Skip to main content

Full text of "The American Decisions: Containing All the Cases of General Value and ..."

See other formats


Google 



This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project 

to make the world's books discoverable online. 

It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject 

to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books 

are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover. 

Marks, notations and other maiginalia present in the original volume will appear in this file - a reminder of this book's long journey from the 

publisher to a library and finally to you. 

Usage guidelines 

Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the 
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing tliis resource, we liave taken steps to 
prevent abuse by commercial parties, including placing technical restrictions on automated querying. 
We also ask that you: 

+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for 
personal, non-commercial purposes. 

+ Refrain fivm automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine 
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the 
use of public domain materials for these purposes and may be able to help. 

+ Maintain attributionTht GoogXt "watermark" you see on each file is essential for in forming people about this project and helping them find 
additional materials through Google Book Search. Please do not remove it. 

+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just 
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other 
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of 
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner 
anywhere in the world. Copyright infringement liabili^ can be quite severe. 

About Google Book Search 

Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers 
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web 

at |http: //books .google .com/I 



THE 



AMERICAN Decisions 



OOHTAIKINO TBJI 



CASES OF GENERAL VALUE AND AUTHOBITT 



t 

PKBDBD ni 



The Courts of the Several States 



nOM THB BABLIB8T I8SUB OF THB 8TATB BBPOBn 10 

THB TBAA 1809. 



Bt a. 0. FBEEMAN, 



or *'TBBAXnB OH «■■ Ii4' 

n « 



Vol. XXXVI. 






AAK KRAiraiSOOi 

BANCROFT- T7HITNEY CO. 

Ii4W mBUSBBBB ASTf ia.W T»»"ga»Tf,»«1W. 

188& 



' ^ • / e / 

«'UL29f942 



•oeoidtog to Ad of Oongwui, fai tbm y—r 
Bt A. L. BAHGBOFT A OOMPAHT. 
la tte Oflka of tlie Ubiftriiu of 0(manM» •! WMbfaigMk. 



• V 



« w 



American Decisions. 



VOL. XXXVL 



The cases re-reported in this Yolame will be fomid 
origiiially reported in Ihe following State Reports: 

lBBniij:.'8 N. OiaauMk Bq. Bnon. -YdL 1. 18A0. 

QmoBspQBn. YdLlOL 1840-1841. 

WATTflr Piannn.TAHU Bnon. • - •Yob. 9, 10. 1840. 

Whabioh'b PmnrasLTAXU Bnon. - -Y0L8. 1840. 

Bhodb IsLAicD BiPOBn. YoLl. 1840-1846. 

HoMuiabh'b S. OiBOLnu Law BiPOBn. - YoL 1. 1840-1841. 

HdMuLuar'B S. OiBOLnu Eq. Bnon. • YoL 1. 1840. 

HinfFHBSTB*TKinnanaiBnaBnL • - -YoL 2. 1840. 

YEBararr BxpoBiB. Yd. 13. 1889-1840. 

LnoH'B YmoiHiiL Boons. • • • • -YdL 11. 1840. 

AlaWAH A BSPOBTB. ...-•• -Yol8.2,S. 1841. 

AxKAHBAB Bbpobsb. YoL 8. 1840-1841. 

CoHaxonDcrr Boons. YoL 14. 1841-1842. 

Sgaioioh'b Illdtou Boosts. • - • -YoL 8. 1841 

Buuskvobd'b Xhmaiu Bdobib. - - -YokuS^e. 1841. 

B. Mohbos'b EjarruoKT BoosxB. - - -Yols.1,2. 1841. 

Louisiaxa Boosts. Yols. 17, 18, 19. 1841. 

BoBOfaoH'B LomiAXA Bivom. • - - YoL 1. 1841. 

MAmBBPOBSs. Yols. 18, 19. 1840-1841. 



American Decisions 

VOL. XXXVL 



CASES REPORTED. 



Aldrieh t. Jimtt Aaliif0<2/yWiiitff...l2 Vermoiit. 390 

Andflmm T. FUImt Framd.c(mtoeya$ict.. 1 MoMnllan'sBq. 200 

AtUntoiMT.ADMi Jury trial 12Vannoiit. 861 

B^-=^*»« { &;2s:;?' } «wi»rt« ^ 

2tg^<AVi\itAftaf^^^N\xMtmA,.No^ 188 

BumwBirT. Magimth ObtitnusUcnqfwag., 1 MoMolUn'sLftW 254 

BentleyT. Beynolda Slander 1 McMnllftn'sLftW 251 

Bigelow T. Hartford Bridge Go. .^utMfiee 14 Conneoticnt 502 

Buhops ▼. McNaxy JokU eonirador$ . . . 2 K Monroe 592 

BlackmoreT. Gregg. PrivUy 10 Watts 171 

Blood ▼• Sups Qwmtum meruU. . . 12 Vermont 863 

Brinagar T. Phillipe Swreiy 1 B. Monroe 575 

"ftlit'^S^J.^. \<^o-*-^ 2B-M<»-~. M7 

BiownT.Long OredUor'shiU llredell'sEq 43 

Brown ▼. MoKinney... Adveree po9Be9non, , Watts 139 

Bnmer ▼. ManloTe Pa;^tandpre'emp*n, 8 Soammon 551 

Baekner T. Watt C(n\fiiaqfktto§ ...A^homaaiuk 671 

^K^lLoT*"^'^*^'^ 19Loi,i«ana. 667 

OunpT. Camp MUrepreBaiiaHom, . 2 Alabama. 423 

Can- V. WnUams Corrtetinff d^d 10 Ohio 87 

GarskaddenT. Pooimaa Evidence, lOWatts 145 

Carter V. Bradley Indorsement 19 Maine 735 

Chamberlain ▼. Wilson Privilege qfwitnee$,A2YeTmoBt. 356 

Charchman v. Smith Bookso/entry 6 Wharton. 211 

(Sty of Lonisrille ▼. Hyatt MunidpcUeorpor*n$ 2 K Monroa 594 

Collett ▼. Jones Sxemption 2 B. Monroe 586 

Collins ▼. Smith BevivcUqfetaiuie.,. 6Wharton. 228 

Cook v. Field Oamiskment 3 AUh^wML. 43$ 

Crocker ▼. Monrose. Pledges 18 Lonisiana 660 

CDmberlandVal.R.B.Co.T.Baah.C;ontr(ic«f OWatts/ 132 



6 Cases Reported. 



Horehead ▼. Jaoai Libel 2 B. Moaioe 600 

Morris v. Erans Surety 2 B. Monroe 501 

^'^^%^'^^' ^^"'^""^ j ^a««*>« ISLoQiaiaiui 024 

Mnnaon V. Hastings Promise qfmarf^ge,l2YeTmont 946 

Murray v. S. C. Railroad Oo NegUgenee 1 MoMnUan'sLaw 268 

Muse T. Donelson IfewpromUe 2 Humphreys. .. . 800 



Nash v. Skinner Ifkioreemenl 12 Vermont 338 

NasonT. Blaisdell Judgmeni 12Vermont 831 

""^RSaL^i^g^ ^ 

Newall V. Hussey | ^^^'''^^^I^^OL^ }l8 Maine 717 

K^ichols T. Patten Sale^ aUaehimeiU. ..lOMsine 713 

^iohols ▼. Reynolds ReoordaUon...... . 1 Rhode lalaiid... 288 

North Csoal Straet Road Repeal 10 Watts 186 

Oriental Bank T. Freeee, i20tnMp0e<ifl»faioi^.. 18 Maine 701 

Osgood ▼. Davis Parol seidenee..... 18 Maine '•... 708 

Ptdmery. York Bank...l ..iceioii /or /loioi^. 18 Maine 710 

ParkT. Bates Warranty 12Vezmant. 847 

Patterson ▼. Lanning PartUicn lOWatts 154 

Perkins' Lessee v. DibUe Mortgage 10 Ohio 97 

Perrin ▼. Eeene PartnerMp 19 Maine 759 

Peters v. Allison and FergaBon..JQMme9i< IK Monioe. .... 574 

Petty T. Hannum JokU dtfendaU. ... 2 Hunphr^ya. . . . 803 

^oirtk*"^ "^ ^""^ ^^^ ^'lobiyonrtiow 14 Oonneotioat. . . . 402 

^^^^'^'^^^^^^ )^o^^^ OWharton. 202 

*>hilbrick T. Preble AvKurde lOMaine 718 

Phillips T. Gregg Coii/IMc/fawe.... 10 Watts. 158 

''^t^^'^^^-'^]'-'^'--^-**'**''^*^'^ 760 

Pitts y. Mower PrindpalamdageintM Maine 727 

Planters' Bank ▼. White Not^ 2 Hnmphreya.. . . . 806 

Pomeroy ▼. Lambeth ImprovemaUe 1 Iredell's Bq. ... 88 

Power y. Ooean Lisoranoe Oo. . . ./iMuronce 19 Tjonisiana 666 

Proctor y. Ferebee Decreee 1 Iredell's Bq.... 84 

Putnam y. Grymes Holder 1 MoMullan'sLaw 260 

Qninny.Qieen IiUerpUader, 1 Iredell's Bq.... 46 

Ratclifif y. Bridger PvhUekmde 1 Robinson 683 

Rhodesy. City of Gleyelaad CoiTorote ZsaMtt^..lO Ohio 82 

^'tS^^toS^ • "^^^ ""• ^^'''' t ^«*^ 17Louisiami 613 



^^SX^'in^^SToo^^ i^^^^^ m 

Roes y. Fuller Appotntm/enU 12 Vermont 843 



CUais Bkfobixdl 



BmhDt. lkviflr.»..««»««.»«»«.Ail0Sy6ate*»«.».18Loii]fliaiift 802 

Bnill T, Pyhad Wagen ^. 2Hamphi«fi.... 907 



Snndfln T. JohDMO. Sfaiider 6 Bltokfoid. . . . . . 664 

Seymour T. WatMB PMiekmi$ 5 Blaekfovd. . . . . . 666 

Slucldef Old T. Waid Wagen SAlibanift 436 

Simpson T. Hud Cbnln6Vofyii^iiM. 6WliMion 281 

Smith ▼. BunM Jmron 8Soammoa 616 

Spmilding t. ChMnhfiia Jmttke'§fiidgmaU.. 12 Ymaaat, 868 

Steqrr.lfoH Wagen 10 Maine 766 

StetoT.Bfaiw •• QuowMrnmio ZAxkasomm 468 

Stefeev.HaRii • QuowMrnmio 8 ArVinii 460 

Stefee T. HbdgikiBi Marriage lOlCune 742 

StetoT.Hni^ OrimUiaiJaw 2A]ftlMyna 411 

SteteT. Jones /nrficftwewf— Jfay^y 1 MeMoUan'elAW 267 

Stele T.Marler ImaaUg 2 Alshemn. 888 

SteieT. WHbor Oriminailaw 1 Bhode Idand . . 246 

Stete Beak of HUbois T. AkiIhi.IHvmM note 8Soaamion 636 

Storena t. Beeoh Inipeach'i^wlktm,li Vermont. 860 

Soflfolk Bank T. Kidder StaMe$ 12 Vermont 864 

Smnner T. Stttto Chrim iaal Um 6BlAekf(»d 661 

Sweet T. Jenkini U9age 1 Bhode Ldand . . 242 

Swift T. Holdxidge ^...jnraadalmUgraatm^lO CUdo 86 

Thompaon T. ThonpaoB EtJoppti lOlCaino 761 

"^t^SuMfi- ''''''^}0^>rP0n'i^ n Leigh 874 

ThkeyT. Smith Siaif§ ISliaIno 704 

lyierT. State .MttetmaU 2Hunphn^.. .. 208 

Va^makiik ▼. Hartfovd ^^lAmkmmad MOomiaotlovt.... 478 

WateT.Ptmtt Shaifk. 1 BoUnaon 681 

Wall T. ffill*a Haifa mghiqftHinf IB. Monroe 678 

WaraT. Bradford Sherds dted 2Akbamn 427 

Wataony.Ona^ OomUer/eUhOU.... IB. Monroe 672 

Wataon T. Cfaragg {^^l^^^J^SSf^}^^'^'^ ^^® 

Weakly T. BeU and Starilog NtgotiabUhuinmi*s 9WMb 116 

Weeka ▼. Fatten iSZee^'n and eifOfppeZ. 18 Mabe 696 

WelohT. Clark Ooienancg 12Vermont 868 

Wheeling Ina. Go. t. MoRlMn.../fuiiroiiee 11 Leigh. 385 

WhitingT. Steto IndktOiaU 14 Conneotioat. . . . 409 

Whitniqr ▼. Mnnroo OanUikmmU lOMabe 732 

WUaon T. Hooper Cfton^c/lNMKMioii. 12 Vermont. 866 

Wright T. Qnier Trovar/orwood... OWatta 106 

Toomn r. F6Dj JfoMoufproaeeiirn 1 B. Monroe 



CASES CITED 



AhrtT. atoa... 

Abbot T. FMm. ••••••••< 

Abbott T. OonmoiiwwMtli* 

AbnkbamT. 

Adams T. 



♦« ••••• 




120 
318 
186 
289 
451 

Adams T. Bobimon 116 

Adams' Leaaee V. Tomer 07 

Adamson t. Smith 72 

iEtoa Fire Ins. Co. ▼. l^ler •••• 881 
AffUfWY, Bank of Qettyebug.. 485 

Agra Bank, jKvoorte 195 

AlabamA ft Fla.&.KT. Waller.. 279 

Albreohi T. Walker 632 

Albro Y. Agawam Oaaal Oo 287 

AldenY. Qrove 176 

Alderman ▼. French . . .56& 660» 603 
Aldridgo T. Tnacnmbia B. B. Co. 704 

Alexander ▼. Chreennp 535 

Alfred T. State 

Algier t. Steamer Maria 

Al&AT.Beal 

Allen T.Boord 

ABen ▼. Haniaon 

ABen ▼. Heam 808, 

AI1<m y. l/Taawfag ••••••••• 

Allen T. Meggoire 734 

ABen T. Mwdianta* Bank 624 

AUenv.Pray 600 

ABen ▼. Ssyward 753 

Allen T. Trunble 548,706, 706 

AUenr. Young 765 

AUie V. SchmitB 39 

AUisv.Moore 72 

Altemoe V. CampbeU 201 

Anderson ▼. Layton 72 

Andrew T. Dieterioh 663 

Angel V. McLeUan 540 

Anderaen V. State 407, 530, 633 

Anthony v. Sterens 569 

Anthony V. Weeeel 706 

App V. Dreisbach 107 

Apple ▼. Allen 60 

Appleton V. Donaldson 224 

Arberry ▼. Noland 581 

Arlington ▼. Hinds 728 

; 523 
Annisted v. Commonwealth 



522 
529 
77 
510 
433 
457 
317 



Armstrong v. MoCoy 

Arnold's case • . 

Arnold Y. Soott 



i...-| 



528 
533 
98 
400 
107 



Arnold T. State 7M, 747 

Amoos T. LeaaMier 887 

Arthnrr. Bodunhan.... 488 

Asbnry Life Ins. Co. t. Wamn.. 638 

Atkinson T. Allen 888 

AtlantioBankT.MeEohanti'Btak 194 

Atlantic Bank T. SaYcry 198 

Attoiney-geoendY.BauroadOoai- 

paniea 510 

Attorney-general T. SteYcna 886 

Attwaterr. Townsend 866 

Anboohon y. MoKnight 769 

Austin V.Ben 298 

Austin Y. Boetwiok 811 

Austin Y. WbitkMk 614 

Ayres Y. Husted 492 

Babcook Y. nompaoii 767 

Backus Y.HoCkiy 98; 94 

BaoonY.Qmy 69 

BadeY.Staxk^ 726 

Bsil^ Y. Foster 714 

Bailey y. Byder 



Bailey y. Taylor 838 

BairdY.Baird's Heirs 166 

Bairdv.BUnd 69 

BakerY.Brign 842 

Baker v.Clmd 89 

Bakerv. HoweU 109, 800 

BakerY. State 683 

Balbo Y. Perale 680, 638 

Baldwin V. Munn 94 

BaUY.Bulhud 71 

BallY.Claflin 760 

Ball V. DunsterYille 613 

BaUY. Slack 145 

Balstcm Y. Baxter.... ■ 122 

Baltimore & Ohio B. B. Co 280 

Baltimore Turnpike. Caae of ... . 204 

Bancroft y. Lynnfield 84 

Bankv. Jacobs 226^ 226 

Bonk Y. Schaumberg 189 

Bank v. Tiddy 58 

Bank of Alei^andria v. Dver 460 

Bank of America y. McNeil. . . . 198 
Bank of Auburn v. Weed 495 

{127 
771 
Bank of Conunonwealth v. Mc- 

Chord 769 

Bank of Elizabeth Y. Ayrea 126 



10 



Cases Cited. 



PASS 

Bank of Mancheiter v. Allen. . . . 4d4 
Bank of Michisan v. Williams . . 495 
Bank of New Milford v. Town of 

NewMilford IM 

Bank of MontpeUer v. Dixon. . . . 592 
Bank of Pennsylvania v. Potins . 126 
Bank of Pennsylvania v. Beed. . 198 
Bank of Pittsburgh v. Whitehead 195 
Bankof St. Albans v.Oilliland.. 224 
Bank of St. Mary's v. Mumford. 198 
Bank of Tennessee v. Beatty . . . . 706 
Bankof United States v.Davia.. 197 
Bankof United States y.Lane. 127, 771 

Bank of Utica v. Bender 127 

Bank of Virginia v. Craig ... 189, 194 
Bank of Utica v.Smalley 494, 495, 499 

Barclay v. Rnasel 55 

Barker v. Mar. Ins. Ck> 676, 758 

Barlow v. Bell 34 

Barlow v. Congregational Soc. . . 758 

Barnard v. Pope 166 

Barnes v. Trenton Gas light Co. 192 

Bamett ▼. Shackleford 90 

Barney ▼. Chittenden 39 

Bamig y. Peirce 116 

Barrett V. Thomdike 754 

Barringer v. Sneed 311 

Barron v. Baltimore 129 

Barrow v. Porter 476 

Barrows v. Lane 339 

Barrows y. Navee 78 

Barter y. Commonwealth.... 129, 268 

Barthy. State.. .^ 501 

Barton y. Williams 369 

Bartonshill Coal Co. v. McGnire. 279 
Bartonshill Coal Co. y. Beid . . . . 279 

Bassett y. Baasett 77 

Bassett v. Salisbury Mfg. Co 510 

Bathgate, In re 317 

Battle y. Bering 88, 583 

Baudin y. Boliff 145, 333 

Bauleoy.N.Y.&H.B.B.Ca286, 287 

Baumgard y. Mayor 84 

Baxtery. People 523, 524 

Bay y. Coddington 224 

Bayard y. Smith 711 

Bay ler y . Commonwealth 224 

Beach v. Packard 354 

Beal V. Park Ins. Co 199 

Beall V. Darden 60 

Beardsley y. Southmayd 73 

Beatty v. Beatty 817, 318 

Beaufort v. Berty 394 

Beaulieu v. Portland Co 284 

Beck v. Burdett 293 

Beckf ord y. Wade 725 

Bedell V. Constable 396 

Bedford y. Deakin 123 

Beebe v. Steel 343 

Beebe v. Swartwout 352 

Beebee y. Robert 728 

Needle y. Morris 233 

Beekman y. Saratoga etc R. R. 
Co 144,211, 385 



Belly. Lamprey...... 75 

Bell y. Laynian 472 

BeU y. Morrison 310 

Bell v. Parker 757 

Bcllingall y. Duncan. . . .543, 705^ 706 

Bellingham*s case 400, 404 

Belotey. Wynne 310 

Beltzhoover y. Blackstock. . . 126, 224 
Bend y. Susquehanna Bridge Co. 82 

Benham y. Bishop 298 

Bennet v. Holt 102 

Bennett v. Baker 534 

Bennett y. N. B. & M. Ins. Co. . 199 

Bennett v. Williamson 68 

Bennock y. Whipple 108 

Bensell y. Chancellor 580 

Benson y. Benson 60 

Berea Stone Co. y. Kraft 289 

Berlin y. State 410 

Bholen y. Cleveland 477 

Bickley y. Hickman 123 

Bigelow y. Hartford Bridge Co. . 510 

Bigelow y. Kinney 298 

Bigelow y. Wilson 717 

BiU v. Fourth Great Western 

Turnpike B 495 

Billings y. Hall 145 

Bird's case 750 

Bird v. Clark 115 

Bird y. Commonwealth 750 

Bird v. Smith 145 

Birdy. Ward 664, 681 

Birely's Ex'rs y. Staley 45 

Birmingham y. Kirwan 698 

Birty. Barlow 748 

Bishop y. Holcomb 474^ 476 

Bishop y. Little 105 

Bishop v. Sanford 73 

Black v. State 622, 627, 628, 534 

Blackburn y. State 407 

Blackmore y. GlamorgamJiire 

Canal Navigation 509 

Blackmore y. Gregg. . . . 166, 171, 176 

Blade V. Noland 354 

Blague y. Gold 452 

Bl^dell y. CoweU 717 

Blake y. Howe 103 

Blake v. Jones 182 

Blake y. Maine Central B.R..286, 287 

Blake v. Millspaugh 516, 533 

Blakey.Shaw 705 

Blanchard y. Baker 338 

Blaxtony. Pye 727 

Bleakney v. Farmers' and Me- 
chanics' Bank 704 

Bledsoe y. Stokes 72 

Blodgett y. Utley 76 

Bloodgood y. Mohawk R. B..210, 704 

Bloxam v. Hubbard 589 

Blue v. Kebby 360, 765 

Blunt y. Snedston 67 

Blyholder v. Gilson 182 

Blythe V. Hill 122 

Boardman y. Wo6d d61« 63S 



Cases Cited. 



11 



pAoa 

Boardnuufi v. Woodmaa 409 

Boatner ▼. YentrasB 636, 681 

Boftzv.NaU 705 

Bodwell y. Swan 568 

Bogert V. Vennilya 78 

Boldt V. N. Y. O. JBL E. Oo 279 

Bolton V. Hamilton 166, 171 

Bolton Y. Harrod 126 

Bonaparte v. Camden ft Amboy 

RCo 485 

Bond V. Padelford 705 

Bondy.State 410 

Bondorant v. Boford 543 

Boner y. Jnner 65 

BonesY. Booth 727 

Boofter V. Booen 318 

Booker y. Bell 352 

Boon y. Commonirealth 530 

Boony.State 522 

Boorman y. Jenkins 245 

Booth y. Bamnm 242 

Booth y. Boston ft Albany R. R. 289 

Bory.Bor 697 

Borland y. O'Neal 572 

Borrekina y. Bevan 150 

Boeanqnet Y. Anderaon 118 

BoeanquetY. Dndman 222 

Boston ft B. M. Corp. y. New- 
man 385 

BosweU Y. Commonwealth 410 

Boswell Y. State 407 

BottY. Bnmell 453 

Bonghton y. Carter 481 

Boofton Y. Crowther 128 

Bourland y. HOdxeth 651 

BoYard y. State 407 

Bower Y. Henshaw 73 

Boydy. Barday 613 

Boyd y.Chesapeak etc Canal Co.. 197 

Boyle V. People 532 

Boeeman y. Browning 68 

Brabbits y. Chicago ft N. W. B. 289 

Brackett y. Moonfort 768 

Bradford y. Manly 709 

BraggB y. Dyer 318 

Brakeaeldy. State 524 

Branch Bank at HontsYiUe y. 

Steele ,.... 198 

Bnindnp y. St Paul Ins. Co 199 

Braon v. C. E. I. ft P. R. R. Co. 289 

Bree y. Holbeck 105 

Bricker y. Bricker 95 

Brickner y. N. T. C. R. R. Co. . 284 
Bridgeport Bank y. New York 

etc. Co 190, 199 

Bridge y. Wellington 450 

Bridges y. Moye 45 

Brig Draco, Case of 731 

Brifly. Stiles 552 

Brink y. Merchants' Ins. Co 199 

Brinkley y. State 407 

Britain y. Qniett. 46 

British Cast Plate Mannfoctorers 
y.Meredith 486 



Bronson y. Adams 78 

Bronson y. Iliiladelphia 210 

Brooks y. Moody 93 

Brothers y. Cartter 286 

Brown y. Beayer 318 

Brown v. Berkeley 727 

Brown v dftldwAll J ^^^» ^^^» ^^^ 

urown V. oaiaweu. . . | j^g^ ^OO, 202 

Browny.Commonwealth.407, 523, 530 

Bro¥ni y. Cousens 71 

Brown v. Crawford 69 

Brown y. Delafield 78 

Brown v. Desmond 39 

Brown v. IKrsinger 181 

Brown y. Maxwell 279 

Brown y. MerridL 78 

Browny.MiUer 430 

Bro¥ni y. Richardson 672 

Brown y. Rollis. 76 

Bro¥m V. Shand 318 

Brown y. State 531, 747 

Brown Y. Tilden 318 

Browning Y. Springfie^ 723 

Broa's appeal 216 

Brace y. Caldwell 202 

Brace y. Holden 716, 737 

Braner y. Manloye 536 

Brash y. Scribner 87,224, 305 

Bryan y. Hinman 78 

Boohanan y. State 746 

Buckler y. Battiyant 222 

Buck Mountain Coal Co. y. Le- 
high C. ft Nav. Co 510 

Bucuiam y. Thomnson 74 

Buffiogton y. Gerisn 151 

Bulger Y. Roche 73 

BulEffdy.BeU 767 

Bulwer'sease Il5 

Bunny. Riker 308, 458 

Burbridge,^|x»te 198 

Burgess y. Wheate 55, 56, 60 

Burky. State 525 

Burlinsame v. Bell 734 

Burlock y. Taylor 475 

Bums y. Sutherland 213 

Burr's case 518 

Burry. Smith 63 

Burrell y. Jones 758 

Burroughs y. Bloomer 76 

Burroughs y. Housatonio R. Ca . 488 

Bush V. Brainard 659 

Bush y. Royal Exchange Assnr- 

anceCo 669 

Bustard's case 156, 351 

Butler y. Buckingham 89 

Butler y. Howe 78 

Butler y. Maynard 583 

Butler and Baker's case 698 

Byam y. Bobbins 718 

Byers V. McCUmahan 512 

Byrd y. Byrd 78 

Byron v. N. Y. State Printing 

Tel. Co 284 

BythalY. Harris 67 



12 



Cases Cited. 



WAmm 

Cady V. Shepherd ^ 606 

Cain ▼. Fnrlow 70 

Caldwell ▼. Brown 284 

CaldweU V. Carrington 89 

Caldwell ▼. Eneas 667 

Calhoun ▼. Cook 171 

Callan V. Qayloid 226, 226 

Calloway ▼. Middlefeon 669 

Cameron ▼. Smith 71 

Cameron ▼. State 747 

Campbell ▼. Bailer 340 

Campbell T. Day 476 

Campbell ▼. McArthnr 838 

Campbell ▼. Merohanta* Ins. Co. 199 

Campball ▼. White 76 

Canoemi ▼. People 627 

Cannon ▼. Hemphill 89 

Capenv. WilHm 256 

Card Y. Wallaoe 63 

Caie Va EaUte Aot^ /» f« 198 

Curgen ▼. People 631 

Carfo T. Bangor and PiaoaAaqola 

C.ftB.B.db 279 

Carlos T. Brook 762 

Carmiohasl t, Tmstsssof Sohool 

Lands 495 

C. ft A. R. R. Co. Y. Mozphqr. . 287 

Carr Y. Bobertaon 293 

Carrington Y. Brenta 89 

Carrington Y. Smith 714 

Carroll Y. Minnesota VaLB^B.. 289 

CaiBly Y. White 285, 237 

CartierY. P*ge 855 

Carver y. Johnson 752 

Garviok Y. VickeiY. 301 

Castnor y. Wakod 71 

Cast Plate li^. Co. y. Msradith. 128 

Castle Y. Torre 317 

CatawissaR. B. Co. y. Armstrong 289 

CattiBon Y. Gattison 213 

Cayf Old's case 743^ 747 

Cayle'scase 233 

Cayxer Y. Taylor 286 

C. C. ft L C. B. W. Go. Y. 

Troeseh 284» 285 

Central Nat. Bank Y. Levin 194 

Chaffee y. Baptist Wmu ConY. . . 319 

Cbamplin Y. TilleY 494 

Chapman Y. Erie ILB. Go 285 

Chardon Y. Oliphant 760 

Charles Biver Bridge y. Warren 

Bridge 378 

Charters Y. Bell 118, 119 

Chase'soase 43, 103 

Chaudron y. Hnnt 354 

Cheeveley y. Bond 72 

Cheshiro v. Barrett 228 

Chesav. Chees '. 765 

Chestnut v. Shane's Lessee 90 

Chestnat Hill T. Ca v. Batter. . 84 
Chicago ft Alton R. R. Co. y. 

Murphy 279 

Chicago ft N. W. R. R. Co. v. 

Swett 282, 288 



Chioago eto. R. R. Co. Y. Baker. 145 
Chicago eta R.R. Co. Y.Smith.. 631 

Chichester Y. Lethfaridge 606 

Choneqoa y. Mason 460 

Chnrch Y. Hnbbart 161 

Choroh Y. Mar. Ina. Co 676 

Churchman y. Smith 213 

Cincinnati y. Penny 85 

Cincinnati y. White'a Lessee, 648, 654 

City of Dayton Y. Pease 84 

City of Leziogton y. McQaiUan's 

Heirs 696^ 607 

City of Louisville y. ^ratt 551 

Clapp Y. O^rrell 731 

Ckri Y.Brown 669 

Clark Y.Clark 704 

Clark Y.Flint 87 

Clark Y.Pntt 705 

CUu-k Y. Bossel 154 

Clark Y. Sawyer « 706 

Clark Y. Saybrook 610 

CkrkY.TraU 71, 72 

ClarkcY. Bankof Mlssisiippi... 73 

Clarke Y. Hohnes 287 

Clay Y.Miller 77, 78 

Clazton Y. State 823 

Clem Y. State 628, 629 

Clerk Y. Withers 705 

Clerks' Savings Bank Y. Thomaa. 197 
CleveUmd etc. R. R. Co. y. Speer 210 

Qoake v. Hooper 348 

Oodfelter V. Odk 475 

Ckxe'aease 626^629, 532 

Cluck Y. State 628 

C. ft N. W. R. R. Co. Y. Jackson 286 

Cochrsn v. Van Surlay 551 

CoddingtouY. Bay 224, 805 

Coffin Y. Coffin 320 

Coganv.Ebden 620 

Cohen v. Charleston T. ft M. L 

Co 677 

Cohen Y. Wright/ 704 

ColcY. Jessnp 74 

Coleman v. Cocke 87, 182 

Coleman v. Henderson 305 

Coleman Y. Hutchinson 166 

Coleman v. Southwiok 609 

Coleman y. Walker 68 

ColUer Y. Steinhart 287 

Collins Y. Loftus 60 

Collins Y. Martin 220 

ColUsY. Waddy 105 

CoUisterv. Hafley 74 

ColtY.Ives 492 

Columbus ft Ind. Cent. B. R. Co. 287 

Colwell V. Woods 43, 102 

Combs Y. Shrewsbury Mut. F^ 

Ins. Co 199 

Commercial Bank v. Cunninghwn 192 

Commissioners v. Wood 129 

Commissioners of Canal Fund v. 

Perry 80 

Commonwealth v. Abbott 531 

Commonwealth v. Austin 531 



Cases Cited. 



13 



CommoiiwiMlth y. Bnnell 632 

GonmiaiiWMlth t. CharleBtown. . 84 

GomnKniwoalth y. Claup 601 

Coouiianwealth Y. EHUand 303 

GonmioawiBalth y. Erie eto. K K 210 
CommofnwealifaY.EuiiMr'sBMik. 661 
Cominonwealth y. Fisher. . . .207, 200 

Commonwealth Y. Haskell 408 

Gommoawealth y. HQL 629 

Commonwealth y. Hite 821 

Commonwealth y. Holt 740 

Commonwealth Y. Hooper 601 

Commonwealth y. Jaekaon • .746b 747 

( 616 

Commonwealth Y.KDapp -( 624 

t 669 

Commonwealth y. LenoK 630 

Commonwealth y. McGowan .... 107 

Commonwealth Y. Moaler 407 

Commonwealth y, M1Irtag^ 747 

Commonwealth Y. Harero&A 760 

Commonwealth Y. Odlin 601 

Commonwealth y. Bobj 413 

Commonwealth y. Bogpn . . .4l07» 410 

Commonwealth y. Searle 210 

Commonwealth Y. Woelper 608 

ComqnaY. Mann 73 

Como^ Y. Atlantio Ina. Co. .780^ 731 

Conoord Y. Molhtiro 494 

CoogarY. Chicago eto.B. Co.... 180 

Conner Y. Henctenon 149 

ComkoUy y. Pdlon 284 

Conrad y. Atlantio Ina. Co 494 

Gonro y. Port Henry Iron Co. . . . 198 

Conroy Y. Wanen 126 

Contract Corporation, In ft 193 

CookY. Berkley 669 

CookY.Darby 106 

CookY.HnU 838 

Cook Y. linda^ 70 

CookY. Palmer 720 

CookY. Wood...'. 68 

Coomba y. Jordan 667 

CoonY.Bowlea 726 

Coon tr. Syraenae ft Utica B. B. 

Co 279 

CooperY. Chitty 706 

Cooper Y. Usher 676 

Cooper Y. Lindo 118 

Looper Y. MiiwanKee at irxaine an 

ChienlUCo 280, 287 

Cooper Y. Sheriff ol London .... 47 

Co^r Y. State 630 

Cooper Y. Wilcox 677 

Cooper Y. WiUiama 388 

CopMY. Eddins 68 

Core ▼. D. L. & W. R. B. Co . . . 286 

Coming Y. White 46 

Corpe Y. Overton 329 

Cort v. Delaware Ina. Co. 670 

Cotton Y. Thnrland 756 

Cotton V. Westoot 725 

Coach Y. Conch 68 

CoYelyY. Fox 126 



Cowles V. Donlop »^ • • . . 220 

Cox Y.Bethany., 607 

Coxy. Blanden 108 

Coylea V. Higghia 706 

Crafts. Jaekaon Co 610 

Craig Y. Brown US 

Crane Y.Hardy 706 

Crawford Y. State 634 

Crawford Y. Taylor 292 

Crawford v. Village of Debwmre 84 

Crest Y. Jack 34 

Crinpen Y. People 632 

C. B. L ftp. B. B. Y. Doyle.... 286 
C. B. L ft P. B. B. Co. Y. Henry 288 

Critohlow Y. Pany 11» 

Crooker Y. Arey 73 

Crocker v. dementa 74 

Crooker y. Crane 126 

Crockett Y.Laahbrook 676 

Cromwell y. Chromaden 461 

Cromwell Y. Tate'a Ex'r 614 

Crook Y. Glenn 6S 

Crooker Y. Bragg ••••• 337 

Crosby Y. Long 862 

Crosby Y. Wyatt 76 

Crody Y. Chaae 766 

Croa& Y. Carrier. 492 

Cronoh v. Fowle 94 

Crowder Y. Tinkler 606 

Crowell Y. Bebee 141 

Crnger y. Armstrong 128 

Col&r Y. Motier 70 

Camber y. Wane. 122 

Comberland Bank Y. Hall. 768 

Comberland ft Pa. B. B. Co. y. 

State 289 

Camberland Valley B. B. Co.'8 

AppeaL 610 

Camimings y. Kennedy 862 

Carley Y. Hanis 289 

Canen v. Crawford 212 

CarryY. State 629 

Catler Y. Cochran 604 

Catler Y. Wright 74 

Dabney y. Green. 48 

Damon'acase 746 

Dana v. Tacker 620 

Daniel V.Day 68» 78 

Daniel y. Stevena 39 

Daniels v. Daniels 369 

Daniels V. Waiard 476 

Danville Bridge Co. y. Pomroy. . 199 

DamaJl V. Aduns 68 

Davenport v. Sovil 90 

Davenport v. Yoang 651 

Davis' Estate 126, 718 

Davis V. Barton 614 

Davis V. Cain 59 

Davis V. Calvert 717 

Da\ns V. Detroit ft Milwaukee B. 

B.CO 287 

Davis Y. Haydon 512 

Davia Y. Hanter 632 



14 



Cases Cited. 



Dayis v. ^iinor 704 

Davis v. Parker 39 

DaTiav. Buff 264, 669 

Davia V. Walker 531 

Davis V. Yale 72 

Dawaon v. Shepherd 44 

Dayv.Leal 122 

Dean V. Qridley 745 

Dearlev. Hall 474, 476 

De Annas ▼. New Qrleaoa 648 

Deoonohe ▼. Savetier 60, 166 

Delavergne V. Norris 93, 94 

Delaware etc. Canal Go. r. Mo* 

Keen 210 

DemorestT.Wynkoqp 726 

Deming v. Cairington 338 

De Mott V. Hageiiman 202 

Denv. Black 78 

Denv. Clark 580 

Den y. Dosproanx. , 102 

Denv. Wright 838 

Dennv. White 420 

Denny v. Smith 78 

Denslow v. New Haven ft N. Co. 487 

Denton v. McKenxie 166 

Depean v. WaddSngton 305 

Depeyster v. Goald. 166 

Depne v. Place 227 

Deeilver, Matter of 580 

De Sobry v. De Laistre 366 

Devany v. Vulcan Iron Works. . 289 

Devecmon v. Dm uumaii,^^ 318 

Dewy. MoDevitt 531 

Deweyy.Pet 724 

Dick V. Pitchford 59 

Dickey V. Armstrong 67, 77 

Didier V. Davidson 76 

Dillon V. Parker 697 

Dillon V. U.P. R. R 287 

Dimmickv. Lockwood 93 

Dixv.Cobb 477 

Dixon V. Vale 357 

Dixon V. Warters 39, 40 

Dobbin v. Richmond ft Danville 

R.R.CO 289 

Dobree V. Eastwood 120 

Doddington's case 453 

Dodson V. Cocke 535 

Doe y. Barksdale 65 

Doev.Bird 169 

Doe V. Donston 705 

Doey. Fenn 66 

Doe V. Jones 72 

Doe v. Pearson 66 

Doe v. Read 66 

Doe ex dem. Gilliam v. Jayoocks. 69 

Doe d. Wright y. Manifold 320 

Dokery. Goflf 317 

Donaldson v. MissiBBippi ft Mo. 

R.R.CO 289 

Doolittle v. Blakesley 78 

Doolittle y. Bryan 703 

Doolittle V. Sup. of Broome Co. . 510 
Doiman v. Lane 551 



Dorsey, Matter of 443 

Donght7'B case 452 

Doaglass v. Tonsey 669 

Douthitt v. Stinson 73 

Dovev, State 407 

^Dover v. Portamoath Bridge .... 510 

T)owell y. Webber 78 

Downs v. Qnarles 757 

Dowtie's case 453 

Drayton ads. Moore 274, 275 

Drew y. Drew 74 

Drinkwater v. Drinkwater 715 

Dmmmond V. Richards 100 

Drary v. Shumway 349 

Dnboia v. Campan 171 

Duchess of Kingston's case { ^^^' ^ 

Dufour y. Comfrano 101, 334 

Dugon v. Gittings 78 

Duggen y. McGruder 210 

Duncan v. Dodd 418 

Duncan v. Jaudon 198 

Dunham y.Dey 43 

Dunham v. Sa^ 71 

Dupleiz v. De Roven 469 

Dupy y. Wickwire 551 

Durell y. Mosher -( J|J ^^ 

Dntchess Cotton Man. Co. v. 

Davis 80, 495 

Dutton y. Kendrick 758 

Dyer v. Jones 864 

Eager v. Atlas Ins. Co 245 

Earl of Buckinghamdiire v. 

Drury 725 

Earl of March v. Pigot 214 

Earl of Ripon v. Hobart 508 

Eason v. State 630 

Easterwood v. Qnin 669 

East India Co. v. Vincent 34 

Eaton y. Bell 758 

Eckert v. St. Louis Transfer 

Co 626, 529 

Eckford v. Evans 69 

Eddyy.Traver 592 

Edgerton v. Wachter 76 

Edmestou y. Lyde 4-5 

Edmond y. Caldwell 728 

Edrington y. Harper 43, 102 

Edwaras y. Pope 551 

Edwards v. Tipton 766 

Edwards y. McKee. 354 

Edwards v. Ross 73 

Edwards y. University 60 

Elkin v. People 643, 705 

Elledge v. Todd 534 

ElUott y. Fair Haven etc R. R. . 488 

Elliott v. Maxwell 43 

Ellis v. Wheeler 767 

Elmendorf v. Carmichael 621 

Ellsworth v. Brewer 119 

EUden v. Elsden 318 

Emerson v. Providenoe Hat Co.. 689 



Cases Cited. 



15 



Biiicvioii T» W^Qflon 

BmlTT. Lye 

Epe^oaae 

Erskine v. M 



.626, 



Enkine v. Townsend 
Esdaile y. Sowerby . . 

Eftia r. BawlinB 

Eoropeaii Bank, In re 

Evaiw V. Aflhley 

Evans y. BickneU. . . . 
Bvana v. Commonwealth 
Evans Y. DniimnoiMl . . . . 

Evans y. Duberry 

Evans y. Gray 

Evans Y. Smith 

Everett y. Bank of U. 8. 
Everett y. UDited States 
Ey«eT. Shaftsbniy 



• ■••■•••• 



KbrigBB Y. Mostyn 

FSactora ete. Ca v. Marine D^ 

Dock etc Ga 188, 

Fahnestock v. State . . .627, 628, 
Fairolaim v. Shaokleton . . . .109, 
Fairfield eto. Savings Bank v. 

Chaee 191, 

Fall River Bank v. Startevant. . 
Falls Village Water Power Co. v. 

Tibbets 

Fannin t. Anderson 

Farley y. Cleveland 

Fftrmer y. Rand 

Farmers' etc. Bank v. Eye 

Fanners' eto. Bank v. Fkyne. . . . 
Fanners' Bank v. Beynolds 

Farmers' Bank v. WhitehiU.. | 

Farr y. Sims 

Farrell Foundry v. Bart 

Fsrrow y. I>iaL 

Farwell v. Boston & Worcester 

B.K.C0 279, 

Faolkner v. Brockenbrongh 

Faulkner v. Delaware & Earitan 

Canal Co 

Faulkner y. Erie R. Co 279, 

Fayaoax v. Pratber 

Fazakerly v. Wiltshire 

Feam y. Shirley 69, 

Feather y. Stronoecker 

Feike v. Boston & Albany B. B. . 

Fellows' case 

Feltham v. £higland 

Ferebee y. Proctor 

Ferguson v. Kennedy 

Ferris v. Horshea 

Fetterman v. Murphy 

Fight v. State 

Fike V. Clark 

Finch*s case 

Findley v. State 661, 

First Mass. T. Corp. v. Field 

First Nat. B'k v. Gifford 

First Nat. Bank v. Reed 



718 

aoi 

626 

73 

43 

120 

73 

192 

706 

106 

90 

124 

310 

672 

766 

766 

677 

893 

114 

196 
632 
179 

197 
198 

610 
77 
331 
768 
132 
197 
637 
226 
226 
186 
197 
263 

280 
100 

73 
284 

68 
444 

70 
158 
286 
411 
287 

35 
180 
352 

87 
415 

73 
451 
663 
107 
192 
194 



PAoa 
First Nat B'k oi Uightstown v. 

Christopher. 192, 196, 198 

Fish V. Jaiskman 736 

Fisher v. Evans. 421 

Fisher v. Fisher. 75 

Fisher v. Phelps. . • 74 

Fisher v. Proeser 179 

FUhkill Savings Inst. Y. Bost- 

wick 194 

Fitch v. Baldwin 754 

Fitzhughv. Croghan 352 

Flaggv. Mann 764 

Flauagan v. People 407 

Fleckner v. B'k of United States 198 

Fleming v. Marine Ins. Co 671 

Fleming v. Slocnm 635 

Fletcherv. Peck 479 

Fletcher V. People 323 

Flickey v. Loney 476 

FlintY.Day 339 

Flyut v. Hatchett 70 

Foley V. Oowgill 709 

Folger v. Chase 766 

Foote Y. Colvin 166 

Forbes V. Foot 72 

Ford V. Babcock 74, 76 

Ford V. Fothetgill 297 

Ford V. Grey.. 179, 456 

Foreman V. Wikoff 127 

Forester V. Guard 520 

Fomshill v. Murray 166 

Forsythe V. Ellis 385, 721 

Foster's case 264 

Foster v. Blackstone 476 

Foster v. Cockerell 474 

Foster v. Fuller 758 

Foster v. Minnesota Cent. B. Co. 287 

Foster V. Mix 476 

Fowler v. Hunt 76 

Fowler v. Williams 160, 151 

Fox Y. Hefiner. 182 

Fox V. Sandford 280 

Foxv. Smith 413 

Foxv. Widgery 755 

Foxwist v. Tremaine 725 

Francis Lamb, In re 316 

Franklin Bank v. Pa. D. & M. S. 

N.Co 411 

Franklin Glass Co. v. Alexander. 82 

Frazier v. Pa. B. R. Co 287 

Frazier v. State 628 

Free v. Hawkins 119 

Freeman v. Freeman 182 

Freeman v. People 525, 626, 534 

French v. Smith 361 

Fridge v. State 298 

FriecUey v. Hamilton 102, 138 

Friery v. People 631 

Fries v. Bmgler 858, 411 

Frierson v. Gaskins 318 

Frink v. Lawrence 510 

Friswell v. Moore 316 

Frost V. Reynolds 45 

Frowman v. Smith 680 



16 



Cases Citjcd. 



TAxm 

Fry T.Cook 473 

Fiuler ▼. Jewefet 289 

Fnllerton ▼. Sohaofbr 192 

Foltony. Stnart - 94 

Fnlton Bank ▼. New York eto. 

OuMlGo. 188»196b 198 

Falwood'scMO 825 

Fankv. Ely 218 

Funk ▼. Yoodda 94 

Gaith T. EobARb 75 

Gftley. Lewis 198 

Gallagher V. Boberfei 121 

Galpin Y. Hard 428 

Ganiiden, In the gooda d 821 

Gardner ▼. Bnokbee 489 

Gardner y. Newbnzgh 885, 484 

Gardner V. Ogden 89 

Garland y.Br^ 585 

Gatrardy.PittBlmxgheto.B.B.Go. 224 

GanettT.Doe 108 

Gartland v. Toledo efeo. B. B. Co. 282 

Garwood T. Dennis 147 

Gaa light Bank V. Hnttall 685 

GaMY.Stinaon 764 

Gfttea Y. Chreen 96 

Gfttea V. People 582 

Gayoao Sayiiun Inst. y. FellowB. 477 
General Ina. Co. y. United States 

Ins. Co 197, 198 

Gentry y. Hntchoraft 145 

Gerard y. Dickenson 258 

Gerard Y. La Costs 251 

German Y. Gftbbald 182 

Gibbes Y. Mitchell 705 

Gibson y. Paoifio R. R. Co 280 

GUbert Y. Bnlkley 94 

Gilbert Y. Stone 488 

Gillaspie Y. Osbom 166 

Gillis Y. Martin 48, 102 

Gillow Y. Bourne 818 

GillshannonY. Stony Brook R.B. 288 

Gilman y. Cntts 75 

Gilman Y. Lowell 569 

Girard Y. Taggart 728 

Gist Y. Lybxind 127 

Gitt Y.Watson 88 

Gleises y. F^nrie 607 

G. & N. W. R. R. Co. Y. Moranda 288 
Goicoechea y. La. State Ins. Co. . 670 
Gold Mining Co. y. National 

Bank 524, 526 

Goode Y. Ebrrison 328 

Goodfellow Y. Boston eta R. R. . 289 

Goodloe Y. Cincinnati 88, 84, 129 

Goodloe Y. Godley 189 

Goodman Y. €k>omnan 317 

GoodspeedY. East Haddam Bank. 488 

Goodwin's Trial 413 

Goodwin y. Blachley 528 

Gorgerat y. MoCarty 119, 126 

Gormly v. Volcan Iron Works. . 289 
Goshen Tnmpike Co. y. Hnrtin. 80 
Goshom Y. Poroell *'.. 90 



Gosling Y. Wartmrton... 698 

GottsY.Cbik 540 

Googh Y. Findon • dli^ 

Goninlook y. Mannfaotnysw* Lm. 

Co 199 

Goold Y. Bobson 124 

Grace y. Hale 329 

Graham y. Coomionwealth 75 

Granbery Y. Mhoon 60 

Granger Y. George 108 

GraYss y. Merry 811 

Gray y. Holdship 557 

Gray Y. Jenks 100 

Gray y. MoCanoe 555 

Gray Y. MoCreary Ill 

Gray y. People 525 

Gray Y. Roberts 757 

Gray Y. Trapnall 78 

Grear Y. Backfield 765 

GreaalYY. Codling 507 

Great Weetem R. Y. Wbeelsr. . . 191 
Green y. Borough of Reading. • • 129 

Green y. Johnson 588 

Green y. Merchants' Lia. Go. • • . 195 

Green Y. Skipworth 816 

Green y. Spencer 847 

Greenfield Y. People ffiM» 528 

Greenleaf y. Qniney 811 

Greenley Y. State 532 

Greeno y. Mnnson 575 

Greffin y. Lopes ,. 611 

Gregg V. James 801 

Gregg Y. Matlock 75 

GreggY.Sayre 685 

Grim Y. PhiUips 88^ 3» 

Gn£EB Y. Sellars 586 

Grimstone Y. Carter 138 

Grissom*s esse 580 

Grissom y. State 527 

Griswold V. Butler 71 

Gnetig Y. State tttt, 529 

Guitean's case 407, 410 

GulickY. Loder 866 

Guphill V. Isbell 166 

Hacker v. Eyerett 76 

Hackett Y. GloYor 848 

HackettY. Kendall 75 

HaoanY. Campbell 146^ 658 

Hames y. O'Omner 182 

Haley. Henrie 709 

Hale y. Lawrenoe 73 

Hally. Ashley 242 

Hall y. Bank of CommoBwealtb . 769 

Hall Y. Brooks 827 

Hall V. Dean 98 

Hall y. Franklin Ins. Co 675 

Hally.Little 78, 460 

Hall y. Mathias 80,166, 171 

Hall y. Nasmith 75 

HallY.Sprigg 166 

Hall y. Vt. FMass. R. R. Co. . . 73 

Hally. Wyboum 72 

Hallett y. Collins 160 



Oases Cited. 



IT 



OiUofwaj T. Book 433 

HftDoweUT. Bftyliss 87 

Ham*a cms 743, 747 

Hamy.Ham 753 

Hamaker v. Eberlev 154 

UAinblettv. Hamblett 699 

HamiltOD ▼. Galander'a Bz'n 122 

Hammond, In the gooda of 321 

Hampton y. 8peokena|^ 145 

Handa v. SUuey 297 

Hanford V. Fitch 70 

Hanger V. Abbott 74 

Hanaon t. Backnar 94 

Harbiaon t. Laman 48^ 102 

Hftrd ▼. Vennont &Caoad»S. R. 279 

Hardeman ▼. Sima 77 

Harden Y. Falmer 74 

Harding y. Alden 106 

Hardy y. Garolin* Gent. B'y Go. 286 

Hardy y. Sommen 656 

Hazgrayey. Bank of HI 495 

Harkay. Harlan 116, 202 

Harlan y. Seaton 77 

Herman y. Harmaa 746 

Harper y. Indianraolia ft St. Ik R. 

E.C0 284 

HarreUy. KeUy 106, 106 

Harrer y. Walhier 71 

Harrington y. Sixth School Biat'ot 200 

Harria y. Bedford 817 

Harriay. liarria 60 

HarrialmxgBank y. Tyler 198 

Ibamaofa^^x parte 198 

Harriaon y. Lemon 580 

Harriaon y. Biazwdl 102 

Harriaon y. WiImq 581 

Harty.BolIer 121 

Hart y. Farmera' Bank 191 

Harty.Oregg 171 

Hartfield y. Koper 2M, 659 

Haryey y. Ashiey 725 

Haryey y. Thomaa 145 

Haryey y. Vamey 717 

HMkiny.K.Y.C.ILR.Oo 282 

Haa8y.PhiladelphiftftS.M.S.Co. 289 

Haatinga y. Lane 702 

Hatch y. Crawford 513 

Hatch y. Hatch 333 

Hatch y. Spofford 73 

Hathom y. Stinaon 144 

Hawea y. Leader 715 

Hawkea y. Orton 348 

Hawkea y. Salter 120 

Hawkina y. Hatton 420 

Hawkina y. Bntt 120 

Hawley y. James 39 

Hayden y. Smithyille Mfg. Go. . . 282 

Hayes y. Western R. IL(S>. .279, 282 

Haynes y. Jones 68 

Hay ward y. Leonard 364 

Hayward y. National Ins. Go 199 

Heath v. Commonwealth 531 

Heath y. Hubbanl 369 

Heatherly y. Weston 65 

DaaYoi^ZZXn-a 



Heaton y. Tryberger 716 

Hemmenway y. Stone 767 

Hemmenway v. Wheeler. . . .492, 738 

Hemphill y. Teyis 132 

Hencnman y. Attorney-general . . 55 

Hender y. Rose 697 

Henderson y. Mayor etc. of New 

Orleans 627, 628, 646, 650, 656 

Hendrickson y. Qaeen Ins. Go. . . 109 

Henman y. Dickinson 768 

Henriqnes y. Dutch West India 

Co 485 

Henry, Nx partt 818 

Henry y. Carson 68» 69 

Henry y. Doctor 89 

Henry y. Pittsburgh eto. Go. . . . 210 

Henry y. Stewart 77 

Henryy. Welch 654^680, 681 

Hepbom y. Carta 704 

Heme, Inrt 318 

Herriok y. Carman 889 

Herrick T. Whitney 672 

Hessy.State 501 

Hethenngton y. Kemp 12(1 

Heydon y. Heydon 871 

HiDemiaTompkey.HeDdenon. 184 

Hickman y. Cantiell 102 

Hickoz y. City of Cleyeland 88 

HiUy.BeU 818 

Hilly. BeUows 76 

Hilly.Ely 842 

Hilly.Martin 126 

Hilly. Warren 232 

Hilly. West 100 

Hills y. Bannister 758 

Hillsy. EUot 182 

Hilton y. Fkirdoogh 120 

Hinchman y. Paterson H. R. R. 510 

Hindmanh y. Charlton 821 

Hinsdale y. Bank of Orange. . . • 537 

Hippy.State 560 

Hitchcock y. Harrington 99 

Hobyy. Hoby 816 

Hockenbary y. Snyder 166 

Hodges V. ArmstrongN 44 

Hodgkina v. Eastern R. R. Go. . 287 

Hoe's case 825 

Hoffy. Baldwin 126 

Hoffinan y. Carow 668 

Hoffinan y. Strohecker 87 

Hofiman v. Stii^ens 38 

Hofnagle y. N. Y. C. & H. R. R. 

R. Co 287 

Hogan V. C. P. R. R 276 

Hoge y. Hoge 182 

Hoit V.Hodge 216 

Hoke y. Henderson 551, 600 

Holdeny. N.Y etc. Bsnk 194 

Holder y. Taylor 348 

Hollingsworth v. McDonald .... 90 
Hollister y. Union Go . .483, 486, 487 

Hollister v. Goodale 490, 738 

Holmes v. Blogg 328, 329 

Hohnes y. D'Camp 854 



18 



Cases Cited. 



PAOB 

HolzDflfl V. Doane 864 

Holmes v. Mdndoe 707 

Holt V. People 025, 634 

Holtv. Ward 725 

Hoinerv. Fish 106, 107 

Homer V. WalliB 227 

Homesv.Smith 126 

Homes v. Smyth 718 

Hopkins V. Lee 350 

Hopps V. People 400 

Horah v. Long 40 

Hornblower v. Proud 220 

Horsford v. Wright 04 

Hoemer v. HL Cent. B. R. Co. . . 270 

Hotchkiss ▼. Lothrop 601 

Housatonic Bank v. Siartin 190 

Hoafleal'scase 261, 26% 263, 264 

Houseman t. Giranl etc Associ- 
ation 190, 191 

Hovenden v. Annesley 106 

Howard T. Mitchell 373 

Howell V. Richards 350 

Howerton V. State 624 

Howes V. Birch 122 

Howk y. Minnick 107 

Howson V. Hancock 756 

Hoy y. Sterrett 338 

Hudgins V. State 633 

Hudson y. Reel 213 

Hudspeth y. Wilson 116, 757 

Hughes T. Cairo 531 

Huioy. Bailey 126 

Hull V. Connolly 297 

Hullv.Wyboum 72 

Humphreys y. Ocean Ins. Co. . . . 670 

Hunt y. Adams 339 

Hunt y. Chicago & K. W. R. R. 

Co 290 

Hunt y. Hnnt 322 

Hunt V. Jennings 249 

Hunt y. Peako 297 

Hunt V. Pennsylvania R. R. Co. . 289 

Huntv. Silk 149 

Hunter v. Hempstead 126 

Huntington y. Huntington 317 

Humes y. Mayor of KnoxvUle. . . 210 
Humphrey y. Hartford Fire Ins. 

Co 199 

Humphreys y. State 410 

Hurd V.Robinson 103 

Hutchins v. Kimmel 751 

Hutchins y. Olcutt 718 

Hutchinson y. Johnston 583 

Hutchinson v. Mains 55? 

Hutchinson v. Sandt 580 

Hutchinson v. York N. A; B. R*y 279 

Hutton V. Frisbie 554 

Hyatty.Wood 201 

Hyde y. Baldwin 699 

Hyde V.Stone 472 

Illinois Cent. R. R. Co. T. Jewell 286 
IlliDois Cent. R R Go. y. Welch 286 
Uotty.Qenge 320 



Indianapolis k Cin. R. R. Go. t. 

Loye 284, 287 

Ingalls y. Brooks 362 

Ingraham y. Bowie 76 

Ingram ▼. Croft 607 

Innis V. Steamer Senator 237 

Ireland y. Kipp 770 

Lishy.Smith 144 

Irvin y. Turnpike Co 92, 135 

Irwin y. Susquehanna etc. Tom- 
pike 134 

Irwin ▼. DizioD 510 

Isaacs y. Steel 552 

Ives y. Ives 201 

lyeson y. Moore 606 

Jackman y. Rin^land 182 

Jackson y. Bairmger 461, 452 

Jackson y. Carver 455 

Jackson v. Cator 34 

Jackson v. dark 452 

Jackson y. Collins 706 

f 523 
Jackson y. Commonwealth. • • . -{ 628 

i 629 

Jackson v. Cnllum 146 

Jackson v. Davis 100 

Jackson y. Fitzsimmons 621 

Jackson v. Gardner 451 

Jackson v. Hart 536 

Jackson y. Hoffman 753 

Jackson v. Hubble 461 

Jackson v. Johnson 78, 242, 683 

Jackson y. King. . .148, 636, 679, 580 

Jackson v. Lawton 535 

Jackson v. Loomis 34 

Jackson ▼. Mass. M. F. Co 667 

Jackson v. Matsdorf 166 

Jackson v. McConnell 141 

Jackson y. Miller 166, 182 

Jackson v. Moore 68» 166, 451 

Jackson v. Murray 752 

Jackson y. Peny 65^ 67 

Jackson v. Plumbe 495 

Jackson y. Ramsay 132 

Jackson y. Sample 66 

Jackson v. Sharp 188, 242 

Jackson v. Shephard 103 

Jackson y. Stevens 752 

Jackson v. Whitbeck 166 

Jackson v. Wilkinson 452 

Jackson v. Willard. 09 

Jackson ex dem. Ludlow v. Myers 450 
Jackson ex dem. Troupe v. Blodg- 

ett 450 

James Taylor, In re 316 

James v. Morey 138 

Jamison v. Beaubien 552 

Janes y. Richard 607 

Jaouish V. Town of Ithaca 200 

Jeffrey v. Ficklin 436 

Jennings, Ex parte 210, 385 

Jennings v. Pa. Ins; Co 732 

Johnv.State 52S 



Cases Cited. 



19 



Johns V. BkewBfcer 837 

JohiiMm's oaae 204 

J<riiiiaoa T. Ball 683 

Johnson v. Boston 288 

Johnson ▼. OanUdns 847 

Johnson t. Duke of Marborongh. 768 

Johnson t. Pattenon. 347 

Johnson t. SmaUwood 640 

Johnston ▼. QUncy 665 

Johnston ▼. Irwin Ill 

Jones V. Atherton 683 

Jones T. Gloogh 434 

Jones V. Granite Mills 200 

Jones ▼. Hardestj 709 

JonesT. Kea 318 

Jones V. People 627 

Jones V. Peny 84» 661 

Jones T. Planten'Bsnk 108 

Jones T. Beeves 70 

Jones V. So¥ier 806, 809 

Jones ▼. State 632 

JonesT. Westoott 126 

Jordan v. Jordan.- 107 

Jordan ▼• MoKende 77 

Jordan v. Thornton 78 

Jonidan T. Barrett 680 

Jndahv. Dyott 107 

Jodahv. Jndd .474^ 476 

Jnmperta v. People 228 

Jnniata Bank T.Brown 212 

Kanev. Bloodgood 60 

Kanev. McCown 707 

Kansas Padfio R. R. t. Salmon. 288 

Blase ▼. John 161 

Eeasy v. Obr of Loafsville. .129, 600 

Keeoan v. Western B« B. Go. . . . 286 

KeiUey t. Belcher S. M. Go 279 

Kellogg T. Bobmaon 94 

KeUyv. Paris 343 

Kendall T. Rnasell 245 

Kenedy's Heirs t. Duncan 67 

Keniston V. Friskobaldi 725 

Kennebeck Porchase t. Gall .... 494 

Kennedy t. Bmice 66 

Kennedy y. Duncan 77 

Kenny y. Glarkson 732 

Kibbyv.Chitwood'sAdmVJ ^^ ^ 

Kibby Y. Backer. 748 

Kidney y. Coaasnutker 697 

Kielleyv. Belcher a M. Go..... 287 

Kilby Y. Haffdn 681 

Kilheffer Y. Herr 373 

KiUianY.Watt 69 

Killick, In the floods of 320 

Kilp»triok Y. Means 45 

Kinimel Y. KinuneL 768, 764 

Kinderley y. Jenris 476 

KingY.Bell 88, 39 

Kinf; Y. Boston ft Woroester B. 

B. Co 282, 284 

KingY. Harman 356 

King Y. Jones 360 



KingY. Kerr 352 

Eling Y. Kerr*ii Adm^rs 94 

KingY. Tifiany 337 

King Y. Walker 72 

Kirby Y. SisBon 353 

Kirk Y. Baldwin 676 

Kirkham y. Oxley 666 

Kirkham y. Sharp 208 

Kirkpatrick v. Mmrfaead 224 

Kirtiand y. Snow 492 

Kisler Y. Kisler 166, 181 

Kittredge y. Emerson 862 

Kline y. UAmorenz 298 

Ejiapp Y. Parker. 339 

Knight Y. Knight 60 

Knowlton Y. &rtlett 720 

Koltenbrock y. Graoraft 69 

Kriel y. GommonwealUi 407 

Kroer Y. People 632 

Kroy Y. C. K.I. &P. B.B 287 

Lacaossade y. White 756 

Lackland Y. Snuth 75 

Lacy Yk Bnhler 682 

Lacy Y. Williams* Hein 69 

Ladd Y. Jackson 68 

La Faige F. Ins. Co. y. Bell .... 192 

Lafonde Y. Haddock 73 

La FromboiB y. Jackson 683 

LahifTe y. Smart 77 

LalorY.C. B.& Q. B.B. 284 

Lambert, In the goods of 321 

Lambert Y. Bessey 482 

Lambert Y. Pack 119 

Lambom y. Watson 535 

LamkinY. Babb 316 

L*Amoreax y. Crosby. *. 680 

L'Amoreax y. Vandenborgh 87 

Lane y. Dorman 661, 600 

Lane y. Maine F. Ins. Co 391 

Lane y. Marine Mat^ F. Ins. Co. 667 
Lane y. Nat. Bank of Metropolis. 76 

Langdon Y. Doad 74 

Langdon y. Potter 494 

Langdon y. Bowlston 64, 65 

LangfordY. Pitt 433, 434 

Langtry y. State 747, 760 

Lanuig Y. K. T. C. B. B.286, 286, 287 

Lansing Y. Gains 311 

Lapice y. Smith 166 

Larkin Y. Bank of Montgomery.. 575 

Lamed y^ Baffinton 668, 569, 603 

Lathop Y. Snellbaker 107 

Lawler y. Androscoggin B. B. Co. 287 

Lawrence Y. Ballon 73 

Lawrence v. Bice . . . .^ 705 

LawBon y. LoYejoy 298 

Layton v. State 70 

Leach y. People 525, 634 

Leader y. Moxton 129 

LeeY.State 625 

Leffinwell y. Elliott 93 

Leggett V. N. J. M. & B. Co 766 

Lehigh B. Co. y. Lehif^ G ftK. Co 499 



20 



Cases Cited. 



PASS 

Leioester V. Veatch 507 

Loioeeter v. Walter. 666 

Leidig v. Rawson 586 

Lemon V. Craddock 5i3, 706 

Lenheim v. Wilmaiding 224 

Lent V. Pintard 75 

Leonard Y. Vredenboigh 331 

Leroy ▼. Johnson 301 

Leahey v. Gardner 706 

Leeseps t. Pontchartrain R. Ck>. . 659 

Leeter ▼. White's Heirs 552 

Letcher ▼. Bates 769 

Levy y. Cadet 311 

Lewis y. Osmpbell 350 

Lewis y. Bank of Kentoeky 103 

Lewis y. Lewis. dl7» 319 

Lewis y. Littlflfield 756 

TiBTington etc. Bank y. Qoyim . . 610 
Lexington eto. R. R» Co. y. Apple- 

mte 144,210, 211 

L'&Qille y. Wood 316 

Linodln y. Norton 72 

Little y. Blnnt 73 

Little y. CommonwMlth 626 

Litaey.Cook 830 

Litttor T. People 643 

Liyingston y. Coltunbiaii Lu. Co. 676 
Liyingston y. Mayor of K. Y*. . • 386 

Liyingston y. Nsfwkiric 433 

Lbydy. Carter 182 

Lloyd y. Maddox 362 

Lloydy.State 631 

LoUy y. Qildart 122 

Looko y. Coleman 132 

Lockhart y. Liohtenthalsr 237 

Lodge y. Fstterson 166,160, 170 

Lodge y. niipher 225 

Lofland y. Ewiur 643, 706 

Lohman y. Peopb 626 

Long y. Colboxn 758 

Long y. Long 701 

Lonsdale y. Brown 110 

Loomis y. Eagle Bank of Boc h aa 

ter 192 

Lwd y. Bagelow •.... 373 

Lord y. Ocean Bank 224 

Lord Loyelaoe's case.... •• 613 

LotY. Thomas 94 

Lomsiana State Bank y.Senecal-f j^ 

LonisYille y. Kashyille R. R. Co. 

y.Fflbem 286 

Love v. Hiarvey 216 

Loyelace y. Cockett 122 

Lovell V. Howell 281 

Loyeridge y. Cooper 474» 476 

Lowenbeig y. People 531 

Lowry v. Cady 738 

Lncas y. Bank of Darien 197 

Lacas y. Wasson 372 

Lndlow v. Simond 613 

Lndwell v. Newman 348 

Latterford y. Le Mayre 122 

Lycoming F. Ins. Co. y. Ward . . 626 



Lyman v. White Rivor Bridge Co. 84 

Lynch v. Commonwealth 410 

Lynch v. Postlewaite 356 

Lynde v. East 29t^ 

Lyne v. Bank of Kentadky 192 

Lyon y. Barferam 151 

Machir v. May 6S 

Mackie y. Caarns 283. 

Madison & Ind. R. R. Co. y. 

Baooy •. 279 

Mad River h LakeErie R. R. C^ 

y. Barber 287 

Mahon y. Davidson 286 

Maior y. State 630 

Malone v. Hathaway 287 

MaUoy y. Mallett 6a 

Malpica y. McKown 856 

Manbyy.Soott 297 

Manhood y. Crick 122^ 

Mann y. Glover 626 

Mann y. Moors 422 

Mann v. Pearson 462* 

Manville v. deveknd 4 Toledo 

R.R.CO 284, 28a 

Maples y. Maples 291 

Marotmk y. Canldwell 63^ 

Markland y. Cramp 362 

Markle y. Hat6eld 67^ 

Marple v. Myers 61^ 

Marseilles etc. Co., In ft 193 

Marshall y. Colombia M.IiM. Co. 199> 

Marshall V. Schricker 287 

Marsteller v. MoQcan. ... 66, 67, 77 

Martin v. Bigelow 837 

Martin v. Dwelly 80, 90 

Martin y. Mayo 288 

Martin V. State 632 

Martin y. Wilbonnie 102 

Mary Norwood's case 748> 

Mason v. Donman 8ia 

Masonv.HiU 837 

Mason v. Wait 661 

Massie y. Watts 461 

Master Wardens v. Ml 444 

Masterman v. Maberly 816 

Masters V. Dunn 7a 

Mathery.TrinilyChQioh. | }^ ^ 

Matheraon y. Davis 69 

May y. Bennett 77 

May y. Bnokeye Mat. Ins. Co. . . ]99> 

May V. Slaoffhter 68 

Maynard v. Beardsley 603 

Maynard v. Crick 122 

Mayor etc. of Lvnne Regis 49a 

Mayor v. Randolph 129 

McAllister v. Hoffinan 757 

McAlpin v. WoodraflF 96 

McAndrews v. Bams 288 

McCall y. McCall 88 

McCallister y. Hoffinan 458 

McCarty v. Emlin 441 

MoCarty y. MoPherson 694 



Cases Cited. 



21 



Modnng V. Beime 592 

Moaore V. Golbam 758 

McClaig V. Lecky 293 

McComasv. Covenant oto.Ina.Oa 531 
McComb V. Town Council of 

Akron 84 

McCorkleV.'JBinnV.V.V.V.V.ZZs' 227 

McCalluxn v. Gourlay 756 

MoCone ▼. Qommonwealth 526 

McDennottv. Pacilio R. R. .279, 281 

McDonald v. Hazeltine 280 

McDonald V. McGuiiB 70 

McDcmaia V. Walton 107 

McDonoosh v. Loughlin 319 

McDowell V. Yonng 100 

MoQee t. Anderson 572 

MoQee ▼. OunpbeU 717 

McGngg ▼. State 523, 524 

MoQrew Y. Toolmin 421 

McGoin V. Kouna 102 

Mdntire V. OUtct 311 

Molntire ▼. Ward 90 

McKay V. Williama 45 

MoKenaie v. State 410 

MoKeon ▼. Caherty 756 

McKinneya v. Scott 430 

McEinnon t. Thompeon 433 

McLanghlin ▼• Spengkr 71 

McLean v. Bine roint Qravel M. 

Co 287 

McLean v. Jaokaon 60 

McLean v. McLean 318 

McLean ▼. Wilion 514 

McLemore v. Powell 576 

McMahon t. Davidson 280 

McMeekin v. Edmonds 291 

McMillan v. Union Lis. Co 671 

McMillen V. Lee 540 

McMillan v. Wood 73 

McNaghten's esse 406 

McNsSrv. Gilbert 353 

McNairy V. Bishop 503 

McNall V. McClon 531 

Mead V. Merritt 39 

Meadows v. Hopkins 575 

il90 
194 
195 

Mechanics' Bank V. Seton 196 

Medway \ . Needham 166 

Mellos V. Snowman 70 

Meroerv. Pittsburgh etc. B.It. Co. 210 
Merchants* Bank v. Birch. . .306, 307 
Merder v. Canonge 197 

Merrill v. Ithaca etc. K. B. Co. | ^jg 

Merrill v. Sherburne 551 

Merritt v. Brinkerhoff 337 

Methodist Church v. Kemington 63 
Methodist Epis. Ch. of Cincinnati 

V. Wood 494 

Metts V. Bright 242 

Meyer v. State 530 

Michanv. Wyatt 70 



FAOa 

Michigan Cent R. R. Co. v. Dolan 280 

MiddSton V. Spioer 55, 56 

Mifilin V. Bailioad Co 130 

Miles V. Berry 105, 106 

Miles V. Fletcher 675 

Miles V. United States 747, 749 

Miller V. Hackley 126 

Miller v. Illinois Central R R. 

Co 190, 195 

Miller v. Musselnuui 138 

MiUer V. Plumb 557 

Miller v. Tollison 291 

Miller v. Tyler 75 

Milner v. Davis 77 

Miner V. Cossat 705 

Miner v. People 746 

Miranda v. City Bank 771 

Mitchsl V. R^nolds 444 

Mitchell V. Walker 683 

Mitford V. Mitford 60 

MobUe Cotton Press & Building 

Co. V. Moore 430 

Moiesv. Bird 330, 342 

Monroe v. State 620, 533 

Moutaffue v. State 529 

MonteSore v. Montefiore. . . .314, 317 

Montesquien v. Heil 249 

Moutillet V. Bank of U. S 624 

Monumoi Great Beach v. Rogers. 494 

Moody y. Boweli 226^227, 430 

Mooersv. Wait 115 

Moore V. Armstrong 78 

Moore t. Butler 697 

Moore v. Calvert 77, 78 

Moore V. Carroll 73, 76 

Moore Y.Moors 63 

Moorev. Wallis 69 

Morgan v. Davis 100 

Morgan v. Livingston | ***^ 65o| 653 

Morgan y. Reed 77 

Morgan Y. Robinson 77 

Moif^an V. State 528, 746 

Morgan v. Stevenson 531, 534 

Morris V. Barry 65 

Morris y. Eves 672 

Morris V. Foreman 118, 126 

Morris v. Miller .746, 747, 748 

Morris v. Van Dorea . .' 455 

Morrison V. Norman 71 

Morse v. Bellows 257 

Morse v. Betton 706 

Moseleyv. Chamberlain 279 

Moees v. Jones 78 

Moees v. State 530 

Moss V. Johnson 279 

Moss V. Pacific R. R. Co 284 

Moughon Y. State 525 

Mower v. Leicester 84 

Mowrey v. Walsh 664 

Muir V. Schenck 477 

Mulholhm v. Voorhies 61 1 

Mullau V. PhiU. A S. M. S. Co.. 289 
Murdock v. Finney 477 



22 



Cases Citeix 



vAoa 
Murphy v. Boston and Albany R. 

R.Co 280 

Mnrphy ▼. Coralli 289 

Murphy y. Ottenheimar 640 

Mnrphyv.Stato 750 

Murphrey ▼. Wood 46 

Murray T. Carrie 289 

Murray v. Long 684 

Murray v. a C. £. B. Oo 280 

Musics V. People 632 

Myers ▼. Myers 640 

Nason V. Blaisdell 362 

Nathans ▼. Bingham 73 

National Bank v. Norton 128 

Nat Bank of St. Charles v. De 

Bemales 407 

National Security Bank ▼. Cosh- 
man 197 

Naylor V. Dennie 738 

N. &C. B.R.CO. ▼. Ounll.... 289 

Nealv. Lewis 669 

Ned V. State 418, 628 

Nelsonv.Clay 294 

Nelson y. Dubois 340 

Nelson Y. McQifiert 310 

Nelson y. Wheelock 690 

Newall y. Hussey 760 

Newell y. Maybwry 769 

New Bngland Car Spring Co. y. 

Union India Rubber Co. . . 198, 701 
New Hope etc. Co. y. Fhonnix 

Bank 198 

New London Bank y. Lee 46 

New London etc B. B. Co. y. 

Boston etc. R. R. Co 186 

Newman y. Beokwith 706^ 706 

Newman y. Foster 144 

Newton y. Bronson 89 

Newton y. Clark 321 

New York F. Ins. Co. y. Ely..497» 498 
New York etc. RRy.Sehnylar.. 199 

Niblack y. Goodman 76 

Nicholy.Bate 127 

Nichols y. O^tf of Boston 200 

Nicks y. Martmdale 78 

NicoU y. Huntington 463 

Niolon y. Douglas 293 

Noble y. McFarland 71 

Noble y. People 616 

Noblet y. Green 164 

Noey.Stato 629 

Nolandy. Ringgold 261 

Norcross' case 744 

Norfleet y. State 628 

Norris y. Badger 119 

Norris y. Staps 496 

NorthM.R.Co. y. Akeri 73 

North Riyer Bank y. Aymer. . . . 197 

Norton y. Doolittle 492 

Norton y. Roberts 676 

Norton y. Thompson 70 

Norrell y. Camm 635 

Vorwood's «a8e 747 



Norwich Gas Light Co. y. Nor- 
wich City Gas Co 610 

Norwood y. Gr3rpe 122 

Nott y. Douming 267, 311, 760 

Noyes y. Mordaunt 698 

Noyes y. Smith 284 

Nuttv. Nutt 318 

Nutting, i2^ixirte 194 

Nyoey. Oberts 94 

O^rien y. Norwich A; W. R. R 610 

O'Brien y. People 682 

O'Connelly. Strong 274 

O'Connor y. Pittsburgh 129, 210 

O'Connor y. Roberts 287 

O'Connor y. State 629 

Odiomey. CoUey 738 

O'Donnel y. Alleghany VaL R R. 288 

O'Fallon y. Boismean 144 

Officer y. Tonng 661 

Ogden y. New York Lu. Co.... 676 

Ogden y. Saunders 703 

Ogley. Stoto 631 

Omrray.Hall 709 

Ohio & M. R R. Co. y. Ham- 

menley 287 

Olcotty. TiogaR.R.Co 73 

Oldham y. Oldham 71 

Oliphant y. Chnrch 126 

Oliver y. Berry 71 

OUverHoudlet 297 

Olivier y. Townes 476 

Olneyy. Eaton 39 

O'Maiav. Commonwealth. | ^ ^ 

O'Neal y. Boone 76 

Ongy. Summer 71 

Ormond y. Holland 284 

Ortwein y. Common wealth. .467, 627 

Osborne y. Moos 716 

Osiander y. Oammonwealth 626 

Overbach y. Heennanoe 296 

Overton y. Campbell 636 

Oviatty. Sage 869 

Owenv. White 640 

Owings'oaae 679 

Oxley y. Mizle 44 

Packwood y. Walden 638 

Pa^e y. Webster 736 

Pamey. Drew 73 

Paisley y. ^Freeman 106 

PaJmery. Clarke 683 

Palmer y. Mulligan 837 

Palmer v. Potter 326 

Pannell v. Conmionwealth 410 

Parev. Mahone 73 

Parham Sewing Machine Co. y. 

Brock 760 

Parker y. Gordon 274, 276 

Parker v. Patrick 664 

Parkiaon v. Parkison 318 

Parks v. General Interest Assur- 
ance Co 387 



Gases Cited. 



23 



vAoa 

Pafsoni ▼. WellM 100 

FtettoiT. Smith 490 

FirttenoD y. Qaines 166 

FaiteEBon r. Hansel 68 

P^tton ▼. BIl of Soath CSsroliiia. G37 

Pkolmier ▼. Erie R. H. Ck> 286 

PftxoQ y. Pbnl 100 

Payney.Drew 581, 683 

Paynay. Piarker 90 

Peaceable y. Read 169, 179 

Pease y. Morgan 341 

Pecky. GaiT 319 

Peoky. mn 122 

Peeky. BaadaU 74 

P^iroe y. Oosan Lm. Ca 677 

Pellinany. Hart 477 

Pendeignst y. Foley 68 

Pendeigrast y. Onlktl 78 

Penley y. Waterhoase 75 

Penn y. Hayward 38, 39 

Penn y. Lord Baltunors 38, 39 

Peon's Groye and Comoord Boad, 

CSaseof 204 

Pennsylyania eto. Go. y. Dan- 

dridge 237 

Pents y. Btanton 758 

Penobscot Boom Goip. y. Lam- 
son 404^ 499 

People y. Adams 601 

People y. Albany 84 

People y. Allen 533 

Peopley. Bell 410 

People y. Boring 706» 706 

People y. Coffinan 407 

People y. Collins 600 

People y. Cottle 524 

People y. Edwards 524 

Peopley. Enoch 249 

People y. Faller 625 

People y. Oallaaher 145 

People y. Gnnnuig 300 

People y. Hayes 525, 530 

Peopley. Haynes 300 

People y. Honeyman 524 

People y. Johnson 530 

People y. Johnston 524, 526 

People y. Kelly 563 

People y. Klein 407 

People y. Kingston ft Middle- 
town T. Co 483 

Peoploy. King 523, 529 

People y. Labra 303 

People y. Livingston 703 

People y. Lohman 522, 533 

People y. Mallon 525, 526 

People y. Maloney 533 

P«m.u • M*fK«./fil«» 517, 522, 623 
Peopley. Mather jg^glggg^^^JJ ^^ 

Peopley. MoCaoley 529 

People y. MoCann 410 

People y. McDowell 407, 410 

People y. Miner 746 

People y. Newbeny 383 

People y. Perkins 413 



vAoa 

People y. Phippa. 363 

People y. Renasolaar ft & B. B. 468 
People y. Beynolds.523, 524, 525, 526 

People V. Stewart 532 

People y. Stent 523, 525 

People y. Vermilyea 516, 519 

People y. Wilson 410 

People's Lis. Co. v. Spenoer. .... 199 
People ex rtl, Tweed y. LiBoomb. 526 
Peqaawkett Bridge y. Mathes. . . 514 

Perrine y. Cheeseman 514 

Peny y. Jackson 64, 77 

Perry y. Simpson Waterproof 

Mfg. Co. 199 

Peters y. Qaxdere 604 

Peters y. Jones 78 

Peterson y. Navy Yard eto. B. B. 510 
Peterson y. Whitebrsasta ft M. 

Co 288, 287 

Petriev.CUtfk 220 

Pettijohnv. Beasley. 60 

Pettis y. Warren. 531 

Peyton y. Smith 704 

Phelpsv. People 526 

Phelps y. Sage 100 

PhiladelphiaLoan Co. y. Towner 498 

Philadelphia ft T. B. B. Co 488 

Philipeon y. Bates 145 

Phillfps y. Gregg 166, 171, 180 

PhiUipsv. Ives 216 

PhoBbe y. Bogeess. 318 

Pickering v. l^racombe B. Co. . . 475 

Pierce v. Bartmm. 444 

Pierce y. Crafts 767 

Piggott y. Bosh. 72 

Piffotv. Clark 119 

Pifiing y. Armitage 34 

Pingree V. Coffin 39 

Pintard v. Tackington 853, 354 

Pipher y. Lodge 178 

Pitman y. Maddox 212 

Pittman V. McClellaa 69 

Pittsburgh eta B. B. Co. y. Bnby 199 
Planter's Bank v. Bank of Alex- 
andria 78 

Plater y. Groome 318 

Piatt V. Birmingham Axle Co. . . 191 

Piatt V. Johnson 336, 338 

Player v. Boberts 109, 112, 115 

Pollard V. Commonwealtii 529 

Pollard V. Shaafer 94 

Pomroy v. Bice 475 

Pond V. Skidmore 492 

Ponton y. B. B. Co 279, 284 

Poore y. Price 535 

Porter v. Bank of Bntiand 194 

Porter v. Hannibal ft St. Jo. B. 

B.Co 282 

Porter v. Hooper 472 

Porter v. Porter 71 

Porter v. Bobinson 144 

Portsmouth Livery Co. v. Wat- 
son ., 495 

Posey y. Underwood 261 



24 



Cases Ciied. 



VA«a 
BostoiiT. Siiutii.«*«a« •••••»«•• 75 

Potter ▼. Potter 433 

Potter ▼. Stardivaat 703 

PottBT. Commonwealth 572 

Potts V. PortOnrlubD. &R. W. 

Co 280 

Powell V. Clark 451» 452 

Powell ▼. Edmonds 708 

PoweUT. Smith 200 

Powell ▼. W»tB(m 45 

Power y. Frick 227 

Powers ▼. Brig^ • 758 

Powles T. Fhige 108 

Pownal ▼. Taylor 575 

Prescott V. Tmman 08 

Preecottt V. Union Ins. Co 144 

Pteston ▼. DftysBon 423 

Pr e tty man ▼. Bapcrvisois ci Tmw- 

well 551 

Prevot V. Hennen 682 

Frioev. Jmikin 87 

Price V. Siflson 88 

Price ▼. Slaughter 72 

Price ▼. Toosey 257, 811 

Priest V. Hamilton 77 

Priestly ▼. Fowler 280 

Primv.Davis 494 

Prime T. Qarret 404 

Primot V. Thibodeaox 680 

Pring V. Clarkson 128, 124 

Pringle y. Hose 516 

Prinsle y. Samuel 427 

Pritchardy. Brown 182 

Pritchetty. Ins. Co. K. H. 215 

Proctor y. MoCall 224 

Praden y. Alden 145 

Pryor y. Fryor 821 

PabUo Administrator y. Watts. . 818 

Poroell y. Gohom 00 

Porly.DavaU 548,706, 706 

Pnrple y. Horton 569 

Paryianoe Bailway Co. y. Thames 

etc Ins. Co 198 

Patnam y. Commenul Ins. Co. . 190 
Putnam y. SuUiyan 305 

Queen y. Hepburn 516 

Quesenberry y. State 528 

Quiny. State 747 

QuincyCoal Co. y. Hood 199 

Quinn y. Patton 48 

Bailroad Co. y. Enittal 287 

Railroad Ca y.Yeiser 130 

Bailway Co. y. Dunham 286 

Railway Co. y. Lewis 287 

Railway Co. y. Skinner 236 

Rainwater v. Durham 298 

Rambaut y. Mayfield 44, 45 

Ramsey y. Stevenson 356 

Randall V. PhiUips 715 

Randall V. Pryor 38 

Rankin v. Bradford 69 

Rathbone y. Tioga Kay. Co 211 



Rathbnn y. logidls »«••. 485 

Rawdon y. Turton 122 

RawBon y. State 501 

Raymond y. Baar 573 

Rasing y. Ruddook 67 

Reay. Smith 714 

Read y. Phillips 316 

Ready.Staton 145 

Read y. Steyens 707 

Reading's esse 169 

Reading y. Weston 43, 102 

Reaiden y. Searcy's Heirs 430 

Reay y. Cowcher 317 

Reed y. Diokennan 009 

Eeed y. NorthiSeld 711, 712 

Reed y. Shepardson 371 

Reesy.ConooooheagueB8iik.126, 485 

Reeves y. Dougherty 107 

Reformed FioL Dutoh Church y. 

Mott 63 

Regey. Savage 751 

Regina y. Layton 410 

R^ina y. Oxford 404 

Regina v. Stokes 410 

Regina y. SimmoDsto 347 

Re^na v. Upton 747 

Reid y. Payne 127, 771 

Remseny.Brinekerhoff 320 

Respuh. y. Newell 249 

Rex y. Brampton 744, 750 

Rex y. Edmonds 522 

Rexy. Offord 404 

Rexv. Pitcher 358 

Rex y. Sparling 501 

Rex y. Wetwang 501 

Rexy. Wilcox 260 

Reynohls y. State 530 

Reynolds v. United States. .625» 532 

Richards y. Nolan 683 

Richardson y. Jones 107 

Richardson v. Newoombe 226 

Richmond y. Crudup 368 

Richmondville Mfg. Co. y. Frail. 475 

Riddle y. Proprietors 84 

Riddle y. Roll. 77 

Riden y. FHor 77 

Rid^^y y. Farmers' Bsnk 305 

Rig^ v. Patapsco Ins. Co 144 

Riffgs y. Dooley 77 

Riley y. Jameson 180 

Riley y. State line 9 S. Co. . . . 280 

Ripley y. Greenleaf 124 

Ripple y. Ripple 137 

Ritchie y. Moore 126 

Roades y. Barnes 122 

Bobbins y. Bnnn 555 

Robert V. Wifflrin 298 

Roberthon y. ^orroy 438 

Roberts y. Gallagher 122 

Roberts y. Ridgeway 77 

Robertson y. Dennis 543 

Robertson v. Robertson 181 

RobertRon v. Smith 77 

Robertson y. Smith's Heirs 76 



Cases Cited. 



26 



EolMrtnn T. Uolfted Im.O>.... 782 
Bobertmi y. W. F. ft IL L Go. 671 

BobertMn V. WudflBMB 60 

Bobins T. Bobins 606 

IKobumn, /« ffv 818 

Bobinflon ▼. Ghambarlajiift. 817 

Eobinaon ▼. Humlton 421, 423 

ilobijMoii T. Imperial limfaig Go. 73 

Jtobinaon t. Bandall 632 

Jlockwood ▼. Whitbig 76 

RodAbMgh ▼. SMiks 148 

Vb n m y. iMtkmAal^ AA 

fioe ▼. Bowkfcoo 65^ 77 

Bmt. Vomon 462 

fiogffsv.Brown 68 

Bogen ▼. Dicker 683 

Bogen T.Hfttob 74 

Bogen ▼. Sftewirt 266 

B^iM T. Amai 628 

Room T. HoqUfldato 818 

Boot ▼. Frandi 87. 664 

Bootes T. WeUfofd 811, 760 

Bom ▼. BrotfaflWHi 220 

BoeeT.HUee 606 

▼. Simi 220 

▼. Winoen 420 



V. 



Botheobild v. Strte 

Boaike t. White llioM OoDMnr 

Co 

Bowe ▼. Gmnite Bridge Ooq^. .. 486 

Bowleyy.Ben 863 

Bofwley ▼. Bigelov 161 

BoyT. State 620 

BooerT.Fa^a 661 

B. B. Go. ▼. Fort 284 

B. & Go. V. Mfller 282 

Badktn T.WatMn 69 

BaffT.BaU 107 

Boffiien T. Lewis 294 

Bngglea ▼. Keeler 78, 460 

Bong ▼. Shonebeiger., .116, 208, 242 

Bnaeell ▼. Gowlee 847 

BimellT.HiidaoiiB-B.Gow 279 

BoatT. Gott 216^808^ 468 

BatiierCord T. Batherfovd 820 

Bailand ▼. Batland 725 

Byan ▼. a ft N.W. B. Go 288 

Byaa ▼. GDmberlaad VaL B. B. . 279 

Sager. Hawley 74 

Salter V.Bart 686 

Saltoa ▼. Everett 87, 664 

Saltoa ▼. Ooean Ine. Go 675 

Sam V. State 527 

SammoiiY. N. Y. ftH.B.Go.... 287 

Sampeon v. GaEzam 245 

Sampson ▼.Smith 506 

Sancoes ▼. People 530 

Sanders ▼. Johnson 603 

Sanders ▼. Morrison 63 

Sanders ▼• Vanoe 500 

Sanderson ▼. Badger 71G 

Sanderson ▼. Bogers 707 



SsndeEMm ▼. WUto 68 

Seaf ord ▼. Batton 66, 78 

Sanfordv. Mioklea ^ 801 

Sanford ▼. Pond 492 

Saaser y. Davis 71 

Satterlee V. Matthswaon 702 

Sannderaon V. Judge 120 

Sanae v. Tooxne 237 

Sanvinet V. Maxwell 706 

Sawyer V. Adama 188 

Sawyer v. Planteis^ Bsnk 198 

Sawyer v. Rntland ft Boillagloii 

B.B.GO .TiT... 289 

Saylea ▼. Smith 762 

Sayrss v. ComaantweaMi 407 

Sohemerhom V. JenkiiMi 724 

Sehenck v. Meroer Ox eto. Lm. 

Go. 199 

Scfaoneman ▼. Fsgley 126 

Sohool Distriot vTlUidMleU. .404^ 496 

Sohmokle V. Biemiaa 640 

Sohayl]dllFallaBoad,OMao£.. 204 

Soottv. Da£^ 216 

Soott V. lifford 120 

Soottv. Bhodea 816 

Soott^a Ez*r V. Gorton's Bx^. .. . 677 

SoGvil V. Qeddingi 88 

Sooville V. GrafiSd . . . .866^ 866^ 866 

Soranton V. Stewart 628 

Soodder v. Trenton DeL F. Go. . 886 

Searle V. Lindsay 280 

Seatoay.Bany 168 

Seaver v. Boston ft Maine B. B. 288 

Seay V. Baoon 78 

Sedgwick V. Oerding 76 

Sedgworthv.Overend 689 

Selden V. Goalter 818 

SeneoaGoantyBankv.Neasa... 192 

Sentney V. Overton 68 

Sergeant v. Steinbeiger 68 

Sewell V. MoVav 69, 70 

Seymour v. Maddoz 282 

Seymonr V. Van Wyok 820 

Shafer V. State 682 

Shannyv.Adroeooggin Mills.... 287 
Shaiplessv. Mayor olPhila..... 145 

Shaw V. Grocker 129 

Shed V.Brett 770^ 771 

Shed V. Hawthome 510 

Shehan's Heirs v.Bamett'aHeira. 549 

Shelby V.Guy 460 

Shelby V. Shelby 60, 107 

Shelley V. Wright 455 

Shepard v. Bntterfield 738 

Shepherd V. Ross Go. 39 

Sherbnm v. Gommonwealth .... 264 

Sherman V. Boick 145 

Sherman v. Rochester ft Syr. B. 

R.Co 281 

Sherrington v. Jermyn 768 

Sherrod v. Woodard 107 

Sherwood V. Burr 338 

Sherwood v. Collier 44 

Sherwood v. Sutton 106 



26 



Gases Citbix 



Sh^ T. Millflc^s Hflin 451 

Shipp V. Winfield 70 

Shonok V. Bmoe 72 

Shotwell ▼. Lftwioii 89 

Showen v. Showers 319 

Shropshire v. GlsBCOok 727 

Shrank T. SohnyUdll Nat. Oo. . . 143 

Shamwsy t. Holfarook 166 

Shate ▼. Wade 78 

SiasY.Badffer 716 

Sickles y. llather 213 

Sidwell T. Evans 164 

Sigd v. Jebb 727 

Sikes V. Swarth 817 

Silliman ▼. Cuimnings 90 

Sidford y. Chambers 118 

Simmons v. Ins. Oo 199 

Simms y. Slooam 086 

Simonds ▼. HodflMn 731 

Simpson y. Hand 236 

Simpson y. Shannon 77 

Simpson y. Vickers 697 

Sims y. Campbell 185 

Sims y. Lyle 224 

Simsy.Lyles 805 

Sinsleion y. Bremar 94 

Sir Thomas BarWs Cms 606 

Sissons y. Bricknell 73 

Sisters of Chari^ y. KsUy 819 

Skidmore y. Boinaine ...•. 78 

Skinner y. Conant 831 

Skinner y. Hartford Bridge Oo. . 488 

Skinner y. Moore 176 

'Skippy. Eastern ConntiesBV Co. 287 

Skipwith y. Cnnninrfiam 293 

Slattery y. T. ft WTit V Co 287 

Sleight y. Kane 76 

SUngsby y. Boolton 48 

Sloan y. Case 327 

Smalesy.Dale 179 

Small y. PMctor 763 

Smalloomb y. Baekingfaam 583 

Smedes y. Utioa Bank 624 

Smith y. Bank of Washington . . 120 

Smith V. Bishop 107 

Smith y. Boazd of Water Com- 

miflsioners 194 

Smith V. Bodfish 706 

Smith y. Cheetham 516 

Smith y. Chester 118 

Smithy. Cincinnati 83 

Smith y. Commonwealth, 4ffJ. . . 408 
Smith y. Corporation ol Wash- 

inffton 129 

Smitii y. Edrington 433 

Smithy. Floyd 631 

Smithy. Heirsof Bond 76 

Smith y. Henry 291, 292 

Smith y. Hill 74 

Smith y. Hisoook 739 

Smith y. Hosmer 115 

Smithy. Jones 126 

Smith y. Lawrence 126 

Smith y. LoweU Mfg. Co 280 



Smith y. Mayo. •••••••««*•.»-•••-. 298 

Smith y. Moore 89 

Smithy. MnUett.. 120 

Smithy. Kewby 74^ 78 

Smith y. N. Y. & H. R. B. Co . . 289 

Smith y. Sherwood 37^ 

Smith y. Shnlts 608 

Smithy. Smith 23^ 659 

Smith y. Whiting 301 

Smithy. Winton 536 

Smitheal y. Gray 166 

Smith's Heirs y. Bond 74 

Smyth y. Hawthorn 120 

Sneedy.Ewing 166 

Sneed*s Ezr's y. White 576 

Snelling y. Utterbaok 182 

Snow y. Honsatonio R. B. Co. . . 289 

Snowden y. Smith 666 

Snyder y. Pennsylyania B. R. Co. 210 

Snvdery. Vanz 116, 202 

Solomons y. Bank of England . . . 739 

Speake y. Bichards 373 

Spencer y. London ft BJrmhigham 

R.Co 608 

Sperry y. Commonwealth 41(^ 

Spragne y. Shed 696 

Spring Garden street, Oms of . . . 204 
Sproaoey.Commonwealtii...524, 628 

Sproal y. Henmiingway 237 

Spurgeon y. MoElwain 61S 

Soo. tor Propagation of Gospel y. 

Pawlet 496 

Society for Propagation of Gospel 

y. Yoang 495 

Sorbor y. Willmg 11^ 

South y. Thomas 68 

South Sea Co. y. Wymondsell. . . 105 
Sonthwark R. R. Co. y. Philadel- 
phia 210 

St. Albans y. Bosh..... 344 

Stalls y. State 632 

Staniford y. Barry 330 

Stanton y. Wilson 640 

Starbuck y. Murray 334 

Stark y. Cannady 718 

Stark y. Mather 636 

Starry. Wright 87 

Statey. Abbey 760 

State y. Anderson 528, 529 

State y. Anthony 303 

State y. Aimington 746 

State y. Benton 524, 627 

Statey.Bone 630 

Statey.Brown 418, 631 

State y. Britton 747 

State y. Bnnger 520 

Statey. Burns 407 

State y. Caulfield 529 

Statey. Clark 630,633, 750 

State y. Cockman 630 

Stete y. Colby 760 

State V. Coleman 410 

State y. Collins 530 

State y. Corrigan 601 



Cases Cited. 



27 



PAoa 

StftteT.Cnnk 688 

Stete ▼. Crawfofd 411 

6Ute Y. Davis 520, 629 

State V. De Wolf 347 

Stater. Doohb 760 

State ▼. Ellington 629, 630 

State T. Erena 468 

State V. Felter 407, 410, 608 

State V. Flower 626 

State V. Fox. 622 

State ▼. Godfrey 633 

State ▼. Goodrich 760 

8Ute V. Gut 407, 408 

State ▼. Haiden 413 

State ▼. Harrii 472 

State V. Hilton 747 

State ▼. Holly.., 260 

Stite T. Holmes 601 

State v.HoiB. 760 

Stater. Howard.... 628, 629 

State V. Hundley 410 

State V. JeweU 632 

State V. Johnson 407, 626 

Stater. Jolly 420 

Stater. Jones 408, 409 

Stater. Sean 106, 760 

Statev.King. 407 

State r. Kinflsbazy 623, 626 

State r. Lanaeis 747 

Stater.Iibby 747 

State r. Lawzenoe 407, 410, 627 

Stater. Layton 70 

Stater. Loeffiier. 410 

State r. Mayor eta of Mobile. . . 129 

State r. MoDonald 747 

State r. McKee. .' 416 

State r. Medbnry 747 

Stater. Medlioott 624, 626 

State r. Millain. 623,624, 627 

Sute r. Miller. 601 

State r. Mooney 303 

Stater. Nolan 632 

Stoter. Norzis 633 

State r. Ostrander 626 

Stater. Phelps 600, 604 

Stater. Pike 624 

Stater. Poor 717 

State r. Potter 625 

SUter. PraU 407 

State r. Roberta 706» 700 

Stater. Rood 746 

Stater. Saline Go. Court 610 

State V. Sater 626 

Stater. Seals 747 

State r. Shippey 407 

Stater. Smith 309, 411 

State r. Soper 660 

sute V. Spencer 407, 410, 622 

State r. Starling 410 

State r. Strander 410 

State r. Thompson 631 

State r. Troatman 71 

State V. Word 624, 532 

Stater. West 532 



PAaa 

State r. Williams 626,629, 750 

Stater. WiUi 74 

State r. Wilner 407 

Stater. Winkler 750 

State Bank r. Clsrk 50 

State Bank r. Fearing 120 

State Bankr. State 68 

State Treasnrer r. Cross 135 

Stanp r. CommonwealiAi 623 

Stebbins r. Walker 683 

Steere V. Steere 182 

Stephens r. Graham 888, 700 

Stephens r. MoCormiok. 70 

Stephens v. People 627 

Stephenson r. Primrose 423 

Stetson r. Mass. F. Ins. Co 380 

Sterenson r. Mndgett 008 

Sterens r. Proprietors of Middle- 
sex Canal 483 

Sterensr. State 409 

Stewart r. People 630, 631 

Stiles r. Cowper 34 

St. John r. Holmes 000. 

St. Lonis & S. B. B'y Co. r. Brits. 287 

St. Mary's Choroh, Case of 698 

Stockton r. Hall 477 

Stookwell r. Marks 84 

Stoddard r. Martin 210, 458 

Stokes r. People 620 

Stokes r. Upper Appomatox Co. 379 

Stone r. Dennison 298 

Stone r. Sterens 680 

Stoner.Wood 768 

Stonffer r. Latshaw 144 

Storall r. Carmichael 78 

StoweUr. LordZonoh 720 

Street r. MoConnell 89 

Striokler r. Todd 338 

Strithorst r. Graeme 78, 460 

Strong r. Bachal 084 

Strother r. Cothey 530 

Stnkeleyr. Butler 462, 463 

Stnrderant r. Heirs of Morrell | t^ 

Stnrges r. Longworth 77 

Soffem r. McConnell 460 

Suffolk Bank r. Kidder 300 

Suffolk Bankr. Worcester Bank I ^j^ 

Sullivan r. Mississippi & Mo. .B. 

R.Co 279 

Sumner r. Mooro 707 

Sumner r. Murphy 115 

Sumner r. State 603 

Sunbury B. B. Co. r. HnmmelL 210 

Sussex Peera^ case 751 

Sutphen r. ibwler 39 

Sutton r. Clarke 128 

Sutton V. Began 411 

Sutton First Parish r. Cole 494 

Suydam V. Jones 94 

Srenson v. A. M. S. S. Co 289 

Swart V. Service 242 

Swayn r. Stephens 72 



28 



Cases Cttsd. 



Swayn v. Burke 635 

Sweetiand v. Sweetlaad 322 

Swett ▼. Brown 784 

Swetty. Swett 40 

Swift ▼. Thompaon 490 

Swinfordy In tne goods of 320 

TabbT. Harris 681 

Taberrerv. BrontDsll 73 

Taft V. Brewster 768 

Taintor y. Williams 490 

Tannahilly. Xnttle 689 

Tarkinton V. Aleauidsr 707 

Tarrant y. Webb 284 

Tatoy.BeU 000 

Tate y. Soathaid 180 

Tatlow y. Jaqett 609 

Taylor's Appeal 224 

Taylor y. fiank of Aleandila. . . 485 

Taylor y . Boyd 88| 39 

Taylor ▼. Hamptoii 256 

Taylor y. Swett 106 

Terrell y. Branch Bank of Mobile 197 
ToUBridgeCo. y. Betsworth.... 195 

Teynham y. Lennard 396 

Toacher y. Binamore 768 

Thayer y. Daniels 477 

Thayer y. St Louis. Alton & T. 

R.R.CO 280, 287 

Theckston y. Morston 317, 318 

Thellnson y. Woodford 699 

The Sarah Ann 076 

TheSaratoffa 276 

Thomas y . Folwell 00 

Thomas y. Ganran 106 

Thomaa y. Mochir 78 

Thomaa y. Newton 867, 739 

Thomaay. People 626^ 626 

Thomasy.State 407 

Thomas y. Wall 816 

Thomasy. White 107 

Thomaa Pearaona, In the gooda of. 320 

Thomaaon y. Odam 73 

Thompaon y. Boatick 203, 294 

Thompaon y. Branoh 182 

Thompaon y. Can. R. R. & B. €k>. 290 

Thompaon y. Cragff 69 

Thompaon y. Crocker 337 

Thompaon y. Gaillard 77 

Thompaon y. Grand Gulf R. & B. 

Co 210 

Thompaon y. Lay 228 

Thompaon y. Leach 678 

Thompaon y McKelyy 212 

Thompaon y. Schlater 704 

Thomson y. People 629 

Thornton y. Grant 610 

Thomtoii y. Wynn 149 

Thurman y. Shelton 72 

Tbmnton y. Blanchard 151 

Tichont y. Celley 344 

Tiddv.Iiater 59 

Ticrman y. Poor 90 

Tillman y. Wheeler 339 



Titoomb y. Seayer 72S 

Toddy. Landry 186 

Torryy. Bowen 319 

Tooro y. Oaaain 356 

Towlea y. Burton 182 

Towny.Keedham 106, 373 

Towaey y. Shook 717 

Trayia y. Brown 228 

Treadwell y. Mayor 279 

Treat y. Browninff 600 

Tremper y. Hempnill 677 

Trenton Banking Co. y.Woodraff 198 

Treyiyan y. Lawrence 473 

Tribe y. Tribe 321 

Tronpy. Smith 106, 107 

Troyfllo y. Tilford 717 

Tmman'acaae 747 

Tmaay.Old 115 

Tmateea of Anbom HmoL Sam. 

y. Calhoun 820 

Tnbba y. Blohardaon 809 

Tokey y. Smith 643 

Tonney y. Midland R. R. Co. . . 28S 

Tnnno v. Laqne 771 

Tunaon y. Runabottom 476 

Tarbill'a oaae 438 

Tomer y. Lowry 825 

Tomer y. Walker 686 

Turnpike Co. y. Field 104 

Tumpike Co. y. MoOazaon 495 

Tutty.Brown 728 

Tnttle y. Jaokaon 643 

TwitoheU y. Blodgett 651 

T. W. ft W. R. Go. y. Ingraham. 289 
T. W. &. W. R. Co. y. CrCoonor 288 

TVler V. Steyena 534 

a>aony.K.&S.Ala.R.R.Co .. 286 

nirich y. People 629 

Union Bank y. Campbell.... 190, 197 

Union Bank y. Knapp 213 

Union Burial Ground Co. y. Bob* 

inaon 208 

Union Canal y. Lloyd 199 

Union Locke eta y. Towne 82 

Union Mining Co. y. Rooky Monn- 

tainNatBank 195 

United Ina. Co. y. Robinaon .... 676 

United Statee y. Gooding 600 

United Statea y. Greene 766 

United Stetea y. Holmea 407 

United Statea y. Klintook 262 

United Statea y. Lawrenoe 410 

United Statee y. McGlue. . . .407, 410 

United Statea y. McHenry 530 

United Stetee y. Milla 500 

United Statea y. Reynolda 526 

United Statea y. Shulta 407 

United Statea y. Smith 262 

United Statea y. Vaughn 477 

United Statea y. Wilacm ... .629, 533 
United Stetea Bank y. Sill 537 

United Stetea Bank y. Steamaj ^ 



Cases Cited. 



29 



vAoa 

( 190 

IMted8taftMlM.Oo.T.airivw{ 197 

( 198 

Vairin T. HobKm S24 

ValflDtme ▼. Gooky 576 

ValflDtine y. Piper 146 

Valtei ▼. O. ft. M. B V G6 288 

Vandaef T. Tbenmm 718, 769 

Vandwplank V. Miller 28% 659 

Van Dyke t. Johns 834 

Van demert ▼. Porter 78 

Van Hoofin ▼> Holley 455 

Van Honten, Matter of 897 

Van LeaTanv. First NtttBtek.. 194 

Van Orman v. Phelps 89 

Van Btfnaielaer ▼. Glaric 87 

VanSohoickT.KlMnxBF.Iiis.Go. 199 

VanVaoterv. McKeOip 529 

Van VaDcinlmighy. Watson 540 

Vaaghaa ▼. BaoQB 156 

VenaUa y. BeanohHBp 158 

Venable ▼. PsakUog 74 

Vermilyea^JbiNifie 516» 528 

Vernon ▼. Speneer.... 321 

Vernon 800. V. Hills 498 

Vioars y. Wiloooka. 254 

Vieki^ y. SkeUey 225 

Vigors y. Oarlon 127 

Visehsr y. Yates 766 



Wade ▼• Johnson, 



WsaliffY.WMprta& 
Waithman ▼. Weayer 



78 

434 

567 

Wakey. Wake 697 

Wakeaeldy. Smart 73 

WaloottT.HaU 568 

Walden y. PhoBniz Ins. Ox 676 

Walker y. Walker 818 

WaUaoe y. Daffield 182 

Wallaoe ▼. Fkinnan 123 

Walton y. State 8U0 

Walwyn y. St Qnintin 118 

Wannel v. Chamberlain of thj 

City of Lcmdon 444 

Warmirton V. Barrows 316 

Warburton v. G. W. B. Go 289 

Ward y. Cole. 75 

Ward y. MorriBon. 476 

Warden y. Adams 100 

Ware y. Barataria & L. C. Co. . . 692 
Warner y. Commonwealth. . 747> 760 

Warner y. Erie R. Co 281, 282 

Warren y. Windle 229 

Washbam y. Merrills 43 

Washburn V. Tracy 659 

Washington B'k y. Lewis 192 

Waters v. State. 629 

Watertown y. Cowen. 94 

Watkins, j^ mirte. 198 

Watkinson y. B'k of Peon. 257 

Watson y. Boylston 461 

Watson V. Gre^ 180 

Watson y. Ins.^0. of North Am. 670 



Watson y. Meroer 90 

Watson y. Pittsbuoh eto. R. R. 

Co 210 

Watson V. Proprietors 692 

Watson's Lessee y. Bailey 90 

Watts y. Porter 476 

Watts y. Pablio Administrator. . 318 

Watts y. Waddle 39 

Wan-kow-ohaw-neek-kawy. Uni- 
ted States 580, 531 

Weakley y. Bell 126 

Weayery. Ward 483 

Webb V.Brown 87 

Weeks ▼. Webster 528 

Weoer y. Penn. B. B. Go 202 

Wemberg y. State 751 

Weiser y. Weiser 155» 158 

WeUand Gsnnal Go. y. Haih*- 

way 488^ 499 

Wellborn y. Ffailey 68, 70 

Wellbomy. Weayer 69 

Wellington's oase 385 

Wells y. Baglaad 77, 78 

Welsford y. Watson 353 

Welsh y. Joy 705 

West, In the floods of 321 

West Boston Sayings ▼. Boston.. 192 

Western Bank y. CioRisn 198 

West Cambridge y. Lezinffton. . . 166 
Western College y. CHty ofCleyo- 

knd 84, 85 

Westmoreland y. State 411 

Wetmore y. Tracy 249 

Wetmore y. White 838 

Whaalan v. M. B. ft Lake Erie 

B.B.CO 287, 280 

Wheaton v. East 298 

Wheelerv. Gityof GhMfamatl... 84 

Whistler y. Webster 697 

Whiston y. Stodder 672 

Whitaker V. Brown 739 

Whitbeck y. Cook 848 

White y . Bailey 76 

White V. Broooa 87 

White y. Howhmd 840, 342 

White y. Jones 535 

White y. Latimer 69 

Whit> y. Union Ins. Go 311 

Wbitehill y. WiLmn 144 

Whitemaa'b Ex'z y. Wilmington 

etc.R. £ Co .144, 210 

Whitledge ▼. Waits 34 

Whitney V. Dutch 298 

Whitney v. Godda^d 460 

Whitney v. Ladd 371 

Whitney y. Ocean inik Ca..670, 671 

Whittier v. Whittiei 40 

Whittingham V. HiM 297 

Whittineton v. Farmers* Bank . 495 
Wickereham v. Chicago Zino. Co. 192 

Wigget V. Fox 279, 284 

WigKins Ferry Co. v. Blakeman 287 

Wi^tman y. Coatee \47 

Wigmore y. Jay '287 



30 



Cases Cited. 



Wike ▼. Lightner 764 

Wilcox ▼. Hcmt 972 

WUoozT. Smith 745 

Wilooz V. Morris 43 

Wilde T. OantiUon 201 

WUderv. Mayo 78 

Wiley V.White 434 

Wilhelmi ▼. Leonard 362 

Wilkes ▼.Hongerfoxd Market Co. 506 

Wilkins V. PhUUps 67 

Wilkinson ▼. Leland 479 

Willard y. Stone 297, 347 

Williams' case 506 

Williams ▼. Bank of MIoh 498 

Williams ▼. Bank of U. 8 423 

Williams ▼. First Ftes.Soo...68» 78 

Williams V. Foalder « 601 

Williams ▼. Jones 460 

WiUiams ▼. Martin 362 

Williams ▼. Merle 87, 664 

Williams V. Korris 297 

Williams V. Otey 69 

Williams ▼. Presbyterian Chnxch 63 

Williams T. State 407,532, 747 

Williams V. Thorp 474 

WUliams V. Windiester 688. 

Williamson T. Dale 418 

Willings V. Gonseqna 672 

Willis Y. Cowper 39 

Willisv.Peo^ 407 

Willyard V. Hamilton 385 

Wihneiding ▼. Boss 68 

Wilson, In the goods of. 822 

Wilson ▼. Appleton 73 

Wilson ▼. Fleming 63 

Wilson ▼. Keller 76 

Wilson V. Eeed. 369 

Wilson V. Torbert 311, 760 

Wilson ▼. Wilson 71 

Winchester v. Baltimore etc. R. 

R.Co 190, 197 

Wineland v. Coonoe 87 

Winn ▼. Lee 74 

Winter v. Livingston 697 

Wisev. Haton 728 

Witkins V. Philips 77 

Witter V. McNeil 514 

WolooU V.Hall 569 

WoUv. Ooddaid 495 

Woltonv.Hele 349 

Wolverton V. State 747, 750 

Wood V. Jackson 439, 472 



Woodv.LesIie 73 

Woodv.Medlgr 317 

Wood T. Kew Bedford Goal Go. . 279 

Wood V. Partridge 477 

Woody. Biker 69 

Woodv.State 746 

Wood y. Stoddard 516 

Woody. Wood 724 

Woodard y. Spiller 148, 227 

Woodbridgev. Perkins 474^ 476 

Woodhnll, Ex'r, y. Osbonie 418 

Woodman y. Trsfton 737 

WoodraflF V. Bobb 103 

Woods v. Farmere 137 

Woods y. Halsey 145 

Woodward v. BUmohaid 180 

Woodworthv.B'k of America./ ^ 

Wooley v. Constant 338 

Woolley v. Garter 40 

Wormeley's case. . 522, 623ft 527, 530 

Wormoaui v. Cramer 569 

Worthington y. Hylyer 460, 453 

Wright y. Bntler 373 

Wright V. Commonwealtii . . 1^ 530 

Wright v. Qnier 116,141, 202 

Wright v. Hamilton 107 

Wrightv. Howard 337 

Wright v. Manh 39 

( 279 
Wrightv. K. Y. aB.B.ro.^ 283 

I 287 

Wright y. People 407, 411 

Wrightv. State 528 

Wych y. East India Go 68 

Wynnv. Allard 236 

Yatesv. Foots 756 

Yeaton v. Linn 404 

Yeomans v. Contra Goste & N. 

Co 280i 288 

Yoale y. Kiohards 43, 102 

Yoond y. Harris 426 

Young V. Frost 38 

Yoong V. Cooper 39 

l^oongv.K. Y. C.R.R.CO.... 289 

2Se]gler v. Day 279, 287 

Zonch y. Parsons 726 

Znroher V. Magee 441 

y. Moore...., 667 



American Decisions. 

VOL. XXXVI. 



f'-" 



CASES m EQUITY 



Df THB 



SUPREME COURT 



ov 



NOBTH OABOLINA. 



POMEBOY V. LaMBEXH. 

[1 TBCTTA'i BQVxnr, 6S.] 

ImnavmtExm Madb bt a Tsvaitt at Will inure to the benefit of the liod* 
kxd, and oaa not be reaohed by the tenant's judgment creditors. 

Bill in equity, brought by tiie judgment creditors of one 
Lcmok Lambeiby for tiie purpose of satisfying their judgment 
out of the improyements on certain land fdleged to have been 
giyen him by the defendant, but which the evidence showed he 
occupied shnply as tenant at will. The further facts appear in 
the opinion* 

W. A. Ordham, for the plaintifBEi. 

No appearance for the defendants. 

Daxibl, J. (after stating the pleadings). The evidence 
proves that the land has been increased in value by the im- 
provements placed on them by Lovick Lambeth. The land 
is now worth from one thousand two hundred and fifty dol- 
lars to one thousand five hundred dollars. But the plaintiflb 
have failed to prove that there v^s any gift, by parol or other- 
wise, by Joseph to Lovick; or that Joseph ever encouraged or 
advised Lovick to make the improvements. Lovick says in his 
answer, that his bankruptcy arose from losses at sea. There is 
no charge in the bill, that the improvements were made out of 
the funds of Lovick, with a view to defraud his creditors; or 
were subsequent to the plaintiffs' debt. If Joseph should bring 

his action of ejectment, there is nothing in the pleadings or evi- 
AM. Dm. tol. xxxvi-a 



34 Pboctob v. Feeebee. [N. Carolina^ 

dence to raise an equity in behalf of Loyick, to haye compensa- 
tion for these improvements. There was no gift of the land, or 
request by Joseph to improve; nor did Lovick make the im- 
provements under any mistake, inadvertence, or ignorance of his 
title. We admit, that when a person stands by and induces 
another to lay out money upon his property, under a supposition 
that he has a right, he will be bound by the facts as he causes 
them to be understood: The East India Co. v. Vincent^ 3 T. R. 
462; Stiles v. Cowper, 3 Atk. 692; Jackson v. Color, 5 Ves. 688. 
But there is no relief upon general equity from expenditure by 
the tenant under the observation of the landlord, but not under 
any specific engagement or arrangement: PHling v. ArmUage, 12 
Yes. 84. Lovick Lambeth was under no mistake, with regard 
to the nature of his title; he was but a tenant at will, or a tenant 
from year to year, making improvements and laying out money 
upon an estate in which he had no permanent interest. He may 
be guilty of great imprudence, but he has no equity against the 
landlord for such improvements: and as he has none, we are 
unable to see that his creditors have any. 
The bill must be dismissed with costs. 

By CouBT. Bill dismissed. 



Improvsmbnts Placed upon the Land or Another become the Utter^ 
property: Creti y. Jack^ 27 Am. Dec. 353, and note. When compensation is 
allowed to a bona fide possessor for improvements placed upon the land of 
another, is discussed in the notes to Whitledge v. WctU, 2 Id. 721; Barlow v. 
Bell, 10 Id. 731; Jackeon v. LoonUe, 15 Id. 347; Jom» v. Perrif, 30 Id. 430. 

Tenant, when Entitled to Fiztxtkes as against landlord: See the 
prior cases in this series collected in the note to Stockwell ▼. Marks, ante, 200. 



Peootor v. Febebee. 

[1 IvxDELL's Equity, 149.] 
Dbobee in Equfft Operates in Personam, and can not per $e divest the 

legal title. 

Land is Considered bt Equity as Converted into Personalty by a di- 
rection in a will that it shall be sold, and from the proceeds thereof a 
fnnd established for the payment of debts and legacies. 

Persons Entitled to the Proceeds of the sale of land, may elect to take 
the land itself. 

BlQ(7EST OF THE PROCEEDS OF THE SaLE OF LaXD TO A MABitntn WOMAN, 

inures to the benefit of her husband. 

Bill in equity. Thomas P. Williams, deceased, by will di- 
rected that all his lands not given away, should be sold, and 



Dee. 1840.] Pbocttob v. Febebee. 85 

after his debts were paid ibe residue diyided between his wife, 
daughter, and son. The executor was empowered to make such 
sale and execute conyeyances. Upon the refusal of the execu- 
tor to qualify, letters of administration with the will annexed 
were issued to Thomas C. Ferebee, the husband of testator's 
daughter, who thereupon instituted proceedings which culmi- 
nated in a decree and couTeyance of the lands to Enoch Sawyer. 
Enoch afterwards conveyed to Fred. B. Sawyer, who died 
leaving the mother of plaintiff as his only heir at law. Plaint- 
iff, and those under whom he claimed, had been in the contin- 
ued possession of the land for over twenty years, and had ma- 
terially improved the same, when Samuel W. Ferebee, the heir 
at law of Williams, sued him in ejectment, and recovered the 
premises. The farther &cts are stated in the opinion. 

A. Moore ^ tot the plaintiff. 

Kinney ^ tot the defendant. 

Bumv, 0. J. After the judgment of this court in the action 
of ejectment between these parties, at June term, 1837, the 
lessor of the plaintiff went into possession of the premises re- 
covered. Proctor, the defendant at law, then filed this bUl 
against Ferebee, and therein states the will of Thomas P. Will- 
iams, and all the other matters touching the titles of the respect- 
ive parties to the land in controversy in that action, in sub- 
stance as the same appear in the report of the suit at law, in 2 
Dev. k Bat. 439.' But the bill further states that Thomas C. 
Ferebee, the administrator of Thomas P. Williams, and hus- 
band of Peggy Williams (heir of Thomas P. Williams), and 
lather of the present defendant, received the price bid for the 
land, and carried the same into his account as administrator, 
and applied the same, in part, to the payment of the testator's 
debts; and paid over two thirds of the residue thereof to the tes- 
tator's widow and to his son Samuel, as their shares, under the 
bequests in the will, and retained the other third part as the 
share of his wife Peggy, under the same bequest. The prayer 
is, that the defendant may be decreed to restore the possession, 
convey the legal title, and account for the rents and profits. 
The answer admits all those facts as set forth in the bill. But 
it insists that the recovery at law was effected, upon the ground 
that Mrs. Ferebeewasnotapariy to the suit brought by Thomas 
C. Ferebee, her husband, and admioistrator of Thomas P. Will- 
iams, deceased, for the sale of the land; and for the same rea- 

1. JVrtUi T. iVM^M*. 



36 Progtob v. Febebee. [N. Carolina^ 

8on that the present defendant, who claims as her heir, can not» 
in this court, be bound by the decree therein, or anything done 
under it. 

We must remark that the defendant is mistaken as to the 
ground of the recoyery at law. The court eiqxreesly declined 
questioning the operation of the decree, on the interest of Mrs. 
Ferebee, merely on the groimd that she was not a party to the 
suit. It was so declined, because, if she had been a party, the 
decree could not haye affected her legal title, for the reason 
ihat a decree in equity does not profess, and can not, per se^ 
diyest a title at law, but only obliges a person who has the title^ 
and who is mentioned in the decree, to conyey as therein 
directed. In that case, Thomas 0. Ferebee was decreed to con- 
yey. But as the title was in the testator's heirs, and not in him, 
his oonyeyance passed nothing; and the title remained, as be- 
fore, in the heirs of the testator. That was the reason why the 
judgment in ejectment was giyen; for as the present defendanfa 
mother had not conyeyed, he was, upon the death of his father, 
entitled in possession to an undiyided moiety of the land. 
Whether in this court the defendant can retain the benefit of 
that judgment, depends on different prindplee. Upon the ad- 
mitted facts, we think it dear he can not. 

Upon the construction of the will, we before expressed the 
opinion that a sale of the land was not only to be made in case 
it became necessary, in aid of the personal estate, for the pay- 
ment of debts, but that the intention was positiye that there 
should be a sale at all eyents, either to create a fund for the 
payment of debts in room of a part of the personal estate, or 
for a diyision between the wife, daughter, and son. We now 
see no reason to doubt the correctness of that opinion, but think 
it sufficiently established by the reasons then stated. Conse- 
quently, in this court the fund is considered as conyerted, out 
and out, into personalty, because the testator intended that it 
should be so conyerted. 

In this aspect of the case, then, the defendant's mother had 
the legal estate, upon an express trust to turn the land into 
money, and pay the proceeds into the hands of the personal 
representatiye of the testator, to be by him applied, first, to the 
payment of his debts, and then, secondly, to be diyided among 
three persons, of whom she was herself one. Now, admitting 
that it is competent for persons thus entitled to the proceeds of 
the sale of land, to elect to take the land itself, or that only so 
much shall be sold as will satisfy the debts, yet nothing of that 



Dec. 1840.] PfiocTOB v. Febebee. 37 

kind occoired here. On the contraxy, ibe parties agree that a 
eale was neoessazy for the payment of debts, and part of the 
proceeds of the land was so applied. Indeed, two of the three 
legatees, Mrs. Williams and Samuel Williams, expressly elected 
that there should be a sale of the land, and in their answer, in 
the suit in equify, joined in the prayer for it. But here the de- 
fendant objects that his mother was not a pariy to that suit, and 
therefore, her share is not bound by the proceedings. If she 
had been a party, the decree would indeed have concluded her, 
as it does those who were parties proprio vigare, without regard 
to the truth of the facts stated in the pleadings, or declared in 
the decree. But in this case it is not material that Mrs. Fezebee 
ahould have been a jwurty to that suit; nor is it necessary to re- 
cur to that proceeding, even to bind Mrs. Williams, or Samuel 
Williams, or for any other purpose in this cause. It may be 
dismissed from our consideration altogether, and there will yet 
remain enough to oomi)el the relief to the plaintiff. It is 
admitted that the widow and son receiTed their shares of the pro- 
ceeds of the sale. They therefore must be regarded as concur- 
ring in or confirming the sale by that act, independent of the 
decree. Then as to the share of Mrs. Ferebee, it is to be recol- 
lected that, in the yiew of this court, that is personalty, and, by 
consequence, at the diefpositipn of the husband. The wife could 
make no election to the prejudice of the husband. On the 
contrary, the husband, having receiTed the purchase money, and 
paid to other persons such parts as th^ were entitled to, kept 
his wife's share asapersonal legeyoj, belonging in law to himself, 
as in truth it did. 

Thus the case is that of a sale of land by the cestwia que trust, 
who are here looked upon as the owners, and the receipt of the 
purchase money by them, upon the strength of which the pur- 
chaser calls on the trustee for the legal title. Of course nothing 
remains but for the trustee to convey, as asked. The plaintiff is 
therefore entitled to be restored to the possession; and there 
must be the usual decree for a conveyance, to be approved by 
the master, and for an account of the rents and profits, and of 
the costs adjudged to the present defendant as lessor of the 
plaintiff in the suit at law; and jhe defendant must pay the costs 
of this suit. 

By CouBT. Decree for the plaintiff accordingly. 

TiTLR, WHSN DiVXSTED BT JUDGMBNT OR DeCRBK PER SB. — ^The doc- 

tiine of the principal case, that a title con not be diveated per se by a decree 
iu equity, has long been eetablished and acted npon by courts of chancery, 



38 Fboctor v. Ferebek [N. Carolina^ 

and forms one of the most distingaishiiig remedial features of the equitable 
system as it preyaHs in this country and in England, except as modified by 
statutory enactments. The early English ohanoellors, in the development of 
the notion that equity acts on and aflfeots merely the oonsdencee of those 
against whom its aid is sought in the enforcement or protection of rights, 
laid down the maxim, that equity acts in perBonam against the parties, and 
not in rem upon the subject-matter, or, as it was expressed in the legal nomen- 
clature of the day, cequUtu agit in penonam: Story's Eq. Jur., sees. 743, 744; 
Pomeroy's Eq. Jur., sees. 134, 135, 170, 428-431; Penn ▼. Lord Baltimore, I 
Ves. 442; 2 Eq. Lead. Cas. 923, and cases cited in the notes thereto. The 
e£fect of this maxim was most important and far reaching. It prevented a 
decree exproprio vigore from creating or divesting any estate or interest in 
the subject-matter of the controversy, and limited it to a personal command 
upon the party who was ordered to do or refrain from doing that particular 
act which it was the object of the suit to secure. Thus, if the purpose of the 
litigation was to procure the specific enforcement of a contract for the con- 
veyance of land, or for a partition of the same, or that aa instrument should 
be surrendered up and canceled, and the like, the decree determining the 
rights of the plaintiff to the relief prayed for, never operated to invest him 
with the l^gal title. It simply empowered him to proceed further, and by 
the exerdBe of the remedial processes of the Qourt of chancery, such as 
sequestration, or imprisonment for contempt, to compel the defendant to 
execute the conveyance, or surrender the instrument, or do any other final 
act necessary to be done by him to transfer the legal title to the plaintiff. 

Important as was this doctrine in the earlier stages of the development of 
the equity jurisprudence, its operation has been greatly modified, and in 
most cases affecting the title to lands, entirely abrogated by statutes which 
have been passed in England and the United States. These statutes may be 
divided into two classes: 1. Those which provide in very general language, 
that if the decree direct a conveyanee, release, or acquittance to be made, 
and the party against whom the decree is rendered fuls or refuses to execute 
the same in the time specified in the decree, or in a reasonable time, if no 
particular time is specified, the decree operates in all respects as if the con- 
veyance, release, or acquittance were made; and 2. Those statutes which 
provide, that upon the failure of the defendant to perform the acts required 
to be done to pass the legal title, the same shall be done by an officer of the 
court, acting for him and in his name, and which give to such acts the same 
effect as if done by the party against whom the decree was rendered. Stat* 
utes falling within the first class, have been enacted in the states represented 
by the following decisions, in which it has been held that a decree ipso facto 
passes the legal title, and no further act on the part of any one is required to 
be done: King v. Bell, 28 Conn. 698; Battle v. Bering, 7 Yerg. 629; Taylor v. 
Boyd, 8 Ohio, 337; S. C, 17 Am. Dec. 603; BandaU v. Pryor, 4 Id. 424; Penn 
V. Hayward, 14 Ohio St. 302; Or^ffUhr, Philip, 3 Grant's Gas. 381; Towig v. 
Firoet, 1 Md. 403; Price v. Siseon, 13 N. J. Eq. 168; OiU v. Watson, 18 Mo. 
274, and in all subsequent cases such decree should be oonstrued by the same 
rules as ordinary conveyances: Hoffman v. Stigene, 28 Iowa, 302. But if the 
exigencies of the case require a conveyance, the same will be ordered: Young 
V. Prost, 1 Md. 403; and may be enforced by proceedings for contempt: Ban' 
doll V. Pryor, 4 Ohio, 424; in which case, if tiiere is a variance between the 
terms of tiie decree and of the conveyance, the rights of the parties will de- 
pend upon the former rather than the latter: Price v. Sisson, 13 N. J. Eq. 
168. And upon the same principle, where the decree operates as a oonvey- 
•noe, a reversal of the same, as between the parties, divests the title^ and 



Dec. 1840.] FtoCTOB v. Ferebee. 39 

nYwte it in the person who held it before the decree was made. But if a 
eonveyance is made under such decree, in good faith, before the prooeediAgs 
to reverse the decree are commenced, the title of the purchaser will not be 
■iEBcted by such reversal: Ta/ylor y. Boydy 3 Ohio, 337. When the title is 
divested, is a question which has occasioned a conflict of opinion. In ShotweU 
V. Laxowiif 30 Miss. 27| it was held that the title under the decree related 
back to the commencement of the suit; whUe in King v. Bell, 28 Conn. 598, 
it was decided that the title did not pass until the date of the decree. The 
operation of these statutes, however, is confiued to cases brought in the state 
courts. If the decree is rendered in a court of the United States, although it 
affects property situated within the state where the statute is in force, the 
dssree will not operate as a conveyance, and actual execution of a deed must 
be eoforoed either by attachment or sequestration: Shepherd v. J2ow Co., 7 
Ohio, 271. In order that such a decree shall operate as a conveyance, the land 
most be within the jurisdiction of the court. If the land which is the sub- 
ject-matter of the oontrovecBy or of the decree, is within a forei^ jurisdis- 
tion, the decree can not operate as a conveyance. It must be enforced by 
attachment, or otherwise, as the case may require. And it makes no differ- 
ence that at the time the decree was rendered the land had been brought 
within the jurisdiction of the court, if at the institution of the suit it was 
without: Daniel v. Stevens, 19 Ohio, 222; Penn v. Hayuxxrd, 14 Ohio St. 302. 
The power of the court to act in penonam has not been abrogated by the 
legislatioo rofened to above. It may still enforce its decrees in such manner, 
as, for example, where the subject-matter of the controversy is situated in a 
foreign country, and the partiea to be affected are subject to the jurisdiction 
of the court: Pomeroy's Bq. Jur., sec 135; Darnell's Ch. Pr. 1032; Penn v. 
Lord BtUHmart, 1 Yes. 444; 2 Bq. Lead. Gas. 932, and notes thereto; Car- 
rington v. Brenta, 1 McLean, 167; WaUs v. WaddU, Id. 200; WtUie v. Cawper, 
2 Ohio, 124; Henry v. Doctor, 9 Id. 49; Olney v. EkOon, 66 Mo. 563; CcUdweU 
V. Carrington, 9 Pet 86; Brown v. Desnumd, 100 Mass. 267; Pingree v. Coffin, 
12 Gray, 304; Davie v. Parker, 14 Allen, 94; Mead v. MerriU, 2 Paige, 402; 
Hawleif V. Jamee, 7 Id. 213; Subphen v. Foto2er, 9Id. 280; NewtonT. Bronson, 
18 K. T. 587; BaOey v. Byder, 10 Id. 363; Gardner v. Ogden, 22 Id. 332. 

In other of the states, which have enacted no such general statutes as those 
referred to above, the same effect has been produced by virtue of the statu- 
tory provisions regulating certain proceedings. The most important of these 
special statutes which have been passed in England and in the various states 
(rf the American union are those regulating the partition of lands between 
joint owners or owners in common. These statutes differ so greatly in their 
details, that no attempt will be made here to classify them. They may be 
found collected in 1 Washburn on Beal Prop. 689, n., 4th ed. They all pro. 
vide for the appointment of a commission to examine the premlBcs, make a 
preliminary partition of the same, and report their action to the court. The 
court may then affirm the report of the commissioners, or otherwise, as the 
nature of the case demands. Upon an affirmance of the report the question 
has frequently arisen, what effect has such decree upon the legal title to the 
various allotments. Most of the courts which have passed upon this question 
have held that the decree operated as a conveyance, and that no deeds of 
mutual release or partition were necessary to transfer the legal title: Wright 
V. Marsh, 29 GreenL 94; Barney v. Chittenden, Id. 165; Dixon v. Warters^ 
8 Jones' L. 451; Griffith v. PhiUips, 3 Grant's Gas. 381; AUie v. Schmitz, 17 
WiB. 169; Cannon v. Hemphill, 7 Tex. 202; Street v. McCannell, 16 la 125; 
Van Ommn v. Phelps, 9 Barb. 500; Young v. Cooper, 3 Johns. Ch. 295; but 
■se BmUh v. Moore, 6 Dana, 417, where conveyances were required. Such 



40 EiNa V. EiNOET. [N. Oarolina^ 

tit]«» it has been held^ paaees from the date of the commuaioiien' report, so 
as to enable a party aoqairing the title to mainfjiin trover for a oonveraon 
between the dateof saoh report and the date of the decree: Dixon ▼. Warien, 
8 Jones' L. 451. In New Hampshire, a decree in a divoroe siiit» amrignlng to 
the wife a part of her husband's estate, has been regarded, in the case of real 
property, as divesting the right of the hnsband, and vesting the entire in- 
terest and right in the wife, by the mere force of the decree, as e£EeetaaIly as 
the same conld be done by any oonveyanoe from the hnsband himself. The 
ooort said, however: *' Where the hnsband is ordered by a decree topay a som 
of money to the wife, the effect of the decree is not to change the title of any 
apecifio property, nor to give the wife any interest therein, and the order of 
^ court is to be enf oroed, like any other ezeontory order of the ooort^ by 
process of ezecntion, or of contempt, as the case may require. • • • 
But the case is otherwise wherethe wife's property is restored, or some d the 
hnsband's property is assigned to her. Such decree is not ezeontory; it is aA 
pnoe, by force of law, fully executed. The property passes by force of the 
decree:" WMUier v. WhitUer, 31 N. H. 452. And the same point was de- 
cided in StoeU v. 8weU, 49 Id. 264. 

The effect on passing the title by the recovery of a judgment in an action 
of trover for the value of the articles converted is fully discussed In the nois 
to IFoo&yv. Cinrter, 11 Am. Dec. 620. 



King v. Kinoet. 

[1 Tbsi>sw/s BQUirr. 187.] 

MosroAos— CoNVXTAKOB ov Laio), Aocompahied bt Vkbbal Aobbb- 
mEBT TO RiSELL the same at a certain date to the grantor or his appointee^ 
upon repayment of the consideration therefor, constitutes a sale and not 
a mortgage. 

Bill of redemption. The opinion states the facts. 

No appearance for the plaintiff. 

J, H. Bryan, for the defendant. 

Daiokl, J. The plaintiff filed this faill on the tweniy^ninth 
of November, 1838, to enjoin the defendant from proceeding 
in an action of ejectment against him, and also to redeem 
what he allies to be a mortgage of the land to the defendant. 
The plaintiff alleges that he, being distressed for money to pay 
his debts, agreed to mortgage to the defendant the land, two 
hundred and twenty acres, worth three thousand dollars, for the 
sum of one thousand three hundred dollars; that being an illit- 
erate man, it was agreed between them that the defendant 
should have the mortgage deed prepared; that instead of a 
mortgage deed, he had prepared an absolute deed of bargain 
and sale with a covenant of warranty. The plaintiff proceeds 
to state, that he, being much distressed with his debts, and hav* 



Doc. 1840.] Ema v. Eincet. 41 

ing no other person to aid him but the defendant, and then 
having great confidence in his word, did, on the twenty-fifth of 
September, 1829, execute the said deed, under a parol agree- 
ment, made at the time, that he might redeem the land in 
two years; that on the twenty-fifth of NoTember, 1833, he ten- 
'dered to the defendant all the money due to him on the said 
mortgage, but he refused to accept it, or to reconvey the land, 
«nd brought a suit at law to oust the plaintiff of his possession. 
The defendant, in his answer, says that the plaintiff offered to 
mortgage the land to him for a loan of money; but he expressly 
«nd distinctly refused to make any such agreement, but told 
the plaintiff that he would purchase the land absolutely. 
Whereupon an agreement for the absolute sale was entered into 
between them, and they both went to a mutual friend to have 
the deed prepared, which was accordingly done, and the deed 
was distinctly read over to the plaintiff, and he executed the 
«ame, well understanding its purport. The defendant admits that 
he did agree with the plaintiff to resell the land to him in two 
jears, for the same sum of money, with interest; or to convey 
it to his appointee, if such appointee would give a larger sum. 
But he denies that the deed by him taken, was ever intended to 
be a mortgage to secure any debt or demand which the 
defendant had on the plaintiff. The defendant says that 
ihe price by him paid for the land (one thousand three 
bundred dollars) was a full and fair price for the same; that 
be afterwards leased the said land to the phdntiff for two suo- 
-cesore years, expecting that he might avail himself of the agree- 
ment for a resale; that the plaintiff, idling to comply with the 
mgteemeni to repurchase within the time limited, he, at the ex- 
piration of the two years, occupied and cultivated himself all 
the land, except the dwelling-house and some lots of land near 
it, which he, out of humanity, let the plaintiff occupy, as he 
had then no other place to move to. Since he took possession 
of the land, he, the defendant, has made large improvements in 
-dealing, ditching, and fencing. The defendant denies that the 
plaintiff is illiterate; he denies any circumvention or undue ad- 
vantage taken of the plaintiff to obtain the said absolute deed 
of bargain and sale. To this answer a replication was put in 
by the plaintiff. 

There has been a great deal of testimony taken in this cause; 
many witnesses have been examined, and, among the rest, Eman- 
tiel Jarman, who wrote the deed. He says that King and Kin- 
oey came to his house, and both parties i*equested him to write 



42 Ema v, Eikcet. [N. Ooroliiuv 

a wairanty deed for the land, which he did. King said he had 
sold his land to Eincey. Eincey said, at the time of receiYing^ 
the deed, that if King would refund the sum given for the land, 
within two years from that time, he would return the land in a- 
quitclaim deed. Witness understood this to be a part of the^ 
contract. F. H. Jarman, the subscribing witness, states that 
King then, and at that time, said he had sold the land to Kin- 
cey; asked his father to write the deed; it was done; they ex- 
ecuted it, and he witnessed it. Eincey then stated that he had 
bought the land to save himself, and, when Eing paid him hia- 
money and interest, he would give the land up to him again. 
Several of the witnesses depose that Eing told them that he had 
sold the land to Eincey, but that he had two years to get it back, 
by i>aying the same money, or selling it to any other person ai 
a higher price than Eincey had given for it. Theie is proof that 
Eing knew how to write and read writing. He knew what he- 
was doing when he executed the deed. There is no proof that 
Eincey circumvented him, or imposed on the weakness of his- 
understanding, to get him to execute an absolute deed, when he^ 
intended a mortgage. As to the value of the land there has been 
a number of witnesses examined. Of those on the part of the* 
plaintiff, some say it was worth one thousand three hundred dol- 
lars—one says it was worth two thousand dollars. Of those oi¥ 
the part of the defendant, three say it was worth only one thou- 
sand dollars — several say (and they are good farmers, and men 
of standing in tl^ neighborhood) that the price given, one thou*" 
sand three hundred dollars, was a full and tail price for the fee- 
simple in the said land. Upon the whole case therefore, we are- 
of the opinion that a mortgage was not intended by the parties, 
at the time of the execution of the deed; but that the defendant 
agreed by parol to resell to the plaintiff or to his appointee, in 
two years from the date of the deed, for the same sum to the^ 
plaintiff, or to his appointee, if he would give a larger sum. 
From all the testimony, we think one thousand three hundred: 
dollars was a fair and full price for the land at the date of the 
deed. There is nothing in the evidence to show that the parties- 
contemplated a mortgage. There is nothing to show that the 
plaintiff was taken in or oppressed by the defendant. The- 
plaintiff did not make application to repurchase the land in the* 
time agreed upon, and he now has no right to complain. The* 
bill must be dismissed with costs. 

By CouBT. Decree accordingly. 



Dec 1840.] Brown v. Lonq. 43 

Absoluts Deed, when Cokhtdebep a Moktoaob: See Wa$hbum v. Mer- 
riOa, 2 Am. Deo. 69; Erskine t. Touftuend, 3 Id. 71; WUeox ▼. Morris, Id. 878; 
Dabney v. Ortm, 4 Id. 503; Dunham ▼. Dty, 8 Id. 282; CAom'^ eoae, 17 Id. 
277, and note; Reading v. FTeston, 18 Id. 89; Edrington v. Harper, 20 Id. 
145; JJorMon ▼. Leman, 23 Id. 376; Fou^ ▼. Richards, Id. 722; C»{tti ▼. 
JfoffiM, 25 Id. 729; CMweU v. IToocb, 27 Id. 345. 

The FBiNdPAL CASE IB CITED In SUioU T. Meuewdl, 7 Ired. Eq. 249, to the 
point that an aheolnte deed will not be oonstrned to be a mortgage withoat 
dear amd oonymoing proof. 



Bbown t;. Long. 

[1 Iua9BU.'B Equxtt, IM.] 

GkBiufiMUi mnvr Bbeablibh theib Debt at Law befora they oan elain 

equitable reliaf . 
EzBounoK Ibbited ok a Dobmaet Judqmekt n Irbboulae, bot not Toid* 

and can be aet aaide. 

JVDOMBBT GbBDITOBS MUST BaEBAUBT THEZB LeOAL BbMBDIBB bj eKMIltlOD 

before th^ oan obtain the interposition of equity, iinlnai their debtoi ia 
inaolvent, or has no viaible property. 

Bill in equity. The opinion states Che faots. 

^redeU, for Che plaintiflh. 

J. H. Bryan and Boyden, tor the defendants. 

BuFim, O. J. It appears npon the pleadings, that the 
plaintiff Brown gave to the plaintiff Campbell, his bond with 
surety for the amount of the debt of Long, one of the de- 
fendants, to Campbell, for which Brown was Long's surety; 
and that thereupon Campbell assigned the judgment at law to 
the plaintiff Cowan, in trust for Brown. It is admitted, by the 
defendants who have answered, that Josiah Huie and Robert 
Huie weie respectiyely indebted to Long by bonds in the sums 
mentioned in the bill, and that he. Long, indorsed the bonds 
to the defendants Hardie and Haigrove, in trust for himself, 
and to enable them to collect the debts for his benefit It is 
also admitted by them that the defendant Long has no visible 
or tangible property. But Long states in his answer, and such 
is the fact, that, at the filing of the bill, both the judgment ob* 
tained by Campbell and that obtained by Brown against Long, 
were dormant; and although, pending this suit, the latter has 
been revived, Campbell's judgment is still doimant; and for 
these reasons, he insists that there can be no relief heie in re- 
spect to either of the judgments. An order was made by con- 
sent, in the court of equity of Rowan county, that the master 



44 Brown v. Long. [N. Carolina^ 

of that oourt should collect the moneys due on the bonds of 
the Hiiies, and hold the same subject to the decree of the court; 
and the cause was set for hearing and sent to this court. 

But a single question arises in the present state of this case; 
which is, whether the plaintiffs are precluded from the relief to 
which they would otherwise be entitled, because the judgments 
«t law were dormant, when the bill was filed, and one of them 
is yet so? Upon the consideration of it, our opinion is against 
the objection made by the defendants. We agree that the cred- 
itor must show himself to be so by judgment; for it is only after 
he has established his debt at law, that he can claim the inter- 
position of this court to aid him either by mating his execution 
at law effectual, or by giving him relief by decree in this court, 
in the nature of an execution: Bambaui et al. y. Mdyfldd et al., 
1 Hawks, 85. But here the debts ha^e been reduced to judg- 
ments, and thus their justice concludyely established. It in 
true no execution could regularly issue on them, while dormant 
But even then there is not such a presumption of satisfaction as 
to render an execution, if issued, void. It is only irregular, 
and maybe set aside at the instance of the party: Oxley t. Mde, 
S Murph. 250; Dawaon v. Shepherd, 4 Dev. 497. Much less can 
it be assumed, in this suit, that the judgments are satisfied, or 
that the whole debts do not remain justiy due, when the debtor 
himself, after admitting the original debts and judgments, does 
not pretend, in his answer, that he has ever paid one cent upon 
either. The arrangement between Campbell and Brown does 
not amount to payment; for to avoid any possible inference of 
the sort, an assignment is taken to a third person, which has 
been held sufficient to keep the security on foot: Hodges y. 
Jrmarong, 8 Id. 268; Sherwood v. CMier, 8 Id. 880 [24 Am. 
Dec. 264]. 

Then with regard to issuing an execution on a judgment, be- 
fore coming into this court, we agree likewise that it is generally 
proper and necessary, and that for several reasons. Where the 
object of coming into a court of equity is, to ascertain incum- 
brances, to set aside conveyances as fraudulent, or otherwise 
•clear the titie of property, which the creditor alleges is liable to 
be sold under execution at law, the suing out of an execution, 
before filing the bill, is indispensable, to create a specific lien 
on the particular property in respect to which relief is sought. 
But if the property, out of which the satisfaction is sought, be 
an equitable right merely or any other right, which can not be 
reached by a legal execution, it is vain to issue the execution, so 



Beo. 1840.] Brown v. LoNa 4& 

far as xespeotB the creation of a lien; for, if issaed, it could have 
no sach e£foot. It is, however, ordinarily proper, even in snch 
a case as the hist, to take out an execution; but for a different 
purpose, namely, to establish, by demanding property from the 
debtor and a return of nuOa bona, that satisfaction can not be 
had at law out of any other effects of the debtor; and, for that 
reason, that the creditor was compelled to come into a court of 
equity, for satis&kstion out of such of the debtor's effects as thai 
court only can reach. A court of equity never interposes in be- 
half of a mere legal demand, until the creditor has tried the 
legal remedies and found them ineffectual. Then, and not be- 
fore, this court lends its extraordinary aid: JUcKay t. WrUiams^ 
1 Dey. k Bat. Eq. 898; Bambavi et al. y. Mayfidd et al., 1 
Hawks, 86. But, in the present case, the neoessiiy for the action 
of this court sufficiently api)earB, without resorting to further 
executions at law. The debtor was once taken in execution, and 
obtained his discharge as an insolvent; and he now admits that, 
when this bill was filed, and when he answered, he had nothing 
tangible, nor any effects but these equitable demands, due on 
notes assigned by himself, and held in trust for him. What 
useful purpose could a further execution answer in such a case f 
None whatever. It could create no lien, nor could it establish 
as clearly as it is established by the answers, that the creditor 
could not obtain satisfaction at law, or by means of any execu- 
tion but such as this court can supply. 

We therefore think the defense must fail; and dechure the 
plaintiff Brown entitied to satisfaction of the principal money, 
and interest, and the costs due on the two judgments, out of the 
moneys arising from the bonds of the Huies; and it must be re- 
ferred to the master to inquire and report the sums due in re- 
spect thereof; and also, the master of the court of equity for 
Bowan county must be directed to pay into this court the 
moneys arising from the said bonds of Josiah Huie and Robert 
Huie, as he may collect the same, to be applied as far as neces- 
sary to the satisfaction of the plaintiff's said demands and the 
costs of this suit. 

By CouBT. Decree accordingly. 



JusiSDicnoM OF Equitt to Entorob Cbxditobs' DsMAin>: See CommQ 
▼. WhUCj 22 Am. Deo. 659; New Lmdon Bank v. Lee, 27 Id. 713; Edmeatany. 
£yr/«, 19 Id. 454. When a creditor may maintain a bill in equity, to enforce 
his judgment, see Birelj^s Ex*r9 v. StaUy^ 25 Id. 303, and note. 

The principal cask is citxd and approved in Frost v. Reynolds, 4 Ired. 
lUi. 404; KUpatfick v. Mtans, 6 Id. 220; PoweU v. WcUmm, 6 Id. 94; BridgeB 



46 QuiNN V, Green. [N. Carolina^ 

▼. ifoye, Bfub. Eq. 170; Britain v. Quiett, 1 Jones' Eq. 828, to the point that 
creditors must establish their debt at law before coming into eqnity; and in 
Mwrphreff ▼. Wood, 2 Id. 63, to the point that an exeoatian iamd on a dor- 
mant judgment la irregolar, bat not TOid. 



QuiNK V. Gbeen. 

[1 XttDaLL'S BQiriTT, 999.] 

Bill ov Ikterplbadkr, to Determine the Ownership ov Profertt taken 
vnder exeoation, can not be maintained by a sheriff, against those order- 
ing the exeoation, and persons asserting a hostile interest in the properly 
seii«d. 

Bill ov Interpleader must Admit a Tttle AGAiNsrr the Plaintipv in all 
of the defendants. Sach bill, which states that as to some of the defend- 
ants plaintiff is a wrong-doer, can not be sastained. 

Bill in equil^. The opinion states the facts. 

Saunders, Alexander, and Hohe, for the plaintiff, 

Boyden, for the defendant. 

Bttffin, 0. J. The plaintiff, being sheriff of Lincoln county, 
reoeiYed a writ of Jieri facieia for two thousand four hundred 
and ninety-eight dollars and twenty-three cents, with interest 
and costs, recovered by the defendant Green against the 
defendant Johnson, as administrator of Timothy Chandler, de- 
ceased. The plaintiff placed the execution in the hands of one 
Maury, one of his deputies, who seized under it two slaves, 
which were found in the possession of the defendant Mor- 
ris; and also six other slaves, and some cattle and household 
furniture, which were found in the possession of the defendant 
Elizabeth Chandler. The seizure was made by the direction of 
the creditor Green, who pointed out the slaves and other articles 
to the deputy sheriff, as property belonging to the estate of Tim- 
othy Chandler, derived from Elizabeth Chandler by their inter- 
marriage and his subsequent possession. Morris, alleging the 
two slaves, that were taken out of his possession, to belong to 
him under an appointment by Elizabeth Chandler under a power 
in the will of one Arthur Graham, a former husband of the said 
Elizabeth, instituted an action of detinue for those slaves against 
Mauiy and Green. James Graham, as administrator of one 
William Graham, deceased (who was a son of the said Arthur 
Graham, deceased), also claimed the other six slaves, under a 
provision in the will of the father, Arthur; and brought an ac- 
tion of detinue for them against the same persons. A third 



Dec 1840.] QuiNN u Geeen. 47 

4ustiony namely, trespass, was brought against the same parties, 
Maury and Green, by Elizabeth Chandler, who claimed property 
in part of the slaves and other articles and the right of possession 
of the whole, and denied that any part was of the estate of her 
last husband, Timothy Chandler. The deputy sheriff delivered 
all the effects seized to his principal, the present plaintiff; and he 
waa required by the creditor. Green, to proceed to a sale, and also 
by Johnson, the administrator of Timothy Chandler, who in- 
sisted that the slaves and other things did belong to the estate 
of his intestate. The sheriff then filed this bill, as a bill of in- 
terpleader, against Green, Johnson, administrator of T. Chand- 
ler, and against the plaintiffs in the three actions at law, that 
is to say, Morris, James Graham, administrator of William Gra- 
ham, and Elizabeth Chandler; in which he acknowledges the 
possession in himself of all the proi>erly seized by his deputy, 
and submits to deliver to either or any of the defendants, or oth- 
erwise to dispose of it as of right he ought; and, in the mean 
while, jxrays for an injunction against further proceedings in the 
suits already brought at law, and also to restrain the creditor, 
Gkeen, from taking any steps at law to compel him to sell, or 
amerce, or otherwise punish him for not selling. 

To this bill the defendants Green and Johnson, admin- 
istmtor, demurred; and the other defendants put in answers, 
setting forth the nature of their respective claims, and submit- 
ting to interplead with the other parties. But when the cause 
came on to be argued on the demurrer, between the plaintiff 
and the two defendants, who had put it in, the judge of the 
court of equity was of opinion, that the case was not a fit one 
for a bill of interpleader, and therefore sustained the demurrer 
and disnussed the bill as against those two parties. From that 
decree the plaintiff appealed to this court 

In support of the bill, the counsel for the plaintiff has been 
unable to adduce the authority of any adjudication. His only 
reliance is a dictum of Lord Mansfield, in Cooper v. Sheriff of 
London, 1 Burr. 87; in which he mentions a bill filed in chancery 
by the sheriff, in a case of disputed property, as one of the 
modes in which a sheriff may be relieved from danger or indem- 
nified from loss. That, however, could not be a question in 
that cause; and, indeed, the doctrine belonged to another jur- 
isdiction, and therefore, although laid down by an eminent 
judge, is not authority. We are saved the necessity of discuss- 
ing the question on elementaiy principles, by having a case in 
equity deciding it in opposition to that opinion of Lord Mans- 



46 Fox V. HOBAH. [N. CaroUiia^ 

field. SlingAy r. BouUm, 1 Yes. & Bea. 884, ivas a bill of in- 
texpleader by a Bhexiff» aiinilar to the pzesent*; and, on the motion 
for an injunction, Lord Eldon inquired for an instance of such a 
bill by a sheriff, and, none being dted, he declared the sherifT 
to be concluded from stating a case of interpleader, because in 
sooh a bill the plaintiff always admits a titie against hiTnaalf in 
all the defendants. He said, a person can not file such a biU, 
who is obliged to state, that as to some of the defendants the 
plaintiff is a wrong-doer. 

If, in this case, the property was in the plaintiffiiin the actions 
that have been brought at law, the sheriff was a trespasser in 
seizing it, and he did it upon the responsibility of answering 
for the act as a trespass. Against that risk he should hare pro- 
Tided, by taking a bond of indemnity from the execution cied* 
itor. He can not escape from responsibility by turning o^er 
the owners of the property on the creditor. On the other hand, 
if the property was really subject to the debt, it was properly 
seized, and the creditor is entitled to have it sold, notwithstand- 
ing unfounded actions or claims by third persons. The sheriff, 
haying thus made himself liable to one or other of the parties, by 
misfeasance or non-feasance, is not a mere stakeholder, but his 
interest is directiy inTolved in any decision that can be made on 
the claims of the other parties. The decree must tfaereforo 
stand affirmed and with costs in both courts. 

By CouBT. Decree accordingly. 



Tri FBOfcirAL 0A8X IS oiTSD in Qiilmi ▼. PaUon^ 2 Ired. Bq. 48| to the 
pohit that a sheriff who has aeiied property oan not oompel adyane ohim- 
ants of the same to interplead for the porpOM of deciding the qnMtkm of title. 
F6r note on the sobjeot of Interpleader, see Shaw ▼. OMter, 86 Am. Deo. 900. 



Fox t;. HoBAH. 

[1 lanBu.'ft iQom, m,] 

Odbpobatiok's Right to En jot Pbopkbtt Lasts only eo long as the cor- 
poration OTlStS. 

Upon thb Dissolutioh or a Gosporation bt Lafsb or Tno, at comnHMi 
law its real estate roTerted to its grantors and their hein, its personal 
property escheated to the state, and its debts and credits became extinct. 

PBomssoBT Kotb, Exxoutxd in Fator or a Bank's Gabhuu, In tnut 
for the use and benefit of the bank, is extingaished by the tennlnation 
of the bank's corporate existence by lapse of time. 

Bill in equity. The opinion states the facts. 



June, 1841.] Fox v. Hobah. 49 

Alexander, Saimdere, and Bayden, tat the plaintiff. 

2). F. Oaldwdl and W. H. Edyu)Ood, jun.^ for the defendant. 

QjuncsK, J. A loan of money was obtained by one John 
G. HoekinB from the Ute state bank of North Carolina, bj 
the disoonnt at the Salisbniy branch of said bank, of a note 
executed bj said Hoskins as principal and Stephen Fox and 
William W. Long as sureties; payable at said branch to Will- 
iam H. Horah, cashier thereof. Upon this note an action at law 
was brought by Horah in the county court of Mecklenburg 
against Hoskins, Fox, and Long, which action was by successiTe 
appeals of the defendants carried up to the superior court of 
that county, and thence to this court, and a judgment was ulti« 
mately obtained by the plaintiff, after a deduction of sundry 
payments, for a beJanoe of four bundled and sixty-eight dollars 
and nineteen cents, with interest on three hundred and eighty- 
fire dollars and sixty-two cents, part thereof, from the Febroaiy 
term, 1889, of Mecklenburg superior court. Pending this action 
in the superior court the charter of the bank expired by its orig- 
inal limitation, and an attempt was there made to set up this 
oocnrrence as a legal defense; but the defense failed, because, 
in the language of this court, *' the legal interest in the debt 
was in Horah, and the action properly brought by him, and 
whether he was a trustee for the bank or any other person was 
an inquiry with which a court of law had no concern:" Horah 
T. Long, 4 Der. & Bat. 274 [84 Am. Dec. 878]. Therefore Fox, 
the present plaintiff, filed this bill against Horah, in which, after 
setting forth the death and insolvency of Hoskins and also the 
insolvency of Long, and charging certain payments or equi- 
table payments to have been made to the bank and its attomqrs 
in full discharge of the debt, he insisted that the debt forwhich 
Horah had obtained a judgment, was due to the bank, that its 
charter had expired, that thereby the said debt, if any part 
thereof remained unpaid, was extinguished; that Horah was not 
entitled beneficially to the same or any part thereof; and that it 
is unconscientious in him to collect it for his own benefit, and 
praying for an injunction. Upon the filing of the bill an in- 
junction was granted pursuant to the prayer. The defendant 
put in an answer, wherein he denied the payments alleged to 
have been made, and admitted the expiration of the charter as 
charged, and insisted that he, being the legal owner of the 
judgment, had a right, notwithstanding such expiration of the 
charter, to collect the same, and declared his purpose, when it 

▲it. Dbo. Tol. XXXVi— 4 



60 Fox V, HoRAH. [N. Carolina^ 

should be collected, to apply the proceeds to the satisfaction of 
outstanding demands against the late corporation and the stock- 
holders thereof. Upon the coming in of this answer the de- 
fendant moved for a dissolution of the injunction with costs. 
The court so decreed, and from this decree the plaintiff prayed 
and obtained an appeal to this court. 

One at least of the questions arising upon this appeal is not 
free from difficulty, and, so far as we can learn, is now for the 
first time presented for judicial decision. Certain it is that 
neither our own researches nor those of the counsel have fur- 
nished any adjudications, which have a direct bearing upon it. 
To enable us, therefore, to oome to a just conclusion, we must 
go back to principles in some degree elementary to endeavor to 
ascertain them with precision, and apply them, when ascertained, 
to the case before us. The late state bank was formed by an 
association of individuals, under authority of acts of the legis- 
lature, by which they were constituted a body corporate and 
politic to continue until the first day of Januaxy, 1835. Though 
the several acts, by which the institution was created or its 
powers, duties, and duration declared were public acts, the co]> 
poration itself was a private corporation: State Bank v. Clark, 1 
Hawks, 36. As such it was an artificial person existing only in 
contemplation of law, and having those capacities, which its 
charter conferred upon it, either expressly or as incidental to 
its existence. Among these was the capacity to hold property 
of the description mentioned in its charter, as an individual, 
continuing its existence and preserving its identity, notwith- 
standing all the changes by death or otherwise, among the na- 
tural persons, of whom that body politic was formed. This 
capacity — and others by which a corporation is enabled to main- 
tain its personality and identity — are sometimes spoken of as 
constituting a kind of " legal immortality." It is certain, how- 
ever, that the capacity to enjoy property in succession exists 
only so long as the corporation exists — ^that if by its charter the 
duration of the corporation be limited, and if that duration be 
not extended by the sovereign authority, the corporation dies 
when the allotted term of its existence has run out — and that, 
before the expiration of this term, the corporation may lose its 
existence by forfeiture of charter, because of ascertained delin- 
quency, or by a dissolution of the connection, by which its mem- 
bers had been compacted into one artificial person. We believe 
that the rules of the common law, governing the disposition of 
the property which the corporation held, at the moment of 



Jtmc, 1841.] Fox v, Horah. 51 

death are well settled — though differing according to the char- 
jMster of the property upon which thej operate as being either 
realty, personalty, or choses in action. The real estate remain- 
ing unsold reverts to the grantor and his heirs, ''because (in 
the language of Lord Coke) in the case of a body politic cr in* 
•corporate the fee is vested in their political or incorporate capa- 
city, created by the policy of man, and therefore the law doth 
Annex a condition in law to every such gift and grant that if 
such body politic or incorporate be dissolved, the donor or 
grantor shall re-enter, for that the cause of the gift or grant 
fiuleth:'' Co. Lit. 136. 

Gkx>dB and chattels, by the common law, were deemed of too 
iransitoiy and fluctuating a nature to be susceptible of rever- 
aonazy interests after an estate for life, and, on the death of a 
«Qiporation, they do not revert to the grantor or donor, but, 
being bona vacantia or goods wanting an owner, they vest in the 
sovereign, as well to preserve the peace of the public, as in 
anst to be employed for the safety and ornament of the com- 
monwealth. Choses in action are under the operation of a dif- 
ferent rule. They were rights of the corporation to demand 
money in the hands of persons, by whom it was withheld. 
They derived their existence from contracts or quasi contracts — 
by which the relation of debtor and creditor was created. 
When the creditor corporation died, and there was no suo- 
eeesor, no representative, the relation of debtor and creditor 
ceased, and the debt became necessarily extinct. None but the 
creditor had a right to demand the money, and when his right 
is gone, the money becomes to all purposes the money of the 
possessor. These rules of the common law, except as far as 
ihey have been modified by the acts of our legislature, and ex- 
<septing also those cases, in which by the charters of incorpora- 
tion, special provision is made in r^;ard to the corporate prop- 
erty, are the law here. 

Very important alterations, however, have been made by our 
legislature, but it is manifest that these have no application to 
the case, where a corporation expires by having lived out its 
allotted term. The act of 1831, chapter 24 of the revised code, re- 
enacted in the revised statutes, chapter 26, directs how an infor- 
mation may be filed against a corporation existing defacto^ in 
order to procure a judicial decision that it has forfeited its 
charter, or has been dissolved by the surrender of its franchises 
or by any other mode, and declares that on a final judgment 
tendered against the corporation of forfeiture or dissolution, the 



52 Fox V. HoRAH. [N. Carolina^ 

conseqnenoe shall not be to extingoiflh the debts due to or from 
the corporation, bat that the court rendering such judgment 
shall appoint a receiyer, and the receiver so appointed shall have 
fall power to collect in his name all debts due to the corpo- 
ration, to take possession of all its property, and to sell, dispose 
of, and distribute the same in order to pay off the creditors of 
the coxporation, and afterwards to reimburse the stockholders, 
under such rules, regalations, and restrictions as the court ren- 
dering such final judgment shall direct. These prorisions in eyezy 
part of them contemplate cases, where the termination of the 
legal existence of the corporation is the consequence of a judi- 
cial sentence against it. Where a corporation has lived out the 
term prescribed by its charter, it is de facto defanct. No judi- 
cial sentence can be rendered against it. There were, besides, 
peculiar reasons, demanding this special interposition of the 
legislatare in cases of what might be termed prematare death 
of the corporation. So distressing are the consequences which, 
according to the common law rale, resulted from a judicial death 
or dissolution, where the corporation was one that had carried 
on extensive operations, that the most flagrant violations of 
charter, the most culpable neglects to make the necessary elec- 
tion of officers, delinquencies of every kind and degree might 
be committed, and the public authorities would not dare to bring 
the questions of forfeiture or legal dissolution forward for judi- 
cial determination. But these provisions, by removing such 
distressing consequences, give freedom of action to the agents 
of the community, while they remove from the managers of 
corporate institutions the sense of impunity that might render 
them regardless of law. But the consequences of a regular 
death by the mere efflux of time could be anticipated by all — 
provided against by all; and legislative interposition against 
them was unnecessary. 

There can be littie or no doubt, therefore, that if the debt in 
this case had been contracted with the corporation, directiy and 
by name, and the judgment thereon rendered for the corporation, 
the debt and the judgment would have been to all intents ex- 
tinguished by the death of the corporation, and the collection 
thereof could not have been enforced by any legal process. But 
according to the terms of the original contract, the plaintiff be- 
came bound to pay the money to the defendant. This consti< 
tuted him, and not the bank, the legal creditor of the plaintiff. 
As such he has obtained his judgment, which is notextingoished 
by the death of the corporation, and which he has the undoubted 



June, 1841.] Fox v, Horah. 53 

power to collect bj l^gal process. And this brings us to the 
direct consideration of the great question in the case, is it 
against conscience in the defendant to collect it? 

In presenting this inquiry we may dismiss from our consider- 
ation the purposes, to whidi the defendant professes an inten« 
iion to apply the money when collected. It is not to be ques- 
tioned, we think, that on the expiration of the charter, the debts 
of every kind due from the bank were extinguished as completely 
as the debts due to it. The stockholders as such were not respon- 
sible for those debts, and the expiration of the charter did not 
throw upon them any such responsibility. There are therefore 
no outstanding demands against the late cozporation, or those 
who were stockholders therein, which in law or equiiy can claim 
to be satisfied out of the money which the defendant seeks to 
to collect. If he collects it, he can not be compelled to account 
therefor to any one, and may therefore keep it to his own use. 
We can pay no respect to a pretended trust, the performance or 
non-pezf ormance of which is dependent upon the will of the sup- 
posed trustee. If the defendant can rightfully collect this 
money, it is because he has a right to collect it for his own 
benefit. 

After much consideration, we are of opinion that he has not 
a right to collect it for his own benefit. In the contemplation 
of a court of equity, the debt of the plaintiff, so long as it ex- 
isted, and whether in the form of a note or judgment, was a 
debt to the bank. The money was borrowed from the bank, and 
the note given in such form as the rales of the bank prescribed, 
to secure to the bank repayment of the money so borrowed. 
The defendant was bare agent or trustee to collect and receive 
the money for the bank. It never was intended by the contract- 
ing parties — ^the debtors on the one side or the creditor on the 
other — ^that he was to derive any benefit from the transaction. 
It would be, we think, to sacrifice justice to technicalities, sub- 
stance to form, to regard the defendant as ever having been the 
creditor of the plaintiff. And if he was not, it is against con- 
science that he should avail himself of the forms of law to com- 
pel payment of what never was, and is not now due to him. 

The rights and duties which spring from the relation of trus- 
tee and cestui qwe truet are such as ordinarily do not affect third 
persons. Not being charged with the obligations of protecting 
those rights or of enforcing those duties, they are not U8uall;y 
responsible for infidelily on the part of the trustee. But when 
they deal with a trustee in that capaciiy, they may and often do 



54 Fox V. HoRAH. [N. CaxoliiUL 

contract oUigatioiis with the cestui que trust himself. If, for in* 
etance, in this case the defendant had been remoyed from his 
office of cashier, and the plaintiff with knowledge of that fiict 
and that the note was retained in lank, had paid it to the de- 
fendant and taken his release, it can not be doubted bat that the 
bank might in equily have compelled the plaintiff to pay the 
note to them. Yet the removal of the defendant from office 
would not have changed the l^gal title in the debt. Suit upon 
the note, if it had not been paid, must still, notwithstanding 
such removal, have been brought in the name of the defendant. 
But a court of equily would have made the plaintiff liable to iSb» 
bank, because, by reason of the discount of the note, the bank 
became his creditor — and because the removal would have been 
a notification that his creditor willed the payment not to be made 
into the hands of one, who had been selected as trustee because 
of an office, which he then held, but now no longer filled. If, 
the moment before the bank charter expired, the corporation had 
released the debt to the plaintiff, this would have extinguished it 
in equity, and the defendant would not have been permitted to* 
collect it. That court in these— and in all cases where it may 
be material to ascertain who is the creditor — ^will pronounce ac- 
cording to the truth of the transaction, disregarding mere f orms. 
The bank was in truth the creditor. The note and the judgment 
were but securities belonging to the bank, and proper to be en- 
forced to compel payment to the bank of what was due to it. 
No one could rightfully put these securities in use, but by the 
presumed or expressed direction of the bank. Upon the death of 
the bank without succession or representative, this debt became 
by law as completely extinguished, as it could have been by a 
release from the corporation. While there was a debt and a. 
creditor, the trustee could not rightfully enforce the securities- 
but for the payment of the debt to the creditor. After the ex- 
tinguishment of the debt he can not rightfully enforce the secur- 
ities, because there is no debt to be paid and no creditor to be 
satisfied. 

In the course of the argument the defendant's counsel pressed 
upon us with much earnestness the case of Burgess v. Wheaie^ best 
reported in 1 Eden's Cas. 177. The point there decided by the 
Lord Keeper Northington with the concurrence of the master of 
the rolls, Sir Thomas Clark, but against the opinion of Lord Mans- 
field, was simply that the crown, claiming by escheat, had not a 
right to compel a conveyance from a trustee, the trust beings 
determined by the death of the cestui que trust without heirs^ 



Jtme, 1841.] Fox v. Hobah. 55 

Assaming tbat decision to be correct, it must be upon the strict 
and technical doctrine, that there can not be an escheat, while 
there is a tenant to render the feudal services. Upon this it was 
mainly rested by the lord keeper and the master of the rolls. 
Another ground was indeed taken that a court of equiiy will not 
grant a subpoena against a feoffee for one who is not in priviiy 
with the feoffor, and therefore the crown, not claiming thus in 
priyity, could not have the aid of the court. This latter ground, 
howeyer, has been substantially repudiated by subsequent ad- 
judications. In MiddleUm y. Spicer, where the testator had 
devised chattels real to be sold and given the proceeds to hia 
executors in trust for a chariiy, which trust was void because of 
the statutes of mortmain, and there were no next of kin to be 
found. Lord Thurlow made these impressive remarks: ''I do 
not see how this case is distinguishable in principle from Burgess 
and Wheaie, The devise vests the legal property in the executor. 
The question results whether the executor, being appointed only 
as a trustee, can take as highly as an occupant at common law. 
Where there is a trustee the general rale of this court is that he 
can have no other title. Burgess and Wheaie was determined 
upon divided opinions, which continued to be divided, of very 
learned men. The argument of the defect of a tenant seems to 
be a scanty one. Whether that case is such an one as binds 
speciaHm, or affords a general principle, is a nice question. '* 
On a subsequent day, after having fully advised on the case, he 
decided, that the executors being trustees could not by any pos- 
sibility take a beneficial interest— that being thus excluded from 
the beneficial interest, and no relations to be found, the cred- 
itors were as much trustees for the crown, as they would have 
been for any of the next of kin, if these could have been dis- 
covered: MiddleUm v. Spicer, 1 Bro. C. C. 201. The authority 
of this case was distinctly recognized and its principle followed 
out by Lord Bosslyn in Barclay v. Bussel, 3 Yes. 424, and by 
the vice-chancellor. Sir John Leach, in Henchirnan v. The 
Ailamey-general, 2 Sim. & Stu. 498; 1 Cond. Eng. Ch. 559. 
The decree in this last case was indeed reversed on appeal: See 
3 My. & K. 485; 10 Eng. Cond. C. C. 261; but the reversal was 
upon a ground not at all impugning the authority of MLddleton 
V. Spicer. There is little doubt, therefore, that, at this day in 
England, Burgess and Wheate would not be followed, except 
spedaiim in a case of proper escheat, and then upon the aigu- 
ment, ** scanty" as it is, that upon feudal principles there can 



58 Fox V. HORAH. [N. Carolixut, 

be no escheat, except for the defect of a tenant to render the 
feudal eeiricee: See also 4 Kent's Com. 423, 424. 

Perhaps neither the case of Burgess and Wheaie, nor those in 
which the doctrine there asserted was revised, have any yeiy 
close application to the question tinder consideration. It is not 
now an inquiry whether the plaintiff can call uiK>n the defend- 
ant to execute an alleged trust annexed to property in the de- 
fendant's hands. The plaintiff does not seek to disturb the de- 
fendant in the enjoyment of any possession he holds, upon a 
claim that the plaintiff has succeeded, either in the per or the 
postj either through or after the cozporation, to the beneficial 
interest of the original cestui que trusi. The state alone can set 
up such a claim; and if the property were in the defendant's 
hands, we do not see why it would not be a valid claim. But 
the plaintiff asks of the court to prsTent the defendant from 
taking away plaintiff's money to which defendant has no right. 
And he asks this of the court as a court of equity, because a 
court of law is unable to look beyond the judgment and pro- 
nounce that the defendant is not a creditor. At law the judg- 
ment is absolute and condusiye eyidence of title in the defend- 
ant, to money withheld by the plaintiff. In equiiy it is but a 
security for the collection of money, which ought not to be en- 
forced, except in the furtherance of the purposes for which it is 
held. But it seems to us that the general principles, emphatic- 
ally laid down by Lord Thurlow in the case of Middleton y. 
Spicer^ before referred to, have a strong bearing upon the sub- 
ject of our inquiry. '' Where there is a trustee the general rule 
of this court is, that he can have no other title." Again, '^ The 
executors being trustees can not by any possibility take a ben- 
eficial interest." Admit that in the case of an escheat the trus- 
tee may be permitted to insist, that the extinguishment of the 
trust shall operate for his benefit, the case of an escheat is then 
avowedly an exception from the general rule, which forbids a 
trustee to claim in contravention of the condition, in which he 
took the legal interest. Is there any sufficient reason why an- 
other exception shall be made, as is contended for by the de- 
fendant in this case? 

It is urged that although the defendant has no equitable title 
to this money, neither has the plaintiff; and therefore the court 
ought not to interfere but suffer the law to prevail. Now, with- 
out repeating what has been before stated, that the extinguish- 
ment of the creditor's equitable right annihilates the equitable 
debt so that plaintiff no longer owes, and therefore in equiiy 



June, 1841.] Fox v. Horah. 57 

has a pexfeot xi^t to this money, it is enough that he does not 
-owe it to the defendant, to give him an eqtdly againfit the de- 
fendant. The money is yet in the plaintiff's himds — and he has 
a right to keep it i^gainst all the world, onless it be required 
from him by one to whom it is due, or in behalf of one to whom 
it is dne. Mdior condiHo possidentis. 

It is also insisted that Vbe plaintiff acted against oonsdenoe 
in resisting the claim, when preferred against him in behalf of 
the creditor, and delaying the suit until the charter expired and 
the debt was eztinguiahed. If this be so, it does not follow 
that the defendant, by reason of such misconduct, became en- 
titled to the debt thus wrongfully extinguished. The corpora- 
tion might, before its charter expired, have assigned this debt to 
the defendant or to any other person, and thus have kept it in 
fnristflncft against the plaintiff. But the corporation did not so 
will. It preferred to die in quiet, and permit its claims and its 
injuries to die with it. No one can now assert the former, or 
redress the latter. 

But the resistance made by the plaintiff to the suit at law, 
while prosecuted by the defendant for the bank, may be deserv- 
ing of consideration in one iK>int of view. The defendant may 
have incurred expenses in the prosecution of that suit, against 
which he ought to be indemnified; and while the plaintiff asks 
equity he should be compelled to render it. We have doubted, 
therefore, whether the injunction ought not to be dissolved, so 
fiir as respects the collection of the costs of the suit at law. 
No suggestion, however, of that kind was made upon the argu- 
ment, and it seems to us that the question of these expenses is 
not now properly before us. The answer does not set up this 
equity; nor even aver that the defendant has paid, of his own 
moneys, or made himself personally liable to pay these costs; 
and it may be that they have been paid by the bank. As the 
cause must be remanded, he will have an opportunity, in such 
mode as he may be advised, of bringing this equity, if it exist, 
to the notice of the court below, where, no doubt, it will re- 
ceive due attention. 

It is the opinion of this court that there is error in the inter- 
locutory decree appealed from, and that upon the defendant's 
answer the injunction theretofore granted ought not to have 
been dissolved. This opinion will be certified to the court 
below, and the defendant must pay the costs of the appeal. 

^y OouBT. Ordered accordingly. 



58 Mttj.kk u Bingham. [N. Carolina^ 

Thx EmoTS Produced bt a Dissolution of a Cobpohatiov are dis- 
cossed in the note to State Bank r. State, 12 Am. Dec 234. In that ease It 
was held, that upon a diasolution of a oorporation its lands and tenements re- 
yerted to the person by whom they were granted to the oorporation; its good* 
and chattels vested in the crown, and the debts due to or from it were extin- 
goished. The principal case is cited and approved in MaUoy v. MaUeU^ 6 
Jones* Eq. 845, and Bank v. Tiddy, 67 K. C. 169, to the point that dhotea in 
aotion of a oorporation beoome extinct upon its dissolution. 



MiLLEB V. BiNOHAlL 

[1 Ibbdsll's Bquitt. 433.! 

PiBSONAi^ PaoPBBTT, Sbttled TO THE Sep ABATE UsB of a married womaiw 
is free from any right or control of her then husband; bat if he dies» and 
she sabsequently marries, the estate therein vests in snoh second husband 
upon Ms redadng them to possession. 

PoBSESSiov OF A TRUSTEE IS CoNSiDE&ED as that of the benefioiaiy. 

Adtebse Possession, between the Trustee and Cestuis que trust, can 
not exist where the trust is express. 

Chattel in the Possession of the Trustee of a woman, is not a ohose 
in action, but a ohose in possession, and on her marriage will paas to her 
husband. 

Bill in equity. The opinion states the facts. 

2>. F. GaldweU and Iredell, for the plaintiff. 

WaddeU and Barringer, for the defendants. 

Daioel, J. Maxwell Chambers, the father of the plaintiff^ 
bequeathed as follows: '' I give and bequeath to my son, Ed- 
ward Chambers, as trustee of my daughter, Anne Chambers 
(wife of Heniy Chambers), the following negroes: Beck, etc., to> 
have and to hold to my said son, Edward, in trust, and for the 
benefit of my daughter, Anne Chambers, and her heirs forever. 
It is my wish and request that my son Edward will pay over to 
my daughter Anne, the profits arising from the said negroes, 
semi-annually, for her support- and comfort." In a codicil to the 
will, the testator says: '' My intention in the devise of the five 
negroes, to wit. Beck, etc., to my son Edward Chambers, aa 
trustee of my daughter, Anne Chambers, my intention is this: I 
give the five negroes, to wit, Beck, etc., to Edward Chambers to> 
hold in trust, and for the sole benefit of my daughter Anne, to* 
support her during her life, with the profits arising from the 
labor and hire of the said five negroes, and their increase. And 
if my daughter Anne should have lawful issue living, at the time 
of her death, then I devise and order that the said Edward 



Jmie, 1841.] Miller v. Bingham. 5^ 

Chambers^ trustee of my said daughter Anne, shall deliver and 
oonvej absolutely^ at the death of my said daughter, the said 
five negroes and inorease, to the said lawful issue of my said 
daughter Anne, living at the time of her death. And if my 
daughter, Anne Chambers, should die without having issue, that 
then my son Edward shall convey the said five negroes and in- 
crease in equal shares to my heirs, or shall sell the negroes and 
divide the money in equal proportions among my heirs.'' Henry 
Chambers died, and his widow, the said Anne, married George 
Miller. The trustee died, and George Miller was apiK>inted 
trustee by the court of equity, and took into his possession the 
said slaves. George Miller then died, and the defendants are 
his executors. Anne, the widow, claiming as cestui que trttst^ has 
filed ibis bill, for an account of the rents and hires of the said 
slaves, since the death of Miller, her last husband. The de- 
fendants have answered and claim the rents and hires of the 
negroes, as belonging to the estate of their testator. 

That the slaves were well settled hj the will to the separate 
use of Anne Chambers, and excluded any right of her then hus- 
band (Henry Chambers) is very clear: Davia v. Cain^ 1 Ired. 
Eq. 304; BudinU v. Watsm, 2 Dev. Eq. 480. But there is 
nothing in the will of Maxwell Chambers to show that he an- 
ticipated a second marriage of his daughter, and he did not at- 
tempt to provide against such a contingency. The equitable in- 
terest in the slaves was given to the plaintiff for life. In this 
court the trust inathing is the estate in that thing. The plaint- 
iff, therefore, had a right to make an assignment of her interest 
in the slaves; on her second marriage, therefore, her interest 
passed to her husband. The second husband took the slaves 
into his possession. If, however, he had not taken them into 
his actual possession, and they had been in the possession of 
any other trustee under the will, still such a possession would not 
have been adverse to the husband; for the actual possession of the 
trustee is but considered as that of the person beneficially en- 
titled; indeed the estate of the trustee exists entirely for the 
benefit of the cestui que trtisi. Where the trust is express, as in 
this case it is, there can be no adverse possession between the 
trustee and cestui que trust. It is not, however, of course, to 
divest the trustee of the management of the trust property, and 
to deliver the possession to the cestui que trust for life. It must 
depend on the intention of the settlor, or him by whom the 
trust was created: Udd v. Lisierj 5 Madd. 429; Dick v. Pitch- 
ford, 1 Dev. & Bat. 480. A chose in the possession of the 



60 Miller v. Bingham. [N. Carolina 

trastee of the femef therefore, is not a ohoee in action, bat it ie 
a ohoae in posaession, and irill on her marriage (if a chattel) 
pass to her husband: Qranbery y. Mhoan, 1 Der. ^6; Petiyohn 
T. Beadey^ 4 Id. 612. A trust is not, as it was formerly held, 
a chose in action, but a present interest, an estate in possession: 
Miifard t. MUford, 9 Yes. 98, 99; BurgeasY. Wheale, 1 Eden, 223, 
224; Lewin on Trusts, 623. The circumstance of the trustee 
being directed to pay the rents and hires semi-annually does not 
alter the case. In Beit&m y. Benson^ 9 Oond. Oh. 201, the 
testator directed the interest of ten thousand pounds to be 
for the separate use of his daughter, Jane Lane, the wife 
of J. Lane, for her life, free from the debts of her husband, to 
be paid to her at the end of eyery six months. The husband 
died, and his widow married again. Held, that the trust for 
her separate use ceased on the death of her first husband, and 
that the second husband was entitled to the interest. The same 
doctrine was laid down by the court in Kmghi y. Emghi^ 9 Eng. 
Oond. Oh. 199. These two cases axe dedsiye against the plaint- 
iff on all the points in the case. The bill must be dismissed 
with costs. 



By OouBT. Bill dismissed with costs. 



SxpabatiHbkaxi ov MimCTSD Womir and fheir oontrol ovw it: TkomM 
T. ^ohodL, 90 Azn. Deo. 230, and nofce. 

AnvxBsx PoasESSiON dobs not Ezibt, and the statate of limitrntiona doea 
not apply, between a trastee and a eutui que trust of an express trust: Shelbjf 
T. Shelby, 6 Am, Deo. 686; Deeouche t. SaveOer, 8 Id. 478; Kane ▼. Blood- 
goody 11 Id. 417; Edwards v. Umvereiiy, 30 Id. 170, and note. The effects 
on the rights of the ceatiU que tnut produoed by the running of the statute of 
limitations against the trastee in favor of a third person, is disoassed in the 
note to OolUne y. Lqftus, 34 Id. 719. 

Thb fbikoipal oass is cited and approved in BeaU t. Dardenf 4 Ired. Eq. 
76; Harriav.Harrie, lid. Ill; AppUy.AUen, 8 Jones' Eq. 124^ to the point 
that personal property held in tnist for a woman, npon her marriage, vests in 
lier husband. 



GASES 

nr THB 

SUPREME COURT 

OF 

OHIO. 



MiLBS V. 



KMtltM 



[10 Obzo^ 1.] 

OooBT ov Law will vot Emtkbtain Quisnoir ov VALiDirr ov TEuns* if 

an «itete be oonr^yad to » grantee oapable of taking the troft eitete. 
term OF Laitd to Teustebs and thsib SuoonsoBS, the eacoenora to be 

appointed by the ooort of common pleas, le void aa to the raooeMon. 
DmsB TO TBOBima axd to the Subyxvobs or anrviTor of them, to hoUl aa 

joint tenanti, and not as tenants in oommon,* vests aa estate for life in 

thesorvivor. 
JoiXT TUTAHcnr sab iro Bzornob xh Ohio, m distingoidied from tenancy 

tn common* 

EnoncBMT on an agreed statement of facte from Onyahoga 
oonnly. Daniel Miles, the testator, devised his estate to 
three persons, in trost, and to the snrriyorsor snrviyor, as joint 
tenant, and not as tenants in common. Aft^ the payment of 
certain debts, legacies, etc., the net income from the remainder 
of his estate, for one hundred years, from 1826, was to be ap- 
plied to the education of certain specified descendants; after 
the expiration of the one hundred years, the income was to be 
applied, one half to a certain religious denomination, the other 
half to the common schools of Newburg. The judges of the 
common pleas were directed to fill any Tacancy that might occur 
from the death, removal, or resignation of one of the trustees. 
Three questions were raised in the argument: 1. Whether the 
succession of trustees did not create a perpetuity. 2. Whether 
the devise, being for the testator's own family, was not a gift 
merely, and not a charity. 3. If it is a charitable bequest, is 
it not BO indefinite that it can not be executed ? 



€2 Miles v, Fisher. [Ohio, 

Wade, Welles, and Hamline, for the plaintiff. 
Payne and WUsan, for the defendants. 

Lakb, C. J. Much industry and learning have been deroted 
to the investigation of the yarions questions arising in this case, 
And the time probably will oome which wiU render their ex- 
amination necessary. But in an action of ejectment, regarding 
legal titles, only, it will not be required to enter upon this 
widely extended field. For the charity may subsist and cling 
to the land, whether the l^gal title be held by the trustees or 
the heir; or the charity may be void and unsustainable, and the 
beneficial trust inure to the heir, while the trustees retain a good 
estate at law. The questions therefore raised in argument lie 
behind that which is presented in the case. We are now only 
called to consider if the freehold passed by the will, leaving all 
questions relating to the trusts to be decided in the only proper 
tribunal. 

If an estate be conveyed to a grantee, capable of taking, upon 
trusts, the question of the validity of the trusts will not be en- 
tertained in a court of law. The land passes. If the trusts can 
be supported, they will be enforced in chancery, at the suit of 
the cestui que trust; if the trusts are void, they may be declared 
void by the same court, and the beneficial use of the estate re- 
claimed by the heir. In this case the land was devised to 
Fisher, Shaw, and Allen; a lawful conveyance with lawful par- 
ties, and apt words. It transmitted a title of some nature, upon 
trusts. The extent of the estate thus created is next to be con- 
sidered. The testator did not intend to give the trustees an 
estate in fee, and the statute of 1834 does not operate: 32 Ohio 
L. 41. He gives the land to them and their successors. 
This limitation over to their successors is void: for the law does 
not permit the transmission of an estate to successors, except in 
a grant to a corporation. The estate in the trustees is for life 
only, and there is no provision for the continuance of the title 
at law beyond them; after their death, it descended to his heirs, 
charged or not charged with the trust, as may be hereafter de- 
termined. Two of the trustees are living and one is deceased. 
The two hold two thirds of the estate, by virtue of the plain 
words of the will, and it remains to be considered whether the 
heir may, in this suit, recover the estate held by the deceased 
trustee. 

The testator's words are to " Fisher, Allen, and Shaw,'' to the 
survivors or survivor, to hold as joint tenants, and not as ** ten- 
ants in common." It is urged, that where an estate is limited 



Dec. 1840.] MooBE v. Abmstbong. 63 

in joint tenancy, by express words, the common law incident of 
.sonriyorship attaches, and that in this case, on the death of 
Shaw, his share is held by his co-tenants, as long as they hold 
their own. But it has long since been adjudicated, that the es- 
iate of joint tenancy as distinguished from a tenancy in common, 
lias no existence in Ohio: 2 Ohio, 306.* Consequently this doo- 
irine of surriyorship can not be used to protect this part of the 
title. Yet the testator intended to giye the land to the surviyor 
of the trustees, and eyery conyeyance should be construed to 
<»ny the intention of the maker into effect, if made consonant 
with the principles and forms of law. Laying out of yiew the 
•doctrine of suryiyorship, resulting from joint tenancy, an inci- 
^dent of the estate depending upon the law, and not on the act 
•of the party, we find the testator, by express words, limiting the 
•estate to the three trustees and the suryiyor. The estate well 
passes, by these words, to the suryiyor, for life. The remainder 
in fee is not disposed of. The freehrid is giyen to each trustee 
ioT life, and the remainder of the estate for life is giyen to the 
other trustees, and the remainder in fee descends to the heir. 
Such is the legal effect of the donation; and during the liyee 
•of the original trustees, or that of the suryiyor, the heir is pre- 
•duded from recoyezing the possession of the estate, by yirtue of 
his legal title. 

Without any reference therefore to the trusts which attend the 
•estate, the defendants axe entitled to judgment. 

Judgment for the defendants. 

Bs QD EBiw TO Ghabitabijb Ussb: See Metkodkt Okmrch y. BemingUMf 2S 
Am. Deo. 61, and note 07, where the cesei in this aeries on this eahjeot are col- 
Jeoted: a]80»5aR<ierM9iv.YF%«<e,29Id. 501,andnote6e9; ifbore y. ifoof^ LL 
417; Bwr y.SmUh, Id. 154; Brformed ProteaUxiU Dutch Oktarch y. MoU, 92 
Id. 618; (hard v. WaUaee^ Id. 85. The principal oase was referred to in IFIB- 
4cMia y. Ptahyterian Chureh^ 1 Ohio St. 603. 

Joint Tknakot has no ExnrxNCS'nr Ohio: Sergeani v. SteMerger^ 15 
Am. Deo. 553b and note. To this effect the principal case was dted in YFUmi 
V. Fleming, 13 Ohio, 73; and Tabler v. Wiaeman, 2 Ohio St 2ia The Jm 
4Kere9cendi is destroyed in Eentacky by statnto, in tmst estates as waQ as ia 
-an others: Samden ▼. Mcnimm^ 18 Am. Bee. 161. 



MooBE V. Abmstbong. 

[10 Omo, II.] 
IhsABiUTr Saving Heir from Operation ov Statutb of LnoTATioim la 

no protection to co-heirs. 
Party Saved can not Recover his Estate on Joint Demise with those 

whose rights are Iwirred; his recovery must be on a separate demise. 

1. SgrgMuU T. SUhihtratri B. O.. 16 Am. Deo. U3. 



64 MooBE V. Abmstbong. [Ohio. 

EnBonoDTF on an agreed case from Boss county bythe leasee of 
fhe heirs of one Forgus Moore. On the trial it was proTed that 
the defendants had been in adverse possession for twenty-one 
years, and also that Mrs. Fleming, one of the lessors of the 
plaintiff, had been a feme'covert since the commencement of 
the adverse possession. The questions for decision axe: 1. Does 
the disabiliiy of Mrs. Fleming prevent the running of the stat- 
ute against her co-heirs? 2. If not, can she recover her share^ 
of the estate on the joint demise from the heirs to the plaintifff 

H. H. Hunter and H. SUxnberry^ tor the plaintiflh. 

A. O, Thurman, for the defendants. 

Gbdies, J. Does the disabiliiy of Mrs. Fleming prevent the- 
statute from running not only as to herself, but as to all the^ 
other lessors? is the first question. And whatever doubt may 
once have been entertained on this subject, it is now conclusively 
settled both in Gbeat Britflon and the United States, that the stat- 
ute is saved in favor only of the person laboring under the alleged 
disabiliiy. This is the rule with respect both to coparceners 
and tenants in common. In Jackson v. Perry, ^ 4 T. B. 616» 
where the question was whether the statute would run against 
all the joint plaintiflfe, if any of them were free from disabiliiy. 
Lord Eenyon observed, that it was remarkable it was the first 
Mme the question had been made in the English courts. The- 
action was by partners, aud it was held that inasmuch as the 
suit, to be sustained at all, must necessarily be a joint one, that 
the statute ran against all the joint plaintiffs, although some^ 
of them were free from disabiliiy. In MdrsteUer v. McClean, 7 
Cranch, 156, which was an action by joint plaintifis, for the 
recovery of mesne profits, a similar decision was made. It was 
held that where once the statute runs against one of two parties 
entitled to a joint action, it operates as a bar to all. Great reli- 
ance, however, is placed upon the form of the pleading. There 
was a joint replication to the statute of limitations, and it waa 
said that inasmuch as it was bad in part, it was bad in the whole. 
These were, both of them, cases in which the interest of the 
plaintiffs was joint. But that is not the case in the present 
instance. The title is joint, but the interest is several and dis- 
tinct. Accordingly, in Langdon v. Bowlstan, 2 Taunt. 440, 
which was an action of ejectment brought by heirs, it waa 
held that the disabiliiy of one of them operated in her favor, 
although it did not prevent the running of the statute as to the^ 

1. Ptrry v. Jttckton, 



Dec 1840.] MooBE v. Abmstbokg. 6S 

oilier, and inaamiich as there yms a fleparate demise from the o ne 
who ms protected by the otatate, the plaintiff obtained judg^ 
ment for one half of the land. In Doe y. Barkadale, 2 Brock. 
436, this case was recognized as one of great authority, and the 
same decision was made upon precisely the same state of facts. 
It was an ejectment by heirs. The declaration contained both 
joint and several demises, and it was held that where one of 
BCTeral co-heirs, who labors under no disability, fails to bring 
his action within the time limited by law, although his right of 
reooveiy will be barred, it will not affect those who were under 
disability; and judgment was accordingly rendered for so much 
of the land as was claimed by those lessors who were within the 
saTing clause of the statute. 

In Sanfard t. ButUm, 4 Day, 810, which was also an ejectment 
by heirs, a difforent yiew seems to have been taken of the law, 
from what was entertained in the two former. There can be no 
question, it is said, that it is the rule of the common law, that 
on a joint suit, the disabilily of one will save the rights of all 
the others. Jackson y. Perry ^ and MarsteUer y. McClean, had de- 
cided that if the statute had barred the right of one it would 
bar that of all the others, and Langdon y. BowlsUm, and Doe y. 
Barksdale, had simply decided, that if the statute had operated 
to bar one or more, it would not prejudice the rights of the 
others. But Sanford y. BvMon goes much further, and decides 
that the rights of none are prejudiced. This proceeds on the 
idea that the action at common law must necessarily be joint. 
Bat as the interests of coparceners are seyeral, although their 
title is joint, it is plain that they may sue either on joint or sep- 
arate demises. In Sanford y. Button^ it is said, the practice 
peculiar to the state of Connecticut, has yaried the role on this 
subject, has authorized separate demises to be laid where copor- 
oeners sue, and that therefore, if one or more labor under disa* 
bility, there is no reason why, in that state, the protection should 
be ertended to the others. The rule with regard to the form of 
declaring, where joint tenants, coparceners, and tenants in com- 
mon sue, is sometimes thus expressed : that the two former being 
seized, per my etper tout, deriving by one and the same title, and 
haying a joint possession, must join in the action, and that ten- 
ants in common haying seyeral and distinct tities and estates 
independent of each other, must count upon separate demises: 
Boner Y. Juner, Ld. Baym. 726; Jformy. Barry, 1 Wils. 1; Heaih* 
erly y. WesUm, Id. 232. But we have seen that in Boe y. 

Bowlston, and Doe y. Barksdale, the demises were separate and 
AM. i>Bo. yok zzxyi— 6 



66 Moore v. Abmstbono. [Ohio, 

were from coparceners, and they were held to be the only ones 
on which they could recover. Perhaps it would be more correct 
to say, that joint tenants must join, coparceners may either join 
or sever: Jackson v. Sample ^ 1 Johns. Cas. 231; and tenants in 
common must (independently of the statute of Ohio, which 
authorizes them to join) sever. Even this last rule, so far as re- 
gards joint tenants and tenants in common, is, in practice, an- 
nulled in Great Britain; for if a joint tenant bring an ejectment 
without joining his co-tenant in the demise, it is considered as 
a severance of the tenancy, and he will be allowed to recover 
his separate proportion of the land. And if all the joint ten- 
ants join in the action, but declare upon separate demises by 
each, it is held that they may recover the whole premises; be- 
cause by the several demises the plaintiff has the entire inter- 
est in the whole subject-matter, although the joint tenancy ia 
severed by the several letting: Doe v. Pearson, 6 East, 173; 
Boe V. Lonsdale, 12 Id. 39; Doe v. Bead, Id. 57; Doe v. Fenn, 3 
Camp. 190. And so tenants in common might at common law 
join in a lease to a third person, stating the demise to the plaint- 
iff to have been made by that lessee. The English cases, how 
ever, consider joint tenants as standing upon different ground 
from coparceners or tenants in common. Their interest is con- 
sidered so indissoluble that if one or more are barred by the 
statute, all are barred. In Ohio, coparcenary and tenancy in 
common are the only species of joint estate known to the law. 
For the statute permitting partition among joint tenants, and 
more particularly the statute of wills, which permits them to 
devise, have by necessary implication abolished the estate of 
joint tenancy; by destroying its distinguishing feature, the right 
of survivorship, it has reduced it to a mere tenancy in common; 
so that the rule may be laid down generally, and without excep- 
tion among us, that where one of several persons having a joint 
estate, labors under a disability which is within the saving of the 
statute, he may take advantage of it, but none others can. 

In Kennedy v. Bruice, 2 Bibb, 371, it was held, that under 
the act of Kentucky of 1797, declaring that entries for land shall 
become void, if not surveyed before the first of October, 1798, 
with a saving to infants; if any one of the joint owners be under 
the disability, it brings the entry within the saving as to all the 
others. The question, however, does not appear to have under- 
gone much investigation, and the law undoubtedly was not so 
well settled then as it has been since. 

There is another class of cases in which it has been held that 



Dec. 1840.] HooBE v. ABHSTBONa 67 

the saTing in the staiate shall be extended to all, althongh one 
only may have labored under disabilily. Thns, in Kenedi/s 
Beirs ▼. Ihincan, Hard. 865, it was determined that if one of 
the persons against whom a decree is rendered be an infant, his 
infancy will prevent the statute of limitations from barring those 
who must necessarily join in a writ of error to rererse such 
decree. And the same decision, upon the same state of facts, 
was made in WOkins y. PhiUipa, 3 Ohio, 49 [17 Am. Dec. 579]. 
Judgment of severance maybe given in a writ of error, so as to 
permit those entitled, to sue upon it without joining the others. 
But there seems to be this distinction, that if anything may be 
recovered by two or more plaintiffs in a writ of error, judgment 
of severance can not be given; but where a writof error is brought 
by two or more plaintiffs to discharge themselves from some 
burden, judgment of severance may be given: Cro. Eliz. 649;^ 
Cro. Jac. 117,^616.' In WUkins v. PhiUips, something was to 
be recovered, and the alternative presented was, that either none 
or all should be barred. The court yielded to the most favor- 
able construction, and held that the rights of all were protected. 

There is still another question which is presented: whether 
the plaintiff can recover the interest of Elizabeth Fleming, when 
she is united with the other lessors who are barred. The in- 
terest of one coparcener or tenant in common, whose 'right is 
saved, may be recovered in ejectment; but then it must be on a 
separate demise. If the demise is joint, those who are protected 
stand upon the same disadvantageous ground as in Jackson v. 
Perry, and MarsteUer v. McClean, though not for the same 
reason. As it is competent to them to sue separately, if they 
choose voluntarily to confound their interests with that of 
others who have no rights, they must abide the consequences: 
Dicbey v. Armstrong, 1 Marsh. 39. In The Lessee of Adams i. 
Ihimer, 7 Ohio, 136,^ it was held that a i>er8on possessing title 
can not combine with himself in a joint demise persons who 
have no title. The only difference between the two cases, is, 
that in the former the defect was disclosed by the plaintiff, and 
in the present it comes out on proof by the defendant. But the 
evidence is as conclusive in the one case as in the other. In- 
deed it is much more common for a plaintiff to be defeated by 
the strength of his adversary's testimony than by the infirmilj 
of his own. 

Judgment for defendant. 

1. Eaatmg v. Jw ddoc*. . S. BgQM t. BmHM. 

a. Bhmiy.Sntiittm, 4. 7 Ohio. pt. a, li6. 



68 MooBE V. Abmstbono. [Ohi<v 

IjDaxATiQNS OF A£iTiONS.^The first fltatnto limitdng the time within whicb 
aotiaiui moat be broaght^ was peoaed in the thirty-aecond year of the reign of 
Henry YllL This statnte was confined to snita concerning and growing oat 
of land, and did not extend to peraonal actiona. Thoae who were withia 
*' the age of twenty-one yeara, covert^ baron, or in priaon, or ont of thia realm. 
of Bngland," were expreasly excepted from ita operation, and allowed aix 
yeara after the removal of the diutbility within which to ane. The atatate of 
21 Jamea L, o. 16, ia the one generally referred to, and the one that haa 
formed the baaii of atate legialatum. Tlda atatate extended the limitatioa to* 
peraonal aa well aa real actiona, and ahorfcened the time within which aoita 
moat be broaght. Any person "within the age of one and twenty yeara, 
/am -eo ver t t non eompoi mmtii^ impriaoned, or beyond the aeaa," waa allowed 
tan yean from hia or her coming of fall .age, diaoovertore, coming of aoond 
mind, enlargement cat of priaon^ or coming into the realm in which to bring: 
hia action; and the atatate waa inoperative (aa to him) daring the exist- 
ence of the disability. The atate atatntea, though not all following the lan- 
guage of the atatate of James, make generally the aame exceptiona. We will 
oonalder the nature and eflRsct of theae diaabilitiea in their order. 

iNTAiror. — ^The principal qneatioiia under thia branch of the atatate haw- 
ariaan where property had deacended to infant heirs, the atatate having com* 
menced to run againat the anceator» or where an infant waa a cestui que trmtit 
or had a guardian. The first question haa been differently decided, but the- 
weight of authority auataina the position that where the statute b^giua to run. 
against the ancestor, it will continue to run against the heir, though he is- 
under the disability of infan^: Daniel t. Day^ 61 Ala. 431; ^oaemon t. 
Browning, 31 Ark. 364; Bogera ▼. Brown, 61 Mo. 187; Jack§on t. Moore, 18-' 
Johns. 613; S. C, 7 Am. Dea 398; Henry ▼. Ceunon, 60 Pa. St. 297; Fayeomx 
▼. Prather, 1 Kott k M. 296; S. C, 9 Am. Dec 691; ffaynea v. Jonee, 2 
Head, 872; WUUanu ▼. flrsl Preabyierian 8oe., 1 Ohio St. 478. But in a 
few of the atatea, the contrary doctrine prevaila, and the atatate ceaaea to run 
during the minority of the heirs. In Georgia: Ladd ▼. Jaekeon, 43 Ga. 288^ 
and in Kentucky; BoiOh v. l%oma8f 7 B. Mon. 59; Machir v. May, 4 Bibb^ 
43; Sentney ▼. OverUm, Id. 445. But in Kentucky the exception ia confined- 
to cases where the infant takes by descent, and if he takea as a purohaaer*. 
the atatate continuea to run: PcOtereen v. Honed, 4 Buah. 654; nor can pur- 
chaaera take advantage of the infency of the heirs: May v. Slaughter, 3 A. 
K. Marah. 505. In Cook v. Wood, 1 McCord, 139, the court approved of the- 
decision in Fayaoux v. Prather, eupra, but held that where a party brought 
an action of trespass to try title, and died pendente lUe, the bringing of the^ 
action stopped the running of the statute, and consequently it would noi 
run against his minor heirs during their minority. 

There is also a diversity of opinion on the question as to how far the right* 
of an infant are affected when his property is in the hands of a trustee, ex- 
ecutor, or guardian; and the tendency of the decisions is to support the posi- 
tion that when the right of action vats in an executor, guardian, or trustee, 
who is under no legal disability, the statute will commence to run deepito- 
tbe disability of the minor, and if the claim is lost by the neglect of the rep- 
resentative to sue, the minor is barred : Wych v. Eaet India Co., 3 P. Wma. 
809; WUinerding v. Bvs8, 33 Cono. 67; Pendergraet ▼. Foley, 8 Ga. 1; Cole- 
man v. WaUser, 3 Mete. (Ky.) 65; Darnall v. Adams, 13 B. Mon. 273; Couch 
V. Couch, 9 Id. 160; Ronsan v. Anderson, Id. 423; May v. Slaughter, 3 A. K. 
Marsh. 506; Copae v. Eddina, 15 La. Ann. 628; Crook v. Olenn, 30 Md. 65; 
WeUbam ▼. Finley, 7 Jones' L. 228; BenneU ▼. WWiammm, 8 XML L. 121; 



Doc. 1 840.] Moore v. Abmstrong. 69 



y. Oteiff 8 Humph. 563. In some of the ttates the caaea hold that 
neglect in the repreeentatiTe to roe until the statntory period elapses does 
not affect the minor, and the latter may sne within the statntory time after 
lie comes of age. TUs view preraib in Alabama: Moore ▼. WcUliSt 18 Ala. 
A5S; in MiasiBsippi, Bacon y. Chray, 23 Miss. 140; PiUman v, McClellan, 65 
Id. 229; Eckford v. Evcuu, 56 Id. 18; Fearn ▼. Shirleij, 31 Id. 301; and in 
Texas, Laey v. Wiaiann^ fleij-s, 8 Tex. 182. 

Time does not bef^ to ran against a debt due by the father and natural 
totor to his children until his death or their majority, nor against a debt due 
hy the father's succession daring his children's mincnity : SeweU v. Mc Vay, 30 
La. Ann., pt. 1, 673; and where a testator devised certain slaves for the 
maintenance of a husband and wife and their children, a conveyance by a 
eecond husband of the wife's right in the slaves would not operate to bar the 
ehildren, and the statute of limitations would not ran in favor of the pur- 
chaser: Bankin v. Bratiford, 1 Leigh, 163, and the rale is the same where 
alavea are conveyed by deed of marriage settlement to the use of the hasband 
and wife for life, and then to their children, and the husband and wife dis- 
pose of the property: Baird v. Bland, 3 Munf. 570. And mfeme'-covert dying* 
leaving infant heirs, the statute does not b^gin to run against them till the 
tennination of the husband's estate by the curtesy: KoUenbroch v. Craerc^ft, 
M Ohio St. 584; Marple v. Myert, 12 Pa. St. 122; Mathenon v. Davin, 2 
Coldw. 443; but in Pennsylvania, the heirs have only the same time to enter 
that the wife would have had, after the termination of the tenancy by the 
«artesy» though they might be under some disability when the ri^^t accrued: 

Henry v. CairKn, 59 Pa. St. 297. Under the laws of Texas, where an infant 
marries, the disability of infancy ceases, and if a caose of action had accmed 
during the in&mcy, tiie statute begins to ran from the time of the marriage: 

WhUe T. Laiimer, 12 Tex. 61; Thompeon v. Oragg, 24 Id. 582. But in South 
Carolina, in Robertson v. Wwrdemant 2 Hill, 324, the coart held that the 
marriage of tk/eme^oole did not meige the disability of infancy. 

Ck>ysETfTBB. — A/eme'Covert must be actually married at the time of the 
accrual of the action, and the saying in the statute does not apply where the 
feme was discovert at that time, notwithstanding she may have subsequently 
married on the same day: WeUbom v. Weaver, 17 Ga. 267; and where Bjeme- 
^oU served the defendant for several years without making any express con- 
tract for compensation, the service continuing till the time of her marriage, at 
which time she was over twenty-one, and the husband and wife brought suit» 
Imt after the statutory time elapsed, it was held that the action was barred, 
as the cause accrued before marriage and the subsequent marriage did not 
atop the running of the statute: KUUan v. WaU, 3 Murph. 167. But if she 
marries before the right of action accrues, she comes within the saving; u 
where a legacy to a daughter was payable on her marriage, or when she ar- 
rived at full age, and she married before her arrival at age: Wood v. Biher, 
1 Paige's Ch. 616; or where a testator devised his whole estate to his 
widow, during her widowhood, and to his daup[hter, after her death, and the 
daughter married before the mother's death: Brown v. Cfraiqford, 9 Humph. 
164; or where a slave was given to A. for life, with remainder over to the 
/erne plaintiff, and at the death of the tenant for life plaintiff was an infant, 
and married: McLean v. Jackson, 12 Ired. L. 149; and where the grantor of 
a deed witii warranty was a tenant in tall, the first heir in tail after him 
being an infant, who died before the disability was removed, leaving on in- 
fant heir, who became covert before arriving at full age, but brought the suit 
three years after discoverture, she was held not barred: Doe ex dem. Oilliam 



70 Moore u Armsteong. [Ohio, 

T. Jageocks^ 4 Hawks, 310. Bat a aecond marriage does not prevent th» 
running of the statate, when it has commenced to mn on the death of the 
first hushand: McDonaid v. McOuire, 8 Tex. 361; although the statuta 
does not nm against the widow of a minor, who died nnder guardianship, 
when she remarried before the guardian had made his final account: Norton 
y. Thompson, 68 Miss. 143. Nor does it run against a married woman to 
whom property is left in trust after her marriage, in a case where she and 
her husband are suing in equity for the reoovery of the property: FlyfU v. 
ffcUcheU, 9 Ga. 328. And the rights of a married woman who is the 
equitable owner of slaves is not barred by the failure of the trustee in whom 
the legal title is vested, to institute a suit for their recovery until after the 
period prescribed by the statute of limitations: Feam v. Shirley, 31 Mi8& 
801. But a different rule prevails in North Carolina, where it was held that the 
coverture of a cestui que trust did not stop the running of the statute: Wdlborm 
v. Finley, 7 Jones* L. 228. If in the settlement between the trustee and tk« 
centui que trust, who isa/em«-«o/e, the trustee is guilty of fraud, and the oeste» 
que trust afterwards marries, but before the discovery of the fraud, the 
statute does not run against her daring her coverture: WeSbomv, Rogers, 24 
Ga. 668. Time does not ran during coverture against a debt due tiie wife 
by the husband: SeweU v. MeVay, 30 La. Ann., pt. 1, 673. And a husband 
and wife may maintain a suit on an administration bond in favor of the latter, 
though the bond was barred as to third persons: State v. Layton, 3 Harr, 
(DeL) 469; Layton v. SteUe, 4 Id. 8. And if a husband convey p i'opeity 
without the wife joining in the conveyance, the statnte does not oommenoe 
to run against her till the death of the husband: Stephens v. MeCormkk, 5 
Bush, 181; Jones v. Reeves, 6 Rich. 132; OuUer v. Motzer, 13 Serg. & E. 
356. A married woman who executed a mortgage of her land with her hus- 
band, is not saved by her coverture from the running of the statute against 
her title, in favor of the mortgagee: Ecmford v. F\ieh, 41 Oonn. 486. If a 
husband and wife, in possession of the wife's land, are disseised, they have 
an immediate right of entry, and from that time the statute rnns against the 
husband and also against the wife: MeQus v. Snowman, 21 Me. 201. In 
Georgia, formerly, a party marrying a' woman who had land, was entitled 
to reduce the same to his possession as his property, and the statnte ran 
during the coverture, and it was so decided in Shipp v. fFii|/SeM^ 46 Ga. 693; 
Cain v. Furlow, 47 Id. 674; as there the right of action had aconied before 
the change in the law. But the law has been changed in that state, and by 
the laws of 1866, pp. 146, 147, code of 1867, sec 1744, it was enacted that 
all property of the wife at the time of marriage, and all subeequentiy acquired, 
should vest in and belong to the wife. There have been no decisions under 
this statute, but its effect would probably be to prevent the statnte running 
as against a feme'covert, and make the rule in Georgia conform to the rule 
in the other states. The statute does not bar a married woman from recover- 
ing her separate property, which has been sold under execution against her 
husband, when her titie accrued during coverture: Michan v. IVyatt, 21 Ala. 
813. But a chose in action accruing to a wife vests in her husband, who 
may sue for and recover it in his own name, and hence the statute runs not- 
witikstanding the coverture: Co<A v. Lindsey, 34 Miss. 461. 

In most of the states statutes have been passed authorizing married women 
to faring and defend suits alone, where the action concerns their separate prop- 
erty. As the exception in the statute in favor of married women was baaed 
on their disability to sue during coverture, a question has arisen as to how far 
these statutes removing the disability affect the running of the statute. The 
■tatea befoM whose courts the question has been brought^ have decided differ* 



Dec 1840.] MooBE u Abmstbonq. 71 

codly. In Califoniia: WtUon ▼. WUfon, 36 CaL 447; Cameron ▼. Smith, 50 Id. 
303; minoU: Cag^wr t. Walrod, 83 HL 171, OTerraling Morrison y. Ncrman^ 
47 Id. 477, and NchU y, MeFourlandy 51 Id. 226; Maine: Brown ▼. Cousena, 51 
Me. 301; New York: ^aff ▼. BuUard, 52 Barb. 141; ZHtn^/n v. iSogre, 5 Lans. 
451; and in Ohio: Ong ▼. SumTner, 1 Cine. 424, the courts hold that the efifect 
of the Btatates is to take a feme-coveri oat of the exception of the atatata 
of limitations, in all cases where the hnsband is not a necessary party to 
the suit. Bat in Mississippi, MeLaughUn v. Spengler, 57 Miss. 818, and in 
North Gaiolina, StaU t. Trouknan, 72 N. C. 551, a contrary doctrine pre- 
▼ails, the ooarta holding that the passage of these acts does not take a feme' 
covert oat of the exception of the statute. In the latter case the ooart say: 
"This [the statate removing wife's disability to sue] seems to be a privilege 
l^iven to married women which may be osed for their advantage, bat a failure 
to ezerdae it is not to operate to their prejudice." And in Hearer v. WaUner, 
80 HI. 197, the oourt held that the act of 1861, authorizing a married woman 
to hold her separate property as though she were eole and unmarried, did not 
apply to estates by entireties so as to remove the disability of coverture, and 
did not give her any more rights in relation to that estate than she had be- 
fore, and henoe a statate did run against a woman who was tenant by entirety 
while the oovertuxe continued. The reasoning adopted by the court in BaU 
V. BuUard, wpret, is the most satisfactory. In that case the court was called 
apon to decide the effect of certain acts giving a femt'coveri a right to sue 
upon the exception iAfemes^overt in the statute of limitations. At page 146 
of the opinion the court says: "It was the disability, by reason of marriage, 
and not the marriage itself, that was the reason for the exception; and it was 
the disability, not the marriage, that was removed. As the law previously 
stood, marriage created this impediment, that the wife could not bring the 
action alone. * * * The statates referred to wisely change all this. In 
their effect, marriage was no longer a disability to the wife. The reason of 
the law ceasing the law itself ceases also." And the court decided that the 
statate ran against a/eme-eowH from the time of the accrual of the cause of 
action. 

iNSANrrr. — ^The saving in the statate applies to disabilities arising out of 
the nnsonndness of mind, and does not embrace disabilities to alien and con- 
trol one's estate which the law may create for the protection of persons who 
are f oond by an inquest to be of unsound mind, and whose estate is consigned 
to commissioners for its management and protection. The disability thus 
created may continue long after the insanity has ceased: Clarh t. TraUt 1 
Mete (Ky.) 35. Persons deaf and dumb axe frvmafcbde non compos mentis, 
and the statate does not run against them unless they are shown to possess 
sufficient intellect to know and comprehend their legid rights and liabilities: 
Oliver t. Berry, 53 Me. 206. And defendant beating plaintiff so that he be- 
came deranged, brings the plaintiff within the exception: Sasser v. Davis, 27 
Tex. 656; so also the statute does not run against one of extreme age, who is 
so imbecile as to be incapable of attending to any business: Porter v. Porter, 
3 Humph. 586. Where a deed was obtained by one standing in a confidential 
relation towards another of weak intellect, and the relation and the imbe- 
cility continued from the time of the act till the bringing of the suit to be 
relieved, the statute does not avail the party: Oldham v. Oldham, 5 Jones' 
Eq. 89; and a deed made by a person under a conservator, with the consent 
of such conservator but without authority from the county court, is void, and 
the statute does not run as against such person: ChnsuxM v. Butler, 3 Conn. 
227. So where a bill of slaves was made by a person non compos^ who con- 



72 MooBE t;. ABMSTBONa [Ohio. 

tinnes sndh up to the time of his death, the statate does not ran nntil sfter 
administration granted: Thurman t. ShdUmt 10 Yerg. 888. And where In a 
deed the names of a guardian and his ward, who was of nnsoond mind, with 
other vendors mentioned therein, are recited as parties conveying the interest 
of the ward, though neither the gnardian nor his ward ever sign the deed, it 
was held that the recital was sufficient to give all sahseqnent pmrchasefs no- 
tioe of an nnconTeyed interest in the ward, and the ward being of nnsoond 
mind and legally nnable to convey after arriving at her majority, the statate 
does not ran: Andermm v. Layion^ 3 Bush, 87. 

The statate having once began to run against a party, his sabseqaent in- 
sanity will not stop it: CUurh v. Trails 1 Mete. (Ey.) 85; AUm v. Moort, 2 
Allen, 306; Adammm v. StM^ 2 Mill's Const 260; LUuhAm v. NorUm, 36 Vt. 
670. Formerly the Iowa statate made no exception in favor of penons ww 
compos: Bhoriek v. Bruee^ 21 Iowa, 306; bat by the Bev. Code of 1880, see. 
2535, they are excepted from its operation, and are allowed one year after the 
removal of the disability, in which to sue. 

Iupbisonhxht. — ^But few cases have arisen under this branch of the statate. 
It has been held that slavery is a disability by imprisonment, and that the 
statute does not run as against a slave: Price v. Slaughter^ 1 Cine. 429; MaiUda 
V. Orenshaw, 4Yeirg, 299. And if a partyis in prison when the cause of action 
accrues, and he commences an action after the statutory period has elapeed, 
but during the continuance of the imprisonment, the statute will have no 
operation: PiggoU v. Rush, 4 Ad. & EL 912. But subsequent imprison- 
ment does not stop the running of the statute: Doe v. t/iMies, 4 T. &. 300. In 
Tennessee the disability of imprisonment is not brought forward from the old 
statate into the code, and hence does not save the statutory bar: Bledsoe v. 
Stohes, 1 Baxt (Tenn.) 812. 

Absence from the State. — ^The term " beyond the seas," as used in the 
statute of James, was construed literally; hence persons in Scotland were 
held not to be within the exception of the statute: King v. Waiher^ 1 W. Bl. 
286; and persons in any part of Ireland were held within its meaning and ex- 
ception: ATwnymoua, Show. 91. But by the 3 and 4 Wm. IV., c 42, 
sec. 7, it was enacted that no part of the United Kingdom of Great Britain 
and Ireland, nor any of the islands adjacent, should be deemed to be beyond 
seas. In the United States there has been some difference of opinion in 
the construction of this term, but it has been settled by the preponder- 
ance of authority, tiiat '* beyond the seas" means beyond the limits of 
a state, and not beyond the limite of the iia.tional government: Forbee 
T. Fooi, 2 McC. 331; S. C, 13 Am. Dec. 732; in the note to which case 
the decisions in the state and United States coorte are collected. The 
exception in the statate of James did not apply to absent defendants. 
*' It seems to have been agreed, that the exception as to persons being beyond 
sea, extends only where the creditors or plaintiffs are so absent, and not to 
debtors or defendants, because the first only are mentioned in the statute; 
and this construction hath the rather prevailed because it was reputed the 
creditor's folly that he did not file an original, and outlaw the debtor, which 
would havo prevented the bar of the statute:" 3 Bao. Abr. 514; JIcUl v. Wy 
bourn, Garth. 136; S. C, 3 Mod. 311; S. C, Salk. 420; Stoayn v. Stephens, 
Cro. Car. 333; Davis v. Tale, 2 Lutw. 950; Cheevetey v. Bond, Show. 202. 
But by the 4 and 5 Anne, c. 16, the exception was extended to debtors, and 
by the statute for the amendment of the law, 3 and 4 Wm. IV., c. 42, the same 
proviso is made. In Pennsylvania it was held that the proviso in the statute 
did not extend to defendants; who might therefore plead the stetute, though 



Dec. 1840.] MooBE v. Abmstbong. 73 

ihey were beyond the aeas during the time which oonstitated a hart NaihanB 
▼. Bingham^ 1 Miles (Penn. ), 164. And in New Jersey the etatatory exoeption 
-doee not include absent creditoiB, whether dtizene or foreigners. Its true 
intent is to consider the absence or non-residence of a debtor: Bearddey 
T. Soidhmayd^ 3 Green, 171; Taberrer y. DrtntnaU, 3 Harr. 263; HaU 
T. Lawrence^ 1 Zab. 714; in Wood y. LetUe^ 6 Vroom, 472, it was said that 
these cases must be regarded as the settled law of the state. In ICis- 
'sonri it was ako decided that the proviso in the statute preventing its opera- 
tion as against defendants who were absent, applied only to residents of the 
state at the time the action accrued: Fihe v. Clarh^ 65 Mo. 106; and the 
"Georgia courts have decided the same way: Bishop v. Saa^ford^ 15 Ga. 1; 
Plow V. Mahom, 32 Id. 263; Moort v. CarroU, 64 Id. 126. The same con- 
struction has been attempted in other states, but it is firmly settled in Eng- 
Isad as well as here that the exception extends alike to those who have never 
been in the state, and whose cause of action rose out of the state, and to 
these who are reddent but are absent: StrithorH v. Oraeme, 3 WUs. 146; 
Lc/onde v. Ruddock, 24 Eng. L. and Eq. 239; Comqua v. Moion, 1 GalL 342; 
Thomattm y. Odum, 23 Ala. 480; Wakefield v. Smart, 3 Eng. 488; UcUch v. 
Spqfbrd, 24 Conn. 432; Biihapv. Sa^ford, 16 Ga. 1; Pare v. Atakone, 32 Id. 
-263; Edward* v. Boat, 68 Id. 147; McMUlan v. Wood, 29 Me. 217; Von JSTe- 
mert y. Porter, 11 Mete 210; BtUger v. Boche, 11 Pick. 36; LUtU v. Blmi, 
16 Id. 369; BaU y. Little, 14 Mass. 203; WiUon v. Appteton, 17 Id. 180; 
.SMtite y. Meericar, 27 Mich. 84; Etitie v. BoiMm, 6 How. (Miss.) 268; 
Bower v. Henehaw, 66 Miss. 619; Sitsons v. Brieknell, 6 N. H. 667; Paine v. 
Drew, 44 Id. 306; Buggies v. Keeler, 3 Johns. 263; S. C, 3 Am. Dec 482; 
Orocker v. Are^, 3R. L 178. 

A question has also arisen, as to whether foreign corporations are within 
ihe exception. In Arkansas, it was held that a foreign corporation was not 
a " person b^ond the limito of this state,'* within the meaning of the statute: 
•Clarke v. Beuik qfMiseieaippi, 6 Eng. 616, but the better opinion seems to be, 
that the proviso includes foreign corporations, and that they stand on the same 
footing as other foreigners or absentees: North M, B, B. Oo, v. Akere, 4 Kan. 
463; Behmson v. Imperial likUng Co., 6 Nev. 44; OlcoU v. Tioga B. B. Oo., 
20 N. T. 210. In Vennont, the steute was held not to commence to run till 
the corpocation had attachable property in the stete, though there might be 
•directots and stockholders of the corporation there: HaU v. Vt. df Mcute, B 
B, Co., 28 VL 401; but where a corporation has a managing agent in the 
state, who exercises his authority openly as such, service of process may be 
iad on him, and the stetnte runs: Lcuorence v. BaUou, 60 CaL 258. In 
rauOmer v. JMaware and Baritem Caaud Co., 1 Denio, 441, the court held that 
the stetnte applied to natural persons only, and not to corporations, and in 
•OlooU v. Tioga B. B. Co., eupra, the same construction was contended for. 
The strongest ground for sustaining this position was, that a returning to a 
state, or a departing from it, were acte that could not be predicated of any 
but natural persons. The courts in pronouncing its opinion, argued that the 
same reasoning which brought foreigners within the proviso would apply to 
foreign corporations, and held that they were within the exception, and 
overruled FcuUkner v. Delatoare and Baritan B. B. Co. Denio, J., said: " The 
oourta have uniformly applied to stetntes of limitation a liberal construction, 
•and, in many instances, have accommodated the strict language of the act so 
as to effectuate the general intention of the legislature. * * * If the con- 
sequence is, that a corporation in auother state or country can not enjoy the 
advantage of our act of limitetion, the same is true of a natural person domi- 
Mied abroad and whose circumstv ces prevent his coming within our jurisdio* 



74 MooBE V. Abmstbong. [Ohio: 

tioo. mie policy of onr law is, that no penoiiB, natnral or artificial, who ar»- 
thus drennutaiicedy can impute laches to the creditors, or those claiming to 
have rights of action against them, in not pnrsning them in the foreign jnris- 
diotion where they reside. * * * In engrafting this policy upon the 
statute, the legislatare made use of general words, which, though adequate to 
describe a corporation, did not contain any language referring speoificiUly to a. 
debtor who could not, by its constitution, pass from one territorial jurisdiction 
to another." 

Under the statute of James, if a cause of action had once accrued, a subse- 
quent departure from the state did not prevent the continued operation of 
the statute: Plowd. 366; SmUh ▼. Hill, 1 Wils. 134; the same construction 
was adopted by some of the earlier dedsions in the United States: Peek v. 
RandaU, 1 Johns. 165; Winn v. Lee, 5 Ga. 217; and in Missouri, up to the- 
i>reeent day, absence or non-residence does not prevent the running: SmUh v. 
Newby, 13 Mo. 159; State v. Willi, 46 Id. 236; but these decisions rest upon, 
the language of the statute, which does not make an exception of absenteea 
or non-residents, and in the code of procedure of 1379, sec. 3222, they are- 
not included among the persons under disabilities. However, in DouihiU ▼. 
Stkuon, 63 Mo. 269, the court held, that the period during which a persoa 
was absent in the confederate states during the war was to be deducted, a» 
the courts of Missouri were dosed to him during that time, following the^ 
decision of Hanger v. Abbott, 6 WalL 532. In most, if not in all, of the other 
states, the statutes now allow certain periods of absence to be deducted in the- 
calculation of the statutory time. What periods of absence are deducted 
vary in the different states; we will consider these different periods as they 
have been interpreted by the courts. 

In some states, successive abeences, temporary or otherwise, may be added 
together and their aggregate deducted in computing the time the statute has- 
run. This is so in California: Rogers ▼. Hatch, 44 CSAl. 280; in Alabama : 8fnith*9^ 
Heir8y.Bond,SA}A,28Q; Orodber ▼. CZemente, 23 Id. 296; in Texas: ^uAer ▼. 
Phelps, 21 Tex. 551, and in New York: Harden v. Palmer, 2 R D. Smith, 172;. 
Ford V. Babeock, 2 Sandf. 518; OuUer v. Wright, 22 N. T. 472; Cole v. Jesaup^ 
6 Sold. 96. In Cole v. Jeeeup, 2 Barb. 369, it was held that the exception, 
covered only a single departure and return, and that then the statute ran not- 
withstanding subsequent departures; but in 6 Sold. 96, the case coming n^ 
on appeal, the court expressed the opinion that successive absences could be- 
aggregated, but the decision was affirmed, as the appellate court came to the 
same condusion on another view of the statute. And Ford v. Babcoch, supra, 
expressly denies the conclusion of Cole v. Jeeaup, 2 Barb. 309. In most of the^ 
states, however, temporary absences are not to be excluded. In Massachu- 
setts temporary abeences, however long continued, if they are not of such a 
character as to change the domicile, are not to be deducted in computing tho 
time: Langdon v. Doud, 6 Allen, 423; CoUester v. HaUey, 6 Gray, 517. The 
same rule prevails in Minnesota: Venable v. Paulding, 19 Minn. 488, and in. 
Maine, it was hdd that so long as a debtor has such a residence in the state^ 
as to make him subject to the jurisdiction of its courts, the statute continues- 
to run despite absence: Bucknam v. Tliompmm, 38 Me. 171; Drewv. Drew, 37 
Id. 389. Other states uphold the theory that temporary absences do not pre- 
vent the operation of the statL.te. Thus, where a defendant. domiciled in. 
Connecticut, publidy left his family and property there and went out of the- 
state at different times to one of the southern states, each time for a period 
of eight months, intending a temporary absence only, without abandoning or 
intending to abandon his domicila, he was held not to be absent, within th» 
meaning of the statute, and these periods were not to be dednetad: Sage ▼» 



Dec. 1840.] MooBE v. Arbistrong. 7& 

Hatdey, 16 Goiin. 106. And if a party having a home in MiasiBflippi, goea 
•broad for his health, staying several months, the statute ccmtinaes to run: 
Lent V. Pintard, 50 Hiss. 265; Fisher v. Fisher, 43 Miss. 212. So, also, if a 
party goes to Calif omia, intending to return and stays several months: Chith 
V. Robards, 20 Mo. 523; though if a person leaves MiBsouri, intending to resida 
in another state, the statute ceases to run: Lackland v. SmUh, 5 Mo. App. 
153. And where a citizen of Kansas, having a furnished house there, was per- 
sooally out of the state attending to his duties as United States senator, the 
period of his absence should be deducted: Lane v. NaL Bank qf the Metrop- 
oUsj 6 Kans. 74; nor where a party is absent for nine years, shall the period 
of his absence be computed: Poatan v. Smithy 8 Bush, 589. And absence 
from the state as a volunteer soldier or officer constitutes an absence within 
the meaning of the proviso excepting the time during which the defendant 
is absent on " public business:" Ortgg v. Matlock, 31 Ind. 373. Though ia 
Orakam v. Commonwealth, 51 Pa. St 255, it was held that where a defendant 
sntered into the military service of the United States, his absence was tem- 
porary and did not prevent the statute's running; and in O'Neal v. Boone, 53- 
IlL 35, it was decided that where the plaintiff voluntarily entered and re- 
mained in the confederate lines, the statute was not suspended. But where 
a party was in the British lines during the war and departed with the British 
at the dose of the war, he was held to be out of the state: Sleight v. Kane^ 
1 Johns. Gas. 76. 

Some states make the fact as to whether legal service can be made on the 
defendant or not, the criterion in determining whether absence will prevent 
the running of the statute. In these states the rule is that if a debtor, 
though penonally absent from the state, so maintains his residence within it 
that procesa may be served upon him, he is not absent in the meaning of the 
statute. This view prevails in Indiana: Ntblack v. Ooodman, 67 Ind. 174; 
Illinois: 4 GUm. 125; Iowa: Penlejf v. Waterhouae, 1 Clarke (Iowa), 498; Ne- 
braska: BlodgeU t. Utley, 4 Neb. 25; Vermont: HaekeU v. Kendall, 23 Vt 
275; HaU v. Kamnith, 28 Id. 791; Miaaouri: Miller v. Tyler, 61 Mo. 401; and 
in that case it was held that where one departed from the state, leaving a 
residence and family therein, and afterwards the family abandoned the dwell- 
ing-place and removed to the house of a relative in another county, he will 
be held to have no usual place of abode where service of process might be had 
upon him, and hence the statute ceased to run; and that a party leaving haa 
attachable property there makes no difierence: Lackland v. Smith, 5 Mo. App, 
153. In New Hampshire, a defendant who had a domidls in New Hamp- 
shire, but went out of the state in the spring to get work and returned in 
the autumn, and did so for some years, leaving his wife there in a house 
hired for her, where he supported her and paid taxes, coming home on Satur- 
days and returning on Sunday, was held to be protected by the statute be- 
cause he at all times had a domicile within the state at which service of sum* 
mons could be made: OUman v. Outts, 27 N. H. 348. In the same case, 
coming up at a previous term, the court decided that any and every absence 
from the state, temporary or otherwiBe, which is such tiiat the creditor can 
not during the same make legal service, must be reckoned, and that the 
itatute ceased to run during each and all of the absences: S. C, 23 N. H. 
376; which opinion was approved on the second hearing. And the same prop- 
osition was laid down in Bell v. Lamprey, 52 Id. 41; where a party leavea 
the state with his family on a voyage, expecting to be gone three years, leav- 
mg property in the state in care of his father-in-law, the statute does not run; 
Ward V. CoU, 32 Id. 452; and the time of the debtor's absence from the state^ 
which continued many years without interruption, is to be excluded in com* 



76 MooBE V. Abmstbong. [Ohio. 



pnting the time for the commenoement of personal actiooB, thoa^ hU 
4Uid child oontinae to reside on his homestead farm: Brown ▼. RoiOi^ 44 Id. 
^46. 

In Georgia, it was decided that where a defendant removed from the state, 
with an intention not to return, but sabsequently changed his purpose, and 
•did retnm, the time of his absence should be deducted in ascertaining if the 
statutory time had elapsed, though the court said it would be otherwise if he 
was simply temporarily absent: Stdgvaick v. Cftrdmg, 65 Ga. 264. In Moore 
▼. CanroU, 54 Id. 126, a defendant had made a note in California and snbse- 
•quently removed to Georgia, where he was sued; the court held that the pe- 
jriod of his non-residence should not be deducted, as he had not removed 
from the state since the making of th» note, so as to bring him within the 
•exception of the statute. The statute will not run so as to bar recovery for 
real estate, notwithstanding the non-resident may always have had a tenant 
in possession: Htaton v. Fryherger^ 88 Iowa, 185; nor would it run against the 
■absent holder of a note, though his agent in the state had po s s e s s ion of it: 
WiUon V. KelUTy 8 Ark. 507. 

A discussion of the question of absence from the state involves a further 
-inquiry as to what constitutes a return into the state so as to remove the bar 
•of the statute. Generally a notorious and open return, so that the debtor 
may be sued, is sufficient to remove the bar of absence: Ingralutm v. Bowk^ 
^ Miss. 17; FML v. Babcock, 2 Sandf. 518; Fowler v. Hvmi, 10 Johns. 464; 
•even though the creditor did not know of the return: Didkr v. Davidaon^ 2 
^Sandf. Gh. 61; S. C., 2 Barb. Oh. 477. But where the debtor retained pri- 
vately, and secreted himself, except on Sunday, it is not a return withiathe 
Hwntemplation of the statute: WhUe v. Bailey, 3 Mass. 270; nor where a de- 
iendant, residing in New Brunswick, frequently but temporarily comes into 
Maine to the creditor's place of business, with attachable property, and paid 
iiim money: ffaeher v. Sverett, 57 Me. 548; nor where the debtor comes a few 
miles into the state with attachable property, which, is removed on his return 
-to his own dwelling, the creditor not knowing of it: Croeby v. WyaU^ 10 
•Shop. (Me.) 157; and in HiU v. BeUowe, 15 Vt. 727, the court rendered a sim- 
iUr decision. A return must he such that the debtor is subject to the process 
of the courts. Hence a removal to the Indian nation is not a return, aa the 
process of the courts does not run there: Smith v. Heirs qf Bond, 8 Ala. 386. 
And the statute runs, though the creditor is ignorant of the return, where 
4iuch ignorance was not occasioned by the improper conduct of the party re- 
turning: Smith V. Newby, 13 Mo. 159. Though in Campbell v. White, 23 
Mich. 104, the court held that the debtor must either show that the return 
^as known to the creditor, or that it was so protracted and notorious that 
-the creditor might, with reasonable diligence, have learned of it. In Robert 
•«on V. Smith's Heirs, litt. Sel. Cas. 296, the court said that by merely com- 
ing into the state, a non-resident loses the benefit of the statute. 

Cases have ariseu involving the question as to how far the statute runs 
when a non-resident has a place of business within the state. Wherever 
this question has been raised, the courts have held that the statute does not 
jrun while the party is in the state on business: Rochwood v. Whiting, 118 
Mass. 337; Edgerton v. Wcuihter, 9 Neb. 500; Burroughs v. Bloomer, 5 Denio, 
532; Basftelt v. Bassett, 55 Barb. 505. Thus, where the cause of action arose 
in Iowa, where the defendant then resided with hia family, and he carried on 
business in Plattsburg, in Nebraska, where he was present every day for 
4iearly three years, and subsequentiy removed to Plattsburg, it was held that 
the statute did not run against him till his removal: EdgerUm v. WadUft, 
^supron And the same conduaian was arrived at in Bassett v. Baasett, enpra^ 



Dec. 1840.] Moore v. Armstrong. 77 

wliflre the defendant resided and kept hooae in New Jersey, and transacted 
busiDese in New York on week days, returning home in the evenings. The- 
courts can not^ by oonstniction, add the disability of absence to the statute, 
and it ia not an exception, unless expressed: See note to Morg€m t. Bolnnion^ 
13 Am. Baa 968, where this subject is fully discussed. 

How VAs Disability of Okb Affeots Rights ot Othxbs.— In Wngland, 
in £oe ▼. Rowlakm, 2 Taunts 441, it was decided that if an estate descend to- 
parceners, one of whom is a /eme<overi, the disability did not prevent the- 
nmning of the statute aa to the other paroener, who would be barred if she 
failed to enter in the statutory time. And in Perrif v. JaekBon, 4 T. B. 516^ 
where one partner was beyond seas, and the action was brought within the- 
statutory time from his return, though not within the statutory time from> 
the acomal of the action, the court held that the action was bured, on the 
ground that one of the plaintiift could have acted for the others and used 
their namee in an action, and that he should have done so. But in Fannm 
V. Andertonf 14 L. J. Q. R 282, the absence of one co-contnMstor beyond the- 
seas was held to prevent the statute's running. The court referred to the- 
de c idon of Perry v. •Tadbson, and distinguished that case from the one before 
it, saying, ''With respect to defendants the reason [of Perry v. Jackson] doe» 
not apply; the phuntiff can not bring the absent defendant into court by any 
act of his; and therefore, if he be compelled to sue those who are withia 
seas, without joining those who are absent, he may possibly recover againsi 
insolvent persons, and lose his remedy against the solvent ones who are ab- 
sent. On the other hand, if he sues out a writ against all, and either contin- 
ues it without declaring, or proceeds to outlawry against the absent parties,, 
and declares against those within seas, he is placed in precisely the same sit- 
uation as if the statute of Anne had never passed, and is obliged to incur 
fruitless expense, the avoiding of which seems to have been the object of the 
statute of Anne.*' • 

In the United States the states differ as to the effect of the disability of one 
on the rights of the other parties in interest. Where the interest is joint, the 
preponderanoe of authority supports the proposition that if the right of one ia 
barred, the rights of all are barred, notwithstanding some may labor under a 
disability: Freeman on Co-tenancy and Partition, sec. 375; Hardeman v. 
SinUf 3 Ala. 747; Jordan v. McKenxie, 30 Miss. 32; Siden v. Prior, 3 Murph. 
577; Morgan v. Heed, 2 Head, 276; Weils t. Bagiand, 1 Swan, 501; Ma/rsid- 
ler V. McClean, 7 Cranch, 156; Roberts v. Ridgeway, litt. SeL Gas. 304; MUner 
V. Daois^ Id. 436; Robertsim v. SmUh^ Id. 206; S. C, 12 Am. Dec. 304: Dickey 
V. Armstrong t 1 J. J. Marsh. 30; Simpson v. Shcmnon, 3 A. K. Marsh. 462; 
AOen V. Real, Id. 554; Riggs v. Dooley, 7 B. Mon. 236; Clay v. Miller, 3 Mon. 
146; Moore v Calvert, 6 Bush, 356; but see Mayy, Bennett, 4 litt 311; Ken- 
nedy v. Duncan, Hardin, 365, and IlarUm v. Seaton, 18 B. Mon. 312. " The 
statute protects the rights of those who are incompetent to protect them- 
selves, but where some of the parties are competent they ought to take care 
of the interests of all by prosecuting a suit within time:" per Taylor, C. J., 
in Riden v. IVion, supra. In some states a contrary rule prevails, and the dis» 
ability of one of several parties jointly interested will protect aU: Wilkins v. 
Philips^ 3 Ohio, 40; Sturges v. LongwoHh, 1 Ohio St. 544; Riddle v. RoU, 24 
Id. 572; Priest v. Hamillon, 2 Tyler, 44. In South Carolina the same rule 
seems to prevail: Lahife v. Smart, 1 Bailey L. 102; Thomson v. Gaillard, ^ 
Rich. 418; though in Henry v. Stewart, 2 Hill (S. C), 328, where several 
joint plaintiffs brought an action of trover, the court held that one plaintiff 
not barred might recover his interest and the others faiL In New York the 
abienoe of one Joint debtor from the state was held to suspend the statute^ 



78 MiLFORD & C. T. CJo. V. Brush. [Ohio, 

though a oo-debtor remidned In the ttate: BogeH ▼. VtrmU^a^ 10 N. T. 447; 
Dwny V. SmUh, 18 Id. 667, overroling Brfnon v. DdafiM^ 1 Benio, 445, which 
held a contrary doctriDe. 

Where the rights of the parties are not joint, the cases are uniform, and 
hold that the disability of one will prevent the operation of the statute as to 
him, but that those who are not under a disability will be barred; Wilder v. 
MwjOt 23 Ark. 325; Chray ▼. Trapnall, Id. 511; Danid ▼. Daif, 51 Ala. 431; 
JDoolUtU y. Blake$ley, 4 Day, 265; San/ard y. BuUtm^ 4 Id. 310; Bryan v. 
Bmman, 5 Id. 211; Jordan v. Thomlon, 7 Oa. 517; Pendergrcut v. OuUaU, 
10 Id. 218; Peten y. Jone$, 35 Iowa, 512; Thonuu y. Maehir, 4 Bibb, 412; 
J>tn v. Blacky 5 Ired. L. 463; Moort v. Armdcng^ 10 Ohio, 11 (the principal 
oase); ^ronstmy. Adanu, Id. 135; Williama y. Ilrst Pretbyterian 8oc.<, 1 Ohio 
St. 478; Bcarrowa v. Navee, 2 Teig. 227; Wade y. JohMon^ 5 Humph. 117; 
StiOvaU y. CaniMcAae^, 52 Tez. 383. 

Wherk all Parties Labor under Disabilities, or SEyERAL Disabili- 
ties Exist in One Party. — Where all parties in interest labor under dis- 
abilities, the statute does not begin to run till the disabilities of all hayo been 
removed: ShiUe v. Wade^ 5 Yerg. 1; MagUrs v. />ttnii, 30 Miss. 264; 8oay v. 
Boom, 4 Sneed, 09; Claiy v. MiUer, 3 Mon. 146; WdU y. Bagland, 1 Swan, 
601; Moore y. Calvert, 6 Bush, 356. A party is entitied to all the disabilities 
existing when the cause of action accrued, and if several disabilities exist 
together in a party when the cause of action accrues, the statute does not be- 
gin to run till aU the disabilities have terminated: Jaekeon v. Johneon, 5 
Cow. 74; S. C, 15 Am. Dec. 433; BuUer v. Howe, 13 Me. 397; Dugem v. 
OiUinge, 3 GiU, 138. 

Subsequent or SuooESSiyE Disabilities. — It is settled beyond dispute, 
that if the statute has once commenced to run, no subsequent disability can 
«top it; nor can any intervening disability be added to one existing when the 
cause of action accrued, to extend the statutory period for bringiug actions. 
This principle is so well settied, that a further citation of authorities is un- 
necessary. It must, however, be taken with the limitation provided for in 
many states in regard to subsequent absences. Some of the courts have 
added another limitation to this doctrine. These cases hold, that where the 
subsequent disability grows out of some positive statutory enactment of the 
legislature, the time of such disability should be excluded: Plantera* Bank v. 
Bank qf Alexandria, 10 Gill k J. 347; Dowell v. Webber, 2 Smed. & M. 452; 
Mosea v. Jones, 2 Nott ft M. 259. But the want of administration on an 
estate does not prevent the running: Brown v. Merrick, 16 Ark. 612; Byrd 
V. Byrd, 28 Miss. 144; Nicks v. MarUndaU, Harper's L. 135; S. C, 18 Am. 
Dea 647; though where in consequence of a controversy as to the xnrobate, 
letters testamentary were not granted till ^ve years after the creation of the 
debt, and the statutory period expired after the letters were issued, but be- 
fore the creditors could compel an accounting, it was held that the claim 
not barred, in Skidmore v. Bomaine, 2 Brad. (N. T.) 123. 



MniFOBD AM) G. T. Go. v. Bbtoh. 

[10 Ohio, HI.] 
COBPOkATION IS SUFnCISNTLT ObOANIZED TO BiND SUBSCKIPnOSf to the 

capital stock, when the parties mentioned in the charter have, in pursu- 
ance of its terms, by written articles of association, organized themselves 
and opened books of subscription. 



Dec. 1840.] MiLFORD & C. T. Co. v. Brush. 79 

SVBSCSIFTXOH IS HOT VOZD FBOM MiSTAKB IK G0BP0&4TE N^MZ, and the 

oontnet will operate in favor of those for whose bene6t it was intended. 

Ajondmsnt or Act ot Inoobpobation will kot Ezonsbatk Pbxtioits 
SuBSOBiBKBS fiom their snbscription, when the change produoed by the 
amendatory act is bat trifling. 

Ijmhojltubs mat Waits Fobveitubx or Cobpobatb EioHTSy and an 
act extending the time of the oommencement of certain work amonnte to 
a waiver of the forfeitnre incorred by the corporation's failing to com- 
mence the work within the time prescribed by the act of incorporation; 
and the liability of stockholders is not affected by the extension. 

Assumpsit. In 1882, fhe Ohio legislature incorporated several 
indiTidnals as the Milford and Ghilicothe Turnpike Company, 
for the purpose of constmcting a road from Milford to Chili- 
<x>the. The corporation was to commence work within three 
years, otherwise the rights granted by the charter were to cease. 
The charter was accepted, the company organized, and books 
opened. The defendant subscribed for four shares. The com- 
pany failed to commence work within three years, but in 1835, 
the l^pslatnre, by an amendatory act, allowed them three years 
further time, in which to commence work. The plaintiff insti- 
tuted this suit to recover seven installments due upon this sub- 
scription. 

Thurman and Taylor ^ for the plaintiff. 

Bruek and Leonard, for the defendant. 

Httghoock, J. The plaintifffl in this case having shown the 
act of incorporation, the acceptance of that act, the opening of 
books of subscription, the subscription by the defendant, and 
the calls made for installments on the stock so subscribed, 
make out a prima facie case and right of recovery, unless the 
points of defense raised by the defendant are such as to defeat 
that right. 

The first objection made by the defendant to the right of ac- 
tion is, that the subscription is a nude pact, as no engagement 
was or could be made on the part of the company so as to create 
mutual engagements. This exception is founded in part, if not 
principally, upon the hypothesis that there was no corporation 
in existence at the time the subscription was made. But this is 
a mistake. By the second section of the act of incorporation, 
the company, that is, the individuals named in the act, or '' so 
many of them as choose to do so, by written articles of associa- 
tion,*' are authorized to organize themselves, and open books of 
subscription: 30 Ohio L. 239. Such organization was had be- 
fore the books were opened, whereby the act of incorporation 



80 MiLFOBD & C. T. CjO. v. Brush. [Ohio^ 

was xeoognized and fhe company became a body coxpoxate. 
Under these circomstancesy there was sufficient mutoalily in the 
contract, and the subscription oUigatozy on the defendant: 
Ooahen Turnpike Co. t. Hurtin, 9 Johns. 217 [6 Am. Dec. 278]; 
Dutchess CotUm Man. Co. t. Davis, 14 Id. 238 [7 Am. Deo. 469]. 
But even should it be considered that the act of incorporatioa 
did not take effect until the company was organized by an eleo- 
tion of officers by the stockholders, still we should hold thai 
the subscription would be binding. A sufficient consideration 
would be found in the anticipation of profits in toUs to be re- 
ceived from those using the road. 

The next objection is, that the contract was not with the 
plaintiffii, but with a " president and directors" thereafter to be 
chosen or appointed. There can be no doubt as to the intent 
of this contract. The object of the subscription was to aid 
" The Milford and Ohilicothe Turnpike Company*' in the con- 
struction of a road. The object being weU understood, the sub- 
scription can not be avoided on account of a mistake made in 
the corporate name, and the contract will operate in &Tor of 
those for whose benefit it was intended: Commissioners of (he 
Canal Fwnd t. Perry, 5 Ohio, 56. By this subscription, in- 
formal though it might have been, the defendant became a 
stockholder in the company, entitied to all the privileges and 
immunities of any other, and like any other stockholder is bound 
to pay according to the legal efEect of his subscription. Another 
objection made by the defendant is, that the suit, if sustained 
at all, must be in the name of the " president and directors of 
the Milford and Chilicothe Turnpike Company/' If we are 
correct in supposing that this contract is, in law, a contract with, 
the '' Milford and Chilicothe Turnpike Company," then the suit 
is properly brought in the name of that company: Conimis- 
sioviers of the Canal Fwnd t. Perry, Id. 

It is next claimed that the defendant was released from the 
obligation of his subscription by the change made by the amend- 
atory act, in the route and in the grade of the road. That there 
might be such change made in the route of a turnpike road aa 
to exonerate those who had previously subscribed for its con- 
struction, will not be denied, but that cTery trifiing change so 
long as the termini remain the same, will have this effect, can 
not be admitted. By the original act of incorporation, the line 
of the road is to be " on the nearest and best route," between 
Milford, in the county of Clermont, and Chilicothe, . in the 
counly of Boss. By the amendatory act the termini of the road 



Dec 1840.] AbLFOBB & C. T. Co. v. Bbush. 81 

xemain the eazne, bat Bainbridge and Hillsborougli are made 
pointB in the route. Now whether here is in fact any change in 
the Toate does not appear. From anything before the conrt 
these two places may be actually on the line of the '' nearest' 
and best ronte." As a matter of fact we know that they are, if 
not exactly, Teiy nearly on a line from Milf ord to Chilioothe. 
It stOl remains to be shown that there has been any material 
change in the ronte of the road, and until it is shown this court 
will not presume it. So far as respects the angle of the road 
lath the horizon, it will be found that there is nothing in the 
amendatory act absolutely compulsory. If the nature of the 
ground be such, that it be practicable to reduce this angle to 
two degrees, it must be done; if not, the road may be con- 
structed at a greater angle, not however, in any event to exceed 
four and one half degrees. 

It is again claimed, that the defendant is discharged from his 
subscription in consequence of the failure of the corporation to 
commence work upon the route within three years next after the 
act of incorporation was passed. The eighteenth section of the , 
act is as follows: " If said company shall not within three years 
from the passage of this act proceed to carry on said work, or 
shall not within ten years thereafter, complete thirty miles of 
said road, according to the true intent and meaning of this act, 
then and in either of those cases, all tl^e rights, liberties, and 
privileges granted by this act shall cease." It is contended by 
the defendant that the true intent and meaning of the words, 
"cany on said work," is, that the corporation shall actually 
commence operations upon the road by manual labor, while a 
different construction is insisted upon by the plaintifb. We ap- 
prehend, however, that it is not necessary for the purposes of 
this case definitively to determine what is the true construction of 
the phrase. AsBuming for present purposes that the defendant 
is correct as to the construction, how stands the case? 

The first step to be taken was to organize the company, that 
it might take the benefit of the act. Being so organized it be- 
came a body corporate and politic, a corporation possessed of 
all the powers, rights, liberties, and privileges granted by the 
act by which it was created. So long as it complied with the 
requisitions of its organic law, it would not be divested of any 
of these powers, rights, and privileges granted. It had certain 
duties to perform. One of these was to commence work upon 
the road within three years. This was not done, and what is 
the consequence? Did the corporation cease to exist? Weap- 

Am. Dbo. Vox.. XXXVI— 6 



82 Rhodes v, Cttt of Cleveland. [Ohio, 

prehend not. The corporation must hare been in existence be- 
fore it could have commenced the work, and haying failed to 
commence it still continued to exist. But the failing was good 
ground of forfeiture, and upon a proper proceeding before this 
court, such forfeiture would have been adjudged. But the 
supreme power of the state might waiye the forfeiture, and the 
case shows that it was waived. The legislature at the instance 
of the corporation, and it must be remembered that the defend- 
ant was a member of this corporation, gave further time within 
which to commence the work. By this law the corporation was 
not divested of any right, but had in fact an additional right 
conferred upon it. It is placed precisely in the situation it 
would have been had the time, originally prescribed, within 
which to commence the work, been fixed at six years; and of 
course the obligation of the defendant remains unchanged. 
Judgment for the plaintiff. 

LiABiuTT or Stookholdsb on his Subscription: See note to J^nmUm 
CfloM Co, y. Alexander^ 9 Am. Dec. 96, where tlus sabject is diacaaaed at 
length: Bend ▼. Stuquehanna Bridge Co,, 14 Id. 261. Where a corpontion 
obtains an act extending or otherwiae materially changing the objecta for 
which it was originally incorporated, a atockholder who haa not aoaented to 
the change is not liable for additional aaseaamenta in furtherance of such addi- 
tional object: Union Locke etc, v. Towne, 8 Id. 32. But aubaeriptioiia to a 
corporation for the locaticn of a pabUc road are subject to the power of the 
legidatnre to change the loofition of the road at an intermediate pofait» mUeaa 
the contrary be ezprsMed: Inrin y. Twmpike Co., 23 Id. 68. 



Rhodes v. Cm of Cleveland. 

[10 Omo, U9.] 
OoBPOftAixoK IS Liable io& Dajcaois for consequential injury ariring tnm 
an act done in the exercise of its ordinary powers. 

Wbit of error to the common pleas of Oujahoga county. 
The plaintiff brought an action on the case against the defend- 
ant for cutting ditches and water-course, so as to wash away his 
land. The court charged the jury, that in order to sustain his 
action, the plaintiff must show either that the city acted illegally, 
or if it acted legally, that it was guilty of malice. The jury 
found for the defendant, and pbiintiff appealed. 

/>. Pariah, for the plaintiff. 

H. B. Paine, for the defendant. 

L4MX, C. J. The question arising from the record is wheibeK 



Dec 1840.] Rhodes v. Gmr of Cleveland. 83 

a corporation is liable to repair damages, for a consequontial in- 
jury, arising from the exercise of its ordinary powers. In the 
elder cases, while courts were hampered by the notion, that cor- 
porate acts were to be performed under the authoriiy of their 
seals, no suits like the present were held to be maintainable, 
but the agents only were regarded as responsible to person in- 
jured. Since the great increase of corporations, and since so 
much of the business of the world is transacted through their 
agency, it becomes necessary that courts should meet their ex- 
panding powers, by an extension of the limits of their liability. 
And one of the peculiar benefits which our system of jurispru- 
dence possesses, is its capacity of enlargement and adaptation to 
the exigencies of the varying forms of social life. That the 
rights of one should be so used, as not to impair the rights of 
another, is a principle of morals, which from very remote ages 
has been recognized as a maxim of law. If an individual, exer-> 
cising his lawful powers, commit an injury, the action on the 
case is the familiar remedy: if a corporation, acting within the 
ecope of its authoriiy, should work wrong to another, the same 
principle of ethics demands of them to repair it, and no reason 
occurs to the court, why the same remedy should not be applied, 
to compel justice from them. 

In a case like the present, I do not look so much for prec- 
edents, as to the following out of incontestable principles: for 
the cnrxent of decisions, for a long time, has been to increase 
the liabilities of corporations. Every year furnishes new exam- 
ples, of the extension of remedies against them, where an injury 
is done, and remedies are applicable. It does not therefore ap- 
pear to me to be a sufficient reason, against sustaining this suit, 
that in other states the remedy is not extended so far. But no 
decision of our own state goes to deny the right to the present 
action. In the two cases reported in 4 Ohio, 500,' 514,' we held 
the corporation of Cincinnati liable for injury done by grading, 
either illegally or maliciously. This was regarded as canying 
the law beyond decided cases. In ScovU v. Oeddings, 7 Ohio, 
^1,* we hdd the agents of the trustees of the town not liable, 
because they were acting within their jurisdiction. In Wchox 
V. The City of Cleveland, 8 Id. 543 [32 Am. Dec. 780], we held 
the ciiy not liable by action, for an injury by grading, because 
the statute conferring the power, prescribed a form of assessing 

damages, by which compensation might be made. 

■ ■ < ' • < — — i^— —^^^^^^-^—^^j^ 

1. Ooodioe ▼. CineUmaH ; S. 0., 23 Am. Dm. 764. S. BwifUk t. CinoiMMtt. 

8. 7 Ohio. pt. 2, 211. 



84 Rhodes v. CSmr of Cleveland. [Ohio^ 

Upon the whole then, we believe that justioe and good morala 
require that a corporation should repair a consequential injury, 
which ensues from the exercise of its functions, and that if we 
go further than adjudicated cases have yet gone, we do not 
transcend the line, to which we are conducted by acknowledged 
principles. 

We hold, therefore, that corporations are liable like indiyidu- 
als, for injuries done, although the act was not beyond their 
lawful powers. 

Judgment reversed. 



LlABIIJTT OF CORPOSATION VOB IkJUBIEB DoHB B7 IT.— <}IbM OF treSptflB 

win lie against a corporation for a tort committed by it: CfhetUnU EUl T. Oo, 
Y. Butter, 8 Am. Dec 676; Lyman y. White Biver Bridge Co,, Id Id. 706; or 
lor a n^lect of corporate daty: Biddle y. Proprietor$, 6 Id. 35. A rnnni* 
eipal corporation ia indictable for neglect to remoye a nuisance in a pnblio 
liyer, which it had power to remoye: People v. Albanyy 27 Id. 96, and note; 
and a municipal corporation is boimd to repair highways within its bounds at 
the expense of the inhabitants: Bancr^ v. LywnfiM^ 29 Id. 632; though at 
common law no action lies against a town for damages occasioned by a de- 
fective highway: Mewer y. Leieetter, 6 Id. 63; nor ate the inhabitants of a 
town liable for the repair of a bridge erected without their authority: Com- 
mamoedUh y. Charleetown, 11 Id. 161. But for all illegal and malicious acts, 
by which injury is caused, a municipal corporation is liable: Cfoodloe y. Cm- 
ekmati, 22 Id. 764; Baumgard v. JUayorf 29 Id. 437. The principal case was 
followed in McComb y. Town (huneU of Ahnm, 15 Ohio, 474; 8. 0., 18 Id. 
229; and cited approvingly in Orawford v. ViUoffe of Delawaire, 7 Ohio St^ 
464. In City qf Dayton v. Pease, 4 Id. 94, Banney, J., seems to doubt the 
doctrine of the principal case, but does not enter into a discussion of it, as in 
the case he was considering the city was sued for negligence and unskillful* 
ness. In Western CoUege v. CUy qf Cleveland, 12 Id. 377, a municipal cor- 
posation was sued by a medickl college for injuries done it by a riotous 
assembly, and based the city's liability upon its act of incorporation, which 
provided, among other things, that it should be the city's duty to prevent 
disturbances and disorderly assemblages. The court approved of the doo- 
trine of the principal case (at page 378), but distinguished its doctrine from 
the case under ooxisideration, saying: "It is obvious that there is a distinc- 
tion between those powers delegated to municipal oorpocations to preser ve 
the peace and protect persons and property, whether to be exercised by leg- 
islation or the appointment of proper officers, and those powers and privileges 
which are to be exercised for the improvement of the te r r i t or y comprised 
within the limits of the corporation, and its adaptation to the purposes of 
residence or business. As to the first, the municipal corporation represents 
the state— discharging duties incumbent on the state; as to the second, the 
municipal corporation represents the pecuniary and proprietazy interests of 
individuals. As to the first, responsibility for acts done, or omitted, ii gov- 
erned by the same rule of responsibility which applies to like delegatioiis of 
power; as to the second, the rules which govern the reeponsibility of indi- 
viduals are properly applicable. " The court held the action could not be 
■ostalned. This dlrtinction was recognised and followed in Wheeler y. OUy 



Dea 1840.] Swift u Holdbidge. 85 

<^CkiiidiiinaM^ 10 Ohio SI 19, where the oonrfc dies WegUm CoUege v. CfU^ of 
CfletelantL 

In OimeiimaU y. PeHny, 21 Ohio St 606, the oonrt approved of the prinoi* 
pel ease, bat dirtingidihed it from that case, as there injury happened to a 
li«n<lw^ abatting on the street, holding that in saoh a oaae the owner ooold 
not XMorer for the injnries. 



Swift v. HoLDBiDaB. 

[10 Ohio, 380.] 

BovA Fn)8 PoBOEASEB FROM FBAtrDni.ENT VzirDKi gflts a good title, nn« 

aiboted by the fraud. 
Ysin>XB or Gowstakgb to Dkvbaud CaxDrrbBS is Tbubtbb for the latter 

whfle the prop e rly remams in his hands; upon a conveyanoe by him, the 

tmsit 



Bill in ehanoeiy from Ashtabula oounly. The opinion states 
the case. 

Wade and WkitUesey, for the plaintiffs. 

Newton and Bailey, for the defendants. 

Lakb, 0. J. This is a creditor's bill, to discoyer and set aside 
fnudnlent conveyanoes, and procure the satisfaction of judg* 
ments which the plaintiffs have recoyered, by subjecting prop- 
erty, real and personal, to execution, or to obtain an account of 
moneys and assets, in the hands of fraudulent alienees. The 
papers in the case haye become yoluminous, and it will hereafter 
deeerye an extended and patient inyestigation. It was reserved, 
not to make this examination at this time, but to decide the 
general principles in relation to the liabilities to creditors of a 
fraudulent holder of another's properiy . The bill charges Hold- 
ridge with haying conyeyed his properiy to Bailey, for the pur- 
pose of placing it beyond the reach of his creditors, and that 
Bailey has sold the land to others. We do not undertake, at 
this time, to determine definitely the facts of the case, but to 
adjudicate upon the questions intended to be reserved, we as- 
sume for present purposes, that Bailey received a conveyance of 
this property to defraud the creditors of Holdridge, and that he 
has sold it to innocent purchasers, for a valuable consideration 
without notice. 

It has been so often held, in the courts of this state, that a 
fraudulent alienee may make a good title to an innocent pur- 
chaser, that we take that point for granted, without discussion. 
It is claimed, howeyer, by the plaintiff, that the recipient of a 
fraudulent title becomes a trustee of creditors, and is not per* 



86 Swift v. Holdriixje. [Ohioi 

mitted to lay down the responsibility, which the law fastena 
upon him, without justly accounting with the lawful creditors for 
whom he holds the estate; that whatever may have become of 
the property, the cestui que trust may demand its value from him, 
if he has placed it beyond the reach of the law. But in our 
opinion, this proposition is too broad, to be adopted in thia 
general form. Although where one man combines with another 
to cheat a third, an action at law may be sustained and damages- 
reoovered, the jurisdiction of chanoeiy in frauds does not extend 
so for as to a mere case for damages. The chancellor, under 
this general power, in cases of fraud, acts only to remoye 8om» 
legal obstacle, or to pursue a fond, or to restore a right lost at 
law, but not to give mere damages. It is not, then, upon thia 
ground, that a court of equity will entertain juzisdiotion againsi 
the recipient of a fraudulent title. 

An honest man will not take a fraudulent oonyeyanoe. If a. 
man hold property fraudulently oonyeyed, as soon as he oomea 
to a sense of his moral duty, he will restore it to those to whom 
it belongs: he ought to give it back to him from whom he ra- 
oeiyed it, that it may be applied to his debts, if wanted, or ta 
his benefit, if not necessary for thia purpose. The law to dia* 
courage frauds, does not compel him to restore it to the fraudu- 
lent grantor; yet no man will retain it for a moment, who de- 
sires the reputation of honesty, or possesses the sense of 
justice. The relations between him and the creditors of 
the debtor are different. There are no express obligationa 
between them; no promise to be accountable to them; no- 
obligation to restore to them; but the creditor ought to re- 
ceive his debt, and the law gives him a claim to the property,, 
and it charges the fraudulent holder as a trustee, in consequence- 
of his possession. The trust is not express — created by con- 
tract; but it arises by operation of law, in consequence of his- 
having in his hands, that which ought to be applied to the satis- 
faction of the creditor's debt. It depends, therefore, on the 
possession of the property. The character of cestui que trust 
does not belong to the general creditor, until he has shown him- 
self entitled to the debtor's property, by the recovery of a judg- 
ment. And if the fraudulent holder has in good faith divested 
himself of that, which he could not retain without dishonesty, 
before the right of the creditor has accrued, there is nothing re- 
maining upon which to raise a trust, and the relation of trustee 
to anybody subsists no longer. 

The court will lend to the judgment creditor any aid in theiY 



Dec 1840.] CiRft v. WnxiAna 87 

IK>irar, to xeaoh the property of his debtor in the hands of his fraud* 
nlent alienee, or to subject any debts, securities, rights, equities, 
or choees in action within his power, and will exact a rigorous 
accotmt of the disposition of anything he may have fraudulently 
receiTed; but if he has honesUy parted with what he fraudu- 
lently receiyed, before the rights of the creditor are fixed by 
judgment and the filing of his bill, he must be exonerated from 
further liability. How tax such taker may incur liabilities, in a 
suit at law, for a fraudulent combination, we need not now 
decide. 

Bona Tide Pubghasebs, Who abs; ahd Tftlb ov, how vab Pbotbotsd. — 
For a full diacosnon of this mibject, aee note to WUUamB v. Merits 26 Am. 
Dec. 606, also iVioe ▼. Jukkk^ 28ICL 685; RooiY. French, Id. 482; FBttermany. 
Murpky^ Id. 729; Brush y. Seribner, 29 Id. 903; Van RensadtuTY. Clark, 31 Id. 
280; UAnummn y. Vandefihwrghy 32 Id. 635; 8aUuB y. BoereU^ Id. 541; Hoff- 
man T. Sirohecter, Id. 740; Wineland y. Ooonce, l±Z20i Clark Y.FUnt, 33 Id. 
733. 

PXBaoire AoQUiRiNO Titlb bt Fbavd abb Tbubtbbs for the Injured party: 
Coleman y. Ooehe, 18 Am. Deo. 757. The poeition taken in the principal case, 
aa to the relatian between a firandnlent vendee and creditora of the vendor, 
bapproyedin WM y. Brown, Z Ohio St. 2&i; ffaOoweUv^Ba^Uee, 10 Jd.6i^, 
WhiteY. Broeauf, 14 Id. 841; iSitorry. Wrighi,20ld. 107. 



Gabb v. Williamb. 

PO Ono, 80ft.] 

Deed of FniB-ooyxBT not Ezboutbd acoobdino to Statdtb can not be 
regarded aa an agreement to conyey, the apecific perfonnance of whloli 
will be decreed a^pdnat her. 

MiSTAXB ur Mabbhp Woman's Dbkd will not bb Cobbbctbd aa againal 
her. 

Thokab Etechbh devised the property in dispute to his wife for 
life, with remainder oyer to his daughter, Mary, in fee. Maiy 
married Williams, and before the life estate terminated, they 
conyejed the -estate to the complainant, by means of a common 
printed blank, filled up in the usual manner, except that in the 
premises the names of the grantors were omitted. The deed 
was duly executed and acknowledged by Williams and his wife. 
Complainant filed this bill to correct this alleged mistake of the 
scriyener in omitting the grantors' names, and prayed further 
that possession might be decreed him. 

Wrighi and Walker, for the complainant. 

(7. Fox, for the defendants. 



88 Oabb v. WnxuMa [Ohio, 



GsuKBy 7. A deed which is intended to oonTey the legal 
tate, bat whioh is so imp^eotly executed, as to &il of e£Fecting 
that object, is depriyed of the character of a conyejanoe, bat 
may be treated as an agreement to conyey, and a xesort may be 
had to chanceiy for the poxpose of enforcing it, and compelling 
a specific p^ormance; or a bill may be filed for the poxpose of 
rectifying the mistake, when the original deed, as reformed, will 
take the place of the oonyeyanoe, which would otherwise be de- 
creed by the court. In either case, howeyer, the complainant 
has only an equity, and is obliged, on this account, to go from a 
court of law to a court of chanceiy. This is the general prin- 
ciple: but the question now intended to be presented is one of 
more particularity. It is whether the deed of a/eme-cover<, not 
executed according to the statute, may be regarded as an agree- 
ment to conyey, the specific p^ormance of which will be decreed 
against her, or whether a deed so imp^ect may be rectified so 
as to bind her right. It is familiar to us all, that by the com- 
mon law, a /eme-ooveri could not, by uniting with her husband 
in a conyeyance, bar herself of any estate of which she was 
seised in her own right. It is immaterial whether the disability 
is regarded as haying its reason on the principle that the sep- 
arate legal existence of the wife is suspended during the mar- 
riage, or in the fact that the infiuence of the husband may be 
improperly exerted for the purpose of inducing the wife to part 
with her interest in his &yer. The rule itself is one of undis- 
puted authority. 

Our statute prescribes the mode in which a married woman 
may execute a conyeyance of her land. It directs that she and 
her husband shall join in the conyeyance, and if this proyision 
is not complied with, then the deed stands as it would at com- 
mon law, absolutely yoid and inoperatiye as to her, and if a 
deed, the body of which was defectiye, was still to be treated as 
an agreement to conyey, or as an imperfect conyeyance, other 
proyisions of the statute equally essential would be disregarded. 
The acknowledgment and separate examination would not be to 
such an instrument as the law contemplates. I belieye no case 
can be found where a mistake in the deed of a married woman has 
been rectified as against her; McGaU y. McGaU, 3 Day, 402, is the 
only one which has been referred to. But it is yery different from 
the present. The deed there was made by the husband alone of 
his own land, and it is admitted by the counsel for the widow, 
that by the law of Connecticut, a husband might, l^ his deed, 
depriye his wife of her dower. The decision which was made. 



Dee. 1840.] Cabb u Williams. 89 

faowerer^ is hardlj reoonGilaUe with tke genezal prindplea of 
ibe law. It appears that two deeds wexe made hy the grantor 
to two of his sons, Roger and Walter. After he had executed 
them, he altered his mind as to the dispositions which he had 
made of his property, and intending to give the land which he 
had conyeyed to Walter, to his son Boger, and the tract which 
lie had giyen to Boger, to his son Walter, he altered the deeds 
so as to correspond with this intention, but there was no new 
execution and acknowledgment of these deeds. Notwithstand- 
ing the whole subject-matter of the conyeyance was thus effect- 
ually altered, the court regarded the instrument, not merely as 
an executory contract, but as a quasi conyeyance; and yet, hold- 
ing that it only transferred the equitable interest of the husband, 
deereed that it should be reformed, and the widow barred of her 
dower. 

In the case of MarHn y. DweUy, 6 Wend. 9 [21 Am. Dec. 246], 
the deed was made by husband and wife, but was not acknowl- 
edged by her pursuant to the statute. The deed was considered 
as haying no more effect than an agreement, and it was held 
that a court of chanceiy would not afford relief against the mar- 
ried woman or her heirs. It was conceded that the deed was in- 
operatiye at law, but it was contended that ii| might be treated 
as a yalid contract to conyey, performance of which would be 
decreed against the wife. But this doctrine was declared to be 
unsound in principle and unsupported by authority. Bdher y. 
ChUd^ 2 Yem. 61, has been said to be the only case which con- 
tains an intimation that a married woman will be decreed specif- 
ically to execute an agreement made during coyerture, but in 
&ct no decree was eyer made in that case: what appears to be 
such was the result of an arbitration to which the parties them- 
selyes consented. The case of Butler and Atwaier y. Bwcldng* 
ham, 5 Oonn. 492,^ is an affirmance substantially of the general 
doctrine which is to be collected from all the books. It was 
there held that an agreement of a married woman, with the 
consent of her husband, for the sale of her real estate, was ab- 
solutely yoid at law, and could not be enforced in equiiy. 

But there is another yiew of the case which has been taken 
by the complainant's counsel. Considering the omission of the 
names of the grantors in the granting clause of the deed as a 
mere clerical error, it is contended Uiat the conyeyance is in 
truth not defectiye, and that yet the complainant is entitled to 
the interference of a court of equity. But if this is the e£foct 

1. S Dij, 403; S. Cm S Am. Dm. 174. 



90 FOOTE V. BUBMXT. [Ohht 

of the omission wheie the deed is signed and sealed by the hus- 
band and wife» and in all other respeots executed aocoxding to 
law, then the complainant has a valid legal title, and his rem- 
edy at law is p^ect. And if the deed were produced, so thai 
that fact could be certainly and distinctly ascertained, we should 
probably have no hesitation in so deciding. Either the convey- 
ance is defective or it is not. In the first case, the miwtate can 
not be corrected as against a married woman; in the second, 
there is no defect to be rectified, and in either eyent the bill 
must be dismissed. 
Bill dismissed. 

Tbs Cxrtivcats of Ackm owXiKDQMKmt of a married woman's deed moat 
•how a subetantlal compliance with the reqairementa of the atatate: Waimm*9 
Lemee v. BaiUey, 2 Am. Deo. 4d2; Soam ▼. OonmomweaUkt 8 Id. 711; Waimm 
V. Mercer^ 9 Id. 411; a strict adherence is not necessary, a substantial oom- 
pliance being sufficient: ffoUingtworth y. McDonald, 8 Id. 545; MeJntire t. 
Wartl, 6 Id. 417. A voluntary execution must be shown: Waison'g Letsee t. 
BaHeff, 2 Id. 482; Ehrniu y. ComnumwecUth, 8 Id. 711; WaUon v. Mercer, 9 
Id. 41 1. And a deed of a feme^eoveri is void unless executed in the modo 
prescribed by statute: Martin v. DweUy, 21 Id. 246; BameU y. ShaeUtford, 
22 Id. 100; Payne y. Parker, 25 Id. 221. The principal case has been cited 
as authority for the position that a married woman's deed must fully comply 
with the statutory requisitions, in SilUman v. Cumminga, 13 Ohio St. 118; and 
CheatmU v. 8hane'$ Leasee, 16 Ohio, 632. 

CORKBCnON 09 DSTBCnYKLT EZBCUTXD iKSTBUIfENTS OF MAititm^ 

WoMXN. — For a discussion of this subject see the note to TIeman v. Poor, 

10 Am. Dec. 230. The principal case is referred to approvingly on the pcint 
that a deed can not be corrected as against a married woman, in PurceU v. 
Ooehom, 17 Ohio, 124; Danenport v. SovU, 6 Ohio St. 466; Ooahom v. PwredJ^ 

11 Id. 650. 



POOTB V. BtJBNBT. 

[10 Omo, nT.] 

CoTBNAirr AOAureT Incumbrances is a Rbal Covenant running with the 

land. 
MxASinui OF Damages fob Breach of Covenant against Incumbbangxs 

is the amount paid to remove the incumbrances, with interest, provided 

the same does not exceed the purchase money and interest; but in no casa 

can the damages exceed the latter sum. 

On March 5, 1817, one Ely mortgaged to Spencer, Burnet, 
and Corry the premises in question. The mortgage was attested 
by but one witness and was recorded the fifteenth of the same 
month. The mortgage was foreclosed and sold to the mortga- 
gees Burnet and Cony, in 1824. They, in 1825, sold the lot 
with the usual coyenants of seisin, against incumbrancers, etc.. 



Dec 1840.] FooTE v. Burnet. 91 

to J. P. Fooie^ and he in 1826 sold the same lot with the same 
coTenantB to the plaintiff S. E. Foote. Ely on March 8, 1817, 
mortgaged the same premisee to Williams and others; the mort- 
gage was foredosed and sold to them» and they brought eject- 
ment against the tenants of Foote, and, obtaining judgment by 
de&ult, were put in possession. Foote then brought eject- 
ment against Williams to reooTer back the premises, but the ac- 
tion was decided in favor of Williams; the court holding that 
Footers title was defective, as there was but one witness to the 
mortgage deed from Ely to Spencer, Burnet, and Cony. Foote 
then instituted a suit in chancery against Williams, the result 
of which was that Foote was allowed to redeem upon payment 
of one thousand seven hundred and seventy-three dollars and 
nineiy-five cents, a sum which exceeded his original purchase 
price by several hundred dollars. He then instituted this suit 
against Burnet, alleging a breach of all the covenants in the 
deed to him from Burnet and Oony. 

W. B. Morris, for the plaintiff. 

F. WarOiingion, for the defendant. 

HrraHOOOK, J. In the consideration of this case, we have been 
led to inquire, whether the titie of the plaintiff was defeated by 
a paramount legal right, or whether the mortgage from Ely to 
Williams and others was a mere incumbrance upon the land, 
which the plaintiff might remove by payment, and look to his 
covenantors for indemnity. If the former, then the plaintiff is 
entitled to recover upon his covenant of warranty, and in such 
case, the law is well settied in this state, that the rule of damages 
is the consideration money paid and interest. At least such 
^ould be the rule where the whole land was lost to a purchaser, 
•ly a paramount title. If but a part is lost, the damages must 
be commensurate with this loss, estimating the same according 
to the consideration actually paid. In the suit in chancery be- 
tween Foote and Williams, determined in 1834, this court seem 
to have considered the claim of Williams not as a paramount 
l^;al title, but as an incumbrance upon the land which might 
be removed by the present plaintiff, and decreed accordingly. 
In pursuance of this decree, this incumbrance was removed by 
the plaintiff, and he now seeks to recover the amount paid to 
remove it, under the covenant in his deed against incumlmmces. 

This claim is resisted by the defendant's counsel, upon the 
ground that the covenant against incumbrances in the deed from 
Burnet and Corry to John F. Foote was a personal covenant, that 



92 FooTB V. BuBNET. [Ohio, 

it was broken as soon as made, if broken at all, and did not pass 
'with the land to the present plaintiff. That the covenant of 
seisin has been generally, by courts, considered as a personal 
covenant, and not running with the land, is fully shown by the 
authorities dted. And in this respect the covenant against in- 
cumbrances is not diflfrimilar to that of seisin. So &r as it 
respects this latter covenant, the question, whether it is a teal 
or personal covenant, was before this court in the case of Backu8 
V. McCoy, 8 Ohio, 211 [17 Am. Dec. 586]. Many of the authori- 
ties which are now cited, were then examined by the court, and 
the case fully considered. After much deliberation, it was de- 
cided that the covenant of.seisin in a deed, when the covenantor 
is in possession claiming title, is a real covenant running with 
the land. But where the covenantor is not in possession, and 
the title is defective, it is broken as soon as made, and never 
attaches to the land, being in the nature of a personal covenant. 
It is true, the plaintiff's counsel questions the authority of this 
case, and claims, that it is unsustained by authority. It is ad- 
mitted that there are authorities against the decision, and it is 
clear that there are authorities which go to sustain it. But if 
there were no such authorities, still we shall be disposed to abide 
by it so long as we believe it to be in accordance with the im- 
mutable principles of right and justice. 

The same train of reasoning which led the court to this de- 
cision, will lean to a similar result with respect to the covenant 
against incumbrances. This covenant, like ''the covenant of 
seisin, is made for the benefit of the grantee, in respect to the 
land. It is not understood as a contract, in which the imme- 
diate parties are alone interested, but as intended for the secu- 
rity of all subsequent grantees." If. the first grantee continues 
in possession of the land, while his title remains undisturbed, 
and conveys to a subsequent grantee, in "v^hose time an outstand- 
ing incumbrance is enforced against the land, justice requires 
that this subs6<}uent grantee should have the benefit of the cov- 
enant against incumbrances, to indemnify himself. We hold, 
therefore, in accordance with the decision in the case of BackoM 
V. McCoy, that a covenant against incumbrances is a covenant 
running with the land, until the incumbrances are removed. 
And, therefore, that the plaintiff is entitled, in this case, to re- 
cover for the breach of such covenant. 

The next question is as to the measure of damages, and upon 
this question, we have had much difficulty. It is said in the 
books, that the covenant against incumbrances is a contract of 



Dec 1840.] FooTE v. Bubmtt. 93 

indemnity, and hence it is argued that the covenantee may re- 
ooTer to the extent of the amount he has paid to extinguish the 
incumbrance. If this be correct, then, upon this covenant, a 
recovery to a much greater amount may be had* than upon the 
covenant of warranty which is ever considered the principal 
covenant in a deed. In the case before us, the consideration 
money paid to Burnet and Corry for the land, was ten hundred 
and twenty dollars. If the plaintiff had entirely lost the land 
by paramount title, all he could have recovered would have been 
this sum, together with interest. But he has not been deprived 
entirely of the land. He has paid off an incumbrance amount- 
ing to one thousand seven hundred and seventy-three dollars and 
ninety-five cents. If, in the present action, he can recover thi» 
amount with interest, he recovers more than he would have 
done, had he entirely lost the land. There would seem to be 
some inconsistency in this. 

That in an action for the breach pf a covenant against incimi<» 
brances, the measure of damage is the amount paid in good 
faith to remove such incumbrances, is sustained by the following 
authorities: Delavergne v. Norris, 7 Johns. 458 [5 Am. Dec. 281]; 
EaU V. Dean, 13 Id. 105; Leffinwell v. EUiott, 10 Pick. 204; 
Brooks V. Moody, 20 Id. 474; PrescoU v. Tniman, 4 Mass. 627 
[3 Am. Dec. 246]. Many other cases might be cited to the same 
point, but it is unneoessaiy as they are referred to in the argu- 
ment of counsel. But in none of these cases does it appear, 
that the amount paid to remove incumbrances, exceeded the 
amount of consideration money paid for the land. 

Chancellor Kent, in his commentaries, 4 Kent's Oom. 476, 2d 
ed., says: ** If the subsisting incumbrances absorb the value of 
the land, and the quiet enjoyment be disturbed by eviction by 
paramount title, the measure of damages is the same as under 
the covenants of seisin and warranty. The uniform rule is, to 
allow the consideration money, with interest and cost, and no 
more. The ultimate extent of the vendor's responsibility, under 
all or any of the usual covenants of his deed, is the purchase 
money with interest." 

In seeking for adjudged cases, we have found but one analo- 
gous to the case before us, and that is the case of Dumrick v. 
Lockwood,^ 10 Wend. 142. In that case, the consideration paid 
was one hundred and twenty-five dollars, and the enhanced 
value by reason of improvements, was one thousand dollars. A 
moiety of the premises had been sold by virtue of a pre-existing 

1. IHmmiek ▼. Lockwood. 



94 FooTE V. Burnet. [Ohio, 

judgment against the grantor. The action was for a breach of 
the coTenant against incumbrances. The court held that the 
grantee was entitled to recover only the consideration of the 
purchase of the portion lost, with interest and costs, and not 
the enhanced value in consequence of improvements. In giving 
the opinion of the court, Chief Justice Savage, after reviewing 
all the authorities, in closing says: ''Among all the cases which 
have been cited, there is none in our court, where the purchaser 
has been permitted to recover, beyond the consideration money 
and interest and costs. There is none in Massachusetts, where, 
under the covenant against incumbrances, the purchaser has 
recovered any more, though there the rule allows a recovery for 
the value at the time of eviction. All the reasoning of our 
judges goes to limit the responsibiliiy of the grantor, to the 
consideration, with interest and cost, and I am unwilling to go 
further, where the principle to be established may lead to greater 
injustice. 

After full consideration, and careful examination, we have 
been led to the conclusion, that the law is, as laid down in this 
case. That the true measure of damages, in an action for the 
breach of the covenant against incumbrances, is the amount 
paid to remove the incumbrance, with interest, provided the 
same do not exceed the purchase money and interest. But in 
no case can a purchaser recover greater damages for the breach 
of any of the ordinary covenants in his deed, than for a breach 
of the covenant of warranty. 

Judgment will be entered in &vor of the plaintiff, computing 
ihe damage upon this principle. 

Judgment for the plaintiff. 



What Covsnants Buk with ths Land: See JDng v. £€97^9 Adm*r§t 22 
Am. Dea 777; Su^dam v. Jomea, 25 Id. 662;- L<4 v. Tkoma$^ 2 Id. 354; 
BachuB ▼. JfcCoy, 17 Id. 585; Pollard v. Shcu^/tr^ 1 Id. 239; nete to FkUUm 
▼. Stuofi, 15 Id. 544; Kellogg v. Mobhuon, 27 Id. 550; WcUertawn v. Cowm^ 
Id. 80. In the note to Crouch v. Fowle^ 32 Id. 853, the doctrine of implied 
oovenania of title ie diBCoeeed at length. 

MxASUBK OF Damaobs FOR Bbbaoh OF GoviNANTB.— Of covenant of war- 
ranty, see Hammm v. Buekner^ 29 Am. Dec. 401; King v. Ktrr^ 22 Id. 777; 
Hortford ▼. WriglU^ 1 Id. 8. Of covenants of aeiain, aee Hereford v. Wright^ 
Id. 8; OUberi v. BtdUey, 13 Id. 67» and note 59. Of covenant against in- 
cambranoee, see Ddavergne v. Norri$, 5 Id. 281; jFWnJb v. Vcneida^ 14 Id. 
617. Of covenant to stand seised: Sinffieton ▼. Brtmar, 17 Id. 099. Of cov- 
enant to convey, see note to Bakiwki v. Mvnin^ 20 Id. 832. The principal 
case has been cited to the following points: That in no case can the damages 
for a breach of covenants against incomfarances exceed the amonnt of the 
consideration money, in Nyee v. Ofterts, 17 Ohio, 76; that the measore of dam- 



Bee. 1841.] Linn v. Boss. 96 



In a ooveoADl of wammty is the Mnount paid to eztingaiah tba liioiim* 
bnnoe, proTided it doee not exceed the jmrchaM price, in Brieher ▼. JMeheTt 
11 Ohio St. 2i4; that proportioDal damages will be allowed where there ie aa 
^ifTlefeion from a part of the premiwe: MeAlpin y. Woodn^^ Id. 120. 



Linn v. Roes. 

(10 Ono, 419.] 

TMKAm^ LiABiUTr lOB BxiiT, WHSN pRiMiBis ABB D bwhoi *!> .— Whore 
tsnant leaiee certain property for a apeoified time, and in the cootraefe 
agreea topay a certain earn yearly for rent, and makee no roeerration on 
acooont of aooidents, hii contract to pay rent ie ezpreae, and he is li- 
able therefor, though the premiaes are destroyed before the ezpiiation of 
the time. 

AmuMpacr from Clark ooiiniy, to reeoyer fhe vent of oertam 
premifles leased to the defenduitB. The contract of lease is aa 
follows: 

** I, Joseph M. Linn, have leased and let to 0. E. Boss & Co., 
ifae west diyision of my new building, in the town of Spring- 
field, for two years from the first day of September, 1839, for 
three hundred doUars per annum, payable quarter-yearly. . 

''J. M. LiDni, 
'«E. 0. Boss&Oo.'' 

The defendants pleaded the general issue, and gave notioe 
tiiat they would show that they had paid the rents up to Feb- 
roaxy 14, 1840; that on the tenth of February, 1840, the leased 
premises ware destroyed by fire without any negligence on their 
part; that on the fifteenth of February they surrendered the un- 
expired portion of the lease to the plaintiffii, who accepted the 
«arrender, and entered into the exdusiye possession of the prem- 
ises. The jury found a yerdict for the plaintiff for the rent ac- 
cruing after the destruction, the amount claimed. The defend- 
antamoyed foranew trial onaccountof analleged misinstmotion 
by the court. The instruction appears from the opinion. 

IV. A. Bogen^ for the plaintiff. 

MoBon and Ibrberi^ for the defendants. 

Wood, J. It appears from the record that the court charged 
the juiy, " that the agreement on which the action was brought 
was an express contract for the payment of rent quarterly for 
the use and occupation of the building leased, and being ex- 
press, the defendants were not released from their obligation by 
the destruction of the building by fire., on the fourteenth of 



96 LmN V. Boss. [Ohi(v 

Febmaiy, 1840, though 'without the &ult of the dafendantB.''' 
This instruction of the court is supposed to be erroneous, and 
our investigation is resolved into the inquiry, whether the agree- 
ment to pay the rent, which is the basis of the action, is express- 
or implied. For if it be express, whether under seal or by 
parol, whether the action be covenant or assumpsit, the destruc- 
tion of the leased premises, by inevitable accident, does not dis- 
charge the lessees from their liability to pay the rent. This is^ 
admitted by the defendant's counsel, and it would be difficult 
to maintain the affirmative of the proposition against the weight, 
of authority contained in both the English and American re- 
ports: 3 Kent's Com. 373. 

Is this then an express contract to pay the rent? An eiqpress- 
' contract may be defined to be an agreement whose terms aie^ 
openly uttered or expressed by the contracting parties. In such 
a case, if the contracting party by his own act creates a charge* 
upon himself, he is held to its performance, and inevitable ac- 
cident does not excuse him, for it was his own folly, that he did 
not provide against it in his contract. An implied agreement is 
where the terms of the contract are not expressed between the^ 
contracting parties, but the obligations of natural justice, by 
reason of some legal liability, impose the payment of money or 
the performance of some duty, and raise a promise to that effect. 
In the latter case, as the law creates the duty, it also provides- 
the exception, for if the party be disabled from performance- 
without his own default, his obligation is discharged. 

Is this contract, then, express or implied? It is signed by 
both the parties. It expresses the description of the premises- 
leased, the time for which they are to be engaged, and the con- 
sideration, in these words: ''For three hundred dollars per 
annum, payable quarter-yearly." Nothing is left here to infer- 
ence, all is agreed by the parties themselves. The defendanta^ 
have leased the store for two years, and agreed to pay the r^t, 
three hundred dollars^ quarter-yearly, and as they did not pro- 
vide in their contract against inevitable accident, they are not 
discharged by the destruction of the store, though without 
their default. 

The instruction to the jury was right, and judgment will be- 
entered on the verdict. 

Verdict for the plaintiff. 

DEST&iTcnov ov Leased Pbemtses bt Fnts does not reUaae iMsee from hit- 
liability for rent: Oates t. Oreen, 27 Am. Deo. 68, aad oote 71. 



Dec 1841.] Pebkihs' Lesseb v. Dibblb. 97 



»im:«Iv[; 



TilWffWiW V. DiBBIiB. 



PO Ohio, 488J 

WouM ov SiuuuFF^g J>EMD. — A ■heriff's deed is raffident if it ahowt that th* 
officer had anthority to sell; therefore where the deed redtes the ezeoa- 
tlon, and the names of the parties as therein stated, it is snffioiant, 
thongh in referring to the Judgment it does not again redte the names 
nor state the amount of the judgment except as it appears upon the 
execution. 

I>DD> wriH GoiTDmov OF BKnuAAVCM UPON THB Baok IS but a security for 
money, and therefore only a mortgage; and whether the condition pre- 
ceded or followed the signature, does not afifeot its natore. 

Wbbrs OoirDinoN is not Cokfijkd with at Tm Stztulatid, bat is per- 
formed afterwards, tlie land revests in the grantor without the necessity 
of a recQUTcyance. 

To Vaudatb Tax Sasm, Laud must be Pbofiblt Bntxbxd on tax dupHoate. 

Tax DoFLiOAnB ImnnvianDfT, Whxn.^A tax duplicate desoribing the land 
as being in "range 8, township 18, sectiofn 1, lots 8 and 9 K. part, one 
hundred acres,** without specifying the quantity of land in each lot, is 
not snfBciflnt under the act of February 8, 1886, and a tax sale under U 
is fold. 

EnonoBT from Ashtabula oounly. Plaintiff proTed that, on 
June 25» 1816, one Doly being in posflession of the land in con- 
troTenfy, oonyeyed it to A. Harman, who deeded it, on August 
29, 1817, to Judith Yeomans. In 1819, Doty and Judith Yeo- 
mans intennanied, and xemained in the possession of the land 
until November, 1886, when it was sold on execution, at the suit 
of A. Barman, to Simon Perkins, the lessor of the plaintiff. The 
admission of the sheriff's deed in evidence was objected to on 
the ground that it did not sufficiently state the cause of action, 
the names of the parties, etc.; but the objection was oyerruled 
and the deed admitted. The defendant offered in evidence a 
deed of the same premises from Doty to one Nathan Strong, 
dated December 5, 1815; on the back of this deed, a condition 
or defeasance was indorsed, stipulating that the deed would be 
void on the payment by Doty of one hundred and twenty dollars 
by December 5, 1816. He also offered a deed from the auditor 
of Ashtabula county to Strong, dated September 17, 1880, con* 
veying the land on a sale for taxes. In support of the tax sale, 
dcdfendant offered evidence of the auditor's tax duplicate, and 
the proceedings and sale thereunder. The entry of the land 
upon the duplicate is as follows: '* Bange 3, township 13, section 
1, lots 8 and 9 N. part, one hxmdied acres. This deed was 
objected to, but was admitted subject to t|ie objection. There 
was also produced a deed from Strong to one Osbom and from 

Am. Pac Vol. XXXVI— 7 



08 Fekkins' Lessee u Dibbue. [Ohioi, 

Osbom to the defendant. The defendant also proTed that the 
debt mentioned in the defeasance was not fully satisfied till 1828. 

Oiddings and Chaffee^ for the plaintiff. 

H. Wilder, for the defendant. 

HrrGDBCooKy J. There is no controverBj aboot the facts in this 
case. Although not placed before the court in the shape of an 
agreed statement^ still there is no contradiction in the testimony. 
The facts are fully set forth in the statement of the case, and 
the questions thereon "will be considered in the order in which 
they naturally arise. 

The only defect in the plaintiff's proof as making a prima 
facie case, is supposed to be in the sheriff's deed of November 
22, 1886. This deed is objected to on two grounds: 1. That 
there was no eyidence given of a judgment or levy; and 2. That 
it does not contain the necessary recitals. As to the first objec- 
tion, it would have been fatal had it been taken at the time of 
trial on the circuit. If, however, it had then been made, no 
doubt the defect of testimony would have been supplied. But 
the only question then raised was as to the recitals in the deed, 
and this was the question reserved, and is the only one which 
can now be considered. The law regulating judgments and ex- 
ecutions, requires that the '' deed of conveyance to be made by 
the sheriff or other officer, shall recite the execution, or the sub- 
stance thereof, and the names of the parties, the kind of action, 
the amount and date of term of the rendition of each judgment, 
by virtue whereof said lands and tenements were sold," etc. 
The deed in the present case recites the execution, and the 
names of the parties as therein stated, but in referring to the 
judgment does not again recite their names, neither does it state 
the amount of the judgment, except as it appears upon the ex- 
ecution. It recites sufficient to show that the officer had author- 
ity to sell, and this we hold to be all that is necessary, although 
in every instance it would be well for a sheriff or other officer to 
follow literally the provisions of the statute. So far as the 
statute makes provision for any recitals beyond what is neces- 
sary to show an authority to sell, we consider it as directory 
merely, and it was so decided in the case of Armstrong v. Mo- 
Coy, 8 Ohio, 128 [31 Am. Dec. 485]. Such being the opinion of 
the court, the objection to the sheriff's deed is overruled, and 
this deed, in connection with the previous evidence, makes a 
prima facie case for the plaintiff. The defendant, to rebut this 
case made by the plaintiff, relies: 1. Upon the deed made by 



Dec 1841.] TtSBXJSQ' Lessee v. Dibble. 99 

Doty to Strong in 1815; 2. Upon Uie tax sale of 1827, and 
the deed made in parBoance thereof in 1880. Whether the de- 
fendant has oonnected himself with the title derived from these 
deeds is immaterial. If the deed of 1816 divested Doiy of all 
l^gal title to the land, or if he was diyested of title bj the sale 
for taxes, and the deed made pnrsnant thereto, the phiintiff most 
fail, for he olearlj has no title, and the rule in ejectment is in- 
flexible, that a plaintiff most reooTer npon the strength of his 
own title, not upon the weakness of that of his adTensaiy. 

What then was the natoie of the deed of 1816? Upon its 
face it pnxiKyrted to be an absolute deed of conyeyance of the 
land in oontruveniy. But npon its back it oontained the follow- 
ing condition: ''Provided nevertheless, if the said Ebenezer 
Doly, his heirs, exeoators, or administratorB shall well and trolj 
pay to the said Nathan Strong, his heirs, exeoators, or admims- 
trators, a certain note of hand dated the fifth day of Decem- 
ber, 1815, for the sum of one hundred and twenty dollars, paya- 
ble by the fifth day of December, 1816, with interest; now 
kaow ye, that if the said Ebenezer Doiy shall well and truly 
pay or cause to be paid, the sum of one hundred and twenly 
dollars with interest thereon according to the above and within 
statement, then this deed is to be null and void, otherwise to be 
in full force in law." Had this condition preceded the signa- 
tore and acknowledgment of the deed, that instrument would 
have been a mortgage. But it is urged by defendant's counsel, 
that as it follows the signatore it is no part of the deed, and the 
instrument can not be considered in law as a mortgage, however 
it might be in equity. The court however entertain the opinion 
that the legal effect of this deed is the same as if the matter 
placed upon it and following the signature had preceded the 
signature. It shows the purpose for which the deed wbb deliv- 
ered, and that purpose was as collateral security for the payment 
of money. And eveiy deed made for such purpose is a mort- 
gage. 

Before foreclosure or entry under a mortgage, the mortgagor 
must be considered as the owner of the land. And it has been 
repeatedly decided in this court that the interest of the mort- 
gagor may be sold on execution, the purchaser taking the land 
subject to the mortgage. In the case of Jackmm v. WiUard, 4 
7ohns. 41, the supreme court of New York held that before fore- 
closure, although the estate had become absolute at law, the 
mortgaged premises could not be sold on execution against the 
mortgagee. And in the case of Hiichoock and Wife v. Harring* 



100 Febeins' Lessee v. Dibble. [OIuol 

ion^ 6 Id. 290 [5 Am. Deo. 229]^ the same oourt decided, tbav 
the mort^fagor, notwithstanding the mortgage, is deemed seised 
and is the legal owner of the land as to all persons except th»< 
mortgagee and his legal representatiTes. If the condition of ttu* 
mortgage be complied with, bj the paymentof the debt secured 
on the day, an absolute estate ncTer vests in the mortgagee 
And eren if the mortgagee have taken possession, the mortgagor, 
upon payment being made according to the condition, or upoa 
tender of such payment, may re-enter. He is reinyested withtbi 
full legal title: 2 Pteeton on Oonyeyanoes, 200, 201; 4 Eenfi 
Com. 198; Bac. Abr. 20, 21; Oo. lit 209. 

But whether after a default of payment, whereby the estati 
becomes absolute in the mortgagee, and the mortgage is snbse 
quently paid off and satisfied, the estate can revert at law to tin 
mortgagor without a reconveyance, is a question of more diffi- 
culty. And the question has been decided differently in differ 
ent states. The ancient doctrine undoubtedly was, that undei 
such circumstances, a reconveyance was necessaxy. And such 
would seem to be the law in Massachusetts, Connecticut, Yir 
ginia, and Kentucky: 8 Mass. 664; 16 Id. 288;' 17 Id. 419,*' } 
Day, 161,-* 4 Band. 226;* 2 Munf . 887.* But in New York and 
Maoylond, it has been held that no such reconveyance is neces- 
saiy: 18 Johns. 7;* 6 Oow. 202; 2 Ear. & M. 17;' 8 Id. 899.* 
And in the case of Oray v. Jenks, 8 Mason, 620, it was held 
that a satisfied mortgage was so far an ertinguished title, that 
no action would Ue upon it in &vor of the mortgagee. If w< 
look at the true nature of the contract, and view the mortgage 
as it really is, a mere security for a debt; if the debt is the prin< 
cipal, and the mortgage the incident, there certainly, as it ap 
pears to me, can be no good reason why a discharge of the debt 
should not be held to be a discharge of the mortgage, and pui 
an end to the interest of the mortgagee in the land. Such wai 
said by this court to be the case in Em v. West, 8 Ohio, 222 [81 
Am. Dec. 442], and we ore disposed to adhere to the opinion 
therein expressed. We are aware that this is contrary to tfat 
old doctrine upon the subject, but we believe it is in confonnit^ 
with reason and with modem decisions: 4 Eenfs Com. 198. 
Nor does this opinion conflict with the statute of the twenty- 
second of February, 1831, pointing out the manner in which 
satisfaction of a mortgage may be entered. If it did, it could 

make no difference, as the mortgage debt in this case was satis* 

■ — • 

1. Wardm t. Adawu, 9. Parwiu r. WMtt, 8. Pkdfii r. 5«^ 

4. JtetOnMT T. Bro^emihrougk, 4 Band. U6. I. Dn mm tn A r. Aidbordi. 

e. /MfcMn T. i>avfe. T. Morgan t. Dtmit. 8. Pmtm t. PmO. 



Dec 1841.] FSBKiNs' Lessee v. Dibble. 101 

fied long before the enactment of this law. Apply these princi- 
ples to the case before the court, and it follows that the defend- 
ant can not protect himself under the deed of 1815, as that was 
a deed of mortgage, and the debt secured by it was paid and sat- 
isfied long before the commencement of this suit. 

The only remaining question is as to the validiiy of the tax 
sale of 1827. It is admitted that this sale was legally made, 
provided the land was properly entered on the tax duplicate. 
The quantify of land taxed and sold was one hundred acres. It 
was described as being the north part of lots 7 and 8, section 1, 
township 18, range 8. The quantity of land in each lot is not 
specified, and it was sold as an entire tract. The evidence 
shows that these two lets .adjoined e^c^.ct^er'OU; fho past/md 
west, and there couJLd.haTd.been no clifKqulty in fiA^i^ Ib^ }and» 
had it been conveyed by a similar description in a deed. Butt 
although this description might be sufficiently certain in a deed, 
it does not follow that it is suffidentiy certain to sustain a sale 
for taxes. In order that such sales may be sustained, it is neces- 
sary that aU the requisitions of the law under which they are 
made, should have been complied with, and any departure from 
these requisitions will defeat the sale. Such has been the uni- 
form decision o{ this court. 

The law tmder which this land was listed for tax, and entered 
upon the tax duplicate, is the act of the third of February, 
1835, entitled " an act establishing an equitable mode of levy- 
ing the taxes of this state:" Chase's Stats. 1476. The tenth 
section of the act requires of the cotmiy assessor to take a list 
of all property in his cotmty, subject to taxation, and for this 
purpose it is made his duty to visit each house in the county, 
etc. In the eleventh section, the list which is to be taiken is 
prescribed. It ^' shall particularly set forth the name of the 
owner or owners, the number of acres of land in each partic- 
ular tract, lot, section, or subdivision thereof, the range, town- 
ship, section, quarter section, tract, lot, or part thereof, or the 
number of entiy, location, survey, or watercourse, as the nature 
of the general or particular surveys may require, so as com- 
pletely to designate or identify the same." The great object 
here is to have the list so made as to designate and identify the 
land, and the different modes of division in the different parts 
of the state referred to. Whatever that division may be, 
whether into entries and surveys, or into tovniships, sections, 
quarter sections, tracts, or lots, the number of acres in each 
division, or subdivision, must be separately and ''particularly 




102 Fekkins' Lessee u Dibble. [Ohio, 

Bet forth." If the owner of the land does not famifih a list it 
is made the duty of the assessor to make it out, and having 
taken these lists and a£Sxed a value to the properly, it is his 
duty to return an abstract of the same to the county auditor. 
From this abstract returned, the county auditor was to make 
out a tax duplicate. That there need be no mistake, the thirty- 
ninth section of the act prescribes the forms which shall be 
made use of by the officers whose duties are prescribed in the 
act. These forms show, that both in the list and in the dupli- 
cate, the precise number of acres in each particular tract or lot, 
or part thereof, must be particularly set forth. 

In the case now before us this was not done. The description 
/ : 'te iStxe hxjfAt^ 9cre8; in jbh6.nerth^ part el two lots. It does not 
/'•borw.tii^ Kuwb^ 6{:%eM« ^ bi ^eiMsh upaftienlar lot," and is not 
in this respect in conformity with the law. No case precisely 
like the one now before us has ever been decided by the court, 
but adopting the principles by which we have been governed in 
cases somewhat analogous, we must hold that this tax sale was 
void, and that the deed made in pursuance thereof convqred no 
title. 

There being nothing to impair the prima faoie case made by 
the plaintiff, he is entitled to judgment. 

Judgment for the plaintiff. 



Bbgitalb in Shkbiw^s Deed. — ^A ■heiiff's deed is void. If it doee not 
cite the Judgment, where the etatate requires snoh reeital: Jh^fimr v. 0am' 
Jranc^ 13 Am. Deo. S0O; but referenoe to the execatioa end a redtid of ite 
piinoipal parte la a sufficient oompUance with the statate: MeGfuire v. Kmnu, 
18 Id« 187; and a misrecital in the sheriff's deed of facts anthorisng his con- 
veyance will not avoid his deed, if the necessary facts actnally exist: Martim 
V. WiUxmmet 27 Id. 393. In Harrimm y. MaxweU, 10 Id. 611, it was held 
that a redtal of the anthority onder which the sale was made was not indis- 
pensably neoessaiy; and that if in such deed the ezecntion is misrecited, as 
having issued from one court where it in fact issned from another, the mis- 
recital is not fatal. The Judgment offered to support a sheriff's deed must 
appear to be the one recited therein; and a variance of two dollars and sev- 
enty-eight cents between the Judgment recited and the one prodaoed in evi- 
dence, was held to be fatal to the validity of the deed, in Den v. De t pree m X t 22 
Id. 486. 

Absoluti Dxxd with Aobbembnt to Reoonvbt. — For a fuU dlKussion 
of the legal effect of such an instrument, see the note to Chotm*9 eoee, 17 Id. 
300; also FriecUey v. HcmiUon, Id. 838; Beading v. Weston, 18 Id. 89; Edring- 
Urn V. Harper J 20 Id. 145; Harbiaon v. Lemon, 23 Id. 376; TotiU v. Bieharde, 
Id. 722; Bennei v. HoU, 24 Id. 455; OUIU v. MarHn, 25 Id. 729; CohoeU v. 
Woods, 27 Id. 345; Bennock v. WMj^ 28 Id. 186; Hickman v. CamtreR, 30 
Id. 396. The principal case was approved on the point that an absolute deed 
with a condition of defeasance on its back would be construed as a mortgage^ 



Dec. 1841.] Fee t;. Fee. 103 

iHk«n ihe instmiiient was intended merely as a security for money, in Wood" 
n^v, RM, 19 Ohio, 210. 

Tax Salbs.— This snhject is folly disonssed in the notes to BJakt y. Hcwe^ 
15 Am. Bee. 684, and Jaek»on v. Shephard^ 17 Id. 505; see also Cox y. Blan» 
den, 26 Id. 83; OarreU v. Doe, 30 Id. 65a 

Ths fkenoipal oasb bas bebn oitxd to the following points: That no par- 
ticular form is neoeesaty to oonstitate a mortgage: Hurd ▼. Bcbmaonj 11 Ohio 
St. 234; that an objection not taken at the circuit will not be considered in 
beak: LewUr. Bank qf KerOucky, 12 Ohio, 14& 



Feb v. Feel 

[10 Omo, 469.] 

ScAVon ov LonxATKniB Bbqinb to Bun when thb Oaubb ov Aanom 
Aoaamu, not from the time the knowledge of that fact comes to the 

plaintiff 
FRAUDULXNT Ck>KGIALMXnT WILL NOT StOP THX £U2fNINO 07 THB StAT- 

UTS, though the plaintiff is thereby prevented from knowing that his 
oaose of action accraed; the relief in such a case would be in equity. 

AssuKFSEr for money had and receiyed. Tba declaration 
chazges that defendant had and receiyed the money in the intes- 
tate's lif e-time, and had promised to pay the same to the plaint- 
iff as administrator. The defendant pleaded the statute of lim* 
itations, and to this plaintiff replied that defendant received the 
money in the intestate's life-time, and without his knowledge, 
and &andulently concealed the same from him; that the intes- 
tate did not know of the receipt of the money, nor did the 
plaintiff, his administrator, know of the receipt of the money tOl 
within six years before the commencement of the suit. To this 
replication there was a demurrer and rejoinder. 

Coombe, for the plaintiff. 

Naah, for the defendant. 

GtanoES, J. From the statement of the case it is evident that 
the cause of action accrued on the receipt of the money. In 
such a case it is not sufficient, in order to avoid the effect of the 
statute, to aver that the parly was ignorant of the fact that he 
had a cause of action. The plea of the statute goes to the exist- 
ence of the cause of action, and not to the knowledge of it. 
This, although it is a sort of elementary principle, and has its 
foundation in necessity and convenience, has been sometimes 
questioned, but I am not aware that it has ever been shaken. 
The case of Oranger v. Oeorge, 6 Bam. & Cress. 149, is one of 
the last in which the point has been made. It was an action of 



104 Feb v. Fee. [Ohio^ 

troTor. The conyersion had taken place moze than six yean 
before the coxmnenoement of the suit. The plaintiff attempted 
to avoid the bar of the statute by replying that the fact of the 
eonyersion did not come to hia knowledge till within six years. 
But it was held notwithstanding that the statute was a bar, and 
that the circumstances which were set out in the plea were en- 
tirely foreign to the issue. The replication in the present case, 
however, goes further. It attempts to show a fraudulent con- 
cealment on the part of the defendant. Oan aplea of the stat- 
ute then be avoided, by replying that the cause of action had 
been fraudulently concealed by the defendant? This is a ques- 
tion about which there has been a great diversify of opinion. 
Mr. Cbitty, in his late treatise on contracts, page 818, remarks^ 
that it does not appear to be settled whether fraud in the de- 
fendant prevents or suspends the operation of the statute* 
But he confesses that there would be great diffioulfy at law in 
settinig^ up even an undiscovered fraud, as an excuse for not 
commencing an action. Nor has he been able to find a single 
case where it has been held that it may be done. The great 
diversify in the cases is to be found in this countiy, and that is 
attributable in a great measure to the circumstances that in 
many of the states there is no court of chancery. Where there 
is no tribunal to administer equitable relief, a court of law is 
very apt to adapt its own rules to the system of equify jurispru- 
dence. 

I shall not stop to inquire whether the replication in form is 
sufficient. Chitfy, after remarking that it had been suggested 
that fraud would prevent the running of the statute, says: ''At 
all events, if in assumpsit the statute be pleaded, and fzaud un- 
discovered within six years be relied on, the general replication 
and the fraud should be specially replied." The determination 
of the principal question in the case renders it unnecessary to 
notice this point. One of the earliest American cases in which 
this doctrine of fraud has been considered, is that of TJie Turn' 
pike Co. V. BHjM, 8 Mass. 201. It was there held that a fraud- 
ulent concealment by the defendant, that a cause of action has 
accrued to the phuntiff, is a good replication to a plea of the 
statute of limitations. The replication stated that the defend- 
ant fraudulently concealed the bad foundation of a road he had 
engaged to ma^e, the unsuitable materials, and the unfaithful 
execution of the work by covering the same with earth, and 
smoothing the surface, so that it appeared to the plaintiff that 
the contract had been duly complied with. There is no court 



Dec 1841.] Fee u Fee. 105 



of ohanoeiy in Maaaaohiifletts, and the only anthoritieB which 
•re referred to, are The 8<nUh Sea Co. ▼. WymondseU, 8 P. WniB. 
14B; and Bree t. Holbeck, Dong. 664. The hist was a oaae in a 
<Nmrt of lawy bnt the point ivas not decided. It is only said by 
way of aigomenty that there may be oases which frand will take 
<mt of the statute of limitations. The authority of this casehas, 
howeirer, been recognized in Homer t. lUh^ 1 Pick. 486 [11 Am. 
Dec. 218]; Sherwood t. SnUon, 6 Mason, 148; and Biehop t. LiU 
Me, 8 Oreenl. 406. 

A totally different Tiew of the law is taken in MUee t. Berry , 
1 Hfll, 296. The principle of the decision which had been made 
in the previons case of HarreU t. KeUy, 2 McOord, 426, is re- 
Inotantly admitted, although the two cases are yery distinguish- 
able from each other. In the last, fraud constituted the founda- 
tion of the action, the suit was brought upon the fraud, but in 
Jfifes ▼. Berry, it was on the note. The evidence showed that 
the defendant had fraudulently obtained possession of it, and 
<concealed that fact till the statute of limitations had run out. 
In reply to a plea of the statute, it was contended that this 
fraudulent conduct prevented the running of the statute. But 
the court, true to the principles which are administered in a 
•conrt of law, held otherwise. It was said that if the plaintiff's 
action was predicated upon the defendant's fraud, as in action 
on the case for fzaudulently obtaining possession of a note, or 
an action of trover for its recovery, it might then be urged that 
tht» statute would not run. Admitting that this distinction is 
well founded between those actions whichare founded upon the 
frand and those which are not, though I confess I am by no 
means satisfied vnth it, the authority of HarreU v. Kelly will still 
atand, while Miiea v. Berry is a direct and decisive determina- 
tion against the validity of the replication in the present case. 
In South Carolina there is a court of chancery, and as I before 
remarked, the decisions in thtf different states vary yery much 
according to the constitution of their tribunals. 

CaUis y. Waddy, 2 Munf. 611, and Cook y. Darby, Id. 
444,' enforced the same doctrine. The last was an action 
against a common carrier for fraudulently taking articles from 
the packages intrusted to him to carry. To a plea of the stat- 
ute, it was replied that the plaintiff had no knowledge of the 
fmud till within the time limited, but the court held the action 
barred. In this case, too, it must be remembered the action 
was founded upon the fraud. This case then goes further than 

1. 4 Uvad.Ui; 8. O., 6 Am. Dw. S2». 



106 Fee v. Fee. [Ohio. 

that of MUes t. Berry, though not farther, I am oonvmoed, than 
the courts of South Carolina would go if the case of Harrel t. 
XeUy were not in the way. Yixginia, however, as well as South 
Carolina, had a court of chancery, at least when these two cases- 
in Munford were decided. On the other hand, in Janes t. Gono- 
way, 4 Yeates, 109, and in 12 Sezg. & B. 128/ the courts of that 
state appear to be disposed to administer equitable relief. 

The most luminous and best considered case to be found in. 
all the books, is undoubtedly that of nvup ▼. SmUh, 90 Johns. 
83. It was there held, in an action of assumpsit, for negligence 
and unfaithfulness in the performance of work, that the plaint- 
iff, in answer to a plea of the statute, can not reply a fraudulent 
conceabnent of the badness of the work, in consequence of 
which the plaintiff did not discoTcr the fraud until within six 
years. The distinction between the proper jurisdiction of courts- 
of chancery and courts of law, was stated and unanswerably en- 
forced. The reason why a party may ayail himself of the fraud 
in the former courts, is well explained by Lord Bedesdale, 2: 
Sch. & Lef. 634.' Althou^^ the statute, he says, does not in 
terms apply to suits in equity, it has been adopted there in 
analogy to the rules of law. And the reason which he gi^es why, 
if the fraud has been concealed by the one party untQ it ha» 
been discoTcred by the other, it shall not operate as a bar, is, 
that the statute ought not in conscience to run, the consdenoe- 
of the party being so affected that he ought not to be allowed to* 
avail himself of the length of time. But in a court of law, the- 
statute must necessarily receive a strict construction. That 
court can not introduce an exception to the statute which the- 
legislature have not authorized. In Evans t. BickneU,, 6 Yes. 
174, Lord Eldon, in noticing the position of some of the com- 
mon law judges in Paisley t. Freeman, that if there was relief 
in equity there ought to be relief at law, observes, that it was a 
proposition excessively questionable, and that it could only 
have been made from not adverting to the constitution and doc- 
trine of a court of chancery. I agree with the opinion in Troup 
V. SmUh, that as the statute declares that certain actions shall 
be commenced within a limited period, the courts of law pos- 
sess no dispensing power whatever. The law of Ohio, like thai 
of New York, contains a saving in favor of inhjitB, femes-covert, 
non-residents, and persons nan compos, but it does not make* 
fraud one of the exceptions. The true inquiry, therefore, at 
law is, when did the cause of action arise? and not, when did 

1. MelhwtU ▼. Tmmg. S. S99€mdm r. ^mmfif. 



Dec. 1841.] Fee v. Feb. 107 

knowledge of that fact come to the plaintiff, or by what circum- 
fitances was he preyented from obtaining the information? 
These are questions which may be properly addressed to a court 
of chancery, but of which a court of law is bound to have no 
knowledge, l^roup v. Smith was also decided in a state which 
has a court of chancery, and the bounds of the jurisdiction of 
the other court are therefore preserved. 

Whateyer may be thought of the propriety of having two 
tribunals administering a totally different law, yet so long as 
they exist, every motiye of convenience and justice concurs in 
securing to each its appropriate functions. There may be no 
other use in this arrangement, than what arises from the great 
principle of the division of labor, in consequence of which all 
human exertion, whether it be of the mind or of the body, is sure 
to be more vigorous and successful. When the rules of equity 
law were first introduced, they were only scattered exceptions 
to the general system of jurisprudence. They did not themselves 
constitute a system. They gained ground only occasionally, 
and by piecemeal. But at the present day equity law is as regu- 
lar a scheme of jurisprudence, and proceeds upon rules as com- 
pletely settled as those which are dispensed by the common law 
courts. To confound the distinction between the two tribunals 
now, would be not merely to invade a solitary and occasional 
exception to a rule, but to oyertnm a whole system, and for that 
reason to introduce the greatest injustice into the administration 
of the lavTS. 

Demurrer sustained. 



Statute ov Ldotations BEonre to Run when the oanse of aotioii aocmea,. 
not when a person ignorant of his rights oomes to a knowledge of them : Thomas 
Y. WhUe^ 14 Am. Deo. 66; Jordan v. Jordasa^ 16 Id. 249; BmiJth y. Biihop, 31 
Id. 607; bnt the statute does not mn until there is some one in whom the 
right of action is indubitably vested: Cfommonwealth ▼. MeOoioan, 7 Id. 737; 
Buff ▼. BuU^ 16 Id. 290; McDonald v. Walton, 14 Id. 318; and where a de- 
mand is necessary the statute does not begin to run until the demand: WrigH 
▼. HamUion, 21 Id. 513; Judah ▼. DyoU^ 25 Id. 112; Bherrod v. Woodard, 25 
Id. 714. 

How FAB Fbaxtd Pbyvxnts Bdnitino of Statute. — Lapse of time brought 
about by the improper conduct of a party can not avail him: App y, DreU- 
bach, 21 Am. Dec. 447; Richardson v. Jones, 22 Id. 293; Arnold v. BeoU, Id. 
433. And ignorance of fraud prevents the running of the statute: Shelby v. 
Shelby, 5 Id. 686; Homer v. Itsh, 11 Id. 218; First Mass, T. Corp. v. FiM, 
3 Id. 124. Though in Beeves v. Dougherty, 27 Id. 496, it was held that the 
statute of limitations applied where possession was acquired by fraud. The 
principal case was followed in Laihrop v. Sndlbaker, 6 Ohio St. 278, and cited 
to the effect that fraud does not prevent the running of the statute, in Howk 
V. MifuMt. 19 Id. 466. 



OASES 



IN TKB 



SUPREME COURT 

or 
PBNNSYLYANIA. 



Wbioht V. Gums. 

[9 Wash* ITS.] 
OWMIB OV hikhD OUT OV PoflSnSIOK MAT MaXHTAIH TsOYIE IQB 

eat tberean by one not in aotnal poseeasioa of the premiiei. 

LraLOSUBB AND CULTIVATION ARB NBGB88ABT TO GoNSTITUTB AdI 

PoflBSBBiOH of a tract by one having no color of title, so as to protect him 
from an action of trover by the real owner for timber oat thereon. 
Bbpkatbd TjBBSFAsan bt Cuttino Tdcbsb on Unoooupded Wood Land, 
by the owner end oocapant of an adjoining tract, do not conetitate each 
adverse possesrion as to defeat an action of trover for each timber by the 
leal owner; and a parohaaer of the land on execntion against saoh tree* 
passer, who oontinaes to trespass thereon in the same way, is eqnally 
liaUe. 

Ebbob to the Dauphin comily oommon pleas, in an action of 
trover for the value of oertain wood cut by the defendants on 
the land of the plaintiff's intestate. The title to said land was 
dearly in the plaintiff's intestate; but the defendants daimed 
that they were in possession under color of title, and therefore 
not liable in this action. It was proved by the defendants that 
they had purchased on execution against one Cardon, in 1833, 
oertain properly called the *' Victoria iron works," with about 
one thousand six hundred acres of land attached thereto, the 
description of which in the levy was shown to indude the tract 
on which the timber now in question was cut. It appeared in 
evidence that this tract adjoined that upon which the iron works 
were situated, and of which Cardon was, before said execution, 
the undisputed owner; that Cardon said the tract bdonged to 
him, and he had been in the habit of cutting wood, and making 
eoals and rails thereon, from 1829 to 1838; but that he had never 



Hay, 1840.] Wbioht v. Gtjier. 109 

indoBod or oolimted it» or made any improvements on it. 
Thfite had been a house on it, which had fallen dofwn before 
Oardon built the iron works. It also appeared that the def end- 
ants, since their pnrohase, had cut wood on theland. The judge 
before whom the cause was tried instmcted the jury, among 
other things, that the defendants had not shown such posses- 
sion as would make them liable in ejectment, and, therefore, 
that tfaej had not such possession as wonld defeat an action of 
trover. Yerdict and judgment for the plaintiff, and the defend- 
ants brought exror. 

fbder^ for the plaintiff in eixor. 

Johnston^ for {he defendants in enor. 

By Court, Gibsoh, 0. J. Though trover is said not to be a 
proper action to try title to land, it is certain that it may be 
supported for the price of what was a part of the freehold, con- 
verted after severance from it, if the wrong-doer were not in the 
actual and exclusive possession. Such appears, from Player v. 
BoberiBy 1 Jones, 218,' to be the law of the English courts, and 
if we regard no more than the naked point determined by our 
own, we shall see that our decisions, though full of jarring dicta, 
entirely agree with it. In MalOier v. Trinity Church? [8 Am. 
Dec. 668], which was the fibrst of them, it was rtded that trover 
for stone and gravel dug from a quany, lies not by one who has 
the right of possession, against one who had the actoal posses- 
sion. Next in Baker v. HcweU? it was ruled that assumpsit for 
money had, lies not for the price of sand sold from a bar of 
which the defendant was found to be in possession. Finally, in 
Brcvm v. Caldwell*^ [18 Am. Dec. 660], the same principle was 
asserted in respect to replevin for dates quarried by a parly who 
was an occupant. So far both decisions and dicta agree, and it 
is therefore to be taken for settled, that such an action lies not 
against a parly who was in actual possession at the time of the 
severance. But no court has adjudged, nor can it be maintained 
on principle, that it lies not for a party out of such possession 
against a casual trespasser. Such a decision would disaflSrm the 
well-founded principle, that legal seisin carries the possession 
with it wherever there is no adverse possession to displace it; 
and as there is no adverse possession of trees without possession 
of the land on which they grow, the property and possession of 

them as chattels, at the moment of tfileir severance by a casual 

^^^— ^— ^— ^i^^^^— »^— ^"^' ■ ■ — ^^^— ^— ^^ - ■ I ■ 

L Sir Wm. Jonw, aO. 3. 6 Seig. k S. 47C. 

S. a 8«f. Ii B. 600. 4. 10 BMg. k B. U4. 



110 WaiQHT V. GuiER. [Penn. 

trespasser, are united in the owner of the inheritance. Trover 
is not so exduBiTely founded on possession as trespass; and if» 
as is nniTersallj conceded, a constnictiTe possession of unoc- 
cupied land is sufficient to support the latter for the felling of 
a tree, why may it not support trover for the asportation and 
conversion of it? The difference between the actual and con- 
structive possession of a plaintiff consists not in an effect 
peculiar to either, but in the nature of the evidence necessary 
to establish it. The former is susceptible of proof by oral testi- 
mony, while the title must be produced to establish the latter; 
and hence a supposed locality of any action depending on it; a 
ground of objection not open to the parly in this instance, as 
the action is in the county where the land lies. Of the incon- 
gruity of making trover a local action, and of the consequential 
inference that, being essentiaily transitory, it must be sustained, 
if at all, indifferently in the county and elsewhere, I shall speak 
when I shall have spoken of the defendant's claim to have been 
in the actual possession. At present I admit that if the action 
might not have been as well brought out of the county as within 
it, it can not be maintained. 

Why should the defendants' undisputed possession of theix 
own land be extended to the locus in quo t Even colorable title 
to it they had not. The Yictoria works were started in 1829, and 
notwithstanding the absence of pretext for claim, this tract was 
used as woodland, from the first, as if it was a part of the do- 
main. Wood was cut on it for coals and for rails, by direction 
of the manager, who also disposed of bark from it at a neigh- 
boring tannery; subsequently to which, the estate was seized in 
execution, and sold to the defendants, by boundaries which in- 
clude the tract in question; and having thus received it, they 
cut the wood in question. A house that once stood on it had 
fallen down; and there was no clearing on it or inclosure what- 
ever. Besides, during all the time mentioned, the plaintiff's in- 
testate had paid the taxes. Such are the few and simple ele- 
ments of what has been called a case of actual possession. Hap- 
pily we have a standard for the measurement of it. " When I 
speak of possession," said Mr. Justice Duncan in Brown v. 
CaldiveUy^ ''I mean an actual occupation; not a bare, solitaiy 
trespass by an intruder, but an actual, visible, notorious occu- 
pancy." But is there a difference, as regards occupancy, be- 
tween a solitary trespass and repeated trespasses ? None has 
been taken in any book of authority, and none can be taken in 

1. 10 tav* iE B. 114. 



May, 1840.] Wbiqht v. Guieb. Ill 



treason. There oonld be no action of trespass with a cimtinuando^ 
if an ouster is necessarilj constituted bj indefinite repetitions of 
the injury. For this reason it is, that the ouster in the declara- 
iion in ejectment, was not laid with a cofnimuando; in conse- 
•quenoe o£ which, it was thought that mesne profits could not be 
recoYered in that action; for, proceeding on the ground of an 
•ouster, the plaintiff, though he reooTered damages for the cir- 
euxnstaaces immediately attendant on it, could not maintain 
trespass for any injury subsequent to it, till he had regained the 
possession by the retroactiTe operation of an entiy by process or 
otherwise. If repetition of a trespass alone, then, does not 
necessarily constitute an ouster, with what sort of occupancy 
must it be attended to have that effect? In Johnston y. Irwin, 
8 Serg. & B. 291, it was ruled that though residence is not a 
necessary ingredient of adyerse possession, there must be in* 
closure and cultiyation. This was indeed predicated of posses- 
sion to raise the bar of the statute of limitations; but why should 
there not be the same degree of possession, to bar an action for 
the produce of the soil, that is necessary to bar an action for the 
soil itself? Such an occupancy is indefinitely continuous, 
while the occupancy of a trespasser, who neither cultivates nor 
incloses, continues no longer than he remains in contact with 
the soil. 

But it is supposed that a resident on adjoixiing land is in ac- 
tual possession of all he uses for his ordinaiy purposes, accord* 
ing to its kind, as a part of his domain; and in this lies the vice 
of the argument. Where a particular tract of land is occupied 
by a resident on it, under a colorable titie, his possession of it 
is co-eztensiTe with the lines of the survey; but it is not admit- 
ted that he gains possession of his neighbor's unoccupied tract 
by crossing the intermediate boundary to trespass on it. '' It is 
evident," said Mr. Justice Yeates, in Oray v. McCreary, 4 Yeates, 
496, ** that in a question of boundaries, evidence of possession 
does not apply with the same degree of force as when the whole 
of a tract is held adversely against the claimant." The entire 
course of the decisions has been to restrain possession without 
at least colorable title, as strictiy to indosnres in this country, 
as it has been in England, and the English principle certainly 
is, that constructive possession is not to be admitted in the case 
of an intruder; as an exception to which, nothing gave rise to 
the notion that it was not imiversally applicable to lands in 
Pennsylvania, but our customary law of acquiring titie to the 
lands of the state by settlement, which suggested to those who 



1 1 2 Wbight v. Qvdsbl [Penn. 

bad entered on appropriated land^ the notion of claiming, bjr 
the statute of limitations, as much as they oonld have held bj 
an improyement. Such a claim, however, has been oonstantl; 
disallowed; and there never has been conceded to the possession 
of a trespasser, in the guise of a settler on appropriated landt 
without warrant or location, a single incident or feature of an 
improvement. Now, what difference, as to constmctive posses- 
sion, is there betwixt a settier seated on the tract itself, and one 
who, seated on an adjoining tract, cuts his rails and firewood on 
his neighbor's land as if it were his own? Certainly there is 
none in favor of the latter, coming in as he does with no design 
to hold the land bj his entry, and taking no sobseqnent step 
to acquire it as a setUer. If a setUer on appropriated land shall 
not be deemed in constmctive possession of woodland used by 
him as such, why shall a non-resident? But even constructive 
possession would ill serve the purpose of defense in an action 
like the present; for when an intruder is not in actual occupa- 
tion, the constructive possession is in him who has the righir— 
which, it will be seen, is sufficient to support the action. 1 
grant that such a trespass may be a disseisin to support an 
ejectment at the election of the disseisee, but it certainly would 
not constitute a disseisin of him against his will. The booka 
are full of cases illustrative of the distinction. Nor would 
the trespasser acquire a possession within the protection of 
the statutes of forcible entry and detainer. Why, then, 
shall he not answer in trover for the conversion of treea 
turned into chattels by his trespass? '* The owner of a tract of 
land in Clearfield county," said Mr. Justice Duncan mBroum v. 
Caldwell,^ ''whose timber has been taken by a trespasser and 
sawed into boards, follows it to Lancaster county, and replevies 
it in the streets of the city; the doctrine of venues shows that this 
can not be done." In Player v. Boberts,* however, the same 
thing in principle was actually done. '' If," as he had said in 
the same breath, '' incidentally titie in such action may be called 
in question," why may it not be done in all cases of the sort 
without regard to the locality; or how can it be called in ques- 
tion in an action of trover otherwise than incidentally ? He evi- 
dentiy thought, that it comes into question direcUy, where it is 
the foundation of the possession; and incidentally only, when ii 
is the consideration of a contract, which may be sued upon 
anywhere, because contracts have no locality. But neither haa 
conversion locality; and titie to land may be as much involved 

1. 10Bare.liB.Ui. 2. sir Wm. Jonas, MS. 



May, 1840.J Wbight v. Gxher. 113 

in the one as in the other. Nor does it follow that a dispute 
about the possession depends, in all cases, on the title; the right 
to the one, and to the other, are different things. Title, in an 
action like the present, by which compensation for a trespass is 
demanded, and not the land, is not the plaintiff's case; nor is 
it directly put in issue by the pleadings: it is questioned inci- 
dentally, if at all, like any other fact introduced by the eyidenoe. 
It was, in truth, not questioned at all in the instance before us. 
It is not perceived, therefore, that the doctrine of yenues fur- 
nishes an objection to a personal action. If it did, it would ex- 
pose the wild lands, not only in Clearfield county, but in eyeiy 
other on the Allegheny and the branches of the Susquehanna, to 
jrillage, for which there would be no redress. Trespassers on 
these axe seldom found in the county to answer an action, nor 
are they often of sufficient ability to respond in damages; by 
reason of which, the only efficient remedy of the owner is pur- 
suit of the property. A temporary sawmill is put up on the 
first conyenient stream, without rc^fard to tract or suryey; and 
if this is such a possession of the contiguous tracts from which 
timber is taken in the course of the sawyer's business, as to pre- 
yent the owners from following it in specie, or if they are 
preyented from doing so, independently of the question of pos- 
session, by a supposed locality of the injury, they are left with- 
out a praotioal remedy. Is not the sawyer^s case, in principle, 
that of an iron-master, who, once in fifteen years, uses an adja- 
cent tract of unseated land to strip it of its timber, while he 
leayes eyery other act of ownership, such as payment of taxes, 
to be performed by the rightful owner? The wood is usually 
coaled on the land; and hence there is said to be at least a tem- 
porary ixissession' during the process. But the same may be 
said of a shingle-taker's occupancy of his shed, while he works 
up the product of his trespass. 

The true reason why troyer or repleyin lies not against an act- 
ual occupant, is not any supposed locality of the question, but 
the impolicy of suffering him to be harassed with a separate ac- 
tion for each bushel of wheat consumed, or stick of firewood 
burned, on the premises, instead of haying the matter settled at 
once by an action to recoyer the possession. Chief Justice 
Tilghman glanced at it in Mather y. Trinity Churchf [8 Am. Dec. 
663], where he said the owner might first recoyer the possession 
by ejectment, and then recoyer the mesne profits by an action 
of trespass. There is substance in a reason like that; but there 

Am. Dm. you ZXXyi-« 



114 Wright v. Guier. [Pemu 

is only fonn in an objection on the doctrine of venue, whose 
general inoonyenience is manifest in the efforts of the profes- 
sion to get away from it. Though all personal actions were 
transitory at the common law, because, as it was said in BiUtoer^s 
case, 7 Rep. 61, debitum et contractus sunt nuUius loci, yet to the 
intent that debt, account, and all such actions, diould be 
brought in the county where the contract was made, it was 
enacted by 6 Bich. U., c. 2, that if it appeared by the dedaza- 
tion that the action was not brought in the county in which the 
contract was made, the writ should abate; in the interpretation 
of which it was held that if the discrepance appeared entirely 
by the record, it would be error — an interpretation which pre- 
cluded an advantage from a discrepance between the declara- 
tion and the evidence at the trial. And the inconvenience of 
the statute is still further visible in the fiction employed to 
elude it in an action on a foreign bill, bond, or note, which 
must be described as having been made at the place where it 
bears date; in regard to which the practice has been to state the 
place truly, and then to aver that it is in the county in which the 
action is brought, as, for instance, "at Calcutta, in the East 
Indies, to wit, at London, in the ward of Cheap." Much as I 
dislike fiction in these matters, I would, were it necessary, con- 
sent to support an averment that Clearfield county, or any other 
place, is in the streets of Lancaster, rather than suffer an injury 
to pass without a remedy. In the leading case of Fabrigas v. 
Mostyn, Cowp. 176, Lord Mansfield said: There is a substantial 
and a formal distinction as to the locality of trials. The sub- 
stantial distinction with regard to matters arising within the 
realm, is where the proceeding is in rem, and where the e£Bdct 
of the judgment could not be had if it were laid in a wrong 
place, as in the case of ejectments, where possession is to be 
delivered by the sheriff of the county; and as the officers are 
county officers, the judgment could not have effect if the action 
were not laid in the proper coimty . The formal distinction arises 
from the mode of trial; for trials in England being by jury, and 
the kingdom being divided into counties, and each county being 
considered as a separate district or principality, it is absolutely 
necessary that there should be some county where the action is 
brought in particular, that there may be process to the sheriff of 
that county to bring a jury from thence to try it." After this, 
is it not too late to insist on the old distinctions by which every- 
thing that savored of the land was local; as debt for rent when 
not founded on the contract; debt against the executor of a 



Hay, 1840.] Wright t;. Guieb. 115 

tenant for life; debt by an executor for the arrears of a rent 
charge; debt in the debet and detinei against the executor or ad- 
ministrator of the lessee: and a thousand other instances men- 
tioned in Bulwer^s case t 

An objection on the ground of locality is purely technical, 
and not to be fovored; for there is nothing inherently local in 
the trial of title to land; and if there were, an objection on the 
foot of it would prevail in all cases, whether it were incidentally 
drawn into contest or not. The muniments of it may be pro- 
duced everywhere with equal facility; and the witnesses to the 
&ct8 involved in it as often reside out of the county as within 
it. The jurors of one county too, are just as competent in 
respect of moral and mental qualifications as those of another. 
But though popular prejudice against a party or a title some- 
times makes its locality a grievance, 1 admit that where the land 
itself is demanded, the action must be brought in the county, 
and the same thing may, perhaps, be said of trespass, in which 
the issue is, or may be, formally joined on the title. In the case 
before us, the issue was not on the title; and that it was intro- 
duced into the case by the evidence, shows that it was only in- 
cidently involved. But the doctrine of locality has been urged 
for the sake of an argument deduced from its general conse- 
quences. No objection was made on that ground in Player v. 
Eobertsf^ and we are to conclude that it was thought to be un- 
tenable. In the case before us, possession from title having 
been shown, without adverse possession to rebut it« the plaintiff 
was entitled to recover 

Judgment affirmed. 

Pbopbbtt Nboesbart to Maintain Tbovxr por Chattxls: See /7«m(§- 
pdk V. IVUmm, 21 Am. Deo. 944, and other omm and aonolationa in thii 
eeries ref eired to in the note thereto. The general owner, thoogh oat of pos- 
eeaeion, may maintain trover for ohattela against a stranger who takes them 
«way: Bird ▼. Clarke 3 Id. 260. Trees cut on land held temporarily by an- 
other become personal property, and belong to the owner of the inheritance^ 
who may maintain trover therefor: TVum y. OU, 18 Id. 748; see also, Mooen 
▼. WaUt 20 Id. 667. The general owner can not maintain trover against one 
in actual adverse possession of land for stone and gravel taken therefrom: 
Mather v. Trinii^ Church, 8 Id. 663, and see the note to that case. Nor will 
replevin lie by the owner of land against one in actnal possession, mider 
daim of title for slate taken, or trees cat ther efro m; Broum v. Oaldwelit It 
Id. 660; Snyder v. Vaux, 21 Id. 466. 

Ai>vBB8E Po8S£S8iON, What Nkcrssabt TO GoNBTiTUTB: See RuBg V. 
ShfonAerger, 26 Am. Dec. 05, and the note thereto collecting the previons 
notes and cases in this series on the same subject. See also Sumner v. Mvrphy, 
27 Id. 307, andnote; SmUhY. Hosmer, 28 Id. 354. Thedoctrine laid downin 

l.SlrWm.JeiMiultt. 



116 Weakly v. Bell. [Feim. 

the abo>ve reported case of Wright v. Outer, that the use of a tract of unseated 
laod as a wood-lot is not sufficient to oonstitute such an adverse possession as 
will oust the real owner's right to sue in troyer for the wood so taken* is ap- 
proved and held to apply also to an adverse possession under the statute 
of limitationB, in Sorber v. Willing^ 10 Watts, 141. The case is also referred 
to as an authority as to what is sufficient to constitute adverse possession, in 
Baring t. Peiree, 6 Watts & S. 662, and Adams v. Robin&m, 6 Pa. St, 272. 
In case of uncultivated land, possession can be proved only by proving titlei 
Harlan v. Harlan, 16 Id. 616, citing Wrighi v. ChUer. 



Weakly v. Bell Ain> Sxeblxng. 

[9 Watxs, 878.] 
FteOV OV P&IOB OB ImXBlCEDIATB InDOBSSMBNTS IS UNNBOiaaABT Ib Ml 

action by an indorsee against an indorser of a note, to entitle the note to 
be admitted in evidence, where such indorsements are not avenred in 
the declaration. 

InwBSBMENT OF NoTB IS AK Admibsiob of the drawer's handwriting and ol 
all prior indorsements on the note. 

FoflSBSsioir or Notb bt Indobsbb is Pbuca Fagib Etidbhoi that he baa 
paid it and taken it up, as against a prior indorser, where the indone- 
ment is in blank. 

Fteov or Posting or Notiob of Dishonob of Notb to be sent by mail to an 
indorser, must be distinct and certain. Aooordingly, where a witness 
deposes that he oaused the notice to be sent, and that " to thebeet of his 
knowledge" the letter was put into the post-office, becanse he is not 
aware of any n^leot of that kind having ever oooorxed in the holder's 
store, is insufficient. 

Hon GivBN BT Makbb of BnaoNOBBD Notb fob Sahb Bbbt, payable at a 
fatare day, without any new consideration, or any agreement to extend 
the time or to give up the old note, or to take the new note in aatisfao- 
tion of the old, does not discharge the old note or release an indotMr 
thereon. 

HonCB OF NOB-PATMBNT OF NOTB DiBBOTED TO InDOBSBB at hlB pUuM of 

residence, ** Wabiut Bottom, near Carlisle," the county town, Walnnt 
Bottom being a well-known place in the county, is sufficient, althon^ 
unknown to the holder, there is a poBtH>ffice much nearer the indocser's 
residenoe than Oarlisle, at which he usually gets his letters, and although 
there are other persons in the county of the same name, but not residing 
so near to Walnut Bottom. 

Ebbob to the Oumberland countjy ooinmon pleas, in an action 
of debt on a note. The defendant was the second indorser on 
the note, and the plaiTi tiffs were subsequent indorsers. There 
was one intermediate indorser, and there were also some indorse- 
ments subsequent to that of the plaintifiEs, which are sufficiently 
referred to in the opinion. The defendant's indorsement was 
admitted, ^d the note was then offered in eyidence, but objected 



May, 1840.] WEAKLY v. Bell. 117 

to by the defendant, because there was no proof of the prior and 
intermediate indorsements, and no proof of title in the plaintifiis, 
and because the note offered in eyidence was not the same as 
that described in the statement. The note was admitted and a 
bill of exceptions sealed. To prove notice the plaintiffs intro- 
dnoed a deposition of one Heli, who testified that '* he caused 
to be put into the post-office/' at the plaintiff's request, a letter 
to the defendant, a copy of which was annexed to the deposition, 
which letter was directed to the defendant at " Walnut Bottom, 
near Carlisle, Pa.," and that " to the best of deponent's knowl- 
edge this letter was put into the post-office, for he is not aware 
of any n^lect having ever occurred in the store of this kind." 
The defendant objected to this as insufficient evidence of notice, 
and introduced evidence to show that there was no post-office at 
"Walnut Bottom," but that there was a post-office called^ 
*< Dickinson," half a mile from the defendant's residence; that 
be resided nine or ten miles from Carlisle, and that there were 
two othdr i>ersons of the same name residing in the county nearer 
to Carlisle than himself. The court nevertheless admitted the 
deposition, and allowed a bill of exceptions. On the part of the 
defendant, evidence was introduced to show that after the ma- 
toriiy and protest of the note two new notes were given by one 
of the makers to the plaintifls for the amount, including also an- 
other debt owing to the plaintiffs, and payable a certain nimiber 
of days after date. There was conflicting evidence as to whether 
these notes were given as collateral security or in satisfaction of 
the old note. The evidence on that point is suffioientiy stated 
in the opinion. The def endi&nt requested the court to instruct 
the jury in substance as follows: 1. That if the notes referred 
to were taken by the plaintiffs for the note in suit, and for an- 
other debt in which the indorsers had no interest, payable at 
future times, the defendant was discharged; 2. That if, in addi- 
tion to the foregoing facts, it should appear that the makers had, 
while the new notes were running, ample property out of which ,^ 
the money could have been made, the indorsers were released; 
3. That if the plaintiffs, having indorsed the note to other par- 
ties, who in turn had indorsed it to others, tlie plaintifls, to prove 
titie to it, must show that they had paid it; 4. That if the jury 
beUeved the evidence introduced by the defendant in support of 
lus objection to the proof of notice, that proof was insufficient: 
5. That the evidence as to putting the notice into the post-office 
was not legal evidence. The court charged the jury in answer 
to the first and second points, in substance, that it was for them 



118 Weakly v. Bell. jTeniL 

to Bay, upon the eTidenoe, whether the new notes were taken in 
lieu and in eatisfaction of the note in suit, or as collateral ae- 
curiiy; if the former, the plaintiffs cotdd not recover, otherwise- 
they could; and the court farther expressed its opinion that the 
evidence indicated that the notes were taken as collateral security. 
As to the third point, the court charged that the plaintiflw as 
subsequent indorsers of the note, having possession of it, and 
all the indorsements being in blank, could pass over or strike 
out all the indorsements subsequent to the defendant's, and re- 
cover on the note without proving that they had paid it and 
taken it up, their possession being prima/aoie evidence of tifle. 
As to the fourth and fifth points, the court refused to charge as- 
requested. Verdict and judgment for the plaintifiEs. The errors 
assigned by the defendant all appear from the opinion except 
the fourth, which v^as that the court erred in their answer to the 
defendant's third point. 

Watts and Jlexander, for the plaintiff in error. 

Oraham and Biddle, for the defendants in error. 

By Oourt, EBNinsDT, J. The first error assigned is an excep- 
tion to the opinion of the court below, admitting the note, vritb 
some of the indorsements thereon, to be read in evidence to the 
jury, without proof having been first made that all the indorse- 
ments were true. It certainly was not requisite to make proof 
of all the indorsements as they appeared on the notes, to entitle 
the plainti£Es below to give it in evidence to the jtiiy , unless they 
had been averred in the declaration to have been made, which 
does not appear to be the case; nor yet to entitle them to recover 
the amoimt of it. Proof that the note was indorsed by the de- 
fendant below to the plaintiflh, if he were their immediate in- 
dorser, or if there were an intermediate indorser, and it be 
stated in the declaration, then, perhaps, also of such indorse- 
ment, was all that was necessaiy to give the plaintiffis a right to- 
have the note read in evidence to the jury. But if such inters 
mediate indorsement be omitted in the declaration, the plftmHffif 
had a right to strike it out on the trial, as the first indorsement 
was in blank, and to proceed as if it had never been on the note: 
Cooper V. Lindo, B. B., 3 Selw., 4th ed., 856, note E; Boaan- 
qwet V. And/erwn^ 6 Esp. 43; Sidford v. Chambers, 1 Stark. 826; 
Wahoyn v. St. Quintiny 1 Bos. & Pul. 658; Charters v. BeU, 4 Esp. 
210; Smith v. Chester, 1 T. B. 654; Morris v. Freeman,^ 1 Dall. 
193; Craig v. Broas* 1 Pet. 171. The indorsement of the de* 

1. JforHt T. F o r tmam ; S. O., 1 Am. Deo. 98S. S. Ormig T. Brmpn, Pet 0. 0. Ifl 



May, 1840.] Weakly v. Bell. 119 

fendant below was admitted to have been made by him, which 
was the Teiy best proof of the fact that it was susceptible of, 
and of course rendered any other or further proof thereof un- 
necessary. His indorsement, therefore, being thus established, 
was sufficient not only to bind him, even if the note and the 
prior indorsements thereon had been forged, but was in effect 
an admission of the handwriting of the drawer of the note, and 
all prior indorsements thereon: Lambert y. Pack, 1 Salk. 127; 1 
Ld. Kaym. 443; 12 Mod. 244; S. C, Holt, 117; Free y. Haw- 
kins, Holt N. P. 0. 550; Criichlow y. Parry, 2 Camp. 182; Char- 
ters y. Belly 4 Esp. 210. And as to the interest of the plaintiffs 
below in the note, at the time of the institution and trial of the 
action; their haying possession of it was prima facie evidence 
of their right to demand payment from the defendant. It is 
true that the plaintifb, before the note became payable, being 
holders of it, passed it away by indorsement to Homer & Wil- 
son, and they to Mr. Andrews, who transmitted it to the Oar- 
lisle bank for collection, where it was protested at maturity for 
non-payment; but the indorsement upon it being in blank, and 
the plaintiffs afterwards having obtained the possession again, 
was prima facie evidence that they had paid and taken it up: 
Oarguai v. McCarty,^ 2 Dall. 144; S. C, 1 Yeates, 94; Pigot v. 
Clark, 1 Salk. 126; S. C, 12 Mod. 193; Norria v. Badger, 6 
Cow. 429;" Ellsworth v. Brebier* 11 Pick. 316; LmsdaJe v. 
Brown, 3 Wash. 0. 0. 404. We therefore thiok that the court 
below were right in permitting the note, with the indorsement 
of the defendant, to be read in evidence to the jury. It will 
be sufficient to remark here, in answer to the fourth error as- 
signed, that the last position laid down above, and the authori- 
ties cited in support thereof, show clearly that it can not be 
sustained. 

The second error assigned is also an exception to the opinion 
of the court, admitting tiie deposition of James Heli, as evidence 
to prove that a notice was put into the post-office, addressed to 
the defendant, advising him that the note had been duly pro- 
tested for non-payment. The first ground of objection to this 
deposition, as being given in evidence for such purpose, is the 
only one which can be regarded as having any weight. It is 
this, that the deponent, from what he has testified to on the 
subject, shows, in effect, that he neither put the notice into the 
post-office himself, nor did he see it done, but thinks it was 
done, because he knows that such notice was made out, and left 

I. O0rg€rai t. McOartif ; S. C, 1 Am. Deo. 970. 2. 6 Oow. 449. 8. EtUwmik t. BreiMr. 



120 Weakly t;. Bell. [Penn. 



for or giTen in ohaige» as may be infeixed, to one in the store, 
whose business it probably was to take the letters thenoe and 
pat them into the post-office; and that he was not aware that 
any neglect on the part of each person to do so had oyer oc- 
curred. Notice sent by the post, properly directed, is soffident, 
though the letter containing it should miscaziy: EsdaXU v. 
Sowerby, 11 East, 117; Saundenon t. Judge, 2 H. Bl. 509; Doln^ee 
▼. Eastwood, 8 Car. & P. 260; SmiOi t. Bank of WiuhingUm, 5 
Serg. & B. 822; Smyih t. Eatothom, 8 Bawle, 855. But it must 
be proved certainly and distinctly that the letter was put into 
the receiying house or post-office: ScoU y. lAfford, 1 CSamp. 246; 
9 East, 847; SmVh y. JfuOetf, 2 Gamp. 208; EQUm y. Fairclough, 
Id. 683; Dobree y. Eastwood, 8 Car. & P. 250. And proof of 
the deliyeiy of it to a bellman in the street, will not be suffi- 
cient: Hawkins y. BuM, Peake, 186; Boscoe on Bills, 206. Nor 
will it be sufficient for the witness, called to proye the notice, 
to swear that he either put the letter into the post-office himself, 
or deliyered it to another clerk for that purpose; he must swear 
positiyely, and not doubtfully, to his haying put it in himself: 
Hawkea y. BaUer, 4 Bing. 715; S. C, 15 Eng. Com. L. 125.^ In 
has, howeyer, been said, if a porter be called, and he says, that 
although he has no recollection of the letter in question, yet 
that he inyariably carried to the post-office all the letters found 
on his master's table; and another witness proye that a partic- 
ular letter, giying notice, was so left, that may suffice: Sether^ 
ingUm y. Kemp, 4 Camp. 192; Chitty on Bills, 8th Am. ed., from 
the 8th Lond. ed., 511, 512. But eyidence short of this, to 
proye notice, ought not to be receiyed; or if receiyed, the court 
ought not to leaye the fact, of notice haying been giyen upon it, 
to the jury, to be decided by them; or if the court does so it 
will be error. In the case under consideration, then, it is mani- 
fest that the eyidence offered and receiyed fell greatiy short of 
anything that has eyer been ruled or said to be sufficient; and 
certainly did not go to show that the notice spoken of had eyer 
been put into the post-office. The deponent, by whose eyidence 
the plaintiffis below attempted to establish the fact, that notice 
was giyen, shows plainly that he did not put the letter containing 
it into the post-office, nor yet see it done; so that there was really 
no proof whatever giyen of the letter haying been put into the 
post-office at any time. We therefore think, that that part of 
Heli's deposition which relates to this particular ought to hare 
been suppressed and not giyen in evidence : or otherwise, when 

1« U Bng. Oom. L. 708. 



Vbj, 1840.] Weakly v. Bell. 121 

•ceiTed, that the ooort ought to have diiected the juzy, posithrely » 
to find a yexdict for the defendant below, because no eyidence 
had been given, tending to prove that notice of non-payment 
of the note in suit had been given to the defendant. 

The third error, which is the next in order, is an exception to 
ihe answers of the court, given to the first and second points, 
submitted by the counsel for the defendant below. The only 
question, seeming to arise out of these points, which can be re- 
garded as at all material to the defendant bdow is, whether 
taking, about a year after the note in suit had become payable, 
and been protested for non-payment, two new notes drawn by 
<3iay , one of the drawers of the first, as a collateral security for 
the payment of the debt mentioned in the first note, including 
also an additional sum of money owing by the drawers of the 
first to the plaintiffs, at fifteen and thirfy days thereafter, with- 
out any agreement on the part of the plaintiffs below to give 
time for payment of the first note, released the defendant below 
from his Uabiliiy as the indorser thereof. 

The evidence given on the part of the plaintiffs below, went 
to show clearly that they agreed to accept of the new notes as 
<sollateral securily merely, and that the old were not to be deliv- 
ered np, but retained by them. On the other hand, again, the 
evidence for the defendant tended to prove distinctiy, that the 
new notes were given in satisfaction of the old; and that it was 
the imderstanding, that the old should, upon the giving of the 
new, be delivered up; but that the plaintiffs, upon receiving the 
new, refused to do this. The court upon this evidence sub- 
mitted it to the jury, as a question of fact, to be decided by 
them, whether the new notes were given as collateral securily 
only for the debt mentioned in the old, or in satisfaction thereof. 
The jury, by finding for the plaintifiEs below, have decided that 
the new notes were given as collateral security merely. Upon 
this subject, the general rule seems to be, that if one indebted 
to another by simple contract, give his creditor a promissory 
note, drawn by himself, for the same amount, without any new 
eonsideration, the new note shall not be deemed a satisfaction 
of the original debt, unless so intended and accepted by the 
creditor: HaH v. BoUer, 15 Serg. & B. 162 [16 Am. Dec. 536]; 
jRoberta v. OaUagher, 2 Wash. 0. 0. 191.^ And most clearly all 
the authorities go to show that, at law, accepting of a securiiy 
of equal degree, either from the debtor himself, with or without 
a surety, or from a stranger alone, at the instance of the debtor. 



122 Weakly v. Bell. [Pepn. 

IS no eztinguishment of the first debt; as where a second bond 
is given to the obligee; for one bond can not determine the duty 
of another: Cro. Eliz. 304,* 716," 727 ,•■ Brownl. 74;* Cro. Car. 
86/ 86;* 1 Burr. 9;^ 1 Stra. 427 ;• Brownl. 47/ 71;^« Hob. 68, 
69;" 1 Mod. 226;" 2 Id. 136;" Cro. Jac. 579;" 3 Lev. 55;** 
HamiUcm v. Calender's Executors^ 1 Dall. 420. In LoveUice and 
Wife V. Oocket, Hob. 63-69; S. C, Brownl. 47, being an actiop. 
of debt upon a bond given to the wife when sole, the defendant 
pleaded, that at the day of payment, he and his son, naming 
him, gave a new bond to the wife, who was still sole, for the 
payment of the same money on a fatnre day, in satis&ction of 
the first bond, which was so accepted; whereupon the plaintiffe 
demurred; and the court gave judgment thereon in their favor. 
Nonoood V. Orype, Cro. Eliz. 727, is also to the same eflEecL 
And in Hawes v. Birch, Brownl. 71, the action being debt upon 
a bond, the defendant pleaded that a stranger, naming him, at 
the defendant's request, on the day the bond in suit became pay- 
able, made an obligation to the plaintiffs in lieu of the first debt; 
and it was adjudged by the whole court that the plea was naught. 
And it would seem as if the court thought the new bond rather 
of less force as a plea for the defendant, than if it had been 
given by himself, for they say, " being done by a stranger, waa 
by no means good." Neither could the defendant, I apprehend, 
even in equity, claim upon any principle of justice to be relieved 
from the first bond, without showing a distinct agreement, thai 
the second bond was given and accepted in discharge of the first: 
but if that could be made to appear, I do not see any reason 
why the defendant should not have the benefit of such agree- 
ment: Roberts v. OaUaghery 2 Wash. C. C. 191. 

In Day et al. v. Leal et oZ., 14 Johns. 404, it was held that & 
collateral security, even of a higher nature, as a bond and war^ 
rant of attorney, on which judgment is entered, does not extin- 
guish the original contract, as long as it remains unsatisfied. 
There the action was brought to recover the amount of two 
promissory notes; after they had become payable the bond and 
warrant of attorney were given by one of the drawers of the 
notes, to secure the payment of the same debt mentioned in 
them, and an additional sum of money owing to the plaintiffs 
by the obligor and another person, not one of tiie drawers of the 

1. SdltUm T. BoBtsr. 6. Maynard t. Crick, 11. Lov«Iac« t. O^dttL 

a. Manhood ▼. Cnek. 7. Boadet ▼. Bamn. 13. Blgtht v. J7tn. 

8. Nonoood ▼. Orypo, 8. Cumbe r ▼. Wtuu. 18. Pock ▼. BilL 

4. Bamdom'?, Turtom, 9. Looolaeor.CoekoL U. Lutterfordr.LoMmyro^ 

ft. Lootlaco T. CocM. 10. Bswet t. BirA 16. Lobly ▼. GUdart. 



May, 1840.] Weakly v. Bell. 12S 

Dotes. And the oourt seemed to think that the two drcnm- 
stanceSy to "wit, that of the bond and warrant being given by one 
only of the drawers, and the additional sum of money being in* 
eluded in it, tended strongly to show that the bond was intended 
to be only a collateral security. The like circumstances exist in 
the case before us, but with the addition of another circumstance, 
malring the case still more favorable for the plaintiffs, which is, 
that both securities are of equal degree. This court also held, 
in the case of WaOace v. Ibirman, 4 Watts, 878, that a specialty 
or single bill taken by the creditor of a firm from one of the 
partners thereof, for the payment of the debt owing to him by 
the firm, for which he gave, at the time, a receipt, expressing 
that .the spedaliy, " when paid,'' would be in full of his claim 
against the firm, and upon which he afterwards obtained a judg- 
ment, was no extinguishment of the original daim, because it 
appeared to have been taken as a concurrent and additional se- 
curity. But let us turn to cases resembling the present so 
closely, that they can not in principle be weU distinguished 
from it, and see what the rule is which has been applied in de» 
ciding them. 

In Pring v. Clarkmm, 1 Bam. & Oress. U; 8. C, 8 Eng. Com. 
L. 7, it was ruled that the acceptance of a new bill from the ac- 
ceptor of the first, after the latter had become payable, for the 
payment of the same debt at a future day, could only be consid- 
ered a collateral security, and therefore did not amount to or 
imply an agreement to give time to the acceptor, and conse- 
quently did not release the other parties to the bill first given. 
Abbot, C. J., in pronouncing the opinion of the court, says: 
<« In no case has it been said that taking a collateral security 
from the acceptor shall have the effect of giving time to him, 
and consequently of releasing the other parties to the first bill." 
Mr. Chitty, in his treatise on bills of exchange, 442 (8th Am. 
ed. from tbe 8th London ed.), though he admits the effect of 
this case to be, that the mere taking of fresh security from the 
acceptor for the payment of the money at a future day, without 
a bargain to give time, will not discharge the drawer or other 
parties to the bill; yet he makes a qtusrey whether the mere tak- 
ing or receiving further security, payable at a future day, would 
not, in general, imply an agreement to wait till it should become 
due. But in the previous case of Bedford v. DecUdn, Bicldey, 
and Hichmanj 2 Stark. 178, where the three defendants, when 
partners, drew the bill upon which the suit was brought, but 
subsequently having dissolved partnership, and Hickman having 



124 Weakly v. Bell. [Peim. 

become bankrupt, BioUey, wishing an arrangement to be made 
as to the securities which the plaintiff held from the three de- 
fendants, proposed to giye his own notes as a secnriiy, payable 
at the respectiye periods of four, eight, and twelve months. 
The plaintiff agreed to accept of the new secoriiy thus offered, 
reserving, however, to himself the security which he held from 
the three defendants. The new notes were accordingly drawn 
by Bickley and a surety of the name of Bushburg, for tiie orig- 
inal sum and interest calculated up to the times when the re- 
spective jmyments were to be made and delivered to the plaintifft 
he retaining the first bill in his possession. Lord Ellenborough 
held that the original liability of the defendants was not thereby 
altered; and distinguished this case from Evans v. Drummondf 
4 Esp. 89, by saying that '* the separate note of the partner there 
was taken as a substitute and in exchange for the security which 
had been given by the partners; but here the notes, hesaid, were 
taken as a mere collateral security. If there had been an agree- 
ment to postpone the payment of the original debt, without the 
consent of Deakin, I should have assented to the objection; but 
there was no such agreement." He also laid stress on the cir- 
cumstance that the original security was not delivered up, which 
he said distinguished the case from all the cases dted. Mr. 
Justice Bailey, also, without any seeming disapprobation, in 
the last edition of his treatise on bills, see 2d American ed. 
(Boston, 1886), from the 5th London ed., 869, lays it down, from 
the case of Pring v. Clarkson^ that ** taking a fresh bill from the 
acceptor as a collateral security, will not discharge the drawer 
unless there be a bargain for time.'' 

In conformity to this principle, it was decided in Ripley v. 
OreenUaf^ 2 Yem. 129,^ that taking a new note on time, as a se- 
eurity for the payment of the money mentioned in the first note, 
does not discharge the indorser , unless there be an agreement not 
to sue the maker on the first note. Hence it appears that taking 
a new note for the same debt mentioned in the old, without any 
agreement to give time to the drawer, or to deliver up the old 
note to him, or that the new shall be taken in satisfaction of the 
old note, has ever been considered a mere collateral security, 
which does not affect or alter the original liabilities of the parties 
on the old note in any respect whatever. The case also of Ckmld 
▼. Bobsan*m&j be considered as having been decided with a view 
to the recognition of this principle, though it may be question* 
able whether the court did not go too far there in deciding that 

t. 2 Vt. 199. 3. 8 SmI» OTc! 



May, 1840.] Weakly v. Bell. 125 

there was an agreement to give time. The holder of the bill, 
upon receiving part of it at matoriij, took a second bill for the 
reeidae, payable at a future day, agreeing to hold the original 
bill as a security until the second should become payable; and 
the court were of opinion that the agreement to hold the origi- 
nal bill until the second should become payable, amounted ta 
an agreement, on the part of the holder, not to sue on the 
original bill until the second should become payable, and con- 
sequently the drawer was thereby released. We, therefore, con* 
oeiye that the third error can not be sustained. 

The fourth error having been noticed and settled at the con- 
clusion of what was said on the first error, we come now to the 
fifth error. It is an exception to the answer of the court to the 
fourth point submitted by the counsel of the defendant below. 
The letter of notice to the defendant, advising him of the non- 
payment of the note, was proved to have been directed to him 
at Walnut Bottom, near Carlisle, which, it would seem, was thd 
place of his residence; but it was shown that, although there 
was a post-office in Carlisle, it was some nine or ten miles from 
Walnut Bottom, the place where the defendant resided; and 
that there was a post-office called Dickinson within half a mile 
of his residence. The counsel of the defendant below, there- 
fore, requested the court, in the fourth point, to instruct the jury 
that, if the letter was put into the post-office at all at Philadel- 
phia, it must have been mailed, from the direction on it, for the 
post-office at Carlisle, where the defendant would not look for 
it or be likely to receive it, instead of Dickinson post-office, where 
he would have received it with some certainty, as the latter waa 
the post-office at which he generally received letters addressed 
to and intended for him. We are not prepared, however, to say 
that the court erred in refusing to give the instruction here 
asked for; because, at the distance of one hundred and thirty 
miles from Philadelphia, it may be impracticable to ascertain 
by inquiry in the latter place, whether there be a post-office 
nearer to the residence of an individual who resides in the 
county, than that which is located in the town which is the 
seat of justice in the county wherein he resides. And if it 
were to be decided that the letter must be addressed, in all 
cases, so that it shall be sent to the nearest post-office to the 
residence of the defendant, it might subject the plaintiff to the 
expense and inconvenience of sending a special messenger a dis- 
tance of several hundred miles in order to give the defendant 
personal notice, or to ascertain the name of the nearest post- 



126 Weakly v. Bell. pPenn. 

office to him, and have the letter forwarded by mail to it. This 
would seem to be more than ought to be required; because, if 
a notice should be sent to the post-office of a county town^ ad- 
dressed to a person as residing at a particular place u\ the county, 
as well known in the county town as Walnut Bottom is in Oar- 
lisle, the postmaster receiying the letter containing the notice at 
his office in the county town, would doubtless, as it would be 
bis duty, forward it to the post-office nearest to such person's 
residence, that he might receive it as early as possible. The cii^ 
•oumstance of there being two other James Weaklys does not 
43eem to raise any material objection to the direction of the letter, 
for it seems that the defendant resided much nearer to the Wal- 
nut Bottom than either of them, and therefore better suited the 
direction of the letter. 

As to the sixth error, which is the only remaining one, it is 
sufficient to observe that it has been sufficiently answered in the 
•discussion of the second error. 

Judgment reversed, and a venire de novo awarded. 



iKDOBSKiazTT GuABAimBS GuruiiisirBSs ov SiGNATUBB ov Pbiok Pab- 
tub: See 8UU€ Bank ▼. Fearing, 28 Am. Deo. 265, and note. 

Holder or Notb or Bill Presumxd Ownxr: See Morris v. Fbremam^ 1 
Am. Dec. 236; SmUh y. Lawrence^ Id. 666; Oruffer v. Amutrong, 2 Id. 126; 
<J<mroy ▼. Warren, Id. 166; J<me§ v. WeaieoU, 3 Id. 704; BoUon r. Harrod, It 
Id. 306; BsUsbhociver v. Blachtaek, 27 Id. 330. An indoraer in poaMeBion of a 
bill specially indorsed can not recover thereon against the acceptor without 
proving that he has paid the amomit to a sabseqaent indorser: Oargerat v. 
Mc€ariy, 1 Id. 270. A blank indorsement vests the holder with a right of 
4Wtion against all preceding parties: Ahat v. Mon, 18 Id. 313; i?eef ▼. Cat^ 
^icoeheague Bank^ 16 Id. 766. As to the holder's ri^t to fill np or strike oat 
indorsements, see SmUh v. JL a tgrewce, 1 Id. 666; Mcrr^ v. ForemoM, Id. 236; 
BUchh V. Moore, 7 Id. 688, and note; HiU v. Martin, 13 Id. 372; Hwiler v. 
Hempeiead, Id. 468, and note. That the holder may recover of a prior in- 
dorser in blank, without regard to snbseqnent special indorsements, see HwU 
V. BaUeg, 36 Id. 214. 

Proof of Sbkdiko Nonoi mr IAaxl, Bxmnmaxct or: See Milkr v. Haeh^ 
ley, 4 Am. Dec 372; Bank of Elkaheth v. Afen, 11 Id. 636; JTafv. BaXdwiin, 
13 Id. 386; Smiih v. Janes, 32 Id. 627; Crocker v. CraaM, 34 Id. 228. That 
certain and distinct proof of the posting of the notice is required to charge 
the indorser is held, citing Woaklif v. BeU, in Sehoneman v. FegUig, 7 PSa. St. 
438. 

Notb Given tea Prb-bzistino Dbbt, whut Dexmxd Patksht: See Homu 
V. amiih, 32 Am. Dec. 660; EetaU i^DanU, 34 Id. 674, and other cases cited 
in the notes thereto. That the acceptance of a security of equal degree, for 
a pre>existing debt, does not, without a distinct agreement to that eflfect, ex- 
tinguish the debt so as to release any of the puties, is a pdnt to which 
WeaMy v. BeU is cited as authority in Bank </ Pemtf^vatUa v. PoOus, 10 
Watts, 160; Caodg v. Fox, 11 P^ St. 174; OU^yami v. Ckwek, 10 Id. 32a 



May, 1840.] Obeen v. Bobough of Bsadiko. 127 

Koncx BT Mail, Sutfioibnct ov ]>ilioxnge Rbquibxd nr AaoExtAm* 
4KO Inbobseb's ExaiDBircB: See, on the first {mint, RM v. Petyne, 8 Am. 
Deo. 311; Bank o/Columbiav. MeOruder, 14 Id. 271; Bank of United SiateBY, 
Ltmt, Id. 595; CM v. L^mnd, 17 Id. 595; mcM v. Bate, 27 Id. 511; Fi- 
^ere v. Oarium^ 33 Id. 575; Ft^reman v. ITiioif, 35 Id. 212. On the qnestioaol 
•diUgenoe, aee Vigere ▼. (7<M*2on, supra^ and ^onib <2^ CTj^toa v. Bender^ 84 Id. 
1281, and other OMee ooUeeted in the note to the latter decision. 



Obeen v. Borough of BEADiKa 

(9 Waxis, 882.] 

ICmncapAL CoiiPOBATt'oN is not Liablb vob Gbadiito Stbbbt which ia 
not level, nnder a charter anthorizing it to improve the streets^ altfaoa|^ 
the complainant's property is injored thereby, there being no aHqgation 
of malice or wanton disregard of private right. 

Ebbob to the ooinmon pleas. The nataxe of the action ia 
«tated in the opinion. Verdiot and judgment below in &Yor of 
ihe defendants, which the plaintiff now seeks to reverse. 

Hoffman and Eecherly for the plaintiff in enor. 

Strong ^ for the defendant in error. 

By Oonrt, Huston, J. The plaintiff in error was pl«T>tiff 
l)elow, and brought this suit to recover damages from the 
borough of Beading, for filling clay and gravel in one of the 
4rtreets of that borough, opposite the dwelling-house of the 
plaintiff. None of the facts or of the testimony was brought 
up; and we have the naked question, whether in one of our 
boroughs, where by the act of incorporation the power of im- 
proving and repairing the streets is given to the corporate oflH- 
-oers, they can fill up a hollow place or dig down a hill which is 
too steep for convenient use. By an act of assembly passed the 
twenly-ninth of March, 1818, concerning the borough of Bead- 
ing, among other powers given to the corporation in the sixth 
.section, they are empowered '' to make such ordinances as by a 
majority shall be deemed necessary to promote the peace, good 
order, benefit, and advantage of said borough, particularly pro- 
viding for the regulation of the markets; improving, repairing, 
-cleansing, and keeping in order the streets, lanes, alleys, and 
bighvTays of said borough; for making ditches, drains, and 
.sewers, to dispose of and cany off the vmter of said borough.'' 
In the language of the president of the common pleas, '* the 
law confers the power to improve the streets; this involves that 
which was done by the defendants. In the improvement of 



128 Gbsen v. Borough of BEADnro. [Peniw 

streets, it is often necessary to cut down some places and to fill 
up others. No town (except one on a nearly level site) could 
be improved unless the streets could be thus graded." There- 
was not, as appears from the opinion of the court, any allega- 
tion of malice, or even of wanton disregard of private rights; ii 
also apx>ears that it was done in pursuance of a regulation madci 
some time since, and which has been carried into effect in dif- 
ferent parts of the borough. Every man sees, when he purchaseB 
or builds, whether his lot is on high or low ground, whether the 
street is level or steep opposite to his property; and he is bound 
to know, that every highway or street may, by law, be made 
more conVenient for pubHc use, than it was in a state of nature. 
That hills may be cut down, and low or swampy places raised; 
that if one side of the road or street is higher than the other, it 
may be made level from side to side, though in doing this, a 
house on one side, may be left somewhat more above the level 
than could be wished, and on the other somewhat below it. 

Although this power has not, so far as we know, been con- 
troverted in this state, yet it seems to have undergone judida* 
decision in other places. It came before the court of king^a 
bench in 4 T. B. 794,^ and was decided in favor of those whc 
raised the road. It again appeared in the common pleas, StU-^ 
ton V. Cflarke, 6 Taunt. 29, where it was decided on the point,, 
that defendant was acting imder the authority of an act of paiv 
liament, deriving no emolument to himself personally, and act- 
ing to the best of his skill, and within the scope of his author- 
ity, and so not liable for consequential damage; this case, saya 
Chief Justice Oibbs, is totally unlike that of an individual, who, 
for his own benefit, makes an improvement on his own land ac- 
cording to his best skill and diligence, not foreseeing it will 
produce injury to his neighbor; if he thereby though unwillingly 
injure his neighbor, he is liable. The resemblance fails in thia- 
most important point, that his act is not done for a public pur- 
pose, but for private emolument; here the defendant executes 
a duiy imposed on him by the legislature, which he is bound to 
execute. 

The matter did not rest here, it came again before the king'a 
bench: 2 Bam. & Cress. 708.* An act of parliament had author^ 
ized certain persons to make, alter, and improve a road. The 
court observed that digging down and filling up, were the most 
ordinary and most effectual way of improving roads; the case in 
4 T. B. 794, is cited and approved, as also Sutton v. Clarke, and 

1. Catt PlaU Mam^aeturinff Go. v. MertdUk. 2. BcuUon ▼. Cr owtktr. 



May* 1840.] Obben v. Bobouqh of BacADma. 129 

it 18 laid down, that if those appointed by law to make or im- 
prove a road act within their jurisdiction, and with their best 
skill, they are not answeniUe for consequential damages; that 
they may be answerable if they act arbitrarily, carelessly, or op- 
pressiTely: and this disposes of the case in 3 Wils. 461,* where 
for so acting they weie held liable; and also of 4 Ohio, 
600,' where it was said to be done oppressively and malidotisly. 
There is also a case in 7 Pet. 443.' The supreme court of the 
United States decided that they had not jurisdiction, but the 
case was an action against the ciiy of Baltimore, for damages 
consequent on certain improvements of the streets, and in the 
ciiy court damages were recovered, but on a writ of error this 
was reversed in the court of the last resort in Maryland, and they 
refused to grant a venire de novo, because no action lay. 

In the commencement of the opinion of Chief Justice Qibson, 
in 8 Penn. 259,* where the -point was not precisely the same aa 
hare, yet he recognizes the power of improving and malring safe 
and convenient the streets, and it is treated as a power incident 
to every incorporated borough or cify. If I am not mistaken in 
my recollection, the same matter has been decided in the same 
way in Massachusetts. On authority, then, and on principle, 
the decision of the common pleas was right, and I suspect, 
though there may be a temporary inconvenience, the plaintiff 
will find he has not been injured; no one thing which can be 
effected l^ man, tends more to increase the growth and proa- 
periiy of a town or dly than good streets. The advantage to 
the whole town soon raises property in every part of it, and is 
to the advantage of every inhabitant. 

Judgment affirmed. 

PowxB or MuncirAL CoRPoaATioNs to Qbadm cm BaoaADi dfaasnt 
See Keaty t. CUjf qf LovimUe^ 29 Am. Bea 906, and note; BUOe y. May<^ 
«te. qf MobiUj 30 Id. 564. A dty is not liable for mere inoonyemenoee ooca- 
wmed to adjacent lot-owners by the regrading of a street: Keaay y. C^ q/ 
LauimriUet •upra. The doctrine of Cfrten ▼. Borough of Beading on this point, 
was approyed and followed in 0*Catmor y. PUUburgh, 18 Pa. St. 189, and 
8mUh y. Corporation of WashmgUm, 20 How. (U. S.) 149, which were both 
esses of injories occssioned by the regrading of streets. The doctrine was 
also applied in Jfo^or y. Bandolph, 4 Watts Sl S. 616, where it was mled 
that whereyer a corporation has aathority to grade a street it has power to 
do whateyer is necessary for that purpose. It is approved also in Commtf- 
siofiert y. Wood, 10 Pa. St. 96, and in SJiaw y. Crocker, 42 Gal. 438. In the 
latter case it was decided that a street contractor employed in making street 
Improyements under the lawful authority of a corporation is not liable for 

1. Leader t. Jfoxton. 8. Bwrrc% y. BcriKmor*. 7 Pel. MIL 

9. Q9odXoe y. CindniMUi ; B. O., 89 Am. Dee. lU. 4. BmrUr y. CoMMMPtolO. 
Mm, Dbo. Vol. XUVl— • 



180 Fahmers and Mechanics' Bank v. Ege. [Penn. 

injuries thereby occasioned to adjacent property holders, where there is no 
negligence or want of skill. And generally it is laid down in Railroad Co. ▼. 
Yeisrr, 8 Pa. St. 375, citing the principal case, that wheieyer an injury eom- 
plained of is the result of the doing of a lawful act, negligence is tiie gist ot 
the action. In Mifflin v. Railroad Co., 16 Id. 194, the case is referred to as 
recognizing the principle that the owner of properiy has a right to put it to 
profitable use, although it may involve incidental injuiy to a neighbor. 



Fabbiebs and Meghanigs' BAins: t;. Egxl 

[0 Watxb, 438.] 
PUBOBASXB OF LkASXD PbOPEBTT ON EXEOUnON AQAIirBT THK LbS90B» is 

not entitled to rent paid in advance after the rendition of the judgment, 
in aooordanoe with a stipulation in the lease. 
PuBOHASRR ON ExBcnnoN MAT DjSAFFiKM. Lbasb of the premises executed 
after the rendition of the judgment under which he purchased, by giving 
the tenant notice to quit, but if he does so he is not entitled to rent. 

Ebbob to the special court of common pleas of Cumberland 
oouniy, upon an issue directed to try the right to the proceeds 
of certain property of one Perdue, which had been sold on execu- 
tion, the plaintiff claiming the same in payment of the rent of 
certain premises of which Perdue was tenant. Verdict and 
judgment for the defendant under direction of the courL The 
facts sufficiently appear from the opinion. 

Orimahaw and Alexander, for the plaintiff in error. 

Waits, for the defendant in error. 

By Court, Booebs, J. The money now in court for distribu- 
tion arises from the sale of the personal estate of Mentor 
Perdue, who was the tenant of George Ege, under a lease from 
the Mount Holly iron works, dated the tweniy-fifth of Febru- 
ary, 1837, for five years, at the annual rate of six thousand dol- 
lars, payable in advance on each successive fjrst of April. The 
Farmers and Mechanics' bank purchased the premises at sher- 
iff's sale, and on the twenty-fourth of August, 1839, the sheriff 
of Cumberland county acknowledged the deed. The property 
was sold on a judgment of the bank against Ege, entered in 
April, 1820. The bank claims the rent which accrued from the 
first of April, 1839, and relies on the one hundred and nine- 
teenth section of the act of the sixteenth of June, 1836: ''If 
any lands or tenements shall be sold upon execution, as afore- 
said, which, at the time of such sale, or afterwards, shall be 
held or possessed by a tenant, or lessee, or person holding or 
claiming to hold the same under the defendant on such ezecu- 



May, 1840.] Fabmebs and Mbchanics' Baitk v. Eqk. 131 

tioiiy the pfozbhaser of siioh lands or tenements shall, upon ze- 
oemng a deed for the same, as aforesaid, be deemed the land- 
lord of sach tenant, lessee, or other i>6rson, and shall have the 
like remedies to recover any rent or sums aooraing subsequently 
to the acknowledgment of a deed to him, as aforesaid, whether 
such aooraing rent may have been paid in advance or not, if 
paid after the rendition of the judgment on which sale was 
made, as such defendant might have had, if no such sale had been 
made." The purchaser is placed in the situation of the original 
landlord, with the like remedies, with a provision (which could 
not form part of the original bill) that he should be entitled to 
the accruing rent, even if paid in advance, provided it was paid 
after the rendition of the judgment on which the sale was made. 
To what class of cases does this clause apply? and what evils 
was it designed to remedy? and what is intended by the expres- 
sion, "the payment of the rent in advance''? Can it apply 
when it is part and parcel of the contract that the rent should 
be so paid ? Such a construction would be impolitic and unjust. 
For, suppose Perdue, in compliance with his contract, had vol- 
untarily paid, or had been compelled by distress to pay the 
whole rent to Ege on the first of April — could it enter into the 
minds of the legislature, that he should be bound to pay it 
again, after the sale, on the judgment? How could he tell 
whether the bank would proceed on their judgment ? You place 
him in this perilous predicament. If he does not pay, he is 
liable to a distress, and if he discharges his obligation with 
punctuality and good faith, according to his contract, he does 
it at the risk of being compelled to pay it again at the option of 
the creditor. But what was the mischief this clause was de- 
signed to reach? It strikes me it was intended to avoid the 
fraud and collusion which may arise either from payment, or 
the allegation of the payment in advance, where the rent was 
not, by the terms of the lease, due. The words of the court 
are, " whether the accruing rent may have been paid in advance.'' 
In advance of what? Why clearly in advance of the time when 
the rent became due. The legislature supposed, that where a 
judgment was rendered, and the tenant chose to anticipate his 
payments, it must be done at his own risk, and in this, as it is 
done voluntarily, there is nothing of which he can complain. But 
where the payment is made in compliance with the contract, and 
there is no danger of either fraud or collusion, it does not call 
for so extraordinary a remedy. They surely could not intend 
to prohibit such agreements, nor could they have designed to 



132 Cumberland Valley B. R Co. v. Baab. [FenoL 

prevent the tenant from fulfilling his contract Tnth said bank. 
It moreover seems to me, that this, by any fair constmetion^. 
can not be viewed as a rent accruing after the acknowledgment 
of the sheriff's deed. The rent, according to the terms of the 
deed, accrued, or was due (which I take it is the same thing), be- 
fore the acknowledgment. We feel a just reluctance to wrest 
words from their ordinary import to give them a construction 
which would lead to a violation of good faith, and in many case^ 
would operate so unjustly. 

The lease between Ege and Perdue was dated the twenfy-jBfUib 
of February, 1887, but the judgment on which the land was sold 
was entered in April, 1820. The purchaser, therefore, had tha 
right to affirm or disafBrm the lease. It seems clear, that he> 
elected the latter, and it so, what right has he to rent which be 
can only claim in quality of landlord? Before the expiration of 
the lease, he gavd notice, as he had a right to do, to Perdue, to 
quit, and moreover sued out a writ of estrepement to prevent 
waste. The latter was an equivocal act, but connected with the- 
former, it removes all doubt as to the intention of the bank. 

Judgment affirmed. 



BioBfs or BziocTiov Pubobasib of PBsicnn under laaie to a tiiM 
penon as to reoovery of rent from the tenant: See the note to Jaekmm y. 
BoKMOify 15 Am. Deo. 251. Where the prendees are leased to another bytiie 
debtor after ezecntion, the parchaeer may reoover poBeeaeion notwithstand- 
ing sooh lease, and the tenant is not entiUed to notioe to quit: Loeht y. Cbfo-^ 
man^ Id. 118. In HemphiU r, TevU, 4 Watts k S. 541, Farmen tie. Bamk y. 
Effe is cited to the point that a porohaser on ezecntion giving notioe to qnit to 
a tenant under a lease subsequent to the lien of the judgment dinflirms the- 
lease, and the tenant's remaining in possession will not renew it. In FuUer- 
ion y. Seha^fftr, 12 Pa. St. 221, the case is also approved on the point that 
one purchasing leased premises on ezecntion between rent days Is not entitleil 
to the rent for the current term where it has been paid in advance under tb* 



CuMBEBiiAKD Yalley B. R Go. t;. Baab. 

[9 Watts, 468.] 
SVBSCBIFTION OF MONET TO Iin>UGS RAILWAY COMPANT TO LOOATB BBIDOB 

at a particular point oonstitates a valid contract. 

Ebbob to Dauphin county common pleas, in an action faroughi 
to lecoyer a certain sum subscribed by the defendant upon a 
subscription paper, whereby the subscribers promised to pay to 
the plaintiffs the sums severally subscribed for the purchase of 
one or more depots near Mulberry street, Harrisburg, if the 



Hay, 1840.] Cumbebland Yallet R R Co. v. Baar 133 

plamtiJBEs wonld locate their railroad bridge across the Susque- 
hazma river, ''opposite to Mulberry street, Harrisburg/' the 
plaintifiBs hairing built their bridge at the point indicated, and 
pnrchased a lot for a depot. The charter of the plaintiffs au- 
thorized them to construct their road from Carlisle, ** by the 
nearest and best route, to a point on the Susquehanna river, at 
•or near the borough of Harrisburg." By a supplementary act 
the plaintiffs were authorized to construct a bridge over the Sus- 
quehanna, at the eastern end of their road, to connect Tnth the 
Pennsylvania canal, the connection to be formed ** in accordance 
with the directions of the canal commissioners," etc. They were 
also authorized, if necessary to increase the capital stock, to in- 
•etease the number of shares. Verdict for the defendant under 
the direction of the court, on the ground that the agreement^ 
was without consideration, and contrary to public policy. Judg4 
ment on the verdict, which the plaintiffs now sought to reverse. 

McCormick, for the plaintiff in error. 

J, A. Fisher, for the defendant in error. 

By Court, Gibson, C. J. The decision in The ffibemia TumpUoe 
V. Eenderzonf [11 Am. Dec. 593], turned on the construction of 
a statute. The contract of subscription was regulated by the act 
of incorporation, in the interpretation of which it was held, that 
the public interest was so much concerned in the scheme that 
prompt payment of the installment, which was required to be 
•counted down at the time of subscription, coxQd not be dis- 
pensed with by the commissioners, or subsequently by the com- 
pany: the contract before us is regulated, or expressly prohib- 
ited, by no statute whatever. It certainly was held, that the 
public had an interest in the question of location which it was 
the purpose of the legislature to protect by excluding fictitious 
subscriptions; and to preclude an improper influence from being 
gained by means of them in the election of the first board of 
managers, was assigned as the motive which induced the legis- 
lature to insist on immediate payment of a part of the subscrip- 
tion as a stake in the company's concerns. The object evidently 
was to prevent a choice favorable to the interests of influential 
proprietors on the proposed route, but prejudicial to the inter- 
ests, not only of the company, but of the state, which also was 
a stockholder, and we were constrained by these considerations 
to enforce the condition of payment with extreme rigor. But 
it was not intimated that if present payment of a part of the 

1. 8 Serg. h, R. 219. 



134 CuMBEBLAND Yallet R R Co. V. Baab. [Penn. 

subscription had not been expressly exacted hj the statute, the 
public interest would nevertheless have made it indispensable 
to the legality of the contract. It is here that a corporation 
being ens legis, has no inherent power to act, or indeed any 
power at all beyond what is necessary to accomplish the end of 
its being: but it is also true that within the scope of its legiti- 
inate functions it may act as a natural person might. In defin- 
ing its powers, it would be impracticable to enumerate them 
specifically, or to do more than circumscribe the field of its 
action, leaving it to exercise all those that are incidental and 
necessary to the purpose of its creation. Now to fix the ter- 
minus of a road or the site of a bridge, when that has not been 
done by the act of incorporation, is certainly an incidental power; 
and did we recognize any other limitations of it than those that 
are expressed in the charter, we should fall into a labyrinth of 
contradictions and doubts. The conditions of the contract of 
subscription were expressly prescribed in The Hibemia Tarn- 
pike V. Henderson^ [11 Am. Dec. 593], and Irrxin v. 7^ Susque- 
Jumna and PhUipsburg Twmpikt^ [23 Am. Dec. 58]; in the latter 
of which it was said that, though an expectation of benefit 
to the holders of property contiguous to the route had been a 
powerful spring in putting these artificial bodies in motion, yet 
that it had never been suffered to become a condition of the 
contract of subscription. In the case at bar, the subscription 
is not to the stock: and there is consequently no express regu- 
lation or prohibition of it in the charter; without which the 
supposed resemblance of it to the oases quoted, is barely imag- 
inary. 

In Irviny. The Susquehanna etc, jfUnqnibe the rights of the cor- 
porators were declared to be inviolable: but the public interest 
was said to be paramount to everything else. If, then, the right 
to determine a question of location is a corporate one, it is para- 
moimt even to the public convenience; and there is abundant 
reason that it shoxQd be so. A company is not bound to make 
the best road, and upon the best ground that can be had by an 
unlimited outiay: it is enough for the public that it does the 
best it can with its means. The sum subscribed is usually in- 
adequate to the end, and it woxQd surely not promote the public 
convenience to preclude recourse to any other means which 
might be put by accident within its reach. As inducements to 
the undertaking, contributions on the ground of individual, as 
well as of corporate interests, may be legitimately calculated 

1. 8 Sefg. h B. 21». 3. 2 Penn. 466. 



May, 1840.] Cumbebland Vallet R R Co. t;. Baab. 135 

Bpon. Without the purchased assistance of a part of the in- 
inhabitants of Harrisbnrg, this company might possibly have 
been unable to construct any bridge at all; and how public con« 
Tenience would have been promoted by interdicting the use of 
it, is a mystery which it woxQd be hard to penetrate. To say 
that the competitors for the location might equally have en- 
couraged the work by subscription to the capital stock, is to say 
nothing. For its own sake they were not disposed to encourage 
it at all; and we should ask too much did we require the com- 
pany to forego the power given to it by its position of procuring 
assistance in compensation of equivalent advantages bestowed. 
Noris it to be inferred from the clause which allows of an increase 
of the capital by an increase of the shares, that it was intended to 
prohibit an increase of it in any other way. That is an enabling, 
not a disabling clause, its object being to enlarge the sphere of 
the company's action for general purposes, not to restrain it in 
a particular thing. And a subscription of additional shares to 
the stock would have directly given the subscribers that very in- 
fluence in the direction of the company's afiairs, which has been 
so earnestly deprecated. The election of managers by means of 
a fictitious subscription, is certainly an evil which the legis- 
lature, in the cases quoted, wisely interfered to prevent; but to 
be allowed to do the beot for the company's welfare by the use 
of every means not expressly interdicted, is one of the condi- 
tions on which the stockholders subscribed their money, and it 
is one by which the public will not be foimd to suffer; for man- 
agers will doubtiess have sufficient sagacity to see that the loca- 
tion which best serves the public is that which will give the 
company the greatest run of customers. It is most politic, 
therefore, to let such a company manage its affairs according to 
the dictates of its interest. Its managers will doubtiess select 
the best route and occupy the best positions in order to enjoy 
the present advantages of them, as weU as to preclude future 
competition; and for that reason, the interest which the state 
has in the work may safely be committed to their direction. 
We can not say, therefore, that the contract on which this 
action has been brought is illegal on grounds of public policy. 
Judgment reversed, and a venire de novo awarded. 



SuBSCBimoN TO GoRPOBATZON voB LOCATION OF PuBUO BoAD, efieot of : See 
Irvin V. Turnpike Co,, 23 Am. Deo. 63. A snbBCiiptioii for the erection of a 
•Ute-hoase la not void for want of oonsideration or as against pablio polity. 
9kUe ISrtatwrer v. OroB§, 81 Id. 920. 



186 MoLakahan v. Rebsidb. [PeniL 



MoLanahak v. Reesidb. 

(9WA9n,60e.] 

BaooBD ov Abbolotb "Dskd 18 NOT NonoK TO Cbbdxtobs of the gnntM 
mbieqacDtly obtBining Jadgment, of an agreement not r e fen ced to in tlie 
deed, but ezeoated between the grantor and grentee on theaameday and 
reoorded at the lame time in the same book, that certain notea given 
aa wtoaiity tot the porchase money, are to be oonaidered a lien npon tlie 
premisee in the nature of a mortgage. 

Aaaxnaxn in Natubb of Mortoaob Nud not bb Rsoobded nr Mobt* 
OAOK Book, it seems, nnder the Pennqrlvania recording act, bat may be 
reoorded in the book of deeds, the keepLog of separate books being mecely 
for the recorder's convenience. 

Moktqaqu PuBOHAfliNO THB Pkemisbs ON BzBODTiov against the mort* 
gagor, must look to the land and not to the pux)ha8e money for payment 
oi hii mortgage, nnder the Pennsylvania statatea; so, where the par- 
chaser's rights depend upon an agreement oonstitating a " lien in the na- 
ture of a mortgage." 

Ebbob to the Bedford county oommon pleas in an amicable 
action to try the light of the plaintifEs and others, as judg- 
ment creditors of one Lewis, to have payment of their judg- 
ments out of the proceeds of certain land sold on execution in 
favor of the plaintiffs in preference to a claim of the defendant 
under a prior agreement with Lewis in the nature of a mortgage. 
From a statement of the facts in the nature of a special verdict, 
it appeared that an agreement under seal had been entered into 
between the present defendant and the said Lewis, whereby the 
defendant agreed, for a consideration therein expressed, to sell 
and convey, and did thereby sell and convey, certain land to 
Lewis, covenanting to execute a warranty deed therefor at or 
before the sealing of the agreement. The agreement acknowl- 
edged payment of the consideration by the receipt of certain 
notes held by Lewis against other persons, and provided that 
the said notes *' for the payment or security of money" should 
'' be and remain chargeable" upon the land and '' to be consid- 
ered a lien and in the nature of a mortgage" thereon until the 
money due on the notes was fully paid. On the same day an 
absolute warranty deed in fee, not referring to the agreement, 
was executed by the defendant, conveying the premises to Lewis, 
and both instruments were on the same day recorded in a book 
(»lled the " deed book," and not in a " mortgage book" admitted 
to be kept in the recorder's office for the recording of mort- 
gages. The plaintifTs judgment against Lewis, on which the 
land was sold, was Subsequently recovered and docketed in the 
eommon pleas, and the defendant afterwards recovered and had 



Hay, ] 840.] McLanahan v. Beeside. 137 

• 

-docketed in the same court a judgment for a balance remaining 
-cmpaid on the notes above mentioned. Judgment for the plaint- 
jflb, which the defendant now sought to reverse. 

OUne^ for the plaintiff in error. 

Blodgel, tar the defendant in error. 

By Court, Qaaos, 0. J. This case is not exactly like jFKadby 
^. BamUUm, 17 Serg. & B. 70 [17 Am. Dec. 688], in which a re- 
•corded conveyance and an unrecorded defeasancCi constituting 
«n unrecorded mortgage betwixt the parties, weie postponed to 
« subsequent judgment. But though both have been recorded 
in this instance, the principle applicable to them is the same. 
Tbej were recorded in the same volume, on the same day, and 
though it does not expressly so appear, most probably in juxta- 
position. But a creditor in search of a clew to the title, would 
iieoeesarily stop at a conveyance absolute on the face of it, and 
cef erring to nothing beyond it. He would have no reason to 
inspect that further search would lead to a defeasance of which, 
not lying in the channel of the title, he would not, though actu- 
ally recorded, be bound to take notice; as was held in Woods v. 
Fbrmere, 7 Watts, 886 [32 Am. Dec. 772]; for a purchaser of a 
regular chain of title is not bound to notice a thing which is not 
ostensibly attached to any part of it, as in Ripple v. J3tj)pfe, 1 
Bawle, 886,* wheie a charge by the will of a devisor who had 
purchased by articles for his son, to whom the land was con- 
veyed by the original owner after the testator's death, was held 
io require actual notice of it, in order to affect a purchase under 
« judgment against the son. The difference betwixt that case 
«nd the case at bar, is that here the incumbrance is of record, 
4uid there it was not; but according to Woods v. Farmere^ if the 
record of the incumbrance lay not in the creditor's way, he was 
not bound to notice it. It is indeed of no account that the con- 
veyance and the articles were not recorded in the book set apart 
for mortgages. The keeping of such a book is an arrangement 
to promote the convenience of the officer, by contracting the 
«nrfEU)e over which he is to search for a particular thing; and he 
is bound to furnish precise information, get it as he may, of 
•every registry in his office, whether made in the right place or 
not. Nor is it material, on the other hand, that they were re- 
•corded in the same volume, or side by side. The creditor may 
have actually seen no more than the absolute conveyance, which, 
referring to no other deed in pari materia as a part of it, would 

1. 1 BawIb, 886. 



138 McLanahan v. Reeside. [PenoL 

direct him to nothing beyond it. Nor is this merelj theoretical. 
For what woidd a creditor in such a case direct a searchf Un- 
doubtedly for that which is usually the consummation of all bar- 
gains and stipulations; and when the registry of it is put before 
him, without leading him to a suspicion of aught beside the 
existence of an absolute conveyance, might he not justifiably 
rest satisfied of the clearness of the title? By allowing his eyes* 
to range over the adjoining pages, in this instance, they might 
possibly have fallen on the registry of the articles; but ttie legal 
effect of their registration would be the same, were the place of 
it in another part of the book, for a question of constructive 
notice is not to be determined by the probability of actual notice. 
It is of the last importance to creditors that the registry of a^ 
mortgage, by which they are to be affected, whatever the form 
of the transaction between the parties, should exhibit as a whole, 
connected and perfect in its parts. 

But even were the registry of these two deeds taken as such, 
how could it benefit the case of the defendant below, who, as a^ 
purchaser subject to his own mortgage, as he must be deemed 
by force of the statute of 1830, must look, not to the purchase^ 
money, but the premises in his own hands? The agreement 
subjoined to the articles, if it did anything, tamed the convey- 
ance into a mortgage to secure the payment of the notes given 
for the purchase money. What is " a lien in the nature of a. 
mortgage," but a mortgage itself? It is hard to conceive of a^ 
lien, simply, without a means to enforce it; yet I will not say 
there may not be such a thing. But if the agreement in thia 
case be not deemed a defeasance of the conveyance, and botb 
together as constituting one instrument, then the registration i» 
incontestably several, and the creditor woxQd be bound to look 
no further than the conveyance: so that in either aspect, the de- 
fendant below had no right to any part of the purchase money. 

Judgment reversed, and a venire de novo awarded. 

iRBEOULABTnES IN RfiOOBDiNO Instruioents: See Sawffer y. Adams, 80- 
Am. Dec. 459, and the note thereto. In Miller v. Muesdnum, 6 Whart. 358^ 
the principal caee ii cited for the general doctrine that third persoDB are bomid 
by an instniment requiring to be recorded only as it ui recorded, whaterer noay 
be the transaction between the parties, and whatever agreements they may 
have entered into. 

Deed Absolitte with Defeasance, how and in what Book Beoosdkd. — 
Failure to record a defeasance accompanying an absolute deed postpones it#- 
en as a mortgage to that of a subsequent judgment: FriedUiy ▼. HcanUUm, 
17 Am. Dec. 638. An absolute deed with a defeasance should be recorded iik 
the book of mortgages: OrvmBUme v. Carter, 24 Id. 290. See, also, to th*- 
tame purpose, James v. Morty^ 14 Id. 475, and note. 



May, 1840.] Brown v. McEinnet. 13^ 

Bbown V. MoEj[nnby. 

[9 Watts. 66S.] 

For/nanov lus Twxntt-onx Yxabs bt a Fknce.as thb Ldtb, or by a houw 
or stable, by a party elaiming the land as his own, condnavely establiahee 
his right, whether he knows of an adverse claim by the adjoimng owner 
or not. 

Ebbob to Dauphin coiiniy common pleas. The ease is stated 
in the opinion. 

Bavmy for the plaintiffs in error. 

Johnston and Ayres^ tor the defendant in error. 

By Court, Huston, J. The plaintiffs in error were plaintifb 
below, and brought this ejectment as is stated in the writ for the 
fortieth part of an acre, more or less, being part of lot No. 29& 
in Harrisbu]^, bounded, etc. The plaintiffs deduced title to lot 
No. 295. On the west it was bounded by lot No. 294. On this 
lot and on the side next to 295 stood a house built more than 
thiriy years ago. There was no objection to the plaintiff begin* 
ning at this house and measuring his distance along the street. 
The front of each lot on the street was fifiy-two feet six inches; 
this they had, but insisted on more, on the following grounds: 
They alleged and proved by James Pople that by going to the 
east side of lot 294 and allowing it fifiy-two and one half feet, 
and then measuring Brown's lot fifiy-two and one half feet, he 
fell about five inches short of where the fence between plaintiffs' 
md MoEinney's lots stands now; he had reason for measuring 
lot 294. The owner of that lot has his east line fixed by his 
house adjoining plaintiffs' lot, which house has stood more than 
thiriy years: at the side of that house the measurement ought 
to have begun. But this is not all; he then went two lots east, 
and he measured those lots, and again fell five inches short of 
the fence. This is his testimony, but I believe he was not un- 
derstood — ^for he says afterwards that this throws the fence five 
inches on the plaintiffs* lot. The sum of the matter is, the 
plaintiffs suppose there are four or five inches more in the front 
of lots 295, 296, and 297, than they call for, and he wanted the 
whole or at least one third of this overplus measure. This is 
no new thing to me; although it is not common in town lots, it 
is very common in tracts of land, and we every year in former 
times met with a man who, if he thought his neighbor had some 
overplus land, wished to take some of it into his own care; and 
we have cases where very accurate measures have occasioned 



140 Brown v. McKinnbt. [Penn. 

yerj anprofitaUe law suits, of which the Ghemt AUey c€ue, in 7 
Watts, is an instance. But James Pople meamxed with a ten- 
4!eet pole, and measured four lots instead of one, and there is no 
•evidence that even then he began at the proper points. 

Colonel Roberts, who I understand is a regulator in the 
borough, went out at the adjournment of the court, and he 
found that measuring from the house on 294 to the fence 
between plaintiffs and McEjuney's, plaintiffs have their full 
^Ustance; but to understand the points proposed to the 
-court and the errors assigned, we must go back. Plaintiff 
«howed that Jonathan Keanlj owned the lot more than twenty 
jears ago, and rented to several persons in succession until the 
plaintiffs bought it in 1838; the plaintiffJFi also proved by a wit- 
ness that many years ago there was a ball-alley on McEinney's 
lot, and to enlarge it an agreement was made for permission to 
move the fence in on the lot in question nearly four feet; this 
was only the brei^th of the ball-alley; that the person who oc- 
•cupied McEinne/s lot agreed to pay and did pay two dollars a 
jear rent for this ground: it was also proved by plaintiffs' wit- 
nesses, that there had been a fence between the plaintiffs' lot 
4Uid McEinney's which had stood in the same place more than 
tweniy-one years; but this fence was not straight; that about 
half way back on McEinney's lot, stood an old frame stable. It 
was also proved by plaintiffs' witnesses that soon after this suit 
was commenced the parties took the regulators of the borough 
to the lots, who with a standard pole measured off to plaintiffs 
4fty-two feet six inches, and marked the point. That McEinney , 
who did not live on this lot, but a long distance from it, had 
his fence moved to this line; that he moved his stable some dis- 
tance in on his old lot, and moved the crooked fence which had 
^ven him possession of a small part of plaintiffs' lot since be- 
fore E^anly bought it — ^in short, that he gave up all to the line 
£xed by the regulators. After this, in April, 1839, he by leave 
of the court filed a disclaimer as to every part of lot No. 295. 
But plaintiffs would not stop their proceedings. It appeared 
that Zearing joined McEinney's two lots on the east, and when 
McEinney was improving on that side, he and Zearing had 
agreed on a point as the line between them, without inqi*iring 
whether this was the true point, or whether Zearing ha^, not 
given up a few inches to McEinney. The plaintiffs, \a 1 
stated before, went and measured McEinney's two lots, and 
found five inches of overplus, and this suit was continued It 
lias always been the wish of McEinney to stop the contest \nd 



July, 1840.] HAEVEr u TnoMAa 14> 

for this pnxpose he had moyed his stable and his fence, and give^ 
plainidfb what he cotdd have held by the statute of limitations. 
For it can not be disputed that an occupation up to a fence on 
each side bj a party or two parties for more than tweniy-one 
years, each party ^Iftiming the land on his side as his own, gives 
to each an incontestable right up to the fence, and equally 
whether the fence is precisely on the right line or not. It is* 
time that it should be settled beyond dispute that where a per* 
son is in possession by a fence as his line, or by a house or stable,, 
for more than twenty-one years, his possession establishes his- 
right. A possession claiming as his own is in law and reason 
adTerse to all the world — and as much so if he has nerer heard 
of an adverse claim as if he had always known of it. 
Judgment a£Szmed. 

Advxbss PosBiaBios: Soe tlM note to Wrighi v. Chtkr^ anief 108, and the- 
Mta thereto^ nfening to porevioai oaaes in this aeries. As to the settlement 
of a boondaiy between lands of adjaoent owners by long aoqniesoenoe, see- 
/odboA y. JlfcCmuM, 82 Am. Dec. 439; and OroicpeS v. Bebee. 33 Id. 172,. 
and caaea dtod in the notee thoreto, referring to prior eaaea in this series. 



Habvet V. Thomas. 

[10 w^m, 63.] 

Conn Nkbd hot Gbaboe upon Point not Arisino upon the evidenoe. 

Vbrdict ufon wmoH no Judgment is Entbbxd, assessing the damages' 
which a party will sostain by reason of the laying oat of a lateral nil* 
road across his land, nnder the Pennsylvania statute of 1832, will not. 
jostify an entry and the making of the road, but the record of the pro- 
ceedings is admissible in evidence to mitigate the damages. 

Pbribtlyania Act Authorizing Appbopriation of Anotheb's Land fob. 
Lateral Bailboad to oonnect a private coal mine with a public river or 
other highway is oonstitational, and the act does not require the peti* 
tioner to own the land at the point of junotion. 

RiPABiAN Owner's Right of Exclusive Possession to the Shobb of a- 
navigable stream does not extend beyond low-water mark. 

Pabt of Record, where Remainder is Shown to have been Lost, i» 
admissible in evidence, with parol proof of the contents of the part lost. 

Ebbob to Luzerne county common pleas, in an action of tree- 
pass qtuire clavswm fregii, brought to August term, 1839, b^ 
Harvey against Thomas. The trespass complained of consisted 
in entering upon the plaintiff's land, and constructing a latera} 
railroad, under the act of May, 1832, to connect the defendant's 
coal mine "with public navigation. The defendant, it appeared^ 
by petition under the act procured the appointment of viewers^ 



142 Habvet v. Thomas. [Pena 

who reported the damages wUch the plaintiff would sustain from 
the maTring of the road. Upon appeal by the plaintiff, the dam- 
ages were assessed by a jury in 1835. No judgment was en- 
tered on the verdict. The petitioner, however, entered and con- 
structed the road. Subsequently, in November, 1839, the court, 
on the petitioner's application, directed judgment to be entered 
as of August 3, 1839, when the jury fee was paid, and the peti- 
tioner brought the amount found by the verdict and paid it into 
court, having previously tendered it to the plaintiff. It ap- 
peared that the record of the proceedings above mentioned was 
lost, except the docket entry, which was admitted in evidence 
with parol proof of the contents of the part lost, against the 
plaintiff's objection. The plaintiff asked instructions in sub- 
stance as follows: 1. That there being no judgment on the ver- 
dict, the proceedings above set out did not justify the acts com- 
plained of; 2. That the road must have been made on the pre- 
cise line specified in the petition; .3. That the defendant could 
not occupy the plaintiffs land at the terminus of his road; 
4. That the statute was unconstitiitional, and if not, that it did 
not apply where the petitioner owned no landing-place at the 
terminus. The instructions of the comt on these points suffi- 
•cienUy appear from the opinion. Verdict and judgment for the 
plaintiff for twenty-five dollars and costs, and the plaintiff 
brought error. 

Campbell and BuOer^ for the plaintiff in error. 

Wright and Woodward^ for the defendant in error. 

By Court, Gibson, C. J. It is proper, in limine^ to say, that 
as no part of the evidence has come up with the record except 
what is contained in the bills of exceptions, we know not 
whether tender was made before or after judgment, or whether 
the point propoimded in the first prayer arose in the cause at 
all. If it did not resxQt from the evidence, the judge might 
omit to charge on it; and as error is not to be intended, we 
woxQd have been bound, had he not noticed it, to suppose that 
it had not a legitimate place in the cause. But he did notice it, 
and gave the direction prayed for, with a very proper qualifica- 
tion, that though the proceeding in the common pleas did not 
furnish a justification of the trespass, it at least took away all 
pretext for vindicatory damages. And the same may be said of 
the second prayer, which was answered affirmatively, by direct- 
ing that if judgment had been entered on the verdict, if tender 
had been made in pursuance of it, and if the road had been 



July, 1840.] Habvby v. Thomas. 143 

•oonstmcted according to the requisitions of the act, there would 
have been a full and perfect defense; for from this the jury 
must have inferred that there could be no defense without the 
concurrence of all of them. Besides, any omission on this head 
<x>uld do the plaintiff no harm, for the jury actually found for 
him; and eveiything beyond that had relation to the quantum 
of the damages. On that ground alone, an error, if there were 
one, would be imniaterial. 

13ie third prayer was properly rejected. Nothing in the stat- 
ute or in reason, requires a petitioner to be the owner of the 
land at the entrance of the route into the public thoroughfare. 
It was not contemplated that he should have a depot at the 
junction; and there is neither reason nor enactment for the 
plaintiffs principle. The road might, therefore, be lawfully 
laid on the ground which it occupies; and as to intrusion, there 
is no evidence legitimately before us, nor is there anything eyen 
in that which has been put upon our paper books irregularly , to 
show that the defendant had occupied any part of the plaintiffs 
ground on the pool, or preyented him from using it as he 
pleased. The railroad was carried into the stream on a plat- 
form; whence the coals were discharged by a shute into boats 
lying parallel with the shore. What the interyening space was, 
it is not material to inquire: the plaintiffs right of ezdusiye 
possession extended not one inch beyond low-water mark, and 
if there was a trespass at all, it was committed on the public. 
An unreasonable occupancy of the pool might haye subjected 
the defendant to a prosecution for a nuisance; but as to the 
plaintiffs right in it, the case stands on the principle of Shrunk 
y. The SchuyMU Navigation Company, 14 Serg. & B. 71. The 
defendant might occupy any part of the stream without being 
answerable to the plaintiff or any one else, for preyenting boats 
from coming to lie at the landing. 

The most niat>ftrial point in the cause is that which inyolyes 
the constitutionaUiy of the statute on which the defendant's 
right is founded; but it is one about which little need be said. 
If there is an appearance of solidity in any part of the argu- 
ment, it is that the legislature haye not power to authorize an 
application of another's property to a priyate purpose eyen on 
compensation made, because there is no express constitutional 
affirmance of such a power. But who can point out an express 
constitutional disaffirmance of it? The clause by which it is 
declared that no man's properly shall be taken, or applied to 
public use, without the consent of his representatiyes, and with- 



144 Habvet t;. Thomas. [Pi 



out just oompensation made, is a disabling, not an enabling one; 
and the right would have existed in fall force without it. 
Whether the power was only partially restrained for a reason 
similar to that which induoed an ancient law-giver to annex no- 
penalty to pamcide, or whether it was thought there would be 
no temptation to the act of taking the property of an individual 
for another's use, it seems clear that there is nothing in the con- 
stitution to prevent it; and the practice of the legislature haa 
been in accordance with the principle, of which the application 
of another's ground to the purpose of a private way, is a preg- 
nant proof. It is true that the title of the owner is not divested 
hj it; but in the language of the constitution, the ground ia 
nevertheless *' applied" to private use. It is also true, that it 
has usually, perhaps always, been so applied on compensation 
made; but this has been done from a sense of justice, and not 
of constitutional obligation. But as in the case of the statute- 
for compronusing the dispute with the Oonneoticut claimants, 
under which the property of one man was taken from him and 
given to another, for the sake of peace, the end to be attained^ 
by this lateral railroad law is the public jirosperity. Pennsyl^ 
vania has an incalculable interest in her coal mines; nor will it 
be alleged that the incorporation of railroad companies, for the- 
development of her resources, in this or any other particular, 
would not be a measure of public utility; and it surely will not 
be imagined that a privil^;e constitutionally given to an artificial 
person, would be less constitutionally given to a natural one. 

The competency of the docket entry, the other part of the rec- 
ord being lost, is incontestable. A part of a record may always be 
introduced on proof that nothing which can be had remains be- 
hind; and the proof of contents, to supply the place of the part 
lost, was as clearly competent. 

Judgment affirmed. 

GouBT NOT EsQumBD TO Chabos ON PonsT WBXBB NO Evn>sNci: See HeW' 
tnan v. Foster, 34 Am. Deo. 98. The court is never bound to answer abstraet 
questions: Irish v. SmUh, 11 Id. 648; Porter v. Bobkuon^ 13 Id. 1£3; Hathorw 
v. StiMony 26 Id. 228. It is error to leave a question to the juxy upon which 
there is not a color of proof: Higgin v. PcUaptco Ins. Co., 16 Id. 302; WhUf 
km v. WUion, 24 Id. 326; O'FaUon v. Boimnenu, 26 Id. 678; Stoker ▼. IaU- 
•haw, 27 Id. 297; PrescoU r. Union Ins, Co., 30 Id. 207. 

BiONXNT Domain, what Uses Justift Exsrcisb or.— ThU subject is dis- 
cussed in the note to Beehnan v. Saratoga etc. B. B., 22 Am. Dec 686. See 
also yVhiteman^s Executrix v. WUnunyton etc B. B. Co., 33 Id. 411, and Leap- 
ington etc. B. B. Co, r^ AppUgate, Id. 497, and other cases in this series cited 
in the notes thereto. In the note to Beehman ▼. Saratoga etc. B. B. Co., be- 
fore referred to, at page 696| the cases relating to the validity of the Penn* 



Julji 1840.] Cabskadden v. Poobman. 145 

sylTuiift "lateral railroad law,** and to other flimilar statatee, are reviewed. 
The doctrine laid down by Gibson, C. J. in Harvey v. Thomas^ that 
wiihont an ezpreas oonBtitational prohibition the iQgislatnre may anthorize 
the taking of private property for private nse npon making compensation, la 
referred to with approTal in diBcosaing anaJogona questioua in Billings v. HeUlp 
7 CaL 22; SJurman v. Buick^ 32 Id. 255; People v. OaUagher, 4 Mich. 260; 
SharpUea v. Ma;yor of Philadelphia, 21 Pa. St. 167. Donbted in 25 Iowa, 549. 

BiPABiAK Ownxk's Biobt TO Shors ov Navioablb Stream: See Batt v. 
Slack, 30 Am. Dec 278, and cases collected in the note thereto. See also 
ffoffon T. CampbeU, 33 Id. 267; ValenUne v. Piper, Id. 715; Bird t. Smith, 84 
Id. 483, and notes to those decisions. 

Fa&t of BaooBB, AjDMissiBXLiTr o#: See Hampion v. Speehenagle, 11 Am. 
Dec 704, and note; Baudin t. BoliT, 14 Id. 181, and note; PJUKjaaemy. Batee^ 
22 Id. 444. 

Pabol P&oov ov LoffT Judicial IUcx)bd: See Bead v. iStoftm, 9 Am. Dec 
740; Jackaon t. CuOum, 18 Id. 158; Oentry v. Butchercift, Id. 172; Pruden v. 
Aldea, 34 Id. 51, and note In Woode ▼. ffalaey, 9 Pa. St. 145, the princi- 
pal case is ref ezxed to as authority for the poeltioii that where ezeontions are 
lost, docket entries are admissible in evidence 

EzmPLABT Damaoss vob Ertkbiro upok Lahb to Build Rahjioad 
witiiont taking the steps prescribed by statute for the condemnation of tha 
land, may be recovered if the act was malidons or opproeaive; otherwise nois 
Okkago eic B. B, Co. v. Baier, 73 10. 317, citing Harteyy. Tkomae. 



GaBSKADDEN V. POOBMAN. 

po waxxs, sa.] 

OnxBAL AflBioiniBNT ov Bbbob nr Chabox ov Ck)UBT, withont specifying 
the pnrtioalar points in which it is erroneous, will be disregarded. 

BmsT nr Faiolt Beoobd as to Bibth ov Child is ADurasiBLB Eynxnrai 
in an action brought by the father against a Justice for unlawfully soU 
*w»«^*»"g a maEriage with such child while a minor, and the testimony of 
the father is admissible to prove such entry. 

XnDXNCB ov CiBcuifBTAVoBS Showiko Fathxr's P&evious Abbbnt to 
Mabbiaox of his minor son is admissible in an action brought by the 
father against the justice who solemnised the marriage for the statatoiy 
penalty, but not evidence of subsequent conduct showing that the father 
was pleased with the marriage 

OfiBB ov EviDXHox SHOULD Spbcxf7 the purpose for which it is offered. 

OBJBonoN TO Pnoov ov Sbbvioe ov Konox required by law in an action 
for a penalty for unlawfully marrying the plaintiff's minor child, that the 
copy served was not a true copy because it omitted the word " one" in 
the expression " twenty-one years, " is too refined. 

Ebbob to Clinton county common pleas, in an action of debt, 
to reooTer a penalty from the defendant, a justice of the peace, 
for solemnizing a marriage -with the plaintiff's minor son with- 
out the plaintiff's assent. The plaintiff haTing offered in eyi- 
dence the notice required by lawto beserred before bringing the 

Ajc Dbo. Yol. ZZXYI— 10 



146 Cabseadden v. Poorman. [PeniL 

actioD with proof of service, the defendant objected to it that 
the copy served was not a true copy because it omitted the word 
" one" in the clause " being under the age of twenty-one." The 
objection was overruled and the defendant excepted. The other 
facts are sufficiently stated in the opinion. Verdict and judg- 
ment for the plaintiff, and the defendant brought error. 

Fleming, for the plaintiff in error. 

Armstrong and Campbell, for the defendant in error. 

By Court, Boqebs, J. The plaintiff asaignB as error the ad- 
mission of the testimony in the several bills of exception, and 
the chaige of the court. As to the latter, it must be disre- 
garded, as the general errors vrithout a specification of the points 
relied on, give no information to the adverse party. This was 
an action to recover the penalty of fifty pounds from the defend- 
ant, the plaintiff in error, who was a justice of the peace, for 
marrying the son of the plaintiff, who was a minor, without the 
consent of the father. To prove that the son was a minor, which 
was essentially requisite, under the act, it was given in evidence 
by the testimony of Peter Poorman, the plaintiff, as follows: 
** This is my family bible; that record is the record of the births 
of my children; the entries are in my own handwriting; the en- 
try of my son Henry's birth (the son alluded to) was made a day 
or two after the birth. It was truly made." The entry is, 
''fieniy, bom the fourteenth of January, 1818." The objec- 
tions to the testimony are two: that the bible is not evidence of 
the time of the birth, though duly proved, and that it can not 
be proved by the oath of the party to the suit. 

The first exception was not taken at the trial, and has been 
but little pressed in the argument here. Evidence of pedigree, 
of birth, and of death, is somewhat relaxed from necessity, and 
for these purposes entries in the register of burials, and the 
entries of the births and deaths of the members of the family, in 
a bible, are always given in evidence without objection. Indeed, 
without reverting to some such sources of information, it woxdd 
be, in many cases, impossible to prove the pedigree, or the time, 
either of tJie birth or death, of obscure individuals. Experi- 
ence has shown, that it is less exceptionable, and more to be 
depended on, than the frail recollections or memory of strangers, 
of such facts as are alone interesting to the parents, or the im- 
mediate members of the family. 

But although there can be no doubt, that the entries, when 
duly proved, are evidence, yet it is not so clear, that the party 



July, 1840. Cabskadden v. Poobman. 147 

in interest is a competent witness to authenticate the book, and 
prove the entries. No case has been cited, nor is any known, 
where the point has been directly dedded. It may be 
laid down as a general rule, that when the evidence is not 
to the court, but to the jury, the party in interest is not a 
•competent witness; but this, though a general, is not a uni- 
versal rule. In Garwood v. Dennis, 4 Binn. 326, it is said, 
** Necessity, either absolute or moral, is sufficient ground for dis- 
pensing with the usual rules of evidence." Thus in this coun- 
tiy, from necessity, the parly is competent to prove his book of 
•original entries, and there would seem to be an equal necessity 
here. Without reselling to the testimony of the parents, it 
would be, in many cases, very difficult to authenticate the taixnij 
leoord. It is believed, there is but little danger which can arise 
from such proof, accompanied, as it is, by the book itself, which 
is open to the inspection of the jury. An attempt to fabricate 
«n entry to subserve a particular purpose, would be easily de- 
tected, and it is difficult to believe that there is anything to fear 
from a false entry, made at a distant period of time, to answer 
a contingent purpose. When entered at the time it purports to 
bear date, it is liable to no objection, and there is no evidence 
on which a jury would place more implicit reliance. 

The defendant was permitted to give any evidence which 
tended to show the assent of the father to the marriage, or that 
he encouraged it; and for this purpose, he was allowed to prove, 
that the son's wife lived at the house of the father, previous to 
the marriage, that he knew he visited her, and that he, the son, 
thought a good deal of her. But they refused to admit evidence 
that since the marriage the father had put the son on a farm, 
and had expressed himself well satisfied and pleased with the 
match. In this the court have taken a sound and proper dis- 
tinction. We can not perceive in what respect such testimony 
conduces to prove either an encouragement or a previous assent 
to the marriage. It is a matter of no sort of consequence, so 
far as any inquiry into the improper conduct of the justice is 
involved, whether the parent is weU or ill pleased, or whether the 
match be good or bad. The act was intended to prevent clan- 
destine marriages, and for this purpose has imposed upon the 
justice a proper penalty, for marrying or joining in marriage, 
any person under twenty-one, without the assent of the parents. 
It is intended as a punishment of the o£Eender, rather than a 
compensation to the parent, and to make this depend on the fit- 
ness or unfitness of the match, would lead to indecent and worse 



148 Ease i;. John. [Pcnn. 

than fruitless inquiries. Nor is a good reason perceived, why 
the act should be eluded, because iiie kind and tender feelings 
of the parent induce him to receive into favor an erring chil'l, 
and to supply him with the common necessaries or comforts of 
life. Such testimony, by the encouragement it would give to 
angiy passions, would produce infinite mischief, which the court, 
by their decision, have properly prevented. 

The defendant further offered to prove, that the son commu- 
nicated his marriage to his father shortly after it took place, and 
what he said about it. The offer was eridently too general. The 
defendant should have specified what was said, and if it tended 
to prove assent or encouragement, on the authority of the case 
of Bodebaugh v. SandSf^ 2 Watts, 9, it would have been evidence. 
But as it stands, it is but little more than the repetition of the 
offer of evidence, which in another shape had been properly re- 
jected. 

The objection to the notice is too refined, nor can we see any- 
thing in ttie charge of which the defendant has the sUghtestrea^ 
son to complain. There is convincing evidence of every ibot 
necessary to maintain the suit, viz., that the son was a minor, 
and that the defendant, who was a justice of the peace, joined 
him in marriage without the consent of his parents. 

Judgment afSrmed. 

BaavmoL or Bibthb as EvmsNOB: See Jaeimm v. Xkiff, 1ft 
468| Woodard Y. SpiOer, 26 Id. 129. 



Ease v. John. 

[10Waxxi,107.] 
POBOEASEB OV GOODB WITH Wa&RANTT CAN NOT BlRUBir the ■MDe uA 

reoorer the prioe, on breach of the warranty, bat moat ana apoQ Ua war- 
ranty, if the Tendor had no knowledge of tiie nnaoundnen, and doea not 
oonaent to take the artiole back, and the contract itnlf reaerraa no xig^t 
to return it. 
BiruBN ov Abtiolb by Pubchabxb vor Fubposs of RBFini, where it la 
defective, is not effective for the purpoae of reecMaion, even though the 
vendor neglects to repair the article. 

Ebbob to Columbia county common pleas, in an action on the 
case in assumpsit. The case was, that the defendant had agreed 
for a certain sum to manufacture for the plaintiff a threshing- 
machine, warranted '' to be good and to answer the intended 
purpose." The declaration contained three counts: 1. That the 

1« Bodebaugh t. Stmkt. 



July, 1840.] Ease v. John. 149 

defendant agreed to make a machine which would answer the 
plaintiff's purpose, and was paid for it; but that he made it so 
nnskillfullj that it was useless. 2. That the defendant sold the 
machine with warranty, and reoeiyed the price, alleging a breach 
of the waixanty. 3. For money had and received. The con- 
tract, delivery of the machine, and payment were proved. 
There vras contradictoiy evidence as to whether the warranty 
was broken or not. The machine broke when put in use, and 
the plaintiff returned it for repairs, the defendant not being at 
home. It was never repaired, and the plaintiff never took it 
away. The court instructed the jury, among other things, that 
if there was a breach of the warranty, and a return of tiie ma- 
chine before suit, the plaintiff could recover the price; but if 
there vras no return he could recover only the difference between 
the price and the value; that a return of the article merely for 
the purpose of being repaired was not such a return as would 
affect the right to recover, unless there was a refusal or neglect 
to repair it for an unreasonable time, in which case the plaintiff 
might elect to consider it returned and recover the price. Ver- 
dict and judgment for the plaintiff, and the defendant brought 
error. 

Oomley and 8. Hqpbvm, for the plaintiff in error. 
Oreenough^ for the defendant in error. 

By Court, Boobbs, J. There is no objection to the charge of 
the court on the subject of warranty, except to so much of it as 
relates to the rescission of the contract. In Corrone v. Hender' 
wriy^ 15 Mass. 819; Huni v. SiUy^ 6 East, 449, it was held that a 
purchaser, who is entitled to rescind a contract, must place the 
vendor in slahi quuo in order to recover the consideration paid. 
Flow far the plaintiff was in a condition to do tUs may be 
doubted. But be this as it may, there is another objection to 
the charge, which can not be easily answered, which is, that the 
article was not returned, if at aU, with the consent of the vendor,^ 
and ttiere is no evidence to prove that the vendor knew of the 
nmv^nindness of the article at the time he sold. In Thorn v. 
Wym^ 12 Wheat. 188, Mr. Justice Washington sums up the 
caries, and the result is this. If upon a sale with a warranty, or 
i< by the special terms of the contract, the vendee is at liberty 
io return the article sold, and offers to return it, it is equivalent 
to an offer accepted by the vendor, and in that case the contract 



1. CoMMT y. JAndfrtMi; S. C, 8 Am. Peo. 103. 3. Aiirt y. SiXk, 

3. thanUm y. Wftm, 



150 Ease v. John. [PenxL 

is rescinded and at an end^ which is a sufficient defense to an 
action brought hj the vendor for the purchase monej^ or to en- 
able the vendee to maintain an action for money had and re- 
ceived^ in case the purchase money had been paid. The con- 
sequences are the same where the sale is absolute, and the- 
vendor afterwards consents unconditionally to take back the^ 
properly, because in both the contract is rescinded by the agree- 
ment of the parties, and the vendee as well entitled to retain 
the purchase money in.the one case as to recover it back in the 
other. But if the sale be absolute, and there be no subsequent 
agreement or consent of the vendor to take back the article, tlie> 
contract remains open, and the vendee is put to his action on 
the warranty, unless it be proved that the vendor knew of the 
unsoundness of the article, and the vendee tendered a retom of 
it in a reasonable time. 

Here it is an absolute oontmot of sale with waxzanty , and wiUi» 
out any right reserved to return the article, nor is there any evi- 
dence either of the return of it, or any consent of the vendor to 
take it back. The whole evidence negatives any such idea, for 
the return was for purposes of repair, and not with any inten- 
tion of rescinding the contract. The vendor was as much, and 
no more, bound to repair the machine as any other person would 
have been, and if there was any unreasonable delay in repairing 
it, the remedy is another way, and not by considering it as equiv- 
alent to a consent to rescind the contract, and thereby enable 
the vendee to consider the contract at an end. Here, then, waa 
neither an express nor implied consent of the vendor to take 
back the article, nor any proof that the vendor knew that it waa 
defective, and indeed, whether it was in truth, is a matter of 
much reasonable doubt. It depends much on the credit to be* 
attached to the statements of the witness. It was doubted 
whether there be a difference between the manufacturers in this 
respect and other vendors, that the former might be presumed 
to know it was unsound, although such a presumption does not 
arise as to others. But I perceive no warrant for the distinction 
in this particular in any of the cases, and we think it would be* 
mischievous to visit him with the consequences of fraud from a 
presimiption which, in numerous cases, woxdd be at war with 
the truth. 

Judgment reversed, and a venire de novo awarded. 

OwwKE TO BsrUBir Qoom ov Bbxaoh or Waxbastt not neoanftry before- 
bringlDg aotiimi BorrekiȤ v. Bevan^ 23 Am. Deo. 86; Jbaoler v. WUHamB^ 4 
Id. 579. 



July, 1840.] HoBTOK v. Cook. 151 

RnannoN ov Saui >ob FkiiUD: See FowUr v. IFt^ZieuiM, 4 Am. Dee. 079; 
Bvfingtcn ▼. (TerrM, 8 Id. 07; Rowley v. Bigehw, 23 Id. 0(^7. Generally, as 
to the vendor's right to rescind a sale for frand, see the note to ThurgUm v. 
Blanehard^ 33 Id. 702. That a contract can not be rescinded without mntnal 
CAosent where the drcamstances have been so altered by part execation that 
the parties can not be placed in aCalu quOf is a point to which Ka$e ▼. John is 
dted in Lyon v. Bertram, 20 How. (IT. &) 165. 



HOBTON V. GOOK. 

[10 WATn,194.] 

TO Pat Ahnuxtt, nr Comsidkbation of VomMMAHAKcm to sue the 
exaoators of the grantor thereof, binds the promisor, if the grantor was 
personally bound for its payment. 

Qraitior ov AmnTTTT in Txbms is, PuifA Faoix, PB!i80irA£LT BouHB forits 
payment, from whatever fond payable, and the covenant to pay implied 
from each grant, can be rebutted only by a plain intent on the face of the 
instroment that the annuitant is to resort only to the spedfio fond. 

Amnnrr to 0ns as ^uBaHAssB and not as Bxnxfioiabt should be oon- 
stmed as favorably towards the annuitant as the words will bear. 

Ebbob to the NorthtiiDberland county common pleas in an ac- 
tion of assumpsit brought by the administrators of Sarah Oook, 
deceased, to recoyer from the defendant the arrearages of a cer- 
tain annuity due the intestate. It appeared that the husband of 
the said Sarah deyised to her and to his son William, all his 
estate real and personal; that William conveyed a certain tract 
devised to him to a purchaser, and took from him a bond and 
mortgage to secure the payment of a certain balance of the pur- 
chase money, and that on the same an indenture was executed 
between the said William and the said Sarah, whereby the 
former, in consideration of certain rents due to the latter under 
her husband's will, and of the sum of one dollar, gave, granted, 
and confirmed to the latter for life, '' one annuity or yearly in- 
come of three hundred and twelve dollars," to be paid, had, 
issuing, etc., out of the yearly interest of the aforesaid bond and 
mortgage, the said William for himself, his heirs, etc., authoriz- 
ing and empowering the mortgagor, his heirs and representatives, 
to retain so much of the principal each year as would produce 
the interest required to pay the annuity, and to pay the said an- 
nuity annually, semi-annually, or quarterly, as he might think 
proper. The instrument further provided, that if the mortgagor 
should see fit to pay off the mortgage at any time, then the said 
William bound himself, his heirs, etc. , to put at interest an amount 
sufficient to raise the annuity. The said William afterwards 



152 HoBTON V. Cook. [Penn. 



departed this life after devising two thirds of his estate to his 
'widow and the residue to his son. His widow intermarried 
with the defendant Horton. Sarah Cook^ the plaintiffs' intes- 
tate, died leaving considerable arrearages of the annuity due 
lier. It was further proved hy the plaintifffl, against the defend- 
ant's objection, that the said defendant jirozaised that, in consid- 
eration that the plaintiffs wpuld forbear to sue the representa- 
tives of William Oook for the said arrearages, he would pay the 
same as soon as he could recover the mortgaged premises, and 
that the defendant and his wife did afterwards sue and recover 
on the mortgage, and that they bought in the land on execution 
and are now in possession. 13ie defendant asked instructions to 
the effect that William Cook was not personally liable for said 
annuity, or at all events that he was not liable for any interest 
accruing after his death; that the defendant's promise was void 
for want of consideration, and that at most the defendant was 
liable only for such proportion of the daim as the whole bore to 
the amount for which the mortgaged property sold. These in- 
structions were refused. It is not necessary to refer to the 
instructions asked or given on other points. Verdict and judg- 
ment for the plaintiffii, whereupon the defendant sued out this 
writ, assigning eirors in the admission of the evidence above 
mentioned, and in refusing the instructions prayed for. 

Oreevumght for the plaintiff in error. 

Donnd and Jordan, for the defendant in error. 

By Court, Gibson, C. J. If the grantor was personally bound 
for payment of the annuity, the promise to pay in consideration 
of forbearance to sue his executors, equally binds the defend- 
ant; and that is not controverted. It is urged, however, that 
what has been called an annuity, vms no more than an assign- 
ment of a portion of the interest accruing on the bonds and 
mortgage. But the grant of an annuity in terms, out of whatever 
payable, prima facie binds the person; and the implication 
from it of a covenant to pay, can be rebutted only by a plain 
intent, apparent on the face of the instrument, that the annui- 
tant should resort only to a specific fund. An annuity is an 
annual duty charged upon the person of the grantor only: Co. 
Lit. 441, b; but the grantee of a rent charge, which is not a 
pure annuity, may charge the land by a distress or an assize, or 
the person of the grantor by a writ of annuity, at his election: 
Litt., sec. 219. Now the grant, in this case, is stronger to 
charge the person, than the grant of a rent charge; for the sub- 



July, 1840.] HoBTON u Cook. 153 

ject of it is dedgnated as an annuity in terms, and ex vi termini^ 
the word imports the grant of a sum in gross, " so that no free- 
hold be chaiiged therewith:" Terms de Ley, 44; that is, as an- 
nuity; for it may certainly be charged on land in the shape of a 
rent. If it issue out of land, as by the modem practice it often 
does, the annuitant may make it personal or real, at his option; 
and though he may have a writ of annuiiy after a distress, he 
may do so only where he has not avowed in replevin, or brought 
an assize, which also is an election of record. But that the 
word annuiiy is the proper one to charge the person, is further 
manifest from the fact, that no writ of annuiiy lies for a rent 
<npeated by reservation. It is said in the law dictionary, verbo 
Annuity, that there are few modem grants of annuities without 
a covenant for payment, express or implied; and that an action 
of covenant is usually brought instead of a writ of annuiiy, 
which is much out of use. What, then^ is there to rebut the 
implication of such a covenant on the face of this instrument? 
The annuitant was not a beneficiary, but a purchaser; and the 
interpretation is to be as favorable to her as the words will bear. 
Payment was directed to be made out of the produce of pur- 
chase money, secured by bond and mortgage, an adequate por- 
tion of the principal being left in the mortgagor's hands, or 
agreed to be put out at interest by the grantor, should it be 
paid over to him. If the grant then were construed to be only 
an assignment of the fund, it is evident that the grantee's secu- 
riiy would be proportionately decreased; and it follows not that 
the designation of a particular fund for payment has the effect 
of discharging the grantor's responsibility. Such is the case of 
a rent charge, and such also was the case in 1 Boll. Abr. 227, of 
an annuiiy receivable out of a particular bag of money, or out 
of the grantor's coffers, or from a stranger. Besides, it is diffi- 
cult to say what remedy this annuitant could have had against 
the mortgagor; or how, in a suit on the bonds, she could have re- 
covered in the name of the obligee, just so much of the interest as 
would satisfy her annuiiy and no more ; or how, in the event of the 
obligor's insolvency, which has since happened, she could have 
had repeated recourse to the land which has since been sold on 
the mortgage, and ceased to be a security for her demand. A 
construction that would expose her to the risk of such events, 
without recourse to any guaraniy, would be plainly unreason- 
able and unjust. But that to find the means of satisfaction was 
to \ e the grantor's business, is evident from his covenant to put 
ilu^ principal at interest for her use, when it should be paid into 



154 Pattebson v. Lannikg. {Pemu 

his hands. His being the hand to receive and pay out^ she- 
could look to no other. He might have put the money out op 
merely personal security, and not even of her choosing; oi^ 
which it is unreasonable to suppose that she consented to rely. 
The grantor, then, having used apt words to charge his person, 
and having used none else to restrain their natural and technical 
effect, we must take it that he consented to be personally bound;, 
and consequently, that there was a sufficient consideration for 
the defendant's promise. 
Judgment affirmed. 



FosBKABAKCs TO SiTX, AS OosmDMBATSOVfi See Homoker 'w.JBberieyt 4 
Dec 477; SidweU ▼. Bvcuu, 21 Id. 887; Nchlet ▼. Ortem, U. 847; OlaHk v. 
Iiu$8el, 27 Id. 348. 



Pattebson t;. LAinnNG. 

[10 WaTXB, 136.] 

TtNAim IN ooMMON Takino bt DESCENT ETO i^uded M oopMoencra Ea» 

der the PennBylTania act of 1794. 
Warranty of Title ls Implied in Partition Deed between tenanti i» 

oommon taking by deeoent in Pennaylvania, and one of aaoh tenanti i» 

not a competent witneas for another in ejectment thereafter brought hf 

the latter to recover his share of the land. 

Ebbob to Bradford county special common pleas in an action 
of ejectment. The onlj question ^was as to whether one Charles 
F. Wells, who testified for the plaintiff, was a competent wit- 
ness, it appearing that the plaintiff and the wife of Wells, with 
others, were co-heirs at law of one HoUenbach, and as such co- 
heirs, were tenants in common of a large tract of land, of which 
the land now in controyersy formed a part, which was allotted 
to the plaintiff by a partition deed executed by the co-tenants. 
The testimony was admitted by the court below. Verdict and 
judgment for the plaintiff, and the defendant brought error. 

BcUdurin, for the plaintiff in error. 

WUlision, for the defendant in error. 

By Court, Kennedy, J. If the tenancy in common, which 
existed prior to the deed of partition, made in this case, between 
the tenants, had been created by an act of their own, the decis- 
ion of the court below, admitting Charles F. Wells, who, with 
his wife, one of the tenants in common in fee, was a party to the 
deed of partition, to testify as a witness on behalf of Mary Ann 
Ijanning, the plaintiff below, another of the tenants in common^ 



•Jqly, 1840.] Patiebson v. Lanninq. 15& 

and party also to the deed, would, according to the doctrine of 
tbis court, established in Weiser v. Weiser, 6 Watts, 279 [30 Am. 
Dec. 818], haye been correct. But this was not the case. They 
acquired their respectiye interests in the lands, mentioned in 
the deed, which were thereby parted and divided among them, 
by descent or act of the law; in the same manner as parceners 
in England do by the rule of the common law. The act of 1794» 
which regulated the descent of real estates in this commonwealth 
at the time their ancestor died, cast the lands, which they sub- 
sequently, by their deed of partition, divided and app,>rtioned 
among themselyes, upon them, declaring that they should ** in- 
herit and enjoy the same as tenants in common in equal parts^ 
in the same manner as if they were all daughters of the intes- 
tate.'' The same act also jiroTided, that partition might be had 
at any time, of the lands, upon the apjdication of one or more 
of them, by petition for that purpose to the orphans' court 6f 
the couniy within which the lands lay. 

The course of i»roceeding for having the partition made, by 
setting apart and allotting to each, his or her proper proportion 
or purport, is also thereby prescribed; so that either one might 
compel it to be done at pleasure. In this respect, they would 
seem to have been placed upon the same footing, in regard to 
each other, as coparceners in England stood at common law. 
Parceners take by descent, which is an act of the law, as the 
tenants in common did in this case before they made partition; 
and as Lord Ooke observes, '* there is a diversity between a 
descent, which is an act of the law, and a purchase, which is an 
act of the party:" Co. lit. 163 b. When the law bestows an 
estate, it is careful to provide the parly with whatever may be 
requisite, not only to relieve him from any inconvenience which 
may attend his enjoying the estate, but also to secure him against 
any loss, as far as may be practicable, which may accrue in con- 
sequence of the reUef granted; whereas in the case of an estate 
acquired by purchase, the law leaves the party to seek relief 
from such inconvenience, as shall be necessarily incident to his 
purchase, by his own exertion or act, and in his doing so to 
provide, if he wishes it, against any future loss which may ac* 
crue to him from the relief which he has gained. Thus, for 
instance, when any one or more of a number of parceners felt 
any inconvenience, arising from the united possession and en- 
joyment of the lands held in coparcenerj, the law enabled him 
or them to compel the remaining parceners to make a partition 
of the lands. But in the case of joint tenants or tenants in com- 



156 Patterson v. Lannikg. (TeniL 

mon, fheyhaTing beoome sooh 1>}r their own aot^ oooldnotatihe 
•common law oompel a partition. It was competent for them, 
liowerer, to make partition by agreement. But then if they made 
partition without annexing an express warranty or condition to 
it, so that if any one of them should thereafter be evicted of 
his part, or any portion thereof, by a title paramount, he shonld 
baye right to claim a new partition or compensation from the 
rest for his loss, the law would not imply anything of the kind, 
as it would in the case of parceners, who became invested with 
their rights to the land by act of the law. By Tirtne of the con- 
-dition annexed, by implication of law, to a partition of lands 
made between parceners by consent or deed, if any one of them 
should be evicted afterwards from any part of her allotment, 
however small or insignificant, she might re-enter upon the other 
parceners or their heirs, and thus annul the whole partition; or 
she might, at her election, hj virtue of the warranty annexed to 
the partition hj law, vouch them when sued for her part or any 
portion thereof, in which case she would only be entitled to 
have a recompense for the part actually taken from her: Co. lit. 
174 b, 174 a; Bustard's case, 4 Co. 121; 4 Oru. Dig., tit. 32, 
Deed, c. 24, sec. 34. So if there be two coparceners of certain 
lands with warranty, and they make partition of the lands, the 
warranty shall remain, because they were compellable from the 
first to make partition: Co. lit. 165 a, 165 b. 

The law, however, is difierent as to joint tenants, who at the 
^K)mmon law were not compellable to make partition; and hence 
if they hold their lands under warranty, and make partition 
thereof without writ, the warranty will be destroyed: Co. lit. 
187 a. And besides, it would seem as if the legislature in- 
tended, by the act of 1794, that the children of an intestate, 
dying seised of lands situate within the state, as also his other 
lineal descendants of a more remote degree, when nearest to 
him, at the time of his death, and standing in the same degree 
of relationship to him, should succeed to the lands by descent, 
and hold the same as coparceners, or else, why use, in the close 
of the second clause of the third section of the act, the follow- 
ing words: ** Such estate shall descend, and be distributed to 
the said several persons, as tenants in common, in equal parts, 
however remote from the intestate the common degree of con- 
sanguinity may be, in the same manner as if they were aU 
daughters of the person dying intestate." The words here, " in 
the same manner as if they were all daughters," may, very 
fairly, I think, be regarded as having a reference to the mannef 



July, 1840.] Patterson u Lanninq. 157 

in which lands descended to coparceners in England, according^ 
to the rule of the common law; for by it, two or more daughters 
there, being the only issue of the intestate, at the time of his 
death, his lands descended to them as parceners; that is, each 
taking an equal interest therein, with a right to compel partition : 
Lit., sec. 241; 1 Inst. 164 b. The words just recited were no 
doubt used in contradiction to the rule which governed in the 
case where the issue consisted of sons, or sons and daughters, 
which was, that the eldest son in being at the time of the death 
of the ancestor, took the whole of the lands by descent. It is 
true, however, that these words seem by their position to be 
placed in immediate connection with the second clause of the 
section, which provides for the lineal descendants of the intes- 
tate, standing in equal degree to him, but in a more remote one 
than children; and therefore might be said, not to be applicable 
to the first clause, which embraces the children only of the in- 
testate. But as no sufficient reason can, I apprehend, be given 
why the legislature should have designed to make a distinction 
in this respect, between the children and the more remote issue, 
in a direct line of the intestate, the words may be considered aa 
explanatory of the manner in which it was intended either 
should hold the lands. The parties, therefore, to the deed of 
partition given in evidence here, must be considered as resem- 
bling coparceners in many respects, at least, if not in all. They 
acquired the lands by descent or act of law, as coparcenierB do 
in England; and by the same law under which they acquired 
the lands, they were rendered liable to make partition of them. 
So in regard to the priviiy that e^ted between them, it would 
seem to have been threefold, as in the case of coparceners:. 1. 
In estate; 2. In person; and 3. In possession; and not like,, 
as it is between tenants in common created by their own act,, 
where there is no privity except that in possession: Oo. Lit. 
169 a. 

Seeing, then, they were created tenants in common by the act 
of the law, without any act whatever of their own, and that the 
same law also rendered them liable to make partition at the will 
and pleasure of any one or more of their co-tenants, it would 
therefore seem to be right, not only on the ground of analogy, 
that a partition having been made between them by deed, the 
same warraniy and condition should be considered as annexed 
by law thereto, as if they had been parceners, but likewise on 
the ground of reason, it would seem to be requisite that they, 
as also tenants in common, created in this state by our law oi 



158 Phillips v. Greoo. [Penn. 

descents, should be regarded as coparoeners, in order that their 
partition, by deed, of the lands held in common by them, shall 
not have the effect of destroying any preTions warranty made, 
securing the lands to their ancestor, as might, perhaps, be the 
-case, were they to be considered in the light of tenants in com- 
mon created by purchase. We therefore think, that Oharlee 
F. Wells was interested in the event of this action, in favor of 
the party who called him, and that the coilrt below, for this 
ineason, erred in permitting him to testify in her favor. 
Judgment reversed, and a venire de novo awarded. 



Wabbaxtt Impldbd oir FARrnxoN, whik: See FeeOker v. Strokoedbet^ 94 
Am. Deo. 842; VentMe ▼. Beamehan^ 28 Id. 74; Wmser r. WeUer^ SO Id. 
818, and note. The dootrina of tha prinoipal oaaa ia feUowad oo tiiia poinl 
4n Seatam v. Bant, ^ Watta ft a 185. 



PmTiTiTPS V. Gbegg. 

[10 Wizn, US.] 

Masbiaoi Valid sr thb Law or the Plaok wmoKi GiunaAXiD ia ^alid 
avarywhera^ and if invalid thare ia invalid avaiywhera; Imt to tha kitfear 
part of this mla thara ara axoaptiona, as in oar^aan caaaa whara maniagaa 
batwaan oitisena of ona oonntrj, while in anotiiar, may be oalabntad ao- 
cording to the laws of their own country. 

VoBSiov Laws hust bs Pbovbd as facta, and will not be Jndidallynotioad. 

BviDXzrca to Pbovb Fobxion Law mnat be tha beat of which the natnra 
of the caae admita. Ordinarily, written laws of * foreign country most 
be proved by dnly anthanticated copies, and the unwritten law by tha 
testimony of persons skilled therein; bat this role is not nniveraaL 

TvxDfoinr or Pbrsovs UNLXAaNED nr thx Law that prior to 1791 it waa 
coatomary for proteetant settlers in the Spanish colony of Misrissippi to 
be married by * justice of the peace, under a regulation to-that affect 
adopted by the governor or sapecintandent» is admiasibla to uphold * mar- 
riage so celebrated, unless the party objecting thereto shows that better 
evidence is attainable. 

PuBOHABX or liAifD BT A Fatheb IK Sov's Namx is prima fock an ad- 
vancement^ but only to the extent of the sum actually paid by the father 
without regard to any subsequent rise in the value of the land. 

POOBBSSION BT TXKANT IN OOMMON 18 NOT AdVBBSB TO Go-TBNANTB. ao ttS 

to found a title by the statute of limitatioBS, unless accompanied by cir- 
cumstances unequivocally showing an adverse intent, auch aa a refusal, 
upon demand, to pay over the co-tenant's share of the renl 

Ebbob to the Allegheny couniy district court, in an action of 
ejectment for a certain tract of land. The titles under which 
the plaintiflTs and defendants respectively claimed sufficiently 



Sept. 1840.] Philufs v. Gbegg. 159 

Appear from the opinion. The objections to the plaintifEs' title 
are also stated in the opinion. One objection ivas that the evi- 
dence bj which the plaintiffs sought to prove the law under 
which the marriage of the parents of Maty Swazey, through 
whom the plaintiffs claimed, took place, was incompetent and 
insufficient. It appeared that the alleged maiziage was cele- 
brated in the Natchez country, in the Mississippi territoiy, prior 
to 1791. The evidence to prove the marriage is stated in the 
•opinion; and it was proved by several witnesses, none of whom 
were learned in the law, that at that time it was customary in 
that territory for protestants to be married by a justice of the 
peace, and that a regulation to that effect had been made by the 
^governor. The evidence was held competent in the court be- 
low. Another point relied on by the defendants, was that the 
plaintifiis' claim, if any, was barred by the statute of limitations. 
It appeared that Oliver Ormsby and his heirs, who were lessors 
of tiie defendants in this case, had been in possession of the 
premises for more than thirty years. The land, as appears 
from the opinion, was the properly of Oliver Ormsby's father at 
bis death, in 1806, and the said Oliver took out letters of admin- 
istration on his estate, and took possession of the whole prop- 
^erty, and received all the rents. The land was, however, as- 
-sessed to the heirs of his father until 1820, when he had it 
assessed in his own name. There seems to have been no evi- 
dence of any demand of a share of the rents by any of the 
<yther heirs or of any refusal to pay over any part of the rents, 
or of any other indication of an exclusive claim to the property 
lyy Oliver Ormsby, except his having the property assessed to 
bim after 1820. The court below instructed the jury that *\ the 
possession of one tenant in common is, firimafaeie^ the posses- 
sion of his companion also," and that therefore ** the possession 
of the one can never be considered as adverse to the titie of the 
other, unless it be attended with circumstances demonstrative 
of an adverse intent, such as demand by the co-tenant of his 
«hare of the rent, and refusing to pay, saying he claims the 
whole; or when one joint tenant bade the other go out of the 
house, and he went out accordingly," quoting Lodge v. Patter-' 
^Bon, 27 Am. Dec. 835; and it was left to the jury to determine 
whether or not there had been any unequivocal act of Oliver 
Ormsby, showing that he had denied the titie of Maiy Swazey, 
and intended to hold adversely to her, before May, 1815. If so, 
the statute of limitations would be a bar; otherwise, not. The 
instructions, as a whole, favored the plaintiffs on all the points 



160 Fhillifs v. Gbeqg. [Penz^. 

insisted on bj the defendants. Verdict and judgment for ib» 
plaintifffl, and the defendants brought error. 

DurUop and Shaler, for the plaintifEs in error. 

Metcalf and Forward, for the defendants in error. 

By Court, Boobbs, J. The plaintiffs claim title under Mazy 
Swazey, the daughter of John Ormsby, jnn., and Gxaoe, daugh- 
ter of John Ormsby, sen., and the defendants under the heirs of 
Oliyer Ormsby, son of John Ormsby, sen., who died seised of the 
premises. In deducing title, it becomes material for the plaintiflfs 
to prove that Maiy Swazey was the legitimate daughter of John 
Ormsby, jun., and as such entitled to one third of her grand- 
father's estate. On this arises one of the principal questions in the 
cause. Mary Swazey was the daughter of John Ormsby, jun., 
by Lydia, who was the daughter of Nathan Swazey. It has been 
proved by testimony which leaves the matter clear of any doubt, 
that John Ormsby, jun., and Lydia Swazey» ^ere married by a 
justice of the peace, and that Mary Swazey was the issue of tha 
marriage. The marriage was celebrated in due form, within the 
limits of the present state of Mississippi, which at that time de 
facto was under the colonial government of Spain, although it has 
been since ascertained by commissioners appointed by this coun- 
txy and Spain, that the spot where the marriage took place waa 
within the territory belonging to the United States. 

These facts are proved by the father and mother of Mary 
Swazey, and by other ancient witnesses, who have been examined 
by the plaintiffs and defendant, and by the repeated acknowledg- 
ment of John Ormsby, jun., in his life-time. Notwithstanding 
this mass of testimony, the defendants contend there is no legal' 
proof of the legitimacy of Mazy Swazey, and that consequently 
the plaintiffs are not entitled to recover. The general principle 
is, that between persons sui juris, marriage is to be decided by the 
laws of the place where it is celebrated. If valid there, it is valid 
everywhere. If invalid there, it is equally invalid everywhere. To 
this rule, as to almost every general rule, there are well-recognized 
exceptions, and among others may be classed those marriagea 
celebrated in foreign countries by citizens entitling themselves, 
under certain circumstances, to the benefit of the laws of their 
own country. That a foreign marriage, valid according to the 
laws of the place where celebrated, is good everywhere also, 
seems to be a rule of universal application, I mean as recognized 
in England and in this country. But our courts have not estab- 
lished, e converso, that marriages of citizens not good according to- 



^ 



Sept 1840.] Phillips v. Gbegg. 161 

the place where oelebiated, axe tuuTersallj, and under all posable 
circumstaneefly to be difioegarded. The best course unquestion- 
ably is, to be married according to the laws of the country where 
the marriage takes place, for then no question can arise. But 
if this can not be done on account of legal or religious difficul- 
ties, the law does not say, '' that citizens shall not marry abroad 
according to the forms and ceremonies recognized as valid and 
binding in their own country." 

The common law, under which we live, considers marriage in 
no other light than a diril contract; such a marriage as has been 
celebrated between these parties would be clearly good. Kow 
supposing that the colonial laws of Spaii^ viewed marriage as a 
sacrament to be celebrated only according to the forms pre- 
scribed by the catholic church (of which, by the by, we have 
not a shadow of evidence), still it may admit of a very serious 
doubt, whether, under the very peculiar circumstances of this 
case, the marriage would be held bad by the courts of this 
country, so as to bastardize the issue. The marriage took place 
between persons who were subjects of Spain de /ado only, in a 
country the boundaries of which were unsettled, and in dispute 
between Spain and the United States, both parties claiming it, 
and which was subsequently found, on accurate survey, to be 
in truth within our limits. But this is a question which we are 
bound not to decide, as we are with the defendant in errror on 
other grounds. The only point is, the manner the colonial laws 
of Spain, as to the mode of celebrating marriages, are required 
to be proved. It is an established principle that foreign laws 
can not be judicially taken notice of; the well-settled doctrine 
being, that no court takes judicial notice of the laws of a foreign 
country; butthey mustbeprovedasfacts. In whatmanner, then» 
are they to be proved? and this, it is obvious, will vary according 
to circumstances. The general principle is, that the beet testi- 
mony or proof shall be required that the nature of the thing ad- 
mits of; or in other words^ that no testimony shall be received 
which presupposes better testimony attainable by the pariy who 
offers it. And this rule applies as well to the proof of foreign 
laws as other facts. In this, as in all other cases, no testimony 
is required which can be shown to be unattainable: Church v. 
EvJbeH,^ 2 Granch, 237. 

Generally iq>eaking, authenticated copies of written laws, or 
other public instruments of foreign governments, must be pro- 
duced. They are required to be verified by the sanction of an 

▲m. Dmo. Vol. JLUVi— U 



162 Phillips v. Obegg. [Penn. 

oath, unless ihey are verified by some other high authority, 
which the law respects not less than the oath of an individual: 
2 Cranch, 238. The usual modes of authenticating are by an 
exemplification, of a copy under the great seal of tiie state, or 
by a copy proved to be a true copy, or by the certificate of an 
officer authorized by law, which certificate must itself be authen- 
ticated. Foreign unwritten laws, customs, and usages, may be 
])roved, and must ordinarily be proved by parol evidence. And 
the usual course is to make such proof by the testimony of com- 
petent witnesses instructed in the law, under oath. But al- 
though these are the usual modes of authentication, yet they 
may be relaxed or changed as necessify , either physical or moral, 
may require, where there is reason to believe they are unattain- 
able, and where a rigid adherence to them may probably pro- 
duce extreme inconvenience or manifest injustice. In short, 
the peculiar circumstances of the case must enter laigely into 
the consideration of the question of the competency of the evi- 
dence. In the first place it is a matter of no inconsiderable 
weight, that the adoption of the strict rule, in its application to 
the early settlers on the Mississippi, may jeopard the rights, and 
bastardize the issue, of many of our citizens. It must be recol- 
lected that this marriage took place fifty years ago, at a period 
when the boundary line between the United States and Spain 
was in dispute and unsettled; and that the place where it was 
celebrated has been since ascertained to have been within our 
limits. It must not be forgotten, that the territory was in a 
state of transition from France to Spain, from Spain to France, 
and from France to the United States, for most of the time 
under a colonial or territorial government, nor is it certainly 
known whether or where the edicts of the governor or superin- 
tendents of those provinces are preserved, whether they are in 
the archives of France or of Spain, or whether they remain 
among the local records of the present state of Louisiana or of 
the state of Mississippi. It may be, and most probably is, im- 
possible to procure an authenticated copy of the edict or law by 
which marriage may have been regulated at that time within the 
colonial government of the Spanish monarchy. Nor will such 
proof be required; but it is contended that it might have been 
proved by the oath of witnesses instructed in the law; but 
whether the testimony of counsel at the present day, as to the 
temporary edicts or fieeting customs of a colonial government 
which was ever in a state of fiuctuation, and which has long 
elnce p&ssed away, could be obtained; or if obtained, would be 



Sept. 1840.] Phillips v. Gbeoo. 163 

more aatistbotoij than the testimony which has been proonzed, 
is not Tety dear. At this distance of time,, better testimony of 
the laets of the maniage of obscoze individuals can not be ex- 
pected. It is sufficient to satisfy the scmples of the most 
fastidions. 

Before the defendants can be pennitted to allege that such 
proof should not be laid before the jury, it was incumbent on 
fhemy under the peculiar circumstances of the case, to show that 
there was better in existence attainable by the plaintiff: that a 
JQstioe of the peace was not authorized to celebrate marriages 
between persons who professed the protestant &ith. It is very 
probable that a regulation, similar to one of which the witness 
speaiks, was made by the local authorities. For in the documents 
ooUeoted by order of congress, we are informed, that the super- 
intendent of the province of Louisiana was authorized to per- 
mit intermarriages between new settlers, and Spaniards of both 
sexes, with a view to the more easy incorporation with the na- 
tives. In that instance the laws of marriage were relaxed, and 
it is very likely that the conscientious scruples of protestant set- 
tlers were respected by the colonial government. The witnesses 
distictly prove that it was customary for protestants to be mar- 
ried by a justice of the peace, that such a regulation had been 
made by the governor or superintendent, to whom the power 
was intrusted at the request of protestant immigrants, and that 
such marriages so celebrated were held valid by the political 
power of the state. Although it might be possible to give higher 
evidence than this of the marriage, yet it would be unreasonable 
to require it, as to a marriage celebrated between citizens of the 
country fifiy years ago, in the setUements on the MississippL 
The only plausible exception which has been taken to the evi- 
dence is, that the testimony does not proceed from witnesses 
learned in law. But this objection is entitied to less weight as 
it respects the ceremony or validity of marriages, in which every 
citizen is so much interested, and with which in general they are 
so well acquainted. In Boman Catholic countries, and in some 
protestant countries, marriage is treated as a sacrament, but in 
this as a dvil contract. It is very likely it \a held to be a sacra- 
ment in the colonial governments of Spain, although it is by no 
means improbable, that as the witnesses state, in the then Span- 
ish province of Louisiana there was a relaxation in the laws 
favorable to the conscientious scruples of persons of different 
religious creeds. 

I^e plaintiff in error also alleges, that John Ormsby, jun. was 



164 Phillips v. Gbegg. [Pciip. 

advanoed by his father in his life-time to the fall amount of bia 
share of his father's estate. 

The first of April, 1769, John Ormsby, sen., entered three ap-^ 
plications for adjoining tracts of land; one in his own, name^ 
one in the name of his son John, and one in the name of his son 
OUver, as whose heirs the defendants daim titie. It is a gen- 
eral rale in eqoiiy, that when a man bays land in the name of 
another, and pays the oonsideration money, tiie land will gener- 
ally be held by the grantee in trast for the person who so paid 
the porchase money. Bat this doctrine most be taken with, 
some exceptions, which are not inconsistent with the general 
principle. For when a parent porohasee in the name of the son, 
the parohase will be deemed prima facie an advancement, so as- 
to rebut the presumption of a resulting trust for the parents. 
The moral obligation of a parent to provide for his children, ia 
the foundation of the exception; or rather, of the rebutter of the^ 
presumption; since it is not only natural, but reasonable to pre- 
sume, that a parent, by purchasingin the name of a child, meana 
a benefit to the latter, in discharge of tiie moral obligation, and 
also as a token of parental affection. In addition to the l^gal 
intendment, that the application was designed as gifts to his 
two sons, it may also be inferred, that such was his intention, 
from his subsequent conduct. He suffered his sons to treat the 
land as their own, took out no patents himself, but left them to 
complete their tities for their respective tenants, by procuring 
patents when tiiey arriyed at age. Oliver, when he came of age, 
paid the purchase money for his tract, and obtained a patent in 
his own name, and for his own use. And John, when he came 
of age, being indebted to his father, and to others, conveyed his 
tract to his mother (by whom it was afterwards sold), and the 
purchase money applied to the payment of his debts. This was 
after John had left the country. We are therefore fully war- 
ranted in saying, that this was a gift by the &ther to the son, of 
a tract of land, at the time of the application. 

Every fact in the cause leads us to the same conclusions. 
The conveyance from John to his mother was for a nominal 
consideration, and that it was with the assent and approbation 
of the father, is an infererence which fairly results from all the 
circumstances attending the transaction, and with a full under- 
standing that it should be sold, and the proceeds applied to the 
payment of the debts of John. For it appears, that the properly 
conveyed to the mother was sold, and the proceeds passed to the 
credit of John, viz. , the sum of six hundred pounds, received from 



Sept. 1840.] Pmrj.TPS v. Gkego. 165 

Oulbertson, the purchaser. It can not be viewed in any other light 
than the payment of a debt, out of the proceeds of property, un- 
derstood and acknowledged to be the property of John. The 
father explains the transaction by an ''N. B.," to be a memoran- 
•dum of the different payments on his son John's account. There 
is nothing which indicates that he had made or intended a gift to 
his son of the sum of six hundred pounds. It is an account 
atated, as debtor and creditor, between himself and son, in 
which he charges him with payments on his account, and credits 
him with money receiTed in his character of trustee, or as the 
recipient of the money of the wife, who was the trustee. When 
we recollect the habits of John, his indebtedness to his father 
«nd others, connected with the subsequent conduct of the 
father in crediting the amount received, we can not bring our- 
4aelT6B to believe that the conveyance was intended as a gift, to 
ihe mother, of the premises. We are constrained to think it 
was designed for the honest purpose to which it was afterwards 
■applied. It may have been that, at the time of the conveyance, 
John was not indebted to his father in the whole amount 
of the account, but there were debts then owing, and for 
^hich the father became responsible, and afterwards paid. 
If, then, this was intended as a gift by the father to his sons, it 
was an advancement to them, at the time of the application, to 
•an amount equal to the sum, viz., seven shillings and sixpence, 
•actually paid by the &ther. The subsequent rise in the value 
of the property, caused by the improved condition of the coun- 
try, can not be taken into the account. The rule is to charge 
the child with the value of the thing at the time of the gift, 
4Uid no better rule can be established to ascertain that value, 
than the amount which the parent has actually paid on account 
of the purchase. If a parent purchase land in the name of the 
sou, and pay only part of the purchase money, it will not be 
pretended that the son is bound to bring into hotch-pot more 
than the amount paid, whatever artificial or real value the land, 
may have obtained at the time of the death of the parent. 

As to the statute of limitations. In the charge of the court to 
the jury there is no error, nor in truth is there any error as- 
signed; although the counsel, in the argument, took exception 
to part of ihe charge. In those exceptions he has totally failed. 
The law on this point is so well settled, that it would be a waste 
of time to examine particularly all the positions laid down by 
the court. 

Judgment affirmed. 



166 Hart v. Gbego. [Pezrn. 

Masriaox, VALmnr or, bt what Law Detxbminbd: See 2>eeouehe ▼. 
Sa/oeiAtr, 8 Am. Dec. 478, and note; Medway t. Netdham^ Id. 131, and note; 
W€st Cambridge ▼. Lexington, 11 Id. 231; FomsMU v. Murray, 18 Id. 344; 
Sneedv. Swing, 22 Id. 41; Tayhr v. S'loett, 22 Id. 156; ffarding v. Alden, 23 
Id. 549. That the validity of a marriage is determined by the Ux lod eon- 
traetuB, is a point to which PhilUpe v. Oregg is cited in PaUermm v. Cfaines, 6 
How. (U. S.) 687. 

Foreign Mabbiaoe, Pboov and Validitt or: See Taylor ▼. Stoett, 22 
Am. Dea 166; State v. Kean, 34 Id. 162, and oases cited in the note thereto. 
As to the admissibility of parol evidence of the laws and customa reepeotliig 
marriage, of the state in which a particular marriage was celebrated, see 
Taylor v. 8weU, 22 Id. 156. As to the validity o^ a marriage celebrated be- 
fore a magistrate in the Spanish colonies since ceded to the United States, 
the principal case is approved in HaUeU v. CoUine, 10 How. (U. S.) 181. 

Proo7 07 Laws of Another State o& Ck>nNTRT: See Lapice v. SmUk^ 
33 Am. Dec 566, and other cases and notes in this series referred to in the 
note to that decision. See, also, particularly as to proof of laws relating to 
marriage, Taylor v. 8weU, 22 Id. 166. 

PnacHASE 07 Land bt Father in Son's Name mot an Adtakgbmeht, 
WHEN: See Jackaon v. MaUdorf, 6 Am. Dec. 355. 

Trust Results vbom Pubohasb of Land in Another's Name in favor 
of the party paying the consideration, when: See liHfie v. OoMn^ 3 Am. Deo. 
478; Denton v. MeKemsie, 1 Id. 664; Jackaon v. ATotk, 8 Id. 806; HaU v. 
Sprigg, 12 Id. 506; OupMU v. IdM, 19 Id. 676; Jaehon v. Miller, 21 Id. 
816; Kiderv. Kider, 27 Id. 308; DepeyetetY. OoM^2^1^ 72^; SmUhealT. 
Gray, 34 Id. 664. 

Entry and Possession bt One CkKTENANT Inure Oinsrallt to the ben- 
efit of all the co-tenants: See Coleman t. HyichenKm^ 6 Am. Deo. 649; Shmm 
way T. HoUfrook, 11 Id. 163; Lodge v. Pattereon, 27 Id. 336, and note; 
Vaughan v. Bacon, 33 Id. 628. 

Ouster and Adverse Possession bt Go-tenant: See Cdknumy, ffulek' 
eneon, 6 Am. Deo. 649; Barnard v. Pope, 7 Id. 225^ and note; GUlaepie v. 
Otburn, 13 Id. 136, and note; Jackaon v. WhUbeck, 16 Id. 464; Town ▼. Need- 
ham, 24 Id. 246; Thomaa v. Oarvan, 26 Id. 708; Lodge v. PaUeraon, 27 Id. 
836b and note; Baird v. BaMTa Heira, 31 Id. 399, and note. The doctrine 
of the principal case on this point is referred to with approval in Blackmore 
V. Oregg, 2 Watts ft S. 189; BoUon v. HanUUon, Id. 299; HaU v. Matkiaa, 
4 Id. 336. It is cited generally as an aathori^ on the sabjeot of what oon« 
ftitates SQoh a possession as will be ripened into a title l^ the steiiite oi 
limitations, in Hoekenbury v. Snyder, 2 Id. 250. 



Habt v. Gbego. 

[10 WATn, 185.] 

Bhibt bt one Co-tenant or Coparcener inures to the benefit of aO, 
and oan not beoome adverse without some nneqnivooal act amoimting to 
an aotoal disseisin or ouster of the other co-tenants. 

Pbroxftion of Bents aitd Profits bt one Co-tenant, and erecting fences 
and buildings adapted for the cultivation of the common land, do not 



Sept 1840.] Habt v. Obegg. 167 

amoiint to a duMisin of the other oo-tenants: ao» it seemSy even though 
the receipt of the rents and profits is accompanied by a daim of title to 
the whole land. 

Xakiko out Patent to Laitd bt one Co-hsib ezpressly in trust for him- 
self and the others is evidence of an intention to hold for all. 

Impbotfr Admusion or Bboobb Coft or Instbumbnt, the original of 
which is in the possession of the party ofiering it, is cured by the subse- 
quent production of the originaL 

Ebbob to Allegheny oounly district court in an action of eject- 
ment to reooyer the ondiTided third part of a certain tract of 
land. The plaintifffl and defendants daimed respectively under 
the same title as in the preceding case of PhiUips t. Oregg, The 
points relied on were also, in the main, the same. The princi- 
pal reliance of the defendants, however, was on the statute of 
limitations. The facts upon which that defense was based, in 
addition to those given in the statement to PhiUips v. Oregg, are 
sufficientiy stated in the opinion. Among other evidence, the 
plaintiflh, to prove the derivation of their titie from Maxj 
Swazey, introduced a copy of a deed to themselves from the 
said Maiy Swazey and her husband, from the records of the re- 
corder of deeds. The defendants objected to the copy because 
the plaintiffs were in possession of the original, but the copy 
was admitted, and tiie defendants excepted. Afterwards the 
original was produced, and handed to the defendants. The 
court below gave the same instructions as in PhUUpa v. Oregg, 
€mie,158. 

DurUop and 8?hdler, for the plaintiff in error. 

MeCandle88 and MeUsalf, for the defendant in enor. 

By Court, SsBGBAzrr, J. The only point in this case which 
distinguishes it from those already decided in the other cases, 
arises upon the statute of limitations. The defendant insisted, 
that the circumstances proved in the cause were of such a nature, 
as that in point of law, the jury were bound to presume an ao- 
tual ouster of the plaintiff by Oliver Ormsby. The court below 
refused to give this binding instruction to the jury, but left it 
to them to decide, as a matter of fact upon the evidence; and 
this leads to an investigation of the origin and grounds of the 
law on this subject, and of the principles settied in respect to it. 

Littleton in his Tenures, and Lord Coke in his Commentaries 
on Littleton, are perhaps sufficient to show us how the law 
existed in their days, and has been handed down to us. Little- 
ton, in section 896, says, if a man seised of land in fee, have 



168 Habt u Gbeqq. [Penn. 

issue two Bons, and die aeised, and the joungeet son enter hj 
abatement into the land, and hath issue, and dieth seised, and 
the land descend to his heir, and the issae enters, in this case, 
the eldest son and heir may enter by the law upon the issne of 
the younger son, notwithstanding the descent; because that 
when the youngest son abated before any entry by the youngest 
son, the law intends, that he entered claiming as heir to his 
father; and for that the eldest son claims by the same title, that 
is to say, is heir to his &ther, he and his heirs may enter. But 
(he says in section 897), the case is different if the eldest son 
enter and is seised, and after the youngest son disseiseth him, 
because the youngest son cometh to the lands by wrongful dis- 
seisin done to his eldest brother, and is like a stranger. In 
section 898, he puts the case of coparceners. In the same man- 
ner, if a man seised of land has issue, two daughters, and dieth, 
the eldest daughter enters into the lands claiming all to her, and 
thereof solely taketh the profits, and has issue and dies seised, 
by which her issue enter, etc., yet the younger daughter or her 
issue, as to the moiefy, may enter upon any issue of her elder 
daughter, for that they claim by one same title. So in note 175, 
by Lord Nottingham, to Co. Lit., one coparcener can not be 
disseised without actual ouster, and claim shall not alter the 
possession. 

According then to these, the highest authorities in the land, 
the entry by one coparcener into tiie whole, claiming it all and 
taking the rents and profits of the whole to herself, is no dis- 
seisin, or at any rate, if it is so at all, can only be at the elec- 
tion of the disseisee. There must be something more — ^there 
must be some plain, decisive, and unequivocal act or conduct 
on the part of the coparcener who enters, amounting to an ad- 
verse and wrongful possession in herself, and disseisin of her 
companion. Several cases of this kind are put by Lord Coke, 
and may be infinitely varied in each particular case. ** Thus,'' 
he says, "if both sisters had entered after the death of their 
father, and were seised, and then the eldest disseised the 
younger of her part, and was thereof seised in fee, and hath 
issue, the younger nor her heir can not enter: Co. Lit. 242. So 
if one coparcener enter claiming the whole, make a feoffinent in 
fee, and taketh back an estate to her and her heirs, and has 
issue and dies seised, this descent takes away the entry, be- 
cause by the feoffment the privity of the coparcenary is de- 
stroyed." That the same rule applies with equal force to joint 
tenant and tenants in common; viz., that the entry of one shall 



Sepi 1840.] Habt v. Obeoo. 169 

generally be taken as an entayfor his companion as well as him- 
iBelf y is ererywhere admitted. Children taking by descent under 
-our laws as statutory heirs, though they hold as tenants in com- 
mon, yet are in many respects in the nature of coparceners, and 
they take, like coparceners, by one and the same title; and there 
is a similar priyify of estate between them, to destroy which a 
•disseisin must be made by any one entering as heirs. 

The modem cases, generally speaking, haye conformed to the 
principles laid down by Littleton and Ooke. In BeoMn^s caae, 
1 Salk. 892, it is said that between tenants in common there must 
l)e an actual disseisin, as taming him out, hindering him to 
•enter, etc., and a bare perception of profits is not enough. In 
Ibdrclaim v. Schochleton,^ 5 Burr. 2604, it was decided, that a 
perception of profits by one tenant in common alone without 
^account is no actual ouster — ^&ere must be an actual difwuiflin 
proved. It is trae, that in Doe v. Prosser^ Gowp. 217, it is 
•commonly stated to have been held, that uninterrupted posses- 
sion by one tenant in common without account, and without 
.adverse claim for thirty-six years, was a bar to his companion; 
bat there the tenant in common held over in her own right, 
after a partition for the life of her husband, and Lord Mansfield 
puts the case on the ground of a holding over after the particu- 
lar estate was ended. Besides which, the jury found an actual 
-oaster by presumption from the facts proved. Peaceable v. 
Read, 1 East, 668, was a strong case; there a female tenant in 
-common died, after having made an appointment of her share. 
The other, claiTning under a later instrument, made when she 
was insane, levied a fine soon after her death, of the whole, and 
noeived all the rents and profits for nearly five yeara without 
•account. Tet this was held no ouster, and that some act to 
that eflEBct must be shovm. Such an act appeared in the case of 
Doe V. Birdf 11 East, 219,' where it was decided that one tenant 
in oonmion in possession claiming the whole, and denying pos- 
session to the other, is something beyond the mere receiving of 
rents, which is equivocal, and was evidence of an ouster. So 
in Lodge v. PaUerson, 8 Watts, 74 [27 Am. Dec. 835], the one 
brother put up the other's share at public vendue, and became 
the purchaser himself, and held and occupied for twenty-one 
years and more under it. 

It thus appears that if Oliver Ormsby had desired to disseise 
Ins brother and sister, or either of them, and gain the exclusive 
4Uid adverse possession for himself, it was easy for ^ityi to do so 

1. FMreUdm ▼. SkaekUUm, a. 11 Bast, 4B, 



170 Hart u Gbego. [Pencu 

by Tarions acts, of the design and effect of which, in point of 
law, there could have been no mistake. If he has not chosen 
to do so, we would not be obliged to impute to him, either while- 
living or now, since his decease, a tortious and unjust proceed- 
ing, which he himself declined to adopt. The law rather con- 
siders him as faithful to the interests of those so nearly related to 
him by blood, and as not willing to destroy the privity of estate 
existing among brothers and sisters, holding under a conmion 
parent, by inheritance. In the inequalities of age, and sepa- 
rations of residence, which continually occur among us, on the 
descent of lands of inheritance to all the children equally, it 
must often happen that one is placed in a position in which the- 
care and preservation of the common property is thrown upon 
him, and a duty imposed, as well by regard for deceased parents, 
as by those intimate ties and feelings that connect together one^ 
family, and this duty is often cheerfully encountered. To throw 
it off, to attempt to deprive those so near of their equal share- 
of the inheritance of their parent, is not a design which eveiy 
man would deem just and honorable, or desire to have imputed 
to him; for however it may have been in the earlier ages of the- 
English law, for reasons not now, perhaps, well understood, yet 
nowadays, titles gained from co-heirs by disseisin, are not much 
in accordance with our notions of justice and morals; especially 
among children of the same family as against each other. The 
law, therefore, recognizes one entering as co-heir or co-tenant» 
as bailiff, trustee, or receiver for the others: equity allows him 
all charges incurred in the care and reasonable improvement of 
the property for the common benefit, and the statute of Ann& 
gives the others an action of account render against him, for the 
share of the rents and profits which he ought to pay over. 

In looking at the case before us, we are at a loss to discover 
any act or course of conduct on the part of O. Orinsby, amount- 
ing in law to a disseisin of his brother and sister. He never 
turned them out, nor denied them possession. He never created 
a new title in himself or any .other person under which posses- 
sion was held. He never, in point of law, threw off the relation 
of brother and co-heir to assume the position of a stranger. Alt 
he did was to enter and keep the possession, lease the property, 
and receive the rents, erecting fences and buildings, adapted to- 
its cultivation and profit. He does not seem even to have 
claimed it as his own, though even that alone, though accom- 
panied with the receipt of the rents and profits, would not, ac- 
cording to many authorities, be an ouster. On the contrary, he- 



Sept 1840.] Blacemore v, Obego. 171 

took oat a patent in 1813, expressly in trust for himself and the 
other heirs of his &ther — and the lands were taxed in the name 
of the heirs until 1820. So far as we can judge of his intentions 
hj the evidence, there is nothing to justify the belief that he in- 
tended to daam or hold against his brother and sister: and even 
if there were, there is no evidence of any act or proceeding 
amounting to a disseisin of his brother John Ormsby, or his 
heir, under whom the plaintiffs claim. 

As to the other points raised in this case of the advancement 
and marriage, I refer to the opinion of the court delivered at this 
term, by Mr. Justice. Rogers, in the other Ormsby cases. There 
is nothing in the bill of exceptions. The defect in the evidence 
(if any existed) was cured by the production of the deed itself 
immediately afterwards. 

Judgment affirmed. 

BzfTaT AMD PosflnaioN or Go-txnaiit Dsxmxd Abvxbsx, whsn, aki> 
WHXN NOT. — ^The oases on that subject in this series are ooUeoted in the note 
to PAttitps V. Cfregg, aaUe^ 158. As to what constitates adverse possession by 
one tenant in oommon against his oo-tenants, the principal case is xeoogniaed 
as authority in HaU v. Maih/iaB^ 4 Watts ft S. 336; Blackmart ▼. Oregg^ 2 Id. 
189; and DicMj v. Campan, 28 Mich. 324. In BoUtm v. BamUton, 2 Watta 
k S. 299, and Calhoun v. Cooh^ 9 Pa. St. 227, the dictum in Htui v. Qftgg, 
that peroeption of the profits by one tenant in common, accompanied by an 
exclusive claim of rights is not sufficient to make bis possession adverse t» 
co-tenants, is rsfonred to as being contrary to previously adjudged casss^ and 



Blaokmobe i;. Gbeoo. 

(10 WATn» 999.] 

Bab ov Two Yxbdiots nr Ejbctmsnt is Statutobt Ebiofpbl which aflbcto 
only parties and privies. 

Obahtob An) O&ASTEX ABB Pkevibi nr BsTATB only as to acts done or 
suffored by the former before conveyance. 

Verdict and JunoMmr abe kot Ck>N0LU8ivB as to matters Incidentally 
brought in question. 

Vkbdiot and Judomkmt in Ejeotmxnt vob Plaintitf who has Oonvbted 
the land to another after action brought, and who, upon that fact being 
shown, recovers only his damages and costs, wiU not affsct the title, and 
will not, in conjunstion with a prior recovery in ejectment by the same 
plitlntiflr against the same defendant, conclude the latter in a subsequent 
ejectment brought against him by the plaintiff's grantee. 

Ebbob to Allegheny county district court, in an action of 
ejectment. The plaintiffs, in addition to other proofs of title» 
gave in evidence the records of two recoveries in actions of eject* 



172 Blackmobe t;. Greqo [Penn, 

ment heretofore brought by the plaintiffs' grantors against those 
under whom the defendants were tenants, for the same land. 
In the first action, brought in the United States district ooort, 
the plaintiffs' grantors had verdict and judgment, and the de- 
fendants sued out a writ of error to the United States supreme 
•court, but afterwards abandoned it. The plaintiffs* grantors 
afterwards brought another ejectment against the defendants for 
the same land, in the Allegheny county district court. The de- 
fendants, howeyer, after the plaintiffs had produced their evi- 
dence of title, proved that after the action was brought they, 
the plaintiffs in that action, had conveyed the land to the pres- 
ent plaintiffs. The jury, therefore, under ihe direction of the 
«ourt, found a verdict in favor of the plaintidb in that action for 
nominal damages and costs only, and judgment was entered on 
that verdict. In the present action, the court below, on the pro- 
duction of the records of the two prior recoveries, instructed the 
jury that the two verdicts and judgments so recovered were con- 
elusive as to the title in favor of the plaintiffs. Verdict atid 
judgment for the plaintiffs accordingly, and the defendants 
brought this writ of error, assigning error in the instructions. 

Dunlop, for the plaintiffs in error. 

UcCandJesa and Forward, tot the defendants in error. 

By Ck>urt, Gibson, G. J. The bar of two verdicts in ejectment 
is a statutory estoppel; and estoppels have effect only between 
parties and privies. The statute does not, indeed, expressly re- 
quire the two verdicts to have been betwixt those who stood in 
that relation to the parties to be affected; but it would be mon- 
strous to doubt that such was the intent. Statutes are to be in- 
terpreted as near as may be to the principles of the common law, 
especially in respect to matters which it may have been thought 
unnecessary to specify in detail; and it would have evinced a 
ridiciQous attention to minxdicB, had it been specially provided 
that a title should be impaired or affected by a verdict between 
one of the parties and a stranger. Now, though grantors and 
grantees are privies in estate so far as regards acts suffered or 
done at the time of the conveyance, it is fallacious to pretend 
they are such as to acts suffered or done afterwards. Every 
vendee takes the title subject to the consequences of his prede- 
cessor's acts during his seisin; but that it is not to be affected by 
a verdict against him, or by any act done by him afterwards, 
seems almost too clear for argument. On tiie principle of priv- 
ity as to future acts,a vendor might charge the land in the hands 



Sept 1840.] Blacemobe v. OBEoa 17& 



of the Tondee bj sufiSaring a judgment in debt; and if it be coia- 
oededy as it must, that he may not, I am unable to understand 
how he may burden it with the consequences of an unsuccessful 
Terdioty in an ejectment prosecuted at will for damages and 
costs. Ought not the remote, as well as the proximate, conse- 
quences of such an action to be exdusively at his risk ? What 
fleems oondusiTe of the aiBrmatiYe is, that if the vendor's action 
on the title were treated as the action also of the vendee, ii 
would preclude the vendee from suing for the possession till ii 
were determined; for its pendency would be a sure ground ta 
stay proceedingB in an action brought by him; or, now that the- 
parties are the same, the vendor's action might, perhaps, be 
pleaded in abatement of it. But as the vendee could derive na 
advantage from a verdict which would not serve to put him in 
poeseflsion, it would be unjust to make him wait the vendor'^ 
torn, and perhaps till the statute of limitations had closed upon 
the titie — a consequence which no recovexy of damages by th» 
vendor could postpone or avoid. Yet the court would be bound 
to stay proceedings or entertain a plea in abatement if the ven- 
dor and vendee were deemed to be embarked in the same bottom; 
otherwise, as a verdict against the one might bar the other, there- 
would be a scuffle betwixt them for priority of trial. But if the^ 
court, in the exercise of its judicial discretion, should refuse to 
stay proceedings, it could be justified only on the principle, that 
the vendor's action is not the action of tiie vendee: a principle 
Jhat would make short work with the argument; for it would 
bring death to it to admit that they do not constitute one party. 

I take it then to be clear, that the present defendants would not 
have been entitied to count the verdict as a point, in the game- 
with the plaintiffs, had it been in their favor. 

Again. What is an ejectment pending after the plaintiff ha» 
parted with his title? It is a proceeding which has shrunk, in 
substance, into what the primitive ejectment was in form- -an 
action of trespass to recover damages and costs for an ouster, 
in which the title is tried, in subservience of the end, only in* 
ddentally. Now it was ruled in the Duchess of Kingston's case^ 

II St. Tr. 261, and has been held for an elementary principle 
ever since, that the judgment of a court, even of exclusife 
jurisdiction, is inconclusive of a matter thus brought into ques- 
tion; and it surely was not the purpose of the legislature to give 
conclusive effect to two verdicts where a single one would not 
have had it in an ejectment, stripped of the fiction which. 
afterwards deprived it of the conclusive qualities of a recovery ,. 



174 Blackmobe v. Oreoq. [P< 



in a writ of entrj or a writ of right. In its origin, ejectment 
was a simple action of trespass, by which neither possession nor 
compensation for mesne profits was demanded; and it conse- 
quently might have been brought -when the title had been con- 
veyed. Indeed, as damages for the supposed ouster are held to 
be a substantive and distinct cause of action at this day, I see 
not why an ejectment might not be brought for it still; nor, if 
it were to have the incidental consequences of an action to re- 
cover the possession, do I see why it might not be repeated, 
toties quotiea, till it had undone the title in the vendee's hands, 
though it were free from defect when he purchased it. If a 
single verdict would not be conclusive against the vendee, it 
would not be conclusive against the vendor. 

It is idle to say the vendor is allowed to prosecute his pending 
ejectment, only for the costs already incurred in it. There is no 
recovery of costs in any case independent of a substantively and 
distinctly existing cause of action; for it is the recovery of dam- 
ages which, under the statute of Gloucester, entitles a plaintiff 
to costs. A vendor who has conveyed after action brought, 
eould claim to go for costs, per se, with no better grace than 
could a plaintiff who had indorsed his negotiable note after 
action brought on it, and thus attempted to subject the maker 
to the costs of repeated actions. It is for necessary damages 
suffered from the ouster, that such a vendor goes. On the hy- 
pothesis of the argument, then, he might repeat his action till 
he had drawn down upon the title two adverse verdicts and 
judgments in the han^s of the vendee. If it be said that the 
vendee takes the land voluntarily, and therefore subject to the 
risk of that, what would be said of a purchaser under his own 
judgment who takes it to protect his lien ? Under the primitive 
form of the action, it would have shocked the general sense to 
pretend, that his debtor still retained a power to affect the title 
by an action on it. And in what respect has the vendee's 
ownership been jeoparded by the form devised to let in a re- 
covery of the land ? 

Take it that a defendant in ejectment had set up, in bar of all 
but damages, the plaintiff's conveyance to a third person, which, 
however, was determined to be a forgery — it would not be pre- 
tended, that the verdict in such an action might be admitted as 
evidence in an action by the vendee against the vendor. It 
would be decisive of its incompetency, that the vendee's title 
had been repudiated in an action to which he was neither party 
nor privy, and in which he could not have been received to pro- 



Sept 1840.] Blackmobe u Obeog. 175 

dace proofs or cross-examine. Thus it stood at the enactment 
of the statate in 1807; and is it to be supposed, that the com- 
mon law principle of privify was intended to be changed by it, 
or that two Terdicts should be^condusiTe of matters adjudicated 
inddentalljy as the title is where the land itself is not demanded, 
but damages for a trespass done to it? In abolishing the fiction 
which alone had prerented the Terdiot from being conclusive, 
the l^iialature did not choose entirely to restore the conclusive- 
ness of the judgment under the original form of the action; and 
it certainly was not intended to give a wider sweep to two ver- 
dicts, than had been allowed to one: for the power to bar the 
title by two, was not in furtherance of the common law prin- 
ciple of oondusiveness, but in restraint of it. By the interpre- 
tation pressed upon us, the vendee's title might be destroyed 
without his partidpation, by a single verdict in an action for 
damages, prosecuted after failure in an action for the possession. 
That injustice might doubtless be done, did not the common 
law principles already invoked, come in to mitigate the rigor of 
a literal construction, by declaring that a vendee stands in priv- 
ity to his vendor only in respect to acts suffered or done before 
the title was conveyed; and by declaring also that between even 
parties and privies, a judgment is condusive only of those things 
which were directly adjudicated. If the vendee's land were 
affected by an unsuccesirful verdict in the vendor's ejectment, I 
know not why it might not as well be bound by a judgment in 
debt against him, pending also at the time of the conveyance. 
Such a judgment ought to go as far to bind the land, as an ad- 
verse verdict in ejectment ought to go to affect the cause of 
action. Here, the attempt is to make it affect more than the 
cause of action, by extending its effect from the damages which 
were sought to be recovered, to the land which was not« Surely 
the vendee is not to be prejudiced by the result of an enterprise 
attempted by the vendor for his peculiar benefit; for what mat- 
ters it that his title to damages was identical with the vendee's 
title to the land? Though springing from a common root, the 
causes of action afforded by it are different and distinct. 

The rule perhaps is universal, that he who stands not in priv- 
ity, and has ndther day in court nor right to be made a party, 
is not to be prejudiced by the judgment; and it will not be dis- 
puted that he who could not have been prejudiced by it shall not 
have advantage from it. The prindple is text law. And there 
was no design to change it; for though a verdict in an ejectment 
prosecuted only for damages, may be within the letter of the 



176 Watson v. GBEoa [P( 



enactment, it surely ne^er was intended to aiEdot the title of one- 
who had no agency in producing it. The case in view was the- 
ordinary one — ^that of a title tried in a contest for the possessioa 
and made a subject of diceci adjudication; for had the occur- 
rence of a case like the present been foreseen, it would doubt- 
less have been excepted; and we but cany out the spirit of the* 
statute in malring it an exception by implication. 
Judgment reversed and a venire de novo awarded. 



JuDOMBun, OoKOLUMV s maB or: See Skumer ▼. Moon, 80 Am. Deo. IM^ 

and caeee died in the note thereto. 

PLAXKTifv nr EnBonoNT must Rsodtsb on Trui held at the eoimnenoe> 
ment of the action ae it stands at the time of trial: AUm ▼• Otwrn^ 18 Ba. 8L 
386, eiting Blaekmore ▼. Gregg. 



Watbok v. Gbeoo. 

[10 WATHb 989.] 

Gaumm'a BmntT aftxr Conyetauci must be Dbud Asanas «o cbb 
GaAMTn where there is no eTidence that he entered for or nnder hmi, bat 
where he aoted in all raspeots as the sole owner and olaimant^ making 
leases, receiving rents, paying taxes, hnproying the pr u p e ciy, etc, snd 
auntermpted enjoyment for twenty-one years will give him a oomplste 
title. 

TrtLE OB Color or Titlb is UifvxGBasABT to oonstitate an advene posies 
don nnder the statnte of limitations. 

Bhtbt and Po88B8Sioir BT Onb ov Sbtbbal Hbibs of a person dying in 
adverse possession of land innre to the benefit of himself and all the co- 
heirs, and the adverse possession is thereby oontinned for the pnrpoee of 
gaining title. 

Heib oan not Oust his Go-hbdis, so as to gain title to himself, in land 
descending to them, npon which he has entered, without some dear, 
positive, and nneqnivodal act amounting to an open denial of their right. 

Pebosption or Rbhts and Pbojits bt Onb Oo-hbib in possession of land of 
the ancestor Ib not sufficient to raise a preenmption of an ouster of the 
other heirs. 

Admissions as to OuTSTANDiNa Titlb bt onb Co-hbib in possession of land 
held adversely by the ancestor at his death do nota£fect the rights of the 
other heirs, where tiiere is no yielding of posiiossion, or attomoMBt to, or 
communication with, the holder of such outstanding title. 

Dbed fbom Pebsons Cladcino to bb Hbibs of a former owner of land is not 
admissible in evidence without proof that they are heirs. 

Ebbob to Allegheny counfy distriot oourt in an action of eject- 
ment brought by Sidney Gregg for an undiTided one third part 
of certain land claimed by her as one of the children and heirs 



Sept 1840.] Watson v. Gbego. 177 

of John Ormsby, deceased. One of the defendants daimed as 
tenant tinder the heirs of OliTer Ormsby, deceased, the said 
Oliver being also one of the children and heirs of John Ormsby . 
The other defendant claimed under conveyances from the alleged 
heirs of one Lamb and one Oheckly. It appeared that in 1788 
John Ormsby conveyed the land to Lamb and Checkly by a deed 
which was duly recorded. But neither the grantees nor their 
heirSy as it appeared, had ever exercised any acts of ownership 
over the land or laid any claim to it after recording their deed, 
for upwards of fifty years, the said grantees having left that part 
of the oountiy shortly after 1788. It appeared that in 1790 
John Ormsby entered on the land, claiming it as his own, and 
continued in possession personally or by his tenants until his 
death in 1805; that he acted in all respects as owner, malring 
leases, collecting rents, paying taxes, etc. ; that after his death 
his son and administrator continued his possession, exerdsing 
like acts of ownership on behalf of the estate; that prior to 
1820 the said Oliver had the property assessed to his father's 
estate, and charged the heirs with the taxes paid and the farming 
expenses, etc., but that after 1820 he had it assessed to himself. 
A number of admissions on the part of the said Oliver were 
proven, to the effect that the property did not belong to his 
father's estate and it was not worth while to improve it; that 
his father had sold it long before his death, and that he did not 
know what moment the owners might come for it, but whenever 
they did come they could have it. On the part of one of the 
defendants, deeds were produced from certain persons stated to 
be the heirs of Lamb, but on objectionbytheplaintiff they were 
rejected for want of evidence that the persons named were the 
heirs of Lamb. The defendants excepted. The court left it to 
the jury to determine whether or not the entiy and possession 
of John Ormsby as continued by his son were adverse to Lamb 
and Checkly, his grantees, instructing them, among other 
things, that such entiy and possession were adverse if he in- 
tended to oust his grantees; that a disseisor must be presumed 
to have entered for himself until the contrary appeared, and 
that the jury had no right to conjecture an intent contrary to 
the notorious acts of the party; that a claim of right or color of 
title was unnecessazy to found an adverse possession; that the 
admissions of Oliver Ormsby could have no retrospective effect, 
BO as to change the nature of his other's entzy, if originally ad 
verse; that the entiy and possession of the said Oliver inured to 
the benefit of his co-heirs as weU as of himself; and finally that, 

Av. Dbo. Vox.. XXXVZ— 12 



178 Watson v. Obego. (Tena 

in the opinion of the court, there was nothing in the evidence 
to prevent a verdict for the plaintiff. These and other points 
in the charge, not necessaiy to be noticed, were, after verdict 
and judgment for the plaintiff, assigned by the defendants as 
errors. 

Dufdop, for the plaintiffs in error. 

McCandless^ for the defendant in error. 

By Court, SsaaBAin?, J. The principal error relied on in this 
case is in the charge of the court, but we think the complaint of 
the defendant is without foundation. The entry of John Qrmsby 
must be taken to have been adverse to the title of Lamb and 
Checkly, in the absence of any sort of evidence that he entered 
for them, or held under them. He acted, in all respects, as the 
sole owner and claimant of the inheritance, making leases, re- 
ceiving rents, paying taxes, and preserving and improving the 
property. He had no title, or color of title, that we know of. 
He was merely a trespasser, but such an occupant as by otir law 
gains a complete title by disseisin, after an uninterrupted enjoy- 
ment for twenty-one years: Pipher v. Lodge, 4 Serg. & B. 310, 
and 16 Id. 214. On his death, his son, Oliver Ormsby, entered 
and held, not in his own right, but jure repreaentaHonis, as one 
of the sons and heirs of his father, and as tenant in common 
with the other heirs. By so doing he preserved the daim or 
initial title, such as it was, of the whole of the heirs, and as 
much for their benefit as for his own. For it has long been a 
settled principle, that the entiy and possession of one coparcener, 
joint tenant, or tenant in common, into lands, is the entry and 
possession of the others, whether it be, on the one hand, to pre- 
vent the statute of limitations running against them in his &vor, 
or, on the other, to preserve and perpetuate their rights as 
possessors, and to gain a title thereby. The heir who enters is 
considered as doing so for himself, as regards his own right, 
and as trustee for the others, and accountable to them for their 
portion of the rents and profits received by him, during the time 
he so holds the lands. It is in consequence of this sort of fidu- 
ciary relation in which he is placed, as to the others, that he is 
not ordinarily allowed to claim for himself an interest opposite 
to that of the others, but his acts are treated as theirs, and for 
their common benefit. He may, it is true, oust the other heirs, 
and gain the title for himself; but this must be by some clear, 
positive, and unequivocal act, amounting to an open denial of 
their right, and putting them out of the seisin. Such ouster 



Sepi 1840.] Watson v. Obego. 179 

will not be presumed merely from his taking the rents and profits 
{unless after a lapse of a yeiy great length of time), but must 
be proved by decisiye acts of a hostile character: Lodge v. Pat- 
ienan, 3 Watts. 74 [27 Am. Dec. 335] ; F(yrd t. Orey, 1 Salk. 
285; Synale^ v. Dale, Hob. 120; Fisher v. Prasser, Ck)wp. 218; 
Fairclaim v. ShackleUm, 2 W. Bl. 2620;' Burr. 2604; do. Lit. 
242 a, b; 1 East, 668.' 

It can not be pretended here, that Oliver Ormsby ever thus 
ousted the other heirs. On the contrary, he recognized his dufy 
to them by holding the possession, taking care of it, receiving 
the rents, making leases, paying taxes and other expenses, and 
charging the estate in his accounts with their proportion of his 
disbursements. It would require much stronger facts than any 
here shown, to establish, that he at anytime divested the rights 
of the other heirs, and to enable him to claim the whole for him- 
self, or to admit an outstanding title in a third person as against 
them. There is nothing to warrant the idea that he ousted the 
other heirs; and as to the title of Lamb and Oheckly, he never 
yielded up the possession to them, or attorned to them as their 
tenant, or had any intercourse or communication with them, nor 
had ha, or any of the other heirs, any knowledge of them. All 
that is shown is, that at different times, he stated to these per- 
sons, that there was an outstanding title of some kind, which 
might, at a future day, be asserted for the land. This could not 
affect the possession taken and held by his father, John Ormsby, 
and cast upon his children by descent, which Oliver continued 
and carried on by his possession: and in fact, in legal operation, 
as against their rights, amounted to nothing. The court was, 
we think, right in saying, that the statute would run in favor of 
the heirs, if Oliver Ormsby continued the possession, received 
the rents, and paid the taxes, though he knew and admitted that 
there was a better title to the land, and expressed his belief of 
its appearing one day. 

In regard to the bill of exceptions, we see no error in the re- 
jection of the depositions by the court. The question was not 
of identity, that is, whether the persons now suing are the same 
as those who executed the powers of attorney: but whether cer- 
tain persons claiming as heirs, and executing conveyances to the 
defendant, on which he sets up a title, must not be proved by 
eridence of some sort or other, to be such heirs, before the con« 
veyances can be read: and it is dear they must. 

Judgment afBrmed. 

J. 2 W. Bl. eW: 8. a, 5 Bur. 2604. % PmueabUf, Re&4, 



180 Hainss v. O'Conneb. [Pena 

OoLOK or TiTLB, What is, and Nicessttt of to Sofpobt Advsbss Pos- 
nssiON: See the notes to TcUe ▼. Scuthard^ 14 Am. Dec 580, and Ferguaon v. 
Kemiiedff, Id. 764. See also La Firmbois v. JouAwti^ 18 Id. 463; RUey r. 
Jameson, 14 Id. 326; Bung ▼. 8hand>erger, 26 Id. 95, and cases cited in 1 he 
note thereto. The principal case is cited on this point in Woodward ▼. Bla»»ek' 
ard, 16 HI. 434. 

Entbt Aia> PoesBSSioN by Co-txnaut when Dskmxd Adverse: See note 
to PhUUpa y, Chtgg, ante, collecting the cases in this series on that sabjeotL 
Hie doctrine of WaUon ▼. Oregg on this point is approved in HaU ▼. MaMaa^ 
4 Watts A( & 337. 



Haines v. O'Gohineb. 

[10 Watzs, 813.] 
POBCBASEB AT SHERIW'S SaLB WILL NOT BE DbOLABBD TbUSTBB IoT the 

debtor where he has paid the porchase money, and is gailty of no tend, 
merely upon proof of a parol agreement on Ids part to pnichaae the land 
for the debtor, snch an agreement being within the statate of fraods. 

Ebbob to Allegheny counfy district court, in an action of eject- 
ment for a certain lot of ground. It was admitted that the 
plaintiff was the original owner. The defendant claimed under 
a devise from her father, and proved that her father, Dominick 
(yOonner, purchased the land in 1823, at an execution sale on 
a judgment recovered against the plaintiff. The plaintiff, how- 
ever, contended that the purchase was made for his benefit, and 
that O'Oonner was merely a trustee for him; and introduced evi- 
dence tending to show that, at the time of the sale, O'Oonner 
stated to other bidders that he was bidding in the land for 
Haines, the execution debtor; that bjhis representations in that 
particular he induced other persons to refrain from bidding, and 
was thereby enabled to purchase the land at a price below its 
real value; and that he afterwards repeatedly stated that he had 
purchased the land for Haines, and that when the latter paid him 
what he paid for it he should have it, and that he had refused 
to sell it to others on that ground. There was evidence, on the 
other hand, offered by the defendant, tending to show that 
O'Oonner made the purchase for himself, but that he afterwards 
stated that if Haines would pay him the amount of his bid and 
certain other money that he owed him, he might have the prop- 
extj. The defendant's witnesses also testified that the price 
paid by (yOonner was fully equal to that paid for similar prop- 
erty at forced sales about the same time. The court instructed 
the jury, among other things, that if O'Oonner purchased the 
property vnth his own money, expressing an intention to let 



Sept 1840.] Haines v. O'Conner. 181 

Haines have it upon his repaying the amount paid for it, and if 
he bought it fairlj as the highest and best bidder, and afterwards 
frequentlj expressed his willingness to let Haines haTe it on 
those terms, which offers were not accepted by Haines or his 
friends, the case was not one which would be treated as raising a 
trust ex maleficio, but was within the statute of frauds; and 
further, that O'Oonner could not be declared a trustee except 
upon proof of fraud or artifice practiced by him at the sale, 
to the injury of Haines and his creditors. Verdict and judg- 
ment for the defendant, and the plaintiff sued out this writ, as- 
signing error in the instructions. 

Sfialer, tor the plaintiff in error. 

Forward, for the defendant in error. 

By Court, Bookbs, J. If the case of Brown ▼. Dysinger, 1^ 
Bawle, 408, has been understood to have ruled, ** that if I pro- 
daim that I hold my house for B., on terms of conveying it to 
him when he shall reimburse me what I have paid, it is a trust 
which vnll be enforced;'' it arises from a misapprehension of 
what was intended to be decided. A contrary doctrine is tauglit 
in Kepler v. Kepler,^ 2 Watts, 327, and in the recent case of 
Bobertsan v. Bohertson, 9 Id. 42. In the latter case it is ruled, 
that although in all cases of fraud, and where the transaction in 
relation to the purchase of land has been carried on mala fide, 
there is a resulting trust by operation of law, yet unless there is 
something in the transaction more than is implied from the 
mere violation of a parol agreement, equify will not decree the 
purchaser to be a trustee. A purchaser at a sheriff's sale, who 
has paid the money, can only be held a trustee ex rrudeficio, on 
the ground of fraud; and where he is guilty of fraud, he is a 
trustee for the creditors and for the debtor also, unless the 
debtor be particeps criminis. But without the ingredient of 
fraud, as in the case of private sales, he may avail himself of the 
protection of the statute of frauds. There is nothing in the 
charge which contravenes these principles. The law is well 
stated, and the case has been properly left to the jury, under 
aU the facts, with a proper direction; there is nothing, there- 
fore, of which the plaintiff in error can complain. We must be 
careful to avoid unsettling titles to real estate, upon parol proof 
of bargains made a long time since, particularly where the prop- 
erty has greatly increased in value, or where it has passed into 
other hands. If the court should yield to such claims, it is im- 

1. KiOtt ▼. Kiiitt ; S. C. 97 Am. Deo. 80a 



182 EiEKPATRiCK i;. Black. [Pemi. 

possible to foresee where the mischief will end, from the ease 
with which such testimony can be procured, tempted as they 
will be by the chances of receiving large estates, on proof of 
such agreements. If a parol contract for the conveyance of land 
has been violated, the party has his reme^ by action, when he 
recover the damages he has actually sustained. 
Judgment a£Bzmed. 



PiBsoN AoQunuHG Tetui bt Vbjjjd d TBossn voB THE lajumBk 
Pabtt: OoUmem ▼. Ooek^ 18 Am. Deo. 757. 

RffTABUHHDro Tbubt BT Pabol: See Steen ▼. iStoflrs, 9 Am. Dea 256;. 
Cfermanv. 0<Mald,61d. 372; BlakeY. Jtmu, 21 Id. 580; /odbmiv. ililfar. 
Id. 316; ma$y. EUot, 7 Id. 26; BniMitg ▼. CTiMertadb, 4 Id. 661; WaOoMw. 
Ih^pM, 7 Id. 660; Priiekard ▼. Bfwon, 17 Id. 431; TmoUt v. BurUm, 2411 
409, and note; Hoge ▼. ffoffe^ 26 Id. 52, ukd note. A written acknowledg- 
ment^ made without oonaidenition, tbat another ia entitled to property in 
one'a poaaeaaion ia not anffident to create a tmst: TkompMn ▼. Bran/ch^ 34 
Id. 153. In JUoyti v. Carter, 17 Pa. St 221, and Freeman ▼. lireemaH, 2 
Pan. SeL Oaa. 89, the caaeof ffainea ▼. O'Cknmer ia referred to aa reoogniam^ 
the doctrine that a tmst may be eatabliahed by parol in Pennsylyania. Bnt 
a mere declaration that one ia aboat to pnrohaae land for another without any 
previooa arxmngement or anffident conaideration ia not enoogh: BtyhMer v. 
(Ktaon, 18 Pa. St. 137. Nor will equity declare a pnrchaaer of land a ^roatee 
for another, who haa not paid the pnrohaae mdney, where there la notiiing 
more in the tranaaotion than a aimple violation of a parol agreement; but the 
party will be left to hia remedy at law: Ffix ▼. Htffntr^ 1 Watta ft S. 376;. 
JachmoH v. Einffiamd^ 4 Id. 150. In all theae caaea Hamee ▼. (yOatmer ia 
dted aa authority. Fxb v. H^fker waa ahnoat identically the aame kind of 
a caae. In MeOvUoeh ▼. Cowper, 5 Watta ft & 431, Woodward, J., in the 
court below, quotea with approval the language of Mr. Juatioe Eogen ift 
ffolnea v. (yOomier aa to the danger of unaettling titlea by admitting proof 
af pard bargaina. 



EncKPAXBiOK V. Blloel 

[10WAm,829.] 

SHKBnr LEvmro Bxxoutioh is Bbgakded as Tukumai^s Aobht, i» 
aome degree, ao far aa he does not exceed the mandate of hia writ; ea- 
pedaUy in caae of a levy on realty. 

Gbbditob Pboourino Lbvt on Entzbb Tbact, of which he ia part owner 
in conjunction with hia debtor under an agreement wherelqr the latter, 
for a share in the hind, is to make settlement upon the whole tract, and 
the former to procure title from the state, and to pay the purchaae money, 
forfdts his rights as against a pnrchaaer under the ezeoutian, and auch 
purchaser obtains a good title. So notwithstanding aome eridenoe thai- 
he knew of the agreement. 

Ebbob to Butler counfy common pleas in an action of eject* 
ment for a tract of four hundred acres of land claimed by the 



Sept. 1840.] EiBKPATBicK V. Black. 183 

plaintiflh as heirs of John Eirkpairick, deceased, and bj fhe de- 
fendant as a purchaser on an execution issoed on a judgment 
recoTered bj the said Eirkpatrick against one Jarvis. It was 
proved by the phiintiffs that in 1797 an agreement was entered 
into between Eirkpatrick and Jarvis, whereby Jarvis covenanted 
to make the settlement and improvements required by law on 
the tract in controvere^, while Eirkpatrick covenanted to pro- 
cure the title and pay the purchase money and patenting fees, 
Jarvis to have, for making tiie settlement, one hundred acres of 
the land. It was also proved that Jarvis made settlement and 
commenced improvements as stipulated by the contract. In 
1811, on a judgment previously recovered by Eirkpatrick against 
Jarvis, an alias test. JL fa. was issued to Butler county and 
levied on the whole tract as the property of Jarvis, and at the 
sale the present defendant became the purchaser. The plaini- 
ifb tendered to the defendant the amount of the expenses and 
patenting money, claiming that the defendant stood in the shoes 
of Jarvis. It appeared that some time after the sale, the de- 
fendant said that he knew there was an agreement between 
Eirkpatrick and Jarvis relating to the land, but that he bought 
the whole tract, and so considered at the time of his purchase. 
It appeared, also, that the defendant made additional improve- 
ments on the land, and had procured a patent from the state for 
the whole tract. The plaintiffs asked instructions to the effect 
that the defendant by his purchase got only Jarvis' title, and 
took the land subject to equities in favor of Eirkpatrick, espe- 
cially if he knew of the agreement. The court, however, in- 
structed the jury, in substance, that if Eirkpatrick, under his 
judgment, had levied on and sold the whole tract as the proi>erty 
of Jarvis, and the defendant made the purchase and entered on 
the land without any notice from the terms of the levy or sale 
that Eirkpatrick claimed any part of it, and had resided on it for 
twenty years, and made valuable improvements, it would be in- 
equitable and unjust for the plaintiffs to recover; and that the 
defendant's knowledge of the arrangement between Eirkpatrick 
and Jarvis was not the same as if Eirkpatrick had given him 
notice that he was merely levying upon and selling Jarvis' in- 
terest, aDd that after twenty years' possession and improvement 
of the land by the defendant, under the belief that he had 
bought the whole tract, the plaintiffs were not entitled to re- 
recover. Verdict and judgment for the defendant, and the 
plaintiffs sued out this writ assigning error in the instructions. 

Shaler, for the plaintiffs in error. 



184 EntKPATBiCK V. Black. [PeniL 

Punrianoe, for the defendant in error. 

fij Oonrty G1B8OH, 0. J. When not tninBcending the man- 



date of his writ, the sheriff may be considered in some degree 
as the creditor's agent. Thus, payment to him on the foot of a 
fieri faoiaa, discharges the debt, though the command is to get 
the money only by a sale of the debtor's goods; and the credit- 
or's farther recourse is to the sheriff. As to levy, time, phioe, 
and circumstances, the doing of execution is generally under 
the superintendence of the judgment creditor; and the sheriff 
acts, in these matters, so invariably by direction of the attorney, 
that in whatever involves an exercise of discretion based on a 
knowledge of particular facts, a presumption may be said to 
arise from the usual and natural course of such transactions, 
that he acted in conformify to the creditor's wishes. In par- 
ticular cases, however, such as those of conflicting executions 
in his hands at the same time, he acts at his peril and of his 
own head. But in respect to no partictilar of his duty, does 
the presumption of special instruction arise vrith greater force, 
than in respect to a levy of land. The sheriff usually knows 
absolutely nothing about the description and quantity, or about 
the title; and he returns his levy according to the fitcte given to 
him by the person who sued out the execution. The creditor is 
the controller of it; he applies it in the way most conducive to 
his interest; the sheriff is bound to respect his instructions; 
and is not the sheriff's act, done pursuant to his command, also 
his act? The conclusion will not be disputed, if the &ct of in- 
struction be conceded; but it may be said that the presumption 
of it, being a natural one and going for just what it is worth in 
the estimation of a jury, is not a ground of legal inference. 
Granted. But if the judgment creditor has caused his own 
land to be levied and sold, even by inadvertence, who ought to 
bear the consequences of it? Evidentiy he whose act, however 
unintentionally, occasioned it, and it is impossible to say the 
efficient cause of the mischief, in this instance, was not the act 
of him who sustained the double character of execution cred- 
itor and part owner. His debtor was in the ostensible posses- 
sion of a tract of four hundred acres — ^the statutory allowance 
of one who settles for his own use — ^but beneficially entitied 
only to a fourth of it, for having performed the condition of 
setUement for the creditor as a warrantee. 

Now the whole of this tract -was levied on as the absolute 
property of the debtor; and to prevent misconception from a 
measure so fraught with it, it was the duly of the creditor, in« 



fiept 1840.] North Canal Street Boad. 185 

formed as he was of the circmuBtanceSy to furnish the sheriff 
-with a particular description of the interest directed to be levied. 
It will not be said the sheriff might have disregarded an order 
to insert it. Had he done so, the court would have set aside the 
levy; and for the same reason the creditor ought to have had the 
error of the sheriff, if his it was, corrected in this instance; in- 
stead of which he did the yeiy reyerse. On the basis of a de- 
<»ptiTe levy, whose falsehood stared him in the face, he sued out 
^ vendiHoni eacponas, and thus, whatever it was originallj, made 
the act of the sheriff his own. Thus proceeding on a levy of 
the whole tract, and knowing, as he did, the debtor to be en- 
titled only to a part of it, he was guilty of a constructive fraud 
depending, not on a natural presumption, but on facts of record 
whose legal consequences are determinable by the court: and 
what is the difference between such a judgment creditor and a 
by-stander who conceals his title ? The one is present at the 
instant of the sale; the other, with knowledge of the erroneous 
pretension on which it is based, urges it on; but each is passive 
when he ought to act, and each is to be postponed to a pur- 
chaser who would else be a loser by another's supineness. On 
that head, the direction was entirdy proper; nor in regard to 
the purchaser's supposed knowledge of the truth of the case, 
was it less so. The creditor might have had his motives for let- 
ting the whole be sold together; and it was not the purchaser's 
business to inquire into them; he had no reason to suppose the 
creditor would else be so improvident as to propose a sale of his 
own estate. Such a sale, however, he did propose; and the pur- 
chaser, having the assurance of the levy and venditioni that such 
was the fact, might securely bid to the value. 
Judgment aflSrmed. 

Shbbhv how vab Aoxnt ov Plaintitv in Exeoittion: See Sinu v. Camp- 
6eS, 16 Am. Deo. 505. The Bheriff is, it seeniB, for some porposes the agenfe 
of the pnrohaaer at an execution sale: Fcur v. Sims, 24 Id. 306. 



NoBTH Canal Stbeet Road. 

[10 Watts, 861.] 
Ama Bkpbal or Statutk Gontebkino JuRisDionoN on a partionlar tri- 
banal in road matters, its confirmation of a viewer's report in favor of a 
road previonsly petitioned for is void. 

CsBnosABi to the Allegheny county quarter sessions. The 
ijneBtion was as to the validity of a confirmation of a report of 



186 B'k of PrrrsBUBOH u Whitehead. [Peniu 

reviewers in favor of the laying out of a certain road. The pro* 
ceedings were pending at the time of the passage of the act 
transferring the jurisdiction of the quarter sessions in such 
cases to the councils of Allegheny dfy, and the report was con* 
firmed after that statute was enacted. 

McCandless and Metcalfe for the plaintiffs in error. 

Loimrie, for the defendant in ezror. 

By CouBT. Acts entirely done under a statute while it was in 
force, stand good after its repeal. But before these proceedings 
were completed, the statutory jurisdiction of the quarter sessions 
had been transferred to the councils of the dfy, by the twelfth 
section of the act of incorporation; and by the transfer, every 
thing done was made void. The sessions therefore ought to 
have arrested the proceeding. Order of the sessions reversed, 
and proceedings quashed. 

BbPBAL of STATtTTE, EmCT Of OV PBOCXIDDrGS FWKimiQ TSMBMOmSSBl 

See AbboU v. CammomoeaUh, 84 Am. Deo. 492, and oases cited in the note 
thereta Eepeal of a statute oonferring joriBdiotion apon a ooort in partica- 
lar cases deprives it of the right to pronounce jadgment in a proceeding then 
pending: Todd v. Landry^ 12 Id. 479. In New London etc, B, E» Co. v. 
Boeton etc. B, B, Co,, 102 Mass. 390, Mr. Justice Gray quotes with approval 
the opinion in the principal case, and applies the same rule to that oase^ which 
was substantially one of the same kind. 



Ba£« of Ftetsbubgh v. Whitehbad. 

[10 Wars, 897.] 

QuBsnov OF Fact ufok whioh thsrb is a Spark of Evidbkob must 
be submitted to the jury. 

Information Givkn to Board of Dirbotors of Bank, at a regular meet- 
ing* by one of their number, of the dissolution of a firm whose paper is 
subsequently offered for discount, is notice to the bank notwithstanding 
the absence at such meeting of the committee whose business it was to 
act on such matters. 

Ebbob to Allegheny county district court, in an action of 
assumpsit on certain drafts purporting to have been drawn by 
the defendants' firm and discounted by the plaintiff's bank» 
which had been protested for non-payment. .The defense relied 
on was that the firm had been dissolTcd before the drafts were 
drawn, by the withdrawal of Christian Ihmsen, the i)artner who 
drew said drafts, and that he had therefore no authority to draw 
the same, of which fact the bank had notice. The evidence on 



Sept 1840.] B'k of Pittsburgh u Whitehead. 187 

the sabject of notice tended to show that several of the directors 
of thel)ank saw a pablished notice of the dissolution of the firm 
before these drafts were presented for discount, and that at a 
regular meeting of the board of directors some time before, when 
a loan had been applied for bj the new firm after Ihmsen's with- 
drawaly one of the directors stated that Ihmsen was no longer a 
member of the firm, and the matter was talked oyer bj the board. 
It seems that the exchange committee of the bank was not 
present at that meeting. The court below instructed the jury, 
among other things, that actual notice of the dissolution must 
be brought home to the plaintifb, as thej had had previous 
dealings with the firm, but that if the jury believed that several 
members of the board of directors had knowledge of the dis- 
solution, they were at liberty to infer actual knowledge of that 
&ct by the bank; much more if they believed that information 
upon that point was communicated to the board at a regular 
meeting, and that the fact that the exchange committee who dis- 
counted the paper had no knowledge of the dissolution would 
make no difference. The charge was excepted to, and error 
assigned therein after verdict and judgment for the defendants. 

Duinlop^ for the plaintiff in error. 

Forward^ for the defendants in error. 

By Court, GtesoN, 0. J. Where there is a spark of evidence, 
the question of &ct must be submitted to the jury as the legit- 
imate triers of it. In this instance the evidence would be ample 
to affect a natural person with notice of the dissolution; but 
the party to be affected is a corporation. Notice to an individ- 
ual corporator, if he be not constituted by the charter or by- 
laws an organ of communication betwixt the corporation and 
those who deal with it, is not notice to it, because any presump- 
tion that he delivered what he had received to the body, would 
be rebutted by the fact that it was not his dufy to do so. He 
might choose to leave that business with the person officially 
charged with it, and thus leave the corporation in possession of 
the rights and advantages which arose from imputed ignorance. 
But notice to the government, or head, is necessarily notice to 
the body; because it is to be approached by stnmgers only 
through the medium of its government, or else some organ or 
branch of it, specially deputed to represent it; and the govern- 
ment, or its depuly, is consequently the channel through which 
it is to receive formal or official notice. Now the government of 
a bank resides in a select body, called president and directors; 



188 B'k of PrrrsBUBGH v. Whtteheaix [Peim. 

4ind no matter how the duties of its individual members maybe 
parceled out among themselvesy it is still the president and di- 
rectors in the aggregate with whom stnuigers have to do, and 
lyj whom all corporate acts are to be performed. Where indeed 
the charter, a by-law, or inveterate custom has authorized the 
•exeoutiye officers of a bank to act for it, they may bind it by 
their reception of notice as well as by any other act within the 
«cope of their power; but notice directly to the principal, is 
necessarily as efFectiye as if it were given to the agent, in order 
that it might be deliyered by him to the principal. Publication 
•of dissolution in a newspaper, taken by the officers, and paid 
for by the bank, may not be constructive notice to a bank which 
had, as in this instance, previously dealt with the firm; but 
when the fact of dissolution, gleaned from that, or any other 
source, is stated before the board by a member of it, and made 
a subject of conversation during the veiy transaction, it is im- 
possible to doubt that the bank is to be affected, because knowl- 
edge of the fact material to be known is a part of the rea gesia. 
There can not be a question, therefore, that knowledge imparted 
to the board, as was done here, by a director at a regular meet- 
ing, is notice to the bank. As to the absence of the exchange 
committee, whose function it was to act on the basis of the in- 
formation, it is enough that it was the business of the board, 
and not of the party treating with it, to give its subordinate the 
necessaiy instruction. The power which appoints a committee 
is the proper one to direct it, and inform it of whatever is neces- 
saiy to be known. The commi^tse, in this instance, was the 
peculiar organ of the board; and even if it had been competent 
to receive a formal notice, still notice communicated to the 
principal must be deemed equally opeiative. There was, there- 
iore, evidence of actual notice to be left to the juiy. 
Judgment affirmed. 

Konox TO OmoBB oa Aosmt ov Cobpo&ation Aptboib Cobpobatioh» 
WHEN. — ^The general role that notice to an agent within the Boope of his 
agency, and respecting a matter in which he is aathorised to repEesent his 
principal, is notice to the principal, is undonbted: Whart. on Agency, sees. 
177, 178; Story on Agency, sec. 140; Jackson v. Sharp, 6 Am. Dec. 267. Kor 
b it to be doabted that this rale applies to the agents of corporations as well 
as to those of other principals: Whart on Agency, sees. 183, 184; Story on 
Agency, sec. 140a; Ang. & Ames on Corp., sec. 905. Indeed there are peca- 
liiur and urgent reasons for a more stringent enforcement of the role against 
corporations than against indiyidual principals, from the fact that the only 
way of commnnicating actual notice to a corporation Ib through its agents: 
MUan Bank ▼. New York etc. Canal Co,, 4 Paige's Ch. 127. "A corporatloii 



Sept 1840.] B'k of Pittsbxtboh v. Whitehead. 189- 

can not see or know anything except by the eyes or intelligence of its officers:*^ 
FbMor8 etc. Co. v. Marine Dry Ihek etc. Co., 31 La. Ann. 149. Whenever, 
therefore, notice or knowledge of a particular fact would impose upon a pri- 
vate person any duty or liability, a like duty or liability will be devolve<l. 
upon a corporation by similar notice or knowledge on the part of its author- 
iaed agent as to a matter within the line of his duty. To quote again from 
the case last cited: "Where knowledge in any form will suffice, a corporation, 
must be held to know what its president and chief officers know." 

Before entering upon a discussion of the cases respecting the effect of notice 
C^ven to particular classes of corporate officers and agents, it will be useful to- 
consider some of the general principles applicable to all such officers and 
agents. 

Offickb g& AaENT mrsT hate Noticb in his Repbesentativb Chasactbr, 
or the corporation wiU not be bound. In other words, as already stated, he 
must have the notice while acting for his principal, and it must relate to a- 
matter within the scope of the agency: Bank v. Schaittamberg, 38 Mo. 228; 
Cwngcar v. Chicago etc. R. R. Co., 24 Wis. 157; S. C, 1 Ajn. Eep. 164. The 
agent must have authority, and it must be his duty, to act upon the subject- 
of the notice, or it will not be binding: Bank of VirginkL v. Craig , 6 Leigh, 
390. This rule is important, and has a special application to corporate agents 
owing to the distribution of duties among them. Notice of the dishonor of & 
note given to the porter of a bank, or notice of stoppap;e of goods in transit 
served upon a brakeman upon the carrier's train, would, of course, be in- 
effectual. Upon the same principle, where a railroad company is sought to> 
be charged with negligence in the shipping of goods to a wrong town, where- 
there are two towns of the same name in a state, evidence that the agents of the 
company in the state to which the goods were sent knew the place intended, 
is inadmissible where it is not shown that the agents in another state, who* 
shipped the goods, possessed any such knowledge: Congar v. CMeago etc. R, 
R. Co., 24 Wis. 167; S. C, 1 Am. Rep. 164. 

In the case of a banking corporation, it Is laid down in Bank qf Urginia v. 
Craig, 6 Leigh, 399, that notice of any fact, to be effectual, must be com- 
municated to the very officer who has chaige of that department of the bank'* 
business. "Notice is to be given," says Tucker, P., in that case, "to that 
officer within whose appropriate sphere the transaction falls: Thus, if one 
desire to stop the payment of a check, he must go to the cashier and not to 
the president; and if he wish to arrest the transfer of stock, he must go to- 
the transfer clerk and not to the bookkeeper.'* This rule is, however, en- 
tirely too stringent, as is well said in a recent valuable article on this subject 
in 6 Southern Law Review, 799. It would obviously be most unjust to de- 
mand that all persons having dealings with a bank should be so accurately 
informed as to the precise duties of every officer of the corporation, as sucb 
a rule would require. But it would be equally unjust to hold the bank bound 
by notice given to a subordinate employee respecting a matter which every 
person of common intelligence ought to know does not fall within such em- 
ployee's sphere of action. Thus, in case of a note left for collection where it 
is claimed that the bank has been guilty of laches in transmitting notice of 
non-payment to an indorner to a wrong address, it would be clearly wrong to 
charge the bank with notice of the indorser's true residence because that fact 
happened to be known to one of the clerks in the institution: Ooodloe v. 
OocUey, 21 Miss. 233. 

MutK Pbivatb, Unofficial Infobhatiok or knowledge acquired by an. 
officer of m corporation, casually or by rumor or through channels open alike- 



190 B'k of Pittsbuegh v. Whitehead. [PeniL 

to all, as to matters upon which such o£Scer is not required to act, is clearly 
not notice to the corporation if not oommunicated hy such officer to the pro- 
per authorities in the institution: United SkUe$ Ins, Co. ▼. Skriver^ 3 Md. 
Ch. 381; Wimchaier v. BalUmore eie. B. R. Co., 4 Md. 231; Baank qf Fifyima 
V. Craig, 6 Leigh, 399; MtehaaMcs' Bank v. Schawnberg, 38 Mo. 228; MUler 
V. IUku)i9 CeiUral B. B. Co., 24 Barb. 312. These and other cases relating 
to this point will be further examined when we come to discuss the question 
of notioe to particular officers of corporations. It is proposed here simply to 
ascertain the general rule upon the subject. In some of the cases it is held 
that private information acquired by one who is not at the time acting as 
agent for a corporation is not notice to the corporation even though the per- 
son acquiring the information is subsequentiy called upon to take action upon 
the same matter %i officer or agent of the corporation. Thus, in Ho uaem a n 
V. (Gfirard tic. AModaiion, 81 Fft. St. 266, it is decided that knowledge ac- 
quired by a party before becoming agent of a corporation can never be notioe 
to the corporation after the inception of the agency. ' ' Notice to him twenty- 
four hours before the relation commenced,** say the court in that case, 
''is no more notice than twenty-four hours after it ceased would be. 
Knowledge can be no better than direct actual notice." This is the rule laid 
down ako in Story on Agsacj, sec 140. But the later and better consid- 
ered cases show that this is not the correct doctrine. Any knowledge or in- 
formation possessed by an agent at the time of acting as agent for a corpo- 
ration, with respect to the matter upon which he is to act, is notioe to the 
corporation, whenever and however such knowledge or information may have 
been acquired, except in cases where express, fonnal notice is required to 
chaxge the principal. The point to be regarded is whether the agent actually 
had the knowledge or information at the time of acting. There is no prac- 
tical distinction between individual knowledge and official knowledge in such 
cases: Bridgeport Bank v. New York etc. Co., 30 Conn. 231. This principle 
is very clearly and satisfactorily stated by Green, J., in Union Bank v. 
Camjpbell, 4 Humph. 394. In delivasing the opinion of the court in that case, 
after some preliminary remarks he says: 

"We do not intend to controvert the general doctrine, that 'notice must 
come to the agent while he is concerned for the principal, and in the course 
of the same transaction,' for notice to a party while he is not acting as agent 
is certainly no notice to a principal for whom he may afterwards act. But 
the existence of knowledge in an agent, when acting for his principal, is 
notice to the principal, however that knowledge may have been acquired. 
Thus, if an agent, in his own transaction, has had notice of a fact, that notice 
does not reach his principal, because he is not then acting for his principal; 
and before he comes to act as such agent, in relation to the subject about 
which he had notice, he may have forgotten the whole matter; so tiiat it was 
never present in his mind while discharging the duties of his agency. But if 
he had received the notice while concerned for the principal, the principal 
would be bound by it, though the agent might forget the f^iots, and have no 
memory of them during the transaction to which they relate. But certainly, 
if, while an agent is concerned and acting for his principal, he have knowl- 
edge of the facts, in relation to which notice is necessary, there can be no 
necessity for giving formal notice of the same facta to the individual who 
already knows them. It would be very absurd to assume, that althou^^ 
every director may have notice of the dissolution of a partnership, and wnile 
on the board considering the propriety of discounting a note that purports to 
have been indorsed by the firm, they speak to each other of the fact of 



Sept. 1840.] B'k of Pittsbxtbgh v. Whitehead. 191 

Intion; yet^ because notice of the dinoluticui wm not commnnicated to them 
while thus concerned in this ttanBaction, the bank had no notice, and the re- 
tiring partner is bonnd." 

That was, as appears from the above extract, a case in which it was son^t 
to affect a bank with notice of the dissolntion of a partnership, the fact bciLig 
ioiown to certain of the directors who were present and acted in the board on 
the disooont of a certain note, purporting to have been indorsed by the firm. 
The court held that it was not necessary to show afBrmatively that the 
directors to wlmn the fact of the dissolution had been previoosly oommnni- 
•cated remembered it at the time of acting on the note, but that the Jury 
might infer from the circumstances that they did remember it. The same 
4ootrine was applied in FairJUld etc, Savinga Bank v. Chaae^ 11 Bep. 809, in 
the Maine supreme court. In that case it appeared that certain information 
afleoting a matter upon which an agent of a corporatioin was called upon to 
act had been acquired by him before the inception of the agency, and the 
question was, whether the corporation was chargeable with notice of what 
was thus known to the agent. Mr. Justice Peters, delivering the opinion of 
the court, after oritidsing Hommanr. Gkurdetc Auodathn^ 81 Pa. St. 258, 
nfetied to above, thus stated the true rule: " The knowledge must be p rs a 
ent to the mind of the agent when acting for the principal, so fully in his 
mind that it could not have been at the time forgotten by him; the knowledge 
or notice must be of a matter so material to the transaotian as to make it 
the agent's duty to communicate the fact to his principal; and the agent must 
himself have no personal interest in the matter which would lead him to con- 
esal his knowledge from his principal, but must be at liberty to communicate 
itb Additional modification might be required in some cases. These ele- 
ments appearing, it seems just to say that a previous nq^ce to an agent is 
present notice to the principal. ** hk ffartY. Foment Bani^ dS Vt 252,a]so, 
infonnation acquired by an agent of a corporation before the relation com- 
menoed, as to a matter upon which he was afterwards called upon to act, was 
held to convey notice to the corpogration. See, also, other cases referred to 
in the note to Story on Agemsy, sea 140. Of course private information 
acquired by an agent during the continuance of the relation respecting a mat- 
ter upon which the oorporatian is called upon to act after the agent has ceased 
to be agent, is not notice to the corporation: PlaU v. Birmingham Axle Ca, 
41 Conn. 266. So, even where the information is acquired by the agent inci- 
dentally in the diaohaxge of his duty as agent. Thus a railway company is 
not chargeable with knowledge acquired by a former officer or agent, as to the 
arlntrary marks of a consignee of goods, where there is no proof that the 
information was acquired through any usage, custom, or course of business of 
the company relating to the matter: Chrtai Western BaUwap ▼. WkeeUrf 20 
Mich. 419. 

KiffowLXDOX P08BB88ED BT Offiobr Dxauno with Cobpoiution.—- The 
foundation principle upon which rests the doctrine that a party, whether an 
individual or a corporation, is chargeable with notice imparted to his agents in 
the line of their duty, ii that agents are presumed to communicate all such 
information to their principals because it is their duty so to do. The prin- 
eipal is conclusively presumed to know whatever his agent knows if the 
iatter knows it as agent. Of course no such presumption can exist where 
the agent is dealing with the corporation in the particular transaction in his 
own behalf: 6 Southern L. Rev. 816. In such transactions the attitude of 
the agent is one of hostility to the principal. He is regarded as a stranger. 
There is no privity between him and the principal. He is dealing at arm*s 



192 B'k of Pittsbuboh v. Whitehead. [Pemiv 

length. It would be Abeord, therefore, to sappoae that he woald ooni-^ 
mnnicate to the principal any facts within his private knowledge, aflfoctiii^ 
the anbject of the dealing, unless it would be his duty to do so if he were- 
whoUy unconnected with the principaL Hence, whenever it appears that an 
officer or other agent of a corporation is transacting business with the cor- 
poration for himself in the same way as any other person might do, the law 
wiU not impute to the corporation any knowledge of his relating to the mat- 
ter in hand. As was said by the court in Wieienham v. Chicago Zmc Co,, 
18 Kan. 481: "Neither the acts nor knowledge of an officer of a corporation 
wiU bind it in a matter in which the officer acts for himself and deals with 
the corporation as if he had no official relations with it." Or, as was said in 
Barnes v. Trenton Oas Light Co., 27 K. J. Eq. 33, his interest is opposed to 
that of the corporation, "and the presumption is, not that he will communi- 
cate his knowledge of any secret infirmity of the title to the corporation, but- 
that he will conceal it.'' This doctrine is applied to the case of a president 
or director conveying land to a corporation having notice of a secret defect 
in the title: Bamea v. Trenton Oas Light Co,, 27 N. J. Eq. 83; LalbHrgeFire 
Ins. Co. V. Bell, 22 Barb. 54; Lyne v. Bank qf Keninekg, 5 J. J. Marsh. 545. 
So to the case of a director procuring the discount of a note for his own- 
benefit having knowledge that it is foonded upon an illegal oonsideraiion: 
Urst NaUanal Bank qf Hightstown v. Christopher, 40 K. J. L. 435; S. (X, 8 
Bep. 403; 8 Cent. L. J. 181; or tbat it was made for his accommodation: 
Commercial Bank v. Cunningham, 24 Pick. 270; or that it was obtained under 
a false pretense of having it discounted for the maker: Washington Bank v. 
Lewis, 22 Pick. 24; or that it was affected in his hands with certain condi- 
tions: Louisiana State Bank v. Senecal, 13 La. 525; or with a daim of re- 
coupment of whi(h the bank had no notice: Loomis v. HagHe Bank qf- 
Rochester, 1 IMsn. 285; or with other equities: Wetit Boston Samngs y. Boston, 
124 Mass. 508. So to the case of a cashier n^otiating a note to the bank 
which he had procured for a different purpose, the bank having no notioe of 
the misapplication: Seneca County Bank v. Neass, 5 Denio, 829. The same- 
principle ruled In re European Bank, L. B., 5 Gh. App. 858, where the^ 
manager of the bank abstracted certain moneys belonging to it and pur- 
chased therewith certain overdue bills which he afterwards sold toanother bank 
of which he was sole director, and it was determined that the second bank 
had not constructive notice of the fraud affecting the title to the biUs. On> 
this subject the court said, speaking of the director: "He can not be taken< 
to have disclosed his own fraud." In First NaJt. Bank v. Clifford, 47 Iowa, 
575, an arrangement was made between the president and cashier of a bank, 
whereby the latter was to borrow money from the bank to purchase stock 
therein, giving his note therefor indorsed by the president, with the under- 
standing that the bank should hold the stock as collateral security to the- 
president to protect his indorsement. The cashier having secretly sold the 
stock to another party, the bank issued new certificates to the purchaser not- 
withstanding notioe of the agreement given to it by the president after the 
sale and after the president had ceased to be an officer of the bank. In a- 
subsequent action brought by the bank against the former president as in- 
dorser of the cashier's note, it was decided that the knowledge possessed by 
the president and cashier at the time of the loan, as to the arrangement be- 
tween them, could not affect the bank with notice, because they were acting 
for themselves in that transaction, and not for the bank. Seevera, J., deliver- 
ing the opinion, said: "The proposition is rather a strange one, if the de- 
fendant and Porter [the cashier] could act for themselves and the bank iiK 



Sept. 1840.] B'k of Pittsbuboh v. Whitehead. 193 

and aboat the nme tnuinotion at the same time, and equally protect the in- 
terests of both; or that, while so aotiiig, they oonld, by notice to each other, 
bind the bank hand and foot without at Isast adTiring with or notifying any 
other officer of the institation." 

It will be noticed that in all these cases the corporate agent was not acting 
in his official character in the particolar transaction. The fact of his agency 
was mecely incidental It is obvious that the same role can not be applied 
where the agent acts officially upon a matter in which he has a personal in- 
terest, even though sach interest is adverse to that of the corporation. In 
snch cases it is his dnty, notwithstanding his interest, to oommimicate to his 
company any facts in his pos se s sio n, material to the transaction, and the law 
will therefore presume, in &vor of third persons, that he made snch com* 
mnnication. This, it seems to ns, is the principle to which are to be referred 
tboee cases, hereafter to be mentioned, in which corporations have been held 
to be affected with notice of facta known to some of their directors acting 
officially upon matters in wliioh they had a personal interest. So, also, cases 
of frandL 

WheBB THZ AOBHT OB QmOKB OV A COBPOBATIOH 18 ALSO AOBHT OV 

AvoTHEB CoRPOBATiON OB Pebsoit, and there are mntnal deaUnge between 
the principals throogh the intervention of snch agent, the question as to 
whether either principal is to be affected with notice of what is known to the 
officer or agent by virtue of his relation to the other principal, will depend 
upon droumstances. If the knowledge is such as the principal himself, if 
present, would not be bound to oommunicate, there would seem to be no 
rsason why the agent should be presumed to have communicated it. Tbus, 
if one of two corporatians having a common officer, borrows money of the 
other, through the intervention of euoh officer, for a purpose which is illegal, 
or enters into a contract which is uUra vireSp the other corporation ought not 
to be charged with notice of the facta: In re ManeiUe$ etc Co,t L. R., 7 Ch. 
App. 161; In re Ckmiract Corporation^ L. R., 8 Eq. 14. The two corporationa 
are dealing in such a case as strangers, and the £act that they havea conmian 
officer or other agent, ought to make no difference in the transaction. There 
is in reality in snch a case a conflict of duty on the part of the agent. He 
has knowledge of certain &cts which it is his duty to one principal to con* 
eeal, and to the other to communicate. There can, therefore, be no presump* 
ticn either way, and the question of notice depends upon whether he did in 
fact oommunicate the information. But where it is the interest of the prin- 
cipal from whom he received the information to communicate it to the other, 
it ought to be presumed that he did so. Therefore notice should be inferred 
against the principal with whom the transaction was had. Thus in Oale v. 
LtwiSf 9 Q. R 730, a creditor instructed his attorney, who was ako agent of 
an insurance company, to procure an insurance upon his debtor's life as 
security for a loan; and on the debtor's subsequently becoming bankrupt, his 
assignees claimed the benefit of the policy. The court held, however, that 
the policy did not pass by the assignment in bankruptcy, but that the cred- 
itor was entitled to the same, as a prior assignee, of whose claim the insur- 
ance company had notice. It was argued that the communication was made 
by the creditor to his attorney as attorney, and not as agent of the insurance 
company, but the jury having foifnd that the agent had authority to receive 
notices of assignments. Lord Denmsn, G. J., declared that the two capaci- 
ties of agent and attorney being "united in one person, a notice received in 
one capacity for the purpose of being transmitted to the other is an effectual 
notice in both capacities." Here, it will be perceived, it was the agent's 
Ax. DM. Vol. ZXZVI— IB 



194 B'K OF FrrrsBUBGH v. Whitehead. [Penn. 

duty to both prindpalB to commimicate to the company the infonbAtion iu 
his poMeasion. 

Whkbb it is SnpULATiD THAT NoTiOB SHALL NOT BE GiYBN to ft cor- 
poration of facts c(HnmTinicated to one of its officers, there is no presumption 
that notice will he given notwithstanding the interdiction. There is no case, 
therefore, for implied notice. Thus, where the cashier of a hank makes a 
loan, under the direction of the president, to a party whom the latter knows 
to be insolvent, but is persuaded by the president not to communicate the 
facts, there is no notice: Fini Nai. Bank v. Bead, 36 Mich. 263. See also 
Ex parte NyUmg^ 2 Mont D. & De G. 302. 

NoTiooB ov Fbaub of Aobvt. — ^Where an officer or agent of a corporation 
takes advantage of his official position to perpetrate a fraud upon a third per- 
son, acting at the time in his official character upon a matter within the 
sphere of his duty, the corporation must be presumed to have notice of all 
facts within his knowledge affecting the validity of his act: 6 Southern Law 
Beview, 821. Although in cases whei^u there is no fiduciary relation, it will 
not be presumed that a person will disclose his own fraud, uo such presump- 
tion can be indulged here against the counter presumjition that an agent 
has communicated to his principal all material facts known to him affecting a 
transaction in which he is acting as such agent in the line of his duty. For 
the protection of third persons it must rather be presumed that the principal 
has authorized the agent's act, with notice of the fraud. Thus a bank is 
chargeable with notice of facts vitiating the title to securities obtained by the 
collusion of its teller with an officer of another bank, by certifying as "g^Dod" 
the check of an irresponsible person, which is taken up by such other bank: 
AtlanUe Bank v. Merchants* Bank, 10 Gray, 532. So, where the treasurer d 
a town, being also cashier of a bank, gave a note, as such treasurer, to raise 
money for his private use, which note was discounted by him as cashier, the 
bank was held bound by his knowledge of the fraud: Bank of New MiUford 
T. Town qfNew M%Hford^ 36 Conn. 93. So where the cashier of a bauk, be- 
ing treasurer of another corporation, deposited securities of the latter to ob- 
tain a loan for the bank: FUhkHU Saxinga Inst, v. Boetwick, 19 Hun, 35i. 
The same principle was applied in Hcllden v. New York etc Bank, 72 N. Y. 
286, to a fraud committed by the president and sole manager of an insolvent 
bank, in causing the transfer of certain shares held by him in such bank, 
through a third person, to an estate of which the president was executor, 
paying therefor by a check drawn against funds of the estate deposited in 
the bank. The whole transaction being necessarily within his official knowl- 
edge, the bank was charged with notice of the fraud. . 

NoncB TO THE Pbxsident of a Corporation who is also its general agent, 
addressed to him in his official character, as to any matter within his supers 
vision, is of course notice to the corporation : Smith v. Board qf Water Cony- 
tnisaionenf 38 Conn. 208. So any knowledge or information acquired by him 
in the course of his official duty relating to the business of the corporation 
under his control: Van Leuvan v. F%rst National Bank, 6 Lans. 373; Mechanic^ 
Bank v. Schawrnberg, 38 Mo. 228. So knowledge possessed or acquired by a 
bank president in connection with tlie discount of a note, as, for instance, fais 
knowledgeof the x^sidence of an indorsor thereon, notwithstanding his acciden- 
tal absence at a particular time: GeiUral National Bank v. Levin, 6 Ma App. 
543. Express notice to the president of a bank, sufficient to put him upon 
inquiry, that stock held by a stockholder is held in trust for another, is notice 
to i^ehasik: Porter y. Bank qf Rutland, 19 yt. 4ia Bat ia Bank of Virginia 
V. OrtUg, 6 Leigh, 399, it was held that notice served by the sureties of a 



8qyt. 1840.] B*K of Pittsbitbqh v. Whitehead. 195 

guardian upon the pradde&t of a bank in a suit brought against the guardian 
and ward and the president and direotors of the hwok, hat not against the 
iMnk by ita oorporate name, to restnin the sale of stock held by the ward in 
the bank, was not notice to the bank, becanse the president had no official 
control over that matter. This case, however, is shown in 6 Soathem Law 
Bev. 799, 800, to be clearly contrary to the doctrine laid down by Gibson, G. 
J., in Bank qf PUttburgh v. WhUehead^ that notice to the head of a corpora- 
tion ia neoessarily notice to the corporation. Granting it to be trae that the 
president alone had no control over the " transactions of holders of stock," as 
stated in that case, it would certainly seem to have been his dnty to conmm- 
nicate the information possessed by him to the board of directors, who, with 
himself, had each controL Notice to the president of a mining company re* 
speeting the aets of one who assomes to act for it without anthority is notice 
to the corporation, where the president has general control over its aiSairs, and 
the corporation can not be heard to say that the president received the in- 
formation as an individual, and not officially: Umon Mining Co. v. Bock^ 
Mcuniam NaUomai Bcmk, 2 CoL 248. Information npon which a corporation 
ia reqnired to act for the protection of its interests nnder penalty of being 
estoj^ed by ita non-action, if possessed by an officer who has power to act at 
the time when action is required, would seem necessarily to be notice to him 
in his official character, and therefore notice to the corporation, however such 
information may have been acquired. But» as stated elsewhere in this note,, 
mere casual private knowledge by the president of a corporation as to a mat- 
ter upon which he is not called upon to act, is not notice to the corporation: 
M^ekaaMof Bank v. Schamiberg, 38 Mo. 228f MUler v. lUinoia Central R. B. 
€o»t 24 Barb. 312; as where he learns incidentally, as agent of a firm of which 
he is a member, that the firm has made a conditional contract for the sale of 
stock in the corporation of which he is president, "without any intimation, 
however, that it was intended or designed to give notice to him or the com- 
pany, or that he as president or the company as his principal should take no- 
tice of it or regard it:*' MUler v. lUtnois Central B. B» Co., mpra. If, how* 
ever, a firm of which the president of a corporation is a member, after having 
pledged to one party certain shares of stock in the corporation, have those 
ahazea canceled and others issued in their stead, signed by the president, 
which th^ pledge to other parties, the corporation is chai^geable with notice 
of the first pledgee's rights, because the president* having knowledge of them, 
took official action in issuing the new shares: Factors* etc. Ine. Co. v. Marine 
Dry Dock Co., 31 La. Ann. 149. Evidence tending to show that the presi- 
dent of an insurance company saw a newspaper notice of the time of sailing 
of an insured vessel is admissible in an action on the policy, where that fact is 
material: Chreen v. Merchant^ Ine. Co., 10 Pick. 402. In such a case, although 
the information is acquired casually, it unquestionably relates to a matter 
upon which the president acts officially. It therefore comes within the rule 
already laid down. 

NonoB TO DtsnoTOBS as a Body. — The directors of a corporation collect- 
ively constitute, with the president, the governing power, as stated by Gibson, 
C J., in the principal case. They have general superintendence and control 
over the affidrs of the corporation. There can, therefore, be no question that 
notice or information regarding any matter upon which the corporation is re- 
quired to act communicated to the direotors when assembled as a board, is 
notice to the oorporation: Angell & Ames on Corp., sec 306; FuUcn Bank v. 
2few Torkete. Canal Co., 4 Fteige, 127; Bx parte Agra Bank, L. &., 3 Ch. 
App. 5&fi. ^'Aaageneral rule," say the court in Toll Bridge Co. v. Bel^ 



196 B'k of PrrrsBXTBOH v. Whitehead. [Pcmi. 

worth, 30 Comi. 380, '* what the dineton know regarding matters affeciiiig 
its intereats the ooiporatioii knows. " Nor doee a change in the board of direct- 
ors after it has received notice make any change in the efibot of the notice. 
Therefore, notice given to a previoos board that certain stock is held by a 
party as trostee is binding upon a sncceeding board and npon the corpora- 
tion: MechatUa? Bami v. Seion, 1 Pet 209. 

NoiZGB TO IifDiTiDUAL DtBBOTOBS.— The cascs respecting the effect of 
notice or information commnnicated to one or more directors of a corpora- 
tion are very conflicting, and seem to be almost iirecondlable, unless it be npon 
the pcinotples already indicated in this note. In some oases it is held that 
the " directors are not officers of a bank in a proper sense, nor have they in- 
dividnally any power or control in the management of its cancems; tfa^ act 
colleotivi^y and at stated times, and have otherwise no more to do with the 
general management of the institution than the other stodkholden:** LcwM' 
mia State Bank v. Seneocdt 13 La. 625. The legitimate inference from this 
argument is that notioe to a single director, or to any number of individual 
directors, or to all of the directors individually, can in no case be notice to 
the corporation unless actually communicated to the board of directors as a 
body. At least under such a rule notice to individual directors coDst i t utin g 
leas than a majority of the board would be ineflfoctuaL It is to be noted, 
however, in passing, that in the case last dted it was not necessary to lay 
down any such sweeping doctrine. That was a case in which it was sou^^t 
to charge a bank with notice of equities aflfooting a certain note which were 
known to one of the directors. It was decided that the bank was not a£footed 
with notice^ but as it appeared that the note was discounted for the benefit 
of the director who possessed the information respecting it, and that, al- 
though present at the board, he took no part in the discount of the note, the 
deoiBion may be upheld without resorting to any such extreme rule as that 
notice to a single director can never be notioe to the bank. Indeed, consider- 
able stress was laid upon the fact that the director had an interest in sup- 
pressing the information. 

A simUsr doctrine to that of Lom M ama State Bank v. ^Seaeooi^ ngtra, is 
laid down by Depue, J., ewynendo, in Fint Nal, Bank qf Higktttewn v. 
CkriOopher, 40 N. J. L. 436; S. C, 8 Bep. 403; 8 Gent L. J. 181, where he 
aays: " The directors of a corporation are not individually its agents for the 
transaction of its ordinary business, wliich is usually delected to its execu- 
tive officers, such as the president or cashier. Directors are possessed of ex- 
tensive powers, even to the extent of abeolute control over the management 
of its aflBBdrs, but these powers reside in them ae a board: and, when acting 
as a board, they are collectively the representatives of the corporation. 
Notioe to directors, when assembled as a board, would undoubtedly be 
notice to the corporation.'* It is, however, conceded in that case that there 
are certain decisions in which notioe to a single director has been held 
effectual, though not communicated to his colleagues, where such director 
has been called upon to act and has acted with the board on the matter as to 
which he had notice. 

Although it Lb unquestionably true that an individual director, not clothed 
with any special agency in a particular transaction, can not bind the corpo- 
ration except by acting officially with his colleagues, it would seem to be 
reasonable that he should be rc^uded as, in some measure, an organ of oom- 
muuication between the board and third persons, with respect to matten 
npon which the board has power to act, and that where a notice ia given ta 
him, officially, "for the purpose of being communioated to the board," with 



Sept 1840.] B'k op Pittsbubgh v. Whitehead. 197 

resp e ct to any such matter, the corporation should be held to be charged 
with the notice whether it is actually communicated to the board or not. 
This is the doctrine laid down in United States Ins, Co, v. Shriver, 3 Md. Oh. 
381; Cfentral Ins, Co, v. United States Ins, Co., 10 Md. 527; Boyd v. ChestP' 
peaks etc. Canal Co,, 17 Id. 195. It is undoubtedly the duty of a director 
receiving such notice to communicate it to his colleagues: Story on Agency, 
sec. 140b; and ought he not to be conclusively presumed to have done so 
where the rights of strangers to the corporation are to be affected f It must 
be admitted, however, that this doctrine is disapproved by Judge Story in 
his work on agency, sec 140a. 

Another class of cases, in which coiporations have been chained with no- 
tioe of facts known to one or more directors and not communicated to the 
board, are those in which the director having snch knowledge acts as a mem- 
her of the board upon the very matter a£focted thereby, whether such knowl- 
edge is acquired privately or in the course of the business of the corporation; 
as where a director of a bank having notice of some equity affecting the 
validity of a note acts with the board in the discoant of such note: Union 
Bank ▼. Campbell, 4 Humph. 394; Baaik qf United States v. Davis, 2 Hill, 
451; Clerb^ Sawngs Bank v. Thomas, 2 Mo. App. 367; National Seeurity 
Bank ▼. Onskman, 121 Mass. 490. So even where such note is discounted 
for the benefit of the director possessing the knowledge, or of a firm of which 
he is a member:. Bank qf United States r, Davis, 2 Hill, 451; North River 
Bank ▼. Afpnar, 3 Hill, 282. A contrary doctrine is laid down in Custer v. 
Tompkins County Bank, 9 Pa. St 27, and Terrdl r. Branch Bank qfMobUe, 
12 Ala. 602, the latter being a case in which a director to whom a note was 
sent for discount, with a blank for the amount which was to be filled by a 
certain sum, filled the blank with a larger sum and had the note discounted 
for his own benefit^ himself acting with the bo^trd in the discounting of it. 
Mr. Justice Story also seems inclined to the opinion that the fact that a 
director having private knowledge of equities affecting the validity and acts 
upon the board in discounting it, ought not to charge the corporation with 
notice of such equities': Story on Agency, sec. 140b. fiut see 6 Southern 
L. Rev. 814. It seems to us, in accordance with the rule already laid down, 
that a director acting upon the discount of a note with knowledge of a secret 
infirmity in it, should be regarded as acting as agent for the corporation, 
and that the corporation should be charged with notice of the facts known 
to him, though not communicated to the board; and that the same rule should 
apply even where the director so acting is personally interested in the note, 
for, in our view, that fact can make no difference, where the director in- 
terested acts in his official capacity, for the oorpoeatioii, in discounting the 
note. 

As already stated, however, there can be no question that the mere private 
knowledge of one or more directors of a corporation not communicated to 
the board, concerning any business in which the corporation is interested, 
such as unrecorded liens upon lands conveyed or mortgaged to the corpora- 
tion, or secret equities affecting notes discounted by it or the like, where 
such directors have no official duty to perform in regard to the matter con- 
cerning which they possess such knowledge, and where they do not take any 
part in the transaction on behalf of the corporation, does not affect the cor- 
poration with notice of the facts known to snch directors: Lucas v. Bank qf 
Darien, 2 Stew. 280; Farmers' etc. Bank v. Payne, 25 Conn. 444; Farreii 
Foundry v. DaH, 26 Id. 376; Merder v. Canonffe, 8 La. Ann. 37; FairJiM 
Savings Bank V. Chase, 11 Rep. 809 (Me.); Winchester v. BaUisnort etc. B. B. 



198 B'K OP PrrrsBXTBGH v. Whitehead. [Penn. 

Co., 4 Md. 231; General Ins. Co. ▼. United Ins. Co,, 10 Id. 617; (TnUed 
BUOee Ins. Co. v. Skriver, 3 Md. Gb. 381; SoAifyer ▼. PUmUrs* Bank^ 6 Allen 
207; NaUonal Bank v. Norton, 1 Hill, 572; Ihdton Bank v. New York eU. 
Canal Co., 4 Paige, 127; Weetem Bank ▼. Comen, 37 N. Y. 320; ^Ooii^k 
Bank ▼. iSbvery, 18 Hon, 36; S. C.» 82N. Y. 291; Itrst Nat. Bank qf ffights 
town V. Christopher, 40 K. J. L. 435; S. C, 8 Bep. 403; 8 Cent. L. J. 181 
Jones V. Planters* Bank, 9 Heisk. 456; In re Carew's EstaU Act, 31 Beav. 39 
£lx pcurU Burbridge, 1 Deac. 131; Ex parte Wathhu, 2 Mont ft A. 348 
Powles ▼. Page, 3 Com. B. 16; Purvianoe Bailway Co. v. Thames etc. Ins. Co. 
Ik R., 2 Ch. 617; Angell SS Ames on Corp., sec. 308. See also a valuable art! 
cle on the subject of "Notioe to Directors of Corporations," 6 Southern L. 
Rev. 46. 

Where the director of a corporation was the managing director of such cor- 
poration, and certain shares of stock in the corporation were deposited with 
him by a shareholder, as security for an accommodation indorsement by such 
director, the corporation was held to have notioe of the assignment so as to 
prevent the passing of the title to the shares to the assignees in bankruptcy 
of the shareholder: Ex parte Harrison, 3 Mont. & A. 606. Here, however, 
it is clear that there was superadded to the ordinary functions of a direetor 
the further duties of a general manager for the corporation. He was him«Alf, 
therefore, the proper officer to receive notice of the assignment.. 

KonoB TO Casshier ov Bakk. — ^The cashier of a bank is its general execu- 
tive officer in conducting its pecuniary operations and managing all its con- 
oems except such as are committed peculiarly to the bank directors: lUckner 
T. Bank qf United States, 8 Wheat. 338; Bank of Pennsylvania v. Beed, 1 
Watts & 8. 106; Angell & Ames on Corp., sec. 300. Therefore, notice to 
him of a prior incumbrance on land mortgaged to the bank Is notice to the 
bank: Trenton Banking Co. v. Woodrvff, 2 K. J. Eq. 117. So^ notioe to him 
of a loan of the funds of the bank deposited in another bank: NtM Hope etc 
Co. v. Phemx Bank, 3 K. Y. 166. So, notioe or knowledge on his part tiiai 
stock standing in the name of a borrower from the bank is held in trust: 
Harridntrg Bank v. Tyler, 3 Watts & a 373; Duncan v. Jaudon, 16 WalL 
166. So, notice or knowledge that a stockholder has pledged his stock where 
a'note of such stockholder is subsequently discounted by the bank: Bank oj 
America v. McNeil, 10 Bush, 64. So, knowledge that the indorsement of a 
note in the name of a partnership was fraudulently made by one of the part- 
ners to pay his separate debt: Fall Bvoer Bank t. StwrtevatnJt, 12 Cush. 372. 
So, notice by a surety on a note held by the bank to sue the principal: Bank 
qfSt. Mary's v. Mun^ord, 6 CkL 44. So, notioe by a debtor of the bank of 
his acceptance of certain modifications of a proposition by him to pay his 
debt in state bonds: Branch Bank at HvntsviUe v. Btede, 10 Ala. 916. 

Notice to Othbb Aobnts ov Pbivatb Cobpobationb.— The treasurer of a 
corporation, being held out to the world as the proper agent to whom a pay- 
ment to the corporation is to be made, is to be deemed also the proper agent 
to whom to give notioe of the purpose for which such payment Is made: New 
England Car Spring Co. v. Union India Buhber Co., 4 Blatchf. 1. Notice of 
non-acceptance or non-payment of a draft drawn by an officer of a corporation 
having authority to draw such drafts may be given to such officer: Conro ▼. 
Port Henry Iron Co., 12 Barb. 27. The principal manager of a bank, whether 
he be the president, a director, or other officer, having supervision and gen- 
eral control of its aflEairs, hlB knowledge that an acceptance discounted by the 
bank was fraudulently obtained is, of course, notice to the bank: In rs 
Carew*s Estate Act, 31 Beav. 39. The transfer agent of a corporation Ib the 



Sept 1840.] B'k of PrrrsBDfiaH t;. Whiteheai). 199 

proper agent to reeeiye notice of transfers of stock. His knowledge, there- 
fore, thoiifi;h priTtttely obtained, as to a particular transfer of stock, is notice 
to the c orp or ation so as to render it liable for permitting a subsequent trans- 
fer to another party: Bridgepcri Bank v. New Ycrk etc. R, R, Co,, 30 Conn. 
231; New Tcrk etc. R. R, Co, t. Sekuyler^ 34 N. T. 31. The transfer agent 
acts officially in snch a case in making the subsequent transfer. Notice to the 
master of transportation of a railway company, who has authority to employ 
and discharge oondnctors, respecting the incompetence of a particular conduc- 
tor, is notice to the corporation: PiUtburgh etc, R, R, Co, v. Rvby, 38 Ind. 
294. So notice to the superintendent of a mining company respecting the un* 
safe condition of the roof of the mine, in an action against the company for 
negligence, whereby one of its servants was killed, is admissible as evidence 
of notice to the corporation: Qukncy Coal Co, v. Hood, 77 IlL 63. So notice 
given to the engineer of a bridge company by contractors, oonoeming an al* 
teration in the structure, is deemed notice to the company: JktnoiUe Bridge 
Co, Y, Pomroy, 16 Pa. St. 161. The knowledge of an insurance agents 
thxongfa whom an insurance in eflfocted, of facts material to the risk, consti- 
tates notice to the insurance company: May on Ins., sees. 132, 142; CampbeU 
V. MerehoLfdi In$, Co., 37 N. H. 86; People^s Ine. Co, v. Spencer, 63 Pa. St. 
853; CcrnAe ▼. Shreiodmry MvJt. fire Ine. Co,, 34 N. J. Eq. 403; Brink v. 
MerehamU^ Ine. Co., 49 Vt 442; Real r. Park /ns. Co., 16 Wise 241 ; May v. 
BuekeyB Mvl. Ins. Co., 25 Id. 291; Humphry v. Hartford F\re Ine. Co,, 15 
Blatchf. 604; OaviMoek v. MamufaOMarenf Ins. Co., 43 U. a Q. B. 663. As, 
where the agent has knowledge of facts respecting the titie which are not 
stated in the application: Mar$haU ▼. CohmUnan Mvl. Fire Ins. Co., 27 N. H. 
167; Van Sehokk ▼. Nkigairal^ Ins. Co., 68 N. Y. 434. So where the agent 
has knowledge of faate not stated rsspecting the condition of chimneys, and 
as to the building containing a steam-engine or that petroleum is kept therei 
Simmons v. Inswrmee Co., 8 W. Va. 474; Campbell v. Merchants' Mrs Ins, 
Co., 37 N. H. 36; BenneU v. N B. A M. Ins, Co,, 81 N. Y. 273. So, also, 
notice to an insurance agent of other or subsequent insurance on property in- 
sured in his company, i» notice to the company: Putnam v. Commercial Ins, 
Co., 18 Blatchf. 868; Schenck v. Mercer Co. etc Ins. Co., 24 K. J. L. 447; Hay* 
ward V. National Ins. Co., 62 Mo. 181; Brandvp v. 8L Pand Ins, Co,, 10 Ins. 
Lb J. 228; S. C, 27 Minn. 393. But notice of other insurance is not effectual 
under a condition requiring consent to be indorsed on the policy, unless such 
notioe is given to an agent authorized to act upon it by canceling the polity or 
indorsing oonaent on it: Hendriekson v. Queen Ins. Co., 30 U. C. Q. R 108. It 
is not necessary, however, to multiply cases on this subject. Where a cor- 
poration has two agents or managers of its business of equal power and 
authority, notice to one is constmotive notice to the other, and therefore is 
notice to tha corporation : Perry v. Simpson WaterproqfM/g, Co. , 37 Conn. 620. 

KoncB TO A Stockholdib in a corporation respecting any corporate busi- 
ness, it is well settied, is not notice to the corporation, because a stockholder 
is in no sense an agent of the corporation: Ang. & Ames on Corp., sec 308; 
1 DilL on Munic. Corp., 3d ed., sec. 306, note; Housatonie Bank v. Martin, 
1 Meto. 294; UnUm Canal v. Loyd, 4 Watts & S. 393. 

NoTiGB TO OvFiGXB OR AaxNT ov MUNICIPAL CoBPOifcATioN.— In order 
to give efifoctual notice to a municipal corporation, such notice must, as in 
other cases of notice to agents, be communicated to an officer who has some 
authority and duty with respect to the subject-matter of the notice. Notice 
of a nuisance, for instance, on city property in Boston, if given to the mayor 
is notioe to the corporation; but if given to the city derk it is not sufficient; 



200 Elliott t;. Powell. [Pemt 

for the mayor has anthority to act in the premiaei* whfle the olerk haa not: 
NkhoU V. CUy qf BaUmf 98 Mam, 89. Notice to one of the tsoj^tamaan of 
a town of a defect in a bridge under their care and raperintendenoe ii notioe 
to the town: Jaquith v. Town qflthaetn, 37 Wia. 106. Inan action by an at- 
torney for compensation for hia eenricea in a snit brooght on behalf of a 
■chool diatricty the mere knowledge of the oflSoers and Yotere of the diatrioti 
of the pendency of the rait, where thoee who receive the notice have no dnty 
to p e r form in the premi>ei» it not notice to the district: Hammgkm ▼. SuA 



Elliott v. Powell. 

[10WAns»i58.] 

TBsaPAflnB SowDTO Whbat on Land oav not MAJHtTAXx BxnMwa 
against the tme owner, who enters into actual poa ae a o ion and cnts the 
grain. Therefore, in replevin brought for cutting grain sown by the 
plaintiff on land in his possession, evidence is admissible on the part of 
the defendant to show that he was the real owner of the land, and as 
such entered into possession and took the crop, and that the plaintiff wss 
merely a trsspaaser. 

TnjM TO Bbaltt mat be Trud Iitoidbiitallt or Bhflkviv or other 
transitory action. 

Ebbob to Butler county common pleas, in an action of re- 
plevin for certain wheat. The plaintiff having proved that he 
cleared and fenced the land, planted the wheat, and waa in pos- 
BCBsion, and that the defendant entered and took away the crop, 
the defendant offered to show that he was the real owner of the 
hmd, and as such entered into possession and harvested the 
crop, and had since remained in possession, and that the 
plaintiff was merely a trespasser, which evidence was rejected^ 
and the defendant excepted, and, after verdict and judgment 
for the plaintiff, brought error. 

Oibnore, for the plaintiff in error. 

Purviance, for the defendant in error. 

By Court, Booebs, J. The right of property iii a chattel, 
which has become such by severance from the freehold, can not 
be determined in a transitory action. Hence it has been ruled 
in Powell v. Smith, 2 Watts, 126, that replevin would not lie for 
fixtures separated and removed from a mill. In that case, and in 
MOher v. IHnUy Church, 3 Serg. & R. 509 [8 Am. Dec. 663]; in 
Baker v. EovjeU, 6 Id. 476, and in Broxjon v. CcUdtoeU, 10 Id. 
114 [13 Am. Dec. 660], it is ruled that a transitory action does 
not lie by one not in the actual possession of land, although he 



^pi 1840.] Ellioit u Powell. 201 

may haye a good title against one who is in the actual possession, 
<daiming title, to detennine the right to the product of the soil. 
The xemedy is, for the reason therein clearly stated, by action of 
'ejectment for recoreiy of the land itself, and by action for mesne 
profits. The difficulty here is in the application of those prin- 
•eiples to the &cts of the case. The defendant in replevin of- 
fered to prove title to the locvs in qTio, that he entered on the 
premises, which was his freehold, and out and carried avmy the 
.grain, for which the replevin is brought. We are of opinion that 
the evidence was admissible, because, if true, it is a flatbar to the 
4Ustion. It would show that the locus in quo was his freehold, 
fiiat by the entry the possession of the plaintiff was divested, 
jmd the defendant vras reinstated in the possession of the prem- 
ises. In AUemas v. Campbell, 9 Watts, 28, the chief justice, in 
-deliyering the opinion, and in this he is supported by authority, 
says, *' an entry puts the owner for a time in the actual posses- 
sion.'' And for this reason it was ruled that an entry on land 
-animo domandi vrill avoid the operation of the act of limitations. 
By the entry of the owner claiming right, and the severance of 
ihe grain, it becomes, as a necessary consequence, his goods and 
•chattel; the incident follows the principle as the shadow does 
the substance. It can not be denied that, if the plaintiff had 
brought trespass quare clausum /regit, on the plea of liberum 
ienementum, and not the general issue, the evidence would have 
been pertinent, because trespass can not lie for an entry on a 
man's own soil. Thus a tenant at sufferance can not maintain 
trespass against his landlord, although violently tamed out of 
possession: Weld v. CoMOen,^ 1 Johns. Cas. 123. If a person 
having a legal right of entry on land, enter by force, though he 
may be indicted for a breach of the peace, yet he is notliable to 
a private action of trespass for damages at the suit of the per- 
■son who has no right; and is turned out of possession: EyaU v. 
Wood, 4 Johns. 813 [4 Am. Dec. 258]. And in 13 Johns. 235,' 
it is ruled that where a tenant holds over the term, and the land- 
lord enters by force and turns him out, he can not maintain 
trespass against the landlord. The remedy of the party ag- 
grieved is by indictment on the statute of forcible entry, and 
not by a civU suit. A tort feasor can not have a civil suit against 
the owner of the freehold in any form which he may devise, 
whether trespass qyuare chxuswm fregU, de bonis asportatis, trover, 
<nr replevin. It will be remarked that this decision accords in 

«11 points vrith the cases cited. If the grain had been sowed by 

* 

1. WUds T. ConUtton. 2. ivti t. /v«. 



202 Case of Phil. & Trenton R R Co. [Penn. 

the plaintiff, who was in the actual possession, reploTin wonld 
lie, and the evidence would have been properly ruled out. But 
by the entry of the tenant of the freehold, he is in possession, 
and the owner of the grain raised on the premises. In the case 
of Brwoe v. Caldwell^ Caldwell was in the actual possession of 
the land, quarried the slate hiinflelf and for others. Bruce, who 
claimed the land, issued his replevin; but this the court held, 
under these circumstances, was not the proper remedy. It is a 
mistake to suppose that the title to real estate may not be inci- 
dentally tried in a transitory action. Cases may be put where 
the greatest injustice would result if this could not be done. 
Judgment reversed, and a venire de novo awarded. 

RxPLEviN AQAism Pabtt dt P088XS810N ov Lavd lOB Tbmms <mt or 
slates taken therefrom does not lie where the defendant's possession is nnder 
claim of title: Brmm v. CaldweUf 13 Am. Dec. 660; Snyder v. Vaux^ 21 Id. 
466. Kor can a disseisee maintain replevin against his disseisor for grdn 
sown by such disseisee, ont and removed from the land by the disseisor: De 
MoU V. Hagerman, 18 Id. 443, and note. The same role applies in trover: 
Wright V. Chiier, aaUe^ 108, and cases dted in the note thereta The principal 
case is recognized and commented on as an aathority on this subject in Hat' 
lain V. Harlan, 15 Fa. St 514, 515. 



Case of FhttiApktiPhta and Tbenton R. R. Go. 

[6 Whabxoh, 35.] 

CiBTiOBABi BUNG A SuBSTTTUTB Fos Writ OF Ebbor in thoso casos in 
which a writ of error does not lie, is governed by the same rales. There- 
fore no point can be raised, on certiorairi in a road case, which is not ap- 
parent exclusively in the proceedings. 

Location of Railroad bt a Jurt instead of by the company under an 
act authorizing the company to locate the road, such location to be ap- 
proved by the court of quarter sessions upon report of a jury after a 
view, is no ground of objection to the location, for the provision being 
for the benefit of the company it may waive it, or the jury may be re- 
garded as its agent. 

EzcxFTiON DBPBin)iNO ON LITERAL Intkrfrbtation OF Statutb authoris- 
ing the location of a railroad is not to be favored. 

OBJEcmoN that Jurors wxrb not Sworn i^^^^^mt^jng to the general road 
law, under a special statute authorizing a view and report of the location 
of a railroad by a jury of six, is unavailing where the statute prescribe* 
no oath. 

Highways are the Property of the State, subject to its absolute direc- 
tion and control. 

Stbxets of Incorporated Town are Pctblio Highways, and the regn]»- 
tion thereof given to the corporation for corporate purposes is subject to 
the paramount right of the state to provide for a more general and ex- 
tended use of them. 



Dec 1840.] Case of Phil. & Tbenton R R C!o. 203 

LionLATURji MAT AuTHOKizB IiATiNa OT Bailboad in A Strbr without 
p.x>Tiding compensation to the owner of the soil, this not being a "tak- 
ing" of his property, bat merely a change in the nse of the public right 
cf way oyer iL 

••Takino** of Priyatb Pbopx&tt fob Pubuo Use, within the meaning of 
the oonstitational prohibition, refers to a taking of it altogether, and not 
to a mere conseqaential injury. 

MONOPOUXS ABC NOT PBOBIBITBD BT THB CoKSTITUTIOM OT PSKiraTLyANIA, 

and the legislatare may, therefore, grant exdnsiye privileges to a rall« 



OxBinoBABi to the Philadelphia court of quarter sessions to 
ranoYe the proceedings in the location of the Philadelphia and 
Trenton ndlroad on certain streets, under a special act of the 
legislatare passed March 22, 1889. The act, in substance, au- 
thorized the company to locate and construct a railroad " from 
their depot in the district of Kensington to their depot at the 
comer of Third and Willow streets in the district of Northern 
Liberties by the best route along the streets between said depots^ 
and for that purpose to occupy such street or streets as shi^ be 
most beneficial and convenient; which location, before the con- 
struction of said road, shall be approved of by the judges of 
the court of quarter sessions of Philadelphia, upon the view of 
six disinterested jurors, to be appointed by said court as di- 
rected, who, on being applied to, are hereby required to act in 
the premises,'' etc. The court appointed a jury on February 1, 
1840, as required by the act, and authorized notice to be given 
by newspaper advertisement of the time and place of their meet- 
ing. The jury made their report on February 11, 1840, setting, 
out their proceedings, and concluding that the jury " do hereby 
make the following location under the provisions of the said 
aci." Numerous exceptions to the report were filed, which it is. 
deemed unnecessary to set out. Depositions were taken in sup- 
port of and in opposition to the exceptions, and after argument 
the exceptions were dismissed and the report confirmed, where- 
upon the proceedings were removed to this court by certiorari 
and numerous errors were assigned. Those which the court 
deemed material are sufficiently stated in the opinion. 

Kennedy and J. B. IngersoU, in support of the exceptions. 

AHaUery and Meredith, for the company. 

By Ckmrt, Gibson, C. J. A certiorari lies in all judicial pro- 
ceedings in which a writ of error does not lie; and being a sub* 
stitute for a writ of error, it is governed by the same, or strictly 
analogous, principles: consequently no point can be raised on it 



204 Case of Phil. & Tbenton R R Co. (Tenn 

'which is not apparent exdnsiYely in the proceedings remoTed 
bj it. Though not peculiar to road cases, this principle was 
enforced in the ca»e of the SchwyUeUl Fails Boad, 2 Binn. 250, of 
Perm's Orove and Concord Road, 4 Yeates, 872, and of Spring 
Oarden Street yiiBsMley 194, in all which this court refosed to enter 
into the merits, or to decide facts on deposition. One exception 
alone has been made to it. In the caee of the BaUimare Ham- 
pike, 5 Binn. 484, evidence was heard in support of the proceed- 
ings on a point which perhaps did not need it; as all presump- 
tions &Yorable to regularity may be made in consistence with 
the record. The exceptions in the case before us, have been 
framed in disregard of the general rule. In the twenty-six 
points raised by them, I discern few that are legitimate subjects 
of re-examination; and as we sit here, not to settle abstract 
principles, but to determine matters which lie in the course of 
our functions, my first business will be to cast out such of them 
as are not determinable here. 

It is obrious that the fourth, fifth, and sixth exceptions, and 
also the ninth, with its eight specifications, belong to the re- 
jected class. The supposed misleading of parties by the adver- 
tisement; the alleged misconduct of the jury in refusing to hear 
the owners of property and their witnesses in support of their 
objections and claim to damages, are matters that do not appear 
by the record: by reason of which, even were there substance in 
ihem, we would be compelled to dismiss them. We do not find, 
however, that the act by which the proceeding was directed, 
authorized the jury, or any one else, to assess damages; and ob- 
jections to the route on the ground of policy or convenience, 
they were to determine, not on the testimony of witnesses, but 
on their own view, as was decided in JohnsovCs case, 2 Whart. 
277. The judges of the quarter sessions, as they had not viewed, 
might indeed have satisfied themselves of the propriety of the 
location by the information of others; but that they were satis- 
fied without it, is not ground of error examinable here. The 
ninth exception, also, with its specifications, by which is alleged 
that the reported route agrees not with the directions of the act, 
depends on facts of which we judicially know nothing; nor 
would they perhaps avail the exceptants if they were properly 
before us. We perceive not that the act requires the assent of 
the districts to the location; nor did it appear on the diagram 
exhibited at the argument that the road is not laid upon streets 
between the depots; and that it is not another railroad upon an- 
other route; or that it is partly on private property. It may, as 



Dec. 1840.] Case of Phil. & Tbenton R R Co. 20& 

alleged, be parUj on the track laid down under an agreement 
with the district of the Northern Liberties; but what of that ? A 
part of that itack may, notwithstanding, be on *' the best route 
along the streets between the said depots;'' and the act requirea 
no more. As to its being laid on the track of the Northern 
Liberties and Penn township railroad, the interference might 
be made a subject of complaint by that company, but certainly 
by no one else; and the complaint could be heard only by tho 
court below, no other tribunal haTing power to iuTestigate the 
facL 

The same remarks may be applied to three specifications of 
the allegation contained in the tenth exception. Of contracts 
made 1^ the company with the exceptants or the Northern 
Liberties and Penn township railroad company, we judi- 
cially know nothing; and we can not test the constitutionality 
of the statute by an allegation. of matters which can not legiti- 
mately appear in the proceedings or in our paper books. From 
the copies furnished, they api>ear to be contracts for priyileges 
purchased in other streets; and the law does not disturb them. 
If they bound the company originally, they bind it still, and the 
parties may still haye an action for any breach of the company's 
engagements. None of these matters, however, are subjects of 
revision by us; and I turn to those which properly belong to us, 
premising that most of them may be dispatched in a few words. 

The first exception — ^that the jury of view was not appointed 
porsuant to an authorized application by the company — seems 
not to be founded in fact. They were appointed on the motion 
of the company's solicitor; and were it not so, the manner of 
the appointment is a matter to which the exceptants can not 
make objection, since the company's ratification of the ap- 
pointment by claiming under it, is equivalent to a precedent 
authority. 

The second is, that the road was located by the jury instead 
of the company. In the act it is said that the company shall 
locate, and that the court may approve on a jury's report; but 
how the inhabitants could be prejudiced by aUowing the act of 
location to be performed by the jury instead of the company's 
officers, has not been shown. It is not to be credited that the 
jury would be less disinterested and regardful of '* the public 
business, trade, and private property" of the inhabitants, then 
the company itself would be. It was the privilege of the com- 
pany to make the location by its officers; and in surrendering it 
to the jury it renounced a benefit provided for it, which a com- 



206 Cask of Phil. & Trenton R R Go. (Teim. 

men law maxim too trite to be repeated, authorized it to do. 
Eyen were that not so, the jtiiy might be considered as its 
agent, haying made the location bj itiai direction, as evidenced 
by its subsequent ratification of the act. The question before 
the court, howeyer, regarded not the paternity of the location 
but the propriety of it. Not only the court, but the jury "were 
to be satisfied of the propriety of the latter; and it is not 
probable that the jury would haye been as well satisfied with 
the propriety of any other, as with their own. The exception 
at best depends on a literal interpretation; and it is not to be 
fayored. 

The third is, that the juiy were not sworn by the authority of 
the court, or in the terms prescribed by the law. What terms? 
The act itself prescribed none: nor did it direct the jurors to be 
sworn at all. And yet it is stated in the report that they were 
sworn or a£Srmed according to law; and as nothing in the record 
contradicts it, we are to take it as it is stated. It was provided 
that the jury should be appointed ** as directed" — and here the 
sentence was left incomplete by the omission of something in- 
tended to haye been subjoined; but what that was, can not be 
conjectured. In the ca»e of Adelphi Street, 2 Whart. 176, a 
proceeding to vacate a street, was held to be within the purview 
of a preceding section to vacate a particular alley, which was 
directed to be in the usual manner; and this on the ground that 
there were general principles of practice in laying out and vacat- 
ing streets, to which the legislature must have referred. That 
practice, however, has no relation to the proceeding before us, 
which is swi generis. That it was not intended to be regulated 
by the road law, is clear, from the fact that no petition for a 
view was required; nor was there to be an order to view, because 
the juiy were to act on being applied to, and consequently with- 
out a particular mandate. As then no oath was prescribed, it 
is not neoessaiy that the jurors should have been sworn at all; 
and this disposes also of the eighth exception, that the court 
had not aUowed, in conformity to the general road law, two full 
terms betwixt the appointment of the juiy and the confimation 
of their report. 

The remaining exception is more important, because it calls 
in question, for specific reasons, the validity of the statute 
which is the foundation of the proceeding, and which is said to 
be unconstitutional because it impairs the obligation of con- 
tracts; by violating the chartered rights of the districts of 
Spring Garden and the Northern Libertiee; by violating the 



Dec 1840.] Cask op Phil. & Tbenton R. R Co. 207 

contract under which the right of passage is assured to the in- 
habitants of this particular street; by taking the property of 
the street "without compensation to the districts or individual 
proprietors; and by monopolizing the street in derogation of the 
public and private uses to which it had been applied. This, 
perhaps, is the substance of all these multi&rious specifications. 

What is the dominion of the public over such a street? In 
England, a highway is the property of the king as |>arf?n8paM(F, 
or uniyersal trustee; in Pennsylvania, it is the property of the 
people, not of a particular district, but of the whole state; who, 
constitaiing as they do the legitimate sovereign, may dispose of 
it by their representatiyes, and at their pleasure. Highways, 
therefore, being universally the property of the state, are sub- 
ject to its absolute direction and control. An exdusiye right 
of ferriage across a navigable stream, which is a public high- 
way, is grantable only by it; and the navigation of the stream 
may be impeded or broken up by it at its pleasure. In the con- 
struction of her system of improvements, Pennsylvania has 
acted on this principle. Her daons across her principal rivers 
to feed her canals, have injured if they have not destroyed the 
descending navigation by the natural channels; and this with- 
out a suspicion of want of constitutional power. The right of 
passage by land or by water, is a franchise which she holds in 
trust for all her citizens, but over which she holds despotic 
sway, the remedy for an abuse of it being a change of rulers and 
a consequent change of the law. No person, natural or cor- 
porate, has an exdusiye interest in the trust, unless she has 
granted it to him. Her right extends even to the soil, being an 
equivalent for the six per cent, thrown into every public grant 
as compensation for what may be reclaimed for roads; and she 
has acted on the basis of it; for though damages for special in- 
juries to improvements have been allowed by the general road 
laws, nothing has been given for the use of the ground. This 
principle was broadly asserted in The GommonweaUh v. Fisher, 
1 Penn. 466. 

Such being a highway as a subject of legislatiye authority, in 
what respect is a street in an incorporated town to be distin- 
guished from it? A municipal corporation is a separate com- 
munity; and hence a notion that it stands in relation to its 
streets as the state stands in relation to the highways of its ter- 
ritory. That would make it sovereign within its precincts — a 
consequence not to be pretended. The owner of a town plot 
lays out his streets as he sees fit, or the owner of ground in an 



208 Case of Phil, b Tbenton R. IL Co. (Tenik 

inooipoiated town, dedioates it to public use as a stroet; bat it 
f oUowR not that the dominion of the state is not instantly at- 
tached to it. The general load law extends to eyeiy incoipo* 
rated town from which it is not exdaded by provision of the 
charter; and the statate book is foil of special acts for opening, 
widening, altering, or vacating streets and aUeys in Philadel- 
phia and our other cities. Were it not for the universality of 
the public soTereignty, the public lines of communication, by 
railroads and canals, might be cut by the authority of eveiy 
petty borough through which they pass; a doctrine to which 
Pennsylvania can not submit, and which it would be dangeiouir 
to urge. It would be strange, therefore, were the streets of an 
incorporated town, not public highways, subject perhaps to 
corporate regulation for purposes of grading, curbing, and 
paving; but subject also to the paramount authority of the leg' 
islatuie in the regulation of their use by carriages, rail cars, o/ 
means of locomotion yet to be inyented, and this without dis- 
tinction between the inhabitants and their fellow-citizens els6- 
where. The doctrine was carried to its extent in Bungy. ShoM' 
berger^ 2 Watts, 28 [26 Am. Dec. 95], in which it was affirmed 
that, though a dty has a qualified property in its public squares, 
it holds them as a trustee for the public for whose use the 
ground was originally left open; and that the enjoyment of 
them is equally free to all the inhabitants of the commonwealth, 
subject to regulations not inconsistant with the grant. In Bar- 
ter y. The OommomoeaUh, 3 Penn. 259, it was inadvertently said 
that the title to the soil of a street is in the corporation, whose^ 
right to improve it for purposes which conduce to the public en- 
joyment of it, is exclusiye and paramount to the right of an in- 
habitant. The point was only incidentally involved, and con- 
sequently not very partictdarly considered; but the question of 
title, involving as it has done, no more than the bounds of the- 
grant, has lain between the grantor and the grantee, or those 
deriving title from them. In no case has title been claimed by 
the corporation. 

In the Union Burial Oround Company v. Bobinson^ 6 Whart. 
18, in which the point was elaborately argued, the contest was 
betwixt the grantor and a purchaser from the grantee; and 
though the cause was eventuiJly decided on another ground, the- 
court inclined to think, on the authority of many decisions, that 
the title to the street, even if it had been opened, would have 
remained in the grantor; and such appears to be the principle^ 
of Kirkham v. Sharp, 1 Id. 323 [29 Am. Dec. 57]. The legal 



Dec 1840.] Case of Phil. & Tbenton R R C!o. 209 

tide to the ground, therefore, remains in him who oTmed it be- 
fore the street was laid out; but even that is an immatflrial con- 
sideration; for an adverse right of soil could not impair the 
pnblio light of way over it, or prevent the legislature from mod- 
ifying, abridging, or enlarging its use, whether the title were in 
the corporation or a stranger. I take it then that the regulation 
of a street is given to a corporation only for corporate purposes, 
and subject to the paramount authority of the state in respect 
to its general and more extended uses; and that there would 
have been no invasion of chartered rights in this instance, even 
did either of these districts stand in a relation to the public, 
which would impart to its charter the qualities of a compact. 

What then is the interest of an individual inhabitant asasub- 
jeot of compensation under the constitutional injunction that 
private property be not taken by a corporation for public use 
without it? Even agreeing that his ground extends to the mid- 
dle of the street, the public have a right of way over it. Neither 
the part used for the street, nor the part occupied by himself, is 
taken away from him; and as it was dedicated to public use 
without restriction, he is not within the benefit of the constitu- 
tional prohibition, which extends not to matters of mere annoy- 
ance. The injury of which he can complain, is not direct but 
consequential. It consists either in an obstruction of his right 
of passage, which is personal; or in a depreciation of his prop- 
erty by decreasing the enjoyment of it: but no part of it is 
taken from him and acquired by the company. The prohibition, 
even when it precluded a seizure of private property immediately 
by the state, was not largely interpreted, nor was there reason 
that it should be, as ample compensation was obtained from her 
sense of justice without it. The sufferers were overpaid* and 
this sort of aggression was always courted as a favor. But 
though she usually compensated consequential damage, it was 
of favor, not of right. Nor did she always make such compen- 
sation. In one well-known iostance, she destroyed a feny by 
cutting off access to the shore, without provision for the sufferer; 
and in the Gommonweatth v. Bichtery^ 1 Penn. 467, damages 
were unavailingly claimed from her for flooding a spring by a 
dam. The clause in the amended constitution which narrows 
the former prohibition to a taking of private property for a pub- 
lic use by a corporation, is to receive the same construction; the 
word ** taking" being interpreted to mean, taking the properly 
altogether; not a consequential injury to it which is no taking 

Am. Dsol Vol. XXXVU~U 



210 Case of Phil. & Teenton R R Co. \T?&an. 

at all. For compensation of the latter, the citizen must depend 
on the forecast and justice of the legislature. 

On the subject of the nest specification, it seems scarcelj 
necessary to say that monopolies are not prohibited by the con- 
stitution; and that to abolish them would destroy many of our 
most useful institutions. Every grant of privil^e so far as it 
goes, is exdusiye; and every ezclnsiye privilege is a monopoly. 
Not only is every railroad, turnpike, or canal such« but every 
bank, college, hospital, asylum, or church, is a monopoly; and 
the ten thousand beneficial societies incorporated by the execu- 
tive on the certificates of their legality, by the attorney-general 
and judges of the supreme court, are all monopolies. Nor does 
it seem more necessary to remark, on the subject of the conclud- 
ing specifications, of exception to the confirmation of the report 
by the associate judges of the sessions alone, that the approval 
wasanactof the court; and that they ware competent to hold it. 

Proceedings affirmed. 

Cebtioba&i, What mat bb Bbviewbo on: See the note to Dmggtn t. 
JieOruder, 12 Am. Deo. 532. 

Stbrkts, Powbb or Municipal Cobfobation oveb: See Hwmu ▼. i/oyor 
qfKnoxvUUf 34 Am. Deo. 657, and oases dted in note. That streets and 
other pnblio highways are sabjeot to the paramount control of the state, is a 
point to which the principal case is dted in Soutkwark R, R. Co. y. PhUo' 
ddphia, 47 Pa. St. 321. 

CoicpENiiATioN voB Land Takbn vndbb Powbb OF EiONXNT DoKAiN: See 
the note to Bloodgood ▼. Mohawk etc R, R, Co., 31 Am. Dec. 372. See also 
Thompson y. Chrand OuifR. A B. Co,, 34 Id. 81. As to the appropriation of 
property for laying out a railroad, see WhiUmaxCt Eaix v. W^winqUm tic. R, 
R, Co. , 33 Id. 410, and cases dted in the note thereto. The owner of a limited 
interest in property taken by eminent domain is entitled to compensation to 
the extent of his interest: See Be parte Jennings, 16 Id. 447. "Taking" of 
priyate property for public purposes, within the constitutional prohibition, 
means ^e absolute appropriation of it: Afonongahela Navigation Co. v. Coons, 
6 Watts & S. 11*3; Watmm v. Pittsburgh etc R. R. Co., 37 Pa. St. 479. A 
property owner is therefore not entitled to compensation for merely conse- 
quential injury from the making of a public improyement: 0*Connor y. Pitts* 
burgh, 18 Pa. St. 189; Sunbtary etc. R. R. Co. y. ffummeO, 27 Id. lOi; Bran- 
mm y. Philaddphiti, 47 Id. 332; Delaware etc. Canal Co. v. MeKeen, 52 Id. 
125, all citing the prindpal case. 

POWEB TO AVTHOBIZB LaTINO OF RaILBOAD IN PUBUO StBBXT: See Z/€aB- 

ingUm etc. R. R. Co. v. AppUgate, 33 Am. Dec. 497, and note. To the point 
that the legislature has power to authorize the laying of a railroad in the 
streets of a dty without providing for compensation to the corporation or to 
the owners of the soil, the principal case is cited in Henri/ y. Pittsburgh etc. 
Co., 8 Watts &;S. 87; Jlercer v. PiUsburgh etc. R, R. Co., 36 Pa. St. 104; 
Commonwealth y. Eirie etc. R. R. Co., 27 Id. 354; Snyder v. Peningffloania R» 
U. Co., 55 Id. 344; Cleveland etc. R. R. Co. v. Speer, 56 Id. 332. 



Dec 1840.] Churchman v. Sboth. 211 

Railboad Dbsmid a Pubuo Hiohwat: See the note to Beekman ▼. iSara- 
ioffa etc. R. R. Co., 22 Am. Deo. 095. See also Lexmffton etc. R. R. Co. ▼. 
Apfitgale^ 33 Id. 497* and oases dted in the noto thereto. See also RtUhbons 
▼. 7*ioga NavigcUion Co., 2 Watts & S. 79, dting the principal ease. 



Ghubchiian v. Smith. 

[6 Wbabxoh. 146.) 

8oox or BiTTRiss Maxifsstlt Erased axd Altered in a material point* 
Qiilflas explained so as to do away with the presumptions against it exist- 
ing on its face, should not lie admitted in evidenoe. 

Svnuxs MADE BT Clerk axd Gabter, who Deli vera Qoodb, fxom hia 
mamonuida immediately upon his retom from making suoh deUrery, »• 
original entries. 

AauNCB or iNSTRircnoNS not SpsoincALLT Prated for is not error. 

Ebbob to Delaware county common pleas in an action of as- 
mmpsit brought against the defendants as partners. Pleas, 
non assumpsU, payment, etc. The principal question was as to 
the admissibility of a certain book of original entries offered in 
evidence by the plaintiff, and admitted against the objections of 
the defendants, who thereupon excepted. Exception was also 
taken to the charge of the court; but as the objections thereto 
are not particularly noticed by the supreme court, we deem it 
unnecessary to set them out. For the same reason the numerous 
errors assigned by the defendants, after verdict and judgment 
against them, are also omitted. 

Reed and DaUaa, for the plaintifib in error. 

Sterigere and Edwards^ for the defendant in error. 

By Court, SEBaBAirr, J. The errors in this case have been need- 
leesly multiplied and subdiTided into a great variety of heads, cal- 
culated rather to confuse and perplex the case than to aid the 
investigation of it. On the argument here they have been very 
properly reduced to a few points, which embrace all that is 
material. Books of entry, supported by the oath of the plaint- 
iff himself, are a peculiar species of evidence, not now admit- 
ted by the English law, but introduced into usage in this coun- 
try at an early period, either from the necessity of the case, as 
we find it stated in our books, or in analogy to the civil law, by 
which a man's own books of account, with the suppletory oath 
of the merchant, amount to full proof. The provisions of the 
civil law on this subject are explained in 3 Bl. Com. 868 and 



212 Chubchbian v. Shttel [Penn. 

870; and ibe statate 7 Jao. 1., c. 12, in its preamble and enact- 
ments, shows that at one time in England, books of entries 
were evidence at common law. This statate confines this spo- 
cies of proof to transactions that have happened within one 
year before action brought, unless between merchant and 
tradesman in the usual intercourse of trade. It was decided by 
Holt, 0. J., notwithstanding this statute, that a shop-book was 
not evidence of itself within the year: Pitman y. Maddox, Salk. 
690. But whatever may be the origin of the practice here, it 
has become firmly fixed and settled, as a general rule, that 
books of entries are evidence to prove goods sold and delivered, 
or work done. It has, however, always been kept by the courts 
within prescribed bounds, and various modifications and re- 
strictions imposed, to g^uard against the abases which the ex 
parte acts of a person interested might otherwise lead to. Of 
these the courts have themselves been the judges before they 
would permit the book to go to a jury, and they have con- 
sidered it as a species of evidence which ought not to be ex- 
tended beyond its ancient limits, and that a strict hand is to be 
kept over it: Thompson v. MoKdvy^ 18 Seig. k B. 127* In thai 
case, scraps of paper, containing some scribbling or figuring on 
them, besides ttie account of sales of the goods, were rejected. 
So, where they are not made at or near the time of the transao- 
tion, they are inadmissible: Gurren v. Grawford^ 4 Id. 5. They 
are not admissible to show a collateral ^ct: JuniaJta Bank v. 
Braum, 5 Id. 226. These and various other regulations have, 
from time to time, as the points occuzzed, bean adjudged as 
necessary to keep this sort of evidence within reaBonaUfr 
bounds. 

In the case before us, the plaintiffs book of entries has been 
shown to us on the argument here, and it is obvious that there 
has been an erasure and alteration of the account against ths 
defendants, and that in a material part; and it is left upon the- 
evidence wholly without explanation. The heading of the ac- 
count, ** Boberte & Co. Dr.," seems clearly to have been written 
upon an erasure of some prior heading; and in another entry ia 
the account of May 28, 1888, the same thing occurs. The head- 
ing of the account is in this case very material; it concerns, 
indeed, the main point in issue, whether the defendants were in 
partnership. A book of entries, manifestly erased and altered 
in a material point, can not be considered as entitled to go to 
the jury as a book of original entries, and ought to be rejected 
by ttie court, unless the plaintiff gives an eq;danation, which 



Dec. 1840.] Chubchman v. Smith. 213 

does away irith ibe presumption which must exist on its face. 
To allow such a book to go to a juiy would subject this sort 
of evidence to the danger of great abuse, and tempt dishonest 
men to commit frauds by altering books, so as to adapt them to 
cizcumstances; whereas such book should be a Mthful record 
of transactions as they occur, and be pure and free from sus- 
picion on its face; or if altered, some explanation should be re- 
quired. There maybe cases, undoubtedly, where the rule may 
operate seyerely; but, on the other hand, it is one which the 
safety of the community seems to us to require, and one which 
is necessary to keep this species of CTidenoe within its proper 
and accustomed limits. The other objections to the book do 
not seem to be supported by the evidence given. The only en- 
tries in the book relating to claims for whichreceipts were given ' 
by the carters, are proved by the plaintiff to have been the two^ 
which the court excepted. The other entries may consequently 
have been made from memoranda, by Beid, the clerk,- who also 
acted as carter; and if after delivering the powder himself, he 
made entries in the book from his memoranda, the book would 
be evidence. It vrould also seem inferable from the evidence 
that these entries were made by Beid on his return home, 
which would be in season. This' disposes of the first and sec- 
ond errors. 

The third error is improperly assigned, there being no bill of 
exceptions. The ninth, eleventh, and twelfth errors are to the 
ehaige of the court, and we think they are not sustained. It is 
hardly possible for any court to charge in such language as to 
comprehend every possible point of view in which the case 
might be put, or to notice every exception to the general rules 
of the law. If the party wishes an explicit answer in relation to 
any particular point, it ought to be brought to the view of the 
court directly. 

Judgment reversed, and a venire/aoias de novo awarded. 



B00K8 OF EirraT ab EvmxKOB: See the note to Union Bank v. Knapp, 15 
Am. Dec 191; see also MtrriU ▼. Iiha4M etc B. B. Co,, 30 Id. 190, and 
Sidiea v. JI£€Uhert 31 Id. 521, and other oases in this series oited in the notes 
thereto. That erasnres and interlineations nnezplained will render a book of 
eatrifls inadmissible as evidence, is a point to which Churchman v. Smith is 
cited in ffvditm v. Bed, 5 Pa. St 282, and Funk v. Ely, 45 Id. 448. 

Absbitob of iBSTRUonoNS NOT AsxKD 18 not error: Bums ▼. ISutheriand, 7 
^ St 108; CfaUieon v. Cattiapn^ 22 Id. 277> both citing the principal 



214 Edgell v. McLaughlin. [Peon. 



Edgell v. MoLaughlin. 

[6 Whaxtov, 178.] 

MoRY Won upov a Waosb xb kot Biooyxrabli in 'BvamfinxitL Tb&n' 
fora, AH action npon a oheok ahown to have been given in poxMiMioe of » 
bet» oan not be maintained. 

Ebbob to the Philadelphia district court in an action npon a 
check diawn bj the defendant npon the Philadelphia bank in 
&Tor of one Ck)mf ort or bearer. Plea, non ossumfMity etc. The 
check ma prored, and also the refoaal of the bank to pay it, hj 
direction of the defendant. The defendant was pennitted to 
prove, against the plaintiff's objection, that the check was pot 
into Oomforfs hands in pursuance of a wager between the 
plaintiff and defendant, as to whether or not the defendant had 
written a certain letter, the plaintiff having also deposited his 
check for the same amount. The plaintiff proved the writing of 
the letter mentioned in the wager. The court chaiged the juij 
that this was an ** idle and trifling wager," and directed a verdict 
for the defendant. Verdict accordingly, and judgment thereon, 
which the plaintiff now sought to reverse, alleging error in the 
admission of the evidence offered by the defendant and in the 
charge of the court. 

Kennedy and 8t, Oeo. 21 OampbeU^ for the plaintiff in error. 

McLaughlin, for the defendant in error. 

By Court, Ssbobant, J. Courts of justice are instituted to 
determine the disputes among men, necessarily arising from their 
existence together in society. The time and labor of a large 
class of its citizens are devoted to the adjustment of these dis- 
putes at a great expense to the community; and this class is as 
necessary to the welfare of society as the existence of any of the 
occupations in which men do for others what they can not do for 
themselves. But in the innumerable contentions that human 
afiEEurs originate, there is sufficient to engross the time and labor 
of its tribunals, without occupying them in the investigation of 
gratuitous contests, such as wagers; which flow sometimes from 
a spirit of gambling, sometimes from heat of passion, and some- 
times from folly and indiscretion on the one side, and stratagem 
and cunning on the other. Hence the more intelligent judges 
of modem times have revolted at examples of this sort of suit, 
which have been sustained in a court of justice; such as that in 
5 Burr. 2802,^ of two sons wagering on the lives of their fathers; 

1. Earl ^ Monk Y.Pigot. 



Dec. 1840.] Edgell u McLAuaHLiN. 216 

and othdr jadges have undertaken to lefose to try subh suits, on 
the gronnd that the wager was impertinent or f rivolons, and have 
turned the plaintiffs out of court. In many other instances, 
nice and ingenious distinctions have been sought to get round 
the general principle, and to defeat the plaintiffs recovery, till 
the exceptions are now so many that it requires some effort of 
mind to fancy a wager which might be free from the exceptions 
to the rule, considering the strong feeling which leads modem 
courts to struggle against this sort of action: See Selw. N. P. 
1086, chapter on Wagers. 

Fortunately, however, ior us in Pennsylvania, there is no de- 
cision in its highest tribunals, that a wager is recoverable; and 
the only authority that exists on the subject is expressly in 
point to the contrary. In PrUcheU v. Ins. Co. N. America, 8 
Teates, 458, it was held, in the year 1808, that a policy of in« 
Burance in which the insured had no interest, was a wagering 
p^ilicy, and as such was void. It was at the same time admitted, 
that the stat. 19 Geo. n., prohibiting these policies in England, 
did not extend to this state; nor could it by the settled rules as 
to the construction of English statutes enacted prior to the revo- 
lution. On no other ground could the case have been so held 
than the common law of Pennsylvania, by which wagers were 
considered contrary to its genius and policy, and not recover- 
able by action in a court of law. " Every species of gaming 
contracts,'' says Mr. Justice Yeates, delivering the opinion of 
the court, " wherein the insured having no interest, or a color- 
able one merely, or having a small interest much overvalued, in 
a policy, under the cloak of insurances, is reprobated by our 
law and usage." 

The next case and the only other in which the point was con- 
tested in this court, is the case of Fhillips v. Ives, 1 Kawle, 458,' in 
which the defendant bet that within two years Napoleon Bona- 
parte woidd escape or be removed from the island of St. Helena; 
and if he died within the two years, the defendant would lose the 
bet. Napoleon died within Ihe two years. Yet it was decided 
by a majority of this court, that the bet was not recoverable, it 
being held that no bet of any kind about any human being, is 
recoverable in a court of justice. This case certainly went a 
great way towards recognizing the doctrine, that no bet or wager 
could be recovered; but it was not necessary then to go so far. 
Mr. Justice Huston, however, expresses his opinion very plainly, 
that though bets were recoverable by the common law of En- 

1. 1 Bawto, 86. 



210 Defeau v. Waddington, [Penn. 

gland, it was not a part of the common law introdnoed into 
PennsjlTania by William Penn or his sacoeBsors, nor xeoognized 
in the act of assembly passed in 1777, which is onr guide on that 
subject. And I folly concur with, him, that it is not. When 
I look back to the character and principles which actuated our 
founders and predecessors, I am satisfied they ne¥er counte- 
nanced such a principle, but left parties who diose to embark 
into contracts of this kind, to recoYer as they could, according 
to the code of honor under which they originated; and that it 
is derogatoiy to the character and injurious to the interests of 
the community, to sanction them, and to employ their legal 
tribunals in investigations, often indecent, often inflammatoiy, 
often impertinent and frivolous, and always useless, if not nox- 
ious in their effects on society. 

Where a wager is but a fiction of law, invented for the trial of 
a right, it has nothing in common with a wager in which there 
is no right in question between the parties. Of course, tiie 
above remarks do not apply to the form often adopted under a 
feigned issue, as the most convenient mode of settling precisely 
the fact averred on one side and denied on the other. 

We concur, therefore, with the court below, that this action 
can not be sustained. 

Judgment a£Srmed. 

Waoebs, VAUDnr of: See lUui ▼. GoU^ 18 Am. Deo. 487| Stoddard ▼• 
Martin, 19 Id. 843; Hoit ▼. Hodgty 25 Id. 451, and 8taU v. SvMi, 83 Id. 132, 
and other oaaee in this seriea cited in the notes thereto. The.prinoipal case 
was approved and followed in j?rua'< AppeaJLy 55 Ba. St. 297. So in Lov€ v. 
Harvey^ 114 Mass. 82, it is cited to the point, that all wagers are illegal. In 
SeoU y. Duifyf 14 Id. 19, it is said, however, that the case only settles the law 
for wagers in PennsylTani% and does not prevent the reooTeiy in that staAe 
of money lent in another state to bet npon an election. 



Dbpbau v. Waddington. 

[0 Wbabtov, 330.] 

HouxBB OF Note Plsdosd as Collatxbal Sboubity for a pre-existing debt^ 
is not deemed a bona fide purchaser for value, who will be protected 
against equities between the original parties to sach note, unless there be 
proof of some new and distinct consideration, such as giving time on the 
pre-existing debt, or the like. 

BzcsANOB OF Collateral SsouBinss is Suffiozent CoKsmxaATiov to con- 
stitute the holder of a note pledged as security for a pre-existing debt a 
bona fide purchaser for value, as where, in conuderation of receiving such 
note as security, the creditor snirenders lus right to the prooeeds of a 



Dec 1840.] Defeau v. Waddington. 217 

bond for a larger amonnt prerioiuly pledged as secnrity for the same 
debt, which he haa delivered to the debtor for the pnrpoee of enabling 
him to obtain payment of it. 
Delay of Maker or Notb Plxdoed as Ck)LLATiBAL SaofTRiTT in giving 
notice to the pledgee, after knowledge of each pledge, that no ooneidera- 
tion was giyan for the note, is a circamstanoe to be considered by the 
jnry in determining his liability. 

Ebbob to the Philadelphia district court, in an action of 
«BSiimx)sit brought by the plaintifTfl, partners under the firm 
name of Ogden, Waddington & Co., against the defendant as 
maker of a note made by him in favor of Bobinson and Smith 
«nd indorsed to the plaintiffs. The facts are sufficiently stated 
in the opinion. The substance of the charge to the jury, so far 
as excepted to, also appears from the opinion, as well as the 
material errors assigned by the defendant, yerdictand judgment 
haringf been rendered against him, which he now sought to re- 
Terse. 

Norri8 <md Halyj for the plaintiff in error. 

Biddle and Ccukoaladery for the defendants in error. 

By Court, Booebs, J. This was an action of assumpsit on a 
promissory note, drawn by the defendant Depeau, in favor of 
Bobinson & Smith, or order, and by them indorsed to the 
plaintiffft. The plaintiffs lent Bobinson & Smith fifteen hundred 
dollars on a note; and as a collateral security, the latter firm 
placed in the hands of the former a bond for twenty-three or 
twenty-four hundred dollars, of a certain Edward Miller to 
Thomas S. Smith, one of the partners of Bobinson & Smith. 
Some time after, Bobinson called on the plaintiffs, and stated that 
he wanted to take the bond away, and to get it discounted. Bobin- 
toon & Smith, a week or so after the delivery of the bond, paid to 
Ogden & Co. eight hundred dollars, and transferred the note in 
suit to them as collateral seciLrity for the amount yet remaining 
due. The plaintifb gave up their claim upon the bond for the 
note and the eight hundred dollars. It seems that the note of 
Bobinson & Smith to the plaintiffs was protested; that one of 
that firm came to the plaintiffs, and stated that they would lend 
him the bond for a day, he had an opportunity of getting the 
money upon it, and would then pay the fifteen hundred dollars. 
The bond was delivered to him for that purpose; but the bond 
was neither redelivered to the plaintiffs, nor was the amount due 
on the note paid according to the understanding between them; 
but some time afterwards — ^how soon is not recollected, nor is it 



218 Depeau v. Waddingtoh. [Pemu 

material— eight hundred dollars in cash were paid, and the note 
in suit was tranafeired to the plaintiffs^ in lien of the bond, and 
as a collateral security for the note. It may be inferred from the^ 
evidence, although no direct proof is given of it, that the bond 
was assigned for a valuable consideration, or paid by the 
obligor: that the money was received by Smith, one of the 
obligees; and that eight hundred dollars were paid of the pnv 
ceeds. Kobinson, of the house of Bobinson & Smith, says, that 
the bond was delivered to the deponent's firm on payment of 
part of the fifteen hundred dollars, upon the understanding 
that the deponents would immediately pay them the balance of 
the amount due; that the object of the firm in getting the bond 
was to have it discounted, and pay the plaintiflB at once; the 
bond being for a considerably larger sum than was due. He 
does not recollect whether the plaintiflh afterwards asked his 
firm for other security, although they may have done so. He 
thinks the note in suit v^as, a few days after the bond was deliv- 
ered up by the plaintiffs, proffered to them, as collateral security 
for the balance due. They handed over the note about a week 
after the bond was delivered up, but after they had secured the 
bond; that is, as I understand it, after they had received the 
money for it. No other, or new consideration was given by the 
plaintiffs for the note. The understanding was, that the de- 
ponent's firm was to pay the plaintiffs immediately the balance due 
them ; that the bond was to be discounted at once for that purpose. 
Nothing was stipulated about the securiiy, because the balance 
was to be immediately paid in cash. The note in suit was given 
for the purpose of being discounted for the sole accommodation 
of Depeau. 

The defendant alleges that there was no consideration for the 
note in suit; that the transfer of it to the plaintiffs was in fraud 
of his rights; that it was placed in the hands of the plainitffs as 
collateral security, and that consequently there is the same 
equity existing as between the maker and payee. The plaintiffa 
admit that there was no consideration between the original par- 
ties; that the payee could not recover, and that if pledged as a 
collateral security, without more, for a pre-existing debt, they 
would be in no better situation than the first holder; but they 
contend that there was an exchange of securities in substitution 
of t]ie note for the bond, or the proceeds of the bond, and thai 
they were innocent holders for value. 

Several exceptions have been taken to the charge of the court, 
none of which havebeen sustained. The charge is dear and 



Dec. 1840.] Depeau v. Waddington. 21& 

predBe, and sabstantially answers all the points whioh were 
made, and is as favoxable to the defendants as he had any right 
to expect. The court leave the fkots to the jury, and if there be 
any error, it is the application of the evidence to the points 
ruled. In the investigation of the case it becomes material to 
ascertain what are the facts found by the jury, and to which 
their attention was directed by the court They are in substance, 
these: That placing the bond in the hands of Bobinson & 
Smith, who acted as the agents of the plaintiffs, was for a par- 
ticular and special purpose, viz., that they would immediately 
dispose of the bond; which they did; and that they would pay 
over a portion of the money to them; and that in the mean 
while, the proceeds would be held by them as a pledge or secu- 
riiy for the amount due on the note; that the money raised by 
the sale or payment of the bond was a substitute for the bond; 
that as the bond was a collateral securiiy, so was the money 
arising therefrom. That at the time they stood in the relation 
of principal and agent, the parties came to an arrangement, and 
in consideration that the plaintiflh would relinquish all claim to 
the money, whether lien or otherwise, they agreed to transfer, 
in lieu of the bond or the proceeds thereof (which the jury have 
found to be the same thing), the note now in suit as a collateral 
security for the original debt. The only question, therefore, 
is, are the plaintiffs innocent holders for value. As between the 
maker and i>ayee, it is granted, there was no consideration, and 
the failure and absence of this would be a good defense to the 
maker. But between other parties, as here between the plaint- 
iff and defendant, two distinct considerations come in question; 
first, that which the defendant received for his liability; and 
secondly, that which the plaintiffs gave for their title. If the 
defendant can show that he has an equity not to be charged, as 
if he can prove, as has been done here, that he received no con- 
sideration for his liability, or that his signature was obtained by 
force or fraud, he may, after giving due notice, require the 
plaintiff to show that he gave a valuable consideration for the 
note or bill, and that the plaintiff has no equity to recover. But 
actions between remote parties will not fail unless in case of ab- 
sence or failure of both these considerations. It is conceded 
here, that as between the maker and payee, there is no consider- 
ation whatever; that the plaintiffs are required to prove that 
they gave a valuable consideration for the note, and that if the 
note is held merely as a collateral security for a pre-existing 
debt, without more, it is not such a consideration as will pre* 



220 Defeau v. Waddington. [Penn. 

Tent the defendant from availing himself of the eqtuty as be- 
tween the maker and "pajee. 

In Bo8a T. Broihersan, 10 Wend. 85, it is decided, that when 
the creditor recdyes the transfer of a negotiable note, in pay- 
ment of a pre-existing debt, he takes it, although transferred to 
him before maturity, subject to all eTisting equities between the 
original parties. But that case was not well considered, and 
lias been subsequently overruled. But although this is so, it 
has been repeatedly held that a collateral security for a pre-ex- 
isting debt, without more, is not such a consideration as wiU 
give title to the holder; yet, if there is a new and distinct con- 
fiideration, the holder is a purchaser for value, and, as such, pro- 
tected from a defense which would hare been available between 
the original parties. It seems to me there would be no great 
difficuliy in proving that it would have been better not to have 
restrained the negotiabiliiy of paper bona fide pledged as a col- 
lateral security for a debt; but on this point, the law is settled. 
Without making a parade of learning and research by the cita- 
tion of numerous authorities, foreign and domestic, ancient and 
modem, it is sufficient to refer to Petirie v. Clark, 11 Serg. & B. 
377 [14 Am. Dec. 636], where both points are ruled. It is there 
held that the transfer of negotiable paper as collateral securily 
for a pre-existing debt, does not constitute a person a holder 
for a valuable consideration. But where there is a new consid- 
eration, as where it can be shown that time was given in con- 
sideration of obtaining the note as a securily for the debt, it 
would be otherwise. The court, after stating the general 
principle adverted to, add, that it might be shown on the other 
side that the plaintiffs had a right to recover, provided they 
were able to prove that time was given in consideration of ob* 
taining the note as securily for the debt, and that in conse- 
quence the debt was lost. The giving of time would be a pre- 
sent and a valuable consideration; and a pledge in these terms 
would be the same as a pledge for money paid down. Here the 
principle is plainly announced; for the case put is but an illus- 
tration of the principle, and applies with great force to the case 
in hand. Where the holder of a note or bill has not paid value 
for it, he is in privity with the first holder, and will be affected 
by anything that would affect the first holder: Collins v. Martin, 
1 Bos. & Pul. 651. But no evidence of want of consideration, 
or other ground, to impeach the apparent value received, was 
ever admitted in a case between an acceptor, a drawer, or maker, 
and the person holding the bill or note for value. There is no 



Dec 1840.] Depeau v. Waddington. 221 

evidence that the plaintiffs were aware of the nature of the trans- 
action between the maker and payee. There was a pre-existing^ 
debt between the plaintiffs and the payee, for which they had 
a collateral secorily amply sufficient for their entire indemnity. 
One of the firm obtains possession of the bond for the particular 
purpose of reducing it into cash, and with the proceeds paying 
the amount due on the note. The money was raised by them, 
and instead of paying it over, as was the understanding, and their 
duty, in lieu thereof they assign to them the note now in suit. 

Now, in what situation did Bobinson and Smith, at the time 
of the transfer, stand to the plaintiffs? Clearly in the light of 
agents, with the money of the principals in their hands, recov- 
erable by action of assumpsit for money had and received, and 
which might have been followed by them into any specific prop- 
erty into which they may have converted it. As for instance, if 
they had purchased stock, it would have been subject to their 
claim: 3 Mau. & Sel. 562. The proceeds of the bond, to the 
amount of the lien, were theirs, and there is no evidence — ^but 
the rsTerse may be inferred — ^that the parties intended to con- 
vert tbe transaction into a mere personal contract between 
them. And if this had been the effect, it is far from clear, thai 
if the xight to a special action in the case had been relinquished, 
it would not have been a valuable consideration. The consid* 
eration is everything — ^the amount of it nothing, unless it is a 
colorable consideration. But be this as it may, the plaintiffs 
are holders for value. For what is this but an exchange of 
securities? and this, if it needed authority, has been ruled to be 
a sufficient consideration, in Bomblower v. Proudy 1 Bam & Aid. 
333.^ But it is said, it is the exchange of one collateral securify 
for another collateral seouziiy — and this is true; but may not the 
former have been of more value than the latter, as it undoubtedly 
was here, although that is an immaterial circumstance, so far as 
the legal point is involved. It is very plain, that had the plaint- 
iffs retained their original security, Uiey would have had no 
diffictdty whatever. It has been produced solely by the ex- 
change of securities. The same general rules which apply to 
the nature of the consideration for other simple contracts are 
applicable here.' If a man give his acceptance to another, that 
will be a good consideration for a promise on another bill, 
though such acceptance is impaid. And cross-acceptances for 
mutual accommodation are respectively considerations for each 
other: Bose v. Sims, 1 Bam. & Adol. 521; Cowles v. Dunlop, 7 T. 

1. 2 Bam. k Aid. 837. 



222 Depeau v. Waddikoton. [Penn. 

B. 566; Buclder y. BuMwarU, 8 East, 72. In Boaanquei t. Xhid- 
moffffi (1 Stark. 1), it was held, that when a banker^s acoeptanoes 
for his customer exceeded the cash balance in his hands, and 
accommodation acceptances were deposited bj the customer with 
the banker, as collateral security, wheneyer the acceptances ex- 
•ceeded the cash balance, the banker held the collateral bills for 
yalue. The reason that a negotiable note transferred as a col- 
lateral, does not constitute the holder a purchaser for yalue, is, 
that he is supposed, although yery often contrary to the &ct, to 
be in no worse situation than he was before. But that is not 
ifae case where there is a new and distinct oonaideieation superin- 
duced by the transfer and exchange of seonrities. It is not a 
past, but a present consideration. 

The plaintifTfl in error contend, that the judge erred, 1. In 
•charging the jury that a parting with the possession of the bond, 
for the purpose of a sale of it, was no surrender of the property 
in it; and that the parting with the possession did not imply that 
the plaintiffs gaye up their claim to it. Ooupled with the eyi- 
•dence, we see no error in the charge; as it was the understand- 
ing of the parties, and the jury haye so found, that it should be 
used for the special purpose of conyerting the bond into money, 
and paying the plaintifBs* debt. Quoad this amount they were 
the agents of the plaintiffs. 

2. In chargingthat if the defendant slept upon the knowledge 
that the plaintiffs held the note, and did not immediately giye 
them notice that no yalue had been receiyed for it, it was a cir- 
<nmistance for the consideration of the juiy, in refezence fo his 
liability. . The ans?rer refers to the plaiTitiift' ninth point; and 
it may be doubtful whether, if there be error at all, it is not 
against the plaintiffs. It is conceded, that the phdntifb were 
not aware of the want of consideration between the original par- 
ties; at least there is no proof of it: that they were resting un- 
der the conyiction that there was no want of &kith between them: 
that there was, at least, a moral obligation on the defendant, as 
soon as he was informed of the true state of the case, to take the 
earliest opportunity to apprise them of it, that they might secure 
themselyes; but instead of this, he seems to rely on the promise 
of Bobinson & Smith, to indemnify him by payment of the 
plaintiffs' debt. There is nothing to complaim of in this part of 
the charge, as it certainly was a ciroumstance which the juzy 
might take into consideration. 

But it is said that there is error, because the judge did not 
answer the defendant's points at all: and that he misdirected the 



Dec 1840.] Depeau u Waddinoton. 223 



jwcfBB to the lawarifidng from the eTidenoe. That the latter al< 
legation is groundless, I have endeavored to show; and as to the 
former, all the points to which the defendant was entitled to an 
affirmative answer, are noticed in the charge. But in addition^ 
this case is in some respects peculiar; and we sinceielj hope it 
will be the last of its kind. When the judge was about to 
deliver his charge to the jury, the defendant's counsel handed to 
him a i>aper containing five points to be charged on. The judge 
supposed that the general charge had covered all the ground 
taken in the argument; and from the opportnniiy afforded of ex- 
amining the points, he was not aware that anything in them had 
not been suffidentiy noticed. He desired, however, if the coun- 
ael for the defendant wished any more specific answer, that a 
•designation would be made of the portions of the points which 
had not been embraced in the remarks already submitted to the 
jury. 

The counsel for the defendants then referred to the fourth and 
fifth points. To this he answered, that no difference had been 
«hown between the law of New York and the law of Pennsyl- 
vania; and therefore the point did not arise. In this the court 
was right; for no difference now exists in the law of the two 
states in this particular. The courts of New York have retraced 
their steps; and the law is the same there as here. 

As to the fourth point, the judge said, that it appeared to be 
<xmipl2cated of law and fkot; and believing it to be answered by 
the general charge, so far as the defendant was entitied to have 
it answered, he had no farther reply to give to it. The remarks 
already made show that the point was substantially answered; 
but there is another reason equally conclusive. After stating 
his impression, that the point (certainly not so clearly expressed 
as to be understood in a minute) had been answered, the judge 
requested the counsel for the defendant to specify as to what 
particular the fourth point had not been answered; and the 
counsel not presenting any such specification, no farther re- 
sponse was made by the court. To convict a judge of error, 
after evincing his desire in this manner to do justice to the par- 
ties, might lead to the practice of trick and artifice and conceal- 
ment, and must be specially avoided; or otherwise the trial by 
jury would be a common nuisance. It is not intended to intimate 
that there was not due fidelity to the court in this case; but we 
must presume that the counsel knew in what particular the 
judge failed or omitted to answer; and in common condor it was 
their duty, being appealed to, to point it out. If they choose not 



224 Baeeb v. Haines. [?< 



to do 8O9 for motiyeB best known to themselyes, it is an eircr 
arising, in part at least, from their own omission; and can nol 
be a ground for reversal. If anj injniy arises from it, it is a 
matter to be settled between the counsel and the client. 

As to the question of the onus, which has been so much dis- 
cussed in the argument, it was a proper subject of remark before 
the jury; and is only material here, as bearing upon the &oti 
found by the juiy. 

Judgment affirmed. 

Bona fidk Holdxb» Who is. — See the note to Boy ▼. Ooddinfftcn, 9 Axil 
Dec. 272. See, also, CoddmgUm ▼. Boy, 11 Id. 842; Prodor ▼. JUcCfaU, 21 
Id. 135; Sims y. Lyle, 26 Id. 155, and note; BeUzho<nfer, 27 Id. S30; VcMm 
V. Jlobion, 28 Id. 125, and note; Brush v. Scribnar, 29 Id. 308, and aoter 
Bank <if 8L Albans ▼. CfUHUutd^ 35 Id. 586. It U settled law in Pennsyl- 
vania that one who takes a negotiable note as ooUateral seoniity for a pre- 
existing debt without any new or distinct consideration, is not a bona Jidt 
holder for value: Kirkpatrick v. JficirAead, 16 Pa. St. 123; Lard v. Oceoa 
Bank, 20 Id. 886; Oarrard v. PiMmrgh etc. B, B, Co., 29 Id. 160; Bofler v. 
ComnumweaUh, 40 Id. 4A; TViylor's ^jopeol, 45 Id. 83; Lenhekmy.WUmardimg, 
06 Id. 76, all citing the principal case. It is dted and distingiiiahed also ia> 
AppleUm V. Donaidatm, 3 Id. 387. 



Baeeb v. Hainbgl 

[SWkAmw. 98A.] 

VvAnmD GoMFABiaoir or Hakdb is Qeserally iNAnmaBnui in Fennsyhra- 
ni% bat saoh evidence is admissible in corroboratioa ol previona tiitl-- 
mcny. 

WBiroro Used as Standabd ik GoMPABisoir or Hakdb mnst be proved ith 
be gennine by evidence leaving no reasonable doabt, as by the testimony 
of persons who saw the party write it, or by an admiwnicm of its genuine- 
ness, or other evidence equally certain; and it can not be proved by the- 
opinions of witnesses. 

Ebbob to the Philadelphia distriot court, in an action f 01 libeL 
To prove that the alleged libel T^as written by the defendant, the 
testimony of persons familiar with his handwriting was intro- 
duced. Four papers poiporting to have been signed by the de- 
fendant were also introduced and admitted in evidence as 
standards of comparison. The substance of the evidence offered 
to prove the genmneness of the writings before admitting them 
in evidence is stated in the opinion. Verdict and judgment for 
the plaintiff, whereupon the defendant brought error. Only 
three of the errors relied on are noticed by the supreme court,, 
and the others need not therefore be stated. The first error al- 



I>ea 1840.] Baker v. Haines. 225 

leged was that the court erred in admitting the alleged libel to 
be read in evidenoe; second, that the court erred in excluding a 
certain question asked by the defendant as to whether the wit- 
ness knew ** the defendant's character for disputing and speak- 
ing evil of others;" third, that the court erred in permittingthe 
papers referred to to be given in evidence as standards of com- 
parison. 

Brewster and MeredUh, for the plaintiff in error. 

DaOaa and J. M. Bead, for the defendant in error. 

By Court, BoaxBS, J. The evidence preliminary to the intro- 
dnotion of Qie alleged libel was sufficiently strong to justify the 
oonrt in submitting the paper to the inspection of the jury. The 
ordinary proof of the opinion of the witness was given, and un- 
der these dronmstances the question, whether it was the hand- 
writing of the defendant, was for the jury, who are the ultimate 
judges of the geneuineness of the paper. There is nothing in 
the first exception. The second exception was properly aban- 
doned: but it is insisted that there is error in permitting the 
plaintiff to give in evidence the pai>erB as specified in the third 
exception. The doctrine in this state is, that mere unaided 
comparison of hands is not in general admissible. But in cor- 
roboration of testimony {yreviously given, such testimony may 
be received. In McGorkle v. Binns^ 5 Binn. 340 [6 Am. Dec. 
420], it is ruled that evidence from comparison of handwriting, 
supported by other dronmstances, is admissible. And on the 
same prindple from a comparison of the iypes, devices, etc., of 
two newspapers, one of which is dearly proved, and the other 
imperfectiy, the jury may be authorized to infer that both were 
printed by the same person. After evidence has been given in 
support of a writing, it may be corroborated by comparing the 
writing in question, with a writing, concerning which there is 
no doubt. The same prindple is affirmed in Vlckroy v. KeUy,^ 
14 Serg. A B. 872; CaUan v. Gaylord, d Watts, 321; Lodge v. 
Phi^pher, 11 Serg. & B. 383; Famven^ Bank v. WhttehiU, 10 Id. 
110; Bank v. Jacobs, 1 Penn. 161. 

But the objection is not to the general prindple; but it is 
contended there is no adequate proof of the genuineness of the 
papers which are intended as the standards of comparison. And 
on this point I am not aware of any direct decision; although in 
several casesit is plainly indicated that no doubt must remain as to 
the handwriting of the test-paper. Thus in McCorkle v. Binns, the 

1. Fieferfy t. Atlfay. 
AM. Dmo. Vol. XXXVI-U 



226 Bakeb v. Haines. [Pexin. 

chief justioe says, the paper must be identified beyond all doubt 
And again, in Uiesame case, he says, it maybe compared with the 
writing concerning which there is no doubt. The Farmer^ Bank y . 
WhiiekUl was an original administration account, settled by the de- 
fendant and his mother, respecting the estate of the defendant's 
father, and it was proved by the register of wills, that it was 
signed by the defendant and his mother, and sworn to by them. It 
was also admitted on the trial that it was his handwriting. Here 
nothing was left to conjecture or doubt. In the Bank y. Jacobs ^ the 
test paperwas admitted to be genuine; and Mr. Justice Smith says, 
that when a witness has seen a person write, and declares he 
knows his writing, he may compare it with writings which he 
has seen the person write, or which it is admitted he wrote. 
CaUan y. Cfayhrd is supposed to haye a strong bearing on the 
point, because, in the argument, a distinction is attempted be- 
tween papers admitted that it is said may go to the jury in cor- 
roboration, but not papers proved. But it must be remarked 
that this practice is not noticed by the court; and, in truth, 
there is no such distinction; for there can be no doubt that 
papers proved may be admitted for purposes of comparison. 
The difficulty is not as to the character of the proof, but the 
manner of the proof. The court ruled the broad principle, that 
comparison of hands is evidence in corroboration of other evi- 
dence which tends strongly to prove that a libel is in the hand- 
writing of the defendant. The chief justice takes it for granted 
that the book, which was offered in corroboration, was, in fact, 
written by the defendant. It does not appear to have been de- 
nied that the entries in the plaintiff's book were in the handwrit- 
ing of the defendant; and this, in truth, could not be done, as 
he had been in his employment as his bookkeeper. 

Mr. Justice Shaw, in Moody v. BotceU, 17 Pick. 495 [28 Am. 
Dec. 317], seems to intimate that proof of the genuineness of the 
standard offered for comparison must be directed to the fact of 
its'having been written by the party, by one who saw him write 
it. See, also, Bichardson v. Newcowbe, 21 Id. 317. We con- 
ceive it to be veiy material that strict proof of the genuine or 
test paper should be first given; that no reasonable doubt should 
remain on that point; and nothing short of evidence of a person 
who saw him write the paper, or an admission of being genuine, 
or evidence of equal certainty, should be received for that pur- 
pose. Any other rule would lay the doctrine open to Mr. 
Starkie's principal objection to the general principle, who, speak- 
ing as to the receipt of evidence as to comparison of hands, says. 



Dec 1840.] BIkeb v. Haines. 227 

that, perhapSy after all, the most satis&ctoxy reason for its exclu- 
sion is, tbat if saoh comparisons were allowed, it would open the 
door to the admission of a geat deal of collateral eyidenoe, which 
would go to a very inconyenient length. For in every case it 
would be necessary to go into distinct evidence to prove each 
speciTnen produced to be genuine; and even in support of a par- 
ticular specimen, evidence of comparison would be receivable, ia 
order to establish the specimen, and so the evidence might 
branch out to an indefinite extent: 2 Stark. Ev. 875. This in- 
convenience is in a measure avoided by exacting preliminary 
proof which leaves no reasonable doubt as to the genuineness of 
the standard or test paper. This would seem to be reasonable 
from the veiy nataze of a standard or test, which should itself be 
certain and fixed. 

The preliminary evidence which was given, was an opinion of 
the principal witness on whom the plaintiff rested this part of 
his case, with the aid to be derived from the opinion of another 
witness, who says that the papers Nos. 1, 2, 3, and 4 are his, 
that is, the defendant's. It is, however, nothing more than his 
believing at last, as it is not pretended he saw him write them, 
nor is it anywhere said that the defendant acknowledged the 
writing to be his. There is rather stronger evidence that the 
specimen is not his handwriting, than of the authenticity of the 
alleged libel, as we have the opinion of one more witness of the 
one than of the other. It is very plain that without the restric- 
tions which have been indicated, evidence of comparison of 
hands, woxdd vezy often be used for very oppressive and perni- 
cious purposes. As the party who offered them would have the 
selection of the criterion or test specimen, it would very fre- 
quently happen that it would be out of the power of the adverse 
party to disprove the allegation that the writing was his. In 
the case at bar, the libel is as much a test of the authenticiiy of 
the standard of comparison, or nearly so, as the latter is of the 
authentidiy of the former. 

As this cause goes down for another trial, we refrain from ex- 
jxressing an opinion on the six last errors. If the declaration be 
defective in any respect, as alleged, it may be amended before or 
on the trial. 

Judgment reversed, and venire de novo awarded. 



CoMPAEiBON or HASDWBrriNGS: See Homer v. WiMiUSf 6 Am. Deo. 
169, and note; JHeOorliie ▼. Bimu, Id. 420; Woodard v. SpOler, 26 Id. 139; 
Moodjf T. BoweU, 28 Id. 817. In Power y. Friek^ 2 Grant, 808, and J>qpm 
V. Plaee^ 7 F^ St. 480, the prinoipal case ia cited to the pointy that upon a 



228 COLLINS V. Smith. [Pena 

comparison of handwritixigB, the teet or standard paper most be proved by 
the admiasioii of the writer, or by the testimony of one who saw him write it. 
The caae is approved on the same point in Tnwia v. Browm^ 48 Id. 16; and 
iM OMi iaJmnpertur. People, 21 BL 430. 



GoLIiDIB V. SmITEL 

[6 Wbabsos, 9M.] 

BBnuL OF BanAUiro Sxatdtb revives the original statnta. 

KmBAiioir 07 BnmALnro Statutb bt its Owv LmixAxnur vavifw tiia 
statnte repealed and sapplied. Therefore the Penni7lvaDla act of llaioh 
19> 1810L relating to nninoorpofated banks, was revived by the eocpira* 
tion of the repealing act of Mardh 21, 1814. 

Ebbob to the Philadelphia dicrtxiot court, in an action on a 
eeirtain note. The defendants filed an affidavit of defense, to the 
effect that the note in question was given to the treasuzer of the 
** Schuylkill savings institation," an illegal partnership or bank- 
ing association, for a certain note and check drawn by the de- 
fendants for the accommodation of a third party, which note 
and check were discounted by the said institution at an illegal 
sate of interest; and that the plaintiff, with notice of these facts, 
took the said note as security for a certain deposit made by him 
in the said Schuylkill saviags institution. The validity of the 
defense turned upon the question, whether or not the act of 
March 19, 1810, forbidding unincorporated banking institutions 
from transacting banking business, was in force at the time of 
these transactions. The court below thought the defense insuffi- 
cient, and directed judgment to be entered for the plaintiff, and 
the defendants sued out a writ of error. 

Ingrahanif for the plaintiff in error. 

Ebplnns^ for the defendant in error. 

By Court, Gibsoh, C. J. The Schuylkill savings institution 

is an unincorporated banking association; and it is illegal if the 
act of the nineteenth of March, 1810, is still in force. That act 
forbade unincorporated banks to issue their notes, to lend 
money on business or accommodation paper, to receive it on de- 
posit; or to do any act which an incorporated bank might do; 
and these prohibitions were unlimited as to duration. But an 
act was passed on the twenty-first of March, 1814, which created 
thirty-nine new banks, and which, having declared the contracts 
and notes of all unincorporated banks void, repealed the act of 
1810 in terms, and limited the duration, not only of the new 



Doc 1840.] Collins u Smith. 229 

diarterSy but of its own ezistenoe, to a period of little more 
than eleven years. Then came the act of the twenty-fifth of 
March, 1824, which, without again supplying the prohibitions 
of the act of 1810, or continuing those of the act of 1814, re- 
newed the charters of certain banks named in it, most of which 
had come into existence under the act of 1814; so that the ques- 
tion is, whether the expiration of a statute' by its own limitation, 
ipso fado^ rcTives a statute which had been repealed and sup- 
plied by it. 

It is an admitted rule of the common law, that the repeal of 
a repealing statute rcTives the original. But in Warren y. 
Wmdle^ 8 East, 211, Lord Ellenborough suggested — ^for not- 
withstanding the synopsis of the case, and the quotation of it 
by text-writers and compilers, it was not decided — ^that there' 
may be a difference betwixt the repeal of a repealing act, and( 
the expiration of it, when '' though temporary in some of its 
proTisions, it may have a permanent operation in other respects. 
The statute 26 Geo. HE., said he, ''professes to repeal the 
statute 19 Geo. II., absolutely , though its own proyisions which 
it substituted in the place of it, were only temporary." If he 
meant by this that there may be a permanent repeal of proris- 
ions which are at the same time but temporarily supplied — ^in 
other words, that parts of a statute may be temporary, while 
other parts M it are perpetual — ^I admit it. A statute may be 
repealed without being supplied at all; and the proriding of a 
temporary substitute does not necessarily make the repealing stat- 
ute also temporary. That, howeyer , is not the attribute of the stat- 
ute before us; for eyery enactment, branch, and clause of it, was 
to cease at the time appointed. But if Lord Ellenborough meant 
to be understood that eyery present repeal is necessarily a per- 
manent one, though declared by a temporary act, or that a stat- 
ute may continue to operate as a repeal after it is itself defunct, 
he assumed what can not be granted. I haye found nothing 
like a decision or dictum to support his suggestion; and there 
seems to be as little foundation for it in reason. The common 
law is not essentially imperishable, nor does it possess more in- 
herent power of self -resuscitation than does a statute. 

Sir Matthew Hale thought that many things which now obtain 
as common law, had their origin in parliamentary acts or con- 
btitntions made in writing by the king, lords, and commons, 
though those acts are either not now extant, or, if extant, were 
made before the time of memory. Howeyer that may be, the 
common law may certainly be repealed and supplied as a statute 



230 Collins v. Smith. [Penn. 

may; and were it done bj a statute of limited dniation, it could 
scarce be maintained that the common law would not reyive 
as soon as the statute were spent. We have a statute which di- 
rects that a remedy provided by the act of assembly shall be 
pursued in exclusion of every other, and which is pro tanio a 
substantive repeal of the common law. It happens to be per- 
petual; but were it temporary, we should, according to Lord 
Ellenborough, have nothing to supply the place of a temporary 
and exploded statutory remedy, when that statute would expire 
— a consequence not anticipated and certainly not intended. 
In what does the limitation of a repealing clause differ from the 
repeal of such a clause ? It may be thought that an immediate 
repeal evinces a change of intention, and that no other object 
can be assigned for it than the revival of the original. The re- 
vival, however, arises, not from an implication of intention, but 
from a removal of the pressure which kept the original statute 
down; and were it otherwise, such an implication would equally 
arise from a limitation, which is a future repeal by anticipation. 
It is a declaration that the statute shaU stand annulled at 
the appointed time, and be as entirely annihilated as if it had 
not been enacted; so that a statute abrogated by it might lees 
properly be said to be repealed than suspended. And it can 
scarce be doubted that the legislature of 1814 intended only to 
suspend the act of 1810, and not to abrogate it. That body was 
not more tolerant of unauthorized VM^r^TriTig than were its prede- 
cessors; and that it introduced new provisions only for the sake 
of experiment, is evident from the fact that they were of limited 
duration. The object was not to protect the new banks from 
unauthorized competition, as it might seem to have been from 
the limitation of the prohibition to a period co-extensive only 
VTith the duration of their charters — ^for other banks, having 
equal claims to protection, had paid for charters with longer 
time to run — ^but it was more effectually to restrain an inde- 
pendent mischief which had survived every attempt to sup- 
press it. 

If, then, the repeal of the act of 1810 vras intended to be per- 
manent, why were not the prohibitory sections of the act of 1814 
also permanent? Perhaps it may be thought that the final dis-' 
position of the subject was purposely postponed, with a view to 
the result of the experiment, till further legislation should be 
needed for the new banks. But at the renewal of their charters 
in 1824, the legislature evidentiy thought there had been a final 
disposition of it already, else they would have acted on it. And 



Dec. 1840.] Simpson v. Hand. 231 

fhey could have thought so only by Tievrmg the approaching ex- 
piration of the repealing act as a restoration of that which had 
preceded it. There was no change of temperas to these associa- 
tions; for their tendency could not be disguised, and the public 
interest in the banking priyilege was too valuable to be thrown 
open to those who did not pay for it. We must suppose, then, 
that the legislature intended to leave them to the original act; 
whence it results that the Schuylkill savings institution, being 
an unincorporated assooiatioi^f or purposes of banking, is illegal, 
and that the note in suit, being drawn in favor of its treasurer, 
is void. 
Judgment aflBzmed. 



&IMF80N V. HAIiD. 

[6 Wbasiom, 811.J 

WtaBB Loss Abodb ibom Mutual Kbouoenos, neitiier putj oaa reoom 
at eotnipoo unr. 

P aiviTi OF CoMTBAor Bznrs Bsrwxur Mxbohavt and ms Oabrikb, Hm 
latter being to some extent the farmer's agent. 

OwHXR or Goods Injubbd bt Mutual Ksoliosmob or Oabbixb and the 
master of a ship colliding with the oarrier's vessel, can not reoover there- 
for against the owners of the colliding vesseL 

Masmi or Vbsbxl nr Motiok Ooludiko with Vessel at Akohob Is bound 
to know that the latter can not be got cat of the way so readily as his 
own vessel can dear it^ and to take measures accordingly. 

Failubb to Keep Signal Lioht Burning on Vessel ANOHoaBD in the 
channel of the Delaware river at night, and to maintain a proper anchor 
watch on board the vessel, is such negligence as to prevent arecoveiy by 
the owner of goods carried thereon against the owners of a vessel in 
motion* colliding with such anchored vessel, for an injury to the goods, 
although the master of the vessel in motion is also guilty of negligence, 
and the burden of j^oof lies on the phuntifF. 

Aoxiov on the case tried at nisi prkts, at Philadelphia, before 
Eexmedjy J., brought by the plaintiffs, owners of certain goods 
shipped on board the sdiooner Thorn, against the defendants, 
as owners of the brig WiUiam Henry, for an injuiy to the goods 
occasioned by the William Heniy mnning into the Thorn, while 
die latter vessel was lying at anchor at night in the Delaware 
river. The facts are sufficiently stated in the opinion. The 
judge instructed the jury, among other things, that it was the 
duty of the master of the Thorn to anchor her out of the chan- 
nel, and that, if anchored in the channel, it was the duty of 
those on board to ty^i^iTifa^iTi a light burning during the night in 



232 Simpson v. Hand. [Pemu 

Boxue oonspicuoiis place on the ship, and to maintain a proper 
anchor watch; and that if this were done, the defendants, owners 
of the William Henry, were liable, and that ** if, without this 
being done in the Iliom, she was discovered by those having 
the charge and direction of the Henry, in time to have avoided 
the collision, but they neglected to use the proper exertion for 
doing so, until it was too late, the defendants would be liable 
in like manner/' Verdict for the plaintiffs, and motion for a 
new trial, on the ground of errov in the instructions, and be- 
cause the verdict was against the law and the evidence. The 
principal poin^. of contention sufficiently appears from the 
opinion. 

HubbeUf for the defendants. 

H, Binney, jun., and J. H. IngersoU, for the plaintiffs. 

By Court, Gibson, C. J. It is an undoubted rule, that, for a 
loss from mutual negligence, neither parfy can recover in a court 
of common law; and so general is it, that it was applied in MU 
V. Warren, 3 Stark. 877; S. C, Eng. Com. L. 390,^ to the negli- 
gence of agents, respectively appointed by the parties to super- 
intend the taking down of a pariy wall. Courts of admiraliy, 
indeed, decree according to the drcumstanoes, so as to apportion 
the loss; but certain it is, that a court of law, whether for its in- 
abiliiy to adapt its judgment to the merits of sucha case, or whether 
for any other cause, refuses to interfere at all. It has been pressed 
upon us, however, that though such be the rule betwixt owners 
of coasting vessels or wagons, it is because seamen and wagon- 
ers are the servants of their employers, and have consequently 
power to affect them by their acts; that a carxier is not the ser- 
vant of his employer, but an independent contractor; and that 
there is no more priviiy betwixt the owner of the vehicle 
and the owner of the goods, that there is betwixt the owner of a 
stage-coach and a passenger in it, who may, it is said, have an 
action against the owner of another coach driven carelessly 
against it to his hurt, without regard to the question of negligence 
betwixt the drivers. The argument is plausible, but the authori- 
ties are against it. Vanderplank v. Miller* was the very case of 
an action by the owners of goods damaged by coUision; and Lord 
Tenterden, without adverting to the supposed distinction be- 
twixt them and the carrier, directed that, if there was want of 
care on both sides, the plaintiffs could not recover. The force 
of the decision is attempted to be evaded by supposing the 

1. a stark. 877 ; 2 £ng. Com. L. 453. 3. 1 Moo. k H. 108. 

I 



Dec. 1840.] Simpson v. Hand. 233 

•owners of the goods to have been their own carriers: bat noth- 
ing in the report giyes color to sach a supposition; and owners 
•of both goods and Tessel would scarce haxe brought their action 
for damage to the goods alone. That case, therefore, is in point; 
4Uid though it was ruled at nisi privSy the counsel seem to have 
been satisfied with the yerdict. To the same purpose is Smiih ▼. 
SrnUh / the difference being that the person who had the horse 
in charge at the time of the injury, was not a carrier, but a 
bailee for hire. Still he was no more than a carrier, the owner's 
servant; nor was he less liable, on the contract, for actual n^li- 
gence. But the principle is founded in reason as well as 
Authority. There is at least privily of contract betwixt a mer- 
•chant and his carrier; and the former, when he commits the 
management and direction of his goods to the latter, giving him, 
as he does, authorily to labor and trayail about the transporta- 
tion of them, necessarily constitutes him, to some extent, hjs 
agent; and this ioference is sanctioned by judicial decision. 

In Beedle t. MnriSy Oro. Jiac. 224, an owner of goods stolen 
from a carrier at an inn, was allowed to maintaJTi an action for 
them against the inn-keeper; and as the latter is liable only for 
things infra hospiiium, and to passengers and wayfaring men, as 
was ruled in CaUye^s caaCy 8 Bep. 63,' it follows that the action 
was maintained not on the right of property, but on the relation 
of inn-keeper and guest; and that the owner, to bring himself 
within it, was allowed to treat the carrier as his substitute. It 
will not be pretended that, had the inn-keeper's vigilance been 
put asleep by misrepresentation of the carrier in respect to the 
Talue of the goods, it might not have been set up in bar of the 
action; yet that would have made the owner liable to the conse- 
quences of the carrier's deceit. Neither will it be pretended 
that an owner could recover for special damage, occasioned by 
gross negligence of the carrier in suffering the goods to be tum- 
bled into a trench cut across the highway; for that would make 
the author of a public nuisance answer for a private wrong 
which he did not commit; yet if the owner were not to be 
affected by the carrier's n^ligence, such an action might be main- 
tained on the right of property. So far has the owner's respon- 
sibility been carried in every species of bailment, that, where beasts 
in the custody of another who does not appear to have been his 
servant, were suffered to commit a trespass, the owner of them 
was held to answer for it: Viner, Trespass, B, pi. 1. The case 
put of injury to a passenger from a collision of stage-coaches^ 

1. a Pltik. ni; S. C, 18 Am. Deo. 4M. 3. 8 Bep. 83. 



234 Simpson v. Hand. [PeniL 

mmts the essential ingredient of bailment to oomplete its anal- 
ogy to the present; but I am not prepared to admit that evea 
he oonld hare an action for mutoal negligence against any one 
but him to whose care he had committed his person. A carrier 
is liable to lus employer at all events; and to make his associate 
in misconduct answerable for all the consequences of it, would 
make one wrong-doer respond, in ease of another, for an injuir 
that both had committed. It is more just that the carrier should 
answer to lus employer, rather than one in whom the employer 
had reposed no confidence. What remains, then, is to inquire 
whether there was evidence in the case before us, of mutual 
negligence in the conduct of those who had the yessels in 
charge. 

That there was carelessness on board the William Heniy waa 
proved by her own crew. The pilot testified explicitly that the 
%ccident would not have happened if the mate, who was on the 
lookout, had done what was palpably his duly. The Thorn waa 
perceived when she was at the distance of nearly three hundred 
yards; yet, though he called out to starboard the helm, the 
order was neither responded to nor repeated. He said further^ 
that the mate gave lum no intimation of the Thorn's presence 
till she was struck;* and that had he done so while she was dis- 
tant twice the length of his own vessel, he could have cleared 
her. The mate himself says that he gave no intimation to the 
pilot at all; and that his call was to the man who was supposed 
to have the Thorn in charge. It was, then, gross negligence in 
him to recur to a measure so uncertain, in exclusion of thai 
which was the most xiatural, easy, and proper. To avoid eveiy 
chance of accident from the probable drowsiness of the anchor 
watch, he ought to have given the order to the steersman of his 
own vessel, known to be on the alert. Even had it been certain 
that the anchor watch was equally so, he was bound to know 
that a vessel at anchor could not be so readily got out of the 
way, as it could be cleared by another in motion; and it was hia 
duty to take his measures accordingly. Such was the evidence 
of negligence on board the William Henry; and what was the 
evidence of it on board the Thorn ? 

There were three points of fact to which the attention of the 
jury was at first directed, but from which it was unfortunately 
withdrawn in the sequel. The Thorn's position in relation ta 
the channel; the burning of a signal light aboard of her; and 
the conduct of her anchor watch. As regards two of them, her 
position and light, there was a conflict of eridence. Four of 



Dec. 1840.] Simpson v. Hand. 235 

the six persons who composed her crew, testified that she was 
anchored out of the thoroughfare or customaiy track; that the 
mate set an anchor watch; and that he placed a signal lantern 
in the peak halliards. This was before the crew retired to their 
berths; but the point of time material to the question was the 
instant of the collision, and what was the state of things then? 
The plaintiflh* witnesses asserted that the light was burning in 
its place when they came upon deck, a few moments after the 
shock; while those on the adverse part, including one of the 
Thorn's crew, testified that no such thing was visible, and that 
they would have seen it had it been there. Again, the defend- 
ants' witnesses testify that the Thorn was lying in the very mid- 
dle of the channel; a fact rendered probable by the depth of the 
water; and if she was lying there, without a light to mark her 
position and presence, she had not used those precautions which 
prudenoe required. 

It was, indeed, ruled in Oardy t. Whiie, 21 Pick. 264 [82 
Am. Dec. 269], that there is no rule of positive prescription like 
the ordinances of Oleron, or any general usage, which requires 
a light to be constantiy exhibited in the night-time by a vessel 
at anchor in the harbor; and that whether the omission of it be 
n^ligence to bar an action for a collision, must depend upon 
the impression made by the circumstances on the minds of the 
jury. A vessel is doubtiess not bound to show a light when 
she is moored out of harm's way; but vessels run at all hours 
on the Delaware; and it was proved to be a custom of the river 
to set a light in nights of unusual darkness; and though there 
is no positive law to enforce it, the neglect of it must give a 
false confidence to an approaching vessel which she would not 
feel if there was no custom at all. In such drcumstances, a 
want of conformity to the custom is an allurement to disaster. 
Indeed, the hoisting of a light is a precaution so imperiously de- 
manded by prudence, that I know not how the omission of it 
could be qualified by drcumstances, any more than could the 
leaving of a crate of china in the track of a railroad car; or how 
it could be considered otherwise than as negligence per se. 

Betwixt the stories of those who spoke of the conduct of the 
anchor watch there can scarce be said to have been a difference. 
The pilot testified that he ran forward at the time of the collis- 
ion, and that no person was then on the Thorn's deck. Evans, 
the passenger, said the same; and he, as well as the mate, de- 
clared that the first man they saw on board of her, was in the 
act of coming out of the cabin. McCracken, who was one of 



236 Simpson u Hand. [PeniL 

the Thorn's oxew, deposed that neither light nor watch had been 
«et; that the crew, at the time of the disaster, were asleep in 
their berths; that he and Joe, the reputed anchor watch, slept 
together in the forecastle; and that being roused by the jar, 
tbej got on deck through the scuttle, where thej found that no 
one had preceded them. In addition, no one pretended that an 
answer was returned when the Thorn was hailed. On the other 
side, the master of the Thorn testified that when he came up 
he found Joe on de<^; the mate said the first man he saw on 
•deck was Joe; and Hess, the seaman, said that he found Joe on 
deck forward. Now this may haTe been pexfeotlj true, and yet 
Joe may haye been asleep when his services were wanted; nor is 
it at all inconsistent with the testimony on the other side. The 
only witness who pretended to say where he was at the time of 
the collision, said that he was not at his station; and Joe him- 
self was not called to contradict him. Now, though the rule is 
that a Tessel in motion is bound to shape its course so as to pass 
another at rest, if need be, without its co-operation, it seems to 
be the custom of the Delaware for the crew of a Tessel, at anchor 
in the stream, to give such a shear as may preTent a vessel in 
the act of passing, from running foul of it in case of accident. 
Had that been done in this instance, the disaster would have 
been escaped; and though the want of co-operation did not 
justify the mate's negligence in not taking his measures so as 
not to need it, it would fix an imputation of negligenoe on the 
Thorn to show that her anchor watch was not at his station in 
time to afford it. 

Instead, then, of being told that, notwithstanding the Thorn 
may have been deficient in any, or all, of the preceding particu- 
lars, the plaintiflh would be entitled to recover if she was per- 
oeiyed on board of the William Henry in time to be axoided, the 
jury ought to haxe been told that if she was moored in the chan- 
nel, without a light burning at the time; or that if her watch 
was not present, and did what is customary on such occasions, 
her people were obnoxious to such a charge of n^ligence as 
would bar the action; and that the burden of proof lay on the 
plaintiffs. 

New trial granted. 



CosTTBiBnTOBT KiouoKNOB DsnATiHO BxooTBBT: See Har^fidd ▼. Ropet^ 
^ Am. Deo. 273, and cases cited in the note thereto. That there can be no 
recovery for an injury resnlting from mntoal negligence ia a principle for 
which Simpton v. Hamd ia dted aa aathority in Qalena tic. R. R* Co. ▼. Jacobs^ 
^ 111. 405; Wynn ▼. AUeurd, 5 Watts ft 8. 526; Railwajf Co. v. Skinner, 19 



Dec 1840.] Simpson v. Hand. 237 

PiR. St. 301. The case ib oommeDted <m and approved od the nine point i& 
Loekhartv. LkMmikaler,4eJd. 168,inwhiohitwa8held,inacoordanoe with 
an fatiination in the principal caae^ that where a pawonger OP a oairieryeaaeli^ 
hqnred by a oollliiion oanaed by the nmtoal negligence of the canier and 
another party, the canier ia liable to the paasenger therefor. 

OmasioK BT Vbbkl to Exhibit Liobt at Kioht: See CanUy y. WhiU^ 32^ 
Am. Dec. 2G9. The principal caae ia cited aa anthority on thia point in IwnU 
T. Steamer SemUott 1 CSaL 400, where it waa held to be the duty of a Teasel 
moored in the track of other Teaiek in San I^moiaoo bay on adark night, t» 
keep a light expoaed, and that the want of anoh light ahonld be deemed n^ 
ligBnce jMT «^- 

iNJUBzn BT Ck>uJBnMr of VaMBB: Sea Bpnmi y. JSTeMMfa^way, 26 Aaw 
Dec SBO, and nola) Bmme y. I W we , 29 U. 4fl2| Pt m uf f i wtm la eie. Cbu ▼• 
AHHMd^Id»ML 



OASES 

IN THI 

SUPREME COURT 

Of 

BHODE ISLAND. 



NiOHOLS V. Reynoldb. 

fl BboDB bLAlID, 30.] 

•Dbd Filbd lOB BaooRD IS Deemed to be Recorded from the time of iti 
deliTery to the recorder. 

Deed Absoltttb upon its Face will nevertheless be Treated as a 
MoBTOAOEi if the circamstanoea attending its ezecation, and the snbte- 
qnent condnct of the parties respecting ft, indicate that it was regisided 
by them as collateral secarity for the payment of a debt. 

Iv Air Absolute Deed be Executed bt the Grantor tor Two Purjposbb, 
one legal, as to secure a pre-existing debt dae the grantee, and the other 
fraudulent, as to defraud the grantor's creditors, and there is no evidence 
that the grantee had any knowledge of the fraudulent intent of the 
grantor, the deed will be treated as a legal and valid mortgage to secure 
the payment of the sum due the grantee at the time of its exeoutioii. 

CovyxTAMCE BT A MoRTOAOEE ow HIS RiOHT AND INTEREST in the mort- 
gaged premises, is valid, even though another mortgagee, claiming by 
the same title, be in the actual possession of the premises, whether such 
conveyance is treated as an assignment of an equity of redemption, or as 
a technical release. 

FosBBssioN ov One having a Right of Possession under One Title, hut 
claiming under another, the latter being adverse, the former not, is 
deemed to be a possession under the title which is not adverse. 

Actual Possession ow One Privt is constructively the possession of each, 
according to his title, although the party in possession claims to be in by 
an adverse title. 

Bill in equity, praying for an account and for redemption of 
mortgaged premises. A. B. Bathbun, on the twentieth day of 
February, 1813, executed to Tillinghast, Case, and Thomas, 
a mortgage upon two parcels of land. The interest of Tillinghast 
was afterwards assigned to Beynolds, and that of Case to J. B. 



Nov. 1840.] Nichols u Reynolds. 239 

Bathbun. On the sixteenth day of March, 1813, A. B. Bathbun 
mortgaged one of said parcels to Sarah Steere, whose interest, 
upon the twenty-seTenth of February, 1827, was assigned to 
Thomas. On the sixteenth of March, 1813, A. B. Bathbun con- 
Teyed the parcels included in the mortgages mentioned aboye, 
to Elizabeth Peckham, by deed in fee simple. Elissabeth Peck- 
ham died in 1825, and John Hall and wife and others became 
seised of the premises as heirs at law. In 1833 Hall and wife, by 
their deed of quitclaim, remised and released to Nichols, the 
complainant, all their right and interest in the premises. The 
bill prayed that Beynolds, Thomas, and J. B. Bathbun be re- 
quired to account to the plaintiff, and that plaintiff might be 
permitted to redeem. The answer of J. B. Bathbun admitted 
the mortgages mentioned above, but averred that the deed to 
Elizabeth Peckham, in 1818, had been executed by A. B. Bath- 
bun for the purpose of fraudulently protecting his property 
from attachment l^ his creditors and to secure it to his own use. 
That the deed had been carried by Bathbun to the office of the 
town clerk and deposited with him with directions that it should 
not be recorded. The answer, however, admitted that, at the 
time, A. B. Bathbun was indebted to Elizabeth Peckham in the 
sum of three hundred dollars upon lus promissory note. The 
answer further alleged that after the execution of said deed to 
Elizabeth Peckham, Bathbun continued in the actual possession 
of the premises for about ten years without interruption, with- 
out the deed ever being recorded, or ordered to be recorded, or 
any rent being demanded by Mrs. Peckham, and that during 
that time she had permitted Bathbun to hold himself out to the 
world as the owner of the premises. The answer further alleged 
that, in 1823, A. B. Bathbun, in consideration of the sum of four 
hundred dollars, executed to defendant J. B. Bathbun a deed 
poU of the lands, which deed was duly recorded, and that at the 
time of the execution of the deed, said J. B. Bathbun had no 
notice of the prior deed to Mrs. Peckham, that A. B. Bathbun 
had declared that the land was free of all incumbrances except 
the mortgages to Tillinghast, Case, Thomas, and Sarah Steere, 
and that the defendant had, upon the execution of the deed to 
him, entered into possession of the premises, and continued in 
possession ever since. The answer further averred that Hall 
and wife, at the time of their release to Nichols, were not in the 
actual possession of the premises. The opinion explains the 
/acts still further. 

L. HaU, for the complainants. 



240 Nichols v. Bstnolixl [R. L 

/. EaU, for the defendant Baihban. 

Bj OouBT. The indebtednees of A. B. Bathbnn to Mrs. E. 
Peckham was a good consideiation for the interest which his 
deed of the sixteenth of Maroh, 1818, purports to oonyey. The 
lodging of the deed with the town clerk bj Mrs. Peckham, and 
the subsequent admissions of the grantor, as testified by Hall 
(if he be a competent witness), and others, axe presumptiye evi* 
denoe of its deliYeiy. It is at least enough to prove, prima facie^ 
that the deed came to her possession with the assent of the 
grantor. When a deed, which has never been recorded, is 
lodged with a town clerk, the act of lodging it, unaccompanied 
with any counter declarations, is itself an implied direction to 
record; and, other things equal, the title is complete upon ita 
being lodged with such implied directions; for by the terms of 
our statute, the lodging of a deed to be recorded is equiTaleni 
to an actual entry of it upon record, so far forth as is neoeesazy 
to perfect the title. The title being made complete by such 
lodgment, the subsequent n^lect of the town derk can not 
affect tiie grantee^ rights under the deed. The deed remaining 
on file in the clerk's office, and open to inspection, is notice to 
all the world of a conyeyance of the land, either absolute or con- 
ditional. 

But there axe circumstances attending this transaction weU 
calculated to draw into question Elizabeth Peckham's titie to an 
unconditional estate in this land. The debt which formed the 
consideration of the deed appears to haye remained in her hands 
undischarged. The possession of the property continued in tiie 
grantor to all appearance without change of use, except that he 
was at times called on to settle, and was once threatened with a 
demand, or with a suit for the possession of the land; and fur- 
ther, the deed was suffered to remain on file unrecorded, until 
shortiy before the grantee's death. The conduct of Elizabeth 
Peckham, then, was precisely such as if the deed had been a 
mortgage, or as if it had been delivered to her as collateral se- 
curily for her demand; an4 there is nothing in the conduct of 
A. B. Bathbun inconsistent with this purpose, except the single 
fact that the deed on the face of it is absolute. From all the 
circumstances the grantor appears to have had two objects in 
view. First, to secure the debt due to the grantee. This was 
a good object. Second, to cover his property from the suits of 
his other creditors. This was a fraudulent purpose. Eliza- 
beth Peckham would not have done herself justice had she not 
concurred in the first object, and accepted the deed as collatenl 



Nov. 1840.] Nichols v. Betnold& 241 

Becnriiy for the debt then due her; and 80 fur the tranfiaotion 
was perfectlj honest between both parties. As to the second 
object, there is no proof at all that she concurred in it; there is 
none that she knew it; on the contrary, she treated the deed only 
as a mortgage; she was not, therefore, in pari delicto, and the 
deed must at least be regarded, by a court of equily, as collateral 
security for the debt due her at the time it was giyen. If the 
evidence by which this view is taken be competent, it is plain 
that the deed under this bill must stand as good. - The plaintifb 
must be allowed to redeem, and if Joshua B. Bathbun take any 
estate, it is a mere equily of redemption, subject to the prior 
rights of the plaintiffs. 

But is the evidence competent? Mr. J. Hall is the only wit- 
ness objected to as incompetent. He is the main witness in sup- 
port of the bilL Without his testimony, it may be doubtful 
whether the bill can be sustained. Is he, then, a competent 
witness? The objection is, that he has not parted with his in* 
terest in the estate. Now, if the deed of Bathbun to Elizabeth 
Peckham is Toid, it is plain that Hall has no interest in this 
suit, for he does not appear as a party in any way, and he has 
merely released his interest without covenant or warranly . But 
if the deed be not void, he has an interest, unless he has divested 
himself of it by his quitclaim made to plaintiffs, before the 
commencement of this suit. Has he so divested himself? If 
the deed of A. B. Bathbun to E. Peckham be regarded as a 
mortgage, then the release of Hall and wife to plaintiffs may 
consistently in equily be considered an assignment, and, surely, 
a mortgagee has a right to assign an equily of redemption, even 
though another mortgagee, claiming by the same title, be in the 
actual possession of the premises. But it may even stand good 
as a release. The defendants, as mortgagees (and only as mort- 
gagees does the bill regard them), were all privies in estate with 
the heirs of Mrs. E. Peckham, and the actual possession of one 
privy is constructively the possession of each, according to this 
title; and this, although the party ia possession claim to be ia 
by an adverse title. The following principle is laid down in 2 
Stark. 657, 5th ed. : " Where a party is ia actual possession, and 
has a right to possession under a legal title which is not adverse, 
but claims the possession under another title which is adverse, 
the possession will not in law be deemed adverse.'' Hence, as 
the actual possession of the defendants, as mortgagees, inured 
to the benefit of all privies, it inured to the benefit of the heirs 
of E. Peckham, and those claiming under them. The plaintiffs, 

Ax. Dxo. Vol. XXXVi— It 



242 Sweet v. jENKiNa [R. L 

therefore, were in a oondition to take, even by ^raj of lelease, 
and Hall and wife's quitclaim may then operate as a release, or 
at least as an extinguishment of their claims under E. Peckham's 
deed, in faTor of the plaintiffs. 

Hall, then, is a competent witness, and ought not to hare been 
named as one of the plaintiffs in the bill. The defendants 
ought, therefore, to account with the plaintifb, and the plaintiffs 
be allowed to redeem. 

Deed is Pbesuicu) to bb Bboorded from the time of ite deUvery to the 
derk: Booth ▼. Bamum, 23 Am. Dea 339, the note to whioh oonfaiins the 
cases in this series upon this snbjeot; and fnictions of a day will be taken 
notice of, when time is material, for the purpose of determining the partio- 
ular time at whioh a deed was filed for reoord: MeiU r, Bnght^ 32 Id. 863» 
and note. 

Absoluts Bbxd icat bb Showv to bb a Mobtoaob, and parol evidence 
is admissible for that purpose. The cases in this series upon this subject an 
ooUeoted in the note to Sweurt ▼. Service^ 34 Am. Deo. 211. 

CoNVBTANOB BY A Gbantob OUT OF POSSESSION: See HaU T. Aihblf, 34 
Am. Dec 424, and note. 

PBBsuMpnoN ow Law is that a Particular Possession is not Adtbbsb, 
but is in subordination to the legad title: Bung ▼. Shonebergert 26 Am. Deo. 
06; Jackson ▼. Sharps 6 Id. 267; a possession is not adverse unless accom- 
panied by a claim to the entire title: Jackson v. Johnson^ 15 Id. 433; the 
subject, what constitutes adverse possession and how it may be established, 
is iUustrated in the note to the case first above dted, in whioh the antfa oiiti s s , 
both in this series and elsewhere, are oolleoted. 



SWBET V. JeMKINB. 

[1 BaODB XSbABB, 147.] 

Local Usaob Inoorsibsbnt wrcu a Contbaot mads at tha plaso 

such usage prsvaik, is not a part of such contraot^ and eaa not be gitea 
in evidence to contradict or avoid it. 

Thb opinion states the facts. 

Samuel Y, AiweUt for the plaintiff. 

* Richard W. Greene, for the defendant. 

By Court, Dubtee, C. J. This action was brought for the 
breach of the special contract set forth in the declaration. Ac- 
cording to the terms of the contract as declared on, the plaintiff 
was to labor for the defendants for one year, for which the 
defendants were to pay him the sum of one dollar and f orty-two 
cents per day. It appeared in evidence that the plaintiff, after 
making this contract, hired a tenement in MansvUle, where it 



ICaich, 1840.] Sweet v. Jenkins. 243 

was to be performed, entered into the occupation of it with his 
fiunily, and commenced labor, and was shortly afterwards dis- 
charged. The plaintiff, not acquiescing in the discharge, but 
«till insisting on the fulfillment of the contract as he understood, 
or seemed to understand it, repeatedly offered to continue to 
labor pursuant to its terms, but his offers were declined. The 
admission or declarations of the agent made at the time, were 
the principal, if not the only CTidence, relied upon to prove the 
terms of the contract. Whether this evidence was sufficient or 
insufficient, is not for the court to determine. The counsel for 
the defendants then offered to prove that there was a usage at 
Mansville in reference to and with a perfect understanding of 
which this contract was made, and that by that usage, either 
party might tenninate a contract to labor for a given time at 
will, without assigning any reason for so doing. To a majority 
of the court, this usage seemed to be against the express terms 
of the contract, and in. fact to annul it, and the evidence in 
sdation to such usage was not permitted to pass to the jury. 
The jury, after having been charged that every essential particu- 
lar of the contract set forth in tihe declaration should be satis- 
Csctorily proved, returned a verdict for the plaintiff, and gave 
damages to the amount of three hundred and sixty-seven dollars 
and fifty-seven cents, and costs. The defendants then moved 
for a new trial, on the ground that the evidence of the usage of 
Mansville was not permitted to pass to the jury, and on the 
ground that the damages were excessive. The motion was con- 
tinued to the present term, when, after argument and further 
advisement, a majorily of the justices (Durfee and Haile) de- 
livered the following as the opinion of the court: 

This motion does not specifically set forth what the usage 
sought to be proved was. Undoubtedly, usages not inconsist- 
ent with the entire contract and of which the parties have notice 
and with reference to which the contract is made, may be given 
in evidence. This court has permitted evidence of a usage to 
discharge, on giving a fortnight's notice, to be proved in the 
trial of an action for the breach of a contract similar to that de- 
scribed in the declaration; for in such a case a contract, absolute 
on the face of it, is complete at its inception and may well stand 
consistently with the usage, just as a deed, absolute on the face 
of it, may stand with a condition existing in parol, which makes 
it a mortgage. But in the case at bar, the contract and the 
usage can not stand together. Either the contract must prevail 
and make void the usage, or, the usage must prevail and make 



244 SwEKT u Jenkins. [R I 

Toid the contract. And, can there be a doubt which of the^e 
altematires should be sustained at law? At law, the contract 
is valid — ^is a legally binding contract from its inception, and 
shall that law permit a usage to be proTed, which makes it void 
at and from its inception ? We must take the contract to be 
precisely as described in the declaration, for the same reason 
that we take the usage to be as described by the defendants. 
Now, the contract described in the declaration, is not a contract 
made with reference to the usage, but against it. The contract 
described, is to labor for a year, but the usage terminates it at 
will. The contract is, by the yery fact of its existence, a protest 
against the usage, for it ceases to be a special contract the mo- 
ment that the usage is made a part of it. 

But, considered in connection with the usage, the contract 
has no legal obligation, and the usage must, in that point of 
Yiew, be regarded as inconsistent with the contract. Let the 
usage explain the contract and what are the terms of the ar- 
rangement into which the parties entered? They are these: the 
plaintiff promises and undertakes for a certain sum to work for 
the defendants for and during the space of one year, if he 
chooses, and the defendants engage to pay and employ him for 
that time, if they choose. This is the contract, if it may be so 
called, which the verbal agreement, coupled with the usage, makes 
for the parties. Now, until the expiration of the year and the 
continued acquiescence of both parties in these terms, the con- 
tract has no binding force whatever; neither party can break it; 
no law can enforce it; and at the end of the year it would not 
be a contract in virtue of the force of its ongioal terms, but in 
virtue of such continued acquiescence. The contract, if the 
usage be a part of it, is at its inception incomplete, without a 
legal obligation, and, therefore, in law a nullity. But the con- 
tract declared on is complete at its date; it is prospective; its 
legal obligation is entire and susceptible of being broken by 
either party at any time during its continuance. A usage which 
annuls such a contract can not be given in evidence, without 
subverting the well-settied rule, that usages inconsistent with a 
contract, can not be given in evidence to affdct it; nor, without 
establishing the very reverse of that role; to wit: that usages 
which ride over and even annul any special contract made with 
notice of the usage, may be given in evidence. 

Again, the usage appears to be contrary to law, inasmuch as 
it incapacitates certain persons in Mansville for making con- 
tracts similar to the one declared on. It is in vain to say that 



Sept 1846.] State v. Wilbor. 24ft 

tibe parties might protest agsinst the usage. It is Bii£Scient that 
Che law imposes upon them no such neoessity, and if it did, the 
oontract itself , from the very tact that it is against the usage 
and can not subsist along with it, is as strong a protest as can 
be made. Where parties contract for a given time, if they can 
agree, this court has always required proof of some justifiable 
oause for a disagreement, but the usage in question refuses to 
assign any cause whatever. 

The damages may be large, but ihey are not so ezcessiTe that 
the court can grant a new trial for that cause. In this opinion 
we all agree. 

The motion for a new trial is therefore OTerruled. 



UsAOB iCAT Bi Showv TO Indioatb thb Intezition of partial to a con- 
tnet bat not to thwart that intention: KendaU ▼. RusaeU, 30 Am. Dec 096; 
■nd if a naage ii shown to eziit in relation to a partioalar trade or pnrftoit, 
oontraoti by persons engaged in saoh pnrsait are presumed to refer to the 
VHge, if it was generally well known and established: Sa/mpwn ▼. Chmotm^ 
Id. 678b Bvidenoe of nsage is admissible to explain the terms of a written 
oontract: Boorman y. JeiMUf 27 Id. 168; bat the parties most have eon- 
tnMsted with referenoe to the usage: Eager ▼. Atlas In». Cb., 25 Id. 363, the 
■ote to iHiloh oontains other esses previoasly reported in this series. 



State v. Wilbob. 

U BnODS ISLAHD, 109.] 

CuiniAXi JtmsDiaaoB or CoxntTs or Justicb for trial of eaoses upon in* 
diotmentor information^ is derived from the general law providing for 
the organization of courts of jostloe, and not from partionlar statutes 
declaring what shall constitute public oflEenses, and prescribing a punish- 
ment therefor. 

AioomATOBT Statutk PBOTiDDro roB THS DzBTBiBUTioN 07 A FzNS im- 
posed as a penalty for a pabUc offense, which provides only for the dls* 
tributlon of such penalty in a manner different from that directed in the 
original act, does not affect the offense defined by such act, nor work a 
repeal of the penalty. 

bcKBASKD Penalty Impobxd bt a Statotx iob a Ssoond OoNvionoir of 
the offense described therein, is not regarded as an increased penalty im- 
posed for the same offense, but as a new and distinct penalty provided 
for another and a separate offense. 

IiiBionfBrr whioh Oovoludma "AOAnrn thx Form or thb Statute,** 
will support a conviction, although the offense charged is the creation of 
several statutes. 

•tatutbs IK Belatiov to thb Samb Oiibhsb must be taken together and 
construed as if the matters to whioh th^ relate were embraced in a sia« 
gle statute. 



246 State v. Wilbor. [R T 

Xhdioiksmt ohazgixig defendant with haying sold liquozs in 
quantities of less than ten gallons mthoat a lioense. The statute 
bj which the act oharged was made an indictable ofEense, was 
passed in 1844. By that statute the penally imposed was fifty 
doUaxs, one half of which was to go to the town in which th» 
offense was committed, and the other half to the state. In 
1846 this act was amended by dizeoting that half of the penalty 
should go to the complainant and the other half to the state, 
and by further providiog that upon a second conyiotion the 
offender should forfeit one hundred doUars, and for ereiy buIk 
sequent conyidaon the sum of two hundred dollars. Defend* 
ant was oonyieted, and moyed in amst of judgment on the 
grounds: 1. That the indictment did not state a puUio oflniBe. 
3. That the court had no jurisdiction to pass sentence upon the 
yerdict. 

J. Jf. Blake, aUomn^'generdl, for the state. 

W. H. PoUer^ for the respondent. 

DnBm, 0. J. This court deriyes its power to cany aii' 
indictment or other common law criminal proceeding from 
the presentation of the bill or information to final judgment, 
not from particular statutes for mafcing certain acts offansea 
against the state or for establishing certain municipal regu- 
lations, but from the act which constitutes and organiaes it. 
as a court A repeal or alteration in any such municipal regu- 
lation or statute touches not the power of the court, howeyer it 
may change its objects or mode of action. Hence, when a stat* 
ute is in part repealed or altered, it becomes not a question of 
power, but of interpretation. In other words, the court is to 
inquire how the original and amendatory acts taken together 
are to be understood, according to the common law rule for in- 
terpreting statutes, and haying thus ascertained their true in- 
tent, it is bound to cany that intent to its final effect, if those 
forms of law through which it must act will admit of it. Now 
the act ia amendment of an act, authorizing town councils to 
grant licenses and for other purposes, does not affect the power 
of the court; it calls upon the court to construe the two acts 
together and give them such a construction as shall render them, 
if practicable, consistent with each other and with our common 
law forms of proceeding by indictment. 

In as far as any question arises in considering this motion,, 
the two acts are in no sense inconsistent with each other, except 
in relation to the distribution of the penally. In eyery other 



Sepi 1846.] State v. Wilbob. 247 

respect, whether we ooncdder ihe penally itself, the proceedings 
by which it is recoTcred, or the act bj which it is incuned, the 
two statutes are perfectly consistent with each other and nothing 
is changed. But then in considering these statutes in the case 
of The State t. Fletcher,^ the court did find that the new distri« 
bation of the penalty did affect certain rights of the town 
(which before the passage of the amendatory act was entitled to 
half the penally in all cases), by transferring those rights, ex- 
cept where convictions had already been obtained, to the com- 
plainants. But this did not change the offense or repeal the 
penalty — ^it only repealed the mode of distribution given by the 
tenth section of the amended act. Yet, though it only affected 
the mode of distribution, the court was and still is of opinion 
that the offense, created by that section, and the penalty there 
given, remain unchanged, and that the only difficulty in recov- 
ering it lies in the fitct that the amending act has left the court 
no mode, so long as it pursues the common law course of ad- 
judication, whereby it can distribute any penalty, incurred prior 
to the day on whic^ the amending act went into effect, except 
in those cases where convictions had already been obtained. To 
have taken a penalty, which had been already incurred and to 
the one half of which the town was entitled under the statute 
before it was amended, and to have given it to the complainant, 
would have been to have given the amending act a retroactive 
effect and to have invested the complainant with rights to which, 
up to the day on which the amending act went into effect, he 
was a stranger; and that in derogation of the rights of the town 
and against the language of the statute. 

It will here be perceived, that this opinion did not touch the 
penalty itself, nor did it touch in any respect the rights or liabilities 
of the respondent. . It was an incident of that opinion, rather than 
its direct effect, that operated his discharge. The court could 
not give the half of the penalty to the town, because the amend- 
ment provided for a sentence that should give it to the complain- 
ant, if a conviction had not been obtained, and it could not give 
it to the complainant, because the act, which was amended, gave 
it to the town, from which it could not be taken without giving 
the amending act a retroactive effect. If this opinion be cor- 
rect, and if the amendatory act does not touch the offense or 
the penalty, but only relates to the form of the judgment by which 
it is to be distributed, the court can not comprehend how it is 
to operate a repeal of that penalty, or how it is to take from the 

1. 1 B. 1. 108. " 



248 State v. Wilbob. [U. L 

court the power of rendering judgment, in any oaae in wfiich 
the penally can be distributed concdBtently with the intent of 
both acts, considered together, and with the rights of the par- 
ties entitled to it. The defendant is indicted for an offense, 
committed subsequently to the passage of the amendatory act; 
but the questions which the former opinion decided, grew out 
of offenses committed prior to its passage — ^none of the ques- 
tions, therefore, decided by the former opinion necessarily arise 
here, nor do any of the principles, on which that decision was 
grounded, properly belong to a consideration of the present 
question. 

It is said the penalty is made by the amending act greater, in- 
asmuch as it is proTiddd that for a repetition of the offense it 
may be doubled. This is a possible contingenqr, but not an 
incident of the sentence. The respondent may again yiolate 
the law, but this depends wholly upon his own will. It is not 
a right of which the sentence will deprire him, nor any result, 
which the court can anticipate, or which ii can take into con- 
sideration as a part of its sentence. It can not consider the 
penalty, by such possible contingency, as increased. To do so 
would be to presume that the breach of law would be repeated, 
and to be solicitous, not for the preservation of the rights of the 
respondent, but to guarantee to him impunity in wrong doing. 
This is not the proper business of the court. At any rate, the 
double penalty is a penalty imposed by the amending, and is in 
no sense inconsistent with the amended statute. It is a new 
penalty, and just as distinct from the old, as if it were to be im- 
posed upon any contingency other than the sentence now to be 
passed. 

It is said that the state can not rely upon both statutes, since 
the indictment concludes by alleging that the sale was " against 
the form of the statute," and not *' statutes" " in such case made 
and provided." But it has been decided — and we are not aware 
that the correctness of the decision has heretof oro been ques- 
tioned — ^that under such an indictment, an offense may be proved 
and the indictment sustained, although the offense may be the 
creation of a number of statutes. All the statutes in relation to 
the same offense must be taken and construed together as if they 
were one statute. 

With these views of the question, which the counsel for the 
respondent have presented for the consideration of the court, 
we are under the necessity of overruling the motion in arrest of 
judgment. 



Sept 1846.] State v. Wilbob. 249 

JfTRiSDicnov or Coubt Dxbivsd fbom Statutb: HwU ▼. Jenrnngs^ 33 Am. 
Dec MHi, 

Statdtk PRMOBUffyo New Rbkedt iob Oivbksb pimiahable «t oommoD 
Iaw does not affect the oommon law remedy, onleM there are negatiTe words 
e^ndiag it: Wetmore ▼. Traefft 28 Am. I>ec. 525, and note. 

iNBIOntlHT COKOLUDIMO '' AOAXMST THE FOBM OF THX STATUTB" it gOod al- 

thoogh the offense chai|^ is also punishable at common law: Setpub. t. New- 
c8, 2 Am. Dea 381 ; if the statnte only prescribes a ponishment for that which 
was a crime before, the indictment need not conclude *'eoiiUra/armaim:** Ccm- 
momoeaUkv. <S^arfe, 4 Id. 446; Peopfe t. J^iodi, 27 Id. 107, the note to which 
omtains citations of cases upon this subject. 

Ssannen KiLaTDro to Samb Omnumnst be constraed togsthsr: Jfonlsf- 
▼. JSTeily 23 Am. Dec 471, and note. 



CASES 



nr THx 



COURT OF APPEALS 

or 
SOUTH OABOLINA. 



Pdtnam V. Gbtmbel 

PBomaMmT Non Patablb to a PABncuLAB Pbhson ob *' Hommdi^ h 
ft valid promiMOiry note, transferable by deliveiy, and thehold«r may ao 
qnlM a lawful title by delivery in the lame nanner as if the word "beanr^ 
had been need. 

Amuxpsit on a promissory note payable to Mancil Owens or 
holder. The plaintiff sued as holder. Demurrer. The lower 
eoort oYerraled the demnner. and defendant appealed. 

SuUivan and Campbell, for the defendants. 

Irby and Wrighi, contra. 

By Court, Btttlsb, J. The word bearer is usually inserted 
in a negotiable note, transferable by delivery. But without it, 
the maker of a note may make it transferable by delivery, either 
by circulation, or using a word of precisely the same import 
As if a note were made payable to A. B., or to any one to whom 
he may deliver it; or to any one who might hold the same by 
delivery. In both cases the bearer would be sufficiently meant 
and designated, although the word was not used. If it was the 
intention of the maker to make it payable to any one who ac- 
quires possession by delivery, he has no right to complain when 
it is presented to him without a written transfer. Holder is a 
word of the same import as bearer, and both may acquire a 
title by lawful delivery, according to the terms of the contract. 
All the law requires is, that the paper must have negotiable 
words on its face, showing it to be the intention to give it a 



Fall T., 1840.] Bentlet v. Betnoldsl 261 

txanfiferaUd qualily by deliveiy; otherwise the instrument most 
be tranateized hj written indorsement, if payable to order; or 
sued on hj the original payee, if there are no negotiable words 
at all. 
The decision below is affirmed: the whole court concorzing. 

WosDS nr Fiu>mi880bt Non SumomiT to C owsmtu t s KioonABunrt 
ITcimid T. Bkiggoldt 6 Anu Deo. 435; CferardY. La OotU, 1 Id. 286. 



Bentlbt v. Beynolds. 

[1 M0MXJU.AKli IWLW, 16.] 

WoBDS NsiD vor Bi KscTSBaAKiLY DsiAMATOBT in ordflT to bo •etionahlob 
Vaisb AaoBXiOBrs FBODVcnvm or Aotual Dakaos to the penon oofnoem- 
log whom they are uttered, wHl enable him to sustain an action of sLan- 
der, provided, that the damafEO of which he complains was not the resolt 
of any acts of others, to whom snob irords were spoken, of so nnlawfol 
a oharaeter, that an aotion for relief might have been sastained against 
snob persons themselves. 

AClKUr HAT BS MAXHTAnrED lOB FaXJB and MALIdOUB Abobxionb by 

which creditors of plaintiff were induced to canse attachments to be 
levisd against his property, whidh otherwise mightnot have been levied, 
and it is not material whether the wofrds were spoken in relation to any 
partieiilar trade or employment of the plaintifll 

Oasb. The opinion states the facts. 

Dawkins, for the appellant. 

Thompson, oantra. 

By Court, Etaks, J. This is an aotion on the case. The 
declaration sets ont, with sufficient certainty, the following facts, 
viz. : 1. That the plaintiff, a citizen of Union district, was absent 
from home attending to some private business, at or in the 
vicinity of the town of Columbia. 2. That whilst he was thus 
absent, the defendant, falsely and maliciously, and with intent 
to injure him, and to produce a belief amongst his creditors that 
the plaintiff was unable to pay his debts, and had absconded, 
and so concealed himself that the ordinary process of law could 
not be served upon him, said, of and concerning him, that the 
plaintiff had left the country, and would not return; that all his 
property, consisting of land and negroes, and other chattels, 
belonged to him, the defendant, until the plaintiff's return; and 
if he never returned, was his absolutely. 3. That in conse- 
quence of these false reports, divers of the plaintiff's creditors, 
believing him to be an absconding debtor, sued out, and levied 



252 Bentlet v. Reynolds. [S. CSaroliiuk 

on his pzoperfyy divers domestio writs of attachment, which 
thej wotdd not have done, bat for the false statements of the 
defendant. 4. That by reason of the premises, the pkintiff was 
obliged to return, suddenly, to Union, leaving his bosinees at and 
near Columbiannfinished, whereby he was put to great trouble and 
expense; and that he sustained great loss and damage in paying 
the costs of the attachments, and discharging his property from 
the liens thereof. To this declaration there was a general de- 
murrer, which was overruled l>y my brother Gantt, at the extra 
court for Union, in March, 1889, and the case came on for trial, 
before me, at the regular term of the court the week after. On 
the trial, all the material allegations in the dedaration were 
proved by witnesses, and the plaintiff had a verdict. The de- 
fendant appealed, and moved this court to reverse the decision 
of the drcuit court on the demurrer, on the ground that no ac- 
tion lies on the case made in the dedaration and proved on the 
trial. There are some other grounds, but this is the only one 
which it is thought necessary to consider. 

The case has been held under advisement for some time, on 
account of some diversity of opinion among us. During this 
interval, I have turned my attention particularly to that class of 
wrongs, for remedy of which an action on the case lies, and the 
result of my examination has been that the imagination of man 
can scarcely conceive of a case where one man has sustained a 
direct pecuniary loss by the unlawful act, the fraudulent con- 
duct, or the malidous words of another, for which an action on 
the case will not lie. The broad rale as laid down in Comjn^B 
Digest is, ** that where one man has sustained a temporal loss, 
or damage, by the wrong of another, he may have an action on 
the case, to be repaired in damage." I do not propose to con- 
sider the great variety of cases in which relief is granted in this 
form of action, but shall confine myself soldy to the inquiry, 
whether the plaintiff's action can be sustained, according to the 
rules of law, and the authority of adjudged cases. To do this, 
we must understand the proper import of the defendant's words, 
as laid in the declaration, and proved on the trial. As I under- 
stand them, they mean: 1. That the plaintiff had conveyed to 
the defendant all his property, without mcJdng any provision 
for his debts, and consequently, intended to defraud his credit* 
ors. 2. That he had removed, or was removing, out of the 
state, without paying his debts, and was therefore either an ab- 
sent or absconding debtor. These words, if spoken of a mer- 
tfaant or tradesman, would have been actionable per se. Thqr 



Fall T., lS4fO.] Bentley v. Reynolds. 253 

are defamatory, for it is said in 1 Com. Dig. 260, title Action 
on the Case, D, 25, that for saying of a merchant or tradesman, 
" that he is fled and gone, and I shall lose my debt;" or '' that he 
is runaway, and never will return," an action lies. Now, it can 
not be questioned that defamatory words, which, if spoken in 
relation to one's trade or employment, are actionable per se, the 
same words, if spoken of another class of persons, are actionable, 
if the person of whom they are spoken has sustained, in conse- 
quence thereof, a direct pecuniary loss. 

But the authorities go still further than this. In Chitty's 
Practice, vol. 1, p. 44, after enumerating the various classes of 
words which are actionable on the presumption of damage, and 
dividing them into four classes, he says: *' Fifth, any words oc- 
casioning actual damage." Thus in Shephard v. WaJceman^ 1 
Lev. 68, '' where the plaintiff was to be married to such a one 
who intended to take her to wife, and the defendant, falsely 
and maliciously, to hinder the marriage, wrote a letter to that 
person, that the plaintiff was contracted to him, whereby she 
lost her marriage. After verdict for the plaintiff, it was moved 
that the action lieth not, the defendant claiming title to her 
himself, like as Oarard^s case, 4 Co.,' for slander of title. But 
after divers motions the plaintiff had judgment, for it is foimd 
malicious and false." This case fully sustains the text in Chitiy, 
that words occasioning actual damage are actionable, and that it 
is not necessary they should be defamatory. This doctrine, 
however, must be taken subject to the limitation that the injury 
complained of must not be the unlawful acts of others, because 
they are answerable themselves, and the damage sustained must 
be the immediate consequence of the defendant's words: 8 T. 
B. 1;* 2 Stark. Ev. 872. In conclusion, I am satisfied the loss 
sustained by the plaintiff was the direct consequence of the 
false and malicious assertions of the defendant. It is so alleged 
in the declaration, and was so proved on the trial; and also, that 
the suing out the attachments was not such an act as would have 
sustained any action, against those who sued them out, by the 
plaintiff. It is alleged in the declaration, and the demurrer ad- 
mits it, that the design of the defendant was to produce a belief 
among the plaintiff's creditors that he had absconded, and so 
concealed himself that the ordinary process of law could not be 
served. He has no ground to complain that they believed him 
and acted accordingly. 

The motion dismissed. 

1. Oward T. JHd e m nm , 4 On. 18. 2. VUmn T. IHIeodbt, 8 



254 Babnwell v. Magrath. [S. Carolina^ 

Qabit, O'NBAix^EABiJByandBtriXiEB^JJ.^concnned. RmffAWv 
•ON, J., diBsexited. 

WOBDB ImPUOVINO THB SoLTUTOr OF A PlBSOV AND IlCPAIBOrO HO 

Cbjbdit, are aotioDAble, though not apoken in relation to hia trade or puraott: 
Ikwia T. Etift 34 Am. Dec. 584, in the note to which the caaea previo na ly re- 
ported in thia aeriaa will be foand. 



Babkwbll v. Magbath. 

[1 MoHuuuora L4W, 174.] 

O moMvno v of a Wat bt thb EsionoN or a Oatb THsaaov, which may 
be opened and ahat at pleaanre, ia not each an obatmotion aa will 
operate to extingaiah the claimantfa ri^^t of way, however long it may 
have been oontinaed. 



Qasi. In 1794, Shufariok laid out the village of 
and afterwards closed np the streets so laid out, except the 
one in dispute, leading from the proposed townnsite, to a wharf 
on the riTer. As far back as the memory of the witnesses ex- 
tended, for a period of more than forty years before the com- 
mencement of this action, a gate was erected, and had ever since 
stood across the road. The gate was fastened by a latch. The 
plaintiff had been allowed to pass until he claimed the privilege 
as a matter of right, when the gate was shut and locked. The 
juzy found the plaintiff to be entitled to the way. Defendant 
appealed* 

A. 0. Matgraffi, for the defendant. 

M)Oready and MaMy<dc, contra. 

By Oourt, Eablb, J. The verdict of the jury has established, 
that the plaintiff had a right to the private way which he 
claimed. It is not material to the determination of the ques- 
tion, made on the motion for a new trial, to inquire how the 
right was first acquired. The agreement between Colonel Shu- 
brick, under whom plaintiff derives title, and the three persons 
who then owned the premises now held by the defendant, first 
gave rise to the way in question; and is supposed to have 
been a dedication of it to the public. But as the attempt to 
build up the village of Belvidere proved abortive, there was no 
public to acquire the right of way there, by actual use, which 
was confined to the covenanters themselves, and those ftlAiming 
under them. The use was strictly private, and seems to have been 
continuous for more than twenty years. The land on which the 
way lies, belonged to Shubrick. It is not the case of a private 



Feb. 1841.] Babnwell t;. Maqrath. 265 

way oyer another^B land, and of an obstraotion hj the owner. 
Shnfaridc dedicated the way, or granted the right to nae it, to 
Edwards, Grant, and Simons, from whom the defendant derived 
title, and to all others, as the street or road of BelTideve. The 
plaintiff derives title from Shufariok, to a portion of the same 
lands, composing Belvidere, to which the way was appurtenant, 
and may be said, therefore, to have the right of way, l>y express 
giant, or by necessaiy implication. We can not suppose the 
absnrdity in a legal point of view, that Shnbiick, by granting 
to others a right of way, should deprive himself, and those 
holding under him, of the right to use the way. The defend- 
ant's title deeds and accompanying plats demonstrate, not only 
that the way is not over his soil, but that the existence of it has 
been admitted by those under whom he daims, as well as by 
himself. The court is therefore satisfied there is abundant evi- 
dence to sustain the plaintiffs right of way. 

This right, however, is supposed to have been extinguished 
fay a long-continued obstruction, and as the defendant's gate 
was put up on the way in 1829, which was an appropriation of 
it to himself, and a denial of a right to others to pass over it, 
that the plaintiffs right of action was likewise gone. No 
doubt a right of way may be extinguished in several modes; 
and especially the erection of a permanent obstruction, which 
necessarily hinders the exercise of the right, would operate to 
annihilate it. How long such an obstruction must be permitted 
to exist, in order to raise a presumption that will overthrow the 
xight, or lose the remedy by action, we need not consider. The 
only question on this part of the case is, whether the erection 
of a gate across the way, which is opened and shut at pleasure, 
by all who pass, is such an obstruction as would have the effect 
to extinguish the right of way; and we are clearly of opinion 
that it is not. It is a modification of the right which may be 
prescribed; but it is not an obstruction that prevents or hinders 
the use of the way; and, therefore, however long continued, 
would not have the effect of extinguishing the right, or of baxring 
the remedy. In Capers v. TFtbon, Mr. Justice Nott expresses a 
doubt whether -\ gate of that kind would be such an obstruction 
as would givi ». right of action. We think, therefore, that the 
verdict is right, and the motion to set it aside is refused. 

The whole court concurred. 



PSBMANKHT ObSTBITOTIOK OT AN EaSKMSNT BT THS PaRTT H1M8BLV WILL 

Dbstbot IT: Taylor v. HampUm^ 17 Am. Deo. 710; but omittiiig to remove 
aa obetmctioii placed there by the defendant ie not an akiandonment: Bogen 
▼. ^Steuori, 28 Id. 298. 



266 Oaluott v. Fulntebs & Mbchanics' Bank. [S. CSarolina^ 

GaiiLiott v. Plaktebs and MsoHAinoB' Bahk. 

(1 MdHuLuara Law, SOQ.] 

Rknbwal of a Notb Prbviouslt Givxir bt tkx Sakb Pabtxbs is noffe » 
ooatbaation of a prior oUigatioii, bat is a new, separate, and dlstinet 
oontraot. 

PABTKK& CAN NOT BiND THE FiKM AFTBB DiBSOLUTioir by hu indiTidiial aot 
in the partaership name, without ezpreas authority for that purpose. 

PoBUOATiON or NonoB OF DnaoLimoN of CoPAsnrBBSHiP In a news- 
paper is saffioient notioe of such diMolntlon, to one taking a promissory 
note upon the faith of the firm's sabseqnent indorsement. 

AssincpfiiT. A promissory note bearing the names of Ghd- 
liott & LefeTre as indorsers was discounted by the Planters 
and Mechanics' bank. The note was dated December 81, 1837. 
The partnership between the defendants, indorsers, had been 
dissolred on November 14 of the same year. Notioe of 
such dissolution was published in the newspapers. The note 
was a renewal of another note by the same drawer, indorsed by 
defendants, and was regularly presented and protested. The 
indorsement was shown to have been made by the wife of one 
of the defendants, he being unable to write, but it was not shown 
that the firm while in existence had given her any authorily for 
that purpose. Verdict for plaintiff. Defendant moved for a 
new trial. 

Cooper^ for the motion. 

Memminffer, cotiira. 

By Oourt, Eablb, J. The copartnership of the defendants 
having been dissolved before the making of the note in question, 
and notice having reached the plaintiff, neither of them could 
bind the other by signing the partnership name, without express 
authorily. It does not vary the case at all, that the note sued 
on was a renewal of one indorsed and discounted before the dis- 
solution. It is well settied that each renewal is a new contract. 
If Lefevre himself could not bind Galliott by signing the part- 
nership name, it would be very strange if a third person, although 
the wife of one of them, could do it without authority from 
either. The revocation of all that she had previously done, was 
complete by the act of dissolution, and there is no proof of any 
given to her afterwards, either by Galliott or Lefevre. The 
plaintiff, therefore, can not recover on the note. It is equally 
clear that he can not recover on the money counts. To say that 
a note discounted by the maker, is evidence of money lent to the 
indorser, is a novelty. Such a proposition is opposed to the 



Feb. 18*1.] State v. Jones. 267 

common usage and genexal experience of men, and the defend* 
ants conld only be charged upon dear and explicit proof, that 
in fact, the note was disconnted for their benefit, and that they 
received the money. 
Motion granted. 

The whole court concurred. 

PuBuoATioK OF NoTiGB OF DxsaoLunoN OF CoPABTNXBsmp in ft news* 
paper ia mifficient as to BtnngeFB: Waikhuon v. Bank ofPenn,, 34 Am. Deo. 
521, in the note to which the cases in this series upon this subject are referred 
to. 

PAsma'iB Aozs afteb DxsaoLinnoii of the partnership will bind the other 
partners nnlees notice of the dissolation be given: Price ▼. TVuMy, 14 Am. 
Dec 81; bat a partner may assign the firm's interest In abond: Mct99 t. Bd" 
fom, 28 Id. 372; a partner can not, howeyer, bind the firm, by indorsement 
•Iter diasdbtlon: NaU t. IHmmimg, 26 Id. 401. 



Staxe v. Jones. 

[1 MclCiixjuarB L4W, 9W.] 

WoBDS *' Warraht and QBDKa" MAT BB Statkd OoKJ UHO T ivKL T bi indiot- 
ment for forgery without vitiating it, although in the statute under 
which the indictment is framed the disjunotiTe expression "warrant or 
order" is employed. 

Ko Matxbial Variaitcs Ezms betwebx an Ikdictmxht fob Fobobbt 
and the proof adduced in support of it, where the indictment describes 
the forged instrument as a "paper writing," and the proof shows it to 
have been partly printed, and partly written. 

fimioncBBT Kbbd kot Set Fobth that a bank was incorporated under the 
laws of this state or of the United States, by a specific allegation, but if 
it be averred that a forgery was committed, with intent to defraud » 
particular bank, descrilnng it by its corporate name, and it appears that 
there is such a corporation incorporated by a public statute, the court 
will take Judicial notice of such act of iucorporation, and the indictment 
is sufficient without any further designation of the bank by its name. 

Atbbmknt that AN Instbumbnt was Fobobd, with intent to defraud an 
incorporated bank, is not rendered defective by the fact that the instru- 
ment, as set.out in words and figures in the indictment, appears to be « 
cheek drawn upon the "cashier^ of such bank. 

ISDiorMBRT Chaboxko THAT A Wbittbn Instbumeht purported to be the 
warrant and order of "Tristram Tupper,*' and then setting forth the 
iDstrument in words and figures in full, avers that it was forged with 
intent to defrand " Tristram Tnpper," is not objectionable on the ground 
of variance, merely because the copy of the instrument shows that it was 
signed by "T. Tnpper." 

Date of a Foboed Check is Sufficient Evidence of the place where it wb* 

made, if it be shown also that the defendant was in that place at the 

date of the check and had it in his po s s ess ion. 
AM. Dm. Vol. lXrVT-17 



258 State v. Jones. [S. Carolina^ 

OOWICTTOK lOB FOBOXBT IN SoUTH CaBOLIVA MAT BB SUSTAINED, either 

under the act of 1736, or the act of 1801, or at the common law. 

Ikdioticxnt for foigeiy. The indiotment charged the false and 
felonious makings uttcaring, and publishing of the folloinng 
paper writing: 

''No. 73. Charleston, S. C, February 19, 1840. Cashier 
of the bank of Charleston, So. Ca., pay to Qeo. W Jones, or 
bearer, thirfy-two dollars ($32.00). T. Iuffbr." 

It was proved that defendant had endeayored to negotiate 
this check in Charleston on the day of its date. The f orgerj 
was also established beyond question. The following excep- 
tions were taken, and urged on this appeal from a judgment of 
conviction, in support of a motion for a new trial: 1. The in- 
dictment described the forged instrument as a " certain warrant 
and order:" the language of the statute imder which it was 
drawn was "any warrant or order." 2. The instrument was 
described as a " certain paper writing," and the proof showed 
it to have been partly printed and partly written. 3. The in- 
dictment did not all^e that the corporation which it was 
intended to defraud was incorporated imder the laws of the 
state. 4. The indictment alleged that the intent was to defraud 
the bank of Charleston, S. C, while the check itself appeared 
to be drawn upon the cashier of that bank. 6. The indictment 
alleged that the check purported to be the check of Tristram 
Tupper, while the check was signed T. Tupper. 6. The indict- 
ment alleged that the intent was to defraud Tristram Tupper, 
while the tenor of the check showed it to be the check of T. 
Tupper. 7. There was no proof where the check was forged. 
8. The jury was charged that the prisoner might be convicted 
under the act of 1736 or the act of 1801, or at common law, 
although the offense was charged to be against the act ol 
assembly, etc. 

SimmoTis and Wtlaon, for the motion. 

Baiiey, attomey^enercU, contra. 

By Court, CNsall, J. The different groimds of the pris- 
oner's motion have received from the court a deliberate consid- 
eration, and it is now my duty to give the judgment upon them. 
This shall be done in as few words as possible. 

The first ground objects to the manner in which the indict- 
ment describes the instrument forged, " a warrant and order," 
when the acts of 1736-7, and of 1801, speak of "a warrant ox 
order." I had, on the trial below, and I have now, no doubt 



Feb. 1841.] State v. Jones. 259 

that £he indictment sets it out pioperly. The legislature em- 
ploys two words to describe the same thing. A warrant for the 
payment of money or the delivery of goods, is an order, and an 
order for the same purpose is also a warrant. Indeed, the man- 
ner in which they are used in the acts: ** any warrant or order 
for the payment of money or delivery of goods," shows that one 
instrument was intended to be described. The same thing is 
supposed to be accomplished by either, and hence having the 
flame effect, they must have the same meaning. They are synon- 
ymous, and have been always so regarded. In The State v. 
Holly, 1 Brev. 37, decided in 1800, by Waties, Bay, Johnson, 
Ramsey, and Trezivant, it was said, ** that the obvious meaning 
of the words ' warrant or order,' in the sense used in the indict- 
ment, can not be fairly misunderstood, the words being evi- 
dently intended to express the very same thing. " And they held, 
although in that case they were used disjunctively, " warrant 
or order," yet that the indictment was good. It is clear, be- 
yond all doubt, if they mean the same thing, they ought to 
be laid conjunctively, and using them otherwise might be ob- 
jected to. 

The second ground objects that the forged instrument is de- 
scribed as a "paper writing," when it is partly printed and 
partly written. There is unquestionably nothing in this ground. 
An instrument signed by a pariy is, in legal parlance, the pax>er 
writing of such a party. It is his signature to it which gives it 
that character, and not the body of. the instrument. In a de- 
claration on a note of hand, it is described as a note in writing, 
although every word except the signature may be in print. So 
of a bond partly written and partly printed, it is said to 
be "the writing obligatory" of the partly executing it. The 
manner in which an instrument forged is to be set out is well 
settled. In 3 Com. L. 1040, it is said, " every indictment for 
forgery must set forth the instrument charged as fictitious, in 
words and figures, so that the court may be able to judge from 
the record, whether it is an instrument in respect of which 
forgery can be committed." This rule is fully complied with in 
this case, for the warrant and order is exactly set out. 

The same author, at the same page, says: " Though it is suf- 
ficient to aver that the defendant forged a certain writing, 
describing it truly, and setting forth its tenor, it seems more 
proper to lay it as a certain paper writing, purporting to be [one] . 
which the statute on which the indictment is framed, describes." 
The instrument in this case is described in the veiy words used 



260 State u Jones. [S. Carolira,' 

in this case. I have looked into Water^s case, 8 Brey. 507, aad 
haye been pennitted to examine the indictment on file in Ihe 
clerk's office; the bank note in that case was not described as 
partly printed and partly written. That indictment was drawn 
l>y Mr. Justice Bichardson, then attorney-general, and Ihe 
prisoner defended l>y Mr. Wilson, one of the counsel for the 
prisoner now before us. No objection was taken to the 
indictment on that account. The only case in which I haye ob- 
seryed that the instrument was described as partly printed and 
partly written, is the case of Bex y. WUoaXt 1 Eng. Grown Oas. 
60. In that case the judgment was notwithstanding arrested, 
because the indictment did not state what the instrument waa 
of which the forgery was alleged to haye been committed, nor 
how the pariy signing it had authority to sign it. 

The third ground insists that the indictment does not set out 
that the party whom it is intended to defraud, if a corporation, 
was in the United States, or within this state, or if a person was 
resident in this state, or within the United States. This partio- 
ularily is supposed to be necessaiy under the act of 1801, 2 
Faust, 879, which in the first section proyides '* that if any 
person, from and after the passing of thia act, shall, withiii 
this state, falsely make, forge, or counterfeit, or willingly act or 
assist in the f^se making, forging, or counterfeiting of any 
deed, will, testament, bond, writing obligatory, bill of ex* 
change, promissory note for payment of money or deliyery of 
goods, bank note, for payment of money, of any incorporated 
or unincorporated bank or company within this state or any of 
the United States, or any indorsement or assignment of any bill 
of exchange or promissory note for payment of money, or of any 
bank note for the payment of money, of any incorporated or 
unincorporated bank or company within this state or any of the 
United States, or any acquittance or receipt, either of money 
or goods, or any acceptance of any bill of exchange, or the 
number or principal sum of any promissory note or bank note, 
for the payment of money, of any incorporated or unincorpo* 
rated bank or company, in this state or any of the United 
States, or the number or principal sum of any accountable re- 
ceipt for an} note, bill, or other security for the payment of 
money, or any warrant or order for the payment of money, or 
deliyery of goods, with intention to defraud any person or 
persons residing or being within this state or any of the United 
States, or any bank or company, incorporated or unincorporated, 
within this state or any of the United States, or the president or 



Feb. 1841.] State v. Jones. 261 

any other officer of any such bank or company, then e^eiy such 
person, being lawfully thereof conyicted, shall be deemed guilty 
of felony, and shall sujBer death, as a felon, without benefit of 
clergy." 

Two questions here arise under this act: 1. Is it necessary to 
set out in the indictment that the bank or person intended to be 
defrauded, is within this state, or some other of the United 
States ? 2. Is the act of 1801 a repeal of the act of 1786-7 ? 
and if it is not, are not the third and fifth counts good under it? 
and the first count under the act of 1801 ? admitting it to require 
that the bank to be defrauded should appear, from the indict- 
ment, to be in this state, or some other of the United States. 
In passing upon the first question, I would first remark that on 
examining Waters' indictment it seems that the learned attor- 
ney who drew it alleged that the bank note then forged, was so* 
forged with intent to defraud an incorporated bank within this 
state, and in another count a person within this state. This is 
the only precedent to which I ha^e had access, and as that 
offense had to be covered by the act of 1801, or not be pun- 
ished capitally, I have no doubt it was so cautiously drawn from 
the decision in H(m6edL*8 ccise, to which I shall presently refer. 
My brothers Evans and Earle, and Chancellor Johnson, who 
long filled the office of solicitors, agree that no such particular- 
ity was resorted to by them. In EouseoTs case, 2 Brev. 219, 
the judges held that '' the offenses charged in the indictment, 
are not pursuant to the act of assembly of 1801, and are not 
within the scope or intent of that act, because the persons in- 
tended to be defrauded are not stated to be within any of the 
United States." This, I confess, is a decision on the point now 
before us, although it is not, perhaps, conclusive authorily, in- 
asmuch as that point was not necessary to the decision of the 
cause. That decision out of the way, I should not hesitate to 
say, that there is no necessity to set out that the bank or person 
intended to be defrauded, is within the state. It is no portion 
of the definition of the offense; and when a forgery is charged 
to be in fraud of a bank, or an individual, it is to be inferred 
thut they are within the state, unless the contrary be alleged. 
If the proof does not correspond with the indictment, as under- 
stood or expressed, the prisoner would be acquitted. But I 
yield my own judgment to that decision, and it is therefore 
necessary to inquire whether the act of 1801 is a repeal of the act 
of 1736-7: Act of 1736-7, sec. 3, P. L. 147. 

The latter is more general in the respect in which we are con- 



262 State v. Jones. [S. Carolina. 

sidenng it than the former. It provides, inter alia^ that '' to 
falsely make, forge, or counterfeit any warrant or order for the 
payment of money or delivery of goods, with the intention to 
defraud any person," shall be a felony. By comparing the two 
acts, it will be found that that part of the act of 1801 which re- 
lates to banks and companies, incorporated or unincorporated, is 
not within the act of 1736-7 ; and that the act of 1801 is more re- 
stricted as to the person to be defrauded than the act of 1786-7. 
The act of 1801 contains no repealing clause, and can, there- 
fore, only be a repeal of the former act, by implication. This 
is not favored, and unless there was some contradictoiy or re- 
pugnant provisions, there can not be any implication of repeal. 
There is nothing of this kind; the two acts may well stand to- 
gether; the latter applying to its peculiar subject, and the for- 
mer governing those felling within its provisions. They can 
not be construed in pari materia, for they do not entirely relate 
to the same subject-matter. This point, however, was expressly 
adjudged in HouseaVa case, 2 Brev. 222, and if that case is au- 
thority for the precision with which the offense must be laid, 
under the act of 1801, it must also be for the non-repeal of 
the act of 1736-7. In it, the judges said, it does not 
appear to us that these two acts are repugnant or con- 
tradictory, or so inconsistent as that they may not well 
stand together. The latter, to be sure, is more limited and 
confined in its operation, than the former; but there does 
not seem to be any necessity for construing this latter so as to 
operate the repeal of the former; nor wotdd there be any pro- 
priely in so doing. The acts of congress of 1790 and 1819, 
were passed on the same subject (piracy); they differed in some 
of their provisions; they were both held to be in force; Elin- 
tock was adjudged to be within the act of 1790, and Smith 
within that of 1819: 5 Wheat. 144,* 163.' The act of 1786-7 
being in force, the third and fifth counts are so framed as to 
bring the prisoner within its provisions, and, as was ruled in 
Houseal's case, his conviction on those counts must be sustained 
under it. 

The first count, however, charges the forgery to be with in- 
tent to defraud the bank of Charleston, South Carolina, and 
this must be sustained under the act of 1801, or fail. I think, 
however, that this count is sufficientiy framed to be supported 
under that act. It is sufficient, if it appear to be an incorpo- 
rated bank within this state. The bank is described by its cor- 

1. ir<»tt«f ;Sffatei T. KUntO€k. X UniUd Siatei r. ffmCA. 



y 



Feb. 1841.] State v. Jokes. 263 

poiate name, the bank of Oharleston, Souiih Carolina, which 
Bufficienlly shows that it is a bank within this state. It is, too, 
inoozpoiated by a public act, and we are judicially to take no- 
tice and be informed of this fact, and there is, therefore, no 
necessity for more than the designation of the bank by its 
name. The first ootmt is therefore sufficient. 

The fourth ground contends that the first count is defective, 
ya it alleges the intention to defraud the bank of Charleston, and 
the tenor of the forged warrant and order for the payment, 
shows that it was made to defraud the cashier. There is nothing 
in this ground. The intent of the forged writing is to with- 
draw the funds of the supposed signer from the bank, and this 
makes it a fraud intended upon it. The cashier is a mere officer 
representing the bank, and a paper drawn upon him as such, is 
drawn upon the bank. If the teller had paid the forged war- 
rant or order in this case, the bank must have lost the credit of 
so much in a settlement with Mr. Tupper, the supposed drawer. 
It may be that the bank might hav^ compelled the officer mak- 
ing the payment to refund, and thus replace its loss. Still, this 
does not prevent the fraud from being of the bank and not the 
officer. 

The fifth ground alleges that the third count is defective, in- 
asmuch as it supposes that it sets out the forged writing as pur- 
porting to be of Tristram Tupper, when the tenor shows that it 
was of T. Tupper. This ground was framed upon the fourth 
ground, which was sustained as fatal to the. indictment, in 
HauseaTs case. But unfortunately for the prisoner, his ground 
here is founded in mistake; the indictment in the third count 
does not set out the paper writing as purporting to be the war- 
rant and order of Tristram Tupper, but as purporting to be a 
^mixant and order for the payment of money, and then sets it 
out in hoBO verba, and avers the prisoner's intention to be to de- 
fraud Tristram Tupper. There is no variance here, and the 
count is well framed. 

The sixth ground is a mere variety of the fifth, and was in- 
tended to apply to the facts. The jury found that the paper 
signed T. Tupper, was intended to represent Tristram Tupper, 
and thus to defraud him, and the proof too well sustains 
their conclusion. 

The seventh ground supposes there was no proof where the 
warrant and order was made. It is only necessary to read and 
understand the report to see that here again the prisoner has no 
just ground of complaint. Two facts were ascertained; it pur- 



264 Mitchell u McBee. [S. GaroIizia» 

ports to be made in Charleston, and the prisoner was in ChaiieB- 
ton at its date, and had it in possession. These were enough to 
show where it was made. 

The eighth gronnd supposes there was error in saying to tbe 
jozy, that if the prisoner was guilty in &ct, his conviction might 
be sustained under the act of 1736-7, the act of 1801, or at com- 
mon law. There certainly can not be any doubt upon this, as a 
legal proposition, but as it is questioned, in proof of its aooa- 
xacy, I will refer to Haaseal'a case, 2 Brev. 219, and to Ibster^M 
case, 3 McCord, 442. 

The prisoner's motion is dismissed. 

Etahs, Eablb, and Butlbb, JJ., oonourxed. Gahtt and Bxb- 

ABD80H, JJ., 



Ths Dxobbb of Cbbtaintt Ebquikkd nr IiiDioiMEHTa it oertaintj ta a 
oommon and general intent only, and not certainty in eTory partkalar: 
Sherbum v. ComrnonweaUk, 34 Am. Deo. 460, the note to wliich refen to 
■iinilar oaaee hitherto reported in this aeries; as to what was, at oommon law, 
a sofficient indictment for forgery, see 8kiU v. Pheipa, Id. 872, and note. 



MlTOHELL V. MoBeE. 

[1 HoMuLLui*! Law, 287.1 
VbNDKB who AOCEPT8 A OONBiaNMBOT OF GoODS 17F0V WHIOH TKX PUCBS 

A&B Mabked, is presumed to have taken them at the vendor's prioes as 
marked, or as stated in an accompanying invoice, unless it should appear 
from a costom with which both were acqnainted, or from the course of 
previous dealing between the parties, that the vendee had a right to re- 
duce the prices according to the estimated value of the goods at the 
place of consignment. 

This was a proceeding by attachment against Purdy, in which 
defendant was summoned as garnishee. McBee & Irvin, co- 
partners, ordered certain goods from Purdy at New York. 
Soon after the arrival of the goods at their place of destination 
in South Carolina, Mitchell sued out an attachment against 
Purdy, a copy of which was served on defendant. McBee & 
Irvin, having appropriated the goods, wrote to Purdy that some 
of the goods forwarded were different from what their order to 
him called for, and that the price charged was too high. Purdy 
then wrote to Nicol, at Greenville, South Carolina, where defend- 
ant resided, to effect a settlement, which Nicoi stated could have 
been done but for the attachment. The issue here is, whether de- 
fendant is liable as garnishee for the invoice price of the goods. 



Spring T., 1841.] Mitchell v. McBee. 205 

There was a verdict for defendant. Plaintiff moved for a new 
iriaL 

Ohoioe^ tot the motion. 

By Court, Butlbb, J. In addition to the faots stated in the 
feporty it was admitted in the aigoment of this case, that de- 
fendants Tvere opening the goods when the attachment was 
«erved on them. Of course, thej then had it in their power to 
refuse to take such goods as were not ordered, and others 
•charged at higher prices than they were willing to give. In- 
stead of doing this, and giving notice to Pordy of their objec- 
iion and refusal to accept the goods, they received and appro- 
priated them. Some days afterwards, but when the rights of 
the parties were fixed under the contract, they wrote to Purdy, 
intimating their dissatisfaction. By their conduct they made 
themselves parties to a contest which they might have left with 
the plaintiffii and Purdy, and have rendered themselves account- 
able for the value of the goods, under the terms of the contract 
between themselves and Purdy. They have voluntarily assumed 
41 position which they could well have avoided, for they could 
have restricted their liability to pay only for the goods which 
they had ordered, and which they were willing to receive at the 
prices specified, leaving the others in the hands of the sheriff, 
to be disposed of under the order and judgment of the court 
Having accepted all the goods, the defendants have given to the 
plaintiflfh the power to insist upon and enforce Purdy's rights, 
whatever they were at the time the goods were received; and it 
was not in Purdy's power to defeat these rights, by any arrange- 
ment which he might choose to enter into, with a view to preju- 
dice the plaintifb. By the voluntary act of the defendants, the 
plaintifb are placed in a situation in which they can insist on 
their absent debtor's strict legal rights. The question is, what 
joe these rights,' by the legal operation of the contract under 
which the goods were received ? The vendor sent them on with 
their prices specified in the invoice that accompanied them. 
One party says, in effect, I send you these goods, at the prices 
mentioned; and if you take them, you know what you have to 
pay. The other purty, the vendee, says, no, although I did not 
dder these partictdar goods, I will take them, but I will not 
pay your prices. I will have the goods subject to another valu- 
ation, against your consent, and will pay you in Greenville, as 
much as they are there estimated to be worth. The one insists 



266 Mitchell v. McBee. [S. Carolina^ 

on his own prices, perhaps according to yaluation in New York, 
and the other on a quanium vcU^hU, to be determined at Green* 
ville, the place of consignment. In an action for goods sold 
and delivered, where no price was agreed on by the contracting 
parties, or where the vendor has not put a specific price on them 
when he sends them to the vendee, the vendor must recover, and 
quantum valebat to be ascertained by evidence on the trial. 

But when the price has been agreed on, or where the vendor 
sends goods with his prices marked upon them, and they are ao- 
cepted by the vendee, the law will imply that ibey were taken on 
the vendor's terms, unless it should appear from the course of 
previous dealing between the same parties, or from some custom 
with which both were acquainted, that the defendants had a right 
to reduce the prices to a qv/mtum valebcU, at the place where they 
were received. For in such case the contract might be supposed 
to have been made in reference to the custom or course of deal- 
ing. In the absence of these, the general principles of the law 
must prevail. It seems to me, that no one should be obliged to 
part with his property against his consent, except on his own 
terms; and if the defendants in this case can take these gooda 
and put their own prices on them, or by the estimate of their 
own witnesses can reduce the prices, the vendor might be com- 
pelled to part with his property at prices lower than he was will- 
ing to take, and below their true valuation. It is enough to say, 
that the vendor could not compel the vendees to take the goods 
against their consent, upon his own terms, and it is reasonable 
that he should not be deprived of them against his consent upon 
the terms of the defendants. The case stands thus between the^ 
parties: The defendants sent to Purdy for certain goods of a 
particular description; he sends others not ordered or contracted 
for, and at higher prices than were implied in the contract, and 
the defendants receive and appropriate them. Now, what should 
be law on the subject? I have examined the cases referred to by 
Mr. Starkie in his second volume on evidence, p^e 640, and I 
think he has extracted and laid down the principle correctly: 
''Where there has been a special contract as to the nature, 
quality, and price of goods, and those which have been delivered 
do not correspond with the contract, it is clear the vendee has a 
right to repudiate goods so delivered in Mo; for having con- 
tracted for one thing, the vendor can not substitute a contraoi 
for something else; and therefore, if he return the goods, or give 
notice to the vendor to take them back, it is clear the vendor 
can not recover," etc. If, however, the vendee in such casea 



Spring T., 1841.] Dial u Farrow. 2G7 

choose to keep the goods, he can not reduce the special contract 
to a mere quanium vcUebai^ etc., he must pay the price or return 
the goods. The question of amendment was within the discre- 
tion of the judge below. 

In this view of the law, we think a new trial should be granted 
in this case, which is accordingly ordered. 

0Vs4LL and Eyass, JJ., concurred. 



Dial v. Fabbow. 

[1 Xdafu&LAX^ Law. 399.J 

Oorar ow Law mat Vaoatx and Set aside its Judomsmt when foimded 
in fraud, or rendared under circomstanoeB of siirpriae or miitake sach m 
to entitle the injured party to relief against it. 

PaaonOB ufok Motion to Set asidb a Judqmxht at Law tor Fkaud, 
ii for the oonrt to canae an order to be entered, after a sufficient show- 
ing baa been made in snpport of the motion by appropriate affidavits, re- 
quiring the plaintiff to show cause, at an appointed time, why the judg- 
ment in his favor should not be set aside and vacated. 

MonoN to Tacate and set aside a judgment. The application 
was made upon affidavits stating that the signatures of the ap- 
plicants to a certain confession of judgment were false and 
forged, upon which they asked to have the judgment set aside. 
The motion was denied for want of jurisdiction. Defendants 
renewed tiie motion in the appellate court. 

JMfy, for the motion 

Young, coTUra, 

By Court, O'Nball, J. That the court of law has not the 
power to set aside its own judgments, when foimded in fraud, 
would be a strong proposition. For certainly if the judgment 
becomes thereby void, and another tribunal could relieve against 
it, there can be no good reason why the court pronouncing the 
judgment should not vacate it. Indeed, there is great propriety 
in a court vacating its own judgment, when it is rendered under 
such circumstances of mistake, fraud, or surprise, as would en- 
title the party to relief elsewhere. The case of Posey v. Under- 
voood, 1 Hill, 262, states the true rule. The power of setting 
aside judgments, it remarks, '' is exercised as between the parties, 
on matters out of and beyond the record, as when a judgment 
has been obtained by duress, by misrepresentation to the de- 
fendant, or an abuse of the process of the court. " The case made 



268 MuBEAY v. S. C. Railroad Co. [S. Carolina^ 

by the affidaTits is, that the confession was not signed by the de- 
fendants, Mary Dial and William Henderson. If this be so, the 
predicate of the judgment is destroyed, and the court had no 
power to give it, and it is as much a duty to set it aside, as it 
would be to set aside a judgment where the defendant had not 
been served with ^process. I think it is very probable, from the 
affidavits submitted on the part of the plaintiff, that there is no 
foundation in fact for the motion to vacate the judgment. 

Whether there is or is not, it is perfectly clear that no blame 
•can attach to the plaintiff, for if the defendants have been im- 
properly subjected to the judgment, it has been by the forgery of 
their co-defendant, G. C. Dial, committed vdth a view to de&aud 
the plaintiff. The collision between the affidavits makes it neo- 
•essary that the case should pursue the only course by which 
truth can be elicted — a trial by jury. The proper course would 
have been, on the showing of the defendants, to have granted a 
rule against the plaintiff, returnable to the next term, to show 
•cause why the judgment should not be set aside, and to have 
•directed that the affidavits submitted by the defendants should 
be filed. To them the plaintiff would have answered by filing 
counter-affidavits. But as affidavits on both sides have been 
submitted, and the conflict in fact is apparent, the order will be 
made at once, which the circuit judge might have made. The 
motion to reverse the decision below is granted. The affidavits 
submitted by the defendants and plaintiff, are ordered to be filed 
in the clerk's office of Laurens district, and the defendants have 
leave to file their suggestion to set aside the judgment of PaHUo 
Farrow v. O. O. Dial, Mary Dial, and William Henderson, on en- 
tering into a consent rule to pay to the plaintiff all costs which he 
may incur thereby, if they should fail in setting aside the said 
judgment; and the said plaintiff is ordered to plead to the said 
suggestion so to be filed. The defendants to be the actors in 
the said suggestion. 

The whole court concurred. 



JUDGMSNT ObTAIKKD BT FbA(7D OB SUBFBIBS WILL BX SST ASWEl BtllMI 

▼. Barber, 23 Am. Dec. 720. 



MuBBAY V. S. G. Railboad Gompakt. 

[1 MoHULLAV'B Law, 88S.] 
fixBVAivT CAN NOT Eecov£B OF EvPLOTSE for iojories occftsioned by tht 
negligence or misconduct of a fellow-servant. O'Neal! and Oantt, JJ., 
and Johnston, Cb., dissenting. 



Feb. 1841.] MuBRAY v. S. C. Bailboad Go 26» 

Cask. Plaintiff was engaged as a fireman on a locomotiye 
used and employed by defendants on their railroad. The inju- 
ries out of which this action arose were received by the plaint- 
iffy while engaged in the discharge of his duties as fireman, by 
reason of the engine on which he was employed being thrown 
from the tiack» in consequence of the negligent and careless 
conduct of the engineer, who had charge of the engine, and who 
refused and neglected to lessen the speed or to stop the engine^ 
after his attention had been called to the obstacle on the track 
which occasioned the accident. Yerdict for plaintiff. Defend- 
ant moved for a new trial. 

Blanding, for the motion. 

By Oonrt, Evaxs, J. In the considfination of the question in- 
volved in this case, I shall assume that the verdict establishes 
the fact that the plaintiffs injury was the effect of the n^U- 
genoe of the engineer, and then tiie question arises whether the 
railroad company is liable to one servant for an injury arising 
from the negligence of another servant. The business of the 
company is the transportation of goods and passengers. Its 
liability in these respects, is, in general, well defined and un- 
derstood by the profession; and if the plaintiffs case came 
within any of the principles applicable to these cases, we should 
have no difficulty in deciding it. The application of steam 
power to transportation on railroads, is of recent origin, but 
the principle by which the liability of a carrier is fixed and as- 
certained, is as old as the law itself. There is nothing in the 
fact, that the defendant is a corporation, except that of neces- 
sity it must act altogether by agents. The liability is precisely 
the same as if the defendant was an individual acting by the 
agency of others. The principle is the same, whether you ap- 
ply it to a railroad, a steamboat, a wagon, a stage-coach, or a 
ship. If this plaintiff is entitied to recover, I can see no reason 
why the owner of any of the above modes of conveyance, 
should not be liable under the same circumstances. If the 
owner of a wagon should employ two men, one to drive and the 
other to load, and either of them should so negligentiy perform 
his work as to injure the other, the owner of the wagon would 
be liable. The principle will extend to all the vocations of life 
wherein more than one person is employed to effect a single ob- 
ject; and a new class of liabilities would arise, which I do not 
think, has ever heretofore been supposed to exist. It is ad- 
mitted, no case like the present has been found, nor is there 
any precedent suited to the plaintiffs case, unless he stands in 



\ 



270 MuRRAT V, S. C. Railroad Co. [S. Caxolina^ 

the relation of a passenger to the company. In this point of 
view, his counsel has chosen to regard him^ for I understand 
the declaration alleges he was a passenger. Now, a passenger 
is eveiywhere spoken of, as one who pays for transportation. 
In all the operations necessary for this, he is passiye. The 
moment he becomes an operator, for then his character is 
changed, he becomes the servant of the company, and not its 
passenger. It would be a confusion of terms so to regard him. 
He is no more a passenger than a sailor or a stage-diiver. 
There is nothing in the definition of bailment, or the classifica- 
tion of the different kinds of liability growing out of that rela- 
tion, which applies to the plaintiff's case, and if he is entitied 
to recover, it most be on principles which apply equally to all 
operations of life in which agents are employed. 

There is no question that, in general, the principal is liable 
for the acts of the agent, performed in the execution of his 
agency, or in and about the business of his principal. Thus, 
the owners of a railroad would be liable to passengers for an 
injury sustained by the negligence of any of its servants, supe- 
rior or subordinate, because it is implied in the undertaking to 
carry, not only that the road and cars are good, but that the 
servants employed are competent and will perform their duty. 
For the loss of goods, the law annexes a still greater responsi- 
hUity. So, also, if one employ an agent to execute any work 
whereby an injury may result to a stranger, the law requires it to 
be done vrilth care, and if a stranger sustain an injury, his prin- 
cipal is liable, as was decided in O'Connell y. Strong, Dud. 265. 
But the plaintiff is neither a passenger nor a stranger, and if he 
can recover, it must be in his hermaphrodite character as a pas- 
senger-fireman. In the cases above enumerated, the princij^al 
is represented by the agent, and unless he be liable, the great 
operations of life can not be carried on — no man would have 
adequate security for his person or his property. The owner of 
goods would not trust them on a railroad, or a steamboat, if his 
only sectuity was the liability of the mere servants employed. 
No passenger would commit his safety to a railroad, steamboat, 
or stage-coach, if, in case of injury, he could look to none but 
the agents usually employed about these modes of transporta- 
tion. So, also, no man would have any guaranty for the secu- 
rity of his property, if his only remedy for negligence was the 
irresponsible or insolvent agents which another might employ. 
In all these, and similar cases, the reasons of the liability of the 
princijtal are clear, and the law books are full of cases or pre- 



Feb. 1841.] MuMULY v. S. C. Railroad Co. 271 

•cedeDis which apply to ihem; but it is not so with the plaintiffs 
<3a8e; there is neither authority nor precedent for it. 

It was said in the argument that if the engineer had been the 
owner of the road he would have been liable. Of this I appre- 
hend there would haye been no doubt, but then his liabiUty 
would haye arisen, not from his being the owner, but because 
the injury arose from his own act. That he is now liable seems 
to me to admit of no doubt. But it by no means follows as a 
conseqnenoe that because he is liable those who employ him are 
liable also. One acting as agent may subject himself to liability 
in a yarieiy of cases for which his principal would not be liable; 
and this may be as well in cases of contract as in cases of tort 
The extent of the liability of the principal for the acts of the 
agent can, in general, be readily ascertained from the object of 
the contract and the relatiye position of the parties. A pas- 
senger desires to be transported from one place to another; the 
carrier undertakes to do this, and is liable if he fails. It is 
wholly immaterial by whose default the injury resulted. There 
has been a bzeach of the contract, and he has a right to look to 
him with whom his contract was made. With the plaintiff the 
defendants contracted to pay hire for his services. Is it inci- 
dent to this contract that the company should guarantee him 
against the negligence of his co-servants ? It is admitted he 
takes upon himself the ordinary risks of his vocation; why not 
the extraordinaiy ones? Neither are vrithin his contract — and I 
can see no reason for adding this to the already known and 
acknowledged liability of a carrier, without a single case or 
precedent to sustain it. The engineer no more represents the 
company than the plaintiff. Each in his seyeral department 
represents his principal. The regular movement of the train of 
cars to its destination is the result of the ordinaiy performance 
by each of his seyeral duties. If the fireman neglects his part 
the engine stands still for want of steam; if the engineer neg* 
lects his, eyezything runs to riot and disaster. It seems to me, 
it is, on the part of the several agents, a joint tmdertaking, 
where each one stipulates for the performance of his several 
part. They are not liable to the company for the conduct of 
each other, nor is the company liable to one for the misconduct 
4,t another; and, as a general rule, I would say, that where 
there v^as no &ult in the owner, he would be liable only for 
wages to his servants; and so far has this doctrine been carried, 
that in the case of seamen, even v^ages are forfeited if the yessel 
be lost and no freight earned. 



272 MuBRAT V. S. C. Railroad C!o. [S. Carolina^ 

In the above obsenrationSy I have endeavoied to confine my- 
self striotlj to the case before the court. It is not intended to 
prejudge other questions, -which may arise between the company 
and its servants; nor do I mean to say, that a case may not oc- 
cur, where the owner, whether an individual or company, will 
be liable for the acts of one agent to another; but then it must 
be in such cases as where the owner employs unfit and improper 
persons as agents, by whose ignorance or folly another is in- 
jured. Upon such a case, it will be time enough to express an 
opinion when it arises. The present is not such a case. The 
engineer, according to the evidence, was competent, though he 
may have been rash in the partictdar instance in -which the 
plaintiffs injury was sustained. He -was known to the plaintiff 
as well as to the company, for it appears by the report that he 
selected the engineer under whom he was willing or prepared 
to serve. It seems to me the plaintiff is not, therefore, entitled 
to retain his verdict, and a motion for a new trial is granted. 

Bkbabdsoh, Eablb, Butlkb, Habpsb, and Duxdh, JJ. and 00.^ 
concurred. 



JomreoN, Chancellor. I concur in this opinion, and will only 
add a word in illustration of my own views of the question. 
The fotmdation of all legal liability, is the omission to do some 
act which the law commands, the commission of some act which 
the law prohibits, or the violation of some contract, by which 
the pari^ is injured. There is no law regulating the relative 
duties of the owners of a steam car, and the persons employed 
by them to conduct it. The liability, if any attaches, must 
therefore arise out of contract. What was the contract between 
these parties? The plaratifl*, in consideration that the defend- 
ants would pay him so much money, undertook to perform the 
service of fireman on the train. This is all that is expressed. 
Is there anything more implied? AHsnming that the injury 
done, was in consequence of the negligence of the engineer, the 
defendants would not be liable, unless they tmdertook to an- 
swer for his diligence and skill. Is that implied ? I think noL 
The law never implies an obligation in relation to a matter 
about which the parties are or may, with proper diligence, be 
equally informed. No one will ever be presumed to undertake 
for that which a common observer would at once know was not 
true. The common case of the warraniy of the soundness of a 
horse, notoriously blind, may be put in illustration. The war- 
ranty does not extend to the goodness of the eyes, because the 



Feb. 1841.] MUBSAY u S. C. Railboad C!o. 273 

pmchaser knew, or might haye known, with proper care, that 
thej were defectiye. 

Now, the plaintiff knew that he was not to conduct the train 
alone. He knew that he was to be placed under the control of 
the engineer. He knew that the employment in which he was 
engaged was perilous, and that its success was dependent on the 
common efforts of all the hands; and, with proper diligence and 
prudence, he might haye been as well, and it does not follow 
that he might not haye been better, informed than the defend- 
ants, about the fitness and security of all the appointments con- 
nected with the train. If he was not, it was his own want of 
prudence, for which defendants are not responsible. If he was, 
he will be presumed to haye undertaken to meet all the perils 
incident to the employment 

There is not the least analogy between this case and that of 
common carriers of goods or transporters of persons. They 
are liable in respect to the price paid. Not so here. The 
plaintiff pud nothing for his transportation; on the contniry,' 
he was to be paid for his labor, and for the perils to which he 
was exposed, as incident to his employment. No prudent man 
would engage in any perilous employment, unless seduced by 
greater wages than he could earn in a pursuit unattended by any 
im panftl danger. 

(yNBALL, J., dissenting. This case was tried by myself, and 
although, had I been on the juzy, I should haye found for the 
defendants, yet there were certainly facts in the eyidenoe, which 
might haye led another to a different conclusion; and, there- 
fore, I am not disposed to disturb the yerdict. This makes it 
necessary to consider the legal doctrine which I laid down to the 
jury. In substance, I held, that if the injury to the plaintiff 
resulted from the negligence of the engineer, then the plaintiff 
was entitled to recoyer. This doctrine, a large majority of my 
brethren think erroneous, and howeyer much deference is due to 
their opinions, yet, as I consider tham to be wrong, I think it 
my duty to state my own yiews. 

This case is one of the first arising out of the conyeyance of 
human beings by locomotiyes on railroads. It goes beyond the 
ordinary case of a passenger, and presents a claim on the part 
of a hired senrant, against his employers, for an injury sustained 
in their seryice. If it arose out of any of the old-fashioned 
modes of conyeyance, managed by the defendants themselyes, 
could there be a doubt that they would be liable, if the injury 
lesnlted from negligence? Take the case of a stage-coach, 
AM. nxo. you zxxyz— 18 



274 Murray v. S. C. Railroad Co. [S^ Carolina^ 

driven by fhe owuer, and let it be supposed that the plaintiff 
was hired as a guard, and that he was injured in that employ- 
ment, by the careless driving of the defendant, who would hesi- 
tate to say that he was entitled to recover? No one who bad a 
proper regard to legal principles. Is there any distinction in 
law as to the effect which the employment of the plaintiff is to 
have, in the different kinds of service in which he may engage? 
I think there is none. If Mr. Tupper, the able and efficient 
officer of the company, had, in person, managed the engine, and 
the plaintiff had been injured l^ his carelessness, I would most 
respectfully ask, how could it be pretended that the company 
was not liable? I admit here, once and for all, that the plaint- 
iff, like any other servant, took, as consequence of his contract, 
the usual and ordinaiy risks of his employment. What is meant 
by this? No more than that he could not claim for an injuiy, 
against which the ordinary prudence of his employers, their 
agents, or himself, could provide. Whenever negligence is 
made out as the cause of injury, it does not result from the 
ordinary risks of employment. 

How far are the defendants liable for the acts of the engineer? 
In the language used in Bacon's Abridgement, tit. Master and 
Servant, letter B, "it is highly reasonable that they should 
answer for such substitute, at least dviliJter; and that his acts, 
being pursuant to the authority given him, should be deemed 
the acts of the master.'' Now to this authority, it will not do 
to say the defendants did not authorize the engineer to run his 
engine so carelessly as to injure the plaintiff. They put him in 
command of it, and authorized him with it to run the road. If, 
in the doing of this act, which is according to their authority, 
he acts n^ligently, then they are liable for the consequences, 
for they result from the doing of their business, by one then 
employed by them. The cases of Drayton ads. Moore and 
Parker d Co. v. Oordon, Dudley, 268, and of (yConndl 
V. Strong, Id. 265, are full to this point. In ordinary cases, 
this would not be questioned. But it is supposed that this 
case is not governed by the ordinary rules applicable to cases of 
liability, arising out of the relation of master and servant. I 
am at a loss to conceive any just reason for this notion. The 
law, it seems to me, is to be regarded as a general science, ap- 
plicable to every case coming within the letter or the reason of 
the rule. Where it is within neither, it becomes an exception 
to it. It is only necessary to state this case, to see that it is 
within both the letter and reason of the rule; for the defeudanta 



Feb. 1841.] Murray v. S. C. Railroad C!o. 276 

employ fhe plaintiff to act under the command of another of 
their eerrants. In such a case, the servant in command is in 
the place of the employers. When they hire another to engage 
in a service, where neither his own care nor prudence can shield 
him from injury, which may arise from the act of another of 
their agents, having the control of him, the question of their 
liability depends upon the care used by such superior agent. 
The ordinary rule in cases of hiring goods, is, that the hirer 
should use that degree of care which a prudent man would take 
of his own goods. If this degree of care is shown, then the 
is not liable for any injury which may result to the goods 
This rule, it seems to me, must, necessarily, be that 
which applies to this case. Is more favor to be bestowed on a 
man's goods than on his person? It would be strange that this 
should be so. It may be tested, however, by inquiring if the 
plaintiff, instead of himself, had hired his negro man to the de- 
fendants as second fireman, and he had lost his 1^ by the care- 
lessness of the engineer, would not the defendants have been 
liable? It seems to me that they would, or one section of the 
law of bailments would be repealed by the court of errors. 
There can be no diffeeence in the law, as applicable to the white 
man or the slave, in a contract of hiring. Both are capable of 
self-preservation, and both are capable of wrong and right 
action; and in the capacity of firemen, both are under the orders 
of the engineer, and must look to him for safety. 

In the cases of Drayton ads. Moore^ and Parker d Co. v. 
(Jordon^ Dud. 272, it was said, '' When a master employs slaves in 
any public employment or trust, such as tradesmen, fenymen, 
wagoners, patroons of boats, or masters of vessels in the coast- 
ing or river navigation, he undertakes, not only for their skill 
and faithfulness to all who may employ them, but also, for their 
general skill and faithfulness to the whole community." This 
rule stated as to slaves, applies more forcibly to hired servants, 
and my brother Johnson, who then resisted the rule as to slaves, 
admitted it in its fullest extent as to hired servants. Taking 
this as settled law, how stood the plaintiff in his contract vdth 
the defendants in relation to the engineer? Had he not the 
right, according to law, to regard the defendants as contracting 
both for his skiUfulness and faithfulness ? It seems to me, there 
can be no doubc about it. Well, this being so, if the engineer 
was negligent, the defendant's undertaking for his faithfulness 
was broken, and they are most clearly liable. 

It is, however, urged (and that is, as I understand, the ground 



276 MuBRAY V. S. C. Railroad C!o. [S. Carolina^ 

on which the court of errors decides the case) that this case is 
one of novel impression, and not to be decided by the ordinary 
rules of the law of bailment. Conveyance by locomotives on 
railways is supposed to be more analogous to shipping than 
anything else; and hence, unless a sailor could recover for an 
injury arising from the neglect of the master, it is supposed that 
a fireman can not, for an injury arising from the neglect of the 
engineer. Before I discuss the case in this new aspect, I deny 
that any mode of conveyance on land is to be put on a footing 
with the navigation of iiie ocean in ships. That is governed by 
principles of law coeval with society, and in many respects com- 
mon to eveiy civilized nation of the earth. Conveyances on 
land are also regulated by a very ancient and well-settled law, 
wholly distinct from the other. It will, however, be sufficient 
to show by one plain view, that the law applicable to mariners 
can not affect this case. Unless a vessel earns freight, the 
mariner is entitled to no wages. Suppose a locomotive running 
from Charleston to Aiken should bum up the entire train, and 
thus earn no freight, would not all the hands hired by the de- 
fendants to manage her, be entitled to their wages? There 
oould be no more doubt that they would, than that a man hired 
to drive my wagon to Charleston, who, by some unforeseen ac- 
cident, should lose his load, would still be entitled to his wages. 
This shows that in the vexy beginning there is such a difference 
in the law of a ship and that of a locomotive, that it is impos- 
sible the law of the former can decide the right of a servant em- 
ployed in the latter, to recover for an injuzy arising from the 
neglect of the engineer. 

But if it were otherwise, and this case depended upon mari- 
time law, still I am inclined to think the plaintiff ought to re- 
cover. No exactly analogous case can be found. In Phillips on 
Insurance, 463, Judge Story is represented as saying, in the case 
of The Saratoga : " It appears to me, that upon the established 
doctrine of our law, where the freight is lost by inevitable ac- 
cident, the seamen can not recover wages, as such, from the 
ship owner." I concede that this dictum is the true law regu- 
lating a mariner's right to wages. If the freight was lost by 
the master's neglect, it could not then be ascribed to inevitable 
accident; and then, I think, the seaman would be entitled to 
recover. If this is true in relation to wages, the same rule 
must hold as to the mariner's right to recover for any injuzy 
arising from the n^Ugence of the master. 
Bhit it is said, it would be impoUtio to make the defendants 



Feb. 1841.] MuBRAY u S. 0. Railroad Co. 277 

liable for any injiuy accruing to a fireman, from the neglect of 
the engineer. This would be worth inquiring into with great 
care in the legislature; but, in a court, I think we hare nothing 
to do with the policy of a case; the law of it is our guide. But 
if we are to look to the policy, then I should argue that the 
more liability imposed on the railroad company, the more care 
and pradence would be thereby elicited. This result is what 
the oonixnunity desires. For it secures life and property com- 
mitted to their care. 

I think the motion ought to be dismissed. 

Gautt, J., concurred. 

J. JoHRSTOH, Chancellor, also dissenting. It may not diminish 
tbe foroe of the observations made by Mr. Justice CNeall, if I 
state very briefly the reasons which induce me to concur in his 
dissent. It is admitted that the duties and liabilities between 
masters and hired servants, result only from the nature and 
terms of the contract which forms the relation; and that neither 
party is allowed to extend or abridge the contract. That the 
master can not exact other services than those stipulated for; 
nor, by any indirection, subject the servant to any other than 
the ordinary perils incident to the employment; and that if h^ 
does by any agency whatever, or by any means, whether of de- 
sign or negligence, accumulate upon the servant, while in the 
performance of his duty, any dangers beyond those inherent in 
the service itself, they &11 upon the latter, not as a servant (for 
his contract does not bind him to endure them), but as a Ihan, 
and the law entities him to redress. 

It is also admitted that these principles are not confined to 
cases where one servant only is employed, but prevail when a 
plurality are at the same time engaged by the same master. 
Their application, however, in cases of the latter description, 
depends upon the terms of the contract. If several jointiy 
contract to perform a specified duty, the master is not liable to 
either of them for injuries resulting from the faithlessness or 
negligence of his coadjutor; all of them being, substantially, 
agents for each other, to perform their joint undertaking. But 
when their engagements are several, eadi undertaking for him- 
self, to perform distinct offices, in a matter susceptible of a 
division of labor, each stands to the master in the same rela- 
tion, and is entitied to the same rights, as if he was the only 
servant employed. The master is responsible to him, as he 
would be to a stranger, for the misconduct of the others, who 



278 MuBEAY V. S. C. Railroad Co. [S. Caroliiu^ 

axe ezdusiTely his, the master'B, agents. Now, this is ad- 
mitted to be the general law upon the subject; and it is ap- 
plicable to the servants of a railroad company, as well as to 
those of any other employer, unless there be something to take 
them out of its operation. No instance of master and servant 
has been pointed out where these principles do not obtain, ex- 
cept the case of a ship's crew; but that stands clearly upon spe- 
cial grounds of usage. If the servants employed about a raQ- 
road, axe excepted out of the general rules rdating to agency, 
th# exception, with the grounds and reasons of it, must be 
shown, otherwise the employers will be as liable to any one en- 
gaged in their service, for injuries inflicted on him by other 
agents, in the course of their employment, as a planter would 
be to a hired hand for maltreatment by his overseer. 

I presume no one will contend that the rule applicable to 
service in a railroad company is, that the company is not liable 
to any agent, for any injury, provided the company can only 
show that another of its agents has inflicted it. Would it do to 
say, for example— and upon what principle could it be said — 
that a superintendent of the hands engaged in repairing the 
road, may, with impunity to the company, abuse his authority 
to the injury of their heiilth? Or, if the cars were to be run at 
night, and, through the neglect of hands set apart to watch the 
road, and remove obstructions, the whole train were lost, and 
any officer or hand on board were crippled, certainly no one 
means to assert that none of these could claim compensation 
from the company, but must look exdusiyely to the irresponsi- 
ble agents (perhaps slayes), hired by the company, through 
whom the injury accrued. And yet, how is a rule to be laid 
down — ^I wish to hear the rule stated — ^which would include that 
case and exclude this? The fidelity of the hands detailed to 
superintend the road, in the case I have supposed, would be as 
essential to the common enterprise of running the cars, as the 
fidelity of the hands on board to their respectiye duties. If the 
idea is indulged, that there is, in any branch of this enterprise^ 
an implied undertaking among the servants to do the work 
jointly, and to vraive the neglect of each other, what will consti- 
tute such an understanding? Where are its limits? Does it 
arise from the intimate connection of the hands ? Then, I vrish 
to be informed what degree of intimacy, what strength of asso- 
ciation, is demanded, to raise the implication? Where is the 
line? 

I giye no opinion upon the evidence. I take the verdict for 



Feb. 1841.] MuBRAT v. S. C. Rulboab Co. 279 

the fiicts; and, according to the finding of the jtuy, ihe plaintiff 
faithfully performed his particular duty, and, while performing 
it, was injured by the faithlessness or negligence with which 
the company, acting in the person of another agent, executed a 
duly incumbent upon them. Ought the plaintiff's remedy to be 
doubtful? 

The elements of the contract between him and the defend- 
ants, are these: on their part, so far as they were to contribute 
to the propelling of the cars, that they would cany him safely; 
and, on his part, that on the trip he would perform certain 
offices. With respect to the last, he was their servant; with re- 
gard to the first, he was their passenger; and as their passenger 
they haye crippled him. The distinction is plain, and the pro- 
priety of applying it would be as plain, if instead of being sta- 
tioned where he was, he had only been a clerk, hired by the 
company, to trayel up and down in the cars, and take a minute 
of their operations. Yet, on principle, no discrimination can 
be drawn against him on account of his being a fireman, and 
not trayeling derk; because he had as little connection with, or 
control over, the department from which his injury sprang, or 
the agent to whom it was exdusiyely committed by the defend- 
ants, as if he had been assigned any imaginable duty in the re- 
motest part of the train. 

EmFLOTKB's LiABIUTT to SlByAHT BOB InJUBIBB to THB hATTtR RbSULT- 

vxQ 7BOM Nbouoknob OB MisooNDUOT ov Fellow-sebvant.— At the present 
day no general principle of law is more firmly established than that a master 
or employer is not responsible to those engaged in his employment, for in- 
juries snffered by them as the resnlt of the negligence, carelessness, or mis« 
conduct of other serrants of the same employer, engaged in the same common 
or general senrioe or employment, unless the employer himself has been at 
fault: Farwell t. BoBton cuid Worcester B, B. Co.^ 4 Mete. 49; Brown v. MaX' 
tnsS, 6 Hill, 592; Coon v. Syraetue and UticaB. B. Co., 1 Seld. 492; Bunell ▼. 
H^idmm B. B. Co,, 17 N. Y. 134; Boldt v. N, F, C. B, B. Co., 18 Id. 432; 
I/ayes ▼. Western B. B, Co., 3 Cash. 270; Hutchinson v. Torh N. AB. B*f Co., 
5 Exch. 343; Wright ▼. N. Y. C. B. B. Co., 25 K. Y. 562; FBudkner v. Erie B. 
Co., 49 Barb. 324; Alabama and FltL B. B. Co. ▼. Waller, 48 Ala. 459; CarU 
▼. Bamjor and Piscalaquis C. A B. R. Co., 43 Me. 269; BartonskUl Coal Co. ▼. 
Beid, 3 Maoq. 266; Bartanshill Coal Co. v. McOuirt, Id. 300; Chicago and Alton 
B. B. Co. V. Mwrphy, 53 HI. 336; S. C. , 5 Am. Rep. 48; Hosimer v. lU. Cent. B. B, 
Co., 15 Id. 550; Moedey v. Chamberlain, 18 Wise. 700; ZeigUr v. Day, 123 
Mass. 152; Wood v. Neto Bedford Coal Co., 121 Id. 252; KeiUey t. Belcher 8. 
M. Co., 3 Sawyer, 500; Hogan v. C. P. B. B., 49 Cal. 128; Sullivan v. Missis- 
sippi and Mo. B. B. Co., 11 Iowa, 421; TreadweU ▼. Mayor, 1 Daly, 123; Mc- 
DermoU v. Paei/lc B. R. Co.,90 Mo. 1 15; Madison and Indianapolis R. R. Co. v. 
Bacon, 6 Ind. 205; Hard v. Vermani and Canada B. B. Co., 32 Vt. 473; Pon- 
ton y. B. B. Co., 6 Jones, 245; Moss v. Johnson, 22 HI. 633; Wigget v. /bar,. 
M Sng. L. and £q. 486; Byan v. CumberUmd VaUey B. B. Co., 23 Pa. St. 384; 



280 MuBBAY V. S. C. Railroad Ck>. [S. Carolina, 

Whaalan t. Mad Rwer and L. B. R. R, Co,y 8 Ohio St 249; W<mdwr v. Bal- 
timore and Ohio R, R. Co., 32 Md. 411; S. C, 3 Am. Bep. 143; Oibnon v. 
Pacific R. R. Co., 46 Mo. 163; S. O., 2 Am. Bep. 497; Cooper t. MUwaukee d 
P, R. W. Co,, 23 Wis. 668; Fax ▼. Sandford, 4 Sneed, 36; McMahon ▼. Da- 
tndson, 12 Mhm. 357; Searle t. Lindaaif, 11 C B. (N. S.) 429; Thajfer v. Sl 
Louis, Alton, and T. R. B. Co., 22 Ind. 26; Teomana ▼. Contra CottaS. N. Co., 
44 CaL 71; Jones t. Orcunte MUls, 126 Masa. 84; Mwrphy ▼. Boston and At- 
hanff B. B Co., 59 How. Pr. 197; PeUnon t. WhUdfreast JC. A M. Co., 50 
Iowa, 673; S. (X, 32 Am. Bap. 143; Poits ▼. PoH CarUsU D. S B. W. Co., 2 
L. T. (N. S.) 283; amiitk t. LoweU Mfg. Co., 124 Mass. 114; McDonald t. 
iTaeeMM, 53 Gal. 35; Mkihigam Cent. B. B. Co. v. Dolan, 32 Mich. 510. 

Thb OBZODf or THE BuLB abovo stated, which has since become so firmly 
interwoven with the fabric of the common Uhw, wherever that system pre- 
vails, is attribataUe, so far as onr researches have enabled ns to discover its 
■oorce, to the opinion delivered by Judge Evans in the principal case. It was 
followed soon after in Maasaohusetts, in the case of Farwdl v. Boston and 
Worceder B. B. Co., 4 Mete 49, in which the opinion of the court was pro- 
noimoed by Shaw, C. J.; and so ably were the principles of reason and of 
law applicable to the case, stated, enlarged upon, reasoned, and explained, 
that the opiniGn in that case has since been declared to be one of the most 
profomid and masterly that ever emanated from the pen of that distmgaished 
Jorist. It has commanded the admiration and elicited the encomioms of 
judges and text-writers alike, and has been cited and approved by the courts 
of justice of two continents. The learning, ability, and reputation of Chief 
Justice Shaw, and the surpassing strength and force of his deductions in that 
case, together with the circumstance that it was a very ea^ly one involving 
this principle, have rather overshadowed the opinion of Judge Evans in 
Murray v. 8. C. R. R. Co., and the Massachusetts case, though of later date, 
has attained the dignity of a leading case upon this subject^ and has, by some 
writers, been regarded, although erroneously, as being the first case in which 
the doctrine was declared. The marvelous progress which has since given 
rise to the use of mechanical appliances which render the employment of per- 
sons engaged in their management more hazardous, the increeaed use of 
machinery in manufacturing and other enterprises, and particularly the perils 
and dangers which attend the operation of railroads by servants engaged tiiere- 
upon, have contributed to render this principle a most important and useful 
one, which courts are very frequently called upon to adopt in cases where re- 
lief is asked. It is proper to refer, also, in tracing the history of this princi- 
ple, to the judgment of Lord Abinger, delivered in 1837, in Prieatlp v. FbwUr, 
8 Mee. it W. 1, in which it was held that a servant could not recover of his 
master for injuries caused by the breaking down of a van, driven by a co- 
servant, upon which the former was riding, and which had been overloaded, 
with defendant's knowledge, the servants being then engaged in delivering 
defendant's goods. 

The Bsason or the Bulb can not be better stated than by referring to 
the opinion delivered by Shaw, C. J., in the case above mentioned: Ibrwell 
V. Boston and Worcester R. R., supra. ** The general rule,'* said the learned 
chief justice, " resulting from consideratians as well of justice as of policy, 
is, that he who engages in the employment of another for the performance of 
specified duties and services, for compensation, takes upon himself the natural 
sad ordinary risks and perils incident to the performance of such services, and 
in legal presumption the compensation is adjusted accordingly. And we are 
not aware of any principle which should except the perils arising from the 



Feb. 1841.] MuBBAT v. S. C. Railroad Ck>. 281 

4sareleasne8s and negligence of those who are in the same employment, 'fheee 
Are perils which the serrant is as likely to know, and against which he can 
■as effectoaily guard, as the master. They are perils incident to the service, 
And which can be as distinctly foreseen and proTided for in the rate of com- 
^lensation as any others. To say that the master shall be responsible because 
the damage is caused by his agents, is assuming the very point which remains 
to be proved. They are his agents to some extent and for some purposes, but 
whether he is responsible, in a particular case, for their negligence, is not de* 
•cided by the single fact that they are, for some purposes, his agents. In con- 
«idering the rights and obligations arising out of particular relations, it is 
com]>etent for courts of justice to regard considerations of policy aud general 
convenience, and to draw from them such rules as will, in their practical ap- 
plication, best promote the safety and security of all parties concerned. We 
are of opinion that there ace such considerations which apply strongly to the 
3ase under discussion. Where several persons are employed in the conduct of 
•one comnion enterprise or undertaking, and the safety of each depends to a 
great extent on the care and skill with which each other shall perform his ap- 
propriate duty, each is an observer of the conduct of the others, can give 
notice of any misconduct, incapacity, or neglect of duty, and leave the ser- 
vice, if the common employer will not take such precautions, and employ 
such agents, as the safety of the whole party may require. By these means, 
the safety of each will be much more effectually secured, than could be done 
by a resort to the common employer for indemnity in case of loss by the 
negligence of each other. Regarding it in this light, it is the ordinary case 
of one sustaining an injury in the course of his employment, in which he 
must bear the loss himself, or seek his remedy, if he have any, against the 
actual wrong-doer." This case arose out of injuries received by an engineer, 
while running a train of cars, in consequence of the carelessness of another 
servant of the company in the management of a switch. 

Ths Ssbtant is Pbbsumed to bb Acquainted with the Risks, Perils, 
Ain> Hazards of the Business which he undertakes to perform, and among 
them such risks as are incident to the negligent, careless, or wrongful acts of 
other servants, engaged with him, in the same general employment. In a 
very recent English case this principle was stated as follows: " When a serv- 
ant enters into the service of a master, he tacitly agrees to take upon himself to 
bear all the ordinary risks which are incident to his employment, and among 
withers the possibility of injury liappening to him from the negligent acts of 
his fellow-workmen:" Lovdl v. Hov?eU, 1 L. R., C. P. Div. 1G7. So a 
brakeman upon a railroad, whose duty it is not to apply the brakes except when 
directed by the engineer or conductor, can not maintain an action against 
their common employer for an injury resulting from the culpable rate of speed 
At which the engineer and conductor ran the train: Sherman v. Rochester and 
SyracwK Jl, R, Co.^ 17 N. Y. 154; nor is a railroad company liable to an em- 
ployee for an injury occasioned by the falling of a bridge, the company having 
no notice of the defect, which was not an apparent one, and having employed 
skillful and competent persons to supervise and inspect its road-bed and 
bridges: Warner v. Erie R, Co,, 39 N. Y. 468; MoDermoU v. Pac\fic R. 
R. Co., 30 Mo. 115; nor for injuries resulting from the difference in time kept 
by A person in their employ and a conductor of a train, in consequence of 
which, workmen engaged in repairing the road, were told by a foreman that 
they had sufficient time to reach a certain point on the road on a hand-CAr be- 
fore An expected train could overtake them, an<l, the foreman's watch being 
slower thtti the conductor's, the train struck the car and killed the servanti 



282 MUBRAT u S. C. Railboad Co [S. Carolina^ 

Wegery, Petmaylvania R, R, Co., 55 Pa. St. 400; and where an injury iri» 
cauaed to a bnkeman by tlio negligenoe of his fellow-servant, and the injory 
would not have happened if the latter had performed his duty, it is immate 
rial that the train was short of hands: Hayea v. WtstelPa R, R, Ca, 3 Gush. 
270. So an actor can not recover for injuries caused by a fall through an un- 
guarded opening in the stage which was insufficiently lighted: Se^fmaur t. 
Maddux, 5 Eng. L. and Eq. 265; the fact that the injured servant was a minor 
does not a£fect his legal rights: King v. Boston and Woreesier R, R, Cb., 1^ 
Gush. 112; R, R. Co, v. MUler, 51 Tex. 270; Gariland v. ToUdo etc, R, R„ 
67 111. 498. It is a question of fact in such a case, which is proper to be con- 
sidered by a jury, whether at his age he had sufficient understanding to know 
the hazards of his employment, so as to bring him within the general rule: 
Hoyden v. SmitfiviUe iifg, Co,, 29 Conn. 548. The doctrine that an action 
will not lie by a servant against his principal for an injuiy sustained thxx>ugh 
the default of a fellow-servant, applies to those cases only where the injuries 
complained of occur without fault of the principal, either in the act which 
caused the injury, or the employment of the servant who caused iL Thus, an 
employee of a railroad company is not bound to know whether the road has 
been properly and safely constructed; that it has been, is the implied under- 
taking of the company with its servants, and they enter its service in that 
faith and that it will be kept in safe repair: Chicago ^ N, W, R. R, Co. v. 
8weU, 45 HI. 197; Porter v. Hannibal and SL Jo R, R. Co., 60 Mo. 160. In all 
cases of this character the important inquiry must be, whether the negligence 
complained of may, in any manner, be attributed to the employer. If the 
negligence was the personal default or omission of the servant alone, by whose 
act the injury was caused, no dereliction can be imputed to the master, and 
the latter will not be liable; if, however, he has himself been at fault, in em- 
ploying a servant who was notoriously careless, unskillful, or inoompetent to 
perform, in a proper manner, the duties intrusted to him, the principle would 
be otherwiM, for the rule was never intended to shield him from the conse- 
quences of his individual negligence. 

Thb Gankral Rule in Respbct to thk Right of a Servant to Rb- 
ooTBR OF HIS MASTER for injuries occasioned by the negligence of his co- 
employee, is thus formulated by Mr. Gooley: "The master is not responsible 
to one person in his employ for an injury occasioned by the negligenoe of an- 
other in the same service, unless generally, or in respect to the particular 
duty then resting upon the negligent employee, the latter so far occupied the 
position of his principal, as to render the principal chargeable for his negli- 
gence as for personal fault:" Gooley on Torts, 564. "The only ground,** said 
the court in Warner v. Erie R. Co., 39 N. Y. 468, "of liability of a mas- 
ter to an employee, for injuries resulting from the carelessness of a co-em- 
ployee, which the law recognizes, is that which arises from personal negli- 
gence, or from want of proper care and prudence in the management of his 
affihirs, or the selection of hiM agents, or machinery, and appliances." And 
again, it was held in an action by a servant against his master to recover for 
injuries resulting from the negligence of a co-employee, that the sole ques- 
tion was whether the defendant was guilty of negligence in employing an in- 
competent person; it was unnecessary to inquire whether the fellow -sert-ant 
was negligent: Haakin v. N. Y. C. R. R. Co., 65 Barb. 129. The authorities 
all state the rule with the qualification before referred to, that the injury 
must be attributable in some manner to the want of ordinary care on the 
part of the master in order to sustain a recovery against him. If the ground 
of the action is the unskillfulness of the servant^ it must be shown in addi- 



Feb. 1841.] MuitiiAx v, ;j. G. Railroad Co. 283 

tiou, that the injuries complained of were the result of such unskiUfnlness. 
The principles upon which the master's exemption from liability is founded, 
are forcibly sad suodnotly stated by Allen, J., in Wright v. .N, T, O. R. JR. 
dx, 25 K. Y. 562. This was an action by a brakeman» employed on one of 
defendant's trains, for damages resulting from a collision with another train 
of the same company, alleged to have been due to the negligence of defend- 
ant in emplojring an incompetent engineer. The evidence showed that the 
engineer complained of was ordinarily competent, and it was therefore held, 
that the defendant not having been negligent in the matter of his employ- 
ment, there could be no recovery, because the plaintiff had voluntarily as- 
sumed the risks of his employment, and must therefore bear the loss conse- 
quent upon them. The court in that case said: 

" Certain principles touching the liability of the master to the servant, for 
injuries sustained by the latter in the course of his employment, have, by the 
decisions in this state and several of the sister states, as well as in England, 
become so well settled that they need only to be stated. 1. A master is not re- 
sponsible to those in hia employ for injuries resulting from the negligence, 
carelessness, or misconduct of a fellow-servant engaged in the same general 
bnsineas. 2. The rule exempting the master is the same, althou^ the grades 
of servants or employees are different^ and the person injured is inferior in 
rank and subject to the directioDS and general control of him by whose act 
the injury is caused. 8. Neither is it necessary, in order to bring a case 
within the general rule of exemption, that the servants, the one that suffers 
and the one that causes the injury, should be at the time engaged in the same 
operation or particular work. It is enough that they are in the employment 
of the same master, engaged in the same common enterprise, both employed to 
perform duties and services tending to aoompUsh the same general purpose, as 
in maintaining and operating a railroad, operating a factory, working a mine, 
or erecting a building. 4. The master ia liable to his servant for any injury 
happening to him from the misconduct or personal negligence of the master, 
and this negligence may consist in the employment of unfit and incompetent 
servants and agents, or in furnishing for the work to be done, or for the use of 
the servant, machinery or other implements and facilities improper and unaafe 
for the purposes to which they are to be applied. The employer does not under- 
take with each or any of his employees for the skilland competency of the other 
employeesengaged inand about thesameservice, or for the sufficiency and safety 
of the materials and implements furnished for the work, or for the convenience 
or comfort of the laborer, since neglect and want of due care in the selection 
and employment of the agent or servant through whose want of skill or com- 
petency an injury is caused to a fellow-servant, must be shoMm in order to 
charge the master: and if the injury arises from a defect or insufficiency in the 
machinery or implements f umiBhed to the servant by the master, knowledge of 
the defect or insufficiency must be brought home to the master, or proof given 
that he was ignorant of the same, through his own negligence and want of 
proper care; in other words, it must be shown, that he either knew or ought to 
have known the defects which caused the injury. Personal negligence is the gist 
of the action. It is not enough that the foreman and general superintendent 
of the work is guilty of negligence, causing injury to the subordinates. 5. If 
the servant sustaining an injury through the unskillfulness or insufficiency in 
numbers or otherwise of his fellow-laborers, or defects in the machinery or 
conveniences famished by his employer, has the same knowledge or means of 
knowledge of the unskillfulness and deficieucies referred to, as his employer, 
he can not sustain an action for the injury, but will be held to have voluntarily 
■asniped all the risks of the employment, incurred, as they were, by the want 



284 MuBBAY V. S. C. Railroad Co. [S. Caroling 

<A skiU and incompetency of those employed with him. or the defective ma- 
«hinery need in the work. 6. It is not soffident to charge the master for inja- 
riei to his servant, that others of his employees were unskillf ol or inoompetent^ 
or the machinery unsafe and onfit for the pnxpoees, nnless the injury oom- 
plained of resulted from these causes. If it was occasioned, notwithstanding 
•uch defects, by the negligence of a fellow-servant, the master is not respon- 
aible." 

l>XOBXB or OaSB WHZOB' MaSTIR IB BOUIID TO EXEBdSB.— The gist of 
an action against a master by his servant to recover for injuries caused by the 
negligence, or, as it would be more proper to say, incompetence of a fellow- 
setfvsnt, being the personal negligence of the master, it becomes importsat to 
Inquire what the particular duty of the master toward his servant in xelatiaa 
to the employment of other servants engaged in the same business is, and 
what degree of care and diligence in that respect the master is required to 
exercise. In order to exempt himself from liability to a servant for the con- 
sequences of a f ellow*servant*s negligent or careless act, the master is required 
to use ordinary diligence only in the employment of servants, and no more. 
If he has exerdsed due care in the selection of his servants, and on account 
of the carelessness of the latter an injury is caused to another in the same 
employment, the master is not liable. The obligation of the master does 
not extend beyond the use of ordinary care and diligence: King v. Boaton and 
WcreeaUr R. R. Co., 9 Cuah. 112; GaldweUv. Brown, 63 Pa. St 453; Ponion 
▼. R. R. Co,, 6 Jones, 245; ManvilU v. Clepdamd cmd Toledo R. R, Co,, 11 
Ohio St. 417; WiggtU v. Fox, 36 Eng. L. and Eq. 486; and the master is bound 
to exerdse ordinary care and prudence that those in his employ are not ex- 
poeed to unnecessary hazards or unreasonable risks and dangers: Noyt» v. 
SmiUh, 28 Vt. 64; ConnoUy v. PoiUon, 41 Barb. 366. So, where a servant is 
engaged in a business only ordinarily hasardous, and is commanded by an- 
other servant to whom the former ia subotdinate and whose direction he is 
compelled to obey, to perform a duty in the same general service, but difler- 
«nt from the sphere of employment in which he had engaged to serve, and 
which is extrahazardous in its character, and in respect to which the servant 
making the requirement knew he was inexperienced and unskilled, and in 
doing the work, the servant so directed receives injuries through the negli- 
gence of a fellow-servant employed in the particular line of service which he 
is then engaged in performing, the employer is liable; as, where a servant 
whoee employment was to load cars, was directed by a superintendent to 
make a coupling of cars in a train, which was outside of his general employ- 
ment: Lalor V. C. B, S Q. R. R,, 52 Dl. 401; R. R. Co. v. FoH, 17 Wall. 
553. The master does not wairant or guarantee the fitness or competency of 
his servants: O, O. A L C. R, W. Co. v. Troegeh, 68 111. 545; S. C, 18 Am. 
Bep. 578; Tarrant v. Wdfb, 18 C. B. 797; Ormond v. Holland, EL B. A; EL 
102; Indianapolis and Cincinnali R, R. Co. v. Love, 10 Ind. 554; Faulkner v. Erie 
R. Co., 49 Barb. 324; Beaulieuv. Portland Co.,4SUe.29l; Mossy. Pacific R.R. 
Co., 49 Mo. 167; S. C, 8 Am. Kep. 126. But to render him liable to a servant 
for negligence of an incompetent fellow-servant, the master need not have 
had actual knowledge of such incompetency: Byron v. N. T. State Printing 
Tel. Co., 26 Barb. 39; BHckner v. N. T. C. R. R. Co., 2 Lans. 506. It is 
sufficient that he would have acquired the knowledge if he had exercised rea* 
aonable care and diligence: Noyes v. Smith, supra; Harper v. Indianapolis 
df St. L. R. R. Co., 47 Mo. 567; S. 0., 4 Am. Rop. 353. 

An important element which has manifested itself in some of the cases 
growing out of the relation of master and servant, is that which relates to 
the obligation of the former in regard to servants who were originally com* 



Feb. 1841.] Murray u S. C. Railroad Co. 285 

petent and skillful when employed, but have subeequently become otherwise, 
from habits of intemperance, or habitoal carelessness or recklessness. It will 
be the duty of the master to dismiss from his service any servant, who from 
the caases mentioned, or others of that character, becomes careless or incom* 
petent, at the risk of being liable for the consequences of such servant's neg- 
ligence to fellow-servants, if he does not do so: O, G, ds /. C, R, Co. v. 
Troeach, aupra; Zoning v. N. T. C. B. R, Co., 49 N. Y. 521; S. C, 10 Am. 
Rep. 417. In Chapman v. Erie R. R. Co., 65 N. Y. 579, which was an ac- 
tion by the administratrix of an engineer to recover for injuries received by 
the latter in a collision, due to the intoxicated condition of a telegraph 
operator, whose duty in defendant's employ was that of train-dispatcher, 
this subject was reviewed. The lower court charged the jury, "that if 
after a competent person is employed for a duty, his habits become such that 
it is unsafe to trust him any longer in that capacity, the company are bound 
to use, through their proper officers, such reasonable care and diligence in 
ascertaining what the man is, after he is employed, as they would be in hia 
original employment." Reversing a judgment for the plaintiff, the court, 
per Ghuich, G. J., said, in relation to the foregoing instruction: " We think 
this mle of diligence is too broad, and can not be sustained. The general 
rule is, that notice or knowledge of incompetency is necessary to charge the 
principal with the duty of acting. In employing subordinates, the principal 
must exercise great care, and is required to institute affirmative inquiries to 
sscertain their character and qualifications, and negligence in this respect 
will create a liability: but after suitable persons have been employed, there 
is not the same reason for exacting such a high degree of diligence. Good 
character and qualifications once possessed are presumed to continue, and 
there is no reason why a principal may not rely upon that presumption as to 
theee personal qualities until he has notice of a change, or knowledge of such 
iBie\A as would be deemed equivalent to notice, or at least such as would put 
a reasonable man upon inquiry. The charge permitted the jury without re- 
striction or limit to determine what particular supervision or watchfulnesa 
was necessary to exonerate the defendant from the charge of negUgenoe. 
They might require periodical investigations, or an efficient detective system. 
They were at liberty to adopt any rule, and might adopt one which would 
practically make the defendant a guarantor of the correctness of every act ol 
its employees. We have been referred to no authority for such a doctrine, 
and it would be manifestiy unjust to adopt it. If competent when employed, 
additional experience would naturally render an employee more so, and while 
his habits might change for the worse, there is no such depravity in human 
nature as in law requires special vigilance on the part of the employer to pre- 
vent it.** Where tl^e employee is so grossly and notoriously unfit for the 
serx-ice that not to know his unfitness is negligence, the law wUl presume 
notice to the employer: C. R. I. ds P. R. R. v. DoyU, 18 Kan. 58. 

Servant mat Rxoovek fob Pebsonal Neougencb or Master by 
which incompetent or inefficient persons have been employed in the common 
service, and if such personal remiBsnees of the master be properly made out, 
under the rule previously stated, a recovery will not be defeated because the 
negligence of a fellow-servant was the immediate origin of the injury. Per- 
sonal negligence is the criterion by which the liability of the master is to be 
determined. If he has negligentiy employed a careless or incompetent fel* 
low-servant, the latter's carelessness or incapacity may be aptly said to be 
that of the master himself. He stands in the place of, and represents the 
master, becanse the latter has negligently or knowing admitted him to a ser* 



286 MuHEAT V, S. C. Bailboab Co. [S. Oarolina^ 

▼ice for whiofi he was either unfit or incompetent. So, a railroad company 
Is liaUe for injories sostained by a brakeman, as the result of the culpable 
rate of speed at which the engineer of a locomotive ran the train upon a de- 
scending grade; it being shown that the engineer was known to the corpora- 
tiou to be a careless and reckless person, inclined to fast ranning and inatten- 
tive to the rate of speed prescribed by the regalations of the corporation: 
nUnoia OeiUral S, R. Co. r. Jewea, 46 111. 101. In Harper v. IndmapoU$ 
tie, R. R, Ob., stipra, the rule was stated to be that a servant who has been in- 
jured by the negligence, misfeasance, or misconduct of a fellow-eervaat, can 
maintain an action therefor against the master, where the servant by whoee 
negligence or misconduct the injury was occasioned, was not possessed of or- 
dinary skill or capacity in the business intrusted to him, and the employment 
of such incompetent servant was attributable to the want of ordinary care on 
the part of the mflster. The principle was applied in that case to charge a 
railroad company with liability for injuries to a conductor, through negli- 
gence of an engineer in permitting a fireman to take charge of the engine, 
when incompetent for duty. 

So, it has been stated, that if the negligence of the co-employee be in re- 
spect to some act or duty which the employer himself, as master or principal, 
ii required to periorm, he will be liable. Accordiogly, where a servant, 
whose duty it was to make up and diqpatch trains and to hire and station 
brakemen, sent out a heavy frdght train with but two brakeman, when three 
were required, and the train broke in two, and in consequence of the want of 
the necessary brakemen the rear part ran backward and collided with another 
train which was following the first, killing the fireman thereof, the corpora- 
tion was held liable: InKife v. BoeUm and Albany R. R. Co., 63 K. Y. 640; S. 
C, 18 Am. Bep. 646; in like manner, where an empbyee whoee duty it was to 
employ men for a particular department of the service, employed a foreman 
who afterwards became addicted to habits of intoxication, this fact being 
known to the agent, it was held that the principal was liable for the act of 
the foreman, who, while intoxicated, directed persons to erect a scaffold, who 
were incompetent and unskillful, as a consequence of which it was so defect- 
ively constructed that it fell while plaintiff was working thereon and injured 
him: Latdng v. N. T. C. R. R., 49 N. Y. 621; & C, 13 Am. Bep. 645. 
The oases are not numerous in which the master has been held liaUe for in- 
juries received by a servant in his employ, and which were caused by the neg- 
ligence of a fellow-servantb However, if negligence may be imputed to the 
master, he will no doubt be made to respond in damages, although the negli- 
gence which immediately produced the injury may have been that of a fellow- 
servant: ^roCAsrs v. CbrMer,62Mo. 372; S. C.,14 Am.Bep.424;/aMOMCbl- 
lnl/ R. R. Co. V. WOehy 62 111. 183; Cesser v. Taylor, 10 Gray, 274; Keegan 
V. WeaUm R. R. Co., 8 K. Y. 176; Elake v. Makne C. R. R. Co., 70 Me. 00; 
8. C, 36 Am. Hep. 297; Tymm v. N. A 8. Ala. R. R. Co., 61 Ala. 654; 
8. C, 82 Am. Bep. 8; Ccne v. D. L. A W. R. R. Co., 16 Hun, 172; Me- 
Mahon v. DoMaon^ 12 Minn. 367; Railway Co. v. Jhmkam, 49 Tex. 181; 
Hardy v. CktroUna CerUral R'y Co., 76 K. C. 6; C. A N. W. R. R. Co. v. 
Jaekaon, 65 IlL 492; Paulmier v. Erie R. R. Co., 84 N. J. L. 161. It is not 
sufficient to charge the master with negligence that a prior act of careleasness 
had been charged against the servant: Bandec v. N. Y. Jt H. R. R. Co., 59 N. 
Y. 366; S. C, 17 Am. Bep. 326. It has been held that from the extraordi- 
nary or gross negligence of a co-employee the master is not exjoneimted: Lomm* 
ondNoMMUeR. R. Co. v. /St&em, 6 Bush, 674. 

CoMTRiBUTOBT KiouasvoB ov SiBTAiiT either in relntion to the particular 



Feb. 1841.] MxTfiRAY u S. C. Railboad Co. 287 

ftct by which the injury was oftosed, or generally, in continuing in the em- 
ployment after knowledge of the incompetency of a fellow-servant, will de* 
feat his right to recover: DavU ▼. Detroit and MQwoMhee JR. B, Co., 20 Mich. 
105; 8. C, 4 Am. Bep. 364; Mad River and Lake Erie JR. R. Co. ▼. Berber, 5 
Ohio St. 641; Indianapolie etc. R. R. Co. v. Love, 10 Ind. 554; Skipp v. JSkut- 
€m CotaUiee R'y Co., 9 {hcch. 223; Wright y. N. T. O. R. R., 25 N. T. 566; 
I^ratier ▼. Pa. R. R. Co., 38 Pa. St. 104; Kroy ▼. C. R. I. <C« P. R. R., 32 
Iowa, 357; Dillon v. U. P. R. R., 3 Dill. 319; Wiggins Parry Co. y. Blahe- 
man, 54 HI. 201; Railroad Co. t. Knittal, 33 Ohio St 468; Shagmy v. Andros- 
coggin MUU, 66 Me. 420. But if the master has promised to amend the de- 
fect, or held out other like inducement, as that he will discharge an incom- 
petent fellow-servant, he is not exonerated from liability by the mere fact 
that the servant who is injured remained in the employment with knowledge 
of such defect or incompetency: Laning v. N, T. C. R. R., 49 K. Y. 521; 8. 
C, 10 Am. Bep. 417; Clarke v. ffolmee, 7 H. A; N. 937. 

• 

FxLLOW-SKBVAHTS, Who ABB. — Some diversity of authority ezists in re- 
gard to the question who are to be deemed fellow-servants within the mean- 
ing of the rule. Lord Cranworth, in the renowned case of BarUmshiU Coal 
Co. V. RM, 3 Maoq. 295, defined the relation as follows: "To constitute 
fellow-laborers within the meaning of the doctrine which protects the master 
from responsibility for injuries sustained by one servant through the wrong- 
ful act or carelessness of another, it is not necessary that the servant <<«>"""g 
and the servant sustaining the injury shall both be engaged in precisely the 
same or even similar acts. Thus, the driver and guard of a stage-coach, the 
steersman and rowers of a boat, the man who draws the red-hot iron from 
the forge and those who hammer it into shape, the engineer and switch-man, 
the man who lets the miners down into and who afterwards brings them up 
from the mine, and the miners themselves, all these are fellow-servants and 
collaborateurs within the meaning of the doctrine in question." The rule ib 
sot affected by the fact that tl\e rank of the servants is different, or that the 
grade of employment in which the injured servant is engaged is inferior to 
that of the servant by whoee negligence the injury was caused: Albro v. 
Aganeam Canal Co., 6 Cush. 75; Wigmore v. Jaiy, 5 Ezch. 354; Pdtham v. 
England, 2 L. B. Q. B. 33; Peterson v. WhitOreasC C. S M. Co., 50 Iowa, 
673; S. C, 32 Am. Bep. 143; Collier v. Steinhart, 51 CaL 116; McLean v. 
Bine Point Oraivel M. Co., Id. 255; O'Connor ▼. Roberts, 120 Mass. 227; 
MarskaU t. Schrieher, 63 Mo. 308; Malone v. Hathaway, 64 N. Y. 5; S. C, 
21 Am. Bep. 573; 2eigUr v. Day, 123 Mass. 152; Ho/nagle v. N. Y. C. A H. 
R. R. R. Co., 55 N. Y. 606; Lander v. Androscoggin R. R. Co., 62 Me. 463; 
Blahs v. Maine Central R. R. Co., 67 Id. 60; 8 C, 35 Am. Bep. 297; Thayer 
V. SL Lowis, AUon etc R. R. Co., 22 Ind. 26; nor is the rule changed because 
the servants ace engaged in separate and distinct departments of the service, 
if they are subject to the same general control and the employment ib a 
common one: Cohanbus A Ind. Cent. R. R. Co. ▼. Arnold, 31 Ind. 174; 
Poster V. Minnesota Cent. R. Co., 14 Minn. 360; Railway Co. v. Lewis, 33 
Ohio St 196; Kielley v. Beldter S. M. Co., 3 Sawyer, 500; St. Louis A 8. E. 
R*y Co. V. Britz, 72 IlL 256; C. A A. R. R. Co. v. Mui-phy, 53 Id. 336; S. 
O., 5 Am. Bep. 48; Cooper v. MUwoAihee and Prairie du Chien R. Co., 
23 Wis. 668; SlaUery v. T. d: W. Ry. Co., 23 Ind. 81; Bailee v. N. Y. «fc //. 
R. R. Co., 59 N. Y. 356; S. C, 17 Am. Bep. 325; Sammon v. New York d 
H. R. R. Co., 02 N. Y. 251; Hodgkins ▼. Eastern R. R. Co., 119 Mass. 419; 
Whaalan r. M. R. <fe Lake Erie R. R. Co., 8 Ohio St 249; Ohio dr M. R. R. 
Co. V. HammersUy, 28 Ind. 371. 



288 MxTfiRAY V. S. C. Railboai) Ck>. [S. Oarolipa^ 

A oommon laborer in the employ of a railroad oampany, who is oQQveyed 
to and from Mb labor, as a part of hia contract of service, is a co-employee 
with the other servantB who have charge of the train of can in which he ia 
being conveyed: CfUUhtmnon v. Stony Brook B. B, Co., 10 CoBh. 298; Ttamei^ 
V. Midland B. B. Co., 1 L. E. C. P. 291; Seaver v. BoaUm and Maine B. B, 
Co,, 14 Qray, 466; Kanaas Pacific B, B. Co. v. Salmon, 11 Kan. 83. A con- 
doctor who is being conveyed upon his employer's railroad to a certain point 
on the road, under instructioDS requiring him to proceed to that point to tak« 
charge of a train there, is also a fellow-servant with those who have the man- 
agement of the cars in which he is riding: ManvUle v. Cleodand and Toledo 
B. B, Co., 11 Ohio St. 417; but in O'DowneU v. Allegheny VaUey B. B. Co., 
69 Pa. St. 239, it was held that a caipenter, working as such for a railroad 
company, while being conveyed to or from his work, was a passenger, and 
not a fellow-servant with the employees engaged in running the train or re* 
pairing the track. And where an express company hired its freij;fat trans- 
ported on the steamer or railroad of a company engaged in transporting, 
freight or passengers for hire, as common carriers, and hired an agent to take 
charge of such freight, whose passage was paid for in the contract, such agent 
occupies the position of an ordinary passenger, and the carrier is liable for 
the injuries he may sustain from the negligence of its employees: YeomoM v. 
Contra Costa S. N. Co., 44 CaL 71. And the rule is the same, although the 
agent was the proprietor of a bar, for the sale of liquors and cigars on board 
the carrier's steamer on which he was conveyed as a part of his contract: Id« 
In McAndrews v. Bums, 30 N. J. L. 117» Balrimple, J., defined the relation 
comprehended by the term feUow-servant as follows: "A fellow-servant I 
take to be any one who serves and is controlled by the same master. C6m- 
mon employment is service of such kind that, in the exerdse of ordinary 
sagacity, all who engage in it may be able to foresee, when accepting it, that 
through the negligence of fellow-servants, it may probably expose them to- 
injury . The ground on which rests the exemption of the master from liability 
to the servant for negligence of a fellow-seiVant engaged in a common em- 
ployment is, that the servant is presumed to contract in reference to the risk 
incurred. So in Valiez v. 0. ds M. Ry Co., 85 HI. 600, holding that where 
a servant of a railway company sustained a personal injury while engaged in 
repairing cars, through the negligence of a fellow-servant, a driver of a switch- 
engine, in mistaking a signal while propelling cars, was not entitled to re- 
cover, the court declared a proper test of the relation to be, whether the neg- 
ligence of one servant was likely to inflict injury on another. Upon the 
question whether, where the employment of the respective servants is in sepa- 
rate and distinct departments or divisions of the common service, they are to 
be considered co-employees, so as to subject them to the operation of the 
rule, the authorities are not entirely harmonious. Particularly in minoia, 
the doctrine prevails, that where the servants of a common roaster are not- 
associated together in the discharge of their duties, where their employment 
does not require co-operation, and does not result in mutual contact, or bring, 
them together in such relation that they may exercise upon each other an in- 
fluence promotive of safety or caution, the reason of the rule does not apply: 
C. ds N. W. B. B. Co. V. Moranda, 93 HL 302; S. C, 34 Am. Rep. 168; C. B. 
/. df P. B. B. Co. V. Henry, 7 IlL App. 322; C. <Ss N. W. B. B, Co, v. StoeU, 
45 IlL 197; T. W. A W. B. Co. v. O'Connor, 77 Id. 391; Byem v. C. A N. 
W. B. Co., 60 Id. 171. 

A sub-contractor for the purpose of building bridges on the Une of a rail- 
road is not a co-servant of those employed by the corporation in operating the* 



Feb. 1841.] MuBBAT v. S. C. Bailboad Ck>. 289 

road and maimging tnini tberaon: Ikmaldmm y. lilssiu^ppi A Mo. R. R. 
Cb.y 18 Iowa, 280. Servaati of a oontraotor and those of atab-oontraotor are 
not oo-aervante within the meaning of the rale: Ahrdkam ▼• Reynolda^ 5 H. It 
K. 142; Murpkifv. OandU, 3 H. &a 402; Toungr. H. T. C. R. R. Ob., 30 
Barb. 229; ffwU v. Pamtylvaaia R. R. Co., 51 Pa. St. 475; Murmy v. OtirrJe, 
6 L. B. O. P. 24; ffatay, Philadelphia A 8. M. 8. Co., 88 Pa. St 209; S. C, 
32 Am. Bep. 402; RHey v. State Lkie8, 8. Co., 29 La. Ann. 791; S. C, 29 
Am. Bep. 849; aMN(/eBoio V. BosUm, ff. AB.R. i?. Oo., 100 liaaa. 401; A«ii- 
&om ▼. A. M. 8. 8. Oo., 57 K. T. 108; Ouriey r. Harrie, 11 Allen, 113; bat 
*vhere the aervanti of the oontraotor are onder the general direotion, oontrol» 
and miperyiiion of the jwreon for whoee benefit the work is being done, the 
■ervants of the former are co-servants with those of the latter, so as to exon- 
erate him from the oonseqnenoes of their n^ligenee: Johneon ▼. Bo&Um, 118 
Haas. 114; Romke ▼. WhUe Moea Colliery Cb., 1 L. B. C. P. Div. 550; so, 
wliers one railroad oompany onder a mntoal arrangement with another, is 
permitted to mn its trains npon the track of the other, the servants employed 
by the respective companies are not co-servants, and an action may therefors 
be sostained by the servants of one company to recover for injories cansed by 
the negligence of the servants of the other: Sawyer v. RmUamd and BwrUny^ 
UMR.R, Co., 27 Vt. 370; IT. A C. R. R. Co. v. CamO, Heisk. 347; SmUk 
V. iT. r. is H. R. R. Co., 19 N. T. 127; Catawieaa R. R. Co. v. Armetrong, 
49 Pa. St. 188; Corroff v. Mwnemia Valley R. R. Co., 13 Minn. 30; ITorfrHr- 
loa V. O. W. R. Co., 2 Exch., 1800-7, 29. 

When the position of a servant is snch that he is the agent of the master in 
respect to some matter which the master himself is bsnnd to perform, as in 
the preparation of matierialB, oonstraction of machinery, or the employment of 
servants in the common service, he is not a f eUow-servant with those into 
whose bands the mere mannal execntion of the bosinees is introsted, bat 
rather occopies the place of the master himself, and stands in the same posi- 
tion as the master woald have done had he taken charge of the condact of the 
work in person, instead of confiding its management into the bands of an 
agsnt. For the negligence of his servant or agent in snch case, the master ia 
responsible in the same manner as if the act was his own: BraMU v. Chicago 
S N. W. R. Co., 38 Wis. 289; Gormly v. Vvkan Iron Worhe, 01 Mo. 492; 
Ber^ Stone Co. v. Krtuft, 31 Ohio St 287; S. C, 27 Am. Bep. 510; Cumber* 
kmd S Pa. R. R. Co. v. State, 44 Md. 283; Devany v. Vvkan Iron Wwrhe, 4 
Mo. App. 230; JfnOon v. PhOa. A 8. M. S. Co. , 78 Pa. St. 75; Snow v. Houe- 
atanie R. R. Co., 8 Allen, 447; i'Wfer v. JeweU, 80 N. Y. 40; S. C, 30 Am. 
Bep. 575; T. W.S W. R*yCo. v. Inghram, 77 HI. 309; DMin v. Riehmtmdand 
DanMe R. R. Co., 81 K. O. 440; S. C, 31 Am. Bep. 512. An illostration of 
this principle may be stated in the case of injories resolting from an explosion 
of a boiler, which was permitted to become and remain onsaf e, on account of 
the negligence of the persons charged with the control of the department oi 
the service relating to oonstraction and repairs: Fuller v. JeweU, mtpra; T. 
M. A W. R'y Co. V. Moore, TJ 111. 217; or, where the injory was the resolt of 
the negligence of an employee in charge ot that department, to famish a train 
with a soifident nnmber of brakemen: Booth v. Boeton and Albany R. R. Co., 
73 K. Y. 38; S. 0., 29 Am. Bep. 97; so also a brakeman may maintain an ac- 
tion against the corporation for injories sostained throogh its negligence to 
have its cars inspected: Brann v. C. R. I. A P. R. R. Co., 53 Iowa, 505; S. 
G., 30 Am. Bep. 243. 

Thx Bulb has bebn Chamoxd vt Statutb in som Statu.— Thui is the 
ease in Georgia and Iowa. A distinotion is still made, notwithstanding, in 
AM. l>na. You xzrn— It 



290 Akdebson v. Fulleb. [S. Carolina^ 

thoM ■tatas, between tbe case of an employee, who Baataina injury thtvagii 
the negUgenoe of a feUow-aervant^ and that of a atranger. It ia aaid in the 
fcRiner atate, that the diatinction made by the oode between an employee in- 
juxed, and other penona, ia, that the employee moat be wholly Uameleaa, 
while othen may recoyer thongh partly at fanlt: Tkompmm v. Cemtral R, R, 
^ B, Co., 64 Ga. 600. The aupreme oonrt of Iowa declared that the dia- 
tinotion betwe e n the liability of a carrier to ita paaaengera and that which, 
under the atatnta^ it bora toward ita employeea, waa, that while extraor- 
dinary oava'waa doe the paaaenger, ordinary oare only waa doe to the 
pkyee: BwUt. (MmgoSN. W. B. B. Ob., 26 Iowa, 868. 



AisDEBSON V. Fuller. 

[1 ICoXoxxAiri BQmn, 27.] 

l>DiOft ]C4r Orra Pbbtkbxnobs amovq his Crsditobs; but i^ in the deed of 
aarignmimt, he raaenrea any advantage to himaelf, auoh lu a etva tioo 
▼itiatea the deed, and the advance of additional oonaidenition at the 
time of the eonveyanoe will not change auoh reault. 

IdUYDTO A Debtor in Pobsbssion of his Pbopxbtt ia anch a benefit aa 
vitiatea an aaeignment made by him, for the benefit of hia oreditora. • 

CONTITANCB, WHKV SXT AStDE OM THB LlOAL iNISBBirCI OV FbAUD, in the 

abaenoe of any evidenoe of a corrupt agreement between the partiea, 
will be allowed to atand aa aeouri^ for any oonaideration adTanoed by 
the grantee. 

Bill in equity to set aside an assignment for the benefit of 
creditoxB. Thomas D. Steedman, an insolvent and judgment 
debtor, on March 5, 1836, oonTejed to the other defendant. 
Fuller, in consideration of one thousand nine hundred and fifty 
dollars, the premises upon which he resided, containing three 
hundred and nineiy acres. At that time the land was mqrt- 
gaged to the ordinary to secure the purchase price, amounting 
to five himdred and fifiy-three dollars. Contemporaneously 
with such conyeyance, an agreement was entered into between 
the parties defendant, that, in part consideration therefor. 
Fuller would pay off all debts and judgments of Steedmau. 
The agreement further provided that Steedman might occupy 
and cultivate the land for the present year, and upon repayment 
of the sums advanced in extinguishing the liens thereon, might 
have the option of redeeming the same. In pursuance of this 
agreement Fuller paid off and satisfied aU judgments and other 
liens upon the land. Steedman had always continued to reside 
on and cultivate a portion of the land. In the fall of 1836, 
complainants recovered judgment against Steedman, and upon 
the return of the execution nuHa bona, brought this suit to set 



Dec 1840.] Andebson v. Fuller. 291 

aside the aboye deed as fraudulent. Oomplaixiaiits had decree 
in their faTor, and defendants appealed. 

Taung, for the appellants. 

SuUivan, for the appellees. 

By Court, Hakpeb, Chancellor. We concur with the chan- 
cellor in thinlriTig that the cose comes within the principle of 
the decisions in the cases of SmWi v. Benry^ 1 Hill's Ch. 62,' 
and Maples ▼. Maplen, liice's Eq. 310. And it does not seem to 
us material whether the conyeyance be regarded as a mortgage 
or a sale. It was, evidentlj, the understanding of the parties, 
that it was a sale with the right of redemption, and in pursuance 
of this understanding the premises were generally surrendered 
to the defendant Fuller; the defendant Steedman being per- 
mitted to retain the himdred acres in question. This is the case 
in which the law draws the inference, that this advantage was 
the consideration on which the preference was given to the cred- 
itor. The answer of Fuller is not evidence to show that it was 
upon a subsequent agreement to sell, that Steedman was put into 
possession; nor is the testimony of Steedman material. It is 
said in the case of SmUh v. Henry, that it makes no difference 
that an additional consideration is advanced at the time. In 
general, when a conveyance is set aside for fraud, it is within 
the discretion of the court to decree the conveyance to stand as 
a security for the money actually paid. This is commonly done 
where there is no imputation of moral fraud, or the proof of 
actual fraud is in any degree doubtful: See McMeekin v. Ed- 
wards* 1 Hill's Ch. 294, and the cases there referred to. And 
this does not disagree with the case of MUler v. ToUison, Sta. £q. 
145 [14 Am. Dec. 712], where a conveyance absolute on its face, 
having been made to secm*e a previous debt, and the grantee 
having fraudulently attempted to set it up as an absolute con- 
veyance against creditors, the court would not allow it to stand 
as a security for the money actually due. As the rule of Smith 
V. Henry is an inference of strict law, on account of the danger 
of any other construction; as it may be that there was no cor- 
rupt agreement between the parties, but an act of spontaneous 
kindness and indulgence on the part of the grantee, perhaps it 
would be generally proper, when setting aside a conveyance on 
the legal inference alone, to decree it to stand as a security for 
any consideration advanced at the time. 

In this case there was a consideration at the time. The de- 

1. 1 BUl't U 16. 3. McMukin ▼. Bdmandi; S 0., 26 Am. Deo. 208. 



292 Andebson t;. Fuller. [S. Carolina^ 

feudant coyexumted to pay off the mortgage to the oidinaiy and 
the judgments haying a lien on the hmd, which he has sinoe 
doi&e. But this is stronger than the ordinary case of money 
paid at the time. If a person haying the oldest judgment against 
another, to the full yalue of the properly, should take an assign- 
ment of the property in satisfaction of tiie judgment, this would 
Aot come within the rule of 8mi£k y. Henry. The assignee had 
already a right to be satisfied out of the property, in pref ezenoe 
to all other creditors, and it could be no fraud on them to take 
from them what th^ neyer could haye got. The mortgage to 
the ordinary had the first lien on the land, and if, without taking^ 
a conyeyanoe, the defendant had paid it off and taken an assign- 
ment to himself, he would haye had the same priority. So if 
he had paid off the judgments haying a lien on the land, and 
taken an assignment, his own judgments were entitled to sat- 
isfaction out of the property, in preference to all subsequent 
liens, or creditors. And certainly there can be no wrong to the 
complainants or any subsequent creditors, that these daims 
should be first satisfied out of the land. The course of the 
Bngliflh practice would be, to decree that the complainanta 
should haye the right to redeem, but it is the established prac- 
tice of our courts, to direct a sale of the land and the payment 
of the proceeds to creditors according to their priorities. For 
this purpose, it will be necessary to order a sale of the entire 
tract of land. It is, therefore, ordered and decreed, that the 
commissioners take an account of the liens, existing on 
the land at the time of the conyeyance, and which were 
satisfied by the defendant Fuller, including his own judgments; 
and of all other liens, prior or subsequent to the conyeyance; 
that the complainants be at liberty to redeem the land by paying^ 
to the defendant Fuller the amount which may be found due 
him on account of the said liens, extinguished by him on or be- 
fore the first day of January next; or if they shall fidl to do so^ 
that the commissioner proceed on that, or some other conyenient 
sale day, to sell the entire tract of land for cash, and that he 
pay the proceeds of the sale to the defendant Fuller and the 
other creditors of the said Thomas J. Steedman, according to 
the priority of the said liens. Costs to be paid out of the pro- 
ceeds of the sale. 

Ohancellors Johhsov and Dukxih concurred. 



BiOBT or A DsBTOB TO Giyx PRBISBBNCBB anumg his oredilon, and th» 
ttmitatkniB thereon, are subjects disoassed in the note to Oranrfbrd y. TayUtr^ 



Dec 1840.] Hancock v. Day. 293 

26 Am. Deo. 584. S6e,alao,i^io&mv.2>Mitito,90Id.368;^l»pim^ 
ham, 31 Id. 042. 

RnntVATiOH nf a Died ov Assionmsat for the benefit of eredkora of 
mny advantage to the debtor will yitlate the aadgnment: Auttm y, Bdl^ 11 
Am. Deo. 297; Jfodbie ▼. ObJnia, 16 Id. 477, and note; Beck y. BurdeU, 19 
Id. 436; MeCiurg v. Leeiy, 23Id. 64. 



Hanoook v. Day. 

[1 KoHuLLAir*! Bquztt, W.) 

Cb-WAHT, IN TBB ExoLusiTE P08SSS8ION OF Lakb, Ib liable for the rent of 
aonraoh of the premiaea aa waa capable of producing rent at the thne he 
took poa aeario n, bat not for what waa rendered capable by hia labor. 

Ib-nvAiiT n LiABLB VOR Wasts oommitted by him on the oonmion prop* 
erty. 

Oo-TSHAHT n NOT Ektxtlid TO GoMPSNSATiON for improvementa made by 
him on the eommon property. 

Bill for partition faronght by Nanoj, Simon, and William J. 
Hancock, infants, suing by their goardian, against Martin H. 
Day, their tenant in common of certain lands, of which the de- 
fendant had been in the exclnsiTe possession, praying for a 
partition of the same, and that the defendant should account 
for the rents and profits thereof, whilst in his possession. The 
defendant admitted the co-tenancy, but alleged that he had 
neyer cultivated more than his share of the land, and claimed 
that therefore he was not liable for the rents and profits. Upon 
the hearing of the report of the commissioner appointed to 
make partition, the chancellor decreed, that the defendant was 
liable for three fourths of the rental value of the land from the 
time that he came into possession, for any waste that he might 
have committed, subject to a right of set-off for the value of any 
improvements erected by him on the land. From this decree 
defendant appealed. 

Wardlaw and Wardlaw, for the appellant. 

No appearance for the appellees. 

By Court, Johnston, Chancellor. It appears that the ques- 
tions respecting rent, involved in this appeal, were decided sev- 
eral years ago, in two cases, yet in manuscript, which, it is to 
be regretted, have not been reported. I refer to the cases of 
Ihompsan v. BosHck,^ M. S. E. 345, and Carr v. Bobertson, M. 
S. F. 74; of which I never heard until they were suggested on 

1. 1 MoMqU. Bq. 7ft. 



294 Hancock v. Day. [S. Carolinai 

the azgument of this appeal. The general role established by 
them is, that as between co-tenants, the oocapying tenant is 
liable for the rent of so much of the premises as was capable of 
producing rent at the time he took possession, but not liable for 
what was rendered capable bj his labor. If he commits waste 
(and the pleadings make a case of waste), he is liable for that. 
If he makes improyements, he is not entitled to raise a charge 
for them. It is unnecessary to do more than state what the 
cases decide. For the reasons of the decision, I refer to the 
opinions deliyered in the cases themselyes. A motion was made 
that the defendant's share of the lands sold in this case be re- 
tained, in order to satisfy out of it what shall be established 
against him on the score of rent. It wasnotshown thathe was 
insolyent, or in doubtful circumstances; nor was any special 
reason assigned why the order should be granted; and certainly 
he should not haye been subjected to the loss which would hare 
accrued from granting the motion, unless for some reason ren- 
dering it necessary. The court is of opinion that it was prop- 
erly refused, and dismiss the plaintiffs appeal on that point. 
Let the circuit decree be modified, and let the report be 
committed, to be reformed according to this opinion. 

Ghancellors Johnsoh, Habfeb, and Dmmv ooncuzxed. 



The case of Thompton ▼. BoaUck, I MoMoUaa*! Bq. 76^ referred to in the 
opinion of the court in the principal case, waa a eoit in equity by one tenant 
in common against another in possession for rent. The common proper^ 
consisted of a large tract of land, of which aboat half was cleared and fit 
lot cnltivation. This the defendants cnltiirated. While in the exolasi<v« 
poss eesi on of the common property, they caused more land to be cleared and 
cnltivated, and erected improvements thereon. In rendering his opinion in 
the lower coort the chancellor said that the defendants ** onght to be charged 
with the rent of land, estimated as it was when they took possession of it, 
and are not to be charged with the rent of the newly cleared land or credited 
for improvements. There is nothing, I think, in the objection that defend- 
ants did not receive rent, bat cultivated the land themselves. To cultivate 
and have the use of lands, is to receive the rents and profits, thoogjh the oo- 
cnpier is his own tenant • • • They are not to be charged with the 
rent of the land cleared by them, becaoa e the premises were rendered capa- 
ble of producing that rent by means of their improvement. The clearing of 
the land was waste; bat if the value of the whole premises waa improved by 
it the complainants would only recover nominal damages at law. If the 
valne had been deteriorated, damages might have been recovered according 
to the injory." Upon appeal to the court of appeals tiiis decree of the 
chancellor was a£Srmed. 

LiABiLiTT or Co-TXNANT voB THB EzoLUSiYB USB and Occupation d 
the common property: NelKn v. C^y, 23 Am. Bee. 387, and note citing the 
prior cases in this series. See also Ei^ffner$ v. LewUf 30 Id. 513. The prin- 



Dea 1840.] Hancx)gk v. Bay, 295 

etgtl case is not in bainumy with the weight of the anthoritieB npon the 
■ol^jaet In "Bngland, and we think in a majority of the United States, 
wlMre no rtatatory role to the oontrary haa been adopted, a tenant in oom- 
■Mm, iriiile aoaweraUe for rente and profite by him leoeiTed, ean not be made 
to pay not lor the piemiaea when ooonpied by him penonally, there being no 
of hla eo-teoantas Freeman on Co-tenaney and Fart, aeoa. 274-276. 



CASE 



SUPREME COURT 



TENNESSEE. 



Gbaob V. ELllb. 

tS Hmmnn, IT.J 

iMWAin iCAT BaaanrD Coxteaot ov BxoHAiroB tfaon^ 1m thmbgr ohUhii 

y t op&dy naoemry for his nw. 
Hina IB vov KioiBaABT vor an Intasit, though the Uttar mm ponittod 

to oultivAte a portioD of hU father's land for hia own henefit. 

Tboveb. The facts snfficientlj appear from the apinion. 
Judgment for plaintiff; the defendant appealed. 

B. J, MoEinney, for the plaintiff in error. 

T. D, Arnold, contra. 

By Court, Bebsb, J. Thia is an action to reooTcr the raluB 
of a horse owned l^ the plaintiff and giTen by him, he being a 
minor, to the defendant in exchange for another. Plaintiff 
lived with his father and was maintained by him, bat being per- 
mitted to cultivate, for his own benefit, a portion of his fiither^s 
land, it is contended that a horse proper for agricultural oper- 
ations became, under the circumstances, necessary for the infant, 
and that his contract for exchange will bind him. The sup- 
posed error in the judgment below, which was in favor of the 
infant, here mostly insisted on, is that the court charged the 
jury that the question whether necessaries or not is one exclu- 
sively for the court, with which the jury have nothing to do; 
and in the sense in which this was said by tke court it is cer- 
tainly correct. It is matter of law that the necessaries for which 
an infant may bind himself by contract, consist of diet, ap- 
parel, washing, lodging, schooling, and medicine; but whether 
within these limits certain articles were in fact necessary, and to 



July, 1840.] Grace v. Hale. 297 

what extent, becomes, in the language of Lord Eenyon, 1 Esp. 
1U2/ a xelatiye fact to be gOTexned by the fortune and oizomn- 
«tanceB of the infant: 8 T. B. 678.' But it seems to us that 
this question did not here arise. The question here is not for 
what necessaries and to what extent an infant may mal^ him- 
self liable, bat whether an infant can sell or exchange his prop- 
erty. 

It has been held that if an infant sell goods the sale is Toid, 
4aid if the vendor takes them trespass will lie; but if the in- 
iaiDt deliyer them with his own hands that form of action will 
not lie, but he may avoid the contract of sale: 1 Mod. 187.' So 
it has been held in this country, that an infant having sold per- 
gonal property may at full age disaffirm the sale and reclaim the 
property: WUUaims v. Morris, 2 Bibb, 107.* But it is said, that 
the contract of sale or exchange in this case is rendered valid, 
because the horse was, under the circumstances, necessary for 
the infant. But it has been ruled that if an infant become a 
shopkeeper and buy goods and wares for the use of his shop, 
the contract does not bind him: 1 Boll. 729; 2 Cro. 494.* If he 
borrow money, though he afterwards employ it for necessaries, 
be is not liable to the vendor: 1 Boll. 279; or even if it were lent 
to him for the purpose of procuring necessaries, for the lender 
•ought to provide them: Id. 88G, 887. The sale or exchange 
therefore, by parity of reasoning, would not be rendered valid 
loerely because the thing obtained thereby might be necessary. 
But we are of opinion, also, that in this case the horse procured 
was not a necessary within the meaning of the law; we are also 
-of opinion that the court did not err in holding that in such an 
action the plaintiff was entitied to recover the value of the prop- 
erly, and that the jury ought not to take upon themselves to 
jni^ an equitable adjustment between the parties. 

Let the judgment be affirmed. 



ixTAHT^ CovTBAOis. — ^A Bale made to an infant by a person of foil age ia 
vtiidable ooly by the infant: Oliver ▼. Houdlet, 7 Am. Dec 134; and a oon- 
inet to mazry an adult is voidable at the election of the infant, bat not void. 
The infant may maintain an action for a breach of contract^ while the adnlt 
<oan not: Hunt v. Peakey 15 Id. 476; WUlard v. Stone, 17 Id. 400. A con- 
tract made by an infant and an adult is binding on the latter only, against 
whom alone an action can be sustained: HuU ▼. CovmoUy, 16 Id. 612. And 
the infancy of a pcurty oontracting can not be set np by the other party in de- 
fense to an action bronght by the minor for the enforcement of the contracts 
Amoue v. Leeaeeier, 29 Id. 470. 

L ^ord T. FUktrffOL 3. Handi ▼. SUmeg. 8. Manthg ▼. Scttt, 

4. IRIUmm ▼. iforHt, 2 LItl. 167. 6. WkUtimglMm r. SiU, Oro. J§e, 4IH, 



298 Ttleb v. State. [Tenn. 

Infuitt are oompelled to eleot whether to affirm or disaffirm on ooming of agar 
Overbach v. Heermaneej 14 Id. 546. There need be no direjt promiae on the- 
part of the infant to amonnt to a ratification: WhUney v. Dutch, 7 Id. 229v 
bnt the ratification must be something more than a mere aoknowledgmentt 
Benham ▼. Bishop, 23 Id. 358; Lawaon v. Lov^ay, Id. 526; Thon^ftaon t. 
La/fff 16 Id. 325. For examples of what amounts to a ratification, see BigeUm- 
V. Kinneif, 21 Id. 589; Martin ▼. Mayo, 6 Id. 103; SmiUh y. Mayo, Id. 28| 
Lanmon ▼. Lov^oy, 23 Id. 526; Benham ▼. Bithop, Id. 358; Dana ▼. 
Coomb$, 19 Id. 19i. A ratification may be inferred: Biffdow ▼. Kinney, 21 
Id. 589; Lynde ▼. Budd, Id. 84. Anything from which assent may fairly b» 
dednced will be regarded as a oonfinnatioii: OheMrs v. BamU, 17 Id. 735; 
Wheaton ▼. Baal, 26 Id. 251. An infant must either affirm or disaffirm the- 
whole contract; he can not affirm a part and disaffirm the balance: Robert t. 
Wiggin, 8 Id. 38; Bigelow ▼. Kinney, 21 Id. 589. 

Infant's contracts for lieceesaries are binding: Fridge v. Staie, 20 Id. 463). 
LoMmm ▼. Lov^'oy, 23 Id. 526; Wheaion ▼. Basl, 26 Id. 251; SUme ▼. Den- 
nieon, 23 Id. 654; and for neoessaries suitable to his rank and oonditioa: 
KUne ▼. L*Amoreux, 22 Id. 652; bnt a horse does not properly come under 
the designation of neo e s sa ries; Bainwaier ▼. Durhatn, 10 Id. 637. And ai^ 
infant under the care of a palfent or guardian, able and wiDiog to furnish, 
him actual neoessaries, can make no binding contraot therefor; KUne ▼• 
VAmoffMa^ 22 Id. 662. 



TxiiESB V. Statb. 

[S Humm, ST.] 

bmionnnfT ioa Obcaxkino Goods bt Faibb PBnmaB, What Hi 
SABT nr.^It is an indispensable requisite of aa indiotment for obtaining' 
goods by false pretenses that there be an absolute negative of the truth 
of the pretenses employed. 

Wbxbb <jkx>]>s ABS OBTAiinED BT MiAHB OF A CouirrxBVBiT Lrtbb, aa 
averment in the indictment that the party whose name is signed to the 
letter "never did write or send, or cause to be written or sent any such 
letter," is a distinct and sufficient negative of the truth of the pretenses. 

bmicniBNT vob Obtainiko Goods bt Fauu PBamniB can be sustained* 
though the party who puiported to be the drawer of the order had n» 
interest in the goods obtained. 

Indioticent for obtaining goods by false pretenses. The opin-^ 
ion states the case. 

Swan^ for the plaintiff in error. 

HwmphreyB, aUomey^eneral, for the state. 

By Court, Gbben, J. The plaintiff in error was convicted in. 
the Enoz cironit court, upon an indiotment founded on the act 
of 1729, c. 84, sec. 60, for obtaining goods by false pretenses. 
The indictment alleges that the defendant presented to LuttreU 
& Gkdns a false and counterfeit letter, purporting to be written 
by Bobert H. Luttrell, which is in the following words: 



July, 1840.] Ttleb v. Statk 29& 

*' Messrs. Gkiins & Luttrell, at EnozTille, please to let the 
bearer, E. Tyler, have fiye dollars in goods, on my account. 
" September 28, 1839. Yours, Bobbbt H. Luttbell." 

By means of said letter the said Tyler obtained from the said 
Luttrell & Gkuns two silk handkerchiefs worth two dollars, six 
yards of calico of the Talue of one dollar, and other goods to 
the value of two dollars, which goods were delivered upon the 
faith and credit of said letter, to the said Tyler, ** whereas in 
truth and in &ct the said Bobert H. Luttrell never did write or 
send, or cause to be written or sent any such letter to said Lut- 
trell & Gains, or any one else, to let the bearer have any amount 
in the store whatever." There are three counts in the indict- 
ment containing substantially the same statement, except that in 
the first count the goods are charged as being the property of 
Mathew M. Gains; in the second count as the property of 
Mathew M. Gains and James 0. Luttrell, and in the third 
count as the property of Mathew M. Gains, James 0. Luttrell, 
and Bobert H. Luttrell. 

A motion was made in arrest of judgment, but the motion 
was overruled and judgment rendered upon the verdict. It ia 
now insisted for the plaintiff in error that the court erred: first, 
because it is insisted the indictment does not sufficiently neg- 
ative the truth of the pretenses employed by the defendant. It is 
certainty an indispensable requisite of an indictment of thia 
character, that there must be an absolute negative of the truth 
of the pretenses employed: 8 Chit. Crim. L. 189. But we 
^liink such a negative is contained in this indictment. The only 
pretense charged in the indictment to have been employed, waa 
the letter which purported to have been written by Bobert H. 
Luttrell. Having set out the letter the indictment avers ** that 
the said Bobert H. Luttrell never did write or send, or cause to 
be written or sent any such letter to the said Gkdns & Lut- 
trell, or to any one else, to let the bearer have any amount in 
the store whatever;'' although the idea intended to be conveyed 
is not very happily expressed in this averment, yet it contained 
a distinct negative that the letter which had been set out, waa 
written and sent by Bobert H. Luttrell. If Bobert H. Luttrell 
never wrote or sent, or caused to be written or sent any such 
letter as the one copied in the indictment, how could it be true 
that he wrote and sent the indentical letter by virtue of which 
the goods were obtained ? It could not be; for having done the 
act spoken of, it could not be said that he had not done such 
an act. 



300 McIntibe v. McLaubik. [Teim. 

2. It is next insisted that as this is a foiged order for goods, 
in which the party who purports to be the drawer of the order 
had no interest, this indictment can not be sustained upon the 
statute; and the authority of the case of Walion t. The States 6 
Yerg. 877, is relied on. In that case the indictment was for for- 
gery founded on the fortieth section of the statute. Had Wal- 
ton succeeded in obtaining the watch, it was admitted bj his 
counsel (p. 883) that he would ha^e been guilty of the offense 
punishable by section 60. The two sections are entirely different, 
and provided for different cases. Section 40 defines forgeiy 
and prescribes its punishment This offense is complete, whether 
any third person be actually injured thereby or not; but in the 
case before us, there would be no crime unless some one re? 
oeiye a prejudice from the act: 2 Buss, on Crimes, 850. In 
WaUon's case, the indictment was for forging the paper. The 
watch was not obtained; no person was injured. Here the in- 
dictment is for fraudulently, by means of the forged order, 
obtaining the goods of Gains & LuttreU. The counterfeit 
letter was only a means by which he was enabled to commit the 
crime. Any other false token would haye made the act of 
fraudulently getting the goods equally criminal. 

Let the judgment be affirmed. 

Faibb PBBTBr8E8.>-Thii offisDM oonsistB in indndiig the owner to p«rt with 
goods, either by willful falsehood or by the offender's Mnuning a ehaxaoter he 
does not sastam« or by representing himself to be in a sitoation he knows he 
is not in: People ▼. Haynee, 28 Am. Dea 590. An indictment for obtaining, 
1^ false pretenses, a signatore to a note need not allege that any one soffered 
aotnal loss or prejudioe thereby: People v. Oenung, 25 Id. 594. Bat whether 
an indiotment for obtaining goods by false pretenses that sets forth several 
false pretenses indnoing the sale of the goods will be snstained by proof ol 
•ome of the falie pretenses, quiore: People v. Haynee^ SMprcu 



MobrriBE V. MoLaubin. 

[2 HTIlfPHBXZS, 71.] 

NoTB AsanGNXD BY Ons Msmber of a Pabtihebship does not pan mxk 
an interest in it that the assignee can set it off in a suit on a bill single 
executed by himself to the assignor, who assigned it after matoxity to the 
plaintiffl 

Appeal in error from the October term of the oirouit court of 
Lawrence couniy, 1840, Dew, special judge, presiding. The 
opinion states the case. 

j^. S. Broum <md Wrighl^ for the plaintiff in exroi. 



Dec. 1840.] MoFFiT v. State. 301 

Combs, for the defendants in error. 

By Oonrty Tublet, J. On the eleyenth day of Jiilj» 1888» 
liicLaurin exeooted his bill single to B. & B. SessomSy for five 
hundred and forty dollars, payable the first day of Jannaiy 
following: this was assigned to the plaintiff Molntire by B. & 
B. Sessoms on the fourteenth of June, 1889. On the twenty- 
third day of June, 1888, B. & B. Sessnms executed their note 
to James Shelton & Oo. for five hundred and sixty-two dollars, 
payable on the first of March following: this note was assigned 
by James Shelton indiyidually, and not in the name of the com- 
pany, to McLaurin, on the thirty-first of May, 1839. The 
plaintiff, Mdntire, sued McLaurin and B. & B. Sessums, on the 
note executed by McLaurin to the Sessums, and they set up the 
note executed by the Sessums to James Shelton & Co. and 
assigned by James Shelton to McLaurin as a set-off, which was 
allowed by the court. To this the plaintiff excepted, and has 
prosecuted his writ of error to this court In the argument, 
several points are incidently discussed, all of which, except one, 
we deem it unnecessary to notice, as that is condusiTe upon the 
question and well settied. The note attempted to be used as a 
set-off, was, as we have seen, executed to James Shelton & Co., 
and it was only assigned by James Shelton; this did not, either 
upon principle or authority, pass the interest in the note to the 
assignee, and therefore he could not use it as a set-off. This 
question has been so well considered, and so often determined, 
that we deem it unnecessary to discuss it, and will merely refer 
to the authorities: 4 Johns. 224;^ Bailey on Bills, 40; Doug. 
668;' 9 Mass. 334,*' Chit, on BiUs, 8th Am. ed., 66, 67; 16 East» 
7;* 2 Pet. 186.» 

The judgment of the circuit court will, therefore, be reversed 
and the cause remanded for a new trial. 



8iT-onr, AND WHAT Bbmaitds Subject of*. See the note to OrtggY, JameB^ 
IS Am. Dec. 161, for » dlMmaBioQ of this sabjeot. 



MOFFTT V. StAXB. 

[9 nxntrsaxn, 99,] 

WiiB ov Paktt Jodvtlt Indicted with Othebs as a Wimss. — ^Where 
three partiee are jointly indictofl for an assault and battery, and two of 

I. gmtfvrd T. JfieU«f . 2. CarHek t. Fiefetry. S. SmtUk r, Wldtlmg. 



802 iioFFTT V. Statk [Teim. 

them M» gimoted a aepante trial, the -wife of the other ia a oompetoofe 
witejOBi in tbeir favor, aa her hoshand has no Intereet In the event of 
their 



Lnnonoorr agaizLst W. and J. H. Moffit and James Taylor for 
en assault and batteiy upon one John Grigsbj. Facts neoes- 
(Buuy for an understanding of the case are stated in the ojonion. 

Jamea GampbeU, for the defendants in error. 

Humphreys^ attorney^eneral^ iot the state. 

By Court, Bbbsb, J. The plaintiff in error and one James 
H. Moffity and one James Taylor, were jointly indicted for an 
assault and battery. When the case came on to be tried, the 
plaintiff in eiror made an affidavit, that the wife of J. Taylor, 
the defendant, who had intermarried with him since the finding 
of the bill, could give testimony material for his defense, and, 
therefore, moved the court that the Moffits should be separately 
tried from the said J. Taylor, the husband of the proposed wit- 
ness, which was ordered accordingly, and the two Moffits first 
put upon their trial. The wife of Taylor was then offered as a 
witness, but was on aigument rejected by the court, on the 
ground that she was the wife of a i)ariy, not yet tried, who was 
jointly indicted with those on trial. And whether the witness 
was correctly rejected, is the question before the court. 

It is true the husband and wife are in general incompetent wit- 
nesses, either for or against each other, on the ground, partly of 
policy and partly of identify of interest. It is well settled more- 
OTer, that when the husband is on trial with others, jointly in- 
dicted with him, the wife is not a competent witness to testify on 
behalf of those others, although her testimony may not relate to 
her husband; because, being brought in conflict with witnesses 
who testify as to the guilt of all, the tendency of her testimony, 
under such circumstances, might confer some benefit on her 
husband, the jury being probably unable to weigh the testimony 
properly, according to its just bearing on the different defend- 
ants. It has also been determined, that the wife of a defendant, 
jointly indicted with others for a riot, conspiracy, or other 
offense, in which the guilty participation of some specified 
number is made necessary by law, is not competent to testify on 
behalf of the other defendajits, although tried separately trom 
her husband, because the consequence of their acquittal in such 
case might be to exonerate her husband from the charge: See 1 
Yerg. 431. But the case before us is neither of these. In this 
case, the husband has no direct interest in the event of the suit. 



D^ 1840.] Petty v. Haknum. 303 

nor can the judgment of conyiotion or aoqnittal of Moffit be em- 
•denoe on his trial. He might, therefore, himself, on the sepa- 
rate trial, have been a witness, bat for the technical role 
mentioned in the case of TJie Stale t. Moody ^ Id. 432, ** that 
defendants jointly sued or indicted, can not be witnesses for or 
against each other, until discharged from the suit or prosecu- 
tion» or at least, until after conviction." But the wife is not a 
|Myri7» and, therefore, not within the scope of that technical 
role. She is not to be exdnded on the ground of identify of 
interest with the husband, because, as has been said, he has no 
inteirest. Her admission as a witness does not violate the prin- 
ciplea of public policy, founded on the relation of husband and 
wife, because ahe is not offered as a witness for or against him. 
Upon principle, therefore, the wife may be a witness under the 
circumstances, and in the case stated in the record. But there 
is no want of express authority upon the yeiy point. In the 
case of The OommonweaUh y. Eadamdy 1 Mass. 16, it is decided 
to be a sufficient ground for a separate trial, that the wife of 
one defendant is a material witness of the other. And in the 
case of The State y. John AnOwny^ sen., a new trial was granted 
fay the constitutional court to the defendant, because the wife of 
the other defendant, jointly indicted for murder, but not on 
trial with him, had been offered as a witness on his behalf, and 
rejected by the judge presiding at the trial: 1 McCord, 286. 

The judgment, therefore, in the case before us, will be xe- 
yersed upon the ground stated, and a new trial be granted. 

Tbx nmiciPAL gass was bxvesbxd to wceh AFFBoyAL in P90pU y. 
LtAra, 5 GbL 186, and PwpU ▼. Newberry, 20 Id. 44a 



Pettt V. Haknum. 

[3 HuvPKBKn, loa.] 

Bill AaAixsr two DsniNBANTs Taken fbo GoNnaso ASAnrar On for wiat 

ol his appeannoe, will not estop the other from denying or diBproving 

the aUegatione in the bilL 
Hon GiyxH fob FoacHASB Pbioi or Lakd, Titlk to whkbb Faus, Ib valid 

in the hands of bona fide porohaeen, bat they ean r ecoye r only the 

amount they paid for the note from the maker. 

AfffEAL from the county oourt of Stewart connly. The 
opinion states the case. 

W. A. Cook, for the complainant. 

1. BtcU ▼. M 9$ m $, 



804 Petty t;. Haknuk. [Tena. 

W. K. Turner y for the defendant Diane. 

By Court, Tuiur, J. The complainant pnrohaaed a tiaot of 
land from one William B. Nelson, for which he executed his note 
for the sum of six hundred dollars, due and payable about the 
first day of July, 1829. This note -was assigned by Nelson to 
the defendants, Hannuni and Dnine, before it became due, at a 
discount of one third, or at the rate of sixiy-six and two thirds 
of a cent in the dollar. Nelson had no title to tiie land, and 
complainant has been evicted by the true owners. The defend- 
ants obtained judgment on the note, and this bill is filed to en- 
join its collection. The bill charges, that Hannum and Drane, 
at the time they purchased the note, had full knowledge of the 
failure of the consideration. The bill is taken for confessed 
against Hannum, but Diane answers, and denies explicitly, that, 
at the time of the purchase, either he or his partner had any 
knowledge that the consideration of the note had &iled, or thai 
they even knew what it purported to haye been; he says that 
after the note fell due, complainant was written to upon the 
subject of its payment, and that he wrote a letter in reply, 
which is exhibited, promising to pay and requesting indulgence^ 
which was granted for seyeral months. 

It is yeiy obvious from the letters of complainant to the de- 
fendants, tiiat he, himself, was not aware of the failure of the 
consideration of the note, when it fell due, and there can be but 
litUe pretense for supposing that either Diane or Hannum could 
have acquired the information sooner than himself. Diane de- 
nies it most positively, and there is no proof to the contrary. 
But it is contended, that as Hannum has not answered the bill, 
but permitted it to be taken as confessed, he is thereby fixed 
with notice, it being charged in the bill, that notice to one co- 
partner or joint purchaser, is notice to the other, and that 
Drane is estopped from denying or proving the want of it on 
his part. To sustain this position would be to do Diane great 
injustice. This partnership has long since been dissolved, and 
in distribution of the effects, the note in dispute fell to his 
share; he has no power to compel his former partner to answer; 
where he may be, and whether he has ever had actual notice of 
the filing of the bill, are wholly unknown to the court Under 
these circumstances, we say, to hold that a constructiye admis- 
sion of the &ct, shall estop his co-defendant, Drane, for urging- 
and proving the truth, would be doing him great injustice. 

The question, however, has not been without difficulties; but 
we have the satisfaction of knowing, that it has been settied 



Dec 1840.] Plantebs' Bank v. Whttb. 306 

consonant with what, we belieye, to be jnsidce, by the court of 
errors in the state of New York. In the case of Clcaony, Morris, 
10 Johns. 524, it was held, after a laborious inyestigation, that 
where a bill in chancery is filed against two defendfi^ts, jointly 
interested, and the bill is taken pro confeaso, against one for 
want of appearance^ and the other appears and disproves the 
plaintiff's case, the bill will be dismissed as to both defendants. 
It is tme there was contrariety of opinion among the members of 
the court, but we think the majority were right, and choose to 
follow the case. We therefore dismiss the complainant's bill, 
but will not give a decree for the full amount of the note and 
interest, but only the amount actually paid by the defendants, 
namely, sixty-siz and two thirds cents in the dollar, with inter- 
est thereon from the date of its payment, because we belieye 
that it is only a negotiation of the note in the course of trade for 
that amount, which we have repeatedly held is the only thing which 
will protect an indorser of n^^tiable paper against an equitable 
defense on the part of the maker, and because, we belieye the 
defendants ought not, in good conscience, to ask to be permitted 
to make a speculation out of a note sitaated as this is. 
Decree accordingly. 

BoKA Fma Holdbbb of Notbs, Biohib ov. — Bona fidt holders of notes 
an Qiuiffeoted by fraud of the prior holder and by equities sahsisting 
bstwen prior parties: Pte^umi ▼. SnOkwrn^ 3 Am. Deo. 206; 8^mM ▼. 
L^^ 26 Id. 156; Brtuh ▼. iS!eri6fier, 29 Id. 303; Bidgway v. Farmen^ 
Bank, 14 Id. 681; Coddingtan v. Bay, 11 Id. 342; as to the rights of a bona 
JSde holder of a note made on Sunday, see note to Coleman v. HeTiderson, 12 
Id. 202; and for the efiiBot of a note given on a oonsideiation, see Jone$ ▼. 8o^ 
vier^ 13 Id. 218» and note. As to who is to be deemed a honafide holder, sea 
Depmm ▼• WaddmaUm^ cuKe, 216, and oases dted in the note thorstew 



Plaiitebs' Bank v. Wwam. 

[2 HuMPBisn, 113.] 

Voim OF Pboxist wn.L Bind Represemtatiyes of a deoeased indorser, 
though the notsse was sent to the indorser, where the notice was ad- 
dressed to the indorser's late residence, which was a different town, and 
the notary knew nothing of his death. 

AfffEAL from the drcuit court of Williamaon ooanly. Tht 
opinion states the case. 

Jlexander, for the plaintiff in error. 

A. Biffing, for the defendant in error. 

Am. Dso. Vol. XXXVl— 20 



806 Plantebs' Bank v. White. [TeniL 

Bj Court, Obeen, J. The intestate of the plaintiff in error, 
Abram M. WMte, was the first indorser on a note for two thou- 
sand one hundred dollars, drawn by Moses P. White, and pay- 
able at the Planters' bank the eleyenth to the fourteenth of July, 
1839, and dated the eleventh of March preceding. A. M. White 
died the twenty-second of May, 1839, and fkt the June term fol- 
lowing, of the Williamson county court, the plaiatiff in error was 
qualified as his administratrix. The note was protested for non- 
payment, and notice thereof, addressed to A. M. White, at 
Franklin, his late residence, was deposited in the poei-ofBce at 
Nashyille in due time. The notary public, who gaye the notice, 
knew nothing of the death of White at the time the note fell 
due, nor is there any eyidence that any of the directors of the 
bank knew this fact. The only question in the case is, whether 
the notice addressed to the indorser, after his death, is sufficient 
to fix his representatiye. There is no doubt but that notice 
should be giyen the executor or administrator of a party who is 
dead: Chit, on Bills, 629. But if there be no executor or ad- 
ministrator, notice sent to the residence of the deceased party's 
fionily is sufficient: Chit. 529, note E; and if there be an exec- 
utor or administrator, but their existence be not known to the 
holder, notice addressed to the indorser, at the residence of his 
family, is sufficient: 17 Johns. 25-27.^ 

The executor or administrator, haying possession of the papers 
of the deceased indorser, and interested to know the state of his 
affiedrs, would take letters addressed to him out of the poet-office, 
and thus, at least, for some months after his death, be as likely 
to obtain information communicated under his address, as 
though it had been addressed to the administrktor himcftlf. 
And when we consider the impossibility, that knowledge of the 
qualification of an administrator should exist at a great distance 
from the residence of the parties for seyeral months afterwards, 
it would be absurd to require thatnotioe should be addressed to 
him, whether this knowledge existed or not. To do so, would 
be to cripple the circulation of commercial paper, without con* 
ferring any benefit upon the estate of the indorser. 

In tiiis case the jury haye found, under a proper charge of the 
court, that the holder had no knowledge of the qualification of 
the administrator. Let the judgment be affirmed. 



KoncB IN Casb of Indobsbb's Dkath.—!! an indoraer be dead at the ma- 
taxity of a note, and executors or administrators, known te tho holder, have 

1. jrcrdUMti' Bcnk ▼. Birdk; 8 Am. Dto. 897. 



Dec 1840.] BxTSSELL v. Ptlakd. 807 

been appointed, notice of non-payment most be giyen them, as fully as if the 
indoner were alive. Bnt where, in ignoranoe of the indoner'e death, notice 
ie sent, rafficient to charge him were he alive, each notice will be good ae 
against hia executors or administrators: Merehant^ Bank t. Birch, 8 Am. Dec 
367. 



RUBSELL V. PlLAIH). 

[3 HiniPBBKTS. 131.] 

Kara QtvKK fob a Bet on ak Elbction is void. 

Appbal from the circuit court of Marshall county. The opi&- 
ion statee the cose. 



and Venable, for the plaintiff in error. 
PiOow, for the defendant in error. 

By Court, Beese, J. This ia an action of debt upon a note, 
made by the plaintiff in error, and payable to the defendant, for 
one thouaand dollars. Two pleas were filed, which in substance, 
state that Bussell and Pyland, preyious to the election for goT- 
emor of the state of Tennessee in the year 1839, being them- 
flelTcs electors in that election, bet and bargained with each 
other, upon the result of the election, the said Bussell, the sum 
of one thousand dollars, that Newton Cannon would be elected 
goTcmor, and the said Pyland the sum of five hundred dollars, 
that James E. Polk would be elected: and that said note was 
giTon in consequence of said bet, and as a securiiy for its 
payment, if the same should be lost. On the trial, two wit- 
nesses ])roved, that they heard Pyland admit that the note sued 
on had been bet on the election. Another witness, William S. 
Anderson, proved that on the day of the election, for goyemor, 
in August, 1839, the plaintiff and defendant came to him about 
twelve o'clock, and placed in his hands the note sued upon, and 
a note on one Cotley, for five hundred dollars, and told him if 
Polk was elected f^ovemor, that witness was to hand the notes 
over to Pyland, but that if Cannon was elected governor, to 
give them to Bussell. He proved also, that they were electors 
in that election. 

The bill of exceptions states, that the charge was satisfactory; 
A verdict was f otmd for the plaintiff, which the court on motion 
refused to set aside. As the evidence was all on one side, and 
folly established the truth, in substance, of the pleas, we are 
unable to perceive the ground on which the verdict was per- 
mitted to stand. If it be said in such cases, the parties are tn pari 



308 BnssELL v. Pyland. [Tena 

delicto, then the defendant, who seeks to set aside a security vcid 
on grounds of public policy, and to resist an illegal demand, Is 
in the better condition of the two. In the case of Allen v. Heam, 
1 T. B. 66, a wager between voters, with respect to a member of 
parliament, laid before the poll began, was decided to be illegal, 
on the grounds, that it was corrupt and against the fundamental 
principles of the British constitution, that it was a gaming con- 
tract not to be encouraged, and of dangerous tendency. And 
Judge Van Ness, in the case of Buren y. Etcher, 4 Johns. 435,^ 
refeiring to the above case, very properly observes, ** that, if 
for such reasons, a bet of this description was considered to be 
void in England, how much is their force increased, when 
applied to an analogous case in our country, in which the very 
existence of every department of the government depends upon 
the free and unbiased exercise of the elective franchise." 

We are not left here, however, as in New York, in the case 
last referred to, and in the case of Btisi v. OaU, 9 Oow. 169 [18 
Am. Dec. 497], to general reasonings of a moral and political 
character, nor can we, as they, be embanassed by such ques- 
tions, as whether the wager took place before or after the elec- 
tion; whether those who wagered were electors or not, or 
whether they had voted or not. Because our legislature, in 
1828, with a wise and prudent forecast, and with an elevation 
and purity of political monds, worthy of all praise, cut off by 
the roots, and at one blow, all such distinctions when they de- 
clared (c. 23, sec. 2) , ' ' that any person or persons who shall make 
any bet or wager of money, or other valuable thing, upon any 
election in this state, shall be guilty of a misdemeanor, and 
upon conviction thereof, on indictment or presentment, shall 
pay a fine,'' etc. Here we see a bet, or wager upon an election, 
is placed upon the footing of actual gaming in other cases. 
The legislature justly viewed it as a great evil. It may lead to 
bribeiy and corruption; but short of that, how revolting it is to 
witness the mean, sordid, and mercenaiy motives of the gambler 
mingling themselves in the exercise of the elective franchise, 
which should be entirely guided and controUed by a liberal and 
enlightened i>atriotism. The note then, in this case, was illegal 
and void by the principles of conmion law itself, and the taking 
and giving it upon a wager, on an election, an indictable offense 
by the statute. Why, then, should not the verdict be set aside 
in this court? There is no question of pieponderancy in the 
proof, no weighing of the testimony, no intendment in &vor of 

1. JBlNM T. MOtttf 4 An. D60. SM. 



Dec. 1840.] Muse v. Donelson. 309 

the verdici. There is nothing to sustain the yerdicty nothing 
upon which it can stand, and it must, therefore, be set aside, 
and a new trial granted. 

KoTB lOB QAXiiro Ck>NBn>BBATiON: See Jones ▼. Sevier, 18 Am. Deo. 218. 
For a geoenl diaoiunoii of the mibjeot of Kuning, see note to State ▼. Smithf 
S8 III 182. 



MUBE V. DONELSON. 

[2 BUMfSBSTB, 166.] 

DnsoLinnov PASTNsa can not Bind Fibm by an aeknowledgment 
ai a debt, whetiier the statute of limitations has operated to bar it or not. 

B. ABB J. MoGbbgob and Donelson were partners in business.; 
The partnership expired in 1834. J. McGregor died and B. 
McGregor was intrusted with the liquidation of the a&irs of 
the firm. The remaining facts appear from the opinion. 

Beady 9 for the plaintiff in error. 

Keeble, contra. 

By Court, Gbben, J. This suit was brought before a justice 
of ihe peace the fifteenth of November, 1839, upon a promis- 
sory note executed by the firm of B. McGregor & Co., dated 
the eleventh of April, 1832. The partnership of B. McGregor 
& Co. was created in 1829 and expired by limitation in 1884. 
The justice gave judgment for the plaintiff, and the defendant 
Donelson, alone, appealed to the circuit court. In the circuit 
court, the defendant relied on the statute of limitations, and the 
plaintiff proved, that in 1837, B. McGregor, who was the active 
member of the firm of B. McGregor & Co., acknowledged said 
note to be just, and promised the plaintiff to pay the same. 

The court charged the jury that ''after a partnership had 
ceased one partner could not make an acknowledgment of a 
debt and a promise to pay the same, as detailed in the evidence, 
which would be obligatory on the other members of the firm so 
as to exclude the statute of limitations. That if such acknowl- 
edgment and promise were made, either before or after the stat- 
ute had performed its office, the effect would be the same. 
That such acknowledgment and promise would not prevent the 
statute from running in favor of the other partners, although 
the debt might not be barred at the time the acknowledgment and 
promise were made.'' This charge is correct in all respects. 
That the acknowledgment and promise of the partner, mad« 



310 Muse v. Donelson. [TemL 

after the diasolntion of the partnership, ^nll not take a case oat 
of the statute of limitations, was decided by this court in the 
case of Bdote y. Wynne^ 7 Terg. 841;* because, say the court,. 
** after a dissolution of a partnership, no partner can craate a 
cause of action against the other partners, except by a new au- 
thority communicated to him for th/it purpose. When the statute 
of limitations has once run against a debt, the cause of action 
against the partnership is gone. The acknowledgment, if it 
is to operate at all, is to create a new cause of action." The 
case of JSeloto y. TFynne is in accordance with what had been the 
settled doctrine of this court in regard to the statute of limita- 
tions preyious to that decision. It was only the application of 
estabUshed principles to the particular case of an acknowledg- 
ment by a partner after a dissolution. In the case of Evana y. 
Duberry, 1 Marsh. 189, the court of api^eals of Kentucky de- 
cided that evidence of the acknowledgment of one partner of the 
existence of a debt made after the dissolution, ^^ras inadmissible 
against another partner. In the case of BeU y. Ibrrison, 1 Pet. 
861, 876, the supreme court of the United States decided, that 
the acknowledgment of one partner after the dissolution, would 
not operate to take a case out of the statute of limitations as to 
other partners. 

The opinion of the courtin this case, deliyered by Judge Story^ 
exhausts the subject and states the principles upon whidi it rests 
with great deamess and force. These principles and yiews were 
recognized and adopted by this court in the case of Bdole y. 
Wynne, With that decision we are entirely satisfied, and reaffirm 
its principles. But in this case, the counsel for the plaintiff in 
error takes a distinction between an acknowledgment made after 
the bar of the statute had been formed and one made before the 
expiration of the time to form the bar. This distinction can 
not exist in principle. In BeU y. Morrison the court say, '* The 
acknowledgment, if it operate at all, is to create a new cause of 
action." But in the commencement of the same paragraph,, 
page 878, they say, that ** after the dissolution of a partner- 
ship, no person can create a cause of action against the other 
partners, except by a new authority communicated to him for 
that puipose." If, then, he can create no new cause of action; 
and if the acknowledgment, to haye any efficacy, does create 
such cause of action, it follows that whether it is made before 
or after the time limited in the statute has expired, can make no 
difference: Gow on Part. 810. 

Let the judgment be affirmed. 

1 TT«m.n4. 



Dec. 1840.] OiTTHBiB v. Owen. 311 

Powm or Pabxhsb aftkr Dissolution or thb Fmic. — Am m general 
role A partner can not bind hia oopartnera after the diaaoliition of the firmi 
BooUa T Welffard, 6 Am. Deo. 510; Latidng ▼. OcUne, 3 Id. 422; Nott ▼. 
Doumhig, 26 Id. 401; WtUon ▼. Torbert, 21 Id. 632; Barringer ▼. Sneed^ 20 
Id. 74; WkiU ▼. Union ln$. Co., 9 Id. 726. Though if notice of the disaola- 
tion has not been given, the acta of one will bind the others: Price v. Tow* 
aey. 14 Id. SI; Oravea v. Merry, 16 Id. 471; and it has been held that the 
acknowledgment of a debt by one |Murtner after the dissolation, will prevent 
(he operation of the statnte of limitations as to the others: MeliUire v. 
Oliver, 11 Id. 760; Oreenleqf v. QtUncy, 28 Id. 145; Austin v. Boiiwick, 25 
Id. 42; thongh the contrary was held in Levy v. Cadet, 17 Id. 650; and in 
Wileon v. Torbert, 21 Id. 632, it was held that one partner after the diasoln- 
tion of the firm can not, without express authority, create or revive a debl 
against his lAte partners. 



GXTTHKEB V. OWES. 

[2 HuMPHRBxa, 90a.] 

UrazaoDTSD Whl, how rAB Valid. — ^Where a will ii finished with the 
sBception of the attestation daose and the clause appdnting an execator» 
and the dranghtsman leaves and does not retnm till the next day, when 
the testator was mentally incapable of finiflhing it, and fills in these 
daoses himself, it will be admitted to probate as far as the personalty is 
concerned, it comprising within its scope all the objects of the testator's 
bonnty, and the instmment showing that nothing in the nature of a de> 
duction from or charge upon the bequests would have been added. 

Whibb TiioAorEs abk to bb Madb raoM thb Rbal A2n> Pbbsonal Pbop^ 
BBTT in such a case, they will be made from the personalty as far as pos* 
dble, though they will fail as to the realty. 

ImntucTioN THAT Pbbsonaltt is Liablb BEfOBB BsALTT in payment of 
a charge in such a case does not tend to mislead the jury, and forms no 
ground for complaint. 

Appkal from the droait oonrt of Williamson oouaty. The 
opinion states the case. 

Jlexander and Campbell, for the plaintifft in error, 

MdrahaU, IMer, and Ewing, contra. 

By Court, Bsbsb, J. Samuel Owen, in his last illness, and 
the day before his death, caused one of his neighbors to be sent 
for, with the purpose of having his last will prepared. He had 
for some years been unable to speak, but could readily commu- 
nicate his thoughts by signs to the family, and also to them, and 
to others, by indicating words in a dictionary. He was in the 
full possession of his mental faculties. To the draughtsman of 
the paper propounded as his will, he indicated his wishes in tho 
manner above stated, by pointing to the leading and important 
words in a dictionary. When tiie clauses were written in this 



312 OUTHBIE V. Owen. [Tenn. 

manner, they were separately read to him, and he assented to 
each, and when thej were all written he read the entire instra- 
xnent as &r as prepared, himself, and assented to the whole, and 
this comprised the entire instrument propounded as his will, ex- 
cept the appointment of an ezeoator, and the attestation danse. 
The process of preparing the inltroment was tedious and ex- 
hausting, the draughtsman not in good health, and at ten or 
eleven o'clock at night, having completed the instroment to the 
point stated, the further progress in it was suspended. Busi- 
ness required the draughtsman to leave early in the morning, 
but he promised the deceased to return in the evening to finish 
the matter; he did then return, but Samuel Owen was then out 
of his mind, and incapable of transacting business, and shortly 
after died. In the course of drawing up the i>aper, the draughts- 
man had learned from the deceased, that he wished James 0. 
Owen to be his executor, and he, therefore, added the clause 
appointing him to that office, and the attestation clause. The 
paper propounded as the will of Samuel Owen, is as follows: 

'* I, Samuel Owen, do make and publish this my last will and 
testament, hereby revoking and making void all other wills by 
me at any time made. First. I direct that my just debts be paid, 
as soon after my death as possible, out of any moneys I may die 
possessed of, or may come into the hands of my executor. Sec- 
ondly. I give and bequeath to my brother, James 0. Owen, my 
boy Stephen, my carriage, my gold watch, my young gray horse 
by Sir William, also one thousand dollars of turnpike stock, to 
wit, tweniy shares in the Harpeth turnpike. Thirdly. I give 
and bequeath to my niece, Narcissa Bobert Owen, my bed, my 
sorrel filly by Pacific, also one thousand dollars of turnpike stock, 
to wit, twenty shares in the Harpeth turnpike. It is also my will, 
that James 0. Owen hold the above named items as agent for 
the above named Narcissa B. Owen, and use it as agent for her 
benefit, and in the event of her decease, without issue, it is my 
will that the said James C. Owen shall have said properly. 
Fourthly. I give to my brother, James C. Owen, for the bene- 
fit of my three nephews, Burnett II. Beasley, Charles C. Beasley, 
and Fdix O. Beasley, and I hereby constitute and appoint him 
agent, to hold, to use, and disburse for their (the said Beasleys') 
benefit, the following items, to wit, one thousand dollars in 
turnpike stock, to wit, twenty shares in the Harpeth turnpike. 
Fifthly. I will and bequeath my executor sell my land lying on 
Mill creek, also my negro man Tom, also my land in Warren 
and Cannon counties, to wit, my interest in these lands. I will 



Dec. 1840.] OuTHBiE u Owen. 313 

to be sold also, all other property, of whataoerer description, of 
which I may die possessed of, and the proceeds of which, to- 
gether with the moneys in my possession at the time of my de- 
cease, also the money due to me by bonds or accounts, when col- 
lected to be appropriated as above bequeathed. If any surplus 
should remain in the hands of my executor — ^my desire is, that 
Tom should select ^iTnaplf a home, and be sold privately for a 
moderate price. Sixthly. I leave in the hands of my executor, 
of the money due me and to be raised as above directed, one 
hundred dollars for erecting tombs, and fifty dollars for fenc- 
ing graveyard." (I do hereby nominate and appoint James 0. 
Owen my executor. In testimony whereof, I do, to this my last 
will, set my hand and seal, tiiis twentieth October, 1838. 
Signed, sealed, and published in our presence, and we have sub- 
scribed our names hereto, this twentieth day of October, 1888. 
Ferdinand Moore, Everett Owen.) 

The above paper, except as to the latter portion of it, in- 
closed in brackets, containing the appointment of an executor, 
and an attestation clause, and except, also, as to the real estate, 
was found by the jury in the circuit court, to be the last will 
and testament of Samuel Owen. Guthrie and wife, by their 
counsel, moved for a new trial, which being refused, they have 
prosecuted their writ of error to this court. 

The correctness of the charge of the court, set forth in the 
record, has been but slightiy questioned in the argument here, 
except in one particidar, which we shall hereafter indicate. The 
argument of counsel has turned mainly upon the facts and cir- 
cumstances attending the drawing up of the paper propounded, 
upon the state in which it was left, and the bequests contained 
in it. The instrument is unexecuted, and so far merely as relates 
to the appointment of an executor, and a clause of attestation, 
it is imperfect. It has not been controverted, that a pax>er un- 
executed, and, in some instances, an imperfect paper may be set 
up as a testament, where the want of execution, or its being im- 
perfect has been produced, not by abandonment, or change of 
purpose, on the part of testator, but by the act of God, that 
is, by extreme illness, mental alienation, sudden death, etc., if 
the paper, as far as it goes, express the will of the deceased, 
continuing to the time of his death, and if upon the face of the 
instrument it can be seen that the legacies given to the objects 
of testator's bounly, and the benefits conferred, would not, if the 
will had been finished, have been burdened with charges in favor 
of others: in short, if it express his whole will as far as it goes. 



314 OuTHBix V. Owen. [Tenn, 

The i>aper before us, was prepared slowly and with great de> 
liberation, and under circumstances which nuule it more than 
ordinarily the work of the testator himself. It was nearly 
finished; it probably comprised in its scope, all the objects of 
testator's bounty, and the frame of the instrument, the nature 
of the bequests, and the powers conferred in order to raise the 
money to pay the legacies, make it manifest, that if anything- 
had been added, it would not have been in the nature of a de* 
duction from the legacies, or a charge or burden upon them. 
The manner in which the will was made, the deliberation and 
sanction of it, as a whole, the circumstances which suspended 
its progress to a full completion, and the brief interval which 
elapsed before testator became unable to complete it, repel the 
notion of any change of purpose, and warranted the jury in ar- 
riving at the conclusion, that it contained his will to ^e time of 
his death. We think this instrument is sustained by the prin- 
ciples so distinctly announced by Sir John Nichol, in the case 
of MorUefiore v. Mantefiore^ 2 Eng. Ecc. 342, a case on which 
the circuit court in its charge to the jury, and the counsel on 
both sides, seem to have much relied. The learned and able 
judge in that case, observes, " that the legal principles, as to 
testamentary papers of every description, vary much as to the 
stage of maturity, at which those papers have arrived. The 
presumption of law, indeed, is against every testamentary paper 
not actually executed by the testator. But if the paper be com- 
plete in all other respects, that presumption is slight and feeble, 
and one comparatively easily repelled. But where a paper is 
unfinished, as well as unexecuted (especially where it is just be- 
gun, and contains only a few clauses or bequests), not only 
must its being unfinished and unexecuted be accounted for, but 
it must also be proved (for the court will not presume it) to ex- 
press the testator's intentions, in order to rex>el the legal pre- 
sumption against its validity. It must be clearly made to ap- 
pear, upon a just view of all the facts and circimistances of the 
case, that the deceased had come to a final resolution respect- 
ing it as far as it goes, so that, by establishing it, even in such 
its imperfect state, the court will give effect to, and not thwart 
or defeat, the testator's real wishes and intentions, in respect to 
the property which it purports to bequeath, in order to entitle 
such a paper to probate, in any case, in my opinion." 

In the many cases referred to, or existing on this subject, 
there is, perhaps, none which contains language or announces a 
principle subjecting papers of this description to a severer 



Dec 1840.] OuTHBiE v. Owen. 315 

testy when paropouaded for probate. Tet, the ease before ua, is 
so made out, we think, as to abide that test. The chief argu- 
ment, however, against the validity of the instmment upon the 
record, offered to us here, attempts to seek its support in the 
principle stated, that the court must see to it, that in establish- 
ing such unfinished paper, they give effect to, not thwart and 
defeat, the real wishes and purposes of the deceased. For it is 
said, his will was, that his land should be sold; and jou can 
not, therefore, give effect to the entire wish of the testator. But 
this is a mistaken view of the matter. The real wishes and 
purposes of the deceased, referred to by Sir John Nichol, relate 
to the objects of testator's bounty, who, if the will had been 
finished, might haviB been brought forward to participate in some 
measure in the bequests given to those named. If the real as 
well as the personal estate be given to the same objects of the 
testator's bounty, or the real estate be directed to be sold to pay 
I^gacieB to them, and the paper is not so finished and so executed 
as to pass real estate, you can not be said to thwart and defeat 
the real wishes of the testator, if you give to the objects of his 
bounty, all you can, the personal estate. To refuse to do that, 
because you can not give effect to his entire wishes in their be- 
half, nor make his bounty so ample, as he intended, would be 
to thwart and defeat, not to give effect to the sense and mean- 
ing of Sir John Nichol. If, indeed, in an unexecuted instru- 
ment, personal property be given to A., and real to B., and 
from sudden death, the testator can not finish the instrument so 
that the land can not pass, it might be doubtful, whether in 
such a case, if the will were set up, as to the personal property, 
the real wishes of the testator, if he could have foreseen such a 
state of things, would not be defeated thereby. But here the 
land is to be sold to pay the money legacies, for it is in proof, 
that the testator had not turnpike stock, and, therefore, 
meant the money legacies to be so invested. What the court 
says, in its charge to the jury on the subject of the course of a 
court of chancery, where a charge is made on both real and per- 
sonal property, that the latter must be first sold and exhausted 
before the former can be called in aid, is admitted by the coun- 
sel of plaintiffs to be correct, but is alleged to have been mis- 
placed and irrelevant, and calculated to mislead the jury. We 
do not perceive the ground on which the plaintiffiB in error can 
complain of that part of the charge, nor how, if it were held to 
be irrelevant, it could have misled the jury. 
Upon the whole, we think, there is nothing which on grounds 



816 OuTHBiE V. Owen. [Tenn. 

of law or fftot, ought to disturb the Tardiotand judgment which 
have been rendered in the case, and we, therefore, affirm them« 



Unxxbodtsd Will, how vab Valdx— ^7 the ecolesiafltioal law, no par> 
tionlftr form was required in drawing a will of personalty. Such a will writ- 
ten in the testator's own hand, thoagh it had neither his name nor seal 
attached, was good, provided soffioient proof oould be had that it was his 
handwriting; and thongh the writing was in another num*8 hand, and never 
signed by the testator, yet if proved to be aooording to his instructions and 
approved by him, it was held a good testamentary disposition of personal es- 
tate: 2 BL Com., sec. 602. This was not the rule in regard to realty. By 
the oommon law, no lands or tenements were devisable by any last will or 
testament, the true reason seeming to be from the nature of the feudal tenure 
and the relation that was established between the landlord and tenant; the 
tenant being allowed by no act to dispose of the feud so as to defeat the lord 
of the advantage of his seignory, and hence he oould not devise it even to his 
own heir. The statute of 32 Henry VlUL, c. 1, usually called the statute of 
wills, enacted that persons having manors or lands should have the power of 
disposing of such by will, and the statute of frauds, 529 CSsr. IL, c. 3, sec. 5, 
further provided that all devises and bequests of lands or tenements devisable 
by the statute of wills, should be in writing and signed by the party devising 
the same, or some other person in his presence, and by his express direction, 
and should be attested and subecribed in the presence of said devisee by three 
or four credible witnesses, or else should be utterly void and of no effect: 5 
Bao. Abr., tit. Wills and Testaments, D, 602. The statute of Charles, being 
explicit in its requirements, has given rise to little controversy. The princi- 
pal questions have involved the construction of papers bequeathing personal 
property. 

Where a paper is in the handwriting of the testator, without date or signa- 
ture, it is valid if it is shown that the testator intended to have it operate in 
its present form: Ready, PkUUpB, 2 Phillim. 122; FritweU v. JTootv, 3Id. 135; 
so where a will had been copied and the testator had delayed its execution for 
two months, it wHl be admitted to probate where it is shown that it had re- 
received the testator's approval, and that the delay had merely proceeded 
from habits of procrastination, the testator having at last died suddenly from 
apoplexy: Warburton v. Burrowa^ I Add. 383. So a will made by interxY^- 
atories, though not executed, is valid; death having prevented the execution: 
Chten V. SHpworth, 1 Phillim. 63. And a codicil unsigned and having an 
attestation clause unattested by witnesses, was probated, the testator having 
intended the codicil to operate, but being prevented from signing by bodily 
weakness: Thonuu v. WaU, 3 Id. 23. And a will with a testimonium clause, 
without a signature and having a blank to the date, was admitted, the inten- 
tion having continued: In re Francis Lamb, 4 Notes of Gases, 561 ; and if the in- 
tention of the testator is clear, and he is prevented from executing the will on 
account of duress, it is a valid testamentary disposition: L'fftdUe v. Wood^ 2 
Lee's Eoc Gas. 22; or where the execution is prevented by a sudden incapa- 
city, superinduced by the violent conduct of his wife, who was interested in 
thwarting his intent: Laimkin v. Babb, 1 Id. 1. Supervening insanity is suffi* 
cient to account for the non-execution of a paper written shortly before and 
consistent with the intent and affections of the deceased: Hoby v. Hclby, 1 
Hagg. Ecc. 146; and generally where the execution is prevented by an act of 
Ckxl, the instrument will be admitted to probate: lytoU v. Rhodes, 1 PhUlim. 
12; In re James Taylor, 1 Hagg. Eoc 641; MaaUmum v. Maberly, 2 Id. 235. 



Dec. 1840.] GuTHBiE v. Owen. 317 

Inatmctions for a wiD have Bometimes been admitted to probate; as where 
the instmctioiis were in oonformity with the testator's intentions, and death 
prevented a more formal ezecntion: CcuUe v. Torre, 2 Moo. P. C. 133; 
Ocodman y. Ooodman, 2 Lee's Eoc 100; In re BathgaU, 1 Hagg. Ecc. 67; and 
where instmctions for a oodicil weregiven to a third person who was to transmit 
them to a solicitor, they were held valid, the solicitor intending to have the 
codicil read over and ezecnted, and this being prevented on account of the in- 
capacity of the deceased: Jjeurie v. Lewis, 3 Phillim. 109. And a will drawn 
according to instmctions, which was never seen or read by the testator, is 
valid if the testator was prevented from executing it by an act of God, and 
the instmctions expressed his intent: Sikes v. Snarth, 2 Id. 351; In re Baih- 
goU, 1 Hagg. Ecc. 67; and instmctions neither signed by the testator nor read 
over to him, bnt clearly proved to have been in conformity with his inten- 
tions, were admitted to probate: Robinaon v. Chamberlayne, 2 Lee's Ecc. 129. 
A party being taken ill went to Tnnbridge Wells for the purpose of obtaining 
the ascdstance of his solicitor in making his will; he told the solicitor that he 
had the whole of the will in his own mind and that he wanted him to write it 
down from his own month. He dictated a portion of his intentions, and seve- 
ral days after dictated the remainder; the whole was contained on three pieoet 
of paper. They were read to him and approved; the solicitor having had a 
copy of them made, repaired to the deceased's house next morning to have it 
ezecnted, bnt the testator was rendered incapable by a fit, from the effects of 
idiich he died; the instructions were held a good will: ffuntvngUm v. ffwUmg' 
ten, 2 Fhillim. 213. A testator made a will to please his wife; then a second 
(unknown to the wife) to please himself; some time after he went to his attor- 
ney and gave him instmctions for a third will, telling him at the same time 
that he was that day going to make a codicil to (and so in effect revive) the 
first, terming It his wife's will, but would come the next day, and execute the 
third, which he meant to be his will, expressly to defeat the first. He re- 
vived the^fiist accordingly, bnt died without executing the third. The court 
held that upon the evidence, he was prevented by an act of Qod, and admitted 
a draft will which had been prepared from instructions so given by the testa- 
tor: AUen V. Manning, 2 Add. 490. But the presumption of the law is against 
the validity of a testametary paper not completed: Wood v. Medley, 1 Hagg. 
Ecc 645; Beay v. Ctnoeher, 2 Id. 249; BeaUy v. BeaUy, I Add. 154; jfonte' 
Jlore V. Mont^ore, 2 Id. 354. The evidence required to establiFi. such a 
paper varies as it approaches completion. Thus if a writing is in the testa- 
tor's hand, and there is an attestation clause unattested by witnesses, th« 
court is bound to presume that the testator intended to do something furthei 
in relation to it: JIarrie v. Bedford, 2 Phillim. 177; Stewart v. Stewart, 2 Moo. 
P. G. 193; but this presumption is slight and easily overcome: BeaUy v. 
Beatty, 1 Add. 154; Doher v. Ooff, 2 Id. 42, But where the instrument 
offeied for probate was a pencil memorandum written by, and in the pocket- 
book of the person who produced it, but sworn to have been written down 
from the instmctions of the deceased, at a single interview, three days before 
his sudden death, by apoplexy, not signed, nor ever seen or afterwards re- 
ferred to by the deceased, nor led up to or confirmed by the conduct, declara- 
tions, or affections, but resting solely on the evidence of the writer, the court 
■aid the presumption against such an . instrument was very strong, and that 
the party setting it up must show first that the intention of the testator to 
have the instrument operate was fixed as i final; and second, that he was pre- 
vented from completing it by the act of ' >od. These things not having been 
shown, the instrument was rejected: Theaketon v. Mareon, 4 Hagg. Ecc. 290. 
In any case the final intention of the testator must be shown to be contained 



318 OuTHBiF V. Owen. [TeniL 

in the inBtnuiMiit or it will not be admitted: BeaUy ▼. BeaUjft 1 Add. 154; 
Iioo9e y. Mauladak, Id. 129; WaOxr y. Walker, I Meriy. 603; /it re i&>Mii- 
#011, 1 Hagg. Ecc. 643; /n re ffeme^ Id. 222; JBrag^jw y. Dyer, 3 Id. 207; SU- 
<kn y. Eledent 4 Id. 183; ti^tfloio y. Awme, Id. 192; Theakrttm y. ifarMm» 
Id. 290; Abboi v. Peters, Id. 380. 

In the United States, the earlier caiee followed the ecolenaetioal law. 
Thna no partionlar form was required in a will of personalty: Jonea y. Kea, 
4 Dcy. L. 301; McLean y. MeLean^ 6 Homph. 462. It was not neoessary that 
it should be witnessed, or written, or signed by the testator; it was sofficient 
if drawn np according to his directions and approved by him: Mermm y. 
BeaUf 7 Qa. 438; McLean y. McLean^ G Humph. 462. An inatrnment which was 
proved to contain the wishes of the testator as to the disposal of his proper^, 
but which he was prevented from signing, attesting, or publishing by a sud- 
den visitation of Ood, ii valid as to the personalfy, though some short time 
passed between the time when it was in his power to execute it and the in- 
capacity, if the delay was from oonvenienoe and not from hesitancy: CfaMu 
v. Chukine, 3 Ired. L. 168. A testamentary paper was found in an iron diest 
among the valuable papers of a deoeaaed person; it was without aignatora, 
jmd had an attestation danse without witnesses; it was written by the de> 
oessed with his name in the beginning, in a fair hand, engrossed on convey* 
andng paper with a seal attached thereto, and evinced delibeFatiaD and foi«- 
cight in its provisions, disposing of a large amount of real and personal 
property. The executors named in the testamentary paper claimed probate 
thereof, which was allowed by the surrt^te as to the personalty. The chan- 
oellor reversed the decision of the surrogate, but on an appeal from chan- 
cery to the court of errors, the decision of the surrogate was affirmed: WatU 
v. PMie Adnunietrator, 4 Wend. 168; and wills of both real and petsonal 
property, though not executed formally enough to pass the real estate, may 
•till be valid as to the personalty: NmU v. NtOt, 1 Freem. Ch. 128; JBxparie 
ffenrjft 24 Ala. 638; Deveemon v. Deseemow, 43 Md. 336; and where a codicil 
in the handwriting of a testator reciting the changes and alteratioos he in- 
tended to make in it as to the personal property was found with lus will, it 
was held a good and valid testamentary disposition, though not signed nor 
Attested: Broum v. TUden^ 6 Har. 9t J. 871; and a paper, intended merely as 
instructions, or a memorandum to enable the scrivener to prepare the will, 
will be admitted to probate where the more formal part is left unfinished by 
an act of Ood: Boqfter v. Bogere, Gill, 44. So instructions not good 
as a written will have been held valid as a nuncupative will: Poriisofi v. 
ParlMon^ 12 Smed. 9t M. 672; PAcBfte v. Boggeee, 1 Qxatt 129; MoBon v. Jhm- 
fiuwi, 1 Mnnf. 466. And that a paper writings propounded as a will, has 
upon it an attesting clause unwitnessed, will not prevent its being establiahed 
as a holographic will: ffiU v. Bdl, Phil L. (N. C.) 122; nor is it any ob- 
jection to the probate of a will as a holograph that it has but one subscribing 
witness, and was intended by the deceased to be proved by subscribing wit- 
nesses, his intention being frustrated by the incompetency of the second at- 
testing witness: Broum v. Beaver, 3 Jones, 616; as under the ecclesiastical 
law, the presumption is against every testamentary paper not completed: 
JMerwn v. BeaUf 7 Ga. 348; as where a will contained an attesting clause to 
which there were no signatures: Plater v. Chroomef 8 Md. 134; Jonee v. Kea, 
4 Dev. L. 301; Bx parte Henry, 24 Ala. 638. And the intention of the 
testator must continue: Boqfter v. Bogere^ 9 Gill, 44; Sdden v. Cfoalter, Va. 
Cas. 653; Broum v. Shand, 1 MoCord, 400; PMie Admmittraior v. WatU, 1 
Paige's Ch. 347. 

The decisions that have been oitad were all made when the law drew a 



Dec. 1840.] OtTTHEiE v. Owen. 319 

<d]ttiiiotioii between wills of xeal end wills of penonal pwp e rty . In Bnglencl 
and most of the United States, the distinction has been abolished by statate, 
4Uid the same formality reqoired for wills of personal estate as are leqniied 
for thoee of real property. The statute of 1 Vict, c 26, sec. 89, provides: 
" That no will shall be valid onless it shall be in writing, and executed in 
maimer hereinafter mentioned; that is to say, it shall be signed at the foot or 
end thereof by the testator, or by some other person in his presence and by his 
direction; and snch sigubtare shall be made or acknowledged by the testator 
in the presence of two or more witnesses present at the same time; and each 
witoflssoa shall attest and shall snbscribe the will in the presence of the testa- 
tor, bnt no form of attestation shall be necessary." This statate was subee- 
qoentty modifled by the act of 15 and 16 Vict, a 26, in so far as the place of 
the ajgnatnre was conoemed; which enacted that the signatore shoold be valid 
if " so placed at, or after, or following, or under, or beside, or opposite to the 
end oi the will* that it shall be apparent on the face of the will that the tes- 
tator intended to give effect, by such his signature, to the writing signed as 
hit wiU.** The statutes in the American states require substantially the same 
fotmalities as the act of 1 Vict. The eflfectof these acts has been the same 
in both countries. The courts have held that all the formalities required 
must be complied with; but an exact compliance is not necessary, a substan- 
tial one is sufficient: Torry v. Botben, 16 Barb. 904; Mclknumgh v. LaugkUn, 
20 Id. 238; Peek v. Cofy, 38 Id. 77; Ndmm v. JH^cCfifiri, 8 Barb. Ch. 168. 
Among the papers of the testator two letters, sealed, were found, directed: 
'* For 8. G., my late servant." These letters contained promissory notes for 
« large sum of money; one letter stated that the testator indosed two hun- 
dred pounds as a mark of respect, the other that the inclosed was for her 
long and faithful service. S. Q. applied to the executors for the payment of 
the notes; the court held that an action was not maintainable upon them, as 
they were in laet a leg^y which was informal and void under 1 Vict.: Ckmgh 
V. FhuUm, 7 Bxch. 48. The signature of the testator must be written before 
the witoflssoa sign their names, and if written after, the instrument is not 
duly executed, and is void: Siaten qfOhaHiy v. KeUjf, 67 K. Y. 409. Under 
the Pennsylvania statute, it was decided that a will was valid, though not 
signed, the testator being prevented by his sickness from either signing him- 
self or directing others to sign for him, the will being otherwiM established: 
Shown V. Shawen. 27 Pft. St 486. 

There must be a plain and unequivocal acknowledgment of his signature 
by the testator; without it the instrument is of no effieot. Thus where a 
testator at the time of the alleged execution of his will, in the presence of the 
tttteeting witaesses, placed his finger on hii name subscribed at the end of the 
will and acknowledged that it was his last will and testament^ but there was 
no evidence that he subscribed it in the presence of the attesting witoeases, or 
that he acknowledged in their preeenoe that the subscription was made by 
him or by his direction or in his presence, the instrument was not admitted 
to probate on account of a want of due execution: Chafftit v. BapM ifUs. 
<AMie., 10 Paige's Ch. 85. So where the alleged will was not signed in the 
presence of the witoesses, and when they signed their names, it was so folded 
thai they could not aee whether it was snbecribed by him or not; and the only 
Acknowledgment made was by his eaying, "I declare the within to be my will 
and deed," it was held not a sufficient acknowledgment within the statate, and 
probate of it was refused: Ltieii v. LewU^ UN. Y. 220. Allen, J., at page 
226 of the opinion, said: " It [the iDstniment] must be declared to be his 
last will and testament by some assertion or some dear assent in words or 
signs, and the declaration must be unequivocaL The policy and object of the 



820 QuTHBiE V. Owen. [Teniu 

stfttote require this, and nothing short of thia will prevent tiie mieohief and 
fraud which were designed to be reached by it. It will not snAoe that tfaa 
witnesses haye elsewhere and from other eonroes learned that the doooment 
which they are called to attest ia a will, or that they snspeot or infer from the 
circnmstances and occasion that snch is the character of the paper. That fact 
most in some manner, although no partioalar form of words is required, \» 
declared by the testator in their presence, that they may not only know tnai 
fact, bat that they may know it from him, and that he nnderstands it, and at 
the time of its execotion, which includes pnblioation, designs to give effect vo^ 
it as his will, and to this, among other things, they are reqnired by statate to 
attest." And it is a fatal objection to the validity of a will if one of the wit- 
nesses neither saw the testator sabecribe nor heard him acknowledge his sig- 
nature: RiUher/ord v. nvther/ord, 1 I>enio, 83; KUUek, in the goodt </, 3 8w. 
ft Tr. 678. 

The testator must, in the presence of the witnesses, declare the instrument 
to be his last will and testament. It is not sufficient if he makes such declar- 
ation in the presence of one witness and signs it in the presence of two who 
subscribe as witnesses at Ms request: Seymour v. Van Wyek^ 6 N. T. 120. 
And merely signing the instrument and acknowledging it tcoe her hand and 
seal for the purposes therein mentioned, without its being read to her or any 
declaration being made by her that it was ber will, or by any other person and 
assented to by her, is not sufficient to entitle the instrument to probate: Rem- 
§en V. Brineherhoff, 26 Wend. 325. The mere fact of the deceased's asking 
witnesses to sign their names to a paper will not entitle an instrument to pro- 
bate, when he did not execute the paper in their presence nor acknowledge it 
as his will, and when they subscribed the pi^er they could not see any writ- 
ing: Thomas Peanons^ in the goods qf, 10 Jur. (K. S.) 372; Ilott v. Oenffe, 4 
Moo. P. C. 265. The deceased must have referred to the instrument as hia 
will: Sumtford^ in the goods of, L. B., 1 Per. ft "Dkv. 630. Where a subecrib- 
ing witness to a will testified that she saw the deceased sign his name at th» 
end of the paper; that he said he wanted her to sign her name and she did so 
in his presence, but did not hear him say that it was his last will and testa- 
ment, the instrument ia not a valid will: Trustees qf Auburn 7%eoL Sem, v. 
Ccdhotm, 62 Barb. 381. But the publication may be made in any form of 
communication to the witnesses, whereby the testator makes known to them 
that he intends the instrument to take effect as his will; thus where one of th» 
witnesses in the presence and hearing of the other, whose attendance was by 
the testator's procurement, asked the testator, " Do you request me to sig& 
this as your will as a witness ? " and the testator said " yes," it was suffident 
as a request to both witnesses and as a publication: Ooffin v. Coffin, 23 N. T. 9. 

The Attsstino Witkesses must Sign in thb Prxsenob or thb Tbstatob. 
So where the attesting witnesses retired from the room where the testator 
had signed, and subscribed their names in the adjoining room, and the jury 
found that from one part of the room a party, by inclining himself forward, 
with head out at the door, might have seen the witnesses, but that the testator 
was not in such a situation in the room that he might, by so inclining, have seea 
them, the will was held not duly executed, and probate was refused: Doe <i. 
Wright v. Manifold, I Mau. ft Sel. 294. So where a testatrix was sick in 
bed in one room, and the witnesses to a codicil retired to the next room ta 
sign, the attestation was invalid, though the doors between the rooms were open, 
and the testatrix, by raising herself in bed, could have seen the witnesses sign, 
there being no evidence that she did so raise herself: KiUick, in the goods qf, 
3 Sw. ft Tr. 578; and even where the attesting witnesses signed in the same- 



Dec 1840.] OuTHBiE v, Owen. 321 



toom, an atiestatiofn wm held inTalid, as not being in the testatrix's presenoe, 
where the evidence showed that she lay in bed with the eortains dosed and 
her back to the attesting witnesses, and was utterly unable to turn herself so 
as to draw aside the curtains: Tribe y. Tribe, I Bobt. Eoc 775; though had 
she bean able to tnm and draw aside the curtains, it would have been a suffi- 
cient signing in her presence: Newton ▼. Clarke, 2 Curt. Eoc. 320. To make 
a valid subscription, there must be either the name of the witness or some 
mark intended to represent it; a correction of an error in a previous writing 
of his name, or his acknowledgment of it, is not sufficient. So where a wit- 
ness whose name consisted of four words, the first of which began with an 
F, signed in the presence of the testator, but accidentally left his first initial 
letter uncrossed, so that it stood as if it was a T, and afterwards advised the 
testator that there ought to be two witnesses, and on the same day, in the 
pwc nee of the other witness, after the testator had acknowledged his signa- 
ture in presenoe of bo^ he corrected the mistake, by crossing the T, the 
oonrt held it not to be a valid attestation: Hlndmanh v. Charlton, 8 H. L. 
Gas. 160. The reason of this decision was, that the testator must acknowl- 
edge his signature in the presence of two or more witnesses, whoee signatures 
are to follow the acknowledgment; and that the crossing of the T by the wit* 
seas, though an acknowledgment of his former signature, was yet not suffi- 
cient to satisfy the statute. Where one of the attesting witnesses, by desirs 
of the testator, subscribed her husband's name instead of her own, the 
attestation is invalid: Prjfor v. Prjfor, 29 L. J., pt. 8, p. 116. Nor would an 
act of God do away with the necessity of the attestation; thus, in the case of 
Venom v. Spencer, 2 Bradf . Surr. 10, a testator having determined to modify 
a previous will, the instrument, prepared conformably to his instructions, was 
placed before him for execution; in the presence of two witnesses attending 
at his request, he signed it at the foot, and was seised with death as he was 
in the act of signing in the maigin. The surrogate refused to allow probatt 
of the win, on account of the want of attestation. In the course of his opin • 
ion he said: "To the due execution of a will several ceremonial parts are 
necessary, and one just as necessary as another. There is no will until they 
are all completed. The absence o^ any one ceremony destroys the unity. 
These oeremoniee are acts. The mere intention to have them all performed is 
not sufficient, but the intention must be effectuated in fact. If accident in- 
tervene to prevent their performance, the intention can not be taken in lien 
of performance or instead of the act." 

Oases have arisen where the signature was detached from the rest of the 
will; being either on a dififerent sheets or on another side of the same sheet. 
Thus in Lambert, m the goods qf, 8 Jur. (N. S.) 158, all the body of a will 
was written on one sheet of paper, and the deceased's signature, the attesting 
slanse and the signatures of the attesting witnesses were on a separate piece, 
which was attached to the other by wafers; probate of this instrument was 
refused, the court saying that they did not think the act of 15 and 16 Vict, 
above referred to, authorised the signature of the testator being on a separate 
piece of paper. In West, in the goods qf, 9 Jur. (N. S. ) 1158, and Hammond, in 
the goods qf, 3 Sw. 9t Tr. 90, the facts were similar, and probate of the wills 
was .ilao refused, though in those cases the court based their dedsions on the 
fact chat there was no evidence that the papers were properly executed and 
m the same state at the time of the death as when the testator signed them. 
But in Cfansden, in the goods qf, 2 Id. 362, a will was held valid, though writ 
ten on a piece of parchment and the testator and witnesses signed their 
■ames to a piece of paper previously pasted on the parchment. So where a 
will ended in the middle of a third page of a sheet of foolscap, the lower hall 
▲ic Daa You XZZYX— 21 



822 Johnson t;. State. [Tenn. 

of the page being left bUnk, and the attesting danse and aignatorea being 
written on the top of the fourth page, it was held yalidly ezecated: Hunt ▼. 
Bwnii L. R., 1 Prob. ^ Div. 200. But if the ooart ia aatiafied that the signatarea 
on the anooeeding page were not placed there for the pnrpoae of atteating the 
will, probate will be refoaed: Wilton^ in the goods of^ L. R., 1 Prob. h, Div. 
269. And in Swedland y. SweeUand^ 4 Sw. dt Tr. 6, a decedent aigned hia 
name on five aheeta of a teetamentary paper which oonsiated of aix aheetti; 
the aixth aheet oontaining a teatimoninm and an attestation clanae and the 
namaa of the witneaeea, but not the aignatare of the deoeaaed; the writing 
on the fifth aheet broke off in the middle of a sentence, which waa oontmned 
on the aixth aheet; the court refased to grant probate of the five aheeta aa 
oontaining the last will and teatament of the deoeaaed. 

Hie foregoing caiee ahow conclaaiyely that, to be valid, a will mnat con- 
ftam aubatantially to all the atatatory reqairementa; that anything abort of 
thia, will render it Invalid and absolutely of no effect. 



Johnson v. State. 

[9HuMFBaBn.988.] 

Iir GKAfliiBiHO Ohxldbbk, Parent must be Cabbful not to exoeed tfaa 
bounds of moderation, and inflict cruel and meroileaa pnniahment; if ha 
doea ao, he ia a treapasser. 

What is as Bzcsss or PumsaMXirr, ia a queation of fact for the jury. 

Gbabgb Making What GoNanrnTfls Bzobbs or PuinsHiiBBrT a l^gal oonda- 
aion, instead of a question of fact, is erroneoua. 

Thb opinion states the case. 

By Court, Tuelet, J. The right of parents to chastise their 
refractory and disobedient children, is so necessaiy to the gov- 
emment of families and to the good order of society, that no 
moralist or law-giver has ever thought of interfering with its 
existence, or of calling upon them to account for the manner of 
its exercise upon light or frivolous pretenses. But at the same 
time that the law has created and preserved this right, in its re- 
gard for the safeiy of the child it has prescribed bounds beyond 
which it shall not be carried. In chastising a child, the parent 
must be careful that he does not exceed the bounds of modera- 
tion, and inflict cruel and merciless punishment; if he do, he is 
a trespasser, and liable to be punished by indictment. It is not, 
then, the infliction of punishment, but the excess which consti- 
tutes the o£Eense, and what this excess shall be, is not a con- 
clusion of law, but a question of fact for the determination oi 
the jury. 

Bearing in mind this principle, let us examine the charge ol 
the court below, and see whether this case has been properly 
submitted to the jury. The judge said: *' If the jury believed 



Dec. 1837.] Johnson v. State. 323 

ihai the defendants took hold of the child, and one of them 
stmck the child with her fists, and pushed her head against the 
wall, and then led her off to another house, and with a stick or 
switch struck her, as she was led along, and that the defendants 
took the child into a room and tied her to a bed-post with a 
rope, and kept her tied there for two hours or even half an hour, 
and in that situation whipped her with a cowskin at different 
intervals, as described by witnesses, it would clearly exceed 
moderation and reason, and would be barbarous in the extreme." 
Now, tinder this charge, what was left for the consideration of 
the jury ? Surely nothing but the credibility of the witnesses. 
They were told, if they believed them, then there was excess of 
punishment. Now, is not this making what constitutes excess 
of punishment a legal conclusion, instead of a question of fact, 
or is it not charging the jury upon the fact? Unquestionably it 
is. By the constitution of this state, judges are permitted to state 
the testimony, and declare the law; but they are prohibited from 
instructing the jury upon the weight of the testimony, or as to 
the conclusion, to which it must bring their minds. This is 
peculiarly the province of the juiy itself, and constitutes the 
very purposes for which it is made to form a part of our judicial 
system. In this case the judge should have said to the jiiry, if 
you believe the facts (stating them) as proven by the witnesses, 
and in your opinion, they constitute excess of ptmishment, then 
the law pronounces the defendants guilty. This would have 
been keeping the power of the court and jury within their pro- 
per sphere. But when the court told the jury what the result of 
the facts proven (if true) woidd be, a power was exercised not 
given by law, and a verdict given imder the charge can not be 
sustained. 

We are therefore of the opinion that the judgment in this case 
be reversed, and the cause remanded for a new trial. 



Thk FBnroiPAL gasx was affbovsd in Claxton v. StaUj S Hamph. 184} 
«iid in Fletcher v. People^ 52 111. 397. 



GASES 



IN THX 



SUPREME COURT 



or 
YEBMONT. 



^^ktiiiM: 



V. BBiDLHT. 



MAT Bl JjpnWD OV IBB DaT OV WmOH IT n BaiUSRABU^ 

and A oommitDMnt thereon ie mlid. 
BBMBSwr BATnra ah Eziootiov in his Hands, and » reaeonaMe opporta- 

mty preeenting itMlf to ezeoate it by » oommitanent of the debtor*e body» 

nraetdoeo. 
Failubx to Bitobn an Eubuu t io n within the time oQmmanded, after oom- 

plete aervioe of the flame^ without proof of actual loea, will not entitie a 

judgment creditor to an action on the case against the aherifH 
Sbxedt Aotino vndkb Sfboial iNSTKuonoNB, giving him a diaoretion m 

the enforcement of a writ» ii not liable for the exercise of sach disoretioa. 

Tbb8PA88 on the oase against a sheriff for failing to Ibyj, serve, 
and letum an execution issued by plaintiflh on a judgment re- 
ooTered against one Kinney. The execution was deliyeied to 
the sheriff on the seyenteenth of September, 1838, returned on 
ihe twenty-sixth of October following, with an indorsement 
ihereon that the debtor was, on the thirteenth of that same 
month, committed to jail. Kinney had taken the benefit of the 
poor debtor's act, and had been discharged. Defendant proved 
that plaintiffs had given him instructions to act at his discretion 
in managing the execution. Defendant had judgment. 

F, O. Hill and Charles Adams, for the phdntifb. 

Maeck and Smalley, for the defendant. 

By Court, Bbnnbtt, J. The evidence in this oase shows that 
Einnej was committed to jajl on the execution in its life-time. 



Jan. 1840.] Fletcher v. Bradley. 325 

ihongli the execution was not, in &ot, returned into the office 
from which it issued till shortly after its expiration. In the case 
of Ikimer y. Lowry, 2 Aik. 73, it was decided, that to charge 
bail on mesne process, it was necessary that the officer should 
return the execution into the proper office within the ** sixty 
days,'' with his return of non est inventus indorsed thereon; and 
that, if he fiuled so to do, he was liable for such neglect. This 
case is relied upon as authority to sustain the present case; but, 
are the cases analogous? The law allows a writ of execution to 
be executed on the day on which it is returnable; and, conse- 
quently, the commitment in this case is valid, and the plaintifTs 
have had the full benefit of their execution. While the body of 
the debtor remains in execution, there can be no idterior pro- 
ceedings, and the return of the execution within the ** sixty 
days" is in no way essential to perfect any of the rights of the 
creditor growing out of its service. If the officer, having the 
execution in his hands, see the debtor, and has a reasonable 
opportunity to execute it, in its life-time, by the commitment of 
the body, it is his duly so to do. In the case of Fcdmer v. Pa^ 
ier, Cro. Eliz. 512, it was held that a return of ** nvXta bonay* 
made before the return day of the writ, was void, on the ground 
that, though the debtor may not, at the time, have any goods, 
yet he may have at the return day of the process. 

In Ho^s case, 5 Co. 90, 91, it is held, that if the sheriff, by 
force of a writ of Jieri facias, levies the debt, and delivers it to 
the party, the execution is good without a return of the writ. 
The levying of the debt was lawful, and well done, and the de- 
fendant could not resist the sheriff in making the levy, and the 
effect of the authority, which the sheriff had by force of the 
fieri facias, was executed; and the creditor had the full benefit 
of it. It is said, in that case, that the words in the writ, re- 
quiring the sheriff to make return thereof, are but words of com- 
mand to the sheriff to make return, which if he do not, he shall 
be amoved; but yet the execution shall stand in force. In Ful' 
wood's case, 4 Id. 67, it is held, that the service of a capias ad 
satisfaciendum is good, though not returned. The same is the 
case as to writs of seisin and possession; and, generally, as to 
all writs of execution, which are the most final process known 
to the law, and after which no judgment is to be given, or fur- 
ther process had. Dalton's Sher. 179, 180, is to the same effect. 
By our laws, many executions are required to be executed and 
returned within the life of them. Where an execution is levied 
upon land, the execution and officer's return must be recorded 



S26 Fletcher v. Bbadlet. [Vermunt^ 

in the registry of deeds and in the office from which the execa- 
tion issued, within its life, to perfect the title acquired under 
such levj. And should an officer levj an execution on lands, 
within its life, and omit making his return and having it re- 
corded until after the time limited for so doing had expired, such 
levy would be of no avail whatever to the creditor. 

This is not at all inconsistent with the general rule, that, 
where the creditor has had the full benefit of a complete execu- 
tion of the process, which the sheriff was empowered to execute, 
he, at least, has no reason to complain of the execution not be- 
ing returned into the proper office within the time commanded. 
Our statute provides, it is true, that most of our writs of execu- 
tion shall issue and be made returnable within sixty days, and 
our officers, by another statute, are required to receive, execute, 
and return the same agreeably to the directions therein given; 
but it is a non seqwUur, that the creditor can have his action on 
the case against the officer for the omission to make return of 
the execution within the time commanded, in a case where the 
creditor has had the full benefit of a complete service of the 
execution. If the officer willfully refused to make return of an 
execution according to the command therein contained, he 
might probably be amoved for contempt upon common prin- 
ciples, and our statute, page 208, provides, that, upon convic- 
tion thereof, he shall pay a fine not exceeding one hundred dol- 
lars. It also provides that he shall pay to the party aggrieved 
all damages thereby sustained to be recovered in an action on 
the statute. To give the party a remedy on this statute he 
must have been danmified. If the writ of execution has been 
executed but in part, a return of the execution may be neoeft- 
sary to enable the creditor to take his alias execution for the 
balance. So it may be necessary to enable the creditor to take 
an alias a^painst the goods, chattels, and estate of the debtor, 
where his body has been committed on the first, and the cred- 
itor wishes to discharge it imder the statute. There is nothing 
in these cases, that renders it necessary that the execution 
should be returned absolutely into the office within its life; but» 
undoubtedly, in these, and in all other cases in which the cred- 
itor has suffered a damage from the want of a return of the 
execution he would be entitied to his action on the case. In the 
case before the court the officer committed the debtor on Satur- 
day, the last day of the execution, and on the Monday follow- 
ing, he inclosed it by maU to the justice. There was no un- 
reasonable delay after the commitment, and though the plaint- 



Jan. 1840.] Fabb v. Sumneb. 327 

iflb ayer in their declaration that they have lost the benefit of 
their execution by the neglect of the defendant, yet the evidence 
ahowBy there is no foundation for this complaint. There is no 
pretense that the plaintiffs have suffered any loss from the want 
of an earlier return. 

By the letter of instmctions to the deputy of the def endant, 
he was authorized to act his sound discretion in the manage- 
ment of the execution, secure it if he could, or any part of it, 
and vms requested to write as to the prospects of its collection. 
When a deputy sheriff acts under the special instructions of the 
creditor, giving him a discretion to manage an execution as he 
shall judge best, the sheriff can not be made responsible for the 
exercise of such discretion. It seems the deputy declined, under 
his instmctions, to accept of the thirty dollars, and discharge 
the execution — ^whether wisely or not, is immaterial — and de- 
layed the commitment until he could be advised on the subject 
by the creditors. As the deputy had power to take security for 
the debt, or a part of it, and use his discretion in the manage- 
ment of the execution, it was, necessarily, within his province to 
judge of the expediency of a commitment of the debtor, and also 
as to the time such oommitment was expedient. The deputy 
thought best to delay the oommitment for the advice of the 
creditors, until a given day, before he made the commitment. 
If there was not then sufficient time to return the execution 
into the proper office within " the sixty days," the defendant is 
not responsible for such delay. In short, the discretionary au- 
thority given to the deputy, discharges the sheriff of his lia- 
bility for the official acts of such deputy. 

In this case, then, though it should be held, in ordinaiy cases, 
to be necessary for the officer, upon a commitment of the body, 
to return the execution into the proper office within its life, the 
defendant is not liable, and the judgment of the county court 
is affirmed. 

Leabujtt or Smimrr iob Failubs to Brubv as EnoimoH: Shan t. 
One, 26 Am. Deo. Me, and note, in which this sabjeot Is folly disonssed: 
HaUr. Brooh,9f>ld. 486. 



Fabb v. Sxtmneb. 



[12 VkaMon. 98.] 

OOMTBAor ow AK ISTANT IS VomABLi only, not void, and be omi nofe^ while 
aa InfMit^ disaffinn it, except in case of evident necessity. 



328 Fabb v. Sumker. [Yermont. 

ISTAKT GAK NOT, AiTER Arbiyiko AT Aos, IhsAmiuf his oontnct, and M- 
oover back property tmnaferred witiioat restoring the oonslderKtion r»- 
' oeired by him. 

Tboyse. The opinion states {he faotB. Plaintiff had Tardict. 
Mieck and SmaJUey^ for the defendant. 
Wm, P. BriggSf for the plaintiff. 

By Oourty Williaus, 0. J. It appears that the plaintiff, while 
a minor, purchased a span of horses and harness of the defend- 
ant and paid therefor, in part, in lumbering and another horse, 
and in payment of the balanoe voluntarilj deliyered to the de- 
fendant ilie horse whiohis the subject in controyersy in this 
suit. No act has ever been done byttie plaintiff to avoid or dis- 
affirm the contract for the purchase of the span of horses and 
harness, but, on the contrary, he has had the whole benefit of 
that contract. The plaintiff assumes that the agreement made 
at Salisbury was in the nature of a contract of sale, and that he 
was at liberty to treat it as yoid and maintain this action of 
troyer to recover the horse deliyered in pursuance thereof. The 
contract of an infant, except in certain cases, is not yoid, but 
yoidable only, and, in general, he can not, while an infant, 
unless in case of evident necessity, disaffirm a contract made by 
him; as the same want of discretion, which prevents him from 
making a binding contract, would prevent him from avoiding 
one which might be beneficial to him. He is as incapable in 
the latter, as in the former case, of judging what is for his ben- 
efit. Whether, when he arrives of full age, it is necessary that 
he should do any act to avoid or affirm a contract made while 
under age, to render it nugatory or binding, is a question on 
which there are contradictory authorities. Undoubtedly, in 
some cases, it is necessary that a person should give notice of 
his disafBrmance, after he arrives at full age, or he will be held 
to a contract made during his minority. The case of Chode and 
Bennion v. Harrvson, 5 Bam. & Aid. 147, was one of this de- 
scription. 

If an infant pay money or deliver property on a contract and 
enjoy the benefit of it, he can not disaffirm the contract and re- 
cover the money paid, without restoring to the other party the 
consideration which he receives. This was the ground of the 
decision of Holmes v. Blogg, 8 Taunt. 508. The opinion of the 
court, as delivered in that case, evidently went much further 
than this, and took the ground, that, where an infant pays money 
with his own hand he can not recover it back. This opinioE 



Jan. 1840.] Oleason v. Peck. 329 

was leyiewed in ihe case of Oarpe y. Overiariy 10 Bing. 262, and 
it ma considered that the expressions made use of hy the chief 
justice in Holmea v. Blogg were not warranted by the case. But 
when, as in the case now before us, an infant makes a contraoty 
receives the benefit and consideration thereof, does no act to 
•disaffirm or avoid it, and deliyers property in payment and ful- 
fillment thereof y there is no principle which will warrant a re- 
-ooyexy by him, in an action of trover, for the value of the prop- 
•eriy tiius delivered. It does not appear that any evidence was 
^ven to show that the plaintiff offered to restore to the de- 
fendant the property which he received of him, or that he was 
in a situation so to do, although such a state of facts is alluded 
to in the charge of the court. 

We think the court erred in their charge in relation to the 
effect of the infancy of the plaintiff, under the dreumstances of 
the case, and the judgment must be reversed. 



iNFAim' CoNTaAOXS, VALmnr or: See (Troes t. ffak^ mUe^ 290, and 
•dted in the note thereto. 



Gleason v. Pbok. 

[19 Ywummt, M.] 

AnxiTA QuxanA is a Judicial Writ directed to the oourt having the 
reoord, for the porpoee of setting aside a jndgment or exeeatian, and 
mnst be betw ee n tlie pertiet to the former prooeeding sought to be nt- 



AumxA QUXBiLA. The facts in this case as disclosed by the 
evidence and pleadings were, that the defendants, Scofield and 
Amber, caused the defendant Peck, an attorney, to sue the com- 
plainant, in the name of one Cooper, for the conversion of a 
stove, in which action a judgment was rendered in favor of 
Oooper. Cooper having cUed, the judgment was satisfied by a 
settlement made with his administrator. After such satisfaction, 
an alias execution was issued on such judgment, under which 
complainant was liable to arrest. Neither Oooper nor his admin- 
istrator was a party to the writ. Judgment was given for the 
defendants. 

Wm. P. Briggs, for the complainant. 

Hyde and Peck, for the defendants. 

By Court, Collamsb, J. Audita querela is a judicial writ. 
Formerly it was issued only in discretion, but afterwards was 



830 Aldbich v. Jewell, [Vermont,. 

saed out in ohanoeiy; but must always be to the court haTing- 
the reoord. Its purpose is to set aside a judgment or execution, 
and therefore, like scire facias, error, certiorari, and all other judi- 
cial writs, it must be between the parties to the former proceed- 
ing. Here neither of the defendants in this suit was a paHy to the 
judgment or execution; and, of course, no judgment could be 
rendered to operate on the judgment or execution, and there- 
fore no damages which, by our statute, are incident to such 
judgment, could be given. It is said the action could not have 
been against the administrator, as he was in no fault. That is 
not true. If the administrator undertook to take charge of, and 
receive pay on the judgment, it was his duty to control the exe- 
cution, and his neglect of this was a fault, and fortius &ult, and 
in conformity with law, he, as the legal representative of the- 
creditor in the execution, was the proper person to have been 
pursued by the present plaintiff; or application should have been 
made to the court to supersede and set aside the execution as^ 
improperly issued. It is insisted that the county court did 
wrong in rendering judgment for all the defendants, when the^ 
facts alleged in the complaint were fully proved, at least, against 
one of the defendants. Had the issue been to the jury, the ver- 
dict must have been against such defendant, and then, on motion 
in arrest, judgment would have been arrested. But as the issue^ 
was to the court, who do not render a verdict, and as no motion 
in arrest was made, and as any judgment for the plaintiff would 
have been erroneous, for want of any proper party defendant, 
there seems to have been no other course left to the court but ta 
render judgment for all the defendants. 
Judgment affirmed. 

Writ or Audita Quxbila, m Natobb ajbtd Gmsmbaju Bvnor, Is Mtf 
dlaoawed in the note to Skmiford v. Barrff, 16 Am. Deo. 606^ and in Llttkr^ 
Cook Id. 696. 



Aldbioh V. Jewell. 

[12 Vkbmomt, 136.] 

PboMisB TO Pat Okb for Work Psriormxd ior Anothbr, if snoh oIlMr 
would not, is within the statute of frauds and must be in writing. 

Assumpsit for work and labor rendered one Douglas. Th» 
ease was referred to an auditor, and the material facts found hf 
him are stated in the opinion. Defendant had judgment. 

W. P. BriggSf for the plaintiff. 



Jan. 1840.] Naso^ v. Blaisdell. 331 

Mcteck and SmdUey, for the defendant. 

By Ck>urt, Benmbtt, J. It is said, in argument, that this report 
should ha^e been set aside by the court below, on the ground that 
the auditor has not reported the facts found by him, but simply the 
evidence adduced on trial. We think this objection is not war- 
ranted by the report itself. The auditor finds, " that the plaint- 
iff observed to the defendant, that he did not know Douglas, 
but that he would work for him, if the defendant would pay him 
if Douglas did not; to which the defendant answered, that h^ 
would pay the plaintiff if Douglas did not." This is not re- 
porting the evidence, but the precise language in which the un- 
dertaking of the defendant was couched, and though this was 
not necessary, still it is not legally objectionable. There can be 
no question but what the imdertaking of this defendant is within 
the statute of frauds. It is clearly settled that the statute ap- 
plies to collateral engagements, that is, to cases where there 
exists a debt, or legal liability on the part of a third person. If 
the undertaker comes in aid, only, to procure a credit to be 
given to a third person, in such case there is a remedy against 
both, and both are liable according to their distinct engage- 
ments, and the undertaking of the one is but collateral to that 
of the other. 

In the case under consideration, the undertaking of the de- 
fendant is in topress terms in aid of the credit of Douglas, and 
is, therefore, collateral to his, and within the statute. The 
judgment of the county court is affirmed. 

Pbomisb to Akswxb roBTHB Debt ov Avotbxe miia bo in writing: Leon- 
ard T. VredaUmrffh, 6 Am. Deo. 317, and note; JR»rley ▼. OUwkmdf 15 Id. 
a87, aad note; Shhmer ▼. OonaiU, 21 Id. 664. 



NaSON V. BliAIBDELL. 

[13 TkBMOMT, 166.] 

/onoMBHT HOT Uf RiM 18 Nbvkr O0NOLU8IVB exoept npon the Tvry mat- 
ter in Judgment, and between the veiy same partiee or their priviee 
either in blood or estate. As to all others, the judgment may be im- 
peached and contradicted by collateral evidence. 

EjEGnoEMT. Plaintiff deraigned her title hy will from one 
William Nason, who was in possession of the land in controverEfj 
in 1801, in which he devised the land to his son John, after his 
wife's death, upon the condition that he would pay all legacies 
mentioned in the will, among which was one to the plaintiff for 



332 Nason V, Blaisdell. [Yemumti 

two hundred dollars. William Nason died in December, 1810, 
and his wife in 1839. Plaintiff also gave in eyidenoe a deed to 
herself and others from John Nason, of the land, dated July 21, 
1820, and proved that defendant had been in possession since 
1834. Defendant then proved that William Nason's title to the 
land vested on a perpetual lease from one Jotham Bush, made 
in 1800, which reserved a yearly rent for the same of six dollars 
and twenty-five cents, and contained a clause that upon one 
year's rent remaining impaid for more than a year, it should be 
lawful for the grantor or his heirs or assigns, upon givingthirty 
days' notice to the tenant in possession, to re-enter and take 
possession of the premises. They also gave in evidence a rec- 
ord of a judgment rendered in September, 1827, in an action of 
ejectment for the land, in favor of Bush and against John Na- 
son, and proved that Bush had taken possession imder the 
judgment. Defendant held under this judgment by virtue of 
mesne conveyances from Bush. Plaintiff then offered to prove 
that this judgment was obtained by a fraudulent collusion be- 
tween Bush and John Nason, and that defendant was holding the 
land as trustee for John, and that no notice of the non-payment 
of rent had ever been given as required by the lease of 1800. 
The court excluded the evidence, and defendant had verdict. 

SmaUey, Adams, and A. O. Aldia, for the plaintiff. 

H. B. and J. J. Bearddey, and 8. 8. and O. W. Broum, for 
the defendant. 

By Oourt, Bedfoeld, J. The only important question arising 
in this case, which the court have deemed it necessary to decide, 
at this time, is, as to tiie effect of the judgment in favor of Bush 
V. Naaon, September, 1827. There is no evidence in the case, 
except that furnished by the judgment itself, that John Nason 
was ever in possession of the premises, or that he is not a mere 
stranger to the title of William Nason. For it does not appear 
that he ever claimed title under the will, or performed the con- 
ditions upon which the land was devised to him. It is to be 
borne in mind, too, that the facts offered to be proved, at the 
trial, by the plaintiff, so far as they are material to the decision 
of this case, must here be considered as proved. It results, 
then, that the defendant attempts to screen his intrusion upon 
the possession of the plaintiff, under the title of Bush, in order 
to do which he must first show the lease to William Nason avoided 
by non-payment of rent, or some other breach of condition. 



Jan. 1840.] Nason v. Blaisdell. 333 

This is not attempted to be done, except hy force of the judg- 
ment against John Nason. 

It is obvious, that this judgment is in no sense oondusiTe 
upon the right of the phintiff. A judgment which is not in 
rem, is nerer condusiTe except upon the yeij matter in judg- 
menty and between the yeiy same parties or their jxriyies, either 
in blood or estate. As to all others, the judgment may be im- 
peached and contradicted hy collateral evidence. For as those 
who are not parties or privy to the judgment could have no pro- 
cess to operate directly upon the judgment, if they could not 
attack the judgment collaterally, they would be remediless. 
This point v^as decided on the last circuit in Orleans county, in 
the case of .^l^nsonv..iZ2en [po8/, 861]. The rational of the rule 
of the conclusiveness of judgments, is merely technical and 
arbitnuy, and one of convenience only. There is not any more 
saoredness, absolutely, in the proceedings of a court of justice 
than of many other tribunals, whose acts are alvrays subject to 
be scrutinized and revised even. But that there may be an end 
of controversy, this rule has been adopted. The same matter, 
once litigated in a court of justice, and definitively adjudicated, 
is forever put at rest, for the alleged reason, that, unless this 
was so, litigation would be endless. If, when a party had once 
litigated a point, or, which is the same thing, had had an op- 
portunity of litigating it, he might still renew the controversy 
at will, the present evils of litigation would be indefinitely 
multiplied. And hence, the universally acknowledged wisdom 
of the maxim: Sit finis lUium, irUereetreipuhliccB. 

But, it needs no argument to show that this rule can not, in 
justice, be applied to one who is neither a party to the judg- 
ment, nor had any opportunity of becoming a party. A judg- 
ment, rendered under such circumstances, is of no more force, 
as against strangers, than if the record had been forged. It 
would be surely vain labor, to show, in detail, the many mani- 
fest absurdities and wrongs, which would naturally flow from 
the opposite doctrine. If two persons, by getting up a formal 
judgment in a court of record, could bind all the world conclu- 
sively, as to all the facts upon which the judgment was predi- 
cated, it would be a mode of proof often resorted to, I fear. As 
the court below erred in the effect which they gave to the judg- 
ment in question, judgment is reversed and a new trial granted. 



Stbansibs to a JuDoiMNT CAN NOT AvoiD ITS EvFBCTS by showug that 
it WM vmmwQMi Baudin ▼. JRoHf, 14 Am. Dec. 181. Decree of an orphans 



834 Davis v. Fulleb. [Vernionii 

«oiirt oonflrming » sale by an administrator oaa not bo odElatenlly attaokedt 
Van Dyh$ ▼. JohM, 12 Id. 76w 

JuDOMSZVT MAT BX OoLLATX&AU<T AlTAOKXD f OT Want fA Joriadiotion to 
nnder it: BUnrbiick x, Murray, 21 Am. Deo 172. and note; Jk/<mr ▼. Ckmh 
firanc, 13 Id. 360, and note. 



Davib V. Fuller. 

[13 ysufOBT, 1TB.] 

AiOBBATioir ov A DuD, WHKHT DouBTFUL, will not waoant Its eaolnsioB 
firam evidenoe. 

DisoBiFTiON OF A Locus IN Quo MAT BB Pbotbd bt Pabol, ofl a matter 
of repatation. 

Pabol Eyidxnox ov thb Statxmxntb ov'Peb8o:v8 oompetent to be wit- 
nesses, when against their interest, oan not be given without proof of 
their death, especially when such statements are mere matters of opinion. 

RiPABiAir Pbofbzxtob oan not bb DBntiTBD OF HIS BioBT to the nat- 
ural flow of a stream by mere use or appropriation by another, except by 
grant or by use or occupation for such a length of time that a grant will 
be presumed. 

AonoH on the case, for obstmotiiig a stzeaxa* which flowed 
through plaintiff's land» described as lot No. 133. in Enos- 
bnrgh, by reason of the erection of a dam, which caused the 
water to flow back and injure plaintiff in the use of his mill 
situated on such lot. Plaintiff introduced a witness who testi- 
fiedy against defendants' objection, that the lot on which the mill 
was situated was known as lot No. 133. Defendants offered to 
proTe, by evidence of the declarations of a prior owner of 
plaintiff's mill, that before the erection of defendants' dam, 
there had been a similar obstruction to the use of the mill, 
caused by the accumulation of ice in the river. This evidence 
was objected to and excluded. The further facts appear in the 
opinion. Plaintiff had verdict. 

Smiih and Aldis, and SmaUey and AdamSy for the defendants. 

S. S. Brown and H. R. Beardsley, for the plaintiff. 

By Court, Collahbb, J. There is much diversity, in the author- 
ities, in relation to apparent alterations in written instruments. 
By some it is considered such alterations are to be presumed 
to have been made by the holder after delivery, and that unless 
he rebuts this presumption, and shows it was made befoie de- 
livery, or by mutual consent, it destroys the paper. This seems 
to presume the holder is guilty of forgery and has destroyed his 
own security. Other law writers consider that such alterations are 
to be presumed made before deliveiy or by consent, until the con- 



Jan. 1S40.] Davis v. Fulleb. 336 

• 

inayis ahown. But, in this case, we Chink the question does not 
Arise, as we find on inspection, that there was no suoh ohrious 
alteration that the court could, consistentij with any course of 
decisions, have excluded the deed from the jury. The very fact 
of there being any alteration was quite too doubtful to be as- 
sumed by the court. The plaintiff alleged that the injury done 
him was on lot No. 188. This niunber was not a matter in is- 
sue, that is, the plaintiff did not claim to own No. 188; neither 
does it seem to have been important as a matter of identity, as 
there was no doubt where the pLuntLFs mill, in fact, was. It 
was apart, and entirely a useless part, of the description of the 
locus in quo, for the plaintiff's land was otherwise described in 
his deed with sufSdent precision. But, as it was matter of 
description, it must be proved. Beputation was, however, suf- 
ficient. That the lot had been so called and treated was enough. 
Therefore, Woodward's testimony, that he bought, held, and 
sold it by that name, was clearly admissible. 

Among the few exceptions to the role of law, that the state- 
ments of persons, out of court, who might be witnesses in, are 
not permitted to be proved, is this — ^the statements of tenants 
or occupants of land, of the extent or nature of their tenancy. 
But it is not true that any statement which a man may have 
made, which was against his interest, is admissible in evidence, 
because he can not be presumed to have done it falsely. The 
ontries in physicians' and stewards' books, made against their 
interest, have never been permitted to be proved while they, the 
physicians or stewards, were still living. Here the defendants 
offered to show that persons who owned mills on this dam, had 
said they had been troubled with back-water in the winter, and 
that it was owing to anchor ice on the falls below. No proof 
was offered that these persons were deceased. This did not fall 
within either of the above exceptions and was inadmissible. 
Besides, it was a mere matter of opinion, on the point on trial, 
and they could hardly have been permitted to testify to it in 
court, much less could their opinions on this point be put in 
evidence, without the sanctions of legal obligation. The case 
does not contain any sufficient statement to present to this court 
the question, debated by the counsel, as to the attempt to im- 
peach Hazelton. The case shows it was offered to be proved he 
had said his sawmill had been obstructed by ice below, but the 
case does not show that when his mill was obstructed the plaint- 
iff's must be also. 

This brings us to the main question in the case, that is, what 



836 Davis v. Fuller. [Yermoat^ 

are the zespeoti^ zights of these partieB. The jnzy, under the- 
ohaige of the court, have f otind the following fads. The plaint- 
iff holds a certain lot of land, across which flows a riyer on 
which he has a grist-mill. The defendants own land on the 
stream below, where thej have erected a dam to carry a saw- 
mill, but haye erected it no higher than is necessary for thai 
purpose. This dam occasions accumulations of ice, which, at 
times, flows the water back on to the plaintiff's land and ob* 
structs his mill to his injury. There has been no grant between 
the parties and no user for any such lapse of time as that any 
grant could be thereby presumed. What are the rights of these 
riparian proprietors f 

It has been supposed, and at times said, in our courts, that,, 
by thefirst appropriation of the stream to the carrying of a mill,, 
some ezdusiye right was obtained, and that the rights of pro- 
prietors of land to the natural flow of the water across their 
land must be qualified, or accommodated, or, in some degree, 
giye way to the conyenient and prudent use of that water by 
mill-owners aboye and below. The use of water in ordinary 
streams, running oyer lands which are upon the jxriyate prop- 
erty of indiyiduals, has been attempted to be placed on the 
same principle as using the water of the sea or of nayigable 
riyers or the use of the air; a mere right deriyed from the ap- 
propriation from the common stock of the element. This, 
howeyer, is -a wrong yiew of the subject. The owner of land 
has rights to the use of a priyate stream running oyer his land, 
peculiar to himself as owner of the land, not deriyed from oc- 
cupancy or appropriation, and not common to the whole com- 
munity. It is the right to the natural flow of the stream. Of 
this right he can not be depriyed by the mere use or appropria- 
tion by another, but only by grant or by the use or occupancy 
of another for such a length of time as that therefrom a grant 
may be presumed. This subject has recently imdergone much ju- 
dicial examination. In the laborious research of the learned Judge 
Cowen, lately giyen to the profession in his notes to Phillips' 
Eyidence, yol. 2, 878, on this subject, he says: '* It is not to be 
disguised that the doctrine of exclusiye right, founded on mere 
priority of appropriation, receiyed, at one time, strong counte 
nance from dicta of learned judges, if not by direct adjudica- 
tion;" " and in the anxiety to maintain the concurrent erection 
and use of mills, the claim to the natural flow seemed to rest on 

yeiy imcertain ground:" and he cites 15 Johns. 216;' 17 Id* 

- — - ■ - ■ - 

1. PlaU y. Jckntom; S. 0., 8 Am. Dm. 288, 



Jan. 1840.] Davis v. Fuller. 337 



806;' 3 Gai. 307;' 2 Aik. 184,** the same authorities on which 
the defendants rely. 

In England, in the recent case Wright y. Edmmond,* before 
the Tioe-chanoellor, in 1831; and in the case Mason y. HUl, 
before the king's bench, in 1832, the subject underwent judicial 
inyestigation: 3 Bam. & Aid. 304,-^ 23 Com. L. 77. Says Lord 
Tenterden, adopting the language of the master of the rolls: 
" Without the consent of the proprietors who may be afiEected by 
his operations, no proprietor can either diminish the quantity 
of water which would otherwise desoend to the proprietors be- 
low, nor throw the water back upon the proprietors aboye. 
Eyery proprietor who claims either to throw the water back 
aboye or to diminish the quantity which is to desoend below» 
must proye an actual grant or license from the proprietors 
affected, or an uninterrupted enjoyment of twenty years. " ' ' An 
action will lie at any time, within twenty years, when injury 
happens to arise in consequence of a new purpose of the party 
to ayaU himself of his common right." In New York, in the 
case 10 Wend. 260,* the same doctrine is settled. In Massa- 
chusetts, the same doctrine is now fully settled: 9 Pick. 59.* 
In Connecticut this is also fully sustained in the case Kinget cU. 
Y. Tiffany f 9 Conn. 162. And in these authorities, the courts 
repudiate the notion that the amount of the damage alters the 
principle. In this state, the case of Johns y. Stevens and Brewster, 
3 Yt. 308, recognizes the same law. The result of all these 
authorities, then, is, that eyexy owner of land oyer which a 
stream flows, has the right to the natural flow of that stream; 
that he can neyer be depriyed of this right but by grant, actual 
or presumptiye. Wheneyer this right is encroached upon by 
obstructions or peryersions, aboye or below, and actual injury 
ensues, to any material amount, an action accrues, howeyer yal- 
uable or conyenient the use of such obstructions may be to him 
who erected them. Judge Story says, in the case Ik/ler y. WUhtn- 
son* *' Mere priority of appropriation of running water confers 
no exclusiye use." And again, " The true test of the principle 
and extent of the use is, whether it is to the injury of the other 
proprietors or not." The notion now insisted on for the defend- 
ants, that a man who has a mill priyilege may use it, if he does 
no wanton or unnecessary injury to another, is entirely without 

1. MgrriU T. BrifiJurkoff: S. 0., 8 Am. Dec. 40A. 

3. Palmer t. MutUgan; S. C, a Am. Deo. 270. 
S. MmrHm t. BiffUaw; S. 0., 16 Am. Deo. 696. 6. Crookerr. Bragg; S. C, M Aa.Deo. Hi. 
4. JMgkt T. HMford, 1 Slxn. h Sto. IM. 7. Thampton t. Chntiktr, 

i. 9 Bora. Ik AdoL 8M^ 8. 4MMOn,897. 

Am. Dwi. You XlXVl— ^ 



838 Nash u Skinneb. [Vermont, 

foundatioii. No man can be said to have a mill privilege which 
can not be used without injury to others. The plaintiff acquired 
no right bj the first erection of his mill, but he had a right to 
the natural flow of the stream. The defendants, by their dam, 
interrupted that right. The plaintiff was thereby injured, and 
for this cotdd sustain his action. 
Judgment affirmed. 



As TO THB Bfibct OF AxTCRiiTioNB IK Inbtruicbiitb generally, eee the 
note to Wooduforih y. Bank <^ America^ 10 Am. Dec. 207, end oeaee cited; 
WooUy V. Ckmtteml, 4 Id. 246; Stephem v. Chnham, 10 Id. 485; Dm ▼. 
Wrighl, 11 Id. 546; OampbeUr. McArthmr, Id. 788; BaUe^r. 7Viyior,29Id. 
321, end prior oaees in thii eeriea cited in note. In HtUeh v. HeUch^ 6 Id. 
07. it was said that the rales as to the alteration of written ezecatory oon- 
tracts are not applied with the same striotaeM to oonveyanoes of real estate 
which have vested in possession. 

DlGLARATlOira AND AdMIBSIONS OF PXBSOVS Off POflSSaSION OF LaND, 

when aUowable in evidence: See note to Deming v. Oarrinffton, 80 Am. I>ec. 
585, and prior cases in this series cited therein. 

Watbb Biohtb Obtainxd bt AFPBOpaiATioK Ain> PBEaoBiFTioN: See 
Sherwood v. Burr, 4 Am. Dec 211, and note: Plait v. Jokiuon, 8 Id. 233; 
StrieUerv. Todd, 13 Id. 649; Wetnwre v. WMte, 2 Id. 323; Cook v. HuU, 15 
Id. 208; BUmehard v. Baker, 23 Id. 504; Ho^ v. Sterreit, 27 Id: 813, and 
note. 



Nash v. Skinneb. 

[la Ymmtom, 219.] 
iMnoMnaiiT upov thb Back of a Notb, prior to its delivery, by 
not a par^ thereto, renders him liable as a joint promisor. 

AOBUMXHT THAT OmX WHO PlAOSB HIS NaMB ON THX BACK OF A NOTB 

for the accommodation of the maker, shall be liable only as a eeeond in- 
dorser, will not limit his liability to the payee as a principal. 
NoN-joiNDSB OF A JoiBT Pbomibor, in an action of assnmpnt, is only mat- 
ter of abatement^ and oan not be taken advantage of nnder the geoeral 
issae. 

AssuxpfiTT on a promissory note, made by one Jewett, at the 
town of Gtanville, state of New York, payable at Troy in the 
same state, and indorsed by Skinner, Henry Bulkley, S. Bnlk- 
ley, and H. L. Sabin, the last three doing bosinesa as partners 
under the firm name of H. and S. Bulkley & Co. The further 
facts appear in the opinion. Plaintiff had verdict. 

E. N. Briggs and E, F. Hodges, for the defendants. 

Starr and Bushnell, for the plaintiff. 

By Court, Bknnbtt, J. The important inquiry in this case* 
is, as to the right of the plaintiff to recover upon the facts de- 



Jan. 1840.] Nash v. Skinner. 839 

tailed in the bill of exceptions. It seems the note was signed 
by Jewett, and indorsed, in blank, by Skinner and Buckley & 
do., in New York, for the purpose of enabling Jewett to pass it 
to the plaintiff in payment for wool, which he was about to pur- 
^shase of him, and that Skinner, as well as Buckley & Co., well 
Understood, at the time the note was indorsed, the use to which 
it was to be appropriated, and it was accordingly passed to the 
plaintiff in payment for wool purchased of him by Jewett. 

It has been decided, in this state, and may be regarded as 
settled law, that when a person, not a jpojrty to a note, signs his 
name upon the back, without any words to express the nature of 
bis undertaking, he is considered as a joint promisor with the 
other signers: Barrows y. Lane and Benham, 5 Yt. 161 [26 Am. 
Dec. 293]; Knapp y. Parker, 6 Id. 642; Flint y. Day, 9 Id. 347. 
This IS also the settled law of Massachusetts, and in the case 
of Siml Y. Adams, 6 Mass. 519, and in Mbiea y. Bird, 11 Id. 
486 [6 Am. Dec. 179], it was held that, upon the indorsement 
alone, the indorser was, prima facie, and without any proof to 
oxplain it, to be treated as a joint promisor. It is said, how- 
OYer, in argument, that this contract is to be goYered by the 
laws of New York; and that by the decisions of the courts of 
that state, the plaintiff is not entitled to retain his Yerdict. We 
will examine, for a moment, the New York cases. In the case 
of Herrick y. Carman, 12 Johns. 159, in error, it did not ap- 
pear that the plaintiff in error indorsed the note for the purpose 
of giving the maker of the note a credit with the payees of it, 
or that he was, at the time he indorsed the note, in any way ad- 
vised of the use to which the maker intended to apply it. The 
court say, in the absence of any proof to the contrazy, we must 
intend that Herrick meant only to become the second indorser, 
with all the rights incident to that situation, and that the &ot 
of his indorsing first, in point of time, could have no influence, 
as he must have known, and we are to prestune he acted on that 
knowledge, that though first to indorse, yet his indorsement 
would be nugatory, unless preceded by that of the payee of the 
note. The case of TiUman y. Wheeler, 17 Johns. 826, is de- 
luded npon the same principle. The legal presumption, it is 
said, is, in the absence of any explanatory proof, that the persons 
who put their names upon the back of a note, do it for the ac- 
commodation of the payees, and are to stand as second in- 
dorsers. This, it is true, is a different inference from what the 
courts of Massachusetts would have made, and, perhaps, of this 
state. In the cases decided by our courts, it distinctly appears 



340 Nash u Skinnbr. [Vermonth 

that the persons indorsing the notes, were fully apprised of the 
uses to which the notes were to be applied. 

In the case of Nelson v. Lhiboia, 18 Johns. 175, it appeared 
the defendant put his name on the hack of the note to give the 
maker credit with the plaintifT, and that the plaintiff parted with 
his property, relying upon the indorsement. In that case the 
court recognize the case of HmU y. Adams, 5 Mass. 358 [4 Am. 
Dec. 68], and White v. Howland, 9 Id. 314 [6 Am. Dec. 71], as 
sound law, and it was held that Dubois was liable as upon an 
original undertaking, as surely, and as much so as if he had 
signed the body of the note. The case of WhUe v. Bowland is 
▼eiy similar to the one before the court. In that case one Taber 
gave a note to the plaintiff, payable on demand. It appeared 
the amount of the note was loaned to Taber, upon his agreeing 
to give his note with two indorsers, and that the note was given 
with that intent, payable to White, and indorsed by one 
Coggeehall and the defendant. The court held that the plaintiff 
was entitled to recover, and that the effect of the defendant's 
signature w6s the same as if he had subscribed the note upon 
the face of it, as surely, and that he was answerable as an 
original promisor with Taber. So in the case of Campbell y. 
BtiUer, 14 Johns. 349, where A. had agreed to become surety for 
B., upon the purchase of goods from 0., and B. made a note to 
0. for the amount, payable to his order, on which A. indorsed 
his name, in blank, it was held, upon the authority of Nelson y. 
DvJboiSf that 0. might fill up the blank with an expreoB agree- 
ment to pay the note, and that A. was liable asan original prom- 
isor. The defendant, when he indorsed this note, understood 
it was to be passed to Nash, and it was indorsed with this in- 
tent, and to give the maker, Jewett, a credit with the plaintiff, 
and not to enable him to put the note in circulation. The pre- 
sumption, then, that this note was indorsed for the accommo- 
dation of Nash, and that Skinner was to stand as second indorser, 
is effectually rebutted, and the case falls directly within the 
principle of the case of Nelson y. Dubois and of Campbell y. But- 
ler. In this case the signatures of all the promisors were made 
at the same time, and before the note was deliyered to Nash, and 
the consideration to bind the surely is apparent from the case, 
it being the credit given to the principal, by the promisee of 
the note for the value received of him. The defendant could 
not be made liable as indorser, simply, so long as the paper re- 
mained in the hands of the promisee, and it is evident that he 
did not indorse it with the expectation of aiding Nash in putting 



JaiL 1840.] Nash v. Skinner. 341 

the note in ciroiilation. The well-settled principles of law, as 
well as common justice, require that he should be holden as an 
oziginal promisor. 

The declaration of the defendant Skinner, to Buckley and 
Jewett, at the time fhe note was made, '* that if thej signed 
such a note, they should stand only as second indorsers, and 
that Nash would not take it, as it would do him no good," can 
have no effect to limit the liabiliiy of the defendant. It was 
evidently no more than the expression of a legal opinion of the 
effect of the blank indorsement of such a note. It was not in- 
tended to limit the obligation. Besides, this conversation was 
not carried home to Nash. Jewett can no more be regarded as the 
agent of Nash, than Bulkley , and when this note was made and 
indorsed for the express purpose of being passed to Nash, in 
payment for wool, which Jewett was to purchase of him, the 
lights of the plaintiff can not be prejudiced by any private con- 
versation or understanding between the maker and indorsers, 
not carried home to the knowledge of the plaintiff. Such tes- 
timony was wholly immaterial, as to the merits of this action, 
and, consequently, it is no good ground why this court should 
grant a new trial, though the court below refused to admit tes- 
timony to show that the witness, Jewett, had given a different 
relation in this particular, from that which he gave upon the 
stand. 

It is said, in the argument, that there is a variance between 
the dedazation and the proof, but this objection is without 
foundation. In the case of Pease v. Morgan, 7 Johns. 468, 
cited by the defendant's counsel, it was indeed held that where 
the pliuntiff declared that the defendants made the note, " their 
own proper hands and names being thereto subscribed," and 
the proof being that the note was signed in the name of the 
firm, by one of the defendants, there was a variance. The 
dedaiation, in that case, did not allege that the defendants 
were partners, or acted under the name of the firm by which the 
note was signed. In this case the three i>ersons composing the 
firm of H. and S. Bulkley & Co., are set up, in the writ, as co- 
partners, under the aforesaid firm, and it is averred in the 
declaration, that the defendants made and signed their certain 
note, etc., not adding that it was subscribed by the proper 
hands and names of the defendants. It is always sufficient to 
declare upon a written instrument, according to its legal effect, 
and if the evidence supports the allegations, it is all that is re- 
quired. It can not be objected, as a ground of variance, that 



342 Boss V. Fuller. [^ermon^ 

Jeweit fihotild also hftve been joined in the suit as a joint con- 
tractor. In an action of assnmpist the non-joinder of a joint 
promisor, is only matter of abatement, and can not a^ail the 
party under the general issue. 

It is also said, that inasmuch as the dedaxation iflsued in this- 
case against Sldnner and H. and 8. BulUey & Co., the plaini- 
tiff, to support his declaration^ is bound to prove a joint con- 
tract, made by them all, though a turn efi inveniuM has been re- 
turned as to the BuUdeys and Sabin. It is not, however, under 
our statute of 1886, material to decide whether the firm of H. 
and 8. Bulkley k Oo. were bcnmd by the signature of Heuj 
Bulkley, or not. 

Our statute proridee, that, whan any of the defendants azo- 
not a pariy to the contract, the plaintiff may reoofer against the- 
other defendants, who are shown to have made the contract. 
l!he judgment of the county court is affirmed. 



Qini Who Warm bis KiMaoHTBa Back or ▲ Hon a* the time it tra» 
made, inoon the liabiUty of a Joint pnmieor: Bahtr t. BHagt^ 19 Am. 
I)eo.811| H^MaT. A«pl(m4iaid.71|irotey. BM,Id. 179. The admie- 
■Ihility of evidnoe to ¥ftiy the eflbot of an indonNOMBt is < lto < wed in tli» 
■ote to IRB T. JPV> 8 Id. SSL 



Boss t;. Fuller. 

AnomMKHT Of a Spboial OmcxB to Sxbvb FiKxmB It a Judkiel 

end oen be ezereifled only by the authority eigniiig the proocas. 
DiFOTATioN or AuTHOBiTT TO SxBVB A Wbit Signed by a Jnetioe of tfae- 

peaoe in blank, and afterwarde filled up by a stranger, ooDtee no author* 

ity upon the penon therein apparently authoriied. 
Radical Dxnor ik tes Affointmszit or ths Pnaov who aenres a writ^. 

is not cured by judgment by default 
Ik TsEBrABS all abx Liable who PABxiaiPATa Jn the wrongful aot». 

either by aiding in, or advising, or assenting to it. 

I5D0B8BB OV A NON-HBOOTIABLB KOCB 18 NOT LlABLB A0 A TBHPAflBBT 

for the seizure of property under a void attachment Issued in a proceed- 
ing brought thereon in his name as nominal plsintiff. 

Tboteb for a mare, seized by the defendant Gazpenter, 'bf 
virtue of a writ of attachment issued by a justice of the peace 
in an action against the plaintiff, brought in the name of the^ 
defendant Fuller, on a non-negotiable note, transferred by him 
to one Smith. It appeared that the writ of attachment had 
been signed by the justice in blank, and the deputation of au* 



Jan. 1839.] Ross v. Fuller. 343 

thoriiy to Oarpenter afterwards filled in bj a stranger, without 
the knowledge of the justice. The further facts appear in the 
ojunion. The plaintiff had verdict against both defendants. 

C. Liiisley and W. P. Brigga^ for the defendants. 

Hyde and Peck and 8. 8. Phelps, for the plaintiff. 

By Court, Botob, J. The appointment of a special officer to 
make service of process is a judicial act, which can be exercised 
only by the authority signing the process. This is fully settled 
by the case of Beebe ▼. 8teel, 2 Yt. 314, and others which have 
followed it. It must result that the deputation upon the origi- 
nal writ, in this instance, having been signed by the magistrate 
in blank, and afterwards, without his direction or knowledge, 
filled up by a third person, conferred no legal authority upon 
the defendant, Oarpenter. He was never appointed to serve the 
writ, and his proceedings under it were therefore unauthorized 
and void. Besides, the fact that the writ was merely signed in 
blank, when the supposed deputation was indorsed upon it, would 
render the deputation ineffectual and void, even had it been filled 
with the name of Carpenter by the justice himself : KeUy v. Paris, 
10 YL 261 [33 Am. Dec. 199]. And this was not a mere ground 
of defense to the suit by way of albatement, but a radical defect, 
which the judgment by default did not cure. The plaintiff was, 
of course, entitled to recover, in this action, against the defend- 
ant. Carpenter. It remains to consider the case in reference to 
the defendant Fuller. It appears that he held the plaintiff's 
note, which was not negotiable; that at the plaintiff's request, 
he passed the note to one Smith, who had the plaintiff's express 
consent that he might dispoi^ of it to whomsoever he pleased; 
that Smith sold it to one Allen, who instituted a suit upon it, 
and caused the horse in question to be attached and taken away 
by Carpenter. The question is, whether Fuller, the original 
payee of the note, and whose name was necessarily used in the 
suit upon it, is liable for the trespass complained of. 

The principle that, in trespass, all are liable who x>articipate 
in the act, whether by aiding in it, or advising or assenting to 
it, will sometimes subject a person, as a trespasser, who has 
merely delegated an authority to be executed for his benefit. 
This is the ground upon which the cases cited from Wilson are 
sustained, and upon which the real party to a suit is usually 
made responsible for the acts of his attorney, and for those oi 
ministerial officers employed in his service. But the case at bai 
is not within the spirit of this rule. The defendant, Fuller, waa 



844 Boss V, FuLLEB. [VermoQl^ 

a nomixial, but not a real parfy to these void proceedings. His 
prerions sale of the note was a legal act, operating to transfer 
the interest in it for all collateral purposes; for eyery purpose, 
indeed, except that of prosecuting a suit directly upon the note. 
The legal custody of the instrument belonged to the purchaser, 
as would the avails, when collected or otherwise received. And 
his authority to use the name of Fuller, in suing upon the note, 
was a power to be executed for his own benefit, and over whidi 
Fuller had no control. Why, then, should he be answerable for 
this trespass, committed in his name, but without his co-opera- 
tion or power of prevention? To hold him liable, it must be 
assumed that the record, in the action upon the note, furnishes 
evidence which is legally conclusive that he did personally con- 
cur in the trespass, or had an interest to be promoted by it. But, 
since all this may be effectually disproved for other purposes, we 
think the evidence equally avulable for his protection in this in- 
stance. It is true, that, according to the decision in 8L Albans 
V. Bush^^ the plaintiff of record in an unsuccessful suit, though 
it were brought without his priviiy or consent, is conclusively 
fixed with the costs recovered therein by the other party. But 
that case evidently proceeds upon a ground too narrow to sustain 
the present. It does not affirm the conclusiveness of the record, 
for any purpose beyond that of enforcing the judgment itself. 
The case of Tichoiui v. GUl&jf has a much nearer resemblance to 
the present, and some of the reasons which appear in the opinion 
of the court, would seem to go the length of supporting this ac- 
tion. In some important purticulars, however, the two cases dif- 
fer. In selling the note of Tichout to Taylor and Prentiss, there 
was an express stipulation contemplating a suit on the note, and 
Cilley regulated his responsibility in reference to it. He also 
turned out property upon the original writ, and, according to 
the report of the case, Tichout does not appear to have had 
notice that his note had ever been transferred. As several of 
these considerations appear to have entered into the grounds of 
that decision, we can not regard it as an authority governing the 
present case. 
Judgment of the county court reversed. 

1. 4V«.0t. 9. 8VI.41C ' 



Jan. x839.] Munson v. Hastinos. 345 

MuNsoN V. msnsm. 

[13 TteMOliT. 846.] 

Prior SrATnnERTS of a Wmriss our ow Goubt, arb Ivadmxuibxji to 
oonobomte hia testimony. 

PBOiOBX OF Mabbiaos mat bb Implixd vbom GiBOUifSTAircan, bat men 
attentions paid by a man to a woman, although ezdnaive and long con- 
tinned, will not warrant such presumption. 

Assumpsit for breach of promise of marriage. The evidence 
tended to show that the defendant for the period of seven years 
had paid the plaintiff marked and constant attention, by visit- 
ing her at her father's house, taking her out driving, etc., and 
leas received and recognized by her as her accepted suitor, and 
that he had frequently admitted that he had agreed to ^narry 
her, and had expressed his approval at the purchase of certain 
fomitore by the plaintiff's father, in anticipation of such mar- 
riage. These facts the defendant denied. The dex>osition of one 
Lura Culver was introduced in evidence, showing that plaintiff 
had been discovered in improper associations vnth other men. 
Upon an attempt to impeach the testimony of Culver, the de- 
fendant offered to prove, in corroboration of the same, that she 
had at other times made similar statements, but the court ex- 
4;luded the testimony. The court, against defendant's objection, 
instructed the jury that they might infer a promise to marry on 
the part of the defendant, from constant, long-continued, and 
exclusive attention to plaintiff. 

P. Smah and E. L, Ormsbee, for the defendant. 

C. Lindey^ and Clark and Harrington^ for the plaintiff. 

By Court, Botob, J. There are cases in which evidence of 
the previous declarations of a witness is not only proper, but 
where the want of such proof would require a satisfactory ex- 
planation. Those are cases, however, where the silence of the 
witness would operate strongly to discredit the fact afterwards 
sworn to; as in the case of bastardy, rape, robbery, and the 
like. But in general, though the sayings of a witness, out of 
oourt, may be received to impeach him, they are by no means 
admissible to corroborate his testimony. The reason is, that 
they constitute but hearsay evidence, mere declarations without 
the sanction of an oath, and because, in the case of a witness 
already laboring under suspicion, they are rarely calculated to 
increase, in any degree, the confidence due to his testimouy. 
The decitaon of the county court, rejecting the evidence pro* 
posed, was clearly correct. 



846 MUNSON V. HASTINGH3. [Vermoni^ 

The remainiag inqtiiiy relates to the kind of evidence neceo- 
saxy to prove the alleged promise. And, in order to determine 
whether the defendant's exception upon this part of the case i» 
well taken, we must lay out of consideration certain portions of 
the evidence which had a direct tendency to establish the prom- 
ise; such as the defendant's admissions, his approval of furni- 
ture, etc. The contested portion of the judge's charge relates 
exclusively to a different species of testimony. That mutual 
promises of marriage may be implied from proper and sufficient 
circumstances can admit of no doubt. But the question pre- 
sented by the charge is, whether they can be implied from mere 
attentions, though exclusive, long continued, and manifesting 
an apparently serious and settled attachment between the parties. 
It is certain that such attentions do not constitute the agreement 
of marriage, though they usually precede it. They may be of 
longer or shorter continuance, without terminating in such a 
contract. And hence the difficuliy of determining when, if 
ever, they should be admitted to furnish sufficient legal evidence 
that the contract has in fact been made. It might, at first view, 
be inferred from the verdict, that the jury must have found the 
addresses of the defendant to have been marked with every 
characteristic mentioned by the judge ; as that they were not only 
constant, long continued, and exclusive, but such as an honor- 
able gentleman would not bestow, nor a prudent lady receive, 
unless a marriage contract had been formed between them, and 
that they would ordinarily be considered, by the circle in which 
the parties moved, as conclusive evidence that such contract ex- 
isted. But, dnce the case alludes to no fact or circumstance 
upon which to predicate a conclusion that the attentions were 
in any respect such as honor or prudence would usually forbid, 
they need only to be considered in reference to the period of their 
continuance, and their influence upon the belief of friends and 
acquaintances. That they were constant and exclusive was no 
more than what is generally observed where the parties are re- 
spectable. 

The length of time was such, in this instance, as to evince a 
degree of indiscretion in both parties, and especially the plaint- 
iff, if a marriage was not agreed upon. But the law has not de- 
termined that any particular period of courtship shall be evidence 
of a marriage contract. If protracted to a needless and tmrea- 
sonable extent, it is even calculated to excite doubts in others 
whether it is finally to result in marriage. We are of opinion 
that neither the time, in this case, nor the other considerations 



Feb. 1840.] Pabk v. Bates. 347 

which I hftTO mentioned, were sufficient to justify the finding of 
an actual contract. Nothing need be added as to the probable 
opinions and belief of third persons. It is clear that to allow 
such opinions to influence the finding of this contract, as be- 
tween the direct parties to it, would be giving place to a princi- 
ple which is wholly inadmissible in other cases. 
Judgment of the couniy court reversed. 



ExpBBS Pbokisb to Mabbt IB UHNaaBBSABT to be proved In an aottonfor 
breach of snch promise, bat the aame may be inferred from the attendingolr- 
eametanoes: JoJmton t. Obufib'iw, 1 Am. Dec 102; Wightmim v. Coafef, 8 Id^ 
77; Wmard t. SUme^ 17 Id. 496; Qrtm v. Spencer, 26 Id. 672. 

Thx prinoipal gasb IB CITED «nd distingoiflhed from the one before the 
oomrt» m MuteeU v. Cwdu, 16 Oray, 685^ to the effect that a promiae of mar- 
riage may be proved by circnmataneea. 

COUJOHOKATIOH Of WlXNaSB BT KD DlOLABATIOVS 0I7T OV GOUBT: Sea 

/oAmoiit. Pafftiiuii, 11 Am. Deo. 766 and note; iSRtate t. Dt YTodT, 20 Id. 9a 



Pabk t;. Baxbs. 

[ISTamoR.aBL] 

iMMMBmun' OF A Obamtkb'b Obtaimino PoBBnsioH of the land oony^yed^ 
will support ao action for breach of the ooTenant of warranty, withoat 
proving a technical eviction. 

MXABOBS OF DaMAOBB IK AN AOTION FOB BbBAGH OF THB COVENANT OF 

Wab&antt is the value of the land at the time of eviction, withoat re* 
gard to the consideration expressed in the deed. 

AomoN for breach of covenant of vearrani^y. Plaintiff had 
never been in the actual possession of the land conveyed to him, 
but had brought an action of ejectment therefor, against the oc- 
cupant, but had been defeated by a superior title. The judge 
charged the jury that the measure of damages was the value of 
the land at the time of eviction, vrith interest thereon. The 
plaintiff had verdict. 

D. Mobinsonjjun., and U. M. Eobinson, for the defendant. 

J. 8. Eobinson and Lyman, for the plaintiff. 

By Court, Wnxuns, C. J. The defendant, upon the trial be- 
low, insisted that the rule of damages, upon a breach of the 
covenant of warranty, was the consideration in the deed and the 
interest, and no more. Whether the court gave the true rule of 
damages, in their charge to the juiy, is the question now before 
us. The argument has taken a somewhat wider range and it haft 
been contended that there has been no eviction so as to give a 



348 Pabe i;. BateSw [Venaontk 

remedy on fhe coTenont of -warranty, and Beveral cases have been 
xefened to^ where it has been said, ihezecan be no lecoTeiy on the 
covenant for qniet enjoyment unless there has been an eviction. 
Those remarks were true, as applicable to those cases. When 
the grantee goes into possession under his deed, he can maintain 
no action on this covenant, unless there is an eviction. Speak- 
ing technically, there has been no eviction here, because an 
eviction means an entry and expulsion. But there are many 
cases where an action may be maintained on this covenant, vrith- 
<mt such an eviction, when the grantee has been prevented from 
entering and enjoying the premises. In arguing the case of 
Whiibeck v. Cook, 15 Johns. 483 [8 Am. Dec. 272], the attorney- 
general, Mr. Talcot, took the ground, that, because the grantee 
could not get into possession of his land, there was no breach of 
the vmrraniy. In the case of Holder v. Taylor, Boll. Abr. 520, 
which was covenant on a lease, by the word demise, it was ob- 
jected that no action would lie, because there was no expulsion. 
The court held that the action could be maintained, and that it 
-was not reasonable to require the lessee to enter and recommit 
a trespass; but they add that if it was an express covenant, per- 
haps it might be otherwise. The case of Choke v. Hooper, 
found in 6 Yin. 427, was an express covenant for quiet enjoy- 
ment. The plaintiff set forth in his declaration, that the limds 
belonged to the king, who had conveyed them to J. S. The de- 
fendant demurred, because the plaintiff did not allege an entry 
by himself, and so could not be disturbed. The court held the 
declaration good, for having set forth a titte in the patentee of 
the king, the plaintiff should not be enforced to enter and sub- 
ject himself to an action, by a tortious act, and rendered judg- 
ment for the plaintiff. This principle was recognized in the case 
of Hacket v. Olover, 10 Mod. 142. In the case of LwdweU v. 
Newman, 6 T. B. 458, the breach alleged, was, that there had 
been a previous demise, and the plaintiff had brought an action 
of ejectment and had failed to recover, -and was never in pos- 
session. 

The case of Hawkes v. Orion, 5 Ad. & El. 367, which was 
covenant for quiet enjoyment, the plaintiff alleged an entry by 
himself, and an expulsion by the defendant; the entry and ex- 
pulsion were traversed, and the evidence was, that the plaintiff 
went with intent to take possession and was refused. Lord 
Abinger permitted the case to go to the jury, on this evidence, 
as evidence to support the issue. The plaintiff contended that 
it was an eviction in point of law; the court held the evidenci 



Feb. 1840.] Pask v. Bates. 849 

did not prove the breach, as stated in the declaration^ to mt, an 
entiy and eviction, but clearly intimated that if the facts had 
been properly stated, there might have been a recovery. In 5 
Went. PI. 53, there is a form of a declaration in an action of 
covenant where the breach assigned, is, that the plaintiff was 
hindered and prevented from entering, and was kept out of 
possession. I apprehend, therefore, that on the covenant for 
quiet enjoyment, and a fortiori, on this covenant of warranty, 
it is not necessary to state, or prove, a technical eviction, but 
the action may be maintained if the plaintiff is hindered and 
prevented by any one, having a better right, from entering and 
enjoying the premises granted. The evidence was sufficient, 
in this case, to warrant a recovery by the plaintiff on the cove- 
nant of warraniy. 

On the subject of damages, the rule has been different in 
different states, and wherever the subject has been discussed, 
many fancied inconveniences and hardships have been supposed, 
as a reason for adopting one rule, rather than the other, and, 
particularly, it has been supposed that the rule which has pre- 
vailed in this and some of the neighboring states must, in the 
fluctations and changes in value to which lands are exposed, be 
ruinous in its consequences. In answer to this, I can only say 
that the rule of damages, in actions on covenants of warraniy, 
was established at an early day in this state, as we learn from 
the case Strong v. Shumway, D. Chip. 110,^ and none of these 
inconveniences or ruinous consequences have been experienced. 
The rule is, to give the value of the land, at the time of the evic- 
tion, without regard to the consideration of the deed, and it 
may be more, or less, than the consideration; and, to me, it 
appears to be more in consonance with the principles of law, 
as applicable to other subjects^ and more just and equitable in 
its application than any other rule. 

The general rule, in all actions of covenant, is, to make the 
party good, or place him in as good a situation as he would 
have been in had the covenant been performed. The covenant 
of warraniy is both for the title and possession, and is pro- 
spective. It is similar to the covenant contained in the charter 
of feoffment, or more like the covenant contained in a fine. In 
Wotton V. Hele, 2 Saund. 175, there is a declaration on a cove- 
nant of warraniy contained in a fine, where the warraniy is 
nearly in the same words as used in our deeds of conveyance. 
It imposes an obligation on the party covenanting to estab- 

1. Drmj T. Smmnoajf ; S. C, 1 Am. Deo. 704. 



850 Park v. Bates. [Vermont, 

lish and prove a lawful right and title to the premises when 
called on legally so to do, and, in this respect, it is similar to 
the ancient warranties. Lord Ellenborongh, in the case of 
HoweU ▼. Richards^ 11 East, 633, considered the covenant for 
quiet enjoyment as *' an assurance against the consequences of 
a defective title, and cf any disturbance thereon," and that it 
is in the nature of a stipulation to indemnify. The grantor may 
know his defective title, and at the same time calculate there 
will be no disturbance, and the title become perfect, and be 
willing to take upon himself the risk of indemnifying his 
grantee. If the covenant was to convey land at any future 
time, there can be no question that the damages for breach 
would be the value of the land at the time the conveyance was 
to be made. This was said to be the rule of damages for a breach 
of a contract to convey real as well as personal estate: Hopkins 
V. Zee, 6 Wheat. 109. On the covenant for further assurance, 
Mansfield, C. J., in the case of King v. t/bneg, 5 Taunt. 418, 
intimated that a recovery for the whole value of the estate 
might be had if the other party would not convey. 

The rule of damages on the covenant for quiet enjoyment was 
evidently considered as unsettled in England when the case of 
Lewis V. GampbeUf 8 Taimt. 715, was tried. The jury, at first, 
gave the whole value of the land, including the value of the 
improvements, being three hundred pounds for the value, and 
four hundred and fifty pounds for improvements. It was 
held that the value of tiie improvements could not be recovered 
under that declaration, inasmuch as the form in which the spe- 
cial damages were assigned did not embrace those improve- 
ments. The chief justice expressed a doubt whether they could 
be recovered in any form; but I should infer the other judges 
were inclined to the opinion thati they might have been recov- 
ered if properly stated. I can find no case in the Wnglifth 
authorities in which the consideration expressed in the deed 
has been considered as the rule of damages. It can be consid- 
ered only as one evidence of value, and is no more conclusive 
in the sale of real than personal estate. Neitherin the case of 
WotUm V. Hete^ nor of Leuris v. Campbell^ above named, was there 
any regard paid to the consideration expressed In the deed. 
The rule of the civil law was similar to ours, that the seller was 
bound to make good the value of the thing sold at the time of 
the eviction, whether it was more or less than the value at the 
time of the sale, and it is said that, in the early age of the 
feudal law on the continent, the lord was bound to recompense 



FeU 1840.] Pabk v. Bates. 851 

tiis Tasaal on eyiction "wiih oiher lands equal in Talne to ihe 
yalae of the fend at the time of eyiction. The role in France 
is, or was, similar to onrs, according to Pothier. The role as 
to a recompense in value may have been different upon the 
writ of warranHa chartoB. It is certain there could be no reoov- 
«rT for the increased value in consequence of the discovery of a 
mine, or the erection of buildings, or for the increased value of 
A wardship in consequence of a subsequent descent of other 
lands to the ward if this was set forth in a plea and the 
warranty was not entered into generally. But I do not know 
that the warrantee had the whole benefit of the rise in the value 
of the land, and that he could satisfy his warranty when his 
tenant was evicted of f orfy acres of land, with tweniy acres of 
ihe same quaUty, and possibly lying adjoining the other, because 
the value had increased in that proportion. When the tenant 
availed himself of his warranty by way of rebutter, he retained 
the whole land, notwithstanding the increased value, and on 
a warranty contained in an exchange, it was said, in BuMard's 
-case, 4 Co. 122, a man shall recover in value according to the 
value which he lost. And it is said by Perkins, that if two ex- 
change, and then one aliens and the other vouches him, being 
impleaded, he shall recover in value the land given in exchange: 
"22 Yin. 140. I am aware it has been said that the remark in 
Buslard^a case -was extrajudicial; but if so, it is, at least, evidence 
of what was understood by a recovery in value in case of an ex- 
change by Lord Coke, and, on that account, is entitled to some 
-consideration. 

It may, however, be immaterial at this day, to determine how 
the value was ascertained in the writ of warranHa charUs; per- 
liaps there was no case where the land has risen in value so as 
to render the inquiry of any importance. In the action of 
•covenant, in England, it does not appear to be settled that the 
rule of damages is the consideration of the deed, with the in- 
terest, though it may be the value at the time of making the 
-covenant. Yet the rule is settled here, and we are not at 
liberty to alter it and make a new law upon the subject. The 
practical effect, under our betterment act, is only to give the 
value of the land in the situation it was in, when granted, as 
the buildings and improvements are usually paid for by the 
owner of the land when he ejects the person in possession, who 
•entered under a deed. 

The judgment of the couniy court is therefore affirmed. 



862 Lazell v. TjAZWIiL. [YermonV 

BvzonoN Nboesbabt to Mawtain AonoN vob Bbxaoh ov Ooyksaxt or 
WABBANT7: Booher y. Bell, 6 Am. Dec. 641; Otimming9 t. Keimedy, 14 Id. 
45, and note; Ferris v. Harehea, 17 Id. 782, and note; .JtoAivA ▼• OroglUm, 
19 Id. 140; King v. iTm-, 22 Id. 777, and note. 

Mbasubb of Damaobs for Bbkaoh of the C!ovbnant of Wabraittt ift 
the Talue of the land at the time of the eTiction: Ferris ▼. Harekea, 17 Am 
Deo. 782, and note 788; King v. Kerr, 22 Id. 777; MarOand v. Cfrump, 27 Id. 
230; Cumminge v. Kennedy, 14 Id. 45, and note. 

The fbincipal oasb is cited in Beebe v. Swarthwoutf 3 Qihn. 182. to the 
point that to oonstitate a breach of the oorenant of mmaity tiieve must be- 
a anion of acts of distorbanoe and lawful title. 



Lazell v. TjAzbtiTi, 

(IS TXBMOR, 4«8.] 

Lost Note kot Nbqotiablb, or not Tbansfebbed if Nbgotiabui, may be- 

reooYered on in an action at law. 
Inbkmnitt must be Given before a ABOoyEBT can be bad on a IcMfr 

negotiable inatmment actoally transferred. 
AooEprANCB of a Note on Acoount of a Pbiob Debt, is jirima yiieie a sslis- 

faction thereof. This resnli, however, will not f oUow when the note i» 

lost or destroyed. 

Assumpsit on a lost piomiflsoxy note. The aotion ma re- 
ferred, and the facts as found are stated in the opinion. Plaint* 
'€ had judgment. 

T. Hutchinson and A, liracy, for the defendant. 

A Converse and O. P. Chandler, for the plaintiflT. 

By Oourt, Bsnihett, J. It does not appear, from the report 
itself, that the affidavit of the plaintiff was admitted in evidence 
to prove the loss of the note. It is not so stated in the affidavit 
of the defendant's counsel, and the affidavit of the ehairman of 
the reference expressly states, that it was rejected. The court 
below, then, were fully justified in finding the fact of its rejec- 
tion, and it would indeed have been strange if that court had, 
upon the application of the defendant, set aside the report, sim- 
ply on the ground that the referees had omitted to report their 
decision as to the admissibility of the affidavit of the party, 
when that decision was in his favor. The report finds that the 
note was given for lands sold and conveyed to the defendant, at 
the same time the note was given , and also the loss of the note, a de« 
mand of payment after it became due, and a refusal by the de* 
fendant. The referees are the sole triers of the facts, and their 
finding must be conclusive upon the parties. The law is well 



^ 



Feb. 1840.] Lazell v. Lazell. 353 

ButUedy ihat, when a note not negotiable, or if negotiable by 
being payable to order, not negotiated, is lost, an action at law 
may be maintained on the note, on proof of its loss, to recover 
its contents. If the note is shown to have been negotiable and 
actually negotiated, and the evidence shows merely the loss of 
the paper, and not its destruction, the plaintiffs remedy is in 
chancery, where the court will require the pariy to give the 
maker a sufficient indemnity against the outstanding paper, be- 
fore they grant him relief. If the note or bill is payable to A. 
B. or bearer, or to the bearer, and it is lost, the remedy in such 
case must also, probably, be in chancery, since the legal title to 
such paper passes by delivery: See Bayley on Bills, 413, 414, and 
notes; Chit, on Bills, 293; PirUard v. Ibckinfftony 10 Johns. 104; 
McNair v. OUbert, 3 Wend. 344; Wds/cyrd v. Wat9on, 4 Bing. 
273; Bawley t. BaU, 3 Cow. 303 [15 Am. Dec. 266]; Kirby t. 
Sisson, 2 Wend. 560. The referees report that no evidence was 
given tending to prove whether the note was payable to order or 
bearer or not. In PirUard v. TackingUm it did not appear 
whether the note was negotiable or not, and the plaintiff was 
permitted to recover at law. The same principle is sustained 
by the case of McNair v. OiJberi. 

These cases proceed upon the ground, that it must, affirm- 
atively, be made to appear that the paper was negotiable and 
had been in fact negotiated, or else payable to bearer, so as to 
pass by delivery in order to defeat a recovery at law, in the case 
of a loss of the instrument. If, in the absence of any proof, we 
were to hold that the note was to be considered negotiable by in- 
tendment, in the first instance, yet, it would be going too far to 
intend it was payable to bearer, or that it had been in fact nego- 
tiated by the payee, prior to its loss. It is said the plaintiff can 
not recover on the note, either on the first or second count, in 
his declaration on the ground of variance. Suppose it be so, 
what good reason can be shown why he may not recover on the 
fourth count? Though, perhaps, the better opinion may be 
that the acceptance of negotiable paper, on account of a prior 
debt, is priTna facie a satisfaction, and that no recovery can be 
had on the original indebtedness, yet this is to be taken as 
an extinguishment of the original indebtedness, only sub modo, 
and is not to be extended to a case, in which the note is lost, or 
destroyed. But, in this case, the note was not given on account 
of a prior existing debt, and was not shown to have been nego- 
tiable; and if that was to be the intendment, still, I think the 
plaintiff has given a sufficient account of the note, to prevent its 

▲m. Dm. Vox. XXXVI— 39 



864 Suffolk Bank v. EIidder. [Vermont, 

operating as a meiger of the original indebtedness: Holmes ct aL 
T. D'Camp, 1 Johns. 34 [3 Am. Dec. 293]; FirUard v. Ihctin^ 
ton, 10 Id. 104. It is said the recitals in the deed, by which 
the plaintiff admitted he had received full satisfaction for the 
land sold to the defendant, should preclude a recovery on this 
count; but these recitals are but prima facie evidence of the 
payment of the consideration, and are subject to explanation ; 
Beach v. Packard, 10 Vt. 96 [33 Am. Dec. 185]. The referees 
were the judges of the weight of this testimony, and they have 
found that the note in question was given towards the land. 

We then think, without giving any opinion as to the plaint- 
ijps right to recover on the money counts, that he may recover 
on his fourth count, and the judgment of the county court is 
afibmed. 



WHUf AW AonON MAT BE MaINTAIXSD ON A LoST OR OlSTBOYSD NOTS, 

and the neoeMity of giving indemnity bonds, are sabjeote which will bo found 
disooned in the notes to Blade v. Nokmd, 27 Am. Deo. 126, «nd JBdwanU t. 
McK^ 18 Id. 474. See, also, Ohaudroin y. HwU, 20 Id. 00, and the prior 
in this series cited in the note. 



Suffolk Bajsik v. Kiddbb. 

113 VkSMOMT, 464.] 

Pinal Statutes or Ohb Statk ars not in Foboi beyond the Umits of 
the state which enacted them. 

CONT&AOIS ARB GONSTBUSD IN AOOOBDANOB WITH THE LbX LoOI, bot the 

remedy thereon is governed by the lex fori. 
Statute or Massachusetts, providing that in a suit on a nsnrioos contract, 
recovery most be limited to the original demand, less three times the 
amonnt of the nsnrioos reserve, applies to the remedy only, and has no 
force in Vermont. 

Wbit of error to reverse a judgment rendered in an action on 
a promiaaory note for five thousand ^"ve hundred dollars, made 
in Boston on October 27, 1836, payable at the Suffolk bonk, six 
months from date. The plaintijQEis were indorsees, and sue the 
makers. Defendants set up the defense of usury, and claimed 
that the recovery was limited by a statute of Massachusetts, 
which, together with the further facts, are stated in the opinion. 
Verdict was given for the plaintifib for the amount of the note, 
less three times the amount of the usurious reserve. 

T. HiUchinson, for the plaintiff in error. 

A. Tracy and J, Oonwer^e^ for the defendants in error. 



Feb. 1840.] Suffolk Bank v. Eiddeb. 355 

By Court, Bennett, J. It has long been settled law, that the 
penal statutes of one state have not ilie force of law beyond the 
limits of the state which enacted them; and it is contended that 
the statute of Massachusetts, now in question, is of that char- 
acter. It is sometimes difficult to determine the precise class or 
division to which a statute may belong, and the divisions them- 
selyes seem sometimes not to be very well marked; but it is not 
necessary, in this case, that we should decide to which class of 
statutes the one now in question belongs. 

The second section of the statute, set forth in the plea, en- 
acts, expressly, that no contract containing usury shall be there- 
by rendered void, but provides that whenever any action shall 
be brought upon such contracts, and it shall appear upon a spe- 
cial plea to that effect, that the contract was usurious, the de- 
fendant shall recover his own costs, and the plaintiff shall for- 
feit three times the amount of the whole interest reserved, and 
shall have judgment for the balance only. Three times the 
amount of the whole interest is to be deducted from the plaint- 
iff's demand. This statute can have but one construction. It 
declares that the contract shall not, by means of usury, be ren*- 
dered void; and, in construing and giving effect to a contract, 
the lex loci must govern the rights of the parties; but the lex 
fori obtains as to the remedy. We must administer justice ac- 
cording to our laws, and agreeably to the forms prescribed by 
our legislature, or the practice of our courts. We can not, in 
respect to the remedy, notice the statutes of the state in which 
the contract was made. In the provincial government of Lower 
Canada, they have an act which provides that suits shall be 
brought, on notes of hand, within five years, or they shall be 
considered as paid and discharged, if the debtor shall make 
oath of their payment. In C artier v. Page, 8 Yt. 14(), it was 
held that this statute related to the remedy, and prescribed the 
mode of proof, and could have no effect in this state. So it is 
with all statutes of limitation. The legislature of Connecticut 
passed a law which prohibited attorneys, sheriffs, etc. , from pur- 
chasing choses in action, and among other things, provided that 
the defendant might, when sued, file his motion, stating that he 
believed the demand was purchased contrary to the provisions 
of the act, and praying the court to inquire into the truth of the 
same; and that if, upon inquiry, it should be so found, the 
plaintiff should become nonsuit. In ScovUle v. Canfield, 14 
Johns. 338 [7 Am. Dec. 467], this statute was interposed as a 
defense in a case which arose in Connecticut, both parties at 



356 Chamberlain u Willson. [Vermont, 

the time being citizens of that state, and it was held that it 
could have no effect in New York. 

The statute of Massachusetts is not, in its terms, professedly 
addressed to the courts of other states, and, had it been, it 
must have been nugatoiy. It says, " whenever an action shall 
be brought," etc. This must evidently refer to actions in their 
own courts. The effect of the statute is to leave the usurious 
contract in force, but bars the plaintiff from a recovery beyond 
the balance due, after deducting treble the whole amount of in- 
terest reserved in the contract. So far the statute, upon the 
proper plea, bars the plaintiffs right, and is as much a statute 
relating to the remedy, as one which bars an action after six 
years. The statute also gives the defendant his cost. Thia 
part of the statute so dearly relates to the course of proceeding 
in the courts of MassadiusettSy that there has been no attempt to- 
oany it out in this case. 

We are the more confirmed in our views of this case from a& 
examination of other sections of this act, which are not brought 
to view by the pleadiogs in this case. By the third section 
there is a provision that if the whole demand is paid without 
any deduction, the party paying it may recover back the part 
forfeited, either in a suit at law, or by bill in chancery; and, by 
the fourth section, on the question of usury, both parties may 
be witnesses. It is evident, then, from all the provisions of thia 
act, that it was the intent of the legislature of Massachusetts to> 
regulate the course of -proceedings in their own courts. Aa 
such, it must be left to have its operation within the jurisdic- 
tion of that state, and can not furnish a rule for the courts of 
this state. 

The judgment of this court, then, must be, that there ia 
error in the record and proceedings of the county court, and 
the judgment of that court is reversed. 



Lex Loci Govbknb id determiniiig the rights of the partiee to a coatcmoir 
Ramaey v. iStevefuoH, 12 Am. Deo. 472; L^neh v. Pbatlethwaite, 19 Id. 485, 
and note. See, also, Tauro y. Castin, 9 Id. 680; ScovUle v. Cfm^/SM, 7 Id. 
407; Malpica v. McKown, 20 Id. 279; Kmg v. JTanmrn, 26 Id. 486, and 
cited in the note thereto. 



GHAMBEBIiAm V. WjLUBOS. 

[IS VsBifoiT»481.] 

Wmrifls NuED not Akswrr a Qubshon, when by so doing he will be «a»> 
posed to a prosecution for a crime, or a penalty. 



March, 1840.] Chambeblain v. Willson. 357 

RxFOsnro to TBsnrr conoerkiko Mattkbs Tbnbiko to Crdonati himaell, 
is a privilege which % witness may waive. If he waive the privilege, he 
most sabmit to a fall cross-examiiiation. 

SXATUIENT Bf ▲ WiTNISS, UKDER OaTH, THAT Hb GAK KOT TbSTIFT with- 
out crimiiiating himself, is sufficient proof of the same, unless the court 
is satisfied that the witness is mistaken, or acts in bad faith. 

Tbispabs. On the trial a witness was asked by the plaintiff 
to state what he knew, or what the defendant had stated to him 
about the trespass, but he refused to answer on the ground that 
by so doing he would expose himself to ptmishment. The 
court sustained the witness, and defendant had verdiot 

A. Underwood, for the plaintiff. 

Parher aud Austin, for the defendant. 

By Court, Bbdvibld, J. It is well settled, that a witness is not 
bound to answer any question, the answer to which might tend 
to criminate him, i, e,, expose him to a prosecution for crime, or 
penalty. It is doubtless true, that this is not the most effectual 
mode of shielding the witness; for the mere fact of claiming the 
privilege tends Tery much to show him guilty of the offense. A 
rule that the testimony should be given in all cases, but should 
neyer after be used for the purpose of procuring a conviction of 
crime, would be more conducive to the reasonable ends of jus- 
tice, and at the same time afford fall protection to the witness. 
But such is not the law. It is well settled, that the testimony, 
if freely given, may be afterwards used against the witness. I 
know indeed of no rule to exclude the testimony being given in 
evidence against the witness, even in a prosecution of a criminal 
nature, although the witness were compelled to testify under 
the requisitions of a court of justice. It is obvious, then, that 
the only security of the witness is in silence. . The rule should 
be so administered as to afford full protection to the witness, 
and at the same time escape simulated excuses. 

It is the privilege of the witness, and he may waive it. And 
if he submit to testify about the very matter tending to criminate 
himself, without claiming his privilege, he must submit to a full 
cross-examination. In 22 Eng. Com. L. 244, n. a,^ Lord 
Tenterden, C. J., said, the objection belonged to the witness, 
and he would not allow the counsel to argue it. In the case of 
Dixon V. Vate, 11 Id. 391,' the witness, before testifying to the 
principal matter, was cautioned, and told that he was not obliged 
to testify, but he still chose to go forward, and the court would 

1. Thomas t. Newton, Moo. & M. A8; 33 Eng. Oom. L. 468. 

2. 12 Eng. Com. L. 167; 1 Csr. k P. 278. 



858 SPAULDmo V. Chamberun. [Vermoiit^ 

not suffer him afterwards to retract his waiver of the privilege. 
In all cases, where the question, tending to elicit matters involv- 
ing the witness in a suspicion of crime, first arises on qross- 
examination, the witness is still allowed his privilege, unless he 
has understandinglj waived it: Rex v. Pitcher, Id. 823.' In 
this latter case the question seemed to be wholly collateral to 
the principal issue, and tending rather to disgrace the witness, 
than to show him guilty of crime. But the rule is well settled, 
that the privilege must be claimed by the witness. Ordinarily, 
I apprehend, when testimony is expected from a witness, so sit-, 
uated as to be interested in this privilege, he should be told, 
either by the counsel or by the court, at the suggestion of the 
counsel, that if the matter will tend to criminate him he is not 
obliged to testify; but if he begins, he is then bound to make a 
full disclosure. 

From this view of the subject, it is obvious that the witness 
must first deteimine whether he can make a full disclosure with- 
out stating any &ct, tending, in any degree, to criminate him- 
self. If he informs the court, upon oath, that he can not testify 
without criminating himself, the court can not compel him to 
testify, unless they are fully satisfied such is not the &ct, t. e., 
that the witness is either mistaken, or acts in bad faith, in either 
of which cases the court should compel the witness to testify. 

From the facts detailed in the bill of exceptions, in the pres- 
ent case, it is vexy certain the court did right in not compelling 
the witness to give testimony, and their judgment must be 
affirmed. 



Tbs Pbivilbqb or ▲ Witnxss in refosiiig to aotwer qaeitioiis wldoh taad 
to orioimatehiniflell, ii folly diaoiiMed in the note to iVfat v. Bmghr^ 21 Am. 
Deo. 5Z . 



SpAULDiNa V. Ghambbrldt. 

[la VxBiioaT, 638.1 

RioOBD or ▲ JusnoB or thb Pxacb is as Ookolusivb as that of any othoi 
oonrt. It oan be tried by inspection only, and is oondiiBiYe of eveiy faet 
stated therein, until regularly set aside. 

Tbxspass for false imprisonment. Defendant justified under 
an execution issued by a justice of the peace. Plaintiff offered 
evidence to show that the original writ in the action in which 
the execution issued, had been altered by the erasure of one jus- 

1. 12 Eng. Com. L. 59; 1 Oar. ft P. 86. 



March, 1840.] Stevens v. Beach. 359 

tioe'8 mane, and the inflertion of the name of the one who rendered 
the judgment. The court excluded the evidence. Verdict was 
given for the defendant. 

T. BarOett, for the plaintiff. 

W. l^piham and O. C. Cahaon, for the defendant. 

By Oonrt, Collaxxb, J. The defendant justified under the 
judgment of a justice of the peace, and he showed the judgment 
by a duly certified copy of the record. The plaintiff proposed 
to show by parol, in effect, that there was, in fact, no such pro- 
cess or judgment. A justice's record is as conclusive as that of 
any other court. It can be tried by inspection, only, and is 
conclusive of every fact stated in it, until regularly set aside. 
This record showed that a writ, duly signed by this justice, 
issued and was served and a judgment by him was duly ren- 
dered. Therefore the plaintiff could not be permitted to prove 
that the writ, when issued, was not signed by him, or to prove 
the judgment was not so rendered. 

Judgment affirmed. 



SlEYENB V. BbAOH. 

[13VtaMOaT,68B.] 

Q umr r mwa hat bb Asked upon GBOss-xxAimrATioF to tert the aoonrMy 

or voraetty of a witoess. 
WmnsB oAir hot be Impbachbd bt Snownro thb Faisitt of his te»- 

timony oonoeming facta collateral to the iasne. 
OcxanHUANOB or a Tbial by a jiutioe of the peace, made in the abaenoe of 

the parties, iu not binding. 

Audita quibela to vacate a judgment of a justice of the peace. 
It appeared that at the time tiie case in which the judgment was 
rendered was set for trial, the plaintiff herein did not appear. 
The justice continued the cause until eleven o'clock. Upon the 
arrival of that hour, and in the absence of the plaintiff, a de- 
fault was ordered. Before that order was entered, however, 
Steele, the attorney for the plaintiff, appeared, and demanded 
that the default be set aside. This the justice refused, and 
judgment was accordingly entered. The further &ctB appear 
in the opinion. 

No appearance for the complainants. 

Ira Toung, for the defendant. 

By Court, Bedfeeld, J. In this case, the plaintiff's witness, 



SCO Stevens v. Beach. [Yermonw 

Steele, had testified that, in pa»mng a oertain point on the road, 
he made no delay, and did not torn aside from the main road. 
A witness on the part of the defendant, testified that, at this 
point, Steele's horse did tarn aside from the main road, and 
stood grazing for a long time. The plaintiff then, in reply, 
offered to prove by witnesses who had not before testified, that 
Steele's horse did not tarn aside from the main road, and the 
ooort rejected the testimony. If the fact, whether Steele's horse 
tamed aside from the road to graze, had been directly in issae 
in the case, the testimony offered by the plaintiffs mnst have 
been received; but that &ct was no way matierial to the principal 
issue. It could not be important, except to impeach the de- 
fendant's witness or corroborate the plaintiff's. It is no doubt 
competent for the pariy to put almost any question, upon cross- 
examination, which he may consider important to test the accu- 
racy or veracity of the witness. But if the question is in regard 
to a fact collateral to the issue, he must be content with the an- 
swer of the witness, and can not contradict him by independent 
proof. If this were allowed, a single issue would branch out 
into an indefinite number of collateral ones: 1 Stark. Ey. 182, 
6th ed., and authorities referred to. Hence, if in regard to any 
of those collateral questions, the witnesses should not agree, it 
is not, for the reason aboTC stated, competent for either party 
to adduce evidence in regard to such collateral fact. The ques- 
tion put to Steele, for the purpose of testing his consistency, 
might be perfectly competent, but the testimony given by the 
defendant's witnesses upon this point, as it had no tendency to 
prove the main issue, was not competent, and, had it been ob- 
jected to, would have been rejected. Hence, as Steele could not 
legally have been impeached by this collateral jtroof , neither 
could he be supported in that manner. 

In regard to the order of the justice, that the case should 
stand open until eleven o'clock, it is obvious that it was made 
with reference to the time, as indicated by the chronometerihen 
before the eye of the court, and not to the apparent or true time, 
as determined by meridional observations. If this were not so, 
even, it was an order no more binding upon himself or the par- 
ties, than a mere mental resolution, which all mankind are per- 
mitted to forego at will. 

Judgment afiSrmed. 

Impeaohksmt or Wmreas.— For a fall diaonarion of this subject, tea th« 
note to Blue v. Kitby, 15 Am. Deo. 96, and the cases cited therein. 



Aug. 1839.] Atkinsons v. Allen. 361 

Ategqiboi9b v. AjLLsax. 

[13 VxBMoarr, 619.] 
laouMFwm rcnr of a Jubok is no Qboukd for ABBasitnra Judomibt, al* 

thooi^ it may bo good caase for a new triaL 
iMFAKXLDro ▲ JufiOR ON A FoBMXB Trxal, if no Terdiot or othar oAp W" 

■Ion of opinion is gi^en, is not a sufficient groond for challenge. 
JuDGiOEHT IN AN AonoN OF EjxoTMKNT Can not be collaterally attacked 

by any of the parties or their privies; bat strangers may show that saeh 

Judgment was frandalent and coUnsive, and obtained by an attorney 

without any authority from his assumed dient. 

EjBomziT. Plaintiiffl deriyed their title from one John At- 
Idnson^ who, by himself and grantees, had been in possession 
of the land from 1806 until 1829, when they were evicted by one 
Alpha Allyn. They did not connect their title with that of Mnr- 
xay, the original owner. Defendant ofifered in evidence the 
TBcord of a judgment obtained in 1888, in favor of Murray, 
■against Alpha Allyn, for the possession of the premises, and 
showed that he was in possession as the agent of Murray. 
Plaintifiis then, against defendant's objection, gave evidence to 
«how that such judgment had been obtained without the consent 
•of Murray, and was collusive and fraudulent. The further facts 
appear in the opinion. Plaintifb had verdict. 

Johnson, and Cooper and Bedfield, for the defendant 

Fletcher and BarUeU, for the plaintiflfs. 

BjOourt,BEDnBU>,J. The &ct that the county court suffered 
41 juror to sitin the trial of the cause, who was legally incompetent, 
was no ground for arrestmg the judgment. It was undoubtedly 
.good ground for a new trial; and, probably, would have been 
.good ground for reversing the judgment on exceptions, or writ 
of error: BoardmanY. Wood, 3 Yt. 670. But the mere fact that 
A juryman sat in the case, on a former trial, or had formed an 
-opinion, if he had not given a verdict, or in any other way ex* 
pressed that opinion, constituted no sufficient ground of chal* 
lenge. This is very satisfactorily shown by the chief justice, in 
the opinion delivered by him, in the case last cited, where he 
goes into an elaborate revision of the decisions upon this sub- 
ject. The rule is adhered to in the case of French v. Smith, 4 Yt. 
-863 [24 Am. Dec. 616]. In the present case, it did not appear 
that the jurors had even formed an opinion. 

The only remaining objection made to the proceedings in the 
-court below is, that the plaintiffs were suffered to attack the judg- 
ment in favor of Charles Murray against Alpha Allyn, collator- 
•ally, by showing that it was not bona fide, but colorable merely. 



862 Atkinsons u Allen. [VermonV 

got up by Allen to shield himself and bis tenant, the defendant 
— ^Mtmaj haying no knowledge of the proceedings. It i» 
obvious, that as the plaintifBs, and those under whom they 
claim title, had possession of the premises prior to Alpha Al- 
lyn, and were forcibly ousted by him, they can upon this first 
seisin only, recover of Allen and all who have entered, either 
under him, or upon his possession, whether with or without his 
consent, unless they can shield themselves under a title older 
and better than that of the plaintifEs. This they attempted by 
force of the judgment in &vor of Murray, the original proprietor, 
against Alpha Allyn, he being put out of possession, and the 
present defendant and those under whom he claims title, being- 
put in under color of this judgment. This judgment the plaint- 
iffs were permitted to avoid, by proof addressed to the jury, in. 
the manner above stated. As the plaintiffs were neither parties, 
nor privy to this judgment, and could have brought no process or 
suit whatever to reverse or set it aside, they must be permitted to 
avoid the effect of the judgment in this manner, if at aU. The^ 
rule that a judgment of a court of competent jurisdiction i» 
conclusive, until reversed or in some manner set aside or an- 
nulled, and that it can not be attacked collaterally, by evidenoe^ 
tending to show that it was irregularly or improperly obtained, 
only applies to parties and privies to the judgment, who may 
take proceedings for its reversal, and in no sense extends to- 
strangers. 

It is obvious, if the &ctB found by the jury in this case are to- 
be regarded, that the defendant is the tenant of Alpha Allyn, 
and has no more connection with the titie of Murray, than if ha 
had attempted to show titie from him, by means of a forged deed. 
And it is not, for a moment, to be tolerated, that the rights of 
parties to the titie of lands, are to be shifted and postponed, to- 
their juniors, by merely colorable proceedings of this character. 
This mode of redress has always been allowed to strangers or 
third persons: Dticheaa of Kingston's case, 11 State Tr. 230; 
Crosby v. Leng, 12 East, 409; lAoyd v. Mdddox, Sir Fr. Moore, 
917; 11 State Tr. 262; 1 Stark. Ev., 6th ed., 259. 

The judgment of the couniy court is affirmed. 



Collateral Attack on Judoxert: See note to Niuon ▼. BUdtdeU^ atUe^ 
331, and oases oited. 

The fbinctpal case is cited in IngaUs v. Brooks, 29 Vt. 400; W%tUam» v» 
Martin, 7 Ga. 382; WUhdmi v. Lwnard, 13 Iowa» 342; KiUredge v. Emermm^ 
16 N. H. 264, to the point that a frandnlent jadgment may be attacked ool* 
laterally by third persons. 



Aug. 1839.] Blood u EKoa 363 

Blood v. Enob. 

[13 YkBMOirr, esS.] 
OollTBAOr fOB THB PSBIOBXANGB OV WORK AND LaBOB HAT BB RMmW PB l» 

by a naked agreement to that effect. 
Rebcibsion of a Cohtbact ts a QcTEanoN of Fact for the Jury. 
QuAiTTnif Mbbutt mat bb Rboovbrbd for work done under a special oontraet 

open the reeoiadon of the same without any fanlt on the part of tha 

plaintiff. 
Mbasubx of Damages, in buoh Oasb, is the Talae of the labor at the prioa 

agreed upon, lees whatever damage the defendant has suffered by reason 

of the faOure to complete the contract. 

AflsuifFSEr in two counts. The first count set forth, in sub- 
stancsy that plaintiff contracted to clear a certain piece of land 
for defendant, at the rate of six dollars and fifty cents per acre, 
by the first of NoTcmber, 1886. That in consideration therefor 
and as part payment, defendant sold and deliTered to plaintiff a 
yoke of steers, which were to become his property upon the 
completion of the contract. There was also an allegation of the 
breach of this contract by the defendant, in retaking the yoke 
of steers, and of part performance by the plaintiff. The second 
connt was for work and labor in common form. Plaintiff had 
Terdict. 

Cooper and BedfiM, for the defendant. 

C. W. Prentisa, for the plaintiff. 

By Court, Bedhbld, J. The defendant complains of certain 
parts of the charge of the county court. 1. The jury were told 
they might give ayerdict for the plaintiff, on the ground that he 
was released or exonerated from further proceeding in the work, 
by the mutual agreement of the defendant and Ha^rrison Blood. 
Of the propriety of this part of the charge there can be no doubt. 
It is always competent for the parties to rescind a subsisting 
simple contract by a naked Bgreement to that effect. Whether 
this was the intention of the parties, is to be determined by the 
jury from what passed between them. 2. The jury were told, 
that if the defendant interfered and took the cattle away, with- 
out just cause of dissatisfaction, this would be such a yiolation 
of the contract as would justify the plaintiff in abandoning the 
contract. Of this, I apprehend, there can be no doubt. If the 
defendant violated the contract, on his part, and by taking away 
the cattle, without cause, put it out of the plaintiff's power to 
proceed with the contract, he must be permitted to rec'over for 
the labor he had performed. Whether the defendant acted 



364 HABBisoir V. Edwaeds. [Vemiont, 

pricioiiflly and without good reason, was a question for the juiy^ 
and which they have determined against him, which determina- 
tion can not be revised here. 

Upon the general ground, too, that plaintiff had performed 
labor on the defendant's land, which must go for his benefit, and 
which the plaintiff could not remoTC, he was entitled to recover 
as much as he had, upon the whole, benefited the defendant: 
Dyer v. Jones, 8 Vt. 205; Heywood v. Leonard, 7 Pick. 181.' The 
rule of damages, in these cases, seems to be to allow for the 
labor at the price agreed, and deduct the defendant's damages, 
which was, substantiallj, the rule giyen to the jury in this case. 
So that upon any view of the case, we do not perceive how the 
defendant had any just cause of complaint, so far as the charge 
was concerned. The defendant ofSared to prove that, at the time 
the plaintiff left the country it was ** reported" he had absconded. 
The fact whether he had absconded or not, was wholly imma- 
terial, if he had left some one to fulfill this contract, which was 
the fact, and which the defendant learned before he took the 
cattle away, but that &ct could not be shown by common report. 
We think the court below conmiitted no error. 

Judgment affirmed. 

Bboovxbt on a Quamtuk Mxbuit when there is a special oontnust: See 
Merrill ▼. Ithaeaeie. R, B., SO Am. Dec. 130, and the prior eases in this saiifls 
cited in the note thereto. 

Tbs panrciPAL casb is oitbd in HoUmet v. Doame, 9 Cosh. 138, to the 
point that a contract may be rescinded by the yerbal agreement of the parw 
ties, and a new one established haying the former one as its basis, withoat a 
further consideration. 



HaBBIBON v. EDWABDa 

[13 TSBMOMT. 048.] 

pBOMnaoBT NoTi PAflsZKO ST Delivebt, will be presumed to have corns 

into the possession of the holder before maturity. 
Patxxnts AiADB ON A Pbomissobt Nots bxvobb Matubitt can not be 

ofibet against a bona fide holder for value, whose title accrued before the 

note became due. 
Law or the Place whebb a Ck>NTBACT is to be Pebvobmbd govenis in 

determinlog the rights of the parties to a contract entered into in one 

country to be performed in another. 
Lex Fobi Govebns in DBTEBMnoNo thb Modb or Tbzal, induding the 

form of pleading, the quality and degree of evidence, and the mode dt 



1. Hmffm Ti ▼. Lmnmr d ; B. 0., 1:0 Am. Dm. 908^ 



April, 1840.] Habbison v. Edwabd^ 365 

Assumpsit on a promissoiy note brought by plaintiff as holder. 
The note declared on -was executed in the state of New York, 
where the parties resided, payable to Zuriel Waterman or 
bearer, for fifty dollars and interest, dated November 12, 1882, 
and payable on February 1, 1885. Defendant set off a prom- 
issory note, dated Februaiy 7, 1882, given by Waterman to the 
defendant, for one hundred and forty-five dollars and ninety- 
eight cents, payable in August, 1882, and introduced in evi- 
dence a receipt in full for aU demands, executed by Waterman 
to the defendant, dated April 6, 1888. Plaintiff had judgment. 

8. A. WtUard and L. P. Poland, for the defendant 

ff. P. Brmihy tois the plaintiff. 

By Court, Bxdtikld, J. . Although it does not appear in 
proof, in this case, at what time the note now in suit, came into 
the hands of the plaintiff, the note, passing by deliveiy, will be 
Iiresumed to have come to the plaintiff while it was still cur- 
rent, and before its maturity. Under this state of facts, by the 
rules of the common law, which obtain in the state of New Yotk, 
the defense offered can not prevail. No payment made to the 
payee of a negotiable promissoiy note, while the same is not 
yet overdue, will avail the maker of the note, as against a Jxma 
fide holder for value, whose title accrued before the note became 
due. But by the law of this state, then in force, such de- 
fenses would avail the maker, although the law is otherwise in 
this state, at the present time. The defendant insists, that this 
law of Vermont will now avail him in his defense; but the court 
think otherwise. All the parties to this note, at the time of its 
execution, negotiation, and payment, resided in the state of New 
York, where these several contracts were executed. It is obvi- 
ous, then, that the law of that state must govern those incidents. 

It is a well-settled rtde, in regard to the construction of con- 
tracts, that their validity and extension, as well as performance 
or release, must be determined by the law of the place of con- 
tract. These incidents are to be determined by that law, for 
the reason that the parties are presumed to have contracted 
with reference to that law only, and, to determine these matters 
hj the law of any other place, would be to contravene the prob- 
able intention of the parties. Hence, when the parties, al- 
though contracting in one country, are domiciled in another, 
where the contract is to be performed, the lex loci domicilii will 
prevail. And when the parties enter into a contract in one 



366 Wilson u Hoofer. [Vennont^ 

place, to be performed in another place, the matters of payment, 
tender, or release, will be goyemed by the lex loci aokUionis. 

It is true, indeed, that the mode of trial, bj which is meant 
the form of pleading, the quality and degree of evidence, and 
the mode of redress, mnst always be determined by the law of 
the place of trial. No forum, in which a remedy is given to 
foreigners, or upon foreign contracts, is expected to adopt the 
forms of trial of the foreign country. Hence, in the present 
case, the mode of pleading or proving this payment or set-off,