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^T— 3 r 


f..-. THB 

American Decisions 


The Comtm of thb Several Staxb 


Bt a. 0. FBBBMAN, 





JUL 29 1942 

aooordiag to Aol of CongreH ia the ymr 1887* 
OOm oltlM UbnviAB ol OoMiwiL al 

-» k 

• •• 

• • • 

• V •• • 



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 






in ptrtnfhMM, and tt« nombflr of tbm Ameftoui Dadiloiw in 
whkh tlMf «• i^w p orttd 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 


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) 


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 


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; 


{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, 



AUioAti's Bzaoator T. Bmtm. TrutU 49F^ St 4M..... 610 

AppMl of EDiotfe's Bzocaton. InmKramee, 60 Fk. St 76. 626 

AiuMtlmu g ▼. 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 


t6 Casks Bbpobtxd. 


^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^^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 



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 


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, 


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 



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, 


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, 

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 


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, 


Casks Citsd. 



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 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 

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 


Ca8£8 Cited. 


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 


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» 


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. 



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, 


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 


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, 


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) 


Cabbs CmD. 


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, 

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. 


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 


Casks Cited. 



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 


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, 


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, 


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 . . 



Cases Cited. 


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. 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 


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, 


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. 


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 


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 


Ca8X8 Cited. 


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 


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, 


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. 


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» 


Hooper ▼. WakiDaon 457 

HopkinsT. Fofr^yth 865 

HopkiDB T. Upduir 806^748 

Hme ▼•People, 



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 


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 


HneVa Appeal. . . . 
Hu^ea, Bperte. 
▼. Huidiee 


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 


Cases Cited. 


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. 


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. 



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— • 


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 


Cases Cited. 


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, 


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 


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 



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, 


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. 


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, 


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, 

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, 


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 


Cases Cited. 

Myera t, Toacan. 


. 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. 


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 


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 







Parry, Ez parte. 
Parsons y.HiU. 
Parsons y. L; 
Parsons v. 




Caus Citsd. 



Partridge ▼. Bere 828 

BHlsy ▼. Freeman 440 

Batch ▼. WheaUand 866 

Fatten T. Gnemey 868 

Fatten v. Northern Gent. BV Co. 1 16, 


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 


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 


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, 

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 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. 


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^ 


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^ 


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, 


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 


Cases Citkd 


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, 


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 


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, 


Cases Citkd. 



flouwf f i llo 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 


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 


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. 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, 


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, 


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» 


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. 


▼. IjondflB. firii^toOy 

and Bonth OoMfe B> Oo. 428 


Town of Guilford ▼. SaperviBon 

of Chen Mtf o 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» 

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 


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, 


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, 


Walkery. Beeyes 326, 327 

Walker y. Welch 182 

Wall V. Coyington*. 182 

Wall y. Hinds 331 

Wallace y. Lowell Institation for 

Sayings 194 


Gases Cited. 


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, 


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, 


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 


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, 

Wilkes v.Hungerford Market Ca 635 

Cases Cited. 



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, 

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 


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 






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 co n Teyaaee, 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 pi t ipefl^ 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 pr op erly 
— ^^**^* 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. 

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 pr oper ty 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 ae p a wt e 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 bo r m wed 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 p w iper iy, 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 

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 

Idnr VFQV Laitd d hot Bbtaxs or hstsNat theratn, bat bmnI/ n chaiga 

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 

^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* 

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 


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* 

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»- 

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; Ooyo LUMVJuiE a B ot: 8ae yiemmm ▼. FoUer, Si Am. 

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 Mn Bi a a im 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 ▼. St hu i't n ekr , 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 pr oper ty 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 pnrpo ae a 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 B vwi H Yi a ovB, 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 

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 

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 P bimump t ivil y 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: Smifh t d ▼• 
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 

p^ lomnBOf A, Ml J 
Mvaraa is Puisimsp iboh DsfiisiaAani and intanttonal 

S us Hi u io ir 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 p e t * p o ti stor 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 

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 


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 

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. Cbmiw o iripeB/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 dia ti n g ni a h betwee n 
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'mmi t 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 

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 

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 

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 dee m ed 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 P arjaaiva 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 Tom wban nade nadar aedae laiiiaeat 
■ W tbe bMilaadk' Xcadlai^Y. JlMo, 87 Any Dear dilL Md aeleiii 


[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 gaawj f imi , end ntf otier aula of B HUnma ada m 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. 


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 eie ou tJ Mi 
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 P rbvjw t 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 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. 

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 

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 representa ti Yes 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 

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 


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 

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 

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. 

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. 
MuiBJMO TA 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. 


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. 

r BOcr w^ i/tmnaof by the holder against- the meBiga gQi ^. 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 

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. 


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 

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 


114 WmoNA ETC. B. B. Co. «. Waldbon. [Mfam. 

dftiDigM am to bo allowod whore londi ore pennanoaily u f mHummL •■ 
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 pitip ei ly 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 
bnai i Mwa 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 eo nip stt» 

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 


or THB 




Eddy v. Liyinqston. 

ftt MmoUBi, 487.] 

Dnoor of Hohst, Maniutuic, 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 


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 

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: Camm r ▼• Whtomt 66 Am. Dao. 761, 


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 

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 o s m wi erf 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 

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- 

The other judges concurring, the judgment is reversed and 
the cause remanded. 

YixEAHOB^ What CtoH smvrsB ! 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. 



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- 

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 


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 
el a ted , 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 P un«»»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. 

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 

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 
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 co m pro m ise 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 


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 pr oyviy after the day for the 
pajmaat of the debt faae pasBed, and may sne for and reeove r 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 

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 eonve ra ion of tiie pro pe rty. 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— ym m^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 

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 
presentm e n t , 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 
OoN H T iTUTM 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- 

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< 

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. 


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, 

ADTSBn PDa n wiDN BanDnw uvoh I b t ju it iu bi 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 

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- 

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 

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 mi fl repre se n t atlons, 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. 


— 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 
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. 


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- 

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- 

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 

a ica£zDf «:il2G 

be DO VoDgBt anr 

28 Yt. 118 [65 Am. Dte. 

169 [35 Am. Dec 607]: B-jm 


gpvemed oy the 



T. JKx, 4 Mea. * W. 791; 

Dee. 76]; 3 F 

cam the i hipiii e ut 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 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 

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 

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 

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. 

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 A tfuswai> 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. 


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 

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. 


Di na 



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 


fnper items <i{ a oort4nIl: Cbe t. Cftarteton «lr. fn«. Cb., 4$ Am. Deo. 77L 


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 l ec o yc iy 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 e o ns t n i ed 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 s e n 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. 


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. 

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 

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- 

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 

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 

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. 


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 D mow t b^ 
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^ 

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 prop er ty, 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 prop er ty 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 

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, ag reeab ly 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. 


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. 


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 

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 

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 passen g e r 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. 

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 

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 

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- p i w i ui i n i 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 ae wwuita . 

Wsnnffo OB Hmmnaagv Wwam. kaf bb Subjbcv op Fobubt nawfegen- 
endly ba or pvrport to be the aet el another, or it 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 iiBaton ie at 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 

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 

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 
There mnsi thn^rft he a noDoait. 

When Kmnwii m a m}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. 


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 

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 

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 

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 

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 

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. 

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. 





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 


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. 


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 c f ediUn - 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. 




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 

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 

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 

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.) 


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 Pn of MOT 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- 

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 

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 

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 

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. 


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 proper ty 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, 
iii c sp e oU ve 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. 

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 pr o perty destroyed is its value at the time of 
destruction, with interest: Hermiis qf 8L AmguaUm ▼. Cfo mn t ^ ^ 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 j tep re a entati ve 
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.] 


WHXN InJUiUED IN Attbuftiho TO LxAVX Oab on seeing a train ap- 
proaching at soch a speed that a collision was inevitable. 


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 

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 

/. 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 
Judgment affirmed. 

IvjuBT nr AmMPmio 10 Bkuts Iimui Bi iT 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 oo ns e q neness; 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 B u»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 

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- 

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 

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. JB dtoji y f» 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* 

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. 


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^ 

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 

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 

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 

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 
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. 


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 

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 


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 

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 

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 

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 


▼- 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. 


to their^ responsibifitiesf rights, and poveoB: Muxrag v. Biak^fardf 19 Anu 

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* 

LaW' of r ANamu Stazk is Frbsdmed to be the 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' 
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 
proper ty 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 repre s en t^ 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 


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 

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, 

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- 

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 

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- 


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- 

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 
Judgment reversed, and that of the justice's court affirmed. 


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 ca s es 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 

Inquibt ok Collatxral avd Ibiublbtaiit Matter iob Pubposs or Di&* 


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, 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 poss es s i on 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 

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 

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 

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 

'' 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. 


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- 

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 

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 


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. 


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. 


[82 NSW TOBK, 671.1 

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 
b f i i ^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 U a u mo u E 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- 

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 

Campbell, J., delivered a dissenting opinion. 


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. 


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. 


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 

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. 


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 

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 

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 

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 

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 


PETXNOT 07: See Werelv ▼• Penona, 84 Am. Dec. 346, and note 348. 


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 

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, 

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. 

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& 

Pbiob V. Lyons Bank. 

[88 Kbw York, K.\ 


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- 

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 

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