificate^ whcee aaaignnMnt is
not indoEied thereon or attached thereto: BmUk ▼. Todd, 66 Id. 402. It is
the imperatire duty of a coonfy deriL to iasoe an order open the ooantj
treaanrer for a daim andited and allowed by the board of sapenriaora. Hia
duty is porely ndniaterial: BiaUr, Bkktar, 87 Id. 277. So a town tieaaarer la
boond to ezeoate a wanant aa reoeiTed. He cannot coneot errara therein.
His office, too, ia parely minialerial: BtM ▼. (yMaUe^, 89 Id. 833. The
principal caae waa criticised in BUmUy, S^ipeninnqf Town qf BeloU, 20 Id. 84,
as to the practice of the ooart in issuing writs of mandate. The ooort'a at-
tention waa there called to the role that "the peremptory writ most follow
the altematiTe moiicfdmaM^ and there cannot be Judgment for the relator for
part and for the respondent for the other part "; and they admitted that if
their attention had been called to that rule in the principal oase^ they would
probably not haye granted the writ in that oase^ aa they did not there intend
to establish any new rule of praotioe. Tkl esrtifiieatei maybe tosdoaed
altar the iasoiMe of a Toid tax deed: i>Mto T. Cbe% 69 Id. 4a.
Bbnkbtt t;. Child.
[19 wnoonm, mblJ
LAsm GsaimD on OovyarxD «o Honano ajkd Wm amm Bmu> »r
Trbi ab TEKAxm nr Bmnsms mb at OoMMom hkwi B. 8. Wis.
1868p c 83, aea 46; and section 8; chapter IXS^ Id., does not apply te
estates of this kind.
HuiBAifD HIS EHTnui Ck>inrBOL otsr Lahimi Gba>tb> on OunrsnD io
HiMimiF ABTD Wm during his own lif e^ and may ooBfey or mortgage
them for that period.
HusBJon) OAHMOT AuMKATE Lakm Qbaxtbd OR OowTiTSD «o Himrjr
AMD Win, or any part of them, ao as to giro title aftsr hie dsaUk aa
against the wife annriTing him.
Jan. 1865.] Bennett v. Child. 698
Hubband's Interest, or at Least hib Life Estate, m LAHDb Granted
OR CoNYErED TO HiMSELF ANB WiFE, ezcept Buch part as may be ex-
empt as a homestead, is sobject to sale oa execution for his debt, and
the purchaser will acquire a right to the use of such intorcst during the
life of the husband.
Skxriff'.s Certificate of Sale of Land on Execution will not bb
Wholly Annulled, and the issuance of any dc3d thereon restrained* at
the suit of the judgment debtor, on the ground that a part of the prem-
ises are adjudged to have been exempt as homestead. The purchaser
may, if he chooees, have a deed for the remainder.
JuDOicBNT IN Favor of "C, G., & Co." cannot be Collaterally Im-
peached ON Ground that Ko Such Party is Known to the law.
Such objection should be made in the trial court, and before the rendi-
tion of judgment therein.
Action by Bennett and wife to restrain the sheriff from
deeding a certain eighty-acre tract of land to Child, Gould,
A Co., who had purchased it at execution sale against Bennett;
also to set aside the sale. On May 1, 1854, plaintiffs, as hus-
band and wife, purchased the premises jointly, took a deed
running to them both, entered jointly into possession, and
continued to jointly occupy the premises as a homestead.
Nearly one half of the purchase-money was paid out of the
separate estate of the wife. The premises were sold by the
sheriff, May 23, 1860, to Child, Gould, & Co., on an execution
in their favor against Bennett for a debt contracted subse-
quently to such joint purchase and occupancy. Previous to
the sale, Bennett notified the sheriff of the condition of the
title to said premises. Upon these facts, the court held that
the plaintiffs owned the premises as tenants by the entirety;
that the same were not chargeable with Bennett's debt to
Child, Gould, & Co.; that the plaintiffs were entitled to a
homestead in the premises exempt from execution; and that
they were entitled to judgment setting aside the sale, annulling
the certificate, and restraining further proceedings thereon.
Bennett and Cassoday^ for the appellants.
Charles O. WUUamSj for the respondents.
By Court, Downeb, J. The first question presented for con-
sideration in this case is, Can the creditors of Bennett seize
and sell on execution against him land conveyed to him and
his wife? This court held in Ketchum v. Wahworthy 5 Wis. 95
[68 Am. Dec. 49], that where an estate is granted to husband
and wife they take by entireties, and not by moieties; and that
the husband could not alienate or encumber the estate so as
to prevent the wife, after his death, from taking the whole as
694 Bennett v. Child. [Wisoonbin,
survivor. It is said by the learned judge who delivered the
opinion in that case, that ''there can be no partition during
coverture, for this would imply a separate interest in each;
and for the same reason, neither can alien without the consent
of the other any portion Or interest therein." We are inclined
to think this last remark is not entirely correct. All the
authorities agree that the husband during coverture cannot
alienate the whole or any part of the estate so as to give title
after his death as against the wife surviving him. But we do
not understand that at common law he could not convey his
life interest or estate therein. In the case of Barber v. Harris^
15 Wend. 615, the court say of such an estate: ''During the
life of the husband, he undoubtedly has the absolute control of
the estate of the wife, and can convey or mortgage it for that
period. By marriage he acquires, during coverture, the usu-
fruct of all her real estate which she has in fee-simple, fee-tail,
or for life." K the husband can convey or mortgage the land,
and give to his grantee the use of the entire real estate during
his life, we see no good reason why his creditors cannot seize
it on execution; for it is clear that under our laws a life estate
is subject to be seized and sold on execution. If this interest
of the husband is not subject to execution, then he has the
right to use, sell, convey, or mortgage real estate of great value
over and above his homestead, which his creditors cannot
reach.
In the case of Jackson v. McOonneU^ 19 Wend. 178, Cowen,
J., says of such an estate: "The husband's creditors cannot
take his interest in execution." He cites to this point Rogers
V. Orider, 1 Dana, 242, and Roanes v. Archer^ 4 Leigh, 550.
We have carefully examined these cases, and it appears to us
that they entirely fail to sustain the position. We are of
opinion that lands granted or conveyed to husband and wife
are held by them as at common law: R. S., c. 83, sec. 45. It
18 clear to us that section 3, chapter 95, was not intended to
apply to estates of this kind. We must therefore hold that
the husband's interest, at least his life estate, is -subject to
execution, except such part as may be exempt as a homestead.
Eighty acres were sold under the execution; forty of it is
•claimed as a homestead. What would be the effect upon the
sale if this claim is established? Should the sheriff's certificate
be set aside entirely, or the purchasers be ordered to release
the homestead from the sale, and be permittted, if they choose,
to take a deed of that part of the premises thus released? U
Jan. 1865.] Bennett v. Child. 696
eighty acres had been sold on the execution, and the defendant
therein had title to only one half thereof, the purchaser (in
case he purchase believing the title to the whole good in Uie
execution defendant, and applied to the court without un-
reasonable delay) might have had the sale vacated; or, if he
preferred, he could take a sheriff's deed which would give him
title to only one half of what he purchased. We see no reason
why the purchasers at the execution sale in this case might
not, even if the respondents should prevail as to the homestead,
if they so elected, receive a deed of the part not so exempt.
It is for the purchasers, not the defendant in the execution, to
say whether the sale shall be vacated in case the purchasers
could acquire no title to a part of the land sold. It may be
that the part to which they get title is worth all they pay.
The complaint was evidently not framed with a view to relief
on the ground of the homestead exemption; and if the right
of such exemption is to be litigated, the complaint should be
amended. We therefore do not pass upon that question. We
hold that the execution sale was not void or voidable at the
suit of the plaintiffs as to the land not exempt as a homestead;
that the land, or so much of it as was not exempt as a home-
stead, was subject to execution; and that the purchasers at
the execution sale acquired such title to the premises not so
exempt as would give them the use of them during the life of
the husband. If the land was purchased entirely with the
money of the husband, or if he should survive the wife, the
purchasers might perhaps acquire a larger estate. It is not
necessary for us now to decide whether they would or not.
The position that Childs, Gould, & Co. is not a party known
to the law, and that the judgment in their favor is void, is
untenable. If the defendant in that suit desired to take ad-
vantage of that defect or irregularity, he should have appeared
before the justice and made his objection before judgment.
The judgment of the circuit court is reversed, with costs,
and the cause remanded for further proceedings.
HUSBAKD HAS RiOHT OF POSSISSIOII AND COHTBOL OF ESTATB QjUJXTKD
TO Husband and Wm, and may demiBe, alien, or mortgage his interest
during hia own life, bnt not bo as to prejudice her right to the whole in case
she survives him: Wyekif ▼. Oardner, 45 Am. Dec. 388; Ketdium v. Wala-
wmih, 68 Id. 49, and note 65, citing the principal case; Needham ▼. Bnnuon,
44 Id. 45; note to Btard v. Knox, 63 Id. 128.
Ck>NVEYANCB TO HuSBAND AMD WlFX VXSTS m ThXM EsTATX BT En-
ciRxma^ AND NOT BT MoxBim: KeUhum v. Walwnrth, 68 Am. Dec. 49»
696 IfABTTN V. GaBIiIH. [WiSOODSUU
and note 55; Brcwnaon ▼. BvU, 42 Id. 517; Den v. Hardekbergh, 18 Id. 377-
389, in note discossing tenancy by entireties; Needham r, Brrmton, 44 Id.
45; FairchUd v. OhatUlleux, 44 Id. 117; Oibnn v. Zimmmmom^ 51 Id. I68L
Bot in Ohio, if a devise be made to husband and wife, they take as ten-
ants in common: Sergeant v. Steinberger, 15 Id. 553.
Ck>NySTANCK TO HUSBAKD AND WiFB, EFFECT OF, AT COMMON LaWi
Oibeon ▼. Zimmerman, 51 Am. Dec. 168.
SxTitFLUS Land hat bb Sold on Execution whers Homestead Goteb»
MoBX Pbopertt than Law Allows: McDonald v. Badger^ 83 Am Dec.
123.
OZBCUHSTANCES UNDER WhICH JUDGMENT MAY BE COLLATERALLT Im*
YBACBSD: Sidenaparlxr v. SkUtiaparker, 83 Am. Dec. 527; Fhrneranv. Leomard^
83 Id. 665.
The fhincipal case was cited in each of the following authorities, and
to the point stated: The owner of a legal snhdivision of lainl, precisely eqnal
to the statutory measure of a homestead right, whoso dwelling-house is situ*
ate upon such subdivision, and who has mailu no different selection, will be
held to have selected that subdivision for hu liomcstcatl, although he also
owns adjoining lands from which he might have nclccted hLs homestead in
part: Kent v. Laslei/, 48 Wis. 263. The jirincipal case was criticised and
disapproved in Chumdler v. Cheney^ 37 lud. 400, 404, whero it was held thai
the husband's mortgage upon an estate conveyed by deed to himself and wife^
and executed by him alone, was void. The principal case was miscited in
CcanpbeU v. Babbitia, 63 Wis. 282. The reference should probably have been
to Mclndoe v. Baaselton, 19 Id. 567; S. C, poet, p. 701, in the note to wliicli
will be found the point.
. Martin v. Cablin.
ri9 Wisconsin, 4M.1
Iir SUBTBTS, COUBSES, DISTANCES, AND QUANTITT MUST ALWAT8 YlBLD to »
eall for a natural object, such as a river, or to monnmenta and mark*
erected and adopted by the original surveyor as indicating the lines mn
by him.
ObIQINAL MoNUMBNn, WHEN ASOBRTAINBD^ ARE SaTISFAOIOBT ANB OON-
GLUSIVE EviDENGB o£ the lines originally run, which are the true boun-
daries of the tract surveyed, whether they correspond with the plat and
field-notes of the survey, or not^
Monuments are Facts; while Fbld-notib and Plats indicating ooursea^
distances, and quantities are but descriptions which aerve to assist in
ascertaining those facts.
KWABT.TSHKD MONUMENTS AND MaBKED TbKBS NOT ONLY SbBVB TO ShOW
with Certaintt the lines of their own tracta, but they are also resorted
to, in connection with the field-notes and other evidence, to fix the origi-
nal location of a monument or line which baa been lost or obliterated by
time, accident^ or design.
IBrabushbd Monumbnts, and Lihbs AoTUAtLT BuH, wnioh oontrol in all
oases of diapfoted boondaries, cannot be overridden to NMh a natuttl
object.
Jan. 18(15.1 Mabtin v. Cabldt. 697
WhKRB LzNXS OV SuBTST GAH BB RuV IBOK WlLL-iaOIBTAnnBD AVD ESCAB-
USHBD MoNcmirTSy they are to control and fforem a deecriptioii deline-
ated on a plat.
QuABTBE-sBonoN LiHB PbbyaiIi8 otbb Mbahdbeed Ijnbs OF Strbam ut
Casb of Mibtakb, whbn. — If the goyemment sorrey of a fractional lot
eontaina a mistake^ bo that either a quarter-section line or the meandered
line of a stream, both of which are called for by the warvey as constitnt-
iQg the boundary lines between two fraotionsy must be abandoned, the
yiartfir section line shoold bo adbared to as the more certain call.
The facts are stated in the opinion.
E. HurOmtj for the appellant.
D. W. SmaUy for the respondent
By Coart, Cole, J. This action was brought to recover
.19.82 acres of land admitted to be in possession of the defend-
ant below, who is the appellant. The land is claimed as be-
ing a part of lot No. 1 in section 23 in township 8, range 16,
in Jefferson County. The section was included in the grant
which was made by the general government to the territory
for the purpose of aiding in the construction of the Rock River
Canal. It is a fractional section, made so by the Rock River,
which flows through it from the northeast to the southwest.
The entire section, with the exception of three forties in the
northwest quarter, is divided into fractional lots, which are
numbered from 1 to 9. According to the original plat and
Burvey of the section, lot 1 was bounded on the north and east
by the section line, on the south by the east and west quarter-
Bection line, and on the west by Rock River. By the same
plat and survey, lot 2 was bounded on the east by the section
line, on the north by the east and west quarter line and the
river, and on the west by the river likewise. The southern
boundary of this lot is immaterial to this controversy. It ap-
pears that there was a mistake in the original survey and
meandering of Rock River, and that it is farther north and
west than the government survey had located it on the north-
east fractional quarter, so that there is more land in that frac-
tional quarter than the government survey calls for. The
plaintiff derives title to lot 1 from John S. Rockwell, who pur-
chased it, with other lands, of the territory in 1848. In the
patent the lands conveyed to him are described as 'Mhe south-
west quarter of the northwest quarter, and fractions 1 and 9 in
section 23 of township 8, range 16, containing 132.17 acres
according to the official plat of the survey of the said lands
returned to the general land-office of the United States by the
898 Martin v. Cabuh. [Wiflooxudn,
sorveyor-general." The defendant, along with other evidence,
offered a patent from the territory of Wisconsin to Harvey
Burchard, dated the 4th of November, 1846, for lots 2 acid 3
in section 23, township 8, range 16, containing 97.40 acres ac«
cording to the official plat of the survey of the United States,
with the obvious purpose of proving title to lot 2 as derived
from Borchard; but this piece of evidence was objected to and
ruled out, on the ground that it was irrelevant and immaterial.
It was an admitted fact in the case that the government
meandered line and survey of Rock River was incorrect; that
according to a correct survey, the bed of that river was farther
north and west than the government survey had located it,
so as to leave a strip of land in the northeast fractional quar-
ter south of that river and north of the east and west quarter-
section line; and the whole controversy turns upon the point
whether this strip belongs to lot 1 or lot 2. The plaintiff in-
sists that the defendant cannot legally claim any land north
of the quarter line' as a part of lot 2, because by the system
of government surveys that line is the true boundary between
lot 1 on the north and lot 2 on the south; and that lot 1 must
be held to embrace all the land in that fractional quarter-sec-
tion north of the quarter line and south of the river. The
defendant insists that no such controlling effect should be
given to the quarter-section line in determining the boundary
of lot 2; that the meandered lines of Rock River run by the
government survey must be regarded as well; and since it
appears that by the government plat and survey lot 2 ex-
tended on the north to Rock River, this natural object more
certainly designates the northern boundary of the lot, and
other calls and lines must be subordinate to it. Besides, lot 2
will fall short just about the amount of land in dispute, unless
it extends across the quarter-section line to the river on the
north, while lot 1 will overrun that amount. And the only
question in the case which we deem worthy of any particular
notice, or which has given us any difficulty, is, whether the
quarter-section line must not be considered as the boundary
of lot 2 on the north, disregarding the delineation of Rock
River on the government plat and survey, or whether this line
must 3rield to this natural object as located on that plat. The
question is one certainly not free from difficulty; but a ma-
jority of the court are inclined to the opinion that under the
system of government surveys the quarter-section line must
control and fix the boundary of lot 2 on the north. In an-
Jan. 1865.] Mabtin v. Cablin. 699
nouncing this reenlt, we are not unmindfol of the rule in sur-
veys that the law loves certainty in calls, and that a call for
a natural object, such as a river, will control courses, distances,
and quantity. But this rule, when applied to the admitted
facts of this case, supports rather than militates against the
view we have taken. For by the system adopted by the gov-
ernment for the surveys of the public lands, they are first
surveyed into townships six miles square, the lines of which
are required to correspond with the cardinal points. At the
comers of the townships appropriate monuments are required
to be erected. These townships are subsequently subdivided
into thirty-six sections by running parallel lines each way;
and at the comers where these lines intersect monuments are
erected, and also intermediate monuments equidistant between
the section comers: Brightl/s Dig. Laws U. S., pp. 446, 447,
479, 481; Lester's Land Laws and Decisions, p. 722. The ex-
temal lines of the sections are actually run, and the section and
quarter posts or monuments are actually fixed and established.
Adopting, then, the language of the court as used in McClin-
toch V. Bogera, 11 111. 279, 296, we say: ''The original monu-
ments, when ascertained, afibrd the most satisfactory, and we
may say conclusive, evidence of the lines originally run, which
are the true boundaries of the tract surveyed, whether they
correspond with the plat and field-notes of the survey, or not.
All agree that courses, distances, and quantities must always
yield to the monuments and marks erected and adopted by
the original surveyor as indicating the lines run by him.
These monuments are facts; the field-notes and plats indicat-
ing courses, distances, and quantities are but descriptions
which serve to assist in ascertaining those facts. Established
monuments and marked trees not only serve to show with
certainty the lines of their own tracts, but they are also re-
sorted to, in connection with the field-notes and other evidence,
to fix the original location of a monument or line which has
been lost or obliterated by time, accident, or design." The
section and quarter posts on section 23 are readily ascertained.
There is no difficulty whatever in running the east and west
quarter line where the law requires it to be run. If the sec-
tion were not a fractional one, and had been subdivided into
quarter and quarter-quarter sections, this line would be re-
curred to as the true division line between the north and south
half of the section. Why should we not resort to these estab-
lished monuments to ascertain the division line between lots 1
700 Martin v. Cablin. [Wiflconsln,
and 2 in this case? The answer ifl, because on the plat Rocic
River is delineated as the bonndary of lot 2 on the north. Bui
it is admitted that the original survey or meandering of Rock
River is erroneous. The meandered lines can only be run
from the field-notes of the original survey, and when traced
according to those notes they do not mark the present locatiox^
of the river. But because Rock River was designated or
marked on the official plat as bounding lot 2 on the north, it
is claimed that it must be taken as the true boundary, disre-
garding the east and west quarter line and the quarter posts
actually established and found. Suppose the line between lots
1 and 2 were a section or township line, and there had been
the same mistake in locating Rock River on the plat, —
should those lines also be disregarded in determining the
northern boundary of lot 2? Gould you override the estab*
lished monuments and lines actually run, which control in all
cases of disputed boundaries, to reach a natural object? If
such a rule were adopted, it is easy to perceive that it would
result in the greatest confusion and disorder. We see no sound
reason for saying that the case supposed is distinguishable
from the one before us. For if the quarter-section line is to
be crossed to reach a natural object, why not a township oi
section line? What well-grounded distinction exists between
them? They are all lines actually run by the surveyor, or
which may be run from ascertained monuments established
by him. And there is as much reason for saying that the lot
crosses the town line and extends to some natural object as
that it should cross the quarter-section line for a like purpose.
The majority therefore think that where the lines of the sur-
vey can be run from well-ascertained and established monu-
ments, they are to control and govern a description delineated
on a plat. To adopt any other rule would annul the authority
of the public surveys, and open the door to litigation and diffi*
culty. And as lot 1 embraces the land in controversy, the
judgment must be affirmed.
The defendant did not ofTer to show that he had been in
possession under a claim of title for twenty years, so as ts
bring him within the protection of the statute.
For these reasons, the judgment must be affirmed.
DowNSR, J., dissented.
If OHUMsmn OB KAXinuL OBjwm Cobtsol CJouboh^ Dbiamh^ Qvab*
nrtf AH2> DiacBiPTiDH: Skkardaon ▼. Ohiekerkig^ 77 Am. Deo. 769, note 772^
June, 1865.] McIndoe v. Hazelton. 701
oumeroas cues cited in note to ffeaton v. Hodges, 90 Id. 737; Smith v. Slo-
-cambf 69 Id. 274; BUeif ▼. Orijin, 60 Id. 728; note to Morton ▼. Jadtsoti, 40 Id.
110; Fetder v. BoMteti, 37 Id. 545; Newman ▼. Foster, 84 Id. 98; Frost y.
^^auiding, 31 Id. 150, note 154; McCoy ▼. CfaOoway, 17 Id. 591. Courses and
-distances are bat circamstances* and most yield to monuments, etc. : Smith
^. Slocomh, supra.
Marked Trzxs on Limb Actually Rum asd Mabkxd Comtrol Link
Which Coctbses, Distangbs, ob Dssgbiftion Indiqats: See note to Cftorgs
V. Thomas, 67 Am. Dec. 620. But ooozses and distanowi may be used as
^ruides to find natural objects: Doe ex dem. Totem ▼. Paiue, 15 Id. 607.
Map AMD OxsTmoATS or Surtxt ab Bvidxnob: Newmam v. Foeter^ 34
Am. Dec. 98.
. Rules Govebmimo whibb DsaoBiPTiON of Land is LfooNsiBnMT or
Uncertain: See, on the subject^ extended note to HecUon ▼. Hodgee, 90 Am.
Dec. 734-742.
The fbinoipal case was gitxd in each of the following authorities, and
to the point stated: Where lines can be run from well-asoertained and estab-
lished monuments, fixed by government surveys, they will control in the di-
vision of lands: Neffy. Paddock, 26 Wis. 651; and wherever land is conveyed
4bccordiQg to the government description, and the monuments established by
the original survejrs can be found, these are controlling: McEvoy v. Loyd, 31
Id. 145. Ckmrses, distances, quantities, and measurements are controlled by
. uatural or fixed land-marks; but plats referred to in a deed of land are an
essential part of the description, and should be recognized as far as possible.
The binding force of the plat was recognized in the principal case, and the
-court gave efiect to it so far as it was possible to do so: Shufeldt v. SpceMkkg^
'37 Id. 668, where the facts of the prinoipal case are neatly and dearly sum*
MoIndob V. Hazblton.
119 WlSOOVSIIl, M7.J
JUDOMSNT BT OonnSSION AOADTST "MgIhDOE AND ShUTBB, PaBTNBBS,"
ETC., IV Ibbboulab, 18 NOT VoiD, where the parties constituting such
firm have executed a warrant of attorney, containing the full names of
the judgment debtors, and authorizing such confession of judgment,
and where they have in their answer to the action released all errors
that might intervene in entering up judgment, or in issuing execution in
the cause.
Dbvbot im Judgment bt CoinrEssiON against "MgIndoe and Shuteb,
Pabtnebs," etc., by reason of not giving the full names of the parties
constituting such firm, must be dinegarded under the Rsrvised Stetutea
of Wisconsin, 1858, c. 125, sees. 37, 40; or if not, it was certainly cured
by the statute of amendments before the code. Revised Statutes of Wis-
consin, 1849, c. 100, sea 7, sulxt 10, making such a judgment good
where the full names of the judgment debtors had heea once rightly
alleged in any of the pleadings or proceedings, as in this case.
OwasiON IN Judgment bt Ck>NnEssiON against "MoIndob and Shutbii,
Pabtnjbbs," Bra, of the full names of the parties constituting such firm
may be amended under section 8, chapter 100. of the Revised Statutes of
7Q2 McIni>ob v. Hazelton. [WificonsixiL^
Wiflooiudn, 1849» by -a warraat of attorney ivhieh the parties eonfltitatni^
sach firm have ezeeated over their full names, aathorizing oonfession oT
judgment, and which has become a part of the record.
CkxiTBis OF Law Exxboisb Equitable Supkrvision over JirDOiCBirTS Bir-
TXBBD UPOIT Wabbaitts OF Attobnbt, and will, upon motion, stay,
modify, or vacate them, and award iasnes for the trial of facts, as the-
ends of justice may require. Where the objection arises upon the fao»>
of the record, this is the only remedy; but when it is founded upon facts-
not appearing by the record, and which must be established by parol or
other extrinsic evidence, then a suit in equity may be maintained.
Equtet will not Entertain Prooexdino to Set asedb Dsfbotiyx Judq-
HXNT BT Ck>NVESsiON where the plaintiff has an adequate remedy by
• motion, in the action in which the judgment was rendered, to set it-
aside, as in this case.
OOMFLAINT BT WaLTXR D. McInDOX TO RbSTBADI LxTT OF EXB0OTIO»
UPON HiB Estate, issued upon a judgment by confession against " Hdn-
doe and Shuter, partners," etc., on the ground that no judgment in aay
court was ever entered up against Walter D. Mclndoe and Charles
•Shuter, must show that the plaintiff would suffer injustice from tho
levy of the execution, or he will not be entitled to equitable relief.
OOUBTS OF EqUITT WILL NOT LiSTBN TO ApPLIGATIONa TO COBBJUJt MXBB:
Errors of Law unconnected with the substantial rights of the psrty.
Action to restrain levy of execution. In December, 1854,
Mclndoe and Shuter executed their note to Robert Holmes of
St. Louis, Missouri, or order, for fifteen thousand five hundred
dollars, payable one day after date, with interest, etc. To thi&
note was attached a warrant of attorney to confess judgment,,
executed by Walter D. Mclndoe and Charles Shuter. In De-
cember, 1854, judgment by confession was rendered in the-
usual form for the amount of said note with interest, in an ac-
tion entitled Robert Holmes v. Mclndoe and Shuter, partnerSy etc.
The answer contained the usual release of all errors that
might intervene in entering up judgment or issuing execu-
tion in the cause. The judgment was docketed December 18^
1854, as against Walter D. Mclndoe and Charles Shuter. On-
August 30, 1859, an order of court was obtained on notice-
personally served upon Walter D. Mclndoe and Charles Shuter,
authorizing the issuance of an execution in the case of Robert
Holmes v. Walter D. Mclndoe and Charles Shuter for the amount
of said judgment; and such execution was issued in August,.
1864, against the real and personal property of the persont^
last named as defendants. In October, 1864, Walter D. Mc-
lndoe brought this action to restrain the defendant Hazelton^
then the legal owner of said judgment, and the defendant
Stafford, sheriff of said county, from levying said executioiv
upon plaintiff's real estate, and advertising and selling ib»
June, 1865.] McIndoe v. Hazelton. 703
same, upon the ground that there never was a judgment en-
tered up in any court of the state " wherein Robert Holmes
was plaintiff and Walter D. McIndoe and Charles Shuter were
defendants," etc. An injunctional order was granted. De-
fendants put in evidence the judgment roll and the judgment
docket, showing a judgment as above stated in favor of Robert
Holmes and against Walter D. McIndoe and Charles Shuter;
also the affidavit and notice for leave to issue execution, with
proof of personal service of the same upon plaintiff and
Charles Shuter; also the order for the execution. In all these
papers the christian names of the defendants in that action
were given as above. The material facts alleged in the com-
plaint were found to be true by the court; the execution was
held to be void, and the plaintiff entitled to the relief de-
manded. Judgment for plaintiff, and defendants appealed.
E. L. Browne and J, 0. HophinSf for the appellants.
Minor Strope and S. U. Pinney^ (or the respondent.
By Court, Dixon, C. J. I think the objection to the judg-
ment upon confession is without any foundation either at law
or in equity. The defect was certainly cured by the statute
of amendments before the code: R. S. 1849, c. 100, sec. 7,
Bubd. 10. And by the next section it would have been the
duty of the court below, and of this court upon error, to have
granted an amendment. The record itself supplies the means.
The full names of the judgment debtors appear by the war-
rant, which by statute was to be and was filed with the
clerk: Id., c. 102, sec. 13. Under the English statutes, from
which ours was copied, only with greater liberality of amend-
ment, the practice has always been to amend where there is
anything in the record to amend by. Mr. Tidd lays down the
rule, in compliance with which he says: ^^It has been deter-
mined that the original writ or bill is amendable by the in-
structions given to the officer; the declaration by the bill; the
pleadings subsequent to the declaration by the paper-book or
draught under counsel's hand; the nisi prius roll by the plea
roll; the verdict, whether general or special, by the plea roll,
memory, or notes of the judge, or notes of the associate, or clerk
of assize; and if special, by the notes of counsel, or even by
an affidavit of what was proved on the trial; the judgment by
the verdict; and the writ of execution by the judgment, or
by the award of it, on the roll, or by former process": 1 Tidd's
Pr. 713. If the defect was cured or amendable before the
704 VcIndoe V, Hazelton. [Wisooosin,
code, I think it is now. I think that everything which was
accomplished by the old statute, with all its details, is now
effected by two sections of the present revision: R. S. 1858, c.
125, sees. 37, 40. Under the latter, it seems to me the defect
must be disregarded; but if not, then the court undoubtedly
mu^t amend under the former.
But if I am wrong in this, and the omission is not cured,
still it is but error, and the errors have been released.
A more conclusive answer, however, in this case is, that the
plaintiff has an adequate remedy by motion in the action in
which the judgment was rendered to set it aside, and that a
court of equity will not entertain the proceeding. It has fre-
quently been held* that courts of law exercise an equitable
supervision over judgments entered upon warrants of attorney,
and will, upon motion, stay, modify, or vacate them, and
award issues for the trial of facts, as the ends of justice may
require: Van Steenwych y. Sackett, 17 Wis. 657. And where
the objection arises upon the face of the record, this is the only
remedy. But when it is founded upon facts not appearing
by the record, and which must be established by parol or
other extrinsic evidence, then a suit in equity may be main-
tained. Such was the case of Lee v. Peckhamj 17 Id. 383, re-
ferred to by counsel for respondent.
Another and most conclusive answer to this action, if it be
necessary to multiply them, is that the plaintiff shows no
equity. Courts of equity will not listen to applications to
correct mere errors of law, unconnected with the substantial
rights of the party. This principle has been often acted upon
by this court: Ableman v. Roth, 12 Wis. 9(K92; Stokes v.
Knarr, 11 Id. 389; Warden v. Sup. Fond du Lac Co,^ 14 Id.
618; Kellogg v. Oshkosh, 14 Id. 624; Miltimore v. Rock Co., 15
Id. 9; Bond v. Kenosha, 17 Id. 284.
The judgment of the circuit court must be reversed, and the
cause remanded, with directions that it be dismissed.
Judgment icat be Amended ao as to &Iaee Names of Parties Tasmv
GoNTORM TO Those of the writ and declaration: SmUfi v. Redm^ 44 Am. Deo.
429; Ramsetf v. McCanUy, 58 Id. 134.
Statute Authorizing Judgment by Confession, Neglssitt of Strict
Compliance with: RklianU v. McMillan, G5 Am. Dec. 521, note 522; ^ryaii
V. Miller f 75 Id. 107, note 109. As to when such a judgment cannot be at-
tacked for intervening errors, see Claud v. El Dorado Co., 73 Id. 626w
Judgments Rendered upon Warrants of Attornbt, whrn mat bb
Opened and Party Let in to Defend: See note to Bank qf Woodar ▼. 8it-
vetu, 59 Am. Dec. 623.
June, 1865.] Kimball v. Ballard. 705
EqUITT will not iMTEHnOUB WHBBB THBRB KXISTS FULL AND AdBQLATX
Rkmxdt at Law: DoggeU v. Hart^ 58 Am. Dec. 464; Redmond r. Didbenon,
59 Id. 418; Andrews v. Sullivan, 43 Id. 53; Smith v. PdUngUl, 40 Id. 667.
The role is well stated, with its qualiiicatioiis, in Gregory ▼. Fordf 73 Id.
639, where it is said that courts of equity do not interpose to correct the
errors or irregularities of the law courts, and do not interfere with judg-
ments and proceedings of courts of law except in peculiar cases. See also
ifeecA V. AUen, 72 Id. 465.
Ths principal gabs was crrxD in each of the following oases, and to the
point stated: Judgment is not affected by, and will not be set aside or re-
yersed on account of, formal irregularities merely, where there is no claim of
a meritorious defense: BotmellY. Orayt 36 Wis. 581; Bowman ▼. Van Kurenf
29 Id. 216; Holmea ▼. Melndoe, 20 Id. 668. If the judgment in an action at
law is not inequitable as between the parties, no matter how irregular or void
it may be, a court of equity will not interfere, but will leave the parties to
their remedies at law. The fact that the judgment creates a cloud upon
the title to land does not alter the rule: Thomaa ▼. We^ 59 Id. 103; WUtbD^
won ▼. Beufey, 59 Id. 556. So where a void judgment of a justice of the
peace has been docketed in the circuit court, that court may, on motion, va-
cate the docket entries and strike the transcript from the files; but an ao-
tion in equity cannot be maintained; Thomas v. West, 59 Id. 106. Where
the summons and pleadings show the names of all the partiesi the judgment
of a justice of the peace will not be reversed merely because, in entering
the case on his docket, after giving the name of one plaintiff, he designated
the others by the words "and others": CamfbeU v. BabbiUs, 53 Id. 282,
where BenneU v. CkUd, 19 Id. 362, S. 0., anie^ p. 692, is erroneonsly cited
instead of the principal case.
Kimball v. Ballabd.
119 Wisconsin, wl]
Tax Salb m Void whxbb Lanss hayb bixn Sold ior TLi.iBAfi ELuj—
or Five psb Csnt more than the amount of taxes and charges for
which they were liable to be sold.
Owner oan NLontain Suir to Cancel Tax Deed to bib PminaEH, where
they have been sold for an illegal excess above the amount of taxes for
which they were liable, by tendering the amount for which they should
have been sold, with interest at seven per cent.
Action commenced September 14, 1864, to have a tax deed
declared void, and defendant adjudged to release his claim to
the land covered thereby. The sale was made in 1860, for the
taxes of 1859, and the deed was executed September 12, 1864.
It was alleged in the complaint that the amount for which the
land was sold was $73.75, while the total amount of taxes of
said year, with five per cent fees for collecting the same, and
all costs and charges due at the time of sale, was only $70.28.
It was further alleged that the act of the county treasurer, set
DBa Vol. LXXXVin-H5
706 Kimball v. Ballard. [Wisconsin^
forth in the opinion, made the amount for which said land wad
sold and conveyed as above stated. The complaint then
averred a tender by plaintiff to defendant, oi^ September 10^
1864, of ninety-two dollars^ to pay the amount of said taxes,
with costs, charges, and interest to the date of such tender,
which defendant refused; also a tender on September 14, 18G4,
of the amount oi said taxes, with costs, charges, and interest
to that date, with three dollars in payment for the tax deed,
which defendant had then taken, and charges thereon, and for
stamp and charges on a deed of release which plaintiff ten-
dered to him ready for execution, and demanded that he
should execute, but which defendant refused to execute. De-
fendant demurred to the complaint as not stating a cause of
action; and from an order sustaining the demurrer the plain-
tiff appealed.
W. 8. Warner^ for the appellant.
Anson BaUardj pro se.
By Court, Downeb, J. The complaint alleges that the
county treasurer, at the time he made the sale of the land
described in the complaint, ''added to the taxes assessed
against said land the interest due thereon, and all of the costs
for the advertising and sale of the same, and then added
thereto five per cent upon the total amount thereof, willfuUy
and without any right and authority of law." The adding of
the five per cent is conceded to have been illegal, and he sold
the land for the entire amount, including the five per cent,
being an excess over lawful taxes of $3.47. Such sale was
void: Lacey v. Davis, 4 Mich. 140 [66 Am. Dec. 524]; Kemper
V. McClelland, 19 Ohio, 308; Mills v. Johnson, 17 Wis. 603; Her-
sey V. Supervisors of Milwaukee Co., 16 Id. 185 [82 Am. Dec.
713]; Lefferts v. Supervisors oj Calumet Co,, 21 Id. 688.
The tender of the amount of legal taxes and seven per cent
interest thereon was sufficient to entitle the plaintiff to bring
thi^ suit to cancel the deed. The defendant contends he should
have tendered twenty-five per cent interest instead of seven.
The authorities he cites do not warrant the conclusion he draws
from them. They are cases where the sale was voidable only,
and not void. The respondent insists that the tender was not
equal to the amount the clerk of the board of supervisors
would have paid him on surrendering the deed for canoella-
tioD. There is no reason why it should be. If he had takeD
June, 1865.] Smith v. Smith. 707
the amount tendered, the county would still have remained
liable to him for the $3.47 exceBS, and interest thereon.
The demurrci^to the complaint should have been overruled;
and the order of the court below sustaining it is reversed, with
costs.
Salb ow Lands tor Excbs ot Taxes is Void: See note to Laeqf v. DwoU
66 Am. Dec 534; QUddm y. Chaat, 56 Id. 692.
Thb principal casb was cited in each of the following antborties, and to
the point stated: A sale of lands at a tax sale for ^"9^ per cent more than the
taxes and charges for which by law they are liable to be sold is void: Watr-
mer y. SupervUars qfO, Co., 19 Wis. 613; Pierce v. ScJtuU, 20 Id. 424, 425. So
including five cents for a reyenne stamp in the amount for which the lands
were sold will render the sale yoid: Barden y. Supermeors <2^ (7. Co., 33 Id.
447; and including any illegal excess for fees, either intentionally or throogh
a mistake of the law, will render a tax sale and a conyeyance yoid: MUle^tge
y. Cokman, 47 Id. 186. The owner is entitled to a judgment avoiding the
sale and deed on paying the amount actually due at the time of sale, with in-
terest at seven per cent: Pierce v. SchuU, 20 Id. 424, 425. Equity will restrain
the issuance of a deed upon a sale of land, as for a delinquent tax, where
there was no valid assessment, without requiring other proof of injury to the
plaintiff from the pretended tax: iforsA v. Supervieore qf 0. Co., 42 Id. 519.
But it is a fundamental rule that a court of equity will not interfere to declare
a tax invalid, and restrain its collection, unless tiie objeeticns to the proceed-
ings are such as go to the very groundwork of the tax, aad neceesarilj
affset materially its principle^ and show that it must necessarily be unjust
and unequal: Kapler v. DoHberpM, 56 Id. 483. While the Wisoonsin oonrts
have frequently sustained equitable aotions to set aside a void tax or assess-
ment which was an apparent specific lien upon some particular'peroel of real
estate, it will be seen that in all these cases where the relief was granted for
mere irregularities in the prooeedings which rendered them void, and where
no equitable copsidarationfl were alleged or piovedy the relief was granted
only upon the paymeni of the imgnlar tax cr nsewsmnnt! TkotmA ▼. VTeK,
59Id.lOS.
Smith v. Smith.
[19 Wlsoovsnr, O&J
IiTBiTioHAL OmaBKoat aw Taxable PBonKrr bt AaaaaoM, MisntiAUT
AiFBcmvo Equautt ob Taxatiom, and innrssiiing the boidan of tht
party complaining, will avoid the tax; bat the nnintentinnal aaamaaa of
such property by the officer attempting in good faith to oany ont the
requisitions of the law will not.
tdMlBLATURB HAS PoWBB TO PbBSOBIBB VoBU OW PBOOBBSIDIOS IN ASSESS-
MENT AND CoLLBonoN OF TaxB8» and, m matters of fonn, may declare
what stepe shall or shall not be essential to the validity of a tax sale or
tax deed.
Dmwmbdaut in AonoN bt Tax-title Cladiabt inTsr Make Deposit re<
quired by chapter 22, Wisoonsin Laws of 1859, in certain cases, or show
708 Smith v. Smith. [WiacooaiD,
conditions of the act in which a deposit isi not required, or that the taaces
are unjust and void in equity.
In AcnoN by Taz-titlb Claimant, It is not SuFnciBifT that I>KiKiri>-
ant's Answeb AUiEGES DEPOSIT required by chi^ter 22, Wisoonsin
Laws of 1859, in certain cases; but it must be proved* and there most b«
a finding of the fact, to sustain a judgment for the defendant.
Pabol Evidence or Tttlb to Land is not Best Evidence, and is incom-
petent where paper title exists.
Allegation in Complaint that Defendant " Has or Claims am Inter-
est," etc., does not relieve him from proving that it is a redeemable in-
terest, and the evidence must be the same as in other cases of disputed
title.
Action by tax-title claimant, under chapter 22, WisconsiD
Laws of 1859, commenced September 15, 1863. The com-
plaint contained in tabular form a list of the lands on which
plaintiff alleged that he had taken tax deeds, and to which he
sought to quiet title, etc. Opposite such description was the
date of the tax sale, the amount for which each tract was sold,
the amount paid for the deed, etc., and the names of former
owners and of those claiming under them. All the persons
whose names were there given were made defendants. Oppo-
site two of the tracts, being lot 14, block 1, and lot 6, block 2,
in the village of Menasha, the two first names in the list were
Elbridge Smith and Caroline J. Smith. Said lots were sold
April 10, 1860, and the deed taken and recorded April 15,
1863. Defendant Caroline J. Smith answered separately, first
by a general denial; and as a further answer, alleged that at
the time the tax deed was issued she was, and for a long time
previous had been, and still was, the owner in fee-simple of
the two lots mentioned; that she was a married woman, and
was so at the time said tax deed was executed, and at the time
of the tax sale; and that the time for her to redeem said lots
from said sale had not yet expired. As a third defense, said
defendant alleged various irregularities in the tax proceedings.
The answer then alleged that the defendant had deposited
^vith the clerk of the court the amount required by law for the
redemption of the undivided half of said lot 14, and was ready
to pay such portion of the costs and disbursements in this ac-
tion as should be just and reasonable. Prayer, that plaintiff
be adjudged to release to defendant all his right and claim
under his tax deed to the lots in question, etc. Defendant, on
the trial, objected to the introduction of any evidence for tlie
plaintiff, on the ground that the complaint did not state a
cause of action, and that chapter 22, Laws of 1859, was un«
June, 1885.] Smith v. Smith. 709
constitutional. Objection overruled. Mrs. Smith then proved
her title by parol, proved her coverture, and introduced evi-
dence tending to prove the alleged irregularities in the tax
proceedings. The court found the issuance of the tax deed to
the plaintiff, etc., as alleged in the complaint, and also found
the facts as to Caroline J. Smith's coverture, and her owner-
ship of said lots 6 and 14, as alleged in the answer. It also
found various irregularities in the tax proceedings. Among
these irregularities, it appeared that no personal property for
that year was returned by the assessor to the clerk of the board
of sui>erviso^6, as required by law. This omission is considered
in the qpinion. As the other irregularities were not consid-
ered, it is unnecessary to notice them. On these facts, the
court held that Caroline J. Smith had a right to redeem the
lots from the tax sale, which right would not expire until
April 10, 1865, and that she was entitled to judgment as de-
manded in her answer. Judgment accordingly, from which
the plaintiff appealed.
Anson Ballardy and Whiiiemore and Weishrod^ for the appel-
lant.
Etbridge Smithy for the respondent.
By Court, Dixon, C. J. The intentional omission of taxable
property by the assessor, materially affecting the equality of
taxation and increasing the burden of the party complaining,
will avoid the tax; but the unintentional omission of such
property by the officer, attempting in good faith to carry out
the requisitions of the law, will not: Weeks v. Milwaukee Co.^
10 Wis. 263; Hersey v. Supervisors of Milwaukee Co., 16 Id. 185
[82 Am. Dec. 718]; Dean v. Gleason^ 16 Id. 1. In this case,
the omissions may fairly be regarded as the result of mistake
or accident. There is no evidence of bad faith, or that the
property was purposely omitted. The payment of the taxes
cannot, therefore, be avoided on this ground. The other ob-
jections go merely to the form of the proceedings. They do
not aiect the groundwork of the taxes, or sliow that they are
necessarily inequitable or unjust: Mills v. Gleason, 11 Id. 496
[78 Am. Dec. 721]; Warden v. Supervisors of Fond du Ixic Co,^
14 Id. 618; KeUogg v. Oshkoshy 14 Id. 629; Miltimore v. Rock
Co.f 15 Id. d; Mills v. Johnson, 17 Id. 601. The legislature
have power to prescribe the form of proceedings in the assess-
ment and collection of taxes, and, in matters of form, may
declare what steps shall or shall not be essential to the valid-
710 Smith v. Smith. [Wisoonfliii,
iij of a tax sale or tax deed: Smith v. Cle^elandj 17 Wis. 556.
In Wakeley v. Nicholas^ 16 Id. 588, we held that the provisions
of chapter 22, Laws of 1857, requiring a deposit, etc., were but
the application of equitable principles to actions brought
under that act This is such an action, and the defendant
has made no deposit At least, the record shows none. She
avers a deposit in her answer, but it is not proved. Assum-
ing, then, her right to redeem within five years, which we
do not decide, the judgment must be reversed for that rea-
son. She has not shown the taxes to be unjust and void in
equity, nor any conditions of the act in which a deposit is not
required, and she has shown no deposit; which last she most
do before she can prevail in her defense, where the former
grounds of objection do not exist
There is another reason for holding the judgment erroneous.
Mrs. Smith's proof of title is defective. It was by parol, was
objected to, and was clearly incompetent Her counsel also
relies on the allegation of the complaint that she owns an in-
terest. But whether it is a redeemable interest or not does
not appear aside from the parol proof. It may be a contin-
gent right of dower, dependent on her surviving her husband,
in which case her right of redemption is very doubtful. My
brethren think, therefore, that she should have introduced her
paper title, and until she has done so, and shown that she has
a redeemable interest, they decline to determine whether the
five years' redemption clause is applicable to the case or not
For myself, I doubt whether she was obliged to give any proof
of title. In actions of this nature, I am not clear that the
interest averred in the complaint is not to be understood as a
redeemable interest. Such is the theory of the action, which
is commenced to cut off the right of redemptioo of the defend-
ants; and if they have no redeemable interest, it would seem
that they could not properly be made parties.
Judgment reversed, and cause remanded for fbrther prch
oeedings according to law.
Omissions of Taxabls PBonatTr ibok AssBSSiODrT Boxx^ Srraor of:
BentyY. Board qf 8upervito>r$ qf JiUufomkee Ox» 82 Am. Deo. 71S, note 710.
Quo MoDo or Taxation d Mattib ov Lboislatevx Oovtbol: Ih WUi
V. Ila^ 66 Am. Dec 362.
Ths PBOroiPAL CASK WAS GiTiD in eaoh of the following Mitlioritiea» and te
the point stated: Diacriminations in the ▼alnation and ■■oemmentol jiruperly,
arising £rom mistake of fact, or errors in oompntation or judgment on the pact
do not necessarily vitiate a tax, but an intentions] disreigsrd ol law
Juno, 1865.] Bbodhead v. Milwaukeb. 711
in saeh dJacriTniTialion does: Bramu ▼. Cfiiff qfOreen Boff, 65 Wu. 110. Bzoep-
tional errors of judgment and nuBtakes of fetot, happening in good faith, and
not affecting the principle or the general equality of the aasessment, will not
vitiate it: Mcarth v. Superviaon qf O. Co., 42 Id. 510. Honest mistakes of
judgment^ either on the part of the assessors or of the hoards of review,
which might render the apportionment nneqnal in fact, wonld not even ren-
der the tax proceedings illegal or void at law, much less in an equitable
action to avoid the entire tax: Fyidd v. MarineUe Co., 62 Id. 541. The legis
latore has the power to compel a party attempting to avoid the title of a
person claiming under a tax deed, simply on the ground of irregularities, and
not upon the ground that the tax is unequal and unjust, to deposit the
amount of the taxes justly due upon the land at the time of the issuing of
the tax deed, as well as thoee paid alter such issuance by the tax-title claim-
ant: Lombard v. Antioeh College, eO Id. 470; PIdUeo v. HUfs, 42 Id. 529;
€ped. V. JarviH, 59 Id. 590; Knight v. Bamea, 25 Id. 353; Pbnner v. i^uper-
viaors qf Mikoauhee Co., 46 Id. 174. But in an action under the statute,
by the grantee in a tax deed to bar the title of a former owner, any defense,
though not enumerated in the statute, " which goee to the groundwork of the
tax," is admiwihie withoat the deposit required by statute: PMUeo v. HikSf
42 Id. 529.
Brodhead t;. Milwaukee, Pobteb v. Milwaukee.
[19 wisooNsm, flat]
PRiNaiPX.B Laid sown nr "Gkbat Lbadirq OAsa" of SkarjpUae v. Mofor
qf PkOadOplua, 21 Bl St. 147, & 0., 59 Aaa. Dec 759, upon the subject
of taxation, were accepted as correct and approved in tins case.
Lboiblatu&b ganhot Cbbatb Public Dibt, or levy tax, or anthorize a
municipal coiporation to do so, in order to raise funds lor a mere private
purpose.
Objects iob Which Mohbt is Baisbd bt Taxation uxms bb Public, and
such as subserve the common interest and well-being of the community
required to contribute.
Court will not bb Justivibd in Dbglabing Tax Void, and Arbbstino
Progekdinos vob iib OoLLBcnoN, unless the absence of all possible
public interest in the purposes for which the funds are raised is so dear
and palpable as to be immediately perceptible to every mind.
Olaqcb Foundbd in Equttt and JusncB, in the largest sense of those
terms, or in gratitude or charity, will support a tax.
Obatttudb to Soldixb for his Servicbs, bb Hb Yoluntxbr, Substitutb,
OR Draitxp Man, will sustain a tax for bounty money to be paid to
him or his family.
PaTMBNT OB BOUNTIBB TO VOLUNTBBBS TO FiLL QUOTAB AND AVOID DrAVTS
IB Such Public Purfosb as will authorize state or municipal taxation.
The bounty is not a private transaction in which the individual alone is
benefited. The object is not to obtain money for the volunteer, but for
the community which is to be relieved by the volnnteer.
Pboourino OB Bubbtitutbb d Lawvul and Pbopbb nr Itbbut; and so far
as the pubUc intereet is ocncemed in being relieved from a drafts there
is no cQstinotum between paying bouitiea to them and to those who
volunteer.
712 Bbodhead v. Milwaukee. [Wisconsin,
PowxB TO Tax vor Pubfosb ow Fbovtdbkq Bouim^ toh Those Who
SHALL FuBKiSH SuBSTTnTTBS Wider a pending call before being drafted,
and have them credited to the town, city, or village, so as to avoid or
help to avoid an approaching drafts while it may not rest upon the ground
of gratitude, can be sustained upon consideration of the benefit accruing
to the town, city, or village from the credit, ^diich is direct and palpable.
Lmislatubx mat, in CoMsn)XEATiQN OW Soldibb's Sxrvigss, Oivb to
HDC OB HIS FaJOLT SuTTABLK BoUMTT AFTBB mS ElTUSTMBNT in the
military servioe of the United States under an act of CongreBS and a call
of the President of the United States, or even after his term of 8er\'ice
has expired; and it may authorize municipal corporations to raise money
by taacation for the payment of bounties to such volunteers who may be
credited to such town, city, or village upon its quota under such calL
It may provide for bounties from the state at laige, or from counties, as
well as cities and towns, without regard to the system of congressionaF
divisions.
Obastksl 14, WisooNsiN Laws ov 1866, as Shown in Sbction 1 of Facts
or This Case, was Hsld to bx Valid, and applicable to the <dij of
Milwaukee, as well as to towns and villages. It did not conflict with the
charter of that city, or repeal or modify it in any particular, and was
not invalid because it required such tax to be extended on the nnsf
ment rolls of the previous year.
Lboislatubk has Powxb to Pass Special Acts fob Spbghal Pubpoos
without infringing upon the operation of other general laws; and may
except a particular class of cases from the provisions of a previously
existing general law, without repealing such law.
OODBTS must DETEBXnra QuBSTXONS ah to PoWEB op LBOnLATTTBX uhubb
Oomstitdtion when such questions are properly presented, but eaiiaot
arrest the operation of a statute on the ground that it is unwise, unjust^
or oppressive when no question of legislative power is involved.
It is fob Leoislatube to Pbxsobibb Time and Mannxb op Oaluno
AND HoLDiNO ELECTIONS; and if the room at which an election is called
is small, inconvenient, and inaccessible to large numbers, as it was in
this case, the electors, or a majority of those present^ may adjourn U^
some other place where these objections do not exist, making public
announcement thereof and causing proper notice to be given to voters
who shall come afterwards. The electors have this right as a power
incident to all ooiporatioBS at common law, irrespective of statatory
grant, and is always possessed by the electors assembled on such ooea>
sions unless expressly taken away by statute.
In Constbuction of Wbittsn C^onstituttons, Courts abb to be Govxbhzd
by the purpose of the framers.
Tax Levied in Cmr of Milwaukee, fob Pubpose op Raisino Monet
FOR Payment of Bounties to volunteers, under Wisconsin Laws of 1865»
chapter 14, was held not to be invalid by reason of Certain alleged
irregularities or defects in the proceedings of the special meetiDg of the
electors of said city by which the tax was voted.
Chapter 14, Wisconsin Laws of 1865, approved and pub-
lished February 2d, provided as follows: ** Section 1. The
qualified electors of each town, city, and incorporated village
in the state shall have power, at any annual or special meeting
Juue, 1865.] Bbodhead v, Milwaukee. 713
thereof, to raise by t-ax such sum or Bums of money as they
may deem necessary to pay bounties to volunteers who may
have enlisted or who may hereafter enlist under the call of
the President of the United States of December 19, 1864, for
three hundred thousand men, and who shall hereafter enlist
under any call of the President which may hereafter be madi,
and become credited to such town, city, or village under such
calls; and also to persons who shall procure substitutes for
themselves before being drafted, and have them credited to such
town, city, or village upon its quota under any such call, and for
the purpose of giving aid to the families of volunteers and of
drafted men in the service of the United States or of this state;
provided, that no more than two hundred dollars shall be
paid to any such volunteer or person furnishing a substitute, or
to the family of any volunteer or drafted man, out of the money
so raised." Sections 2, 8, and 10 prescribed the time, manner,
etc., of holding and conducting such meetings to raise money
by taxation for the payment of bounties to such volunteers
and drafted men. Section 8 required such tax to be extended
on the assessment rolls of the previous year. In section 10 it
was provided that errors, omissions, or mistakes in giving the
notice of such meetings, or in the time or place of holding or
in the manner of conducting the same, should not invalidate
any of the proceedings, except in cases of actual fraud. The
electors of the city of Milwaukee voted to raise one hundred
and nineteen thousand dollars for the purposes mentioned in
the first section of the act as stated above. It was contended
that such tax was illegal on various grounds, which appear in
the opinion. The first of the above-named actions w^as brought
by thirty-three residents and owners of real and personal
property in said city, in their own behalf and that of all others,
etc., against the city of Milwaukee and its officers, to re-
strain them from issuing or authorizing the issue of any city
orders for said sum of one hundred and nineteen thousand
dollars, which was to be levied as a special tax upon all the
real and personal property of said city, or receiving any such
orders in payment of any taxes of said city, or levying or col-
lecting the above-named tax. The complaint alleged that the
city of Milwaukee contained fifty thousand inhabitants, and
eight thousand legal voters; that the city hall, where the meet-
ing was held, was not capable of holding, if filled to its utmost
capacity, more than one thousand persons; that for the pur-
pose of taking the said vote, but one poll was open in the en-
714 Bbodhead V, Milwaukee. [WiBconain,
tire city; and that it would be absolutely impossible to take
the votes of one half the legal voters of said city at a single
poll between the hours of nine o'clock in the morning and five
o'clock in the afternoon. This allegation was not denied, and
therefore had to be taken as true. In the action of Porter ▼.
Uity of Milwaukee, it appeared, in addition to the facts set
forth in the preceding case, that according to plaintiff's com-
plaint, he was the owner of certain real estate in the fifth
ward of the city of Milwaukee; that no part of said one hun-
dred and nineteen thousand dollars could be used to fill the
quota of said ward; that no part thereof could be used to re-
fund the money paid as bounty to the men furnished upon and
for the quota of said ward to those who contributed the same,
except the sum of two hundred dollars, for which the last man
so mustered and credited to said ward gave to the committee
who paid him his said bounty an order on said city; and that
plaintiff had furnished a substitute, who was received and
mustered into the service of the United States, for whom he
had paid $625; and he therefore claimed to be, under the law,
exempt from draft for three years, etc. Upon the complaints,
duly verified, the court granted orders upon the defendants to
show cause why an injunction should not issue as prayed for.
After a hearing, the court denied the motions for an injunc-
tion, and from these orders the plaintiffs appealed.
Thomas L. Ogden, N. J. Emmona, and Joshua Stark^ for the
appellants.
James G. Jenkins, city attorney, for the appellees.
By Court, Dixon, C. J. The argument was able and ex-
haustive, and left nothing for research or suggestion on my
part. I was convinced at the time, and so expressed myself
to my associates, that the unconstitutionality of the tax could
not be maintained. I thought the act valid in every par-
ticular, and my convictions have since been confirmed by
the opinions of the highest courts of two of our sister states
upon the direct question. One of those opinions was not then
published, and both have but very recently come to hand.
I refer to Booth v. Woodbury, 32 Conn. 1 18, and Speer v. DUiirS'
viUe, 50 Pa. St. 150. I shall avail myself to a considerable
extent of those opinions as expressive of my own views of the
law.
Counsel on both sides accept as correct the principles laid
down in the great leading case of Sharpless v. Mayor, 21 Pa. St.
June, 1865.] Brodhead v. Milwaukee. 716
147, 168 [59 Am. Dec. 759], upon the Bubject of taxation. The
same principles have frequently been afQrmed by this court.
The legislature cannot create a public debt, or levy a tax, or
authorize a municipal corporation to do so, in order to raise
funds for a mere private purpose. It cannot in the form of
a tax take the money of the citizens and give it to an indi-
vidual, the public interest or welfare being in no way connected
with the transaction. The objects for which money is raised
by taxation must be public, and such as subserve the common
interest and well-being of the community required to con-
tribute. To justify the court in arresting the proceedings
and declaring the tax void, the absence of all possible public
interest in the purposes for which the funds are raised must
be clear and palpable, — so clear and palpable as to be per-
ceptible by every mind at the first blush. In addition to
these, I understand that it is not denied that claims founded
in equity and justice, in the largest sense of those terms, or
in gratitude or charity, will support a tax. Such is the lan-
guage of the authorities.
I think the consideration of gratitude alone to the soldier
for his services, be he volunteer, substitute, or drafted man,
^11 sustain a tax for bounty money to be paid to him or his
family. Certainly, no stronger consideration of gratitude can
possibly exist than that which arises from the hardships, pri-
Tations, and dangers which attend the citizen in the military
service of his country; and all nations have ever so regarded
it. Who will say that the legislature may not, in considera-
tion of such services, either directly or indirectly, or through
the agency of the municipality or district to which he is cred-
ited, give to the soldier or his family a suitable bounty after
his enlistment, or even after his term of service has expired?
I certainly cannot It is a matter which intimately concerns
the public welfiaxe; and that nation lydll live longest in fact as
well as in history, and be most prosperous, whose people are
tnost sure and prompt in the reasonable and proper acknowl-
•edgment of such obligations.
But the act provides for paying the same bounties *' to per-
isons who shall procure substitutes for themselves before being
•drafted, and have them credited to such town, city, or village,
upon its quota," under the then pending call of the President,
-or any call which should hereafter be made; and it is said
that clearly no debt of gratitude is due to such persons. To
cny mind it is not quite so clear. Suppose that during the
716 Brodhead V, Milwaukee. [Wisconsin^
late Rebellion citizens enough in the loyal states, liable t4>
military service, had famished substitutes so as promptly to-
have answered the calls of the President and kept the armies
of the Union replenished with new soldiers, and so as to have-
avoided the evils and expense of the drafts, — is it clear that
all the communities thus relieved would have been under no-
obligation of gratitude to such citizens? Suppose, still further,
that under the system of apportionment adopted by Congress
a sufficient number of such citizens had been found in any
town, city, or election precinct to have filled its quota by sub-
stitutes,— would there have been no cause for thankftdnes^
on the part of the inhabitants of such to?m, city, or precinct
for their having done so? I must confess that I think there-
would. War, though often unavoidable, is always a most de-
plorable public misfortune; and among its calamities, not the-
least, I may say the greatest, is the forcible separation of hus-
bands, fathers, sons, and brothers from their homes, kindred,,
and friends, to be made the bloody sacrifices upon the field of
battle, or to die of loathsome diseases contracted in camps or
up>on campaigns; and those who avert the evil of such forcible^
separation, I care not from what motive of private or in-
dividual interest, so that the duty of furnishing men for the-
army is performed, cannot but be regarded as in some sense
public benefactors.
But it is not for them who have furnished substitutes in the
past that the act provides bounties, but for those who shall d<y
so under a pending call before being drafted, and have them
credited to the town, city, or village, so as to avoid or help to-
avoid an approaching draft. In such case, the power to tax
may not rest upon the ground of gratitude. It can be sus-
tained upon consideration of the benefit accruing to the town^
city, or village from the credit, which is direct and palpable.
The procuring of substitutes was lawful and proper in itself.
The act of Congress authorizes it, and the credit to the town^
city, or village. Substitutes must be persons not liable to the-
draft, so as not to afiect the interests of those who were, other*
wise than by directly relieving them from the burden of it.
The provision for substitutes was a necessity. Other obliga^
tions exist as strong, sometimes almost stronger, than that of
carrying arms in the public defense; and they could not be-
ignored. Some were so situated that personal service seemed
impossible. Others might not go without greater loss to the-
c6mm unity at home than gain to the public at large. The
June, 1865.] Bbodhead v. Milwaue:ee. 717
procuring of subetitutes was therefore not only proper, but
in many cases commendable. Persons procuring them per-
formed their whole duty under the law. They furnished sol-
diers for the fieldy and relieved the communities in which they
resided the same as if they had themselves enlisted. So far
as the public interest is concerned in being relieved from the
drafts I can see no distinction between paying bounties to
them and to those who volunteer. Both contribute in pre-
cisely the same degree to such relief. The error of coimsel, I
think, consists in looking exclusively to the motives of private
advantage by which the persons were governed. That such
motives existed, and were most frequently the predominant
cause of their procuring substitutes, will not be denied. But
there is no public good without at the same time some private
gain, and, in the language of Chief Justice Black, it is enough
that we can see any possible public interest in the act, or pub-
lic benefit to be derived from it. All beyond that is a ques-
tion of expediency for the legislature, not of law, much less of
constitutional law, to be determined by the courts.
Upon the general question whether the payment of boun-
ties to volunteers to fill quotas and avoid drafts is a public
purpose so as to authorize state or municipal taxation, I quote
from the opinion of the Pennsylvania court. '' The power to
create a public debt and liquidate it by taxation is too clear
for dispute. The question is therefore narrowed to a single
point: Is the purpose in this instance a public one, — does it
concern the common welfare and interest of the municipality?
Let us seQ. Civil war is raging, and Congress provided in the
second section of the act of the 24th of February, 1864, that
the quota of troops of each ward of a city, town, township,
precinct, etc., should be as nearly as possible in proportion to
the number of men resident therein liable to render military
service. Section 3 provides that all volunteers who may en-
list after a draft shall be ordered shall be deducted from the
number ordered to be drafted in such ward, town, etc. Volun-
teers are therefore by law to be accepted in relief of the munici-
pality from a compulsory service by lot or chance. Does this
relief involve the public welfare or interest? The answer rises
spontaneously from the breast of every one in a community
liable to the military burden. It is given, not by the voice of
him alone who owes the service, but swells into a chorus from
his whole family, relatives, and friends. Military service is
the highest duty and burden the citizen is called to obey or to
718 Bbodhead 17. MiLWAUKEB. [Wisconsin.
bear. It involves life, limb, and health, and is therefore a
greater 'burden' than the taxation of properly. The loss or
injury is not confined to the individual himself but extends to
all the relations he sustains. It embraces those bound to him
in the ties of consanguinity, firiendship, and interest; to the
community which must furnish support for his family, if he
cannot; and which loses in him a member whose labor, in-
dustry, and property contribute to its wealth and its resources;
who assists to bear its burdens, and whose knowledge, skiU,
and public spirit contribute to the general good. Clearly, the
loss of that part of the population upon whom the greatest
number depend, and who contribute most to the public wel-
fare by their industry, skill, property, and good conduct, is a
common loss, and therefore a general injury. These are alike
subject to the draft. The blind and relentless lot respects
no age, condition, or rank in life. It is therefore clearly the
interest of the community that those should serve who are
willing, whose loss will sever the least ties, and produce the
least injury.
*' The bounty is not a private transaction in which the indi-
vidual alone is benefited. It benefits the public by inducing
and enabling those to go who feel they can best be spared. It
is not voluntary in those who pay it. The community is sub-
ject to the draft, and it is paid to relieve it from the burden of
war. It is not a mere gift or reward, but a consideration for
service. It is therefore not a confiscation of one man's prop-
erty for another's use, but is a contribution firom the public
treasury for a general good. In short, it is simply taxation
to relieve the municipality from the stem demands of war,
and avert a public injury, in the loss of those who contribute
most to the public welfare. This is the design of the law;
and it is no answer to say that bad men have abused it
It is not the individual payment thai tests the public char-
acter of the appropriation. Individuals are always the recipi-
ents of the public funds. It is paid to salaries, to pensions, to
bounties for the scalps of panthers, wolves, foxes, crows, and
blackbirds, to the poor, to the education of the youi^, as
rewards for the ap|>rehension of horse-thieves and felons, to>
the families of soldiers in the service, to aid hospitals, col-
leges, agricultural societies, and to other useful objects. In
all cases, the recipient is directly benefited, while the public
interest in many is not half so imperious or acute as the relief
of a community firom an impending draft .... The pursuit
June, 1865.] Brodhead v. Milwauksb. 719
of happiness is our acknowledged fundamental right, and that,
therefore, which makes a whole community unhappy is cer-
tainly a social evil, to be avoided if it can be. The support
of the poor affords one of the best illustrations of what is a
municipal or public appropriation of money. The pauper is
the party directly and solely benefited, while his pauperism is
a public evil, and often is the result of crime. The pauper
has not the merit of the volunteer, while the community is
injured, not benefited, by his support. There is nothing but
a naked public duty performed in his relief. The same may
be said of all expenditures of public money in the punish-
ment of crime If, then, it be within the scope of a
municipal purpose to grant pensions, pay bounties, give
rewards for the destruction of noxious animals, and the ar-
rest of felons, employ watchmen, support paupers, build alms-
houses, bridges, and markets, aid charitable institutions, make
roads, and grade and pave streets at public expense, how much
more is it a public affair which has for its object to prevent
the forcible and blind extradition of a valuable part of the
population into a service dangerous to the lives and limbs of
those who go, and destructive of the welfare and happiness of
those who remain. Nor can the dilemma be avoided. It is
imposed by the exigency of war and the duty of public de-
fense In the case befori3 us, the object is not to obtain
money for the volunteer, but for the community which is to
be relieved by the volunteer The consideration given
on his side is most valuable, — he enlists into a dangerous ser-
vice, running the risk of life and limb, and takes upon him-
self the burden resting upon the whole community subject to
the lot. The public welfare, as I have already shown, is most
intimately involved in the draft, which enters directly within
the field of municipal affairs. The die is not cast, and the lot
is yet uncertain. All are liable within the ages of the great-
est capability for usefulness. The chosen may be the most
valuable, useful, and needed members of society, whose extra-
dition may produce the greatest injury and the most distress.
The public interest is more involved in the ills of a draft than
in many evils recognized as public in their nature. An ob-
struction to a highway and a disorderly house, perhaps hurt-
ful to but few, are punished as public nuisances. Even sounds
and smells claim public attention. An impending draft is an
evil certainly more to be dreaded than the odor of a pig-sty,
or even the clatter of horns. Can it be that citizens may be
720 Bbodhead v. Milwaukee. [WiBoonsin,
torn from the community, and social ties ruptured, to drag
them into a dangerous public service, and yet community
cannot interfere to save them, on the ground that it is only a
private affair? Their property m#y be protected from the
storage of powder by municipal regulations, but their bodies
cannot be saved from being made food for powder in the pub-
lic defense. It is possible to hold the disc of the dollar so
close to our eyes that it excludes from sight every object of
public interest, and blinds us to every sentiment of human-
ity."
This is fully to the purpose, and enough upon the question
of municipal bounties to volunteers.
Another objection is, that the duty of service is personal,
confined to the class named in the conscription, and that the
residue of the people required to pay the tax have no interest
in the question. This is as false in fact as it is in theory.
We all remember the gloom and anxiety that pervaded all
classes of community before the late drafts, and the rejoicing
and happiness when the ^' quota was filled" and the draft
avoided, — not the happiness and rejoicing of those alone who
were liable to the draft, but of thousands upon thousands of
others connected with or dependent upon them in the manifold
relations of life. It is idle to say that none but those within
the ages of conscription were interested. And as to the theory
that no others owe service, I answer, in the language of the
court in Booth v. Woodbury^ 32 Conn. 118, in which town boun-
ties to drafted men were sustained, that every citizen is bound
to take up arms, when necessary, in the defense of his govern-
ment, not as a matter of strict law, but as an incident of citi-
zenship. The selection of a class only of a certain age, of
whom that service is to be immediately demanded in a partic-
ular case, although wise, is arbitrary, — not based on any pecu-
liar or special obligation resting upon the class, or their ability
alone to render the service, or to render it with less pecuni-
ary or social sacrifice, but on the wante of the government,
and the supposed fitness of the class to subserve the purposes
of the government with more efficiency than others. If all owe
tbe service, and it is for the common good, and there is the
usual provision that it may be rendered by substitute or com-
mutetion, it is not easy to see why men above forty-five years
of age, if able-bodied, may not be called upon as well as those
of less age. If not as able to endure the hardships of the field,
they may answer equally well for garrison duty or as details;
June, 1865.] Bbodhead v. Milwaukee. 721
and presomptiTely, they are better able to procure subetitutes,
for they have more generally accumulated property, or received
it by inheritance. If eubstitution is made an element of con-
scription, as it was by the law in question, the ability to pro-
cure a substitute may well be an element without regard to age;
and therefore when all above a certain age are exempt, they
are favored, and it is clearly equitable and just that they
equalize the burden by bounties to those who volunteer or are
drafted and serve, or by making provision for the support of
their families. On this equity, as well as upon the other
grounds named, rests the power of the legislature to provide
by taxation for state and local bounties, and under the system
of apportionments prescribed by Congress, by which each mu-
nicipality, election district, or county is assigned its proportion
of men, it becomes pre-eminently local taxation for local pur-
poses, according to the rule contended for by counsel.
But it is said that the act does not apply to cities, — that it
is applicable only to towns and villages. Cities are expressly
named over and over in almost every section, and the inten-
tion of the legislature to include them is so obvious that he
who runs may read and understand. I shall spend no time
ui)on this objection.
It is also said that the act is in conflict with the charter of
the city of Milwaukee, and impracticable in its operation. I
do not think that it is in conflict with the charter, or repeals
or modifies it in any particular. The charter remains the
same as before, and all the powers which then existed or could
have been exercised under it still exist and may now be exer-
cised. The act was a delegation of new and specific powers
to the qualified electors of the city, with a specific mode of ex-
ercising those powers, and in no wise affects or abrogates the
general provisions of the charter, unless it be in some particu-
lar or particulars contravening the special provisions of the
act, of which none were pointed out. No one can doubt the
power of the legislature to pass special acts for special pur-
poses without infringing upon the operation of other general
laws, or to except a particular class of cases from the provis-
ions of a previously existing general law without repealing
such law: Smith v. Hoyty 14 Wis. 252.
As to the act being inconvenient, injurious, or impracticable
in its operation, on account of the large number of voters who
might be assembled at one place on the day of election, I an>
swer, that that is an objection proper to be addressed to the
AM. DBC Vol. LXXXvm-^
722 Bbodhsad v, Milwaukee. [Wisoonein,
legislature, but not to this court. This court can. and when
properly presented must, deal with and determine questions
of the power of the legislature under the constitution; but it
cannot lay its hand upon or interdict a statute, or arrest its
operation, because such statute is either unwise, unjust, or op-
pressive, there being no question of legislative power involved.
The court is not the guardian of the legislative will, and can-
not protect the people from the inconveniences or hardships of
merely unwise or improvident enactments. The law may be
very bad in the respect complained of, but as it was for the
legislature to prescribe the time and manner of calling and
holding the elections, so it is for the legislature to apply the
remedy. And if the room at which the election is called is
small, inconvenient, or inaccessible to large numbers, the
electors, or a majority of those present, may adjourn to some
other place where these objections do not exist, making public
announcement thereof, and causing proper notice to be given
to voters who shall come afterwards. This power, I have no
doubt, is always possessed by the electors assembled on such
occasions, unless expressly taken away by statute. The
electors have this right as a power incident to all corporations
at common law, irrespective of statutory grant: Chamberlain
V. Dover^ 18 Me. 472 [29 Am. Dec. 517]; PeojOe v. Martin, 5
N. Y. 27; Ooodell v. Baker, 8 Cow. 289.
It has likewise been suggested that the legislature is pro-
hibited by section 3, article 11, of the constitution, fix>m provid-
ing for an election at one common poll, such not being the
usual course in cities, but that the votes must be taken in
wards or other lesser subdivisions. The object of this section
is obvious. It was to impose upon the legislature the duty of
restricting the power of taxation, assessment, borrowing money,
contracting debts, and loaning their credit, so as to prevent
abuses in assessments and taxation on the part of cities and
villages, and not to give the legislature power to organize cities
and villages, nor to prescribe the form of such organizations.
The power to organize cities and villages would have existed
without such provision, and the section is entirely silent upon
ihe form or mode of organization. It is a fundamental rule
in the construction of written constitutions that we are to be
governed by the purpose of the framers, and I do not see how
any one can look upon the section and say, from the language
employed, that it was the intention of the framers to bind the
legislature to any ancient or then existing form of organization.
June, 1866.] Brodhead v. Milwaukxx. 723
It 18 not often that constitational conyentions are engaged
upon such trivial and unimportant matters of form, and the
records of our convention do not show that any such question
was up or discussed. I can see no object in such prohibition,
and have always supposed, and still do suppose, that it was
left in the largest sense to the discretion of the legislature to
determine when and how cities should be organized, who should
be their officers, what their names of office, their powers, and
how elected, etc. I have always supposed, and still do, that
the legislature has full power to change or modify the provis-
ions of any of our city charters, as it may deem wise or ex-,
pedient, or to repeal them. Should the legislature to-morrow,
or at its next session, repeal the charter of the city of Mil-
waukee, and throw the territory into the form of a town or-
ganization, so that all the electors must vote at one poll, would
this court have power to arrest the operation of the act or de-
clare it void? Such an act might be most unwise and impru-
dent in itself, and most injurious in its effects; but I hold that
this court would have no power over it; and for the same rea-
son, I hold that we have no power over the present act
It may also be suggested that section 26 of article 4 of the
constitution has some influence upon the question. My an-
swer is, that the persons there spoken of are those engaged in
the service of the state. Our soldiers have been engaged in
the service of the United States.
Another objection is, that it is a delegation of legislative
power to the people. In reply to this, I refer to OUver^s Case^
17 Wis. 681, and the authorities there cited.
Still another objection is, that the whole power of levying
troops, organizing armies, fixing compensation, paying boun-
ties, etc., resides in Congress, and that the states can take no
action in the matter. This objection was urged and fully
met in the Pennsylvania decision. If Congress has the power
and may legislate to the entire exclusion of the states, — which
is very doubtful so far as state aid to the persons and families
of volunteers and drafted men is concerned, — still Congress
has not done so. The act of February 24, 1864, was framed
with direct reference to such state and municipal aid, and the
act of Congress and the act of the state, without the slightest
repugnance or opposition, go hand in hand together for the
more ready and perfect accomplishment of one common ob-
ject The propriety and legality of such assistance are ex-
pressly recognized in the third proviso of the seventh section
724 Bbodhead v. Milwaukee. (, ff iM)oiiaiD«
and the second proviso of the twentieth sectxtr ct the act of
Congress.
One more objection, and the last in the long c^tiilogne which
I shall notice, is, that the legislature did ntrt pursue the system
of division fixed by Congress. The bounties should have been
by wards to volunteers, to be credited to the wards respectively,
instead of the city at large, to be credited to each ward. How
this diminished the power of the legLcIature or could control
its action is not shown. I think it is ynry difficult to perceive.
The argument tends to show an abuse of power or lack of wis-
dom on the part of the legislature rather than a total want of
power, which last is the only one <hat can be addressed to
this court to defeat the operation of the act. It is said that
the residents of one of the wards hMJi filled or nearly filled its
quota at the time the vote was taken, and that it would be
unjust to tax them to fill the quotbo of the other wards. This
is somewhat low and selfish grouiid; but admit the apparent
injustice, still, if the court can se.d and the legislature could
see within the principles above stated that they had yet some
possible interest in filling the qt4)tas of the other wards, and
the legislature saw fit to tax th:)m for that purpose, the tax
mTist stand. In a city like Milw iukee, where all the interests
of the people, religious, moral, p.ilitical, social, and economic,
are so intimately connected and blended throughout, it is not
difficult to perceive such interest; and hence I think the oh*
jection must fall. It seems to ne that the system of con-
gressional subdivisions, adopted for convenience, has really no
infiuence upon the question, and that the legislature might
have provided for bounties from Jie state at large, or, as was
done in Pennyslvania and New York in some instances, from
counties, as well as cities and towns.
I think, therefore, that the orders refturing the injunctions
should be affirmed.
Cole, J., concurred.
DowNEB, J., delivered a dissenting #pinioQ.
PuBTOsss OF Taxation must bb Pubuo: See note to Amimwm v. Ktnm
Draining Co,, 77 Am. Deo. 66; iSftorpfest v. MajforHc t/PkUad^Ua, 60 Id.
769, and note 789.
PowBB OF Taxation is unbbb Lboiblativb Ck>NTBOL ahd DnoBBnoN:
8harpkBiY.M(^forete,qfPkacui€^phia,09AiiLl)eo.7S9,9^^ Wim
V. Hays, 56 Id. 362.
PovrxB OF Taxation mat bb Dblboatbd to MtmioiPAL and Pvbuv
GoRFORATioNlB: See nameroiis oases oited in extended note to iAi^or stc qf
BaUimare v. Siate, 74 Am. Dec. 592; ffarriaon v. Jliaymrqf VkUbwrg^ 41 Id. 632.
Jane, 1865.] Bbodhead'i;. Milwaukee. 726
Courts mat Pass upon Yaudtty of Laws, jadgmg them by tiie staa-
dard of the state oonstitation, when the legislature exceeds its powers in
their enactment: Pacific R, R. v. Oofcemor, 66 Am. Dec 673.
Act of Leoislatubb will not be Dbglaubd Void on Gbound of Poucnr,
Expediency, or Injustice: See nnmerous cases cited in note to Sharplesa ▼.
McBffor etc qf PhUadelpkiaf 69 Am. Dec. 789; or beoanse it is nnwise, impoli-
tic, or immoral: Donahoe ▼. RiehanUf 61 Id. 256.
Tax ought not to be Rendered Invalid bt Mere Non-oompliancb
WITH Some Direction of Statute notwithstanding which the tax may
have been entirely just and eqnal; or by any objection which does not go to
the very groundwork of the tax: MiBs v. OUaaon, 78 Am. Dec 721, and note
729.
Irregularities in Oonduct of Elechon, Effeot of: See People v. Cook,
59 Am. Dec. 451, and note 472; extended note to People v. BaUa, 83 Id. 749,
on elections, essentialei to validity, and effect thereon of irregnlarities in call-
ing, conducting, etc
iNjuNcnoNs to Restrain Collbotion of Taxes and Assessments: See
note to Holland v. Mayor etc qf Baltimore, 69 Am. Dec. 193-205, discussing
the subject at length.
The principal case was cited in each of the following authorities, and
to the point stated: Any direct public benefit or interest in promoting the
peace, good order, and welfare of society will sustain a tax. Charitable pur*
poses will support a tax. So claims founded in equity and justice in the
largest sense, and in gratitude, will support a tax. But the incidental bene-
fits resulting to the people of a town from the location therein of any private
business or institution will not support a tax: Curtie'e Adm'r ▼. Wh^pU, 24
Wis. 856. In order to justify a court in anestiiig the proceedings and de-
claring a tax void, the absence of all possible publio interest in the purposes
for which the funds are raised must be dear and palpable: Id. 357; and
Whiting v. Sheboygan etc. R. R. Co., 25 Id. 217, where it was held that a tax
for a private purpose is invalid; and that in the case of a railroad owned by
a ocrporation in whose favor the right of eminent domain may be exercised,
the publio use consists in the right of the publio to the carriage of persons
and property upon tender of a proper consideration, and in the power of the
state to control the franchise and limit the toUs; and that such a qualified
and limited public use will not support taxation for the purpose of raising
money to be donated to such a ooiporation. Taxation is the absolute con-
version of private property to publio use; and its validity rests on the use.
in legislative grants of the power to municipal corporations, the publio use
must appear. Such a delegation of power can be made for public purposes
only; and the validity of the delegation rests on the public purpose: Atimrney'
General v. Eau Claire, 37 Id. 438. The legislature may confer upon cities,
towns, and villages power to raise money by taxation to pay bounties to vol-
unteers in the military service of the United States, upon the ground that
claims for publio services, or expenditures founded in equity and justice, in
gratitttde or charity, will suppo^ a tax which is voluntarily imposed upon a
munieipality by a majority of the citizens thereof or by the consent of the
mnnicipalily evidenced in some other manner: 8ia;te v. Tappan, 29 Id. 672.
In Dniehart v. Town qf La Fayette, 19 Id. 688, chapter 39, Wisconsin Laws of
1864, entitled "An act to authorize towns, cities, and incorporated villages te
laise money by tax for the payment of bounties to volunteers for the military
of the United States, and to provide for the levy and collection ^ Vie
726 Emery v. Vboman. [Wisconsio^
nane," was, for tiie imacfOB given in the principal case, held to be yalid; and
the taxes levied under the proceedings of variooa town meetings, as stated in
that case, were held to be valid for the same roaoomi. The principal case
was indefinitely cited in Wahltchlagn^ v. Tcmm cf Uhert^^ 23 Wis. 3H and
critidsed in the dissenting opinion to B<mmd v. ^iieofiiBi OaiL R, R, Cb.» 4ft
Id. 579, as a judgment proceeding upon polity rather thaa npon prino^la.
Emery v. Vbomak«
[19 WisooHsiir, em.]
VAUDirr OF PnoGEiDDrcw wiosl Chaptxbs 64 and 65^ Bsvibkd QrATorm
OF WiaooHBiH, 1849. — Chapter 64 of said laws, providing for the ssle of
a ward's real estate for his maintenance or edncatioo, and ch^ter 65
thereof, providing for the sale of the same property for the payment of
his debts, had bnt slight di£ferenoes, and proceedings had entirely nnder
one statate or the other had to canform, probably, to the provisions
nnder which they were taken; bat where tiiey were had partly under
both statntes, as where a guardian, in 1860, made a sale of tiie rod prop-
erty of his ward, partly for the future maintenance and education of the
ward, and partly to pay debts and charges against the estate, such pro-
ceedings were held to be valid where they conformed to chapter 65, and
not to chapter 64. And such slight differences still exist under the
present revision: R. 8. 1858, c. 93, 94.
FOBMAL AfPROVAL OF GuARDIAK's BoHB is MuEUI FOBICALnT, AKD WaMT
OF It will hot Ltvalidatb his Salb of the ward's land* in a ooUatenl
action, attacking it on such ground, where the guardian has accounted
satisfactorily for the proceeds of the sale, and the purchase money has
gone to the benefit of the ward.
DimEOT IN Guabdian's Sale of ms Ward's Lands, in failing to sell the
lands in the order of the license, is cured by the confirmation of the saleu
Order of Court DntEonvo Sale of Ward's Lands to Raise Specified
Sum must be Construed to mean such sum in addition to the ezpensee
of the sale.
Sale of More Lands of Ward than is NBasssA&T to Raise Required
Suv does not affioct the validity of sales made before that sum is raised.
Appointmbnt of Guardian bt Distbiot Court of Tsbbitort of Wis-
consin, on an appeal from the appointment of another person, must be
regarded as valid under Revised Territorial Statutes 1839, section 46,
page 319, and the constant practice of the territorial courts.
Guardian's Bond, under Revised Tbrritobial Statutes of Wisoonsek,
1839, was Properly Given to "the territory of Wisconsin. "
Ejectment for the undivided half of lots 5 and 10 in block
92 in the city of Madison. Plaintiff proved that Thomas P.
Burnett died intestate in 1846, seised of said lots, and read
the deposition of Alfred Brunson, proving that the plaintiff,
married to one Emery when this suit was commenced, and
her brother, Thomas B., were the sole heirs of Thomas P. Bur-
nett. Brunson testified that he received letters of guardian-
June, 1865.] Emery v. Vboman. 727
fihip of said Mary and Thomas during their minority; that
he made application to the county court of Grant County for
license to sell their lands in Madison; that he filed his oath
and bond according to law as he understood it; that the bond
was approved by the probate judge, though he did not know
whether the approval was indorsed on the bond; that the
sureties in the bond were then and still are responsible; and
that the proceeds of the sale were expended by him in paying
taxes and supporting his wards. Defendant claimed title
under a sale made by Brunson as the guardian of the plain-
tiff and her brother, and offered in evidence a record of the
probate court of Grant County, and of certain appellate pro-
ceedings in the district court of said county. To the reading
of this record plaintiff's counsel objected for reasons: 1. That
the appointment of Brunson as guardian by the district court
was void for want of jurisdiction in said court to make it;
2. That said Brunson never gave any such bond as was re-
quired in order to assume the duties of said trust, and the
bond given by him for that purpose was of no force; 8. That
it appeared that said Brunson did not take the oath required
by law in case of a guardian selling lands of minors for sup-
port, etc., before fixing on the time and place of the sale of
the premises in question; 4. That the bond given on such sale
was not approved as required by law; 5. That the report of
sale in the record showed that Brunson did not sell the prem-
ises which he had license to sell, in the order prescribed by
the license, — omitting to sell lot 12 in block 2, and two other
lots in the city of Madison, ordered to be sold before the
premises in question in this action; 6. That the guardian had
exhausted his powers under his license, having raised the sum
authorized to be raised by it before the sale in question was
made; 7. That the proof of giving notice of the sale con-
tained in the record was not sufficient; 8. That the proceed-
ings were wholly irregular, insufficient, and void, and conferred
no authority on Brunson to make the sale in question. The
court overruled the objections, and admitted the record in
evidence. Defendant ttien proved due notice given by Brun-
son of the time and place of sale of the lots in controversy;
that said lots were sold at public auction to Delaplaine and
Burdick, who purchased them in good faith; and that at the
time of this suit they were held by the defendant as a pur-
chaser in good flEkith. The deed made by Brunson as guar-
dian to Delaplaine and Burdick for the lots in controversy
728 Emery t;. Vboman. [Wisconsii^
was admitted in evidence over the plaintifF's objection. Plain-
tiff then offered to prove that at the time of said .sale lot 12
in block 2, and lots 8 and 4 in block 88, in Madison, were
worth more than fifteen hundred dollars, and that if the lots
in Madison mentioned in the license had been sold in the
order therein mentioned, the said sum would have been raised
without a sale of the lots in controversy. The evidence was
objected to, and excluded by the court. Verdict for defend-
ant. Judgment thereon, and plaintiff appealed.
S. U. Pinneyj for the appellant.
Stevens and Lewis^ and Spaoner and Lambj for the respond*
ent.
By Court, DixoM, C. J. The sale of the real estate o( the
ward for his maintenance or education, and the sale of the
same property for the payment of his debts, are subjects sa
nearly identical, and so proper to be governed by one course of
proceeding, that it is difficult to define the wisdom or utility
of two statutes, one for the former and the other for the latter,
with such slight changes as are found in chapters 64 and
65 of the Revised Statutes of 1849. The same differences still
exist under the present revision: R. S. 1858, c. 93, 94. Why,
for instance, in the latter case but not in the former the pro-
ceedings should be examined by the probate judge, and the
sale confirmed if he shall find it to have been fairly conducted
and the sum bid not disproportionate to the value, but other-
wise rejected; or why in the former the guardian should be
required to take and subscribe the oath before fixing on the
time and place of sale, whilst in the latter he may do so at
any time before the sale, — is not readily perceived upon any
ground of reason or justice. Still, the law is so written, and
where the proceedings arc had altogether under one statute
or the other, I suppose they must conform to the provisions
under which they are taken. In this case, however, they were
had partly under both. The sale was in part to maintain and
educate the wards, and in part to pay charges against their
estate properly coming under the denomination of debts. In
such case, inasmuch as the proceedings cannot be valid in
part and in part void, my brethren are of opinion that it i&
sufficient if they conform to the provisions of the last act;
namely, that for the sale of lands for the payment o^ debts.
I must confess that I have some doubt about this, and still I
am not prepared to deny its correctness. I agree with them
June, 1865.] Embby v. Vboman. 729
fully that the provisions of the last chapter are much better
adapted to guard and protect the interests of the ward; but I
doubt, where there is to be a sale for all purposes, whether the
legislature intended that a compliance with these alone should
be sufficient. My brethren, however, are clear upon this
point, and it becomes unnecessary for me to express an
opinion.
Viewing it, then, as a proceeding under chapter 65, one
principal objection, that the oath was not taken before fixing
on the time and place of sale, is entirely obviated. The oath
prescribed by section 48 was taken and subscribed by the
guardian before the sale.
Other objections still remain, but none of them are suQi-
cient, in our judgment, to invalidate the sale.
The bond was filed, but not formally approved. It appears
in evidence that the bond then was and still is sufficient. The
object of the requirement was to secure the disposition of the
proceeds of the sale in the manner prescribed by law. It is
not pretended that they have not been faithfully applied and
fully accounted for by the guardian. The purchase-money
having gone to the benefit of the wards, they now sue to
recover back the land because the bond was not formally
approved. We think they cannot prevail upon any such tech-
nical grounds. It is at most but a mere informality not
affecting the validity of the sale.
The lands were not sold in the order of the license. This
defect, if such it was, was cured by the order of confirmation.
The same court from which the order emanated had in its
discretion the power to modify it, or to dispense with its strict
performance in the particular named. This was done by the
order of confirmation.
The lands sold were in excess of the sum authorized by the
license. Not so with respect to the lots in suit. The license
authorized a sale to raise the sum of fifteen hundred dollars.
Including the lots in suit, the bids amounted to but little
more than that sum. A fair construction of the order is,
that the guardian was authorized to raise that sum exclusive
of the expenses of the sale. The expenses amounted to con-
siderably more than the excess at the time these lots were
sold.
The appointment of the guardian was void, because the dis-
trict court of the territory had no power upon appeal to make
it. This objection is answered as well by section 46, page 319,
780 Booth v. Ablsman. [WiscoDfiin.
of the Revised Statates of the territory, where the jurisdictioii
of the district court, " Bittiog as a court of probate," is ex-
pressly recognized, as by what we understand to have been
the constant practice of the territorial courts. Great miscjiief
would ensue, and it is too late to revise and overturn the pro-
ceedings of the territorial courts upon such questions. The
same section of the territorial statutes answers the objection
that the bond of the guardian, as such, was not given to the
judge of probate in his official capacity. The statute required
it to " be given to the territory of Wisconsin."
Judgment affirmed.
Failctbx to Afpboyx OB FnjB OmciAL Bobd dobs not Avwnr m Va-
UUTT: See nameroDs cases cited in xkote to Peopte ▼. BarU^f S2 Am. Dm.
764^ on official bonda» when valid and when void.
QvASDiAS xnsT Take Statutobt Oath w Qrdxb to Bjoidsb kib Baim
OF Ward's Bxal Estate Valid: Cfooper ▼. SunderUmd, 66 Am. Dee. 62;
Fnmw V. Steenrod, 71 Id. 447.
Tftlbs of Pubobasebs in Qood Faith should kbveb be Ovebtwejih^
because of objections founded noon captious eriticiam: See note to Oib$im ▼.
BoU, 81 Am. Dec. 224
The pbingipal case was gitbd in Bhdbman v. Bamncmn, 22 Wis. 611, to
the point that proceedings of a guardian for a ssle of land for the eduoatioii
and maintenance of his ward were governed by section 64^ Wisconsin Revised
Ststutes 1S49; that it was essential to the validity of a guardian's ssle under
diat chapter that the gusidian's oath required by section 14 should be taken
before fixing on the time and.plsoe of ssle; and that if the oath was not so
an ovdsr of ooofinnatioa would not make the sals valid.
Booth v. Ableman.
raO WiSOONSXN, 2L1
Jtar ASi TO AflSBBS Toll Value of Goods iw Refleviw wfaeto the plead-
mgs sad evidence show that the party recovering is the general owner*
or is a bailee, and connects himself with the general owner.
JVBT ABE TO FdID OHLT VaLUE OF PASTY'S IhTEBEST WHO BbOOVBBS III
GtxPLEViK if the pleadings and evidence ahow that he has only a special
interest in the property, and that the general property is in the other
party.
Bbplevik, What Amount mat be Reoovbbbd in, wbebe Officeb Holds
Pbofebtt undeb Execution. — Where property is replevied from a
sheriff or marshal who holds it under execution, and who has only the
execution creditor's interest in it» the value oNthe officer's interest is
the amount of the execution, with interest and costs thereon; and should
he recover, the amount of his recovery will be limited to this amount,
where the value of the property is greater than the amount of tho exe-
oution.
Jane, 1865.] Booth v. Abi^bmak. 731
BhAnmww rs Bsplstzn mat Psovx nr Mhioatidh, m ih* defendant in
trespaas may, a return of the property, or a part <tf it^ to the defendant
after the suit was oommenced and before judgment.
Iv MrnoATioii ov DiOfAOBS, Patmxnts ok Judqmxst under which officer
had sailed goods on ezecuticn, though made after the eonmiencement of
a replevin suit against the officer to recover the same, shoold be admitted
in evidence for the platntiiff in that suit. Bat it seems that the plaintiff
ought not to be allowed to prove the payment of the judgment after the
soit was commenced, in bar of the defendant's right of recovery.
BuBOEV ov Pboov is xtfon DxnvDAHT TO PROVB Amoctzit bxiobb Hx oah
HAVX JuDOMXHT JS BxPLivzN for the value of the property and dam-
ages for its detention, where his answer in the replevin suit alleges that
he holds the goods as marshal or sheriff under an execution, et&, but
does not show the amount of the execution.
Replevin. On a former appeal {Booth v. Ablemanj 18 Wis.
495, cited in note to Booth v. Ableman, 84 Am. Dec. 713), it was
held that the defendants were entitled to judgment in the
court below for a return of the property (which had been
delivered to the plaintiff), or the value thereof in case a re-
turn could not be had. The plaintiff at the subsequent trial
declined to proceed, and the court of its own motion ordered
a judgment of nonsuit to be entered against him. Defend-
ants then read in evidence, against plaintiff's objection, certain
papers enumerated in the opinion infra. The jury found for
the defendants that the value of the property at the time of
the taking was sixteen hundred dollars, that the defendants
were entitled to a return of it, and assessed their damages for
the taking and detention at $858.99. Plaintiff moved to set
aside the verdict on the following grounds: 1. That the only
evidence of the value of the property was plaintiff's affidavit,
on which the same was taken by the sheriff; 2. That there
was no evidence of damage to defendants from the taking
etc. The motion was denied, and judgment rendered for de-
fendants against the plaintiff and the sureties on his replevin
bond for a return of the property or the value thereof, as de-
termined by the verdict, with the damages assessed for the
detention. From this judgment the plaintiff and his sureties
appealed.
Henry F. PrentisSy for the appellants.
/. E. Amoldf for the respondents.
By Court, Downer, J. This cause has been before this court
several times, and the former opinions of the court are to the
effect that the defendant might take judgment for the return
of the property replevied, and for the value in case a return
782 Booth v. Ablbman. [Wisoonsm^
could not be had. We ehall not, although we were urged oi»
the argument so to do, review or reconsider any questions
decided by the court on the former appeals, but shall confine
ourselves to questions respecting the regularity of the proceed-
ings in assessing the value of the property replevied and
damages for the detention thereof, and the rendition of judg-
ment.
At the trial or assessment, the defendants read in evidence
the affidavit of the plaintiff to prove the value of the prop-
erty, the return of the sheriff showing the taking and delivery
to the plaintiff of the property, and their answer showing thai
they claimed the same under and by virtue of a levy of an
execution issued by the United States district court against
the plaintiff. This answer is remarkable as entirely omitting
to state the amount of the execution or judgment on which li
was issued. This was all the evidence, and it is clear that the
value of the entire property only in the goods is proved. The
value of the special property of the defendants therein, by
virtue of the levy, nowhere appears either from any pleading
or evidence.
The plaintiff offered to prove that the judgment on which
the execution was issued had been paid, and that there was
not then anything due thereon. The court refused to permit
this evidence to be given, and the plaintiff excepted, and insists
this was error. To determine whether it was or not, we must
first ascertain what is the meaning of the statute (R. S., sec.
31, c. 132), where it provides for a judgment in fiavor of a
defendant in replevin for a return of the goods replevied, or
the value thereof in case a return cannot be had. Is this value,
for which he may have an alternative judgment, the entire
value of the property in all cases? Or is it, in those cases in
which the defendant has only a special property in the goods
replevied, the value of such special property? Are the defend-
ants in this case, if the execution under which they claim is
only one fourth the amount of the value of the property, and
a lien thereon to that extent is all the interest they have therein,
to recover the full value thereof? If the defendants, after
nonsuit, had resorted, as they might have done, to an action
of trespass or trover, they coidd have recovered only the value
of their special property in the goods at the time they were
taken, and interest on that value to the time of judgment.
We see no reason why a different rule should prevail in
replevin. If tiie defendants in this case should be permitted
June, 1865.] Booth v. Ableman. 733
to recover and collect a larger sum than is due on the execu-
tion, the excess they would receive for the benefit of the plain-
tiff, who might immediately collect the same of them. To
^ive such a construction as this to the statute would be to per-
mit the defendants to collect of the plaintiff money with one
hand which they must immediately refund to him with the
^ther. No such construction should prevail, unless we can
reasonably give no other.
It is evident that in assessing the value of the property,
whether the plaintiff or defendant recover, in case it cannot
be delivered to the party recovering judgment, the court and
jury are to be governed by the same principles. If the plead-
ings and evidence show that the party recovering is the general
owner, or is a bailee and connects himself with the general
•owner, the jury are to assess the full value of the goods. If
they show that he has only a special property in the goods,
and the general property is in the other party, they are to find,
as it appears to us, as the value of- the property only the value
-of the interest of the party recovering.
We think the true rule is, that where property is replevied
from a sheriff or marshal holding it under execution, and
tiaving no other interest in it than that of the creditor whom
he represents, if the defendant recovers, and the value of
the property is greater than the amount of the execution, the
amount of his recovery is limited to the amount of the execu-
tion, with interest and costs thereon. This is according to the
plain provisions of the statutes of some of the states, and of
the practice in others, under statutes the same as or similar to
ours: Jennings v. JohfMon^ 17 Ohio, 154 [49 Am. Dec. 451];
Noble V. Epperly, 6 Ind. 468; Scrugkam v. Carter , 12 Wend.
131; Fitzhugh v. Wiman^ 9 N. Y. 559; Seaman v. Luc^, 23
Barb. 240; Sedgwick on Measure of Damages, 501, 502. See
also, as bearing incidentally upon the point. Ward v. Henry^
15 Wis. 239; Pratt v. Donovan, 10 Id. 378.
This being so, it follows, as it appears to us, that the plain-
tiff might give in evidence payments on the judgment in the
United States court in mitigation of damages. It has been
•decided that the plaintiff in replevin may prove in mitigation,
as the defendant in trespass may, a return of the property or
a part of it to the defendant after the suit was commenced,
and before judgment: De Witt v. Morris, 13 Wend. 496. See
also Harman v. Goodrich, 1 Q. Greene, 13; Belt v. Worthingion,
Z Oill & J. 247. If the plaintiff could prove in mitigation of
734 Booth tk Ableman. [Wiflconsin^
damages the return of the goods to the defendants after the-
sheriff had delivered them to him, and thus defeat entirely
the judgment for a return, and leave the defendants only the-
right to judgment for damages for the detention, which are-
frequently nominal, we see not why he ought not to be permit-
ted to prove payment of the judgment, althou^ the payment
would extinguish the lien or special property of the defend-
ants in the goods replevied, and defeat a judgment for a return,
of their value. The plaintiff, perhaps, ought not to be allowed
to prove the payment of the judgment after the suit was com-
menced in bar of the defendant's right of recovery; but he-
might prove it in mitigation of damages, and thus reduce the
recovery of the defendants to nominal dami^es, unless there
should be circumstances to warrant exemplary damages. The
plaintiff did not offer to prove payment in bar of the right of
the defendant to recover, and if the testimony offered was-
admissible for any purpose, it should have been received. We-
are also of opinion that the* defendants ought to have shown-
the amount of the execution, either by their answer or by^
proof; and they not having set it out in their answer, the bur-
den of proof was on them to show it.
The judgment of the county court is reversed with oosts^
and the cause remanded for further proceedings.
Rkplsvin won Goods Taken ts Execction ok ArrAOHMEirT: See KeUog^
y. ChurehiHf 9 Am. Dec. 104, and extended note thereto 105-107, discoiwmg
the subject; Clark v. Skinner, 11 Id. 302; Philips v. Harrita, 19 Id. 166, note
174; Bruen ▼. Ogdm, 20 Id. 693, note 606; Dunham y. Wydsqf, 20 Id. 695,,
and extended note thereto 696-699; Johnson ▼. Camky, 61 Id. 762; AUm v.
Orary, 25 Id. 666; Overby v. McOte, 63 Id. 49; note to Rkhardmn v, Beed^
64 Id. 80; extended note to Van Dreaor y. King, 75 Id. 646; note to Booih v.
Ableman, 64 Id. 713; Deamum v. BlaMum, 60 Id. 160; Spring y. Bcmrlandr
54 Id. 243.
DEncNDAifT 121 RxpLEYnr IS ENYnxBD TO JuDGMEHT for yalae of prop-
erty, when: See note to Parmers* L. A T, Co, v. Commercial Bank (/"Raeine^
82 Am. Dec. 696.
PlUNCIPIJES COKTAINBD IN SbCOND AND FiFTH SECTIONS OF StLIJLBI78»
supra, have been applied in troyer and trespaas. Thus the owner of a special
interest or property in a chattel can recoyer in troyer only the value of that
interest against the general owner: See note to Spoor y. Holland, 24 Am. Dec
39. And in trespass de bonis asportatis the defendant may giye in mitigatioib
of damages that the goods did not belong to the plaintiff, and that they hay*
come to the use of the owner: Squire v. Ilollenbaek, 20 Id. 506.
The principal case was otted in each of the following antborities, and>
to the point stated: Irrespective of any statute, if it appean that the party
recoyering in replevin has only a limited or special property in the gooda in^
controversy, the general property being in the other party, the jury shooUi
June, 1865. J Railroad Co. v. Railroad Co. 735
asseas only tlie valae of tba ipeeial interest: Burke y. BMiard, 4tl Wis. 38.
While the statate provides tluit the Jury shell assess the valne of the prop-
erty in replevin, that is merely a basis of recovery in ease a delivery cannot
be had. Hie intent of the statate is to fix the vidae that the plaintiff is en-
titled to recover; thus, in case of a lien or other special interest, the value
to be fixed woold be the amount of that lien or interest: Bingh v. Siohneider,
24 Id. 302. A claim for charges upon the property should also be deter-
mined by the jury: Warner v. Htmtf 90 Id. 202. But when a return of the
property may be awarded as an alternative, with judgment for its value, then
and only then should the interest of the successful party be ascertained iu
6xing the value of his special interest^ which is to be the Umit of such judg-
ment: Woodruff y. Khg, 47 Id. 266. The principal case was not considered
conflicting mth BatUa v. ffamUn, 22 Id. 674, where it was held that in
replevin against aa offiosr, bis leoovecy, if a return cannot be had, is limited
to the value of his i^ecial interest in the property, which before judgment in
an attachment soit mnst be taken to be the sum specified in the writ^ with
interest^ and the probaUs costs of such suit
MiLWAUKRB AND Sx. PaUL R R Go. V. MlLWAU*
KBB AND Minnesota R R Go.
(90 WisooKSiif, 166.]
JranDDiOTioN 0w Stixb Ooxtbt wbsrb Pbopxbtt is IK Hands of Rx-
onyxB ApponmD bt Fbdxbal Ooubt. — A state court has no juris-
diction of an action to foredloee a mortgage, or to avoid or set aside an
alleged foreclosure and sale by the mortgagee under a power, where the
premises were^ at the commencement of the action, in the hands of a re-
ceiver appointed by a federal court having jurisdiction to make such
appointment; and it makes no difference whether the lien which sudi
receiver was appointed to enforce was prior or subsequent to that sought
to be enforced in the state court
AcnoN to foreclose a railroad mortgage, and to have a re-
ceiver appointed, etc. The complaint alleged the making of
bonds for two millions of dollars by the La Crosse and Mil-
waukee Railroad Company, in 1858, with interest coupons at-
tached, and the execution as security therefor of a mortgage or
deed of trust running to William Barnes, and embracing the
whole road of said company from Milwaukee to La Crosse, with
all the real property connected with said road, including lands
granted or to be granted; all its rolling stock, franchises, and
all choses in action which the mortgagor company might own
or have an interest in on the day of its first making default in
the payment of said bonds. Said mortgage was delivered and
recorded. It was then alleged that said bonds to the amount
of $1,300,000 had been delivered in payment of said company's
debts, and that a large number of them had passed into circu-
736 Railroad Co. v. Railboad Co. [WisconBin,
lation, and were held by bona fide purchasers; that plaintiff was
the lawful owner and holder of sixty-two of these bonds, the
numbers being specified, amounting in the aggregate, exclusive
of interest, to $37,400; that said La Crosse and Milwaukee
Railroad Company made default in the payment of the coupons
which became due January 1, 1859, and all subsequently fall-
ing due, making the amount of interest due and unpaid on
plaintiff's coupons $15,708; that plaintiff had notified Barnes
that it was the holder and owner of said sixty-two bonds, that
default had been made thereon, and that plaintiff had re-
quested him to proceed and foreclose said mortgage or deed of
trust for the use of the holders of said bonds, and to pay over
to the plaintiff its proportion of the proceeds, offering to in-
demnify him, etc.; but that said Barnes neglected and refused
to take any steps to foreclose said mortgage. It was then
averred in the complaint that said Barnes gave out and pre-
tended that said mortgage or trust deed had been foreclosed
by him, and the mortgaged premises sold by him at the court-
house in the city of Milwaukee on May 21, 1859, in pursuance
of the power therein granted; that he had become the pur-
chaser for the benefit of the bond-holders secured thereby at
the sum of $1,593,333.33; that afterwards, on or about May
23, 1859, the owners and holders of a portion of the bond^ se-
cured by said mortgage or trust deed proceeded to organize a
railroad company, elected directors, and took the corporate
name of the Milwaukee and Minnesota Railroad Company;
that Barnes then conveyed to said pretended company all the
mortgaged premises so purchased by him; and that from that
time said last-named company had assniMd to be and acted
as a railroad company, and to have succeeded to the property
and franchises of the La Crosse and Milwaukee Railroad Com-
pany. The complaint, however, denied the regularity and
legality of said pretended foreclosure, for various reasons;
among which was that said sale and purchase by Barnes was
without authority, that said pretended organization was un-
authorized, and that Barnes was unauthorized to bid in the
premises. It was alleged t!uit the title still remained in the
La Crosse and Milwaukee company; that nothing had ever
been paid or received on plaintiff's said bonds in consequence
of such pretended sale; and that the holders and owners of
said bonds owned by the plaintiff had never authoriaed or
ratified said sale. The complaint also alleged that on Decem-
ber 31, 1856, said La Crosse and Milwaukee Railroad Com-
June, 1865.] Railroad Co. v. Railroad Co. 787
fiany had executed a mortgage or deed of trust to three trustees,
OD all that part of the mortgaged premises above described
lying west of Portage City, to secure certain other described
bonds; that said mortgage, etc., was a lien on said premises
prior and superior to that created by the Barnes mortgage;
that it was foreclosed January 13, 1862, in the district court of
the United States for the district of Wisconsin, by suit com-
menced December 5, 1859, and the premises sold by the mar-
shal April 25, 1863, and the sale confirmed, whereby the plain-
tiff herein, and all other persons claiming under the Barnes
mortgage, were barred of all lien upon and equity of redemp-
tion in said mortgaged premises west of Portage City. The
complaint then alleged that the La Crosse and Milwaukee
Company was utterly insolventy and that on June 11, 1860,
Hans Crocker had taken possession of all the property of said
company as receiver, to which office he was appointed by said
district court, and that as such receiver he still held possession
of all of said road, etc., except that portion which had been
sold as aforesaid by the marshal under the decree of said dis-
trict court. It was then alleged that the mortgaged property,
subject to prior encumbrances, was wholly inadequate to the
payment of the bonds secured by the Barnes mortgage; and
that the plaintiff brought this action for the benefit of itself
«nd all other bond-holders, etc. Prayer: that the amount
due the plaintiff and the other holders of said bonds be ascer-
tained; that said mortgage or trust deed to Barnes be fore-
closed, and the premises sold, and out of the moneys arising
firom such sale said bond-holders be paid, etc.; that the pur^
chaser at such sale be let into possession of the premises, and
the defendants be barred, etc.; that said pretended foreclosure
and sale made by Barnes, and the conveyance from him to the
Milwaukee and Minnesota Railroad Company be vacated, and
that it be adjudged that said last-named company is not the
owner of the equity of redemption in said premises, and has
no title thereto; that a receiver be appointed to take possession
of said mortgaged property, and operate, manage, and control
the road, and receive the revenues thereof during the pendency
of this action; and for general relief. The Milwaukee and
Minnesota Railroad Company, and two other defendants, sub-
sequent encumbrancers, demurred to the jurisdiction, and also
on the ground that no cause of action was stated, and that the
plaintiff was a corporation, having d9 right to buy or deal in
Am. Dbc Vol. LXXXVm— C7
788 Railroad Co. t^. Railroad Co. [Wisconam,
said bonds. From an order Bastaining the demurrer the plain-
ti£f appealed.
John W. Caryy for Hie appellant.
Matt. H. Carpenter ond H. B. Orton, for the res^ndent.
By Court, Cole, J. We are of the opinion that the order
iqypealed from in this case must be affirmed for the objection
taken as the first ground of demurrer. That objection is, that
it appears upon the face of the complaint that the circuit court
oif Milwaukee County has no jurisdiction of the subject of the
action, which is the railroad and other property therein men-
tioned, for the reason that the same is in the possession of the
United States court by its receiver. This point we think well
taken. The complaint certainly shows in the clearest manner
that Hans Crocker, as receiver, on the eleventh day of June,
1860, took possession of the railroad of the La Crosse and Mil-
waukee company, together with its rolling stock and all other
property, under the foreclosure proceedings in the United
States district court, and that he still holds possession. It
likewise appears that the receiver was appointed under a
mortgage prior in date and superior in equity to the Bame»
mortgage, which the plaintiff asks to have foreclosed for its
benefit and the benefit of other bond-holders under that mort-
gage. Now, is it not perfectly obvious that there can be na
foreclosure and sale under the Barnes mortgage without di-
rectly interfering with the rights or possession of the receiver?
The relief prayed for in the complaint is, that the amount due
the plaintiff on its bonds, as well as all other bond-holdera
under the mortgage to Barnes, be ascertained and determined;
that the said mortgage be foreclosed, and the premises therein
described be sold under the direction of the state court; and
that the purchaser at the sale be let into the possession of the
mortgaged premises. How can any such relief be granted
without disturbing the possession of the receiver? Should the
state court, for the purpose of enforcing a later encumbrance,
proceed to sell property already in the care and possession of
another court, by its receiver, to satisfy a superior mortgage?
We were referred to a class of cases on the argument which
hold that any attempt by a person having an outstanding
right or title to disturb the possession of a receiver would be
considered a contempt of the court appointing such receiver^
and that even when a party is asserting a prior legal right
over the property, he should ask and obtain leave of the tii*
1865.] Railroad Co. v. Railroad Ck>. 739
buual appointing the reoeiTer before bringiDg hia aotion, others
wise he will be liable to be adjudged in contempti and pun-
ished accordingly. The reason given for this rule of practice
is, that unless the court having possession of the property is
permitted to retain it undisturbed, and administer upon it,
nothing could be more easy than to {urevent the execution of
the decree by persone having or pretending title to such es-
tate: See the authorities cited on the brie& of the counsel in
this case; and also Angel v. Smithy 9 Ves. 336; CJiaiUavque
County Bank v. Ridey, 19 N. Y. 870 [76 Am. Dec. 847]. If
this rule obtains in respect to one asserting a paramount right
to the property in the possession of the receiver, the reason of
the rule certainly applies with stronger foroe to a party seek-
ing to enforce a confessedly inferior lien.
The counsel for the plaintiff admits that the principle is
perfectly well settled that when a receiver has been appointed
by one court to take possessioti of property, no steps can be
taken in another court which will affect the title or possession
of the receiver. And this concession would seem to be fatal
to the action. For, as already observed, if there should be a
foreclosure and sale under the Barnes mortgage, surely the
purchaser at «uch sale could not be let into the poseeesicm of
the mortgaged property witiKmt taking the possession from the
receiver. And that this should not be done, particularly where
the receiver is in possession under a prior encumbrance, re-
sults from the most obvious legal principles.
It is attempted, however, to avoid the application of the rule
of practice just referred to, by insisting that it is one object of
the suit at bar to inquire into the regularity of the foreclosure
already made by the trustee, Barnes, and to set aside and va-
cate that foreclosure, and the conyq^anoe made by the trustee
to the defendant company. And it is said that the court be-
low should take jurisdiction for the purpose of determining
and settling these questions, and then, if there is any doubt
about its right to enforce its judgment while the receiver is in
possession, it should direct the party to apply to the court in
which the receiver is appointed, for leave to execute its judg-
ment. But such litigation in the state courts, if not anoma-
lous, would manifestly be fruitless and inconsequential, while
the railroad is in the possession of the receiver. For, suppose
the state court should determine that the sale made by Barnes
was for any reason invalid and of no effect, yet it could not
proceed and foreclose the Banes mortgage by selling the morU
740 Railboad Co. v, Ra&boad Co. [WisooDfliii,
gaged premises. Or if it should sell, it could not place its
purchaser in possession without disturbing the possession of
the receiver already appointed, and therefore the litigation
would be of no avail. It seems to us, the more appropriate
tribunal for settling these rights is the United States court,
which has already taken the possession and control <|f the
railroad property by its receiver, and which, in distributing
the fund, can fully protect the interests of all parties. If there
is any money which can properly be applied in payment of
the bonds secured by the Barnes mortgage, there is no diffi-
culty in the United States court applying it upon those claims.
It is fully competent to ascertain and settle the rights of the
parties, and distribute the funds among those entitled to them.
The order of the circuit court sustaining the demurrer is
affirmed.
Dowmca, J., took no part in the decision of this case.
Rkjbivkb's Posbmsion wnji bb PBoraoRD bt Ooubt: AWam^ Ck^ Ba$ik
v. Scharmarhomf 8S Am. Den. 651; and the poeseasioli of a nilroad by receiver
appointed by court cannot be regarded as the poeseeaion of the railroad com-
pany: Ohio etc R. R. Co. ▼. DavU, S6 Id. 477.
I Statb Coubt gakhot iHTBBnEBB WITH Fbdbbal Pboobsb: See notes to OU-
man v. WiWams, 76 Am. Deo. 223; nor the federal ooorte with state proeeai.
where the state coorts have acquired jnriadiction: State v. Batkdder^ SO Id.
410, and note 423.
Onb Ooitrt gannot Takb PBonmrr rok Oustodt of Aboihbb bt Aht
PBOOB88: See note to MwMon v. Earrmm^ S5 Am. Deo. 81&
MlLWAUKEB AND MINNESOTA fi. R Go. V. MIL-
WAUKEE AND Western R R Co.
[20 WlBCOKSIK, 174.1
Right to Filb Bill to Sbt asidb Lboal Ibbibumbiit bob Fraud com-
mitted npon assignor is not assignable; so a right of action to set aside
a release from the obligation of a covenant^ on the groond that each re-
lease was fraadulently procured, cannot be Msigned by the corenantee.
Rjklbase Fraodulbntlt Pbooured fbom Obligation of CovBNAirr la kot
Void, but only voidable at the election of the covenantee by an affirmative
act on his part, as by bill in eqnity.
Even if Rights of AcnoN abb Pbopkb SuBjaon of Chattbl Mobtqagb»
it is doubtful whether such a general description of them as " all caosee
of action, demands, and choses in action, of whatever natnre, " etc., in the
case of a railroad company having large property and nnmerooa business
transactions, is sufficient to transfer them to the moriigagee.
June, 1865.] Railroad Co. t^. Railroad Go. 741
Baiol — Ih AiiT Bvxnr, Suuh RraBTs ov Aonoir will hot Pam bt Balm
wraB Chattsl Movtoaob nnleas a ipecifio and certain deeignation
thereof is giveh in the notice of tale, ao that bidders may know what
they are aboat to purchase, nor unless the price bid is in some measure
dependent on the existence of the respective rights of action mortgaged.
OoiiFLAiirr TO Eniobob Riobts or AonoN Obtaiivbd uhdbr Orattbl-
MOBTOAOB 8alb» where such complaint does not aver speoificslly that
BBch choses in action were sold at the f oredoeare of the mortgage, nor
that the price bid for the property was in any way dependent upon the
eodstence of the rights of action mortgaged* does not show that the plaLi*
tiff has a ri^^t to maintain the aotioo.
Plaintiff in this action sought to avail itself of certain
covenants of the defendant company in a deed of indenture
entered into between the latter and the La Crosse and Milwau-
kee Railroad Company, to whose rights in that behalf plaintiff
claims to have succeeded. The complaint alleged the execu-
tion by the La Crosse and Milwaukee Railroad Company, in
1858, of mortgages or trust deeds to William Barnes, as set
forth in Milwaukee and St, Paid R. R. Co. v. Milwaukee and
Minnesota R. R. Co., ante, p. 735. The La Crosse and Mil-
waukee Railroad Company divided its railroad into three
divisions, and mortgaged two of them for one million dollars.
It sold one of the mortgaged divisions to the defendant com-
pany, and that company assumed and agreed to pay two
hundred and eighty-three thousand dollars of the mortgage
debt. Afterwards, the La Crosse and Milwaukee company
mor^aged the whole line, consisting of the two remaining
divisions, for two million dollars. The latter mortgage was
made expressly subject to the one-million-dollar mortgage.
The two-million-dollar mortgage, known as the Barnes mort-
gage, was foreclosed, the mortgaged property was bid off at the
foreclosure sale by the bond-holders for whose security it was
given, and the purchasers thereupon organized the plaintiff
company. The defendant failing to pay the two hundred and
eighty-t^ree thousand dollars as agreed, the plaintiff brought
this action to set aside a supposed release of the defendant by
the La Crosse and Milwaukee company from the payment of
such money; to sequestrate the earnings of defendant's rail-
road towards the payment thereof, and for a sale of such rail-
road, and the application of the proceeds to the same purpose.
Said release was alleged to have been obtained through the
fraud and misrepresentations of one Alfred Noxon, who was
largely interested in the stock and property of the defendant
company, but who was one of the directors of the La Croese
742 Railuqao Go, v. Rail^om) Ca [Wiaqooam^
and Milwaukee oompany. A demorrer to the ocMBplaint, as
not stating a cause of action, was overruled, and the defendant
appealed. Other facts are sufficiently stated in the opinion.
EfMtyonB and Kan Dyfe, for the appellanl
Matt. H. Carpenter, for the respondent
By Court, Golb, J. It is not at once obvious upon what
ground the plaintiff below is proceeding in this action. Iliere
are some allegations in the complaint which would authorize
the inference that the plaintiff company, because it is largely
oompoeed of ereditors of the La Crosse and Milwaukee Bail-
road Company, and has acquired the property bid in by the
trustees at tiie sale under the Barnes mortgage, claims to have
the right to object to and set aside all conveyances, negotia-
tions, sales, and transfers which have been made or suffered by
the La Crosse and Milwaukee oompauy, with intent to defraud
its creditors; and more particularly, that it has the right to
take advantage of the alleged fraudulent acts of Nozon in pro-
curing the deed of release mentioned in the ninth paragraph
of the complaint.
Now, admitting that the feots there ajleged present a caae
which would entitle the La Crosse and Milwaukee company
to have the release set aside on account of these acts of fraudu-
lent concealment by one of its direotore of his interest in the
defendant company, and assuming that the frother feet appears
that this right of action has been assigned by the Ia Crosse
and Milwaukee company to the plaintiff, the question would
then arise, whether the release could be avoided on the appli-
cation of such plaintiff, the La Crosse and Milwaukee com-
pany making no complaint of the fraud whatever. Li other
words, is this mere right to litigate the question, and to set
aside the deed of release on account of fraud practiced upon
the assignor, a subject of assignment and tran^r? and will 4
court of equity allow the assignee to stand in the shoes of tht
assignor in respect to the remedies? On the part of the eouo-
sel for the appellants, it is insisted that in whatever light thasi
matters in the complaint are viewed, whether Noxon ba
charged with actual or constructive fraud, at most they merely
show a right of action in the La Crosse and Milwaukee com-
pany,— one which could be asserted or not, at its option, but
by no one else claiming as assignee or grantee; aud that tbt
principle was so decided in the case of Oraekef v* Belh^fp^
6 Wis. 645 [70 Am. Dec. 489]. In that caas, BoUangM WM
June, 1866.] Railboad Co. v. Railroad Oo. 743
alleged to have imposed upon and defrauded ope Casey in ob-
taining a conveyance of land. Crocker, as Casey's subsequent
grantee, sought to avoid the former conveyance for the fraud
perpetrated upon the grantor; and it was held by this court
that the bill could not be maintained. In Ptosaer v. Edmond$,
1 Younge & C. 481, will be found a very interesting and satis-
factory discussion of the question whether the right to file a
bill to set aside a legal instrument for fraud committed upon
the assignor is assignable; and it is held that it is not. A ref-
erence to these authorities is all which pnd)ably need be said
at this time in regard U> the allegations above cited, and upon
the point whether the plaintiff company could avoid the re-
lease for the alleged fraudulent act of concealment of Noxon,
even if this right of action had been assigned to it by the La
Crosse and Milwaukee company.
And further, whatever might be the inference drawn from
some averments in the complaint, the counsel for the plaintiff
company, in the argument filed, does not place its right to re-
cover upon that ground. But he insists, as the legal result of
the various matters stated in the complaint, that the plaintiff
company has the right to have enforced the various covenants
contained in the indenture known as exhibit 8, as against the
defendant company. This indenture was entered into on the
twenty-fourth day of December, 1857, between the La Crosse
and Milwaukee Railroad Company of the first part, and the
Madison, Fond du Lac, and Michigan Railroad Company of
the second part. The corporate name of the latter company
has been changed by different acts of the legislature, until it
has become known as the Milwaukee and Western Railroad
Company, the defendant company. By this indenture, the
La Crosse and Milwaukee company sold and conveyed to
the defendant company that portion of its road known as
the Watertown Division, together with the lands granted by
Congress appertaining to that division. At this time there
were various liens upon the road of the La Crosse and Mil-
waukee company, among which was a mortgage for one mil-
lion dollars, covering the division from Milwaukee to Portage
City and the Watertown Division. As a part consideration
for the conveyance of this last road to the defendant com*
pany, the latter assumes the payment of two hundred and
eighty-three thousand dollars of the one-million mortgage,
with interest thereon, as the same, interest and principal,
should mature; and also enters into the oovenants and agree-
744 Bailboad Co. v. Railroad Co. [Wisconsin,
ments with the party of the first part, which are set out in the
foregoing statement of the case: 20 Wis. 177, 178.
It is alleged in the complaint that the defendant company
has failed to keep these several covenants; and the plaintiff
company claims the right to have them enforced in its favor;
that it be let into the possession of the defendant's road, and
be permitted to proceed and foreclose the rights and interests
of the defendant company in the same as provided in the
above stipulations. If the plaintiff company has a right to
this relief, it must grow out of the following matters stated in
the complaint: In June and August, 1858, the La Crosse and
Milwaukee company made a mortgage and supplement to se-
cure two million dollars of bonds to be issued thereunder,
to one Barnes, as trustee, whereby the road direct by way of
Portage from Milwaukee to La Crosse was conveyed in mort-
gage, with all its railroad property, real and personal and
mixed, with its franchises, lands granted for the purpose of
completing said road by Congress and the state legislature,
and '^ also all and singular the stock, railroad or other bonds,
bills of exchange, promissory notes, accounts, causes of ac-
tion, demands, and choses in action of whatsoever nature
which may be owned, or in which the said railroad company
may have an interest, on sucli day as the said railroad com-
pany may first mak^ default in the payment of the interest
or principal, or any part thereof,'' which might thereafter be-
come due on the bonds issued under the mortgage. In Feb-
ruary, 1859, the La Crosse and Milwaukee company having
made default in the payment of a part of the interest due
upon the bonds issued under this mortgage, the trustee, un-
der the power of sale in the mortgage, proceeded and fore-
closed the same by selling '' all property, rights, privileges
franchises, things in action, aud other things in said mort-
gage and supplemental mortgage to him, said Barnes, de-
scribed." It appears that Barnes, no other person or body
having made a bid, purchased the property -above described
for $1,593,333.33, for the benefit of and in trust for the hold-
ers of the outstanding bonds secured by the mortgage. After-
wards, on the organization of the plaintiff company, principally
by the holders of said bonds, Barnes conveyed to it all the
property and things by him '' purchased as aforesaid." Now^
although it was expressly stated in the Barnes mortgage that
it was subject, among other liens, to the ** amount of one
million dollars," secured by a mortgage on the eastern divis-
Jime, 1865.] Railboad Co. v. Railroad Co. 745
ion of the road, yet, since the mortgage to Barnes, purported
to convey all *' causes of action, demands, and choees in ac-
tion, of whatsoever nature," which might be owned by the
La Crosse and Milwaukee company, or in which it might be
interested, it is claimed that by virtue of that language, and
the foreclosure of the Barnes mortgage and conveyance by
the trustee as above named, the plaintiff company is now the
actual and legal owner and equitable assignee of all the cove-
nants in the indenture entered into between the La Crosse and
Milwaukee company and the defendant company-
It will be seen, however, that there is no reference whatever
in the Barnes mortgage to the indenture existing between the
La Crosse company and defendant; and I have very great
doubt whether a cause of action growing out of its stipulations
in favor of the La Crosse company would pass under the
vague and indefinite langui^e there employed. The subjects
in this clause are described as being all *' causes of action, de-
mands, and choses in action, of whatever nature, which may
be owned, or in which the La Crosse company may have an
interest," on such day as it makes default in paying the prin-
cipal or interest on the Barnes mortgage. It seems to me that
it would be very difficult to tell from this description upon
what this part of the instrument was to operate. What causes
of action, demands, and choses in action were actually in-
tended to be conveyed? A railroad company, in building and
operating two or three hundred miles of road, must necessa-
rily be engaged in a vast variety of business transactions.
And can it, in this indefinite, general, and uncertain manner,
transfer by way of mortgage all such causes of action as may
exist or subsequently accrue to it growing out of those trans-
actions? See Chynoweth v. Tenney^ 10 Wis. 897. Assuming
that causes of action are proper subjects of a chattel mort-
gage, will such a general description of them in the mortgage,
be sufficient to transfer them to the mortgagee? It may be.
impracticable to set forth in a chattel mortgage with precision
all the articles embraced in it, so that without reference to
other evidence or sources of information one could tell by an
inspection of the mortgage the property intended to be con-
veyed. But safety and sound principle would seem to require
that the description of the property should be such as to en-
able third persons to identify it, aided by inquiries which the
mortgi^e itself indicates and directs. LatDrence v. Evarts^ 7.
Ohio Si 194, lays down this rule, and it is certainly founded'
746 Bailbojjd Ckk v. Railroad Co. [Wisoonain,
in good 86n0e. In addition to the anthoritioB referred to in
the opinion in that case, sea BvUooi v. WiUiamSj 16 Pick. 83;
&imard v. EaUm^ 2 Cosh. 294; Qotdding^Y. 8wett, 13 Gray, 517;
Kemp ▼. Cbmley, 8 Duer, ); Crow y. tMyy 5 Mo. 484; New-
man v. Tyme^on, IS Wia. 172 [80 Am. Dee. 735]; Oiia v. SiU,
8 Barb. 102; Window v. Mewhant^ Ins, Go., 4 Met. 806 [38
Am. Dec. 868]. It would be uttevlj impoesible, by any pro-
ceea of investigation, to tell, at tt&e time the Barnes mortgage
was exeouted, what cauaea of aetion might accrue to the La
Crosse company, and probably very difficult to ascertain what
had already aocrued. But the stipulatiims in the instrument
executed by the defendant company might easily have been
described in the mortgage if it had been intended to transfer
them.
It is likewise claimed by the counsel for the defendant
company that in no possible eveni could the plaintiff- ocunpany
have the benefit of the covenants above cited, since the Barnes
mortgage was made expressly subject to the million mortgage.
There are no &cts or circumstanoes, it is said, stated in the
complaint to take the case out of the ordinary rule which
governs the rights of purchasers of an encumbered estate.
And since the Barnes mortgage was made iu express terms
subject to the million-dollar mortgage, this, it is argued, fur^
nishes indubitable proof that it was the intention of the La
Crosse company to deprive those claiming under the Barnes
mortgage of any equity which might otherwise have sprung
from the circumstance that the million mortgage covered the
Watertown Division, and the defendant company had en-
tered into a stipulation to pay a portioi^ of it. Whether his
position is sound in view of the matters stated in the oom-
plaint, or whether, indeed, the clause in the Barnes mortgage ia
not too indefinite and uncertain to embrace this covenant,
need not now be definitely decided, inasmuch as we think the
complaint is bad on another ground.
There is no allegation in the complaint that the covenants
in this indenture were sold at the foreclosure of the Barnes
mortgage, or that the price which was bid for the property
was in any wise dependent on the existence of these covenants.
It is averred, to be sure, that the trustee sold at public auction
all the property, rights, privileges, franchises, things in action,
and other things described in the mortgage. Is it permissible
that choses in action, instruments in writing, should thus be
exposed for sale and swept away in this loose and unoertain
June, 1866.] Railroad Co. v. Razlboad Co. 747
manner? What purchaser could bid underetandingly when
property is thus offered for sale without any designation or
•description? Obviously, a bidder would not know, and would
Imve no means of ascertaining, wliether the choaes in action
were worth a thousand, a hundred thousand, or a million of
•dollars. The mortgage, being recorded as a real estate and
not as a chattel mortgage, would probably not be even con-
structive notice to third persons as to the property covered by
it. No person, therefore, attending the sale could know wh^^t
price to bid, or how to regulate his judgment if there was no
-specific and certain designation of the property offered for
«ale. In case of deflault of payment of any part of the inter-
•est or principal for fifteen days, the trustee was authorised to
take possession of the mortgaged property, Siud to sell it at
public aucti<m, after giving the stipulated notice. A sale at
4iuction, and upon notice, implies that there is some designa-
tion of the thing offered to be sold, so that persons whom the
law invites to such auction may be able to know where and
what is the property they are about to purohase. In case of
celling a railroad, it might be suflSdent to designate the prop-
•erty sold as a railroad between given points, with its rights,
privileges, and firanchises. But it seems to me if choses in
action and legal instruments are to be sold, there ought to
he some description or designation of them. Otherwise such
«ales will be a mere idle ceremony, resulting frequently in
{jeat injury to the debtor company, and leading to the most
fraudulent speculations. If the covenants in this indenture
were actually sold by the trustee, and he bid in reference to
them, it should be so averred. If the trustee did not seU
them, then clearly the plaintiff company shows no reason why
it should have the advantage of them. For conceding that
the mortgage embraced them, yet if they have not passed to
the plaintiff company by the sale and conveyance of the
trustee, then manifestly that company cannot enforce the
•covenants in its favor. It claims to be the equitable and
legal owner of these covenants, but fails to show title.
The demurrer to the complaint was therefore improperly
overruled.
The order appealed firom is reversed, and the cause re«
manded for further proceedings.
DowNKB, J., took no part in the decision of this case, having
^been of oonmael respecting matters involved in it
748 Railroad Co. «. Railroad Co. [Wifloonsin.
AflnovABEUTT OF MxBx RiOBT TO FiLB BiLL iv EqujiTT: See MankaU
T. Meant, 66 Am. Dec 444, and extended note thereto 449-^1, diHcnwing.
thesabjeet.
What Riobis ov Aonov axb Absiohablk: McKee t. Judd, 64 Am. Dec
616, and note 616; nnmeroos oeaes cited in extended note to Zahristie t.
8nM, 64 Id. 660; Hcfbku ▼. Upthtr, 70 Id. 876; Weire ▼. Cit^ </ Dtwenporl^
77 Id. 132.
DsscRiFnoN IN Chattel Moktoaob^ Cbbtaihtt Rbquirxd: Ootdm v.
Coekril, 81 Am. Dec 610, and note 619; note to Van ffetum ▼• Roddiff, 72
Id. 483; CaJtl t. Qra^, 76 Id. 141; Caiismg ▼. ShOief, 84 Id. 84& GhntteT
mnat be set apart and identified before property in it paaaea by sale: See not»-
to Qonmrn t. MadiQon, 82 Id. 667, and oaaes there cited.
The PBivaiFAL oabe was getbd in Sargtani t. SoSberg, 22 Wis. 136^ to the-
point that mortgaged property deacribed in a chattel mori^gage may be identi-
fied by parol evidence; and in Begg t. Begg, 66 Id. 638, to the point tiiat i&
determining which of two persQna of the same name is the grantee named m-
a deed, much latitade of inqviry into the facta and droamatances mnat neoee-
sarily be allowed, especially where one of sach persons is dead. The princi-
pal case was considered to hare no application in Dreukur t. Lawrenei, 68 Id.
698, where it was held that an instniment pniporting to convey land, bnl
which, by mistake, had only one witness, and was not sealed, was in equity
a contract to convey the land described; that the consideration expressed*
wonld, in the abeence of any proofs to the contrary, be presomed to be thr
tme consideration for the conveyance; that snch a contcact was clearly as-
signable; and that a grantee of the purchaser therein named might maintain
an action to compel a conveyance. The principal case was sommariaed in
BenneU v. Keehn, 57 Id. 694, where it was said that the court in the principal
case held the complaint bad, on the sole ground that it contained no al-
legation that the right of action which the La Crosse and Milwaukee com-
pany had against the defendant on its covenant to pay part of the mortgage-
debt was sold at the foredcsure sale under which the plaintiff claimed, or
that the price bid for the mortgaged property at such sale was in any wise-
dependent on the existence of that covenant. The decision in the principal
case was held to furnish no rule by whidh Btrntett v. Kttkn, tmpra, could be^
determined.
OASES
STJPREME COURT
OF
ALABAMA,
Ex Pabtb Echols.
[89 AMsABAUK M6.1
MunuMini to Spsikxr or Hoon or BsPBisiMTisxviaL —When a hill
htm beea roted upon by the memben of the home of repfeeentatiree,
and hae been declared defeated by the ■peaker, and upon appeal hie de-
oudon baa been enstained by the honae, such ruling and approval both
being made becanee of an alleged erroneoiia oonstruotion of the conatitn-
tioDal proviflion requiring a Tote of two thirda of eaeh hooae to pass the
bill, the supreme court will not grant a numdamWf at the suit of a mem-
ber of the house, direoting the speaker to send the bill to the senate.
JVDIGIAAT WILL NOT JxmunBM WITH BiTKMB OF OtHEB CO-ORDIHATB
Dbpabtmxmts of the government in the legitimate exercise of their juris-
diction and powers, except to enforce mere ministerial acts requirea by
law to be performed by some officer thereof, and not then if the law
leaves it discretionary with the officer or department.
The opinion states the case.
Ooldihwaitef Rice, and SempUj for the motion.
By Court, Byrd, J. This is an application by a member of
the house of representatives for a mandamvSf or other appropri-
ate process, to be issued, requiring the speaker of the house of
representatives to cause a certain '' bill, which has passed said
house," to be sent to the senate. It appears from the applica-
tion that the bill is '^ a bill to be entitled 'An act to create a
new county out of portions of Macon, RusseU, and Chambers ' " ;
that the bill was regularly " put upon its passage, on the four-
teenth day of February, 1866, in said house, and the vote upon
the question whether said bill should pass was, on said last*
760 Ex PABTB Echols. [Alabama,,
named day, taken in house by yeas and nays, and stood slb
follows: forty-seven votes for its passage, and twenty-two
against its passage; that the speaker of said house, on ascer*
taining that there were forty-seven votes for the passage of
said bill and twenty-two vot^ against its passage, announced
and decided, on said lae^named day, that said bill was lost^
and had not passed, and that under and by virtue of section
2 of article 2 of the constitution of the state, said bill could
not be passed by any number of votes in said house less than
sixty-seVeifi in tk^t of its pal»age; thai i&i^ appeal to said
house Was thereupon taken from 6aid decision of the speaker,
and on said appeal forty-five members voted to sustain said
decision, and thirty-five voted against sustaining said decis-
ion; that the said decision '61 the speaker, and of those who
voted to sustain said decision on said appeal, was induced and
caused solely by the construction they felt it their duty to
place upon said section of the constitution; and that by rea-
son of said decision Of Ibe speaker, the eitid bill has been de-
feated, and is kept from tiie senate.''
Iliese are the naterial facts admitted by the q>eaker in a
written consent and admission attached to the application,
and the only ones necessary for our consideration from the
view we take of this case. Whether this court has original
iurisdietion to issue a writ of mandmtiu$ in aay <oase similar
to this is not necessary to be considered. Nor is it necessary
for us to pass on the question whether the petitioner has such
an interest in the subject-matter as entitles him to come into
this court and ask its aid in eonti^ling the qpeaker of the
house of representatives. But the question we shall consider
is, whether this court has the jurisdiction to control the speaker
of the house of representatives in respect to the matter com-
plained of.
The speaker decided that the b^ had not passed by a vote
of two thirds of that branch of the legislature; and an appeal
was taken from that decision to the house, and the house sus-
tained the decision of the speaker. This was a question cer-
tainly within the jurisdiction of the speaker and house to pass
upon, and is not a mere ministerial duty, but one that p^-
tains to their legislative functions, and is one over which the
house has oxelusive jurisdiction. No other department of
the government can revise its action in this respect without
a usurpation of power.
In 8ka$ V. A)fM*, 1 Ala. 688, the ocwt My: ''Thai flMo
Jfto. 1866.] Bz PABTs Borolb/ 751
may be aots of either one or all fhe brandies ot the legieAature
united which cannot be drawn in qneetion before the jadioiarj,
will not be denied. Thns either honse may elect its own
officers, and the choice cannot be questioned) nor can the
exercise of a mere political duty by the legislature, or either of
its branches, be in any manner controlled." Nor is there any-
thing in conflict with this in the case of Ez parte Pickettj 24
Id. 91, and Coo$a A 7<mn. Riven R. R. Co. v. Moarej 36 Id. 880,
or in any case decided by this court.
This court will not interfere with either of the other co-
ordinate departments of the government in the legitimate
exercise of their jurisdiction and powers, except to enforce mere
ministerial acts required by law to be jpertonnei by some
officer thereof; and not then if the law leaves it discreti<»iaiy
with the officer or department. To this extent and no further
do the decisions of this court go upon this branch of the sub-
ject.
In the case of Upited StcUee v. Outhrie^ 17 How. 304, the
court say: '^Thus it has been ruled that the only acts to
which the power of the courts, by tnondamita, extends, are
such as are purely ministerial, and with regard to which
nothing like judgment or discretion in the performance of his
duties is left to the officer; but that wherever the right of
judgment or discretion exists in him, it is he, and not the
courts, who oftn regulate the exercise." See also Braskea^ v.
Masoriy 6 How. 92; Kendall v. StokeSj 12 Pet. 62*^; DedaVtir t.
Paxdding^ 14 Id. 497; United States v. Lawrence^ 3 Dall. 42;
Life and Fire Insurance Company of New York v. AdamSy 9
Pet. 673; State v. Bowen^ 6 Ala. 611; Page v. Hardinj 8 B.
Mon. 666; Marbury v. Madisonj 1 Cranch, 137; CommimtDealth
V. ComTnimonerSj 32 Pa. St. 223; Ex parte Morris, 11 Gratt
297; Strong, Petitioner, ^ Pick. 493.
We have examined the cases referred in the brief of coun-
sel for the applicant, and find none of them in conflict with
the above. It seeifis to be held by all the authorities that the
writ of vMindafMiA can only issue to some officer required by
law to perform some mere ministerial act, or to a judicial offi-
cer to require him to take action; but not in a matter requir-
ing judgment or discretion, to direct or control him in the
exercise of either. Among all the cases and text-books on
this subject, n<me go to the length of laying doWn the doctrine
that the speaker of the house of r^resentatives, or of a
legislative body, in a matter arising in the r^vlajr course of
762 ELlbt v. State. [Alabama,
legislatioii apon which he is called to decide, can be con-
trolled by thia or any other tribunal, except by the one over
which he precddes; and that having sustained his opinion and
action, this court cannot review it. To do so would be in vio-
lation of the third article of the constitutiiin, and of principles
well established and long settled.
Each department of the government should be careful not
to trench upon the powers of the others; and this court should
be the more so, as its decisions are to be taken as the measure,
in the last legal resort, of the powers which pertain to each
department thereof; and while it will uphold its own jurisdic-
tion and powers, it will be careful not to invade or usurp any
that appropriately belongs to either of the other co-ordinate
branches of the government.
Neither can the house of representatives be viewed in the
light of an '^ inferior jurisdiction," within the meaning of the
second section of article 6 of the state constitution; nor does
the speaker of the house come within the meaning of that
section when he is acting in his legislative capacity, and not
as a mere ministerial officer of the law.
It results from these views that the application is refused ;
and so let it be entered of record.
Each DsPABnasT or QovsBimBflT, within its proper ooostitiitional
■pbare^ Mte jadepeodsiitly ol the others; neitliar ou oontrol or dietate to
thaotheri: MUe$r. Bn4fifrd,B& Am. J)eo. tiZ; Boffg^9 A fpea!, 92 Id. S83.
andnotM.
Habt V. Statb.
140 Alabama, tLJ
b Von Faoio Law. —The repeal of a atatate pmlrihitfaig a oonviotioa oo
the nnoovroborated t^stnnoay of an aooompliee doea not aifeot proaeon-
tkma under indiotmenti pending prior to aooh repeaL To gm thia efleet
to the repealiaic ataiiite would be to make it es foti/aek> within the oon-
stitntion.
Thb opinion states the ease.
Oatesj finr the defimdant.
By Courts Judob, J. By both the federal and state oonati-
tutions, the legislature is prohibited from passing ex pott facto
laws; and it is well settled that the phrase ex poet facto in
June, 1866.] Habt v. Statb. 753
these constitationfl extends to criminal and not to civil cases.
What are ex po9t facto laws within the meaning of the prohi-
bition? As early as 1798, in Colder v. BtMj 8 Dall. 386, the
snpreme court of the United States, in considering whether
an act of a state legislature was in violation of the prohibi-
tion against ex poet fcteto laws, deemed it expedient to define
fally the meaning of that provision in the constitution; and
it was held that the prohibition included: 1. Every law that
makes criminal an action done before the passing of the law,
and which was innocent when done, and punishes such action;
2. Every law that aggravates a crime, or makes it greater than
it was when committed; 3. Every law that changes the pun-
ishment, and inflicts a greater punishment than the law an-
nexed to the crime when committed; 4. Every law that alters .
the legal rules of evidence, and receives less or different testi-
mony than the law required at the time of the commission
of the offense in order to convict the offender. All these and
similar laws, it was held, are prohibited by the constitution.
This statement of what are ex postfcteto laws within the words
and intent of the constitutional prohibition has since been
generally adopted and foUowed by the different courts when-
ever the question has arisen. Chancellor Kent quotes it, in
substance, without disapproval; and Judge Story, in his com-
mentaries on the constitution, says it has been, and is, in
the general interpretation: 1 Kent's Com. 409; 2 Story on the
Constitution, 1345.
We will now apply the fourth clause of this interpretation to
the case before us. The defendant in the court below was in-
dicted in 1860 for playing at cards against the prohibition of
the statute. At the time the indictment was found, and before
the alleged commission of the offense, section 3600 of the code
was in full force, and applied to all criminal prosecutions.
That section was as follows: '^ A conviction cannot be had on
the testimony of an accomplice, unless he is corroborated by /
such other evidence as tends to connect the defendant with
the commission of the offense; and the corroboration is not
sufficient if it merely shows the commission of the offense, or
the circumstances thereof^" Pending the prosecution against
the defendant, the legislature passed an act, approved Decem-
ber 5, 1863, which is as follows: ''That section 3600 of the code
shall not extend to trials on indictments for misdemeanor":
Sess. Acts 1863| p. 73. The offense for which the defend-
ant was indicted is a misdemeanor, and on the trial in thi
AM. Dao. Vol. LXXXVni-4t
764 VU»t V. QxAam- jAlnhamii,
circuit cont^ an aoGompIioe in tba onmip^ AQtitiMBintaodaeod
88 a witaei0 agaiJist.him. By ib« aole iinccaczoboraied toeti-
mony of this accomplice, the defendant, juidair ibe ruling of
the court, was convicted, — convicted by .testumov^y .which Uie
law declared insufficient to psoduoe coavictioo at the time
of the alleged commisfiion of the ofBua^e. How w^us tiiis ef-
fected? By a change in the law, — by an |tct of the legislatuTe,
— under the influence of which the wurt iwst bB^e acted,
which altered a legal rule of evidence, and received less testi-
mony than the law required at the time of the commiaBJon of
the offense in order to convict the ^offender.
A construction which gives to the statute a retrospective
effect has always been esteemed odious, and will never be in-
dulged unless the language employed sequires it. Such stat-
utes are justly considered as violative, of every sQund principle:
Dwarris on Statutes, 681; Shepherd's Digeat, p. 745, sec. 17.
Besides, to give the act of December, 1863) retroactive effect
would make it an ex poit facto law within the meaning of the
constitution. We are constrained to held it .can ha^e no such
effect. It follows that the circuit eoust errad in rendering
judgment against the defendant on the 4emurvar to the evi-
dence. This view nuders it unnecessary to notioe any other
question in flie ease.
Let the judgment be reversed, and the cause be remanded.
A. J. Walker, G. J. By a law of this state, a conviction
upon the uncorroborated testimony of a certain class of wit-
nesses was prohibited. This law was subsequently repealed as
to misdemeanors. The ailment that the repealing law, in its
operation upon antecedent offenses, is ex post facio rests entirely
upon the announcement by the supreme court of the United
States that a statute is ex post facto which alters " the legal
rules of evidence," and receives '^ less or different testimony
.... in order to convict the offender": 1 Kent's Com. 409.
This principle has been incorporated into the American text*
books and American decisions, on the high authority of the
supreme court of the United States, with but little comment or
explanation. I understand the rule to refer to changes in the
measure or character of evidence requisite to conviction, and
not to cautionary regulations as to the instruments by which
the evidence is conveyed to the jury. The evidence necessary
to convict is not changed by the later statute in this case. A
criminal cauae may be affected by a change in the instru-
ItM.] Hart v. Statb. 785
menis of evidence, prodaced by eooial inftuetioeBy pieeisely
analogOttB to that which is efifecfted by the aheratioti of the
law now in hamd. A witness upon whose testimony a convic-
tion depends may be of such bad reputation when an oflPense
is committed Ibirt a jury could not credit him or oonvict on
his uncorroborated testltnony, and by good conduct, or tiie cor*
rection of false impressionB, his reputation may be restored
befiM*e the trial, and a oonviction legally and properly obtained
upon hie unoorrobowled evidenoe. It might bm w^l be said
that the evidenoe necesstary to ecoiviot was thus changed by
social influence as that such a change has been produced by
the law in this case. There is here no change of the ingredi-
ents of thetlflfenee, or of the facts which constitute ifuilt. There
is a mtere change of a rule of oredibiHty. The>old law attached
to an uncorroborated accomplice an unvarying presumption of
hicredibiHty. This presumption is withdrawn in misdemean-
ors by the later law; and Siis withdrawal by no means effeots
any alteration of the degree, measure, or ehaaracter of evidence
neceeeary to oonvict. I thereftos think that the law is not «st
post facto J and dissent from the opinion of my brethMn.
Btsb, J. Since the delivery of the opinion in thia cause,
the chief juetioe has filed a dissenting opinion, which he inti-
mated at the time he reserved the right to do. After hearing
it read, I dean it proper to express my adherence to the con-
elusicm anived at in the fiorm^, and to submit my reasoDS
therefor.
The oonstructioii of the constitutional provision against ex
po9i facto laws, given in the case of Calder v. BuUj 3 Dall. 391,
has been too loi^ acquiesced in and recognized by repeated
and uniform a4judications to be now disturbed; and it seems
to me that the only open question is as to its application to
cases as they may arise. A majority of the court hold that
the rule which prohibits the conviction of a person charged
with ttte commission of an oflbnse ^' upon less or different "
testioMKiy than was required by law at its commission is ap-
plicable to this case.
At the time the Offense is alleged to have been committed,
the appellant oould not have been convicted on the evidence
upon which he was convicted. To convict him, the law re-
quired, as it stood at the time the offense is alleged to have
heett committed, the additional evidence of another witness,
^besides an accomplice, to prove such corroborating ihots '^ ai
766 Habt v. State. [Alabama^
to tend to ooxmeot the defendant with the oommiBsion of the
offense; and the corroboration is not sofficient if it merely
show ihe commission of the offense, or the drcomstanoes
thereof": Code, sec. 8600. Upon the trial, he was conTicted
on the uncorroborated testimony of an accomplice, which, at
oommon law, was looked upon with great suspicion; and it
seems to me that such flimsy and unreliable testimony is less
than, if not different from, that required by law at the time
the offense is all^;ed to have been committed, and would
seem to dispense with the material rule that such testimony
must be corroborated by evidence which tends ^^ to connect
the defendant with the commission of the oflbnse." It of
course required the additional testimony of another witness,
not implicated with the offender; for no number of accom-
plices would have met the requirements of the law. If^ then,
the conviction on the sole testimony of an aooomplice is not
less evidence than that required at the time of tiie alleged
commission of the offense, as shown, it is difficult for me to
conceive what is meant by the rule laid down in CaUer v.
BvU, 3 DaU. 891.
To hold the law to be otherwise than as declared and ap-
plied in this case would, in the opinion of a majority of the
court, be to announce the proposition that the legislature might
pass an act authorizing the conviction of a defendant upon
less evidence when he is tried than was positively required by
law for his conviction when the offense was committed, in dis-
regard of the interpretation of the constitutional inhibition
against the passage by the states of ex poet fctcto laws. In
addition to the authorities cited in the opinion of the court
delivered by Justice Judge, we refer to the following: Woart
r.Winnick^ 3 N. H. 475 [14 Am. Dec. 884]; Carpenter v. Cam-
monweaUh^ 17 How. 463. In this latter case, Justice Campbell,
in delivering the opinion of the court, approves by citing the
above cases, though by some clerical mistake the case in Wbari
V. Winniekj 8 N. H., is referred to page 875, instead of 475 [14
Am. Dec. 884]. He also cites FUUher v. Peek, 6 Cranch, 87;
Watson v. Mercer, 8 Pet. 88; Charles River Bridge v. Warren
Bridge, 11 Id. 421; Fisher v. CockeriU, 5 Mon. 133; SewaU v.
Lee, 9 Mass. 868; CwnnumweaUh v. Lewis, 6 Binn. 271; and
WUder v. Lumpkin, 4 Ga. 208, which announce an adherence
to the rules laid down in Colder v. BvU, supra.
These views, and a reference to the above authorities, have
been called forth in response to the dissenting opinion of th«
June, 1866.] Coltabt v. Allen. 757
chief justiee, and not from any sabstantial doubt as to the
conclusiveness of the reasoning or the correctness of the con-
clusion of the opinion of the court delivered by Justice Judge.
Ez Post Facto Laws: See Sotion t. OummSna, 60 Am. Dee. 717» and aofeei
Mmigka'T.Neimm,G21±eHi BaUroadCkkr. ZMdhrMM* 66 Id. 148.
CoLTART V. Allen.
[40 Alabama, 16&]
Qbavt of Letters of ADMnnsTRATiON by the probate court of the ooon:^
where the deceased did not reside is voidable only by direct prooeediag
for that pnrpoee. A sabaeqnent grant of letters by the proper ooort is
absolutely void until the former letters have been revoked, and the ad*
ministrator appointed thereby has no such interest in the estate as will
entitle him to apply for such revocation.
The opinion states the case.
WaXketj BrickeUj and LemSj for the appellant.
Chilton and HioringUm^ and Rieef for the appellee.
By Court, A. J. Waleeb, C. J. Administration upon the
estate of Jehu W. Geron, deceased, was granted to Minerva
Allen by the probate court of Jackson County. Afterwards,
administration upon the same estate was granted to Robert
W. Coltart by the probate court of Madison County. Coltart
applied to the probate court of Jackson to revoke the admin-
istration granted by it to Minerva Allen, and based the ap-
plication upon the allegation that the intestate was at his
death an "inhabitant" of Madison County, and not of Jack-
son County, in which the first administration was granted.
Evidence was received as to the inhabitancy of the intestate
at the time of his death, and the probate court of Jackson
County overruled the motion for a revocation of the adminis-
tration of Minerva Allen.
The question of the county of the intestate's inhabitancy
depends upon oral and conflicting testimony. Without regard
to the merits of that question, the judgment of the probate
court must be affirmed. This conclusion is attained as the
result of the following propositions: 1. That the appointment
in Jackson County was not void, but voidable upon the con-
cession that the evidence proves the inhabitancy to have been
in Madison; 2. That the administration in Jackson being
758 CoLTABT V. Ai^LEN. [Alabama,
merely voidable^ fbe later administration granted pending
the prior is Toid; and 3. That the application for the revooa-
tion of the letters in Jachsooi County is by a person setting
up a void administration, and therefore having no interest in
the subject, and was properly overruled for that reason.
The probate court, in granting administration, jb a fbram
of general jurisdiction: IJcelheimer v. ChaptMin^ 32 Ala. 676.
The validity of the grant of administration does not depend
upon the recital of jurisdictional facts. The order here dis-
closes upon its face no defect of jurisdiction; but it is con-
tended that the want of jurisdiction may always be shown by
testimony extrinsic of the record, and that the order is thus
demonstrated to be void. This may be true when the ques-
tion is as to jurisdiction over the subject-matter, which is
bestowed by the law, and cannot be conferred by consent.
But such is not the question here. The constitution gives a
general jurisdiction to grant administration. This is the
source of the jurisdiction over the subject. The statute dis-
tributes the casea arising under the grant among the different
courts of the state according to locality. The locality of the
court therefore concerns jurisdiction of the case, which is dis-
tingcdabablo fiN>m jurisdiction over the subject-matter. The
court having jurisdiction over a oertsin class of caseS) its error
in adjudging some particular oase belonging to that class
which properly pertains to a court <rf the same authority in
another locality does not make the judgment void, but simply
voidable by a direct proceeding for that purpose. The ques-
tion* has been repeatedly so decided by courts and jurists
of the highest* repute upon reasoning which ingenuity can
scarcely oppose; Bumstead v. Rsad^ 31 Barb. 661; Ih^skman
V. MuyoTy 6 N. Y. 443; Bab&r§ v. Hammfmdj 2 Har. & G. 42;
WOsim V. Ireland^ 4 Md. 444; Etf parU Bofrher^ 2 Leigh, 719;
Andrems v. Awry^ 14 Oratt 229; Puih»r v; Bcmeit^ 9 Leigh,
119; [38 Am. Dec; 227]; BurnUy v.DtiJbe, 2 Bob. (Va.) 103;
Burdeit v. SiUbeCy 15 Tex. 605; Petigru v. Ferguson^ 6 Rich.
Eq. 378«; Clapp v. Biardileyy 1 Vt. 151; Washburn's Digest,
407, sec. 1; McFarlandy. Sttme, 17 Vt. 166 [44 Am, Dec. 328].
The argument of the point is fully set forth in the cases cited,
and in 1 Lomaz on Bxecutors> 349-351.
The doctrine that an administration, granted in a county
other than that prescribed by the statute is voidable com-
mends itself by its conservatism, and its avoidance of the bad
consequences of the opposite doctrine. Where the question is^
June, 1866.] CoLf art v. Allen. 759
as here, one of doubt as to the county to which the adminis-
tration belongs, there may be two administrations; disbtors
may be subjected, by the verdicts of different juries, to two
judgments for the same debt; and great confusion and injury
may result if an administration can be collaterally assailed
upon such ground.
There are decisions in this state to the effect that an admin-
istration is absolutely void when the testator died and resided
in another state, and there were no assets in this state: Brad-
ley V. Broughton, 34 Ala. 694 [73 Am. Dec. 474] ; MiUer v.
Jones, 26 Id. 247; TreadweU v. Rainey, 9 Id. 596; Oayle v.
Blactbumj 1 Stew. 429. These decisions were made in refer-
ence to cases where there was no ground of jurisdiction in any
court of the state. Here the question is simply as to which of
two courts, of precisely the same jurisdiction^ should take
cognizance of the case. There is no decisicm in tMs state op-
posed to the propositions of this opinion* It is admitted that
ther(9 are several decisions in other stlites which cure in conflict
with our argument; but they are wrong in principle, and op-
posed' by tiie decisions which are above cited, and by the au-
thority of Lomax, an able writer on the subject of executors
and administrators.
The administration in Jackson County was valid until it was
vacated, even if it was wrongftdly granted. There cannot be
two valid administrations upon the same estate, within this
state, at the same time. The administration in Madison was
therefore void. The point was expressly so decided in Petigru v.
FergueoUy 6 Rich. Eq. 378. It is argued for the appellant, that
notwithstanding the administration in Jackson County may
have been valid until set aside in a direct proceeding, the ad-
ministration in Madison would be valid; and we are referred as
authority for the position to 1 Comyn's Dig., 494, tit. Administra-
tor, B, 3, where it is said that "after an administration by the
archbishop, if the bishop to whom it belongs grant administra-
tion, and then the first administration is repealed, the admin-
istration granted before the repeal stands good." To support
this doctrine, Needhawfs Caeej 8 Coke, is referred to by Comyn.
To the understanding of that case, it is necessary to observe
that, in England, the appointment of an administrator apper-
tained to the prerogative court of the archbishop of the prov-
ince, where there were bona notabiUa in two or more dioceses;
but to the court of the bishop of the diocese where there were
b(ma notabUia only in that, diocese: Roger's Ecc. Law, 967.
/
760 CoLTABT «. Allbk. [Alabama,
In Needkam^s Com^ mpra^ an administration was granted by
the prerogative court; afterwards administration was granted
by the proper ecclesiastical court of the diocese; and after
that the prior administration by the prerogative court was pro-
nounced and declared void, pro nulla et invalida ad omnem
juris effecium. It was adjudged, upon a collateral attack
upon the validity of the prior administration, that it was in
truth voidable only, but must be treated as void absolutely^
because it had been so declared by a judgment, to which credit
must be given. The prior administration being treated as
void, the subsequent administration was held to be valid.
The decision is not an authority that a second valid adminis-
tration can be granted pending one which is merely voidable.
It is said in that case that the authority of the second admin-
istration is suspended until the first is revoked. However the
law upon the subject may have been under the English eccle-
siastical system, it is not at all certain that under our system
a grant of administration could be made which, though not
efiective at the time, might take efiect at some future time,
upon the revocation of the prior administration. But conced-
ing that the administration in Madison was merely suspended
xmtil the former administration in Jackson was revoked, the
authority of the administrator under the latter grant would
await the revocation, and he could not make the motion for
revocation. He would have no authority until the revocation
was made.
Affirmed.
Byrd, J. After a careful examination of the record, we are
satisfied that the grant of administration to appellee by the
probate court of Jackson County is not void ; and this conclu-
sion being arrived at, it follows that the probate court of
Madison County had no authority to grant administration on
the same estate, so long as the grant by the probate court of
Jackson County was unrevoked or unreversed. If the courts
had concurrent jurisdiction as to the subject-matter, — that is,
the grant of letters of administration of deceased persons, —
the court which first assumed jurisdiction must, ex necessitut
rei, be exclusive, at least until the action of the first court
which took jurisdiction is set aside and annulled. It follows
that the grant of letters to Coltart conferred on him no author-
ity, nor any interest which authorised him to institute this
proceeding to vacate and revoke the letters of administration
Jiuie, 1886.] Boon A Ca v. Stbamboat BiLFAsr. 761
granted by the probate court of Jackson County to appellee;
and for this, if for no other reason, the judgment of the probate
court on this proceeding must be affirmed, on the authority of
the cases of Burdeit v. SiUbee, 15 Tex. 604; Bumstcad v. Read,
81 Barb. 661.
Ancsamaan ow ABMunsTRATOB subinq Tibm of preTioaaly appointed
cne u rmd: Bmdm t. 8ieb^ 02 Am. Deo. 765.
Ths FBDrciPAL CASS Z8 CITED to the point that there oennot be two Talid
gnmti cf adminiitwtion within the sune jnriidiotian ezieting at the nme
toM^ mNdam t. AifMbm M Ala. 868^ 377, and MeDmM ▼. Jomu. S8 Id
«fbS&
Boon & Co. v. Steamboat Belfast.
140 Alabama, 1M.J
OnROK laaaxtsQ Liabujtt ov Common Gabbor oaskov bb 8b0wv.
Where a qoantity of cotton was delivered to a steamboat oompaay for
transportation, and a bill of lading given which only excepted them from
"daxigers of the river/* and the cotton, while being transported, was
forcibly taken by an armed body of men, the carrier, for the pnrpoee of
relieving his liability, will not be allowed to introduce parol evidence of a
costom by which all carriers navigating the river were relieved from lia-
bility for losses so occasioned without fault or negligence of the carrier.
OuarroM or UaAos, Effect of Which is to Cqrtbol Rulb of Law, is
inadmissible as is one which tends to enlarge or restrict the explicit
langnage of a contract.
ApPELLAini's filed a libel in admiralty against the steamboat
Belfast, to recover the value of some cotton which they shipped
on this boat at Columbus to be transported to Mobile, and
which was never delivered. The owners of the boat intervened ,
and in their answer alleged that while the boat was proceeding
down the river, it was forcibly boarded and seized by a body
of armed men, and without any fault on the part of the officers
and crew, and that the cotton was thereby lost. The remain*
ing £ACt8 appear from the opinion.
Dargan {tnd Taylor^ for the appellants.
BoyleSy for the appellees.
By Court, Judge, J. The respondents, in their answer to the
libel, made the following averment, in substance, as one of
thdr grounds of defense: " That it is the universal practice
and understanding amongst all persons navigating the waters
of the Tombigbee Biver, and of all persons shipping cotton to
Mobile on said river, that where cotton is received on board of
762 Boor A Co. «. 8¥»amboat Bslfaat. [Alabaitai
a steamboat to-be traiuq^orted to Mobile, if tbe boot is oapfeured
by armed men, and the cotton tbemby lost to the owner or
owners, without any fault or neglect of the offioenr oi* crew of
the boat, neither the boat nor the owners of the botft asre^ liablb
for said loss; that the said practice and understandfaig is gen-
eral, and uniyerBally known to all persons navigating said
river to Mobile; that is, that said eastern is general, universal,
and uniform, and known to all persons navigating said river,
and all persons shipping cotton upon said river; that said'OOfr-
tom existed at the time of the -cont^^ctof shipment^ sMfd^befaM
that time, and was known to all persons who were engaglsd m
shipping cotton on said river to Mobile, and to all persons nav-
igating said river."
This allegittioa was excepted to by the libelants^as setting
up a custom in direct conflict with the law, and as being no
bars to the libeL The court overruled the exception, and <m
the trial pannitled parol evidenoe to be introdaoedby Hie re-
spondents- to snstain the allegation, against the objeetlon of
libelants.
The bill of lading was in the usual form. It acknowledged
ttie receipt of a certain number of bales of cotton ai Vienna, to
be driivered at^ Mobile, " dangers of tiie river excepted.'' As
to this cotton, the boat and its owner j became answerable for
accidents and thefts, and even for a loss by robbery. They
became answerable for all losses which do not fall within the
excepted cases of the act of God and public enemies. This,
as Chancellor Kent remarks in his Commentaries, "has been
the settled law of England for ages; and the rule is intended
as a guard against fraud and collusion, and it is* fi)unded on
the same broad principles of public policy and convenience
which govern the case of innkeepers": 2 Kent's Com. 598.
"The only exception expressed in the contract in this case
is * dangers of the river.' The only exceptions implied by law
are the act of Grod or of the public enmier": CoXj Brainardi A
Co. V. Peterson^ 30 Ala. 608 [6B Am. Dea 145].
Whilst in all contracts, " as to the subject-matter of which
known usages prevail, parties are found to proceed with the
tacit assumption of these usages," and whilst "parol evidence
of custom and usage is always admissible to enable us tb
arrive at the real meaning of the parties, who are naturally
presumed to have contracted in conformity with the known
and established usage," yet, "it is not admitted to contradict,
or substantially to vary, the legal import of a written agree-
Joae^ 1866.] Boon A Co. if. Bteaxboat Bslfabt. 768
ment. The usage of no elasaof men ean be sintained kt op>
poeitioii to the established prinoiples of law": Addiison on
Contracts, 858; Price ▼. White^ 9 Ala. 568; McClwe & Co. ▼.
(?<», Brainard, & Co., 32 Id. 617 [70 Ara. Deo. 582].
The tme and appropriate office of a usage or custom is
eoireetly stated by Judge Story in the case of S^^iomffr Ree^
iidSj 2 Sum. 667. In l^t case, it was attempted to vary the
common bill of lading, by which goods were to be dW^rared
in good ord^ and condition, '^the danger of the seas'only ex-
cepted," by establishing a custom that the owners of padtet
vessels between New York and' Boston should* be liable only
for damages to goods occasioned^ by their- own neglect. In
delivering the opinion of the court, Judge* Story said: ^The
true and appropriate office of a usage or custom i» to interpret
tiie otherwise indeterminate intentions of parties, and' to ascer-
tttki the nature and extent of their contracts, arising not' from
express stipulations, but from mere implications and presump-
tions and acts of a doubtful or equivocal character. Vt may
be also admitted to ascertain the tme meaning of a particular
wwd, or of particular words, in a given instrument, when the
word or words have various* senses, some- common, some quali«>
fied, and some technical, according to the subject-matter to
which they are applied: But I apprehend that it can never
be proper to resort to any usage* or custom to control or vary
the poffltive^ stipulations in a written contract, and a fortiori
not in order to contradict them. An express contract of the
parties is always admissible to supersede or vary or control a
custom oruBC^; for the letter may always be waived at the
will of the parties. But a written and express- contract can-
not be controlled or varied or contradicted by a usage or cus-
tom; for that would not only be to admit parol evidence to
control, vary, or contradict written contracts, but it would be
to allow mere presumptions and impUcations, properly arising
in the absence of any positive expressions of intention, to con-
trol, vary, or contradict the most formal and deliberate writ-
ten declarations of tho parties." See also 2 Parsons on
Contracts, note on page 59, and authorities there cited; Hone
V. MkUuaL Snfety Ins. Ca, 1 Sand. 137^
'^ It may be difficult to draw the precise line of distinction
between cases in which evidence of usage and custom ought
to be admitted and cases in which it ought not to be admit-
ted." Upon this question, "much confusion and inaccuracy
have crept into the adjudged cases, so that any attempt to
706 Whits v. Hutchinos. [Alabanui^
White v. Hutchings.
[40 Alabama, 2S8.1
Dbd Mors than TmBrr Txabs Old, Unblbmishxd bt ALiSBAnoaB,
proTM itself m tho sabaeribing witaieeses are presamed to be dead, and
thia preeompticm, bo &r as the rale of evidence is concerned, is net affected
by proof that the witneoooe are living. Its admissibility in evidflnce-
does not depend upon a proper certificate of adcnowiedgment
Wbxbb Dxeb has bebn Shown to havx been Beoordbd in Psofer Of-
nCE TwxNTT Tbabb bbiobb, it will be presumed to have been properly
proved or acknowledged, and a transoi^ of the record thereof will be*
•dmiasilile in evidnoe.
TmM DXBDS— Who Bntrxjed, and Who Pbibuicbd to haw PoflgnaioN
07. — In America^ each sacoessiye grantor of realty is preonmed to give
to his grantee only his deed of conveyance, retaining the ^'mmitiliitft deed
to himself to rely open its eovenurts in «aae of iailiire4rf'litte. && BNf *
laad, the title dse^ 00 withilie iBBd tothefos^MM;
Tbb opinion states the points decided.
Elmore and CiUUm, for the ^jppellant
Ooldthwaitey Rice, and Sempiey for the appellee.
By <3eiirt, Jcimb, J. Tho inuwerifiof ihe deed from Mia
Falooner to William Magtmre was oSfered in evidenee by the-
plaintiff in the court Jb^low, with an agreement between the
parties to the effect that the copy of the deed, as set oat in^
the ivanacript, xmght be regarded as an origioal paper of the-
same tenor and dale; and thai the oertificaite and indorsements
thereon, as i^hown by the transcript, might bo regarded as in
the handwriting of G. H. Gibbs, who was at the date thereof
the clerk of the circuit court for Montgomery County. Thia
presents the questian whether the deed as specified in the
agreement was properly udmissible in evidence without fur-
ther proof, it haying been relevant to the issue.
If its admissibility had depended upon the sufficien<7 of
the certificate of acknowledgment, the authorities cited by the
appellee are conclusive to show that it was properly excluded
by the court; for the certificate is neither in Xcmto nor aub-
stance eueh as was required by the first eection of the not
of 1812, which was of force at the time the certificate wb»
made: Aiken's Dig. 89, sec. 7. But nearly thirty-three year»
had elapsed since the date of the deed; and instruments more
than thirty years old, unblemished by alterations, are said to-
prove themselves, the subscribing witnesses being presumed to-
be dead; and this presumption, so far as this rule of evidence
is concerned, is not affected by proof that the witnesses are
Juue, 1866.] Wjqts v. HuTcsuoe. 767
living: 1 Qreenl. Ev., seo. 21, and Buthoriiies dted in note 1
to the text. From tbia it follows thai the dtooit court erred
in excluding the evidence.
Bat under the circumstanoeSy was not the transcript of
itself, irrespective of the agreement between the parties, pioih
erlj admissible in evidence? The bill of exceptions fails to
disclose with certainty the date of the admission of the deed
to record; but if it had been recorded in the proper court of
the proper county more than twenty years before the day of
trial, the presumption was that its execution had been legally
proved or acknowledged, and that the proper certificate had
been '* written upon or under the deed." To hold otherwise
would not be in harmony with the repeated adjudications of
this court, — that after the lapse of twenty years such presump-
tions may be made: OanU*$ Adm^r v. Phillips^ 23 Ala. 275;
Lay V. Lauwmf 23 Id. 877; BameU v. Tarrence, 23 Id. 463;
Rhodes v. Turner^ 21 Id. 210; McArthur v. Carriers AdmW, 82
Id. 75 [70 Am. Dec. 529]; MOton v. Baden, 32 Id. 30 [70 Am.
Dee. 523]; Wyatt'B Admit v. 8coit, 38 Id. 318. To authorise
this presumption, it was not necessary, under the weight of
authority, first to prove possession or corresponding enjoy-
Tnent, or other equivalent or explanatory proof: 1 Qreenl. Ev.,
note 3 to sec. 144, and authorities therein cited.
With the presumption, then, that the deed had been legally
proved <Nr acknowledged, and properly admitted to record,
what was necessary to authorize the transcript to be received
in evidence? Section 1275 of the code declares that ^' if it ap-
pears to the court that the original conveyance has been lost
or destroyed, or that the party offering the transcript has not
th0 custody or control thereof, the court must receive a tran-
script, duly certified, in the place of sueh original. No direct
evidence was offered to the court upon iMs question; but the
evidence springing firom the transcript itself, by presumption
from lapse of time, was sufficient to show that if the original
deed had not been lost or destroyed, it was at least not within
the custody or control of the plaintiff. Maguire, the grantee,
was the proper custodian of the deed from the date of its exe-
cution. If subsequent to the conveyance to him, he conveyed
the land to another, still the presumption would be that he
letained the possession of the deed from Falconer; and after
the lapse of more than thirty years, the plaintiff could not be
required to trace up and account for either Maguire or the
deed.
768 White v. Hutchinos. [Alab&mai
In England, all the title deeds to real estate go with the
land to the purchaser: 2 Sugden on Vendors, 90; and it maj
be reasonable there to require the purchaser to produce the
original deed to a prior grantee. There, no system of regis-
tration prevails, and the preservation of the title deeds, by
which the estate has been transferred from hand to hand, be-
comes of great importance. They are in the nature of heir-
looms, and descend, together with the chests in which they
are contained, to the heir: 4 Bla. Com., b. 2, p. 428. But
here the mode of conveyancing is different. The grantee
generally takes only the immediate deed to himself, relying
on the covenants of his grantor, who is answerable to him on
failure of the title; and on conveying to another, being liable
over as warrantor, he has the right to retain in his hands the
immediate deed to himself, as a protection against claims for
the recovery of the property wliich might afterwards be at-
tempted: Eaton V. Campbell j 7 Pick. 10; Jackson v. Woolsey^
11 Johns. 446; Cooke v. Hunter y 2 Over. 118; Nicholwm v.
HiUiardy 1 N. C. Law Rep. 253; Thompson v. Ives^ 11 Ala.
239, and authorities there cited; Hussey v. Raqtiemore^ 27 Id.
281; ShoHer v. Skeppard, 33 Id. 648; see also SeoU v. Rtpen^
1 Stew. & P. 19 [21 Am. Dec. 646].
My brethren concur in the setting aside of the nonsuit on
the ground first stated, but announce no conclusion as to th«
admissibility of the transcript in evidence on the other
grounds discussed in this opinion.
Let the judgment of nonsuit be set aside, and the cause
manded.
£zBcunoN or WiuTrsir DocuicEim Mobs thav Tbistt Tsabs Ou^
and shown to come from the handa of an indiTidoal properly entitled to tfaa
enstody thereof, need not be proved, although the salMoribing witneeeaa magr
be alive: 8Me v. AUmm, 62 Am. Dec. 393; aee alao Btwri^ v. Burke, M Id.
861; Crane ▼. MarehaU, 33 Id. 631; Nkam ▼. Pwier, 09 Id. 406.
GASES
nr IBS
SUPREME COURT
OF
ABKAN8A&
Hagan V. Deuell and Vaughan.
[M ABKAHflAS, 210.]
Repuiyin son hot Ln for property in the oottody of the law, nor
eroae-repleTin be maintained.
Not nr Cubtodt or Law — Rsflxvin. — Where defendant! haTe
plevied property from a third person, and it hae been deUrered Into
their pooeoerion npon their giving a bond, plaintiff may repleyin it oat
of fheir hands before the settlement of their suit with the third perty,
if plaintiff was not a perty to that soit^ as the property was not in tho
cnstody of the law.
Statdts Givnio Third Pebsov Bioht to Comtibt Titlb to PBonBTT
BxpLKViXD before sheriff and jnry does not prerent the perty from
resorting to any other remedy which the law gires him. The statatory
remedy is not ezdosiTe.
Bbickdt whxbx Psopkbtt nr CimoDiA Liod has bxdi Bkpuvmd Is not
a motion to qnash, especially where the writ has not been retunad.
The defense should interpose a plea in abatement or in bar.
Thb opinion states the case.
Yofdeyy FarrMyj (vnd Knight^ for the appellant.
Farr and Vaughany for the appellees.
By Court, Comfton, J. The facts necessary to an onder-
ttanding of the questions that arise in this case may be briefly
stated as follows: —
Hagan, the appellant, filed in the Pulaski circuit court, in
term time, his declaration in replevin against the appellees,
Deuell and Vaughan, and a writ, returnable to the next term
of the court, was issued thereon, and placed in the hands of
the sheriff, who, in obedience to the writ, replevied the prop*
AM. Dia Vol LZZZVm-4» 909
770 Hagan v. Deubll and Vauoham. [Arkanaaa^
II
erty mentioned in the declaration, and delivered it to Hagi
Subsequently, at the same term of the court, and before the-
writ had been returned, Deuell and Vaughan moved the coiiri>
to quash the writ and cause to be returned to them the prop-
erty which had been replevied. The ground of the motion was^
that on the day previous to the issuance of the writ, Deuell
and Vaughan had replevied the same property from one
David C. Wilson, and had given the bond required in such
cases, and that therefore the property was in the custody of
the law. The court below sustained the motion to quash, and
allowed a return of the property, with judgment for damages
and costs.
That replevin does not lie for property in the custody of the
law has been declared by this court in Goodrich v. Fritz^ 4 Ark.
625, and in Spring v. Bourkvad, 11 Id. 658 [54 Am. Dec. 243].
Nor can cross-replevin be maintained, because that is expressly
forbidden by the statute: Gould's Dig., c. 145, sec. 2. In the
case before us there was no cross-replevin, for the reason that
the plaintiff in this action was a stranger to that brought by
Deuell and Vaughan against Wilson. It is contended, how-
ever, that although the property had been delivered by the
sheriff to Deuell and Vaughan before it was seized under the
writ in the second action, it was nevertheless in the custody
of the law, the former action being then still pending; and
Ooodrich v. Fritz, supra, and Spring v. Bourlandj supra, are
cited and relied on as authorities in point. In both of those
cases, the property was in the possession and custody of a con-
stable, who had seized it under an execution; and upon that
state of facts, the court decided that the action could not be
maintained. But in the case we are now considering, the pre-
cise question is, Was the property in the custody of the law?
We think it was not. The reason why property in eustodia
legis cannot be replevied is, that to permit it to be done would
be to interfere with the possession before the office of the law
had been performed as to the process under which it was
taken. Here the officer had parted with the possession.
When he delivered the property to Deuell and Vaughan, the
process was fully executed, his whole duty was performed,
and the legal custody necessarily ceased. The foct that
Deuell and Vaughan entered into the usual bond in such cases
cannot affect the question. In the event they should not re-
cover against Wilson, the bond requires them to return the
property; and if they fail to do so, subjects them to its penalty;:
Deo. 1866.] Hagan v. Dsuell and Vauqhah. 771
this is a matter personal to them, and in no wise concerns
the execution of the process under which the property was
seised.
True, if Hagan should recover, Deuell and Vaughan could
not make restitution to Wilson should he recover; but this
can avail them nothing, because if they recover against Wilson
the objection fails; and if they should not^ it is their fault to
have sued Wilson without a cause of action. I
Pov>ell V. Bradlee & Go., 9 Gill & J. 220, decided by the
court of appeals of Maryland, is a case bearing directly on
the question. There the property has been replevied, and
while in the possession of the officer was taken under a sub-
sequent writ of replevin, at the suit of a third party against
the plaintiffs in the first action. At the trial, there was evi-
dence conducing to show that the plaintiffs in the first suit
had waived the delivery of the possession to them under their |
writ, and it was held that the court below did not err in refus-
ing to instruct the jury that the plaintiff could not recover if |
they found that such subsequent writ issued while the prop-
erty was in the custody of the officer. The court said: '' The
principle is unquestionable, that property while in the custody
of the law cannot be replevied; and the reason is, that the
law will not be so inconsistent with itself as to be auxiliary or
lend its aid to an act which would operate to defeat its own
purposes. But the court were called upon to instruct the jury
that if they found that the writ of replevin which issued in
this case was executed before the service of the first replevin
upon the same property, and while it was in the custody of
the sheriff, then the plaintiff was not entitled to recover.
There being evidence in the cause to go to the jury to prove a
waiver on the part of the plaintiffs in the original replevin, of
the delivery of possession to them under their writ against the
defendants in that action, the court would have erred in giv-
ing a positive instruction to the jury in the manner required
by the defendant's first prayer." Thus showing that when
property is delivered by the officer to the plaintiff in replevin,
it ceases to be in the custody of the law, — indeed, this was
conceded, argitendo, by the eminent counsel for the defend-
ants in that case, who insisted that it was not competent for
the plaintiffs to waive the possession, and that if it was, there
was no evidence of such waiver.
In Ilsley v. Stubbs, 5 Mass. 279, to which we have been
referred by the counsel for the appellees, it is nowhere inti-
772 Haqak 1^. Deuell and Vauohan. [Arkanflai^
mated in the opinion of the court that the property was m
fiMtodia legis. On the contrary, the inference, we think, is
plain that it was not so considered. In that case, the fsiCtB
were the same as in this, and the question arose upon the
sufficiency of the defendant's plea in abatement. The courts
after remarking that the Massachusetts statute had authorized
replevin against the officer for chattels which he had attached
er seized in execution, provided the plaintiff if replevied was
not the debtor, said: ''As a general principle, the owner of a
chattel may take it by replevin from any person whose pos-
session is unlawful, unless it is in the custody of the law, or
unless it has been taken by replevin from him by the party
in possession. The plea in this case does not allege any prop-
erty in Stubbs; but it alleges that the goods were delivered to
lim by the officer, in obedience to a replevin sued by Stubbs,
Bot against the plaintiffs, but against Lund. Stubbs's posses-
sion was therefore so far legal against Lund that he could
not recover them back again by another replevin, but only on
a retomo habendo, if he should prevail against Stubbs. But
Stubbs cannot, by his own writ, acquire any right of posses-
sion against the plaintiffs who were not parties to it. They
could not plead to Stubbs's writ, nor could any retomo habendo
\e awarded them." After further discussion of the question,
the learned judge adds: ''The court cannot decide that the
allegations of the plea are sufficient to abate the writ without
also deciding that the owner of chattels taken from him by a
trespasser, finding them in the possession of a stranger, who
bad taken them by replevin from the trespasser, cannot main-
tain replevin against the stranger. But the law will not au-
thorize such a decision; for no transaction between the stranger
and the trespasser can bind the right of the owner."
Our statute, it is true, makes provision for trial of the right
of property, before the sheriff and a judge, where any person
other than the defendant in replevin claims property in the
goods and chattels specified in the writ: Gould's Dig., c. 145,
sees. 17 et seq. But this remedy, unsatisfactory at best, is not
exclusive; the party may resort to any other remedy to which
by law he may be entitled.
In any view of the case, we think the court erred in quash-
mg the appellant's writ; and it may be here remarked that a
motion to quash was not proper practice, especially so as the
writ had not been returned. The defendants in the action
should have interposed their defense by plea in abatement or
Deo. 1866.] Tatlob v. JmxnB. 778
in bar. The plaintiff could ihen have come prepared to meet
the defendants on the issue as to the custody of the property.
Such has been the practice in all cases that have come under
our observation, except where otherwise directed by special
statutory provisions: Oaodrieh v. FritZj 4 Ark. 625; Spring v,
BaurUiTidj 11 Id. 658 [54 Am. Dec. 243]; Powell v. Bradlee A
Co., 9 Gill ft J. 220; lUUy v. 8tvlbb%, 5 Mass. 279; Shaw v. Levy^
17 Serg. & R. 108.
For the error above indicated, the judgment of the couit
below must be reversed, and the cause remanded for further
proceedings.
Bbplkw wi&l hot Lib iob Fbofkbtt hdd by an officer nndflr l^grf
pfoooHi Bfrtug T. Bamhmif 54 Am. Deo. 243; LewU t. B^ S2 Id. 78^ aai
notee.
DmnnunT zv Rsplsvis gahvov MAmxAnr Rmplbvaji agunst tho offioer
eoEeontiiig the fint writ^ on tbe gromid that the ^Mfoperiy wae not aabjeot te
■rinze^ for ae to him the property la in the onstody of the law: Dmarmom t,
BkMmmt 00 Am. Dm. 160i
Taylob V. Jenkins.
ra4 ABKiUlBAS. 887.1
ni Tm ov V^ab, V7ho o. — One who redded within the lineo ol
tin oonfederate army during the Ute war might be oonaidered pHma
faek as an enemy of the United States, and his property as enemy's
property, and liable to seiznro as snch. Whero the federal lines were
eitended over his place of realdenoe for a limited time, aad the oooapa-
tion of the latter army was preoarions, this does not change his state*.
Bat whero the oocapanoy of the federal troops is permanent^ a resident
within their lines is entitled to the protection of the law, and his prop*
erty is not subject to seizure, except for such causes as the law of neoea-
st^ in time of war justifies.
PfeZTATB PBOPXBTT 07 LOTAL OlTEEBrB 18 NOT SUBJSOT TO SXIZUBI ANB
ArPBonoATioii even for puUio use, nor to prevent its falling into the
bands of the enemy, unless thero existed a& absolute necessity for doing
so; and when an order is given to take the property, the discrotiooary
power given the ofBcer must be sustained by the facts then existing.
fffff«"«it Who Takxb Pbitati Pbofxbtt upon Ck>MMAND or ms Sufxbiob
OvnOEB may justify the taking under such order, but the offioer oom-
TnmsiArn^ him must be shown to have acted in obedience to the command
of his immediate superior, or he will be a trespasser whose acts will not
operate to divest the title of the owner.
Uhahthobisbd Sbisurx ov Oitizbn's Pbofibtt bt MnjTiBT Tobobi^ aad
plaeing it with other property of the army without marking it or other-
wise appropriating it^ does not divest the owner's titla.
774 Tatlob v. Jsnmn. [Ari
Ths opinion states the case.
EngUshj for the appellant.
By Court, Walkeb, G. J. Jenkins, the appellee, biooght
his action of replevin in the Jefferson circuit court against
the appellant, Taylor, for a mule.
The defendant filed pleas of non cepit and property in him-
self, to which issues were taken, and the cause submitted to
the court sitting as a jury. The court, after having heard the
evidence, declared the law governing its decision, and found
the issues for the plaintiff, and rendered judgment thereon
accordingly. The defendant moved the court for a new trial,
and assigned for cause that the ruling of the court was con-
trary to law, and that the finding was not warranted by the
evidence; which motion the court overruled, and thereupon
the defendant excepted, and in his bill of exceptions has
made the ruling of the court upon the law, and all of the
evidence, part of the record now presented for our considera-
tion.
Although the amount of controversy in this case is smaU,
yet upon looking into the state of facts presented, there are
but few questions of more general importance than this is.
It appears from the evidence of Taylor, the defendant in the
action of replevin was the owner of the mule in controversy
in the year 1863; that he bought the mule from a drover, and
had worked it on his plantation for some eight years; that in
1863, and after the federal army had taken possession of Pine
Bluff, near where Taylor lived, a federal scout came to his
house, arrested him and one other person there, and holding
them in custody, drove off some twelve or sixteen head of
Taylor's mules and horses, took them to Pine Bluff, and
turned them into a pen in charge of the United States quar-
termaster. There is no positive evidence that the mule in
controversy was one of those taken from Taylor and turned
into the lot, but from all the facts and circumstances of the
case, there is strong presumption that such was the case. It
is in proof that it was customary with the government officers
to brand stock so taken and turned over to the government
with the letters " U. S.," but that Taylor's mules were not
branded. The mule in controversy had no such brand. Ail
a matter of history, we know that the federal army occupied
Pine Bluff early in the fall of 1863, but how long after that
it was before the mule was taken firom Taylor does not ap-
Dec. 1866.] Taylob v. Jenkins. 775
pear in evidence. It appears, however, that shortly before
Christmas of that year, a son of the plaintiff traded for
^he mole from a stranger, — who that stranger was, or how
he came into possession of the mule, or how long he had
t>een in possession of it, does not appear; nor is it shown
whether he was a soldier of the southern or federal army, or
was a citizen in sympathy with either party of the belligerents.
The plaintiff proved that he got the mule from his son; that
«he remained in his possession until the fall of the year 1864,
when she was captured and taken from him by Vaughn's
•company of rebel scouts; that thereafter the defendant Tay-
lor found the mule in the possession of these scouts, claimed
and identified the mule as his, whereupon it was delivered to
faim.
Thus it will be seen that if Taylor, who beyond all ques-
tion (according to the evidence) was once the lawful owner
of the mule, was divested of his title to it, it was by tbrce of
the capture, by which she ceased to be his property, and be-
came that of the United States. If such was not the effect
of the capture, then the title to the property remained in
Taylor. The determination of this question will in effect
eettle also the law with regard to the second capture, and su-
persede the necessity of a separate investigation of it.
That the late war was a civil war, and that all of the rights
of belligerents apply and govern the conduct and the right of
both parties, we may, without reference to authorities, hold to
be fully settled in the case of Hawkins v. FiUdns^ 24 Ark. 286.
And we are left to consider whether the capture in this case
was such as to divest Taylor of his title to the property, and
fts a consequence necessarily following, to vest it in the United
States.
The first question to be considered is. Was the property cap-
tured "enemy's property"? To make it such, Creed Taylor,
*the then owner of the property, must have been an enemy to
the United States. If he had resided within what was recog-
iiized as enemy's country, that is, within the lines of the Con-
federate States army, uncertain and difficult as in many
instances it might be to determine certainly where the line
was, then, prima facie, Taylor might have been considered an
«nemy, and his property enemy's property; but we are not to
be understood as holding that this presumption might not be
removed by evidence tending to show what the real facts were.
There were, doubtless, individuals found, both within the fed-
776 Taylor v. Jenkins. [Arkansaav
eral lines and ihe confederate lines, whd were enemies to one
of the respective belligerent parties, and who, when ascertained
to be snch, might be treated accordingly. It is not necessary,
however, in this case, to attempt to lay down any rule for gen-
eral application, if, indeed, it would be practicable to do so, be-
cause each case must, at least to some extent, depend upon
the facts and circumstances connected with it.
In the case under consideration, Taylor resided within the-
federal lines at the time the property was taken from him.
The possession and dominion of the federal government over
that part of the state in which Taylor resided was not tempo-
rary, as in the case of the occupation of that part of the state
of Louisiana in which Fort De Russy was situated at the time
Mrs. Alexander's cotton was captured. In Mrs. Alexander's
case, it was argued with much plausibility: "That the moment
the people were released from rebel military rule, the political
and military power of the usurpers was broken, and the juris-
diction and authority of the United States were supreme. It
gave to the loyal citizen that dominion over his property, ac-
companied with rights of property, such as he enjoyed before
this rebel rule intervened." As a general proposition, this was
held to be true, but the court said: ''The occupation of that
part of Louisiana in which Mrs. Alexander resided was too lim-
ited and too precarious to change the enemy relation created
for the country and its inhabitants by three years' continuous-
rebellion, interrupted at last for a few weeks, but immediately
resumed, and ever since maintained": Alexander's CotUm^ 2
Wall. 418.
If, however, the occupation of that part of Louisiana near
Fort De Bussy had been permanent, as it was at Pine BluflT
and its vicinity, there can be no doubt but that the court would
have held the capture of Mrs. Alexander's cotton unlawful,
and that she was entitled to compensation for it.
In view of this authority, and guided by the rules which
we have stated, it cannot be said that the defendant, Taylor,
was an enemy. He resided at the time the property was
taken from him within the established permanent liues of
occupation of the federal army, never thereafter interrupted,
and had, as far as appears in evidence, been loyal. The laws
of the United States, which had been suspended by forcible
adverse occupancy, followed the national flag, and the citizens^
resident within the territory thus reclaimed were entitled Uy
the protection of the law. Taylor, being thus a resident
Dee. 1866.] Tatlob v. Jbnkinb. 777
wifhin Buch territorial limits, was not an enemy, nor was hi»*
property subject to seizure for other or different purposes than
such as the law of necessity in time of war justifies.
Chancellor Kent, after reviewing the earlier practice under
the laws of war, says: "The general usage now is, not to
touch private property upon land without making compensa*
tion, unless in special cases, dictated by the necessary opera-
tions of war If the conqueror goes beyond these limit»
wantonly, or when it is not clearly indispensable to the just
purposes of war, and seizes private property of pacific persons-
for the sake of gain, .... he violates the modem usages of
war, and is sure to meet with indignant resentment, and to be
held up to the general scorn and detestation of the world": 1
Kent's Com. 91-93.
In Mrs. Alexander's cotton case. Chief Justice Chase saysr
" It is true that this rule, as to property on land, has received
very important qualification from usage; from the reasonings
of enlightened publicists, and from judicial decisions, it may
now be regarded as substantially restricted to special cases,,
dictated by the necessary operation of the war, and as ex-
cluding, in general, the seizure of private property of peaceful
persons for the sake of gain. The commanding general may
determine in what special cases its more stringent application
is required by military emergencies."
" By the usages of modern war, the private property of ant
enemy is protected from seizure or confiscation as such":
Lawrence's Wheaton, 631.
In the light of these authorities, except in some special
cases from the necessity of which the officer in command
must act, and in which, in his judgment, it is necessary to
take the property to promote the public service, private prop-
erty is not subject to be taken by the military. The property
of Taylor, under the circumstances of the case as presented
to us, was not subject to either capture or seizure by military^
authority. It is not shown that the capture was made by any
order or command of a superior officer, or other directions*
than that of the witness Jenkins, who states that he was in
command of a federal scout, who took the mules from Taylor.
The rank or grade of the officer, if such indeed he was, is not
stated. The purpose for which the scout was sent out is not
shown; nor is there any inference to be drawn from existing^
circumstances that mules were needed for military purposes.
It was held by the supreme court of th^ United States ia
778 Taylor v. Jenkinb. [Arkaanop
* the case of MiieheU v. Harmony^ 13 How. 134| that even whoa
inyading the enemy's countryy when each day's maroh marked
the line of enemy's country, the private property of a loyal
citiien was not subject to seizure and appropriation, even fiir
public use, nor to prevent its falling into enemy's hands, un-
less there existed an absolute necessity for doing so, and that^
when an order was given to take the property, the discretion-
ary power given the officer must be sustained by the facts
then existing. And whilst officers may exercise a discretion-
ary power in effecting that which they are required to perform,
soldiers under their command have no such discretion. They
act under orders, are in fact the instruments through which
orders are carried into effect. Vattel says: *'The troops, offi-
cers, soldiers, and in general all of those by whose agency the
sovereign makes war, are only instruments in his hands. They
execute his will, and not their own." The soldiers who took
the defendant's mules under the orders of an officer (if indeed
he was such) might justify under such order; but until the
<ifficer who conmianded the act to be done be shown to have
acted in obedience to some order of his immediate superior,
lie would stand in the relation of a trespasser, and as such
would be liable for his acts, or the acts of those under his com-
mand; and if a trespasser, then the legal right to the property
was not affected by such act.
Whether the mule in controversy was one of those taken
«nd placed in the quartermaster's pen is not very clear; but
admitting such to have been the case, there is no proof that
the mule was either branded, used, or sold by the military
authorities, and soon thereafter it was found in the hands of
« stranger, but whether a soldier or a citizen does not appear,
from whom the son of the plaintiff purchased the mule, and
sold it to the plaintiff, who held and claimed it until the fall
of 1864, when it was captured from him by a confederate scout,
near one Carson's; but whether Carson lived within the federal
or the confederate lines does not appear; nor is it shown
whether the plaintiff was in sympathy with or acted with one
or the other party belligerent. In the absence of these facts,
we cannot say whether the plaintiff's title was or was not af-
fected by such v^apture. For aught that appears in the evidence,
we might, upon principle, say that it was not; but of this we
need make no further investigation, because we are, in view of
the whole case, of opinion that such capture as is shown by
the evidence did not divest Taylor of his title to the mule;
Deo. 1866.] Taylor v. Jenkins. 779
and that the drcnit erred In declaring the law to be other-
wise, and upon the state of facts presented in rendering jndg*
ment for the plaintiff; and that for such erroneous ruling of
the law and finding a new trial should haye been granted.
Let the judgment be set aside and reversed, and the cause
remanded for further proceedings.
Who arx Enxmixs. — Vattel says that an enemy "is he with whom a
nation is at open war." Continuing, he says: "When the sovereign or ruler
of a state declares war against another soTereign, it is nnderstood that tbo
whole nation declares war against another nation; for the soyereign repre-
sents the nation, and acts in the name of the whole society, and it is only in
a body, and in her national character, that one nation has to do with an-
other. Hence those two nations are enemies, and all the subjects of the one
are enemies to all the subjects of the other." Again he says: "Enemies
oontinue such wherever they happen to be. The place of abode is of no
eonsequence here. It is the political ties which determine the character.
Whilst a man continues a citizen of his own country, he is the enemy of
all those with whom his nation is at war ": Vattel's Law of Nations, 321, 3222;
see also 1 Kent's Com. 94. An enemy is defined in Bapalje and Lawrence's
Law Dictionary as follows: " A nation at war with another nation; alao» a sub-
ject or citizen of such belligerent nation^ or a subject or citizen of any other
nation assisting or in the service of such belligerent nation. '* This is substan-
tially the definition given by Abbott: Law Diet., tit. Enemy; and by Glass:
Marine International Law, 26. Strictiy speaking, the confederates in the late
war of the Rebellion, did not come within this definition. Accordingly, we find
Mr. Justice Field, in UnUed Stales v. Oreailiowe, 4 Saw. 466, saying: "The
term 'enemies,' as used in the second clause [of the United States constitu-
tion], according to its settied meaning at the time the constitution was
adopted, applies only to the subjects of a foreign power in a state of open hos-
tility with us. It does not embrace rebels in insurrection against their own
government. An enemy is always the subject of a foreign power, who owes no
allegiance to our government or country." Different reasoning was employed,
and a different conclusion reached, in MommgcJiela Ins, Co. v. Chester, 43 Pa.
St. 494. This was an action on a policy of insurance on a vessel which was
captured and destroyed by the confederates. The policy covered losses by
enemies. The court said: " The case stated finds the seizure to have been
made by an armed force in military array, acting by authority of a recently
organized government in rebellion against the government of the United
States. In substance, it was a state of war, and truly on a gigantic scale,
and which has progressed in proportions more formidable than any national
war of modem times. Many and bloody battles have been fought between
the forces of the rightful government of the United States and those of the
usurping goTemment of the states in rebellion, and the political organization
of the latter has hitherto been maintained. Indeed, our government, through
the dictates of humanity, doubtless, has adopted the usages of lawful war
towards these enemies, and this has been reciprocated by them. Prisoners
have been exchanged under cartels settied in the usual way, flags of truce
are respected, and captures at sea made and adjudicated to be lawful prizes,
and the usages of lawful war been generally observed between the belligerent
parties. It is therefore a war in substance as essentially as it could be be*
780 BLAinu V. Bbotob. [AAaosM^
tireeii f oragB pairwk The foroe is thaaaine, the peiil to property llie
•ad henoe the faideomity, I think, might fiiily hwe heen rested upon Hie
nme reaBon. This treatment of the oontest by our gorenmient^ and the
civilised muiner in which it has been oondnetedy will nevertheless not
/educe the rebellion below treason in face and in spirit^ or redeem those
engaged in it from the odinm of being traitors towards their rightful goTcm-
ment." Even stronger langoage is employed in The Prke Casea^ 2 BUck,
673, where the oonrt say: "Under the very peculiar constitution of this gov-
emment^ although the citisens owe supreme allegiance to the federal gov-
emment» they owe also a qualified allegiance to the state in which they are
domiciled. Their persons and ptopsrty are subject to its laws. Henoe, in
organising this rebellion, they have aoted as states daimiug to be sovereign
over all persons and property within their respective limits, and asserting a
fight to absolve their citisens from their allegiance to the federal govern-
ment. Several of these states have oomluned to form a new confederacy^
claiming to be acknowledged by the world as a sovereign state, l^eir right
todosoisnowbeingdeddedby wager of battle. The ports and territory of
each of these states are held in hostility to the general government. It is
no loose, unorganised insurrection, having no defined boundary or possession.
It has a boundary marked by lines at bayonets, and which caa be crossed
only by force; south of this line is enemies' territory, because it is claimed
and hdd in possession by an organised hostile and belligerent power. All
persons residing within this territory whose property may be used to in-
erease the revenues of the hoetile power are in this contest liable to be
treated as enemies, though not foreigners. They have oast off their allegiance,
sad made war on their government, and are none the less eoemies because
they are traitors.
Blanks v. Begtob.
124 AaXAHSAB, 498.1
BzBOonoK WmcB Isam upoh Judomint recovered sgainst a man in hie
lifetime against his executor, which bears teste after his death, is irregu-
lar and void, whether the judgment was against him individually or
against himself and others jointly. In the latter case, if the death had
been suggested of record, the execution could issue against the surviving
defendants.
ItaouTtoix A3 lasuiD MUST BB Wabbaiited bt Judombnt.
SzBomnoK mat bb Axbitdbd in Mattbbs of Fobm and as to derioal eiron
and omissiona^ but it cannot be amended as to matters of substaaoe.
Thb opinion states the case.
Rieej for the appellant.
Wdtkins and Roae^ for the appellees.
By Court, Clbndenin, J. We learn from the record in fhia
case that on the 8th of November, 1860, the appellant recovered
in the circuit court a judgment against John T. Trigg and
Henry M. Itector; that execution was issued on said judg-
Dec. 1866.] Blanks v. Rector. 781
loent, and levied on personal property; and that Trigg and
Rector, on the 12th of April, 1861, executed and delivered
to the sheriff a delivery bond for the delivery of the property
on the 6th of May, 1861, with the appellees Peay and Brown
as their securities; that the property was not delivered, the
execution was returned unsatisfied, and the delivery bond for-
feited; that on the 24th of August, 1866, an execution was
issued on the forfeited delivery bond against Edmund Bur-
gevin, administrator of Trigg (the execution having recited the
death of Trigg and the appointment of Burgevin as adminis-
trator), Rector, Peay, and Brown, which was levied on the
property of appellees Peay and Brown. At the return day of
the execution, the defendants in the execution, and appellees in
this court, presented their petition in the circuit court, setting
out in full the foregoing statement, and also filed their motion
to quash the said execution for the following reasons: ^'1. That
said execution is improperly issued against said Burgevin as
administrator of said Trigg; 2. That the said execution was is-
sued before there was any revivor of the said judgment." After
the filing of the petition and motion, the appellant filed his mo-
tion to amend the execution " by striking out the name of Ed-
mund Burgevin, adminifltrator, and by suggesting on the fact
of said writ the death of Trigg, said Trigg having died since
said judgment was rendered." Both motions, to quash and to
amend, were heard at the same time. The court overruled the
motion to amend, and sustained the motion to quash the exe-
oution; and the appellant excepted, and appealed to this
court. At the hearing of these motions, it was admitted that
Trigg had died after judgment, and before the execution was
issued.
The first question in the consideration of this case is as to
the validity of the execution.
This execution was issued after the death of Trigg, against
Burgevin, as administrator of Trigg, Rector, Brovm, and Peay.
The execution was clearly irregular. The law, we think, is
well settied that an execution issued and bearing teste after
the death of the testator is irregular and void: AdamsonY.
Cummins, 10 Ala. 541; Davis v. Oswalt, 18 Ark. 414 [68 Am.
Dec. 182]; James v. Marcvs, 18 Id. 421; Homor v. Hanks, 22 Id.
673; Woodcock v. Bennet, 1 Cow. 740 [13 Am. Dec. 568]; Erwin
V. DwndoA, 4 How. 76; and we think the law is equally appli**
cable where there is more than one defendant in the judgment.
In the case of Woodcock v. Bennet, 1 Cow. 740 [13 Am. Dec.
782 Blanks v. Rector. [Arkansaa:.
568], in which a question similar to the one now before ns
argued, the court say: " It is no answer to say that one of the-
defendants was living, who might avoid the execution, and has-
in fact procured it to be set aside. The objection is, that the
law forbade the issuing it so as to affect the representatives of
the deceased defendant."
It is a settled rule that the execution as issued must be wai^
ranted by the judgment: 2 Tidd's Practice, 1029.
If the death of Trigg had been suggested of record, we think
the execution could properly have issued against the survivinc^
defendants in the judgment: Ermn v. Dwridas^ 4 How. 76.
Another of the grounds assigned for error is that the court
below overruled the appellant's motion to amend the execution.
It has been decided by this court in the case of TfiompsonY.
Bremagey 14 Ark. 59, that executions may be amended in mat-
ters of form, and we have no doubt the same rule should apply
as to clerical errors or omissions before sale under the execu*
tion; but we can find no authority that sustains the position
that an execution can be amended in matters of substance.
To have allowed the amendment asked for, the court would
necessarily have had to inquire of facts outside of its own rec-
ord; for it is not contended that the records of the circuit court
showed that Burgevin, as administrator of Trigg, was a party
to the judgment, or that the death of Trigg had been suggested
of record; consequently, there was no record of the circuit court
to amend by; and therefore, the execution being illegally and
improperly issued, the circuit court did not err in its judg-
ment in quashing it.
The judgment of the circuit is affirmed.
AinirBiiSRT OT Exsounoirs: See McOormick ▼. WhoeUr^ S5 Am. Dee. S88|
Durham ▼. Headon, 81 Id. 275, and notes oolleoting prior oases.
DXATB OT PBBSOUT AGADrST WhOM JuBCMXNT HAS BBBN BjB0OVXBB>—
BrFKCT UPON ExBOunoN: See ElUott v. KnoU, 74 Am. Deo. 619; OcUki^*
AdnCr ▼. WMham, 62 Id. 767; Danis y. OtwaU, 68 Id. 182, and notes; 8te^
art y. NuehoU^ 50 Id. 127; 8wmk ▼. Snodgrass^ 52 Id. 190; Swrnigm ▼. Mbtr-
lM^38Id.463.
BziounoN icusr PuBstni axd u Warbahtid bt Jvmimxht as OBnouft
BuLS: SfntU ▼. SM, 56 Am. Deo. 549,
INDEX TO THE NOTES.
■tata, 810.
f ofeign, suitB l^, in ooorta of aaolliar stete^ 809, 810L
loreagn, tnyuf era by, 809.
Aldiont, appeal from jadgment for, efiaoi (4 668.
defined, 669.
modifioation o( by subfleqnent prooeedingi, 667.
mit for, after decree of diroroe, 668.
AauoNiB, foreign, under bankrupt laws of other itate^ 8101
AauomfXHT, bill of ezoeptums does not operate aa, till aooapM, 17IL
draft or order, when operatea aa, 178.
Attobitzt, oompromiae, no authority to make^ 141.
Bahkxb, lien of, 174.
BoHA FiDB PuBOHABxn of stocka in poaanarion dt aaothar thaa tlM
297.
BODSBABXXB, meander line^ 67.
goyemment auryeya oontrol, 701.
plata referred to^ 701.
Oabbixrs, baggage depoaited in warehonae, 671.
contract exempting, from liability, 667.
OoiryxTANOB from husband to wife, validity of, at common law^ BL
from husband to wife, validity of, in United Stataa, 66.
OoBPOBATiov, bill to compel it to perform public dutiaa, 6S7«
CkMTiB, attorneys' fees, 182.
ehaigea for care of property, 182.
daim for, must be supported by some statute, 18L
distinction between, and fees, 181.
expenses for room rent, fuel, lights, etc., 184.
expenses for serviag summons, 184.
ezpeDses of copies of deeds, 184.
expenses of executing commiasioo, 183.
expenses of printing briefs, 184.
expenses of services of experts in preparing for trials 194
expenses of surveys, 184.
fees of commissioners, referees, and other officer^ 199L
fees of officers are, 192.
laea ol atanographer for notea, 182L
laea ol witneaaea who were not aubpcsnaed, 188L
784 Index to the Notes.
Oo8TS» include all neoessary disbonement^ 182.
in equitable actions axe not dependent on statate^ 18L
in federal ooortB, 184.
in federal courts, expense of printing evidenoe^ 18SL
judgment for, can only be in favor of party to the aotioBt 18&
prevailing party is entitled to^ 181.
printing papers to be used at the hearing, 184.
reasons for awarding to prevailing litigant^ 181.
right to recover is of statutory origin, 181.
witness fees, 162.
witness fees, attorney is not entitled to, 183.
witness fees, party, when entitled to, 183.
Cbxditor's Bill to reach surplus of fund devised to debtor lor his
241.
Okooxaj^ Law, insanity enfBcient to excuse crimen 70^
malice is imputed from every homicide, 74.
murder, provocation suffident to reduce grade^ 7ft.
murder, self-defense, what is, 75.
Damaoss allowable when lands are taken for public use, 11^121.
assessment of, on default^ defendant's right to offer evidence^ 877.
nominal, for taking property of another, 144.
suffered by one person from misrepresentations made to
recoverable, 442-444.
vindictive, defined, 144.
Dboxzt, action for, plaintiff must show that defendant's
were made to be acted on by him, 442.
action for, third person, when may recover, 443.
by prospectuses, etc., 444.
Dbdioation, fee does not pass by, 67.
to public use, imposition c^ additional servitade givM a cinae «C tm*
tion, 67.
DxxD, parol evidence as to consideration^ 471.
Definition of double insurance, 482.
of enemy, 779.
of mobs and riots, 267.
of vindictive damages, 144.
DrvoBCX, alimony, modifying after, 657.
alimony, suit for, after, 658.
fimiiBNT Domain, damages, assessed value of lands not admiwiMii m •?!•
dence of, 118.
damages, difference between value of land before and after tikii^ k »
fair test of, 11&
damages from cuts and embankments, lift.
damages from increaaed danger of fire, 116.
damages from necessity of constructing fenoea, 116L
damages from obstruction to drainage, 115.
damages from taking for railway purposea, elemonti o^ 114
damages, how to be estimated, 116.
damages, interest as, 121.
damages, measure of, 116.
damages must be paid in money, 121.
damages must be given in all oaaes^ 118L
Index to the Notes. 785
DoHAZir, damagesy opinion of witnMiot, 118.
dunAges, Bales as e^dsnoe of, 119.
damages, specolatlye^ not allowed, 120.
damages to mill from making it dangevona for team to rnggnmA, lUk
damages to part not taken, 114.
damsges to riparian ri^ts, 115.
damages to whole tract must be giTsn, lltK
damsges valns of land, 117, 118.
damages where land was wrongfally seised and improremmta pnft
thereon, 120.
damages where one railway takes the Isnd of snotfaeri IVk
damages where pert of the tract is taken, 114.
damages where whole tract is permanently overflowed, 114^
damages where tract is taken, 113.
improTements wrongfiilly pnt on lands most be allowed for, m
Stidxncs, declarations ss to injuries, feelings, or snfiforingSy 800.
of bodily health, 3G0.
of threats by prisoner, 524.
of threats by prisoner to kill one person as evidsnoe of pnmeditiftlon Ie
killing another, 524.
BzBODTiON, life insurance policy, whether sabject to^ 680-684.
ssle en masae not void, 688.
tmst for snpport of defendant^ when subject to^ 241.
Faoiob, lien of on goods consigned, 176.
Highway, trareler departing from, when may reoover for injoiy, 046.
GoMiSTiAD, reforming mortgage on, 684.
&U8BJLin> AMD Wm, oonyeyance from hnsband to wife intended as a settts
ment. 66.
conveyance from one to the other, whether enforceable in eqvi^f $L
eonveyanoe from one to the other, whether vslid at law, 64.
volnntsry conyeyance from husband to wife, 65.
IirifKXBPXB, liability for safety of goods of gnest, 409.
luBURAiiCK, conveyance by one partner to the otiiers, 348.
doable, defined, 482.
damages, measnre of, where insurer elects to rebuild and fsilfl todo so^ 40iL
fraud or mistake of agent as ground for relief, 649.
forfeiture, oonSlitions of, are strictly construed, 348.
•encumbrances, misrepresentations concerning, 649.
life, assignment of, by wife, 633.
life, assignment of, when a fraud on creditors, 630.
life, creditor's bill to reach, 531.
life, creditor's biU to reach premiums, 533.
life, oral assignment of, 531.
Hfe, proceeds, whether subject to creditor's claims, 633.
life, statutes authorizing, for benefit of wife and children, 632.
life, withdrawal of moneys for premiums, whether a fraud on eredHofl^ 68QL
subsequently purchased goods, 349.
IXTEKFRSTATioif of Conditions of forfeiture, 348.
of contract, sense in which pronusor had reason to suppose pronlsea
understood the words used, 348.
of contract should be to support rather than t^ deffat» 848.
Am. Dig. Vol. LXXXVIU-^
1.
786 Index to the Notes.
vT r/ oonfearion, 396.
equity will not interfere for mere irregnlaritieti, 706w
Lkasb, assignee of, whether liable for rent before entrji 8S9L
Ldeh described and defined, 69.
liiBBXP&BSXNTATioN, fraudnlent, damages for, vrho may zeoorer, 4flL
frandolent, made to another, plaintiff oaonot zeoofer for» 442L
fraudulent, made to commercial agency, its enstooien maj woofer §a^
• 444.
fraudulent^ made to deoeiye a daas of penooB^ 444.
fraudulent, made to one person to be oommimioated to aaotfaer, 44Si
fraudulent, person to whom it was not made cannot zeoorar theielcrp 4lflt
made through a prospectus, 444.
Hobs defined, 267.
liability of cities for, 267.
HoBTOAOB, chattel, title and right of posMSsion of mortgages^ 148.
to secure notes falling due at di£Eerent times, 161.
HuinoiPAL CoBFOBATioNB, action against for damages done by moba;
the plaintiff gave no notioe of iqvprehended danger, 268.
action against, for damages done by mobs, what must be showB^ S67.
mobs defined, 267.
mobs, legislature may impose liability for, 267.
mobs, liability for, 267«
mobs, measure of damages for property destroyed l^, S70l
mobs, mere combination of boys, or even of men. Is not^ tQ7*
mobs, plaintiff at fault cannot recover for, 268b
notice to, of threats by mobs, 268.
KioiJGSNOi in permitting escape, 274.
plaintiff must show that he used due care, 427.
OmoKB having certificate of election may assume and hold cAco till i
dded not to be entitled to, 416.
Fabtubbship creditor without judgment cannot enjoin creditor d
of firm, 235.
negotiable instrument drawn by one partner, 477.
negotiable instrument drawn by partner as member dt ono firm and ift»-
dorsed by him as member of another firm, 477.
Patioert, presumption of, from lapse of time, 690.
presumption of, from lapse of time, how rebutted, 600L
FkuuMjrnoN of payment from lapse of time, and how it may be rebtttte^
590.
Razlboad, contract waiving right to recover for personal injuries^ 836.
negligence in operating running switch, 360.
passengers, care due to, 427.
passenger must inquire when, where, and how he can go or atop eiveiw.
207.
regulation requiring ticket to be bought before entering can, 206b
•tage-ooach, injury to passengers of; 360.
^pnlation that company shall not be aagwenUe lor 11^)1117 to party e»
hie servants, 337.
ttoket is not the whole contraol^ 907.
Index to the Notes. 787
Rmim, mit by, in stato in which he was not appointed, 909.
Reflstin, plaintiff having special property, what may reoover, 7S4.
Rkpri8Bivtatio:«, frandnlent, damages for, wh* may reooTer, i42-444i
Bight of Wat across a lot» where enters and terminates, 280.
established by prescription, extent of, 279.
for one purpose does not indade another, 280.
gates across, grantor may erect, 282.
in all direotionB cannot be established by presoriptiiNiy S80L
is confined to purposes for which granted, 286.
land-owner's right in lands subject to^ 281.
* owner of, may go outside of, 281.
owner of, may repair, 281.
reasonable use of, is a question for the jury, 280.
to one tract of land must not be used to reach another, SSL
Enmi, title of itparian owner adjoining, 67.
SiBTinrPB to reoeire water, extent of, 457.
to receire water nrast not be made more oiiaroii% 467.
Sbebxtf, sureties of, liability for conyersion after ezpintloB of offldal ttttm,
462.
Slutdsb, ambiguous words, alleging meaning of^ 699L
malice, when implied, 639.
Btaob-ooach passengers may recover for injuries resulting from negleot <d
third person, 360.
SuRsma, liability for oonversion by principal after term of office, 462*
Tax Dbxd, defective in form, purchaser is entitled to another, 692.
restraining issue of, 707.
Tjjom, assessment of, not avoided by omission of other property by mlalaki^
711.
benefits sufficient to sustain, 725.
injunction against collection of, what warrants, 725.
to raise moneys to pay bounties to volunteers, 725.
Tax Salx for too large an amount is void, 707.
irregularities, legislature may require owner to pay taxes notwithstand-
ing, 711.
TiRANOT BT ENmurnxs, husband's deed or mortgage of lands held by, 696L
TowK, duty of to keep roads in repair, 6i5.
UvmD Statis IffARSHAT., actlou against in state courts, 675.
VnsxLB, part owners, act of one, when deemed authorized by the othsti^
part owners, actions between, 367.
part owners, actions against third persons, 368.
part owners, disagreement of, 367.
part owners hold as tenants in common, 364
part owners, jtu accreacendi not allowed between, 865.
part owners, lien of, 367.
part owners, liability of, is joint, 368.
part owners may hold as partners, 365.
part owners, property of, how may be acquired, 864.
part owners, relations to each other, 366.
part owners, remedies and actions between, 867.
Wab, enemy, all subjects of nations which are at war, 7791
L
788 Index to the Notes.
Wab, enttmy oontmnes sach no matter where he is, 770.
enemy defined, 770.
enemy, rehel is not an, ^9.
WAUUurrr of quality not implied beoMue Tendor knew porpoMcl pvvohaM^
436.
Watib, land-owner has no right to atop flow ci^ 467.
aervitade to receive irom upper eatete^ 457.
Wmraas, croaa^aTnminatiim, coUatend mattera, when praper and htm hg
may he puraued, 821.
eroaa-examinatioD, collateral matter, how far bonmd hf tha
privilege to relnae to answer queation% 820.
qneationing with a view to dii|giae% Ml
INDEX.
AOOOUin!&
ov Aaodowi must bb m Wiiroro mnnm feAfim^ sot It n
mr AawiLUTaLY Nbobbabt tbAt the wntiiig be upon the nine pleoe d
peper m the Mooont. Bot if the Mooont Is in the yommnm d the ae-
■ignor at the tiine he ie oUimed to have aoigned it^ and the aiwignmmt
ia not upon it^ it wiU at leaat throw some donbt upon hia intntioB ta
angn. Ford v. AngebwU, 174.
See Aamor, 6; Anuxpsir, 1; Fioiobs^ 1.
ADVEBSB POSSESSION.
L Aimnn PoflBHnov— Diydion Likk. —It is the intention whidi makei
posBSSBJon adverse. The possession mnst be with the intent to daim
against the true owner; oonsequently, where parties designate a division
line throng ignorance or mistake, the possession held by either wfll not
be adverse. KnawUon v. Smiih, 162.
& AwxBa PdsaissiON— Verdict Failiho to Show. — Verdict that de-
fendant has held quiet possession of the disputed premises more than
twenty years does not estabUsh adverse possession, as there is no appar-
ent intention to so hold. Id,
AOENOY.
^ L PftnroorpAL o Bouhd bt Aoib and Cohtbaots of Aobht, dime with his
eonsent» or by his anthority, or ratified and adopted by him; bot he is
entitled, as the ultimate party in interest, to all the advantages and
benefits of snch acts and contracts, as against third parties with whom
hii agent deals. And it is immaterial that the agent is a factor nnder a
del crede commission, or that the principal wss unknown at the time, or
that the third person dealt with the agent, supposing him to be the sole
prindpaL Foster v. Smithf 604.
& FitZMOiPAL HAT Sub upon Contract Madb bt Aobbt, without giving no-
tice of his interest, although the other party to the contract supposed
the agent to be acting for himself, subject, however, to such other party's
rights against the agent. Id,
1, Party Ck>NTRAemTo under Assumed Charaotxr of Agent, either con-
cealing or falsely representing the name of his prindpal, when in fact he
is the real prindpal, cannot sue on such contract, as principal, without
notice to the other party of his real character. IcL
4, Aoent mat bb Justified, under Extraordinary Cibou]C8Tangb8^ in as-
suming extraordinary powers, and his acts, fairly done, will bind
prindpaL Id,
T89
790 Index.
.&. AosKT Who, havino Rjoeivei> Monxt of his Pboicipal to Pmouc
Cbbtadi Trust, Wholly Oiots to perfonn his dnty, and oonTerts the
money to his private nse, thereby renders himself liable to an action ex
delkto, or to an action of assumpni for money had and received to the
vse of the plaintiff. But where he actually enters upon and peifoniis
tiie duties of the tmst, neither of snch actions will lie against him for
the recovery of an alleged balance of money so introsted to him. Tho
semedy against him is by action of aooonnt render, or by bill in eqni^,
JUetide's Mr v. neeMt, 503.
See Deceit; Factobs; Tbubt8» 4.
ABBTTRATIOK AND AWAfiD.
See ArroaMET Ain> Cuert, 8.
ARREST.
See Malusous Pbosboutioh.
ASSIONMENXa
1. Cbobbs in AonoH are Assioir able in New York, so as to penult ^Sbm
assignee to sue in bis own name. Pefeyvenv. GAtftnaoalBosiib^ 298.
& Right to File Bill to Set aside Leqal Ivstritiiemt iob Fraud cook-
mitted upon assignor is not assignable; so a right of action to set aaida
a release from the obligation of a covenant^ on the ground tiiat such re*
tease was fraudnlently procured, cannot be assigned by the oovenanteeu
jrOtoatOM and MinnetotaR. B. Co. ▼. Milwaukee and Wedem B. IL Co.,
74a
8ee AooouvTS; CoBVOBATiOEa^ 8; Insurakcb, 10; Lahdi4»rd ahd Tesawti
Nbqotiable Instrukentb, 8.
ASSUMPSIT.
1. When Pboiose, Bzfrbss or Imflecd, Involves Duty or DouBor Pat-
meet to the plaintiff aeemnpsU is the proper form of action; but where
the duty is not direct, but one of outlay in the performance of a trail
or business which from its nature requires an exhibit of the sums ex-
pended before the direct duty can arise, the legal requirement is to
render an account, and asmtrnpaA will not lie until the balance be asoer-
tained. Beeside's Ex*r v. Beeside, 603.
1. Breach of Duty Arkino out of Implied UNDBRTAKiNa to do Act Re-
QUIRING Skill or fidelity may be the subject of an action of aeem^eU
upon the implied promise, or of an action upon the special case for the
tort The breach of duty, and not fraud, is the foundation of the ao-
ticn. Id.
S. Party Who Declares in Assumpsit, and seeks a recovery on a special
eoQtraot, is bound by it. Baltimore and Ohio B. B, v. BaOAom^ 664.
See AoENCY, 5; Common Oarbters, 3.
ATTACHMENT.
SOS KXEKFTIOKB, % 4; JURISDICTION, 2, 4; SKEBOiai 8^ 0.
ATTORNEY AND CLIENT.
1. BnFUidinoN between Attorneys in Case, that Judomemt nnREni
should be Same as in Another Case, then Pendinq» in whieh tlis
Imdsz. 791
qneiiMa wm inyolved, is valid, and wOl control the judgment of
•neh oaae. That the question involTed in the case in which the stipola-
tion was giren has been changed by the repeal of an act of the legis-
lature is immateriaL NwikMinimri R, R. Co. ▼. Stephens, 138.
% AsTOBKXT HAS PowEB TO BiND HZ8 CuBUT ABOtTT HI8 Oasx by many
entries he may make in the docket^ — agreements about continuances, ad-
missions shout evidence, or the general conduct of the triaL He may
submit to arbitration a case actually pending in court, but has no right
to enter into a compromise without the consent of his client. Id,
BAILMENTS.
L Dbknut of Monet, Mandatum, Liabilitt of Mahdatabt. — The plain-
tiff's agent collected money for plaintifiG^ and turned it over to defendants
at Salt Lake, to be forwarded to plaintiffs at St. Loms, and defendantl^
for the purpose of so transmitting it, purchased a draft on the United
States treasury with this money and money of their own, and sent the
same to their agent to be collected and paid to the persons entitled, in-
duding plaintiff. The draft was refused payment, and defendants were
compelled to settle for one fourth its face value. Li an action by plain-
tiflb for faulure to pay them their entire amount^ it was held that an
instruction that they were entitied to recover was erroneous, that defend-
ants' contract was a mandaiumf that they were bound to exercise only
good faith and dae diligence, and that the determination of this fact was
for the jury. Bddp v. Livingaton, 122.
t» Bailment, Obligations of Gratuitous Bailee. — No general rule can be
laid down which will be applicable to all cases of gratuitous bailment^
for with regard to the care necessary to be taken much depends upon
the drcumsiances of each particular case, and the character and value of
the thing bailed, and its liability to loss or injury. Id,
S. Bailment. — In Cases of Mandatum where Services are Wbollt
Gratuitous and for the benefit of the mandator, the mandatary is bound
only to slight diligence, and responsible only for gross neglect Id.
4. Gratuitous Bailment of Baooaoe after Liabilitt of Carrier has
1 BEEN Discharged. — Where a passenp^er on a railroad train, after ar-
1^ riving at the end of his route, takes his bsggage into his own exclusive
possession and control, but afterwards, for his own convenience, re-
delivers it to the baggage-master at the depots to be kept until sent for,
the railroad company is not liable for the baggage as a common carrier.
It is a gratuitous bailment, and the company is liable only for gross
n^gligenoe. Mkwr v. Chkago <fe N. W. Ky Co,, 670.
See Innkeepers.
BANKS AND BANKING.
L Banxino — Recvyert of Monet Collected bt Bank. — Where plaintifl
deposited two drafts with a bank for collection, and this bank indorsed
them over '' for collection " to a second bank, between which two insti-
tutions there had been mutual and extensive dealings as bankers, by
I which the first bank owed the second a balance of two thousand dollars,
and where the latter, upon collecting these drafts, applied the amount
thereof to the payment of this indebtedness, where it does not appear
that there was any such mutual understanding or previous course of
dealing as would justify the inference that these drafts were paid in to
792 Imdbx.
tfaa Moond bank m leouitiiM on aoooont^ ct ireM pennitted to bo
ited on Meoant whea raooived, or thai the ptooaocbiraro to be plioed t»-
their credit in payment of previoos edvancee or the geneiel brimioii^ or
that a oredit was extended on the liUanoe of aooofont on the luth of
BOoh remittanoea, the real owner of the drafta may maintain an aotioo^
to reoorer their amonnt. MUUhm ▼. ShapUighf 171.
% Olajjsk dt Dsfosit-book as Follows: '^Bepoaitora an alone reaponaibla
lor the safe-keeping of the book, and the proper withdzawal of their
money. No withdrawal will be allowed without the book, and the book
ia the order for the withdrawal," — must be taken to have made part of
the conttaot between the depoaitor and the bank, entitling the latter to-
the prodnotion and offar of the book upon a demand for the depoaik
Brndk ▼. Portmo¥th 8avhg8 Bank, 104.
See NnoaiiABLn iHSTBViannn^ % &
BOTIOMBY.
See BBimsQp 8^ 1&
BOUKDABIEa
L OoBsaonnaB of Boundabus ov Pubuo LAxma, aa ahown by the gofran-
ment plat and survey under which salea have been mada^ cannot be qnea*
tionecL Schurmaer v. Si, Paul etc R. R, Cb., 69.
% Wbxrb Pitblio Lands Bobdebiko ov Stbsam navigable in fact are ahow»
by the government survey and plat, under which sales have been mad%
to be bounded by a river, the margin of such river, and not the meander
lines run by the surveyor, must control in determining what amount of
land a grantee takes under his grant. In such case the meander lines
cannot limit the grant in a patent. Id.
IL OBA2TTXB 07 PuBLio Lands Bokdebiko ON BivxB navigable in fact, bnt^
above the flow of the tide, takes the land absolutely to low-water mark».
and obtains the fee in the bed of the stream to the middle thereof, subject^
to the public easement of navigation. Id,
4. In Subvsts, Coubses, Distancbs, and QuANnrr must alwats Yibld to
a call for a natural object, such as a river, or to monuments and mvkr
erected and adopted by the original surveyor as indicating the lines run
by him. MarUn v. Carlin, 696.
A. ObIOINAL MONXTICENTS, WHEN AsOSRTAINED, ABB SaTISFACIOBT AND CON-
CLUSIVE EviDENOE of the lines originally run, which are the true boun-
daries of the tract surveyed, whether they correspond with the plat and
field-notes of the survey, or not. Id,
6. Monuments are Facts; while Field-notes and Plats indicating
courses, distances, and quantities are but descriptions which serve to
assist in ascertaining those -facts. Id,
7. Establishbd Monuments and Mabkbd Tbbbs not onlt Sxbvb to
Sbow with Cebtaintt the lines of their own tracts, but they are also
reaorted to, in connection with the field-notes and other evidenoe, to fix
the original location of a monument or line which has been lost or oblit-
erated by time, accident, or design. Id,
%, Established Monuments, and Lines Actually Ruv, which control in
all cases of disputed boundaries, oannot be overridden to reach a natural'
object. Id.
Index. 793
ii WuMam LmniofSoBTiroAV VKBxm wBxmWMLL-MmxKiAJomD abdJS&-
Tiw.ininn> MoHUiODiTBp they are to oontrol and govern a deMription d»>
liiMWitftd on a plat. liL
lOi QoAxrxBrSMijnos Lxn> Fuev.ailb otxb MxAirmnxD Loraa of 8nuuM or
Gasb of Mistake^ whim. — If the goTremment survey of a fractional lot
onntaina a mistake, to that either a qnarter-section line or the meandered
line of a stream, both of which are called for by the surey as oonstitat-
big the boondary lines between two fractions, most be i^andoned, th»
qnarter-section line shonld be adhered to as the more certain call. Id.
IL BivxEnoN Lnrs bktwun Two Fkbsons, Aqbibbi) opoh bt Thxm undsr
Hdtakx of Facts, will not estop one of them from claiming to the tni»
Une npon its discovery, provided the rights of innocent third parties bava
aot intervened. KiuwUtm v. SmUh, 152.
See Adyxbsb Po8ai8BnHi» 1.
BOUKTIEa
SeeTAZATioir.
CH06ES IN AOnOH.
See AsaioinDraTa, 1; SrATum^ &
COMMON OAKSIEB&
L OoHiKm Oabbimr mat DnmixsK and Bbskbiot hib OcnmoH-LAW lAABiXi*
1T7 by special oontraot^ and may by express stipulations also absolve
himself from all liability resulting from any and every degree of negli-
gence, however gross, if it fall short of misfeasance or fraud, provided
the terms and language of the contract are so clear and definite as t»
leave no doubt that such was the understanding and agreement of the
parties. Batiimon and Ohio R. S. v. Sathbone, 664.
t» Whxbb Bilub of Lading Con8titdtb Spboial Comtbaots, both parties are
bound thereby, and by sU of the stipulations therein contained. Id,
9L Whbbb Pabtt Dboolabbs m Aaammn against a common carrier or bailee
for hire without regard to a special contract contained in the bill of lad-
ing, the latter is not admissible in evidence, not being applicable to any
of the counts in the declaration. Id.
* 4. Whbn W0BD8 *'at thb Ownbb's Risk," contained in a bill of lading, taken
in connection with other stipulations contained therein, constitutes a spe-
cial contract between the owner and carrier to the effect that the latter
should be liable for such loss only as results from ordinary neglect, he is
only bound to exercise such care and diligence as prudent men usually
bestow on their concerns, and the jury should be so instructed; to charge
otherwise is error. Id,
A. GoHsiQNEB IS E^rriTLED TO Rbasomablb Opfobtunitt to Inspbct Goods
forwarded by a carrier, to be paid for on delivery, before he aooepte
them, and the carrier may offer him such opportunity without becoming
chargeable for the price. Lyons di Co, v. Hill ^ Co., 189.
$k Custom LminNO Liability of ComcoN Cabrieb oannot bb Shown.
Where a quantity of cotton was delivered to a steamboat company for
transportation, and a bill of lading given which only excepted them from
"dangers of the river," and the cotton, while being transported, was
forcibly taken by an armed body of men, the carrier, for the purpose of
relieving his liability, wiU not be allowed to introduce parol evidence of
a custom by which all carriers navigating the river were relieved from
L
794 Indsz.
liability for losses so occasioned wiihoat fault or negligence of the
Boon 4b Co, ▼. Steamboat Belfast, 761.
7.'OoMiroN Oabbixb Ui^dertakino to Fo&wabd Goods vmyovd Tkbmxnto of
BIS Own RoxrrB is bound to obey the instmctions of the shipper, and if
he disregard them, and the goods are lo8t> he is liable for their value;
snch disregard of instructions being at his own risk. Johnmm ▼. New
York Centrai Tramgp, Co., 416.
S. Ck>iof0N Cabbiee ov Passekqebs la Bouvd to Rxkkcihk Utmoct Huxav
Cabs and foresight in the carrying of passengers, and the law makes him
responsible in damages for the slightest neglect. Johnson t. Winona ete.
B. B. Co., 83.
it Oakbtetw 07 Passenoebs abb vot Irsubebs ov Safeit of thezb Pas-
8BNQEBS; their duty is measured by the dangers that attend railroad
carriage; and they must exhibit the utmost foresight as to poasiUa
dangers, and the utmost prudence in guarding against them. De^ r.
New York Central B, B. Co., 418.
10. To Maintain Action for Daxages AOAiNffr Railboab Company for In-
cubus to Passengeb, the plaintiff must prove affirmatively negligence
on the part of the defendants, their servants or agents, and freedom
from negligence on his own part, the former being the gist of the action,
and the latter equally important. Id.
11. In AcnoN against Railboad Ck)XPANT, where Plaintiff Claims to
Rboover Solely fob Ejeohon from Cab, and not on account of the man-
ner of it, and a legal justification for the ejection is shown, it is
immaterial whether unnecessary force was used by the conductor. John-
son V. Concord B. B. Corp., 200.
12. PuBCRASEB OF TioKET TO STATION ON LiNE OF Bailboad IS entitled, in
the absence of express stiptdations, to be carried to that station in a rea-
sonable time and manner, agreeably to the reasonable rules and regula-
tions of the company. Id., 199.
13. Railboad Companies may Make Reasonable Regulations aa to the
mode of performance of their duties as passenger carriers. Id.
14. Rule Establishxd by Railboad Company LnnnNo Time within ^Hiich
tickets over its road should be used, provided that joint tickets should
be good for such further time as might be necessary to enable the holders^
by the regular trains of the road, to reach the station to which sndi
tickets were sold, is not unreasonable. Id.
15. Evidence that in Various Instances Conductobs Allowed Tickets to
be Used contrary to the provisions of a reasonable rule established by a
raihx>ad company, and in violation of instructions, is not competent to
show a usage on the part of the company in conflict with the rule, if such
instances are not shown to have come to the knowledge of the governing
officers of the corporation. Id., 200.
16 . Passenger on Public Stage-coach may Rbooyeb against PBOnunoBE
OF Railroad Tbain for damages to him arising from a collision through
the negligence of the railroad company, though there was such n^ligenoa
by the driver of the stage-coach as would have defeated an action by its
owners. Brown v. New York Central B. B., 353.
17. Bjelation of Passenger on Stage-coach to Oabbieb n Samb aa that oC
passenger en train of railroad oars to the railroad oompany. JUL
COMPROMISE.
Sea AnoBNEY and Clisnt» 8.
Index. 795
CONFLICT OF LAWS.
Tmuxrt or BvsBT Trahsikb, Aubmaxion, OS DiBPOBinov of PnooorAL
PBorKBTT depeacb upon the law of the owner's donMioile. Peimr9m ▼•
Okemkal Batik 29S,
SeeSTAXUTBS^ 0.
CONSTITUnOKAL LAW.
1. Li CoMaTRvonoH ov Wbittbn CoaariTUTioira^ Cousn abm to vm Got-
KBNED by the purpose of the framera. Brodhead ▼. Jfiimnifoe, Yll.
S. Act ov 1855 fob CoMPBNSATiNa Paktibs whosb Pbopsbtt mat bi Di-
flTBOTXD B7 MoBS AMD RiOTB IS NOT UnoonbtitutiobaIi, Under seo-
tion 14, article 7> of the New York eonstitntion, becanse it was not passed
when three fifths of the members elected to each house were presenti
The article of the constitution relates to the state finA.n^%<Mi^ while the act
of 1855 does not impose a tax of any kind. Darlington v. Mayor etc q/
New York, 248.
9L loaisLATUBB HAS Plbmart Powkb in Bbspbot to All Subjbcis of Civil
GoYBBNMBifT, which it is not prohibited from exercising by the ooQBtitu-
tion of the United States and of the state. Id,
4. AOT SUBJBOnBO COUNTIBS AMD ClTIBS TO LlABn.TTT FOR DaICAGBS TO
Pbopbbtt bt Mobs and Riots within such counties and cities is within
the general scope of legislative authority, and is not obnoxious to the
oonstitntional provision that no one shidl be deprived of his property
without due process of law. Id.
A. Act SuBjBoriNO MunioipalCobfo&ations to Liabilit7 fob Dahaobs to
Pbopbbtt bt Mobs and Riots within Thbm is not Unoonstitv-
tional as taking private property for public use without compensation.
Id.
€. Pbopbbtt Ownxd bt Municipal Cobpobation is Pubuo Pbopbbtt,
and is under the control of the legislature. Id,
7. Pbopbbtt of Municipal Cobpobation is SuBJBor to bb Taxbn in Ezb-
CDTION, if payment of judgments against it is not otherwise provided fori
sltiiongh, it seems, property held by it for public use cannot be so taken.
Id,
S. Lbqlslatubb kat Chanob and Modift Rsmbdibs, forms of proceedings,
or the tribunal itaeU, if it does not directiy or indirectly destroy or abol-
ish all remedy whatever by which the performance of any class of valid,
legal contracts may be enforced. Per Poland, C. J. Riduirdaon v. Cooii^
622.
f. loaiBLATUBB KAT CONTBOL StATDTB OF LdOTATIONS, if it doOS UOt
thereby take away the remedy to enforce existing contracts. Per Po-
land, C. J. Id.
10. Lbqiblatubb has Powbb to Pass Spboial Aois fob Spbgial Pubposbb
without infringing upon the operation of other general laws; and may
except a particular class of cases from the provisions of a previously
stiisting general law, without repealing such law. Brodhead v. MUwank'
hee,m.
11. COUBTS MUST DbTBBMINB QuBSTIONS AS TO PoWBB OF LbOIBLATUBB
ONDBB OoNmruTiON when such questions are properly presented, but
cannot arrest the operation of a statute on the ground tiiat it is unwiss^
unjust^ or oppressive when no question of legislative newer is involved.
Id,
796 IKDEX.
12. In AsaxNOK ov Com ffnitrnoNAL Fbovibion to GkxHTBABT, legidatiire uy
«t its will inerease or diminiBh the compensaticm of pabUo offieen in v^
gard to fntnre services. People ▼. Dtiolin, 377.
18. LEoisLATintB MAT Imfobs UPON ExisxiHo Railboab OoBVORASioini Dorr
07 Fencing their roads, although the original charters be silent on the
subject of fencing. Winona etc R. R. Co, v, IFoliftm, 100.
li. MiNNBsoTA Act ov 1805, Chapter 10, is nr Contlict with Ssotion ov
Constitution which provides that no law shall embrace more than on*
sabjeet, which must be expressed in its title^ and is therefore void. /dL
IS. JODIOIABT WILL NOT InTEBFEBS WITH ElTHBR OT OlHEB Co-OSDINATB
DiPABTMENTS of the government in the legitimate ezerdse of their
Jnnsdiotion and powers, except to enforce mere ministerial a&ts required
by law to be performed by some officer thereof, and not then if the law
leaves it disoretionary with the offioer or depajrtment. Bb PwrU Mekob,
740.
Bee Ex Post Facto Law&
CONTmUANCB.
See AiTORNBT and GLmn; %
CONTBACTS.
1. Li Consfbuino Contract, Words abb not to bi Takbn nr Bboadi
Sbnsb if they are equally appropriate in a sense limited to the
and intent of the contract. Hoffman v. ^ina Fire Ins, Cb., S37.
& If Lanocaoe of PBOioaoR is Capable of Double Intbribbtation, it is
to be interpreted in the sense in which he had reason to suppose it was
understood by the promisee. Id.
8. That Construction of Words in Contract should bb Adopted Wmca
18 Most Beneficial to Pboiosee, if it is doubtful whether given words
are used in an enlarged or a restricted sense, and other things are equaL
Id.
4. CoNTRAora Providino for Disabilities and Forfbttubes abb to bb
Stbiotlt Constbued against those to be benefited thereby when the in*
tent is doubtfuL Id,
6. EvEBT Intendment is to bb Made against CoNSTBUonoN gt Ezbodted
Contbaot under which it would operate as a snare. Id,
0. Lapsb of Timb will Supply Want of DisriNorNESs and Dibbctnesb of
Pboof, and coiroborate defective evidence of the existence of a contract,
but wQl not create such evidence; but when the alleged vendee has been
a long time out of possession, the presumptions are the other way. WlUe§
V. Day, 562.
7. Contract Voluntarily Made with Offioeb in Seryicb of Confbdbbatb
States to supply his company with rifles held to be void, as against the
public policy of the government of the United States, and in violation of
its laws and constitution, as aiding and assisting the BebeUion, at the
time in active progress. Wood v. Stontf 601.
See Custoh; Plbadino and PRAoncE, 4» 5; Usaob.
COBPOBATIONa
!• OFnOBBS OF COBPOBATION OANNOT RBOOyBB ON QUANTUM MbBUXT f OT SOT-
yioes rendered to the corporation as such officers. Without an express
eontract for compensation, no recovery can be had for sobh senrioes.
KUpabrick v. Penroae Ferry Bridge Co.^ 487.
Index. 797
t» OoBFCMUXiOH MOST DwsLL Di Plaoi 07 ITB CBXATioir» and OBii have no
legal exiatenee beyond the bonnda of the aoivereig&ty whioh created it.
AUef^kn^ Comity r. Clepekmd etc R, R, Co., 579
8» OaspoBAxioR Chabrrbi> bt Two States bt Saxb Naxb and Smj^
clothed with the eame powera, and intended to accompliah the aame ob-
Jeota, fulfilling the aame dntiea in both atatee^ is a diatinct and aepante
body in each state. Id.
< LlOAL PSBBCnf FTION 18 THAT MxilBKBS 07 Ck>BP0BATI0ir ABB CiTIZBVB of
the atate that created it, and no averment or evidence to the contrary
ia admianble for the pnrpoee of withdrawing the anit from a coort of the
United States. JdU
ft. Suit bt Corfobation Grbatbd bt Oohoubbbnt Iooiblatioh of Two
States is Onb in which dtisena of each atate are joined aa plaintiflb,
and if the defendant is a dtiaen of either of those states^ the aoit cannot
be maintained in the federal conrts. Id,
tt. Bill in Equitt to Bnvorob Pbbvobmancb ov Pdblio Ddtt bt Ck>BPORA-
tion oannot bb Maimtainbd by a private peraon, in the absence of a
special right or authority; nor, in such a caae, haa the complainant a
right to a decree compenaating him for any damage suffered. BwA
JiiamUain Coal Co. v. Lehigh Coal dt yav. Co,, 534.
7. Bill in Equitt to Compbl Cobforation to Obsbbvb its Chartbb Obli-
gations CAN bb Maintaifbd, it seems, on behalf of the state, by the
attomey-generaL Id.
t. Assignment of Shabbs of Railboad Stock as Collatbbal Sboubitt for
pre-existing debt^ not contracted on the faith of the aecurity, conf era upon
the assignee no better title than his assignor had, and he takea anbject to
equitiea. dtp cfCleodand v. Bank of Ohio, 446.
9. Note Qivbn fob Pubpose of Inorbasino Capital Stook of Mxttual
Insurance Cokpant to the amount required by statute to be subscribed
prior to its organisation is payable absolutely; a private agreement that^
after passing the examination of the commissioners provided for by law
for the purpose of ascertaining the fact of the subscription of the proper
amount of capital, it ahould be given up, and a lesser one substituted, is
a fraud upon the law; and the maker remains liable though such note be
surrendered and destroyed. Tuekerman v. Brown, 386.
10. Interest of Stockholder in Stock of Corporation is Personal, and is
subject to the law of his domicile. McKeen v. County qf Northampton, 515.
11. Capital Stock of Manufacturing Corporation Located in Another
Stat^ owned by a citisen of Pennsylvania, is taxable in the latter state
lor state and county purposea. Id.
See Reoeivebs; Trusts, 5^ 0.
COSTS.
1. BiLi* OF Costs kat Pbopeblt Include Monet Paid for Copies of Dbbds
neceasary to be used in evidence on the trial in proving title or soma
other competent fact. Sla v. Knox, 179.
% Expenses of Makino Subvbts and Plans, Needed in Pbeparino Casi
FOR Trial, and even where the plans are uaed on the trial, are not al«
lowaUe in the biU of costs. Id.
CCV-TENANCr.
L Tenant in Possession of Entirb Premises, as Assionbb of undivided
two-thirds interest of term created by lease reserving rent» ia liable to
7M Index.
tiM ownen of tlie reftanka in fee for the entire rent Wm eo>teBHil oit
of pnenaerian it not liable. DtsMokuSOk r. MoKm^ 224^
% AflBiovn or Lsasa or Tkbm is hot Liabls iob Bnrr, o« Oxoohd ov
Pkivitx or Ebtatb oitlt, vnlees each timiflmfm ia in pneenwinii of ths
demised premiees; for there is no privity of eetete where the fciwigiiffn te
not in the eotnal possession; and whenever he parts with his interest^
togslher with the possession, his liability oeaaea. /dL '
8» BsMT KAT BB APFOBTioirxD whsn the demised premiaea are held \tf aeveial
amiignonn of the term in aeveral parte, for it is a oommon ehaige upon all j
the parts. Id. \
4 Rbvt iCAT BB Afportionbd whore the demised premises are held by ser*
oral amiignonn aa tenants in oommon, and who are in actual posseaoion /dL
A. Rbbt oahnot BB AFPOBTioirBD where one oo-tenant ia ont of poaseasion in
fact, and the other is in possession of the entire premiaea. The latter
most pay it. Id.
See SmppzNo, 16^ 17.
COVSNAKTS.
^!"*^»^— Fbaudulbmtlt Pbooubbd ibom OBUOAxnnr ov OoYBhjjrr la
HOT VoiDy bnt only voidaUe at the election of the oovenantee by aa
affirmative aot on his part» aa by bill ineqoity. WJlnafdo&i amd UmmmM
B. B.OkY. JHOwamhee ami Weatem R. IL Cfo., 74a
See AaeaoincBiiTB, 2; Dbxdo^ S, 9.
CUSTOMa
CdBTOM OB VBAOMf JSnwoT Of WuiCH IS TO CoBTBOL BuLS ov Law, ia
inadmisaible, aa ia one which tenda to enlaige or reetriot the ezpUcit lan^
goage of a oonteaot Boon diOo, v. Sieamboai Beffiui^ 761.
Bee OomioN Oabbibbs, 6.
CRIMIKAL LAW.
1. PaBTT IbSIDTBD lOR MVBDBB IS MOT EhTITLBD TO AOQUXTTAL On gTOOnd
of insanity, if at the time of the alleged offense he had aofficient oapacitj
to enable him to distingoish between right and wrong, onderstood th»
nature and oonaeqnenoea of hia act» and had mental power aofficient t»
apply that knowledge to his own case. Stale v. Shippeif, 70.
t» Dbsionbd EnxiNO or Ahothbr without Provocatioh, and not in andden
combat, is none the leas mnrder becanse the perpetrator of the crime ia
in a state of passion. Id.
IL TnisPiiss IS BOT Such Pbotogation as entitles one to nse a deadly weapon,
nor is it each as to rednoe a killing below mnrder. Id.
< Thbo wing or Stick or Club bt Dbcbasbd at defendant without its hitting
him, and before the fatal shot was fired, is not snch provocation aa will
rednoe a homicide from mnrder to manslanghter. Id.
ft. IhstrumbmtobWbafon WITH WmoHHoMiGmB was Oommrtbd most be
taken into consideration to determine on the soffidenqy of the provoca^
tion to rednoe the killing from murder to manslanghter. If itwaaeflected
with a deadly weapon, the provocation most be great to lower the grade
of crime from mnrder. If with an instroment not likely or intended to
produce death, a leas degree of provocation will be anffioient. Id»
C Whbbb Rbvbhgb is DisPBOFOBnoMATB to Ihjubt BsoxnTBD^ and ia oot-
rageous and barbaroos, the injoxy is no provooatioa to rednoe the erima
committed. Id.
Index. 799
7- SnJ^DDBim OAK bi Ri8QBTKD to in case of neoessity, and doee not aru»
until an attempt has been made to avoid such necessity. Id,
S. Bkluet ov Kbcbssitt to Act zv Sklv-dsfen ss will not wairant a ▼erdici
of acquittal on the charge of mnrder. Such belief would perhaps reduce
the crime to manslanghter. Id.
9l Sxlf-dxrksb ex Vi TsBKiia is DxnDrsrnE» and not an offensive, act, anc^
most not exceed the bounds of mere defense and prevention. To justify
it^ there must be at least an apparent necessity to ward o£^ by foroa»
some bodily harm. Id,
10. Pastt Who does not Betbbat or Attexft to Shuv a combat, bat
enters unnecessarily into it» does not act in self-defense. Id.
11. Tbbbats Made bt Pbisoner Few Minutes beioiui Comxibsiom or
Cbixb "that he would kill somebody before twenty-four hours," are*
admissible in evidence, to show malice prepense, to convict the prisoner
of murder in the first degree, although they were not expressly directed
to the deceased. JToptin* v. CcmmomoecLUh, 518.
12. Entbt in Ck>UBT Minutes or "Tbub Bill** is Suvvioisnt BeoobdoI
the finding of the grand jury. id.
13. MuRDSB IS Presumed tbom Delibrratb and intentional shooting of
deceased. Btate v. Shippey, 70.
li. State oulnnot Prove Devenbant's Guiltt Knowledge, in Proseou-
noNiOR Utferino and Passikq Forged Bank Bill, by the introduction
of testimony showing that defendant had passed other counterfeit bills
of the same denomination and on the same bank as the bill laid in th»
indictment, without producing such biUs in court if within the reach of
the prosecution, or in case they are in defendant's possession, without
giving him notice to produce them. 8taU v. Cok, 678.
lA. In Prosecution tor Passing Counterveit Bills, It is Unnecessart*
UNDER Wisconsin Statute, to Show Legal Ezistenoe ov Bank by
which the bill alleged to be counterfeit purports to have been issued, or ita
authority to issue such bills, but it is sufficient to show its actual exist*
ence by proving tha« it has a place of business, that it has bills issued
and in general circulation, etc. : See B. S. Wis., 1858, sec 6, o. 166. Id.
16. It IB not Forgery at Common Law, or under New Hampshire Stav-^
UTE, for one to make a false charge in his own book of accounts. Staiit
V. Tornig, 212.
17. Wrtting or Instrument Which mat be Subject of Forqert must gen-
erally be or purport to be the act of another, or it must be some writing
or instrument under which others have acquired some rights, or have ia
some way become liable, and where these rights or liabilities are sought
to be affected or changed by the alteration without their consent. Id.
1& Forged Writing or Instrument must, in Itself, be False, and not th»
true instrument which it purports to be, without regard to the truth or
falsehood of the statement which the writing contains. Id.
19. Jury have Right in All Criminal Cases to Find Special Verdict,.
by which the facts are put on the record and the law is submitted Ut
the judges. CcmmonweaUh v. Chmthams, 539.
20l Special Verdict of Jurt in Criminal Case is Sufficient if it finda
all the substantial requisites of the charge, without following the technical
language used in the indictment; and it is not necessary that, after stat*
ing the facts, they should draw any legal conclusions. Id.
SI. Bailee is One to Whom Possession of Personal Propertt is In-
trusted TOR Time, to be Returned in Specie, within the meaning oi
800 Iin>EZ.
•aotioBi 108 of the PemuylvBaia crimae eonaolidatianact of 1860^ pro?idiQg
tbat "if any person, being a bailee of any properly, aball fiwadalantlj
take or convert the same to hia own nae^" he ahall be gaSity of laioeny.
Id.
f2i DmNBABT nr BzxounoH is BaHiEib, Guilit ov Laboent under aectioo
108 of the Pennsylvania Crimea consolidation act of 1860^ providing that
"If any persoiiy being a bailee of any property, shall frandnlently take
or convert the same to his own nae^^he shall be gnilty of larceny, where
hia personal property was purchased at the sheriff's sale by the plaintiff
in execation, who permitted the defendant to retain and nse it natil
demanded, and the defendant, being so intmsted, appropriated it to hia
own nse. Id.
fS. Blma of Guiltt mat bs Withbrawh, ahd Nxw Trial Awa&dbd^ on
the affidavit of the defendant, with corroborating proo^ that such plsft
and the submission of his case were made through fear and official mia>
representations, and in ignorance of hia rights. Stocmg v. Stale, 093.
SA. QBJXonoir that Iin>icnfXNT was vot Signxd by the foreman of the
grand jury, if not taken by motion to set it aside^ or by demnrTer, is
waived, and when waived, a new trial cannot be granted on such ground.
8taU V. Shtppey, 70.
See Ex Poer Facto Laws; Pubaddiq avd FRAonaa, 9Qi
DAMAGES.
1. Iv Tboymk, Trmspabb, akd Rbplbviv, Berndabt kxkd hot DmT
Amoust ov Valui or allegation of damages, lliey must be proved^
though defendant puta in no answer. This was the practice before tiie
code, and is so now. Jenhht v. Steanha, 675.
IL HxAsuBS ov Daicages vos Foechblt Brxakiko nnro Plaiiitibi^b Stokj^
putting him in fear, and taking away his goods, is the value of the
goods, with legal interest thereon from the time of taking, and exem-
plary damagea for the breaking into his store, the threatening of hia
Ufe, and the injury to his business. Freidenh^ v. Edmundwm, 141.
S. YiKDiOTivx Damages mat nv Given to pumsh the defendant where
actual malice exists. In the absence of actual malice, the rule ia com-
pensatory damages, or such as indemnify the plaintiffs BameU v. Beti,
674.
4, ExiMTLABT Damages woitld Seem to Mean, in Ordinast and Pbopeb
Sense of the word, such damages as would be a good, round compenaa-
ticn, and an adequate recompense for the injury sustained, and such aa
might serve as a wholesome example to others in like caaea. Frfidtnkek
V. Edtnundatm, 141.
See Eminert Domain; Rahaoam; Replevin; SHSBivifl^ 4.
DBGErr.
t. One Who has been Damaged bt Actino upon False and F&audulbht
Representations made to him as agent of another, but not intended te
be acted on by him, has no action for the deceit against the party mnkirig
the repreaentations. Wells v. Cook, 436.
^ Kg AonoN Lies ior Damages Resulting to Plaintiw ibom AoiiNa o«
False and Fraudulent Representations made to anotiMr, and not in-
tended to be acted upon by the plaintiff Id.
Index. 801
bedioahok.
WsiRa OiiAimn of Tubuo Land Bbdioatis It to pablio use in a citj,
imdor a statate providing that the land so dedicated shall be held in the
oorporate name in troBt, to and for the naes and pnrpoees set forth and
espressed or intended, he does not thereby deprive himself or subsequent
purchasers of the title to the land, bat merely sach estate or interest
therein as the porpoees of the trust require; and the land cannot be taken
for any other use or subjected to any greater burden or servitude than
that expressed in the dedication without compensation being made to the
owner. If an additional burden is impoeed which works aspeoial injuxy,
be has the right to have it enjoined. Schmrmeier v. 8t, Paul tie. B.R.
DEEDS.
1. DiBD MOU THAN ThIBTT YbABS OlD, UNBLXmSHSD BT ALTlKaTI0H8»
proves itself, as the subscribing witnesses are presumed to be dead, and
this presumption, so far as the rule of evidence is concerned, is not affbcted
l^ proof that the witnesses are living. Its admissibility in evidence
does not depend upon a proper certificate of acknowledgment. WhiU v.
JTirfcAms, 766.
2, Whbrx Dxbd has been Shown to hays bisn Rboobdbd in Pbopxe
OmoE TwxNTT YxABS BBVORK, it will be presumed to have been prop-
erly proved or acknowledged, and a transcript of the record thereof will
be admissible in evidence. Id.
IL TiTLB Dbbds— Who Bntttlbd and Who Pbhiumbd to have Possbs-
8I0N ov. — In America^ each successive grantor of realty is presumed to
give to his grantee only his deed of conveyance, retaining the immediate
deed to Hm"olf to rely upon its covenants in case of failure of title. In
P.nglM»<l^ the title deeds go with the land to the purchaser. Id,
4. DbEDS abb to BB InTBBFBBTBD AoOORDINO to THBIB SUBJBOT-lCATrBB,
AND Such Constbuotion Givbn to Thbm as will carry out the inten-
tion of the parties, when it is legally possible to do so conststently with
the language of the instruments. SchmUm v. SchmU^ 681.
A. Whbbb Lanouaob or Deed ls Vague and General, or Contains Some
Latent Ambiguitt, Pabol Evidencb ib Admissible of any extrinsio
circumstances tending to show definitely what things were intended by
the parties; not that such evidence enlarges or diminishes the estate
granted or premises conveyed, but it identifies the subject-matter on
which the deed operates. Id.
$k Rule Excluding Parol Evidence to Oonteadict or Alter Written
Instrument does not prevent giving parol evidence of a consideration
not mentioned in a deed, if it be not directly inconsistent with that ex-
pressed. Bueklqf't Appeal, 46a
7. Parol Evidence is Admissible to Show that CkiNsiDERATioN ov Deed^
expressing a consideration of money and the payment of a judgment^
embraced also the payment of other encumbrances on the property, such
as mortgages and mechanics' liens. Id.
t, CONTRACr VOR CONVETANCE OV BXAL EsTATE BT DXED^ WITH " UsUAL
CkiVENANTS," entitles the grantee to covenants of seiBin, of right to con-
vey, against encumbrances, of quiet enjoyment, and of warranty. WU*
mm V. Wood, 231.
9. What are <*Usual Ck>vENANT8" in Debds in Given Looaltet may be
referred to a master to inquire. Id.
Am. Dia Vol. LXXXVm— 51
802 Index.
8ae OomrucT ov Lawb; Exxoutobs Ain> AmnmsTRATOBay 6; Hobsoao:
Taxation, 20, 25-31; Vxhdor and Vdivril
DEPOSinOKS.
BmoAor of I2itbbbooaiobix8 Fclxd n EzHAxmiD aftar a dapodtifln
taken thereon, and the party has no right to retake the depoeitioa witi>-
oat refiliag the original or additional interrogatories, and giving the qp»
posite party notice. /VMCer ▼. SmUh, 604.
DOMICILB.
See Oowmur of Lawb; Ck>BPoiLATioirfl^ 10; BstATia of Dnsmniw
EJECTMENT.
See Spicsfio Psriobmaiio% A,
I
ELEOnONa
L IV n FOR LiaiBLATURR TO PRKKSRZBR Tzia AND MAXmR OF OALLOra
AVD Holding Elrcthonb; and if the room at whioh aa eleotioa is oalled
is small, inconvenient, and inaccessible to laige nnmbers, as it was in
this case, the electors, or a majority of those present^ may adjourn to
some other place where these objections do not exists "*^^"g pnblio
annooncement thereof and oansing proper notice to be given to voters
who shall come afterwards. The electors have this ri^t as a power
incident to all corporations at common law, irrespective of statatcoy
grant, and is always possessed by the electors sssemhled on snch oooa*
sions unless expressly taken away by statnte. Brodhead t. MQmmJne^
711.
% Common Council of Citt having Oncx Lioallt CANYAaaxD BxnrRN»
OF Elbohon for Mayor have exhansted their power, and cannot sabee-
qnently, after a reorganization, recanvass the retoms, and reverse th»
former determination. Hadley v. Oity qfAUfanjf, 412.
8. Effbot of Bbturns of Elsotion for Mayor by Board Con8titctxb
BY Law to canvass them and determine the result is condusive as deter-
mined by snch board, and is not open for consideration in a collateral
proceeding in which the title of the mayor is in qnestion. Id.
EMINENT DOMAIN.
L GXNXRAL BeNXFITS ARISING FROM CONSTRUCTION OF RaHAOAD^ whioh ao-
cme to the country generally through which it pussns, are not to be-
taken into account in estimating the compensation for takmg a strip
through a farm, but only those benefits are to be considered which result
specially and directly to the farm itself. Wmona eic R. B, Co, r, Wal-
dron, 100.
8. Sfboial Benxftts to Tract of Land of Whioh Pabt n Taxbn fob
Railroad may be set o£F against the injury caused by taking such part.
Wilson, C. J., dissenting. Id,
t. Owner of Farm, [^trip of Which is Taken for Railroad, may, m a
proceeding to determine the compensation to be paid for the taking,
prove the market value of the strip taken, and also in "vHiat manner the
market value of the farm will be injured by the proposed railroad. Id,
A, Additional Cost to Owner of Land Taken for Railroad for Fbnginq^
along the line is a proper element of damage^ when the oompaay is-
Index. SOS
vnder no obligatton to fence its road; bat if the company is compelled
by statnte to coDstniot and fnamtain fences, each additional coat caano*
be considered aa aa element of damage. Id.
EQUITY.
COUSTB or EQXTITT will not LSfTXIf TO APPU0ATI0H8 TO OOBKIOT ICfEl
Ebbobs or Law unconnected with the sabstantial rights of the paHj*
Mdndoe ▼. ffaxeWm, 701.
See OoBFQRATiDNS, 6, 7; Cotbhastb; Judqmbhtb^ 1L
ESTATES OF DECEDENTS.
Soccnnoir to Pibsoral Estatb ov Dbobasbd Pbbson is Govbbvbd by
the law of the conntry of his domicile at the time of his death. This ia
so whether the sncceanon is claimed nnder the Uw providing for intea-
taey or for transmission by last will and testament. PeUrtm ▼. Okmkai
Bmik,2SS.
ESTOPPEL.
See Boinn)ABixa» 11; HirsBAJErD aicd Win, 6; Shebihb^ 7.
EVIDENCE.
1. Pabol Evidbnob or Titlb to Land ia not Bbst Evidbngb, and is in-
competent where paper title exists. Smith v. SfnUhf 707.
fL Tbbtim ONT or MxDioAL Mbn as to Pbbmanbnct or Pebsonal Injubt is
NOT iNOOMPBTENTin an action for damages for negligently causing such
injury. Buel v. New York CtntnU R, lU Co,, 271.
9L Tbstimont in Relation to Statements and Complaints Made bt
PLAiNTmr as to suffering from headache and defective sight after receiv
ing an injury through defendant's negligence is admissible, though such
statements and complaints were made after action brought; and tbi
question as to whether the injury to plaintiff's sight is permanent or not
may be submitted to the jury. Broton v. New York Central B. B*, 353.
4. BVEBT COUBT HAVING ObIOINAL JUBIBDIOnON IS AtTTHOBIZED TO BeJBOV
Evidence on Immatebial Issttes, though objected to by neither party*
I TurmpQctt Boad Co. v. Loomia, 311.
A. Evidence or OmciAL Chabacteb as DEPimr Mabhhal is iNsumciBNTy
In an action for the taking and conversion of goods, where defendant
justifies as deputy marshal, under process, without some further evidence
than the fact that he had served and returned papers in a federal court
as deputy marshal, and has been recognized by that court as such. Ward
V. Henry, 672.
C Evidence or Pabticulab Instances or Vicious Conduct is admissible
to prove the bad habits of a horse at the time of an accident. WhiUief
V. Town qf FrankUn, 185.
7. Lbttebs Wbitten bt Parties to the action, and relating to the res
QcaUE, are admissible in evidence. Tofpley v. Tapley, 76.
See Attobnet and Client, 2; Common Cabrisbs, 15; Contraois, 6;
Deeds; Insubancb, 1, 2; Notice, 2; Pleading and Pbachcb; Wit-
EXECUTORS AND ADMINISTRATORS.
1. All Funds or Estate in Hands or Executob abb Trust Funds, and if
loaned by him to others with a knowledge of the facts, are trust funds
804 Index.
in the hands of the borrowersy who mnst repfty them to the trustee^
whether they were loaned properly or not AbboO^a Eair ▼. J&a«8, 5ia
-& WbVBS ExBCOTRIX DkPOSITB MoNST, VOR PuBPOeS 07 PATUrO HXB TB8-
tator's Debts, with an agent, who enters npon the dntiee of the agency;
and becomes her sabstitnte in the general administration of the estate^ a
••pecial action on the case will not lie against him for an alleged unex-
pended balance of money intmsted to him by her. Reemd^9 Ba^r ▼.
SeeakU, 603.
-IL FOBRIQN EZEOUTOR OR AdMINIBTRATOR CAKNOT SuE IN HIS REFRnODITA-
TIVB Character in the courts of New York. And one appointed nnder
the laws of a sister state is foreign within the sense of this mle. Bat
^here he is the real owner of the chose in action sned npon, he can sue
> in his own name in New York. Petenen ▼. Chemkal Banit 298.
4i Patments Voluntarilt Made bt Debtors of Deceased to Foxbiqh
Administrator are held effectual in the courts of New York, on prin-
ciples of national comity. Id.
IL Recitals or Administrator's Deed. — Where the statute prondea that
where an administrator has sold realty he must make a full report of his
proceedings to the court for its approyal; that its approval is necessary
to the validity of the sale; and that if the sale is approved the adminia*
trator shall make a deed to the purchaser, which must recite the order of
sale, the court by which it was made, and the consideration, — a deed
oontaining such recitals is valid prima /aeSe, and npon him who denies
its validity is thrown the ontu of showing that the sale had never been
approved by the court. KnowUon v. Smith, 152.
C Title Acquired through Foreign Administration is Univeesallt
Respected bt Comitt of Nations. Petersen v. Chemical Bank, 298.
7. In Suit bt Assignee of Foreign Executor upon Chose in Action, It n
No Objection that the assignment was made to avoid the difficulty
arising from the incapacity of such executor to sue. I<L
8L Reasons Stated for Disabilitt of Foreign Executor or Administra-
tor TO Sue. Id,
9l Title of Exxcxttor or Administrator to Assets of Deceased Existino
in Another Country, though conferred by the law of the domicile of
the deceased, is recognized everywhere. Id,
10. Executor of Testator, having been Clothed with Commission of
Probate Court, is Vested with Title to all the movable property
and rights of action which the deceased possessed at the instant of his
death. Id.
11. Tiilb of Tesfator's Executor to Personal Property is Fiduciary,
AND not Beneficial; yet it is perfect against every person, except the
creditors and legatees of the deceased. Id,
12. Administrator with Will Annexed has Same Rights of Property
as the executor named in the will would have if he had qualified. Id,
IS. Executor's Title to his Intestate's Movables and Rights in Action
Carries Jus Disfonendi with It, and he may so sell and convey a
chose in action of his intestate as to vest in the purchaser all the legal aa
well as the equitable rights of the original creditor. Id,
14. Executor or Administrator, having Absolute Power of Disposal
OVER Whole Personal Effects of his testator or intestate^ they can-
not be followed by creditors, much less by l^gatee% either general ee
speoifica into the hands of the alienee. Id,
Index. 805
IS. AflSIONEX OT FOBEION EXBOUTOB MAT MADrTABf Aon02f IN GoiTRTS OF
Nxw York upon a chose in action traaaferred to such assignee by sack
foreign execntor. Id.
Id. DiSABILITT OV FORXION EXICUTOR TO SUX IN COUBTS OT NsW YORV
does not attach to the sabjeot of the action, bat to the person of the
plaintiff. Id.
17. Grant ov Lsttxbs of Administration by the probate court of t)io
coonty where the deceased did not reside is voidable only by direct pro-
ceeding for that purpose. A subsequent grant of letters by the proper
oourt is absolutely void until the former letters have been revoked, and
the administrator appointed thereby has no such interest in the estate as
will entitle him to apply for such revocation. CoUari v. Alien, 7G7.
See JuDOHXNTS, 3» i.
EXECUTIONS.
1. KuuuTiON Which lasuxs upon Judomvnt recovered against a man ia
his lifetime against his executor, which bears testa after his death, is
irregular and void, whether the judgment was against him individually
or against himself and others jointly. In the latter case, if the deatii
had been suggested of record, the execution could issue against the sur-
viving defendants. Blanks v. Hector, 780.
& BXBCUTION AB ISSUXD MUST BB WARRANTED BT JUDOMBNT. Id.
Z. EzBOunoN MAT BB Ambndbd IN Mattbbs OF FoBM and as to clerical
errors and omissions, but it cannot be amended as to matters of sub-
stance. Id,
4. PoesESSioN OF Land in Execution Defendant at Time of Judgment
and Salb may be shown by proof, where his answer does not admit the
fact. Bunker v. Band, 684.
5. Execution Defendant's Possession of Land Sold at Time when Judg-
ment WAS Rendered, as well as at the time of sale, is sufficient prima
fade evidence of title to authorize the creditor to sell on execution. Id.
C Whebe Defendant in Judgment is in Possession at Time of Lett and
Sale, he can make no defense in ejectment against the purchaser at the
sheriff's sale; but such purchuer acquires a right at least to the posses-
sion of the debtor. Id,
7* Case, and not Trespass, is Propeb Remedt for the malicious abuse of
legal process in issuing an execution, if the judgment and execution were
not void. Bamett v. Beed, 574.
S. Execution Sale of Land is not Void because the sheriff neglected to
comply with the law requiring the land to be sold in separate parcels,
but only voidable at the instance of the party aggrieved. Bunker v.
i?afuf, 684.
9l If Pbopertt is Capablb of being Sold in Lots ob Parcels, and the
judgment debtor has been prejudiced by the departure of the sheriff from
the requirements of the statute, his remedy is to apply within a reason-
able time to have the sale set aside on that ground. Id*
10. Shebiff's Cebtifioatb of Sale of Land on Execution will not be
Wholly Annulled, and the issuance of any deed thereon restrained, at
the suit of the judgment debtor, on the ground that a part of the prem*
ises are adjudged to have been exempt as homestead. The purchaser
may, if he chooses, have a deed for the remainder. BenneU v. CkUd,
092.
806 Index.
II. Shxbot mat Maintaik AonoH m ms Owh Namb to Riooyee Amouvt
Bid by purchaser of real estate at an execatlon aale made by him. Arm^
throng r. Vronum, 81.
12. CDtTIFIGATB PrXSCBIBSD BT StATDTB 18 F&OFKR EVIDXNGB OT SaLB OV
Rbal Estatx on BxBCOnoN, and no other note or memorandiim ia ra-
qnired. Id,
IS. Paktt is Liable in Action iob Malicious Abuse ov Legal Pbogbsb
who iasaes execution on a judgment for a debt which had bean paid be-
fore its entry, knowing it had been paid, and whether he caused the
judgment to be entered or not. BameU ▼. Reed, 674.
li. Ck»MFLAiNT BT Waltsb D. McIndoe TO Resi'rain Lbvt ot Ezbcotiow
UPON his Estate, issued upon a judgment by confession against McLi-
doe and Shuter, partners, eta, on the ground that no judgment in any
court was ever entered up against Walter D. McIndoe and Gharlea
Shuter, must show that the plaintiff would suffer injustice from the
levy of the execution, or he will not be entiUed to equitable reUef. M>
Indoe ▼. HokOUm, 701.
See Replevin, 13.
EXEMPTIONS.
1. Head or Fabolt onlt is Entitled to the benefit of the exenqption laws.
Denny V. fTAtte, 596.
% Pbopebtt Exempted to Heads op Families cannot be Taken byattaeh-
ment or other judicial process if the father absconds; if he dies, the pro-
visions of the law extend to the mother and children; if the mother dies,
such property is protected in the hands of the personal representatives^
for the use of the children. Id.
8» Head or Family Holds Exempt Pbopebtt in hib Possession iob Use
and benefit of the family; and while he may sell or exchange such prop-
erty for the benefit of the family, it cannot be levied on and sold on ex-
ecution by his consent. Id.
i. Agbeement BT Labobeb to Waive Pbovibo or Statute Exemptdto
Wages from attachment, embodied in a note signed by him, ia void.
FirmgUme v. Mack, 507.
i. Debto&'s Bioht undeb Exemption Law to Rveain Pbopebtt Sebbd n
Barbed by the fraudulent concealment of other property liable to exeoii*
tion, made with the intent to hinder and delay tiie creditor by prevent-
ing a sale of the property levied on. Emtrmm v. Sniitht 660.
0. Shebiit mat, at his Own Risk, Resist Claim or Debtob, if he has
reason to believe he is not entitied to exemption of the property aebed.
Id.
EX POST FACTO LAWa
Sx Post Facto Law. — The repeal of a statute prohibiting a conviction on
the uncorroborated testimony of an accomplice does not affect proeeca-
tions under indictments pending prior to such repeaL To give ^i* efibot
to the repealing statute would be to make it ex pott facto within the con-
stitution. Rairt V. StaU, 752.
FACTORS.
l. CONBIONXENT TO OnE TO WhOM CoNSIONOB OwES BaLANOE OP AOXfUMf
18 GovEBNED by much the same principle as where advances have besB
made or biUs accepted upon the shipment Where it appears thai tha
Irdkz. 807
fhipmont WM made to carer a general balaaoe of aoooant» and there ia
nothing in the caae inoonsietent with the hypotheeie^ a deliTery to a car-
rier wiU be considered ae a delivery to the consignee. VaOe ▼. Cem*»
AdnCr, 161.
ti CdHsiOMOR AH D CoNsioNxa — In Whom Bjobt ot Pbopebtt. — Plaintiff a
merchant in St. Ixmia, and another merchant in New Orleans were trans-
acting business together as factors, and making reciprocal shipments,
the proceeds of which were to be carried to general accoont. This ar-
rangement was to last indefinitely, and plaintiff was to make advances
within the limit of a general letter of credit, authorizing the consignor
to draw on the consignee for three fourths of the value of the shipment
made. In the course of business, ten thousand dollars was due plaintiff
when the other merchant consigned him goods delivered on board a boat
bound for St. Louis, and sent plaintiff a bill of lading for the same, in
which he was named as consignee. At the same time, the consignor drew
en plaintiff against this shipment, and transferred the bill to a banker,
who advanced him part of the money on it. Two days after plaintiff
' received the bill of lading, a creditor of the consignor attached the goods
4n tranaUu. Plaintiff then commenced this suit, and replevied the goods
in the hands of the sheriff and after suit begun on the bill of exchange,
^d it. Held, that the right to the goods was in plaintiff^ that their
delivery to the carrier might be considered as a delivery to him, that
they might be considered as paid for in advance, and that the right to
stoppage tn transUu did not exist. Id.
St AxxmsTAHcm of Bill of Exohangx Dbawn upon Consionkb xtpon Faith
OF Ck>MSiONMXMT gives the consignee such a property in the goods, or
such a lien ifpon them, as no subsequent act of the consignor can divest.
Sooh an aooeptanoe is held to be an advance upon the partioolar ship-
aunt, id.
See AoENor, 1.
FENCES.
See CtojiOTATUTioNAL Law, 13, 14.
FIXTURES.
'' tecruun— Lavdlobd and Tenant— Vxndob and Vkndke.— Machinery
does not pass with the freehold even between vendor and vendee, while
as between landlord and tenant, the tenant may remove any improve-
ment he makes at any time before he surrenders up the premises, pro-
vided it can be removed without injury to the freehold. Looey v, CHSwney,
145.
FORCIBLE ENTRY AND DETAINER.
Wabsavt Desgbibbs Tbespass Mkrely, and not Foboiblb Entbt OB
FoBomuc DxTAiNEB, where it is for " breaking and opening a certain
■ohool-honse with violence, and taking possession of the same oontrazy te
JaWy" and is therefore void. Kramer v. LcU, 566.
FORFEITUREa
See CoNTBACis, 4.
FORGERY.
See Cbiminal Law, 14, 18l
806 Indkx.
FRAUD.
1. Fraud Which n Indxpevdirt ot TBAirsAcnoM nr Whiob Lbtt wa»
Madx 18 No Bab, bnt ia a positive bar when it esdata in the yecy tmis-
aotion, and is not to be need merely in mitigation of damaget. Anirmm
y. Smith, 666.
i. Fbaud 18 to bb Pbovxd, and not Infbbbxd^ but it may be proved by a
train of connected dxeamstanoea leading to the main Teaalt. Sooth ▼.
Bmee, 372.
See A88IONMXNT8, 2; Dbout; ExEMPnoNS, 0*
FRAUDULENT ASSIGNMBNTS.
See iNsirBAHG^ la
FRAUDULENT CONVEYANCES.
L Obbdiiob at Labob or bbiobb Judombrt 18 NOT Entitlbd to the inter*
ference of the coort by injunction, to restrain his debtor from disposing
of his property in fraud of the creditor. And a bill filed by a creditor of
a firm, to restrain an ezecation creditor of an individnal partner from
enforcing his lien upon the partnership property, forms no exception to
the general mle. MUtnight v. Smith, 233.
iL DiBBcr CoNVBTANCB FROM HusBAND TO WzvB of all, oT nsaily all, of hia
real estate will be upheld when it appears to have been a fair transactioo,
amounting to no more than a reasonable provision for the wife's mainte-
nance and support, and not prejudicial to creditors. WUder r. Brooki,
49.
%, RiooRD OB CoirvBYANCB TROM HusBAND TO WiTB stands Upon the sama
footing as any other conveyance, so far as the record is made notloe. isL
See Insubancb, 10.
GIFTS.
See Infancy, 9; 4.
GROWING TREES.
L Derrdant is Liablb bithbr in TRB8PAS8 OR IN Trotbr for pickings
oarrying away, and converting to his own use the fruit growing on the
branches of a tree overhanging his land, when such tree is growing oil
plainti£f *s land six feet from the division line between the parties, and
its roots have extended into and its branches overhang defendant's land.
Such tree and its fruit are the sole property of plainti£ Skinner v. Wilder,
646.
ti Trxb Standing upon Division Linb between adjoining proprietors, so-
that the line passes through the trunk above the surface of the soil, is tho^
property of both proprietors as tenants in common; but this principle-
does not apply to a tree standing exclusively on the land of one of the
parties, its roots extending into the land of both. Such tree belonga
solely to the party out of whose land it grows. /cL
Iw bBB AND mFBODXTOB are the sole property of him on whose land it is situ-
ated, and its location and property should be determined by the position
of the tnink or body thereof above the soil, rather than by the roota-
wttbm or branohes above it. ItL
. Index. 80^
GUARDIAN AND WABB.
1. Vaudstt ov Pbogebdinos uiTDER Chaftxbs 64 AXD 65, RiYisn) Stat*
VTEB OT WiBOONSiN, 1849. — Chapter 64 of said laws, providing for the 8al»
of a ward's real estate for his maintenanoe or ednoation, sad chapter 65>
thereof providing for the sale of the same property for tl^ payment of
his debts, had but slight differences; and proceedings had entirely under
one statute or the other had to conform, probably, to the provisiona
voder which they were taken; but where they were had partly under
both statates, as where a guardian, in 1850, made a sale of i^e real prop-
erty of his ward, partly for the future maintenance and education of the
ward, and partly to pay debts and charges against the estate, such pro*
oeedings were held to be valid where they conformed to chapter 65, and
not to chapter 64. And such slight differences still exist under tho^
present revision: R. S. 1858, c. 93, 94. Emery v. Vromany 726.
IL FoBiiAL Afpboval ot Guabdian's Bond is Mere Fobmalitt, and Wajtt
OF It will not Inyalidats his Salb of the ward's land, in a collateral
action, attacking it on such ground, where the guardian has accounted
satisfactorily for the prooeeds of the sale, and the purchase-money ha»
gone to the benefit of the ward. Id,
8L DxncT IN Gvabdian's Salb of his Wabd's Lanbs, in failing to sell th*
lands in the order of the license, is cured by the confirmation of the sale.
Id.
4. Obdbb of Ck)UBT DiBBOTiNo Salb of Wabd's Lands to Raisb SpBCOFiBfr
Sum must bb Construbd to mean such sum in addition to the expense*
of the sale. Id,
5. Salb of Morb Lands of Ward than is Nbcessaby to Raise RBQxaBBi>
Sum does not affect the validity of sales made before that sum is raised.
6. Appointment of Guardian by District Court of Tebritort of Wis-
OONSIN, on an appeal from the appointment of another person, must b»
regarded as valid under Revised Territorial Statutes 1839, section 46».
page 319, and the constant practice of the territorial courts. Id,
7. Guardian's Bond, under Revised Territorial Statutes of Wisconsin,
1839, WAS Properly Given to '*the territory of Wisconsin." Id.
6. Oath Taken by Guabdian, before Making Sale of his Ward's Real.
Estate, that he " will in all respects conduct the same according to law,,
and for the benefit and best interest of the wards," is a substantial com-
pliance with the requirement of a statute requiring him to take an oath,,
in substance, that he ''will exert his best endeavors to diBpose of th»
same in such manner as will be most for the advantage of all person*
interested." Montour v. Purdy, 88.
9. Pbobatb Court of Competent Jurisdiction signifies the probate oour^
whose jurisdiction it is proper to invoke in the particular case in hand*,
within the meaning of the statute providing that a guardian's sale shall
not be avoided on account of any irregularity in the proceedings, provided
it appears that the guardian was licensed to make the sale by a probate-
court of competent jurisdiction. Id,
IOl Lien Given by Minnesota Statute to Pubohaseb at Guardian's Salb
Hbld Void is no defense to an action of ejectment brought by the ward*
Id.
IL Bboulabity ov Pbooeedinos of Pbobatb Court in Relation to Guab-
dian's Salb of real estate may, in an addon in the nature of ejectment
brought by the ward or his representatives against the purchaser or hi»
SIO Indbz.
lepresantatiras, be ooIUtenlly qnestiooad for taj of fho bngaUtdm
qpMiAed in tho gfeatnto. Id,
Soe SUKU'XUBIFy 1.
HIGHWAYa
1* Vmbm Miaoo«i>uor of IvDZViDirALB upon Highwat, ifeMlf In a raoooBibjjr
Mle Mid fit oonditum, or tfaeir rightfnl use of it^ doei not amoont to
an "obstraction " for which a city is liable nnder the New Hampdiira
■tatate; and the liability of the city is not eolaxged by the fact that H
had notice of sach nee or mieoondnct. Bajf ▼. Cify iif Mtmekuter, 192»
% At iNTSBsicnoN ov Common Highway and Bailboad, thsbs abb Ooh-
OUBSXNT Rights, and neither a traveler on the highway nor the nulroad
company has an ezdnsive ri^^t of passage. North Ptim. R, B, Ox ▼.
iJeiimaii, 482.
HOMESTEADa
Widow does not Loss hie Bight ot Hombibad in Ebxats ov Fnnr
Husband by a second nuuriage, whether 4he hamestaad was ■ssigned to
her before sach marriage or not; and a bill in equity is a proper proceed-
ing for the recovery and assignment of snoh homestead, and the minor
bhUdren are proper, if not necessary, parties to the bilL Mik» ▼• MBim^
208.
HUSBAND Am) WIFE.
1. Lands Gbanted ob Ck>NyBTBD to Husband and Wdb abb Hbld bt
Them as Tenants bt Entireties as at Common Law: B. & Wis.
1858, c 83, sec 45; and section 3, chapter 05» Id., does not apply to
estates of this kind. Bennett ▼. OWdt 692.
Si Husband has Entibb Ck>NTBOL oyeb Lands Qranted ob Oonvstbd to
HiMHKT.T AND Wov during his own Uf e^ and may convey or morigago
them for that period. Id.
3b Husband cannot Aubnatb Lands Qbantkd or Oonyetxd to Htmewj
AND Wm, or any part of them, so as to ghre title after his dsaiii as
against the wife surviving him. Id,
4. Husband's Interest, or at Least his Life Estate, in Lands Grantsd
OR Conveted to HnfSET^F AND WoE, ezoept such part as may be ez«
empt as a homestead, is subject to sale on execution for his debt» and
the purchaser will acquire a right to the use of such interest during tlia
life of the husband. Id*
5, Estoppel of Husband to Dent Wiib's Authorttt to Sell her Prot-
BBTT. — By law of New Hampshire, if the wife upon marriage remains
in possession and control of her personal property, without anything
done by the husband to reduce it to his possession, she may sell it, tak-
ing a note therefor pajrable to herself or order, and in an action on tho
note by the husoand, he is estopped to deny fiiat the wife had au-
thority to sell the property and tdce the note. In such case, the wife
has also implied authority to indorse the note, and the indorsement will
be good until the authority implied in the transaction is revoked. Qeorgt
V. CutUng, 195.
€ BiTLB THAT AonON MAT BE MAINTAINED FOR FRAUD OR TORT OF MAR-
RIED Woman against her and her husband applies only to torts simpfietter,
or torts pure and simple, and not to torts or frand the basis of which is
the wife's contract. Keen v. ffcutman, 472.
Index. 811
7. AonoH Don » or Lib AOAnrsr Husbavd awd Wm voa hxb Falsi ahb
Fraudulent Rkpkissntations to plaintiff that she was a ftme mile,
thereby indnoing him to saxreDder to her promiasory notes of a third
person in exchange for a bond and mortgage ezeonted by her. Id,
Sm FtLAZDuiam Coisymiascea, 2, 3; Hoicbtxadb; Mabbiaox amd DnroBOB)
Mab&ibd WoifXN.
INFANCY.
t. IiTFAKor n Good Plea or Bab to Action on the ease against an InfMit
for deceit in the sale of a horse, no matter what false representations
he may have made at the time of the sale as to the soundness of the hone.
€fil»on T. Spear, 659.
S. Intamt 18 Jaable in Action bz Delicto for an actual and wiUfol fraud
only in cases in which the form of action does not suppose that a ccn-
t«*%ct has existed; and where the ffravamen of the fraud consists in a
transaction which really originated in contract, the plea of infancy is a
good defense. I<L
S. Absolute Giit ob Abtigles of Pbbsonal Pbofxbtt Made bt Intant
CAN be Revoked or avoided by him or by his administrator. Permmr.
Chaae, 630.
4. Ekanopation OB Intant bt his Father dobs not Bnlarob ob Amor
his Capaoitt to contract or dispose of his property by gift. Id.
INJUNCTIONS.
See Fbaudulbnt Convbtangbs, 1.
INNKEEPERS.
f, ImxBEPEE n Insubbe or Goods Committed to his Custody bt Gubbt»
unless the loss be due to culpable negligence or fraud of the guest, or to
the act of God or of the public enemy. HuUU v. Sw^ft, 405.
% Innkeefeb is Liable bob Loss ob Goods of Guest which are destroyed
by fire, the origin of which is unknown, the guest being free from negli-
gence. Id»
%, Innkeefeb is Responsible as Insubeb only bob Such Pbofbbtt as he
receives from one between whom and himself there exists the relation
of innkeeper and guest. IngaUfbu v. Wood, 409.
4. Innkeefeb is not Resfonsiblb except as Ordinabt Bailee bob Hibb
for the safe-keeping of a horse left in his stable lost the night by one
who is neither a lodger nor a guest, the stable having been consumed by
fire without negligence on his part.. Id,
INSANITY.
BusrioiON OB Stranoebs, Apfabent Melancholy, and peculiarities of de-
portment generally are not proof of insanity. Stale v. Skippey, 70.
INSURANCR
1. Policy of Insubance cannot be Rebobmed by Pabol Bvidbncib aw
Mistake, it seems, to the extent of altering ^ warranty. Cooper ▼.
Farmere* Mutual Fire Ins. Co., 544.
t. Policy of Insubance cannot be Reformed fob Mistake of Inbubbd
Alone; and evidence that the agent of the company, who filled out th«
812 Index.
appUcation, the representations of which were made a wamaty,
also mistaken, does not show a mntoal mistake for whioih the polioj will
be reformed. Id.
8L IVSUBXBS ABB HOT LlABUB TOB DaMAOB RXSULTIHa ''ON AOOOUBT OF*
BirBffTiKQ OT BoiUEBS, whoTO by a policy of insurance upon the body,
tackle, apparel, and other fomitore of a propeller, the insurers are not
to be liable "for" the bursting of boilers. Strong v. Sun Mutual fntur-'
aiuoe Co., 242.
4. DouBLB Insubabob Takbs Placsb when Absubbd Makbb Two ob Mobs
iBmrBABCBS on the same subject^ the same risk, and the same interest^
m ease ot such insurance, all the policies are considered as one, the in*
■nrers are liable pro rata, and are entitled to contribution to equalise
payments made on account of losses. Stoat r. Royai Ina. Ch., 477.
A. Whbbb Onb Pouor of Insitbanob Covbbs BuiLDnro oxlt, and a subaa*
quent policy in another company covers the buildings machinery, shaft*
ing, belting, tools, lathes, planes, drills, and stock finished and unfinished,
it is not a case of double insurance, and does not come within the mean-
faig of a clause in the former policy prohibiting double insurances without
notice. Id.
Ci Enaar ot Usual Pboviso agaibst Salbs zn Poxjoibs ob Insubavob that
the policy shall be null and void "if the said property shall be uAd and
oonyey ed " is not to forbid sales in the regular course of business, or con*
Tcyances made by the owners, as between themselves, as where the in-
terest insured is that of a merchandise partnership^ but only sales of
proprietary interests by the parties insured to third persous. ^e object
of such a clause is to protect the company from* a continuing obUgatioo
to the assured, if the title and beneficial interest should pass to others,
whom they m^t not be equally willing to trust. Bqfman v. ^tua Fire
Ins. Co., 337.
7. IvsuBANOB ON Stook OB Fluotuatzno Gooob TO Cebtaib Amoubt ooven
goods of the same character and description successively in store. Id,
8. CoBDinoBs Ain> Pbovisos abb to bb Ck)NsrBUBi> Stbiotlt aoaxbst Ub-
DBBWRiTBBS, as they tend to narrow the range and liniit the force of the
principal obligation. Id.
9. It Insubbbs, aiter Losh, Elbct to Rebuild Premisbb, under a provision
in the policy allowing them to do so in lieu of paying money damages,
the contract of insurance is converted into a building contract^ and the
amount insured ceases to be a rule of damages iu case of a breach; if the
insurer only partially performs his contract to rebuild, the measure ot
damages is the amount which it will take to complete the building, so as t»
make it substantially like the one destroyed. And where, in such a case,,
two separate insurance companies elect to rebuild, in case of a breach,
the owner may recover his fuU damages against either of them, leaving
one to seek contribution from the other in a separate action. MmrtU v.
Irvmg Fire In$. Co., 397.
10. AjsaiaNiOENT of Policies of Life Ibbubanob bt Ihsolvbmt Dbbiob, in
trust tost the benefit of his wife, is fraudulent and void as against hia
mditors. Appeal <if Eaioa*9 me^ra, 525.
See Shippino, S-15.
JUDGMENTS.
L JUDOMBBT Df FaVOB OV "C, G., & Co." GABBOT BB COLLATIBALLT Im-
FBAOHBD OB GbOUBD THAT Ko SUOH PaBTT B KbOWB to the Uw*
Index. 818
Snch objection should be made in the trial ooort^ and before the rendi-
tion of judgment therein. BenneU t. ChUd, 692.
& Pabtees to AcnoN wxthin Mkanino ot Rnui making prior judgments
ooncluaire on such are not those only who appear as parties on the rec-
ord, but includes all who have a direct interest in the subject-matter of
the suit or a right to make a defense or control the proceedings. State v.
Casiey 148.
3b FORMBK JUDOMEMT DT FaVOB OF AdIONISTRATOB BaB8 AoHON AQAINST
HIS SuRXTiss upon the same subject-matter, as they are in privity witk
him. IcL
4. RxooRD or Onb Statb Coubt ADMimNG Will to Pbobatb, and appoint-
ing an administrator upon the default of the executors named in it to
appear and qualify, is, under the constitution and laws of the United
States, entitled to full faith and credit in the courts of sister statea.
Peienen ▼. Chemieal Bank, 298.
Ci Or Contxssion ot Jxtdoment, Atfidaytt to AoooKPAirniro Statbmbnt
OF Facts, to the effect that the defendant " beUeves the above statement is
true,'* is insufficient; he must swear positively to the truth of the facts,
so far as they were within his knowledge. But if the error occurred
from the inadvertence of the attorney employed to enter up the judg-
ment, the court may permit the verification to be amended; and an error
in the statement itself is likewise amendable for a simihv reason. /»•
gram v. BohbiM, 393.
Ci JXTDOMBHT RENDERED IN NbW TOBK UKDEB JoINT-DEBTOB AcT OF ThAT
State will have the same effect in another state, by virtue of the consti-
tution of the United States and the act of Congress of 1790, as by law
and usage it has in New York; and a defendant who was served with
process, and appeared in the original action, cannot go behind the judg-
ment and examine into the original cause of action in an action on the
judgment in another state, though as against the joint debtors not served
or appearing the judgment is merely prima /ode evidence of indebted-
ness. Svrift V. Stark, 463.
7* Pbesumftion in Law that Debt was Paid is Raised where the creditor
lives near his judgment debtors for thirteen years after the rendition of
the judgment, makes no effort after the first year to collect it, and moves
off without any further effort to coUect, the defendants during all that
time having ample property to satisfy the judgment. Husky v. MapU»,
688.
Ci Seven Teabs having Elapsed after Rendition of Judgment, the char^
acter of the creditor for strictness in the collection of debts may be left
to a jury to show that the judgment had been paid. Id,
t. Judgment in AcnoN on Joint Contbact in Favor of One Defendant
DisoHABGEs Defaulted Go-defendant, if the former goes to trial on
a defense common to both defendants, but not if the defense is personal
to himself. The defaulted defendant is therefore not incompetent on
account of interest as a witness for the plaintiff if the co-defendant
goes to trial on a defense common to both, but he is incompetent as being
a party to the record. Swamey v. Parker, 549.
10. Ck)UBTS OF Law Exbbcise Equitable Sufebvibion over Judgments
Entebbd upon Warrants of Attobnet, and will, upon motion, stay,
modify, or vacate them, and award issues for the trial of facts, as the
ends of justice may require. Where the objection arises upon the face
of the record, this is the only remedy; but when it is founded upon facta
814 Index.
not appearing by the reoord, and wbich must be established bj parol or
other extrinsic evidence, then a suit in eqnity may be maintMned. M^
Indoe T. HcmOUm, 701.
11. Equttt will not Entibtaxn PBoonDiHO TO 8bt Asssm DEnonvB.
JuBOMXNT BT CoNnssiON where the phuntiff has an adequate remedy
by motion, in the action in which the judgment was rendered, to sofe-
it aside, as in this case. Id,
See Attobkbk and Clixnt, 1; Exsodtions; Paschxb8BZP» 9-11; PuASoro-
▲ND PBAOnOB, ld» 14^ 1ft.
JUBISDICnOK.
L JuBUDionoN OF Statb Ck)nBT whxbb Pbopbbtt n nr Hjjtds ov R»
onvxB Appointed bt Fbdxral Ooubt. — A state eoart has no jnxis-
diotion of an action to foreclose a mortgage, or to avoid or set aside sa
alleged f oredoeore and sale by the mortgagee under a power, where th#
premises were, at the commencement of the action, in the hands of a re-
ceiver appointed by a federal court having jurisdiction to make sncb
appointment; and it makes no dififorence whether the lien which snob
receiver was appointed to enforce was prior or sabsequent to that sought
to be enforced in the state court Milwaukee A 8L Paul E. B. OtKr,
MUwtmJMe and Mmnuota R, S. Co., 735.
SL StATI Ck>UKT HAS JUBISDIOTION OP AOTION IN TBEaPAflS BbOITOHT BT
HoBTQAGEE OP CHATTELS in posseBSJon sgainst a United States marshal
who levys upon them by virtae of an attachment from a federal oonrt
against the mortgagor's property. Ward v. Henrjff 672.
S. CrviL JuKisDicnoN op Alderscen and JnsncEs op Peaoi^ being Caa^
ATED BT Statxtte, can have no extent beyond what the statntes pre-
scribe, and most be measured strictly by statute law. FirmattMe v. Ma^
sm.
4. Statute BxTENDiNa Ju&isDicnoN m Attaohment Execution to Aldeb^.
MEN and justices of the peace, having expressly provided that wages of
Isborers and salaries shall not be liable to attachment in the hands of tha
employer, the wages of labor and salaries must be regarded as ezoepted
out of the grant, and jurisdiction in such cases withheld. /dL
JUSTICES OF THE PEACE.
See JuRiSDionoN, 3.
LANDLORD AND TENANT.
L No CoNscDEBAHON— Pbomise op AasiGNOB OP Lease to Pat Bent a
Landlord would Consent to Assignment. — Where there is nothing
in a lease requiring the assent of the landlord to its assignment^ an agree-
ment by the tenant, who wishes to assign the lease, that he will pay the
rent if the landlord will consent to the assignment, is void as being with-
out consideration. Even if the parties believed that such consent was
necessary, it makes no difference. Doughtriy v. MaUhews, 126.
Si No JuBisDicnoN. — Land Coubt had JuBiSDicnoN to enforce the rights
and obligations of lessors and lessees, and their respective nnirigniwn, by
the terms of the statute. Held, that such court has no jurisdiction of sa
action against a tenant who has assigned his lease, and has agreed ta
assure the payment of the rent by the assignee, for a breach of such
agreement Id,
See Co-tenanct; Fiztubbs.
Index. Bib
L1EN8.
!• Lddi ufon Lamd is hot EsTAn or interest therein, bat merely « eharge
npon it. BidweUr. Webb, 68.
li As MKtWEEB LZKNOBB WHOBB EQVmiS ASM EQUAL, the fint in pofait el
time take preoedenoe^ nnder the maTim, Qui frior in tempore^ potior €M im
Jmt, Booth r. Bufiee, 372.
HAUOIOnS FBOSBCUnON.
AonoN ox dun ion Maligioxts Pbobbcdtion will hot Lib for oanaing »
person to be aneBted on a warrant oharging an act which ii not a orime^
bat a treepasB only. Treepaae for the illegal arrest is the remedy.
Kramer v. Loti, 666.
MAKBAMUa
Mahbaicub to Sfiikib or Houbb or RxFBanzrTAnyis. — Where a bill
has been Toted npon by the members of the house of representatiTes,
and has been declared defeated by the speaker, and npon appeal, his de-
cision has been sostained by the honse, each nding and approval both
being made becanse of an alleged erroneous constmction of the oonstita*
ticnal provision requiring a vote of two thirds of each house to pass the
bill, the snpreme court will not grant a mandamuSf at the suit of a mem-
ber of the hoose, directing the speaker to send the bill to the senate.
A parte EekoUe, 749.
MABIOAGE AND DIVORCE.
L DmsnoM is Aofual ABAimomcxNT or Matrimonial Ck>HABiTATioir^
witB Intxht TO Dbsb&t, wiUfully and malicionsly persiBted in, without
canse, for two years. The guilty intent is manifested when, without
cause or consent, either party withdraws from the residence of the other.
IngereoU v. IngersoU, 600.
% Whxrb Wm, UPON KBB Husband's Failubb to Support Hbr, Sbpa-
BATB8 IROM Hw, and returns to her relatiTes with his consent^ the sepa-
ration is not a willful and malicious desertion on his part, such as will
entitle her to a diTorce, although he has ceased to write to her or to
answer her letters. Id.
%, Undbr Vbrmont Statutb, Supbbmb Ck>URT HAS PowBR, after decree ol
divorce granted, to give further allowances for the support of minor
children, and to grant the wife alimony in addition to the amount given
her in the former decree. Buckminster v. Buckminster, 652.
4. Whbrb Dbgrbb of DrvoncB with Alimony has bbbn Grantbd without
fraud or concealment, by which the court was misled, and upon a hea^
ing or according to agreement of the parties, the supreme court should
be very slow, under any circumstances, to revise or alter the former
decree. It should be r^arded as the final adjudication between the
parties. Id,
A. DivoRCBD Husband has Bjoht to Rbqard Obligation to Suppo&t the
former wife ended, and to be at liberty to enter iuto new relations with-
out the pressure of the burden upon him of being called upon to pay
'increased alimony to his former wife. Id.
€. Whbrb Dborbb of Diyobcb has bbbn Grantbd under agreement of the
parties, without fraud or concealment, and a liberal provision in alimony
made for the wife, after which the husband marries and has children by
bis second marriage, the decree will not be revised and additional ali*
mooy granted the first wife. Id.
816 Iimsx.
7. Divoaox AND Decrxeiko Custody ot Minob CHZLDRZir to Mothxb doea
not abeolve the father from hiB parental dnties and obligationa to thtt
former. He is still liable to contribate reasonably to ^eir sapport.
^lis dnty the court will enforce, bat in so doing will consider all th*
ciroomstances, and will not allow the right to be abnsed, as a corer for
the allowance of farther alimony to the wife. Id,
* MAKRIED WOMAN.
L Dud of Ma&rixd Wohan is Voidablb fob Dubxss, when ezecntad
nndsr threats by the hasband of separation or abusive treatment^ if the
ezecation of the deed was induced by a reasonable apprehension that the
threats would be carried into execution. TapUy ▼. Tapfey^ 76.
& OBJBcnoN TO Lbqal Gafacitt of a married woman to sue must be taken
by demurrer or answer or it is waived, and a motion to dismiss the action
on such ground is not in order at any sta^re of the trial, and should bo
denied, /i.
See Husband and Wdx.
MASTER AND SERVANT.
See Nbqligencb, 8; Sbduction.
MILITARY LAW.
L Snxmt in Timb of Wab, Who is. — One who resided within the linea
of the confederate army during the late war might be considered prima
fobde as an enemy of the United States, and his property as enemy's
property, and liable to seizure as such. Where the federal lines were
extended over his place of residence for a limited time, and the occupa-
tion of the latter army was precarious, this does not change his $iaim9.
But where the occupancy of the federal troops is permanent, a resident
within their lines is entitled to the protection of the law, aad his prop-
erty is not subject to Seizure, except for such causes as the law of neces-
sity in time of war justifies. Taylor v. Jenkins^ 773.
% Pbtvatx Pbopkbtt of Loyal Citizens is not Subject to Seizuze and
Appbopbiation, even for public use, nor to prevent its falling into the
hands of the enemy, unless there existed an absolute necessity for doing
so; and when an order is given to take the property, the discretionary
power given the officer must be sustained by the facts then existing. Id,
Zm SoLDiEB WHO Takes Pbiyatb Pbopebtt upon Ck)iacAND of his Supebiob
Offeceb may justify the taking under such order, but the officer com-
manding him must be shown to have acted in obedience to the command
of his immediate superior, or he will be a trespasser whose acts will not
operate to divest the title of the owner. Id,
4b Unauthobizbd Seizubb of Citizen's Pbopebtt by Militabt Fobcbs^
and placing it with other property of the army without marking it or
otherwise appropriaiing it, does not divest the owner's title. Id,
fi. Absence of Offendeb in Militabt Sebvice of United States does not
prevent the running of the statute of limitations which bars criminal
proceedings when not commenced within two years. Oraham v. Chm^'
monweaUhj 581.
Ci SoLDiEB IN Militabt Sxbviob of UNirED States RBMAiNfl "Inhabitant
of state, or usual resident therein," and is not within a statotocy pKoviaion
Imdbz. 817
lor panoni escaping and alMenting thanuehrea to avoid ponlah-
oMBt until lapaa of time might anaUe thorn to retain with imponi^. M
Sea Govnuora, 7; Taxation.
MINB8 AND MININO.
See Bncmo Vvbwoibmaxqm, 1.
MOBS.
See Ck>K8TiTTmo9AL Law, 2-7.
MORTGAGES.
I. Obartbk in Debd Whicb Recitbs that PasmsES Covvktwd amm 8u»»
jNCT TO MoBTOAOSy which he is to pay, is directly liable to the mortgagee
for the payment of the mortgage debt» although the mortgage is invalid
by reason of its having bat one witness. Boss v. Worthington, 96.
SL Minnesota Act of 1S58 Lioauzing Ck>NVKTANCE8 ov Rxal Estatb hav-
ing BUT Onb Witness, though retroactive, is nevertheless oonstitutiona],
and renders valid a prior mortgage having but one witness. Id.
3. MORTGAOB HAVING BUT OnB WITNESS, WmCH HAS BEEN LeOALIZBD by a
curative act, but the registration of which has not been legalized, cannot
be foreclosed by advertisement; But after its registration has been
legalised by a curative act, it may be so foreclosed. Id.
4 Mobtoagb mat be Foreclosed by Advbbtisexent if the execution, ia-
sued upon a judgment recovered for the mortgage debt» has been in fact
and in law returned wholly unsatisfied. Id,
5. Whebb Mobtoage is Given in Pabt to Seoube Mortoagbb aoaxmo*
LiABiLTTT AS Indobsbb of a uoto, which he, after judgment has been
recovered thereon by the holder against the mortgagor, takes up and
pays, the fact that no execution waa issued upon such judgment and re
turned unsatiified will not stand in the way of a f orecloeure by him. Id,
6. MoBTOAGB IN PENNSYLVANIA IS Mbrbly Seourity for the payment of
money, or for the performance of some act therein stipulated, and is at
most but a chose in action. IlorUman v. Oerker, 501.
7. Assignee of Mobtoage Takes It Subject to All Equities in favor of
the mortgagor existing at the time of the assignment, notwithstanding
the fact that he is allowed to sue upon it in his own name. Id,
6. MOBTGAOB PaYABLB IN FiVB TbARS MAY BE DiSGHABGBD BY PaYMBMT AT
Any Time within that period. Id,
9. Where Mortgagor Discharges Mortqagb by Paying Notes to which
it is collateral, such payment is valid against an assignee of the mort-
gagee who has neither given to the mortgagor any notice of the trans-
fer nor inquired of him concerning the state of his indebtedness. Id,
lOl DlFFERENF DeBTS SECURED BY Sa&CB MORTGAGE ARE TO BE Pa^ FROM
Mortgage Fund in Order in which they fall due. So held where a
deed of trust was made to secure the payment of promissory notes falling
due at different times, and the property on which the security was taken
was not sold until the maturity of all the notes, and was not sufdcient to
pay them all. MUcJiell v. Ladfxcj 150.
II. £vEN if Rights of AcnoN are Proper Subjects of Chattel Mobt-
oage, it is doubtful whether such a general description of them as ''all
oanses of action, demands, and choses in action, of whatever nature," etc.,
in the case of a railroad company having laige property and nnmeroua
JVM. Dec. Vol. LXXXVUI— TO
818 Index.
bvurinan traaaaetioni^ is sufficient to tnnsfflr tliem to ilia mof%>gBOi
Mikoauhee and JfmnctoAi B. It Co. t. MUwtmiM and Wetitm B. R. Cbi,
740.
12. MOBTOAOBB 07 PlBSONAL PbOFBRTT HOBTQAaKD TO SSOUBX PATXnrr OV
Debt becomes the absolute owner of the property after the day for the
payment of the debt has passed, and may sue for and recover tiie prop-
erty in his own name. If he has sold the property under the mortgage^
bat has not delivered it^ he may sue for it as bailM. Laeeif ▼• OUxmeifp
145.
18. Sams. — In Axy Etskt, Suoh Bigbxb ot Action will hot Pas bt
Sals undib Chattel Mobtoaob unless a spedfic and certain designation
thereof is given in the notice of sale, so that bidders may know what
tiiey are about to purchase, nor unless the price bid is in some measure
dependent on the existence of the respeetive rights of action mortgaged*
MthooMhee and Mhmuota S. R. Co. v. MUwamkee and Wettem S. IL Oa^
74a
14b Complaint to Eniobob Rights ot Action Obtainbd undbr Gbattb&>
MOBTOAOB Salb, whcre such complaint does not aver specifically that
such chases in action were sold at the foreclosure of the mortgage, nor
that the price bid for the property was in any way dependent upon the
exiitence of the rights of action mortgaged, does not show that the plain-
tiff has a right to maintain the action. Td,
IS. In Action to Cobbbct and Fobbclosb Mobtqaob, It is hot KBOsasAB¥
to Cobrbct DBaoRiFTiON before foreclosing, where the premises em*
braced in the mortgage will be the same after the correctiaa as before it.
Sehmitz v. Sckmiii^ 681.
10. No Error is Committbd bt Court in Corrbotino Mortqagb BBioBm
FoBBGLOfliTRB, where the judgment of foreclosure should have been the
same without such correction, and the judgment will not be reversed, fd.
See Jurisdiction, 2; Shipping, S-15.
MUBDER.
See Criminal Law.
NEGLIGENCK
1. Pabtt Ekplotbd in Position ob Trust ovbr Propbbizt or Othsbs m
Bound to the same care and attention that he would exercise over it-
were the property his own. Bayt v. Paul, 569.
SL Question or Nboligenob is One Peculiarly bob Jubt in a case where
the evidence as to the facts from which negligence might be inferred ie-
conflicting. Johnson v. Winona tic R, R. Ck>,,93,
S. It is not Neguoenoe per Se bob Passenger to Step upon Connbctino
Link between two railroad cars in alighting at a station after the traii^
has halted. Whether such act is negligence or not is a question to be
determined by the juiy, upon a consideratian of all the circumstances of
thecaae. Id.
4. Blind Travbleb Acting with Reasonable Care and Prudence does-
not contribute to an injury received by him in voluntarily going out of the
traveled path upon a night so dark that he could not be seen, when, hear-
ing a team coming toward him from an unknown direction, and at an un-
known distaooe, he leaves the road from a reasonable sense of danger to*
Mcure his personal safety, having reason to think that be wovld be ru»
Index. 819
over if he remained in the traveled path. In such case he b justified
hy necearity in so doing. OUdden y. Town qf HecuUng, 039.
A. FbOT-TRA VILER MAT Rbootsr idb Imjubt RioEXVBD by Voluntarily leav-
ing the highway under a reasonable fear of injury or sense of danger, and
in order to secure his personal safety. Itis not necessary to his recovery
that he was " forced out of the traveled path by unavoidable accident or
circumstances beyond his control.'* Id,
t. FooT-raavsLKK Who is Blind and ignorant of the condition of the high-
way has a right to presume that the road is reasonably safe in its margin,
surface, and muniments. Id,
7. Pusrr Who Recetvis In jubt by voluntarily leaving a highway through
necessity cannot be barred of his recovery by the negligence of one who
does not sustain such relation to him as would make his want of care im-
putable to plaintiff. Id,
6. RaiLBOAD Ck>MPANT IB LIABLE TOR Sebtakt's Nbolioknob in leaving
down the bars in a fence, whereby the plaintiff's horses escaped and were
killed by a passing train, though the servant wm employed as a day-
laborer, and his act was done in the night-time, and not in the business
of the company. Chapman v. New York Central H, B. Co., 392.
9L RaXLBOAD Ck)MPANT IS GuILTT 07 Ob068 AND CbIMIHAL NbOLIGENCE IN
Maxino ''Running Switch "over public crossing of its track in the
street of a populous village, where travelers are constantly passing; and
the question as to whether a railroad company has exercised its right of
making a "running switch" at a proper place, and with the use of due
eare, may be properly submitted to the jury. Brown v. New York Cetk'
train, B. Co., 353.
10. Damages fob Injitry Received bt "Running Switch " mat be Recoy-
XBED without Other Pboof of negligence on defendant's part than the
act of making such running switch over a public crossing in a populous
village, constantly passed by travelers, where the person injured at such
crossing is without negligence on his part. Id.
11. No Culpable Negligence is Established bt Proving that Stagb-
ODAOH Driver, in attempting to cross a railroad track, did not look in the
direction from which the cars were approaching until his horses were on
the track, where the usual signal of danger was not given as the stage ad-
vanced toward the crossing; and this although it appeared in evidence
that if he had looked before, he would have seen the cars in time to have
avoided a collision. Id.
12. Maxim, Sio Utbrs Tuo ut Alienum non Ladas, applied. Stinaon v«
New York Central B. B. Co., 332.
13. DuTT Which Railroad Comfant, in Management of its Trains, Owes
TO Shiffxr of Freight while loading his property in one of the com-
pany's cars, under authority from the latter, is the exercise of that ordi-
nary care which every man owes to his neighbor, to do him no injury by
negligence while both are engaged in lawful pursuits. Id.
I4b Railroad Ck>MPANT in New York has Power to Contract that Per-
sons Riding Free must do so at their own risk of personal injury from
whatever cause. Id.
15. Plaintiff is not Bound to Establish at Outset, as DisriNcr Affirm*
ativb PBOPOsmoN, that He was not Guiltt of Negligence in an
action against a town for injuries caused by the insnfficienoy of a high*
way. HUl v. Town qfNew Haven, 6ia
820 Index.
l^ QvsRioM ov CtoHTBiBUTOBY NBGUOBErcB 18 Ovs ov Fact for the Jozy.
Id,
17. PAflBENOIB n HOT TO BX DmiKD QuiUTT OF Ck>llTIIIBDTaBT KwfsuttEmm
WHEN Injubsd nr AmcFTDf q to Lbavs Cab on aeeing a tiam ap-
proaching at sach a speed that a colliirion was inevitable. Bud t. New
Tort Central B. B. Co., 271.
18. Railroad Ck>]CPAirr is not Absolybd from LiABiUTr iob Injubt to
Passxnoeb on Platpobic, ocenrring while he was attempting to leave the
car to escape a collision, nnder a regulation, pursoant to statate, pro-
hibiting passengers from standing or riding on the platform. IcL
19. Travbleb on Hiohwat ApFBOAOHiNa ITS Intersbciion with Railboad
IS Bound to Look out for approaching trains, and his failure to do so
is negligence, and not merely evidence of negligence. North Penmgfflf
tama R. R, Co, v. HeUman, 482.
fO. Whebs Plaintiff's Negliosngb Contpjbutis DmECTLY to hib Hubt,
he cannot recover for the injuiy. Id,
21. Joint Acthon in Negligxnce. — Passenger on public stage-coach, who ia
injured by a collision resulting from the concurrent negligence of the
driver thereof and of the proprietors of a railroad train, may maintain a
joiut action against both. Brown v. New York Central B. B. Co., 353.
82. Passbnoers on SrAaE-ooAOH cannot Recover fob Injubt Resultdto
FROM Neoligencb OF Thibd Pabtt, in case the n^ligence of the driver
of the coach contributed to the injury. The driver represents his pas-
sengers, and his negligence must be regarded as their negligence. Id,
S3. Passenger on Public Staob-coach is not so Identified with Pbopbib-
tors thereof, or their servants, as to be responsible for negligenoe on
their part. Id,
See Bailments, 3, 4; Common Cabriebs, 1; ByioENOE, 2, 8; NEoonABLi
Instbuments, 2; Shipping, 1, 3» 6.
NEGOTIABLE INSTRUMENTS.
1. Days of Gbaoe — Bill of Exchange. — A written request addressed by
one person to another, directing the pajrment of a certain sum on a certsin
day to a third person, is a bill of exchange, and is entitled to days of
grace, and a presentment for payment on the cUiy named is prematnrs^
and notice of payment refused, based upon such demand, will not bind
an indorser. Ivory v. Bank qf the State qf Miseouri, 150.
S. Neguoengb. — Bank Which Presents Bill of Exchange fob Payment
BEFOBE Expibation of the days of grace to which it is entitled, and
notifies the indorsers that payment has been refused upon such demand*
which notices do not bind the indorsers on account of such premature
presentment^ is guilty of negligence and liable to an action by the owner
ofthebiU. Id,
Sl That Bank is not Accustomed to Deal in Cebtain Glass of Papeb
Gdnstitutes No Defense to an action for its negligence in dealing with
a certain bill of that class, if the paper is such as banks generally deal in,
and if the bank in this instance did undertake the collection of this par-
ticular bill. Id.
4 Written Promise to Pat Non-existing Bill of Exchange must Point
to Particular Bill, and describe it in terms not to be mistaken A
general letter of credit is too indefinite for this purpose. But a person
who takes the bill, and advances money upon it upon the ftdth of this
Index. 821
latter, may maintaiii an aotioik against the promuor to reoover the
amoimt which he has adTanoed. Valle v, Cerrt^t Adrn'r^ 161.
i» Bell of Excjhahob — LBma of Crxdit — Drawivo for EzoBsaiyi
Amount. — Where one of two merohants purchasing goods from each
other, and maVing reciprocal shipments, authorises the other by a gen-
eral letter of credit to draw on him at any time upon any shipment, te
the extent of three fourths of the value thereof, and the latter in pur-
suance of such letter draws « bill upon a shipment^ and transfers it to a
banker for value, the latter is required only to look at the letter of
credit and the value as stated in the invoices and bill of lading to see U
the drawer is exceeding his authority by drawing for more than three
fourths of the value of the shipment. Id.
A. HoLDEs OF Bill of Exchanox oawot Biooyxb as upon Aookbted Bell
WBXN Hb onlt Shows Conditional Aogbftamg^ the terms of which
have never been complied with. Ford v. Angebrodt, 174.
7. HOLDXE OF Bill is EnTITLXI) to AbSOLITTB UNOONDmONAL AOOEFTANai
i GW EI8 Box, and may reject any other. If he relies upon a conditional
acceptance, he must show affirmatively that the condition has been com-
plied with. Id*
8. Not Assionmxnt of Funix ^ Bill of Exohangb showing upon its &ce
that it was intended to be n^otiated, and which was afterwards nego-
tiated to plaintiff and which upon presentment was refused acceptance,
is not an equitable assignment of the fund upon which it was drawn,
although the drawee had promised to pay any balance that might be i»
his hands. Id,
9. iNDOHaxBS OF Fbouibbobt Kotb arb Estofpsd vkom I>enyino thxib
Leabiutt thxrbon, where, after it has been protested for non-payment
and their liability fixed by notice, they sell the same, with the evidence
of such liability attached, although after such sale there had been no de-
mand of payment of the maker and notice of non-payment given to the
indorsers. St, John v. Boberta, 287.
10. TlRANSFBBBBlt OF PBOMIBSOBT NoTB BT DbLITXBT WITHOUT InDOBSXUKNT
tbxbebt Wabbantb that it is what it purports to be, and that it is
neither forged nor fictitious. He is therefore incompetent, on account
of interest, as a witness for hu transferee. Sioamey v. Parker, 549.
II. Notb is Entibxlt Discharged at Law where one of sevend suretiea
thereon takes it up by another note of the principal, indorsed by such
sorety, and he has no right in equity to keep the first note alive for his
protection in case he had to pay any partof the second note. BameU v.
2200(1,674.
NOnCK
I. Allboation that Notice of Sale was Published "foe Thbbe Succes-
8IVB Wbbks Previous " to the sale does not show a compliance with a
Jtatute which requires such notice to be published "for three weeka
successively next before such sale." Montour v. Purdy, 88.
S. CtouRTS Take No Judicial Notice of Official Charaotbb of DeputI
Mawwwal Ward v. Henry, 672.
OFFICE AND OFFICERS.
See Constitutional Law, 12; Notice, 2; Sheriffb, 8-6^
PARENT AND CHILD.
See Marriage and Divorci:, 7; Skdcction.
S22 Index.
PARTNERSHIP.
^. LiABiUTT OF DouMART pABTNKB. — Wher6 there is a domuuit partner, s
eredit will not be preenmed to have been given on the aole and separat*^
respooBibility of the oetensible partner, bat will bind all for whom the
partner acts, if done in their business and for their benefit^ and the dor-
mant partner may be sned when disoovered. Bkhard^m ▼. Farmer, 129.
-% CuEDrroB MAT Takb Individual Note of Pabtiteb. — Where the part-
ners are all known, and the existence of the partnership broaght home
to those dealing with them, the latter may take the individual credit of
any member of the firm if they so choose. Psrties have a right to ^•k^
their own contracts, to assume extraordinary liabilities, or to take Infe-
rior securities where they might have insisted on greater ones. Id.
8L CfUBED BT Vebdict. — In an action on a partnership note, where the exiat-
ence of the partnership is not sufficiently pleaded, after verdict, a mo-
tion in arrest of judgment will not lie upon that ground, as the diefect is
cured by verdict. Id.
4. Onb Who la Membeb of Several Fibmb mat Dbaw aitd iRDOBas Waw»
Papeb as the representative of each; and this is no ground for suspieioii
that his indorsement of the name of one firm is in bad fiith to the other
as maker of the note. MiUer v. ConaoUdaikm Batii, 475.
6. Where Partner in Two Firms Made and Indorsed, in Name of Ora
OF Them, Note payable to its own order, and then indorsed the name
ef the other firm, there is nothing on the face of the paper to indicate
that the note was not drawn by the first firm in their usual course of
business in a partnership transaction with the second firm; and the bank
discounting it is not put upon notice as to ihe good faith of the oonmion
partner in executing 'it by the mere fact that the note and indorsementi
are all in his handwriting. Id,
t. Doctrine that Separate Debt of One Partner shall not be Paid out
of the partnership property tiU all the partnership debts are paid implies
only where the principles of equity are brought to interfere in the distri-
bution of the partnership property among the ereditors. IBtttugkL v.
i^miCA, 233.
^7. Transaction whereby Managing Members of Embarrassed Firm unite
in forming manufacturing corporation under the general law, and then
transfer to it the property of the partnership, is fraudulent as to exist-
ing creditors, and the property so transferred may be taken in execution
as that of the former firm; the creditors of the new corporation have no
priority of claim to the property in its possession. Booth v. Btmoe, 372.
8. One Partner cannot Maintain Action at Law against Other to re-
cover a sum of money advanced by him to be invested, under an agree-
ment before witnesses that the profits arising from the investment, if
any, should be shared equally by the partners, and in the absence of
proof that the money advanced was a loan, or that the partnership wa«
limited to any part of the adventure, or that it was limited to any par-
ticular time, or that it was dissolved. The remedy is by bill in equity
for an account on dissolution, and decree for any balance found dueu
Kewbrau v. Snider, 667.
0. Judgment bt Confession against MoIndoe and Shuter, Partners,
Era, IF Irregular, ib not Void, where the parties oonstitnting such
firm have executed a warrant of attorney, containing the full names of
the judgment debtors, and authorizing such confession of judgment^
and where they have in their answer to the action released all errora
Index. 823
that might mterTene in entering up judgment, or in iaaning ezeeation in
the canae. Mclnd/oe ▼. H<mdUm, 701.
IOL PmOI IN JUDOMENT BT GONnSSIION AGAINST MgInDOS AND ShUTEB,
PABTNBBSy xra, hj reason of not giving the fall names of the parties
oonstitating snch firm, must be disregarded under the Revised Statutes
of Wisconsin, 1858, c. 126, sees. 37, 40; or if not, it was certainly cured
by the statute of amendments before the code, Revised Statutes of Wis-
consin, 1849, a 100, see. 7, subd. 10, making such a judgment good
where the full names of the judgment debtors had be^ once rightly
alleged in any of the pleadings* or proceedings, as in this case. Id.
31. Omission in Judgment bt GoNnnsiON against McIndok and Shutkb,
Pabtnsrs, etc., of the full names of tiie parties coustituting such firm
may be amended under section 8, chapter 100, of the Revised Statutes of
Wisconsin, 1849, by a warrant of attorney which the parties oonstitnting
such firm have executed over their full names, authorizing confession of
judgment^ and which has become a part of the record. Id,
See Shipping, 16, 17.
PLEADINO AND PRACTICE.
1. Objection op Non-joindeb op Pabties Plaintipp ib Waived if not
taken advantage of by demurrer or answer. DoniM v. Walsh, 361.
S. Allegation in Complaint that Dependant "Has oe Claims an In*
tebest," etc., does not relieve him from proving that it is a redeemable
interest, and the evidence must be the same as in other cases of disputed
title. Smith v. SmUh, 707.
Sb Denial in Answeb op " Each and Evebt Matebial Allegation of the
complaint " is insufficient. Whether a denial be ja;eneral or specific, there
should be no room left for mistake as to what is denied and what is
admitted. Montour v. Purdy, 88.
4. In AonoN pob Bbeaoh op Contbaot, admitted by defendant to be in full
force, and to contain an agreed price for certain specified services to be
rendered by him, an allegation in his answer as to the value of services
rendered is immaterial, and should be stricken out. Siarhtids v. Dmnklee,
68.
0. In Action por Bbeach op Contbact for transporting cord-wood, if de-
fendant admits that he received and transported a large quantity of such
wood, a denial that he has no knowledge or information whether the
quantity of wood was as stated in the complaint or otherwise is bad, un«
less some special reason is given why he did not know. Id,
A, General Denial must be Depinite and positive; it must deny what is
not admitted. Id,
7. Denial op Each and Evebt Allegation in Complaint, except what the
oourt may construe to be admitted in the foregoing part of the answer,
is both indefinite and uncertain. Id,
8. New Matteb, CoNSTmrnNG eitheb Entibb ob Pabtial Devbn8E»
must be Pleaded in order to be admissible in evidence. MorreU v.
Irving Fire Ins, Co,, 397.
H. When Depect in Pleading Cubed by Vebdiot. — Where there is a de-
fective statement in a pleading which would have been fatal upon demur-
rer, and where an issue has been joined which necessarily required the
proof of snch defectively stated iact, and where the verdict could not
have been rendered without such proof of such fact^ the imperfection or
omission is cured by verdict. Bichardaon v. Farmer, 129.
824 Index.
10. KxwLT DlsooYEKED EviDXRox — Niw Tbzal. — AppHcant for new trial
upon groand of newly discovered evidence mnst show that his bilnre Uy
disoover the evidence before was not attributable to any negligenoa, and
that he need dne diligence. IcL
11. Vabiakok. — Where plaintiff declajes upon a pazol promise, and the proof
shows that his action is based upon a sealed instrument, the vsriance is
fittaL He cannot set up one cause of action in his petition, and on the
trial prove another and diffsrent one. Dougherty v. Matthews, 126.
12. No Vabiakgb. — Where plaintiff declared that defendant had <unmed ta
pay certain rent, and the evidence showed that he had promised to aaaure
it, there is no variance, as it is sufficient to allege a promise according to
its legal effect. Id.
13. Whxrs Judgmsmt, as upok FAiLimx to Akswxb, was Ehtbred ov
.Fntar Dat ov Tsbh, and Siombd bt Clerk, It must bb Pbisumxd that
it was entered while the court was in session, and that due proof was
made of the non-appearance of the defendant, thou^^ such proof does not
appear of record. Bunker v. Rcmd, 584.
14. Jin>OMXKT MUST BX RxvBBSXD WHXBX Instbuotiov not properiy apfpli-
cable to the evidence was given, and it appears that the jury were
probably misled by it^ to the injury of the appellant. Ward v. Semy,
672.
16. Bbbob ooNGXBNiKa AssTRACfT PBOPOSTTioir, having nothing to do with
the case, is not sufficient to reverse a judgment. State v. Skippep, 70.
16. Chabox will BE pRxsuvxD TO BX FuLL and correct in every partionlar
not excepted to. Id.
17. PABTT IS Entitlxd TO FuLL, Faib, avd Ezfuoit Axswxb to RIX
Pbateb tor Instbuction, if pertinent; but where the evidence so re-
quires, the court should make such qualification as will adapt the in-
struction to the facts, and enable the jury to make the neoeasaiy dis-
crimination and decide the cause correctly. Sofs v. Paulf 569.
16. JUXWHEMT WILL NOT BX RxVXRSXD BXOAUBX JUDGX BELOW OmIITBD TO
Statk ms Conclusions of law, as required by statute, if the facts found
sustain the judgment, and it appears that the appellants cannot be in-
jured by such omission. SchmUt v. SchnutK, 681.
10. Answer does not Set up Counterclaim where it alleges that the con-
tract in a complaint upon a note for money borrowed was usurious, and
that a certain sum, less than the principal, has been ''paid on the note,**
if the law makes a note given on a usurious contract of loan valid ta
secure the repayment of the principal sum loaned, and no more. No
statements of such an answer can be taken as true without proof. Id.
20. In Personal Actions, Nonsuit will be Entered as to All Plain-
tiffs, where one of the several co-plaintifb shows to the court that the
action was brought without his knowledge, consent, or authority, and by
petition duly presented, requests to be nonsuited. And an oififor of indem-
nity by the other co-plaintifb to the petitioning plaintiff, not made tiU
after tiie presentation of such petition, will not ordinarily prevent a non-
suit. Brown v. Wentioorth, S2Z.
SI. NoNSurr should be Granted if Evidence is not Sufficixnt to warrant
a verdict, or if the court would set aside a verdict if found. Diyo v.
New York Central B. B. Co., 418.
22. Whxex Vxrdict is for PLAiNTixr, Evx&T Issux NxdsaABT TO SusTAnr
It is Prxsumxd to have been found against the defendant. Johmmm v.
Winona etc B. B. Co., 83.
Index. 825
S8. To OuABViivi'i IiisufiuuuvoT OF BnDiNOB TO BuvtAa VxBDiory there
mnst be sach a want of evidence on some materia] pomt in issoe as eatis-
fiee the coazt that the joiy in their finding were inflnenoed 1^ partialiigr
or prejudice^ or mialed by some mistaken Tiew of the case. Id,
S4. PowxB TO Grant Nxw Tbials on Gboukd that Vxbihot is aoainsfi
WxiGHT GW BviDKNoa SHOULD BB CoNViNSD» it soems, to the ooort be-
fore which the case is tried. HUl ▼. Taum qf Hew Bdven, 613.
S6l APMTBglON OF IXMATXEIAL TiSTIMONT WhICH WoBKS No INJUBT ia
not sufficient groond for a new tanaL Winona ete. M, M. Co. v. Waldron,
100.
9ft Vbrdiot Skt asidb, Niw Tbial Qbantbd^ webn. — When a special con-
tract contained in a bill of lading exists between an owner and the car-
rier for the transportation of goods at the owner's risk, which imposes
a difforent liability upon the carrier from that charged in the dedarationy
and the jury retnm a verdict for the owner, it should be set aside, and a
new trial granted, for the variance. BaUimore and Ohio B. B. v. Bath'
hone, 664.
flf7. Afpbal Libs fbom Obdbb SnoxiNa out certain portions of def endant'a
answer, when the order involves the merits of ibe action. StoHmek v.
l>unklee,eS.
58. All Obdbbs Madb nr Fbogbbss of Oausb involve the merits of the ac-
tion and are appealable, except those relating merely to matters resting
in the discretion of the coort^ or to qnestions of practice. Id.
59. Afpbllatb Coobt will not Nonas Gokflaint that the court below
charged in answer to a verbal request after the argument had closed.
The only question is, Was the instruction correct ? BameU v. Beed^ 574.
90. SUPBBMB CiOUBT OF PENNSYLVANIA HAS No POWBB IN CaFITAL CaSBS
TO Rbvibw Points not Tailbn in Ck>UBT Below nor filed of record, but
is confined to exceptions taken on the trial to some question of evidence
or law, or to an opinion of the court below upon a written pointy which,
with the decision, must be filed of record as in civil cases. Hopkins v.
OommorvfeaUh, 518.
91. QuBsnoNS OF Disobbhon not Subject to Review. — The decision of
the original tribunal, in admitting or excluding inquiries as to particular
transactions wholly irrelevant to the issue, and put for the avowed pur-
pose of discrediting a witness, or otherwise disgracing or degrading him*
is not subject to review except in cases of manifest abuse or injustice^
and the exclusion of such inquiries is no cause for reversaL Tumpie
Boad Co, V. LoomiB, 311.
8ee Apvebsb Possession, 2; Assitmpsit; Attornet and Client, 2; Crimi-
nal Law; Damages, 1; Mobtgaoes, 14, 16; Pabtnbbship, 3; Replevin;
Slander; Statutb of Limitations.
POWERa
1. General Rule Relatino to Powers of Attorney is that Power must
BE Pursued with Legal Strictness, and the agent can neither go be-
yond it nor beside it; in other words, the act done must be legally iden-
tical with that authorized to be done. Lamp v. Burr, 135.
9l Lv Powers of Attorney, Principal Authority Includes All Mediate
Powers which are necessary to carry it into effect. A direction or au-
thority to do a thing is a reasonable implication of the powers necessary
to aooompUsh it^ unless there is a special restriction, or unless an inten-
S26 Index.
tion to the cQntnry is to be inferml from other parts of the autborilrf.
Id.
3b OXRBRAL POWKR OV AtTOBITKT HbLD TO OONVBK POWZK TO TRAir8VS»
Pbopbbtt ov Gbantob fOB Bbnert ot bis Cbsditobs. Where a
man who was about to leave home, without much prospect of retomiiig^
made a power of attorney to another, giving him full anthority to trans-
act all business of every kind and description, to collect and receipt for
all moneys due, and to sell and dispose of all his property, there oan bo
no doubt that the main purpose to be accomplished was tiie payment of
his debts, and the agent may make a deed of trust to a third person to
secure and pay off the creditors of the principal. Id.
4- PowxB TO Sell Pkbsonaltt does not Authorize Babteb ob Exghanok.
C% qfClevdamd ▼. Bank o/Ohio, 445.
t Ck>liMIS8I0NERS KmFOWKBBD BT SPECIAL StATOTB TO Aci IN BSHALT OV
CiTT in subscribing to stock of a railroad company and authorized to sell
the stock, " and to do whatsoever else may seem necessaiy to secure and
advance the interests of the city in the premises," have no power to ex-
chauge the stock for stock in another company; as the power to sell does
not include the power to exchange, and the clauBe following does not en-
large the specific powers before conferred, the phrase " in the prem:kes "
limiting the discretion therein granted to the manner of exercising the
powers specifically granted. Id.
C Commissioners Authorized bt Statute to Act in Behalv of Cinr de-
rive their powers solely from the statute, and those ^^'^g with them or
claiming under them, directly or remotely, are bound to take notioe of
the extent of those powers; and the city is not estopped to deny the ex-
istence of a power assumed by them. Id,
PRINCIPAL AND AGENT.
See Agsnci*.
PUBLIC LANDS.
See BouNDABiEs, 1-3; Dedication.
RAILROADS.
1. OWNXB CANNOT RbOOVEB DaMAOBS FOR MULBS KlLLBD UPON RaILBQAB
Track by the engine and cars of the company, although they liad, with-
out his knowledge, escaped from a properly fenced field, aod were at the
time of the accident on the crossing of a public road over the railroad.
Nortfi Petm. H. H. Co. v. Rehman, 491.
See Common Carriers, 11-15; Eminent Domain; Hiohwatb, 2; Nbali*
OENCE, 8-14, 17, 18.
RECEIVERS.
Ebgeiyers of Insolvent Foreign Corporations and Assionbib of
Bankrupt and Insolvent Debtors under the laws of other states and
countries are allowed to sue in the courts of New York. It is true, their
titles are not permitted to overreach the claims of domestio creditors of
the same debtor pursuing their remedies under the laws of that state;
but in the absence of such contestants they fully represent tbo ii|^itB ol
the foreign debtors. Petenen r. Chendcal Bami, 298.
Index. ' 827
KENT.
See Oo-Tiir,A]roT; Landlokd axi> Tbtamt.
REPLEVIN.
I. BxPLKva D0B8 NOT LiB foT property in the enatody of the law, nor oia
croes-repleTm be maintained, ffagan ▼. DmeU, 709.
^ Not in Custody of Law— Rxplxyin. — Where defendants have re-
plevied property from a third person, and it has been delivered into their
possession upon their giving a bond, plaintiff may replevin it oat of their
hands before the settlement of their suit with the third party, if plain-
tiff was not a party to that snit^ as the property was not in tiie enstody
of the law. Id.
Z, Statdtx Giving Third Person Right to CJoNTBarr Titlb to Pbopbrtt
Rkplbvixd before sheriff and jnxj does not prevent the party from re-
sorting to any other remedy which the law gives him. The statutory
remedy is not ezdnsive. Id,
4. Remsdt whsbx Pbopkbty in Custodia Lxoib has been Replbvibd is
not a motion to qnash, especially where the writ has not been retomed.
The defense should interpose a plea in abatement or in bar. Id,
5. Plaintiff in Rkplevin icat Show that Valub is Less than That Al-
leged IN Complaint, when. — A plaintiff ia replevin who has obtained
possession of the property under the statute, and against whom the de-
fendant seeks judgment for a ret.im of it» or the value in case a retom
caxmot be had, may show that the value is less than that alleged in the
complaint, although the answer does not deny such alleged value, /en-
Uns V. SteanhOf 675.
C Evidence as to EIind ob Qualttt of Lumber in Dispute is Admissibui
FOR Plaintiff in Replevin as a means of showing its value, and also
as bearing upon the question of ownership, where there is a contest over
lumber from two different mills, and there is a great difference in the
quality. Id,
7. LffjuRED Party is Entitled to Replevy Whole Body of Mixed Lumbeb
where one willfully and indiscriminately intermixes his own lumber with
that of another person so that they cannot be distinguished, and where
the two lots so mixed are of different qualities or values. Id,
8. Plaintiff in Replevin may Provb in Mitioation, as the defendant in
trespass may, a return of the property, or a part of it, to the defendant
after the suit was commenced and before judgment. Booth v. Ableman,
730.
9. In Mitigation of Damages, Payments on Judgment under which offioer
had seized goods on execution, though made after the commencement of
a replevin suit against the officer to recover the same, should be admitted
in evidence for the plaintiff in that suit. But it seems that the plaintiff
ought not to be allowed to prove the payment of the judgment after the
suit was commenced, in bar of the defendant's right of recovery. Id,
lOl Burden of Proof is upon Defendant to Provb Amount before Hb
CAN have Judgment in Replevii« for the value of the property and dam-
ages for its detention, where his answer in the replevin suit alleges that
he holds the goods as marshal or sheriff under an execution, etc., but
does not show the amount of the execution. Id.
II. Jury are to Assess Full Value of Goods in Replevin where the
pleadings and evidence show that the party recovering is the general
owner, or is a bailee, and conneets himself with the general owner. Id,
828 Index.
12. JuBT ABB TO Tjotd oblt VALxni OT Pabtt'b ISTKBaBafv Who Bboovxbs Vf
BxFLEvnr if the pleadings and evidenoe show that he has only a spadal
interest in the property, and that the general property is in the other
party. Id,
18. Bkplxvin, What Ahount mat bb Rbootkbxd nr, whbbb OmoBB
Holds Pbopbrtt under Execution. — Where property is replevied fron^
a sheriff or marshal who holds it nnder ezecntiony and who has only the-
ezeention creditor's interest in it, the valne of the officer's interest ia-
the amount of the ezecntion, with interest and costs thereon; and ahoold
he recover, the amount of his recovery will he limited to this amount;
where the value of the property is greater than the amount of the eaw»
oution. Id.
See DAMAOBSy 1; flmmfja^ 8.
sioxa
See Constitutional Law, 2-7.
SALES.
1, Beatbmbnt bt Vendob that Hogs Sold are ''suitable and proper for th»
New Tork City market " does not constitute a warranty, hut is a mara
expression of opinion. BaarUeU v. Hoppoek, 428.
S» Caveat Emptor is Rule or Salb in Absbnob ob Eztbess Wabbantt,
where the vendee has equal knowledge or equal opportunities of knowl*
edge of the character or quality of the article sold with the vendor. Id,
8. Warranty of Fitness ob Articlb bob SpBomo Purposb cannot be im»
plied from a knowledge on the part of the seller that the article is in*
tended for such purpose, except where the vendor is a manufacturer. Id,
4. Conversations between Vendee and Other Persons at Time of Salb
tending to show the vendee's knowledge of the real quality of the artida
may be regarded as part of the res gestce connected with the issue of
warranty or no warranty; their admission is within the sound discretion
of the court, and whether admitted or rejected, it is not error. Id,
0w Contract fob Sale of Cattle at Specified Price, Which Contek«
PLATES Delivery at Future Time, and provides for a deduction from the
price if upon delivery any of the cattle be dead, is not a bill of sale, and
does not pass title, but is merely a contract to sell, and the vendee or his
assignee has no right to take possession of the cattle without the conaanfe
of the vendor. Eownadale v. HunBoker^ 465.
See Executions; Guabdian and Ward; Powbbs, 4-6; Taxatiob.
SEDUCTION.
1. Action for Seduction is not Maintainable upon Relasion of Pabbby
AND Child, but solely upon that of master and servant. WhUe v. KeQk,
282.
5. AcrnoN for Seduction cannot bb Maintained upon Proof of SsDUcmoB
Merely; but the plaintiff must show that a direct injury to his rights
as master resulted therefrom. Id.
8. Parent may Maintain AcnoN for Seduction of hi3 Minor DAUOBTEBt
on proof that a venereal disease was communicated to her by the act^
rendering her sick and unable to work. Id.
SERVnUDEa
1. Obb of Two Adjacbnt Parcels of Land Ltinq Lowbb thab Otbbb
owes to the upper parcel a servitude to receive the water which naturally
Index. 829
mns from it; but the indnfltty of man oannot be^naed to create the ser-
Titode. Butler ▼. Peck, 452.
% OwHXB OF Land hayino upon It Mabsht Babxn of Watxb, from which
ia timee of high water a portion overflows and nma through a natural
channel upon the lands of another, while the remaining portion has no
natural oatlet, bat continnes in the basin until it evaporates, cannot law-
fully conduct such remaining portion out of the basin by means of an
artiiScial drain constructed along the natural channel so as to cause it to
flow upon the lands of the lower proprietor. Id.
SHERIFFS.
1. Sheriff is Ikoomfbtert to Act when he is a party to the record or in*
terested in the suit; and in such case, the execution of process by him or
his deputy is unlawful and void. Stewart ▼. M^agneaa, 598.
% Fact that Debt had been Paid befobb Entbt of Judgment does not
make the sheriff a trespasser for executing process to enforce it, or the
judgment creditor a trespasser for suing out the writ. Bameti y. Beed,
574.
8. Shebiff and his Subetdes are Liable on his Official Bond for a
breach of official duty occurring after the expiration of his term of office;
as where in his official capacity he receives during his official term notes
for part of the purchase-money of land sold on partition, and after his
official term refuses to deliver them to the proper parties, but converts
them to his own use by collecting the money due on them and suzren-
dering them to the maker. Brobst v. ShUen, 458.
4. Measure of Damages in Action on Sheriff's Bond fob Conyebsion of
Notes received by him in his official capacity is the value of the notes,
and it cannot be urged in mitigation, even by the sureties, that the plain-
tiff may still resort to the maker for payment, the collection and surren-
der of the notes by the sheriff having been unauthorized. Id*
8. Shebiff and his Subeties in Action on his Official Bond abe Liable
FOB All Monet he may return as received from a sale, though it may
exceed the amount that the purchaser was required by the terms of the
sale to pay in cash. Id.
6» OoNSTBUCTiON OF FoBTHCOMiNO BoND. — A sheriff held distinct executions
against L. and C, and levied on lumbar as the property of L. He de-
livered the lumber to the plaintiff in the execution against L., taking a
forthcoming bond reciting that execution and the levy of the goods as
the property of L. The property was afterwards ascertained to be O.'s.
Held, that tiie obligors in the bond were liable for the forthcoming of the
lumber to meet the exigencies of the executions against C, notwith-
standing the recital in the obligation of its ownership. Ehana v. McUaon^
584.
7. Shebiff is not Estopped from Dentino Truth of his Return as against
one who fraudulently procured him to make it. Id.
8* Parties. — In Action of Replevin against Sheriff to Recover At-
tached Property, the attaching creditor should be allowed to be a co-
defendant, under the statute which permits any person to be made a
defendant who claims an interest in the controversy adverse to the
plaintiff. VaJOe v. Cerrt'a Adm'r, 161.
0. Pbopertt in Third Person mat be Shown, when. —Where a mort-
gagee of chattels brings trespass against an officer who levied on part of
880 Index.
fhem irliile in phiiitiff*t posseanoii by Tiitiia of an atfatchnwDt aguM#
the mortgagor^ and the defandaat daims that enongb pwjMirljr wma left
In plaintiff's possenioa to aaiiafy the mortgage^ plaintiff may shoir that
a part of the property left with him did not belong to the mortgagor, bat
to a third penon. Ward v, Henry, 672.
See EzxoimoNS; EzxMPnoHB^ 6.
SHIPPINa.
I. It d Dutt ov Flat-boatkan, when Tuo eaa Flat-boat dt Tow, to
Aid in managiTig the tow and to obey the directiona of the pilot of
the tog. Bat if the pilot fails to give sufficient orders, or Csils to give
them in time, negligence may be imputed to the master of the tog, aa
well in this as in any other respect. Haif9 ▼. Ptml, 660.
S» Tdcb and Sufticiknot of NxcBsaABT Ordxss Fall wrrHnr Dorr or
Tea when a steam-tug takes a boat in tow, undertakes its management
and control, and assumes to give the necessary orders. Id.
8. It D Nbolioenck ox Pabt of Tuo, where its officers, with a boat in
tow, give the boat insufficient orders, or give them too late. Id,
4. Om Who Uses Tuo fob Towing ifuar Kkow Capacdt of Tuq and
its practical effects upon the boats in tow. Id
6w When Chabactbb and LoABiira of Tow abb Vibiblb akb Qpbh, and
her depth in the water and everything in regard to her are patent U^
all, it would be negligence on the part of the tow-boat captain to under-
take to tow such a flat if too heavily loaded. Id,
6» Tow-BOAT Caftain is Best Judge of Wiiat his Tow-boat gah Do, and
when asked to tow a craft too heavily loaded, or otherwise unfit to b»
towed, he should decline, or apprise the owner, and make special terma
as to the risk. Id,
7. Towing of Boats ib Undebtakino Iicplting Suitioient EjfowLEDaB
and skill to perform safely. Id
8. Bottombt IB Ck>RT&AOT BT Which Owneb OF Ship Htpothbcatbs Oft
Binds It as security tor the repayment of money advanced for the U8»
of the ship. It is a contract in the nature of a mortgage of the ship»
and the interest to be paid is generally called ** marine interest." Bray*
nard v. Hoppock, 349.
0. Onb Essential Featubb of Bottombt is, that the money lent is at the
risk of the lender during the voyage, and that the repayment thereof
depends on the event of the successful termination of the voyage. It ia
the very essence of the contract that the lender runs the risk of the
voyage, and that both principal and interest be at hazard. Id,
10. It is not Bottombt if Monet Loaned is to bb Kbpaid at All
Hazabds, for the principsl and extraordinary interest reserved is not
put absolutely at hazard by the perils of the voyage. The lender muai
run the maritime risk to earn the maritime interest. Id.
II. Thebb can be No Pessonal RESFONsiBiLTrr IN Valid Bottombt. The
money must be advanced on the faith of the ship, and at the sole risk of
her loss or safety. So» if by the terms of the contract the owner binds
himself personally to repay the loan, it is not a bottomry loan. Id
12. If Vessel is Lost at Time when Monet on Bottombt Loan Beoombb
Patable, the lender cannot recover either principal or interest; and
where her arrival in safety entitlea him to repayment^ he is oonfined t»
the security of the ship, and cannot enforce his daim personally against
Index. 83)
the owner beyond the Talne of the pledged fond which may come inte
his handi. Id.
18. Loan ib not Bottombt Loan wheu Oollatx&al SaouBrrr ib Gxyui
lOR ITS ABBOLun Bkpatmxnt, as where insurance policies and the
ressel itself are assigned as security. Id.
14. Ck>NTBAOT OF LOAN, FALSXLT CaLLXD BoTTOMRT, IB USUBIOUS AND VoiIV
where it reserves to the lender a greater interest than the lawful rate,.
i»liMnning it ss " marine interest. ** Id.
Uk MoNXT CoLLBcrxD BT Lendxs ON Securitibs Ooixatklal to UsvRioa*
Loan, Falsblt Called Bottombt, may be recorered by the borrower
in an action properly brought for that purpose. Id.
16. Pabt Owners or Vessel are Tenants in OomiON as to title, but as re»
spects earnings of the vessel, they are partners en any voyage on whick
it is sent by them. DotmeU ▼. Walsh, 361.
17. Partners in Earningii or Vessel should All be Joikbd in action t»
recover freight earned. Id.
SLANDER.
1. Vermont Statute Authorizzno Notice gw JuBnnoanoN in sUiider as %
substitute for a special plea dispenses with the form but not with the
substance of the plea. Such notice, to let in evidence as a defense not
admissible under the general issue, must contain all the facts necessary
to constitute a good special plea. NoU and Wife v. Stoddard, 633.
I. Plea of Justification in Slander need not justify the coUoqmum. It is
sufficient to justify the words which constitute the slander as charged in
the declaration. Id.
B. Where Words Charged in Slander are Divibiblb without materially
changing the sense, or constitute two distinct slanders or charges against
plaintiff, defendant may justify one and rely on the general issue in de-
fense of the other. Id.
i. Where Words Charged as Slanderous are Ambiguous, plaintiff may
allege the meaning of defendant in the language which he used, and if
the defendant pleads justification, he must justify the words in the sense
in which they are alleged in the declaration. It is not sufficient to jus-
tify the very words used. Id.
6. Evidence is Admissible in Slander of the report abroad in the com-
munity, caused by the charge made by defendant in uttering the slan-
derous words, as tending to show the extent of injury to plaintiff, and
the extent and necessary consequences of defendant's wrongful act for
which he was responsible. Id.
t. In Slander, Evidence of Distress of Mind and anxiety suffered by
plaintiff is admissible so far as it tends to prove the extent of the direct
and natural consequences of the defamatory words spoken. Id.
7. Slander. — Plaintiff mat in Good Faith Make Inquiry through %
third person of defendant if he has made a slanderous charge against
plainti£^ and if defendant in malice reiterates the charge in reply, the
words spoken at that time are actionable; but if the inquiry is made as »
trick for the purpose of inducing defendant to utter a slander, the worda
thus eUcited are not a ground of action. In such case, the question of
malice is for the jury. Id.
8. Slander. — Malice ib Implied bt Law where words spoken are defama-
tory and actionable. In such case, the question of malice is generally not
submitted to the jury, except upon the question of damages, unless tb»
882 Index.
ooeasioQ of speaking ihe worda is saoh m to lelmt tlia infaraaM of
malice, and render the speaking prima facie exeoaable. In the latter
instance there must be malice in fact to warrant recovery. Id.
t. (Slahpxb. — ifAT.mM IB NOT Implibd in cases of confidential oomnmnioa-
tions. In these cases» malice mnst be proved by eztrinsio evidence^ or
inferred as matter of fact by the jury from the draunstanoes. Id.
SPECIFIC PERFORMANCE.
I. Wbkbb One Agbxis in Writino to Pebmtt Another to Search ka
Iron Orb on his land for a fixed time, the latter to then have the option
to purchase the land at a fixed price, part to be paid upon the execnticm
of the deed, and the balance to be secored by mortgage upon the prop-
erty for two years, and the vendee, having elected to take the land, and
given notice to the vendor, at the same time tendering the amonnt agreed
to be paid down, brings ejectment to compel a specific performance, evi-
dence that the contemplated nse of the land woold destroy its valne
within two years, and that the vendee's drcnmstanoes were such that
he would be otherwise unable to pay the mortgage debt» is inadmisBihle
when it is not shown that the vendee's drcumstances had changed after
the making of the contract. Corson v. Muioany, 485.
& Agreement for Purchase aw Land at Option or Vendee onlt is not
so devoid of mutuality as to prevent its being enforced specifically. Nor
will the vendor's refusal to accept the consideration destroy the mutoal-
ity of such contract, although the vendee mighty upon such refusal, have
retracted his election. Id.
X Vendee icat Waive Full Pereormance or Agreement vor Pubohasi
of land, and take such title as the vendor can give. If, therefore^ be
agrees to waive a release of dower by the wife of the vendor, the hi^n
cannot object to a performance on the ground that his wife refuse to
sign the deed. Id,
4. COMMON-LAW ReMEDT B7 EjEOTMENT, UsED AS MeANS TO COMFEL SpB-
oono Pereormange, in Pennsylvania, is not taken away by the gran* of
equity powers to the court of common pleas. Id.
See Corporations, 6, 7.
STATUTEa
J. When Bill has Passed Both Branches of Lboulature, and Bxnr
Signed by the proper officers, and sent to the governor for approval, it
cannot be recalled except by the joint action of both; if the governor
sends back the bill on the request of one house, any action it may take
thereon is a nullity. People v. DevUn, 377.
1L Bill Passed bt Joint Action of Both Houses of Legislature, signed
by their officers, and approved by the governor, and deposited in the office
of the secretary of state, becomes a law, notwithstanding any action
either house alone may taike in regard thereto. Id.
3. Legislative Journals are not Evidence to Impeach Validitt of Aor
upon the statute-book; but it seems that where the constitution requires
a two-thirds vote for the passage of an act, courts may look into and be-
yond the record to see if it was passed as a majority bill or by the reqoi-
site two-thirds vote. Id.
4. Statutes will be Presumed to have been Intended bt Lbgislaiuxe
TO be Prospective, and not retrospective, in their action, where a retro*
Indxx. 83S
■peotm cObet would work mjostioe and distiirb righti ftoqoixed under
Hie f onner law. Rk^ardmm v. Cook, 922.
S. PBosraoTiTB, AKD HOT Rn.'JtoflFiu'i'i V ■, EmoT WILL BB Qtwk to eeotioB
25, chapter 63, General Statatea of Vermont, providing that "no ao-
knowledgment or promiae ehall be held to affect any defense made under
Uke provisiona of this chapter, nnleea raoh acknowledgment or promise
th^ll be in writing, signed by the party affected thereby," and therefore
the statnte will not apply to an action pending when it took afifoct Id,
C IH AbBMSOM OV Ck>MTBABT PBOQF, Ck>UBiTS OV OnH StATI WILL Aflsuiia
THAT Law ov Avothxb State respecting the alienation of choaea !■
action is the same as their own. Petersen y. Chenueal Bank, 298.
See CovstrivvLOVAL Law.
STATUTE OF LIMITATION&
DBOLamAiiDir xv Aonov uhdib Statotb ior OAusmo Dbatr or Pnm
D SuffDUUMT AfTiB ViBDiOT, where it alleges the time of death, whkk
was within two years before the commencement of the actioii» withcnt
specifically alleging that it waa within two years before the action was
^^j—iwum^iiiil Em y. Toum qf New HaMU^ 618.
See ConniTUTAOiiAL Law« ft.
SURETYSHIP.
1* flOBmiB W QlTABlllAll ABB BHTITLXD, ZN EQUXTTy TO BB BSUBTBD ffOIB
their sore^ydiip, or secured against loss, before payment of their prinei^
pal's debt EowU y. CM, Wl.
% Ubbbb Tbvivbisbb Oodb, Subbtt HA8 BaoBT or AonoB aoainct Fbzvoi*
PAL before the debt is due, bnt no final decree shall be made until the
debt is dne; or if the principal will aecnre or indemnify the surety, th»
attachment may be discharged. Id.
See JirDOMBBTB^ 8; Nbootzablb LmrBUiiBMn^ 11; 8iUMiff% 8-4.
SUBVEY&
See BouBSABiBi; Ooei% S.
TAZATIOK.
L FowBB TO Tax bob Pubposb of PBOYnxnro BouBTiBi bob Thxwb Wbo
SHALL FuBimH SvB8TiTUTi8 nnder a pending call before being drafted,
and have them credited to the town, city, or Tillage, so as to ayoid or
help to aToid an approaching drafts while it may not rest npon the groond
of gratitude, can be sustained npon consideration of the benefit accruing
to the town, city, or Tillage from the credit^ which is direct and palpable.
Brodhead ▼. Milwaniee, 711.
1. Lboihi.atubb mat, dt GoMsiDXBATioii OF Soldibb's Sbbtiob, Oivb to
Hdi ob his Fajolt Suitablb Bouhtt aftbb ms Eblibticbivt in the
military service of the United States nnder an act of Congress and a call
of the President of the United States, or even after his term of senrioe
has expired; and it may authorise municipal corporationa to raise money
by taxation for the payment of bounties to such Tolunteers who may be
credited to such town, city, or village upon its quota under such calL
It may provide for bounties from the state at large, or from counties, as
well as cities and towns, without regard to the system of congressional
divisions. Id.
Am. Daa Vol. LXZXVm-^
834 Index.
X Geafteb 14, Wisconsin Laws ow IB6&, ab Shown in Sicffnm 1 of Viifff
OF This Oase, was Held to be Valid, and appUoaUe to the mtj of
Milwaukee, as well as to townsand villages. It did not oonfliet with tht
oharter of that city, or repeal or modify it in any pirtieiilar, and waa
not inTslid hecaose it required sach tax to be extended on the assess*
ment roils of the previoos year. Id.
4i Tax Lsvxxd in Crrr of Milwauxxs, fob Pubposb of Rajshto Monxt
FOR Payment of Bounties to Yolimteers, under Wisoonsin Laws of 1866^
chapter 14, was held not to be mvalid by reason of certain all^^
irregolarities or defects in the proceedings of the speoisl meeting of tho
electors of said city by which the tax was voted. Id.
4. Pbinoiples Laid down in "Gbxat Leading Case" of Sharpieu ▼. Ma^for
qf Philadelphia, 21 F^ St. 147, S. C, 59 Am. Deo. 769, npon the sabjed
of taxation, were aooepted as correct and approved in this case. Id.
% Lboiblatube cannot Cbsatb Public Debt, or levy tax, or anthorize a
municipal corporation to do so, in order to raise funds for a mere privato
purpose. Id,
7. Objects fob Which Monet ib Raised bt Taxation must be Puxuc^ and
such as subserve the common interest and well-being of the communis
required to contribute. Id.
B. COJTBT WILL NOT BE JuSTIfflED IN DbOLABINO TaX VoID, AND ABEBSTDfO
Proceedings tob its Colleohon, unless the absence of aD possibls
public interest in the purposes for which the funds are raised is so desr
and palpable as to be immediately perceptible to eveiy mind. Id,
9. Claims Founded in Equitt and Justice^ in the largest sense el Hiosa
terms, or in gratitude or charity, will support a tax. Id.
10. Gbatftude to Soldier for his Sbrvioes, be He Volunteeb, Serstn-
Tun^ OR Drafted Man, will sustain a tax for bounty money to be paid
' to him or his family. Id,
11. Patment of Bounties to Volunteers to Fill Quotas and Avoid
Draits is Such Public Pubposb as will authorise state or mvnieipal
taxation. The bounty is not a private transaction in which the indi-
vidual alone is benefited. The object is not to obtain mcmey for the
volunteer, but for the community which is to be relieved by the Tofain^
teer. Id.
1% Procuring of Substitutes is Lawful and Pboper in Itself; and so
far as the public interest is concerned in being relieved from a drafts
there is no distinction between paying bounties to them and to those
who volunteer. Id.
13. Taxing Power Rests ufon Regifbocal Dutibs of Protection and
Support between the state and the citizen, and the exclusive sovereignty
and jurisdiction of the state over the persons and property within its ter-
ritory. And every citizen of the state, and all the property aooompaay-
ing his person, br falling Intimately within its territorial juriadiction»
is subject to this power. McKeen v. Cmuity qf Northampton, 515.
14. NoncE OF Tax Sale Rsquibed bt Statutb is essential to the validity
of the sale. Bidioea v. WM, 56.
16. NoncE OF Tax Sale Headed as Follows: "Auditor's Office, Ramsey
County, Minnesota, St. Paul, December 8, 1862," and containing no fur-
ther description of the premises than as " Roberts and Randall's Additian,
lot 11, block 20, lot 12, block 20," and nowhere desoriUng the additioa
or lots as being in any particular eity or county, is insnffidflnt. Id,
Index. 835
18. KonoB OF Tax Sals must Givs Pabttoulab and oertain description of
hmd to be sold, so that the owner may know that it is his land, and
bidden may asoertain its locality, with a view to the re^^olation of their
bids. Id,
17. Whxri KonoQi of Tax Salb n Insufficixkt, the officer has no anthority
to seU, the sale is void, and the purchaser acquires no title.and takes
nothing by his deed. Id,
18. Ehfoboxicsnt of Lien Aoquoubd thbouoh Tax Salx. — Claims of estates
or interests in real property adverse to the oooapant are the only matters
within the pnrview of the Minnesota statnte allowing an action to bs
broQght by the party in possession of real estate or by his tenant againsi
any person claiming an adverse estate or interest therein, and a lien
aoqnired through a tax sale is not a proper subject for adjudication in aa
action brought under such statute. It must be enforced in a sepaiats
action. Id,
19. Tax Salb xb Void whxbx Lands bayb bkut Sold fob Illioal Bxcbm
OF Fxvx 7BB CmT more than the amount of taxes and charges for
which tiiey were liable to be sold. KhnbaU v. Ballard, 705.
SOl Owvxb oak Maihtaib Suit to Cahcxl Tax Dkbd to ms PBnmn^
where they have been sdd for an illegal excess above the amount of taxes
for which they were liable, by tendering the amount for which th^
should have been sdd, with interest at seven per cent Id,
tl. tirmrnoRAL Qmasioir of Taxable PBOPBBrr bt Abbbbsob, Matbbiallt
AJtbotino Equalitt OF Taxation, and increasing the burden of the
party complaining, will avoid the tax; but the unintentional omission of
such property by the officer attempting in good faith to carry out tbs
requisitions c^ the law will not. Smith v. SmUh, 707.
& LaOIBLATUfiB HAS POWXB TO PBBSOBIBB FoBM OF PBOOBBDINGB Df AbBBBB*
KBMT AND CoLLSOTios OF Taxbs, and, in matters of form, may deolars
what steps shall or shall not be essential to the validity of a tax sale or
tax deed. Id.
& Dbrndant in Action bt Tax-titlb Claimant must Maxb Dbfosit re-
quired by chapter 22, VHsconsin Laws of 1859, in certain cases, or show
OQOiditions of the aot in which a deposit is not required, or that the taxes
are unjust and void in equity. Id,
M. In AcnoN bt Tax-tttlb Claimant, It ib not Svffigdent that Db-
fbndant'b Answbb Allboxs Deposit required by chapter 22, Wisconsin
Laws of 1859, in oertain cases; but it must be proved, and there must bs
a finding of the fact, to sustain a judgment for the defendant, /d.
16w BxBOunoN OF Pbopxb Tax Debd mat bb Compelled bt Wbit of Man-
damus. Where a tax deed, fatally defective in form, has been issued
to the owner of a valid certificate of a sale of lands for taxes, he may,
tiiough he has never been in actual possession of the land, compel the
derk of the county board of supervisors, by momdarmis, to execute to him
a proper deed. 8taU v. Winn, 689.
S6w Omibbion of Wobdb "as the Fact la," in Tax Deed^ whebb thxib In-
BBBTION 18 Rbqvibed BT STATUTE, IB Fatal Dbfbot; and the deed
will not give the vendee a title on which he can recover in an action of
ejectment^ or transfer to him the constructive possession of vacant lands.
These words are in the nature of a certificate on the part of the officer
who executes the deed that he has examined the records and finds the
flMts to be as stated in the deed. Id,
636 Index.
tl. Clebx ov OonvTT Boabd of Suymtvaons oahbot Rirom to Emuu'jm
Fbofsb Tikz Desd to owner of a valid cerfcificato of sale of laada for
tearasy and to wliom a deed Vitally def ectiTo in f onn haa been ianiedy on
the groond that the certificates of sale of said land, which were iamed to
the oonnty , had no other proof of aaeignment than an indonement of the
name and official title of the person who was derk at the time el anch
allied assignment^ where such officer was anthoriaed bj the anperriaon
to assign snch oertificatarf. Id.
S8. Valid AanoNifsirr in Namb or Couktt mat bx Wbittbm ovxb Namb
Asn> Official Tiiub of Clbrk of ooonty board of saperviaorsy where
oertifioates of sale of land for taxes have been issoed to the ooonty as
pnrohaser, where the pnrchaser has been authorized by law to assign the
same by writing his name in Uank on the back thereof and where soeli
elerk, having aathority to sell and assign the certificates, has assigned the
same by writing his name and official title in blank on the back thereof
Id.
n. GlXBK of CoXTNTr BOABD OF SUPEBVISOBS CAK HOT BXTCBB TO 'EXECOTM
Pbopbb Tax Dbbd to owner of a valid certificate of sale of lands for
taaces, and to whom a deed fatally defective in form haa been issued, en
the ground that such certificate is defective in omitting the words "ao-
oording to the facta,** or that, after being assigned in blank, it was trans-
ferred to a town or dty which had no power to purchase or sell such
oertificates, and was received by the plaintiff from such town or city. It
is doubtful whether these objections would be good if taken by one who
had a right to insist upon them; but the dark cannot raise them, eepe-
dally after he has received and canceled the certificate. Id.
W. Glbbx of Boabd of Sufxrvisobs, ufon Pbbsxbtation to Hdc of Hold-
bb'b Cbbtifigatx of Pubghasb of lands add for taxes, shall execute in the
name of his county, as derk, a deed. If the certificate has been assigned,
the assignment is to be presented with it. His duty is simply to receive
the certificate and assignment^ and make the deed to the holder. He is
not to inquire through whose hands the oertificate has passed. But the
only assignments whidi he is required to take any notice of are audi as
are on the back of or attached to the certificate. Id.
n. QurroLAiM Dbbd vbom Pubohasbb of Land Sold at Tax Salb d hot
SuGE AanaNMBHT of the certificate of purchaae as to anthoriae the clatk
ef the board of supervisors, under the Wisconsin statute^ to issoo s deed
from the ooonty to the grantee in such quitdaim deed. /dL
See COBFORATIONS, 11.
TBESPASS.
lee CBmnrAL Law, 8; Damaoxb, 1; Euboutaon, 7; ToBoatM Bhtet amb
Dbtaxxxb; Gbowzho Tbbbs, 1; JuRisDionov, 2; ICahoboub FMoov*
noN; Qbebiwwe, 2, 9.
TROVEEL
I ' See DA1CAOB9, 1; GBowna Tbob^ L
TUa AND TOW.
See Smppmci, 1-7.
TRUSTS.
1. PiMiPBBTr Hbld nr Trust fob Dbbtob, anb fob ho BBBsrn; kat nr
OsirBBAL BB RKaoHBDb Under the New York legidation, throng the
Iia>EX. 887
igenqr of a oofort of equity^ and applied to tlie tatiffM^doaL of hia debta;
Imt not property held in tnut for him npon a tniat» or arising out of a
fond prooeeding from a third person, and intended to eeonre the debtor
a rapport. Qraff v. BonneUt 236.
% Txanr AuaiRO our ov Fund PsooEKDnio nox Thibd PxRSOir, lamrDCD
TO Sbodbs Debtob Sufpobt, is not Absoluislt Ezxmpt from equity
Jurisdiction, nnder the New York legislation, bat is snbjeot to the same
oonditions nnder which other trost property maybe enjoyed by a debtor
■eoore &om the attacks of his oreditors. Id,
f. Surplus onlt of Tbubt Fund vob Support op Dxktob, after Providino
FOR Support, oan rx Riaowrd by his creditors, nnder the New York
legislation. Id,
4. Trust Rrbults zn Fator of Prihgepal when property is porohased by
an agent, in his own name, with his principal's fands. Oroeber t.
Orodter, 291.
IL Bona Fidb Purcba8Rb, without Notiob, of Corporate Stock, will be
Protboted against Sxorxt Trust in fsTor of a third person, where
sndi person, by his own Tdnntary act, has conferred the apparent right
of property in the stock upon the vendor. Id,
t. Purchaser of Corporate Stock, with Notiob of Trust in Fator of
Third Person, takes nothing as against the eetlmi que tnuL Id,
?• Transfer of Debt Transfers Trust Properit Convbtbd to Sbcurr It,
as the debt is the principal thing, and the tmst deed only an incident.
MUeheU v. Ladew, 156.
t. If Trustee Commitb Breach of Trust bt Loanino Assets of Trust te
a third person, the latter is bound to indemnify the trustee; and if he
has the trust property in specie, a court of equity will compel him to re-
store it to the trustee &om whom he borrowed it» ilUott's Eafr t.
Beevet, 610.
See AaBBor, 6; Bzboutors and ADioNiaTRATORS, 1.
USAGE.
USAOB IS GONSIIHERBD Df OONSTRUCTION OF CONTRAOn^ upoil the grODnd
lliat in the absence of express stipulations parties are deemed tocontraol
with reference to known existing usage. Johnaonyr, Concord B, B, Ocrp,^
200.
See Custom.
USURY.
L T^UNSAcnoN IS Usurious Which PRoviDn as Condition to Renewal
OF BzmnNO Loan that new notes, reslly payable at the same place as
the old ones, shall be made payable at another place, so that the lender
may exact the difference of exchange in addition to the l^gal interest.
Price V. XyoM Bank, 368.
ft. UsuRT IN Transaction Avoids All Subsequent Sbouritjleb GROwnia
out of It. Id,
See Shipping, 14, 16.
VENDOR AND VENDEE.
L Grantee Who Takes Deed Ezprbsslt Subjboiino Land to Patiubt
of Judgmbnt or other encumbrance subsisting against the grantor, and a
lien upon the land, makes the debt his own as between himself and hia
888 Index.
gnator, asnimiiig it as a part of the powhaaa monsy; and the payiiMBt
ol the anoombraaee will create no eqrrity against a powhaaa moaey mort»
gage given to the grantor. BvMeif^ Appeal 468.
f. PuBOEASEB 07 Lavd Who Unbebtakss TO Pat MaoEAHics* Ledib Sob*
8I8TINO UPON Pbofibtt acqnlres no equity, by the payment thereof^
to dednot the amount from the amount of the pnrchaee-money mortgage^
since the payment of the liens is a part of the consideration of the sale.
Id.
S. Ynnons hat 8bt off, to ExTBirr of Ukpaid Pobohasb-xovet, Valus
OF GROTmro Tdcbeb Taken fbox Land by the holder of an advem^
title while in possession under an order of re«titntion, although the
dees were not entitled to a conyeyanoe until the purchase-money
paid, and had taken no covenant for prior possession, where the vendor
sold the land pending an action of ejectment, and on recovery put bia
vendees in possession, from which they were evicted on revernl of th»
Judgment, and upon a retrial, judgment was again rendered against him,
which he suffered to remain final, but on succeeding in another eject-
ment^ he restored his vendees to possession. Weatiand v. Hofimmt 660i
4b Ck>NTKACr Held to be Mebelt Ezbootobt, where a father, who owned a
tract of unimproved land, said to his son that he would give him one half
of the land, not designating which, if he would remain with him a year,
although the promise, in nearly the same terms, was afterwards repeated,
designating the north half, and although the son assente<l and remained
with his father, and some marks were made to indicate the line, and
some improvements were made; and the whole tract will pass at a sheriff's
sale under a judgment entered against the father prior to a conveyance
of the land from the father to the son. WUlep v. Dcqr, 562.
i. Vendee undeb Alleged Pabol Contbaot zn Possession for Long TncB
is not held to proof so rigid as under a recent sale. Id.
flL Gbantbs Who Taxes Land in Payment of a precedent debt, and with
full knowledge of the circumstances under which his grantor acq;nired
title, takes it subject to all the equities which existed against it in th*
hands of the grantor. Tapky v. Tapley, 76.
See GoNFLior of Laws; Fixtubbs; fipionio Pebfobmanob.
WAYa
OwvBB OF Land Bubdbhbd wite Rioht of Wat d Bound to Fdbvob
KBAffi>y<*T"f* FAdLUXBa^ determined by the drcumstuices of the eaae^
for ita enjoyment by the one entitled to the right. BahoMm v. TaSboi^
S76.
WILL&
Dbvuees Take peb Oafita, undeb Bebiduabt Devibb to the 'testatxu'a
oonsins and the children of her mother^s cousins, to be equally divided
among them, unices something in the will indicates a different intsntioo
CO the part of the testa^iz; and so^ under such a dense "onto my
oonsins and to the children of my mother's cousins, to be equally divided
between theuL" Farmar v. KhnbaO, 219.
iee EBCAXS OF I>BO0n>ENTB; BZEOUTOBS AND ADMINIRBASOBS; JUDOMBNTS^ ^
WITNBSSE&
L Inquibibs on Ibbblbvant Tones to Bdgbkdit Witness kat bb Pbb*
lOKTBD ON Tbiai^ IB the discretion of the judge; but snoh inqniries may
I2n>xx. 889
be «xcladad withoat infringing any legal ri^t of the putiat. TWnpOi
Soad Co. T. Loonds, 811.
S. QuisnoH Which It is Auxb DiaiuBnro to AmwxB oe to Dsaura to
Akswxb should xxvxb bb Put, onleai, in the judgment of the oonrt^
it 18 likely to promote the ends of jnatioe. Id.
9. Ih PBAcnoB, AsKiNO OB QuBSTioNs TO Dbgiubb Witvbsb IB Rbqulaibd
by the distvetion of the judge in each particalar case. Id.
4, Stbictlt Speakiko, therb is No Casb in Which Wmws is at Libbbtt
TO Objbct TO Qubstion. That is the office of the party or the ooorti
The right of the witness is to decline an answer if the ooort snstains his
daim of priyilege. When the question is relevant, it cannot be exdndad
on the objection of the party, and the witness is free to assert or to wahre
his priyilege; but when the question is irrelevant, the objection properij
proceeds from the party, and the witness has no concern in the matter,
unless it is overruled by the judge. Id.
A. Pabtt is hot Enthued to Answbb to Ikquibt Tbrdino to Dibobbdit
WiTHBSS, or to otherwise diagraoe him, unless the eridenoe would bear
directly upon the issue. Id.
t. OOVRT BBIOBB WhICH GaUSB IB TbIBD IB AUTROBIZBD^ IB SXBBOBB OB
Bound Ddcbbtion, to Exoludb Dispaiuoino Inquibibb as to partieu*
lar transactions irrelevant to the issue, tending to degrade the witness
or put for the avowed purpose of discrediting him; and this may be done
upon the objection of the party without putting the witness to his eleo-
tion. Id.
Y. BiBPABAOINO QUBSnONB, NOT RBLEVANT TO ISSUB, AND PUT BOB EXPBBBB
PUBPOfiB OB DnCBBDITINO WiTNBSS, OB OtHBBWISB BaaBADINO HlMy
SHOULD BB Allowed, in the court's exercise of a wise discretioD, when
they will promote the ends of justice^ but excluded when they seem un^
just to the witness and uncalled for by the circumstanoaa of the ease.
Id.
8. €k>UBTB HAVE POWEB TO PBOTBCT WITNESSES BBOM IbSBLBVABT AsSAUIff
AND iNQunnnoN. Id.
9. Mode of Examination op Witness allowed by lower court will not be
critidsed or reviewed unless it is apparent that some gross injustice re-
sulted therefrom. Tapley v. Taijpky, 70.
10. Pabtt to Suit on Contbact is Incompetent Witness for either sida^
although he may be disinterested. Swamey v. Parker^ 649.
11. Witness mat Tbstiit that Cabbiaqb Appeared to Stabt vbom Pab-
nouLAB Point, on knowledge derived from the sense of hearing, althon^
the carriage was not seen by the witness. Staie v. Shmbom, 224.
IS. Expebt mat Tbstift that Entbies in Hotel Rboistbb, Seen and Ex-
amined BT Him, were in the handwriting of the person who wrote cer-
tain other signatures produced and proved or admitted to be the
defendant's, although such entries were not before the jury, having been
destroyed by the defendant himself, in order to suppress the evidonoe.
Id.
1S» Tbbtdcont OB Expxbt mat bb BBCBiyED TO Pbove Sionatubb BT Ckm-
PABIBON, although there has been no evidence from any person acquainted
with such signature. Id.
H. Bntbibb upon Books ob Thibd Pbbsons of tkbib Dailt Tbansaokiobi^
made by persons whose duty it was to make them, and who testify to
their correctness when made^ but who have now no remembrance of the
transactions^ are competent to be read in evidence; and it is no objeetioa
840 Index.
to thdr admianon tbi* ihtj mn fini antared upon a date hj two
■qhb during th« 6mj, and at night oopiad by oom of lliam inte tba book^
provided tiie original antriaa and oopying are rarifiad by tha partial
making thOTUt icIL
Nnonnrry and to pravant tha iailiii« of jnatioa^ aa in qnaationa of ida»>
tity of panon, handwriting, aoanda, aiaa^ distanoa^ and tha lika. Bat
whan tha faota upon which tha opinion ia f onnad oan bo atatad and da-
aoribad, thay mnat ba^ and the jnzy be left te fonn thair ofwn opinion*
WMiUerT. Tawm <if FraMkh 18B-
IC TBamoirr or Wronns nusr Horn at Tmi or Aoomnr did vot Af>
nuft TO n VmnwasED, bat aolky, ii adiwiwlbia witUn tha nda wUab
fSroB naoaanty* ioL
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