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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, , 0 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 ChrimiaalUm 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 Bochaa
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
Pretty 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
Vbnm 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.
BsQDEBiw 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. Jwddoc*. . 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-eovertt 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 pi'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 possession 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-
decidon 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 preserve
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 territory 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 properly 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 Dbwhoi *!>.— 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. DnmmtnA 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. DetpreemXt 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 therefrom; 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. Fortmam ; 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. Cumber ▼. 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. JLatgrewce, 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 ▼. Crowtktr.
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 refenced 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, OoKOLUMVsmaB 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 prupeciy, 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 Houaeman
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 prsa
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 possession, 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 coDstituting
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 LomMama 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
respect 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 corporation 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 perform 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 poaaeaoion 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.
PaiviTi 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. IWwe, 29 U. 4fl2| Ptmuffiwtmla 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 antfaoiitiss,
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 Cowsmtuts 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. JHdemnm, 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 previonaly re-
ported in thia aeriaa will be foand.
Babkwbll v. Magbath.
[1 MoHuuuora L4W, 174.]
OmoMvnov 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 OoKJUHOTivKLT 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 possession.
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
impanftl 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, 0 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 between 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 luaetvatioo
▼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 poaaearion, 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«
posseesion 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, becaoae 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
ytop&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 neoessaries; 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 recoyer 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 ▼. M9$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, 0 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 pwperty. 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
pwcnee 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 Eubuution 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 between 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.]
Qumrrmwa 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.]
laouMFwmrcnr 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 oApW"
■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 RMmWPBl»
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 ▼. Lmnmrd ; 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,
must be determined by our law now in force, and not the law
in force at the time the transactions happened; but the effect of
the defense in precluding a recovery, whether as a payment or
ofSaet, must be determined by the lex loci ooniracius.
Judgment affirmed*
Lex Loa Gontbaotub, wmor Govxbhb in detenniniiig the lights of
parties to a oontnot: See the oases cited in the note to Si^blkBamkT, Kidder^
anUt 3H.
Lex Fobi Govxbnb in DxriBMiNnro thb Bxmsddb to a oontnot: De
Sobrjf y. De LaUtre, 8 Am. Bee. 535; SccviUe v. Cku^Uid^ 7 Id. 467; A^
water v. Toimuemd^ 10 Id. 97; Chdkh v. Loder, 23 Id. 711.
Wilson v. Hoopbb.
[13 Vkbmoxt, 663.]
CsAKOX OF Possession of Pxbsonal Pbopebtt apon a sale 'thereof is neo-
essary, in order to protect the rights of the vendee.
PO0BB88ION IS SuFFiciXNTLT CHANGED upon the Sale of a farm with the per-
scmal property thereon, upon which neither of the parties reside, if the
vendee records his deed, enters upon the premises, and assumes the en«
tire control thereof.
VxNix>R AssiSTiNO A Vendxe TO Thbbsh G&ain in a bam, being part of
the property conveyed, is not such a retention of possession as wiU ren-
der a sale fraudulent and void as to the creditors of the vendor.
Tbespass for certain personal property. The defendants at-
tempted to justify the taking by virtue of a writ of attachment
in favor of the defendant Hooper against Jotham Wilson, the
vendor of the property. The futher facts appear in the opinion.
Defendants had verdict.
J. Sawyer, for the plaintiff.
Zr. B, yUaSy for the defendants.
By Court, Beivnett, J. The rule of law that requires a sub-
stantial change in the possession of personal property, upon a
JLpiil, 1840.] Wilson v. Hooper. 367
fialdy in order to protect the rights of the yendee, is one of pol-
icy, and upon no other ground can a court be justified in hold-
ing a sale fraudulent, per se, which, to a jury, is proved to be
^fona fide, and, in fact, free from the imputation of any fraud.
It may well be supposed that every person, so long as he is the
•owner of property, needs, for his own conyenience and use, the
posseesion of it, and if upon the sale, the vendor is required to
surrender up the possession, it will be a great clog upon fraud-
^ent sales, and tend to prevent a collusive credit. Though
many of our sister states have repudiated the doctrine of fraud-
tdent sales, per se, yet experience shows it to be a doctrino
founded in the soundest poliqy, and from which we have no dis-
position to recede. It should, however, have a reasonable ap-
plication, and be so applied as to cany out the ends of the rule,
and prevent the mischiefs which it was intended to prevent, and
no further. Hence, our courts have held that it does not apply
to the sale of such property as is exempt from execution, nor to
property in the hands of a bailee, at the time of the sale, the
vendee having given him notice of the sale. The only question
in the case is, do not the &cts reported in this bill of exceptions^
show such a change in the possession of the property, which L
the subject of this suit, as a sound application of the rule re-
•quires? The proi>eziy was conveyed to the plaintiff by a bill oi
sale, on the fifth day of October. The farm upon which tho
property was located, was conveyed to the plaintiff by deed^
bearing date day of October, but acknowledged on th^
fourth, and recorded in the forenoon of the sixth of October,
and the pro]>eziy was attached on the evening of the sixth. Thw
vendor did not live upon the farm conveyed, and the case find:*
that the plaintiff had entered upon the premises, though he di J
not live upon them, and commenced threshing in the bam con-
taining a part of the property conveyed, and that the vendoi
delivered up to the plaintiff all control of the property in ques-
tion. What more should he have done ? If a man buys a iaxm
with the personal property upon it, and takes his deed, puts il
on record, and enters upon the premises, though his family dw
not reside upon them, and assumes an exclusive control of th::
property, the vendor and his family not living upon the farm, i^
not this all the change in the possession that reason or law can
require? To go further than this would be productive of mis-
chief and of no good.
It can hardly be contended that, from the fact that the vendor
was threshing with the plaintiff after he had entered upon the
868 Welch v. Clabx. [Vermonip.
prexniseB under his deed, there was a concorrent posseesioii of
the property in the vendor and the plaintiff, eepedallj as the
case states that he had surrendered np all control of it to the
plaintiff; and there is nothing in the case to show that the Ten-
dor, after the sale, had any beneficial use in the possession of
the personal property, or exercised any acts of possession over
the real estate. The inference, I think, from the case, is, that
the vendor was acting as the hired man or servant of the plaint-
iff. If, however, the case was made to torn on the question of
fiict of there being a concurrent possession, this should have
been submitted to the juzy. In the original case, as allowed by
the judge, it is true, the attachment appears to have been made
on tiie fifth of October, the day before the deed was put on rec-
ord; and this was probably supposed to have been the fact in the
court below; but upon reference to the writ and service, which
we must regard as a part of the case, the writ was not served un-
til the sixth. And we must so treat this bill of exceptions.
None of the cases cited by the defendant's counsel present an
analagous state of fiicts with those which are detailed in this
case. On the whole, then, we think there was a sufficient
change in the possession of this property, prior to the attach-
ment; and if the sale was, in fact, bona Jide and upon sufficieni
consideration (which, for the purposes of this question, we are
to take for granted), the plaintiff should be protected in his
rights.
Judgment of the county court reversed.
BxRxnoN or Possession or Chattbu bt Vshdob, Smor or: See th»
oases in this series collected in the note to Richmond t. Orudup^ S3 Am. Deo.
164.
Welch u Clark.
[13 VlBMCniT, 681.]
Tbnast in common can not Maintain Tkovsb ob Tbkpabs agsins hie
co-tenant in reference to personal property, unless there has been a de*
stmctlon of the ohatteL
Salb or AN Entibe Chattsl, Held in Common by one of two co-tenants,,
without the consent of the other, is not equivalent to a destruction.
Tenant in common is not Divestbd of any Right by a sale by his oo-
tenant, but becomes a tensnt in common with the purchaser.
Attachment of a Chattel, Held in common, on a process against a oo-
tenant, is not such a destruction of the property as to giTS the other ten-
ant a right to on action of trespass or trover against the attaching cred-
itor or the sherift.
Aug. 1839.] Welch v. Clark. 369
Tbxspass for taking a mare which the evidence showed was
held in common by the plaintiff and W. C. Clark. Defendant
justified the taking by yirtae of an attachment against said W.
0. Clark, and a sale thereimder to himself. The further facte
appear in the opinion. Defendant had veidict.
J. Sawyer ^ for the plaintiff.
Wmard and Poland^ and Maeckand SmaUey, for the defendant.
By Court, Bennett, J. Can this action be sustained upon
the facts disclosed in this bill of exceptions? We think not.
The court, in substance, charged the jury that if they found that
the plaintiff and William C. Clark were tenants in common of
the mare in question, the plaintiff coYQd not recover. The gen-
eral rule is, that one tenant in common can not maiTitAiT) trespass
or troTer against his co-tenant, because they have each an equal
right to the possession of the chattel, and the law gives no
action to the one dispossessed, because his right is not superior to
the right of the other. It is, however, equally well established,
that, if there has been a destruction of the chattel by one co-
tenant, the other, in such ca^, may maiTitain the action; and
it has been held that the sale of an entire chattel, held in com-
mon, by one of the co-tenants, without the consent of the other,
is equivalent to a destruction. This, however, can not be re-
garded as settled law. In the case of Heath v. ^u66ard, 4 East,
128, the court intimate a different opinion, while in the case of
Barton v. WiUiams, 6 Bam. & Aid. 395, great doubt is enter-
tained whether the effect of such sale would not amount to a
conversion, and some of the court think it would. In the cass
of Danida v. Daniels^ 7 Mass. 137, Chief Justice Parsons says,
trover will not lie by one or more of the heirs against the other
heirs for the conversion of their title deeds, unless they are ab-
solutely destroyed. In OviaU v. Sage, 7 Conn. 96, there had
been a sale by one co-tenant of the entire chattel, and Judgs
Daggett says, ** that nothing done by one tenant in common of
a chattel, short of a destruction of it, will render him liable to
his co-tenant in tort, and that this is familiar law." In the
state of New York, in the case of WUson and Oibba v. Eeed, 3
Johns. 176, it was expressly adjudged that if one tenant in com-
mon of a chattel sell it, an action of trover will lie against him
by the other co-tenant. This case is not supported by any ad-
judged case, cited either by the counsel or by the court, though
it has been regarded as settling the law in that state. In the
case of IhMs v. Bichardsan, 6 Yt. 442 [27 Am. Dec. 670], where
Am. Bso. Vol. XXXVI-M
870 Welch v. Clabbl [Yermoni,
the parties were tenants in common of a quantity of wool in
the possession of the defendant, and he had sold a part of it
and retained the rest, claiming the whole as his own, and re-
fused to deliyer any portion of it to the plaintiff on demand, it
was held that trover would not lie, even for a moieiy of what
had been sold.
I am not aware of any adjudged case in this state, that troyex
could be sustained upon a sale of the entire chattel held in com-
mon, and perhaps there may be some reason to question the
soundness of the doctrine in the state of New York on this sub-
ject. If one of two tenants in common take the whole chattel
into his possession, the other has no remedy against him who
has done the wrong, but to take it himself out of his posses-
sion when an opportunity presents. And, if one tenant in com-
mon sells the whole chattel without the consent of the other
tenant, the purchaser acquires a right to the possession of the
whole chattel, as tenant in common, the possession of one
being the possession of both, but a titie to one moiety only.
The tenant is not divested of any right by the sale of his co-
tenant, but becomes a tenant in common with his purchaser,
who succeeds to all the rights of a tenant in common. How,
then, is such a sale equivalent to a destruction of the chattel?
No doubt, the tenant may, at his election, affirm the sale, and
sustain his action against his co-tenant for a moiety of the con-
sideration receiyed. But, if he brings his action for the tort,
this is not an affirmance of the sale, though, probably* a re-
coYery and satisfaction in trover against the co-tenant, might
have the effect to vest the entire chattel in the purchaser. It is
not necessaxy, however, in this case, for the court to decide
upon the effect of a sale of a chattel by a co-tenant, and,
whether, if upon such sale trover will lie, there should be a dis-
tinction between trover and trespass.
This mare, while in the possession of William 0. Clark, had
been attached on two several writs, and was, at the time of the
attachment by the defendant, in the custody of the law. The
defendant's writ was served by the same officer, which would
have the effect to give him a lien, subject to the two first attach-
ments; but he would have no right in, or control of the proper-
ty, only as subject to the two first attachments. The mare
was sold to satisfy the two first liens; but there were no pro-
ceedings, in regard to the sale of the mare, on the defendant's
execution. The defendant, in this case, as the creditor of William
C. Clark, as it respects the plaintiff, relies upon his rights and
Aug. 1839.] Welch v. Clabe. 871
stands in his place. The defendant had the right to attach, at
least, all the interest William C. Clark had in the mare, as tenant
in common with the plaintiff, and the officer had, by Tirtue of
snch attachment, the right to take the entire and exdusiye pos-
session of the mare, subject only to the prior attachments, to
the dispossession of the plaintiff. Beed and Boot v. Shepardson,
2 Yt. 120 [19 Am. Dec. 697]; Whitney y. Ladd, 10 Id. 165. In
Heydon t. Heydon^ 1 Salk. 392, it was held that the sheriff, in
the case of copartners and judgment against one, in levying
the execution upon the goods of the partnership, must seize all,
because the moieties are undivided; for, it is said, if he seize but
a moiety, and sell that, the other will have a right to a moieiy
of that moiety; therefore, he must seize the whole, and sell an
undivided moiety, and the vendee will then be a tenant in com-
mon with the other partner. The same reason will apply to
tenants in common. It is, then, very manifest that the attach-
ment of a chattel, held in common, on a process against one of
tenants in common, as his sole property, can not in any point
of view be considered equivalent to a destruction of the chattel,
so as to give the other tenant the right to an action of trespass
or trover against the attaching creditor, who succeeds to the
rights of one of the tenants, or the officer who made the attach-
ment.
The fact that the officer, after the sale of the mare on the two
first executions, applied the surplus of the money remaining
after the satisfaction of those executions, on the defendant's ex-
ecution, can have no effect in this action. The officer held such
surplus in trust for those who were entitled to it, and must, at
his peril, make a legal application of it. If the defendant is not
entitled to retain it, he might be compelled to refund it, in
an action for money had and received, but his reception of it
can have no possible effect in this case.
As this is an action of trespass, there is another ground which
is fatal to the plaintiff's right of recovery. To sustain trespass,
the plaintiff must have either the actual or constructive possession
of the chattel, at the time of the trespass complained of. He
must have such a right as to be entitled to reduce the goods to
actual possession when he pleases. In this case, the plaintiff '■
right to the possession of the mare, at the time of the defendant's
attachment, was, for the time being, tolled by the prior attach-
ments, the mare then being in the custody of the law, and the
plaintiff, not having, at that time, the actual possession nor the
light of possession, could not,, for this cause, maintrfvin trespass.
872 Isaacs v. Clare. [Yerm ont^
The charge of the court to the jury, that if they found the
young horse, which was had of right, was owned by the plaint*
iif and William 0. Olark jointly or in common, and that this
horse was turned out in part payment of the mare in questioD,
they ought to infer (in the absence of any contract or evident
understanding shown to the contrary) that they had a common
interest in the mare in question, is most certainly unexception-
able. If the consideration paid for the mare in question moved
from the plaintiff and William C. Clark, the effect of it, in the
absence of any proof to the contrary, would be to vest the prop-
erly in those who paid the consideration for it, and, indeed, this
part of the charge was not resisted in the argument of the case.
The result is that the judgment below is affirmed.
TBOTSB or TBXaPASS hat BB MAIVTAXirBD BT ONB TeSAST or OOlOfOV
AflainBt another, only npon the destmction of the oommon property, or npon
nioh a disposition as is tantamount thereto: Lueaa r, Wa^Km, 24 Am. Dec.
t06; BeU v. Layman, 15 Id. 83; Hyde v. SUme, 22 Id. 682. The general aab-
jeot of when trespass will lie by one oo-tenant against another, is discussed
in the note to Porter v. Hooper, 29 Id. 483. A majority of the oases are op-
posed to the principal case, and sustain the view that the sale by one oo-ten-
ant of the property of the co-tenancy, as if he o?med the whole, is a oonver-
doii of the moiety of his co-tenant, and will sopport an action of trover by
the latter: Freeman on Co-tenanoy and Partition, sec 810L
IfiAAOS v. GlaBK.
[la YkBMoar, 699.]
Mjotmr of Ebtopfbl, to havb Bvfbot, mrgT bb Plbaixbd^ exospfe where
there has been no opportonity so to do, in which case it may be giTsn in
evidence with the same oonclnsive effect as if pleaded.
Tbbbzct or A JuBT ON Facts DmsoTLT in Lssub in one case, is oondiiaivia
as to sach facts, in a subsequent case between the same parties.
Assumpsit, for use and occupation of certain lands. Defend-
ant claimed that he had surrendered the premises to the plaintiff,
who had let them to another person. To defeat this claim of
the defendant, the plaintiff introduced a copy of the record of
a former action between the same parties, for the use and occu-
pation of the same land, in which the juzy had found the fact
of surrender adversely to the defendant. Defendant then
sought to introduce evidence to defeat the finding of the juij
on the question of surrender, which was excluded hy the oonri
Plaintiff had verdict.
WiUard and FoUmd, for the defendant.
Aug. 1839.] Isaacs v. Clare. 373
cTl Sofujyer^ and Maeck and SmaUey, for ihe plaintiff.
By Court, BxznnBTT, J. It is at least a familiar principle of
law, that, when a fact, appearing to have been put directly in
iflsae on the face of the pleadings, is determined by a jury in one
case, the verdict, when properly pleaded in a subsequent suit
between the same parties, is condusiye as to the facts found by the
verdict in the first case. This is by way of an estoppel; and, it
is usually said that, to give it this effect, it must be pleaded as an
estoppel. It is, no doubt, true that where the party has an op-
portunity to plead the estoppel, he is bound to do it; and, if he
omits it, the jury will not be bound by the estoppel, but may
find according to the fact. If, however, there has been no op-
portunity to plead the matter as an estoppel, it may, in general,
be given in evidence, and it will have the same conclusive effect
as in cases where it is pleaded. This is according to the current
of the authorities, though they may not have been entirely uni-
form: Hob. 207;' 1 Salk. 277;' 1 Ph. Ev. 224, 225; 14 Mass.
343,-" 3 Cow. 120;* 6 Wend. 289;* 17 Serg. & B. ^S19;' 1 Swift's
Dig. 622; 8 Yt. 461.^ It seems from this bill of exceptions,
that the fact whether there had been a surrender of the premises
by the defendant, for the use of which the rent is claimed, on
the former trial between these same parties, was put distinctly in
issue by them, and by the court in their charge to the jury, and
that issue was found for the plaintiff. This action, being
brought for rent claimed to have accrued since the former recov-
ery, the defendant, after pleading the general issue, claims, on
trial, that though he took the premises of the plaintiff under
a contract to pay rent, yet he had surrendered them to him, and
that the plaintiff accepted the surrender, and let them to another
tenant. The plaintiff could not have replied the estoppel to the
defendant's plea: Ihry v. Cook^ 2 Aik. 342. He must, therefore,
1)6 permitted to give it in evidence, and it must be conclusive
upon the parties. If, however, this had been a case where the
party might have replied the estoppel, it would have been hia
duty so to have done, if he intended to have relied upon the
matter as an estoppel.
The judgment below is affirmed.
In Wood T. Jack$on, 22 Am. Deo. 603, it was held, that where a formei
reooveiy was neglected to be pleaded as an estoppel, when there was an op-
portonity so to do, the jury might find acoording to the facts: See also Smi*^
r. Sherwood^ 10 Id. 143; Towns v. Nmu, 20 Id. 578.
1. Speak* y. Biduardi. 4. Oardner y. Buekbe*; B. 0., 16 Am. Deo. 356.
3. IV«v<oai» T. LovnuHce, 6. Wright y. BuOer; S. 0., 31 Am. Deo. 833.
8. JTMMVvlT.irifeUa. e. KUh^er t, Herr; S. a, 17 Am. Deo. 888.
T. Lord T. Biaelow,
OASES
COURT OF APPEALS
YIBGINIA.
TUOKAHOB OaNAL Oo. V. TUOKAHOB BjJLBOAD Go.
[11 Lsma. 4X}
GftAHT OF Pbzviliob TO OoBPO&ATiov IB NOT BzoLiTSivB, wiloM expnadj
Mdd to be M by the charter; CQDMqtwntly the grant of a privilege to one
company does not proTcnt the legiilatare ham granting a like privikge
to aaother» though the bniineee of the former ia injnxied cr oven mined
thereby.
FBonKBTT OF OoBroaA.Tiov IS SuBJicT TO Bight of Rmxmxiit DoiUnr aa
well as the property of private penoos.
Aor SuFFioiMTLY Pbotxdbb fob Oompbhbatxok, whev.— An act empower'
ing a company to exerciae the right of eminent domain, aoiBoieDtly
provides for compensation when it refers to a general law as the law of
the company; the general law prescribing the manner in which properipy
shall be so taken.
Oobporation Ekpowkbxd to Build Railroad mKrwwa Gbbcain Poms-
has a right to boild a bridge over the canal of a company previoosly
incorporated, as an ezerdse of the right of eminent domain.
OOKDBKNATIOK NeED NOT PSBCEDB EXBODTION OF THB WOBX, and a COT-
^ poration is not acting prematurely where it exercises a right of way
before having the damages assessed; there is no absolate obligation att
the corporation to iostitate process for nssciieing the damagee, as in csse-
of its default the owner may do so.
TuoxABOB creek is a small tribntarj of James liyer, diTiding'
the counties of Henrico and G-oochland. The general assembly^
by an act passed March 1, 1827, authorized certain persons to
open subscriptions to build a canal from some point on the-
James riyer canal west of the creek, to some point on the creek
in Qoochland, near Grouch's coal-pits. Subsequent acts were-
passed; one of which, passed February 9, 1830» authorized a.
March, 1840.] Tuckahqe C. Co v. Tuckahoe B. R Ca 375
ehange in the location, by which the comf^any was authorized
to extend the canal along the banks of the Tuckahoe to the upper
locks, on lands of one John Wickham. Wickham had entered
into an agreement by which he consented that the comf^any
should make its canal through his land and haye the use of the
waters of the Tuckahoe for supplying the same. The work was
completed according to the provisions of the charter contained
in the three acts of assembly. By an act passed March 27, 1837,
the Tuckahoe and James riyer railroad company was incorpo*
rated, for the purpose of constructing a railroad from the land
of one Martha Ellis, in Henrico, to such a point on the James
riyer canal as the company should select. The company so
projected its road as to cross the Tuckahoe canal in two places,
by means of bridges. The canal comj^any, in August, 1838,
exhibited a bill in the circuit superior court of Goochland
against the railroad comj^any, claiming that the charter of the
railroad company gave it no right to run its road across the
canal, and that, upon general principles of law, it had no such
right; that the canal company had a right to enjoy the profits of
its work free from obstruction, and that the railroad company
was an obstruction, and prayed an injunction to restrain the
latter from erecting any bridge across the Tuckahoe canal. The
injunction was awarded, but in March, 1839, it was dissolved,
in so far as it restrained the railroad company from erecting a
bridge for its road across the canal, at an elevation of six feet or
more above the towing path of the canal. The canal company
appealed.
Stanard, Lyong^ and Leigh, for the appellants.
Taylor, and O. N. and G. Johnson, contra,
TuoEEB, p. In the discussion of the respective rights of these
parties, a very wide debate has been indulged, in the investigation
of the legislative power, and the constitutionality of the char-
ter granted by it to the railroad company, to the prejudice, as is
alleged, of the Tuckahoe canal company, whose charter is of
anterior date. Conceding, without question, the power of the
judiciary to examine into and decide upon the constitutionalily
of laws, it can not be denied, that it is a power which ought not
to be lightiy exercised. The separation of the legislative and
judicial powers, and the inhibition of the invasion by the one of
the powers of the other, demands that we should be cautious
lest we transcend our own limits, in the attempt to confine a co-
ordinate branch within its legitimate boundaries. We must
876 TucKAHOE C. Ck). t;. Tuckahoe B. R Co. [Virgijiia^
caref tdly distmguish between legislatiye disdetion and legiala-
tive power. With the former we hiaye nothing to do, however
harshly or injadiciotiBly it may have been exercised. With us,
this question is a question of power, not a question of the judicious
exercise of it. With these views of our authority to pronounce
upon the constitutionality of a law, I have considered the ques-
tions submitted in this case with an earnestness due to their
importance.
The first appears to me to admit of no reasonable doubt. It
has been contended that a charter having been granted to the
canal company for the construction of a canal along a certain
line, it is not within the constitutional power of the legislature
to grant another charter for another improvement running side
by side with the first, although in the first charter there is no
express grant of exclusive right, and although the second im-
provement does not cross the line of the first. On the other
hand, it is contended, that if the grant contained in the first
charter be not exclusive, if the law which created it has not
provided that no rival improvement shall be constructed by
legislative authority, it is at all times competent to the legisla-
ture to grant new charters to rival companies upon the same
line, even though the value of the first may be impaired or
utterly annihilated thereby. In the latter opinion I concur.
Such legislation may be, and indeed often is, unwise, unjust,
and ruinous; but those are considerations which are in vain ad-
dressed to us, where the legislative body acts vnthin the pale of
its authority. That authority knows no limit but the charter of
the government, and in that charter the only relevant provision
is that no law shall be made impairing the obligation of con-
tracts.
The question, then, resolves itself into this: Has the legisla-
ture contracted with the canal company that it shall have the
exclusive transportation of the Tuckahoe valley, and that no
rival company shall be incorporated which may impair its
profits or take away its custom ? That it has expressly done
this can not be pretended. The act of incorporation con-
tains no such provision. Is such a contract on the part of the
government to be implied from the grant of the charter for the
construction of the canal? I think not. It can never be con-
ceded, that the incorporation of one company for internal im-
provement, is an implied negative of all future power in the
legislature to incorporate other companies for other improve*
ments. Such has never been the interpretation of legislative
March, 1840.] Tuckahoe C. Co. v. Tuckahob R R Co. 377
:gra]it8 in Yiiginia, but wherever ezdusiye rights are intended,
ospress provisions are introduced for the purpose of tying up
the hands of the legislature, and restricting the future exercise
of legislative power. It never was dreamed, that the establish-
ment of one bank was in itself a negative on the power to
•establish others. It never has been admitted, that malring
one railrod was a negative to all future power to construct an-
other which might rival it; but where that was the design of the
-charter, it has ever been so expressed, as in the act of 1833,
c. 3, sec. 38, the rights of the Richmond and Fredericksburg
railroad company are expressly protected, for a limited time,
■against all rival charters. Were it otherwise, what difficulties
would present themselves I Without express and definite pro-
visions and limitations, how could we ascertain the extent of the
•exclusive right? Experience has proved, that monopoly is very
ingenious in extending its rights and enlarging its pretensions.
Oive it the carte blanche of an implied contract, and we should
soon find it without other limit than the limits of professional
ingenuiiy; and the great mischief would at once present itself,
of the improvement of the country being arrested by the per-
petual objection of interference with chartered rights. Char-
tered companies are ever sensitive at the approach of a rival,
and if the discovery of a possible clashing of interests shall be
held sufficient to nullify a subsequent charter, it is impossible
to foresee to what extent the legislative power may be crippled
in this important branch of its duties. Already have we seen
the jiassage of an act incorporating a railroad comj^any from
Norfolk to Weldon, most vehementiy opposed by a former com-
pany, established between Petersburg and Boanoke. So the
making a railroad from Richmond to Lynchburg was warmly
opposed by the James river and Eanawha company. And here
we jsee the Tuckahoe canal company insisting that their priv-
ileges are invaded by the chartering of the Tuckahoe and James
river railroad company. If these pretensions are listened to,
there will soon be an end of the necessary improvement of the
country. But they are without foundation. Monopoly is not
« matter of inference. It must rest its pretensions upon ex-
press grant. It is a restriction upon common right, and upon
legislative power, and can not be implied.
What then is here insisted on ? Is it a monopoly of the right
to take tolls for the transportation on the canal ? If this be all,
we can not gainsay it. The canal is their own property; and
property necessarily implies a right in the owner, to the exclu*
873 TuCKAHOE C. Co. V. TuGKAHOE R R C!o. [Virginia^
non of all others. Is it a monopoly of the right to the trans-
portation of the Tuckahoe Talley? If so, the claim is not ad*
mitted. Upon the principles maintained by their own counsel^
it is denied. What right, upon those principles, has the legis-
lature to take from the colliers the liberty of transporting their
coal by wagons, or in any other mode they may elect? What
right to prevent their purchasing from the latndo wners the neces*
saxy ground, and constructing a railroad without a charter ? So
far as respected the canal comj^any , the railroad company needed
no charter to legalize their operations, if they did not cross the
canal. It was only necessary to enable them to condemn the
lands of others, and to sue and be sued. They do not derive their
right to make such a road for transportation of coals from legis-
lative grant. They would have had that without it, and it oould
never be affirmed, that a charter to them invaded the previous
charter, since so far as the canal company are concerned, a
charter would have given them nothing more than they had be-
fore, viz., a right to withdraw their coals from the canal ttana-
portation, and to transport them by land for themselves a&l
others, according to their own pleasure and ability.
After the very able and comprehensive investigation of this
subject in the case of The Charles River Bridge v. The Warren
Bridge j^ it would be superfluous as well as vain for me to at-
tempt to enforce by any arguments of mine, the principles estab-
lished by the majority of the court and sustained with such con-
spicuous ability by the counsel for the Warren bridge. It will
suffice for me to refer to that case, and to express my assent to
the proposition it establishes, that the incorporation of a com-
pany for the construction of a bridge or otlier improvement,
where the public interest is concerned, is not to be construed aa
conferring exclusive privileges, where none such are expressly
given by the charter; and, by consequence, that by charters of
this description the legislature is not deprived of the power of
granting other charters to other companies, even side by side
with the former, and in the same line of travel, provided there
is no express restriction upon their power in the first act of in-
corporation. Every principle of sound policy, indeed, forbida
that this should be lightiy done; or that it should be done with-
out securing some indemnity to those who suffer imder such
legislation. But it is not matter of right in the company; it ia
matter of discretion in the legislature; and hence, it is very
clearly no matter for judicial decision. The injury done is noi
" I. u Pel. iao.
March, 1840.] Tuckahoe C. C!o. u Tuckahoe R B. Go. 379
more direot than that which is in Tazions instances occasioned
by laws of unquestioned Taliditj. The inns and villages upon
every public road fall into dilapidation and min, upon the
change of the course of travel by the construction of a railroad,
and flourishing towns which have risen to wealth and importance
on the faith of public law, by being made a port of entry, sink
into insignificance upon the removal of their custom-houses to
more &vored spots. Yet who doubts the power, though many
may doubt the wisdom of the legislatore, in malring iU-advised
changes, which bring min upon the enterprising, and misery
upon thousands ? This sport with human prosperiiy and happi-
ness, indeed, can not be too much reprobated; but its corrective
is to be found elsewhere, and not here, unless the l^;islature
transcend its power; and we have already seen, that unless ex-
clusive rights are contracted for, the legidative power is without
a trammel.
The case before us, however, is unlike any that has heretofore
occurred in one very important particular. The Tuckahoe rail-
road company set up a pretension to run their road across the
canal, on a bridge of a certain elevation. They are not content
with passing on side bj side with their rival, but thiey assert a
right by their charter to cross his line of improvement. This
brings us to the inquiry, how far the legislative power is ade-
quate to the grant of a such a right ? And here, I imagine, the
right of eminent domain, which rides over every other, will be
found sufficient for the purpose. It is well observed by my
brother Brooke, in his lucid opinion in the case of Stohes v. Upper
Jppomatox Company, 8 Leigh, 387, on the subject of the jus
publicum, that " though our institutions and laws are justly
tenacious of private rights, yet the ruling principle of them is,
that where private rights come in conflict with public, the
former must yield to the latter; in which event, the legislature
alone is competent to make compensation." It may, indeed, be
truly said, that this jils publicum, this eminent domain, is the
law of the existence of every sovereigniy. It is as vital to it as
air to animal life; and hence, it has no limit but the necessities
of the body politic, of which that body alone must be the judge.
It is absolute over' the persons, as well as the property, of its
members. It commands the sacriflce of life, as well as the sur-
render of possessions; and it would be strange, indeed, if to
that sovereignty which can compel me to lay down my life in its
service, the power should be denied of taking my property for
its uses. At this time of day, it is too late to set up any barrier
880 TUCKAHOE C. Ck). V. TucKAHOE R R Co. [Virginia,
to that power. It has been in constant exercise since the existence
of sodeiy, and must continue unrestricted so long as society
shall last. It has been exerted in the estabUahment of eveiy
<x>mmon road through the country; in the erection of public
buildings, the condemnation of hmd for public improyements,
the impressment of -pro^perbj flagrante beUo, and in yarious other
modes not necessaiy to be here stated. In its exercise, howeyer
harsh, it neyer has been deemed to be a yiolation of indiyidnal
right, or a breach of contract with the subject, either express or
implied. For though the soyereignly has granted its land, or
its priyileges, without an express reserration of a right to take
them for public uses, jet that right is necessarily implied; and
eyen if alienable at all, it is not to be presumed to be surrendered
without an express abandonment. As was obseryed by Chief
Justice MarHhall of the taxing power, *' The whole community
is interested in retaining it imdiminished, and that community
has a right to insist that its abandonment should not be pre-
sumed where the deliberate purpose to abandon does not appear.*'
It seems to be supposed, howeyer, that the rights of the camd
company, which are called a franchise, can not be inyaded,
though the power to take other priyate properly for public uses
may not be denied. It is proper, then, to come to a proper un-
derstanding of this word franchise, that we may the better com-
prehend what is to be regarded as trenching upon it. Now, I
take a franchise to be: 1. An incorporeal hereditament; and,
2, a priyilege or authority yested in certain persons by grant of
the soyereign (with us, by special statute), to exercise powers,
or to do and perform acts which without such grant they could
not do or perform. Thus, it is a franchise to be a corporation,
with power to sue and be sued, and to hold property as a cor-
porate body. So it is a franchise to be empowered to build a
bridge, or keep a ferry, oyer a public stream, with a right to de-
mand tolls or ferriage; or to build a mill upon a public riyer, and
receiye tolls for grinding, etc. But the franchise consists in the
incorporeal right; the property acquired is not the franchise.
A bank has a right to purcha^te a banking house: when pur-
chased, is the house a franchise ? Surely not, for it is corporeal,
whereas a franchise is incorporeal. So of ai railroad company:
it has the franchise to condemn land for its road, which at once
becomes yested in the company in absolute property; but the
land is not the franchise. It is real property held by the com-
pany upon the same implied terms on which others hold their
lands, that it may be taken for public uses upon compensation
March, 1840.] Tuckahoe C. Co. v. Tuckahob R R Co. 381
being mode. Indeed, in former days, the eminent domain in
the establishment of roads was exercised (as we are reminded
hy Judge Brooke, in the case before cited) without compensa-
tion; but it is now veiy wisely and justly provided by the con-
stitution, that in all cases where private property is taken for
public uses, just compensation shall be made to the owner for
his loss.
It is not, then, pefceiyed that the property of a corporation is
less liable to the exercise of ^e jus publicum, than the property
of a private individual. In both cases, the private right must
yield to the necessities of the public, and in both the public
must make compensation for the loss. In the former, indeed^
the necsssiiy is more apparent; for were it otherwise, the great-
est mischiefs would ensue. The James river canal, running east
and west, and the railroads running north and south, might
very seriously impede the intercourse between the different parts
of the state, if the companies have the right to prevent the
passage across their line of improvement, and the jus publicum
can not be exercised in the creation of new roads to meet the
growing exigencies of the countiy. A person fifty yards from
his mill, or county court-house, may be driven to the necessity
of traveling miles aroimd to reach them, or of submitting to
the xmreasonable exaction of a monopolist. It would be diffi-
cult to make him comprehend how the l^(islative power could
extend to taking away his land to make the railroad, and could
cut him off from his ordinaxy comforts and conveniences, and
yet be inadequate to the exercise of the eminent domain in giv-
ing him a right of passage across the line of the improvement
thus constructed to his detriment.
Upon the whole, therefore, I think it was competent to the leg-
islature to empower the railroad company to cross the line of the
canal, whether the canal company be regarded as the proprietors
of the soil, or of a mere right of way. If they are proprietors
of the soil, then they hold it by the same tenure that every man
holds his land; thatis, subject to Hxejuspublicum. If it is a mere
right of way to which they have title, the argument applies with
yet more force, since the power to condemn the land itself is
greater than that of condemning an easement upon it. In the
exercise of this power, however, it must never be forgotten, that
a just compensation for rights or property condemned must al-
ways be made.
But several questions here present themselves: 1. Is it neces>
saxy to the validity of the act, that compensation should be pro-
382 TXTCKAHOE C. Co. V. TucKAHOE R R Co. [Virginia
Tided before the property can be taken? The constitution pro-
Tides, that the legislature shall jmiss no law whereby priTate
property shall be taken for public uses without just compensa-
tion. And although there is no express requisition that the act
which iuTades the right shall proTide the indemnity, yet, after
much reflection, I incline to the opinion that it should do so.
The instances which may occur flagranie beUOy of impressments
iutid destruction of property, though at first Tiew they may seem
to indicate a different construction, yet are rather to be referred
to the necessities which war imposes, when the safety of the
state is the supreme law, and justice is silenced by the din of
arms.
2. Oonoeding, as I readily do, that the question of compen-
sation is a judicial question, and that it is not in the power of
the legislature to settle it, since this would be to imite judicial
and legislatiTe powers, and to enable the goTcmment to decide
in its own case, it may next be asked whether an act iuTading
priTate property will be held to be Toid, when it clearly appears
to the judicial tribunal, that no injury is done, and nothing
taken, which will entitte the party to compensation ? To this I
should answer in the negatiTe; for howcTer proper and prudent
it might be to proTide for the establishment of that fact by the
ordinazy proceedings, yet if, upon full iuTestigation before the
proper tribunal, no injury should appear, we should be justified,
I think, in considering the statute as not in conflict with the
spirit of the constitution.
In the present case, howerer, these questions are unimportant,
if it shall appear that by the railroad charter a method is pro-
Tided for ascertaining and making compensation for prop-
erty necessary for the road. Now, this I think dear, by the
reference in tixe charter itself, to the general railroad law, as the
law of the company. According to tiiat law, tfa^ are bound to
proceed to condemn the lands necessary for their road. If the
canal company are the owners of the soil where the road passes
their line of improTement, the railroad company should haTC it
condemned as their property; if they are not the owners of the
soil, they should haTC proceeded to condemn the property as
Mr. Wickham's property, or haTe purchased his rights by pri-
Tate contract; and in either case, they would hold subject to the
easement of the canal, precisely as he held it. The record does
not show how this matter is, nor is it material to the question
we are considering; for the charter haTing duly proTided for
compensation, it is not Toid, although the company may haTe
March, 1840.] TucEAHOE C. Co. v, Tuceahob R R Co. 383
failed to pursue its proTisions. That is a matter to which I shall
hare occasion presently to refer.
We proceed next to inquire, whether the charter authorizes
ihe railroad company to cross the line of the canal. This must
he decided by reference to several acts: 1. The charter itself,
which fixes one terminus of the road at Mrs. Ellis' land: the other
terminus is declared to be such point on the James riyer canal
as the railroad company may select. 2. It then vests in the
company the liberty to construct their road subject to the pro-
visions of the general railroad law. 8. By the provisions of that
statute, the company have a right to enter upon all lands through
which they may desire to conduct their road, and to lay out the
lame according to their pleasure. By this provision, then, they
were invested with unlimited power to locate the road between
ihe two termini as they pleased. If, then, the location so made
'srossed the canal, the law authorised them to cross it; and we
have already ee&a that such authority was within the competence
-of the legislature to give. The only obligations upon the com-
pany are to avoid encroaching on dwelling-houses, etc., and to
jxiy for the property taken.
We have, then, it is conceived, established these two points:
ihat the railroad charter is not unconstitutional, and that it au-
thorizes the company to cross the line of the canal. Upon what
ierms, is the next question to be solved. Andhere, there issome
•difficulty in ascertaining from the record what is the state of the
4act. It does not appear whether any proceedings have been in-
stituted by the comjwmy, or the proprietor, for the condemna-
Ttion of the land and the assessment of damages. CertaLu it is,
that the railroad comjwmy can not pass the canal, without being
xesponsible to the owner of the land for the damages done by
ihe condemnation. In what manner the canal company may be
.entitled to compensation for any injuiy they may sustain, and to
what extent, it would be premature in this case to inquire. Satis*
fied as I am from the record, that they are not the owners of the
-soil, either legally or equitably, and that they have only title to an
-easement, I have no doubt that the land should be condemned
4IS Mr. Wickham's. I am also of opinion, that when so con-
demned, the tiUe to the land will vest in the railroad company,
4nibject to the easement; and that they will be bound, as Mr.
Wickham was bound, not to obstruct or impair its enjoyment
Whether it would be practicable for them, if they so de-
Ared, to extinguish that easement by any proceeding now
known to the law, it is not necessary in the present state
884 TucKAHOE C. Co. V. TucKAHOE R R Co. [Virginiiv
of things to inquire. Our only concom is to know, -whether
they have undertaken to exercise their right of passing the-
canal prematurely. It seemed to be considered by the cotm-
sel, that the condemnation must precede the execution of tiie
work. This is, I conceiye, a misconception of the law. The
company have a right to proceed with their work before con-
demnation; and, indeed, there is no absolute obligation on them,
to institute the process for assessing the damages to the land,
since in case of their default the owner In'maftH may do so. It
is, therefore, clear, that the work is not to be suspended until
the damages are assessed and paid; and this is rendered more
undeniable by the thirteenth section, which in connecidon with<
the previous sections provides, that *' in the mean time" (that is,
while the process of valuation or assessment is going on), ** no
injunction shall be awarded to stay the proceedings of the com-
pany in the prosecution of their works, unless," etc. It was
not then necessary, that the damages should have been assessed
and paid before ihe company proceeded to the erection of their
bridges.
With these views of the law of this case, I can not perceive-
that the railroad company have, in any respect, " transcended
the authority given by the law," in proceeding to erect their
bridges over the line of the canal. Nor can I perceive, thai
they have done, or are about to do, any injuiy to the canal com-
pany which can not be adequately compensated in damages.
On the contraiy, it is palpable, that (apart from the competition,,
which we have already shown the canal company can not com-
plain of) there is no injuiy done them whatever. The railroad
bridges are much higher above the water than their own bridges.
Eveiy load which can pass the canal bridges will be wholly un-
obstructed by the railroad bridges, while boats that can pass the
latter would be obstructed by the former. It is, therefore, not
true that any injury whatever, and much less an irreparable in-
juiy, has been done, or is likely to ensue. The interference by
injunction was, therefore, improvident, and in direct conflict
with the statute, and with the established principles of a court
of equity. I am, therefore, of opinion, wholly to dissolve it»
and to dismiss the bill. It will be at its own peril if the rail-
road company so erects its bridges as to obstruct or impede the
easement of the canal. It has not yet done so. When it does,
it will be time enough to invoke the extraordinaiy {)Owers of a
court of equity, by showing the danger of actual and irreparable
injuiy. It will then also be time enough to decide bow &r the-
August, 1840.] Wheeung iKa Co. v. Mobbisok* 885
canal oomi^anj have power to extend their easement, either later-
allj, or by raising their bridges, and remoying as a nuisanoe thai
wHch is erected by the railroad company. Those inquiries, at
this time, appear unnecessary and premature.
According to this opinion, the decree of the circuit superior
court was right in dissolving the injunction, but erroneous in
imposing the restriction as to the height of the bridges. It
ought to have been wholly dissolyed, as improridently awarded.
The other judges concurred.
Decree, that the circuit superior court ought to haye dissolyed
the injunction as improyidently awarded, without imposing any
restriction as to the height of the bridges, and that the said
order is erroneous.
Absent, Pabxib and Staxabd, JJ.
OoKPJDniATioK lOB KjgsiuHBB ov BiOBT ov BMDmziT DoMAUf: See Qaird»
wer T. Newlmrgh, 7 Am. De<x 526; Ex patrU Jemtbiffi, 16 Id. 447; FcnfftlU
T. JD£i, 20 Id. 218; ii«oni<y-9€iiera/ t. iSSt6Wiw,22 Id. 526; BeekmeanY.Sareh
ioga B. R. Co., Id. 670; Lhhtfi&Um t. Ma^for </ N. T., Id. 622; Boaton S
S. M, Oorp. T. Newman^ 23 Id. 622; Scudder t. TrmUm Del F. Co., Id.
756; Cooper t. Wmcmu, 24 Id. 299; WMfigUm'o eeue, 26 Id. 631; Wm^mrd
T. HaaUiUm, 30 Id. 195.
WHEELma Inbubanoe Go. v. Mobbibon.
[11 Lush. DM.]
OnsTBACT OT Sals, Bmcr of on Right to Iivbukanob.— Where the in-
■oxed enten into a contract to convey the premises, bat before the oon-
tnet IS exeooted the premises are destroyed by fire, he retains saoh aa
inteiest that he can maintain an action on the policy.
Case in circuit superior court of Ohio county, by Joseph Mor*
risen against the president, etc., of the Wheeling Fire and Marine
Insurance Company. Pleas, non asaumpeU and payment. The
following &cts were agreed npon: In August, 1832, the defend-
ants executed to Morrison a x>olicy of insurance against fire on
a certain dwelling-house of Morrison's; the policy contained,
among other stipulations, a provision that it should be of no
effect if assigned, unless the assignment was allowed by the
company. In April, 1836, plaintiff entered into an agreement
with one Peay, for the sale of the house insured and the lot on
which it stood, by which it was agreed that Peay was to give
Morrison the bond of one Clark, and, as additional security for
the payment thereof, to give him a mortgage on two lots (on one
Am, Dbo. Toi.. ZIXYI— 9B
886 Wheeling Ins. Co. v. Mobbison. [Yirginiah
•
of which stood ihe building in question); upon the deliveiy of
the bond and security a deed was to be made. It was agreed
by parol between them, both before and after the written agree-
ment, that ihe policy of insurance was to be transferred to Peay.
The contract was not executed within the time stipulated, and
shortly after the house was destroyed by fire. Subsequently
the agreement was executed. If upon the facts stated the law
was for the plaintiff, judgment to be rendered for him; if not,
judgment to be for defendants. The circuit court decided for
the plaintiff, and rendered judgment in his &Yor, to which, on
the petition of the defendants, a supersedeas was allowed.
Johnson, for the plaintiffs in error.
Ptice, contni,
Stahabd, J. In this case, certain facts haye been agreed
by the parties, and the law on those facts submitted to the
court; the parties agreeing that if it be for the plaintiff,
judgment shall be entered for a specified amount. The only
question presented then is, has the plaintiff, on the facts agreed,
a right of action against the defendants? the agreement of the
parties as to the amount of damage precluding an inquiry by the
court into that matter. The original insurance is free from all
exception, and the property embraced by it having been de-
stroyed by the risk insured against, the right to the action is
clear, unless the interest of the insured in the property had
been extinguished at the time of the loss. It is said to be ex-
tinguished by the executory contract of sale made before the
loss. That contract, if it had been carried into full execution,
according to its provisions, would have left the insured a mort-
gagee. The existence of that interest, of sufficient stability to
sustain an original policy, is surely sufficient to repel the pre-
tension that the interest was extinguished. If the contract ex-
ecuted would not extinguish the insurable interest, the contract
executory surely would not. The interest so abiding in the in-
sured would have entiUed him to recover the full amount of the
insurance on the loss, without subjecting him to a delay of his
claim on the insurers, until he bad shown, by the pursuit of the
claim on the mortgagor, that it could not be recovered from him;
Stetson V. MassachuseUs Fire Ins. Co,, 4 Mass. 330 [3 Am. Dee
217]. The mortgagee confessedly has an insurable interest, and
yet it is nowhere intimated in any treatise or adjudication on the
subject, that, in the event of destruction of the property, his claim
on the policy must await the pursuit of his claioi on the mortgagor.
Angosiv 1840.] WHEELma Ik& Co. v, Mobbisok. 387
A commission merchant^ in the habit of making advances on
eonrngnment, has an insurable interest in the consigned prop-
erty to the extent of his adyances. Though I have not found a
judicial decision on the precise {)oint, yet in the case of Parks
T. Oeneral Interest Assurance Co., 5 Pick. 34, the immediate
light to demand of the insurer the amount of advances on the
property destroyed, without a previous pursuit of the claim on
the consignors for the advances, was not questioned by the in-
surers. Where the hundred is responsible for the loss by fire,
it would seem that the insured is entitled on the policy to the
full amount, though he might recover full indemnity from the
hundred.
But indei)endent of the foregoing considerations, I think that
on the facts agreed, the insured was entitled to recover the full
insurance; those facts ascertaining that he was interested in
the loss to that extent. There is no ground on which his claim
is resisted, but that furnished by the ascription to the court jf
law, of power to look at the executory contract of sale in the
manner a court of equity might, and to consider the interest in
the property to have passed by the sale, if a court of equity
would, at the instance of the insured, decree its specific per-
formance. Without giving a judicial approbation to this propo-
sitioUy but for this case conceding its correctness unquestionable,
the inquiry is, on what terms would this contract be enforced at
the instance of the vendor? To the solution of this question it is
THfttflriftl to ascertain the effect of the parol agreement, stated in
the agreed case to have been made before and after the execu-
tion of the written contract of sale for the transfer by the
vendor to the vendee of the policy of insurance. No one con
reasonably 8upx>ose that the contract to transfer the policy was
separate from and independent of the contract of sole. In the
nature of things it is not to be surmised that such a separate
and independent contract could precede that for the sale of the
property. We must understand that it constituted a part of the
parol treaiy for the sale, and formed one of the considerations
of that parol agreement which must precede the reduction of it
to writing — was omitted by accident or design in reducing it to
writing — ^and was subsequently recognized. By it the vendor
was to assure to the vendee the benefit of the insurance, and was
bound to obtain the assent of the insurers to the assignment.
This, in a court of equity, could have been set up by the vendee
in resistance of the specific performance which would deny him
the benefit of the insurance; and a court of equity would not
388 Wheeling Ins. Co. v. Morrison. [Virgmia^
have compelled performance without an abatement for the loss.
The assured was therefore interested at the time of the loss to
the full amount; and in ereiy view of the case I think the judg-
ment ought to be affirmed.
TuoKBB, P. Without impugning the doctrines of insurance as
laid down in the cases cited for the plaintiffs in error, I am of
opinion that the judgment in this case was right. In the for«
mation of this opinion I have been mainly influenced by the
agreed fact, that both before and after the contract between
Peay and Morrison, there was a parol agreement that Morrison
should transfer to Peay the -policy of insurance. It is objected
however that that agreement can not be admitted, either as a
distinct, independent contract, or for the purpose of affecting
the written contract. And this question is reserved. It must,
I think, be decided against the plaintifffl in error.
By whom was the evidence of this parol contract introduced*
and on whose behalf vnis it designed to operate ? Was it intro-
duced by the plaintiffs in error ? If so, how is it competent for
them now to deny the validify and effect of their own evidence?
It is impossible; and it is accordingly intimated at the bar that
it was introduced by and on the part of Morrison. Now Mor*
rison was theparty to be bound by it, and if he chooses to recog-
nize it as a bindingand valid agreement, notwithstanding it was
by parol and not introduced into the body of the agreement,
who can gainsay it? A parol contract is not void by the stat-
ute of frauds, though its obligation may be repelled by the
party sought to be bound by it. The protection is introduced
for his bttiefit by the statute, and may of course be renounced
by him. If he is willing to abide by it; if, disdaining the
mala fides of breaking his plighted faith, merely because the
ceremonies of the law have been neglected, he reoogniEes
the contact and confesses its obligation, shall it not be en-
forced ? Let the unvarying course of equity cases answer the
question. How then can it be objected by a third person, that
the contract which the party himself acknowledges and claims
to be valid and binding u{)on him, is not to be so considered?
The pretension I conceive to be utterly without foundation.
I take the agreement, then, to assign the policy, as a sub-
stantive and most material part of this case, and I will now pro-
ceed to show how (taking that fact into consideration) Morrison,
at the time of the fire, was damnified by the destruction of the
premises. It can not be denied that according to the spirit of
the agreement to assign the policy, Morrison was bound to give
Angnst, 1840.] Wheelino Ins. Co. v. Morrison. 389
to Peaj the benefit of it when the house was burnt. By that
occurrence, however, the policy became functna officio. An
assignment after that would have been futile. But as, by the
agreement, Peay was to have the benefit of the indemnity, so it is
clear that he would have been entitled to demand from Morrison
any benefit which he might derive from the insurance. Nay
more, if Morrison had instituted his bill against Peay to enforce
a specific execution of the contract of stde, a court of equity
must have departed from its ordinary principle of holding the
purchaser bound by the loss, and have refused a specific execu-
tion except upon the terms of making good that loss. It could
not have compelled Peay to sustain a loss which, by the very
contract itself, it was clear he did not engage to abide, but
against which, in effect, he contracted to be insured. If there-
fore Morrison could have enforced the policy, the court would
have obliged him to give the benefit of his recovery to Peay, or
to relinquish the contract; or if , as is now contended, the
policy was rendered nugatory by the sale, the court, in the exer-
cise of its sound discretion, would not have deemed a specific
execution reasonable, since Peay was not in equity bound to
bear the loss against which he had in effect contracted to be in-
sured. Morrison must then have lost his contract, or indemni-
fied against the damage.
What then was the state of the case immediately upon the
happening of the fire? Morrison then had the legal title in
him. But it is said, that having sold, the tiUe was to be consid-
ered to be in Peay upon equitable principles. This position has
been advanced upon false deductions from the prindiple that
equity considers that as done which ought to have been done.
But equity never so considers, but in behalf of one who has done
equity, and has put himself in a condition to demand the execu-
tion of his contract. Now, at the time of the fire, it did not ap-
pear whether the contract ever would be carried into complete
effect. It did not appear whether Peay ever would or could com- ,
ply, and therefore equity could not consider the titie to be in him.
He had not delivered the bond which was to have been delivered.
That bond was to be the bond of a third person, and it might
never have been in his power to deliver it. It was not delivered
within the stipulated time. He then, on the fifth of May, 1836,
was in default (for the bond had not even then been delivered),
and on that day he had no right to demand a specific execution
of the contract, and of course could not be deemed to have the
390 Wheeuno Im Co v. Mobbison. [Virginia,
title. The title was then in Moixison; the house burned was
his house, and the loss sustained was his loss. This is the more
manifest when we reverse the picture. Morrison sues for a
specific execution. Peay repels the demand unless he will pay
for the house: alleging that bj his contract he was to be pro-
tected against loss by fire; that Morrison either can or can not
give him the benefit of the -policy of insurance for which he con-
tracted; that if he can, but will not, he has no title to relief;
that if he can not, then he can not give what was most essential
in the contract, and a court of equity will not relieve him. In
the exercise of that discretion which is always exercised in bills
for specific performance, it will not compel a party to execute
the contract, when he can not get that which he contracted for.
It would be unreasonable to comi>el him to take the property
without the indemnity, when he expressly contracted for the in-
demnity: and equity will not do that which is unreasonable.
This defense would be unanswerable, and Morrison must
either have kept the land, or paid for the loss. If he kept the
land, he would be clearly entitled to recover of the insurers.
If he paid the loss, he would be a loser and entitled to indem-
nity from them to the identical amount.
It has been contended, however, that as the contract was car-
ried into execution subsequently, it appears that Morrison sus-
tained no damage. I am by no means satisfied that the fullest
proof of his having received the entire consideration without
deduction for the loss, could take from him a right of action
which had previously attached. But if proof of indemnity by
that means could be a bar, then it must be clearly established,
and the onus is on the defendants. The damage having been
proved by the plaintiff, the indemnification must be shown by
the defendants. But it is not shown; since, for aught that ap-
pears to the contrary, Morrison is liable to the action of Peay
for not transferring the x>olicy, or has indemnified him for the
loss, which, upon every equitable principle, he was bound to do.
TJx>on the whole, I think the judgment is right. The insurers
have received their premium for a succession of years, and now
seek to avoid the fulfillment of their contract u{)on the pretext
that the insured has received indemnity from another quarter.
Without calling in question the cases on insurance, we should
not be too astute, I think, in the application of a principle by
which a burden is to be taken from the shoulders of those
who have been paid to bear it. and cast upon one of two
Nov. 1840.] Eevan v. Walleb. 391
innooent persons who have advanoed iheir money to be absolved
from it.
By GoiTBT. Judgment aflSrmed*
Absent, Pabxib, J.
Alixnatiok gw Pbopbbtt, Bvtsct ot, on Claim fob Insubakob.— For a
diaeaanon of this sabjeot, tee the note to Lane ▼. Maihe Mutucd F, InM. On.,
28 Am. Deo. 160; also JStna F%re Ins, Go. v. Tyler, 90 Id. 00.
Kevak V. Walleb.
[11 LnttH, 414.]
AOTHOBXTT COKISBBBD ON TbBTAMKNTABT GuABDIANS 18 JoiNT AND SbT-
BBAL; it is conpled with an interest; if one dies it will go to the sorYivQin
and where one refoaeB, the other may qualify without him.
To CONSTITUTS A GUABOIAN, BZPBBSS W0BX>8 OF APPOIHTMBNT ABB NOV
Kbqbsabt; any worda will do if the father's intent is apparent; bat the
language must be anoh as to imply a right to the custody, control, and
protection of the ward.
Lanouaob NOT A SuTTioiBNT ApPOiNTMBNT, WHaN.*— Where a testator be*
queathed his son a oertain sum of money to be invested as his executors
should think best, and also ordered " from the proceeds or dividends te
eduoato him in the best manner under the direction of my said ezecu*
tors," this language is not su£Scient to constitute his executors testamen-
taiy guardians.
In the mil of John Myrick^ late of Petersbuig, there was the
follo^nng provision: *' I give and bequeath to my son John L.
Myriek, the sum of fifteen thousand dollars, to be Tested in bank
stock or such other stock as my executors may think best and
more profitable, and from the proceeds or dividends to educate
him in the best manner under the direction of my said executors
hereinafter named, and the surplus, if any, to be vested in like
manner or stock." The l^;atee, J. L. Myrick, was an infant of
tender years, and the hustings court of Petersburg appointed
Andrew Kevan guardian; at the next term, on motion of Waller,
one of the executors, who represented that he was appointed tes-
tamentary guardian by the will, and who demanded that letters
testamentary issue to him, the court made a rule on Kevan to show
cause why his appointment should not be revoked; both parties
appeared, and the court revoked Eevan'sapx>ointment, but over-
ruled Waller's motion to be permitted to qualify. Both parties
appealed to the circuit superior court; Eevan did not prosecute
his appeal, but he appeared and contested Waller's claim. The
drcuit superior court held that on account of the failure of
302 Kevan v. Waller. [Yiiginia
Kevan to prosecute his appeal, the propriety of the leTOoation
of his letters was not examinable; also that the ezecatora of
Myrick -were bj his mil appointed testamentaiy guardians, and
reversed the sentence of the hustings court, which denied the
issuance of letters testamentaiy to Waller. From this sentence,
Kevan, bj a petition to a judge of this court, prayed an appeal,
which was allowed.
Mlacfarlandy Bhodes, and Leigh, for the appellant.
Johnson and Taylor, contra.
TuoKBB, P. The difficulty which was supposed to exist as to
the jurisdiction in this case, disappears when we look to the po-
sition of the parties. Eevan, the appointed guardian of young
Myrick, was summoned, at Waller's instance, to show cause
why he should not be removed, he (Waller) claiming that he
had been appointed testamentaiy guardian, and not having been
summoned or notified according to law, to declare his accept-
ance or renunciation of the office. Kevan was removed by the
hustings court of Petersburg by which he had been api)ointed.
Waller then moved to be permitted to qualify: Kevan op-
posed this motion; and it was entered of record that he did so.
The hustings court rejected Waller's motion; and Waller ap-
pealed. Now although, if the two cases are considered as dis-
tinct, Kevan's right of appeal might have created some doubt,
if he had failed in the hustings court; yet as he succeeded, and
Waller appealed, Kevan was properly before the circuit supe-
rior court as a party; and as that court reversed the sentence of
the hustings court, and gave judgment against him for costs,
there can be no doubt, I think, of his right of appeal from that
judgment. The question is then fairly brought up as to the
merits of the sentence. I put out of the case all question as to
the power of one of two testamentaiy guardians to qualify with-
out the other. I take it to be clearly and properly settled,
under the statute concerning testamentaiy guardians, that the
authority conferred is joint and several; that it is not a naked
authority, but coupled with an interest; that if one dies, it will
go to the survivor; that where one refuses, the other may qualify
without him: that each is a complete guardian, if the other does
not qualify. It would be most mischievous if, where there are
several apx>ointed, and some refuse to act, the rest should not
be able to do anything; and yet this must be the consequence,
if the appoinment of several should be held to be one joint
naked authority; a construction which would make the act of
Uov. 1840.] Kbvan v. Walleb. 393
little force, and the more guardians a father should appoint for
ihe security of his child, the less secure he would be, since the
xefasal of one would defeat the authority of all: 2 P. Wms.
102, 107, 108.*
The real question in the case is, whether the will of Myrick
•constituted Waller and Clarke the guardians of his child? And
here I shall concede, that it has been decided (whether wisely
-or not, may perhaps be questionable) that the use of the term
.guardian, or other express words of appointment, is not neces-
sary, nor is it material by what words the guardian is api>ointed,
proYided the father's intent be sufficiently apparent. Yet
with this concession, I am still of opinion, that, as the father's
Authority is an innovation upon the common law, and in deroga-
tion of the rights of the mother or other kindred who would be
•entitled to be guardians by nature, the declaration of his inten-
tion should be distinct and unequiyocal, and in terms incon-
sistent with the existence of the power and authority of the
natural guardian. And if the language of his will is clearly
reconcilable with the rights of such natural guardian, it should
not be strained, by piling inference upon inference, so as to
iake them away. Thus, in the present case, the mother if alive,
<yr the giBnd&ther if she be dead, are the guardians by nature
•of this child. From the tie of blood, the law looks upon
ihem as his natural protectors. But as the father may be pre-
sumed to know to whom it would be safest to intrust him, the
law defers to his judgment: yet it surely will not be eager to
presume that the father intended to tear his child from the ten-
'der cares of a mother, or other kindred, and to place his person,
Jus fortunes, and his education, in the hands of a stranger.
Before we arrive at such a conclusion, the language must be
-dear and cogent; and moreover, the direction given to the
stranger must be incompatible with the guardianship in the
Jiezt of kin, or it can not fairly be presumed to be designed to
take it away. For if the intent can be fully satisfied short of
Annihilating the natural guardian's {)ower, we are not authorized
to go one step farther.
Such appears to me to be the present case. Here is a grand-
father of the child yet living. Why should we presume, that
the father intended to take from the grand&ther, his natural
friend and protector, this only child, and place his person and
All his property, in the hands of Waller and the grandfather
jointly? Because he has ordered, that he shall be " educated
1. Egre T. Skt^fUbwry,
894 Eevak v. Waller. [Virgiiiia^
in the best manner, under the direction of his execators T* la-
this order incompatible with the rights of the natural guardian f*
What more was meant, than that Waller and Clarke should pre-
scribe the course, and point out the mode, of his education to the-
person haying the guardianship? Such directions that person
would indeed be bound to follow; because, even* before the-
statute, the &ther had the i)Ower of directing the course of his>
child's education, and a court of equity would enforce a com-
pliance with his will. Since the statute, it is yet more dear;
the greater power of appointing a guardian comprehending that
of directing the education, or giving power to direct it. Accord-
ingly, in the case of Beavfori y. Berty,^ where the testator ap-
pointed two guardians, and recommended that they should take
the adyice of the duke of Ormond as to the education of the
wards. Lord Macclesfield recognized the validity of this recom-
mendation, but the duke of Ormond being attainted,.the authority
was held to deyolye upon the great seal, and the chancellor there-
upon directed that the guardians should take the adyice and fol-
low the counsel of the duke and duchess of Grafton, who were
relations of the wards. Here, then, the guardianship was in
two persons and the "direction of the education" in two others.
And is anything more common, than for a father who is solicit-
ous about his child's education, to declare his wishes that some
friend, in whom he has confidence, should haye the direction of
his education, without designing to burden him with the guar-
dianship, the custody of his person, and the management of hia
fortunes ? Such a construction would defeat its yeiy object; for
a friend might be yeiy willing to discharge the dufy of an ad-
viser or director of the child's education, who would be unwill-
ing or unable to take upon himself the guardianship. Thai
great and excellent man, our former fellow-laborer, and one of
the lights and ornaments of this court (the late Judge Carr),
recommended that his son should be educated under the direc-
tion of myself in conjunction with his wife. It may be safely
affirmed, that he never designed to take the guardianship of
his boy from that excellent lady, or to vest in me any power over
his person or his estate. Certain it is, I never dreamed of such
a construction of his will, whilst I should have faithfully com-
plied, as far as I was able, with his wishes. I should never
have supposed it necessary to enter into bond with securify be-
fore I could have recommended a course of study or instruction^
nor should I have thought myself entitled to qusJify as guardian^
1. 1 p. Wans. T<n.
Nov. 1840.] Eevan u Waller 395
and take the child and his estate from his mother's hands, in
case she did not qualify also. I have mentioned this case, merely
as fnmishing an actual instance of a provision similar to that at
bar, in which the constniction contended for by the appellee,
would obviously have violated the wishes of the testator.
From what has been said, I think it clear, that an authority
to direct the education of a child, may be exercised by one,
whfle the guardianship (that is, the custody of his person and
property) may be in another. The two things, then, are not
incompatible, and if not incompatible, the gift of the former is
no derogation of the latter. To me, indeed, it appears, that the
veiy provision, that a child shall be educated under the direc-
tion of an individual, implies the custody by one person and the
direction of the education by another. Had the testator, in this
case, designed to confer the guardianship, he would have con-
fened it iaiidem verbiSf since it would have been the most
natural and obvious mode of expressing himself; or had he de-
signed, that his child's education should be directiy conducted
by the executors, he would have said, that he should be educated
l^them; but in declaring that he should be educated under
their direction, there is the strongest implication of agency in
some other who was to be subject to their direction. That other
was the guardian. The clause in question is indeed imperfect:
he gives his son fifteen thousand dollars, '' and from the pro-
ceeds to educate him." Here is something wanting, something
to be supplied; but what is not so dear. Yet it is dear, that
the words *' my executors," are not the omitted words; for if
they are inserted, it will make the sentence absurd. It will
make the testator provide that his executors shall educate him,
under the direction of his executors. Either the testator in-
tended some other person, or he intended to speak impersonally;
and, in either case, he seems to have looked to his child's edu-
cation being conducted by others, though under the direction of
the executors.
The statute concerning guardians, etc., and the interpretation
of the word tuition there used, were the subject of much discus-
sion at the bar. That word I certainly do not understand in
the narrow sense of instruction or education; it is used in the
broader sense of protection, superintendence, guardianship; it
comes from the latin tueor, to defend; and hence its radical
signification is defense. This is also implied by the word guard-
Miship; which, however, is yet broader, for it implies custody;
its loot is the anglo-saxon toardian; which signifies to look, to
896 Kevan v. Waller. [Yiiginia.
look after, and thenoe by transition, to gnard, to keep; and so
implies custody. The word guardian is derived immediately
from the French gardien^ which itself comes from toardian; the
w being conrerted, as is usual, into g: Richardson's Diet.; 1
Tooke's Diyersions of Purley , 332-334; 2 Inst 805. Thus, guard-
ianship includes the idea of custody; and custody and tuition,
as used in the statute, constitute guardianship.
Admitting, therefore, that no particular words are necessaiy
in a will for the appointment of a testamentary guardian, it may
safely be affirmed, that the language must be such as to imply a
right to the custody, control, and protection of the ward. This
I do not think can be fiurly implied from the provision, that the
child shall be educated under the direction of the executors.
The word education, here, is obviously used in the narrow sense
of instruction, and does not imply tuition, and much less cus-
tody. But it is contended, that we must infer a right of control
over the education, from the right of direction; a right to the
possession of the person from such right of control; and the
powers of a guardian over the estate from the right to the pos-
session of the person; and thus, from the simple power to direct
the course of education or instruction, the appellee claims to be
invested with the custody of person and estate, and a guardian's
power over both. I can not consent thus to build inference
upon inference, of which I am persuaded the testator never
dreamed. I must have somewhat more than a single case, and
that too of doubtful authoriiy and analogy^ before I will pile
consequence upon consequence, for the purpose of vesting in a
party the largest powers over the person and estate of an orphan
from so remote an implication.
If indeed we look to authority, I think the case of the appel-
lee will not be much better than without it. The case of lady
I^syriham v. Lennard} stands alone, and may well be suspected
to have been partly decided under the influence of religious jeal-
ousy and intolerance. It occurred in the very heat of sectarian
controversy, early in the reign of Gtoorge I., and turned on the
dangers of intrusting the education of a child to a papist mother.
It was, moreover, stronger than this case; for there were in that
case words of exclusion of the natural guardian: the testator
said, he " expected his &ther to take care of the education of
his child in the protestant religion, and not leave the education
of it to his wife." Against this case may fairly be opposed the
case stated in BedeU v. OcnskMe,* where even a devise of land
1. 4 Bio. p. a aoa, S. VMgh. 17t.
Nov. 1840.] Eevan v. Waller. 897
to J. S. diniiig the minoriliy of the testator's ohild, for liis main-
tenanoe and ednoation, was held not to constitate him guardian.
This view of the case renders it mmeoessaiy to inquire whether
the evidence adduced to show Waller's unfitness for the office,
would have justified the refusal to permit him to qualify, even if
he had been really appointed a testamentaiy guardian.
TTpon the whole, I am of opinion, that the sentence of the cir-
cuit snperior court be lerersed with costs, and the sentence of
the hustings court refusing Waller permission to qualify as
guardian, affirmed.
The other judges canonized. Sentence reversed.
Absent, Ssakahd, J.
Qo^MBUon, AnmxTMmn amd Fowsas ovt See Jfollcr
^ Yarn /Tosfea, 80 Am. Deo. 707, and ao*e 719^ whm this sablMliidfe.
atlai^th.
CASES
nr THS
SUPREME COURT
OF
ALABAMA.
SlATB V. MARLmi,
[9 Alabama,, 43.]
Wnvm OAH NOT bb Impkaohsd by proying that he made diffBrant itite-
maiiti to other penooB, until after he has been asked whether or not, at
a time and plaoe named, he made such contradictory statements to them
IvBAHirr MUST Bx Showx bt Clbab and Conyincikg Pboof to the satis
fsotioQ of the jury, where it is set up as a defense in a criminal prosecu-
tion; but if the jury entertain a reasonable doubt of the defendant's
sanity, they should acquit him.
EbbobIo the dronit court of Montgomeiy. The defendant
was indicted, tried, and found gmltj of murder, and the presid-
ing judge referred to this court for revision, the several points
of law arising out of the charges given by him, as novel and
difficult. The other facts appear from the opinions.
Ooldthwaite, for the defendant.
Lindaay, attorney-general, contra,
Obmond, J. Questions arising on the law of evidence, from
the universality of their application, are always questions of
great interest. The rule to be expounded in this case, has a
double object — ^it is not only adopted as a means of arriving at
truth, but is also designed for the protection of witnesses. The
credit of any witness might be destroyed, if it were permitted,
after his examination, to call other persons to contradict his
testimony in court, by proving that he had made different state-
ments to them, without first inquiring of him whether he had
made such statements to them, as he might thereby recollect
Jan. 1841.] State v. Mahler. 399
the drcumstanoes attending the supposed conversation, if
real, and perhaps be able to ezplahi it In this case,
the ground was laid on the cross-examination of one of the
state's witnesses, by asking him, if he had not made different
statements to two persons, who were named, or to any other
person. The two persons to whom his attention had been di-
teeted, were examined, and contradicted him. The prisoner's
<sounsel then proposed to call another, to prove that the witness
had the same conversation with him. The counsel for the pris-
oner now insists, that he should have been received on the
ground that it was a question of veracity between the state's wit-
ness, and those who contradicted him, and that they had a right
to siqyport their witnesses. We do not consider that the reasons
assigned, famish any cause for departing from the rule above
laid down. Until the witness for the state had been inquired of
as to the last witness offered, it can not be known that he would
have denied having had the conversatioi^ with him he is prepared
to testify to; he might admit and explain it, so as to make it
harmonize with his testimony. As to fortifying their witnesses,
nrho had contradicted the witness for the state, it is obvious that,
t^ the contradiction which their testimony afforded, the object
had already been accomplished. Whether it might not have
been proper to admit such testimony, if the credit of the prison-
er's witness had been assailed by proof, it is not necessary now
to determine. As to the refusal of the court to permit the wit-
ness for the state to be called back, for the purpose of laying
the ground for the examination of Armstrong, we think it purely
a matter of discretion, which can not be reviewed in this court.
It might operate most mischievously^ to permit the credit of
witnesses to be thus impeached, after they had left the stand,
and their evidence fully known; and of this, no one can judge
so well as the court, in whose view the whole transaction passes.
The remaining question is one of much greater magnitude,
and of some difficulty. In civil cases, where there is conflicting
testimony as to the existence of any fact necessary to be estab-
lished by either party, the jury are under the necessity of weigh-
ing the evidence, and of deciding in favor of that party on whose
side the evidence predominates. But in criminal cases, the
hmnanity of our law requires, that the guilt of the accused
should be fuUy proved. It is not sufficient that the weight of
evidence points to his gmlt. The jury must be satisfied beyond
a reasonable doubt of his guilt, or he must be acquitted. It is
not meant here, that the evidence on which to found a verdict
400 State v. Marlkr [Alabama^
in a criminal case, should be so condusiTe as to exdude the
preBomption, that notwithstanding the evidence, the accused
might be innocent, bat only that it should be of a character to
raise that high degree of probability, on which all human action
depends.
In what respect then does the question of insaniiy, when set
up as an excuse for an act which would otherwise be a crime,
differ from any other &ct, which a jury may be called on to de-
cide in a criminal case? As insaniiy excuses the commission of
crime, on the ground that the actor is not an accountable being,
it is obvious that society has a deep interest in providing the
means of preventing its being assumed as a cover for the com-
mission of crime, and as this is more easily simulated, and de-
pends more on the volition of the actor himself, than any
other defense, which would excuse the commission of an act
otherwise criminal, the interest of the public demands that it
should be established by more condusive proof. Thus, in
Arnold's case,^ who was indicted for shooting at Lord Onslow,
and who set up the plea of insanity, Tracy, justice, observed, that
the defense of insaniiy must be dearly made out; that it is not
eveiy idle and frantic humor of a man, or something unaccount-
able in his actions, which will show him to be such a madman
as to exempt him from punishment; but that where a man ia
totally deprived of his understanding and memory, and does not
know what he is doing, any more than an infant, a brute, or a
wild beast, he will be properly exempted from punishment. In
Bdlingham's case, who was indicted for the murder of Mr. Per-
dval, Mansfield, 0. J., in reference to the plea of insaniiy, re-
lied on for the prisoner, said, '' that in order to support such a
defense, it ought to be proved by the most distinct and unques-
tionable evidence, that the prisoner was incapable of judging
between right and wrong; that in fact, it must be proved beyond
all doubt, that at the time he committed the act, he did not
consider that murder was a crime against the laws of Ood and
nature, and that there was no other proof of insanity, which
woiQd excuse murder or any other crime."
These opinions, which are undoubted law, show the stringent
nature of the evidence by which insanity must be proved to be
an excuse for crime; but we do not understand that even this
defense must be established by evidence so condusive in ita
nature, as to exdude every other hypothesis. This would be re-
quiring something akin to mathematical proof, of which the sub-
1. UH0w.8t.Tr.e96.
Jan. 1841.] State v. Marler 401
ject is clearly not susceptible ; but that the juiy must be fully satisk
fied that the e-vidence is made out, beyond the reasonable doubt
of a well-ordered mind. To test the ease at bar by these prin-
dpleSy the court was moved to charge the jury, ''that if they
entertained any reasonable doubt as to the saniiy of the pris-
oner, they must acquit him;" which charge the court refused.
Upon the principles here laid down, it was error to refuse this
charge. If the prisoner was insane, he was not an accountable
being; and can the public justice of the country repose with
safety upon a verdict found by a jury, every member of which
may have entertained a reasonable doubt of its propriety? It
would have been highly proper, that the court, when called on
thus to charge, shotdd have explained to the jury, that this de-
fense required to be made out by strong, clear, and convincing
proof, and guided by these considerations, if they still entertain
a reasonable doubt of the sanity of the prisoner, it was their duty
to acquit.
The charge which was given by the court, does not appear to
be objectionable; but as it is probable the jury were misled by
the refusal to give the charge asked for, the judgment must be
reversed, the cause remanded, and the prisoner directed to re-
main in custody to await a trial de novo; unless in the interim
he shall be discharged by due course of law.
CoLLDCB, 0. J. I concur in the reversal of the judgment of
the circuit court, but as I do not entirely assent to the opinion
of my brother Ormond, I deem it proper briefly to declare my
views upon the only point of difference between us. The
charge, as prayed in regard to the prisoner's insanity, shoiQd in
my judgment have been refused. It supposed that the jury
would be bound to acquit, if they entertained a reasonable doubt
as to the prisoner's sanity, llie law requires insanity, when
alleged as an excuse for the commission of an offense, to be
made out by proof, as full and satisfactory as is required to es-
tablish the existence of any other fact. A reasonable doubt,
whether the accused was sane, would not authorize his acquittal—
there must be a preponderance of proof to show insanity to war-
rant a verdict of not guilty for that cause.
But in my apprehension, the error consists in the charge given
to the jury. They are informed, that if they entertain a reason-
able doubt as to ihe prisoner's insanity, it would be their duty
to regard him as sane, and if the facts established a case of mur-
der, they should find him guilty. Now, it was entirely possible
for the jury to have entertained a reasonable doubt of his in-
▲k. Dxo. Vol.. XXXVI— 96
402 State v. Marler. [Alabama,,
sanity, although the weight of Gvidenee was so strong, as to
have led their minds to the conclusion, that such was the pris-
oner's condition. This charge, then, must have induced the
jury to believe, that the proof of insanity should haye been con-
clusive and irresistible. In this point of view they may have
been misled, or have required proof too stringent. Hence, I
am in favor of reversing the judgment.
Inbaiott ab a DxTKHSB ON AH iNDionoorr fOE Cbimb.— It WM alwaji
a settled rule of the oommon law that a penoQ oonld not be legally punished
for any act oommitted by him while he was insane. We oan hardly doubt
that, in times past, jories have convicted and ooarts hayo prononnoed judgment
npon men whom we, even with the imperfect light still possessed by us, should
nneqaivocally pronoanoe to have been Insane at the time they committed the
acts for whidi they suffered punishment. But if the law has punished persons
who were undoubtedly fitter subjects for the insane asylum than for the
penitentiary or the gallows, it is due, not to any lack of humanity in the
spirit of the law, but rather to the prevailing ignorance of what constituted
insanity, or to the application of wrong tests of responsibility. The com-
mon law never intended to inflict punishment upon one whom it believed to
be insane at the time when he did the act charged as a crime. For the law
holds that a criminal intent is an essential element in every crime, and if by
reason of insanity a person be incapable of forming any intent, he can not be
regarded by the law as guilty.
Test of BisPONSiBiLiTr. — It has been very generally assumed that there
exists some test by the application of which to the facts of a particular case,
a jury may determine whether or not a person was sane enough to be legally
responsible for the act with which he stands charged. The first test of this
kind is that proposed by Lord Hale, in bis Pleaa of the Crown. He says:
" It is very difficult to define the indivisible line that divides perfect and par
tial insanity; but it must rest upon circnmstsnces duly to be weighed and
considered both by the judge and jury, lest on the one side there be a kind
of inhumanity tomrds the defects of human nature, or on the other side too
great an indulgence given to great crimes; the best measure that I can think
of is this: such a person as laboring under melancholy distempers, hath yet
ordinarily as great understanding as ordinarily a child of fourteen years
hath, is such a person as may be guilty of treason or felony:*' I Hale's P. G. 90.
This test can hardly be regarded as very definite or correct. Yet such has
been the eagerness to find some test or rule by which the responsibility of a
prisoner charged with the commission of a crime may be measured, that this
test has been very widely accepted and followed in Uiter cases. And a writer
on this subject in the American Law Review for November, 1881, referring
to this test, says: *' Doubtless the test of 'a child of fourteen years' is vague;
but if we take the modern formula and say that the accused may be found
guilty if he could appreciate the nature and quality of his act, and knew
that it was wrong, we are probably following the rule that Lord Hale meant
to lay down." And if we consider the great advances that have been made
in scientific investigations since Lord Hale's time, and the very slight im-
provement of the tests proposed by later writers and judges, we shall wonder
not that he was satistied with so vague and indefinite a test of responsibility,
but that be succeeded in finding one so good. We can not regard the test
proposed by Mr. Justice Tracy, in his charge to the jury on the trial of
Jan. 1841.] State v. Marler. 403
Arnold, in 1724, as any improTement on that of Lord Hale. He said: *'It is
oot every kind of frantic hamor or something unacconntable in a man's ac-
tions, that points him oat to be such a madman as is to be exempted from paniah-
ment: it must be a man that is totally deprived of his understanding and
memory, and doth not know what he is doing, no more than an infant, tlian
a bmte, or a wild beast; such a one Ib never the object of punishment:'* 16
How. St. Tr. 764. Under this charge the defendant was found guilty and
was sentenced to be hanged, but on the intercession of Lord Onslow, the
person whom the prisoner had attempted to assassinate, his punishment was
•commuted to imprisonment for life. The evidence in the case tended very
strongly to show the insanity of the accused. But it is evident from the
•charge above given that the court regarded no one as exempted from the
penal consequences of crime except one whose reason was completely de-
throned. If the accused retained the slightest vestige of rationality, he
must be held responsible for his acts. It seems to us that in so palpable a
•case no test would be needed.
Lord Erskine, in his celebrated speech in defense of Hadfield, who was
tried in 1800 for high treason for shooting at King George III., in Drury Lane
theater, referring to the doctrines of Lord Hale and Justice Tracy, says:
'* The attorney-general, standing undoubtedly upon the most revered author-
ities of the law, has laid it down, that to protect a man from criminal re-
sponsibility, there must be a total deprivation of memory and understanding.
I admit, that this is the very expression used both by Lord Coke and by Lord
Hale: but the true interpretation of it deserves the utmost attention and
consideration of the court. If a total deprivation of memory was intended
by these great lawyers to be taken in the Uteral sense .of the words — if it was
meant, that, to protect a man from punishment, he must be in such a state of
prostrated intellect, as not to know his name, nor his condition, nor his rela-
tion towards others — ^that if a husband, he should not know he was married;
or, if a father, could not remember that he had children; nor know the road
to his house, nor his property in it — ^then no such madness ever existed in the
world. It is idiocy alone which places a man in this helpless condition:*' 27
How. St. Tr. 1312. In this case it was quite certain that Hadfield was not
wholly deprived of memory and understanding. He evidently knew right
from wrong, and realized clearly what would be the legal consequences of the
act he was about to commit; in fact, it was through these consequences that
his object was to be attained. But he was evidently laboring under an insane
delusion which the court, no doubt largely influenced by the able aiguments
snd great eloquence of Erskine, held to have rendered him irresponsible for
the act which he committed. The following is the test of responsibility ad-
vanced by Lord Erskine in this case: *' Delusion, therefore, where there is no
frenzy or raving madness, is the true character of insajiity; and where it can
not be predicated of a man standing for life or death for a crime, he ought
not, in my opinion, to be acquitted; and if courts of law were to be governed
by any oUier principle, every departure from sober, rational conduct, would
be emancipation from criminal justice. I shall place my claim to your ver-
dict upon no such dangerous foundation. I must convince you, not only that
the unhappy prisoner was a lunatic, within my own definition of lunacy, but
that the act in question was the immediate, unqualified ofhpring of the dis*
esse. * * * I can not allow the protection of insanity to a man who
only exhibits violent passions and malignant resentments, acting upon real
circumstances:" Id. 1314. Here wo have a test which, whether correct
or not, can at least be applied in cases where difficulties do really arise.
For. as Erskine truly remarked, the cases to which the tests given by Lord
404 State v. Mabler. [Alabamai
Hale and Jastioe Tracy oonld be applied, "are not only extremely rare»
bat never can become the sabjects of Judicial difficalty. There can be bat
one judgment concerning them.'* The eloquence and ability of Lord Erakine
aecared the acquittal of Hadfield. But the delosion test, here propoeed by
him, does not seem to have received the subsequent sanction of the courts.
In the case of Bellingham, who was tried at the Old Bailey, in the year
1812, for the murder of Mr. Peroival, Lord Chief Justice Mansfield, in charg-
ing the jury, is reported to have said: *' In another part of the prisoner's de-
fense, which was not, however, urged by himself, it was attempted to be
proved that, at the time of the conmussion of the crime, he was insane.
With respect to this the law was extremely clear. If a man were deprived
of all power of reasoning, so as not to be able to distinguish whether it was
right or wrong to commit the most wicked transaction, he could not oertainly
do an act against the law. Such a man, so destitate of all power of judg*
ment, oould have no intention at all. In order to support this defense, how-
ever, it ought to be proved by the most distinct and imquestionable evidence,
that the criminal was incapable of judging between right and wrong. It
must, in fact, be proved beyond all doubt, that at the time he committed the
atrodous act with which he stood charged, he did not consider that murder
was a crime against the laws of Qod and nature. There was no other proof
of insanity which would excuse murder or any other crime:'* 1 ColL Lun. 671.
And further on: " The single question was whether, when he committjBd the
offiBnse charged upon him, he had sufficient understanding to distinguish good
from evil, right fram wrong, and that murder was a crime not only against
the law of Qod, but against the law of his country:'* Id. 673.
On the trial of Bowler at the Old Bailey in 1812, Sir Simon Le Blanc, who
presided, stated to the jury that it was for them to oonsider whether, at the
time the defendant committed the act, he was in a state of mind to distin-
guish right from wrong, or under the influence of any illusion towards the
particular object which rendered him for the moment insensible to the natore
of the act he was about to commit; for if he was so influenced, he oould not
be deemed responsible to the law; otherwise, it would be their duty to find
him guilty:*' 54 An. Beg. 809; 1 ColL Lun. 673; Shelf. Lun. 461. In each
«f the cases last cited the accused was convicted and executed, althou^ ii
was clear from the evidence that he was laboring under a delusion at thr
time of the commission of the crime alleged.
In the case of Eex v. Offord, 5 Car. & P. 168, tried in 1831, in summing up*
Lord Lyndhurst, C. B., told the jaiy ** that they must be satisfied before they
could acquit the prisoner on the ground of insanity, that he did not know
"when he committed the act what the efiect of it, if fatal, would be with ref-
erence to the crime of murder. The question was, did he know that he was
committing an offense against the laws of God and nature.'* The reportet
goes on to say that his lordship referred to the doctrine laid down by Sir
James Mansfield in. BdUngham*8 ca9t and expressed his complete satisfao-
tion therewith. It appears to us that Lord Lyndhurat's test, that the pris'
oner should have becoi capable of knowing that the crime he was about to
commit would be murder, in order to render him liable to punishment* Lb a
much less rigorous test than that propounded by Lord Mansfield in the case
of Bellingham. And so it seems the jury regarded it, for they found the
prisoner not guilty, on the ground of insanity, although the evidence of in-
sanity does not appear to have been any cleurer than it was in BeUrngJuuiC^
^cue. In the case of Hegina v. Oa^ordj 9 Car. & P. 525, tried in 1840, Lord
Denman, C. J., in charging the jury, said: "The question is, whether the
prisoner was laboring under that species of insanity which satiflfleB yoa that
Jan. 1841.] State v. Marler. 405
he vnB quite unaware of the natare, character, and consequences of the act
be was oofmmitting, or, in other words, whether he was under the influence
of a diacaood mind, and was really unconscious at the time he was commit-
ting the act, that it was a crime." The rule here laid down is called the
right and wrong test, and is the rule still followed in England. The jury,
under this charge, acquitted the prisoner, on the ground of insanity.
In the year 1843» MoNaghten was tried for the murder of Mr. Drumraond.
The defense set up was insanity, and the medical evidence offered hy the
prisoDsr in support of his plea was: That persons of otherwise sound mind
ndgiht be affected by morbid delusions; that the prisoner was in that condi-
tion; that a person so laboring under a morbid delusion, might have a moral
perception of right and wrong, but that in the case of the prisoner it was a
delusion, which carried him away beyond the power of his own control, and
left him no such perception; and that he was not capable of exercising any
control over acts which had connection with his delusion. The following is
the charge of L6rd Chief Justice Tindal in this case: '*The question to be
determined is, whether, at the time the act in question was committed, the
prisoner had or had not the use of his understanding, so as to know that he^
was doing a wrong or wicked act. If the jurors should be of opinion that
the prisoner was not sensible, at the time he conmiittod it, that he was vio-
lating the laws both of God and man, then he would be entitled to a verdict
in his favor; but if, on the contrary, they were of opinion that when he com-
mitted the act he was in a sound state of mind, then their verdict must be
against him." The jury returned a verdict of not guilty, on the ground of
insanity. The result of the trial caused a deep feeling of dissatisfaction in
the publio mind, and the subject was twice discussed in the house of lords:
fiee 67 Hans. Pari. Deb. 288, 714. The house of lords propounded to the
judges the following questions in relation to the subject under discussion:
1. What is the law respecting alleged crimes committed by persons afflicted
with insane delusion, in respect of one or more particular subjects or per-
sons: as, for instance, where at the time of the commision of the alleged
crime, the accused knew he was acting contrary to law, but did the act com-
plained of with a view, under the influence of insane delusion, of redressing
or revenging some supposed grievanoe or injury, or of producing some sup-
posed public benefit? 2. What are the proper questions to be submitted to
tile jury, when a person alleged to be afflicted with insane delusion respect-
bg one or more particular subjects or persons, is charged with the commis-
sion of a crime (murder, for example), and insanity is set up as a defense ?
8. In what terms ought the question to be left to the jury, as to the
prisoner's state of mind at the time when the act was committed ? 4. If a
person under an insane delusion as to existing facts, commits an offense in
consequence thereof, is he thereby excused ? 5. Can a medical man, con-
▼emnt with the disease of insanity, who never saw the prisoner previously
to the trial, but who was present during the whole trial and the examination
i't all the witnesses, be asked his opinion as to the state of the prisoner's
mind at the time of the commission of the alleged crime, or his opinion
whether the prisoner was conscious, at the time of doing the act, that he was
•cting contrary to law, or whether he was laboring under any and what de-
lusion at the time ?
Mr. Justice Maule answered separately. Lord Chief Justice Tindal,
■peakiDg for all the other judges, replied as follows: 1. In answer to the first
question, assuming the inquiry to be confined to those persons who labor un-
der such pat-tial delusions only, and are not in other respects insane, they were
"of opinion that, notwithstanding the party accused did the act complained
406 State v. Maeleb. [Alabama^
of with a view, under the inflnenoe of insane delusion, of redressing or r»
venging some 8at>poBed grievance or injury, or of prodneing some pablio ben>
efit, he is nevertheless ponishable according to the natore of the crime com-
mitted, if he knew at the time of oommitting sach crime that he was aetuQg
contrary to law;" by which expression they understood the lords to meav'
'* the law of the land." 2 and 3. In answer to the second and third qnea-
tions, which, they thought, could be more conveniently answered togetiksr,
they replied, "that the jurors ought to be toM in all cases that every man ia
to be presumed to be sane, and to possesi a sufficient degree of roason to bere-
sponsible for his crimes, until the contrary be proved to their satislaction; and
that to establish a defense on the ground of Insanity, it must be clearly pnyved
that, at the time of the committing of the act, the party accnaed was laboring
under such a defect of reasop, from disease of the mind, as not to know tli»
nature and quality of the aot he waa doing; or, if he did know it; thai he did
not know he was doing what waa wrong." They stated that the mode of
putting the latter part of the question to the jury had generally been, whether
the accused, at the time of doing the act, knew the difference between ri^t
and wrong. This mode they conceived not to be *' so accurate when put gen-
erally and in the abstract, as ^en put with reference to the party's knowl-
edge of right and wrong in respect to the very aot with which he is charged.
If the question were to be put as to the knowledge of the accused solely and
exclusively with reference to the law of the land, it might tend to confound
the jury, by inducing them to believe that an actual knowledge of the law of
the land was osnential in order to lead to a conviction; whereas the law is ad-
ministered upon the principle that every one must be taken conclusively to
know it| without proof that he does know it. If the accused was conaoioaa
that the act was one which he ought not to do» and if that act waa at the
same tiuLe contrary to the law of the land, he is punishabla" 4. In an-
swer to the fourth question they said: "The answer must of course depend o»
the nature of the delusion: but, making the same assumption as we did be-
fore, namely, that he labors under such partial delusion only and is not in other
respects insane, we think he must be considered in the same situation as to
responsibility as if the facts with respect to which the delusion exists were
real For example, if under the influence of his delusion he supposes another
man to be in the act of attempting to take away his life, and he kills thai
man, as he supposes, in self-defense, he would be exempt from punishment.
If his delusion was that the deceased had inflicted a serious injuiy to hi*
character and fortune, and he killed him in revenge for such supposed injury,
he would be liable to punishment." 6. In answer to the flfth question, they
said : *' We think the medical man, under the circumstances suppoeed, can not
in strictness be asked his opinion in the terms above stated, because each of
those questions involves the determination of the truth of the facts deposed to,
which it is for the jury to decide, and the questions are not mere questions upon
a matter of science, in which case such evidence is admissible. But where the
facts are admitted or not disputed, and the question becomes substantially
one of science only, it may be convenient to allow the question to be put in
that general form, though the same can not be insisted on as a matter ol
right. '* See McNaghten*8 case, 10 CL & Fin. 200. The htw as hiid down in the
foregoing answers has been implicitly followed in England ever since, and has
also been approved by the courts of many of the states in this country. The
various tests, then, so far considered, are: 1. The test of **a child of four-
teen years.** 2. What has been termed "the wild-beast test" 3. The test ol
right and wrong in the abstract. 4. The test of right and wrong with refer-
SDoe to the particular act. Since the answers of the twelve judges above
Jan. 1841.] State v. Makt.er. 407
mentioned were given, the English courts have rested satisfied with the last-
mentioned test. In this country, however, the rale has not met with universal
•cooet)tanoe. In most of the states the capacity of the accused to distinguish
right from wrong in respect to the act charged as a crime is made the test of
hia responsibility: Bonoett v. State, 63 Ala. 307; S. C, 35 Am. Rep. 20; PeopU
▼. MeDoneU, 47 Cal. 134; PeopU y. Coffman, 24 Id. 230; StaJte t. Spencer, 1 Zab.
190; Statt v. fftt/^er, 40 Wis. 304; StaU v. King, 64 Mo. 691; Dove v. State, 3
Heiak. 348; Thmae v. Stale, 40T&3i. 60; Wright v. People, 4 Neb. 407; Flana-
gan v. PeopU, 52 N. T. 467; 8. C, 11 Am. Rep. 731; WiUie t. People, 32 Id.
715; BrinJdey v. iSftote, 580a. 296; StaU v. Lawrence, 57 Me. 574; Williams v.
Sta/€, 7 Tex. App. 163; Bovard v. State, 30 Miss. 600; StaU v. PraU, 1 Houst
Or. 249; StaU v. Bums, 25 La. Ann. 302. The same rule is adopted in the United
States courts: dnited States v. McGlue, 1 Curt. C. C. 1 ; United States v. ShuUa,
6 McLean, 121; United States v. Holmes, I Cliff. 98; OuUeau's ease, 10 Fed.
Rep. 161. In several of these cases the language used by the court is so vague
and loose, that it would justify one in concluding that the test of responsibil-
ity meant to be applied was, the capacity of the accused to distinguish right
fitmi wrong in the abstract. It is difficult, however, apart from a knowledge
of all the facts and droumstances surrounding the particular case, to clearly
comprehend the exact nature and meaning of the charge. And it is believed
that in no court in this country, at the present day, would a charge be con-
sidered law, that gave as a test of responsibility the capacity or ability of the
accused to diBtinguish right from wrong, in the abstract, at the time when he
committed the act for which he stands charged.
But, on the other hand, the courts of a considerable number of states have
shown by their decisions that they have not been entirely satisfied with the
answer of the EngUsh judges. They do not regard the ability of a person to
merely know right from wrong to be a sufficient test of his responsibility in
all cases. They believe that to hold him responsible for hui act he must have
possessed, at the time, mental power sufficient to apply that knowledge to
Us own case, and to know that, if he does the act, he will do wrong and re-
ceive punishment; and that, if the mind of the accused was so far impaired
by mental disease, that for the time being the disease overwhelmed his reason,
coDscienoe, and judgment, and caused him to act from an irresistible and un-
controllable impulse, he can not be held legally responsible for the act so oom-
mitted: Commonwealth v. Rogers, 7 Mete (Mass.) 600; ComafiumweaUh v.
MoAer, 4 Pa. St. 264; OHwein v. Commonwealth, 76 Id. 414; S. C, 18 Am.
Rep. 420; Brown v. Commonwealth, 78 Id. 122; Sayres v. Commonwealth,
88 Id. 291; State v. Felter, 25 Iowa, 67; STnith v. Commonwealth, 1 Duv.
224; Kriel v. Commonwealth, 5 Bush, 362; State v. Out, 13 Minn. 341; StaU
V. Shippey, 10 Id. 223; StaU v. Johnson, 40 Conn. 136; Andersen v. State,
43 Id. 514; S. C, 21 Am. Rep. 669; People v. Kleim, Edmonds* Sel. Cas.
13; Blaekbum v. StaU, 23 Ohio St. 146. Gibson, C. J., in charging the
jury in Commonwealth v. Moder, 4 Pa. St. 267, said: "Bat there ui a
moral or homicidal insanity, consisting of an irresistible inclination to kill,
or to commit some other particular ofiense. There may be an unseen liga-
meat pressing on the mind, drawing it to consequences which it sees, but
can not avoid, and placing it under a coercion, which, while its results are
cWarly preceived, ui incapable of resistance. The doctrine which acknowl-
edges this mania is dangerous in its relations, and can be recognized only in
the clearest cases. It ought to be shown to have been habitual, or at least to
have evinced itself in more than a single instance." In Blackburn v. State^ 23;
Ohio St. 165, the form of question to be submitted to the jury, which* was ap.
proved by the oourt, is: *' Was the accused a free agent in forming the pux^
408 State v. Mart.kb. [Alabama^
pose to kin? Wm he at the time capable of jadgmg whether that act was
right or wrong ? And did he know at the time that it was an offense against
the kw8 of Qod and man T^ The form of instraction approved in Smith y. Com-
numweaUh, 1 Da v. 232; is: "The tnie test of responsibility is, whether the
aocosed had sufficient reason to know right from wrong, and whether or not he
had sufficient power of oontrol to govern his actions." The chai^ge approved in
8taU v. €ha, 13 Minn. 308, is as follows: " That the defendant is not entitled
to an acqnitttl on the groond of insanity, if at the time of the alleged of-
fense he had capacity sufficient to enable him to distingnish between right and
wrong as to the particular acts changed, and understood the nature and con-
sequences of his acts, and had mental power sufficient to apply that knowl-
edge to his own case." And Dillon, C. J., delivering the opinion of the court
in the case of 8UUe v. FeUer, 26 Iowa, 83, said: ** The jury, in substance,
should be told that if the defendant's act in taking the life of his wife (if he
did take it), was caused by mental disease or unsoundness, which dethroned
his reason and judgment with respect to that act, which destroyed his power
rationally to comprehend the nature and consequenoes of that act, and
which, overpowering his wUl, irresistibly forced him to its commission, then
he is not amenable to legal punishment." Judge Brewster, in charging the
jury in CommonweaUh v. Hcukett, 2 Brews. 497, says: "A review of all the
authorities I have been able to examine satisfies me that the true test in all
these cases lies in the word 'power.' Has the defendant in a criminal case
the power to distinguish right from wrong, and the power to adhere to the
right and to avoid the wrong ? In these cases has the defendant, in addition
to the capacities mentioned, the power to govern his mind, his body, and his
estate f* It will be seen from the extracts quoted above, how far those courts
have departed from the English rule, on the subject under discussion.
Cases Discabdino all Tbstb. — ^Two cases decided by the supreme court of
Kew Hampshire, the first in June term, 1869, and the other in June term,
1871f may be said to mark an era in the history of the subject of this note.
These cases are, 8taU v. Pike, 49 K. H. 399; S. C, 6 Am. Bep. 533; and
SttUe V. Jones, 50 Id. 369; S. C, 9 Am. Bep. 242. Pike was indicted for
murder, and tried before Perley, G. J., and Doe, J., October term, 1868,
and convicted of murder in the first degree. On the trial, the court in-
structed the jury, ** that if they found that the defendant killed Brown in
a manner that would be criminal and unlawful if the defendant were sane,
the verdict should be ' not guilty by reason of insanity,' if the killing was
the offspring or product of mental disease in the d^endant; that neither
delusion nor knowledge of right and wrong, nor design or canning in plan-
ning and executing the killing, and escaping or avoiding detection, nor
ability to recognize acquaintances, or to labor or to transact business, or man-
age affairs, is, as a matter of law, a test of mental disease; but that all symp-
toms and all tests of mental disease are purely matters of fact to be determined
by the jury." The court also instructed the jury, that whether there is such
a mental disease as dipsomania, and whether defendant had that disease, and
whether the killing of Brown was the product of such disease, were questions
of fact for the jury. These instructions were approved by the supreme court
in the first of the cases above mentioned. Judge Doe delivered, on this oc-
casion, a remarkably able opinion, in which he discussed at length the whole
subject of tests of mental disease. It would be obviously impossible in the
limits of this note to epitomize the arguments and illustrations of the learned
judge. He opens the discussion of this question by saying: '* This was the
first instance in which such instructions were ever given; but they are an ap-
plication of ancient and fundamental prindplee of the common law. A prod-
Jan. 1841.] State v. Maki.rh. 409
uet of mental dlaeftse is not a oontraot, a will, or a crime; and the tests of
mental disease are matters of fact: Boardtnan ▼. Woodman, 47 N. H. 147-160.
Tried by the standard of legal preoedent, the instmctions are wrong; tried by
the standard of legal principle, they are right." And after reviewing the van-
•COS tests proposed, he concludes that they are all unsatisfactory, and closes
the disenssion as follows: **The whole difficulty is, that courts have under-
taken to declare that to be law which is a matter of fact. The principles of
the law were maintained at the trial of the present case, when, experts having
testified, as nsual, that neither knowledge nor delusion is the test, the court
instructed the jury that all tests of mental disease are purely matters of fact,
and that if the homicide was the o£&pring or product of mental disease in the
defendant, he was not guilty by reason of insanity.**
In the ease of State ▼. Janes, 60 N. H. 369, S. 0., 9 Am. Bep. 242,
the following charge was dedded to be correct: '*If the defendant killed
bis wife in a manner that would be criminal and unlawful if the de-
fendant were sane, the verdict should be * not guilty by reason of insanity,'
if the killing was the offipring or product of mental disease in tiie
defendant. Neither delusion, nor knowledge of right and wrong, nor
design or cunning in planning and ezeonting the killing and escaping or
avoiding detection, nor ability to recognize acquaintances, or to labor, or
transact business, or manage affairs, is, as a matter of law, a test of men-
tal disease; but all symptoms and all tests of mental disease are purely
matters of &ct to be determined by the jury. Whether the defendant had
a mental disoane, and whether the killing of his wife was the product of such
diseaaey are questions of fact for the jury. Insanity is a mental disease-
disease of the mind. An act produced by mental disease is not a crime. If
the defendant had a mental disease which irresistibly impelled him to kill his
wife — if the killing was the product of mental disease in him — ^he is not
guilty; he is innocent — as innocent as if the act had been produced by in-
voluntary intoxication, or by another person using his hand against his utmost
resistance. Insanity is not innocence unless it produced the killing of his
wife. If the defendant had an insane impulse to kill his wife, and could
have successfully resisted it, he was responsible. Whether every insane im-
pulse is always irresistible, is a question of fact. Whether in this case the
defendant had an insane impulse to kill his wife, and whether he could resist
it, are questions of fact. Whether an act may be produced by partial insanity
when no connection can be discovered between the act and the disease, is a
question of fact." The opinion in this case, which was a very learned and
exhaustive one, was delivered by Judge Ladd, and ably supports the views
of Judge Doe in the former case. The decision^ in these cases have been very
highly applauded by some: See 4 Am. L. Rev. 236; 15 Id. 726; Kay's Med.
Jur. Ins., sec. 44; Maudsley, Resp. in Ment. Dis. 104. By others they have
been more or less severely criticised: See Whart. & Stille's Med. Jur. Ment.
Unsoundness, sees. 108 et seg.; 1 Biah. Crim. L., sec. 383.
In Stevens v. State, 31 Ind. 485, it was decided that an instruction to a jury,
that if they believed from the evidence that the defendant knew the differ-
ence between right and wrong in respect to the act in question; if he was
conscious that such act was one which he ought not to do, and if that act
was at the same time contrary to the law of the state, then he \b responsible
for his acts, is not law. Gregory, J., who delivered the opinion of the court,
said, that there were very strong reasons for holding that the charge of Chief
Justice Perley, given above, is the true law on the subject. In the cose oi
Boppe v. People, 31 111. 385, which was decided in 1863, several years prioi
to the New Hampshire decisions, above referred to, Bxeese, J., who delivered
410 State v. Maklicr [Alabama,.
the opinion of the ooart, said: "In the midst of this ancertainty, with th»
best reflection and examination we have been able to give to this very im-
portant and most interesting question, we have oome to the oondosion, thai
a safe and reasonable test, in all sach canes, would be, that wherever it should
appear from the evidence, that at the time of doing the act charged, the
prisoner was not of sound mind, but affected with insanity, and such affoc-
tion was the efficient cause of the act, and that he would not have done tL»
act but for that affisotion, he ought to be acquitted.*' This decision seems tt>
be the forerunner of the decisions in New Hampshire. Whatever may be
the final outcome of the conflict between the old and the new doctrine on
this subject, it seems to us that, at the present time, the former has on its
side the greater weight of authority; the hotter the sounder reasons. All ad-
mit that the practical difficulties in dealing with the subject of insanity as a
defense are very great, owing to our imperfect knowledge of mental disease
No doubt it would be very desirable to iiave, in the administration of Justice^
some test or rule by which the law could measure the degree of insanity
which renders a man legally irresponsible for his acts. We have seen that
various eflbrts have been made to discover such a tsst. The suooeas with
which these efRnrts have been crowned has not been great. If in the present
state of our knowledge, the discovery of such a test is unattainable, why
should we continue to juggle with words, and delude ourselves into the belief
that we have that which we do not poaBess ? A very lively conflict has been
going on for some years between the lawyers and the doctors, in regard to
the test of responsibility in criminal cases, wherein the defense of insanity is
set up. The subject is sufficiently difficult to demand the united wisdom of
the two professions, and in the interest both of science and of justice it is to
be hoped they will unite their energies in an honest endeavor to solve a ques-
tion which has hitherto mocked the wisdom of the wise in all professions.
BuBDKN OF Pboov. — ^Where a defendant, under indictment for crime,
pleads not guilty, and sets up insanity as a defense, upon whom does the
burden of proof rest ? The authorities on this point are decidedly discordant.
Perhaps the greater weight of authority ia in favor of the proposition that the
burden of proof, in such cases, rests upon the party alleging the insanity: 1
Whart Grim. L., sec. 60; 2 Bish. Grim. Proc., sec. 670; Regina v. Stokes^ 3 Gsr.
& K. 188; Begina v. LayUm, 4 Cox's G. G. 149; Uwted State* v. Lawtaux, 4
Cnmch's G. G. 614; (Tnited 8UUe$ v. MeOlue, 1 Gurt 1 ; GuUeau*$ case^ 10 Fed.
161, 163; State v. Lo^nar, 10 Ohio St. 598; Bergin v. StaU, 31 Id. Ill; BoweU
v. Commonweaiih, 20 Grstt 860; PeoffU v. McDoneU, 47 Gal. 134; People v.
Bell, 49 Id. 485; StaU v. Lawrence, 57 Me. 574; State v. Fetter, 32 Iowa, 49;
State v. Coleman^ 27 La. Ann. 691; Humphreye v. State, 45 Ga. 190; StaU v.
Jlwidley, 46 Mo. 414; McKenMe v. State, 25 Ark. 334; Lynch v. Common-
wealth, 77 Pa. St. 205; StaU v. Broton, 12 Minn. 538. But iu taking upon
himself the burden of proof of insanity, the defendant is only bound to show
it by a preponderance of evidence sufficient to overcome the presumption of
sanity: 2 Bish. Grim. Proc., sec. 671; StaU v. Hundley, 46 Mo. 414; People v.
WiUon, 49 Gal. 13; Commonioealth v. Boswell, 20 Gratt 860; People v. Mc-
Conn, 16 N. Y. 58; CommonweaUh v. Bogere, 7 Mete. (Mass.) 500; StaUx.
Starling, 6 Jones' L. 366; Pannell v. CommonweaUh, 86 Pa. St. 260; StaU v.
StrautUr, 11 W. Va. 745; Bond v. State, 23 Ohio St. 349; People v. Haney
Hamilton, 9 Pac. G. L. J. Bat see StaU v. Spencer, I Zab. 196, where it
was held that insanity must be prove<l beyond a reasonable doubt.
Mr. Bishop, in his work on criminal procedure, sec. 673, says: ** The doc-
trine of principle, sustained by a large part of our courts, and rapidly becom-
ing general, is, that as the pleadings inform us, insanity is not an inne fay
Jan. 1841.] State v. Hughes. 411
itself, to be paaseJ on separately from the other iaeaes, bnt, like any other
matter in rebattal, it is involved in the plea of not guilty, upon which tho
borden of proof is on the prosecntijig power; the jury to oonviot or not, ac-
cording as, on the whole showing, they are satisfied or not, beyond a reason-
able doubt, of the defendant's guilt." The learned author cites in support of
this position the following cases: Wright v. PeopU^ 4 Neb. 407; State v.
Smith, SSMf>,2ffJ; State v.Cfrtnqford^ II Kjtax.S2; and WeetmoreUmdr. State,
45 CkL 226. But these oases do not, it seems to us, fully sustain the author's
views in their full extent. No doubt the doctrine laid down by Mr. Bishop
would, if generally accepted by the courts, remove a great deal of contradic-
tion and confusion now found in the decisions on this question.
iMPBACBiaHT OF WxxHXBBiB: See Sutton V. Reagan, S3 Am. Dea 466|.
Fnmmn Bamk ▼. Pa. D.AM. S. N. Co., Id. 687; FHee v. BmQUt, 21 Id.
62, note 0S.
SlATB V. HuGHBa.
£9 kltk^MMkt 103.]
PKMcnr iHBionD lOft Cbxmznal Owbnsb sab Biobt to bb Pubuit i»
eout pending his trial, that he may discuss questions of law and laot^
and point out and argue objections to the action of the jury, or to other
proceedings in the cause. This right is guanmteed to him by sea 10^
art. 1, of the constitution of Alabama.
AoousBD HAS Right to in Pbbsxnt whbn Vxbdiot m BcruBifBD, that
he may have an opportunity to poll the jury if he so desires*
Niw iKDicncXNT NxBD NOT BB PBBVBBBBD against a prisoner where a
former judgment of ccmviction was reversed and the cause remanded for
a new trial, unless the indictment was adjudged insufficient.
Act Pbovxdiko fob thb Holdiko or Spbchal TKBMSof courts for the trial
of criminal causes, is not repealed by a subsequent act authorizing such
courts, when unable at the regular terms to dispose of all the busiuesa
pending therein, to hold special terms to be devoted exclusively to th»
civil and chancery docket. Such acts are entirely consistent with each
other, and may both operate together.
Bbodviko Vbbdict in Absbvgb of Fbisonbb does not entitle him to a
discharge.
iNDicfTiaEErr for murder, tried in the drouit court of Dallas^
The defendant pleaded: 1. Not guilty; 2. Auirefois acqwU.
The defendant was found guilty, and judgment entered accord*
ingly. The prisoner then moved in anest of judgment on th»
following grounds: 1. That the verdict was given in the ab-
sence of the accused; 2. That the court erred in charging the
jury that an acquittal could only be by a jury under the defend-
ant's plea of autrefois acquit; 3. That the reversal by the
supreme court was an acquittal of the defendant on the old
indictment, and that he could not be retried thereon; 4. Thai
the appointment of the special term for the trial of the cause
412 State v. Hughes. [Alabama^
was wiihont aathorify of law. The only proof offered under the
plea of auhrefais acquM^ was the cerfciflcate of xeyersal in the
supreme court and the opinion of the conrt in the case.
M, W. Lindsay, aUomey-ffeneral, for the state.
O, W. Oayle^ for the prisoner.
OoLLDEB, 0. J. The tenth section of article 1 of the constitation
declares, that '' in all criminal prosecutions the accused has a
right to be heard by himself and counsel/' etc. Again, ** and
in all prosecutions by indictment or information, a speedy pub-
lic trial, by an impartial jury of the county, or district, in which
the offense shall have been committed; he shall not be compelled
to give evidence against himself, nor shall he be depriyed of his
life, liberty, or property, but by due course of law." This con-
stitutional provision guarantees to the accused the right, not only
to discuss questions of law and fact, which may arise, either
preparatory to, or pending the trial before the jury, but to
point out and argue objections to the action of the jury or other
proceedings in the cause. That he may avail himself of this
privilege, the opportuniiy must be afforded him of coming into
court and being heard, before he is foreclosed of any legal ex-
ception. If a different course is pursued, and a sentence pro-
nounced against him extending to life, liberty, or property, he
can not be said to have been convicted ** by due course of law."
But we need not consider the first cause moved in arrest of
judgment, in reference to the provision of our constitution, for
so &ras it concerns this question, the constitutional declaration
is afSrmatoiy of the common law. Mr. Justice Blaokstone, in
treating of a trial in a criminal case, says: ** When the evidence
on both sides is closed, and indeed when any evidence hath been
given, the jury can not be discharged (unless in cases of evident
necessity) till they have given in their verdict; but are to con-
sider of it, deliver it in, with the same forms as upon civil causes;
only they can not, in a criminal case, which touches life or mem-
ber, give a privy verdict."
The precise question we are considering, came before the su-
preme court of New York, in The People v. PerkuM, 1 Wend.
91. In that case the prisoner had been indicted for a forgery.
When the cause was submitted to a jury, he was committed to
jail, and on the coming in of the jury, their verdict was received
without the prisoner being brought into court. On being
brought up to receive sentence, he objected that he was not
present when the verdict was received; and the court of sea-
Jan. 1841.] State v. Hughes. 413
Bions, before which he had been tried, suspended judgment until
the advice of the supreme court was obtained. The court said
that the verdict was irregular, and, though many of the ancient
forms on trials are now dispensed with, the prisoner should have
been present on receiving the verdict, that he might have availed
himself of the right of polling the juiy. And a new trial was
consequently granted. In that case it was held to be the dear
right of the prisoner to poll the jury; while in the other, it is
considered as depending for its exercise upon the discretion of
the court: ComrrumweaUh v. Boby, 12 Pick. 496, 613; Fellow's
case^ 6 Chreenl. 333. But it is exercised, we believe, in all crim-
inal courts in the United States, whether as an acknowledged
right or granted ex gratia curicB: Ibx v. Smiih, 3 Cow. 23; Oood-
win'8 trial, 18 Johns. 188 [ 9 Am. Dec. 203]; TJie StcUe v. Har-
den, 1 Bailey, 3. Lord Hale says, 2 Hale's P. C. 299, that
when the jury respond to the general inquiry made of them, by
saying they have agreed, the court may examine them t^ the
poll; and such has been understood to be the law in this state,
since the organiasation of the government. This brings us to
the conclusion, that by receiving the verdict of the jury, in the
absence of the prisoner, he has been deprived of a legal right;
and its reception was consequently irregular.
2, 3. The reversal of the conviction of the prisoner, at a pre-
vious term of this court, was not intended to operate so as to
discharge him from a further trial for the same offense. The
cause was then remanded for that purpose, and it is so said in
the opinion of the court. There was no necessity for preferring
a new indictment; the one already found was unaffected by the
judgment of reversal. The insertion of the words, '' unless in
the interim he should be discharged by due course of law,'' after
the direction that the cause be remanded for a new trial, was
dictated rather by a conformiiy to form than anything else; for
it is difficult to conceive how the prisoner could be discharged,
otherwise than by an executive pardon, until tried.
4. By the statutes of 1807 and 1819, as consolidated, it is
enacted, that "a speeial session of any circuit court may be
held, by order of the judge or judges of the same, whenever it
may be necessary, for the trial of criminal causes; and the said
judges, at their discretion shall have power, on the application
of any person charged with a criminal offense, to hold a special
session, for the trial of such person; and the said judges shall
direct the sheriff of the county in which such special session
shall be holden, to return thereto twenty-four persons, properly
414 State v. Hughe& [Alabama,
qualified, to senre as jurors, who shall be selected in the miiTiTim*
now prescribed by law, in such cases — any or all of whom fail-
ing to attend, or being challenged, or set aside, a jury of by-
fitanders shaU be impaneled for the trial of the cause:" Aik. Big.,
«ec. 14, p. 242.
The prisoner was tried at a q^ecial term of the drcnit court of
Dallas, holden for the trial of criminal causes. At the preced-
ing regular term, the presiding judge stated upon the record his
entire inabilily, in consequence of indisposition, to proceed
*' with the disposition of the business on the sevenil dockets of
the court," and appointed a time when a q^ecial term should be
holden, and made the appropriate order in regard to the drawing
and summoning a jury. It was argued for the prisoner, that the
court, at which he was tried, was irregular and unauthorized,
because the act of 1826 provides, that when " the circuit courts
ahould not be able to dispose of all the business depending in any
x>f the said courts, at their regular terms, it shall be the duty c^
the judge of the circuit," etc., to hold a special term, '* devoted
exclusively to the civil and chancery docket:" Aik. Dig., sec. 16,
p. 242. This statute, it is insisted, repeals the previous enact-
ment in regard to special terms for the trial of criminal causes.
We think this aigument can not be maintained. The statutes
are entirely consistent with each other — they have different ob-
jects in view, and may both operate together.
Having attained the conclusion that the judgment of the circuit
oourt must be reversed, we are now to inquire what further order
«hall be made in the cause. In the case of The, People v. Perkins^
1 Wend. 91, the prisoner was ordered to abide a new trial — ^that
<sase, we have seen, was in all respects like the present. In Ned
T. The State, 7 Port. 187, it appeared that the jury, to which the
<sause of the prisoner was submitted, were dischaiged, by an oiv
der of court, without a sufficient reason therefor, from rendering
their verdict. That case, it is insisted, is authority to show that
the prisoner, in the present case, should be dischaiged. The
•cases, it is conceived, are not analogous. In Ned v. Hie Stale,
the court does an act in despite of the prisoner's rights, which
might have operated to his prejudice — ^in the case before us, the
•court was merely passive, and under a misapprehension of law,
suffered an error to intervene. There, the prisoner was denied
the right of trial, by a jury of his own selection — ^here he was
thus tried, but the jury have irregularly returned their verdict
Suppose the prisoner had been in court when the verdict of the
jury was received, and had then proposed to poll them, and his
Jan. 1841.] Lutell v. Zuntz. 415
cequest been refoBed, would he haye been entitled to a discharge t
The lefosal, we have seen, would have been an error, yet we are
•of opinion that it would have been a mere irregolarity, which
wonld not have put an end to the prosecution. The objection is
Aot that the prisoner was not allowed, upon request, to poll the
jury, but that not being in court when the verdict was returned,
he had no opportunity of making such a request. He can not
•certainly occupy a more favorable position than he would do, if
the right had been expressly denied.
The judgment of the circuit court is reversed, the cause re-
manded, and the prisoner directed to remain in custody, to await
tk trial de novo, imless, in the interim, he shall be discharged
hj due course of law.
AoousED, WKur MUST Bi FsRSOirALLT Pbbbbit AT Tbzal: See ^S^perry ▼.
<hmmmiweaWi, 33 Am. Deo. 261; Fighi t. 8kUe^ 28 Id. 028^ note 629.
DncHABOB OF JuBT TS Absbnob ov thb DBfBNBAiiT, beottuse they ooold nol
agree, diaohei)geB the defendant: See note to 8UUe t. ifefeg, 21 Am. Dee.
4Sa7« and the oaiea there dted.
LCETELL V. ZUKTZ.
[9 Ambauji, 366.]
fiiOBT TO Bms Asms Salb made by order of a ooort of ohanoefj la one of
the attribatea of that court
Sboubh Rulb» to Opbn Salb whenever advance of ten per cent, on the
former sale ia offered, ia not adopted in this atate, being manifestly nn-
aoitable to the habits of our people, and to the state of thinga <»^«tf«g
amongHt nsi
"Whbbb Sibanobb Pubohabbs at Mobtoagb 8alb» it will not be set aside
for mere inadequacy of price, however gross, imless there be some on-
fairness at the sale, or the parties interested are sorprised, without fanlt
or negligence on their part; and in no case of this kind will it be set
aaide after confirmation, imless f rand can be imputed to the purchaser,
which waa unknown to those interested when the confirmation waa made.
fin>DXNG8 WILL BB OpBNBD OVCB, WH2BB MOBTOAOBB IS PUBCHASBB, and
the debt ia not dischargee by the sale, if a reasonable advance is offered,
together with costs and expraises, which should be deposited in court.
In such case an advance of at least ten per cent., and in no case of less
than two hundred dollars, will be required.
^BBVALENCB OF YkLLOW FbVKB AT TiMB AND PLACE OF SaLB, OWing tO
which a large part of the population had removed, and business had been
generally suspended, furnishes a good ground for setting aside the sale,
and for ezcusiug the non-attendance of the mortgagee.
•Saul can only bb Set aside upon Payment to thk TuRcnASER of the
purchase money, of all sums laid out by him in improvements, and of a
liberal allowance for all trouble, costs, and expenses incurred by him.
416 LiTTELL V. Zuirtz. [Alabanuv
PvBCHAflXB GAH NOT Bs Grabobd WITH Bxn, vihiBxe BtJ» Is Set 9md%, na-
le88 he has actually received it.
Pethion filed by Littell againfit Zuntz, to set aside a sale
made by the master, pursuant to a decree of foreclosure in a suit
brought by him against one Warren. The amount due on the
mortgage, for which the lands were ordered to be sold, was nine
thousand four hundred and ninety-one dollars, witti interest
The premises were sold by the master on the first Monday in
September, 1839, when the yellpw feyer was at its crisis in Mo-
bile, where the sale took place, and when most of the inhabit-
ants, who had the means, had left the ciiy on account of the
pestilence. The sale was held in the center of the contagion.
The property was amply sufficient to satisfy the mortgage. The
defendant purchased the premises for the sum of five hundred
dollars. Neither the petitioner nor his attorney was present at
the sale. The facts above stated were alleged in the petition,
and were substantially established by affidavits filed by the pe-
titioner. Zuntz answered the petition, admitting the fact of
he purchase at the time and place and for the amount al-
.qKI. He alleged that one Collins, agent of the petitioner, was^
pivdent at the sale, and made no objection. He alleged that he
^lad expended five hundred dollars in improving the premiaeif
since his purchase, and had been put to other costs and trouble.
Upon the hearing of the motion to set aside the sale, the chan*
cellor dismissed the petition, and decreed that the report of the
sale stand confirmed. To this decree the complainant prayed an
appeal to this court, which was granted.
Stetoart, for the petitioner.
Campbell, contra.
Obmond, J. In England, it is almost a matter of course to
open the biddings, when a larger sum is offered for the property
before the confirmation of the sale, and in some instances after-
wards. By a long series of adjudications, it has been perfected
into a system; and as the general rule, the bidding will be
opened whenever an advance of ten per cent, on the former
sale is offered. This is shown conclusively by the cases referred
to by the plaintiff in error, to which many might be added.
This is the first time the question has been raised in this coturt ;
and we are not aware that the practice of opening the biddinga
upon the principles of the English chanceiy, has ever obtained
in this state. But the right to set aside a sale made by an order
of the court of chancery, when a proper case is presented, must
JaxL 1841.] Leitell v. Zxmrz. 417
of neoeasity be an attribaie of that court, as the same power is
ezerdsed by a court of law, when its prooess has been abused,
and the power of a court of ohanceiy certainly can not be in-
ferior. We feel ourselyes, therefore, authorized to lay down
certain rules to regulate this proceeding in future, founded on
the principles of natural justice, and having reference to the
actual existing state of things in this country. We do not
think it proper to adopt the English rule in all its extent, as it
is nuinifestly unsuitable to the habits of our people, and to the
state of things existing amongst us. In England, land has a
fixed and determinate value, and does not fluctuate in the mar-
ket like personal property; but with us the value of land is ex-
ceedingly fluctuating, and its price frequently varies very much
in the course of a few months, and is affected generally by the
same causes which operate on personal property. Indeed, it
may be said that its price is not so fixed and stable, because not
in such general demand as one species of our personal prop-
erty— slaves. To open biddings in all cases, therefore, would
be exposing the purchaser to a higher bid, if from any cause,
land should rise in price, whilst he would be compelled to keep
it if it fell. This would be obviously unjust as to the purchaser,
and contrary to public policy; as it would injuriously affect aU
Bales of this character, and thus defeat the very object of the
rule itself. We are therefore of opinion, that when a stranger
is the purchaser at a mortgage sale, it will not be set aside for
mere inadequacy of price, no matter how gross, unless there be
some unfair practice at the sale, or unless those interested are
surprised, without fault or negligence on their part; and in no
case of this description, after a confirmation of the sale, unless
fraud can be imputed to the purchaser, which was unknown to
those interested at the time of the confirmation of the sale.
But where the mortgagee is the purchaser, and the debt se-
emed by the mortgage is not discharged by the sale, no reason
is perceived why the biddings should not be opened once, upon
the offer of a reasonable advance on the former sale, together
with the purchaser's costs and expenses, which should be depos-
ited in court; what would be a reasonable advance, would to
some extent depend on the amount in controversy. In the Eng-
lish chancery, the rule is to require an advance of at least ten
per cent, on the first sale, besides costs and expenses; but in no
case will the biddings be opened, where the deposit is less than
forty pounds: 1 Sim. & Stu. 20; which rule is probably as good,,
•s a general rule, as any that could be adopted. The reason fox
Am. Dso. Vol.. XXXVI~97
418 LiTTELL V. ZUNTZ. [AlabamHi,
{he distinction here made between the purchase hj a stranger
and the mortgagee, is to prevent the oppression, which it is in
the power of the mortgagee to practice, in patting down compe-
tition at the sale, by preventing any one from obtaining the
property, unless he gives its value. The object of the sale is
not to transfer the property of the mortgagor to the mort-
gagee, but to pay the debt; he can not therefore be injured by
any proceeding, which has that for its object, and does not cause
any unnecessary dehiys or expense: Duncan et al. v. Dodd, 2
Paige, 99; WUUamson v. Dale etal,,3 Johns. Ch. 290; WoodkuU,
Ea^T, V. OAcyrne, 2 Edw. 614.
In this case, property worth eight thousand dollars, was sold
by the master for five hundred dollars. The purchaser was a
stranger, attracted to the sale by the advertisement; and accord-
ing to the principles here laid down, notwithstanding the inad-
equacy is so gross as almost to demonstrate the unfairness of
the sale, it can not be set aside, unless the complainant, who in
this case is the petitioner, can show surprise, unmixed with fault,
or neglect on his part. The sale was made at a time when the
yellow fever was raging in the city of Mobile; when according
to the affidavits filed by the petitioner, the alarm created by the
pestilence, had driven from the city a large portion of its popula-
tion, and suspended the business and commerce of the city, at
least to a very great extent. In our oproion, this affords an am-
ple reason for setting aside the sale. It is impossible to suppose,
that under such drcumstances, property exposed to sale, could
bring anything like its fair value, not alone by withdrawing
competition, but also because the presence of the destroying
pestilence, would indispose the minds of most men to make in-
vestments of any kind; and it was doubtless owing to these
causes, that the property in question did not bring one fifteenth
of its value. It also furnishes a sufficient excuse for the absence
of the complainant at the time of the sale.
The defendant in his answer states, that one OoUins, the agent
of the plaintiff, was present at the sale, and interposed no ob-
jection. But there is no proof that Collins was the agent of the
plaintiff, even if we consider the affidavit of the master, as regu-
larly sworn to, and a part of the record, which appears to be
doubtful. His statement is, that he '' understood that Collins
was the agent of the plaintiff, and saw him on the ground a short
time before the sale of the property." This is not suffidenUy
definite ta charge the plaintiff with notice of the sale. If Collins
was in fact the agent of the plaintiff, and present at the sale»
Jan. 1841.] Littell v. Zuntz. 419
nothing could have been easier, than to have established it con-
dosiyely.
But althotigh for these reasons the sale must be set aside, it
can only be done on payment to the defendant of the purchase
money, of aU sums laid out in improvements on the prop-
erty, and a liberal allowance for aU trouble, costs, and ex-
penses incurred by him. It is also insisted by the counsel for
the plaintiff in error, that the defendant should be charged with
the value of the use of the property, during the time he has held
it, or at least for the rent which has accrued, if he has rented
out the property. The defendant was let into the possession of
the property as a purchaser without fault on his part, and his
purchase can not with proprieiy be changed into a tenancy, so as
to charge him with rent for the use of it. But if he has not oc-
cupied it himself, but has rented it out, no reason is perceived
why he should not account for the rents actually received by
him. The object of the court is to place him as near as possi-
ble, and without injury to him, in the same situation, as if he
had never made the purchase; and therefore, although he should
not be charged with rent, if he had occupied the premises him-
self, no reason is perceived why he should be allowed to rent to
mother, and thus make a profit to himself by an invalid sale.
The decree of the chancellor, therefore, confirming the report
of the master, is reversed, and this court,. proceeding to make
such decree as should have been made by the chancellor, hereby
order and decree that the report of the master be vacated, and
the sale made by him be annulled, and the deed for the prem-
ises, if any was made, be produced and canceled. That the
master be directed forthwith to state an account between the
parties, charging the plaintiff with the purchase money, the
amount of aU expenditures, and costs laid out in the actual
improvement of the property, with interests thereon, and a lib-
eral allowance for the trouble of the defendant; and charging
the defendant with the amount of the rent actually received by
him, with interest, and if the balance be found against the plaint-
iff, it shall be paid on confirmation of the report; if in his favor,
a decree shaU be rendered for the sum thus found due the plaint-
iff; and any claim for rent not received shall be transferred to
the plaintiff; and thereupon the master shall proceed to sell the
premises as provided in the original decree. Each party will
pay his own costs in this court.
Let the cause be remanded for further proceedings.
420 HussEY V, Elrod. [Alabama.
HUBSEY AND WiFE V. ElBOD AND WiFB.
[3 ATjABAMA, 880.]
ADMI88IOVB 07 Win ABi NOT ADMISSIBLE to charge her hnaband in an act «
•gainst them for an assault and battery committed by hei
Ebbob to Talladega drcuit court. Trespass brought by the
plaintiffs, to recover damage for an assault and battery com-
mitted by the wife of the defendant upon the wife of the plaint-
iff. The defendant obtained a verdict and judgment. From
the bill of exceptions it appeared that the plain^«ff offered to
prove the assault and battery complained of » by the confesaionB
or admissions of the wife of the defendant. The court rejected
this offer, and the plaintiff excepted.
CkOtan, for the plaintiff in enor.
Win, B* Moirtwi, coniru,
OsMOHDy J. The general role of law is, that huabaiid and
wife can not be witnesses, either for or against each other,
either in civil or criminal proceedings. The rule is founded
on the identity of their interest, and because it is neceaaazy
to guard the security and confidence of private life, which
would be constantly invaded, if the married pair, in this respect,
stood towards each other, as they do towards the rest of the
world. It would seem to follow that, as the wife can not give
evidence, so neither can she charge her husband by an admie-
sion; for that would let in all the mischief which the rule is de-
signed to prevent. It was so held in the case of Denn v. White
and Wife, 7 T. B. 112, and Hawkins v. Hatton and Wife, 2 Nott&
If. 874. The admission of a wife, during coverture, of a debt
due before marriage, is not admissible as evidence against the
husband: 1 Halst. 366.'
There is no error in the judgment of the oorut below, and it
is therefore affirmed.
ADimWTBTlJTT 07 TlSTIlIONT Of HUBBAKD AXh WtWM fOT OT I^UlMt 6tdl
other: See State ▼. JcUf, S2 Am. Deo. 666, and note 660^ where other eases
in this series are oolleoted.
T.
June, 1841.] Foabd v. Johnson. 421
FOABD V. JOHNBON.
[9 AT.4BiM4, M6.]
Konos ov NoN-PATniiT ov Bill of Exghanob Deposited nr thb Post
omos and addressed to the drawer at the plaoe where the bill is dated,
is not sufficient to charge him, unless that was the post-office nearest hit
residence, or unless the holder, upon diligent inqniry, was unable to as-
certain his residence.
Assumpsit on a bill of exchange drawn by the plaintiff in
error, at Mobile, and indorsed to the plaintiff below. The
cause was tried on the general issue. The plaintiff below
offered in evidence the bill declared on, and a notice of non-
payment and protest, which it was shown was deposited in the
post-office at Mobile, directed to the defendant at that citj.
The defendant then proved that he resided in the connty of
Sumter when the bill was drawn, and had ever since continued
to reside there. The defendant then moved the court to chai^
the jury that the notice of non-payment was insufficient. The
court refused to charge as requested, and the defendant ex-
cepted. There was a verdict and judgment for the plaintiff,
and the defendant prosecuted a writ of error to this court.
Boyd, for the plaintiff in error.
J. B. Clark, for the defendant in error.
CoLUiB, C. J. The only question raised at the argument
was this: Where a bill is dated at a particular plaoe, can the
drawer be charged by a notice of non-payment, deposited in the
post-office, addressed to him at that place, although it appear
that he did, at the time the bill was made, and has ever since
resided elsewhere, much nearer other post-offices than that in
which the notice was deposited? In the case of MbOrew v.
Tbidmin, 2 Stew. & P. 436, Judge Taylor held, that it was not
sufficient to look for the drawer at the place the bill was dated,
if his residence be elsewhere. Drafts are often in the course of
tiade drawn in one place by persons who are known by all the
parties to them, to live at another. To sustain his conclusion
the learned judge cites Fisher v. Evans, 6 Binn. 541, which is a
case directly in point. But it has been insisted in argument,
that upon this point McOrew v. Toulmin is overruled by .fiobin-
son and Davenport v. Hamilton, 4 Stew. & P. 91. In that case the
bill was drawn at " Wigginsville." It was proved that at ma-
turity it had been regularly protested for non-payment, and a
notice thereof directed to the drawer at *' Wigginsville," de*
4i2U FoAfiD V. Johnson. [Alaban.i,
posited in ihe post-office at Ifofaile. There was no evidence
that the plaintiff knew of the drawer^s lesidencey or whether
there was a post-office at Wigginsyille. The circuit court
charged the jury, that the plaintiff had not used due dili-
gence; unless they belieyed that there existed a post-office at
Wigginsville; or ttiat the defendant had, in fact, received notice.
Judgment being rendered for the defendant, the plaintiffs
brought their case into this court. Lipscomb, C. J., in deliT*
ering the opinion of the court, said: *' The drawer of the bill
had designated his place of residence as Wigginsville. It was
in his power to have given it a more particular description; his
failing to do so, in aU probability, misled the plaintiff. They
may well have inferred from the description given, that the
place was of sufficient notoriety to dispense with any other.
If the maker's place of residence was not known to the holder,
and he could not ascertain it by using reasonable diligence, it
would relieve him from the neoessiiy of giving notice. We are
therefore of opinion, that the notice was sufficient, unless the
knowledge had been brought home to the holder of the bill,
that there was no post-office at * Wigginsville,' or that the maker
resided at or near a post-office.''
The court supposed, first, that the place where a bill was dated,
was to be regarded as the drawer's residenoe; that a notice ad-
dressed to him at that place by mail was sufficient, unless the
holder knew that there was no post-office there, or that the
maker resided at or near a post-office. True, it has been, held,
that where the drawer dates his bill generally as " Manchester,"
that a notice directed to him equally general sufficed: Mann v.
Ito88, By. & M. 249.* But the question in that case, was not
whether the place where the bill was dated, indicated the
drawer's residence so conclusively, as to make a notice sent
there sufficient; but it was, as to the generaUiy of the direction
of the notice, or whether the street and number of the drawer^s
residence, in a city as large as '' Manchester," should not have
constituted a part of the drawer's address.
In Chapman v. Lipscombe, 1 Johns. 294, the bill was drawn
and dated at New York, but the drawers, resided at Petersburg,
and the question was, whether notice should not have been sent
to the latter place. There was no evidence that the holder
knew that the defendants resided there; he made inquiry at the
banks and elsewhere, and being informed that the drawers re-
sided at Norfolk, he sent a notice, by mail, to them at that place,
1. JfoMiT. Momn, By. 9t M.9A9.
June, 1841.] Camp v. Camp. 423
and another addressed to them at New York. This was held suffi-
cient. The court cited this case, to sustain their opinion in iZo6in-
9on and Davenport v. EamiUon; but it will be seen that it is very
dissimilar, both in its facfcs, and the principles on which it rests.
If the place where the bill was dated, was to be regarded as the
drawer's residence, a notice sent to New York would have been
considered sufficient, without proof, that the holder had made
inquiiy upon that subject; but the holder was only excused from
^^ing due notice, upon the ground that, after employing
reasonable diligence, he could not ascertain where the drawers
resided. Such an excuse is always ayailable: Chit, on Bills,
486 et post^ and cases cited, 9th Am. ed.; WtUiams v. The Bank
of (he United States, 2 Pet. 96; Galpm y. Hard, 3 McCord, 894
[15 Am. Dec. 640]; Preston v. Daysson et al., 7 La. 7. The
most thorough examination has not furnished us any other
case, than that cited from 4 Stewart & Porter, in which the place
where a bill is dated is regarded such eyidence of the drawer^s
residencei as to relieye the holder of the bill from the necessiiy
of inquiring on the subject; and upon principle, it can not be so
considered. By giving locality to the act of drawing a bill, the
drawer admits that he is at that place, at that time; but certainly
not, that he will be there at the maturity of the bill. The right
of locomotion is accorded to all, and none exercise it more fre-
quently than those engaged in commerce.
It was then incumbent upon the holder of the bill in question,
if ignorant of the drawer's place of residence, to have made
diligent inquiry to ascertain it, and when ascertained there to
haye sent the notice. As this course was not pursued, the
county court ezred in its refusal to instruct the jury as prayed;
its judgment is consequently reversed, and the cause remanded.
KofKiOB ow NoK-PATiiiNT, WHAT SuifiGZXNT: See &tj^^eMen t. /VimroM^
as An. Deo. 281» note 288.
Gamp v. Gamp.
tSt Alabama, 683.]
OouiT ow Chakcosby wnx Bx8GDn> Ck>NTBACT lOB PuBOHASB 07 LAin>,whert
the vendor lepreeented to the vendee that a field of forty aoreB of rich
bottom land on an adjoining tract was indnded in the porehaae, although
raoh vendor had been previously informed by the owner of inch tracts
that he had ran oat the line between them with a pocket compaas, and
had ascertained that the field beloDged to him.
Ebbob to the chancezy court at Talladega. The opinion states
the case.
424 Camp v. Camp. [Alabamak
OhiUon^ for the defendant in error.
Obmokd, J. The bill prajB a resoisaion of the oontraot, on the
ground that it was obtained by the fraudulent representationfl
of the defendant. The foots are, that the complainant being
about to purchase land of the defendant, made an examination
of it with him for the purpose of ascertaining whether it con-
tained a sufficient quantity of valuable land to suit him. On
one of the boundary lines of the tract, half a mile in length, no
marks of the surveyor could be discovered but one third of the
•Hstance from one of the comers. That portion of the line not
'»»arked,was bounded by the lands of Colonel McEldeny^who had
•beared a field of rich bottom land, forty acres of which the de-
^ndant represented to the complainant to be part of the land
le was then offering to sell; pointed out where the line would
voss the fence, and designated the course of the line through
4ie field, by a reference to standing trees. It is now ascer-
tained, that not more than one acre of this land belongs to the
tract sold l^ defendant to complainant. The defense set up by
the answer and by the argument of counsel is, that the repre-
sentations were matter of opinion merely. The proof is con-
clusive to show, that the representations were made, and that
the defendant, before the sale, had information that the line did
not run as he represented it.
An examination of the case has satisfied us that the contract
was obtained by the representations of the defendant of mate-
rial facts, which he must have known at the time to be untrue,
and also that he concealed material facts within his knowledge,
which fair dealing required that he should have disclosed. The
complainant was a stranger in the neighborhood, and had never
seen the lands before. The defendant, who was the owner, was
well acquainted with it. It would naturally be an object of in-
terest with him to know how the lines of his tract ran in refer-
ence to this piece of valuable bottom land, which, if included
within his tract, would greatly increase its value; and accord-
ingly we find, that it had been the subject of conversation be-
tween him and the adjoining proprietor, who had the same in-
terest; and that the latter had informed him that if the marks
of the line which could be found were correct, that the land be-
longed to him, as he had run it oiit himself with a pocket com-
pass. Tet with this information of where the line did run, we
find liiTn not only concealing it from the complainant, but un-
dertaking to point out precisely where the line would run
through the field, designating the point where it would cross
Jane, 1841.] Camp v. Camp. 426
the fence, and its conrse ihrongh the field, hj a reference to
eensible objects upon or near the supposed line.
It is certainly tnie, that the course of the unmarked line, to
one who had no other guide than the extreme points, would be
matter of opinion or conjecture. Is the conduct of the defend-
ant explicable on this hypothesis? It has already been re-
marked that as the owner of the land, he must haye felt consid-
erable interest in ascertaining this fact; when this is considered
in connection with the manner in which the information was
given, the designation of the precise spot where the line would
enter the field; the indication of its precise course through the
field, the quantity of fine land which would be thus added to a
tract, which api>ears to be quite sterile, there can be but little doubt
of the quo ammo. But when to this is added the startling fact,
that he was informed by one who had run the line, that it was
different from his representations of it, but little doubt can exist
that the intention was to deceive. The principles of justice and
fair dealing, demanded of him a disclosure, that though such
was his opinion (if in fact he entertained it), that the line had
been run out by another, and that by his survqr the field was ex-
cluded. Had he done so, there can be no doubt that the pur-
chaser would have insisted on a survey of the land, to ascertain
its true boundary. It is impossible not to see in the whole con-
duct of the defendant a studied attempt to deceive, not only by
the assertion of a fact, which he either knew nothing about, or
knew to be untrue, but also, by the concealment of a fact, which
if disclosed, would have deprived his assertions of any claim to
belief.
It is contended, that the law will not assist a purchaser,
who does not inquire and examine for himself, but supinely
rests on the opinions of those with whom he is dealing. The
true meaning of this rule is, that the purchaser must judge for
himself, as to aU those matters which lie in opinion merely; as
for example, as to the value or quantity of the article he is about
to purchase; assertions upon these matters, by the vendor, should
pass for nothing; so also, if he should falsely attempt to bolster
up his declarations by imaginaiy opinions of others, these are
the common artifices or tricks of trade, which every one compe-
tent to make a contract, is, by law, presumed able to guard against.
Nor is the seller under any legal obligation to call the attention
of the purchaser to those qualities of the article offered for sale,
open to common observation, which depreciate its value, but he
must not resort to any artifice to conceal them. But the law is
426 Camp v. Camp. [Alabama^
not BO destitute of morality, as not to require each of the contract-
ing parties to disclose to the other all material &cts, of which he^
has knowledge, and of which he knows the other to be ignorant,
unless they are open to common observation; and not to forbid
any intentional concealment, or suppression of the material facta
necessary to be known, and to which the other has not equal
access, or means of ascertaining: 2 Kent's Com., 1st ed., 377,
and cases cited in support of the text.
It is true, the complainant might have refused his confidence-
to the representations of the defendant, and insisted on a sur^
yey to ascertain the boundary; but whilst the law exacts ordi-
nary care and diligence on the part of the purchaser to ascertaii^
the quality and quantity of the article he is about to purchase,
and ''does not go the romantic length of giving indenmiiy^
against the consequences of indolence or folly, or a careless in-
difference to the ordinary and accessible means of information,'*
it does not exact extraordinary diligence, but as to those facta
which by ordinary diligence could not be ascertained, it permita
a reliance on the assertions of the party, who from his opportu-
nities, has the means of knowledge. Thus at the last term, in
the case of Young t. Harris^ Adm*r,^ this court relieyed a pur-
chaser who was a stranger in the countiy, and relied on the as-
sertion of the Tender, that he had titie, when in fact, the land
had been entered in the name of an infant son of the vendor,
which could have been ascertained by application at the land
office; and on the ground, that when there was no cause for dis-
trust, such extreme diligence was not required. So in this case the-
complainant might have insisted on a survey of the land, but
we can not think he was guilty of folly, or supine negligence in
trusting to the positive declarations of one who, from his situa-
tion, might well be presumed to know the &cts he undertook to-
state, and from his relationship, it might be supposed he would
not voluntarily deceive.
It is supposed by his honor the chancellor, that it is not yei
satisfactorily established, that the cleared land, which is the sub-
ject of this controversy, is not a part of the land purchased.
The line in dispute is a range line, and so &r as the marks can
be ascertained, it must be assumed to be correct. The unmarked
part of this line, according to the proof of Colonel McElderry,
has been surveyed by the coimiy surveyor, and by the line thua
run, the cleared field except about an acre is on his land; and
until this survey is impeached, we presume it to be correct.
1. 9 Ala. 108.
June, 1841.] Wabe v. Bradford. 427
What the witness meant by saying on the oross-ezamination,
that the line thus run *' was not established as the true line/' we
do not comprehend. The survey by a competent person, such
as we must prestune the county surveyor to be, would be suffi-
cient proof of the situation of the disputed line to authorize
either a court or jury to act on it as a fact proved in the cause.
It could not, in a legal sense, " be established as the true line;"^
but by the finding of a jury in a suit to settle the boundary. It
is probable that the witness meant that the survey was not re-
corded in the office of the county comrt, as the statute requires.
But it is certain, from the proof, that a survey was made by a
competent person, and the result of that survey, until impeached,
is at least prima fade evidence. It is not however important
whether this &ct is proved or not, as it is expressly alleged in
the bill, that the cleared land, which waa the subject of the rep-
resentation made by the defendant at the time of the sale, is not
a part of the land purchased by the complainant, and this fact
is admitted by the defendant; it was, therefore, not only unnec-
essary to prove it, but it could not be disproved.
The result of our examination is, that the complainant is en-
titled to the relief he asks for, and that the chancellor erred in
dismissing the bill. The decree should have been, that the con-
tract be reednded, and that the notes and title bond be canceled.
That the complainant recover the negro woman taken in part
payment, if to be had, vdth legal interest on the sum she was
estimated at, during her detention, or her value, as estimated by
the parties. That an account be stated between the parties
charging the complainant with the value of the occupation of
the land, if any, and the defendant with the value of all valuable
and lasting improvement made there previous to his offer to re-
scind the contract.
Let the cause be remanded for further proceedings.
RisaiasiOH or Gontbaot for DBnoncNor in Quamtitt or Land: Sa^
Frind^ t. AniMiel, 13 Am. Deo. 21i^ and note 218^ where other ouee in this
■eriet are ooUeoted.
Wabe v. Bbadfobd.
[3 AXiABAMA, 676.]
DiriNDANT CAN NOT AVAIL HlMSELT OF AN OBJECTION TO THS DSOLABATIOH
In an action of trespass to try title, after he has pleaded "not guilty. "
BHiRiir's Dkxd can not bs Collaterally Impeached for any irregnlarity
in his proceedings, or in the process under which he acts. In sach a
428 Ware v. B&adfobd. [Alabama^
ft Jadgment, exeoution thereoii, ft levy, and the 8heriff*B deed are aQ tiiaft
need be shown.
Btatutb Rsquibino Shxbivf to ADVXKnm Lahimi which he ie aboat to wQ
under exeoation, thirty days before the nle, is merely direotcNry.
Ebbob to the circuit court of Talladega comity. Trespass to
try title. In the indorsement on the writ the land sought to be
recoyered is thus described: The south-east quarter of the north-
east quarter of section one in township nineteen of range four
east; and aU that part of the south half of said section one, in
said township and range, that is not included in a deed from
defendant to William Thompson, in possession of the defendant.
In the declaration the same description is giyen, except that the
north half is substituted for the south half. The jury found for
the plaintiff, and described the lands in their yerdict. The only
error in this description was the use of the word ** to'* for " by,"*
as stated in the opinion. The other &cts appear from the opin-
ions.
Peck, for the plaintiff.
SUme, contra.
OtouyrEwuTR, J. The plaintiff in error has relied, chiefly, on
two positions, as showing error in the proceeding now to be
examined. The first of these relates to the supposed yariance in
the description of the lands recoyered by the yerdict, from those
described in the declaration; and the second embraces all the
supposed errors, and irregularities in the adyertisement, and
other proceedings preyious to the execution of the deed.
The description of the lands in the declaration is yery yague
and indeterminate. It can only be made certain by reference to
a deed which is not pretended to be set out. This point was
yery fully considered in Sturdevant y. The Heirs of Murrell, 8
Port. 817, and the conclusion, then, was, that in such a case as
this, the declaration ought to describe the land in controyersy
with so much certainty and precision, as will inform the defend-
ant what he is to defend against. But it was also held in that
case, that after plea pleaded the objection to the declaration was
unayailable, unless the insufficient description was also carried
into the yerdict and judgment. This decision was made in the
terms of the statute of 1811, which proyides, that after issue
joined in an ejectment upon the title only, no exception to form
or substance shall be taken to the declaration in any court: Aik.
Dig., p. 266, sec. 46. We think it eyident, that the north half
has been inserted in the transcript by a clerical mistake, as the
June, 1841.] Wabe v. Bbadford. 429
indorsement of the writ coiresponds in this particniar with
the yeidiot, and it is entirely out of the question, from all the
eTidenoe in the case, that the controTenfj had anything to do
with the north half of the section of which the one eighth had
been before stated with certainty of description. We should
feel well warranted, therefore, in deciding this to be a clerical
error, and consequently, would omit to notice it, or consider it
ss amended.
2. But independent of this, we think it is covered by the stat-
ute. If no objection can be raised to the declaration after rer-
dict, it can not be placed in connection with any other matter to
show error, unless it be made a part of the subsequent proceed-
ings. And in the latter eyent, the objection would not be to
the declaration as such, but to the insuffidenoy of the yerdict,
if that formed the subject of complaint. Such was the case in
Sturdevant y. MurrdCa Heira, before cited, when an insufficient
description in the declaration was referred to as the de-
scription of the land in the yerdict. We think that the yari-
ance can not be now considered, and the yerdict is certain and
distinct. The only error consists in one of the lines running to
the section line to the half-mile stake, when it would haye been
more precisely accurate to haye said by the section line to the
stake.
8. All the questions raised at the trial with respect to the sup-
posed irregularities may be disposed of with a yery brief ezam-
ixiation. Lands are declared subject to the payment of aU judg-
ments and decrees by the ninth section of the act of 1812: Dig.
168. And by the same act it is declared, that the sheriff shall
make a titie to the purchaser, which shall yest aU the defend-
ant's title, etc. It is true, that by the same statute the sheriff
is required to adyertise the lands thirty days, but we consider
this to be a direction to the sheriff merely, and can not ayoid
the sale when the inquiry is as to the effect of the sheriff^s deed.
The question here presented, though novel in our own state, has
frequently received adjudication elsewhere, and it may be as-
sumed as settied law, that a sheriff's deed can not be collaterally
impeached for any irregularity in his proceedings, or in the pro-
cess under which he sells. All that is essential in such a case,
is a judgment, execution thereon, levy, and the sheriff's deed.
In the case of WhecUon v. Sexton, 4 Wheat. 503, the supreme
court of the United States expressed some astonishment, that a
similar question should be raised in that court, and say that the
purchaser depends on the judgment, the levy, and the deed.
430 Ware v. Bbadford. [Alabama.
All other questions are between the parties and the marshal.
So also, it has often been held, that the purchaser is not botmd or
affected by the irregolar acts of the officer, or of the plaintiff,
in which he did not participate: Kinney y. ScoU,^ 1 Bibb, 155;
Eearden y. Searcy's Beirs, 2 Id. 202; Brawn y. MiUer, 3 J. J.
Marsh. 435. Other cases might be adduced from other states,
but it is unnecessaiy.
The reason why these irregularities do not form the subject of
inquiry between the purchaser and the defendant in execution,
seems to be, that the latter has an adequate remedy against the
isheriff, for any injury he may haye sustained. Another reason
why he will not be permitted to attack the deed collaterally, be-
<3ause the court, where the judgment exists, can control the im-
proper action of the sheriff, and set hid proceedings aside, if
any injury has resulted from his irregularities. This was held
by this court in the case of Mobile Cotton Press and BwHiing Co.
y. Moore and Magee, 9 Port. 679, where an irregular sale was set
aside, after the execution of the sheriff^s deed. We are satisfied
that the defendant can only inquire into the yalidity of the judg-
ment in those cases, where his right has been diyested by aaher-
iff's sale, after the leyy of an execution. All other questions are
between him and the plaintiff, or between the parties and the
sheriff, or those claiming under him in a direct proceeding to
set aside the deed for irregularity in the sale, etc. When this is
not done, the titie of the purchaser can not be impeached for
any irregularity.
This leads to the conclusion, that the circuit court did not err
in the charges giyen and refused. The other questions pre-
sented by the exceptions haye not been seriously pressed, and
we do not consider ourselyes called on to examine them.
Let the judgment be affirmed.
GoLUBB, G. J. After the defendant has pleaded " not guilty,"
to an action of tveapasB, to try tities, he can not avail himself of
an objection to the declaration. But the proof of the plaintiff
must conform to his declaration — ^it is there we are to look, to
ascertain what is in issue between the parties. If the plaintiff
adduces eyidence to prove his titie to lands not described in the
declaration, such proof is clearly inadmissible, and does not
entitie him to recover. Whether in the present case, the decla-
ration as copied into the record, does not discover a clerical
error, rather than a substantial misdescription of the land, we
need not inquire.
1. JAJCiMMIft T. SMiL
June, 1841.] Little v. Beazlet. '431
Ltfile v. Bbazlbt.
[3 Alabama, TOS.)
fiMnATUBn Pbovid to bb izr a DsnKDAVT's Handwbiciho oaa not bt
giT«n in eyideiioe to the jury, to enable them to determine, by a oom-
pariaon with a dispnted signatare, whether the latter is gennine or not
Ebrob to the oounty court of Sumter county. Aesumpait on
ffc promi88oi7 note. The plea put in issue the execution of the
note, and there was a Terdiot and judgment for the defendant.
The plaintiff offered in evidence proyen spedmens of the de-
fendant's handwriting, to be by the juzy compared with the
writing and signature of the note; but the court excluded them,
and the plaintiff excepted, and brings this writ to rererae the
opinion of the county court on this point.
Seavia^ for the plaintiff in error.
JcTiea, ccnira.
GkxLDTHWAxra, J. This is one of those questions upon which
flo much has been said and written, that a review of all the cases
would be alike impracticable and uninteresting. We shall, there-
foie, content ourselyes with declaring the rule as we consider it
to exist at the present day. Comparison of handwriting by sub-
mitting different writings having no connection with the matter
in issue, is not peimitted bylaw. The present case presents the
naked question, whether signatures proyed to be in the defend-
ant's writing, can be given in evidence to the juzy, to enable
them to deteimine, by a comparison with the disputed signa-
ture, whether the latter is genuine or otherwise. In our opin-
ion, this was not competent evidence. We decline entering into
a discussion, whether there are any cases in which mere com-
parison is permitted, though it is obvious, that when more than
one paper is before the jury as evidence, a comparison will be
made, if any dispute takes place, as to the authenticity of either.
We may also add our wish to be considered as neither deciding
nor intimating an opinion on any other than the precise ques-
tion now presented.
Let the judgment be affirmed.
GoMPABiBOK or Hahdwbitino: See Mocdp v. MaweU^ 28 An. Deo. 817,
and note 323, where other oMee in this eeriee are oolJaoted.
482 Meadob v. Sobsbt. [Alabama^
MsADOB V. Sobsbt.
MdAMSm AOQVIBBO B7 TflSTATOB AITSB EzaODTIOH 01 HIS WjLL do BOt
pMS by a genml deviae therein.
Fowm nr Will to 8sll all thb Estaxi oi thb Tbbtatob does not aa-
thoriae the exeoator to aell after-aoquired landi.
Okdke of Ck>UHTr Ooubt DnuBonHo Ai>]iixi8tbato& with Will Air-
vizsD to Bell landa, aoqnirad by the testator after the exeeation of tfa#
will, iannlL
Equitabui Ebtatb m Qotxbhbd bt Samb Bulis as Pubblt Lioal Bi-
TATB, ao far aa the power to paas after-aoquiied landa by will la oon-
oemed.
PoBGHABKB AT Bxboutob'b Sali OF Labds, the equitable title to which
waa acquired by the teatator after the ezeeation of the wiU, may raecind
the contract, notwithatanding the holder of the legal title offiesa to d^
liver to him a conFeyanoe of the laoda. Snch pnrohaeer will not be eom^
peUed to leoeiye a title that may be diapnted, and the mioar heiia of the
deoeiied woold not be prednded from aaaerting their titie after they
oame of age.
Ebbob to the oourt of ohanoeiy for the third distziot of the
Bonthem division. The hill seeks a reeoisaion of a oontraot for
the purchase of lands. The complainant purchased the lands
in question at a public sale, conducted by the defendants as the
administrators with the will annexed of James Meador. The
complainant gave his note for the amount of the purchase price,
and reoeiTed a bond executed by one of the defendants, con-
ditioned to make a good and sufficient title in fee simple for the
lands. The chancellor decreed a rescission of the contract
The other facts sufficiently appear from the opinion.
Pierce^ for the plaintiff.
Janes, contra,
GoLDTHWArnc, J. 1. The principal question iuTolTed in this
case is, that which relates to the power of the defendants to sell
the lands, which were the subject of the contract sought to be
rescinded, either under the will of their testator, or under the
order of the county court. The order of the county court is
not Tery much relied on; nor can it be, for it directs the defend-
ants to seU the lands in accordance with the will; and there have
been no proceedings under any of the statutes which permit a
sale to be decreed under peculiar circumstances. We may then
dismiss the order of court from consideration; for it is yeiy
clear, that the contract is not warranted by that alone. At first
we were inclined to think it would be necessary to look into the
June, 1841.] Meadob v. Sobsby. 433
to asoertain when fhe title of the deceased If eador
oommenoed; but on a moie particular ezaminationy we find a
rery distinct admission, that the title bond from Eirkpatrick
was executed on the thirtieth of January, 1835; and the subse-
quent declaration, that the defendants can not state when their
testator obtained the possession of the land, whether before or
after the date of his will, is wholly unimportant, for the reason
that the equitable title is not shown to have existed at any time
anterior to the date of the bond. Our statute of wills is not
Tery diflwiTnilar from those in force in England, and is in these
words: Eyery person of the age of twenty-one years, of sound
mind, lawfully seised of any lands, tenements, or hereditaments,
within this state, in his own right in fee simple, or for the life
or lives of any other person or persons, shall have power to
giye, devise, and dispose of the same by last will and testament
in writing; provided, etc.: Aik. Dig., p. 448, sec. 1.
It is the settled law of England, that after-acquired lands axe
unaffected by a will: Antkin v. Bakerham,^ Bep. temp. Holt,
760. The same doctrine has been held and frequently acted on
in this country: McKinnan v. Thompson, 8 Johns. Oh. 807;
Livingsion v. Newkirk, Id. 812. In Virginia, where the statute
authorizes the disposition by will of the lands which the testator
has, or, at the time of his death, shall have, it has been held,
that the intention of the testator to make his will apply to after-
acquired lands, should appear in the will: Edmerdy v. ,'
8 Call, 289. And this construction of the statute was con-
firmed by the supreme court of the United States in the case of
Smith V. EdringUm, 8 Oranch, 67. The same rule seems to pre-
vail in Kentucky: HaJdoway v. Btuikj 4 litt. 293. We axe
not aware of any decisions elsewhere to the contrazy. It is
scarcely necessary to add, that it is not essential that the testator
should be seized of a legal estate at the time when the will is
made. If he has an equitable estate merely, it is governed
by precisely the same rules as if it was purely legal: Langford
V. PiU, 2 P. Wms. 629; Potter v. Pfdter, 1 Ves. 437. If we
now ascertain the facts connected with the case, it will be seen
that the will was made in 1833; and the lands which were sold
under the supposed power contained in the will, were not
acquired by the testator until 1835. At the latter period, he
purchased them from Kirkpatrick, who executed a bond to
make him titles. The testator thus became seised of an equi-
1. Jrttir ▼. Bodumkam, a. JUm ▼. Hmnitttt^
Am. Dm. Voii. XXXYI— 98
434 M£Ai)OB V, SoBSBF. [Alabama^
table eatate of inheritance, which, at his death, deacended to
and vested in his heirs at law.
2. But it is urged that, although the equitable title descended,
yet the will contains a power to sell all the estate of the testator;
and that this power may attach to the lands, although the lands
themselves may not pass by the will. This position has fre-
quently been overruled in England; and we are not aware that
the correctness of the rule there established has ever been
questioned: Langfordr. Eyre^ 1 P. Wms. 72;* Wag^iaffy. Wag-
gtaff, 2 Id. 268; Jones v. GUnigh, 2 Yes. 366.
3. The subsequent attempt to invest the complainant with
the legal title, can have no effect to make him chaigeable on the
contract, because it is evident that he would be considered as a
purchaser, with notice of the equitable title vested in the heirs
at law of the deceased Meador. Such of them as are minors,
could contest the complainant's right to the land after they be-
came of age; and consequently it would be unjust to compel
him to receive a title which may be disputed.
Our conclusion then is this: that as the lands were acquired by
the testator in 1835, the will executed in 1883 was inoperative,
either to pass the lands, or to subject them to the operation of a
power; that the title of the testator to these lands descended to his
heirs at law, in whom it yet remains; and that the sale by the de-
fendants, although made in the utmost good faith, can not have
the effect to pass any title to the complainant, and that he is not
required to receive that which is tendered to him on payment of
his note. We are satiBfied that the decree of the chancellor, so
far as the merits of the case are concerned, is free from error.
It is imimportant to consider the effect of the exception
to the depositions, because, in our view, they are laid aside en-
tirely, inasmuch as the whole equity of the bill is admitted by
the answers. In relation to the point, that the complainant had
an ample and complete defense at law, we think the circum-
stance that the bond to make titles, which was executed by one
of the defendants, withdraws this case from the influence of the
decision made in WUey v. WTiUe, 2 Stew. & P. 355;' and we are
not, therefore, called on to decide, whether the circumstances
of this case did not of themselves require the complainant to go
into chancery to obtain a rescission of the contract.
lict the decree of the chancellor be affirmed.
1. Longford r. PiU, 2 P. Wms. e39. 9. 8 BItw. ft P.8SC.
Jtme, 1841.] Shacklefobd v. Ward. 435
Shagklbfobd v. Wabd.
[8 ATiAWaita, ST.]
KoncB TO A Stakkholdsr by 0ns of the Pabtixs to a Waoeb, to re-
tain the money deposited in his hands, arrests it, and he may not after-
wards pay over the money to either, whatever the determination of the
•vent upon which depends the wnger.
Spboial Demand on a Stakbholdeb is not Neobssart, before instituting
■nit to reooyerthe money deposited, if he has informed the depositor that
he has paid over the money, which it is sought to. recover, to the other
party to the wager, in opposition to instructions previously given.
Absumpsit. Id 1839 plaintifiF in error wagered with one Tank-
«nlej the sum of five hundred and fifty dollars, upon the re-
sult of the pending senatorial election. In the election that
afterwards took place, the candidate against whom plaintiff bet,
was returned. The validity of the election was, however, ques-
tioned, and the election was subsequently declared void and in-
sufficient to entitle the candidate returned to a seat in the sen-
ate. Plaintiff, having knowledge of the questions nuule as to
the validity of the election, informed defendant in error, who was
the stakeholder of the money wagered by Tankersley and himself,
thereof, and requested him not to pay over the money. Defend-
ant, in compliance with this instruction, did retain the money,
but afterwards, upon being promised indemnity by Tankersley,
paid over the money, and informed plaintiff of his action.
Plaintiff contended that this action on the part of defendant
relieved him from the necessity of a special demand before in-
stituting suit. The court, however, held otherwise, and in-
structed the jury that a demand was necessary.
Peck, for the plaintiff in error.
Jones, contra.
OoLOTHWAirE, J. The plaintiff in (tds case, after the supposed
determination of the wager, gave notice to the stakeholder to
retain the money in his hands, and not to pay it over to the sup-
posed winner. This arrested the money in his hands, and it
could at any time after this have been reclaimed by the plaintiff,
and the defendant would not have been authorized to withhold
it, even if the wager liad been decided against the former. This
was settled in the case of Wood v. Duncan, 9 Port. 227. It
appears, however, that the event on which the wager was to be
determined, in point of law, never took place, for the bill of
exceptions shows that the election was declared to be void, and
a new one ordered. The consequence of this deciiion was, to
436 Cook v. Field. [Alal>amfl^
remit the parties to this wager, to all their original rights to the
monejB severally deposited by them. If the money had then
remained with the stakeholder, a special demand would have
been necessary to entitle the plaintiff to recover it.
2. No special demand, however, was necessary under the cir-
cumstances of this case. It appears that doubts had arisen with
respect to the validity of the election, as declared in the first
instance. The plaintiff informed the stakeholder that the elec-
tion would be contested, and notified hitn not to pay the wager
to the then supposed winner. Afterwards, and before the decision
of the proper authority on the contested election, the stake-
holder pays over the money to the supposed winner, and informs
the plaintiff that he had done so, and that the then supposed
winner would indemnify him for aU losses. Certainly, after
this, a demand was entirely unnecessary to enable the plaintiff
to maintain his action, whether he elected to consider the wager
as illegal and at an end; or whether he awaited the final de-
cision, which in effect, decided that the wager was neither lost nor
won. The latter course was pursued, and this action was com-
menced in Februaxy, 1840, the decision having been made a few
days previously. The defendant, by his own act, in paying over
the money, must be considered as waiving any right to a q[>ecial
demand. In the case of Bathbun v. IngaUa, 7 Wend. 820, it is
said that an intention formed by an agent to retain money, and
communicated to others, but not to the plaintiff, would not dis-
pense with a demand. But it is admitted in that case, if the
intention had been communicated to the plaintiff, it would have
waived the demand. The county court erred in instructing
the jury that the plaintiff could not recover without proof of a
■pedal demand of the money.
Let the judgment be reversed, and the cause remanded.
8m J^fre^ V. FiekUn, pod.
Cook v. Field.
[B AXiABAMA, SS.]
OnrsBAL lasns nr Assumpsit will Lbt nr Pbooi of a Pbbvioub Gab-
HXBHiuirT by which the debt now saed for wis recovered from de-
londaiit.
Pabol EvmxvoB m Admsssiblb to Identitt thb Debt recovered by Jiidg*
DMiat agaanet the defendant aa gamiahee with that aaed apon, if the
identifioation does not appear npon the face of the record.
June, 1841.] Cqok v. Field. 437
JuDomiTT AGAINST A Gabnishbs 18 NOT A Dktknse when saed by his oxig-
inal creditor, nnleas the judgment has been satisfied.
Patmxnt bt Omb or Sevkbal Joint Debtobs operates in fayor of alL
AwuMPttiT. The present plaintiff in error was the admini»-
tatar of the original plaintiff*, F. C. Ellis. The action was in-
Btitated by EUie as assignee of a note executed to S. C. Fisher
Yfj defendants in error, and one Henderson, as to whom the suit
was discontinued* Two pleas were pleaded: One, the general
issue; the other, a special plea, relying upon a recoyery against
defendant Field, of this debt, by judgment of the circuit court
of the United States, wherein he had been summoned as gar-
niohee, by certain judgment creditors of S. G. Fisher, the
assignor of plaintiff's intestate. To this plea the plaintiffs put
in a rejoinder of nul tiel record. The case was tried before a^
jury. Parol eyidence was introduced by defendants to show
that the debt upon which judgment was obtained against Field
as garnishee was the same as that now sued upon. To this eyi-
dence plaintiff interposed an objection, which was oyerruled.
The jury was instructed that they must find for defendants, if
they were satisfied that the judgment against Field, as garnishee,
was for the debt now sued upon. The defendants had yerdict.
The other facts of the case appear from the opinion. Plaintiff
assigned for error the failure of the court to dispose of the issue
of niU tid record, and also other matters which appear from the
opinion.
HalCf for the plaintiff in error.
B. F, Porter, contra.
Obkosi), J. A recoyery of the debt sued for by a preyious
garnishment, may be either pleaded specially, or giyen in eyi-
dence under the general issue, in an action of assumpsit; it is
unnecessary, therefore, to consider in this case whether the ob-
jection, that the court, and not the jury, should haye tried the
issue under the plea of nvl lid record, is well taken, as the mat-
ter was submitteil to the jury tmder the plea of non asaumpsU.
The defendants haying produced the record of the judgment
against Field, one of the defendants, who had been summoned
as a garnishee, at the instance of a judgment creditor of the
assignor of the plaintiff's intestate, and proyed that it was for
the same debt now sued on, the court charged the jury that if
they were satisfied from the eyidence that there was a judgment
against the defendant Field, for the debt sued on, they must
find a verdict for the defendants; to which the plaintiff ex-
438 Ck>OE V. Field. [Alabama
oepted, and had preTioualy objected to the eTidence going to
the juiy. It becomes, therefore, necessary to consider whether
the record offered, and the accompanying parol evidence, were^
sufficient to authorize a recoveiy for the defendants. The judg-
ment against the garnishee was rendered nm, for failing to ap*
pear in obedience to the process; and afterwards, upon the^
return of a scire facias, made final: it does not therefore appear
from the record, that the judgment against the garnishee was>
for the same debt sought to be recovered in this action. Theie-
can be no doubt that it was competent for the defendants, by
parol proof, to identify the debt recovered by the judgment
against the garnishee, and show that it was founded on the
same indebtedness attemptied to be enforced in this suit.
It does not appear from the record of the garnishment, thai
an execution had issued upon the judgment against the gar-
nishee, or that there was any proof to that effidct, or that the
judgment was satisfied. That the judgment against the gar-
nishee unexecuted, will not protect the garnishee when sued
by his creditor for the same debt, is dear, both on princi-
ple and authority; for if an unexecuted judgment against the
garnishee would be a bar to a suit against him by the original
creditor, it might happen that he would not be comi>elled to pay
the debt at all, as the judgment of the attaching creditor might
never be enforced. In the case of Bdberthon and Wife y.Nbrroy^
1 Dyer, 83, a, the custom of London was certified by the re-
corder to be '' that if a man sue another before the mayor, etc.,
and a third person is indebted to the plaintiff, inasmuch as the
suit of the plaintiff is for, and by the custom of the law of at-
tachment, the third person is condenmed, and judgment given
against him; notwithstanding the judgment, if no execution be
sued out against the third person, the plaintiff may resort back
to have judgment and execution against the defendant who i»
his principal debtor, and he may also sue the third person for
his debt, notwithstanding the judgment unexecuted," etc. In
TurhUVB case, 1 Saund. 67, the custom was certified by the re-
corder, who describes the manner of summoning one as gar-
nishee, etc., and concludes by saying: ** And judgment shall be,,
that the plaintiff shall have judgment against him (the gar-
nishee), and that he shall be quit against the other (the original
creditor) after execution sued out by the plaintiff." To the same
effect, and nearly in the same language, the law is laid down in
2 Bac. Abr. 262, tit. Customs of London.
From these authorities, it appears very dear, that the plaint*
Jime, 1841.] Cook v. Field. 439
in attachment^ by the custom of London, may, after obtain-
ing judgment against the garnishee, omit to sue out execution,
and proceed against the original debtor, in which CTcnt the de-
fendant in attachment may proceed against the garnishee for his
debt, and the unexecuted judgment will be no bar to his recov-
ery. The suing out execution against the garnishee is, in
effect, an election to take him for the debt of the original debtor,
and operates an extinguishment of the debt. The custom of
London is the original of our statutory proceedings by attach-
ment, with some slight modifications — one of which is, the plaint-
ijff in attachment can not have judgment against the garnishee
until he obtains judgment against the defendant in attachment;
whereas, by the custom of London, the plaintiff, by making oath
to his debt, and giving pledges to return the money in a year
and a day, if the defendant disproved the debt, obtuned judg-
ment against the garnishee. As, therefore, by our attachment
laid, the plaintiff obtains a judgment against the defendant in at-
tachment, as well as against the garnishee, on both of which he
may have execution, it will follow that the mere suing out an ex-
ecution against the garnishee, will not, in this state, as in Eng-
land, by the custom of London, be evidence of an election to
substitute the garnishee as his debtor, instead of the defendant
in attachment; and it will necessarily follow, that nothing but a
satisfaction of the judgment against the garnishee, will absolve
him from liability when sued for the debt by the original cred-
itor. The court, therefore, erred, in stating that the rendition
of judgment alone would have that effect.
The defense set up that the debt was paid by the garnishment
of one of the defendants, would, if properly made out, be a de-
fense to all. The statute, which declares that all joint contracts
shall be considered as joint and several, does not affect this ques-
tion. Although, by virtue of that statute, each of the makers
of a note or bond maybe sued separately, and several judgments
obtained, there can be but one satisfaction, so a payment by one
would be a payment for all, and the defense here set up, is noth-
ing less than a compulsoiy payment of the debt by one of the
defendants, which must inure to the benefit of all.
Let the judgment be reversed, and the cause remanded.
EvioxNCB Extrinsic the Recosd inadmiBsible to show what nuttten in-
cluded within the issues were passed npon in a former action: See Oardnet
w, Buckbee, 15 Am. Deo. 250.
Failure to Plsad Estoffxl where opportunity is offiured, efifoot of: Se^
Wood V. Jaekaon^ 22 Am. Dec G03» and note.
440 Hnr V. Llcet. [Alabama^
Hrrr v. Laoet.
Debt oir wbub Sun has bbbn Iitstituted kat bb Amrn^tmwn la ^ pvo>
oaedlag pmeonted in the sune ooort
OoeiB, WBBU TBEKE 18 A PLSA PuiS DaBBBDT Ck>BTIirUAllOI, whioh sets
forth a tnie and valid defenae, are to be adjudged to plaintiff to the time
of plea pleaded.
Debt. A plea to the action ptiia darrein canHtmanoe^ set f orQi
that subsequently to the institution of the action, defendant
was garnished in an action instituted by one Howe against plaint-
iff, and that such proceedings were had in that action that judg-
ment was finally recovered against plaintiff, and also against
defendant as garnishee, for the amount of the debt now sued
upon, and that defendant had paid and satisfied the judgment
against himself. Upon demurrer to the plea, the court gave
judgment for defendant and against plaintiff for costs. The
plaintiff prosecuted a writ of error.
Feck and Clarke for the plaintiff in error.
Moody, conira,
OBMOin>, J. We can not perceiTe any reason why an attach-
ment will not be sustained, merely because the defendant in the
attachment has commenced a suit against his debtor previous to
the suing out of the attachment and the summons of his debtor
as garnishee. Our statute authorizes an attachment to be levied
on a debt due the defendant in attachment, and by a garnish-
ment against such debtor, subjects the debt in his hands to the
payment of the claim prosecuted in the attachment. It cer-
. tainly is not the less a debt, because a suit has been commenced
upon it, and therefore would seem to be within the very letter
of the statute.
The case cited from 18 Peters is not like this case. There,
the suit against the debtor, who was afterwards garnished, was
commenced in a court of the United States, previous to the
commencement of the suit by attachment in one of the state
courts. This appears to have been a principal element of the
decision of the court. It is stated in the judgment of the court
that, ' ' The jurisdiction of the district court of the United States,
and the right of the plaintiff to prosecute his suit in that court,
having attached, that right could not be arrested, or taken away
by any proceedings in another court. This would produce a
collision in the jurisdiction of courts, that would eoctremely em-
barrass the administrotion of justice." Now, here the suit
Jane, 1841.] Mator of Mobile v. Tuillb. 441
brought by the defendant in the attachment against his debtor,
4uid the attachment against him, are both prosecuted in the same
court; no conflict of jurisdiction, therefore, can hj possibilitj
4urise, and no reason can, in our opinion, exist, which would jus-
tify the court in refusing to give effect to the statute. The pre-
cise point here ndsed, was determined hy the supreme court of
Pennsylvania, in MoGarty t. Emliriy 2 Yeates, 190, in which it
^as held that a debt in suit might be attached in the hands of
the defendants in the suit; McKean, G. J., saying that the Eng-
lish decisions in which the contrary doctrine was held, proceeded
on the ground that the inferior courts, in which alone this pro-
ceeding could commence by the custom of London, could not
interfere with a matter in suit in the king's superior courts. In
Zwrcher t. Magee^ decided at the last term, we held that money
collected on a judgment, could not be attached by process of
garnishment, in the hands of the sheriff, on the ground that
it was in the custody of the law and did not become the prop-
erty of the judgment creditor until it was paid over to him. It
is obvious that decision does not affect the present question;
and we are of opinion that no obstacle exists to giving effect to
the plain direction of the statute.
But, as the plaintiff had a right of action when he commenced
his suit, and which is admitted by the plea, ^Mi» darrein contin-
uance, no judgment could be rendered against him for costs.
The judgment of the court below must therefore, so &r as it
relates to the costs, be reversed, and here rendered for the
plaintiff in error, up to the time of plea pleaded.
GoiJ>THWAiTB, J. I dissent from so much of the opinion just
pronounced, as reverses the judgment, because costs were given
io the defendant. I think the plaintiff was entitled to costs,
only in the event of confessing the plea; here, however, he con-
tests the defense, and I think all the precedents are, that he is
chargeable with the costs.
Mayob eio. of Mobile v. Yxjille.
[8 Alabama, 137.]
TiSftTHTiATUBK MAY RSOULATK THE MoDE AND MaNNSK OF EnJOTINO
P&OPSBTr and regulate callings, where the public interests are affected,
hy general laws operating alike on all citizens.
ChainrANGB or a Municipal Cobpokation is not Void as in restraint of
trade, if it bat relate to the regulation of the trade, and the regnlatioii
1.9 Ala. 268.
442 Matob of Mobile v. Yuillk. [Alabama^
18 for the good of the inhabitoiits of the dty, or for the advantage of the
trade and improvement of the oommodity aold.
Idsm.— The Lioislatubb mat Conbtitutionallt Ooimat upoir a Muhioi*
PAL OoBPOBATiOK the powoT of regulating the assue of bread.
LlOULASURI MAT GONTEB TTPOK A HUHIOIPAL GORPOBATIOM the powet
to paas any by-law or ordinance which ia not nnreaaonable or oppoaed ta
the general law of the state.
Powmt TO Pass a Bt-Law Cabbiss as ah iNOiDBirT the power to enforoe-
iti obeervance by some reasonable penalty; what is a reasonable penalty
is to be determined by a consideration of the offense prohibited.
PWUHIART PkNALTT V0& THE VIOLATION OT A MUHIOIPAL OrDOTAKOB
must be for a sum certain; it will not remove the objection that the ocdi-
nance fixes a sum beyond which the fine can not extend.
Ebbob to the county oourt of Mobile. Defendant was oon*
Ticted in the recorder's court of Mobile of violating the ordi*
nance regulating the assize of bread, and was fined twenty dollars.
The ordinance in question provided that no person should en-
gage in the business of a baker in the city of Mobile without a
license, to obtain which a payment of twenty dollars was re-
quiredy as also a payment of one dollar to the clerk as his fee
for issuing the same. An infraction of this provision was made
punishable by fine not exceeding fifty dollars. The ordinance
further provided that aU bread baked should be of good and
wholesome fiour, and that its weight and price should be in con-
formity with a proclamation, to be issued from time to time by
the mayor, regulating these matters by a reference to the price
of fiour at the time of the proclamation. If bread was, upon in-
spection by the police, found deficient in either quality or quan-
tity, it was to be seized, condemned to the poor, and the offender
was to be punished by fine not exceeding fifty dollars. Defend-
ant appealed from the judgment in the recorder's court to tho
county court; that court reversed the judgment; whereupon the
city prosecuted a writ of error to this court.
Campbell, for the plaintiff in error.
B. F. Porter, contra,
Obmond, J. The question presented on the record is, whether
the corporation of the city of Mobile had authority to pass the
ordinance regulating the assize of bread. The power to make
by-laws is incident to every corporation, and it is therefore un-
necessary to confer the power by express grant in the charter. If
the validity of a by-law is questioned, the test is whether it is
reasonable and consonant to the general law of the state. By
an act of the legislature, passed seventeenth of December, 1819,
the inhabitants of the city of Mobile were incorporated. The
June, 1841.] Matob of Mobile v. Yuille. 443
B6Tenth section confers the power to make all necessaiy police
regulations, and to pass all by-laws necessary for the goTem-
ment of the city; ** to license bakers and regulate the weight
and price of breads and prohibit the baking for sale except by
those licensed:" Toulm. Dig. 787. The question then is,
whether the legislature had power to authorize the corporation
to make such a by-law, and whether the power so conferred has
been pursued.
It is strenuously contended by the counsel for the defendant
in error, that no such power exists, because, as he contends, it
would interfere with the right of the citizen to pursue his law-
ful tmde or calling in the mode his judgment might dictate.
Doubtless, under the form of govemment, which exists in this
and the other states of this union, the enjoyment of all the rights
of property, and the utmost freedom of action which may con-
sist with the public welfare, is guaranteed to erery man, and no
restraint can be lawfully imposed by the legislature in relation
thereto, which the paramount claims of the*^ community do not
demand, or which does not operate alike on all. Free govern-
ment does not imply unrestrained liberty on the part of the cit-
izen, but the privil^e of being goTemed by laws, which oper-
ate alike on all. It is not, therefore, to be supposed, that in
any country, however free, individual action can not b^ re-
strained, or the mode, or manner of enjoying property, regu-
lated. The decision of this court, in Matter of J. L, Dorsey^ 7
Port. 295, has been referred to, as sustaining the position that
the act is unconstitutional. But the ground upon which the law
in that case was held to be void, was not that the legislature could
not regulate the matter and provide for the licensing attorneys at
law, but because the act was partial, and did not operate alike
on all the citizens of the state. Thus, Judge G-oldthwaite holds
this language: ** As the constitution is silent with respect to the
pursuits of business or pleasure, the general assembly has the
power to prescribe any qualification not inconsistent with the
rule that equality of right must be preserved. In other words,
that any citizen may lawfully do what is permitted to any other.
It rests with the legislative power, to prescribe the conditions
on which any avocation or calling shall be pursued, so that the
door is closed to none; and there seems to be no other limit to
their discretion, than the one which arises from the first section
of the biU of rights referred to:" Id. 361, 362.
There is no motive, however, for this interference on the part
of the legislature with the lawful actions of individuals or the
444 Mayor of Mobile v. Yuilul [Alabama^
mode in which private property shall be enjoyed, unless such
•calling affects the public interest, or private property is em-
ployed in amanner which directly affects the body of thepeople«
Upon this principle, in this state, tavern-keepers are licensed
and required to enter into bond, with surety, that they will pro-
vide suitable food and lodging for their guests, and stabling and
provender for their horses; and the county court is required, at
least once a year to settle the rates of innkeepers. Upon the
«ame principle, is founded the control which the legislature has
always exercised in the establishment and regulation of mills,
ferries, bridges, turnpike roads, and other kindred subjects.
€o, also, all quarantine and other sanitary regulations, all laws
requiring houses to be built in cities of a certain material, to
guard against fire, depend for their validity on the same princi-
ple.
It has been strongly urged that this by-law is in restraint of
trade, and therefore void by the common law. A contract of
an individual, not to exercise a particular trade or calling in the
kingdom, is void, but if on sufficient consideration, is good, if
confined to a particular place; so a by-law restraining trade gen-
erally, is bad, but if made for the regulation of trade in a par-
ticular place, is good. For proof of which, a number of in-
stances are given by Chief Baron Comyn, in his digest, 2d vol.,
286, by-law B. 8, and among them is, " that such a baker bake
white bread only, such an one brown." The rule and the rea-
son of it, are laid down with great perspicuity in the great case
of MUchd V. BeynoldSy 2 P. Wms. 181,^ by Lord Macclesfield.
<< All by-laws made to cramp trade in general, are void. By-
laws made to restrain trade, in order to the better government
of it, are good in some cases, viz. : if they are for the benefit of the
place, and to avoid public inconveniences, nuisances, etc., or for
the advantage of the trade and improvement of the commodity."
The learned judge afterwards shows that this modified restraint
is consistent with Magna Charta. See also the following cases
in which such regulations have been held good: Fugakerly v.
WeUshm* 1 Stra. 463; King v. The Chamberlain of London, 3
Burr. 1322; Wannel v. Chamberlain of the CUy of London, 1 Stra.
€75; Pierce v. Bartrum, Cowp. 269; The Master Wardens etc.
V. FeU, Willes, 384. The sum of these authorities is that
though there can be no general restraint of trade, yet to a cer-
tain extent it may be regulated, and by consequence to some ex-
tent restrained in a particular place, if such restraint be for the
1. 1 p. Wms. in. 9. FaM9her§^ T. WUttkbni
Jiine, 1841.] Matob of Mobile v. Yttille. 445
good of the inhabitants, as when for the preyention of nuisances,
oertain trades are confined to the suburbs of a city, or where ii
is for the advantage of the trade and improvement of the com*
modify.
The regulation in this case seems to combine all these qual-
ities. Where a great nimiber of persons are collected together
in a town or city, a regular supply of wholesome bread is a
matter of the utmost importance; and whatever doubts may
have been thrown over the question by the theories of political
economists, it would seem that experience has shown that this
great end is better secured by licensing a sufficient number of
bakers and by an assize of bread, than by leaving it to the*
voluntaiy acts of individuals. By this means a constant sup-
ply is obtained without that fluctuation in quantity which would
be the inevitable result of throwing the trade entirely open, and
the consequent rise in price, when from accident or design a
sufficient supply yraa not produced. The interest of the city in
always having an abundant supply will be a sufficient guaranty
against any abuse of the right to regulate the weight, the con-
sequence of which would be to drive the baker from the trade.
The case of Dunham and Daniels v. The VUlage o/Bochestery &
Cow. 462, vms considered by the counsel for the defendant in
error as conclusive in his favor. The by-law of the town of
Rochester, which was called in question in that case, assessed a
tax of from five to thirty dollars for a license from all grocers,
hucksters, etc., and imposed a penalty for selling vdthout such
license. The action yraa for the penalty for selling without
license. The charter of the town authorized the trustees, etc.,
'* To make all such prudential by-lavrs, rules, and regulations
as they from time to time may deem meet and proper, and par-
ticularly such as are- relative to the public market, etc., relative
to taverns, gin-shops, and huckster-shops in said village." The
court held this by-law to be bad on the ground that the author-
ity of the corporation was not to pass what laws they pleased,
but such as were prudential. The co\irt say: ''Admitting the
power to limit or prohibit altogether, the erection of hudcster
or gin-shops, if required by prudence for the good of the corpo-
ration, it is not shown how they could be an evil if conducted
tmder proper regulations, nor can we see judicially, that any
restriction was necessary. For all the purposes of jurisdiction,
corporations are like the inferior courts, and must show the
power given them in every case." It appears from these ex-
tracts, very conclusively, that the decision of the court pro-
446 Matob of Mobile v. Yuille. [Alabama^
needed on the ground, that the by-law in question was void
from an excess of authority — ^that it did not judiciallj appear
that it was a prudential regulation. But in this case, the power
is expressly given by the statute to do the act complained of,
and in the case just cited from 5 Cowen, it appears that the
trustees of the town of Rochester, were authorized by the act of
incorporation, to pass by-laws regulating the assize of bread;
and are prohibited from fixing the price of any commodity or
articles of provision, except ilie article of bread, that may be
offered for sale.
The legislature having full power to pass such laws as are
deemed necessary for the public good, their acts can not be im-
peached on the ground, that they are unwise, or not in accord-
ance with just and enlightened views of polit^v^ economy, as
understood at the present day. The laws against usury, and quax^
antine, and other sanitazy regulations, are by many considered as
most vexatious and improper restraints on trade and commerce,
but so long as they remain in force, must be enforced by courts
of justice; arguments against their policy must be addressed to
the legislative department of the government. If, however,
euch an inquiry were open, it would be vezy difficult to satisfy
this court, that the assize of bread in a populous ciiy or town,
is an unwise regulation. The practice has prevailed too long,
and has been too generally, not to say, almost universally ac-
quiesced in, and continued, to permit us to doubt, that some
regulation on this interesting subject is necessaiy and proper.
It is also insisted, that admitting the legislature to possess the
power, it can not be delegated to a corporation. We have seen
that the mere creation of a corporation, carries with it the
power to make all by-laws, which are reasonable and not con-
trary to the general law of the state; it is also true, that an ex-
press grant to pass an unreasonable or imlawful by-law, is void;
it follows, therefore, most conclusively, that the legislature may
grant expressly the power to do that which the corporation
might do without express grant; the test of the by-law being
the same in either case: Willcock on Corp. 96. As, however, by-
laws are the rules of action which the inhabitants of a place
prescribe for their own government, there is a peculiar pro-
priety in permitting them to be the judges of what rules are
necessary and proper, and such is the constant, the invariable
practice.
Finally, it is urged, that there is no power given by the act of
incorporation, to inflict a penaliy for the violation of the by-
June, 1841.] Matob of Mobile u Yxtille. 447
law. The right io make IawB» neoessarilj implies the power of
•enforciiig the law by some sanction, otherwise the power would
be nugatory. The supreme legislative power of a state, are the
-exdnsiTe judges of the penal sanction of a law, but the penalty
for the violation of a by-law, must, like the by-law itself, be
reasonable. The penalty in this ordinance under consideration,
is not more than fifty dollars, to be recoTered before the mayor,
of any one of the aldermen; one half to the use of the city, and
the other to the use of the person procuring the conviction.
What would be a reasonable penalty, can not, from the nature
of the thing, admit of a general rule, applicable to all cases, but
xdust, in every case, be determined by the nature of the offense
intended to be prohibited. Some general rules, however, may
be laid down as applicable to all cases. The penalty must be a
sum certain, and can not be left to the arbitrary assessment of the
•corporation court, to be determined according to the nature of
the offense. It is also Baid, that although the utmost limit of
the penalty be fixed beyond which the fine can not extend, that
it does remove the objection. The reason assigned is, that it
permits the corporation to be a judge in its own cause. Nor, it
is said, can the penalty of a by-law extend to forfeiture of goods,
unless such power be expressly given by the charter: See the
oases collected by Angell & Ames on Corporations, 200; and
by Willcock on Municipal Corporations, 152, sec. 308. The by-
law in this case being not for a sum certain, but for such sum
not exceeding fifty dollars, as the corporation court might think
proper to impose as a fine, can not be supported. We also incline
to doubt tiie propriety of that portion of the by-law which for-
feits such bread as is not of the weight required by the ordi-
nance, as also that portion which requires twenty dollars to be
jpoid by the baker as a license, unless the latter can be supported
under the taxing power of the corporation. Though doubtiess
•the corporation could require a fee for the issuance and regis-
tration of the license.
From this view of the case, it follows that the county court did
not err in its judgment reversing the judgment of the recorder,
«id it is therefore a£9rmed.
See SoUnmm t. Mofor, 34 Am. Deo. 625, and note^
CASES
IN THK
SUPREME COURT
OF
ARKANSAS.
Doe ex dem. Peillips' Hjsibs v. Pobtbr.
[8 Abkavias, 18.]
Whxrb thb DsaaBiFTioNS of a Oonybtancs GoNnjOT, thftt which has Ikt*
greater oertainty moat prevaiL
Idkm. — QuASTTEY GiTBS WAY TO BouKDABiES in oase of oooflict.
Idem. — A Pabtioulab Dxsobiftion will Contbol a general deeoription el*
the same tract.
BaciTAL of One Deed nr Another binds the partiea and thoae claiming
under them by estoppel. Thus if a conveyance purport to be of land
conveyed by a prior deed to which reference is made, the grantees can
not contend that more passed than was indnded in the recited deed.
EjEOTHEifr. The conteetwas between the heirs of PhilUps-
and purchasers from Kendrick and Fisher, Phillips' immediate
grantees. The case was submitted upon an agreed statement of
facts, wherefrom it appeared that the tract in controTersy em-
braced three and eighty-two one hundredths acres in surface-
area of a tract of six hundred and forty acres, patented by the
general government to William Russell in 1824. About two-
hundred and seventy-five acres of this tract was laid off by Bus-
sell for the site of the town of Helena. Immediately in front of
said town site and bordering on the Mississippi river, but not
included in the town, were three fractions of land, which may
be referred to as fractions A, B, and C. Fraction C was that in
controversy. Various conveyances were made by Bussell to
Phillips at different times, of his interest in portions of the
tract originally patented to him. In particular by deed of July
13, 1825, acknowledged August 13, of the same year, Bussell
conveyed to Phillips the western three hundred and forty acres-
July, 1840.] Doe v. Pobter. 449
of the tract, a large number of town lots, and fraction A, con-
taining eighteen acres; and by deed of Angost 1, 1825, acknowl-
edged Augost 18, 1825, be conveyed to Phillips, besides certain
town lots, fraction C, that now in controversy. The acreage
of fractions A, B, and C, together with the three hundred and
f oriy acres which had been conveyed to Phillips as above men-
tioned, amounted to three hundred and ^iziy-six and eighiy-two
one hundredth acres. October 1, 1830, the ownership of all
these parcels of land was centered in Phillips. Upon that day
he executed to Eendrick and Fisher a deed, the nature of which
appears from the opinion. The defendants claimed under Een-
drick and Phillips, and contended that under a proper con-
struction of the deed last mentioned, reference being had to the
surrounding circumstances, fraction O would be covered by
it. The jury were instructed in accordance with this view of the
law and found for defendants; whereupon plaintifb moved for a
new trial, and took this ajypeal from an order denyini; their mo-
tion.
I^fxgpnaU and Ooche, for the plaintiffs in error.
PUXy conira.
By Court, Laot, J. The question now submitted for adjudi-
cation lies within a very narrow compass. It is, nevertheless, a
question of considerable magnitude and interest, and one of no
ordinary difficulty. Here we have given to the whole subject,
and to every part of it, a most patient and fuU investigation.
Both parties claim titie to the land in controversy, under
Sylvanus Phillips; the lessors of the plaintiff, as his legal heira
and representatives; the defendant in the action, as a ptirchaser,
for a valuable consideration, from his immediate grantees.
The law was adjudged below in favor of the appellee upon an
agreed case. That judgment is now brought before the court
by appeal for revision and correction.
The whole case turns upon the construction of the deed from
Sylvanus Phillips to Austin Eendrick and Arnold Fisher, bear-
ing date the first day of October, 1830; and the question now to
be decided is, what number of acres does that deed convey ? The
deed embraces a great variety of clauses, conveying different
tracts of land, and it uses the same terms of description and
limitation in regard to them all. It first states the number of
acres contained in each tract, and it afterwards refers to and
recites the particular patent and grant under which Phillips de-
rived titie. The words of the deed are: ** The party of the first
Aic Dso. Vox*. XXX VI— M
450 Doe v. Pobter. [Arkansas.
part have granted, bargained, and sold, and by these presents
do grant, bargain, and sell unto the party of the second part,
and to their heirs and assigns foreyer, the following described
tract, containing three hundred and sixtynsix acres of land, be-
ing part of a six hundred and f oriy acre tract originaUj owned
by Patrick Cassidj, and confirmed to William Russell under
P(itrick Cassidj, and patented by the president of the United
States to William Russell and his heirs on the tweniy-sixth day
of March, 1824, which said tract of land was conveyed by
William Russell to Sylvanus Phillips by deed bearing date the
thirteenth day of July, 1825, situate in the couniy of Phillips
and territory of Arkansas, adjacent the town of Helena/'
It is conceded on all hands that the true construction of this
deed will determine the rights of the parties to this suit. If
the deed conveys three hundred and sixty-six acres to the
grantee, then the law arising upon the agreed case is unques-
tionably for the defendant. But on the contraiy, if it only
conveys three hundred and fifty-eight acres of land, the exact
quantity or nimiber of acres included in Russell's deed to
Phillips of the thirteenth of July, ▲. d. 1825, then it is evident
that the lessors of the plaintiff are entitled to a recovery of the
premises in question. The construction of the grant above
quoted has been discussed with much ability and learning by
the respective counsel engaged in the cause, and we have de-
rived no inconsiderable aid and assistance in the formation of
our opinion from their logical and demonstintive aiguments.
In the construction of deeds, says Lord Mansfield, the rules
applicable to such instruments are accurately laid down and
defined by all the authorities; and they rest for their founda-
tion and support upon reason, justice, law, and common sense.
We shall, in the present instance, only state a few of them, and
such as we deem to have a direct bearing on the case under con-
sideration.
1. All deeds shall be construed favorably and as near the in-
tention of the parties as possible, consistent with the rules of
law: 4 Cm. Dig. 202; Bridge v. WeUingUm, 1 Mass. 219;
Worthington et aX. v. Eylyer et oZ., 4 Id. 202; Ludlow v. Mayer, ^
8 Johns. 383; Th)op et al. v. BlodgeU* 16 Id. 172. 2. The
construction ought to be put on the entire deed and
every part of it. For the whole deed ought to stand
together, if practicable, and eveiy sentence and word of
1. Jioefeton « deM. £iidloi0 T. ifycrt, 8 Joliiis. 888: S. a, • Am. Dm. 801.
8. Jiaefeton m dtm. Trcfup t. Blodg§L
July, 1840.] Doe v. Porteb. 451
it be made to operate and take effect: 4 Cra. Dig. 203»
fleo. 5, and authorities aboTe cited; P. Wms. 497; Yaugh. 1G7.
8. If two clauses in a deed stand in irreconcilable contradic-
tion to each other, the first clause shall prevail, and the latter
shall be regarded as inoperative : 4 Cow. 248; Hard. 94; 6
Wood. 107; 4 Com. Dig., tit. Fait. 4. The law will construe
that part of a deed to precede which ought to take precedence,
no matter in what part of the instrument it may be found: G
Rep. 38 b;* Cromwell v. CriUenden* 1 Ld. Raym. 335; 10 Rep.
8; Bulst. 282. 5. All deeds shall be taken most strongly
against the grantor. For the principle of self-interest will
make men sufficientiy careful not to prejudice themselves, or
their rights, by using words or terms of too general or extensive
a signification: 4 Com. Dig., tit. Fait; 4 Cru., p. 203, sec. 13;
8 Johns. 394,*' 16 Id. 172;' Adams v. Frothingham, 3 Mass. 352
(3 Am. Dec. 151]; Watson et al, v. Boylston, 6 Id. 411.* These
rules are now regarded as maxims in the science of the law,
and they are perfectly conclusive of the points to which they
apply.
In all conveyances the grantor must describe the thing granted
with sufficient certainty to ascertain its identity. And if he
fails to do so, the grantee takes nothing, by reason of the un-
eertainiy of the grant; for there being nothing for the deed to
operate upon, of course nothing passes by it.
The most general and usual terms of description employed in
deeds to ascertain the thing granted, are, first, quantity; sec-
ond, course and distance; and third, artificial or natural objects
and monuments. And whenever a question arises in regard to
description, the law selects those terms or objects which are most
certain and material; and they are declared to govern in the con-
struction of the deed. Upon this principle it is held that quantity
must yield to course and distance, and that course and distance
must give way to artificial and natural objects. These plain and
salutary principles are fully sustained by all the authorities, as
a reference to them will fully show: Williams v. Watis,^ 6 Cranch,
148; Shipp et al. v. MiUer's Heirs, 2 Wheat. 316; Jacksoti v. Bar-
ringer, 15 Johns. 471; Powell v. Clark, 5 Mass. 355 [4 Am. Dec.
€7]; Jackson v. Hubble, 1 Cow. 617. In Jackson v. Moore, 6 Id.
717, it is declared that not only course and distance must yield
to natural and artificial objects, but quantity, being the least
part of description, must yield to boundaries or numbers, if
1. Ffndk't eoit, 4. JcuJaon v. Blodgtt.
2. CromtoeU t. Orumiden. 5. 5 Maw. 411.
S. /ocfetofi ▼. Oardntr. ^^itU r. ^itti.
452 Doe v, Fobter. [Arkansas
ihej do not agree. And in Mann t. Pearson^ 2 Johns. 40, and
in Jackson v. Barringer, 15 Id. 472, it is laid down to be a well-
settled rule, that where a piece of land is conveyed by metes
and bounds, or any other certain description, that will control
the quantity, although not correctly stated in the deed, be the
same, more or less. And the example put by way of illustra-
tion is, that if a man lease to another all his meadows in D. and
S., containing ten acres, when, in truth, they contain tweniy
acres, all shall pass: Jackson v. Wilkinson, 17 Id. 147. In
Powell V. Clark, 5 Mass. 356 [4 Am. Dec. 67], the rule is thus
stated: '^ In a conveyance of land by deed, in which the land ia
certainly bounded, it is veiy immaterial whether any or what
quantiiy is expressed; for the description by the boundaries is
conclusive.'' '^ And when the quantiiy is mentioned, in addi-
tion to a description of the boundaries, without any express
covenant that the land contains that quantity, the whole must
be considered as description."
It is a general role, ** if there are certain particulars onoe suf-
ficiently ascertained, which designate the thing intended to ba
granted, the addition of a circumstance, false or mistaken, will
not frustrate the grant." " But when the description of the
estate intended to be conveyed includes several particulars, all
of which are necessary to ascertain the estate to be conveyed,
no estate will pass except such as will agree to every part of the
description." Thus, if a man grant all his estate in his own
occupation, and in the town L., no estate will pass, but what ia
in his own occupation and in that particular town. The de-
scription of the tenements granted must, in such a case, com-
prehend all the several particulars and circumstances named,
otherwise the grant will be void: 4 Com. Dig., Fait, B. 8;
Doughty's case;^ Jackson v. Clark, 7 Johns. 223; Blange v. Oould,^
Oro. Car. 447, 473; Jackson v. Loomis, 18 Johns. 84. But if the
thing described is suffidentiy ascertained, it shall pass, though
all tiie particular descriptions be not true. For example, if a
man convey his house in D., which was in the possession of B.
C, when in truth and in fact it was in the occupation of P. C,
the grant nevertheless shall be good: Roe v. Vaumer,* 6 East, 51.
For it was sufficientiy described by declaring that it was in the
town of D. : Hob. 171;' Bro. Abr., Grants, 92. Wheie there is
error in the principal description of the thing intended to lie
granted, though there be no error in the addition, nothing wiU
1. 8 Co. 9. 8. Am v. F«
%. Blague y.GoUL 4. MiteMy t. Baflir.
July, 1840«] Doe v. FoBTEa 453
pass. Thus, says Lord Bacon, " if a person giants tenementum
tuum or omnia tenementa sua in the parish of St. B. without
Oldgate, when, in truth, it is without Bishopgate, tenura Oulir
elmiy A., which is true, yet the giant will be void, because, that
which sounds in denomination is false, which is the more
worthy, and that which sounds in addition is true, which is the
less. And though the words in tenura Chdielmi A., which is
true, had been first placed, yet it had been all one:" 3 Bep. 9;^
Stukdetj ▼. BuOer, Hob. 171; Doddington's case,* Co. lit. 2, 32,
33.
Where lands are first described generally, and afterwards a
particular description added, that will restrain and limit the
general description. Thus, if a man grants all his lands in D.,
which he has by the gift and feoffment of J. S., nothing will
pass, but the lands of the gift and feoffment of J. S. : 4 Com.
Dig. 287; 4 Cru. 325; 1 Johns. Ch. 210;* 4Cru. 226; Com. Dig.,
Parole, A, 23; Bott t. BurneU, 11 Mass. 167; Winihington ▼.
Bylyer, 4t Id. 205.
We will now proceed to construe the deed of Phillips to Een-
drick and Fisher according to the principles here laid down and
established. The deed does not create either an express or an
implied covenant to conyey an exact quantity of acres men-
tioned in the first clause of the sentence, unless the terms " one
other tract of land containing three hundred and sixty-six
acres," constitute such an agreement. Bad the deed stopped here,
there can be but littie doubt that the grantor would have sold,
and the grantees have taken the exact nimiber of acres as desig-
nated by these general terms. This it has not done, but it pro-
ceeds to add other words of greater certainiy, and of more par-
ticular description, limiting and restricting their general mean-
ing. The giant declares the premises sold to be the '' said tract
of land which was conveyed by William Russell to Sylvanus
Phillips, by deed bearing date the thirteenth of July, 1825."
Then the land sold and conveyed to Eendrick and Fisher is the
same identical tract purchased by Phillips from Russell by deed
bearing date thirteenth of July, a. d. 1825. Here, then, the land is
first described by quantity, and afterwards by boundary. That
being the fact, the deed in question falls precisely within the
rule — that the quantity must yield to the boundary — ^because the
latter description contains greater certainiy and materiality,
igain, a particular description can not be limited by general ex-
pressions. In the present instance, there is a general descrip-
1. DowtWM COM. 9. a Co. 83. 8. NicoU t. HunUnffton, I Johns. Oh. 166.
454 Doe v. Fobteb. [Arkansaa^
tion, and then follows a particular description of the thing con-
veyed; and where that is the case, and the two descriptions con-
tradict each other, the particular description shall prevail. No
one can doubt but that Russell's deed furnishes a more accurate
and particular description of the land conveyed than the simple
a£Gjination that the tract contains three hundred and sixty-six
acres. Both parties fixed and agreed upon the metes and
bounds of Russell's deed for the purpose of ascertaining the
exact number of acres conveyed. For if this was not the case,
why did they refer to that deed, and recite it in the grant? By
incorporating it into their agreement, they made it a part of
their covenant, and constituted it the governing consideration
of their contract. It is no answer to this argument to say that
Russell's deed to Phillips lacked oertainiy in description, and
therefore its recital in Phillips' deed to Kendrick and Fisher
can not render that certain which is in itself vague and doubt-
ful. ' It is true that the deed conveys three hundred and thir-
ty-five town lots, a fraction of eighteen acres, and three hun-
dred and forty acres. The deed recited contains sufficient cer-
tainly to ascertain the quantity conveyed. The town lots are
specifically described, and so are the eighteen-acre tract and the
three hundred and forty acre tract. How then can the deed be
said to want certainty in description? The two tracts of eigh-
teen acres and three hundred and forty acres do not amount to
the three hundred and sixty-six acres, but only to three hundred
and fifty-eight acres. Russell's deed therefore only convejrs three
hundred and fifty-eight acres, and that being the case, tJie frac-
tion of three and eighty-two hundredths acres can not be included
within the grant made by Phillips to Kendrick and Fisher of
October 1, 1830.
The town lots mentioned in the deed recited are sorely not
embraced in the term '* one other tract of land," for in no point
of view can it be considered as falling within that description or
denomination. It is surely not a legal consequence that because
Phillips was the owner of the entire residue of the original
tract of six hundred and forty acres, after deducting from it
that portion out of which the town of Helena was formed, that
therefore he intended to convey the whole of that residue to
Kendrick and Fisher, neither does this position follow, or is
strengthened by the fact that the two deeds of thirteenth of
July and of first of August were recorded on the same day, to
wit: on the thirteenth of August, ▲. d. 1825. Phillips' deed
to Kendrick and Fisher, reciting Russell's deed to him, does not
July, 1840.] Doe v. Pobteb. 456
refer to the leooiding of that deed, but to the day upon which
it was executed. The tract of land conreyed is then definitely
described and ascertained by Bussell's deed. The grantor and
grantees are presumed to know the exact quantity of land con-
tained within the limits of Bussell's deed, and they both relied
upon the estimation therein expressed. The grantee paid the pur-
chase money for the number of acres contained in that deed, and
the grantor parted with the premises there conyeyed, according
to its metes and bounds.
In construing the deed from Phillips to Eendrick and Fisher
the court is restricted to the grant itself. For it contains no
ambiguity or uncertainiy upon its face. The intention of the
grantor must be collected from the face of the deed, and not
from any other foreign or extraneous matter contradicting that
deed. "The recital of one deed in another binds the parties
and those claiming under them." Techincally speaking, it
operates as an estoppel, and binds parties and privies — ^privies
in blood, privies in estate, and privies in law: 1 Ph. Ev. 411;
Com. Dig., tit. Ev., B. 6; 1 Salk. 285;^ Jackson v. Carver, 4
Pet. 83; 2 P. Wms. 482; Willes, 11;» 1 Dall. 67,-" Van Hoesen v.
HoUey, 9 Wend. 209. Here the grantor and grantee, and all
claiming under either of them, are bound by the recital. This
recited deed, then, fixes and ascertains definitely the precise
quantity of land, or number of acres sold and conveyed by
Phillips' deed bearing date first of October, a. d. 1830, to Een-
drick and Fisher. That quantity consists of three hundred and
fifty-eight acres and not three hundred and sixty-six acres; and
this bcdng the case, it necessarily follows, from the facts ad-
mitted of record, that fractional 0, as marked in the diagram,
containing three and eighty-two one hundredth acres, the land in
dispute, was never sold and conveyed to Kendrick and Fisher,
and consequentiy, th^ having no right to the premises, had no
power or authority to pass the titie of it to the tenant in pos-
session. The maxim then, caveat emptor, expressly applies to
his case, and he must look to his grantors for redress for the in-
jury sustained.
The general terms used in Phillips' grant to Kendrick andFisher
are resteained and governed by the recital of Russell's deed of thir-
teenth of July, A. D. 1825. 1. Because the description by quantity
contains mere words of explanation or addition, and constitutes
the lowestr degree of certainty in ascertaining the land granted.
2. Because the general terms used in the deed are afterwards
1. F^rd T.ti^. 2. SMUg ▼. WriffkL 8. Jforrif T. Van Dotm.
456 Jeffrey v. Ficklin. [ArkansaA^
restricted and limited by an enumeration of particnlarB that
definitely described the exact number of acres conyeyed. And
lastly, becanae both the grantor and the grantees having recited
another deed in the grant, they, and all claiming under them,
are estopped from denying or questioning the condusionB or
boundaries of the recited conveyance.
If the construction we have put upon the deed from Phillips to
Eendrick and Fisher, of the thirteenth of July, ▲. d. 1825, be the
true rule upon the subject, then it necessarily follows that the
instructions given to the juxj by the court below were evidently
erroneous. Therefore its judgment must be reversed with costs,
and a new trial awarded, and the cause remanded, to be pro-
ceeded in agreeably to the opinion here delivered.
Wekbb Dbsgbirions nr a Dexd Clasb, whioh are praferred: See St^fim
V. MeOoumdlt 32 Am. Deo. 489, and note, in which are ooUaoted the prior dacia-
koa on the anbjeot.
JeFFBET V. FlQELIN.
[8 AsZAinAS, 937.]
Waoxbs ufok TBI BuuLT ov A PsNDXNO EuBOTioir are uontraiy to paH
Uo policy, and can not be enforoed.
8cAXXHou>KB or MoNST Waoebxd upon thb Resojx 09 AS BLBCnOH
can not pay over the money lawfally, in opposition to the order of hia
principal; nor can he refnae to deliyer up the wager if demanded before
the determination of the final result of the election.
AonoN upon a sealed note. The action originated in a jua-
tice's court, whence it was appealed to the drouit court, which
gave judgment for plaintiflh, present defendants in error. The
note was given under the following circumstances: JeBrey and
Bagley, while in the store of Ficklin & Bennett, agreed to a
wager upon the result of a pending election. For the purpose of
carrying out the wager they executed to Ficklin & Bennett,
each their sealed note for tweniy-four dollais, and deposited
them in the hands of Bennett. The notes were to represent the
price of a saddle offered for sale by said Ficklin & Bennett, and
upon the determination of the result of the election, Bennett
was to deliver the saddle to Bagley, in case his candidate was
elected, and to collect its price from Jeffrey; while the opposite
course was to be pursued if the candidate of the latter were
chosen. Before the result of the election was determined the
parties to the wager agreed to rescind it, whereof the stake-
holder was duly informed, and was notified by Jeffirey in partio-
Jan. 1841.] Jeffrey v. Ficklin. 457
alar not to deliyer over the saddle under any ciroumstanoes, as
the -wager had been annidled, and he would not be held responsi-
ble for its price. Notwithstanding this notice Bennett deliTered
the saddle to Bagley, upon the result of the election datennui-
ing adyersely to the candidate supported bj JeiBnj.
nvpnaU and Ooohe, for the plaintiff in error.
T. Johnson, conira.
By Courty Dioxinson, J. Wagers, contrary to public policy,
that are immoral, or affect the feelings, interests, or characters of
third persons, are contrary to sound policy, and are not reooTer-
«ble in law. In a country where elections are frequent, and free,
AS in this, eyery means should be adopted to maintain them pure.
Wagers operate on the passions, and influence the parties, by
the strongest motives of pecuniary interest, to support, and in-
•duoe others to vote for the same person. The freedom of choice
and unbiased action is destroyed. The disposition to select men
for their integriiy and capacity, no longer exists. And the cor-
rupting influence proceeding from this species of gambling is
tinf ortunately felt, to a very great extent, by every class of society.
The consequences resulting from it, are to be deeply deplored:
■and therefore it is, that the courts uniformly discountenance
jtctions where they are founded in iniquity and injustice. Is the
•claim of the defendants in error of a character tiiat will permit
them to come into court with dean hands and pure consciences,
4md ask aid in the recovery of a daim for which no consideration
has been received? All the parties to the record -were pariicepB
-cruntnis. Bennett, the partner of Fiddin, as stakeholder of the
notes, was cognizant that they were bet upon an election then
pending; and though both parties had agreed, prior to the
result, to rescind the wager and withdraw the notes, Bennett re-
fused to ddiver them up. And, notwithstanding Jeffrey notifled
bim that he would not pay it, in any event, he retained pos-
session, and, upon the result of the election, delivered the saddle
to Bagley, the winner, and sued Jeffrey upon his note, which was
for the payment of the saddle, and obtained judgment in the
-cirouit court on appeal. Betting upon dections then pending,
as calculated to endanger the peace and harmony of society, and
to have a corrupting influence upon the public morals, has imi-
formly been considered as contrary to sound policy; and so it
was dedded in England, upon a wager on the election of a mem-
ber to parliament: Allen v. Heajn, 1 T. R. 5G. The whole doc-
trine is ably reviewed and sustained in the case of Yates v. i^bo^.
458 Field v. Dickinson. [Arkansas^.
12 Johns. 1. As to the character in which the defendants m
error stand, Comyn, in his treatise on contracts, 30, 46, saj^,
that '' it is a general role, that if the contract be executed, and
both parties in pari delicto, neither of them can recover, from the
other, the moneys so paid; bat if the contract continues, and ^he
party is desirous of rescinding it, he may do so, and recover back
the deposit." And this distinction is taken in the books, viz. :
" Where the action is in affirmance of an illegal contract, for the
performance of an engagement malum in se, it can in no case be
maintained. But where the action is in disaffirmance of such a
contract, and, instead of endeavoring to enforce it, presumes it
to be void, and seeks to prevent the defendant from retaining
the benefit which he derived from an unlawfal act, then it ia
consonant to the spirit and policy of the law that he should re-
cover." A stakeholder who pays over money bet upon an
election, in opposition to the express notice and order of the^
better, must do so at his peril; nor can a stakeholder refuse to-
deliver up the wager, if demanded by the party, before the final
result of the election. The contract was executory. The wager
probably originated in hasty zeal and the impulse of passion,
and when, on cool reflection, they were desirous of rescinding
it, Bennett refused to return the stake, as, by law, he was bound
to do. Having a knowledge of the whole transaction, and the
considexation for which the note was given, the circuit court
erred ia giving judgment in favor of the plaintiff.
The judgment is reversed.
Waqwsbb upon Rnui/r ov BuBonov Invaud: Stoddard v. lfarfjn» 19 Anu
Beo. 643; Bunn v. Siher, 4 Id. 892; Bwt v. (Tott, 18 Id. 407; MeOaOkkr t.
ffqgman^ 16 Id. 656.
Field v. Dickinson.
[8 Abxahbas, 409.]
TiBM "Bbtonb Sxas," IK THB STATUTE OT LuiTrATioiia, vndum withoii^
the state.
Assumpsit. The opinion states the case.
Ashley and Watkins, for the plaintiff in error.
Pike, contra.
By Court, DicEmsoN, J. The demurrer to the rejoinder of
the plaintiff below, raises the question, whether or not the statute
of limitations will run against a party who has never oome^
July, 1841.] Field v. Dickinson. 469
within the Umits of our state. The statute does not oommenoe
running until a complete cause of action has accrued, and this
occurs when the debt or duly can be put in suit, and there is a
party capable of suing. Whenever the statute commences run-
ning, it does not stop for any obstacle, but continues to run on.
Statutes of limitations are municipal regulations founded upon
local policy; and as they regard the remedy, and not the right
of contract, they i>osse8s no binding power beyond the juris-
diction of the particular states or governments that enact them.
As they do not enter into, or form any part of, the contract, the
lex fori, and not the lex lociy appHes in their interpretation. A
foreign statute of limitations can not, therefore, be pleaded to a
suit instituted here; and so it has been repeatedly ruled by all
the English and American decisions. In the present case, both
the plaintiff and defendant resided beyond the limits of the state
when the contract was entered into. Since that time, the
plaintiff in error has removed to this state, where he now resides;
the defendant still continuing to be a citizen of Kentucky.
To the defendant's plea of the statute of limitations, the
plaintiff repHed, that he was saved from its operation, because
he has always been a citizen of another state. This case arose
under our territorial statute of limitations, but we apprehend
the principle we are about to lay down will apply, with equal
force, to the statute of limitations under our state government:
Steele & McCamp. Dig., p. 381, sees. 1, 2. The statute, after
enumerating the class of cases in which it will run, and which
ambraoes the cause of action now under consideration, contaLos,
in express words, a saving in favor of infants, married women,
persons of unsound mind, and persons residing beyond seas.
These classes of persons the legislature saved from its operation,
until after their disabilities should be removed.
The inquiry now is, what is the meaning of the term beyond
seas? This proviso is not contained in the statute of 21
James, and in the case of Dupleen v. De Bose, 2 Yem. 154,'
Lord Chief Justice Cowper remarks, '' that it was plausible and
reasonable that the statute of limitations should not take place,
nor the six years be running, until the parties came within
the cognizance of the laws of England, but that that must be
left to the legislature." The term beyond seas first occurs in
the proviso of the statute of Anne, from which our statute of
limitations is derived. In England, the term meant persons
who resided out of the realm, and, as such, they were de-
1. DtipUkt T. De Bovtn, 2 V«m. UO.
460 State v. Harris. [Arkansas,
dared to be beyond seas, whether they were either natiye-bom
citizens or foreigners. The expression beyond seas has receiTed,
in our country, a fixed and determined meaning. It is now
well settled, that it applies to persons who are beyond the jixri»-
diction of the state; as well to foreigners who have never oome
within the jurisdiction, as to our own citizens who may be ab-
sent, and against whom the statute nerer commenoed running.
The different members of our confederacy are r^iarded in
the light of foreign governments, so far as their own municipal
regulations are concerned; and therefore, the citizens of one
state can not be barred by the statute of limitations of another
state, unless they bring themselves within its jurisdiction; and
so it has been repeatedly ruled by all the authorities: Shelby v.
Ouy, 11 Wheat 861; Bank of Alexandria v. Dyer, 14 Pet 141;
StrU/ort T. Graeme,^ 8 Wils. 145; WiUiama v. Jones, 18 East,
449; EM v. IMe, 4 Mass. 208;' Buggies v. Keder, 3 Johns. 263,
(8 Am. Dec. 482]; Chonequa v. Mason and Brown, 3 Oall. 842."
The application of the principle here stated, clearly shows thai
the cause of action . of the plaintiff below, is saved by the
proviso of our statute, and consequently the defendant's re-
joinder to the replication must be adjudged insufficient because
it does not contain any matter that will defeat the cause of
action.
The judgment of the court below, is therefore affirmed,
costs.
MiAimro ofTibm "BbtondSxa** inetatuteof limitatioiis: See IFMlMy
▼. Ooddard, 92 Am. Deo. 216, and note.
State v. Habbib.
[8 Ammakbam, 870.]
Wbit ov Quo Warilanto is a Wbtt Issuable by the state at wiU and
of right, and is a demand made by it upon an individual, to show by
what right he exercises a franchise, which can not lawfully be exercised,
except by yirtne of some grant or anthority emanating from it^
Ok Quo WABftAMTO, THB BUKDXN IS UPON THB DEFENDANT of showing SQCh
facts as invest him with a complete legal title to the franchise in question.
Idem.— Upon a Quo Wabranto to the President or a Corporation,
requiring him to show his title to that office, he must show the existence
of the corporation, that he is possessed of the qualifications required by
law of the incumbent of the office of president thereof, aiui that he Is
the president.
I. StHtkorUy.Gramiu. S.U]fisa90S. ^ OkmqttaY.Manm^i OMLSiL
July, 1841.] State v. Harris. 461
In Plkadino GmzsNSHiP, an avennent that defendant is a citizen of th^
state is saffieient.
Quo Wakrakto, OwmosHiP of Laud, how Plbadbd.— Where the own-
ership of real estate is by Uwa prerequisite to the ezeroise of a frMioh]Be»
npon quo warrwUo, the party ezeroising the franchise must in his plea
describe the real estate of which he is owner, and how he has derived
title thereto, and exhibit the deeds and records by which his ownership
is evidenced.
Idsm. — OwHKBSBip ov SiooK, where a prereqnisite to the ezeroise of a
franohisft, mnst be pleaded, so as to show that the stock was originally
awarded after a oomplianoe with the requirements of law, and if acquired
by the defendant by transfer, the transfer must be set out; and the title
deeds and records through which the defendant's title thereto has been
acquired, must be exhibited, or some legal excuse for thi^ non-produo-
tton must be made.
IniM.— In PUADnro an BuonoN to tbb Owwum of DntioroB, by the
stockholders of a corporation, defendant must show thai the election was
held agreeably to law and in oonformity with and in pursuance of the
otdinanoes and regulations of the govemii^ board of the corporation,
and that at such election he received a majority of the legal votes cast;
if his daim is by virtue of an election by the board of directors, to sup-
ply a vacancy therein, he must show the existence of a board competent
to electa and that a vacancy exirted therein, and how such vacsncy arose^
and his subsequent election.
DiFiiauNT nr Quo Waxbavto Nun> onlt Show a Fbima Facb Lual
Right to his enjoyment of the franchise; that if his pleading show an
election by electors acting under color of legal right, it is sufficient; and
that the electors were not poesessed of the proper qualifications must be
pleaded in avoidance by the state.
Whxbx thx Tsanbfie of Stook la Riquirbd, by ordinance of the corpo-
ration, to be entered upon a transfer book, the transferees of the stock
will not become stockholders prior to the entry on the transfer book.
Quo WABBANTO. The opinion states the case.
Ashley f for the state.
Ibwler, covUra.
By Court, Binoo, C. J. This is a writ of qito warravio^ re-
quiring the defendant to show by what warrant he exercises the
office of president of the Beal Estate bank of the state of Arkan-
sas. The defendant appeared to the action, and filed a plea,
setting forth the authority by virtue of which he claims the right
to exercise said franchise; which, on demurrer thereto, was ad-
judged insufficient, and leave granted the defendant to answer
over; whereupon, he filed three separate pleas to the action, each
purporting to show a distinct authority for his exercising said
office. To these pleas the plaintiff filed a demurrer, assigning
therein specially numerous and various causes of demurrer. The
462 State v. Harris. [Arkanaab,
defendant joined in the demurrer; and the legal questions aris-
ing thereupon being argued by counsel, as well on behalf of the
plaintiff as the defendant, were submitted to the court, and are
thus presented for our consideration and dedaion. It will be
remembered that the writ of quo toarrantOy which the state may
issue at will and of right, is emphatically a demand made by the
sovereign upon some individual, to show by what right he exer-
cises some franchise apx>ertaining to the former, which, accord-
ing to the constitution and laws of the land, he can not legally
exercise, except by virtue of some grant or authority from the
sovereign; and that in such case, the law imi>oses upon the de-
fendant the burden of showing such grant or authority as in-
vests him with the legal right to such franchise. And therefore
the defendant, in answering such demand of the state, unless
he disclaim all right to the franchise in question, and deny that
he has assumed its exercise, must show such facts as, if true,
completely invest him with the legal title to it; otherwise, the
law considers him a usurper, and denounces judgment against
him, leaving the franchise to be held by the state, or such other
person as may have a valid legal title thereto, derived by or from
some grant or authority from the state.
Do the facts contained in the pleadings under consideration,
show the defendant invested with the legal right to hold, enjoy,
and exercise the franchise of president of the Heal Estate bank
of the state of Arkansas ? The charter of said bank restricts
the right of holding the capital stock thereof to citizens of the
state of Arkansas, owning real estate situate therein, during the
period of four years from the date of the charter^ which was
approved on the twenly-sixth day of October, 1836, except in the
case of partners, where one of the partners is a citizen of this
state, and owns not less than one third of the property taken as
securily for the stock based thereupon: Sees. 13, 20. The
right of becoming a director is restricted to such persons as are
stockholders; and the right of becoming a member of the cen-
tral board of directors, is limited to those who are members of
the different boards of directors of said bank; and again, the
right to become president of the bank, is further restricted to
the three directors who are members of the board of directors
of the principal bank, and also of the central board of directors
of said bank.
The defendant, therefore, to establish a valid legal title to the
franchise in question, is bound to show: 1. The acceptance of
the charter by the corporators; 2. That he is a citizen of this
July, 1841.] Statb v. Harris. 463
«tate; 3. That he is the owner of leal estate situate in this state;
4. That he is legally a holder of capital stock of said bank; 5.
That he is a director of the board of directors of the principal
bank; 6. That he is a member of the central board of directors
of said bank; and 7. That he is president of said central board.
As regards citizenship, the simple averment in the plea, that
the defendant is a citizen of this state will be sufficient. But to
show that he is the owner of real estate situated in this state,
inasmuch as that fact must depend ui>on a grant from the United
States, or some grant or concession confirmed by their authority,
and the defendant, whether he be the grantee or confirmee, or
deriyes his title thereto by direct conveyance from the grantee or
confirmee; or by and through other intermediate conyeyanoes,
or by descent, devise, or other legal transfer, can only establish
his title by exhibiting the deeds, or records by whidi it is ac-
quired; all of which the law presumes to be in his possession;
consequently as he has their legal custody, and is presumed to
know the facts by which he can establish his title to the estate,
better than his adversary, he must, according to the well-settled
principles of pleading, by appropriate averments in his pleading,
describe the real estate owned by him, show that it is situate in
this state, and how he derives titie thereto, so that the court
may see and determine whether or not he is the legal owner
thereof, and if necessary to the attainment of justice, that an
issue may be formed thereupon as to that fact. In this respect,
the defendant's pleading is defective and insufficient.
According to the provisions of the charter, capital stock of
the bank could be acquired originally by citizens of this state
only (except in cases embraced by the proviso to the twentieth
section of the charter), who subscribed therefor, at one of the
places named in the fourth section and within the time pre-
scribed by said fourth section of the charter; who were in good
&ith owners and possessors of land situate within this state,
which land or a part thereof was in cultivation, or on which the
subscriber then resided and had his homestead, with the inten-
tion of extending the cultivation and improvement thereof as
required by the fifteenth section of the charter; and caused the
same to be appraised according to the requisitions of the sixth
section, and secured the stock so subscribed for, by mortgages of
such land, and by bonds executed to the bank in conformity with
the provisions of the fifteenth section of the charter, perfected to
the satisfaction of the managers, appointed and acting according
to the directions and prescriptions contained in the fifth section.
464 State v. Habbsel [Arkansas^
TTpon such seonritieB being approTed by the managers as suffi-
cient, and the amount of stock to which each sabeciiberinia
entitled, being by them ascertained and adjusted, in the manner
prescribed by said fifth section of the charter, and a schedule
made by said managers, as required by the section last men-
tioned, CTcry subscriber, whose security was so approyed and
whose subscription had been so adjusted, according to the obvi-
ous design and meaning of the provisions of the fifth and
seventh sections of the charter, is to be considered the holder
of BO much of the capital stock of said bank, as appears to have
been thus secured and awarded to him, and entitled to all tiie
benefits accruing therefrom, and subject to all the responsibili-
ties incident thereto, until he voluntarily parts with his stock,
or is legally divested of it in some manner authorized by law.
It follows, therefore, that the defendant, according to the princi-
ples before stated, is bound to show by appropriate aveimenta
in his pleading in response to the demand of the state, that there
was a board of managers as contemplated by the fifth section of
the charter; that such board was legally constituted in pursu-
ance of, and according to the provisions in said fifth section con-
tained; that said managers received from the superintendents
named in the fourth section of the charter, the books of sub-
scription together with the titles and other documents accom-
panying the same, and made out a schedule therefrom as di-
rected by said fifth section; that eleven thousand two hundred
and fifty shares of the capital stock of said bank, appeared to
said managers to have been subscribed for, and that all mort-
gages intended to secure the same had been perfected to their
satisfaction, and that said managers thereupon awarded to him,
or (according the fact) to the person from whom he derives his
title to the stock (if he is not a subscriber therefor), a certain
amount of the capital stock of said bank, and in the latter case
show further how he has acquired title to the stock, so awarded
to another; and exhibit the title deeds, or records, by and
through which he derives title to the stock in question, or show
some legal excuse for their non-production, so that it may appear
to the court, that he is the legal holder of the stock, and that the
same has been awarded, and if transferred, that it has been legally
transferred to him in the manner prescribed by the charter and
according to the provisions of law.
If the defendant claims to have been elected a director of the
bank, of the board of directors for the principal bank at Little
Bock by the stockholders themselves, he must show the ordi-
July, 1841.] State v. Habbis. 466
nanoe of the central board of direciors appointing the time
and place for holding Bach election, and the notice thereof, as
well as Gverj other ordinance or act of the central board relat-
ing to such election; that is, he must exhibit so much of the
ordinances and acta of the central board as are necessary to
show that such election was legally held, and by proper ayer-
ments show that it was held agreeably to law and in conformity
with and in pursuance of the ordinances and regulations of the
central board, and that he received a majority of the legal Totes
given at such election, and was thereui>on legally qualified and
inducted into said office. But if he claims the office by virtue
of an election by the board of directors to supply a vacancy
therein, he must show that there was at the time of his election
a board of directors competent to elect, of which some prior
incumbent of the office was a member and whose place had be-
come and was vacated, and continued vacant at the time
of his election by the board, either by his death, resignation,
or absence from the United States, non-acceptance, refusal to
qualify, or removal from office, and in the latter case, the
order, resolution, or sentence, by virtue of which he was re-
moved, must be shown, and he must also further show his elec-
tion to fill such vacancy, and his subsequent legal qualification
and induction into said office. If he claims the office by virtue
of an appointment by the governor, he must in like manner
show the appointment; and if it be to supply a vacancy, show
how the vacancy arose.
The defendant must also show that there was a board of
dixectors for the principal bank at little Bock for the trans-
action of business competent thereto, and that he was selected
by such board a member of the central board of directors;
and then show that there was a central board of directors,
constituted according to the provisions of the charter, and
acting as such, and that he was by such central board elected
president of the central board of directors. All of these
facts the defendant is bound to show, because his title to
the office in question depends upon their existence. And they,
like all other facts pleaded, must be set forth in legal form and
with reasonable certainty, so as to show in the defendant prima
facie the legal title to the franchise in question and form tho
basis of an issue, if the attorney for the state shall deem it
proper to controvert the truth of the facts as pleaded, or, admit-
ting their truth, to show other matter in avoidance, or which
estops the defendant from claiming title to the office.
▲k. nao. Vol. ZZZVI— 80
4C6 State v. HAnRTS. [ArkanBas^
That we may not be misuuderstood as to the view which we
have taken of the subject before us, we deem it proper to add,
that we consider the managers, whose appointment is authorized
and required by the fifth section of the charter, as possessing a
special authority only, particularly defined and expressly limited*
and therefore, any person, claiming a right which could only be
acquired through or by their acta or proceedings, must show
that the matter was within their cognizance, and that they acted
in pursuance of the authority with which they were clothed;
that the board of managers, when legally constituted and or-
ganized, i>osse8sed the exclusiye right of determining in the first
instance, upon the sufficiency of the securiiy offered by the sub-
scribers for stock, and also the amount of stock each sub-
scriber had secured and was entitled to according to the rules
prescribed in the fifth section of the charter: consequently their
decision as to the sufficiency of the security and the amount of
stock to which those who subscribed therefor, during the period
limited for subscriptions, upon the first opening of the books of
subscription, were severally entitled, must be considered as de-
termining prima fade^ the right of each subscriber to share or
not share the capital stock of said bank, as well as the amount
which those who appeared to them entitled to share the stock,
had respectively secured to their satisfaction, and thereby ac-
quired the right to hold. And, in our opinion, such of the sub-
scribers, as by the final determination of the board of managers
were admitted to be entitled to stock, became ipso facto stock-
holders, and were thereupon respectively entitled to all the
rights, privileges, and immunities conferred by the charter upon
the stockholders in said bank. And therefore in pleading to
show his legal title to stock, such original subscriber is only
bound to show that he was a citizen of this state (or is embraced
by the proviso to the twentieth section of the charter) and the
owner of lands situate therein; that a board of managers was
appointed and organized, according to the provisions of the fifth
section of the charter; that such board received the books of sub-
scription, title deeds, mortgages, and bonds from the super-
intendents named in the fourth section of the charter, and made
a schedule as directed in the fifth section thereof, and deter-
mined that he was entitled to a certain amount of the capital
stock of said bank, with proper avermente, showing that his
subscription for stock was made within the time limited by the
charter. These facts are sufficient in law to create a legal title
to stock, and notwithstanding the holder thereof may be di*
July, 1841.] State u Habbis. 467
Tested of his right, it is not neoessarj for him to 9how it, but
the state, if she wishes to take advantage of it, must show the
fact hy way of replication to the defendant's pleading. We do
not, however, deem it neoessaiy to express any opinion as to the
grounds upon which, or the mode of proceeding by which, a
stockholder may ba divested of his stock, as that question is not
legitinuitely presented by the pleadings before us.
We also think it proper to state that the defendant, in order
to show a legal title to exercise the office of president of the
bank, need not show that the several members of the different
lx)ards of directors^ by and through whose election or selection,
he derives titie to the office, were either citizens of the state, or
stockholders, or directors dejwre, as the law presumes those who
act in that capacity under color of right, as possessed of every
requisite qualification, and that their acts are authorized and
valid until the contrary appears; and therefore, in this respect,
his pleading will be sufficient, if it shows in each instance a board
of directors acting under color of legal right, and in every other
respect legally competent to make such election or selection, as
the case may be, leaving their incapacity, disqualification, or
want of qualification, if any exists, to be shown by the state in
avoidance of the right so shown by the defendant. The defend-
ant however, as to the facts necessary to be stated as well as the
mode of stating them, stands precisely in the attitude of every
other suitor in court; and therefore he is only bound to show in
the first instance such facts as, if true, confer upon him a legal
right to exercise the franchise in question. But like other suit-
ors, he is bound to show, by his pleading, all deeds, ordinances,
records, and written doctmients, without which he could not ac-
quire or possess the legal right to hold or exercise the franchise;
and if he fails to do so, without showing some valid excuse for
not doing it, his pleading must for this cause be deemed insuf-
ficient.
This explanation of the views which we entertain in regard to
the legal requisites of the defendant's pleading in the case be-
fore us, and of the principles upon which some of our conclu-
sions are based, we think sufficientiy explicit to prevent any mis-
conception thereof, and therefore we deem it unnecessary to say
more on the subject. The rule as to prolixity in pleading does
not dispense with the statement in a concise and legal maimer
of such facts as are indispensable to show a legal right to the
thing demanded, or a valid legal defense against the right
claimed, or demand made by the plaintiff, nor can any pleading
468 State v. Evan& [Arkansas
containing nothing more be legally objected to on account of
its length.
From this exposition of the law it will be perceiyed at once,
that no one of the pleas of the defendant contains all of the facta
essential to show. a legal right in the defendant to exercise the
franchise of president of the Beal Estate bank of the state of
Arkansas; and therefore the demurrer thereto is well taken and
must be sustained.
Hie defendant sabsequently offered an amended plea; but the state ob-
jected upon written ezoeptione to its being filed. After argument thereon
the court held the plea bad in not proceeding, after stating the award of stock,
to show notice thereof given by the board of managers, the election of di-
rectors and of a central board, and the organisation of the bank by the
election of president; and they further held it bad, because it set up the &fCt
that Collins, who had been elected a director and his seat refused him, and
Harris elected to fill the vacancy, was not a citiaen of the state — a matter as
to which the boards had not adjudicated, when they decided on his claims to
his seat, and not taken by them as one of the grounds for refusing him his
seat; and because it stated that the transfers from the original stockholderB
and others, whose assignee Harris was, were not entered upon a transfer
book; for it was held that the ordinance of the central board was imperative
and could not be disregarded by the local boards; and that if no transfer book
had been provided, no person had become a stockholder by any transfer which
had taken place; and that a transfer book must be opened and the transfer
entered on it, before the transferees could become stockholders. They there-
fore refused leave to file the plea, whereupon the defendant declined o£fatii|g
any farther defense, and judgment of ouster was entered accordingly.
BmcfF AND Object or Wbtt or Quo WAsajxroi See note to Peopk t.
Bmmdaer^S.R. R. (7o., 90 Am. Bee. 44. QetStaieT. BvamM^potL
SXAXE V. EVANB.
£8 Abkahsas, 686.]
.PlUMiXDnro BT Quo Warbaitto is a Bjemedt by which tiie state may
at pleasure require any citizen exercising a public fraDchiee or an-
thority which he can not legally exercise without some grant or anthor-
ity from it to show the warrant under which he acts, in order that there
may be a determination of his legal right.
Qbxbot and ErracT or the Psooebdinq by quo loarranto is either to oust
the party defendant of the franchise, if he falls to show in himaelf a
complete legal right to its exercise; or if the franchise has been legally
granted, but has been forfeited by the defendant or those under whom he
claims, then to seize it into the hands of the state.
lUDi. — ^Whxbb a Pkbson is Legally Ezititlbd to the RxKimiHE or a
I^fcANcmsE, he can not by quo toarranto be prohibited or restrained from
the doing of any particular act or thing, the right of doing which it
claimed by virtue of such office or franchise, and oonstitates OKdy an in-
tagcal part of the rights, powers, and privileges incident thereto. Thus
July, 1841.] State v. Evans. 469
a judge legally elected, can not be prohibited by rach a proceeding from
taking cognizance of and adjudicating any suit or proceeding instituted
and pending for adjudication in any court which he is authorized to hold,
although such court may not legally possess jurisdiction over the matter.
Quo WABBAHTO requiring the defendant to exhibit the author-
iiy by virtae of which he claimed to exercise jurisdiction oyer
two cases then pending in the circuit court for Pulaski county,
in each of which William E. Woodruff was a party; it being rep-
resented in such writ that no disqualification to try such causes
existed in Hon. J. J. Clendenin, the judge of said court. A
plea was put in» wherein it was shown that the said Hon. J. J.
Clendenin had prior to the issuance of the writ officially certi-
fied to tbe governor his disqualification to preside in certain
cases then on trial in his circuit, wherein the two cases in ques-
tion were included, and that thereupon the governor had ap-.
pointed and commissioned defendant special judge to try all the
casee included in the certificate. The replication admitted the
truth of the &cts stated in the plea; but asserted that the sole
reason which had caused Judge Clendenin to certify his disqual-
ification to sit in the two cases mentioned in the writ was his
supposed relationship by affinity to William E. Woodruff,
whereas the fact was that no such relationship existed. There
was a joinder in demurrer upon the replication.
AMey and WaiiBins, for the state.
Oilckrist, contra.
By Court, Bihoo, C. J. The pleadings, although they are in
some respects rather uncertain and informal, are belieyed to be
substantially good, if the facts disclosed are such as in law
authorize the writ, or enable the state to require the defendant
to show his warrant or authority to preside upon the trial of and
adjudicate the cases therein mentioned. The first question,
therefore, to be determined, is, whether the action, or legal rem-
edy for the wrong supposed to have been committed, has not
been misconceiYed? It must, we think, be conceded, that the
common law regards the proceeding by writ of quo warranto as
the most appropriate remedy for the king, by which he may at
pleasure require any subject exercising a public franchise or
authoriiy which he can not legally exercise without some grant
or authority from the crown, to show by what warrant or au-
thority he exercises it, and thereupon demand and have a judi-
cial trial and determination of the legal right of the defendant
to exercise such office or franchise; and that, by analogy, the
470 State v. Evans. [Arkansaa^
state here may in like cases haye the same remedy. But here,
as in England, the object and eflfect of the proceeding must be
either to oust the party defendant of the franchise, if he fails to
show in himself a complete legal right to its exercise, derived
from or under the authority of the state, or, if the franchise has
been once legally granted and has been forfeited by the defend-
ant or those through whom he derives title to it, to seize it into
the hands of the state. But it is believed that no precedent can
be found where this writ was ever issued for the purpose of re-
stricting or preventing any one legally possessed of a public
office or franchise, from exercising any right, authority, or
privilege incident thereto, or claimed by virtue thereof. It is a
legal proceeding, authorized exclusively for the purpose of in*
vestigating and determining, by judicial authority, the legal
right to a public office or franchise, but is not nor ever ma
authorized by the common law to be used as the legal instm-
ment or means of prohibiting or restraining a public officer, or
person exercising a public franchise, from the doing of any par>
ticular act or thing, the right of doing which was claimed by
virtue of such office or franchise, and constituted a i>ortion only
or an integral part of the rights, powers, and privileges inoident
thereto.
For example, although it is the appropriate legal proceeding
to oust or remove from office, by judical authority, a person who
is ineligible to the office of judge of the circuit court, or who
has not been legally elected, appointed, commissioned, or quali*
fled to hold such office, yet if the office be held by a person
eligible thereto, who has been legally elected, or appointed^
commissioned, and qualified to hold it, he can not by such pro-
ceeding be legally prohibited or prevented from taking cogni-
zance of and adjudicating any suit or proceeding instituted and
pending for adjudication in any court which he is by law author-
ized to hold, although such court may not legally possess juris-
diction of the matter, or authority to adjudicate and determine
the controversy. So, if the commission be special, to hold plea
of and adjudicate and determine certain cases particularly men-
tioned and described, a portion only of which he can legally
adjudicate and determine, and he assumes jurisdiction over all
of the cases so mentioned and described, notwithstanding the
want of legal authority in him to adjudicate and determine a
part of them, he can not be legally restrained or prohibited
therefrom as to the cases only which he has no legal right to
take cognizance of, try, and decide, by any proceeding upon a
July, 1841.] State v. Evans. 471
writ of quo warranto; because the object and effect of the pro-
ceeding in such case would not be to oust or digest him of the
office itself, but only to prohibit him from exercising a power in-
cident to the office in regard to a particular case; thus conceding
to the defendant the legal title to the office, and denying only
his legal right to exercise it over a particular case, or in refer-
ence to some particular matter or subject, which is not, and
never was, the legitimate office or object of such writ, or the
proceedings thereupon authorized by law.
The defendant shows that the judge of the fifth judicial cir-
cuit, embracing the couniy of Pulaski, had officially certified to
the gOYemor the fact of his disqualification to preside on the
trial of sundiy cases then pending in the circuit court of said
county, which were specially designated, and among which were
the cases mentioned in the writ; and that the governor there-
upon appointed and commissioned specially the defendant for
the trial and determination of the cases so certified, which were
also specially enumerated in his commission, including with
others the cases mentioned in the writ; and these facts are not
controverted by the state, but are, by her replication, admitted
to be true. The defendant, therefore, from aught that appears
in the pleadings before us, is eligible to and legally possessed of
the office of judge of the circuit court, and notwithstanding his
office and authority are limited to the trial and determination of
the cases specified in his commission, he was unquestionably in-
vested with legal authority to hold the circuit court in which
such cases were pending, for their trial and determination, and
in reference thereto, was clothed with all the powers appertain-
ing to said court, and was by law to preside therein pending
their trial and determination, unless prevented by some legal
remedy applicable to the case, and interposed, prosecuted, or
presented by the parties themselves, instead of the state, if in
fact he had no legal jurisdiction of, or right to try and deter-
mine a portion only of the cases mentioned in his commission.
The writ before us does not require the defendant to show by
what warrant he exercises the office or franchise of judge of the
circuit court in and for the couniy of Pulaski, but simply de-
mands of him to show by what authority he exercises said office
in respect to the two cases therein mentioned, being a part only
of the cases he was commissioned specially to try. Nor doen
the replication question his legal right to the office itself, but
simply denies the disqualification of the regular judge of the
fifth judicial circuit, to adjudicate the cases mentioned in the
472 State t;. Evans [Arkansaa.
writ, thus attemptiBgy asit were, to divide the offioe, and to con*
sider it as a distinot offioe depending upon a separate wanant in
xefexenoe to eadh case, which the judge is commissioned spe-
ciallj to tiy and detemune, contrary to tbefact, as well as
eveiy principle of law and justice. This principle, if ad-
mitted to be true, might subject the ofBcer to the yexation and
expense of exhibiting his authority in every case pending for
his adjudication, and a judgment in one case would be no bar to
the demand made of him in another, nor could any judgment
of ouster from office, or other legal judgment, that we are
aware of, be pronounced against him in such case.
And therefore we are of the opinion that the legal remedy for
the wrong, if any has been committed by the supposed unau-
thorized and illegal certification, to the governor by the regular
judge of the oirouit court of Pulaski county, of the cases men-
tioned in the writ, has in this proceeding against the defendant
been misconceived. And for this reason the demurrer to ihe
replication must be sustained.
8m Asfe ▼. Amt^ onli^ 46a
OASES
TN THB
SUPREME COURT OF ERRORS
ov
OONNBOTIOUT
YaHBUHKIBE V. ELlBTFOBD FiBB Ik& Go.
[14 OomaonouT, 141.]
AMaoHMMXTT ov ▲ Ghosb IN AoTioN IS OF NO BvFEOT M against mb-
aeqaent pnrchasen, without notioe, from the aangnor, or agunit hia
attaching creditors, nnleas within a reasonable time after the aarign-
ment notice thereof is given to the debtor.
Sgibe taoias. The plaintiffs instdtuted their Btiit against Jo-
seph Mortimer, a non-resident, by process of foreign attach-
ment, wherein they attached the indebtedness due to said Mor-
timer by the present defendant. The writ was served on
defendant on the twenty-fourth of February, 1837. The in-
debtedness had accrued to Mortimer by reason of the loss by
fire of certain property covered by a policy of insurance issued
to him by defendant. Joseph Mortimer was a citizen of the
state of New York, and in that state, on the fourteenth day of
February, 1837, for a valuable and sufficient consideration, as-
signed and delivered to John Mortimer the policy on which de-
fendant was liable to him. Evidence was adduced to the point
that by the law of New York an assignment of a chose in action
upon delivery of the instrument to the assignee transferred to
the latter the title, without the necessity of notice to the debtor
of the assignment. On the third of April, 1837, John Morti-
mer first gave defendant notice of the assignment, though dur-
ing the whole period intervening between the day of the assign-
ment and the notice, regular daily communication by mail ex-
isted between the residence of said assignee and the town of
474 Vanbuseirk v. Hartford F. Ins. Co. [Coniu
Hartford, the residence of the debtor. Upon this state of faotSt.
the case was reserved for the opinion of this oonrt.
W. W. EOsworth, for the plaintifb.
Hungerford and Cone, contra.
Watte, J. The plaintiffs brought their suit by foreign ai»
tachment, against Joseph Mortimer, and attadied a debt
claimed to be due to him from the defendants upon a policy
of insurance. Having recovered judgment in that suit, they
brought their scire fadaa against the defendants to recorer their
demand. Payment was resisted, by the defendants, upon the
ground of an assignment of the debt made to John Mortimer,
previous to the attachment. It is found, by the court below,
that no notice of that assignment was given to the defendants
until long after the attachment.
The question arising in this case, is, whether the plaintifb ara
entitled to recover. If the case is to be governed by the laws
of this state, it is clear, that the defense can not prevail: for the
rule here is well settled, that, in order to perfect an assignment
of a chose in action, as against banajide creditors and purchas-
ers without notice, notice of such assignment must be given to
the debtor within a reasonable time; and ilnless such notice i»
given, creditors may attach and acquire a valid lien; and oth-
ers may purchase the debt, and gain a title superior to that of
the first assignee: Bishop et al. v. Holcornb, 10 Conn. 444; Judah
V. Judd, 6 I^y, 534; Woodbridge v. Perkins, 8 Id. 364. And so
far as regards subsequent purchasers, the same law is fully
recognized and established in England: WiUiams v. Uiorp, 2
Sim. 257; Dearie v. HaU, 3 Buss. 1; Loveridge v. Cooper, Id.
30; Foster v. Cockerell, 9 Bligh, 332; 2 Story's Eq. 301. Here
no notice of the assignment of the debt to John Mortimer waa
given to the defendants until after the attachment; and it is not
claimed, that the plaintiffs had any knowledge of that assign-
ment. They, therefore, by the law of this state, acquired a lien
paramount to the title of the assignee. In this respect, an at-
taching creditor stands in a situation, very similar to that of a
subsequent purchaser. He obtains a lien upon the debt, as
valid as the title acquired by a purchaser. But although it is
not denied by the defendants, that such is the law of Connect-
icut, yet it is claimed by them, that the assignment was made in
the state of New York, where a different rule of law applies in
relation to assignments of choses in action; and that upon the
June, 1841.] Vanbuskirk v. Hartford F. iNa Co. 475
{yrinciples of comity, the same effect ought to be given to the
assignment here, as would be given to it in that state.
Bnt does it appear that the Lnw of the state of New York dif-
fers from ours ? It is found by the court (and as we are informed
in the language of the witness), that ** an assignment of a chose
in action is effectual to convey the title to the assignee, upon de-
livery of the instrament; and no notice need be given, by the
debtor, that such claim against him had been assigned." That
tmdoubtedly is the law here, so far as regards the parties to the
assignment. It is even good as against all persons who have
notice of the assignment. But would it be effectual as against
attaching creditors, and subsequent purchasers without such
notice? That &ot is not found by the court; nor, in our opin-
ion, is it a necessary inference from what is found.
To justify the conclusion that the laws of the state of New
York so widely differ from ours and those of England, upon a
principle, which we believe so correct and salutary, as that re-
quiring notice to be given of the assignment of a chose in
action, to protect it against the subsequently acquired rights of
other persons, it ought to be made distinctly to appear, and not
left to any forced construction. What would be the effect of
such a conflict of laws upon the present case, were it proved to
exist, we do not deem it necessaiy to determine. Upon that
questioi. there are various and conflicting decisions: Bichmond"
ville MsLnvfacturing Company y. PraU etal.,9 Conn. 487; Olivier
V. Ibwnes, 14 Mart. 97; Pomroy et Ux. v. Rice, 16 Pick. 22;
Daniels et al. v. WiUardy Pick. 86; Burlock v. Ibylar, Id. 335.
But as we are not satisfied from the finding of the coturt be-
Low, that any material difference exists between the law of this
state and that of New York, we are of opinion, that the plaint-
iffs are entitled to judgment for the amount due by the defend-
ants on the policy, at the time the original writ was served upon
them.
In this opinion the other judges concurred.
Judgment for the plaintiffs.
NacBSSiTT or Notioe to Debtor or ths Assionkxnt of thx Chose nr
AcnoK. — In speaking of the state in which the authorities have left this
question, McElnney, J., delivering the opinion of the court in Clo^felter v.
Cofic, 1 Sneed, 339, says: "There ia an irrecondlahle conflict of authority
upon this subject. The weight of American authority seems to be that the
assignment of a chose in action is complete in itself, and vests a perfect title
in the assignee as against third persons, without notice of the assignment to
the debtor. But the contrary of this is the settled doctrine of the English
476 Vanbuskibk u Hartford F. Ik& Co. [Conn
as wdl as of some of the eonrts of this country at the present day. The
latter we oonsider as the more reasonable and sale practical role, and have
accordingly held on more than one occasion, that the assignment of a chose
in action is not complete, so as to Test the title aheolntely in the assignee,
until notice of the assignment to the debtor; and this not only as rsgards the
debtor, bat likewise as to third persons. And, therefore, as between snbse-
quent pnrohasers or assignees of a chose in action, he is entitled to preference
who first gives notioe to the debtor, althongh his assignment be sabseqoent
to that of the other. To perfect the assignment not merely as against the
debtor, bat also as against creditors and sabseqaent bona Jide parchasers,
notice most be given. Henoe it follows that an attachment by a oreditor, in
the period intervening between the assignment and the notice, will have
preference."
Perhaps this view of the aathorities is not strictly correct^ and it would
be more proper to say that, by the preponderance of aathority, an ss-
signee of a chose in action without notioe to the debtor will be protected
against the claims of the creditors of his assignor, bat not as against the
claims of a subsequent assignee for value and in good faith. This rule is the
one countenanced by the Knglish cases: See Kmderley y. JeroU^ 22 Beav. 31,
PUhering v. IJfractnnbe B. Co., 3 U B. C. P. 235, both holding that the
claims of an assignee, though no notice has been given of the assignment,
are paramount to those of the creditors of the assignor, and commenting
upon and virtually overruling WatU v. Porier, 3 El. ft BL 743, which had
held such notioe neoessaiy; and see further to the point that the notice is
necessary where the claims of a subsequent assignee are interpoeed. Dearie
V. HaU, 3 Russ. 1; Lovendge v. Cooper, Id. 32; TwMtm v. Baaubottom, 2
Keen, 35; Meux v. BeU, 1 Hare's Ch. 85; Foeier v. BUuikaUme, 1 My. ft K.
297.
In thii country the cases are discordant. Some couits have followed in
the footsteps of that of Connecticut, and held an assignment of a chose in
action void both as to the creditors of the assignor and as to subsequent pur-
ohaaers, unless notioe has been given to the debtor. This rale, it is ex-
plained, is but the result of an application to the case of an assignment of a
chose in action of the principle that renders void, as to subsequent attaching
creditors and purchasers without notice, transfers of personal property, where
the possession and apparent ownership are left unchanged. Of course it is
apparent that if no notice of the assignment is given to the debtor, no op-
portunity is afforded third persons of ascertaining the transfer, and thus
the apparent ownership is left unchanged.
The following cases are in support of the Connecticut view that, as to
third persons, whether attaching creditors or subsequent purchasers, it ii
essential to the validity of an assignment of a chose in action that notioe
should have been given to the debtor, before the claims of such third per-
sons attached: Flichey y. Loney, 4 Baxt 173; Biehop v. Holeomb, 10 Conn.
444; Judah v. Judd, 5 Day, 534; Woodbridge v. Perkins, 3 Id. 364; Ward v.
Morrieon, 25 Vt. 600; Campbell v. Day, 16 Id. 558; Barrow v. Porter, 44 Id.
587. Notice, however, to one of two trustees, executors, etc., is sufficient:
Fosier v. Mix, 20 Conn. 395. It would appear, however, that the notioe must
emanate from the assigoee: Barrow v. Porter, supra; Dale v. KbnpUm, 46
Vt. 76. But notice to the debtor is unnecessary, if the attaching creditor
himself had notice of the assignmeDt: Bishop v. Holcomb, 10 Conn. 444.
Tennessee is one of the states whose courts require notice to perfect the as*
signment; but one exception has there been grafted upon the rule. It ii
this, that notioe is not necessary if the chose in action is evidenced by soma
June, 1841.] Hookeb u N. H. & N. Co. 477
written instroment, sach as a bond, note, etc, vhioh at the time of the as-
signment was transferred: Ooffoao Savings InstUute v, FeUowa^ 6 Coldw. 472.
This case conflicts with the principal case, since there the assignment was of
a chose in action evidenced by a policy of insurance, which was delivered over
at the time of the assignment, and which was yet held void as to a sabsequent
attaching creditor because no notice had been given the debtor. We think
that the doctrine of the principal case, adopting the basis which the courts of
Connecticut and Tennessee have both taken, is preferable; for though it be
true that if the bond or note is not in the possession of the assignor, this
might be enough to affect a subsequent assignee with notice, surely its trans-
fer would not afford any aid to the creditors of the assignor in obtaining
knowledge of the assignment. As we have said before, however, some of the
courts hold an assignment of a chose in action perfect, as to creditors of the
assignor, without the necessity of notice to the debtor. In support of this
proposition are the cases of Thayer v. Danida, 113 Mass. 131; Dix v. Cobb, 4
Id. 508; Wood v. Pcoftridge, II Id. 488; PtUman v. Hart^ 1 Pa. St. 285; UMted
States V. Vaughn, 3 Binn. 3d4; Stockton v. HaU^ Hard. (Ky.) 188; Bholen v.
OleweUmd, 5 Mason, 174. Some of these cases go so far as to declare that no-
tice to the debtor is unnecessary as to all third persons; but in none was it
necessary to do more than decide that the notice was not essential as far as
the creditors of the assignor were concerned.
In New York, however, in Muir v. Sehenck^ 3 Hill, 230, it is decided that
a first assignee shall be preferred to a seoond assignee, though no notice of
the assignment had been given to the debtor, and the seoond assignee had no
actual knowledge thereof. This is in disregard of the rule, that where one of
two parties has enabled a third, either by his negligence or active oo-opera-
tion, to perpetrate a fraud, all the evil oonsequenoes shall be visited upon him.
Opposed to this decision, besides the cases first cited, is the case of Afur-
dock V. /Ifm^, 21 Mo. 138, as well as a dictum in PeUman v. Hart^ I Pa. St.
265, where the oonrt, while deciding the notice to be unnecessary as to an at-
creditor, say that it is required as to a subsequent assignee for value.
iit):sr>i:
V. New Haven and Nobihampton Go.
[U OomnonoDT, 146.]
Taking Pbivatb Propebtt for Publio Use, What is. — ^The leglBlaturs
can not authorize a public use, the natural result of whose operation will
be to deprive the owner of adjoining property of its beneficial use, with-
out allowing compensation to the party injured. It can not authorize a
canal whose existence will cause the flooding of adjoining land, without
allowing compensation.
Lp tkb LflGiSLATcrBB Fail to Pbovidk a Rbmsbt for an injury occasioned
by a public use, for which injury nevertheless the party injured is enti-
tled to recover by reason of constitutional provisions, he will be remitted
to his common law remedy for the recovery of the damages suffared.
Case. The opinion states the case.
Towiey and T, C. Perkins, in support of motion for a new triaL
W. W. EUswortk, conhra.
478 Hooker r;. N. H. & N. Co. [Conn.
WiLLuxs, 0. J. The plaintiff having, as he claimed, proTed
the injniy done to his property, hy means of the waters of the
canal being discharged in such a manner as, after running
through the lands of other persons, to flow upon his, and
greatly injure it, demanded compensation in damages from the
defendants. It was claimed, and not denied, that the canal and
waste-weir were constructed under the direction of the commis-
sioners appointed by the legislature according to the provisions
of the act of incorporation; and the defendants claimed, that
the waste-weirs were properly made and used, and that no mora
water was permitted to flow through the same than was neces-
sary to preserve the dam of the canal from injury. The plaint-
iff claimed, that one waste-weir was not sufficient in that place,
and that the defendants had not used due caution and provi-
dence in not having more waste-weirs, and that they had no
right to use their waste-weir to the injury of the plaintiff's prop-
erty. And the court charged the jury, that as the legislature
had prescribed how the canal should be coQstructed, as waste-
weirs were indispensable, and as it was admitted that commis-
sioners, duly appointed for that purpose, approved of the waste-
weir and its location, it became lawful, and individuals must
protect themselves against it; and the inquiry for the jury was,
was it so used, or was it used without proper prudence or care?
On this instruction a verdict was given for the defendants; and
the plaintiff moves for a new trial. The claim was not, that this
damage became necessary, by reason of some act of Providence,
or some unexpected calamity, but resulted from using the waste-
weir, for the necessary protection of the canal, when the waters
were high. Neither does it appear upon the motion, that it was
claimed, that the plaintiff's remedy, if any, was before commis-
sioners. But the broad ground is taken, that the canal, being
authorized by law, and constructed according to the direction
of those who were appointed for that purpose, the defendants
are not responsible in damages to the plaintiff.
Two questions may here arise: Can the legislature pass an
act by which the property of one individual may be greatly in-
jured, by works of this kind, without giving compensation?
And have they here attempted to do it ? It is no doubt incident
to the sovereignly of every government, that it may take private
property for public use, of the necessity or expediency of which
the government must judge; but the obligation to make com-
pensation is commensurate with the right. The fundamental
maxim of a free government requires that the right of personal
June, 1841.] HooKER v. N. H. & N. Co. 479
liberty and piiTate pioperfy should be held saored: WUbinaon ▼.
Leland etal.,2 Pet. G57. *' And it may well be doubted whether
the nature of society and of government does not prescribe
some limits to the legislatiye power; and if any can be pre-
eczibed, where aze they to be found, if the property of an indi-
vidual, fairly and honestly acquired, may be seized without
compensation f Fletcher ▼. Peok^ 5 Oranch, 186,^ per Marshall,
C.J.
It is said, the government have a right of eminent domain;
in other words, the sovereign power has a right to resume the
jxroperty given to individuals, whenever the public interest re-
quires it. This, however, is to be done in the manner directed
by the constitution and laws of the state. The right of eminent
domain, says Ohancellor Sent, or inherent sovereign power, it is
admitted l^ aU publicists, gives to the legislature the control of
private property for public use, and for public use only. He then
mentions roads and canals, and adds, in these and other in-
stances, which might be enumerated, the interest of the public
is deemed paramount to that of any private individual; and yet
even here, the constitution of the TTnited States, and most of
the states of the union, have imposed a great and valuable
check upon the exercise of legislative power, by directing that
private property shall not be taken for public use without just
compensation; and a provision for compensation, is a necessary
attendant on the due and constitutional exercise of the powers
of the law-giver, to deprive an individual of his property with-
out his consent; and this principle in American jurisprudence is
founded in natural equity, and is laid down by jurists, as an ac-
knowledged principle of universal law: 2 Kent's Com. 839.
It is said, the land is not taken; and therefore, no compensa-
tion is to be made. At the time the canal was laid out and
built, it is evident that this land was not taken and devoted to
the public use; and we have no evidence before us tending to
show, that it was within the contemplation of the parties, or the
canal commissioners, that this land could be injured or affected
by the canal. Of course, no provision was made for such an
injury, at that time; and so far as appears by this motion, it was
not a point made below; and consequentiy, it is not one now be-
fore the court, whether the damages that might subsequently arise
could not be appraised, by the commissioners; and if so, if that
was not the only forum. lu the review of this case, it is as-
sumed, therefore, that the commissioners had no such power.
1. G Oranoh, 87.
480 Hooker u N. H. & N. Co. [Goniu
We come then to this question, whether tne act of incorpoia-
tion, if faithfully followed, will protect the defendants againsf*
a claim for damages to his property. If it will, it must be bo-
caose the act expressly provides for such a case; or because it
giyes another remedy; or because, from a fair construction, fJbis
is the manifest intent of the legislature, and authorized by ihe
constitution. As to the first. It can not be contended that
there is any express justification of such an injury in the act
itself. A.S to the second. That question not appearing to have
been made below, does not, within the rules of this court, arise
here. The defense, then, must rest upon this, that a fair con-
struction of this act protects them against the claim of the
plaintiff.
To determine this we must look at the act of incorporation.
The first and second sections incorporate the company, and
authorize the construction of the canal. The third section
gives power to hold real estate, surplus water, etc., and to ma]»
the canal, with necessary dams, waste-weirs, locks, etc. The
fourth creates a board of commissioners, with power to survey
and lay out the route of the canal, with all the works connected
therewith, and notify the parties, and appraise the damages.
The fifth provides, that the corporation may enter upon and take
possession of any lands, waters, and streajns necessary for the
prosecution of said improvement; and the commissioners are to
assess the just and necessary damages occasioned thereby; and
the lands, waters, and streams so taken shall be owned and pos-
sessed by said corporation, for their use forever. The sixth sec*
tion provides, that as the works may be injured, by unforeseen
accidents, the company may enter upon lands adjacent, and
carry away stone, gravel, and timber, as may be necessary and
proper to repair the same; which damages are to be assessed by
the commissioners. The seventh section provides for an appeal
from the commissioners. The twenty-first section appoints the
commissioners, and provides for their compensation, and that
they shall, from time to time, inspect the construction of said
canal and works connected therewith, and report; and when it
shall be completed, commissioners are to be annually appointed.
By the tweniy-third section, the conmiissioners are required an-
nually or oftener, to inspect the canal, bridges, etc.; and if out
of repair, or if the locks are not faithfully tended, may stop the
toll. These are, it is believed, all the provisions of the charter
which in any way bear upon the subject. And upon a careful
June, 1841.] Hookxb v. N. H. & N. Co. 481
inspection, a majorify of the oonrt can not admit, that the cBto«
ter warrants the constmction claimed by the defendants.
The route of the canal, the works upon it, and the damages
done by it, are to be subject to the decision of the commis-
sioners. Unless, therefore, the canal was made in the place
designated, and the works constructed in the manner approved,
by the commissioners, it would not be the canal of the charter.
This being done, and the damages assessed and paid, it became
a canal legally authorized, and tiie company became vested with
a legal right to the enjoyment of their property. But a very
different question arises, when the company in consequence
claims a right so to use this property as to do injury to others
without compensation. They must have a right to use the canal
for the purposes for which it was designed; but does this imply
that, to protect themselves in this enjoyment, they have right
to injure their neighbor ? An individual has good right to his
house and lands, to use them at his pleasure. The water from
his roof may greatly interrupt this use; but this gives him no
right to turn it upon his neighbor's land. When the legislature
gave to this company power to construct this canal, they author-
ized them to take the land necessary for that purpose, and also
what might become necessary to repair it afterwards, making
just compensation. But we look in vain for authority in this
company to protect the property thus acquired, in any other
manner than an individual has to protect his own property, ex«
cept so far as it is given by the sixth section.
When we consider the solicitude with which individual
rights are guarded in all free countries, and especially by our
own constitution; when we see how careful the legislature have
been, in this very charter, to provide for injuries which were
contemplated to arise; we think we should not do justice to the
intention of the law-givers, in supposing that they intended
that the vested rights of individuals shoiQd be taken away, or
essentially impaired, by the acts of this artificial person, more
than by the acts of individuals. At least, we must require very
clear evidence that such was their intent, before we can say, that
it has been done, and no compensation provided. A turnpike
company must have a right to repair their road and to protest
it; yet they have no right to turn the water, which washes the
road, on to the land of another person to his injury: Boughton
V. Carter, 18 Johns. 405. If it is said, that by the provisions of
the sixth section, the payment of damages is provided for; the
answer is, that this section provides, that the lands, water, and
AM. Dso. Vox*. XXXVI— CI
482 Hooker t;. N. H. & N. Oo. [Comw
streomB so taken shall belong to the coiporation f oreyer. Un-
less the injury here is of that kind, that payment of damages
Tests the title in the defendants, it can not be incladed in the
provision of this section; and if it is, it would seem to be cogni-
zable by the commissioners.
The great aigument, however, is, that as the canal, in its oon-
stroction, and particularly as it respects this waste-weir, has
been approved by the commissioners, the company are justified
in the prudent use of the works so constructed; and as the com-
missioners sanctioned a single waste-weir in this part of the
works, the prudent use of this waste-weir must also be sanc-
tioned. This may justify the company in making but a single
waste-weir. It is evidence that the commissioners were of opin-
ion that one waste-weir was sufiicient to prevent injury to the
company or to individuals from the water of the canal. But
suppose that they were mistaken, and that it was not sufficient;
is there any evidence that the commissioners themselves intended
that they should use it to the injury of third persons, rather
than sustain the damage themselves ? Or if they did so intend,
we should demand their authority to do this. An individual
may use his own property, without intent to injure his neighbor;
but if in so doing, he does him a damage, he must be answer-
able. For in all civil actions, the law doth not so much regard
the intent of the actor as the loss and damage of the party suffer-
ing; and although a man does a lawful thing, yet if any damage
do hereby befall another, he shall answer it, if he could have
avoided it. As if a man lop a tree, and the boughs fall upon
another ipso invito; yet an action lies. I have land through
which a river runs to your mill, and I lop the fallows growing
upon the river's side, which accidentally stop the water, so as your
mill is hindered; an action lies. If I am building my house, and
a piece of timber falls on my neighbor's house, and breaks part
of it; an action lies. If a man assault me, and I lift up my staff
to defend myself, and in lifting it up, hit another; an action lies
by that person; and yet I did a lawful thing. And the reason of
all these cases, is, because he that is damaged, ought to be recom-
pensed : Lambert et al. v. Besseyy T. Eaym. 423, 467, 468. So in an
action for an assault, where the defendant, a trained soldier, was
skirmishing with the plaintiff and his company, and the defendant,
with his musket, catnuditer, etper infortiinium^ et contra voluntaieni
8uum, in the discharge of his gun, hurt the plaintiff, it was resolved
for the plaintiff; and it was held, that no man, not even a luna-
tic, shall be excused of a trespass, except it be adjudged utterly
June, 1841.] Hookeb u N. H. & N. Oo. 483
withont his fault: Weaver t. Ward, Hob. 184. And where tres-
pass was brought for entering a close, and taking a horse, and
the defendant pleaded that he, for fear of his life, by threats of
twelve men, went into the plaintiJSf 's house and took the horse,
the plaintiff demurred, and it was adjudged for him, because the
threats could not excuse the defendant and make satisfaction to
the public: Oilbert v. Stone , Style, 72. Lord Bacon says, if a
a person be assaulted in his own house in a city or town, and
distressed, and to save his own life, sets £re to his own house,
which spreads and takes hold of the adjoining house; this is not
justified, because I can not rescue my own life, by doing any-
thing against the commonwealth: 15 Yin. Abr. 535.
If the common law so restricts indiyiduals in the protection
of their own property and lives, can we suppose that powers so
extensive were by implication given to this corporation ? If the
approval of the work by the commissioners was to be a perpet-
ual shield to the company for all injuries which might in future.
be done to individuals, would not all persons be called upon to
object before such approval? As it is, it is a mere ex parte
ooncem, of which the public have no notice, and in which in-
dividuals have hitherto understood they had no interest. Such
approval will give the company a right to take toll according to
the provisions of the charter; but it by no means follows that it
will protect them from damages done to individuals. Where a
turnpike company, under a favorable report of commissioners,
had received from the governor a license to collect tolls;
upon a quo warrarUo, it was held not to be sufficient evidence
that the road was finished: The People v. KingsUm and Middle^
toum Turnpike Eoad, 23 Wend. 194 [35 Am. Dec. 551.]
But supposing that the approbation of the commissioners
places the company upon the same ground, as if the particular
mode of construction had been pointed out in the act of incor-
poration; the question then would be, whether the grant of a
charter of incorporation to a canal company to construct the
canal in a certain manner, with proof that it was so constructed,
would justify the company in using it in such a manner as
to injure the property of other persons to protect their own.
We think that the party that makes this claim is bound to pro-
duce some authority in support of it. No such case is produced,
except that of HoUister v. The Union Company [25 Am. Dec.
36]. On the controiy, we believe that a different piinciple has
been adopted in other states under similar constitutions.
In Stevens v. The Proprietors of Middlesex Canal, 12 Mass.
484 Hooker u. N. K & N. Ck). [Coniu
466, 468, a suit was brought against a canal company, whicb
had constructed their works in such a manner that the water
oozed through the banks, and injured the plaintiff 's meadow.
No proof was offered to show that the defendants had done any-
thing not authorized by their act of incorporation; nor that they
had been guilty of any negligence, or any default, in the man-
ner of making or maintaining the canal. The court there held,
that as the legislature had, in that case, provided another mode*
of redress, the action would not lie; but they say: " When tha
legislature authorizes an act, the necessary and natural conse-
quence of which is damage to the property of another, he who
does the act can not be complained of as a trespasser or wrong-
doer. In the declaration of rights prefixed to our constitution^
it is provided, that private property shall not be taken and ap-
propriated to public use, without compensation to the owner.
So that if the legislature should, for public advantage and con-
venience, authorize any improTement, the execution of which
would require or produce the destruction or diminution of pri-
vate property, without affording, at the same time, means of re-
lief and indemnification, the ovmer of the property deetroyed or
injured, would undoubtedly have his action at common law,,
against those who should cause the injury, for his damages.
For although it might be lawful to do what the legislature
should authorize; yet to enforce the principles of the constitu-
tion for the security of private property, it might be neceesaiy
to consider such a legislative act as inoperative, so far as it
trenched upon the rights of individuals." There the injury is
supposed to proceed directly from the act authorized by the
legislature, while in this case the injury does not proceed di-
rectiy from the act authorized, but from a subsequent act of the
defendants, intended to protect them in the enjoyment of the
privilege granted. Supposing, then, the act of the defendants
in this case, to have been expressly authorized by their charter,
and no provision made to indemnify them, the principles of the
case cited would, if adopted, be conclusive in support of the
claim for indemnily at common law.
The same principles seem to be recognized by Chancellor
Kent, in the case of Oardner v. The ViUage of Newbtirgh^ 2
Johns. Ch. 161 [7 Am. Dec. 526]. In that case, the legislature
had authorized tiie village to supply themselves vrith water from
a stream running through the plaintiff's farm, by which the
plaintiff claimed he should be much incommoded; and an in-
junction was granted. The chancellor admits the power of the
June, 1841.] Hookeb v. N. H. & N. Co. 485
legislature; but to render it valid, he says a fair compensation
XQUst, in all cases, be previously made to the individual affected,
under some equitable assessment to be provided by law. This
is a necessary qualification accompanying the exercise of legis-
lative power, in taking private property for public use. The
limitation is admitted by the soundest authorities, and is
adopted by all temperate and civilized governments, from a
deep and universal sense of its justice. The learned judge cites
<3rotius and other eminent authorities to show, that where the
Tight of eminent domain exists, unfettered by written constitu-
tions, it is a clear principle of natural equity, that when private
property is taken for public use, the individual whose property
is thus sacrificed, must be indemnified. In that case, he insists,
that the legislature could not have intended to interfere with
private rights; and there was no reason why the rights of the*'
plaintiff should not be protected: See also Bonaparte v. The
Camden and Amboy Railroad Company, 1 Bald. 229. And even in
Ungland, where there are no such checks as we have upon legis-
lative discretion, so great is the regard for private properly, that
in theory at least, the law will not sanction the least viola-
tion of it. All that the legislature will do, is to compel the
owner to alienate his possession for a reasonable price; and
«ven this is an exertion of power, which the legislature indulges
with caution, and which nothing but legislative authority can
perform: 1 Bl. Com. 139.
In a more recent case in Massachusetts, on a bill for an in-
junction, the defendants pleaded that they had constructed the
road and bridge precisely in the manner and in the direction
prescribed by the act of incorporation, and had done nothing
not authorized by that act. The court say, that the corpora-
tion, in the absence of positive enactment, are bound to make
suitable bridges, culverts, etc., and to keep them in suitable and
sufficient repair, so as to cany off the water effectually. This,
is implied, because it can not be presiuned the legislature
would grant authority to enter upon and take private land for
public use, on other terms. The extent and limits of the duties
and powers, in the absence of positive enactment, must be de-
termined by what is reasonable in each case. If, after all, there
should happen to be private property so situated that some
damage must be done to it, which could not be obviated, by
reasonable precautions, inasmuch as it is expressly authorized
by the legislature, in the exercise of the right of eminent do-
main, such proprietor must be left to seek his compensation
486 Hooker v. N. H. & N, C!o. [Co:
in the mode prescribed by the legislature: Bawe ▼. The Ortmiie
Bridge Corporation, 21 Pick. 844, 348. If we adopt the princi-
ples of these cases, and suppose, as for the purposes of this case
we do, that no provision is made, by the charter, for the assess-
ment of damages by the commissioners, we think that this action
must be sustained. It is not to be intended from anything in
this charter, that the general assembly meant to give power <4o
thia company to take away or essentially impair the rights of
other persons, for which they had made no provision.
It is claimed, however, that the case of HoUisier t. The Union
Company, 9 Conn. 436 [25 Am. Dec. 86], decides this case for
the defendants; and the judge at the circuit yielded to thai
opinion. A majority of the court, however, think otherwise
There a company was authorized to remove obstructions in Oon*
necticut river. In doing this, the current was somewhat
straightened and made more rapid; and the plaintiff claimed,
that his land was in consequence worn away. And the court
held, that this being a public navigable stream belonging to
the sovereign power, that power had good right to improve its
navigation, in the manner done by the defendants; and that
when the lands on the banks were granted, they were-subject to
that condition; and so the owners of these banks j and not the
public, were bound to protect them against the damage which
might arise from such improvements. This is the ground upon
which that case rests. Here, the plaintiffs lands were not npon
a great public stream, and are no more subject to be taken for
cauals without compensation than for turnpike roads. To sup-
pose that they were taken upon any such condition, as if a
navigable stream was running through them, is to take for
granted the point in dispute. Nor was the damage done, in this
instance, the natural consequence of making the canal. It was an
act done voluntarily and deliberately, by the defendants, though
not maliciously, to protect their own property, at the expense of
the plaintiff's. In support of the opinion in that case, the
judge cites an English case as analogous. That was an action
against persons acting under the direction of commissioners
appointed by act of parliament for so raising the highway that
the plaintiffs could not get into an arched way through which they
used to carry their goods to their warehouse, and had to unload
them in the street. It was proved, that the commissioners had
not exceeded their jurisdiction; that what was done was neces-
sary and proper to make the street safe for carriages; and the
defendants were held justified: The Chuemor and Company of
Jtine, 1841.] Hooker u N. H. & N. Co. 487
(he BriHsh Cast Plate Manrifacturers v. Meredith et al., 4 T. B.
794. The judge further goes on to show that the claim made
bj the plaintiff in that case» was for conse^^ueuces so remote as
would lead to endless litigation, and prevent all improvement.
He then adds: '* The defendants have not directly invaded the
properly of the plaintiff. They have not taken it without just
compensation; but have acted under authoriiy of the legislature,
to which appertains the power of regulating a public navigable
river, and produce a remote and consequential injury to the
plaintiffs land.'' In the present case, the injuiy, though con-
sequential, can not be considered as remote. It flowed directly
from the act of the defendants in throwing their surplus water
upon the plaintiffs land, and thus depriving him of the use of
it; and they claim to take'dt.yrijhout any just compensation
therefor.
We think, therefore, that there is nothing in the case of
EoUister v. The Union Company^ which ought to disturb the
'foundation upon which the plaintiffs case rests; and therefore,
direct that a new trial be had.
In this opinion Ohubgh and Stqbbs, JJ., concurred.
New trial granted.
Sherman, J., before whqm the oaae was tried below, diBsented. After a re-
view of the caeee, he smnB up his condiisionB as follows: " The three following
propositions seem well settled: 1. That the only limitation at common
law, or by any constitation, to the legislative power over individual property,
is, that what is taken most' be paid for. ^ 2. That the law which applies
where injniy to others results from acts done Innooently, by individuals, in
relation to their private property or other personal concerns, is never adopted
in legaid to those acts which are authorized for public purposes by the su-
preme power of the state. 3. That where in the execution or use of a public
work, authorised by the legislature, the limits prescribed by law are duly and
prudently observed, no action wiU lie for a consequential injury to the prop-
erty of another. " He considered this view of the law to be supported by the
case of HoUider v. Union 0(mpany, 9 Conn. 436; S. C„ 25 Am. Dec. 36, in
particular. Waite, J., concurred in this opinion.
DaICAGIS fob PfiOPBETT InJUBED BT ▲ PUBLIO USB, WHEN RbOOVSB-
▲BLK. — ^Tlus case came again before the court, 15 Conn. 312, whereupon the
doctrine of the principal case was reiterated. In Dinslow v. New Haven S
N. Co., 16 Id. 103, the question was, whether the corporation defendant, the
same defendant as in the principal case, was responsible for the diversion of
the waters of a stream, upon which was plaintifrs factory. The defense was,
that nothing had been done which was not authorized by defendant's charter,
and by the sanction of the commissioners under whose approval they acted.
The court held the case not distinguishable from the principal case, inasmuch
as in each the injury complained of was the direct result of the works of de-
fendants; the diversion being occasioned by a dam erected by defendant. The
488 Mills v. Camp. [Godb.
oonrt therefore allowed » reooveiy in an action on the case. See also BiUoU
T. Faiir HaoenA W. R. R. Co., 32 Id. 585.
Bat where the nee of a railroad, accidentally and without n^^eot iipaa the
part of thoflo operating it, oocaBiona injory, there can be no reoovery. Thus
there can be no. reooTery for a loss by a fire originated by a apark fiom tlie
smoke-etack of defendant's locomotive, there being no pretense of neglijgwnoft;
Burroughs v. HouatUonic Railroad Company, 15 Conn. 131, diwtingniahJTig the
principal case. Nor can there be any recovery for the remote and incidental
injnry that may be occasioned to property bordering on a highway, by a
change in its grade: Shinner ▼. Hartford Bridge Co,, 29 Id. 537> citing the prin-
dpaloBse. BeeUkewiae PhUaddphia d. T. B. R, Co., ante, 702. InOfoadspe&d
T. JBoM Haddam Bank, 22 Id. 539, the principal case was oited to the point
that oorporatioiis mi^t be sued for their torts.
Mills v. Gamp.
(U OoanonouT, ai9.]
Bulb BaQTrmnro Tbahsfeb of Possession and aotoal removal of per-
sonal property in order to render a sale or attachment valid as against
creditors, is a mle of policy, and not of evidence; and therefore proof of
the honesty of the transaction will not be sufficient to remove the Idffl
effect of a failore to remove property attached.
Fazlubs to Removx Pbbsonal Pbopebtt Attached is Ezgusxd whece
the removal of the property can not be effected withont great injniy or
expense, or where the removal woold canse material damage.
Ck>iiTiKTTXD PossBSSZON IS NiBOEHSAKY to the validity of an attachment.
OoiiTDfUAL Pbssbnob OF THB ATTACHING Offigbk at the plaoc where the
property attached lies is not necessary. There will be a constraetive
possession safficient to maintain the attachment lien, if the officer do not
snfier the debtor to regain actoal posBession or to exenrise any aots of
ownership over the property.
Tbespabb. Li October, 1838, plaintiff, as deputy ahariff, at-
tached a quantity of iron ore, about five hundred tons, the
property of the Ousatonic iron compay, in behalf of certain
creditors of the company. The debts upon which the writs of
attachment levied by plaintiff issued, were justly due, and
judgments were thereafter obtained upon them. At the time
the ore was attached it lay in an open field belonging to the
Ousatonic company. After the attachment plaintiff informed
the officers of the company and their workmen at their adjoining
furnace of it, whereupon the operations of the company were dis-
continued. The ore was worth about three dollars and twenty-
five cents a ton; its removal would have cost from twelve and
a half to twenty-five cents a ton, and would have rendered nec-
essary the washing of a large portion of the ore at an expense
of ten to twenty cents a ton; besides, there would be a wastage
June, 1841.] Mills v. Camp. 489
-of from ten to fifteen tons. Plaintiff did not remove the prop-
-ertjy nor did he either remain himself or leave any one else in
•4aharge of the property. In November, 1838, Camp attached
the same iron ore, took possession of it, and caused its removal
to another piece of ground near by, but not belonging to the
-company. The debt upon which Camp attached was justly
•doe. This removal of the property was the occasion of this ac-
tion. The chaige of the court below was as to the point of the
necessity of the removal of property attached, to the same effect
sa is the opinion of the court. The jury was also instructed
that to preserve an attachment lien the attaching officer must
retain *' actual or constructive possession" of the property at-
tached; and that it was not necessary that either the officer or
bis agent should remain constantly with the property attached.
The other points in the charge appear from the opinion of the
•oourt. The plaintiff had verdict.
O. 8, Seymour, in support of the motion for a new trial.
W, W. EUswcrih and L. Church, contra.
Shbbkan, J. It is admitted in this case, that the debts,
-for which the attachments were levied, were justly due to
the respective creditors; and the principal objection made to
the plaintiff's right to recover, is grounded on the fact, that the
-property was not removed, by the plaintiff, but left, where it
was taken, on land in possession of the debtors.
That a transfer of possession and actual removal of personal
property is necessary in order to render a sale or attachment
valid as against creditors, is well established, in this state, as a
.general rule of law. Its object is, to prevent fraud. The par^
tienlar fraud, against which the rule is intended to guard, is
that which seeks to favor the vendor or debtor, by shielding his
property, for his benefit, from the claims of creditors. It is not
A rule of evidence only, but of policy. As matter of evidence,
the continued possession of a vendor or debtor, who is in em-
barrassed circumstances, yields a presumption that the process
<3ir sale is rather colorable than real; for, in general, no reason
•can be given why possession should not be taken, except that
he should be indulged with the disposition or use of the prop-
•erty to the injury of others. But proof of the payment of a full
isonsideration, or of the justice of the debt for which property is
taken on legal process, accompanied with the highest evidence
of the honesty of the transaction, will not, in general, be suffi-
'Cient to repel the legal effect of neglecting an actual removal of
490 Mills v. Camp. [Ckmiu
the properly. The means of proving a bona Jide debfc, or the
pajment of an adequate consideratiozi, are so &r -within the
power of the parties, where no debt or consideration actnally
exists; the difficulty of repelling that testimony, by the creditor,
is so insurmountable; and the temptation, on the part of the
owner of the property, and his friends, to protect him from the
pains of penury, is of such controlling influence, that, as matter
of policy, the law has removed the temptation to fraud, by mak-
ing void, as against creditors, sales of personal property and
seizures by legal process, unless accompanied by an actual re-
moval of the property. If, when sold or taken by legal process,
it is actually removed from the possession of the vendor or
debtor, its use or enjoyment by him is made impossible; and
attempts to make feigned sales or seizures for that purpose, are
rendered abortive. This rule of municipal law is adopted, with
more or less severity, in most places where the common law pre-
vails. In this state, it has been justly considered as vnse and
salutary, and is rigidly applied, except in certain cases where
its application would be impossible or injurious; Sivi/i v.
Thompaon, 9 Oonn. 63 [21 Am. Dec. 718]; Patten v. Smith,
5 Id. 196. Thus in the familiar instance of the sale of a ship
at sea, a delivery can not be made at the time of sale, but it
is sufficient, if made as soon as may be after the return of the
vessel. And when property attached can not be remoTed vritfa-
out great injury, as hides in a vat, or paper in a mill, at such
a period of the process of xkianufacture, that a removal would
cause material damage or destruction, it is dispensed with.
And, for the same reason, if the removal of the ore, in the case
under consideration, would be attended with great waste and
expense, a just regard to the rights of all parties in interest,
wotdd reqiiire that it should be left on the place where taken.
The officer took possession, by the levy of his attachment. He
might retain that possession, if there was no interference of the
debtor, while the property lay on the debtor's open field. His
continual presence, by himself or an agent, was not necessary.
It was sufficient, if he used due vigilance to prevent its going
out of his control. That possession be taken and held by
the officer, is, in all cases, indispensable, and that when this is
relinquished, there is a termination of the lien, is consistent
with the charge in this case.
On this point, we approve the opinion given in the case of
Taintor v. Williams, 7 Conn. 271. Nor is the charge at variance
with the opinion of this court in EbUister v. Ooodale, 8 Id. 832
June, 1841.] Mills u Camp. 491
[21 Am. Dec. 674]. Although in that caae the chief justice says,
"that the oonstructiTe possession, as between vendor and ven-
dee, would be sufficient; but an attachment can only be made
by taking actual possession;" and in this, the charge is, that the
officer '' must retain either the actual or constructiye posses-
sion;" yet it is very apparent, that this language is used, in the
two cases, in a different sense. In the former, it was applied,
where no actual possession was ever taken. An officer had the
key to the door of a carriage-house; and, on his opening it, an-
other officer stepped in before him, and attached the carriage.
The chief justice remarks, that the first officer, who had not
taken the furtide at all, might have such a constructiye posses-
sion as would be sufficient, if accompanied with a contract of
sale from the owner, but did not amount to an attachment. But
had the firstoffioer, in that case as in this, previously seized the
property, it would not have been contended, that while he was
at the door of the carriage-house, the other could have stepped
in and taken it from him. In this case, the charge requires, that
there should be an actual seizure of the property, and taking it
into the possession of the officer; and the continuance of this
possession, while he is absent, is denominated ''constructive."'
Such an attachment would not be liable to the objection, which
was sanctioned, by the court, in the case cited. The import of
the word is sufficiently defined, by the judge, when he says, that
if the officer ** do not suffer the debtor to regain actual posses-
sion, or exercise any acts of ownership over it, he may be con-
sidered as continuing in the constructive possession of the prop
erty;" and the jury are required to find, that the officer '' nevek
suffered it to go again into the possession of the debtor." The
juiy, under these directions, must have found such a continued
possession of the plaintiff, as was necessary to the legal validity
of the attachment.
If it was unnecessary for the jury to find the additional drcum-
stances noticed by the judge — as that the officer caused the at-
tachment to be generally and publicly known in the neighbor-
hood; that the ore could not be taken away without his knowl-
edge, etc. — ^the presentment of them in the charge, did but
multiply the chances of success on the part of the defendants,
and therefore, furnishes them with no just ground of complaint.
Neither these, nor the testimony that the defendants knew of
the attachment of the plaintiffs, had any tendency to corrobo-
rate the proof of the plaintiff's continued possession, or to estab-
lish any fact material to his recovery. We do not perceive that
492 Phenix Bank of New York v. Cubtis. [ Conn.
those circumstances, in whatever light they are viewed, can fur-
nish any reasonable ground for a new trial.
It is contended by the defendants, that as the plaintiff made
no demand upon the executions for the ore which the defend-
ants had taken from him, the lien by the attachments was lost,
and the plaintiff divested of his right to the property. Bat the
plaintiff's right of action accrued, and this suit was institatod,
before judgment was rendered. The defendants took the prop*
eriy against the express prohibition of the plaintiff and with fuU
knowledge of his rights. They continued to hold it wrongfully,
after judgment was rendered; and still deny that he had any
right to make demand of them. As between the plaintiff and
themselves, the obligation lay on them to return the properly,
not on him to demand it.
For these reasons we advise the superior court that a new
trial ought not to be granted.
In this opinion the other judges concurred.
New trial not to be granted.
TBx DOOKBUfS or THS FBiNdFAL CASK M to the liability to aa attachiqg
officer of one who removes the property attached, is Ibnited in Scu^fwrd y. P<md,
37 Conn. 596, by the qualification that sach liability will only ezist if the at-
taching officer ia himaelf liable over to some third person for the property or
its yalne. Thus he can not recover for auch a removal if the attachment lien
lias expired prior to the institation of his suit, owing to the delay of the
judgment debtor in suing ont execution on his judgment.
Thb Rule Rbquibino GoimNuu> Changs or Possebsiok to give validity
to an attachment or sale of porsomkl property, has been frequently recognized
«ince in this state; the court also holds that the rule is one, not of evidence, but
•of policy: Norton Y. DoolUOe, S2Gonn. 410; CoUr, Ives, 31 Id. 36; XSrtUutdY.
Snow, 20 Id. 28; Onmeh v. Camrier, 16 Id. 510; Ayret v. Jinsted, 15 Id. 513;
but personal property may be lawfully attached without removal, where the
•officer takes and retains the actual and exclusive possession: Pond v. SHd-
more, 40 Id. 222.
PossBSSioK IS Suraiomrr to Presbbyi an attachment lien, if the offioar
i«tain control over the property attached: Hemmenwap v. Wheeier, 95 Abl
Dec. 411, and note.
Phenix Bank op New York v. CuBam.
[14 CtosMaoTiouT, 437.]
■QxNSBAL Issue in an Action Bbouoht bt a Cobporation admits the
capacity of the plaintiff to sue.
Oknxral Issue to an Action by a Cobpobatiok does not admit the
capacity of the corporation to make the contract upon which it sues; and
therefore unless the charter of the corporation is one of which the court
will take judicial notice, it must be exhibited to show the powers of the
corporation.
July, 1841.] Phenix Bakk of New York v. Curtis. 49a
A88UMHU.T against the indorser of a promissoiy note. The
geneiBl issae was pleaded. Upon the closing argument on the
part of the defense, counsel asked the court to instruct the jury
that plaintiff could not recoyer unless it had made proof that it
was a corporation endowed with power to sue as alleged in the
declaration. No such proof had been made on the trial. Ohurch,
J., before whom the case was tried, refused to so instruct the-
jury, who found for plaintiff. Defendant moved for a new triaL
C7. F. Oleavdand and Hovey, in behalf of the motion.
Strong and G. Perkms, contra.
WiLLiAics, 0. J. The plaintiff claims, that under the gen-^
eial issue, the defendant could not take the objection, that the-
existence of the plaintifb as a corporation was not proved;
and if it could be, it was here taken too late in the trial.
As to the last point. If the plaintiffs are bound to prove their
corporate powers, it is not easy to see why the defendant
might not, at any time in the course of the trial, show to the
court and jury, that they had failed to do this. Why may ho
not wait and see whether the plaintiffs have produced all the
proof necessary to make out their case, and if not, call upon the
court to say, that for want of such proof, they can not recover t
An omission by the counsel who first addressed the jury for tho
defendant, to press the point, could no more prove a waiver of
it, than if he had omitted to notice that the indorsement was
not proved. If through mistake or accident, or because it was
supposed to be conceded, the plaintiffs omitted to produce tho
evidence they possessed, the court would probably have per-
mitted it to be done at a late hour, to prevent injustice. But
after the plaintiffs have adduced all the evidence they have, and
yet have omitted a point which is material, we know no rule of
law or of the court, which will prevent the defendant's counsel
from pointing out such omission to the jury. Indeed, upon the
general issue, this is the usual mode of defense. By this delay,
therefore, the defendant is not deprived of the benefit of his ob-
jection.
The great question however, is, whether the defendant, by his
plea of the general issue, is not precluded from making the ob-
jection. Under this, two questions may arise: 1. Does the de*
f endant, by this plea, admit the capacity of the plaintiffs to sue f
2. If he does, does he also admit the power of the plaintiffs to
make the contract upon which they sue ?
1. It was held veiy early, in the state of ^lassachusetts, that
494 Phenix Bank of New York v. Cubtis. [Goim.
under ihis plea the defendant could not deny the existence
of the corporation: Monumoi Oreat Beach t. Sogers^ 1 Mass.
159; Kennebeck Purchase v. CaU^ Id. 483, 485. And it is there
a well-settled priaciple, that pleading over to the merits admits
the capacily of the plaintiff: SuJUoii First Parish v. Cole^ 3 Pick.
232, 245. And the courts of the state of Maine have pursued
the same course: Penobscot Boom CorporaHon t. Lavidbn et al.,
4 Shep. 224 [38 Am. Dec. 656]. In Vermont similar decisions
have been made: BarUc of Manchester v. AUen^ 11 Yt. 302.
In New Hampshire, it is said, that the general issue is a waiter
of all exceptions to the persons of the plaintiff: School Distrid
V. BlaisdeUy 6 N. H. 197; Concord v. M)Intire, Id. 527. In
Alabama, it has been held, that by pleading to the merits, the
defendant admits the capacity of the plaintiffs to sue: Prime v.
Oarret, Ala. (N. S.) 24.' In Ohio too, it has been decided, that
the general issue admits the capacily of the plaintiffs to sue:
Methodist Episcopal Church of Cincinnati t. Wood, 6 Ham. 286.
The supreme court of the United States have also repeatedly
decided, that by pleading to the merits, the defendant neces-
sarily admitted the capacity of the plaintiffs to sue: Conrad t.
The AUantio Insurance Company, 1 Pet. 387, 450; Society for the
Propagation of the Oospel v. Pawlet, 4 Pet. 480, 501; Yeaton t.
lAnn, 6 Pet. 224, 231. In the state of New York, it is said,
howeyer, that under the general issue the plaintiffs must show,
that they had a legal existence and a capacity to sue: Bank of
TMca V. SmaOey, 2 Cow. 780 [14 Am. Dec. 526]. But highly
as we respect the courts of that state, in Ti^w of the authorities
cited, and in analogy to decisions in case of administratorB,
whose capacity to sue can not be questioned under this jilea
(11 Mass. 314,' 3 Day, 303*}, we hold, that the capacity of the
plaintiffs to sue can not be questioned in this stage of the plead-
ings.
2. But if the right of the plaintiffis to sue is admitted, another
question arises, whether they must not prove, by their act of in-
corporation, or in some other way, what rights and powers are
vested in them, not to prove that they may sue, but to prove
that they could enter into the contract upon which they sued.
It is to be recollected, that the plaintiffs claim to be incorporated
in another state, and thus stand upon the same ground as
foreign corporations. No notice, therefore, need be taken of
cases where it has been held, that no proof was necessaiy, be-
cause the acts were of a public nature and must be noticed by
1. Prim T. DanU, 2 Al«. 34. 3 Langdon r. PotUr. 8. OkampUn ▼. nOcy.
July, 1841.] Phenes: Bank op New Toek v. Curtis. 495
the court; as in WhiUington v. Ihrrners Bank, 5 Bar. & J. 489;
Dutchess Cotton Manufactory v. Davis, 14 Johns. 245 [7 Am.
Dec. 459]; 10 Mass. 92.^ In the state of New Tork, this ques-
tibn has been repeatedly decided, so that the law there is set-
tled beyond controyerefy; and although the plaintifb need not
set out their act of incorporation, yet, under the general issue,
ihey must produce it: JachKn t. Plumbe, 8 Johns. 878; Bank of
TMca v. Smattey, 2 Oow. 778 [14 Am. Dec. 526]; Bank of
AvJtnim Y. Weed et aL, 19 Johns. 800, 808; BiU v. The Fourth
Oreat Western TUmpike Bead, 14 Id. 416; Bank of MoMgan v.
Waiiams, 6 Wend. 482, 488; S. G. in error, 7 Wend. 541; Dmted
States Bank y. Steams, 15 Id. 314.
The same is held as law in Virginia; and while the right of a
foreign corporation to sue is admitted, they hold, that they
need not ayer the incorporation in the declaration, but it may
be put in issue, by the defendant, or the question mifty be raised
upon the general issue: Bees y. Oonooocheague Bank, 5 Band.
826 [16 Am. Dec. 765]; Taylor y. Bank of Alexandria, 4 Leigh,
475.' In Maryland, it is also decided, that a corporation of an-
other state must, under the general issue, proYc its coporate
powers: Agneto y. Bank of Oetiysbvrg, 2 Har. k G. 479. In
Miagiamppi, they Say, a corporation assume to sue in an artificial
<2haEacter: it is necessary that they sustain their allegations by
proof: Carmichael y. Trustees of School Lands, 8 How. 98. A
similar doctrine is said to be held in Illinois: Hargrafoe et al. y.
Bank of Blinois, 1 Breese, 84, 86. In New Hampshire, it is
said by Woodbury, J., that where the plaintifEs sue as a corpora-
tion, and the general issue is pleaded, they may still be re-
quired to proYC their incorporation: Society for the Propagation
of the Oospet y. Young, 2 N. H. 810. And if this general doc-
trine is impaired, by after decisions, still it is held as it respects
foreign corporations: School District y. BlaisdeU, 6 N. H. 197.
In North Carolina, it has also been held, that on this issue, the
plaintiffs must show themselYCS a corporation: 1 Dcy. & Bat. 809.'
And in Penn^lyania, the distinction between the capacity to
sue and the right to contract is recognized: Wo^ y. Cfoddard,
9 Watts, 555.
Such is the course of authorities in this country. It is said,
howeYer, that a different decision has been made in Kentucky.
An expression is also used, by Story, J., in one of the opinions
before cited, which requires to be noticed. After obserYing,
that the point raised, is not so much whether the plaintiffs are
LtMrjf O; T. Watmm, 2. 6 Lelgli. 8. flWiipft* O: t. McOantm,
496 Phenix Bank of New York v. Cubtis. [Ckum.
entitled to sue generally as a eorpoxation, as whether they have
shown a right to hold lands, he adds, that the general issue ad-
mits not only the competency of the plaintiffs to sae, but to sue
in the particular action which they bring; and then goes on to
show, that in the case before the court, there was abundant evi-
dence to establish the right of the oorix>ration to hold the land
in controversy: Society for (he Propagation of the Oospd v. Pouh
let, 4 Pet. 501, 603. If, as we suppose, the judge means to say,
that the plea admits that the plaintiffs can sustain an action of
ejectment, there is no intimation that therefore they are not
bound to show their corporate powers to hold the land in ques-
tion. We have no idea that the supreme court of the United
States intended to dispose of the question before us, in this sum-
mary way — a question, too, which, it was well known, had been
solemnly settied differentiy, by a court of which one of ttie
supreme court of the United States then constituted a part.
Besides, the judge goes on to point out the several acts shown,
ftdmitting the existence of the corporation and its capacity to
kake the very land in controversy: 4 Pet. 602.
Believing, then, the American cases to be nearly uniform
upon this point, let us look at the English authorities. Norris v.
Stops, Hob. 210, was a suit for a penalty upon a by-law. The
court said, the plaintifffl need not show how the corporation were
incorix>rated, t. e., in his declaration; for the name argfues a
corporation, and the plea nil debet, or the like, requires proof
of it. The case of The Mayor and Burgesses of Lynne Begis, 10
Co. 120, was an action of debt upon a bond, and the plea was
non est f actum. The defense rested entirely upon some trifling
variation between the name by which the plaintifib were de-
scribed in the bond, and the name in the act of incorporation.
If the claim of the plaintiffs here is correct, we see not why the
plaintiffs there should have exhibited their acts of incorporation
at all, or if they did, why the questions made should have arisen,
if the plea of the defendant was a waiver of any such proof.
In a later case, where the suit was brought by a foreign corpora-
tion, it was claimed, that they could not sustain a suit in Eng-
land, and if they could, their name must be set forth, and how
constituted or privileged. The last claim was met, by eminent
counsel, by saying, that they need not show how they were in-
corporated, but upon the general issue pleaded, they must prove
they were a corix>ration: Henriques et al. v. Dutch West India
Company, 2 Ld. Baym. 1632, 1636. And a late reporter tells
us, in a note, that Lord King, who tried that cause, declared.
July, 1841.] Pmsmx Bank of New York v. CJxtbtis. 497
that he held the company bound to prove, by proper evidence,
that they were an authorized company, in their own country.
And in the note in the index to the case in Ld. Baym., it is
said, if a pretended corporation sue, and they are no oorix>ra-
tion, the defendant may have the benefit of it, upon the general
issue. And in a modem case, a copy of a charter of the king
of Spain was introduced to prove the corporate rights of the
plaintifb; and in his marginal note, the reporter says, a corpo-
ration in a foreign country may sue, as such, in the courts of
this country; but they must prove they are incorporated in that
country: The National Bank of St, CharUs v. De Bemales^ 1 Car.
Sl p. 669. And if these are to be considered as dicta, or admis-
sions of counsel, or loose notes, they seem at least to show a
uniform current of opinion from the days of Lord Hobart to
the present time, upon this question in England.
And why should it be otherwise ? The plaintiffs here allege,
that they are incorporated, by the laws of another state or
country; and that the defendant contracted with them, in that
character. The defendant, by his plea, calls upon the plaintifb
to prove the facts, and all the material facts, in their declara-
tion. It might seem at first view, says Ohitiy, as if the defend-
ant, by his plea, only denied his having made the promise, as
the definition of a contract is an agreement, founded on a suffi-
cient and legal consideration, to do some legal act, or to omit
the doing of an act, the performance of which the law does not
enjoin. The above plea, by denying the contract, in effect puts
in issue every part of the above definition, viz., the agreement,
etc. : 1 Chit. PI. 469. The question, says another author, on
such issue, is, whether the defendant is indebted to the plaintiff;
or whether he is liable to the plaintiff, as he, in his declaration,
has alleged: Stev. PI. 508.
Here the plaintiffs claim, that the defendant entered into a
contract with them, which he has violated. It would seem then,
of course, that they must prove the contract. The exhibition
and proof of the note and indorsement, would, in ordinary
cases, be sufficient; as in case of a natural person, there would
be sufficient prima fade evidence of a power to contract. But
is it so in case of a corporation ? We have decided, that it has
no natural rights, and none but such as its charter confers; that
it is the mere creature of the charter: New York Firemen In-
mirance Company v. Ely et al., 5 Conn. 556 [13 Am. Dec. 100].
How, then, can this court know what powers or privileges the
charter of this company confers? When the defendant, by
Am. Dsa Vol. XIXVI-^
498 Phenix Bank of New York v, Cubtis. [Gona
his plea, denies the contract, it would seem, that he denies eveir
part of it; and when we can not recognize the plaintiffe as a
natural person, thej haying declared under an act of inoorpora-
tion; when we can not recognize them as a corporation known
to our law, they having declared upon an incorporation bj a
foreign legislature; what is there by which we can see or know
that this contract was made with a person who had authority to
make it ? We proceed upon the ground that the defendant has
admitted the plaintiffs' right to sue; yet unless he has also ad-
mitted their authority to make contracts, and all contracts, we
think, that by all the rules of evidence the plaintiffs must proTe
it. The court certainly can not know what powers a foreign
legislature have granted to a company of its citizens, except it
be proved, as all foreign laws must be. Can it be said, that the
name argues the power, as it was said by Lord Hobart, the
name argues a corporation? The name, indeed, argues a bank;
but unless it is a necessary incident of a bank, to take notes, it
must be very slight evidence. Is it said, that the defendant, by
making a contract with the plaintiffs, by this name, has admit-
ted they were a corporation ? The defendant might have made
this contract with individuals who assumed this name and style,
as well whether they were a corporation or not: The Vtica Bank
V. Stevens,^ 15 Wend. 316. And that the defendant is not
estopped by this, is well settled in New York: WeUand Ccmal
Company v. Hathaway, 8 Wend. 480 [24 Am. Dec. 51]; WUliam»
V. The Bank of Michigan, 7 Id. 541. And in the cases which
have come before this court of foreign corporations, the plaint-
iffs have exhibited their charters as evidence of their powers:
New York Firemen Insurance Company v. Ely, 5 Conn. 550-574
[13 Am. Dec. 100]; PkUaddphia Loan Company v. Ibwner, 13
Id. 249.
We regret to send back a case where we have no reason to
doubt that the evidence existed, but was omitted to be presented.
We regret too, that we had not the benefit of consulting with
the judge, who tried the cause in the court below, before we
came to this result. But, upon the best consideration we can
give to the case, we think a new trial must be granted.
In this opinion the other judges concurred, except Chuboh, J.»
who was absent, and Waite, J., who declined giving any opin«
ion.
New trial to be granted.
1. UniUd SUtUt Batdc ▼. Steams.
June, 1842.] WHiTiKa v. State. i99
GSNXBAL IB8!7X PLSADKD TO AX AonoV BT A OOBPORATXON dOes not ex-
«aae it from proving its incorporation: Bank qf Utiea v. SmoBey, 14 Am. Dec
«26; Verium Society v. HOla, 16 Id. 429; WeUand Canal Co. y. Haihawoy, 24
Id. 61; bat see contra, PenoAwof ^oom Cor7>. v. Lamton, 33 Id. 666, and Le-
idffk Bridge Co. v. Lehigh C. A N, Co., 26 Id. 511.
Whiting v. SrAm
[14 OoHmcxiouT, 487.]
bvoBMATiON lOR A Statutobt Offbnbx is in general safflcieatly dafinite
and oartain, if in the description of the offenae it follow the woids of
thestatnte.
Idbc. — ^In ax Ixvormation fob thb Salb of SriBiTfrouB Lzquobs, it ia
not neoenaiy to state the amonnt, kind, or value of the liquor sold,
unless the jurisdiotion, or the nature or degree of the puniibment, de-
pends upon a oonaideration of these matters.
LiTOBiCATioN, in the county court, for the sale of spiritnoufl
liquors. The information charged ''that said Adna Whiting
lieretofore, to wit, on, etc., at said Farmington, sell spirituous
liquors to one Edward S. Bussell, without liberty granted by
«aid town of Farmington, against the peace, and contrary to the
statute in such case provided." The defendant was convicted,
and moved in arrest of judgment for the insufficiency of the in-
formation. The motion was overruled, whereupon defendant
sued out a writ of error in the superior court. The case was
reserved for the opinion of this court.
Ibucey and Chapman^ for the plaintiff.
T, C. PerkvMt for the state.
SroBBS, J. The questions in this case arise upon exceptions
taken to the sufficiency of the information, which is founded
on the act of 1839, prescribing that no person or persons shall
"sell, directly or indirectly, any wines or spirituous liquors
in any town in this state, without liberty granted by the town,"
as is provided in said act under the penalty therein men-
tioned. The defendant claims that the information is defective,
first, because the facts alleged in it as constituting the charge
are stated too generally, and not with that certainty or particu-
larity which the law requires; for that neither the kind nor
quantity of liquor sold by the defendant, is set forth. If this
were an information for an offense at common law, it would
admit of a serious doubt whether the charge is set forth with
that certainty which is required in such cases. It would cer-
tainly be difficult to uphold it, by the precedents. But it
800 WmnNa u State. [Cohil
is dear from an inspection of those preoedentSy that indict-
ments and informations for offenses at common law are framed
with more particolariiy, and that the facts are stated in them
with more minuteness, than in those for mere statatoiy offenses;
and especially for statute offenses which amount only to mis-
demeanors, where less strictness itf tolerated than for felonies.
These precedents furnish illustrations of the rule as to the cer-
tainly which is requisite, and are to be considered as guides in
similar and analogous cases. For, although the reasons upon
which the strictness and nicely with which indictments at com-
mon law are framed (and it must be admitted that an extzeme
of refinement has sometimes prevailed), are not always yeiy ob-
tious, or may have ceased to exist; and it may be, as indeed it
has been, matter of regret that so great particularity has been
required; yet, as they have been so long and authoritatiyely es-
tablished, it would not probably be considered safe or proper
for courts now to relax from this strictness. There has, how-
ever, been manifested by the courts more recently a strong dis-
position not only not to extend, but to dispense with a minute-
ness, for which no sensible reason can be given, and which ap-
pears to be unnecessaiy to a fair administration of justice.
The present is an information for an offense created by stat-
ute. In regard to such offenses it is a well-setUed general mk
that it is sufficient to describe them in the words of the statute;
The Uniied States v. Gooding, 12 Wheat. 460; The UnUed States
V. MUs, 7 Pet. 138, 142. To this rule there are, indeed, some
exceptions, and in some instances greater particularity is re-
quired, from the obvious intention of the legislature, or the
known principles of law. It is for the defendant to show that
the present case falls within those exceptions.
In this we think that he has not succeeded. He has relied
on those cases at common law where the ancient strictness, as
applicable to those cases, is required, and claims that this does
not fall within any of those classes of cases which form an ex-
ception to that sixictness; whereas, this being an information
for a statutory offense, where the general rule is, that it may be
described in the words of the statute, it is for him to show, that
it falls within those cases, or the principle of them, where
greater particularity is required. In this case, the language of
the statute on which the information is founded, is pursued.
The charge, therefore, is as particular as the statute; and we can
see no good reason why a greater particularity should be re-
quired. The act neither specifies the kind, nor the quantity, of
June, 18*2.] Whiting v. State. 501
spiritaous liquors, which must be sold to constitute the o£fense.
rOiere seems to be no more reason why the kind of spirit should
l>e mentioned, than if it was an information, on the same statute,
<OT selling wine, the particular kind should be set forth — ^a
minuteness of description which would hardly be contended for.
Tlie sale of any quantiiy, or of any kind, constitutes the offense;
And this is cognizable by one court only. If the jurisdiction of
ilie court, or the nature or degree of the punishment, depended
on either the kind or quantiiy, the case might be different.
In several of the cases cited "by the defendant, in which it was
lield to be necessary to specify quantity, the reason given was,
that the court might be enabled to fix the punishment: Bex v.
Sparling, 1 Stra. 497. On an indictment, however, for taking
<sazps out of one's pond, where the offender was to be fined at
the discretion of the court, it was held, that the number takenr
need not be stated: Yin. Abr., tit. Indictment, M. 21; Bex v.
Weiioang, 1 Lev. 203.
The conclusion to which we have arrived on this point, accords
with the decisions in other states, on similar statutes, in one of
which this precise objection was overruled: The OommonweaUh
V. OdUn, 23 Pick. 275, 279; The OomrrumweaUh v. Thurlow, 24
Id. 374; The CommonweaUh v. Clapp, 5 Id. 41; Th^e Common-
weaUh v. Hooper, Id. 42; The People v. Adams, 17 Wend. 476.
It is also claimed, that this information is defective, in not stat-
ing the value of the liquor sold. This objection is unsupported
by reason or authority. It is uniformly and explicitly laid down,
that an averment of ihe value is unnecessary, excepting where it
determines the jurisdiction or the punishment: as, for example,
in larceny at common law, where the value of the goods stolen
constitutes it either grand or petit larceny, a felony or a misde-
meanor; or, under our statutes, where it affects the jurisdiction
of the court, as well as the punishment.
The remaining objection to the information, is, that it merely
states a sale by the defendant, without specifying its particular
terms, or the delivery of the thing sold. It is claimed, that it
does not appear, that there has been a violation of the statute;
for that it is not eveiy sale or contract of sale, which consti-
tutes an offense; and it should, therefore, appear to be such a
sale as the statute contemplates. Instances have been put
where a contract may be made in one town for the sale of liquor
which is in another; and it is said, that in the present case, the
liquor sold may have been in another town, or may have been
agreed to be ddivered in another town, than that in which the
502 BiOELOw V. Haetpord Bridge Co. [Conik
offense is alleged to have been committed; and therefore^ that
the statute may not have been violated. Without deciding^
whether, in the cases supposed, the law is violated, we think ,
that the information, in this respect, since it follows the terms
of the statute, is sufficiently precise. It would be inaisting
on an unreasonable particulariiy to require that the whole of
the terms of the contract, and the location of the subject-matter
of it, should be minutely set^ forth. No such particularity ib
observed in any of the precedents in similar cases; it would be
extremely inconvenient in practice; it would require the pleader
to state what it would be very difficult, if not impossible, for
him to ascertain; it would tend to no useful purpose; and it is
a matter which may, more properly, and with entire safety to-
the accused, be left to be determined from the evidence, whether
the facts are such as to bring the sale within the tme wMMLning
of the prohibition contained in the statute: 12 Wheat. 460.
The superior court should, therefore, be advised, tbat there is
no error in the judgment oomplained of.
In this opinion the other judges cononned.
Judgment affirmed.
Ax LnoBiiATioN voB A Statotoet HKDSMiAiraB is not gowmed b^
tlw rnlM that apply to an indiotmest for a oommon law offlbnae; tm reapeeto
the certainty and partioolarity with which it most be fnuned, rnnoh lav
■triotnees is tolerated: Bcurth v. State, 18 Conn. 439; State ▼. Corri(f(m, 24Id
289. In State v. MUler, Id. 527» the objection urged against the complaint
preferred by the grand jnror, npon which a conviction was had of the offianae
of selling spiritnons liquors, was that it did not state the quantity or kind at
spirituous liquors which were sold; but the objection was oTermled upon the
authority, among others, of the principal case. It is also held in Connecticut^
that a complaint by a town grand juror, being a prosecuting officer unknown
to the common law, is therefore not subject to the teohnioal rales applied to
common law modes of prosecution, and that all that is necessary in such a
complaint, is that it shall be reasonably certain and definite in its speoiflca-
tlons of crimes: Rawmm y. State, 19 Id. 297; State v. MiiUr, 24 Id. 521f
State V. Hoknee, 28 Id. 232; all citing the principal case.
iNDicmasNT roR a Statutost Oifensb should follow the words ct tfae-
statnte: ffese t. State, 22 Am. Dec. 787.
BiGELOW V. ELuEtTFOBD BbIDOE GoMPANT ET AL.
[14 OOHSBOnOIIT. 666.]
Bill m Equitt for an Injunction against a Pubuo Nuisanci will not
be entertained unless it shows that the plaintiff will sustain a special
or peculiar damage from it, an injury distinct from that done to the pub>
lie at large.
Jane, 1842.] Biqelow v. Habtford Bridge Co. 603
iH^micnoK WILL NOT BB Obamtbd Qnlen the vioUtion of plAmtiffs righti
which it is aoaght to enjoin is soch as is or will be attended with
actoal and serioos damage. Where the damage that will be done is very
smaU. no injunction will be granted, even though an action at law might
lie.
Cif JDNonoN WILL NOT BX Gbantbd AGAINST AN Injubt which neither ezisti
nor is threatened by defendant, bat which plaintiff apprehends may
be brought about by future acta of the defendant, if those which he
seeks to enjoin are not prevented.
Bill for an injunction. In the month of January^ 1841/ a
causeway existed, beginning at the bridge of the corporation
defendant on the Connecticut river and extending through the
East Hartford meadows. This causeway was erected by the cor-
poration conformably to the requirements of its charter and of
an act amendatory thereto, passed with its consent, by the gen-
eral assembly in the year 1825. Four hundred feet of the
causeway as it then existed consisted of bridging, being in-
tended for a channel for the waters of the Connecticut river
that might overflow its banks at points above the causeway and
pass down the meadows through which the causeway extended;
and also as a channel for large quantities of the water of the
Connecticut river which were emptied into the meadows north of
the causeway, by certain ravines leading from the river, and
which began to cany water, before the river had attained such a
height that it overflowed its banks. In the month of Januaiy,
1841, an extraordinary flood in the Connecticut river washed
away and destroyed the bridging previously mentioned, and
which went by the name of the '* dry bridge," and also the ends
of the causeway adjoining thereto. The corporation in the
month of May of the same year obtained the general assembly
to pass the following resolution: " That in repairing and re- '
building the causeway between the towns of Hartford and East
Hartford, the Hartford bridge company may, and they are
hereby authorized to, rebuild the same permanently of stone;
provided they leave such sluices for back-water as shall, in the
opinions of Eli Whitney Blake and Henry Famham, of New
Haven, and Boswell B. Mason, of Bridgeport (who are hereby
appointed a committee for that purpose), be equivalent to the
bridging required by the existing provisions of law; and pro-
vided said causeway be rebuilt to the acceptance of said commit-
tee." The corporation applied to the committee mentioned in
the resolution to ascertain what in their opinion and judgment
was required of it by the above resolution, in the rebuilding of
its causeway, and as to what mode of rebuilding and repair
504 BiGELOW u Habtfobd Bridge Co. [Cona
would be acceptable to them. The committee made an eiamuia-
tion of the ground, and after mature consideration returned an
answer. The committee was of opinion that the length of the
" dry bridge" bore such a small proportion to the whole section
of the stream at times of flood, that its filling with solid masonry
work would have a scarcely appreciable effect in raising the
level of the water at such times. The committee then contin-
ued : " If in filling up this space, the mason-work, together with
the adjoining ends of the present causeway, were 1^ one and
a half or two feet lower than the dry bridge was, the effect of
this depression, to prevent a contraction of the stream by an ac-
cumulation of ice at that point, would, in the opinion of the
committee, fully counterbalance the impediment which the
mason-work itself would present to the flowing of the water.
Entertaining these views, the committee would deem it necessary
only to leave a sufficient amount of sluiceway through the mason
work to permit the waters to subside from the flats above after a
flood as the main stream subsides; and for this purpose, they
would consider three semicircular culverts of twenty feet span
each, sufficient." The committee concluded their report by say-
ing that the construction of the resolution under which they
acted was doubtful; but that in their opinion the legislature in-
tended merely to guard against such a reconstruction of the
bridge as would expose adjoining property to greater damage by
flood, than that to which it stood exposed prior to the destruc-
tion of the diy bridge; and that if the bridge was rebuilt in the
manner indicated above, they would feel bound to accept it, as
being in their opinion equivalent, in point of securiiy to the ad-
joining property, to the construction previously existing. The
company upon receipt of this communication proceeded to act
upon it and to fill in the space formerly occupied by the diy
bridge with solid mason-work, leaving therein, however, four
semicircular culverts of tweniy feet span each, instead of the
three recommended by the committee. And, moreover, the level
of the mason-work was left at least one and a half feet lower
than the level of the dry bridge. At the time this bill was
filed, the mason-work to occupy the place formerly covered by
the dry bridge was complete, but that part of the causeway ad-
joining the ends of the dry bridge, and which had been washed
away, was not yet repaired. The bill stated that the committee
had erroneously construed the resolution under which they
acted, in regard to the amount of sluiceway required by it for
back-water, and that they had also misconstrued it in reference
lune, 1842.] Bioelow v. Hartford Bridge C!o. 505
to the height to which the causeway should be raised. That the
•effect of the causeway as it was being built would be to dam up
the waters, formerly accustomed to flow under the dry bridge,
and so cause the floods of the river to be of greater height, and
that it would expose the property and dwelling-house of plaint-
iff, which lay adjoining and north of the causeway, to more fre-
quent inundations, and to inundations of greater depth and
duration, and would cause them to be in imminent danger of be-
ing washed away by the floods and ice of the river; and that
owing to the depression in the causeway the difficulty and dan-
ger of passage thereon would be much increased. The bill also
further alleged that the danger to which plaintiff's property was
•exposed by reason of the causeway was shared by the other
property north of the causeway. The bill sought an injunction
against the further construction of the dauseway, in pursuance
of the plan proposed by the committee, and to enjoin the re-
moval of the work already done, and to enjoin the committee,
who were made defendants, from authorizing or accepting the
work when accomplished. The court below found, that the
•danger of destruction of the buildings upon plaintiff's land, by
the floods of the river, would not be increased by reason of the
erection of the causeway in the manner proposed by the com-
mittee, and that the increase of damage occasioned thereby to
the property would be slight. The court found, however, that
if the causeway in the place where formerly existed the dry
bridge, instead of being left one foot and a half below its level,
were raised to that level, the damage to the adjoining property
in cases of flood would be much greater, and the danger to which
the buildings on plaintiff's land would be exposed of being de-
stroyed by the water and ice coming down in times of flood
would be much increased. Upon these facts, and others which
appear in the opinion, the case was reserved for the advice and
consideration of this court.
Ibucey and Chapman, for the plaintiff.
Parsons, ccvUra.
Stobbs, J. This bill can not be sustained merely on the
ground that the difficulty and danger of traveling on said
causeway will be increased by the greater depth and more
rapid flow of the water which will be occasioned by the contem-
plated acts of the Hartford bridge company, and that therefore
said acts will constitute a public nuisance. It is very clear that
a bill in equity will not be entertained for an injunction against
506 BiGELOW V. Habtfobd Bbidgos Co. [Conxu
a public musancey unless it shows that the plaintiff will sustain
a special or peculiar damage from it, an injuiy distinct from
that done to the public at lax^. In Spencer v. The London
and Birmingham Railway Company, 8 Sim. 189, 11 Cond. Eng.
Ch. 890, the plaintiff ayerred not only that, by the ezcaTation
of the defendants in Oranby street, the said street was impasHa*
ble, and he was deprived of access from his hackney coach and
livery establishment at a place called Oranby News, through
that street to the Hampstead road, but also stated such &cts as
showed that he thereby suffered a particular injuiy, and one
different from that done to individuals in general. The vice-
chancellor on that ground decided that the plaintiff had a spe-
cial right, quite distinct from that of the public at large, and
overruled the demurrer to the bill, which proceeded on the
ground that the injuz^ was a public nuisance, and therefore,
that the relief prayed for ought to be sought by information at
the suit of the attomey-^neral, and not by bill. In Sampson
V. Smith, 8 Sim. 272; 11 C!ond. Eng. Ch. 482, the plaintiff
alleged that the body of the smoke which issued from the
chimney of the defendant's steam-engine, and the blacks and
Boot mingled therewith, descended in such dense bodies into
the street that the plaintiff's house and shop situated thereon,
were filled therewith and his goods and furniture very much in-
jured, and the health and comfort of himself and family very
much impaired thereby, and that it was a grievous nuisance to
the plaintiff, and also to the other inhabitants of that street and
neighborhood. The bill was sustained on the ground of the
special injury suffered by the plaintiff. Indeed, it is upon the
ground of the particular injury to the plaintiff, distinct from
that which he suffers in common with the rest of the pubUo,
that all the applications for injunctions against what is a public
nuisance are sustained: Crowder v. Tinkler, 19 Yes. 617. And
there is no good reason why, apart from such special injury, re-
lief should be granted in this mode, at the instance of a partic
ular individual. Courts of equity, in this respect, proceed ol
the principle which prevails in courts of law, that an action will
not lie in respect of a public nuisance, unless the plaintiff has
sustained a particular damage from it, and one not conmion to
the public generally: Co. Litt. 56 a; WtUiams' case, 5 Co. 73;
Sir Ihomas EarWs case, Carth. 173, 176; Chichester v. LeUibridge,
Willes, 71; Bobina v. Bobim, 1 Salk. 15; Iveson v. Moore, 1 Ld.
Baym. 486, 491; Bose et al. v. Miles, 4 Mau. k Sel. 101; WUkes
June, 1842.] Bigelow v. Habtfobd Bbidoe Co. 507
V. Hungerford MarJcet Company, 2 Bing. (N. Cas.) 281; Oready
T. Codling etdl.,2 Bing. 263.
To presenre and enforce the rights of persons, as individuals^
and not as members of the community at large, is the very oIh
ject of all suits, both at law and in equity. The remedies which
ihe law provides in cases where the rights of the public ard
effected, and especiallj in cases of public nuisance, are ample
and appropriate; and to them recourse should be had, when
such rights are violated. The courts of equity, in England, will
indeed entertain informations, not by individuals, but at the
suit of the attorney-general, or the proi)er crovm o£Bcer, for the
purpose of abating public nuisances, and what are termed pur-
prestoree. That mode of proceeding has been, however, hitherto
unknown here; and whether it would be tolerated in any case^
it is unnecessary to consider. The averment, that the acts con-
templated by the bridge company will be injurious to the prop-
erty of others besides the plaintiff may be disregarded; since th^
bill can not, consistently with any recognized principles, be
brought on their behalf: 8 Sim. 272.
Having disposed of these topics, the question arises, whether
the plaintiff has shown that there vras such a particular and
special injury meditated against him, or which he has reason to
apprehend from the acts of the Hartford bridge company, that
he was entitled to an injunction. And here the proof in the
case relieves us from the necessity of examining minutely the
principles and authorities applicable to bills for injunction
founded on apprehended injuries, which have been so elabor-
ately commented on, by the counsel. Of whatever character it is
requisite that the injury complained of should be, in order to
lay the foundation for this remedy, it is necessary that it should
be a substantial, and not merely a technical, or inconsequential,
injury. There must not only be a violation of the plaintiff's
rights, but such a violation as is, or will be, attended with actual
and serious damage. Even although the injury may be such that
an action at law would lie for damages, it does not follow, that
a coxai of equity would deem it proper to interpose, by the sum-
mary, peculiar, and extraordinary remedy of injunction: 8 Sim.
194. It is obviously not fit that the power of that cotirt should
be invoked, in this form, for every theoretical or speculative
violation of one's rights. Such an exercise of it would not
only be wide from the object of investing those courts with
that power, but would render them engines of oppression and
vexation, and bring them into merited odium. It is a power
608 BiOELOW u Hartford Bridge Co. [ConzL
whioh is extraordinaiy in its character, and to be
generally only in oases of necessity, or where other remedies
may be inadequate, and even then with great discretion and
carefulness. It is a salutaiy, and indeed a necessary power,
when confined within those safe limits in which it has been
exercised; but capable of being made an instrument of oppres-
sion, and therefore to be extended, if at all, with great circum-
spection: Earl ofRipon v. Hohart^ 3 My. ft E. 169; 1 Coop. Sel.
Cas. 333; 8 Cond. Eng. Ch. 331, 469.
In this case, the plidntiff claims only, that his property shall
be exposed to no greater danger of injuiy than it was before the
destruction of the dry bridge, which rendered the rebuilding of
the causeway, as contemplated by the Hartford bridge com-
pany, necessary. Of the causeway, up to the time of such
destruction, there is here no complaint. On this subject, it is
found, that the buildings on the land of the plaintiff, by the
manner in which the bridge company are rebuilding the cause-
way, will be in no greater danger of being destroyed or carried
away, by the floods in Connecticut river, whether ordinary or
extraordinary, than before said dry bridge was destroyed; that,
in times of high floods, the water will rise somewhat more
rapidly and suddenly, and somewhat higher, north of the cause-
way, and continue longer, than it did previous to that event;
but to what extent can not be ascertained by calculation,
and is matter of opinion and conjecture; but not, in the opinion
of the court, to such an extent as to injure the land or buildings
of the plaintiff, in value, materially, or to an extent that can be
appreciated or estimated; that the productiveness of the land
will not be materially diminished; and that the decay and de-
predation of the buildings, and the repairs and inconvenience
that they will occasion, will be very small, and not such as will
lessen materially the intrinsic value of said lands or buildings.
Assuming that the nature of the injuiy, in this case, is such,
that, if it were sufficiently important in point of magnitude, it
would warrant the interposition of the court by injunction, and
that the existence of the danger is shown with such certainty
that there would be no objection, on that ground, to granting
the relief sought, we are clearly of opinion, without dwelling
on the several particulars of the finding on this subject, that
the extent of the damage to be apprehended in this case,
is wholly insufficient to justify us in applying the peculiar and
extraordinary remedy which is sought. The decay and depre-
ciation of the property, the repairs which may be thereby ren-
'^'^red necessary, and the inconvenience which may ensue to the
June, 1842.] Bigelow v. HABTFORr) Bbidqe Co. 509
plaintiff, are found to be very small, not capable of apprecia-
tion, and not such as will materially lessen the intrinsic value
of the plaintiff's property. We find no precedent, and discover
no reason, to warrant the granting of an injunction for an ap-
prehension of injuiy of such inconsiderable magnitude.
The plaintiff, however, relying on the principles sanctioned in
Blackmore v. The Olamargaruihire Canal Navigation, 1 My. ft K.
154; 6 Cond. Eng. Gh. 544, and the cases there cited, takes the
ground that acts of the legislature, like that under which the
Hartford bridge company are constructing the works in ques-
tion, are, in the language of Lord Eldon, '* to be regarded in
the light of contracts made by the legislature on behalf of every
person interested in the thing to be done under them;" that the
acts, under which the said company are proceeding, form virtu-
ally a contract between the company and the neighboring pro-
prietors; that the committee, in the present case, have miscon-
strued and exceeded their powers under those acts, and that the
doings of the company are unauthorized; and that, therefore,
irrespective of the extent of the injury which will be inflicted
on the plaintiff, they should be restrained from exceeding their
powers, on the principles upon which courts of equity will pro-
ceed in enforcing the specific execution of contracts. Without
questioning this view of acts of that description, it may well be
doubted whether the court would, under the circumstances of
this case, grant the relief here sought, if it rested on a formal
contract made between the parties; but there is no authority for
believing that the equity courts in England would; and certainly
we are not disposed to cany the analogy which may exist, for
certain purposes, between such acts of the legislature and private
contracts, to the wide, inconvenient, and unnecessary extent of
furnishing the relief here sought, upon the ground of such sup-
posed analogy, in favor of every member of the community,
who may experience or have reason to fear a trifling incon-
venience or an unsubstantial injury, from a departure, i)erhaps
merely literal, from the provisions of such acts.
The plaintiff also claims, that he is entitled to relief on the
ground that the Hartford bridge company are reducing their
causeway below the height which their charter permits, and that
they may be compelled to laise it to the height which it requires;
in which case, as the court finds, the water will, with the re-
duced amount of sluiceway, be so raised as to expose the build-
ings of the plaintiff to great injuiy and destruction. It is not,
-however, found, that the company have depressed the causeway
510 BiOELOW V. Hartford Bridge Co. [Conn
below what the charter wanaats; and if they had, and should
l)e compelled to xaifie it, it is not to be presumed that thej would,
in that case, neglect to enlai^ the outlet for the increased ac-
<mmulation of water. The state of things which the plaintiff
here supposes and apprehends, is not found to be meditated by
the company; and it is proper to wait until it actually exists, or
is threatened, before the requisite remedy shall be applied.
This view of the case supersedes the necessity of inquiring
what is the true construction to be put on the resolution of the
legislature of 1841, which is not unattended with difficulty; or
whether the committee appointed by that resolution are properly
made parties to this bill.
The superior court, for these reasons, should be advised that
the bill ought to be dismissed.
In this opinion the other judges concurzed, except WnxuxB,
O. J., who gave no opinion, being disqualified by interest in the
event of the suit.
Bill dismissed.
Bnx voa ak IirjinronoN against a pablio noiaanoewill not be entertained
At the anit of a priyate individnal, onleaa it ahowa that the plaintiff will sus-
tain a special or peoaliar damage from it, an injury distinct from th&t done
to the pnblio at Urge: O'Brien v, Norwich A W. R, B. Co.. 17 Conn. 375;
Clark ▼. Saybrook, 21 Id. 827; Irwin v. Dixion, 9 How. (U. S.) 28; Horwieh
<ku Light Co, ▼. Norwich Ciiy Oaa Co,, 25 Conn. 36; Cumberland VaOey R,
R. Co.*$ Appeal. 62 Pa. St. 227; Buck MomUain Coal Co. ▼. Lehigh Coal and
Nav. Co., 60 Id. 99; Petereon v. Navy Yard etc R. R. Co., 5 Phila. 201; Shed
r. Hawthorne, 3 Neb. 185; Dover y. Portemottth Bridge, 17 1^. H. 216; Allen
▼. Board, 13 K. J. Eq. 74; Himehman ▼. Paterton H. R. R. Co., 17 Id. 79;
DooUUle V. Superviaore qf Broome Co., 18 K. T. 161; 16 How. Pr. 618. But
the oorrelative of this proposition is tme, and if the apecial injury is shown,
«n injunction will not be refused: FaUs ViUage Water Power Co. t. Tibbette,
31 Conn. 169; Fkink r. Lawrence, 20 Id. 120. The principle governing these
oases, that the state is the proper party to enforce a remedy against a publia
wrong, was applied in Orcfi v. Jaekaon Co., 5 Kan. 5^ and an injunc-
tion sought by a taxpayer to restrain the county board from allowing a claim
jJleged to be illegal was denied, because the interest of complainant in ob-
taining such relief was but one common to all the taxpayers of the county.
Ths dictum in tbb prinoipal oass, which doubts the jurisdiction of a
court of equity to entertain an information at the instance of the attorney-
general, to abate a public nuisance, is criticised and denied in Attorney-gen-
eral V. Railroad Companiee, 35 Wis. 535, where such jurisdiction was enter-
tained. See, likewise, State v. Saline Co. Court, 51 Mo. 381. In all the fore-
going cases Bigelow y. Hartford Bridge Co. is cited as authority.
As TO WHEN Injunctions will be Granted against a public nuisance, see
Roaeer v. Randolph, 31 Am. Dec. 712.
An Inyasion of Plaintiff's Legal Rights is not a ground for an injunc-
tion unless it is accompanied with serious and substantial damage: Baeeetl
T. Salisbury Mfg. Co., 47 N. H. 439; Lexington eU. Bank v. Guynn, 6 Bush,
'HumUonY. Orant^ 10 B. L 4&
GASES
nr THS
SUPREME COURT
ILLINOIS.
Datds^ Auditob of Publio AoooumB, v. Bqbiov.
[8 Bgammoii, 41.]
^Uu ov KiL Dbbkt to Dsbt on Bond, where the hond ii the glel of the
aotioo end the recorery ie of e earn m fumiero, ie bed; otherwiMb wheie
the bond is merely induoement to the action.
PUB4 07 Nil Debit to Dbbt on Shxbiiv*s Bond is bed.
^HBRS SXAL OR SORAWL IS NOT AVTIXXD TO SOMB OF TBS NaMM of the
oUigors in a bond which indicates upon its face an intention to seel it*
it will be presnnied that those obligors agaiast whose namss no esale
i^pear, adopted the seals affixed l^ the otiiers, and all will be boundy
bat the preeamptioin may be rebutted by plea and proof.
DiBT on bond. The case appears from the opinion.
t/1 Jjmhofm^ aUomet^-^eneral, for the plaintiff.
W. A. MinshaUf for the defendants.
By Court, Sgatbs, J. This is an original action of debt, in-
-stitated by the plaintiff, against the defendants, securities of
Thomas Haydon, sheriff of Schuyler county, for the recovexy of
the sum of ten thousand dollars, the penalty of his bond. The
declaration avers that the defendants made their certain writing
obligatory, sealed with their seals, and makes profert of the
bond. The breach alleged is, in not paying over the sum of
-seven hundred and thirty-six dollars and twenty-five cents,
which he received as sheriff, on the first day of March, 1888, as
taxes on lands listed in said county, and lying ia other counties
in the state. The declaration also avers, that the clerk of the
•circuit court of said county, approved said bond, do circuit
<x>urt being held within thirty days after he gave notice to the
612 Davis v. Burton. [Illinoia^
said sheriff, of the receipt of his commission. There are five^
seveial pleas, upoi\ all of which, except the second and third,
there are issues to the country.
In the second plea, the defendant. Penny, pleaded nil dd>el
In the third plea, the defendants. Fellows, McCutcheon, Bich
ardson, Campbell, Warren, Snider, BandaU, Wells, and Penny
pleaded that " Thomas Haydon, by Tirtue of his office, as sher-
iff, did not collect any taxes in Schuyler cooniy, between the
time of the execution of the writing obligatory declared on, and
the end of the next term of the Schuyler circuit court; and thai
said writing obligatory was never presented to, or approved by,
the judge of the Schuyler circuit court." To these two pleas,
the plaintiff demurred generally. The question arising upon
the demurrer to the third plea, is settled by the resolution of
the court in the case of Davis y. Haydon et oZ., decided at thi»
term: 3 Scam. 35. The demurrer to the second plea, question^
the sufficiency of a plea of nil debet to debt on bond. Where the
bond is the gist of the action, and the recovery is of a sum in
numero, such a plea is bad; but where it is merely inducement
to the action, the plea is good: 1 Chit. Fl. 423. In this case,
the recovery will be ten thousand dollars; to be satisfied as ta
the plaintiff by the payment of such damages as may be assessed
upon the breach assigned; and the judgment will stand as a se-
curity for such damages as may be assessed upon such other
breaches as may be assigned by any other person interested: B,
L. 490, sec. 16; GMLe's Stat. 532. If the averment in the decla-
ration be true, that the defendants signed and sealed the writ-
ing, the plea is not admissible. Upon examination of the bondi
there appear seventeen obligors, and only fifteen scrawls set for
seals. There is no scrawl set opposite the name of defendanti
Fenny. Is it then his deed? If it is, his plea is insufficient.
In the case of Byera v. McClaunaham^^ 6 Gill & J. 250, it wa»
held that a piece of blank paper signed by a party over whosc>
signature a bond is afterwards written, and shown to him, will
be obligatory, if he does not repudiate it at the time. In Comyn'a
Digest, title Fait, 272, 273, it is said: <' If there be mutual cove-
nants between A. and B., of the one part, and C. and D., of the
other, and B. does not seal; yet covenant lies by him against C.
and D., upon this deed; for he is made a party to the deed, and
and C. and D. covenanted with him." In Sheppard's Touch-
stone, 56, it is laid down, that " If there be twenty to seal one
deed, and they all seal with one piece of wax, and with one seal,
1. Bytn ▼. McOlanaktm.
July, 1841.] Davis v. Bueton. 513
yet, if ihey make distinct and serexal prints, this is very sufficient
sealing, and the deed is good enough/' In the case of McKay
et al. y. Bloodgoodf 9 Johns. 284, in debt on bond, it was held,
that where one partner signs a bond in the name of the firm, and
affixes one seal, it will bind the other, who saw and approved it
before the signing and sealing, but who was not present when
done. It has always been held, that one piece of wax may
serve for several obligors, and that one may seal for another:
Perk., sec. 134.
In the Case of Lord Lovelace, Sir W. Jones, 268, it was ad«
mitted by the prosecution, that *' If one of the officers of the
forest put one seal to the rolls, by consent of all the verderers, re-
garders, and other officers, it is as good as if every one had put his
several seal; as in case divers men enter into one obligation, and
they all consent and put but one seal to it, it is a good obliga-
tion of them all.'' It was held in the case of BaU v. Dunster^
viUe, 4 T. B. 318, that if one partner ina transaction seal a deed
with one seal for himself and partner, with his consent, and in
his presence, it is a good execution of the deed for both. This
is acknowledged to be the rule in the case of Ludlow et al. v.
Simond, 2 Gai. Cas. 1, 42, 65 [2 Am. Dec. 291]. It is also laid
down in 1 Ph. Ev. 416.
The case of Hatch v. Crawford, Adm'r, 2 Port. 54, is in point.
It was an action of assumpsit upon a written agreement, which
concluded: *^ GHiven under our hands and seals." One signed
and sealed, and immediately below his name, the other signed*
but made no separate seal; plea, the general issue. The court
below excluded this instrument from being read as evidence un«
der the issue, in that form of action, on Ihe ground that it was
the deed of both. The supreme court affirmed that decision.
Chief Justice Saffold, after reviewing the authorities in Comyn,
and Sheppard's Touchstone, remarked: ''It is true, the cases
here given are slightiy different from the one under considera-
tion; but they are to be regarded only as instances of informal-
ity which affect not the validily of the instrument; they do not
prove that there can be no other irregularities of execution,
which are equally immaterial;" and concludes: '* In relation to
the case before us, it may be remarked, that the circumstance
of the instrument's having expressed the intention of both par-
ties to execute it under their hands and seals; of its having con-
tained mutual stipulations, binding both, and of its having been
signed and sealed by the party of the first part; then the execu-
tion at the same time by the other party, is a sufficient indication
Am. Dbo. Vol. XXXVI— 88
514 Davis v, Buhton. [Illinoia.
of the intention of the second party to ezecate it according to
its import, and to bind himself with the same solemnity that he
received the obligation of the other pariy. In l^gal contempla-
tion, he is presumed, instead of affixing a second seal, to have
adopted the one already annexed."
From the character of this instrument, purporting upon its
face to be given under the hands and seals of the defendants,
conditioned for the performance of official duties; being re-
quired by law to be under the seal or scrawl of the obligors;
from the number of seals annexed, are we to presume that the
defendant, Penny, signed it in bad faith towards, and intending
to deceive the principals and the obligees, by omitting to set a
separate seal ? Or shall we presume that he signed bona fiie,
with the intention of becoming bound, and that in omitting to
annex a separate seal for himself, he intended to adopt one al-
ready affixed ? In reviewing these authorities upon the doctrine
of seals, on questions the most analogous to the one before us,
of any we can find, we see a steady and progressive relaxation
of the ancient and strict doctrine on this question. We find
no ancient decision at the common law in point. Those most
apposite are of more modem date; and the one in point in Ala-
bama, is of recent date. Without authority in point at the
common law, we feel disposed to lay down such a rule as will
be consonant to reason and justice, and comport with the obvi-
ous intention of the parties. We will look to the intention of
the parties, as set out in their writing, for its character and
digniiy, if there be but one seal or scrawl to authorize our
view.
We feel warranted, by common sense, by justice and sound
reason, as well as by the principles of law, to presume that all
the signers of an instrument indicating, upon its face, an inten-
tion to seal it, adopted any seal or scrawl that may be annexed
to the name of one. The obligors will be left to rebut that pre-
sumption, by plea and issue. It is, therefore, considered that
the law is with the plaintiff.
Demurrer sustained.
Skauno of Ikstbumbnt, and what G0N8TITUTB8 SuTFioiEST Seal: See
AtuUn V. WhiUoek, 4 Am. Dec. 550; Perrtn« v. Cheeaemany 19 Id. 388; Oom-
toell V. ToUe's Ex'r, 30 Id. 506; Chrimdey ▼. ^Oey't AdnCn^ 32 Id. 319, and
Dote. One seal may serve for all the signers of an inatmment; it is not
necessary to have as many separate seals as there are obligors: PequawkrU
Bridge v. McUhea, 26 Id. 737. So held also in McLean v. WiUcm, 3 Scam.
51; and Witter v. McNal, Id. 436, citing DcwU ▼. Bmitm.
luij, 1841.] Smith u Eames. 515
Smith v. Eames.
[3 SOAiocoii, 76.]
Jnunt HAViKO FoBMSD Decided Opinion, which is positive and not hypo-
ihetioal, upon the merita of the case, either from personal knowled;;e,
from statements of witnesses or of parties, or from rumor, which
opinion will prohably prevent him from giving an impartial verdict, is
sabject to challenge for cause.
LiOBT, Transient, or IItpothetigal Opinion Formed bt Juror, which
may be changed, and which does not show a conviction of the mind and
a fixed conclusion upon the case, is not a good ground of challenge; and
a full examination may be allowed if necessary to ascertain the state of
the jnror*s mind.
OranoN Formed bt Jitror from Rumor as to which party in the case
ought to succeed, where he states on his examination that he still retains
that opinion if what he has heard is true, but is not asked as to whether
or not he believes it to be true, is not a good ground of challenge.
AnriDAViTS of Jurors to Impeach their Verdict by showing that they
misunderstood the instructions, and without such misunderstanding
would not have found as they did, are inadimssible.
Afp£al from Morgan county cirouit court. ' The case is stated
in the opinion.
J, J. Hardin, for the appellant.
WiUiam Brown and E, B. McClure^ for the appellee.
Bj Court, Bbeese, J. This was an action of assumpsit,
brought in the Morgan circuit court, by Eames against Smith,
in which a judgment was rendered for the plaintiff, from which
an appeal was taken to this court. The only points presented
for consideration are, first, as to Uie competency of a juror who
was called and sworn after being objected to; and, secondly,
whether affidavits of jurors can be received to explain their
verdict.
As to the first point, the bill of exceptions taken in the cause,
states, that upon calling a jury, after the defendant had ex-
hausted his peremptory challenges, Joseph J. Taggart was
called as a juror, and upon being questioned by defendant's at-
torney, whether he had formed and expressed an opinion in re-
lation to the right of the plaintiff to recover, answered that he
had both formed and expressed an opinion. Upon being asked,
by plaintifi^s counsel, whether he had formed his opinion from
conversing with the witnesses, or from his own knowledge of
the facts, or from information derived from the parties, or from
rumor, he answered, from rumor. Upon being asked, by de-
fendant's attorney, whether he knew who the witnesses were, ho
fil6 Smith v. Eames. (IIlmoi.<v
said he did not. Upon being asked by the defendant's counsel^
whether he still entertained the opinion he had heretofore-
formed, as to which party ought to succeed in the matter, h&
answered, he did, if what he had heard was true. The jury-
man was not interrogated as to his belief of the truth of the-
rumors to which he referred, as the bill of exceptions states.
The defendant's attorney challenged him for cause, which the-
court disallowed, and he was sworn as a juror. In support of the^
challenge, the appellant's counsel has referred to Co. Lit. 157
a, b; 2 Pet. 499, 500;* 2 Johns. 194;' 7 Cow. 122;» Bull. N. P.
307; 1 Johns. 316;* 1 Cow. 432;* 1 Swiff s Dig. 737; 1 Burr'a
Trial, 41, 43, 370, 419; 4 Wend. 238, 241;* 9 Pick. 496;' Breese,
29;* Hill. Dig. 182. Upon the second point presented, he ha»
referred to 3 Cai. 58-61.*
The counsel for the appellee, to sustain the decision of tha-
circuit court, relies upon the case of DwrtXL v. Mosher, 8 Johns.
446, 8d ed.; 6 Cow. 664;" 7 Id. 122, 123;" 1 Burr's Trial, 869,
870, 880, 881, 408, note 418; 1 Cow. 438." We have carefully
examined all the cases refezied to, with a desire to arriyeat some
rule which shall be suited to our condition, which can be prao-
tically enforced, and which shaU do no violence to the right of
erery person to a fair and impartial trial by jury. There is not
a perfect coincidence of views in the several cases referred to,
nor entire harmony of opinion. The old rule was, that the more-
a person knew of the facts, of his own knowledge, the better
qualified was he to perform the functions of a juror. The doc-
trine now is, in England, that if a juror has declared that the
prisoner is guilty, or will be hanged, or the like, if made out of
ill will to him, it is good cause of challenge; but if it was made
from personal knowledge of the facts in the cause, it is no ground
of challenge.
The leading case in this countiy upon this subject, is that of
%urr, indicted for treason. The opinions and resolutions of
Chief Justice Marshall, who tried that case, upon the varioue
objections made to jurors, as they were called, have been re-
ceived favorably by all the courts of the several states, and it
will not beMif&cult, aided by the light which his brilliant mind
has shed upon the subject, to come to a conclusion, correct in
principle, and calculated to promote justice. For this purpose,
1. Queen f. Hepburn, 7 Or. 290. 3. Wood v. Stoddard. S. PeopU ▼. VenmU^oa,
4. Blake v. MiXUpoMgk, 6. PringU ▼. Bute, t, PoopU ▼. MeOker; S. C, 21 Am. Dee. m
7. CemmoHMeaUh v. Knapp; S. 0., SO Am. Deo. 49L 8. Noble ▼. PeopU,
9. Smith ▼. Cheeaam. 10. BaparU VemU
11. People ▼. VerwMjfea, IS. Pringle ▼. Aim.
July, 1841.] Smith v. EAMEa 617
it will be unnecessatj to enter into an elaborate reriew of all the
cases cited, bnt to state simply the general conclusions to which
they all tend, and that is, that a juror is disqualified if he has
expressed a decided opinion upon the merits of the case. If,
without any qualification whatever, a juror says the defendant
is guilty, or the like, or that the plaintiff ought to recover in the
a(3tion, or that the verdict ought to be against the plaintiff, he
would be disqualified, as not standing impartial between the
parties.
If, on the contrary, a juror says that he has no prejudice or bias
of any kind for or against either party; that he has heard rumors in
relation to the case, but has no personal knowledge of the facts;
and from the rumors has formed and expressed an opinion in a
particular way, if they are true, without expressing any belief in
their truth, we should think he would not be disqualified. By
hearing reports of a case, not from the witnesses, nor from the
parties, but from common fame, and making up an opinion on
them, the juror has not prejudged the case, unless the case
should turn out to be predsely as the rumors were, a thing very
improbable; he has adjudged only the rumors, varying in their
hue and color as they circulate through the country. The
faaman mind is so constituted, that it is almost impossible, on
hearing a report freely circiflated in a county or neighborhood,
to prevent it from coming to some conclusion on the subject;
and this will always be the case while the mind continues to be
susceptible of impressions. If such impressions become fixed,
and ripen into decided opinions, they will influence a man's con*
duct, and will create, necessarily, a prejudice for or against the
party towards whom they are directed, and should disqualify
him as a juror. Opinions are formed in different ways: with
some, their preconceived prejudices are their opinions; with
others, a current rumor fixes the belief; with another class, the
most idle gossiping is received as truth itself; while others
hesitate long, and demand testimony, before they will assent or ,
dissent. Taking mankind as we find them, it may not be un-
reasonable to believe, that by far the greater part come to no
certain conclusion on a statement of facts, until they have evi-
dence of their existence, tliough they may have impressions in
regard to them, which, if not carefully examined, might seem
to be fixed opinions, and when called on, it would be so stated.
A distinction must bo luudo bet%veen such impressions and opin-
ions, and in this consists the rule.
In iho case of PeojAe v. Mather, 4 Wend. 241 [21 Am. Dec.
518 Smith v. Eames. [Illinois
122], ihe court says: ** There is no difiEerenoe between an opin-
ion formed by being an eye-witness of a transaction, or by hear-
ing the testunony of those who were such witnesses, and an
opinion founded upon rumors and newspaper publications/'
This is true if a decided opinion is formed, for it matters not
how, or upon what it is formed, whether upon rumors or per-
sonal knowledge, so that it is an opinion. But there are grades
of opinion. That which the public instinctively forms, upon
the happening of any striking occurrence, or of those matters
which are current topics of remark, should be distinguished
from those deliberate convictions of the mind which are pro*
jluced by maturely considering the facts and drcumstanoes of a
case, and which regulate a man's conduct, or prompt him to ac-
tion. If a person, without any laiowledge of the facts, upon
the faith of rumor alone, forms a deliberate opinion, and is
convinced, without any evidence, he is not fit to judge his
fellows.
But if, in obedience to the laws of his oxganization, his mind
receives impressions from the rexx>rts he hears, which have not
become opinions fixed and decided, though they may seem to be
at first, he would not be disqualified, and this is in accordan^t
with the views expressed by Chief Justice Marshall in Bwrr'n
case. He says: " light impressions, which may be supposed to
yield to the testimony that may be offered, which may leave the
mind open to a fair consideration of that testimony, constitute
no sufficient objection to a juror; but that those strong and deep
impressions which will close the mind against the testimony
that may be offered in opposition to them, which will combat
that testimony and resist its force, do constitute a sufficient
objection to him:" 1 Burr's Trial, 416.
We take it, then, as settled, that the opinion which is to dis-
qualify, must be a decided one, not an impression merely, which
rumor may have produced, and which another report may dissi-
pate. The opinion must, also, be a i>ositive one, not depending
upon any contingency, not hypothetical. All the cases referred
to, recognize this distinction. In Durell v. Moaher, 8 Johns.
445, it was held, that where a juror, on being called up, said
he had no personal knowledge of the matters in dispute, but
that if the report of the neighbors was correct, the defendant
was wrong, and the plaintiff was right, was qualified; for the
reason that the opinion was not a fixed and positive one, that it
depended on the hyx>othe8is of the truth of the reports. This
sase has never been overruled, and is approved by all the subse-
Jnly, 1841.] Smith v. Eahes. 519
qnent cases. It estaUiahes tne principle, and for good reasons,
that ih^re mnst be a decided conTiction of the mind, on the facts,
before the juror can be considered as having formed an opinion
which -will disqualify. Here the jnror showed which way his
opinion was, if the reports were true, that he was against the
defendant, who had challenged him. In the case before the
comt, this does not appear. It is not shown by the record,
how the opinion of the juror was, whether for or against the
party challenging him; and it can not be known whether the
party challenging was prejudiced by his being sworn. lu most
of the cases cited, the opinion of the juror was made known, as
in the case in 7 Cow. 881.^ There the juror had heard the wit-
nesses in a former trial of the same cause, and had made up his
mind conclusively, that the defendants were guilty; and he had
freely expressed this opinion. It is, however, tJie opinion of
the majority of the court, that this circumstance should make no
difference in the principle. A party ought not to be compelled
to abide the risk of the opinion which may be formed, being ad-
verse to him, it being considered sufficient that he has formed and
expressed an opinion.
It is not perceived that the case at the bar differs in any essen-
tial particulars from the case of Dwrell v. Mosher. Taking the
whole statement of the juror in connection, he said he had
formed and expressed an opinion from run;^or as to who ought to
recover, and that he was still of the same opinion if the rumors
were true, placing his opinion entirely upon the hypothesis of
^e truth of the rumors. He had an opinion from rumor, if
the rumors were true, leaving it clearly inferable, that if they
were not true he had no opinion. At most, then, he showed
that he entertained not a fixed, decided, positive opinion upon
the merits of the case, but had formed just such an one as aU
persons instinctively form when they hear a narrative of any
oconirence or the history of any transaction. He showed that
he had come to no certain conclusion upon the facts; that his
mind was in such a condition as to be open to the testimony
that might be offered, and prepared to yield to its force. On
Burr's trial, Hamilton Morrison was called as a juror, and he
stated that he had ibrequentiy declared, that if the allegations
against the prisoner were true, he was guilty; and he was de-
cided to be an impartial juror. In the same case Mr. Parker
was called as a juror, 1 Burr's Trial, 380, 881, and being exam-
ined by the court, said *' he had formed no opinion of the truth
1. PMpU y. VtrmilyM ; S. C, 31 Am. 123.
520 Smith v. Eames. (Illixioia,
of the dexx>sitions, but if they were true, Burros designs were
treasonable; " and he was retuned as a juror. Opinions of this
character, which are hypothetical^ do not disqualify.
We then lay down this rule, that if a juror has made up a
decided opinion on the merits of the case, either fzom a per-
sonal knowledge of the facts, from the statements of witnesses,
from the relations of the parties, or either of them, or from
rumor, and that opinion is positiye, and not hypothetical, and
such as will probably prevent him from giving an impartial ver-
dict, the challenge should be allowed. If the opinion be
merely of a light and transient character, such as is usually
formed by persons in every community upon hearing a current
report, and which may be changed by the relation of the next
person met with, and which does not show a conviction of the
mind and a fixed conclusion thereon, or if it be hypothetical,
the challenge ought not to be allowed; and to ascertain the
state of mind of a juror, a full examination, if deemed neces-
sary, may be allowed. Testing this case by this rule, we think
the juror was properly received.
As to the second point, that the court, on the motion for a
new trial, improperly rejected the affidavits of the jurors to ex-
plain the grounds of their verdict, we think there is no error.
The affidavits are set out in the second bill of exceptions, and
show that most of the jurors swore after they had rendered their
verdict, that they understood the charge of the judge, as in-
structing them to find as they did, and if they had not so under-
stood, they would have found a different verdict. In Dana v.
Tucker, 4 Johns. 487, it was held, that the affidavits of jurors
could not be received to impeach their verdict; but that they
might be to support it. The same doctrine is recognized by this
court in the case of Ibresler et al. v. Ouard ei al., Breese, 44
[12 Am. Dec. 141]. There is one class of cases, where the affi-
davits of jurors may be received to impeach their verdict, and
that is, where a part of them swear that they never consented to
any verdict: 2 Wash. 79; 8 Burr. 383.^ We apprehend no case
can be found, where the jurors, after having consented to the
verdict, have been permitted, afterwards, for the purpose of set-
ting it aside, to explain by affidavits, the ground, or the train of
reasoning by which they arrived at the result. This would be a
very dangerous practice, as it would create a strong temptation
in the losing party to tamper with the jurors, and thus procure
their after-thoughts, produced by intercourse with the party, to
1. Cogan t. Ebden, I Buzr. 888.
July, ld4!l.] Smith v. Eame^ 521
he imposed ui>on the court, for their opinionB in thb juzy-room.
If they differ about the instructions of the court, they should
come into court, and have them repeated; and if they fail to do
-this, they ought not to be permitted to show afterwards, what
their impressions or views of the instructions were. Were the
practice to receive the affidavits of jurors, to explain the grounds
*of their finding, in disputed cases, but few verdicts would be re-
tained, as jurors might be found, who would allege as mistakes
-of law or fact, in making up their verdict, what were in reality
^after-thoughts, produced by conversations with the parties.
We see no reason for enlarging the operation of the rule as
4tdopted; it is a salutaiy one as limited. The power in the court
to grant new trials for mistakes of law or fact, by which injus-
tice is done, is an ample security in such cases.
There being no error in the proceedings of the circuit court,
-the judgment is affirmed with costs.
SciLTBS, J., dissented.
Pbxcongbived Opinions as Obound fob Coallbnos to Jubobs. — One
•of the chief aimi of the jury sjrstem is, to secure in every case an impartial
Jury. It is at the same time most difficult to accomplish. Indeed it has
l)eea well said to be one of the most perplexing problems of the law to de-
termine how to get twelve honest and nnprejadiced men into the jury-box.
A prime object of challenges to the poll is to ascertain whether every person
proposed for jury duty in each particular case has that equal poise of mind,
with reference to the mfttter to be tried, which is necessary to coustitute a
igood and lawfal juryman. The test is, as was said by Lord Coke, that evsiy
man going into the jury-box shall ** stand indifferent as he stands unsworn:*'
•Co. lit* 165 b. Thus far there is no question as to what the law requires; bat
as to what shall be deemed to constitate in each partioolar case that degree
•of indifferanoe which will satisfy this requirement, the aathorities are not at
4JI agreed.
Thb Bulb Esiabubbbd at an Eablt Day in Bnoland was that no
opinion previously formed or expressed by a juror as to the merits of a case
was sufficient to disqualify him unless it proceeded from actual £avor or ill-
will towards one of the parties, or was of such a nature as to furnish of itself
A presumption of such favor or ill-will. An opinion founded upon a knowl-
■edge of the facts or of what the juror honestiy believed to be the facts, with-
. -out malice or favor, did not affect such juror's competency, however firm and
unqualified such opinion might be, or however frequentiy expressed. A juror
is said by Sergeant Hawkins to be incompetent, where it appears " that he
hath declared his opinion beforehand that the party is guilty or will be
hanged or the like; yet it hath been adjudged that if it shall appear that the
Juror made such declaration from his knowledge of the cause, and not out of
■any ill-will to the party, it is no cause of challenge:" 2 Hawk. P. C, c. 43,
«ec 28; Bac. Abr., Juries, E. 5. This statement of the law is founded upon a
-case in the year books: 7 Hen. VI., fol. 25, where Babington, Justice, is re-
^rted to have said in a charge to the triers of a challenge to the favor inter-
|K)sed against one proposed as a juror: "If he will pass for one party.
522 Smith v. Eambs. |lllin<n&
whether the matter he tme or f al8e» he is favorable; so if he has said that he
will pass for one party, if it he for affection that he has to the person and not
for the truth of the matter, he is favorable; bat if it he for the troth of tlie
matter that he has knowledge of it, he is not favorable:*' Fits., Challenge, 22;
Rex v. Edmonds, 6 Eng. Com. L. 573; S. C, 4 Bam. & Aid. 492. In Brooke,
Babington, J.', is reported in the same case to have stated: " If he (the joror)
has said twenty times that he will pass for the one party for the knowledge
that he has of the matter and of the tmth, he is indifferent:" Brooke, A.
Challenge, 55; Rex v. Edmonds^ auprti. In accordance with the doctrine thus
early established in England it has long been the settled law of New Jersey
that an opinion based on knowledge of the facts, or on information supposed
to he trae, does not disqualify one from sitting on the jury in a criminal case,
where there is no malice or prejudice: 8taU v. Spencer ^ 21 N. J. L. (1 Zah.)
196; StaU v. Fox^ 25 Id. (1 Dutch.) 566. In that state, therefore, there
would be nothing to prevent the witnesses in a case from sitting on the jury
if they had no personal feeling for or against either party. Under such a rule
an opinion founded upon the knowledge that the juror " haa of the matter"
should, it would seem, be presumed to be honest and free from actual biaa
until the contrary appears; and on the other hand bias and partiality ought
to be presumed whero the opinion is formed without any personal knowledge
of the facts and without hearing the testimony: People v. MaihtTt 21 Am.
Dec. 122. Therefore a juror having formed an opinion from knowledge of
the facts would be presumed competent, while a juror having formed aa
opinion without such knowledge and without* hearing the evidence, upon mere
rumors or hearsay reports, would be presumed incompetent^ which ia the ex-
act converse of the rule which generally prevails in the United States.
Thb Bulb in most or the States of the union is substantially, that if one
called as a juror has actually prejudged the case, either throogh malice or
favor or from previous knowledge of the facts, he is disqualified to sit. There-
fore an opinion which amounts to such prejudgment renders the juror incom-
petent. The only point of difference is as to what shall be deemed such ai»
opinion. This rule certainly seems to be more consistent with the theory of
the jury system than that which obtains in England. If a juror has made up
his mind before he goes into the jury-box as to how the case ought to be de-
cided, what possible difference can it make to the litigants whether such juror
has come to his conclusion from malicious motives or from prior knowledge
of the facts ? In either event the case is practically at an end, so far as he is
concerned, before the trial begins. His preconceived opinion shuts the win-
dows of his mind against the light of the tmth. "Obstinacy of character
and pride of opinion" (Black v. SUUe^ 42 Tex. 877) are quite as effectual as
actual malice in preventing an honest juror from changing his mind when he
has once fully made it up.
Ths Chabactek ov ax Opinion Ain> not its Sodbcb Detbbminbs th».
question as to whether it will disqualify one from service on a jury or not.
In other words, it is the strength of the opinion, and not the foundation upon
which it rests, which must be chiefly regarded in deciding whether, notwith-
standing such opinion, the juror can give the partiea a fair trial: Boon v. iStaUf
1 Ga. 631; WormeUya cast, 10 Gratt. 658; People v. XoAman, 2 Barb. 216.
It was held, on the other hand, in Alfred v. SUOe, 2 Swan, 581, that the
ground of the opinion was the principal consideration. It is true (and this
was probably what the court had in mind in that case), that the grounds upon
which the opinion has been formed, in such a case, are to be attentively ex*
amined, because they go far to show the probable strength of the opinion. A
July, 1841.] SlOTH V. Eameb. 523
Juror may be, and often is, vezy infelicitous in his nse of expressions describing
his state of mind. On the one hand he may speak of the opinion he has
formed as an " impression," -when in reality it is a solid and unalterable con-
clusion upon the whole case; and on the other hand he may say that he is
decidedly of this or that opinion when he really means no more than that he
has actually formed an opinion, while the opinion itself may be anything but
decided or absolute in its character. In such cases it is plain that the court,
if informed of the foundation of the opinion, that is, as to whether it rests on
"nere rumor, or on personal knowledge of the circumstances, or on hearing the
testimony, or the like, can determine, much more readily than the juror him-
self, whether the opinion is likely to be of such a nature as to influence the
juror's ultimate decision. In this sense it is highly important that the court
should look very closely at the grounds upon which the opinion has been
formed. Where, therefore, it appears that a juror has expressed a previous
opinion upon the merits of the case, it is not only the right but the duty of
the court to inquire into the circumstances, and determine, from all the sur-
roundings, whether the expression of it " was merely a casual remark or not:'*
State V. Howard, 17 N. H. 171.
Fixed OmnoN NscsaaAXtY and Suvficixnt. — In the absence of special
statutory requirements, the prevailing doctrine in the United States on this
subject is that of the principal case, that a preconceived opinion, to disqual-
ify a juxor, must either proceed from malice or ill-will against or actual favor
towards one of the parties, or must be "a fixed, absolute, positive, defi-
nite, settled, decided, unconditional opinion:" People v. StotU, 4 Park. Crim.
117; Stale v. Kingsbury, 58 Me. 238; Broum v. CommonweaUh, 2 Leigh, 709;
State v. Howard, 17 N. H. 171; MeOregg v. State, 4 Blackf. 101; PeopU v.
JTm^, 27 CaL 507; People v. Beynotds, 16 Id. 132; State v. MiUain, 8 Kev.
400; Proffiitt on Jury Trial, sec. 187. And it must be an abiding opinion:
Wright V. State, 18 Oa. 383. As stated in Pennsylvania, the rule is, that to
constitute a disqualification, the opinion entertained by a juror must be of
a "fixed and determined character, deliberately formed, and still entertained;
one that in an undue measure shuts out a different belief:" 0*Mara v. Common'
f)ealth, 76 Pa. St. 424; Staup v. Commonwealth, 74 Id. 458. Mr. Justice
Jaton, in Baxter v. People, 3 Oilm. 368, lays down this test: "If the juror is
already able to respond to the question, if put to him, so as to satisfy his own
consoienoe, *Is the prisoner guil^ or is he innocent?' then he is incompetent;
but if from not being convinced of the existence or non-existence of certain
facts, he is unable to determine that question, then he is competent." This
would seem to require the opinion to be of such a conclusive character that
the juror would be willing, before the trial, to return a verdict upon it. Such
a statement of the rule, however, is perhaps too sweeping, particularly when
applied to capital cases. It would admit to the jury-box, in such cases,
every shade of opinion as to the prisoner's guilt or innocence, short of ab-
solute conviction of the mind beyond any reasonable doubt. Judge Caton,
however, in the case last cited, qualifies the rule thus proposed by stating
that it is not necessary, to render a juror incompetent, that he ''should have
BO far prejudged the case that his mind is not still open to conviction."
If the opinion entertained by a proposed juror is positive, unqualified, and
abiding, the great weight of American authority holds him disqualified, al-
though his opinion may have been formed merely from rumor or newspaper
accounts of the matter in controversy: People v. JIdather, 21 Am. Dec. 122;
Armittead v. Commonwealth, 11 Leigh, 657, to be reported in 37 Am. Dec.;
Wormetey'e eaae, 10 Oratt. 658; Jackson v. Commonwealth, 23 Id. 919: Wrighi
S24 Smith v. Eames. [Illinois,
V. CommcnioeaWi, 32 Id. 041; People v. Beynolds, 16 OtL 129; People v. .fi^
4Mzn28, 41 Id. 640; People v. JohMton, 46 Id. 78;.<Sto<e v. Benion, 2 Dot. ft
Bat. 196. Other cases to the same effect will be referred to when we ooma
to discoss the grounds upon which disqoalifying opinions may be formed. If
the opinion entertained by the proposed joror is one upon which he openly
avows his determination to act, unless he hears something different on the
trial, it is clearly a settled opinion: Rothschild v. State, 7 Tex. App. 519.
Such an opinion responds exactly to the test proposed by Judge CSaton, in
BaaUr v. People, euprcL Kor can there be any doubt that a juror would be
disqualified by the expression of an opinion, howeTer it may have been
formed, which, by the very terms of it, indicates not only conviction of the
mind, but a malevolent spirit; as where, on a motion for a new trial, one of
the jurors was shown to have said before the trial, respecting the aecnaed,
^<Damn hi^^ he ought to be hung:" Brah^fidd v. StaU, 1 Sneed, 21& An
opinion expreased without qualification, disqualifies a juror under a statute
requiring the opinion to be "unqualified,'* although the juror himself scys that
iu his own mind the opinion was qualified: People t. CoUle, 6 CaL 228; Peo*
pie V. Edwards, 41 Id. 640. And where a juror has a "fixed** opinion at the
time of his examination, based upon conversation with witnessesy and also
tcom telegraphic reports of the facts at the time of the occurrence, he is djs-
<iualified, although he may state that if the facts should turn out to be differ-
ent, he would have no opinion: People v. Johnston, 46 GaL 78. So an opin-
ion described by the juror as a "pretty substantial'* one, disqualifies him,
notwithstanding any professed willingness to change it if the facts should be
otherwise, where it is founded upon hearing part of the testimony on a for-
mer trial: Sprrmee v. CommonweaUh, 2 Va. Caa. 375.
Light, Tbansdemt, ob HTPOTHEmuL Opinion does not DisQUAUFr.—
Light and transient opinions floating in the mind respecting a case do not ren-
tier a juror incompetent: MeOregg v. SUUe, 4 Blackf. 101. So mere impfres-
sions which the juror himself does not dignify with the name of opinions,
4md which are not likely to influence his judgment, do not disqualify him:
State V. Pike, 49 N. H. 399; UowerUm v. StaU, Meigs, 262; StaU v. MedHeott,
'9 Kan. 257; State v. Ward, 14 La. Ann. 673; Oold Mining Co. v. Katumal
Bank, 96 U. S. 640. "When one speaks of an impression upon his mind,"
«ay the court in People v. Honeyman, 3 Denio, 121, " he usually means some-
thing which does not amount to a fixed or settled opinion.*' But though the
juror may refer to his state of mind as an " impression,** if it is of such a
persiBtent character as to infiuence his judgment and to require evidence to
remove it, he is disqualified: QretnfiM v. People^ 6 Abb. (N. C.) 1; S. C, 74
N. Y. 277. So where a juror in a capital case states that he has received an
"impression unfavorable to the prisoner,'* and then in answer to further
questions says that his " prejudices are against the prisoner:*' CommxmweaUk
v. Knapp, 9 Pick. 496; S. C, 20 Am. Dec. 491. "A mere suspicion or in-
-clination of the mind toward a conclusion'' is not enough to disqualify a
juror: Peo]^ v. Reynolds, 16 Oal. 132; Staie v. MiOain, 3 Nev. 409. "The
atate of the mind must be more decided. He must have reached a con-
clusion like that upon which he would be willing to act in ordinary mat-
ters:" People V. Reynolds, 16 Cal. 132, per Baldwin, J. Where the juror
aays that he has formed no opinion or impression about the case, but has a
" belief" as to the guilt or innocence of the accused, he evidently refers to a
state of mind which amounts to no more than a mere suspicion, and is there-
lore not disqualified: State v. Medlicott, 9 Kan. 257. Although in ordinary
ftsage "belief" imports a mental state much more decided in its charactet
9
July, 1841.] Smith v. Eames. 52&
than 18 indicated by the word opinion. If the jnzor says he " believes**
he has formed, bat not expressed, an opinion, but thinks it would not
inflnenoe his vardiot, he isnotdisqnflJified: Reynolds v. United SUUes, 98 U. S.
145. So where the jnzor says he "rather thinks" he has formed an opinion,
Drnses other expressions indicating a want of certainty in his own mind as ta
whether he has any opinion or not: People v. SUnU^ 4 Park. Grim. 71. So-
where he says he has formed a " partial opinion," bat not "a positive opin*
ion:" EoU v. People, 13 Mich. 224. Remarks made in jest at the time of the
trial for the purpose of escaping service on the jazy, however groasly im-
proper, and whatever bias they may apparently disclose, do not constitate
soch expressions of opinion as will render one an incompetent jaror: John v.
State, 16 Ga. 200; Moughon v. State, 59 Id. 308.
It is perfectly well settled that a hypothetical opinion founded upon news*
liaper or other reports of the facts of a case, and dependent upon the truth
or falsity of those reports, constitutes no disqualification, unless there is act-
ual, though it may be unconscious bias: People v, Mather, 21 Am. Dec. 122^
Oeiander v. OommonweaUh, 24 Id. 093; People v. Reynolds, 16 OsL 129;.
StaUr. Potter, 18 Conn. 166; Leaeh v. People, 63 DL 311; BurkY. State,
27 Ind. 430; Staie v. Saier, 8 Iowa, 420; StaU v. Ostramder, 18 Id. 435;.
State V. MedUcoU, 9 Kan. 257; Staie v. Kingsbury, 58 Me. 238; StaU v.
Flower, Walk. (Miss.) 318; StaU v. Johnson, Id. 392; Lee v. State, 45 Miss.
114: Mann ▼. Glover, 14 K. J. L. 195; DwrtU v. Mosher, 8 Johns. 445; ^ree^
man v. People, 4 Denio, 9; People v. Fuller, 2 Park. Grim. 16; People v.
MaUon, 3 Laos. 224; Thomas v. People, 67 N. T. 218; 0*Mara v. Common-
wealth, 75 Pa. St. 424; Epet^ case, 5 Gratt 676. That judicial equipois*
which is necessary to constitute a good juryman is not at all disurbed by a
merely hypothetical opinion, unmixed with any degree of prejudice, whicb
depends for its validity upon the truth of a narration ofi the supposed facts.
Indeed, if such opinions were admitted to constitute a disqualification for
jury duty, it would be impossible in many cases to get a jury outside of aa
asylum ior the idiotic. Every thinking mind, upon the most meager state-
ment of the facts of a case, is apt to form these contingent, floating opinions.
Indeed the mere reading of an indictment or of the pleadings in a case ia
enough to set the active mind at work framing conjectures as to the facta
and building theories thereon. Probably every juryman who goes into the-
jury-box carries with him some vague hypothesis that if the facts turn out
so and so it will be his duty to find this or that verdict, and as the trial pro-
ceeds his mind is busy forming new theories, changing like the figures in a
kaleidoscope, with every turn of the case, until at last it settles upon a defi-
nite conclusion.
In some cases it is held that even a hypothetical opinion will disqualify a
juror if he a£Brms that he believes the account upon which the opinion ia
based: Oray v. People, 26 111. 344. But it is said in Ommdtr v. Comnum-
wealtii, 24 Am. Dec. 693, that such an opinion is no disqualification, even
though the juror says he has no reason to doubt the truth of what he haa
heard. See also, to the same purpose. Stale v. Williams, 3 Stew. 454; People v.
Hayes, 1 Edm. 582. It seems to us that if the opinion is really hypothetical^
depending upon the truth or falsity of a hearsay report of the assumed facts,
it ought not to render the jaror incompetent whether he credits what he haa
heard or not.
Most of the cases holding hypothetical opinions to be no disqualification
refer especially to opinions based upon mere rumors or newspaper accounta
of the facts. There are cases, however, in which it has been determined
Ihat a hypothetical opinion formed from hearing part of the evidence on a
526 SxTTH V. Eames. [Illinois,
former trial of the same cause or of another nmflar cause, is no disqoalifica-
tion: Sprouee v, Commonweaith, 2 Va. Cas. 376; Lycoming Fire Int, Co. y.
Ward, 90 111. 645. It may well be donbted whether this is not carrying the
doctrine as to hypothetical opinions too far. If the jnior has formed an
opinion from testimony, and not from hearsay, although he may say that if
the facts should turn out to be different on the present trial, his opinion
would not influence him, has he not in fact prejudged the case? An opinion
formed in part upon conversation with witnesses, which the juror stated
would require evidence to remove, was held a disqualifioation in People v.
JohmUm, 46 Gal. 78, although the juror said that if a different state of facts
should be proved he would have no opinion.
The fact that an opinion is described by the juror as positive, if the facts
are proved to be in accord with the rumors npon which he has based it, and
that he professes a determination in that event to adhere to it, does not ren-
der it any the less hypothetical, if it is clearly dependent upon the truth or
falsity of the rumors, and there is no prejudice in the juror's mind, and the
opinion has not in fact become so decided as unconscionsly to influence him:
McOunt V. OommontooaUh, 2 Bob. (Va.) 771; Efpea' ease, 6 Gratt 676; Clore*9
ccue, 8 Id. 606; O^Mara v. CommomoeaUJif 76 Pa. St. 424. But where it is
left doubtful by the juror's examination in a capital case, whether an opinion
founded upon rumors, and dependent upon their truth or falsity, has not ac-
quired such strength and such influence upon his mind that he can not sit in-
different, he should be rejected: People v. MaUon, 3 Lans. 224.
In all that has thus far been said as to hypothetical opinions not being a
good ground for challenge, reference has been had to a challenge for principal
cause. In those states in which a distinction is made between challenges for
principal cause and challenges to the favor, a hypothetical opinion upon the
merits of a cause, though not a ground of principal challenge, may unques-
tionably be oonsiderea by the triors in determining whether or not there is
actual bias in the juror's mind: Dreeman v. Peopkj 4 Denio, 9. As was said
by Baldwin, J., in People v. lieynolde, 16 CaL 129, a mere hypothetical opin-
ion " is not a rule of exclusion, but may be a cause."
Whsthxb the Opiniok is Such as to Inflitence the mind of the juror
in making up his verdict is the real point of inquiry. If the opinion is fixed
and positive, there can be no question as to the juror's incompetence. But if
the opinion is not of this character, and if the juror is able to say that^ not-
withstanding what he has heard and read, and nothwithstanding the impres-
sion he may have formed, he can try the case fairly and impartially upon the
evidence and upon that alone, and a true verdict render, he is a competent
juror, if otherwise qualified to sit: Oold Alining Co, v. National Uank^ 96 U.
S. 640; EckeH v. SL Louie Tranter Co., 2 Mo. App. 36; State v. Davie, 29
Mo. 391; United States v. Reynolde, 1 Utah, 319; Little v. Commonweakh, 25
Gratt. 921; Epee* ease, 6 Id. 676; Lohman v. People, 1 N. Y. 379. And this
is the statutory test in New York under the act of 1872, which has been pro-
nounced constitutional: Stokes v. People, 63 Id. 164; S. C, 13 Am. Bep. 492;
Thomas v. Peojde, 67 Id. 218; Phelps v. People, 72 Id. 334; Peoj^ ex ret.
Tweed v. Liscomb, 3 Hun, 760. In that state, therefore, if the juror is able
to say that he thinks he can try the case fairly, notwithstanding any opinion
he may have formed or expressed, he is qualified. In Colorado the statutory
rule IB, that a preconceivbd opinion does not disqualify a juror, if the court U
satisfied from his examination on voir dire, or from other evidence, that a«
will render an impartial verdict; and under this statute every challenge on
the ground of a former opinion is a challenge to the favor, triable by the court,
July, 1841.] Smith v. Exwsa. 527
«nd ito deoisioii is not reriewable on error or appeal: Jones v. People, 2 GoL
351. Other cases to the effect that a jnzor Is not rendered inoompetent by a
preoonceiYed opinion, if he professes his ability to try the case furly notwith-
standing such opinion, will be presented in disofismng opinions founded upon
rumors or newspaper reports. If the opinion is a decided one, the fact that
the juror believes he can act impartially does not help the case, and he is
clearly incompetent, unless there is a statute to the contrary: State v. Benton ,
2 Dev. ft Bw 19d. Professions of impartiality in such a case, should inorease
rather than diminish the distrust which the avowal of opinion excites. As
has been often remarked by the bench and bar, the most inveterate prejudice
is often loudest in its protestations of fairness.
Vtom the rule that in order that a preoonoei ved opinion may not disqualify
it must appear that it wffl not influence the juror's verdict, it would seem to
follow as a ooroUary that the opinion must not be such as to require evidenoe
to remove the impression of it. It has accordingly been determined in a
number of cases that if the opinion is such that it will require more or lees
evidenoe to satisfy the juror tiian would be necessary if he had no such opin-
ion, he is inoompetent: Fahneetoek v. SkUe, 23 Ind. 231; Caneemi v. People,
16 N. T. 601; Black v. State, 42 Tez. 377. So, even though the juror says
that he believes that he can try the case impartially: Samy. State, 13 Smed.
ft M. 189. So in Michigan, notwithstanding the existence of a statute like
the Kew York act of 1872: Stephens v. People, 88 Mich. 730. It must be
confessed, however, that there are strong cases to the contrary. Thus, m
State V. Lawrence, 38 Iowa, 51; State v. Millam, 3 Nev. 409, and Ortwein v.
Commonwealth, 70 Pa. St. 414» it was determined that jurors stating that they
had formed opinions which it would require evidenoe to remove were never-
theless competent if they were able to say that they believed that, notwith-
standing such opinions, they could try the case as impartially as if they had
never heard of it To the same effect are WofrmeU^e caee, 10 Gratt. 058, and
Oris8om t. State, 4 Tex. App. 374. In the case of Ortwein v. OommonweaiUh,
76 Pa. St. 414, Agnew, C J., delivering the opinion, says: '*That evidence
would be required to change their first impressions has but little weight.
Such must always be the fact even in the case of slight impressions or loose
opinions. An impression once formed necessarily exists until something else
i^anges it. The inquiry, therefore, turns upon the character of the opinion.
Is it a prejudgment of the case T Has it sudi fixedness and strength as will
probably influence and control the juror's verdict T or has it been f onped upon
the same evidence substantially as will be given upon the trial ? Much weight,
therefore, is to be given to the judgment of the court below, in whose pres-
enoe the juror appears, and by whom his manner and conduct^ as weU as his
language, are scrutinized."
There is much plausibility in these remarks, but they do not appear to us
to be conclusive upon the question. It is exceedingly difficult to comprehend
how an honest juror, who really understands what he is saying, can declare
that he has an opinion that it will require evidence to remove^ and at the
* same time state that he can try the case impartially, without being influenced
by that opinion. An impression which it requires evidence to remove, is
itself an influence which must have some effect in determining the final ver-
dict. How can it be said that a juror is not influenced by his preconceived
opinion when the existence of that opinion makes it necessary to produce
more evidenoe to satisfy him than to satisfy a juror of the same capacity who
has no such opinion to overcome? He is handicapped, as it were, by his
opinion. In a criminal case, for instance, the presumption of law is that the
accused is Innooent. He enters upon the trial with that presumption in his
628 Smith t;. Eames. [Tllinoia^
favor. Bat if one or more of the jaroro have formed an opinion beforebaod
that he is gailty, that presamption of innocence ie abeady overcome, so &r
as those jorors are concerned, and less evidence than would otherwise be r^
quired, is necessary to satisfy those jnrorB of the prisoner's guilt. As was-
said in Black v. SkUe^ 42 Tex. 377, *' a weight is pat in the scale of jastice
before the trial oonmienoes." Sarely it can not be said, in sach a case, that
the reealt is' not inflnenced by an opinion which thos weights the balance.
The rale in Indiana is, that if the Jaror's preconceived opinion will
** readily yield " to the evidence, and will not probably inflaence him after
bearing the testimony, he is not disqaalified: Fahneatock v. States 23 Ind. 231;.
ScranUm v. SUwart, 52 Id. 68; OueUg v. State^ 66 Id. 04; S. C, 32 Am. Bep.
00. This rale is rather eqoivooaL If it mesne that the opinion most be sach
that it reqaires only a little evidence to overcome it, it woald seem to be ob-
nozioas to the objection above stated. The coarts of that state, howew,
regard it as eqaivalent to the rale that the opinion, in order to constitate no>
diaqaalification, mast be sach that it reqaires neither more nor less evidence
to satisfy the jaror: Morgan v. SuOe^ 31 Ind. 103; Oltm v. 8UUe^ 33 Id. 418;.
8. C, 42 Id. 420; 13 Am. Bep. 860; Oluek v. iSitate,40 Id. 263. Thos stated,
the rale is consistent with what we conceive to be soand doctrine.
Opinxok vbok Hbariho TxarxMomr, CSonvbrsiko with WmnasBB o&
Pabius Fakiuab with thx Faot8» xto.— Where the opinion of a jnror is
f ocmed apon a personal knowledge of the facts, or apon information derived
from witnesses or from those possessing sach knowledge, it is safficient to die-
qoalify him, if positive in its natare: People v. Maimer, 21 Am. Dec 122;
JBx parte VemUyeti, 6 Cow. 665; S. C, 7 Id. 108; NorfioA v. QUO/t^ 4 Sneed,
840; Quesenierr^ V. SUOt^ 3 Stew, h, P. 308. See also RoOkM v. Amu^ 0 Am.
Dec. 70. So an opinion acqaired by conversing with jarors who sat npon a
previoas trial of the same caase: Ned v. StaU^ 7 Port. 187. So espeoially
where the jaror himself sat as jaror on a previoas trial, thoagh the cause waa
then only partly tried: Wetke v. MedUr^ 20 Kan. 57. So where the opinion
is formed from hearing the evidence on another trial of the defendant for an-
other offense, when the same evidence woald tend to convict him of the
second offense: SUAt v. Webster, 13 N. H. 491; or from hearing the evidence
on the trial of another party for the same offense, where sach evidence, if
oncontradicted, woald be condasive against the party now on trial: State v.
AndereoUf 5 Harr. (Del ) 403. Where a jaror has formed his opinion apon
actual knowledge of the facts or upon information derived from hearing the
evidence on a former trial, or from conversing with the witnesses, it is a dis-
qualification even thoagh the juror declares his belief that notwithstanding
such opinion he can try the case impartially: Jackeon v. ComnumweaUh, 23
Gratt 010; AmUetead v. CommontoeaUhy 11 Leigh, 657; S. C, 37 Am. ]>ec.;
Black V. State, 42 Tex. 377; Goodwin v. Blachley, 4 Ind. 438. So an opinion
acquired by reading the report of the testimony taken on a former trial of
the same cause, notwithstanding the New York statute of 1872, before re-
ferred to: Oreenjield v. PeopU, 74 N. Y. 277; S. C, 6 Abb. (N. C) 1. So in
Ohio, under the statute of February 10, 1872: Fraxier v. State, 23 Ohio St.
551. An opinion thus formed, from hearing or reading the evidence, can
scarcely be regarded as otherwise than substantial, notwithstanding the
juror's declaration of his belief that he can try the case fairly: Jackeon v.
Commonwealth, 23 Gratt. 010. In Nebraska, it is expressly provided by
statute that a juror, having formed or expressed an opinion foonded apon
conversations with witnesses, or from hearing them testify, or reading re-
ports of their testimony, he may be successfully challenged for principal
eaose: Curry v. State, 6 Neb. 412.
July, 1841.] Smith v. Eahes. 629
A juror is not, however, neoeasarily disqnalifiod by an opinion formed fimn
hwiring or reading the testimony of witnesses, or from hearing what purport
to be the facts from persons in whom the jnror has confidence, if the opinicm
is not in fact a decided one, and the juror belieTes that notwithstanding such
opinion he can try the case fairly: Pollard v. Commonwealth^ 6 Band. 659;
Ja/ekmm v. CommonweaWi, 23 Gratb. 919; People v. Emg, 27 Cal. 507. So
where the jnror says that the opinion might influence him, bat he thinks it
will not: Monroe v. State^ 23 Tex. 210. If the joror has conversed with wit-
ncssee but has formed no opinion, he is, of coarse, not disqualified: Hwmaon
V. People^ 24 ILL 60. So^ where he has acted as coroner and heard part of
the testimony in the case, but has formed no opinion: 0*Connor v. State^ 9
Fla. 215. Indeed, a juror can never be disqualified by what he has heard of
a case, if he has formed no opinion upon it: OomfmonweaUh v. Thurston^ 11
Qray, 57; State ▼. Howard, 17 N. H. 171; Hoy v. Staie^ 2 Kan. 405. So
where the juror has sat on the jury, or otherwise heard the testimony on the
trial of a co-defendant of the prisoner, now on trial, but has not formed any
opinion as to the gailt or innocence of the prisoner: United States v. WUmm,
Bald. 78; Noe v. StatCt 4 How. (Miss.) 330. So where he has sat on the jury
or heard the testimony on the trial of another action, between the same par-
ties, where the cases have no relation to each other: Algier v. Steamer Maria,
14 Gal. 167; CommonweaUh v. HtU, 4 Allen, 591. Of course if a juror has
once known the facts, and has formed a definite opinion thereon, the fact that
he has f oigottom the circumstances will not remove his disqualification, for as
soon as the facts are again brought to his knowledge the probability is that
his dormant opinion will revive: Eebert v. St. Louia Tranter Co., 2 Mo. App.
36.
Ophqovs Fobmkd wbou Rumobs, Nxwspapxb Aoooxtmts, xra — An opinion
formed upon rumor or hearsay accounts of a transaction, whether printed or
not, must necessarily partake somewhat of the character of the information
upon which it is founded, and be more or less unsubstantiaL It is almost the
universal rule^ therefore, that an opinion so formed shall not be regarded un-
less it has become absolutely fixed in the mind. The presumption is, that
such an opinion is hypotheticaJ, because every person of common understand-
ing knows that the rumors or reports upon which it is founded are as likely as
not to be incorrect: dor^e ease, 8 Gratt. 606; Jaekwn v. CommtmweaJUh, 23 Id.
919. The law will not intend that an intelligent juryman will form a fixed opin-
ion, afieoting the lives and property of his neighbors, upon so unstable a foun-
dation, unless it clearly appears to be so. "Rumor,** says Buffin, C. J. , in State
V. EUmgtan, 7 Ired. 61, "is so proverbially false, it would seem, that no man
with sense enough to sit on a jury in any case, could found upon it an opinion
affiBcting the person or property of another that would stand one moment in
opposition to evidence, given on oath in a court of justice, or on which he would
pass the judgment of the law without evidence duly given."
It is therefore the rule in nearly all of the United States that an opinion
founded upon rumor or newspaper accounts shall not disqualify a juror if he
is able to say that, notwithstanding his opinion, he can try the case fairly and
impartially upon the evidence uniufiuenced by that opinion: State v. WHUaane,
3 Stew. 454; People v. MeCaidey, 1 Gal. 379; StaU v. Anderson, 5 Harr. (Del.)
493; O'Connor v. State, 9 Fla. 215; Montague v. State, 17 Id. 662; Van VaeUr
V. MeKelUp, 7 Blackf. 578; Clem v. State, 33 Ind. 418; a G., 42 Id. 420; 13
Am. Bep. 369; Onetigv. State, 66 Ind. 94; S. G., 32 Am. Bep. 99; State v. Caul-
field, 23 La. Ann. 148; State v. Bunger, 14 Id. 461; Waters v. State, 51 Md.
430; UMehy. People, 39 Mich. 245; Statey.Dams,29Mo. 391; Ourr^Y. State,
Am, Dae. YoL. ZZZYI— M
630 Shtfu v. Eambs. [Ulinou^
5 Neb. 412; Sanchez v. People, 4 Park. Crim. 535; People v. HtMjfee^ 1 Edm.
682; Betlbo v. People, 19 Hun, 424; State v. ElUngUm, 7 Ired. L. 61; State v.
Bone, 7 Jones' L. 121; SUUe v. Cowman, 2 Winsi. 95; Stote ▼. CoUnu^ 70 K.
C. 24; S. C, 16 Am. Rep. 771; Cooper ▼. <9tote, 16 Ohio St. 928; Commonwea/M
V. Lenox, 3 Brewst. 249; 0*Mara v. CommonweaUK, 75 Pa. St. 424; Oris/WH
y. State, 4 Tex. App. 374; Brown v. <7ommo»t0tfaZ^, 2 Leigh, 769; Worjndtffe
eaee, 10 Oratt 658; Pfop/e v. Johneon, 2 Wheeler's C. 0. 361. Other cases to
the same effect axe cited under previous heads in this note. It is the settled
rule in Tennessee that an opinion formed merely upon public rumor shall not
disqualify a juror: Mc^or v. State, 4 Sneed, 597; Moaee v. State^ 11 Humph.
232. So held even where the juror declared that he believed the nmot and
could not do otherwise, and " had a bias in his mind, and had had it ever sinea"
he had heard the rumor: Alfred v. State, 2 Swan, 581. By a late statute,
the legislature of that state provided that no juror should be disqualified
by any opinion based upon public accounts of the case, but this statute has
been declared uncoostitutioDal, because it infringes the right of a party to a
trial by an impartial jury: Ekieon v. State, 6 Bazt. 466. There is a growing
inclination in courts and legislatures to the doctrine that an opinion formed
from reading newspaper accounts of a case ought never to be a disqualificatioii
unless it has produced such bias in the mind of the juror that he feels that he
can not try the case impartiaUy. Such a rule seems almost a necessity in a
country where newspapers are so much read as here. To hold otherwise Is
tantamount to makingilliteracy or ' ' stupidity the test of capacity, " as was very
tersely stated by Mr. Justice Cooley in discussuig another phase of this sub-
ject: Stewart v. People, 23 Mich. 63. A distinction is to be made, however,
between newspaper accounts generally, and newspaper reports of the testi-
mony taken at a former hearing of the case, particularly where those reports
are stenographic In the latter case an opinion formed upon such report must
necessarily have much greater solidity. Of course where a juror has merely
read the newspaper accounts of the case without forming any opinion, his
competency does not admit of question: United StaUe v. McHenry, 6 BlatchL
603.
In Vermont an opinion formed from a newspaper account disqualifies a
juror even though he declares that he can try the case impartially. The
courts will not require the parties to run the risk of his doing so: State v.
CUurh, 42 V t. 629. Under a statute formerly eTisting in Geoigia, an opinion
formed from rumor respecting the guilt or innocence of the defendant in a
criminal case was a diBqualification: Reynohh v. State, 1 Ga. 222; AHderwn
V. State, 14 Id. 709. It was so determined also in an early case in Iowa:
WaU'koto-chaMHMeh-haw v. United States, Monis, 332. No doubt a decided
and settled opinion formed from mere rumor or newspaper accounts cf the
matter, ought to be deemed a disqualification for service on a jury, as has
already been stated elsewhere in this note: Metier v. State, 19 Ark. 156;
Wright V. Commonwealth, 32 Gratt. 941. Says Lumpkin, J., in Boon v. Slate,
1 Ga. 631: " The most inveterate impressions, such even as will not yield to
' oontirmation strong as proof from Holy Writ,' are not unfrequently created
by rumor; and if an opinion be thus firmly tooted iu a mind so weak or wicked
that it wUl not yield to the force of testimony," it ought to be a disqualifica-
tion.
Opinion itpon Pabt op Case. — An opinion formed upon one or more of the
ciateriol facts of a case certainly ought not to disqualify a juror unless it
plainly appears to be of such a nature as to influence the juror in determining
upon his verdiot upon the whole case. Thus, in a murder case it is unques-
July, 1841.] Smith v. Eames. 631
tioiiably a material fact that there shonld have been an unlawful killing, and
yet it would be absurd to say that a juror who believed or even knew that
the deceased had been killed, should be deemed disqualified, although he had
formed uo opinion as to the gult or innocence of the accused: Oargen v.
Pfople, 39 Mich. 549; Ogle v. StaU^ 33 Miss. 383; Wau-kon^hauo-neek-kcuc v.
Uiutfd Slates, Morris (Iowa), 332. So of au opinion that any other crime has
been committed, but not as to whether the defendant was the i^erson who com-
mitted it: Friery v. People, 2 Keyes, 424; StewaH v. Peopfe, 23 Mich. 03.
So in a murder case, an opinion that the prisoner did the killing does not nee-
essarily disqualify, because every killing of a human being is not murder:
Lowenbenj v. Peoplr, 27 N. Y. 336; State v. Thompaon, 9 Iowa, 188. So,
generally, an opinion as to any other material fact in the case which does not
of itself involve a determination of the whole case: Loyd v. State, 45 Oa. 57;
Smith V. Floyd, 18 Barb. 322; Morgan v. Stevemon, 6 Ind. 169; MeOomaa v.
Oowenant etc. Ine, Co., 56 Mo. 573. But though the opinion is only as to the
existence or non-existence of some of the material facts, it will disqualify the
juror if those facts are so related to the case as to render an opinion substan-
tially the same as an opinion upon the whole case. Thus where a prisoner was
on trial for perjury in swearing to an aUbi in a case of arson, an opinion that
the person accused of the arson was guilty, necessarily involves the falsity of
the aJUbiy and is therefore almost tantamount to an opinion that the defendant
is guilty of perjury, and the juror entertaining such opinion is incompetent:
Brown v. State, 57 Miss. 424. So where a party is on trial for bringing Texas
eatUe into the state and communicating disease to domestic cattle, an opinion
entertained by a juryman that Texas cattle will communicate disease to do-
mestic cattle though they have no such disease themselves, disqualifies a
juror, because that fact goes far to determine the whole case: Davis v. WaUcer^
60 III. 452. Of course where the statute makes an opinion as to any material
fact in the case a disqualification, a juror in a murder case who believes that
the prisoner " killed*' the deceased is incompetent: StaU v. Brown, 15 Kans.
400. The better rule is, no doubt, that the question as to whether or not an
opinion upon part of the case wiU disqualify a juror, ought to be left to the
discretion of the court: Dew v. McDantt, 81 Ohio St. 139.
Opinion upon Lboal Qusstion is in general no disqualification: Heath v.
Commonwecdthf 1 Bob. (Va.) 735. Thus a juror was held in PettU v. Warren,
Kirby, 426, not to be rendered incompetent to sit in an action for assault and
battery, where the defense was, that the prisoners were merely arresting the
complainant as a runaway slave under a state law prohibiting slaves from
traveling outside their towns without a pass, where such juror declared that
Id his opinion " no negro, by the laws of this state, could be holden a slave."
So an opinion of a juror in an action against the agent of a foreign insurance
company to collect a tax prescribed by law with respect to the right of for-
eign insurance companies to do business in the state on the same terms as
local companies, such opinion not being shown to be connected in any way
with the merits of the case: J/ughes v. City of Cairo, 92 111. 339. But an
opinion of a juror that a law under which a prosecution was instituted was
unconstitutional, was held to render him incompetent, where at the time "it
had not been judicially determined that the jury had not the right to pass
Qpou the law:" CommoMvealth v. Austin, 7 Gray, 51. On the other hand, an
opinion in such a case that the law is constitutional, or is "a good law,"
would be no disqualification, because such opinion merely accords with the
legal presumption, and is such as every good citizen is generally supposed to
entertain: Commonwealth v. Abbott, 13 Mete. 120; MeNaU v. McClure, 1
532 Smith v. Eames. [Ulinoh
Lans. 32. Of coarse, an opinion npon an abstract question as to whethei* a
particalar act ought to be punishable by law, or as to the suitability of the
prescribed punishment, is wholly immaterial in a trial under the law, and
questions upon that point axe properly excluded: ConvmonweaUk v. BusuUt
16 Pick. 163. But in a prosecution for burning a convent, an opinion of a
juror that it is not a crime to bum convents is bias, and disqualifies such
juror: Id. So in a trial for polygamy, the fact that some of the jurors an
themselves polygamists, believing in tiie sanctity of the institution, is suffi-
dent to render them incompetent: Reynoids v. United Statu, 98 U. S. 145;
8. C. in court below, 1 Utah, 226.
CSoNBGDENnona Sgkutlbs against returning a verdict of guil^ on cizcom-
stantial evidence, or on any evidence where the ofifonse is punishable with
death, dearly constitute bias against the prosecution, and the general rule in
most of the states, established either by judicial decision or by statute, is,
that a juror is thereby rendered incompetent to sit in a capital case: StalU v.
State, 28 Ala. 25; WUUama v. State, 3 Ga. 453; Cfatea v. People, 14 HL 433;
Fahnestoek v. State, 23 Ind. 231; OrtenXey v.State, 60 Id. 141; StaUv. Nolan,
13 La. Ann. 276; State v. Jewell, 33 Me. 583; Jonee v. State, 57 Miss. 684;
State V. West, 69 Mo. 401; O'Brien v. People, 36 K. T. 276; Martin v. State,
16 Ohio, 364; She^er v. State, 7 Tex. App. 239; State v. Waird, 39 Yt. 225;
Olore'& eaee, 8 Gratt. 606. It i» otherwise, however, where the juror dedans
that notwithstanding Ids scruples he thinks he can do justice between the
state and the prisoner: WiHiams v. State, 32 Miss. 389. So when the juror
is merdy opposed to capital punishment upon prindple, but has no oonsden-
tious scruples npon the subject: People v. Stewart, 7 Gal. 140.
Pbsjxtdigs against Pa&tioulab OnrxNBBS does not disqualify a juror
from sitting on a trial for such an offense when he has no bias against the
party on trial, and when his preconceived opinion does not in the natun of
things xndude the particular case: Davis v. Htmter, 7 Ala. 135; WilUama v.
State, 3 Ga. 453. As when the juror bdongs to an association for suppress-
ing the particular dass of crimes for which the prisoner is indicted: Mfukk
V. PeopU, 40 m. 268; Boyle v. People, 4 Ool. 176; S. a, 34 Am. Bep. 76.
But if the juror's pnjudice necessarily includes the particular case, it is oth-
erwise; as when a juror, called to dt upon an indictment for nuisance for
maintaining a particular mill-dam, entertains an opinion that all mill-dams- in
that part of the country an nuisances; Orippein v. People, 8 Mich. 117.
Bias aoaikst Pabtt's Gallimo or Baoe does not disqualify a juror if
then is no pnjudice against the party himself, or if such bias is not so vio-
lent as necessarily to sway the judgment in the particular case; as where, on
a trial under what is known as the " dvil damage law," holding liquor-seUen
responsible for the damages occadoned by the drinking of liquon sold by
them, a juror states that he has a prejudice against the traffic, but not against
the persons engaged in it, and professes his willingness and abiUty to act im-
partially in the particular case: AJbrecht v. WaXher, 73 111. 69; Rolrinaon v.
BandaU, 82 Id. 521. So where a dmilar pnjudice is entertained by a juror
called to try an indictment for keeping open a tippUng-shop on Sunday: Kroer
V. People, 78 Id. 294. But if the juror's pnjudice against the business is so
violent that he is willing to do anything in his power to suppress it " short of
raising a mob,'* and declares that *' he has no sympathy at all for a man who
will go into that kind of business," he is incompetent to sit: AVbreehl v.
WaJQoer, 73 Id. 69. A pnjudice against theaters is not ground for a chal-
lenge for prindpal cause in an action for libel for charging a party with main-
taining a theater of a low and vidous character, but it may be a ground ni
July, 1841.] Smith u Eames. 533
cbaUange to the favor: MardKek ▼. OauldweU, 2 Abb. Pr. (N. 8.) 4(^7; S. C,
5 Bob. 660. The fact that a joior aaya he does not " think much of the
Italiana*'* bat belieree that he can act impartially, does not disqualify him
from aittiag upon the trial of an Italian: Baibo v. People^ 19 Hun, 424.
Opnnoir that tbb Chabaotxb ov the Accused is Bad, or that he is a
** bad man," does not disqualify a juror from sitting in a criminal case if he
• declares himself free from bias, and states that he thinks he can try the case
impartially: Peopte t. Moloney, 18 Oal. 180; People v. Alien, 43 N. Y. 28;
Momroe t. State, 23 Tex. 210; Andenon v. State, 14 Ga. 700. " If it should
be [a disqualification], notorious offenders could not be tried at all:" People ▼.
Lohman, 2 Barb. 216.
Qpizaoir that Djoyndant has bsbn SumaoNTLT Punishbd already,
' where a civil action is brought against him for a wrong for which he has
already been indicted and punished criminally, disqualifies a juror: Admry
Life Ine. Co, ▼. Warren, 66 Me. 523; S. C, 22 Am. Eep. 580.
Whsthxb Ofikion must be Ezfsesssd. — In the early cases it is notice-
able that in order to disqualify a juror on the ground of a preconceived opin-
ion it was held to be requisite that such opinion should be both formed and
expressed: Hudgins ▼. State, 2 Ga. 173; Baker v. State, 15 Id. 498; State v.
Qodlfirey, Brayt. 170; Boardtnan ▼. Wood, 3 Vt. 570; Blaise t. MiUepaugh, 1
Johns. 316; Proflktt on Jury Trials, sea 183, and note. And it is still the
rule in Vermont that the opinion most be expressed in order to disqualify the
juxor: State ▼. Clark, 42 Vt. 629. But no such rule exists now in other states.
n the juror has formed a settled opinion, though he has not expressed it, it
is enough: ArmUtead t. Commonwealth, 11 Leigh, 657; S. 0., 37 Am. Dec
And the inquiry made of a juror on his voir dire is as to whether or not he
'* has formed or expressed" an opinion upon the case: United States v. YTtl-
eon, Bald. 78. This is logical, too, for the real question is as to the juror's
state of mind, and not as to what he may have said about the case. Indeed,
the most inveterate and deadly prejudice is more likely to be concealed than
expressed. Still it is always important to know whether the juror has ex-
pressed his opinion, on account of the evidence that fact furnishes to the sta-
bility of that opinion. Mr. Proffiiitt professed himself unable to see why it
should ever have been required that the juror's opinion should have been ex-
prsssed in order to disqualify him: Pro£D»tt on Jury Trial, sec 183, note.
There are, as it seems to us, at least two reasons for the establishment of
such a rule originally. In the first place, it was formerly held (and is still in
some cases) that a juror in a criminal case could not be himself examined on
his voir dire as to whether or not he had formed any opinion upon the case,
for the reason that if the question were answered in the affirmative it tended
to the juror's disgraoe, as it would be highly dishonorable to form such an
opinion without hearing the evidence: State v. If orris, 1 Am. Dec 664; State
V. Crofds, 23 Id. 117, and note Hence, the only way of arriving at the ju-
ror's state of mind was to examine other witnesses, and such witnesses of
course could not know anything about the juror's opinion if he had not ex-
pressed itw Another reason for the establishment of the rule requiring the opin-
ion to be expressed, a reason which still makes it an important fact that there
should have been such expression, is found in the well-known psychological
truth that until an opinion has been put into words it does not acquire such
fixity as to be difficult to overcome. Indeed there are some mental philoso-
phers who hold that language is so far necessary to clear thought that until
an idea has been put into words, at least in the mind of the thinker, it has no
definite existence at all, but is " without form and void."
634 Jamison v. Beaulien. [Illinoia^
BuBDSK 07 Pboov IS UPON THE CHALLEir6E& to determine that a jniorV
pfreoonoeiTed opinion is of snch a nature as to disqualify him: Morgan ▼. Sie-
veiwon, 0 Ind. 169; HciU v. People, 13 Mich. 224. Bnt in criminal cases, if
there is any doubt as to the juror's competency, the aocused should have the-
benefit of it: Freeman ▼. People, 4 Deoio, 35; HoU v. People^ 13 Mioh. 224;
Bhck V. State^ 42 Tex. 377.
Thb principal cask is ths lbadino oass in UlinoiB on this subject: Leaeh
▼. People, 63 HI. 311, and is very frequently cited, not only in the courts of
that state, but elsewhere.
AfRDAVITS 07 JtTBOBS TO IJCPBACH VXBDIOT, AnMTMTBITJIT 07: See CfroW-
ford T. StaU, 24 Am. Dec. 467; MXUdffe ▼. Todd, 34 Id. 616; BernieU ▼. Baher^
Id. 666, and other cases in this series and elsewhere cited in the note thereto.
Affidavits of Jurors that they misapprehended the instructions, are not
sibls in support of a motion for a new trial: Tifler ▼. Sl«9en», 17 Id. 404.
JaMIBON t;. BBAUBIBIf •
p BoAMmam, 11S.1
▼AUDlTr 07 GnnnTlOATB 07 PbK-KMPTION MAT BB XuPXAOBaD in e|SetflUBt
hnmi^t by the pre-emptor against a party in poaswiifan under tiie sn-
tfaority of the United States, by evidence of fraod and ooUnsion bofewea.
the pirs-emptor and the officsn granting the certificate» the latter know-
ing the land not to be subject to pre-emption.
OouBSS 07 Law and Bquzit batb OoNOOBBBrr Jubibdioxiov in oases of
fraud.
Ebbob to Cook oounly drouit court in an action of ejeotmeni
brought by the plaintiff b lessor, to recover certain land claimed
by him as a parchaser by pre-emption. The purchase ^vaa
proved, and the defendant, who was in possession under the
authority of the United States, offered evidence to show that
the pre-emption was obtained by fraud and collusion between
the pre-emptor and the officers who granted the certificate, the
latter well knowing that the land was part of a military reserva-
tion. The evidence was rejected. Verdict and judgment for
the plaintiff, and the defendant sued out this writ, the principal
error assigned being the exclusion of the evidence above men*
tioned.
B. 8. Morris, J. BuUerfield, J. H. CoUvna, and D. J. Baher^
for the plaintiff in error.
CHlea Spring and F. Peyton, for the defendant in error.
By Court, Smith, J. This case is brought up from the drcuii
court of Cook counly , on a writ of error. Numerous errors are
assigned, predicated on the exclusion of various matters, offered
to be given in evidence by the defendant, on the trial. Thai
Dec 1841.] Jamison u Beaubien. 535
embraced in fhe thirteenth assignment -will alone be considered;
as it is clear from the character of the proof excluded, the de-
cision by which such proof was excluded is erroneous. It ap-
pears tliat the evidence offered, was tendered with the expressed
design of impeaching the pre-emption granted, on the ground
of fraud. The testimony offered and rejected, was, that the
pre-emption, under which the lessor of the plaintiff claimed to
have entered and purchased the premises in question, was ob-
tained by the said lessor, by fraud and collusion, between him
and the land officers who allowed such pre-emption. The single
proposition then, arising out of the evidence, offered and
excluded, is, whether the certificate of purchase and sale, by
pre-emption, of a tract of land of the United States, can be
impeached on the ground of fraud, in its obtention, between
the pre-emptor and the officers granting it. Fraud, it is said,
vitiates all acts, as between the parties to it; nor can there be a
doubt, that fraud is cognizable in a court of law, as well as
equity. It is an admitted principle, that a court of law has
concurrent jurisdiction with a court of equity, in cases of fraud:
8 Pet. 244;* 12 Id. 11;' 1 Pet Cond. 539.»
The evidence offered went directiy to the validity of the cer-
tificate of pre-emption purchase. If it had its inception in
fraud, it was certainly competent for the defendant to show the
fact; and if the officers granting it were parties to the fraudu-
lent act, it was no doubt void; and might be impeached in an
inquiry in which the pre-emptor was a party. The exclusion of
the evidence offered, was evidentiy erroneous, and for such
cause the judgment should be reversed, and the cause re-
manded, with instruction to the circuit court to award a venire
facias de novo.
Judgment reversed.
CovcutLBxan JamsDionoN of Coubts or Law and Bquitt nr Cases of
Praui>: See WhUe v. Jones, 2 Am. Dec. 664; Fleming t. Sloeum, 0 Id. 224;
Lambom v. Watwn, 14 Id. 275; Jctckson v. King, 15 Id. 354; Oartand t.
Bhfes, Id. 756; Poore ▼. Price, 27 Id. 582.
Whithsb Evidence of Fraud Admissible to Avoid Patent or other
public grant, in an action at law: See White v. Jonee, 2 Am. Dec. 564, and
note; Smith v. Winton, 3 Id. 755; Dodwn v. Cocke, Id. 757; Alexander ▼.
Oreenup, 4 Id. 541; Joukeon v. Lawton, 6 Id. 311; Jackson v. Hart, 7 Id. 280;
NoTvell V. Camm, 8 Id. 742; Overton ▼. Campbell, 9 Id. 780. See also the
note to Slark ▼. Mather, 12 Id. 565. At law, parol evidence is admissible to
show that the land officers of the state have issued a grant for lands forbid-
den by law to be entered and granted. But where a grant has irregularly
1. €hrtgg t. Bugf, 3. Sw^fgue v. Bwk: 3. Simmt v. Slaeutm, 8 Gnuioli, 300.1
636 State Bank of Illinois v. Aebsien. [Ulinoia,
issued, the party wishing to sToid it most have reooarse to a oourt of equity:
Strother v. CcUhey, 3 Id. 683. As to the oonclnsiyeness generaUy of acts ol
the land offioers of the govemmei^t, see the note to Boainer ▼. VaUren, 20
Id. 273. As to pre-emptora' rights in genenl, see Bnmer t. Ma$Uo9e^ poti^
and note.
■
Staxb Bank of Ilunoib v. Aebsten .
[S BOAMKOir, 186.]
OwvxB OF Baitk Notb DnnDSD fob PaBPon of TBAimiaBSioir, whero one
half is lost through the mail, may recorer from the bank on preseotvtkNi
of the other half, for the lost half not being separately negptiaUe, the
bank can never be injured by it.
AsFBAL from Sangamon counly. The opinion states the case.
Je98e B. Thomas^ for the appellants.
c7. Shields and J. G. ConJding, for the appellees.
By Court, Tbeax, J. This was an action of assumpsit, brought
1^ tiie appellees against the appellants. The declaration alleges
that the appellees were the bona fide holders of a bank note made
by the appellants, of the denomination of one hundred dollars
(setting out the date and number, and particularly describing
the note); that the note was divided bj the appellees, into two
parts, for the purpose of being transmitted by mail; that the
agent of the appellees put the right-hand half of the note into
the post-office at Charleston, Illinois, inclosed in a letter di-
rected to the appellees, at Philadelphia; which letter, with the
indosure of the half note, was never received by them, but wiiS
lost; and that the appellees presented the left-hand half to the
appellants, demanding payment of the note, which was refused.
The appellants demurred to the declaration, and the court over-
ruled the demurrer. The appellants abiding by their demurrer,
the court rendered judgment against them for the amount of the
note. An appeal is prosecuted to this court, and the appellants
assign for error, the decision of the court in oyerruling the de-
murrer to the declaration.
The question for determination is, can the holder of a bank
note, who has divided it for the purpose of transmission by mail,
and has lost one half, recover of the maker the amount of the
note, upon presentation of the other half? The rightful owner
of a note or bill negotiable by delivery, can not recover of the
maker or acceptor, upon proof that it has been lost or stolen,
for it may get into the hands of a third person for a good con-
sideration, and without any notice of the loss or larceny, who
Dec. 1841.] State Bank of Illinois v. Aebsten. 537
would be entitled to recover of the maker or acceptor, on the
iground that if one of two innocent persons is to suffer, it should
be the one who has occasioned the loss or injury. But where it is
shown, that the note or bill is destroyed, the owner can recover,
for the maker or acceptor can never be called upon to make pay-
ment to any other person: Chit, on Bills, 279, 294.
Has there been such a destruction of the note in question, as
to authorize a recovery by the appellees ? This point has been
fully, and we think satisfactorily determined, in the case of
Hinsdale v. The Bank of Orange, 6 Wend. 378. In that case,
the plaintiffs, being the holders of bank notes issued by the de-
fendants, cut them into two parts, and put the righlrhand halves
into the post-office, inclosed in a letter to their correspondent,
which letter, with the inclosures, was received by him. The
left-hand halves were afterwards inclosed and directed in the
same manner, but were never received.
The plaintiff presented the half notes received, and payment
being refused, the court gave judgment against the bank for the
amount of the notes, and interest from the demand. The court
there decide, that the severance of the notes amounted to a de-
struction of their negotiability, and the plaintiffs presenting one
set of the half notes, and showing themselves the owners of the
whole notes, at the time they were divided, were entitled to re-
cover, because the negotiability of the notes being at an end,
the finder or holder of the lost halves would have no right to
claim payment of the makers. See also the cases of Potion v.
Bank of Sauih Carolina, 2 Nott & M. 464; Untied Staies Bank v.
^iS, 5 Conn. 106 [13 Am. Dec. 44] ; and Farmer's Bank v. Reynolds,
4 Band. 186, where the same doctrine is held. In this case, the
appellants, by abiding by their demurrer, admit the ownership
of the appellees in the whole note, at the time it was severed,
the presentation of one of the halves and the loss of the other.
A half of a note not being negotiable, the appellants can never
be injured by the production of the lost half. They are effect-
ually protected against the finder or holder of the lost half, be-
cause he will be unable to show himself the owner of the half
already presented. The appellees are, therefore, clearly enti-
tled to judgment.
The judgment of the circuit court is affirmed, with costs.
Judgment affirmed.
B4KK Bill Cut nr Two, Action on, whsbb 0ns Pabt Lost: See Bcmk
^f United States v. 8Ul, 13 Am. Dec. 44, and the note thereto.
588 Hunt u Thompson. [Illiiioia^
Hunt v. Thompson.
[S BCUMMOV, 179.]
VaTBKE IB LlABLB VOR NBOBBaABZEB FuiUnaSED HD MdTOB SoV OOly I^OA
ftn ezpreM promiae or upon proof of circnmstaaoes from whioh a ptoauit
may be implied.
Xnadbqctatb PBOvnxoK BT Fathxe VOR Child's Naansmn ii not suffi-
oient of itself to warrant the implioation of a promiae by the father to.
pay others for ropplying the deficiency, particalarly where the child la
living at home.
Father is not Liable vor Glothino Furmishxd to Sok Abssht vbov
Home ox a Visit, where the ion was provided with mffident i^parcl on
leaving home, bnt has prolonged his visit nntil his dothes have beoome
oottsiderably worn, and some of them oatgrown, there being no evidsnoa
that the prolonged abaenoe was at the other's instance, or that he ez-
preasly anthoriaad the additional clothing to be fnmiahed.
Pabtt Fubhuhiho Kxobssabibb to Soir Voluittabilt Abbeht from his
father's hoase, without the &tfaor'a oonaent, moat look to tha acn, andnoi
to the father, for payment, although he is not aware that the aon si ah-
aent against hia father's will.
Appeal from the Morgan county oiroiiit court. The opinion
states the case.
J. Berdan and M. McConnd^ for the appellant.
W. Brovm, for the appellee.
By Court, Wilson, C. J. This is an action against the father
for clothes furnished his infant son, under the following cir-
cumstances, as appears from the bill of exceptions: In the faU
of 1838, the son, with the approbation of his father, who re-
sided in Kentucky, came to Jacksonville, in this state, upon a
yisit to his friends in that yicinity. He was suitably provided
with apparel for the occasion; but before the next ^ring, to
which time he prolonged his visit, his clothes became consider-
ably worn, and some of them too small, and the plaintiff made
him a suit of clothes, for which this action is brought. It also
appears, that the youth did not live with his friends, but took
boarding at a tavern in Jacksonville, and contracted this and
other debts, which his friends considered extravagant, and of
which they informed his father, who immediately gave notice,
by letters, that he would not pay his son's debts; but it does
not appear that the plaintiff in the court below had notice of
this fact. Heretofore the father had always furnished his son
with clothes suitable to his circumstances, which were easy.
Upon this evidence the case was submitted to the decision of the
court, without the intervention of a jury, and judgment was
Dec. 1841.] Hunt v. Thobipson. 539
given against fhe plaintiff; to reverse which this appeal is pros-
eooted.
That a parent is under an obligation to provide for the main-
tenance of his infant children, is a principle of natural law; and
it is upon this natural obligation alone, that the duty of a parent
to provide his infant children with the necessaries of life rests;
for there is no rule of municipal law enforcing this duly. The
claim of the wife upon the husband, for necessaries suitable to
his rank and fortune, is recognized by the principles of the com-
mon law, and by statute. A like clium, to some extent, may be
enforced in favor of indigent and infirm parents, and other
relatives, against children, etc., in many cases; but, as a gen-
eral rule, the obligation of a parent to provide for his offspring,
is left to the natural and inextinguishable affection which pro-
vidence has implanted in the breast of every parent. This na-
tural obligation, however, is not only a sufficient consideration
for an express promise by a father to pay for necessaries fur-
nished his child, but when taken in connection with various
circumstances, has been held to be sufficient to raise an implied
promise to that effect. But either an express promise, or cir-
cumstances from which a promise by the father can be inferred,
are indispensably necessary to bind the parent for necessaries
furnished his infant child by a third person.
In this case it is not pretended that the defendant gave any
express authority for, or sanction to the contract with the
plaintiff. What, then, are the circumstances from which such
authority can be inferred ? Certainly not from the bare circum-
stance that the son was in want of the clothes, and that they were
suitable to the fortune and condition in life of the father. To
sanction such a doctrine would, in numerous instances, which
can be readily imagined, subject a parent to the payment of the
debts of a prodigal son, contracted without his approbation,
and even against his will. Where the child lives with the
parent, who takes upon himself the office of ministering to his
necessities, even though his provision should be inadequate,
yet he would not be liable to another who might supply the de-
ficiency, because the undertaking of the parent excludes the
idea of authority in another, and the law will not sanction the
interference of a stranger with parental authority or economy.
And if the son is not to be regarded as a member of his father's
family while staying at Jacksonville, then, in order to render the
father liable for clothes furnished him, it should be shown that
his prolonged residence, which rendered the clothes necessary,
was at the instance of the father; for a child, by voluntarily
540 Hunt v. Thompson. pniinoia^
abandoning the home of his father, or remaining abroad against
his consent, forfeits his claim to support, and those who credit
him, even for necessaries, must look to him for payment; and it
is no excnse that such persons were not aware that the child
was acting contraiy to the will of the father; for it is the dutj
of those who give credit to an infant to know his precise sitoa-
tion, at their peril. .If it had been proved that it was by the com-
mand of the defendant that this son remained abroad until addi-
tional clothes became necessary, and he neglected to provide
them; an authorily in one who should supply his omission of
duty, might well be presumed, as the necessity was occasioned
by his own act. But no such exercise of authority on the part
of the father is shown; nor is it reasonable to presume that be-
cause he allowed a son between fifteen and eighteen years of
age to visit his friends, that he gave him authority to take board-
ing at a tavern for five or six months, and until he should out-
grow his clothes, or wear them out, and then purchase others
at will. The fact that the defendant had previously provided
his son with sufficient apparel, and that he was not informed of
any deficiency at the time referred to, not only exonerates him
from the imputation of a dereliction of duty, but affords a
strong presumption that it was not with his approbation that
his son remained abroad luitil he became destitute of clothes.
Another circumstance against the imputation of authority to
furnish the son with clothes on the credit of his father, is, that
so soon as he was informed of the conduct of his son by his
friends, who considered it extravagant and improper, he noti-
fied them that he would not be answerable for his debts.
It is the acts of the parent, and not those of the infant, that
are to be looked to as affording a presumption of authority that
will render him liable; and the acts of the defendant, not hav-
ing been such as to justify an inference of authority from him
to the plaintiff to supply the goods sued for, he can not be
made answerable for the price of them. The judgment below
is therefore affirmed.
Judgment affirmed.
Fathxr's Liabilitt fob NxossaARixs Furnished to Mnroa Child: See
Stanton ▼. TFifeon, 3 Am. Deo. 265; Van VaUanburgh v. Watwn, 7 Id. 395;
Angtl T. MeLeOan, 8 Id. 118; Owen ▼. WMte, 30 Id. 572. See also Myen ▼.
Myera, 16 Id. 648, and note. The doctrine above laid down, that a father U
not liable for necessaries furnished to his minor child, without an express
promise to pay therefor, or proof of circumstanoes from which a promise ma^
be implied, is approved in OoU8 v. Clark, 78 III 230; MeMUlen v. Lce^ Id.
445; Murj)hy v. OUenhnmer, 84 Id. 40; Johnson v. SmcUhooodt 88 Id. 75;
SchuneUe ▼. Bterman, 89 Id. 456.
Dec 1841.] Elkin v. People. 541
EiiEiN V. People.
[S BOAMKOV, 907.]
Ounom RKmynro and Lbvtinq Exzcution must Pxbteot it, by the role
of the oommon law, by performing every act reqaired to be done under
or by virtae of the writ.
Ofvigbb Sxllhtg Land on Execution mat Rioeitb Bedkmption Monxt,
even after the expiration of hie term of office.
SuBBTizs OF Shxritf Rioxivino REDEMPTION MoNET after his term hat
expired, upon land preyicnaly sold by him, are liable therefor.
Afpbal from Sangamon county circuit court, in an action
against the defendants as sureties on a sheriff's bond, in which
judgment was recovered by the plaintiff. The opinion states the
point to be determined.
8. Strong and A. Linoolny for the apx>ellants.
8. T, Logan, for the appellees.
By Court, Wilson, 0. J. The only question for adjudication
presented by the record in this case is, as to the liability of the
sureties of a sheriff where he has received money after he has
gone out of ofSce, for the redemption of land sold under execu-
tion while in ofSce. The sureties being bound for the faithful
discharge of all the ofScial acts and duties of the sheriff, their
liabilily necessarily depends upon the question, whether the re-
ceipt of the money by the sheriff, after the expiration of the
period for which he was appointed, was an ofScial act, enjoined
or permitted by the law. The rule of the common law is, that
the ofScer, who has received and levied an execution, must per-
fect it, by doing every act required to be done under or by virtue
of the execution. The whole proceeding is regarded as-an entire
thing. And although lands are not liable to be taken and sold
under an execution, at common law, yet where by statute they
are subjected to be thus taken and sold, the ofScer in whose
hands the process may be, will be bound to conform to the rules
governing the proceedings under an execution levied upon chat-
tels, unless a different proceeding is prescribed; and where a
different mode of proceeding is prescribed, that necessarily be-
comes his rule of action, and must be complied with.
The statute of this state has subjected lands to be sold under
execution; but it allows the defendant the right to redeem the
same within the time, and according to the rules prescribed.
Under this statute, all the proceedings of the sheriff, in this
case, have taken place; and its provisions are decisive of the
legality of his acts. Qenerally, the return of the process ex«
542 Elein v. People. [niinoia^
ecuted termiiiates fhe duiy and power of fhe officer, because it
is the last act to be done; but the statute haying allowed the
defendant, whose lands have been sold under execution, the
privilege of redeeming the same, by the payment of the pur-
chase money, etc., either to the purchaser or the sheriff, extends
his duty beyond the return of the process, and makes the receipt
of the redemption money a component part of what the law re-
gards as an entire thing. The rule which permits the sheriff,
after the expiration of his office, to finish all business previously
commenced, would seem to embrace the receipt of the money by
the sheriff in this case; but if there is any doubt as to the cor-
rectness of this view of the subject, that doubt, I conceive, must
be removed by the eleventh section of the *' Act concerning
judgments and executions:" B. L. 374; Gktle's Stat. 892; which
provides that any defendant whose lands may be sold by virtue
of any execution, may redeem the same within twelve months,
by paying to the purchaser thereof, his executors, administrators,
or assigns, or to the sheriff, or other officer who sold the same,
for the benefit of such purchaser, the sum of money which may
have been paid on the purchase thereof, etc. This provision is
a confirmation and application of the rule adverted to, to a case
like the present. There is no exception or restriction of pay-
ment, by the former owner of the land, to the officer in office;
but he is authorized to pay the redemption money to the officer
who sold the land, whether in or out of office, at the time the
payment may be made. Upon the same principle that an offi-
cer shall complete whatever business he may have begun, the
fifteenth section of the same act requires the sheriff who has
gone out of office, to execute a deed for lands which he may
have previously sold.
It is contended, that between the sheriff and the party whose
lands were sold, the business was consummated by the return
of the execution; that the language of the law is merely per-
missive to the j>arty to pay the money to the sheriff, and not
obligatoiy upon him to receive it. This opinion can not be cor-
rect; the right of the -partj to pay the redemption money to the
purchaser of the land, is given in the same language that the
right to pay it to the sheriff is. If neither of them, therefore,
is bound to receive the money, the consequence would be, that
the right of a party to redeem his lands sold under execution,
which is clearly and explicitly given by the legislature, might
be defeated, by the perverseness of the officer, and the cupidity
of the purchaser. The right to pay the money, either to the
Dec 1841.] Lane u Dobman. 543
officer or purohaser, imposes upon either one, to whom it may
be tendered, the obligation to receive it, otherwise this import-
ant provision of the statute would be utterly idle and nugatory.
The demurrer of the plaintiff to the plea of the defendant,
alleging the receipt of the money by the sheriff, after a subse-
quent appointment to the office of sheriff, to the term for which
they had executed his official bond, was properly sustained.
The judgment is therefore affirmed.
Judgment affirmed.
SmauFT Who hab Bigux Bzboutiov must Gompubtb it, though his
tann of office expires in the mean time: B<mdwrwid ▼. B^crdy 35 Am. Deo.
38; BMMQfM ▼. i>imoaA, 8 Gibn. 470, citing the prindpsl csss. As to the
right of the oatgoing sheriff, or his depaty, to sell property preyioosly levied
on, see Pwri ▼. DwooJX^ 0 Am. Deo. 490, and LoJUmd ▼. Euringt 15 Id. 41.
As to the anthority of such outgoing sheriff, or his deputy, to execute the
deed where land has heen sold on exeoation before the term of offioe expired,
see AUm v. Trimble, 7 Id. 726; Lemon t. Craddoek, 12 Id. 801; TnUU ▼.
Jadseoth 21 Id. 800. See, also, the note to Tuieif t. SmitK, pott, for an ex-
tended discussion of the power and duty of sheri£h after the expiration of
their official terms. Bedemption money may be paid either to the sheriff in
offioe or to his predecessor, who sold Uie luid: Eoberiefm ▼. Dennie, 20 IlL
315, citing IXkin ▼. People. The case is cited also in LUOer t. People, 48 Id.
191, to the point that the policy of the law favors redemptioos, and looks to
4he substance xatfaer than the form.
Lane v. Dobman.
(8 SCAlOCOV, 988.]
Nbw BnDBrcB oan not bx Rsckxvxd in AprKSAjLtm Oousr, it sHsma, eiwem
by the consent of the parties.
tekTUTB SHOULD BX Manirstlt UNOONsnTUTioxAL to wammt the court la
dedaring it void.
LWIBLATUBB CAN VOT BxXBdSB JUDIOIAL POWXBS.
SraciAL Act Pbovidino for Salx of Dboxdknt's Land, without notice to
the heirs, and for the application of the proceeds to the claims of the ad*
ministrator and another person against the estate, for moneys advanced
and liabilities incurred by them on its account, and requiring the adminis-
trator to make deeds to the purchasers of the land, and to give bond to
the heirs for the application of the proceeds as provided by the act, is
unconstitutional, because it is an exercise of judicial power, and also be-
cause the heirs are thereby disseised of their freehold, not by the judg-
ment of their peers, nor by the law of the land.
Appeal from the Gallatin county circuit court, in an action of
•ejectment, to recover certain lands. The plaintiffs claimed title
as the heirs of Christopher Robinson, deceased. The defend*
ants claimed as purchasers under the act mentioned in the opin*
544 Lane v. Dobman. [niinois,.
ion, and offered fhe act in eTidence, but it waB rejected, and the
plaintifffl had verdict and judgment, whereupon the defendants-
appealed.
John A. McClemand and Jesse B. Thomas, for the appellants.
WiUiam J, OatetDOod, for the appellees.
By Court, Smith, J. This cause comes up by appeal from
the circuit court of Gkdlatin counly. The appellants seek to
reyerse the judgment of the circuit court rendered against them,
on the trial of the cause below. The main question, it beings
an action of ejectment, in the circuit court, was the vaUdiiy of a
sale of the lands in controTcrsj, under an act of the general as-
sembly of this state, entitled, ''An act authorizing the sale of
lands belonging to the estate of Christopher Robinson, de-
ceased," approved January 5, 1827. By the bill of exceptiona
taken in the cause, it appears that the circuit court decided this
act to be unconstitutional and void; and on the trial rejected
the evidence of the sale of the lands, and all proceedings had
under it. The legislative power exercised on this occasion, and
the competency of that department to pass the act, is the point
to be resolved.
The first section of the act declares, that John Lane is author-
ized to sell so much of the lands, late the property of Christopher
Bobinson, deceased, as will be sufficient to raise the sum of one
thousand and eight dollars and eighty-seven cents, together with
the incidental costs of sale, and interest on the aforesaid sum.
The second section provides, that such sale shall be at public
vendue, by the said John Lane; that he shall give twenty days' no-
tice of the time and place of selling the same, by posting notices
thereof in three of the most public places in the county of GhJlatin^
describing particularly the lands to be sold, which may be sold on
a credit of four months, with approved security. It further pro-
vides, that the proceeds of such lands shall be applied to the ex-
tinguishment of the claims against the said Bobinson's estate, in
favor of the said John Lane and one John Brown, for moneys by
them advanced, and liabilities by them incurred, on account of
said estate, and that Lane shall make and execute deeds for the
same. The third section provides, that the said Lane shall give
bond to the heirs of Bobinson, in double the sum specified in
the first section of the act, with securily, to be approved by
the judge of probate of Qallatin county, conditioned for the
faithful application of the proceeds of such sale, according to
the terms of the act, before he shall make sale thereof. These
Dec 1841.] Lanb v. Dobman. 545
«re all the provisionB of the act. Certified papers, not in the
caee, showing a settlement of the accounts of the administratorB
of Bobinsony have been presented to this court, with an assent
of the parties, that such papers should be taken into con-
sideration with the record. We feel clear, that the court has
no authorily whatever to consider those papers, in an examina-
tion of the case; because, in an appellate court, no new evidence
can be taken or received without violating the best established
rules of evidence. If, however, these papers were considered, it
is not perceived that the facts therein contained would vary the
result.
The determining of a question, involving the inquiry whether an
exercise of power by the legislative department of the state, is
constitutional, is readily conceded to be not only a matter of
delicacy, but of grave import, and demands the most deliberate
and mature consideration. It should not, moreover, be decided
but in cases of clear necessiiy, and where the character of the
act done is in plain and obvious conflict with the constitution.
It has been aptiy said to be an inquiry, ** whether the will of the
representatives, as expressed in the law, is or is not in conflict
with the will of the people, as expressed in the constitution." If
the case presented can, upon its merits, be determined without
such inquiry, it is the part of wisdom to decline it. So, on the
other hand, although it is the highest and most solemn function
which the judicial power can be called on to exercise, it should
be met with firmness, when, in the course of judicial examina-
tion, a decision becomes material to the rights of either of the
parties in the controversy. Whenever it is clear that the legis-
lature has transcended its authoiily, and that a legislative act is
in confiict with the constitution, it is imperatively required of
the court to maintain the paramount authority of that instru-
ment, which it is solemnly pledged to support, and to declare
the act inoperative and void.
With the view, then, of ascertaining whether this confiict ex-
ists in the case tmder consideration, we proceed with the exam-
ination. The better to solve the inquiry, we shall compare the
provisions of the law, with such portions of the constitution
as are supposed to have been violated by its enactment. The
first and second sections of the law autiiorize and require so
much of the real estate of Bobinson, the intestate, of which he
died seised, as shall be sufficient to pay the sum of one thousand
and eight dollars and eighly-seven cents, and the costs of sale,
to be absolutely sold at public sale, and the titte conveyed, in
Am. Dao. Vol.. XXXVI— 85
646 Lane v. Dobman. [Illinois,
Tirtae of such sale, to the purchaser; the proceeds of the sale to
be appropriated to the use of Lane and Brown, for moneys ad-
vanced, and liabilities incurred, on account of Robinson's estate,
and the payment of the costs of sale. From the provisions of
these sections, it will be perceived that the lands of the ances-
tor of the heirs have been not only appropriated to the paymert
of the alleged debts of the ancestor, and the costs of the pro-
ceedings, by a summary proceeding, without the consent of, and
without notice to, the heirs, but they have been absolutely and
directly appropriated to the use of two of the creditors of the
estate, to the exclusion of all other creditors, if such there
be, and on transactions admitted to have transpired after the
death of the intestate. By this proceeding, it would seem that
the legislature has determined, first, that the sum stated was due
to the persons named in the act, from Bobinson's estate; secondly,
that it was due for moneys advanced, and liabilities incurred, on
account of such estate, after the intestate's death. To have as-
certained these &cts, they must be presumed to have necessarily
investigated the justice and legality of these several claims, and
determined from evidence, or otherwise arbitrarily determined,
that the moneys were due, and that the liabilities actually
existed, as stated. They have, also, appropriated a part of the
proceeds of the lands for a mere liability incurred, and not for
an actual advance or payment of money; thus appropriating the
lands to persons who had acquired no legal right to demand a
remuneration for liabilities merely incurred, but not yet dis-
charged, paid, or satisfied.
By the first section of the first article of the state oonstitu-
tion, the powers of the government of the state are divided
into three distinct departments, and each of these confided to a
separate body of magistracy, viz. : those which are legislative to
one; those which are executive to another; and those which are
judiciaiy to another. By the second section of the same article,
no person, or collection of persons, being one of those depart-
ments, shall exercise any power properly belonging to either of
the others, except as is therein expressly directed or permitted.
The exercise of judicial powers by the general assembly is not
one of the exceptions; nor is it one of the permissions contained
or referred to in the proviso to this second section; conse-
quently the exercise of such powers by it is positively forbid-
den, and expressly inhibited, and it has been delegated solely
to the judicial department. The inquiry thetn .becomes im-
portant, has the legislature, by the passage of this law, violated
Dec. 1841.] Lank v. Dobman. 547
provision of the constitation ? It will be seen, from the
synopsis of the act made, that evidence must be presumed to
have been leceiyed, and facts ascertained by the legislature, be-
fore its decision, or it has, without such evidence, arbitrarily as-
sumed the facts to exist; and on such ascertainment, or assump-
tion, a decision is made in the nature of a decree. For the
act directs the sale of the lands, and orders the appropriation
of its proceeds to the persons on whose application, and for
whose benefit, the act was adopted, and adjudges the costs to be
paid out of the estate. If this is not the exercise of a power of
inquiry into, and a determination of facts, between debtor and
creditor, and that, too, ex parte and summary in its character,
we are at a loss to understand the meaning of terms; nay, that
it is adjudging and directing the application of one person's
property to another, on a claim of indebtedness, without notice
to, or hearing of, the parties, whose estate is diverted by the
act.
That the exercise of such powers is, in its nature, clearly ju-
dicial, we think too apparent to need a^;ument to illustrate its
truth. It is so self-evident, from the facts disclosed, that it
proves itself. And it is not less certain, that the exercise there-
of is in direct conflict with the articles of the constitution cited.
The injustice, too, of the exclusiveness of the law, is manifest.
Why should the two persons named in the act be preferred to all
the other creditors of the intestate? If the act was sought to
have been adopted, on the general principle of applying the real
estate of the intestate to the payment of all his just debts, it
should have been so framed, and not have been made exclusive
in its character and objects. The necessity for such an act,
however, could not have existed, because, under the general
laws of the state, where the personal estate of an intestate is in-
sufficient for the payment of debts, the circuit courts of the
state are vested with power, on proper application by the exec-
utor, or administrator, to direct its sale and so apply its pro-
ceeds. If, however, the real object of the act was to reimburse
^as was urged on the argument, but which does not appear in
the case), the administrators, for moneys advanced by them in
the course of administration, and to protect them for liabilities
they had voluntarily incurred in the course of that administra-
tion, the grounds are, in our jiidgment, still more objectionable.
The laws of the state are sufficiently ample to afford all just re-
lief, in such a case. By a regular course of legal investigation,
in its tribunals, where the matters could be deliberately eiam*
548 Lake v. Dobmak. [Illiiioi^
inedy and all parties interested heard, it is certain, that in a
proper case, and on sufficient proofs, the respectiye rights of tho
parties would be fairly ascertained and determined. On such
an application, it is however true. Chat the liabilities incurred
would not have been recognized as subsisting debts, or daimsi
against the estate, until discharged or liquidated; and if so, the
injustice of subjecting the lands to sale for such causes, is, wv^
think, rendered the more apparent.
Another clause of the constitution is, also, we think infringed.
By the eighth section of the eighth article, it is declared that no
freeman shall be disseised of his freehold, but by the judgment
of his peers, or the law of the land. If it be admitted, that un-
der the conyentional rules of goYemment, flowing from the
constitution, as adopted by common consent, it is competent
for the legislature to subject the real estate of the ancestors of
heizB, for the payment of the debts of the ancestors, to sale by »
general law; and if it be further conceded, that it may rightfnllj
direct, by a special act, in any case, such sale for the purpose of
applying the proceeds to the payment of all the claims subsist-
ing against the ancestor, under the supervision of the court of
probate of the county where such lands may be, or other appro-
priate tribunal, still the act in question is not one of that char-
acter. It is obnoxious to the objection stated. The legislature^
in the exercise of the power ass^ted, not only assumes the func*
tions of another department of the government, but, it seems,
disseises the freehold of the heirs of the ancestor, without a
hearing, upon an ex parte application, and ex parte evidence. It
will not, we suppose, be seriously contended that such an act,
thus passed, under such a state of facts, is the lex terrw meant^
or the judgment of one's peers intended by the constitution.
Besides, the act is for the special benefit of two creditors, and
none other. It is, therefore, not only indefensible upon the
general principle of applying the real estate to the payment of
all the debts of the ancestor, but is highly unjust by the prefer
ence thus given over other creditors, to their prejudice.
We have been referred to decisions in two cases in Kentucky,
relative to sales made by virtue of special acts of the legislature
of that state, of real estate, for the payment of the debts of the
ancestor. Those cases have been examined attentively. We,
however, discover nothing in them but doubtful affirmances of
acts, where the sales were for the benefit of. all the creditors,
and the conveyance of land agzeeaUy to previous oontnMsts of
the intestate. In the case of ^t&6y v. C^tteNXKf sJdm'rs, 4 T.B.
Dec. 1841.] Lane u Dorbcan. 549
Mon. 94 [16 Am. Deo. 143], Chief Justice Bibb, in deliyering
the opinion of the court, remarks: " The exercise of such a
power has been, at least in one instance, resisted by the ezec-
ntiye department, but has not been hitherto a subject of minute
inyestigation in the judicial department. Indeed, these acts are
so Tarious in their natures, and different in their circumstances,
and objects, that no one general constitutional provision could,
perhaps, embrace the whole, and many must rest on their par-
ticular drcimistances, and be opposed by different constitutional
provisions. In the legislatiye department, they have not been
adopted without opposition arising from constitutional objec-
tions, and it is perhaps a matter of regret, that so many lutve
passed that body. One great objection seems to be, that the
power of infants over their real estate is denied to them by the
general laws of the land, and while their own volition is thus
restrained, and their hands tied, these special laws dispose of
their real estate, without their concurrence, without permitting
them to be consulted; and whether the legislature can dispose
of their real estate, or take it from them, by laws which operate
like the revocation of a grant, consistently with every constitu-
tional provision, is a question of much importance; but the par-
ticular circumstances of each case, and the object of the legis-
lature in malring each act, ought to be considered in deciding
on each of these acts. We are aware that one objection, which
presents a question of acknowledged difficulty, presents itself
against legislative transfers of estates, without the consent of
the owner, and that is, is such a proceeding within the scope
of legislative authorify, or is it a power properly belonging to
other departments of the government, or to individuals them-
selves, and not granted by our compacts to either department?
This we leave, also, till a proper case occurs for its discussion, as
we have seen that the power of subjecting estates to debts, is
within the compact, and conceded to legislative authorify."
In the case of Shehun'a Heirs v. Barretts Seirs,^ the legisla-
ture of Kentucky, in 1796, passed an act, with a preamble, ap-
pointing commissioners over the estate of Joseph Bamett, for
the benefit of his creditors. The preamble recited that Bamett
had died intestate, leaving but little personal estate, and con-
siderable lands; that he had sold, and not conveyed, many of
these lands, and that others would be lost, for wont of attention;
and as nobody would administer on his estate, his creditors were
soffering. The act then vested the estate in certain oommis*
■ ^^— ^^' ^^™^^
1. AMUM'ff Airt ▼. BanuttB Bdn, 0 Hon. 603.
550 Lane v. Dobman. [IIIinoia»
doners, who were directed to conyey in fulfillment of his oon-
tracts for lands; to sell his personal estate and pay his debts;
and if that proved insufficient, to sell and convey so much of his
lands as might be necessary for that purpose, on a credit; and
to apply the proceeds in discharge of his debts. They were also
authorized to sue for debts due the estate, and made subject to
suits by creditors. They were in fact created by a special act,
administrators, with the vestiture of the real estate of the intestate,
and power over it to sell and convey. The court decided, in
this case, upon the authority of the case of Siibby v. GhUwood'e
Administratara, that it had been held that where real estate
ought, by the general laws of the land, to be sold for the pay-
ment of debts, the legislature might subject it, by a special law,
for that purpose, when the rights of the parties concerned were
held inviolate. It however said: ** We are still disposed to con-
fine this decision exclusively to one class of cases, viz., to the
subjecting lands to debts by special act, which were before sub-
ject to the same debts by the general laws of the land, without
materially affecting the rights of the parties; and we would not
be understood as giving our sanction to other appropriations of
the real estate of minors, for other purposes. It will be time
enough to decide upon other cases, when they occur."
These cases are clearly distinguishable from the case at bar.
The acts were for the benefit of all the creditors of the estates,
without distinction, and in one case, in addition, for the pur-
pose of pexfecting titles contracted to be made by the intestate.
The claims of the creditors of the intestate were to be established
by judicial or other satisfactory l^gal proceedings, and, in truth,
in the last case dted, the commissioners were nothing more than
special administrators. The legislative department, in passing
these acts, investigated nothing, nor did an act which could be
deemed a judicial inquiry. It neither examined proof, nor de-
termined the nature and extent of claims; it merely authorized
the application of the real estate to the payment of debts gen-
erally, discriminating in favor of no one creditor, and giving no
one a preference over another. Not so in the case before ub;
the amount is investigated and ascertained; and the sale is
directed for the benefit of two persons exclusively. The pro*
ceeds are to be applied to the payment of such claims and none
other, for liabilities said to be incurred, but not liquidated or
satisfied; and tiiose too created after the death of the intestate.
We can not hesitate in declaring our conviction that the act is
in direct conflict with the provisions of the constitution cited,
Dec. 1841.] Bbxtneb u Manlovb. 551
and it is consequently inopezatiye and void; and no estate,
therefore, passed by the sale and conyeyance of the lands made
under it. The judgment is affirmed, with costs.
Judgment affirmed.
Appkixatb Goubt is Ck>NnNXD to Prootb npoa which the decree im-
peached for error wm foimded: OiUi$ v. Martin^ 25 Am. I>eo. 729.
Leoibultusb can not etojiOTiTUTiowALLY ExEROisB JUDICIAL PowxB: See
MernU v. Sherbunu^ 8 Am. Dec. 52; Dupy v. Iftdbioire, 6 Id. 7^29, and note;
Hc3» r..ffender9on, 25 Id. 677; Officer v. Toung, 26 Id. 268; Jonea v. Perry,
SO Id. 430, and note referring to other cases in this series on the same subject;
OammomoeaUh ▼. Faarmenf ete. Bofnk^ 82 Id. 290. The doctrine of Lwm t.
Dcrmany on this point, is referred to with approTal in Mason v. WaJU^ 4 Scam.
134; Edwards v. Pope^ 3 Id. 471.
Spsoial Aor Authobiziho Sale or DBaxniNT's Pbopebtt to pay hia
debts is oonstitational: Kibby v. OhUwood, 16 Am. Dea 143» and note; ooii-
Ira, Jones v. Perry, 30 Id. 430. A special act authorizing a sale of the prop-
erty of minors, to provide funds for their education and maintenance, is
constitutional! Ooehran ▼. Van Swriay^ 82 Id. 570. On the point that a spe-
cial act authorising a sale of a decedent's estate to pay debts, without pro-
viding any method of judidal ascertainment of the debts due, the principal
esse is followed in Davenport ▼. Totrng, 16 HL 551; Rosier v. Fagan^ 46 Id,
404; Dubois t. McLean^ 4 McLean, 488. In Boner v, Fagan, the court say:
"We can perceive no diffisrence, in principle, between this case and that of
Lame t. JDomMm, 8 Scam. 238. With that decision the profession has been
oniversally satisfied, and this court has pronounced no judgment upon ques"
tions of constitutional law resting upon a sounder basis." That a sale under
a void authority is void, is a general proposition to which the case is dted in
Domum v. Lane^ 1 Gilm. 150, which was a subsequent decision in the samis
Statutb MUST Clbablt Tbansobnb ths GONSTITirnONAL LmiTB of leg-
islAtive authority before it will be declared void: Bourland v. HUdretht 26
CaL 228; PreUyman ▼. Supervisors qf Tatewen, 19 BL 411; Chicago etc R. R,
Co.T. SmUh, 62 Id. 271; TwUcheU v. BlodgeU, 15 Mich. 151, all citing the prin-
cipal case. To the same effect, see CfUy qfLouisMe v. HyaU^ post, and oases
died in the note thereto.
Bbuneb V. Manloyil
[8 SOAXMOir, 839.]
PkBSOir HATnro Aoquirxd Inchoate Bight of Pbb-bmftion to a tract of
land under the act of May 29, 1830, by settlement and cultivation, may,
upon making proof and paying the purchase money within one year,
compel a conveyance by a purchaser therof by virtue of a Vincennes oer-
tificate, under the act of May 11, 1820, who entered and purchased the
land after such inchoate right accrued, but before the pre-emption price
was paid, and may enjoin such purchaser from recovering the land.
OraN AKB NoTOBious PoflSBSsioN or Sbttlxb ok Pubuo Land, under the
act of May 29, 1830, is notice to all the world of his equitable right of
pre-emption.
652 Bb JKEB t;. ManijOYX. [Dlinoiak
£bbob to Sohiijler oonnty eizcmt court The opimon Mkm
tliecase.
M. MbOonnd, for tlie plaintifBi in enor.
W. A. Mmfhall^ tat the def endftnts is enor.
By Oourty Bbxisb, J. The decision of the case of iMoct t.
Steely 8 Scam. 97, pronounced at this tenuy renders a partioolar
examination of the Tarions enors assigned and points made hj
the plaintifffl here nnneoessazy. No matiftrial difference is per-
ceiyed between the two cases, and most of the Tiews presented
in the opinion deliYered in that case, will apply to this. It is
sufficient to observe briefly, that the plaintiffs in error, on the
third day of August, 1830, entered and purchased the land in
controversy, at the land office at Springfield, by virtue of a Yin-
oennes certificate, granted under the act of May 11, 1820, and
obtained the usual certificates thereof. On the same day, the
defendants in error made proof to the satisbction of the same
land officers, of their right of pre-emption to the land, as re-
quired by the act of May 29, 1830, and tendered the money
therefor, which was refused, and the case referred to the general
land office for decision. The commissioner directed the land
officers to receive the money of the defendants in error, and re-
fund that which the plaintiffs in error had paid; and on the
twenty-ninth day of January, 1831, their money was received,
and a certificate granted them. They also ezhiUt the certificate
of the register of the same land office, of the entry and purchase
by them, of the land under this pre-emption act.
The plaintiffs in error having the oldest certificate, brought
their action of ejectment in the Schuyler circuit court, against
the defendants, who were in possession of the land, and had
been in possession, cultivating the same, continuously, since
1825, and recovered a verdict and judgment, and threatened to
turn them out of possession. To prevent this, the defendants
filed their bill in chancery, setting forth these facts, charging a
knowledge of all of them upon Teel, one of the plaintiffJB in
error, and alleging a combination between him and the others,
Bruner and McConnel, to defraud them, and pray for an injunc-
tion to restrain farther proceedings in the ejectment cause, and
that the defendants, the plaintiffs in error here, may be decreed
to convey all their titie and interest to the land to them, and fox
general relief. Teel answered, denying the fraud and combina*
tion, and demurred, vnth the other defendants, to the bill, which
Dec. 1841.] Bbuneb v. Manlovs. 553
•demoner mm OTerroedy and a decree rendered for the oomplain-
jmtB, that thqr be quieted in their possession, as against the de-
fendants; that the defendants' title be set aside, and for nothing
'esteemed, as to the complainants, and that McOonnel be ruled
io conTej, by qnitdlaim deed, to the complainants, all the right,
iitle, and claim he may ha^e to the land, growing out of the
pmrohase by Broner, and which Broner had conyeyed to him, in
trust, as alleged in the bill, for the joint nse of himself, Ted,
4ind McOonnel.
The assignment of errorequestionsthepropriety of this decree,
the plaintifffl insisting that the possession of the Yincennes cer-
tificate, being issned in 1820, under the act of elerenth of May,
of that year, ga^e them a prior equity, to which they had a right
to attach the l^gal estate, by purchase from the United States;
that having done so, before the defendants paid for the land,
their right must OTerride the defendants. This is the substance
of their argument, and to test its soundness, reference must be
had to the provisions of the act of May 11, 1820. That act is
entitled "An act for the relief of certain settlers in the state of
Illinois, who reside within the Yincennes land district:" 1 U. S.
L. 829. The second section of this act, which alone bears on
this case, provides, in substance, that every person who would
have been entitled to the right of pre-emption, in the Yincennes
district, according to the provisions of an act of congress, passed
on the fifth day of Febroaiy, 1813, entitled, ''An act giving the
right of pre-emption in the purchase of lands, to certain settlers
in the Illinois tenitory;" if that act had been construed so as to
embrace them, and who did not, by reason of the construction
placed upon it, become the purchaser of any tract of land to
which such right of pre-emption would have attached, shall be
allowed until the first day of September next, to prove to the
satisfaction of the register and receiver at Yincennes, that they
would have been so entitled; and it is made the duty of the
register, when such satisfaction is made, to grant a certificate to
every such person, or their legal representatives, stating in it,
that such person would have been entitled to such right of pre-
emption, and that he did not become the purchaser of the land,
either at public or private sale; and every such person, or his
legal representative, upon producing such certificate to the
register of any land office in Ihe state of Illinois, shall be allowed
to enter one quarter section of land each, at the minimum price,
of any land which may be surveyed previous to the first day of
654 Bbuneb v. Manloye. pOliBois^
September, whether the land shall haTe been offored at pfoUie
sale or not.
It will be peroeiyed that this act grants no right to any partic-
ular quarter section of land, bat merely the privilege of paying
in the certificate in lieu of money, for saoh quarter section aa
might be selected. If the land in controversy had been selected
before the passage of the act of the twenty-ninth of May, 1830,
there is no doubt it could have been paid for in this certificate;
the fact being admitted that it was surveyed previous to the first-
day of September, 1820. But it was not; it was not selected
for purchase, until after the passage of that act, when the de-
fendants in error had obtained by settlement and cultivation,
an inchoate right to it, and which they had one year thereafter
to perfect, by making the required proof, and paying the pric»
demanded. If, as we have already decided, the payment of
money for a tract of land claimed under this law, by a pre-
emption, by another person, gave to such person no right over
the pre-emption, payment in a certificate could confer none.
The defendants' claim by possession and occupancy was open
and notorious, and notice to all the world of their equitable title
to all the benefits designed to be conferred by the provisions of
the pre-emption law, and until the expiration of the time limited
by it, they had an unquestionable right to avail themselves of
those benefits, and no third person could interfere to defeat them.
The defendants did avail themselves of these benefits, in the
required time, and thus perfected their right against all others.
The demurrer admits all these facts as charged by the defend-
ants in error, in their bill of complaint, and we have no doubt ii
was properly overruled. The form of the decree differs some-
what from ihe special prayer in the bill, but is not repugnant to,
or inconsistent with the prayer for general relief. The decree
is tiieref ore affirmed with costs
Decree affirmed.
Pbs-kmftob's Biohtb, Natusb akd Gxtbnt or: Sea ffem^ v. YTelcib, 2^
Am. Dec. 490, and the note thereto diacnasing thie mibjeot. See elao Bird r,
Ward^ 13 Id. 506, ftnd note, as to the power of a oonrt of eqntty to decree one
who has by fraud entered land to which another has a valid pre-emption right,
a trustee for the latter. As to avoiding a certificate of pre-emption frandn-
lently obtained in a court of law, see Jamison v. BeaMenf amie, 534. The prin-
cipal case is dted in Lester v. WhUe*s Heirs, 44 IlL 466, to the point that tfa»
preemption law grants an estate upon condition which becomes absolute upon
performance; and in BriU v. Stiies, 35 Id. 308, to the poiot that a junior pat-
ent or certificate prevails over an elder one where the former is based on a
prior right. The case is also referred to and distinguished in HuUon v. Fris*
I>ec 1841.] Bbuker v. Manlove. 555
6te, 37 Cal. 498, m not confliotixig with the doctrine there held, th«t a pre-
emptioner before payment has no mich title aa. will prevent the goremment
from withdrawing the land from pre-emption. It ia diatingiiiahed alao in
Chna^ V. MeOanee^ 14 OL 345; and ia cited in Jtobbku v. Bumty 54 Id. 51, aa
to the oonelnrivepeea of the dedabna of the land cffioers of the govenmiant
as to the righta of a pre-emptioner.
PdflsnnoN 18 NonoB of Tetls: See JokntUm v. Cfkm^p 28 Am. Dec 40»
and the note thereto^ ooUecting the preriona caaes in thtmarfai on that pointy
Hmrd^ ▼• Bmnmen^ 82 Id. 167» and note.
CASES
IN THE
SUPREME COURT OF JUDICATURE
or
INDIANA.
Seymoub V. Watbon.
[5 BhAOKWOaD, 666.]
Fwanm Brnvr on Qovzrnmbnt Land by Mibtakb by an adjoining pio-
prietor beoomes part of the freehold, and passes to a sabseqnent pnrohiaur
of tho land, and it is trespass for the party erecting it to remove it.
Tbb8pa88 quare clauswm /regit. The opinion statee the case.
A. 8. White and B, A. Lockwood^ for the phiiniiff.
J, PettUf for the defendant.
Dewst, J. Trespass quare claiLSum /regU. Plea, not gnilly.
Verdict and judgment below for the plaintiff. It appeared
in cTidence, that the plaintiff and defendant were the pro-
prietors of adjoining fields; that the defendant purchased his
land of the United States, and before his lines had been ran,
and while the plaintiff's land was Taoant, inclosed his field with
a rail fence made with his own rails, and that in doing so he
placed a part of the fence on the land of the United States,
which the plaintiff afterwards purchased; and that the defend-
ant moved the fence from the land of the plaintiff to his own
land. This is the trespass complained of. The court instructed
the jury that, under ibe circumstances above stated, the rails
removed by the defendant were the property of the plaintiff, al-
though the former had placed the fence on the land of the
latter by mistake. Whether this instruction be ooxxeot or not,
is the only question presented by the record.
We thhik the law was correctly given to the jury. It is a
general prinoipley that all pennanent buildings follow the tenure
May, 1841.] Findlet v. State. 667
of tlie 0Q& on which thej are erected. The fence which in-
dofles a field is within this doctrine. It is neoesaazy for the use
and ooonpation of the ground^ and can not be remoyed without
injury to the freehold; on alienation, it passes with the soil: 2
Kent^s Oom. 842; 8 Bac. Abr. 68; Hutchinson y. Mtins, 1 Al. A
Nap. 156, dted in 2 Harr. Dig. 1168. That the defendant
placed the fence in question on the land of another by mistake,
does not alter the matter; it was no less a part of the freehold
for that reason. Being the property of the United States in
consequence of its annexation to the soil, it passed to the plaint-
by yirtne of his purchase of the land on which it stood.
By OouBT. The judgment is afBrmed with costs.
Whatbvsb n AmnzED to Fbxehold genflnUy beoomes part of it, and
can not be rwmoyed: Oaldwdl v. Sneaa, 12 Am. Dec 681; liUler v. Phumb,
16 Id. 466; OoonUm y. Jordan^ 22 Id. 296. See also generaUy as to what an
fixtures, the note to Oray v. HoUakip, 17 Id. 686, in which the qnestion as
to f enoes becoming part of the realty, is considered at pages 690 and 683.
Fiin>LEY V. State.
[6 BULOKVOBD, 879.]
Gbanob of Vxnux in Cbqokal Gabs is Dxsobxtionabt, and a rafossl
thereof can not be assigned as error.
OvxBBUUNo OBJxcnoN TO Pboof of Difbvdakt's STATBinDiTS in answer
to promise of favor by a -witness, by assisting to clear him of a charge
of crime, if he would state certain facts to the witness, is not error
where the statements, when introdnced, show on their face that they
were not made in any expectation of procuring the promised benefit^
and that they coald not have any tendency to procure such benefit.
OlBOUMRANTiAL EviDSNGS Nbsd kot bx SO GoNOLUSiyx in a criminal case
as to exclude every possibility of the defendant's innocence, in order to
Justify his conviction. If the jury, from the evidence, are satisfied of
the defendant's guilt beyond any reasonable doubt, they may convict
him, although there is no evidence proving or tending to prove it impos-
sible for another person to have committed the crime.
DsiXNiitAira's Failubx to Disfboyx Somx of ths OiBOUifBTAiroxB proved
against him in a criminal case should have no weight with the jury, if,
from all the circumstances proved, they are not satisfied of his guilt be-
yond a reasonable doubt
Ebbob to the Jackson cirouit court. The case appears from
the opinion.
J. O. Marshall, for the plaintiff in eiror.
S. (/Neal, for the state.
568 FiNDL£T V. Statk [In<
BLAOKVOBDy J. Indictment far murder by shooting the
deceased 'with a lifle. Plea, not gniltj. Motion for a change
of venue orerraled; verdict against the defendant; motion
for a new trial oTermled; and judgment on the verdict. The
errors assigned are as follows: 1. The refusal of the court to
change the venue. 2. The admission of illegal evidence.
8. The refusal of the court to give certain instructions to the
jury.
The first error assigned is insufficient. The statute relative
to a change of venue in criminal cases, after setting out the
causes for which the prisoner may petition for a change of venue,
saysy ** which change of venue tiie said court may, at its discre-
tion, award:" B. S. 1888, p. 608. Under this statute, the granting
or refusiDg of a petition for a change of venue, is entirely a
matter of discretion with the circuit court, over which a court
of error has no control. It is not enacted that, upon the
prisoner's malring an affidavit of the existence of either of the
causes named in the statute for a change of venue, the venue
shall be changed; but the enactment only is, that the party in
such case has the right to petition, and that the court may, at
its discretion, change the venue. Although a legal cause for
filing the petition exist, the right is still reserved to the court
to overrule the petition if they think proper.
The second error assigned, viz., the admission of illegal evi-
dence, is also insufficient. The statement in the record as to
this point is as follows: '' On the trial of the cause, Thomas
Orabb was introduced as a witness on the part of the state, and
testified before the jury that he stayed at the house of the de-
fendant the night after the body of the deceased, Leroy Gilbert,
was found; that early the next morning, the defendant asked
him to go out of the house with him, and he accordingly went
with the defendant out of the sight and hearing of the com-
pany; that thereupon, when alone with the defendant, the de-
fendant asked him what he thought of his, the defendant's,
case; that the witness then stated to the defendant that he had
studied out a plan, provided the gun could be found, by which
the defendant could come clear, or which would be to the de-
fendant's advantage (the witness did not remember which form
of expression he used); that the witness told the defendant he
knew the common talk was that the man had died last night ox
a short time before, and the wife of the deceased said his gun
would go off half cocked; that if defendant knew where the
gun was and would tell him, the witness would take it and
May, 1841.] Findlet u State. 659
ihrow it ^thin some reasonable distance of the place, and
when the coroner came, ihej would not know whether he shot
himself 01 not. The witness was then proceeding to state what
ihe defendant said to him, when defendant objected to the wit-
ness* stating any confessions made to him by the defendant
«fter the aboTe proposition was made to the defendant by the
witness, because such confessions were induced by the prospect
beld out to him by the witness, that the condition of the de-
fendant would be bettered thereby, but the court OTerruled the
objection and directed the witness to state them. The witness
accordingly stated that the defendant, in reply to him, said:
' Oh Gk>dl Tom, that would never do; they would find out bet-
ter; they would find out he was shot plumb dead;' that the wit-
ness then said to the defendant, ' Did you kill him, William?'
The defendant answered no."
Whether any promise of favor made by the witness, he not
having any autiiority, can exclude any confessions made by the
defendant under the influence of such promise, or whether the
witness' language to the defendant, if otherwise unobjection-
able, was calculated to produce the undue influence, recognized
by the law as rendering confessions made under it exceptionable,
are questions which we shall not now stop to examine. Assum-
ing, for the present, the aflBrmative of these questions, we must
inquire whether any confessions of the defendant tending to
show his guilt, and made under the influence to which we have
alluded, were given in evidence ? It is true, that the prosecutor
proposed to introduce such evidence; that the defendant objected
to it; and that the court overruled the objection. But still we
are of opinion that no such confessions, made under such influ-
ence, did, in reality, go to the juiy as evidence; and if they did
not, then the decision of the court in favor of their admission
did not injure the defendant, and he can not complain of it. It
is obvious that the statements of the defendant, admitted in evi-
dence after the objection was overruled, though they had been
made in reply to the proposition of the witness, were not made
under an expectation that such statements would produce that
advantage to the defendant, which it was the apparent object of
the witness to obtain for him, nor, indeed, that they could pro-
<!ure for him any other advantage; and if the statements in ques-
tion were not made under any such expectation of benefit to be
received by the defendant in making them, the objection to tiiem
as evidence, on the ground that they were so made, has no foun-
dation. Looking at the nature and object of the statements.
660 FiKDLET V. State. {Jm
and the cirotimBtaiioes under which they were made, we consider
them to have been made freely and Yoluntarily, and, of coarse,
not subject to the objection urged against their admission.
The last error assigned relates to the instructions to the juij
asked for by the defendant and refused; and it must be observed,,
as to this part of the cause, that the evidence was all circumstan-
tial. The following is the first of these instructions: '* To con-
vict the defendant on circumstantial evidence alone, the circum-
stances must be of a conclusive nature; they must exclude, or
tend to exclude, the possibility of the truth of any other person
than the defendant being the murderer." This instruction, we
think, was correctly refused. It can not be indispensable to a
conviction on circumstantial evidence, that the evidence should
exclude, or tend to exclude, the possibility that any other per-
son than the defendant committed the crime. If the jury be
satisfied from the evidence, b^ond a reasonable doubt, of the
defendant's guilt, they may convict him; and they may be so
satisfied without evidence proving or tending to prove that ii
was impossible that another should be the guilly person.
The second of these instructions is as follows: *' It the testi-
mony before the juiy does not prove the guilt of the defendant
beyond a rational doubt, the fact that the defendant does not
disprove drctmistances proved before them ought not to give
additional weight to such circumstances as are proved, unless
the jury believe the defendant has the means of disproving them
if they be false." This instruction ought to have been given.
If the circumstances proved did not satisfy the jury beyond a
rational doubt, of the defendant's guilt, he was entitled to an
acquittal, whether he did or did not disprove any of those
circumstances; and the court, when asked, was bound so to in-
struct the jury. The record shovns that the court gave a general
charge to the jury, but as it is not set out, it can have no influ-
ence on the case.
By Court. The judgment is reversed and the verdict
Cause remanded, etc.
CoNFBasiONS Madb undkb Encoubaokmxnt to expect &.vor, nrfmtwihilHy
of as evidenoe: See 8iaU ▼. Phdp§, 84 Am. Dec. 672, and oases cited in tlie
note tiiereta See abo 8taU v, Soper, 83 Id. S66.
JuBT SHOULD BB Saxbood bbtokd Rbasohablb Doubt in crimiaal oast ia
order to oonviet: Hipp v. Staie^ 88 Am. Dea 463.
May* IMIJ Sitmneb v. State. 561
SxniNBB V. SlAXB.
Edobal or Gbahob or Vmux » CBoavAL Cm ii not ■wtgnrtto m
Btsbt ICatibial CmonifnAiroB must bb Pboybd bbtond a Batiohal
Doubt to Justify a ooQTiotiaii in a criminal case, and every dronmstsDoe
not so proved shonld be discarded in making np the Tordiot.
ByIDBBOB KbBD VOT bb 80 OOHOLimTB A8 TO ElZaLUDB B7BBT PomTKfTJTT
that the erime might have been oommitted by another, to Justify a oon-
viotioQ in a eriminal case.
Bbtubal of IvBTBUcnoN 80 Ambiovouslt Wobdbd that it mi|^t be un-
derstood by an unprofessional man of ordinary capacity in a sense tiiat
woold make it erroneoos, is not assignable as error.
Gebouicbtabtial EviDBircB SHOULD BB 80 Stbobo ss to tend to convince
the jury of the defendant's guilty and to exdnde every supposition incon-
sistent therewith, to warrant a conviction in a criminal case.
LreimuonoN in Capital Cabb that Stbono MonvB must bb Fbotkd
for the commission of the mnider by the defendant, to Justify his con-
viction, if the evidence is circumstantial, and does not show his guilt
with absolute certainty, is properly refused.
Ebbob to the Jaokson oixeiiit oourt. The opimon states the
W. Qtiarles^ J. O. Murshdtt, and A. M. Brovm^ for the plaintifl
in error.
H. O'Neal, for the state.
BLAGDOBDy J. Indictment against the defendant below for the
murder of his wife. Plea not gniltj. Petition for a change of
fenne refused. Verdict for the state. Motion for a new trial
overruled, and judgment on the verdict. The errors assigned
axe: 1. That the defendant's petition for a change of venue
should have been granted; 2. That certain instructions to the
juzy asked for by the defendant and refused, ought to have been
given.
It has been decided at this term, in a case like the present,
that the refusal of the court to change the venue can not be
assigned for error: Findley v. The SUUe [ante, 657.] In exam-
ining the second error assigned, it must be noticed that the
evidence is all circumstantial. The following is the first in-
struction refused: ''Every circumstance matrftrial in this case
must also be proved beyond a rational doubt, or it is the duty
of the jury to discard such circumstance in making up their
verdict.'' This instruction ought to have been given. We think
that if the jury, in making up their minds from dronmstantial
▲m. Bao. Vm.. XZZVI— M
562 SuiCNEB V. State. [Xndianak
eTidence, have a rational doubt as to the existence of any one of
the material circumstances attempted to be proved, that circum-
stance ought not to have any influence with them in forming
their opinion respecting the guilt or innocence of the defendant;
or, in the language of the instruction asked, the jury ought, in
such case, ** to discard such circumstance in making up their
verdict." Mr. Starkie says that it appears to be essential to
circumstantial proof that the circumstances from which the con-
clusion is drawn should be fully established. If the basis be
unsound, the superstructure can not be secure. The party upon
whom the burden of proof rests, is bound to prove every single
circumstance which is essential to the condlusion, in the same
manner and to the same extent as if the whole issue had rested
upon the proof of each individual and essential circumstance:
1 Stark. Ev. 571. These remarks are evidently correct; and
they show that the instruction under oonsideiation ought to
have been given.
The following is the second instruction refused: ** If the jury
believe, from all the circumstances proved in the case, that a
person other than the defendant might have murdered the wife
of the defendant, or she might have destroyed her own life, and
all such circumstances thus proved would be* consistent with
such a supposition, they ought to find their verdict in favor of
the defendant, although they might believe the defendant more
likely to be the murderer than any other person." There may
be some doubt as to the exact meaning of this instruction. If
it mean, that if the jury believed from the evidence, that it
was possible some other person than the defendant committed
the murder, they ought to find for him, no matter how strong,
consistent with such possibility, the evidence might be for the
state, the instruction was correctly refused. It appears to us
that the instruction is so worded, that the jury might have un-
derstood it in the sense which we have mentioned, and in which
it is objectionable.
The following is the third instruction refused: ** Circumstan-
tial evidence, to be sufficient for a conviction in this case, ought
to be of a conclusive tendency; that is, its tendency ought to
be not only to convince the minds of the jury of the guilt of the
defendant, but to exclude the supposition either that the de-
ceased destroyed her own life, or that a person other than the
defendant committed the murder." Considering this instruc-
tion to mean, that the evidence in the case should tend to con-
vince the jury of the defendant's guilt, and to exclude every
May, 1841.] Sxtmneb t;. State. 563
fnipposition inconsistent with his guilt, there is no reason that
the state should object to it.
The last instruction refused is as follows: ** In cases of allegad
murder, proved alone by circumstances, if those circumstances
are not conclusive as to the guilt of the defendant, there ought
to be a motive, and that a strong one, proved, which might have
impelled the defendant to commit the act; and if such proof is
liot made, the jury ought to acquit the defendant." We think
the jury might have understood, by this instruction, that if the
evidence did not show the defendant's guilt with absolute cer-
tainty, they must acquit him, unless there was proof that he
had a strong motiv6 to commit the murder. And if the instruc-
tion might be so understood by the jury, it was rightly refused.
We consider the following language on the subject, by the
writer to whom we have already referred, as correct: '* The legal
test is the sufficiency of the evidence to satisfy the understand-
ing and conscience of the jury. On the one hand, absolute,
metaphysical, and demonstrative certainty, is not essential to
proof by circumstances. It is sufficient if they produce moral
certainty to the exclusion of every reasonable doubt:" 1 Stark.
Ev. 677. It is easy to conceive that the evidence in the case
now before us might not be sufficient to produce, on the minds
of the jury, an absolute certainly of the defendant's guilt, nor
to prove that he had any motive to commit the crime charged,
and yet it might be strong enough to satisfy the jury, beyond a
reasonable doubt, that he was guilty. It appears to us, there-
fore, that there was no error in refusing this instruction.
We have not considered how the second and last of these in-
structions woidd be understood by a member of the legal pro-
fession, as it is a sufficient objection to them, that they might
convey to the mind of an unprofessional man, of ordinary capac-
ity, an incorrect view of the law applicable to the cause. The
record shows that a general charge was given to the jury, but we
are not informed what it was.
By CovBT. The judgment is reversed, and the verdict set aside.
Cause remanded, etc.
EviBKNcx Required to Jusnrr GoNvionoK m Cbdonal Oasmi Sm
FlwlUy y. SUUe^ anU, 557, and note. That where the evidence in a oriniinal
case is drenmstantial and the jury are satisfied of the prisoner's guilt beyond a
reasonable doubt, they should convict him, the prindpal case is cited in Ptih
pU V. KeUy^ 28 GaL 426. Every essential ingredient of the offanse must be
proved beyond a reasonable doubt, to warrant a oonviotioo: PeopU r. Phipp%^
89 Id. 3J3; also dting i^iciiifier v. SUUe,
664 Sanders t;. Johnson. pjidiana^
Sanders v. Johnbok.
[6 Blackvoh>» Ml]
BOIIIAIi Of DmHDAVT'B MOTION FOB LSAYB TO WXTHSBAW FUUL d
the ttetate of limitations, where each mofcioii is sot made until the jmy
haa been partly awom, and if granted would give the dafandant the prir-
il^ge of opening the caae^ ii not an improper ezecetae of the diacfetion of
theooort
BSOLUBIOM OV WITKS88I8 YBOM OOUBT-BOOM 18 DiCBXnOVikBT with
the oonrt, and where the defendant, before eTamlning hia witweawi,
moTes to exdade the plaintifiPa witneaMa, who hare not jret testified,
bat does not include hia own witoeaeea, a denial of andh motion ia not
improper.
iMnwPKB SuFPRxanov ov Dxposmoir n Waivzd by introdnoing anottier
deposition of the same witneas oontaining the aame testimony.
SriDXiroB, nr Aomov fob Slahdkb, of prior reports charging the plaintiff
with the same crime impnted to him by the defendant, without any offer
to explain their extent or effwt upon the plaintiff's chaxaoter. Is inad-
missible in mitigation of damages under a plea of justification.
SnDXHoi OF CmouMaTANcn Cbbatimo Subpioion of FLAmiFFli Qomr
of the offense imputed, but not proving such guilt, is not to be ooosid-
ered in mitigation of damages in an action for dander for chai^ging the
plaintiff with a crime, to which justification ii pleaded, where there is
no proof of such glaring nusoondnct by the plaintiff as to oanae the de>
fendant to beUere the oharge and his plea of justification to be troe.
Dauaoes must vm Palpably Wraamrni or Slabbkb, to wamnt aetting
aaide the verdict, where the ohaige is of an infamous offense, and haa
been publidy and repeatedly made, and juatifioation pleaded with Itttleor
no evidence to support it.
AmAL from Monzoe dzooit oonrt The opinicm states flie
O. P. Hesier and J. 8. WaUs, for «he appellant.
0. O. Dunn, for the appellee.
Dbwst, J. Johnson sued Sanders in wlander for Qhazging
him with perjuiy. The defendant pleaded: 1. The general
issue, which, after two continnanoes from tetm to term, he
withdrew; 2. The statate of limitationB, npon the traverse of
which there was issue; 8. Three pleas of justification, alleging
as many distinct instances of perjuiy against the plaintiff, oom*
mitted on different occasions. De ir^uria replied to eaoh of
these pleas, and issues formed thereon. After a part of the jury
was sworn, the defendant asked leaye of the court to withdraw
the plea of the statute of limitations; leaye was refused. When
the trial commenced, both parties daimed the right to b^gin
with the testimony, and to make the opening argument. The
Nov. 1841.] Sambibs v. Johnson. 665
Court awarded it to the plaintifF. At the time of swearing his
witaesses, and before they were examined, the defendant moved
the oonrt to remove such witnesses as the plaintiff still held in
reserve, so that thej might not hear the defendant's witnesses.
The motion was overruled. The oonrt suppressed one of the
defendant's depositions; but another deposition, made by the
same witness and containing the same matter as that rejected,
was read to the juiy by the defendant. The defendant offered
to prove, in mitigation of damages, that the same charge laid in
the declaration had been reported by others against the plaintiff
before the defendant made it. The testimony was rejected.
The defendant moved the court to give several instructions to
the jury, which, so &r as they were pertinent to the issues, were
given, with the exception of the following, viz. : ** If the circum-
stances proved in the cause create a suspicion that the plaintiff
committed perjury, but do not amount to proof of his guilt,
the jury shoidd consider them in mitigation of the damages."
This charge the court refused. The jury found a verdict for the
plaintiff, and assessed his damages at two thousand seven hun-
dred and thirtynaix dollars. A motion for a new trial was over-
ruled, and fisal judgment rendered upon the verdict.
In regard to the motion for leave to withdraw the plea of the
statute of limitations, admitting this court to possess a supervi-
sory power over the discretion of the court below in permitting
or refusing the withdrawal of a plea after issue — a point which
we do not decide — ^we see no reason for supposing the discretion
was improperly exercised on the present occasion. The defend-
ant suffered the plea to stand at issue until the jury was partly
sworn. The plaintiff, consequently, was compelled to keep his
witnesses in attendance; and as this burden had been thrown
upon him by the defendant, it would have been unreasonable to
deprive him of the privilege, resulting from the issue as it then
stood, of opening and dosing the cause to the jury. Courts,
usually, on the application of either party, cause the witnesses
to be separated, so that they can not hear each other testify.
But this is a matter of discretion; and it does not seem to have
been unsoundly exercised in refusing the request of the defend-
ant in this instance, that a part of the plaintiff's witnesses only
should withdraw. It would have been more reasonable had he
included his own witnesses in his motion.
As to the suppression of one of the defendant's depositions,
we have not inquired whether there was sufficient cause for it or
not. Because, admitting it to have been improperly suppressed.
566 Sandebs v. Johnson. [IndiaDa^
the defendant waived the error 1^ introducing another deposi-
tion, by the same witness, testifying to the same facts contained
in that which was rejected. He sustained no, injury hy the de-
cision of the court, right or wrong. The rejection of the eridenoe
offered by the defendant of the existence of a prior report, im-
puting to the pLuntiff the same crime with which the def endani
afterwards charged him, raises a question of some difficulty.
In the case of Leicester t. Waller, 2 Camp. 251, which was aa
action for a libel in charging the plaintiff with having commit-
ted an infamous offense, the defendant was permitted to give in.
evidence in mitigation of damages, under the general issue, that
previous to the publication of the libel, *' there was a general
suspicion of the plaintiffs character and habits; that it was gen-
erally rumored that such a charge had been brought against him ;
and that his relations and former aoquaintance had, on tfaia
ground, ceased to visit him." This evidence was admitted for
the reason that the defendant had not justified, and because it
established the character of the plaintiff to be " in as bad a sit-
uation before as after the libeL" In the subsequent case of
Snowden v. SmtOig 1 Mau. & Sel. 287, n., in which there was a
justification, it was ruled that prior reports, imputing the sama
crime to the plaintiff with which the defendant had charged
him, should not go in evidence to affect the amount of damages*
The judge who tried the cause distinguished it from Leicester v.
Walter on the ground of the justification. In Kirkham v. Oaefey,
cited in 2 Stark. Ev. 217 — an action of slander for accusing the-
plaintiff with larceny— evidence of his " bad character" was al-
lowed in mitigation of damages, though the defendant had jus-
tified. This decision has been thought to conflict with that of
Snowden v. Smith. But such does not seem to be the fact.
There is a dear difference between a report imputing to a man.
the commission of a specific crime, and the badness of his char-
acter. The report may be unfounded, it may not gain credit, ii
may not injure the character of the individual to whom it refers;.
at least, it is substantially falsified by a verdict against the jus-
tification alleging the same crime. But a bad character might
not, and if it be generally bad could not, be materially bettered
by such a verdict. This consideration, together with the pre-
sumption that a man is always prepared to vindicate his general
character, renders it probable that the general bad character of
the plaintiff may, even under a justification, be given in evidence
with a view to lessen the damages. We do not, however, decide
that question.
Nov. 1841.] Sandebs v. Johnson. 667
In an action of slander for charging the plaintiff with nnnat-
ural practices, decided still later than those aboTe quoted,
Y. Moore, 1 Man. & Sel. 285, evidence of the existence of re-
ports that the plaintiff had been guilty of " similar practices,"
was held to be admissible in diminution of the damages, on the
ground that such evidence would '' disparage the fame" of the
plaintiff, and destroy his right ** to the same measure of dam-
ages with one whose character is unblemished." There does not
appear to have been a justification in this case; and the " sim-
ilar practices" coidd not allude to the specific slander laid in
the declaration; they must have had reference to something
else of like nature, and, therefore, must have had a bearing
upon the character of the plaintiff independently of the wrong
for which the action was brought. Indeed, this evidence fell
but little, if any, short of that of general bad character. In
the case of Wai^man v. Weaver et al. , Dow. & By. N. P. Cas. 10,
which was an action for a libel, Abbott, C. J., ruled that, un-
der the general issue, evidence of &ct8 short of a complete
justification of the alleged libel could not be given in evidence
to mitigate the damages by negativeing the malice, though he
recognized the authority of Leicester v. Walter, on the ground
that the romors, permitted to be proved in that case, tended to
show that the plaintiff had previously lost his character, and
had sustained no injury by the libel. This court has heretofore
held that, under the general issue, bhe '' strong suspicions" of
the defendant, that the words spoken by him were true, could
not be received to affect the verdict, though a general suspicion
of the plaintiff's guilt might: Henson v. Veaich, 1 Blackf. 369.
None of these decisions go further than to establish the doc-
trine, that, under the general issue in slander, general romors,
or a general suspicion of the guilt of the plaintiff of the crime
imputed to him by the defendant, may be given in evidence in
mitigation of damages. They do not sustcdn the loose i>08ition
assumed by the plaintiff in error, that any reports, however
limited in circulation or harmless in effect, which may have pre-
ceded the slander uttered by him, imputing the same crime, are
competent evidence on the question of damages even under a
justification. To admit such a principle would be to concede
that the very slander which ought to be silenced forever by the
failure of the justification, may, nevertheless, become the right-
ful means of depriving the injured person in a great measure
of the benefit of his action, and of leaving his character at last
to the mercy of an artful slanderer. The case of Snovoden v.
668 Sandebs v. Johnson. [Indiana^
Smith J supfxi, is in point, that the mere report is not ftdmissihle
evidence when a justification is pleaded. Several dedsions in
Massachusetts sustain the same doctrine; indeed, they go fur-
ther, and ezdude such evidence under the general issue; though
they recognize the propriety of admitting the general had char-
acter of the plaintiff, either under that issue or a plea justifying
the slander: WalcoU v. HaU, 6 Mass. 614 [4 Am. Dec. 173];
Alderman v. French, 1 Pick. 1 [11 Am. Dec. 114]; Bodwdl v.
Swan and Wife, 3 Id. 376; Lamed v. Buffinion, 3 Mass. 646
[3 Am. Deo. 186]. We, however, only decide that the existence
of prior reports charging the plaintiff with the same crime im-
puted to him by the defendant, without any offer to explain
their extent or effect ui>on the character of the former, is not,
under a plea of justification, legal evidence in mitigation of
damages. The circuit court committed no error in rejecting the
evidence offered by the defendant.
The next inquiry is one, also, of some difficulty. It is this,
should the jury have been instructed, that if the circumstances
proved on the trial were such as to cause suspicion, but not con-
viction, that the plaintiff had committed perjury, they shoidd
be considered in the estimation of damages ? In the case of
Lamed v. BuffinUm, supra, which was an action of slander for
charging the plaintiff with horse-stealing, pleas, general issue
and justification, the supreme court of Massachusetts held, that
under the circumstances of that case, nothing short of absolute
proof of the truth of the words spoken shoidd operate to
lessen the amount of the verdict. There may, perhaps, as was
remarked by the court on that occasion, be instances in which,
though the justification is not supported, the misconduct of the
plaintiff may have been so glaring as to give the defendant reason
to believe that the charge made by him, and his plea justifying
it, are true; in which case, it may be proper for the jury to con-
sider the circumstances developed on the trial in mitigation of
the damages. We have, however, carefully examined the
evidence in the cause before us, and do not think it presents an
instance of the character alluded to. We see nothing in it,
which rendered it the duty of the circuit court to give the
instruction asked for.
Nor are we prepared to say there should have been a new trial
on the ground of excessive damages. Oourts seldom disturb
verdicts on the score that compensation for an injury to char-
acter has been estimated by too high a standard. Taking into
confldideration the infamous nature of the crime charged upon
Nov. 1841.] Sandebs t;. Johnson. 569
the plaantifF, tliat the accusation was znade puUiclj and re-
peatedly in large assemblages of the people when he was can-
▼asaing for an important office; that three distinct charges of
perjury were deliberately made against him on the records of
the court; that with regard to one plea, there was no evidence
at all, and yery little in support of the other two; we do not
feel authorized to pronounce the damages so palpably esoeesiYe
as to defeat the yerdict.
By OouBT. The judgment is afflimed, with one per cent, dam-
ages and costs.
BxGLUSTON OF WiTznnsn ibom Consr-Booif, Powxr of Ooubt ab to: Sao
CommonweaUh ▼. Knapp^ 20 Am. Dee. 491.
BymasroB of PBZoa Bxpobts of Similab Natubs to worda spoken, admis-
sibility of in mitigation of damages in actions for slander: See Cook v. BaMeff,
2 Am. Deo. 843; EoiUnoood ▼. Qwm, 8 Id. 700; WoleoU r. HaU, 4 Id. 173;
TrtcU T. Bfxwmingt 10 Id. 166; Alderman v, Frmeh, 11 Id. 114, and note;
CoOoway v. MiddkUm, 12 Id. 400; Anthony v. StetWM, 13 Id. 407; Oilman v.
Lowdk 24 Id. 06. As to the admissibility of evidenoe of the plaintiff's
general bad charaoter in mitigation of damages in an action for slander, the
principal case is cited in Okurh ▼. Brown, 116 Mass. 600.
EvmasroB nr Mhioatiok of Damaqbs whin JusriFiOATioir Plbadkd in
slander, adnussibility of: See Lamed v, B%ffinU)n, 3 Am. Deo. 186; Wormouth
▼. Cramer, 20 Id. 706. As to the admissibility of evidence in mitigation of
damages under the general issue in such actions generally, see Othnan v.
Lowell, 24 Id. 96» and note, collecting the previous cases in this series on that
point, and TaOow ▼. Jaqneti^ 26 Id. 399; Purple ▼. Horkm, 27 Id. 167, and
note.
BzonnvB Damiois as Qboukd fob Kbw Tbial dt Slahsbb! QmNealr,
Lewie, 1 Am. Deo. 640; Coleman t. Souikwiek, 6 Id. 263; Dougkm ▼. Ikmeey,
sold. 616; DavU t. Ih^, 84 Id. 684.
CASES
Df TBI
COURT OF APPEALS
OF
KBNTX70ET.
MoOee V. Andebbos.
[1 B. MonoB, 187.]
LiVTIMO OV SXYXRAX ARTICLES, OkX OY WBOCB IB
ezeoQtIoiiy is not liable in treftpaae therefor, where the debtor &ili to eleol
before le^y which of them he will cUtim m exempt.
SBiBiFr RsFUSiNO TO Aliow Claim op Exxmption made on day of aale and
proceeding with the sale, where eereral articles are levied on, one of
which may be claimed as exempt, does not become a trespaaser ab JtuHo
nnless the debtor tenders in lien of that claimed other property which is of
equal valne, or palpably sufficient to discharge the debt, or which is the
only property which the sheriff could have levied on if the exemption
had been claimed before levy.
Ebbob to the Calloway drcmit court. The opinion atatee the
J. T. Morehead^ for the plaintiff.
By Court, Mabshall, J. This was an action of trespass, by
McGee against Anderson, for taking and converting the p]aintiff*8
mare. The defendajit justified under an execution against the
plaintiff and others, by virtue of which he, as sheriff, had taken
and sold the mare. The plaintiff replied that at the time, etc.,
he was a bona fide housekeeper, with a family, and had but two
animals of the horse kind, viz. , two mares, and that, electing to
keep the mare levied on, under the statutory exemption of one
work beast, he had on the day of sale, and at and before the
sale, tendered the other mare to the sheriff, to be sold in lieu of
the mare levied on, and which he elected to keep. To this the
defendant rejoined, that at the time, etc., the plaintiff had one
April, 1841.] MoGee v. Anderson. 571
yoke of oxen, beddes, etc. ; and upon demurrer to fliis rejoinder
being oyermled, the plaintiff having &iled to make farttier an-
swer, a judgment in bar was rendered against him, whioh he now
seeks to reverse.
The question made by this state of the pleading, arises on
one of the provisos contained in the thirteenth section of the
general execution law of 1828 (Stat. L. 641), by which it is de-
clared, among other things, that one work beast or yoke of oxen
(of a bona fide housekeeper, with a family) shall be exempt
from execution. If the execution debtor, haying three or more
articles of property, one of which only is exempt from execution,
be considered as haying the right to elect which he will retain,
there was no such election in this case, before the leyy, and
the sheriff certainly was not a trespasser, originally, by the
act of levying on one of the articles, leaving two others, one of
which might satisfy the privilege of exemption; and, conceding
the right of election still to have remained in the debtor, until
the sale, it gaye him no right to impede the execution, or to ren-
der it less effectual than it would have been, or might have been
made by the sheriff, if the debtor's election had been made be-
fore the levy. We are of opinion therefore, that the refusal of
the sheriff to surrender the article leyied on, in allowance of
an election made on the day appointed for its sale, and his then
proceeding to sell such article, woidd not be wrongful, so as to
make him a trespasser ab initio^ unless the debtor should tender
to him for sale, in lieu of the article levied on, such other arti-
cles as he might, in the first instance, have seized for the satisfac^
tion of the debt, or so much thereof as was certainly and palpa-
bly sufficient to discharge the debt, or as was at least equal in
vendible value to the article then claimed to be exempt.
Applying these principles to the pleadings before us, the defend-
ant was clearly entitled to a judgment on the demurrer, because
the replication did not show either that the mare tendered in
lieu of that which had been levied on, was the only property on
which the sheriff might have levied, if the debtor's election had
been made in the first instance, or that it was of sufficient value
to discharge the debt, or that it was of equal value with that
which was claimed from the sheriff. The replication was there-
fore insufficient to make the sheriff a trespasser, and as the re-
joinder certainly did not admit any of these alternative facts
which were omitted in the replication, the judgment for the de-
fendant was right, whether the rejoinder be in itself defective or
672 Watson t;. Cbesap. [Kentacky,
not. 'Wiihoaty Vbeteiaxe^ inqniring into tbe goodness of the ze»
% the judgment is a£Bnned.
QmoBB DnooyxBiiro Propxbtt to bb Bzocpt, avtib Lbtt, icat Rb-
VDBB TO Sell: Poite t. OammanweaUht 20 Am. Dea 213. That a debtor
nrait make hia election of exempt property^ at the time of the levy or witfaia
a reasonable time thereafter, or he will be deemed to have waived the exemp-
iim, iMhM, miaag McCker. AndenoH, in Barieuid y.^
Waxbon V. Gbbsap.
[1 B. MoanoB, 190.]
Pabtt Patdto Dbbt with OoniffTXBJXiT Bill ii liable umnediatelyy upon
aa implied promiae or warranty that it was genuine, whether he knew it
to be oonnterf eit or not, and a retam of the bill before bringing the ao-
tion is nnneoessary.
MovBT Paid fob OomrnourBrr Bill mat bb Kboqitbbxd in an action for
money had and received, and the bill being worthless, a rstom of it need
not be tendered, it seems, before siting.
TBBiDffOKT THAT BiLL IB OoTrNTBBnEiT, IBOM Mbbghants who iiave been is
the habit of receiving and paying away genuine bills on the same bank,
is competent.
Appbal from Hickman oirooit court. The case appears from
the opinion.
Hu^>and8, tor the appellants.
Owdey^ for the appellees.
By Oonrt, Ewino, J. This is an action of assompsit, bronght
by ijie appellees against the appellants, for the consideration
paid for a hundred-dollar bank bill, on the bank of the United
States, passed by the appellants to the appellees, and which is
alleged to be a counterfeit. The suit was brought in a short
time after the bill was passed to the appellees, and the counter-
feit note is exhibited in the record. The declaration contains
three counts, the first a special count, which alleges that the de-
fendants were indebted to the plaintiflh two hundred dollars,
and iMud them in part, in a hundred-dollar bill on the United
States bank, which they assumed to be genuine, when the same
was counterfeit and worthless. The second and third are counts
in indebUahia a8sumpeU; the second, for property and bank bills
sold and deUyered; the third, for money had and receiyed for the
use of the plaintiffs. We think the declaration is substantially
good, and the proof was competent, and justified the yerdict of
the jury. It must be presumed that he who passes a biU as
April, 1841.] Watsok t;. Gresap. 573
money, paBses it as genuine, and the law implies an assnmpsit
or warranty that it is so: 2 Johns. 458;^ 16 Id. 240.' And if the
bill should be oounterfeit and worthless, this implied promise
is immediately, npon passing the bill, broken, and an action
lies for its breach; nor does it matter whether he who passes it
knows that it is connteifeit or not: 2 Johns., supra. The
action is not an action for a fraud, but for the breach of
promise implied by law. And to sustain this form of declaring,
it would certainly be unnecessary to prove that the note was ten-
dered back, as it goes for a breach of promise and not for a res-
titution of the consideration upon a disaffirmance of the con-
tract of payment.
As the first count, in the case under consideration, is a count
on the implied promise, the proof justified the recoyery without
any evidence that the bill was tendered back to the defendants
before suit brought; and the motion to instruct the jury, as in
case of a nonsuit, was properly oYermled. We are also satis-
fied, that if money or other bills, which pass and are received
as money, be the consideration given for a counterfeit bill, that
it may be recovered back on an indebitatus count, for so much
money had and received. Payment for such a bill must be
regarded as a payment by mistake for a thing of no value, but
which was, at the time it was received, believed to be, and im-
ported on its face to be of intrinsic worth: 2 Johns. 458.
But tliis form of declaring proceeds on the ground of a dis-
affirmance of the contract and a restitution of the thing given
in exchange. It is an equitable remedy, and to entitle the
plaintiff to recover, if anything of value has been received, it
must be shown that it was tendered back before the action was
brought. A counterfeit bill is certainly of no intrinsic value, it
would be as worthless in the hands of tiie defendants as in those
of the plaintiffs, and according to the role laid down, it would
seem unnecessaiy to show that it was tendered back, even in
this form of declaring. But whether it was or not, it is not
now necessaiy to detennine, as the recovery was proper on the
first count. We are also equally clear that the testimony
adduced to prove that the signature to the bill was not the
handwriting of the president of the bank, and that the bill was
a counterfeit, was competent. If the testimony of a casual cor-
respondent may be received as competent to prove handwriting,
much more may the testimony of a merchant who has been in
the habit, in the course of his business, of receiving, scrutinizing,
1. JrarUiT.ffa(^UId;S.a,8Am.X>«o.M6. X Bwriek y.WhUmmt.
£74 Peters v. Allison. [Kentucky,
and paying awaygentdne hills upon the same bank, be reoeiTad
as competent.
The jadgment of the cirooit court is afflnned with costs.
PAmxHT nr OouxriRraiT Kors, eflTeot of na^^igeiiM ia mfairnfag tb*
note: Boffmomd ▼. Boar, 16 Am. Deo. 603.
FlBTEBS V. Alubok Aim Febgubok.
[1 B. IComwB, 182.]
PUBOBASBB UVDXB VeBBAL Ck>irnUkCT BBIlfO DT PO88B88IOV bj Wm agoit,
the vendor or his grantee oan not maintain ejeotment withoat proof of
a demand and refaaal by the pnrehaieror agent or of a holding adfenely
before snit bronght or demiae laid.
Adyxbsi Holdinq or Dxkand akd Bxtdbal are not to be implied
from a defense to an ejeotment brought by the vendor against a tenant
of the parohaser in possession under a verbal oontraot of porohaae.
RiFiJflAL TO PiRMiT DisooNnNUANOB AB TO Tenaht in poflsoBsion, where
his landlord has been admitted to defend in an aotion of ejeotment, for
the purpose of making him a witjiess against his landlord, is not error,
beoansi> a disoontinnanoe as to the tenant is a disoon^""^"*^ of the
whole aotion.
Ebbob to the Clarke drooit in an aotion of ejectment. The
questions inyolTed sufficiently appear from the opinion.
Ihimer, for the plaintiflh.
Jppersotiy for the defendants.
By Court, Ewihg, J. Allison having the possession, as the sex-
ton and agent of the church, which obtained the possession under
a purchase from Mason, though Torbal and held, looking to him
for a title, neither Mason nor his vendee had a right of entiy,
or coidd Tnaintain an action of ejectment therefor, without a de-
mand and refusal on their part, or that of their sexton, or proof
of a holding adversely, before suit brought or demise laid.
And the fact of an adverse holding, or of a demand, can not be
implied from a defense to the action, or a resistance to the
lessor's title or right to recover, in the trial, on any ground. It
can not, and ought not to be inferred, from the fact that the de-
fendant, after he has been made to assume an antagonistical
attitude, by a suit brought against him, resists the right to re-
cover against him on any ground, that he claimed or held ad-
versely before he was sued or the demise was laid. The de-
mand proven, is not shown to have been a demand on behalf of
ICay, 1841.] Bbinaoab t;. Philijf& 575
Mason or his Tendeee. He who demanded the pooaoiwion is not
Aowu to haye had any right to the possession.
The oonrt was also right in refusing permission to the lesson
of the plainti£F to discontinue, as to the tenant in possessiony
for the puzpose of making him a witness against Ferguson, who
had been permitted to defend as qiuui landlord, on the port of
the ohoroh. The tenant being sued, as tenant in possession,
had a right to be admitted a defendant, that he might defend
his possession. His possession was the object of the snit, nor
conld a suit have been commenced at all, but against the
tenant in possession, and the object of the controyersy is to try
ihe right to his possession. The landlord being admitted to
enter JiitwoAlf as a defendant, does not and can not have the
eflBact to expand the controTeny. He is allowed to defend for
and on behalf of the tenant, but the defense is still restricted
to the possession or right to the possession of the tenant, and
can no more be prosecuted separately against the landlord,
without and against the will of the tenants, than it could orig-
inally haye been instituted against the landlord, who was not,
at the time, in possession. A discontinuance of the suit, as to
the tenant, would haye been a discontinuance of the whole
cause of action, not only against the tenant but against the
landlord: OroeheU y. LaMrook, 6 Mon. 640, 641 [17 Am. Ded.
98].
Judgment a£Brmed, with costs.
Poflsnsioir undxb Ooktraot or Sals is ob m rot Anysasi, WHiirt Sm
Oneno r. MuMon, 81 Am. Deo. 606; ValetUine ▼. Oaole^, 33 Id. 166; LarUm
y. Bani </ Moniffom^y, Id. 324; Meadow$ v. HophiM^ Id. 140, and omm
«ited ia the notes thereto. Advene possession wiU not be presomed against
one residbig on land withoat proof of some tortioos set on his part or a refa«
sal to deliysr possession; Pwmai v. TViytor, 34 Id. 726.
BbINAGAB V. PinTiTiTPS.
W B. Momos, 383.]
fimuTT n ROT Bklbassd bt mxks Verbal Assent to Irdulobhos it
the principal for a specified time, without the surety's consent, there being
no consideration or new secarity taken for sach assent.
Ebbob to Louisville chancery court. The principal qoestion
in the case appears from the opinion.
Thurston^ for the plaintiff.
Loaghborough, for the defendants.
676 BBorAOAB t;. Phillifs. [Eentackj,
By Ooort, Mamhalt., J* The principal question preeented in
ibis ease, and that upon whioh a reversal or affimumoe of the
decree exdnaiTelj depends, is, whether a surety is released by an
indulgence granted to the principal debtor upon an agreement
or rather a mere Terbal assent to give indulgence for a specified
time, at the request of the principal, without any consideration
real or apjMurent, without any new security taken, or even con-
templated, and without the knowledge or assent of the surety.
This is perhaps the first occasion on which this court has
been called on to decide the question, as to the release
of the surety in the precise form in which it has just been
stated; but the doctrine inyolyed has been discussed and
analyzed in many cases, in this and other courts, and the
plain principle to be adduced from these discussions and de-
cisions is, that the surety is released, when by an azxange-
ment between the creditor and principal debtor, without his
consent, his right to compel the creditor to the immediate coer-
cion of the debt from the principal, or what is the same thing in
effect, his right to make immediate payment to the creditor and
in his name and right to coerce payment from the principal
debtor is impaired, and that he is, in such cases, released, be-
cause his right, as aboTC specified, is impaired by the arrange-
ment, when the creditor is thereby precluded from immediately
coercing the debt: Cooper and Wife t. IWier and Smith, 7 J. J.
Marsh. 396; Sneed'a Eafr y. While, 3 Id* 627 [20 Am. Dec. 175];
Kirh Y, Baldwin, 2 Johns. Ch. 556, and cases there cited; Hb-
Lemore y. Powell, 12 Wheat. 554; Norton etc. y. Bobertaon,^ 4 Mon.
491; B6bert8(m v. OffvU,* 7 Id. 540.
Oould the creditor then, in this case, notwithstanding the
verbal arrangement supposed in the question above stated, have
resorted to the immediate legal coercion of the debt whenever
after it became due the surety shoidd have required him to do
so ? We are decidedly of opinion that he could, and that the
arrangement or the assent to the requested indulgence woidd
not only not have constituted any legal bar to such immediate
coercion (which we do not decide to be essential), but that it
would not, either in equity or in good conscience, present any
obstacle to an immediate call and suit for the debt, at the requi-
sition of the surely, and when the failure to sue might discharge
the surety and jeopard the entire demand. For the fair pre-
sumption would be that such an assent to the indulgence re-
quested, being given from mere motives of benevolence, without
1. jr«riM»T. Ao6«r<i. S. JMImmit. Q#Wk
May, 1841.] Bbinaoab v. Phtt.ltps. 577
oonsideiation or prospect of advantage to the oreditor, was in-
tended for the benefit of the surety as well as of the prin-
cipal, and was founded on his presumed assent, and that,
therefore, wheneyer he should, in fact, dissent and claim his
rights under the contract, the creditor would be free from every
obligation which coidd arise from an assent purely gratuitous
and benevolent, and founded upon the presumption of a fact
which, as afterwards ascertained, did not exist.
' The consequence of this view is, that the right of the surely
not being actually impaired to any extent by the arrangement
or assent supposed, he is not released upon the ground of the
equitable principle which has been assumed as deducible from
the cases; and indeed, it being admitted on all sides and in all
the cases, that mere delay to coerce the debt, without any words
expressing an intention or assent to give delay for a particular
period, would not release the surely, it seems obvious that to
decide that the mere verbal expression of such intention or
assent, without consideration or new security of any kind, would
be efiEBctual to discharge the surety and perhax>s with the loss of
the debt, woidd be giving a consequence to the very light
shadowy distinction which might be drawn between the cases,
wholly disproportioned to any actual and substantial difference
between them. All the cases above cited, except the two last,
we regard as strong and almost direct authorities in favor of the
conclusion to which we have come in this particular case, and
the two last cases, when properly considered, do not, as we
think, essentially contradict it. It is only deemed necessary to
add, in this case, that in our opinion the proviso to the eighth
section of the act of February 2, 1837 (Ses. Acts, 106), does not
apply to this case, but only to cases in which the jurisdiction of
the court is founded upon the right of subjecting property or
debts, etc., of a non-resident, and the jurisdiction to decree in
this case, is unaffected by the said proviso.
'Wherefore, the decree is reversed, and the cause remanded
with directions to render a decree in favor of the complainants
for the amount of the demand set up in the bill, with interest,
etc.
RiTiSASi OF SuuRT BT Iin>VLQB9CK TO PBurcirAL: See BmnU ▼.
SUUe$, 90 Am. Deo. 584; Trenyper v. ffemphiO, 81 Id. (173; Oooper ▼. WUeo9^
82 Id. 095, and cases cited in the notes.
Am. Dbo. Vol.
678 Wall v. Hill's Hktm, Kentucky,
Wall v. Hill's Heebs.
11 B. Uoanom, 990.]
Hubs ot Obabtok Who was of UiiBonND Mind »t the time of oonvtey-
anoe, may recover in ejectment against the grantee, withoat restitatioo
of the parehaae money.
GftAKTIB, tS GoNySTANOB VoiDABLB ON GbOUND OF GbANTOB'b IBBAKITT,
IS Ebtofpkd, in an action of ejectment brought by the grantor's hei^^ to
deny the grantor's title.
iBQuismoK AFTiB Makino OF Bbed FINDING Gbantob Inbanb, and le-
gally incapable of contracting at the time of the execntion of each deed,
though exparUf is prima/aeie evidence against the grantee in ejectment
brought by the grantor's heirs.
GAPA0IT7 TO TBANBACT BuSINBSS ** WITH JUDOMINT AND DnCBBnON," IS
not necessary to be shown to support the validity of a deed of a grantor
against an inquisition, subsequent to the execution of the deed, finding
him to have been of unsound mind and incapable of managing his affairs
at that time; as indiscretion and defect of judgment may exist withoat
legal incapacity.
Pbbpondbbanob of Evidence on Dbfendant's Pabt Is not necessary ts
overcome a prima/aeie case in favor of the plaintiff's rig^t to recover IB
ejectment; equiponderance of evidence is sufficient.
Ebbob to Qarrard circuit. The opinion states the case.
Owdey arid Turner^ for the phuntiff.
Bradley ^ for the defendants.
By Court, Robbbtson, 0. J. William Wall seeks the reversal of
a judgment of eviction, rendered against him in an action of
ejectment by the heirs of John Hill, deceased, who in his life-
time, to wit, in the year 1834, had conveyed the land in contest
to Robert Bumsides, under whom Wall holds. The only ground
for claiming the right of entry, asserted by Hill's heirs since his
death, which occurred in the year 1839, was his alleged incapac-
iiy to make a binding conveyance at the date of the deed to
Bumsides, and which they attempted to sustain, and did estab-
lish successfully in the opinion of the jury, by an inquisition in
1838, finding that he was then, and had been &om 1822, '' of un-
sound mind,'' and " incapable of managing his own afiairs with
ordinaiy prudence," and by the concurrent testimony also of
sundry witnesses examined on the trial.
Admitting the fact of legal incapacity at the date of the con-
veyance to Bumsides, we have no doubt that Hill's heirs had,
at his death, a right of entry, and might, therefore, maintain
this action upon the refusal of Wall, as proved, to surrender
the possession to them: Litt. Sel. Cas. 405; Co. Lit. 247 b;
Booth on Beal Actions, 189; Huympgon v. Leach, Comb. 468.
May, 1841.] Wall v. Hills Heibs. 579
notwithstanding the erroneous opinion, once prevalent, that a
man conid not, even in a civil case, ex contractu, stultify him-
self, courts of equity established the practice of avoiding the
contracts of persons of unsound mind, upon bills filed bj their
committees, after inquisition of unsoundness; and in all such
cases the chancellor, acting upon equitable princix)les according
to a sound discretion, would decree only such restitution as
would place the parties as near as possible in statu quo. But the
right of entry by the heir was legal and perfect, without any
restitution of the consideration paid to the ancestor; and an
equitable right to such restitution was not available in an action
of ejectment, in which legal rights only are triable.
We are also of the opinion that Wall, holding and having en-
tered under a voidable conveyance from Hill, is estopped in this
action to deny Hill's title to the land, and should upon the elec-
tion by the heirs to avoid the deed, be deemed a quasi tenant at
will. Nor do we doubt that, as decided by the circuit judge, the
inquisition in this case, though in a great degree ex parte, was
prima facie evidence against Wall, and without any superfluous
approval thereof by the court to which it was returned. And
we are of the opinion also, that the evidence on the trial prepon-
derated in favor of the verdict. But nevertheless, it does seem
to us that the circuit judge went too far when he instructed the
jury that before they could find for Wall '* on the score of Hill's
capabilify to understandingly transact his own business with
judgment and discretion, they should be fully satisfied that the
evidence of defendant outweighs the said inquisition and all the
other evidence whidi has been added by the plaintiff in this case,
in regard to the unsoundness of the mind of the said John Hill,
sen."
" Discretion" and *' judgment" are rather too comprehensive
and indeterminate. Indiscretion and defect of judgment may
exist without legal incapacity to make a valid contract; and it is
not true that the defendant's testimony should '' outweigh" that
of the plaintiff. If the evidence be equiponderant, the jury
should find for the defendant. Before a plaintiff can be entitled
to recover, his evidence of right must '' outweigh" that of the
defendant.
As, therefore, this instruction may have been delusive and in-
jurious, we must, on that ground, reverse the judgment and re-
mand the case for a new trial.
Iksanity, Right of Grantor or his Heirs or Reprbseittatitks to
Avoid Deed on Ground of: See the note to Jackson v. King, 15 Am. Dea
580 Million v. CoiDioxwEALTU. [Kentucky,
364-367. See also Omng«* ease, 17 Id. 311; Ilarriaon v. Lemov, 23 Id. 376;
Befuell T. Chancellor, 34 Id. 561. Inquisition of lunacy after contract ia
made, effect of: See Jackson v. Kimj, 15 Id. 354. See generally as to the
effect of an inquisition of lunacy as evidence, Den y. Clark, 18 Id. 417;^
UAmoreux v. Crotby, 22 Id. 655; HtUchitmon v. Sandt, 26 Id. 127, and cnooa
cited in the notes thereto. The deed of a lunatic at common law was Toid:
Matter qfDesUver, 28 Id. 645.
Million v. Commonwealth fob the Use op
WrrHEBS.
{1 B. MOVROB, 810.1
BzBOUTioir FxBST Levixd has Pbiok Lien though it be a jonior ezeoatioii,,
and oomes last to the officer's hands, where different ezecations against.
the same defendant are delivered to different offioers for aenrioe.
Xjubuutioh Fntn Bbckivmd mr OmoiB havino Ssvxb4L Exjguutiohh-
against the same defendant plaoed In hia bands at diflbrent timea, miisi
be fizat leried and paid.
APTMIAL EXIUUTJONB DSUVKBID TO JhWWMBMKT DXFUTUB OF SAMS QHMBOWWp.
at dUEermt times, moat be regarded as deliTared to the sheriff person*
ally, for the pnrpoae of determining the right to priority of levy and
Mtiibotion, and the writ fixst deliTered to any of the depatiea mnst b»
first paid oat of the prooeeda of a sale made by any otlier of the depatiea
on a writ saboeqnently received, if the prior writ is broaght to the notio»
of the deputy making thesale before he haa aotoallypaid overthe money^
and for arefasal so to apply the prooeeds thesheriff is liable on his bood»
Bbbob to Harriflon droait. The case is stAted in the opinicnL.
IHnMe, for the plaintiff.
Curry, for the defendant.
By Court, Ewino, J. This "waa an action of debt against
Million, a sheriff, for a breach of his official bond. The facts
were agreed, from which it appears that Million was sheriff of
Harrison county and had appointed two depaties, one of whom,
J. Henry, was to perform the duties of the office on the east
side of Licking, which intereected the county from south to
north, and the other, M. Moon, was to attend to the duties on
the west side of the river; that an execution o{fi.fa. was placed
by the relator in the hands of Henry on the fourteenth of June,
1839, in his favor against Manson and Aaron Ashbrook, the
former of whom lived on the east side of the river, and the latter
on the west side; that three executions in &vor of other creditors
against Aaron Ashbrook, were placed in the hands of M. Moon on
the twenty-first of June, 1839; that the deputy. Moon, levied
the three executions in his hands on the property of A. Ash*
May, 1841.] Million v. Commonwealth. 581
'brook,and sold the same and paid the money to the plaintiffs in
the executions that were in his hands; that, on the day of sale,
lie was shown the execution in favor of the relator and required
to apply the money to that execution as the one which had come
first to hand. The question upon these facts is, whether the
sheriff is liable, upon his official bond, for the failure and re-
fusal of his deputy, M. Moon, to pay the money made by him to
the relator on his execution.
The following principles may be collected as settled by the
-various adjudications upon the statute of 29 Chas. II., c. 8, sec.
16, and on our own statute, 1 Stat. L. 636: 1. That between
execution creditors there is no priority of lien other than that
which is secured by a levy: 8 J. J. Marsh. 212;^ Harrison v.
WUson, 2 Marsh. 551, 552; Payne v. Drew, 4 East, 545. 2. That
when several executions are placed in the hands of different au-
thorities, each competent to act, and commanded by the writ to
do so, that the prior lien attaches in favor of the first levy,
though made upon a junior execution, and one which came last
to the hands of the officer: 4 East, supra; KiUby v. Hoggin , 8 J.
J. Marsh. 212, 218, and authorities supra. But 8. To secure
perfect fairness and impartiality in the officer, between execution
creditors, when several executions are placed in the hands of the
same officer at different times, he is required to levy that first
which first came to his hands, and to apply the money accord-
ingly: Tabb V. Harris, 4 Bibb, 29 [7 Am. Dec. 782]; Arberry v.
Noland, 2 J. J. Marsh. 422, and authorities supra.
The provision in the eighth section of our statute, supra,
which directs the officer to pay the money upon the execution
which first came to his hands, is applicable to the same officer
only, and was intended to establish a rule, and inculcate its ob-
servance upon the officer, who had at the same time several ex-
ecutions in his hands in favor of different plaintiffs, by which
he might be guided in the impartial discharge of his duiy, in
the levy as well as in the payment of the money made, and was
not intended to secure to either a prior lien over the rest. If
therefore, the office of sheriff is a imit, and the sheriff and his
deputies constitute only a single officer or agent of the law, then
it would follow from the foregoing principles, that the execution
which first came to the hands of either, must be first levied and
the money paid upon it; and a failure to levy or to pay, though
the levy had been made upon an execution which came last to
band, would be an act of partiality which would amount to a
1. KiXby V. Hoggin,
582 Million v. Cohmonwealth. [Kentucky^
breach of duly that wonld render the principal liable for the
amount. But though there may be many deputies, there is bui"
one office of sheriff in a county, and that is filled by a single
officer, to whom all process is directed as such, and who alone
is looked to by the law, and required to do what is commanded
by the precept to be done, and alone is rendered responsible for
a breach or dedication. He may have deputies and sub-agents,
to assist in the performance of the duties enjoined on him, but
those deputies are not distinct officers, nor are they looked to or
treated by the law as such, or made responsible for official de-
falcations. Though their minJBtiftrial powers can not be limited
or restricted by their principal, what they do is done in his name
and by virtue of the command of the process directed to him
and under the authority conferred on him. What the law in-
culcates on him to do, they should do, and when done, their
acts have the same force and effect as if done by the prindpaL
When, therefore, an indorsement is made by a deputy of a
time when an execution came to his hands, as required by the
stntute, it must be construed to have the same force and effect
as if made by the principal, and if so, and the deputy's duly is
precisely that which is inculcated upon his principal, as the
officer of the law to whom the process is directed, it follows that
as it would be unquestionably the duly of the principal to levy
and pay the money upon the senior execution or the one which
first came to hand, so it would be the duly of his deputies. Had
the executions which were placed in the hands of the two depu-
ties, Henry and Moon, come to the hands of their principal, and
he had made the indorsement, it certainly would have been his
duly to pay the mon^ on the senior execution, and giving to
each of their indorsements the same force and effect as if made
by himself, and making his duly theirs, it became equally
obligatory upon his deputy. Moon, to make the same applica-
tion of the money. Nor can he complain of ignorance of the
existence of a senior execution in the hands of the depufy,
Henry, for he was apprised of it before the sale or payment of
the mon^ on the executions in his hands, and our statute ex-
pressly requires that " the execution which came first to hand
shall be first satisfied." And though it has been settled that
when executions come to the hands of distinct authorities, that
a lien attaches in favor of that execution, though junior, which is
first levied; yet it has also been determined in the construction
of the statute of Charles 11., supra, that if the same officer levy
under an execution last delivered, he may apply that levy to the
May, 1841.] YocuM v. Polly. 583
ezeoation whioh iraa first delivered, though no warrant issued
thereon: Jones v. Aiherton, 7 Taunt. 66; Hutcheson y. Johnson,^
1 T. B. 729. But he had sold the goods by virtue of the writ
last delivered, the property of the goods was bound by the sale,
and could not be seized under the first writ, but the party in-
jured had his remedy against the officer: SmdUcomb v. Bvjcking^
ham, 1 lid. Baym. 251; S. 0., 1 Salk. 820; Com. B. 85; Payne v.
Drewe, 4 East, 528.
If, therefore, it were the duty of the deputy. Moon, to do that
which was the duty of his principal to do, had he, through mis-
take or ignorance of the prior execution in the hands of Henry,
levied junior executions, when apprised of it, it was not only his
priviLBge but his duty to sell under the senior and apply the
money accordingly; and if even he had sold before notice of its
existence, under our statute at least, he had the right, and it
was his duty, at any time before he had parted with the money
made, to apply it in satisfaction of the execution first delivered
to the deputy, Heniy . And this construction of the powers and
duties of the principal and his deputies, is calculated to produce
harmony and concert of action among them all, and to prevent
secret arrangements and collusions between any one of them,
and the more cunning and artful creditor, to the injury of other
credjix>rs.
It IS therefore the opinion of the court that the judgment of
the circuit court be affirmed with costs and damages.
LiXN OT BxsounoN Belates to what Tdcx: Bee BatUe y. BeAng, 27
Am. Deo. 026; BuUer y. Maipuurd, Id. 100, and oaaee cited In the note* to
thoee dedsione.
PiaoBrnr nr Oabb ot Ssvkbal BxEonnoira AOAntn Saxb Dibiob: See
Orven y. Jokmon, 11 Am. Deo. 763; Palmer y. Olarie^ 21 Id. 340; Johmatm
y. BaU, 24 Id. 461; Stebbina v. Walker, 25 Id. 490; Miehie v. Planlere* Bamk,
34 Id. 112; and oaaes oited in the notes thereta The principal case is cited
and distiogaiahed on this point in Bogen y. Viekey, 1 Oihn. 640.
ToouM V. Polly.
[1 B. Monoa, 808.]
FsuoBKOunov u Terminated bt Emtbt ov Nolle PBosEQcn; the aoooae^
may then sae for » malicious prosecution.
Dbohabob b7 Nolle Pbosbqui is not Prima Facie Evidbnce ov Malio»
or of want of probable cause to sustain an action for malidons proseon-
tion.
584 YocuM V. PoLLT. [Eeniocky,
Maugb and Wamt ot Pbobablb Gaubb must both bb Awjobd AX1>
Pbovxb in an action for malicioiu prosecation, and thoo^ tiie teiBflr
may be inferred from the latter, the latter can not be inferred from tilt
fonner.
PiJtTT AonNG nr Subobdihatiovto Ck>iafoirwBAiffK'8 Attobnbt, in a prate*
cation institated by the latter's direction, from information darired from
others, is not liable for a malicioos proeeoation, though he is aetoated by
against the aooosed.
AfFBAL from Washington droait. The opinion Btates fha
Ouffdey and O. A, WvMiffe^ for the appellant.
Morehead and Seed, for the appellee.
By Court, Mabshall, J. This was an action for a malicioiiB
prosecution brought by Polly against Yocnm. The declaration
avers that the defendant malidonsly, etc., and "withoat probable
cause, procured a warrant to be issued for the arrest of the
plaintiff on the charge of being present, aiding, and assisting ia
the murder of Preston Coulter, upon which he was arrested,
imprisoned, and remained in prison untQ he was brought before
the justices and put upon his trial, and the evidence being
heard, the prosecution was dismissed by the commonwealth.
The warrant and its indorsements show that several others were
arrested with the plaintiff, on the same charge; that two of the
others having been brought up for trial, and the evidence being
heard, the justices discharged one of them, and the attorney for
the commonwealth directed a nolle prosequi as to the other, and
also directed a noUe prosequi as to the present plaintiff. We do
not regard this as a substantial variance between the allegation
and the proof. Nor do we doubt that the entry of a jnoUe
prosequi, by the attorney for the commonwealth, was such a
tormination of the prosecution as authorized the bringing of
this action, if the prosecution was in fact malicious and without
probable cause, and if Yocum can be regarded as, in any proper
sense, the prosecutor.
But a discharge from the prosecution by a noUe prosequi is
not prima fade evidence of malice, or of want of probable
cause, from which malice may always be implied: 2 Sel. N. P.
259; 2 Stark. Ev. 918. In the case of Murray v. Long, 1 Wend.
140, it is decided that proof of malice alone will not support
the action; that malice may be implied from want of probable
cause, but the want of probable cause can not be implied from
the most express malice; and it is well settled that both must
concur, to sustain the action. And as both must be averred bj
Ifay, 1841.] TocuM v. Polly. 585
Hhe plaintiff, so he mast adduce some proof tending to establish
lK>th, or at least tending to show that the prosecution was with-
out probable cause, from which malice will be implied: 8 Stork.
"Sll-dlB. Storlde says: "It is invariably necessary to give
«ome evidence arising out of the circumstances of the prosecu-
tion, to show it v^as groundless, it is insafBdent toproveamere
■acquittal, or even to prove any neglect or omission on the part
of the defendant to make good his charge," etc.
But on another branch of the case, the evidence strongly
•conduces to prove that any agency which the defendant may
have had in the prosecution, so far as the plaintiff was con-
•cemed, v^as wholly in subordination to the commonwealth's
prosecuting attorney for the district; that the defendant with
other friends of the murdered man had determined to prosecute
the actual homicide alone, unless, upon the evidence on his
irial, it should appear that the plaintiff and others of his party
who were present, ought to be presented; and that the plaintiff,
otc., would not have been prosecuted, had not the common-
wealth's attorney, upon information not derived from the de-
iendant, directed the constable, who was acting in the business,
to procure a warrant against the plaintiff and others. If this
"he so, we are well satisfied that whatever malice the defendant
may have had against the plaintiff, and there is but little proof
of any, he can not be liable for a prosecution thus instituted by
the immediate direction of the public attorney, and in which he
•did nothing, but in subordination to that officer, and to effectuate
his directions. If being, as he was, a justice of the peace, he •
had, on being informed by the constable of the attorney's
•directions, actually issued the warrant, this would not have im-
plicated him, and much less, as we suppose, was he implicated
1^ merely writing the body of the warrant, as requested, when
neither the constable nor the other justice who was applied to
was able to make it out without a form, and it makes no dif-
ference if he, in conjunction with the constable, applied to the
other justice for the warrant which had been directed by the
attorney. As to any subsequent agency which he may have had,
nothing appears, except that he was used and consulted with by
ihe prosecuting attorney as a near friend and relative of the
•deceased, not instigating the prosecution so far as the plaintiff
was concerned, nor officiously interfering to cany out even the
•directions of the attorney. If these inferences of fact, which
the evidence conduces to establish, are just, surely the opinion
and directions of the attorney for the commonwealth, foimded
686 GoLLETT V. Jones. [Eentacky^
on inf oxmation not derived from fhe defendant, must have tbo
effect of protecting him from liabilify 'or such an agency as la
herr Buppoeed.
U^n considering the instruction given and thoee refused hj
the ooort, we are satisfied that the principles of law, applicable
to the case, were not fairly placed before the jury, and eq^edally
that due effect was not given to the agency which the common*
wealth's attorney may have had in institating and condnotinf f
the prosecution without the instigation of the defendant; and
on this ground, as well as because there was no proof of want
of probable cause for the prosecution, we think a new trial
should have been granted, and especially as the proof adduoed
by the defendant, on his motion for a new trial, and which he
was not prepared to introduce on the trial, because, as he says,
he was not in fact the prosecutor, and did not suppose he
would be required to prove probable cause, do most Btnmgly
tend to the establishment of probable cause.
Wherefore, the judgment is reversed, and the oaose lemanded
for a new trial.
PaoBiBLB Oauu AMD BvmsMOB OF: Sm 6frtfb V. ABofv, SI Am. Deoi.
422; Stone y. Stepem^ SO Id. 611, and notot.
Mauoi akd Wamt or Pbobablb Cause boch Nbobbbabt to mBintHA
aotioD for malicioaB proaecation: Turner y. VToflbsr, 22 Am. Deo, 829; LeSdSff^
y. Bawmm^ 29 Id. 854; 8Ume v. Ste9ms, 80 Id. 611, and oMea dtad in notoa.
PaiBOirBB DmoHABOXD wzxHouT Tbial Kosr Show EznoBBS Haucb to-
aoatain aotkui: Frowman y. SmUh, 12 Am. Deo, 266, and note.
Aomio UKDXB AsvxGB or CouBSKL, eyidenoe of, to rebat malioe in a
proaeoation: See the note to Frcwnum y. Smith, 12 Am. Deo. 266. See a]a»
Tuner y. Wdlier, 22 Id. 829^ and note.
GOLLEIT V. JONBB.
[a B. Monoa. 19.]
MoBTGAOB or Pbopbbtv Exsuft rBOM EzBounoir doea not mder anob
property or the equity of redemption therein aabjeot to exeoatkm by tfao
mortgagor's oreditora.
Ebbob to the Wayne cirooit in an action of replevin. Hie
case appears from the opinion.
L, Hard, for the plaintiff.
By Court, Mabshall, J. The thiriy*sixth section of the gen*
eral execution law of 1828^ (Stat. Law. 653) subjects to execution
the interest of a mortgagor in such property only as would have
Sept 1841.] Brizendine v. Frankfort Bridqe C!o. 687
been subject to execution if he had not mortgaged it; and therefore
the pioperfy of a debtor, which, by the thirteenth section of the
same statute, is declared to be exempt from execution^ does not,
in consequence of being mortgaged by him, become subject to
execution against him, nor does his equity of redemption be-
come subject. The voluntaiy subjection of such exempt prop-
erty as a securiiy for one debt by way of mortgage, is not a
renunciation of the privilege of exemption, beyond the regular
operation and effect of the mortgage itself.
The fact alleged in the plea, that the mare, for the taking and
oonversion of which this action of trespass was brought by OoUett^
had been mortgaged by him before the levy and sale under execu-
tion set forth in the plea, did not affect the plaintiff's right of
action for taking the mare from his possession and concerting
her to the defendant's use, if she was his only work beast, and
he was a btmafide housekeeper with a family, and did not claim
the exemption of any tools as a mechanic. And as the replication
to the plea stated these last-mentioned facts, it was clearly sufft*
dent to maintain the plaintiff's action and to avoid the effect of
the execution, levy, and sale set up in the plea, and the court
erred in sustaining the demuner to it and giving judgment
thereon for the defendants. The declaration states that the^
mare was taken from the plaintiff's possession, and the mort-
gage was wholly immaterial.
The judgment is therefore reversed and the cause remanded,
with directions to overrule the demurrer to the plaintiff's repli-.
cation to the defendant's second plea, and for farther proceed-
ings conformable to this opinion.
Bbizesndinb Ain> Haweinb v. Fbakkfobt Bbidgb
Company,
P B. MoMBO^ 83.]
JvDOMKHT AOAnrsT Okx Jodvt Owner ov Chattil in an action brought
by bim for an injury thereto precludes him from maintaining with his co-
owner a Bubeequent joint rait for the eame injury; and rach misjoinder
may be taken advantage of by a plea in bar or in abatement, or by a mo*
tion for a nonrait.
Ebbob to the Franklin oironit. The opinion states the oasa
HewiU and Hemdon^ for the plaintiffs.
(hosley, Morehead^ and Beed, for the defendants.
688 Beizendine v. Frankfort Bridge Co. [Kentucky,
By Court, Bobsbtson, C. J. Bxizendine and HawkinB, as joint
owners of a male slave and wagon and team, described in their
dedaiation, sued the Frankfort bridge company, in trespass on
the case, for an alleged injury to the said properly, resulting
from the falling of the bridge whilst the slave, wagon, and team
were passing upon it. The corporation pleaded, in abatement,
a former verdict and judgment rendered in bar, on the general
issue, in a similar action previously brought against it by Bri-
sendine alone, for the same injury to the same properly. The
circuit court having overruled a demurrer to that plea, and the
plaintiffs failing to reply, judgment was rendered abating this
action. And the only question we shall now consider, in revis-
ing that judgment, is whether the plea is good; for if the mat-
ter pleaded was sufftcient to bar the joint action, as we think it
was, then a preliminary question, as to the defendant's right to
file a plea in abatement when this plea was first offered in court,
need not be decided. The judgment, as exhibited, against Bri-
zendine, in his separate suit is, in form and legal effect, a conclu-
sive bar to another action by himself alone, for the same cause.
The verdict is '' for the defendant,'* and the judgment thereon,
is that ** the defendant go hence," etc. On the general issue, as
tried in that case, Brizendine had a legal right to recover one
half of the damage to the joint property; and even if the circuit
judge erroneously instructed the jury otherwise, the only means
of avoiding the bar was either to have suffered a nonsuit or pro-
cured a reversal of the judgment which, on the hypothesis sug-
gested, was erroneously rendered in bar of the sole action.
Then, as the judgment against Brissendine alone still remains in
full force, and he therefore has no cause of action, can he and
Hawkins mftinfa^in this joint suit for the identical wrong as to
which the former is thus, for the present, at least, barred by a
valid and subsisting judgment against him? We think not.
The misjoinder is fatal, and might have authorized a judgment
in bar of any future joint action for the same cause; for such a
judgment would not affect Hawkins' separate right of action in
his own name alone for the injury sustained by him as one of
the owners of the damaged property. As he was no party to
the first suit the record thereof would be inadmissible as evidence
against him, and in such a case, ex delictOy a separate action by
him could not be either abated or barred by the non-joinder of
Brizendine.
To a plea in abatement for non-joinder in such a several action,
he might reply that Brizendine had been barred by a judgment in
Sept 1841.] FuQATE V, Clabkson. 589
a pieyioiis action brought by him alone, and such a replicaiion
-wonldhaTe been good; for neither a recovezy of hia aliquot portion
of damages by one partonmerof property in an action foratort,
nor a judgment againet him alone, in suchan action, can be aTail-
aUy pleaded to a separate action by another part owner: 7 T. B.
279;> 8 Eib. 244; 5 East, 407;' and Baker t. Jetodl, 6 Mass. 460 [4
Am. Dec. 162]. But though Hawkins is not barred by the judg-
ment against Brizendine, and the record of that judgment would
not be admissible against him, yet as Brizendine is barred, he can
not join in this action with Hawkins, and there is, therefore, in
this case, a clear misjoinder, which was available to the defend-
ant either by a plea in abatement, or a plea in bar, or a motion
for a nonsuit. As, therefore, this action might have been barred
for misjoinder, the parties have no right to complain of a judg-
ment abating it merely.
Oonsequently the judgment of the circuit court is afBxmed.
FUGAXB V. GlABKBON.
£2 B. MOMBOB, 41.]
1loBaraA0BB or Obatxbl can not Maintain Rxplbvin aoainbt Bhsbiiv
ing the same on^ /a. agamat the mortgagor while in the lattor's pooeee-
■km, and threatening to sell in dierogard of the mortgagee's title. Some
tortioos act ia neceanry to oonttitate the iherifr a tnapaner ab MHo
in raeh a case, and a mere threat to aell the property abaolntely is not
Bofficient.
Ebbob to Pendleton circuit, in an action of repleyin. The
ease appears from the opinion.
M^rehead and Bead, for the plaintiff.
IHmble, for the defendant.
By Court, Robebtsom, 0. J. In this case the only question is
that which was stated, but left tuidecided, in Mblsaacs v. ^o6&8,
8 Dana, 271, and that is, whether a mortgagee, entitled to the
possession of movable properly remaining with his mortgagor,
may maintain an action of replevin therefor against a sheriff who,
though apprised of the mortgage, had taken it under 2kfi.fa, as
the absolute property of the mortgagor, and had avowed his
determination to sell it without regard to the mortgagee's claim
of title. And this point being now, for the first tunc, fairly pre*
1. 89igmoirfk t. OvctmmI. a. BUmam t. Btt^bmrd,
600 FuGATE V. Clarkson. [Kentucky*
•ented for judicial decision, we are of the opinion that the &ct8
just stated aie not sufficient for maintaining the action.
Although the mortgagor's possession, in this case, might be
deemed that of the mortgagee, jet the equity of redemption
being nevertheless liable to sale under the execution, the sheriff
had a legal right to take the property into his possession and
hold it until after a sale according to law; and, until after an
illegal sale, or some other tortious act malring the officer a tre^
passer ab initio^ the mortgagee can have no right to divest him
of his possession. His expressed determination to disregard
the mortgage, can not be judicially recognized as an illegal act
or sufficient proof that he had violated the law in taking the
properly, or would, in fact, violate it in the sale. Notwith-
standing such declaration, he might sell subject to the mort-
gage, as he would still have the indisputable right to do, and
ought to do, if the mortgagee's title be good against the execu-
tion creditor. In such a case, if the mortgagee desire the pos-
session of the property, instead of interposing to prevent a sale
by the officer, who might sell legally and without any wrong to
him, he should wait until the sale, when, if the equity of re-
demption only shall have been sold, he will be entitled to resti-
tution of possession from the sheriff; and if the absolute title
shall have been illegally sold, he may replevy the property either
as against the sheriff, before delivery to the purchaser, or as
against the latter if he shall have taken it wrongfully into his
possession. Any other doctrine would seem to us to be not
only unnecessary for the security of the mortgagee, but sub-
versive of justice and inconsistent with the policy and analogies
of the law.
Wlieref ore, as the decision of the circuit court is inconsistent
with this opinion, the judgment must be reversed and the cause
remanded, with instruction to render judgment for the sheriff on
the special verdict.
MoBTOAOXs's KioHT OT AoTiON AOADTST OmosR Beizing the mortg^^ed
property ander tkJL /a, against the mortgagor: See Scmders ▼. Vance, 18 Am.
Dec. 167. The principal case is cited as an authority on this point, and
distingaished in Tannahill r. TuttU, 3 Mich. 118; Nel»(m y. Wheehek, 46 lU.
27.
OcL 184L] MoBBis v. EvANa 691
MoBBiB V. EvAira.
[S B. Uommoim M.)
f oiHT JuDamnr Dibtob Pathto whole Dibt vndflr an waqpnm agrseoMot
with the oraditor that aaofa payment is not to be deemed a wtiffaetion of
the Judgment* bat that mioh debtor shall have the ri^t to enforoe the
nine against Us co-debtors, is entitled to be snbrogated to the creditor's
rights for the purpose of obtaining oontribation from such co-debtors,
and where saoh debtor has proonied ezecation to be issued upon the judg-
ment, which the creditor moves to quash, the court wiU, upon proof of
the facts, overrule such motion.
Ebbob to Estill drouit. Motion to qnaah exeoation. The
point to be determined appean from the opinion.
numer, for the phdntifF.
Banaon, for the- defendant.
By Ooort, BoBBBTSOii, 0. J, TbeonlyqoestionweBhallnotioe
in this case is, whether after one of several principal obligors in
a judgment shally without coercion, have advanced the amount
thereof to the creditor, upon an express agreement between them
that the advance shall not be considered a payment in satisfac-
tion of the judgment, but that the party who made it shall have
a right to issue execution thereon against himself and co-defend-
ants, and control the same, he is entitled to such an equitable
subrogation as to authorize a court of law, upon proof of these
&cts, to overrule a motion by the judgment creditor, to quash
an execution issued (without his consent at the time of emana-
tion) at the instance of the party claiming substitution?
Had the party malring the advance been shown to be a surety
merely, although a simple payment by him without proof of any
special agreement, would necessarily operate as an extinguish-
ment, yet he would have had a right upon malring a voluntary
advance of the money, to stipulate expressly with the creditor
for substitution, and then the payment should have been consid-
ered as merely the consideration of that equitable transfer, and not
as a satis&Mstion of the judgment, which would frustrate the object
of the parties. And in such a case a court of law would not permit
the judgment creditor to control an execution on the judgment,
issued at the instance and for the benefit of the surety. This is
according to a principle of the civil law and of universal equity,
which has been more than once recognized by this court. Does
not the reason of the same equitable doctrine equally apply, to
some extent, to a party who is boundasa co-principal? We can
not perceive why it does not. If he be legally bound in the first
692 Bishops v. MgNaby. [Kentucky^
instanoe, to pay the whole debt, so is the saxefy. The only dif-
f erenoe between them is that a payment bj one entitles him to
restitution of the whole, and a payment by the other entitles him
to a reimburaement of only a part of what he paid. This only
difference should not, in our judgment, essentially affect the qnes*
tion we are considering in this case. Its only effect should be to
prevent the substituted party, if he be one of several principal
obligors, from enforcing the execution against his associates for
his own aliquot portion of the joint debt. To that extent he is^
in equiiy, as well as in technical law, principal as between him-
self and his co-obligors; but beyond it he is, as between them-
selves in equity, only a surety.
It, therefore, seems to us i^t the circuit judge did not err m
this case, in overruling the judgment creditor's motion to quasb
the execution, and consequently, the judgment must be af-
firmed.
&xmjat*B BzoBT to be Subbooated to rigfati of oroditor whore ho hao poia
tho doht: Soo McOkmg y. Beirne, Si Am. Deo. 7S9; Sddif v. Tramr, SI Id.
961; Bami qfMmUpdkr y. JHoum, 24 Id. 040, and notor
Bishops v. MoNabt.
[3 B. liOMBOB, 182.]
KonoB BT Onb Gontbactino Pabtt or Tna aitd Plaob when ho will pvo
oeed to perform the oontraot need not be in writing.
NonoB TO Onb ot Two Jomr OovrBAornxa Pabtixs of the time and phM»
when the other party will i«ooeed to perform the oontnct, ia aoffioient.
Inbtbuctiok to Find as in Gasb ov Nonsuit is in the natore of s demnrret
to eyidenoe, whioh admits the evidence, oonoedes its truth, and ia predi-
cated upon it.
InOOICPBTBNCT ov WiTNBSS VBOM InTBBBST IS NOT GbOUND OV In-
BTBUcnoN to find aa in caae of nonanit, bnt the objection should be takea
by a distinct motion to exclude the evidence.
Appeal from Bath circuit in an action of covenant brought by
the appellants againt the appellees on a certain contract, whereby
the appellants sold and covenanted to deliver to the appellees
between the fifteenth and twentieth of October, 1837, six hun-
dred fat hogs of a specified description, to be delivered in suob
pens as the vendors should select, within ten miles of Elizaville,
the vendees covenanting to pay therefor on delivery a certain
sum per hundred-weight. Other facts, so far as material, are
stated in the opinion.
N<nr. 1841.] Bishops u McNabt. 693
Herd and Apperwny for the appellanta.
Owsky^ iot the appellees.
By Oonrt, Ewxno, J. This case was formerly before this court,
on Uie appeal of the now appellees. The history of the case
and principles settled by the court, on the facts then exhibited,
will be found reported in 8 Dana, 150.^ Upon the retom of the
cause to the circuit court, the plaintiffs amended their declara-
tion, adding other counts, in one of which a general averment
was made of reasonable and legal notice to defendants, of the
time and place of weighing and delivering the hogs, and in an*
other an averment that they had caused the defendant. Walker,
to be duly and properly notified on the second of October, 1^7,
that the plaintiffs would commence weighing and delivering the
said hogs at Amus Hart's (describing the place), on Monday,
the sixteenth day of October, 1837, and after weighing and de-
livering so many of the said hogs as should be weighed at the
said Harfs, that the plaintiffs would forthwith go from thence
to Abner Hord's, and weigh and deliver the residue of the said
hogs in the covenant mentiohed, and that Hart's and Hord's
were both within ten miles of Elizaville; and that the time for
weighing and delivering all of the said hogs at Hart's and Hord's,
commencing on the sixteenth of October, 1837, was amply suf-
ficient, before the latest convenient hour of the day, on the
twentieth of the same month. The defendants filed two pleas,
in one of which they deny notice to Walker, on the second of
October, as averred in the declaration, and in the other they
deny that the plaintiffs had six hundred hogs at two pens within
ten miles of Elizaville, or that they weighed or set them apart,
of the description mentioned in the covenant, or that the de*
fendants refused to receive them.
After the 'plaintiffs' counsel had adduced all their evidence,
the court, on the motion of the counsel for the defendants, in-
structed the jury as in case of a nonsuit, and the plaintiffii have
appealed to this court. The evidence is objected to by the ap-
pellees, as insufficient to support the action, on the following
grounds: 1. That the notice to Walker was in parol, and not in
writing; 2. That it was given only to one of the joint con-
tractors; 3. That it was proven by Wallingford, who was in-
terested on the side of the plaintiffs.
We think that neither of these objections is sustainable.
1. We know of no rule which requires that notice of the time
1. MeNaUy ▼. BiAcp.
AM, Dm. Vol. XXXVI— 88
694 Cnr OF LomsviLLE v. Htatt. [Eeotacky,
and place irhen one of the conizacting parties will pzooeed to
perform the contract on his part, shall be in writing. All that
can be required is that the other contracting party shall be ap-
prised, in due time, and with sach reasonable certainty of the
time and place of performance, as will enable him, if he, in good
&ith, intends a'compliance with the terms of his contract, to
attend at the time and place designated. And this may be
effected by a parol communication as well as by wxiting.
2. We also think that notice to one of two joint oontraoting
parties, is sufficient. Bat if this were doubted, the jury may
have inferred from the letter written by McNary to one of the
plaintiffJB, that he had been apprised l^ Walker, his oo-con-
tractor, or some other, of the times and places at which the
plaintiffJB intended to go on to fulfill their contract. 3. If it
were conceded that WaUingf ord was interested on the side of
the plaintiffs, to the extent of the costs, from the payment of
which he had not been released l^ the plaintifb, and was, there-
fore, an incompetent witness; yet the instruction should not
have been given on that ground.
An instruction to find as in case of a nonsuit, is in the natoxe
of a demurrer to the eyidence which admits it, concedes its truth,
and is predicated upon it; and it matters not whether it be given
by an interested or disinterested witness. To allow the motion
to prevail, by a virtual exclusion or rejection of the evidence by
the judge on the ground of the interest of the witness, would be
calculated, in practice, to take the plaintiffiB by surprise, and do
him manifest injustice. If his evidence were rejected by a dis-
tinct motion, made to that end, the objection to the witness
might be removed by release, or his evidence supplied by other
wi^esses, which he would be deprived of the privilege of offers
ing, if the motion to instruct as in case of a nonsuit, were to pre-
vail on the ground contended for.
Judgment reversed and cause remanded, that a new trial maj
be granted.
GiTT OF Louisville v. Hyais.
[9 B. liOHBOB, 177.]
Stitutb must bb Clbablt Unoonstitutional before the court wiU pv»-
nounce it invalid.
Chabtbb Authobizivo Majobitt of Lot Ownbrs - on a Sqvabb to r»-
qnire the grading and improvement of streets bounding their ■qnare, al
the expense of lot owners on such square, by petition to the city coun-
cil, provided the council unanimously direct sucn improvement to bt
made, is constitutionaL
May, 1841.] Crrr of Louisville u Hyatt. 595
OsDnfAircB OF Cmr CoxmoiL Allbgkd to have dben '^D^lt Made,"
irhere sach allegation is not denied, will be presumed to have been
passed by a unanimons vote as required by the city charter.
Okdrtancb of City Counoil mat bx Imfeaohed by showing that it was
not passed in the manner required by the charter, and the corporation
books are not conclusive ou that point
Cost of GaAOixti SrREET should be Distributed among the lot owners
on a square, by imposing upon each his aliquot portion of the whole cost,
estimated according to the extent of his lot on the street.
MujuoiFAL Council are Final Judges of Utilitt of street improvements
which they are authorized to make, and the remedy of a lot owner, if
any, is by action, and not by resisting the order for the improvement.
Bbsob to the Lotdsville chanoexy court The oMe appears
from the opinion.
Owsley, for the plaintiff.
ChUhriey for the defendant.
PirUe, for the owners of the lota.
By Court, Bobbbtson, 0. J. The ninth section of the charter
of the city of Lotiisyille, 1828, re-enacted and in force yet, pro-
vides, " that the mayor and council shall have power and author-
ity to cause and procure all the streets and alleys, now estab-
lished, or hereafter to be established, to be paved and turn-
piked at the cost and expense of owners of lots fronting such
streets or alleys, and a petition of the owners of a majoriiy of
lots or parts of lots fronting on any square, shall be sufficient
to authorize a contract for paving or tumpildng the streets
or alleys in such square; provided, however, the mayor and
council, by their unanimous consent in council, may cause any
street or alley, in any square in said ciiy, to be paved, etc., at
the cost, etc., of the owners of lots, etc., fronting such streets
or alleys, without any petition, and when such paving, etc.,
shall be completed, they shall apportion the costs, etc., equally
on the lot-holders, and a lien is hereby created on the lots, etc.,
for the same." The tenth section of the charter makes the
same provisions in reference to *' grading, filling up, and level-
ing sireets;" and an act of 1836 authorizes a suit in chancery for
enforcing the statutory lien.
It will be seen, on comparison, that the provisions of the ninth
section of the charter of Louisville are substantially the same as
those of the eleventh section of the charter of Lexington, as
quoted and expounded by this court in the case of The City of
Lexington v. McQuillan's Meirs, 9 Dana, 614; and therefore, the
same authoriiy being given to the mayor and council of each of
596 Cnr of Louisville r. Hyatt. [Kentucky,
those cities l^ the ninih section of the charter of the one citjr and
the eleventh section of the charter of the other city, so far as it
may be constitutional, when exercised by Lexington, it must be
equally so when exercised in the like manner by Louisville.
And although we frankly admit that we have never been per-
f ectiy satisfied as to the constitutional validity of the power in-
volved and considered in the case of The GUy of Lexington t.
McQuillan's Heirs, supra, yet still feeling, as we did when we de-
cided that case, that we are not able to perceive clearly or to
prove satisfactorily that the legislature, in enacting the eleventh
section of the charter of Lexii^^n, transcended the boundaries
of legislative power prescribed by the supreme organic law of
the state, it does seem to us that we should be justiy chargeable
with wandering from the appropriate sphere of the judidaxy de-
partment, were we, by a subtie elaboration of abstract prin-
ciples and metaphysical doubts and difficulties, to endeavor to
show that such a power may be questionable, and on such
unstable and unjudicial ground, to defy and overrule the public
will as clearly announced by the legislative organ. Whenever
this court shall be well convinced that a legislative act is un-
constitutional, it should not hesitate to pronounce it so, and
therefore, to disregard it as void. But the policy and justice of
legislation belong, not to judicial but to legislative discretion.
And to merely doubt legislative power is not enough to justify
judicial resistance. We do not feel inclined, therefore, to retract
or essentiaUy qualify the opinion in the case of 7^ Cify q^ i^eann^
ton V. McQuiUan's Heirs, neither subsequent reflection nor argu-
ment having, in any degree, shaken our judgments as to the
correctness of it.
In that opinion we suggested, that so far as improvement of
streets may be concerned, the charter had virtually subdivided the
ciiy into subordinate quasi municipalities or communities, each
consisting of the lot-holders in a defined square — and is not this
substantially true? Does not the charter of each of the cities
of Lexington and Louisville authorize '' the owners of a major-
ity of lots or parts of lots fronting on any square," to require
the improvement of any street bounding their square, at the ex-
pense of all the owners of ground on their portion of that
street, and also authorize the mayor and council, by unanimous
vote in council, to make the like improvement of fractions of
streets by squares, at the like distributive cost of the local
proprietors ? And in this anomalous provision, in one aspect of
it BO democratic and in the other so carefully guarded, against
Ifay, 1841.] Omr of Louisvillb t;. Htait. 597
oppression or gross injnstioe, we have been unable to peroeiye
any sufficient ground for deciding that the fundamental law of
the state has been Tiolated; and we presume that, in the pru-
dent exercise of this police authority, unreasonable inequality
of burden will rarely, if ever, be imposed, considering the past
and prospective improvement of the several squares in the same
prescribed mode. But in this case, on a bill filed by a con-
tractor against several owners of ground on a street fronting
their square in Louisville, for enforcing payment of the sums
assessed against them respectively, for improving that portion
of the street without their consent, but under an ordinance of
the mayor and council, the chancellor decided that the pro-
vision in the charter which purports to authorize the imposition
of such a local burden is unconstitutional, and, therefore, he dis-
missed the bill as against the proprietors and rendered a decree
in the contractor's favor against the corporation itself, which
was also a party defendant.
And in that opinion, the learned chancellor, in criticising, as
he was pleased to do, the suggestion as to the subdivision, as
just defined, of the aggregate municipaliiy, and characterizing
such a corporation as Briarian, thought fit to illustrate bis con-
viction of its absurdity, in the following manner: '' But as the
giant BriariuB, of fifty heads, was buried under Mount ^tna
for his crimes in assisting the giants against the gods, so this
gigantic corporation of more than one hundred and fif iy heads
(son of Somnus and Luna) ought to be buried under poppies
in a cave, where the sun never penetrates, for warring against
the constitution and common sense." We could not wander so
far from the judicial path as to reply to the venerable chan-
cellor's misapplied apologue, from the most fanciful of Grecian
poets of old; we have thought proper to quote it for publica-
tion in our legal reports, only as an illustrative episode to a
constitutional argument by a patriarchal jurist. But, not
acknowledging mythology to be law, nor Hesiod to be authori-
tative on a question of political power in Kentucky, we must still
adhere to the opinion in The City of Lexington v. McQuillan's
HevrSy Somnus and Luna, and the poppies, and even cave,
in terrorem notwithstanding.
But the order for grading the street in this case does not ex-
pressly show that it was adopted " by the unanimous consent of
the mayor and coundlmen" in council, and on this ground also,
the chancellor has decided that no legal authoriiy for the grad-
uation has been shown. There is neither any direct allegation
598 Crrv of Louisville v. Hyatt. [Kentucky,
nor exixaneoas proof of such unanimity, and without an oiuua-
imouB vote of all the oouncilmen and the mayor in council, the
order was illegal and Toid. This is one of the chief conservative
principles of the charter on this important subject, and shoolcl
therefore be strictly enforced. The bill, however, alleges that the
order was '* duly made," the copy of it as exhibited imports that it
was made in council * ' by the mayor and council," and the answers,
though they deny the constitutional validity of it on other
grounds, do not suggest any doubt as to a want of the required
unanimity. Upon such a bill and such answers, we are of the
opinion that the order, as exhibited, should, prima faciei be
presumed to have been made in the mode prescribed by the
charter. As functionaries, acting openly for the welfare of the
local public and under official responsifaility, the acts of the
mayor and council should, in some degree, be accredited as reg-
ular and legal: usurpation without an apparent motive, should
not be presumed; unanimity was indispensable to the legal au-
thorily to make the order — ^the order was made *' l^ the mayor
and council," and, therefore, upon the pleadings in the case,,
we feel authorized to presume that the order was made by the
unanimous vote of the mayor and oouncilmen "in council:"
AngeU on Corp. 290; CommonweaUh v. Wo€^i>er, 8 Serg. & B. 2^
[8 Am. Dec. 628]. The order, however, as entered on the mu-
nicipal journal, is not conclusive. It may be impeached and
shown, by extraneous proof, to be void for want of the unanim*
iiy required l^ the charter; for, though the entries in the cor-
poration boob may be evidence against the corporators, it is
not conclusive: AngeU, 289-291, and the Case of 8i. Marjf^
Church, 7 Serg. & B. 680.
Nor do we concur with the chancellor in the opinion that
there was no sufficient proof that the street was legally estab-
lished, or was within the jurisdiction of the city authorities; an
order for opening it had been made upon notice to Cosby, who
held the only beneficial interest in the ground, and it has since
been recognized as a street and used as such by the holders of
the property on each border of it. All this is, we think, suffi-
cient for this case. The necessary consequence of the foregoing
view of the case is, that, as the local law authorized a bill in
chancery by the contractor against all recusant lot-holders for
their distributive portions of the price of his work on the street
opposite their squares, there is error in the decree dismissing the
bill against them in this case, and in rendering a decree against
the corporation — ^tbe contract binding the mayor and counci)
May, 1841.] CiTT OF LoxnsviLLE v. Hyatt. 599
only to make an assessment and give orders on the proprietors,
aa they had done before the bill was filed. The contract was
for the cutting and grading of the street '' preparatory to pav-
ing," and stipulated for the payment of tweniy-five cents ** per
square yard," for cutting, grading, and removing the dirt. That
portion of the street assessed in iliis case, was four hundred and
ninety by ninety, aud the width of an intersecting street in ad-
dition thereto. The excavation was from five to seven feet, and
the ciiy engineer assessed the total contract price therefor at
three thousand and tweniy-four dollars and seventy-five cents,
the whole of which, excepting so much only as was allowed for
the intersecting street, was distributed pro rata, among the
owners of ground on each border of the street.
But the chancellor, construing the contract as entitling the
undertaker to only twenty-five cents " per square yard," accord-
ing to superficial mensuration, reduced the assessment to one
thousand two hundred dollars, that sum being twenty-five cents
a yard for the superficial contents of four hundred and ninely
by ninety feet. A square yard, when applied to a surface,
means, of course, superficial measure, but when applied to a
solid, it might and generally would import solid measure or a
yard every way, according to the subject of mensuration; and,
therefore, as an excavation of unascertained extent in depth
was the subject-matter of the contract in this case, the '' square
yard," though abstractiy it would mean a superficial yard, may
have been, and probably was, intended to mean, synonymously
with cubic yard, the square yard or 3rard eveiy way of the solid
contents of the excavated ground. And this interpretation
would be fortified by the fact that the mayor and council and
the city engineer seem to have so understood the contract.
But, as this subject is one, concerning which there may be
some latent doubt, and as, moreover, it was not directiy litigated
in the court below, and the cause will be remanded, we will not
now conclude any farther and extraneous proof. We here deem
it but prudent to suggest that a gross abuse of a just and prov-
ident discretion, either in agreeing to allow a stranger, as un-
dertaker, an exorbitant compensation, or in refusing to permit
the local proprietors to do each his distributive portion of the
required work, if they or any of them propose to do so, and
offer a satisfactory guaranty thereof, might furnish some ground
to a court of equity for resisting the stranger's prayer for en-
forcing the statutory Hen against the proprietors, or for reduc-
ing the amount and remitting the complainant to the corpora-
600 MoBEHEAD V. JoNE& [Ecucacky,
tion for what he may lose thereby in his suit against the pro-
prietors. We will only add that, in distributing the burden of
the entire cost of the exoaTation, each lot-holder on the squares
divided by the graded street should be required to pay, not one
half the cost of the grade opposite to his ground, but his ali-
quot portion of the whole cost, estimated according to the rela-
tive extent of his lot on the stireet; and also, that although tha
mayor and council are the final judges of the utility of the pre-
scribed improvement, yet, if any of the proprietors have been
damnified, his remedy, if any, is by action, and not by resisting
the enforcement of the order for graduation.
Decree reversed and cause remanded for such fiurther proceed-
ings and decree as may be proper, according to the principles of
this opinion.
Statute must bi Clbablt Ukcoabtitutionai. before the ooorfe will de-
eUre it void: TaU ▼. BeU, 26 Am. Dec. 221; Hoke v. Henderson, 25 Id. 677;
Lane v. Dortnan, ante, 543. To the same effect in People ▼. GolUne, 3 ICcfa.
404, dting the principal ceae.
AuTHoarrr or Mitniczpal Gobfokation to Gbabi ob Rbbeapb Sibsbs:
SeeiTaa^v. OU^ qf LonUviUe, 29 Am. Dec 306, aodnota
MOBEHBAD V. JONEB.
[2 B. MosiBOB, 310.]
OiHBB Pabts or Pamphlet Alleged to be Libelous in certain paia*
graphs may be read in evidence by the defendant to explain the para-
graphs upon which the action is founded, to show the motive and intent
of the publication and mitigate the damages.
BnDENCE IN MrnoATiON OF Dakaqes is admisnble notwithstanding a
plea of justification.
Ebbob to the Bracken circuit. The opinion states the case.
Payne and WdUer, for the plaintiff.
Morehead and Reed, for the defendant.
By Court, Evmo, J. This is an action for a libel brought by
Morehead against Jones, in which a verdict of one cent in
damages was found for the plaintiff, and judgment rendered
thereon, and he has brought the case to this court. The action
was for certain paragraphs contained in a pamphlet alleged to
have been composed, printed, and published by the defendant,
of and concerning the plaintiff, charging him with perjury and
an attempt at bribery, and subornation of perjury. The de-
fendant pleaded justification. On the trial the plaintiff read to
Dec 1841.] MoREHEAD u Jones. COl
the jury, from the printed pamphlet, such of the paragraphs as
were set forth and charged in his declaration as libelous. The
defendant was permitted to read to the jury, from the same
pamphlet, certain paragraphs immediately preceding and sac-
ceeding those cluurged in the declaration to be libelous, and
read hj the plaintiff to the jury as such, showing that the
pamphlet was composed and published in answer to a letter
previously written and published by the plaintiff, in which it is
said he ruthlessly assailed the character of the defendant, and
also referring to his informant as to the charge of perjury, as a
man of character and truth, standing upon terms of intimacy
with the plaintiff, and not likely to make a statement unfounded
in truth, so injurious to his reputation. To the reading of
these paragraphs by the defendant the counsel for the plaintiff
objected, which objection was oyemiled by the court, and the
only question presented in the record for the consideration of
this court is, was the opinion of the circuit court correct in
permitting those parts of the pamphlet to be read as evidence to
the jury. We can perceive no good reason for excluding the
evidence read; it was part of the same pamphlet which con-
tained the libelous matter, and on the same subject, and was
properly received as explanatory of the subject-matter, occasion,
motive, and intent of tiie publication. In the case of JSotchkisa
V. Loihropf 1 Johns. 286, the court permitted a previous pub-
lication against a third person to which the defendant's pub-
lication was an answer, to be read to the jury, in mitigation of
damages. And with the same object, in the case of WUliams,
alias A. Perking v. IbvZder, tried before Lord Kenyon in 1797,
his lordship permitted the counsel for defendant to read passages
from various scurrilous publications previously made by the
plaintiff against reputable characters of the kingdom.
Without sanctioning the doctrine to the extent that it was
carried in those two opinions, and especially the latter, we can
not doubt that it was proper to allow passages to be read from
the same pamphlet, explanatory of the subject, motive, and in-
ducement to the publication. The defendant should be tried by
what he has published and the whole of what he has published
in the same pamphlet, on the same subject, and not by such
passages as the plaintiff may select and dislocate from their con-
text, and make the basis of his action. As the party whose con-
fessions are relied on and proven, has a right to the proof
of his whole confession, or in slander, after the plaintiff has
proved a part of the words spoken by the defendant, the latter
60S MoBEHEAB V. JoNES. [Eentacky^
may extract from the mtnesB all that was said at the same time
on the same subject. So it would seem that he who is sued for
a libel should not be confined to and rendered responsible for
those passages only which the plaintiff may select, but should
be indulged in reading to the jury the whole he has written and
published at the same time, and on the same subject, especially
when the whole may be necessary to a full understanding of tha
subject, degree of malice, origin, design, and motive of the pub-
lication. Though malice is implied from language, verbal or
written, which imports a charge of a criminal nature, yet theie
are degrees of malice which may lessen or enhance the guilt and
and should lessen or enhance the damages; and to enable the
jury to determine the degree of malice, all that was published on
the same subject at the time should be heard. The law regards
the passions of men; and though they will not be allowed to ex-
ercise or justify a slander or libel, they may palliate the guilt,
and should be permitted to mitigate the damages. The parts
read were, therefore, properly permitted to go before the jury,
unless, as is contended by the plaintiff's counsel, it should be
deemed improper to allow a defendant, who has pleaded justifi-
cation, to introduce as eyidence any palliatory circumstances
other than the bad character of the plaintiff, in mitigation of
damages.
We can perceive no good reason for the distinction taken by
the plaintiffs counsel. The defendant is allowed, by our stat-
ute, to plead as many pleas as he may deem necessaxy for his
defense. If he pleads justification, he does so in the exercise of
a right which the law guarantees to him, and though he should
fail to sustain the issue, on this plea, he is no more censurable
than if he should plead not guilty, or any other plea, the issue
on which should be found against him. In either case, he may
be innocentiy mistaken in the proof; or it may turn out diffsr-
entiy or fall short of that which he had a right to expect, from
the ignorance, misrecollection, or corruption of witnesses.
Failing in this issue on the plea of justification, as well as a
failure to support the issue on any other plea, leaves open the
question of damages, and should no more, in the one case than
in the other, preclude an inquiry into those palliatory circum-
stances, which bear upon the question of damages. Indeed the
question of damages is a distinct question from the question
which arises on the issues submitted to the jury, and though
they are submitted to the same jury, the former can never arise
but upon a determination of the latter question in &vor of the
Dec 1841.] MoREHEAD V. Jones. 603
plaintiff. If each were submitted to a different jury, it would
more readily appear that the character of the issue submitted to
and determined by one jury, should have no effect upon the
question submitted to the other. Though they are both tried
by the same jury, they are distinct questions, and the one should
not be permitted to have any effect upon the other. The de-
fendant may introduce evidence tending to prove his justifica-
tion, but not knowing how the jury may find, may introduce
palliatoiy circumstances which bear upon the question of dam-
ages, which the jury are required to assess in the event of their
finding the issue against him. And this may be the case on the
trial of any other issue. It is the province of the court to in-
struct the jury how to apply the evidence, and under the in-
struction of the court there is no danger of their misapplying it;
and if there were, it forms no good reason for excluding that
which bears upon the damages, as that question, as well as the
issue, is to be decided l^ the jury, any evidence which may en-
lighten their judgment on either question, ought to be heard.
We are aware that it had been dedded in Massachusetts, in
the case of Jlderman v. IV-ench, 1 Pick. 18 111 Am. Dec. 114],
and the same principle sanctioned in the case of Bodwdl v.
Swan, 3 Id. 877, that when a defendant has staked his defense
on a plea of justification, that he will not be permitted to prove
palliatory circumstances in mitigation of damages; but we think
the doctrine sanctioned in those decisions is neither sustained
by principle nor authority. Nor has there been a uniformify in
the decisions upon this question in that state; for in the case of
Lamed v. BuffinUm, 3 Mass. 553 [3 Am. Dec. 185], Parsons,
0. J., says, ''that when, through the fault of the plaintiff, the
defendant, as well at the time of speaking the words as when he
pleaded his justification, had good cause to believe they were
true, it appears reasonable that the jury should take into con-
sideration this misconduct of the plaintiff to mitigate damages."
Upon the whole, we think that the passages of the pamphlet
read by the defendant's counsel, were properly admitted, and
the judgment is affirmed with costs.
MmoATioN or Dahaoxs ik Libel: See Commonwealth v. Morrtty 6 Am.
Deo. 515; Maynard v. BeardsUy, 22 Id. 595. Aa to the admiasibility o! evi-
denoe in mitigation of damages where justification is pleaded, the principal
ease is cited in 15 III. 426.
EyiDXHGB nr Mitigation of Daicaoes fob Slakdeb: See Sanden ▼.
Johnson, emte, 564, and cases cited in the note thereto.
CASES
m THS
SUPREME COURT
07
LOUISIANA
Gaienkib u Aktn's Exeoutob.
[17 LounZAHA, 42.]
SsBTXOB OF A Cttation ufon Onx Pabtnee, during the ezistenoeof the part*
nenhip, is a service npon all.
Sbbyiok of Citation aftkr Dissolutiok of a partnership, does not bind the
partners who are not served personally, nor will the fact that the partner
served had been given a general power to settle the partnership aoooonts,
render the service npon him valid as to the others*
JUDOMXNT AGAINST A PaBTNXB WHO WAS NOT PBBaONALLT SSRVKD with
process in an action bronght after diasolntion of the partnership, is void.
Appeal. The opinion states the &ot8.
G. Janifiy for the appellant.
Canon, contra.
By Court, Mobpht, J. This action is brought to annul a
judgment obtained by one Oliver AMn against plaintiff, as a
member of the firm of Ghaiennie & Deneufbourg, on the
ground that no citation had been served on him, the plaintiff;
that the partnership of which he had been a member had been
dissolved by mutual consent several months before the institu-
tion of the suit; that public notice of such dissolution had been
given in the public papers, and that the plaintiff in that suit had
had direct notice thereof by the separate answer which Deneuf-
bourg had filed long previous to the rendition of the judgment
sought to be avoided. Plaintiff sued out an injunction to arrest
the execution of ekfierifacias against him under such judgment.
On the very day the present suit was brought, Deneufbourg
Jan. 1841.] Gaiennie u Akin's Executor. 605
baTing satisfied the judge below that he had paid up the amount
of said judgment, and was hj such payment, subrogated to the
rights of AMn, under it, he was allowed to take out against the
plaintiff a capias ad satisfaciendum for one half of the judgment
and costs; but this writ was also enjoined on the grounds already
stated. The defense set up was iiiat the citation served upon
Deneufbourg, one of the partners of the old firm, was good or
binding on plaintiff, because at the dissolution of the partner-
ship, Deneufbourg had been charged with the liquidation of the
accounts. The court below dissolved the injunctions previously
granted and decreed damages against the plaintiff and his surely
on the injunction bond.
We think the court erred; it is true that during the existence
of a commercial partnership, service of citation on one of the
members is good against all of them, but after its dissolution,
every member intended to be made a party to a suit must be
served with a separate citation. The general power given to
one partner to settle and liquidate the accounts of the partner-
ship does not appear to us to confer on him greater rights than
each member of the firm after its dissolution could have possessed
for the purpose of liquidation, had no liquidator been appointed.
It relates to the payment of acknowledged debts and the collec-
tion of all sums due to the firm, but does not enable the liqui-
dator to stand in judgment for the other partners, unless a
special power to that effect be granted. Our code requires ex-
press and special power to be given whenever the things to be
done are not merely acts of administration: La. Code, act 2966;
8 La. 568;^ 13 Id. 484.' But even could the general power to
settle all accounts be considered as sufficient to enable Deneuf-
bourg to defend a suit brought against his former partner, the
record shows that he was not sued as liquidator of the partner-
ship; and that he did not appear in the suit in that capacity, he
appeared and filed for himself a separate answer tending to
throw the burden of the whole debt on his late partner, Gaien-
nie, on the ground that the draft sued on had never been ac-
cepted for the good of the firm; but had been accepted by
Qaiennie for his own private use and benefit without his (Deneuf-
bourg's) knowledge and in fraud of his rights. After such an
answer, Ghaiennie could not be considered as represented in the
suit or as legally cited. No judgment by default could be taken
against him, without a separate citation being first served upon
Hitn according to law; this not having been done, all the pro*
1. P«Un T. Oardcf, 3. CuOtr ▼. Ooekram,
608 Lanbbt u BAuaNOK. [Louisiaiiak
ceedings in the suit were as to him absolutely null and void:
Code of Pr., arts. 206, 606.
It is therefore ordered and adjndged, that the judgment of
the district court be reversed; that the injunction sued out bj
plaintiff be made perpetual, and that the appellee pay costs in
both courts.
Unauthobisbd JuDCioiTT AOAIK8T A FiBM will be binding upon the perfe-
ner who aoeenti to it, though inoperative agaimt the other: 8t* Mkn t.
Holmu, 82 Am. Dec 603, the note to which diBcniweii this subject
PowxB or CoPABTVXB AiTXB DuBOLUTXON to bind the othora l^ his aotiL
The difEbrant oases in this series upon this subject will be foand ia the sols Is
CMr ▼• Shqtkerd, 22 Am. Dec 886.
LAin>BY V. BAUaNON.
[17 LocnsiijiA, 82.]
Ko Amssdmimt op PLBAnnras is Allowed after the renditkB of Judg-
ment.
NlWLT DiaOOVBUED E¥n>SNOB GONBTITUTBS NO QbOUHB WOR A NbW
Trial unless it would be admissible under the pleadings as thej existed
prior to the rendition of the judgment, without further amendment
Nbw Trial will not bb Granted ajtkb a Jodombnt by de&iilt in an
action to recover the amount of a debt, although it is shown* that proof
of payment could be made by newly dlMovered evidence, if it appears
that the evidence would not be admissible without an answer were first
filed in the action.
BvxDBNOB or Patmbnt of a debt is not admissible unless payment ia spe-
dally pleaded.
Appeal. Action to recover three hundred dollars and in-
terest, the balance of the price of a tract of land sold by plaint-
iff to defendant. Suit was commenced on September 14, 1840.
On the fifth of October following a judgment by default was
entered. On the eigthth of October defendant appeared and
moved for a new trial, upon the ground that evidence had been
discovered since the judgment was rendered, by which it could
be shown that the debt sued for had been paid. Motion over-
ruled. Defendant appealed.
Labawve, for the plaintiff.
Burke, contra.
By Court, Sdcon, J. Defendant is appellant from a judgment
by default Tendered and made final against him. Before taking
his appeal, he made a motion for a new trial, which was over-
ruled by the lower court; and as the record comes up without any
Jan. 1841.] LiLNDRT v. Bauonon. 607
fitatoment of facts, and mihout the proper certifioate of the
elerk that it contains all the eyidence adduced in the case, the
only question submitted to our consideration is, whether the
judge erred in overmling the motion for a new trial.
The affidavit of the defendant, in support of his motion, is in
these words: ''That it is true, as alleged in the above statement of
^^unds for a new trial, that the plaintiffs demand had been, long
anterior to the institution of this suit, paid; written evidence of
iPFhich payment the deponent has lost or mislaid, but that he has
discovered, since the trial of the cause, B. B., a witness, who
"will prove the existence, execution, and contents of said lost or
mislaid written evidence of payment, testimony which he could
not, with due diligence, have obtained before." Now, in sup-
posing this affidavit to be sufficient, the facts said to have been
discovered since the trial of the cause, would be applicable only
to a defense which was not set up, and it is perfectly clear that
whenever a new trial is applied for on account of new evidence
discovered since the cause was tried, the party must show not
only that he has used every effort and diligence in his power to
procure it, but also that it is admissible and material under the
pleadings: 7 La. 82;' 10 Id. 155.* In this case, however, no
issue was joined by the defendant, as the judgment is one by de-
fault; but we think that this can not better his situation, as by
an order to authorize the introduction of the newly discovered
evidence, for the purpose of proving the extinguishment of the
debt by payment, such payment must be specially pleaded: 6
Id. 467 f and as he would not be allowed to introduce any si^ch
evidence without amending the pleadings and filing an answer,
which can not be permitted after judgment: 3 Id. 487.* If the
defendant's allegation, that he has paid the debt, be a serious
defense, why did he not plead it? Why did he suffer a judg-
ment l^ default to be rendered against him? He must have
known that a judgment by default is a tacit admission of the
justice of the demand: Code of Pr., art. 360. His affidavit does
not even show any reason why he did not or could not defend
the suit in due time; and if he be made to suffer from his neg-
lect, we can not, as the case stands, afford him any relief. We
are of opinion that the district judge did not err in overruling
the motion for a new trial.
It is therefore ordered, adjudged, and decreed, that the judg-
ment of the district court be affirmed, with costs.
1. Ingram t. Crqft, 8. OUitet t. FamrU,
%. Com ▼. B^tktmi/. 4. Janet ▼. Blekard,
008 Gbavieb's Cubatob u Cabbabt's Ex'b. [LooisiaDa,
Amxhdmsnt of Pleadings attxe ob DVBiNa Tbial, when Aixowxdi
The note to Stevenson v. Mudgetl, 34 Am. Dec. 158, oontaina a foil discnflaioai
of this sabject in which the aathoritiea are cited and reviewed.
Nbwlt Disoovered Eyidbncb is not a Gbound for a new teial, if merelj'
cnmolative and not condnaiTe in ita character: SmUh v. ShuUZf 32 Am. I>ea
33, the note to which oontainfl the oases heretofore reported in this seriev
upon this snbjeot.
GbAVIEb's GuAATOB v. GABBAByS ExEGUTOB.
[17 LounsAirA, 118.]
Action to Entobob an Unlawful Ck>NTBAcr can not be maintained.
GoNTRAor, THE CoNSiDEBATiON OF WHICH RELATES to the perpetration oA
a fraud or contemplates the performance of an act prohibited by law, in
nnlawf ul and' can not be enforced.
Simulated Contract bt which a Transfeb of Pbopbbtt is made to as.
apparent yendee, is not necessarily fraudulent so as to deprive theTendn'
of his right to compel the apparent vendee to comply with the oonditionf
of the transfer, unless the object of the transfer was itself unlawful, ot
was intended to injure or defraud third persons.
CkurTBAOT BT WHICH AN Afpabent Vekbeb Aobsed TO Sbll the property
as his own, and, after deducting the amount of certain loans and advances
made to the vendor to repay to the vendor the excess of the proceeds
of the sale, the principal object being to defeat the claims of certain judg-
ment creditors of the transferror, is fraudulent, and no action will lie by
the transferror or his representatiyes to reoover the surplus agreed to bs
repaid.
AfPBAL from a judgment in favor of plaintiff. The opinion
states the facts.
JShisHs and SouU, for the appellant.
L. Janin, contra.
Bj Court, BuixABD, J. The plaintiff, curator of the estate of
Jean Qravier, represents in his petition that his intestate always
conducted his business in a veiy careless manner, n^lected
his numerous engagements, and from the year 1803 to the time
of his death suffered many judgments to be rendered against
him, and much of his property to be seized and sold under exe-
cution. That being constantly in dread of executions and
pressed for money, he early commenced a practice of conceal-
ing his property from his creditors by passing simulated sales
of it, and making conveyances of his property to various persons
who advanced him money on usurious interest, and who were to
hold the property in trust for him and to secure their advances.
It is alleged that the persons with whom these simulated con*
Jan. 1841.] Obayieb's CuRATOB.t;. Cabraby's Ex's. 609
tracts were principally entered into were the late Nicolas Bochey
and Etienne, Pierre, and Antoine Carraby. The petition enn-
merates seyeral pieces of property which it is alleged were con-
Teyed to the Carrabys by such simulated contracts without
consideration, but intended to secure the said Carraby's occa-
sional adTances of money and to prevent the seizure of said
property. The said Gh»7ier always remaining the real owner of
said property. It is further alleged that the affiurs of Gxavier
in that manner became utterly deranged, and that in 1821
judgments were rendered against him for large amounts, and that
the property remaining in his name was seized and sold, but
that the Carrabys protected the jyroperty thus nominally con-
veyed to them from seizure. That after that period Jean
Gteavier abandoned his affiurs as hopeless, and did not venture
fco let it be known that he was the owner of said property, but on
the contrary, concealed his other property and denied his title to
it, lest it ^ould be immediately seized by his judgment creditors.
The plaintiff proceeds to allege that the property thus conveyed
was sold by the Carrabys, and the object of the present suit is
to compel their legal representatives to account to the estate of
Oravier for the value of the property thus alienated by them to
the prejudice of Gxavier. The judgment of the court of pro-
bates having sanctioned to a certoin extent these pretensions of
the plaintiff, the defendant prosecutes the present appeal. His
counsel has interposed in this court a peremptory exception
founded upon the alleged illegal and immoral character of the
agreements between the original parties, and invokes the max-
ims of law, " aUegans tufjntudinem miam nan est audiendus;**
and " ex turpi causa non oritur actio."
The counsel for the appellee contends in reference to this ex-
ception, that it ought not to prevail, because the plaintiff being
curator of the estate of Gravier represents the creditors rather
than the heirs, and that although since the institution of this
suit it has turned out that the estate is solvent, and that the
amount reserved may benefit the heirs, yet the principle relied
on is inapplicable to the present case.
The first part of this argument assumes as a principle that
contracts admitted to be reprobated by law, contrary to good
morals and public order, may be enforced for the benefit of cred-
itors, although not for the direct personal advantage of one of
the parties. But the code declares that an obligation without a
cause, or with a false or an unlawful one, can have no effect. The
law gives no action to enforce them whoever may demand it, un*
Am. Dm. Vol. XXXVI-W
610 Oravieb's Curator v. Carrabt's Ex'b. [Laaisiaim*
less it be in cases of innooent holders of the evidence of such
contracts in a commercial form. It is enough in the present
case, in our opinion, that the legal representatiye of Gxavier is
plaintiff to let in the inquiry as to the turpitude of the transac-
tions out of which this suit has grown.
Bj the Boman law the right to recover back what had been
paid on an illicit contract depended upon the question which of
the parties was dishonest or whether both were chargeable with
the same tuipitude. If the party who had received were alone
dishonest, the sum paid could be recovered back even although
the purpose for which it was given had been aooomplished.
"Quod 81 turpis causa accipierUis fueritj etiam si res secula sit,
repeti potest." As in the case supposed by Julien of money paid
to prevent the commission of sacrilege, robbery, or murder.
But where both parties are chargeable with the same turpitude
the law gives no action. " Uhi autem et dantis et accipientis tur-
pUudo versatur iion posse repeti dicimus" And the case sup-
]>osed by Paul is that of a bribe given to the adversary's attorney,
which could not be recovered back. "Nam turpiler aooepta
pecunia justius penes earn est qui deceptus sit, quam qui decepU.'*
In such cases the maxim is, "In pari causa turpiiudvnis potior
est causa possidentis :" 5 Pothier's Pandectes, b. 12, tit. 5. These
principles apply in cases where the corrupt or reprobated con-
tract has had its effect, and the object of Ihe action is to repair
the injury complained of by one of the parties. It is hardly
necessary to add that a fortiori the law will not lend its aid to
enforce the performance of such contracts in the first instance.
The principle has been held to apply not only in relation to
the original corrupt or reprobated contract, but to any new en-
gagements growing immediately out of it. The chief justice in
delivering the opinion of the court of the United States in the
case of Armstrongs, Toler, says: " No principle is better settled,
than that no action can be maintained on a contract the consid-
eration of which is either wicked in itself, or prohibited by law.
How far this principle is to affect subsequent or collateral ex-
tracts, the direct and immediate consideration of which is not
immoral or illegal, is a question of considerable intricacy, on
which many controversies have arisen and many decisions have
been mado " After reviewing several of those cases the chief
justice says: '' One of the strongest cases in the books is Steers
V. Laushleyy 6 T. B. 61, where the broker had been concerned
in stock-jobbing transactions and had paid the losses^ drew
a bill of exchange for the amount on the defendant and after
Jan. 1841.] Ouavier's Cubatob v. Carraby's Ex'b. 611
its acceptance indorsed it to a person who knew of the illegal
transaction on which it was drawn, the coort held that such in-
dorsee could not recover on the bill." 11 Wheat. 258-274. This
court has in more than one case recognized these principles,
and especially in the case of MuIhoUan v. Voorhiea, 3 Mart. (N. S. )
48.
But the counsel for the appellant relies upon the case of
Oreffin v. Lopez, 5 La. 146/ as sanctioning a different doctrine^
and upon 2 Chardon, Traite du Dol et de la Fraude. In that
case the original intent of the parties does not appear to have
been dishonest or immoral. One of the parties it was alleged
entered into a simulated contract with the other in order to pro-
tect a part of his property from unjust lawsuits and prosecu-
tions bj certain enemies. It appears that there was also a
counter letter executed. The object of the suit was to prevent
the apparant vendee from disposing of the property as his own,
after having obtained surreptitiously possession of the counter
letter which alone showed the true contract or rather the ab-
sence of any contract between the parties. A simulation is not
necessarily a fraud. It is only when injury to third persons is
intended that it becomes fraudulent; and the decision in the
Case of Oreffin v. Lopez does not appear to militate against the
principles above expressed; for, if the simulation was at first
innocent and not intended to injure third persons, the subse-
quent suppression of the counter letter and conversion of the
property to the sole use of the apparent vendee was in itself a
fraud against which the apparent vendor was probably entitled
to the protection of the law. We are not prepared to say that
the principle recognized in that case is applicable to the present.
But we are referred to a French author who has treated ex pro-
/esso the subject of fraud and simulation, and the plaintiff's
counsel places great reliance upon him in support of his cause.
The theory of this author is, that even in relation to the parties
themselves simulation is a ground of radical nullity, and that
each one may attack it against the other who seeks to con-
simxmate the intended fraud or by a new fraud profit by the first.
He lays down an axiom well worthy of attentive consideration
as the source in our opinion of the errors of his system, to wit:
" that whatever may be the object or purpose of a fraudulent
simulation it has that reprobated character only because it in-
fringes a prohibitory disposition of the law. Now in this case
it can have no effect." He then quotes the two articles of the
1. 6 Hart 145.
612 Gravieb's Curator u Carraby's Ex'r. [Louisiana^
code Napoleon, 1131 and 1133, corresponding io those of the
code of Louisiana, which declare that an obligation without
cause or consideration or with a false or unlawful one can have
no effect; and that the cause is unlawful when it is prohibited
bj law, when it is contrary to good morals and public order, he
proceeds to say: " We have nowhere either in Uie code or else-
where any statute more absolute or less susceptible of excep-
tion; it is one of the fundamental principles of the theory of
contracts, and it is established for the sole interest of the con-
tracting parties, since in relation to third persons their condi-
tion is secured by article 1165; contracts haye their effects
only between the contracting parties and do not affect third
persons/'
Again the author says, '* the contrazy qrstem is founded upon
the axiom propriam iwrpiiudinem aOegans turn est audiendu^' — it
will be instantly perceived that this axiom can be properly in-
Toked only by third persons, when the author of the &aud
seeks to use it as an arm against them. Another axiom not
less moral may be opposed to it, " nemim sua fraus patrocinari
debet. ** But it is not by axioms so general and which are not re-
enacted by any text of our code, that exceptions can be created
to a rule so imperatLVe as that set forth in the articles which we
have first cited. This position, that the maxim which denies an
action in reference to immoral or prohibited contracts has rela-
tion only to third persons, can not reoeiYe the sanction of this
court. The whole of the fifth title of the second book of the
digest treats the matter as it relates to the parties towards each
other, either as the right to enforce dishonest and immoral con-
tracts or to recover back what has been already paid in execution
of them. Nor can we concur with thatauthor in the opinion, that
this stem morality of the Boman law has not been retained in our
modem legislation. On the contrary we think that when the code
declares that contracts prohibited by law or contrazy to good
morals or public order shall have no effect, it recognises the same
general principle, and although the fundamental precepts of the
ancients **hone8te vivere, aUerwm rum Icedere^ euum cuiqtie tri-
buere" constituting the religion of the law, have not been ex-
pressly venerated as formal texts, yet they lie at the foundation
of our jurisprudence, and that courts of justice are not reduced
to the humiliation of adjusting among dishonest men the results
of their unholy speculaidons or of protecting one party against
another while engaged in a common purpose, at war with the |
best interests of society and subversive of public order. i
March, 1841.] DuKE OF Richmond v, Milne's Ex'rs. G1:)
It remains to inquire whether these principles are applicable
to the case now before the court, and what was the true charac-
ter of the dealing and contracts between the original parties. It
is not denied that the pretended sale of lots and other prop-
/erty by Gravier to the Carrabjs was for the double purpose of
protecting the property against the pursuits of his creditors and
of securing the reimbursement of certain loans of money and
other advances with usurious interest; and that to a certain ex-
tent it was successful. That such contract was fraudulent and
might have been successfully attacked as such by the creditors
at the time, if they had had the proofs now before us, we can
not doubt. The Carrabys were made to api>ear to the world as
absolute owners, and thus the judgment creditors of Gravier
were frostrated in their pursuits. The ultimate agreement was
that the property should be sold by the Carrabys as theirs, and
the price accounted for to Gravier over and above the amount of
their advances, in preference to the judgment creditors. Would
a court of justice have lent its aid to enforce such a contract? to
carry out the fraudulent intentions of the parties ? Could Gravier
at that time have recovered damages from the Carrabys for the
non-performance of such a contract? We think he could not.
**In pari causa turpUudinis potior est conditio poasiderUis," This
action is brought by his legal representative to recover from the
estates of the Carrabys the value of the property thus alienated
together with damages. We conclude that the exception ought
to be sustained.
It is therefore ordered, adjudged, and decreed, that the judg-
ment of the court of probates be avoided and reversed, and that
OUTS be for the defendant with cost in both courts.
CoMTBAcn IN ViOLATiOH OF Law OF agalnst public policy can not be en-
forced: Spwrgeon v. MeEhoain^ 27 Am. Dec. 266, in the note to which the
eaeee oontuned in this aeries, upon this sabject, aie referred td A diBone-
eion of the subject of the rights of parties to illegal or fraudulent tnosaotiona,
wiU be found in the note to Bcyd v. Bardofif, 34 Id. 765
DUEE OF BlOHMOND V. MiLNE'b ExBOI}TOB&
[17 LouniAXA, na.]
BoBonoH OF Baront is a Cobpobation, under the laws of SooUand,
constituted by sovereign authority, composed of the inhabitants of a
psirticular district, organized under royal charter, making a grant of the
Isiids included therein to a subject, and annexing to it the right to exer-
cise within the territory a particular authority or jurisdiotioD.
614 Duke of Richmond v. Milne's Ex'bs. [Louisiana,
8ITCH COKPORATION MAT RbOHVX G1IT8 QflXR YlYOB OK 0aDB4 MoBTZB,
throagh the intervention of trustees.
DovAnoNB nrrsB Vivos and Causa Mortis may, under the Uws of Ixmi-
siAiia, be made in favor of an alien when the laws of the ooontry of which
he is a citizen do not prohibit similar dispositions from b^ing made there
in favor of citisens of Louisiana.
Pabtxcular Lbgacy Consistino ov a Dbiznitb Sum of money is entitled
to be satisfied in preference to all others.
Pabticular Lboact is a Charox upon Tax Bhtibb ISbkatb, and if tbs
heir be admitted before it is discharged, becomes a personal debt» whi/h
he is required to extinguish out of the real as well as the personal estate,
acd interest thereon may be collected from the day of demand.
AziKNS ARE HOT BxoLUDBD VROM lyHXRiTiNO property of any descrqitio»
by the laws of Louisiana.
LroAFAOiTr ov Alixnb undxr thx Laws ov EiroLAin> and Sooxland ex-
tends to the acquisition of lands or heritsble property by poiohass or
succession, but an alien may, in those countries, acquire pttipet'ly in, or
make a will of, personal estate, and sue for personal debts.
pABnouLAR Legaot, Conobtinq ov a Sum ov Monst, would, by the
laws of Scotlsnd, be considered as a simple bequest of the wanmj^ and
not of any heritable property, which, if a dtisen of Tirwiisiana were the
legatee, he would not be incapacitated from receiving, and suoh dtisen
could recover the amount of the legacy in the courts of Sootiand, not*
withstanding a deficiency in the personal estate to pay personal debts or
other preferable bequests of the testator.
LwiAOT Bxquxathxd bt a CmzBN ov LouiaiAHA to establish a free school
in his native town in Scotland, will be paid to the persons authorised to
receive it, and the entire estate of the testator will* if neusssaiy, be
charged with its payment.
LwAOT ov MoNXT Sboubrd UPON Bbal JSguxE is not a hsrMablo bcmd
within the meaning of that term, as understood nndar the l«ws of Soot-
land.
AsFiAL. The opinion statee the facts.
BuMb and SlideU, for the plaintiff.
Oanarif for the executors.
L. O. Duncan^ for the orphan aqrhim*
Hoffman^ for the absent heirs.
Bj Court, Simon, J. This case arises out of the last irill and
testament of Alexander Milne, deceased, which contains the
following disposition: ** Unto the town of Fochabers (place of
his nativily) I give and bequeath the sum of one hundred thou-
sand dollars, to be employed in establishing a free school^ with
sufficient competent teachers, and supporting the said school, in
the said town of Fochabers, for the use of the parishes of Bellie
and Ordifish." The legacy is now claimed }aj Charles Gordon,
duke of Bichmond and Lenox, superior as feudal lord of the
March, 1841.] Duke of Richmond v. Miln^s Ex'rs. 615
bnrgh of barony and town of Fochabers; and by Alexander
Marquis, baron bailie and sole magistrate for the administration
of justice in said burgh of barony. They further allege that by
virtue of the powers specially conferred upon Charles Gordon
by a meeting of the inhabitants of the town of Fochabers duly
conTened, and at a meeting of the kirk session of the parish of
Bellie, also duly convened, they are authorized to demand and
receive the said legacy, for the purpose of applying the same in
conformity with the said testamentary disposition; and that ac-
cordingly, they have appointed two agents and attorneys in fact,
to represent them in the premises, and to receive on their ac-
count the amount of the legacy. They pray to be recognized as
the persons authorized to claim said legacy, and that the amount
thereof be paid over to their said agents, etc.
The defendants, to wit, the three executors of the last will of
the deceased, the attorney appointed by the court to represent
the absent heirs, the society for the relief of destitute orphan
boys in the city of Lafayette, and the Poydras female asylum,
joined issue by denying the capacity of the petitioners to take
under the will; and by submitting to the court whether under
the laws of Louisiana, the x>etitioners, being aliens, can be en-
titled to recover the legacy hy them claimed for the purposes
mentioned in the will. The court of probates rejected the
plainti&' demand, gave judgment in favor of the defendants,
and said plaintiffs appealed. Our attention has been called to
two principal questions arising out of the denial of the plaintiflh*
capacity to take under the will; and it is contended by the ap-
pellees: 1. That the town of Fochabers is not incorporated; and
that therefore there is no person or corporation capable of re-
ceiving the legacy; 2. That under the laws of Louisiana, the
plaintiflFfl, as foreigners, can not take under the will, because the
laws of Scotland prohibit similar dispositions from being made
in favor of a citizen of Louisiana.
1. Fochabers is a burgh of barony under the ducal family of
Oordon, and governed by a bailie of his grace's appointment:
Ohambers' Cktzetteer of Scotland, 437. It was incorporated as
a btu^h of barony by a royal charter of James YI., king of
Scots, of the tenth of February, 1598, and forms one of a very
large class which in Scotland are well known by the designation
of burghs of barony. By the laws of Scotland, a burgh of barony
is a corporate body, erected by the sovereign, and made up of
the inhabitants of a determinate tract of ground, with jurisdic-
tion annexed to it; they were erected by the sovereign either to
616 DuKB.OF Richmond v. Milne's Ex'sa [Louisiana.
be liolden of himself or in fayor of subjects who enjoyed the
properly or superiorily of the lands contained in the charter;
from this difference, arises the division of burghs royal, and
burghs of regality or barony: Erskine's Inst, of the Law of
Scotland, b. 1, tit. 4, sees. 20, 30. The general law of incor-
poration applies to the buighs of barony, and they have power
to administer their common good, to elect officers, to make by-
laws, etc. : Bell's Principles of the Law of Scotland, No. 2191.
Under this system of laws, the incidents to a corporation are
these: 1. As a legal person the corporation has persona standi
injudicio; it may sue or be sued, grant and receive, by its cor-
porate name, etc. 4. It may purchase or hold lands, and be
enfeoffed by its coii>orate name and title; and 5. li has per-
petual succession, etc.: Id. No. 2169. The power or authority
of the duke of Richmond in regard to the burgh of Fochabers,
is acquired by inheritance, was originally derived from the
crown, and is constituted by the royal charter of 1598; it has a
form of government and a local magistracy, and the baron bailie
is the chief and sole magistrate of the burgh, which office is
now filled by Alexander Marquis, one of the plaintiffis. The
evidence of distinguished jurists on the laws of Scotland, has
been taken on this particular subject, from which it clearly ap-
pears that burghs of barony are proper coii>orations; and as
such they are known and recognized in the Scotch law; those cor-
porations are accounted persons, because they have their own
proper stock, rights, and privileges as persons have, and as such
are capable of receiving and holding property either absolutely
or in* trust by their representatives. Under the law of Scot-
land, if a bequest similar to the one in question had been made
there by a will good in point of form, it could be claimed on
behalf of the town or burgh of barony of Fochabers for the use
of and in trust for the said town, and parish of Bellie, including
the lands of Qrdifish; and the same could be competently
claimed by the baron and the baron bailie to be held on behalf
of the inhabitants of the parish, including those of the town
itself and the lands of Ordifish. In such case, the baron and
baron bailie are empowered to act as trustees for the corpora-
tion, as they are authorized to represent them in all circum-
stances where it may be necessary to claim or enforce their
rights or privileges as a corporate body. We must therefore
conclude that the inhabitants of the town of Fochabers have a
right to enjoy the privileges allowed them as a corporation, that
as such they have capacity to receive by donations inter vivos or
Ifarch, 1841.] DiTKB of Richmond v. Milne's Ex'bs. 617
^nords causa, and that they are legally and properly represented
in this suit by their trostees.
2. Aooording to the one thoosand four hundred and seveniy-
^erenth article of the Louisiana oode, ** Donations inier vivo9
jmd mortia causa may be made in favor of a stranger, when the
laws of his conntry do not prohibit similar dispositions from
being made in favor of a citizen of this state." This estabUsbes
A reciprocal right in favor of the citizens of the two countries,
4md it behooves us, therefore, to inqnize, first, into the natoze
•of the legacy under our laws; and secondly, to examine whether,
under the laws of Scotland, a similar bequest may be made in
iavor of a citizen of Louisiana.
1. The legaqr made by Alexander Milne to the town of Focha-
1)ers, is one of a sum of money; and being a particular legacy,
it ought to be discharged in preference to all others: La. Oode,
4urt. 1627. Being also a movable legacy, it is to be paid out of the
funds of the succession; but in default of such funds sufficient
to discharge it, it is to be paid, as long as the estate is adminis-
tered by the testamentary executors, indifferently out of the per-
49onal and real estate of the testator. It becomes a chargeonthe
whole estate, and when the heir claims to be put in possession
of the succession, and to take the seisin from the testamentary
•executor, he is bound to provide for the payment of the movable
or pecuniary legacies, by offering to put in the hands of the ex-
ecutor a sum sufficient to satisfy them: La. Code, arts. 1661-1664;
thus, such a legacy becomes a personal debt of the heir, which
be must discharge as any other debt due by the succession,
without any distinction being made whether it is to be satisfied
■out of his personal or real property; and interest is due thereon
from the day of the demand: Id. 1619. The legacy under con-
sideration is therefore a simple pecuniary bequest, which must
1>e acquitted by the executors or by the heirs in the same man-
ner as if it were a debt of the estate.
Before proceeding to examine the second question, it may be
proper to remark, that the provision contained in the article 1477,
-of our code, is limited exclusively to the incapacity of receiving
•donations inter vivas and mortis causa, and that nothing in our
laws shows that foreigners are excluded from the acquisition of
real or personal property, by will or succession, and that they
sxe not capable of inheriting either: La. Code, arts. 881, 882.
The capacity of aliens to transmit their estates ab iniestatOy and
io inherit from others in Louisiana, is on the contrary clearly
shown by the article 945, which declares that slaves alone are in-
618 DuEE OF Richmond v. Milnis's Ex'sa [Louisiaiia^
capable of either; and as under the article 946» the incapacity of
heirs is not presumed, he who alleges it must proye it. Ther&
Is therefore nothing in the laws of this state that exdudee aliens
from the inheritance of any kind of property.
2. The incapacity of aliens by the English and dcotch laws is
only extended to their holding lands or acquiring heritage, either
by purchase or succession: Erskine's Inst., b. 3, tit. 10, sec. 10;
Bell, Nos. 1644, 2135; 1 Bl. Com. 272, aaeq.; 2 Eenf s Com. 61.
Under the laws of Scotland, an alien may acquire property in
goods, money, and moTable estate, and make a will and sue for
personal debts: Bell« No. 2185; and imder those of England, he
may even be a mortgagee and recover his debt in countriea
where there is a positive prohibition to hold lands: Powell on
Mortgages, 106. The opinion of the lord advocate of Scot-
land and of the other jurists who.have been examined on this*
subject, demonstrates clearly that if the legacy had occurred in a
Scotch instrument, it would, by the laws of Scotland, have been
considered as a pure bequest of a sum of money, and not of
heritable property; and that if a person Iq Scotland had be-
queathed a legacy in similar terms to one of our citizens, the
courts of law Iq that country would without hesitation give effect
to the legacy. The reason is drawn from the very ei^ressiona
of the Scotch laws, and is very obvious: a legacy, in general,
according to those laws, is defined to be a donation or bequest
mortis causa of a sum, or subject, or tmiversUas, to be paid or
delivered by the executor out of the free movable estate of the
deceased, to a person named or plainly denominated; and a.
general legacy, or the legatum quantUaHs, is a legacy not of a
special article or debt, but indefinite, of so much money, or
fungibles, or movables of a particular description or class: Bell,
Nos. 1871, 1873. In this case, the bequest of a fixed sum of
money is purely movable in its nature, and is not one depend-
ing on, secured by, or in any manner attached to heritable prop-
erty; it must consequentiy be paid out of the estate, without
any reference to any particular real estate, and under the Scotch
laws would come within the definition of the legtxhim qu4intitatis.
On this subject, the lord advocate informs us further, that al-
though by the law of Scotland, an alien could not hold heri-
table property there, either by purchase or succession, there is*
no doubt that if a Scotchman died, leaving to a citizen of Louisi*
ana, a sum of money payable out of personal estate, or out of
real estate, directed by him to be sold, or payable by the dis*
ponees in the universiias of his estate^ heritable and movable,.
March, 1841.] DuEE of Richmond v. Milne's Ex'na 619
SQch citizen would recover that sum in the courts of Scotland,
notwithstanding a deficiencj in the personal estate to paj the
testator's personal debts or preferable bequests.
These principles of the Scotch law, which are derived from
the Boman or civil law, are veiy similar to ours: La. Code, art.
1661. Thej contemplate the payment of a pecuniary legacy in
the same light as the payment of a debt due by the estate; it
must be discharged; and the nature and the object of the legacy
being alone to be considered, the legatee can not claim but the
money, without his being entitled to exercise any right or con-
trol over the heritable property, out of which the funds are to
be raised to satisfy the bequest; if it be necessary to sell lands
for the purpose of discharging such movable legacies, the price
of such lands so sold by the owner or by the executor becomes
movable, and as such, must be applied to the payment of those
legacies; although it can not be said that such legacies are dehis
secured upon land, and of a heritable character: Bell, Nos. 1478,
1479. We have an instance of a bequest made by an English
subject to the United States, the amount of which, of about one
hundred thousand pounds, was regularly paid over to our gov-
ernment. It is the bequest made by James Smithson, of Lon-
don, to the United States, for founding at Washington an
establishment to be styled the " Smithsonian Institution, for the
increase and diflEusion of knowledge among men." In Decem-
ber, 1835, the president of the United States transmitted to con-
gress a report from the seoretazy of state, together with the
papers and documents relative to said bequest; congress acted
upon the recommendation of the president, and a law was passed
accordingly for the purpose of accepting the bequest and the
trust: See vol. 2, document 25, 1st session 24th Congress; vol.
9, Laws of the United States, p. 489. We see no reason, there-
fore, why the same reciprocity should not be extended under
the laws of Louisiana, to English and Scotch subjects, when it
is clear that according to the laws of their country, our citizens
would be entitled to recover similar legacies.
Much has been said, however, to convince us that the legacy is
heritable in its nature and effect; and it has been urged that all
that proceeds from immovable property is immovable, and that
any sum of money secured upon real property is a heritable bond.
According to the Scotch laws, all subjects (things) which were
immovable by the Boman law, as a field or whatever is either
part of the ground, or united to it, /undo annexum, as minerals,
houses, well^, etc., are heritable; and heritable objects are those
620 Duke of Richmond v. Milne's Ex'bs. [Louisiana,
which on the death of the proprietor, thns descend to the heir:
Erekine, b. 2, tit. 2, sees. 3, 4; Bell, Nos. 1470, 1471, 1472.
Eights connected with or affecting lands, thoagh not feadalized.
are heritable ; as servitudes, reversions, faculties, and rights to
challenge deeds relating to heritage : Id. No. 1485 ; Erskine,
b. 2, tit. 2, sec. 5. Thns naked charters, or the disposition of
the property or superiority of lands, or heritable bonds, though
seisin has not proceeded on them, are heritable, because they
are all rights of or securities upon land, and the proprietor or
creditor may complete them by seisin, when he shall think
proper. On the other hand, whatever has no resemblance to a
feudal right, and produces no annual fruits, is movable ; by this
rule, cash, jewels, etc., are all movable subjects ; all subjects
bearing interest ex lege, are movable in all respects ; simple per-
sonal debts and engagements, whether presently due or payable
at a future term with interest, are movable ; as also the price of
lands sold by the owner : Id. b. 2, tit. 2, sees. 7, 13 ; Bell,
No. 1479. The distinction is very clear and obvious, and it suf-
fices to state that the reason of the Scottish bonds being herita-
ble, originates evidently from the feudal tenure of the lands, and
from the creditors being invested with or having a right to the
seisin of the land, which none but a subject can hold : Id. Nos.
1485, 1478, 1493, and 1644; Erskine, 216, 222, 402. In the
present case, how could the legacy, if made in Scotland, be con-
sidered as a heritable bond ! We have already demonstrated
that the legatee has no right connected with or affecting lands,
and less so is he entitled to be invested with the seisin of any
land ; the bequest does not carry with it any right of infeftment
{enfeoffment), its amount is to be paid in money out of the mov-
able estate of the deceased ; it becomes the debt or personal olv
ligation of the heir ; he must satisfy it as any other debt, not
only out of the funds of the succession, but if necessary, out of
any funds proceeding from the sale of property, either personal
or real, to be sold or disposed of by the executors or by himself
for that purpose.
We think, therefore, that the doctrine of heritable bonds
would not apply to the bequest in question, if made in Scotland ;
and that the judge a quo erred in not giving full effect to the
legacy under consideration. With regard to the interest allowed
by law, from the day of the demand of the legacy, it can not be
included in our judgment, because it has not been claimed.
It is therefore ordered, adjudged, and decreed, that the judg-
ment of the court of probates be annulled, avoided, and re-
Ifardi, 1841.] Hyde v. Plantebs' Bank« 621
Tersed; and proceeding to give sucli judgment as^ in our opinion,
ought to haxe been rendered in the court below, it is ordered,
adjudged, and decreed, that the plaintifb be recognized as the
persons duly authorized and entitled to claim and receive the
legacy of one hundred thousand dollars mentioned in the last
irill and testament of Alexander Milne, deceased, as being made
to the town of Fochabers; and that the amount thereof be paid
over to plaintiflh* agents named in the petition, by the testa-
mentary executors of the said last will and testament, with costs
in both courts.
BiORTS ov Alzbns to AoQuma Lands or penonil property by purohaae or
raooewion. This sabjeot ia oonsidered in the notes to JSHmendatffT. Oar"
wtkhaelf 14 Am. Deo. 97, sod Commomoealth ▼. JTtte, 29 Id. 233. At common
law, an alien had no heritable blood, and ooold not reoeive or transmit lands
by desoent: Jaekttm v. Ms 8immon$, 24 Id. 198, the note to whioh oontains
other eases, oited from this series and elsewhere, in relation to the sabjeot*
Htdb v. Flantebs' Bank.
[17 Looxhama, 660.]
Eavx n NOT LiABLB VOB NxouosNOB ov A NoTA&T emplojed by it to pro-
test a promissory note.
NoffABT IS Pkbsonaixt Lzablb vob Nbolbct to oomply with the law in
recording his protest and notloe, whereby the indorsers of a note dellT*
ered to him for protest were dischai^^ed.
Appbal. The &cts axe stated in the opinion.
J. W. Smith, for the plaintiflB.
T. SlideUy for the defendants.
By Court, Mobvht, J. The petitioners allege that they de-
posited with the defendants at Natchez, in the state of Missis-
sippi, a promissory note for collection; that defendants imder-
took and bound themselves to use all care and diligence in
collecting said note, and in case of non-payment to cause good
and legal notice thereof to be given to the indorser, Bobert J.
Walker. That at the maturity of said note, defendants caused
the same to be placed in the hands of T. Bedman, a notaiy pub-
lic, residing at Natchez, and qualified according to law to de-
mand payment thereof, and to notify in a legal manner the said
indorser; that it was the duty of the said Bedman not only to
notify said Walker of the non-payment of the note, but also to
make and keep a fair registry of all his official acts in the prem-
ises, and to state the manner in which said notice was forwarded;
622 Hyde v. Flantebs' Bake. [Louisiana.
that said note was protested for non-payment by the said
notaiy , who omitted to notify said Walker, and also to keep any
register relating to such service, by which fault and negli^nce
the said indorser was released from all liability; that on an action
being brought by them against said Walker before the circmt
eourt, in and for the county of Adams, in Mississippi, a yerdict
was rendered against them because no proof could be fumishod
that said indorser had been duly notified of the protest, and that
no such proof existed in consequence of the fault and n^Ugenoe
of the notary, in omitting to make a full and true record of the
service of the notice, as required by law, whereby the peti-
tioners ayer that the defendants have become responsible unto
them for the amount of such note with interest, and the ex-
penses of the suit against the indorser. The general issue was
pleaded. There was judgment below for plaintiffs, and the de-
fendants appealed. The plaintiffs introduced in evidence the
record of the suit in which Walker was discharged. It clearly
appears from the evidence as well as from their own ayermenta,
that their failure to recover in that suit was entirely ovnng to
the neglect aiid omission of the notaiy, Bedman, to make a
proper and sufficient record of the manner in which he had
served notice on this indorser; the notary having died before
the trial, and his record being so deficient as to make no legal
proof of such notice, the plaintiffs remained without any evi-
dence whatever to establish this material &ct, and a verdict was
rendered against them.
The question is, whether this neglect of duty on the part of
the notaiy is chargeable to the defendants; or whether the
notaiy, being an independent sworn officer, acting under the
authority of the state of Mississippi, vras not, as such, the agent
of the plaintiffs as much as the defendant, and liable directly
to them? The solution of this question, in our opinion, de-
pends on the character of the acts he omitted to do or per-
formed in an illegal or inefficient manner. By reference to the
statute law of Mississippi, which has been given in evidence, it
is provided " that notaries public, not to exceed three in num-
ber in each county, shall be appointed and commissioned by
the governor upon the recommendation of the county court of
the seyeral counties; and that before entering upon the duties
of their office they shall take and subscribe an oath, and shall
give bond vrith two good and sufficient sureties in the penalty of
two thousand dollars, conditioned for the faithful performance
of the duties of their office; which bond shall be recorded with
March, 1841.] Htde v. Planters' Bank. 623
the derk of the county court of the county where they reeide,
-and may be sued on by any party or parties injured, in like
manner and with like effect as bonds given by sheriffs and
•coroners for the faithful execution of their respective offices."
It is further proTided, ** that when any notary public shall pro-
test any promissory note, bill of exchange, or other instrument
of writing, he shall make and certify on oath a full and true
record of what shall have been done therein by him in relation
thereto according to the &cts by noting therein whether de-
mand for the sum of money mentioned in the same was made, of
whom, and where the requisite notice or notices were served and
on whom, when the same were mailed (if such be the case), to
whom and where directed, and every other fact in any manner
touching the same shall be distinctly and plainly set forth in
his notarial record; and when so made out and certified it shall
have the same validity, force, and effect in all courts of record
within the state as if the said notary were personally present
and interrogated in open court," etc. From these enactments
it was clearly a part of the official duties of the notary to have
kept a full and fair record of the manner in which he had
served the notice of protest on Walker. The testimony shows
that if this had been done, plaintiflfe would have had no diffi-
culty in recovering of the indorser; the notary had thus made
himself and his sureties liable on his official bond to any person
injured by his neglect and failure to comply with this duty im-
posed upon him by law.
Can the defendants then be held responsible for his de-
fault? We think not. They used that care, attention, and
diligence which men of common prudence bestow on their own
affiurs. They did for plaintifCs all that the latter would have
done themselves had they retained the note in their possession.
When the holder of a note wishes to possess evidence of the
service of a notice on an indorser, he must of necessity substi-
tute another person to perform the service; from the corporate
character of defendants it was known that it could be performed
by them in no other way than by substitution. In this neces-
sary selection of a subagent, common prudence suggested to
defendants the propriety of employing one not only competent
in every respect to do the particular act of giving notice to the
indorser, but whose official duty it was to make out a record,
which in case of his death would preserve for plaintiffs, legal
evidence of the service he had performed. But the notary, in
making out the record required by law, neglected in this case to
624 MuNiciPALiTT No 2 V. Cotton Press. [Louisiana^
mention the place to which the notice of protest had been sent
to the indorser, and the testimony shows, that he being dead ai
the time of the trial, no proof of such notice could be made,
either by his record or otherwise. To make defendants respon-
sible for this neglect of official dnty on the part of the notary,
would be rendering them the sureties of that officer; it would be
changing the ground upon which alone they can be held liable,
to wit, that of negligence in the discharge of their duty to their
principals. It is in eyidence that T. Redman was the notary of
defendants, and' did all their business of the same descrip-
tion. If, instead of employing him, defendants had giyen the
notice to one of their clerks, or any other individual however
competent, and after performing the service, the latter had died,
plaintifb would have had just cause to complain that a course
was pursued for them different from that which defendants had
found proper and beneficial for themselves. But by acting as
they did, it appears to us, that their undertaking was fully
satisfied. If, by the fault or neglect of the notaoy they em-
ployed for plaintiffs, the latter have suffered any injury, th^
must look to the sureties on his official bond, because such fault
or neglect was a breach of his official duties: MontiUei v. Bank
of the United States, 1 Mart. (N. S.) 368; Story on Agency, 189,
sec. 201; La. Code, arts. 2977, 2978; Srnedes v. Utica Bank, 20
Johns. 877.
It is therefore ordered that the judgment of the district court
be reversed, and that ours be for the defendants with costs in
both courts.
Bank is Lzablb iob NsaLBcr or a Notaxt employed by it, with reipeot
to giving notice of non-aooeptanoe of a biU of exchange, that not being a
purely official act; as to acts that are strictly official, the rule may be other
wise: AUen v. MerekanU^ Bank, 34 Am. Dec. 289, in the note to which the
cases hitherto reported in this series, in relation to this subject, will be foond,
together with a fall review of the authorities.
MuNioiPAiirrT No« 2 v. Oblbanb Gc^rroN Press.
[18 LouniAMA, 129.]
Ripakiak Estate is Entitled to thk Alluvial Aocrbtiomb that may
be formed upon its front.
Lboislaturb can not Defbivb a Riparian Pbopbuiob of his ri^t to
the futore alluvion that may be deposited upon his river front.
Idem. — Change in Cuaractbe of Pbopsbtt vbom Rxtsal to Ubban,
effected by its incorporation as a city, does not deprive it of the ri^t tc
future formed alluvion.
April, 1841.] MuNiciPALiTT No. 2 u Cotton Fbxss. 62fi
PlmfGiPixs OF THB BoMAH AiTD Sfanxsh Lawb, with respeot to aIliiTioii»
explained.
PknroiPLB THAT Gives Alluvion to tbx Bipabian Pbopbixiob upon
whoae front it is depoeited, ia founded upon the consideration that
his exposed situation hurdening him with the risk of loss through the
agenc7 of the river, he should be allowed the benefits which its con-
tiguity may confer, as a compensation. It in no manner depends upon
the duty of keeping up levees and embankments to guard against the
overflow of the river. To the same point, Garland, J.
iMTXBVSmnON OF A PUBUO BOAD BETWKEN A TrAOT AND A BlVKE doeS
not prevent the gain by alluvion from belonging to such tract*
Dbdioation, What not.— Whbbb a Tkaot Fbontinq on a Bivib, and ad-
joining a city wherein it is afterwards incorporated, is divided by its
owner, on a plan thersof, into eity lots, streets being laid off thereon
in continuation of those of the city, and lots are sold with reference
to such plan, if on the plan between the river and nearest parallel street
a vacant strip is left, which is not divided into lots, but on which no
word is written indicative of an intent to dedicate to the public, no pre-
sumption of an intention to dedicate such strip to the uses of commerce
or otherwise to the public, will be presumed. It will be different, if on
the vacant strip such a word as " quay," or other word indicative of such
intent, is written. To the same point, Garland, J.
Wbxrb a Public Usb Exists in thb Banks of a Bivbb, the future allu-
vial accretions will be subject to the same use; but the right of property
therein will be vested in the same person in whom is the property in the
bank; and it seems that when, by reason of the increase by aooretions,
any part of the original bank is no longer needed for the exercise of the
use, the owners of the right of property therein will also be entitled to
its occupation.
Thb case appears from the opinion. A description of the
plan of the fanbouigy made by Mrs. Delord, appears in the opin-
ion of Gkirlandy J.
Maeureau, L. Peirce, and Carter, for the plaintiflB.
Preston, Bo9elm8, B, JBurU, Eugtia, 8<mU, and Eoffiman, contra.
BuLLABDy J. In this cause, the court has had the ad-
Tantage of an able and elaborate discussion on both sides, as
weU in writing as oral, in which have been displayed the great
resources of the bar in ability and varied learning. We have
been enabled at our leisure to weigh the arguments and examine
the authorities on both sides, and to give to the whole subject
that patient and dispassionate consideration due alike to the vast
interest at stake, to the character of the parties, and to public
expectation. It would have been more satisfactory to ourselves
if we could have been unanimous as to the final result; but as
there exists some difference of opinion among the judges, I pro*
oeed to pronounce mine, and to set forth the grounds and rea-
Am. Dsa Voi^ XXXVI— 40
626 MtTNidPALiTT No. 2 V. OoTtOiS PBB38. [LoaisiaxMi^
Bons upon which it rests. I will not affect to conceal with what
anxiety I examined again and again the principal question in the
case, when I discoyered that I should have the misfortone not
to concur with the senior judge» who had been for so manjyeaca
familiar with the yexed question of the battore in all its phasea,
while this is the first ooca8ion» upon which ithas been diaouflsed,
since I hare been a member of this tribunal.
The munidpaliiy claims to be owner of the alluTial forma-
tion fronting the suburbs Delord and Saolet, between New
liCTee street and Front street, bounded on the upper side bj
Bo£Bgnac street and by properly in lots separating it from
Benjamin; which lot or parcel of land, it is alleged, was formed
by alluTion long after those suburbs were laid out as faubomga
of the dty of New Orleans, and after they were actually attached
to, united with, and incorporated into, and made a part and
portion of the city of New Orleans, or was at each of the said
epochs, so inconsiderable in its formation and extent as to be
incapable of individual possession, use, or occupation of any bind
whatever, without the use of artificial means, the same being
even at the lowest stages of the water of the river barely peroepti*
ble, and all the rest of the year entirely covered and forming a
part of the bed of the river — ^by reason of which incorporation
with said dtj (the petition goes on to allege) and the laying out
and dividing tiie said land, of which the said faubourg is com*
poBed, into town lots, streets, etc. , as a part of said cify, the title
to all the said batture or alluvion then so imperfectly formed,
or thereafter to be formed, became by law Tested in the corpora-
tion of the said city of New Orleans, for the sole and exclusiva
use of the public and is now vested in the plaintifls.
Upon the lot of ground thus described, it is alleged, the de-
fendants have erected buildings and stores for pressing cotton,
etc. , and have appropriated the same to their sole and exclusive
use as their property, and to the entire exclusion of the public,
and have converted the natural and lawful destination of the
said land to public purposes and uses into private property. It
is further alleged that within the last ten yearn there has been
formed in front of the lot of land above described, >y gradual
deposit of the river, a considerable space of batture or all!:vion,
now vacant and unoccupied except for public uses, and whidi if%
in like manner vested in the said second municipality for pubL*
use and benefit, and that the defendants, pretending to claim
the same as their private property, and as forming a part of the
ground described, have menaced and, as the petitioners believe.
April, 1841.] MxTNiciPALiTT No. 2 V. Cotton Pbess. 627
are about to occupy the same and to convert it. to their own use
to the exclusion of the public. The plaintiffs conclude bj pray-
ing judgment that the title is Tested in the plaintiffs for the uses
and purposes above mentioned, and that the defendants be for-
ever enjoined from any use, occupation, or possession thereof,
and for damages.
The defendants first pleaded the exception of res judicata
founded upon the judgment rendered in the case of Henderson ei
cl. V, The Mayor, Aldermen, and Inhabitants of the City of New Or-
leans;^ and in case the same should be overruled, they deny all
the &cts and allegations in the petition so far as they assert any
color or pretense of title in the plaintiffs to the premises de-
scribed: and they deny the plaintiffs* title to any alluvion
already formed or which may hereafter be formed in front of
eaid premises. The respondents further aver, that they are the
riparian proprietors of the property claimed by the plaintiffs, and
as such entitled to all the alluvion which has been formed or may
be formed in front of their said property. That they possess the
flame with all its rights and privileges, and especially as a part
thereof, the right of alluvion, in virtue of a sale or concession of
the king of France. That the said property with all its said
rights was vested in these respondents, and those through whom
they claim, from the date of the said sale or concession, and
that they can not be divested of their right without their con-
sent, and without a just and previous indemnity. They further
aver that the plaintiffs have repeatedly admitted and recognized
their right and title by formally putting them in possession of
sundry portions of batture successively formed before their
property and attached thereto since the incoix>oration of the city
in 1805, by charging them with all the burdens and duties of
front proprietors, and by various other acts by which the re-
spondents' right is distinctly recognized.
Upon these pleadings the parties went to trial in the court
below, and the exception of res judicata having been sustained
as to the lots of ground first described, upon which the defend-
4ints had erected their warehouses, and overruled as it relates to
that portion of the alluvion lying on the outside of the levee and
in front of the same property; and after a trial upon the merits,
'judgment having been rendered in favor of the plaintiflw for the
land last described, according to the prayer of the petition, the
defendants appealed. The municipality has not appealed from
that part of the judgment sustaining the exception of res judicata^
1. 8 lA. 068, and fi Id. 416.
628 MuNiciPALiTT No. 2 V. Cotton Pres& [LouisiaDai
EB to that portion of the property in controversy upon which the
defendants' buildings are erected, but ihey ask a modification of
the judgment in that respect. We have therefore first to inquire
into the question whether the judgment in the case of Henderson
et al. V. The Mayor, Aldermen , and InhabUanta of the CUy of New
Orleans forms a bar to this action, as carrying with it the an*
thorify of the thing adjudged between these parties.
A careful examination of the arguments and authoritieB on
this point has failed to satisfy my mind that this exception
ought to have been sustained in the court below. It appears to
me so doubtful that I think the judgment in this particnlar
should not be disturbed, and that the whole case is fiurly open
before us on the merits, on the answer to the appeal. Proceed-
ing, therefore, to examine the case upon the merits, I begin by
assuming as undisputed &cts, that the Jesuits' plantation, of
which the lots in rear of the premises in controversy formed a
part, was from its local situation, fronting on the Mismflsippi,
and exposed to abrasion by its currents, entitled to any alluvial
accretion upon its front, and that such was the condition of
things in 1805, when the city of New Orleans was incorporated
by an act of the territorial legislature, and the properdin ques-
tion embraced within its limits. That in 1806 or 1807, a part
of the land was laid out as the Faubourg Delord, and lots sold
in conformity to the plan. Such being the case, if the same
land or that part of it which still fronts upon the river has
ceased to enjoy the same advantage, to the profit of the owners
of such front, or has lost the right of accretion, and since that
period the alluvion formed belongs not to the owners of the
front lots, but to the diy, such a change — such a dismember-
ment of the properly — ^musthave resulted either from the opera-
tions of law, or from the consent of the former or the present
proprietors. It would seem, therefore, that the inquiry before
the court is twofold: first, into the effect of the act incorpo-
rating the city and embracing the properly in question, now
composing the faubourgs Delord and Saulet within its limits;
and secondly, whether the laying out of the faubourg as ehown
by the plans and disposing of lots in conf ormiiy thereto, or any
other acts of Madame Delord or her successors, taken in con-
nection with the various ordinances of the dtj council, furnish
sufficient legal evidence of an intention, on her or their part, to
dedicate the properly claimed by the plaintiflh, to public uses,
so as to constitute a locus publictis. Under the first head I will
consider merely the legal operation of the act of 1805, wholly in«
April, 1841.] MtTNiciPALirr No. S v. Coitok PBBsa 629
dependentof the will of the then proprietor, and how &r the ohar-
aoter of the property was changed thereby from rural to urban,
so far as it regards the right to profit afterwards by any alluTial
increase; and under the second, I will consider the effect of the
same act, together with the several ordinances of the city coun-
cil, and especially that of 1831, by which a part of the fau-
bourgs Delord, Saulet, and Lacourse were finally incorporated,
as it is termed, that is to say, admitted to all the advantages
and subjected to all the burdens of the square of the city,
taiken in connection with the acts and declarations of the parties.
1. If the act of 1806 which incorporated and defined the
limits of the dty of New Orleans, embracing a large extent of
territoiy from lAke Pontchartrain to the river and numerous
plantations fronting on the Mississippi, and all previously enti-
tled, according to the existing laws, to any alluvion which might
be formed upon their front, had declared in explicit terms, that
after the passage of that act, the owners of such tracts of land
fronting on the river should no longer be entitled to any allu-
vion which might be formed, but that the same should thereafter
accrue to the benefit of the ciiy, there is not perhaps a single
mind, capable of discriminating between the legitimate exercise
of legislative authority and acts of sheer spoliation, that would
not pronounce such an enactment to be without any constitu-
tional validity. Will it be said that the right to future alluvial
formations is not a vested right ? I answer that such right is
inherent in the property itself and forms an essential attribute
of it, resulting from natural law in consequence of the local sit-
uation of the land, just as much as the natural fruits of a tree
belong to the owner of the land; and that such an attempt to
transfer from the owner of the land to the city, the future in-
crease by alluvion, would be as legally absurd, as if the legisla-
ture had declared, that after the incorporation of the city, the
fruits of all the orange trees within its limits should belong
thereafter to the dty and not to the owners of the orchards and.
gardens. If such would be our judgment upon an express
enactment, a/artiorif should we declare that such an effect could
not follow by mere implication?
But the argument is, as I understand it, that the character
of the property was changed from rural to urban by the incor-
poration of the city; and inasmuch as urban property does not
by law enjoy the right of alluvion, as is contended, consequently
after that period, the city is entitled to the increase and not the
front proprietors. Admitting for the present, and for the pur-
630 MuNiciPAUTT No. 2 v. Cotton Pbess. [Lonisiaxia^
poses of this argument, that fay the Roman and Si)anish laws,,
the right of alluTion is not enjoyed by urban estates, and thai
they form an exception to the general rule, yet it appears to me
the same difficuliy recurs; for if the legislature without my con-
sent places my property in a new category or gives it a new
classification, or in consequence of which it is shorn of one of ite
original attributes, it is not easy to distinguish such an act from
one by which the same result is sought to be obtained by direct
• enactment. It is after all but a circuitous way to the attainment
of the same end, and is equally repugnant to the first principles
of justice and to all constitutional restraint upon the legialatiye
power. This argument presupposes that the original tract was
entitled to alluyion, and I now speak only of the effect of the
act incorporating the ciiy and extending its limits so as to em-
brace the Jesuits' plantation; without regard to any subsequent
acts of the front proprietors, from which an intention to dedi-
cate to public uses might be inferred, and it appears to me, that
in truth the act of incorporation might be laid entirely out of
Tiew and our inquiry confined to the eridence of dedication — on
this point, the court I believe is unanimous.
But supposing these principles are questionable, and tliat I
am mistaken in this view of the subject, is it true that urban
properly fronting on the nrer is not entitled to alluvion, and
that such an exception is recognized by the Roman or the
Spanish law? This question leads me briefiy to look into the
doctrine of alluvion, its foundation and its limitations and ex-
ceptions. The doctrine, in my opinion, does not cover a very
wide space, and in this discussion, the question as it has been
treated, and as I propose to treat it, becomes one rather of
language and philology than of law. The Roman legislator,
instead of giving the more exact and scientific definition of our
modem codes, announces with oracular brevity, a great rule of
natural equity: '^PrsBterea, quod per alluvionemagrotuoflumen
adjecit jure gentium tibi acquiritur,*' which I translate as follows :
** Moreover, whatever the river has added to your land becomes
yours by the law of nature (or nations)." I use the "RngligK
word land instead of field, because it appears to me that the
word ager in the text is employed in its primitive sense to
signify land or soil in the abstract, without regard to any idea
of property or to any particular form or size, or shape, precisely
as it is in the Greek, from which it is derived {agros)^ and as it
is the compounds into which it enters both in Latin and several
modem languages, such as ** agricuJtbura^ agrioola, agrarivM^
April, 1841.] MuNiciPALiTT No. 2 v. Cotton Press. 631
and agrimensor" It irill not be pretended that agriculture is
confined in any language to the culture of a field without a house
or other building upon it, as the word (iger signified according
to Bodrigues and even the Boman digest. The language itself
furnishes internal evidence that such was its primitiTe meaning,
fortheearliestas well as the most useful of human arts, that which
in a great measure feeds and clothes the great family of man, de-
riyee its name from that word in combination with another which
signifies to cultivate. Again,alluTionisarightfoundedonnatural
law, in which the maxim certainly applies with all its force, that
where the reason is the same, the law is the same, and would
that law distinguish between two contiguous estates or tracts of
land fronting on a watercourse, and equally liable to be wasted
by its encroachments, deny to that which should have a building
upon it, the natural chances of accretion, while it gives it to the
other ? I think not, any more than agriculture should be taken
to mean the tilling of a field on which no edifice exists. That
the word ager was sometimes employed to signify something
different there is no doubt, and so is land in English; its
primitive signification is soil, ground; but it sometimes means a
country or territoiy, as ''the land of my fathers," ''the land
of Canaan." This arises from the poverty of human language
and the impossibility of having a distinct word to signify evexy
object in nature, and all the infinite varieties and shades of
ideas. The Boman language at an early period was as poor as
the Boman people. Witness the fragments of the twelve tables
which it requires a profound antiquarian to decipher. But it
adopted new words, with as much avidify as the Bomans
accorded to subject tribes the rights of citizenship; and we have
the authority of Horace for saying that even in the Augustan
age new words were always welcome, provided they flowed from
a Grecian source.
" Et nova faotaqne nuper habebnnt verba fidem, bL
Qxnoo fonte cadant, pared detorta.**
Mot only the same word came to have different significations,
but new and sometimes odd combinations of words were re*
sorted to in order to express new ideas or objects. The word
jyfwdium^ for example, about which so much has been said in
the course of this argument, is supposed to have been derived
from the word prasda^ which means plunder, because it was
originally an allotment of land, the spoils of conquered tribes;
as the word plunder among a certain class of our citizens, is used
to signify the scanty chattels of the poor.
632 MuNicrPALiTT No. 2 v. Cotton Press. [Loaisianaw
Much stress is laid upon the definition of agery in the Par-
tidas, law 8, tit. 33, par. 7, to prove that it was only fields
without buildings on them, which enjoyed by the Boman law
the right of alluvion. It is iane the Partidas says it means in
Latin ' ' como campo para sembrar en que no ha casa ni otro edeficio
fueras ende alguna cabafia o cho^a para cobrar los frutos." The
authority of even Alphonso the Wise, to fix by statute the meaning
of a Latin word, may well be questioned. That it did not always
bear that narrow meaning, and sometimes signified land or soil
in general, is manifest from the usage of the best authors. Vir-
gil, for example, speaks of SichsBus, the first husband of Dido,
as ''ditissimus agri Phoanicum'' — ^meaning, as I understand it,
the richest of the Phoenicians in land — and afterwards of Oa-
mertes, as the richest of the Ausonians in the same species of
property. It is probable each had something more than a field
without a house. .SSneas was promised in his future empire '' a
rich exuberance of soil — divitis uber agri.'' In the first book
of the Georgics we find within the compass of a few lines the
words teUwB^ arvum^ ager^ terra^ and campus used, as nearly
synonymous. But in the following lines I think the word ager
is most manifestly used as contradistinguished from arva, which
we all know means fields; the soil is represented as parched
with heat, while little streams are conducted so as to irrigate the
fields; so that ager implies more than one field.
•< Et cam eziutas ager moiientibDB aMtoat herbiB,
Ecoe Buperdlio cliyod tramitiB nadam
Elicit: ilia cadena raucam per leria mnrmiir
Saxa ciet, Bcatebriaqae arioitia temperat
But without relying too much upon the authority of the poets,
we have that of Niebuhr, one of the most profound scholars and
acute philologists of modem times, and who had made the agra*
rian institutions of Borne the subject of long and laborious in-
vestigation. This authority, I venture to say, is worth all the lexi-
cographers, whose works have been consulted and referred to in
argument. In an appendix to his second volume of the history
of Bome, he gives us much information concerning the Boman
mode of partitioning landed property, the limUalio or survey,
and the peculiar terms of the ancient national law. He sa} s,
'' ager, a district, was the whole territory belonging to any civil
community, in opposition to terra, a country, which comprised
many such proprietary districts; as for instance, terra Batta
OrcBcia. All landed properly {ager in its restricted sense), was
either Boman or foreign — '' aut Bomanus aut peregrinus/' All
April, 1841.] Municipality No. 2 v. Coiton Press. G33
Roman land was either the property of the state (common land,
•domain) or private property — " aut publicus aut privatus/' The
public domain is always called ager ptiblicus, there was also ctger
vectigalia^ and ager municipdlis according to the same aathor, and
tnentioned in the pandects.
But the text of the pandects shows that the word ager, in ref-
erence to this subject of alluvion, was used indiscriminately with
fundus and prasdium. In three successive paragraphs these
words are thus used : 1. Prseterea quod per alluvionem agro nos-
tro flumen adjecit jure gentium nobis acquiritur. 2. Si vis
fluminis partem aliquam ex tuo prsdio detraxerit et meo prsedio
attulerit,halam est earn tuampermanere. 8. Plane si longiore tem-
pore fundo meo hsserit arboresque quas secum traxerit in fundum
meum radicis egerit: in eo tempore viditur meo fundo acquisita
•esse. It will hardly be contended that in these three paragraphs
the three different words employed imply as many different kinds
of estates. Indeed, throughout the whole remainder of the first
title of the forty-first book of the pandects, which treats of
islands formed of the beds of rivers becoming diy in consequence
of a change of course, and returning again to the same channel,
the words ager^prasdiwm^ ajxd/undtis, are used indiscriminately,
indicating rather a difference of style among the different juris-
consults who contribute to that great work, than any essential
difference of landed property upon the margin of the streams.
In no part of it do I find any exception to the right of alluvion,
unless it be that established by the law in agria limUaiia, of which
I shall have occasion to speak presently. It is essential that the
land should be bounded on one side by a watercourse, but it
would seem to have been immaterial by what name the riparian
estate was called.
Cities may acquire jure aUuvionis, it is contended. This I do
not doubt, but then it must be as proprietor of the front or as
riparian proprietor. It would be absurd to say it could be
otherwise, for that is of the veiy essence of the right; the allu-
vion is but accessory; the front tract is the principal — ^the
former can not exist without the latter.
But to return to the law in agria limitatia which is greatly re-
lied upon to show that cities may acquire Jure aUuvioniaia some
manner not easily understood. Such a construction of that
law is apparently countenanced by what fell from the court in
the case of Fackwood v. Walden, 7 Mart. (N. S.) 90, in which it
was said, *' According to the law of the Boman digest in agris
limUaJbiM; although the right of alluvion is denied to fields of
)
634 MuNiciPALiTT No. 2 V. Cotton Pbess. [Louisiaiuv
that description^ yet it is gxanted to land on which a city is
founded/' I think this an error arising from a hasty considera-
tion of that law, and a translation manifestly ezroneons. The
text is as follows: " In agris limitatis, jus alluTionis locnm non
habere constat; idque et Divus Pius constituit. Et Trebatiaft
ait, agrom qui hostibus deyictis ea oonditione oonoessus sit ut
in ciyitatem veniret habere alluyionem neque esse Umitatom.
Agrum autem manucaptom limitatum fuisse ut scieretar quid
cuique datum eeset, quid yenissety quid in publico relictom
esset." The translation of this law as given by the senior
counsel of the plaintifb is as follows: " It is certain that the
right of allurion does not take place in limited fields. This
has been decided by a constitution of the Emperor Antoninus;
and Tiebatius says that land taken from a conquered enemy and
conceded under condition of belonging to a dfy, enjoys the
right of allurion, and is not considered as limited/' etc.
This translation is certainly justified by that of Hulot into
French, who appears to consider the expression " ea conditione
ccmcessus sit ut in ciritatem yeniret," as expressing a grant to a
dty of land taken from the enemy. But such a construction is,
in my opinion, contrary to the idiom of the language, as well as
irreconcilable with the history of the times to which it refers.
If it had been the intention to express a concession to a city,
the word expressing the grantee would have been in the dative,
civUaiif perhaps more properly, urbi. If , as is supposed by the
plainti£fs' counsel, the city is the grantee, the words ea condi'
tione are not only surplusage, but they make nonsense of the
passage. Does the grantor make a condition with the grantee,
that the thing given shall belong to the latter? If A. gives to B.
a tract of land, it belongs to the donee without any such condi-
tion. There can be no condition in such a case; with whom
would it be stipulated? With the grantee? Then you would
do BO vain a thing as to make the grantee or donee consent to a
condition, that the thing should belong to himself, which is
already his by the donation or grant. If, on the other hand, we
suppose the grantee to be understood, indefinite, or not named
with a condition that the land should belong to a city, no
reason can be imagined, why a nominal grantee should be inter-
posed, when the grant is to take effect in favor of a city. On
the contrary, in my opinion, the wotds *' ut in civitatem veniret,"
establish a condition of reversion to the republic, whether we
consider the concession as meant in favor of the conquered
enemy, by leaving them in possession, subject to the will of the
April, 1841.] Municipality No. 2 v. Ck)TTON Press. 635
state, and devictia hoslibus in tlie datiTe, or to an indefinite
grantee under the same condition of reversion, and the same
words in the aUatiye, merely ezpressiye of the fact that the land
hod been taken from a conquered enemy. De Brian NeayiUe,
the learned translator of Pothier's Pandects, considers the sense
of the passage to he, that lands given back to the conquered
enemy on condition of reverting to the republic, enjoy the right
of alluvion, and are not limited. Such a translation accords
also with the practice of the republic at that remote period.
Pothier, in a note to this law and its context, remarks, that when
lands were taken from an enemy, the possessors of such lots,
when passing under the domination of Bome, were sometimes
permitted to retain a part; another part was distributed to the
veterans, and another part was sold, deducting that which was
left to the ancient proprietor; but evexy part of those lands thus
distributed were measured and bounded, and hence were called
limitaH^
But the most satisfactory authoxify upon this as well as other
points of the Roman land law, is Niebohr. In speaking of the
limitaHs, this author says : ' * According to the agrarian institutions
no land was held to be marked by boundaries, save what had
been divided in conformity to the practice of the state, and to
that mode of observing the heavens which was adopted in tak-
ing auspices. Every other kind of boundary was regarded by
the Bomans as indefinite. The subject treated of by the agri-
mensores, is land thus marked out: other land they only men-
tion by way of contrast. Every field which the republic sepa-
rated from the common domain, was marked out by boundaries;
no separation could take place without such a demarkation; and
whenever there were any traces of the hitter, although partic-
ular estates within the region subjected to it might still be a
part of the domain, it was yet a certain proof that such a separa- .
tion had taken place. On the other hand, evexy municipal as
weU as every foreign region was held to be yrithout boundaries
(orc^mus), or merely limited by natural or arbitrary landmarks.''
" The hmd which was regularly limited and that which was in-
determinate in form along with all the other characteristics of
quiritaxy property, had both of them that of being free from
direct taxes, but their value was registered in the census and
tribute was levied accordingly. In other respects the limited
fields had certain legal peculiarities, concerning which, scarcely
any other express statement is preserved, than that they had no
right to alluvial land, the determinateness of their size being
636 Municipality No. 2 v. Cotton Press. [Lotdsiana^
«
the condition of their existence:" 2 Histoiy of Borne, appendix
1, by Niebuhr.
The same author further demonstiates that the limites which
separated these agH limiiaH were not imaginaiy lines and stakes
or landmarks, bat spaces of different widths, according to the
size of the squares, left forever open and public as highways.
They were marked out according to a system, of which the au-
thor gives^the general outlines in the following words: '^The
principle of the Boman limitatio was to draw lines towards the
four quarters of the heayens, parallel and crosswise, in order to
effect a uniform division of the lots of land which were trans-
ferred from the public domain to private property, and to fix
immutable boundaries for them. Hence these boundaries (the
limiies) were marked by a slip of land left for the purpose, un-
touched by cultivation, as balks or ways; as their extremities
were by a row of stones inscribed with numerals:" Id. Such
appears to have been the ancient law, not as introduced, or first
established, but rather confirmed at a later period by a constitu-
tion of Antoninus Pius; for Trebatius, whose opinion is given,
was himself a contemporary of Cicero.
There is further passage in Niebuhr, which tends to illustrate
the dause ** ut in civitatem veniret," which I can not forbear to
quote: " There was," says he, " a by-class in the Boman^rstem,
when the republic restored a conquered territory to its old in-
habitants, subject to the payment of a tithe or some similar tax;
this, as long as the precarious possession lasted, was like any
other impost, but the republic had the right of claiming the
land and turning out the possessors." After the most attentive
consideration of this part of the case, it appears to me there is
nothing in the Boman law which provided that the right of allu-
vion was restricted to land or portions of land, bearing particu-
lar names or having particular localities, but the right depended
altogether upon the question whether the tract had fixed and in-
variable limits or a natural boundary on one side at least, liable
to be affected by a watercourse — no matter whether it bore the
name of ager, prcedium, or fundiL8, nor do I find that cities
formed any exception to the general rule.
But the counsel for the plaintiffs endeavor to fortify their
position by the aid of law 26, tit. 28, Partidas, 3. It is in
the following words: '' Crecen los rios a las vegadas de manera
que tuellen e mengaan a algunos en las heredades que han en
las riberas dellos e dan, e crecen a los otros que las han de la
otra parte. E porende decimos, que todo quanto los rios tueUen
April, 1841.] Municipality No. 2 v. Cotton PREsa 637
a Ids homes poco & pooo, de xxianera que non paeden entender
la quantidad della poiqae no lo llevan ayuntadamente, quo la
gafian los sefiores de aquellas heredades, a quien lo ayuntan, e
los otros a quien lo tuellen non ban en ello que ver. Mas
quando acaeciesse, que el rio lle^ase de una heredad ayuntada-
mente, asi como alguna parte della con bus arboles, o sin ellos,
lo que asi lleTase non gafian el sefiono dello aquellos a ouja
heredad se ayunta; fueras ende, si estuyiesse j por tanto tiempo
que ndgassen los arboles en las heredades de aquellos A quien se
ayuntasen; oa estonce ganaria el sefiorio dellos elduefio de la
heredad do raigasen, pero seria tenudo de dar al otro el mercos
cabo que recibio porende segun el aluedrio de homes buenos, et
sabidores de lauores de tieira." This law is nearly a paraphrase
of the Boman law prasterea and the following, in which the
words ager, fundus, and prcsdium are used without distinction.
The word heredad is used in the Spanish text to express the
riparian property or land entitled to allusion, and the counsel
contends it must bear the same narrow meaning which they give
to eiffer, to wit, a field without a house. Heredad, in Spanish, I
understand to mean a landed estate, and the text might weU be
translated by using that English word corresponding to the
French word heritage. Thus the word oonyeys the same idea
expressed in the original law of the digest by the words ager,
fundus, and prasdium, I say the original, because the wisdom
of Alphonso was after all, in a great measure, but reflected
light, whose source was the Boman law, and which was some-
times not a little refracted by passing through a Gothic medium.
The plaintifis next iuToke the ninth law of the same title of 3
Partidas, as giving in express terms to towns and cities the
alluvion which is formed in front of cities. The law is as f ol*
lows: '* Apartadamente son del comun de cada una ciudad o
Tilla, las f uentes e las plazas o fazen las ferias e los mercados i
los lagares o se ayuntui a consijo e los arenales que son en las
riberas do los rios e los otros exidos e las carreras a corren los
caballos, e los montes e las ochesas e todos los otros lagares
semejantes d'estos, que son establecidos e otorzados para pro
communal de cada ciudad," etc. The counsel for the plaintiffs
confidently assert that this law is clear and explicit in its terms
and decisive of this controversy. The word arenales they con*
tend means alluvion, and in this they are in some measure coun-
tenanced by what fell from this court arguendo in the case of
Packwood v. Walden, 7 Mart. (N. S.) 90. But does the word
arenales necessarily mean alluvion ? Certainly not, nor can I
688 MuNiGiPALmr No. 2 v. Cotton Pbess. [LouisiaDa,
see any good reason for oonsidering it as used in that sense in
this law. None of the definitions of arenal to whidi our atten-
tion has been called in various dictionaries, oonveys any snch
idea as allavion, that is to say that portion of soil which is in-
sensibly (poco a poco in the language of the Pariidas) added to
and becomes a part of land bordering upon a watercourse; and
the only comment of Ghiegorio Lopez upon the word is a quoffre,
** quid de fluminibns?" as if he considered the arenales '* en las
riberas do los rios/' as forming a part of the bank itself of the
river, and consequently its use already belonging to the public
by a previous law of the Partidas and now given to towns in
front of whidi they exist, and he suggests the inquiry whether
the use of the rivers also be given to the city as well as the bank.
If it had been the intention of the law-giver to create an ex-
ception to the general role, as recognized in the Partidas, that
the alluvion belongs to the owner of the riparian estate or
heredad, such an exception would naturally have found its place
in immediate connection with the general law. Again, why
treat of the accessory, without any allusion to the principal? I
am rather inclined to think it means only the sandy beach com-
mon on shallow rivers, which are anything rather than alluvion
formations, and which the inhabitants of cities or towns are
authorized to use in common for their domestic or perhaiM agri-
cultoral purposes, or for public promenades, as the arenal of
Murcia on the river Segura: Mrs. Oudiing's Letters, vol. 2, 342.
Be that as it may, it appears to me clear, that all the objects
enumerated in the law are connected together and are ref ened
to by the words esUMeddas y ortoffodos; and if the threflhiTig
and grazing grounds and other conveniences mentioned in the
law, rest upon a grant to the town, the arenales are in the same
category, and according to my understanding of the law, it ib
only an enumeration of those things which are usually given or
reserved by the sovereign for the use of towns or cities laid out
by royal authority, or whidi they hold by usage or 1^ conces-
sion. In that sense substantially, Ghiegorio Lopez appears to
have understood it. ''Prsterea quod hie dicatur (que son
establecidos) non iQtelligitur, quod a jure sunt statuti pro civi-
bus; quia civitati vel castro de jure nihil corporate est deputa-
tum, quod sit de ejus pertinencia; nisi quatenus a lege aut
oonsuetudine aut hominum dispositione riperiatur ooncessum:'*
Note 6.
But the counsel for the municipality contends that the cor-
poration is in a certain sense riparian proprietor, and therefore
JLpril, 1841.] MiiNiciPALnT No. 2 v. Cotton PBEsa 639
•entitled to the increase by alluTion on the front. I can not do
justice to this part of tiie azgoment without quoting the Ian-
.goage of the senior counsel, in which he develops his Tiews
-on this point. " To any person/' says the counsd, " who has
studied the dTil law of Louisiana and knows the source from
whence this text is drawn (art. 501, La. code) as well as the
legal acceptation of the term 'fonda riverain' (riparious estate),
this text is sufficient to form a decision on the conflicting daims
•of the city and private individuals— owners of lots which are
only portions of the estate (fonds) upon which the city is
iounded (JbndUe). He will entertain no doubt that the city
juid not the owners of these lots is the riparian proprietor:"
Page 121. " To build a dty," continues the counsel, *' town, or
village, it is necessary, I conceive, to have first the ground
ifonda). This (the fundus) being had, the town is buUt upon
it. Thus built the town becomes inhabited, and the inhabitants,
for the purpose of ingress and egress to and from their houses,
etc., and for access to the river upon the borders of which it is
sitoated, for returning therefrom, and for that of traveling over
the whole front of the town, if their business requires it, have
streets, roads, issues, and avenues, which are no more than parts
•of the ground, foundation (fonds) upon which the town is
seated. What is the nature of this property (fonds) now? Is
it not an urban property? To whom does it belong? Neces-
4»rily to the community called a ciiy; to that aggregation of
persons who inhabit it. Each of them is proprietor of the lot
on which his house is situated, and all possess in common the
streets, roads, issues, and avenues, to the use of which every
stmnger, whose affiiirs lead him to the town, is in like manner
entitled."
He then supposes the prince or the individual who should
have founded a ciiy would no longer be regarded as proprietor,
imd could no more sell the soil upon which the city is built than
he could the inhabitants; that he no longer remains master of
the ground (fonds) upon which the town is built. *' We must
therefore conclude," says the counsel, ^* that the ground (fonds)
which was rural and by its conversion into a city has become
urban, no longer does or can belong to its ancient master; that
it is and can only be the property of the public — of that aggre-
gation of inhabitants, who by the fact alone of the roads,
etreets, issues, and avenues being destined to their common use
form one community."
It is not easy to conceive how the city in the case thus sup-
640 MuNiciPALiTT No. 2 V. Cotton Press. [LooisiaDa^
posed, in its corporate capadtj, becomes proprietor of the port
in such a sense as to profit bjr the allnidon. Take the square of
the city, for example, which was laid out by the sovereign. The
original plan ezhibits a front row of houses — ^nezt, a vacant space
marked qimi, then the levee and the xiver. The front lots belong
to individuals, and are bounded in front by a locus publicus^ ihe
quai. In what sense is the corporation a front proprietor, evbn
admitting that the owners of the lots fronting the quai are not
so? I admit that if a batture should be formed in front of tha
square of the city, it would be an addition to a loctis piMicus,
but that does not prove what is contended for, because the dty
is not proprietor of the locus pubUcus^ but only administrator.
It belongs as much to a citizen of Ohio as to a citizen of New
Orleans. It is a place left open for the convenience of com-
merce, and for the use of the whole world — a thing Jiors de com-
merce. But so far as the case supposed is meant to apply to the
Uxms in quo, it assumes as true what is yet to be shown, to wit:
that the lots in front are not bounded by the xiver, that they are
not liable to abrasion by the river to the loss of the owners; and
that the proprietors would not be bound to give a new levee or
a new road, in the event of the exiflting one being carried away.
These are questions which we are to examine in this case, and
therefore we can not begin by assuming that the corporation ia
the riparian proprietor. It is certain that the Jesuits' plantation
was originally entitled to the alluvion, and I am now only aiguing-
what change was produced by the mere incorporation of the city
in 1806. The question of dedication yet remains to be investi-
gated— ^for the present it is enough to say that in my opinion the^
change of the name of the property ^m rural to urban, by the
mere act of incorporation, neither made the city a front proprietor
in the sense contended for by the plaintiflh, so as to enable it to
acquire jure aUuvionis, nor did it per se deprive the front lots
into which the property was subdivided (provided they fronted
on the river) of the right of such accretion.
The counsel for the plaintiffs endeavor to fortify the claim of
the city to the alluvion by showiag that the charge of keeping
up the levee is borne by the whole city and not by the front pro-
prietors, and that, therefore, the former ought to enjoy all the
advantages resulting from the situation of the land — ^upon the
maxim, " qui senJtU orms, sentire debii et commodum.'* That thia
axiom of equity lies at the foundation of the right of alluvion
may be true — ^it is but just that the risk and loss reealting from
the situation of the land should be compensated by the chancea
April, 1841.] MuNiciPAUTT No. 2 v. CIotton Pbb» 641
of increase hy allnvion. Bat the onus or burden spoken of, is
natural, not oiTil. litis a risk arising from the exposed situation
of the land, not the expense or trouble of making embankments
to save the land or adjacent tracts from inundation. The right
of alluvion exists on streams which do not periodically overflow,
as well as others which do, and those police regulations which
relate to the making and keeping up of levees have nothing to
do, in my opinion, with the question of alluvion.
The arguments of the counsel dravm from the supposed incon-
Tenience of having a port or any jMurt of its bank owned by in-
dividuab, and the danger of the public being excluded from the
use of it to the great detriment of commerce, would be entitled to
serious consideration, if it were not true at the same time, that the
public, through the agency of the corporation, has the sole use of
the levee and of the bank of the river. That the front proprietors
can not extend the levee vrithout the consent of the corporation,
and that the city authorities have a right to make all improvements
for rendering the whole most useful to the public and favorable
to commerce. So far as it concerns the pubUc convenience it
seems to be of little importance whether the future increase of
the batture shall be decided to belong to the public or to the
front proprietors, so long as the municipal authorities alone
have the entire control of everything on the outside of the levee
and have a right to establish wharves and other conveniences
which commerce may require. In most of the seaports .of the
union it is believed the wharves are private property. Here
they will be public, whoever may be considered the owner of
the bank of the river, subject to the public use. The Louisiana
code is explicit on this point: '* The use of the banks of nav-
igable rivers or streams is public, etc., nevertheless the prop-
erty of the river banks belongs to those who possess the adjacent
lands." " On the borders of the Mississippi where there are
levees, the levees shall form the banks:" Arts. 446, 448.
It is not pretended that the question which this part of the case
presents, has ever been directly adjudicated upon by this court;
but it is supposed by the plaintiffs' counsel, as well as the parish
judge, that the court has on more than one occasion given a
strong intimation, that in their opinion, the alluvion formed since
1805, belonged to the ciiy in virtue of the act of incorporation,
and especially in the case of Gochran v. Fort et oZ., 7 Mart. (N.
S.) 622. In that case the plaintiff claimed a ciiy lot fronting on
the river, and the alluvion which had formed upon it since his
purchase. The question presented was mainly one of fact« to
Am. Dmo, Vol. XXXVI^Il
642 Municipality No. 2 v. Cotton Pbess. [Louisiana^
wit, whether the batture in front of the lot was or was not at the
date of the purchase susceptible of private ownership. If so,
then it could not be presumed that the vendor of the plaintiff
intended to sell it, and the only principle settled in that case
was, that the sale of a lot, front to the river, according to a plan
which shows the front line to be within the levee, does not carry
with it alluvion, provided, at the time of the sale, a batture was
formed of sufficient height and magnitude to be susceptible of
private ownership. The converse of the proposition, it would
seem, ought to be tried also, to wit, that the sale of a ciiy lot
fronting on the river, would carry the alluvion, which had
formed since the sale. The only difficulty in the case was to as-
certain the mere matter of fact, to wit, did the batture in front
exist or not at the time of the sale ? The court decided in the
affirmative, and consequently the plaintiff failed in his action.
After deciding the matter of fact decisive of the case, to wit,
that in February, 1808, a batture did exist which, with a five-
feet levee, might have been used as private property, the judge,
who acted as the organ of the court, made the remark upon
which so much stress has been laid, to wit: *' Supposing this
view of the subject incorrect, and that we were to conclude with
the plaintiffs that no batture susceptible of ownership existed in
February, 1803, their case would not be much stronger. The
faubourg vras incorporated two years after. To enable them,
therefore, to recover in this action, they must show a batture
created between the day of their purchase and the date of the
act of incorporation, which was susceptible of ownership; for if
the alluvion was formed afterwards, it became the property of
the ciiy, and not of the front proprietors." Certainly the de-
cision of that case did not require such a remark. It was purely
speculative, and although it may perhaps express the opinion of
that able judge at the time, yet it does not appear to have been
a point discussed during the argument, nor at all material in the
case. The question now presents itself directly before us be-
tween the ciiy and the owners of front lots in relation to allu-
vion, formed since the act of incorporation, and I am of opinion
that the mere act of incorporation did not change the character
of the property, and gives no new title to the city. On this
point, I believe, we are unanimous.
The words used by me, as the organ of the court, in the case
of Municipality No. 1 v. Municipality No. 2, 12 La. 49, have
been also alluded to as indicating a strong opinion the other
way. The expressions were: '' The pretensions of the defend-
April, 1841.] MuNiciPALiTT No. 2 v. Cotton Press. 643
ants as set up in their answer to the exclusive ownership of the
property in question, and those of the plaintiffs, etc., to take
one hundred thousand cubic yards of sand from the batture ad
Wdhim, etc., are, in our opinion, equally unfounded and pre-
posterous." In that case there was an express dedication to
pubUc uses of the alluvion in front of the suburb St. Mary by
a formal contract between the city and the front proprietors,
and the act of 1836 refers to and sanctions that compromise;
and expressly provides that *' the municipality of the upper sec-
tion of the ciiy of New Orleans shall not in any manner obstruct
or impede the inhabitants of any portion of the city, in the free
use and enjoyment of any of their rights on the batture." With
such a legislative injunction, how could the municipality with
any proprieiy or consistency pretend to be the exclusive owners
of a locus publicus, which it was their duty to administer accord-
ing to its destination ? But that case and the present have not
the most remote analogy to each other.
2. I now enter upon the second branch of this inquiry, to wit,
whether the laying out of the faubourg, as shown by tiie plans,
and disposing of lots in conformity thereto, or any other acts of
Madame Delord, or her successors, taken in connection with the
various ordinances of the ciiy council, furnish sufficient legal
evidence of an intention on her or their part to dedicate the
property in questio^i to public uses, so as to constitute a locus
pvhiicus. The petition alleges, that, by reason of the incor-
poration with the said ciiy, and the laying out and dividing the
land, of which the faubourg is composed, into town lots, streets,
etc., as a part of said ciiy, the title to all of the said batture
or alluvion, then so imperfectly formed, or thereafter to be
formed, became by law vested in the corporation of said city,
for public uses. It is not distinctly alleged, that there ever was
a dedication to public uses, in a legal sense of the word, resting
essentially upon the express will of the dedicator, and assented
to by the public, evidenced by the public use of it, according to
the dedication. But the idea is, if I understand it, that the an-
nexation to the ciiy successively of the differenf faubourgs,
formed but a continuation of the square of the city, and im-
printed upon the land in front of the street or road nearest the
levee, the same character which the corresponding part of the
squares of the ciiy possesses, that of a quai. This system is de-
veloped with ingenuiiy and learning, in a pamphlet which has
been furnished us as a part of the argument in the case, but the
author's name is unknown to us. He considers the quai^
644 Municipality No. 2 v. Cotton Pbess. [LoaisiaD^^
marked upon the oziginal plan of the ciiy, as belonging to the
city, and not as a locus publums. It is of no consequence in the
present case, whether the original quai, as designated on the
plan made by the French authorities of Louisiana, be regarded
in that light as granted to the city, or as a public place. The
question is, admitting the old city to be, in that sense of the
word, the riparian proprietor, and entitled to any alluvion which
might be formed in front of it, whether it results from the plana
of the different faubourgs, that all the land between the front
row of houses and the levee partook of the same character with
that in front of the old city, and that the city was, as relates to
the land in ^nt of the faubourgs, also entitled to the alluvial
increase; or, in other words, that there was a continuation of
the quai through the different incorporated faubourgs. The
author, above alluded to, treats the old city as the nucleus,
around which the faubourgs have gradually clustered, and stand
in relation to it as children towards a parent, or perhaps more
properly, as partners and assodates.
It seems to me dear, that the right to alluvion in front of
each faubourg must stand upon its own peculiar grounds, that
there is not necessarily any connection between them. The
square of the city was laid out and founded by the sovereign.
The faubourgs were laid out by the proprietors of different
estates in the vicinity, each having a right to alluvion, and the
question, what was the condition of the front afterwards, would
depend not upon a general conformity of the streets and ave-
nues to those of the square of the city, but upon the disposition
made of it by the former proprietor. The French authorities of
Louisiana indicated an intention to devote to public uses, to
consecrate as a locus publicus, all the vacant space between the
first row of houses and the river, by vmting the word quai upon
various parts of the plan, and by leaving it open for public use.
If, in laying out the faubourgs, the ancient proprietors of those
riparian estates did the same thing, or what was equivalent,
then there is no doubt it amounted to a dedication, if accepted
by the pubBc. The present inquiry is confined to the Fau-
bourg Delord, and to the plan of it made by Madame Delord;
for with respect to the Faubourg St. Mary, it veas long since
settled, that the alluvion belonged to the front proprietors, and
it has subsequently been dedicated to public uses by a oompro-
mise between them and the ciiy.
It may not be amiss, hovrever, to refer to what the oouri said
April, 1841.] Municipality No. 2 v. Cotton Press. 645
in the case of Morgan y. Idvingstony^ with respect to the effect
of a plan of a faubourg made by Giavier, and the condition of
the property after its division into lots. '* On the morning of
the day/' says the court, *' on which Bertrand Gravier sent for
a surveyor, to make a plan of his plantation into lots and streets,
the land covered by it was rural property, burdened with ripa-
rious duties in his hands, and when the plan was finished by
the division into lots and streets, no alteration was wrought in
these burdens. When nine months after, Poeyfarre purchased
the trapezium, he purchased a rural estate, burdened with ripa-
zious duties, having the portion of the bank of the river before
it as an accessory. The sale discharged the vendor from, and
imposed on the vendee, the duties of repairing the road and
levee along the land conveyed. If any part of this portion of '
the road had been found out of repair, the syndic of the dis-
trict would have compelled the vendee to repair it, without the
least inquiry into the circumstance, whether his deed bounded
him on the road, or on the river; if he was really the owner of
the land, and separated from the river by the road only. The
banks of the river opposite to the trapezium, passing to the
vendee cum onere, must have passed cum commodo. *' Had every
lot in the faubourg been sold, the liability of the land which
they covered, would have continued the same," etc.
The ''member of the Louisiana bar," whose argument has
been mentioned, undertakes to maintain two propositions: First,
that the oiiy of New Orleans acquired, at the time of the imion
of the suburb Delord with the city, all the riparious rights
which Madame Delord possessed by virtue of a valid contract,
and for a valuable consideration; and secondly, that Madame
Delord has never disposed of any portion of her riparious
rights in favor of the defendants. The record does not furnish
us with any evidence of any such express contract, as is sup-
posed. In 1806, the plantation which afterwards became the
faubourg Delord, formed an integral jMurt of the city by the act
of incorporation. After it was laid out as a faubourg, it re-
mained for many years what was termed one of the unincorpo-
rated boroughs or suburbs of the city; that is to say, not yet en-
titled to participate with the square of the city in the advantage
of being lighted and guarded at the common expense. This
last step vras not taken until 1831, when, by an ordinance of the
city council, a part of the faubourgs Delord, Saulet, and La«
course, between the upper line of the faubourg St. Mazy and
1. 6 Km 19.
646 MuNiciPALiTT No. 2 V, CkxETON Pbess. [LcmiaiaDa^
the center of Lacourse street, was inoorporated, and required to
pay the same taxes, and anthorized to enjoy the same rights and
priTileges as the inhabitants of the square of the city: Ordi-
nance of April 8, 1831, City Iaws, 63. Up to that period, I
have seen no sanction by the city authorities of the plan of a
faabonrg adopted by Madame Delord, much less any contract
by which she abandoned the front of her land to the city. In-
deed, the uniform legislation of the ciiy council, from that time
until the inception of this suit, repels suchanidea. In 1817,anor-
dinance was passed concerning the unincorporated boroughs and
suburbs within the city of New Orleans, which provided, among
other things, that " the levees adjoining the estates bordering
on the river, situate in front of unincorporated boroughs or
suburbs, which have hitherto been kept in repair at the charge
of the proprietors, whose lands are bounded by the river,
whether by a particular dause stipulated between the vendor
and the purchaser, or of an obligation anterior to the settlement
of said boroughs or suburbs, shall continue to be kept in repair
at the expense of the said proprietors, in the manner prescribed
by the ordinance concerning highways, bridges, and levees
within the liberties of New Orleans." The ordinance last re-
ferred to was passed in 1815, and requires the front proprietors
to keep up the levee. The ordinance of 1830, the execution of
which led to the suit between the city and Henderson and
others, treated those who held lots uzider Madame Delord as
front proprietors. It directed a new levee to be laid off by the
city surveyor, commencing at the lower line of the faubourg
Delord, and running parallel with New Levee street to Boffignao
street, and then to the upper line of Mr. Byrne's property. It
directs the proprietors to be notified, and requires them to com-
plete and deliver said levee on the first day of November; and it
was made the duty of the mayor to notify tlie front proprietors of
lots in the faubourgs Delord and Saulet; and it further directs
the work to be done at their expense in case of contravention,
besides a penalty of one hundred dollars. A new road and
levee were directed to be laid off in advance of the former ones;
and the questions which arose, in the case of Henderson ei al. v.
The Mayor, Aldermen, and Inhabitants,^ presupposed the plaint-
iffs to be, in point of fact, riparian proprietors, for they related
to the obligation of the latter to furnish a new road, and to
make and keep up the new levee.
But if on the part of the city authorities every official act
1. 8 Lik 663. and 6 Id. 416.
April, 1841.] Municipality No. 2 u Cotton PBEsa 647
which has been brought to our notice, tends to show that the
city did not understand there was a dedication, resulting from
Madame Delord's plan of a faubourg, which constituted the
city the riparian owner, as is now pretended, how do the subse-
quent acts of Madame Delord and her successors accord with
the theory of a dedication to public use? On the twenty-sixth
of May, 1806, she sells to Larche three lots on the batture, ac-
cording to the plan of Lafon, of the twenty-first of March of
the same year, the purchaser taking upon himself the burden
of malring and keeping in repair the road and levee iu front of
said lots. On the sixth of June, 1807, she sells to Armand
Duplantier her plantation of about seven arpents, fronting partiy
on the river and partiy on the great route of Tchoupitoulas, and
among other titie papers handed over, appears a plan of the
plantation by Lafon, of the sixth of February, 1806. None of
the plans in the record contain any indication of the front hav-
ing been dedicated to public use, and her contract with Larche
and with Duplantier shows that she did not so understand it.
She continued to exercise acts of ownership as a riparian pro-
prietor, not only without opposition on the part of the city, but
the last ordinance of 1830, by the city authorities, acting as a
police jury and laying out a new road and levee, imposes upon
her successors, as riparian proprietors, the biurden of keeping
up the levee along their front.
Lafon's plan of the sixth of February, 1806, is now before
me. It exhibits the side lines of the plantation of Madame De-
lord, which separates it below from the faubourg St. Mary, and
above from that of Saulet, as running diagonally down to the
water's edge. The front lots are represented as bounded on New
Levee street, and the levee is marked along the side of the
street, and between it and the river« at a distance of about
fifteen toises from it. There is no mark indicating any inten-
tion on the part of Madame Delord to give up her claim or
titie to the land forming the levee and on the outside of it.
Since the date of that plan, the land upon which the cotton-
press stands, has been formed, and the levee and public road,
laid out by order of the city council iu 1831, are about two hun-
dred feet outside of New Levee street; and all the land between
New Levee street and the new road and levee belongs, accord-
ing to the judgment rendered in this case, to the front pro-
prietors. The intervention of a public road between the front
tract and the river does not prevent accretion by alluvion, be-
cause the road and the levee themselves belong to the front pro-
648 MuNiciPAUTr No. 2 u Cotton Pbbss. [Lotuoaiia^
prietors, subject to the paUIo use: 6 Mart. 230;^ Sirejfor 1822,
pt. 2, p. 191.
It is true the publio has always possessed and used the levee
and the groond between it and the water's edge; and if the city
authorities, under whose administration sudi a right has been
enjoyed, had no other title but that which would result from the
presumed consent of the front proprietors, such enjoyment in the
presence of the latter might tend to show an acceptance on the part
of the public of a dedication to publio uses. But the law itself
gives to the public a right to such enjoyment independently of
the consent of the front proprietor, and such use is not legally
inconsistent with the ownership by the riparian proprietor.
Nothing therefore can be inferred hrom the public use of the
bank of the river and the land on the outside of the levee, and
the batture as fast as it forms. The city authorities have ihe
exclusive control of the levee and the banks of the river as a
part of the port of New Orleans. The principles which govern
in oases of dedication to public uses are considered as well set-
tled. They were recognized by the supreme court of the United
States in the case of The CUy of CincimuUi v. White's Lessee^ 6
Pet. 431, and were assumed by the present senior judge of this
court as the basis of his opinion in the case of De Armas et al,
V. The GiJty of New Orleans, 5 La. 148. " The law appUes to
it" (a dedication), says the court, *' those rules adapted to the
nature and circumstances of the case, and to carry into execu-
tion the intention and object of the grantor and to secure to the
public the benefit held out and expected to be derived from and
enjoyed by the dedication. That there was no particular form or
ceremony necessary in the dedication of land to public uses, and
that all that was required was the assent of the owner of the
land, and the fact of its being used for the public purposes in-
tended by the dedication." Tested by these principles I can
not find, in the case now before us, any evidence of an intention
on the part of Madame Delord or her successors, to dedicate the
front of her or their land to the public use.
But the principle that the intervention of a public road does
not cut off the right of alluvion, or in other words, that a tract
of land separated from the river by a public road is still con-
sidered as fronting on the river, and a riparian estate, has been
contested in this case on the ground that the land over which
the road runs was paid for by the ciiy in pursuance of the judg-
ment of this court in the case of Henderson et al, v. The CUy,
1. Mvrgtm ▼. JAvingiAom,
April, 1841.] MmaciPALmr No. 2 u Cotton PBssa 649
4Uid that consequentlj the city became the absolate proprietor
of the road.aiid levee, and front owner. Even supposing this
to be tme, which I am not disposed to admit, and that the road
opened under the ordinance of 1831, became by the judgment
of the court the absolute and irrevocable property of the ciij,
«till it is nothing more than a public road, viapMioa. This
court iQ the case of librgan ▼. Livingston,^ decided in the most
.explicit manner this question. The language of the court in
that case leaves no doubt upon that point, supported as the
principle is by unquestionable authority. The very point now
urged was considered and overruled. The court says:
** The bank passes with the field, even when there is an inter-
vening public road: Bipa cedit fundo, L Biparum, ff. rer.
-divis. Inst. eod. tit. Didt verum si via est media. Bip», re-
«pectu proprietatis sunt illomm, quorum prsBdiis hsarent, sed
•quid si via eeset in medio, inter flumen et agrum vel domum ?
Besponde idem ut BipsB sunt eomm. Osepola, etc. If there
be a public road between a field and the river, still that which
is made by alluvion accrues to the field. Si meum later agmm
•et fluvium inter jaceat publica via tamen meum fieri quod allu-
vie adjicit. Grotius, etc. Ghronovii, nota 68. But the defend-
4mf s counsel urges that this must be understood of a private
road, one of which the soil belongs to the owner of the field,
and is burdened with a right of way, and he refers us to the law,
Atticus, fif. 41, 1, 38, and to Grotius, who holds there is no
principle of natural law which justifies the position that the
owners of estates, separated by a public road from the river,
have a right to alluvion, and admits that the field has the allu-
vion, if it be a private one, which owes a road — qui viam de-
4>eiU: Grotius, etc. — so that the soil of the road be the property
of the riparious owner. The expression used by the writers
whom Grotius condemns, is via pyJblicay a public road. A pub-
lic road is that of which even the soil is public; it is not in a
public road as in a private road, the soil of which does not be-
long to the public, while we have only the right of walking and
-driving over it; the soil of a public road is public. Yiam pub-
Jicam eam dicimus cujus etiam solum publicum est, non sicuti
in privata via ita esse in publica accipimus; visd privatsa solum
alienum est. Jus tantum eundi et agendi nobis competit; vire
f^utem publicsB, solum publicum est: ff. 43, 8, 2, sec. 21. We
-conclude that in the present case the intervention of the public
road between the trapezium and the river, can not be con-
1. 6 Mart. 19.
650 MuNiciPALiTT No. 2 V. GoiTON Pbe&es. [LotusiaD^
Bideied as a proof of the intention of the parties to give the-
land conveyed another boundary than the river/'
I have copied this part of the opinion of the court in the case
of Morgan v. Livingston, not only because it is the language of
the court, expressing its deliberate judgment upon a leading
point in the case, which point is again made in the case now be*
fore us, but because it was written by the present senior judge, then
the organ of the court, in pronouncing its deciision. There is a
striking resemblance between this case and that above alluded
to, decided by the Oour Boyale of Lyon, and reported in Sirey
for 1829, 2d part. In that case the commune of Boqiies Inaisted
that the property of the defendants was separated from the
garonne by a public road {chemin communal), and consequently
the alluvial increase could not attach to it, although it might be^
otherwise if separated only by the towpath {ckemin de haiage),
because the latter is but a servitude imposed upon the riparian
property. But the court held otherwise, and relying upon the
same authorities from the Roman digest and institutes which
are quoted in the case of Morgan v. Livingston, decided that a
public road does not legally interrupt the adhesion between the
front lands and the river, which it separates, because the road
makes a part of the land itself, if not quoad proprietaiem, at least
quoad convmjodum et inoommodum.
This argoment is based upon the supposition that the new
road in front of the cotton-press, laid out under the ordinance of
1831, belongs to the municipality in full properly, or is a publia
road, and has been purchased from the front proprietors in pur-
suance of the judgment in the case of Henderson et al, v. Ihe GUy»
But there is no evidence in the record that such is the case.
That judgment proceeds upon the ground that the land over
which the new road was laid out belonged to the front proprie-
tors. The city was enjoined from proceeding to open the road
without paying an indemnity to the front proprietors, and the
injunction was maintained by the final judgment until the city
should pay that indemnity. Nothing further appears to have
been done. No expropriation has ever taken place, either
according to the mode pointed out by the code, or the act
of 1832, relative to the opening of streets. The judgment of
the district court, which was affirmed, was, *' that the injunction
be continued in force as relates to the making of the road, until
the defendants shall indemnify the plaintiflh for the damagea<
which the establishment of said road may cause them respect-
ively," etc. The court decided littie more than the abstraei
April, 1841.] MuNiciPALiTT No. 2 v. Cotton PBssa 651
qaestion of right, to wit, that the front proprietors, or those un*
der whom they hold, having already given one road, according
to the condition, express or implied, of the original grant, were
not bound to furnish anotiber vrithout indemnity. Surely that
judgment did not per se divest them of their title to the land
over which the road passes. Until the amoimt of indemnity
shall have been assessed, there is no price of the thing to be
forcibly sold, and the act of 1832 makes the payment of the in-
demnity or tencLer and refusal a condition precedent to the
divesting of the title. Until then the tide of the ancient pro-
prietors is unimpaired.
To conclude: Upon, a view of the whole matter which this
case presents, I am of opinion that the act of incorporation of
1806 did not and could not legally affect the right to alluvion,
which belonged to the original tract of land that afterwards
composed the faubourgs Sanlet and Delord. That each part of
it fronting on the river was still entitled to the right of accre-
tion, notwithstanding the act of incorporation. That the laying
out of the faubourg in 1806, according to the plan in the record,
viewed in connection with other acts of Madame Delord and of
the ciiy council, do not furnish legal evidence of a dedication to
public uses, and that the purchasers of front lots still remained
liparious owners. That urban property fronting on a water-
course is entitled to alluvion as well as rural estates; and that
cities can acquire jure aUuvionis only in virtue of a title which
would constitute tiiem front proprietors. That the defendants
must be considered as owning down to the road last laid out,
and that the intervention of the road does not in law prevent
their being regarded as front proprietors, and entitied to any
alluvion which now exists or may hereafter be formed be-
tween the levee and the water, subject to the public use under
the administration of the municipal authorities.
A majority of the court concurring in these views, it is ordered,
adjudged, and decreed, that the judgment of the parish court
be annulled, avoided, and reversed, and that ours be for the
defendants, with costs in both courts; reserving, however, to the
public the use of the levee; and of all the alluvion which existed
at the inception of this suit, or which now exists, or may hereafter
be formed between the levee and the river, to be administered
exclusively, and its use regulated, according to law, by the ciiy
council of the second mimicipality.
MoKFHT, J. The opinion just delivered by Judge Bullard sets
forth so fully and satisfactorily the views of the majority of this
652 MuNiciPALiTT No. 2 V. Ootton Press. [Louifflsna,,
court, on the Bevexal questions submitted in argument, that I
<Min not believe it neoessaiy for me to do more than to express
my entire oonourrence in them.
SncoHy J. I have carefully considered the opinion which
Judge Bullard has prepared; it expresses so fully my ideas upon
the important questions which this case presents, that I deem it
sufficient to state that the oondusion to which he has arrived
appears to me correct on all the grounds therein assumed; and
that I perfectly concur with him in the opinion and judgment
which he has just pronounced.
Gablahd, J. Ooncurring generally in the reasoning of the
learned judge who has deliyered the opinion of the court, and
fullyin tiie judgment, I will give a few of the reasons upon which
my judgment is based. It is the unanimous opinion of the court,
as I have always understood, that previous to the act of the sev-
enteenth of February, 1805, inoorporating the city of New
Orleans, the plantation of Madame Delordwas a riparian estate,
and entitled to the alluvion in front of it. It is also agreed, that
that act of the legislature did not, in any manner, affect her title
to the property, or interfere with her right to enjoy it. U,
therefore, any change has taken place in the title or right of en-
joyment, either by her or those who hold under her, it must be
in consequence of some act of her or them. What is the act that
changes the tenure by which the property is held, or deprives
them of that provision of the constitution which says, *' nor shall
private property be taken for public use, vrithout just compensa-
tion r
In February, 1806, Madame Delord laid out a portion of her
plantation into lots, extending the streets that previously existed
in the faubourg St. Mary, running parallel with the river and
giving them the same names, and laying out new streets at right
angles (or nearly so) with them, giving them new names. Tchou-
pitoulas street was then the public road alongside the levee,
which was a servitude on the land, and she in laying out the
lots, left it as a street, and between it and the edge of the water
on the batture, laid out a range of squares, subdivided into lots,
having New Levee street in front, between which and the water's
edge, there was left an open space extending along the whole
front, on which not a word was written nor is anything said
about the use of it, nor to whom it belongs. In the rear of the
lots a large space is left in the same manner. The strip in
front, which has been much increased by alluvion, is the subject
April, 1841.] Municipality No. 2 v. Cotton PsEsa 653
of controTersy. Now did the mere act of laying off the land
into lots change her title or right of enjoying it in the mode pre-
scribed by law? I suppose it did not of itself, because if she
had the next month destroyed her plan, and again planted
cotton or cane on the land, die could have done so, and no one
would have any claim to the lots or the streets, or any right to
disturb her in the enjoyment of the whole property. Then what
deprived her of her right to dose up the streets, and deprive the
public of the use of them ? It was, in my opinion, because she
sold the lots, and held out to the purchasers by the plan a right
of way, specially mentioned, which they and their successors
have a right to use as long as they are proixrietors of the prop-
erly.
What the presiding judge of this court said in the case of
Morgan t. Livingston^ 6 Mart. 286, in relation to Bertrand
Giavier, his plan and its effects, has been repeated verbatim in
the opinion just read. If that be true, as to Bertrand Giavier
and Poeyfarre, and those holding under them, why is it not so
in relation to Madame Ddord, Larcheveque and Duplantier, and
those holding under them? The sale from Madame Delord to
Larcheveque is so nearly similar to that of Gravier to Poey&rre,
as to approach identity. A perusal of the whole of this case,
will show that the majority of the court are not about to depart
as far from the principles, upon which it was dedded, as some
of those who aided in establishing them. I am not one of those
who hold, that the right of alluvion is based ezdudvdy on the
prindple of being subject to the expense and burden of keeping
up roads and levees. The Boman jurists say, it is a mode of ac-
quiring property by natural law, and comes from the maxim,
it is " just the advantages of a thing diould bdong to him, who
supports its disadvantages." Therefore, says a French writer,
*' nothing is more just than that a proprietor, to whom a stream
has often borne prejudice, should have, to the exdudon of all
others, when it becomes beneficent, a gift, less a present than
an exchange:" 4 Nouv. Diction, de Brillon, 278. The learned
chief of this court has said, " The right of increase by alluvion
is grounded on the maxim of law, which bestows the profit and
advantages of a thing upon him who is exposed to suffer its
damages and losses:" 6 Mart. 243.^ Boads and levees have
nothing to do with the right to alluvion; it is the liability to
lose a portion of the land by the abrasion of the waters*
that gives the benefit, and a man is as much entitled to the
1. Morgan r. Livingston,
664 Municipality No. 2 v. Cotton Press. [Louisiani^.
•llnTion formed in a riyer, on the banks of whicli there ia
neither road nor levee, as he, who is on a river that has both.
A good deal has been said in argoxnentabout urban and rand
property. If by this, it is meant that there is a difference be-
tween the tenure, by which property is held in a city, from that
in the country, I have not been able to see it. I understand
something about urban and rural servitudes and uses; but they
differ essentially from the titles by which property is held, and
I know of no law by which these accessories or burdens can ipso
/acU) deprive a person of title.
But it is said that Madame Delord when she left the strip of
batture in front of her lots, intended to give it to the public,
and that, although she said not a word about it on her plan, yet
it is dedicated to public uses. This is a matter of fact, and let
us examine it. She does not say, either verbally or in writing,
it was her intention to give it. She certainly knew she had a
right to the batture in front of her property, as a number of
squares were laid out on it, and the levee was not made in front of
them tmtil some time after, when it was made at the expense of
the front proprietors. Can any one believe, it was her intention
to give this batture to the public, when she was daily selling it?
In lees than ninety days after she made her plan, die sold lots
on the batture to Saulet and Larche; in these sales she specifies,
they are to keep up the road and levee, and she abandons to
each of them all her pretensions to the river (elle se desiaie de
iotdea pretentions sur le flewve). In the sale to Duplantier she
is very explicit. The sale is for seven arpents, "face aujleuve,
et I'autre partie a la grande route dee TchoupUotdas^" together
with " tou8 lee droits de proprieU qu'eUe a et peut avoir sur la dUe
habitation" I think, my learned colleague will admit, that
when a person has a property that will sell readily at good
prices, and is actually selling, it is not a strong presumption of
an intention to make a donation to the public.
But it is said, the plan is a sufficient dedication, and the plan of
the square of the city is constantly referred to, as if it was similar.
If the words quay, port, public square, or anything indicative
of an intention to give were on the plan, and the public had
used the ground, I should say, it was a sufficient dedication;
but there is nothing of the kind shown. The case of TJie City
of Cincinnati v. The Lessee of White, 6 Pet. 432, is much relied
on, and is said to sustain this dedication. That case is not,
in my opinion, understood either as to the facts or the real
points decided. It does not appear positively, what words were
April, 1841,] MuNiciPALiiT No. 2 v. Cotton Pbess. 655
used to prove a dedication. My colleague says, none. I ihink
'differently. The court says: ''A plan was made and approved
of by all the proprietors; and, according to it, the ground lying
between Front street and the river, was set apart as a common,
ior the use and benefit of the town forever; reserving only the
right of a ferry; and no lots were laid out on the land thus
dedicated as a common. '^ The language used by the court
proves something was written on the plan, otherwise how could
{he right to a ferry landing have been reserved? On page 440
the court again says: ^* In the present case there having been an
actual dedication fully proved, a continued assent will be pre-
sumed, until a dissent is shown." Full proof, I think, means
something more than a blank space on the plan. But the real
questions in the case were not, whether the plan did not exhibit
a dedication, but whether it must not be proved by a deed in
the same form, as was necessary to convey titie; and also, if
there had been a deed, if the grant was not void, the proprietors
not having the legal, but only equitable titie to the land; and
there being no grantee in existence to accept it, the city not
being incorporated when it was laid out. The court held
neither a deed nor a grantee was necessaiy, and said: ** No par-
ticular form or ceremony is necessary in the dedication of land
to public use. All that is required, is the assent of the owner
of the land, and the fact of its being used for the purposes in-
tended by the appropriation.'' I agree most cordially to all
this, and if the assent of Madame Delord or those holding under
her, was shown, I should conform my judgment to it
It is said this assent has been shown by the notorious public
use of the ground for thirty-five years. Where the evidence of
the notorious use for that space of time is to be found I am un-
able to discover. It is certainly not in the record. For some
time after the lots were laid off it is not probable much business
was transacted in that quarter; the levee was used there, it is to
be supposed, as at other places near the city. More reoentiy,
the evidence shows the city did not keep up the road or levee
but compelled the front proprietors to do it. The people there
were not considered in the incorporated limits of the city until
1831. The record is full of evidence showing that the levee and
batture were appropriated to private purposes, covered with
sawmills, woodyards, sheds to make shingles under, and shops
of various descriptions. Pilie, a witness, says he never saw a
place so incumbered, he had great difficulty in passing along,
und so indefensible did the corporation in 1880 regsjxl their
656 MxTNidPALiTT No. 2 t;. Cotton Pbsss. [Loniftiana^
pretensions, or so powerless -was it to enforce them, that the
legislature had to pass a law to enable the mayor to remoTe the
obstructions. The eocecution of this law gave rise to the suit of
Benderson et al, v. The Mayor^ etc,^ 3 La. 663; 5 Id. 416; on
the second trial of which case, the corporation admitted in iba
record, that the plaintiffs were the owners and proprietors of
the lots and of the batture also.
The admissions made by the attorney of the corporation in
that case, it is now said, are not binding, as he had no right to
make them. His want of authority has not been shown to my
satisfaction, and I know no reason why the regularly appointed
attorney of a corporation can not make admissions as weU aa
the attorneys of individuals, and why they should not be as
binding on the principal. Oorporations have no higher privileges
or rights than citizens unless specially granted, and are espe-
cially bound by the acts of their agents, as they can not be
bound in any other manner. It is to me rather a curious doc<
trine that the corporation can constitute itself the champion of
the public, to vindicate or assert its rights, and its acts can the next
moment be repudiated. If the admissions made were null, why
were they not so declared at the time? We are informed the
decision of the case was based on them. If so, they were valid,
and being valid then, are equally so now, unless shovni to have
been made in error or fraud. I do not recognize the existence
of a tyrant public which no law can bind, that can assert a
right to the property of a citizen and deprive him of it by its
ipse dixit at pleasure, under the plea of necessity or the public
good. The doctrine bears the impress of another sphere and haa
its origin in imperial Rome, or in the benighted days of France
and Sx)ain. But if the public is so far above all law, it does not
prove its agents and champions are so; and corporations can not
by assuming or usurping the exercise of the powers of the
sovereign relieve themselves from their proper responsibility.
They can not, under the pretext that their creator has been
slumbering for years, suddenly arouse him and make him rude-
ly seize upon the property of the citizen in lus first vraking
moments. I concede that if it were shown the admissions werfr
made in gross error and fraud, they would be void; but there
must be some stronger evidence of this, than the mere &ct thai
they are prejudicial to the claims of the plaintiff.
It is not denied that if a tract of huid owes a road to tht
public, being one of the servitudes imposed by the grantor,
that the alluvion belongs to the proprietor, but, it is said, if tlii»
April, 1841.] MuNiciPALiTT No. 2 v. Cotton Pbess. 657
proprietor of his own aooord give a road, or one is taken from
him hj expropriation, nnder the acts of the legislature of 1818
relative to roads, and that of 1882 relatiye to streets in this
city, that then he is not entitled to the alluyion that may be
formed on the other side of the road. I have sought in vain
for any good reason for this distinction. No man is presumed
to give without compensation, and when for public purposes
private property is appropriated, no more, is taken than is nee-
essaxy for the purpose intended and stated. I should rather hear
a good common-sense reason given for such a distinction than
the citation of a disputable case from a foreign tribunal. It is
further contended Ihat the place in front of this property is a
part of the port of the cily, and being so, the whole bank of
the river is public property. To this it may be replied, it was
not a part of the port in 1806, nor was it so until a number of
years after, any more than the river is a port at other places.
Port, with us, has a definite meaning, and that of New Orleans
specific boundaries, and it was not until 1821 that the legisla-
ture extended it to the place in controversy. Afterwards con-
gress extended it to the limits of the three municipalities: 3
Moreau's Dig. 269; 9 U. S. L. 693. I am not aware of the
law which says, when the legislature extends the port of a city,
that the dtizens thereby are deprived of their rights to their
properly. I have no apprehension that the city will be cut off
from the river by an increase of the batture, and if there is one
mode more effective than another by which such an apprehen-
sion is to be realized, it is by placing hora de commerce, a large
space in its front which could not be disposed of, except by the
legiskture or congress.
The code specifies the rights, privileges, and uses to which
the public are entitled upon the shores and banks of rivers^
and in the ports and harbors, and I am disposed to give full
effect to them. As long as the public has need of the use of the
bank of the river, the levee and batture in front of it for the
convenience of the citizens and for commercial purposes, I
think it is entitled to such use, and the municipaliiy ihe right
to the administration; the soil remaining in the proprietors and
owners of the front lots. Whenever the space shall become so
large as not to be wanting for public use, the law provides a
mode for extending the levee and putting the owners in posses-
sion: La. Code, arts.
I am therefore of opinion that the judgment of the parish
court should be reversed so far as stated in the judgment, or-
Ax. Dxo. Vol. XXXVI--A3
668 FUETTAS V. PoNTCHABTRAiN R R Oo. pLoiiisiaxuife
dered to be zeoordddy and the rights of the paxties must be ve^-
nlated by it.
Martin, J., diMcnted. His oonolaiioiw may be flammed up in hia Ofwn Iuh
goege M foQowB: " Upon the whole matter, therefora, I have oooie to the
eonolttiion; 1. That the foonden of a city or &aboiiig on the banka of a naT-
igable river do^ by the phm and the acta of aale of Iota in aooordanoe there-
with, make a dedioation of all the land within the limita of anoh oity or
faaboorg which ia not l^ the plan reaerred for the pmpoaea of lola to be aold;
and eapeoially of all andi parta of the land of which the public have the nae-
fol domain, and which are fwawitial to the proaperity of a city or fanboozg ao
aitoated, to wit, the atreeta and bank of the riTer; and that the attempt on
the part of the defeodaati, aarigna of the origtnal foonden, to reanme a part
of the land ao dedicated and abandoned, ia a yiolation of the contract zi^ta
of the porohaaera of lota and of the public, and tenda to impair the original
oontraotb 2. That the fonndere of a aeaport city or fanboorg, on the banka
of a navigable river, do^ by the plan of the city or foaboorg bo foonded, intend
to create a port, and that the river and the land adjoining the river in front ol
anch city or fanboarg, neoeaaary for the puxpoaea of lading and unlading mar-
chandiae and of commerce in general, conatiitnte the port, which ia Iocim jm^-
lietM, and that the deatination and dedication of land ao aitnated ia eapeoially
to be preaumed, aa well from the plan aa from the intention to found inch city
or faubourg, and ia clearly evidenced in the preeent caae. 3. l%at the levee
or bank of the river being an acceaaory to the principal eatate, can not be
aeparated from it by any act or intention of partiea. 4. That alluvion
formed in a port partakea of ita nature, and of that of the atreet immediately
along the river ia locuapMicuB, kort de commerce^ and doea not belong to the
ownera of the front or of any other lota in the city. 5. That the corporatioiii
of the city having atood by and permitted individuala to expend large auma
of money> and make pnrchaaea of the property in diapute, and in aome meaa-
ure reoogniaed their righta, the latter have acquired an equitable title thereto
and ought not now to be disturbed; but the righta of the public aa to what ia
not in tiie actual poeaeaalon of the defendanta muat not be affected l^ the
judgmenta which they have obtained.'*
Theae conduaiona amount to thia, that in hia opinion the evidence of ded-
ication waa sufficient, and that if not, the intervention between an eatate and
the river of a public road or street, which, if waahed away by the encroach-
ment of the river, muat be replaced, not by the owner of the adjoining tract,
but at the ezpenae of the pubUc, gives the latter a right to the increaae by
alluvion, because in auch a caae, they, and not the proprietor of the adjoining
tract, are the ones on whom faUa iJie burden of loaaea rendered poaaible by
the vicinity of the river.
Bight to Alluyiok: See Hagaa v. Ocunphdlt 33 Am. Dec 287, and aoli^
hi which the subject ia diacussed at length.
Flettas v. Pontohabtbaix R R Go.
[18 LODXUAHJt, 839.]
OoMTBiBUTORT Neglioencb ON THE Pakt OF A PEBSON Injitrsd by a rail-
road train bars the right to any action for the injury sustained.
Afpbal from a judgment by which plaintifGs leooTered the
May, 1841.] Flettas v. Pontchabtrain R R Co. 659
Talue of a slave crashed by a locomotiYe belonging to defend-
ant. The other facts apjtear from the opinion.
BaseUus, for the plaintiflF.
Hoa and Eustvf, contra.
By Court, Mabtin, J. The defendants are appellants from a
judgment by which the plaintiff has recovered the sum of fifteen
hundred dollars, the value of a slave, crushed by one of their
locomotive engines, while he was lying across their railroad,
asleep, intoxicated, or in a fit of epilepsy or other disease. The
testimony does not show that the engineer did not act with due
•care. He discovered the slave about two minutes before the
•catastrophe happened; and the chief engineer of the Carrollton
railroad has testified that in ordinaxy circumstances, a loco-
motive engine with a train of cars, such as were drawn at the
time, may be taken up in half a minute. On the other hand, it
is not shown that the slave labored under any disease; and
therefore if he fell asleep on the road, he was guilty of great
neglect; and if he was disabled from taking care of himself by
intoxication, his owner can not expect compensation for him:
See the case of Leasepa v. Ponicharirain BaHroad Company ^ re-
<5ently decided, 17 La. 861.
The defendant's witnesses were mostly persons who were
passengers in the train, and had the best opportunity to give
information, as they were ^e-witneeses. Those of the plaintiff
were not present, but some of them came soon afterwards.
The testimony, in our opinion, preponderates in favor of the de-
fendants. In cases like the present, where the accident may be
attributed to the fault or neglect of both parties, the plaintiff
can not recover. In the case of a collision between two vessels.
Lord Tenterden, C. J., says, in summing up the case to the
jury: " The question is, whether you think the accident was oc-
casioned by want of care on the part of the crew of the Bobert
and Ann (ihe defendant's vessel). If there was want of care on
both sides, the plaintiflFs can not Tnaintain their action; to enable
them to do so, the action must be attributable entirely to the fault
of the defendants:" 1 Moo. & M. 169;^ or 22 Eng. Com. L. 280.
It is therefore ordered, adjudged, and decreed, that the judg-
ment of the district court be annulled, avoided, and reversed;
and that ours be for the defendants, with costs in both courts.
CoNTBiB(7TORT Neolioenck: See Washburn v. Tmcy, 15 Am. Deo. 661;
Bush V. Brainard, 13 Id. 513; S.nUhv. Smith, Id. 464; HcuifiM v. Roper^ 34
Id. 273, and cases cited iu the note thereto.
1. TunderoUui^ t. MUUr; 8. 0., 22 Eng. Oom. L. 498.
660 Cbockeb v. Monross. [Loiiiffiana,
GbOOKEB V. MOKBOSE.
[18 LOUIKASA, 608.]
Iv A Pawv is Lost thx Plxdokb gak not Re(x>vx& on thb Dkbt for whieb
tl •tood M seoarity, withoat showing thai the loss wm in no wise attrib-
vtiJ)le to any want of neoeBaaiy oare and diligance upon his part.
Thb opinion states the case.
Ehoyn^ for the plaintifiF.
Sevier^ ccmJtra,
By Ooiirt» Sxhon, J. This suit "was institated on a wzitten
mstniment subscribed by the defendant's infe, in the following
words: '' BeceiTed, New Orleans, 81st October, 1887, of Eliaha
Orocker, three hundred and twelve dollars, to be repaid in sixty
days from this date, and, as a collateral security for the repay-
ment, I do hereby place into his hands the following artidee,
vis.: one pair diamond eairings, two diamond rings, one
diamond breast-pin, one pair of gold buddes, one pair of gold
ear-rings, with breast-pin. Signed, F. Monrose." Plaintifl
also represents that the articles therein mentioned were in his
house, safely deposited with money and other valuables belong-
ing to him; that said house was, during his absence, totally con-
sumed by fire, and that said fire was not to be ascribed to any
firalt of his, or of any of his agents, and was the result of inevit-
able accident. He further states that the money was borrowed
by defendant through the agency of his wife, who was authariBed
by him, and whose acts he has approved; that the sum loaned
was applied to the defendant's own purposes, and that said de-
fendant's wife is in the habit of transacting a great part of his
business.
The defendant first pleaded the geneiai issue, and further
averred, that the jewels were of the t alue of six hundred dollars;
that they were deposited icir the repayment of three hundred
and twelve dollars, loaned to his wife; that he never authorized
his said wife to borrow said money, and give the receipt or obli-
gation annexed to plaintiff's petition. He also alleged, that a
long time previous to the institution of this suit, he tendered to
the plaintiff, at lus domicile, and in the presence of witnesses, the
amount of the money loaned, with interest, and demanded the
delivery of the jewels, but that plaintiff refused to deliver the
same; that he made repeated demands at different periods to the
same effect; and notified plaintiff of his readiness to repay at
any time the said sum of money, with interest, on his. delivering
May, 1841.] Cbogkeb v. Monrose. 661
the jewels, holding said plaintiff lesponsilile for the Talue of the
same, to the amount of six hundred dollars, which he pleads in
xeoonyention. He prays judgment accordingly. There was
judgment below against plaintiff, and in fxvot of the defendant,
with costs of suit; from which judgment the plaintiff appealed.
The only eyidenoe adduced in this case, except the production
of the receipt sued on, is relative to the destruction by fire of
the defendant's jewels, and it is Teiy loose and unsatirfactoiy.
One of the witnesses shows, that plaintiff's house was burned
down; that the fire was sudden and rapid; and that some
pieces of metal which were white and hard, were picked up
among the ruins. The other witness proves, that he was living
at plaintiff's house at the time of the fire; that he saw a box in
the house containing jewels, which box was put on the top of
an armoir; that plaintiff took down the box, took out some
Bpede, and put some back again in it; that a day or two before
going away, the plaintiff took the jewels out of the box, and put
them back again, and then put the box on the top of the
armoir; that the box was burned with the fire; that he saw the
pieces after the fire, found some metal melted up which was
supposed to be the jewels, and that he has evexy reason to
believe that said jewels were in the box when the house burned
up. With this unsatisfactoiy evidence, it seems to us that this
case is not in such a condition as so enable us to decide upon
the rights or liabilities of the parties, and that neither of them
is entitled to any judgment at our hands. The plaintiff has
adduced no proof of the authorization of the wife by the de-
fendant, nor has he suffioientiy established the other allegations
contained in hia petition, upon which he seeks to make the de-
fendant liable, and to free himself from the obligation of restor-
ing the pledge.
. It is true, that according to the article 8184 of the Louisiana
code, the pledgee is only answerable for the loss or decay of the
pledge which may happen through his fault; and that under the
article 1902, his principal obligation is to take all the care of
the thing pledged that could be expected from a prudent ad-
ministrator; this role being subject, however, to further restric-
tions or modifications. But here the evidence does not satisfy
us, that the very jewels in question were destroyed 1^ the fixe
of the plaintiff's house during his absence, as by him alleged;
that they are not in any manner identified; and if they were the
same, it is not shown tiiat any degree of care and diligence has
been used to save and preserve them. If, with regard to the
662 Russell u Favier. [Louisiaiui
pledgor, he can not retake the objects pawned without paying
the whole amount of the debt in principal and interest; on th&
part of the pledgee, the restoration of the pledge is a condition
without which a recovery can not be had; they must take place-
simultaneously; and in order to be discharged from this obliga-
tion, the pledgee must show not only that the thing pledged is
lost or destroyed, but also that he unsuccessfully used all
necessaxy care and diligence to presenre it.
This makes it unnecessaiy to inquire into the legal eSeat of
the offer made by the defendant to pay the amount of the loan,
as even supposing that his (said defendant's) allegations could \»
considered as a sufEcient ratification of the act of his wife, the
ylaintiff, from the insuffidenoy of his evidenoe* would not be-
entitled to a judgment.
As to the reoonTentional demand set up by the defendant, there^
18 no proof whaterer of the yalue of the jewels; and were we
ready to say that the objects pawned belonged to him, and thai
he has a right of reooTering them, or their Talue, we should be
without any criterion upon which our judgment could be based.
With this view of the case, we thiok that the judgment appealed
from, so far as it allows nothing to either of the parties, is cor-
rect, but that it ought to hare been limited to a mere judgment
of nonsuit.
It is therefore ordered, adjudged, and decreed that the judg-
ment of the district court be affirmed, with costs, and that the
same be so modified as to have only the effect of a nonsuii.
RTJSSELIi V. FaVIEB.
[18 LouniAiu, 086.]
Bnaok ov I'sbsohal Piu>pkbty oak not vt a Salb tiuno^ tiioa^ to ^
pnrohaMr in good faith, pass the title.
Tbb opinion states the case.
Peyton, for the plaintiff.
Eda and Benjamin, contra.
By Court, Qablakd, J. The plaintiff claims a n^gro girl a»
his property, which he alleges is in the possession of the de*
fendant, Madame Favier, who sets up title to her. The latter
denies the plaintiff has any right to the slave, and further saya
she purchased her in good faith for a valuable consideration of
Yeill, who warranted the title, and he was cited to defend it»
June, 1841.] Bushell v. Fayieb. 663
He answers, that he ptiTchased the slave for a Talnable con-
fiidezation and in good faith; he denies defendant's title, and
says, if he ever had any, it has been divested. The evidence
establishes conclusively, that the girl Lydia was bom on the
plantation of the plaintiff, in the state of Yiiginia, of a female
slave that belonged to him. In the latter part of the year 1836,
he brought this girl with a number of other slaves to Yicks-
burg, in the state of Mississippi, for the purpose of hiring them
out. He refused to sell them, though ojSered a high price.
The slaves were hired out at the commencement of each year,
and the plaintiff annually visited the state for the purpose of
receiving their hire. He had an agent in Yicksbnrg, who at-
tended to his business in his absence. In January, 1838, the
girl was hired to one J. D. Bruner, who in the month
of April following took her to Natchez, and after offering her
for sale privately at different times, finally had her sold at auc-
tion, when Yeill became the purchaser, brought her to New Or-
leans, and sold her to the defendant, with a full guaranty, with-
out notice of any fraud. The counsel for Yeill, the warrantor,
rests his defense principally on the ground, that slaves are, by
the law of Mississippi, movable property, that possession is
prima fade evidence of title, and as it is proved that Bruner
came lawfully into the possession of the slave by hiring her,
his subsequent bad faith and fraudulent conduct towards the
real owner, ought not to affect the property in the hands of an
izmocent purchaser for a valuable consideration. He has called
our attention to the distinction between the felonious and fraud-
ulent acquisition of property, and the difference it makes in the
rights of a third person, and from the earnestness with which
he pressed on us the opinion of one of the dissenting members
of the court of errors in New York, in the case of Hoffman v.
Carow, 22 Wend. 285, it would seem he was desirous of
abolishing that distinction.
Upon a full examination of all the cases and principles settled
in the United States and other countries, we think the correct
doctrine has been laid down by Chief Justice Savage, in the
case Andrew v. Dieterich, 14 Wend. 34. He says, if goods are
taken feloniously, no title is acquired by the felon, and he can
convey none to a bonajide purchaser; but where the vendor has
delivered possession of his goods, with the intent not only
that the possession, but the property shall pass, a bona fide pur-
chaser from a fraudulet vendee, shall hold the goods in prefer-
ence to the original owner. The reason is, that the original
664 Russell v. Fayieb. [Louisiana.
owner, by putting his goods in the hands of the fraudulent ven-
dee, has reposed confidence in him, and has enabled him to
commit a fraud; therefore the equity of the original owner is
not equal to that of the person who has bona ftde parted with
his money or property in the purchase of such goods. The
original vendor, by his imprudence, enabled the fraudulent
vendee to defraud some one, and should himself be the sufferer
rather than a third person, who must otherwise be defrauded:
8 Cow. 238;' 6 T. R. 176;« 13 Wend. 570.»
In this case it is evident that Russell had no intention of
passing the right of property in the slave in oontroveray to Bru-
ner, by hiring her to him. He only intended to give a tempo-
rary possession, and the subsequent bad faith of the lessee does
not deprive the owner of his right of property. The Louisiana
code, article 8476, says, that a possession of a movable property
for three years, which had been bought at auction or of a third
person in the habit of selling such things, will enable the pos-
sessor to hold it against the real owner, unless he return the
price the possessor gave for it, but this rule, we apprehend, is
not applicable to slaves. The case of Barftdd v. Hewlett, 4 La.
120, is vezy similar to this. In that case the plaintiff established
his title; it was admitted the defendant had purchased the
slaves at auction, and took Harraldson's bill of sale. The
slaves had been delivered to Harraldson in Tennessee, to be
taken to Attakapas or Opelousas, with written instructions to
hire them out. Harraldson brought them to New Orleans,
where he publicly offered them for sale, and finally put them up
at auction. The coiurt said, it is clear the defendant acquired
no title, his vendor having none himself, nor authority to con-
vey any.
The judgment of the district coiurt is therefore affirmed so far
as it relates to the plaintiff Russell and the defendant Madame
Favier; but in relation to the portion of it between the defend-
ant and Yeill, her warrantor, it is ordered that said judgment be
amended so, that she recover of him five hundred and thirfy
dollars, with interest at the rate of five per centum per annum,
from the second of February, in the year 1839, until paid, and
the costs of this suit and the costs of this appeal.
PuBCHASS FBOM Okb Who HAS NO TiTLX, thoug^ in good faith, panes no
title as against the real owner; SaUua v. Everett^ 32 Am. Dec. 540, and notd
to that case. See also note to WUUama v. Merle, 26 Id. 605.
1. Mowreif t. WdUK, 9. Parker t. Palriek
8. Rod T. JWndk; 8. C. 28 Am. Deo. 488.
June, 1841.] Poweb v. Ocean Ins. Oo 666
PoWiSB V. OOEAN InSUBANOB GoMPANT.
[19 LoumAMA, 28.]
CoHDmoM ur Poucnr of iNSUBikMOB, that a transfer, if made withoat tfaa
ooneent of the uumrers, shall render the polioy void, relates to oonvey-
ances by which the interest of the insnxed is abaolntely and permanently
divested.
Fouor IS NOT Atoidid sr a Sau ov ths Insubbd Pbofbbtt, when, before
the happening of the Iom, the property had reverted to the oiigisal
owner, by reason of the vendee's failore to pay the parohase prioe as
agreed by the terms of the sale.
OoMDinoNAL Saub OF Ihsxtbed Pbofxbtt suspends the risk during the exist-
enoe of the condition, but the reversion of the property to the vendor
upon the failnre of the condition revives the risk, and entities the Tsndor
to all the rights possessed by him before the property was transferred.
Appxal. The opinion states the facts.
O. M. and F. B, Conrad, for the defendants.
Bo9eliuB, for the plaintiff.
By Oourt, MbsPHr, J. The plaintiff seeks to recover one
tfaonsand two hundred and fifty-seven dollars and twenty-fiye
cents tinder a policsy wherein defendants insured her against fire
to the amount of three thousand dollars, on household fumi'
tore, liquors, bar-room fixtures, and billiard tables contained in
a building situate at the comer of Champs Elysee and Levee
streets, for one year from the second of December, 1837. The
record shows that after the date of the policy the property insured
was sold to one XJrsin Frederick and remained in his possession
about six months, but that before the happening of the loss, the
property reverted back to the plaintiff in consequence of the
Tendee's failure to pay for the same; and that plaintiff continued
in the exclusive possession of it as owner until, within the term
covered by the policy, it was damaged by fire. The policy under
which the plaintiff claims contains the following clause: " The
interest of the insured in the policy is not assignable unless by
consent of this corporation, manifested in writing; and in case of
any transfer or termination of the interest of the insured, either
by sale or otherwise, without such consent, this policy shall from
thenceforth be void and of no effect." It is contended that from
the very terms of this clause, the policy became absolutely void
from the day of the sale to Frederick, and that it could be re-
vived by no subsequent event.
The decision of this case must rest on the meaning and effect
to be given to the foregoing clause inserted in the policy. It
666 Power v. Ocean Ins. Ca [Louisiana^
seems to ns ihat its object was to render certain, 1^ positiye
stipnlation, that which otherwise would have depended upon
general principles and judicial decisions, to wit, that the poli-
cies of the company should not be obligatoxy any longer than
the property insured continued in the individual named in the
policy as owner, and that by the transfer of his interest the
policsy should be void; fraudulent claims upon fire officers have
been so frequent that the character of the party proposing U} in-
sure has been deemed a matter of importance, and clauses re-
sembling the one under consideration, are now generally to be
found in all pdlicies of insurance. It is believed that the nul-
lity they pronotmce or imply, according to the terms used, i»
generally understood as relating to cases where the insured has
absolutdy and permanently divested nimseTf of all interest in
the subject-matter of the insurance; being then without any in-
terest at the time of the loss, the insured has sustained no injury,
and the person to wbom a transfer is made without the consent
of the underwriters can not recover, because he is not a parly to
the contract; thus the policy becomes inoperative and void; but
the question here is whether it continues to be inefieotual when
at the time of the loss the property is in the assured as it was at
the time of the assurance.
This policy was clearly intended to cover and did cover any
furniture, liquors, fixtures, etc., which plaintiff might have
in the house at any time during the continuance of the risk, not
beyond the amount actually insured; if these articles had been
partially and successively sold and replaced by others, or even if
plaintiff had thought proper to provide for her bar-room an en-
tire new set of the same articles, and a fire had taken place, the
underwriters could hardly have pretended, under the clause in
question, that they were absolved from the obligation to indem-
nify; for their undertaking was to insure her from loss against
fire, not on the identical effects existing at the time of the insur-
ance, but on effects or articles of the same description that she
might have in her establishment within the term covered by the
policy. If notwithstanding such a partial or total sale of the
effects insured, the policy would continue to be effectual on ac-
count of the subsisting interest of the insured at the time of the
loss, there is no good reason why it should not 1)6 so in the
present case; by the effect of the implied resolutory clause in her
sale on credit to Frederick, plaintiff was restored to the posses-
sion and ownership of the property, as if no sale or transfer
had taken place; her interest which had been parted with only on
June, 1841.] Caldwixl u Westebk M. & F. Ina Co. 667
condition of her being paid the prioe can not be said to haye ab-
solutely terminated; dnring the time Frederick owned the efiEects,
there was, it is true, a suspension of the risk, such as would
have taken place had they been temporarily removed from the
premises, but the risk reviYed as soon as the property reverted
back to plaintiff. Of this the defendants can not complain^ be*
cause their liability was thereby diminished.
It is sufficient if the insured has an interest or property in the
subject-matter of the insurance at the time of insoring and at the
time the fire happens. The nulliiy mentioned in the clause re-
lied on by defendants was, in our opinion, intended and under-
stood by the parties for the case where, by sale or otherwise, an
absolute transfer or termination of the interest of the insured
should take place so as to leave him without interest at the time
of the loss; the stipulation was intended to protect the tmder-
writers from risks they did not choose voltmtarily to assume, and
to prevent the insured from substituting to himself another per-
son without their consent: La. Code, arts. 2040, 2687, 2642; 1
Ph. Ins. 84; 8 Me. 46; Lms v. Jfiirin^ Jfuiual F\ire Ins. Oo.^
It is therefore ordered that the judgment of the parish court
be affirmed, with costs.
Pbovisxoh aoainbt Alzeratioh Dr ▲ PoLior or Inbuilahoi deolaring thai
a oonTeyanoe of the premitea shall defeat the policy, does not apply to a oon-
vejranoe l^ way of mortgage: JaekBom ▼. JfoM. Jf. F, Co., 84 Am. Deo. 60»
the note to which refon to other oaaea on thia aabjeot.
Caldwell v. Western Marine and Fire Inel Go»
[19 LoiJlllAliiL, 43.1
OoMPBTiBT Ceiw IB Ebbxmtial TO THX SxAWOBTmNiss of an insored TesMl,
and if not provided at the oommenoement of the riak will ocmatitate a
groond for avoiding the policy.
Wabbautt of Siawobthiki8B is not Bboksn by the occasional absence of
a seaman or deck-haod upon other duties connected with the Voyage, aa
to procure water or provisions, especially when his presence at his poet
of duty would not have prevented a particular loss by accident
8ali ov VxasxL Ain> Oaboo Damagxd bt Aocidsnt is justified only in
case of urgent necessity, and after the master has employed due diUgenoe
to discover whether other available means of saving either were within
his reach.
Dub DnjoxsrcB m Such Gasb depends upon the facts. The master is in-
vested with a discretion depending upon the circumstances, and if it
appear that he exercised this power witli ordinary good judgment^
ness, and promptitude, the necessity of the sale will be presumed.
668 Caldwell u Western K & F. Ins. Ck>. [Looisianak
Appbal. The opinion states the fads.
Pmfion and Jones^ for the plaintifb.
Maii^nn and Ohrymes^ for the defendants.
By Court, Gabland, J. This action is faronght on an open
policy of insuianoe, taken by LaMbeth & Thompson, for the
benefit of whom it may concern, upon tobacco shipped on flat-
boats, from any point or landing on the Ohio river, or its
tributaries, directly or indirectly, consigned to them in New
Orleans. In January, 1838, the plaintifls shipped on a flatboat,
from a warehouse on Oreen river, in Kentucky, siziy-one hogs-
heads of tobacco, consigned to Lambeth h Thompson, which,
it is alleged, are included in the policy at the rate of sixty dol*
lars per hogshead.
It is alleged and proved that the tobacco was shipped on board
of a flatboat, stanch and tight, and in all respects fitted for the
voyage, having a competent steersman or master, and the ordi*
nary number of men as a crew. In descending Qieen river in
daylight, in a place where a snag was not previously known to
be, the water from ten to fifteen feet deep, with a smooth cur-
rent, and in a long reach of the river, the boat struck upon a
snag which made a hole through her bottom, and in a few min-
utes she sunk, one end hanging upon the snag. The master
and crew appear to have used every effort in their power to save
the boat and caigo. Assistance was procured as soon as piao-
ticable, and the boat, after being got off the snag, was taken to
the nearest landing, her deck only being above water, and the
tobacco landed as soon as practicable, but some of it was in the
water three days, and all nearly two days. As soon as possible,
the master called on the senior justice of the peace of the county
for advice as to the best course to pursue : that person not know-
ing what was best to be done, went with the master to the clerk
of the county, at whose suggestion the parties went to the judge
of the district, and by the advice and direction of that gentle-
man, the master made his protest, and took measures to have
the tobacco sold, as no other boat could be had to reship it, and
the master had neither means nor shelter to open the hogsheads,
dry the tobacco, and repack it. No regular survey or appraise-
ment was made of the boat or cargo previous to the sale. The
plaintiffs, or their agents, as soon as they heard of the wreck,
made an abandonment and claim as for a total loss. The re-
maining facts will be stated in connection with the grounds of
June, 1841.] Caldwell v. Westebk M. & F. Ins. Co. 669
defense; the defendants having appealed from the judgment
given agamst them.
The first ground relied on for a reversal of the judgment, is.
that the boat became unseaworfchy or unfitted for the naTigation
during the Toyage, and was so at the time of the loss, by not
having on board a sufficient crew. It is in evidence that the or-
dinary crew of a boat is three persons, that is, a steersman and
two hands. At the time of the loss, one of the hands had taken
the canoe belonging to the boat, and gone ashore to purchase
some sugar for the use of those on board. He was at a short
distance when the accident occurred. It is further shown, that
at the time the boat was in smooth water, and in a part of the
river considered safe. Several of the witnesses, who have nav-
igated the river for years, say they never saw a snag in that
place before, and another boat was a few yards ahead, which
passed over or very nearly over the same spot in safety. A per-
son who was superintending the works going on to improve the
navigation of Qreen river, says, that in consequence of the num-
ber of trees felled on the banks, snags had become fixed in
places where they were not before, and the best navigators
might be deceived. It is further shown, that if the absent man
had been on board, he could not have prevented the accident, as
no danger was anticipated. Several witnesses depose, that if
Ave times the number of the ordinary crew had been on board,
the accident could not have been prevented.
It is as unquestionably true that a competent crew is as requi-
site to seaworthiness as having a competent master, and the
necessary tackle and apparel, and if the vessel is not properly
furnished in that way when she commences her voyage, it is a
cause for avoiding the policy: 1 Ph. Ins. 312, et seq. But if a
competent crew is provided for the whole voyage, the policy is
not defeated by the occasional absence of some of the sailors on
other duties in the course of it. A ship at sea might, under
particular circumstances, be compelled to have a portion of
her crew absent for very necessary purposes, and a loss take
place during their absence in search of water or provisions, yet
we think the policy would not be avoided in consequence. Mr.
Justice Bayley held, in the case of Btuih v. Boydl Exchange Assur-
ance Companyy 2 Bam. & Aid. 73: " The owner is bound in the
first instance to provide a ship with a competent crew, but he
does not undertake for the conduct of that crew in the subse-
quent part of the voyage:'' 1 Ph. Ins. 314, 315. In this case,
when the boat struck, the man was absent for a necessary pur-
€70 Caldwell v. Westebn IL fr F. Iiv& Go. [homaianh,
po86, and there was certainly less risk in sending him ashore in
a pirogue to porchase necessary supplies than to land the flat-
boat in a swollen stream, with banks incombered with fallen
timber. This case is Tery different from those in 6 Mart. (N. S.)
^,' and 14 La. 489.' We think the plaintifi have proved the
boat was riverwortfay, notwiUistanding the absence of one of the
<srew, and according to the authorities cited from 3 Mason, 439,'
and 2 Wash. 162,^ 876,* they have sustained this part of their
The second ground of defense is, that the sale was unneces-
sary. It is certain that a strong case of necessity must be made
outto justify a master in sellingayesselorcatgo, if other means
of saving either be in his reach; and he must arail himflelf of
all proper diligence (taking his situation and the condition of
the vessel and cargo into consideration) to procure tiie means:
Ab. Sh. 2 el seq. In this case it seems to us the master of the
boat acted with great discretion and fairness. As soon as his
boat sunk, he used every effort to get it to the shore, and suc-
oeeded, although full of water and sunk to the deck. He pro-
cured all the assistance in his power to assist in landing the
tobacco, and got out every hogshead as soon as practicable,
though much damaged. He applied to persons presumed to be
most competent to advise him, what vras best for the interest of
all concerned. The sale appears to have been fairly conducted,
and advertisements sent into as many as four counties, from seven
to nine days previous to it, and persons attended from a dis-
tance of more than forty miles to bid. Two companies were
formed who bid against each other, and the tobacco vras cried
for more than two hours, and sold for one thousand and seventy-
five dollars.
It is shown the master could not have procured another boat
to ship the tobacco on, or raise and repair the one sunk, and it
is further shown that if he had been able to do so, the tobacco
would have been rotten before it could have reached New Orleans.
Two witnesses engaged in the tobacco business in this city state
such to be their opinion, and relate an instance where a cargo of
tobacco was sunk near Helena, in Arkansas, remained in the water
only six or eight hours, then brought to the city in a steamboat,
and the loss was sixty-two per cent. That it would have been
1. CMeoeOkea t. La, State Int, Co. ; 8. 0., 17 Am. Deo. IIS.
a. WhUney t. Ocwm Mm. Co.; 8. 0., 88 Am. Dto. OM.
8. Hvmphrtgi t. Union Int, Co, ,
i. Wataon ▼. In$. Co. qf North America.
6. Cort r. DtUxwoTo Int. Co.
July, 1841.] BucKNEE v. Watt. 671
total, if brotiglit from Green river, in Eentaoky, on board of
A flatboat, we can not doubt.
The defendants say the master and crew should hare opened
the hogsheads and dried the tobacco. The evidence on this
point satisfies usthat itwas not inhis power to do so. For that
irarpose it was necessaiy to havea number of houses or bams in
which the tobacco could have been himgup. After it was dried
it was necessaiy to let it remain suspended, until the weather
4should make it sufficiently moist to be handled without injury,
4K> as to put it in bulk, and then into the hogsheads. All the
^tnesses who saw the tobacco, say thatat the place where it was
lying, no shelter or covering could be had to put the hogsheads
4mder, after they were taken from the water, and they were ex-
posed on the bank nine days. On the day of the sale water was still
draining from some of them. The tobacco was purchased by a
•oompany, composed of persons in the neighborhood, by whom
it was hauled to several plantations, where it could be opened,
4md the necessaiy houses and presses or prizes found for the
•drying and repaddng it. Brown, one of the purchasers, says,
that sixteen hands were employed nearly two months, before the
boat could be raised and repaired and the tobacco ina condition
to be shipped again. The witnesses state the tobacco sold for
iuUy as much as it was worth, and we are satisfied such an emi-
nent necessity existed for the siede as to justii^ the master in act-
ing as he did.
The judgment of the commercial court is therefore aiBrmed,
with costs.
rifrT.T»D WiBBAMTT ov SxAWOBTmniss.— 13i6 sabjeot of what to inetndej
within the implied warrmnty of Maworthiness in marine inenranoe ia diaoniwed,
4uid the anthoritiea, both in this series and elsewhere, reviewed in Fleming v.
Marine Ineuramee Co., 38 Am. Deo. 37; WkUney v. Ocean Inewnmee Co., Id.
Jm, end MeMUUm v. Unkm Ine. (7o., Id. 112, sod the notee to theae oeaea.
Wmnr Misna mat Sell Inscbxd YnsiL: See Boberteen t. W, F. A Jf,
J. Co., poet.
BuoKNEB V. Wait.
[19 LOUXUASA, 916 ]
tldx Loa CoMTRAorue Dstebminxs as to Valtoitt of Gontbaois.
ITo State is Bound to Recognize and Enpoboe Contracts Injubioub te
its own interests or those of its subjects, althongh valid by the law of the
plaoe where made.
49KATUTB Of THIS STATE IN DeBOOATION OF THE RULES OF EVIDEKCB AS
established elsewhere, will nevertheless, as to oontracts entered into in
672 BucENEB V. Watt. [Louisiana,
another staia, be obeyed and ezecated in any action brooj^ to eii/on»
each oontraotB in tbia state.
Bkhbabzhq. The &ct6 are sufficiently stated in the opiniozi.
T. Slidell and Eo8eliu8, for the appellant
O. B, Duncan, contra.
By Court, Gabland, J. The application for a rehearing in
this case was granted exclnsiTely on the point, whether the evi-
dence of Harper and Carpenter, who were two of the firm of
Harper, Carpenter k Co., the drawers of the hill sned on, was
admissible. In Mississippi, where the bill of exchange sued
on was drawn, the drawer is a competent witness in a suit be-
tween the holder and indorser of it, but in this state we have a
statute which enacts, that " the drawer of a note or bill of ex«
change, or other negotiable paper, shall never in any case what'
soever be admitted as a witness in any civil cause or suit
brought by the holder of any such note, order, bill of exchange,
or other negotiable paper, against any of the indorsers of said
notes, orders, Inlls of exchange, or other negotiable paper, for
the recoTeiy of the capital and legal interest of the said notes,
orders, bills of exchange, or other negotiable paper:" 1 Moreau's
Dig. 624. The defendant's counsel contends that, as the con-
tract was made in Mississippi, it must be gOTemod by the laws
of that state, not only as to the form and matter of the con-
tract, but also in relation to the evidence by which it is to be
supported or invalidated. He therefore insists that, as Harper
and Carpenter were competent witnesses in MiBsifwippi, they are
so here. In the absence of any statutory provision this might
be a nice question, one upon which jurists are divided in opin-
ion, and the authorities nearly balanced.
Judge Story, in his Conflict of Lawp, says: '^ Qenerally speak-
ing, the validity of a contract is to be decided by the law of the
place where it is made. If valid there, it is, by the general law
of nations, jure gentium, held valid everywhere by the tacit or
implied consent of the 'parties." The same rule has been well
established in- our jurisprudence: Conf. L., ed. 1841, sec. 242;
11 Mart. 730;* 12 Id. 475;' 8 Id. 95,-» 1 Mart. (N. S.) 202;* 1
Pet. 317;^ 13 Id. 378, 379;* and various other authorities cited
by the learned author of the Conflict of Laws. But to thia
rule there is an exception as to the universal validity of con-
tracts; which is, that '' no nation is bound to recognize or en-
1. Morrit v. Eve*. 4. Brown t. BiAardtmu.
a. Evan$ y. Gray, 6. WUUfigt v. Cwu^g^a, 1 Pat. 0. 0. S1T»
t. Whitton T. Stodder; S. 0., 18 Am. Dto. 381. 6. WUooat v. Hmd,
July, 1841.] BoBEBTsoN V. Western K & F. Ins. Oa 673
force any contracts which are injurions to its own interests or
to those of its own subjects: Oonf. L., sec. 244, p. 208; 2 Mart.
(N. S.) 78;' 5 Id. 587 ;» 18 Pet. 65, 78.« The reason why the
courts of one state or nation will execute contracts according to
the laws of another, rests upon a principle of comity and con*
yenience among nations, which can not be extended so far as to
violate the positiye legislation of the state or nation whose
oourt is called on to enforce the foreign contract and law. We
are bound to beUere that the legislature, when the statute in
question was enacted, supposed that the rule of eyidenoe which
was then in force in this state, as well as in Mississippi, was in-
jurious to the interests of our citizens, and therefore changed
it. We can not violate their will, although the necessiiy of the
law may not be so apparent to our minds as it was to those who
had the power to enact it.
We, therefore, see no reason for changing the opinion here-
tofore given.
A Stats will iror Erioboi CoRTBAom Mabb Blbiwhibb by iti eitU
waoM, if th«y are In violatioii and frand of iti laws: Hinds t. Brtmeattef S3
Am. Deo. 907, In the note to whioh the oaaee relating to this ml^eot hereto*
lore reported in thia leriea are eited.
BOBEBIBON V. WeSKBBN MaBINB AND FiBB InB. Go.
[19 LOUIKANA, 237.]
Masthk mat Sill Ivsubed Caboo for the benefit of all oonoemed, where
it has been so damaged by the perils of navigation, that no praetioaUe
ooarM remaina to be panned by whioh it oan be restored to its original
state, or preserved from total lots.
AiTBB ABAinwNMiHT, THB Iksubed, ih Makino SALBof the insozed prop-
erty, beoomes the agent of the insurers.
AoKiiT OB Tbustkb CAN NOT PuBOHASB AT Salb Madb bt Him for the ben-
efit of his prindpal or eeatmi que truBt, without the oonsent of the latter.
Puboeusb or Insubxd Pbopebtt bt thb Owkxb at a sale for the benefit
of all oonoemed, ie equivalent to a revocation of his prior abandonmanti
and will preclnde him from reoovering on a claim for a total loo.
Pabtioular Usaob and Custom, by which owners of insured property were
permitted to purchase the property at sales for the benefit of the insurers,
oan not have the effect of legalizing a sale which, by the general law, is
unlawful and void.
Afpbal. The opinion states the facts.
Jone8 and Peyton, for the phuntiff.
Maybin and Orymes, corUra.
1. Enor. 9. Saul t. CredUort ; 8. 0., 15 Ass. Dee. Itt. •• Aminm v. Pmd,
Am. Dm. Vol. ZZZVI-48
674 BoBEfiTsoN V. Western M. & F. Ins. Co. [Louisiana^
By Court, Mobpht, J. This action is brought on an open
policy of insurance taken by Lambeth & Thompson, commission
merchants of New Orleans, for whom it may concern. The
plaintiffs seek to recover three thousand seven hundred and
twenty dollars, the value of fifty-eight hogsheads of tobacco, at
the rate of sixty dollars per hogshead. They allege, that on or
about the ninth of January, 1838, they shipped this tobacco on
board the flatboat Lady Marshall, whereof James Saunders was
master, from Greensbui^, on Green river, in the state of Ken-
tucky, to the address of the said Lambeth & Thompson, of this
city; that while said boat was descending Green river, on her
way to the place of destination, and about one hundred and
fifty miles below Greensbuig, she was wrecked and sunk in con-
sequence of running on a rock, notwithstanding the exertions of
the master and crew to avoid the accident: that a total loss of
said tobacco has thus occurred by one of the perils insured
against, to wit, the dangers of the river; and that they have
made an abandonment to the company of such part of the to-
bacco as could be saved from the wreck. The underwriters rest
their defense on two grounds, to wit: 1. That the sale of the
damaged tobacco made by the master was unnecessary and
illegal. 2. That the abandonment in this case was waived,
because the tobacco was purchased by the plaintifls.
1. On the first ground of defense, it has not been, nor could
it be denied, that in cases of necessiliy the master, upon whom
the character of agent is in ^ome manner forced, is authorized
to sell for the benefit of all concerned; but it is contended, that
the circumstances of this case did not justify a sale; that the
tobacco could have been dried, repacked, and forwarded to New
Orleans by the master, as it has been subsequently by the pur-
chasers. The evidence shows that notwithstanding the exer-
tions of the crew, and what additional hands could be procured,
the tobacco remained several days under water; that soijaeof the
heads of the hogsheads were bursted out, and the tobacco satu-
rated with water. The witnesses and appraisers agree, that the
damage done to it exceeded fifty per cent. If another boat could
have been procured on the spot (of which there is no evidence),
it would have been contrary to the interest of the insurers to
reship the tobacco in its then damaged condition; for it would
have become rotten and entirely worttiless long before it reached
New Orleans.
But admitting, as defendants contend, that it could be con*
eidered the duty of the master to go through the tedious, expen*
July* 1841.] Bobebtson v. Westebn K & F. Ins. Co. 675
fliTe, and tmoertain process of opening, dxying, and reprizing the
damaged tobacco, we are satisfied from the testimony, that it
was impracticable for him to do it. There was on board up-
wards of eighty hogsheads of tobacco, and the master was bound
to take care of the whole of it; numerous bams or shelters were
necessary for the operation, and none were to be had on the
bank of the river, nor could a sufficient number of hands be
procured. Two months at least would have been required to
prepare the tobacco for reshipment, and then from the uncer-
tainty of the navigation of Oreen river, the cargo might have
been detained several other months waiting for a tide. The
master declares, that he thought it more advisable to sell the
tobacco, damaged as it was, because the expense would have
been much more, to have fitted up and repaired the boat, and
dried and repacked the tobacco, than it would have sold for in
New Orleans. Two witnesses who express the opinion, that tbe
tobacco could have been dried and reprized, admit, that the pro-
cess would have been very expensive. It further appears, that
the purchasers of the tobacco had to send it a distance of ten
miles, and to procure a person of skill and experience to attend
to the drying and reprizing of it; that it required a number of
bams and shelters, and a great number of hands, and that it
was nearly three months, before the tobacco was ready for re-
shipment. Under such circumstances, it appears to us, that the
master was not bound to impose on himself and his crew
these new and troublesome duties, and was justified in selling
the damaged cargo. Then being no longer near the place, the
master consulted with one Barrett, the derk of the couniy court
of the county, where the accident hapx)ened. Notices of the
sale were stuck up in different public places during several days
in three or four of the adjoining counties, and everything ap-
pears to have been conducted with good faith and fairness on
the part of the master: 2 Ph. 311, 328; 1 Doug. 234;' 12 Johns.
107;«2Sumn. 215.'
2. On the second point, we are of opinion, that the purchase by
the insured was illegal, and had the effect of revoking their aban-
donment; it turned the total into a partial loss. It is now weU
settled, that when the insured abandons and claims as for a total
loBB, if it becomes necessary to sell the subject of the insurance, he
can not purchase it on his own account without waiving the
abandonment. This rule is said to be founded in sound policy,
1. MUlu ▼. FUtch^r. a. SaUut ▼. Ocean Int. Co.; S. C. 7 Ara Deo. 290.
3. The Sarah Ann.
676 Robertson v. Western M. & F. Ins. Co. [Louisiana,
to pierent fraudulent speculations upon a loss, at the expense of
the insurer. It rests also on the broad and well-known princi-
ple, that a trustee can not become the purchaser of the estate of
his cestui que trust. After an abandonment, the insured becomes
the agent of the insurers, and standing in that relation he can
not purchase except with the consent of his principals. If he
does, and the purchase is not sanctioned by the insurers, the
abandonment is waived and annulled. It has been remarked, thai
this doctrine applies with great force and reason to cases of in-
surance. By-standers will seldom bid at sales of property in
that situation, where they see the original owner is himself bid-
ding with a view, as they may suppose, to save something from
the wreck. The underwriters, being in most cases at a distance
from the spot where the loss happened, would be esqpoaed to
great impositions if the rule were xelazed: 2 Chd. 280;' 9 Pick.
466 f 8 Johns. 89,-* 6 Id. 810;' 10 Id. 177,^ 12 Id. 24f 1 Hason^
841;' 2 Id. 869;" Ph. 409, 410.
But it as Qxged, that these authorities do not apply to the
present case, in which all the prooeedings in relation to the sale
were conducted, from beginning to end, by the master as sole
agen^ of the underwriters; that by the abandonment the prop-
erty was transferred to the insurers, and that from that moment
the master ceased to be the agent of plaintiflh, and became
theirs; from whence it is argued, that the insured are to be con-
sidered as strangers, having nothing to do with the sale, and
competent to purchase like any other person. It is undoubtedly
true, that tiie master, or whoever has the charge of the pro]>erty,
becomes instantly upon abandonment the agent of the insurers;
but this must be understood in cases where the owners are not
themselves on the spot; for if they are, they become the agents
of the underwriters as well as the master, and the latter will
natoially consult with them, and be guided by their advice and
directions; especially when, as in the present case, a regular
abandonment has not yet been made. A few days before the
sale, the master, it is true, entered his protest, in which he de-
clared, that the sale or reshipment of the tobacco would be made
for the under¥rriters; but the notice of the loss and of the inten-
— i^^^^i^-^™ •< ^^_^^,^„_^^^^,^,^,^,,^^„^^^^^^^^,^,„^„^^^,,^^
1. VniUd Iiu. Co. y. Bobinton,
9. SaU T. FrankUn /nt. Co,
8. Livingtton y. Columbian Int. Co., t Jcbam. tf.
4. Waldon v. PhcBwix In*, Co,
6. Ogden ▼. Nem York Firo In$. Co. '
e. Ogdmy. New York Fiirmm*»biM.O:^119aam,9^
7. CkwrcK ▼. Mar, Int. Co.
8. Barker v. Mar, Int. Co.
Sept. 1841.] GxTTORY V. Woods. 677
lion to abandon was given to the defendants only af fcer the sale.
Besides, the insured agrees by the policy, that if he takes any
step in regard to the property after an abandonment, he will act
as the agent of the insurers as well as his agents, captain, super-
cargo, etc. : 2 Cond. Marsh. 614.
In most of the cases in which a purchase by the owners has
been held to be a waiver of the abandonment, it will be found,
{hat the sale was made tmder the authority of the master. The
record contains some evidence tending to show, that it is the
prevailing usage in that section of the country, for the owners
of damaged tobacco to buy it in at the sales made for the ac-
ootmt of the underwriters. This usage, admitting it to exist,
can not surely justify, in a legal point of view at least, that
which by the settled law of insurance has been held to be tm-,
lawful. It is not, besides, proved to have been of such long,
standing and general notoriety as to authorize the presumption,
{hat the parties have contracted with reference to it. The
plaintiffs can, in our opinion, recover only for the partial dam-
age sustained, which is proved to have been fifty per cent., and
the expenses for saving the tobacco, which amounted to one
hundred and seveniy dollars.
It is therefore ordered and decreed, that the judgment of the
commercial court be avoided and reversed; and proceeding to
give such judgment as, in our opinion, should have been ren-
dered below: it is ordered and decreed, that the plaintiflh do
recover of the defendants nineteen hundred and ten dollars,
with costs below, those of this appeal to be borne by the plaint-
i£b and appellees.
Whebb THi Omt or Rbpattw would ExdBD ONB Halt ths Valub of a
vessel as repaired, the insured may abandon for a total loss: Oaken v. (XlbaWes>
ton F, A M, I, Cfo; 31 Am. Deo. 649, and note. As to when master has
authority to sell, see Pekree ▼. Ocean Ina, Oo.y 29 Id. 667> and note.
TBUsnoi OAV NOT PuBOEASB AT HIS OWN Salb.— The aathoritias in this
•sries on this sal^eot are ooUeoted in the note to 8cai^$ Eair v. Qmrimffe
Jb'r, 38 Am. Deo. 581.
GuiDBY V. Woods.
(19 LOOXSLOIA, 88i.]
Cbmifioats or Pubohasn ov Pxtbuo Lands issued by the regisfesr and
reoeiyer does not oonstitute evidence of title.
SuoB GiBTinoATB IB EviDBNOB that the applicant was then in possession,
and that he had ooltlvated the land in the time and manner required by
lawi
678 QuiDRY V. WooDa [Louisiana^
RiozBTEK AHD Rsoirvmi HATB NO JuBiBDioixov to grant titlm by pre-
6imptioii.
OMniTBBTONm ov THS Qrnxral Lahd QniCB HAS AuTHOBinr, under tlM
•aperrision of the aeoretary of the treaenry, to determine the oonstmc-
tion of acta of ooDgreas relative to the public domain, and if it appear
that the register and receiver haye iaaned a eerfcifioato of purohase to
lands the aale or disposal of whioh is nnanthorized by law, may revoke
or annul it.
BaooBOS 09 THS Obneral Laud Ovviob and deposition of the oommis-
sioner are admissible to prove the canoellation by the rommiMioner of
the certificate of entry and purohase issued by the register and receiver
to land not subject to pre-emption.
FkNAL JUDGHBNT IN FaVOK OV A BXTINDANT MAY BB BnTBBBD UpOU an
appeal from a judgment of nonsuit in his favor, when the pporeeding is a
petitory action to try title, and the defendant ezbibita the best title to
the lands in questioii.
Apfbal from a judgment of nonBoit. The opinion rtateB Hie
facts.
LinUm and Voarhiea, for the
Bwayak and T. H. LewU^ tot the defendant.
By Ck>nrt, Bullabd, J. The plaintiff aaserte title to a lot of
gxoond, containing one hundred and twenty-six acres and three
one hundredths of an acre, being in township three south, range
three east of the basis meridian on south of latitude thirty*
one, which he complains has been taken possession of by Martin
Woods, the defendant, to his damage, and he prays that the title
may be decreed to be in him. The defendant, after denying gener-
ally the allegations in the plaintiff's petition, alleges that he, the
respondent, long since in person settled on, inhabited, and culti-
vated the lot of land sued for. That he was an actual settler on
said land, and head of a family, and above tweniy-one years of age,
and a housekeeper on the tweniy-second day of Jtme, 1888, and
for four months preceding, commencing on the twenty-second
of February, 1838. That by reason of the premises, the title to
said land vested in him by virtue of an act of congress, approyed
on the twenty-second of June of that year, entitled an act to
grant pre-emption rights to settlers on the public lands. That
he fully proved all the foregoing facts before the r^;ister and
receiver at Opelousas, but that those officers, in violation of
law, and in disregard of the positive instructions of the commis-
sioner of the general land-office, permitted the entry of said
land by virtue of a floating right. That the plaintiff never pro-
duced his written consent to the entry of said land. That the
defendant has appealed from the decision of the register and re-
Sept. 1841.] QuiDRY V, Woona 679
odTer to the commissioner of the general land-office, and the
object of this action is to defeat that appeal. There was judg-
ment for the defendant as in the case of nonsuit, and the plaintiff
appealed. The appellant has not favored us with any ailments,
either written or oral, and relies, we presume, upon the evidence
of his title in the record. The appellee, in answer to the appeal,
prays that the judgment may be amended and rendered final in
his favor, instead of one of nonsuit.
It is shown conclusively, that the purchase or entry by the
plaintiff has been upon opposition or appeal, annulled and de-
clared void by the commissioner of the general land-office, and
that decision approved by the secretaiy of the treasury. This
decision is founded upon several grounds, one of which is, that
a township plat, duly approved by the township in which the
land is situated, did not exist in the office at the time of the
purchase; and another, that the float of the plaintiff was not
located at the same time, that he availed himself of his principal
pre-emption right as an actual settler, according to the construc-
tion put upon the act of congress by the land department. This
decision was communicated to the register and receiver at
Opelousas, and the commissioner, in a subsequent communica-
tion, remarks: " This office having, upon a reference of the case
of Hypolite Gtiidiy and Oeleste de Lafosse, decided that the
floats of either of those individuals could be located on town-
ship three south, range three east; and in a letter of the seven-
teenth of November, communicating to you that decision, and
having, notwithstanding, permitted the floats of those individuals
to be located in said township, and one thereof on lot seventy-
two, township three south, three east, above mentioned, this
office on the eighteenth of December last, for those reasons and
others mentioned in that communication, canceled certificates
1917 and 1918. Said tract therefore, being public land, no rea-
son is seen, why the claim of Martin Wood should not have re-
ceived some action at your hands; and it is accordingly returned
for your examination and decision."
It is clear, that the mere certificates of purchase, such as are
exhibited in this case, are not final evidence of title out of the
government; although this court has generally considered them
sufficient evidence of a sale from the government, as to be the
basis of a petitory action. Such certificates are liable to be
canceled by the land department, when they are shown not to
have been fairly and legally obtained. The decision of the reg-
ister and receivtr, in the absence of fraud, would be conclusive
680 GtnDRT V. Woods. [Louisiana^
as to the facts, that the applicant for the land was then in poo-
session, and of his coltiTation of the land within the prerioos
year; becanse these questions are directly submitted to those of-
ficers. Yet, if they underfcake to grant pre-emptions to land on
which the law declares they shall not be granted, then they are
acting upon a subject-matter clearly not within their jurisdic-
tion; as much so as a court whose jurisdiction was declared not
to extend beyond a certain sum, should attempt to take cogni-
sance of a case beyond that sum: 13 Pet. 498. The eyidence
further shows that the certificate was not granted, or the entiy
made, until long after the act of congress of 1834, under which
it purports to haye been giren, had expired by its own limita-
tion. The purchase appears to hare been made in yirtne of a
pre-emption float, under the act of congress of the nineteenth
of June, 1834, and the certificate of purchase bears date May 3,
1838. The construction put upon that law at the department
has always been, and the instructions to the registers and re-
ceivers conformable to it, that these floating rights, as they are
called, to eighty acres, under the act, must be entered and lo-
cated at the time of entry of the tracts, on which such floating
rights accrued, and that these floats are liable to the same dis-
abilities as the original pre-emptions under which they accrued,
and which the law requires to be located before the commence-
ment of the public sales, which shall include such original pre-
emption tracts: Public Lands, part 2, Opinions and Instruc-
tions, 633 ei aeq.
We do not doubt the authority of the commissioner of the
general land-office, under the superriaion of the secretary of
the treasury, to decide upon questions such as that presented
by the case of Chiidry, relating to the true construction of the
act of congress, and declaring void a certificate of purchase of
lands, which the law forbids to be sold or disposed of; although
the register and receiver alone have jurisdiction to decide who
is entitled to a pre-emption, that is to say, as to the sufficiency
of proof of settiement and cultivation under those acts: 4 La.
549;^ 6 Id. 12.' But even if the land department has decided
otherwise, we held, in the case of Jowrdan et al. v. Barrett et ol.,
13 La. 41, that the decision of the secretary of the treasuiy,
under the back-concession or pre-emption laws, approving the
ox)eiations of the surveyor-general, in making the apportion-
ment among different claimants, was not conclusive upon the
legal rights of the parties under the act of congress. The same
U Widow and HHn of Hmry ▼. WeUh ; S. 0., 28 Am. Deo. 490. % Primoi ▼. TMbodoam^
Oct. 1841.] Wafer v. Pratt. 681
principles apply to other officers, who do not act jndidaUy.
The present case can hardly be distinguished from that of Marsh
4ind MBer ▼. Oontioulin, so far as concerns the right of the de-
fendant: 16 La. 84.
The court, in our opinion, erred in rejecting the written erl-
•dence of the canceling of the plaintiff's certificates, and the de-
positions of the commissioner of the general land-office. The
•certificates having been declared null by competent authoriiy,
4Uid being evidently Toid under the act of congress, which for-
bids the disposition of the public lands, until a township plat,
•duly approved, shall be returned to the officer, and on other
legal grotmds, it is dear the plaintiff exhibited no subsisting
iitle to the loous in quo. The defendant insists upon his right
to a final judgment, instead of one of nonsuit. Although this
<x>urt diflclaimfl any right to dedde upon the question, whether
the evidence of occupancy and cultivation be sufficient to en-
title the defendant to purchase as a pre-emptioner, yet we do
not see why there should not be final judgment against the
plaintiff, and the defendant be protected in his possession against
any future action upon the same pretended title. Without de-
ciding, therefore, that the defendant has a valid titie against
the government, or any other person, we think his titie better
ihan that exhibited by the plaintiff.
It is therefore adjudged and decreed, that the judgment of the
'district court be reversed and annulled, and ours is, that there
, be final judgment against the plaintiff, and that he pay the costs
•of both courts.
BiQBT or Psx-ucmoir Cbbatbb no Titlb to land prior to the exhibi-
tioD of the neoeMAiy proofs: Henry v. Welch, 23 Am. Deo. 400, in the note to
which the subject is oonsidered and the authorities reviewed. The question
how far decisions of the register and receiver of the United States land
•offioe are final in matters passed upon by them, is considered in the following
oases and the notes thereto: BocUner v. VentresB, 20 Id. 266; HemryY. Wekk,
-23 Id. 400; Bitd t. Ward, 13 Id. 606
Wafer v, Frltt.
(1 BoBiiraoir, 41.]
^bncBirv u Pubumsd to bb Rightfully in Possxssion of property takes
in execution.
PnaoN Claiming Property Taken by a Sheriff in Exbgotion, must,
in a suit against the officer, establish a clear and perfect right or title.
Title by Prescription can not be Acqtti&ed by possession unaccom
panied by any claim of ownership.
682 Wafer v. Pratt. [Lomsiazi^
Poflsissiov Follows thx Tttlb where BSTBtal ax« in tlie oanteoiponiiefaii»
use aod oooapation of property.
Appbal. The facts are stated in the opmion.
Dauma, Copley, and Friend^ for the plamtifF.
l^Ouire, for the defendant.
MoBPHT, J. Plaintiff enjoined the exeoation of a mit of
fieri facias under which the sheriff of the parish of CSlaiboxne
had seized and was proceeding to sell a negro man named Jim,
as belonging to Joel Wafer, against whom defendant had ob-
tained a judgment; he alleges that for several years past he has
had the actual and quiet possession of the boy, and that he i»
the legal and equitable owner of him. The defendant moved
the court that plaintiff be ruled to prove the allegations in his*
petition, and upon failure thereof that the injunction be dis-
solved with damages. The sheriff pleaded the general issue,,
averring that he seized the slave as the property of Joel Wafer,,
who dimmed him as owner tweniy years ago, and has continued
to own him ever since, though he permitted the plaintiff, his
brother, at whose house he frequently lived, to have the servicea
of the boy and of other property of his, but that plaintiff never
claimed to own this slave until the institution of defendant* &
suit against his brother, Joel Wafer, about one year ago. The
judge below made the injunction perpetual, from which decree"
the defendants have appealed. It appears to us from the testi-
mony on record, that the court erred. When the sheriff is in
possession of property by virtue of a seizure under execution,
he must be considered as a rightful possessor holding for the-
benefit of the plaintiff in the writ, until it be clearly shown
that the property seized belongs to another person than the de-
fendant from whom it may have been taken. The right of a third
party to oppose an execution is limited to cases where he owns-
the property or has a privilege on it. When the former ground
is assumed, the person making the opposition is in the position
of a plaintiff in a petitory action; he must make out a dear titie,
otiierwise he must fail in his attempt to arrest the sale: Code of
Pr., art. 396; 5 Mart. 268;* 8 Mart. (N. S.) 661."
On the trial, the plaintiff in injunction exhibited no titie
whatever to the slave in question; on the contrary, the evidence
by him adduced shows that as far back as 1819 or 1820 Joel
Wafer brought this slave to Arkansas as owner, before the
plaintiff himself went to that state. That since then the plaint*
1. iVevof ▼. Hmnm. 2. Laqf t. Buhler,
Oct 1841.] Ratcliff v. Bbidgeb. 683
and his brother, Joel Wafer, hare almost constantly lired
together, either in Arkansas or in Louisiana, and particularly
during the last ten or twelve years. The long possession then
which plaintiff has shown can not avail him, because he did
not possess as owner, and his possession was not exclusive. If
he had acquired any title to the slave from Joel Wafer, his
other brother, Thomas Wafer, and his brother-in-law who tes-
tified as to his possession, could have proved it, as they lived
together for a number of years; but as no transfer to plaintiff is
shown of whatever right or title Joel Wafer originally had to
this slave when he took him to Arkansas, we are bound to
believe that plaintiff did not possess him as owner, and could
not therefore acquire title to him by prescription: Oiv. Oode, arts.
8399, 8409, 8476, 8489. We have held, that when a vendor and
vendee live in the same house, possession follows title: 8 Mart.
(N. S.) 887.^ The testimony, moreover, shows that t&e plaintiff
began to claim to be the possessor of the slave as owner only
sinoe his retom from Arkansas in 1828; from which time the
presGziptton provided for by article 8489 has not taken place.
It ia therefore ordered, that the judgment of the district
court be reversed; and proceeding to give such judgment as
should have been rendered below, it is adjudged that the injunc-
tion be dissolved, and that the plaintiff and appellee pay costs
in both courts.
PoesuBioN MUST Bx uin>xB ▲ Claim or Txtlb in Ordxb to bk Ad-
VXB8I: La F^romboit ▼. J(ick9on^ 18 Am. Deo. 403, and note; JaekBon ▼. /oAm-
MM, 15 Id. 498; MUehdl ▼. Walker, 16 Id. 710. Where the poflMsiion ii con-
OQzrent, neither party can aoqaire title against the other l^ an advene
holding: Uhkm Cfanal Oo. v. 7<mng, 30 Id. 212, and note.
Raxguff V, Bbidobb.
[1 BoBDnov, ST.]
BaiiB OF Impbovxmxnts Ebbotxd on Publio Lavd of the United Statea
forma a good oonaideratlon for a promissory note given for their price.
No Title to ob Libn ob Pbivilbob upok thb Land ia transferred by or
Implied in sach sale independent of the rights conferred by the laws of
the United States.
Appxal. The facts are stated in the opinion.
Mayo and OarreU, for the plaintiff.
JUcQuire and Ray, for the defendant.
1. Riehardt v. Nolan,
€84 Debliettx v, Bullabd. [Lomsiam^
Gablasd, J. The defendant being sued on Ids pxomissoiy
note for two thousand doUars, pleads that he was indnced to
sign it l^ the fraudulent and ftdse representations of the plaint-
iff, who pretended to be the owner of valuable improTements
upon {rablic land upon Long Lake, in the parish of CSaldwell,
which he sold defendant. He says these improvementB were
not worth two hundred dollars. He says there was error on his
party fraud on the part of plaintiff, and no consideration for the
note.
We find in the record a sale in writing from plaintiff to de-
fendant of all his claims and improrements on Long Lake xspon
the public domain, it being distinctly understood and expressed
at the time, that the land, for which the note was given, be-
longed to the United States. The defendant endeavored to
prove the improvements were not worth as much as he promised
to give for them, and contends that the sale of them was illegal,
as the parties expected a pre-emption right might be obtained at
Aome future day. Nothing is said of a right of pre-emption in
the sale, and if Bridger ever gets one, it will be by virtue of his
settlement, and not of the purchase made from plaintiff. The evi-
dence in relation to the value of the improvements varies a good
deal as to their value, but there is no plea of lesion. We are of
opinion that improvements made on the public land may be
sold, and form a good consideration for a promissozy note, but
such sale gives no title to, or lien or privilege upon the land, in-
dependent of the rights conferred by the laws of the United
States: 16 La. 232.' The defendant complains most ungia-
ciously of the sale made to him by the plaintiff. We see from
the evidence, that he purchased of the plaintiff four or five im-
provements; he has by an authentic act sold three of them to a
man named Holt for two thousand dollars ; he occupies the others,
and now coolly turns upon his vendor and charges him with
fraud for doing what he has himself done. We will not coun-
tenance such conduct.
Judgment a£5rmed.
DeBLESUX V. BXTLLABD.
[1 BoBDnov, 68.]
'KonoB TO Indobssb is not Ikvaud bbcausb Given upon Lioal Hoihut,
though the indoner would not be bound to act apoirtfae notice nntil the
day following.
Cbbtifioats of Notabt is not Evidknob of Pbotbst in this state, imleH
tabecribed by two attesting witnesses.
Oct 1841.] Deblieux v, Bullabd. 68tV
Appeal. The opinion states the facts.
Morse and Boysden^ for the plaintiffs.
BuBardf in pro. per,, and lliomey, tor the defendants.
MABizNy J. The defendants are appellants from a judgment
against them as maker and indorser of two promissory notes.
They pleaded the general issue only. The maker has made no
defense in thisoouri. His plea admits his signature to the note,
and a dose examination of the record has not enabled us to dis-
coyer any ground on which the judgment against him may be
disturbed. His co-defendant, Long, who is the indorser, haa
urged that notice of protest of one of the notes was given to
him prematurely. It became due on the first to the fourth of July,
1888; was correctly protested on the third, but notice was given
to him on the fourth of July, which by law is a day of rest. The
act of March 7, 1838, sec. 6, directs that when the last day of
grace is a public day of rest, the protest is to be made on the
preceding day; but that act is silent with regard to the giving
of notice.
It is the frequent complaint of indorsers that notices of
jirotest are given too late. This is the first time in our juris-
prudence that a complaint is made of notice being given too
early. The earliest notice of protest affords the greatest fiicility
to the indorser to guard and protect his interests. The English
books say that notice may be given on a Sunday, public days of
rest, thanksgiving, etc. , but that the indorser is not bound to open
the letter containing the notice, or to act on it, until the next
day: Bayley on Bills, ed. 1836, 265, 266, and notes. This
principle of the English law is founded in that soimd reason
which is the same in all countries. Nee erii alia Bomce, alia
Aihenis — on the banks of the Mississippi and on the banks of
the Thames. As the indorser has pleaded the general issue, a
plea which puts the plaintiff on proof of notice of the protest,
we are bound to examine whether there is legal proof in the
record of the notice of protest of the second note. Of this
there is no evidence except the certificate of the notary, which
is liable to this objection, to wit: that it wants the attestation
of two witnesses. See act of February 14, 1821, sec. 1.
This question has just received the examination of this courts
and its solution, in the case of the Oas Light Bank v. NtUtaU,
just decided, 19 La. 447; and the conclusion at which we have
arrived is, that the objection is fatal. There is no other evi-
dence of notice than the notary's certificate, and that is insuffi-
686 New Castle M. C!o. v. Red River R R Co. [LooisiaiLK
•
dfint to enable the plaintifis to leooyer on the second note in
this stiit, as against the indoiser.
It is thfixefore ordered that the judgment of the district court
be a£5rmed so far as it relates to the maker of the note, with
costs and five per cent, damages; and that it be reyersed as to
the indorser, William Long; and proceeding to give each judg^
ment as, in our opinion, ought to have been rendered in the
court below, it is ordered that the plaintiffs do recover of the de-
fendant, William Long, the sum of eighteen himdied and one
dollars, with ten per cent, interest thereon from the fourth of
Jnlj, 1888, nntQ paid, being the amount of the first note sued
on; and it is further ordered that there be judgment as in case
of nonsuit, for the said defendant. Long, as to the second note
of eighteen hundred and one dollars; the costs of the appeal to
be paid bj the plaintiflfi and apjMllces.
HOLZDATS ABM KOT BBTDIATKD HT COMPUTATION OF TDO whCD tfae dtkj
of perf onoaaoe f aOa upon that day. An exoAption ezkta whsre the last day
of graoe falla upon Sunday; demand may then he made upon tfae day pce-
▼ions: SaUer v. Burt, 32 Am. Deo. 690, the note to which refeis to tfae other
reported in thia aeriea and elaewhere upon thia anbjeot.
New Caocle MANUFAoruBma Go. v. Rbd Biveb
R. R. Go.
[1 BoBUmoVp 146.]
VXRBOB OF MSBGHANDISK PUBCHABED BT A SUBAOBST of another fiom
whom the merchandise waa ordered, can not charge the person in whoae
interest the purchase waa made, although the sale waa made with the
knowledge that the goods were destined for the use of soch peraon,
where it appears that credit was given directly to the individual from
whom the goods were primarily ordered, and not to the one for whoae
use they were intended, and that until after the insolvency of the f ormer^
no attempt to hold the latter responsible was made.
FoBBiON AoBNT OB Faotob IS Pbbsonallt Liablb ou coutracts made by
him in the interest of the person by whom he is employed.
AoBNT Kbed kot Dbsobibb TTnfgieT.g a8 Suoh in the contnMst in such oaae^
but in the abaenoe of evidence showing that oredit waa given to the
principal, it will be presumed to have been given to the agent ezohiaively.
Appeal. The opinion states the facto.
Dunbar and Hyams^ for the appellants.
Ogden and Brent, contra.
Oct 1841.] New Castle K Co. u Red Biveb R R C!o 687
MoBSHY, J. The defendants axe sued for the Talne of a cer-
tain number of sets of wheels, axles, boxes, and other ma-
<diinei7, which the plaintiffs allege they sold and delivered to
them at their special instance and request, some time in Decem-
ber, 1836. The answer denies the facts set forth in the plaint-
iffs petition, and avers that the defendants are perfect strangers
to the New Castle Tnannfactoring company, and have never had
any dealings with them; that they never contracted with them,
nor authorized any one to contract with them in their name and
on their account; and that the said company has no daam
against them in law or equity. There was a verdict below in
favor of the defendants. After vainly endeavoring to set it
aside, the plain fciflh appealed.
The record shows that some time in July or August, 1886, the
house of M. de Lizardi ft Co. received instructions from the de-
fendants to procure for their use the articles mentioned in the
plaintiff's petition; that in order to obtain them, they employed
the house of B. ft J. Phillips, of Philadelphia, who applied to
the plaintiffs to execute the order, informing them that the ar-
ticles were wanted by and were for the use of the Bed river
railroad company. The articles, when ready, were forwarded
to B. ft J. Phillips, who consigned them to ihe house of M. de
lizardi ft Co. In two letters addressed to B. ft J. Phillips by
the plaintiffiB, they inclosed the bills for the wheels and other ar-
ticles they had furnished, and advised them that the amount had
been placed to their debit. No correspondence whatever passed
between the plaintiffs and defendants, nor between the former
and the lizardis, who never knew untQ after the institution of
this suit, by whom the order had been executed. They declare
that they sent the order to be executed on their own oxedit, and
that shortly after receiving the goods they forwarded the amount
to the Messrs. Phillips, in bills on England, which have since
been paid by the defendants. It farther appears that on the
ninth of December, 1836, the plaintiffin in a letter inclosing a
general bill for the iron work furnished for the Bed river rail-
road company, advised B. ft J. Phillips that they would be
drawn on in a few days at short date therefor, and tiiat the said
B. ft J. Phillips, in reply, requested that no draft should be
drawn on them but at four months, as they could not receive
the funds for a month, when the remittance to them would be in
sixty days sight bills; and that they would accept such a draft,
and see that the money was obtained. This proposition was
688 NiEW Castle M. Co. v. Red Riveb R R Co. [Louisiana^
acceded to by the plaintiffs, who receiyed the acceptance of the
Phillips for the amount. The draft was not paid at matmity,
nor has it been paid since; but the eyidence shows that when the
Phillips accepted plaintifTfl' draft, they were enjoying unbounded
credit in the United States and in Europe, and that they maiQ-
tained their credit untQ March, 1837.
It api>ears to us that the defendants can not be made liable to>
the plaintifffl, between whom and them there is no privily of
contract. It is clear that although the plaintiffs knew that th&
articles were for the use of the defendants they looked to B. &
J. Phillips for payment, and trusted to them ezdusiTely; ad-
vising them that they had been debited for the amount of the
articles deUvered, they negotiated with them to obtain their
acceptance; and even when this acceptance was protested, they
do not appear to have looked to the defendants as in any way
liable to them. They give them no notice that they were unpaid
for the goods forwarded, and only brought the present suit fif-
teen months afterwards, when they had lost all hopes of being paid
by B. ft J. Phillips, and when the defendants had settled with
M. de Idzardi ft Go., the only agents whom they acknowledged.
The liizardis acted towards the Phillipses as principals, not as the
Hgents of the defendants, and one of the Phillips has declared
that B. ft J. Phillips considered themselves as the agents of the
house of lizardi of New Orleans, and not of defendants, with
whom they never communicated. Even if under the circum-
stances of this case there ever existed any liability on the part
of the defendants towards the Newcastle manufacturing com-
pany, it appears to us that the course pursued by the latter has
entirely dischaiged them : 7 Mart. (N. S.) 24.' Upon the ground
of general convenience and the usage of trade, says Stocy in his.
treatise on agency, the rule has obtained that agents or factors
acting for merchants resident in a foreign country, are held per-
sonally liable upon all contracts made by them f Qr their employ-
ers; and this without any distinction whether they describe
themselves as agents or not in the contract. In such cases, it i»
presumed that the credit is given to the agents or factors; and
the ordinary presumption is not only that credit is given to the
agents, but that it is exclusively given to them, to the exonera-
tion of their employers. Still, however, this presumption is
liable to be rebutted, either by proof that credit was given to
both principal and agent, or to the principal only: Story on
Agency, sec. 269. In this case the whole evidence shows thai
1. TFtUioMf T. WlndittUr,
Dec. 1841.] Habt u New Orleans & C. R R Ck). 689
eredit was ezdnsiyely given to the agents, admitting that B. &
J. Phillips can possibly be viewed as the agents of the defend-
ants.
Judgment affinned.
AoTB or SuBAOSMT, WHUT Bnn>iHO: Bnnrmm t. Provkleiiee HtA O^^
7 Am* D60* 68a
Hakf v. Njsw Qbubahb Aim Oabboluion Bail-
BOAD GoMPAmr.
£1 Bouatov, 1T8.)
8lO0mOIJ>«B OF A C0BPOBATION» TBOVOH iHOOMfJlJUrt AS A WXXHBH bk
Iti own behalf » may be oaUed end examined hy the oppoeite party in a
rait against the oorporatinn.
BvooKBOLDKB WHO 18 Callej> AND BacAiONKD as a witneM on behalf of the
plaintiff in a suit against the ooiporation, may be oroia-examined and
testify in favor as well as against his interests upon the matters in ref-
erenoe to whioh he is called.
llBFiJTATloy AKD PuBUO KozoBiRT ABM BvxDSirGK of Ownership in an aotioa
for damages for injuries oaused by the ne^^igenoe with whioh an omni-
bus alleged to be owned l^ defendanti^ was driven.
P&ADrnfv IS Kor Riqitibsd to Show bt Evmavcs that the driver of an
onmibos was not in the employ of a lessee of defendanti^ wbmk the ac-
tion is grounded on the alleged negligenoe of defendants servant* and
the answer contains a general denial only.
Bmplotmb is Liablb lOB THB KiouourcK with whioh a vehide belonging
to him was driven by a servant.
BaponDnjTT of Masxeb foe Sxkvamt's Aov of nsgUgenoe Is not re-
stricted to cases where the master is actually pressal and nads no effotl
to prevent the act which oaused the damage.
AxPBAL. The opinion states the facts.
Boedkta^ for the plaintiff.
T. Sliddl, for the defendants.
Oablahd, J. This action is brought to recover eight hundred
and fifty doUars as damages caused bj the driver of an omnibus ,
alleged to be the property of the d^endants, negligentlj run-
ning it against a carriage belonging to the plaintiff, which was
standing as dose to the sidewalk as it could be placed, in one
of the most public streets of the city of New Orleans; whereby
the carriage was broken to pieces, and nearly or entirely de-
stroyed, and rendered useless. The evidence satisfies us that it
was an act of gross negligence; the jury gave eight hundred
doUars damages; and we should not hesitate to affinn the judg-
Am. Dso. Vox- ZZXVI~44
690 Habt v. New Obleamb & C. R R Ck>. [LouisiaiuK
ment rendered on the yerdict, if the eyidence had made it prob-
able that the omnibus was the property of the defendants. On
that point the testimony does not satisfy ns, and we are oon-
strained to set aside the TSidictof the jvaej, and remand the case
for a new trial. The only eridence of property was the testi-
mony of one witness, who says that he " saw the omnibus going
along with the name of GarroUton written on it." We can not
agree with the jury that this is sufficient or probable eridanoe of
property in the defendants.
On the trial, the plaintiff ofibred Thomas Barrett as awitness,
to prove that the defendants were the owners of the omnibus in
qnestion, to whom objection was made by their oounsely on the
ground that he was incompetent, being a stockholder in the
company, and that he conld not be intenogated except on fads
and articles, which objection was sustained by the court, and
the person so offered as a witness rejected; to which opinion the
plaintiff took his bUl of exceptions. In this we think the judge
erred. A corporation can not offer its stockholders as witnesses
in its own behalf, but a party litigating with it may offer them
as such, if he chooses to rely upon their statements, and they
shoold be receiYed. They axe persons testifying against their
own interest, but do not occupy the position of actual defend-
ants, who must be interrogated on facts and articles. In a suit
against a corporation all tiie indiTiduals owning the stock are
not cited, but only those agents and officers whom the law
designates to manage its affairs; the stockholders may therefore
be called as witnesses, and when once admitted, they may be
cross-examined, and give evidence in favor of as well as against
their interests, on those points as to which they are called to
testify. Our opinion on this portion of the bill of exceptions
makes it unnecessary to decide upon the other parts of it, which
relate to the refusal of the judge to permit the plaintiff to amend
his petition, and to propound interrogatories to Barrett.
The plaintiff then asked A. E. Crane, if it was not within hia
knowledge at the time the damage was done, that the defendants
were generally reputed and known as the owners of the omnibus
in question, and whether it was a matter of public notoriety.
To these questions the defendants objected, on the ground that
it was hearsay testimony. The objection was sustained, and the
plaintiff again excepted. We think the judge again erred in
rejecting this testimony. It was not necessary that the plaintiff
should prove a legal title to the omnibus in the defendants, but
only make out a prima facie right; and it would then rest
Bee. 1841.] Habt v. New Obleans & C. R R Co C91
them to satisfy the juiy that public reputation was wrong, or to
dhow, what would not be very difficult in a case of this kind, that
the omnibus belonged to some other corporation, company, or
individual.
At the time of the trial, the defendants requested the judge to
•charge the jury, that it should be made appear that the per-
son driving the omnibus was in the employment of the defend-
ants, and that they were not responsible for the acts of a driver
employed by a lessee. This the judge refused, and under the
pleadings and evidence before us, we think he did not err. The
answer is a general denial, and it is not pretended that the om-
nibus had been leased or hired to any one. If the case stated
had been before the court, the refusal of the judge to charge
die jury as desired, might have been erroneous; but as it stands
upon the record he was correct. The defendants further asked
the judge to charge the jury, that a principal is not answerable
for tiie wanton and malicious acts of his agent, which he refused
to do. How far we might be disposed to assent to this as agen-
eral proposition, it is not necessary now to decide; but upon the
<»ise before us, the judge was not in error. There is no allega-
tion in the petition that the act was wanton and malicious, nor
is any attempt made to prove it; but that the damage was caused
by the negligence, or want of skill in the driver, or the vicious
temper of the horses, for which the defendants are responsible,
if the horses belonged to them or the driver was in their service.
*rhe counsel for the defendants has seized upon a single expres-
sion in the opinion of the court in the case of OaiUardet v*.
Demaries, 18 La. 490, to sustain his position, without endeavor-
ing to distinguish the facts and outlines of the case from the one
before us.
The defendants also asked the judge to charge the jury, *' that
responsibility only attaches, when the master or employer might
have prevented the act which caused the damage, and have not
done it." This the judge refused, and we do not think that he
erred. The counsel has asked that a part of the article 2299 of
the code be declared to be law, without taking into consid-
eration the sense and meaning of the whole of it. If the law
were such as is alleged, a master or employer could never be
made responsible for the acts of his agents or servants, imless
he were present and did not endeavor to prevent the act which
caused the damage.
In conclusion, we can not forbear repeating, that if the evi-
dence of ownership of the omnibus by the defendants were ren*
692 Habt v. New Oeleans & C. R R Oo. [LooiaaiuL
deied jnrobable we Bhoald certainly a£5rm ibe jndgment, as it is
neoeesazy to let the owners and drivers of pnUic and priTata
carriages^ and other yehides, know that they can not with im-
pnnity violate the law, and endanger the lives and property of
the people quietly passing along the pobUo streets and high-
ways. If the mnnidpal authotitiee will not use the prevsntiva
means under their control, the citizen will hereafter know that
the courts of the state axe open for redress in cases of actoal
damage, and that those who administer the law are flanniWe that
a serious evil mnst be repressed, and are ready to use the power
vested in them to effect it.
The judgment of the district court is tfaerefare reversed, the
verdict of the jury set aside, and the case remanded for a new
trial, with instructions to the judge to admit the testimony of
Thomas Barrett and A. E. Onme, and not to give the charge to
the jury asked by the defendants, and hecetofore refused, and in
other reqpects to proceed according to law; the plaintiff payiog
the costs of this appeaL
LuBOirr or MAsm lOB SsBVAjn^ Aon: Sea ITaniv, Bmu^arta SL. €L
Ox, S6 Am. Dao. 189, In the note to iHdoh the MitiMriftiM ralatfiV to tiik
■objfoot an reviewed at length.
MlMIHM or OOBTOBATIOH ABB BOV OoHnBlBBV WilBlBUB DT BB Bs-
■AWxSoa Wat§m v. /Vflfiriefon^ SI Abl Dw. 48^ and note wrtrfaJng tfw
nportod ia tUs MriM to tUs
OASES
Of TRX
SUPREME JUDICIAL COURT
MAINE.
MABTm t;. Falbb.
dtlAIUUIUEUUI AHB FOWJUUI OV JuVfJUES OV TUB FkACB ftTO dttlifwl CtOIB
stetetcvy pTOTuioiis.
UmAimiro of Wbit akd lascrAirGK ov Subpobitab aro the ooly powen that
om be ezaroiBed by the juBtioe, before the ttmefor trial appointed in the
writ. Alter that time arrives, if the plaintiff fails to appear and proee-
eote, the Jostloe mnst render jndgment for ooets in favor of the defend-
ant; if the defendant fails to appear, jadgment mast be rendered for the
plaintiff; if the Justice &ils to appear at the time, or within a reasonable
time thersafter, the salt fails, except In those oases provided for in the
statate.
Whbbb JigiTHER JxjBnam mob PLADmFr Afpxabs at time and place of
trial, there is a failure to proseonte, which pats an end to all forther pro-
ceedings.
KoTHzvo Less thav Actual Besistavob ob Davoxr can Jostify a court of
Justice in condading that the administration of the law is saperseded,
and that the coarse of jastice most give way to lawless violence.
HxBS Afpbxhinszon ov Futubs Dakokb will not Jxnmwr a jastice of
the peace in disregarding the rales prescribed by law.
Apfxabamgk of Dxibndant, vkdkb PnonsT, at a time to which an ad-'
joanmient of a caase had been improperly had, can not have the efifoot of
reviving process which had failed from the non-«ppeannce of the plaint-
iff at the time named in the writ.
Ebbob to teverse a judgment of a justice of the peace. The
original action was brought by Fales against Martin for neglect
to perform militia duty. The writ was returnable before the
justice on the twenty-fourth of June, 1839. On the twenty-sec-
ond of June, the justice, alleging the existence of great excite-
ment in the neighborhood and his belief that a large armed force
694 Martin v. Fales. [Maine^
had been oiganized to prevent by force the holding of the oonri,
postponed the trial to the eighth of Jnlj following, and posted
notices to that efifect. On the eighth of July Martin appeared^
and denied the power of the justice to take any farther cogni-
zance of the action, and protested against any farther proceed-
ings therein. But his objections were oyerraled and judgment
rendered against him.
W. H. Codman, for the plaintiff in error.
J. Bobnea and H. O. Lowell^ lor the defendant in error.
By Oourt, Sheflkt, J. The jurisdiction and powers of jus-
tices of the peace, axe derived from statute provisions. The
statute authori2dng them to hear and decide certain civil actions,
c. 76, sec. 8, as well as that prescribing the form of write, pro*
vides, that a certain time and place shall be set for the trial; and,
by necessary implication, that the justice and parties shall then
and there appear for that purpose; for it prescribes the duty of
the justice, in case the parties do not appear, and determines
the consequences which are to follow their neglect so to do. If
the plaintiff shall fail to prosecute his suit, the justice is to
award to the party suedhis costo. Andif the defendant neglects
to appear, the charge in the declaration is to be taken to be true,
and the justice is to give judgment against him. The justice ii
not authorized to perform any other duty in the case, than to
grant the writ and issue subpoenas, at a different time from that
set for the trial, either originally or by adjournment. Although
the form of the writ requires the officer to return it to the justice
on or before the day of trial, that does not give him the right to
do more than preserve his writ until the time arrives, when the
law empowers him to act upon it. And if the justice does not
attend at the time and place of trial, or within a reasonable time
after the designated hour, the suit fails, except in those cases
provided for in the statute 1834, c. 101. And so the legislative
department understood the law, when it made provision by that
statute, that, in case of the justice's inability to attend, another
justice might continue the cause. In the case of McCarty v. M>
Pheraon, 11 Johns. 407, it was decided, that the failure of the
justice to appear within a reasonable time after the appointed
hour, amounted to a discontinuance of the suit.
The phrase, '' fail to prosecute," as used in the statute, points
out the effect of an omission to appear for the plaintiff; and it is
made the duty of the justice, in such a case, to regard the suit
as discontinued, or no longer to be prosecuted, and to award
Jvlj, 1840.] Mabhk v. Fajles. 695
costs to the other party. In Spragwe t. Shed^ 9 Johns. 140, it
was decided, that the omission of the plaintiff or any one for him
to appear, was a discontintiance of his cause, and that the jus-
tice had no authority to enter judgment for him. The statutes
in that state and in this are not alike, but decisions upon the
effect of a neglect to comply with the proTisions of law are still
applicable. It does not appear from the record in tins case,
that the justice, or the plaintiff, or any one for him, appeared at
the time and place of trial; and there was a failure to prosecute
the suit, which put an end to all further legal proceedings, un-
less the extraordinaxy circumstances detailed in the record
authorize a different conclusion.
It is contended, that there was an incidental or inherent power
in the court to protect itself from insult and danger, in circum-
stances not contemplated by the law; and that it might adopt
the necessary measures to proride against apprehended danger,
and continue the cause for trial to a time when the danger would
no longer exist. What may be the effectof an order to continue
a cause, when the court is resisted, and by force prevented from
attending at the time and place appointed, it is not now neces-
sary to decide. Nothing less than actual resistance or danger,
can justify a court of justice in coming to a conclusion, that the
administration of the laws is superseded, and that the course of
justice must give way to lawless Tiolence. It were better, if
need be, that personal suffering should be endured by the mem-
bers of a court, than that the administration of the law should
be yielded to an apprehension of danger, not then apparent,
and that an undefined and discretionary power, suited, in his
judgmi^nt, to the occasion, should be exercised by the magis-
trate, while he omitted to be governed by the rules prescribed
by law.
The appearance of the defendant at the time named for an ad-
journment, can not revive the process; nor can it be regarded
as a waiver of errors; for he appeared under protest, and for the
purpose of insisting, that any further proceeding would be
illegal. However desirable to support the proceedings to pre-
vent any one from deriving an advantage by causing excitement,
and producing alarm and the apprehension of danger, the court
must regard such an evil as less than any attempt on its own
part, to bend the law to circumstances, affording, at the same
time, a precedent for the exercise of power not granted. It be^
comes unnecessary to examine the other errors assigned.
Judgment reversed.
696 Weeks v. Patten. [Uainev
Weeks v. Fatten.
£i8]CAZMa,4a.]
Whxbi Ohi has EucnD to Take Benxfigzal larBanr uvdeb Wm^ and
hM reoaiTed the Mine, he oan not afterwardi aet np a olaiin of Ida own,
which wonld defeat the operation of the wilL
ExoEPTiOHS from the ootirt of common pleas. ABsompsit to
recover for the use and occupation of two sevenths of a house
and lot occupied by the defendant. The plaintiff proved that
the premises were part of the estate of Jane Bohinson, deceased;
that said Jane Bobinson married Arthur McLellan, by whom
she had seven chiidren, of whom the plaintiff and Arthur Mo-
LeUan, jun., are two; that Arthur McLellan, sen., occupied the
premises by himself or tenants until his death; that Arthur Mc-
Lellan, jun., after his father's death, conveyed his share in the
premises to the plaintiff. The plaintiff admitted that she had
accepted the provision made for her in her father's will, and
that Arthur McLellan, jun., had done the same. The ninth
item of the will of Arthur Lellan, sen., devised the premises in
question to Thomas McLellan, a brother of the plaintiff. The
third item gave to plaintiff fifteen thousand dollars, and items
ten and twelve devised to her certain real estate. The judge
directed a nonsuit, and the plaintiff filed exceptions.
Prd>ley for the plaintiff.
Adams, for the defendant.
By Oourt, Ehebt, J. It is contended by the defendant: 1. That
no action can be maintained. 2. If any action can be sustained,
assumpsit can not. The items of the will on which the de-
fendant relies, are the third, sixth, ninth, tenth, twelfth,
eighteenth, and nineteenth. The plaintiff claims the benefit of
the first and eighth.
The principle, adopted in courts of equity, is, that if a person,
being about to dipose of his own property, includes in his dis-
position, either from mistake or not, property of another, an
implication arises, that the benefit under that will shall be taken
on the terms of giving effect to the whole disposition. In this
case it is manifest, that, independently of the will, young Arthur
would have been entitled to one seventh, as heir to his mother;
and as to a portion of that seventh, the plaintiff would have
been entitled, as heir to her brother, had he died, had she not
have become the grantee of the whole of it by his conveyance,
It is clear, that if young Arthur had married, and his wife had
April, 1841.] Weeks v. Patten. 697
HnimTed him, she would hare been dowable of that seventh.
For a woman shall be endowed of a seisin in law; as where lands
•or tenements descend to the husband, before entry he hath but
a seisia in law, and yet the wife shall be endowed, albeit it be
not reduced to an actual possession, for it lieth not in the power
•of the wife to bring it to an actual seisin, as the husband may
do of his wife's land: Co. lit. 81 a. But notwithstanding such
might have been the result on such a state of facts, we have to
inquire whether, under the circumstances detailed in the case,
■signed by the counsel, on which the nonsuit was directed, the
plaintiff can sustain her action for the rent of that serenth, and
for another seventh in her own right, and yet avail herself of
what is given to her by the will of her father.
It is in eflidct insisted that acceptance binds and operates for-
feiture without reference to intent. If such is the effect of ac-
ceptance, though in ignorance that it was not competent to
retain both benefits, but that on taking one, the consequence of
law was, she and Arthur renounced the other, then, by inad-
vertence, without choice, an estate might be lost. But in all
cases of election, the court is anxious that a party shall not
avail himself or herself of both their claims, and is desirous
still to secure to him or her the option of either, not to hold
them concluded by equivocal acts, i>erformed, perhaps, in
ignorance of the value of the funds or properiy. The rule
of the court is not forfeiture, but election. And if one is
bound to elect, he is entitled, first, to ascertain the value of the
funds: Wake v. Wake, 1 Ves. jun. 335; WhisUer v. WeMer, 2
Id. 371; HenderY. Bose, 8 P. Wms. 124. And for that purpose
may sustain a bill to have all necessary accounts taken: Bviricke
V. Broadkurst, 1 Yes. jun. 171. An election under a miscon-
ception of the extent of the funds, or claims on that elected, is
not conclusive: Kidney r. Coussmaker, 12 Yes. 136. Was the
plaintiff acting or acquiescing, cognizant of her rights? Did
she intend an election ? Can she restore the individual, Thomas
McLeUan, who forbids the defendant to pay rent but to him,
the one affected by her claim, to the same situation as if her
acts had never been performed, or are these inquiries precluded
by the lapse of time? Bor v. Bor et al,, 8 Bro. P. C. 167;
Simpson v. Vickers, U Yes. 341; 2 Sch. & Lef. 268.* In equily,
the question of election, if doubtful, may be sent to a jury:
Winter v. Levenaaler* 13 Johns. 54; 1 Swans. 860,' and note.
In Bor V. Bor, 8 Bro. P. C. 167, it was held, that where a
1. Moan T. BMiUr. 2, WinUr t. Livingtton. 8. DiUon t. Parkmr.
698 Weeks v. Patten.
testator, making proTision for the different branches of his fam*
ily, gives a fee simple estate to one and a settled estate to an*
other, imagining that he had power so to do, a tacit condition is
implied to be annexed to the devise of the fee simple estate,
that the devisee thereof shall permit the settled estate to go ac-
cording to the will; and if in that respect he should disappoini
the will, what is devised to him shall go to the person so disap-
pointed. It being presumed, that if the testator had known
his defect of power to devise the settled estate, he would, out
of the estate in his power, have provided for that branch of hia
family, who was not entitled to the settled estate; and have de-
clared that no person should enjoy a legacy or devise, who
controverted the power as to any benefit given to another.
However salutary and equitable these rules and decisions may
be in a court of equity, where these questions are usually de-
cided, and where the grand inquiry would be, whether an eleo-
tion induces an absolute forfeiture or only imposes an obligation
to indemnify the claimant, whom it disappoints? Whether a
devisee asserting her rights to properfy of which the will as-
sumes to dispose, must relinquish the whole of the benefits
designed for her and her brother, or so much only as is requi-
site to compensate by an equivalent the provisions which she
attempts to frustrate; for in that court a compulsory election
will be made between inconsistent claims. Yet we apprehend
that there is sufficient already before us to warrant the decision
of this case at law.
It is said, that the rule of election is appropriate to eveiy
species of instrument, whether deed or will, and to be a rule of
law as well as of equity. And the principal reason why courts
of equity are more frequently called upon to consider the sub-
ject, particularly as to wills, than courts of law, is, that at law,
in consequence of the forms of proceeding, the party can not be
put to elect. For in order to enable a court of law to apply the
principle, the party must either be deemed concluded, being
bound by the nature of the instrument, or must have acted upon
it, in such a manner as to be deemed concluded by what he has
done, that is, to have elected: Birmingham v. Eirwan, 2 Sch. &
Lef . 455. This same rule of election applies to every species of
right, and even the right of dower is not protected, more than
any other: 3 Leon. 272;* Ooding v. Warburion and Crispe^ Cro.
Eliz. 128, not overruled. Upon the principle of the doctrine
in the leading cases on this subject — Noyea et Ux, v. Mardauni et
— *■
I. MutUr tmd Baktr't com.
April, 1841.] Weeks u Patten. 699
aL, 2 Yem. 681; TheUusan y. Woodford, 18 Yea. jun. 209; and in
6 CnL, tit. 88, o. 2; and Beed t. Diekerman, 12 Pick. 146— this
court has already acted. The case of AUen t. Pray, 8 Fairf .
188, was for dower. And it was held, that the claim of dower
being inconsistent with the provisions of the will, which, so far
as they were for her benefit, she had not waived, she could not
maintain her action.
And in New Hamsphire, in Edmblett y. EdnMett, 6 N. H.
888, it was held, that a parly, having received a legacy under a
wiU, shall not be permitted to contest the validity of that will,
without repaying the amount of the legacy, or bringing the
money into court, in conf ormily with the rule adopted in the
FingliBh ecdesiastical court. And it was held to apply, even if
the party was a minor when the legacy was received. It is true,
that this was an appeal from a decree of the judge of probate,
approving an instrument as the last will of David Hamblett,
whereupon a trial was had before a juxy, who pronounced in
favor of the saniiy of the testator. And the appellant moved
for a new trial. A motion had been before made by the ap-
pellee, and was again renewed, for a rule on the appellant to
bring into court the legacy which she had received under the
will, which presented the matter as a preliminary question.
The whole case is a very instructive one. ''The rule is as-
serted to be founded in principles of justice, and seems to be
sound law. And it is further said, that, in ordinary cases,
when a party seeks to repudiate a will as insufficient, he must
do so wholly and entirely, by refusing, until it has been estab-
lished, to receive the benefit of it; or if anything has been re-
ceived, by returning it to the executor, or placing it in the cus-
tody of the court, that the executor may have it, in case the
judgment should be against the validity of the will."
The case of Hyde v. Baldwin, 17 Pick. 803, cited by the de-
fendant's counsel, was a bill in equity to redeem a mortgage.
It was held, that whether the plaintiff's right to redeem had or
had not been extinguished by a foreclosure or release in the life-
time of the testator, yet, that the testator intended to remove
all doubt, by requiring a release of all claims against his estate,
and that the plaintiff's release in general terms, refeiring to the
will, must be construed to embrace this right to redeem; and
further, that the plaintiff, by having accepted a beneficial inter-
est under the will, had barred himself from setting up a claim
which would defeat the full operation of the will.
Severe commentaries ore often made on the seeming injustice
700 Weeks v. Patten. [Main^
of parentB, in iheir last wiDs, as to the distribaiion of property
4unong their children. Tet, perhaps, it may with safety be
ikffirmedy that, geneiallj, no person so well understands the real
deserts of children respectivelj, as their parents. The irrepressi-
ble strength of paternal affection prompts them to equalize their
bounty. But the manner in which that bounty shall be best
brought to bear upon the permanent interest of the child, is usu-
jkOj most successfully indicated by the sagacity of the parent
in looking profoundly into the character of the child, and pro-
Tiding against contingencies with almost a prophetic perception.
True indeed it is, that occurrences, subsequent to the death of
the testator, may show the inefficacy of his best intended safe-
.guards. But acting upon what he knows, and sees, and feela,
could he tell all which moves him in his arrangements for the
welfare of his family, he might be able to satisfy the most in-
•credulous of the justice of his designs. Even if we could re-
form the will in this case, the grounds upon which we should
•do so, should we attempt to engage in so unwelcome a service,
are not befor<^ us. No inventory or the result of settled accounts
in the probate office, is made i>art of the case. The will we
have. In the argument it has been said, by the plaintiff's coun-
sel, that on the face of the will, it bears strong marks of prac-
tice on an old broken-down man, and that the plaintiff has in-
-comparably short of her distributive share, and Arthur, jun., if
to be cut off with four hundred dollars, given in trust to H.
nisley, to pay one hundred dollars yearly, from the paternal in-
beritance, and from that which descended to him from his
mother. As the will is proved, we must take it that no practice
was improperly exercised on the mind of the testator. Have we
now before us the evidence that Arthur, jun., and the plaintiff,
for the purpose of this case, have accepted the provisions for
them under the will ? It is most distinctly admitted.
There possibly may be some foundation for the remarks of the
plaintiff's counsel. Still, we know not what was heretofore
bestowed by the testator, if anything, on the plaintiff or on her
husband, or what had before been done for Arthur, the son, or
what were the reasons upon which the testator ordered the dis-
tribution of Uie estate. He certainly exercised only the freedom,
which by law every other citizen could exercise with regard to
the estate with which Providence had blessed him. The mere &ct,
that there may be some inequality in amount, is very far from
impugning the just impartiality or wisdom of the dispositions of
the will.
^pril, 1841.] Obiental Bank v. Freeze. . 701
There is no suggestion of fraud or practice to induce the ac-
ceptance by Arthur or the plaintiff of those provisions. Some
years have elapsed since that acceptance. We have nothing
upon which we can conjecture ignorance of the value of the
property by either. And under these circumstances, according
to adjudged cases on subjects of this description, we must con-
sider that the plaintiff has elected to abide by the provision of
the will, that Arthur has done the same, and that the plaintiff,
coming in under him, must be deemed to have notice of his sit^
nation, and is bound by his election: Ixmg v. Long, 5 Yes. jun.
445. And that they are barred from their claim of the property
against the provisions of the will, which would defeat its full
operation.
Exceptions ovarmled.
Cited in NtwBtigkmd Oar Spring Oo. v. Uwkm TndiaRMer Ob., 6 Bbteht
18, to the point that if a penon acoepts a beneficial intereet under a will, h*
thereby deben himeelf from letting np a claim that will prerent iti full
i!AL Bank v. F;
M I [ii.^u J.i f^ »7.iOi :^)f^ m M M :v/i o
[18 XAna, loe.]
BxEBosPBonvB OrsaATioK WTLL KOT Bx QxvEK TO Statdts ottlNi the in*
tentlon to give it each operation ia clearly ezpresMd.
Ij»I8L4TUBb mat Pa88 Lawb THAT AoT BKraosPBonvxLT where they op-
erate npon the remedies afforded by law for the protection of li^ti of
property^ or for the enforcement of the obligation of contracts, not npon
those rights and obligations themseWes.
Whxbb Statuts Qxvxs Pabtt Bioht to Bioovbb Judomxht js Nathbb or
PlHAiTT, for a snm larger than is jnstiy dne, the right to the amount that
may be so reoovered does not become vested nntil after judgment.
Act or 1839, iob Rxuxr ov Svaims ok Poob Dxbtobs' Bonm, is con-
stitntional.
DsBT on a jaO bond. The oaee was heard on an agreed state*
ment of facts. The condition of the bond was that S. W. and
J. Freeze had been arrested on an execution issued on a judg-
ment in favor of the plaintiffs. In October, 1838, the debtors
made application to a justice of the peace, requesting him to
cite the plaintiffs to appear on the twentieth of October, 1888,
to attend to the disclosure of the debtors. Notice was given to
the attorneys of the creditors in this state, but no notice was
given to the jailkeeper. At the time and place appointed for
the hearing, the justices, having examined the notice and return,.
702 Obiental Bank v. Freeze. [Maine.
and finding them oon«ct> duly administered the poor debtors*
oath to the debtors, and issued to them certificates of discharge.
The plaintiflri contended that' the act of 1839 was unconstita-
tional, being retroepectiye in its operation, and that the defend-
ants, not having complied with the law prerioasly in force,
were liable for a breach of the bond declared on. The defend-
ants contended that the act of 1839 was constitational, because
it did not aflbct the right of action, bat marely changed the
remedy.
FBmenden and DMois, for the plaintiflh
Oodman and Fox, ioft the defendants.
By Conrt, Shkflkt, J. The plaintiflh insist, that the act of
1839, c. 866, ought not to receive such a construction as to aflSdct
their rights in this suit. In Hatltmgs v. Lane, 15Me. 184, it was
stated to be a settled rule of construction, that a statute should
not have a retrospective operation, unless the intention to have
it so operate is clearly expressed. In the act of 1839, such in-
tention is clearly expressed, and it must operate upon the claim
assorted by the plaintiffs, unless there be some constitutional
objection to it. The counsel for the plaintiflri contend, that the
legislature can not rightfully pass a law, which operates retro-
spectively, and that such a law is inoperative. It has been de-
cided, that the clause in the constitution of the United States,
which provides, that no state shall pass any ex po9i facto law, or
law impairing the obligation of contracts, does not prevent a
state from passing retrospective laws, or laws operating upon
vested rights, although a contrary opinion has been at different
times intimated by some of the judges: Satterlee v. HaUhewson,
1 Pet. 413.»
Our constitution carefully guards the right of private prop-
erty, and provides, that it shall not be taken from any one, un«
less the public exigencies require it. This does not, however,
prohibit the legislature from passing such laws as act retrospec-
tively, not on the right of property or obligation of the contract,
but only upon the remedy which the laws afford to protect or
enforce them. The l^fislature must necessarily possess the
power to determine, by law, in what manner the person or prop-
erty of a debtor shall be subjected to the demands of a creditor;
and of making alterations in such laws, as a change of circum-
stances, or the public good; may require. And in doing this,
one may be deprived of a right which he has by existing laws
1. t Pot. 880.
April, 1841.] Oriental Bane v. Freeze. 703
to arreet the body, or to attach, or seize a certain description
of properfy, without infringing any constitutional provision.
When a person, by the existing laws, becomes entitled to reooTer
« judgment, or to have certain real or personal estate applied to
pay his debt, he is apt to regard the privilege, which the law
afifbrds him, as a vested right, not considering that it has its foun-
dation only in the remedy, which may be changed, and the privi-
lege thereby destroyed. It was decided in Potter v. SturdivarUf
4 Greenl. 164, that the legislature might mitigate the severity of
« penalty, and award to the party injured, as much as he de-
aerved, in equity and good conscience, to receive. And in The
People V. Livingston, 6 Wend. 526, that the legislature possessed
the power to take away by statute, what was given by statute,
except vestied rights. And when a party, by the statute provis-
ions, becomes entitied to recover a judgment in the nature of a
penalty, for a sum greater than that which is justly due to him,
the right to the amount, which may be so recovmd, does not
become vested till after judgment.
In Ogdeh v. Saunders, 12 Wheat. 262, Ifr. Justice Washing-
ton thus states the result of his examination: ** It is thus most
apparent, that whichever way we turn, whether to laws affecting
the validity, construction, or discharges of contracts, or to the
evidence or remedy to be employed in enforcing them, we are
met lyy the overruling and admitted distinction between those
which operate retrospectively and those which operate prospec-
tively. In all of them, the law is pronounced to be void in the
first class of cases, and not so in the second." And Marshall,
O. J., in the same case, 849, says: ** In prescribing the evidence,
which shall be received in its courts, and the effect of that evi-
dence, the state exercises its acknowledged powers. It is like-
wise in the exercise of its legitimate powers, when it is regu-
lating the remedy and mode of proceeding in its courts."
The bond in suit was taken to secure to the plaintiffs, the
benefit of that part of the remedy for the recovery of a debt,
which the laws afforded them by an arrest of the body of their
debtor. And it was competent for the legislature to refuse any
such remedy, or to impart it under such restrictions and modifi-
<sations as it thought proper, and to change them at pleasure.
By the act of 1839, the legislature does not impair the obliga-
tion of the contract, or deprive the plaintiffs of any vested
right. It in effect provides, that a different description of evi-
•dence shall be received, as proof that the obligors have fulfilled
ihat part of the condition of their bond which required them
704 TuKET V. Smith. [Maine^
to give notice of an intention to take the oath, not Tnalring ii
eflTeotoal, howeyer, to bar the obligees from the reooTeiy of such
damages as thej had actually suffered. The fiicts agreed do not
prove, that the plaintiflfs have sustained any damages; and by the
agreement, a nonsuit is to be entered.
BsTBOSFaomnE Laws: See Olark v. dark, 34 Am. Deo. 165, note 173^
Tkinnp9on ▼. ^SicAZater, 33 Id. 666; Heplmm ▼. Ovrtt, 32 Id. 760, note 762;
IkwU ▼. Minor, 28 Id. 326, note 333; Aldridge v. TuacmMaete. R. R. Co.,
23 Id. 307, note 319; PeyUm ▼. Smith, 17 Id. 768, and note to BUah^ ▼.
Farmen and Mtdhaniaf Bank, Id. 637, where other caeee in this aeries er»
collected.
Tbat OoNSTKConoir ov Statuti is to bb pRxnnuua> that best hnrmoniaes
with the oonstitation: Bloodgood v. Mohawk Jklf.JLR. Cb., 31 Am. Deo.
313; Davis v. Minor, 28 Id. 326, note 323; note to Bleakne^ v. /Virmers and
Mechanici* Bank, 17 Id. 637, where other cases in this series are oolleoted.
Tkx fbikgepal casb is orrxD in Cohen v. Wright, 22 GbJ. 310, to the poinV
that all statatory priyileges are sabject to the control of the leglsbtava^ nn*
less they are in the natore of contracts or vested ri^^ts of proper^.
TUKET V. SbOTH.
[18 XAna, us.]
SHSBorF's Ruf OVAL FBOM OfnoB DOBS KOT Abatb ms BioHT to retain pos-
session of property previonsly attached by him, to await Judgment an^
ezecotion, nor will it exonerate him from neglecting to deliver it op to
be taken nnder execution, after demand made for it within thirty dayr
after final Judgment
EzoEpnoHs from the Western district court. The action ma^
farooght against the defendant, who had been sheriff, for the de-
fatdt of one of his deputies in failing to keep and deU-ver certain
boards and logs that had been attached by him on a writ in favor
of the plaintiflFfl. PlaintiflFs proved a demand upon the depuiy
for the property, within thiriy days after final judgment in the-
suit, and a neglect to deliver it to be taken on the ezecntion.
The defendant offered to prove that he was removed from the
office of sheriff prior to the entry of judgment, bat the judge-
rejected the testimony, and directed a verdict for the plaintiffi*.
Band, for the plaintiffs,
WiUia and Fessenden, for the defendant
By Court, Emebt, J. If the judge in the district court re*
jected testimony, which, if admitted, would have constituted a.
defense against the action, the exceptions must be sustained,
it is probable the idea of taking the ground, on which the de>^
April, 1841.] TuKET V. SMrra 706
fendant relies, arose from some remarks of the court in the case
Blake y. Shaw, 7 Mass. 505. But in the present case, we must
apprehend, that after the attachment was made, and while the
defendant was in office, there was negligence, to the injtiry of
the plaintiff. The law invests the sheriff with power to attach,
and imposes on him the duty to keep the properfy attached, to
respond the judgment which may be obtained in the suit. His
removal from office abates nothing of his power to retain the
possession of the property, which he rightfully took upon the
original writ, for thirty days after judgment, for the ultimate
purpose, for which he began the service. To be sure, he can
not, when removed, serve an execution issuing after his removal;
but the special property remained in the deputy to secure the
plaintiffs in the fruits of their judgment, if seasonably required:
18 Mass. 394.' The offer, by the defendant, to prove that he
was removed from the office of sheriff previous to the recovery
of judgment in the original suit, if permitted, we think would
be altogether inadequate to exonerate the defendant from re-
sponsibility for the acts and omissions of his deputy.
The exceptions are therefore overruled.
POWKB Ain> DUTT or ShXBIFF AFTBR ExraiATIOK OV BJB OmOEAL
TlBM. — ^A nhentt, who, dnrixig his tenn of o£Boe, has oommenoed the Mryioe
or ezecation of prooesa, is empowered and anthoriied to go on and complete
its ezeoation, even after the expiration of his official term: Oleri ▼. WUken,
1 Salk. 322; S. C, 6 Mod. 290; Doe v. DonaUm, 1 Bam. & Aid. 230; Sewell's
Law of Sheiifb, 253; Crocker on Sherifils, 232; Freeman on Executions, see.
291; Lawrence v. siee, 12 Meto. (Mass.) 527; Welsh y. Jay, 13 Pick. 477|
Slkin V. People, 3 Scam. 207, anie, 541; BeUmgaU v. Dtmean, 3 Qilm. 477|
People V. Boring, 8 CaL 406; Allen v. Trimble, 4 Bibb, 21; S. C, 7 Am. Deo.
726; Ptarl v. DwvaU, 5 Har. & J. 69; S. C, 9 Am. Dec 490; State y. Boberte^
7 Halst 114; S. C, 21 Am. Dec 62; Oraine v. Hardy, 1 Mich. 66, 61; .8mm
V. IfaU, 2 Mete (Ey.) 247; Satminet w. HaxweU, 26 La. Ann. 960; Ne¥h
num y. BechoUh, 61 K. Y. 205; C^arh v. Pratt, 55 Me. 546; DooHttU v.
Bryan, 14 How. (U. 8.) 663; Miner v. Caeaat, 2 Ohio St. 198; Oibbes y.
MUcheU, 2 Bay, 120; Cooper v. Chitty, 1 Burr. 34.
In the case of Clerk v. WWiera, I Salk. 323, Holt, C. J., said: "The old
sheriff has not only authority, bat is bound and compellable to proceed in
this execution; for the same person that begins an execution shall end it»
and a dietringae nuper vieeeomitem lies. Of these there be two sorts; one is
to distrain the old sherifiT to sell and bring in the money; the other to sell
and deliver the money to the new sheriff to bring it into court: which plainly
shows his authority continues by virtue of the first writ." This doctrine is
universally accepted in this country as the doctrine of the common law on
this subject. In the case of Lctwrence v. Bice, 12 Mete (Mass.) 533, Shaw,
C. J., delivering the opinion of the court, said: " It seems to be a well-settled
rule of law, a rule of the common law, recognized and confirmed by statute,
that when an executive offioer has begun a service, or commenced the per-
1. Bend ▼. Pwlc^onL
Am. Dso. Vol. ZZXYI— 45
706 TuKET V. Smith. [Maine»
formance of a daty, and thereby incurred a responsibflity, he has the aathor^
ity, and indeed is bound, to go on and complete it, although his general an-'
thority, as such officer, is superseded by his removal, or his derivative author-
ity terminated by the termination of the office of his prindpaL Hia au-
thority attaches by tho oommenoemeut of the service, and will be superseded
only when it is completed, whether it be a longer or a shorter time." The
principles here stated are fitlly sustained by the American authorities abovu
cited. And in Smith v. Bodfish, 39 Me. 136, it was decided that a deputy
sheriff who attaches property on mesne process, is bound to keep it for thirty
days after the judgment, and deliver it on demand to any officer having the
execution, and authorised to receive it, notwithstanding he ceased to be a
deputy after the attachment and before judgment.
LiABiUTT FOB NiOLiOT TO CoMPLKTB EzBOOTioN. — As the ez-sheriff has
the powei^ to complete the execution of all process which he had as sheriff
begun to execute, so he is liable for failure or neglect to perform his duty in
this respect: SiaU v. RoberU^ 21 Am. Dec. 62. And where a deputy sheriff
attached goods on a writ, and afterwards neglected to deliver them, when
legally demanded, to satisfy the execution, the sheriff was held liable for this
neglect of duty on the part of his deputy, although at the time it happened
neither he nor his deputy was in office: J/otm v. Bettoti, 2 N. H. 184. But
in Ifewman v. BeekwUh, 61 K. Y. 205, it was decided, that where a sheriff
dies and his under-sheriff goes on and completes the unexecuted process,
the latter will be liable for his own negligence, not the personal representa-
tives of his deceased principal.
Whebb Shebifv has Letibd ok Pebsonal Pbopkbty, all the authorities
agree, that he not only may, but must go on and sell the property levied
upon and apply the proceeds to the satisfaction of the judgment, even after
he has gone out of office. And a considerable number of cases hold th^t there
is no distinction in this respect between levies upon personal property and
levies upon real estate. According to these authorities, a sheriff who, during
his term of office, has levied upon real estate, is the proper person to sell it,
although he may have gone out of office, and also to execute the deed there-
for to the purchaser: Lqfland v. Ewing, 5 litt. 42; S. C, 15 Am. Dec. 41;
Lemon v. Craddock, Lit. Sel. Gas. 261; S. C, 12 Am. Dec. 301; Purl v. Du-
vaU, 5 Harr. & J. 60; S. C, 9 Am. Dec. 400; AUen v. TrimbU^ 4 Bibb, 21;
S. C, 7 Am. Dec. 726; Edwardt v. TipUm, 77 K. C. 222; Jackaim v. Coliiw,
3 Cow. 89; CoyUa v. Higgins, I Duv. 7; Evans v. AMey, 8 Mo. 183; Peo-
ple, V. Boring, 8 CaL 406; ArUhmvy v. Westd, 0 Id. 103. And in the case
last cited it was decided, that the new sheriff could not execute the deed,
where the sale was made by his predecessor. One reason given for the rule,
that an ex-sheriff must go on and complete the execution of process which he
has begun to execute, b, that *'an execution being an entire thing, he who
begins it must end it:" Purl v. DuvcUl, 9 Am. Dec. 491. In case of a levy
upon personal property, another reason, and, it seems to us, a better one, is,
that by the levy the officer acquires a special property in it, which continues
after his removal from office. Now, as this latter reason does not apply in
case of a levy upon real estate, some of the American courts have held that
the new sheriff is the proper person to make the sale and to execute the convey-
ance: Bellingall v. Duncan, 3 Gilm. 477; Bank of Tenneeaee v. BeaUy, 3 Sneed,
306; Clark v. Sawyer, 48 Cal. 133; LetfAey v. Gardner, 3 Watts & S. 314.
In discussing this subject, Treat, J., in delivering the opinion of the court
in BellinghaU v. Duncan, 3 Gilm. 480, after referring to the rule in reference
to levies on personal property, said: "There is an essential difference in the
April, 1841.] TuKEY V. Smith. 707
ease of a levy on real estate. The land remaiiiB in the poeaeasion of the
debtor, not only until the day of sale, but until the time allowed him by law
to redeem has expired; and even then the sheriff can not divest him of the
posaeerion, but the purchaser is driven to his action of ejectment to recover
it. The oommon law authorities being confined to sales of personal property,
we consider ourselves at perfect liberty to adopt such rule in relation to sales
of land on execution, as we may deem best adapted to the circumstances of
the country and the interests of its citizens. There seems to be no good rea-
son why the sale should be confined exclusively to the sheriff making the levy;
but, on the contrary, there are some cogent reasons why his successor should
be permitted to do it. It is wholly immaterial to the debtor which of them
is to make the sale. He is equally protected in either case. Much inconven-
ience may arise if the new sheriff is not allowed to complete the service of
the process commenced by his predecessor. The old sheriff may die or re-
move from the bailiwick before he has sold the land, and if his successor is
not allowed to make the sale, the creditor may be greatly delayed and injured
in his remedy. In order to give the new sheriff any authority to collect
the judgment, he might be compelled to have the levy set aside, and in
that way lose the benefit of the lien acquired by the levy. His lien might
be defeated for the want of an officer authorized to enforce it. In the case of
a levy on personal property, the creditor might have a remedy on the official
bond of the sheriff; but in the case of a levy on land, he might have no effec-
tual remedy. We are disposed, therefore, to decide that the new sheriff may
sell real estate levied on by his predecessor in office. The sale by either
would be valid. Where the execution has been returned with an indorsement
of a levy on real estate^ and the creditor desires a sale, he may at his election
sue out a vmdUioni exponaSf directed to either the sheriff who made the levy,
or his successor in office. Where the sheriff retains the custody of the execu-
tion, the vend* should be directed to him; or the creditor may procure the re-
turn of the process, and then direct the vendi to the new sheriff. It is the
opinion of the court that the sheriff in office when the sale took place, had
ample authority to make it, and that his deed vested in the purchaser what-
ever title the judgment debtor had in the premises at the date of the levy.**
The following authorities hold that the process, in the case of real estate, may
be executed either by the old or the new sheriff: Holmes v. Afclndoe, 20 Wis.
689; Sumner v. Moore, 2 McLean, 59; TarkhUon v. Alexandei-, 2 Dev. & B. 87.
At common law, real estate was not subject to sale on execution, and
therefore the doctrine we have been considering could have no application
to it. In 1833, a statute was passed in England, providing that, on going
out of office, the old sheriff should deliver to the incoming sheriff all writs
and other process not wholly executed, and that the bitter's reeeipt therefor
should be a good and sufficient discharge of and from the further charge of
the execution of such writs and process: 3 and 4 Wm. IV., c. 99, sec. 7.
In Missouri, it is provided by statute that the sheriff who levies may turn
over the writ to his successor, or retain it and go on with the sale: Kcme v.
McOown, 55 Mo. 181. And in North Carolina the statute provides that,
where a sheriff, or coroner, has sold real or personal estate, and goes out of
office before executing conveyances, he may execute the same after his office
expires, and, if he dies or removes from the state, his successor shall execute
them. But it seems, independent of statute, that where a sheriff has levied
upon property, and dies before the sale, his personal representative may
make the sale: Bead v. Stevens, Coxe, 264; SanderMn v. Bogers, 3 Dev. L. 38.
708 Osgood v. Da via [Mame^
Osgood v. Davkl
(18 HaZHS, li6.J
Pabol Evidui cx is vot Admissible to Add to or Vast ths Msanino of the
terms of • written contract; and can not, therefore, be received for the
yuipoee of showing that a written assignment on the ban^ of a oerti-
fioate of stock in a corporation, of "all the right, title, and interest" of
the asngnor, was accompanied by a warranty of good title.
Exceptions from the Western district court. The declaration
alleged that the defendant had undertaken and promised to
convey and assign to the plaintiff one share of the capital stock
of a stage company, and twenty fifty-fifths of another share,
and that he did make and execute a pretended conveyance and
assignment thereof, but that at the time of said pretended as-
flignment, said defendant was not the proprietor of said shares,
the same having been long before sold to another person to pay
assessments. The form and effect of the assignment and writ-
ten contract sufficiently appear from the opinion. The plaintiff
offered to prove by parol all the allogations set forth in his wzit»
but the judge rejected the offar, and directed a nonsuit, to whieh
the plaintiff excepted.
Easiman and Soward, tat the plAinfiff
Carter , for the defendant.
By Court, SmEPiiKT, J. The rule of law which excludes parol
eridence, tending to contradict or Taiy a written contract, may
sometimes permit the crafty to take advantage of the ignorant
and negligent; but the propriety of adhering to one of so much
importance and usefulness, is but little lessened by such a con-
sideration. The writing on the back of the certificate of share
numbered sevenfy, signed by the defendant, does not purport
to sell or assign the share itself, but only the right, title, and
interest which the defendant had to the share. It is such a
writing as one, who had held the share only for a special pur-
pose, and who, after that purpose had been accomplished, in-
tended to part with whatever of title he received, might properly
sign. It would seem to have been drawn with the design to ex-
clude any inference, that he warranted the title to the share, for
it is langfuage become familiar by being frequently used in con-
veyances, where there is no intention to warrant the title.
Parol evidence is inadmissible to prove the intention of the par-
ties to have been different from that expressed in writing, and
thereby to alter the legal operation of a written instrument.
In PatoeU v. Edmunds^ 12 East, 6, such evidence, tAnd^i^g to
April, 1841.] Osgood v. Davis. 709
prove, that an auctioneer warranted, that a lot of timber, de-
scribed in the written conditions of sale, would amount to eighty
tons, was excluded. And in (XHarra v. Hdtl^ 4 Dall. 340,
where a bond was assigned in general terms, it was decided,
that parol evidence could not be received to prove, that the
assignor agreed to guarantee the payment of it. To admit parol
evidence in this case to prove, that the bargain was for a good
title, would be, to change the apparent intention of the parties,
as disclosed in their written contract, as well as to vary and
alter the legal construction of it. This case is not like that of
a sale by a bill of parcels. Such a writing was considered, in
Bradford v. Manly, 13 Mass. 142 [7 Am. Dec. 122], as designed
to state the fact simply, that a sale had been completed, with-
out intending to state the terms of the contract, and the parol
evidence was not regarded as contradicting or varying the act
of the parties existing in writing. To permit the parol evidence
o&red in this case, would be like permitting it to vaiy the
quantity or description of goods contained in a bill of parcels.
The contract relating to share numbered eighty, states, that a
part of it had been sold; and it then proceeds to state, specific-
aUy, the obligations which the defendant assumed in relation to
it. A sale, in the proper sense, could not have been intended,
for no actual transfer of a part could take place. The share
could not be divided, nor could the plaintiff control or sell the
portion. The design must have been, to give the plaintiff the
beneficial interest in a part, and the terms upon which the de-
fendant became liable to account for that beneficial interest, are
stated in the contract. In attempting to make the defendant
account to him for that interest upon different terms, the plaint-
iff must meet difficulties similar to those, which have been stated,
respecting the sale of the other share. In stating the offer to
prove, by parol evidence, all the allegations set forth in the writ
and declaration, it must haye been understood, that the money
count was for the same cause of action as the other counts, and
there would exist the same objections to a reception of the testi^i
mony under that, as under the other counts.
The testimony was not offered to prove, that the defendant
knowingly made false and fraudulent representations in relation
to the title, to induce the plaintiff to enter into these contracts
Exceptions overruled.
Parol Bvidbitcx is not Aomissdlb to Vast WmrTXir AaxoMEsm
Foley V CawgiU, 32 Am. Deo. 48; J&nea v. Harde$^, Id. 180; Hale ▼. Hemie,
27 Id. 289, note 296, where other cases on this sabject in the series ue ool-
leeted.
710 Palmer u York Baitk. [MaJni^
Palmeb v. York Bajsol,
[18 1CAm»168.)
DKLUunov or Pihal AonoK vboxtld Alliob that the fAots ehaxged an
aipdnat tha f om of the atatnte upon which the aotioD is haaed.
BuauT* Qimro Foubiold Intkbist bt Wat ov Daicaob is Pbztal in iti
ohamcter; bat where the damagea are givea to the party injured, wbio
aeeka reoorery of a joat debt to which the inoreaaed damagea are madean
incident, inch action ia not properly to be regarded aa a penal one.
Whxbb Statotb Qivbs Pbval Damaoxb to PiLBTT Injubxd, in a caae whece
he had before a remedy at oommon law, if he daim anch damagea, he
moat do ao by a reference to the atatnte.
OvB Who would Hold Bakk Lllblb iob Pbhal Damaobb, given by atatnte
for n^leot to make payment in apede, on demand or within the time
limited, moat diatincUy claim anch damagea in hia dedanttion.
PtAivnw WILL KOT BB Allowbd TO AxBVD HIS DBOLABATioir after the de-
fendant haa been defaulted and theoanae haa beenaigned npon the enai-
Ingooonta.
AoraoH brought to reoorer fourfold intereet by way of damages,
against the defendants, for neglecting to pay gold or silTer for
certain bills of theirs, on demand. The declaration contained
one count for money had and received, and seyeral other counts,
setting forth the bUls of the bank, and alleging presentments
thereof at the bank at different tunes during the suspension of
specie payments by the New England banks in 1887 and 1838.
A few days prior to the resumption of specie payments by those
banks, the bank tendered to the plaintiff the amount of the Inlls
and six per cent, interest, together with a sum to cover any ex-
penses. The plaintiff refused to receive the money and brought
this action. The money tendered was brought into court on the
first day of the term. The defendants were debulted, and en-
tered a prayer to be heard in damages. The plaintiff took tha
money out of court, claiming a further sum to the extent of
twenty-four per cent, per annum. The other facts sufficiently
appear from the opinion.
Preble f for the plaintiff.
Mellen and J. Shepley, for the defendants.
By Court, Weston, 0. J. In none of the counts in the plaint-
iffs declaration, ia there any reference to the statute, upon which
he claims to be allowed fourfold interest by way of damages.
If this falls within the class of penal actions, the current of au-
thorities requires that the facts charged should be averred to be
against the form of the statute upon which it is based. The
statute, upon which the plaintiff relies, calls the twenly-four
April, 1841.] Palmeb u York Bank. 711
per cent, damages it imposes a penalty. A sixnilar statate in
Massaohnsetts is called by the court highly penal^ in the case of
The Suffolk Bank y. The Worcester Bank, 5 Pick. 106. As it
giyes four times as much damage as is allowed by law for the
detention of the other debts, it is certainly penal in its char-
acter. But as it is giyen to the party injured, who seeks the re-
coreiy of a just debt, to which these increased damages are
made an incident, we are not satisfied that it is to be regarded
properly as a penal action. In Beed t. Northfidd, 18 Id. 96 [23
Am. Dec. 662], a similar point was raised, and the authorities
bearing upon the question were examined, to which we refer,
without deeming it neceesaiy to cite them in detail. Shaw, 0.
J., who deliTcred the opinion of the court, takes a distinction
between an action brought for damages given by statute to the
party injured, and an action for a statute penalty, eo nomine.
The action then under consideration, was for double damages,
sustained by a defect in the highway. The chief justice says:
** In the present case, we think the action is purely remedial,
and has none of the characteristics of a penal prosecution. All
damages for neglect or breach of duty, operate to a certain ex-
tent as punishment; but the distinction is, that it is prosecuted
for the purpose of punishment, and to deter others from offend-
ing in like manner." And it was held by the court that the
averment that upon the facts charged, and by " force of the
statute in that case made and provided," the town became liable,
was sufficient.
In Bayard v. Smith, 17 Wend. 88, which was an action for
damages by the party injured by false weights, given by statute,
the court held a general reference to the statute sufficient. And
in a note by the reporter, he states that a general reference is
all which can be required in such cases. If this is necessary,
where the action is founded altogether on a public statute, of
which the court take judicial notice, it would seem to be still
more necessary, where there is also a concurrent remedy at
common law. In trespass by one tenant in common against
another for treble damages, a reference to the statute, which im-
poses them, has always been deemed indispensable. So in ac-
tions against the sheriff for fivefold interest, for not paying
over money collected on demand, averments of his liability to
this extent under the statute, are inserted in the declaration.
And wherever penal damages are given by statute to the
party injured, where he had before a remedy at common law, we
are of opinion, that if he would claim the statute damages, the
712 Paxmeb v. York Bank. [Maine^
weight of aathoriiy reqnireB, that he should do so by a reteis
enoe to the statute. If the plaintiff had aTerred the liability of
the defendants to pay the fourfold interest, we should ha^e been
more strongly inclined to haye got oyer this technical objec-
tion. But he sets up no such liability. The legal assumpsit,
upon which he declares is, that in consideration of the previous
ayermentB, the defendants promised to pay each bill, according
to its tenor. Facts are set forth, upon which a liabiliiy to in-
creased damages under the statute might arise, but such liabil-
itj is not charged, nor any such claim made by the plaintiff.
With eveiy disposition to sustain a law, which has been
deemed wise and salutary, and has repeatedly reoeiyed the
sanction of the legislature, both in Massachusetts and in this
state, we feel constrained to decide, that if a plaintiff would
ayail himself of its provisions, he should set forth distinctly
and affirmatively the extent of his claim. How much forbear-
ance the holders of bills might reasonably be expected to prac-
tice, under peculiar circumstances, each must decide for him-
self; but if he would hold a bank to the payment of the penal
damages, given by statute, it can not be regarded too much to
require, that he should distinctly claim them in his declaration.
If he does not, it is not unreasonable, that he should be re-
stricted to the measure of damages, which the law accords to
other creditors.
In The Suffolk Bank v. T7ie Worcester Bank^^ a question was
presented about the penal damages. The declaration contained
only a count for money had and received; but it was submitted
to tiie court upon a case stated. Their attention was not called
to the form of declaring.
The plaintiff has moved for leave to amend, if necessary. We
do not deem it reasonable to grant it in this stage of the pro-
ceedings. The defendants have been defaulted upon the dec-
laration, as it stood. The plaintiff has been paid princii>a] and
legal interest. The case has been argued upon the existing
counts. And we do not feel justified in allowing them to be
amended.
In Pxnal AcnoNs Avkbmbnt that Act was Dozn AOAnrar Fqbm o»
Statuts Ib neoeesuy: Reed v. NcrU^fiM^ 23 Am. Deo. 062.
1. SPIok. 108.
May, 1841.] Nichols u Patteic. 718
NioHOLS V. 'Patien.
(18 KAzn, 281.]
flALB OF PttaoKAL FfioPXRTT IS CoMPLKn, and no tabaeqimt fonnal do>
Uvwy thereof is neoeeaary, where, from the date of the fafll of nle» the
property oontfamed to be on land, or in boildinga, m the exeliiaho p(»
■ewion and oontrol of the vendee.
OomnBTANOB TO Dbibaud Guditobs is BnrDZNO on the paitiea thereto^
who can not aet up, againat eaoh other, the frand on the creditora; and
the Tondee who loeea liia title by the acta of the vendor may leoover
againat him. The vendor may, therefoEO, be a witneaa either to defeat
or to aoBtain soohoonveyanoe, hia intereet being a balanoed one in either
To OOWBTITUTB ATTAOIfMBlIT, OVFIOBB KbBD NOT AOTUALLT HAIffPfiB tho
goods attaohed; bat he muat be in view of them, with the power of oon-
trolling them, and of taking them into poaaeeaion.
BafDBar aw QmoBB, whbbb Hb ib ▲ Pabst, ia manilj pHma/ack evidenee
of an attaohment.
To Pbbsbbvb Atzaohmbiit, Owicbb mubt BBXAZir hxb Ck>BTBOL and power
of taking immediate poaaeaaUm. If he faila to do thia, the attachment
will be regarded as abandoned.
Mbbb Bbqubst Madb bt Qvfiobb to ▲ pBBSOir TO OiYB NoncB that prop-
erty has been attached, ia not anffident to ahow that he acted for the
officer, nnleaa he oonaented to aaamne the tmat of taking charge of the
property for him.
F^PBBTT UNDEB AtTAOBMBNT MAT BB CONVBTBD BT TBM DbBTOB, anb-
ject to the attachment. And any merely formal act of delivety which
does not interfere with any right of the officer in relation to the property,
will not aabject the pnrchaaer to an action by the officer.
Abt Act which Depbivbs Ovucbb or Gontbol or Attaorbd Pbobbbtt
will anbjeot the person who doee it to an action for anch property.
Fbaud will not be Pbbsumed, and the boiden of proof to eatabliah it la
upon the party who alleges it.
Tbbspass for a quantity of saw-mill gearing. The plaintiif
called one Wheeler as a witness, who testified that he met the
plaintiff on the morning of Januaiy 16, 1837, coming from the
mill where the property in question then was; that plaintiff told
him that he had attached the property there, and requested him
to forbid any one to take the things away; that witness did not
promise to do so; that he was not appointed keeper of the pro])-
erty; that he did not receipt for it nor promise to keep it; that
he worked about the mills until February 4, when he left. The
otLer facts sufficiently appear from. the opinion. The verdict
was for the plaintiff, subject to be set aside.
J, W. Bradbury and IhUman, for the defendants.
MUchell and Chroton, for the plaintiff.
By Court, Shepley, J. Both parties claim the property undec
714 Nichols v. Patten.
William B. Rogers; the defendants as pnzcbaseiB by a bill of
sale executed on the fourteenth of January, 1837, and the plaint-
iff by an attachment made by him as a deputy sheriff on several
writs on the sixteenth of the same month. It appears from the-
testimony, that the property was on the land or within buildings
belonging to the defendants, and that after the bill of sale
Bogers no longer had possession or control of the lands or
buildings, but that they were within the exclusive control of
the defendants or their agent. The sale was therefore complete
before the attachment, and the formal delivery or Tnarking ou
subsequent days was unnecessaxy: Carringion y. Smxthy 8 Pick.
419. Their title would be good if the sale was Ixmafide and for a-
valuable consideration. This was denied and the plaintiff called
Bogers as a witness, and he being objected to was permitted
to testify, that the design in making the bill of sale was to pre-
vent an attachment of the property by his creditors. Bogers,
having on the twenfy-fourth of March preceding entered into a^
contract to build a dam and mills for the defendants, had pro-
ceeded to accomplish the undertaking, and had received ad-
vances earlier and beyond the amount due, and made the bill of
sale of the materials provided, as the defendants allege, to se-
cure them for such advances. The position of the witness waa
like that of a vendor of i>ersonal property, who having received
his pay for it, testifies to a fraud between himsftlf and the vendee,
and thereby enables his own creditors to apply the property to-
the payment of his debts, thus securing to himself the benefit of
it twice. It is said, that his interest is still balanced because he
thereby incurs a new liability to the vendee, who may recover of
him on the contract of sale the value of the property.
In the case of Bailey v. Foxier y 9 Pick. 189, it was decided,
that one thus situated would not be a competent witness for the^
purpose of proving the fraud. The decision appears to rest
upon the position that the vendor having received payment, and
testifying in such a manner as to enable hifl creditor to apply the^
properfy to the payment of his debts, obtains the value twicer
without noticing that he would thereby incur a liability to re-
fund to the vendee. In the case of Rea v. Smith, 19 Wend. 293,
it is admitted, that such liability would arise, but it is denied
that he would be a competent witness, because it is said the^
vendee could not recover against him on the contract of sale for
two reasons: 1. Because his title would not be destroyed by one^
paramount and so the case would not come within the warranty;
and 2. Because to make out his case against the vendor he must
May. 1841.] Nichols v. Patten. 715
Qeoessarily pxx)ye a fraud in both the parties to £he contract and
thereby place himflalf in pari delicto. When a creditor recovers
against the vendee, he does so because the law regards him as
having the better title. And the vendee loses his title through
the fault of the vendor in neglecting to pay his debt and thereby
extinguishing the creditor's prior right to have the property ap-
plied in payment of it. It is not clearly perceived why the
creditor's should not be regarded as the paramount titie; or why
the vendor, who has caused the title of the vendee to be defeated,
has not by that act violated his contract assuring the titie to the
vendee. If this be the true position of the parties, the first ob-
jection would prove insufficient to prevent a recovery. The
second objection is to be examined. The statute of 18 Eliz., c.
5, from which we derive our law respecting conveyances fraudu-
lent as against creditors, provides, that only against creditors
and others whose actions shall thereby be de&auded or delayed,
they shall be of none effect; leaving them impliedly valid as re-
spects the parties to them. The case of Haioes v. Leader ^ Oro.
Jac. 270; S. 0., Yelv. 196, decided that the deed remained good
against the parties, though void as to creditors. And this was
recognized as a correct exposition of the statute in the case of
Osborne v. ifoss, 7 Johns. 161 [5 Am. Dec. 262].
In Drinkwater v. Drinkwater, 4 Mass. 357, Parsons, 0. J.,
says: " A conveyance to defraud creditors is good against the
grantor and his heirs, and is void only as to creditors. For
neither the grantor nor his heirs claiming under him can avail
themselves of any fraud to which the grantor was a party te
defeat any conveyance made by him. The intention of the law
in establishing this principle is effectually to prevent frauds by
refusing to relieve any man or his heirs from the consequences
of his own fraudulent act." In EandaU v. FhiUipe, 8 Mason,
388, Mr. Justice Story, speaking of such a conveyance, says: '' It
is good as between the parties, and binds them and their privies.
It may be avoided by any third persons, whose interests are in-
tended to be defeated by it, -but it is not absolutely void. The
general doctrine is, that a conveyance in fraud of the law binds
parties, and can not be acted upon, so far as respects them as a
nullity." According to these authorities the conveyance remain-
ing good and binding upon the parties to it, they can not set up
the fraud upon creditors against each other, and the doctrine in
pari delicto, does not apply; and the vendee losing his titie by
the acts of the vendor may recover against him. The vendor
716 Nichols v. Patten. [Maine,
therefoxe may be a witness as well to defeat as to sustain the
conveyanoe, his interest being a balanced one in either case.
To constitate an attachment, it ia not necessary that the officer
should handle the goods attached, bnt he must be in Yiew of
them with the power of controlling them and of taking them
into his possession. And in case of an attempt by another
to interpose or take possession, he should take such measures
as to prevent it, unless resisted. The return of an officer
where he is a party is prima facie eridenoe, and only so, of
an attachment: Bruce y. Hbtderiy 21 Pick. 187; Bias t. Badger,
6 N. H. 393. To preser^ an attachment when made, the
officer must by himself or his agent retain his control and
power of taking immediate possession in all those cases in which
the property is capable of being taken into actual possession,
unless our statute estabUshes, as it does in certain cases, a dif-
ferent rule. If he does not do this, the attachment will be re-
garded as abandoned and diBsobred: Sanderson t. Edwards, 16
Pick. 144.
The application of these principles to the present case, as now
presented by the testimony, would decide that the attachment
might be sufficient, if followed by the continual presence of the
officer or of some one on his behalf. There is no evidence of
any continued control or of any attempt to retain it, unless
Wheider can be considered as undertaking to act for the officer.
The mere request to Wheeler to give notice would not be suffi-
cient unless he consented to assume the trust of taking charge
of the goods for the officer. His acts and declarations taken
together place him in a position so equiyocal that the jury
should decide whether he did consent to act for the officer, and
if so to what extent he did so act and continue the officer's con-
trol oyer the property. There can be no doubt that he ceased
to have any such connection with it as would preserye the at-
tachment after the fourth of February . following. If the de-
fendants had not interfered against the rights of the officer or
his keeper before that day, the plaintiff can not recover. And
so far as they had before that time resisted and taken from his
or his keeper's control any of the property, to such extent he
may recover. It becomes therefore proper to examine their acts
in relation to the property after the attachment. An attach-
ment does not deprive the debtor of the right to convey his
property subject to it, and any merely formal act of delivery,
which does not resist or deprive the officer of the actual
control of it, is no violation of his rights, and will not sub*
May, 1841.] Newall v. Hussey. 717
jeci the purchaser to an action by the officer. It does not
occasion any injmy or depriye him of any right: Bigelaw
T. WWson, 1 Pick« 492. Nor would the continued operations
of the mechanics upon the property, if not objected to by the
officer or his keeper, be considered as a trespass against him.
But any act whatever which deprired the officer or his keei>er of
the control or remored any portion of the property from the
place where he chose to hare it deposited, would subject them
to an action for such proi>erty. The principle that fraud is not
to be presumed and that the burden of proof to establish it is
iqpon the parly alleging it, was recognized by the court in the
case of BlaMdl t. OoweU, 14 Me. 870.
It is not perceired that the court can properly come to any
more definite conclusion upon the rights of the parties without
the assistance of a jury, to which the matters of &ct must
again be submitted. Yerdiot set aside and a new trial granted.
dted in Arwy ▼. Fani^, 08 Man, 121, m cvwraUng 8mUh ▼• HM$9
IViirlTL
JfuAwnuan OovTWTAxnm d Good, except m agiinst the gnntor^ ored-
iton: JlieOee v. OampbeU, 32 Am. Deo. 783L
Attacbiixnt, Lx¥t of, What SuvnanBivT: Bee Siaie ▼. Poor, 84 Am. Dec
887; TramUor. I^ord, Slid. 484, note 480, where other oeaee in this seriee
Are ooUected.
F&AiTD D KOT TO BB PBaBUiiBD: DtmB V. Odhfert, 26 Am. Dea 282; and
huiden of proving it is npon him who allegea it: Tcwtqf t. Skook, Id. 108.
Newall v. Hubset.
[18 lUXKM, MO.]
Br TAXDro Nsqoiiablb PBomsaoBT Noxq fob Dbbt Dvb on Aoooum;
the debt ie, in this state, considered as paid, and the contraot eztin-
gnished. The note, in such case, is evidence of a new oontraot, nnless
the oontrary appears, and must be a new canse of action.
▲hbndmbnts Intboducino Nxw Gausi of Action are not permitted in
onr practice. And although the allowance of amendments, in cases
where they are allowable by law, rests in the discretion of the judge of
the district court, and will not be revised by this court, yet if the Judge
allow an amendment which the law does not authorize, the party affected
has a right to except.
EzcEPTiOKs to the Middle district court. The declaration was
only on an account annexed to the writ. After the action had
been entered, and seyeral times continued, the plaintiff, under |
general leave to amend, offered as amendments: 1. The money
718 Philbrice v. Preblk [Maine.
«oimt8; 2. Insimtd computassent ; 3. A cotmt on a note giyen
bj the defendant to the plaintiff. The jodge allowed the plaintiff
to file a eonnt for money had and reoeivedy and one ux>on the
note, and to this allowanoe the defendant ezoepted.
J. 8. JbboU, for the defendant.
Beed, for the plaintiff
By Oonrt, Sbkbust, J. By the law of this state, a debt dne
on aoconnt is considered as paid, and the contiaot extinguished
by taking a negotiable promissoiy note for the amonnt. While
the common law regards it only as security for an existing debt,
the note is here evidence of a new and different contract, unless
the contrary is made to appear. The letter of the defendant,
under date of the twenfy-first of November, does admit that the
note originated from the account sued ; it does not, however , rebut,
but rather confirms the presumption of law, that it was receiTed
in discharge of the previous contract. If the original contract
no longer existed after taking the note, it would seem to follow
that the note must be a new cause of action. And so it has
been decided to be in Massachusetts, where the like rule of law
prevails: Vandeef v. Therasson, 3 Pick. 12. In our practice,
amendments are not permitted to introduce a new cause of ac-
tion. It is within the discretion of the judge of the district
court to i>ermit amendments in all cases where by law the writ
or declaration is amendable; and this court does not revise that
exercise of discretion. But if an amendment be permitted,
which the law does not authorize, the party has a right to ex-
cept. This amendment must be regarded as unauthorized, be-
cause it introduces a new cause of action.
Exceptions sustained, and plaintiff nonsuited.
Takiko Notb vob P&s-KXi8TiNa Debt: See Bstaie qfDaou^ 94 Am. Deo.
£74; Home$ y. Smyth, 33 Id. 660, note 052; HtUckhis v. OlcuU, 24 Id. 634^
note 640, where other ca9e8 in thia Beries are collected.
Amxndmxnt Ghakoino Ghabactsb or AonoN not Allowxd: See Aier>
mm V. WUsomf 34 Am. Dec 695, note 697. where other caaee are coUaoted.
Pbilbbiok v. F&eblel
[18 llAXMtm, 256.]
AWABD NOT IK WrITINO MAT SB QOOD UNLESS IT INVOLTIS TiTLB tO f«l]
estate, but if it does involve such title it la void.
Where Part of Award is Qoov and Part is Void, the whole will be
treated as void, if the void part and the good part are so connected thai
justice might not be done by permitting the latter to have effect.
May. 1841.] Harrington v. Fuller, 719
EzGSPTxoira from the Middle district court Trespass for an
assault and battexy. The plaintiff, by consent, became nonsuit,
iritii leave to file exceptions. The other facts sufficiently appear
from the opinion.
Sandleti, for the plaintifll
F. AUen, for the defendant.
By Ck>urt, Sheplbt, J. It appears from the bill of exoeptiona,
that the dividing line between the lands of the parties had been
in dispute; that the plaintiff attempted to remove a part of the
fence on to land occupied and claimed by the defendant; and
that this occasioned a personal conflict. The parties agreed by
a writing under their hands and seals to refer '^ all disputes and
quarrels or differences that now exist respecting the establishing
the line or partition fence/* and all other disputes, to referees.
The referees thus selected heard the parties, decided upon the
line, and made their award verbally to the parties, with which
they declared themselves satisfied. If the award had been in
writing, it might have bound the parties, although it decided
upon a difference respecting real estate. And an award not
involving the title to real estate may be good without being re-
duced to writing; but the title to real estate can not be affected
by any agreement or award not in writing. If the award was
void as to so much of it as related to the real estate, the court
can not decide that it was good so far as it related to the per-
sonal injury; because one or the other of the parties might be
more or less in the wrong according to the decision which
should be made respecting his title to the real estate. When
the part of an award, which would be otherwise good, is so con-
nected with that which is void as to show that justice might not
be done by permitting it to have effect, the whole will be void.
Exceptions sustained.
(Xted in Byam t. Bobbins, 6 AUen, 65, to the point thftt title to reel estete
oftQ not be affeoted by any agreement or award not in writing.
Pabol Abremmmst to Submtt to ABBIT&4T0B8 question toaohingtitle to
laade can not be enforced : Stark y. Ccumady, 14 Am. Deo. 76ii
Habbinoton v. Fvllbeu
[18 iCAzn. an.]
Bbiriit a BisroNsiBLE fob all Official Aoib of ms Dbpott, Imt not for
neglect of any duty which the law does not require him ofilcially to per*
form.
720 Uabbington u Fuller. [Maixie»
Biuauy BmAX9B Lxabui vob FBonaerr Wbobotullt Taksh bt hz»
Bkputt, and sold, so long as the property in the goods taken or tfa»
money received from their asle remains unchanged. Bat when the owner
of the goods soss the depnty for the trespaai, reooveri jadgment^ and
takes oat execation against him, the |goperly in them beeomea ckaogedv
and the depaty no longer holds in his official capacity, bat in his own
ahaolnte rights and the sheriff is no longer responsible.
Ga8B agaiiust the defendant as late sheriff, for default of
dapaiy. The deputy attached andsold certain goods
to the plaintiff. The plaintiff soed &e depaty for the trespass,
recoyered judgment, and took out execution against him, and a
portion of the judgment was paid. This action was farought to
reooTer the unpaid balance from the defendant. There was no
evidence to show that the defendant had had any connection
with the action brought by the plaintiff against the depuiy. The
plaintiff had never made any demand for payment from the de-
fendant until the day before the suit was commenced.
AbbM and E. W. Farley, for the plaintiff.
H. O. Lowell, for tiie defendant.
By Ckmrt, Sbeplbt, J. It is admitted that the ji^^w^^ can
not recover on the first count for taking his goods. If tbem
ireie no other objection, the statute of limitations is a perfect
bar. He claims to recover on the second count for the neglect
of the deputy to satisfy the judgment recovered against him.
The sheriff is responsible for all official neglect or misconduct
of his deputy; and also for his acts not required by law, where
the deputy assumes to act under color of his office. He is not
responsible' for the neglect of any act or duiy which the law
does not require the depuiy officially to perform: KncwUon v.
BarOeU, 1 Pick. 270; Cook v. Palmer, 6 Bam. & Cress. 739. It
is said, that the deputy held the money received for the goods
in his official capadiy, and of course, that his neglect to pay it
over in satisfaction of the judgment recovered against him was
an official neglect. While the property in the goods or moneys
received by the sale of them remained unchanged, the depuiy
held them in his official cajiaciiy. After the plaintiff had re-
covered judgment against him in trespass, and had taken out
execution and collected a part of the amount so recovered, the
property was changed. It was no longer held in an official
character. It became a part of his own estate.
The defendant would be liable for the original act of taking,
and also for any neglect to keep safely so long as the property
June, 1841.] Johnson v. Whttefield. 721
xemained unchanged; bat after that time the deputy might do
what he pleased with his own, and his superior would have no
right to take it from him, or to complain of his acts respecting
it. There being no money in his hands after that time, held in
his official capacity, his neglect to pay it oyer was not an official
neglect, for which the defendant is liable. The counsel for the
plaintiff would avoid this conclusion, by urging that the right
of property was transf exred to the deputy in his official charac-
ter, and that placed a fund in his hands in the like character to
pay the judgment recovered against him. He could not, how-
ever, in his official capacity acquire the absolute property in the
goods. It is the act of the plaintiff, not the act of the law alone
in connection with his own acts, which has occasioned his be-
coming the owner in absolute right of property. The plaintiff
can not, by his own voluntaiy act, transfer the property from
himself to the deputy, and stiU insist that such absolute prop-
erty is held in an official capacity. As soon as the special prop-
erty, which he held as an officer, was, by the election of the
plsjntiff, changed into an absolute title against all persons, the
custody ceased to be official. The debt due for it became his
own private debt by the plaintiff's own election; and the de-
fendant ceased to be responsible for any after act or neglect of
the deputy.
Plaintiff nonsuit.
amttiyF^fci Ltatohtt loa his Parwiln Aam Sea^onfrtg v. JgOh^ 20 Am,
Deo. 218»iioto228» whneoUMroMMinthiaMtiMaTOOoUaofeed
Johnson v. Whceefielix
[18 ILmix. 286.]
Omznm bavs Biobt to Travsl over whols Widtb ov Hiohwat with-
oat bafaig ral^eoted to other or greater dangers than may be presented
fay natiml obstacles, or those oooasioned by maUng and repairing the
traveled path.
Towv D Liable vob Damaobs arising from its having allowed tlie sides of
the traveled path d a public highway to be inonmbered with logs pr
other things mmeoessarily placed there.
PLAnmnr oav not Bacx>VEB ior Injubus Sustaihsd fay reason of his
own fault or neglect
Oasb for injuiy sustained by the plaintiff by reason of a defect
in the public highway in the town of Whitefield. On the trial,
it appeared that the plaintiff was driving a horse in a chaise
along the traveled part of the road, when the horse kicked one
Am. Dxo. Vol. XXXVI— AS
722 J0HN80K V. WUITJSFIKLD. [Maill6b
ct his hind legs oyer the shaft of the chaise. Plaintiff tazned
him out of the path, in order to relieve him from the siiaaiion
he had thrown himself into, when the horse, beooming nnmaa-
ageaUe , ran the chaise against a cedar log lying near the traveled
pari of the highway, which was the immediate cause of the in-
jnxy. There was a verdict for the plaintiff, sal^eot to be set
Wdl8 and OhOd, tor the defendants
No appearance for the plaintiff.
By Oonrt, Sbepuet, J. It is contended, that the owner of
land adjoining a public highway may lawfully use that pari of
it, which is not prepared for the public travel. His ownershqp
and right of use so far as may be consistent with the rights of
the public need not be questioned. But it is a mistatft to sdp-
pose the public rights of travel are restricted to the prepared
and usually traveled path. While the town has done its duty,
when it has prepared a pathway of suitable width in such a
manner, that it can be conveniently and safely traveled with
teams and caxxiages as required by the statute; the citasena az»
not thereby deprived of the right to travel over the whole widfli
of the way as laid out. And tiiey have the right to do so without
being sul^ected to other or greater dangers, than may be pre-
sented by natural obstacles, or those occasioned by Tnaking and
repairing the traveled path. In many parts of the highways
these obstacles are small, and in others very great. To allow
the sides of the prepared path to be incumbered by logs or other
things unnecessarily placed there, would deprive the citizens of
the use of the whole width of the way or subject them to un-
necessaiy dangers not contemplated by the laws. It may be-
come necessaiy to place obstructions upon the sides of it for the
purpose of preparing or improving the traveled path by the
removal of trees or stones and the like. Beyond this all such
obstructions are nuisances, and as unlawfidly there, as thej
would be in the traveled path. If the accident had happened
through the neglect or fault of the plaintiff, or by reason of
any obstacle naturally existing or necessarily placed in the high-
way out of the traveled path, he could not have recovered; bat
this is negatived by the finding of the jury. The driver may be
subjected to injury with the most prudent management by a
vicious or irritated horse, without any just ground for complaint
against the town; but in such cases he can not justly be sub-
June, 1841.] Jones v. Jokes. 723
jected to the increased danger occasioned by obstacles/ which
exist only through the illegal act of another person.
Judgment on the verdict.
Cited In Browning v. SpringfiM, 17 HI. 146, m to when eMi damegei may
be reocwretied agiinst a monicipal corporation.
Jones v. Jones.
(18 HAxn, 806.]
XabbiajOX SoLUCiaziD BY Person Holdivo Ovficbs or Jusncm of the
peace and Judge of a municipal court is l^gal, and where the oertifioate
i8 eiknt aa to the capacity in which he acted in performing the cere-
mony, the law will aasome that he acted in the capacity in which he
might lawfully perform it.
Statutb or THIS State Giymo to One Judge JuBioDionoir in caaee of
divorce, glTce him Jnriadiction in qneetions of alimony.
DiomoN or Judge, in Such Gases, on a Question or Fact, can not he a^
pealed from, bat la aa condnaive aa the finding of a Jury.
Intant Win MAT Maintain Suit roB Divoboe, in her own name^ without
acting by goardian or next friend.
General Wobds in Statute must BaoBiVE Gsneeal Oonstbuowon, nnleis
there be something in it to restrain them.
LmsL for a dirorce from bed and board for the alleged cru-
elty of the husband. A diyoroe was decreed. The other faoti
snfficiflntly api)ear from the opinion.
Olarky for the respondent.
WhiUemore, for the libelant.
By Courts Shkplit, J. Several objections were taken to the
proceedings in this case. The first is, that the parties were not
legally married. The act establishing a municipal court in the
town of HalloweU, stat. 1835, c. 146, provides, that the judge
shall have exclusive and original jurisdiction within that town,
over all such matters and things as justices of the peace for that
county may by law take cognizance of and exercise jurisdiction
over. Mr. Oilman, who married these parties, held that office,
and also that of justice of the peace for the couniy, and was
duly qualified. He might lawfully many them as a justice of
the peace, unless he was deprived of that power in consequence
of his exclusive jurisdiction as a judge. He does not state in
what capacity he acted in performing the service, but the law
will regard him as acting in the capacity in which he lawfully
might perform the duty. It may well be doubted, whether the
724 Jones v. Jones. [Maine»
terms cognizance and jurisdiction do not refer to such matios
only as are of a judicial character, leaving other duties to be
performed by justices of the peace. But whatever construction
the act may receive, the marriage will be legal.
Another objection is, that one judge has not jurisdiction to
decide upon a question of alimony. The act regulating di-
vorces, stat. 1821, c. 71, speaks of questions of divorce and ali-
mony, while that giving the jurisdiction to one judge, stat. 1838,
c. 310, speaks only of questions of divorce. That alimony in
our law is regarded as an incident to divorce, is apparent from
the provision of the statute, c. 71, sec. 5, which creates a lien
on the estate of the husband for the performance of any order
which the court may make in a suit for divorce. A division of
the jurisdiction would be a virtual repeal of that provision.
The legislature could not have intended to give jurisdiction over
the principal question to one judge, and require the co-opera-
tion of a majoriiy in the minor one of alimony, at the same
time depriving the party of the intended securiiy to enforce a
decree in his favor. The act giving this jurisdiction provides,
that any person aggrieved at the opinion of said justice, upon a
question of law, may file his exceptions to the same. The lan-
guage of the act, and the design of the legislature in passing it,
clearly indicate the intention that there should be no appeal
from a decision of the judge upon a question of fact. His de-
cision is as conclusive as the finding of a jury, and is no more
open for revision by the court of law.
Another objection has reference to the capaoiiy of the infant
wife to maintain this process. Before the stat. 21 Jac. I. , c. 13,
if an infant plaintiff or defendant appeared by attorney and
not by guardian or next friend, it was error. That statute
cured the defect on the part of the plaintiff after verdict; and it
became necessary to plead in&ncy in abatement: 2 Saund. 212,
and notes; Schemerhom v. Jenkin8, 7 Johns. 873; Dewey v. Pel,
11 Pick. 268. In this case the counsel for the libelee sub-
mitted a written motion that the libel should be quashed or dis-
missed becttfuse it was not prosecuted by guardian or next
friend. Considering the nature of the process this may be re-
garded as equivalent to a plea in abatement. And in the case
of Wood V. Wood, 2 Paige, 108, it was decided, that an infant
should so prpsecute or defend in a suit for divorce. That decis-
ion, however, apx)ears to have been founded upon the provisions
of the statute and upon the rules of practice established there:
Wood V. Wood^ Id. 454. An infant may at common law bind
June, 1841.] Jones v. Jones. 725
himflftlf and others in many cases. He has ability and may hiw-
folly bind himself by an aot for his own benefit: Chtich ▼.
Parwns^ 8 Burr. 1801, and of this description the law regards
the marriage contract. Before the statute of 88 Geo. m., c.
87, an infant at the age of seyenteen might be an executor and
zeceiTe moneys and give acquittances. A female infant can law-
fully contzact marriage, and in doing it can bar herself of
dower, and dispose of her personal estate: Earl of Bw^htngham'
Axre V. Drwry, 3 Bro. P. 0. 570;" Harvey v. AsUey, 3 Atk. 618.
So she may maintain a suit on a promise of marriage: HoU t.
Ward, Fit^bbon, 175; Id. 276: HoU ▼. Ward, Stra. 987.
Whether an infant executor could sue without a guardian or
next friend occasioned a difference of opinion. The right to do
so was admitted in RuJCUmd y. BnUand, Oro. Eliz. 878; Bade y.
Siarhey, Id. 541; Coon y. Bowles, 1 Show. 165; Foxwist y.
Tremaine, 2 Saund. 212. And denied in Cotton y. Weacat, Cro.
Jac. 441; Keniston y. Frishobaldi, Fitzgibbon, 1.
There would seem to be an inconsistency in allowing the acts
of an infant executor to be legal, and at the same time subject-
ing him to the control of a guardian or next friend, while in
the act of performance. If the law permits a female in&nt to
enter into the marriage contract, does not the larger include the
less power, and enable her to do any act which may be neces-
sary to its perfection, or may arise incidentally out of it? And
is it not upon this principle that she is allowed to bar herself of
dower and dispose of her property by such a contract? Will
the law enable her to assume the duties and acquire the rights
of support and protection which that contract giyes, and refuse
to her the power of enforcing those rights? Is the right to
shield herself from the oppressiye and cruel acts of the husband
less incident to, or conneieted with the contract, than dower or
the disposal of personal effects ? But whateyer may be the con-
clusion at common law, the language of the statute, c. 71, sec.
5, regulating diyoroes of this description, is general, enabling
any wife, without exception as to age, to file her libel and ob-
tain relief. And general words in a statute are to receiye a gen-
eral construction, unless there be something in it to restrain
them. So inflexible was this rule considered, that the statute
of wills, 82 Hen. VULL. , haying authorized all and eyery person or
persons to deyise their lands, it was feared that it might enable
infants and insane persons to do it; and the statute 34 Hen.
Yin. was passed to introduce these exceptions: Beckford y.
■I I I *
1. Zom€k T. Pamoni. i. Earl of Buckingham t. Drury, 3 BfOb P. 0. 493.
726 Ellis v. Bealk
Wade, 17 Yes. 88. The same principle was leoQgnized in the de-
cision, ihat the statute of fines, 4 Hen. YII. , c. 24, bound infants:
Stowell T. Lard Z&uch, 1 Plowd. 369. It is admitted to apply to
statutes of limitation: Demarest t. Wynkoop, 3 Johns. Ch. 12^
[8 Am. Deo. 467]. The statute regulating divorces should ac-
cordingly receive such construction as would enahle any
without r^gar^ to age, to institute such aprocess. And the
sons which would lead the mind to clothe her with that power
by the common law, may justly be brought in aid of such a con-
struction*
Decree confirmed as to divorce, and as to alimooy it b
•earved for furUier beazxDg.
■
Elub t;. BakUL
[X8 1lAin,S8T.)
BiODro oia HoMB-VBomNO is ▲ Qamm wiMn the stetBto *'to pn»
Vint gMiiDg for moiMy w otoAr property. Axid iiMHMy lost oy iMtttni^
on a trottiiig matoh may bo raeovwd baok by the Iomt. lbs stefeata^
with iwpeet to the party loaing, Is rwnedial, not penal.
Bxoimoira from the Middle district court The action was
brought to recover back mon^ lost by the plaintiff in betting
on the speed of a horse.' The plaintiff offered to prove that he
had bet with the defendant; that the money had been deposited
with a stakeholder, and that he had paid it to the defendant as
the winner. The judge excluded the evidence, on the ground
that the facts stated, if proved, would not support the action.
The plainti£P filed exceptions.
WeOa and Morrill, for the plaintiff.
Mxy, for the defendant.
By Court, Weston, 0. J. The question, upon which this
cause must necessarily turn is, whether horse-racing is a game,
within the stat. of 1821, o. 18. If it is, there can be no just
distinction taken, between the trotting and racing of horses.
And we are of opinion, that horse-racing is a game; and so
within the statute. Cards and dice are expressly named. '' Any
other game," embraces a great variety of other devices of chance
or skill, by which money may be lost or won. Cock-fighting,
horse-racing, and foot-racing are called games, by the statute
16 Charles U., c. 7. Under the statute of 9 Anne, c. 14, al-
though horse-racing is not mentioned, it has been held to be
June, 1841.] Prrra u Mower. 727
embraced in the aot» tinder the general words, oiher game or
games: Blaxtan y. Pye, 2 Wils. 809. So a foot-race has been
adjudged to be a game within the same statute: Brown v.
Berkeley, Cow. 281. In Sisid y. JM, 8 Stark. 1, Abbott,
C. J., was of opinion, that the statute applied to all games,
whether of skill or chance, and that it was the playing for
money, which made them unlawful. The statute with respect
lo the party losing, is remedial, not penal: Bones v. Booth, 2 W.
b1. 1226. Horse-racing is within all the mischiefs, which ren-
der gaming unlawful.
Exceptions sustained.
HoBsa-BACPro n a Qamb; Sea BkropMn t. GVeuooei^ 31 Am. De& IM.
Petib V. MOWEB.
(1811100,861.)
Ddomsdbs €(» Twama, afd Judomert upon rr asm ksaamsKM In •?!•
deaoe, only between thoae who ace parties to the rait.
Whkrs Aoxnt Sxlus ma Piungipal's Goods avd Takxs PBomasoar
NoTB therefor, payaUe to himifllf, the principal may, before payment,
forbid it to be made to the agent, and a payment to him after this wiU
not be good.
PanrciFAL mat Sub ih his own Namb on a oontraot of nle made by hii
agent, nnlew rach oontraot has been eartingnished, as it may be with ns,
by taking a negotiable pronuse.
ExGEPnoNS from the Middle district court. Assumpsit on an
account annexed, charging a ** horse power." The evidence
showed that Hiram A. Pitts was the plaintiff's agent in selling
articles called horse powers, and sold one to the defendants,
taking therefor their note running to himself, and payable in
specific articles. A copy of the judgment and disclosures of the
defendants as trustees of Hiram A. Pitts were read in evidence
by the defendants, against the plaintiff's objection. The judge
charged the jury, that if they found that Hiram A. Pitts was the
plaintiff's agent, and had authority to take a note running to
himself, the plaintiff could not recover. Plaintiff excepted*
The other facts appear from the opinion.
Welh and May, for the plaintiff.
H. A, Smith, for the defendants.
By Court, Sheflet, J. It has been decided that the disclo-
sure of a trustee and the judgment upon it are to be received in
728 French v. Camp. [Maine^
eyidence only between those who are parties to the suit: Wise
V. HiUon, 4 Greenl. 435. In this case the plaintifiF was not a
party to the suit in which the disclosure was made, and he is
not bound by that judgment. When an agent sells the goods
of his principal and takes a promissory note payable to himself,
the principal may interpose before payment, and forbid it to be
made to his agent; and a payment to the agent after this will
not be good. And the principal may sue in his own name on
the contract of sale, except when, as with us, it is extinguished
by taking a negotiable promise. It is said in argument for the
defendants, that the law will not imply a promise where there
is an express one; and that there being an express one in the note
to Hiram A. Pitte, one can not be implied to the plaintiff. The
law regards the express contract made with the agent in the
purchase as made with the principal, and as remaining unex-
tinguished by the note not negotiable. These rights of the
principal are well established, and were recognized in the cases
of TUcomb Y, Seaver, 4 Greenl. 642, and Edmond v. Caldwell, 15
Me. 840. In this case the defendants were notified before
payment, or judgment against them as trustees, that the plaint-
iff was the owner of the property sold, and that he claimed to
have the payment made to himself. If they thought proper to
disregard that notice, the rights of the plaintiff can not thereby
beinpaired.
Exceptions sustained and new trial granted.
Whsn PaiirciFAL mat Sub on Comt&act Mads bt hib Aosht: See BeAm
▼. BcbeH^ 27 Am. Deo. 132, note 137; TnU ▼. Brmon, 15 Id. 33; AtUtiQkm'w.
HUkU, 12 Id. 704| note 700; Giratrd y. Taggart, 0 Id. 327. note 385.
Fbenoh v. Camp.
[18 ItAim, 438.]
All Pkbsons havb Bight to Tbavel on Igb ovbb Pubuo BnrBB. end
any one who oate a hole in the ioe, in or near the traveled way on sodi
ioe, is liable for injories sustained by those passing over said way, with-
out fault or negligence on their part.
AcmoN on the case. The declaration alleged that, owing to a
hole cut in the ice on the Penobscot river by the defendants, the
plaintiff lost his horse by drowning, he having faUen into the
river through said hole. The jury found for tiie plaintiff, and
the defendants filed exceptions. The other fttcts appear from
the opinion.
Jane, 1841.] French v. Cahp. 729
J. Appldon, for the defendants.
McCrillis, for the plaintiff.
By Court, Weston, 0. J. The waters of the Penobscot are,
<of common right, a public highway, for the use of all the citizens.
This right is generally exercised when they are in a fluid state;
but when congealed, the citizens have'still a right to traverse
their surface at pleasure. Travelers have occasion to cross that,
and other public rivers or streams, upon the ice, at points where
public ferries have been established. And certain duties are by
law imposed upon ferrymen, to aid the public in the enjoyment
of this right: Stat. 1825, c. 292. And it is matter of general
notoriety, that in all the settled parts of the state, public rivers
and streams, not broken by falls or rapids, are traversed up and
down upon the ice, in* such well-marked and beaten ways, as are
most convenient for the public. They are not proper subjects
for the application of the statute laws, provided for the location
of public roads or highways; nor are they susceptible of being
governed by the rules and principles by which easements of this
kind may be otherwise acquired on land. Yet we do not hesi-
tate to regard them as public rights, so far under legal protec-
tion, as to entitle a pariy to a civil remedy, who is wantonly and
unnecessarily disturbed by others, while attempting to partici-
pate in their enjoyment.
It is contended, that the defendants had an equal right to cut
a hole in the ice, to water their horses or other cattle, or for
other purposes. Assuming that the defendants have as good a
right to the use of the water, as the plaintiff or the public gen-
erally had to the right of pasisage, the use of a common privilege
should be such as may be most beneficial and least injurious to
all who have occasion to avail themselves of it. To cut a hole
in the center of a road upon the ice, or so near it, as to entrap a
traveler, is a wanton and unnecessary disturbance of the right
of passage. It is making an improper use of a part of the river,
lawfully appropriated, for the time being, to a different purpose.
It is a direct violation of that great principle of social duty, by
which each one is required so to use his own rights, as not to
injure the rights of others. With the common bounty of Provi-
dence, accessible to them at all points below the surface of the
ice, the act of the defendants, in subjecting the plaintiff to loss,
to whom no fault can be imputed, and who was in the lawful ex-
ercise of his rights, can not be justified; and in our opinion, they
must be held answerable for iJie damage they have occasioned.
Judgment on the verdict
730 Greeley u WAXEBnouss. [Uaine^
Greeley v. Watebhoubb.
[iOMAxva.0.]
Valid BonoiCBT Bonds mat bb Exsoutxd bt thx Owvn of a tmtoI a*
the home port* if the money obtained thereon is given on maritime
riake, and at the hacard of the lender, although not applied to the pur*
poaea of the ahip or of the voyage.
Bboitkd CoN8n>nuTioH or ▲ BonoMKT Bond may be inqoirod int^ and
contradicted by the creditora of the owner of the veaaeL
UintBOOBDXD MoBTOAQB OF ▲ VxssBL IB INVALID, according to the atatate of
1899, c 390, onleaa delivery and poaaeaaion accompany the mortgage.
Bbflbtin for the brig Albert and two thirds of the hng Wat-
Bon. The eTidence disclosed the facts that prior to October 26»
1839, Lather Jewett was indebted to plaintifb in an amount ex-
ceeding seren thousand dollars, for monqr advanced; that on
that date he executed bottOQiry bonds on the above vessels to
plaintiflffl, to secure such indebtedness. The bonds recited that
the sum of thirty-six hundred dollars had been advanced on
the brig Albert, and two thousand dollars on the brig Watson,
but in fact no new consideration was paid. The defendant
justified as sherift under a writ in favor of the Exchange bank
against Jewett Defendant's counsel objected to the plaintiffs*
testimony, but consented to a default, if, in the opinion of the
court, the plaintiffs were entitled to recover. If so, judgment
was to be for them; if not, the default was to be taken off, and
plaintiffs were to be nonsuited.
Band, for the defendant.
Fesaenden and D^lms, for the plaintifis.
By Court, Wbston, 0. J. The plaintifis, as acceptors, having
paid the bills indorsed by O^rge Jewett, he had no remaining
interest or liability in relation to them, and was clearly a com-
petent witness. And the interest of Luther Jewett is balanced
in . the case, it being a contest between bona Jide creditors of his
for security. The objection made at the trial to the testimony can
not prevail, and is not pressed by the counsel for the defendant
The doctrine in relation to bottomry and respondentia bonds is
very elaborately considered and exhausted by Mr. Justice Story,
in Gonard v. Tfie Atlantic Ins. Company, 1 Pet 386, and in the
Case of the Brig Draco, 2 Sumn. 157. He investigates, with his
accustomed ability, their origin and history, illustrated by ad«
verting to the authorities, English and American, bearing upon
the question, as well qb to the works of distinguished jurists on
the continent of Europe. It is very satis&ctorily made out that
April, 1841.] Gb£Ele7 v. Watebhouss. 731
they may be ezeouted by the owner of a ship at a home port»
and that their validity does not depend upon the application of
the money, when obtained by the owner to the purposes of the
ship, or of the Toyage. But it is of the veiy essence of a bot-
tomry bond, that it is for money taken up on maritime risks, at
{he hazard of the lender: Case of the Draco^ supra; Sinumds ei
al. T. Hodgson, 8 Bam. & Adol. 60.
The instruments upon which the plaintiflh rely, copies of
which make part of the case, are based upon loans apparently
of this character. Nothing is there disclosed which shows that
the loans were not made upon the risk, essential to this species
of contract. But when the rights and interests of third per-
sons are to be aflEected, the true nature of the transaction is open
to iuTestigation. Property is not to be put out of the reach of
Tigilant creditors, and the truth shut out by the mere form of
instruments: Clapp t. KrreB, 20 Pick. 247.
Looking at the feusts proved, it appears that the monqr, in-
tended to be secured by the bonds, was not originally adTanced
upon the credit or hypothecation of the Tessels named in the
conditions, but as security for debts, due from Luther Jewett to
the plaintiffiB, which had accrued some months before, princi-
pally for adTances on bills drawn on them by Jewett. If the
account of the plaintiflffl had been thereupon discharged, as far
as the same had been secured by the bonds, it might have been
regarded Tirtoally as a new loan on bottomry. In Conard v.
The AUcmiie Ins. Company, 1 Pet. 486, one of the loans obtained
was applied in part to the payment of a prior loan. But in this
case the bonds were manifestly proffered and reoeiyed as col-
lateral security. It does not appear that Jewett was discharged
from his indebtedness on account, or as drawer of the bills, or
that he had credit in account for the sums stated to have been
adTanced by the plaintiffs in the condition of the bonds. From
the correspondence it appears that they were looking to the sales
of goods belonging to Jewett under their control, which after
the receipt of these bonds, they insist must be made avecilable
for their benefit, although the market was unfavorable. In
Jewett's letter to the plaintiffs, inclosing the bonds, he advises
that he sends them as a guaranty, and as such they must be pre-
sumed to have been accepted. The movement appears to have
been altogether voluntary on his part. If the security was col-
lateral, which is plainly deducible from the facts, the debt was
not at risk, although the collateral security was to be available
only upon a contingency. It results, that these instruments can
732 Whitney v. Munboe. [Maine^
not have effect as bottomzy bonds, as the obligation of the debtor
to refund the conaideiation upon which they were based, did
not depend upon a maritime risk, but remained in force at all
events.
It is insisted, however, for the plaintiffs, that if their title can
not be sustained as lenders upon bottomzy security, they have a
right to hold the vessels in question as mortgagees. It is an ob-
jection fatal to their claim upon this ground, that their mortgage
was not recorded, as required by the statute of 1839, c. 390.
This is dispensed with only where deHyery and possession ac-
company the mortgage. No delivery was made by Jewett, nor
did the plaintiffs attempt to take possession until some time
after the bonds were executed. According to the agreement of
the parties, the default must be taken off and the plaintiflJB be-
come nonsuit.
For dedsioiis involving the rabjeet of bottomry, althoa|^ not pandng upon
the qneation here raieed: See Boberlaon v. United Iiu. Co,^ 1 Am. Dea 166|
Kwn^ V. OlMrkmm, 8 Id. 336; Jenmiings v. Pn. In$, Co,, 5 Id. 404
WhCENEY t;. MUNBOB.
[19 UABKm,4^}
To DsnBMDVB WHiFrHKH One is ▲ TausiBE or not under the law of for-
eign attachment, a usual but not neoeesarily decisive test is, whether the
principal has or has not a right of action against the supposed trustee.
Imtxbbst of ▲ Joint Ck>NTBAcroB, in thx Hands or a Tbustxe, may be
reached by foreign attachment, although the effect will be to sever the
liabiUty.
Pbiobitt bxtwbbn tbb Riohts of Joint and iNDivmuAL Cbbditobs wiU
not be inquired into, in a suit by the latter against the debtor's trustee.
FoBEioH attachment. On October 24, 1839, J. S. Munroe and
J. Good^mi contracted with Iia Crocker, as agent for the Bank
of Cumberland, to cut and haul lumber for the bank at a speci-
fied rate, to be paid for upon the completion of the work. They
performed the contract, and at the time of the institution of this
action, there was due them the sum of seven hundred and sixty
dollars and seventy-eight cents.
Haines, for the trustees.
Fessenden and Deblois, for the plaintiffs.
By Court, Weston, C. J. The policy of the law of foreign at-
tachment is, to render the effects and credits of the principal
debtor, in the hands of the trustee, available for the benefit of
the creditor. The law should receive a liberal construction, in
April, 1841.] WHiTNEr v. Munboe. 733
furtherance of this object. With respect to credits, one of the
asaal tests, to determine the question, whether trustee or not,
is, whether the principal has, or has not, a right of action against
the supposed trustee. But this test is not in all cases neces*
sarilj decisiye, as there are exceptions to its application, of
whidi the counsel for the plaintiff have put some examples.
The alleged trustees in this case are the holders of funds, of
which the principal debtor is entitled to a moiety. He has it
not in his power, without joining the party entitled with him,
by any coerciye process, to compel payment. The principal
reason for the necessity of this joinder usually given is, that
otherwise the party indebted might be liable to the cost and in-
convenience of two suits upon one contract. Hence if he him-
self sever the cause of action, by paying one of his joint creditors
his proportion, he is liable to the several creditor. So the law,
in carrying out its remedial provisions, may sever a contract, so
as to subject the debtor to tiie liability of two suits upon one
contract. The death of one of two jointly contracting parties,
renders the survivor and the administrator of the deceased party
each liable to a several suit. So if the trustee be indebted to
the principal in an entire sum, beyond the amount wanted to
satisfy the judgment recovered by the attaching creditor, he
will remain liable to the action of his principal for the residue.
The trustee is but a stakeholder; and the law indemnifies him
for the expense of the suit, by allowing him to deduct it, as a
charge upon the fund in his hands. Notwithstanding, there-
fore, if the trustees are charged in this case, an entire liability
will thereby be divided into two parts, in the judgment of the
court, this objection can not prevail.
The counsel for the trustees further insist, that they ought to
be discharged because the fund may be wanted for the joint
creditors of Munroe and Goodwin, who it is said in the business,
from which it accrued, are to be regarded as partners. It is not
necessary to decide, whether they stood in this relation or not,
as it does not appear that they had any joint creditors, or if they
had, that they have any occasion to interfere with this attachment.
If they would claim and assert any such superior right, it was
easy for them to have done so, by suits against both, summon-
ing the same trustees. The court would then have been called
upon to determine who had the better title to the fund. But no
such question arises in the case, as now presented. The attach-
ing creditor is entitled, if wanted to satisfy his judgment, to one
half the debt disclosed.
Trustees charged.
734 Hooper v. Day. [Mbida.
HooFEB V. Day.
[19]CAini>M.]
Wouaam AszAOHiaon.— Goods CozniAZifSD or Boxv 8iousk.t Fast-
BKSIS M thftk thoir ehanuster is entirely oopeealecl, whtrnt depositsd with
% third penon sre not liable to attechment by ordinsiy pffoow , bat may
be leaohed hy prooesi against the depodtary as trastee.
FouEiov attaohment. One Mrs. Day, previous to the service
of tbe plaintiff's writ, left with the defendant Hood certain
household goods, contained in trunks and boxes seeovely fast-
ened, so that their character was unknown. The day after the
service of plaintiff's writ they were attached on another writ, in
the action of Jift^A^sonv. Day. On the trial the defendant Hood
was chaiged as tmstee, from which roling this taiU of exceptions
was taken.
Oodman and Fm, for the defendants.
Band, for the plaantifb.
By Oonrt, Seoeflbt, J. It is contended, that the goods were
so intrusted or deposited, that they could be attached by the
ordinary process of law; that the attachment made on the follow-
ing day by such process should be regarded as the only legal
one; and that the trustee should be discharged. And reliance
is placed on the cases of JUen v. Megguire, 15 Mass. 490, and
BweU T. Broum, 5 Pick. 178, to sustain these positions. In the
former case it is said, that the trustee process '' will lie only
where the goods can not be come at to be attached by the ordi-
nary process of law.'' This is only a statement of the statute
provision, and it does not assist one to determine when they are
so deposited. There is a more important intimation in the case,
that a person summoned as trustee, " and not disclosing any-
thing by which it might be inferred, that he exposed them to
attachment," may be considered as the trustee and charged
accordingly. The latter case decides, that a person having
possession of the goods of the debtor without his consent or
contract, may be liable to this process, when they can not be
attached by the ordinary process. In the case of Butiingame v.
Bell, 16 Mass. 818, it was decided, that a construction so dose as
to be confined to the literal effect of the words of the statute, was in-
admissible; and it is said that goods may be so placed in the hands
of another ''as to be physically within the reach of an officer
to attach; and yet there may be difficulties in the way of attach-
ing them which a creditor may fairly wish t/) avoid." In this
April, 1841.] Cabteb t;. Bbablet. 73S
<sa8e the trustee does not state, that he e:q>08ed the goods so that
ihey could be attached bv the ordinary process. They were in
tmnks locked and boxes nailed, which were placed in one of the
•chambers of the dwelling-house of the trustee. It does not ap-
jiear that the officer did or could know the contents of them, or
in what part of the house they were to be found, or that he
would be permitted to search for them. He as well as the cred-
itor might well desire to avoid the risk of attaching articles not
exposed to sight, and which might not be liable to attachment.
They were not so situated as to enable the officer acting with
prudence to make an attachment without the danger of subject-
ing himself to an action of trespass for taking goods not liable
to attachment. Goods so situated can not be regarded as liable
to attachment by the ordinary process in the sense contemplated
l3ythe statute.
Iizceptions orerruled.
Gabxeb v. Bbadur.
(U Minn, ea.]
Houna xxv ▲ Non is Bound to Nonrr all Pbu» Fabcos to whom be
intcndi to reaort, of demand and non-paymont.
Baksjobm to Nonrr a Pbiob, will vot RbiiSaiw a Sujaaauarr iHDOuiii
properly notified.
SoBsaQuxNT iHDOBsxa nr Oansa to GHAsaa Paioa PABizn Iim genenlfy
a day after hia own liability baa beoome fixed to notify thoae who atand
before bim.
JfnvoiiBB OF AN iNDQBSKa DT A NoxiOB intended to ohaige him, will not
vitiate the aame if be knew that the notioe waa intended lor him and
that the note deaoribed waa the one in aoitb
Assumpsit on a promissory note, dated Noyember 5, 1888,
.nade by Osgood Bradbury, payable in sixty days to William
Bradbury or order, at either of the Portland banks, and in-
dorsed by him and the defendant. On January 7, 1839, the
Manufacturers and Traders' bank of Portland caused the fol-
lowing notioe to be left at the defendant's residence, and the
4iame came to his possession the same day:
" Sahuel a. Bsadbubt: A note signed by Osgood Bradbuiy
imd indorsed by you for two hundred dollars — cents became
due this day, which is the last day of grace, and is unpaid. You
Are therefore requested to pay the same. E. Oould, Cashier."
The further facts appear in the opinion. Plaintiff had yerdict.
786 CABTiiSt V. Bradlet. [Maine,.
J, D, Hopkma and 8. Fessenden, for the defendant.
F. O. t/l Smith, for the plaintiff.
By Court, Weston, 0. J. The instmctions first giren hy the
judge are fully sustained by the case of Page y. Webster, 15 Me.
249 [33 Am. Dec. 608], to which we refer. The holder of a bill
or note is bound to notify all the prior parties, to whom he in-
tends to resort: Chitty on Bills, 295. If he notifies his imme-
diate indorser only, he waives his remedy against a prior in-
dorser; but in running back to the series of liabilities, each party
receiving seasonable notice, has generally a day to give notice
to such as stand before him, by which their liability beoomes
• fixed, whether notified by the holder or not: Bayley on Bills^
263,and the cases there cited. If the plaintiff failed to give sea-
sonable notice to the first indorser, he may have lost his remedy
against him, but may charge the defendant, the second indorser,
if he has caused him to be legally notified. If the defendant
would charge the first indorser, it became his duty to take care,
that due notice was forwarded to him. It appears, that the de-
fendant had indorsed such a note as is described in the notice,,
which he is proved to have received. The question is, whether
the misnomer in the latter part of the surname did so vitiate th»
notice, as to render it legally ineffectual. The jury have found
that the defendant knew that the notice was intended for him,
and that the note designed to be described therein was the one
now in suit. If this was a point to be determined upon in-
spection of the paper alone, it was more proper that it should
have been settled by the presiding judge. But there were other
facts to be considered. The messenger, IMey, understood the
notice to have been made out for the defendant, and accordingly
left it for him with the keeper of the public house, where he
boarded. Mr. Moorhead, with whom it was left, must have so
understood it, for it appears that he did, on the same day, hand
the notice to the defendant. Taking these facts in connection
with the description of the instrument declared on in the notice,
we are of opinion ihkt they sustain the verdict found by the jury,
and that it was a matter properly submitted to their considera-
tion. But if it had rather belonged to the court to decide thia
point, as it has been correctly decided, it furnishes no sofficieni
ground of exception.
Judgment on the verdict.
Ab to notioe to indoner, see Fish v. •/ctdbMan, post, 709, and notai
April, 1841.] QowEB v. SxEVENa 787
GrOWEB V. STEVENa
[10HAan,93.]
BsriNTiov OF TBI P088B8810M 07 PSBSONAL Pbopbbtt 8xizd> 1^ » iheriff
or his deputy is necessary to preserve the lien of the attaohmentb
SmEBiFV OAK NOT OoNBTiTUTi THX DuTOS HIS AoBNT to keep tfao prop-
erty attached.
Attaohmsnt Dsholvkd bt R1A8OV OF THB PossHBioir of the prupstij
seised remaining with the dehtor can not be reviired by notice.
BgyjLBvm for a yoke of oxen, one horse and 'wagon, and a
bn&lo skin. Plaintiff, as deputy sheriff, had attached said arti-
cles hy aathoiity of two writs issned in two actions against one
J. H. Lambert, but by an agreement between them had allowed
Lambert to retain possession. Defendant, as deputy sheriff, had
subsequently attached the oxen in the possession of Lambert^
and the horse, wagon, and robe, in the possession of plaintiff,
to whom Lambert had.deliTered them upon being informed that
defendant had a writ against him. Plaintiff offered to prore
that the property attached by him was left in the possession of
Lambert by the authority of the attaching creditor, but the tes-
timony was excluded. Upon the trial plaintiff was nonsuited*
' Godman and Fox, for the plaintiff.
F. O, J. SmUky for the defendant.
By Court, Weston, 0. J. To constitute and preserve an afe-
tsclunent of personal property, by process of law, the ottuoex
serving such process must take the property and continue in pos-
session of it either by himself, or by a keeper by him appointed
for this purpose. It has never been understood that he could,
consistently with the preservation of the lien, constitute the
debtor his agent to keep the chattels attached. Except so far as
authorized by special statute provision, he can not leave such
property with the debtor, vrithout dissolving the attachment:
Woodman v. Trc^hn et al.,7 Greenl. 178. Nor are we aware,
that it can be preserved against persons having notice of the
facts, although an implication to this effect may be found in the
case cited and in Bruce v. Holden, 21 Pick. 187. Both those
cases are strong authorities to show, that an attachment is dis-
solved, by leaving the property in the hands of the debtor; and
if once dissolved, we are not satisfied that it can be revived by
notice. If an officer attaches goods in a store or vearehouse, and
leaves them in the possession and under the control of the
debtor, it does not appear to us that a second attaching creditor
Ax. Dko. Vol. XXXVI— 47
738 Hascall v. Whitmobe. [Maine^
and his officer can be repelled, by mere notice from the debfcor,
or from any other person who may happen to have had knowl-
edge of the first attachment. Both might well reply, that such
attachment had been relinquished or had been lost by a want of
care and vigilance on the part of the first officer. The statute of
1821, c. 60, sec. 34, cited for the plaintiff, is based upon the
assumption, that but for the proyision there made, the first at-
tachment would be dissolved by suffering the property to remain
in the possession of the debtor.
The counsel for the plaintiff has attempted to bring the at-
tachment of the oxen within the statute cited. But it can not
be held available for his benefit, unless upon taking security, as
is therein provided, which was not done. The law of attach-
ment can not be varied by the consent of the creditor. He can
do nothing to impair the rights of third persons. It is insisted,
that the plaintiff may hold the horse, wagon, and buffalo robe,
as he had once attached them, and being in his possession, when
taken by the defendant. It is a sufficient answer to this posi-
tion, that the attachment made by the plaintiff had been dis-
solved for nearly three months, and that when he took the
property a second time, the return day of the writ from which
he derived his authority was passed.
Nonsuit confirmed.
Personaltt Attachbd must be Ebft nr thb Pobsissiov of thb OrncsR:
Shepourd v. BuUerJkld, 4 Cash. 490, citing the principal case: Lovory v. Coc^,
24 Am. Dec. 628; Ifottister v. Ooodale, 21 Id. 674, and note; Hemmawajf
▼. Wheeler, 25 Id. 411, and note; Odiome v. CcU^, 9 Id. 30; Na^iar ▼. De»-
, 19 Id. 319.
Hasoall v. Whttmobb.
[19 Uazmz, 103.]
Wakt ov Consideration for a Promissory Note is no defense in a suik
thereon agaioBt a bonajide indorsee, without notice and before matority.
PUBOHASER OP a PROMISSORY NOTE BEFORE MATURITY, with notioe of the
want of consideration, from a bona fide indorser without notice, is enti*
tied to all the rights of his vendor.
Assumpsit on a promissory note. The opmion states the fiicts.
W. P. Fessendtm, for the plaintiffs.
Ibx^ for the defendant.
By Court, Sheplet, J. The plaintiffs are joint owners of a
negotiable promissory note purchased before it became payable.
April, 1841.] Hascall v. WHmfORE. 739
One of fhem is a holder for value without notice; the other with
notice, but deriving his title through others who were bona fide
holders without notice. As between the original partners the
note may be regarded as made without consideration. Andrews,
who was the first and an innocent indorsee for value, did not in-
dorse it, when he disposed of it, and he was properly admitted
as a witness: Whitaker v. Brovm, 8 Wend. 490. He could have
collected it, for the want of consideration could not be set up
against him. A knowledge of the facts acquired afterward
would not affect his rights. He had not only a legal right to
hold and collect it, but to negotiate it. And the maker could
not impair that right by giving notice, that it was made without
consideration. Nor would he be injured "bj a transfer to one
having a full knowledge of the facts; for his position would not
be more unfavorable than before.
Bayley states, that the want of consideration dm not be in-
sisted upon " if the plaintiff, or any intermediate party between
him and the defendant, took the bill or note bona fide and upon a
valuable consideration:" Bayley, 550, ed. by Phillips & Sewall.
The case of Thomas v. Newton, 2 Car. & P. 606, was assumpsit
on a bill drawn by Wilson on the defendant and accepted, and
by him indorsed to Dandridge and by him to the plaintiff. The
defense was a want of consideration. Lord Tenterden says:
** If the defendant shows, that there was originally no considera-
tion for the bill, that throws it on the plaintiff to show that he
gave value for it, or that value was given for it by Dandridge;
for if either the plaintiff or Dandridge gave value for it, the
plaintiff may recover; otherwise the defendant is entitled to
recover." In Solomons v. The Bank of England, 18 East, 186,
note (b), it appeared, that the bank note had been obtained
fraudulently from Batson & Co., who informed the bank of it.
The plaintiff as holder claimed payment of the bank, and it was
refused. He had received the bill of Hendricks & Co. ; and it
did not appear that he paid value for it before notice. Lord
Eenyon says: '* Upon this evidence I think Solomons must be
considered to be in the same situation as Hendricks & Co."
But as it did not appear, that they were holders for value with-
out notice, the plaintiff did not recover. In Smith v. Hiscock,
14 Me. 449, where a negotiable promissory note had been in-
dorsed bona fide and for value before it was payable, the
chief justice says: " The want of consideration is not an available
defense against a subsequent holder, to whom it may have been
fiassed after it was due. The promise is good to the first in-
740 Makin u Institution for Savings. [MaLoe^
dorsee free from that objection; and the power of transferring-
it to others with the same immunity is incident to the legal right
which he had acquired in the instrument. By the first negotia-
tion the want of consideration between the original parties ceases
as a valid ground of defense."
If the relations between the maker and holder only were to
be considered, the want of consideration would be a good de-
fense against one, who did not purchase for value, or who did so-
after it was once due. And yet it has been decided that one so
situated my avoid that defense by showing, that it could not have
been interposed against a prior holder. The same principle ap-
pears to be equally apjdicable to a holder who has purchased
with notice. If the relations between himself and the maker
only were to be considered he could not recover. But purchase
ang of one who had no notice he must be considered to be in
the same situation and as entitled to the same protection.
Defendant delaulted and judgment for amount due on <h»
Makot V. Inwitution fob SA.TINa&
(19 MADn, 138.]
BA^nras Bank that UimniTAxn to Imnsr all MoNsn Beposetbd witi»
it, and repay them apon demand made in oonformity with iti l^-Iaira^
!■ liable to an action <d anomprit upon lulnre ao to do.
Assumpsit. The plaintiff was a depositor with the defendant,,
a sayings bank. Upon demand made in conformity with its by-
laws, the defendant refused to pay over to plaintiff the money
he had on deposit. These facts being established on the trials
the court directed a nonsuit, to which exceptions were taken.
Oodman and Fox, for the plaintiff.
Longfelloio and Daveia, for the defendant.
By Oourt, Shsflkt, J. This corporation was designed to af-
ford assistance to those willing to preserve and invest small
gains until needed, or until their accumulation would authorize
a more permanent investment. Its purpose was a charitable one.
It did not propose to enrich itself by any favorable result of its
operations. In the administration of this charity it undertook
to invest the money deposited, in public or private stocks, or to
loan it on a pledge of them in preference to other loans. The
case finds that it was bo invested. It is said, that serious losses
have hapi>ened by a fall in the price of the stocks purchafied, so
April, 1841.] Makin v. Institution for SAviNoa 741
that fhe corporation has become unable to pay the seyeral depos-
itors the money received of them. It is insisted, that the corpo-
ration has discharged its duty faithfully; has invested the
money in the manner it engaged to do; that a depositor can not
therefore maintain an action at law to recover his money; that
be must take bis share of tbe stocks, or resort to equity for re-
lief. Tbe institution is regarded in the aigument as sustaining
the relation of a trustee to the depositer, and it is urged, that
it should be dealt with as such. This argument overlooks the
consideration, that the corporation not only undertook to re-
ceive and to invest the money in stocks, but also to repay it at
certain times prescribed by itself. It assumed that it would
have the ability to do this; expecting, doubtless, that the losses
would be made up from the excess of interest beyond that,'
which it promised absolutely to pay. In this it may have been
disappointed; and may find itself, like individuals, assuming re-
sponsibilities from a confidence reposed in the value of stocks
or other property, unable to perform what it has promised. Its
erroneous judgment of what it would accomplish for the bene-
fit of the depositors, and the unexpected losses suffered, can
not in law excuse it from the performance of promises made to
them. It assumed other and greater liabilities than those prop-
erly appertaining to a trustee. A trustee undertakes to act with
faithfulness and prudence in preserving and investing property,
and to deliver it over, or the proceeds of it, as required. He
does not assume to bear the risk of losses. This corporation
did, in effect, assume the risk of loss. For it undertook at all
events to pay a stipulated interest, and to repay the principal.
It may be very true, that it would be more equitable to appor-
tion the losses among all the depositors, instead of allowing one
to obtain his money without loss, and thereby subject another
to an additional or a total loss. Whether such a result could
or not be avoided by some proceeding on the part of the corpo-
ration, is not now presented for consideration.
Our law allows the vigilant creditor to interpose by attach-
ment, and to obtain, if he can, his whole debt; leaving, it may
be, those lees vigilant or fortunate, to an entire loss. The case
as presented does not exhibit any sufficient ground of defense.
Exceptions sustained, and new trial granted.
742 State v. HoDOSKiNa [Maine,
State v. Hoixsiseinb.
[» ILmn, IBS,]
Fboof Of Mabbiaos nr Fact U In ocmtradistixictioii to proof inf enkUo from
einminstaiioei.
Masbzaos in Fact, nr a Gbikinal Prosboutioh fok Aduxaxbt, miut bo
proved by tome peraon present at the oeremony, or by the prodnotion ol
the reoord, or by the oonf enion of the priaoner.
PXBVORMAKGB ov THK Ma&riaob Gbbbkont, by one duly aniJioriaed lor that
pnrpoee, is neoeeeary to be proved in a ariminal proeecntion for adoltoiy.
Ibbiotxbbt for adultery. The opmion states the facts.
A, EdineSy for the defendant.
2). Ooodenow, attamey-generalf oonhra.
By Oonrty Whtticah, 0. J. The indiotment against the pris-
oner contains a chai^ of the crime of adultery. Two excep-
tions are taken to the proof in support of it. The first is, that
the cTidence of the marriage of Hodgsldns was insufficient. A
witness testified that she saw the ceremony performed, but can
not tell hy whom, and gave no description of the person per-
forming it, whereby his official character could be indicated.
This evidence was accompanied by proof of cohabitation, be-
tween the parties, immediately following the performance of
the ceremony, till they had nine children. Was this sufficient
to authorize the finding of the fact of marriage? It is in-
dispensable that this fact should be proved; and the proof of it
must be such as the hiw, in the particular case, requires. Dif-
ferent cases, in which the proof of a marriage is made requisite,
require different evidence. In settlement cases, and some others,
reputation and cohabitation, in some instances, have been
deemed sufficient. But in civil actions, for criminal conver-
sation, and an indictment for bigamy, it has been held in
England, that a marriage in fact must be proved: 4 Burr. 2069.
In that country the common law courts have not cognizance of
the crime of adultery. We have from thence therefore no ad-
judged cases on this point, in reference to that particular crime.
But the crime of bigamy is an offense of the same grade; and
the rule as to the proof of marriage must be the same in both.
The proof of a marriage in fact is in contradistinction to jiroof
inferable from drcumstances.
This rule, as to proof of marriage in fact, is considered as hav-
ing been somewhat modified by the decision in a case cited in 1
East's P. C. 470. That was an indictment for bigamy. In
April, 1841.] State v, HoDOSEiKa 743
•
addition to fhe proof of reputation and cohabitation, till after
the birth of a number of children, it was proved, that, in a judi-
cial proceeding in Scotland, the prisoner had signed a paper,
containing a full acknowledgment of his marriage, a copy of
which was produced. Upon this evidence the court are stated
to have adjudged the proof sufficient; and some of the judges
were of opinion, that the confession so made wotdd have been
^lone sufficient. It is a well-settied principle of law that confes-
sions, if made deliberately and understandingly, and against the
interest of the party malring them, are the best evidence that can
be expected. But there are numerous exceptions to this rule,
arising from policy or other considerations. If there be a sub-
scribing witness to a simple note of hand, the confession of the
maker, that he signed it, can not be proved till it shall be made
apparent that the subscribing witness can not be produced; and
this rule is still more pertinaciously adhered to in reference to
instruments of a higher natuipe. But the supreme court in this
state has so far yielded to the modification of the ancient rule, in
conformity to the opinion of some of the judges in the case last
cited, as to determine, in cases of adtdtery, that the confession of
the adulterer, deliberately and understandingly made, of his mar-
riage, shall be admissible, and be consideredprima/ooie evidence
of the fact: Oayford^a case^ 7 Greenl. 67, and Harris' case,^ 2
Fairf . 891. Before arriving at this result, Ohief Justice Mellen
went into an elaborate course of reasoning to establish the rea-
sonableness of it. Thus &r and no further have the courts gone
in dispensing with direct proof of the fact of marriage in such
The question now is, can we consider the proof of the marriage,
in the case at bar, as proof of a marriage in &ct; for the case
does not contain any evidence of a confession of it. It should
be with great caution that innovation should be resorted to in
reference to the rules of evidence, as well as in relation to all
other rules of law. It is not unfrequentiy the case, that it
would be better to leave, undisturbed, a rule, which has been
long in use, so as to become familiarly known, and to which our
habits have become adapted, and in some measure fixed, even if,
abstractiy considered, it should be demonstrable, that in lieu of
it, some other rule would have been preferable. If, in cases
like the present, the rule formerly was, that a marriage in fact
should be proved, by which, it is to be understood, that it should
be by some person present at the performance of the ceremony,
I, Htm't ca$4.
744 State u Hodgskins. [Mamo^
or hy the production of the record of the marriage, and the onlj
modification of that mle, as yet recognized, is Hie admission <rf
proof of the confession of the fact hy the prisoner, deliberately
and onderstandingly made, we must look to the evidence, and
see whether it comes fairly within either of those roles.
The proof here is by a person who was present at the perform-
ance of a marriage ceremony, between the prisoner and his sup-
posed wife, at her father's house. But the witness can not tell
who performed that ceremony; nor whether it was by a clergy-
man or magistnte, or any other person. The object of requir-
ing the testimony of a person present at the marriage is not
merely to prove tiie performance of the ceremony by some one;
bat to prove that all the circnmstances attending it were such
as to constitate it a legal marriage. There should be something
disclosed by which it may satisfactorily appear that the person
performing the ceremony was legally clothed with authority for
for the purpose. In the Case of the Indictment ctgainsi Narcrosa,
9 Mass. 492, it was proved that the cremony was performed by
Doctor Morse, of Charlestown, a person well known as being an
ordained clergyman in that town, and as such having authority to
solemnize marriages. No question was made but that he was
BO authorized. No objection, therefore, was made to the proof
in this particular; but it was insisted that it should haye been
1^ the record of the marriage, but this the court overruled. In
a settlement case in England, Bex t. T?ie Inhabiianta of Framp^
ton,^ 10 East, 282, the proof of the marriage of the pauper was
strenuously contested upon the ground that it did not appear to
have been solemnized by a person having authority for the pur-
pose. There was evidence of his cohabitation with his sup-
posed vrife for eleven years, and of the birth of children during
that time. This alone seems not to have been regarded, in that
case, as sufficient; possibly because there was the v^ant of evi-
dence of reputation in regard to it. However this may be, it
seems to have been deemed necessary to produce further evi-
dence of the fact of a marriage. Accordingly a witness was
produced, who testified that the husband of the pauper was a
soldier in the British army, at St. Domingo, and that while so
there, he saw him married in a chapel there, by a person there
officiating as a priest, and in the habiliments of one; that the
ceremony was in French, but was interpreted to the parties in
English; and appeared to be in conformity to the marriage
service in England. Lord EUenborough, and the other judges
1. BmT» Brampton,
April, 1841.] State v. Hodgseins. 746
of the king's bench, in that case, considered that there "was evi-
dence of a marriage by a person so described, that it was rea-
sonable to belieye that he had authority for the purpose, and
that the mazxiage was Talid; it haying been followed by cohabit-
4ition and the birth of children between the parties.
If such proof could be deemed essential ina settlement case, a
fortiori, something, at least equivalent, would seem to be requi-
-site in a criminal prosecution for a heinous offense. Inthecaseat
bar, the proof is much short of what seems to have been sup-
posed to be neceesazy in that case. There then is not the
slightest indication in the testimony of any authority for the
purpose, on the part of the person who pezforms the ceremony:
^ Wend. 281;' Orem ei al. y. Oridley,^ 10 Id. 254; Oxeenl. on
Et., sees. 88, 92; Dainum'8 ctue, 6 Qxeenl. 148. A marriage in
fact, therefore, as contradistinguished from one inferable from
-circumstances, is not proved. And there being no evidence of
4i confession of the fact, by the prisoner, we think the excep-
tions must be sustained, and a new trial granted. It is nnneo-
•essaiy, therefore, to consider the other exceptions taken by the
{irisoner.
Proof of Mabbiaoi in Gbdoval Gases.— The above deoUdon is iUna-
trtttive of a long line of caooo which carry the preanmption of iD&ocenoe, in
•criminal proeecation, to an extent, it is believed, likely to result in the escape
•of criminals rather than in the fartheranoe of justice. It is now well recog-
nized that the establishment of the marital relation varies in civil and in
•criminal proceedings. And tUs is eminently proper — because the general
presumption of innocence which would operate to legitimize children and
preserve the sanctity of man in lus relation with woman in the one case,
tends in the other instance to make him guiltless of gross offenses against the
marriage contract. The presumption operates upon the same state of facts
•differently in the two proceedings; and does so operate because it is deemed
best for the public good and in keeping with fundamental rules of criminal
trials. Some writers have delighted to point out and analyze a so-called con-
<flict of presumptions in discussing this question, and have dwelt at length
upon the neutralizing effect of the presumption arising from cohabitation and
reputation when brought in contact with the presumption of innocence in
penal causes. But we conceive it to be a general presumption of innocence,
■MB above stated, which is applied to the civil as well as to the criminal action.
The wisdom of considering circumstantial evidence of marriage sufficient in
civil proceedings and of requiring proof of an actual marriage in trial of in-
dictments for violating the marital contract we do not question — it is the
amount and character of the evidence required by many courts to prove the
actual marriage that we can not accept.
The following authorities maintain the general proposition that an actual
marriage must be proved in criminal cases where the fact of marriage is the
gist of the crime: 2 Greenl. on Ev., sec. 461; 1 Whart. on £v., sec. 85 et
•seq,; Whart. Grim. £v., sec. 171 tf^ 9eq.; Boscoe's Grim. Ev. sec. 17; Bishop's
1. WUcom V. SwMk; B. 0., 21 Am. Dm. 213. 2. Deam v. QridU^.
746 State v. Hodghskins. [Maiiuv
8tKt OrimM, MO. a08 etmq,; 1 Biah. Mar. and Div., c. 25. The eaxliest caae of
which reoard haa heen kept in the English reports involvizig this topie is that
of MarrU ▼. MiUer, 4 Burr. 2056; S. C, 1 W. BL 632, which singnlarlj
enoogh ia not a criminal proceeding at all, but an action for criminal oonver-
aation. The opinion of the court delivered by Lord Mansfield as preserved
by the two reporters is here reprodnced. The reporter Barrow inakes the
eonrt say: '* We are all clearly of opinion that in this kind of action, aa
action for criminal conversation with the plaintiff's wife, there must be evi-
dence of a marriage in fact; acknowledgment, cohabitation, and reputation
are not sufficient to maintain this action. But we do not at present define
what may or may not be evidence of a marriage in fact This is a sort of
criminal action; there is no other way of punishing this crime at common
law. It shall not depend upon the mere reputation of a marriage, which
arises from the conduct or declarations of the plaintiff himself. In proaecu-
tioDs for bigamy, a marriage in fact must be proved."
Sir William Blackstone's report of the caae ascribes the following lan-
guage to the court: " In these actions there must be proof of a marriage i»
fact, as contrasted to cohabitation and reputation of marriage arising firom
thence. Perhaps there need not be strict proof from the register, or by a
person present at the wedding dinner, if the register be burnt, and the par^
son and clerk are dead. This action is by way of punishment; there the
court never interfere as to the quantum of damages. No proof shall arise in
such case from the parties' own act of cohabitation. The case of bigamy is
stronger than this; and on an indictment for that offense, Dennison, J., on the
Norfolk circuit, ruled that though a lawful canonical marriage need not be
proved, yet a marriage in fact, whether regular or not, must be shown. Sz«
cept in these two cases, I know of none where reputation is not a good proof
of marriage."
Neither of these opinions determines what is sufficient evidence of a mar>
riage in fact; and so far as the proof of marriage in triaU for bigamy is passed
upon, this case is not authority for saying tbat the marriage must be so pos-
itively proved that nothing is to be left to inference. It is here that the diffi-
culty arises. First, in regard to reputation, it is generally conceded that
repute or general reputation alone is not legal proof of marriage in criminal
cases: Morgan v. SUxJtt^ 11 Ala. 289; Bwhaaum v. SUsU^ 55 Id. 154; IToocf v.
iSftote, 62 Qa. 406; Hamum v. Harman, 16 UL 85; People v. Miner, 58 Id.
59; Arnold v. StaUt 53 Ga. 574; and text-books above cited. And this ia
highly reasonable, for a man ought not to be convicted upon evidence that h»
is reputed to be married, without further evidence of cohabitation, and that
the former alleged wife Ib still alive and not divorced. But in Massachusetta
and Minnesota it Ib enacted by statute that general repute is competent evi-
dence of marriage in any court: Cren. Stat., c 106, sec. 22; CommonwecM v.
Holt, 121 Mass. 61, an indictment for adultery; State v. AmUngtont 25 Minn.
29, a prosecution for polygamy.
Whether general repute accompanied by evidence of cohabitation is suffi-
cient, is a question upon which the courts are more at variance. In the ab-
sence of statute, many decisions are that such evidence is not adequate.
Miner v. PeopU, 58 III. 59; MUler v. WhUe, 80 Id. 580; Harmon v. Harmon-.
16 Id. 85; State v. Rood, 12 Vt. 296.
But in other states, general reputation, accompanied with evidence of oo*
habitation and of conduct, on the part of the defendant, holding himself out
as a married man, has been deemed sufficient: Buchanan v. State, 55 Ala.
154; Wood v. State, 62 Ga. 406; Ccmmonwealth v. Jaekaon, 11 Bush, 679; 21
Am. Rep. 225; Commonwealth v. HoU, 121 Mass. 61. And this we think to
April, 1841.] State v. Hodqskin& 747
be the proper role. Actione on the pert of a man tantamonnt to a confeenou,
OQght to be reoeiyed as eaoht and it will be snbeeqoently shown that an ac-
knowledgment of marriage Is competent evidence, though formerly not so
considered. Moreover, there is here a question of presumptions which ought
not to be disregarded. It seems at war with good sense to presume on trials
for bigamy, for example, that a man living in the public relation of husband
with a woman, is nothing more than committing open fornication with her.
Where a man can be shown to have held himself out as the husband of a
woman, he ought to be made to abide by that declaration. It is better for
public morals that a man should, even for the purposes of crindnal prosecu-
tion, be deemed the husband of a woman with whom he has consorted aa
husband, than that the law should assume that he was but living in lewd-
ness with her, and permit him to take upon himself other marital obliga-
tions. Again, in civil proceedings the presumption is in favor of marriage,
for the benefit of children, that these innocent third i>ersons should not be
pronounced bastard. The presumption is not so much for the man's benefit
as it is for these third persoos— and it ought not to be invoked for his pro-
tection in criminal trials, where the result of such presumption is the sub-
version of public morals. A man ought to be estopped to say that she is not
his wife with whom he has lived as husband, towards whom he has assumed
the duties of such relation, and by trhom he has brought children into the
world.
The evidence arising from confessions next demands attention. It is
noticeable that in Blackstone's report of MorrU v. JiiUer, ntpra^ nothing
ii said in this respect, whereas in Burrow's report it is directly passed
upon. IVue it is that the facts show that it was the effect of the acknowl-
edgment of the defendant that was the point in issue. But be that as it may,
recent adjudications have settled the matter, in this country at least, as will
appear from the following excerpt from the opinion of Judge Woods in the
case of Jfties v. United States, 108 IT. S. 304, 811: *'0n an indictment for
bigamy the first marriage may be proved by the admissions of the prisoner,
and it is for the jury to detexinine whether what he said was an admission
that he had been legally married according to the laws of the country where
the marriage was solemnized: Regtna v. Swrnnoneto, 1 Oar. ft K. 164. And
it is stated in MUea v. United SicOee, 103 U. S. 804, 811, that the same view
is sustained by the following cases: Hegina v. Upt(m, cited in 1 Russ. on
Crimes (Greaves' ed.), 218; Duehese qf Kingeton'e ctue, 20 How. St. Trials,
366; Tniman*» eaae, 1 East's P. C. 470; ChigfimFe com, 7 Me. 67; ffam*e
eaeel 11 Id. 381; 8taU v. Libby, 44 Id. 409; State v. HUtan, 8 Bich. (S. C.)
434; State v. BrUtmh 4 McCord, 266; Warner v. Cammonvfealth, 2 Va. Gas.
696; Nonoood^B com, 1 East's P. C. 470; CommonweaUh v. Murtagh, 1 Ashm.
(Pa.) 272; Regina v. Neufton, 2 Moo. k K. 603; Stale v. McDonald, 26 Miss.
176; Wolvertan v. State, 16 Ohio, 173; State v. Seals, 16 Ind. 362; Qttin v.
State, 46 Id. 726; Arnold v. State, 63 Ga. 674; Cameron t. State, 14 Ala. 646;
Brown v. State, 62 Id. 338; WiiUami v. State, 44 Id. 24; Oommantoealth v.
Jackson, 11 Bush, 679." And so also State v. Medfmry, 8 R. I. 643; State v.
Landers, 30 Iowa, 682; Langtry v. State, 30 Ala. 636.
We can not refrain from quoting in this connection the clear and able ex-
amination of this subject by Judge Gofer in the course of the court's opinion
as delivered by him in CommontoeaUh v. Jtuckson, 11 Bash, 670; S. G., 21 Am.
&ep. 226. It explains away what has been the basis of many decisions adverse
to the admission or conclusiveness of the prisoner's confessions in criminal
" The American cases in which it has been held that evidence of such decla-
748 State v. Hodgskins. [Maine,
ratioDfl, ooof eodooB, and oofodxtet, Ib not admunble, or, if admiarible, ii not
of itself raffident to wamnt oanviction, teem to rest on tlio antliority of
Morru ▼. Miiler, 4 Barr. 2056, and But t. BaHow, Dong. 171. These were
notions for erim. oon. in which the plnintiflii mttempted to fstnWieh their
msRUges by giving in eyidenoe their own declsrations, and proving their
recognition of» and cohabitation with, the women alleged to be their wiyea.
In the former case Lord Manaflftid said: 'TlierB must be eridenoe of a mar-
riage in fact; acknowledgment, i. c, aokaowledgment of the hnsband by tiie
wifo— cohabitation and repfatation are not sufficient in this action.' And he
gives his reasons for so holding. ' It shall not depend,' said he, ' upon the
mere repatation of a marriage which arises from the oondact or declarations
of the plaintiff himself.' Again he says: *Ko inconvenience can poasibly
arise from this determination. Bat incoovenience mi^t arise from a coo-
trary dedsion which might render persons liable to actiaos foonded on evi-
dence made by the perrons themaelves who should bring the actions.' And
twelve years later, in deciding the case of Birt v. Bariow, he gave the same
reasons for a like dedsion. And this additional reason seems to ns to be en-
titled to considerable weight in support of the role annooneed by Lord
Mansfield in those oases, and by this ooort^ in the case of KMp ▼. Rueber,
1 A. K. Biarah. 290, as applicable to actions for crim. con. In snob cases
the plaintiff knows when, where, and by whom he was manied, and at least
some of the persons who were witnesses of the fact, and generally has it in
his power to offer direct and podtive proof. But the case Is often quite
otherwise with the government in prosecutions for bigamy. The proeecuting
officer must be wholly ignorant, often, of the time and place of the prisoner'k
first marriage, of the names and residence of those present at its consumma-
tion, and the avenues of information will generally be dosed to him, espe-
cially when the first marriage took place, as is generally the case with
bigamists in some other state or country. Another difficulty in the way of
the government under the rule that the first marriage must be established by
record evidence or by the testimony of one or more witnesses present at the
mamage, and which does not exist in actions for crim. con., is that the gov-
ernment can not read the depositions of witnesses, and may be unable to pro-
euie the attendance of those redding out of the state, while the plaintiff in
crim. oon. may procure and read depodtions to prove the fact of his marriage.
" But Lord Mansfidd did not say in MorrU v. Miiler, as some have sup-
posed, that a prisoner's words and conduct could not be given in evidence
against him to prove, in a prosecution for bigamy, the fact of his having been
previously married, or that such evidence would not of itself authorise a
conviction. He sdd, it is true, that * in a prosecution for bigamy a marriage
in fact must be proved;' and this we do not for a moment doubt is now and
has always been the law; but Lord Mansfield goes on to say, * We do not at
present define what may or may not be evidence of a marriage in fact,*
and thus left open the very question which he has been quoted as dedding,
which, as already stated, seems to be the foundation upon which the Ameri-
can cases rest which hold that direct and podtive proof is required. That
Lord Mansfield did not mean to decide that a marriage in fact could not be
proved by evidence of the declarations and conduct of the prisoner, \b not only
clear from the case in which he has been supposed to have made that dedsicm,
but is further shown by his decision in Mary Nortoood'8 eaae^ I East's Crim. L
337, where he, with the concurrence of Lord Chief Justice Pttrker and Justices
Smytbe, Bathurst, and Parrot^ determined that seven years* cohabitation and
several admissions by the prisoner that a person was her hasband, by calling
Apnl, 1841.] State v. Hodgseins. 749
him by th*t appellatioii, wm not only competent, but sufficient evidence t»
inore a maxriage in fact." And see 2 Whart. Crim. L.» see. 1700.
TIm If w, anadooB to preserre the domestic happiness of husband and wifs^
haa ordained^ as a general rale, that one can not be made a witness against
the other. Not questioning the wisdom of this policy in civil, and perhapa
In most cnminal cases, it may be neyertheless doubted whether, in proceed-
ings inTolving the ezistenoe of a maniage and of crimes against that relation,
tha general principle haa not been pushed too &r. A oonspiouous example ia
frsah in the minds of our people, where a polygamist was sought to be con-
vioted on the testimony of one of his wives. The supreme court of the coun-
tiy reversed the deoiaion, for the reason that this wife should not have been
permitted to testify. The ruling was certainly ooirect, as the court waa
obliged to be governed by the law; it ia the law in this particular that wa
condemn. While admitting that polygamous mairisges of the kind before
the court were contraoted in secrecy, and extremely difficult to be proved, tha
oourt was compelled notwithstanding to apply the rule of law preventing a
wif^ from testifying against her husband, llie conclusion reached by the
court In the case adverted to, MiU§ v. UwUed Staies, 108 U. 8. 804, 816, la:
"13ie result of the authorities Is, that as long as tha fsot of the first mai^
riage is contested, the second wife can not be admitted to prove it. When
the first marriage is duly established by other evidence to the satisfaction of
the court, she may be admitted to prove the second marriage, but not tha
first, snd the jury should have been so instructed." The rsasonlng of tha
court employed, in arriving at this detennination, is embodied in the follow-
ing: " The ground upon which a second wife is admitted as a witness against
her husband in a prosecution for bigamy is, that ahe is shown not to be areal
wife by proof of the fact that the accused had previously married another
wife, who was still living and still his lawful wife. It is only in cases where
the first marriage is not controverted, or has been duly estaUished by other
evidence, that the second wife is allowed to testify, and she can then be a
witness to the second marriage, and not to the first. The testimony of the
second wife to prove the only controverted issue in the case, namely, the first
marriage, can not be given to the jury on the pretext that its purpose is to es-
tablish her competency. As her competency depends on proof of the first
marriage, and that is the issue upon which the case turns, that issue must ha
established by other witnesses before the second wife is competent for any
purpose. Even then she is not competent to prove the first marriage, for she
csn not be admitted to prove a fact to the jury which must be established be-
fore she can testify at alL**
This case clearly demonstrates the folly of the law in this particular. Tha
general rule itself is based upon reasons of public policy designed to encour-
age and preserve confidence between man and wife, to the end that their indi-
vidual happiness and welfare may be promoted, resulting eventually in the
welfare of society at large. This spirit is appreciated and commended, but
in the face of the infringement of public laws another view demands recog-
nition, and that is that the happiness of the individual is to give way to the
general good. Not to say how far this view is to be carried, it is insisted
that at least in proeecntions for bigamy and for adultery the wife should be
made a competent witness to testify to that which she, besides the husband,
knows better than any one else, and of which, except her husband, she alone
may have knowledge. This consideration has especial weight in prosecutiona
for polygamous marriages as contracted in Utah.
Thus far we have discussed the questions of eWdence arising out of tha
acts and declarations of the immediate i>ar w-i t • t)u* marriage. Other meth-
750 State v. Hodgskins. [Maine
oda of proof next demand attention. The teetunony of a witness praeent al
the mamage is ordinarily admissible and adequate proof unless the law re*
qnires official sTidenoe: Commomoeakh ▼. ^orcrosf, 9 Mass. 492; Amoid r,
HkOe, 63 Oa. 074; Lam0ry ▼. BUUt, 90 Ala. 696; Mwrphy v. State, 60 Qa. 150;
Woherton ▼. StaU, 16 Ohio, 174; Warner ▼. drninumweaith, 2 Va. Gas. OS^
sa able opinion, reviewing also other pn^^MMitions involyed, by Judge White;
BtaU V. WUUamM, 20 Iowa, 08; 1 Bish. on Mar. sad Dir. see. 494; Whart. Grim.
Bt., sec 173. In Bird^t am, 21 Oratt 800, 807, Judge Staples, speaking for
the court, said : ' ' Although the testimony of a witness present at the marriage
may not be as oonolusive or satisfactory ss the oonfesBion of the party, there is
no solid reason for rejecting it ss incompetent. Therp is no technical rule for-
bidding the reception of such evidence. When a witness testifies to a marriage
inaforsign state, solemnised in the manner usual and customary in such stats
by a person duly authorised to celebrate the rites of marriage, and the parties
afterwards lived together as man and wife, this is as satisfactory evidence of a
valid marriage as could be expected or desired, and in such esse it is not nec-
essary to prove the laws of such state, or to offer further evidence of a com-
pliance with its provisions.*' The officiating dergjrman may be a witness to
prove the marriage: StaU v. Qoodriek^ 14 W. Va. 834; Wwmer v. Ccmmtm'
watth, 2 Id. 96; Bird v. OamnumweaUh^ 21 Oratt 800; State v. Abbe^, 29
vteo.
In the principal case, the evidence of the marriage was pronounced insuf-
ficient because the official character of the person performing the ceremony
was not shown. But tlus esse can be considered sound law only in this view;
ioat there was no evidence that the party celebrating the manias had any
anthori^ whatever so to do, and that consensual marriages were not recognised
ss valid in the place where this one wss contrsoted. The better rule is that
stated by Judge White in Wamer'a ease, 2 Va. Gas. 96, 104: "It does,
therefore, seem to me, upon the resson and necessity of the case alone, if theri
were no authorities upon the subject, that where the fiivt marriage was es-
tsblished out of the state by a person, who from all the circumstances of the
case, must ressonably be presumed to have filled a character authorising him
to do so, and who was recognised as the proper officer by the person accused
himself, and the company present at the time, snd further proof that after
the ceremony, the parties lived publicly together as man and wife, it is as good
evidence as in such a case a prosecutor can reasonably be expected to produce,
and if not impugned by other testimony, Ib proper, competent, and sufficient
evidence, so &r as sucJi fact goes to convict the accused." No further evi-
dence of the offidsl character of the person performing the marriage ceremony
need be given then that he was a person assuming and believed to have au-
thority: Bird v. CammonweaUh, 21 Gratt 800; Murphy v. Sta^, 60 Ga. 160;
StaU V. Abbey, 29 Vt 60; Staie v. iTeon, ION. H. 347; SUUe v. Olark^ 64 Id.
443; Bex v, Bramptofij 10 East, 282. And the usual proof in respect to vhe
authority to perform the ceremony is that the person was in the habit of act-
ing or had acted in that capacity: Same citations; State v. fFmJb2qr, 14 N.
H. 480.
The certificate of marriage when properly authenticated may be given in
evidence: Mtarphy v. SUOe, 60 Qa. 160; ArmM v. State, 63 Id. 674; SUttc v.
CcXby, 61 Vt. 291. But as thui is not a document that authenticates itself,
Statey. GMy, 61 Vt. 291; State v. Hom^ 43 Id. 20, the signature of the mm-
ister must be proved: Id. And when the prosecution relies upon a foreign
certificate of marriage, such certificate must be shown to have been kept in
pursuance of law, and signed by a person who had charge of such recat^i
State V. Dooria, 40 Conn. 146. By reason of the difficult of thus establish-
April, 1841.] Thompson v. Thompson. 751
-ing the genuineness of the record and of the farther necessity of proving the
identity of the parties, such oertifioatee are not as desirable evidence as the
testimony of witnesses.
In proving a marriage which has taken .place abroad, evidence most be
^ven of the law of the foreign state in order to show validi^: Boscoe's Orim.
Ev.y see. 326. It is now settled, that aside from an exemplified copy of these
laws, the officiating cleigjrman or person acquainted with the law by reason
of his profession may testify regarding it: The Suttex Peerage case, 11 01. ft
Fin. 134; Reg. v. Stmrnge^ 13 Cos's C. C 178; 14 Moak, 032; Whart. Grim. Ev.,
aea 173. In the absence of proof of the foreign law the presumption is that
'Consensual marriagee are valid according to it, and may be proved accord-
ingly: Id.; Evtekine v. KimmO, 31 Mich. 126; 18 Am. Rep. 164. Of course,
in order to convict the aconaed of crime by reason of an alleged marriage
abroad, it is necessary to establish that marriage. But the law is reaaooable
in this respect and does not demand exact proof. Should it appear that by
the lex loei certain preliminary acts were requisite to a valid marriage, the
law will presume that these steps were regularly taken if the ceremony be
ahown: Boscoe*s Grim Bv., see. SR23. Bat the presumption of regulari^ will
not be entertained where the act sought to be established by such presump-
tion and essential to the validity of the maniage, has no logical connection
with admitted facts in the case. Thus a marriage according to the law of
Prussia was charged. By this law it was necessary that a civil contract of
marriage should be entered into before a dvil magiatrate before the religions
ceremony, which was usually solemnised, should take place. The celebration
of such religious ceremony without the civil marriage was prohibited under
severe penalties. It was in proof in the case in question, that the religious
ceremony had been performed; and from this fact the prosecution urged that
the prior civil marriage should be presumed. This the court refused to do,
there being no logical connection between the two facts, and for the further
reason that by so doing they would, in presuming the innooence of the oele-
brator of the marriage, pronounce the accused guilty: Weinberg v. Staie^ 25
Wis. 370.
Thompson v. Thompson.
[19 Minn, 386.]
PjkBrr TO ▲ Pbbd is not Pkemitted to Pboys that he has no title to the
land conveyed, by virtue thereof, where the deed containa covenants or
redtals inconsistent with the proof offered.
Obahteb mat Fobtitt his Title by a subseqaent deed from his grantor to
the premises originally conveyed, and is not estopped from ftlMming that
the title passed by the prior conveyance, if by so doing he do not preju-
dice the rights of others.
DxiD OAV NOT Bi DxvBATXD TOB Onb Pubfosb, and reUed upon for another.
Wbtt of entry. The opinion states the facts.
Fairfield, for the plaintiff.
J. Shepley and Howard, for the defendant
By Court, Teknst, J. Both parties olaam under Benjamin
752 Thompsok v. Thokpson. [HaiaQ^
Thompson, sen. Tbe demandant, by virine of a lavy of an ex»>
cation isBoed npon a judgment in a suit, the basis of which was
a bond to the judge of probate, executed by Benjamin Thomp-
son, sen., and another as the sureties of one Bicker, the guardian
of the demandant, dated October 2, 1820; and the defendant, by
deeds dated June 15, and November 14, 1820, both of the same
land, excepting that the one of Norember 14 embraced two acres
more than the other, and both containing covenants of seisin
and warranty. It is contended by the demandant, that tibe
latter deed is an estoppel upon the defendant to say that he was
seised previously to the date thereof, and that the demandant is
allowed, as a creditor at that time, to impeach the same deed as
fraudulent against him, being a creditor by virtue of a bond.
It is well settled, that a party shall not be allowed to deny a
&ct, clearly stated in his deed — and also that he shall not be
permitted to prove he had no title to land by virtue of a deed
under which he holds, when it contains a covenant or recital
inconsistent with the proof ofBBied. In oases of dower, the lat-
ter principle has been applied: the tenant has been estopped to
deny the seisin of the demandant's husband, when he has taken
a deed from him containing a covenant of seisin, and when it
appears he has relied upon that title. But in a daim for dower,
it is not required to show a perfect title in the husband, seisin
only being necessary. The same principle has extended to other
cases. One has not been allowed to set up a title, derived from
another previous to his own agreement to purchase of thai
other's grantee, if the conveyance shotdd be made to such
grantee: Sayles v. Smith, 12 Wend. 57 [27 Am. Dec. 117].
But denying and repudiating a title under which one holds,
or refusing to be bound by a contract to hold under another
made solemnly and with full understanding of all the circum-
stances, where rights have been acquired by others, by reason of
such contract, is different from his supporting that title, and
complying with his contract by other means, not inconsistent
therewith. One may fortify an existing titie, without putting
it in jeopardy, if he do not prejudice the interests of others; and
doing so, can not originate rights in strangers, where there was
notiiing before on which they could rest. Claiming under one
conveyance, and denying effect to another, where he has entered
and enjoyed under the latter, is widely distinguished, from his
claiming under two conveyances from the same grantor. In 4
Pet. 83,^ the court say: " It is laid down, that recitals of one
1. Oanmr ▼. Jatktam,
April, 1841.] Thompson t;. Thompson. 753
deed in another bind parties. Technically, it opexates as an
estoppel, binding parties and privies, etc. It does not bind
strangers, or those claiming by a title paramount to the deed;
it does not bind persons, claiming by an adverse title, or per-
sons claiming from the parties by title anterior to the reciting
deed." ''The grantee may be permitted to show that the
grantor was not seised as is every day allowed in actions of cov-
enant:" Small V. Proctor^ 16 Mass. 495. '' It is generally com-
petent for the vendee to deny and disprove the seisin of the
vendor:" Ham v. JSbm, 2 Shep. 851. Covenants of seisin in
iJiis respect differ from covenants of warranty, the former do
not prevent the grantor from setting up an after-acquired para-
mount title in himself: AUen v. Sayward^ 5 Ghreenl. 227 [17 Am.
Dec. 221]. Otherwise in covenants of warranty: 12 Johns. 201;'
13 Id. 316.' One is not estopped by accepting a deed of his
own land, for this does not deny his former title, but may be
done to silence adverse claims and to purchase his own quiet;
** and every estoppel ought to be a predse affirmation of that
which maketh the estoppel:" Co. lit. 52 a. '' One is not es-
topped when the thing is consistent with the record:" Com.
Dig. E 3. '' S any interest pass, there shall be no estoppel:"
Com. Dig. a 1, B, E 2, E 4, E 8; Co. lit. 352 a, 45 a. It is a
general rule, that when there is anything for the warraniy to
operate upon, the doctrine of estc^pel will not apply: Jackson
ei al. V. Hoffman, 9 Cow. 271.
In the case at bar, the jury have found by their verdict, the
question being submitted to them without objection, that the
deed of June 15 was executed and delivered at the time it vnis
^ted — ^that passed all the grantor's titie, and none was remain-
ing in him, when he executed the probate bond, which is the
origin and basis of the demandant's claim. The defendant does
not repudiate his deed of November 14, but holds two acres by
that alone, on which all the covenants therein must operate. Be-
cieving this deed, interfered with no existing rights, is not and
could not be a cause of complaint with any one; so far from it
the demandant resorts to it as the foundation of his titie to the
land therein described. It gave no rights inconsistent with
those established by the deed of June 15, so &r as it embraced
the same land, nor did it take away any; so far, it in no respect
changed the relation of the parties. A stranger to the first deed,
having on no principle any authority to contest its validity, un-
til after the titie had wholly passed from the grantor, seeks to
1. JaeJatm ▼. Murray 1 2. Jadt§§m t. 8tt9mu.
Am. Dxo. Vol. X1XVI-4&
764 Thoxpson v. Thokpsov. [Mainok
awl hunfldf of a doctrine, which being denied him, taksB awaj
no interest, which in any manner had preyioiualy attached.
It is not peroeiyed that the demandant is in any better situa-
tion than he woold haye been, if he had taken Benjamin Thomp-
son senior's deed under his own seal after the conTeyanoe of
June 16, and before that of Norember 14, haying notice of the
first deed. Such a deed as is supposed, to the demandant,
wotdd confer no rights till after the second deed to the defend-
ant, and than the former oonld succeed to none, which his sap-
posed grantor would not have pctoooosod, so far as they relate to
the seisin prenous to Noyember 14. If the defendant is es-
topped to deny the seisin of his grantor prerions to the deed of
Noyember 14, in consequence of taUng it, that estoppel could
not operate to the adyantage of the demandant any more than
it would to that of the one whose interest he claims. Could the
grantor say, after the fourteenth of Noyember, that the defend-
ant was precluded from saying the seisin was in hiTnaelf after
June 16? If he should claim the benefit of this principle, would
it not be an answer to him, that his deed of June 16 was an
equal estoppel, to shut his mouth ? *' Estoppel against estoppel
doth put the matter at large:" Go. lit. 262 b. One can not
maintain an action on a coyenant of seisin by showing the seisin
in himself; '' the coyenant of seisin extends only to guarantee
the bargainee against any title existing in a third person, and
which might defeat the estate granted:*' Mk^ y. Baldurin, 17
Johns. 161. One can not allege seisin in himself after he has,
by his own deed, parted with it. *' It would be contrazy to the
established principles, that a grantor can not by his own actions
or declarations, defeat a deed, which he has before made to one,
who is claiming and holding under him:" BcarreU y. Thomdihe^
1 Greenl. 79. ''It would seem to be unjust, and contrary to
the intent of the grantee, to affect his rights by his acceptance
of a deed beyond the rights and interests which should actually
pass by it:" Flagg y. Mann, 14 Pick. 482.
The error of ilie presiding judge, complained of, was, in sub-
mitting to the jury, the question in his instructions, whether the
reason for taking the conyeyance of Noyember 14, was for the
purpose of carrying into effect the agreement as to the two addi-
tional acres, and whether that was honestly and fairly done
without any fraudulent intent. They haye answered in the
offirmatiye by their general yerdict, and we do not find, that the
doctrine of estoppel has been applied in any case analogous to
the present; and as the question of intention in executing a
June, 1841.] Stacy v. Fos& 755
deed or release^ has been considered by the courts to be one for
the jury and not for them, where it would seem to be for the
determination of the latter, with as much propriety as the one
arising in this case, we do not feel authorized or required to ex-
tend the principle to suits not clearly within its legitimate
operation: Fox et al. v. Widgery, 4 Oreenl. 214.
On another ground, we think this verdict can be well sus-
tained. The demandant's title rests upon the assumption, that
the deed to the defendant, of November 14, was fraudulent as
against him, and therefore void. If not fraudulent against him,
he can not contest its operation to convey the land to the de-
fendant, dan he say that the deed which is void against him,
admits him by its recitals and covenants to hold land in oppo-
sition to what is the truth? Shall he say, the covenants of
fleisin allow him to oome in, and when in, to deny the whole
effect of that same covenant of seisin ? Is it for him, in this
manner, to silence the voice, which honestly and fairly proclaims
the title in the defendant? If he attempts to hold, solely, by
showing a deed to be fraudulent, does not the very doctrine, which
he invokes in his support, dislodge him from such a position?
Shall he say, a deed void entirely as against him, contains in it,
that without which he has no pretense of title? He can not be
permitted to defeat the deed for one purpose, and set it up for
another: CroAy v. Chase, 5 Shep. 869. In any view, which we
are able to take of the case, we see nothing which leads us to
doubt that the verdict was properly returned for the def endani.
Judgment on the verdict.
Staot v. Fobs.
[19 MAm, 836.]
MoNST Paid to thb WnrNxa of a Waosb, the partiM being k^pmH aHhh,
can not be recovered back, imless made reooverable by ctatnte.
Stakkholdbb or a Waoeb, whx&b thb Mohxt has not bebn Paid over ia
the winner, ia liable to the loser, upon notioe and demand, for the
amoont by him deposited.
AssuicpsiT, to recover a sum of money deposited with the de-
fendant, as stakeholder, on a bet on a horse-race. Before the
defendant had paid over the money, the plaintiff, who had lost
the bet, notified him not to do so, and demanded a return of
the amount deposited by him. Plaintiff was nonsuited, to
which ruling an exception was taken.
756 Stacy v. Fos& [Maine^
E. FuJOer, for the plaintiff.
May^ tot the defendant.
By Ooorty Weston, C. J. It is oonoeded, that the bet out of
which this controyersj gxew, is not a valid contract. And it has
been decided by this court, that all wagers in this state are un
lawful: LeuM y, LUUefkUd^ 16 Me. 233. The action, however
is resisted on the ground, that the stakeholder is a party to the un-
lawful contract, and that both plaintiff and defendant being i»
pari delicto y the law will lend its aid to neither. And a distinctioB
is taken between notice to the stakeholder, repudiating and dis
affirming the contract, before and after the happening of the
event, upon which the virager is made to depend. When the
money has been once paid oyer to the winner, unless where
made recoverable by statute, the parties being clearly inpori d^
UdOy no action can be maintained to recoyer it back: Howwn v.
Hancock^ 8 T. B. 676; McOuUum y. Oourlay, 8 Johns. 147.
But where the money has not been paid oyer by the stake-
holder, although it has been lost, by the happening of the event,
it has been held, that upon notice and demand, the stakeholder
is liable to the loser, for the amount by him deposited: Octton
y. Thurland, 6 T. B. 406; Lacaussade y. WkUe^ 7 Id. 686.
The case of Yaies y. FooU^ 12 Johns. 1, has been cited for the
defendant, where it was held that after the event has happened,
no action will lie by the loaer against the stakeholder, upon no-
tice and demand, while the money remains in his hands. And
in MsKeon y. Oaherty^ 8 Wend. 494, the law is stated to have
been thus settled, by the case of Yaies y. Fooie. That vras a de-
cision of the court for the correction of errors, fifteen to six,
against the unanimous opinion of the supreme court, delivered
by chief justice Kent. It was one of five cases depending upon
the same facts and principles, in one of which, Viacher v. Ihfes,
11 Johns. 28, the judgment of the supreme court is reported.
Kent, 0. J., there reviews the Tingliflh cases, and he thence de-
duces, that an action may be maintained against the stakeholder
upon notice and demand, before he pays over the money, as well
after as before the happening of the eyent. To this result, as
sound and correct, is added the undivided opinion of the supreme
court of New York. The rale, that no action lies, where the
parties are in pari delicto, was interposed. The learned chief
justice says: ** This objection is applied exduaively to the suit
against the principal or winner; and there is no instance in which
it has been used as a protection to the intermediate stakeholder,
June, 1841.] Fooa t;. Yibgik. 767
who, thoTOgli an agent in the tranflaotion, is no party in interest
to the illegal contract."
It bestw comports with public poUoy, to arrest the illegal pro-
ceeding, before it is consummated; and in onr judgment, the
opinion of the supreme court is better sustained, upon principle
and auihorily, than that of the court of errors. The nonsuit,
ordered by tiie court beloW} is not warranted by the law of the
Exceptions sustained.
AonoK D0» KOT Ln to Bsoovsb Monxt Lost nr QjoaxQi Downs ▼.
4iuarie»j 12 Am. Dea S37, and note; Hudgpeth ▼. WUmm, 21 Id. S44; Babcoek
▼. ThampKn^ 15 Id. 236; BeU ▼. Parker, 28 Id. 65.
BaooTSBZHO MoxiT Paid ok LoTTiaT Tiokbtsi See <?ray ▼. Bobartg, 12
Am. Deo. 388.
SxAKSHOLDSB IS LiABLS VOB MoHsr Paid ovkb: McAWider v, EoffmoKi^
16 Am. Dea 666, and note.
FOOG V. VlBGIN.
[19 Uinn, 863.]
V^"— ov A PB01UB80KT NoTB Who Descbibb THSMBKLysB in the body
of the Inftmment es tnuteee of an unincorporated aaaodation, but who
■ign the same in their individiial capacity, are personally bound thereby.
OBjaonoN THAT All thb MmnigBa of an Unikoobpatbd Asbooiation are
not joined in an action on a promiaaory note given for ita benefit^ must be
by lilea in abatement.
AssuiffPSiT on the following note: '^ For ybIuc recdTed, we, the
trustees of the Wayne Scythe company, promise to pay Asa
Gile, or his order, one hundred and serenty-three dollars and
thiriy-seren cents, to be paid in one year from date, and inter-
est. Uriah H. Virgin, Comfort C. Smith, Ezra Fisk." It was
admitted that the aboye note was executed by the defendants,
and indorsed to the plaintiff, and that defendants, with several
others, had associated themselres, under the name of the Wayne
ScTfihe company, but had never incorporated; and further, that
the defendants had been chosen, and at the time the note was
given, were acting, as the '* trustees" of the association.
Bmmo/n»^ for the defendants.
J9btoe, for the plaintiff.
By Court, Weston, G. J. The defendants sign as individuals,
affixing to their names nothing indicating a representative ca«
pacity. They describe themselves, in the body of the instru*
758 Fooa V. ViBom. {Maine^
ment, as tnurteea of the Wayne Scjrthe company; but tliey do
not profess to promise in their behalf. It is a mere description
of themselyes, of which many examples may be found, where
the persons, signing or execatLng^ instruments, have been held
personally bound: Thacher el al. y. Dimnnore, 5 Mass. 299 [4
Am. Dec. 61]; Foster v. FuUer, 6 Id. 68; Ta/i v. Brewster ei
al., 9 Johns. 384 [6 Am. Dec. 280]; Stone y. Wood, 7 Cow. 453;
[17 Am. Dec. 529]; EUla t. Bannister etal.,8 Cow. 31; Burred
T. Jones et al.,S Bam. & Aid. 47; Eaim y. BeU, 5 Id. 34. In
the cases cited for the defendants it is manifest that the actoal
signers of the instruments adduced in evidence, were acting in
behalf of others, whom they intended to bind, without assum-
ing any personal responsibilily. The distinction is well illus-
trated in the case of Barker y. 2*he Meohanio Ins, Oo.^ The
defendants were attempted to be charged on a note, in these
words: " I, John Franklin, president of the Mechanic fire in-
surance company, promise to pay to the order, etc., for yalue
reoeiyed. John Franklin.'' He was held personally bound,
and not the company. And it was further held, that the l^gal
effect would haye been the same if the same description of him-
self had been added to his signature. The court say: " He de-
scribes himself as president of the company, but to conclude
the company by his acts, he should haye contracted in their
name, or at least in their behalf.''
But if the company are bound here, and such was the inten-
tion of the contract, the plaintiff is entitled to judgment. The
company are not incorporated, and haye therefore no corporate
name by which they can sue and be sued. They are a yoluntaiy
association of individuals. The case finds that the defendant
were members of the company at the time the note was made.
If other members should haye been sued, they should haye dis-
closed their names and taken advantage of the objection by a
plea in abatement. Trustees of ministerial and school fund in
Button y. Kendriek, 3 Fairf. 381.
Judgment for the plaintiff.
Followed in Barlow v. OongregaUandl Soe, m Lee, 8 AUn, 468; Pawer$ ^
Brigg9, 79 la 495.
SiONiNO NoTB BT AoENT: See Long v. CoBmm, 6 Am. Deo. 160; Pento t.
Stanton, 25 Id. 658, and note; AfeClure v. BenneU, 12 Id. 228, where the
tnuteea of a oorporation were held personally liable on a pcomiBSory note
•igned and sealed by them individnally: Barker r, Meekan^ ^^ H^, 28
Id. 664.
1. 8 Wend. M; B. a, 90 Am. Dee. 664.
June, 1841.] Perbin v. Eeene. 759
Pebbin v. Keens.
[19 UAOat, 866.]
FABnrxB AmHOBiZED to Settle and Ajdjvvs the ooptttneonhip tJbSn^
can not make new contracts, or create new liabilities, as by giTing prom
inory notes binding on the firm.
Pbomissort Note Givek in Settlement of an account, is only prtoiayacit
evidence of a discharge, and is open to explanation.
Amendment will be Allowed in a salt upon an invalid promissory note^
given in settlement of an acooimt, by incorporating a count upon the
original indebtedness.
Assumpsit on three promissory notes. Defendants had been
partners, under the name of Keene & Weston, bat had dissolved
on Norember 12, 1837. Upon dissolution, Weston was author-
ized to settle and adjust its afiiEurs. He gave the notes in ques-
tion, signed by the firm name, to plaintiffs, in settlement of their
account, without the express authority of his partner. Upon
the trial, plaintifffl asked leave to amend their declaration, by
settitLg forth the original indebtedness. Upon the foregoing
facts the rights of the parties were submitted to the court.
J. H. WiUiamSy for the plaintiffa.
Vo9e and Lancaaierf for the defendants.
By CouBT. Weston had no right to sign the notes in suit in
the name of the firm, unless he derived it from the authority
given him to settle and adjust the copartnership business. This
does not give him any power to make new contracts, or to create
new liabilities, binding on the firm. No such power can be de-
rived from the agreement that Weston should settle and close
the business of the firm. The notes, then, are made and deliv-
ered, without authority, and are not valid against the firm.
Is the account still existing, and may it properly be intro-
duced into the writ by way of amendment, by adding a new
count for that purpose ? lu England and New York a note given
on the settlement of an account is not a discharge of such ac-
count. In this state and in Massachusetts it is otherwise. But
in these states it is held to be only prima facie evidence of a dis-
charge, and, of course, is open to explanation. Hence in Van-
cleefy, Therasson^ 3 Pick. 14, it was held that when a note was
given in New York, in discharge of an account, and the suit
was commenced on the account in New York, that the plaintifi
could not, under leave to amend, file a count on the note, be-
cause it was a new and distinct cause of action. The note, by
the law of New York, not being a payment, did not discharge
760 Phillips v. TSjsqfteld. [Maine^
the account. But in BaU y. Claflin, 5 Id. 303 [16 Am. Dec. 407),
with perfect consistency, it was held that the giving of a new
note is not a payment, and that both may be considered as the
same cause of action. So in this state, in NewaU y. Hussey
[arUCy 717], in the county of Lincoln, it was held that when aa
account is sued and a note had been given for it, that the nolo
could not come in by way of amendment, being a new cause of
action. This note, given without authority, does not extinguish
the account. If it did it would be a new cause of action. If not,
then the account remains the same subsisting demand, and may
be brought in by way of amendment: 5 Pick. 303. If the notes
were given without authorily, they were not a payment of the
debt, and the account remains undischarged. It may be said that
the note Unds the agent or partner who made it, even if he under-
takes to use the copartnership name without authority. The an-
swer is, it can bind him alone, and the plaintiffs did not intend to
take the note of Weston alone. They meant to have the secu-
rity of the copartnership. The note, then, being the note of
Weston alone, the presumption of payment is rebutted.
The notes having been declared on as the contracts of the
parties sued, and being for the same subject-matter as the ac-
count, and not having the legal effect to dischaige the account,
the amendment may be rightfully made.
The defendants must be defaulted.
Followed in Parham Sewing-maeMne Co, v. Brock, 118 Mms. 196.
Pabtzter Empowebbd to Ssttlb Avtaibs op FntM on its disaoLatiQii oaa
not bind hia oopartnen by creating a new debt: NcU v. Dcnfmimg^ 26 Am.
Dec. 491; WOaon ▼. T<^beri, 21 Id. 632; Rooiu t. WeHford, 6 Id. 61P, and
note; Chardon v. OUphaiUf Id. 572, and note.
lNHABirAin?s OF Phillips v. Imhabecaitib of
KlNGFIELD
[19 HAUnE, 876.]
Impkaohment 07 Witness. — Particular Acts of iBmoBALiTr or crime can
not be testified to for the parpose of impeaching a witness; general char-
acter for truth can only be inquired into.
Qbheral Chabaotbb vok Truth kat bb Pboted as a fact, and the jnrj
are then to form their own opinion respecting the witness' credibility.
Form of Ikterbooatort ik such Case, may be whether the person tes-
tifying knows the general character of the witness, and if so, what is hia
general reputation for truth.
Oaoes-EXAMiNATioN IN SUCH Oasb may extend to the opportunity for know-
ing the witness' character, for how long and how generally onfaTorable
reports preTailed, and from whom they were heard.
June, 1841.] Phillips v. Kingfield. 761
Residcncb is C&anoed where a man goes aw&y with a determiiiation of
taking np a permanent residenoe In a particular place and does so take
up his abode. Residence may be abandoned without evidence that an*
other has been secured; but it is otherwise as to the place of legal settle-
ment.
EzpssssiON OP Opinion on thb Statb op Faoib by the lower court is not
matter of legal exception.
To Impeach a Witnb» it is not allowable to ask another if he would believa
the witness under oath.
Assumpsit for supplies fainished the wife and daughter of one
Isaiah Wood. General issue and joinder. Conflicting evidence
as to the place of settlement of Wood, and in regard to the
Tarious places of his residence between January, 1816, and
March, 1821, was introduced. The plaintLBTs then called Wood,
and defendants gave evidence tending to show that his character
for truth and veracitj was not good. Emery, J., presiding, in-
structed the jury as follows. 1. Where a party attempts to im-
peach a witness, that party can ask only what is his general
character for truth and veracity; but the other party may ask his
character under oath and to t^e belief which the one testifying
would entertain of the one under oath, who is attempted to be im-
peached, and confine it to that. 2. If a man has a home, a tem*
poraiy absence to seek employment does not take it away. 3. If
a man go away with a determination of taking up a permanent
residence in a particular place and does so take up his abode,
his former residence is changed. 4. The testimony of the sup-
plies furnished the wife of said Wood, is of no other use than as
helping to show an intention to abandon his wife in leaving her
unprovided; because the mere circumstance of supplies would
not change the effect of the act of 1821, inasmuch as he had no
control over the members of his family at the time. EzceptionB
to these instructions were taken and allowed.
Iknney, for the defendscnts.
WeUs, contra.
By Court, Sheflet, J. One of the questions presented re-
lates to the manner of examining a witness, who is introduced
to prove that another witness is unworthy of credit. The
authors of the elementary treatises on evidence do not perfectly
agree in this matter; and the cases upon which they rely for
their statements, are generally those arising at nisiprms, where
there was little examination or disctission of principle. The
rule as stated by Peake is,. that '' viva voce evidence to destroy
the credit of a Witness must be that of persons, who have known
762 Phillips v. Eingfield. [Haine^
his general ehazaoter, and who take upon fhemselyes to swear
from saoh knowledge, that thej would not believe him upon hifi
oath:" Peake's Er. 88. The role as stated by Phillips, is in
substance the same. He sajs, ** the regular mode is to inquire
whether th&y have the means of knowing the former witness'
general ohaxacter, and whether from such knowledge tfaivy
would belieye him on his oath:" 1 Ph. £t. 229.
Starkie says, " the proper question to be put to a witness for
the purpose of impeaching the general character of another is,
whether he could beUeve him on his oath? When gexynal
evidence of this nature has been giren to impeach the character
of the witness, the opposite party may cross-examine as to the
grounds upon which that belief is founded:" 1 Stark. Ey., ed.
by Met. 182. It will be perceived that the langnage of the last
rule does not lunit the witness to his knowledge of the char-
acter of the former witness for truth, but permits him to form
his opinion from any knowledge,' belief, or reputation, that the
former witness has committed some crime, or been guilty of
some immorality. And accordingly it has been held in North
Carolina and Kentucky, that a party is not confined to the
reputation of the former witness for veracity, but may impeach
his general moral character. Under a literal application of the
rule as stated by Starkie, the witness can form a law to suit
Tiimaftlf as to what degree of moral delinquency shall be suffi-
cient to destroy the credit of the former witness, and can apply
his own law as his personal prejudices, errors, griefs, or in-
terest may dictate. And if the opposite party may inquire into
the grounds, upon which his belief is founded, the result is,
that every description, and every act of private vice and im-
morality and the prevailing suspicion of them, even if slan-
derous, may be introduced into a court of justice, and that
against one who is neither called upon, nor prepared to meet
them. It is however a well-established rule, that no particular
acts of immorality or crime can be stated. It would be pro-
ductive of much wrong to individuals as well as degrading to
the administration of justice to expose within its halls the
private vices and immoral acts by reputation connected with the
characters of witnesses.
In the case of Carlos v. Brook, 10 Yes. 50, the lord chanceUor
says it had been decided to be competent to examine any witness
to the point, whether he would believe that man upon his oath.
It is not competent, even at law, to ask the ground of that opin-
ion, but the general question only is permitted. The rule, as
June, 1841.] Phillips u Einofield. 763
stated by Swift, is more satisfaoioiy and less liable to abuse in
pzactioe. He sajs, the only proper questions to be asked axe,
whether he knows the general character of the witness in point
of truth among his neighbors, and what that character is, whether
good or bad. And states, that his testimony must be founded
on the oommonrepute as to truth, and not as to honesty: Swift's
Et. 148.
One acquires a character for truth or the veyerse, as he does
for honesty, or chastily , or temperance, or the reverse. And it is
this trait of character as a fact, that should be placed before a
jury for their consideration in weighing the testimony. The
opinions of a witness are not legal testimony except in special
cases; such, for example, as experts in some profession or art,
those of the witnesses to a will, and in our practice, opinions on
the Talue of property. In other cases, the witness is not to sub-
stitute his opinion for that of the jury; nor are they to rely upon
any such opinion instead of exeroiBing their own judgment, tak-
ing iuto consideration the whole testimony. "Wlien they have
the testimony that the reputation of awitness is good or bad for
truth, connecting it with his manner of testifying, and with the
other testimony in the case, they have the elements from which
to form a correct conclusion, whether any and what credit should
be given to his testimony. To permit the opinion of a witness,
that another witness should not be beUeved, to be reoeiyed and
acted upon by a jury, is to allow the prejudices, passions, and
feelings of that witness, to form, in part at least, the elements
of their judgment. To authorize the question to be put, whether
the witness would belieye another witness on oath, although
sustained by no inconsiderable weight of authority, is to depart
from sound principles and established rules of law respecting
the kind of testimony to be admitted for the consideration of a
jury, and their duties in deciding upon it. It, moreover, would
permit the introduction and indulgence in courts of justice of
personal and party hostilities, and of every unworthy motive by
which man can be actuated, to form the basis of an opinion to
be expressed to a jury to influence their decision.
The observations of justices Gibson and Duncan, in the case
of Kimmel v. Kimmel, 3 Serg. & B. 336 [8 Am. Dec. 655] are
just and appropriate. Mr. Justice Gibson says, " there is dan-
ger from the proneness so often observable in witnesses, to sub-
stitute their own opinion for that of the public, whose judgment
can not be so readily warped by prejudice or feeling as that of
the individual; and hence the policy of not requiring any inti*
764 Phillips v. Kinofield. [Maine^
mate degree of knowledge respecting the person himself, or of
bringing the witness too dose to the scene. The reputation of
the neighborhood is the only thingthat is competent; and if the
witness has acquired a knowledge of it by the report of the
neighborhood, he is exactly qualified to be heard." Mr. Justice
Duncan says, *' opinion will not be evidence, for if it were, no
witness would be safe from the shafts of calumny. No man is
to be discredited by the mere opinion of another." In Wike y.
Lighiner, 11 Serg&B. 198, Tilghman, G. J., says, '' thelaw on this
subject is accurately laid down in Kimmelr. KimmeL In order
to discredit a witness, you can examine only to his general char-
acter;" and again, you must never depart from general character. "
As to the question, whether he would belieYe the other witness
on oath, he says, " a direct answer would not be objectionable,
provided the belief was founded on the witness' knowledge
of his general character; otherwise, it would be nothing to the
purpose." The mischiefs have to some extent been already
stated, which might arise from permitting the witness to give
his own opinion; and this remark of the chief justice is at va-
riance with those before quoted from the case of Eimmel v. Ktm-
mely where the law is said to be accurately stated.
In ChsBY. SHnson, 2 Sumn. 610, llr. Justice Story says, ''where
the examination is to gener^ credit, the course in England is
to ask the question of the witnesses, whether they would believe
the party sought to be discredited, upon his oath. With us the
more usual course is to discredit the party by an inquiry, what
his general reputation for truth is, whether it is good, or whether
it is bad." In the case of Peoj^ v. Mather, 4 Wend. 257 [21
Am. Dec. 122], the subject is discussed, and it is said, ''the
rule, which, everything considered, has been found safest on
this subject, is to allow general evidence to be given of general
character."
The true principle appears to be, to allow the character, which
a witness has acquired for truth, to be proved as a fact in the
case, from which, combined with all the various other matters in
the testimony tending to establish or to impair it, the jury will
form their own opinion respecting the credit due to his state-
ments. The words of the interrogatory, by which such testi-
mony is to be extracted, are not very material. Perhaps as short
and useful a form as any, might be to inquire, whether he knows
the general character of the witness ? and if the answer be in
the a£Srmative, what is his general reputation for truth ? And
on the cross-examination, the inquiry may extend to the witness'
June, 1841.] Phillips v, Eingfield. 765
opportunity for knowing the character of the other witness; for
how long a time, and how generally the unfavorable reports had
prevailed; and from what persons he has heard them. This
will present the whole facts respecting the character for truth to
the jury; and that is all that can be legitimate or useful. Eveiy-
thing else is much better suited to mislead, than to instruct them;
and after this decision has been regularly published, will in our
practice be excluded. It does not appear that the presiding
judge did more in this case than make certain remarks respecting
the proper course to be pursued in the introduction of testimony
of this description; or that any proper testimony was excluded,
or that the party was in any otiier way injured by them. And
they do not, therefore, whether correct or not, afford sufficient
reason for setting aside the verdict. The second proposition is
not the subject of complaint.
In our pauper laws, tibere is a marked distuiotion between the
place of residence, or home, and the place of legal settlement.
The latter can not be changed without acquiring a new one.
The former may be abandoned, without evidence that another
residence has been secured. The third proposition relating to
this subject is correct. And if, as the counsel assert, it was ma-
terial to know whether a residence might be abandoned without
evidence of a new one acquired, a specific instruction might have
been obtained by a request. If the fourth proposition be objec-
tionable, it is so, rather as an expression of an opinion on the
state of the facts, which is not a matter of legal exception, than
as an exhibition of the law arising out of them. It assumes,
that it was clearly established by the proof, that the husband
had no control over the members of his family when the supplies
were furnished; and if he had no such control, the instruction
was fully authorized by the case of Oreen v. Biu)kfield, 8 Qreenl.
136. If the counsel thought that the assumption was unauthor-
ized and injurious to the rights of the defendants, they might
have requested instructions, that if the jury should find, that the
supplies were furnished to those under his care and protection,
he would not acquire a settiement in that town by the act of
March 21, 1821.
Exceptions overruled.
Imfeachino Witnesses. — ^Tho credit of a witnesB oan be impettohed only by
evidence of his general character: Allen v. Toung, 17 Am. Dec. 130; Evan$y.
Smith, Id. 74, and note. The following decisions support the position that a
witness may be asked what is the general reputation of the person sought to
be impeached, and then whether he would believe that person under oath:
Jilue V. Kil^, 15 Id. 95, and note; People v. MtUher, 21 Id. 122; Cheee v.
Ckeee, Id. 351.
766 Fabrab v. GnjCAK. [Uaixie,
FaBBAB V. OiLMAH.
[19 ICazsi^ 440.]
CAsmE^ iMDOBniaiiT of Kbqotiabu Paper twlonglng to Hm bank ia
prima fade •vldenoe of a legal tnnsf or.
Aonosr on a piomiflsoiy note, the defendants consenting to be
defaulted subject to the opinion of the conrt whether an indorse-
ment of a note payable to the order of a bank, by the cashier,
•without any other proof of his authoiifyy passed the property in
the note.
Ottman^ for the defendants
E. G, JBouwon, contra.
By Oourt, Wisiov, 0. J. N^gotiaUe notes of hand and bills
of exchange are often negotiated to and from banks, and from
one bank to another. Nothing is more common than paper of
this kind, bearing the indorsement of the cashier of a bank, in
his official capacity. And it may perhaps be assumed as a uni-
Yersal usage, that when instruments of this description are in-
dorsed or transferred by a bank, he becomes their organ for this
purpose. It may not be necessary to decide, that he may do
this without special authority; and such an assumption might
well be questionable. But as he is held out to the public as the
confidential officer and actuary of the bank, as he is under bonds
for the faithful performance of his duties, and as he acts as their
organ in the transfer of negotiable paper, it is not in our opin-
ion too much to hold, that when he indorses such paper, be-
longing to the bank, in his official capacity, it is prima facie
evidence of a legal transfer. In Folger y. Chase, 18 Pick. 63,
the authority of the cashier was proved by a vote of the direct-
ors. But Wilde, J., who delivered the opinion of the court,
says: " We think the indorsement by the cashier, in his official
capacity, sufficiently shows, that the indorsement was made in
behalf of the bank." In the VnUed Statee v. Eliijah D. Greene
et al., 4 Mason, 427, a note, the property of the bank of Passa-
maquoddy, was indorsed by their cashier to the plaintiffii. Hia
authority to do so, does not appear to have been proved, noz
was it questioned.
Judgment for plaintiff.
See a parallel decLuon: BvertUy, Banko/(TnUed Siaies^ 91} Am. Deo, S&L
Ab to the duties of the president and cashier of a bank, see LeggeU v. N. /•
M. df D, Co., 23 Id. 728.
fnne, 1841.] Eddy u Bond, 767
Eddy v. Bond.
(19 Xaihb, 461.]
Bell ob Nora Patablb to a Pxbson Naicxd, or beazw, is payable to
bauer, and one ooming into possession of it for a TalnaUe oonsidatatkn
lawfoUy, is not reqnired to show any oonsideration betwaan tba makar
and the person named.
AiffSBiNO ▲ Nora IBOM "I FBOunoT to *'Wb Fboiobx,*' by a par^ to
the note, before it is negotiated, is not a material alteration.
AmasQ TBM Namb or ah ATmnNO Witmiss to a note, before its nego-
tiation, is not a material alteration.
Ajoebatiov not Appajubkt on iNBPaanoN, and whieh was made be-
fore any one as holder or payee had any legal daim npon it, and while it
waa still in the hands of one of the promisors, mnst be presomed to ha^e
been made by their oonsent.
Assumpsit on a promissoxy note, payable to GKIbert Enowlton
<nr bearer. The facts of the case, so far as they are essential to
an understanding^ of the deolBiony appear from the opinion.
Yerdiot for the plaintiff.
J. A. Poor, for the defendants
A, O. JetoeU, contra.
By Ooort, SREeLBT, J. The presiding judge dedined in-
structing the jury as requested, " that (the note) being payable
to Gilbert Enowlton or bearer, unless some consideration
passed between the payee and the makers, it could not be put
in circulation by any other person and become binding oil
them." A bill or note payable to a person named, or bearer, is
payable to the bearer; and one coming into possession of it for
a Taluable consideration, lawfully, is not required to show any
consideration between the maker and the person named: Bui'
lard y. Bell, 1 Mason, 252; EUis y. Wheder, 3 Pick. 18; Pierce
y. Crafts, 12 Johns. 90. And a compliance with that request
was properly refused.
The note as originally drawn and signed, was made to read,
''I promise," and was altered to read, ''We promise;" and the
jury were correcUy instructed, that the alteration was not mate-
rial. As first drawn, the signers were jointly and seyerally
boimd: Ilemmenway y. Stone, 7 Mass. 58 [5 Am. Dec. 27]. The
alteration limited their liability to the holder; and did not
<*hange their legal rights in relation to each other. It was not
made by the holder, but by a party to the note before it was ne-
gotiated . The attestation of a note by one, who was not present.
768 Eddy v. Bond. [Maine,
and did not see the maker sign, has heen decided to be a mate-
rial alteration: BracheU y. Mownfori^ 2 Fairf. 116. The pre-
siding judge, on this point, instnicted the joiy, ** that the addi-
tion of the subscribing witness without the knowledge or con-
sent of the promisors, if done fraudulently, would render the
note void; but that if the name of such witness was added be-
fore the note went into the plaintiffs possession, the law would
presume, that such alteration was made with the knowledge and
consent of the defendants." Considering the testimony in the
case, the use of the language, "before the note went into
the plaintiffs possession," was equivalent to saying, before it
was issued. And a note is not considered as issued before it
comes to the hands of some one entitled to make a claim upon
it: Sherrington y. Jermyn^ 8 Car. & P. 374. In Henman t.
Dickinsany 5 Bing. 183, it was decided, " that where an alteration
appears on the face of a bill, the party producing it must show,
that the alteration was made with consent of parties, or before
the issuing of the bill." And in Johnaon y. The Duke of MaarU
horoughy 2 Stark. 313, where the date of the bill appeared on the
face of it to haye been altered by the acceptor, Abbott, J., said
that " he could not presume one way or the other, and unless it
could be proyed, that the alteration was prior to the acceptance,
the bill was yoid for want of a new stamp." It was then proyed»
that the bill was in the x>ossession of Wooddison, the drawer^
after the acceptance, and this was held to he prima facie proof,
that it had not been previously negotiated. In the case of the
Cufnberland Bank y. EiaU, 1 Halst. 215, it was held, that an
alteration apparent on the face of a note was not to be pre-
sumed to haye been made after its execution. It is not neces-
sary to express any opinion on that quesion in this case. The
cases of Eenman y . Dickinson, and Johnson y. T^ Duke of Msrl-
borough, are noticed only for the purpose of showing, that they
proceed upon the principle, that where the alteration appears to
haye been made before the bill or note was issued, it is not pre-
sumed to be fraudulent, and does not destroy its yalidiiy. In
the case of Farmer y. Band, 14 Me. 226, and 16 Id. 453, the
note had been negotiated, had passed out of the hands of the
maker, and had been indorsed by the several parties before the
alteration was made. And it was contended that after such
proof, it was to be prestimed that the alteration was made by
consent, but it was decided otherwise. That was a case of an
alteration not apparent by an inspection of the note. And so
Jime» 1841.] Fish u Jacb3£AN. 769
18 file one now under considerationy and the testimony ahowB,
that it was made before the note was negotiated, although after
it had been signed and offered for negotiation. An alteration
not apparent on inspection, and which was made before any one
as holder or payee had any l^gal claim upon it, and while it was
in the hands of one of the promisors, must be presuned to
haTebeen made by their consent. The role, that fraud or crime
IS not to be presumed, wonld apply in such a case.
Bxoeptions overruled.
Wbat n ▲ Matooaj, ALnmAnoH aw ▲ NioonABUi XmsBuiunrr: 8m
Woodworik T. Bamk </ Amariai, 10 Am. Deo. 230, and tbe disooMion in Hm
note tharato: /^epkma t. Cfrakam^ Id. 485; Bank </ Oa^imomwetM ▼. Jfo
Oftord, 29 Id. a08s L$l€k$t ▼. BaUi, 22 Id. 02$ NeweU r. Mm^b$ny, 28 Id.
201$ AA 7. BmA ^^ OpsmwosmmM, 30 Id. 085; ituftMloa t. JTdCM^K, 13
Id.fi02.
FlHH t;. jACnOIAH.
[l»]CAnn,MT.]
▲onr 10 Mass DmAvn on ▲ PBoioasoBT Koraimol cntlllsd toadaj
belora 1m is boond to gi^s notioes Imt he may wait vntQ tlie next inaiL
HonoB or NoN-PAmirr should bs Sbrt to ths PosrHiftms Nsisan to
the party sou^t to be ohaiged, exoept in remote oouutiy phoss; in snch
ease notifloation by special mnaifinger should be made.
Ih such Ca8I» if a mnssfinger is sent off the morning after vsceiTing notioo
fkom holder's agent that payment had been vefosed, it wiU be a ease ol
due diligenoe.
AssDiiPSEF against the indorser of a promissoiy note. Fish
employed Baker to make demand apon the maker. He did so
on the tweniy-serenth of March, 1839. Payment was rafosed.
By the nest mafl Baker notified Fish of the rafnsaL The letter
did not reach Fish until the evening of the first of April, and on
the following morning he sent a messenger with notice of non-
payment to defendant, who lived some forty-eight miles away,
and in a sednded spot tweniy miles from the post-office. The
messenger reached the defendant on the fourth. The defendant
contended that there was no legal notice of non-payment. Yer-
dict for plaintifF,
A, O. Jewett, for the defendant.
Hodgdorij contra.
By Court, Wbston, 0. J. The plaintiff is not an agent, but
the indorser and holder of the note. H. K. Baker, who was
Am. Dxo. Yok ZXXVI— 49
770 Fish v. Jackman. [Uaindi
employed bj him through Mr. Wells, to demand payment of
the maker, was constitated the agent of the plaintiff to make
such demand. Aocording to the cases cited for the defendant,
an agent is not entitled to a day before he is bound to give no-
tice. The case finds, that in point of fact, he did, by the next
mail after the demand, send notice to the plaintiff. Although
not entitled to a day, he was not obliged either to go himself or
to employ a special messenger. He might avail himself of the
post-office, and, as he sent by the next mail, he made use of all
possible diligence by this mode of eonveyance: Shed t. Brett,
I Pick. 401 [11 Am. Deo. 209].
It is contended that the agent should have SQnthis notice
directly to the defendant. The maker living at a distance from
the plaintiff, it was competent for him to send the note to an
agent for the purpose of tnaTrin^r a demand. This being done,
notice to him of the result by the next mail was, in our judg-
ment, due diligence. It does not apear that the agent knew
where the defendant resided; and if he did, we are quite clear
that a notice sent by the agent to the defendant by mail would
have been insufficient. In the leading case of Ireland et al, v.
Kip, 11 Johns. 231, it was laid down, that if the party to be
served by a notice, resides in a different place or city, then the
notice may be sent through the post-office to the post-office
nearest the party entitied to notice. To this rule there must
necessarily be exceptions. It could not apply to the case of the
defendant, who lived secluded in a part of the country, but
just begiiming to be reclaimed from the wilderness, twenty
miles from any post-office. As the plaintiff was not at liberty,
under the circumstances, to avail himself of the mail, and as it
does not appear that there was any other ordinary mode of con-
veyance to the defendant's refddence, no other alternative
remained but to notify him in person, or to send a special mes-
senger. The plaintiff received his notice the afternoon or even-
ing of the first of April. The judge instructed the jury, that
it would be seasonable if he commenced exertions to give notice
the next day. And in our opinion, this would be due diligence
on his part. The jury have found this fact. It is said, this is
against the evidence, as his letter of notice is dated at Lincoln,
his own residence, on the third of April. The jury might have
deduced from the distance and from the state of the traveling,
upon which all the evidence is not reported, that the letter may
have been misdated. These facts must be taken into the ao-
June, 1841.] Fish v. Jackhan. 771
ooimt OB the question of doe dOigenoe; and thej were proper
for file oonsidenition of the jury. We perceiye nothing in the
raUngof the presiding jadge which calls for correction; and
we are not tetisfied thattilie yerdict is against evidence.
Judgment on the verdict.
Aanrr «o Makb Dkhahd most Givb Notiob of noD-pftymant to hU prln-
cipal, wIm» mut theo notii^ the indoner: 7\amo ▼. Lagwe, 1 Am. Deo. 141.
SirmcnByoT of KoncB.—Mailing notioe to poet-office nearest indoner'e
reildenoe ie radBoient: Wkkwell ▼. John$tm, 0 Am. Deo. 185; Shedd ▼. BreU^
Uld.20lKMAnif^lBatdB<^Colvmbkir. MeOruder, li Id. 211. Orwhere
h k MBt to post-offioe where indoner oaoally goeo for letten: SM ▼. PoyiMi
S Id. Sll; Bmik qf UmUd States r. Lane, 14 Id. 600. Notioe by letter te
la nme town k faMdBeieDt: JfiraiMici ▼. Oify Bm^
INDEX TO THE NOTEa
BoMBinm, bj oo-teBHili what if aD» 16$.
Iiwiinprton ii agajnatygia.
whaftifaD»nO.
9 •ttMhmant of debt befomnotlM cl, 47t.
aotiM to debtor, neoMntyol, 47&
Bavk, how far liable lor aoti of notvyflBiployod by il^flMi
BoiTA Fn>B HoLDiB, penantddngnotetoeeoiireaiteQedflnidaM^
CUmBfiB, iMMBnger iajuied by n^gleet of, 287.
ComsnonovAL Law, epeoud aoti mthoriring aale of miiicjiliwtiti^ HL
CrarfXTAjroiy Judgment or deciee wbcn operetee ee e» 87-40.
CtaroRAnoir, knowledge of oflBoen, irhmk eqnivelont to notioe to^ 19Mtl
aotloe ol tend, lOi.
aotloe to agent before eomimmoement ni hie agenoy, lOOl
Botloe to agent moat be within aoope of agenoy, 180l
notloe to agent or offioar ol, 18S.
aotloe to agent who la alao aotiqg lor another, 198L
notloe to agent whoee inteieati are ad?«rM to principal^ ItL
notloe to oaahier, lOS.
notloe to direoton aa » body, 106^
notloe to general agent of, lOi.
notloe to indirldnal direoton, I06b
notice to» moat be given offioer of propar departBMBib IflOl
notloe to offioere of oorporatkm, lOS.
notloe to offioen of muntdpal oorporationa, IMl
notloe to stockholder, 199.
notloe, nnoffioial and prlTato^ not binding, 180.
private knowledge ol indiyidnal direotora, 197.
Co-«NAiiT, liability for nae and ooenpation ol the oommnn pNpvl^
trorer or treepaM by the one against the other, 872L
CUKXNAL Law, falae pretenaea, in what the orlme oooal8ti» 800L
inaanity aa a defenae, 402-411.
statutory miademeanor, certainty required in informatioo ta^ Mft
Damaom, for i^juxiea arising from pnblio worici^ 487.
DiCRiB, where divests title per se, 87.
statute giving effect to, on the title, 88.
Dbed of sheriff, misredtal in, effect of, 102.
of sheriff, recitals required, 102.
of sheriff; variance between and judgment, 108.
v^
774 Iin)£X TO THX NOTBL
I>ilinfioir» of oo-€mployMt, 287, 28&
ol MJow-Mrranti, 287, 288.
ni ogtokm iHiidh ditqnaKflw a fuant, (ttX
ItaiAW-aKTAm doBned, 2879 S88L
IviNXMBii nolino in mm of doooMo of, 806L
Imimtt, oontmol o( for nooMMrioo, SML
oontnot of, haw ntifiod* S96b
ooBtnofc with, if Unding on tho adnlfti S07*
hftTing tnutto ouiy bo bomd by HmltiUnn, 08.
hdn of /Me oomH whon not borrtd by oImMo of
monlago of, offisot on steteto of limftrtioni, OOl
mtwmoAt whothor out noovor for M|^aol of
hmurm, bmdM of proof o( 410.
dirfnM oJ^ to indiotnont for osinOi^OS*
dolntioof, oot dooo midor InflnoDM of, 4fK§ 40$*
bonioidol iMnin, 407.
Midk»l man, opiniooo of iHiM miqr bo tol
poww to rMitt Inauio impnlM^ 408L
pMpondoraiiM of oTidoiiM io MflloUBl^ 4101
pwwmptioii 10 ogftingt» 400.
tort oi( oiiM diiregudin^ 408.
tort of, Chief JnotiM Bnmt\ 410.
tort of, Chiflf JnrtiM Tlndal*tab 401
torto^ Loid Bnldno'i, 408.
tort of , Lord Hale'kb 402.
tort of , Lord Lyndhnrrtfo, 404.
tort of. Lord l£anifiold^^ 404.
tort of, Mr. JnrtiM Tmoey^ 400.
tort oi; iho tw^TO JndflM', 400.
Itooamr, of portttloo, ito oiFort on tMB^ Ml
rtrtatoo giring to, ofbrt on tMB^ 88.
tillo, offBrt oo, of Jndgmont in fodml ooori^ 881
title, when diverted by, 87.
JPiW>Mj. biM OMinrt oertiUn ofBbnoee, S8^
biM ogMort prisoner's raoe or ooXUng, 688.
boxden of uroof . to show diMoslifiosition of. 8B^
hypothetioel opinion of, 628.
newspaper eooonnts, effort of, if xeod« 08BL
nrt disqnslifled by heeiing eridenoe, if ho lotm ao
opinion oonoeming oharscter of aoonsed, 688.
opinion founded on knowledge of fmaim, 021.
opinion not the resolt of pr^ndioe, 621.
opinion of, ohareoter of, and not ito sooxooy is the
opinion of, eflbot, where oonrt tliinJcs lio osa nndnr imgiffttol
626.
opinion o^ effect, where jnror thinks ho osa tiy
opinion of, founded on heanay, 628.
Index to the Notes. 775
mVMffBMf opinion cif f onndod on nowipapor And otfanr roporli^ Wft-Wfc
opinion of, f oonded on reading or hearing evidonoe, 028.
opinion of, light, transient, or hypothotieal, fiM.
opinion of, moat be fixed, 52S.
opinion o^ snffioient to dinqnalify, 628.
opinion o( wlien dinqnaliflee in United Stateo, 522.
opinion of, where evidenoe ii required to remofo it^ 887*
opinion on part of fMste of oaae, 080.
opinion on the law of the oaae, 081.
opinion that pxiaoneir haa been anffioiently pmiriiidf 888b
opinion* to diaqnalHy, need not haTo bean aTpwaiaJ, 888b
aonmlaa aaainat oertaln fci™i« of oflBnaaa* fiSL
teat of qnalifloatiffln o^ 821.
LDOcanoin^ SEanm or, abaanoa from the atata^ Ti^
abaanoea, anooaaiiTBi 74.
bagina to mn when oanaa of aotloa aomiiaa» 107.
bqrond aeaa, axoeption of, 7S.
diaabilitifle, anooeadTe, 78.
diaabiUtiaa under, 68.
diaaUlity of one, effect on othera, 77.
>hwaeoeerf, diaafaililQr of, 00.
/■ne-ooaeri, diaability of, how aflbotad bj ataMa^ 88l
tot, when paaaed, 36-68.
foreign oorporationa, when bagina to mn In favor o^ 98L
fraad, when prevents running of, 107.
impriaonment, diaability o^ 72.
in^t, heira of >%»ie-eMWi, 60.
infanVa righta are barred if he haa a Uuatoa^ 8Bl
hinatio, diaaUlity of, 71.
onoe b^gnn oontinuea to run, 68.
retnm to atate, what la a» 76. j
dave, diaabiHty of, 72.
LDxano, atatnte of Umitationa, diaability under, 71.
ILUBZAOX, oertifioate of, when admiaaihla in ovidanoa^ 786l
oonfeaaiona of party to, evidenoe of, in oriminal oaaaa» 747*
criminal trial, proof of, on, 745.
foreign, proof of, 166.
general roputation of, andoohabitation, evidenoao^ oncriniaallria^Ni^
747.
general reputation of, evidenoe of, on oriminal trial, 746.
official character of party performing oeremony, proof of, 78QL
proof of law under whidi it waa celebrated, 751.
promiae of, inferred from circumatanoea, 347.
teatimony of witneaa preaent at oeremony, 760.
wife not permitted to teatify to fact of, when, 749.
ifAMtTKTt WouAN, deed of, how executed and correotioii o( 86.
atatnte of Umitationa, effect of atatutea authorizing auit by, 6Bl
atatnte of limitationa, when does not mn against, 36-69.
when not permitted to testify to fact of marriage, 749.
776 Index to the Notes.
liAflKBE Ajn> SsBYANT, care whidh mastor mnst me in aeleotbig
oontribntoiry negligence of eemuit^ 280.
dnty of master to dinniM servant who becomes inoompeteB*^ ttS.
fallow-servants, servants of contractor and d sab-oontrastor an aol^
iellow-servant^ sub-contractor Is not a, 288.
lsllow-servantB» who are, 287, 288.
i^Jniy to ona servant by negleotof aaotfaer, 270.
Uabflity of master to servant who is dixeoted to do
284.
negligence Is groond for reuoveiy, 282.
r, wban liable for iajoriea resnltiwg from n^i^afll ol
nts,282.
r, iHm responsibb for iojnxy to servant* 288.
minor servant essninw same rIdL as adult* 282.
oifgin oi rule regarding injuiy from n^lect of geilaw sis laiiii 9B0l
servant assumes all ordinary rislcs, 281.
servant assumes risk of n^leot of otiier servants, 5E81.
servant^s recovery for ne^^igence of master in seienting
low-servants, 286.
MmnoiPAL OoBFO&ATXOVs, grading streets, liability for* HBk
grading streets, power with respect to* 129.
liability for acts of riotous assembly, 84
liability for malicious acts, 84.
liability for n^ect to remoTo nuisance, 84.
Hflouosiran, actor fslUng through stage, from neglect of
coitttribntoiy, of servant, 280.
light, failure of Tessel to keep* is* 237.
of f eUow*servant, no ground for recovery, 270, 290u
of feUow-servant* origin of rule regarding, 280l
of f eUow-eervant, roaeone of rule regarding, 280.
of master, what, ground of recovery for servant* 28S.
Honon* private and unofficial, not binding on cotporatioe* 188L
to agent acting for two persons, 198.
to agent of corporation, 188.
to agent, when notice to principal, 188.
to agent who is dealing adversely to his principal, 190l
HunAVOB, public, injunction to abate at suit of private^person* Slfll
pABnrxBaHiP, dissolution, power of partner after, 811.
RiooBD of deed presumed to take place upon delivery to deriCt 9ttk
Rbpk4L of statute conferring jurisdiction upon a court, 188.
Shbbifv after tenn expired, duties of, 543, 706.
after term expired must consummate procees Initiated within tsrm^ TOOL
after term expired, redemption of, 543.
after term expired, may sell personal property levied upon by him, 707*
after term expired, whether may sell real estate levied upon by him, 70Z.
neglect to perform duties-after expiration of term, 708.
Tbovxb by general owner out of possession, 115.
I^ST, parol declaration to show that purchaser is a trustee, 182.
written acknowledgment, without consideration, to establish, 182.
Index to the Norsa 777
fjuam Boi allofwed to thwart intmt of pwtlei, 2lflL
"WkUJiAotof d^uAnf ewtial, 3Ml
Hoglkli, stotnta ol, Sie.
hoiogniphio, y»lid, tfaon^ it hM but quo witBtM»fllL
inrtniotioM f or« wlm may !>• piobttttd m» tl7«
fartrwitfiTn, iralld m nunenpatiTo will, 818b
knd waa aol dovlnUa at oommon law» 818b
not anoatad, owing to dnraM, 818.
not aiaeatad, owing to Inaanity aaparr«ning» 818i
not linaBj aignadt wlm admiaaihla to probata. 818b
of petaonalty, oaaea in United Statea ragHding tern a^ 818i
af petaonalty, oaaea in United Statea ragHding algniBg a^ 8I8L
af pefaonalty. farm of» reqvired by aanlaafaatlnal law, S18L
817.
on aaparata ahaat of puftg, 881,
^tV^l^fii^ng AimkiMf^i/^^fik KaA— Mm wilbaf laal Md
818.
■jA im wiartgMaaM^ 4)f aabacriptieo In pnaanoa a^
maat a|gn in ptaaenaa of tealator, 880L
aabaoripCioB of tealator mnat be in advaaaa a( 8I8L
INDEX.
ABAinX)NMENT.
See InuBAVOB— Mabihi, 1, i»
ACnONa
U, S7; Cauwmnn Bqxb, 1,S;
Loot Horn; Waoi
ADIONISTRATOB'S 8ALBGL
BuBuuvujKs Ain) AmizinmAiQMu
ADULTERY.
Am ICabbuct ajtb DnroBOi^ % 7.
ADVAKOEBCENT.
8m Pabbst akd Obzld^ t.
ADVEBSE FOSSBSSIOK.
I. CteABVOBliBBSBrAyXBECONYBrAHOBinTnBBDBBIfBDABITBBniO
«
GB4inBB wlMn there is no eTidence tlukt he entered for or under him, bat
wh«e he eeted in wXL reepeoti as the eole owner and olafanentk maUag
leaeei, reoeiving rents, paying taxes, improTing the property, eto., and
mintemipted enjoyment for twenty-one yesn will give him a oomplete
title. Wai9om v. €hrtgg^ 176.
& TaiM OB CoLOB ov TiTLB u Ubbbombabt to oonatitate aa advene poa-
session nnder the statute of limitations. Id,
H Shtbt Aim PoasnaioN bt Onb ov Sbvbbal Hbdm of a person dying hi
adverse possession of land innre to the benefit of himself sod all the oo*
heirs, and the adverse possession is thereby oontinned for the porpoee ol
gsining title. Id,
4 TiTLB bt PBnaBZFTiov OAH HOT BB AoQUiBBD by posssssjon w***^****^^^
panied by any claim of ownership. Wt^er v. Pratt, 681.
(L P08SB88IOV Follows thb Titlb where several are in the oontemposaae-
00s nse and occapation of property. Id,
t» IbCLOBUBB and ClTLTIVATIOM ABB NbOBSSABT TO OoKBTITUTB AdVBBBB
P08BB8BIOR of a tract by one having no odor of title, so ss to protect him
from an action of trover by the real owner for timber cat thereon.
Wright V. Outer, 108.
780 Index.
7. RXPBATID TBUPAflSB BT CUTTIKO TdIBBE OV UlVOOOOnSD WoOD LaKD^
by the owner and ooeopMit of an adjoining tract, do not oonatitato audi
ad^vna poaiwarifin aa to defeat an action of trover for anch timber by the
real owner; and » pozohaaer of the land on ezeention agaanat anch tree*
paaMr, who oontinoea to treepaaa thereon in the aame way, ie equally
laaUe. Id.
t. PoonanoM ov Oini baydio a Bioiit ov Poonsnov unanOHS Tnut. bat
ftlaiming nnder another, the latter being adveree^ the f ocmer not, ia
deemed to be a poaaearion nnder the title which ia not adTorM. NkUU
V. BeiftiMM, 23a.
ti AOTPAL PoaaMfOM OF Ok» Pmvt ia oonatmotively the poeaeaBion 6t each,
according to hia title, althoQ|^ the party in poeeMrinn dalma to be in by
an adTCTM title. Id,
lOl PoHnnovioBTwB3iTT-oaBYBAB8BTA]teraBA8THBLan»orby»lioii8e
or atable, by a party daiming the land aa hia own, condnaiTely eatabliahee
Ua rii^ whether he knowa of an adverae daim by tiie •4j**™*ng owner
or not. Bnmm ▼• MeKimmt}^ UI9.
Sea Oo-CBTAVOT, 1, % 4-6; EiBonoDn, 2; Tvan^ %
AGENCY.
L Wbbb Aamn Silui kb PBoraiPAL'a CkMiMi amd Takh PMnaMosr
Hone tiierBf or, payaUc to himaelf , tiie principal may, before payment,
forbid it to be made to the agent, and a payment to him after thia will
not be good. PUU v. Jfoioer, 727.
t. PUMOEFAL MAT SuB DT HD owK Kami on a OQtttmot d aafe made by hii
agent, nnlem anch contract haa been eztiogoiihed, aa it may be with na,
by taking a negotiable promiae. Id,
tb ViVDOR ov MsBaHAMDUS PuBCHASSD BT A SuBAOBiT of aoother from
whom the merohandiae waa ordered, can not cbaige the peiaon in wlioae
intareat tiie poiohaae waa made, although the aale waa made with tlie
knowledge that the gooda were deatiiied for the nee of anch pereon,
wliere it appeara that credit waa given directly to the indindnal from
whom the gooda were primarily ordered, and not to the one for whoee
naa they were Intended, and that ontil after the inaolyency of the former,
no attempt to hold the latter reeponaible waa made. Nem Oatitie Ufg,
Oo. ▼. Bed River R. R. Ob., 080.
4. FoBBiov Aomrr ob Faotor is PsnaoNALLT Liabu on contracta made 1^
him in the iaterest of the pereon by wliom he ia employed. Id,
A. Aomrr Nxsd not DiaoBma HnmWiF as Such in the contract in anchcaae,
bat in the abeence of evidence showing that credit waa given to tlie
principal, it will bepreemned to have been given to the agent exdnsively.
Id,
0. AourroKTBUBTEBCAK NOT PuBOHAsi AT SaubMadbbtHim for the ben-
efit of hia principal or eutnU que trtut^ without the oonaent of the latter.
RoberUon v. Weatem M, A F, Im. Co,^ 073.
See Common Cabbubs; Bjbotmbmt, 1; Bxbootionb, 15; Nbqokiablb iNstBO*
MBNTB, 17.
ALIENS.
1. Ajuens ABB NOT BxoLUDBD VBOM Inhebitino property of any deeeriptioB
by the laws of Louisiana. Duke qf Riekmomd v. Miin^$ JSx^t^ 013.
Index. 781
% iKOAFAaaj OF Albnb uhdsb thx Laws ov Enolavb akd Sootlaitd «z*
tends to the eoqniritioii of lands or heritable property bj pnrofaaae or
snooeHkm, bot aa alien may, in those oonntries, acquire piopeiiy in» or
make a will of, personal estate, and soe for personal debts. Id,
tb DoKAnoMS mnE yzYoa avd Causa Moans may, under the laws ol Loui-
siana, be made in favorof an alien when the laws of the ooontry of which
be is a eltlien do not prohibit similar dispositions from being asade thsvs
in hiwot of flitlMBS of TiOBisiana. leU
8eeWiLUi,8,4
ALIMONY.
SesMAauAOB ajtb DiTOMabt.
ALLUVIOH.
See Wasbbooujish^ 1*7*
ALISBATIOK OF IN8I!BUM]llil!CL
L AiammxQ a HoraraoM ''IFBoiosif* to "Wb PiMnai%* bj b parlgr Ib
the notsb before It is negotiated, is not a material ahsnitkn. Miif ▼•
Bomd, 767.
t. JijaasQ tarn Hamb of ait ArxBBniro Wizmbss to a note^ betos Its nsfo*
tiation, is not a material alteration. Id,
% AxjKBBAnov HOT Apfabbmt ov ImammoK, and wbkh was made bo>
fove any ope as bolder or payee had any legsl daim upon II, and wldle it
was still in the hands of one of the promisors, most be ptesnmed to ha<vB
been made by their consent. Id,
4L AlABBATIOR OF A DbbD, WKBIT BoUBlTFUIi, WiU BOt WBRBIlt tts SBOlBSiOO
from evidenoe. Davit ▼. AUer, 834^
AMENDMENTS.
L Ambhpmbhts IxTBODnaiNO Nbw Gausb of Aonov are not permitted in
oar practice. And althoogh the allowance of amendments, in eases
wliere they are allowable by law, rests in the discretion of the Judge of
the district court, and will not be revised by this conrt, yet if the jndgs
allow an amendment which the law does not aatiiorise, the party affected
has a right to except. NewaU ▼. JTusa^, 717.
& PLAiKnvr WILL NOT BB Allowbd TO Amesd HIS DBOLABATioir after th*
defendant has been defaulted and the caose has been aigaed npon the ex-
isting counts. Palmer ▼. Tork Bank, 710.
lb AjCEVDMByT WILL BB Allowbd in a suit upon an invalid promissory note,
given in settiement of an account, by incorporating a count upon tiie
original indebtedness. Perrm v. Keene^ 759.
4 Ho Amkbtdmbitt of Plbadim os is Allowbd after the rendition of Judg-
ment. Landry v. Brntgwon^ 006.
ANNUITIEa
Im Fbomihb to Pat Aitkuitt, in Goksidebation of Fobbbababob to sue tho
executors of the grantor thereof, binds the promisor, if the grantor was
personally bound for its payment. HorUm v. Coot, 151.
782 Index.
f. OmunoB OF Ainrunr nr Tmbms is, Puma Faob, PsBflovALLT Bousd te
itepajmaiit^ from whatevmr fnnd pAyaUe, $nd th« oovenant topay impliad
from nioh gmst, oan Im rebaited only by » plain intent on the ikoe of the
instnuiMnt that the annuitant ia to reeort only to the apeoifio fond. /dL
tb Amwvoi to On AS PuaoHAasR Am> not ab BBnEnauBT ahoold be cob-
■Inied aa laTombly towacda the annnitant aa the worda wiQ bear. Id,
APPELLATE COURTS.
See Puunnro ami> PBAonoi, %L
ABBITRATIOK AND AWABIX
See Awards.
ASSIQNMKNT FOB BENEFIT OF GBEDITOBS.
L DmoB matQxtb PunsxHOta amovo his Cbxdrobs; bat i^ in tiie deed
ni aarignment, he nmrtm any advantage to hlmaelf, sooh xeaarvatiOB
Tifciatea the deed, and the advance of additional oonrideration at tlie
time of tiie oonD^yaooe wilLnot ohange sooh reaolt. Amdemm ▼. Jlifler,
t. IdUTZVO A DnnoB ur Poasnnov ot his FBOPHBrr ia soeh a benefit aa
vitiatm aa aaaignment made by him, for the benefit of hie qreditora. /dL
ASSIGNMENT OF OONTBACT.
AMMOoawv or a Ohobi nr Aonov n ot vo BnnoT aa againat 8nb>
aaqnent pmohiaw, withoat notioe, from the lerignor, or againat Ua
attaching orediton, nnlewi within ft reaaonable time after the fttigr-
ment notioe thereof la given to the debtor. VanhutkiHt v. Hartford iire
/am. Oo., 478.
ATTACHMENTS.
L DiBT ON whboh Suit has ucsn Inbtitotid mat bb Attaitiiho in a
proceeding proaeoated in the aame court. SiU v. Lace^^ 440.
%, To Cowfi'iTUTs Attaohickiit, OmcKB NixD MOT AoraALLT Hahdu the
goods attached; bat he mast be in view of them, with the power of eon-
troUing them, and of taking them into poeeeaaion. Nieholt v. jPattoi,
718.
8. BcMTBV or OmoBB, whsbb Hb is a Pabtt, ia merely prieiayhcje evi-
dence of an attachment. Id,
i. To Prbskb VB Attaohmbiit, OmoBB MUST Bbtadi hib Comtbol and power
of taking immediate poapoaeioa. If he fails to do this, the attaohment
wHl be regarded aa abandoned. Id,
& Mbbb Bbqubst Madb bt Offiobb to a Pbbsov to Givb NonoB that prop-
erty has been attached, is not saffioient to show that he anted for the'
officer, anlesa he consented to assume the trust of taking oliaige of the
property for him. Id,
fi. PBOFEBTT under ATTAaHMBNT MAT BB CONVBTBD BT THB DBBTOB, sub-
ject to the attachment. And any merely formal act of delivery wliioh
doee not interfere with any rightcf the officer in rehition to the propsrty,
will not subject the purchaser to en notion by the offioer. Id,
7. Amr Act which Dbpbivbs Osucbb ov Contbol ov Attaohbd Pbopbbtt
will subject the person who does it to an action for each property. Id,
Index. 783
6L Bananov or ram Vommmtov ov PnaovAL Tmomam Bwomd bymtHn&M
or bii dtipatf ii nneatiy to prwery tiM lien of tiio attfthhrnwit,
Ocwer ▼• AeMiw, 787.
ft Sbbbov ouor voT Oonimmi no DnvoB bb Aonr to kaop the pio|^
«rty atteehed. /d.
10. Attaobmiiiy DneoLYBD bt Bbasov ov tbb Voumaas of the inopottj
•ebad rwnmfaing with tho debtor out not bo rtTlTed by notioo. Id,
IL To PMMumiB WHJMum Oii» is A TsimnoriiotiiiiderthoUwQf for-
«ign ottoflhimmt, a iifiial but not neoetnrilj dooiihro tHt io» whothor the
prindpal hM or has not a ligbt of Mtkm ^prfnft the rappooed tmotoo.
Wkitmtif T. Mmroe^ 7S2L
UL IiTiBMrovA JonirOonmAOiOB, nmnHAnooirATtenEBs may bo
TCOfliiod by foreign ottoohimmt, olthon^ the oflbot will bo to aorior tlio
liofamty. Id.
ISi PiaoBirrBsrwBiirTKBBraBiBOvJoiiiTAjmIn>iyiMrALGBiMS0iMi^
not bo in^piiiod into» in a rait by tlio lattor^prfaot tlio debtor^ tmoftoo.
Id.
14L Buui BaQonnro Tbaxsibe or Poomnov and aotool vaoMyfal of par-
■onal inuportjf in oidor to raidor m lalo or ottiohmont tilid m ogninat
ONditoi% is » mlo of pdlioy, tad not of oridoioo; and thewforo proof of
tlio honooty of tlio tranaacttion will not bo anffioiont to removo tlio legid
ofbot of a failora to ramovo property attaohod. Jfltfi v. Oamp), 48ft.
lfl» FAiLina TO Bm OTB FnaoHAL Fbofkbvt Attaobid n BiPoaBD wlMra
the removal of the property oan not be eiboted withoat great injury or
oipenee, or where the remoyal woold oanao material damage. Id.
16. OoRTiinTBD PdflBMBiOH D KBonBA&T to thoTalidityof an afterimient
Id.
17. €k»TDrvALFuuirosovTBB AsiAOBivoQiiioisattheplaoowiierat^
proper^ attaehed liea ia not neoeewy. There will be a oonatHMttra
poeaeenon anffiolent to »»^«^^<»» the attachment lien* if tiie fffftwir do not
aafhr the debtor to regain aotoal poeeeeeion or to egeroiee any aote of
ownerehip over the property* Id.
Ul VcaoBOM AneAOHiaiiv.— Goods OoiraAnnD nr Bosm Swdbblt Fa»-
miSD, eo that their oharaoter ia entirely eonoealed, iHion depoaited with
a third pereon are not liable to attachment by ordinaiy proooM^ bat may
be reached by prooeee against the depodtatyaatmatee. JBbofier ▼. i>a|f»
784.
19. SBiBiff^ Bm OTAL moM Omos doss hot AsAm bb Biobt to retain
poeeeseion of pivperty previonaly attached by him, to await jndgment aad
eomontion, nor will it exonerate him from negleoting to dflJiver it np to
be tdcen nnder ezeontion, after demand made for it within thirty days
after final jndgment TUfc^ v. AniO, 704.
See AsBioinaHT ov ComEAor; Ck>-t!UiA]ror, 11; QAunsBMns.
AUDITA QUSBELA.
Avuba Qdsula is a Jubioul Wbi> dirooted to tim ooort having the
reeordy for the pnrpoee of eetung aside a jodgmont or egmoution, and
most be between tiie parties to the fonner pmneeiting sooght to be a^
tacked. Cnaaeon.T. Peek, 829.
784 Inbxx.
AWABD&
L AwiBD vov 0 WBmm> MAT B» Good wnjtm g Ibt? oltm Thu to ml
«liiKlMrttfHdo«iiin»lT«taohtit]«itisTQid. PMtMekv. Pf9U$,71B.
% Wbbb Pabs or Awakd n Good aito Fabt n V oid» tiM wliolo will W
IwladiToid, if th« Toid ptrt and the good part an to eomiMted
Jartloa n(g|M no* U done by pormitting the lattar to bsvo flObot^ Id.
BAILMSNT&
L IvAPAWVi8l4XCT«BiPuiN»iouarw0rBaooTiEmffnDi]>Bvior«liiflk
itatoodaaneori^y, witiumt ahowiBg that tho km was in no wIm attri^
stibli to any want olaaoaawyoan and diUgnaoanpiMiliii part. Ofc^Jr
& Hmm ov PknoKAL PMrnvr oav wov »t a Sam tfaatacC Hw|Jb t» i^
8aa NnonABUi IwenfcUMMn% 4-€L
BANKS Ain> BAKKINO.
L flAfUMi BOK fAT UliBTiW TO !»▼»» A&L MOMWa D^WMWI wilfc^
iaUablataanaotion ol aaaampaitnpon&ilnvaaotodo. Jfdbin t, AmU-
$idhm Jbr Smringt, 740.
& BoK n vov LiABU voe HioiiOBir<s or a Novakt anployad bgr il ta
fiolaat a pnulaaoij note. Jfffdi ▼. PUmMmf Bmk^ 021.
IL Oainli LnMmmHKT ov NaoonABUi pAm beloigiBg to tha baA i»
jprtaia ySioit aridanoa of a legal tnnaf er. Iftvrrar ▼• CKkmam^ 761b
8aa OoBTCBAnom, 19, 22; PLBAnnro A]n> Piucncn, tb
BEYOND 8BAS.
Saa ScATOTB of LiiinATi0m» (L
BONA FIDB PUBCHASEB&
SonOimrioBPinKBAn Fbicb ov Lahii, Tnui to wmoB FAii%ii^alid
in Mia lunda of ftono JUk pnrnhaaura, but thay can raaovar aaly tha
awnniit thay paid far tha nota from the maker. PtU^Y. Hmmmm^W^
Saa FmAUDUUDT OoirnBTAMOi8» i.
BONDS.
Saa Bottomkt; PLBAHnro and Fiuonaii 7» S; Sbau
BOOK OF ENTBY.
See BviDBNOB, 11, l£
BOTTOMBY.
L Vaud BonoMET Bohdb mat n Ezbodtsd bt trb Owhbe of a ^mmk at
tha home port^ if the money obtained theraon k giren on maritfana
riika, and at the haatfd of the lender, althongli not applied to tiia poiw
poaea of the ship or of the voyage. Qrtdeif ▼. Watfrhtmrn^ 730.
% BaomD GoNsiDXBATioN OF A BoTTOMBT BoND may be inquired into^ an**
oontradioted by the oreditora of the owner of the xnainl Id,
Index. 785
boundaries.
See DEBD6, 1» 2, 8
GASHIS&.
See Sasks Aim Bankino, 3; CaapctRMTtOKB, 22,
CEBTIORABL
GlBfiOBABi amro a Substitdtb vob Weit cm Bbbob in tlioM oeees in
whidh a writ ol floor does not lie, iegov^nied by the Mine rate. There-
tee no point oen be miaed, on oertionui in a voed omo, wiiioh ie not i^
pwnt earotedTely in the prooeedinge. 0am ^ PkUmidflda §le. B. B.
CHALLENGB.
See Just and Jubobs, l-S| Qw
OO-HEDL
See Oo-mrANCT, 8, 6» 6^ 7.
OOLOB OF TEILB.
See AiyvKsn Pobshbiov.
COMMON CABBIEBa
fMfirr ovCtavuLor Bcdbtb nrwnur Mbbohawt ahd hbi Ouuam»the
tete being to some extent the foimer'e agent BImptm r. Bmd, ttl.
See NaauosNGB, 4^ 6.
CX>MPABISON OF HANDWBITINa
See EvmiNOB, 6» 7> 8.
CONFESSIONS.
See Etidbngb, 18.
CONFLICT OF LAWS.
1. Imk Loot OoanAOTiTB Dbtxbminis as to Vauuvt or ComEAOM.
Bmebur v. WaU^ 671.
% Ho Stais IS Bound TO Bacxrainzn Ain) Eniobcs CoHTRAon Li JUBUNTB to
its own intereste or those of its subjeots, alihoogh valid hy the law of the
plaoe where made. Id,
8b SzATun OF LousnAMA nr Dkboqatior of thb Bulbs of Bvidbnob as
established elsewhere, will nevertheless, aa to oontraots entered into in
another state, be obeyed and executed in any action brought to enforce
anoh oontraots in this state. Id,
4L Mabbiaof Vaud bt thb Law of ths Placb whbbb Cbuubatbd is valid
everywhere, and if invalid there is invalid everywhere; bat to the latter
part of this rale there are exceptioDS, as in certain cases where nuurriagee
between citizens of one country, while in another, may be celebrated ao-
oordxng to the laws of their own country. PhiXUpt v. Ortffg, 168,
8. Pbnal Statutes of Onb State abb not in Fobcb beyond the limita el
the state which enacted them. St^ffolk Beads v. Kidder^ 854.
Am. Dmo, Vol. XXXVI— M
786 Iin)xx.
ti Ocuramion abb Comskrubd nr Aoooboaboi woeh thb Lbz Locb. list lh»
remedy theceoo la govamed hy the lex fori. Id,
7. Statotb OFMAflgAiCiiUiiBTHi, providing tiistin aeoitoaaiMorioiiieoptmBi,
reoofery most be limited to the origiiMd demand, lees three timee the
•moant of the nsiirioiie reienre, applies to the remedy only, and has no
ioKOB in y ennoat. Id,
t. hkw or TUB Plaob whbrb a Cohtbact u to bb Pbbvobxbd goveme in
determining the rights of the parties to a contraet entered into in one
eoontry to be performed in another. Barrimm v. MwanUt ML
H 1ml Fobi Qotbbbb xv Dbsbbmxrxbo thb Modb of l^tiAL, indnding the
farm ol pleading the quality and dsgree of evidsnos^ and tiie mode ol
redress. Id,
CX)KSIDS&ATION.
See ABBuma^ 1; Boka ¥nm PuMBAflBBs; Nbqobabui Ibubumbbti^ U;
PubudLabbOi 0.
OOKSTITUTIOKAL LAW.
L ftlAT0T»«HOULP BB MABrWWLT UBOOBgriTUTAOBAL tO WBirsnt tiie OOBrtlB
denlaring it Toid. (% qf LomiitiOe ▼. ByaU, 094; Ltme ▼. Dormum,
t. LlOlBLATDBB OAH BOT ttmmuiuum JUDICIAL POWBBB. Lane V. i>0rMaa,
54S.
% Stboial Aot PBOTiDnro iob Salb ov DBOBinNT's Labd^ withont notiee to
the heii% and for the application of the proceeds to the daims of the ad-
ministrator and another peiaon against the estate^ for moneys advanced
and liabilitiee incorred by them on ite acooont^ and requiring the adminie-
trator to make deeda to the pnrchaaers of the land, and to give bond to
the heirs for the application of the proceeds as provided by the act, is
nnoonstitational, becaose it is an exercise of judicial power, and alao be-
oaose the heirs are thereby disseised of their freehold, not by the judg-
ment of their peers, nor by the law of the land. Id,
i» Chabtmi AuTHOBiziNa MAJOBEnr of Lot Owbbbs oh a Squabb to re-
quire the grading and improvement of streets bounding their square, at
the expense of lot owners on such square, by petition to the city coun-
oil, provided the council unanimously direct such improvement to be
made, is constitutional. OUjf qf LowMUe v. HyaU, 594b
(k Lboislatubb mat Bboulatb tsb Modb amd Mannbb of Bsjomra
Pbopbbtt and regulate callings, where the public interests ars affected,
by general laws operating alike on all citiaens. Meteor etc qf MobUe v.
T^UUe, 441.
IL Pbnksylvakia Act Authobizino Afpbopriation of Avoibbb's Lanb fob
Lateral Railboad to connect a private coal mine with a public river or
other highway is oonstitntional, and the act does not require the peti-
tioner to own the land at the point of junction. HairveyY, Thofmas^ 14L
7. Aot of 1839, fob Belibf of Subbtibs on Poob Dbbtobs' Bonu!^ is ooa-
stitutionaL Ortental Bank v. Freezey 701.
See OoBPOBATiONS, 13, 14; Eminkmt Dokaik; SzAnma.
OONTINUANCEL
I. Affeabanci of Dsfendamt, under Protest, at a time to which an adl
joumment of a cause had been improperly had, can not have the eflbct el
Index. 7^7
MTMag prooeas which had failed from the non*appearaiioe of the plaint-
iff at the time named in the writ. Marthi ▼. Falet, 093.
JL OcnrmnTAiroi ov a Tbxal hy a jnetioeof the peaoe, made in the abaenoe ol
the partiee, Ib not binding. Sieveiu ▼. Beach, 389.
CJONTRACrrS.
SuBSOBirnoN of Monkt to Indcob Railway C!ompaxt to Locate Bbioob
at a partionlar point constitates a valid contract Cumberland VaSkff B,
B, Co. ▼. Baab, 132.
Sea OoKTUOT of Laws, 1, 2, 0-8; Illegal Contracts; QcAmuM Mieur;
Rbboibbion of Gontraots.
CONTBIBUnOK.
Jconp JunnovT Dkbsor Patiko wholb Dm under an eacpwee agraeaicnl
with the ereditor that aaoh payment is not to be deemed a satisfaotlonol
the JodgBMnt^ bat that aach debtor ahall have the right to enforce the
•ame againat hia co-debton, ia entitled to be aubrogiated to the creditor's
rii^ts for the porpoee of obtaining contribntion from each oo-debtQn»
and where snoh debtor has procored execution to be iasoed upon the Jodg-
mmitf which the creditor moves to quash, the coort will, npcn proof ol
Iba laolst ovennile soeh motion. Mcrria v. BvtmB^ 691.
/ OONTRIBUTOBY NEQUOSNGB.
Sea Nmliobvcr, 1-0.
OOPAROENIIBS.
Sea Ck>-TBRAMor, 1, 12.
OORPO&ATIONB.
I. BoROoaa of Baboht u a Corporation, nnder the laws ol Sootiaad,
oonstitnted by sovereign anthority, composed of the inhabitants of a
partionlar district, oiganiaed onder royal charter, maUng a grant of the
lands indnded therein to a subject, and annezing to it the right to eocer-
eise within the territory a particular authority ot jurisdiction. Diih$ t^
BkhmoMd V. MiSM9 Ba^n^ 013.
% Such CoRPORATioir mat RioBrvB Oirrs hitxr YiYoa or Causa MoBti%
through the intervention of trustees. Id,
% Corporation is SvfnciXHTLT Oroanubd to Bikd Subsqbxptior to the
csf^tal stock, when the parties mentioned in the charter have, in pursu-
ance of its terms, by written articles of association, organized themselvea,
and opened books of subscription. Miiford etc. Co, v. BruAt 78.
i. SUBBOBXPTIOiV IS VOT VoiD FROM liflSTAKX IIT CORPORATE NaMB, and the
contract will operate in favor of those for whose benefit it was intendsd.
fd.
A. Amsndmbnt of Act of iNcoBPORATioir will not Exohsbaxi PRarioini
SuBSOBiBEBS from their subscription, when the change produced by the
amendatory act is but trifling. Id.
OL LaoiSLATURB MAT Waivb Forfbiturb OF CORPORATE RiOHTB, and an
aot extending the time of the commencement of certain work amonnta to
a waiver of the forfeiture incurred by the corporation's failing to com*
788 Index.
nunoe the work within the time preeerihed hy the act of inoorporatioai
•ad the liability of stodkholden is sot affsoted by the eztenaum. Id.
T* Oba]it ov PanrxLiaB to Cobfoba,tion ib not Ezolitsivx, imleM expteady
•aid to be to by the charter; conaeqneiitly the giant of a privilege to one
eompany does not prevent the legiilatare from granting a like privily
to another, though the bnaineaa of the former is injured or even mined
thereby. radboAoe Canal Co, y. TvdsaJyot R. R. Co.^ 374^
ti Obdimahci of Gmr GonNoxL Aluoxd to hayx bskv '*Dui.t Madi^"
where meh allegation is not denied, will be preeomed to have been
paned by a nnanimons vote as required by the oily dharter. OUifqf Lottie
eiOe V. HyaU, GM.
9L Obdixangb ov Citt Gouvoil mat bk Impbaghkd by showing that it wm
not pawed in the manner required by the oharter, and the oocporatioB
books are not conclusive on that point. IdL
Ml Oo8t ov G&adiko Strut should bb DmnaBursD among the lot ownen
on a square, by imposing upon each his aliquot portion of the whole oost,
estimated according to the extent of his lot on the street Id,
IL HuHioir AL GouiroiL abb Fdtal Jmnxu ov UthiIXT of street improvemsnti
which they are authoriaed to make, and the remedy of a lot owner, if
any, is by action, and not by resisting the order for the improvement*
IdL
VL OBDnrABOB ov a MmnaiFAL CSobpobatiob n vor Void as in restnint cf
teade, if it but relate to the regulatlan <rf the trade, and the regulaiioB
Is for the good of the inhabitants of the city, or for the advantage of the
trade and improvement of the commodity sold, ifcqior ete. qfMobiU v.
Hi Idbm.— Trb Lbgislatubb scat Oojurrri'UTXowALLT 0>bvbb upob a Mv-
BiciPAL CoBPOBATXOir the power of regulating the assise of bread. IdL
IL LaOVLATVBB MAT GOZVTEB UTON A MUBIOIFAL COBPOBATIOir the poWCT
to pass any by-law or ordinance iriiich is not unreasonable or opposed ta
the general law <rf the state. Id.
1& PowBB TO Pass a Bt-Law Oakrtbb as ah laoiDBWT the power toenforoe
iti observance by some reasonable penalty; what is a ressooahle penslty
Is to be determined by a consideration of the offanse prohibited. IdL
10. PaouBXABT Pbnautt bob thb Vzolatioh ov a MuNnnFAi. Obdibaboi
must be for a sum certain; it will not remove the objection that the ordi-
nance fixes a sum beyond which the fine can not extend. IdL
17. Whbbb thb Tranbrbb ov Stook is Rbquibbd, by ordinance of the cor-
poration, to be entered upon a transfer book, the trsnsferees of the stock
wiU not become stockholders prior to the entiy on the transfer book.
£toe V. ^orrif , 400.
lA. HmndPAL Gobpobatioit n hot Liablb fob Gbaixibo Stbsbt whieh is
not level, under a charter authorizing it to improve the streets, altlioa|^
the complainant's property is injured thereby, there being no allegation
of malice or wanton diaiegard of private right. Orem v. Bonmgh V
Reading, 127.
19l Ihvobmation Givbet to Boabd of I>ZBBoroBS 0 V Bahx, at a regular meet-
ing, by one of their number, of the dissolution of a finn whose paper is
subsequently offiared for discount, is notice to the bank notwithstuding
the absence at such meeting of the committee whose business it was ts
aol on such matters. Bank of PitUburgh v. 9F3UteVa<2» 186
Index. 789
90l CtoBTOBATiON'toBiaHT 10 BvjOTPBOPiBnrLAan only m long «s the oor>
pontion oziite* JPbot ▼• Rcfohf 48*
SI. Upoh tbb DnaoLmoH ov ▲ Cobpokation bt Lapu ov Tm, at oommon
law its real estate rerertod to its gnmtora and their heira, its personal
properly eeeheated to the state, and its debts and oredits beosmeextinoti
Id.
S8. FBomssoBT Hon, Exbootxd in Favos of a Bank's Oabhub, in trast
for the nee and benefit of the bank, is extingaished by the termination
of the bsnk's oorporato existence by lapse of time. Id.
SSl Sxogxholdkb or a Corporation, thoooh Inookpktbnt as a Witnbbb in
iti own behalf, may be oalled and examined by the opposite party in a
soit against the corporation. Hart v. New Orlean§ €tc R, R, (%»., 680.
SA. Stookholdbr who is Oallbd and Examinxd as a witness on behalf of the
plaintiff in a soit against the corporation, may be cross-examined and
testify in favor as well as against his intereste npon the matters in ref •
erenoe to which he is called. Id.
flL OoRPORATioN n LaABUi VOR Daxaoib for consequential injniy arising
from an act done in the exennse of ite ordinary powers. Rhodu v. Oily
1^ OleveUmd, 82.
98. GxNRRAL Issvx IN AN AoTiON Bbouobt BT A CORPORATION admite the
capacity of the plaintiff to sue. Phenia Bcuik v. CuiiU, 492.
S7. Gbnxral Issub to an AcnoN bt a Cobpobation does not admit the
capacity of the corporation to make the contract npon which it snes; and
tlieref ore unless the charter of the corporation is one of which the conrt
will take judicial notice, it must be exhibited to show the powers of the
corporation. Id.
8sa OomfRunoNAif Law, 4; Bicnbnt Domain, 1-6, 9; Btidbncb, 16; Quo
Wabbanto.
COSTS.
Oo0n» WHBBB TBBBB IB A PZAA Puis Dabbbin Continvangb, which seto
forth a true and Talid defense, are to be adjudged to plaintiff to the time
of plea pleaded. HiU ▼. Lacey, 440.
OO-TKNANOY.
1* Bn«B¥ bt onb Co-tbnant OB CoPABOKNBR inurss to the benefit of aU,
and osn not become adyerse without some unequivocal act amounting to
an actual disseisin or ouster of the other co-tenante. Hart v. Oreyg, 166.
t. Pbbobption op Rbnts and Provitb bt onb Co-tbnant, and erecting fences
and buildings adapted for the cultivation of the oommon land, do not
amount to a dissftisin of the other co-tenaato: so, it seems, even though
the receipt of the rente and profite is accompanied by a claim of title to
the whole land. Id.
S. Taking out Patxnt to Land bt onb Co-hbib expressly in trust for him-
self and the others is evidence of an intention to hold for alL Id.
4. PO08B88ION BT TBNANT IN OOKMON IS NOT AdVBBSB TO Co-TXNANTS, SO aS
to found a title by the stetuto of limitetions, unless accompanied by oir*
cumstancea unequivocally showing an adverse intent, such as a refusal,
upon demand, to pay over the co-tenant's share of the rent. PkilUp9 t,
Oregg, 168
790 Index.
ft. Hxis CA9 NOT Ocrsr his Oo^BcmB, to as to gain title to himself. In had
deeoendiog to them, npoQ which he faes entered, without some elesr,
positive, end aneqni vocal act amounting to an open denial of their xighL
Wotmm V. Ortn^ 178.
•• PnoBPTiov OF RiMTS AiTD PBOfxn BT Okb Go-heib in posssBsion of land
of the ancestor is not soffident to raise % presumption of an onstor of the
other heirs. Id,
7. Admissioks as to Outstahbimo Titli bt onx Ck>-SKiR in posnession of
land held adversely hy the anosstor at his death do notafieot the ri^ts of
the other heixs, where there is no yielding of possession, or attonmisitt to^
or oommnnioation wiUi, the holder of snoh outstanding title. /dL
8. TniAjn ix oamiov oah hot MAiifTAZH Tboykb o& Tejebpass against his
oo-tsnant in reference to personal property, unless there has beei^ a de-
■tmotioii of the cha;ttel. Wdtk v. OZori^ 888.
8l Razji of an Bbubs Chatsbl, Hbld in oomhon hy one of two co-teuaAi^
without the oonssnt of the otiier, is not equivalsnt to % destniotion. UL
18l TnrAjn nr oommov u hot DiransD of aht Bjokt \tj % als \tf his
oo-tenant, hat heoomes % teoaat in oommon with the purdhaasr. M
11. AnAomiiiiT OF a GsATnL, Hbld nr ookmov, on % proosss agMbsl a
oo-tenant| Is not suoh a dsstruothm of the piopetiy as to give the othsr
teoaat % right to an aotion of trespass or trover agunst the attanWug
evsditor or the sherilt Id.
n. Tbhantb nr oommon Taking bt DBMBmr are regsrded as oopareeaers
vnder the PennsylvsoiA act of 1794. PcrtferHm v. Jawniaj, 164.
IS. Joint TttANGT has NO Bbn»CTNOB IN Ohio, as diatfagnished from teaaapy
in eommon. W3Lm v. JUAer, 81.
14. Ck>-iBNANT,iNi!RBBxaLnBiVBPoananovoFLAN]^lsliahlefortfaereato#
so much of the premises aa was capable of produoiag rent at the tfane he
took posseesion, but not for what was rendsrsd capaUe l^ his labor.
Hameock v. Daft 888.
Ub Oo-TBNANTisLiABLB FOB WAflVBoommitted by him on the ooBUBoa prop-
erty. Id.
18L OO'TBNANT IS NOT EWTITLBD TO OaMFBNHATION f OT impgOVSOMati Made by
bim oa the oonunoa property. Id.
See Advbbsb PossnsiON, 8; JuDaMBNTS, 4; Pabchion.
OOUNT£BF£IT BILU3.
h Pabtt Patdto Dbbt with 0>untibfbit BiLLis liable immediately, upoa
an implied prooiise or warranty that it was genume, whether he knew ll
to be counterfeit or not, and a return of the bill before bringing the ac-
tion is unnecessary. WcUton v. OreBap, 672.
% MoNBT Paid fob OotTNTXBFBrr Bnx mat bb Bboovbbbd in an action for
money had and received, and the biU being worthleae^ a retnm of ft need
not be tendered, it seems, before suing, /d.
8. Tbbtimont that Bill is GouKTSRPBrr, fbom Mbbohants who liave been in
the liabit of receiving and paying away genuine bills on the same bank,
is competent. Id.
COURTS.
See JU8TI0B9 OF TBB PBAOI.
Index. 791
00VENA19T&
1. CtomiAirr aqaihbt IvouHBRAirGis is a Bbal CavmxMm nuuung with tlM
land. Foote ▼. Burnet, 00.
% MxABUBX ov Damages tor Bileach of CovsNAirr against iKouxBaANcn
18 the amount paid to remore the incambrancee, with interest, provided
the same does not exceed the purchase money and interest; but in no case
can the damages exceed the latter sum. Id.
S. Imfobsibilitt of a Grantxx's Obtainhto PoaaBSsioN of the land conTeyed»
will support an action for breach of the covenant of warranty, withont
proving a technical eviction. Park v. Bates, 347.
lb ICxAsnsB OF Daxaois in an Action fob Breach of vbm Covxnaut ov
Warrantt is the value of the land at the time of eviotioii» without rs*
gud to the oonsidsratton expressed in the deed. Id,
CREDITOBS' BILL3.
L GSBBDnoRB 1CU8T BszABUBH THEIR DiBT AT IiAW IwCors thsj osn olalm
equitable relief. Broum v. Long, 43.
2;. Judgment Creditobs must Szbaubt their Legal Bemeddbs hy exisoa-
tlon before they can obtain the interposition of equity, unless their debtor
is insdlvflat, or lias no visible property. Id,
CRIMINAL LAW.
L CEDiiirAi. JuBiBDicnoN OF Courts of Justioe lor trial of causes upon in-
dictment or information, is derived from the general law providing for
the organization of oourts of justice, and not from partienlar statntsa
declaring what shall constitute public ofienses, and prsseribing a punish*
ment therefor. State v. Wilbor, 246.
% Ambndatort Statute Providing for the Dibtbibution of a Finb im«
posed as a penalty for a publio offianse, which provides only for the dis-
tribution of such penalty in a manner different from that directed in the
original act, does not affect the offense defined by such aot^ nor work a
repeal of the penalty. Id.
t. Increased Pen altt Imposed bt a Statute fob a Second Conviotion of
the offense described therein, is not regsrded as an increased penalty im-
posed for the same offenae, but as a new and distinct penally provided
for another and a separate offense. Id.
4, Indictment which Concludes *< against the Vobm of the Statute,"
wiU support a conviction, although the offense charged is the creation of
several statutes. Id,
L Words " Warrant and Order" may be Stated Oonjuncwvelt in in-
dictment for forgery without vitiating it, although in the statute under
which the indictment is framed the disjunctive expression ''warrant or
order" is employed. State v. Jones, 257.
6. No Material Variance Exists between an Indictment for Forgery
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. Id.
7* Indiciment Need not Set forth 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 wsp nommitted, with intent to defraud a
792 Index.
puticaUr bank, deMsribing it by its ootpoimte luune, and it i^pem that
there is aaoh a oorporation inoorporated hy a pablio statate, the oourt
will take jadicial notioe of such act of inoorporation, and the indictment
11 saffident without any farther designation of the bank by its name. Id,
S» Atxrmxmt that ax Ihbibuiuemt was Fobomd, with intent to defiaad an
inoorporated bank, ia not rendered defective by the fact that the instru-
ment, as Bet oat In words and figoree in the indictment, appears to be a
check drawn upon the " cashier** of each bank. Id.
9l IzTDicnmrr CHABOXNa that a Wbittxn IvantumifT poiported to be the
warrant and cider of ''Tristram Tapper," and then settiiig fortii tha
instrament in words and figares in fall, avers that it was forged with
intent to defraad " Tristram Tapper,'* ia not objectionable on the groand
ot variance, merely becaose the copy of the instrament shows that it was
signed by "T. Tapper.** Id,
10. GoKvicnov lOB Fobob&t ik Soitth Gabouna hat vr Subtautxd, either
ander the act of 1738, or the act of 1801, or at the common law. Id.
11. IVDBonnaffT vcn Obxainivo Goods bt Faub Pbstxmsbs, What Necb-
BABT nr. — ^It is an indispensable requisite of an indictment for obtaining
goods by false pretenses that there be an abedate negative of the truth
of the pretenses employed. 7)fler v. SUUCf 298.
IS. Whbbb Qoods abb Obtaibbd bt Mbaits of a Coubtbbrit LRrTBB, an
averment in the indictment that the party whose name is signed to the
letter "never did write or send, or caoae to be written or sent any such
letter,'* is a disttnct and saffident negative of the truth of the pretenses.
Id.
15. lNDiOT]airTVOBOBTAiNiiroGooi)6BTFAL8BPBBEiH8B8canbesastained,
thoagh the party who purported to be the drawer of the order had no
interest in the goods obtained. Id,
14. Pbbson Indictbd bob Cbiminal Owwknbe has Biaar to bb Pbbbbnt in
court pending his trial, that he may diseoss questions of law and &ct,
and point out and argue objections to the action of the jury, or to other
proceedings in the cause. This right is goaranteed to him by sec 10^
art. 1, of the constitution of Alabama. State v. Hughes, 411.
Ifi. AocusBD has Right to bb Pbbsbzit whbn Vbbdiot is Ebtubkbd, that
he may have an opportunity to poll the jury if he so desires. Id.
16. Nbw Ikdicthbnt Nbbd not bb PBBvmtBED against a prisoner where a
former judgment of conviction was reversed and the cause remanded for
a new trial, unless the indictment was adjudged insaffident. Id.
17. Rbcbivimo Vbbdiot nr Absbbob ov Pbisonbb does not entitle him to a
discharge. Id.
18. ImroBMATiON FOB A Statutobt Ovfbnsb is in general suffidently definite
and certain, if in the description of the offsnae it follow the words of
the statute. Whiting v. State, 490.
10. Ideh.— Ik an Information fob thb Salb of SnaiTirous Lequobs, it is
not necessary to state the amount, kind, or value of the liquor sold,
unless the jurisdiotion, or the nature or degree of the punishment, de-
pends upon a consideration of these matters. Id.
90. CiBcuMSTANTiALEviDBNaB Nbbd NOT bb so 0>iraLi7siVB in a criminal case
as to ezdude every possibility of the defendant's innocence, in order to
justify hiB conviction. If the jury, from the evidence, are satisfied of
the defendant's guilt beyond any reasonable doubt, thcjy may convict
ISDEJi 793
him, althongfa there is no eiridenoe pxoving or tending to prove it impoe-
■ible for another perK>n to haTe committed the crime. IkuUeif ▼. Staie^
657.
th DBVlNDAHys FaZLUBB TO DlSPBOVB SOMS OV TBS OXBOVMBSAVOn prOTCd
Against him in a criminal case shoold hare no weight with the jnzy, iS^
from all the circamstanoes proved, they are not latinfied of his guilt be-
yond a reasonable donbt. Id.
•22. Gbanos of ymsvm in CRmnrAL Gasb is DnoBanoNAsr, and a refnsal
thereof can not be assigned as enor. Id.
2S. BvusAL ov CHAHas OF YwKxm or Crdonal Can is not assignahls as
error. Sumner y. Biaie, 661.
24. SvxBT Material dBoumxAirGB must sb Pbotxd bmtgkd a Baxioval
Doubt to justify a conviction in a criminal case, and every ciroomstaaoa
not so proved shoald be discarded in making np the verdict. Id,
28. BVXDBNGB NbBD VOT BB 80 OONOLUSIVB AS TO BXOLUDB BVBBT POSIIUIIUTI
that the crime might have been committed by another, to Jnstify a oon-
viotion in a criminal case. Id,
20W GiBOUlIBTAHTIAL BVXDBMGB SBODLD BB 80 SlBOHO SS tO tend tO OOnviHOe
the jory of the defendant's goilt, and to ezdade every supposition incon-
sistent therewith, to warrant a conviction in a criminal case. Id,
27* LrarBUonoN or Gafital Casb that Stboho Motivb must bb Pbovbd
for the commission of the murder by the defendant, to justify his con-
viction, if the evidence is droumstantial, and does not show his goilt
with absolute certainty, is properly refused. Id,
See BnDBHOB, 16, 17; STAnrsBB, 6, 7; Witubbbbb, 1.
DAMAGES.
8se OoBFOBATiQXB, 25; OovxHAHTB, 2, 4; Bminxiit Dqhadi, II, 12; HlQB-
WATB, 5; Ldbl; Quabtum Mbbuit, 2; Slavdbb, 8; SxAXima. 10^ !!•
DBCBEE&
See Equitt, 1.
DEDICATION.
DiDiaATioEr, Wbat bot.— Whkrb a Tbact Fbomtdvo on a Bivbb, and ad*
Joining a city wherein it is afterwards incorporated, is divided by its
owner, on a plan thereof, into city lots, streets being laid o£f thereon in
continuation of those of the city, and lots are sold with reference to
such plan, if on the plan between the river and nearest parallel street
a vacant strip is left, which is not divided into lots, but on which no
word IB written indicative of an intent to dedicate to the public, no pre-
sumption of an intention to dedicate such strip to the uses of commerce
or otherwise to the pubUo, will be presumed. It will be different, if on
the vacant strip such a word as " quay," or other word indicative of soch
intent, is written. To the same point. Garland, J. MunieipalUif No, 9
V. OoUan Pr€$i, 524.
DEEDS.
I* Whbbb thb Dbsgbiftiobb of a Convbtahob OoNFUor, that which has
the greater certainty must prevaiL Doe ess dtm, FhlUipt^ Hein v.
i'lofier, 448.
794 Index.
S. lDEM.~QiTAiiTiTr GxvsB WAT TO BoinniABZM in oMe of ooofiiot Id.
S. Idsk.— A Pabtioolab Dnasxpnov will Cobtbol a gsnonl datoriptfiti
of the aame tnust /d.
4. BaoiTAi. ov Qini Dno nr Ahotrbk bindi the pertfee and those daiming
luider them by eetoppeL Tliiu if m oonveyanoe pnxport to be of lend
oonTcyed by % prior deed to which referenoe is made, the grantees cev
not eontend that more paned than was indaded in the recited deed. /d.
Bw Pabtt to a Dbsd n iror Pibmitted to Pbovb that he has no title to the
land conveyed, by viztae thereof, where the deed oonteine oovwiants or
radtalB inooniirtent with the proof offered. Tkompmm v. nomp^om^ 76L
•• Gbaktbbmat Fobtzvt hib TnxB byaenbaeqiiflflitdeed from hiegiantor to
the premiaee originally oonveyed^ and is not estopped from claiming tli«k
the title passed by the prior oonveysnce, if by so doing he do not prqno
dice the righti of othen. Id,
7. Dbbd oak hot bb Dbtbatbd ioe Qbb Pubvobb, and reliad upon for s»>
other. Id,
8SS AlABBATIOir OF IHRBUlEBBn, 4; OOTXBABTS; BVIDBBUB, 18; Fbauini*
lbht Oovtbtabcbb; ImaxiTT, 1-4; Makbibi> WoiODr» 1, 2; lfoa»>
AAOBii 0-8^ 10^ 12; HonoB, 6; PABXixioy; Pbivibb.
DBF06ITI0NS.
See PuuBiHo aho P&Aonaii^ 14
DBPUTIB&
flee Bsaoonoirai 14; SKBBOiik
DEVISES.
See Wnxa
DIVIDED NOTES.
See Lost Kotbb, 8w
DIVOBCK
See Mabbiaob aitd Dxvorob^ 2-4.
DOMICILE.
Bmamim n Gbavobd where a man goes away with a determinatfon of
tskiog np a pennanent residenoe in a partionlsr plaoe and does so tske
np his abode. Besidenoe may be abandoned without evidence that an<-
oiher has been seoored; bat it is otherwise as to the phuse of legsl setfele>
nwnt. Fkmpa y. KingfiM, 7eO.
DONATIO CAUSA MOBTB.
See Aubnb, 3.
EASEMENTa
See Wats.
EJECTMENT.
1. Pubchasbr ukdkb Verbal Contract being nr Possession by hia agent»
the vendor or his grantee can not maintain ejectment withont proof e#
Index. 795
a diBnand tad refanl by the puroliMeror agent or of a holding adTonely
befoPB rait bronght or demise laid« P€Ut% t. AlUafmy fSl^
& AiyvsBn Holdoto ob Dxicahd ahd Eifusal are not to be implied
from a def enee to an ejectment bronght by the vendor againet a tenant
of the pnrohaier in poeeeesion under a verbal oontreot of parohaie. /d.
t. BBrua^L TO Pibmxt DiaooimNUAvaB ab to Tbnaitt in poneeiion, where
hiB landlord has been admitted to defend in an action of ^eotment, for
the porpoee ti making him a witness against his landlord, is not error,
because a diaoontinnaace as to the tenant is a discontinnanoe of the
whole action, /d.
4 VxBDzoTAiroJinwMiHTiNBjionaHTioBPtJknraiiywBORAsCoinrMTSD
the land to another after action bronght, and who^ upon that &ct being
shown, recovers only his damages and costs, will not aileot the title, and
will not, in ccnjnnctlon with a prior recovery in ejectment by the same
plaintiff against the sMne defendant, conchide the hitter in a nbseqnent
ejectment bron^t agafaist him by the plalntiiFs gnmtee. BknAman v.
Qnn% 171.
ib Sab ov Two VauxBOfB nr Bjbotmbbt n ScaTorofBT BnropnL which
aflbots only parties and privies. Id.
See gvmmu% 14; Jusaiom, 1; PAanruui; PBa-nmioSi t.
BLBOnOK.
flee BQvnnr, 8; WAans, 1-S.
milKENT DOMAIN.
L PBomvr OF Ookpobatiov is SnnjncT to Biobt of Emraar DoManr aa
well aa the property of private persons. TVdboAoe (kmal Oo. v. TwMkto%
M. R. Oo„ 874
% Act Stthioontlt Pbovzdib fob GoicpxNBAnoN, whbn.— An act ennpow-
ering a company to ezeroise the ri^^t of eminent domain, soffioientiy
providee for compensation when it refers to a general Uw as the Uw of
the company; the general Uw prescribing the manner in wliich property
shall be so taken. Id,
lb OOBFOBATION BmPOWXRBD TO BuiLD BaILBOAD BBTWBIK GiBXAXN PoIXTS
has a right to bnild a bridge over the canal of a company previously
incorporated, aa an exerdae of the right of eminent domain. Id.
4. CoNDSXNATioN Nbxd HOT Pbbctbdx E3CX0UTIOH OF TEX WoBX, and a ccr^
poration is not acting prematurely where it exercises a right of way
before liaving the damages assessed; th^ is no absolute obligation on
the corporation to iostitate process for asnemring the damages, as in case
of its defaalt the owner may do so. Id,
Ik Location of Railboad bt a Jubt instead of by the company nnder aa
act authorixing the company to locate the road, each location to be ap»
proved by the court of quarter sessioDB 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 Case of Philadelphia etc, R, R, Co,, 202.
i. EzoxFTiON Depekdino on Litkual Intkbfretation of Statuts authoria-
ing the location of a railroad is not to bo favored. Id,
7. OBJSonoN THAT JiTRORS WEBB NOT SwoBN according to the general road
law, under a special statute anthoriaing a view and report nf the location
fc..
796 Index.
of a raflnwd l>7 a Jary of ax, is atuLTailing where the stetate
no oath. I<L
8w "TAKnro" ov Pbitati Pbopkrtt iob Pubuo U8b» within the meaning of
the oonttitotional prohibition, refers to a taking of it altogether, and not
to a mere coosequential injnzy. Id.
9l Monofolbb asm vot Pkobibitbd bt thi CoaariTUTiOM of Pkhkbtl-
VAVIA, and the legishitnie may, theroforey grant ezdnsiTe privileges to
amilroad. Id,
IOl Takdto Pbitatb PnoPSBTT VOB Pubuo Usb, Wbat ib.— The legislatue
oen not aathorise a pabUc nse, the natural resolt of whose operation will
be to deprive the owner of adjoiDing properly of its bene6eial nse, with-
out allowing oompensation to the party injured. It can not anthoriae a
oenal whose existence will caose the flooding of adjoining land, witfaoat
sUowing compensation. Hooter v. Neuf Haven etc Co., 477.
11. If tbb LaaiBLaTVBB Fail to Pbovidb a Bbmbdt for an injory occasiaoed
by a pnUio nse, for which injury nevertheleos the party injured is enti-
tled to recover by reason of constitutional provisions, he will be remitted
to his common kw remedy lor the recovery of the damegee sufisred. /dL
12. VxsDior upoir which no Judomxht is Extbbkd, nnsciniiing the damages
which a party will sustain by rosson of the laying out of a Uteral rail-
road across his land, under the Pennsylvania statute of 1832, will not
justify an entry and the making of the road, but the record of the pro-
esedingB is admissible in evidence to mitigate the damages, giaregf v.
Thomu, 141.
See CoBHrixuTiovAi. Law, 6; Hiohwatb, 1-1»
BQUTTABLB OONVEBSIOH.
See Equitt, 2, 8;
BQUTTY.
1. Dbcbbb nr Bquitt Ofxbatbs in Pxbsonam, and can not jmt se divest the
legal title. Proctor v. Fere6ee, 34.
t. LAin> IB CoHBiDBBXD BT Equttt AS CoMYXBTSD INTO PxBsoNAunT by a di-
rection in a wiU that it shall be sold, and from the proceeds thmof a
fund established for the payment of debts and legacies. Id.
t. PBB80NB Entitlmd TO THB Pbooebds of the sale of land, may elect to take
the land itself. Id.
4. ' Bill aoadtst two Dbfbnbants Taken fbo Confbsso aoainst Onb for want
of his appearance, will not estop the other from denying or disproving
the aUegatioDs in the bilL PtUiy v. Hanmim, 303.
Bea OBBixnoiBB' Bills; Fbaud, 2; Injunctions; Intbbplbadbb; Juinou \
Salbb; RBSOifisioN of Gontbaots.
EBBO&.
See Plbadino anb PBAonoB.
BSTATBS OF DBCEASBD PEBSONS
Bea OoaiwiTUTiOHAL Law, 3; Exboutobs and ADMiNi8TBAXoa&
Index. 797
ESTOPPEL.
Haxtib of Ebtoppxl, to hays Effbot, must bb Plbadxd, ezoept where
there has been no opportunity so to do» in which case it may be given in
eridenoe with the eame oondnaire e£Eect as if pleaded. I9aae$ v. OUurif
See DxiDB, 4-6: Bjbotmsnt, 5; Equitt, 4.
EVIDENCK
L Vdanov LAWSicusTia PBOYXDaa faota, and will not be judicially notioed.
Philip V. Gregg, 158.
% BvzDXNOB TO Pboyb Fobkzon Law moat be the beat of which the natore
of the case admita. Ordinarily, written laws of a foreign ooontzy must
be proved by duly authenticated copies, and the unwritten law by the
testimony of persons skilled therein; but this rule is not universaL 1<L
t. Tbrzmoht of Pxbsons Unlba&nkd in thb Law that prior to 1791 it was
oostomacy for protestant settlers in the Spanish oohmy of Miiwissippi to
be married by a justice of the peace, under a regulation to that efibct
adopted by the governor or superintendent, is admissible to uphold a mar-
riage ao celebrated, unless the party objecting thereto shows that better
eyidenoe is attainable. Id.
4i Fast of Bboobd, whjdui Bkmaxkdxb d Shown to havx bkbn Loer, is
admiarible in eyidenoe, with parol proof of the contents of the part lost.
Harvey t. Thamae^ 141.
IL Entbt in Familt Bkoord as to Bibth of Child is Admibhiblb ByiDENca
In an action brought by the father against a justice for unlawfully sol*
wnniinng a marriage with such child while a minor, and the testimony of
the father is admissible to prove such entry. Cankadden v. Poorman^ 146.
ti UvAiDXD GoKPABisoN OF Handb IB GxNXBALLT Lf AD1CI88IBI.1 in Pennsyl-
vania, but such evidence is admissible in corroboration of previous testi-
mony. Baker v. Hainte^ 224.
7« Wbitino Ubbd ah Standard in Cokpabison of Hands must be proved to
be genuine by evidence leaving no reasonable doubt, as by the testimoDy
of persons who saw the party write it, or by an admission of its genuine-
ness, or other evidence equally certain; and it can not be proved by the
opinions of witnesses, /d
t. SiONATUBBs Pbovbd TO BB IN A Dkfbndant's Handwbitino cau uot be
given in evidence to the juiy, to enable them to determine, by a com-
parison with a disputed signature, whether the latter is genuine or not.
lAtOe V. BeazUff, 431.
9l Bbscbiftion of a Locfus in Quo mat bb Pbovbd bt Pabol, as a matter
of reputation. Da/oie v. Fuller^ 834.
IOl Pabol Bvidbngb of thb Statkkbnts of Pbbbons competent to be wit-
nesses, when against their interest, can not be given without proof of
their death, especially when such statements are mere matters of opinion.
Id.
11. Book of Entbies Mandbstlt Ebasbd and Axocbbbd in a material point,
unless explained so as to do away with the presumptions against it ezlBt-
ing on its face, should not be admitted in evidence. Cktarehman v. SmUh^
211.
12. Gntbixs madb bt Clbbk and Cabteb, who Deuvebs Goods, from hit
I
798 Index.
iiMmofftndA immaduMy upon hii ntnm £roiii making raoli delivety, an
original entriaa. IdL
UL Died vbok Pkb801i8 GLADCiiro to vm Hnsa ci m former ownar of bud ii
not admiadUe in oTidenoa witlKmt proof that they are hein. Waimm ▼.
Oregg^ 176.
14, FftVPOMDSEAjna of Bvxduioc oh DsnHDAinr^ Pabt ia not neoaaaaiyto
orerooma a jiriflia/aeif caaa in favor of the plaintiflfa right to reeotar in
^aetmant; aqoipondaraooaof avidanoaiaaofficianl WaU t. IfftTa Hein,
ff78.
10. OnaEUUHo OBjxonov to Pboov ov Dsniii>AST's Statdixhts in ao*
awar to pfomiaa of favor by a witneaa, by aaaiating to dear him of a
ahaigaof orima, if he would atate oartain facta to the witnaaa, ia not error
where the atatamaoti, whan introdnoadt ahow on their face that they
ware not made in any ezpaotation of proonring the pronted benefit^
and that they oonld not have any tendency to proonreaneh benefit, fknl-
leg T. SiaU^ 667.
liL Pabol Btidbhoc n vor ADWMiwji to Add to oft Vast vbm HxAimroof
the terma of a written contract; and can not» therefora, be reoeived for
the pnrpoae of ahowing that a written aaaignmattt on the hade of a oerti-
fioate of ato<^ in a corporation, <rf "aU the ri^^t, title, and intereat* of
the aaiignor, waa aocompattied by a wairanly of good title. Otgood t.
17. Datb 07 A FoBOXD Chsox 18 SumocDiT EviDEHca of the place where it
WM made, if it be ahown alao that the defendant waa in that place at the
date of the check and had it in hia poaeeaaion. 8U^ ▼. JomUt 267.
15. BspuTATioir AVD PuBUO NoTOBniT Aftft ETiDftvcB of ownerahip in an
aoticn for damagaa for injnriaa caoaed by the na^igence witii iriiich an
ofludboa alleged to be owned by defendanti, waa driven. H€bH t. Noo
OHtmu HcIL R, Oo,^ 689.
6aa OoMVUOT or Lawb, 8; Couhtkbvkit Bnxa, 8; Crimihal Law, 20, 21,
24-26; Bbtopfkl; I^ud, 1; Gabnishxbiit, I, % 4; Hubbakd ato Wifs;
IvBAHITT, 6; JUBT AND JiTBOBS, 4; LiBXL; llAUOioua Pbosbodtion, 2;
Mabbiagx akd Dxvobob, 6-8; Nbguoxnob, 7; Nbqotzabu Ihstbv-
MXirT8» 21, 24, 28; Patmbzit, 2-4; Plxadino ahd Pbaoxicb, ^11, 16^
24; Public Lands, 8-6; Slandxb, 1, 2; Usaob; WmrsaaB.
EXECUTIONS.
1. fiBBBirr Lbttxno on Sbvxbal Abticlbs, Onb ov which d Ezbmpt from
execotion, ia not liable in treepaaa therefor, where the debtor tula to elect
before le^ which of them he will claim aa exempt McOee y. Ander»nt
670.
% SHXBinr Bbvusino to Allow Claim of ExxMraoN made on day of eale
and proceeding with the eale, where Beveral artidea are levied on, one of
which may be claimed aa exempt, doea not become a treepaaaer ab mUio
nnlees the debtor tendera in lien of that claimed other property which is of
eqwd value, or palpably sufficient to discharge the debt, or which is the
only property which the sheriff could have levied on if the exemption
had been claimed before levy, /d,
8. OfFIGXB RXGBIYINa AND LbVYINO EXECUTION MUST PXBVBCT IT, by the
rule of the common law, by performing every act required to be done
under or by virtue of the writ. EUAn v. FtopU, 641.
Index. 799
4. QfflOIESBUJiroLAimONBxiOUTIOVMAYBMlITBBBDBIirTXOVMoinr,
evflfli affcer the ezpiratUm of his term of offioe. Id.
A, SuBsmB ow Skiriit BBGnmro Bxdskptioh Mokxt after his tcnn has
expired, npon land previoqaly aold by him, are liable thecelbr. /dL
4. Ssouft'a Dud gah no* bi Ck>LCi4TERALLT iMPaACHBD for any imga-
larity inhiaprooeedingSy orintheprooeasonderwhiohheaoti. Xnaoah
a case a Judgment, ezeontion thereon, a levy, and the sheriiTs deed an
all that need be shown. Ware ▼. Bra^fcrdt 427*
% Statutb BsQunaaio Smnoiv to Adtskexbb Lahimi which he Is about to
sell under ezeontion, thirty days before the sale, is msiely dirsotory.
Id.
4L BxaOUTOUf HAT SB LbVIBD oh THB DaT OB WmOB IT IS KmnuuBLBv
and a commitment thereon is Yalid. Fkkker r. Bradleift 82A.
A Sbbbov HATDfo AH ExBUUuoB IV BIB Habimi, and a reasonable opporln-
nity prosenting itself to exeonte it by aoommitment of the debtor^ body,
most do so. /Id.
lOi Failubb to Rbtubb ab SzaoonoH witiiin the time oommsnded, afk«r
complete serviceof the same^ without proof of aotual losi^ wHl not cntitla
a judgment creditor to an action on the case against the shorifl* Id.
IL SBBBZivAoxiBonBDBBSPBcnALlBsz&noiiOBSigiTinghimadiscretiQBiB
the enforoement of a writ, is not liabb for the exennse of snchdisovstion.
Id,
12. BxBoonoB FiBST Lbvibd bas Pbk» Jjju tfaoogh it be n judor execn-
tion, and comes last to the offloer^s hands, where diflEionnt exeontiooB
ttgjKuut the same defendant are deliyered to different offloen lor ssrHoa.
JfiOion ▼. CommonweaUh^ 580.
IS. BZBOOnOB FiBST &BGBIVBD BT OfFiUBB BATIWO SBVBBAIi SXBUUTJOBB
sgainst the same defendant placed in his hands at diflersnt times, must
be first levied and paid« /dL
Mb Sbvbbal BzBonnoifs Dblxvxbbd to Doibbbht Dbpotbb of bamb
Sbbbitf, at difbrent times, must be regarded as deliyered to the sheriff
personally, for the pnrpoee of determining the right to priority of levy and
satisfaction, and the writ first delivered to any of the deputies must be
first paid out of the proceeds of a sale made by any other of the deputies
on a writ subsequently reoeived, if the prior writ is brought to the notice
of the deputy making the sale before he has actually paid over the money,
and for arefuaal so to apply the proceeds the sheriff is liable on his bond.
Id.
I& Sbbbivf LBvmra E3cboutiob is Kxoabokd as Plaibtov^ Aobbt, in
some degree, so far as he does not exceed the mandate of his writ; es-
pecially in case of a levy on realty. Kirkpabriek v. Black, 192.
16L Cbsditob Pboouribo Lxvt on Entibb Tbaot, of which he is pert ownei
in conjunction with his debtor under an agreement whereby the latter,
for a share in the land, Ib to make settlement upon the whole tract, and
the former to procure title from the state, and to pay the purchase money,
forfeits his rights as against a purchaser under the execution, and such
purchaser obtains a good title. So notwithstanding some evidence that
he knew of the agreement. Id,
n, SHXBinr IS Pbbbumbd to bb Riohttullt nr Possession of property
taken in execution. Wafer v. PraU^ 681.
18» Pbbsob CLAnnNO Propbbtt Takbn bt a SHXnifF in Ezbootiob, Bust,
800 Index.
in ft iolk agidiHrl tlie offfioer, esUUiih a olaar and p«fBot riglift or tttkb.
Id.
10. Pdbobaser oy Ijused Pkopebit ON Bzsoonoir AOAiHBr TBI Lbbob, k
not entitlad to rent paid in advaiioe after the renditioii of the JadgaMol^
in aooordanoe with a atipalation in the leaaa. Faarmer^ He, Bamk t. Bge^
laa
tOi PuBCHASBR ov Bxaoonoor iCAT DmaniBM Lbaob of the premiaea exe-
ented after the rendition of the judgment under which he pnxohaaed, hj^
goring the tenant notioe to qidt» but if he doea ao he ia not entitled tv
renl Id.
SL PVBCHASXB AT SHDUyi^S SaLB WILL HOT VM DbOLAXBD TaXJETEM fOT thtf
debtor where he haa paid the porofaaae money, and ia goilty of no tend,
merely upon proof of a parol agreeuMnt on hia part to porofaaae the land-
far the debtor, aaeh an agreement being within the atatate of teodL
Hahtet v. O'Oimiier, 180.
S8. F6RMor8HXBiVF'8l>BBD.--Aaheriff'sdeediaBafllQientifitdiow8tfaattiir
oflker had anthorily to aell; therefore where the deed reoitea the exeoar
tion, and the namea of the parties as therein stated, it ia aoffioiflnts
though in referring to the jndgment it doea not again reoite tiie naoiea
nor state the amoont of Uie Jadgment ezoept aa it appears upon the
•xeention. Pertku^ Leaaee v, DQMt^ 07.
n HoiaoAOS or Pnopivrr Ezskft ibom Bbnounov doea not render aaoh
property or the eqnity of redemption therein snbjeot to eawcntion by the
Bortgigor's oreditoca. CnUtU ▼. /onef , 086L
WL R^BOUTIOH laWJMD OH A DOBMAIIT JuDOMmiT PiBBlBPIJkB, bet IMt ^qid»
and can be aet aaide. Brown v. Lomg^ 48.
Sea QtAXKnaoaani MoBaEOAon, 9; BagLUvia, 8; Sbbbiub.
EXECUTOBS AND ADMINISTBAIOBa
L Pdbobaskb AT Bzboutob's Saui or Lands, the equitable tide to whish
waa acquired by the testator after the ezeoation of the will, may reaoind
the contract, notwithstanding the holder of the l^gal title oUbts to de-
liver to him a conveyance of the lands. Such porehaser will not be com-
pelled to reoeiyo a title that may be disputed, and the minor heirB of the
decoaaod would not be precluded from asserting their title aftsr thsy
oame of age. Meadar ▼. Sonbyt 432,
% Obmol or Couurr Coubt Dibbciino Admznibxbasob wish Wha Av-
VBZBD to sell lands, acquired by the testator after the aasontioa of the
wm, ianuIL Id.
See Nbootiablb InsTBUifBEniB, 28.
EXEMPTION.
See BzBOunoBB, 18^ SS»
FACTOBa
See AoBNcnr, 4, 6.
FAI^E PRETENSES.
See Cbiminai« Law, 11-12.
Index. 801
FAIBB BBPBBSENTAXIQNa
8i>flL4iinwi, ft, 6; REBOMBioy ow Ooxnufla^ L
FESTUBJSS,
8m Publio LAinM^ 8.
TORBKARANQL
8m Amnjxrm, 1.
VOBOERY.
BmGukdul Law, 4-10; BmBom^ 17*
FRAKOmaES.
8m Quo WASMAXVk
VRAUIX
!• IkAVD WILL Bov BB FUBnoD, and the bavdoQ of proof to wfahHih i> to
vpon the pttty wbo aUagw it. NiekoU v. PWteii, 71S.
I» OooBn OF Law avd Eqvitt bayb Conoubbbmt JuBmnonogr Im cmm «I
iRHid. /—tow T. BtaiiMeB, ftSi.
8m Judqmbvtb, 6, 6; Pbb-bmftiob, S.
FRAUDULENT OONVEYAKOES.
L OOBTBTABQi^ WHBB 8BV ABIDaOH TBB LbOAL IbVBBBBCB OF FBAUlSiB tlM
iliMiico of any evidenoe of a oorrapt a^preomflflit Ijotwoou the porttoi^
win be allowod to atand as aeooriiy for any oonaideration advanoed by
the giantee. Andtrmm ▼. Futtetf 290.
% SmuLATBD Ck>HTBAOV BY wsioH A Tranbtbb OF PBOPEBn is made to aa
apparent Teodee, ia not neoeaaarily frandnlent so ae to depriye thoTendor
of his right to compel the apparent vendee to oooq^y with the oonditiona
of the transfer, nnleoB the object of the transfer was itself nnlawfol, or
was intended to injure or defrand third persons. Oravkir^B Ourator t.
Catrrah^i Sa^r^ 008.
t. CoBTRAcr BT WHIOH AN Afpabbnt Vbbbbb Aobbid TO 8bll the properly
as his own, and after dedncting the amoont of certain loans and advanoea
made to the vendor to repay to the vendor the exoesa of the prooeeda
of the sale^ the principal object being to defeat the claims ci certain judg-
ment creditors of the transferror, Ib frandnlent, and no aotion will lie by
the transferror or his representatives to reoover the sorplns agreed to be
repaid. Idm
4. BoKA Fn>B PvBOBABEE FROM Fraudulbnt Vbndbb gots a good title, on-
afiEected by the fraud. Sw{ft v. Holdridge, 85.
ft. Vbbdkb IK GoNYBTABCB TO DxFBAUD Cbbdttobs 18 Tbostkb foT the latter
while the property remains in his hands; upon a conveyance by him, the
trust ceases. Id,
•• CoirvBTANCB TO DxF&AUD Cbeditobs IS BiKDiNO on the parties thereto,
who can not set up, against each other, the fraud on the creditors; and
the vendee who loses his title by the acts of the vendor may recover
against him. The vendor may, therefore, be a witness either to defeat
Am. Dao. Vol. XZZYI— a
802 Index.
or to tnstein rach oonTeyaaoe, his interest being a hslsnfd
esse. NkhoU ▼. PaUm^ 718^
See 8ali8»2-4.
OABONG.
HoMB-BAonio OB HoBSi-TBOTTiiio 19 A Gamx within the ststttte "to prs-
Tent gsming for moo^ or otlier property." And money lost by betting
on a trotting mstofa may be recovend bsok by the loser. The statate,
with respeot to the psrty losing, is remedial, not penaL MUt t. Beak^
728.
See Waokbs.
OABKISHMEKT.
L OmnEAL tevTB in AmoKFeri will Lxr nr Pnoor of a Pbbtxoub Gab-
xnHiuufT by which the debt now sued for was reooversd from da>
fendant Cook v. Fidd, 436.
% Pabol Evxdxnob IB ADioastBLB TO Idkntift tub Dbbi recovered by jndg^
ment against the defendant as gpunishee with that sued upon, il the
identiAoation does not appear upon the face of the record. /<£.
lb JuMMfBHT AOAncsT A Gabnisheb IS NOT A Dkfbksb when sued by his orig*
inal crsditor, unless the Judgment has been satisfied. Id,
4i Dibolosubb ov Trubtbe ahd Judomemt upon it abb Admdsiblb in evl-
dsnoe» only between those who are parties to the soit^ PiiU v. ifoww,
787.
See A^TAOHMBHTH, 11, 12; IS.
GIFTS.
See AuBN8» 3; Gobpobation8» %
GRANTS.
See Dbbdb; Pre-kicftion; PirBUO Lanib.
GUABDIAN AND WARD.
L AvTHOBnr Gokfibbed on Tbbtamxntabt Guabdians d Joint and Sbf-
bbal; it is coupled with an interest; if one dies it will go to the survivun
:ind where one refuses, the other may qualify without him. Kevcm v.
WaUer, 391.
t. To Ck>ivsTrn7TE a Guabdian, Exfkess Wobos of Appointicbnt abb not
Nbobssaky; any words will do if the father's intent is apparent; but the
language must be such as to imply a right to the custody, control, and
protection of the ward. Id.
S. Lanouagb not a SnrviciEKT Appointmbnt, When. — Where a testator be-
queathed Ills son a certain sum of money to be invested as his executon
should think liest, and also ordered '* from the proceeds or dividends to
educate him in the best manner under the direction of my said ezeon-
tors," this lauguage is not sufficient to constitute his ezeontors testama^
tary guardians. Id,
HANDWRITING.
See BvixiBNOB, 6-8.
Index. 808
HIGHWAYS.
L HnnrrATiABBiHBPBOPiBirroyTBsSx!An»rabjMktolti«lNolntedif«^
tkn and oontroL Oom qfPhHaddphia tic R. R. Co., 202.
% Snsm ov Ikoobporatid T6wn abb Pubuo Hiohwati» and the ngaU-
tioii tboreof giTen to the oorporatioii for ooiponto purpotw it iabject to
the paniaoimt right of the stato to provida for a mora genaral and az«
tended oae of them. Id,
II liMISLATimB MAT AUTHORIZB LaTINO OF RAn.ROAP IN A StKUT withottt
proTiding oompenaation to the owner of the aoil, thia not being a '* tak-
ing" of hia property, bat merely a change in the oae of the pablio right
of way over it. Id,
4^ Gmnm bays Biobt to Tbatbl otkb whoib Wmni of Hiohwat with-
out being aabjected to other or greater dangera than may be preaented
by natural obataolee, or thoae oocasioned l^ making and repairing the
tnmled path. Johnmm ▼. WhUe/Uld^ 721.
& Towy n Liabu fob Damaobs arising from its having allowed the aidea of
tfia traveled path of a pablio highway to be inonmberad with logs or
atlMr thbfi umeoemarily placed there. Id.
See Watbbooubsbb, 10.
HOLIDAYS.
See NBOonABLB IxvnmaanB, 27.
HUSBAND AND WIFB.
AlHnMioiisoiF WiFBAMKOT APMifWiBLB to charge her hnaband in BB aotJOB
againat them for an aaaanlt and battery committed by her. Hfrnqf v.
Mkntd^iaX
See ILkBBUOB Ain> Divobob; Makmbp WoMBirt Witbbmm, 1.
ILLEGAL CONTRACTS.
I. Aonw 10 Briobob an Uhiawful Contraot can not be maintained.
Orwrim^B Oaitilor v. Corrabffu J^r, 606.
2L CoBTBAOVt THB CoHBiDBBATXOir OF WHXOH Bblatbb to the perpetration of
atend or oontemplatea the performance of an act prohibited by law, la
vnlawfnl and can not be enforced. Id,
DiPBOVEMENTa
ImBOVBMBBn Maob bt a Tbnant at Will Innre to the benefit of the land-
lord, and can not be reached by the tenant'a jadgment oredltorB. Aaie-
See Oo-TBirAvoT, 16; Public Lahss, 6^ 8.
INDICTMENT.
See Gbdokal Law, 4-9, 11-18, 16, 16^ la
INDORSEMENT.
Sae Babks abb Bahxino, 3; Nbootiablb InBTBumuffm,
INFANCY.
1* CoHTRAor OF AV LffFAMT 18 VoiDABLB only , not vold, and ha oan not^ wlilla
8M Index.
la in&at^ diaafllrm it, ezoept In case of evident neoeesity. Farr t. Ami-
Mr, 327.
% ImrAiTT oks voT, ARKR ARBiviNa AT AoB^ DiBAfKBM his ootttnct, aoA
reoover back property tranafeTTed withont reatoring the oooaldentioA
raoeived by him. Id,
Si IviAiiv MAT Bs8aDn> GoKTBAcr OF ExcHANOB thoogh he thecaby obteiiia
property neceaaary for hia aae. Qtom t. HaU^ 296.
4b Hcna n wot NaonaABT vob an Inxsn, though the latter waa pennittad
to onltivttta a portion of hia father'a land for hia own benefit /d.
See Mahbiaob and Ditobce, 4; PABurr and Child.
INJUNCTIONS.
L Bnx nr Equitt vok aw iKJUvcnoK aqaikst a Public Kuibahob will wA
bo eatartained unleaa it ahowa that the plaintiff will anataan » apedal
or peculiar damage from it, an injury diatinct from that done to the pab>
Ho at laige. Bigdow ▼. Hartford Bridge Co., 502.
% IviUBCnoir wnx not bb Gbabtsd nnleaa the yiolation of pbuntifra rigfata
irideh it ia aooght to enjoin ia aooh aa la or will be attended with
Mioal and aariooa damagau Where the damage that will be done laTecy
■Da]], no injonotion will be granted, oven thoogh aa aotion at law might
lia. Id.
X iBniiRniOH WILL HOT BBGBABTBDAOAiNaTAvlBJiJBrwfaioli neither exiata
nor la thnataned by defendant^ bat whioh pUintiff apprahnda may
ba broui^t about by fatufo aoti of the dalandanli if thoaa whioh h»
■aaha to aqjom nra not praranted. Id,
Sea PBB-xKpnoiir, 1.
iKQUisrrroN.
See LraAimr, S.
INSAKITT.
1. Hnaa ov GbaxtoeWbo was ov Ubbookd Mnmait the tfaaaofooHviy-
anoa» mny reooror In ejeotment agalnat the giaataa^ without natitatlo»
of the pnrohaae money. WaU ▼. HUPs Heur^ ISI%.
IL QbAHTBX, IB GONYXTAKCDB VoiBABLB OH GBOUND OT OBABTOB'S LmABITr,
18 BsTOFPBD, in an action of ejectment brought by the grantor'a hein, t»
deny the grantor'a title. Id,
t. Ibquisition aiteb Making or Dbbd Finbibo Gbamtob Ibbabb, and le-
gally incapable of contraottng at the time of the eaeoation of aaoh daea^
though €X parte, ia prima fade evidence againat the grantee in ejaotmani
brooght by the grantor's heirs. Id,
4^ Gafaoitt to TftABaACT Bfsibbss " with Judombnt and DnoBBnoB," ia
not neoessary to be shown to support the validity of a deed of a grantor
against an inquisition, subsequent to the execution of the deed, finding
him to have been of unsound mind and incapable of managing his affaira
at that time; as indiscretion and defect of judgment may eziat without
legal incapacity. Id,
fib IB8AKIT7 MUST BB Showx bt Clbab akd Convibcibo Pboov to the aatifr
faction of the jury, where it is set up as a defense in » criminal proaeon-
tion; but if the jury entertain a reasonable doubt of the deCBndant%
aanity, they should acquit him. State v. Marier, 898.
Index. 806
IMBOLVENCT.
8m AflBionaDiT iob Bihdit ov GEMDnoia.
INSTBUCnONS.
866 GBiMnrAL Law, 27; Plbadino axd PEAonn, 16-22.
mSUBAKCE— FIRE.
L OomnuLer or Salb, Brfscr of 09 Riqbt to Imbitkaiiob.— WImk Um in*
mred eoten into a oontraot to convey the premises, bnt before the oon-
tnot is ezeoated the premises are destroyed by fire, he retains saoh aa
interest that he can maintain an action on the policy. Whedifng In$. Oo
T. Morrimm^ 385.
% CoHDinoK 19 PoLiOT OF iNsnBANOB, that a transfer, if made without the
consent of the insarers, shall render the policy void, relates to oonTsgr-
anoes by which the interest of the insored is absolutely and permsiienlJj
divested. Pfuwr ▼. Oeecm /ns. Co,^ 065.
Si PouoT n HOT Ayoidbd bt a Sale or thb Inbubbd Pbopxbtt, when, be-
fore the happening of the loss, the property had reverted to the original
owner, by reason of the vendee's f ailare to pay the parohase price as
agreed by the tenns of the sale. /d.
4» CONDITIONAL Sale or Insdskd FBorxBrr sospends the risk dozing the ex-
istenoe of the condition, bot the reversion of the property to the vendor
npon the failnre of the condition revives the risk, and entitles the vendor
to an the rights possessed by him before the properly was transfemd.
Id.
INSURANCE— MARINB.
1. PuBOHAflB or Insubbd Pbopsbtt b7 thi Ownbb at a sale lor the benefit
of all concerned, is equivalent to a revocation of his prior abandonmoit^
and will preclnde him from recovering on a daim for a total loss.
BoberUon v. We§Um M, S F. Int. Co., 673.
% Pabtioulab Usaob and CusTOic, by which owners of insored property wers
permitted to porohase the property at sales for the benefit of the insamrs»
can not have the efiect of legalising a sale which, by the geneial law, is
onlawfol and void. Id,
5. Masteb mat Sbll Insubbd Gaboo for the benefit of all ooncemedt where
it has been so damaged by the perUs of navigation, that no practicable
coorse reouuns to be porsoed by which it can be restored to its original
state, or preserved from totsl loes. Id,
4. AiTBR Abandonment, thb Insurbd, in Makino Saui of the insored prop*
erty, becomes the agent of the insorers. Id,
4. Salb or Vbbsbl and Oaboo Damaobd bt Aooipbmt is jostified onlyin
case of orgent necessity, and after the master has employed doe diligsnoe
to discover whether other available means of saving either were within
his reach. CcUdtoeU v. Wegtem Jf. ^ F. Ina. Co,, 667.
6. Dub Diuobncb in Such Casb depends npon the ^ts. The master is in-
vested with a discretittQ depending opon the circomstanoes, and if it
appear that he exercised this power with ordinary good jodgment» fair-
ness, and promptitude, the necessity of the sale will be presumed. Id*
7. OoMPETBNT Cbxw IS EssBNTiAL TO THE SEAWORTHINESS of an insured vessel.
806 Index.
and if not pvoyidad ai the commrniowmant of the ikk this will eunitihito
m ground for aToiding the policy. Id,
i. Wamramtt of SBAWosTBimBB IB vov Bboxbt bythooooaaiODalaboeDoeof
m aaainin or deok-hand npon other dntiea oonneoted with the yofBg% aa
to praooie water or provisiooa, eapeoially when hia preaenoe at hia poat
of dntj would not have ptevented a partioolar loaa by aooident. Id,
INTEOEtPLBABEB.
L Baji gy IwTBTfiBADinfc, to DanomnniTmi Owmmmhif ot PaoMTr tak—
ondOT ezeoation, can not be maintained by a aheriH^ againat tboae order-
log the ezecationf and pffrfi>nf aaaerting i^ hftrtiH intereat in the uiouetty
adied. Qukm ▼. Chtent M*
% Bniror iHnBFLBADXR MUST Admis a Tma AamnrvsiPiiaDnEiivinall
of the defendants. Snoh biU, which atatea that aa to aome of thedatad*
asti plaintiff ia m wroog-doert can not be anatained Id,
JOINT 00NTRACIOB&
See HoQEni^ 4; Paymskt, 6; PUASoro jjkd Paaono^ %
JOINT TENANTS.
See Oo-mrAVOT» IS.
JUDGMENTS.
L JtooMBMT nr av Aopow or J^nonaan can not be ooflatwaUy attaekad
by any of the partiea or their privieB; bat atrangen may ahow that aoeh
Jvdgment was fraadulent and odUnaiTe, and obtained by an attotn^y
wtthont any anthority from hia aaaunod dient. ^ Ainaoaa t. AUen^ 861.
% JuDOMSHT NOT IN Bbk 18 Nbtbb OovoLUBiyB ezoept npon the ymj mat-
ter in Judgment, and between tlie veiy aame partiea or their priviea
either in Uood or eatata. Aa to all othera, the Judgment may be Im-
peaohed and oontn^Uoted by collateral evidence. JToeon ▼. BltMMi, 8S1.
Si V!eval Judommst nr Favor of a DanNDANT xat bi Bhtibbd npon an
appeal from a Judgment of nonaoit in hia favor, when the prooeeding ia a
petitory action to try title, and the defendant ezhibita the beat title to
the landa in queation. Qvidry v. YFooeia, 077.
C JunomMT AOAom Oira Jonrr OwHrat of Gbavkbl in an aotion brouj^
by him for an injury thereto predudee him from maintaining with hia co-
owner a aubsequent joint suit for the aame injury; and auoh miajolnder
may be taken advantage of by a plea in bar or in abatement, or by a mo-
tion for a nonsuit. BriaendiM v. FrankfoH Bridge Co,, S9I,
S. CouBS OF Law icat Vacate and Sxr aside its Judgment wlien founded
in fraud, or rendered under droumstancee of auipriae or mistake such aa
to entitle the injured party to relief against it. Died v. Farrow, 287.
S. PEAonoE UPON Motion to Set aside a Jitdgmbnt at Law fob Fbaitih
is for the court to cause an order to be entered, after a sufficient show*
ing has been made in support 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. Id,
Index. 807
7. VnDXor axd Jubomxnt a&b not CoNOLUSiyB m to matters incidentally
braui^t in qneetion. Blaekmore v. Ortgg^ 171.
0M CtoHTBiBUTXON; Cbkditobs' Bills, 2; BjBonnNTy 4, 5; Equitt, 1; Ex-
BOonoNS, 24t Gabiosricxnt, 3, 4; Jubt anb Jubobs, 6; Jusncm ov
TBM FBAOB, S, 6; PABTNXBaBUP, 8; PBocnB8» S.
JUDICIAL SALES.
L RiOBT TO Sir ASSD% Salb made by order of a ooqrt of chanoery is one oi
the attributes of that ooul lAUdl ▼. ZwUa^ 415.
SL Enoubb BulBi to Opbb Salb whenever advanoe of ten per oent. on tiie
fonner ssle is offered* Is not adopted In Alabama^ being manifestly ui-
saxtaUa to the babte of our people, end to the stale of tUngi eiiillng
amonnt vsa UL
See MoBTOAOBS, l-4(.
JUBISDICnON.
(be OBnoDUL Law, 1; FkAtn>, 2; JusnoBS of vbb Pbaob, !» 2; VikwUMm
Avx> DiTOBiai, 2; Pvbuo LAimB» 1; Bfuaorm^ 8.
JUBY AKD JUBOKS.
!• Jvboe hatzno Fobkbd Dboidxd OnanoK, whioh is positive and not hy>
poihetioal, npon the merits of the oaae, either from personal knowledge^
from statements of witnesses or of parties, or from mmor, wliioh
opinion will probably pravent him from giving an impsrtlal vwdiot, is
subject to ohalleoge for cause. SmUh v. Bamu^ 515.
SL LioHT, Tbabbibnt, ob HTPoraBTiGAL Ofiniok Fobmbd bt Jubob, whioh
may be ohanged, and whioh does not show a oonviotion of the mind and
a fixed oonolusion upon the oase, is not a good ground of ohallenge; and
a full eTsmination may be allowed if necessary to ascertain the state of
the juror's mind. Id.
Si QranoH Fobkbd bt Jubob vbom Buxor as to whioh party in the case
on^t to succeed* where he stetes on his examination that he still retains
that opinion if what he has heard is true, but is not asked as to whether
or not he believee it to be true, is not a good ground of challenge. Id,
C AvriBAViTB OF JuBOBS TO Imfbaoh thbib Vkbdict by showing that they
misunderstood the instructionB, and without such misunderstanding
would not have found as they did, are inadnussible. Id.
fib LrOOMPBTBHOT OF A JUBOB IS NO GbOUKD FOR ABBISnBO JUDOMBST, sl-
though it may be good cause for a new trial. Atkhuom v. AUen^ 361.
#. Imfabbuko a Jfbob on a Fobmbr Trial, if no verdict or other expres-
sion of opinion is given, is not a sufficient ground for challenge. Id,
See PLBAiMDra ami) Fxlaotigb, 15; BiscisaiON of Gontbaoib, 3; Vkbdiot.
JUSTICES OF THE PEACR
L JvBiBDionaN ami) Powbbs of Jnsnois of thb Piaob are derived froQ
statutory provisions. MaHin v. FaleSy 693.
8. Qbantikq of Wbit and Issuakob of Subfobnas are the only powers that
can be exercised by the justice, before the time for trial appointed in the
writ. After that time arrives, if the plaintiff fails to appear and prose-
cute, the justice must render judgment for coste in favor oi the defend-
808 Index.
asft; if ihtt dafe&duit faik toapp«ar, Jadgmeot miut be rendarad lor the
pUfatiff; if the Jiutioe fuU to appear at the time, or witldn m nwuMMKlii
time thereafter, the eoit faila, except in thoee ceaea provided te is tibe
atatate. Id.
IL Wkuui MSiTJUa Jvsncoi hob Plaihtiiv AmuBS aft time and plaoe of
trial, there ia a fuliire to proeeoate, whioh pata an end to all further pn>-
oeedinn. Id*
C NaiBiiraIdaB«KA]rAion7Ai.Bn8i8TAVOBOBDA]roBBoan jnatifyaooiirtof
Jnstioe in oonokiding that the adminiatmtion of the law ia enperaeded,
and tiiat the oomae of Jnatioe moat ghre way to lawleae Tiolenoe. Id,
fib Mmbm AFnaammov ov Potiteb Dahokb will hot Jubxot a Jnatioe of
tiie peaea in diaregarding the nilea preeoribed by law. Id,
€, Bboobd ov a JumoB of th> Pkaos is as CoKomaiva aa thatof anj otlier
eonrt. It can be tried by inspeotion only, and ia oonolnaiTe of evecy liaol
atrted thneiB, mtfl regokriy aet aaide. SpaMing t. OkamberUn, ML
See OonmAiicni; ICabbiaob and Diyobob, 1, 8; Fluxnn, 2.
LANDLOBB AND TENANT.
TaKAMf^ LiABiLRr lOB Bmsfi, wKiv PBKMiasa ABB Dbrbord.— WhoM
tanant kaaaa oartain property for a apeeified time, and in the oontraot
■graai to pay a oartain anm yearly for rent, and makee no raeerration on
aoooottt of aoddenta, his oontraot to pay rent is expreas, and he is It*
aUe tharafor, though the pramiaee are deatroyed before tiie ezpiivtioB ol
tfie time. Lkm t. Bo§$, 05.
See BlBOTMBVT, 2, 8; iMPBOYBMBHn.
LEASES.
See BziouTioiTS, 19^ 20.
LBQAGDBS.
See Wills.
LEGISLATURE.
See OohbtiutiokalXaw.
LIBEL.
i. OiHBB Pab98 ov Pamfhlbt Allbqxd TO BB LiBBLDUB in oartaiB paiB>
grapha may be read in evidenoe by the defendant to explain the para-
grapha upon whioh the action ia founded, to ahow the motiye and intent
of the publication and mitigate the damagea. liareKead ▼. •/bnea, WL
8. EriDxircB nr MmoATioir ov Damages ia admiaaible notwithstanding a
plea of Jnstifioation. Id.
HENS.
See Attacbmxnts.
LOST NOTES.
1. Lost Non kot Negotiablb, or not Traksfsbrxd iv Nsootiabib, may
be recovered on in an action at law. LcaeU ▼. LouuU^ 352.
2. iKDXMmTT MUST BB GiVBN BBFOBE A Kbootbbt can bo had on a lost
negotiable inatroment actually transferred. Id.
Index. 809
X Ownn OF Baitk Kon Ditidxd los PuBPom ov TaAiminnoVy wImm
OM half ia lost through the mail, may reoorer from tha bank on preacnte-
tkm of tiia oihar half, for tha loot half not baing aapaiwtalj nagotiablab
tiba bank oan navar ba injorad by it 8$aie Btmk ▼• Amrtitnf 6ML
MAUCnOUB PBOSECUnOK.
1. FBOBIODTIOV is TmBMOUTMD BT BmTBT OV KoUJi FlOSBQUIl tha aoBBsad
may than mm for a malioioiia nroaaontum. Tomm t. PcXtUm ff88.
^ DwauBaB w Nolle Pbosbqui is wot Pbdll Paoib KvmjuiaB oy liALnni
or of want of probabla canaa to aoatain an action for maliokraa proaaon*
tion. Id.
■1. MaUCB abb WaBT ov FBOBABUB OaUBI must both BB ALT,BgBI> ABP
Pbotbd in an aotion for malioioiia proaaontian, and thoa^ tiia teoMr
may ba infanrad from tha lattar» tha lattar oan not ba inf errod from tha
formar. /dL
■di PABivr AonBo xb Subobbibaxxob «o OomioBWBALiB'i AnoBBBTy in a
proaaontion inatitutad by tha ]attar*a diraotlony from information darivad
from othars, ia not UaUa for a nialieioiia proaaootion, thoQgh ba ia aotoatad
by malioa afoinat tha aoonaad. Id.
MABBIAGB AKD DIVOBGB.
!• Mabbxaob Solbmbizbd bt Pbbboit Holdxbo OvnoBi ov JusnoB of tha
paaea and jndga of a mnnioipal oonrt ia l^gal, and idiara tha oartiHoata
ia ailant as to tha capacity in which he acted in perf onning tha oara-
mony, tha law wiU aiaome that he acted in the oapadty in which ba
might lawfully perform it. •/oaet v. Jcfnu^ 723.
•% STATun ov Mainb Givzno to Okb Judos JuBiSDionoB in caaaa ol
diToroe, givea him joriadiction in qneatiomi of alimony. Id,
■1. Bbgisiob or Judob, in Such Gasbs, on a QunnoN o'9 "FAOSt can not ba ap-
pealed from, bat is aa conelusiye as the finding of a jnry. Id,
■di Ibvant Wivb mat Maintain Suit fob Divobob, in her own name^ witfaonl
acting by goardian or next friend. Id,
4k Fboov or Mabbiaobin Fact is in contradistinction to proof inferaUa fram
droomatances. State ▼. HodgdtmB^ 742.
^ Mabbiaob in Fact, in a Cbdonal Prosboution fob ADuueBBT, moat ba
proved by some person present at the ceremony, or by the prodaction of
the record, or by the confession of the prisoner. Id,
7* PsBVORKANGi ov THE Habbiaob Cebxkony, by onc dnly aathoriaed for that
parpoee, is necessary to be proved in a criminal prosecation foradnltery.
Id.
S, Btidengb or Cibcumstances Showino Fathbr's Pbevious Assbnt to
Mabbiaob of his minor son is admissible in an action broaght by tha
father against the justice who solemnized the marriage for the statutory
penalty, bnt not evidence of snbeequent condnct showing that the father
was pleased with the marriage. Carshadden v. Poortnan, 145.
4l Pbomibb or Marriage mat bb Implied vbom Ciroumstances, bnt mere
attentions paid by a man to a woman, although exclnaive and long con*
tinned, will not warrant such presumption. Muruon v. Hagtings^ 345.
See Ck>NrLiOT or Laws, 4.
810 Inbsz.
IffARRTRD WOMEN.
1* Dnm ov Wwmmootebs hot Ezsoutkd Aooosimro 10 Skaxifb oan aok W
v^gMded M an agnement to oonvey, the qieeifio pcrfonmaoe of vbkh
will be deoreed against her. Carr ▼. VfiZZiaflM, 87.
% MnxAKx xv Makrtw> Womajt's Dued will vov BsOoBBBonED aa aguHl
her. Id.
Si Cbattbldi THiPowBBioir ovmTBirarmol » wooaa. kaotaehoK
in aistaon» bat a ohoae in poawmion, and on bar mairiago wiU paaa to htr
hnkhtin^, MUler t. Biaakimu 58.
C PSBBONALPBOPBBTTySSTTLXDTOTHXSXPAlUSnnnoCamaRiadwVBiaat
ia Iree from any right or control of bar than bnaband; bat if ba diaa^ and
aha aabaequently nuurriea» the estate therein TeatB in aneb aacood bnaband
apon hia radaoing them to poaaeMion. Id,
fib BlQIHECT OV THI PrOOMWW OF THS SaLB OT LaHB TO ▲ lfairEng> WOMAM,
innna to the benefit of her hoabaod. Prodor r. Jknbm^tiL
See HusBAVD AHU W11&.
MASISE AND SERVANT.
See Nbouobnci» 7*10l
MISNOMEE.
§m Nmotublb JjsnRxmsstB, UL
MISTAKE.
See Makrtw> Woimr, 8.
MONET HAD AND BBQEIVED.
See ComfTBBinErr Bilu, 1, 2^
MONOPOLIES.
See OoBPOiunovs, 7; Emmm Dcnuni, fk
MOBTQAGEa
L Wbsbi SiBAiroBB PoBOHABBs AT MoBTOAQB Salb, it Will not besot aridba
lor mere inadeqoaoy of price, however groas, anleaa there be aome nn-
laimeaa at the sale, or the partiea interested are sniprised, without £bdU
or negligenoe on their part; and in no caae of this kind will it be ask-
aaide after confirmation, imless fraud can be imputed to the porohaasr,
which was nnknown to those interested when the oonfizmation was made.
LiUell V. ZttiUz, 415.
% Biddings will bb Opbnbd Onob, whbbe Mobtqaobb ib Pobokaseb, and
the debt is not discharged by the sale, if a reaaonable advanoe is o£fored«
together with costi and expenses, which shonld be deposited in ooai^
In such case an advance of at least ten per cent., and in no caae oi lass
than two hundred dollars, will be required. Id,
3. Pbbvalbnok or Tbllow Fbveb at Timb abd Plaob ov Salb, owing ta
which a large part of the population had removed, and busineae had been
generally suspended, furmshea a good ground for setting aside the sala^
and for excusing the non-attendance of the mortgagee. Id.
Index. 811
L SaiiB oan only bb 8xt abzdb upon Patmxnt to th> Pubghabxe of ib»
parohaae money, of all Sams laid out by him in imprOrements, and of a
liberal allowazioe for aU tronble, oosts, and ezpenaea incurred by him.
Id.
A. PvRGHASBs OAK ROT BB Ghabobd WITH Rbmt, where sale ia aet aaidei
unleea he haa actually received it Id,
8. Dbbd Absolutb upon its Faob will nbvbbthblbss bb Tbbatbd ab a
Mobtoaob, if the ciroumstanoea attending ita ezeoutioii, and the aubae-
quent conduct of the partiea respecting it» indicate that it waa regarded
by them aa collateral aecnrity for the payment of a debt. Iftehoia t.
Heynolds, 238.
7* Iv Av Absolutb Dbbd bb Bxboutbd bt thb Qbantob bob Two PubposbSv
one legal, aa to aeoure a pre-eziating debt due the grantee, and the other
fraudulent, aa 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 ita execution. Id,
8l OomrxTAHOB bt a Mobtoaobb of his Bight ajtd Iktxbbst in the mort-
gaged premisea, ia valid, even though another mortgagee, claiming by
the aame title, be in the actual poaaessiop of the premises, whether aucb
oonveyance ia treated aa an assignment of an equity of redemption, or aa
m technical releaae. Id,
tL MoBaoAOBB PuBOHAsnro thb P&BMI8B8 ON BxBOOTiOR agftinst the mort-
gagor, must look to the knd and not to the purchase money for payment
cf his mortgage, under the Pennsylvania statutes; so, where the pur«
chaser's rights depend upon an agreement constituting a " lien in the na-
ture ol a mortgage." McCanahan v. BeeMe, 136.
lOi Dbbd with Condition of DEFXASANcac upon thb Back is but a security
for money, and therefore only a mortgage; and whether the conditioB
preceded or followed the signature, does not a£foct its nature. PerhM
Lmet V. i>i&Ue, 97.
11. Whkbb Condition m not Comfubd with at Timb Stifvlatbd, but la
performed afterwards, the land revests in the grantor without the necea-
sity of a reconveyance. Id,
IS. MOBTOAOB.— CONVBTANOB OF LaND, AOOOMPANIBD BT VbBBAL AoBBB-
MBNT TO Ebsbll the Same at a certain date to the grantor or his appointee,
upon repayment of the consideration therefor, conatitutea » sale and not
a mortgage. King v. Kxncey^ 40.
ISi Unbboobdbd Mobtoaqb of a Vbssbl IB Invalid, according to the statute
of 1839, c 390, unless delivery and poaaession accompany the mortgage.
Qttdti^ V. Yfoteribiwe, 730.
Bee BzBOfunoNs, 23; Judicial Salbs; Notiob, 1, 2; Bxplbvin, SL
MUKIdPAL COBPORATIONB.
Bee CoBPOBATioNs; Hiohwatb, 2, 8, 0.
KBCBSSARIES.
See Infanot, 4; Pabbnt and Child, 1-4.
NEGLIGENCE.
1. CoNTBiBnTOBT Nbouobngb ON THB I'art OF A Pebson Injubbd by » rail*
812 Index.
road tnin baw ih« ri^t to any action for ihb Jajurj muMwA Fkiftm
T. PtmidMrtmin B. R. Co,, 658.
% Plaxmteiv oak hot Bbootsb foft IvjUBm SuraAiHXD bj rniaon cf hit
own fault or neglect JokHmmv. WkU^SM.'m.
X Wkuui Looi Arssmb vbom Mutual KBOUOSirci. neatlier par^ oen ra-
cow at ooflunon law. Sin^pmm v. Band^ 231.
4. OwvsB OF Q00D8 Ihjubxd by Mutual KBOuanroi aw Oamtke and tfaa
master of a ship colliding with the oanier's veeiel» can not recover there*
for against the ownen of the colliding vesML Id,
fib Mastxe or Vmssl nr Motion CoLLmnro with Vessel at Ahohob is
boond to know that the latter can not be got oat of the way so readily
as his own vessel can dear it^ and to take measores aooordinj^. Jd.
i. Failubb to Keep Siokal Lioht Bu&niho oh Vbbbbl Anohobbd in the
channal of the Delaware river at night, and to maintain a proper anchor
watoh on board the veeiel, is sach negligence as to prevent areooveiy by
the owner of goods carried thereon against the owners of a veeiel in
moiioB colliding with snch anchorsd vessel, for an injnzy to the goodi,
altfaoogh the master of the vessel in motion isalso goflfy of ne^genoe^
and the borden of proof lies on the plaintiiH Id,
7* PtAnmw 18 wot Ebquibed to Show bt Btidkwge that the driver of an
oamibos was not in the employ of a lessee of defendants, when the ac-
tion 11 gronnded on the alleged negligence of defendant's servant, and
the answer contains a general denial only. Hari v. New Ofiecms etc E.
S, Co., 689.
8. Rmploteb 18 LiABiB K» THE NEqLTaKWCE with whloh a vehicle belonging
to him was driven by a servant. Id.
8. BEBrovsmuTT ov BCasieb iob Sbbtant^ Act of negligence is not re-
stricted to cases where the master is actoaUy preeent and made no effort
to prevent the act which caused the damage.
lOi Bebvaot oak hot Bbooveb or Emfloteb for injuries occasioned by the
negUgenoe or misconduct of a fellow-servant. (XNeall and Qantt^ JJ.,
•ad Johnston, Ch., dissenting. Murrof v. 8. C, JR. JR. Co., 268.
See Basks ahb Baekxng, 2; Bvidenoe, 18; Hiohwatb, 6; Kotaboeb.
NBGOnABLE INSTRUMENTS.
1. FBomaaoBT Note Payable to a Pabticulab Pebson ob ** Holdeb" ii
a valid promiasory note, transferable by delivery, and the holder may ac-
quire a lawful title by delivery in the same manner as if the word '* bearer"
had been used. Putnam v. CrymeSf 250.
2. Bill ob Note Payable to a Pebsoit Named, or besrer, is payable to
bearer, and one coming into possession of it for a valuable consideration
lawfully, is not required to show any consideration between the maker
and the person named. Eddy v. Bond, 767.
8. Makers or a Pbomissort Note Who Desoribe Themselves in the body
of the instrument as trustees of an oninooiporated association, but who
sign the same m their individual capacity, are personally bound thereby.
Fogg v. Virgin, 767.
4b Holder of Note Pledged as Oollatebal Seoubity for a pre-eidsting
debt, is not deemed a bona fide purchsser for value, who will be protected
against equities between the original parties to such uota, Hpleu tbero U
Index. 818
proof of •ome new and distmot ooxisideFfttioii, sooh m giving time on the
pre-eadtttng debt, or the like. Depeau v. Waddimgtonf 210.
Ik BXOBAHOX or GOLLATXBAL 8aOOBITIB8 IB SuiflODDf T COVSXDSBATIOH tO
ooDstitate the holder of a note pledged as seonrity for a pie-eziating debt »
bomajide pniohaeer for valae, as where, in ooosideration of reoeiving saoh
note as seoozity, the creditor surrenders his right to the prooeeds of i^
bond for a larger amoont previoosly pledged as seonri^ for the same
debt, whioh he has delivered to the debtor for the poxpose of enabling
him to obtain payment of it. Id.
•» Delay of Maxxb 07 Noxs Flbdoxd am Oollateeal Sbourxtt in giving
notioe to the pledgee, after knowledge of snoh pledge, that no oonsidera-
tion was given for the note, is » oircnmstaiioe to be oonaidered hf the
Jury in determining his liability, /d.
7. IifsOBBEKEHT UFOir THE Bagk 07 A KoiB, piior to its delivery, by one
not a party thereto^ renders him liable as a Joint promisor, Nath n
8l AoRmniEirr toat One who Plaobs his Kaxe ok the Back of ▲ Nozm
for the aooommodation of the maker, shall be liable only as a seoood in-
dorser, wiU not limit his liability to the payee as a prindpaL I<L
tL PnoMnnoBT Note Fasbzeo bt Delxteby, will be prssnmed to have oom»
into the possession of the holder before matority. ffanriton v. Ediward$t
eoe.
IOl I^ltmeetb Ma0b ov a FBoimaoBT Non beiobb Matubxtt can not be
ofibet against » honajkle holder for value, whose title aocroed before the
note became due. Id,
11. Want or Considxbation fob a Peomibbobt Kotb is no defense in a soit
thereon against a banajide indorsee, without notioe and before matoxity.
HoBcaU V. WhUmore, 738.
12. PUBOHASBB OF A PBOMXaSOBT NOTB BEFOBE MATUBnT, with nOtioe of
the want of consideration, from a bona /Sde indorser without notice, ia
entitled to all the rights of his vendor. Id,
ISl Holder of a Note is Bound to Notift all Fbiob Pabtibs to whom
he intends to resort, of demand and non-payment. CarUr v. Bradlefff 735w
14. Faildbb to Kotift a Pbiob, will not Rbi.babb a Subsbqvent In-
DOB8BB properly notified. Id,
16. Subsbqubnt Indobseb in Obdeb to Chaboe Pbiob Pabtieb has gene-
rally a day after his own liability has become fixed to notify thoee who
stand before him. Id.
18. MiSNOMKB OF AN Indobsbb IN A NoTiCB intended to charge him, will
not vitiate the same if be knew that the notice was intended for him
and that the note described was the one in suit. Id,
17. Agent to Make Demand on a Pbomissobt Note is not entitled to a
day before he is boond to give notioe; but he may wait until the next
maiL fUh V. Jackman, 760.
18. KonOB OF NON-PATMKNT SHOULD BB SeNT TO THE PoaT-OFFICS NeABEBT
to the party sought to be charged, except in remote country places; in
such case notification by special messenger should be made. Id.
19. In such Case, if a messenger is sent oiT the morning after receiving no*
tice from holder's agent that payment had been refused, it will be a case
of due diligence. Id.
90L NonOE OF NON-PATHBNT OF BiLL OF EXGBANOB DkPOSITED IN THE POBT
814 Index.
Ofvmi and addreMed to the drawer at the place where the bill is dated,
is not ntfllcient to charge him, nnlem that was the post-office nearest his
lesidenos^ or nnless the holder, upon diligent inquiry, was unable to as-
osrfeain his residence. F^iord ▼. Joknmmj 421.
n. Pnoor OF Pbiob ok lHmuciDiAT> Indobssmbnts is UmraansAST in an
action by an indorsee against an indorser of a note, to entitle the note to
be admitted in eyidence, where such indorsements are not averred in
the declaration. YfeoiUy y. BeU trnd Sterling, 116.
S2. iKDOBSXicxiffT or KoTE IS AN Adiobsion of the drawer's handwriting and
of all prior indorsements on the note. Id,
tt. PofluasioK ov NoTs bt Indobsbb is Pbdll Faoib EviDBNOB that he has
paid it and taken it up^ as against a prior indorser, where tiie indotse-
ment is in blank. Id,
Ml Pboof ov Poemro ov Nonos or Dishonob ov Nan to be sent by mail to
an indorser, must be distinct and certain. Aocordin^y, whero » witness
deposes that he caused the notice to be sent» and that ''to the best of his
knowledge" the letter was put into the post-office, beoanse he is not
Aware of any neglect of that kind haTing ever ooonrred in the holder^s
stors, is insufficient. Id.
IB. KoTB GiYBN bt Makbb OF DiSH050BBD Kon FOB Samb Debt, payable at
a future day, without any new consideration, or any agreement to extend
the time or to giro up the old note, or to take the new note in sstisfsc-
tlon of the old, does not discharge the old note or release an indorMr
tilsreon. Id.
tt. Konci ov KoK-PATHBNT OV Non DiBBoraD TO IvDOBssB at his place of
residence, "Walnut Bottom, near Oarlisle,'* the county town. Walnut
Bottom being a well-known place in the county, is sufficient, althou^
unknown to the holder, there is a post-office much nearer the indorser's
residence than CSarUsle, at which he usually gets his letters, and although
there are other persons in the county of the same name, but not residing
so nesr to Walnut Bottom. Id.
ifl* NonoBTolKDOBSXB IS NOT Invalid bbgafsbGiybnupoitLboalHoudat,
though the indorser would not be bound to act upon the notice until the
day following. DibUeux v. BuUard, 684.
28. GBBTmoATB ov NoTABT IS NOT SviDBNaB OV Pbotibt in Louisiana, unlesi
subscribed by two attesting witnesses. Id,
29. NonoB ov Pbotbst will Bind Bkpbesbntativbs of a deceased indorser,
though the notice was sent to the indorser, where the notice was ad-
dressed to the indoraer's late residence, which was a diffiorent town, and
the notary knew nothing of his death. Planter^ Banh t. fTAite, 906.
80, RbNBWAL ov a NoTB PBBVIOtTSLT GiVBN BT THB SaMB PaBTIEB is UOt S
continuation of a prior obligation, but is a new, separate, and distinct
contract QaUwU t. Planter^ eie, Bank^ 2^6.
Bee AoiNOT, 1; Altsbation ov Instbuxbsts, 1-3; Banks and BAjmBo,
% 3; Bona Fidb Pdbgbasbbs; Gobpobations, 22; Lost NorS; Ko-
TABiBS; Pabtnkbshiv, 4; Patmbnt, 1-^; Pubuo Lands, 6; WAOtBa* 8^
NEWTRLiL.
1. Nbwlt Disootbbbd Evidbnob CoNSTfTuns NO Gbound vob a Nbw
Tbial unless it would be admissible under the pleadings as they eziiUd
Ikbex. 815
prior to the rendition of the jadgment, without farther Mneadment.
Landry v. BmigMm, 606.
S. Kbw Tbial will not bb Gbantxd ajtbb ▲ JiTDOKBBT by dehiilt in an
tetioB to reoover the amount of n debt, althon^ it is ehown that proof
ol payment oonld be made by newly diMo?erad mdtiMe^ if it vggi&um
liiat tiia eridanoe woold not be aHmiiaible without aa aasww wwt fint
lilad in tlM aotion. /d.
8aa JuBT ASD Jubob0» S.
NOLLB FBOSflQUL
8aa Malusoub PBO6B0frfiov« 1, S.
N019-J0INBB&.
(baPlaAoiBo asd FftAnnoBv 1^
KOTABIBS.
HOBABT IS PlBBOWifiLT lOAJUM ffOB NbOLBOT tO OQIIiply wltil tlM kw fk
nootdiqg his protaat and notioe, whereby the indonos ol a note doiir-
end to him for protest were disohaxged. Hydt t. Pkmimnf Bamh^ ML
See KBQonABLB Ibskbuicbbtb, 2i&
NOTIGB.
1. BaooBD or Absoluvb Dbbd n kot NomoB to Obbditobs ol the y antes
subsequently obtaining judgment^ of an agreement not refeired to in tlie
deed, but exeouted between the grantor and gnmtee on the same day and
reoorded at the same time in the same book, that oertain notes gi^en
as seonrity for the purchase money, axe to be ooosidered a lien upon the
premises bk the nature of a mortgage. McLcaidhan v. Jgeeifafe, 196.
Si Abbbbkbht IK Natubb of Mobtgagb Nbbd not bb Bboobdbd nr Mobt-
OAOB Book, it seems, under the Pennsylvania recording aot, but may be
reoorded in the book of deeds, the keeping of separate books being mscely
for the recorder's convenience. Id,
1. KofiOB BT Okb Oomtbactibo Pabtt of TauL ABB Plaob wiisn lie will
proceed to perform the contnuit need not be in writing. Bkikopt v. Me-
Nwry.WL
4» NonoBTO Obb of Two Jonrr OoBT&AonBQ Pabtibs ol the time and plaes
^^isn the other party will proceed to perform tiie ooolraot, is suffloisnt.
Id.
A Dbbd Fqjed fob Bboobd is Dbbmbd to bb Bboobixbd from the tiaw ol its
delivery to the recorder. NkhoU y. BeynoUU^ TS^
4BSS OOBPOBAXIOBS, 19; KbOOTIABLB IvSTBUUBBTSI FABaeBBBSBD'y 1 1^ 7|
FUiAIMarO ABB PBAOnOB, 10; PBB-BMFTIOir» 2( WAflBBB. 7.
NOVATION.
See Nbgotiablb IirsxBimBBTi» 30l
816 Index.
nuisakcb.
8m Isjuvonoaa.
OBDINANCSBEL
(bt OamnuLnomii 8, 9, 1^17.
PABENT AND GHELDi
!• FJlHIBlBlAABUlOmNaaMBABZIBFDBiniHIDBBllnOBSOVCa^Vpo^
Ml flsproH pwmrfiw or npon ptooi d oiraimisfcHMMi froan wMoli ft
wmj be implied. Ami t. Tkompmi^ 588.
SL IvADiQUATB Pfeovmov ST Fazbsb iob Geold's KaoBHmn is not eofll*
dent of iteell to WAmnt the implioetion of » pioniie bj the hAtr to
pfty othen for rapplyhig the defioi«nqy» pertionlarij where the ohild ie
living et home. Id.
i. FAfBn n HOT liEASU lOB Oiomva yuaiimup to 6ov AanoR nunt
Horn oir a Visit, where the eon wae prorided with enfftnient eppenl on
lesving lionie^ bat Ium prolonged his visit until his elothes have beeome
eonsidflrably worn, end some of them onlgrownt there being no evidenoe
thet the prcdonged eheenoe wss at ih» fetber's instsnoe^ or tliet he ex*
pteeily enthorised the additional dotbing to be famished, /d.
tb Pabitt FvBSiSBiso KsosssARfss TO 8os VoLDBXABiLT Asoonr from hb
tether's hoase^ withoat the fether^ ooneent, most look to the eon, andnot
to the lither, for payment, althoogh he is not awsze that tiie son is ah-
eent aguast bis father's will. Id,
fib Is GBismaso Gbxldbbs, Pabbiit hvst bb Gabbhtl not toeBoeed the
boonds of moderation, end infliot oroel end meroileH ponisinBsnti if he
dose so» he is a trespasser. •/oAneofi ▼. iSlktfe, 322.
C WHATXBAsBzoBBorPusiBHMXSTtisaqaestionof faotforthejoiy. Id»
7. CSbabos MAKisa What Cosbtetitus Ezons ot PmaamfssT a l^gsl eon*
ohision, instead of a qnestion of feet, is enoneoos. Id.
8l PuBcnuss OF Lasd st a Fathsb is SOS's Kamb is jpriwoybcieen ad-
vanoement, bat only to the extent of the som aotoally paid hy the fiUiher
jnthoat xegMnd to any snbseqaent rise in the yeloe of the lend. PJW-
ifpe T. Chregg, IBS.
PABTinON.
Wabbastt ot Trlb n Imfubd is Pabtitcos Dbbd between tmanti in
t^ff^r^n tiJdng by desoent in Pennsylvania, end one of saoh tmnnts is
not a oompetent witnem for another in ejeetment theceefter broa|^t hj
the latler to reoover his share of the lend. Pottemon v. LamuHg^ 1Mb
PARTNERSHIP.
1. Bbbyicb of a Gitatios upos Osb Pabxbxb, daring the eodstenoeoftiie
partaexship, is a servioe apon ell. OaiamU v. Aiim*s JEv'r, 604.
IL Sbbtiob of CnATios aftbr Dxbsoltjtios of a partnerships doee not bind the
partners who ore not served peraonally, nor will tiie fiust that the partMr
served had been given a genial power to settie the pertnershipaoooonti,
rendertho eervioe apon him valid es to the others. Id,
S. JUDOKBST AOAXS8T A PaBTSBB WHO WAS SOT PBBB0SAX<L7 SbBVBD with
process in an action brooght sfter dissolution of the partaenhip, is void.
Id.
Index. 817
A, Kon AanoNso bt (his Mbmbeb of a PABnaotsBiP does not paM iaoh
•a interatt in it tiiat the aerignee c«n set it off in » mit on » bill singla
ozoonted by bimaelf to the Msignor, who Msigned it after matantj to tiio
plaintifll If e/nHrs T.'Jfc ^ounn, dOO.
fib Pabxvib Avthobizbd to Sxttlb and Ajdjusx the oopartnonbip affiura,
can not make new oontraota, or create new liabilittea, aa by giving prom-
iaaory notes binding on the firm. Perrin ▼. Keene, 750.
C Fabsbtsb oak not Bxnd thx Fibm areb DnsoLunox by his individnal
act in the partnership name, without express anthority for that purpose.
QaUhU ▼. PkmUt^de, BmUt^ 266.
7* PuBLKUxnur ov Nonas of DnuoLonoir of CoPASxirxBaHiP in a news-
paper is snffieisitt notloe of sooh dissolution, to one taking a pramissory
note upon the faith of the firm's subsequent indorsement. Id,
8l ikifSB DiBBOLDTzos Pabjsnsb oah ROT BnTDFiBM by sn aoknowledgmeiil
of a debty wliether the statute of Undtations has operafted to bar it ornotb
Jf«sf T. JPoarfsDw, 809.
PAWNS.
8se Baxlhxsts, 1.
PAYMENT.
I. Br Taxdio Nbootiabui PBoimnoBT Non fob Dbbt Dub ov Aoooobi;
the debt is, in Maine, oonsidered as paid, and the oontraot extinguished.
The note, in snoh ease, is evidence of a new oontraot, unless the contraiy
iqppearsy and must be a new oanse of action. Newatt t. Hmmeif, 717.
% Pbomimoby Nots Giybv ih SsTTLSiCEirr of an aoooont, is only prima
faek evidenoe of a disohaige, and is open to explanation. Perrin t.
J&e»e,760.
Si Aoqbftascb of a Notb on Aooovbt of a Pbiob Dibt, in prima /aeie a
satisfaction thereof. This result, however, will not f oQow when the note
is lost or destroyed. LauU v Lasdl^ 3S2.
4. BviDXVCs OF Patmsnt of a debt is not admtsslhle unless payBMBi is spe-
cially pleaded. Xofufiy t. Baiiigwmt ^06.
fib Paymsbt bt Onb of Sbybbal Joint Dbbtqbs opiimtss in lafor cf aU.
(MfcT.iM^480.
Bee Countbbfbit Billb, 1, 2.
PENAL STATUn
See OoBFUDOT of Laws, 5; Statute, 4, 7t 1€^ UL
PLEADING AND PBACTIOB.
L OlBJBOfioir that All thbMkmbsbs OF ANUinNOQBPASBDAMOGUiBnr era
not joined in an action on aprondsaoiy note given for its benefit, mnst be
by plea in abatement. Fogg ▼. Virgin^ 161,
8. NoK-Joxin>BB OF A JoDVT PB0MI80R, in sn action of assumpsit^ is only mat-
ter of abatement, and can not be taken advantage of under the general
issue. Naah v. SkUmer, 338.
S. OsM Who would Hold Baihc Lzablb fobPbral Daxaobs, given by statute
for neglect to make payment in spede, on demand or within the time
limited, must distinctly oUim such damages in his dedaiation. Pakmrn
V. York Bank, 710.
Am. Dm. Tol. ZZXVI— «9
818 Index.
C PmtiimATKCTr pf PttrAL Aonoy shoitlp Alijo« that the fiwii ditgrf
agBlntt the form of the stataie npon whidh tiie Mtkn is brnd. Id,
§k Iv PiaADoro CiTimiamF, an ATsmiaDt tluii dolakb&t k ft flttian of tin
■tate b taffioiflat. iStote v. fTorrii, 400.
C l>P»»n)»AllT CAN NOT Avail HlimW.y OF AIT OBJ»0nOHTDTH»l)MfcAEA»l^
la aa aetion of tretpaat to tiy title, after be haa pleaded "not gnflly."
Wa$9 T. J}nM(/bfKi, 427.
7* PUucvKzL Ddbtto Dns oir Bona, where the bond ia ilie glet of tiie
aetfton and the reoorery ia of a eam la maMfD, la bad; otbffwinb wbare
tiie bond ia merely iadaoemeat to the action. Jkuii v. Bmiomt 51L
H PUBA ov Nil Dmr to Dibt ov Shiuii'b Bona ia bad. Id,
9l Owwem. of Bvmmioa iBOiTLa Spboift the poipoie for vlnoh it ia oftead.
Oankaddm r. Paarmanp 14&
IOl QBJBOiiOBr TO FluwF OF SzBViaB OF Nomm leqniied by law ia aa aolion
fbr a penalty for anlawfnUy maixying the plaintm minor cfaUd, thattbe
copy awred waa aot a tnie eqpy beoanee it omitted tbe word ''one" in
the ezpremioa *' twenty-one year^** is too refined. Id.
IL IiintOFiE Admubiok of Rkoobb Ck>FT OF iMBTauxxHT, the originsl of
whioh is in the possession of the party o£foring it» is onied by the sabse-
qnent prodnefeion of the origiaaL Sari r. Qrtgg^ lOOL
ISL BsfUBAL OF DnurDAifT's MonoN fob Lbayb to WnHaaAw Plka of
the statate of limitations, wliere such motion is not made uitU the Jmy
haa been partly sworn, and if granted wonld give the defendant the prir-
ttege of opening the esse, is not an improper ezeroise of the dieoretion of
the ooortb Sanders v. JohMon, 664.
13» SzoLUSiQN OF WnnmsBS fbok Coubt-book d Dksbbiionabt with
the court, and where the defendant, before eramining his witnesses,
moves to ezdnde the phuaturs witaesses, who have aot yet testified,
bat does aot inolnde his owa witnesees, a deaial of snch motion ii not
improper. Id*
14» Imfbopeb SuppBaaaiON of DxPoaxriON n Waived by iatrodaeiag aaotiiflr
depositioa of the same witness containing the ssme testimony. Id.
Vk QuxsnoN OF Fact upok which thbbb is ▲ Spaxx of Eyxdvhgb mnsi
be snbmitted to the jnry. Bank of PUUtmrgh v. Whitehead, 188.
10. iNBTBUonoN to Fiin> A8 nr Caso^ of Nonsuit is in the natore of a demmrer
to eridenoe, whioh admits the evidence, concedes ite troth, and Is predi-
cated apoa it. Bithope v. MeNary, 692.
17. Imooxfstxkot of Witniss fbok Intebist IB NOT Obounp of If-
BSBUcnoN to fiad as ia case of aonsnit, bnt the objection should be tskea
by a distinct motion to exdnde the evidence. Id.
18. Inbtbuction that PaRBOVALTT IS Liable bbvobe Bbaltt in payment of
a charge in each a case does not tend to mislead the jary, and forms no
ground for complaint. ChUhrie t. Otoen, 311.
19. BiFUSAL OF IvsTBUcnoN 80 AxBionousLT WoBDED that it might be wi-
derstood by an nnprofeseional man of ordinary capacity in a sense thst
would make it erroneous, is not assignable as error. Sumner v. Aola^
661.
90. Court Need not Chabob upon Point not Abisino upon the evidenoe,
Harvey v» Thomas, 141.
21. Absence op Instructions not Spegoioallt Pbatxd for is not srm
Ohurchman v. Smiih, 211.
Index. 819
or Op«moN ON thb Stats or Facts by the lower court is not
matter of legal ezcepfci<m. PhUUpa v. KingfUld, 760.
22. OsvzBAL AflsiovMXMT OF Bbbob vf Ghabob or Ck>UBT, withoQt specifying
the particular points in which it is emmeons, will be disregarded*
Carsbadden v. Poarmanf 145.
24b Kkw Gvidkxcr oan xot bb Eeceivkd in Appellate Coubt, it seems^
ever by the consent of the parties. Lane v. Darman, 543.
6m AKBNDKBirrB; Audita Quxbela; Cbbtiobabi; Co2«TDraANOB; Cobpoba-
TI0N8, 8, 20, 27; Costs; Cbiminal Law; Ejictmbmt, 2, 3; BMnniiT
IX>MAiN, 7; Equity, 4; Estoppel; Evidence: Intebpleadeb; Jusncis
OP thb Pbaob; Malioious Pbosboution, 1, 3; New Tbial; Quo Wab-
babto.
PLEDQE.
See BAiLifBiiT8» 1
FBE-EMPnON.
L PlBiOir HAYDTO AOQUIBBD INCHOATE RiOHT OP PbB-BMPTION tO B traot ol
land niidar the act of May 29, 1830, by settlement and oultivationy may,
upon making proof and pajring the purchase money within one year,
oompel a oony^ance by a purchaser therof by virtue of a Vinoennes oer-
tlfioate, under the act of May 11, 1820, who entered and purchased the
land after such inchoate right accrued, but before the pre-emption priee
was paid, and may enjoin such purchaser from recovering the land.
Bruner v. Manlove, 551.
% Opbn and Notobious Possession op Sbttleb on Pubuc Land, under tba
act of May 20, 1830, is notice to all the world of his equitable right of
pre-emption. Id.
%, Validitt op CEBTmoATB OP Pbb-bmption mat bb Impbaobbd in ^jeet-
ment brought by the pre-emptor against a party in possession under the
authority of the United States, by evideuce of fraud and collusion betweeu
the pre-emptor and the officers granting the certificate, the latter know-
faig tba land not to be subject to pre-emption. Jauiimm v. BmMrn^ fi84»
See Pubuc Lands, 1, A.
PREFERENCES.
See AflsiaNifBNT pob Benepit op Cbbuioh^ !•
PRESCRIPTION.
See Adyebse Possession, 4.
PRINCIPAL AND AGENT.
See AoBNOT.
PRIVIES.
CNUBTOB AND QbANTEB ABB PBTVIES IN ESTATE Ooly BS tO mIb dOMi m
soiBBred by the former before conveyance. Bkickmare v. Oft^g^ 17L
See Advbbsb Possession, 0; Common GABuni.
PROBABLE CAUSE.
See Malicious Pboseoution.
820 Index.
FBOGESS.
L Anoummnr of a Sfbcxal Ofhckr to Sxbvs Pboobbb ia * Jodidal aol^
and oia be ezoroiMd aalj by the authority dgning the prooeaa. Rom t.
/WZer, 342.
S. IhEFUTATioN OF AuTHOBXTT TO SxBVB A Wbit Btgned by * jostioe of the
peace in blank, and afterwards filled np by * stranger, ooof era no aatliar»>
ity upon the person therein apparently authorized. Id,
Mk Badical DsnoT in tee ArFOtsrwasn of tee Fbrsov who asnrea a writ^
ia not eared by judgment by default. Id,
Baa AiTMiHmiiTii; Bxioutions; PAsnfXBSSiP, 1-3; P&BADna axd Fftin*
TIGI, 10.
PROMISE OF MABBIAOB.
See Mabbiaob avd Dzvobob.
PBOMISSORT KOTBS.
See KraoTiABLB iNiiiBiTiixsn.
PUBLIC LANDS.
L BMDim AHD BacnavsE havi ko JuBisDionKnr to grtaft tillaa bgr pM-
cmptioD. Ouidrf r. WoodSf 877.
S. OomCIBBIONXB OF THB OSNBRAL LaHI) OmOl HAS AirXBOBXTT, adBC
the supervision of the seoretaiy of the treasury, to detenntoe tlw ooDstruo*
tlon of aota of oongress relative to the publio domain, and if it appear
that the register and receiver have issued » oertifieate of purchase tc
lands the sale or disposal of whioh ia unaathoriiad by law, may vsvoki
or annul it. Id,
Mk Bboobm of THB GurxRAL Land Qffiob and deposition of the ooounii"
skmer are admissible to prove the esnoallation by the oommiariooar ef
tiio oertifioate of entry and purchase issued by tlw regiater and reoelfar
to land not subject to pre-emption. Id,
4k GneTZFiOATB of Pubchasb of Publio Lanss issood by the regiater and
receiver doea not oonstitnte evidence of titles Id,
§k SiTCB Cbbxefioatb IB BvxDXNCB that the applicant waa than in poaeasriflB*
and that he bad cultivated the land in tiio time and maanar leqaind fay
law. Id.
C Salb of LoBOTXicxNTB Ebboxbd ON PuBUO Land of tfao Uaited states
forma a good consideration for a promisaoiy note given lor their prioew
EaleHf V. Bridffer, 688.
7. Ko TiTLB TO OB Lden OB Pbtvilbob UPON THB Lahi> IB tnoafaiied by
or impUed in such sale independent of the rights confefvad by the lawa d
the United Statea. Id.
C Fbnob Built on Govbbnmbnt Land by Mihtakb by an adjoiniqg pio-
prietor becomea part of the freehold, and passes to a snbaaq[aent puxohaaec
of the land, and it is trespass for the party ereoting it to removo ik
Afmoitr V. Watmm^ 666.
See Pbx-bmfhon.
PUIS DARREIN CONTINUANCOL
See Costs.
Index. 821
QUANTUM MERUIT.
L QlTABTinf MmuxT mat bi Bmoovebmd for work dona nador » q^eobl oon-
tnot upon the ntdnioii of the Hune withoat anyliiilt on the part of the
pUintiff. Blood t. Bnos, 383.
& MiASUBB or Damaob8» nr such Gaoi, Ib tboTiIae of the Uborat the prioe
agreed apoiiy Um whftteyer damage the defendant baa aofibred by reaaon
of tiio faflnie to complete the contract. Id,
QUO WABKANTO.
!• Quo Wabkahto, Owztsbshxp or Laitd, how Plbadkd.— Where the own-
enbipof real eatate is by law a prerequisite to the ezeroiae of * £ranobiae»
upon jftto wamuUo, the party ezercising the franchise most in his plea
deacribe the real eatate of which he is owner, and how he has derived
title thereto, and exhibit the deeds and records by which his ownership
is evidenced. State ▼. Hcurrk, 460.
iL Inm.— OwMSBSHiP or Stook, where a prerequiiite to the exercise of a
franchise, must be pleaded, so as to show that the stock was originally
awarded after * compliance with the requirements of law, and if acquired
hj the defendant by transfer, the transfer must be set out; and the title
deeds and records through which the defendant's title thereto has been
aoqnired, must be exhibited, or some l^gal excuse for their non«prodnc-
tion must be made. Id,
%, Inm.— In Pleadino ak Election to tee Owwioe or Dirboiob, by the
stockholders of * corporation, defendant must show that the election was
held agreeably to law and in conformity with and in pursuance of the
ordinanoea and regulations of the governing board of the corporation,
and that at such election he receiyed a majority of the legal votes cast;
if his daim it by virtue of an election by the board of directors, to sup-
ply a vacancy therein, he must show the existence of a board competent
to eleot^ and that a vacancy existed therein, and how such vacancy arose,
and his subsequent election. Id,
4k DmNDANT IN Quo Wabsanto Ksxd onlt Show a Pbdca Fagb Lboal
BiOBT to his enjoyment of the franchise; that if his pleading show an
election by electors acting under color of legal right, it is sufficient; and
that the electors were not possessed of the proper qualifications nmst be
pleaded in avoidance by the state. Id,
(k Writ or Quo Wabbanto is a Wbit Issuable by the state at will and
of right, and is a demand made by it upon an individual, to show by
what right he exercises a franchise, which can not lawfully be exerdsed,
except by virtue of some grant or authority emanating from it. Id,
C On Quo Wabbanto, the Bubden is upon the DsrENDANT of showing such
facts as invest him with a complete legal title to the franchise in question.
Id,
7m Idem.—Upon a Quo Wabbanto to the Pmsipent or a Cobpobation,
requiring him to show his title to that office, he must show the existence
of the corporation, that he is possessed of the qualifications required by
law of the incumbent of the office of president thereof, and that he if
the president. Id,
%, Pbocexdiko bt Quo Wabbanto is a Rsmkdt by which the state may
at pleasure require any citizen exercising a public franchise or au-
822 Index.
thority whioli he oui not leg»Uy ezerciae withoat 0Qnie gnuik or »aAa^
itj from it to show the wamnt nnder which he aoti^ in order thmt there
may be a determination of his legal right. SiaU ▼. Evaau, 468.
IL OmoT AVD Enacx of the Pbockxddio by quo wuraaUo is either to out
the party defendant of the fraaduee, if he faik to show in himself a
eomplete l^gal right to its exennse; or if the franchise has been Icgallf
grsnted, bot has been forfeited by the defendant or those under whom he
daims, then to seise it into the hands of the state. Id,
Ml I]iiif.--WHKBB ▲ PxBSOir 18 Lboallt Entitlbd to thx RiiHwma ov ▲
Fravchibb, he can not by fuo warraiUo be prohibited or restrained from
the doing of any partioolar aet or thing, the right of doing which is
olalmed by virtne of each office or franchise, and oonstitntes only an in-
tegral part of the ri^^ts, powers, sad privileges incident thereto. Thus
a Judge legally elected, can not be prohibited by snoh a proceeding from
tddng oogninnoe of and adjndioating any soit or finwieedintf InstitBted
and pending for adjudication in any ooiut wMohheisaaHiorMed to hoU
amuMudi mmIi ooort nsy not leosl^ possess jiniadiolioB over the
M
RAILBOAD&
Bsa Baumr DoKanr, 8, S, 9; HnawAi^ &
BBOORDDia
See MoHQAaxB, 13; Hono^ % 0w
BEDSMPTIDN.
BBGI8TBBS AMD BBGBIVma
See PuBUO LA2m» 1-A.
Bsa humuauD ahd Tavionps Go-noumnr, % 6^ Mt
BBPSAL.
See ScAiroTB, fi^ 6^ 8^ S.
BEFIiSVIN.
L TfcMPSiwnt Sownra Whbat on Lahd ouur hot IfAimanr Rsiavni
agdnst the tnie owner, who enters into aotnal posssssion and oats the
grsln. Therefore, in replevin brought for ontting grain sofwn by tiie
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
snch entered into possession sad took the crop, and that the plaintiff was
merely a trespasser. EUUoU v. PcweU, 20a
% Trlb to Rbaltt mat be Tbisd Inoioxntallt n Bcnsvur or other
transitory action. Id,
I. MOBTOAOBB OV CHATTEL CAN NOT MAINTAIN BnFLBVXN AOAINn SHNBIff
seizing the same on^. /a, against the mortgagor while in the latter's pos-
session, and threatening to sell in disrefi^tfd of the mortgagee's title.
Index. 823
fiome tortloiii act !■ neoenary to oonrtitate the shariff a tretpaner oft
Mtfo in aooh a oaM» and a mere threat to sell the jiruperty aheolately
b not loiBoient fkgaie v. Clarkaon, 589.
REPUTATION.
See SvzDSNCB, 0, 1&
BBS ABJODICATA.
See JuDOMBim, 1, 2, 4 7; JuanoES or thb Pmagi^ C
RESCISSION OF CONTRACTS.
ii Omtit ov Chahoibt will BisaiiiB Contract vob Pubohau of Lahis
nHiera the vendor lepreaented to the vendee that a field of forty aorea of
iloh bottom huid on an adjoining tract was indnded in the porohase, al-
though snoh vendor had been previoasly infonned by the owner of snoh
traot^ that he had ran oat the line between them with a pocket compaa*
and had ascertained that the field belonged to him. Oamp v. Camp, 42S»
% OomBJLXn fOB thb PBKVOBKAXOB OV WoBK and LaBOB mat BB RBMOUnXBD
by a naked agreement to that effect. Blood v. Eno9f 368.
9k RwfmwToy oy a Cobtbact is a Qpiwion ow Fact for the jury. Id,
4 PiTBOHABiB ov QooiMi WITH Wabrabtt OAK NOT Rrubb the Same and
reoover the price, on broach of the warranty, bat most sae upon his war-
ianty» if the vendor had no knowledge of the nnsoondness, and does not
consent to take the article back, and the contract itself reserves no right
to retom it. K<ue v. Jokn^ 148.
^ BsruBN OT ABinoLB BT PcmcHASBB roB PuBPOBB OF Rbtaib, whers it is
defective, is not effiBOtive for the parpoee of reeciwion, even though tiie
vendor n^leots to repair the article. Id,
See QuABTUM Mbbuit, 1.
RTPARTAN RIGHTS,
See Watsbooubam.
SALES.
L Salb of Pbbsohal Pbopbrtt is Compile, and no sabseqnent formal da-
livery thereof is necessary, where, from the date of the bill of sale, the
property continaed to be on land, or in baildings, in the exdosive poa-
session and control of the vendee. NicKols v. PaUen, 713.
S. Chan » of Possxssion of Pbbson al Pbopsbtt npon a sale thereof is neo-
essary, in order to protect the rights of the vendee. WUaon v. Hooper^
soe.
Mk P088BB8IOK D SuFFioiBNTLY Chakobd upon the sale of a farm with the per>
sonal property thereon, upon which neither of the parties reside, if the
vendee records his deed, enters upon the premises, end assnmes the en-
tuM control thereof. Id,
4. Vbndob Assisting a Vxndkb to Thbbsh Gbain in a bam, being part of
the property conveyed, is not sach a retention of possession as will ren-
der a sale fraudulent and void as to the creditors of the vendor. Id.
ft. Vbndbb who Aocbfts a Consionmbnt of Goods upon whiob thb Priob*
ABB Mabkbd, is presumed to have taken them at the vendor's prices as
824 Index.
marked, or as iteted in an aooompanying invoioe, mden it ahould i^pMt
from a eoatom with which both were aoqaainted, or from the oooiae of
previooa dealing between the parties, that the sendee had a ri^t to r»-
dnoe the prioes aooording to the estimated vahie of the goods at the
nhuM of oonsiffniiisnt. MUekeU t. McBm» 264.
See Aomor, 1, 8; Buuhht^ 2; Co-«BVAiroT, 0» 10| Rwcnwiow of Gov-
SAYINGS BAKK&
See BAincB avd BAxnoHOt t<
8BAL.
SBAL OB SOBAWIi n HOT AviXXID TO SOMB OV flO NilOB of the
obligors in a bond whioh indicates npon its £aoe an intention to seal it,
it will be prpsnmfMJ that those obligors against whose names no soals
i^psar, adopted tiio seals aflbed by the otbers» and all will be boondt
livt the pwaumption may be rebutted by plea and ptooC. DamU ▼. Har-
611.
SSAWOBTHINBSa
See JsmnLAXtam-^MASism, 7, 8,
8EPA&ATB PKOPBBTT.
See Marrhbo Wonv, C
SHERIFFS.
L SHBBiyF n Ripoaaugji fob all OmcLkL Aon ov hd DBrorr, bat not
for neglect of any duty which the law does not reqnirs him officially to
perform. Harrk»gton ▼. FuUer, 719.
% SEIBIFF BlMAXirB LlABLB FOB PBOFBBTT WbOHOFITLLT TAKBir BT HD
Dbputt, and sold, so long as the property in the goods taken or the
money received from their sale remains nnohanged. But when the owner
of the goods soes the depaty for the trespass, reoorers jndgment^ and
takes oat exeoation against him, the property in them becomes changed,
and the deputy no longer holds in his official capacity, bat in his own
absdnte right, and the sheriff is no longer responsible. JUL
See AiTAcnnnNTB; Bzioutxons; Plbadxho ahd Pbioxiob, 8| Bteunmr, 8.
SHERIFFS' DEEDS.
See BxBounoNB, 16, 22.
SHERIFFS' SALES.
See BzBOunoira, 7, 19, 20^ 2L
SHIPPING.
See Bottombt; Iitsubanob— Mabinb; Mobtoaobb, 18; KBOLnmiaip 44L
SLANDER.
1. BvnnNOB, in AonoN fob Slanbeb, of prior reports chazging the plaintiff
with the same crime imputed to him by the defendant, without any offer
to explain their extent or effect upon the plaintiff's character, is load-
Index. 826
alMlblA in ndtlgiKlion of dasuigM under m plan of fmtiiiortfaiL Sanden
V. ^oJMiOfi* 664.
& Rtidbnob ov OnouiimAiraHi GuATiifO Suspxoioir or PLAnrrnv^ Ouxuv
of the oflbnee impoted, bat not proring eooh gaSLt, ia not to be oonsid*
«ed in mitigation of damagea in an notion lor alander for ebniging tho
pimlfitiff with a orinie» to which jnatifiontion ia pleaded, where there ia
no proof of anoh ghving miMondnct by the phuntiff aa to canae the de-
fendant to beUere the ohmge and hia plea of jnatifiontion to be true. I<L
H Dakaobb mvbt n Pax^ablt BxoBSivn nr SLAimn, to warrant aetting
aaida tiio Yordiot, where the eharge ia of an infamooa offenae, and haa
been pabUdy and repeatedly made, and Jnatifloation pleaded with little or
no evidenoe to aapport it. Id,
C WoBPa Kud irot BnKinMgaim.T Dpamatobt in order to be aotionahla.
BeHtleif T. iZ^ynoUi, 2S1.
& FAuaAaBEBinoNsFnoinjonvnoirAonTALDAiiAOStoUiepenonoonoem-
ing whom they are nttered, will enable him to aoatain an action of dan-
der, provided, that the damage of whioh he complaina waa not the reanlt
of any aota of othen, to whom each worda ware apoken, of ao nnlawfol
a ehaiaoter, that an action for relief might haye been anatained againat
anoh peraona themaelTeai Id,
t, AonoH MAT n Matwtatwid io& Faub ahd Mauotoitb AasEBanovB by
iHiioh oreditora of plaintiff were indnoed to canae attaohmenti to be
levied againat hie property, which othenHae might not have been levied,
and it ia not matarial whether the worda ware apokan in relation to aiqr
pr**^^** trade or employment of the plaintiff. Id,
SPECIFIC PERFORMANGB.
See Mabbtbd WoMmr, 8.
8TAKEH0LDBB.
See WAoma, 2, 6-^
STATUTES.
L Q««BALWaBP8IHSTAT0T»MP8TBjMaiVBGaraBAL(>>nafrJMWM^
there be aomething in it to reetrain them. Jomb ▼. Jome§9 728.
% BnxBOflPionvx Ofxbation will not bb Oxybh to Statutb nnleaa tiie in
tention to give it anoh operation ia dearly expreaaed. OHemiai Bcmkr,
fVeeae, 701.
Sb Lboxslatdbb mat Pab8 Lawb that Act Rbibosfbotivblt vHiere they op-
erate apon the remediea afforded by law for the protection of rights of
property, or for the enforcement of the obligation of contraota, not npon
thoae rights and obligations themsdves. Id,
4, Wbbrb Statute Oivxs Pabtt Bight to Bbootbb JtTDOMBiiT nr Katubb ov
Pbnaiat, for a aom larger than is jnstly dne, the right to the amouit that
may be so recovered does not become veeted until after judgment. Id,
A. Aor Pboyidzno vob thb Holduto or Spboial Tbbms of courts for the trial
of criminal canaes, is not repealed by a sabeequent act authorizing such
courts, when unable at the regular terms to dispoae of all the businees
pending therein, to hold special terms to be devoted ezdudvdy to the
dvil and chancery docket. Such acts ore entirdy consistent with each
other, and may both operate together. SuUt v. Hughes^ 411.
826 Index
C AfTKE BspmAX. Of Statute CbHixBsiiro JuBiSDiofnoN on > pTtJenlw tri>
banal in roftd matters, ite oonflnnation of a rknm^ mpart in fovor of a-
road proTiooaly petitioned for ii Toid. North OtmeU SL Boad^ 18S.
7. STATum IN RUiATiON TO THB Bamb Owwwssb moit be taken together and
eonetmed ae if the mattera to whioh they relate were emfacaoed in a tin*
glestatnte. 8UiU ▼. fTilter, 2i5.
tl Bbpxal ov BiPBALoro dTATOTS revivea the original itatate. Cbfltnt t.
0. ExrnuTiON ov Repialiho ScATon bt its Qwv LmizATioir rerivei tiia
■tatate repealed and aapplied. Ilierefore the Pennsylvania aot of Maroh
10, 1810. relating to nninooipoiated banks, waa remed by the expixa-
tkm of the repealing act of llarch 21, 1814^ Id.
10. Statotb Giydto Foubiold Ihtbbist B¥ Wat ov Dakagbb d Pbhal in its
oharaoter; bat where the damagea are given to the party injured, wlio
seeks reoovery of a Jast debt tonHiioh the increased damagea are madsan
inddent, stadi action is not properiy to be rsgaxded as a penal one<
Pakmer v. Torh Bank^ 7ia
ti. Whbbb Statotb Oivbb Pbval Daxaobb to Pabtt Ibjuhbh in a case
where he had before a remedy at oommon law, if he olaim each dam-
ages, he mast do so by a reference to the ststate. /dL
See Gohtuot ov Laws; Cohwitutiohal Law; GonroBAXioBBy &, 6, 18, 14$
Gbdidial Law, 2, 8; BMnrBvr Domaxr, % 6; BviDBirGB, 1, 2; Qamoq^
4
8TATUTB OF FBAUDS.
Pbomibb to Pat Ojtb tob Wobx Pbbvobmbd vob Abotbbb, if sodi oUmt
woold not, ii within the statute of fraads and most be in writing AU
lirM T. /eioeU, 880.
' STATUTE OF LIMITATIONS.
!• Statutb of LncrrATioNB Bbodts to Buk wbev thb Gaubb of Aonoir
AooBUis, not from the time the knowledge of that fact comes to the
pUintiff. Fu v. Fee^ 103.
2. FBAtrDtrLBMT Covgjealmbmt will kot Stop the BcrKNiHa or thb Stat-
itte, thongh the plaintiff ii thereby prevented from knowing that his
oaose of action aoonied; the relief in snch a case would be in equity. Id,
8. Disabilitt Savino Hsir trom Operation op Statute op Locitatxqh»
ii no protection to co-heirs. Moore v. Armstrong , 63.
4. Partt Saved can not Recover his Estate on Joint Demise with those
whose rights are barred; hii recovery must be on a separate demise. Id,
6. Tbrm "Bbtond Seas,*' in the Statute op Limitations, means without
the state. Field v. Diekimon, i58.
See AiyvERSB Possession, 10; Partnership, 8; Pleadeno and PRAonoB, Vt
STOCK.
See Corporations, 17, 23, 24.
STREETS.
See Corporations, 10, 11, 18; Highways, 2, 3.
SUBROGATION.
See Contribution.
Index. 827
SUBSGRIPnOK.
Bm Oovtbaozs; CoBPo&ATiom^ 4, &
SUOGBSSIOK.
See ALnoi8» 1,8.
8X7BBTYSHIP.
» WMP Km^MiMn BT ma Vssbal Abbbiv «o ImnMBva to
the prindpttllorafpeoiflad time, without the goraty's oont^^
BO oonBdentfaMi or mur Moority taken for eooh aant, Brtmagair r.
See OoMnaBonoH.
TAX 8ALE&
L TbVjUbnUXBTAXSykU^LABDKnBrBBPBOPSBLTBHniBBDQBtttdvpli*
cute. P0rkMLm$Bv.DabU,in.
& Tax Ddtuoaxb lasuyfiuiBMr, Whbk.— A tut dnplkate doMribiog tiio
land M befaig in "nnge S, townsliip 18, aeotiom 1, lots 8 and 9 K. patt^
oaohnndredaoNib'' without spooifying the qnaatity of landin eacih lot, ia
Bol aniBolaiit nndHr tiio aot of Vebmary 8, 1886^ and a Ux nla nndHr It
lipoid. Id.
TENANTS IN CX)MMQN.
Sea Oo-TBVAVor.
TBSTAMTtNTABY OUABBIANa
See OUABDIAH AV D Wabix
TRBSPAS& * .
L Ib IkBiPifla AIL ABB LiABLB WHO Pabthoifatb Ib the wiongfal ao^
either by aiding in* or adviaing, or mienting to it. Mom r. JStOer, 8ISL
8. Ibdobsbb ov a NoN'Hbooiiablb Nora n bo* Lxablb Aa a IkaiPAaBB
for tiio eeiaore of property under a void attaohment Imed in a prooeed*
ing brooi^t thereon in hie name as nominAl phuntlA /dL
See Oo-TBBAircr» 8; Rbplbtih, 1» 8.
TROVER.
OWBXB OB LaBB out OB POSSBBSION MAT liAIBTAIB TkOYBB BOB TDCBBB
out thereon by one not in actual poneeaion of the premJeee. Wrigki v.
(Mar, 108.
See Co-tbnanot, 8.
TRUSTEE PROCBS&
See OABBISaMBRT.
TRUSTS.
L PoasnaioN of a Tri78tex is Considbbbd aa that of tiie beneflelagy>
JfiOer Y. Bingham, 58.
S. ADYEBSB PoSSKSaiOH, BETWBSN THX TbUSTBI AND ClflTUIS QUB TBVST, oao
not eziat where the tmst is express. Id,
828 Index.
*
tk Comt OF Law will not RmmrrAiir QuEBnoir ot VALXDirr ov Tsun^
if Ml Mtftte be ooDreyed to * gnx<tee capable of taking the tmst eilataw
ifOet V. ^i9ktr, 61.
See Aanror» 6| Feaudvlbit OoirrKTANcaB, 6; Wills, 0.
USAQK
LooAi* Uaios IvcQimianinr wnu ▲ Ck>iiTEAjOT made at the place whan
wauAk nage prevailii ia not a part of taoh oontiact, and oan not be gtwm
in endenoe to oontradiot or ardd it. Sweei v. «/eaHae, 242.
See iHSViUKcnt— Mabine, 2.
USUEY.
See GoHVLiOT or Lawb^ 7.
VENDOR AKD VENDEK
See Advshi Foflninnoy, 1; Baaanaov ov OxMTBAon,
VENUE.
See GBaitNAL Law, 22. 23.
VERDICT.
Vmuaat ov a Jubt oir Faoxb DisaorLT » lasini in one eeee» ia oondoaiTt
ae to moh futi, in a snbeeqaent oaae between the aame partiea. /mom
T. CZorfc, 872.
See EjaonoDT, 4, 6; EmHSHT Domain, 12; JmraMmSp 7; Jmnr An>
JUBOBS, 4.
WAQEBS.
1. Waobbs upon thb Rbsvlt ov a Pxndino EuunoN are oontcary to pub-
lic policy, and can not be enforced. Jeffrey ▼. FickUn^ 456.
2. Stakxholdxb or Money Waobbbd ufon thb Rbsuia ov an Elbokion
can not pay over the money lawfoliy, in opposition to the order of hia
principal; nor can he refuse to deliver np the wager if demanded before
the determination of the final result of the election. Id.
5. NoTB GivsN voB A BxT ON AN Elbgition IS VoiD. SusseU V. PyUmd, 307.
4. Monet Won UPON A Waobb IS NOT Rboovebablb in Pennsylvania. There-
fore, an action upon a check shown to have been given in pursuance of a
bet, can not be maintained. Edgeil v. McLaughUn^ 214.
6. Monet Paid to the Winner ov Waoeb, the parties being tA part deUcto^
can not be recovered back, unless made recoverable by statute. 8Uu^ v.
Fo», 755.
6. Stakeholdeb ov a Waoeb, whebe the Monet has not been Paid ovcf
to the winner, is liable to the loser, upon notice and demand, for the
amount by him deposited. Id,
7. Notice to a Stakeholdeb bt One ov thb Pabties to a Waoeb, to re-
tain the money deposited in his hands, arrests it, and he may not after-
wards pay over the money to either, whatever the determination of the
event upon which depends the wager. Schaddtford v. Ward, 435.
5. Special Demand on a Stakeholdeb is not Necessabt, before insUtuting
suit to recover the money deposited, if he has informed the depositor th^t
Ikdex. 829
be hM paid over fhe money, which it is aoaght to recover, to the ether
yutj to the wafler, in oppontton to inetmotiQne previmiely given. Id,
SeeGAXiKa
WABKANTY.
Bee OoviKAan» 8^ 4; Ihbobavob— Mabinb, 8; PAM'mojii Rmoimiiom ov
CosTBAora^ 4.
WASTE.
See Co-TXNANOT, 16.
WATEBOOUBSBS.
1. Tb*^«^» Brats d Butiilkd to tidb Allitvxal Aooamoini thel negr
he lonned npon ite front. MuaMpaUiy N<k $ v. OotUm Fru$^ 024.
% Lmislatubb gah not Dxpbivb a Rttaktan Pbopbzkob of hie ri^
to the fatoie ellnvion that may he depoeited npon hie river front. Id,
%, Idim.— CsANOv nr GBABAcraR ov PBomnr ibom Rural to Ubbav,
effected hy ite incorporation aa a city, dcee not deprive it of the rij^t to
fatoie f onned allnvion. Id,
4. Vvacsnaa owtbm BonAirAirD Spaxibb Laws, with reepeot to alluvion,
explained. Id,
A. PBnrcirLB that Oxvib Auitrvzoir to tbx Rtpabiaw FBOPsiaraa upon
whcee front it ii depoeited, ia f onnded npon the conaideration that
hia expoeed aitoation hardening him with the risk of loee thiooj^ the
agency of the river, he ahoold he allowed the henefita which iti oon-
tignity may confer, aa a compenaation. It in no manner dependa npon
the duty of keeping np leveea and embankmenti to guard againat tiie
overflow of the river. To the tame point. Garland, J. /<2.
t. LmBVXRTION ov A PCTBLXO BOAD BBTWXBN A T&AOT AMD A BlVME doee
not prevent the gain by alluvion from belonging to each tract Id,
7. Wbirb a Pdbuo Usb Exists nr thx Bakks ot a Bivsb, the lotnre allu*
vial accretions will be aabject to the same nae; but the right of properly
therein will be veeted in the same pereon in whom is the property in tine
hank; and it aeema that when, by reaeon of the increaee by aocretiona,
any part of the original hank ii no longer needed for the ezeroiae of the
nae, the owners of the right of property therein will also be entitled to
its occapation. Id,
% BiFABTAN OwHx&'a BioBT OV ExoLUSivs PosansioN TO TBB Shobb of a
navigable stream does not extend beyond low-watermark, ^orv^v.
ThomM^ 141.
9. BzPABiAN Peopbirob CAN KOT BB Dbpbivbd OV HIS BiOHT to the nat-
ural flow of a stream by mere use or appropriation by another, except by
grant or by use or occupation for such a length of time that a gnmt will
be presumed. DwA$ v. FuXUrt 334.
10. All Pebsoks have Bight to Tbavxl ov Iob ovbb Pubuo Biveb, and
any one who cuts a hole in the ice, in or near the traveled way on aodi
Ice, ia liable for injnriee sustained by those passing over said way, with«
oat fault or negligence on their part. French v. Camp^ 728L
See Djedigation.
830 Index.
WAYS,
OwiBOonoN Of A Wat bt thb Baionov of a Oatb tbbbbov, whkh
may bo optnod and Ant ot pleasiu^, is not moh aa obttraetioB m will
op«ot0 to oztingalili the daunont's ri^t of way, howwrar long it may
haifo baan oontiiiaod. BanmeU r. Magraik^ 294.
WILLS.
L UBBimUTMB WixA» BOW FAB yALiD.~Whaio » wlll ia fiaidiad with tbo
^gftMwtfoM of the attaatatloD clanao and the clanao ant**Mn*i»>»' an aiaoiitor.
and the dian^tuian laavaa and doea not ratoxn tOl tha nazt day, when
the taatator waa mentally incapable of finiihing it» and fiUa in theao
olanaea himaali, it will bo admitted to probate aa fur aa the panonal^ ia
oononnady it oompriaing within iti aoope all the objeoti of tlw teatator'a
boontyy and the inatmmant ahowing that nothing in the nature of n de-
dnotlon from or oharge upon the baqneata would ha^e been added. OMtk-
Ha T. OwM, 811.
% WhUB L»0A0r» ABI TO BB MaSB FBOM thb BbaL AHD PBBflOBAL PBOF-
BBTT in aodi n oaaa, th^ will be made from the panooaltyaa far aa poa*
Bible, thoogh they wiU fail aa to the nally. Id.
lb Pabhoitlab Ligaot, CoMBianKO of a Sum of Momby, woold, by the
Inwa of Sootland, be oooaidered aa a aimple beqneat of the money, and
not of any heritable property, whiob, if a citiaan of T.n«i«i>»>^ ymgp^ the
logatae, he would not be incapadtated from receiving, and eaoh dtiaen
could reooYor the amonnt of the legacy in tha ooorti of Sootiand, not-
withatanding a deficiency in the petaonal aetata to pay penonal debti or
other preferable beqneeta of the teatator. Didbt o/Bkkmmid r. ifi2iie*«
A't^eia
4 lAOAOTBBQnBATHBDBrAOniiBBOFLoiranABAtoeatabUahnfroeaohool
in hia native town in Scotland, will be paid to tiio pennna aathoriaed to
reoeiTe it, and the entire eatate of the teatator will, if neoeaaaiy, be
charged with ita payment. Id,
§k Lboaot of Mohbt SaoDBBD UPON Bbal Brbatb ii not a heritable bond
within the meaning of that term, aa onderetood nnder the lawa of 8oot>
hmd. Id.
C PABanooLAB LaoAcnr Ck>BiiBXiNO of a DBrxviXB Sum of mcn^ ii entitled
to be aatiafied in preference to all others. Id.
7* Pabxioulab Lioaot is a Ghabob itpon tbb Emtibb BazACB, and if the
heir be admitted before it la diecharged, becomea a peraonal debt, which
he ie required to eactingniah oat of the real aa well aa the peraonal eatate,
and interest thereon mny be collected from the day of demand. Id.
8. Dbvibb OF Lakd TO TBinriBBS AND THBIB SuoonsoBS, the snccesaors to bo
appointed by the court of common pleaa, is void as to the saoceoaora.
MiU» T. FUho', 61.
flL Dkviss to Tbubteis AifBTO tkb Subvxvobs ot aorvivoT of them, to hold as
joint tenants, and not as tenants in common, Tests an eatate for life in
the surrivor. Id,
10. Whbbb Onb has Elicibd to Take Bbnsficzal IicTBBBsr undbb Wiu^
and has received the same, he can not afterwards set np a daim of his
own, which would defeat the operation of the wilL Wtds$ ▼. Patten^ 690w
11. Lands Aoquirsd by Testator after EzBcurioy of his Will do not
pass by a general devise therein. Mectdor v. Sonby^ 432.
Index 831
t2. POWBB XH WUX TO SSLt ALL THl ESTATI CfW TBB TI8TATOB dOM DOt an*
thoriw tfaa exeoator to mU af ter-aoqiiirad landa. Id.
13b Equztablb Eraxi is OoVuufxb bt Sams Buum as Pctbilt Lboal £■>
XAXB, ao' far M the power to pMS after-acqnired lands by will it oon-
See Bomnr, 2i OuABUAir and Wabo, 2, 8; Matoctto Wombt* A.
WTTKESSBS.
L WiFB GW Pabtt Joditlt Iitdiotsd with OraiBS as a Wxnm8.-»Whcve
thxee parties are jointly indicted for an asuanlt and battery, and two el
tbem are granted a separate trial, the wife of the other is n competent
witness in their favor, as her husband has no intsrsst in the event of
their trial MojfU v. BkUt, dOl.
X Bxvusnro to Tssnvr oonoxbhino Mattsbs TsinxDro to OBOOHAn
self, is a privilege whidb a witness may waive. If he waive the
he most submit to n foil croas-eiuunination. CfhamberkUn v. IftZZfoa* 859.
X BTATmrnrr b¥ a Witnibs, uhdbe Oath, tkat Hb can not TBSiiFr with-
oat oriminating himself, is soiBoient proof of the same, mdess the ooort
is satisfied that the witness Is mistaken, or sets in bad faith. Id,
4. WixNBBS Kbbd not Anbwbb a QuBsnoN, when by so doing he will be sac-
poeed to a prooeoatian for a crime, or a penalty. /dL
9. PnxOB dTATBHBNTS OF A WrTNBSS OUT OV Ck>UBT, ABB InABMISBIBLB tO
corroborate hiA testimony. Mtmton v. ffagUnff9, 846.
C QuBsnoNB MAT BB AsKBD UFON CBOsa-BZAMXNAXiON to tsst theaoonHMy
or veracity of n witness. 8te9en9 v. Beaeht 359.
7- WiTNBBS CAN NOT BB IicPBAOHBD BT Sbowino thb Faimst of his tes-
timony concerning facts collateral to the inne. /dL
^ WiTNBBB OAN NOT BB IicPBAomED by proving that he made difibvsnt state-
ments to other persons, nntil after he has been ssked whether or not^ nt
a time and place named, he made each contradictory statements to them.
State V. MarUr, 89&
iL iMPBAomcBNT ov Wit.kbb8.~Pabtioular AoiB OF Immobautt ot otime
can not be testified to for the purpose of impeaching a witness; gansral
character for truth can only be inquired into. PhUUp§ v. KhiQ/lddp 700.
IOl Obnbeal Chabaotbb iob Tbuth mat BB Pbovxd as a fact, and the jury
are then to form their own opinion respecting the witness' ocedibiltty.
M.
11. FoBM OF Intbbbooatobt IK 8C70H Gasb, may be whether, the perMn tes-
tifying knows the general oharacter of the witness, and if so^ wiiat is his
general reputation for truth. Id.
12. Gboss-bxamination is saoa Cask may extend to the opportunity for
knowing the witness* character, for how long and how generally unfavor-
able reports prevailed, and from whom they were heard. Id,
18. To IicnAon a Witness it is not allowable to ask another if he would be-
lieve the witness under oath. Id,
flee Gobfobations, 23, 24; Evidxnox, 3; Fbaubulbnt Oontbtanobs. 6|
Pabiition; Plbading and Pbaotiob, 13, 17.
3 bios Obi Al^ ^AA
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