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■ • : ► •: 



A TREATISE 



ON THS 



LAW OF EVIDENCE 



BY 



SIMON G^EENLEAF, LL.D. 



Qoomim enim aacras legoB tnTentie et saDcita taem, nlai at ex ipsanun JnatitlA nnionlqiid 

Jnsiauintrlbaatar?— MusoABDUS zz Ulpiait. 



VOL. II. 



FOURTEENTH EDITION, 
REVISED, WITH LARGE ADDITIONS, 

BT 

SIMON GREENLEAF CROSWELL. 



BOSTON: 
LITTLE, BROWN, AND COMPANY. 

1883. 



Entered aooordiDg to Act of Congress, in the year 1858^ 

By Jambb Grbbmlbav, 
in the Clerk's Office of the District Court of the District of Massachusetts. 

Entered according to Act of Congress, in the year 1863, 

By Jambs Gbrevleam, 
in the Clerk's Office of the District Court of the District of Massachusetts. 

Entered according to Act of Congress, m the year 1866, 

By Mbs. Jambs Gbbbhlbaf, 

in the Clerk's Office of the District Court of the District of Massachusetts. 

Entered according to Act of Congress, in the year 1876, 

By C. K. FuLLBR AHD C. A. Cboswbll, 
in the Office of the Librarian of Congress, at Washington. 

Entered according to Act of Congress, in the year 1888, 

By C. K. FuLLBR, 
in the Office of the Librarian of Congress, at Washington. 



UlOTBBSITT PBBSS: 

John Wiuov A2n> Sov, CAMBBiDom 



CONTENTS. 



PART IV. 

OP THE EVIDENCB REQUISITE IN CERTAIN PARTICULAR 
ACTIONS AND ISSUES AT COMMON LAW. 

SxcnoN 
Preliminart Observations 1-17 

Abatement 18-27 

Accord and Satisfaction 28-33 

Account 84-39 

Adultery 40-^8 

Agenct 59-68 a 

Arbitration and Award 69-81 

Assault and Battery 82-100 

Assumpsit 101-136 a 

Attorneys 137-149 

Bastardy 150-153 

Bills of Exchange 153 a^207 

Carriers 208-222 a 

Case 223-232 6 

Covenant . 233-247 

Custom and Usage 248-252 

Damages 253-278 

Death 278 a-278 h 

Debt 279-292 

Deed ^ 293-300 

Duress 801-302 

Ejectment 303-337 

Executors and Administrators 338-352 

Heir \ 353-361 

Infancy 362-368 

Insanity • 369-374 

Insurance 875-409 

Libel and Slander 410-429 



IV COKTEKTS. 

Seotiok 
LlHTTATIONS 430-448 

MALiaous Pbosecittion 449-459 

Marriage 460-464 

Nuisance 465-476 

Partkership 477-486 

Patents 487-515 

Payment 516-536 

Prescription.. 537-546 

Real AcnoNS * 547-559 

Replevin 560^70 

Seduction 571-579 

Sheriff 580-599 

Tender 600-611 a 

Trespass .• 612-635 a 

Trover 636-649 

Waste 650-656 

Wat . . . . 657-665 

Wills 666-695 



INDEX TO CASES CITED. 



Abbey v, Lill 
Abbott 17. Mills 

9. Rose 
Abel V. Potts 

Abercrombie v. Parkhurst 
Abithol V, Bristow 
Abney v. Austin 
Abrahams v. Kidney 
Acerro v. Petroni 
Ackerman, Re 

V. Runyon 
Ackland v. Pierce 
Ackworth v. Eempe 
A'Court V. Cross 
Acton V. Blundell 
Adair r. Brimmer 
Adam r. Kerr 
Adams o. Adams 

V. Balch 

V. Cameron 

V. Chaplin 

V. Clark 

V, Drake 

V. Emerson 

V. Field 

V. Freeman 

V. L. & Y. R. R. Co. 

V. Mackenzie 

V. Otterback 

V. Robinson 

9. Waggoner 
Adams £zp. Co. o. Stetaners 
Addington v. Clode 

p. Wilson 
Addison v. Preston 

V. Round 
Addy V. Grix 
Adey o. Bridges 
Adkins p. Columbia L. Ins. Co. 
^tna Ins. Co. v, Miers 



8«etkm 

193 

662 

172 

388 

662 

882, 384 

282, 284 

577 

479 

278/ 

367 

191 

580, 697, 621 

442 

467 

847 a 

296 

52 

685 

831 

677 

208, 637 

518 

616 

674 

98, 616, 627 

221 



392 
251 
141 
86 
216 
545 
689 
279 
644 
677 
685 
409 
405 



V. Tyler 



894, 406, 406 



Aflalo V. Fonrdrinier 
Agg V. Dayies 
A^new o. Contra Costa 
Ahem v. Maguire 
Aiken v. Buck 
Ainslie o. Wilson 
Aitheson v, Broadhead 
Aitkenhead v. Blades 
Akerley v. Haines 
Albin V, Parks 
Albro v. Agawam Canal Co. 
Alchome p. Oomme 
Alcock V. Hopkins 
Alden p. Capen 

p. Dewey 

V. Murdock 

p. Pearson 
Alder p. Sayill 
Alderman p. French 
Alderson p. Clay 

p. Langdale 

p. Waistell 
Aldrich p. Albee 
Alexander p. Bonnin 

p. Brown 

p. Macauley 

p. McGinn 

p. Owen 

p. Southey 

p. Toronto R. Co. 

p. Vane 



192 

363 

222 a 

414, 418 
614 

113, 118 
331 
628 
578 
414 
232 5 

666, 566 
520 
531 

492, 606 
556 

208, 219 
78 

275, 424 

479, 483, 485 

623 

83 

610 

627 

602 

584 

25 

623 

645 

211 

114 



Alexandria (Mayor, &c. 

Patten 
Alfray p. Alfray 
Allaire p. Allaire 
Allam V. Heber 
Allan p. Gomme 
AUcockp. Ewen 
Alloott p. Strong 



of) p. 
629, 532 

462 
677,678 

359 
669, 660 

440 
484, 533 



Allday p. Gt. Western R. Co. 215 
Allegre v. Maryland Ins. Co. 251 

Allen, Ex parte 446 



VI 



INDEX TO CASES CITED. 





Seetkm 


Allen V. Blanchard 


486 


V. Blunt 


268 a 


V. Carter 


615 


V, Collier 


441 


V, Commercial Ins. Co. 


392 


V. Cook 


128 


V. Crary 
V. Dunoas 


560 
518 


V, Edmonson 


. 194 


V. Harris 


31 


V, Harrison 


686 


V. Heam 


286 


V. Hunt 


489 


t;. Hunter 


492 
lS3a 


V. Kemble 


V. King 


520 


V, Lyman 
V. McKeen 


279 


121, 125 


v. Miles 


72 


V. Mille 


448 


0. Ormand 


474 


t;. Poole 


357 


v. IU>sta1n 


483 


v, Watson 


79, 80, 81 


AUentown v. Saeger 


121 



Ailing V. Boston, &c. R. R. Co. 221 

0. Burlock 663 

Allis V. Billings 369 

0. Buckstaff . 500, 501 

V. Moore 430 

V, Nininger 244 

Allison V. Rayner 142 

Allman v. Abrams 452, 453 

Allport 17. Meek 165 

AIna v. Plummer 108 

Alpass V. Watkins 124 

Alsager r. Close 642, 649 

Alsept V. Eyles 599 

Alsleger o. £rb 461 

Alsop V. Commercial Ins. Co. 381 

Alston v. Mechanics' Ins. Co. 396 

Alter's Appal 674 

Alton V. Gilmanton 141 
Ambrose v. Hopwood 180 a 

Amee v. Wilson 261 

Amelie, The 392 

American Contract Co. v. Cross 221 

American £xp. Co. v. Sands 218 

American Ins. Co. v. Dunham 390 

V, Ogden 392 

American S. S. Co. t;. Young 121 

Amery v. Rogers 378 

Ames V. Howard 497 

V, Milward 78 

Amesbury M. Co. r. Amesbnry 111, 

121 

Amiable Nancy, The 253 

Amies t. Stevens 219 



Sootion 

Amory v. Fairbanks 524 

V. Fellows 691 

v. Hamilton 66, 67 

Amsinck v. American Ins. Co. 379 

Amy V. Dubuque 435 

Anderson v. Aiiderson 45 

V. Brock 11 a 

V. Buckton 273 

V. Bullock 296 

V. Coleman 453 

V. Commonwealth 48 

V. Johnson 93 

V. Pitcher 884 

t;. Robson 156 

V, Sanderson 65 

V. Smith 630 

17. Watson 139 

17. Weston 167 

Andre v. Hardin 104 

Andrew i\ Robinson 118 

Andrews v. Appel 242 

p. Askey 253, 577, 579 

17. Bartholomew 274 

17. Boyd 190 

17. Chadboume 161 

17. Gallison 344, 345 

17. Hooper 556 

r. Palmer 79 

17. Vanduzer 425 

Angell 17. McLellan 366 

Angier t7. Schieffelin 297 

17. Taunton, &c. Co. 688, 649 

Angle 17. Northwestern Ins. Co. 160 

Angus V. Bedford 78 

17. Smythies 78 

Anichini i7. Anichini 52 

Annis p. Gilmore 585 

Anonymous 11 &, 12, 53, 65, 88, 117, 

124, 127, 142, 147, 168, 231, 243, 

246, 275, 286, 302, 336, 345, 348, 

350, 360, 404, 420, 424, 431, 435, 

449, 453, 509, 529, 562, 573, 580, 

606, 622, 641, 642, 644. 

Anscomb o. Shore 120 

Anshutz 17. Miller 244 

Anstey r. Dowsing 691 

Anstruther v. Chalmer 671 

Anthony v. Gilbert 272, 625 

17. Harreys 627 

Antram v. Cnase 71 

Appleby v. Brown 85 

v. Clark 115 

Appleton 17. Bancroft 108 

17. Fullerton 657, 659 

Arbouin t7. Anderson 172 

Arbuckle v. Taylor 453 

17. Thompson 212 

r. Ward 539 



INDEX TO CASES CITED. 



VU 



Axcangek) r. Thompson 193» 388, 388 

Arcliew v. Ward 26 

Aiden v. Goodacre 265 

V. Tucker 139 

Argall V. Bryant 433 

Argent v, Darant 625 

Argotsinger v. Vines 635 a 

Armfield v. Tate 367 

Armory v, Delamirie 637 

Arms V, Ashley 118 

Armsby v. Famham 478 

V. Woodward 325 

Armstrong o. Beadle 232 a 

o. Chadwick 190, 197 

V. Christian! 186 

«. Percy 254, 256, 262 

V, Stokes 64 a 

Armsworth v. S. East Bailw. Go. 473 

Arnold o. Camp 523 

V. Lyman 109 

o. Richmond Iron Works 369 

r. Stevens 557 

Arthar r. Dartch 126, 127 

Amndell o. Tregono 452 

Ascherman v, oeat Brewing Co. 642 

Ash V. Marlow 454 

Ashby V. White 225, 254 

Ashhorst v. Grose 31 

Ashley v. Harrison 256, 420 

Ashmead v. Kellogg 640 

Ashmore, Re 676 

V. Penn. S. T. & Trans. Co. 

211, 215, 218 

Aslin V, Parkin 333 

Aspinal v. Wake 164 

Astley t^. Astley 44, 52 

o. Reynolds 121 

V. Weldon 257, 258 

Aston V. Heaven 221 

Astor V. Hoyt 239 

V. Miller 239 

V. Union Ins. Co. 377 

Atherton v. Tilton 482 

AtkiB, Re 147 

Atkins V. Banwell 107, 114 

f7. Boardman 657, 659, 659 a 

V, Boylston, &c. Ins. Co. 382 

V. Sanger 690 

V. Tred^ld 344 

V. Wamngton 278 e 

Atkinson v. Amador 431 

V, Clapp 11 a 

V. Gt. West Ins. Co. 390 

o. Hawdon 523 

o. Laing 478 

9. ScoU 124 

Atlantic, &c. Ins. Co. v. Fitzpatrick 162 

o. Manning 406 



8«odoa 

Atter V. Atkinson 676 

Attorney-Gen. v, Higham 347 

v. ramther 689, 690 

V. Vigor 686 

Attwood t^. Rattenbury 167 

Atwater v. Bodfish 544, 659 

V, Tupper 649 

V. Woolbridge 111, 121 

Atwood V, Cornwall 452 

v. Monger 523 

Anbert v, Walsh 111 

Aaerbach v. N. Y. &c. R. R. Co. 222 

Austen v. Graham 689 

V. WiUward 277 

Austin 17. Debnam 453 

». Drew 405 

V, Gage 361 

v. Hanchett 424 

r. Manchester, &c. R. Co. 215 

V. N. J. St. Co. 222 

V. Remington 418 

o. Rodman 112, 195 

r. Sawyer 614 

V. Taylor 252 

V. Whitlock 296 

o. Wilson 253 

Avarillo v. Rogers 414 

Avery r. Hall 318 

«. Pixley 674, 681 

V, Ray 89, 93, 267 

Aveson v. Lord Einnaird 55 

Awde V. Dixon 172 

Ayer v, Bartlett 640 

V, Hawkins 531 a 

V. Hutchins 115, 199, 200 

Aylet V. Dodd 259 

Ayres r. Gallup 478 

Ayton 0. Bolt 440 



B. 



Babcock v. Bryant 186 

V. Hawkins 31 

V, Montgomery Ins. Co. 405 

V. Thompson 111 

Back V. Stacey 471 

Backman v, Wright 533 

Backmaster v. Smith 649 

Backus V. Backus 53 

V. McCoy 241, 264 

o. Shepherd 190 

Bacon v. Brown 533 

V. Charlton 600 

V, Crandon 79 

V. Page 15 

i;. Towne 452, 453, 454, 455, 457, 

458 



Vlll 



INDEX TO CASES CITED. 



Badger e. Holmes 

V* Phinney 

V. Phoenix Ins. Co. 
Badfifley v. Heald 
Badlam o. Tucker 
Bagnall v. Underwood 
Bagot V, Bagot 
Bagshaw v. Gaward 
Bagwell V. Babe 

V. Elliot 
Bailey v. Appleyard 

v. Bailey 

v. Damon 



616 

867, 869, 561 

406 

136 a 

637 

412, 417 

656 

270 

Id 

672 

544 

669, 672 

. 261a 



Ballingalls v. Gloster 
Ballou V. Famum 
Balston v. Baxter 

V. Bensted 
Baltimore v. Leffeman 



Sootkn 
181 
267 
31 
475 
121 



v. Kalamazoo Pab. Co. 424, 426 

V. Massey 614 

V. Porter 189 

Bailiffs of Tewksburyv. Bricknell 544, 

568 

Baillie v. Lord Inchiquin 441 

Bainbridge v. Pickering 366 

Baird v. Blaigrove 296 

V. Cochran 207 

Bakeman v. Pooler 602 

Baker v. Arnold 207 

V. Atlas Bank 251 

V. Baker 432 

v. Briggs 204 

V, Commonwealth 147 

V, Corey 104 

V. Dening 674 

V, Drake 261, 649 

V. Fales 561 

V, Freeman 61 

V, Garratt 599 

V. Green 254, 584, 599 

V. The Hibemia 219 

17. Howell 120 

V. Kennett 367 

V, MitcheU 445 

V, Morley 55 

V. Portland 232 a 

V, Stackpole 529, 532, 533 

V. To wry 391 

V. Wheeler 276 

Balch V. Onion 161 

Balcomv. Richards 444 

Baldney v. Ritchie 25 

Baldwin v. Barker 688 

V. Cole 642 

V, Elphinston 416 

V, U. S. Tel. Co. 222 a, 261 

w. Western R. R. Corp. 254, 

268 a, 268 b 

Bales V. Wingfield 599 

Ball V. Claflin 11 b 

V, Parker 605 

V. Taylor 296 

Ballard o. Dyson 659 



Baltimore & O. R. R. Co. v. Brady 219 
v. Noell 217, 222, 230 

Baltimore Tampike Case 74 

Bamfield t?. Massey 58, 577 

Bamford v. Tumley 467 

Banbury Peerage Case 152 

Banchor v. Cilley 481 

Bancroft v. Dumas 531, 533 

Bander 27. Snyder 528 

Bangs 17. HaU 440, 443 

Bank of Alexandria t7. Swann 189 
Bank of Brighton v. Russell 431 

Bank of Chillicothe v. Dodge 123 

Bank of Columbia v, Lawrence 186 
V. Patterson 62, 257 

Bank of Commerce v. Union Bk. 164 
Bank of Geneva v, Howlett 187 

Bank of Hartford County v. Wat- 
erman 433 
Bank of Ireland i7. Archer 161 
Bank of Kentucky t7. Am. Exp. Co. 215 
17. Brooking 478 
Bank of Montgomery v. Reese 261 
Bank of Orange v. Brown 214 
Bank of Rochester v, Gould 189 
V. Jones 561 
Bank of Rutland v. Barker 18 
Bank of St. Mary v, St. John 478 
Bank of Syracuse v. Hollister 178 
Bank of Troy r. Hopping 347 
Bank of U. S. v. Bank of Georgia 523, 

601 

17. Cameal 186 

V, Dandridge 62 

t7. Hatch 202 

17. Lyman 118 

V. Sill 156 

Bank of Utica v. Childs 433 

Bankard v. B. & Oh. R. R. Co. 222 a 

Bannatyne i7. Bannatyne 370, 689 

Bannon i7. Angier 665 

Baptist Ch. v. Robbarts 681 

Barber, Re 147 

17. Backhouse 136 

17. Britton 64 a 

V, Fletcher 896 

t7. Root 461 

Barbour t7. Nichols 261 

Barclay v, Bailey 178 

17. Gouch 113 

17. Howell 662 

17. Raine 240 

Baring v. Clark 169, 518, 627 



INDEX TO CASES CITED. 



IX 





Beetlofn 


Bai-ing v. Henkle 


391 


Barker v. Bates 


618, 627 


V. Braham 


621 


V, CasRidy 


435 


V. Hibbard 


865 


V. Miller 


629 


V. Packenbom 


603 


V. Parker 


179 


V. Pbcenix Ins. Co. 


304 


r. Prentiss 


136, 207 


V. Bichardson 


475, 545 


Barkins v. Wilson 


207 


Barlow v. Bishop 


166 


V. Leckie 


877 


V. Mcintosh 


389 


t?. St. Nicholas Nat. Bk. 


242 


V. Todd 


78 


Bamaby v, Bamaby 
Barnard v. Bartholomew 


867 


261 


V. Conger 


261 


V. Graves 


520 


Bamardiston 9. Chapman 


646 


Barnes v. Bartlett 


265 


V, Hatch 


297 


r. Uathome 


467 


V. UoUoway 


114 


V. Hunt 


627 


V. McCrate 


421 


Bamett v. Ward 


414 


Barnewall v. Church 


401 


Barnstable v, Thacher 


618 


Barnum v, Vandusen 


635 a 


Baron v, Abeel 


836, 337 


Barough v. White 


199 


Barr v. Moore 


420 


Barraclough v. Johnson 


662 


Barrett v. Copeland 


585 


V. Deere 


618, 606 


V. Hall 


498, 503 


V, Jermy 


408 


V. Lewis 


536 


V. Third Av, R, R. Co. 


141 


». Union Mut., &c. Co. 


406 


V. Williamson 


251 


Barringer v. N. Y., &c. Ry. Co. 230 


Barrington v. Turner 


630 


Barron 0. Mason 


449, 454 


Barrows ». Carpenter 


414 


Barry v. Carothers 


291a 


V. Cavanagh 


261 


V. Nesham 


481 


V. Rush 


347 


Bartelot 9. Hawker 


51 


Bartholomew c. St. Louis R. R. Co. 221 


Bartlett v. Bramhall 117, 


, 120, 265 


v. Crittenden 


512 


V. Decreet 


649 


V. Emery 


127 



Bartlett v, Walter 

V, West Un. TeL Co. 
Bartley v. Richtmyer 572, 
Barton v. Duffield 

V. Glover 

v. Hanson 

V. St. Louis R. R. Co. 

V, Williams 
Barwell v. Adkins 
Barwick v . Thompson 
Basely o. Clarkson 
Basford v. Allen 
Bass V, Bass 

V. Clive 

V. Dyer 

17. Edwards 
Bassett i;. Sanborn 
Basten v. Butter 
Batchelder v. Sturgis 
Bate V. Hill 
Bateman v. Daniels 

17. Goodyear 

V. Joseph 

». Pinder 
Bates V. Clark 

». Coe 

V. Cooke 

V. Holman 

V. Norcross 

1;. Townley 
Batley v. Catterall 
Batson v, Donovan 
Battennan v. Pierce 
Battey, Re 
Bat tin v. Tag^rt 
Battles V, HolTey 
Battley v. Faulkner 
Batton V. Watson 
Baxter t;. Abbott 

V. Baxter 

V. Earl of Portsmouth 

V. Hozier 

V. Leland 

V. Penniman 

V. Roberts 

V. Taber 

V, Taylor 

». Wales 

V. Winooski Tump. Co. 
Bayley v. Bates . 

17. Bayley 

17. Homan 
Baylis v. Dineley 

V. Lawrence 
Baynham v. Holt 
Bays V. Herring 
Beach v. Miller 

17. Norton 



Sectkm 

379 

222 a 

673, 577 a 

331 

258 

214 

222 

646 

418 

805 

622 

103 

445, 447 

164 

659 a 

658 

104, 518 

136 

28, 242 

68, 577 

28 

253 

195 

440 

276 

487 

73 

682 

430, 557 

126, 128 

173 

220 

136 

186 

490,506 

541 

435 

688 a 

689 

45 

869 

38 

251 

342 

232 & 

589 

663 

629 

468 

594 

669 

31 

867 

411 

126, 128 

458 

242 

26 



INDEX TO CASES CITED. 



Beach v. Vandewater 

V. Wheeler 
Beal V, Nind 

V. Pettit 
Bealey v. Shaw 
Beals V, Peck 
Bean v. Borne 

r. Famam 

V. Mayo 

V, Parker 
Beane v, Yerby 
Bearce v. Jacluon 
Beard v. Beard 

V, Cowman 

V. Kirk 
Beardsley v. Hall 

0. Knight 

V. Maynard 

V. Root 
Beauchatnp v. Parry 
Beaomont r. Greathead 
Beavan v. McDonnell 
Beck Ex parte 

V. Beck 

V, Sa^nt 
Becker o. Dupree 



BMtkm 
483 
453 
443 
880 
471, 475, 546 
186 
529, 531 a 
78, 79, 80 
242 
292 
675 
241 
687 
342 
68 a 
444 
240 
275 
113 
200 
516 
371 
488 
440 
73 

635 a 



V. Western Un. Tel. Co. 222 a 

Beckett v. Dutton 11 d 

Beckford v. Crutwell 209 

V. Montage 584 

Beckman r. McKay 644 

Beckwith v. Shordike 94 

V, St. Croix Man. Co. 183 

V, Sydebotham 401 

Bedford v. Hunt 492, 494, 502 

r. McKowl 579 

Beeby o. Beebv 52, 53, 54 

Beed r. Blandford 124 

Beekman v. Satterlee 431 

Beeler v. Young 365 

Beeman v. Duck 164 

Beers r. Hendrickson 141 

V. Robinson 109 

Beeston v. Colyer 261 a 

Belger v. Dinsmore 216 

Belknap v, Wendell 481 

Bell V. Ansley 380 

0. Bell 397 

V. Buckley 518 

r. Byrne 414 

V. Chaplain 109 

V. Cunningham 66 

V. Fothergill 681 

V. Graham 453 

V. Lycoming F. Ins. Co. 406 

V. Morrison 440 

V. Radcliffe 530 

V, Reed 219 





86etk>n 


Bell V. Rowland 


440 


V. Smith 


393 


Bellinger v. Ford 


339 


V. Kitts 


603 


Bellows V. Murray 


18 


Belshaw v. Bush 


520 


Bemis v. Smith 


214 


BemoB V. Beekman 


563 


Bender v. Fromberger 


264 


Benedict v. Cowden 


172 


Benham v. Bishop 
Benjamin v. De Groot 


367 


437 


Benneson v. Thayer 


523 



Bennett v. AJcott 88, 273, 572, 573 

t*. Appleton 95 

V, Deacon 421 

V. Famell 166 

V, Hyde 269 

V. Jenkins 264 

V. Sharpe 676 

V, Sherrod 681 

V. Smith 460 

Benson v. Frederick 253 

v. Matsdorf 833, 337 

V. Monroe 123 

V. M. & M. Gas Light Co. 261 

w. Olive 278 e 

Bent v. Mink 416 

Benthall v. Judkins 161, 163 

Bentley v. Bentley 346 

V. Fleming 502 

Benton v. Central Ry. Co. 232 a 

V. Sutton 589 

Berdeaux v. Davis 414 

Berkeley v. Wilford 269 

Berkey v. Auman 618, 618 

Berks, &c. Tump. Co. <;. Myers 295 

Berkshire Bank r. Jones 190 

Berkshire Woollen Co. v. Proctor 251 

Bernard v. Commonwealth 599 

v. Torrance 483 

Bemardi v. Motteauz 383 

Berney v. Read 71 

BeroUes v. Ramsay 365 

Berry v. Adamson 451 

V. Heard 640 

V. PuUen 202 

Berryman v. Wise 138, 412 

Berthold v. Goldsmith 482 

Berthon v. Loughman 397 

Bertie v. Beaumont 614 

Besford v. Saunders 367 

Besley i;. Dumas 519 

Bessey v. Olliot 270 

e. Windham 597 

Bessonies t?. Indianapolis 466, 472 

Best v. Strong 111 

Bethell t;. Moore 681 



INDEX TO CASES QTED. 



XI 



Bethlehem v. F. Co. 
Beteer v. Raokin 
Betterbee v. Davis 
BettB V. Betts 

9. Gibbins 

o. Jackson 

9. Norris 
Beran v. Jones 

0. Rees 

V. Waters 
Berin v. Connecticut, &c 
Beynon o. Garratt 
Bibb o. Peyton 

V, Thomas 
Bickerdike v, BoUman 
Biekford v. Page 

V, Skewes 
BickneU v, Dorion 
BiddeU o. Dowse 
Biddlesford v. Onslow 
Biddulph r. Ather 
Bigelow 17. HiUman 

V. Jones 120, 

». Libby 

V. NeweU 
Biggs V. Dwight 

V, Lawrence 
Bilbie o. Lnmley 
Billingharst v. Yickers 
Billings 9. Russell 
Billmeyer v. Wagner 
Bills V.' Vose 
Bilton 0. Lonff 
Bingham v, Alport 

V, Gamault 

V. Rogers 
Binney v. Chapman 
Birch V. Birch 

o. Gibbs 

V, Stephenson 

17. Tebbutt 

r. Wright 
Bird V. Adams 

0. Astock 

V. Holbrook 

V. Randall 

V, Smith 
Birks 9. Trippet 
Birt V. Barlow 

9. Guy 

9. Kershaw 
Birtwhisle 9. Vardill 
Bisbey 9. Shaw 
Bishop 9. Chitty 

9. Clay, &c. Ins. Co. 

9. Crawshay 

9. Eagle 

9. LiUle 



flMtkm 

102,108 
331 

604,605 

45 

115 

688 a, 690 

433 

584 

604 

192 

.Ins. Co. 409 

593 

444 

681 

195 

240 

490 

449 

76,80 

469 

545 

616, 662 

244, 264, 619 

435 

78 

535 

480 

186, 393 
675 
629 
268 
561 
431 
606 
93 
215 
120 
695 
300 
259 
531 
329 
441 

643,648 

473 

29, 231, 257 

241 

76 

130 

442 

207 

149 

426 

523 

377 

638 

36 

448 





Seetkm 


Bishop 9. Pentland 


387, 391 


9. Schneider 


299 


9. ShiUito 


638 


Bissell 9. Erwin 


264 


9. N. Y. Cen. R. R. Co. 


215, 222 


9. Ryan 


252 


Bitner v, Brough 
Bixby 9. Brundige 

9. Franklin Ins. Co. 


261 


449, 457 


378 


9. Whitney 


74, 610 


Blachford v. Dod 


454 


Black 9. Black 


40 


9. Hoyt 


297 


9. Jobling 


681 


9. Lusk 


601 


9. Nichols 


36 


9. Smith 603, 


, 604, 605 


p. Ward 


123 


Blackburn 9. Blackburn 


423 


9. Crawford 


462 


Blackett 9. Lowes 


616 


Blackham 9. Pugh 


421 


Blackham's Case 


338 


Blackhurst v. Cockell 


406 


Blackie v. Hudson 


242 


Blackley 9. Sheldon 


629 


Blackstone Bank v. Uill 


529, 536 



Blackwell 9. Lawrence Co. Justices 264 

9. Smith 414 

Blades r. Higgs 98 

Blagg V, Sturt 417 

Blagget 9. Illsley 512 

Blaisdell v. Gladwin 113, 114 

9. Roberts 616 

Blake 9. Barnard 82 

9. Everett 539 

9. Exchange Ins. Co. 394, 406 



9. Knight 

9. Midland R. R. Co. 

9. Pilford 
Blake's Case 
Blakely 9. Grant 
Blakemore 9. Glamorganshire 

Canal Co. 
Blaker 9. Anscombe 
Blanchard 9. Baker 

9. Blanchard 

9. Bridges 

9. Billiard 

9. Illsley 

9. Sprague 
Bland 9. Adams Exp. Co. 

9. Ansley 
Blaney 9. Bearce 



676 
267 
423 
28 
163 



Blaymire 9. Hayley 
Blight 9. Ashley 
9. Rochester 
Blin 9. Campbell 



434 

640 

544 

440, 444, 678 

475, 476 
190 
572 
489 
219 
598 
239 

573, 574 

603 

557 

85,226 



xu 



INDEX TO CASES CITED. 



BliBS V. Johnson 


fiaetloa 
98 


V, Thompson 
Blizzard v. Ilays 


120 


458 


Blod^ett V. Jackson 


159 


Blood V. Bates 


80 


V. Goodrich 


66 


t;. Harrington 


11a 


V, Wood 


817, 619 


Bloodgood V. Bruen 


440 


Blpomer v, Juhel 


566 


Bloomington v. Heiland 
BIoss 17. Tobey 


141 


417 


Blossom V. Dodd 


216 


V. Hatfield 


857 


Bloxam v. filsee 


490 


V. Hubbard 


649 


t;. Saunders 


638, 640 


Blozsome v. Williams 


638 


Blue V. Leathers 


481 


Bluett V. Middleton 


160 



Blum 17. S.Pullman Palace Car Co. 211 
Blumantle o. Fitchburg R. R. Co. 221 
Bluni v. Little 459 

V. Starkie 114 

Bljth V, Archbold 868 

V. Topham 473 

Board v. Head 635 a 

Boardman v. Merrimack, &c. Ins. 

Co. 408 

V, Roe 121 

V. Sill 648 

Bodley v. Reynolds 276, 049 

Bodwell ». Osgood 275, 417, 420 

V, Swan 275, 418, 424 

Boehm v. Campbell 176 

V, Garcias 181 

Bogart t;. McDonald 11 6 

Bogee r. People 571 

Bogert V, Haight 627 

Bohanon v, Walcot 683 

Bohr t;. Anderson 526 

Boies V. McAllister 275 

Boire v, McGinn 481 

Boldry r. Parris 678 

Bolivar Man. v. Kepon. Man. Co. 539 
Belles V. Beach 316 

Boiling V. Mayor, &c. of Peters- 
burg 539 
Bolton V, Colder 249 

v. Reichard 528 

Bombaugh v. Miller 665 

Bonafous v. Walker 265, 590 

Bonce v. Dubuque St. R. R. Co. 211, 

221, 222 
Bond V. Bond 462 

t;. Douglas 416 

V. Famham 190 

V. Fitzpatrick 199, 200 



Bond t;. Hilton 


Beeticm 

255 


V. Pittaid 




477 


t;. Ward 


585, 


,594 


t;. Warden 




520 


V. White 




26 


Bonnet v. Ramsey 




430 


Bonney v. Seelv 
Boobier t;. Boobier 




113 




642 


Boody V, Boody 




47 


V. McKenney 




367 


Boon V. Morris 




639 


Boorman v. Nash 




261 


Boosey v. Davidson 




515 


Boot V. Cooper 




449 


Booth V. Grove 




158 


». Powers 


160, 


,649 


V. Smith 




30 


Bootle t;. Blundell 




694 


Borgher v. Enapp 
Borgrave ». Winder 
Borland v. M. M. Ins. Co. 




414 




691 




401 


Bom 1?. Pierpont 




528 


Borradaile v. Lowe 




196 


Borrinsale v. Greville 




367 


Borsey r. Wood 




421 


Borthwick v. Carruthers 


862 


,366 


Bosanquet v. Anderson 
». Wray 


159 


, 165 


478 


,531 


Boss t^. Litton 




85 


Bostick V. Rutherford 




455 


Boston V. Lecraw 




662 



Boston Bank v. Chamberlin 367 

Boston Hat Man. v. Messinger 533 

Boston Manuf. Co. o. Fiske 253 
Boston Rolling Mills v. Cambridge 472 
Boston Water-Power Co. v. Gray 78, 81 
Boston & Lowell, &c. Corp. v, 

Salem, &c. R. R. Co. 468 

Boswell V. Osgood 275 

Bosworth V, Sturtevant 624 

Bott 17. Burnell 315 
Boudinot v. Bradford 681, 683 

Boulter v, Clark 85 

Boulting V. Boulting 51 

Boulton V. Bull 498 

Bourdillon t;. Dalton 239 

Bourg V. Bringier 207 

Bourne v. Boston 299 

Boutelle v, Melendy 123 

Bouton 17. Reed 261 

Bovard t;. Wallace • 690 

Bovey's Case 590 

Bovill 17. Wood 133 

Bowditch 17. Mawley 300 

Bowditch Ins. Co. t7. Winslow 406 

Bowe t7. Rogers 420 

Bowen v. Conner 657 

t7. Fridley 533 



INDEX TO CASES CITED. 



XIII 





Seetfon 


Bowen v. Hall 


424 


p. Hope Ins. Ck>. 


383 


V. Newell 


251 


V. Owen 


605 


r. Parry 


95 


V. Kuthei-ford 


483 


V. Shapcott 
V, Stoddard 


27 


251 


Bower r. Hill 


660 


Bowers v, Nixon 


lid 


V. Suffolk Manuf. Co. 


662 


Bowles 17. Bingham 
Bowley v, WalKer 


151 


618 


Bowliu V, Nye 
Bowling V. Harrison 


208, 642 


188 


Bowman v. Wood 


168 


Bowne ». Hyde 
Bowsher v. Galley 


203 


583 


Boyce v. Dorr 


496 


V, People 


571 


Boyd V. Bird 


573 


V. Cleaveland^ 


190 


0. Cook 


678 


V. £k>dson 


66 


p. MoAlpen 


496 


V. Moyle 


lid 


Boydell v. Drammond 


443 


Boyden v. Boyden 


867 


Boyer v. Barr 


253 


V. State 


662 


Boyle V. Brandon 


577 


Boynton v. Page 


563 



V, Peterboro*, &c. R. R. Co. 358 

17. WiUard 621 

Boys V. Ancell 258 

Brabbets v. Chicago, &c. R. R. Co. 232 

Bracegirdle v. Hincks 279 

17. Orford 89, 258, 271 

Brackett o. Norcross 318 

17. Norton 141, 143 

Bradbury p. Benton 268/ 

V. Bridges 183 

V, Grinsell 545 

Bradfieldj;. Tapper 444 

Bradford p. Bryan 78 

p. Drew 251 

p. Levy 388 

p. Manly 124 

Bradish p. Bliss 426 

Bradley p. Gregory 81 

p. Heath 275, 421, 424 

p. Spofford 644 

p. Waterhonse 220, 473 

p. White 481 

p. Windham 593 

Bradlie p. Muyland Ins. Co. 392 

Bradstreet p. Cflark 554 

Bradwell, Re 138 



Saeftton 

Bradwell p. State 138 

Brady p. Began 303 

p. Weeks 478 

Brailsford p. Hodgewerf 186, 199, 200 

Brainard v. Clapp 616 

Brainerd v. Brackett 458 

Braithwaite p. Gardiner 164, 165 

Braley p. Goddard 482 

Branch p. Burnley 418 

Brand p. Boulcott 110 

Brander p. Fei-riday 898, 488 

Brandram p. Wharton 444 

Brandt p. Bowlby 638 

Branger p. Lacy 357 

Brann p. Chicago, &c. R. R. Co. 232 b 

Branscom p. Bridges 226 

Brant p. Wilson 681 

Bray p. Bates 642 

Brayshaw p. Eaton 865, 366 

Brazier p. Bryant 147, 533 

p. Jones 71 

Breadalbane Case 462 

Brearley p. Cox 560 

Breasted p. Farmers', &c. Ins. Co. 409 

Breck p. Blanchard 302 

Brecken p. Smith 126 

Bredin p. Divin. 36 

p. Dubarry 66 

Bredon p. Harman 280, 282 

Bree p. Holbeck 448 

Breed p. Cook 523 

p. Hurd 602, 603 

V. Judd 865 

V. Pratt 690 

Brembridge p. Osborne 527 

Bremner p. Williams 221 

Brennan p. Carpenter 623 

p. Fair Haven, &c. R. R. Co. 230 

Brent p. Erving 156 

Brest p. Lever 626 

Brested p. Farmers', &c. Ins. Co. 409 

Bretherton p. Wood 209, 214, 228 

Brewer p. Bowen 464 

p. Dew 253 

p. Dyer 110 

p. Knapp 534 

p. Sparrow 642 

Brewster p. Burnett 124 

p. McCall 686 

Brice p. Hamilton 531 a 

p. Randall 658 

BrickeU p. Bell 519 

Bridge p. G. June. R. R. Co. 232 a, 267 

p. Wain 262 

p. Yates 686 

Bridges p. Blanchard 475 

p. Hawkes worth 618 

p. Mitchell 447 



XIV 



INDEX TO OASES CITED. 



BMlkm 

Bridges V, North Lon. By. Co. 222 

V. Smith 565 

Briggs V. Boyd 121 

V. Cooper 426 

p. Green 585 

V. Mason 625 

V. Morse 242 

V, Richmond 624 

V. Smith 78 

t;. Taylor 24 

V. Wilkinson 289 

Brigham r. Dana 482 

V. Foster 139 

Bright V. Boyd 549 

V. Wilson 651 

Brigstocke v. Smith 442 

Brimmer p. Lone Wharf Propr's 555 

Brinckerhoof v, Remsen 675 

Brine v, Featherstone 896 

BriDley v. National Ins. Co. 407 

Brisco p. Brisco 52 

Bristol V. Burt 642 

p. Carroll County 557 

Bristol & Ex. By. Co. u. Collins 210 

Bristow p. Eastman 868 

p. Heywood 451, 452, 458 

British Museum p. Finnis 662, 664 

Brittain p. Lloyd 113 

Britton p. Cole 629 

p. Turner 186 a 

Broad p. Ham 454 

Brock p. Copeland 478 

p. Gale 268 b 

Brockelbank p. Sugrue 877 

Brockwav p. Buma}) 481 , 560 

BrodericK p. Broderick 678 

Brodie p. Ophir, &c. Co. 487 

Brograve p. Winder 691 

Bromage p. Lloyd 168 

p. y aughan 186, 189 

Bromfield p. Jones 584, 589 

p. Smith 281 a 

Bromley p. Coxwell 642 

p. Frazier 176 

p. Wallace 52, 56 

Brommage p. Lloyd 163 

p. Prosser 419 

Brook, Re 78 

p. Bishop 229 

p. Briggs 805 

p. Carpenter 452 

p. Willett 568 

Brooke p. Pickwick 221 

p. Railway 222 

Brookes p. Warwick 453 

Brooklyn, Re 662 

Brooks p. Barrett 689, 690 

p. Blanshard 414 



Brooks p. Bondsey 

p. Uovt 

p. Hubbard 

p. Jenkins 

p. White 
Broom p. Davis 
Brothers p. Carter 
Brotherston p. Barber 
Broughton p. Whallon 



8«etkm 

239 

270,599 

259 

501a 

28 

136 

232 6 
392 
621 



Brown p. Adams Exp. Co. 215, 219 

p. Allen 277 

p. Anderson 842, 446 

p. Aunandale 502 

p. Barnes 418, 420 

p. Bellows 78, 258 

p. Bissett 597 

p. Brashford 361 

p. Brown 46 

p. Bums 532 a, 533 
p. Carolina Central R. R. Co. 470 

V. Cayuga, &c. R. R. 472 

p. Chapman 449 

p. Clay, &c. Ins. Co. 406 

p. Collins 85 

p. Crandall 483 

p. Cummings 256 

p. Dean 565 

p. De Selding 675 

p. De Winton 160 

p. Duchesne 496 

p. Dysinger 305 
p. Eastern Raiboad Co. 215, 216 

p. Edes 440 

p. Feeter 526 

p. Galloway 334 

p. Gay 430, 475, 557 

p. Gilmore 261, 603, 605 

p. Gooden 527 

p. Gordon 95, 98 

p. Hartford F. Ins. Co. 367 

p. Hodgson 114 

p. Howard 97, 433, 448 

p. Jackson 249, 523 

p. Jodrell 369 

p. Kendall 94 

p. Leavitt 79 

p. Mallett 219 

p. Manning 662 

p. Maxwell 232 b 

V, Minns 412 

p. Moore 688 

p. People's Mut. Ins. Co. 408 

p. Rains 483 

p. Randall 455 

p. St. Nicholas Ins. Co. 387 

p. Saul 601 

p. Sayce 664 

p. Simons 603 



INDEX TO CASES CITED. 



XV 



Section 

22 

253 

79 

659 a 

345 

618, 619 

520 

845 

339, 672 

404 

429 

569 

637 

579 

30 

585 

195 

614 

625, 659 

528 

556 

414 

405 

483 

424 

659 

684 

557 

65 

210 

637, 640, 646 

249 

163, 166 

662 

396 

230 

207 

518 

642 

147 

. , 674 

Brydges v. Dachess of Chandos 686 

V, Plamptre 442 

r. Walford 588, 593 

BuchaDan v. Goenig 621 

V. Pamshaw 262 

V, Port 280, 291 a 

Back 0. Cotton 195 

V. Spofford 78 

Backingham v. Smith 440 

Buckland v. Adams Exp. Co. 216 

17. Conway 141 

V, Johnson 649 

Buckle r. Bewea 596 

Buckles V, EUers 571 

Buckley v. Buckley 359 

V. New York, &c. R. R. Co. 230 

V. Nightingale 356 



Brown v. State 

p. Swineford 

V. Tanner 

V. Thissell 

». Walter 

V' Ware 

V. Watts 

0. Whitmore 

r. Wood 
Browne v. KniU 

V, Murray 

V. Powell 
Brownell v. Manchester 

V, McEwen 
Browning v. Crouse 

V. Hanford 

0. Kinnear 

V. Skillman 
Brownlow v. Tomlinson 
Brubaker v. Taylor 
Bruce v, Mitchell 

p. Soule 
Brugger v. State, &c. Ins. Co. 
Brugman r. McGuire 
Bmnson v. I^de 
Brunton v. Hall 
Brush V, Wilkins 
Bryan v, Atwater 

V, Jackson 

p. Paducah R. R. Co. 
Bryant v. Clifford 

V. Com'th Ins. Co. 

p. Eastman 

p. McCandless 

p. Ocean Ins. Co. 

p. Rich 

p. Ritterbush 

p. Smith 

p. Ware 
Bryant's Case 
Bryce, Re 



Buckley p. Pirk 

p. Saze 
Buckman p. Thompson 
Buckmaster p. Grundy 

p. Smith 
Buddington p. Shearer 
Buford p. M'Lung 
Buhl p. Trowbridge 
Bulkeley p. Butler 
Bulkley p. Buffinton 

p. Keteltas 

p. Smith 
BuU r. Liney 

BuUard p. ifantucket Bank 
Bullen p. M'GUlicuddy 
Buller p. Fisher 



Bfotlcm 

239 
527 
437 
264 
649 
277 
424 
160 
158 
297 
454 
454 
645 
11a 
30 
219 



Bullet p. Bank of Pennsylvania 156 

BuUis p. Giddens 280 

Bullock p. Dean 432 

p. Dommitt 245 a 

p. Lloyd 170 

Bullythorpe p. Turner 562 

Bulson p. Lohnes 74 

Bunce p. Bidwell 557 

Bundy p. Buzzell 190 

p. McKnight 676, 688 

p. Ridenour 242 

Bunker p. Shed 431 

Burbige v. Jakes 209 

Burchell p. Homsby 655 

Burden p. Halton 520 

Burden p. Webb 115 

Burdick v. Green 431 

Burditt p. Hunt 642 

Burges p. Ashton 411 

Burgess v. Burgess 41, 45, 46 

p. Carpenter 224 

p. Cuthil 208 

V. Gray 232 a 

p. Merrill 24, 133 

Burghardt r. Turner 71 

Burghart p. Angerstein 363, 365, 

366 

p. Gardner 139 

p. Hall 366 

Burgoyne p. Showier 677, 681 

Burguee p. De Tastet 484 

Burk V, Hill 242 

Burke p. Melvin 93 

p. Savage 637 

p. Stowell 441 

Burkbolder v. Carad 297 

Burley p. Bethune 453 

p. Russell 364 

Burling p. Paterson 295 

Burlin^me p. Burlingame 457 

p. Foster 193 

Bum p. Boulton 444 



XVI 



INDEX TO CASES QTED. 



Section 

Bum V, Miller 104 

V. Morris 639 

Burnett v. Simpkins 267, 275 

Burnham v. Allen 172 

». Gr. J. R. R. Co. 222 

V. Strafford Sayings Bk. 11 a 

Burr V. Burr 54 

V. Smith 518 

Burrage v. Smith 244 

BurreU v, Lithgow 599 



r. N. Y. Cent. R. R. Co. 
V. North 



Burridge v, Fogg 
Burrough &. Moss 



210 

212 

556 

171, 200 

Burroughes o. Bayne 644 

Burroughs v, N. & W. B. R. Co. 210 

Burrows v, Heysham 11 a 

Burson v. Edwards 418, 420 

V. Huntington 172 

Burt V. Palmer 65 

V, People's Mut. Ins. Co. 406 

r. Place 111, 467 

Burtenshaw v. Gilbert 682 

Burton v. Burton 646 

V, Driggs 120 

V. Hughes 637 

V. Le Roy 296 

r. Payne 158 

V. Stevens 440 

V. Stewart 136 

Busenius v. Coffee 803 

Bush 0. Canfield 261 

V. Fox 493 

V, Parker 98 

0. Prosser 418» 425 

V. Sheldon 672 

V. Steinman 282 a, 232 b 

Bushby v, Dixon 859, 360 

Bushefl V. Passmore 300 

Bushwood V. Pond 544, 568 

Bussell V. Salisbury Man. Co. 230 b 

Bussy V, Donaldson 253 

Butcher p. Carlile 279 

V. London & S. W. R. 221 

Butler V. American Toy Co. 112 

V, Basing 213 

V. Gale 242 

V. Heane 216 

V. Hildreth 369 

V, Mun-ay 392 

Buttemere o. Hayes 282 

Butterfield v. Forrester 232 a, 267, 

473 

V. Harrell 11 6 

r. Windle 284 

Butterworth v. Lord Despencer 404 

Button t;. Hayward 423 

Butts V, Dean 520 



Byam v. Bullard 
Bye V. Bower 
Byers v. McClanahan 
Byne t;. Moore 
Byrket v. Monahan 
Byrne v. Cal. Sta^ Co. 
o. Crowninshield 



SMuOII 

496 
11 « 
296, 297 
455 
418 
222 
439 



C. 



C. & C. R. R. Co. V. Bartram 222 

Cabiness v. Martin 454 

Cabot V. Haskins 109 

Cabot Bank v. Morton 164 
p. Russell 188, 193 

Caddy v. Barlow 453 

C adman v. Lubbock 604 

Cadogan v. Cadogan 41 

Caheu v. Piatt 261 

Cahill r. Eastman 467 

Caine v. Coulton 526 
Cairnes p. Bleecker 66, 642 

Cake p. Lebanon Bank 520 
Caldwell p. Wentworth 532 a, 533 

Calef p. Thomas 454 

Calhoun p. Vechio 603 

Calkins p. Whistler 172 

Call p. Buttrick 465 

p. Hagger 589 

p. LoUirop 606 

Callan p. Gavlord 416 

Calloway p. Middleton 424 

Calumet, &c. Co. p. Russel 299 

Calvart p. Horsfall 334 

Cambridge p. Anderton Ry. 892 

p. Hobart 440 

Camden p. Anderson 378 

p. West. Un. Tel. Co. 222 a 
Camden & Amboy R. R p. Bal- 

dauf 216 

p. Burke 215, 218, 221 

p. Forsyth 210 

Camelo p. Britten 389 

Cameron p. Smith 437 

p. Stote 49 

Camp p. Camp 297, 305 

p. Ganley 634 

Campbell p. Arnold 616 

p. Gordon 19 

p. Hastings 483 

p. HewUtt 251 

p. Jones 235 

p. Eincaid 141 

p. Lewis 240 

p. Morse 219 

p. Pettengill 195 



INDEX TO CASES CITED. 



XVll 



Campbell v, Phelps 68, 580 

17. Proctor 615 

V. Race 627 

V. Sherman 584 

9. SUkes 368 

V. United States 338, 431 

V. Webster 184, 190 

V. Wilson 475, 545 

Campbell's Case 347 

Campion t;. Beutlej 

Can o. Reed 

Canada v. Canada 
V. Southwick 

Canada's Appeal 

Canal Bank v. Bank of Albany 

Canfield v. Ives 

Canham v. Fisk 

Canly v. Blue 

Canning v. Williamstown 

Cannon v. Boyd 

Canot V. Huenes 

Cape Ann Nat. Bank v. Bums 

Capen v. Barrows 

V. Washington Ins. Co. 
V. Woodrow 

Capers v. Wilson 

Capp o. Tonham 

Capron v. Balmond 

Card V. Case 

Cai*dinal v. Smith 

Carey v. Baughm 

Carey's Appeal 

Car^ill p. Taylor 

Carfey v, Vance 

Carlton v. Lndlow Woollen Mill 440, 

483 

Carman o. Beam 

Carmarthen, Mayor, &o. of, 
Lewis 

Carnegie v. Morrison 
V. Waugh 

Carney v. Self. & No. Co. R. R. 
Co. 

Carpenter v, Bailey 
V. Carpenter 
V. Coin 
V. Gookin 

9. Northboro' Nat. Bank 
V. Pridgen 

V. Prov. Wash. Ins. Co. 
V, Shelden 
V. Smith 
V. Wahl 

Carpue V. London, &c. R. R. Co. 



351 
518 
104 
585 
675 
164 
519 
545 
316 
267 
659 a 
645 
160 

480,481 
400 
431 
658 
115 
579 

280, 231 
455 

675, 681 
670 
589 
180 6, 600 



V, 



833 

lid 
109 
109 



Carr v. Clarke 
9. Dooley 
9. Foster 

YOU IL 



232 ft 
426 
367 
629,531a 
116 
122 
368 
406 
454 
502 
577 
222, 
230 
573 
242 
250,545 



Carr v. Lancashire & Y. 
Co. 

V. Hilton 

V. Gale 
Carr v. Miner 
Carriugton v, Comock 

V. Roots 

t7. Taylor 
Carrol v. Upton 
Carroll v. Norwood 

v. St. Island R. R. Co. 

Carruthers v. Grav 
Carshore v. Huyck 
Carson r. Edffeworth 
Carter v. Anm^ws 

V. Bailey 

r. Carter 

o. Johnson 

V, Robinett 

V. Smith 

V. Talcott 

t^ Thomas 
Cartland v. Morrison 
Cartwright v. Cartwright 

r. Cooke 
Caruth v. Allen 
Carver v. Miller 
Carvick v, Vickery 
Cary t;. Bancroft 

V. Gerish 

V. Stephenson 
Case V, Barber 

V. Boughton 

r. Carroll 

V. Case 

V. Hartford lus. Co. 

o. John 

v. Marks 

V, Roberts 
Cash 9. Giles 
Cass v. Cameron 

t;. New Orleans Times 
Cassel V. Western Co. 
Cassell, Re 

V, Cooke 
Casseres v. Bell 
Cassiday v. McKenzie 
Cassidy o. Angell 
Cassin u. Marshall 
Casson v. Dade 
Castner v. Walrod 
Castrique v. Bemabo 
Castro V, Bennett 

V. Richardson 
Caswell V. Coare 

0. Wendell 
Gates V, Bowker 



R. 



Seotion 

R. 



215 
448 
645 
607 
278 a 
627 
254 
186 
317 

111. 
232 a 
388 
440 
453 
417 

34 
666 
625 
331 
174 
141 
686 
638 
689 

31 
626 
651 
159 
601 
112 
435 

31 
624 
149 
464 
404 
136 
420, 424 
119 
124 
590 
420 
561, 563 

73 
116 

19 
68 a, 618 
230 
599 
678 
430,437 
187 
142 
310 
262 
264 
413 



XVlll 



INDEX TO CASES CITED. 



HAOviOD 

Catherwood o. Caalon 50, 4til 

V. Chabaud 341 

Catlin r. Springfield F. Ins. Co. 405 

Cator V. Stokes 687 

Catskill Bank t^. Gray 481 

Catteral v. Catteral 460 

V. KeDjon 645 

r. Sweetman 4(i0 

Catteris v, Cowper 61b 

Cattlin V. Hills 232 a 

Caunce v. Spanton 644 

Gaunt V. Thompson 186, 190 a, 

291 

Cave 0. Holford 686 

Cavendish ». 80 

Caverly v. McOwen 143 

Cavey v. Ledbitter 467 

Cawdor v. Lewis 337 

Cayford's Case 49, 461 

Cayaga Co. Bank o. Hnnt 178 

V, Warden 189 

Ceames v. Irving 35 

Cecil V, Clarke 454, 458 

Central Bank v, Davis 190 
Central Branch, &c. Ry. Co. v, 

Hotham 230 

Ch. & A. R. R. Co. 17. Pondrom 222 

Ch., B. & Q. R. R. Co. t;. Dickson 68 

Ch., &c. R. R. Co. r. Fahey 210 

Chad wick v. Trower 466 

Chaffee v. Franklin 119 

Chalmers v. Shackell 426 

Chamberlain v. Cuyler 445 

V. Hazlewood 226, 571 

t;. Shaw 644, 649 

V, Vance 418, 424 

Chamberlyn v, Delarive 523 

Chambers v. Caulfield 51 

t;. Games 292 

V. Robinson 418, 449, 453 

Champion v. Terry 156 

Champlin ». Tilley 838, 483 

Chancellor v. Schott 532 a 

Chandler v. Morton 830 

V. Parks 133 

V. Sanger 121 

V. Temple 297 

V, Thompson 471 

V. Worces. Ins. Co. 405, 408 

Chapel r. Bull 241, 242, 264, 297 

V. Hickes 136, 143 

Chapin v. Norton 256 

Chapman v. Annett 195 

V. Davis 838 

r. KimbaU 236, 242 

©. PickersgiU 449 

V. Republic L. Ins. Co. 409 

V. Rose 172 



Saetkm 

Chapman V. Sutton lid 

Chappel V, Lee 359 

Chappie r. Cooper 365 

Chard v. Fox 186 
Charles River Bridge v. Warren 

Bridge 4 
Chariest. & Col. Boat Co. «. Bar 

son 387 

Chamley v. Wistanley 79 

Charrington o. Laing 258 

o. Milner 207 

Charters v. Bayntum 365 

Chase v. Box 529 

v. Corcoran 627 

0. Dwinel 111, 121 

V. Eagle Ins. Co. 403 

t». Irvm 331 

V. Keyes 599 

t;. Lincoln 692 

V, Silverstone 280 b 

V, Stevens 484 

V. Weston 240 

Chasemore v. Richards 230 b 

Chaters r. Bell 166 

Chatham v. Bradford 299 

Chatterton v. Saul 560 

Chaunoey v. Yeaton 108 

Cheap t;. Harley 122 

Cheasley v, Barnes 597, 629 

Cheek v. Roper 181 

Cheetham v. Hampson 472 

Cheever v. Lamar 481 

V, Mirrick 141 

V, Pearson 627 

r. Perley 440, 528 

Cheminant v, Thornton 605 

Chesapeake Ins. Co. v. Stark 393 

Cheseldine t;. Brewer 460 

Chesire v. Barrett 367 

Chesmer v. Noyes 183 

Chess V. Chess 297 

Chestnut v. Chestnut 40 

Chicago V. McGraw 618 

V. Tilly 104 

Chicago & Al. R. R. Co. v. Erick- 

son 222 a 

V. Mahoney 232 b 

V. Murphy 232 b 

V, Pondiom 222 

Chicago & N. W. R. R. Co. t?. 

Donahue 232 a 

o. Hoag 539 a 

V, Scates 222, 230 

Chicago & R. L R. R. Co. v. Fahey 210 

V. Henry 232 b 

V. Warren 219 

Chicago, B. & Q. R. R. Co. v. 

Abend 232 b 



Iia>EX TO OA£BS OITEDr 



XIX 



Beetioii 

Chicago, B.& Q. R. R. Co. v.Har- 

wood 232 a 

0. Lewis 295 
Chicago City Ry. Co. v. Fieemaa 2ao, 

^ ^ ^ 232a 

Chichester v. PhiUips 839 

Chick V. Pilsbury 187 

Chioopee Bank v. Chapin 199 

17. Eager 188, 251 

Chievly v. Bond 447 

Child ». Homer 275 

t;. Hordon 75 

r. Morley 114 

Chilton ». WhifBn 170 

Chinmark's Estate 681 

Chinn r. Morris 93, 267 
Chippendale t>. Lane, &c. Railw. 215 

Chirac v. Reinicker 333 

Chisman v. Count 126 

Chitty V. Naish 533 
Cholmondeley (Earl of) o. Lord 

Clinton 140 
Chouteau v. Steamboat St. An- 
thony 212 
Chouteanx r. Leech 64 a 
Christenson v. Am. Exp. Co. 215 
Christian v. Coombe 385 
Christie v, Cowell 423 

9. Griggs 221, 222 

Christopher v, Christopher 685 

Christophers r. Sparke 628 

Christy v. Flemington 440 

V. Reynolds 136 

V. St. Louis 121 

Chubb V. Flannagan 415 

V. Gsell 258, 419, 424 

V. Westley 418 

Church r. Clark 180 h 

V. Crocker 684 

Churchill v. Perkins 115 

V. Speight 295 

V, Watson 253, 271 

Churchman v. Smith 481 

Churchward v. Studdy 620 

Cilley V. Cilley 675 

». Tenny 85 

Cincinnati v. Brachman 242 

0. White 662 
Cincinnati Gazette Co. v. Timber^ 

lake 421 
Cincinnati, L. & C. R. R. Co. v. 

Ducharme 230 

Ciooci V. Ciocci 44 

Citizens' Ins. Co. v, March 405 

City Bank v. Cutter 190, 607 

Claflin V. Robinhorst 316 

Clancy o. Houdlette 618 

Clap, Re 520, 523 



Clapham v, Higham 

Clapp V. Clapp 
V. Hale 

Clare v. Maynard 

Clark V. Alexander 
V. Baker 
v. Barnwell 
V. Bernstein 
V. Bigelow 
t;. Bogardus 
t;. Burdett 
o. Bum 
V. Burt 
V. Clark 
V. Cochran 
0, Courser 
V. Cummings 
V. Dales 
V. Dinsmore 
t7. Drajwr 
v. Eldridgp 
w. Foxcroit 
V, Gilbert 
r. Gray 
V. Holmes 
V, Ilougham 
V. Mann 



Section 

79 

52 
444 
202 
441 
63, 251 
220 
519 
183 
524 
534 
444 

78 
460 
660 
141 
656 
261 
80,31 
640 
189 
113, 585, 593, 597 

104 
209 

25 

338, 448 

291a 



V. Manuf. Ins. Co. 396 
V. Marsiglia 261, 261 a 

V, Metropolitan Bank 64 a 
V. New Eng., &c. Ins. Co. 405, 406 

V. Newsam 253 

V. Pease 172, 301 

r. Pinney 261, 519 

17. Ray 297 

V. Skinner 560 

V, Smith 103, 104 

t;. Spence 213 

t;. Swift 240 

V. United States 111 

V. Webb 126 

V. Whitaker 642, 649 

». Wilder 26 

V. Wright 688 a 

Clarke v. Clarke 642, 643, 648 

V. Davies 564 

V. Dutcher 441 

V, Gray 404 

V. Leslie 365 

V, May 584 

17. McAnulty 244 

t7. Morey 19 

V. Needles 212 

17. Scripps 681 

r. Spence 638 

Clarkson v. Carter 486 

17. Crummell 629 

Classon v. Staple 456 



Clay V. Langsbw 

V, WiUan 
Clayards v. Dethick 
Claytoa p. Blackey 
V, Corby 
V. Hunt 
17. Kynaston 
V, Stone 
f. Wardell 
Clayton's Case 
Cleave o. Jones 
Clegg V. Fields 



Beetkm 
484 
220 
232 a 
829 
250, 544, 6G0 
216 
281 
514 
460, 462 
529, 532, 533 
440 
331 
ClegBorn ». N. Y. Cent. R. R. Co. 253 
Clem V. Holmes 573 

Clemence v. Steere 656 

Clement v. Comstock 74, 78 

Clements v. Lampkin 557 

V, Yturria 637 

Clementson v, Williams 441 

Clemson v, Davidson 563 

Cleveland v. Cleveland 662 

V, Union Ins. Co. 899 

Cleveland & Columbus R. R. Co. 

V. Bartram 222 

Cleveland & Pittsburg R. R. Co. 

V. Rowan 222 

Cleveland, Painsville, & A. R. R. 

Co. V. Curran 222 

Cleveland, Duchess of v. Dash- 
wood 65 
Cleverly v. Brett 847 
Clifford 0. Burton 65 
V, Cony 26 
17. Dam 269 
Clift ». Stockdon 117 
Clifton p. Hooper 584 
V. Litohfield 81 
V. Murray 678 
Cline V. Guthrie 172 
Clinton v. Strong 111, 121 
Clode 17. Bayley 187 a 
Close t;. Cooper 95 
17. Phinps 121 
Closson 17. Means 86 
Clouse 9. Elliott 557 
Cluck 17. State 874 
Clum 17. Brewer 503 
Clunnes t7. Pezzey 255 
Clute 17. Emmerich 816 
Clutterbuck v. Chaffers 414 
Clyde 17. Hubbard 210 
Coates 17. Hughes 672, 684 
17. Wilson 365 
Coats 17. Chaplin 212 
Cobb 17. Bryan 564, 566 
17. Dows 638 
p. Jud^. &c. 147 
17. Lavalle 331 



iSES CITED. 






Doeaon 


Cobb V. N. E. Ins. Co. 


69 


Cobden v. Bolton 


217 


Coble 17. Wellborn 


243 


Coburn t7. Hollis 


480,557 


V. Odell 


520 


Cochrane v. Oliver 


433 


Cock 17. Richards 


259 


17. Wortham 


577 


Cockcroft p. Smith 


05 


Cockell V. Bridgman 


156 


Cocker v, Cowper 


631 


9. Cromptou 


626 


Cockerill v. Armstrong 


95 


Cocking p. Ward 


127 


Cockrane p. Libby 


278^ 


Cockshot p. Bennett 


121 


Coco's Succession 


847 a 


Codling p. Johnson 


544 


Codman v. Armstrong 


582 a 


p. Freeman 


613 


V. Jenkins 


120 


p. Winslow 


555 


Coffin p. Coffin 


821 


p. Cottle 


80,432 


p. Field 


613, 685 a 



p. Newburyport Ins. Co. 382, 403 

p. Otis 681 

Coggins V. Griswold 815 

Cogswell p. DoUiver 445 

Cohen p. Hinckley 882, 386 

p. Morgan 453 

Colt p. Commercial Ins. Co. 251, 877 

p. Houston 31 

p. Starkweather 295 

Coker p. Bir^e 465 

Colburn p. Richards 467 

Colby p. Sampson 589 

Colcord p. Macdonald 649 

p. Swan 11 a 

Colden p. Thurber 662 

Cole p. Blake 605 

p. Flitoraft 26 

p. Goodwin 215 

V. Johnson 551 

p. Kimball 240 

p. Saxby 867 

p. Sprowl 468 

p. Stewart 616 

p. Terry 646 

p. Turner 84 

p. Wright 645 

Coleman p. Fobes 444 

p. N. Y. & N. H. B. R. Co. 98 

p. Parish 832 

p. Riches 64 a 

V. Robertson 688 

Coleraine p. BeU 583 

Coles p. Bell 608 



INDEX TO CASES CITED. 



XXI 



SaetUm 

638 

61 

435 

480 

442 

CoUier o. D. W. & W. R. R. Co. 261 

Gollings V. Hope 251 

Collingwood r. Irwin 244 

Collins V. Baker 244 

V. Boston & M. R. R. 208, 221 

V. Council BlufU 232 a 



Coles f. Clark 

V. Trecothick 
Colgate r. Buckingham 
Collamer v. Foster 
College p. Horn 



230 a, 561 
111 
431 
625 

658, 660 

93 

301 

195 

678 

290, 528 
239 
131 
179 
117 
219 
629 
443 



v. Evans 
v. Lane 
V. Mack 
V. Perkins 
V. Prentice 
V. Todd 
V. Westbury 
CoUott 0. Haigh 
Colman, Re 
Colsell V. Budd 
Colson V. Bonzey 

0. Selby 

Colt V. Barnard 

t?. Clapp 

V. McMechen 

r. Netterville 

Coltman v. Marsh 

Colton V, Cleveland, &c. R. R. Co. 219 

V. Goodridge 300 

Columbia Del. Bridge Co. v. Greisse 63 

Columbian Ins. Co. v. Lawrence 387 

Colwill p. Reeves 614, 622 

Combe v. Pitt 286 

Commerce (Bank of) v. Union Bk. 164 

Commercial Bank i;. Cunningham 536 

V, Reckless 297 

9. St. Croix Man. Co. 195 

V, Wilkins 585 

Commissioners v. Allen 588 

V. Hanion 292 

V. Rose 141 

r. Taylor 665 

Commonwealth v. Belding 662 

9. Bradford 459 

V. Call 48 

V. CaUaghan 286 

V. Chapman 286 

V. Churchill 26 

V, Cole 662 

9. Davenger 279 

v. Davis 457 

V. Doane 251 

». Drew 26 

V. Dudley 241 

V. Emery 299 

0. Eyre 83 

e. Fairbanks 371 



Commonwealth v. Grey 

V. Harmon 

V, Hawkins 

V, Holt 

t;. Horton 

V. Hunt 

V. Hurley 

V, Isaacs 

t7. Lahey 

V. Lannan 

V. Littlejohn 

V. Low 

V, McDonald 

V, Mecklin 

r. Merriam 

V, Mosler 

V. Newbury 

V. Nichols 

i;. Norcross 

r. Old Col. R. R. Co. 

t;. Ortwein 

t7. Pejepscot Propr's 

V. Pitsinger 

V, Pomeroy 

V. Putnam 

V. Shepherd 

V, SneUing 

V. Strieker 

V. Tarr 

V. Thrasher 

t;. Vt. , &c. R. R. Co. 
Compagnon v, Martin 
Compton V. Chandless 

V. Jones 

V. Richards 
Comstock V. Hadlyme 

17. Hannah 

17. Smith 

17. Tupper 
Conant v. Conant 
Conard v. Pacific Ins. Co. 
Concanen t7. Lethbridge 
Cone V. Baldwin 



Seedon 

58 

418 

874 

45 

47 

461 

462 

48 

47 

46 

461 

662 

662 

lib 

47 

871 a, 372 

664 

47 

461 

662 

373 

78 

41 

373 

48 

150 

424, 453 

150 

45 

47 

222 

414 

144, 433 

112 

471 

689, 690 

172 

520 

111 

52 

272 

586 

136 



Conhocton Stone R. R. Co. v. Buf- 
falo, &c. R. R. Co. 472 
Conklin v. Pearson 444 
Conn r. Cobum 365 
Conn. Ins. Co. v. Groom 409 

V. Tisdale 278 e 

Connecticut, State of t7. Jackson 529 
Connehan v. Ford 662 

Connor 17. Bemheimer 243 

17. Henderson 124 

Conolly V, Warren 221 

Conover i7. Mut. Ins. Co. Albany 405 
Conrad v. Massasoit Ins. Co. 78 

Conroe v, Birdsall 867 

Conroy v. Vulcan Iron Works 232 b 



xxu 



INDEX TO CASES CITED. 



S60tlon 

Consequa v. Willing 249 

Converse v. Citizens', &c. Ins. Co. 405 

V. Converse 688 

V. Norwich R. B. Co. 210 

v. Stow 426 

Conway ». 111., &c. R. R. Co. 222 

Coode V, Coode 54 

Cook V, Babcock 557 

V. Bachellor 227 

V, Deaton 366 

V, Ellis 253 

V. Green 616 

0. HaU 467 

17. Harris 239 

V. Hartle 649 

V. Penryhn Slate Co. 483 

V, Rhodes 140 

V, Round 288 

9. State 49 

V. Stokes 414 

p. Union, &c. R. R. Co. 230 

t7. Ward 417 

V. Wildes 421 

Cook's Will 681 

Cooke v. Etna Ins. Co. 377 

V, Hughes 323 

V, Lloyd 462 

0. Munstone 103, 104 

V. Stafford 11 d 

Coolidge V. Brigham 124, 262 

0. Choate 272 

V. Learned 539 

Coombs V. N. £. Cordage Co. 232 6 

Coon V, Moffitt 575 

V. Syracuse, &c. R. R. 232 b 

Cooper 1?. Barber 425, 473, 475 

V, Blandy 805, 565 

V. Bockett 676, 681 

V. Galbraith 316 

V. Johnson 79 

V. Lloyd 46 

V. McKenna 98 

V, Meyer 166 

V. South 484 

V. Stower 627 

r. Taylor 347 a 

V. Utterbach 456, 459 

Coore r. Callaway 608 

Cope 17. Cope 150 

V. Humphreys 528 

V, Romeyne 638 

Copeland v. Merchants' Ins. Co. 66 

v. New Eng. Ins. Co. 400 

Copes V. Pearce 462 

Copp V, McDougall 195 

Copper V. Power 523 

Coppin V, Braithwaite 222 a, 253, 

267, 272 



86Ctioil 

Corbishley's Trusts 278 / 

Corbly v. Wilson 418, 426 

Corby v. Weddle 172 

Corcoran v. Gurnev 391 

Cordron v. Lord Massarene 115 

Corey v. Burton 367 

Corfield v. Coryell 614, 616 

Com Exch. Bk. t;. Nat. Bk. Rep. 523 
Cornell v, Leroy 4( 6 

Comey v. Da Costa 195 

Cornish v. Farm Buildings,&c. Ins. 

Co. 408 

V. Keene 490, 494, 501, 502, 506 
Cornwall v. Gould 113, 519 

Comwell V. Isham 691 

V, Richardson 424 

Corporation of Clergymen's Sons 

V, Swainson 347 

Corson v. Corson 151 

Cort v. Ambergate, &c. R. R. Co. 261 
Cortelyou v. Van Bi-undt 616 

CorvaUis Fruit Co. w. Curran 487 

Corwin v. Walton 89, 90 

Cory V. Scott 197 

Coryell v. Colbaugh 269 

Coryton v. Lithbye 227 

Cossey v. Diggons 564 

Coster V, Murray 447 

Costigan v, M. & H. R. R. Co. 261 a 
Cotes V. Davis 166 

Cothers v, Keever 261, 262 

Cottam t;. Partridge 445, 447 

CottereU v. Griffiths 474 

V, Jones 449 

Cottle V. Aldrich 843, 344 

Cotton r. Pocassett Manuf . Co. 544 
Cottrell V. Chicago, &c. R. R. Co. 230 
Coulson V. Holmes 686 

Coulter V, Dub. & Bel. R. R. Co. 453 
Countess of Pembroke's Case 655 

Countess of Rutland's Case 649 

Countess of Salop v, Crompton 615 
Courteen v. Touse 66 

Couscher v. Tulam 39 

Cousens v. Paddon 143 

Coutts 17. Gorham 471 

CoveU V. HiU 640, 649 

t7. Laming 622 

V. Weston 358, 361 

Cover 17. Davenport 111, 135, 256 

Covert t7. Irwin 303 

Covington St. R. R. Co. v. Packer 208 b 
Cowan V, Silliman 243 

Co well t7. Edwards 114 

Cowles 17. Richmond, &c. R. R. Co. 2326 
Cowley 17. Knapp 666, 674 

Cowling 17. Iligginson 659 

Cowlishaw t;. Cheslyn 632 



INDEX TO CASES CITED. 



xxm 



Seodon 

Cowper V. Andrews 545 

Cowperthwaite v. Sheffield 183, 533 

Ck>x 0. CaUendar 332 

c. Cutter 518 

t'. Dugdale 271 

V. Glue 616 

o. Hickman 482 

r. National Bank 180 

V. Strode 264 

V. Sullivan. 144 

Coze V. Harden 640 

V. Heisley 215 

p. State Bank 601 

Cozedge o. Coxedge 52 

Cozhead v. Richaras 421 

Ck>zon V. Gt. Western B. B. Co. 210 

p. Lyon 12 

Cragin v. N. Y. C. B. B. Co. 222 a 

Craig V. Craig 113 

p. Missouri 135 

Grain p. Colwell 196 

p. Petrie 256 

Cram p. Cram 371 

p. Thissell 642 

Cramp p. Adney 78 

Crancli p. Kirkbam 445 

p. White 645 

Crandall p. Bradley 112, 118 

p. Dawson 425 

p. Mcllrath 232 b 

Crane p. Crane 656 

p. Moses 347 a 

p. Stone 599 

Cranley p. Hillary 30 

Cranston p. Kennedy 78 

Crantz p. Gill 365 

Cratty p. Banmr 232 a 

Cranfurd p. Blackbam 151 

p. State 299 

Cravath p. Plympton 108 

Crawford p. Georgia B. B. Co. 221 

p. Whittal 338 

Creamer p. Perry 190 

Creevy p. Carr 424 

Cremer p. Higginson 529 

Cresswell p. Byron 142 

Cretien p. Theard 431 

Crewe p. Crewe 42, 51 

Cripps p. Hills 365 

Crisdee u. Bolton 258, 259 

Crispin p. Babbitt 232 b 

Critchlow p. Parry 166 

Crocker p. Getchell 189 

V. People's, &c. Ins. Co. 251 

Crockett p. Crockett 656 

Crofoot p. Allen 74 

Croft p. Croft 46 

p. Pawlett 677 



Crofton p. Usley 
Crofts p. Watemouse 
Crogate's Case 
Cromwell v. Lovett 
Cronin p. Gore 
Crook p. McTayish 

p. Wright 
Crooker p. Hutchinson 
Crooks p. Crooks 
Cropper p. Nelson 
Crosby p. Wadsworth 

V. Wvatt 
Cross p. Lewis 
Crosse p. Smith 
Crossen p. Hutchins 
Crbssland p. Murdock 
Crossley p. Beverley 



Saeiion 

668 
221 
95,632 
520 
307 
434 
139 

145, 146 
297 
207 
614 
439 
539 a, 545 

194, 349 
195 
672 
490 



Crouch p. Gt. Western B. B. Co. 210 
p. Lond., &c. B. B. 221 

Croughton p. Blake 679 

Crow p. Bogers 109 

Crowley p. Barry 203 

p. Cohen 379 

Crowninshield p. Crowninshield 689, 

690 

p. Bobinson 136 

Crowther p. Bamsbottom 629 

Crozer p. Pillinff 453, 606 

Crum p. Colienoaugh 244 

Crutchly p. Mann 163 

Cubitt V. Porter 617 

Cuddy p. Brown 354 

Cull p. Sarmin 13 

Cumber p. Wane 28, 31 

Cumberland p. North Yarmouth 74 

Cummin p. Smith 412 

Gumming p. Hackley 113, 520, 521 

Cummings p. Noyes 108 

Cunningham p. Cunningham 462 

». Bay 11 b 

p. Lawrents 120 

Currie p. Donald 295 

p. Misa 172 

Currjr p. Cometh Ins. Co. 396, 408 

Curtis p. Carson 95 

p. Deering 244 

p. Drink water 221 

p. Flint 102 

p. Francis 556 

p. Hall 295, 300 

p. Hannay 262 

p. Hoyt 272 

p. Hunt 347 

p. Patton 367 

p. Rochester & ». B. B. 222, 268 b 

p. Vernon 344, 345, 350 

p. Ward 649 

Gushing p. Adams 622 



XXIV 



INDEX TO CASES CITED. 





flection 


Cufihinc V. Aylwyn 
V. Gore 


686 


112 


Cushman v. lilanchard 


243 


V, WadHftll 


93 


Cathbert v, Cumiuing 


251 


r. Peacock 


524 


Cutler V, Close 


136, 143 


V, How 


259 


t7. Johnson 


259 


V, Lincoln 


656 


Cutler's Patent 


506 


Cutter t7. Bonney 


219 


V. Powell 


103, 104 


Cutts V. Brainard 


210 


V, Spring 


618 


Cuyler v. Decker 


221 


v. Kellifl 


187 



D. 



Daggett V, Adams 


635 a 


D'Aguilar o. D'Agoilar 


44,53,54 


Dahl V. FuUer 


646 


Dailey v. Beck 


240 


V, Daily 


44 


Dain v. Wicoff 


574, 579 


Dainea v. Hartley 
Dalby v. India, &c. Ins. 


414, 417 


Co. 409 


Dale v. Birch 


587 


r.Wood 


95 


Dalglish V, Davidson 


393 


Dalton V. Favour 


226 


V. Gib 


366 


Daly V. Maitland 


257 


Dalzell V. Mair 


381 


Dame r. Kenney 


424 


Damon v, Bryant 


597 


Damron v. Boach 


268 a 


Dan V, Brown 


681, 694 


Dana v. Coombs 


367 


17. Fiedler 


261 


». New York, &c. R. R. Co. 232 b 


V. Valentine 


473 


Danbury Comet Band o. 


Bean 646 


Dance v, Robson 


424 


Dane ». Kirkwall 


870, 371 


Danforth v. Culver 


441,443 


V. Pratt 


265 


V. Schoharie 


127 


Daniel v. North 


475, 545 


Daniels v. Daniels 


646 


V. Harris 


400 


V. Pond 


615 


Danielson v. Andrews 


11 tf 


Darby v. Mayer 


672 


V. Smith 


635 


Dare v. HeaUicote 


544 



Darline v. B. & W. R. R. Co. 
Darnell v. Williams 
Dauce t;. Luce 
Davenport v. Lamson 

t;. N. E. Mut. Ins. Co. 

t;. Rackstrow 

V. Russell 

V. Schram 
Davey v, Jones 
David V. Ellice 

V. Moore 

V, Preece 
Davidson v. Abbott 

V. Graham 

V. Willasey 
Davie v, Briggs 
Davies v. Jenkins 

17. Mann 

v. Morris 

17. Nicholas 

V. Penton 

V, Smith 

V, Stacey 

V. Stephens 

17. "Vernon 

17. Williams 
Davis 17. Barriugton 

V. Brigga 

t7. Burrell 

r. Calvert 

t7. Davis 

t;. Dodd 

t7. Franke 

t7. Griffith 

t7. Hardy 

V. James 

V. Mann 

t7. Nash 

17. Oswell 

17. Saunders 

17. Sigoumey 

t7. Sla^le 

17. Smith 

17. Swearingen 

17. Van Sands 

V. West 

t7. White 

V. Willan 
Davison v. Gill 

t7. Hanslop 
Davy 17. Faw 

17. Smith 
Dawe V. Holdsworth 
Dawes t7. Peck 

t7. Shed 
Dawkins t7. Rokeby 
Dawson v. Chamney 

V. Lawley 



flection 

210 

136 

95 

471 

406 

478 

89 

523 

195 

127 

213 

11 6 

572, 575 

215 

882 

487 

144 

220 

674 

644 

257, 2o8 

367. 440 

564 

539, 659, 663, 664 

644,645 

571, 574 

104 

478 

98 

690 

688 a 

loQ 

93, 635 a 

275 

454 

212 

94 

616 

276, 649 

94 

688 a 

273 

149, 435, 445 

339 

847 a 

431 

614 

216 

661 

127 

78 

678 

531 

212, 640, 648 

446 

421 

230 

139 



INDEX TO CASES CITED. 



XXV 



Dawson v, Moore 

V. Tibbs 
Dax V. Ward 
Day 9. Bream 

V. Holloway 

p. Lamb 

v. Nix 

9. Ridley 
Dean v. Am. Mut. L. Ins. Co. 



Section 
472 
135 
186 
415 
255 
431 
136 
213 
409 



V. Dean 
9. James 
p. Mason 
9. Miller 
9. Peel 
9. Pitts 
9. Williams 



675, 688 a, 694 
604 
496 
414 
88, 273, 574 
443 
530 



Dean, "&c. of Ely v. Warren 250 

Deane r. Clayton 473 

Dearborn i7. Dearborn 145, 146 

Deatriek v. Peiiu. R. R. Co. 222 

De Berkom v. Smith 488 

De Bernales v. Fuller 119 

Deblois v. Ocean Ins. Co. 400 

Decker 9. Freeman 296 

p. Mathews 638 

Decreet v. Burt 478 

De Crespigny v. Wellesley 424 

Deering 9. Sawtel 330 

Deforest 9. Jewett 232 6 

Defries v. Davis 418 

De Gaminde v. Pigon 381 

De Graff 9. N. Y. Central, &c. 

R. R. Co. 232 b 
De Hahn 9. Hartley 406 
Dehner v. Helmbacher 533 
De la Chaumette v. Bank of Eng- 
land 172 
De la Courtier o. Bellamy 12 
Delacroix v. Thevenot 414 
Delafield i;. Parish 689 
Delancy v. McKean 831 
Delano v. Blake 867 
De la Torre v. Barclay 442 
De Lavallette v, Wendt 257 
Delavergne 9. Norris 242 
Delaware & Hudson Canal Co. 9. 

Westchester County Bank 109 
Delaware, L. & W. K. R. Co. v. 

Napheys 222 

9. Toffey 230 
Delegal v. Highley 418, 454, 455 

Delling v. Matchett 74 

Delv^e 9. Plomer 594 

De Long 9. Bickford 489 

De MarentiUe ». Oliver 82 

De Mautort v, Saunders 25 

Demarest v. Willard 240 

Demuth v. Amweg 539, 545 



Beetion 

Den V. Farlee 297 

9. Matlock 676 

9. McCann 539 

V. Vancleve 690 

Dench t?. Walker 642 

Denew v, Daverell 136 

Deuham v, Crowell 290 

Denis i?. Warder 686 

Denison v. Hyde 253 

Denn v, Chubb 836 

V. Flack \ . 112 

9. Mason 295 

9. Purvis 317 

p. Wright 66 

Dennett 9. Crocker 557 

Dennie 9. Harris 640 

9. Hart 520 

Denning v. Ro6me 662 

Dennis 9. Cummings 258 

9. Pawling 93 

9. Weekes 870, 691 

Dennison 9. Boyd 367 

Denuistoun t;. Stewart 189 

Denny 9. Cabot 481, 482 

9. Lincoln 115 

9. N. Y. Cen. R. R. 219 

Denslow r. Van Horn 267 

Denton v, Chicago, &c. R. R. Co. 218 

17. Franklin 689 

Denver, S. P. & P. R. R. Co. i;. 

Woodward 888, 839 

Denys v, Shuckbmg 433 

Derby v. Derby 46 

V, Gallup 637 

9. Johnson 104 

Derisley 9. Custance 239, 354 

Derosne ». Fairie 489, 499 

De Rothschild v. Royal Mail, &c. 

Co. ♦ 219 

Derry 9. Handley 420 

Derwort v, Loomer 141, 221 

Desesbats r. Berquier 642 

Desha v. Holland 251 

Deshon v, Eaton 440 

V. Merchants* Ins. Co. 400 

De Sobry t;. De Laistre 669 
Despatch Line, &c. 9. Bellamy 

Man. Co. 66, 668 
Desvergers v, Willis 242 
Detroit & B. C. R. R. Co. v, Busch 636 
9. McKenzie 210 
Devany v. Vulcan Iron Works 232 b 
Devaynes v. Noble 529, 532, 533 
De Vera Maraver, Re 668 
Devereaux v. Barclay 642 
Devine v. Tarry town, &c. Gas- 
light Co. 232 b 
Devlin 9. Gallagher 230 



XXVI 



INDEX TO CASES CITED. 



Devoe p. Coudon 
Dew V, Clark 

V, Parsons 
Dewey v, Bayntam 

V. Browu 

V. Dewey 

V. Humphrey 

V. Osbom 
Dewit V. Greenfield 
De Wolf V. Dearborn 

V. Murray 

De Wolfe v. 

Dexter v. Cole 

v. Syr., &c. B. R. Co. 
Dey V, Dox 

Dezengremel v. Dezengremel 
De Zichy Ferraris v. Marq. 

Hertford 
Dibble ». Brown 
Diblin v. Murphy 
Dick V, Page 
Dickenson o. Dickenson 

V. Watson 
Dickey r. Sleeper 
Dickinson v. Barber 



Section 

371a 
121 
594 
317 
295, 676, 678 
607 
333, 336 
424 



640 
188 
147 
621 
221 
261 
431 



of 
608 
213, 221 
255 
68 a 
674, 681 
85 
80 
275, 424, 690, 
691 
180 a 
254, 268 a 
49 



V. Bowes 
V. Boyle 
V, Coward 

V. Dickinson 485 
V. Mayor, &c. of Baltimore 654 

V, Prentice 203 

v. Shee 602 

V, Winchester 211 
Dickson v, Chicago & B. I. R. R. 

Co. 472 

V. Lodge 380 

Die Elbinger v. Claye 64 a 

Dietr^h v. Berk 616 

Digby V, Atkinson 245 a 

Dillard v, ColUns 418 

V, Louisville 215 

Dillingham v. Smith 561 

Dillon 17. Alvares 26 

Dilwoiiih's Appeal 470 

Dimes v. Petley 231 

Dimmick v. Lockwood 264 

Dimond v, Henderson 481 

Dinguid v. Schoolfield 441 

Dislx)rn v. Denaby 109 

D'lsraeli t?. Jowett 384 

Disston V. Stranck 587 
Ditbemerr. Chicago, &c. B. R. Co. 230 
Ditcham r. Bond 225, 627 

r. Chivis 209 

Dittman v. Repp 470 

Dixon V. Bell 268 a 

0. Clark 601 



Dixon V. Deveridge 

V. Dunham 

V. Hancock 

17. Mover 
Dobree v. Eastwood 
Dodd 17. Holme 

t7. Kyffin 

V. Non'is 
Doddington t7. Hudson 
Dodge 17. Haskell 

V. Morse 
Dodson V, Grand Trunk 

17. Sotheby 
Dodwell o. Burford 

V. Gibbs 
Doe t7. Andrews 

17. Archer 

o. Banks 

V. Barford 

17. Batten 

V. Baytup 

V. Beven 

17. Bird 

V. Burton 

t;. Calvert 

17. Carter 

t;. Chaplin 

t7. Clarke 

17. Creed 

V. Crick 

17. Cuff 

v. Davis 

0. Deakin 

t7. Doe 

17. Dunbar 

V, Dumford 

17. Edwards 

V, Evans 

t7. Fenn 

17. Filliter 

r. Fleming 

17. Forster 

17. Frowd 

17. Grazebrook 

17. Griffin 

17. Grubb 

17. Hare 

17. Harris 

17. Hersey 

17. Hicks 

17. Hilder 

17. Homer 

17. Huddart 

17. Inglis 

17. Jesson 

17. Johnson 

17. Jones 

17. Knight 



80ctiaii 

12(1 
251 
561 
497 
193 

467, 473 

625 

58, 577, 579 

469 

160 

27 

R.R.CO. 215 

408 

84 

332 

278(/,/ 
323 
327 
685 

321, 325 
305 
245 
318 
305 

321, 693 
245 

817, 323 
306 
325 

321, 324 
318 
336, 456, 677 
278^ 
45 
324 
322 
305 
674 
317 
253 
462 
321 
825 
463 
354 

821, 325 

336 

821, 625, 681 

691 

58 

665 

78 

336 

325 

278/, 356 

325 

439 

297 



INDEX TO CASES CITED. 



XXVll 



Boe 9. KDightley 

IT. Lanibly 

V. Lancashire 

V. Lewis 

0. Lucas 

r. Manifold 

p. Meaox 

V. Mills 

V. Mitchell 

V. Mizen 

V. Mnrless 

V. Nepean 

V. Palmer 

p. Pas(;^aali 

p. Pattison 

p. Payne 

p. Pegge 

p. Porter 

p. Potts 

p. Prosser 

p. R^ad 

p. Rickarby 

p. Roe 

p. Salter 

p. Smith 

p. Somerton 

p. Spiller 

p. Steel 

p. Trye 

p. Watkins 

p. Watson 

p. Whitroe 

p. Whittic 

p. Wilkinson 

p. Williams 

p. Wills 

p. Wippel 

p. Wolley 

p. Wombwell 

p. Wright 

p. Wrightman 
Doe, ex dem. Cox 
Dogan 17. Ashbey 
Doggett p. Everson 
Dolan p. Fac^n 
Dole p. Hayden 

9. Lyon 

9. ^w Eng. Mat. 
Co. 
DoUfns p. Frosch 
DoUiver p. Ela 
Dolloway p. Turrill 
Dolson p. Saxton 
Don V. Lippman 
Don's Estate 
Donahoe p. Shed 
Donaldson v. Winter 
Donnell p. Gatehell 



86CtiOD 

321 
684 
305 
324 
678 
325 
305 
305 
305 
316 
356 
321, 324 
321 
674 
245 
306 
641 
317 
318, 557 
317 
245, 328 
45, 318 
625 
316 
322 
323 
314 
591 
324 
305 
305 
825 
306 
325 
691 
317 
310, 355, 679 
321 
626 
323 
328 
520 
230 a 
93 
113 
424 
Mar. Lis. 

388 

166, 195 

•636 

411 

579 

669 

150 

484,597 

672 

432 



Scetloa 

Donnelly p. Donnelly 462 

Donohue v. Woodbury 28 

Doolittle V. Blakesley 438 

Dorr V. Dudderar 560 

V. Munsell 300 

p. New Jersey, &c. Co. 215 

V, Pacific Ins. Co. 401 

Dorrell v. Johnson 622 

Doty p. Wilson 108 

Doiio V. Barnes 141 

Dougherty v, Missouri, &c. R. R. 

Co. 222 
Dougherty p. Western Bank of 

Georgia 180 6 

Douglas V. Elkins 440, 448 

p. Forrest 344, 437 



p. McAllister 

p. Moody 

p. Patrick 

p. Scougall 
Douglass p. Skinner 
Doune p. Estevin de Darby 
Dover p. Rawlings 
Dow p. Smith 
Dowd V. Wadsworth 
Dowdale's Case 
Dowden p. Fowle 
Dowling p. Allen 
Downer p. Madison 
Downes v, Ski7m8her 
Downing v. Brown 

V. Lindsay 
Dows p. Morewood 
Doyly's Case 
Drake p. Brander 

r. Drake 

p. Hudson 

p. Rogers 

p. Shorter 

p. Sykes 
Draper v. Arnold 

p. Barnes 

p. Fulkes 

p. Moriarty 

p. Romeyn 

V. Wood 
Drew p. Drew 
Drewell ». Towler 
Drown v. Allen 
Drumright v. Philpot 
Drury v. Strong 

p. Worcester 
Dry Dock Co. p. Mcintosh 
Duberly p. Gunning 
Dublin p. Chadboum 
Dubois 9. Doubleday 

p. Keates 
Dubost V. Beresford 



261 
113 
604 
401 
119 
277 
562 
393 
645 
361 
503 
2326 
256 
47,95 
417 
432 
533 

45 

26 
135 
252 
662 
643 
64,582 
580 
358 
647 

20 
202 
160 
437 
544 
414, 424 

61 

264 

662 

129 a 

51 

839, 669, 672 

112 

453 

414 



XXVUl 



INDEX TO CASES CITED. 



Section 

Ducett V. Cunningham 141 

Duchess of Cleveland v. Dashwood 65 

Ducommon v. Hysinger 201 a 

Dudgeon v. Pembroke 400 

Dudley v, Follett 243 

V. Littlefield 171 

r. Smith 221 

Duff V. Alleghany, &o. R. R. Co. 222 

V. Budd 212 

t7. MiUer 640 

Duffield V. Scott 116 

Duffy V, Gorman 115 

». Morris 688 

V. Rafferty 331 

Dufresne v. Hutchinson 80, 648 

c. Weise 414 

Dugan V. United States 166, 160 

Duegan V, O'Connor 565 

Duhammel v. Pickering 107 

Duke V, Spring 850 

Duke of ]Newcastle v. Clarke 261 a 

Duke of Norfolk v, Germaine 47, 55 

Duke of Somerset v. France 250 

Dunbar v. Jumper 240 

Dunbarton v» Franklin 462 

Duncan v, Cannan 460 

V. Findlater 282 a 

V. Gt. Western Ins. Co. 885 

V, Keiffer 114 

V. Spear 165, 172 

r. Sparrow 163 

V. Spear' 637 

r. Stalcup 272 

Duncombe V. Dauiell 424 

Dundas Case 45 

Dunford v. Weaver 288, 500 

Dunham v. Dunham 40, 41 

V. Jackson 603 

». Presby 

17. Wyckoff 

Dunk V. Hunter 

Dunlap V, Buckingham 

V. Dunlap 
Dunlop V. Avexy 

17. Higgins 
Dunman r. Bigg 
Dunn 17. Body 
t7. Dunn 
V. Large 

17. St. Andrew's Church 
Dunning v. Fitch 
Dunton v. Brown 
Dunwich v. Sterry 
Dupon V, McLaren 
Durantr. Durant 
Durell r. Mosher 
Durling v, Loveland 
Dumford t;. Messiter 



84 
561 
565 
270 
677 
405 
261 
421 
104 

54 
836 

62 
613 
867 
627 
800 
41, 44, 53, 54 
642 
675 
114 





Sdctton 


Duryea v, Duiyea 


684 


Duryee v. Dennison 


106 


Duson t7. Dupre 


880 


Dutton, Re 


681 


V. Poole 


100 


r. Solomonson 


640 


V. State 


26 


17. Woodman 


470, 484 


Duval 17. Davey 


424 


Dwight 17. Brewster 


215, 642 


Dwinel t7. Barnard 


662 


Dye 17. Leatherdale 


622 


Dyer, Re 


674 


V, Bowley 


566 


17. Britton 


244 


Dyke r. Aldridge 


584 


V. Sweeting 


200 



E. 



301 

240, 877 

482 

571,577 a 

187, 101 

188 

156 

222 

124 

614 

232 a 

26 

230 



Eadie t7. Slimmon 
Eager v. Atlas Ins. Co. 

17. Crawford 

17. Grimwood 
Eagle Bank t7. Chapin 

17. Hathaway 

17. Smith 
Eagle Packet Co. t7. Defries 
Eames i7. Savage 
Earl V. Griffith 

17. Hall 

17. Raymond 

Earl of Derby i7. Taylor 

Earl of Leicester i7. Walter 275, 424, 

426 
Earle v. Fiske 

17. Harris 

17. Peale 

V. Reed 

17. Rowcroft 

V, Sawyer 
Easley v. Moss 
Eason 9. Henderson 
East r. Chapman 

17. Smitn 
East India Co. t7. Prince 
East London Wat. Co. v. Bailey 
Easterby i7. Pullen 
Eastern R. R. Co. i7. Relief F. 

Ins. Co. 
Eastland v. Caldwell 
Eastman i7. Martin 
Eastwick v, Hugg 
Eastwood V. Kenyon 
Eaton 17. Bright 

17. Cooper 

17. Del., &c. R. R. Co. 



200 

883 

865 

865 

800 

480, 404, 405 

414 

36 

424, 425 

186 

441, 442 

62 

442 

405 
424 
278 a 
11? 
107, 282 
462 
620 
222 



INDEX TO CASES CITED. 



XXIX 



Seetkm 

368 

239 

640 

11 6, 599 

600, 607 

115 

11 6. 411 

69 

678 

440 

605 

153 

117 

678 

232 a 

655 

lib 

406 

482 

112 

249, 252 

678 

629 

205 

273, 573 

79 

440 

135 

681 

253 

57 

297 

396 

640 

642 

220 

608 

76 

550 

478 

527 

262 

579 

27 

25, 131 

421 

315 

53 

147 

Electric Telegraph Co. o. Brett 493 

Eliot V. Allen 277 

9. Eliot 44 

V. Lawton 435 

Elizabeth v. Hill 121 

Elkins 9. Boston & M. B. B. Co. 212 

Elliott V. Aston 502 

V. Dudley 478 

0. Edwards 124 



Eaton V. Hill 

V. Jaques 

V. Lynde 

p. Ogier 

17. Wells 

V, Whitaker 
EbersoU v. Krug 
Ebert v. Ebert 
Eccleston v. Petty al. Speke 
Eckert v. Wilson 
Eckstein v. Reynolds 
Eddy c. Gray 

V. Smith 
Edelen v. Hardey 
Edgar v. Castello 
Edge V. Pemberton 
Edgerley v. Emerson 
Edgerly v. Farmers' Ins. Co. 

V, Gardner 
Ed^rton t;. Brackett 
Edie V. East India Co. 
Edlestone v, Speake 
Edmonds v, Buel 

V. Lowe 
Edmondaon v. Machell 
Edmunds r. Cox 

V. Downes 
Edson t\ Weston 
Edwards v, Astley 

17. Beach 

17. Crock 

v. Dismukes 

17. Footner 

V. Frank 

t;. Hooper 

r. Sharratt 

17. Yeates 
Efner v. Shaw 
Ege V. KiUe 

t;. Kyle 
Egg V. Bamett 
Ej^leston v. Macanly 
Eichar t7. Kistler 
Eichom t7. Le Maitre 
Ela 17. Rand 
Eiam 0. Bodger 
Elden t7. Keddel 
Eldred v. Eldred 
Eldridge, Be 



Elliott V. Morgan 

17. Nicklin 

17. Swartwont 
Ellis V. Abrahams 

V, Am. Tel. Co. 

v. Andrews 

17. BuzzeU 

V. Ellis 

17. Lindley 

17. Paige 

17. Watson 

v. Welch 

17. Wild 
Ellison V, Bray 

17. Lewis 
Ellsworth 17. Brewer 
EUwood 17. Monk 



Beetion 
131 

579 
121, 123 

454 

211, 222 a 

230 a 

407, 426 

365 
418, 426 
859, 615 

484 
243, 244 

523 
78 

562 

112 

109 



Elmore 9. Naugatuck R. R. Co. 210 

Elsam V, Fawcett 56, 577 

Elsey 17. Metcalf 297 

Elting 17. Scott 396 

ElweU 17. ChamberUn 68 

Elwes 17. Elwes 43 

Elwood 17. Bullock 250 

Ely 17. Monson Mfe. Co. 500 

Emblem i7. DartneU 180 a 

Embrey i7. Owen 467 

Embry i7. Morrison 367 



Emenne v. O'Brien 
Emerson i7. Blonden 

V. Boville 

17. Cutts 

17. Howland 

17. Murray 

17. Propr's of Minot 

17. Skaggs 

17. Thompson 

17. White 

©. Wiley 
Emery i7. Estes 

17. Hildreth 

17. Hobson 
Emmerson v. Heelis 
Emory v. Davis 
England t7. Slade 



523 

65 

684 

166 

261a 
300 
244 
454 
342 

278/ 
665 
172 
339 

lis 

61 

594 

805, 565 



English & Irish Ch. University, 

Re 482 
Epis. Charit. Society v. Ep. Ch. 

in Dedham 66 

Erb 0. Brown 665 

Erd 17. St. Paul 230 

Erick 17. Johnson 67 

Erie & W. Transp. Co. i7. Duter 216 

Erie R. R. Co. v. Wiloox 210 

Erskine i7. Davis 300 

V, Townsend 330 

Erwin i7. Blake 141 

17. Olmstead 615, 616 



XXX INDEX TO < 

Beetlon 

Esenbach v. Hurtt 458 

Espy V, Bank of Cincinnati 123 , 164 

Esselstyn v. Weeks 440 

Esson V. Tarbell 561 

Estes r. Mansfield 81 

w. Troy 662 

Esty f . Love 560 

Etheridge v. Binney 483 

Evans v. Arnold 689 

V. Ascough 361 

V. Birch 88, 628 

V. Brander 586, 599 

V. Curtis 483 

v. Eaton 402, 505, 508 

V. Evans 42, 616 

V. Fitchburg B. R. Co. 222 a 

V. Fryer 11 d 

V, Gray 136 

V. Hettich 508 

V. Huey 301 

V. Judkins 605 

V, Kymer 649 

v. Manero 699 

17. Morgan 462 

v. Myers 251 

V. Powis 31 

t7. Stephens 284 

V, Vaughan 243 

vi Verity 126 

Eveleigh v. Sylvester 387 

Evelyn v. Chichester 307 

Evening News Assoc, v, Tryon 420 

Everett v. Coffin 642 

t;. Collins 520 

r. Gray 136 

V. Tindall 285 

Everitt «. Everitt 688 a 

Everth v. Tunno 389 

Ewart I?. Kerr 649 

V. Street 219 

Ewer V, Ooze 511 

v. Jones 435 

Ewing V. Blount 649 

u. French lib 

V. Peters 347 

Exall V. Partridge 114 

Eyles V, Faikney 115, 690 

Eyre v. Norsworthy 389 

EzeU 17. Franklin 64 a 



F. 

Fairbank t;. Phelps 
Fairbanks r. Blackington 

V. Stanley 

V. Williamson 
Fairburg v. Eogers 



640 
118 
112 
240 
230 



\flKS CITED. 






8M/tion 


Fairchild v. Adams 


69,78 


17. Slocum 


209 


Fairclaim v. Shackleton 


318 


Fairlee t;. Denton 


112 


Fairlie v. Birch 


589 


Fairman v. Ives 


421, 423 


Faith V, Mclntire 


203 


Fallon V. O'Brien 


623 


Fane t;. Fane 


524 


Fannin v. Anderson 


438 


Fant 17. Cathcart 


867 


Parish t7. Reigle 
Farlie t;. Danks 


221 


449 


Farmer v. Arundel 


123 


V, Darling 


453,454 


17. Rand 


190 



Fa^ners^ &c. Ins. Co. v. Crampton 408 

17. Gargett 408 

Farmers' and Mechanics' Bank v, 

Champlain Trans. Co. 210, 

212, 215 

17. Israel 11 b 

17. Polk 34 

Farmers' Bank v. Reynolds 156 

Farnham v. Brooks 448 

V. Camden 218, 219 

Famsworth i7. Allen 178 

17. Chase 251 

17. Garrard 136 

17. Storrs 421 

Famum i7. Fowle 179 

17. Piatt 658 

Farr v. Hicks 68 

V. Newman 594 

V, Smith 647 

17. Stevens 523 

Farrant v. Olmius 259 

V. Thompson 640 

Farrar v. Ayers 690 

17. Barton 635 a 

r. Beswick 646 

17. Merrill 541 

Farrell i?. -Sltna F. Ins. Co. 406 

V. Lovett 172 

Farrington t;. Lee 445 

Farwell v. B. & W. R. R. Co. 232 b 

Faugier t7. Uallett 393 

Faulder i7. Silk 246, 371 

Faulkner t;. Bailey 441 

V. Brown 637 

Favenc r. Bennett 536 

Faw 17. Roberdeau 437 

Fawcett v. Cash 261 a 

17. Clark 414 

17. Hall 327 

17. Jones 675 

Fawcus 17. Sarsfield 400 

Fay v. Bradley 530 



INDEX TO GASES CITED. 



XXXI 



Fay V. Goulding 
V. Noble 
V. Parker 
V. PreDtioe 
r. Taylor 
Fayle v. Bird 
Peamster o. Withrow 
Feamley v. Morley 
Keatherstonhaugh v, Johnston 
Feital v. Middlesex R. R. Co. 
Feize v, Thompson 
Felch V. Taylor 
Feldman 9. Gamble 
Fellows 0. Steamboat Co. 
Falters v, Humphreys 
Feltham v. Cartwright 

r. Teny 
Felton V. Dickinson 
Femings v. Jarratt 
Fenn v. Gn^ton 
Fenner v. Duplock 

V. Lewis 
Fennings v. Lord Grenville 
Fenton, Re 
9. Reed 
V. Robinson 
9. Sew. Machine Co. 
Fenwick 9. Floyd 
Ferguson v. Cappeau 
V. Ferguson 
9. Peden 
Fergnsson 9. Brent 
Fernald 9. Chase 
Ferrell 9. Alder 

9. Ferrell 
Ferrer 9. Oven 
Ferrers 9. Costello 

9. Ferrers 
Ferriman 9. Fields 
Ferris 9. Brown 
9. Fuller 



14 
481 
253, 266 
474 
347 
180 a 
520 
121 
642 
230 
255 
109 
532 a, 533 
68 a 
659 a 
627 
117, 121 
104, 109 
343 
471 
565 
65 
646 
147 
460 
172 
453 
816 
209 
41 
657 
219 
642 
244 
545 
70,71 
107 
53,54 
621 
625 
825 



Finch 9. MiUer 
Fincham 9. Edwards 
Findlay v. Smith 
Finkbone's Appeal 
Finnerty 9. Tipper 



Fessenmayer 9. Adcock 37, 112, 126 

Festal 9. Middlesex R. R. Co. 222 

Fetherly 9. Waggoner 679 

Fetter 9. Beale 89 

Fidelity, &c. Ins. Co. 9. MUler 279 

Field, Re 674 

9. Columbet 431, 551 

9. Holland 533 

9. Nickerson 179 

9. Proprietors 139 

Fielder 9. Starkin 262 

Fifield V. Maine Central R. R. Co. 642 

Fillebrown r. Hoar 267 

FiUiter 9. Phippard 253 

Finch 9. Blount 649 

9. Brook 002, 603 

V. Gridley 412 



Scetioa 
605 
678 
651, 656 
435 
418 
Fireman's Ins.* bo. v. Cochran 648 
Fiist Mass. Tump. Co. 9. Field 448 
First Nat. Bk. of Gr. 9. Marietta 221 
Fish 9. Chapman 215 

9. Dodge 472 

Fisher 9. Bradford 168 

9. Bristow 452 

9. Duncan 342 

9. Fellows 114 

9. Jewett 24, 367 

9. Lelaud 200 

9. Liverpool Mar. Ins. Co. 377 
9. McGirr 584, 629 

9. People 373 

9. Pimbley 78, 79 

9. Samuda 136 

9. Sargent 251 

9. Shattuck 302 

9. Whoollery 560 

9. Willard 66 

Fiske 9. New Eng. Ins. Co. 398 

9. Small 618 

Fitch 9. Chandler 109 

9. Harrington 482 

9. Hilleary 445 

9. Newberry 208 

9. Sutton 28, 519 

Fitts 9. HaU 368 

Fitzgerald v. Allen 104 

9. Cavin 85 

9. Fitzgerald 94 

Flake v. Nuse 605 

Flanders 9. Colby 638 

9. Davis 360 

Fleece r. Jones 347 a 

Fleetwood 9. Curly 417 

Fleming 9. Alter 109 

Flemlngton 9. Smithers 267 

Fletcher 9. Atlantic, &c. R. R. Co. 230 
9. Braddyll 416 

9. Dyche 259 

9. Rylands 85 

9. Webster 78 

Flewster 9. Royle 621 

Flight 9. Maclean 160 

9. Reed 107 

Flike 9. Boston & A. R. R. Co. 232 b 
Flint 9. Clinton Co. 62 

9. Flemyng 380, 382 

Flower 9. Aoam 478 

9. Pedley 414 

9. Young 878, 384 

Floyd 9. Day 118, lia 



xxzu 



INDEX TO CASES CITED. 



fl6Ctio& 

Flurean v. ThomhiU 261 

Foden v. Sharp 180 b 

Fogg V. Middlesex, &c. Ins. Co. 405 

Foley v. Lord Peterborongh 51 

V, Kirk 837, 551 

17. Mason 251 

Folger V. Hinckley 561 

Folly V, Vantuyl 297 

Folsom V. Belknap, &c. Ins. Co. 405 

V. Brown 426 

V, Manchester 644 

V. Merchants', &c. Ins. Co. 882 

v. Mussey 186 

Foot V, Knowles 847 

V. Tracy 424 

Foote V. Silsby 507 

Forbes v, Agawam, &c. Ins. Co. 406 

V. Am. Mut. L. Ins. Co. 405, 406 

V. Appleton 128 

V. Lord Middleton 482 

V. Manuf . Ins. Co. 8U2 

Forbush v. West. Mass. Ins. Co. 406 

Ford V. Fitchburg R. R. Co. 282 b 

V. Ford 681 

V. Fothei^ 866 

17. Jones 78 

r. Mitchell 212 

V. Monroe 268 b 

V. PhiUips 867 

V. WiUiams 141 

Forde «. Skinner 84 

Fordham v. Wallis 438 

Fores v. Wilson 88, 573 

Forman v. Miller 261 

Forney v. Hallacher 49, 461 

Forrester v, Pigou 896 

Forse & Hembling's Case 684 

Forster t?. Forster 52 

ForsyUi v. Campbell 584 

17. Ganson 852 

v. Hastings 867 

r. Wells 636, 642, 649 

Forth V. Pursley 640 

Forty t». Imber 564 

Forward v. Pittard 219 

Foshay v. Ferguson 801, 454 

Foster v. Allanson 127 

V. Bates 889 

V. Blakelock 847 

V, Fquitable, &c. Ins. Co. 405 

17. Essex Bank 68 

V. Gorton 640 

V. Mansfield 297 

V. Mora 881 

r. Pettibone 614 

V. Pointer 11 ^^ 

t7. Scripps 414 

V. Shaw 441 



Foster v, Stewart 

t;. Thurston 

V. U. S. Ins. Co. 

17. Wilmer 
Fouldes 17. Willoughby 
Foulke 17. Bond 
Founes v, Ettricke 
Fountain v. Coke 
Fowler t7. Bott 

v. Brown 

17. Bush 

V. Chichester 

17. Gilman 

17. Hunt 

v. Morrill 

V, Sharp 



Seetton 
108 
115 
882 
882 
642 
557 
462 
691 

245 a 
640 
520 
424 
276 
489 
141 
846 



Fowles 0. Gt. Western E. R. Co. 209 

Fowlkes 17. N. & D. R. R. Co. 483 

Fox 17. Evans 694 

17. Harding 256 

17. Marston 684 

17. Northern Liberties 621 

r. Whitney 204 

17. Widgery 557 

Foxcroff 8 Case 150 

Foye V. Nichols 494 

France i7. Lucy 191 

Francis i?. Grover 681 

17. W^ilson 268 

17. Wood 685 

Franklin r. MiUer 186 

17. Yanderpool 520 

Franklin F. Ins. Co. v. Findlay 405 

17. Martin 377 

Frankum v. E. of Falmouth 11 « 

Fraser i7. Berkley 98, 267 

Fraunces*s Case 243 

Frazer v. Hopkins 878 

17. Peoria 264 

Frazier v. Dick 202 

17. Hyland 580 

v. McCloskey 418 

Freary i7. Cook 250 

Frederick i7. Lookup 284 

Fredericks t7. Isenman 357, 858 

Free t7. Hawkins 164 

Freeman i7. Arkell 455 

v. Birch 212 

17. Bluett 597 

17. Boynton 179 

17. Freeman 681 

r. Haskins 199 

17. Howe 561 

17. KenneU 160 

17. Tinsley 418 

17. Underwood 636 

Freestone r. Butcher 64 a 

French v. Bank of Columbia 195 



INDEX TO CASES CITED. 



XXZUl 







SMtfon 


French r. Brookes 




261a 


V. French 




295, 666 


0. Kirk 




452 


V. Marstin 




659 


V, New 




78 


V. Richardson 




78 


' V. Smith 




454 


Frere v. Peacocke 


871a, 


872, 689 


Frets 9. Frets 




79 



Frick r. St. Louis, &c. R. R. Co. 232 

Flicker v, Thomlinson 282 

Friend v. Eastabrook 246 

V, Woods 219 
Friesmuth v. Agawam, &c. Co. 406, 

408 

Frink V. Lawrence 468 

Frisbee v. Seaman 440 

Frisbie v. Larned 528 

Frohock v. Pattee 440 

Fromont v. Coupland 214 

Frost V. Beugough 441 

V, Dougm 584 

V. Knight 261 

V. Plumb 111 

Frothingham v. Haley 67 

Fry V, Soper 648 

Fryatt v. SuUlTan Co. 636 

Frye v. Barker 441 

Fuguet's Will 674, 681 

Fuller V. Bradley 211 

V, Hooper 190 a, 195 

V. Jewett 232 b 

V. Little 603 

V, McDonald 190, 196 

V. Naugatuck R. R. Co. 221 

r. Rounceville 625 

V. Tabor 642 

V. Wilson 68 

Fullerton o. Warrick 93 

Fulton 9. Griswold 136 

V. Williams 478 

Fulton Ins. Co. v. Milner 251 

Funk V, Dillon 649 

p. Voneida • 242 

Furman o. Applegate 577 a 

V. Van Sise 572, 575 

Furnas v. Durgin 244 

Fumeaux v. Hutchins 250 

Fumess v. Cope 195 

Fnmiss v. Ellis 11 a 

V. Mut. Life Ins. Co. 409 

FydeU v. Clark 523 



G. 



J. 6. 9. H. G« 
Gabay 9. Lloyd 



64 
877 



Scetioii 

Gabriel 9. Dresser 30 

Gaby 9. Wilts. & Berks. Canal Co. 434 

Gage 9. Gage 61 

€raillard v. Smart 141 

Gaines i\ Green, &c. Co. 656 

9. Hennen 150 

9. Relf 462, 464 

Gainsford 9. Carroll 261 

Gale, Re 147 

9. Capem 24 

9. Kemper 180 6 

Galena & C. U. R. R. Co. r. Fay 222 

9. Yarwood 222 

Galloway 9. Bleaden 494, 505 

Galveston v. Loonie 435 

Galvin o. Bacon 561 

9. Prentice 868 

Gammon v. Everett 195 

Gandell 9. Ponligny 261 a 

Gandy v. Humphries 269, 424 

9. Jubber 472 

Gansevoort 9. Williams 478 

Gants 9. Vinard 426 

Gardiner v. Campbell 615 

9. Collins 297 

9. Croasdale 260 

9. Gardiner 298 

9. Heartt 280 6 

9. Jadis 56 

9. Madeira 47 

9. Slade 421 

9. Tudor 440 

9. Webber 431 

Gardner v. Cleaveland 118 

9. Field 277, 624 

9. Gardner 54 

9. Grannis 282 

9. Heartt 230 h 

9. Randolph 455 

Gardner Peerage Case 152 

Garzrave r. Smith 634 

Garland 9. Jacomb 164 

Garnett 9. Woodcock 178 

Garr r. Selden 421 

Garrard 9. Hadden 172 

Garrett 9. Handley 109 

Garretzen 9. Duenkle 230 

Garrison 9. Sandford 242 

Garritt 9. Sharp 476 

Garside 9. Trent & Mer. Nav. Co. 210 

Garth 9. Caldwell 560 

V. Howard 64 

Grartflide v Orphans', &c. Ins. Co. 401 

Garvey 9. Hibbert 298 

Gass 9. New York, &c. R. R. Co. 212 

9. Stinson 538 

Gates 9. Bavley 634 

9. Bowker 11, 418 



YOU IL 



XXXIV 



INDEX TO CASES CITED. 



Gates V. Batler 

p. Gates 
Gathercole v. Miall 
Gathings v. Williams 
Gatton V. Tolley 
Gault 0, Babbitt 
Gawtry v. Leland 
Gay r. Wallman 
Gayetty v. Bethune 
Gayler v. Wilder 
Gaylord v. Van Loan 
Gaze V. Gaze 
Gazynski v. Colbum 
Geiselman t;. Scott 
Geisler ». Brown 



430, 475, 557 
561 
415 
464 
817 
417 
240 

60 

657 

492, 501 a 

14 

676 

411 

232 a 

414 



General Mut. Ins. Co. ©. Sherwood 887 

George v. St. Louis, &c. R. R. Co. 222 

V. Surrey 677 

r. Van Horn 576 

Greorgia So. Ry. Co. r. Reeves 240 

Gerard v. Baker 65 

German Ins. Co. ©. Ward 406 

German Nat. Bk. v. Meadowcroft 642 

Germantown Railr. Co. t». Wilt 621 

Gerrard v. O'Reilly 259 

Grerrish v. Cummings 277, 649 

17. Edson 599 

V. Nason 675 

V. Shattuck 658 

Gibb V. Mather 180 a 

Gibbens o. Cross 684 

Gibbon v. Coggon 184, 584 

v. Featherstonhaugh 527 

Gibbons t7. Cauut 684 

V. McCasland 441 

V. Pepper 85, 94 

V. Wilcox 484 

Gibbs 0. Cannon 186 

r. Chase 621 

r. Merrill 24, 133 

Gibson r. Brand 496 

V. Chaters 453 

V, Culver 210 

r. Farlejr 858 

V. Fleming 95 

V. Grosvenor 440 

V. Minnet 119 

V. Small 400 

V, Wells 655 

V. Williams 417 

Giddings v. Hadaway 78 

Gidley v, Gidley 75 

V. Williams 838 

Gidney r. £arl 616 

Gilbert o. Birkinsbam 255 

f. Bone 284 

r. Collins 444 

V. Roberts 642 



86ctSofi 

Gilbert v. Stone 270 

17. Williams 142 

Gilchrist v. Cunningham 118 

Giles v. Dyson 847 

v. Edwards 104 

V. Fauntleroy 221 

V. Giles 681 

V. Grover 637 

r. Harris 607 

Gilkeson v. Smith 519, 607 

Gill V. Cole 832, 336 

V. Cubitt 172 

v. Kuhn 481 

V. Lougher 142 

Gilleland r. Martin 278/ 

Gille.«(pie v. Brooks 296 

f. St. Louis, &c. R. R. Co. 219 

Gillett P. Maynard 124 

r. Mo. V. R. R. Co. 68 

V. Rippon 113, 114 

9. Roberts 642 

v. Treganza 650 

V. Wilby 506 

Gillies r. Smither 348, 349 

Gilligan v. Com. F. Ins. Co. 406 

Gillon V. Boddington 434 

V, Wilson 86 

Gilman v. Haven 244 

i;. Lowell 275 

17. Noyes 230 

Gilmore v. Hague 165 

17. Holt 611 

17. Ix>gan 279 

©. Newton 642 

17. Spies 180 

Gilpin 17. Fowler 421 

r. Hollingsworth 359 

Gilson t?. Stewart 127 

Ginger v. Ginger 46 

Girdlestone i7. McCrowran 570 

Gisborue t7. Hart 71 

Gist V. Robiuet 317 

Gittings 17. Carter 560 

Givens r. Briscoe 141 

V. Higgins 843 

17. Robbins 432 

Gladstone v. McGowran 570 

Gla.sco t;. N. Y., &c. R. R. Co. 222 

Glasier v. Eve 597 

Glasscott V. Day 602, 605 

Gleason r. Clark 142 

V, Dodd 142 

17. Smith 104, 261 

Glenn t7. Kays 627 

Glezen r. Rood 486 

Glossop v. Colman 478 

17. Jacob 161 

17. Poole 594 



INDEX TO CASE8 CITED. 



XXZV 



8«tioii 

Gloucester Bank v. Salem Bank 522 

Glover r. Black 879 

p. Thompson 105 

Goddard v. Cox 529, 581 

r. Grand Trunk R. B. Co. 253 

r. Hodges 581 

9. Smith 452 

Godef roy p. Dalton 145 

V. Jay 142 

Godfrey p. Saanders 86 

Godin V. Ferris 484 

Godson r. Good 131 

p. Richards 167 

Godwin v. Thompson 460 

Goell V. Smith 040 

GolE p. Cook 848, 345 

Gogarty p. Gt S. & W. R. R. Co. 219 

Gogel p. Jaooby 136 

Gold P. Whitcomb 445 

Gold Mining Co. v. Nat. Bk. 67 

Goldey p. Peon. R. R. 215 

Golding p. Nias 570 

Goldschmidt p. Whitmore 888, 890 

Goidsmid v. Bromer 463 

Goldsworthy v. Strutt 258, 259 

Goliehtly p. Ryn 644 

Good p. Cheeseman 81 

p. Hill 237 

p. Leban 27 

p. Mylin 268 a 

Goodall r. Goodall 52 

p. New £ng. F. Ins. Co. 252 

GoodeU, Re 138 

Gooding p. Morgan 123 

Goodland p. Blewith 606 

Goodman p. Harvey 172, 639 

p. Fooock 104 

p. Sayres 74 

V. Simonds . 172 

p. Winter 672 

Goodrich p. Davis 411, 417 

p. Stanlev 31 

p. Walker 297 

p. Warner 455 

Goodright p. Davids 825 

p. Glazier 683 

p. Gregory 297 

p. Moss 151 

p. Saul 150 

Goods of Cohnan 678 

Goods of Piercy 678 

Goodsell p. Myers 867 

Goodtitle p. Baldwin 808 

p. Newman 812 

p. North 837 

p. Otway 684, 686 

p. Tombs 336 

p. Welford 691 






Goodtitle p. Woodward 
Goodwin, Re 

p. Buzzell 

p. Gilbert 

p. Holbrook 

p. Morse 

p. Ward 
Goold V, Chapin 
Gordon p. Buchanan 

p. Ferris 



Section 
323 
202 
448 
110 
609 
112, 262 
297 
210 
377 
434 



p. Harper 561, 616, 640 

p. Little 219, 377 

p. Martin 104 

p. Mass. F. A M. Ins. Co. 879, 392 

p. Parmelee 426 

p. Strange 520 

Gore p. Brazier 149, 264, 316 

V. Gibson 171 

Gorgier p. Mieville 639 

Gorbam p. Gale 580 

Gormley v. Obio, &c. R. R. Co. 232 b 

Gorton p. De Angelis 454 

Goes p. Quintou 638 

Gott p. Diusmore 216 

Gottbehuet p. Hubercheck 414 

Gouger p. Jolly 217 

Gough p. Davies 127 

V. Gough 679 

Gould p. Banks 607 

p. Barratt 456 

p. Glass 662 

p. Hulme 412, 417 

p. Lasbury 24 

p. McKenna 232 a 

p. Shirley 440 

p. Smith 18 

p. Sternberg 616 

p. Stevens 172 

p. Weed 275 

p. White 528 

Goulding v, Davidson 107 

Governor, The p. Rector 460 

Govett p. Radnidge 208 

Gov., &c. of Chelsea Waterworks 

p. Cowper 348 

Growan v. Jackson 483 

Gower p. Moore 195 

Grable p. Margrave 253, 269, 579 

Grace p. Adams 216 

Gracy v. Potts 602 

Grafton v, Carmichael 629 

Grafton Bank p. Cox 195 

p. Moore 183, 484 

Graham p. Barras 383 

p. Bennett 460 

p. Bickham 258 

p. Craig 557 

p. Graham 72 



XXXYl 



INDEX TO CASES CITED. 



flaiaitniBi 

DwvwKlu 

Graham v. Ledda 392 

V. Moore 805 

V. Peat 618 

V. PhoBDiz Ins. Co. 406 

V. Wigley 51 

Grainger v. Hill 449, 452 

Grand Bank v. Blanchard 188 

Grand Chute u. Winegar 172 

Grand Rapids & Ind. K. B. Co. v. 

Martin 230 

GrandstafF v, Ridgeley 598 

Grand Tower M. & T. Co. v. 

Ulman 212 

Granger o. George 284, 481, 433, 448, 

648 

V. Granger 288 

Grangers' L. Ins. Co. v. Brown 409 

Granite Bank v. Ayers 180 

Grant v* Austen 119 

r. Burgwyn 444 

V. Button 136, 148 

V. Duel 271, 458, 457 

V. Grant 45 

V, Hunt 161 

V, Norway 64 a 

17. Shutter 486 

V. Thompson 371 

V. Vaughan 14 

v. Welchman 186 

w. WiUey 256 

Grantley r. Garthwaite 681 

Gravenor t?. Woodhouse 565 

Graves r. IL & N. Y. St. Co. 210 

Gray r. Berryman 432 

17. Bond 545 

V. James 504 

V. Jenks 880 

r. Osgood 498 

I?. Palmer 159 

v. Portland Bank 68, 261 

V. Russell 514 

». Wass 141, 830. 518 

Gray's Case 544, 568 

Grayson v, Atkinson 676 

Grazebrook v. Davis 79 

Grear v. French 487 

Great North. R. Co. r. Shepherd 221 

Great Pond Co. v. Buzzell 245 

Great Western R. R. Co. v. Blake 210 

Greely r. Bartlett 118 

©. Dow 201 

V. Hunt 177 

r. Thurston 187 

V. Tremont Ins. Co. 892 

«. Wyeth 480 

Green v. Bartram 98 

V. Biddle 549 

9. Brown 135 





06OttOB 


Green v. Button 


449 


V. Canaan 


662 


V, Chapman 
V. Cheisea 


480 


554 


(or Dean) v. Crane 


342 


17. Disbrow 


444 


V. Dunn 


645 


V. Elmslie 


387 


V. Goddard 


98 


t;. Greensboro Fern. Col. 


441 


p. Hewitt 


120 


V. Irving 


244 


v. JackK>n 


138 


17. Kemp 


556 


17. Liter 


554 


V, Lon. Gen. Om. Co. 


453 



17. Lowell 584, 687 

V. Merch. Ins. Co. 397 

t7. Miller 74 

17. No. Car. R. R. Co. 431 

Greene V. Pacific Mut. Ins. Co. 388, 392 

Greenfield Bank v.Leavitt 276, 642, 649 

Greening v. Wilkinson 276, 649 

Greenland v. Chaplin 232 a 

Greenleaf v. Cook 186 

Greenough r. Rolfe 78 

Greenway, Ex parte 156 

Greenwood t7. Cozens 681 

». Curtis 111, 182 

V. Misdale 79 

V. Wilton 286 

Greeves v. McAllister 107 

Gregg t7. Wy man 111 

Gregory 17. Bailey 126 

V. Doidge 805 

17. Hill 98, 544 

V. Howard 78 

V. Mack 186 

17. Piper 621 

v. Williams 268, 268 b 

Gregory Pt. Mar. R. R. Co. v. 

Selleck 686 

Grenfell v, Girdlestone 441 

Griffin r. Bixby 617 

V. Blanford 544 

V. Colver 261 

t7. Fairbrother 240 

V. Parsons 83, 94 

Griffis r. Sellers 457 

Griffith 17. Goodhand 286 

V. Frazier 518 

17. Hodges 605 

V, Lee 213 

t7. Lewis 421 

17. Willing 37 

Griffiths V. Teetgen 678 

Griggs ». Howe 172 

Grimaldi t7. White 186 



INDEX TO CASES CITED. 



zxxvii 



Grimes v. Butts 616 

Gnnnell r. PhilUps 580, 621 

V. Spink 626 

p. Wells 258, 578, 575, 579 

Grissell v. Robinson 114 
Griswold V. American, &c. Ins. Co. 408 

p. Plumb 644 

Groee r. West 616 

Grross V. Zorger 78 

GrosTenor v. Danforth 141 

Grotoa 9. Dalheim 177, 195 

Grove r. Wise 646 
Grover & B. S. M. Co. v. Mo. P. 

R. R. Co. 212 

Grow V. Dobbins 357 

Grubbe v. McDonald 689 

Grubbs's Appeal 651 

Grusing v. Shannon 624 

Grymes v. Shack 620 

Guardhouse v. Blackbom 675 

Gudyer p. Hensley 817 

Gnerrant v. Tinder 457 

Gnerry p. Rerton 255 

Guest p. Elwes 11 d 

p. Warren 456 

GuUd p. Butler 80 

p. Hale 481 

Guille p. Swan 224, 622 

Guioii p. McCulloch 25 

Gullet V. Lewis 141 

Gulliver p. Cosens 120 

p. Lon. & N. W. R. R. Co. 222 

Gummer p. Adams 800 

Gunning p. Appleton 414 

Gunter p. Astor 253 

9. Cleytou 584 

Gunton p. Nurse 644 

Garford p. Bayley 11 e 

Guthman p. Aearn 603 

Gutteridge p. Munyard 245 a 

Guy p. Kitchiner 95 

p. Livesey 88 

p. Rand 817 

Guyon p. Serrell 507 

Guyther p. Pettijohn 646 

Gwinn p. Whittaker 580, 583 

Gwyllim p. Scholey 586 

Gwynn p. Homan 662 



H. 



Haas p. Boat 482 

Hackett p. Martin 200 

Hadd p. U. S., &c. Express 210 

Hadden p. Mills 456 

p. St. Louis, ^. R. R. Co. 26 

Haddow p. Parry 880 



Seetioii 

Haddrick p. Heslop 458, 454 

Hadley p. Baxendale 256, 261 

Hadlock p. Losee 445 

Haggett p. Welsh 79 

Hague p. French 12 

Hahn p. Corbett 219 

Haigh p. De la Cour 898 

p. Haiflrh 81 

Haight p. Avery 444 

p. Holley 26 

Haile v, Lillie 868 

Haines p. Haines 681 

p. Leland 424 

V. Pearce 620, 528 

Hale p. Handy 104 

p. N. J. Steam Nav. Co. 219 

p. Peck 528 

p. Washington Ins. Co. 387 

HaUfax p. Lyle 164 

Hall, Re 278 e 

V, Bainbridge 297 

p. Bryan 440 

p. Bumstead 857 

p. Butler 806 

p. Conn. R. Steamboat Co. 253 

p. Corcoran 111, 868 

p. Davis 98 

p. Dean 242 

p. Doe 829 

p. Fearnley 85, 94, 270 

p. Featherstone 172 

p. Gittings 831 

p. Hale 207 

p. HaU 675, 676 

p. Holden 580 

p. Huse 159 

p. Jarvis 496 

p. Marston 109, 119 

p. N. E. R. R. Co. 210, 222 

p. Palmer 297 

p. Ripley 104 

p. Smith 25 

p. Stevens 556 

p. Suydam 458, 454, 459 

p. Swansea 121 

p. Thayer 435 

Hallet p. Collins 460 

HaUiday p. McDougaU 188, 483 

p. Ward 441 

HaUock p. Miller 420 

Hallowell and Augusta Bank p. 

Howard 601 

Halsey p. Whitney 297 

p. Woodruff 277 

Halseys p. Hurd 261 

Halstead p. Cooper 561 

p. Seaman 78 

Ham p. Wickline 414 



XXXYIU 



IKBEX TO CASBB CITED. 



fleetkm 

Hamblin's Suooession 355 

Hambly v. Trott 108 

Hamer v. McFarlin 424 

V, Raymond 470 

Hamilburgh v. Shepard 452 

£[ainilton v. Aflton 839 

V. Cutts 149, 244 

V. £no 418, 420 

V, Hamilton 690 

v. Marsden 305 

V. Smith 459 

V. Starkweather 112 

V. Taylor 305 

V. Third Ave. R. B. Co. 222 

Hamlet t7. Richardson 123 

Hamlett v. Tallman 602 

Hamlin v. 6r. North. R. B. Co. 261 

V. Mack 625 

Hammatt v. Russ 635 a 

Hammen v. Minnick 588 

Hammersly v. Knowlys 529 

Hammerton r. Ilammerton 41 

Hammon v. Huntley 352 

Hammond i;. Dufrene 195 

V. Mich. State Bank 59 

17. Smith 440 

Hanbury v. Ella 11, 11 d 

Hancock v, Amer. Life Ins. Co. 278/ 

r. Cook 444, 447 

V. Soutball 621 

». Wentworth 660 

©. Winter 414 

Handcock v. Baker 99 

Handley v. Rankin 296 

Hands v. Slaney 365 

Handy v. Handy 52 

V. James 677 

Haney v. Townsend 226 

Hankey v. Wilson 165 

Hankinson v, Bilby 417 

Hanlon v. So. Boston By. Co. 230 

Hanmer v. Wilsey 635 a 

Hanna v. MilU 104 

Hannam v. Mockett 231 

Hannebut v. Cunningham 563 

Hannen v. Edes 95 

Hannum v, Belchertown 662 

Hanover t?. Turner 108 

Hansard v. Bobinson 156 

Hanson v. Buckner 264 

V. E. & N. A. B. B. Co. 98, 230 

17. M'Cue 230 b 

Hantz 17. Sealey 460 

Hapgood 0. Watson 24 

Harcourt v, Bamsbottom 79 

Hard t;. Vt, &c. B. B. Co. 232 b 

Harden v, (rordon 128 

Hardmg v. Brooks 424, 426 



Harding v. Carter 

9. Dayies 

17. Greening 

17. Stokes 

17. Tifft 
Hardingham v, Allen 
Hardwick o. Blanchard 
Hardy t7. Harbin 

V. Hardy 

17. Martm 

V. Merrill 

V. Munroe 

V. Union M. F. Ins. Co. 
Hare v. Cator 

v. Horton 

17. Pearson 

17. Travis 
Harger v. Worrall 
Hargrave t7. Dusenboiy 

17. Hargrave 

t7. Le Breton 
Harker t7. Birkbeck 

V. Whitaker 
Harlan v. Harlan 



flaetton 

65 

603 

416 

287 

531a 

119 

203 

430 

672 

258 

870, 691 

640 

406 

239, 241 

297 

642 

382 

172 

523 

150 

419 

618 

35 

561 

Harlow V.Lake Superior Mining Co. 303 

17. Thomas 242 

Harman v. Claiborne 440 

17. Harman 462 

t7. Oberdorfer 297 

t7. Vaux 391 

Harmer v. Bell 26 

17. Killing 367 

17. Wright 300 

Harmon v. Harmon 301 

Harper v. Charlesworth 663 

v» Hampton 28 

17. Hough 78 

t7. Luffkin 88, 573 

t7. Williamson 139 

Harrett i7. Kiuiiey 331 

Harriman v. Harriman 626 

v. Queen Ins. Co. 406, 407 

Harrington o. Barfield 858 

17. Payne 642 

Harris, Ex parte 485 

17. Butler 573 

t7. Clap 263 

t'. Cook 625 

17. Costar 22 L 

r. Dennis 432 

r. Eagle Fire Co. 407 

u. Johnston 523 

17. Jones 245 a 

. 17. Mantle 237 

v. Mitehell 73 

v. Murfree 699 

V, Nicholas 251 

V. Norton 297 



INDEX TO CASES CITED. 





Saetfon 


Harris v. Oke 


103 


V. Osbonm 


142 


0, Packwood 


218 


r. Fhceniz Ins. Ca 


893, 406 


V. Saunders 


297, 642 


V. Thompson 


421 


V. Tyson 
n. Wall 


801 


367 


V. West. Un. TeL Co. 


222a 


Harrison v. Bamby 


566 


V. Bevington 


414 


t7. Bush 


421 


V, Elwin 


674, 677 


V. Fane 


865 


V. Fitzhenry 


195 


V. Glover 


261 



V. Harrison 261, 461, 677 

17. Jackson 61 

V. Johnston 533 

17. Nixon 671 

V. Phillips Academy 297 

v. Rowan 672 

9. Rnscoe 186 

V. Southampton 461 

V, Wright 257 

Harrison's Case 688 

Harrod v. Benton 593 

Hart r. Allen 219 

p. Ayres 112 

r. Boiler 523 

V. Crow 411 

V. Frame 144 

V. Hart 41 

r. Horn 570 

V. Kelley 482 

V, Prater 865 

V. Sattley 212 

Hartford v, Brady 627 

Hartford, &c. Ins. Co. v. Daven- 

port 277 

0. Smith 406 

Hartford Bank t7. Hart 193 

Hartley v. Herring 420 

©.Wharton 367 

Hartman v. Keystone Ins. Co. 409 

Hartness 9. Thompson 133 

Hartranft v, Hesser 419 

Hartshorn 9. Dewson 807 

Hartwell 9. Kelly 636 

Harvard College 9. Gore 339 

Harvey 9. Brydges 98, 622, 623 

9. Epes 640 

9. McAdams 638 

9. Tower 172 

9. Vamey 34 

9. Watson 51 

Harvie 9. Rofers 665 

Harwood v, Goodright 681 



Beetioa 

Harwood 9. Smethnrst 561 

Hasbrouck v. Tappen 258, 259 

Haslam 9. Cron 278 g 

Haslem 9. Lockwood 640 

Haslett 9. Crain 550 

Hass 9. Phila. S. S. Co. 232 b 

Hasser 9. WaUis 120 

Hastings 9. Crunkleton 656 

9. Ryder 691 

9. Stetson 420 

9. Thorley 605 

Hatch 9. Codcungton 68 a 

9. Dennis 200 

9. Dickinson 156 

9. Foster 481 

9. Hatch 297 

9. Spofford 26 

9. White 524 

Hatcher v. Briggs 550 

Hatfield 9. Thorp 691 

Hathaway v. Nat. Ins. Co. 409 

Hathom v. King 691 

Hatton 9. Bullock 64 a 

Hauck V, Single 244 

Haughton 9. Ewbank 66 

Haussknecht 9. Claypool 499 

Havard v, Davis 681 

Havemeyer 9. Fuller 414, 417 

Haven 9. Foster 123 

9. Winnisimmet Co. 73 

Havens 9. Hartford & N. H. R. R. 

Co. 224, 226 

Hawes 9. Tillinghast 481 

9. Wyatt 687 

Hawkes 9. Hawkes 681 

9. Pike 297 

9. Salter 193 

Hawkins 9. Albrigt 18 

9. Cooper 220, 473 

9. Hoffman 218, 221, 642 

9. Plomer 589, 599 

9. Ramsbottom 133 

9. Rutt 525 

Hawks 9. Hawks 135 

f. Swett 494 

Hawkshaw 9. Rawlings 529 

Hawley 9. Foote 81 

Haworth 9. Hardcastle 505 

Hay 9. Brown 77 

9. Graham 256 

9. Ousteront 607 

Haycraf 1 9. Creasy 280 a 

Hayden 9. Shed 622 

9. Smithville Mannf . Co. 232 b 

Haydon 9. Williams 440 

Haydon's Case 277 

Hayes9. Rudd 111 

9. Warren 114 



zl 



INO^ TO CASES CITED. 



BeetioQ 

Hayes v. West. Railroad Co. 232 b 

Hayner r. Cowden 414 

Haynes v. Leland 424 

V. Morgan lib 

V. Nice 529, 531 a 

V. Sinclair 577, 679 

Haynie v. Waring & Co. 212 

Hays t;. Ball 417 

V. Younglove 449 

Haythorn i;. Lawson 420 

Hayward v. Gunn 440 

v. Hague 608 

V. Leonard 104, 136 

V. N. £ng. Mut. Ins. Co. 406 

Hazard v. Loring 603 

V. Treadwell 65 

Hazelbacker v. Reeves 440 

Hazeldine t7. Walker 11 a 

Hazen v. Boston, &c. R. R. 616 

Hazleton v. Week 622 

Head v. Head 150 

Headlam v. Headley 616 

Headley v. Mildmay 277 

Heald v. Carey 642 

V. Davis 518, 527 

Heaney v. Heaney 261 

Heaps V. Dunham 317 

Heard o. Bowers 236 

V. Middlesex Canal 434 

Hearle v. Hicks 681 

Hearn v, Kiehl 31 

Heath t;. Chilton 338 

17. Hubbard 646 

V, Knapp 831, 556 

V, Sausom 172 

V. Unwin 496, 506 

V. West 614 

V, Whidden 240 

v. WiUiams 618 a 

Heath cote i;. Crookshanks 81, 519 

Hebden i;. Hartsink 520 

Heck V. Shener 136 

Heckscher v. McCrea 216 a 

Hedge v. Drew 297 

Hedges v, Tagg 575 

Hedgley v. Holt 865 

Heffner v, Heffner 463 

He^eman o. Western R. R. 221 

Heidenheimer v. Mayer 153 a 

Heiner v. Henvelman 232 b 

Heisrodt v. Hackett 620 

Hellinra v, Shaw 443 

HelmsTey v. Loader 158, 159 

Helps V. Clayton 365 

Helsby v. Mears 214, 218 

Helsham o. Blackwood 418 

Helyar v. Helyar 681 

Hemingway v. Femandes 240 



Heminway v, Saxton 
Hemmenway v. Towner 
Hemming v. Parry 
Hemmings v. Gasson 
Hemphill v. Boston 

V, McClimans 
Henderson v. Broomhead 

V, Eason 

». Mid. R. R. Co. 

V, Stevenson 

V. Wild 
Hendricks v. Keesee 
Henfrey v. Henfrey 
Henley t;. Force 
Henniker v. Wieg 
Banning ». Withers 
Henry r. Brown 

r. Goldney 

V, Jones 

c. Norwood 

17. Peters 

17. Raiman 

V. Reichert 
Henslow v, Faucett 
Hen wood v. Oliver 
Hepburn v, Auld 

V. Sewell 
Heme v. Bembow 
Herrell v. Sizeland 
Herrick v. Ben net 

V. Lapham 

r. Whitney 
Herring v. Policy 
Herschi v. Metielman 
Hersfield v, Adams 
Hervey ». Hervey 
Heslop V. Chapman 

V, Metcalf 
Hess V, Cole 
Hesseltine v. Stockwell 
Hatfield v. Central Railw. 
Hetheriugton r. Kemp 
Hewes t7. Pai-kman 
Hewins v. Smith 
Hewitt V. Thompson 
Hewlett t7. Cruchley 
Hewlins v. Shippam 
Hewrv v. Raiman 
Heydon t7. Thompson 
Heyes t7. Heseltine 
Heylin t7. Adamson 

17. Hastings 
HeymH i7. Covell 

17. Parish 
Heyward v, Lomax 
Hiatt r. Kii*kpatrick 



Mdloii 
278 
150 
11 rf 
418 
662 
431 
421 

36 
453 
216 
480 
357 
681 
280, 291 a 
533 
264 

13 

26 
179 
424 
440 
149, 601 
807, 331 
287 
605 
605 
276 
655 
331 

15 

420 

164,206 

66 
453 
211 
462 
454 
142 
141 
642 
633 
193 
642,648 
660 
195 
459 
631 
611 
172 

14 
176 
842 

18 

887, 390 

533 

657 



Hibbard v. West. Union Tel Co. 

222 a, 261 



INDEX TO CASES CITED. 



XU 



Hibbert v. Pison 
Hibbe v. Duabam 
Hick V. Keats 
Hlckey i;. Heyter 

p. Hinsdale 
Hickman v. Walker 
Hickok v. Buck 



SaeUon 

884 
662 
112 
847 
561 
342 
637 



Hickox r. Naugatuck R. R. Co. 221 

Hicks V. Bingham 533 

V. Cochran 462 

Higbee v. Rice 23, 555, 556 

Higgins V. Livermore 249 

V. Whitney 635 a 

Higginson v. i)a\\ 370 

V. York 622 

Uigham r. Baddely 605 

V. Rabbit 659 

Highmore r. Primrose 126 

Hight V. Wilson 674, 677 

Ilifer V. Hiler 121 

Hill p. Crosby 471 

V. Davis 108 

p. Featherstotihaugh 143 

p. Heat 107 

p. Manchester Waterw. Co. 483 

p. Morey 625 

V. Packard 107 

p. Salt 11 d 

V. Scales 29G 

p. Thompson 404, 505, 506 

p. W^arren 473 

p. White 131 

p. WVight 500 

Hilliard v. Cox 338 

p. Richardson 232 b 

Hillier v. Alleghany Ins. Co. 405 

Hills V. Bannister 136 

o. Place 180 b 

V. Snell 642 

Hilt p. Campbell 200 

Hilton p. Burley 135 

p. £. of Granville 250 

Hinckley p. Fowle 1 18 

Hinde p. Whitehouse 638 

Hindle p. Blades 586 

Hines p. Kinnison 226 

p. Potts 431 

Ilingham p. Spragae 614 

Hinsdale p. Bank of Orange 156 

Hinton v. Heather 455 

p, Whitehurst 357 

Hirst, Re 147 

Hiscocks p. Jones 501 

Hitchcock p. Harrington 330 

p. Humfrey 186 a 

p. North 458 

Hitchen p. Teale 86, 624 

Hitchin p. Campbell 108 



Hittson p. Davenport 
Hiz p. Whittemore 
Hoadley p. Watson 
Hoagland r. Moore 
Hoar p. Clute 

P.Wood 
Hoare p. Allen 
Hobart p. Haggett 

p. Norton 



Seetion 
510 
871 

80 
104 
521 
421 

56 
622 
382 



Hobbs p. Lon. & S. W. R. R. Co. 261 

p. Lowell 662 

Hobby p. Ruel 330 

IlobsoD p. Fullerton 575 

Hobv p. Built 142 

Ilock p. Hock 604 

Hockin p. Cooke 15 

Hocum p. Weitherick 232 a 

Hodgdon p. Dexter 210 

Hodges p. Green 687 

p. Hodges 74, 472 

p. State 414 

p. Windham 51, 56 

Hodgkiuson v. Marsden 280 

Hodgman p. Smith 481 

Ilodgskin p. Queensboroagh 243 

Hodgson p. Anderson 518 

Hodsall p. Stallbrass 263 b 

Hodsden o, Han*idge 36 

p. Lloyd 684 

Hodsdon v. Wilkins 115 

Hoffman p. Fisher 440 

p. Pitt 316 

p. Savage 665 

p. Western F. & M. Ins. Co. 408 

lioffiiagle V. Leavitt 116 

Ilogan V. Grosvenor 675 

Ilogencamp v. Ackerman 280 

Hogg V. Charlton 26 

p. Emerson 490 

p. Orgill 484 

Hoggan p. Craigie 462 

Ilolbrook p. Brown 370 

p. Dow 104 

p. Utica & S. R. R. Co. 222 

p. Vt., &c. R. R. Co. 222 

Holden v. Fitchbuig R. R. Co. 232 b 

V. Jenkins 158 

Holder v. Coates 617 

Holding p. Liverpool Gas Co. 267 

Holford V. Hatch 280, 240 

p. Wilson 105 

Holker p. Parker 141 

HoUand p. Bird 226 

p. Clark 347 

p. Holland 45 

p. Makepeace 200 

p. Russell 123 

Holliday p. Camsell 646 



xlii 



INDEX TO CASES CITED. 





Seotion 


HolliDgsworth v. Brodrick 


400 


HoUius V. Fowler 


642 


HoUis r. Fond 


296 


v. Smith 


838 


Holluter v. Ilollister 


54 


V, Kewlen 


215 


HoUowar 0. Abell 571, 
r. Turner 2 


673, 678 


!68, 268 a 


Holman v. Borough 


13 


V. Waldeu 


21 


Holmes v. Clark 


232 6 


V, Clifton 


593 


17. D'Camp 127, 


128, 520 


V. Doane 


613 


V. Fall River Rank 


620 


V. Goring 


660 


V. Holmes 


611 


V. KerrisoQ 


435 


V. Mather 


85 


». N. E. R. R. Co. 


222 


V. Old Colony B. R. 


482 


r. Peck 


144 


r. Porter 


481 


V. Seely 


627, 658 


V, Trumjwr 


172 


V. Wilson 


622 


Holt t7. Whatley 


232 a 


Holton V. Button 


330 


u, Dalj 


232 6 


V. Smith 


642 


Holyday r. Oxenbridge 


99 


Holy land, Ex parte 


689 


Holvoke V. Haskins 


317 


Homer v. Dorr 


249 


V. Fish 


448 


r. Wood 


480 


Hone t;. Mut. S. Ins. Co. 


251 



Hood V. N. Y. & N. H. R. R. Co. 210, 

222 

Hooe V. Oxley 66 

Hook V, George 464 

r. Philbrick 78 

Hoole V. Attorney-General 662 

Hooper v, Robinson 379 

9. Williams 160 

Hopcraf t v. Keyes 565 

Hope V. Harman 297 

Hopewell v. Amwell 296 
Hopkins v. Atl. & St. L. Ry. 253, 

268 6 

V, Hopkins 560 

r. Ladd 357, 358 

V. Liswell 190 

V. McGillicuddy 459 

V Richardson 124 

V. Smith 426, 483 

V. Young 236 

Hopkinson v. Leeds 589 



D6etlon 

Hopley 0. Dofresne 195 

Hoppough 0, Sti-uble 831 

Hore V. Whitmore 883 

Horn V. Amicable L. Ins. Co. 409 

V Boon 454 

V. Midland R. R. Co. 256 

V. Noel 463 

Homketh t;. Barr 673, 576 

Horsefall v. Testar 300 

Ilortero. Merchants', &c. Ins. Co. 400 

Horton t;. Saver 81 

Hoshauer v, Hoshauer 676, 688 

Hotchkiss V, Greenwood 492 

o. Lathrop 275 

V, Le Roy 139 

V. McVickar 640 

V. Nat. Shoe & L. Back 172 

V. Oliphant 275 

r. Whitten 288 

Hotham v. East India Co. 404 

Hough 9. Biree 135 

V. Patrick 654 

V. Texas, &c. R. R. Co. 232 b 

Houghtaling v. Kelderhoose 426 

Houghton V. Houghton 72 

V. Mauuf. M. F. Ins. Co. 408 

Housatonic Bank v. Laflin 189 

Househill, &c. Co. v. Neilson 490, 502 

Houstman v. Thornton 386 

Houston & Gt. N. R.R. Co. v. Graves 18 

V. Randall 230 

Houx V. Batteen 557 

Ilovey t;. Rubber Tip Pencil Co. 428 

Howard v. Daly 104 

V. Howard 330 

V. Miner 609, 610, 611 

V, Newton 86 

V. Sexton 418 

V. Witham 136 

Howard Bank o. Carson 176 

Howard Ins. Co. v. Bramer 405 

Howe V. Bowes 180 a 

9. Freeman 661 

9. Merrill 163 

9. Perry 275 

9. Saunders 444 

Howell 9. Adams 435 

9. Hart. F. Ins. Co. 426 

9. King 471 

9. L. & S. Steel Co. 282 h 

9. Mills 367 

9. Richards 800, 404 

9. Young 433 

Howes 9. Mfuiiin 118 

9. Nute 487 

Howitt 9. Estelle 644 

Howland v. Coffin 521 

9. Howland 673 



INDEX TO CASES CITED. 



xliii 



OtCtnXL 

Hozie V. Pacific Mat. Ins. Co. 400 

Hoyt V. Hadsoa City 280, 282 a 

V. WUdfire 261 a 

Huband v, Grattan 259 

Hubbard t;. Belden 104 

V. Bell 627 

V. Chenango Bank 604 

V. Cummings 367 

V. Hartford F. Ins. Co. 406 

V. Little 654, 618 

V, Norton 242 

V. Thompson 232 a 

Hubbell V. Btssell 78 

V. Rochester 614 

Hubbersty v. Ward 64 

Hubbly r. Brown 204 

Haber v. Zimmerman 64 a 

Huble 9. Clark 688 a 

Huckle V. Money 253 

Hucks 17. Thornton 890 

Huddart v. Grimshaw 496 

Huddleson v, Swope 414 

Hudson V. Harrison 892 

r. Johnson 141, 518 

r. Putney 667 

r. Robinson 24 

r. Swift 124 

Huff V. Bennett 424 

Huffmans v. Walker ' 290 

Huftalin v. Misuer 235 a 

Hughes i;. HoUingsworth 141 

p. I^rge 171 

9. Muscatine County 232 a 

V. Parks 296 

p. Thomas 434 

Hughlett r. Harris 651 

Hulett V. Soullard 113 

Hull 0, Hull 48 

HuUe p. Heightman 103, 104 

Humble v. Spears 331 

Hume P. Oldacre 229, 624 

V. Peploe 607 

Humes p. McFarlane 686 

Humfrey p. Dale 251 

Humphrey p. Moxon 203 

Humphreys p. Jones 440 

Humphries p. Huffman 657 

p. Parker 420 

Hunnicutt p. Peyton 557 

Hunt p. Bay State Iron Co. 636 

V. Bennett 263, 254, 421 

9. Carlisle 261 

p. Chambers 563 

V, Cleveland, The 219 

p. HaskeU 649 

V. Holton 642 

V. Hunt 564 





Saetkm 


Hunt p. Jones 


420 


p. Rich 


616 


p. Rousmaniere's Adm'r 


68 a 


p. Salem 


230 


V. Silk 


124 


p. Spaulding 


431 


p. Steyens 


838 


Hunter p. Agnew 


867 



p. Britts 833, 335 
V. Cochran 331 
p. French 452 
p. Hudson Riyer Iron & Ma- 
chine Co. 64 a 
V. Ring 288, 590 
Huntingdon p. Moore 339 
Huntingdon, &c. R. R. Co. o. 

English 261 

Huntington p. Brinkerhoff 432 

p. Rumnill 146 

Huntley p. Bacon 272 

p. Bulwer 143 

Huntress p. Burbank 261 

Huntsman p. Nichols 78 

Hurd p. Darling 646 

p. Fletoher 243 

Hurlburt p. Firth 645 

Hurlock p. Reinhardt 599 

Hurst p. Addington 839 

p. Parker 431, 446 

p. Rodney 240 

Huscombe p. Standing 302 

Huse p. Alexander 619 

Huson p. Dale 421, 424 

Hutehins p. Adams 106, 260 

p. Kimmel 460, 461 

Hutohinson p. Boston Gas Light 

Co. 230 

p. Hutohinson 431 

p. Stiles 357 

p. York, &o. R. R. Co. 232 6 

Hutohison p. Cullum 104 

Hutley p. Grimstone 689 

Huttemeier p. Albro 659 a 

Hutts p. Hutts 414 

Huxham p. Smith 605 

Huxley p. Berg 272 

Hyde p. Bruce 406 

V. Cookson 649 

p. Jamaica 658 

p. Lawrence 26 

p. Ix)uis. State Ins. Co. 392 

p. Stone 646 

V. Trent & Mersey Nay. Ca 210, 

219 

Hylton p. Brown 337 
Hynds v. Schenectady Ins. Co. 408 



xliv 



INDEX TO CASES CITED. 



I. 

Seetbm 

Ihl V, Forty-Beoond St., &c. R. R. 

Co. 268 b 

m. & St. L. R. R. & Coal Co. o. 

Cobb 618, 619 

p. Finnigan 261 

111. Cent. R. R. Co. v. Arnold 625 

221 

210, 216 

212 

431 

221 

222 

676 

473 

440,520 

561 

98 

454, 455 



o. Copeland 

V. Frankenborg 

V. Mitchell 

V. Phelps 

o. Phillips 

V. Read 
Ilott V. Genge 

v. Wilkes 
Ilsley 9. Jewett 

V. Stubbs 
Imason v. Cope 
Incledon v. Berry 

Ind. Cent. R. R. Co. v. Mendy 222 
Indianapolis & Cin. R. R. Co. v, 

Rutherford 222 

Indianapolis & St. L. R. R. Co. v. 

Horst 232 a 

V. Jarey 232 a 

V, Stubbs 267 

Indianapolis B. & W. R. R. Co. 



V, Risley 
Ingalls v. Bills 

V, Bulkley 

v. Dennett 

V. Lord 
IngersoU v, Jackson 

t;. Jones 
Inglebright v, Hammond 
Inglis 17. Haigh 
Ingraham v. Grigg 

V. Martin 
Ingram v. Lawson 

p. Wyatt 
Inman v. Foster 

V. McNeil 
Innis V, Crawford 
Insane Hospital v. Higgins 
Ins. Co. o. ikx>n 

t7. Brune's Assignee 

V. Newton 

V. Rodel 

0. Stimson 



291a 
222 
645 
113 
649 
244 
673, 579 
251 
447 
297 
561 
268 b, 420 
675 
424 
593 
217 
279 
387 
26 
894, 406* 
409 
405 

V. Tisdale 278 d, 839 

International & G. N. R. R. Co. 

V. Halloran 230 

Invincible, The 218 

lonides ». Pacific Ins. Co. 877 

Ii-eland v. Coulter 845 

t;. Higgins 620 

V. Johnson 209, 228 



Scctfon 

Ireson v, Pearman 144, 149 

Irish V, Cloyes 635 a 

V. Smith 680, 689 

Iron R. R. Co. v. Mowery 221, 222 

Irvine v. Hanlin 37 

Irving V, Manning 392 

V. Wilson 121 

Irwin V. Cooper 331 

o. Dearman 88, 573, 579 

Isaacs t;. Third Av. R. R. Co. 230 

Iseley v. Loveioy 414 

Isherwood v, Wnitmore 611 a 

Israel t;. Argent 363 

r. Benjamin 159 

0. Brooks 455, 458 

V. Clark 221 

V, Rodon 684, 685 

Isteed V. Stonely 240 

Ives V, Van Epps 136 

Ivey V, Young 11 « 

Izett V. Mountain 220 



J. 



J. G. V, H. G. 
Jacaud v. French 
Jack V. Martin 
Jack^v. Henderson 

v. Stimpson 
Jackson v. Ambler 

V, Anderson 

V. Ayres 

V. Bartlett 

V. Betts 

V, Bodle 

o. Blanshan 

V. Bradt 

v. Brownson 

p. Bull 

V. Burleigh 

V. Bush 

V. Carpenter 

V. Chase 

V, Cbristman 

V. Combs 

». Cooley 

0. Creal 

V. Cuerden 

v. Davis 

V. De Waltz 

V. Deyo 

V. Fuller 

V. Graham 

0. Green 

V. Hale 

V. Harrington 

V. Harsen 



64 

480 
564 
684 
454 
78 
642 
305 

141, 518 
680, 681, 694 
297 
679 
317 
656 
457 
453 
305 
367 
329 

810, 677 
3:)4 
305 
805 

805, 325 
305 
805 
325 
829 
805 
829 
661 
831 
805 



INDEX TO CASES CITED. 



xIy 



JackBon v. Hill 
V. Hinman 
o. Laroway 
V. Laughead 
p. Legrange 
V. Loomis 
V. Marsh 



SwtkA 
685 
805 
310 
329 
672, 694 
337 
244 



o. Mass. Mat. &c. Ins. Co. 405 

p. McLeod 325 

p. Norris 305 

p. Parkhurst 825, 331 

p. Perkins 300 

p. Randall 833, 337 

p. Reynolds 305 

p. Richards 195 

p. Rosevelt 356 

p. Rowan 325 

p. Sample 317, 325 

p. Scissam 805 

p. Sec. At. R. R. Co. 230 

p. Sbillito 659 

p. Sidney 817 

p. Sisson 381 

p. Smithson 230 

p. Stackhonse 829, 330 

p. Stewart 305 

p. Styles 305 

V. Thompson 672, 679 

p. Van Dusen 674, 677 

V. Vandyke 694 

p. Vickory 694 

p. Vosbnrg 805, 308 

V. Walker 305 

p. Warwick 136 

p. Wheeler 325 

p. Whitford 305 

p. Wilsey 325 

p. Winne 460 

Jackson Ins. Co. p. Stewart 437 

Jacob V. H ungate 172 

Jacobs V. Humphrey 583 

V. Pollard 115 
Jacobos p. St. Paul & Ch. R. R. 

Co. 221, 222 

Jacoby v. Laossatt 265, 644 

Jaffray p. Frebain 133 

Jamaica Pond t;. Chandler 665 

James v. Biddington 40, 55, 579 

9. Browne 89 

p. Campbell 85 

p. Cohen 688 

p. David 81 

p. Hackley 852 

p. Marvin 688 

p. Phelps 455 

p. Roberts 801 

Jansen p. Ostrander 280 

Janaon p. Brown 630 





Seetiim 


Jaqna v. Montgomery 


172 


Jarvis v. i.ean 


539, 662 


Jayne p. Price 
Jefferson v. Jefferson 


311 


656 


Jeffery v. Bastard 


586 


Jeffreys p. Gurr 


114 


Jefts p. York 


123 


Jenckes v. Smithfield 


689 


Jencks v. Phelps 


431 


Jenkins v. Hopkins 


83,242 


p. Phillips 


lid 


p. Plume 


347 


p. Prichard 


309 


p. Troutman 


584 


p. Tucker 


108, 114 


Jenks V. Coleman 


222 a 


Jenks's Case 


359 


Jenner v, Joliffe 


642 


Jennincfs v. Camp 
V. Kibbe 


103,104 


489 


p. Maddox 


272 


p. Major 


605 


p. Pierce 


492 


p. Rundall 


• 368 


Jerritt v. Weare 


430 


Jersey City v. O'Caliagnan 


261 


Jervis ». Sidney 


582 


Jesser v. Gifford 


469 


Jeune p. Ward 


862, 363 


Jevens v. Harridge 


239 


Jew V. Wood 


306 


Jewell p. Schroeppel 


104 


Jewett, Re 


483 


p. Davis 


27 


p. Foster 


626 


JoanneSf Count p. Bennett 


421 


p. Jennings i 


r 424 


Joch p. Dankwardt 


267 



Jochumsen v. Suffolk Sav. Bk. 518 

Joha r. CuiTie 11 6 

Johns V. Dodsworth 277 

p. Marsh 454 

p. Stevens 539 

Johnson, Ex parte 186 

p. Alston 142 

p. Brailsford 881 

p. Brown 417, 421 

p. Browning 450, 457 

p. Concord R. R. Co. 222 

p. Courts 271 

p. Farwell 431 

p. Fox 584 

p. Futch 306, 550 

p. Hudson 415 

p. Irasburg 232 a 
p. Johnson 58, 119, 158, 520, 676 

p. Jones 566 

p. Kennion 205 



xlvi 



INDEX TO CASES CITED. 





Sootioii 


flMftlon 


Johnson o. Lawson 


462 


Jones V. Moore 842, 440 


v. Lewb 


599 


17. New Eug. &o. S. S. Co. 212 


V, Mason 


63, 158, 565 


V. Nichols 449 


V, McConnel 


85 


V, Perchard 580 


0. McGruder 


64 a 


17. Pitcher 219 


V, Keale 


561 


V. Ryde 622 


V, Peck 


230 a 


V. Ryder 122 


V. Perry 


268 a, 6 


V. Savage 196 
t7. Smith 162 


V. Smith 


284, 431 


V. Spiller 


108 


r. Stevens 188, 412, 417, 424 


V, Stone 


587 


r. Thompson 55, 56 


». Sumner 


265, 649 


17. Tumour 165 


V. Thoroughgood 


568 


r. Voorhees 215, 221 


V. Ward 


66,380 


V, Warner 244 


t7. Weed 


519, 523 


17. Williams 530 


r. Weedman 


253 


V. Wood 582 


v. WeUs 


267 


t7. Wvlie 82 


V, Williams 


648 


t7. Yates 480 


V. Wollver 
Johnson's Estate 


562 


Jones Man. Co. o. Manufacturers' 


347 a 


Mut. Ins. Co. 399 


Johnston v. Brannan 


28 


Jonge Bastiaan, The 106, 260 
Jor^mion v, Pierpont 624 


V. Columbian Ins. Go 


>. 394 


V, Johnston 


684 


Jordain t7. Wilson 240 


V, Marlin 


455 


Jordan v. Eve 242 


Johnstone v. Sutton 


453, 454 


V, Fall River Railroad 221 


JoUie r. Jaques 


511 a, 514 


17. Wilkins 36, 37 


Jones, Re 


147 


Jory 17. Orchard 322 


V, Andover 


232 a 


Joyner v, Egremont 121 


V, Arthur 


601 


Judah t'. Kemp 645 


V. Boyce 


221 


Judd V. Fox 560 


V. Bnnley 


112, 118 


Judson V. Adams 481 


p. Brooke 


203 


t7. Cope 500 
0. Lake 672 


V. Brooklyn, &c. Ins. 


Go. 392 


V, Brown 


88 


r. Western R. R. Go. 210 


V. Clayton 


592 


Jupe 17. Pratt 498 


V. Commonwealth 


374 


Jutte V. Hughes 635 a 


V. Coiioway 


448 


Juxon p. Thornhill 76 


V. Darch 


166 




r. Dodge 


560 




V. Edwards 


191 


K. 


V. Fales 


188 




17. Fort 


644 


Kain v. Smith 232 b 


V. Givin 


449, 452 


Kaley v. Shed 272, 276, 635 a 


V, Granite Mills 


232 6 


Kampshall v, Goodman 440, 441 


r. Green 


259 


Kane v. Hibemia Ins. Co. 408 


V. Habersham 


674 


17. Sanger 240, 293 
Kannen v. McMullen 142 


». Hart 


645 


17. Hibbert 


136 


Kansas Pac. R. R. Co. e. Nichols 222 a 


V. Hill 


655 


Katz V. Messinger 441 


V, Hoar 


108, 120 


Kaucher v. Blinn 414 


V, Hoey 


252 


Kavanagh v, Gudge 627 
Kay w. Duchesse de Pienne 130 


V. Hunter 


485 


V. Insurance Co. 


400 


Kayet7. Waghome 28 
Kean t7. McLaughlin 418 


v. Kennedy 


520 


r. Kitchen 


95 


Keamey».B.&W. R. R.Corp. 278 A 
t7. Farrell 466 


r. Mars 


158 


V, Marsh 


824 


17. King 13, 15 
Keams v. Keams 688 a 


v. Morgan 


159, 160 



INDEX TO CASES CITED. 



xlvii 



KeaiBlake o. Morgan 
Keav 0. Goodwin 
Keek's Case 
Keeble v. Hickeringill 
Keech v. Hall 
Keen v. Batshore 

V, RufE 
Keene v. Lizardi 

V. Tbompeon 
Keep V. Goodrich 
Keeton v, Keeton 
Keezeler v. Thompson 
Keigwin v. Keigwm 
Keith V. Granite Mills 



8«ctioii 

30 

615 

104 

254,622 

829 

81, 126 

417 

272 

124 

72 

487 

258 

676 

2826 



9. Quincy M. F. Ins. Co. 408 
Kell 9. Nainby 189 

Kellam 0. Janson 98 

Kellenberger v. Stortevant 614 

Kellej V. Boston Lead Co. 282 b 

V. Donnelly 578, 576 

0. Dntch Church of Sche- 
nectady 244 
o. RUey 111, 185, 256 
V. Sage 455 
V, Silver Spring Bleaching 

Co. 282 a 

V, Swift 596 

Kellogg V. Cnrtis 172 

V. Gilbert 141, 518 

V. Ingereoll 242 

9. Mabin 242 

r. Northampton 662 

V. Richards 28, 80 

V, Robinson 240 

Kellow V. Rowden 859, 860 

KeUy V. Hendricks 881 

V. Johnson 78 

0. Lafitte 421 

Kelly's Case 662 

Kelsey v, Griswold 644 

V. Remer 242 

Kemble v. Farren 257, 258 

9. MiUs 195 a 

9. Rhinelander 406 

Kemp 9. Burt 144 

9. Finden 114 

Kempland 9. Macaoley 584, 593 

Kempshall 9. Goodman 440 

Kendall 9. Bay State Brick Co. 624 

9. Boston 230 

9. Stone 258, 255, 418, 428 

Kendrick 9. McCrary 572, 576 

9. Tarbell 69 

Kenebel 0. Scraf ton 684 

Keniston 9. Little 629 

Kennard v. Burton 94, 267 

Kennebec Prop'rs 9. Bonlton 277 

V. CaU 555, 557, 619 



Beotioa 

Kennebec Propr's 9. Laboree 480, 457 

9. Springer 23, 480, 555, 557 

Kennedy 9. Duncklee 584, 629 

9. Motte 202 

9. N. M. R. R. Co. 253 

9. New York 230 

9. Newman 241 

9. Shea 5S»5 

9. Strong 648 

9. Way 85 

9. Whitwell 261 

Kenner 9. State 158 

Kenney 9. Norton 244 

Kennison 9. Merrimac Ins. Co. 405 

Kennj 9. Clarkson 879 

Kennck 9. Kenrick 44 

Kensington 9. Inglis 389 

Kent 9. Bonney 420 

9. Bomstem 124 

9. Kicards 141 

9. Waite 659 a 

Kepliuger 9. De Yonng 496 

9. Griffith 159 

Kerbey v. Denby 270 

Kerr 9. Mount 629 

9. Osborne 119 

9. Shaw 248 

9. Wilan 216 

Kershaw 9. Bailey 421 

Kelchum 9. Brennan 560 

Kelsev's Case 867 

Kerwhacker 9. C. C, &c. R. R. Co. 280 

Kester 9. Stokes lib 

Keyes 9. Hill 185 

9. Keyes 463 

9. Stone 104 

Keys 9. Powell 288 

Keyworth 9. Hill 642, 647 

Kibbe 9. Ditto 487 

Kidd 9. Belden 561 

9. Fleek 426 

9. McCocmick 261 

Kidder 9. Parkhurst 421, 454 

Kieffe 9. Imhoff 659 a 

Kiff r. Youmans 258 

Kilbom 9. Re wee 618 

Kilbum 9. Adams 548, 660 

Kille 9. Fee 297, 333 

KiUea v. Faxon 282 b 

367 
482 
408 
658 
215 
561, 570 
520 
240 
426 



axon 
Kilne 9. Beebe 
Kilshaw 9. Jukes 
Kimball v. ^tna Ins. Co. 

9. Cocheco R. R. 

9. Rutland R. R. 

9. Thompson 
Kimball, The 
Kimpton 9. Walker 
Kincade 9. Bradshaw 



xlviii 



INDEX TO CABBS CITED, 





DMuOD 


Kincaid v. Howe 


11a 


Kinder v, Shaw 


644 


King V. Baker 


570, 619 


V. Bams 


556 


V. Bridges 


594 


V, Colvin 


454 


V, Finch 


602 


V. Hutching 


109 



V. Lamoille Valley By. Co. 102 

V. Milsom 163, 172 

V. Paddock 136 

V. Phippard 96, 633 

V. Ramsay 280 

i;. Sears 114 

V, State Mut., &o. Ins. Co. 405 

V, Waring 419, 421 

King of France v, Morris 37 

Kingman v. Hotaling 155 

V. Pierce 65, 67 

Kingsbury v. Gardner 403 

Kingsford v. Marshall 391 

Kingsley v. Bill 75 

V. ^ew Eng., &c. Ins. Co. 399, 406 

Kingston v. Grey 348 

y. Phelps 72, 81 

Kinlyside o. Thornton 655, 656 

Kinnaird, Lord v. Saltoon 298 

Kinney v. Cent. R. R. Co. 222 

Kinsey ». Heyward 432 

Kirby v. D. of Marlboroagh 534 

V. Sisson 156 

p. State 41,847 a 

Kirk V, Glover 141 

V, Hiatt 64 a 

Kirke v. Kirke 681 

Kirkman v. Hargreaves 642 

Kirkpatrick v. Ix>wning 265 

V. Kirkpatrick 452, 453 

Kirton v. Braithwaite 606 

Kist 0. Atkinson 136 

Kittle V. Merriam 488, 490 

Kleine v. Catara 78, 261 a 

Kleinwort v, Shepard 388 

Kline v. Husted 648 

V. Kline 528 

Klink V. Colby 418 

Klump t7. Dunn 269 

Knapp V, Lee 136 

V. Maltby 259 

V. Salsbury 85, 625 

Knell V. U. S., &o. S. S. Co. 215 

Knickerbocker L. Ins. Co. v. Peters 409 

Kniffen v. McConneU 273 

Knight V. Bennett 565 

V. Foster 424, 425 

V, Globe, &o. Co. 467 

V. Hughes 113, 114 

V. Witeox 573, 579 



KnobeU v. Fuller 425, 426 

Knolls V, Bamhart 297 

Knott 9. Digges 226 

V. Farren 443 

V. Sargent 462 

Knower p. Wesson 461 

Knowles o. Dow 251 

p. Eastham 279 

V. Michel 126, 127 

V. Scribner 153, 426 

Knowlton v. Bartlett 580 

V. Congress, &c. Ill 

V, Johnson 636 

t7. Reed 481 

Knox 9. Jenks 23 

0, Kellock 554, 556 

Koch V. Coots 584 

Kocourek v. Marak 801 

Koob V. Amman 640 

Koops, Ex parte 488 

Kortz V. Carpenter 248 

Koster p. Innes 382 

p. Jones 886 

p. Noonan 230 

p. Reed 386 

Kountz V, Brown 253 

Krantz p. White iS2 b 

Kraus p. Arnold 602 

Kremelberff p. Kremelberg 54 

Kromer v. Heim 31 

Krone p. Krone 430, 444 

Kuhn p. Jewett 230 

p. North 253 

Kuhns p. Bowman 330 

Kupfer p. Augusta 66 

Kyle p. Gray 642 



L. 



Lacey p. Forrester 


178 


Lackwood p. Sturdevant 


241 


Laclouch p. Towle 


648 


Ladd p. Moore 


638 


p. North 


560 


Lade p. Shepherd 


662 


Lafayette, &c. R. R. Co. v. 


Adams 222 


Lafonde p. Ruddock 


437 


Laidlaw p. Organ 


397 


Laing p. Colder 


215 


p. Meader 


605 


I^ake p. Billers 


597, 629 


p. Columbus Ins. Co. 


391 


p. Reed 


172 


Lake Shore & M. S. R. R 


. Co. V. 


Clemens 


232 a 


p. Ellsev 
p. LaveUey 


561 


232 6 



INDEX TO CASES CITBD. 



xliic 



8eetk>ii 

Lake Shore & M. S.R.R. Co. v. Per- 
kins 222 a 
Lake Superior Iron Co. v, Erick- 

8on 2S2 6 

Lakin v. Ames 627 

Lalor V. Ch., B. & Q. R. R. 2d2 b 

Lamb v. Burnett 95 

V. Camden 215, 219 

0. Durant 878 

V, Johnson 561 

V. Lathrop 610 

V. Mills 567 

V. Western R. Co. 218, 219 

Lamb's Case 415, 416 

Lambert o. Atkins 246 

V. Pack 166 

V, Sandford 141 

Lamine v. Dorrell 265 

Lamos v. Snell 424 

Lamotte v, Wisner 561 

Lampman v. Hammond 575 

Lanauze p. Palmer 192 

Lancaster v. Washington L. Ins. 

Co. 278 d 

Lancaster Co. Bank v. Moore 369 

Lane p. Applegate 29, 421 

o. Cotton 68 

p. Ironmongers 64 a 

V. Reynard 803, 331 

Lang p. Rodgers 453 

Langdon p. Bruce 622 

p. De Groot 505 

p. Potter 141, 838, 518, 555 

Lanning v, Christy 424 

I^nphier p. Phipos 144 

Lanter r. McEwen 418, 420, 425 

Laphara p. Barnes 113 

La Place p. Aupoix 642 

La Point p. Scott 35 

Lapsley p. Grierson 462 

Larmon p. Carpenter 279 

Lamed p. Buffington 269, 275, 424, 

425, 426 

p. Lamed 662 

Larrence p. Lanning 455 

Larsater p. Garrett 470 

Larue p. Slack 817 

Latham p. Latham 44 

0. Rutley 209 

Lathrop p. Am. Emigrant Co. 303 

p. Blake 637 

V. Cook 561 

Latkow p. Earner 594 

Laugher p. Brefitt 265 

Laughlin p. Heer 357 

Laugh ton p. Atkins 672, 681, 692 

Lavender p. Adams 681 

o. Hudgens 454 



Seetkni 

Layeroni p. Dmry 219 

Law p. Cross 68 

p. Harwood ^ 433 

V. Wilgees 651 

Lawler p. Androscoggin R. R. Co. 232 b 
Lawrence p. Columoian Ins. Co. 404, 

405,406 

V. Farley 297 

p. Hagerman 456 

p. Mut., &c. Ins. Co. 409 

p. Obee 473 

p. Ocean Ins. Co. 894 

p. Pond 816 

p. Potts 142 

p. Ralston 190 

p. Winona R. R. Co. 212 

Lawson p. Bank of Salem 193 

p. Loyejoy 367 

p. Mon'ison 683 

p. Sherwood 186 

Lawton p. Sun Mut Ins. Co. 390 

p. Sweeney 129 a, 255 

Lazarus p. Ely 277 

Leach p. Beardslee 251 

p. Marsh 370 

Leadbetter p. Fitzgerald 618 a 

Leader p. Barry 130, 362, 461 

p. Moxon 431 

League p. Waring 520, 523 

Leaird p. Davis 459 

Leame p. Bray 84 

Leatherdale p. Sweepstone 602 

Leathers p. Ins. Co. 406 

Leavenworth R. R. Co. p. Rice 253 

Leavitt p. Comer 78 

I^ebanon p. Olcott 473 

Ije Barron p. E. Boston Ferry Co. 221 

Le Blanke p. L. & N. W. R. R. Co. 261 

Le Cheminant v. Pearson 402 

Le Clerq p. Gallipolis 622 

Ledgai*d p. Thompson 295 

Leduc p. Prov. Ins. Co. of Ca. 392 

Ledwith v. Catchpole 99 

Ledyard p. Jones 599 

Lee p. Cooke 332 

p. Gray 382 

p. Howard, &c. Ins. Co. 406, 408 

p. Muni^ridge 114 

o. Scudder 690 

r. Shore 117 

p. Woolsey 93, 267 

Leech p. Baldwin 220 

Leery p. Groodson 118 

Leeson p. Holt 216 

Le Febre p. Detmit 301 

Lefferman p. Renshaw 519 

Leffingwell v. White 105 

Le Frave p. Richmond 296 



d 



1 



INDEX TO CASES CITED. 



Legg V. BeDion 
Legge V. Legge 

0. Thorpe 
Legcett V. Hyde 
Legh 9. Hewitt 

V. Lewis 



Sactton 
321 
6o6 
195, 205 
482 
105 
259 



Lehigh Coal, &c. Co. v. Mohr 68 a 
Lehigh Valley Ry. Co. v. McFarlan 539 

Lehman i;. Bradley 357 

Lehiibeuter v. Holthaus 494 

Lehr v. Taylor 640 
Leicester, £arl of, v. Walter 275, 424, 

426 

Leigh V. Shepherd 567 

Leighton v, Wales 259 

LeishernesB v. Berry 614 

Leland v. Farnham 161 

V. Stone 259 

Lemayne r. Stanley 674 

Lemon r. Hayden 662 

Lempriere v. Humphrey 626 

Lenox v. Leyerett 183 

V. United Ins. Co. 394 

Lent V. Padelford 66 

Leonard v. Allen 417, 420, 424 

V. Gary 196 

V. Leonard 371, 659 a 

V, N. Y., A. & B. Tel. Co. 211, 

222 a, 261 

V. Pitney 435 

V. Tidd 644 

p. Trustees, &c. 523 

Le Sage v. Coussmaker 524 

Lesem v. Neal 433 

Lesher v. Levan 295, 296 

Leslie v. Rounds 232 b 

Lethbridge v. Wint«f 625 

Leveck v, Shaftoe 478 

Le Veux v, Berkeley 437 

Levi V. Essex 204 

V, Lynn & Boston R. Co. 211 

V. Wdterhouse 2)8 

Levy V. New Orleans, &c. Ins. Co. 390 

». Peters 190 

V. Wilson 158 

Lewes's Trusts 278/ 

Lewis V. Alcock 584 

V. Alexander 431 

V. Campbell 113 

V. Chapman 418, 421 

V. Cosgrave 199 

V. Crockett 236 

t;. Davis 448 

V. Farrell 452 

V. Gamage 518 

V. Higgins 26 

p. Hillman 149 

r. Hoover 87 



Lewis V, Jones 

p. Levy 

V. Lewis 

9. Maris 

V. Marling 

V, Nones 

p. Overby 

p. Feake 

V. Peytarin 

p. Ponsford 

p. Price 

p. Rucker 

V. Sumner 

p. Thatcher 

p. Trickey 

p. Woodfolk 
Lewis's Appeal 
Lewis's Ileirs p. Executors 
Leyfield's Case 
Liardet p. Johnson 
Libby p. Murray 
Lide p. Lide 
Lienow p. Ritchie 
Life Ins. Co. p. Terry 
Liford's Case 
Liggins p. Inge 
Ligbtbody p. Ontario Bank 
Lightly V. Clouston 
Lillie p. Lillie 
Lilly p. Come 
Limbery p. Mason 
Linard p. Crossland 
Lincoln p. McLaughlin 

p. Saratoga R. R. Co. 



80,526 
421 

677,678 
694 
501 
528 
296 
262 
156 
618 
471 
381 

141, 147 
249 
108 
243 
79 
672 
800 
490 
561 
688 
616 
409 
619 
475 
522 
108 
681 
287 
681 
618 
634 
268/' 



p. Taunt. Copper Mannf. 78 

Lincoln & Ren. Bank p. Page 190 

Lindenberger p. Beall 191 

Lin do p. ^lisario 463 

Lindon p. Hooper 120, 265 

Lindsay p. Stem 494 

Lindus p. Brad well 161 

Line p. Blizzard 801 

Linford p. Lake 625 

Lingen p. Lingen 150 

Lingin fetter p. Linginfetter 683 

Linnehan p. Sampson 230 

Linningdale p. Livingston 104 

Linsley p. Bushnell 253, 268 a 

p. Lovely 64 a, 251 

Lion p. Burtis 333 

Lipe p. Eisenlerd 572, 579 

Liscom p. Boston Mut. Ins. Co. 407 

Litka p. Wilcox 651 

Little p. Blunt 437, 439, 441 

p. Libby 430, 557 

p. Megguier 430, 557 

p. Palister 616 

p. PhoBuix Bank 195 a 



JSDSX TO CASES CITED. 



li 



Saotion 

Little V. Rogers 478 

Littledale p. Dixon 897 

V. Lord Lonsdale 232 a 

LiUlefield v. Shee 114 
Little Bock & Ft. S. R. R. Ck>. v. 

Duffey 232 5 

Littler v. Holland 235 

Livermore v, Claridge 533 

V. Johnson 448 

Livingston t;. Delafleld 398. 

V. Md. Las. Co. 252 

V. Rogers 72 

V. Woodworth 496 

Lloyd V. Archbowle 478 

V. Jewell 136 

r. Maand 442 

r. Waterford & L. Ry. Go. 215 

V. Wiffney 434 

Loader r. Kemp 245 a 

Lobdell r. Hopkins 609 

Locke 9. N. Amer. Ins. Co. 879 

Locksmith v, Creswell 641 

Lockwood V. Crawford 199 

p. Lockwood 491 

V. Middlesex Mut. Ins. Co. 377, 

408 

p. Perry 561 

Lockwood's Case 138 

Lockyer v. Offley 390 

Loeffner v. State 873 

Loeschman p. Machin 640 

Loftos p. Union Ferry Co. 221 

Logan p. Austin 85 

p. Houlditch 644 

p. Murray 675, 576 

Lohmiller p. Ind. Ford Water P. 

Co. 472 

Loker p. Damon 256, 261 

Lomax p. Lomax 461 

Londonderry p. Chester 460 

Long p. Bailie 156 

p. Billings 586 

p. Hebb 641 

p. Ramsey 295, 296 

p. Sindare 244 

p. Woodman 86 

p. Zook 674 

Longcbamp p. Fish 678 

p. Kelly 102 

p. Kenny 118 

Longdill p. Jones 587, 588 

Longford p. Eyre 678, 694 

Longworth p. Mitchell 601 

Lonsdale p. Church 263 

Loomis p. Wilbur 656 

Lord p. Baldwin 478 

p. Chadboume 196 

p. Dall 405, 409 



Lord p. Ferrand 

p. Hall 
Lord Cloncurry's Case 
Lord Ellenborough's Case 
Lord Galway p. Mathew 



8«etion 

516 

65, 160 

45 

45 

485 



Lord Kinnaird p. Lady Saltonn 298 

Lord Peter p. Heneage 642 

Lord Suffield p. Bruce 107 

Loring p. Bacon 466, 473 

p. Cook 605 

p. Cunningham 347 

p. Gumey 251 

p. Neptune Ins. Co. 393 

Losee p. Buchanan 467 

p. Dunkin 199 

Lotan p. Cross 614 

LoUirop p. Snell 109 

Loud p. Citizens', &c. Ins. Co. 406, 

408 
Lou^her p. Williams 24J 

Louisiana Bank p. Bank of U. S. 172 
Louisville & N. R. R. Co. p. Blair 232 b 
V. Sickings 222 

Louisville, N., A. & C. R. R. p. 

Boland 232 a 

Loundsbury p. Protection Ins. Co. 408 

Love p. Hall 142 

Loveden v. Loveden 40, 41, 44 

Lovejoy p. Jones 640 

p. Richardson 295 

p. Whipple 199 

Lovelace r. Reignolds 544 

p. Reynolds 508 

Loverine p. Levering 51 

p. Mercantile Ins. Co. 394 

Lovett p. Bispham 454 

Low c. Elwell 98 

p. Nolte 75 

Low's Case 22 

Lowber p. Shaw 203 

Lowden p. Goodrick 89, 91, 278 

Lowe p. Chifney 172 

p. Govett 632 

P. Joliffe 691, 091 

p. Miller 646 

r. Peers 259 

Lowe's Patent 492 

Lowell p. Gage 108 

p. Lewis 489, 494, 505 

p. Martin 642 

V. Middlesex, &c. Ins. Co. 406 

p. Spaulding 472 

Lowfield p. Bancroft 277 

Lowndes p. Anderson 118 

Ix>wrence p. Robertson 242 

Lowrey p. Murrell 522 

Jx)wry p. Russell 251 

Loxley p. Jackson 681 



lii 



INDEX TO CASES CITED. 





SeotioD 


Loyd V. FinlayBon 


838,339 


V, Harris 


75 


Lubbock V. Trib6 


114 


Lucas V. De la Cour 


478 


V. Nichols 


419 


t;. Novosilieski 


528 


V. Wasson 


646 


e. Worswick 


123 


Ludden v. Leavitt 


661,637 


Lukin V. Godsall 


474 


Luudie v. Robertson 


107 


Lush V. Druse 


261 


Lutterell's Case 


544 



Lycoming F. Ins. Co. o« Jackson 405 

Lyford v. Toothaker 616 

Lyle V. Clason 414 

V. Ellwood 462 

Lyman r. Brown 26 

o. U. S. Rank 520 

Lynch r. Commonwealth 145 

V. Hamilton 396 

V. Nardin 94, 232 b 

Lynde r. Knight 267 

Lyndsay v. Conn., &q. B. R. Co. 222 

Lynn v. Bruce 31 

Lyon V. Annable 120 

V. Mells 405 

V. Odell 528 

V. Smith 678 

Lysaght v. Bryant 186 

V. Walker 533 

Lyte r. Peny 119 

Lytle v. Crum 561 



M. 



McAlezander v. Harris 


275 


McAllister p. Hammond 


226 


V. Reab 


136 


0. State 


373 


McAlraont o. McClelland 


269 


Mc Andrew o. Bell 


380 



Mc Andrews v. Electric Tel. Co. 211, 

222 a 

McArthur v, Campbell 75 

v. Goddin 430 

V, Howitt 561 

r. Lord Seaforth 261 

V. Luce 123 

V, Sears 219 

McAulay o. Birkhead 579 

McBee v. Fulton 421, 424, 426 

McBride v. McLaughlin 253 

McBumey i». Cutler 626 

McCall V, Sun M. Ins. Co. 392 

McCandlesso McWha 232 a 

McCardle v. Barricklow 539 a 



BeetioD 

McCartee v. Camel 278/ 

McCarthy, Re 147 

V. Portland Seoond Par. 232 b 

V. Terre Haute, &c. R. R. Co. 210 

McCawley o. Fumess R. R. Co. 211 

McClintick v. Cummins 302 

McClure v. Burton 11 a 

t«. Dunkin 263 

». P. W. & B. R. R. Co. 222 

McCluskey v. Providence, &c. Lis. 

Co. 405 

McComb r. Ernest 492 

t;. Wilber 78 

McCombie v. Davies 642 

McConnell v. Brown 297 

McCoon r. Smith 363 

McCormick v. Hudson Riv. Railw. 221 

t;. Manny 490 

V. Sisson 454 

McCoy V. Keokuk, &o. R. R. Co. 222 a 

McCready v. S. Car. R. R. Co. 230 

McCrillis v. Hawes 648 

McCue r. Ferguson 417 

McCulIough V. Irvine 656 

McCurry r. Hooper 371 

McCutcnin r. Bankston 484 

McDiarmid v. Caruthers 624 

McDill r. McDill 296 

McDonald v. Black 68 n 

V, Holmes 560 

t;. Law, &c. Ins. Co. 409 

o. Lindall 660 

V. McDonald 448 

». Rooke 454 

McDonough r. Gilman 472 

McDougall V. Robertson 79 

McDougle V. Royal Exch. Ass. Co. 391 

McDowell 0. Blackstoue Canal Co. 538 

V. Fraser 397 

V. Hendricks 338 

McElroy v. Nashua, &c. R. R. Co. 222 

McElwee v. Ferguson 689 

McFadden v. Maxwell 207 

McFarlan o. McLellan 561 

McFarlin v. Essex Company 543 

McFeely v. Scott 839 

McGary v. Hastings 243 

McGee v. Prouty 518, 527 

McGill r. Ash 216 

V, Rowand 221 

McGinley v. U. S., &c. Ins. Co. 409 

McGrath v. Merain 232 a 

McGregor v. Cleveland 478 

McGurn v. Brackett 453, 454 

Mclniffe v. Wheelock 606 

Mclntyre o. Trumbull 580 

Mclver v. Humble 239 

L McKay v. Ford 421 



INDEX TO CASES CITED. 



liii 



McKee v. Manioe 
McEeitban v. McGill 
McKenire r. Fraser 
McKem v, Calvert 
McKinley o. McGregor 
McKinney v. Clark 

r. Neil 

17. Rhoades 

r. Snyder 
McKinstry v. Solomons 
McLachlan v. Evans 
McLaughlin v, Cowley 
McLean v. Dunn 

0. McBean 

V. Piedmont Ins. Co. 



115 
346 
310/679 
577 
562 
404 
222 
297 
441 
73 
118 
421 
59,61 
357 
377 



McLellan o. Bank of Cumberland 453 

r. Crofton 11 e, 113, 445, 447 

McLemore o. Powell 202 

McLeod V. M*Ghie 649 

V. Wakley 418 

McMahon v. Henning 232 b 

V. Ryan 688 

McManus v. Crickett 68, 621 

V, Lancashire, &c. Ry. Co. 222 a 
McMaster v. Merrick 532 a 

r. Pa. R. R. Co. 210 

McMerty v. Morrison 430 

McMurtry v, firown 295 

McNaghten's Case 373 

McNair v. Gilbert 156 

McNamajra v. Draft 48 3 

V, King 89, 253, 269 

McNeil c. Perchard 587 

McOmber o. Chapman 432 

9. Parker 251 

McPadden v. N. Y. Cen. R. R. Co. 221 
Mcpherson v. Chedeall 412 

V. Daniels 414 

V. Rathbone 484 

McQueen, Re 78 

V. Fletcher 528 

V. Gt. West. Ry. Co. 219 

McRee v. Copelin 278/, 355 

McTavish v. Carroll 658 

Macdonald, &c. See ''McDonald," &c. 
Maoe V. Cadell 130 

MacheU v. EUis 642 

V, Kinnear 478 

V. Temple 678 

Machu V. Lond. & S. W. R. Co. 232 b 
Macklin r. Waterhouse 216 

Macy V. Whaling Ins. Co. 251 

Maddoz v. Miller 365 

Mad River & L. E. R. R. Co. v. 

Fulton 213 

Magee o. Scott 644 

Mi^llan Pirates 219 

Magne v. Seymour 592 



Magnin o. Dinsmore 
Ma^rath v. Browne 
Main V. Ryder 
Mainwaringr. Mytton 

V, Newman 
Maitland v. Goldney 
Major V, Pulliam 

V. Williams 
Malcom o. Spoor 
Mallory o. Aspinwall 



Bflodon 

218, 219 
577 

674,688 
205 
478 
424 
253 
688 
615 
297 



Manchester Bank v. Fellows 139, 188, 

193 

V. White 188, 193 

Mandeville v. Parker 678 

17. Reynolds 141 

9. Wilson 445, 447 

Maneely o. M'Gee 520 

Manistee, The 392 

Manly v. Field 573, 575 

Mann v, Barrett 88, 573 

V. Lang 847 

». Lovejoy 565 

V. Marsh 529 

V, Stephens 240 

Manning v. Duke of Argyle 516 

V. Lunn 605 

V. Monaghan 642 

9. Westenie 530 

Manny v. Jagger 494 

Mansfield Coal, &c. Co. v. Mc- 

Enery 232 b 

Manson v. Felton 441 

Mansur v. Blake 545 

Mantel v. Gibbs 802 

Manton v. Gammon 104 

V. Manton 501 

Mantz V. Collins 583 

Manvell v. Thomson 88, 573 

Mapes V. Weeks 275 

Mara v, Quin 346 

Marble v. Ross 632 a 

V, Worcester 256 

Marbourg v. McCormick 433 

n. Smith 456 

Marchington r. Vernon 109 

Marin r. Palmer 183 

Mark v. Gelzhaueser 426 

V, Nat. F. Ins. Co. 379 

Markham v. Fawcett 253 

V. Jaudon 261, 649 

Markland v. Crump 240 

Markle v. Hatfield 124, 164, 522, 523 

Marks v. Borum 437 

Marlow v. Pitfield 865 

Marquis of Stafford v. Coyney 662 

Marr v. Boothby 619 

Marriott o. Hampton 121 

9. Stanley 282 a 



liv 



INDEX TO CASES CITED. 



Marryatts v. White 
Marsden v, Goode 
V, Reid 



Seotlon 

529, 530, 584 
605 
882, 896 



Marseilles, &c. Co. v. Aldrich 482 

Marsh, Ex parte 478 

V. Bancroft 586 

V. Blythe 219 

V. Bulteel 79 

V. Gold 585, 594 

V. Home 218 

V. Hottlditch 

r. Marsh 

V. Packer 

V. St. Croix Co. Sap. 

». Ward 

I?. Whitmore 

V, Wood 
Marshall r. Columbian Ins. Co. 

V. Haney 

V, Mar. ins. Co. 

V. Naffel 

t7. Fancer 

o. York, &c. Railway Co. 
Marshall's Case 
Marshfieid v. Marsh 
Marsteller v. McClean 
Marston o. Hobbs 

V. Roe 
Martin v. Bailey 

0. Bell 

V, Bortch 

V. Fishing Ins. Co. 

V. Gillam 

V, Groble 

V. Hardest^ 

V. IngersoU 

V. Long 

V. Martin 

V. Payne 

V. Strachan 

V. Thornton 

r. Winslow 
Martins v, Gardiner 
Martyn o. Blithman 

p. Podger 
Marvin p. Mandell 
Marx p. McGlynn 
Maryon r. Carter 
Marzetti v. Williams 
Maslin p. Bait. & O. R. R. Co. 208, 

211. 222 
Mason p. Potter 481 

p. Waite 118 

p. Warner 519 

p. Wright 365 

Massachusetts Bank p. Oliver 186 

Massey p. Goyner 473 

Master p. Cookson 278 h 



532 
674 
79 
432 
25 
144 
79 
406 
236 
426 
141 
388 
212 
688 
338 
438 

240, 241 

684, 685 
562 
582 
296 

394, 401 
655 
471 
458 
190 
264 

462, 463 
88, 573, 576 
303 
74,78 
179 
681 
115 

597, 629 
135 
690 
235 

146,584 



Masters p. Baretto 

p. Barrets 

*p. PoUie 

p. Warren 
Masterton p. Brooklyn 
Mather p. Clark 

p. Green 
Mathers p. Pearson 
Mathias p. Sellers 
Matson v. Buck 

p. Magrath 

p. Trower 
Matthews, Re 

p. Baxter 

p. Beach 

p. Bliss 

p. Howard Ins. Co. 

p. Huntley 

p. Mass. Nat. Bk. 

p. Matthews 

p. Menedger 

p. Phillips 

p. Redwme 

p. Terry 

p. W. Lond. Waterw. 
Matihie p. Potts 
Mattocks V, Chadwick 
Matts p. Hawkins 
Mattson p. Hanisch 
Maunder p. Venn 
Maurice p. Worden 
Maus p. Maus 
Mawman p. Gillett 
MawsoB p. Blane 
Max p. Roberts 
Maxwell p. Chapman 

p. Jameson 

p. Kennedy 
Maxwell's Will 
May p. Bradlee 

p. Brown 

p. Burdett 

p. Coffin 

p. Harvey 

p. Komhans 

p. Proby 
Mayall p. Boston & Me. R 
Maybin p. Railroad Co. 
Mayer p. Jadis 
Mayhew p. Boyce 

p. Eames 

p. Herrick 

p. Nelson 
Maynard p. Frederick 

p. Maynard 

p. Nekervis 
Mayne's Case 
Mayo p. Preston 



Co. 



R. 



flection 
160 
160 
617 

267 
256 
363 
433 
111 
561 
275 
684 
73 
251 
171 
421 
253 
387 

424, 426 

164 

54 

649 

432 

280 

93,97 

232 6 

388 

440 

617 

562 

88,572 

437 

11a 

478 

867 

209, 228 
461 
113 
424 
675 
691 
275 
230 
195 
644 
268 
591 
212 
212 
166 
221 
220 
646 
213 
74 
297 
207 
236 

218, 219 



INDEX TO CASES CITED. 



It 



Section 

Mayor ». Johnson 156 

Mayor, &o. of Alexandria v. Pat- 
ten 529, 532 
Mayor, &o. of Carmarthen v. 

Lewis 11 d 

Mead v, Daubigny 418 

V. Degolyer 104 

V. Paddock 136 

V, Small 190 

V. Wheeler 259 

V. Young 158 

Meads v. Gushing 253 

Meany t;. Head 560, 561 

Meara v. Holbrook 232 b 

Mease o. Keefe 669 

Mechanics' Bank v. Hildreth 167 

V, Merch. Bank 251 

o. WiUiams 556 

Mecomey v. Stanley 163 

Medlycotv. Assheton 682 

Medway 9. Needham 460 

Meek v. Meek 430 

Me^got o. Mills 531 

Menan v. Thompson 520 

Meighen v. Bank 251 

Meigs V. Mutual, &c. Ins. Co. 251 

Melledge v, Boston Iron Co. 62, 520 

Mellen v. Delaware, &c. R. R. Co. 487 

9. Thompson 95 

r. Western R. R. Corp. 616 

17. Whipple 107, 109 

Mellon 9. Croffhan 180 b 

Melius 9. Silsbee . 504 

Melville 9. Brown 646 

Melvin 9. Whiting 539 

Memphis & Ch. R. R. Co. 9. Lyon 230 

9. Whitfield 267 

Mence 9. Mence 681 

Mendez 9. Carreroon 169 

Mercantile Bank 9. Cox 480 

Mercer 9. Jones 276, 649 

9. Walmsley 576 

Merchants' Bank 9. Elderkin 178 

9. Griswold 153 a 

Merchants' Despatch Co. 9. Joest- 

ing 215 

9. Lyson 215 

9. Ibpping 433 

Merchants' Mar. Ins. Co. 9. New 

Orleans Mar. Ins. Co. 392 

9. Wilson 251 

Merest 9. Harvey 89, 253, 271 

Merrett 9. Farmers' Ins. Co. 405 

Merriam 9. Bayley 444 

9. Cunningham 364, 365, 368 

9. Middlesex Ins. Co. 408 

9. MitcheU 453, 455 

Merrill p. How 635 a 



Saetkm 

Merrill v. MerriU 258 

Merrills v. TarrifE Manof . Co. 253 

Merriman v. Morgan 452 

Merritt 9. Claghorn 219 

9. Clason 674 

V. Cornell 296 

9. Eai'le 219 

9. Lyon 563, 597 

9. MUard 637 

9. Todd 199 

Mei*ry 9. Lynch 08 a 

Merry weatner 9. Nixan 115 

Mersereau 9. Norton 646 

Meserole v. Archer 603 

Merwin 9. Camp 295 

9. Huntington 111, 121 

Metcalf 9. Officer 483 

Methuen Co. 9. Hayes 61 

Meyer 9. New York 123 

9. Press Pub. Co. 420 

Meyers 9. Pope 461 

Michaels 9. N. Y. Cen. Railw. 219 

Mich. Cent. R. R. Co. 9. Min. 

Spr. Manuf. Co. 210 

9. Ward 210 
Mich. S. & N. I. R. R. Co. 9. 

McDonough 222 a 

Mickey 9. Stratton 307 

Middleborough 9. Rochester 464 

Middlemore v. Goodale 240 

Middleton 9. Brewer 600 

9. Fowler 68 

9. Price 629 

Mildmay 9. Dean 625 

Miles 9. Cattle 220 

9. Conn. Mut. Ins. Co. 406, 409 

9. Gorton 640 

9. Moodie 440 

Miles's Will 674 

Milford 9. Worcester 460, 464 

Milgate 9. Kebble 640 

Miller 9. Adams 433 

9. Adsit 561 

9. Atlee 117 

9. Baker 621 

9. Bartlett 420 

9. Brenham 430 

9. Butler 256, 416, 417 

9. Carothers 694 

9. Coates 301 

9. Delamater 166 

9. Finley 171 

9. Hackley 196 

9. Halsey 244 

9. Hardin 306 

9. Hays 256 

9. Johnson 415, 417 

9. Lancaster 442 



Ivi 



INDEX TO CASES CITED. 



fleotkm 

Miller v. M'Brier 305 

V. M'Clenachan 485 

V. Mariners' Church 261 

V. Miller 108, 120, 150, 801, 414, 

.690 

V. Race 122 

9. Shields 656 

V. Smith 136, 487 

V. Steam, &c. Co. 210 

V. Washburn 659 a 

V, Webb 156 

Miller's Case 45 

Milligaii V. Ins. Co. 405 

t;. Wed^e 232 a 

MiUikin v. Brown 619 

r. Tufts 633 

MiUne v. Wood 695 

Mills V. Bank of U. S. 16, 186, 189 

o. Fowkes 444, 532, 535 

r. Gore 297 

V. Mich. Cent. R. R. Co. 212 

17. Perew 392 

V. Spencer 424 

V, Western Bank 115 



Milman v. Dolwell 


625 


Milne r. Gratriz 


79 


Milnes v. Branch 


240 


V, Duncan 


123 



Milwaukee, &c. R. R. Co. v. Arms 253 

Miner v. Clark 244 

Minesinger v. Kerr 426 

Minet v. Gibson 14, 166 

Minkler v. Minkler 441, 681 

Minnett v. Whitney 484 

Minor r. Mechanics' Bank 133 

V. Thomas 688 

Minter v. Hart 492 

17. Mower 489, 494 

V, Wells 492 

t7. WilliamB 496 

Minton v. Woodworth 280 

Mires v. Solebar 642, 644 

Mispelhom r. farmers' F. Ins. Co. 406 

Miss. Central R. R. Co. v. Mason 230 

Missouri, &c. Ins. Co. v, Sturges 409 

Mitchell 17. Dall 534 

V. Gibbes 290 

V. Jenkins 453, 454 

V. King 605 

t7. Kingman 135, 370 

17. Lunt 843, 345 

V. Scott 104 

v. Stanley 264 

t7. Stavely 78 

t7. Warner 242, 244, 557 

V. West. R. R. Co. 222 

V. Wheaton 28 

V. WiUiams 644 



flMtion 

Mixer r. Cobum 251 

Mobile t7. Girard R. R. Co. 210 

Mobile, &c. Ins. Co. v. Morris 409 

Mobile & Ohio R. R. Co. t7. Hopkins 222 

Moehring v. Mitchell 278 h 

Moffat V, Parsons 606 

Moffatt 9. Van Millingen 478 

Moffgridge v, Jones 136 

Mohry v. Hoffman 572 

Mohtam v. Mills 163 

Moilliet r. Powell 11 rf 

Moir V. Royal Ex. Ass. Co. 383 

Moises 17. Thornton 412 

Moline, Ex parte 186 

Moline Water Power, &c. Co. ». 

Nichols 108 

MoUer v, Lambert 478 

Monckton v. Pashley 229 

Monk V. Noyes 245 a 

17. Packard 466 

Monprivatt r. Smith 273, 634 

Monroe t;. Clialdeck 600 

Montoya r. Lond. Ass. Co. 387 

Montnou v, Jeffreys 143 

Monumoi v. Rogers 625 

Moodey c. Pender 457 

Moodie v. Reed 675 

Moody V, Fisk 506 

V. Stracey 11 a 

t7. Whitney 638, 649 

Moon V. Andrews 351 

t7. Raphael 649 

Moor V. CoruviUe 662 

17. Hill 127 

17. Mauk 420 

Moor's Case 424 

Moore r. Abbot 232 a, 473 

V. Adam 89 

V. Campbell 251 

V. Eddowes 123 

V. Fitchburg R. R. Co. 68 

o. Floyd 599 

v. Frankenfeld 248 

V. Greene 448 

17. Hershev 171 

17. Juvenal 433 

17. Kiff 533 

V. Michigan C. R. Co. 210 

V. Moore 112, 618, 678, 683 

V. Protection Ins. Co. 396 

V. Rawson 476 

9. Robinson 226 

17. Sheridine 209 

V. Smith 528 

«. Stevens 443 

17. Taylor 634 

r. Terrell 427 

17. Weber /y 243 



INDEX TO CASES CITED. 



Ivii 



Section 

Moore t;. Willamette Transp. Co. 295 

r. WilBon 86, 209, 212 

r. Woolsey 409 

Moores v. Wait 640 

Moorhead v. Fry 104 

Mooring v. Mobile, &c. Ins. Co. 520 

Moorsum v. Moorsum 51 

Mootry v. Danl>ury 472 

Moran v. Dawes 226, 571, 673 

V. Portland, &c. Co. 212 

Moravia v. Levy 127 

Morehead o. Jones 418 

Moreland v. Bennett 290 

Moreton v. Hardern 226 

Morey v. King 268 

Morford v. Maatin 136 

V. Peck 560 

Morgan v, Adams 37 

V. Banta 539 

r. Boyes 618 

V. Brydges 582 

V. Chester 580 

V. Edwards 800 

r. Heifer 261 

V. Hughes 452 

V, Ide 637 

V. Lombard 662 

V. Mather 78 

V, Moore 556 

V. Palmer 121 

V. Richardson 136 

V. Seaward 490, 498, 494, 498, 506 

r. Smith 78 

Moriarty v. Brooks 83 

V. Stofferan 560 

Morland v. Pellatt 587 

Morrell v. Trenton, &c. Ins. Co. 409 

Morris V, Barker 424 

V. Corson 454 

V, Davies 150 

o. Edgington 545 

0. Hauser 191 

V. Miller 49, 461 

V. Ross 78 

V. Scott 449 

V. Tinker 832, 887, 550 

Morrisey v, Wiffgin's Ferry Co. 222 

Morrison v. Bediey 109 

0. Berkey 118, 118 

V. Berry 636 

V, Funk 528 

V. Mitchell 614 

Morse r. Aldrich 240 

v. James 105 

Mortora v. Hall 866 

Mortimer v. Mortimer 45 

Morton v, Barrett 278 d 

V. Gloster 111 



Morton v. Shoppee 
V, Webb 
V. Westcott 
Moseby v» Burrow 
Mosely v. Hamilton 
V. Reade 



Baotloa 

62 

26 

188, 193 

339 

587 

126 



Moses V. Boston & Maine R. R. 

Co. 210, 215 

0. Macfarlan 117 

V, Morris 560 

t;. Mur^troyd 119 

V. Norns 591 

V. Trice 520 

Mossop V. Eadon 156 

Mostyn v. Fabrigas 86 

Mote V. Ch., &c. R. R. Co. 221 

Mott V. Kip 588 

Mottram v. Mills 202 

Mouler r. Am. L. Ins. Co. 409 

Moulton V. Bowker 141 

v. Scruton 261 

t;. Trask 104 

Mountford v, Gibson 345, 649 

Mountstephen v. Brooke 440, 441 

Mower v. Watson 421 

Mo wry o. Shumway 274 

V. Todd 112 

Mucklow V, Mangles 638 

Mueller v, Southside, &c. Ins. Co. 406 

Muldrow V. McCleland 238, 241 

Mulgrave p. Ogden 642 

Mulheran v. Gillespie 524 

Mullan V. Phil. S. S. Co. 232 b 

Mullet V. Hook 25 

. V. Hulton 274, 424, 425 

Mulligan r. Eq. Ins. Co. 405 

r. 111. Ceu. R. R. Co. 210, 218 

Mulvehall v. Millward 572 

Mumford v, McKay 646 

Mummery 9. Paul 231 

Munn 0. Baker 217 

Munns v. Dupont* 295, 454 

Munroe v. Allaire 75 

t;. Cooper 172 

Munson v, N. E. Ins. Co. 394 

Munt V. Stokes 341 

Murgatroyd i;. Murgatroyd 579 

Murphy v. Deane 222, 232 a 

V. Phillips' Ex. 232 b 

V, Staton 219 

V, Stout 418 

V. Welch 295 

Murray v. Baker 437 

V, Burling 641 

V. Carrett 156 

V. E. I. Co. 435 

17. Lardner 172 

r. Long 453, 554 



Iviii 



INDEX TO CASES CITED. 



BeetioQ 

Murray v. Milner 4G2 

V. Ormes 195 

V, Someryille 25 

t^. S. Car. R. R. Co. 232 b 

Muschamp r. Lancaster & P. J. 

R. R. Co. 210 

Masgrave u. Drake 159, 172 

Muskett v. Hill 226 

Musselbrook o. Dunkin 75 

Musselman v. Cravena 869, 870 

MuBsen t;. Price 104 

Mu8sey v, £af le Bank 251 
Mut. Ben. L. Ids. Co. v. Lawrence 409 

Mat. L. Ins. Co. v. Stibbe 887 

Myers v. Courtney 187 

v. Standart 196 

V. Vanderbelt 674 

Myrick v. Dame 480 



N. 

Na^le V. Baylor 300 

Nailing v. Nailing 688 

Naish 0. TaUock 114 
Narragansett Bank v, Atlantic 

Silk Co. 62 

Narraguagus Propr's v, Wentworth 141 

Nash v. Brown 136 

V. Drew 64 

V, Hodgson 529, 581 a 

V. Hunt 691 

V. Nash 279 

0. Sharp 269 

Nat. Bk. 01 Com. t;. Nat. Mech. 

Bk. Ass. 164 
Nat. Bk. of N. A. r. Bangs 122, 172 
Nat. Bk. Green Bay r. Dearborn 561 
National Oil Ref. Co. v. Bush 120 

Nat. Union Bk. v. Segur 240 

Naylor v, Collinge 656 

V. Naylor ^ 52 

V. Scmmes 251 

Neacy v. Allis 489 

Neal V. Erving 66 

V. Sheffield 28 

Neale v. Ledger 73 

Nealley v. Greenough 802 

Neave v. Moss 805 

Nebeker v. Catsinger 172 

Nebraska City v. Campbell 267 

Needham r. Dowling 421 

Neel V. Deans 124 

Neely's Appeal 430 

Neff v. Thompson 561 

Negley v. Lindsay 68 

Neil p. Neil 678 

Neill p. Morley 869 

Neilson o. Harford 489, 490 



Nelson v, Salvador 388 

p. Suffolk Ins. Co. 387 

p. Whittall 158 

Nelthorpe v. Dorrington 649 

Nesbit p. Neill 831 

p. Nesbit 240 

Nettles p. Railroad Co. 219 

Nettleton p. Sikes 627 

Newberry p. James 490 

Newbold p. Lamb' 296 

p. Sims 39 

p. Wright 249 

Newborn p. Just 218 

New Brunswick Co. p. Tiers 219 

Newburyport p. Boothbay 462 

Newburyport Ins. Co. p. Oliver 893 

Newby p. Read 386 

Newcastle F. Ins. Co. p. MacMorran 406 

Newcomb p. Wood 69 

Newell r. Downs 454 

New England Bank p. Lewis 193 

New England M. F. Ins. Co. e. 

Belknap 377 

Newhall p. Ireson 467, 474 

p. Wheeler 23, 555 

Newhall House S. Co. p. Flint, 

&c. R. R. Co. 25 

New Hampshire, &c. Ins. Co. p. 

Hunt 104 

New Haven County Bank p. Mit- 
chell 193, 295 
New Haven Steamboat Co. p. 

Vanderbilt 267 

Newhouse p. Godwin 689 

New Jersey Mid. R. R. Co. p. Van 

Syckle 616 

New Jersey R. R. Co. p. Kennard 222 
New Jersey Steam Nav. Co. v. 

Merchants' Bank 215 

Newkirk p. Sabler 627 

New land p. Douglas 78 

Newman p. Bean 481 

p. Jenkins 278 d 

p. Newman 291 

Newmarch p. Clay 529 

Newmark p. Liverpool Ins. Co. 394, 406 

Newnham •>. Tetherineton 483 

New Orleans p. United States 662 

Newport p. Hardy 135 

Newsam p. Carr 454, 458 

Newsom p. Thornton 880 

Newsome p. Graham 120 

Newton v Clarke 678 

p. Galbraith 602 

p. Grand Junction R. R. 

Co. 606 

p. Harland 98, 622 

p. Mutual, &c. Ins. Co. 409 



INDEX TO CASES CITED. 



]ix 



Bttkm 

Newton v. Bowe 425 

V. Yauclier 493 

r. Wilson 621 

New York v. Ransom 496 

New York & H. R. R. Co. r. 

Marsh 121 

New York & Mob. Tel. Co. v. 

Dryburg 211, 222 a 

New York Central & U. R. R. R. 

Co. V. Fraloff 221 

New York Central Ins. Co. v. Na- 
tional Pro. Ins. Co. 64 a 
New York Ins. Co. r. Walden 397 
New York State Bank v. Fletcher 519 
Niafi^ara Bank v. Rosevelt 529, 531 
Niblack v. Goodman 411 
Niblo P. N. Amer. Ins. Co. 407 
Nichol o. Davidson County 297 
Nichole u. Allen 108 
Nichols V. Bucknam 114 
». De Wolf 251 
V. Fayette Ins. Co. 405 
V. Luce 657, 058 
Nicholson v. Coghill 453, 455 
V. Croft 260, 377 
V. Frazier 517 
V. Goutliit 195 
Nickels v. Ilaslam 490 
Nickelson v. Stryker 88, 573, 576 
Nickerson v. Ruger 172 
NicoU V, Glennie 644 
Nicolls V. Bastard 640 
Nightingal v. Devisme 112, 118 
Nightingale v, Oregon C. R. R. 

Co. 141 

V. Withington 166 

Niles p. Sawtell 240 

Niver v. Best 111, 199 

Nixon V, Jenkins 614 

V. Palmer 66 

V, Phelps 144 

Noble V. Adams 638 

V. Bates 259 

V, Biddle 337 

r. Kennoway 250, 251 

Noding V. Alliston 676 

Noel 17. Murray 620, 523 

Noell V. Wells 339 

Noice V. Brown 675 

Noke V. Awder 240 

V, Ingham 133 

Nolan V. Jackson 141 

V. Schickle 232 6 

V. Traber 420 

Nolton V. Western R. R. Co. 222 a 

Norbury v. Meade 665 

Norcross v. Widgery 430, 557 

Norfolk, Ex parte 25 



Norfolk p. Gaylord 
Norman r. Wells 
Norris v. Smith 
North V, Miles 
p. North 



BaotioB 
153 
240 
331 
583 
53 



Northampton Pap. Mills p. Ames 616 

North Bank v, Abbott 180 6, 197 

Northcutt p. Northcutt 674 

Northfield v. Vershire 462 
North Greig Trustees p. Johnson 318 

Northrop p. Wright 657 
Northwestern Railway Co. p. 

Sharp 147 

Norton p. Babcock 244 

p. Colgrove 242 

p. Craig 616 

0. Gordon 414 

p. Lewis 196, 197 

V. Marden 123 

p. Norton 369 

p. Savage 73 

p. Seymour 159, 161 

p. Warner 55 

Norway Plains Co. e. Boston & 

M. R. R. 210 

Norwood p. Manning 530 

Nowell V. Roake 336, 456 

p. Sands 625 

Noyes p. Cushman 481 

p. Dyer 556 

p. Rutland & B. R. R. Co. 210 

Nussear p. Arnold 690 

Nutting p. Connecticut River R. R. 

Co. 210 

Nye p. Otis 414 

p. Smith 699 



o. 

Oakapple p. Copous 
Oakes p. Brydon 

p. MarcY 

p. Wood 
Oakham v, Holbrook 
Oates p. Lilly 
Odiome p. Amesbury Nail 

p. CoUey 

p. Maxey 

p. Wade 

p. Winkley 
Odom p. Gill 

p. Odom 
Offut p. Offut 
Ogden p. Dobbin 
Ogle p. Cook 
Ohio & Miss. R. R. Co. p. 

p. Nickless 



821 

818 

807 

95 

472 

342 

Fac. 603 

637 

66,68 

662 

498 

684 

53 

136 

180 6 

694 

Hays 221, 

222 a, 261 

222 



INDEX TO CASES CITED. 



Ohl 17. Eagle Ins. Co. 
Oil V, Rowley 
Okell V. Smith 
O'Kelly V, O'KeUy 
Olcott t7. Banfill 

V. Ratlibooe 
Oldham v, Bateman 

V, Langmead 

V. Peake 

V, Pfleger 
Oldnall V. Deakin 
O'Leary v. Sty meat 
O 'Linda v. Lothrop 
Oliver v. Dickenson 

V. Greene 

V. Uook 
Olmstead v. Beale 
Omaly v. Swan 
O'Neall V, Fair 



Beetlon 

«78 
625 
136 
297 
662 

112, 520 

110 

501 

417 

829 

679 

892 

657 

659 a 

819 

658, 659 a 

186 a 

524 

682, 688 



O'Neill V. Chicago, &c. R. R Co. 222 

V. Read 868 

Onions v. Tyrer 681 

Onley ». Gardiner 660 

Onslow «. Orchard 277 

Oothout V. Thompson 446 
Oppenheimer v, U. S. Erp. Co. 215, 

216 

Orange Co. Bank v. Brown 221 

Ord 17. Portal 167, 478 

O'ReiUy v. Morse 508, 606 

Oridffe©. Sherborne 186 

Ormsby v. Dearborn 560 

O'Rorke o. Smith 659 a 

Orpwood V, Barkes 414 

Orr V. Churchill 258 

Orser v. Storms 614 

Osbom t7. Cook 675 

Osborne, In re 668, 669 

Osgood V. Breed 672 

V. Carver 621 

V. Coates 555 

V. Green 561, 568 

t7. Spencer 185 

O'Shaugnnessy v. Haydn 275 

Oswald t7. Leigh 290 

Oswego t7. Oswego Canal Co. 662 

Otis 17. Gibbs 265 

V, Jones 685 a 

Ou^hton V. Seppings 121 

Ouimet V. Hensnaw 212 

Outwater v. Nelson 251 

Overton d. Bolton 153 a 

Oviatt 17. Sage 646 

Owen V. Barrow 65 

V. Burnett 215 

». Foster 616 

V. Lewyn 642 

V. O'Reilly 255 



BocuOii 

Owen V, Owen 45 

17. PhiUiM 470 

Owenson t7. Morse 528 

Owings 17. Hull 66 

Ozenham v, Clapp 850 

Oxford Bank t7. Haynes 186 

Oystead v. Shed 621 



P. 



Pack V, Alexander 193 
Packard t7. Agawam, &c. Lib. Co. 406 

P. Taylor 210 

Packer v. Gillies 688 

Paddock t7. Forrester 544 
t7. Franklin Ins. Co. 886, 899, 

400, 401 

V. Robinson 111, 185 

V, Salisbury 424 

Padget t7. Priest 848 

t7. Baker 618 

Padmore i7. Lawrence 421 

Page 0. Dennison 151 

V. Hatchett 471, 642 

V. Hubbard 520 

t7. Mann 158 

V, Robinson 616 

17. Wiple 458 

Pain 17. Whittaker 640 

Paine v. Bacomb 103, 104 

V. Hall 676 

V. Maine, &c. Ins. Co. 406 

Painter v. Abel 112 

Painton v. No. Central R. R. Co. 232 b 

Paist 17. Caldwell 79 

Palethorp ». Furnish 65 

Palinsky ». N. Y. &c. R. R. Co. 280 

Palmer v. Butler 441 

17. Fletcher 471 

17. Hughes 180 a, 180 b 

V. Manning 158 

t7. Palmer 435 

t7. Railroad 222, 280, 258 

t7. Reiffenstein 142 

17. Richardson 454, 458 

V, Stevens 158, 298, 616 

Pangbom t7. Ball 456 

Panton v. Holland 280, 466 

17. Williams 454 

Paradine t7. Jane 235 

Paramore v, Taylor 688 

Parchman p. McKinney 588 

Pardee i7. Drew 221 

Pardridge v. Brady 624 

Parfitt 17. Thompson 401 

Pariente i7. Plumtree 591 

Parish v. Burwood 285 



INDEX TO CASES CITED. 



Izi 





Section 


Fwish V, Stone 


186, 199 


». Whitney 


242 


Park 9. Bates 


264 


Parke v. Ollat 


675 


Parker «. Atfield 


351 


p. Bailey 


226, 571 


0. Barker 


4S4 


V. Coburn 


524 


V. Colcord 


26, 431 


V. Downing 


518 


V. Dunn 


243 


V. £mott 


226, 671 


V, Farley 


462, 458, 454, 457 


9. Fenn 


584, 592 


0. Foote 


539 a 


V. Gordon 


178 



tr. Great Western Railway 

Co. 121 

9. Hanson 206, 207 

V. HiU 297 

V. Hnntington 449, 453, 457 

V, Latner 111 

9. Norton 265 

V. Osgood 521 

V. Parker 669, 672 

V. Perkins 603 

V. Potts 401 

V. RoUs 144 

V. Smith 657 

V, South East. Ry. Co. 216 

V. Stiles 488, 489, 492, 494, 505 

V. United States 113 

V. Way 151 

Parkhnrst v. Jackson 520 

9. Ketchum 424 

Parkin v. Bainbridge 681 

Parkins r. Cox 656 

V. Scott 420 

Parkman v. Osgood 446 

Parks V, At. & Cal. TeL Co. 211 

0. Bishop 544, 659 

V. Boston 276 

Parmer v. Anderson 418 

Parminter v, Symons 164 

Parmiter v, Coupland 411 

Parramore v. Taylor 688 

Parrott v, Housatonic R. R Co. 261 

V. Thacher 251, 252 

Parry v, Fairhoist 11 rf 

V, Hoose 805, 565 

Parshall p. Fisher 483 

Parshley v. Heath 190 

Parsons v. Brown 98 

V. Crosby 478 

V. Hall 78 

V. Hancodk 847 

V. Land 666 

9. Loyd 621 



Parsons r. Plaisted 
Partington o. Butcher 
Parton i;. Hervey 
Partridge v. Bere 

V. Coates 
Pasley v. Freeman 
Pasmore v. Bousfield 



BMlion 
11a 
443 
460 
326 
285 

230 a 
24, 131 



Passenger R. R. Co. v. Donahoe 208 6 

V. I oune 68 

Passinger v. Thorburn 268 a 

Passmoreo. West. Un. Tel. Co. 222 a 

Patapsco Ins. Co. t;. Coulter 387, 390 

V, Southfirate 392 

Patience v. Gu>wnley 195 

Patrick v, Colerick 627 

t;. Excelsior L. Ins. Co. 409 

V. Putnam 104 

V. Woods 11 a 

Patten v. Patten 641 

t;. Tallman 691 

Patterson v. Benj. Fr. Ins. Co. 377 

V, Black 278 A 

v. Cunliffe 654 

V. Garlock 458 

V. Patterson 441, 693 

17. Pitts. & Conn. R. R. Co. 232 6 

9. Sweet 242 

Pattison t;. Hull 629, 533 

9. Jones 419, 423 

0. Robinson 638, 644 

Patton V. State Bank 156 

Paull 9. Simpson 343 

Pawlet 0, Clark 662 

Pawson v. Watson 396 

Payne v. Jenkins 126 

V, Rogers 472, 473 

Payuter i*. Williams 114 

Payson v, Caswell 457 

9. Whitoomb 112, 180 6 

Peabody 9. Denton 156 

9. Peters 225 

9. Rice 71 

Peacock 9. Harris 129 

9. Peacock ' 477 

9. Rhodes 163 

Pearce 9. Davis 520 

9. Omsby 418 

9. Whale 412 

Pearcy 9. Dicker 295 

Pearse 9. Allis 695 

Pearsoll 9. Chapin 867 

Pearson 9. Henry 847 

9. Inlow 622 

9. Lemaitre 271, 418 

9. Lord 111 

V. McGowran 284, 418 

9. Parker 118 

9. Wightman 295 



Ixii 



INDEX TO CASES CITED. 



Pease v. Hint 
v. Najlor 



SMtton 

478 
351 
424 
642 
238 
II a 
435 
64 a 
331 
215 
481 
392 
392 
638 
136 a 
136 
4U 
666 
180, 188 
444 



V. Shippen 
0. bmith 
Peck r. Murtry 

V. SiU 
Pecke V, Ambler 
Peckbam r. Lyon 
Peebles v. Readiiie 
Peek V. North Stalf. Ry. Co. 
Peel V. Tboinas 
Peele v. Merchants' Ins. Co. 

V. Suffolk Ins. Co. 
Peer v, Humphrey 
Peeters v. Oj)ie 
Pegg V, Stead 
Pe^am o Stoltz 
Peirce v. Peirce 
V. Pendar 
V. Tobey 
Peirse v, Bowles 608 

Peirson v. Steinmyer 481 

Pembertoti v. Pemberton 682 

Pembroke's (Countess of) Case 655 
Penaro w. Flournoy 442 

Pendleton v. Phelps 438 

Pendrel c. Pendrel 160 

Penfield v. Jacobs 440 

Penfold V, Westcote 423 

Penley v. Watts 245 a 

Penn ». Buf . & Erie R. R. Co. 222 a 
V, Glover 243 

V, Ward 95 

Penn. & N. Y. Canal & R. R. Co. 

V. Lacey 230 

Penn. Co. v. Haldeman 212 

V. Miller 221 

Penn. R. R. Co. v. Dale 261, 268 6 

V. Henderson 222 

. Hensilv 230 

V. Lanffdon 222 

V. McClosky 222 

V. Righter 232 a 

V. Weber 222 

Penniman v. Manson 481 

V. Rotch 445 

V, Tucker 382 

Penniniifton v. Gibson 279 

Pennock v Dialogue 502, 504 

Penny v. Porter 209 

Penruddock's Case 472 

Penson v. Lee 382 

People V. Bank of No. America 639 

V. Bennett 50 

t;. Christman 153 

V. Coffman 873 

V. Cunningham 466 

V. Dunning 580 



People V. Grarbut 

v. Herr 

V. Howell 

V. Humphrey 

v. Johnson 

V. McCann 

v. Miller 

V. N. Y., &c. R. R. Co. 

V. New York C. P. 

0. Robinson 

V, Rowland 

V, Spra^ue 

V. Trinity Church 

V, Wayne C. Judge 

V. Williams 
People's Ins. Co. v. Paddon 
Peoria. P. & J. R. R. Co. v 

nolds 
Pepper v. Burland 
Peppin t;. Shakespear 

V. Solomons 
Percival v. Blake 
Percy, Re 

Perham Mach. Co. t;. Brock 
Penes v. Aycinena 
Perkins r. Cummings 

V. Eastern Railr. Co. 

V, Franklin Bank 

V. Hart 

V. Jordan 

r. Lyman 

V, Perkins 

0. IMtts 

V. Rogers 

V. Savage 

v. Smith 

t;. Washington Ins. Co. 

17. Wing 
Perley t;. Chandler 

t;. Foster 

V. Little 
Pemam v. Weed 
Perrins v. Hill 
Perris v, Roberts 
Perry c. Chandler 

r. Dover 

V, Jackson 

V. Marsh 

t;. New Brunswick Ry. 

V, Porter 

V, Roberts 

V. Skinner 

V. Slade 

V, Turner 

V, Watts 
Person v. Chase 

V, Wilson 
Pervear v. Kimball 



8«sti<m 

373 
431 
520 
461, 462 
584 
373 
461 
208 
136,562 
87a 
293 
373 
831 
430 
874 
877 
Rey. 

230 
104 
631 
383 
124 
147 
520 
68 a 
523 
232 a 
240 
128 
251 
258 

53, 54, 431 

330 

437 

111, 121 

645 

62 

75 

616 

585, 594 

440 

658 

139 

536 

616 

121 

438 

232 6 

Co. 18 
414 
529 
497 
126 
518 
116 
867 
646 
580 



JNDBX TO CASES CITED. 



Ixiii 



Ffeter, Lord v, Heneage 
Peters v, Anderson 

V. Ballifltier 

V. Craig 

V. Fleming 

V. Foss 

V, Lake 

V, Warren Lis. Go* 
Peterson v. Ayre 

V. Loring 

V. Morgan 
Peto V, Hague 
Petrie V. Lamont 

V. Penu., &c. By. Co. 
Pettee v. Prout 
Pettibone v. Derringer 
Pettigrew v. Pringle 
Pettis r. Ray 
Pettit 0. Addington 



Section 
642 
530 

66 

79 
365 
430 
579 
387 
261 

74 
424 

65 
621 
222 
163 
489 
383 

31 
88, 89, 278 



Peyton u. Mayor, &c. of London 473 
Peytona, The 218, 219 

Pfeiffer t;. Grossman 622 

Pfiel V. Yanbatenburg 155, 169, 170, 

527 

Phelan o. Moss 172 

Phelps V. Hartwell 690 

V. London & N. W. R. Co. 221 

V. Williamson 440 

Phene's Trusts, Re 278/ 

Phila. & R. R. R. Co. v. Derby 68, 221 

V. KiUips 230 

v. Ramsey 210 

Phila., W. & B. R. R. Co. r. Derby 222 

V. Phila., &c. Towboat Co. 232 a 

V. Quigley 453 

Philbrook v. New Eng., &c. Ins. 

Co. 406 

Philips V, Biron 620 

t;. Peters 410 

Phillimore t;. Barry 638 

PbUiips V. Allen 150, 152 

V. Astling 186 

V. Blake 522 

V. Bridge 145 

V. Covert 615 

V. Cnmmings 24 

V. Earle 220 

V. Hall 621 

V. Howgate 95, 273 

V. Hoyle 254, 267, 579 

V. Hunter 460 

V. Jansen 414 

V. Merrimac, &c. Lds. Co. 405 
V. Moses 633 

V. Naire 392 

9. Page 500 

-9. PhUlim 51, 440 

V. Piob Ins. Co. 394, 406 



Phillips V. Smith 

V. Stevens 

V. Warren 
Phillipson v. Mangles 
Philpott t7. Bryant 

V. Dobbinson 

v. Holmes 

V, Jones 

». Kelley 
Phipps V. Chase 

V. Ingram 

V, Piteher 
Phipson V. Kneller 



8«otioa 

264 

245 a 

170, 527 

584, 589 

202 

564 

625 

531a 

642,644 

180, 188 

78 

691 

195 



Phyn V. Royal £xch. Ass. Co. 390 

Pick 9. Strong 339 

Pickard v. Bankes 118 

Pickering v. Day 530, 533 

V, Rudd 622, 634 

Pickett V, King 11a 

17. Merch. Nat, Bk. 533 

Pickman r. Trinity Ch. 121 

Pickup V. Thames, &c. Ins. Co. 401 

Pico 0. Gallardo 331 

V. Ralisher 648 

V. Martinez 561 

Picquet v. Curtis 174, 180 6, 436 

Picton r. Jackson 412 

Pidcock V. Potter 370 

Pidffe r. Tyler 28 

Piedmont, &c. Ins. Co. v. Ewing 399 

Pierce v. Benjamin 265, 272, 276, 

635 a, 642, 649 

V, Blake 142 

r. Butler 204 

V, Gate 195 

0. Crafts 112 

V. Drake 523 

V. Fuller 259 

V, Goddard 636 

V. Hakes 295 

0. Jackson 585, 593 

V, Partridge 594 

9. Pickens 229, 624 

V. Pierce 51, 666, 689 

t;. Thompson 449 

V. Tobey ^ 444 

Piercy, He 678 

Pierre t;. Fernald 639 a 

Piers ». Piers 460 

Pierson v. Hooker 190 

V. Hutchinson 156 

o. Post 620 

Piggott V. Eastern R. R. Co. 230 

Pigott V, HoUoway 295 

V, Kemp 95 

Pike 9. Brown 109 

V. Emerson 141 

Pilkington v. Hastings ' 569, 607 



Ixiv 



INDEX TO GASES CITED. 



Seetlon 

PilkiDg:toii'8 Case 569 

Filler v. So. Pacif . R. R. Co. 433 

Pillsbury w. Willoughby 600, 607 

Pimm r. Grevill 569 

Pinchon v. Chiloott 126, 127 

Pindar v. Wads worth 254 

Pinkerton v* Casloo 258 

Pinley v. Bagnall 139 

PinnePs Case 28, 529 

Pintard v. Tackington 156, 520 

Pipon V. Cope 405 

Pippett V, Heam 449 

Pirie r. Anderson 378 

Pitcher v. Bailey 115 

V. Barrows 485 

V. Livingston 264 

V. Tovey 289 

Pitkin V, Fnnk 104 

Pitt V. Chappelow 164, 165 

r. Donovan 428 

V. Smith 300 

v. Yalden 144, 145 

Pittam ». Foster 441 

Pitts V. Gaince 226 

V. Tilden * 268 

Pittsburg & Con. R. R. Co. v. 

Andrews 222 

r. McClurg 222 

r. Pillow 280 
Pittsburg, C. & S. R. R. Co. v. 

Henuigh 222 

Planche v. Colbum • 104 

t;. Fletcher 896 

Planck V. Anderson 599 

Planing Machine Co. v, Keith 501 

Plant V, Gunn 301 

Planters' Ins. Co. v. Diggs 405 

f?. Sorrells 377 

Piatt V, Tuttle 644 

Pleasant o. Benson 324 

Plenty v. West 681 

Plomer v. Long 529, 534 

Pluckwell V. Wilson 220 

Plumer v. Marchant 349 

r. People 302 

Plummer t;.d[)ennett 449 

17. Gheen 455 

Plunkett w. Cobbett 418 

V. Penson 360 

Plymouth v. Carver 242 

Pocock 17. Billings 200 

Poiraard t;. Smith 430, 557 

Polden V. Bastard 659 a 

Polglase r. Oliver 601 

Polhill t;. Walter 280 a 

Polk 9. Cosgrove 299 

Pollard 17. Lyo;i 414 

17. Shaaffer 240 



Pollock t7. Pollock 
Polston t7. Lee 
Pomeroy ». Trimper 
Pomfret v, Ricrort 
Pond 17. Williams 
Ponsonby t;. Adams 
Pool V. Pratt 
Poole 17. Huskinson 

t7. Palmer 

t7. Smith 

t7. Symonds 
Pooley 17. Millard 
Poor 17. Robinson 
Pope 17. Biggs 

r. Davies 
Popkin 9. Popkin 
Popley 17. Ashley 
Poplin 17. Hawke 
Popplewell 17. Pierce 
Pordage p. Cole 
Porter i>. Cole 

17. Cooper 



Beetlon 
41 

426 
561 
658 
444, 531 a 
259 
460 
662 
161 
156 
687 
156 
554 
566 
284 
53 
623 
672 
230 

297 



126 

17. Hannibal, &c. R. R. Co. 232 h 

t7. Hill 440 

17. Judson 180, 183 

17. Noyes 242 

17. Parmley 139 

17. Sayward 265, 589 

17. Taylor 242, 518 

Porthouse i7. Parker 164 

Portland Bank v. Stubbs 642 

Portland Dry Dock, &c. Co. t7. 

Portland 279 

Portman i7. Klemish 345 

Portsmouth Ins. Co. v, Reynolds 406 

Post 17. Campan 244 

Postlethwaite v. Mounsey 347 

17. Parkes 88, 678, 574 

Postmaster-Gen. v. Furber 533 

17. Ridgway 292 

Pothonier v. Dawson 645 

Pott 17. Cleg 112 

17. Eyton 481 

Potter v. Lansing 699 

17. Morland 251 

v. Suffolk Ins. Co. 891 

17. Tyler 200 

17. Warner 232 a 

V. Webb 672 

Potts w. Ward 79 

Pouverin v. Louis State Ins. Co. 379 

Powell 17. Bagg 624 

17. Deveney 282 h 

V. Gudgeon 387 

V. Henry 64 a 

V. Little 618 

17. Powell 463 

17. Waters 207 



INDEX TO CASES CITED. 



Ixv 





Swstton 


Pbwer V, Butcher 


113 


9. WellH 


103 


Bowers v. Rnmell 


2^7 


Powley ». Newton 


338 


p. Walker 


106, 251 


Pownall V. Ferrand 


114 


Poynton v. Forster 


452 


Pratt V. Ayler 


272 


V. Ford 


425 


r. McCalloagh 


674 


V. Putnam 


66,141 


0. Sanger 


659 a 


V. Swaine 


435 


9. Thomas 


106, 260 


r- Van Cleve 


674 


Pray v, Maine 


518 


o. Pierce 


556 


V. Waterston 


686 


Prentiss v. Smith 


685 a 


Prescott, Re 


681 


V. Finn 


65 


V. HubbeU 


249 


V. Nevers 


430 


0. Trueman 


241,242,244 


V. Wright 


635 a, 642 


Preggrave v. Saunders 


563 


Preston v. Boston 


111 


V. Christmas 


28,31 


V. Grayson County 


518 


Prettyman «. Waples 


338 


Price V, Hewett 


368 


V. Marsh 


64 


V. Neale 


122 


r. Stone 


585 


Prichard v. Campbell 


624 


Prideauz v. Colher 


205 


Pridgen v. Pridgen 


674 


Priest r. Cummmgs 


19 


V. Nichols 


277 


Priestley p. Fowler 


232 6 


Prince V, Wilboum 


659 


Priugle V, Wemham 
Pritchard o. Atkinson 


471 


242,662 


V. Brown 


295 


V. Papillion 


253 


V. Powell 


538 


Probart v, Knouth 


365 


Proctor V, Adams 


627 


V. Hodgson 


658 


t;. Lainson 


583 


V. Proctor 


52 


r. Williams 


78 


Proctor's Case 


136 



(Propr's of Kennebec Purchase. 

See *♦ Kennebec Propr's.*') 
Propr's Locks, &c. v. Nashua, &c. 

Ry. Co. 557 

Ptopr's Trent Nav. v. Wood 219 



Seetloii 

Prosser v. Chapman 26 

V. Woodward 562 

Protchett r. Schaefer 36 

Prouty V, Draper 506 

Provender v. Wood 110 

Provost c. Calder • 233 

Public Parks Department, Re 557 

Puckfoi-d V. Maxwell 520 

Pujolas p. Holland 274 

Pullen V. Gliddeu 458 

p. Hutchinson II b 

Puller p. Halliday 201 a 

p. Staniforth 261 a 

Pullman Palace Car Co. v. Smith 211 

Purceli p. Macnamara 453, 454, 455 

Purdy p. Austin 440 

p. Powers 480 

Pursell p. Horn 84 

Purves P. Landell 144 

Putnam v. Bowker 660 

r. HoUender 487 

p. Home Ins. Co. 377 

p. Mercantile Ins. Co. 379 

p. Putnam 48, 460 

p. Ritchie 549 

p. Sullivan 172 

p. Tillotson 251 

V. Wyley 614 

Putnam Free School p. Fisher 557 

Putney v. Lapham 24 

Pyer p. Carter 659 a 

I^nchon p. Stearns 656 



Q- 

Quarles p. Littlepage 342 

Quarman p. Burnett 232 a 

Quebec Mar. Ins. Co. p. Com. Bk. 

of Can. ^00 

Queen, The p. Millis 460 

Quigley p. C. P. R. R. Co. 267 

Quimby p. Buzzell 295 

p. Melvin 74 

Quincy p. Rogers 681 

Quincy Mining Co. p. Kitto 232 b 

Quinu p. Donovan 232 a 

p. Fuller 171, 478 

p. Kimball 561 

p. State 662 



R 



Rackham p. Jessup 618 

Raddin p. Arnold 636 

Radich p. Hutchins . 121 

Radkin p. Powell 661 



VOL. II. 



Ixvi 



mDEX TO CAS£S CITED. 



Rafferty v. People 
Bailroad Co. v. Butler 

V. Lockwood 

9. Manuf. Co. 

V, Pratt 

r. Sprayberry 
Bains v. McNaiiy 
Rainwater v. Durham 
Rainy v. Bravo 
Rambler v. Tryon 
Ramchander r. Hammond 
Ramsay v. Quinu 

9. Warner 
Ramsdell v, Soule 
Ramsden v. B. & A. R. R. 
Ramuz v, Crowe 
Rand v. Sargent 
Randall v. Beatty 

V. Cleaveland 

V. Everest 

V, Randall 

V, Rich 

V. Rotch 

V. Sweet 

V. Van Vechten 
Randle v. Webb 
Randleson, Ex parte 

V. Murray 
Randolph t;. Kinney 
Randon v. Tobey 
Ranker v. Carey 
Rankin v. Roler 
Ransone v. Christian 
Raphael r. Bk. of England 
Rapp V. Palmer 
Rapson v. Cubitt 
Rathbone v. Orr 
Rathbun r. Rathbon 
Ratliff V. Hantly 
Ravee v. Farmer 
Ravenga v. Mclntoeh 
Ravenscroft v. Hunter 
Rawlins, In re 
Rawlinson v. Clarke 
Rawson v, Morse 

V. Pa. R. R. C(K 

V. Putnam 
Ray v. Hill 

V. Law 

V. Lines 

V. Walton 
Raymond r. Baar 

V, Beamard 

V. Merchant 
Rayne v. Orton 
Rayner v. Kinney 
Reab o. McAllister 
Read o. Bertrand 



Motfon 

874 

261 

215, 222 

212 

210 

210 

646 

365 

414 

690 

447 

232 2» 

631a 

112 



Co. 



68 
156 
621 
683 
651 
258 

45 
113 
249 
365 

62 

95 

127, 533 

232 a 

240 

440 

199 

292 

426 

172 

251 

232 a 

491 

297 

272 

74 
459 
681 
676 
481 
625 
216 
619 
678 
449 
539 a 
675 
124, 523 
104 
520 

31 
418 
136 

88 



Read v, Dnnsmore 


11 d 


V, French 


141 


V. Goldi'ing 


608 


V. Howe 


551 


V. SjMialding 
Ream o. Rank 


219 
88, 226, 273 


Reay v. Packwood 


207 


V. White 


80 


Reddie v, Scoolt 


578 


Reddin v. Gates 


84,80 


Reddin^n v. Farrar 
V. Woods 


11a 


172 


Redman v. Hendricks 


563 


V. Wilson 


887 


Redmond v. Liv., N. Y. 


& Phil. 


St. Co. 


210 


Redpath v. West. Un. Tel. Co. 222 a 


Reece ». Rigby 


144 


V. Taylor 


95 


Reed v. Batchelder 


867 


V, Bias 


272 


V. Cutter 


492, 507 


V. Davis 


89, 269 


V. Haskins 


153 


V. McGrew 


124 


V. Northfield 


662 


V, Prentiss 


186 


V. Price 


626 


V. Reed 


656 


t;. Spaulding 


219 


r. Taylor 


449,454 


V. Upton 


520 


». Wilson 


178 


V. W^oodward 


674 


Reedie r. N. W. R. Co. 


282 6 


Reedy v. Seixas 


189 


Reel V, Reel 


690 


Rees r. Marq. of Headfort 


172 


V, Waters 


76,78 


Reeside, The 


249, 251 


Reeves r. Morris 


561 


Reg^io V. Braggiotti 


202 


Regma v, Cotesworth 


84 


v. East Mark 


662 


V, Hill 


871a 


0. James 


82 


r. Leicestershire 


286 


V, Lovett 


416 


v. Moreau 


90 


V, Newton 


461 


V. Petrie 


662 


V, Robins 


577 


V. Simmonsto 


49, 461 


». Upton 
V. Watte 


461 


472 


Rehoboth r. Hunt 


11a 


Reid V. Fumival 


205 


t?. Payne 


187 



INDEX TO CASBS CITED. 



Ixvii 



Beidinser v. Cleveland Iron M. Co. 317 

Reigncuds v. Edwards 660 

ReiUy v. Franklin Ins. Co. 407 
9. Jones 258, 259 

Reinhold v. Albert! 141 

Relyea v. Ramsay 80 

Remelee v. Hall 81 

liemington v. Congdon 421 
Bemington Paper Co. v. O'Dough- 

erty 297 

Remshead, Ex parte 79 

Renard v. Fiedler 123 
Renner v. Bk. of Columbia 156, 188 

Respublica r. De Longcliamps 84 

V. Roberts 48 

Revett V. Brovm 618 

ReviU V. Satterfit 576 

Revis V. Smith 421 

Rew r. Barber 523 
Rex 9. Almon 64, 416 

V. Barr 663 

v. Beare 416 

9. Benedict 662 

9. Bigg 62 

9. Bp. of Chester 120 

9. Bliss 663 

9. Bramley 151 

9. Brampton 463 

9. Bardett 416 

9. Clapham 363 

9. Commerell 450 

9. Cutler 504 

9. Dawes 471 

9. Downshire 659 

9. Gntch 416 

9. Hadden 498 

9. Hermitage 544 

9. HoTsley 641 
9. Hudson 689, 662 

9. Hunt 99 

r. Ins. Co. 405 

9. Johnson 416 

9. Kettleworth 450 

9. Leake 662 
9. Lloyd 662, 664 

9. Longnor 295 

9. Luffe 150 

9. Navestock 251 

9. Nichol 82 

9. Pearce 415 

9. Rosinski 82 

9. St. George 284 

9. St. James 665 

9. St. Michael's 239 

9. Sheward 627 
9. Smith 450, 660 

9. Stannard 426 

9. Sutton 412 



I 



Rex 9. Tippett 
9. Walter 
9. Watson 
9. Woodfall 
V. Wright 



Seetioa 
544 
416 
193, 416 
416 
662 



Reynolds v. Continental Ins. Co. 63 

9. Kennedy 457 

9. Ocean Lis. Co. 392 

9. Robinson 524 

Rhind 9. Wilkinson 880, 389 

Rhodes 9. Gent 180 a 

9. Vinson 681, 688 a 

Rice V, Barrett 483 

9. Coolidfi^e 421 

9. Hollenbeck 276 

9. Hosmer 483, 586 

V. Stearns ' 206 

9. Thompson 292 

9. Tower 405, 408 

Rich 9. Jones 106 

9. Keyser 98 

9. Lambert 220 

9. Topping 203 

Richard r. Boiler 296 

9. Wellington 648 

Richards 9. Gilbert 219 

9. Lond. & S. E. Ry. Co. 221 

9. Maryland Ins. Co. 432 

9. Peake 626 

9. Richards 309, 354, 424 

Richardson 9. Allan 166, 207 

9. Anderson 66, 393 

9. Atkinson 642 

9. Boston Chem. Lab. 605 

9. Chassen 254, 268, 268 a 

9. Dorr 241 

9. Duncan 111, 121 

9. Field 330 

9. Gilbert 512 

9. HaU 114 

9. Hine 93 

9. Jackson 605 

9. Lockwood 501 

9. Maine F. & M. Ins. Co. 390 

9. Reed 560 

9. Richardson 44 

9. Zuntz 93 

Richmond v. Heapy 480 

9. Judy 482 

9. Praim 288 

Richmond & D. R. R. Co. 9. 

Morris 222, 232 a 

Richter 9. Selin 190, 483 

Rickert 9. Snyder 244 

Rickets 9. Salwav 544 
Ricord 9. Central Pacif. R. R. Co. 455 

Riddell 9. Thayer 417 

Riddle 9. State 93 



Ixviii 



Riddle v, Sutton 
Rider V. Edgar 

V, Ocean Ins. Co. 
Ridley v. Taylor 

V. Tiiidall 
Ridlon V. Davis 
Riewe v, McCormick 
Rigden v. Wolcott 
Rigg V, Curgenyen 
Riggs V. Denniston 

V, Thatcher 
Right 0. Bawden 

V. Cuthell 

r. Price 
Riley v, Gerrish 

o. Home 

V. Water Power Co, 
Ring V. Cohoes 

V. Neale 
Ringgold V. Dunn 
Ripley i\ Colby 

V. Dolbier 
Rippoa V. Norton 
Risher v. The Frolic 
Rising V. Stanuard 
Risley t- . Baltinglass 
Rison V. Berry 
Rist 17. Faux 
Ritcher r. Selin 
Ritchey v. Daris 
Ritchie v. Putnam 

V. Sweet 
Ritger o. Parker 
Rittenhouse v, Tel. Co. 

Ritter*s Estate 
Rival's V, Griffiths 
Riviere v. Bower 
Rix r. Riz 
Roach V. Ostler 

V. Wadham 
Robbins v. Borman 

V. Clark 

V. Farley 

r. Otis 

V, Willard 
Robert o. Gamie 
Roberts v. Bayles 

V. Bethell 

V. Bradshaw 

V. Buck 

V. Camden 

V. Carr 

V. Connelly 

V. Dame 

0. Elliot 

V. Fisher 

V. Gallagher 



Section 
847 
597 
879 
203 

32 

28 
560 
275 
49, 286, 461 
427 
584 
327 
323 
674, 678 
163 
218, 219 
636 
230 
642 
440 
481 
642 
109 
528 
615, 622 
686 

73 
573 
190 
453 

19 
519 
660 
211, 222 a, 
261 
847 a 
608 
471 

41 
160 
240 
616 

69 
440 
440, 443 
484 
530 
455 
161 
191 
500 
417 
625, 664 
572 
626 
686 
523 
523 



VRER CITED. 






Seetkm 


Roberts r. Jackson 


800 


0. EaiT 


625 


r. Randel 


500 


V. Reed 


434 


V. Round 


682 


V. Swearingen 


297 


V, Trawick 


688 


• V. Wentworth 


597 


. V. Whiting 


556 


w. Woods 


847 


V. Wyatt 


637 


Robeiiaon v. Barber 


686 


V. Bennett 


414 


V, Cole 


463 


r. Crane 


644 


V. Ewer 


887 


V. French 


878 


V. Kennedy 


295 


V, Lynch 
V, McNiel 


104 


79 


r. Money 
Robeson v. Ganderton 


877 


181 


Robins v, Warde 


483 


Robinson t^. Adams 


689, 691 


V. Alexander 


447 


V. Ames 


195 


V. Austin 


208, 642 


V. Baker 


208 


V. Baugh 


467 


V. Bland 


39 


V. Burleigh 


431 


V, Cone 


94, 267 


V, Cook 


605 


t;. Dun more 


210 


V. Ferreday 


605 


V. Gosnold 


108 


V. Gould 


801,302 


V. Hindman 


261a 


V. Mansfield 


621 


V. Manuf. Ins. Co. 


883 


V. McDonald 


641 


V, People 


599 


V. Read 


523 


V. Rolls 


642 


V. Sprague 

V, United States 


644 


252 


r. Ward 


148 


17. Yarrow 


164, 165 


Robinson's Case 


138 


Robison r. Gosnold 


108 


V. Swett 


811 


Robson V. Godfrey 
V. N. E. R. R. Co. 


104 


221 


9. Rolls 


642 


Rochdale Canal v. Radcliffe 


539,548 


Roche V. Campbell 


180 a, 817 


Rochester v. Anderson 


93 


Rock V. Layton 


847 



INDEX TO CASES CITED. 



Ixix 



Section 

Bockfoid R. I. & St L. B. R. Co. 

p. Delaney 232 a 

Bock Island Nat Bk. v, Nelson 172 

Rockwell V. Saunders 561 

Rockwood o. Allen 253 

o. Wilson 467 

Roden o. Ryde 158 

Rodgers v. Nowill 253 

Bodick V. Coburo 642 

Rodney o. Strode 277 

Rodrigas o. East R. Say. Inst. 418 

V. Tadmire 454, 458 

Roe o. Chamock 251 

o. Doe 73 

9. Gore 462 

V. Harrison 325 

o. Haryey 303 

V. Lonsdale 317 

o. Lord 309 

V. Reed 331 

o. Rowlston 438 

V. Summarsett 315 

o. Swazey 357 

V, Wiggs 324 

Roemer o. Simon 500, 501 

Rogers v. Arnold 561, 563 

V. Beecher 487 

V. Clifton 419 

9. Crombie 205 

V. Danforth 236 

V. Fales 268 a 

o. Imbleton 226 

p. McCune 64 

V. Pitcher 565 

V. Rogers 51, 672 

p. Stephens 107 

p. Sumner 587 

Rogers's Case 372 

Rohan v. Hanson 531 a, 533 

Rokes V. Amazon Ins. Co. 406 

Rolfe V. Peterson 259 

Roll p. Northern Cent. Ry. Co. 221 

Rollins p. Chalmers 579 

Rollwagen v. RoUwagen 691 

Rolt p. Watson 156, 520 

Roof r. Stafford 367 

Rooke p. Midland R. Co. 208 

Rooke's Case 560 

Rookwood's Case 109 

Roop p. Brubacker 78 

Root p. Chandler 614, 621 

p. Fellowes 291 a 

p. King 275, 424 

Roper p. Harper 86 

Ropes p. Barker 273 

Rordasnz p. Leach 167, 478 

Rose p. B. & A. R. R. Co. 232 h 

p. Bryant 291, 444 



Rose p. Duncan 

p. Groyes 

p. Story 

p. Wilson 
Roseboom p. Billington 
Rose well p. Prior 
Roskell r. Waterhouse 
Ross p. Clifton 

p. Gould 

p. H miter 

p. Johnson 

p. Lapham 

p. Milne 

p. Overton 

p. Philbrick 
Rotan p. Fletcher 
Rotch V. Hawes 
Rotherham p. Green 
Rouse p. Southard 
Roux p. Salvador 
Rowcroft V. Lomas 
Rowe p. Young 
Rowell p. Montville 
Rowland p. Long 

p. Veale 
Rowlands p. Springett 
Rowley v. Ball 

p. Home 
Roworth p. Wilkes 
Rowson V. Earle 
Royce p. Burrell 

p. Nye 

p. Van Deusen 
Ruan p. Gardiner 
Ruble p. Turner 
Rucker p. Hiller 
Ruckham p. Marriott 



605 
474 
253 
98, 100 
291 
472 
209 
78 

430,558 
390 

213, 642 
424 
109 
78 
629 
648 
642 
544 
448 
392 
413 
174, 180 a 
662 
483 

597, 629 
189 
156 
216 
514 
142 
357 
163 
648 
252 
30 
195 
440 



Ruckmaboye p. Mottichund 437 

Ruckraan p. Ruckman 297 

Rudy p. Ulrich 688 

Ruf^y p. Henderson 638 
RufEuer p. Cincinnati H. & D. R. 

R. Co. 230 

Rugby Charity p. Merryweather 6G2 

Rugg p. Barnes 640 

Ruggles p. Eeeler 439 

p. LawBon 297 

p. Lesure 625 

p. Patten 180 h 

p. Sands 614 

Ruber p. Burnell 484 

RulofE's Appeal 674 

Rumsey p. Phcenix Ins. Co. 405 

Runcorn p. Doe 545 

Rundle p. Little 625 

Ruudlett p. Small 532 a 

Runyan p. Nichols 136, 143 

Rushby p. Scarlett 65 



Ixx 



INDEX TO GASES CITED. 



Bushworth v, Taylor 
Ru68 V. Butterfield 


SMtkm 
645 


507 


Russell V. Blake 


837 


V. Boehm 


380 


V. Coffin 


295 


V. Falls 


678 


V. Jackson 


658 


V. Kelley 


417 


9. Ledsam 


489 


V. Lewis 


556 


r. Livingston 


211 


V, Lvtle 

i;. Men of Deyon 


31 
473 


V. Palmer 


145, 148, 270 


v. Scott 


616 


V. Skipwith 

V. S. Britain Soc. 


19 


103 


V. Tomlinson 


277 


V, Tomer 


599 


Rust r. Baker 


855 


Rustell r. Macquister 
Rutherford v, Evans 


418 


414 


V, Mclvor 


123 



Rutland's (Countess of) Case 649 

Rutton V, Kutton 41 

Ryan v. Chic. & N. W. R. R. Co. 232 b 

V. Clarke 626 

V. Cumberland, &c. R. R. 232 b 

V. Goodwin 489, 498, 504 

V, McLeod 357 

Ryder v. Lord Townsend 605 

Ryerson v. Chapman 244 

Rymes v. Clarluon 681 



S. 



Sackett v. Owen 78 

Sackrider v. McDonald 270, 279 

Sacramento, &c. Bank o. Hynes 303 

Sadler v. Evans 124 

V. Kennedy 52 

Safford v. Annis 243 

Sage V. Barnes 662 

t;. Dickinson 594 

V. Ensign ' 441 

Sager t;. Portsmouth R. R. Co. 215 

V, P. S. & P. R. R. Co. 218 

V. Tupper 483, 484 

Salem Bank v. Gloucester Bank 68, 

124, 159, 523 

Salisbury v. Brisbane 68 a 

V. Gourgas 642 

r. Hale 186 

Sallows 17. Girling 74 

Salmon v. Horwitz 649 

t). Smith 133 

Salomons v, Stavely 155 



Seetion 

Salop (Countess of) v. Crompton 615 

Saltmarsh t;. Tuthill 188 

Salt Spriugs Nat. Bk. v. Burton 178 

Saltus V. Commercial Ins. Co. 401 

Salvatelli v, Ohio 417 

Sampson v. Coy 271, 278 

V, Easterby 240 

V, Henry 89, 98, 618 

V. Smith 97 

V. Whitney 111 

Samuels v. Agnew 560 

V. Evening Mail Ass. 420 

Sanborn v. Baker 587 

0. Fireman's Ins. Co. 877 

V. Morrill 646 

t;. Neilson 51 

t;. Southard 190 

Sandback v. Thomas 456 

Sanders v. Reister 282 a 

Sanderson v. Bowers 180 a 

V. Busher 888, 884 

V. Lamberton 210 

Sandford v. Dillaway 195 

V. Mickles 199 

Sands t;. Gelston 441, 442 

Sandwich v. Fish 583 

Sanford v. Clark 448 

V. Gaddis 414 

Santee v. Reister 817 

Santer v. N. Y. C. R. R. Co. 282 a 

Sapsford t;. Fletcher 566 

Saragossa, The 218, 222 a 

Sarefl v. Wine 168, 842 

Sargent v. Adams 103 

t;. Appleton 201 

V. Ballard 539, 548 

o. Blunt 640 

t>. Franklin Ins. Co. 261 

V. Larned 606 

V. Morris 212 

V. Parsons 87 

V, Bobbins 163 

V. Southgate 200 

Sartwell w. Frost 67 

Sasportas t;. Jennings 801 

Satterlee v. Frazer 141, 147 

t;. Meelick 102 

Satterthwaite v. Dewhurst 575 

Sauer r. Griffin 857 

V. Schulenberg 256 

Saunders v. Darling 586 

V. Edwards 433 

V. Frost 605 

V. Graham 604 

V. Mills 424 

V, Saunders 434 

Saunderson v. Baker 580, 582, 621 

V. BeU 51S 



INDEX TO CASES CITED. 



Ixxi 



Saunderaon v. Nicholl 
Sauflser v. Steinmetz 
Savage v. Brewer 

V. Lane 

V, Smith 



SMtion 

261 

449, 457 

347 

596 



Savannah & M. R. R. Co. v. Lan- 
caster 295 
Savery ». Goe 607 
Savill V. Barchard 252 
Saville r. Roberta 449 
V. Robertson 488 
Savory, In re 674 
V. Chapman 141 
Sawyer v. Erfert 424 
V. Hopkins 424 
V. KendaU 543, 557 
V. Mercer 848 
V. MiUer 494 
V. Saner 253 
Sazton V. Johnson 112 
Sayer v. Kitchen 161 
Sayle v. State 22 
Sayles t;. Briggs 450, 452 
Sayre o. E. of Rochford 96, 633 
Scales V. Jacob 410 
Scheffer r. Nat. L. Lis. Co. 409 
Scheibel r. Fairbain 453 
Schenck v. Cuttrell 230 b 
V, Mercer County, &c. Ins. Co. 406 
Schermerhorn v. Van Volkenburgh 648 
Schillinger r. Gonther 487 
Schindelr. Gates 441 
Schloss o. Cooper 614 
Schlosser v. Lesher 431 
Schmidt v. Chicago &c. R. Co. 232 a 
V. N. y. Un. Mut. Lis. Co. 408, 

426 

Schmisseur v. Kreilich 414 

Schneider v, Piessner 354 

Scholey p. Halsey 121 

V, Walsby 170 

V. Walton 441 

Scholfield V. Bayard 195 
Schopman v. Boston & W. R. R. 

Co. 222 

Schrimshire v. Schrimshire 460 

Schulenberg v. Harriman 561, 563 

Schultz 9. Astley 164 

Schulze 9. Fox 414 

Schwartz v. Atlantic, &o. Tel. 

Co. 222 a 

Scofield p. Tompkins 257 

Scott 9. Avery 69 

9. Brest 284 

9. Delaney 651 

0. Elmendorf 141 

9. Galloway 295 

9. Home Ins. Co. 408, 426 



Scott V. Hull 
9. Kirkendall 
9. McLellan 
9. Nelson 
9. Nichols 
9. Ray 
9. Shelor 
9. Shepherd 
9. Simpson 
9. Waithman 
9. Wilson 



Beotton 

247 
244 
203 
107 
435 
536 
454 
84, 94, 226 
455 
586 
457 



Scotthoru 9. So. Staffordshire Ry. 

Co. 210 

Scoville 9. Griffith 208 

Scrace 9. Whittington 138 

Scripps 9. Foster 423 

9. Reilly 421 
Scripture v, Lowell, &c. Ins. Go. 887, 

405 

Scruby 9. Fordham 681 

Scrugham v. Wood 297 

Scudder 9. Worster 561 

Scurry v. Freeman 284 

Seabrook v, Moyer 135 

Seager v. Slingerland 578 

Seago 9. Deane 107, 126, 127 

Seaman 9. Netherclift 421 

Seamans 9. Loring 382 

Searight v. Calbraith 603 

Searle 9. Price 45 

Searls v. Ronton 500 

Sears 9. Dillingham 691, 692 

r. Lyons 272 

Seaver v. Dingley 560, 561 

9. Lincoln 179, 188 

9. Phelps 369, 370 

9. Seaver 113 

Seaward 9. Lord 443 

Sechel v. Lambert 460 

Secor 9. Babcock 455 

Seddon 9. Senate 243 

Sedgwick 9. Hollenback 241, 243 

Sedley 9. Sutherland 86, 624 

Seely 9. Boon 21 

Seers 9. Hind 245 

Seibert 9. McHenry 583 

9. Price 454, 455 

Seighman 9. Marshall 518 

Selby V, Barddns 95 

Selden 9. Beale 118 

9. Hickock 646 

Selkirk 9. Adams 75 

Sellers 9. Holman 528 

9. Pennsylvania, &c. Ry. Co. 466 

9. Till 412 

Semmes 9. Hart. Ins. Co. 437 

Semple 9. Cook 557 

Senat 9. Poi*ter 385 



Ixxii 



INDEX TO CASES CITED. 





SMtioo 


Senecal v. Labadie 


($2C 


Senhouse v. Christian 


471 


8entance v. Poole 


870 


Ser^^esou v, Sealey 


278 c/ 


Serjeant o. Bluut 


640 


Seton 17. Low 


896 


Beven Bishops' Case 


416 


Severance v. Kimball 


302 


Severin v. Eeppell 


642,644 


Severn v. Keppdl 


644 


Severy ». Nye 


18 


Sewall V. Sparrow 
Seybel v. ^at. Com. Bank 


201a 


172 


Seyds r. Hay 


642 


Seymour v. Greenwood 


68 


V, Maddox 


232 6 


V. McCormick 


496, 507 


17. Minturn 


28 


t7. Prescott 


301 


V. Van Slyck 


529, 530 


Seymour's Case 


682 


Shadwell v. Hutchinson 


469 


Shafer v. Smith 


89,273 


Shafher v. State 


460 


Shafter i;. Evans 


230 


Shailer v. Bumstead 


690 


Shaller v. Brand 


679 


Shamburg v. Commagere 


207 


Shank v. Case 


420 


Shannon t7. Comstock 


261a 


r. Shannon 


561 


Shapleigh v. Pilsbury 


556 


Sharon t7. Gager 


301 


Sharp 17. Bailey 


195 


17. Grey 


221, 222 


t7. Hawker 


147 


V. United Ins. Co. 


378 


17. Whittenhall 


560 


Sharrod v, Lond., &c. R. Co 


224 


Shattuck 17. Allen 


411, 421 


17. Hammond 


58,579 


17. Lamb 


243 


17. Maley 


454 


17. State 


288 


Shaver v. £hle 


206 


Shaw 17. Broom 


200 


17. Coffin 


368 


V. Cooper 


504 


17. Crawford 


589 


17. Dartnall 


118 


v. Gardner 


219 


v. Gould 


150 


17. Mitchell 


251 


r. Neville 


676 


V, Nudd 


261 


17. Picton 


118, 536 


v. Reed 


68 


17. Robberds 


405, 408 



251 
64a 
594 
121 
267 
242 
421, 424 
198 



Shaw 17. Spencer 

V. Stone 

V. Tunbridge 

i\ Woodcock 
Sheahan o. Barry 
Shearer v. Ranker 
Sheckell v. Jaclson 
Shed V. Brett 
Shedd r. Washburn 

17. Wilson 
Sheehy v. Burger 
Sheels v. Davies 
Sheetz t7. Longlois 
Sbelbume Falls Nat. Bank 

Townsley 188 

Shelby i7. Heariie 240 

Sheldon v, Ferris 278/ 

17. Payne 582, 587 



494 
533 
230 
186 
242 



p. 



17. Soper 
Shelley's Case 
Shelton v. Braithwaite 
Shenk v. Phelps 

V. Phila. St. Prop. 
Shepard t7. Johnson 

r. Merrill 
Shepherd t7. Briggs 

17. Bristol & £z. By. Co. 
* V. Hampton 

17. Temple 

». Watrous 
Shepley v. Abbott 

V. Fifty Associates 
Sheppard v. Sheppard 
Sherburne v. Rodman 
Sheriff i7. Wilkes 



640 
346 
189 
301 
210 
261 
274 

78 
210 
261 
136 

78 
440 
472 
651 
459 
159 



Sheriffs of Norwich v, Bradshaw 590 
Sherman i7. Conn. R. Bridge 11a 
17. Hannibal, &c. R. R. Co. 222 
Sherron v. Wood 78 

Sherry v. Schuyler 635 a 

Sherwood v. Sutton 448 

Shewell v. Fell 599 

Shilcock 17. Passman 144 

Shillaber v. Wyman 344 

Shipley v. Todhunter 416, 421 

Shipman v. Burrows 426 

Shippen p. Curry 
Shipwick 17. Blanchard 
Shires t7. Glascock 
Shirley i7. Todd 
Shislerv. Yandike 
Shi tier v. Bremer 
Shock 17. McChesney 
Shoemaker p. Benedict 
Shoman p. Allen 
Shores p. Caswell 
Shorland p. Govett 
Short p. McCarthy 



509 
648 
678 
200 
68 
440 
462 
444 
142 
141 
622 
433, 435, 448 



INDEX TO CASES CITED. 



Ixxiii 



Short V. Pratt 
Shortley «. Miller 
Shott V. Strealfield 
Shotwell r. Few 
ShoTO V. Webb 
Shrewsbury v. Smith 
Shrewsbury Peerag;e Case 
Shriver v. Sioux City, &c. 

Co. 
Shnlt V. Baker 
Shumway r. lIolbix)ok 
Shurtleff 9. Stevens 
Shute V. BaiTett 
Shuttle worth p. Stephens 
Sibley t;. Lambert 

V. Phelps 
Sibree v. Tripp 
Sicard v. Davis 
Sice V. Cunningham 
Sickles V. Mather 
Sidford v. Chambers 
Siemers v. Eisen 
Sigfried v. Levan 
Siegers v. Brown 
Sikes r. Johnson 
Sill t;. Rood 
Silloway v. Brown 

V. Neptune Ins. Co. 
Sills 0. Lamg 
Silsby V, Foote 
Simar v. Canaday 
Si mister's Patent 
Simkins v. Norwich, &c. St 
Simmons v. Anderson 
Bradford 
Norton 
Simmons 
Swift 

V. Wilmott 
Simon v. Bradshear 
Simonds v. White 
Simon ton o. Barrell 
Simpson v. Bowden 

V. Eggin^n 

«. l£hwkins 

V. Lewthwaite 

0. McCaffrey 

V. Morris 

V. Robinson 

V. Snyder 

V, Swan 

r. Walker 
Sims o. Gray 

V. Davis 

r. McLendon 
Sinclair v. Eldred 

9. Howe 

V. Jackson 



V. 
0. 
17. 

v. 



Section 

74 
420,426 
484 
645 
124 
618 

278 17 
R. R. 

219 
651 
692 
421 
269 
206 
440 
444 
28 
296 
199 
445 
165 
230 
295 
195 
270 
136 
616 
392 
114 
507 
230 a 
494 
. Co. 210 
638 

145, 599 
656 
42 
638 
605 
141 
893 
141 
108 
518 
539 
659 
267 
84,98 

418, 421 
345 

117, 118 
687 
831 
539 
454 

453, 456 
666 
831 



Section 

Singer Manuf. Co. v. Rawson 301 

Singerly v. Fox 641 
Singleton v. St. Louis, &c. Ins. 

Co. 409 

Six Carpenters' Case 270, 569, 607, 

615, 622, 628 

Six Hundred and Thirty Casks 218 

Skaife v, Jackson 517 

Skee ». Coxon 79 

Skelding v. Warren 204 

Skeltou V. Hawling 347 

Skevill i;. Avery 98 

Skillen v. Merrill 114 
Skilton V. Winslow 5, 60 

Skinner v. Lond., &c. Ry. Co. 222 

V, Stocks 109, 478 

V, Upshaw 648 

Slaney.f. Wade 462 

Slater t>. Jepherson 557 

V. Mersereau 230 

V, Rawson 240, 654 

V. Swann 231 

Slater Mutual F. Ins. Co. Re 435 

Slaughter v, Barnes 582 

Slaughter House Cases 138 
Sledge V. Pope 
Slegg V. Phillips 
Sleght r. Kane 
Slight V. Gutzlaff 
Slingerland v. Morse 
Sliver v. Shelback 
Sloan V. Holliday 
Sloane v. Petrie 
Slocum V, Fairchild 
Sloman r. Cox 



V. Heme 

V. Walter 
Slosson V. Beale 
Sluby V. Champlin 
Sly V. Edgeley 
Small V. Gibson 

17. Gray 

». Proctor 

V. Small 

V. Smith 
Smalloomb v. Cross 
Smart v. Hutton 
Smedley v. Hill 
Smee v. Smee 
Smeed v. Ford 
Smith V. Allison 

V, Anders 

V. Ashley 

V. Atlantic, &c. Ins. Co. 

V, B. & M. R. R. Co. 

17. Bank of Washington 

V. Barrow 

V, Bartholomew 



88 
204 
437 
472 
603 
362 
544 
420 
219 
523 
584 
258 

258, 259 

441 

232 6 

400 

451 

430, 558 

672, 675 
172 
593 
580 

348, 349 

689 

256 

51 

601 

421 

26 

232 a 

186 

838 

619 



Ixxiv 



INDEX TO CASES CITED. 



8«ctkiD 

Smith V, Birmiugham Gas-Light 



Co- 
V. Bodine 
V. Bonsall 
17. Bossard 
V. Bowditch 

V. Bowditch, &c. Ins. Co. 
V. British, &c. Packet Co. 
r. Bromley 
17. Brotherline 
V. Brown 
V. Chester 
17. Colby 
V, Compton 
V. Davis 
17. Dedham 
0. Derr's Adm'rs 
c. De Wruitz 
0. Dickenson 
t;. Dovers 
0. Ege 
V. Ely 
V. Fenner 
V. Flanders 
V. Flora 
V. Fox 
t?. Fuge 
V. Goodwin 
17. Green 
V. Hart 
V. Ilayward 
r. Iligbee 
t7. Hill 
V. Hodson 
V. Hollister 
t7. Howard 
17. Hughes 
17. Hulett 
V. Jewett 
V. Jones 
r. Kelley 
9. Kingsford 
V. Knapp 
V. Knowelden 
17. Livingston 
17. Lloyd 
V. Lord 
V. Lovett 
17. Lusher 
r. Macdonald 
9. Marsack 
t7. Hasten 
17. Mayo 
V. McCampbell 
17. McClure 
V. McManns 
17. Mercer 
17. Milles 



62 
481 
672 
141 
147 
406 
222 
121 
149 

28 

165, 166 

642 

113, 114, 116 

459 

468 

50 
200 
258 

19 
455 
489 
690 
261 
662 
433 
378 
226 
268 a 
599 
281 
660 
439 
108 
414 
421 
242 
484 
656 
686 
867 
261 a 
599 
lid 
172 
241, 557 
160 
207 
478 
457 
164 

58 
367 
242 
14, 160 
183 
122 
339, 614 



Smith V. Moore 
V. Nissen 
V. Oliphant 
17. Overly 

17. Oxford Iron Co. 
V. Pickering 
17. Plomer 
«. Robertson 
V. Robinson 
t7. Royston 
V. Rutherford 
r. Scott 
V. Screven 
17. Sear 

r. Shackleford 
V. Shaw 
Vm Shepherd 
V. Sherman 
V. Smith 



0660011 

200 
114 
865 
267 

282 6 
166 
640 
892 

180 6 
626 
224, 623 
887 
529 
164 
452 
434 
219 
256 
104, 112,' 220, 259, 
473, 527 
428 
662 
672 
412 
681 
279 
444 
74, 189, 190 
533 



V. Spooner 

17. State 

f7. Steele 

t7. Taylor 

». Wait 

t7. Webb 

t7. Westmoreland 

t7. Whiting 

17. Wigley 

17. Williams 379 

V. Williamson 561 

17. Wood 415, 421 

V, Woodruff 498 

17. Wright 249, 481 

17. Yaryan 571 

V. Young 644 

Smith's Will 676, 681 

Smithson v. Garth 277 

Smout 17. Ilbery 230 a 

Smyrl i;. Niolon 219, 377 

Snell 17. Phillips 431 

17. Snell 800 

17. Snow 417 

Snow V. Allen 459 

17. Carpenter 24 

V. Eastern R. R. Co. 213 

17. Franklin 28 

V. Orleans 297 

17. Perry 522, 601 

». Snow 54 

17. Union Ins. Co. 392 

17. Ware 261 

Snowball v. Goodricke 583 

Snowdon v. Davis 121 

Snyder v. Andrews 424 

r. Fulton 275 

17. Pittsburgh, &c. Ry. Co. 232 a 

Sohier v, Eldridge 656 



INDEX TO CASES CITED. 



Ixxv 



Saeticm 

Sohier 'v. Norwich Fire Ins. Co. 406 

Soilleauz v. Soilleaux 41, 46 

Solomon v. Turner 199 

Solomons v, Bk. of England 172 

V. Dawes 645 

V. Medex 227 

Somers t;. Balabrega 141 

t;. Schmidt 244 

Somersett v. Jarvis 642 

Somervill v. Hawkins 421, 422 

Somerville o. Dickerman 72 

Somes o. Skinner 240, 317 

Sommer v. Wilt 253, 449 

Sonder v. Schechterl^ 533 

Sonnbom v. Bernstein 418 

Sopwith V, Sopwith 46, 52 

Sonlden v. Van Rensselaer 431 

Soule V. Bonney 302 

Soulsby V, Hodgson 73 
SQuth & No. Ala. R. R. Co. v. 

Thompson 232 a 

Southard v. Rexford 253 

Soubhey v. Sherwood 515 

Southwick V. Estes 68 

V. Hayden 517 

Soutliworth V, Smith 611 

So ward v, Leggatt 245 a 

Sowden v. Idaho Quartz M. Co. 232 b 

Spaid 17. Barrett 301 

Sparhawk v. BarUett 586 

V. Bollard 307 

Sparks v. Purdj 643 

Spari-ow p. Chisman 480 

Spauldiug V. Barnes 641, 642 

w. Vanderoook 136 

Spear v. Newell 35, 39 

Speck o. Judson 454 

Spect V. . Gregg 307, 318 

Speed 17. Atlantic, &c. R. R. Co. 232 b 

V. Buford 554 

Speight V. Oliviera 574 

Spence v. Healey 236 

Spencer v. Billing 483 

9. Daggett • 219 

V. Halstead 261 

V. Hartford 524 

V. Marriott 243 

V. Milwaukee & P. R. R. Co. 222 

V. Roper 278/ 

». Tilden 258 

Spencer's Case 240 

Spiering v, Andne 414 

Spies V. Newbury 186 

Spinetti v. Atlas S. S. Co. 215 

Spofford V. Norton 163 

Spooner v. Holmes 642 

V. Rowland 520 

p. Warner 291a 



Spoor V. Holland 
Sprague v. Baker 

V. Kneeland 

V. Waite 
Spratt V. Spratt 
Spray v. Ammerman 
Sprigge r. Sprigge 
Spring 17. Coffin 

V. Gray 
Springfield r. Hampden 
Springstein v. Field 
Sprowl 17. Kellar 
Spybey v. Hide 
Squire 17. Hollenbeck 



fi60tiOD 

637 

149, 240, 244 

563 

662 

19,20 

620 

681 

124 

447 

662 

424 

219 

608 

272, 635 a 

Squires r. West. Un. Tel. Co. 261 

Staak V. Sigelkow 300 

Staats r. Ten Eyck 264 

Stacey v. Emery 453, 454 

17. MiUer 662 

Stacy V. Vt. Cen. R. R. 135 

Stafford t;. Clark 231 

V, Richardson 433 

Stafford Canal Co. v. Hallen 473 

Stammers v. Dixon 614 

Stanard v. Eldridge 242 

Standen t7. Standen 151, 461 

Stanley v. Barnes 668 

V. Gaylord 616 

V. Kean 672 

V. Perley 556 

V. Towgood 245 a 

17. Webb 421 

Stannard v. Ullithome 149 

Stante v. Pricket 47, 86, 624 

Stanton v, Stanton 440 

V, Wilson 365 

Stanway v, Rubio 303 

Stan wood r. Scovel ' 11 6 

17. Whitmore 209 

Staple t7. Spring 472 

Staples V. Hayden 659 a 

V. Okines 205 

Starbuck v. New Eng. Ins. Co. 400 

Staring v. Bowen 679 

Stark V. Chesapeake Ins. Co. 19 

17. Parker 136 a 

Starkey i7. Mill 109 

Starr v. Jackson 614 

State 17. Armfield 623 

v. Bartlett 373 

17. Bates 47 

17. Bigelow 662 

17. Bowles 153 

0. Brunson 48 

17. Bmntley 302 

17. Campton 660, 662 

». Carver 662 

0. Catlin 662 



Ixxvi 



INDEX TO CASES CITED. 



State v. Cheston 

». Colby 

V. Davis 

V. Dunn 

». Fellows 

r. Felter 

V. Flemming 

r. Guild 

V. Hamilton 

17. Herman 

V. Heselton 

V. Hickerson 

V. Hodgskins 

V. Hundley 

t\ Hunter 

V. Jackson 

t;. Jones 

V, Knowlton 

V. Lawrence 

V. Lonsdale 

V. Marble 

V, Martin 

v. Morse 

V. Mullen 

17. Nudd 

». Pearce 

0. Pike 

t7. Potter 

r. Richmond 

V. Roswell 

V. Spencer 

V. Spicer 

r. Trask 

9. Wallace 

V. Ward 

17. Wells 

17. Winkley 
State Bank v. Hard 

17. McCoy 
Stead 17. Anderson 

17. Salt 

9. W^illiams 
Steamer Niagara v. Cordis 
Steam t;. Mills 
Stearns v. Barrett 

17. Dean 

0. Haven 

17. Hendersass 

17. Sampson 

t7. Stearns 
Stebbing v, Spicer 
Stebbins n. Globe Ins. Co. 

V. Merritt 
Stedman t7. Gooch 

t7. Southbridge 
Steele v, Burkhardt 

r. Inland W. L. Nav. 

». Price 



Co. 



Seetioii 

847 a 
46,48 

84 
571 
423 
873 

18 
863 
509 
150 

22 
153 
461 
873 
662 
529 
373 

21 
873 
421 
662 

83 

278/ 

599 

662 

48 
373 

40 
867 
401 
873 
873 
662 

48 
18,22 
426 
462 
194 
171 
500 

71 

501a 

218 

347 

258, 492 

597 

477 

557 

619 

440, 441 

163 

408 

62 

520 

662 

232 a 

473 

688 a 



Steele v. Steele 435 

Steers v. Liv., N. Y. &Phil. St. Co. 216 



Steffy 0. Carpenter 


539, 543 


Stegall t7. Stegall 
Stenman'8 Appeal 


150 
89 


Steigleman r. Jeffries 


186 


Steinman r. Magnus 
Steinmetz v. Kelly 


28, 30, 526 


95 


Stenton i?. Jerome 


126 


Stephen v. Ballou 


55 


Stephens t7. Cady 


518 


V. Elwall 


645 


V. Myers 


82 


Stephenson v. Hart 


212, 642 


17. Piscataqua Ins. Co. 


892 


t7. Walker 


58 


Sterling 17. Adams 
V. Peet 


454 


264 


17. Warden 


98 


Sterndale t;. Hankinson 


583 


Stetler v. Chicago, &c. R. R. Co. 232 b 


Stetson 17. Faxon 


468 


t7. Mass. Ins. Co. 


408 


V. Nellis 


635 a 


Stevens v. Beals 


166 


r. Fassett 


459 


V, Gladding 


518 


t7. Lynch 


207 


17. Midland, &c. Ry. Co. 458 


r. Orr 


659 a 


t7. Reeves 


251 


V* Vancleve 


674 


17. Whistler 


616 


Stevenson v. Lambard 


240 


V. McReary 


462 


t7. Montreal Tel. Co. 


211, 222 a 


Steward r. Scudder 


251 


Stewart i7. Bedell 


236 


17. Doughty 


614 


V, Drake 


242, 244 


17. Hartman 


658 


17. Martin 


635 a 


V. Ripon 


267 


V. Sonnebom 


452 


17. Stewart 


812 



17. Terre Haute, &c. R. R. Co. 210 
t7. Wells 560, 588 

V. Wilson 417 

St. George's t7. St. Margaret's 

Parish 150 

St. Helen's Smelting Co. r. Tipping 467 
Stickle 17. Reed 288 

Stiles r. West 869 

17. White 262 

Still 17. Halford 71, 78 

V. Hall 136 

Stilson c. Tobey 280 

Stimpson r. Eggington 518 



INDEX TO CASES CITED. 



Ixxvii 



B60hO1I 

Siimpson v. Railroads 253 

Sdth 9. Lookabill 831 

St. James Church v. Walker 669 

St. John V. Standring 646 

9. Van SantYord 210 
St LoniB & S. £. R. R. Co. v. 

Dorman 222 a 

V. Mathias 232 a 

Stoallings o. Baker 481 

Stock o. Mawson 121 

Stockdale v. Hammond 421 

Stocker v. Brockelbank 481 

r. Harris 403 

V. Merrimack Ins. Co. 309 

Stockett V. Sassoer 440 

Stockley v. Homidge 463 

Stockman v. Parr 189 

Stockport Waterw. Co. v. Potter 467 

Stoddard p. Kimball 199, 200 

Stoddart v. Palmer 684 

Stoeyer v. Whitman 249 

Stokes V. Bate 838 

9. Brown 867 

V, Lewis 114 

r. Saltonstall 221 

Stone V. Codman 232 a, 276 

9. Crocker 271, 449, 463, 454, 456 

9. Damon 090 

9. Forsyth 316 

9. Marsh 618 

9. National Ins. Co. 390 

9. Seymour 630 

9. Sprague 611 

9. Stevens 449 

9. Swift 459 

9. Vamey 424, 425 

Stonehonse 9. Elliot 99, 621 

Storer o. Logan 203 

9. McGaw 607 

Storey 9. Crewson 605 

Story 9. ChaUands 421 

9. Odin 471 

9. Pery 366 

Story's £z*rs 9. Holoombe 614 

Stott 9. Stott 661 

Stou^ton 9. Lynch 629 

9. Mott 629 

Stoat 9. Jackson 264 

9. Prall 269 

9. Wren 85 

Stow 9. Converse 424 

Stowe 0. Thomas 614 

Stoytes v. Pearson 246, 300 

Strader 9. Snyder 417 

Strang 9. Holmes 28, 30 

Strange 9. McCormiok 232 a 

9. Powell 279 

Strayhom 9. Webb 618 



Seetkm 

Streeter 9. Horlook 104 

9. Sumner 103 

Streety v. Wood 421 

Striker 9. Oldenburg 666 

Strithorst 9. Gneme 437 

Strohm's Appeal 628 

Strong 9. Bliss 261 

9. Harvey 605 

9. Hobbs 625 

9. Manuf. Ins. Co. 379 

9. N. Y. Firem. Ins. Co. 393 

9. Strong 69, 78 

9. Williams 624 

Stroud 9. Dandridge 847 a 

Strough 9. Gear 172 

Strout V. Beny 626 

9. Dunning 665 

Strutbers v. Peacock 417 

Stuart 9. Lovell 418 

9. Whittaker 593 

Stubbs 9. Laiuson 692 

9. Parsons 666 

Studdy 9. Sanders 104 



Stultz V. Dickey 
9. Schseffle 
Stumm 9. Hummel 
Sturge V, Buchanan 
Sturges V. Bush 
V, Longworth 
9. Met. Bank 
Sturt V. Mellish 
Sturtivant v. State 
Sturton o. Richardson 
Styart 9. Rowland 
Suffem 9. Townsend 
Suffield, Lord, v. Bruce 



251, 614 

688 

677 

193 

87,89 

438 

172 

447 

662 

36 

126, 127, 629 

615, 627 

107 



Suffolk Bank v, Worcester Bank 607 

Suffolk Company 9. Hay den 496 

Sugden v. Lord St. Leonards 688 a 

Sullivan v. Holker 342 

9. Kelly 150 

V. Philadelphia, &c. R. R. 222 

9. Sullivan 695 

p. Un. Pac. R. R. Co, 232 a 

Sulston 9. Norton 287 

Summerhays 9. Kansas, &c. R. R. 

Co. 232 h 

Sumner 9. Sumner 440 

Sumter v. Lehie 832 

Surrey Canal Co. v. Hall 662 

Sutchffe 9. Brooke 69 

Suter 9. Ives 533 

Sutherland 9. Gt. West. Ry. Co. 211 
Sutton t;. Aikia 331 

9. Buck * 878, 627, 637 

9. Burgess 440 

9. Clarke 434 

V. Hawkins 605 



Ixzviii 



INDEX TO CASES CITED. 



Sutton 9. Johnstone 


271 


0. McConnell 


458 


V, Moody 


620 


V, Sutton 


681 


V, Toomer 


523 


t\ Waite 


586 


V. Wauwatosa 


223 a 


Swain o. Stafford 


455 


Swallow V. Beaumont 


300 


Swampecott Machine Co. 


p. Far- 


tridge 


251 


Swan V. Littlefield 


432 


v. Swan 


549 


V. Tappan 


418 


Swanston v. Ijams 


301 


Swartwout v. Payne 


523 


Swayn v. Stephens 


648 


Sweeney v. Baker 


421 


Sweet V, Barney 


212 


V. Benning 


512 


V. Boardman 


676 


r. Cutts 


230 6 


17. James 


520 


17. Negus 


449 


Sweeting r. Fowler 


163 


Sweetland v. Stetson 


618 


Sweetzer v. French 


478 


Sweigart o. Lowmarter 


89 


Swett V. Patrick 


264 


Swift V. Barnes 


261 


V. Bamum 


649 


r. Bennett 


365 


©. Stevens 


156 


Swindler v. Hilliard 


215, 219 


Swohoda v. Ward 


230 


Sykes v, Dunbar 


453,454 


Sylvester p. Crapo 
Symmons t;. Blake 


179, 199, 200 


418 


Symonds t;. Page 


336 


Symons v. Hearson 


627 



T. 



Tabart v. Tipper 

Tabler v. Delaware R. Co. 

Tabram v. Horn 

Taff V. Hosmer 

Taft V. Montague 

Taf;gard v, Loring 

Tamter v. Hemroenway 

Tait V. Harris 

Talbot V. Bank of Commonwealth 128, 

180 
V, Bank of Rochester 164 

V. Clark 207 

r. Gay 186 a 

V. Hodson 296 



424 

230 
139 
689 
104, 136 
878 
556 
86, 624 



Talbot V. McGee 

V, Talbot 
Talcot V. Commercial Ins. 

17. Marine Ins. Co. 
Tallman v. Tallman 
Tankersly v. Anderson 
Tanner o. Bean 

r. Bennett 

V, Smart 
Tapley v, Lebeaume 
Taplin r. Florence 

v. Packard 
Tappan v, Kimball 
Tappen o. Davidson 
Tappenden v. Randall 
Tarbox v. East. St. Co. 
Tarbuck t7. Bipsham 
Tarleton o. McGawley 
Tarling v. Baxter 
Tarver t;. Rankin 

t7. Tarver 
Tasker v. Bartlett 
Tassall v. Shane 
Tate V. Humphrey 
Tatham t;. Lowber 

V. Wrieht 
Tatlock r. Harris 
Taunton v, Costar 
Tayloe t7. Sandiford 
Taylor, Re, 

V. Atchison 

V. Barnes 

V, Beal 

V. Bradley 

17. Carpenter 

0. Church 

V. Cole 

17. Commonwealth 

c. CoryeD 

V, Cottress 

V. Croker 

9. Draing 

V. Fleet 

17. Gladwin 

17. Glaser 

V. Grodfrey 

r. Gr. Tr. R R. Co. 

17. Hawkins 

V. Hendrie 

17. Hepper 

17. Higgins 

V. Hooman 

17. Horde 

V. Jacques 

V. Jones 

V. Lendev 

V. Lowell 

V, McCune 



141 

684 

Co. 401 

394 

74, 78 

141 

160 

347 a, 385 

440 

264 

627 

118 

441,444 

678 

111 

219 

127 

231, 254 

638 

291a 

672 

296, 611 

31 

418 

500 

694 

518 

618 

257, 258, 530 

138 

172 

264 

281 

616 

253 

254, 418, 421 

273, 628, 634 

592 

81 

302 

164,166 

674 

230 a 

303 

296 

454 

221 

421 

441 

662 

113 

625 

430 

301 

184, 196 

119 

401 

204 



Iin>EZ TO CASES CITED. 



Ixxix 





Beetimi 


Taylor o. Moore 


343 


p. Needham 


305 


0. Raiubow 


85,270 


V. Read 


261a 


V. Robinaon 


462 


v» Sayre 


78 


0. Sham 


239 


V. Smith 


628 


V. Snyder 


180 


V. Taylor 


317, 683 


V. Townsend 


619, 658 


«. Warnaky 


658 


V. Webster 


483 


V. Whitehead 


627 


V, Wilbarn 


688 


V. Willans 


454 


0. Zamira 


566 


Teal 9. Anty 


127 


V. Felton 


640 


Teat's Case 


236 



Tebbetts p. Hamilton Mat. Ins. 

Co. 406 

Teed v. Elworthy 478 

Teese v. Huntingdon 496, 500 

Telfer v. North. R. R. Co. 222 

Teller v. Burtis 430, 557 

Tempany v. Bamand 404 

Temple v. Pomroy 64 a 

V. Seaver 478 

Templeman t;. Case 561 

Templer v. McLachlan 136, 143 

Templeton v. Case 561 

Tenant p. Elliott 637 

Ten £yck p. Waterbury 554 

Tennaot's Case 502 

Tenuery p. Peppinger 222 

Tenney p. Prince XI b 

Terrell p. State 494 

Terry p. Anderson 430 

Terwil linger p. Wauds 420 
Tewksbory Bailiffs p. Bricknell 544, 

568 
Texas & Pacific K R. Co. p. Mur- 
phy 232 a 
Texas Banking, &c. Co. p. Stone 377 
Thames p. Ri^ardson 338 
Tharpe p. Stallwood 339 
Thatcher p. Dinsmore 619, 520 
Thayer p. Boyle 153 
p. Bracket 179, 605 
p. Brooks 474 
p. Buffam 478 
p. Davis 153 
p. Manley 649 
p. Payne 659 a 
p. Providence, &c. Ins. Co. 408 
p. Thayer 47 
Theobald p. Stinson 440 



Beotkn 

Third Kat. Bank of Boston p. Ash- 
worth 190 
Thomas p. Boston & ProY. R. R. 210 
p. De Graffenried 452 
p. Evans 602 
p. Foyle 378 
p. Graves 249, 251, 252 
p. Hawkes 128 
p. Heathorn 28 
p. Marsh 98 
p. Pearse 598 
p. Snyder 614 
p. Thomas 821, 660 
p. Von Kapff 240 
p. Weeks 492 
p. Wright 331 
Thomas's Case 100 
Thomason p. Odum 437 
Thompson p. Bell 431 
p. Bernard 423 
p. Brown 446, 531, 533 
p. Burhans 557 
p. Button 560 
r. Cook 180 6 
p. Gerrish 616 
p. Hale 179 
p. HaU 677 
p. Hopper 400 
p. Kyner 688 
p. Leach 869 
p. Lockwood 302 
p. Manrow 291 a 
p. Miner 659 a 
p. Mitchell 75 
p. Mussey 456, 459 
p. Phelan 533 
p. Powning 417 
p. Rose 644 
p. Ross 573 
p. Svmonds 512 
p. Thompson 689 
Thomson p. Lay 367 
Thorley p. Ld. Kerry 258 
Thorn p. Knapp 273 
Thomdell p. Morrison 462 
Thornep. Rolff 278/ 
p. Smith 518 
p. White 97 
Thornton p. Illingworth 367 
p. Lance 884, 402 
p. Royal Exch. Co. 401 
p. Stephen 423 
p. Suffolk Man. Co. 251 
p. United States Ins. Co. 393 
p. Wynn 136, 190 
Thoniton's Case 688 a 
Thorogood p. Bryan 232 a 
Thorp p. Burling 614 



Ixxx 



INDEX TO CASES CITED. 



Beetion 

Thorpe v. Booth 435 
o. Burgess 604 
V, Comoe 435 
Thresher o. East London Water- 
works 656 
Thrupp V. Fielder 367 
Thunder o. Belcher 826, 820 
Thurber r. Harlem Bridge &c. Ry. 

Co. 232 a 

Thurman v. Wells 212 

V. Wild 30 

Thurston v, Blanchard 642 

V. Hancock 467 

r. McKown 190 

Thurtell v. Beaumont 408 

Tibbatts v. Tibbatts 481 

Tibbets v. Gerrish 867 

Tioe V, Norton 564 

Ticknor v. Harris 360 

Ticonic Bank v, Johnson 19Q 

Tidmarsh v. Washington Ins. Co. 308, 

401 
Tidswell, i2«, 78 
Tier v. Sampson 68 a 
Tiemay t;. Whiting 244 
Tifft V. Culver 263 
Tilden v. Johnson 276 
t;. Metcalf 271 
Tilk f\ Parsons 420 
Tilley v. Damon 302 
TUlier v. Whitehead 481 
Tillotson V. Cheetham 253 
V. Rose 435 
r. Warner 468 
Tilton V. Alcott 81 
Timmings o. Timmings 51, 54 
Timothy v. Simpson 05 
Tingley ©. Cutler 259 
Tinkler v. Walpole 484 
Tippets V, Heane 444 
Tisdale v. Conn. M. L. Ins. Co. 278 d 
V. Essex 243 
Tobey v. Barber 521 
V. Webster 616 
Tobin V. P. S. & P. R. R. Co. 222 
Tod V. Wmchelsea 678 
Todd V. Gallagher 136 
V. Hawkins 421 
V. Old Col. R. R. Co. 222 
V, Reid 251 
V. Rome 662 
Togart V. Hooper 682 
Toledo, P. & W. R. R. Co. v, Par- 
ker 222 a, 261 
Toledo, W. & W. R. R. Co. r. Grush 222 
9. O'Connor 232 a 
Tolland v. Tichenor 26 
Tolles 0. Dunsoombe 613 



Tollett V. Jewett 
Tomlin v, Hilyard 
Tomlinson v. Blacksmith 

V. Collett 

9. Tomlinson 
Tompkins v. Batie 

V. Tompkins 
Toogood 17. Spyring 
Toosey v. WOfiams 
Topham v. Braddick 
ToiTence v. Gibbens 
Toussaint v. Hartop 

V. Martiunant 
Tower i?. Durell 
Towers v. Barrett 
Towne v, Jaquith 

v. Nashua, &c, R. R Co. 

v. Wason 

r. Wiley 
Townes v. Mead 
Townsend v, Crowdy 

V. Deacon 

V, Downer 

0. Ives 

V. Kerns 

r. N. Y. C. R. R. Co. 

9. Phillips 
Townsend Sav. Bk. v. Todd 
Townsley v. Sumrall 
Towson V. Havre De Grace Bk. 
Tracy v. Herrick 

o. Strong 

V. Swartwout 

V. Wikoff 
Trafton v. Hawes 
Treadwell v, Bladen 
Treanor v. Donahoe 
Treasurers v. McDowell 
Treat v. Barber 

V. McMahon 



424 
616 
11 tf 
488 
684 
605 
672 

418, 421 

103 

435 

671 

79 

108, 114 
100 



103 
74 
280 
168 
368 
437 
123 
437 
307 
694 
618 
222 
694 
331 
183 
601 
78 
607 
258 
630 
241 
603, 604, 508 
255 
141 
258 
11a 



Trecothick v. Edwin 180 a 

Trelawney v. Coleman 56 

Trenton, &c. Ins. Co. v. Johnson 409 



Treveljan v, Trevelyan 
Trevilian v. Pine 
Trevivan o. Lawrance 
Triggs V. Newnham 
Trimble v. Thorn 

V. Trimble 
Trimmer v. Jackson 
Trimyer v. Pollard 
Tripp V. Thomas ' 
Trott 0. City Ins. Co. 

». Wood 
Troup V. Smith 
Trowbridge v. Chapin 

o. Scudder 
Trower v, Chadwick 



681 
667 
281 
178 
196 
462 
676 
440 
456 
69 
251 
448 
212 
481 
466 



INDEX TO CASES CITED. 



Ixxxi 



Troy V. Ch. Railroad Co. 
Troy Tump. Co. v. M'Chesney 



474 
62 

188, 525 
222a 

461,464 
115 

128,445 
597 
240 
533 

461 
689 
533 



True p. CoUins 
V. Int. Tel. Co. 
V. Rann^ 

Trueman v. Fenton 
v. Hurst 

Tniitt V. Revill 

Trull V. Eastman 

Tmllinger v. Kofoed 

Truman's Case 

Trumbull v. Gibbons 

Truscott 0. Ring 

Trustees, &c. of North Greig v. 
Johnson 818 

TiTon 9. Carter 290 

Tubbs 9. Richardson 646 

0. Tukey 615 

Tuberrille v. Savage 82, 83 

V. Whitehouse 365 

Tucker p. Barrow 126 

V. Call 426 

V. Cracklin 209, 213 

V. Haughton 440 

V. Ives 445 

V. Moreland 367, 369 

V. Smith 200 

V, Wilamonicz 207 

Tuckerman o. Sleeper 518 

Tu£E V, Warman 222 

Tufts V. Adams 242, 244 

p. Charlestown 657, 662 

Tuggle V, St. Louis, &c. R. R. Co. 209 



Tuffwell V. Heyman 
TuUay v. Reed 
Tullidge V. Wade 
Tullock V. Dunn 
Tunno, Re 
Tapper p. Cadwell 
Turner p. Ambler 

.p. Child 

p. £yles 

p. Eiayden 

p. Hitchcock 

p. Meymott 

p. Myers 

p. O'Brien 

p. Protect. Ins. Co. 

p. Turner 

p. Wilson 

p. Winter 

p. Yates 
Tomey p. Paw 

p. Tumey 

p. Wilson 
Tumipseed p. Hawkins 
Turrill p. Dolloway 
Turton p. Turton 

VOL. IL 



108 

98 

89, 253, 579 

352 

73 

865 

454,455 

343 

239 

180 a 

228 

618 

464 

452 

403 

45, 449, 453 

219, 377 

490 

251 

279 

46 

209 

694 

425 

43, 52, 53, 54 



Turvil p. Tipper 
Tuson p. £vans 
Tuthill p. Davis 
Tuttle p. Brown 

p. Chicago, &c. R. R. 

p. Cooper 

p. Mavo 
Tweed p. Libbey 
Twemlow p. Oswin 
Twitchell p. Shaw 
Twombly p. Henley 

p. HunneweU 
Tybout p. Thompson 
Tye p. Gwynne 
Tyler p. Binney 

p. Duke of Leeds 

p. Freeman 

p. Pomeroy 

p. Smith 

p. West Un. Tel. Co. 

p. Wilkinson 

p. Young 
Tyndal p. Hutchinson 
Tyng p. Conn. Warehouse 
Tyson p. Booth 

p. Shueey 



IT. 



593 

411 

207 

262 

Co. 230 

484 

104, 118 

18 

386 

584,629 

241 

588 

123 

136 

166 

593 

561 

267 

619 

222 a, 261 

539 

175 

280 

Co. 649 

635 a 

618, 618 a 



Uhde p. Walters 377 

Ulery p. Jones 620 

Ulmer p. Leiand 454, 457 

Ulster Co. Bank p. McFarlan 161 

Umphelbv p. McLean 434 

Underbill p. Agawani, &c. Ins. Co. 406 

Underwood p. Carney 659 a 

p. Hewson 85, 270 

p. Kichols 518 

p. Parks 274, 425, 426 

Union Bank p. Geary 141 

p. Knapp 445 

p. Magruder 190 

p. Ridgely 297, 300 

p. Stone 183 

p. WiUis 163 

Union Central L. Ins. Co. p. 

Cheever 409 

Union Mat. Ins. Co. p. Campbell 297 

p. Mut. Mar. Ins. Co. 377 

p. Wilkinson 64 a, 406, 409 

Union Trust Co. p. White 112 

United States p. Appleton 659 a 

p. Bradbury 529 

p. Coffin 296 

p. Drew 374 

p. Hoar 848, 851 

p. Hnckabee 301 



Ixzxii 



INDEX TO CASES CnXD. 



Seetkni 

United States t?. Kirkpatrick 683 

V. M'Daniel 251 

t;. M'Glue 373 

V. Ortega 84 

V. Sholtz 373 

V. Thompeon 430 

V. Wardwell 629, 533 

V. WorraU 286 

UDited States Bank r. Binney 481 

17. Carneal 188 

r. Lyman 118 

United States Tel. Co. v. Wenger 261 

Unwin v. Heath 606 

Updike V, Henry 561 

Upham V. Lefavonr 531, 631 a, 632, 

533 
Upston V. Slark 211 

Upton V. Cnrtis 570 

V. Suffolk Co. Mills 64 a 

Urban v. Grimes 367 

Usticke 0. Bawden 682, 683 

Uther V. Rich 172, 639 

Utterson v. Vernon 837 

Utterton v. Utterton 681 



V. 



Vail 0. Rice 252 

Valentine v. Boston 662 

Vallejo V. Wheeler 390 

Valpey v, Manley 121 

Van Alen r. Rogers 333, 337 

Vanatta v. Jones 662 

Van Boskirk v. Claw 464 

V. Roberts 210 

Vance v, Campbell 499 

r. Foster 407 

v. Throckmorton 219 

r. Vance 45 

Van Cortlandt v. Underbill 73, 78 

Vander Donckt v. Thellusson 180 

Vanderplank v. Miller 473 

Vandewall v, Tyrrell 114 

Van De Weile v. Callanan 454 

Van Dorens v, Everett 367 

Van Duzer v, Howe 172 

Van Epps v. Harrison 136 

r. VanEpps 41 

Van Horn v. Freeman 226, 576 

Van Home v. Crain 240 

Van Keuren r. Parmelee 441 

Van Kirk v. Penn. R. R. Co. 222 

Van Ostrand v. Reed 113 

Van Rensselaer v. Flatner 260 

V, Roberts 531 

V. Secor 297 

Vansandau v, Browne 142 



Van Santen v. Standard Oil Co. 
Van Santvoort v. St. John 
Van Schaack v. Stafford 
Vansteenburg o. Hoffman 
Vansyckle o. Richardson 
Van Valkenburgh v. Rouk 
Van Valkingbnrgh v. Watson 
Van Vechten v, Hopkins 
Van Wvck r. Allen 



wycjt 

V, Aspinwall 
Vamey v. Grows 
Vamum r. Bellamy 

V. Meserve 
VarriU v. Heald 
Vasse V. Smith 
Vassor v. Camp 
Vaughan v. Blanchard 

V, Thompson 
Vaughton v, Lon. & N. W. Ry. 

Co. 219, 408 

Vautrain v. St. Louis, &o. R. R. 



wttlciu 
121 

210 
204 
520 
358 
800 
108 
417 
262 
421 
437 
141 
119 
278 
368 
481 
280 
279 



232 6 
606 
28 a 
454 
204 
440 
630 
169 
172 
216 
844,346 
271 



164, 



Co. 
Veazy v. Harmony 
Vedder v. Vedder 
Venef ra v, Johnson 
Venning v, Shuttleworth 
Ventris v. Shaw 
Vere r. Cawdor 

V. Lewis 
Vermilye r. Adams Exp. Co. 
Verner r. Swritzer 
Vernon r. Curtis 

V. Keys 

V. Smith 240 

Verplankv. Sterry 297 

Verrall v, Robinson 646 

Verry v. Watkins 677 

Vessey v. Pike 425 

Viall V. Smith 161 

Vianna o. Barclay 67 

Vibbard v, Johnson 136 

Vick V. Whitfield 424 

Vickars v. Wiloocks 256 

Victors V. Davis 107 

Viens V, Brickie 445 

Villepigue r. Shular 573 
Vincent v. Cornell 642, 644 

V, Groome 142 

V. Stinehour 94 

Viner v. Vaughan 656 

Vines v. SereU 420 

Visger o. Presoott 888 

Vivyan ». Arthur 240 

Volkening v. De Graaf 126 

Von Hemert v. Porter 487 

Vooght p. Winch 665 
Vose V. Eagle Life, &c. Ins. Co. 400 

V. Handy 880 



INDEX TO CASB3 CITBD. 



Izxxiii 



Vo88 V. Robinson 
Vowlea V. Miller 
Voyoe V. Voyoe 
Vynior'8 Case 



W. 

WaddeU r. Cook 
Wade p. Hayoook 
9. Howard 
V, Leroy 
v. Merwin 
o. Thayer 
V, Tliompson 
9. Walden 
9. Wilson 
Wade's Case 
Wadhurst v. Damme 
Wadsworth «. Allcott 
9. Manninff 

9. Marsbali 

9. Raggles 
Wafer v. Mocato 
Waffle 9. Short 
Wagner 9. Peterson 
WaSing 9. Toll 
Wainman v, Kynman 
Wainwright's Appeal 
Wait 9. Chandler 

9. MaxweU 

9. Pomeroy 
Waite 9. Barry 

9. Gale 

9. Gilbert 
Waithman 9. Weaver 
Wakefield v. Llanelly Ry. 

9. Newbon 
Wakeman v. Robinson 
Wakley 9. Johnson 
Waland 9. Elkins 
Walbridge 9. Arnold 

9. Shaw 
Walcot 9. Pomeroy 
Walden v. Davison 

9. New York Ins. Co. 
Waldron 9. Coombe 

9. McCarty 
Wales 9. Jones 
Walford 9. Anthony 
Walker v. Boston & M. R. 

9. Davis 

9. Ebert 

9. Gerhard 

9. Goodrich 

9. Ham 

9. Holiday 

9. Hunter 



0060011 




SMtloil 


804 


Walker 9. Mutland 


387 


617 


9. Melcher 


74 


626 


9. Seaborne 


80 


79 


9. Smith 


253 




9. Walker 


190, 684 




9. Wright 


528 




Wall 9. East River Ins. Co 


261 




V, Hinds 


656 


646 


Wallace 9. Hardacre 


88 


261 


9. KelsaU 


80,480 


830 


9. King 

9. McUonnell 


648 


267 


174, 180 b 


236 


Wallard v. Worthman 


621 


89 


Wallerstein v. Columbian Ins. Co. 892 


807 


Walley 9. WaUey 


448 


458 


Wallis 9. Alpine 


4.55 


112 


9. Mease 


418 


602,604 


9. New Orleans, &c. R. 


R. Co. 421 


680 


Walls 9. Bailey 


251 


251 


Walmsley 9. Robinson 


464 


481 


Walsh 9. Bishop 


277 


142 


Walter 9. Green 


55 


690 


9. Haynes 


525 


259 


9. Sample 


459 


444 


9. Self e 


467 


108 


Walters 9. Brown 


188' 


135, 366 


9. Mace 


414 


444 


9. Pfeil 


. 473 


688 


Waltman 9. Allison 


566 


172 


Walton 9. Eersop 


562 


241, 555 


9. Mascall 


186 a 


172 


9. Potter 490, 


501 a, 506 


78 


9. Robinson 


441 


848,344 


9. Walton 


686, 687 


261 


Walwyn 9. St. Quintin 


165, 202 


424 


Wankford 9. Wankford 


339 


&c. Co. 78 


Wanstall 9. Pooley 


232 a 


121 


Warburton v, Storer 


79 


85, 94, 270 


Ward 9. Ames 


'261a 


275 


9. Andrews 


280 


214 


9. Dick 


414, 418 


801 


9. Dulaney 


461 


560 


9. Evans 


66 


614 


9. Fuller 


554, 555 


580 


9. Harrison 


317 


897 


9. Lee 


189 


885 


9. Lewis 


297 


243 


9. Macauley . 


616 


26 


9. Pearson 


lid 


625 


9. Roy 


141 


R. 282 6 


9. Smith 


421 


868 


9. Weeks 


414 


172 


Warden, In re 


676 


659 a 


Warder 9. Tucker 


190 


140 


Ware 9. Gay 


221,222 


111, 121 


9. Lithgow 


248 


86 


9. Ware 


690 


688 


9. Weathnall 


264 



Ixxxiy 





Seetkm 


Warfield r. Walter 


635 a 


Waring ». Waring 


371 a 


Warmoll v. Young 


593 


Warue t;. Chadwell 


418 


Warner v. Beach 


684 


r. Thurlo 


263 


V. Warner 


53 


V. Wheeler 


124 


Warr v. Jolly 


421 


Warrall v. Claie 


633, 634 


Warren v. Allnut 


180 6 


v. Austin 


253 


p. Baxter 


691 


9. Blake 


659 a 


V, Child 


557 


V. Cochran 


614 


V. Fitchburg R. R. Co. 


221 


V. Iceland 


561 


V. Lynch 


296 


17. Mains 


601 


V. Men-y 


207 


p. Postlethwaite 


675 


V. Wade 


299 


V, Walker 


440 


». Warren 


183, 416 


Wai-ren Bank ». Parker 


178 


V. Suffolk Bank 


251 


Warwick v. Foulkes 


272 


». Wah Lee 


466 


Warwicke v. Noakes 


525 


Washburn ». Splater 


172 


Washburn & Moen Manul Co. v. 


Haish 


491 


Washer v. White 


190 


Washington & G. R. R. Co. v. 


Gladmon 


222 


Washington Bank v. Brown 


556 


Washington Ins. Co. ». Wilson 408, 426 


Waterbury v. Westervelt 


580 


Waterman r. Barratt 


302 


V. Robinson 


561 


Waters v, Jones 


424 


V, Lilley 


625 


r. Merchants' Ins. Co. 


405 


0. Monarch, &c. Ins. Co 


405 


V, Paynter 


163 


V. Thanet 


440 


V. Tomkins 


5:i0 


V, Towers 


2G1 


Watertown v. Cowen 


240 


Watervliet Bank v. White 


166 


Watkins v. Atlantic Av. Ry. 


Co. 230 


0. Baird 


121, 302 


9. Hill 


519, 520 


0. Jyee 


452 


V. Morgan 


lie 


V, Vince 


65 


V. Wool lev 


644 



A8RH ClTiSD. 


Beotlon 


Watkinson v. Inglesby 


28 


Watson V. Ambergate, &c. 


By. 


Co. 


210, 256 


9. Bayless 


579 


9. Brainard 


135 


V. Brennan 


592 


0. Christie 93, 97, 274 


V. Clark 


400,401 


V, King 


338, 884 


V. Moore 


420, 424 


v. North Amer. Ins. Co. 


401 


V. Pears 


488 


V. Poulson 


230 a 


V. Reynolds 


428 


V. Russell 


117 


V. Ryan 


297 


V. Sherman 


61 


V. Smith 


487 


V, Todd 


580 


V. Turner 


107, 114 


p. Whitmore 


454 


Watt V. Greenlee 


457 


p. Hoch 


532 


Watts V. Baker 


607 


V. Fraser 


275 


V. Public Adm*r 


674 


V. Wehnan 


242 


r. Willing 


523 


Waugh V. Bussell 


13 


Way V. Rassett 


179 


t^. Batchelder 


160 


V. Foster 


111 


V. Richardson 


163 


V, Sperry 


440 


Way nam v. Bend 


163 


Wayne v. Sands 


302 


Weatherford v. Weatherford 


464 


Weatherstoue v. Hawkins 


419 


Weaver v. Bachert 


256 


p. Bush 


98 


p. Leiman 


437 


V, Lloyd 


423 


p. Ward 


85,270 


Webb, Re 


209 


p. Alexander 


243 


p. Fox 


637 


p. Heme 


5&i 


p. HiU 


11 


p. Paternoster 


475 


V. Powers 


514 


t^. Thompson 


884 


p. Turner 


624 


Webb's Case 


210 


Webber p. Liversuch 


96 


p. Nicholas 


456 


p. Richards 


625 


p. Tivill 


447 


p. Webber 


857 



INDEX TO CASES CITED. 



Ixxxv 



Seotion 

Webster v. Drinkwater 108 

9. Lee 74, 109 

Weed V. Baniey 221 

V. Mut. Ben. Ins. Co. 409 

17. Saratoga & 8. R. R. 210, 221 

Weedon v. Tinibrell 51 

Weeks r. Gibbs 345, 347 

Weems r. Farmers* Bank 177 

Wehle V. Haveland 276 

Weidner v, Schweigart 627 

Weigall V. Waters 245 a 

Weigel r. Weigel 676 

Weil V. Lange 153 a 

Weinberger v. Slielly 452 

Weir V. Aberdeen 400 

Weise v. Smith 627 

Welch V. Duraiid 224, 225 

o. Goodwin 122 

V, More 269 

V. Seaborn 112 

V, Ware 253 

Welcome r. Upton 544 

Weld V. Bartlett 599 

V, Chadbourne 585 

V. Oliver 646 

Weleker i;. Le Pelletier 21, 27 

Welford v, Liddel 447 

Wellcome v. People's, &c. Ins. Co. 406 

Weller v. Baker 227 

M'elles V. Fish 448 

Wellingfton ». Wentworth 644 

Wells p. Cooke 73 

V. Head 272 

V. Hopwood 391 

V. N. Y. C. R. B. Co. 215, 222 

V. Ody 226, 471, 472 

V, Prince 554 

V. Some 36 

V. William 19 

Welsh V. Sage 642 

Welstead u. Xevy 200 

Weudover v. Ilogeboom 378 

Wennall ». Adney 114 

Wentworth v. Blancbard 616 

V. Bullen 449 

©. Wentworth 30 

Weriheimer v. Penn. R. R. Co. 219 

West v. Chamberlin 524 

V. Forrest 267 

V. Hughes 333 

V. Rice 433 

9. Strause 572 

Westchester, &c. R. R. Co. v. 

Jackson 118 
Westchester F. Ins. Co. v. Earle 377 

Westcott V, Fargo 215, 218 

Western Ins. Co. v. Tobin 387 

West. Un. Tel Co. v. Carew 211, 222 a 



Section 

West. Un. Tel. Co. v. Graham 222 a 

V. Meeks 222 a 
Westfall V. Hudson River, &c. 

Ins. Co. 408 

Westmeath v. Westmeath 54 

Weston V. Alden 467 

p. Barker 109 

V, Carter 562 

V. Downes 103 

V. Foster 29 

V, Gravlin 635 a 

17. Reading 557 

Wetherbee i;. Slarsh 424 

Wetzell V. Bussard 440, 443 

Whalden v. Chappel 111 

Whalley v. Pepper 451, 454 

Wharton i7. Mackenzie 365 

Wheatfield v. Brush Valley 123 

Wheaton v. East 241 

». Hibbard 121 

V. Peters 510, 511 

V. Wilmarth 189 

Wheeler p. Alderson 676 

r. Factors, &c. Ins. Co. 405 

V. Field 180, 195 

V. Hatch 241 

V. Home 37 

p. Nesbit 453 

V, Nevins . 61 

p. Rice 478 

p. Rowell 618 a 

p. Train 561, 640 

V. Washburn 202 

Wheeling v. Campbell 430 

Wheelock p. Doolittle 441 

V. Pierce 347 

p. Wlieelwriffht 642 

Wheelwright p. Depeyster 649 

p. Freeman 556 

p. Wheelwright 297 

Whelen v. Watmaugh 37, 38 

Whelpdale's Case 300 

Whipple p. FuUet 456 

p. Walpole 253 

Whitaker p. Houghton 644 

p. Sumner 316 

Whitbeck p. Cook 11 a 

p. Holland 221 

p. Van Ness 523 

White V. Bailey 437, 439 

p. British Museum 675 

p. Buss llo 

p. Carr 459 

p. Carroll 421 

p. Crawford 659 a, 605 

p. Demary 644 

p. Dingley 259 

p. Edgman 64 



Izxxvi 



INDEX TO GASES CITED. 



White V. Franklin Bank 

V. Gray 

p. Hague 

V. Eibling 

17. Livingston 

V. Mann 

V. Miller 

V. Mosely 

V. Murtland 

V, Nellis 

t;. Oliver 

v. Osbom 

V. Pickering 

V. Prigmore 

0. Reagan 

V. Sayward 

V. Tompkins 

V. Whitman 

V. Whitney 

V, Wilson 

V. Winnissimmet Go. 
White's Estate 
Whitehall v. Sqnire 
Whitehead o. Howard 

r. Lord 

V. Taylor 

V. Tucket 

V. Varnum 
Whitehouse v. Atkinson 
Whiteman v. Slack 
Whitesell v. Crane 
Whiteside v. Jackson 

17. Russell 
Whiteside's Appeal 
Whitfield 17. Memphis & G. R. 

17. Savage 
Whithead v. Keyes 
Whiting 17. Aldrich 

17. Smith 

r. Sullivan 
Whitmore v. Black 

17. Wilks 
WhitnOT V. Bigelow 

V. Claren£>n • 

t7. Dutch 

17. Ferris 

17. Hitchcock 

V. Lewis 

t7. Morrow 

t;. Peckham 

v. Sterling 
Whittaker t7. Edmunds 

17. Groover 
Whittemore v. Gutter 253 

Whittier t7. Graffham 
Whittlesey v. Ames 
Whitwell 0. Bennett 



BeetloD 

111, 121 

81 

232 a 

207 

616 

278/, 343 

261 

272 

672, 579 

677 a 

104 

647 

817 

601 

433 

417 

261 

26 

244 

689, 690 

220, 473 

666 

649 

126, 443 

142 

567 

65 

599 

649 

236 

216 

305 

219 

278 f 

R. Co. 267 

195 

585, 591 

113, 114 

414 

108 

649 

473 

441,444 

268 & 

367 

484 

253 

136 

654 

457 

483, 484 

172 

530 

, 254, 496, 

504 

195 

492 

118 





Seetkm 


Whitwell V. Johnson 


187,194 


17. Kennedy 


265 


17. Wells 


561 


Whitwill V. Scheer 


Ud 


Whorewood o. Shaw 


109 


Wicker v. Hotchkiss 


459 


Wickham r. Freeman 


614 


Wicks V. Feutham 


452 


Widdifield v, Widdifield 


483 


Widger v. Browning 


824 


Wigan V, Rowland 


691 


Wiggin 17. Amory 


390 


Wigglesworth o. Dalllson 


251 


17. Steers 


800 


Wightman i7. Wightman 


464 


Wiffmore ». Jay 
Wihen t7. Law 


232 b 
863 


Wikoff's Appeal 


674 


Wilbaume i7. Gorges 


291 


Wilbeam v. Ashton 


258 


Wilbour V. Turner 


168, 199 


Wilbraham v. Snow 


614, 637 


Wilbur 17. Bowditch, &c. Infl 


1. Co. 406 


17. Jemegan 


520 


v. Sproat 


121 


Wilby 17. Hen man 


431 


Wilcox p. Fairhaven Bank 


681 a 


17. Howland 


302 


V. Hunt 


669, 672 


17. McNutt 


188 


t7. Plummer 


146, 268 a 


WUd 17. Pickford 


218 


Wilde 17. Clarkson 


263 


17. Fisher 


112 


17. Waters 


644 


Wilder v. Bailey 


587 


V. Holden 


597 


Wilderman v. Sandusky 


624 


Wiley t7. Keokuk 


253 


Wilhelm t7. Schmidt 


620 


Wilkins v. Aiken 


614 


t7. Gilmore 


272 


17. Jadis 


178 


Wilkinson t7. Byers 
V. Haygarth 


28 


615 


17. Howell 


452 


17. Jadis 


196 


17. Johnson 


122 


17. King 


688,640 


17. Lutwidge 


164 


17. Stewart 


560 


WUlard i7. KimbaU 


560 


17. Twitchell 


241 


Willaume v. Gorges 


291 


Willbeam t». Ashton 


258 


WiUett 17. Willett 


108 


William Butcher Steel Works v. 


Atkinson 


868 



INDEX TO CASES CITED. 



Ixxxvii 



Williams, Re 

V. Adams 

V. Annapolis 

V. Atchison, Ac. R. 

p. Babbitt 

V. Bosanquet 

t. Branson 

V. Bridges 

17. Barrel! 

r. Byrne 

©. Cheney 

V. Clough 

p. Cranston 

p. Crary 

V. Cummington 

p. Currie 

p. Erving 

p. Evei-ett 

p. Grant 

p. Gridley 

r. Griffith 

p. Hartford Ins. Co. 

p. Holland 

p. HoQffhtaling 

p. IngeTl 

p. Innes 

p. James 

r. Jones 

V. Lee 

p. Matthews 

r. Mitchell 

r. Moor 

p. Morris 

p. Mostyn 

r. Murphy 

p. Niagara Fire Ins. 

r. Paschall 

V. Putnam 

p. Reed 

p. Roberts 

p. Sills 

p. Taylor 

9. Vance 

p. Weatherby 

p. Welch 

p. Williams 41, 

p. Woodward 
Williamson r. Burnett 

it, Carskadden 
Willis r. Barrett 

V. Bernard 

p. Dyson 

9. Kewham 

p. Watson 
Williston p. Mich. S. & 
R. Co. 

p. Smith 
Willoughby p. Hbnidge 



R. Co. 



Section 

224 
805 
230 
697 
239 
219 
584 
240 

261a 
162, 377 

232 b 
212 
524 
662 
253 
351 
119 

219, 877 
440 
535 

406, 407 

220, 926 
520 
303 
847 

544, 659 

9d 

11a 

197 

68 

867 

627 

584, 599 

831 



Co. 



406 
78 
183 
145 
431 
234 
454 
257 
244 
562 
44, 45, 49, 54 
239 
261 
297 
160 
55 
485 
440 
686 
N. I. R. 

118 
424 
220 



Willy V. Mullady 


230 


Wilmett p. Uarmer 


426 


Wilmot V, Smith 


606 


Wilsford p. Wood 


478 


Wilson r. Appleton 


437 


p. Beddard 


674 


p. Cobb 


481 


V. Coffin 


141 


p. Concord R. R. Co. 


78 


p. Coiipland 


112 


p. Edmonds 


68 a 


p. Forbes 241, 284 


V. Force 


523 


V. Freeman 


218 


p. Fuller 


230 a 


V. Hirst 


533 


p. Hodges 


110 


p. Jennings 


141 


p. Kennedy 


520 


p King 


11a 


p. Mackreth 


614 


p. Martin 


261 


p. McEwan 


296 


p. Merry 
p. Mitcnell 


232 6 


131 


p. New Bedford 


467 


p. Noouan 


418 


V, Norman 


587 


p. Northern &c. R. R. Co. 


221 


p. Ray 


121 


p. Reed 


616 


p. Robinson 


421 


p. Shearer 


641 


p. Stolly 


491 


p. Tucker 


149 


p. Tiiramon 


66,68 


V, Vysar 


520 


p. Wadleigh 


141 


p. Wallace 


11a 


p. AVilson 


8:)8 


V. Woolfryes 


246 


p. Young 


63oa 


Wilson Packing Co. p. Chics^ &c. 


Packing Co. 


494 


Wilt p. Ogdeu 


135 


p. Vickers 


268 a 


Wilton p. Girdlestone 


611 


p. Webster 51, 


55,57 


Wiltshire p. Sidford 


617 


Wimbledon Commons p. Dixon 


544 


Winans p. Denmead 


489 


p. New York & Erie R. R. 


498 


WinchelL p. Bowman 441, 444 


Winchelsea p. Wauchope 


678 


Winchel»ea Causes 


471 


Winchester p. Foster 


686 


Windham Bank p. Norton 


188 


Windsor p. Kennedy 


533 



Izxxviii 



INDEX TO CASES CITED. 



Hsotioii 

WiDg V. Mill 107, 114 

V. Wing 414 

Wingfield v. Stratford 648 

Winship v. United States Bank 481 
Winslow V, Lane 201 

V. Leonard 561 

V. Merrill 11a 

V. Vt. & Mass. R. R. Co. 210 

Winsmore v, Greenbank 55 

Winsor v, Pratt 674, 681 

Winter v. Brockwell 475 

V. Charter 472 

V. Henn 51 

V. Trimmer 257 

V. Wroot 56 

Winterbottom o. Morehouse 644 

V. Wright 232 a, 282 b 

Wioihrop v. Union Ins. Co. 251, 262 
Wintringham v. Lafoy 621 

Wire Book S. M. Co. v. Stevenson 487 
Wiseman v. Chiappella 180 

V. Lyman 523 

Wissler v. Hershey 658 

Witchcot 0. Nine 243 

Witham v. Gowen 457 

Withy V. Mumford 240 

Wittersheim o. Countess of Car- 
lisle 435 
Wittkowski v. Reid 831 a 
Wittman r. Watry 839 
Witty V. Hightower 244 
Witzler v. Collins 209 
Woert 17. Jenkins 253, 272 
Wolcott V. Hall 275, 424 
V. Knight 556 
V, Mount 268 a 
V, Van Santvoord 180 6 
Wolf V. West. Un. Tel. Co. 211, 222 a 
Wolfe V. Dowell 307 
Wolmer v. Latimer 424 
Wolstenholm v, Davies 65 
Womack v. Circle 455 
Wonder v. B. & O. R. R. Co. 232 b 
Wood V. Aubmn & Roch. R. R, Co. 61 
V. Buckley 449 
V. Cleveland Rolling Mill Co. 500 
r. Day 306 
V. Decoster 291 a 
V. Edwards 103 
.0. Fireman's, &c. Ins. Co. 406 
V. Hickok 252 
r. Hitchcock 605 
V. Hopkins 141 
V, Humphrey 69 
V. Lake 26 
V. Manley 627 
V. Myttoa 160 
v. Pope 245 a 





Bootkni 


Woodo. Roe 


73 


V. State 


571 


V. United States 


454 


». Veal 


545, 663 


Woodbridge v, Brigham 
Woodbury v. Frinf 


179 


213 


V. Northy 


78 



Woodbury Savings Bank v. Chaiv 

ter Oak Ins. Co. 405 

Woodcock V. Houldsworth 187, 193 

r. Parker 492, 502 

Woodfin V, Anderson 857 

Woodfolk V. Macon &c. R. R. Co. 230 

Woodhull 9. Holmes 206 

Woodman v, Coolbroth 297 

p. Gist 580, 591 

V. Hubbard 111, 642 

V. Smith 556 

Woodrow V. O'Connor 78 

Woodruff V. Adams 636 

V. Houghton 431, 432 

V. Ridley 160 

v. Russell 638 

Woodside v. Adams 642 

V. Howard 618 

Woodward v. Booth 209 

V. Giles 259 

V. Larkin 378 

V. Newhall 24, 133 

V. Thacher 262 

v. Walton 88, 225, 273 

V. Ware 431 

Woodworth o. Bennett 637 

V. Sherman 492 

Woodyer v. Hadden 662 

Wookey v, Pole 639 

Wooldridge v. Boydell 382 

V. Grand St., &c. Ry. Co. 230 

Woolen Mills Co. v. Titus 104 

WooUey v. Carter 635 a 

V. Clark 339, 641 

Worcester r. Eaton 111, 121 

Worcester Bank v, Hartford, &c. 

Ins. Co. 406 
Worcester County Bank v, D. & M. 

Bank 172 

Wordsworth v, Harley 484 

Works V. Atkinson 368 

Wormouth v, Cramer 11 d 

Worsley v. Wood 406 

Worthington w. Barlow 847 

V. Bearse 405 

Worthley v. Emerson 533 

Wren v. Heslop 454 

Wright, Re 150 

v. Andrews 190 

V, Barnard 401 

p. Behrens 607 



INDEX TO 'CASES CITED. 



Izxxix 



Seetloii 

Wright r. Boston 121 

V. Butler 135 

V. CaldweU 212 

V. Castle 139 

r. Hicks 151 

r. Laing 633 

V. Lainson 693 

r. LoD. & N. W. By. Co. 222 

». Lord Vemey 115 

o. Morris 104 

V. Netherwood 085 

0. Ramsoott 030 

o. Rattray 659 

V. Reed 601 

0. Remiogton 301 

v. Russell 478 

V. Tukey 662 

17. Woodbkte 421 

V. Wright 675 

Wurt V, Lee 518 

Wustland v. Potterfield 618 

Wyatt r. Gore 424 

V. Harrison 467 

Wyche v. East India Co. 435 

Wyer v. Dorchester & M. Bank 172 

AVyeth o. Stone 489, 491, 504, 506, 507 

Wyman p. American Powder Co. 261 



V, Ballard 

V, Gould 

V. Hal. & Augusta Bank 

V. Hook 

V, Leavitt 

o. State 
Wyndham v. Wycombe 
Wynn o. Allard 

V. Heveningham 
Wynne v. Anderson 
Wythe V. Smith 



T. 

Yale p. Saunders 
Yarborough v. Ward 
Yamold v. Wallis 
Yate V. Willan 
Yates V. Freckleton 

V. Thompson 
Yea v. Fouraker 

p. Lethridse 
Yeager v. Wal&ce 
Yeatman p. Erwin 
Yeomans p. Bradshaw 



242 
371 

68 
108 
267 
662 

52 
253 
681 
624 
831 



649 
838 
686 
209 
618 
669 
441 
686 
641 
187 
838 







BeetSon 


Yerbyp. Yerby 




684 


Yerkes p. Keokuk Packet Co. 


222, 230 


Yocum p. Smith 




172 


York p. Blott 




161, 204 


p. Pease 




418, 421 


York Co. p. Central Raihx)ad 


215 


Youl p. Harbottle 




642 


Youndt p. Youndt 




688 a 


Young p. Adams 


112, 


124, 522 


p. Black 




135 


p. Bryan 




183 


p. Coyell 




271 


p. Drew 




317 


p. Englehard 




255 


p. Garland 




662 


p. Gregory 




450 


p. Grote 




122 


p. Hichens 




620 


p. Hosmer 




586,599 


p. Hunter 




483 


p. Jones 




31 


p. Kenyon 




431 


p. Marshall 




120 


p. Mason 




642 


p. Miller 




73 


p. Pacific Mar. Ins. 


Co. 


392 


p. Patterson 




164 


p. Porter 




831 


p. Preston 




103 


p. Shinn 




308 


p. Steams 




297 


p. Tustin 




268 a 


p. Weston 




435 


Youngs p. Lee 




189 


Yrisarri p. Clement 




412, 417 



z. 

Zachary p. Pace 
Zadiere's Succession 
Zeig p. Ort 
Zeigler p. Day 

p. Gray 

p. Zeigler 
Zenobio p. Aztell 
Zent p. Hart 
Zerrano p. Wilson 
Zimmerman p. Hannibal, 

p. Rote 

p. Zimmerman 
Zooch p. Willingale 



644,645 

430 

414 

232 6 

207 

78 

11 d, 414 

444 

520 

&c. R. R. 230 

172 

688,689 a 

821, 827 



PART IV. 

OF THE EVIDENCE REQUISITE IN CERTAIN PARTICU- 
LAR ACTIONS AND ISSUES AT COMMON LAW. 



VOL. n. 



A 



TREATISE 



ON 



THE LAW OF EVIDENCK 



PART IV. 



OF THE EVIDENCE REQUISITE IN CERTAIN PARTICULAR 
ACTIONS AND ISSUES AT COMMON LAW. 



PRELIMINARY OBSERVATIONS. 

§ 1. Recapitulatiozi. Having, in the preceding volume, treated, 
fir%t^ Of the Nature and Principles of Evidence ; secondlt/^ Of the 
Object of Evidence, and the Rules which govern in the Production 
of Testimony ; and, thirdly^ Of the Means of Proof, or the Instru- 
ments by which Facts are established, — it is now proposed to 
consider, fourthly^ The Evidence requisite in certain Particular 
Actions and Issues at Common Law, with reference both to the 
nature of the suit or of the issue, and to the legal or official char- 
acter and relations of the parties. 

§ 2. Sninmary of topics treated. We have already seen that the 
evidence must correspond with the allegations, and be confined to 
the point in issue ; ^ that the substance of the issue, and that only, 
must be proved ; ^ that the burden of proof generally lies on the 
party holding the affirmative of the issue ; * and that the best evi- 
dence of which the nature of the case is susceptible, must be 
adduced.^ These doctrines, therefore, will not be again discussed 
in this place. 

§ 3. The iBsae. The first thing which will receive attention, in 
the preparation of a cause for trial, will naturally be the issue or 

> VoL i. pt 2, c 1. « Vol. L pt. 2, c. 2. 

• VoL L pt 2, c 8. * Vol. L pt. 2, c. 4. 



4 LAW OF EVIDENCB. [PABT IV. 

proposition to be maintained or controverted. In the early age of 
the common law the pleadings were altercations in open court, in 
presence of the judges, whose province it was to superintend or 
moderate the oral contention thus conducted before them. In 
doing this, their general aim was to compel the pleaders so to 
manage their alternate allegations as at length to arrive at some 
specific point or matter, affirmed on one side, and denied on the 
other. If this point was matter of fact, the parties then, by 
mutual agreement, referred it to one of the various methods of 
trial then in use, or to such trial as the court should think proper. 
They were then said to be at iasvs (ad exitum^ that is, at the end 
of their pleading) ; and the question thus raised for decision was 
called the Umie} In this course of proceeding, every allegation 
passed over without denial was considered as admitted by the 
opposite party, and thus the controversy finally turned upon the 
proposition, and that alone, which was involved in the issue. 
This method was found so highly beneficial that it was retained 
after the pleadings were conducted in writing, and it still consti- 
tutes one of the cardinal doctrines of the law of pleading. 

§ 4. The issae, how formed. It will be observed, that, by the 
common law, the issue is formed by the parties themselves through 
their attorneys, the court having nothing to do with the progress 
of the altercation except to see that it is conducted in the forms 
of law; and it always consists of a single proposition precisely 
and distinctly stated. The advantages of this mode over all oth- 
ers in use, especially where the trial is by jury, are strikingly 
apparent. The opposite to this method is that which was pursued 
in the Roman tribunals, and which sfill constitutes a principal 
feature in the proceedings in the courts of Continental Europe, 
by which the complaint of the plaintiff may be set forth at large, 
with its circumstances and in all its relations, even to dififuseness, 
in his bill or libel, and the answer and defence of the defendant 
may be made with equal variety and minuteness of detail. Pro- 
ceedings in this form are utterly unfit for trial by a jury ; and 
accordingly, when material facts are to be settled in chancery, 
in England, the chancellor ordinarily directs proper issues to be 
framed and sent for trial to the courts of common law. In the 
United States, the same. course is pursued wherever the equity 
and common-law jurisdictions are vested in separate tribunals. 

1 Stephen on Pleading, pp. 29, 80. 



PABT IT.] PfiEUMINART OBSERVATIONS. 5 

But where the coarts of oommon law are also clothed with chan* 
eery powers, if important facts are asserted and denied, whi^h are 
proper to be tried by a jury, the court, in its discretion, will direct 
the making up and trial of proper issues at its own bar.^ In the 
courts of the States of Continental Europe, where the forms of 
procedure are derived from the Roman law, the necessity has been 
universally felt of adopting some method of extracting from the 
multifarious counter-allegations of the parties the material points 
in controversy, the decision of which will finally terminate the 
suit ; and various modes have been pursued to attain this neces- 
sary object. In the courts of Scotland, where the course of pro- 
cedure is still by libel and answer, the practice since the recent 
introduction of trials by jury is for the counsel first to prepare 
and propose the issues to be tried, and, if these are not agreed to 
(or, which is more usual, are omitted to be prepared), the clerks 
frame the issues, which are sent to the Lord Ordinary for his ap- 
proval. In all these methods, the point for decision is publicly 
adjusted by a retrospective selection from the pleadings ; but, in 
the more simple and certain method of the common law, the alter- 
cations of the parties, being conducted by the established rules of 
good pleading, will, by the mere operation of these rules, finally 
and unerringly evolve the true point in dispute in the form of a 
single proposition. 

§ 6. iMaeB, general and apeoial. Of the issues thus raised, some 
are termed general Usties ; others are special. The general issue 
is BO called, because it is a general and comprehensive denial of 
the whole declaration, or of the principal part of it. The latter 
kind of issue usually arises in some later stage of the pleadings, 
and is so called by way of distinction from the former. The gen- 
eral issue, as will be more distinctly seen in its proper place, puts 
in controversy the material part of the declaration, and obliges the 
plaintiff to prove it in each particular, (a) Thus, upon the plea 

^ Charles Rirer Bridge v. Warren Bridge, 7 Pick. 844. 

(a) In eeTeral of the United States the eometimes perfonned by what is called the 
defence ia now set up by an ansufer, which specificatdon of defence. See Massachu- 
most deny either in general terms or spe- setts Pub. Stat. c. 167, §§ 15, 17, 20. Cali- 
dfically, all the facts in the plaintiirs fomia : HitteU's Codes, f 437. Geonpa : 
statement of his case which the defendant Code 1882, f 8452. Indiana : Stat 1876, 
intends to controvert, and most set forth, p. 60. Iowa: Code 1873, § 2655. Ken- 
in clear and precise terms, each sabstan- tacky : Bullitt's Codes (Civil), c. i^« P* 22. 
tive fact intended to be relied on in avoid- Ohio: Rev. Stat 1880, f 5070. Rhode 
aace of the action. This latter duty is Island : Fab. Stat 1882, p. 578. 



6 LAW OP EVIDENCE. [PART IV. 

of not guilty, in trespass quare clatisum fregit^ the plaintiff must 
prove his possession by right as against the defendant, the unlawful 
entry of the defendant, and the damages done by him, if more than 
nominal damages are claimed. But if the defendant specially pleads 
that the plaintiff gave him a license to enter, then no evidence of 
the plaintiff's title or possession, or of the defendant's entry, need 
be adduced, the fact of the license being alone in controversy. 

§ 6. Oeneral Issae in auumpsit The form of the general issue 
in assumpsit is, " that the defendant did not promise (or under- 
take) in manner and form," Ac. This would seem to put in issue 
only the fact of his having made the promise alleged ; and so, 
upon true principle, it appears to have been originally regarded. 
But for a long time in England, and still in the American courts, 
a much wider effect has been given to it in practice ; the defend- 
ant being permitted, under this issue, to give in evidence any 
matter showing that the plaintiff, at the time of the commence- 
ment of the suit, had no cause of action.^ The same latitude has 
been allowed, under the general issue of not guilty, in actions of 
trespass on the case, by permitting the defendant not only to con- 
test the truth of the declaration, but, in most cases, to prove any 
matter of defence tending to show that the plaintiff has no right 
of action, even though the matter be in confession and avoidance, 
such, for example, sls a release or a satisfaction given.^ 

§ 7. Limitation of the iBsae. It is obvious that so very general 
a mode of pleading and practice is contrary to one of the great 
principles of the law of remedy, which is, that all pleadings should 
be certain, that is, should be distinct and particular, in order that 
the party may have a full knowledge of what he is to answer, 
and to meet in proof at the trial, as well as that the jury may 
know what they are to try, and that the courts may know not 
only what judgment to render, but whether the matter in contro- 
versy has been precisely adjudicated upon in a previous action. 
To the parties themselves this distinctness of information is essen- 
tial on principles of common justice. These considerations led to 
the passage of an act,^ in England, under which the courts have 
corrected the abuse of the general issue, by restricting its mean- 
ing and application to its original design and effect.^ 

1 Stephen on Pleading, pp. 179, 180. > Ibid. pp. 182, 183. 

» 8 & 4 W. IV. c. 42. 

« See Beguile Generales, HiL T. 1834 ; 10 Bing. 468-475. 



FABT IV.] PRELDONABY OBSERVATIONS, 7 

§ 8. Same snbjeot. Thus, in all actions of assumpsit, except on 
bills of exchange and promissory notes, the general issue hj the 
English rules now operates only as a denial in fact of the express 
contract or promise alleged, or of the matters of fact from which 
the contract or promise alleged may be implied by law. In actions 
on bills of exchange and promissory notes the plea of non assump- 
sit is no longer admissible, but a plea in denial must traverse 
some particular matter of fact. All matters in confession and 
avoidance, whether going to the original making of the contract 
or to its subsequent discharge, must now be specially pleaded. 
The plea of nan est factum, in debt or covenant, is restricted in 
its operation to the mere denial of the execution of the deed, in 
point of fact ; all other defences, whether showing the deed ab- 
solutely void or only voidable, being required to be specially 
pleaded. The plea of nan detinet, ol&o, now puts in issue only 
the detention of the goods, and not the plaintiflTs property therein. 
In actions on the case, the plea of not guilty is now restricted in 
its effect to a mere denial of the breach of duty or wrongful act, 
alleged to have been committed by the defendant, and not of the 
facts stated in the inducement; in actions of trespass quare 
dausum /regit, the same plea operates only as a denial that the 
defendant committed the act alleged in the place mentioned, and 
not a denial of the plaintiff's possession or title ; and in actions 
of trespass de bonis aspartatis, this plea operates only as a denial 
of the fact of taking or damaging the goods mentioned, but not of 
the plaintiff's property therein. 

§ 9. Same sabjeot While the learned judges in England have 
thus labored to restore this part of the system of remedial justice 
to more perfect consistency, by limiting the general issue to 
its original meaning, thus securing greater fairness in the trial 
by preventing the possibility of misapprehension or surprise, 
the course of opinion and practice in the United States seems 
to have tended in the opposite direction. The general issue is 
here still permitted to include all the matters of defence which 
it embraced in England prior to the adoption of the New Rules ; 
and in several of the States the defendant is by statute allowed 
in all cases to plead the general issue, and under it to give in 
evidence any special matter pleadable in bar, of which he has 
given notice by a brief statement, filed at the same time with the 
plea, or within the time specified in the rules of the respective 



8 LAW OP WnDKSCR. [PABT IV, 

courts.^ In some States, however, the course of remedy is bj 
petition and answer, somewhat similar to proceedings in equity. 

§ 10. Same subject Amid such diversities in the forms of 
proceeding, it is obviously almost impossible to adjust a work like 
this to the particular rules of local practice, without at the same 
time confining its usefulness to a very small portion of the coun- 
try. Yet as, in every controversy, under whatever forms it may 
be conducted, the parties may come at last to some material and 
distinct proposition, affirmed on one side and denied on the other ; 
and as the declarations and pleas and the rules of good pleading, 
adopted in the courts of common law, exhibit the most precise 
and logical method of allegation, the principles of which are 
acknowledged and observed in all our tribunals, it may not be 
impracticable, by adhering to these principles, to lay down in the 
following pages some rules which will be found generally appli- 
cable, under whatever modifications of the common law of remedy 
justice may be administered. 

§ 11. Vaiianoe. A further preliminary observation may here 
be made, applicable to every action founded on a written docu- 
ment ; namely, that the first step in the evidence on the side of 
the plaintiff is the production of the document itself. If there is 
any variance between the document and the description in the 
declaration, it will, as we have previously seen,^ be rejected. If 

1 See New York Rev. Stat. voL ii. p. 362, § 10. Maine : Rev. Stat c. 116, § 18. 
LL. Ohio, c. 822, § 48 (Chase's ed.). LL. Tennasaee, 1811, c 114. In Massachuaetta, 
this privilege is given only in certain specified cases. See Mass. Rev. Stat. c. 21, 
§ 49 ; c, 58, § 17 ; c. 85, § 11 ; c. 100, §§ 26, 27 ; c. 112, § 8 : but in nearly aU the 
States it is accorded to justices of the peace, and other public officers and their agents, 
in actions for anything done by them in the course of their official duties ; the statutes 
being similar to 21 Jac. I. c. 62, and other English statutes on this subject. In Maine, 
the plaintiff may file a counter brief statement of any matter on which he intends to 
rely, in avoidance of the matter contained in the brief statement of the defendant ; 
so that the substance of the common law of pleading is not totally abolished, though 
exceptions of form, by special demurrer, can no longer be taken. Of the wisdom of 
such wide departures from the distinctness and precision of allegation required iit>m 
both parties by the common law, grave doubts are entertained oy many of the pro- 
fession ; especially where the rules do not require the plaintiff to file ^ny notice of ihe 
reply. Intended to be made to the matter set up in defence. Nor is it readilv per- 
ceived how the courts can administer equal and certain justice to the parties, without 
adopting, in the shape of rules of practice, or in some other form, the principle of the 
common hiw, which requires that each party be seasonablv and distinctly informed, by 
the record, of the proposition intended to be maintained by his adversary at the trial, 
that he may come prepared to meet it. But these are considerations more properiy 
belonnng to another place. 

> Vol 1. §§ 66, 68, 61, 68, 66, 66, 69, 70. There is a material distinction between 
mere allegations and matter of description. In mere matters of allegation, a variance 
in proof, as to time, number, or quantity, does not affect the plainnff's right of re- 
covery ; but in matters of description, a variance in time is lataL Gates v. Bowker, 
18 Vt. 28. 



PAST lY.] PBEUMINABT OBSERVATIONS. 9 

the variance is. occasioned by a mere mistake in setting out a 
written instmment^ the record may generally be amended by 
leave of the court, under the statutes of amendment of the United 
States, and of the several States ; and in England, under Lord 
Tenterden's act.^ Thus, where a written contract by letter was 
set forth as a promise to pay for certain goods, and, on production 
of the letter, the contract appeared to be an undertaking to gua- 
rantee to the plaintiff the amount supplied, an amendment was 
permitted.^ But if the variance is occasioned by the allegation of a 
matter totally different from that offered in evidence, it will not be 
amended. Thus where, in a declaration for a malicious arrest, the 
averment was that the plaintiff in that action ^^ did not prosecute 
his said suit, but tlierein made default," and the proof by the record 
was, that he obtained a rule to discontinue, the plaintiff was not 
permitted to amend, the matter being regarded as totally different.^ 
§ 11 a. Amendments of prooess. The general practice in these 
cases may be illustrated by a few examples. And first, in regard 
to amendments of the process in the names of parties. The rule 
of the common law, that no new parties can be added by amend- 
ment,^ is believed to be universally adopted in the United States ; 
though in some few States the common law in this respect has 
been changed by statutes, which permit this to be done in certain 
cases at law, as is done in all cases in courts of equity. But, 
generally, parties unnecessarily and improperly made such, and 
having no interest in the matter, may be stricken out, where the 
cause or nature of the action is not affected, and no injury can 
accrue to the defendant. Thus, if the wife is improperly made 
defendant with the husband in an action on a contract made 
during coverture;^ or if several are sued in covenant, and, on 
oyer had, it appears that some of them never became parties to 
the deed,* — the names improperly inserted may be stricken out 
of the process. But if such amendment will change the ground of 
action, or have the effect of constituting a different party to the 

1 9 Geo. IV. c. 15. See also Stat. 8 & 4 W. IV. c 42. 
s Hanbnry v. EUa, 1 Ad. k El. 61. 

* Webb V, Hill, 1 M. & Malk. 253, per Ld. Tenterden. 

« Winslow V. Merrill, 2 Fairf. 127 ; Wilson v. WaUaoe, 8 S. & R. 58 ; Atkinson v. 
Ckpp» 1 Wend. 71. 

* Colcord V, Swan, 7 Mass. 291 ; Parsons v. Plaisted, 18 Mass. 189 ; Whitbeck v. 
Cook, 15 Johns. 488. 

* McClnre v. Burton, 1 Car. Law Repos. 472. And see Wilson v. King, 6 Teig. 
498, aee. But see Redington v. Farrar, 5 Oreenl. 879, where, in aaswnpgit a^dnst two, 
tn amendment by striking oat the name of one of them was refused. 



10 LAW OP EVIDENCE. [PART IV. 

record, as, if the suit be against two as partners, and it is proposed 
to amend by erasing the name of one, and so making it a suit 
against the other in his several capacity, it will not be allowed.^ 
If the name of the party be misspelled, or the designation of 
junior be omitted, or a corporation be sued by a wrong name, 
the service of process being right, the mistake may be amended.' 
So, also, the process may be amended by stating the capacity or 
trust in which the plaintiff sues, such as trustee or other officer 
or agent of a society beneficially interested in the suit, or the like ; 
or, if an infant, by inserting the name of his next friend.^ So, a 
scire facias may be amended by the record on which it is founded.* 
§ 11 b, AmendmentB of pleadings. In the next place, as to 
amendments of the pleadings. The general doctrine of variance 
having already been discussed in the preceding volume,^ it will 
suffice here to remark, that the courts manifest an increasing dis- 
position to give to the statutes of amendments the most beneficial 
effect, not suffering the end of the suit to be defeated, where the 
record contains the substance of a valid claim^ and an amendment 
is seasonably asked for. The American statutes on this subject 
give to the courts much broader discretionary powers than are 
given by any English statutes, prior to Lord Tenterden*s act; 
and powers scarcely exceeded by that and the later statutes.^ 
Accordingly, the only question in regard to the admissibility of 
an amendment of the pleadings now is, whether it introduces 
another and distinct cause of controversy. If it does not, but the 
original cause of action or ground of title or defence is adhered 
to, the allegations and pleadings may be amended.^ (a) Thus, if, 

^ Peck V, Sill, 3 Conn. 157. Whether a writ of cntrr may be amended by striking 
out the name of one of the demandants, qtutre. See Treat v. McMahon, 2 Greenl. 
120 ; Pickett v. King, 4 N. H. 212, that it may not be ; Rehoboth v. Hunt, 1 Pick. 
224, that it may be. 

* Fumiss V, Ellis, 2 Brock. 14 ; Eincaid v. Howe, 10 Mass. 203 ; Bullard v. Nan- 
tucket Bank, 5 Mass. 99 ; Sherman v. Connecticut River Bridge, 11 Mass. 338 ; 
Bumham v. Strafford Savings Bank, 5 N. H. 573. 

* Anderson v. Brock, 3 Greenl. 243 ; Blood v. Harrington, 8 Pick. 552. 

* Maus V. Maus, 5 Watts, 315 ; Moody v. Stracey, 4 Taunt 588 ; Williams v. Lee, 
2 Taylor, 146 ; Burrows v. Heysham, 1 Dall. 133 ; Hazeldine v. Walker, 1 Har. & 
Johns. 487 ; Patrick v. Woods, 3 Bibb, 232. 

* See ante, vol. i. §§ 68-73. 

* See 6 Dane's Abr. c. 184, art 1, § 3 ; art 11, §§ 7, 8. 

7 Hflvnes v. Morgan, 3 Mass. 208 ; Ball v. Claflin, 5 Pick. 804 ; Cassell v. Cooke, 
8 S. & K. 287, per Duncan, J. ; Cunningham v. Day, 2 S. & R. 1 ; Eester v. Stokes, 4 
Miles, 67 ; Commonwealth v. Meckling, 2 Watts, 180 ; Ebersoll v. Erug, 5 Binn. 53, 
per Tilghman, C. J.; Pullen v. Hutchinson, 12 Shepl. 249. 

(a) Massachusetts : Pub. Stat c. 167, c. 15. California: HitteU's Codes, §§ 469, 
§§ 41, 42, 43, 44. Alabama : Code 1876, 470. Connecticat : General Laws 1875, 



PART IV.] PBEUMINABT OBSERVATIONS. 11 

in an action for monej had and received, the promise be laid as 
made by the administrator, when it was the promise of his intes- 
tate;^ or, if the allegation of a demand be omitted where it was 
necessary to the foundation of the action;^ or, if the indorser of 
a note in blank be charged as an original promisor, when he 
should have been charged as a guarantor ;^ or, if the loss of a 
vessel be alleged to have been by capture and by perils of the sea, 
when it was by barratry ;* or if , in trover for promissory notes, 
or in assumpsit to recover the money due upon them, they are 
misdescribed,^ — in these and the like cases the errors may be 
amended. But to add counts upon other promissory notes will 
not be allowed ;^ nor will the plaintiff be permitted to amend, in 
an action against the sheriff for a false return of bail when none 
was taken, by adding a count for refusing to deliver the bail- 
bond, mentioned in his return.^ 

§ 11 e. Amendments by Bne^h statutes. The recent Unglish 
Btatutes having been framed for the like objects, it may be useful 
here to advert to their provisions and the decisions under them. 
The statute, termed Lord Tenterden^a Act^ empowers the courts 
^* to cause the record, on which any trial may be pending in any 
civil action, or in any indictment or information for any misde- 
meanor, when a variance shall appear between any matter in writ- 
ing or in print produced in evidence^ and the recital or setting forth 
thereof upon the record whereon the trial is pending j to be forth- 
with amended in such particular,'' on payment of such costs, if 
any, as the court shall think reasonable. By a subsequent stat- 
ute,^ this power was extended not only to civil actions, but to 
informations in the nature of a quo warranto^ and proceedings on 
a mandamus^ the courts being authorized, ^^when any variance 

^ Eaton V. Whitaker, 6 Pick. 465. * Ewing v. French, 1 Blackf. 170. 

s Tenney v. Prince, 4 Pick. 385. ^ Anon., 15 S. & R. 83. 

• Hoflfnagle v. Leavitt, 7 Cow. 517 ; Stanwood v. Scovell, 4 Pick. 422. 

• Farm. & Mech. Bank v. Israel, 6 S. & R. 294. 

7 Eaton V. Ogier, 2 Greenl. 46. See further, Bntterfield v, Harrell, 8 N. H. 201 ; 
Edgerley v. Emerson, 4 N. H. 147; Carpenter v. Gookin, 2 Vt 495. 

• Stat. 9 Geo. IV. c. 16. » Stat 8 & 4 W. IV. c. 42. 



c yiii Delaware: Laws 1874, c. cxii. 1878, § 85, p. 610. New Hampshire: 

Georgia: Code 1882, c ii. p. 879. Illi- Gen. I^aws 1878, p. 526, § 8. New Jer- 

nois: Rev. Stat (Hard) c. 7. Indiana: sey : Revision, p. 9, § 8 et seq, Ohio: 

Stat 1876, pp. 59, 74. Iowa : Code 1873, Rev. Stat 1880, § 5114. Rhode Island : 

{{ 2686, 2692. Kentucky: Bullitt's Code Pub. Stat 1882, p. 577. Vermont : Rev. 

(Civil), c viii. p. 80. Maine : R«\r. Stat Laws 1880, S§ d06, 907. 
1871, § 9, p. 689. Maryland : Rev. Code 



12 LAW OP EVIDENCE. [PAET IV. 

shaU appear between the proof and the recital or netting forth on 
the record^ writ^ or document on which the trial is proceeding^ of 
any contract^ cuetom^ prescription^ name, or other matter^ in any 
particular, — in the judgment of the court or judge not material 
to the merits of the case^ and by which the opposite party cannot 
have been prejudiced in the conduct of his action, prosecution, or 
defence, to be forthwith amended," upon such terms as to pay- 
ment of costs, or postponing the trial, or both, as the court or 
judge shall think reasonable ; and if the amendment, being in a 
particular not material to the merits, is such as that the opposite 
party may have been prejudiced thereby in the conduct of his 
suit or defence, then upon such terms as to payment of costs, 
and withdrawing the record, or postponing the trial, as the court 
or judge shall think reasonable. 

§ 11 d. Instances of amendments allowed. These statutes have 

been administered in England in the liberal spirit in which they 
were conceived ; care being taken, as in the United States, that 
no new and distinct cause of controversy be created. Thus, in 
slander, where the words charged were, " S. is to be tried " for 
buying stolen goods, and the words proved were, " I have heard 
that he is to be tried," an amendment was allowed, as it went 
only to the amount of the damages, and not to the merits of the 
action.^ So, where the words stated were English, and the words 
proved were Welsh.^ So, where the allegation was of a libel 
published in a certain newepaper^ and the proof was of a slip of 
printed paper, not appearing to have been cut from that news 
paper, though the newspaper contained a similar article.^ So, 
where the plea to an action upon a bill of exchange was, that the 
bill was given for two several sums lost at play in two several 
games, and the proof was that the parties played at both games, 
and that the defendant lost the gross sum in all, but not that he 
lost any amount at one of the games, it was held amendable.^ An 
amendment has also been allowed in aeewmpwt upon the warranty 
of a horse, where a general warranty was alleged, and the proof 
was of a warranty with the exception of a particular foot.^ So, 

1 Smith V. Enowelden, 2 M. & G. 561. 

s Jenkins v. Phillips, 9 C. & P. 766, per Coleridge, J. The contmy was held, under 
the former statutes. Zenobio v. Axtell, 6 T. R. 162 ; Woimouth v. Cramer, 8 Wend. 
394. 

• Foster v. Pointer, 9 C. ft P. 718, per Gnmey, B. 

* Cooke V. Stafford, 18 M. & W. 879. 

^ Hemming v. Parry, 6 C. & P. 680. See also Bead «. I>imflmore» 9 C. fc P. 588. 



PABT lY.] PBEUMINART OBSERVATIONS. 13 

where the allegation was with a qualification, sjid the proof was 
of a contract in general terms, without the qualification.^ In like 
manner, where the contract, instrument, or duty has been mis- 
described in the record, it is held amendable ; as, in assumpsit on 
a charter-party, where the allegation of the promise, being in- 
tended only as a statement of the legal effect of the instrument, 
was erroneous, the plaintiff was permitted to amend, either by 
striking out the allegation, or by substituting a corrected state- 
ment.^ So, in assumpsit ^^ for the use and occupation of certain 
standings, market»places, and sheds," where the proof was of a 
demise of the tolls to be collected at those places, an amendment 
was allowed.^ So, where the promise alleged was to '^ pay " for 
goods furnished to another, and the proof was, to '^ guarantee " 
the payment ;^ and where the declaration was upon an instrument 
described as a bill of exchange, but the instrument produced 
appeared in fact to be a promissory note ;^ and where a guar- 
anty was set forth as for advances to be made by A, and the 
proof was of a guaranty for advances to be made by A, or any 
member of his firm, or e eonverso ; ^ and where the declaration 
charged the defendant upon the contract as a carrier, and the 
proof was, that, if liable at all, it was only as a wharfinger, on a 
contract to forward ; ^ and where the conti*act alleged was, to 
build for the plaintiff a certain room, booth, or building, accord- 
ing to certain plans then agreed on, by the 28th of June, for the 
sum of £20, and the contract proved was, to erect certain seats 
or tables, for £25, to be completed four or five days before that 
day, being the day of the coronation ;^ and where, in debt on a 
bond, the penalty was stated to be £260, but in the bond pro- 
duced it was only £200 ;^ and in cieise against the sheriff for a 
Yoluntary escape, where the proof was, that the officer did not 

^ Eyans v. Tryer, 10 Ad. & £1. 609. 

• WhitwiU V. Scheer, 8 Ad. k El. 801. Bat in a sabsec^nent case of coyenant, 
where it was objected tbat no such covenante oould be implied m the deed, it was held, 
hy Manle, J., that the statutes of amendment were designed to meet variances ansing 
from accidental slips, and not to extend to cases where the pleading has been in ten - 
tionaUy and deliberately, but erroneously, framed ; and he uierefore refused to aUow 
an amendment. Bowers v, Nixon, 2 Car. & Kir. 872. 

• Mayor, ftc. of Carmarthen v. Lewis, 6 C. & P. 608. 

• Hanbory v. Ella, I A^ k £1. 61. 

• MoiUiet v. PoweU, 6 C. & P. 238. 

• Chapman v, Sutton, 2 Man. Gr. k Scott, 684 ; Boyd «. Moyl% Id. 644. 
» Parry v. Fairhurst, 2 C. M. & R. 190 ; 6 Tyrw. 686. 

• Ward V, Pierson, 5 M. & W. 16 ; 7 DowL 882. 

• HiU V. Salt» 2 a fc M. 420 ; 4 l^r^. 271. 



14 LAW OP EVIDENCE. [PABT IV. 

arrest, bat negligently omitted so to do, having opportunity;^ 
and even where, in assumpsit upon a promissory note, described 
as made by the defendant on the 9th of November, 1838, for 
£250, payable on demand, the note produced bore date Novem- 
ber 6th, 1837, and was payable with interest twelve months after 
date, it also not appearing that there existed any other note be- 
tween the parties,^ — in these, and many similar cases, amend- 
ments have been allowed. 

§ 11 e. Inatances of amendments dlsaUowed. On the other hand, 
the courts, acting under these statutes, have refused amendments^ 
where the object was merely to supply material omissions^ as well 
as where the amendment will probably deprive the defendant of 
a good defence^ which he otherwise might have made, or would 
probably require new pleadings^ or would introduce a trarhsaetion 
entirely different from that stated in the plea.^ Thus, an amend- 
ment has been refused in trespass, to extend the justification to 
certain articles omitted in the plea;^ and in replevin to extend 
the avowry in the like manner.^ So, to enlarge the ad damnum 
in the declaration.*^ So, in assumpsit by the vendee against the 
vendor of goods for non-delivery, where the contract alleged was 
for a certain price, and the contract proved was for the same 
nominal price, with a discount of five per cent, an amendment was 
refused as tending, under the circumstances stated at the bar, to 
preclude a good defence.® And, where the plaintiff alleged title 
to a stream of water as the possessor of a mill, which the defend- 
ant traversed, and the proof was that he was entitled only as 
owner of the adjoining land, an amendment was refused, on the 
ground that it might require a change of the issue, and that the 
defendant may have been misled by the plaintiff's mode of 
pleading.® 

§ 12. Materiality of date. It is further to be observed, that 

1 Guest V. Elwes, 5 Ad. & El. 118 ; 2 N. & P. 280. 

« Beckett v. Dutton, 7 M. & W. 157 ; 4 Jur. 998 ; 8 Dowl. 866. 

s Feny v. Watts, 8 Man. & Or. 775, as explained in Gnrford v. Bayley, Id. 784. 

• David V. Preece, 5 Ad. k El. n. 8. 440. 

• John V. Carrie, 6 C. & P. 618. 

• Bye V. Bower, 1 Car. k Marshm. 262. In the United States, amendments in 
these two cases would doubtless be allowed. • 

T Watkins v. Morgan, 6 C. & P. 661. In the United States it has been held other- 
wise. See McLellan v. Crofton, 6 Greenl. 807 ; Bogart v. McDonald, 2 Johns. Gas. 
219 ; Danielson v. Andrews, 1 Pick. 156. And see Tomilson v. Blacksmith, 7 T. R. 
182. 

• lyey v. Young, 1 M. & Rob. 645. 

• Frankhum v. £. of Falmouth, 6 C. & P. 629 ; 2 Ad. & El. 452. 



PABT IV.] PBEUMINABT OBSERVATIONS. 15 

though every part of a written document is descriptive, and there- 
fore material to be proved as alleged, yet if, in declaring upon such 
an instrument, the allegation is, that it was made upon such a day, 
without stating that it bore date on that day, the day in the dec- 
laration is not material, and therefore need not be precisely 
proved ; but if it is described as bearing date on a certain day, 
the date must be shown to be literally as alleged, and any vari- 
ance herein will be fatal unless amended.^ The date is not of 
the essence of the contract, though it is essential to the identity 
of the writing, by which the contract may be proved. The plain- 
tiff, therefore, may always declare according to the truth of the 
transaction, only being careful, if he mentions the writing and 
undertakes to describe it, to describe it truly .^ 

§ 13. Zmmatexlal disorepancies. But an immaterial discrepancy 
between the record and the deed itself is not regarded. Thus, 
upon oyer of a deed, where the declaration was that it bore date 
in a certain year of our Lord and of the then king, and the deed 
simply gave the date tlms, " March 30, 1701," without mention 
of the Christian era, or of the king's reign, it was held well.^ So, 
where the condition was, " without any fraud or other delay," the 
omission of the word " other " in the oyer was held immaterial.* 
Nor will literal misspelling be regarded as a variance.^ 

§ 14. Bffeot of a writiag to be set out in pleading. Ordinarily, in 
stating an instrument or other matter in pleading, it should be set 
forth, not according to its terms or its form, but according to its 
effect in law ; for it is under its latter aspect that it is ultimately 
to be considered. Thus, If a joint tenant conveys the estate to 
his companion by the words " give, grant," Ac, the deed is to be 
pleaded as a release, such only being its effect in law. So if a 
tenant for life conveys to the reversioner by words of grant, it 
must be pleaded not as a grant, but as a surrender.^ So, where a 
bill of exchange is made payable to the order of a person, it may 
be declared upon as a bill payable to the person himself.^ If no 

^ Coxon V, Lyon, 2 Gamp. 807, n. ; Anon., 2 Camp. 808, n., eor. Lord Ellen- 
borongh. 

* Hacne «. French, 8 B. & P. 178 ; De la Conrtier v. BeUamy, 2 Show. 422. 
' Hounan v. Borough, 2 Salk. 658. ^ Henry v. Brown, ] 9 Johns. 49. 

* Coll V. Sannin, 8 Lev. M ; Wangh v. BneseU, 5 Taunt. 707. The omission of 
the word "sterling," as descriptlTe of the kind of currency, is immateriaL Kearney 
9. King, 2 B. ft Aid. 801. 



< Stephen on PL 889, 890. 

* Smith V. M'Clure, 6 East, 476 ; Fay v. Goulding, 10 Pick. 



122. 



16 LAW OP EYIDENGE. [PABT lY. 

time of pajment be mentioned, the instrmnent should be declared 
upon as payable on demand.^ If a bill be drawn or accepted, or 
a deed be made by an agent in the name of his principal, it should 
be pleaded as the act of the principal himself.' And a bill pay* 
able to a fictitious person or his order is, in efiEect, a bill payable 
to bearer, and may be declared on as such, in faror of a bona fide 
holder ignorant of the fact, against all the parties who had knowl- 
edge of the fiction.' 

§ 15. Literal exactnais not always snflolant. But, on the other 
hand, it will not always suffice to adhere to the literal tertM of 
the instrument, in setting it forth in the declaration ; for some- 
times the true interpretation of the instrument itself may lead to 
a result totally difiFerent from the intendment of law upon the 
face of the declaration. Thus, where a bill was drawn and dated 
at Dublin, for a certain sum, and in the pleadings it was described 
as drawn ^^ at Dublin, to wit, at Westminster," without any men- 
tion of Ireland, or of Irish currency, it was held that here was a 
material variance between the allegation and the evidence. For 
though the place and the sum corresponded even to the letter, yet 
by the legal interpretation of the bill, the currency intended was 
Irish, whereas by the allegation in the record the court could 
not legally understand any other than British sterling, because no 
other was averred, and the bill was not alleged to have been 
drawn in Ireland.^ So, where a note was made without any 
mention of the time of payment, and none was averred in the 
declaration, the judgment was reversed upon error brought, the 
plaintiff not having declared upon the contract according to its 
legal effect, but on the evidence only.^ 

§ 16. Xbcecntion of inatnunenta. In regard to the proof of tiie 
formal execution of deeds, bills of exchange, and other written 
documents, it was formerly the ^ght of the adverse party to re- 
quire precise proof of all signatures and documents, making part 
of the chain of titie in the party producing them. But the great 
and unnecessary expense of this course, as well as the incon- 

s Heyes v. Haseltine, 2 Campb. 604. 
, 481 ; Qnmt «. Vangfaan, 8 Barr. 1516 ; 
Minet v, Gibson, 1 H. Bl. 569'; dtoiy on Bills, § 56. 

^ Kearney v. King, 2 B. & Aid. 801. Proof of a contract for boshels oats 

according to the HarUand Quay meeuure, will not support a declaration for the same 
quantity toithout any mention of the kind of measure, Hockin v, Cooke, 4 T. R. 814% 
* Bibcon V. Paige, 1 Conn. 404. But see Herrick v. Bennetti 8 Johns. 874, where 
such a declaration was held well on demurrer. 




PART IT.] PRELOONART OBSERTATIONS. 17 

Tenience and delay which it occasioned, have led to the adoption 
of salutary rules restricting the exercise of the right to cases 
where the genuineness of the instrument is actually in contro- 
versy, being either put in issue by the pleadings or by actual 
notice given pursuant to the rules of the court.^ 

§ 17. Zfoas of infttrnment to be stated. If the instrument declared 
on is lo$t^ the fact of the loss may be proved by the affidavit of 
Die plaintiff, a foundation being first laid for this proof by evi- 
dence that the instrument once existed, and that diligent search 
has been made for it in the places where it was likely to be 
found.^ 

We now proceed, to the consideration of the evidence to be 
offered under particular issues in their order. 

1 BvtheraleB of Hil. T. 1884, Reg. 20 (10 Ring. 456), either party after plea 
pleadeo, and a reaaonable time before trial, may give uotiue to the other of his inteu* 
tion to adduce in evidence certain written or printed documents ; and unless the ad- 
veme party shall consent in the manner therein prescribed, to admit their formal 
trxecntion, or the truth of the copies to be adduced, he may be summoned before a 
judge to show cause why he should not consent to such admission, and ultimately, if 
the judge shall deem the application reasonable, may be compelled to pay the costs of 
the proof. See also Tidds New Practice, pp. 481, 482. In some of the United 
States, the original right to require fonnal proof of documents remains as at common 
law, unrestricted by rules of court. In others, it has been restricted either to cases 
where the genuineness of the document has been put in issue by the x>le&ding8, or 
where the previous notice of an intention to dispute it has been seasonably given. 
(Beg. Gen. Sup. Jud. Court, Mass. 1836, Reg. Llil. 24 Pick. 899); (a) or where the 
attorney has been instructed by his client that the signature is not genuine ; or where 
the de^ndant, being present in court, shall expressly deny that the signature is his. 
(Reg. Oen. Sup. Jud. Court, Maine, 1822, Reg. XXXIIlI 1 Greenl. 421.) In the 
Circidt Court, U. S., First Circuit, the defendant is not permitted to deny his signa- 
ture to a note or bill of exchange, or the signature of a prior indorser, unless upon 
affidavit made of reasonable cause, necessary for his defence. Reg. 84. In the Sev- 
enth Circuit, the rule requires that the defendant shall first make affidavit that the 
instrument was not executed by him. And this rule has been held to be legal, under 
the Judiciary Act of March 2, 1798, c. 22. Mills v. Bank of the United SUtes, 11 
Wheat. 439, 440. By the law of South Carolina, the plaintiff is not obliged to pro- 
duce the subscribing witnesses to a bond or note, but may prove its execution by any 
other witness, unless the defendant will swear that it is not his signature. Statutes 
at Lafge, vol. v. p. 435. As to the proof in equity, of the execution of instruments, 
see pokf vol. iii. | 808, and note. 

* Ante, vol. L |S 849, 658. 

(a) This is now enacted by statute in special denial of the genuineness thereof, 

Massachusetts. Mass. Pub. ^tat. c. 167, and a demand that they shall be proved at 

§ 21. "Signatures to written instruments the trial." And similar provisions exist in 

declared on or set forth as a cause of action, other States. California : Hittell's Code, 

or as a ground of defence or set-off, shall § 887. Delaware ': Laws 1874, c. cvi, § 5. 

be taken as admitted unless the party Illinois : Rev. Stat. (Hurd), c. 110, f 84. 

sooi^t to be charged thereby files in court, Kentucky : Bullitt's 0>de8 (Ctvil), § 527, 

within the time allowed for an answer, a p. 110. 

you IL 2 



18 LAW OP BVIDENCB. [PABT IT. 



ABATEMENT. 

§ 18. Matters in abatement. Such of the causes of abatement as 
may also be pleaded in bar will generally be treated under their 
appropriate titles. It is proposed here to consider those only 
which belong more especially to this title, (a) 

§ 19. Alien enemy. The plea of alien enemy must be pleaded 
with the highest degree of legal certainty, or, as it is expressed in 
the books, with certainty to a certain extent in particular ; that 
is, it must be so certain as to exclude and negative every case in 
which an alien enemy may sue. It therefore states the foreign 
country or place in which the plaintiff was born; that he was 

(a) A plea in abatement should exclude The burden of proof on a plea in abate- 
all matter which, if alleged on the oppo- ment, if it alleges new matter and any fact 
site side, would defeat the plea. There- alleged in it is denied by the plaintiff, is 
fore, where the plea is founded upon on tne defendant who alleges the fact, and 
defective service of the process, it is in- he must offer evidence to support it. Bel- 
sufficient if it alleges that no summons lows v. Murray, 66 Me. 199. But if the 
was served on the defendant, unless it plea in abatement is itself merely a denial 
also sets forth that the defendant was at of some fact alleged in the declaration or 
the time an inhabitant of the State, writ, the burden of proof is thereby put 
Tweed v. Libbey, 87 Me. 49. See Bank upon the plaintiff. Hawkins v. Albright, 
of Rutland v. Barker, 27 Vt. 293. See 70 111. 87. 

Gould V. Smith, 30 Conn. 88, in which a It is said in State v. Flemming, 66 Me. 
plea in abatement, on the ground of a 142, that the strictest technical accuracy, 
material variance between the copy left such as has sometimes been required in 
in service and the original, alleged that purely dilatory pleas in civil suits, should 
"there was and is a material variance not be exacted in criminal cases; and if 
between said pretended cop^, so left in the plea states a valid ground of defence 
service, and the original writ and decla- in language too clear to be misunderstood, 
ration, in this, that in said original writ and is free from duplicity, nothing more 
and declaration, between the words ' fourth sliould be required. Cf. Ueynian v, Covell, 
Tuesday of January ' and the words 36 Mich. 157. The rule in civil cases is 
' then and there to answer,* were the to require that a plea in abatement should 
figures '1861,' while in said pretended not only aver what is necessary to sup- 
copy, betweeu the same words, were the port the defence, but should anticipate 
figures ' I860,' and the figures ' 1861,' and and negative all matter which would, if it 
any words indicating the same thing were were alleged by the other side, defeat the 
entirel}' omitted in said pretended copy ; plea. Tweed v. Libbey, 87 Me. 49. Hous- 
which figures, so omitted, were a material ton, &c. R. K.Co. v. Graves, 50 Tex. 181. 
part of said writ and declaration." And The allegations should also be direct, 
it was held tliat it sufficiently appeared positive statements, and not suppositions 
from the plea that the variance was a ma- or arguments. Severy v. Nye, 58 Me. 
terial one. See also dissenting opinion in 246. 1 Chitt. PI. 395. So where, in a plea 
the same by Sanford, J. A plea in abate- in abatement for want of sufficient service, 
ment, setting up several defects, not prova- the allegation was **it appears that the 
ble by the same evidence, is bad on special only service," &c., this was held bad. Perry 
demurrer. State v. Ward, 63 Me. 225. v. New Brunswick Ry. Co., 71 Me. 859. 



PART IV.] ABATEMENT. 19 

bom and continues under allegiance to its sovereign ; of parents 
under the same allegiance, or adherents to the same sovereign ; 
that such sovereign or country Is an enemy to our own ; and if 
he is here, that he came hither or remains without a safe-conduct 
or license ; ^ and that he has been ordered out of the country by 
tlie President's proclamation.' If the plaintiff should reply that 
he is a native citizen and not an alien, concluding as seems proper 
in such cases, to the country, the defendant has the affirmative, 
and must prove that the plaintiff is an alien, as alleged in the 
plea.^ If the plaintiff should reply that he was duly naturalizedj 
the proper evidence of this is the record of the court in which it 
was done. If the judgment is entered of record in legal form it 
closes all inquiry, it being, like other judgments, complete evi- 
dence of its own validity.^ These proceedings in naturalization 
have been treated with great indulgence, and the most liberal 
intendments made in their favor.^ The oath of allegiance appear- 
ing to have been duly taken, it has been held, that no order of the 
court that he be admitted to the rights of a citizen was necessary, 
the record of the oath amounting to a judgment of the court for 
his admission to those rights.^ And such record is held conclu- 
sive evidence that all the previous legal requisites were complied 
with.T 

§ 20. inanfflcient service. If the plea is founded on a defective 
or improper service of the process^ as, for example, that it was 
served on Sunday, the day will be taken notice of by the court, 
and any almanac may be referred to. So if the service is made 
on any other day on which, by public statute, no service can be 
made, the like rule prevails ; and this whether the day is fixed 
by the statute, or by proclamation by the executive.^ (a) 

1 Ctsseres v. Bell, 8 T. R. 166 ; WelU «. WiUiams, 1 Ld. Raym. 282 ; 1 Chitty on 
PI. 214 ; Stephen on PI. 67. License and safe-conduct are implied, until the Presi- 
dent shaU think proper to order the party, either by name or character, out of the 
United States. 10 Johns. 72. 

< Stat United States, July 6, 1798 (c. 76); Clark v. Morey, 10 Johns. 69, 72; 
Bacrwell v. Babe, 1 Rand. 272 ; Russell v. Skipwith, 6 Binn. 241. 

> Jackson on Pleading in Real Actions, pp. 62, 65 ; Smith v, Dotcts, 2 Dong. 42& 

« Spiatt V. Spratt, 4 Pet. 898, 408. • Priest «. Gnmmings, 16 Wend. 617, 625. 

* Campbell v. Gordon, 6 Cranch, 176. 

7 Stark V. The Chesapeake Ins. Co., 7 Cranch, 420 ; Ritchie v. Putnam, 18 Wend. 
524 ; SpraU «. Spratt, 4 Pet 898. 

8 Ante, ToL i. §§ 5, 6. 

(a) If a partnership is sued, and Kryice take advantage of this defect in serrioe, 
b not made on all tne partners, any one and should do so by a plea in abatement. 
of thoae on whom senrioe was made may Draper r. Moriarty, 45 Conn. 476. 



20 LAW OP EVIDENCE. [PABT IV. 

§ 21. ICLmomer. If the defendant, in pleading a mimomer^ 
allege that he was baptized by such a name, though the averment 
of his baptism was unnecessary, yet he is bound to prove the alle- 
gation, as laid, by producing the proper evidence of his bap- 
tism.^ This may be proved by production of the register of 
his baptism, or a copy of the register or record, duly authenti- 
cated, together with evidence of his identity with the person there 
named.^ If there is no averment of the fact of baptism, the name 
may be proved by any other competent evidence, showing that he 
bore and used that name.^ (a) 

§ 22. Indiotment improperly found. In criminal easeSy it is a 
good objection in abatement that twelve of the grand jury did not 
concur in finding the bill ; in which case the fact may be shown 
by the testimony of the grand jurors themselves, it not being a 
secret of State, but a constitutional right of the citizen.^ (i) 

§ 23. Non-tenure. In real actions, non-tenure is classed among 
pleas in abatement because it partakes of the character of dila- 
tory pleas ; though it shows that the tenant is not liable to the 
action in any shape, inasmuch as he does not hold the land.^ The 
replication, putting this fact in issue, alleges that the tenant ^^ was 
tenant as of freehold of the premises,'' and concludes to the 
country. Tenure may be proved prima facie^ by evidence of 
actual possession.^ It is also shown by proof of an entry with 

> Ante, vol i. § 60 ; Weleker «. Le PeUetier, 1 Campb. 479. 

s Ante, vol. i. f§ 484, 498. 

s Holman v. Walden, 1 Salk. 6. « Low's Case 4 Greenl. 489. 

* Saund. 44, n. (4) ; Jackson on Plead, in Real Actions, p. 91. The form of the 
plea is this : "And the said T. comes and defends his right, when, &c., and says, 
that he cannot render to the said D. the tenements aforesaid with the appurtenances, 
hecaase, he says, that he is not, and was not on the day of the parchase of the origi- 
nal writ in this action, nor at any time afterwards, tenant of tne said tenements as 
of freehold ; and this^e is ready to verify. Wherefore he prays judgment of the writ 
aforesaid, and that the same may be quashed ; and for his costs." See Jackson on 
Plead, in Real Actions, p. 93 ; Story's Pleadings, p. 41 ; Steams on Real Actions, 
App. No. 49. 

« Newhall v. Wheeler, 7 Mass. 189, 199. 

(a) If a defendant is sued by his sur- ceedings of a grand jury shonld be made 

name only, (Seely v. Boon, Coxe (N. J.), by plea in abatement. Brown v. State, 

188), or if an initial letter is put iustead of 18 Ark. 96 ; Sayle v. State, 8 Tex. 120. 

his Christian name, a plea in abatement is If a plea in abatement tenders an 

the proper mode of taking advantage of issue upon two or mora separate matters 

the error. State v. Knowlton, 70 Me. 200. of fact, each one of which is a sufficient 

So if the name of the defendant in the ground for die plea, it is bad for duplicity, 

writ is different from the name as alleged State v. Heselton, 67 Me. 598. State v. 

in the declaration. Simons v. Waldron, Ward, 68 Me. 225. As to the right of 

70 IlL 281. the grand jurors to testify to what took 

{b) Any objection based on irregularity place before them in theu* delibeiatioiu^ 

in the impanelling or in the subsequent pro- see ante^ voL i. § 252 and notes. 



PAST IT.] ABATEKENT. 21 

claim of title ; ^ or» bj a deed of conveyance from a grantor in 
possession.* If a 'disclaimer is pleaded in abatement, the only 
advantage in contesting it seems to be the recovery of costs, 
where they are given by statute to the party prevailing. In such 
cases the only proper replication is the same in form as to the 
plea of non-tenure, as before stated.' 

§ 24. Hon-joindar of parties. The non-joinder of proper parties 
is also pleadable in abatement. If the defendant plead that he 
made the promise jointly with another, the plea will be main- 
tained by evidence of a promise jointly with an infant ; ^ for the 
promise of an infant is in general voidable only, and not void ; ^ 
and it is good until avoided by himself. If he has avoided the 
promise, this fact will constitute a good replication, and must be 
proved by the plaintifiF. Where the plea was, that several persons 
named in the plea, being the assigns of H., a bankrupt, ought to 
have been joined as co-defendants, it was held that proof of their 
having acted as assignees was not sufficient, and that nothing less 
than proof of the assignment itself would satisfy the allegation.^ 
And if, on the face of the assignment, it should appear that there 
were other assignees not named in the plea, this would falsify the 
plea.^ If, upon the plea of the non-joinder of other partners as 
defendants, it is proved that though the contract was made in the 
name of the firm, it was made by the agency of the defendant 

^ 1 MaBs. 484, per Sewall, J. ; Proprieton Kennebec Purchase v. Springer, 4 
Mass. 416 ; Higbee v. Kice, 5 Mass. 844, 852. 

s Pidge «. TvUt, 4 Mass. 641 ; Knox v. Jenks, 7 Mass. 488. 

* Jackson's rlead. pp. 100, 101. The form of the general disclaimer in abate- 
ment is as foUows : "And the said T. comes and defends his right when, &c., and 
says that he has nothing, nor does he claim to have anything, in uie said demanded 
premises, nor did he have, nor claim to have, anything therein on the day of the pur> 
chase of the origiual writ in this action, nor at any time afterwards ; but he wholly 
disclaims to have anything in the said premises ; and this he is ready to verify ; 
wherefore he prays judgment of the writ aforesaid, and that the same may be quashed ; 
and for his costs.*' Id. p. 100. 

* Gibbs V. Merrill, 8 Taunt. 807 ; Woodward v. Newhall, 1 Pick. 500. The form 
of snch plea may be thus : *' And the said D. comes, &c., when, &c., and prays judg- 
Dif*nt of the writ and declaration aforesaid, because, he says, that the said several 
promises in said declaration mentioned were, and each of them was, made bv one A. 

B. jointly with the said D. ; which A. B. is still alive, to wit, at , and this he is 

ready to verify. Wherefore, because the said A. B. is not named in said writ and 
declaration, the said D. prays judgment of said writ and declaration, and that the 
same may be quashed." Story's PI. 85 ; Wentw. PL 17 ; 1 Chitty's Precedents, p. 197; 
Gould «. Lasbury, 1 C. M. & R, 254 ; Gale v. Capem, 1 Ad. & £1. 102. 

* Fisher v. Jewett, 1 Berton (N. B.)> 85. In this case, upon an able review of the 
authorities, it was held, by the learned Court of the Province of New Brunswick, that 
an infant's negotiable note was voidable only, and not void. See also 2 Kent, Gomm. 
284-286 ; 4 Cruise's Dig. 14, n. (2), Greenleafs ed. 

* Pasmore v. Bouslidd, 1 Stark. 296, per Ld. EUenborough. 
T Ibid. 



22 LAW OP EYIBENCE. [PABT IV. 

alone, and for his own use, and the proceeds were actually so 
applied by him in fraud of his partners, the plea will not be 
maintained.^ (a) 

§ 25. In Partnenhip. In cases of partnership^ if one be sued 
alone and plead this plea, proof of the existence of secret partners 
will not support it, unless it also appears that the plaintiff had 
knowledge of the fact at the time of the contract.^ (J) If he sub- 
sequently discovers the existence of a secret partner, he may join 
him or not in the action.' But if the partnership is ostensible 
and public, and one partner buys goods for use of the firm, and 
iu the ordinary course of the partnership business, and is sued 
alone for the price, — proof that the goods were so bought imd 
applied will support the plea of non-joinder, though the plaintiff 
did not in fact know of the existence of the partnership, unless 
there are circumstances showing that the partner dealt in his own 
name.^ Any acts done by the defendant in these cases, such as 
writing letters in his own name, aud the like, tending to show 
that he treated the contract as his own and not his partner's, may 
be given in evidence by the plaintiff to disprove the plea.^ If 
both partners reside abroad, and one alone being found in this 
country is sued here, and pleads the non-joinder of the other in 

^ HudBon V, Robinson, 4 M. & S. 475. So if one partner was an infant, and the 
biU was accepted by the other, in the name of the film, it has been held, that he was 
chargeable in a special count, as upon an acceptance by himself in the name of the firm. 
Burgess «. Merrill, 4 Taont 468. See farther as to abatement, infra^ tit. Assumpsit, 
f§ 110, 130-134. 

^ Baldney v. Ritchie, 1 Stark. 888. But if the suit is against one secret partner, it 
is cause of abatement, that another secret partner is not joined. Ela v. Rand, 4 N. H. 
307 ; Story on Partn. § 241 ; infra, tit Assumpsit, §§ 110, 130-134. 

* Ibid. ; De Mautort v. Saunders, 1 B. & Ad. 398 ; ExparU Norfolk, 19 Yea. 455, 
458 ; Mullet «. Hook, 1 M. & Malk. 88. 

* Alexander v, McGinn, 3 Watts, 220. 

* Murray v, Somerville, 2 Campb. 99, n. ; Clark v. Holmes, 8 Johns. 149 ; Hall v. 
Smith, 1 B. & C. 407 ; Maish v. Ward, Peake's Cas. 130. 

(a) The non-joinder of a co-tenant as one of the plaintiffs should be taken by 

plaintiff in an action of tort can be taken plea in abatement. Snow «. Carpenter, 

advantage of only by plea in abatement. 49 Vt. 426. 

Phillips V, Cummings, 11 Cush. (Mass.) (b) If suit is brought on a promissory 

469. See also Putney v. Lapham, 10 Id. note, signed with a 6rm name, against one 

234. In suits ez delicto, the objection of of the partners, he must take advantage of 

nou-joinder of plaintiff should be pleaded the non-joinder of the other partners by a 

in abatement to defeat the action. Upon plea in abatement. Hapgood v, Watson, 

trial, if not so pleaded, the objection can 65 Me. 510. So of a promissory note 

only avail in ap^rtioning or severing signed by two, on which suit is brought 

the damages. Bnggs v. Taylor, 35 Vt. against one only. Hyde v. Lawrence, 49 

66, and 1 Chitty on Pleading, 75. In the Y t. 361 . So of a lease signed by twa 

absence of a statute authorizing a married Newhall House Stock Co. v, Flint, &c., 

woman to sue alone, the objection that Ry. Co., 47 Wis. 516. 
her husband should be joined with her as 



PABT IT.] ABATEMENT. 28 

abatement, his foreign domicile and residence are a good answer 
to tlie plea.^ So, the bankruptcy and discharge of the other are 
made by statute ^ a good replication. 

§ 26. Prior Buit Where the pendency of a prior suit is pleaded 
in abatement, the plea must be proved by production of the record, 
or by an exemplification, duly authenticated.^ (a) If the priority 
is doubtful, both suits being commenced on the same day, it will 
be determined by priority of the service of process.* (6) And 
if both suits were commenced at the same time, the pendency of 
each abates the other .^ But the principle of this plea is, that the 

1 Guion V. McCuUoch, N. Car. Cas. 78. By Stat. 8 & 4 W. IV. c. 42, § 8, the plea 
itself is bad, unless it shows that the other party is resident within the jurisdiction. 

' Stat. 3 & 4 W. lY. c. 42, § 9. QuoerCf whether it be good by the common law ; 
and see infra, tit. Assumpsit, § 135. 

* Commonwealth v, Churchill, 6 Mass. 174 ; Parker v. Colcord, 2 N. H. 36. 

4 Morton v. Webb, 7 Vt. 124. 

» Beach v, Norton, 8 Conn. 71 ; Haight v. Holley, 8 Wend. 268. One form of the 
plea of prior action pending is as follows : *' And the said [defendant] comes and de- 
fends, &c., when, &c., and says that he ought not to be compelled to answer to the 
writ and declaration of the plaintiff aforesaid, because, he says, that the plaintiff hereto- 

(a) If the decision in the prior suit has pendency of another action for the same 
been appealed from (and the case has been cause, between the same parties, in a Fed- 
carried to a higher court), the records of eral court having jurisdiction, is a good 
the lower court still constitute evidence of plea in abatement in the State courts for 
the pendency of the suit. Bond v. White, the same district. Smith v. Atlantic Mu- 
24 Kan. 45. tual Fire Insurance Co., 22 N. H. 21. 

Prior proceedings in bankruptcy or in- Where the two suits are in their nature 

solvency will not bar a suit, unless it be different, as where the one is in personam 

also alleged in the plea in abatement that and the other in rem, the pendency of the 

the debt sued on has been proved against one cannot be pleaded in abatement of the 

the bankrupt in such proceedings. Lewis other. Harmer v. Bell, 22 £ng. Law 

V, HiggiDS, 52 Md. 614. Nor is an action & £q. 62. See also Clark v. Wilder, 25 

pending in another State sufficient to bar Penn. St. 814. The pendency of one in- 

a second suit. Hadden v. St. Louis, &c. dictment is no good plea in abatement to 

R.R.Co., 57 How. (N. Y.) Pr. 890 ; Hatch another indictment for the same cause ; 

V, Spofford, 22 Conn. 485 ; Hogg v. Charle- but when either indictment is tried, and 

ton, 25 Pa. St 200; Cole v. Flitcraft, 47 Md. a judgment rendei-ed thereon, such judg- 

812; Lyman v. Brown, 2 Curt. C. C. 559. ment will afford a good plea in bar to the 

So a plea of a suit pending in equity in a other indictment. Commonwealths. Drew, 

foreign jurisdiction will not abate a suit 8 Cush. (Mass.) 282 ; Button v. State, 5 

at law in a domestic tribunal. Hatch v. Ind. 588. 

Spofford, 22 Conn. 485. Nor will a suit In any case the second suit is the one 

in ec^nity in a foreign jurisdiction abate a which wiU abate. The prior suit is not 

suit m equity before a domestic tribunal, affected by the fact that a second suit is 

Dillon V. Alvares, 4 Yes. 857. Insurance begun. Wood v. Lake, 18 Wis. 84. 
Co. V. Brune's Assignee, 96 U. S. 588. (b) Archew v. Ward, 9 Gratt. 622; 

The pendency of a suit in a State court, Clifford v. Cony, 1 Mass. 495. Where 

between the same parties and for the same two suits, one by declaration and one by 

cause of action, may be pleaded in abate- attachment, were commenced on the same 

ment in the Federal courts if the State day between the same parties and for the 

ooort is within the district of the Federal same cause of action, tne court will pre- 

eourt. Earl v, Raymnnd, 4 McLean, C. C. sume, the record 'showing nothing to the 

283. Where the court is not under the contrary, that the suit by declaration was 

■ame sovereisnty, the plea must show first commenced. Wales v. Jones, 1 Mich, 

jurisdiction of the former suit. White v, 254. 
WMtman, 1 Curtis, C. C. 494. So the 



24 LAW OP BVIDENCB, [PABT lY. 

same person shall not be twice vexed for the same cause of action. 
If, therefore, the first action was against one of two joint con- 
tractors, and the second action is against the other, the pendency 
of the former is not pleadable in abatement of the latter.^ 

§ 27. Judgment in plea in abatement. In all cases where a fact 
is pleaded in abatement, and issue is taken thereon, if it be found 
for the plaintiff, the judgment is peremptory and in chief, quod 
recuperet.^ The plaintiff should therefore come prepared to prove 
his damages ; otherwise he will recover nominal damages only.' 
If the issue is found for the defendant, the judgment is that the 
writ and declaration be quashed.^ 

fore, to wit, at the [here describe the court and term] impleaded the said [defendant] in a 

plea of f and for the same cause in the declaration aforesaid mentioned ; as br tha 

record thereof, in the same court remaining, appears ; that the parties in the said, for- 
mer suit and in this suit are the same parties ; and that the said former suit is still 
pending in the said court last mentioned ; and this he is readv to yerify. Wherefore 
ne prays judgment if he ought to be compelled to answer to tne writ and declaration 
aforesaid, and that the same may be quashed," &c. Story's Pleadings, p. 65 ; 1 
Chitty's Precedents, p. 201. The Ust averment, that the former suit is still pending, is 
generally inserted ; but it has been held to be unnecessary, it being sufficient if the 
plaintitf has counted in the first action, so that it may appear of record that both were 
for the same cause. See Common weahh v, Churchill, 5 Mass. 177, 178 ; 89 H. VI. 12, 
pi. 16 ; Parker v. Colcord, 2 N. H. 86 ; Gould on Pleading, c. 6, § 125. But see 
Toland v, Tichenor, 8 Rawle, 820. 

* Henry v, Goldney, 10 Jur. 439. 

' Eichom v. Le Maitre, 2 Wils. 867 ; Bowen v. Shapcott, 1 East, 542 ; Dodge v. 
Morse, 8 N. H. 232 ; Jewitt v. Davis, 6 N. H. 618. 

' Weleker v. Le Pelletier, 1 Campb. 479 ; Good v. Lehan, 8 Gush. 801. 

^ 1 Saunders's PL & £v., tit. Abatement. 



PABT nr.] ACCOBD AND SATISFACTION. 25 



ACCORD AND SATISFACTION. 

§ 28. The iBBue. In the plea of accord and satisfaction, the 
issue is upon the delivery or acceptance of something, in satisfac- 
tion of the debt or damages demanded.^ In cases of contract for 
the payment of a sum of money, the payment of a less sum will 
not be a good satisfaction ; unless it was either paid and accepted 
before the time when it was to have been paid, or at a different 
place from that appointed for the payment ; (a) but in the case 
of a simple contract for a larger sum, a negotiable security given 
for a less sum may be a good satisfaction.^ The acceptance of a 
collateral thing of value, whenever and wherever delivered, is a 
good satisfaction. (() And if the action is for general and unli- 
quidated damages, the payment and acceptance of a sum of money 
as a satisfaction is a good bar.' But if the action is upon cove- 

^ The plea is, tjbat, "after the making of the promises Id the declaration mentioned** 
(in a-wumpsU), or, "after committing the said supposed grievances in the declara- 
tion mentioned" (in com), or " trespasses" (in trespass), or, '* after the making of the 
said writing obligatory" (in d^t or conenarU), "to wit, on (&c.)f and before {or after) 
the commencement of this suit, he, the said {defendant), delivered to the plaintiff, and 
the plaintiff then accepted and received of and from the said {defendant) [here describ- 
ing the goods or thing delivered], of great yalue, in full satisfaction and discharge of 
the several promises " {or damages, or debts and moneys, as the action tnay }}e\ "in 
the declaration mentioned, and of all the damages by the plaintiff sustained by reason 
of the non-performance " {or non-payment, as Vie action may be\ " thereof. And this," 
&c. The usual form of the replication is by protesting the delivery of the thing, and 
traversing the acceptance of it in satisfaction. Chitty's Precedents, pp. 206, 444 a, 
619 ; Story's Pleadings, pp. 120, 156 ; Stephen on PI. 235, 236. 

2 Sibree v, Tripp, 15 M. & W. 23. 

• Fitch V. Sutton, 5 East, 280 ; Steinman v. Magnus, 11 East, 390 ; Co. Lit. 212 6 ; 
Cumber v. Wane, 1 Stra. 426. But this case of Cumber v. Wane has recently been 

(a) The tendency of the courts to re- its application does not exist the rule 
strain the operation of this rule is shown itself is not to be applied." The court in 
by the remarks of the court in Brooks v. Kellogg v. RichardH, 14 Wend. (N. Y.) 
White, 2 Mete. (Mass.) 288. "Thefounda- 116, says the rule "is technical and not 
tion of the rule seems therefore to be that very well supported in reason." Accord- 
in the case of the acceptance of a less sum ingly payment of a less sum than is due, 
of money, in discharge of a debt, inas- coupled with payment of the costs and 
much as there is no new consideration, no expenses of a suit which had been insti- 
benefit accruing to the creditor, and no tuted to recover it, was held a good satis- 
damage to the debtor, the creditor may faction of the whole debt. MitcheU v. 
violate with legal impunity his promise to Wheaton, 46 Conn. 315. So, giving the 
his debtor, however freely and understand- check or note of a third party for a less 
ingly made. This rule, which obviously amount than the debt on which the action 
may be urged in violation of good faith, is is founded. Kellogg v. Richards, supra, 
not to be extended beyond ito precise im- (6) Ridlon, Aum'r v. Davis, 51 Vt. 
port, and wherever the technical reason for 457. 



26 LAW OP EVIDENCE. [PART IV. 

nant, the satisfaction must have been made after breach ; for if it 
were before breach, it is not good.^ And where a duty in certain 
accrues by deed, tempore corrections scripti, as, by an obligation 
to pay a certain sum of money, this certain duty having its origin 
and essence in the deed alone, the obligation, it seems, is not dis- 
charged but by deed ; and therefore a plea of accord and satis- 
faction of the bond by matter en pais would be bad ; but if it 
were a bond with condition, and the plea in such a case had been 
in discharge of the sum mentioned in the condition of the bond* 
it would be good.^ 

§ 28 a. When effect of plea queetlon of tainr. The facts, in re- 
spect to the arrangement or accord between the parties being as- 
certained, their effect is purely a question of law, and is not to 
be submitted to the jury. Thus, where A and B having mutual 
causes of action in tort, and meeting for the purpose of adjusting 
the demands of B only, it was insisted by the latter, that A 
should pay him therefor a sum of money and give him a receipt 
in full of all demands, which was accordingly done, but nothing 
was said about A's cause of action ; it was held that this was 
a good accord and satisfaction of the demand of A against B.^ 

§ 29. Accord and satisfaction may be put in evidence. In the 
United States, an accord with satisfaction may be given in evi- 
dence under the general issue in assumpsit, and in actions on the 
case; but in debt, covenant, and trespass, it must be specially 
pleaded. In England, since the late Rules, it must be specially 
pleaded in all cases.* 

§ SO. Parties to the accord. As to the parties to an accord^ 

limited, in Sibree v, Tripp, 15 M. & W, 23, to the naked case of the acceptance of a 
le3S sum in satisfaction of a greater. Thomas v, Heathom, 2 B. & C. 477 ; Pin- 
nel's Case, 5 Co. 117 ; Smith v. Brown, 8 Hawks, 580 ; Wilkinson v, Byers, 1 Ad. & 
El. 113, per Parke, J. ; Watkinson v, Inalesby, 6 Johns. 391, 392 ; Sejrmour v. Min- 
turn, 17 Johns. 169 ; Bateman v. Daniels, 4 Black f. 71. But payment and accep- 
tance of the principal sum in fuU, without interest, is sufficient. Johnston v, Brannan, 
5 Johns. 271. See Donohne v. Woodbury, 6 Cush. 148. 

» Kaye v, Waghome, 1 Taunt 428 ; Snow v. Franklin, Lutw. 108 ; Smith v. 
Brown, 3 Hawks, 580 ; Harper v. Hampton, 1 H. & J. 675 ; Batchelder v. Sturgis, 
3 Cush. 203. 

« Blake's Case, 6 Co. 48 ; Neal v. Sheffield, Yelv. 192 ; s. c. Cro. Jac. 254 ; Story's 
Plead. 167, n.; Preston v. Christmas, 2 Wills. 86 ; Strang v. Holmes, 7 Cow. 224. 

» Vedder v, Vedder, 1 Den. 257. 

* Chitty on PI. 418, 426. 429, 482. 441 ; Bird v. Randall, 8 Burr. 1353 ; Chitty'a 
Prec. 477, 478 ; Weston v. Foster, 2 Binff. N. C. 693 ; 1 Stephen's Nisi Prius, 391. 
Where the plaintiff, in an action of slander, agreed to waive the action, in considera^ 
tion that the defendant would destroy certain writings relative to the charge, and he 
accordingly destroyed them ; this was held admissible, under the general issue, as an 
evidence of accord and satidaction. Lane v, Applegate, 1 Stark. 97. 



PABT IV.] ACCORD AND SATISPACTION. 27 

proof of an accord and satisfaction made by one of several joint 
obligors, or joint trespassers, is good and available to all.^ So, 
if it is made to one of several plaintiffs, though no authority 
appear from the others to make the agreement.^ If the action is 
for an act done by the defendant as the servant of another, an 
accord and satisfaction by the latter is a good defence.^ And as 
to the 9ubjectrmatter^ it is not necessary that it proceed directly 
from the defendant ; the obligation or security of a third person 
who is sui Juris is sufficient,^ if it be accepted in satisfaction of the 
whole amount, and not of a part only,^ though it may be of a less 
amount than was actually due.^(a) It is well settled that an 
accord alone, not executed, is no bar to an action for a pre-exist- 
ing demand. (() And the rule is equally clear that the person 
who is to be discharged is bound to do the act which is to dis- 
charge him, and not the other party.^ 

§ 81. Aooord with tender of aatisfaotion. Whether an accord 
with a tender of satitfaction is sufficient without acceptance is a 
point upon which the authorities are not agreed. It is, however, 
perfectly clear, that a mere agreement to accept a less sum in 
composition of a debt is not binding, and cannot be set up in bar 
of an action upon the original contract.^ Thus, where an agree- 
ment was made between a debtor and his creditors, that the latter 
should accept Give shillings and sixpence in the pound in full sat- 
isfaction of their respective debts, which sum was tendered and 
refused, it was held, that this constituted no bar to an action for 

1 Strang v. Holroes, 7 Cow. 224 ; Ruble v. Turner, 2 Hen. & M. 88. If several 
tortfeasors are joinUv sued, and a sum of money is accepted from one of them, and the 
action is thereupon dropp^, this may be shown as a full satisfaction in bar of a subse- 
quent action against the others. Dufresne v. Hutchinson, 8 Taunt 117. 

* Wallace v. Kelsall, 7 M. & W. 264. But if the payment be to one of the plaintiffs 
for his part only of the damages, it is no bar to the action. Clark v. Dmsmore, 
5 N. H. 186. 

* Thurman v. Wild, 11 Ad. & El. 468. 

* Eearslake v. Morgan, 6 T. R, 618 ; Booth v. Smith, 8 Wend. 66 ; Wentworth v. 
Wentworth, 6 N. H. 410 ; Bullen v. M'Gillicuddy, '2 Dana, 90. 

» Walker v. Seaborne, 1 Taunt. 626 ; Gabriel v. Dresser, 29 Eng. Law & Eq. 266. 

* Steinman v. Magnus, 11 East, 890 ; Lewis v. Jones, 4 B. & C. 606, 618 ; Reay v. 
White, 1 C. & M. 748 ; Cranley v. Hillary, 2 M. & S. 120. 

f Cranley v. Hillary, 2 M. & 8. 120, 122. 

" Cumber v. Wane, 1 Stra. 426 ; 1 Smith's Leading Cases, p. 146 (Am. ed.) ; 43 
Law Lib. 249-263. 

(a) This is true also of the check of partial satisfaction, he should put in some 
a third person. Guild v. Butler, 127 evidence that the accord has not been fully 
Mass. 886 ; KeUogg v, Richards, 14 Wend, satisfied, in order to avoid its operation as 
(N. Y.) 116. a bar to his suit Brovnoing v. Grouse, 48 

(b) If the plaintiff, in putting in his Mich. 489. 
own case, is obuged to prove an accord and 



28 LAW OP EVIDENCE. [PABT IV. 

the whole debt, for it was without consideration ; though it was 
admitted that had the debtor assigned his effects to a trustee^ 
under an agreement for this pnrpose, it would have constituted a 
good consideration, and would have been valid.^ So, where the 
agreement was to receive part of the debt in money and the resi- 
due in specific articles, no tender of the latter being averred, 
though it was alleged that the defendant was always ready to per- 
form, the plea was held bad, the accord being only executory.* 
But whether, where the agreement is for the performance of some 
^collateral act, and is upon sufficient consideration, a tender of per- 
formance is equivalent to a satisfaction, seems still to be an open 
question; though the weight of authority is in the affirmative. 
In one case, which was very fully considered, it was laid down as 
a rule warranted by the authorities, that a contract or agreement 
which will afford a complete recompense to a party for an original 
demand ought to be received, as a substitute and satisfaction for 
such demand, and is sufficient evidence to support a plea of accord 
and satisfaction.^ Therefore, where the holder of a promissory 
note agreed in writing with the indorser, to receive payment in 
coals at a stipulated price, and they were tendered accordingly 
but refused, the agreement and tender were held to be a sufficient 
accord and satisfaction to bar an action on the note> So, where 
a man's creditors agreed to take a composition on their respectiye 
debts, to be secured partly by the acceptances of a third person 
and partly by his own notes, and to execute a composition-deed 
containing a clause of release ; it was held by Lord Ellenborough, 
that an action for the original debt could not be maintained by a 
creditor, who had promised to come in under the agreement, to 
whom the acceptances and notes were regularly tendered, and who 
refused to execute the composition-deed after it had been executed 

1 Heathcote v. Crookshanks, 2 T. R. 24. To the same effect are TassaU v. Shane, 
Cro. £1. 193 ; Balston v, Baxter, Id. 304 ; Clark v. Dinamore, 5 N. H. 136 ; Lynn v. 
Bruce, 2 H. Bl. 317. 

3 Bayne v. Orton, Cro. El. 805 ; James v, Dayid, 5 T. B. 141. 

* Coit V, Houston, 3 Johns. Cas. 249, per Thompson, J.; Case «. Barber, T. Baym. 
450 ; 1 Com. Dig. Accord, B. 4. The latter case of ABen v. Harris, 1 Ld. Raym. 122, 
that an accord upon mutual promises is not binding, because no action lies upon mu- 
tual promises, admits the general doctrine of the text, though it differs in its applica- 
tion. The same is true of Preston v. Christmas, 2 Wils. 86. But the doctrine in the 
text is fully supported by the decision in Cartwright v. Cooke, 8 B. & Ad. 701. See 
also Good V. Cheeseman, 2 B. & Ad. 328, 835. Sed vid. Bayley v, Homan, 8 Bing. 
N. C. 916, per Tindal, C. J. 

^ Coit V. Houston, 8 Johns. Cas. 248. The same principle seems to have been 
conceded by Ashhurst and Grose, JJ., in James v. David, 5 T. R. 141. 



PABT IV.] ACCOBD AND SATISFACTION. 29 

by all the other creditors ; the learned judge remarking, that a 
party should not be permitted to say there is no satisfaction to 
whom satisfaction has been tendered^ according to the terms of the 
accord.^ But it has since been held in this country, that a readi- 
ness to perform a collateral agreement is not to be taken for 
a performance, or as the satisfaction required by law.^(a) 

§ 82. Payment and acceptance. If the defendant pleads pay- 
ment and acceptaiice of a sum of money in satisfaction, and the 
plaintiff replies, traversing the acceptance in satisfaction, this puts 
both facts in issue; and the defendant must therefore prove the 
payment as well as the acceptance in satisfaction.^ 

§ 38. Proof by lapse of time. The plea of accord and satisfac- 
tion may often be proved by the lapse of time and acquiescence of 
the parties. Thus, it has been held, in an action upon a covenant 
against incumbrances, that the lapse of twenty years after dam- 
ages sustained by the breach, unless rebutted by other evidence, 
was sufficient proof of the plea.^ 

^ Bradley v. Gregory, 2 Campb. 888. And see, accordingly, Evans v, Powis, 11 
Jnr. 1048. 

^ Russell V. Lytle, 6 Wend. 890. But in this case the decision of the same court 
is Goit V. Houston, many years before, was not cited or adverted to, and the question 
was decided upon the earliest authorities. Yet, in several of these, the reason why an 
accord without satisfaction is not binding is stated to be, that the plaintiff has no 
remedy upon the accord ; thus tacitly seeming to admit that, where there is such 
remedy, the accord, with a tender of satisfaction, is sufficient. 1 Roll. Abr. tit. 
Accord, pi. 11-18 ; Allen v. Harris, 1 Ld. Raym. 122 ; Brook. Abr. tit. Accord, &c., 

E' L 6 ; 16 Ed. IV. 8, pi. 6. So in Lynn v. Bruce, 2 H. Bl. 817. See, however, Haw- 
vj V. Foote, 19 Wend. 516, where an agreement to accept a collaterol thing in satis- 
faction, with a tender and refusal, was held not a good bar. 

* Ridley t>. Tindall, 7 Ad. & £1. 184. « Jenkins v. Hopkins, 9 Pick. 548. 

(a) The conrse of decision seems to Litchfield, 106 Mass. 84 ; Pettis v. Ray, 

tend towards holding part performance of 12 R. I. 844. The case of Goodrich v. 

an accord, «rith readiness to complete the Stanley, 24 Conn. 618, supports the view 

performance or a tender of full perlormance, suggested bv Mr. Greenleaf m n. 2, that if 

not a valid accord and satisfaction. The the accord is of such a nature as to admit 

court of appeals in New York, in Kromer a snit upon it, i. e. if there is a promise 

V, Heim, 75 N. Y. 574, cite the New York founded on a good consideration, then the 

cases referred to by the author in note (2) accord itself, averred with an allegation of 

and the later case of Tilton v. Alcott, 16 readiness to perform, will be a go(xl nlea of 

Barb. 598, with approval, and sustain the accord and satisfaction. For a full dis- 

principle. So in Heam v. Kiehl, 88 Pa. cussion of this point see Babeock v. Haw- 

St. 147 ; White v. Gray, 68 Me. 579 ; kins, 28 Vt. 561. 
Yooiig V. Jones, 64 Me. 568 ; Clifton v. 



&0 LAW OP EVIDENCE. [PABT IV. 



ACCOUNT. 

§ 34. Action not now nsuai. The remedy at common law, by 
the action of account, has fallen into disuse in most of the 
United States ; suits by bill in chancery or by action of assumpsit 
being resorted to in its stead. It is, however, a legal remedy 
where not abolished by statute, (a) 

§ 35. "When it Ues. This action lies at common law between mer- 
chants, naming them such, between whom there was privity ; also 
against a guardian in socage by the heir ; and against bailiffs and 
receivers.* (6) And by statutes it lies between joint-tenants and 
tenants in common and their personal representatives, and by 
and against the executors and administrators of those who were 
liable to this action.^ But it does not lie against an infant, nor 
against a wrong-doer, or any other person where no privity 
exists.^ 

§ 36. Against reoeiver. Where the action is against one as re- 

1 Com. Dig. AcGompt, A, B. 

> 13 Edw. I. c. 23 ; 25 Edw. III. c. 5 ; 31 Edw. III. c. 11 ; 4 & 5 Anne, c. 16 ; 
Sturton V, Richardson, 18 M. & W. 17. 

• Co. Lit. .172 a; Marker ». Whitaker, 6 Watte, 474. 

(a) The basis of the equitable jarisdic- Tenny, 31 Yt. 401, that the neglect of the 

tlon ia a biU for accounting may be either tenant to properly cultivate the crops, 

that the parties are so related that a suit whereby they were injured, and thus tne 

at law will not give an adequate remedy, joint profits in the products of the farm 

as when they are principal and agent, or were diminished, was proper to be adjusted 

partners. Harvey v. Varaey, 98 Mass. in an action of account. But breaches of 

118; Dunham v. Presby, 120 Mass. 285. contract on either part, whereby the mak- 

Or that the accounts are so complicated ing of profits has been prevented meroly, 

that a jury could not examine them with we think need not necessarily be brought 

accuracy. Farmers', &c. Bank v. Polk, into the account, and may be sued for 

1 Del. Ch. 167; Carter v. Bailey, 64 Me. independently." Poland, C. J. La Point 

458. V. Scott, 86 Vt. 609. 

(fi) "It has been settled by rented The action of acooant does not lie in 
decisions in this State, that the action of favor of one partner against another who 
account is the proper remedy for the has received nothing and has no account 
adjustment of controversies growing out to render. Spear v. Newell, 2 Paine, 
of the common mode of leasing farms, C. C. 267. At common law the action 
where the products and profits are to be of account would only lie between two 
divided between landlord and tenant. And merchants. Appleby v. Brown, 24 K. Y. 
a disposition has been shown to require 143. It will not lie at common law upon 
everything growing out of such a con- a mere ecjuitable title of tenancy in corn- 
tract, affecting the proper settlement and mon or joint tenancy, the object being 
division, to be brought into such account- to recover rents and profits. Carney «. 
ing. It was decided in Cilley, Adm'r v. Irving, 81 Yt. 606. 



PABT IV.] ACCOUNT. 81 

ceiyer, it is necessary to set forth by whose hands the defendant 
received the money ; but where he is charged as bailiff it is not 
necessary.^ It seems he may be charged in both capacities, in the 
same action.^ But where one tenant in common sues his co-ten- 
ant in account) charging him as bailiff under the statute of 
Anne, it must be alleged in the declaration, and of course be 
proved, that he has received more than his share of the profits.^ 
And the receipt, by one co-tenant, of the whole profits is prima 
facie a receipt of more than his share, and will render him liable 
to account to his companion as bailiff, though, on taking the ac- 
count, it may turn out that he is a creditor.^ The pleas in bar 
appropriate to this action are, that he never was bailiff, or guar- 
dian, or receiver ; or that he has fully accounted either to the 

I Co. lit 172 a; Walker v. Holyday, 1 Com. 272 ; Bull. N. P. 127 ; Bishop v. 
Eagle, 11 Mod. 186 ; Jordan v, WQkins, 2 Wash. C. C. 482. For, where the money 
was received of the plaintiff, the defendant might have waged his law. Hodsden v. 
Harridge, 2 Saund. 65. Nor is it necessary where the action is between merchants. 
Moore v. Wilson, 2 Chipm. 91. « 

« Wells V. Some, Cro. Car. 240 ; 1 Roll. Abr. 119, pi. 10 ; 1 Com. Dig. Accompt, 
E, 2. The declaration against a bailiff is as follows : " In a plea of account ; for that 
the said D. was bailiff to the plaintiff of one messuage, with the appurtenances in 

, from to , and during that time had the care and management thereof, 

; and sufficient power to improve and demise the same, and to collect and receive the 
iaemes, rents, and profits of the said premises to the use of the plaintiff ; yet, though 
requested, the said D. bath never rendered to the plaintiff his reasonable account of 
said moneys, rents, and profits, nor of his doings in the premises, bat refuses so to 
do.'* The form of chaiging one as receiver is thus : '* For that the said D. was from 

to the plaintiffs receiver, and as such had received of the moneys of the 

plaintiff by the hands of one £. dollars, and by the hands of one F. dollars, 

to render his reasonable account thereof on demand. Yet," &c. 

* Sturton V. Richardson, 13 M. & W. 17. Whether a special request and the 
lapse of reasonable time should be alleged, qtuere. Ibid. This provision of the stat- 
ute of Anne (i Anne, c 16, § 27, allowing an action of account where one tenant in 
common has received more than his just share) applies only to cases where one tenant 
in common receives the money or 8omethini( else from another person to which both 
co-tenants are entitled, simply by reason of their being tenants in common, and in 
proportion to their interest as such, and of which the one receives and keeps more 
than his just share according to that proportion. The statute, therefore, includes all 
cases where two are tenants of land leasea to a third party at a rent payable to each, 
and where the one receives the whole, or more than his proportionate snare according 
to his interest in the subject of the tenancy. There is no difficulty in ascertaining the 
share of each, and determining when one has received more than his just share ; and 
if he has, he becomes as such receiver, in that case, the bailiff of the other, and must 
account. But when we seek to extend the meaning of the statute beyond the ordi- 
nary meaning of its words, and to apply it to cases m which one has enjoyed more of 
the benefit of the subject, or made more by its occupation than the other, we have 
insuperable difficulties to encounter. There are obviously many cases in which a ten- 
ant in common may occupy and enjoy the land or other subject of tenancy in common 
solely, and have all the advantage to be derived from it, and yet it would be most un- 
just to make him pay anything. And there are many cases where profits are made 
and are actually taken by one co-tenant, yet it is impossible to say that he has received 
more than comes to his just share. Examples of both classes of cases are given. See 
Henderson v. Eason, 9 Eng. Law k Eq. 337. 

^ Eason «. Henderson, 12 Ad. k £1. n. a. 986 ; 13 Jur. 150. 



82 LAW OP EVIDBNCB. [PABT IV. 

plaintiff or before auditors ; or that the money was delivered to 
him for a specific purpose, which has been accomplished.^ What- 
ever admits the defendant once liable to account, such as pay- 
ment over by the plaintiff's order, &c., tliough it goes in dis- 
charge, should be pleaded before the auditors and not in bar of 
the action; excepting the pleas of /release, jE7Z^ne camputatfit^ and 
the statute of limitations.^ (a) 

§ 37. What evidence supports. In this case, as in other cases, 
the evidence on the part of the plaintiff must support the material 
averments in the declaration.^ There must be evidence of a 
privity, either by contract, express or implied,* or bylaw; and 
if the defendant is charged as bailiff, or guardian, or receiver, or 
tenant in common, or joint tenant, he must be proved to have 
acted in the specific character charged ; for the measure of their 
liability is different; tenants in common and joint tenants being 
answerable for what they have actually received, without deduct- 
ing costs and expenses; receivers being charged in the same 
manner, but allowed costs and expenses in special cases in favor 
of trade ; and guardians and bailiffs being held to account for 
what they might with proper diligence have received, deducting 
reasonable costs and expenses.^ The property in the money de- 
manded or goods bailed must be precisely stated and proved as 
laid, it being a material allegation. If, therefore, the declaration 

1 1 Com. Dig. Acoompt, £, 8, 4, 6. In tliese caaea» the fonn of pleading is : "Thut 
he never was hailiff of the premises, goods, and chattels aforesaid, to render an ac- 
count thereof to the said plaintiff in manner and form " (&c.) ; or, " that he never 
was receiver of the moneys of the plaintiff in manner" (Ac.) ; or, "that, after the 

time during which (&c.), to wit, on , he fuUy accounted with the plaintiff of and 

concerning the said premises, rents (&c.), for the time he was so hailiff as aforesaid ; ** 
or, "of and concerning the moneys so by him received, as aforesaid ; " or, "fully ac- 
counted before A and B, auditors assigned by the court here to audit the account 
aforesaid," &c. Story's Pleadings, 71, 72 ; 8 Cliitty's PI. 1197-1289. 

> 1 Com. Dig. Accompt, £, 6 ; Godfrey v. Saunders, 8 Wils. 94 ; Bredin v. Divin, 
2 Watts, 15. 

* An I U is evidence of an account stated between the parties. Fessenmayer v. 
Adcock, 16 M. & W. 449. 

* King of France v. Morris, cited 8 Yeatea, 261 ; Co. Lit. 172 a. 

* 1 Sslw. N. P. 1-8 ; Co. Lit 172 a; Saroentv. Parsons, 12 Mass. 149 ; Griffith 
V. WiUing, 8 Binn. 317 ; Wheeler v. Home, Willes, 208 ; Joixian v, Wilkins, 2 Wash. 
C. C. 485 ; Stat. 4 & 5 Anne, c. 27 ; Irvine v. Hanlin, 10 S. & R. 221. 

(a) And whatever constitutes a bar to make out a valid defence, but does not in- 

the action must be pleaded in bar before sist on a jury trial on those facts, and 

the interlocutory judgment to account ; allows the case to be referred to an auditor 

such matter cannot oe pleaded before to take the account, he waives the defence 

the auditor, e. g. Statute of Limitations, he has set up, and cannot insist on it after 

Closson V, Means, 40 Me. 887; Black v. the account nas been taken. Protchettv. 

Nichols, 68 Me. 227. If the defendant, Schaefer, II Phila. (Pa.) 166. 
by his answer, sets up facts which would 



PABT IV.] ACCOUNT. 88 

is for the money of the plaintiff, and the proof is of money be- 
longing to the plaintiff and others as partners, the declaration 
is not supported.^ And if there are several defendants, they must 
be proved to be jointly and not severally liable.^ A special de- 
mand to account is not necessary to be proved.^ 

§ 38. Fleas. If the plea is that the defendant accoimted be- 
fore two, it will be supported by evidence that he accounted before 
one of them only ; for the accounting is the substance.^ In gen- 
eral, to support the plea of plene computamt, it is necessary for the 
defendant to show a balance, ascertained and agreed upon.^ But 
if the course of dealing is such as to call for daily accounts and 
payments by the defendant, as where the demand is against a 
servant for the proceeds of daily petty sales, of which it is not 
the course to take written vouchers, it will be presumed that the 
defendant has accounted ; and the burden of proof will lie on the 
plaintiff to show that this ordinary course of dealing has been 
violated.^ If the contract was upon the consignment of goods to 
the defendant, that he should account for the sales and return the 
goods which should remain unsold, the plea of plene computavit 
will not be maintained by evidence of having accounted for the 
sales, unless it be also proved that the goods unsold have been 
returned.^ This plea, and that of ne ungues bailiff, i&c, may be 
pleaded together ; and the plea does not in that case admit the 
liability of the defendant to account.^ 

§ 39. Judgment and reference. After a judgment quod computet^ 
and a reference to auditors, all articles of account between the 
parties incurred since the commencement of the suit, are to be 
included by the auditors, and the whole is to be brought down to 
the time when they make an end of the account.^ But after such 
judgment, rendered upon confession against a receiver, if the 
auditors certify issues to be tried, the plaintiff, upon the trial of 
such issues, cannot give evidence of moneys received by the de- 
fendant during any other period than that described in the dec- 

1 Jordan v. Wilkins, 2 Wash. C. C. 482. 
s Whelen v. Watmough, 15 S. & R. 158. 

* Stni^es 9. Bnah, 6 Day, 442. « Bull N. P. 127. 

* Baxter v. Hozier, 5 Bing. N. C. 288. 

* Evans v. Birch, 8 Campb. 10. ^ Read v. Bertrand, 4 Wash. 556. 
B Whelen v. Watmoagh, 15 S. & R. 158. 

* Robmson v. Bland, 2 Burr. 1086 ; Conscher v. Toulam, 4 Wash. 442. The re- 
port of the anditor will not be set aside on the ground of error in the account, except 
on very clear and satisfactory proof of the errors complained of. Stehman's Appeal, 
5 Bazr, 418. 

TOL. IJ. 8 



84 LAW OP EVIDENCE. [PART IV. 

laration.^ The judgment quod eamputetj however, does not con- 
clude tiie defendant as to the precise sums or times mentioned in 
the declaration ; but the account is to be taken according to the 
truth of the matter, without regard to the verdict.^ 

1 Sweigart v. Lowmarter, 14 S. & R. 200. 

s Newbold V, Sims, 2 S. & R. 817 ; James v. Brown, 1 DalL 889 ; Stoiges v. Bosh, 
5 Day, 462. 



PART IV.] ADULTERT. 86 



ADULTERY. 

§ 40. Adnltezy, how proved. The proof of this crime is the 
same, whether the issue' arises in an indictment, a libel for di- 
vorce, or an action on the case, (a) The nature of the evidence 
which is considered sufficient to establish the charge before any 
tribunal has been clearly expounded by Lord Stowell, and is best 
stated in his own language. '^ It is a fundamental rule," he ob- 
serves, " that it is not necessary to prove the direct fact of adul- 
tery ; because if it were otherwise, there is not one case in a 
hundred in which that proof would be attainable; it is very 
rarely, indeed, that the parties are surprised in the direct fact of 
adultery. In every case, almost, the fact is inferred from circum- 
stances, that lead to it by fair inference as a necessary conclusion ; 
and unless this were the case, and unless this were so held, no 
protection whatever could be given to marital rights. What are 
the circumstances which lead to such a conclusion cannot be laid 
down universally, though many of them, of a more obvious 
nature and of more frequent occurrence, are to be found in the 
ancient books ; at the same time, it is impossible to indicate them 
universally, because they may be infinitely diversified by the 
situation and character of the parties, by the state of general 
manners, and by numy other incidental circumstances, apparently 
slight and delicate in themselves, but which may have most im- 

(a) This statement refers to the kind is not required to prove it beyond a rea- 

of evidence by which the fact of adultery sonable doubt, as in an indictment for a 

is proved, for it is proved by the same criminal offence. Chestnut v. Chestnut, 

kind of evidence in all cases. In regard 88 111. 648. The rules governing the ad- 

to the quantity of evidence required, how- missiMLUy of evidence, both oral and docu- 

ever, the rule differs where the issue is mentary, which is offered for the purpose 

raised on an indictment, from that where of proving the act of adultery are the same 

it arises in a libel for divorce, or an action in criminal as civil cases ; the difference 

on the case. On the trial of an indict- between the two classes of cases is in res- 

ment, the act of adultory must be estab- pect to the measure and weight of the evi- 

Ushedby proof beyond a reasonable doubt; denoe addressed to the jury on the mat- 

while the role as to Ihe quantity of evi- ters on which they are to pass. On the 

dence required to prove the act of adultery question whether a document is admissible 

when it is relied on as a ground of divorce, as evidence to go to the jury in a prosecu- 

or to support an action on the case, is that tion for adultery, the court determines it by 

the party relyinj; on imch act should prove the same rules as when the question is made 

it by a preponderance of the evidence. He in a civU case. State v. Potter, 52 Vt. 33. 



86 LAW OP EVIDENCE. [PART IV. 

portant bearings in decisions upon the particular case. The only 
general rule that can be laid down upon the subject is, that the 
circumstances must be such as would lead the guarded discretion 
of a reasonable and just man to the conclusion ; for it is not to 
lead a rash and intemperate judgment moving upon appearances, 
that are equally capable of two interpretations, — neither is it to 
be a matter of artificial reasoning, judging upon such things 
differently from what would strike the careful and cautious con- 
sideration of a discreet man. The facts are not of a technical 
nature: they are facts determinable upon common grounds of 
reason; and courts of justice would wander very much from 
their proper office of giving protection to the rights of mankind, 
if they let themselves loose to subtleties, and remote and artificial 
reasonings upon such subjects. Upon such subjects the rational 
and the legal interpretation must be the same." ^ (a) 

§ 41. Same subjoot The rule has been elsewhere more briefly 
stated to require, that there be such proximate circumstances 
proved, as by former decisions, or in their own nature and ten- 
dency, satisfy the legal conviction of the court that the criminal 
act has been committed.^ And therefore it has been held, that 

^ LovedeD v. Loveden, 2 Hagg. Con. 2, 8. The husband's remedy against the 
seducer of his wife may be in trespass, or by an action on tiie case. The latter is pref- 
erable, where there is any doubt whether the fact of adultery can be proved, and 
there is a ground of action for enticing away or harboring the wife without the hus- 
band's consent ; because a connt for the latter offence may be joined with the former ; 
and a count in troyer for wearing-apparel, &c, may also be added. James v. Bidding- 
ton, 6 C. & P. 589. 

The declaration for seduction may be as foUows : " For that whereas the defendant, 
contriving and wronfffuUy intending to iigure the plaintiff, and to deprive him of the 
comfort, society, aid, and assistance of S., the wife of ^e plaintiff, and to alienate 

and destroy her affection for him, heretofore, to wit, on '* [inserting the day on 

or near which the first act of adultery can be proved to have been committed^ 
"and on divers other days and times after that day and before the commencement 
of this suit, wrongfully and wickedly debauched and carnally knew the said S., she 
being then and ever since the wife of the plaintiff ; by means whereof the affection 
of the said S., for the plaintiff was wholly alienated and destroyed ; and by reason of 
the premises the plaintiff has wholly lost the comfort, society, aid, and assistance 
of his said wife, which during all the time aforesaid he otherwise might and ought to 
have had." To the damage, &c. 

^ Williams v. Williams, 1 Hagg. Con. 299; Dunham v. Dunham, 6 Law Reporter, 141. 

(a) In proving adultery by circum- carried on a clandestine correspondence, 

stances, two facts must be established, a have made strong expressions of at- 

criminal disposition or desire in the mind tachment, and had secret interviews, 

of both the defendant and the partieepa will furnish very strong evidence of crim- 

criminiSf and an opportunity to commit inal inclination and desire. 2 Bishop, 

the crime. When Doth these are shown, Marr. & Div. § 616, quoting the language 

Siilt is necessarily inferred. 2 Bishop, of Shaw, C. J., in Dunham v. Dunham, 6 

arr. & Div. § 619; Black v. Black, 30 Law Rep. 189, p. 141. 
K. J. £q. 228. Proof that parties have 



PABT IV.] ADULTERY. 87 

general cohabitation exclnded the necessity of proof of particular 
facts.^ (a) Ordinarily, it is not necessary to prove the fact to 
have been committed at any particular or certain time or place. 
It will be sufficient, if the circumstances are such as to lead the 
court, travelling with every necessary caution to this conclusion, 
which it has often drawn between persons living in the same 
house, though not seen in the same bed or in any equivocal situ- 
ation. It will neither be misled by equivocal appearances on the 
one hand, nor, on the other, will it suffer the object of the law to 
be eluded by any combination of parties to keep without the reach 
of direct and positive proof.* And in examining the proofs, they 
will not be taken insulated and detached ; but the whole will be 
taken together.* Yet, in order to infer adultery from general con- 
duct, it seems necessary that a mspido violenta should be created.^ 
But the adulterous disposition of the parties being once established, 
the crime may be inferred from their afterwards being discovered 
together in a bedchamber, under circumstances authorizing such 
inference.* 

§ 42. Opinion. Belief The nature of this crime has occasioned 
a slight departure, at least in the ecclesiastical courts, from the 
general rule of evidence as to matters of opinion ; it being the 
course to interrogate the witnesses who speak of the behavior of 
the parties, as to their impression and belief, whether the crime 
has been committed or not. For it is said that, in cases of this 
peculiar character, the court, though it does not rely on the opin- 
ions of the witnesses, yet has a right to know their impression and 
belief.^ On the other hand, in the ecclesiastical courts, it is re- 

^ Cadogan v. Cadogan, 2 Tlagg. Con. i, n. ; Ratton v, Ruttomy Id. 6, n. 
' Burgess v. Bui^gess, 2 Hs^. Con. 226, 227 ; Hammerton v, Hammerton, 2 
Hagg. Eccl. 14 ; Rix v. Rix, S Hagg. Eccl. 74 ; Com. v, Pitainger, 110 Maaa. 101. 
' Durant v. Dnrant, 1 Hagg. Eccl. 748. 

* Such seems to hare heen the riew of Lord Stowell in Loveden v. Loveden, 2 Hagg. 
Con. 7, 8, 9, 16, 17 ; and in Burgess v. Burgee, Id. 227, 228. 

^ Soilleanx V. SoUleanx, 1 Hagg. Con. 873; Van £pp6 v. Van Epps, 6 Barb. S. C. 820. 

* Crewe v. Crewe, 8 Hagg. Eccl. 128. 

(a) The cohabitation which excludes shown. Vice Chancellor Edwards said he 

the necessity of proof of particular facts would not grant a decree in such a case 

is cohabitation as man and wife. Pollock upon coigectures, and that he must have 

V. PoUock, 71 N. Y. 187. In Hart v, stronger proof before he made a decree. 

Hart, 2 Edw. Ch. fN. Y.) 207, it was This ca-ne was questioned by Mr. Bishop 

prored that the husoaiid was living sep- in the fourth edition of his work on Mar- 

arate from his wife, and had a woman re- riage & Divorce, § 646, but the unfavorable 

aiding with him. No other cohabitation, comment was suppressed in the fifth edi- 

i, e. no cohabitation in the technical mean- tion, § 628. See sixth edition, § 628. 
ing of living together as man and wife, was 



38 LAW OP EYIDBNCB. [PABT IV. 

luctantlj held that the testimony of one witness alone, though 
believed to be true, is not legally sufSicient to establish the charge 
of adultery.^ But in the courts of common law in America, no 
such rule is known to have been adopted, even in cases of an 
ecclesiastical nature.' 

§ 43. FreBomptioii of oontinned oriminal Interoonne, when. 
Where criminal intercourse is once shown, it must be presumed^ 
if the parties are still living under the same roof, that it still cotir 
tinueSy notwithstanding those who dwell under the same roof are 
not prepared to depose to that fact.^ The circumstance, that wit- 
nesses hesitate and pause about drawing that conclusion, will not 
prevent the court, representing the law, from drawing the inference 
to which the proximate acts proved unavoidably lead.^ 

§ 44. Facta tending to prove adultery. Adultery of the wife 
may be proved by the birth of a child and non-access of the 
husband, he being out of the realm ; ^ and if adultery is alleged 
to have been continued for many years and with divers particular 
individuals, it is sufficient to prove a few of the facts, with identity 
of her person.^ Adultery of the husband^ on the other hand, may 
be proved by habits of adulterous intercourse, and by the birth, 
maintenance, and acknowledgment of a child.^ A married man 
going into a known brothel raises a suspicion of adultery, to be 
rebutted only by the very best evidence.® (a) His going there 
and remaining alone for some time in a room with a common 
prostitute, is sufficient proof of the crime.® (i) The circumstance 
of a woman going to such a place with a man, furnishes similar 

Evans v. Evans, 1 Rob. EccL 165 ; Simmons v, Simmons, 11 Jnr. 880. 
Ante, vol. I § 260. 
Turton v, Ttirton, 8 Hagg. EccL 350. 
Elwes V, Elwes, 1 Hacg. Con. 278. 
Richardson v. Richar^n, 1 "Hags, Eccl. 6. 
Ibid. 

D'Agiiilar v. D'Aguilar, 1 Hagff. Eccl. 777, n. 

Astley V, Astley, 1 Hagg. Ecd. 720 ; Loveden v. Loreden, 2 Hagg. Con. 24 ; 
Kenrick v. Kenrick, 4 HsAg. EccL 114, 124, 182. 
* Astley V. Astley, 1 l£igg. Eccl. 719. 

{a) Obviously, however, snch a visit is man raises the presumption of adultery, 
open to explanation, as it may be one of unless explained and rebutted by the 
nnilanthropy, or of accident, or even of character of the man ; and when char- 
lawful business which should not be con- acter is relied upon as a defence, and 
strued into an act of guilt. 2 Bishop, fails in that respect, the presumption is 
Marr. & Div. § 626. So held in Latham increased. Cioca v. Ciocd, 26 Eng. Law 
V, Latham, 80 Oratt. (Va.) 807. The & Eq. 604. 
consorting with prostitutes by a married {t) Daily v. Daily, 64 111. 829. 



PABT IV.] ^ ADULTEBT. 89 

proof of adultery.^ The venereal disease, long after marriage, is 
prima facie evidence of this crime.* (a) 

§ 45. ConfaMioii. As to proof hj the eat^ession of the party, 
no difference of principle is perceived between this crime and any 
other. It has already been shown that a deliberate and voluntary 
eonfesnon of guilt is among the most weighty and effectual proofs 
in the law.' (i) Where the consequences of the confession are 
altogether against the party confessing, there is no difficulty in 
taking it as indubitable truth, (c) But where these consequences 
are more than counterbalanced by incidental advantages, it is plain 
that they ought to be rejected. In suits between husband and 
wife, where the principal object is separation, these countervail* 
ing advantages are obvious, and the danger of collusion between 
the parties is great. This species of evidence, therefore, though 
not inadmissible, is regarded in such cases with great distrust, and 
is on all occasions to be most accurately weighed.^ (d) And it has 
been held, as ilie more rational doctrine, that confession, proved 
to the satisfaction of the court to be perfectly free from all suspi- 
cion of a collusive purpose, though it may be sufficient to found a 
decree of divorce a mensa et thoroj is not sufficient to authorize a 
divorce from the bonds of matrimony, so as to enable a party to fly 
to other connections.^ It is never admitted alone for this purpose ; ^ 

1 Eliot V. Eliot, cited 1 Hagg. Con. 802 ; Williams v, Williams, Id. 808. 
s Darant v. Dnrant, 1 Hag^. £cc. 767. 

* Ante, Tol. L §$ 214-219; Mortimer v, Mortimer, 2 Hagg. Con. 815. 
« Williams v. Williams, 1 Hagg. Con. 804. 

^ Mortimer v. Mortimer, 2 Hagg. Con. 816. 

* Searle v. Price, 2 Hagg. Con. 189 ; Mortimer v. Mortimer, Id. 816 ; Betts v. 
Betts, 1 Johns. Ch. 197 ; Baxter v, Baxter, 1 Mass. 846 ; Holland v. Holland, 2 Mass. 
154 ; Doe v. Roe, 1 Johns. Cas. 25. But where the whole evidence was such as utterly 
to exclude all suspicion of collusion, and to establish the contrary, a divorce has been 
decreed upon confession alone. Yance v. Vance, 8 GreenL 182 ; Owen v, Owen, 4 
Hagg. Eod. 261. 

(a) 2 Bishop, Marr. and Div. $ 682 etteq. of his subsequent acts making it probable 

(6) 2 Bishop, Marr. andDiv. c. 16; Wil- that he did commit it. Com. v, Tarr, 4 

liaros 9. Williams, 85 L. J. Mat. Caa. 8. Allen (Mass.), 815. 

(e) Thus, where a man indicted %z {d) So it has been held that confessions, 

adnltery said that he had left a wife in by letter or otherwise, ought to be corrob- 

England, and had a wife and child at the orated by circumstances tending to show 

time of the indictment, in Massachusetts, guilt, as that the wife is living apart from 

this was held sufficient evidence that he the husbuid (Lord Cloncurry's Case, Macq. 

had adulterous sexual intercourse with the Pr. in H. of L 606), or that she was living 

woman in Massachusetts. Com. v. Holt, with a paramour, and meanwhile was 

121 Mass. 61. grossly deceiving her husband (Miller's 

On an indictment for adultery, the Case, Id. 620). See also Doyly's Case, Id. 

crime may be proved by the direct confes- 654; Dundaa' Case, Id. 610; Grant v. 

sion of the defendant, corroborated by evi- Grant, 2 Curt 16; Lord Ellenborough's 

dence of an opportunity to commit i^ and Case, Macq. Pr. in H. of L. 655. 



40 LAW OP EVTDBNCB. ^ [PART IV. 

nor must it be ambiguous.^ But it need not refer to any par* 
ticular time or place ; it will be applied to all times and places, 
at which it appears probable, from the evidence, that the fact may 
have been committed.^ And it is admissible, when made under 
apprehension of death, though it be afterwards retracted.* Where, 
in cross-libels for divorce a vinculo for adultery, each respondent 
pleaded in recrimination of the other, it has been held, that these 
pleas could not be received as mutual admissions of the facts 
articulated in the libels^ But the record of the conviction of the 
respondent, upon a previous indictment for that offence, has been 
held sufficient proof of the libel, both as to the marriage and the 
fact of adultery.^ 

§ 46. Faramonr'a testimony and oonfeMlons. The paramour is 
an admissible witness ; but, being particeps criminisy his evidence 
is but weak.^ (a) His confession may be used in evidence against 
her, if connected with some act of confession of her own, in the 
nature of a joint acknowledgment ; but independently and alone, 
it is inadmissible.^ (5) 

1 Williams v, Williams, 1 Hagg. Con. 804. 

' Burgess v. Burgess, 2 HaflK* Con. 227. 

s Mortimer v, Mortimer, 2 Hagg. Con. 817, 818. 

* Turner v. Turner, 3 Greenl. 898. 

^ Anderson v. Anderson, 4 Greenl. 100 ; Randall v. Bandall, Id. 826. The oonric- 
tion could not have been founded upon the testimony of the party offering it in evi- 
dence. 

^ Soilleauz v. Soilleanx, 1 Hagg. Con. 876 ; Croft v. Croft, 2 Ha^ff. EccL 818. 

7 Burgess v. Burgess, 2 Hagg. Con. 285, n. ; Derby v. Derby, 31 14. J. £q. 36. 

(a) State v. Colby, 51 Vt. 291. In feel bound to make one or two obsenra- 
Tumey v, Tumey, 4 Edw. Ch. (N. Y.) tions upon the subject of the employ- 
566, the court refused to grant a divorce ment of men of the class to which Shaw 
on the unsupported testimony of two pros- (a private detective) belongs. They may 
titutes. So, in Ginger v. Ginger, 84 L J. be very useful for some purposes, — they 
Mat. Cases, 9, where the petition was may be instrumental in detecting mal- 
supported only by the testimony of the practices which would otherwise remain 
alleged paramour, a woman of loose char- concealed, — but they are most danger- 
acter. See Brown v. Brown, 5 Mass. ous agents. Police detectives are most 
820. useful. They are employed in a govern- 

(b) Another class of evidence commonly ment establishment, they are responsible 
used to prove the crime of adnltenr is that taan official superior, they have no pecu- 
of hirecl pnvate detectives. The cred- niary interest in the result of their investi- 
ibility of such n witness, when he testifies gations beyond the wages which they 
to facts which he has observed, while he receive for the occupation that they follow, 
was in the employment of one of the par- and they may be and are constantly em- 
ties for such observation, must necessarily ployed not only with safety, but with 
be very slight, if his evidence stands alone benefit to the public. But when a man 
and is not corroborated by other direct sets up as a hired detective of supposed 
testimonv or by the circumstances of the delinquencies, when the amount of his pay 
case. The practice is well commented on depends on the extent of his employment 
by Sir Cresswell Cresswell, in Sopwith v. and the extent of his employment depends 
Sopwith, 4 Swab. & T. 243, p. 246. "I on the discoveries he is aole to make, then 



PABT lY.] ADULTERY. 41 

§ 47* Other acts of adultery admiaBible, when. Where the fact 
of adultery is alleged to have been committed within a limited 
period of time, it is not necessary that the evidence be confined 
to that period ; bnt proof of acts anterior to the time alleged may 
be adduced, in explanation of other acts of the like nature within 
that period. Thus, where the statute of limitations was pleaded, 
the plaintiff was permitted to begin with proof of acts of adultery 
committed more than six years preceding, as explanatory of acts 
of indecent familiarity within the time alleged.^ (a) So, where 
one act of adultery was proved by a witness, whose credibility the 
defendant attempted to impeach, evidence of prior acts of im- 
proper familiarity between the parties has been held admissible 
to corroborate the witness.^ But, where the charge is of one 
act of adultery only, in a single count, to which evidence has 
been given, the prosecutor is not permitted afterwards to intro- 
duce evidence of other acts, committed at different times and 
places.^ 

^ Duke of Norfolk v, Germaine, 12 Howeirs St. Tr. 929, 945. It has, however, 
been held, that the proof of acts within the period must first be adduced. Gardiner 
«. Madeira, 2 Yeates, 466. 

* Commonwealth v. Meriam, 14 Pick. 518 ; Com. v. Lahey, 14 Gray, 91. 

* Stante v. Pricket, 1 Campb. 473 ; Downes v. Skrymsher, 1 Brownl. 288 ; 19 R YI. 
47 ; State v. Bates, 10 Conn. 872. 

that man becomes a most dangerous instru- himself, and may be cross-examined on all 
ment." Such testimony is to be received facts relevant and material to the issue, 
with caution. Cf. Browning, Marr. & Div. and cannot refuse to testify to any facts 
p. 70, 71. which would be competent evidence in the 
In Massachusetts, by statute (Acts of case, if proved bv other witnesses. Com. 
1857, c 805), in all suits for divorce, v. Lannan, 13 Alien (Mass.)* 563. And if 
except those in which a divorce is sought one indicted for adultery becomes a wit- 
on the ground of alleged criminal conduct ness in his own behalf, he cannot object 
of either party, the parties may be per- to answer questions material to the trial 
mitted to testify in tneir own favor, and of the issue, on the ground that the an- 
may be called as witnesses by the opposite swers would tend to eliminate him. Com. 
party; but they shall not be allowed to v. Nichols, 114 Mass. 285. 
testify as to private conversations with (a) Com.t^. Horton, 2 Gray, 854; Com. 
each other. Under the English statute, v. Thrasher, 11 Gray, 458. In Thayer v, 
allowing a wife to testify for or against her Thayer, 101 Mass. Ill, other acts of adul- 
hnsband, she may, in an action against terv are held admissible, whether occurring 
the husband for necessaries supplied to aid be&re or after the act charged, for the pur- 
her, testify to her own adulteiy. Cooper pose of showing an adulterous disposition, 
V. Lloyd, 6 Com. B. N. & 519. A similar ovemiling Com. v. Merriam, Com. v, Hor- 
decision, founded on a statute removing ton, and Com. «. Thrasher, supra, so far as 
the incompetency of witnesses by reason thev are to the contrary. See also Boody 
of interest was rendCTed in Derby v. Derby, v. Soody, 80 L. J. n. s. P. & A. 28, and 
21 N. J. Eq. 86. It is to be observed aiUe, § 41. So proof of other acts of adul- 
that where, oy statute, a person accused tery committed near the time of the alle^^ 
of a crime may testify in his own defence, offence, though in a different county, is 
by so doing he waives his constitutional admissible for the same purpose. Com. v. 
privilege oi not being obliged to criminate Nichols, 114 Mass. 285. 



42 LAW OP EVIDBNCB. [PABT IV. 

§ 48. Not Indictable at oommon law. By the eommon law^ the 
simple act of adultery is not punishable by indictment^ but is left 
to the cognizance of the spiritual courts alone. It is only the 
open lewdness or public indecency of the act which is indictable.^ 
But in many of the United States it is now made indictable hy 
itattUee. Whether, to constitute this crime, it is necessary that 
both the guilty parties be married persons, is a point not perfectly 
agreed by authorities ; ' (a) but the better opinion seems to be, 
that the act of criminal intercourse, where only one of the parties 
is married, is adultery in that one, and fornication in the other.* 
Some of the statutes, upon a divorce a vinculo for adultery, 
disable the guilty party from contracting a lawful marriage 
during the life of the other ; but it has been held, that a second 
marriage does not, in such case, render the party guilty of the 
crime of adultery, but only exposes to a prosecution under the 
particular provisions of the statute, whatever they may be.* 
And if such second marriage is had in another State, where 
it is not unlawful, the parties may lawfully cohabit in either 
State.5 

§ 49. Proof of marriage. Upon every charge of adultery, whether 
in an indictment or a civil action, the case for the prosecution is 
not made out without evidence of the marriage. And it must be 
proof of an actual marriage, in opposition to proof by cohabitation, 
reputation, and other circumstances, from which a marriage may 
be inferred, and which in these cases are held insujfficient ; for 
otherwise persons might be charged upon pretended marriages set 

1 4 BL Conmi. 64, 65; Anderson v. Commonwealth, 6 RancL 627; State v, Branson, 
2 Bayley, 149; Commonwealth v. Isaaks, 5 Rand. 6S4. 

s State V, Pierce, 2 Blackf. 818; Respublica v. Roberts, 2 Dall. 124; 1 Teatea, 6. 

> Boayier*8 I^aw Diet. verb. Adultery; Hull v. Hull, 2 Strobh. £q. 174. In The 
State V, Wallace, 9 N. H. 515, it was held, that adultery was committed whenever 
there was unlawful intercourse, from which spurious issue might arise ; and that, 
therefore, it was committed by an unmarried man, by illicit connection with a married 
woman. See also Commonwealth v. Call, 21 Pick. 509. 

^ Commonwealth v, Putnam, 1 Pick. 186. 

^ Putnam v, Putnam, 8 Pick. 488. 

(a) By the Roman laws the crime of to which Prof. Greenleaf inclines in the 

adulteiy was limited to the illicit sexual in- text, that the act of criminal intercourse, 

tercourse of a married woman with a roan, where only one of the parties is married, 

and both the woman and her paramour is adultery in that one and fornication in 

were guilty of adultery, but b^ the com- the other, is the preyailing rule in the 

mon law, a married man also is guilty of United States. State v. Fellows, 50 Wis. 

adultery if he has sexual intercourse with 65, though cases in which the act is held 

a woman other than his wife. Wharton, to be adultery in both are not uncommon. 

Cr. Law, vol. 2, §§ 1718, 1719. The rule State v. Colby, 51 Vt. 291. 



\ 



PART IV.] ADULTERY. 48 

up for bad purposes.^ (a) Whether the defendant^ % admission of 
the marriage may be given in evidence against him has been 
doubted ; but no good reason has been given to distinguish this 
from other cases of admission, where, as we have already shown,^ 
the evidence may be received, though it may not amount to suf- 
ficient proof of the fact. Thus, in a civil action for adultery, 
where the defendant, being asked where the plaintiff's wife was, 
replied, that she was in the next room, this was held insufficient 
to prove a marriage, for it amounted only to an admission that 
she was reputed to be his wife.^ But any recognition of a person 
standing in a given relation to others is prima facie evidence, 
against the person making such recognition, that such relation 
exists ;^ and if the defendant has seriously and solemnly admitted 
the marriage, it will be received as suflBcient proof of the fact.* 
Thus, where the defendant deliberately declared that he knew 
that the female was married to the plaintiff, and that with full 
knowledge of that fact he had seduced and debauched her, this 
was held suiSicient proof of the marriage.^ 

§ 50. Same subjeot. In indictments, and actions for criminal 
conversation, as the prosecution is against a wrong-doer, and not 
a claim of right, it is sufficient to prove the marriage accordhig to 
any form of religion, as Jews, Quakers, and the like.^ (i) The 

^ Morris V, Miller, 4 Burr. 2059, expounded in 1 Doug. 174. In a libel for divorce, 
the oonrt wiU require proof of the marriage, eren though the party accused makes de- 
fault of appearance. Williams p. Williams, 8 Greenl. 135. 

* AnU^ vol. i. § 209 ; Cook v. State, 11 Ga. 53 ; Cameron v. State, 14 Ala. 546. 
In an indictment for adultery, where the defendant was married in a foreign countir, 
his admission of that fact has been held sufficient proof of the marriage. Cayford's 
Case, 7 Greenl. 57 ; s. p. Reg. v. Simmonsto, 1 Car. & Eirw. 164 ; irtfra^ § 461. 

» BuU. N. P. 28. 

* Dickenson v. Coward, 1 B. & Aid. 679, per Ld. Ellenborongh. 

* Rigg V, Cuigenyen, 2 WiU. 899. 

* Forney v, Hallacher, 8 S. & R. 159. 

^ Bull. N. P. 28. But it must be actually, and not merely prima fade a valid 
marriage, according to the law under which it was celebrated. Uatherwood v. Caslon, 
18 M. & W. 261. 

(a) By statute in Massachusetts, when (h) But a valid marriage must be 
the fact of marriage is required or of- proved. So if on an indictment for adul- 
fered to be proved before a court, evi- tery the proof of the marriage shows that 
dence of the admission of such fact bjr the at the time of the celebration of the cere- 
party against whom the process is msti- mony one of the parties was not of suffi- 
tutea, or evidence of general repute, or of cientagetobelegally capable of contracting 
cohabitation as married persons, or an^ marriage, and it also appears that the par- 
other circumstantial or presumptive evi- ties afterwards separated and ceased to 
dence from which the fact may be inferred, cohabit as man and wife, though it does 
is competent. Pub. Stat. c. 145, §31. As not appear whether the cessation was be-' 
to the proof of marriage in general, see also, fore or after the parties were both of legal 
ififraf titles Marriage and Bastardy. age to ratify the marriage, yet this is not 



44 LAW OP EVIDENCE. [PART IT. 

evidence on this head will be treated hereafter, under the appro- 
priate title. But in whatever mode the marriage was celebrated 
or is proved, there must be satisfactory proof of the identity of 

the parties.^ 

§ 61. Bafenoe. CoUosion. In defence of a libel for divorce^ or 
of an action for criminal conversation^ it may be shown that the 
adultery was committed, or the act of apparent criminality was 
done, by collusion between the parties, for the purpose of obtain- 
ing a separation, or of supporting an action at law. For the law 
permits no such co-operation, and refuses a remedy for adultery 
committed with such intent * (a) But the non-appearance of the 
wife, and a judgment by default against the paramour, are held 
no proof of collusion.® Passive sufferance or connivance of the 
husband may also be shown in bar, both of a libel and a civil 
action. But mere negligence, inattention, confidence, or dulness 
of apprehension, are not sufficient for this purpose; there must 
be passive acquiescence and consent, with the intention and in 
the expectation that guilt will follow.* The proof, from the 
nature of the case, may be made out by a train of conduct and 
circumstances; but it is not necessary to show connivance at 
actual adultery, any more than it is necessary to prove an actual 
and specific fact of adultery ; for if a system of connivance at 
improper familiarity, almost amounting to proximate acts, be 
established, the court will infer a corrupt intent as to the result.* 
But if the evidence falls short of actual connivance, and only 
establishes negligence, or even loose and improper conduct, in the 
husband, not amounting to consent, it is no bar to an action for 
criminal conversation, but goes only in reduction of the dam- 
ages.^ (li) It is not always necessary that the husband be proved 

^ See infro^ tit. Marriage. 

< Crewe v. Crewe, 3 Hagg. Eccl. 128, 180. 

» Ibid. 

* Rogers v. Bogers, 3 Hagg. EccL 58 ; Timminga v. Timminga, Id. 76 ; Lovering 
V. Lovering, Id. 85 ; Pierce v. Pierce, 8 Pick. 299 ; Duberley v. Gunning, 4 T. R. 
655 ; Bull. N. P. 27 ; Hodges v. Windham, Peake's Cas. 88 ; 1 Selw. K. P. 8, 9 
(10th ed.). 

^ Moorsum v. Moorsum, 3 Hagg. Eccl. 95. 

^ Foley V, Lord Peterborough, 4 Doug. 294 ; Duberley v. Gunning, 4 T. R. 655. 

sufficient proof of the marriage. The proa- (h) In Boulting v. Boulting, 8 Swab, h 

ecution should show that the separation T. 835, the judge says, "Conniranceiaan 

waa not a resciasion of the marriage con- act of the mind ; it miplies knowledge and 

tract. People v. Bennett, 89 Mich. 208. acquiescence. I prefer the word ' acquiea- 

(a) 2 Bishop on Marr. & Dir. c 8. cence* to 'consent,* because the latter, in 



PABT IV.] ADULTERY. 46 

to have connived at the particular acts of adultery charged ; for 
if he suffers his wife to live as a prostitute, and criminal inter- 
course with a third person ensues, he can have no action ; it is 
damnum absque injuria} Nor will an action lie for criminal con- 
versation, had after the husband and wife have separated by 
articles of agreement, and the husband has released all claim to 
the person of his wife ; for the gist of this action is the loss of 
the comfort, society, and assistance of the wife.^ 

§ 52. Heorimination. Recrimination is also a good defence to a 
libel for divorce ; * though it is no bar to an action for criminal 
conversation.* The principle on which this plea, of compensatio 
criminis is allowed is, that the party cannot justly complain of the 
breach of a contract which he has himself violated.^ This plea 
may be sustained on evidence, not as strong as might be neces- 
sary to sustain a suit for adultery ; ^ (a) and it makes no differ- 
ence whether the offence, pleaded by way of compensation, were 
committed before or after the fact charged in the libel.^ It has 
been questioned whether a single act of adultery is sufficient to 

1 Smith r. Alison, Bull. N. P. 27, per Ld. Mansfield ; Sanborn v, Neilson, 4 N. H. 
591. If the husband connive at adultery with A, he cannot have a divorce for an act 
of adultery, neai'ly contemporaneous, with B. Lovering v. Lovering, 8 Hagg. Eccl. 85. 

« Weedon v. Timbrell, 5 T. R. 857 ; Chambers v. Cauldfield, 6 East, 244 ; Winter 
V, Henn, 4 C. & P. 494 ; Bartelot v. Hawker, Peake's Cas. 7 ; Wilton v, Webster, 7 
C. & P. 198 ; Harvey v. Watson, 7 M. & G. 644. But if the separation was with- 
out any relinouishment by the husband of his right to the society of the wife, so that 
a suit for restitution of conjugal rights is still maintainable, it is no bar. Graham v. 
"Wigley, 2 Roper on Hus. & Wife, 328, n. Some of the earlier cases seem to favor 
the idea, that, if the separation was by deed, the action would not lie ; but this notion 
is not now favored, the true question being, whether the husband has or has not re- 
leased his right to her person and society. 

» Beeby v. Beebv, lUagg. Eccl. 789 ; Forsterv. Forster, 1 Ha^. Con. 144. Cruelty 
is no answer to a cnarge of adulteiy ; but is pleadable together with a counter-charge of 
adultery. Coxedge v. Coxedge, 8 Jur. 935 ; Bishop on Marriage and Divorce, c. 20. 

* Bromley v. Wallace, 4 Esp. 287. It eoes only to the damages in the civil action ; 
though Lord Kenyon formerly neld it good in bar. Wyndham v. Wycombe, 4 Esp. 16. 

» Beeby t?. Beeby, 1 Hagg. Eccl. 789 ; Forster v. Forster, 1 Hagg. Con. 168. 

* Forster v. Forster, supra; Astley v. Astley, 1 Hags. Eccl. 714, 721. 

7 Proctor V. Proctor, 2 Hagg. Con. 299 ; AstJey v, Astley, supra. If the act pleaded 
bv way of recrimination has been forgiven, the condonation is a sufficient answer to the 
plea. Anichini v, Anichini, 2 Curt 210. 

some respects, canies with it an idea of acquiescence to be proved? The answer 
leave or license conveyed or signified to is, like any other conclusion of fact. It 
the erring party. As a iM^al doctrine, con- may be proved by express language, or 
nivance haa its source and its limits in this by inference deduced from facts and con- 
principle, voUnli nonfit injuria: a willing duct." 

mind, this is all that is necessary. Such (a) This statement has not been re- 
is the result of the decisions. They are ceived with entire satisfaction in England, 
brought tocher in Sir Herbert Jenner's Turton v. Turton, 8 Hagg. 838 ; Goodall 
judgment, in Phillips v. Phillips, 4 Notes v. Goodall, 2 Lee, 884 ; Sopwith v. Sop- 
of Cts. 528. But how is knowledge and with, 2 Swab, k T. 160. 



46 LAW OP EVIDENCE. [PABT IV. 

Bupport this plea against a series of adulteries proved on the 
other side ; but the better opinion seems to be that it is.^ (a) 

§ 58. Condonation. Condonation is a sufficient answer to the 
charge of adultery, in a libel; but it does not follow that it is a 
good answer to a recriminatory plea ; for circumstances may take 
off the effect of condonation, which would not support an original 
suit for the same cause.^ Thus, facts of cruelty will revive a 
charge of adultery, though they would not support an original 
suit for it.' Condonation is forgiveness, with an implied condi- 
tion that the injury shall not be repeated, and that the party shall 
be treated with conjugal kindness ; and on breach of this condi- 
tion the right to a remedy for former injuries revives.* (J) It 
must be free ; for, if obtained by force and violence, it is not bind- 
ing ; and if made upon an express condition, the condition must 
be fulfilled.^ It must also appear that the injured party had full 
knowledge, or, at least, an undoubting belief of all the adulterous 
connection, and that there was a condonation subsequent to that 
knowledge.^ 

^ Astley V, Astley, 1 Hagg. EccL 722, 724 ; Naylor v. Naylor, Id. cit ; Brisco v, 
Brisco, 2 Addams, 259. 

3 Beeby v. Beeby, supra; D'Aguilar v. D'Agailar, 1 Hagg. Eccl. 782 ; Bishop on 
Marriage and Divorce, c. 19. 

« Ibid. 

* Durant v, Durant, 1 Hagg. Eccl. 761 ; Ferrers v, Ferrers, 1 Hagg. Con. 180. 
» Popkin V. Popkin, 1 Hagg. Eccl. 767, n. 

* Turton v. Turton, 8 Hagg. Eccl. 851; Anon., 6 Mass. 147; Perkins v. Perkins, Id. 
69 ; North v. North, 5 Mass. 820 ; Backus v. Backus, 8 Greenl. 136. 

(a) Apleaofrecriminationtoalibelfor shall also refrain from, committing any 

divorce may state any facts which would be other offence which falls within the cog- 

^ood grounds to support a libel for divorce nizance of a matrimonial court. Chan- 

m favor of the party who pleads them, cellor Walworth at one time held a much 

Thus where, as in Massachusetts, a sen- more restricted view. He thought that 

tence to imprisonment for a certain term nothing short of a repetition of the offence 

is clasised with adultery and other causes foigiven, or the doing an injury ^'usdtin 

which are good grounds for divorce, as soon gtneris, should operate as a revival of the 

hs one party to a marriage is sentenced to first offence. Johnson v, Johnson, 4 Paige 

such imprisonment, the other party's rieht (N. Y.), 460. But the Court of Errors, on 

to a divorce is complete, and therefore this appeal in the same case, 14 Wend. 648, 

is a good defence to a libel for divorce say, ''Hie good sense of the condition 

brought by the party so imprisoned on the which accompanies condonation is that the 

ground of subsequent adultery. Handy v, offending husband shall not only abstain 

Handy, 124 Mass. 894 ; Clapp v. Clapp, from adultery, bntshsJl in the future treat 

97 Mass. 531 ; and of similar purport are his wife with conjugal kindness. Hence 

Conant v. Conant, 10 Cal. 249 ; Adams v, cruelty is a breach of the condition and 

Adams, 2 C. £. Green, 824, p. 828. revives the adultery." This rule is the 

(h) Condonation is always conditional ; accepted doctrine of the English courts^ 

the condition being that the pardoned and also in the United States. Durant v. 

party shall in the future treat tne other Durant, 8 Eng. Eccl. 828; Eldred o. Eldnd, 

with conjugal kindness, and by this is 7 Eng. Eccl. 144; Wamerv. Warner, 81 

meant that he shall not only renain from K. J. £q. 225 ; Odom v. Odom, 86 Ga. 

a repetition of the offence foigiven, but 286. 



PABT IV.] ADULTERY. 47 

§ 54 Condonation. Where the partieB have separate beds, 
there must, in order to show condonation, be some evidence of 
matrimonial connection beyond mere dwelling under the same 
roof .^ But if a wife overlooks one act of human infirmity in the 
husband, it is not a legal consequence that she pardons all others. 
It is not necessary for her to withdraw from cohabitation on the 
first or second instance of misconduct ; on the contrary, it is legal 
and meritorious for her to be patient as long as possible ; forbear- 
ance does not weaken her title to relief, especially where she has 
a large family, and endures in the hope of reclaiming her hus- 
band.^ But, on the other hand, the situation and circumstances 
of the husband do not usually call for such forbearance ; and a 
facility of condonation of adultery on his part leads to the in- 
ference that he does not duly estimate the injury ; and if he is 
once in possession of the fact of adultery, and still continues co- 
habitation, it is proof of connivance and collusion.^ (a) In either 
case, to establish a condonation, knowledge of the crime must be 
clearly and distinctly proved.* 

§ 55. Damages. In proof of damage% on the part of the plaintiffs 
in a civil action for adultery, evidence is admissible showing the 
state of domestic happiness in which he and his wife had pre- 
viously lived ; and a marriage settlement or other provision, if 
any, for the children of the marriage ; ^ the relations, whether of 

1 Beebyv. Beeby, 1 Hagg. EccL 794 ; Westmeath v. Westmeath, 2 Hagg. Eccl. 118, 
8apt 

' D'Agnilar v. D'Aguilar, 1 Hagg. Eccl. 786 ; Dnrant v. Darant, Id. 752, 768 ; 
Beeby r. Beeby, 1 Hagg. Eccl. 793 ; Turton v. Turton, S Hagg. Eccl. 351. 

* Tuniuings v. Timminis, 8 Hage. Eccl. 78 ; Dunn v, Dunn, 2 Phill. 411. 

* Dorant V. Durant, 1 Hagg. Eccl. 738. 

* Bull. N. P. 27 ; 1 Stephen's N. P. 24. It baa been said, that the rank and cir- 
cmnstancea of the plaintiff may be given in evidence by him : but this has been de-* 

(a) It is held that the lapse of along time and other circumstances, have been 

time between the commission of the offence held enough to show that the application 

and the bringing a suit for divorce is not for a divorce was not bona fide, but for 

in itself conclusive proof of condonation, some sinister and fraudulent purpose. 

but it is such as to demand a full and Matthews v. Matthews, 1 Swab. & T. 499; 

aatis&ctory explanation of the delay, to Williams v. Williams, 85 L. J. 85. 
rebut the inferences of insincerity in the It has been held that cruelty is not a 

complainant, or acquiescence in the iinury subject of condonation. Perkins v, Per- 

or condonation of it. Kremelbeig v, Rre- kins, 6 Mass. 69 ; Hollister v. HoUister. 

melbeig, 52 Md. 658; Ferrers «. Ferrers, 6 Barr(Pa.), 449. But the English rule, 

1 Ha^. Con. 180 ; Coode v. Coode, 1 and the better American rule, is other- 

Cnrteis, 755. Proof of the execution of wise. Snow v. Snow, 2 Notes of Cas.. 

a deed of separation is not, by itself, proof Supp. 15 ; Burr v. Burr, 10 Paige (N.Y. ), 

of a condonation. J. G. v. H. G., 83 Md. 20 ; Gardner v. Gardner, 2 Gray Mass.), 

406. But the execution of a voluntary 484. 
deed of separation, combined with lapse of 



48 LAW OP EVIDENCE. [PABT IV. 

friendship, blood, confidence, gratitude, hospitality, or the like, 
which subsisted between him and the defendant;^ and the cir- 
cumstances attendant upon the intercourse of the parties.^ But 
it seems that evidence of the defendant's property cannot be given 
in chief, in order to acquire damages, the true question being, not 
how much money the defendant is able to pay, but how much 
damage the plaintiff has sustained.^ The state of the affections 
and feelings entertained by the husband and wife towards each 
other prior to the adulterous intercourse may be shown by their 
previous conversations, deportment, and letters;^ and the lan- 
guage and letters of the wife, addressed to other persons, have 
been received as evidence for the same object.^ Conversations 
also, and letters, between tlie wife and the defendant, and a draft 
of a letter from her to a friend, in the defendant's handwriting, 
have been admitted in evidence against him.^ But her confes- 
sions alone, when not a part of the re^ gestce^ are not admissible^ 
If the wife dies, pending the suit, the husband is still entitled to 
damages for the shock which has been given to his feelings, and 
for the loss of the society of the wife down to the time of her 
death; and this, though he was unaware of his own dis- 
honor until it was disclosed to him by the wife upon her death- 
bed.® 

§ 56. Damages. Character. As the husband, by bringing the 
action, puts the wife's character in issue, the defendant may show, 
in what is called mitigation of damageSy^ the previous bad charac- 
ter and conduct of the wife, whether in general or in particular 
instances of unchastity ;^^ her letters to and deportment towards 

-nied ; for the cliaracter of the husband is not in issue, except merely aa far aa that 
relation is concerned. Norton v. Warner, 6 Conn. 172. 
1 Ibid. 

* Duke of Norfolk v. Oermaine, 12 How. State Tr. 927. 

' James v. Biddington, 6 0. & P. 589. But in an action for breach of promise to 
marry, such evidence is material, as showing what would have been the station of the 
plaintiff in society, if the defendant had not broken his promise. Ibid. That the 
wealth and standing of the party are admissible, see post, §§ 89, 209. 

* ArUe, vol i. § 102. 

* Ante, vol. i. § 102 ; Jones v. Thompson, 6 C. & P. 416. Even though the letters 
contain other facts, which of themselyes could not properly be submitted to the jury. 
Willis V. Bernard, 8 Bing. 876. 

* Baker v, Morley, Bull. N. P. 28 ; Wilton v. Webster, 7 C. & P. 198. 

7 Ibid. ; Ayeson v. Lord Kinuaird, 6 East, 188 ; Walter v. Green, 1 C. & P. 621 ; 
Winsmore v. Greenbank, WiUes, 577. 

« WOton V, Webster, 7 C. & P. 198, per Coleridge, J. 

* See infra, tit Damages, §§ 265-267. 

^ Bull. N. P. 296 ; Id. 27 ; Hodges v. Windham, Peake's Gas. 89 ; Gardiner v. 
Jadis, 1 Selw. N. P. 24 ; anU, vol. i. § 54. 



PAET IV.] ADULTERY. 49 

himself, tending to prove that she made the first advances ; ^ the 
husband's conniTance at the adulterous intercourse ; * his criminal 
connection with other women ; * the bad terms on which he pre^ 
viously lived with his wife ; his improper treatment of her ; his 
gross negligence and inattention in regard to her conduct with 
respect to the defendant; and any other facts tending to show 
either the little intrinsic value of her society, or the light estima- 
tion in which he held it.* The evidence produced by the husband 
to show the harmony previously subsisting between him and his 
wife may be rebutted by evidence of her declarations prior to the 
criminal intercourse, complaining of his ill treatment ; and gen- 
eral evidence of similar complaints may be also given in reduc- 
tion of damages.^ But no evidence of the misconduct of the 
wife subsequent to her connection with the defendant can be 
received.^ 

§ 67. Letters of wife. The letters of the wife, in order to be 
admitted in favor of the husband, must have been written before 
any attempt at adulterous intercourse had been made by the 
defendant.^ And whenever her letters are introduced as expres- 
sive of her feelings, they must have been of a period anterior to 
the existence of any facts, tending to raise suspicions of her mis- 
conduct, and when there existed no ground to impute collusion.^ 
But in all these cases, the time when the letters were written 
must be accurately shown ; the dates not being sufficient for this 
purpose, though the postmarks may suffice.® 

§ 58. "When plaintiff may give evidence of good oharacter of the 
wife. Though the general character of the wife is in issue in this 
action, the plaintiff cannot go into general evidence in support of 
it, until it has been impeached by evidence on the part of the de- 
fendant, either in cross-examination or in chief ; but whether the 
plaintiff can rebut the proof of particular instances of miscon- 



1 Elsam V. Fawcett, 2 Esp. 662. 

* 1 Steph. N. P. 26 ; supra^ S 51 ; 1 Selw. N. P. 28, 24. The representation made 
by his wife to her husband, on the eve of her elopement, is admissiole, as part of the 
rta gesttB, to repel the Imputation of conuirance. Hoare v. Allen, 8 Esp. 276. 

« Bromley v. Wallace, 4 Esp. 287. 

* Trelawney v, Coleman, 2 Stark. 191 ; 1 B. & Aid. 90 ; Jones v. Thompson, 6 C. 
& P. 415 ; Winter v. Wroot, 1 M. & Rob. 404. 

» Winter v. Wroot, 1 M. & Rob. 404. 

* Elsam V, Fawcett, 2 Esp. 562. 

"f Wilton V. Webster, 7 C. & P. 198. 
9 Edwards v. Crock, 4 Esp. 89. 

* Edwards v. Crock, Ibid.; 1 Steph. N. P. 27. 

YOL. II. 4 



50 LAW OP EVIDENCE. [PABT IV. 

duct, by proof of general good character, maj be doubted ; and 
the weight of authority seems against its admission.^ (a) 

1 Batniield v, Massey, 1 Campb. 460 ; Dodd v, Norris, 8 Campb. 519 ; Doe dern. 
Farr v. Hicks, Boll. N. P. 296 ; s. c. 4 £ap. 51 ; Stephenson v. Walker, 4 Esp. 50, 
51 ; Bate v, HUl, 1 C. & P. 100 ; anU, voL i. §§ 54, 55 ; 1 Steph. N. P. 26. 

(a) Even after the adultery of the wife, the adultery of the defendant is alleged to 

Shattuck V. Hammond, 46 Yt. 466 ; have been committed is admissible. The 

Smith V. Masters, 15 Wend. (N. Y.) 270. defendant may show that the character of 

On the trial of an indictment for adul- such person for chastity is good. Com. v. 

teiy, evidence of the character or reputa- Gray, 129 Mass. 474. 
tion for chastity of the person with whom 



PART IT.] AOENCT. 61 



AGENCY. 

§ 59. Agency defined. An agent is one who acts in the place 
and stead of another. The act done, if lawful, is considered as 
the act of the principal. It is not always necessary that the au- 
thority should precede the act ; it may become in law the act of 
1^ principal, by his subsequent ratification and adoption of it^ 
The vital principle of the law of agency lies in the legal identity 
of the agent and the principal, created by their mutual consent. 
If the agent does an act within the scope of his authority, and at 
the same time does something more which he was not authorized 
to do, and the two matters are not so connected as to be insepara- 
ble, even though both may relate to the same subject ; that which 
he had authority to do is alone binding, and the other is void.^ 

§ 60. Bvidenoe of agency. The evidence of agency is either direct 
or indirect. Agency is directly proved by express words of ap- 
pointment, whether orally uttered or contained in some deed or 
other writing. It is indirectly established by evidence of the rela- 
tive situation of the parties, or of their habit and course of dealing 
and intercourse, or it is deduced from the nature of the employ- 
ment or from subsequent ratification.^ 

§ 61. Anthority, how proved. As a general rule, it may be laid 
down, that the authority of an agent may be proved by parol evi- 
dence ; that is, either by words spoken, or by any writing not un- 
der seal, or by acts and implications.^ (a) But to this rule there 
are some exeeptiont. Thus, whenever an act is required to be 
done under seal^ the authority of the agent to do it must also be 
proved by an instrument under seal. A writing without seal will 
not be sufficient at law to give validity to a deed, though a court 

1 Maclean v. Dnnn, 4 Bing. 722 ; Story on Agency, §§ 289-260. 
' Hammond v, Michi^n State Bank, 1 Walker, Oh. 214. 
' Story on Agency, § 45 ; 2 Kent, Comm. 612, 613 ; Paley on Agency, p. 2. 
^ story on Agency, § 47 ; 8 Chitty on Comm. k Man. p. 5 ; Coles v, Trecothick, 
9 Yes. 250. 

(a) Dnunright v. Philpot, 16 6a. 424. presumption is that it was a general 
If an agency be proved, and there is no agency. Methuen Co. v, Hayes, 88 Me. 
evidence that it was a limited agency, the 169. 



52 LAW OF EVIDENCE. [PABT lY. 

of equity might, in such case, compel the principal to confirm and 
ratify the deed.^ (a) The principle of this exception, however, is 
not entirely followed out in the common law ; for an authority to 
sign or indorse promissory notes may be proved by mere oral com- 
munications, or by implication;^ and even where the Statute of 
Frauds requires an agreement to be in writing, the authority of an 
agent to sign it may be verbally conferred.* 

§ 62. Wlien corporation is principaL Where a corporation aggre- 
gate is the principal, it was formerly held, that the authority of 
its agent could be proved only by deed, under the seal of the cor- 
poration. But this rule is now very much relaxed both in England 
and America ; and however necessary it still may be to produce 
some act under the corporate seal, as evidence of the authority of 
a special agent, constituted immediately by the corporation, to 
transact business affecting its essential and vital interests ; yet, in 
all matters of daily necessity, within the ordinary powers of its 
officers, or touching its ordinary operations, the authority of its 
agents may be proved as in the case of private persons.* (6) And 

^ Story on Agency, § 49 ; Harrison v. Jackson, 7 T. R. 207 ; Paley on Agency, by 
Lloyd, I57i 158. If the deed is executed in the presence of the principal, no other 
aatnority is necessary. Story on Agency, § 51. 

* Story on Agency, § 60. 

* Maclean v, Dunn, 4 Bing. 722 ; Coles v. Trecothick, 9 Yes. 250 ; Paley on 
Agency, by Lloyd, 158-161; Emmerson v. Ueelis, 2 Taunt. 48 ; Story on Agency, § 50. 
If an instrument, executed by an agent, be one which, without seal, would bind the 

Srincipal, it will bind him, if it be under seal. Wood v. Auburn & Rochester R. R. 
o., 4 Selden (N. Y.), 160. See Wheeler «. Nevins, 84 Me. 54. 

* Story on Agency, § 58 ; East London Waterworks Co. v. Bailey, 4 Bing. 288 ; 
Bank of Columbia v. Patterson, 7 Cranch, 299-305 ; Smith v. Birmingham Gas- 
Light Co., 1 Ad. k £1. 526 ; Bank of the United States v. Dandridge, 12 Wheat. 67- 
75 ; Randal v. Van Vetchen, 19 Johns. 60 ; Dunn v, St. Andrew's Church, 14 Johns. 
118 ; Perkins v, Washington Ins. Co., 4 Cow. 645 ; Troy Turnpike Co. v, M'Ches- 
ney, 21 Wend. 296 ; Angell & Ames on Corp. 152, 153 ; Rex v. Bigg, 8 P. Wms. 427. 

(a) Though a power of attorney not witnessed by two subecribing witnesses, a 
under seal is not a sufficient authority to ex- power of attorney to convey lands under 
ecute an instrument under seal, yet it is not such statute is not good, unless witnessed 
therefore wholly void. If it authorizes a by two subscribing witnesses. Gage v. 
sale of land, the sale will be valid ; and if (Sage, 80 N. H. 420. 
the purchaser under such a sale pays his (h) Melledge v. Boston Iron Ch)., 6 
money for the land, he thereby completes Cush. 179 ; Narragansett Bank v, Atlantic 
an equitable title to the land, and a court Silk Co., 8 Met. 282. Where no one is 
of equity will enforce this title, either by speciallv authorized by any statute, or by 
compelling the vendor to make out suffi- the by-laws, to call meetings of a tradins 
cient deeds and conveyances of the land, corporation, in the absence of any speciiu 
or by ei^oining process of law brought to autnority, it is competent for the general 
eject the vendee when he is in possession, agent of such corporation to notify meet- 
Watson V, Sherman, 84 111. 263. CH ings when, in his judgment, the interest 
Baker v. Freeman, 35 Me. 485. Where a and business of the corporation require it. 
statute makes it Indispensable to a good Stebbins v. Menitti 10 Cush. 83. 
conveyance of land that the deed ahafi be 



PART IV.] AGENCY. 68 

where a deed is signed by one as the agent of a corporation, if the 
seal of the corporation is affixed thereto, it will be presumed, in 
the absence of contradictory evidence, that the agent was duly au- 
thorized to make the conveyance.^ 

§ 63. When anthoilty Is in wiitiiig. If the authority of the agent 
is in writing, the writing must be produced and proved ; and if, 
from the nature of the transaction, the authority must have been 
in writing, parol testimony will not be admissible to prove it, 
unless as secondary evidence, after proof of the loss of the origi- 
nal.* (a) Where the authority was verbally conferred, the agent 
himself is a competent witness to prove it;^ but his declarations, 
when they are no part of the re« ge9toB^ are inadmissible.* (6) 

§ 64. When it le inferred from the relations of the parties. Where 
the agency is inferred from the relative situation of the parties, it 
is generally sufficient to establish the fact that the relationship in 
question was actually created; and this must be proved by the 
kind of evidence appropriate to the case. Thus, where the sheriff 
was sued for the wrongful act of a bailiff, it was held not enough 
to prove him a general bailiff, by official acts done by him as such ; 
but proof was required of the original warrant of execution, di- 
rected by the sheriff to the bailiff, which is the only source of a 
bailiff's authority, he not being the general officer of the sheriff.* 
If the relation is one which may be created by parol, it may be 
shown by evidence of the servant or agent, acting in that relation, 
with the knowledge and acquiescence of the principal, whether 
express or implied.^ 

§ 64 a. Bactent of agency. The mere existence of the relation, 
however, establishes an agency no further than is necessary for the 
discharge of the duties ordinarily belonging to it. Thus, the ac- 

1 Flint V, Clinton Co., 12 N. H. 430. 

' Ante^ vol. i. §§ 86-S8 ; Johnson v. Mason, 1 Esp. 89. 

' Ante, vol. i. §§ 416, 417, and cases there cited. 

« Ante, vol 1. { 113 ; Clark v. Baker, 2 Whart. 840. 

» Drake v. Sykes, 7 T. R. 118. 

* Price V, Marsh, 1 C. & P. 60 ; Rez v. Almon, 5 Burr. 2686 ; Garth v. Howard, 5 
C. k P. 346 ; 8. c. 8 Bing. 451 ; Stoiy on Agdncy, § 55 ; White v. Edgman, 1 Over- 
ton (Tenn.), 19. 

(a) The agency as a question of fact, are not competent evidence to prove the 

in a collateral proceeding, may he proved existence or scope of the agency. Nor are 

by the acts or declarations of the principal his acts done without the knowledge or 

and agent, and the proof is not confined to authority of the alleged principal, and not 

the writing itself. Columbia, &c. Co. v, ratified subsequently by him, evidence of 

Geisse, 38 N. J. L. 89. the agency. Whiting v. Lake, 91 Pa. St 

(6) Declarations of the agent to third 849 ; Reynolds v. Continental Insurauco 

pa*tiea» stating hit agency and its scope, Co., 86 Mich. 131. 



64 LAW OP EVIDENCE. [PABT IV. 

tual command of a ship, as master, renders the owner chargeable 
onlj for all such acts as are done by the master in the ordinary 
course of his employment.^ (a) But the marital relation alone will 
not render a husband liable, by raising a presumption of agency 
in the wife, where her orders for goods are of an extrayagant na- 
ture, disproportionate to the husband's apparent ability .^ (6) 

§ 65. Agencies proved by habit and oourae of dealing. The most 
nimierous class of cases of agency is that which relates to affairs 

1 Story on Agency, §§ 116-128 ; Abbott on Shipping, part 2, c. 2, 3. 

* Lane v. Ironmonger, 1 New Pr. Cas. 105 ; Freestone v. Butcher, 9 C. & P. 648. 

{a) Rogers v, McOune, 19 Mo. 557. gave a receipt for ^oods which had not 
The master of a ship has no general been received, the principal was not bound, 
authority as such to sign a bill of lading as it was not within the scope of the agent's 
for goods which are not put on board the authority, in the course of his employ- 
vessel, and if he does so, the owners are ment, to gi^e such receipt. Coleman v, 
not responsible therefor. Grant v. Nor- Riches, 29 £ng. Law & £(j. 823. 
way, 2 Eng. Law & £q. 837 ; Hubbersty The delivery of an account to an a£;ent 
V, Ward, 18 Id. 551 ; Coleman v. Riches, to collect confers no authoritv to settle it 
29 Id. 823. in any other mode; and if tne agent ex- 

(b) A general selling agent is authorized ceeds his authority, the principal does not 
to sell goods in the usual manner, and ratify his act by neglecting to give notice 
only in the usual manner, in which goods that he repudiates it. Powell v. Henry, 27 
or things of that sort are sold. Shaw v. Ala. 612; Kirk v, Hiatt, 2 Carter (Ind. ), 
Stone, 1 Gush. (Mass.) 228. But such 822. Authority to an agent to " settle," 
agent has no implied authority to bind his is not authority to submit to arbitration, 
principals by a special warranty; as that Huber v. Zimmerman, 21 Ala. 488. 
flour sold by him on their account will A general agent of an insurance corn- 
keep sweet during a sea voyage, in the pany binds his principal, although he de- 
absence of any business usage to that parts from his instructions; nmess those 
effect. Upton v, Suffolk County Mills, with whom he is dealing have notice that 
11 Id. 586. See also Nash v. Drew, 5 Id. he is transgressing his authority. N. Y. 
422. But see Ezell v. Franklin, 2 Sneed Central Ins. Co. v. National Pro. Ins. Co., 
(Tenn.), 286. An agent to purchase has 20 Barb. 468; Hunter v, Hudson River, 
authority to make representations as to &c. .Co., Id. 498. See also Barber v, 
the solvency of his pnncipal. Hunter v. Britton, 26 Vt. 112; Linsley v. Lovely, 
Hudson River, &c Co., 20 Barb. (N. Y.) Id. 123; Chouteanx v. Leech, 18 Penn. 
493. St. 224; Un. Mut. Ins. Co. v. WUkin- 

An authority to sell and convey lands son, 13 Wall. (U. S.) 222; May on Ins. 

for cash confers on the agent the right to §§ 148, 144. But the authority of an 

receive the purchase-money. Johnson i;. agent, however general, if capable of be- 

McGruder, 15 Mo. 865. A letter of attor- ing executed in a lawful manner, is never 

ney, which authorizes an agent to pur- to be extended by constniction to acts 

chase goods- belonging to A and others, prohibited by law, so as to i*ender his in- 

and draw such bills as should be agreed nocent princi|)al liable in a criminal pros- 

on between him and A, does not authorize ecution. Clark v. MetroiK)litan Bunx, 3 

the purchase of such goods from other per- Duer (N. Y.), 241. After considemble 

sons. Peckham v. Lyon, 4 McLean, C. C. fluctuation of opinion, it now seems to be 

45. An agent employed to bu^ and sell settled, in England at least, that, where 

has no authority to bind his pnncipal by the principal resides abroad, his agent in 

a negotiable note given for goods bought, England cannot, without express authority, 

unless the giving of such note be indispen- pledge his foreign principal's credit. This 

sable to carrying on the business in which usage of trade is so well established, that 

he is emploved. Temple v, Pomroy et the courts are inclined to treat this rule 

al,, 4 Gray (Mass.), 128. as matter of law. Armstrong v. Stokes, 

Where the agent of a wharfinger, whose L. R. 7 Q. B. 528; Die Elbinger v, Claye, 

dutv it was to give receipts for goods ac- L. R. 8 Q. B. 818; Hatton v, Bulloch, 

tually received at the wharf, fraudulently L. R. 8 Q. B. 884. 



PABT IV.] AGENCY. 65 

of trade and commerce, where the agency is proved by inference 
from the habit and course of dealing between the parties. This 
may be such as either to show that there must have been an origi- 
nal appointment, or a subsequent and continued ratification of the 
acts done ; but in either case the principal is equally bound. Hav- 
ing himself recognized another as his agent, factor, or servant, 
by adopting and ratifying his acts done in that capacity, the prin- 
cipal is not permitted to deny the relation to the injury of third 
persons who have dealt with him as such.^ Cases frequently oc- 
cur in which, from the habit and course of conduct and dealing 
adopted by the principal, the jury have been advised and permitted 
to infer the grant of authority to one to act as his salesman,^ 
broker,' servant,* or general agent,* and even to his wife,* to 
transact business in his behalf ; and he has been accordingly held 
bound. A single payment, without disapprobation, for what a 
servant bought upon credit, has been deemed equivalent to a 
direction to trust him in future ;7 and the employer has been 
held bound in such case, though he sent him the second time with 
ready money, which the servant embezzled.® In regard to the pay- 
ment of moneys due, the authority to receive payment is inferred 
from the possession of a negotiable security; and, in regard to 
bonds and other securities not negotiable, the person who is en- 
trusted to take the security, and to retain it in his custody, is 
generally considered as entrusted with power to receive the money 
when it becomes due.® 

§ 66. RatifioatioiL Where the agency is to be proved by the 

1 2 Kent, Comm. 614, 615. The decisions on imnlied agencies are coUected and 
ammged, with jost discrimination, in 1 Hare & Wallace's American Leading Cases, 
pp. 898-404. 

* 2 Story on Agency, § 55; Harding v. Carter, Park on Ins., p. 4; Prescott v. Flinn, 
9 Bing. 19. Evidence that the defendant's son, a minor, had in three or four instances 
signed for his father, and had accepted bills for him, has been held sufficient prima 
fads evidence of authority to sign a coUateral guaranty. Watkins v. ViDce, 2 
Stark. 368. 

* Whitbead v, Tuckett^ 15 East, 400. « Hazard v, Treadwell, 1 Stra. 506. 
» Burtr. Palmer, 6 Esp. 145; Petov. Hague, 5 Esp. 184. 

* Palethorp v. Furnish, 2 Esp. 511; aiUe, vol. i. § 185, and cases there cited; 
Emerson v. Blondon, 1 Esp. 142; Anderson v, Sanderson, 2 Stark. 204; Clifford v. 
Burton, 1 Bing. 199; 1 Bl. Comm. 430; Fenner v, Lewis, 10 Johns. 38; Lord v. Hall, 
8 M. O. & S. 627. 

7 1 BI. Comm. 430; Bryan v. Jackson, 4 Conn. 291; Story on Agency, § 56. 

< Rushby v, Scarlett, 5 Esp. 76; Hazard v, Treadwell, 1 Stra. 506; Story on 
Agency, § 56. 

» Story on Billa, § 415; Story on Agency, §§ 98, 104; Wolstenholm v. Dayies, 2 
Freem. 289; 2 Eq. Cas. Abr. 709; Duchess of Cleveland v. Dashwood, 2 Freem. 249; 
2 Eq. Cas. Abr. 708; Owen v. Barrow, 1 New Rep. 101; Kingman «. Pierce, 17 Mass. 
247; Anon., 12 Mod. 564; Gerard v. Baker, 1 Ch. Cas. 94. 



66 LAW OP EYIDENCB. [PABT IV. 

suhsequent ratifieatian and adoption of the act by the principal, 
there mast be evidence of previous knowledge on the part of the 
principal of all the material facts.^ The act of an unauthorized 
person in such cases is not void, but voidable;* but when the 
principal is once fully informed of what has been done in his 
behalf, he is bound, if dissatisfied, to express his dissatisfaction 
within a reasonable time, and if he does not, his assent will be 
presumed.' But where the act of the agent was by deed, the 
ratification also must in general be by deed ; ^ or, more generally 
speaking, wherever the adoption of any particular form or mode 
is necessary to confer the authority in the first instance, the same 
mode must be pursued in the ratification.^ The acts and conduct 
of the principal, evincing an assent to the act of the agent, are in- 
terpreted liberally in favor of the latter, and slight circumstances 
will sometimes suffice to raise the presmnption of a ratification, 
which becomes stronger in proportion as the conduct of the prin- 
cipal is inconsistent with any other supposition.^ Thus, if goods 
are sold without authority, and the owner receives the price, or 
pursues his remedy for it by action at law against the purchaser, 
or if any other act be done in behalf of another, who afterwards 
claims the benefit of it, this is a ratification." Payment of a loss, 
upon a policy subscribed by an agent, is evidence that he had 
authority to sign it.' Proof that one was in the habit of signing 
policies in the name and as the agent of another, and with his 
knowledge, is evidence of his authority to sign the particular 
policy in question ; ® and if the principal has been in the habit 
of paying the losses upon policies so signed in his name, this has 

1 Owingsv. HqU, 9 Pet. 007; BeU v. Cunningham, 8 Pet. 81; Conrteen v. Tonae, 1 
Campb. 48, n. See also Wilson v, Tummon, 6 Scott, N. R. 894; Nixon v. Palmer, 4 
Selden (N. Y.), 898. 

« Denn v. Wright, 1 Pet. C. C. 64. 

* Cairnes v. Bleecker, 12 Johns. 800; Bradin v. Dubair, 14 S. & R. 27; Amoiy v. 
Hamilton. 17 Mass. 108; Ward v. Evans, 2 Salk. 442. ' If he assents while ignorant 
of the facts, he may disaffirm when informed of them. Copeland v. Merchants' Ins. 
Co., 6 Pick. 198. 

4 Blood V. Goodrich, 9 Wend. 68; 8. c. 12 Wend. 525; Story on Agency, § 252. 

* Despatch Line, &c. v. Bellamy Man. Co., 12 N. H. 205; Boyd v. Dodson, 
5 Hurophr. 87. 

« Story on Agency, § 258; Ward v. Evans, 2 Salk. 442. 

7 Peters v. Ballister, 8 Pick. 495. Bnt if the action is discontinued or withdrawn, 
on discovering that the remedy is misconceived, it is not a ratification. Ibid. See 
also Lent v. Padelford, 10 Mass. 280; Episcopal Charit. Soc. r. Epis. Ch. in Dedham, 
1 Pick. 872; Knpfer v. Angnsta, 12 Mass. 185; Odiome v. Maxey, 18 Mass. 178; 
Herring v. Policy, 8 Mass. 118; Pratt v. Putnam, 18 Mass. 861; Fisher v. WiUaid, Id. 
879; Copeland v. Merchants* Ins. Co., 6 Pick. 198. 

B Courteen v, Touse, 2 Campb. 48, n. * Neal v. Irvin|^ 1 Esp. 61. 



PART IV.] AGENCY. 57 

been held suflficient proof of the agency, though the authority was 
conferred by an instrument in writing.^ And an authority to 
sign a policy is sufficient evidence of authority to adjust the loss.^ 
Where the principal, in an action against himself on a policy 
signed by an agent, used the affidavit of the agent to support a 
motion to put off the trial, in which the agent stated that he sub- 
scribed the policy for and on account of the defendant, this was 
held a ratification of the signature.^ 

§ 67. Same sabjeot Lofig acquiescence of the principal, after 
knowledge of the act done for him by another, will also, in many 
cases, be sufficient evidence of a ratification, (a) If an agency 
actually existed, the silence or mere acquiescence of the principal 
may well be taken as proof of a ratification. If there are peculiar 
relations between the parties, such as that of father and son, the 
presumption becomes more vehement, whether there was an 
agency in fact or not, and the duty of disavowal is more urgent. 
And if the silence of the principal is either contrary to his duty, 
or has a tendency to mislead the other side, it is conclusive. Such 
is the case among merchants, when notice of the act done is given 
by a letter which is not answered in a reasonable time. Whether 
a mere voluntary intermeddler, without authority, is entitled to 
the benefit of the principal's silence, is not clearly agreed ; but 
the better opinion is, that where the act was done in good faith 
for the apparent benefit of the principal, who has full notice of 
the act, and has done nothing to repudiate it, the agent is entitled 
to the benefit of his silence as a presumptive ratification.^ 

1 Haiighton v, Ewbank, 4 Campb. 88. So of biUs of excliange. Hooe v. Oxley, 
1 Wash. 19, 28. 

* Richardson v, Andenon, 1 Campb. 48, n. See also 2 Kent Comm. 614, 616. 

* Johnson v. Ward, 6 Esp. 47; anU, vol. i. §§ 106, 210. 

* Story on Agency, §§ 255-268, cum Twtia; Amory v, Hamilton, 17 Mass. 103; 
Kingman v. Pierce, Id. 247 ; Frothingham v. Haley, 8 Mass. 70; Erick v. Johnson, 6 
Mass. 193. 

(a) Thus, if one is agent of a mining com- (N. T.) 281. So where the agent was au- 
pany for the purpose of working its mines, thorized to '* sell the goods now in store, 
and has no authority to borrow money in and bay other goods in order to keep the 
its name, bat does in fact borrow lai^ge stock good," "bat not to buy on credU 
snms of money, and the president of the without an order in writing from the 
company is informed of such loans, and principal," and the agent bought goods 
demand is made bv the lender for payment on credit, which went into the stock of 
thereof, and withm a reasonable time the the defendants and were kept and sold by 
company fail to disavow the act of its agent them, it was held that this was a sufficient 
in so borrowing the money, this is suffi- ratification of the act of the agent in buy- 
dent evidence of a ratification of the loan, ing the goods, although the principal was 
Gold-mining Company v. National Bank, not aware that they were bought on credit. 
96 U. S. 640; Yiannair. Barclay, 8 Cow. Sartwell v. Frost, 122 Mass. 184. 



68 LAW OP EVIDENCE. [PABT TV. 

§ 68. When agent's aot is nnlawfoL If the act of the agent was 
in itself unlawful and directly ir^'uriaus to another, no subsequent 
ratification will operate to make the principal a trespasser; for an 
authority to commit a trespass does not result by mere implication 
of law. The master is liable in trespass for the act of his servant, 
only in consequence of his previous express command ; ^ (a) which 
may be proved, either by direct evidence of the fact, or by his 
presence at the time of the transaction, or by any other legal evi- 
dence which will satisfy the jury. In the absence of such proof, 
the master is not liable in tort ; for the only act of the master is 
the employment of the servant, from which no immediate preju- 
dice can arise to any one ; and the only authority presumed by the 
law, is an authority to do all lawful acts belonging to his employ- 
ment.^ But if the servant, in doing such acts, perpetrates a fraud 
upon another, or occasions a consequential injury, the master is 
liable in an action on the case.^ (i) Thus, where the defendant, 
being the owner of a house, employed an agent to sell it, and the 
agent described it as free from rates and taxes, not knowing it to 

1 See 1 Parsons on Contr. pp. 69, 70, n. 

2 McManus v. Crickett, 1 East, 106; Middleton v. Fowler, 1 Salk. 282; Odiorne r. 
Maxcy, 13 Mass. 178; Salem Bank v. Gloucester Bank, 17 Mass. 1; Wyman v. Hal. 
k Augusta Bank, 14 Mass. 58; Wilson v, Tummon, 6 Scott, N. R. 894; South wick v. 
Estes, 7 Cush. 385. 

» story on Agency, § 808; 1 Bl. Comm. 431; Foster v, Essex Bank, 17 Mass. 479; 
Gray V. Portland Bank, 3 Mass. 264; Williams v. Mitchell, 17 Mass. 98; Lane v. Cotton, 
12 Mod. 488; Shaw v. Reed, 9 Watts & Serg. 72. The sherii^ however, on grounds 
of public policy, is liable, in trespass, for the act of his deputy. Campbell v. rhelps, 
17 Mass. 244; 1 Pick. 62. 

(a) A corporation may be sned'for an {b) The principal cannot be permitted 
assanlt and oattery committed by their to enjoy the fruits of a bu^in without 
servant acting under their authority, adopting all the instrumentalities em- 
Moore V, Fitchbui]g Railroad Co., 4 Gray ployed oy the agent in brining it to a 
(Mass.), 465. It is now well settled that consummation. If an agent defrauds the 
the principal is liable for the consequences person with whom he is dealing, the prin- 
of an unlawful or even criminal act of clpal, not having authorized or participated 
his agent, done in the course of his em- in the wrong, may, no doubt, rescind, 
ployment, as where the servant purpasely when he discovers the fraud, on the terms 
rings a bell so as to frighten a horse (Ch. of making complete restitution. But so 
B. & Q. R. R. Co. «. Dickson, 63 111. long as he retains the benefits of the deal- 
151), or, in the line of his employment, ing, he cannot claim immunity on the 
commits an assault and batteiy (Moore v. ground that the fraud was committed by 
Fitchbur^ R. R. Co., 4 Gray (Mass.), 465), his agent, and not by himself. Elwell v. 
or maliciously prosecutes another (Gillett Chamberlin, 31 N. Y. 619. Where an 
V. Mo. y. R. R. Co., 55 Mo. 815), or for agent buys an article for his principal, 
criminal negli;^nce (Passenger R. R. Co. and the price goes down, another agent of 
V. Young, 21 Ohio St. 518. See also Sey- the same principal has no authority to 
mour V. Greenwood, 6 H. & N. 359; Ph. & repudiate the contract, unless specially 
Read. R. R. Co. v. Derby, 14 How. (U. S.) directed so to do. Law v. Cixiss, 1 BIb<^ 
468; Ramsden v. B. k A. R. R. Co., 104 (U. S.), 538. 
Mass. 117. See also post, § 222). 



PART IV.] AGENCY. 69 

be otherwise ; but it was in fact liable to certain rates and taxes, 
as the owner knew ; and, on the faith of the agent's representation, 
the plaintiff bought the house ; it was held, that the purchaser, 
being actually deceived in his bargain, might maintain case for 
deceit against the owner, though it did not appear that the latter. 
had instructed the agent to make any representation as to rates 
and taxes.^ (a) 

§ 68 a. ReTooation. The proof of agency, thereby charging the 
principal, may be rebutted by showing that his authority was re- 
voked prior to the act in question. But if he was constituted by 
writing, and the written authority is left in his hand subsequent 
to the revocation, and he afterwards exhibits it to a third person, 
who deals with him on the faith of it without notice of the revoca- 
tion, or the knowledge of any circumstances sufficient to have put 
him on his guard, the act of the agent, within the scope of the 
written authority, will bind the principal.^ 

1 FuUer v, WUaon, 8 Ad. & El. n. s. 56. 

* Beaid v. Kirk, 11 N. H. 897. 

KoTE. — [Mr. Jastice Story (Story on Agency, c. 18) states the law in regard to the 
dissolution or determination of agency in substance as foUows: An ag|ency may be 
dissolved, either by the revocation of the principal, or by the renunciation ot the 
acent, or by operation of law, as where the event occurs, or the period expires, to 
which and by wnich it was oriciually limited; or where the state and condition of the 
principal or agent has changed; or where the principal or agent dies; or where the sub- 
ject-matter of the agency nas become extinct, or the principaFs power over it has 
ceased; or where the trust confided to the agent has been completely ex^uted. In 
general, a principal may determine or revoke the authority given to his agent, at his 
mere pleasure; and this is so even if the authority be expressly declared to be irrevo- 
cable, unless it be coupled with an interest, or unless it was given for a valid considera- 
tion. But where an authority or power is coupled with an interest, or where it is given 
for a valuable consideration, or where it is part of a security, then, unless there is an 
express stipulation that it shall be revocable, it is, from its own nature and character, 
irrevocable in contemplation of law, whether it is or is not expressed to be so upon the 
iace of the instrument conferring the authority. If the authority has been in part 
executed by the a^nt, and if it admits of severance, or of being revoked as to the 
part unexecuted, it would seem that the revocation, either as to the agent or as to 
thinl persons, is good as to the part unexecuted, but not as to the part already exe- 
cuted. If the authority is not thus severable, the principal, it would seem, cannot 
revoke the unexecuted part, at least, without fully indemnifying the agent ; and it 
would aeem, the right of the other contracting pfui;y would not be affected by the 
revocation. 

The revocation may be express, as by a direct and formal declaration publicly made 

(a) As to the effect of fraud on a sub- and nothing else, ratification is allowable, 

sequent ratification of a contract, it has Thus, where an indorsement is forged on a 

been said that where the fraud is of such promissory note, no ratification of the for- 

a character as to involve a crime, the rati- gery by the party whose name it purports 

fication of the act from which it springs is to be will render the indorsement good, 

opposed to public policy, and cannot be Shisler v, Vandike, 92 Pa. St. 447; citing 

permitted ; out where the transaction is PearsoU v, Chapin, 44 Pa. St 9, and Neg- 

contrary only to good faith and fair deal- ley v. Lindsay, 67 Pa. St. 217. 
ing, where it affects individual interests 



60 LAW OP EVIDENCE, [PABT IV. 

known, or by an informal writing, or by parol ; or it may be implied from circom- 
Btances, as where the principal employs another person to do the same act, and the 
exercise of the authority of both is incompatible ; or where the principal should him- 
self collect the debts, which he had previously authorized the agent to collect. 

The revocation takes etfect as to the agent, when it is made known to him ; as to 
third persons, when it is made known to them, and not before. Hence, if an agent is 
employed to sign, indorse, or accept bills and notes for his principal, and he is dis- 
charged by the principal, if the dischaive is not known by persons dealing with him, 
notes and bills subsequently signed, indorsed, or accepted by the agent, will be bind- 
ing upon the principal, upon the well-known maxim of law and equity, that where 
one of two innocent persons must suffer, he shall suffer, who, by his confidence or 
silence or conduct, has misled the other, (a) 

An instance of the revocation of the authority of an agent, through the operation 
of law, by a change of condition or of state, producing incapacity in either party, when 
such authority is not coupled with an interest, is where an unmarried woman, as prin- 
cipal, gives authority to an acent, and afterwards marries, the marriage revokes the au- 
thority. So where the principal becomes insane, the lunacy having been established 
by an inquisition, it would seem that the authority of the agent wotud or might be re- 
voked or suspended, during the continuance of the insanity. The bankruptcy of the 
principal operates as a revocation of the authority of the agent, touching any rights of 
property of which he is divested by the bankruptcy. Where the authoritv is coupled 
with an interest, as it need not be executed in tne name of the principal, but is valid 
if executed in the name of the agent, it is not revoked by the marriage, or insanity, or 
bankruptcy of the principal 

The death, either of the principal or agent, operates as a revocation of the authority 
of the agent, if such authority is not coupled with an interest ; (6) even though the 
authority is declared in express terms to be irrevocable. Hunt v. Rousmaniore's 
Adm'r, 8 Wheat. 174. See also Wilson v. Edmonds, 23 N. H. 360 ; Dick v. Page, 17 
Mo. 234 ; McDonald v. Black, 20 Ohio, 185. (c) The payment of money to an agent 
after the death of the principal, the death beine unknown to both parties, is a good 
pajrment, and binds the estate of the principiu. Cassiday v, McKenzie, 4 Watts k 
Seig. 282. BeepMt, § 518.] 

(a) Fellows v. Steamboat Company, 88 accordingly creates a substitute, the power 

Conn. 197; Tier v. Sampson, 86 Vt. 179. of such substitute is withdrawn by the 

So if an agent exhibit to third parties a death of his principal; for the attorney 

proper authority which is on its face a con- being accountaole for the acts of his sub- 

tinuing authority, and thev deal with him stitute, since he appoints him on his own 

on the strength of that authority, they are responsibility to do those things which he 

not affected by a revocation of the authoriU^ was authorized to do, it follows that, when 

until it is brought to their notice. Hatch his death occurs, the source of the substi- 

V, Coddington, 95 U. S. 48. tute's power is cut off and fails. The only 

(ft) Merry v. Lynch, 68 Me. 94. Where exception to this rule is where from express 

one constitutes two ]>ersons jointlv as his terms or from the nature of the power an 

agents, for a salary, and one of them be- inference arises, that the principu intends 

comes incapacitated for work, the principal Uie substitute shall act for him, notwith- 

may revoke the authority of both. SaBs- standing the revocation of the authority 

burv «. Brisbane, 61 N. Y. 617. of the original agent. Story, Agency, 

(c) Where one is made agent by a § 469; Peries v, Avcinena, 8 W. AS. 

power of attorney, which power contains (Pa.) 64, p. 79; Lehigh, ttc, Co. v. Mohr, 

a power of substitution, and the attorney 88 Pa. St. 228. 



PABT lY.] ABBITBATION AND AWARD. 61 



AEBITRATION AND AWARD. 

§ 69. SubmiMion to arbitratioii. A submission to arbitration 
niay be by parol, with mutual promises to perform the award ; or 
by deed or by rule of court ; (a) or by any other mode pointed out 
by statute. In the first case, the remedy may be by an action of 
as9umpsity upon the promise to perform the award ; in the second, 
it may be by debt for the penalty of the arbitration bond, or by 
covenanty upon the agreement or indenture of submission ; in the 
third case, it may be by attachmenty or by execution upon the judg- 
ment entered up pursuant to the rule of court, or to the statute ; 
and in any case it may be by an action of debt upon the award. 
An award duly made and performed may also be pleaded in bar 
of any subsequent action for the same cause.^ (i) 

1 In the simplest form of arbitration, namely, a verbal submission to a single arbi- 
trator, the declaration is as follows : '* For that on there were divers coutrovei'sies 

between the plaintiff and the said D, concerning their mutual accounts, debts, and 

dealings, and thereupon they then, at , by their mutual agreement, appointed one 

£ to hear and determine for them all the said controversies, and mutually promised 
each other to stand to, abide by, and perform the award of the said E thereupon. And 

the said £ afterwards, on , there heard the plaintiff and the said D, ana ac^'udged 

upon the premises, and awarded that the said D should pay to the plaintiff a balance 
of on demand, and publish [and notified the said parties of] the same. Yet," &c. 

The foUowing form is proper, where the agreement is in tenting vjiOunU seal, and 
the submission is to three persons, with power in anv two to make an award : " For 
that whereas on there were divers controversies between the plaintiff and the said 

(a) The power of a court of justice, with tlin||^ the amount of damage, or the time of 

the consent of the parties, to appoint arbi- paying it, or the like, will be sustained, 

trators and refer a case pending before it. Wood v. Humphrey, 114 Mass. 185; Ck>bb 

IS incident to all judicial administration v. N. E. Insurance Co., 6 Gray (Mass.), 

where the right exists to ascertain the 192; Trott v. City Insurance Co., 1 Cliff, 

facts as well as to pronounce the law. C. Ct. 489 ; Scott v, Avery, 5 H. of L. 

Newcomb v. Wood, 97 U. 8. 581. The Cas. 811. If a person agrees to pay an- 

snbmission and the award may both be by other for an article if it accomplishes a 

])arol. The law requires no particular form certain purpose, and a third party is to 

to establish a valid submission. When it make the test, his decision is in the nature 

is by parol, the fact must be established to of an award. Robbins v, Clark, 129 Mass. 

the satisfaction of the jury by a prepon- 145. 

derance of the evidence. Gayv. Waltman, (6) The tendency of modem jurispni- 

89 Pa. St 453. dence is to give force, conclusiveness, and 

Any agreement in a contract to submit effect to all awards, where there is no cor- 

any questions arising under the contract ruption or misconduct on the part of ref- 

to arbitration in such a way as to entirely erees, and where no deception has been 

oust the courts of jurisdiction will not be practised upon them. By Shaw, C. J., in 

supported at law or in equity, but those Fairchild v. Adams, 11 Cush. 550; Strong 

which are only preliminary or auxiliary v. Strong, 9 Id. 560; Eendrick v. Tarbell, 

thereto, such ag respect the mode of set- 26 Yt. 416; £bert v. £bert, 5 Md. 358. 



62 LAW OP EVIDENCE. [PAET IV. 

§ 70. Form of action. The action of debt on the award itself is 
sometimes preferable to any other form of action, inasmuch as, if 
judgment goes by default, it is final in the first instance, the sum 
to be recovered being ascertained through the medium of the 
award ; whereas in debt on the bond, breaches must be suggested 
and a hearing had pursuant to statutes ; and in assumpsit , and in 
covenant, the judgment by default is but interlocutory.^ But this 
is only where the award is for a single sum of money ; for if it is 
to do any other thing, the remedy should be sought in some other 
mode. Where the submission is by deed, with a penalty, the best 
form of action is debt for the penalty ; for, by declaring on Hie 
award, the plaintiff takes upon himself the burden of proving a 
mutual submission ; but, by declaring on the bond, he transfers 
the burden to the defendant, on whom it will then lie to dis- 
charge himself of the penalty, by showing a performance of the 
conditions.^ 

§ 71. Anthorlty of arbitrator. In proving an award, it must 
first appear that the arbitrators had student authority to make it.^ 

D concerning their mutual accounts, debts, and dealings, and thereupon they then, by 
their mutual M^ement in writing, submitted and referred said controversies [and all 
other mutual demands between them] to the final award and deteiminatiou of A, B, 
and C, and in and by said writing further agreed [here aet ovi any other mcUerial parts 
of the agreement] that the award of the said A, 6, and C, or any two of them, being 
duly made in the premises, [in writing, and ready to be delivered to the said parties 

or either of them on or before (or) and duly notified to the parties, as the ease 

may have been], should be bindinsr and final ; and the plaintiff and the said D then 
and there mutuaUy promised each other to stand to, abide by, and perform the 
award so made. Ana the plaintiff avers, that the said A, B, and C afterwards heard 
the plaintiff and the said D upon aU the matters referred to them as aforesaid, and 
thereupon, on the said [A and B, two of said] referees [the said C refusing to con- 
cur therein] made and pubUsIied their award [in writing] of and concerning the premi- 
ses [and then and there duly notified the said parties of the same], and did thereby 
award and finally determine that there remained a balance due from the said D to the 
plaintiff of , to be paid to the plaintiff [on demand], (&c. ). Yet," kc. 

The account in covenant contains averments similar to that in assumpsit. 

The count in debt on an avoard is as follows : '* For that whereas the said D on 

was indebted to the plaintiff in the sum of , upon and by virtue of an award 

made by one £, on a submission before that time made by the plaintiff and the said D 
to the award and determination of the said E^ concerning certain matters in differ- 
ence then depending between the plaintiff and the said D, and upon which said refer- 
ence the said £ awarded that the said D should pay to the plaintiff the sum of money 
aforesaid, upon request ; whereby, and by reason of the non-payment whereof, an ac- 
tion has accrued to the plaintiff, to demand and have of and from the said D the sum 
aforesaid. Yet the said D has not paid the same, nor any part thereof. The damage," 
&c. An aUegation of mutual promises to abide the awara would vitiate (Ms declaik- 
tion. Stttcliffe v, Brooke, 9 Jur. 1112 ; 14 M. & W. 855. 

^ Steph. N. P. ISO. In those of the United States, in which the damages, upon 
default, are made up forthwith by the court, or by a jury impanelled on the spot, with- 
out a writ of inquiry, this mode of remedy does not seem to possess any practical ad- 
vantage over others. 

* Ferrer v. Oven, 7 B. & C. 427, per Bayley, J. 

" Antram v. Chase. 15 East, 209. An attorney has no sufficient authority to refer 



PABT IT.] AfiBTCBATION AND AWABD. 63 

If the agreement of submission was in writing, it must be pro- 
duced, and its execution by all the parties to the submission 
must be proved.\a) Therefore, where four persons, being co- 
partners, agreed to refer all matters in difference between them, 
or any two of them, to certain arbitrators, who made an award in 
which they found several sums due to and from the partnership, 
and also divers private balances due among the partners from one 
to another; in an action between two of them upon the award to 
recover one of these private balances, it was held necessary to 
prove the execution of the deed of submission by them all ; the 
execution of each being presumed to have been made upon the 
condition that all were to be bound equally with himself.' If 
the submission was by rule of court, an office copy of tlie rule will 
be sufficient proof of the judge's order.' But if the agreement of 
submission is attested by witnesses, and its execution is denied, 
the rule or order by which the agreement was made a rule of court 
is not the proper evidence of the signature of the agreement, but 
it must be proved by the attesting witnesses.* 

§ 72. Bubmioalon. If the submission was by parol, it is material 
to prove not only that both parties promised to abide by the award, 
but that the promises were concurrent and mutual ; for otherwise 
each promise is but nttdum pactum.^ (5) 

§ 73. Umpire. If the award was made by an umpircy his 
appointment must also be proved. The recital of his authority 
in the award signed by himself and the arbitrators is not suffi- 
cient.^ He cannot be selected by the arbitrators by lot, without 

on behalf of an infiint plaintiff. BiddeU v, Dowae, 6 B. & C. 255. Nor has one part- 
ner anthoritv to bind tne firm. Stead v. Salt, 3 Bing. 101. Proof of the submiadon 
has been held necessary even after the hipse of forty years. Burghardt v. Turner, 12 
Eick. 534. 

1 Ferrer v. Oven, 7 B. & C. 427. 

* Autram v. Chase, 15 East, 209. See also Brazier v. Jones, 8 B. & C. 124. 

* still V, Halford, 4 Campb. 17 ; Gisbome v. Hart, 5 M. & W. 50. 

* Bemey v. Read, 9 Jar. 620 ; 7 Ad. & £1. n. s. 79. 

^ Keep V, Goodrich, 12 Johns. 397 ; Livingstone v. Rogers, 1 Gaines, 583 ; Kinfls- 
ton V. Phelps, Peake*a Gas. 227. An arbitrator is a competent witness to prove the 
matters sulnnitted to arbitration, and the awai-d made tnereon. Allen v. Miles, 4 
Barring. 234. And see Graham v. Graham, 9 Barr, 254. 

* StiU V. Halford, 4 Campb. 18. Nor is such recital necessary. Semble, Bison 
9. Berry, 4 Rand. 275. 

(a) The submission and award must be building is not such a question involving 

in writing in aU .cases where a contract in an interest in land as need be in writing 

relation to the subject-matter is required under the statute of frauds. Peabody v, 

to be in writine, but an oral submission Rice, 118 Mass. 81. 

and award on the question of how mach (6) Somerville v. Dickerman, 137 Mass. 

rent is due for the past occupation of a 272. 



64 LAW OP EYIDENOB, [PABT IV. 

consent of the parties.^ His appointment will be good, though 
made before the arbitrators enter on the business referred to 
them ;^ and they may well join with him in making the award.^(a) 
And if the arbitrators appoint an umpire without authority, yet, 
if the parties appear and are heard before him without objection, 
this is a ratification of his appointment.^ 

§ 74. Exeoution of the award. The next point in the order of 
evidence is the execution of the award ; which must be proved, as 
in other cases, by the subscribing witness, if there be any, and 
if not, then by evidence of the handwriting of the arbitrators.^ 
If the award does not purme the iubmissiotiy it is inadmissible. If, 
therefore, the submission be to several, without any authority in 
the majority to decide, and the award is not signed by all, it is 
bad.^ (6) And though a majority have power to decide, yet, in an 
award by a majority only, it must appear that all the arbitrators 
heard the parties, as well those who did not as tliose who did 
concur in the decision.^ (c) It will be presumed that all matters, 

1 Young V, Miller, 8 B. & C. 407; Wells v. Cooke, 2 B. & A. 218 ; Harris v. Mitch- 
ell, 2 Vern. 485 ; In re Cassell, 9 B. & C. 624 (overruling Neale v. Ledger, 16 East, 
51 ) ; Ford v. Jones, 8 B. & Ad. 248. But if the parties agree to a selection by lot, it 
will be good. In re Tunno, 5 B. & Ad. 488. 

2 Roe d. Wood v. Doe, 2 T. R. 644; Bates v, Cooke, 9 B. & C. 407; McKinstiy v. 
Solomons, 2 Johns. 67; Van Cortlandt v. Underbill, }7 Johns. 405. 

» Soulsby V. Hodgson, 3 Burr. 1474; a c. 1 W. Bl. 463; Beck v, Sargent 4 
Taunt. 282. 

* Matson v. Tower, Ry. & M. 17; Norton v. Savage, 1 Fairf. 456. 
» Anle, vol. i, §§ 569-581. 

* Towne v. Jaquith, 6 Mass. 46; Baltimore Tump. Case, 4 Binn. 481; Crofoot v, 
Allen, 2 Wend. 494. 

■J Short t?. Pratt, 6 Mass. 496; Walker v. Melcher, 14 Mass. 148. But upon a re- 
hearing, if one of the arbitrators refuses to attend, the others are competent to 
reaffirm the former award, Peterson v. Loring, 1 GreenL 64; though not to revise the 
merits of the case, Cumberland v. North Yarmouth, 4 GreenL 459. 

(a) ** An umpire is a person whom two in fact, in the same situation as a sole 

arbitrators, appointed and duly authorized arbitrator, and he is bound to hear and 

by parties, select to decide the matter in determine the case, in like manner as if it 

controversy, concerning which the arbitra- had been originally submitted to his deter- 

tors are unable to agree. His province is mination." Bigelow, C. J., Haven v, 

to determine the issue submitted to the Winnisimmet Co., 11 Allen (Mass.), 384. 
arbitrators on which they have failed to (b) Quimby v. Melvin, 28 N. H. 250. 
agree, and to make an award thereon, (c) Maynard v. Frederick, 7 Cue^. 

which is his sole award. Neither of the (Mass.) 247. In Bulson v. Lohnes, 29 

original arbitrators is required to join in N. Y. 291, where the submission was to 

the award, in order to make it valid and three arbitrators, with a provision that the 

binding on th^ parties. In the absence of award should be in writing, signed by the 

any agreement or assent by the parties to three, " or any two of them,*' and ready for 

the controversy, dispensing with a full deliveryby a certain day Qzed, Johnson, J., 

hearing by the umpire, it is his duty to says : " There can be no doubt that, at 

hear the whole case, and to make a dis- common law, before the Revised Statutes, 

tiuct and independent award thereon, as under such a submission, two arbitrators 

the result of his judgment. He stands, might lawfully meet, and hear Uie proofs 



PAST IV.] ARBITRATION AND AWARD. 65 

included within the terms of the submission, were laid before the 
arbitrators, and by them considered ; (a) but this presumption is 
not conclusiye, evidence being admissible to prove that a particular 
matter of claim was not in fact laid before them, nor considered 
in their award.^ 

§ 75. Notioe. If the submission required that notice of the 
award should be given to the parties, this notice, as it must in 
that case have been averred in the declaration, is the next point 
to be proved ; but if it was not required by the submission, both 
the averment and the proof are superfluous.' It is essential, 
however, to allege, and therefore to prove, that the award was 
published;^ and an award is published whenever the arbitrator 
gives notice that it may be held on payment of his charges.^ If 
the agreement is that the award shall be ready to be delivered to 
the parties by a certain day, this is satisfied by proof of the deliv- 
ery of a copy of the award, if it be accepted without objection on 
that account ; ^ (i) and if it be only read to the losing party, who 
thereupon promises to pay the sum awarded, this is sufficient 
proof of the delivery of the award, or rather is evidence of a 
waiver of his right to the original or a copy, even though it was 
afterwards demanded and refused.® 

§ 76. Demand. It is not necessary to allege, nor, of course, 
to prove, a demand of payment; except where the obligation is 

1 Mutin V. Thornton, 4 Esp. 180; Ravee v. Farmer, 4 T. R. 146; Webster v. Lee, 
5 Mass. 834; Hodges v. Hodges, 9 Mass. 820; Smith v. Whiting, 11 Mass. 445 (Rand s 
ed.), and cases cited in note (a); Bixby v. Whitney, 5 Greenl. 102. 

* Jnxon V. ThomhiU, Cro. Car. 132; Child v, Horden, 2 Bulstr. 144; 2 Sannd. 62 
Op n. (4), by Williams. 

* KingRley v. Bill, 9 Mass. 198; Thompson v. Mitchell, 85 Me. 281. 

* McArthur v. Campbell, 5 B. & Ad. 518; Musselbrook v. Dunkin, 9 Bing. 605. 
See also Mnnroe v. Allaire, 2 Cai. 820. 

* Sellick V. Adams, 15 Johns. 197; Low v. Nolte, 16 111. 475. In strictness, to 
ronstitnte the proper serrice of an award, so as to authorize an attachment for not 
performing it, a copy must not only be delivered, but the original must also, at the 
same time, be shown to the party. Loyd v. Harris, 8 M. G. & Sc 63. 

* Perkins v. Wing, 10 Johns. 143. 

and allegations of the parties, where the Watson on Arbitration, 115; Kyd on 

third bad notioe and refused to attend Awards, 106, 107; Green v. MiUer, 6 

and take part in the procettdings; and that Johns. 89; Crofoot v. Allen, 2 Wend, 

an award made by the two who heard the 495. ) It was held that, by the latter 

matters sabmitted, under such circum- danse of the submission, the entire an- 

stances, was a valid and binding award, thority was disjoined, so as to make it a 

This was settled in Ensland, at an early submission to the lesser number to hear, 

day, and upon full delioeration. (Good- as well as to determine.'* 
man 9. Sayrea, 2J8C. & Walk. 261; Dell- (a) Tallman v. Tallman, 5 Gush. (Mass.) 

ing V. Matchett, Willis, 215; 8. o. Barnes, 825; Clement v. Comstock, 2 Mich. 859. 
57; Sallows v. Girling, Cro. Jac. 278; (6) Gidley v, Gidley, 65 N. Y. 169. 

TOL. ir. 5 



66 O-AW OP EYIDKNCE. [PART IV. 

to pay a collateral sum upon request, as where the defendant 
promised to pay a certain sum upon request, if he failed to per- 
form an award ; in which case an actual request must be alleged 
and proved. In all other cases, where the award is for money 
which is not paid, the burden of proof is on the defendant to 
show that he has paid the sum awarded, the bringing of the action 
being a sufficient request.^ The averment of a promise to pay 
will be supported by evidence of an agreement to abide by the 
decision of the arbitrators.^ 

§ 77. Performanoe. Where the thing to be done by the de- 
fendant depends on a condition precedent^ to be performed by the 
plaintiff, such performance must be averred and proved by the 
plaintiff. And if by the terms of the award acts are to be done 
by both parties on the same day, as where one is to convey land, 
and the other to pay the price, there, in an action for the money, 
the plaintiff must aver and prove a performance, or an offer to 
perform, on his part, or he cannot recover ; for the conveyance, 
or the offer to convey, from the nature of the case, was precedent 
to the right to the price.* 

§.78. Defence. In defence of an action on an award, or for not 
performing an award, the defendant may avail himself of any 
material error or defect, apparent on the face of the award ; such 
as excess of power by the arbitrators;* defect of execution of 
power, as by omitting to consider a matter submitted ; ^ (a) want of 

1 Birks v. Trippet, 1 Saand. 82. 8S» and n. (2), by WiUiams. If the reference is . 
general, and the arbitrator directs the payment to be made at a certain time and place, 
this direction may be rejected aa sarplusage. Rees v. Waters, 4 D. & L. 567; 16 M. 
& W. 268. 

« Efner v, Shaw, 2 Wend. 667. 

» Hay V, Brown, 12 Wend. 691. 

^ Morgan v. Mather, 2 Ves. 18; Fisher v. Plmbley, 11 East, 189; Macomb v. Wil- 
bur, 16 Johns. 227; Jackson v. Ambler, 14 Johns. 96. See also Commonwealth v. Pe- 
jepscot Propr*s, 7 Mass. 899. 

* Mitchell 0. Stavelv, 16 East, 58; Bean v. Famam, 6 Pick. 269. But not unless 
the omission is material to the award. Davy v. Faw, 7 Cranch, 171; Harper v. Hough, 
2 Halst. 187; Doe v. Homer, 8 Ad. k EL 285. 

{a) In submissions to arbitration a Willes, 270, says: "Were it not for the 

clause is often inserted, called the "ita cases, I should be of opinion that when aU 

qtioad" clause, which is, in effect, a con- matters are submitted, though without 

dition that the award shall not be valid such condition, all matters must be de- 

unless it decides all the questions sub- termined, because it plainly was not the 

mitted to it ; whether a partial award, intention of the parties that some matters 

under a submission which has no such only should be determined, and that they 

clause in it, is valid or not, depends on should be at liberty to go to law for the 

the construction of the submission. The rest*' The prevalent rule is thus stated by 

earlier decisions were in favor of the valid- Morse, on Aroitration, p. 842. "The court 

ity, but Willes, J., in Bradford v. Bryan, will look at the language of the submission 



PABT IV.] ARBITBATION AND AWARD. 67 

certainty to a common intent;^ (a) or plain mistake of law as allow- 
ing a claim of freight, where the ship had never broken ground ; ^ 
and the like. In regard to corruption or other misconduct or 
mistake of the arbitrators in making their award, the common 
law seems not to have permitted these to be shown in bar of an 
action at law for non-performance of the award ; but the remedy 
must be pursued in equity.® But in this country, in those States 
where the jurisdiction in equity is not general, and does not, 
afford complete relief in such cases, it has been held, that, if arbi- 
trators act corruptly, or commit gross errors or mistakes in mak- 
ing their award, or take into consideration matters not submitted 
to them, or omit to consider matters which were submitted, or 
the award be obtained by any fraudulent practice or suppression 
of evidence by the prevailing party, the defendant may plead and 
prove any of these matters in bar of an action at law to enforce 

1 Jadkflon v. Ambler, 14 Johns. 98. 

* Kelly V. Johnson, 8 Wash. 46. See also Gross v. Zorger, 8 Yeates, 521 ; Ross 
«. Overton, 8 Call, 800; Morris v. Ross, 2 H. &M. 408; Greenongh v. Rolfe, 4 N. H. 
867; Ames v. Milward, 8 Taunt. 687. 

* Watson on Arbitrations, p. 168, in 11 Law Lib. 79; Shepherd v. Watrous, 8 
Cainee, 166; Barlow v. Todd, 8 Johns. 867; Cranston v. Kennedy, 9 Johns. 212; Van 
Oortlandt v. Underbill, 17 Johns. 405; Kleine v. Catara, 2 Gallis. 61; Sherron 
V. Wood, 6 Halst. 7; Newland v. Douglas, 2 Johns. 62. In practice, where no suit is 
pending, arbitrations are now generally entered into under the statutes, enacted for 
the purpose of making the submission a rule of court; and in all cases where the sub- 
mission is made a rule of court, the court will generally administer relief wherever it 
could be administered in equity. 

in its ervery part, and, from a consideration ence. Giddings v. Hadaway, 28 Vt 842. 
of the whole, wUl determine the matter of An award is not valid which provides for 
intent. If the reasonable construction the payment, by one of the parties to l^e 
appears to be that the parties . intended submission, of a certain sum, after making 
to have everything decided, if anything deductions therefrom of sums not fixed by, 
should be, then a decision of all matters or capable of being ascertained from, the 
submitted will be imperatively required; award. Fletcher v. Webster, 6 Allen 
but if anything in the submission indicates (Mass.), 566. In Waite v. Barry, 1 2 Wend, 
a contraiT purpose, a partial award will be (N. Y.) 877, Sutherland, J., said: '* It is 
sustained. essential to the validity of an award; that it 
(a) Clark v. Burt, 4 Cnsh. (Mass. ) 896; should make a final disposition of the mat- 
Ross V, Clifton, 9 Dowl. Prac. Cas. 860. ters embraced in the submission, so that 
An award defining a boundary will be de- they may not become the subject or occa- 
feated by proof tnat there were no such sion of future litigation between the parties. 
monuments as are referred to in the award. It is not indispensable that the award 
for the purpose of locating the boundary, should state, in words or figures, the pre- 
But a want of certainty in the award in cise amount to be paid. If nothing remain 
this respect alone will not affect another to be done, in order to render it certain 
portion of the same award, determining and final, but a mere ministerial act, or an 
that one party had trespassed upon the arithmetical calculation, it will be good." 
land of the other, and awarding to the Cf. Wakefield v, Llanelly Railway & Dock 
latter party his damages and cost^ though Company, 11 Jur. v, s. 456; Tidswell, 
the tresmss was upon the same land to ii» rs, 83 Bear. 218; Ellison v. Bray, 9 
which tne disputed boundary had refer- L. T. N. 8. 780. 



68 LAW OP EVIDENCE. [PABT IV. 

the award.^ (a) And though arbitrators, ordinarily, are not bound 
to disclose the grounds of their award,* yet they may be examined 
to prove that no evidence was given upon a particular subject;^ 
or, that certain matters were or were not examined, or acted on 
by them, or that there is mistake in the award ; ^ and also as to 
the time and circumstances under which the award was made,^ 
and as to any facts which transpired at the hearing.^ (i) Fraud 
• in obtaining the submission may be given in evidence under the 
plea of non a$9ump$it^ or nil debet, by the common law.^ (0) 

1 Bean v. Famam, 6 Pick. 269; Brown v. Bellows, 4 Pick. 188; Parsons v. Hall, 
8 Greenl. 60; Boston Water Power Ca v. Gray, 6 Mete. 181; Williams v, Pasehall, 
8 Yeates, 564. 

« AnU, vol. i § 249. 

* Martin v. Thornton, 4 Esp. 180. 

^ Roop V. Bnibacker, 1 Rawle, 804; Alder v, Sayill, 5 Tannt. 454; Zeiglerv. Zei^ler, 
2 8. & R. 286. If, upon a submission of " all matters in difference,'* the parties omit to 
call the attention of the arbitrator to a matter not necessarily before him, they cannot 
object to the award on the ground that he has not adjudicated upon it. Bees v. Wa- 
ters, 16 M. &W. 263. 

^ Woodbury v. Northy, 3 Oreenl. 85; Lincoln v, Taunton Hannf. Co., 8 Cuah.415. 

* Gregory v, Howard, 8 Esp. 113. 
T Sackett v. Owen, 2 Ghitty, 89 

(a) Strong v. Strong, 9 Gush. (Mass.) 8 Dowl. 669; Halstead v. Seaman, 82 

560; Lincoln v. Taunton Copper Manuf. K. Y. 27. 

Co., 8 Id. 415; Leavitt v. Comer, 5 Id. 129; {b) They may testify to any facts tend- 

French v, Richardson, Id. 450; Bi-iges v, ing to show that the award is void for 

Smith, 20 Barb. (N. Y.) 409; Frencli v, le^ cause. Strong v. Strong, 9 Gush. 

New, Id. 481; Taylor v. Sayre, 4 Zabr. (Mass.) 560, as that they did not suppose 

(N*. J.) 647; Tncj v, Herrick, 25 N. H. the reference was final. Huntsman v. 

881. See also Morgan v. Smith, 9 Mees. Nichols, 116 Mass. 521. The testimony 

& W. 427; Angus v. Bedford, 11 Id. 69; of referees is admissible to identify matters 

Cramp v. Adney, 8 Tyrwhitt, 870. An submitted to them, and to show that they 

award made in pursuance of a reference acted on them; but a written submission 

under a rule of court will not be set aside or award cannot be varied or explained by 

for alleged mistakes of law on the part of parol. Buck v, Spoffbrd, 85 Me. 526. 

the referees, unless they have themselves Declarations by an arbitrator, some days 

been misled, or unless they refer questions after making and publishing his award, 

of law to the court. Fairchild v. Adams, are incompetent to impeach it. Hnbbell 

11 Gush. (Mass.) 549 ; Bigelowv. Newell, v. Bissell, 2 Allen, (Mass.) 196. 

10 Pick. ( Mass.) 848. When all claims and (c) It has been considered, in courts of 

demands between the parties are submitted Jaw in some States, contrary to the gen- 

to arbitration, it will be intended that the eral practice, that all defences to awimis, 

arbitrators have decided all matters sub- where the submission and award were in 

mitted to them, although they do not so writing and under seal, for matters not 

state in their award, unless the contrary apparent npon the papers, must be pursued 

api)ears. Tallman v. Tallman, 5 Oush. in equity. And this rule has been consid- 

iMass.) 825; Clement v. Comstock, 2 ered to rest, as to mistake of the arbitrators, 
lich. 859. An award made twelve years and irregularity of conduct by them, upon 
after the submission is invalid, unless the same ground that courts have refused 
suflBcient reason is shown for the delay, to set aside a written contract between par- 
Hook V, Philbrick, 28 N. H. 288. The ties in a trial at law, upon the allered 
refusal of an arbitrator to examine wit- grounds that, by mistake, the contract did 
nesses is sufficient misconduct on his not read as it was intended to. And in 
))art to induce the court to set aside his regard to the conduct of the arbitrators, 
award, thouffh he thinks he has sufficient it has been considered, in some of the 
evidence witnout them. Phipps v. Ingram, cases certainly, that the arbitraton were 



PABT lY.] ARBITRATION AND AWARD. 69 

§ 79. Revooation. The defendant may also show, that the au- 
thority of the arbitrators was revoked before the making of the 
award. And the death of either of the parties to a submission at 
common law, before the award made, will amount to a revocation;^ 
unless it is othei-wise provided in the submission.^ Whether 
bankruptcy is a revocation, is not clearly settled.* Where the 
submission is at common law, and even where it is under the 
statute, but is not yet made a rule of court, it seems that either 
party may revoke the authority of the arbitrators ; though he may 
render himself liable to an action for so doing.^ (a) But if the 
submission is by two, a revocation by one only is void.^ If the 

» Ednrands v. Cox, 2 Tidd*8 Pr. 877; 8. c. 8 Doug. 406; s. c. 2 Chitty, 422; Cooper 
V, Johnson, 2 B. & Aid. 394; Potto v. Ward, 1 Marsh. 866; Tonssaint v. Hartop, 7 
Taunt 571. But if the submiasion is under a rule of court, and the action survives, 
it is not revoked by death. Bacon v. Crandon, 15 Pick. 79. 

* Macdougall v, Robertson, 2 Y. & J. 11 ; b. c. 4 Bing. 435. 

* ^larsh V, Wood, 9 B. & C. 659; Andrews v. Palmer, 4 B. & Aid. 450; Ex parU 
Bemshead, 1 Rose, 149. 

« Skee 9. Coxon, 10 B. & C. 488; Milne v. Gratrix, 7 East, 608; Clapham v, Hig- 
ham, 1 Bing. 27; 7 Moore, 703; Greenwood v. Misdale, 1 McCl. & Y. 276; Brown 
V. Tanner, Id. 464; s. c. 1 C. & P. 651; Warburton v. Storer, 4 B. & C. 103; Vynior's 
Case, 8 Co. 162; Freto v. Frets, 1 Cow. 385; Allen v. WatKon, 16 Johns. 205; Fishery. 
Pimbley, 11 East, 187; Peters v. Craig, 6 Dana, 307; Marsh v. Bulteel, 5 B. & Aid. 
607 ; Grazebtook v. Davis, 5 B. & C. 534, 538; Brown v. Leavitt, 13 Sbepl. 261; 
Marsh p. Packer, 5 Washb. 198. 

* Robertson v, McNeUl, 12 Wend. 678. 

necessary parties to any proceedings based at the request of one of the parties, to 

upon such a chaige. Mere mistokes, or whom the substance of the result at which 

irregularity, short of positive corruption, they arrived was known, and these facto 

might not require any explanation at the were not communicated to the other party, 

hands of the arbitrators. And it is diffi- So, also, if they decided upon the matters 

cult to perceive how, in any case, they are submitted to them before giving notice of 

proper parties to a litigation, in regard to a hearing to one of the parties. Conrad v. 

the validity of the award, and we doubt Massasoit Insurance Co., 4 Allen (Mass.), ' 

whether, upon principle, any corruption 20. See Wilson v. Concord Railroad Com- 

in the arbitrator or judge, unless with the pany, 8 Allen (Mass.), 194. See Tidswell, 

procurement or privity of the prevailing in re, 83 Beav. 213; Brook et a/., in re, 

party, is any defence to an award, in a 15 C. B. n. s. 403 ; 10 Jur. N. s. 704 ; 

court of law. And if the corruption of Proctor v. Williams, 8 C. B. n. a. 886; 

the arbitrator be with the privity of the Angus v. Smythies, 2 F. & F. 381. It 

party, it is fraud, and is equally a defence seems that arbitrators may decline to hear 

at law and in equity, as well to special- counsel. Macqueen, in re, 9 C. B. N. s. 

ties as simple contracts. But this is per* 793. 

hajis not yet determined as to awards. (a) A submission to arbitrators, if it is 

See Woodrow v. O'Connor, 28 Vt. 776. not founded on any consideration, may bo 

An award which is operative as a final and revoked by the party submitting at any 

conclusive adjustment of all matters be- time before the awanl is delivered; but it 

tween the parties, is not vitiated by an is not so when it is made under an agree- 

order requiring them to execute mutual ment founded on sufficient consideration, 

releases. Shepherd v. Bricgs, 28 Vt. 81. Paist v, Caldwell, 75 Pa. St. 161. When 

An award is rightly rejecteo^ if» previously the submission has been made a rule of 

to the selection of uie arbitrators, a portion court, it cannot be revoked, though not 

of them made an ex parte examination of founded on any consideration. Lewis's 

the matter aftorwards submitted to them. Appeal, 91 Pa. St 869. 



70 LAW OP EVIDENCE. [PABT IV. 

reference is made an order of a court of equity, the revocation of 
the authority of the arbitrators is a high contempt of the court, 
and, upon application of the other party, will be dealt with ac- 
cordingly.^ If a ftme sole, having entered into a submission to 
arbitration, takes a husband, the marriage is a revocation of the 
submission; but it is also, like every other revocation, by the 
voluntary act of the party, a breach of the covenant to abide by 
the award.* 

§ 80. DisabUity. The defendant may also show, in defence, 
that one or more of the parties to the submission was a minor ^ 
or a feme covert^ and that therefore the submission was void for 
want of mutuality.^ So, he may show that the arbitrators, before 
making their award, declined that office ; for thereupon they ceased 
to be arbitrators.* (a) 

§ 81. Pleadings. Where the action is assumpsit upon a submis- 
sian hy parole the plea of non assumpsit^ where it is not otherwise 
restricted by rules of court, puts in issue every material aver- 
mcnt. Under this issue, therefore, the defendant may not only 
show those things which affect the original validity of the submis- 
sion, or of the award, such as infancy, coverture, want of authority 
in the arbitrators, fraud, revocation of authority, intrinsic defects 
in the award, and, if there is no other mode of relief, extrinsic 
irregularities also, such as want of notice and the like ; but he 
may also show anything which at law would defeat and destroy 
the action, though it operate by way of confession and avoidance, 

1 Haggett V, Welsh, 1 Sim. 184; Harcourt v. Ramsbottom, 1 Jac. & Walk. 511. 

* Chamley v, Wmatanley, 5 East, 266 ; Andrews v. Palmer, 4 B. & Aid. 252. 

> Cavendish v, , 1 Chan. Cas. 279 ; Biddell v. Dowse, 6 B. & C. 255. But it 

is not a good objection, that one was an executor or administrator only, for he has au- 
thority to submit to arbitration. Coffin v. Cottle, 4 Pick. 454 ; £iean v, Famam, 6 
Pick. 260 ; Dickey v. Sleeper, 18 Mass. 244. 

« Relyea v. Ramsay, 2 Wend. 602 ; Allen v. Watson, 16 Johns. 208. 

(a) In debt upon an award of arbitra- mation of a contract between the parties 

tors, it is proper to show by parol, under to the submission; and if the submission 

the general issue, that the arbitrators had make no provision for an award on Sunday, 

no power to make and publish their award and the parties complete the hearing before 

at tne time and in the manner they did; the arbitrators previous to twelve o'clock 

and therefore, under that plea, tiie ques- on Saturday night, and then cease to 

tion may be raised, whether an award is exercise any control as to the time of mak- 

valid which was made on Sunday mom- ing the award, its validity as to them wiU 

ing, after a hearing completed just before not be affected either at common law, or 

twelve o'clock on Saturday night, and under the Vermont statute, regulating the 

parol evidence may be introduced to show observance of the Sabbath, by tne fact that 

that it was so made. A judgment rendered the arbitrators make and publish their 

on Sunday is void at common law; but an award at three o'clock on Sunday morning, 

award is not a judgment, but the consum- Blood v. Bates, 81 Vt. 147. 



PABT lY.] ARBITRATION AND AWARD. 71 

such as a release, payment, or performance.^ And sometimes, 
where assumpsit has been brought upon the original cause of 
action, either party has been permitted to show the submission 
and award under the general issue, as evidence of a statement of 
accounts and an admission of the balance due, or of a mutual 
adjustment of the amount in controversy.^ (a) 

^ Stephen on Pleading, pp. 179-182 (Am. ed. 1824) ; Taylor v, Coiyell, 12 S. & R. 
248, 251 ; Allen v. Wataon, 16 Johns. 208. 

s Keene v. Batshore, 1 Esp. 194 ; Kingston v, Phelps, Peake's Gas. 228. 

(a) Arbitraton are not boond to follow a speedy determination of the controrersy, 

the strict roles of law, or even what they a submission to arbitration embraces the 

deem to be such, unless it be a condition power to decide questions of law, unless 

of the submission that they shall do so ; that presumption is rebutted by some ez- 

and when there is no such condition ception or limitation in the submission. 

courts will not refuse to enforce an award. We are not aware that there is anything 

on the ground that the arbitrators have contrary to the policy of the law, in per- 

not followed strictly legal rules in hearing mitting parties thus to substitute a domes- 

and deciding a case, unless it be shown tic forum for the courts of law, for any 

that thereby manifest injustice has been soodreasonysatisfactoiy to themselves; and 

done. Kemelee v. Hall, 81 Vt. 588. having done so, there is no hardship in 

** We think the more modem cases adopt holduur Uiem bound by the result" Shaw, 

the principle, that, inasmuch aa a judicial C. J., Boston Water rower Co. v. Gray, 6 

decision upon a question of right, by Met. (Mass. ) 167. See Estes v. Mansfield, 

whatever forum it is made, must almost 6 Allen (Mass.), 69; and Haigh v. Haigh, 8 

necessarily involve an application of cer- Jnr. N. s. 988. See also Horton v. Sayer, 5 

tain rules of law to a particular statement Jur. n. s. 989, as to agreements of parties, 

of facta, and as the great purpose of a sub- that all disputes that may arise between 

mission to arbitration usually Ib, to obtain them shall be referred to arbitration. 



72 LAW OF EVIDENCB. [PABT lY. 



ASSAULT AND BATTERY. 

§ 82. DefinitioiL An assault is defined to be an inchoate vio- 
lence to the person of another, with the present means of carrying 
the intent into effect.^ Mere threats alone do not constitute the 
offence : there must be proof of violence actually offered.^ Thus, 
if one ride after another, and oblige him to run to a place of se- 
curity to avoid being injured ; ^ (a) or throw at him any missile 
capable of doing hurt with intent to wound, whether it hit him or 
not ; ^ or level a loaded gun, or brandish any other weapon in a men- 
acing manner, within such a distance as that harm might ensue ;^ 
or advance, in a threatening manner, to strike the plaintiff, so that 
the blow would have reached him in a few seconds if the defendant 
had not been stopped ; ^ in all these cases the act is an assault. So, 
if he violently attack and strike with a club the horse which is har- 
nessed to a carriage, in which the plaintiff is ridingJ But to stand 
in another's way and passively to obstruct his lawful progress, as 
an inanimate object would, though done by design, is no assault.^ 

§ 88. Intent to harm. The intention to do harm is of the es- 
sence of an assault;^ and this intent is to be collected by the 
jury from the circumstances of the case. Therefore if the act of 
the defendant was merely an interference to prevent an unlawful 
injury, such as to separate two combatants ; ^^ or if, at the time of 

1 1 Steph. N. P. 208 ; Fincli's Law, 202 ; Stephens v. Myets, 4 C. & P. Si9. And 
see also past, vol. iii. § 59. 

> Stephens v. Myers, 4 0. & P. S49 ; Tuberville v, Sayage, 1 MocL S. The dec- 
laration for an assault and battery is thus : " In a plea of trespass ; for that the 

said (defendant) on the day of , at , in and upon the plaintiff, with 

force and arms, made an assault, and him, the said plaintiff, then and there did b^t, 
wound, and iU treat " {hen may be stated any special matter of aggravation], ** and 
other wrongs to the plaintiff, then and there did against the peace. To the damage," 
kc The material allegations in an indictment are the same as in a civil action. 

• Morton v. Shoppee, 3 C. & P. 373. * 2 Hawk. P. 0. b. 1, c. 62, § 1. 

* Ibid. If the gun is not loaded, it is no assault Blake v: Barnard, 9 C. & P. 
626 ; fieg. v. James, 1 C. & K. 580. 

* Stephens v, Myers, 4 C. & P. 849, per Tindal, C. J. 

7 De Marentille v. Oliver, 1 Penning. 880, per Pennington, J. Taking indecent 
liberties with a female pupil. Rex v. Nichol, Russ. & Ry. 180 ; or wiUi a female 
patient. Rex v. Rosinski, Ry. & M. 19 ; though unresisted, is an assault 

• Jonea v. Wylie, 1 C. & K. 257. * But as to battery, see wfra, § 94. 
^ Griffin V. Parsons, 1 Selw. N. P. 25, 26. 

(a) See State v. Martin, 85 N. C. 508. 



PABT IV.] ASSAULT AND BATTERY. 78 

menacing violence, he used words showing that it was not his in- 
tention to do it at that time, as in the familiar example of one's 
laying his hand on his sword, and saying that if it were not assize- 
time he would not take such language ; ^ or if, being unlawfully 
set upon by another, he puts himself in a posture of defence by 
brandishing his fists or a weapon,^ — it is no assault. So, where 
one threw a stick, which struck the plaintiff, but it did not ap- 
pear for what purpose it was thrown, it was presumed that it was 
thrown for a proper purpose, and that the striking of the plaintiff 
was merely an accident.^ 

§ 84. Battery. A battery is the actual infliction of violence on 
the person. This averment will be proved by evidence of any 
unlawful touching of the person of the plaintiff, whether by the 
defendant himself, or by any substance put in motion by him. 
The degree of violence is not regarded in the law : * it is only 
considered by the jury in assessing the damages in a civil action, 
or by the judge in passing sentence upon indictment, (a) Thus, 
any touching of the person in an angry, revengeful, rude, or in- 
solent manner ; * spitting upon the person ; ® jostling him out of 
the way ;^ pushing another against htm ;® throwing a squib or any 
missile or water upon him;^ striking the horse he is riding, 
whereby he is thrown ; ^^ taking hold of his clothes in an angry or 
insolent manner, to detain him,^^ — is a battery. So, striking 
the skirt of his coat or the cane in his liand,^^ is a battery ; for 
anything attached to the person partakes of its inviolability.^* 

1 Bull. N. P. 16 ; Tuberyille v. Savage, 1 Mod. 8 ; 2 Keb. 545 ; Commonwealth 
9. Eyre, 1 S. fc R. 847. 

s Moriarty v. Brooks, 6 C. & P. 684. * Alderson v. Waistell, 1 C. & E. 858. 

* Leame v. Bray, 8 East, 602. Cutting off the hair of a parish pauper by the 
parish officers, against her will, was held a battery. Ford v. Skinner, 4 C. & P. 239. 

* 2 Hawk, P. C. b. 1, c. 62, § 2 ; 4 Bl. Comm. 120. 

* 1 East, P. C. 406 ; Beg. v, Cotesworth, 6 Mod. 172. 

7 BuU. N. P. 16. * Cole v. Turner, 6 Mod. 149. 

» Scott V, Shepherd, 2 W, Bl. 892 ; s. c. 8 Wils. 408 ; PurseU v. Horn, 8 Ad. & El. 
605 ; Simpson v. Morris, 4 Taunt 821. 

w DodweU V. Burford, 1 Mod. 24. 

^1 United States v. Ortega, 4 Wash. 534 ; 1 Baldw. 600. 

^ Respnblica v. De Longchamps, 1 DalL 111, 114, per McEean, C. J. ; The State 
V. Davis, 1 HiU (& C), 46. 

u Ibid. 

(a) In order to explain to the jury the the person who took it, and he testifies 

nftture of the battery and ito effect upon that it gives a correct representation of 

the plaintiff, a photograph of the plain- what it purporta to represent, and was 

tiff's Dack, showing the marks of the stripes taken soon after the battary complained 

inflicted \y the defendant, is competent of. Beddin v. Gates, 52 Iowa, 210. 
evidence if the photograph is identified by 



74 LAW OP EVIDENCB. [PAfiT IV. 

§ 85. NegUgenoa Unlawfol intent And here also the plaintiff 
must come prepared vrith evidence to show, either that the inten- 
tion was unlawful, or that the defendant was in fault ; for if the 
injury was unavoidable, and the conduct of the defendant was 
free from blame, he will not be liable.^ Thus, if one intend to 
do a lawful act, as to assist a drunken man, or prevent him from 
going without help, and in so doing a hurt ensue, it is no bat- 
tery.* (a) So, if a horse by a sudden fright runs away with his 
rider, not being accustomed so to do, and runs against a man ; ^ (&) 
or if a soldier, in discharging his musket by lawful military com- 
mand, unavoidably hurts another,^ — it is no battery ; and in such 
cases the defence may be made under the general issue.^ But, to 
make out a defence under this plea, it must be shown that the 
defendant was free from any blame, and that the accident resulted 
entirely from a superior agency. A defence which admits that the 
accident resulted from an act of the defendant must be specially 
pleaded.^ Thus, if one of two persons fighting unintentionally 
strikes a third ; ^ or if one uncocks a gun without elevating the 
muzzle, or other due precaution, and it accidentally goes off and 
hurts a looker-on ; ® or if he drives a horse too spirited, or pulls 
the wrong rein, or uses a defective harness, and the horse taking 
fright injures another,® (c) — he is liable for the battery. But if 
the injury happened by unavoidable accident, in the course of an 
amicable wrestling-match, or other lawful athletic sport, if it be 

1 1 Bing. 218. per Dallas, C. J. ; 1 Com. Dig. 129, tit Battery, A. ; 1 Chitty on 
PL 120. See infra, § 94, and tit Damages, §§ 269, 271. 

s Bull. N. P. 16. s Gibbons v. Pepper, 4 Mod. 404 ; BnlL N. P. 16. 

« Weaver v. Ward, Hob. 134. » 4 Mod. 406. 

• HaU V, Feamley, 8 Ad. & EL N. 8. 919. See infra, §§ 94, 622, 625 ; 1 Chitty, 
PL 437 ; Knapp v, Salsbnry, 2 Camp. 500 ; Boss v. Litton, 5 C. & P. 407. 

7 James v. Campbell, 5 C. & P. 372. 

B Underwood v. Hewson, Bull. N. P. 16 ; s. o. 1 Stra. 596. So, if he negligently 
discharges a gun. Dickenson «. Watson, T. Jones, 205 ; Taylor v. Rainbow, 2 Hen. 
& Munf. 423 ; Blin v. Campbell, 14 Johns. 432. 

* Wakeman v. Bobinson, 1 Bing. 213. 

(a) In Johnson v. McConnel, 15 Hun the person assaulted, it did not constitute 

(N. Y. ), 293, where it was proved that the an actionable assault, was erroneous, 

plaintiff, while intoxicated, engaged in a (6) Brown v. Collins, 58 N. H. 442. 

scuffle with a third party, and we defend- This case has some observations worthy 

ant interfered to keep the plaintiff quiet, of note on the leading case upon this point 

and in the subsequent scuf^ the plaintiff of Fletcher v. Rylands, L. R. 8 H. of L. 

fell and broke his leg, it was held that an 880. See also Holmes v, Mather, 23 W. 

instruction of such a nature that the jury R. Exch. 869; 8. a 16 Am. Rep. 884; 

might be led by it to believe that the jpos^, § 94. 

assault must be made in anger, and that (c) Kennedy «. Way, Sup. Ct Pa., 18 

if done in entire good nature, and from Law Reporter, 184. 
good motives, though against the will of 



PAET IV.] ASSAULT AND BATTERY. 76 

not dangerous, it may be justified.^ (a) If it were done in a 
boxing-match, or fight, though by consent, it is an unjustifiable 
battery ;^(i) the proof of consent being admissible only in miti- 
gation of damages.^ 

§ 86. Time and plaoe not eMentiaL Neither the time nor the 
placBy laid in the declaration, are ordinarily material to be proved. 
Evidence of the trespass cootmitted previous to the commencement 
of the action is sufficient ; ^ and it may be proved in any place, the 
action being personal and transitory.^ But if the declaration con* 
tain only one count, and the plaintiff prove one assaiUt^ he cannot 
afterwards waive that, and prove another.^ Nor can he give evi- 
dence of a greater number of assaults than are laid in the declara- 
UonJ If the action is against several for a joint trespass, the 
plaintiff, having proved a trespass against some only, cannot 
afterwa^s be permitted to prove a trespass done at another time, 
in which all or any others were concerned ; but he is bound, by 
the election which he has made, to charge some only ; for, other- 
wise, some might be charged for a trespass in which they had no 
concern.^ So, if he prove a trespass against all the defendants, he 
cannot afterwards elect to go upon a separate trespass against 
one.^ And if he prove a trespass against some, he is bound to 
elect, before the defendants open their case, against which defend- 
ants he will proceed.^^ 

§ 87. 8uffioi«nt to prove aaaanlt. Nor is it necessary to prove 
an cLctual battery^ though it must be alleged in the declaration ; 
for, upon proof of an assault only, the plaintiff will be entitled 
to recover.^ 

§ 88. Consequential Injuries. If the plaintiff would recover for 
conseqtiential if^uTie%^ they must be specially laid in the declara- 

1 6 Cool Dig. 795, tit Pleader, 8 M, 18 ; Foster, Cr. L. 259, 260. 
« Boulter v, Clark, Bull. K P. 16 ; Stout v. Wren, 1 Hawks, 420. 
' Logan V, Austin, 1 Stew. 476. See in/Vo, tit Damaf;es. 
« 1 Saund. 24, n. (1), by Williams ; Bull. N. P. 86 ; BrownL 288. 

* Mnetyn v. Fabrigi^ Cowp. 161. 

* Stante v. Pricket, 1 Campb. 478. "^ Gillon v. Wilson, 8 B. Monr. 217. 

* Sedley «. Sutherland, 3 £sp. 202 ; Hitchen v. Teale, 2 M. & Rob. 80. But see 
Boper V, Harper, 5 Scott, 250. 

* Tait V. Harris, 1 M. & Rob. 282, per Ld. Lyndhnrst, Gb. B. In Hitchen «. 
Teale, 2 M. & Rob. 30, Patteson, J., said he could not veiy well understand the prin- 
ciple on which this decision was founded. 

!• Howard p. Newton, 2 M. & Rob. 509. 

u Bra Abr. Tresp. pi. 40 ; 40 £. IIL 40 ; 1 Steph. N. P. 218 ; Lewis v, Hoorer, 
8 Blackf. 407. 

(a) Fitzgerald v. Gavin, 110 Mass. 158. Q>) Adams v. Waggoner, 38 Ind. 681. 



I LAW OP EVIDENCE. [PABT IV. 

tion^ under a per quod} Of these, the loss of the society of his 
wife, or of the services of his servant, are examples.* The relar 
tion of husband and wife is proved in such cases, by evidence of 
a marriage de facto. If the action is for assaulting and beating 
the plaintiff's son,^ or for seducing his daughter, per quod, it is 
sufficient to show that the child lived in the parent's family, with- 
out proof of actual service ; ^ or, if the child lived in a neighbor's 
family, it is sufficient to prove that he also daily and ordinarily 
performed services for the parent.^ If the daughter is emanci- 
pated, and resides apart from the parent's family, the parent 
cannot recover.^ But if the daughter actually resides with her 
father, even though she be a married woman, if she lives apai-t 
from her husband, the father may maintain the action.^ In all these 
cases, it is sufficient to prove the relation of master and servant 
de facto ; and proof of very slight acts of service is sufficient.® 

§ 89. Same snbjeot. It is not, however, necessary to state spe- 
cially any matters which are the legai and natural consequence of 
the tortious act ; for all such consequences of his own actions 
every man is presumed to anticipate ; and as one of the ob- 
jects of the rule, which requires particularity of averment in 
pleading, is, to give the other party notice that he may come 
prepared to meet the charge, such particularity is in these cases 
superfluous. The plaintiff, therefore, under the usual allegation 
of assault and battery, may give evidence of any damages natu- 
rally and necessarily resulting from the act complained of .^ But 
where the law does not imply the damage, as the natural and 

^ Pettit V. Addington, Peake's Cas. 62. But the plaintiff cannot recover in this 
fonn for injury for which a separate action lies, either by himself or by another. 
1 Ghitty on PL 847-349 ; WaUace v. Hardacre, 1 Campb. 45, 49 ; BuU. N. P. 89. 

s Guy V, Livesey, Cro. Jac. 501 ; Woodward v. Walton, 2 New Bep. 476 ; 9 Co. 
113 a ; Ream v. Rank, 3 S. & R. 215. 

* Jones V, Brown, Peake's Cas. 238 ; s. c. 1 Esp. 217. 

* Maunder v. Venn, 1 M. & Malk. 828 ; Mann v. Barratt, 6 Esp. 82. 

* 1 Steph, N. P. 214. 

* Dean v. Peel, 5 East, 45 ; Anon., 1 Smith, 338 ; Postlethwaite v, Parkes, 8 Banx 
1878. If the daughter, being under age, is actually in the service of another, but the 
father has not devested himself of his right to reclaim her services, it has been held, 
that he may maintain this action. Marun v. Payne, 9 Johns. 887. See infra^ tit. 
Seduction. 

7 Harper ». Lnffkin, 7 B. & C. 887. 

" Fores v. Wilson, Peake's Cas. 55 ; Bennett v, Alcott, 2 T. R. 166 ; Manvell «. 
Thomson, 2 0. & P. 303 ; Irwin v. Df^rman, 11 East, 28 : Nickleaon v. Striker, 10 
Johns. 115. See also 1 Chitty on PI. 50. 

* Moore v. Adam, 2 Chitty, 198, per Bailey, J. ; 1 Chitty on PI. 846. The plain- 
tiff may recover for the damage he is likely to sustain, after the trial, as the natural 
consequence of the injury ; because, for these damages, he can have no other action. 
Fetter v. Beale, 1 Ld. Rayro. 389 ; 8. c. 2 Salk. 11. 



PART IV.] ASSAULT AND BATTERY. 77 

necessary consequence of the assault and battery, it sliould be 
set forth with particularity; such, for example, as the general 
loss of health, or the contracting of a contagious disease, or beiug 
stinted in allowance of food, in an action for an assault and false 
imprisonment; or an injury to his clothes, in a personal ren- 
counter and the like.^ The manner, motives, place, and circum- 
stances of the assault, however, though tending' to increase the 
damages, need not be specially stated, but may be shown in 
evidence. Thus, where the battery was committed in the house 
of the plaintiff, which the defendant rudely entered, knowing 
that the plaintiff's daughter-in-law was there sick and in travail, 
evidence of this fact was held admissible without a particular 
averment.^ Nor are the jury confined to the mere corporal injury 
which the plaintiff has sustained ; but they are at liberty to consider 
the malice of the defendant, the insulting character of his conduct, 
the rank in life of the several parties, and all the circumstances 
of the outrage, and thereupon to award such exemplary damages 
as the circumstances may in their judgment require.^ (a) 

§ 90. Conviotion. ConfessioiL In proof of the trespass, the 
plaintiff may give in evidence a conviction of the defendant upon 
an indictment for the same offence, provided the conviction was 
upon the plea of guilty ; but not otherwise.^ (&) And if it was a 
joint trespass by several, the confessions and admissions of any of 
them, made during the pendency of the enterprise and in further- 
ance of the common design, may be given in evidence against the 
others, after a foundation has been laid by proving the fact of 
conspiracy by them all to perpetrate the offence.^ 

1 Chitty on Fl. 846, 847 ; Lowden v. Goodrick, Peake's Caa. 46 ; Pettit v. Addiog- 
ton. Id. 62 ; Avery v. Ray, 1 Man. 12. See infra, tit Damages, §§ 253, 255. 
' Sampeon v. Henry, 11 Pick. 879. 

* Merest V. Hanrey, 5 Taunt. 442. Heath, J., in thu case, remarked, that "it 
goes to prevent the practice of duelling, if juries are permitted to punish insult by ex- 
emplary damages." Wade v. Thayer, 40 Cal. 585 ; Bracegirdle v, Oxford, 2 M. & S. 
77 ; TuUidge v. Wade, 8 Wils. 19 ; Davenport v. Russell, 5 Day, 145 ; Shafer v. 
Smith, 7 Har. & T. 67. Previous threats of the defendant, in the presence of the 
plaintiff, may also he shown. Sledge v. Pope, 2 Hayw. 402. See in/rat tit. Dam- 
ages, f§ 258, 267, kc ; McNamara v. King, 2 Gilm. 482 ; Reed v. Dtfvis, 4 Pick. 216. 

* AnU, vol. L § 587, n. ; Reg. v, Moreao, 12 Jnr. 626. 

* AiUe, vol. L I 111. 

(a) Exemplary damages may be given. And the amount of the fine paid by him 

notwithstanding the defendant has been should not be considered in the civil ac- 

pTooeeded against criminally. Hoodley v. tion. Reddin v. Oates, 52 Iowa, 210. 
Watson, 45 Vt 289 ; Corwin v. Walton, {b) Corwin v. Walton, IS Mo. 71. 
18 Ma 71. See also pod, ( 266 et aeg. 



78 LAW OP EVIDENCE. [PAfiT IV. 

§ 91. Averment of alia enormia. The (Ma enormia is an aver- 
ment not essential to the declaration for an assault and battery ; 
its office is merely to enable the plaintiff to give in evidence under 
it such circumstances belonging to the transaction as could not 
conveniently be stated on the record.^ Things which naturally 
result from the act complained of may, as we have seen, be shown 
under the other averments. 

§ 92. Matters of defence. Matters of defence in this action are 
usually distributed under three heads ; namely : first, Inficiation^ 
or denial of the fact, which is done only by the plea of not guilty ; 
secondly. Excuse^ which is an admission of the fact, but saying it 
was done accidentally, or by superior agency, and without any 
fault of the defendant ; and this may be either specially pleaded, 
or given in evidence under the general issue ; and, thirdly, Justir 
ficationj which must always be specially pleaded.^ To these may 
be added matters in dUchargej such as a reUaee^ accord and satii- 
faction^ arbitrament^ former recovery^ the statute of limitations^ and 
the like, which also must be specially pleaded.^ But it should be 
observed that these rules apply only to suits against private per* 
sons. For, where actions are brought against public officers, for 
acts done by virtue of their office, they are permitted by statutes 
to plead the general issue, with a brief statement in writing of the 
special matter of justification to be given in evidence. 

§ 93. Wliat provable under general issue. Under the general 
issue, the defendant, in mitigation of damages, may give in evi- 
dence a provocation by the plaintiff, provided it was so recent and 
immediate as to induce a presumption that the violence was com- 
mitted under the immediate influence of the passion thus wrong- 
fully excited by the plaintiff.* (a) Indeed, the defendant, in 

1 1 cutty on PI. 848; Lowden v, Goodrick, Peake's Cas. 45. See infra, tit. Dam- 
ages, § 276; supra, § 85. 

« Bull N. P. 17. » Chitty on PI. 441. 

* Dennis v. PawUng, 12 Vin. Abr. 159, tit. Evid. 1, b, pi. 16, per Price, B.; Lee 
V. Woolsey, 19 Johns. 319; Coshman v. Waddell, 1 Bald. 58; Avery v. Ray, 1 Mass. 
12; Matthews t>. Terry, 10 Conn. 465; FuUerton v. Warrick, 3 Blackf. 219; Anderson 
V, Johnson, 3 Har. & J. 162. In Fraser v. Berkley, 2 M. & Rob. 8, Lord Abinger 
admitted evidence of provocation ; namely, a Ubel published some time previous to the 
battery. 

(a) The fact that the evidence of provo- of the benefit of it. The jury, in esti- 

cation, which the defendant wishes to use matins the damages, must ascertain from 

in mitigation of damages, was offered to the whole evidence how far ^e plaintiff 

prove a justification of self-defence, which also was in fault, if in fault at all, as well 

has failed, does not deprive the defendant as the defendant, and give damages aoooid- 



PAET IV.] ASSAULT AND BATTERY. 79 

mitigation of damages, may, under this issue, rely on any part of 
the re9 gestcsj though, if pleaded, it would have amounted to a 
justification ; notwithstanding the general rule, that whatever is 
to be shown in justification must be specially pleaded ; for every- 
thing which passed at the time is part of the transaction on which 
the plaintiffs action is founded, and therefore he could not be 
surprised by the evidence.^ And it is also laid down, as a general 
rule, that whatever cannot be pleaded may be. given in evidence 
under this issue.* Therefore, where tlie beating in question was 
by way of punishment for misbehavior on board a ship, and for the 
maintenance of necessary discipline, this evidence was held not 
admissible in mitigation of damages, because the facts might have 
be^n pleaded in justification.^ Where the action was for assault 
and false imprisonnaent, evidence of reasonable Buspicion of felony 
has been held admissible, in mitigation of damages.^ 

§ 94. Unlawfioi intention eaaentiaL In the case of a mere assault, 
the quo animo is material, as, without an unlawful intention, there 
is no assault. Any evidence of intention^ therefore, is admissible 
under the general issue.^ But in the case of a battery, innocence 
of intention is not material, except as it may go in mitigation of 
damages ; unless it can be shown that the defendant was wholly 
free from fault ; because every man who is not entirely free from 
all blame is responsible for any immediate injury done by him to 
the person of another,though it were not wilfully inflicted. There- 
fore, if the act of the defendant was done by inevitable necessity, 
as if it be caused by ungovernable brute force, his horse running 

^ Bingham v. Gamault, BuU. K. P. 17. 

* 2 B. & P. 224, n. (a). 

» Watson V. Christie, 2 B. & P. 224. 

* Chinn v. Morris, 2 C. & P. 861; s. c. 1 By. k M. 824. The law of damages, in 
actions ex delicto, in re^rd to evidence in ag^vation or mitigation, is treated with 
great ability and jnst discrimination, in an article in 8 Am. Jurist, pp. 287-813. 

* Griffin V. Parsons, 1 8elw. N. P. 25, 26; ntpra, § 88. 

ingly. Bnrke v. MeMn, 45 Conn. 248. Zuntz, 26 La. Ann. 818: Rochester v. An- 
Proof^ however, of former controversies in- derson, 1 Bibb (Ky.), 428; Dolan v. Fagan, 
dependent of the assault complained of, 68 Barb. (N. Y.) 73 ; Riddle v. State, 49 
and not so recent as to be reasonably sup- Ala. 889. Cf. Collins v, Todd, 17 Mo. 587. 
posed to have provoked it, is not admissi- If libeUous words are used by the plain- 
ble. Richardson t>. Hine, 42 Conn. 206 ; tiff of the defendant, and some time after- 
Collins V. Todd, 17 Mo. 537; Dolan v. ward the plaintiff repeats the libel, and the 
Pagan, 68 Barb. (N. Y.) 78. It is well- defendant immediately thereafter commits 
settled law that mere words do not consti- the assault and battery complained of, this 
tnte a sufficient provocation to justify an repetition of the words may be given in evi- 
assault; but thev may be given in evidence dence in mitigation of damages. Davis v, 
in mitigation of damages. Richardson v. Franke, 83 Oratt. (Va.) 418. 



80 LAW OP EYIDENCE. [PABT IV. 

away with him without his fault ; ^ or, if a lighted squib is thrown 
upon him, and to save himself ho strikes it off in a new direction,^ 
— in these and the like cases the necessity may be shown under 
the general issue, in disproof of the battery. But if tlie plaintiff 
was himself guilty of incautious or improper conduct, he cannot 
recover, unless the case was such that, by the exercise of ordinary 
care, he could not have avoided the consequences of the defend- 
ant's neglect,' (a) or was incapable by want of understanding 
or discretion of taking such care.^ In other words, the defendant 
is answerable only for those consequences which the plaintiff, 
by ordinary care, could not have prevented ; the degree of care 
required of the plaintiff being limited by his capacity and cir- 
cumstances.^ 

§ 95. Plea of son aasanlt. Under the plea of mn assault dememe^ 
in excuse, with the general replication of de injuria, &c., the 
burden of proof is on the defendant, who will be bound to show 
that the plaintiff actually committed the first assault ; and, also, 
that what was thereupon done on his own part, was in the necessary 
defence of his person.® (6) And even violence may be justified 
where the safety of the person was actually endangered."^ (<?) If 
the defendant's battery of the plaintiff was excessive beyond what 
was apparently necessary for self-defence, it seems by the Ameri- 
can authorities, that this excess may be given in evidence under 
the replication of de injuria, without either a special replication or 

1 Wakeman v. Robinson, 1 Bing. 213; Gibbons v. Pepper, 4 Mod. 404; 1 Salk. 687; 
BuU. N. P. 16; Hall v. Fearnley, 3 Ad.& El. N. b. 919; Vincent v. Stinehour, 7 
Vt. 62. 

> Scott V. Shepherd, 3 Wils. 403. See also Beckwith v. Shordike, 4 Burr. 2092; 
Davis V. Saunders, 2 Chitty, 639; supra, § 85. 

' Davis 0. Mann, 6 Jur. 954 ; 8. c. 10 M. & W. 546 ; Kennaid o. Barton, 12 
Shepl. 39. 

* I.ynch V. Nurdln, 1 Ad. & El. n. s. 29; 5 Jur. 797. 

' See Robinson v. Cone, 8 Am. Law J. N. 8. 31^, where the sabject is fully con- 
sidsred by Redfield, J. 

* Crogate's Case, 8 Co. 66; Cockerill v. Armstrong, Willes, 99; Jones v. Kitchen, 
1 li. & P. 79, 80; Reece v, Taylor, 4 Nev. & M. 469; Guy v. Kitchener, 2 Str. 1271; 
8. c. 1 Wils. 171; PhiUips v. Uowgate, 4 B. & Aid. 220; Timothy v. Simpson, 1 Or. 
M. k R. 767. 

7 Cockcroft V. Smith, 2 Salk. 642; Bull. N. P. 18. 

(a) Brown 9. Kendall, 6 Gush. (Mass.) ing in self-defence. In such cases the 

292. question is not merely whether the defend- 

(h) Fitzgerald v, Fitzgerald, 51 Vt. ant was the assaulted party, and so had a 

420. right to repel the force bv force, but also 

(c) If the defendant is guilty of an un- as to the degree of the beating, and its 

reasonable and disproportionate deme ot proportion to the assault of the plaintiff, 

violence towards the psrson of another, he Brown v. Gordon, 1 Gray (Mass.), 182; 

is liable for the excess, though he was act- Close v. Cooper, 84 Ohio St 98. 



PART IV.] ASSAULT AND BATTERY. 81 

a new assignment.^ (a) For, in such a case, the question is as to 
the degree and proportion of the beating to the assault. But if 
the plaintifiTs answer to the plea of son assaiUt demesne consists of 
an admission of the fact and a justification of it, this cannot, by 
the English authorities, be shown in evidence under the replication 
de injuria^ but must always be specially replied.' If the decla- 
ration contains but one count, to which son assault demesne is 
pleaded without the general issue, the defendant may give evi- 
dence of an assault by the plaintiff on any day previous to the 
day alleged in the declaration ; and if the plaintiff cannot answer 
the assault so proved, the defendant will be entitled to a verdict.^ 
But if the general issue is pleaded, or the declaration contains 
charges of several assaults, the plaintiff is not thus restricted, and 
the defendant's evidence must apply to the assault proved.^ 

§ 96. Replioatioii de injuria. In regard to the replication of 
de injuria^ the general rule is, that, as it puts in issue only the 
matter alleged in the plea, nothing can be given in evidence 
under it which is beyond and out of tiie plea. The plaintiff can- 
not go into proof of new matter, tending to show that the defend- 
ant's plea, though true, does not justify the actual injury. He 
cannot, for example, show that the defendant, being in his house, 
abused bis family and refused to depart, and, upon his gently 
laying hands on him to put him out, the defendant furiously 
assaulted and beat him.^ So, if the defendant justifies in de- 
fence of his master, the plaintiff cannot, under this issue, prove 
that his own assault of the master was justifiable.^ So, if the 
defendant, being a magistrate, justifies an assault and imprison- 

1 CurtU V. Canon, 2 K. H. 5S9. See, where the plea is moderate castigavU, Han- 
nan V. EdeSy 15 Mass. S47; or, molliUr manus imposuit, Bennett v. Appleton, 25 
Wend. 871. See also 1 Steph. N. P. 216, 220, 221; Dance v. Luce, 1 Keb. 884; 8. c. 
Sid. 246; 1 Chitty on PI. 512, n., 645, 627. 

« Penn v. Ward, 2 Cr. Mees. & Rose 388; Dale v. Wood, 7 J. B. Moore, 88 ; Pig- 
gott V. Kemp, 1 Cr. & Mees. 197; Selby v. Bardons, 8 B. & Ad. 1; 1 Cr. & Mees. 
600; Bowen v. Parry, 1 C. & P. 894; Lamb v. Burnett, 1 Cr. k Jer. 291; 2 Chitty's 
Pkc. 781, 782; Cakes v. Wood, 8 M. & W. 150. 

* Randl^ v. Webb, 1 Esp. 38; Gibson v. Fleming, 1 Har. & J. 488. 

* Downs V. Skrymsher, Brownl. 288; Bull. N. P. 17; 1 Steph. N. P. 222. 

* King V. Phippard, Carth. 280. 

* Webber «l Lirenach, Peake's Ad. Caa. 51. 

(a) It seems that the cnrrent of authori- demestie and the common-law replication, 

ty is stiU in the same direction. The <£$ tn/urto, fcc, the plaintiff could recover 

Court says in Steinmetz v. Kelly, 72 Ind. for the excess, no special replication being 

442 (a case decided in 1880), " It was, how- necessary." And see Brown v. Gordon, 1 

ever, long aoo settled, that in trespass for Gray (Mass.), 182 ; Mellen v. Thompson, 

inlt and battery, on plea of aon aatauU 82 Y t 407. 

TOL. II. 6 



82 LAW OP ETIDENCB. [PART IV, 

ment as a lawful commitment for a bailable offence, the plaintiff 
cannot show, imder this issue, that sufficient bail was offered and 
refused.* 

§ 97. Moderate oastigavlt. To support the plea of moderate 
eoAtigamt^ the defendant must show that the plaintiff was his 
apprentice, by producing the indentures of apprenticeship. He 
must also produce evidence of misbehavior on the part of the 
plaintiff, sufficient to justify the correction given.^ The same 
rules apply where the relation is that of parent and child, or 
jailer and prisoner, or schoolmaster and scholar,^ or shipmaster 
and seaman. It must also be shown that the correction was 
reasonable and moderate ; though in the case of shipmasters, if 
the chastisement was salutary and merited, and there was no 
cruelty, or use of improper weapons, the admiralty courts will 
give to the terms " moderate correction " more latitude of inter- 
pretation.* 

§ 98. Momter mantift imposuit. Under the plea of molliter manus 
impoiuit the matters justified are of great variety ; but they will 
be found to fall under one of these general heads, namely, the 
prevention of some unlawful act, or resistance, for some lawful 
cause. If the force was applied to put the plaintiff out of the 
defendant's house, into which he had unlawfully entered, or to 
resist his unlawful attempt to enter by force, it is sufficient to 
show the unlawfulness of the entry, or of the attempt without 
showing a request to depart. But if the entry was lawful, as if 
the house were public, or, being private, if he entered upon leave, 
whether given expressly or tacitly and by usage, there it is neces- 
sary to show that he was requested to depart, and unlawfully 
refused so to do, before the application of force can be justified.^ 
And in all these cases, to make good the justification, it must 
appear that no more force was employed than the exigency rea- 

1 Sayre v. Earl of Rochford, 2 W. BL 1166. 

^ 1 Saund. on PI. & Ey. 107. In the cose of a hired aervant, the right to inflict 
corporal punishment, by way of diBcipUne or punishment, is denied. Matthews v, 
Terry, 10 Conn. 455. If the servant is a young child, placed with a master in loco 
pcirentUf the ordinary domestic discipline would probably be quite justifiable. 

• 1 Hawk. P. C. c. 60, § 23. 

4 Watson V. Christie, 2 B. & P. 224; Brown v. Howard, 14 Johns. 119; Thom v. 
White, 1 Pet Adm. 173; Sampson v. Smith, 15 Mass. 365. 

» Esp. on Evid. 155, 156; Gregory v. Hill, 8 T. R. 299; Bull N. P. 18, 19; Green 
V. Goddard, 2 Salk. 641; Williams v. Jones, 2 Stra. 1049; Green v, Bartram, 4 C. fc P. 
808; Rose v. Wilson, 1 Bing. 853; s. c. 8 J. B. Moore, 862; Wearer v. Bush, 8 T. R. 
78; Tullay v. Reed, 1 C. & ?. 6; Adams v. Freeman, 12 Johns. 408. 



FAST lY.] ASSAULT AND BATTEBT. 83 

sonably demanded.^ (a) If there was a wilful battery, and it is 
justified, the defendant must show that the plaintiff resisted by 
force, to repel which the battery was necessary. And whenever 
the justification is founded on a defence of the possession of 
property, it is, ordinarily, sufficient for the defendant to show his 
lawful possession at the time, vdthout adducing proof of an inde- 
feasible title ; ^ (6) and in such cases a temporary right of possession 
is sufficient. Thus, where no person dwelt in the house, but the 
defendant's servant had the key, to let himself in to work, this 
was held sufficient evidence of the defendant's possession, as 
against every one but the owner.* So, where a county jail, the 
title to which was vested by statute in the justices of the county, 
was in the actual occupancy of the stewards of a musical festival, 
as it had been on similar occasions, as they occurred, for several 
years, birt there was no evidence of any express permission from 
the justices, yet this was held a sufficient possession, against a 
person intrudinghimself into the hall without leave.^ 

1 Imason v. Cope, 5 C. & P. 198; Esp. on Evid. 156; Eyre v. Norsworthy, 4 C. & 
P. 502; Simpeon v. Morris, 4 Taunt. 821; Bush v. Parker, 1 Bing. N. C. 72. 

< SkeyiUe v. Avery, Cra Car. 188; Esp. on Evid. 156; 1 Saund. on PI. & Evid. 
107. 

s HtU V. Dayis, 2 C. & P. 88. « Thomas v, Marsli, 5 C. & P. 596. 

(a) Hanson V. £. & N. A. R. R. Co., 62 land, assaults a person wrongfully holding 

Me. 84; Coleman v, N. Y. & N. H. R. R. possession of it against his will, although 

Co., 106 Mass. 160. And the party who the freeholder may be responsible to the 

justifies the use of force must prove the public in the shape of an indictment for a 

drcnrostances of justification, ibid. See forcible entry, he is not liable to the other 

also Brown v. Gordon, 1 Gray (Mass.), party. I cannot see how it is possible to 

182. doubt that it is a perfectly good justifica- 

{b) A Catholic priest has no right, tion, to say that the plaintiff was in pos- 
by virtue of his priestly character, to session of the land against the will of the 
forcibly remove from a room a person law* defendant who was owner, and that he en- 
folly there, though the priest is about to tered upon it accordingl}', even though in 
administer an office of religion to a sick so doine a bi-each of the peace was corn- 
person at the latter^s request Cooper v. mitted.' The doctrine of Newton v. Har- 
McKenna, 124 Mass. 284. land was questioned in Davis v. Burrf*ll, 
The question whether a landlord, who 10 C. B. 821, and finally overruled in 
forcibly enters upon a tenant holding over Blades v, Hig^s, IOC. B. n. 8. 718. 
after the expiration of his term, and expels The principle thus decided in England is 
him, is liable to an action of tort for the affinned in Massachusetts in the case of 
entry on the premises, or for an assault in Low v. Elwell, 121 Mass. 809 ; in which 
expelling the tenant, provided he uses no the case of Sampson v. Henry, 13 Pick. 
more force than is necessary, is one which (Mass.) 86, is criticised. And in accord 
has bem decided differently in different with this decision are Sterling v. Warden, 
courts. The early case of Newton v. Har- 61 N. H. 217 ; Kellam v. Janson, 17 Pa. 
laud, 1 M. fcG. 644, decided in the affirma- St. 467 ; Rich v. Keyser, 54 Pa. St 86. 
ative as far as trespass for assault and bat- Contra, Bliss v. Johnson, 78 N. Y. 529 ; 
tery is concerned. In Harvey r. Brydges, Parsons v. Brown, 15 Barb. (N. Y.) 590 ; 
14 M. AW. 487, Parke, R, snys, "When a Dustin v. Cowdry, 23 Vt 681. See 4 Am. 
breach of the peace is committed by a free- Law Rev. 429. 
holder, who, in order to get possession of his 



84 LAW OP BYTDENCB. [PABT IV. 

§ 99. jQBtifloation. If the assault and battery is justified, as 
done to preserve the peaee, or to prevent a crime, the defendant 
most show that the plaintiff was upon the point of doing an act 
which would have broken the peace, or would manifestly have 
endangered the person of another, or was felonious ; ^ and if the 
interference was to prevent others from fighting, he must show 
that he first required them to desist^ If the trespass justified 
consisted in arresting the plaintiff as a felon, without warrant, 
the defendant must prove either that a felony was committed by 
the plaintiff, in his presence ; or that the plaintiff stood indicted 
of felony ; or that he was found attempting to commit a felony ; 
or that he had actually committed a felony, and that the defend- 
ant, acting with good intentions, and upon such information as 
created a reasonable and probable ground of suspicion, appre- 
hended the party in order to carry him before a magistrate.^ It 
seems also to have been held, that the defendant may in like 
manner justify the detention of the plaintiff, as found walking 
about suspiciously in the night, until he gave a good account of 
himself;^ or because he was a common and notorious cheat, going 
about the country and cheating by playing with false dice and 
other tricks, being taken in the fact, to be carried before a magis- 
trate ; or that he was found in the practice of other offences, in 
the like manner scandalous and prejudicial to the public.^ 

§ 100. Same snbjeot. It is further to be observed, that, when- 
ever the defendant justifies the laying of hands on the plaintiff, 
to take him into custody as an offender, he ought to be prepared 
with evidence to show that he detained him only until an officer 
could be sent for to take charge of him, or that he proceeded 
without unnecessary delay to take him to a magistrate, or peace- 
officer, or otherwise to deal with him according to law.® 

Defences by magistrates and other officers will be treated here- 
after, under appropriate heads. 

^ Handcock v. Baker, 2 B. & P. 260. 

• Hawk. P. C. b. 1, c. 81, § 49; 1 East, P. C. 804. 

« Hawk. P. C. b. 2, c. 12, §§ 18, 19; 4 Bl. Comm. 298; 1 East, P. C. 800, 801; 1 
Ross, on Crimes, 728-725; 1 Deacon, Grim. Law. 48, 49; Ledwith v. Catchpole, Cald. 
291, per Ld. Mansfield; Rex v. Hant, 1 Mood. Cr. Gas. 98; Stonehoose v. Elliott, 6 
T. R. 316. 

« Hawk. P. C. b. 2, c. 12, § 20. But this is now doubted, unless the defendant is 
a peace-officer. 1 East, P. C. 808; 1 Russ. on Crimes, 726, 727. 

• Hawk. P. C. b. 2, c. 12, § 20; Holyday v, Oxenbridge, Cro. Car. 284: & c. W. 
Jones, 249; 2 Roll Abr. 646. 

• Esp. on Evid. 168; Rose v. WUson, 1 Bing. 868. 



PAST lY.j ASSUMPSIT. 85 



ASSUMPSIT. 

§ 101. Scope of the chapter. Under this head it is proposed to 
consider only those matters which pertain to this form of action, 
for whatever cause it may be brought, and to the common counts, 
referring, for the particular causes of special assumpsit^ such as 
Bills of Exchange, Insurance, &c., and for particular issues in 
this action, such as Infancy, Payment, and the like, to their 
appropriate titles. 

§ 102. Contraots, ezprees and implied. The distinction between 
general or implied eontractSj and special or express cantractSy lies 
not in the nature of the undertaking, but in the mode of proof. 
The action of assumpsit is founded upon an undertaking, or prom- 
ise of the defendant, not under seal, (a) and the averment always 

(a) When a contract nuder seal has wrongfully taken or detained, the owner 
been modified bj a subsequent parol may waive the tort and recover on a count 
agreement, changing some of the contract for money had and received in assumpsit, 
provisions, the proper form of action on See post, §§ 265, n. 1, 120, n. 9, and 108. 
the modified agreement is assumpsit, not But in such coses there must be some evi- 
covenant. But this is only true when the dence that the goods have been actually 
sealed contract is wholly or partly super- converted into money by the wrong-doer, 
seded by the new parol agreement, so that or that raises a presumption that he has 
performance by the parties after the parol assumed the ownership of the goods as 
UKidification is not an execution of the vendee. Thus, where the facts were that 
original contract, but an execution of the the phuntifi' sent a certain number of logs 
m<^ified contract. Thus, where in a sealed to the defendant, who owned and operated 
contract it is provided that the work shall a sawmill, to be sawed, and only a part of 
be fiuished on a certain day, or, upon the lumber was returned to the plaintiff, 
the happening of a certain contingency, leaving a large port unaccounted for, and 
upon such later day as a third ]ier8on the plaintiff suea on the common counts, 
shall determine, the hct that the time is Sharswood, J., said that if it had been an 
extended under such provision does not action on the case for negligence^ or there 
make it proper to sue in assumpsit but had been a count upon a contract to keep 
the remeojr is still in covenant. King v, as bailee, it might have been well, but that 
Lamoille Valley R.R. Co., 51 Vt. 369. An to support the action there must be some 
action of assumpsit on the common money evidence that goods had been actually con- 
counts will lie to recover the amount of a verted into money by the wrong-doer, or 
tax paid by the plaintiff for the use of the the circumstances must be such as to raise 
defendant, although the duty of the de- a presumption that he had done so. Sat- 
fendant to pay the tax arose upon his con- terlee v, Melick, 76 Pa. St. 62 ; and to the 
tract under seal for the sale of land to same effect, Bethlehem v. Fire Co., 81 Pa. 
the plaintiff; for the action is not based St. 445. In the leading case upon this 
on the contract, which is only evidence of point, Longchamp v. Kelly, Dougl. 187, 
the duty, and this may be established as where the defendant took a masquerade 
weU by a contract under seal as in any ticket to sell for plaintiff, and neither 
other way. Curtis p. Flint, &c.R.R.Ca, accounted for the price nor returned the 
82 Mich. 291. ticket, Lord Mansfield held that it was a 

It is a settled rule that when goods are fair presumption that the defendant had 



86 LAW OP EVIDENCE. [PABT IV. 

is, that he undertook and promised to pay the money sued for, or 
to do the act mentioned. The evidence of the promise may be 
direct, or it may be circumstantial, to be considered and weighed 
by the jury ; or the promise may be imperatively and conclusively 
presumed by law, from the existing relations proved between the 
parties; in which case, the relation being proved, the jury are 
bound to find the promise. Thus, where the defendant is proved 
to have in his hands the money of the plaintiff, which, ex (equo et 
bono J he ought to refund, the law conclusively presumes that he 
has promised so to do, and the jury are bound to find accordingly ; 
and, after verdict, the promise is presumed to have been actually 
proved. 

§ 103. "Wlieii promlBe implied. The law, however, presumes a 
promise only where it does not appear that there is any special 
agreement between the parties.^ For if there is a special contract^ 
which is still open and unrescinded, embracing the same svi^ect- 
matter with the common counts^ the plaintiff, though he should fail 
to prove his case under the special count, will not be permitted to 
recover upon the common counts.^ (a) Thus, where the plaintiff 
paid seventy guineas for a pair of coach-horses, which the defend- 
ant agreed to take back if the plaintiff should disapprove them ; 
and, being dissatisfied with them, he offered to return them, but 
the defendant refused to receive them back ; it was held that the 
plaintiff could not recover the amount paid in an action for money 
had and received, but should declare upon the special contract.^ 
So, where a seaman shipped for a voyage out and home, with a 
stipulation that his wages should not be paid until the return of 

1 Toussaint v. Martinnant, 2 T. R. 105, per BnUer, J. ; Cutter v. Powell, 6 T. R. 
820. 

^ Cooke V, Manstond, 1 New Rep. 866; Ball. N. P. 189; Lawes on Aasnmpsit, pp. 
7, 12; Young v. Preston, 4 Crancn, 289; RnaseU v. Sooth Britain Society, 9 Conn. 
508; Clark v. Smith, 14 Johns. 326; Jennings «. Camp, 18 Johns. 94; Wood v. £d- 
wai-ds, 19 Johns. 205. 

* Weston V. Downes, 1 Dong. 28; Power v. Wells, Cowp. 818; Towers v. Barrett^ 
1 T. R. 188. 

sold it, and the plaintiff conld recover nnder assnmpsit will lie to recover the price, 

the count for money had and received. The action in such a case is based on the 

(a) Sargent v. Adams, 3 Gray (Mass.), implied promise, not on the parol contract. 

72;Streeterv. Sumner, 19 N.H. 516. But Basford v. Allen, 9 Allen (Mass.), 887. 

the contract must necessarily be a valid The plaintiff cannot in such case recover 

one. So, if there has been a parol con- the value of the land as agreed upon in 

tract for the sale of land, void under the the parol contract, but only what the land 

statute of frauds, and the land has been is reasonably worth. Long v. Woodman, 65 

conveyed in accordance with that contract, Me. 56. 



PABT nr.] ASSUMPSIT. 87 

the skip, and he was wrongfully discharged in a foreign port ; it 
was held that he could not recover upon the common counts, but 
must sue for breach of the special contract, it being still in forced 
But though there is a count on a special agreement, yet if the 
plaintiff fails altogether to prove its existence, he may then pro- 
ceed upon the common counts.^ 

§ 104. Pleading. The law on this subject may be reduced to 
these three general ndesfi (1.) So long as the contract continues 
executory y the plaintiff must declare specially; but when it has 
been executed on his part, and nothing remains but the payment 
of the price in money, by the defendant, which is nothing more 
than the law would imply against him, the plaintiff may declare 
generally, using the common counts, or may declare specially, 
on the original contract, at his election.^ (a) If the mode of 
payment was any other than in money, the count must be on 
the original contract. And if it was to be in money, and 
a term of credit was allowed, the action, though on the com- 
mon counts, must not be brought until the term of credit has 
expired.* (i) This election to sue upon the common coimts, where 
there is a special agreement, applies only to cases where the con- 
tract has been fully performed by the plaintiff. (2.) Where the 
contract, though partly performed, has been either abandoned by 
mutual consent, or rescinded and extinct by some act on the part 

1 Halle V, Heightman, 2 East, 145. 

* Harris v. Oke, Boll. N. P. 189; Paine v. Bacomb, 2 Doug. 651; 1 New Rep. 855, 
856; 2 Smith L. C. 1, and n. 

* See Lawes on Assumpsit, pp. 2-12. See also Mead v. Degolyer, 16 Wend. 687, 
688, per Bronson, J.; Cooke v, Munstoue, 1 New Rep. 855 ; Bull. N. P. 189; Tuttle 
V. Mayo, 7 Johns. 182; Robertson v. Lynch, 18 Johns. 451; Linningdale v. Living- 
ston, 10 Johns. 86; Keyes v. Stone, 5 Mass. 891; Jennings v. Camp, 13 Johns. 94; 
Clark V. Smith, 14 Johns. 826. 

4 Gordon V. Msrtin, Fitzg. 808; Paine v. Bacomb, 2 Doug. 651, cited 1 New Rep. 
855, 856; Streeter v. Horlock, 1 Bing. 84, 87; Study v. Sanders, 5 B. & C. 628. per 
Holroyd, J.; Tuttle v. Mayo, 7 Johns. 182; Robertson v. Lynch, 18 Johns. 451 ; Felton 
V. Dickenson, 10 Mass. 287; Baker v. Corey, 19 Pick. 496; Pitkin v. Frink, 8 
Met. 16. 

* Robson V. Godfrey, 1 Stark. 220; Moorehead v. Fry, 24 Penn. St. 87. 

(a) New Hampshire, fcc. Ins. Co. v, to be paid for by a note or bill payable at 

Hunt, 10 Foster (N. H.), 219 ; Hale v, a future dsy, and the note or Dill is ^wi 

Handy, 6 Id. 206 ; Wright v, Morris, 15 given^ the vendor cannot maintain assump- 

Ark. 444. A declaration alleging a promise sit on the general count for goods sold and 

by the defendant to pay the plaintiff a delivered until the credit has expired, but 

som of money is supported by proof of a he may sue immediately for a breach of 

promise to do certain other things, and the special s^reement. Hanna v. Mills, 

pay the money, if the pa]rment of the 21 Wend. (N. Y.) 90; Mussen v. Price, 

money is all that remains to be done. 4 East, 147; Man ton v. Gammon, 7 IlL 

Holbrook v. Dow, 1 Allen (Msss.), 897. App. 201. 

(fr) Where goods are sold and delivered, 



90 LAW OP ETIDENCE. [PABT IV. 

as much as he proves to be due to him, within the sum mentioned 
in the court. If the contract is in writing, and recites that a valu- 
able consideration has been received, this is prima facie evidence 
of the fact, and the necessity of controlling it is devolved on the 
defendant. If the action is founded on a document, or memoran- 
dum, usually circulating as evidence of property, such as a bank- 
check, or the like, proof of the usage and course of business may 
suffice as evidence of the consideration, until this presumption is 
outweighed by opposing proof. 

§ 106. General luue. Damages. As the general issue is a traverse 
of all the material allegations in the declaration, it will be further 
necessary for the plaintiff, under this issue, to prove all the other 
material facts alleged ; such as the performance of conditions pre- 
cedent, if any, on his own part ; notice to the defendant ; request ; * 
where these are material, and the like ; together with the amount 
of damages sustained by the breach of the agreement. Damages 
cannot, in general, be recovered beyond the amount of the ad 
damnum laid in the declaration ; but in actions for torts to per- 
sonal chattels, the jury are not bound by the value of the goods, 
as alleged in the count, but may find the actual value, if it do not 
exceed the ad damnum,^ 

§ 107. Wlien request muBt be proved. In actions upon the com- 
mon counts for goods sold, work and materials furnished, money 
lent, and money paid, a request by the defendant is material to be 
proved ; ^ (a) for, ordinarily, no man can make himself the creditor 
of another by any act of his own, imsolicited, and purely officious. 

found to be due from the said (defendant) to the plaintiff upon an account then stated 
between them; and, in consideration thereof, then and there promised the plaintiff to 
pay him the seyeral moneys aforesaid upon demand. Yet the said (defendant) has 
never paid any of said moneys, but wholly neglects to do so. See 1 Chitty's Prec. 

S. 43, a, b; Reg. Sup. Jud. Court, Mass. 1836, p. 44. Where the declaration alleges a 
ebt for work and labor, and a debt for goods sold, &c., with one eeneral promise to 
pay, the statement of each debt is regarded as a separate count; but where there is 
only one statement of debt, though founded on several considerations, it is one count 
only. Morse v. James, 11 M. & W. 831. 

' Steph. on PI. 318; Hutchins v. Adams, 8 GreenL 174; Pratt v. Thomas, Ware, 
427; The Jonge Bastiaan, 5 Rob. Adm. 822. 

' It has, however, recently been held, that in an indebiiatus assumpsit for money 
lent, and perhaps in a count for goods sold and delivered, a request need not be alleged, 
though it is otherwise in a count for money paid. Victors v. Davis, 1 Dowl. & L. 
d84. In those cases a request is involved in the nature of the transaction. 

(a) The law does not require direct amount of labor performed, and whether 

evidence of a request. It may be with or without the defendant's knowl- 

proved, as other facts in a trial may be ed^, wiU furnish satisfactory nroof on 

proved, by circumstantial evidence. The this point. Hill v. Packard, 69 Me. 158. 
relations of the parties, the kind and 



PART 17.] ASSUMPSIT. 91 

Nor is a mere moral obligation, in the ethical sense of the term, 
without any pecmiiary benefit to the party, or previous request, a 
sufficient consideration to support even an express promise ; un* 
less where a legal obligation once existed, which is barred by posi- 
tive statute, or rule of law, such as the statute of limitations, or 
of bankruptcy, or the law of infancy, coverture, or the like.^ But 
where the act done is beneficial to the other party, whether he was 
himself legally bound to have done it or not, his subsequent express 
promise will be binding ; and even his subsequent assent will be 
sufficient evidence, from which the jury may find a previous re- 
quest, and he will be bound accordingly.^ Thus, where an illegiti- 

i Chitty on Contracts, pp. 40-42; Story on Contr. § 143; 1 Steph. N. P. 246-249; 
Eastwood V. Kenyon, 11 Ad. & £1. 438; Ferrers v, Costello, 1 Longf. k Towns. 292; 
Mellen v. Whipple, 1 Gray, 817. So, where the drawer of a bill of exchange had not 
been duly notified of its dishonor, but nevertheless promised the holder that he would 
pay it, the promise was held biudinff. Rodgei-s r. Stephens, 2 T. R. 713; Lundie v. 
Robertson, 7 East, 231; Story on Bills, § 320. See also Duhammel v. Pickering, 2 
Stark. 90. The nature of the moral obligation referred to in the text is thus stated 
in a lucid and highly instructiye series of articles on the Law of Contracts, attributed 
to Mr. Justice Metcalf. ** It is frequently asserted in the books, that a moral obli- 
gation is a sufficient consideration for an express promise, though not for aii implied 
one. The terms ' moral obligation,' however, are not to be understood in their broad 
ethical sense; but merely to denote those duties which would be enforced at law, 
through the medium of an implied promise, if it were not for some positive rule, 
which, with a view to general benefit, exempts the party, in the particular instance, 
from legal liability. 

" A promise to pay a debt barred by the statute of limitations, or discharged under 
a bankrupt law, falls into this class of cases. So of an adult's promise to pay a debt 
contracted during his infancy, and of a borrower's promise to pay {principal and lawful 
interest of a sum loaned to him on a usurious contract; and of a widow to poy a debt, 
or fulfil other contracts made during coverture. So of a promise by the drawer of a 
bill of exchange, or the indorser of a bill or note, to pay it, though he has not received 
seasonable notice of the default of other parties. So of a promise by a lessor to pay 
for repairs made by a leasee, according to agreement, but not inserted in the lease; and 
a promise to refund money received in part payment of a debt, the evidence being lost, 
and the whole original debt having, in consequence of the loss, been recovered by a 
suit at law. 

*' In the foregoing cases, there was a good and sufficient original consideration for a 
promise, — a contract on which an action might have been supported, if there had 
not been a rule of law, founded on policy (but wholly unconnected with the doctrine 
of consideration), which entitled the promisor to exemption from legal liability. In 
most, if not all, these cases, the rule which entitled the party to exemption was estab- 
lished for his benefit. Such benefit or exemption he mav waive; and he does waive it, 
by an express promise to pay. The consideration of sucn promise is the original trans- 
action, which was beneficial to him, or detrimental to the other party. 

'* These cases give no sanction to the notion, that an express promise is of any bind- 
ing validity, where there was nothing in the original en^pigement which the law regards 
aa H legal consideration," See American Jurist, voL xxi. pp. 276-278. (a) 

* 1 Saund. 264, n. (1), by Williams ; Yelv. 41, n. (1), by Metcalf. This principle 

(a) In Goulding v, Davidson, 26 N. Y. the obligation on which it is founded never 

609, Balcom, J., says: ** There are cases could have been enforced at law." See 

where a moral obligation, that is founded the opinions in this case, and note to the 

upon an antecedent valuable consideration, case in 8 Aroer. Law Reg. N. s. 44 ; and 

is sufficient to sustain a promise, though Flight v. Reed, 9 Jur. M. s. 1016, 1018. 



92 LAW OF EVIDENCE. [PABT IV. 

mate child was pat at nurse by the mother's friends, after which 
the father promised to pay the expenses, it was held by Lord 
Mansfield, that, as he was under an obligation to provide for the 
child, his bare approbation should be construed into a promise, 
and bind him.^ So, where iwo persons were bail for a debtor, in 
several actions, and one of them, to prevent being fixed for the 
debt, pursued the debtor into another State, into which he had 
gone, and brought him back,, thereby enabling the other also to 
surrender him, after which the latter party promised the former 
to pay his proportion of the expense of bringing the debtor back, 
this promise was held binding ; for the parties had a jomt interest 
in the act done, and were alike benefited by it.^ 

§ 108. Assent of defendant It is not necessary for the plain- 
tiff to prove an express assent of the defendant, in order to enable 
the jury to find a previous request ; they may infer it from his 
knowledge of the plaintiff's act, and his silent acquiescence,^ (a) 
Thus, where the father knew where and by whom his minor 
daughter was boarded and clothed, but expressed no dissent, and 
did not take her away ; this was held sufficient evidence, on the 
part of the plaintiff, to charge him for the expenses, unless he could 
show that they were incurred against his consent.^ So, also, as is 

wiU reconcile some cases which seem to conflict with the general rule previously stated 
in the text. Thus, in Watson 9. Turner, BuU. N. P. 129, 147, the overseers, who 
made the express promise, were leoaUy hound to relieve the pauper, for whose henefit 
the plaintiff had ftimished supplies. See 1 Selwyn, N. P. 60 n. (11). So in Lord 
Suffield V. Bruce, 2 Stark. 176, the money had really heen paid to the defendant's house 
by mistake, and the defendant had received the benefit of the payment, and was legally 
liable with the others to refund it, at the time of the promise. And, for aught that 
appears in the report, the promise of indemnity may have been made at the time of 
the pavment, ana afterwards repeated in the letter of the defendant In Atkins v, 
Banwell, 2 East, 606, which was an action between two parishes, for relief afforded 
to a pauper settled in the defendant pariah, there was neither legal nor moral obli- 
gation, nor express promise, nor subsequent assent, on the part of the defendants. 
See also Wing v. Mill, 1 B. & A. 104. 

^ Scott V. Nelson, cited 1 Esp. N. P. 116. 

* Greeves v. McAllister, 2 Binn. 691. See also Seago v. Deane, 4 Bing. 469. 

* See 22 Amer. Jurist, pp. 2-11, where the doctrine of the oblisation of promises, 
founded upon considerations executed and past, is very clearly and ably expounded. 
See also Yelv. 41, n. (1), by Metcalf ; Doty v. Wilson, 14 Johns. 878, 882, per 
Thompson, C. J. 

« Nichole v. Allen, 8 C. fc P. 86. 

(a) The law will not raise an implied meut of the plaintiff as engineer of a cor- 

contract, conferring authority to do an act, poration, to show that he was recognized 

where there existed no lec(al right to make and oonsnlted by the officers of the com- 

an express contract authorizing such an pany as its agent, and that his plans, &c., 

act. Simpson v. Bowden, 88 Me. 649. were accept^ and acted upon. Moline 

See also Lewis v. Trickey, 20 Barb. (K. Y.) Water Power, &c Co. v, Nichols, 26 IIL 

387. It is sufficient proof of the employ- 90. 



PART IT.] ASSUMPSIT. 93 

familiarly said, if one see another at work in his field, and do not 
forbid him, it is evidence of assent, and he will be holden to pay 
the valae of his labor. And sometimes the jury may infer a pre- 
vious request, even contrary to the fact on the ground of legal 
obligation alone; as, in an action against a husband for the funeral 
expenses of Ms wife, he having been beyond the seas at the time 
of her burial ; or against executors for the funeral expenses of the 
testator, for which they had neglected to give orders.^ The law, 
however, does not ordinarily imply a promise, against the express * 
declaration of the party.^ Thus, a promise will not be implied, 
on the part of a judgment debtor, to pay for the use and occu- 
pation of land taken from him by legal process, where he denies 
the regularity of the proceedings.^ But where there is a legal 
duty, paramount to the will of the party refusing to perform it, 
there, as we have before intimated, he is boxmd, notwithstanding 
any negative protestation. Thus, if a husband wrongfully turns 
his wife out of doors, or a father wrongfully discards his child, 
this is evidence sufficient to support a count against him in 
assumpsit, for their necessary support, furnished by any stranger.* 
And if one commit a tort on the goods of another, by which he 
gains a pecuniary benefit, as if he wrongfully takes the goods 
and sells them, or otherwise applies them to his. own use, the 
owner may waive the tort, and charge him in assumpsit on the 
common counts, as for goods sold or money received, which he 
will not be permitted to gainsay.^ (a) 

^ Jenkins v. Tucker, 1 H. Bl. 90; Tugwell v. Heyman, 3 Campb. 298; 10 Pick. 
156. See also Alna v, Plammer, 4 Greeni. 258; Hanover v. Turner, 14 Mass. 227. 
« Whiting V. Sullivan, 7 Mass. 107. » Wynian v. Hook, 2 Greeni. 387. 

* Robinson v. Gosnold, 6 Mod. 171; Valkinburg v, Watson, 18 Johns. 480; 20 
^m. Jur. p. 9; 22 Am. Jur. pp. 2-11. 

* The proposition in the text is stated, in general terras, by Jackson, J., in 
Cnmmings v, Noyes^ 10 Mass. 436; and by Mellen, C. J., in Webster v, Drinkwater, 
5 GreeuL 828. The propriety of its application against the administrator of the 
wrong-doer was first established in Hambley v, Trott, Cowp. 872 ; and has since been 
admitted, without hesitation. Cravath v. Plympton, 13 Mass. 454. It has, in seve- 
ral cases, been said to apply only to the case of money actually received on sale 
of the property wrongfully converted. But, in others, it has been further applied, so 
as to entitle tne plaintiff to recover for the beTi^ficial vm of the thing taken, Chaun- 
cey V, Yeaton, 1 N. H. 461; 6 Greeni. 828; and for the $ervice8 of his apprentice, 
aedaced by the defendant. Lightly v. Clouston, 1 Taunt 112; Foster v. Stewart, 8 M. 

(a) As stated in the text, the principle is that he has done sa Bethlehem v. Fire 

qualified by the restriction that asBumpait Co., 81 Pa. St 445. 
will only lie where the tort-feasor has either The measare of damages in such a case 

sold the article and received the money will be the market value at the time of 

(Waiett V. Waiett, 8 Watts (Rl), 277), the conversion. Wagner v. Peterson, 88 

or there is evidence to raise a preanroption Pa. St 238. 



94 LAW OP EVIDENCE. [PABT IV. 

§ 109. Privity. In regard to the privity necessary to be estab- 
lished between the parties, it is in general true, that an entire 
Btranger to the consideration, namely, one who has taken no 
trouble or charge upon himself, and has conferred no benefit upon 
the promisor, cannot maintain the action in his own name. But it 
has been said, and after some conflict of opinion it seems now to 
be settled, that, in cases of simple contract, if one person makes a 
promise to another, for the benefit of a third, the last may main- 
tain an action upon it, though the consideration did not move 
from him.^ (a) It seems, also, that the action may be maintained 
by either party .^ 

& S. 191 ; and to the case where the defendant had received, not money, bnt a prmrt' 
iasory noU, for the price of the goods sold, MiUer v. Miller, 7 Pick. 133. And, in 
other cases, the owner has been permitted to recover in this form of action, where the 
coods had not been sold by the defendant, bnt had been actually applied and converted 
by him to his own bcncficicU use, Hitchin v. Campbell, 2 W. Bl. 827 ; 2 Pick. 285, n. ; 
Johnson v, Spiller, 1 Doug. 167, n.; Smith v. Hodson, 4 T. R. 211; Hill v. Davis, 8 
N. H. 384. In Jones v. noar, 6 Pick. 285, whertt assumpsit was held not to lie for the 
value of timber trees cut down upon the plaintiff's land, and carried away, it does not 
appear that the defendant had eitner sold the trees, or in any manner applied them to 
his own benefit. In Appleton v. Bancroft, 10 Met. 281, the officer was held liable, in 
assumpsit for money had and received, where he had 8old the goods, but had received 
nothing in payment^ it being his duty to sell for ready money. 

^ 1 Com. Dig. 205, Action upon the Case upon Assumpsit, £. ; 1 Yin. Abr. 388, pL 5; 
Id. 334, 335, pi. 8; Dutton v. Poole, 1 Vent. 318, 332; s. c. 2 Lev. 210; 8. c. T. 
Raym. 802, cited and approved by Lonl Mansfield, Cowp. 443; 8 B. & P. 149, n. (a); 
Marchington v. Vernon, 1 B. & P. 101, n. (c); Rippon v. Norton, Yelv. 1; Whow- 
wood V. Shaw, Yelv. 25, and n. (1), by Metcalf; Carnegie v, Waugh, 2 D. & R. 277; 
Garrett V. Handley, 4 B. & C. 664; Hall v. Marston, 17 Mass. 575, 579; Id. 404, per 
Parker, C. J.; Cabot v. Haskins, 3 Pick, 83, 92. See also 8 Johns. 58; 18 Johns, 497; 
22 Araer. Jur. p. 16-19; 11 Mass. 152, n. (a), by Rand; Bull. N. P. 133; Chitty on 
Contr. p. 45-48. 

So wnere land was conveyed by deed-poll, subject to a mortgage previously made 
by the grantor, and the deed recites that the sum secured by the mortgage is part 
of the consideration of the deed, and that the deed is on the condition' that the grantee 
therein shall assume and pay the mortgage-debt and the interest thereon, as they 
severally become due and payable; and the grantee enters upon and holds the estate, 
and does not pay the interest when it falls due, — the grantor, after paying the interest 
on the demand of the mortgagee, may maintain assumpsit against the grantee to 
recover the amount so paid. Pike v. Brown, 7 Cush. 133. See also Goodwin v. 
Gilbert, 9 Mass. 510; Felch v, Taylor, 13 Pick. 133. See also King v, Hutchins, 28 
N. H. 561. 

2 Bell V. Chaplain, Hardr. 321; 1 Chitty on Plead, p. 5; 22 Am. Jurist, p. 19; 
Hammond on Parties, pp. 8, 9; Skinner v. Stocks, 4 B. & Aid. 437. See also Story 
on Agency, §§ 393, 394. 

(a) In Mellen v, Whipple, 1 Gray lish courts, its o^ration is restricted 

^Mass.), 817, the question was discussed within narrower limits than formerl}^; and 

m a well-considered opinion by Metcalf, the general rule is now more strictly en- 

J., as follows : ''The maxim, that, 'on a forcS. That general rule is, and always 

promise not under seal, made by A to B has been, that a plaintiff in an action on 

for a good consideration to pay B's debt a simple contract must be the person from 

to C, C may sue A,' requires great modifi- whom the consideration of tne contract 

cation, because it expresses an exception actually moved, and that a stranger to the 

to the general rule, rather than the rule consideration cannot sue on the contract, 

itself. By the recent decisions of the £ng- The role is sometimes thus expressed: 



PART rv.] ASSUMPSIT. 96 

§ 110. Joint oontraoti. Where there are several plaintiffs^ it 
must be shown that the contract was made with them all ; for, if 
all the promisees do not join, it is a ground of nonsuit. So, if too 

many should join.^ And where the plaintiff sues in a particular 
eapacityj as assignee of a bankrupt,^ or surviving partner,^ he 

1 Chittj on PL (^, 15; Brand v. Boulcott, 2 B. & P. 285. 
* 1 Saiind. on Plead, and Evid. 250-289. 
> Wilaon v. Hodges, 2 East, 812. 

There moBt be a privity of contract be- the caae of Carnegie and another v. Morri- 

tween the plaintiff and the defendant, in son and another, 2. Met. (Mass.) 381, will 

order to render the defendant liable to an be found to belong to the same class. The 

action, by the plaintiff, on the contract. Chief Justice there said : * Bradford was 

Crow V. Rogers, 1 Stra. 592; Ross v. indebted to the plaintiffs, and was desirous 

Milne, 12 Leigh, 204; Morrison 9. Beckey, of paying them. He had funds, either in 

6 Watts, 349 (Pa,); 1 Selw. N. P. (eleventh cash or credit, with the defendants, and 

ed. ) 49. The exceptions to this nile are Entered into a contract with them to pay 

included in the above maxim, and some of a sum of money for him to the plaintiffs, 

them may be included in three distinct And upon the faith of that undertaking 

classes. he forebore to adopt other measures to pay 

" 1. Indebitatus aasumpnt for money had the plaintiffs' debt.' 

and received can be maintained in various "By the recent English decisions, 

instances, where there is no actual privity however, one to whom money is trans- 

of contract between the plaintiff and de- mitted, to be paid a third person, is not 

fendant, and where the consideration does liable to an action by that person, unless 

not move from the plaintiff. In some he has expressly agreed to pay him. And 

actions of this kind, a recovery has been such was the opinion of S] veneer, J., in 

had, where the pit>mise was to a third per- Weston v. Barker, 12 Johns. (N. Y.) 282. 

son for the benefit of the plaintiff; such See the English cases collected in 1 Archb. 

action being an equitable one, that can be N. P. (Amer. ed. 1848) 121-125. 

supported by showing that the defendant " 2. Cases where promises have been 

has in his hands money, which, in eouity made to a father or uncle, for the benefit 

and good conscience, belongs to the piain- of a child or nephew, form a second class, 

tiff, without showing a direct consideration in which the person for whose benefit the 

moving from him, or a privity of contract promise was made has maintained an 

between him and the defendant. action for the breach of it. The nearness 

" Most of the cases in this first class of the relation lietween the promisee and 

are those in which A has put money or him for whose benefit the j»romise was 

property in B's hands as a fund from made has been sometimes assigned as a 

which A's creditors are to be paid, and B reason for these decisions. And though 

has promised, either expressly or by im- different opinions, both as to the cori'ect- 

pHcation, from his acceptance of the ness of the decisions, and as to this reason 

money or property, without objection to for them, hsve often been expressed by 

the terms on which it was delivered to English judges, yet the decisions them- 

him, to pay such creditors. In such cases, selves have never been overruled, but are 

the creditors have maintained actions still regarded as settled law. Dutton v. 

against the holder of the fund. Dishorn Poole, 1 Vent. 818, is a familiarly known 

t. Denaby, 1 D'Anv. Abr. 64; Starkey case of this kind, in which the defendant 

*. Mill, Style, 296; Ellwood v. Monk, 5 promised a father, who was about to fell 

Wend. (N. Y.) 235; Delaware & Hudson timber for the purpose of raising a portion 

Canal Co. v, Westchester Countv Bank, for his daughter, that, if he would forbear 

4 Denio, 97; Fleming ». Alter, 7 S. & R. to fell it, the defendant would pay the 

(Pa.) 295; Beers v, Robinson, 9 Pa. St. 229. daughter £1,000. The daughter main- 

The cases in Massachusetts which clearly tained an action on this promise. Several 

fiUl into this class are Arnold v. Lyman, like decisions had been previously made. 

17 Mass. 400, recognized in Fitch r. (Jhand- Rookwood's Case, Cro. Eliz. 164; Oldham 

ler, 4 Cush. (Mass.) 255; Hall v. Marston, v. Bateman, 1 Roll. Abr. 81; Provender v. 

17 MasB. 575; and Felch v. Taylor, 18 Wood, Hetl. 80; Thomas's Case, Style, 

Pick. (Mass.) 183. On close examination, 461; Bell v. Chapkin, Hardr. 321. These 



96 LAW OP EVIDKNCB. [PART IV. 

must, under the general iBsue, prove his title to sue in that 
capacity. But the plaintiff need not, under the general issue, 
be prepared to prove that the contract was made with all the 
defendants ; as the non-joinder of defendants can ordinarily be 
taken advantage of only by a plea in abatement.^ 

§ 111. nnlawfal oontraoti. It must also appear on the part of 
the plaintiff, that the contract was not unlawful. For if it ap- 
pears to have for its object anything forbidden by the laws of 
God, or contrary to good morals; or, if it appears to be a contract 
to do or omit, or .to be in consideration of the doing or omission, 
of any act, where such doing or omission is punishable by crimi- 
nal process ; or, if it appears to be contrary to sound public pol- 
icy;, or, if it appears to be in contravention of the provisions of 
any statute ; in any of these cases the plaintiff cannot recover, 
but upon his own showing may be nonsuited. For the law never 
lends its aid to carry such agreements into effect, but leaves the 
parties as it finds them, in pari delicto.^ But though the prin- 

1 1 Chitty on Plead. 81-38, 62. 

* See Chitty on CoDtracts, pp. 51^561; 22 Amer. Jurist, pp. 249-277; 28 Am. 
Jurist, pp. 1-23; Story on Contracts, c. 5, 6; Gruenwood v. Curtis, 6 Mass. 381; Pear- 
son V, JU)rd, Id. 84; Worcester v, Eaton, 11 Mass. 368; Merwin v. Huntington, 2 
Conn. 209; Babcock v. Thompson, 3 Pick. 446; Burt v. Place, 6 Cow. 481; Best 
V. Strong, 2 Wend. 819; Gregg v. Wyman, 4 Law Rep. N. 8. 861, where the cases are 
coUecte£ (a) 

cases support the decision of this court in ruled in Hall v, Corcoran, 107 IVIass. 251 • 

Felton p. Dickinson, 10 Mass. 287. See also CarroU v. St IsUnd R. R. Co., 

"8. The last case in this Common- 58 N. Y. 126. Whether such an action 

wealth which was cited in support of the could hare been maintained had the horse 

present action is Brewer v. Dyer, 7 Cush. been injured within the agreed limit, qucert. 

(Mass.) 837. In that case the defendant Frost v. Plumb, 40 Conn. Ill ; Parker v, 

gave to the lessee of a shop a written prom- Latner, 60 Me. 528 ; Way v. Foster, 1 Allen 

ise to take the lease, and pay to the lessor (Mass.), 408. One cannot recoTsr back 

the rent, with the taxes, according to the money paid to an officer in the army as a 

terms of the lease. The defendant entered bribe. Clark v. United States, 102 C. S. 

into possession of the shop, with the 822. Nor money i)aid for compounding a 

knowledge of the lessor, and paid the rent crime. Collins r. Lane, 80 N. Y. 627 ; 

to him for a year, and then left the shop. Hayes v. Rudd, 83 N. Y. 251 ; Comstock 

And it was decided tliat he was liable to v. Tupper, 50 Vt. 596. Nor can he en- 

the lessor for the subsequently accruing force, as a loan, a transaction which was in 

rent, and for the taxes, on his promise to fact a loss of money in gambling. Samp- 

the lessee." son v, Whitney, 27 La. ^n. 294. Mutual 

(a) Gregg v. Wymaa^ supra, decided promises to marry between parties, each 

that a person who lets a horse on the knowing that the other is married, are in- 

Lord*s Day, to be driven for pleasure, can- valid, as wntra btmot snores. Paddock v, 

not recover of the bailee in tort for injury Robinson, 68 111. 99. But if either party 

to the horse, by overdriving beyond the is unmarried, and is ignorant that the 

agreed limit ; and this case was followed other is married, by him or her the action 

in Whelden v. Chappel, 8 R. I. 280. But may be maintained. Cover v. Davenport, 

it was denied in Woodman v. Hubbard, 25 1 Heisk. (Tenn.) 868; Kelley v. Riley, 106 

N. H. 67; Morton v. Gloster, 46 Me. 520; Mass. 339; Niverv. Best, 4 Law Rep. K. 8. 

and, upon reconsideration, expressly over- 188. 



PART IT.] ASSUMPSIT. 97 

cipal contract were illegal, yet if money has been advanced under 
it by one of the parties, and the contract still remains wholly 
executory^ and not carried into effect, he may recover the money 
back upon the common money counts ; for the policy of the law 
in both cases is to prevent the execution of illegal contracts ; in 
the one case by refusing to enforce them, and in the other by 
encouraging the parties to repent, and recede from the iniquitous 
enterprise.^ (a) And the same rule is applied to cases where, 
though the contract is executed, the parties are not in pari de- 
licto; the money having been obtained from the plaintiff by 
some undue advantage taken of him, or other wrong practised 
by the defendant.^ 

§ 112. Money lent. In proof of the count for money lent, it is 
not sufficient merely to show that the plaintiff delivered money 
or a bank-check to the defendant ; for this, prima facie^ is only 
evidence of the payment by the plaintiff of his own debt, antece- 
dently due to the defendant.^ (5) He must prove that the trans- 

1 Chitty on Contracts, pp. 498, 499; Tappenden v. Randall, 2 B. & P. 467; Aubert 
V. Walsh, S Tannt 277; Perkins v. Savage, 16 Wend. 412; White v. Franklin Bank, 
22 Pick. 181, 189. 

3 Ibid.; Worcester v, £aton, 11 Mass. 876; Walker v. Ham, 2 N. H. 241; Ames- 
bo^ Man. Co. v. Amesbury, 17 Biass. 461; Fteston v. Boston, 12 Pick. 7; Atwater 
V, Woodbridge, 6 Conn. 228; Chase v. Dwinel, 7 GreenL 134; Richardson v. Dnncan, 
3 K. U. 608;^Clinton v. Strong, 9 Johns. 870; Mathers v. Pearson, 13 S. & R. 258. 

* Welsh V. Seaborn, 1 Stark. 474; Cary v. Gerish, 4 £sp. 9; Cashing v. Gore, 15 
Mass. 74. If the money was delivered bjr a parent to a cnild, it will oe presumed 
an advancement or gift. Per Bayley, J., in Hick v. Keats, 4 B. & C. 71. 

(a) In Enowlton v. Congress, &c. Co., illegal, money paid by one of the parties 

57 N. Y. 518, Folger, C. J., comments on to it in part performance can be recovered, 

this rule as follows : *' We have not been the other party not having performed the 

referred to any authority, nor have 1 found contract or any part of it, and both parties 

uiy, where money paid in ]iart perform- having abandoned the illegal agreement 

ance, and in furtkeroMe of an illegal con- before it was consummated. We think 

tract, has been recovered back where both the authorities sustain the affirmative of 

parties were particeps criminis, and in this position." He then cites 2 Comjms, 

pari delicto, and when its execution was Contracts, 861 ; Parsons, Contracts, Vol. II. 

in the control of the contracting parties p. 746 ; 2 Addison, Contracts, § 1412 ; 

themselves. There are, I concede, dicta Chitty, Contracts, 944 ; 2 Story, Contracts* 

and declarations in some of the elementary § 617; 2 Greenl. Evid. § 111. See also 

works, where the contrary rule or principle Trover, § 638, note, and cases there cited, 

is apparently laid down without limitation (b) In Union Trust Co. v, Whiton, 9 

or restriction; " and he concedes the rule Hun (N. Y. ), 657, the action was for money 

only when both parties are not in pari loaned. The plaintiff produced a check 

delicto. This case was afterwards removed purporting to be a check of the Union 

to the Circuit Court of the United States, Trust Co., signed by its president and 

and thence by appeal to the Supreme secretary, by which the Manhattan Co. 

Court The decision in that court is was requested to pay to the order of the 

ffiven in 103 U. S. 4>9. Mr. Justice defendant a sum of money. This check 

Wood, delivering the opinion of the Court, was shown to have been indorsed by the 

said : "The question presented is, there- defendant, and his handwriting was proved. 

lore, whether, conceding ihe contract to be The plaintiff's teller testified that it was a 

YOL. II. 7 



98 LAW OP EVIDENCB. [PART IV. 

action was essentiallj a loan of money .^ If it was a loan of 
stock, this evidence, it seems, would not support the count.' But 
money deposited with a banker by a customer in the usual way 
has been held to be money lent.' A promissory note is sufficient 
evidence of a loan between the original parties ; even though it 
be payable on condition, if the condition has been performed ; or 
be payable in specific articles, if the special promise is broken.^ 
Indeed, a bill of exchange or promissory note seems now to be 
considered as prima facie proof of the money counts, in any 
action between the immediate parties, whether they were original 
parties or subsequent, as indorsees or bearers, claiming against 
the original drawers or makers.^ (a) So, if the plaintiff has become 
the assignee of a debt, with the assent of the debtor, this is 
equivalent to a loan of the money .^ So, if A owes a sum definite 
and certain to B, and B owes the same amount to G, and the 
parties agree that A shall be debtor to C in B's stead, this is 
equivalent to a loan by C to A.^ This is an exception to the 
general rule of law, that a debt cannot be assigned ; and is per- 

1 Painter v. Abel, 9 Jar. n. s. 549. 

* NightiDgal V. Devisme, 5 Burr. 2589; Jones v. Brinley, 1 East, 1. 

* Pott V, Clefiw, 11 Jar. 289; Pollock, C. B., dubilanU. Bnt aee 11 Jar. 157, 158. 

* Payson v, Whitcomb, 15 Pick. 212; Smith v. Smith, 2 Johns. 2S5; Crandall 
V. Bradley, 7 Wend. 811. 

* Bay ley on Bills, pp. 890-898, and notes by Phillips and Sewall; Yoang v. Adams, 
Mass. 189; Pierce v. Crafts, 12 Johns. 90; Denn v. Flack, 8 Q. & J. 369; Wilde v. 
FUher, 4 Pick. 421; Ramsdell v. Soale, 12 Pick. 126; Olcott v. Rathbone, 5 Wend. 
490; Ellsworth v. Brewer, 11 Pick. 816; Ed^rton v. Brackett, 11 K. H. 218; Fair- 
banks V. Stanley, 6 Shepl. 296; Goodwin v. Morse, 9 Mete. 278; Moore v. Moore, Id. 
417. But not if the note is not ne^gotiable, and expresses no value received. Salton 
V. Johnson, 10 Johns. 418. The defendant may make any defence to the note, when 
offered under the money counts, which would be open to him under any other coant. 
Austin V, Bodman, 1 Hawks, 195. But he can have no other defence than would be 
open to him under a special count upon the note. Hart v. Ayers, 9 Ohio, 5. It baa 
been held that an I U, though evidence of account stated, is not evidence of money 
lent. Fessenmayer v, Adcock, 16 M. & W. 449. 

* 1 Steph. N. P. 816 ; 2 Stark. Ev. 61. See Mowry v. Todd, 12 Mass. 281. If the 
contract assigned is a specialty, the rule is the same. Compton 9. Jonea, 4 Cow. 18. 
But it has been questioned, whether assumpsit lies, in such caae, without an express 
promise to the assignee. Dubois v. Doubledav, 9 Wend. 817. In this case, there waa 
not sufficient evidence to raise even an impliea promise. 

7 Wade V. Wilson, 1 East, 795 ; Wilson v. Coupland, 5 B. & Aid. 228; Hamilton «. 
Starkweather, 28 Conn. 180. 

loan check. An envelope was produced through his hands, and this raised a pre- 

frora the plaintiff's papers, on which was sumption that he had obtained the money 

indorsed, ''Four months loan," and the on it. 

defendant's name and the same date as the (a) An action upon the common count 

check. It was held that this was sufficient for money lent will lie against an accep- 

evidence of a loan to be submitted to the tor of a draft in favor of a pexwn who 

jury. The indorsement of the check by discounted it. Butler v. American Toy 

the defendant indicated that it had passed Co., 46 Conn. 186. 



PART lY.] ASSUMPSIT. 99 

mitted only where the sum is ascertained and defined beyond 
dispute.^ 

§ 113. Money paid. To sustain the count for money paid^ the 
plaintiff must prove the actual payment, (a) and the defendant's 
prior request so to do, or his subsequent assent and approval of 
the act, to be shown in the manner and by the methods already 
stated.^ And if the money has been paid by the defendant's 
request, with an undertaking express or implied on his part to 
repay the amount, it is immaterial whether the defendant has 
been relieved from liability or otherwise profited by the payment 
or not.* (6) Whether the plaintiff can recover under this count, 
without proof of the actual payment of money, and by only show- 
ing that he had become liable at all events to pay money, for 
t^e defendant, is a point upon which there has been some appar- 
ent conflict of decisions. It has been held in England, that 
where the plaintiff had given his own negotiable promissory note, 
which the creditor accepted as a substitute for the debt due by 
the defendant, he was entitled to recover the amount under this 
count, though the note still remained unpaid.^ And it has also 
been held that, where he had become liable for the debt by giving 
his bond, though he thereby procured the defendant's discharge, 
he could not recover the amount from the defendant until he had 
actually paid the money due by the bond.^ The latter rule has 
been adopted and followed by the American courts, on the ground 
that the bond is not negotiable, nor treated as money in the ordi- 
nary transactions of business,^ but they also hold that the giving 
of a bill of exchange or negotiable note by the plaintiff, which has 
been accepted by the creditor in satisfaction of the defendant's 

1 Fairlee v. Denton, 8 B. & 0. 895. * Supra, §§ 107, 108. 

s Britfiin p. Lloyd, 14 M. & W. 762. * Barclay v, Gouch, 2 Esp. 671. 

* Taylor v. Higgins, 8 East, 169 ; Maxwell v. Jameson, 2 B. & Aid. 61 ; Power v. 
Butcher, 10 B & C. 829, 846, per Parke, J. 

* Gumming v. Hackley, 8 Johns. 202 ; 4 Pick. 447, per Wilde, J. And see Gard- 
ner V. Cleveland, 9 Pick. 884. The entry of judgment on the hond, and issuing of 
execution, does not vary the case. Morrison 9. Borkey, 7 S. & R. 288. Whether 
being taken in execution would, quaere; and see Parker 9. United States, 1 Peters, 
C. C. 266. 

(a) Power v. Butcher, 10 B. & C. 829, opinion of the court, relie<l on Britain v. 

846 ; Whiting v, Aldrich, 117 Mass. 682. Lloyd, 14 M. k W. 762, — the case cited 

(h) In Emery v. Hobson, 62 Me. 678, by the author, — to support the rule, and 

the same point was adjudged in the same also cited Lewis v, Campbell, 14 Jur. 896, 

way, after a rery full citation of the an- where a similar dedsion was given on the 

thorities by counsel (which are set out in same point, 
the report). Appleton, C. J., giving the 



100 LAW OP BnDENCB. [PABT IV. 

debt, is sufficient to support the count for money paid.* K, how- 
ever, the plaintiff has obtained a discharge of his own liability by 
the payment of less than the full amount, it has been held, that he 
can recover only the sum actually paid.^ And in regard to the 
mode of payment, proof of anything given and received as cash, 
whether it be land or personal chattels, is sufficient to support this 
count.^ (a) If incidental damages, such as costs and the like, have 
been incurred by a surety, they can be proved only under a special 
count ; ^ unless the suit was defended at the request of the princi- 
pal debtor, and for his sole benefit, the defendant being but a 
nominal party, such, for example, as an accommodation acceptor.^ 
§ 114. Money paid per order. If the money has been paid to a 
third person, in compliance with a written order of the defendant 
in that person's fpivor, the possession of the order by the plaintiff 
will generally be prima facie evidence that he has paid the money .^ 
Where no express order or request has been given, it will ordi- 
narily be sufficient for the plaintiff to show, that he has paid 
money for the defendant for a reasonable eause^ and not officiously J 

^ Douglass V. Moody, 9 Mass. 558 ; Cornwall v. Gould, i Pick. 444 ; Pearson v. 
Parker, 8 N. H. 866 ; 8 Johns. 206 ; Craig v, Craig, 5 Rawle, 91, 98, per Gibson, 
C. J. ; Lapham v. Barnes, 2 Vt. 218 ; McLellan tr. Crofton, 6 GreenL 881-883. And 
see Dole v. Hayden, 1 Greenl. 152 ; IngaUs v. Dennett, 6 Greenl. 80 ; Clark v. Fox- 
croft, 7 Greenl. 855; Van Ostrand v. Reed, 1 Wend. 424; Morrison v, Berkey, 7 S. & R. 
288, 246 ; Beardsley v. Root, 11 Johns. 464. 

* Bonney v, Seeley, 2 Wend. 481. 

* Ainslee v. Wilson, 7 Cowen, 662, 669 ; Bonney v. Seeley, 2 Wend. 481 ; RandaU 
v. Rich, 11 Mass. 498, per Parker, C. J. 

« Soaver v. Seayer, 6 C. & P. 678 ; Gillett v. Rippon, 1 M. & Malk. 406 ; Knight 
v. Hiiffhes, Id. 247 ; 8. c. 8 C. & P. 466 ; Smith v. Conipton, 8 B. & Ad. 467. 
^ Howes V. Martin, 1 Esp. 162. 

* Blunt V, Starkie, 1 Taylor, 110 ; 8. o. 2 Hayw. 75. 

7 Brown v. Hodgson, 4 Taunt. 190, per Mansfield, C. J. ; Skillen v, Merrill, 16 
Mass. iO, ** Whenever' the consideration of a promise is executory^ there must, ex 
ntcesntate rei, have been a request on the part of the person promising. For if A 
promise to remunerate B, in consideration that B will perform something specified, that 
amounts to a request to B to perform the act for which he is to be remunerated. See 
King V. Sears, 2 C. M. & R. 58; Where the consideration is exeeutetif unless there 
have been an antecedent request, no action is maintainable upon the promise; for a re- 
quest must be laid in the declaration, and proved, if put in issue, at the trial. Child 
V. Morley, 8 T. R. 610 ; Stokes v. Lewis, 1 T. R. 20 ; Naish v. Tatlock, 2 H. Bl. 819 ; 
Hayes v, Warren, 2 Str. 933 ; Richardson v. Hall, 1 B. & B. 50; Duniford v. Messiter, 
5 M. & S. 446. See R^. Gen. Hil. 1832, pL 8. For a mere voluntary courtesy is not 
sufficient to support a subsequent promise ; but where there was previous request, the 
courtesy was not merely voluntary, nor is the promise nttdum pactum, but couples 
itself with and relates back to the previous request, and the merits of the party, which 
were procured by that request, and is therefore on a good consideration. Such request 

(a) Floyd v. Day, 3 Mass. 403 ; Blais- it is, so far as the principal is concerned, 

dell V. Gladwin, 4 Gush. (Mass.) 878. It equivalent to the payment of money for 

is quite indifferent how the surety extin- his benefit, and at nis request. Hulett v. 

guishes the debt If he do it in any mode, SouUard, 26 Y t. 298. 



PART IV.] ASSUMPSIT. 101 

Thus this count has been sustained, for money paid to relieye 
a neighbor's goods from legal distraint in his absence ; ^ to defray 
the expenses of his wife's funeral ; ' to apprehend the defendant, 
for whom the plaintiff had become bail, and bring him to court, 
so that he might be surrendered;' to discharge a debt of the 
defendant, for which the plaintiff had become surety;^ or for 
which the plaintiff's goods, being on the premises of the defend- 
ant, had been justly distrained by the landlord;^ or for money 
paid to indemnify the owner for the loss of his goods, which the 
plaintiff, a carrier, had by mistake delivered to the defendant, who 
had consumed them for his own use.^ So, where a debt has been 
paid by one of several debtors, or by one of several sureties, the 
payment is sufficient evidence in support of this count against the 
others, for contribution^ So, among merchants, when one has 
accepted a protested bill for the honor of one of the parties which 
he has afterwards paid.' And, in general, where the plaintiff 
shows that he, either by compulsion of law, or to relieve himself 
from liability, or to save himself from damage, has paid money 

may be either expr$88 or implied. If it had not been made in express terms, it will be 
implied under the following circumstances : First, Where the consideration consists in 
the plaintiff's having been compelled to do that to which the defendant was legally com- 
pellable. Jeffreys v. Gurr, 2 B. & Ad. 888 ; Pownall p. Ferrand, 6 B. & C. 439; Exall 
V. Partridge, 8 T. B. 808; Toussaint v. Mardnnant, 2 T. B. 100. Secondly, When the 
defendant has adopted and enjoyed the benefit of the consideration ; for in that case 
the maxim applies, " omnia ratihabitio retrotrahitur et mandato sequiparatur." 
Thirdly, Where the plaintiff voluntaribj does that whereunto the defendant was legally 
compellable, and the defendant, afterwards, in consideration thereof, expressly yTomiaeB, 
Wennall v. Adney, 8 B. fc P. 250, in notis; Wing v. Mill, 1 B. & A. 104 ; Steph. N. 
P. (8th ed.), p. 67, n. 11 ; Paynterv. Williams, 1 C. & M. 818. But it must be ob- 
served, that there is this distinction between this and the two former cases ; namely, 
that in each of the two former cases the law will imply the promise as well as the re- 
quest, whereas in this and the following case the promise is not implied, und the 
request is only then implied when there has been an express promise. Atkins v. Ban- 
well, 2 East, 505. Fourthly, In certain cases, where the plaintiff voluntarily does that 
to which the defendant is mordHy^ though not legally, compellable, and the defendant, 
afterwards, in consideration thereof, expressly promises. See Lee 9. Muggeridge, 6 
Taunt 86 ; Watson v. Turner, Bull. N. P. 129, 147, 281 ; Trueman v. Fenton, Cowp. 
644 ; Atkins v. Banwell, 2 East, 505. But every moral obligation is not, perhaps, 
BofBcient for this purpose. See, ])er Lord Teuterden, C. J., in Littlefield v. Shee, 2 B. 
h Adol. 811." See 1 Smith's Lead. Caa. p. 70, n. 

1 Per Ld. Loughborough, 1 H. Bl. 93. > Jenkins v. Tucker, 1 H. BL 90. 

* Fisher V. Fellows, SEsp. 171. 

* Exall 9. Partridge, 8 T. R. 810, per Ld« Eenyon ; Kemp v. Finden, 8 Jur. 65 ; 
Blaisdell v, Gladwin, 4 Cush. 878. 

* Exall V. Partridge, 8 T. R. 808. 

* Brown v. Hodgson, 4 Taunt 189, per Mansfield, C. J., and Heath, J. But in 
Sills 9. Lainff, 4 Campb. 81, Ld. Ellenborough ruled, that, in such case, the plaintiff 
ought to dectare specuilly. 

' 1 Steph. N. P. 824-326. 

* Smith V. Nissen, 1 T. R 259 ; Yandewell v. TyreU, 1 Hood, ft Malk. 87 ; Stoiy 
an Billa of Exchange, {$ 255, 256. 



102 LAW OF EYIDBNCE. [PABT lY. 

which the defendant ought to have paid, this count will be sup- 
ported.^ (a) 

§ 115. Money paid by wrong-doer. If the money appears to have 
been paid in consequence of the plaintiJBTs own voluntary breach 
of legal duty, or for a tort committed jointly with the defendant, 
it cannot be recovered.^ (6) The general rule is, that wrong-^oen 
shall not have contribution one from another. The exception is, 
that a party may, with respect to innocent acts, give an indemnity 
to another which shall be effectual ; though the act, when it came 
to be questioned afterwards, would not be sustained in a court of 
law against third persons who complained of it. If one person 
induce another to do an act which cannot be supported, but which 
he may do without any breach of good faith or desire to break the 
law, an action on the indemnity, either express or implied, may be 

1 1 Steph. N. p. 824-826 ; Lubbock v. Tribe, 8 M. & W. 607 ; Cowell v. Edwards, 
2 B. & P. 268; Alexander v. Vane, 1 M. & W. 511; Grissell v. Robinson, 8 Bing. N. C. 
10. '* One of the cases in which an express request is unnecessary, and in which a 
promise will be implied^ is that in which the plaintiff lias been compelled to do that to 
which the defendant was legally compellable. On this principle depends the right of 
a surety who had been damnified, to recover an indemnity from his piincipaL Toua- 
saint V. Maitinnant, 2 T. R. 100 ; Fisher v. Fellows, 5 £sp. 171. Tnus toe indoiser 
of a bill, who has been sued by the holder, and has paid part of the amount, being a 
surety for the acceptor, may recover it back as money paid to his use, and at his request. 
Pownall V. Ferrand, 6 B. & C. 439. But then the surety must have been compelled, i. e. 
he must have been under a reasonable obligation and necessity, to pay what he seeks 
to recover from his principal ; for if he improperly defend an action, and incur costs, 
there will be no implied dutv on the part of his principal to reimburse him those, 
unless the action was defended at the principal's request. Gillett v. Rippon, 1 M. & 
M. 406 ; Knight v, Hughes; 1 M. & M. 247. See Smith v, Compton, 3 B. & Ad. 407. 
But if he make a reasonable and prudent compromise, he will be iu.stified in doing so." 
1 Smith's Lead. Gas. p. 70. If there were several principals, ana one surety has paid 
the debt, each is severally liable for the whole sum. Duncan v. EeiflTer, 8 Binn. 126. 
And where there are several sureties, if one, by paying the debt too soon, has deprived 
the other of an opportunity to relieve himself, he cannot have contribution. Skillin 
V. Merrill, 16 Mass. 40. 

2 Gapp V, Topham, 6 East, 892; Burdon p. Webb, 2 Esp. 527. 

(a) So where the plaintiff, in order to termined against the plaintiff, he demanded 

save his property from being sold on legal of the stakeholder repayment of his money, 

process, nas paid a debt which was really and forbade the winner to take it., but the 

due from the defendant, the law implies a stakeholder paid to the winner the identic 

request on the defendant's part, and a cal money which the plaintiff had depos- 

promise to repay, and the plaintiff has the ited with him, the plaintiff was allowed to 

same right of action as if ne had paid at recover the same of the winner, in an ac- 

the defendant's express request. Nichols tion of money had and received. McEee 

V. Bucknam, 117 Mass. 488. But if the v. Manice, 11 Gush. (Mass.) 857. No one 

plaintiff has mistakenly paid money for knovringly participating in a transaction 

the defendant when he was not obliged to, intended to accomplish a purpose forbid- 

he cannot recover the money so paid, den by law can bring an action for any 

Whiting V. Aldrich, 117 Mass. 582. cause directly connected with that ille- 

(6) See also arUe, § 111. Where the fi^ty. Foster o. Thurston, Id. 822 



parties to a wager upon the result of an White v. Boss, 8 Id. 448; Duffy v, Gor- 
election deposited the amount bet with a man, 10 Id. 45; Mills v. Western Bank, 
stakeholder, and after the election was de- Id. 22. 



PAST IT.] ASSUMPSIT. 108 

supported.^ (a) Thus, where the title to property is disputed, an 
agreement by persons interested to indemnify the 8heri£F for serv- 
ing or neglecting to serve an execution upon the property, if made 
in good faith, and with intent to bring the title more conveniently 
to a legal decision, is clearly valid.^ So, where a sheriff, having 
arrested the debtor on mesne process, discharged him on payment 
of the sum sworn to, but was afterwards obliged to pay the origi- 
nal plaintiff his interest, he was permitted to recover the latter 
Bimi from the debtor, under a count for money paid.^ So, where 
the sheriff has been obliged to pay the debt, by reason of the neg* 
ligent escape of the debtor, namely, an escape by the pure act 
of the prisoner, without the knowledge and against the consent of 
the officer, it seems he may recover the amount as money paid for 
the debtor.^ But if the escape were voluntary on the part of the 
officer, the money paid could not be recovered of the debtor.^ 

§ 116. Money paid npon a jndgment Where the money, which 
is sought to be recovered under the count for money paid, has been 
paid under a judgment against the plaintiff, the record of the 
judgment, as we have heretofore shown,^ is always admissible to 
prove the fact of the judgment, and the amount so paid. But it 
is not admissible in proof of the facts on which the judgment was 
founded, unless the debtor, or person for whose default the action 
was brought, had due notice of its pendency, and might have de- 
fended it ; in which case the record is conclusive against the de- 
linquent party, as to all the material facts recited in it.^ 

1 Betts V. Qibbins, 4 Nev. k M. 77, per Ld. Denman, C. J. ; 8. o. 2 Ad. k £1. 57; 
Merrvweather v. Kizan, 8 T. R. 186. 

3 Wriffht V. Lord Vemey, 2 Doug. 240; Watson on SheriffiB, p. 880. 

* Cordon v. Lord Massarenei Peake's Cas. 148. 

* Eyles V. Faiknej, Peake's Cas. 148, n. (a), aemble. Better reported in 8 East, 
172, n. ; 4 Hass. 873, per Parsons, C. J.; Appleby v. Clark, 10 Mass. 59. 

* Pitcher v. Bailey, 8 East, 171; Eyles v. Faikney, Id. 172, n.; B. c. Peake's Cas. 
143, n.; Martyn v. Blithman, Yely. 197; Chitty on Contracts, pp. 526, 527; Ayer v. 
Hutching 4 Mass. 370; Denny v. Lincoln, 5 Mass. 885; Churchill v. Perkins, Id. 541; 
Hodgson V. Wilkins, 7 Greenl. 113. 

* Ante, yol 1. § 627. 

7 Ante, yoL i §§ 527, 538, 539; Smith r. Compton, 3 B. & Ad. 407. " It is always 
adyisable," obseryes Mr. Smith, "for the snrety to let his principal know when he is 

(a) The role of law, that wrong-doers age-feasant, and C, a field-driyer, at A's 

cannot have redress or contribution against request, sold them at auction, and received 

each other, is confined to those cases where the money; but the proceedings being 

the person claiming redress or contribution irregular, A and C were in fact joint 

knew, or must be presumed to have known, trespassers, it was held that A may main- 

that the act for which he has been mulcted tain an action of money had and received 

in damages was unlawful. Jacobs v. Pol- against C for the proceeds of the sale of 

Uid, 10 Cosh. [Mass.) 287. Thns, where the cattle. Ih. 
A in good faitn took up B's cattle dam* 



104 LAW OF EVIDENCE. [PABT IV. 

§ 117. Money had and reoeived. The count for money had and 
reeeivedy which in its spirit and objects has been likened to a bill 
in equity, may in general be proved by any legal evidence, showing 
that the defendant has received or obtained possession of the money 
of the plaintiff, which, in equity and good conscience, he ought to 
pay over to the plaintiff. The subject of the action must either 
originally have been money ; or that which the parties have agreed 
to treat as money; or, if originally goods, sufficient time must 
have elapsed, with the concurrence of circumstances, to justify 
the inference that they have been converted into money. It is a 
liberal action, in which the plaintiff waives all tort, trespass, and 
damages, and claims only the money which the defendant has ac- 
tually received.^ (a) But if the defendant has any legal or equit- 
able lien on the money, or any right of cross-action upon the same 
transaction, the plaintiff can recover only the balance, after satis- 
fying such coimter demand.^ 

§ 118. What la money had and recelTed. In regard to thinffS 
treated ob moneys it has been held, that this count may be sup- 
ported by evidence of the defendant's receipt of bank-nbtes ; * or 
promissory notes ; ^ or credit in account, in the books of a third 

threatened, and request directions from him; for the rule laid down by the King's 
Bench, in Smith v. Compton, is that the effect of want of notice (to the principal) is 
to let in the party who is called upon for an indemnity, to show that ttie plaintiff has 
no claim in respect of the alleged loss , or not to the amount alleged ; that he made an 
improvident bargain, and that the defendant might have obtained better terms, if an 
opportunity had been given him. . . . The effect of notice to an indemnifying party 
is stated by Bullard J., in Doffield v. Scott, 3 T. R. 374. The purpose of giving 
notice is not in order to give a ground for action ; but if a demand be made which the 
party indemnifyiug is bound to pay, and notice be given to him, and he refuse to de- 
fend the action, in consequence of which the person indemnified is obliged to pay the 
demand, that is equivalent to a judgment, and estops the other party from saying that 
the defendant, in the first action, was not bound to pay the money." See 1 Smith's 
Lead. Cas. 70, 71, n. 

^ Anon., liofft, 820 ; Feltham v. Terry, cit. Cowp. 419 ; Mo^es v. MacFerlan, 2 
Burr. 1005; Eastwick v. Hugg, 1 Dall. 222; Lee v. Shore, 1 B. & C. 94; Cowp. 749, 

Jer Ld. Mansfield; 4 K. & S. 748, per Ld. Ellenborough. But see Miller v. Atlee, 13 
ur. 431. 

* Simpson v. Swan, 3 Campb. 291; Eddy v. Smith, 13 Wend. 488; Clift v. Stock- 
don, 4 Litt. 217 [Bartlett v. Bramhall, 3 Gray, 260]. 

* Pickard v. Bankes, 13 East, 20; Lowndes v. Anderson, 13 East, 130; Mason v. 
Waits, 17 Mass. 560; Anslie v. Wilson, 7 Cow. 662. 

* Floyd V. Day, 3 Mass. 405; Hinkley v. Fowle, 4 ShepL 285; Tnttle v. Mayo, 7 

(a) Thus, where one of several heirs after purchase he refused to make any 

orallv agreed with his oo-heirs that he adjustment and distribution of the stock, 

should purchase certain stock of a corpo- and kept the stock and received dividends 

ration, for their joint benefit, taking the thereon, it was held that the other heirs 

conveyance to himself, and that the other might sue for the dividends in the action 

heirs should contribute their respective for money had and received. Colt v. 

proportions of the purchase-money, and Clapp, 127 Mass. 476. 



PABT IV.] ASSUMPSIT. 106 

person ; ^ or a mortgage, assigned to the defendant as collateral 
security, and afterwards foreclosed and bought in by him ; ^ or a 
note payable in specific articles ; * or any chattel.* (a) But not 
where the thing received was stocks,^ goods,^ or any oliier article ; 
unless, in the understanding of the parties, it was considered and 
to be treated as money ; or unless it was intended to be sold by 
the receiver, and sufficient time has elapsed for that purpose.*^ If 
the defendant was the agent of the plaintiff, and the evidence of 
his receipt of the money is in his own account, rendered to his 
principal, this will generally be conclusive against him, unless he 
can clearly show, that it was unintentionally erroneous.^ And if 
the agent or consignee of property to be sold refuses to render any 
account, it will, after a reasonable time, be presumed, if the con- 
trary do not appear, that he has sold the goods, and holds the pro- 
ceeds in his hands.^ 

§ 119. Money to be speoiaUy appUed. Where the money was 

Johns. 132; Fairbanks v. Blackinton, 9 Pick. 98. If the plaintiff under this count, 
files a bill of particulars, stating his claim to be for the amount of a promisttory note, 
which he describes, he wiU not be permitted to give evidence of the pre-existing debt 
for which the note was given. BanK U. S. v. Lyman, 5 Washb. 666. 

^ Andrew v. Robinson, 3 Campb. 199. > Gilchrist v. Cunningham, 8 Wend. 641. 

» Crandall v, Bradley, 7 Wend. 811; Taplin v. Packard, 8 Barb. 200. 

* Arms V. Ashley, 4 Pick. 71; Mason v. Waite, 17 Mass. 660. 

* Nightingal v, Devisme, 2 Burr. 2589; Jones v. Brinley, 1 East, 1; Morrison v, 
Berkey, 7 S. & R. 246. 

* Leery v, Goodson, 8 T. B. 687; Whitwell v. Bennett, 8 B. & P. 559. 

^ McLachan v. Evans, 1 Y. & Jer. 880; Longchamp v, Kenney, 1 Doug. 117. 

" Shaw V. Picton, 4 a & C. 717, 729; Shaw v. Dartnall, 6 B. & C. 56. Where a 
factor sold goods on credit, to a person notoriously insolvent, taking the note of the 
purchaser, payable to himself, and passing the amount to his principal's credit in ac- 
count, as money, which he afterwaros paid over; it was held, that he was not entitled, 
npon the failure of the purchaser, to recover this money back from the principal 
Simpson V. Swan, 8 Campb. 291. But where, after the goods were consigned, out 
before the sale, the principal drew bills on the factor for the value, which he accepted; 
after which he sold the goods to a person in good credit, taking notes payable to nim- 
•elf, and rendered to the principal an account of the sale as for cash, not naming the 
porchaser, and the latter afterwards, and before the maturity of the notes, became in- 
solvent; the principal was held liable to refund the money to the factor, in this action. 
Gnely v. Bartlett^ 8 Greenl. 172. 

* 2 Stark. £v. 68; Selden v, Beale, 8 GreenL 178. 

(a) A stockholder of a corporation can- of such stock provided that its holders 

not sue in assumpsit for an undeclared should receive eiebt per cent dividends 

dividend; for until a dividend is declared before any dividends should be paid to uu- 

the money is not due to him, and the aim preferred stockholders, and the company 

of such an action would be to regulate the afterwards declared a dividend of four per 

receipts, disbursements, and liabilities of cent on all the stock, it was held that he 

the company, which cannot be done by an could recover in assumpsit the difference 

action oiassumpsit. Williston v. Michigan between the four per cent dividend and 

B. B. Co., 18 Allen (Mass.), 400. But where the eight per cent guaranteed him. West 

one bought shares of preferred stock in a Chester, ^ R.B. tk). v. Jackson, 77 Pa. 

SBilroad, and ^e act authorizing the issae St. 821. 



106 LAW OP EVIDBNCB. [PABT IT. 

delivered to the defendant for a particular purpose^ to which he 
refused to apply it, he cannot apply it to any other, but it may be 
recovered back by the depositor, under the count for money had 
and received.^ If it was placed in his hands to be paid over to a 
third person, which he agreed to do, such person, assenting thereto, 
may sue for it as money had and received to his own use.^ (a) 
But if the defendant did not consent so to appropriate it, it is 
otherwise, there being no privity between them ; and the action 
will lie only by him, who placed the money in his hands.' If the 
money was delivered with directions to appropriate it in a particu- 
lar manner for the use of a third person, it has been held, that the 
party depositing the money might comitermand the order, and re- 
cover back in this action, at any time before the receiver had paid 
it over, or entered into any arrangement with the other party, by 
which he would be injured, if the original order was not carried 
into effects But if the money has been deposited in the hands of 
a trustee, for a specific purpose, such as for the conducting of a 
suit by him, as the party's attorney, or by two litigating parties, 
in trust for the prevailing party, it cannot be recovered back 
in this action till the trust is satisfied.^ (6) So, if money has 
been paid upon a condition which has not been complied with, 

1 De Beraales v. FuUer, 14 East, 590, n. < Com. Dig. 205, 206, Assumpsit, £. 

s WUliams v. Everett, 14 East, 582; Hall v. Maiston, 17 Mass. 575, 579; Grant v. 
Austin, 8 Price, 58. 

« Gibson v. Minet, Ry. & M. 68; s. c. 1 0. & P. 247; s. c. 9 Moore, 31; 8. c. 2 
Bing. 7; Lyte v, Peny, Uv. 49 a; Taylor v. I/endey, 9 East, 49. 

» Case V, Roberts, Holt's Cas. 500; Eer v. Osbom, 9 East, 878. See 2 Story on 
£q. Juris. §§ 793 a, 793 b. 



(a) But the sum so deposited must be It was held in Vamum v, Mesenre, 

for the sole benefit of the plaintiff, or his 8 Allen (Mass.), 158, that where a rnort- 

share must be a definite sum or portion of gage deed was executed, the wife joining, 

the whole ; for if it is given to the defend- with a power of sale, and the land was soUL 

ant to pay several with, and the amount of under the power, after the death of the 

the various claims is uncertain and variable, mortgagor, the administrator might sue 

so that it cannot be ascertained what part the mortgagee for the surplus. In this 

of the money so deposited ought justly to case the surplus was specially reserved in 

be paid to the plaintiff, he cannot recover the mortgage to the mortgagor and his 

on the count for money had and received, assigns, omitting heirs, which seems to 

Douglass V. Skinner, 44 Conn. 338. show a disposition to treat the surplus as 

(p) A cestui qvLS trust cannot bring an personalty. On this ground the decision 
action at law against a trustee to recover must be supported, for the better general 
for money had and received while the trust rule is that laid down in Chaffee v. Frank- 
is still open; but when the trust has been lin, 11 R. I. 578, where under similar cir^ 
closed and settled, the amount due the cnmstances it was held that the surplus 
cestui established and certain, and noth- was to be treated as realty, and that the 
ing remains but to pay over the money, administrator therefore could not sue for 
such an action may be maintAined. John- it. Cf. Moses v. Murgatroyd, 1 Johns, 
son V. Johnson, 120 Mass. 465. Ch. (N. Y.) 119, p. 130. 



PABT IT*] ASSUMPSIT. 107 

it cannot be recovered as money had and receiyed to the payer^s 
use.^ 

§ 120. Money obtained by fraud. The count for money had and 
received may also be supported by evidence, that the defendant 
obtained the plaintiffs money by fraud, or false color or pre- 
tence.^ (a) Thus, where one having a wife living, fraudulently 
married another, and received the rents of her estate, he was held 
liable to the latter, in this form of action.' And where the de- 
fendant has tortiously taken the plaintiffs property, and sold it, 
or, being lawfully possessed of it, has wrongfully sold it, the 
owner may, ordinarily, waive the tart, and recover the proceeds of 
the sale under this count.^ (6) So, if the money of the plaintiff 
has in any other manner come to the defendant's hands, for which 
he would be chargeable in tort, the plaintiff may waive the tort, 
and bring assumpsit upon the common counts. But this rule must 
be taken with this qualification : that the defendant is not thereby 
to be deprived of any benefit, which he could have derived under 
the appropriate form of action in tort.^ Thus, this count cannot 
be supported, for money paid for the release of cattle distrained, 
damage-feasanty though the distress was wrongful, where the right 
of common is the subject of dispute,^ nor even where, though the 
distress was lawful, the sum demanded in damages was excessive, 
if there had been no tender of amends,^ nor for money received 

» Hardingham v, Allen. 5 M. G. & S. 798; 17 Law Jour. C. P. 198. 

s Steph. li. P. 385; Bliss v. ThonipBon, 4 Mass. 488; 8upra, § 108; Lyon v, Anna- 
Ue, 4 Conn. 350. 

s Haaser v. WaUace, 1 Salk. 28. 

^ Suprti, § 117. Bat the goods most bare been sold, or tbis connt cannot be main- 
tained. Jones V, Hoar. 5 Pick. 285. And tbere must be a tort, to bo waived, for which 
trespass or case would lie. Bigelow v, Jones, 10 Pick. 161; Bartlett v. Bramhall, 3 
Gray, 260. 

* Lindon v. Hooper, Cowp. 414, 419; Anscomb v. Shore, 1 Campb. 285; Young v. 
Marshall, 8 Bine. 43. 

* Lindon v. Hooper, Cowp. 414. 

^ Oulliver v. Cosens, 9 Jur. 666. The reason for this was stated by Coltman, J., in 
the following terms: "The plaintiff, if he had desired to recover his cattle, should 
liare replevied. It is true, tnat, if he had done so, there would have been an avowry 
by the defendant, which the plaintiff could not have successfully resisted; but he 
might have allowed judgment in the replevin suit to have passed against him for de- 
&tut of proeecQtion, upon which an awurd of a return to the other party would have 

(a) So where one exhibiting a sealed under seal on the back of the instrument, 

instrument, which recites that the person the person so defrauded may recover back 

exhibiting it has a claim for a sum of the money so paid, in assumpsit. Burton 

money on a third party (he having in v. J>Tigm, 20 Wall. (U. S.) 125. 
fact no claim), fraudulently induces an- (6) li^ational Oil Refining Co. v. Bosh, 

other to buy it, and the other does so, 88 Pa. St. 885. 
and pays for it^ and takes an assignment 



108 LAW OP EVI0I3ICE. [PART IV. 

for rent, where the title to the premises is in question between the 
parties ; ^ nor in any other case, where the title to real estate is 
the subject of controversy; that being a question, which, ordi- 
narily, cannot be tried in this form of action.2(a) 

§ 121. Money obtained by dnress, Ao. Under this count, the 
plaintiff may also recover back money proved to have been 
obtained from him by duress^ extortion^ impodtion^ or taking any 
undue advantage of his situation, or otherwise involuntarily and 
wrongfully paid ; as by demand of illegal fees or claims,^ tolls,* 
duties, taxes, usury, and the like, where goods or the person were 
detained until the money has been paid.* (6) So, where goods were 

been made, after which the parties would have been remitted to their former situa^ 
tion. It would then have been for the plaintiff to have tendered sufficient amends; 
and, if the defendant afterwards refused to deliver up the cattle, an action of de- 
tinue to recover them back would have been maintainable. That is the mode 
Sointed out by the law; but, instead of following that, the plaintiff pays the sum 
emanded, under protest, and brings this form of action of money hi^d and received, 
in order to recover it back. The objection to that is, that the law has cast on him 
the duty of tendering the proper amount of compensation, whereas the effect of al- 
lowing the present action to lie would be to cast tne burden of ascertaining the right 
amount on the other party. This case is different from that of a carrier, where the 
action of money had and received has been held to lie ; for there the carrier, by 
claiming more than he \b entitled to, is the wrong-doer. Neither does this prop- 
erly come within the case of money paid under duress of goods, for duress implies 
an illegal detention; but here the defendant comes into and keeps possession of the 
cattle m a way which the law does not consider wrongfuL" See s. c. 1 Man. Gr. & 
Sc. 788, but not so fuUy reported. 

^ Cunningham v. Lftwrents, 1 Bac. Abr. 260, n. ;* Kewsome «. Graham, 10 B. & 
G. 234. 

« 1 Chitty on PI. 95, 96, 121; Binney v. Chapman, 6 Pick. 180; Miller v. Miller, 7 
Pick. 133 ; Codman v. Jenkins, 14 Mass. 96; Baker v. Howell, 6 S. & R. 481. But 
the right to an office may be tried in this form of action, if the plaintiff has onoe been 
in possession. Allen v. McReen, 1 Sumn. 317; Green v, Hewitt, Peake's Gas. 182; 
Bex V, Bishop of Chester, 1 T. R. 396, 403. 

» Morgan v. Palmer, 2 B. & C. 729; Dew v. Parsons, 1 Chitty, 295; s. c. 2 B. & 
Ad. 562; Walker v. Ham, 2 N. H. 238; Clinton v. Strong, 9 Johns. 870; Wakefield v. 
Newbon, 6 Ad. & £L N. s. 276. Even though the money were received and illegally 
claimed by a corporation. Hall v. Swansea, 5 Ad. & El. n. 8. 526. See farther as to 
the principal point, Close v. Phillips, 7 M. & G. 586. 

* Feamley v. Morley, 5 B. & C. 26; Chase v. Dwinel, 7 Greenl. 186. 

* Shaw V. Woodcock, 9 D. & R. 889; 8. c. 7 B. & C. 78; Amesbury v. Amesbury, 
17 Mass. 461; Perry v. Dover, 12 Pick. 206; Atwater v, Woodbridge, 6 Conn. 228; 
Elliott V, Swartwout, 10 Pet 137; Parker v. Great Western Railw. Co., 8 Jur. 194; 7 
Scott, N. R. 835; 8. 0. 7 M. & G. 263; Valpy v. Manley, 9 Jur. 462; 1 M. G. & 
Sc. 694. 

(a) But where a deed purported to con- to support his action he might prove that 

vey a certain number of feet of land, and the number of feet he obtained by the deed 

in fact the piece of land sold contained a was in reality less than he baigained for, 

less number of feet, and the number men- and that he did not get the extra strip 

tioned in the deed could only be made up because it belonged to the third party, 

by including a strip of land claimed bjy and thus incidentally disprove the title of 

the grantor and also by a third party, it his grantor to the strip of land in question, 

was held that an action for money nad and Pickman r. Trinity Church, 123 Mass. 1. 
received would lie by the grantee, who had (b) In Radich v. Hutchina, 95 U". S. 

paid for the full number of feet; and that 210, the rule as to duress is stated thus: 



PABT IV.] ASSUMPSIT. 109 

illegally detained as forfeited ; ^ or, where money was unlawfully 
demanded and paid to a creditor, to induce him to sign a bank- 
rupt's certificate; 2 or, where a pawnbroker refused to deliver 
up the pledge, until a greater sum than was due was paid to him.* 
So, if the money had been paid under an usurious or other iUegal 
contraet^ where the plaintiff is not in pari delicto with the defend- 
ant ; * or, for a connderatian which has failed ; * or, where the 
goods of the plaintiff have been seized and sold by the defendant, 
under an execution to which he was a stranger;® or, under a 
eanvietion^ which has since been quashed, or a judgment, which 
has since been reversed, the defendant having received the 
money ; ^ (a) or, under terror of legal process, which though regu- 

1 Irving p. Wilson, 4 T. R. 486. 

* Smith V. Bromley, 2 Dong. 696, n.; Cockshott v. Bennett, 2 T. R. 768; Stock v. 
Mawaon, 1 B. & P. 286. See Wilson v. Ray, 10 Ad. & EL 82. 

» Astley V. Repolds, 2 Str. 915; 1 Selw. N. P. 88, n. 

* 1 Steph. N. P. 835-841; supra, § 111; 1 Sdw. N. P. 84-94; Worcester v, Eaton. 
11 Mass. 876; Boardman v. Roe, 13 Mass. 105; Wheaton v. Hibbard, 20 Johns. 290; 
Merwin v. Huntington, 2 Conn. 209. And see Perkins v. Savage, 15 Wend. 412; 
White V. Franklin Bank, 22 Pick. 181, 186-189. 

» 1 Steph. N. P. 330-333, 345. • Oiighton v. Seppings, 1 B. & Ad. 241. 

' Feltham v. Terry, cit Cowp. 419; 1 T. & R. 887; Bnll. N. P. 181; 1 Steph. N. 
P. 857-359. See the cases cited in 9 U. S. Digest* Ist S. 123, 124. 

''To eonstitnte the coercion or duress under duress. Payment to a collector of 

which will be regarded as sufficient to taxes, who has a tax-bill and warrant for 

make a payment involimtary, there must ley}ang the same, in the form prescribed 

lie some actual or threatenMl exercise of by law, is not a voluntary payment, but is 

power possessed, or believed to be i>os- compulsory, and if the whole tax be ille- 

aessed, by the party exacting or receiving gaily assessed, assumpsit will lie to recov- 

the payment over the person or property er it back. Joyner v. Egremont, 3 Cush. 

of another, from which the latter has no (Mass.) 567 ; aliter, as it seems, where the 

other means of immediate relief than by tax is not entirely void, the remedy then 

making payment." Compare with this being by appeaL Wright v. Boston, 9 Id. 

case American Steamship Co. v. Young, 233. Such a payment, if made without 

89 Pa. St 186. And in Baltimore v, protest, is a voluntary payment, and the 

Leffeman 4 Gill (Md.), 425, it is said that sum paid cannot be recovered back. New 

** a payment is not to be regarded as com- York & H. R. R. Co. v. Marsh, 2 Kernau 

pnlsory, unless made to emancipate the (N. Y.), 308. SeealsoAUentownv. Saeger, 

person or property from an actual and ex- 20 Penn. St. (8 Harris) 421. Illeeal taxe.s, 

uting duress, imposed upon it by the assessed under color of law and voluntarily 

party to whom the money is paid. paid, cannot be recovered back. Christy 

In Briflgs «. Boyd, 56 Is. Y. 289, it v, St. Louis, 20 Mo. 143. 
was held tMt where one having possession (a) Cf. Wilbur v. Sproat, 2 Gray (Mass.), 
of another's property refuses to deliver it 431. It is not necessary that the payment 
np until money is paid to satisfy a lien of money under the judgment should have 
which he claims upon it, but which is in been coerced by an execution. It is suffi- 
fact unfounded, such a payment is made cient if it is made after judgment or adju- 
nnder duress. Cf. Van Santen v. Stan- dication made. Scholey v. Halsey, 72 
dard Oil Co., 81 N. Y. 171. So, in Chand- N. Y. 678 ; Hiler v. Hiler, 85 Ohio St. 645. 
ler V. Sanger, 114 Mass. 864, it was held The same principle applies where pay- 
that when one paid money to free his goods roents have been made under an assess- 
from an attachment put on for the purpose ment for city improvements, and the assess- 
of extorting money by one who knew he ment is afterwards set aside on eertioraru 
had no cause of action, this was a payment Elizabeth v. Hill, 89 N. J. L. 655. 



110 LAW OP EVIDENCE, [PART IV. 

larly issued, did not authorize the collection of the sum demanded 
and paid.^ So, where the person is arrested for improper pur- 
poses without just cause ; or, for a just cause, but without lawful 
authority ; or, for a just cause and by lawful authority, but for 
an improper purpose ; and pays money to obtain his discharge, it 
may be recovered under this count.* 

§ 122. Money fraudulently obtained. This count, ordinarily, 
may also be proved by evidence, that the plaintiff paid the money 
to the defendant upon a security, afterwards discovered to be 
^forgery; provided the plaintiff was not bound to know the 
handwriting, or the defendant did not receive the money in good 
faith. Thus, where the defendant, becoming possessed of a lost 
bill of exchange, forged the payee's indorsement, and thereupon 
obtained its acceptance and payment from the drawees, he was 
held liable to refund the money in this action, though the bill 
was drawn by a commercial house in one country, upon a branch 
of the same house in another.* (a) An acceptor, however, is bound 
to know the handwriting of the drawer of the bill ; and a banker 
is in like manner bound to know the handwriting of his own 
customers ; so that, in general, where they pay money upon the 
forgery of such signatures, to an innocent holder of the paper, 
the loss is their own.* (6) Yet where a banker paid a bill to 
a remote indorsee, for the honor of his customer, who appeared 
as a prior indorser, but whose signature was forged, and, on dis- 
covery of the forgery, he gave notice thereof and returned the 
bill to the holder, in season for him to obtain his remedy against 

1 Snowdon v. Davis, 1 Taunt 859. Bat see Marriott v. Hampton, 7 T. R. 269; 2 
Eap. 546. 

» Bull N. P. 172, 173; 6 Com. Dig. Pleader, 2 W. 19; Richardson v. Duncan, 8 
N. H. 508; Watkins v. Baird, 6 Mass. 506. 

» Cheap V, Harley, cit 3 T. R. 127. 

* Price V, Neale, 3 Burr. 1354; Smith v. Mercer, 6 Taunt. 76. 

(a) Thus, where A through fraud pro- recover from the payee money paid on the 
cured from B a promissory note, signed by foiged check of one of its depositors, if it 
B, payable to the order of (7, and foxged has been indorsed by the payee ; and in 
the indorsement of C, and got the note Welch v, Goodwin, 128 Mass. 71, that if 
discounted at a bank, and on maturity B a person, through mistake, pays a promis- 
paid the note to the bank, it was held sory note purporting to be signed by him- 
that B. could maintain an action for mon- self, supposing the signature to be his own, 
ey had and received acainst the bank, he may, on discovering it to be forged, 
although the bank acted in good faith in maintain an action to recover back the 
taking the note. Carpenter v. North- money paid, if he has not been Kuilty of 
borough National Bank, 123 Mass. 66. laches, whereby the situation of tiie other 

(b) In Nationsl Bank v. Bangs, 106 party is injuriously affected. 
Haas. 441, it was held that a bank may 



PAST IV.] ASSUMPSIT. Ill 

the prior actual indorsers, it was held that he might, for this 
reason, recover back the money of the holder.^ But where one 
wrote his check so carelessly as to be easily altered to a larger 
sum, so that the banker, when he paid it, could not discover the 
alteration, it was held to be the loss of the drawer.^ So, if lost 
or stolen money, or securities, have come to the defendant's 
hands, mala fide^ the owner may recover the value in this form 
of action.* 

§ 123. Money paid by mistake. In this manner, also, money is 
recovered back, which has been paid under a mistake of facts. But 
here the plaintiff must sliow that the mistake was not chargeable 
to himself alone ; ^ (a) unless it was made through forgetf ulness, 
in the hurry of business, in which case it may be recovered.^ (6) 
But if it was paid into court under a rule for that purpose, it 
is conclusive on the party paying, even though it should appear 
that he paid it erroneously.^ Nor can money paid under a mis- 
take of facts be reclaimed, where the plaintiff has derived a sub- 
stantial benefit from the payment;^ nor, where the defendant 
received it in good faith, in satisfaction of an equitable claim ; ^ 
nor where it was due in honor and conscience.® The laws of a 
foreign country are regarded, in this connection, as matters of 
fact; and therefore money paid under a mistake of the law of 
another state may be recovered back. Juris ignorantia est, cum 
jus nostrum ignoramus.^^ But it is well settled, that money paid 

1 Wilkinson v. Johnson, 8 B. & C. 42S. ^ Young v, Grote, 4 Bing. 253. 

* 1 Steph. N. P. 853-355. Bat a party receiving a stolen bank-note bona fid$ 
and for value, may retain it against the former owner, from whom it has been stolen. 
Hiller v. Race, 1 Burr. 452. So in the case of any other negotiable instrument actually 
negotiated. 1 Smith's Leading Cases, pp. 258-263 (Am. ed.); 43 liaw Lib. 862-368 ; 
pott, § 171. 

* Milnes v, Duncan, 6 B. ft C. 671, per Bayley, J.; Hamlet v, Richardson, Bing. 
647; Story on Contr. §§ 407-411. If one by mistake pay the debt of another, he may 
recover it back of Mm who received it, unless the latter was ii^ured by the mistake. 
Tybout V. Thompson, 2 Browne, 27. 

* Lucas V, Worswick, 1 M. & Rob. 293. 

* 2 T. R. 648, per Buller, J. 7 Korton «. Harden, 15 Me. 45. 

* Moore v. Eddowes, 2 Ad. k £1. 188. 

* Farmer v, Arundel, 2 W. Bl. 824, per De Grey, C. J. 

» Haven v. Foster, 9 Pick. 112, 118; Story on Contr. § 408. 

(a) So where one pays, after investiga- which he had been released by a failure 

tion, a claim made in good faith, but on the part of the holder to make proper 

afterwards found to be baseless. Mc Arthur demand on the maker, the indorser rely- 
V, Luce, 48 Mich. 485. What is 'a ques- ' ing on the statements of the notary in the 

tion of fact is often difficult to decide, notice of protest, as to the demand, wss 

In Talbot v. Bank of Commonwealth, 129 money paid under a mistake of fact 
Mass. 67, it was held thsjt the payment (6) Meyer v, New York, 68 N. Y. 455. 
by an indorser of a note, from liaoiUty on 



112 LAW OF EVIDENCE. [PART TV. 

under a mistake or ignorance of the law of oar own country, but 
with a knowledge of the facts or the means of such knowledge, 
cannot be recovered back.^ (a) 

§ 124. Failure of consideration. This count may also be sup- 
ported by proof, that the defendant has received money of the 
plaintiff upon a eonnderation which has failed ;^ as, for goods 
sold to the plaintiff, but never delivered;^ or, for an annuity 
granted, but afterwards set aside ; ^ or, as a deposit on the pur- 
chase of an estate by the plaintiff, to which the defendant cannot 
make the title agreed for;^ or, where payment has been inno- 
cently made in counterfeit bank-notes, or coins, if the plaintiff has 

1 Chitty on Contr. 490, 491; 1 Story on Contr. § 407; Elliott v. Swartwont, 10 
Pet 147. 

s Chitty on Contr. 487-490; 1 Steph. N. P. 830-382; Spring v. Coffin, 10 Mftas. 
84. But in this form of action, no damages are recovered beyond the money actually 
paid, and the interest. Neel v. Deans, 1 N^ott & M'C. 210. 

» Anon., 1 Stra. 407. * Shove v, Webb, 1 T. R. 782. 

« Alpass V. Watkins, 8 T. B. 516; Elliott v, Edwards, 8 B. & P. 181; Earoes 
V, Savage, 14 Mass. 425. The plaintiff in such case must show that he has tendered 
the purchase-money and demanded a title. Hudson v. Swift, 20 Johns. 24. See also 
Gillett V. Maynard, 5 Johns. 85. 

(a) But see, for some qualifications of plaintiff under the requirements of a State 

this rule, the very valuable note appended statute, which the State courts had decided 

to Black V, Ward, 15 Am. Rep. 171. to be constitutional ; and this decision. 

Ignorance of the law of a foreign eoveru- though it was afterwards reversed by the 

ment is ignorance of fact, and m this Federal courts, was, at the time oi the 

respect the statute laws of other States of payment, in full force. See also Forbes v. 

the Union are foreign laws. Bank of Chil- Anpleton, 5 Cush. (Mass.) 115; Gooding v. 

licothe V. Dodge, 8 Barb. (N. Y.) 233. If Morgan, 87 Me. 419; Boutellev. Melendv, 

the consideration of a note by an agent is 19 JN. H. 196. Where, in a sale of an article 

mone^ advanced to him for the use of his subject to duty, the duty to be assessed was 

principal, under a mutual mistake of the reckoned at five cents a pound more than 

legal capacity of the principal to author- the true duty, and this excess was deducted 

ize the giving of such note by his agent, from the price to be paid, tiie vendor was 

and the lender, finding that neither the permitted to maintain an action therefor, 

principal nor the agent is legally bound Kenard v. Fiedler, 8 Duer (N. Y.) 318. 

upon the note, demands the money of the Where one of several debtors pays a debt 

agent before it is paid over to his principal, after it is barred by the statute, he cannot 

he may recover it of the agent in an action maintain a suit against the others. Wheat- 

of money had and received. Jefts v, York, field v. Brush Valley, 25 Penn. St. 1 12. 

10 Cush. (Mass.) 393. Where one with a Money voluntarily paid with full knowl- 

full knowledge of the facts voluntarily nays edge of the facts cannot be recovered back ; 

a demand unjustly made on him, ana at- but having the means of ascertaining the 

tempted to be enforced by legal proceed- real facts is not the same as actual knowl- 

ings, he cannot recover back the money, edge of them. Rutherford v, Mclvor, 21 

as paid by compulsion, unless there be Ala. 750. See Townsend v. Crowdy, 8 

fraud in the party enforcing the claim, C. B. N. 8. 477; 7 Jur. n. s. 71, support- 

and a knowledge that the claim is unjust; ing this last proposition. Where money 

and the case is not altered by the fact that has been paid to an agent under a mistake 

the partr so paying protests that he is not of fact, and the agent has either paid it 

answeraole, and gives notice that he shall over or settled his account with his prin- 

bring an action to recover the money back, cipal, and is guilty of no fraud in the 

Bensontr. Monroe, 7 Cush. (Mass.) 125. In matter, he is not liable t6 refund the 

this case the money had bieen paid by the money. Holland «. Rossell, 9 W. R. 787. 



PABT lY.] ASSUMPSIT. 118 

offered to return them, within a reasonable time.^ (a) So, where 
the money was paid upon an tigreement which has been rescinded^ 
whether by mutual consent, or by reason of fault in the defend- 
ant ; the plaintiff showing that the defendant has been restored 
to his former rights of property, without unreasonable delay.' (i) 
But if the agreement has been partially executed, and the parties 
cannot be reinstated in statu quo^ the remedy is to be had only 
under a special count upon the contract.^ Thus, where A was 
let into possession of a house belonging to B, under a parol 
agreement with the latter, that if A would make certain repairs, 
he should receive a lease for twelve years ; and he made the re- 
pairs, but B refused to grant the lease ; it was held, that A could 
not recover in assumpsit for the value expended in repairs, 
because it did not appear that the agreement was mutually 
rescinded.^ 

§ 125. Money reoelTed by an agent In regard to money received 
by an agents the general rule is, that the action to recall it must 
be brought against the principal only, since, in legal contem- 
plation, the receipt was by the principal, with whom the agent 
was identified. But the count for money had and received, 
against the agent alone, may be supported by proof that the 
principal was a foreigner, resident abroad; or, that the agent 
acted in his own name without disclosing his principal ; or, that 
the money was obtained by the agent through his own bad faith, 
or wrong, whether alone, or jointly with the principal ; or, that, 
at the time of paying the money into his hands, or, at all events, 

^ Toung 0. Adams, 6 Maaa. 182; Markle v. Hatfield, 2 Johns. 455; Keene v, Thomp- 
80D, 4 Gill & Johns. 468; Salem Bank v. Gloucester fiank, 17 Mass. 1; Id. 8S; Ray- 
mond V. Baar, 18 S. ft R. 818. 

* Gillett V. Maynard, 5 Johns. 85; Bradford v. Manley, IS Mass. 189; Connor v, 
Henderson, 15 Mass. 319. 

* Percival v. Blake, 2 C. & P. 514; Cash v. Giles, 8 C. ft P. 407; Reed v. McOrew, 
6 Ham. (Ohio) 886; Warner v. Wheeler, 1 Chipm. 159. 

« Hunt V. SUk, 5 East, 449; Beed p. Blandford, 2 Y. & J. 278. 

* Hopkins V. Richardson, 14 Law J. m. 8. 80, Q. B. 

(a) It seems to be established law in signature of the maker is genuine, it must 

Massachnsetts, that the action may be be returned prior to bringing an action, 

maintained without oflering to return a Coolidge v, Brigham, 1 Mete. 547. 

eounterfeit bank-note, for it is entirely (b) Where a party, under contract to 

worthless, and an offer to return it would sell land to one, conveys the same, with* 

be an idle ceremony. Kent v, Bomstein, out his consent, to another, the original 

12 Allen, 842. And so of counterfeit vendee is clearly entitled to regard his 

United States bonds. Brewster v. Bur- contract as rescinded, and to have restored 

nett, 125 Mass. 68. But if the thing has what he paid on the contract. Atkinson 

any lu/tie, e, g. if on a promissory note v. Scott, 86 Mich. IS. 
, there are foiged indorsements, but the 

VOL. IL 8 



114 LAW OP ETIDBNCB. [PABT IV. 

before he had paid it over, or had otherwise materiallj changed 
his situation or relations to the principal, in consequence of the 
receipt of the money, as by giving a new credit to him, or the 
like, he had notice not to pay it over to the principal.' But 
though he has not paid over the money, yet, if he is a mere col- 
lector or receiver, the right of the principal cannot be tried in 
this form of action.' 

§ 126. Aooonnt stated. In support of the count upon an ac- 
count stated, the plaintiff must show that there was a demand on 
his side, which was acceded to by the defendant, (a) There must 
be a fixed and certain sum, admitted to be due;^ but the sum 
need not be precisely proved as laid in the declaration.* The ad- 
mission must have reference to past transactions, that is, to a sub- 
sisting debt, or to a moral obligation, founded on an extinguished 
legal obligation, to pay a certain sum ; * but if the amount is not 
expressed, but only alluded to by the defendant, it may be shown, 
by other evidence, that the sum referred to was of a certain and 
agreed amount.* The admission may be shown to have been 
made to the plaintiff's wife, or other agent,^ but an admission in 
conversation with a third person, not the plaintiff's agent, is not 
sufficient.^ The admission itself must be voluntary, and not 
made upon compulsion ; ® and it must be absolute, and not quali- 
fied.'^ But it need not be express and in terms ; for if the account 
be sent to the debtor, in a letter, which is received but not replied 

1 Story on Agency, §§ 266-268, 800, 801; Paley on Agency, by Uoyd, pp. 888- 
804; 8 Chitty on Com. & Manaf. 218. 

« Ibid.; Sadler v. Evans, 4 Burr. 1984; Allen v. McEeen, 1 Sumn. 277, 278, 817. 

» Porter v. Cooper, 4 Tyrwh. 456, 464, 466; 8. c. 1 C. M. & ft. 887; Knowles 
p. Michel, 18 East, 249; Arthur v. Dartch, 9 Jur. 118; Perry v. Slade, 10 Jar. 31; 
Moseley v. Reade, Id. 18. An I O U is evidence of an account stated between the 
holder and the party signing it. Fessenmayer v. Adcock, 16 M. & W. 449. If the 
defendant has admitted a general balance, tlie plaiutiff may recover, without going into 
the particulars of the account. Gregory v. Bailey, 4 Haningt. 256. 

* Bull. N. P. 129. Proof of one item only, will support the count. Highmoie 
o. Primrose, 5 M. & S. 65, 67; Knowles v, Michel, 18 East, 249; Pinchon v. Chilcott, 
8 C. & P. 236. 

* Ckrke v, Webb, 4 Tyrwh. 673; s. c. 1 C. M. & R. 29; Tucker v, Barrow, 7 B. & d 
628; 8. 0. 8 C. & P. 85; Whitehead v, Howard, 2 B. & B. 872; Seagoe v. Dean, 3 
C. & P. 170. An I O U is admissible. Payne v, Jenkins, 4 C. & P. 824. 

« Dixon 9. Deverage, 2 C. & P. 109. 

7 Styart «. Rowland, 1 Sliow. 215; Bull. N. P. 129; Baynham v. Holt, 8 Jur. 968. 

B Bi^ckon V. Smith, 1 Ad. k El. 488. 

* Tucker v. Barrows, 7 B. & C. 628; 8. c. 8 C. & P. 85. 
w Evans v. Verity, Ry. & M. 289. 

{a) There must be an assent by the 81 K. T. 268; Stentonv. Jerome, 64 N. Y. 
party, to be charged, either express or 480. 
fairly implied. Yolkening v. De Graaf, 



PART IV.] ASSUMPSIT. 115 

to in a reasonable time, the acquiescence of the party is taken 
as an admission that the account is truly stated.^ So, if one 
item only is objected to, it is an admission of the rest.^ So, if 
a third person is employed by both parties to examine the ac- 
counts in their presence, and he strikes a balance against one, 
which, though done without authority, is not objected to, it is 
sufficient proof of an account stated.^ So, if accoimts are sub- 
mitted to arbitration, hy parole the award is sufficient proof of 
this count.^ 

§ 127. Same subject The original form, or evidence of the 
debt, is of no importance, under the count upon an account stated; 
for the stating of the account alters the nature of the debt, and 
is in the nature of a new promise or undertaking.^ Therefore, if 
the original contract were void, by the Statute of Frauds, or the 
Stamp Act,^ or if the items of the account were rents secured 
by specialty ,7 yet if, after the agreement is executed, there be ah 
actual accounting and a promise express or implied to pay, it is 
sufficient. It is not necessary to prove the items of the account ; 
for the action is founded, not upon these, but upon the defend- 
ant's consent to the balance ascertained.^ And it is sufficient if 
the account be stated of what is due to the plaintiff alone, with- 
out deduction of any counter claim of the defendant.® But a 
hanker* B passbook delivered to his customer, in which there are 
entries on one side only, is not evidence of an account stated 

1 AnU, vol. i. } 197. 

« Chisman v. Count, 2 M. & Or. 807. « 1 Steph. N. P. 861. 

* Keen v, Batshore, 1 Esp. 194. This caae of Keene v. Batshore is said by Pol- 
lock, C. B., to have been decided chiefly on the ground that, as there were no arbitra- 
tion bonds, and the parties must be presumed to have intended to do something, the 
arbitrator might well be regarded as tneir agent, examining and stating the accounts in 
their presence. Beyond this, its authority was denied in the recent case of Bates 
«. Townley, 12 Jnr. 606, in which it was held, that an award, made under a regular 
Babmission in writing, was no evidence of an account stated by either of the parties. 

» Anon., 1 Ventr. 268; Fosters. Allanson, 2 T. R. 479, 482, per Ashhurst, J., ibid. 
488, per Bnller, J. ; Holmes v, D'Camp, 1 Johns. 36, per Spencer, J. Therefore an 
account stated with a new firm mav sometimes include debts due to a former firm, or 
to one of the partners. David o. Ellice, 5 B. & C. 196. And see Gough v. Davies, 4 
Price, 200; Moor v. Hill, Peake's Add. Csa. 10. 

* Seairoe v. Dean, 8 C. & P. 170; s. c. 4 Bing. 459; Pinchon v. Chilcott, 8 C. & P. 
236; Te^ v. Auty, 2 B. & B. 99; Knowles v. Michel, 18 East, 249; Cocking v. Ward, 
1 M. G. & Sc. 858. 

7 Davidson «. Hanslop, T. Baym. 211; Moravia v. Jjevy, 2 T. R. 488, n.; Danforth 
V. Schoharie, 12 Johns. 227; Foster v. Allanson, 2 T. R. 479; Arthur v. Dartch, 9 Jur. 
118. But this doctrine was questioned in Gilson v. Stewart, 7 Watts, 100, and its ap- 
plication restricted to cases wnere the account inclnded other matters also, not arising 
Dj the specialty. 

s Bartlett «. Emery, 1 T. R. 42, n.; BnlL N. P. 129. 

* Styart v. Rowland, 1 Show. 215. 



116 LAW OP EVIDENCE. [PABT IV. 

between them, though the customer keeps the book in his custody, 
without making any objection to the entries contained in it^ 

§ 128. Same subject. It is not material when the admisnon 
was madey whether before or after action brought, if it be proved 
that a debt existed before suit, to which the conversation related.^ 
But whensoever such admission was made, it is not now held to 
be conclusive ; but any errors may be shown and corrected under 
the general issue.^ If the defendants were formerly partners^ 
and the admission was by one of them alone, in regard to things 
which were done before the dissolution of the firm, it seems to 
be considered sufficient.^ And where A admitted to an agent 
of B, that a balance was due from himself in respect to a bill of 
exchange, of which B was then, but unknown to A, the holder ; 
and afterwards A, having been informed that B held the bill, 
told the agent that he could not pay it; these two admissions, 
taken together, were held evidence of an account stated.^ But 
the admission, however made, in order to constitute an account 
stated, must have been made to the opposite party or his agent.^ 

§ 129. Same sabjeot If the plaintifP claims the money in a 
particular character or capacity, it will not be necessary for him 
to prove that character, under the count upon an account stated ; 
for the defendant, by accounting with him in that character, 
without objection, has admitted it.^ 

§ 129 a. Presumptions of Talue. Under either of the money 
counts, where the plaintiff proves the payment or receipt of 
money, in coins or bank-notes, without showing of what denomi- 
nation, the jury will be directed to presume the coins or notes 
to have been of the smallest denomination in circulation. Thus, 
where the delivery of a bank-note was proved, the amount of 
which did not appear, it was held that the jury were rightly 
directed to presume it a £5 note, that being the lowest denomina- 
tion issued.® 

1 Ex parte Randleson, 3 Deac. & Chitty, 584. And see Tarback v. Binsham, 2 
M. k W. 2. 

* Allen V, Cook, 2 Dowl. P. C. 546. 

> Thomas v. Hawkes, 8 M. & W. 140; Perkins v. Hart, 11 Wheat 287, 256; Holmes 
«. D'Canip, 1 Johns. 86. Formerly it was otherwise. Tmeman v. Hunt, 1 T. R. 40. 
8ee further, Harden v. Gordon, 2 Mason, 541, 561. 

^ ATiUf vol. i. § 112, and n. ' Baynham v. Holt, 8 Jur. 968. 

* Bates V, Townley, 2 Exch. 152, 12 Jur. 606. 

7 Peacock v. Harris, 10 East, 104; aiUe, toI. i. § 105. 

* Lawton v, Sweeney, 8 Jur. 964. And see also Dry Dock Co. v. Mcintosh, 2 HiU 
(N. Y. ), 290. 



PAST lY.] A8BUMPSIT. 117 

§ ISO. Pleaa in abatement The defendant^ 9 answer j in an 
action of assumpsit, is either by a plea in ctbatement, or by the 
general issue, or by a special plea in bar. In abatement of the 
suit, the more usual pleas are those of misnomer,^ coverture, and 
the omission to sue a joint contractor. Under the liberality with 
which amendments are permitted, the plea of misnomer is now 
rarely ti'ied. The plea of coverture is sustained by evidence of 
general reputation and acknowledgment of the parties and recep- 
tion of their friends, as man and wife, and of cohabitation as 
such.^ If coverture of the plaintiff is pleaded, it seems that proof 
of a solemn and unqualified admission by her, that she was mar- 
ried, will be sufficient to support the plea ; but that if the admis- 
sion is coupled with the expression of doubts as to the validity of 
the marriage, it will not be sufficient.^ 

§ 131. Non-Joinder. If the defendant pleads in abatement, that 
he made the contract yotn% with other persons, named in the plea, 
but not joined in the suit, the naming of these persons is taken 
as exclusive of any others; and therefore if it is shown, that there 
were more joint contractors, this will disprove the plea.* If to 
a declaration for work and labor, or upon several contracts, the 
defendant pleads in abatement the non-joinder of other contracts, 
it must be proved, that all the contracts were made by, or that 
all the work was done for, the persons named in the plea, and 
none others; for, if it should appear that one contract was made 
by, or one portion of the work was done for, the defendant alone, 
the plaintiff will have judgment for the whole, though as to the 
residue of the declaration the plea is supported ; for not being 
supported as to the whole declaration to which it is pleaded, 
it is no answer at all. Therefore, where, to account for work 
done, the defendants pleaded that it was done for them and 
certain others, and the plaintiff proved that it was done partly 
for them, and the residue for them and the others, he had judg- 
ment for the whole, the plea not being supported to the extent 
pleaded.^ But where the suit was against A, B, and G, for work 

^ S€e supra, tit Abfttement § 21. 

' Leader v, Biury, 1 Esp. 158; Kay v. Ducheaae de Pienne, 8 Campb. 128; Birt 
V. BarloWy 1 Doug. 171. See infrOf tit Marriage. 

' Mace V, Cadell, Cowp. 288; Wilson v. Mitchell, 8 Campb. 893. 

* Godson V. Good, 6 Taunt 587; 8. c. 2 Marsh. 299; EIa v. Rand, i N. H. 807. 

* HiU V. White k Williams, 6 Bing. N. C. 26; s. c. 8 Scott, 249; 8. c. 8 DowL 
P. C. 18; 8 Jnr. 1078. In this case, the case of Colson v, Selhy, 1 Esp. 452» was 
oirermled. 



118 LAW OP EVIDENCE. [PART lY. 

done for them, and the defendants pleaded the non-joinder of D, 
and it appeared that one portion of the work was done for A alone, 
another portion for A, B, G, and D, a third portion for A, B, and 
D, and a fourth for A and B, but none for A, B, and C, only ; the 
plea was held supported, as an answer to the action, the plaintiff 
failing to prove any claim against the particular parties sued.^ 
If the persons not joined are described in the plea as assignees 
of a bankrupt contractor, the assignment itself must be proved, 
unless the fact has been admitted by the other party; proof of 
their having acted as such not being deemed sufficient.^ And in 
the trial of this issue of the want of proper parties defendant, the 
contracting party not sued, though ordinarily incompetent as a 
witness for the defendant, by reason of his interests, may be 
rendered competent by a release.' 

§ 132. Same subject. Proof. Tliis plea, to a count for goods 
sold, may be supported by proof that they were ordered by the 
defendant jointly with the other person named; or, that such 
had been the previous and usual course of dealing between the 
parties ; or, that partial payments had been made on their joint 
account. 

§ 133. Same subject. Death. If one or two joint contractors is 
decui, and the survivor is sued, as the sole and several contractor, 
it will not be sufficient for the plaintiff, in answer to a plea of non- 
joinder, to reply the fact of his death, for this would contradict 
his declaration upon a separate contract, by admitting a joint one.^ 
In all actions upon contract, the defendant has a right to require 
that his co-debtor should be joined with him ; and the plaintiff 
cannot so shape his case as to strip him of that right, or of the 
benefit, whatever it may be, of having his discharge stated on the 
record. The plaintiff is not at liberty, in the first instance, to 
anticipate what may ultimately perhaps be a discharge. The prac- 
tice has ever been to join all the contracting parties on the record ; 
thus giving to the party who is joined notice at the time, and en- 
abling him at any future time to plead the judgment recovered on 

1 Hill V. White, Williams & Boulter, 6 Bing. N. C. 28; 8. c. 8 Soott, 245; 8. c. 8 
Dowl. P. C. 63; 8 Jur. 1077. If some confess the action by defanlt, yet the plaintiff 
cannot have judgment unless he proves a contract by alL Robeson v. Oanderton, 9 
C. & P. 476; Elliott v. Morgan, 7 C. & P. 834. 

* Pasmore v, Bousfield, 1 Stark. 296. See farther as to this plea, supra, tit Abate- 
ment, §§ 24, 25. 

« AnU, Tol. i. |§ 395, 426, 427. 

* Bovill v. Wood, 2 M. & S. 25, per Le Blanc, J. 



PART lY.] ASSUMPSIT. 119 

the joint debt, without the help of averments ; and likewise ad- 
vancing him one step in the proof necessary in an action for con- 
tribution. Such was the judgment of Lord Ellenborough, in a 
case in which it was held, that, though one of the joint contractors 
had become bankrupt and obtained his discharge, a replication of 
this fact was no answer to a plea of non-joinder in abatement ; for 
though he was discharged by law, he was not bound to take the 
benefit of it.^ If he pleads the discharge, the plaintiff may enter 
a nolle prosequi as to him, and proceed against the other.^ It has 
been held in England, that this course was proper only in cases of 
bankruptcy ; and that a replication of infancy or coverture of the 
person not sued was a good answer to a plea of non-joinder ; for 
that the plaintiff could not, in such case, enter a nolle prosequi as 
to one joint contractor, without discharging all, and, therefore, 
that he had no remedy but in this mode.^ But in the American 
courts, the entry of a nolle prosequi^ and its effect, have been re- 
garded as matters of practice, resting in the discretion of the 
court; and accordingly, wherever one defendant pleads a plea 
which goes merely to his personal discharge, the contract, as to 
him, being only voidable, and not utterly void, the plaintiff has 
been permitted to enter a nolle prosequi as to him and proceed 
against the others.^ It would seem, therefore, that in the Ameri- 
can courts the replication of infancy, or other personal immunity 
of the party not joined, would not be a good answer to a plea of 
non-joinder in abatement, unless such party had already made his 
election and avoided the contract.^ 

§ 134 Same snbjeot. Partnership. Where the joint liability 
pleaded arises from partnership with the defendant, it must be 
proved to have openly existed, not only at the time of making the 
contract, but in the same business to which the contract related. 
The partnership may be proved by evidence of any of the outward 
acts and circumstances, which usually belong to that relation, 
brought home to the knowledge of the plaintiff. But if the part- 
nership is dormant, and unknown to the plaintiff, or if it is known, 

1 BoTill 9. Wood, 2 M. fc S. 28 ; 2 Rose, 156 ; Hawkins v, Bamsbottom, 6 Taunt. 
179. 

* Noke V, Ingham, 1 Wils. 89. 

* Chandler v. Parks, 8 Esp. 76 ; Jaffray v. Frebain, 5 Esp. 47. See also Burgess v. 
Merrill, 4 Taunt. 468; 1 Chitty on Plead. 49, 52. 

^ Woodward v. Newhall, 1 Pick. 600; Hartness v. Thompson, 6 Johns. 160; Minor 
V, Mechanics' Bank« 1 Peters, 46; Salmon v. Smith, 1 Saund. 207 (2), by Williams. 

* Gibbe v. Menr^ 8 Taunt. 818, 814, per Mansfield, C. J. 



122 LAW OP EVIDENCE. [PABT IV. 

action of assumpsit, there is an embarrassing conflict in the de- 
cisions. A distinction, however, has been taken between those 
cases where the consideration was the conveyance of real property, 
and tliose where it was wholly of a personal nature, such as goods 
or services ; and also between a total and a partial failure of the 
consideration. Where the consideration is personal in its nature, 
and the failure is totals or the defendant has derived no benefit at 
all from the services performed, or none beyond the amount of 
money which he has already advanced, it seems agreed, that this 
may be shown in bar of the action.^ If, in an express contract 
for a stipulated price, the failure of a similar consideration is 
partial ofdyy the defendant having derived some benefit from the 
consideration, whether goods or services, and the count is special, 
upon the express contract, the English rule seems to be, not to 
admit it to be shown in bar pro tanto^ but to leave the defendant 
to his remedy by action ;^ unless the quantwm to be deducted is 
matter susceptible of definite computation.' But where the plain* 
tiff proceeds upon general counts, the value of the goods or ser- 
vices may be appreciated by evidence for the defendant.^ The 

1 Jackson v. Warwick, 7 T. R 121; Templer v. McLachlan, 2 N. R. 136, 139; 
Farnsworth v. Garrard, 1 Campb. 38; Daz v. Ward, 1 Stark. 409; Moigan v. Rich- 
ardson, 1 Campb. 40, n.; 9 Moore, 159; Tye v. Owinne, 2 Campb. 846. 

> Templer v, McLachlan, 2 N. R. 136 ; Franklin v. Miller, 4 Ad. k £1. 599 ; 
Orimaldi «. White, 4 Esp. 95 ; Denew v. Davereli, 8 Campb. 451 ; Basten v. Batter, 
7 East, 488, per Ix)rd EUenborough ; Sheels v, Davies, 4 Qunpb. 119 ; Crowninshield 
V. Robinson, 1 Mason, 93, ace. But see cmUra, Okell -o. SmiUi, 1 Stark. 107 ; Chapel 
V. Hicks, 2 Cr. & M. 214 ; 4 Tyrwh. 43 ; Cutler v. Close, 5 C. & P. 887. 

* Day V, Nix, 9 Moore, 159. See also Parish v. Stone, 14 Pick. 198, 210. 

* Denew v. Dayerell, 3 Campb. 461 ; Basten v. Butter, 7 East, 479 ; Farnsworth v. 
Garrard, 1 Campb. 88 ; Fisher v. Samuda, Id. 190 ; Kist v. Atkinson, 2 Campb. 63; 
Bilbie v. Lumley, 2 East, 469 ; 1 Mason, 95, per Story, J., ace ; Miller v. Smith, Id. 
437 ; 2 Smith's Leading Cases, pp. 14, 15. In the second American edition of the 
last-cited work, the doctrine recognized in this country, which seems to accord in its 
main principles with that of Wesmiiister Hall, is well stated in the notes of Mr. 
Wallace, as follows : " Where there has been a special contract, and the plaintiff's duty 
has been executed and closed, he may either declare specially on the contract, or main- 
tain general assumpsit. It is important to observe the different ground on which thefie 
two actions rest, and the difference in the proceedings to which they give rise. The 
special assumpsit is brought upon the express contract. Unless the plaintiff can show 
that he has fulfilled with legal exactness all the terms of the contract, he can recover 
nothing. See Morford v. Mastin & Ambrose, 6 Monroe, 609 ; and compire with it 
B. 0. in 8 J. J. Marsh. 89 ; Taft v. Inhabitants of Montague, 14 Mass. 282 ; 
Gregory v. Mack, 8 Hill (N. Y.), 880. But if his performance has been according to 
the terms of the contract, and has resulted in an available and practicid work of the 
kind required, so that the plaintiff is capable of maintaining his special action at all, 
he is entitled at common law to recover the whole compensation fixed by the contract, 
and the defendant mnst resort to a cross-action, to recover damages for faults in the 
manner of performance, or for breaches of a warranty. See Everett v. Gray ^ a/., 1 
Mass. 101, where there was a special count. It is true that, in such case, a recovery 
may be defeated Iw proof of fraud, for fraud vitiates every sale ; but upon a contract 
of sale, where performance has been accepted, the defendant cannot set up this defenoe, 



PABT TV.] ASSnUPSIT. 128 

American courts, to avoid circuity of action, have of late per- 
mitted a partial failure of consideration to be shown in defence 
pro tanto in all suits on contracts respecting personal property or 

unless he bas Tetomed the article or given notice as soon as the variance is discovered, 
for thereby he rescinds hui acceptance of the performance ; if he does not, he cannot 
set up this defence, for the plaintiff should have been allowed an opportunity to make 
other use of the airtide, and the defendant's delay and silence would be a counter 
firaud in him ; uuless he can show that the plaintiff could not possibly have been in- 
jured by the non-return, which is only where the article is wholly useless ; therefore, 
on a sale, a special cuunt can only be defeated for fraud, where the article has been 
returned, or is proved to be wholly worthless. Burton v. Stewart, 8 Wend. 286 ; Van 
Epps p. Harrison, 5 Hill, 64. See Thornton v. Wynn, 12 Wheat. 188 ; Cose v. John, 
10 Watts, 107. 

" But if the plaintiff, having executed his part of the contract, brings general as- 
Bumpeit, the ground of his recovery is not the defendant's special contract or promise, 
but ne rests wholly on the implied legal liability of the defendant to recompense him 
for a service which has been aone at the defendant's request ; the defendant not being 
allowed to defeat the plaintiff by setting up a special contract which he himself has 
broken, by not paying at the appointed time. The nature of the action, and the legal 
ground of the recovery, therefore, are precisely the same as they are where there has 
been in &ct no special contract at all ; the rule that the ])laiiitiff cannot recover beyond 
the rates of recompense fixed by the contract being merely a rule of evidence, founded 
not only upon those rates being necessarily the most reasonable measure of values in 
the particular case, but upon the consideration that the defendant's previous request, 
or subsequent acceptance, which is relied upon, was conditioned upon the charges being 
at those specified rates. Accordingly it results necessarily from the cround and nature 
of the action, that, when the plaintiJBf declares generally, the defendant may show, in 
reduction of damages, everything that goes directly to the consideration, and immedi- 
ately affects the value of the work ; for the assumpsit which the law implies, whether 
in quantum rruruit, or indebitatus, is always commensurate with the actual final value 
of the article or work. This principle, in respect to indebitatus assumpsit, is decided 
in Heck v. Shener, 4 Serg. & Rawle, 249, the distinction beinc^ between those torts or 
breaches of contract which go entirely to the consideration, and those which are dehors, 
and collateral to it ; the latter not being admissible. Gogel v. Jacoby, 5 S. & R. 117. 
The defendant, therefore, may show defects in the work or service, and if the plaintiff 
refera to the contract as evidence of the fair price of the work or article, the defendant 
may show that this price was predicted upon a warranty of quality which has proved 
false ; in short, from the very nature of the claim which the plaintiff has chosen to 
make, the defendant m^ prevent his recovering more than the real, inherent value 
of the consideration. This is not an anomaly or innovation of the law ; at least, the 
law has necessarily been thus ever since it has been settled that general assumpsit is 
maintainable after the performance of a special contract ; it is evident from the cases 
cited in Basten v. Butter, 7 East, 479, and notes, that Lord Eenyon had ])reviously 
more than once ruled the point differently from BuUer, even if Broom v. Davis, ruled 
by the latter, was not, what it probably was, a special count ; and Lord Eenyon was 
not very greatly given to innovation. The cases of Mills and othera v. Bainbridge, 
and Templer v. McLachlan. in 2 New Reports, 136, 137, accord entirely with the dis- 
tinction above noted. [But Templer v, ifcLachlan is not now regarded as law. See 
note to the case in Day's edition.] The neglects there complained of did not go to the 
consideration of the assumpsits there declared upon, the service for which the assump- 
sit waa brought having been, in both cases, completely performed ; but were collateral 
torta. In this country it may be considered as perfectly settled, that when the plaintiff 
brings general assumpsit, when there has been a special contract, the defendant may 
give in evidence, in reduction of damages, a breach of warranty, or a fraudulent mis- 
representation, without a return of the article. McAllister v, Reab, 4 Wend. 488, 
affirmed on error, in 8 Wend. 109 ; Still v. Hall, 20 Wend. 61 ; Batterman r. Pierce, 
8 Hill (N. Y.), 172 ; Steigleman v. Jeffries, 1 Seig. & Rawle, 477, &c. In like 
manner, defects in the work or article must be given in evidence if this foim of action 
be brought. Grant v. Button, 14 Johns. 877 ; King & Mead v. Paddock, 18 Johns. 
141." See 2 Smith's Leading Cases, pp. 27, 28 (2d Am. ed.). 



124 LAW OP EVIDENCE. [PABT IV. 

services ; ^ only taking care that the defence shall not take the 
plaintiff bj surprise.^ But where the consideration consists of 

^ 22 Am. Jur. 26 ; 2 Kent, Comm. 478, 474 ; Barker v. Prentiss, 6 Mass. 480 ; 
Parish V. Stone, 14 Pick. 198 ; Folsom v. Mussey, 8 Greenl. 400 ; Reed v. Prentiss, 1 
N. H. 174 ; Shepherd v. Temple, 8 N. H. 455 ; HQls v. Banister, 8 Cowen, 81; 
McAllister v. Beab, 4 Wend. 488 ; Keab v, McAllister, 8 Wend. 109 ; Todd v. Galla- 
gher, 16 S. k R. 261 ; Christy v. Reynolds, Id. 258 ; Evans v. Gray, 12 Martin, 475, 
647 ; Spalding V. Vandercook, 2 Weud. 431 ; Hay ward v. Leonard, 7 Pick. 181; Cone 
V. Baldwin, 12 Pick. 545 ; Pegg v. Stead, 9 C. & P. 636. In the case of Parish v. 
Stone, aboye cited, the jury found that a part of the consideration of the note declared 
upon was for services rendered by the plamtiff to the defendant's testator, and that the 
residue was intended as a mortuaiy gift, and the question was, whether the plaintiff 
was entitled to recover for that part only which was good and valid in law. In deliver- 
ing the judgment of the court upon thia question, the law was thus stated by Shaw, 
C. J. : " Had the note been taken for two distinct li(iuidated sums, consolidated, and 
the consideration had beim wholly wanting, or wholly failed as to one, it seems quite 
clear, that, according to well-established principles, supported by authorities, the note, 
as between the original parties, and all those wno stand in such relation as to allow the 
defence of want of consideration, it would be competent to the court to apportion and 
consider it good in part, and void in part, and to permit the holder to recover 
accordingly. 

** In Bayley on Bills (Phillip and Sewall's ed.), 840, and in most other text-books, 
it is laid down, that want or failure of consideration is a good defence as between im- 
mediate parties, or holders without value, either total or pro tantOf as the failure goes 
to the whole or part of the consideration. Barber «. Backhouse, Peake, 61. Where 
there was originally no consideration, for part of the sum expressed in the bill, the 
jury may apportion the daoiages. Per Lord Kenyon, Darnell v. Williams, 2 Stark. 
166. 

" That the holder in such case recovers on the note, and not on the original con- 
sideration, is rendered manifest by another series of decisions, thereby showing that 
the note is good pro tarUo, as a negotiable instrument, upon which a holder by in- 
dorsement may sue and recover ; whereas the right to recover upon the original con- 
sideration would not be negotiable, and would not vest in the nolder of the note by 
indorsement. 

** It being held that when a bill or note is made without value, or as an accom- 
modation note, this may be shown as a good defence against the payee; it is also held 
as a principle absolutely essential to the currency of bills and notes, that where an in- 
dorsee takes a bill for valuable consideration, or derives title through any one who has 
paid value for it, he shall recover to the amount, notwithstanding it was originally 
made without value, and as an accommodation bill. It follows, as a necessary conse- 
quence, from these two principles, that where an indorsee of an accommodation bill 
has taken it for value, but for less than the amount expressed by the bill, there the 
holder shall recover only to the amount for which he has given value. Jones v. Hib- 
bert, 2 Stark. 804. In that case the defendant accepted a bill for £415, to accommo- 
date Phillips & Co., who indorsed it to their bankers for value, and became bankrupt; 
the bankers knew it to be an accommodation acceptance, and their demand against 
Phillips & Co. was £265 only ; it was held that they could only recover the £265, and 
they had a verdict accordingly. 

** So where a bill accepted as a gift to the payee is indorsed for a small considera- 
tion, the indorser can recover only to that extent. Nash v. Brown, Chitty on Bills 
(5th ed. ), 93. 

" From these cases it is manifest, that the plaintiff recovers on the bill, and not on 
the original consideration; otherwise the right to sue and recover pro tanto would not 
pass to the indorsee by the negotiation of the bill. They therefore establish the propo- 
sition, that where the parts of a bill are divisible, making an aggregate sum, and as to 
one liouidated and definite part there was a valuable consideration, and as to the other 
part there was no consideration; the bill, as such, may be apportioned, and a holder 
may recover for such part as was founded on a good consideration. 



> Runyan v. Nichols, 11 Johns. 547; People v. Niagaia C. P., 12 Wend. 246; Reed 
V. Prentiss, 1 N. H. 174, 176. 



PART IV.] ASSUMPSIT. 125 

real estate, conveyed by deed, with covenants of title, promissory 
notes being given for the purchase-money, the better opinion 

"Bot it is contended that where the parts of the bill are not lionidated, and dis- 
tinguishable by Gompntation, a different rule prevails, and several English cases are 
relied on to show, that, though the consideration fails, in part, the whole bill is recov- 
erable. Moggridge v. Jones, 14 East, 486 ; Morgan v, Richardson, 1 Campb. 40, n.; 
Tye V, G Wynne, 2 Campb. 346; Grant v. Welchman, 16 East, 206. In these cases it 
was held, that where tne note was ^ven for an entire thing, and the consideration 
afterwards failed in part, the whole bill was recoverable, and the defendant was left to 
his cross-action. As where the note was given for a lease, and the lease was not com- 
pleted acconling to contract; or for a parcel of hams, and they proved bad and un- 
marketable; or for goods, and they were of a bad qualitv and improperly packed; or 
for an apprentice-fee, and the apprentice was not kept by nis master. 

" In this respect, there seems to be some distinction between the English decisions 
and those of New York. In the latter it was held, that upon a suit between original 
parties, npon a note giyen npon a contract to manafacture casks, the defendant might 
go into evidence to uiow that the casks were unskilfully manufactured, to reduce the 
amount of damages. 

" But without relyiiM^ upon this difference, we think the English decisions may be 
well reconciled, by a reference to the known distinction between failure of consiaera- 
tion and want of consideration. 

"All the cases put are those of failure of consideration, where the consideration 
was single and entire, and went to the whole note, and was good and sufficient at the 
time the note was given, but by some breach of contract, mistake, or sccident, had 
afterwards failed. There the rule is, if the consideration has wholly failed, or the con- 
tract been wholly rescinded, it shall be a good defence to the note. But if it have 
partially failed only, it would tend to an inconvenient mode of trial and to a confusion 
of rights, to try such question in a suit on the note, as a partial defence, and therefore 
the party complaining shall be left to his cross-action. This distinction, and the con- 
sequence to be drawn from it, is alluded to by Lord Ellenborough in Tye v, Gwynne, 2 
Campb. 846. He says, ' There is a difference between want of consideration and fail- 
ure of consideration. The former may be given in evidence to reduce the damages ; 
the latter cannot, but furnishes a distinct and independent cause of action.* It seems, 
therefore, very clear, that want of consideration, either total or partial, may always be 
aboMrn by way of defenoe; and that it will bar the action, or reduce the damages, from 
tbe amount expressed in the bill, as it is found to be total or partial respectively. It 
eannot, therefore, in such case, depend upon the state of the evidence, whether the 
different parts of the bill were settled and liquidated by the parties or not. Where the 
note U intended to be in a great degree gratuitous, the parnes would not be likely to 
enter into rery particular stipulations as to what should be deemed payment of a debt, 
and what a gratuity. The rule to be deduced from the cases seems to be this, that 
where the note is not given upon any one consideration, which, whether good or not, 
whether it fail or not, goes to the whole note at the time it is made, but for two dis- 
tinct and independent considerations, each going to a distinct portion of the note, and 
one is a consiatfration which the law deems valid and sufficient to support a contract, 
and the other not, there the contract shall be apportioned, and the holder shall recover 
to the extent of the valid consideration, and no further. In the application of this 
principle, there seems to he no reason why it shall depend upon the state of the evi- 
dence, showing that these different parts can be ascertained by computation; in other 
words, whether the evidence shows tnem to be respectively liquidatea or otherwise. If 
not, it would seem that the fact, what amount was upon one consideration, and what 
upon the other, like every other questionable fact, should be settled by a jury upon 
the evidence. This can never operate hardly npon the holder of the note, as the pre- 
mmption of law is in his fayor, as to the whole note; and the burden is upon the de- 
fendant to show, to what extent the note is without consideration." Bee 14 Pick. 
208-211. 

In New York the riffht of recoupment of damages is allowed, though the damages 
reanlt from a mere breacn of contract, and are unliquidated; and though the action oe 
upon a specialty; under the provision of Rey. Stat. vol. ii. p. 504, § 96 [77]. See Van 
Enps V. Harrison, 6 Hill, 63; Batterman v. Pierce, 8 Hill, 171; Itss v. Van Epps, 22 
Wend. 156. 



126 LAW OP EVIDENCE. [PABT IV. 

seems to be, that, on common-law principles, the covenants in 
the deed constitute a sufScient consideration for the notes, and 
that the failure of title constitutes no ground of defence to an 
action upon them.^ In some of the United States, however, this 
defence has been allowed.* 

§ 136 a. Entire oontraot Where the contract is entire ^ the gen- 
eral rule is, that if the plaintiff has failed to perform the whole 
on his part, he can recover nothing ; for being entire, it cannot be 
apportioned. And this rule has been often applied to contracts 
for labor and service for a certain term of time, where the party 
had served only a part of the time. But it is also conceded, that 
if the part performance of a contract is beneficial to the promisee, 
and has been accepted by him, though the other party can main- 
tain no action upon the original contract, his part of which he 
has failed to perform, yet he may maintain a general assumpsit 
for the actual value of his labor and materials which the promisee 
has accepted and enjoyed. Whether the defence of failure of 
performance of the entire contract can be sustained in an action 
for the value of labor and services, upon the common counts, is a 
question upon which judges are not perfectly agreed. On the one 
hand, it has been maintained with great force of reason, and so 
adjudged, that the party contracting for labor merely, for a certain 
period, does so with full knowledge that he must, from the nature 
of the case, be accepting part performance from day to day, if 
performance is commenced ; and with knowledge, also, that the 
other may eventually fail of completing the entire term ; and that, 
therefore, he ought to pay the reasonable value of the benefit, 
which, upon the whole, he has thus derived, over and above the 
damage which may have accrued to him from the non-performance 
of the original contract.^ But the general current of decisions is 
to the contrary ; the courts holding that this case is not to be dis- 
tinguished in principle from other cases of failure to perform an 
entire contract.* 



1 lioyd V. Jewell, 1 Greenl. 852, and n. to 2d ed. ; Howard v, Witham, 2 Greenl. 
890; Knapp v. Lee, 8 Pick. 452; Vibbard v. Johnson, 19 Johns. 77; Whitney v, Lewis, 
21 Wend. 181, 134; Greenleaf v, Ck>ok, 2 Wheat 18; Fulton f'. Griswold, 7 Martin, 
228; 22 Am. Jur. 26; 2 Kent, Comm. 471-478. 

* 2 Kent, C!omm. 472, 478; 22 Am. Jur. 26. 

» Britton v. Turner, 6 N. H. 481. 

« See Stark v. Parker, 2 Pick. 267 (2d ed.), notes ; Olmstead v. Beale, 19 Pick. 528; 
Pordage v. Cole, 1 Saund. 820, n. (4) ; Peeters v. Opie, 2 Saund. 852, n. (8), by 
Williams ; Badgley v. Heald, 5 West Law Jour. 892. 



PABT IT.] ATTOBNETB. 127 



ATTORNEYS. 

§ 137. Attorneys at law. Under this title, it is proposed to 
treat only of Attorneys at Law, and of the remedies in general, 
and at common law, between them and their clients, the subject 
of attorneys in fact having been already treated under the head of 
Agency. The peculiar remedies, given by statutes and rules of 
court, in England, and in some few of the United States, being 
not common to all the American States, and applicable to but few, 
will not here be mentioned. 

§ 138. Suits for fees, and injuries to professional oharaoter. Ac- 
tions by attorneys, as such, are ordinarily brought either to recover 
payment torfees^ disbursements, and professional services, or to 
recover damages for slander of their professional character. In 
the latter case, it seems generally necessary for the plaintiff to 
prove, by the book of admissions, or by other equivalent record 
or documentary evidence, that he has been regularly admitted and 
sworn ; with proof that he has practised in his profession.^ (a) 
But where the slanderous words contained a threat by the de- 
fendant that he would move the court to have the plaintiff 
struck off the roll of attorneys, this was held an admission that 

1 Jones V. Stevens, 11 Price, 235. And see Green v. Jackson, Peake's Cas. 286. 

(a) It has been held that a statutory pro- of a State was not a privilege or iTnrounity 
Tiflion limiting the right to practise as an belonging to citizens of the United States 
attorney at law to free white male citizens as such, and consequently was not under 
wasDotobnoxionsto the fourteenth amend- the protection of toe fourteenth amend- 
oifnt of the Constitution of the United ment. The court of Maryland according- 
States. Me Taylor, 48 Md. 28. The four- ly refused admission to the bar to a negro 
teenth amendment provides, tn/eraZia, that applicant. i2e Taylor, 48 Md. 28. 
'* no State shall make or enforce any law In regard to the admission of women 
which shall abridge the privileges or im- to the bar, it may be said, in general, that 
inanities of citizens of the United States." in absence of express statutory provisions 
The United States Supreme Court, in the the courts have considered themselves ob- 
Slanghter House Cases, 16 Wall. 36^ held lised to refuse them admission. Re Good- 
that the amendment had reference only to ell, 89 Wis. 232; He Bradwell, 55 111. 535; 
the rights and immunities belonging to Robinson's Case, 131 Mass. 876; Lock- 
citizens of the United States as such, as wood's Case, 9 Ct of CI. 346, p. 856. But 
contradistinguished from those belonging in some States statutes have oeen passed 
to them as citizens of a State. And in authorizing the admission of women to 
Brulwell v. State, 16 Wall. 130, the same practice as attorneys at law. Wis. R. S. 
coartheld that the right to be admitted to (1878) § 2586; Mass. Stats. 1882, c 189. 
practice as an attorney at law in the courts 



128 LAW OP EVIDENCE. [PABT IV. 

the plaintijBf was an attorney, sufficient to dispense with further 
proof.i 

§ 139. Retainer. When the suit is by an attorney, for fee9^ 
etc., he must prove his retainer, and the fees and services charged. 
The retainer may be proved by evidence, that the defendant at- 
tended upon the plaintiff, at his office, in regard to the business 
in question ; or, that he personally left notices or executed otlier 
directions of the plaintiff ; or, that he was present and assisting 
at the trial, while the plaintiff was managing the cause in his 
behalf ; or, that he has spoken of the plaintiff, or otherwise recog- 
nized him, as his attorney.* (a) If the retainer was to commence 
a suit, which was afterwards abated by a plea of non-joinder, this 
is sufficient evidence of authority to commence another suit against 
the parties named in the plea.^ So, after an award made against 
a party, a retainer to " do the needful," is an authority to do all 
that is necessary on the part of the client, to carry the award into 
complete effect.* So, where money was placed in the attorney's 
hands to invest for his client, with discretionary power " to do for 
her as he thought best," and he lent tlie money on mortgage, but, 
discovering that the security was bad, sued out a bailable writ 
against the borrower, in his client's name, it was held a sufficient 
retainer for this purpose.^ It has, however, been laid down as a 
general rule, that a special authority must be shown to institute 
a suit, though a general authority is sufficient to defend one ; and 
accordingly, where one, acting under a general retainer, as so- 
licitor, undertook to defend a suit at law brought against his 

1 Berryman v. Wise, 4 T. R. 386 ; arUe, vol. i. § 195, n. 

* Hotchkiss «. Le Roy, 9 Johns. 142 ; Burghart v, Gardner, 8 Barb. S. C. 64. 
Sworn to an answer signed by the attorney. Harper v. Williamson, 1 McOord, 156. 
But where one attorney does busineds for another, it is presumed to be done on the 
credit of the attorney who employed him, and not of the client. Scrace v. Whitting- 
ton. 2 B. & C. 11. 

» Crook V. Wright, Ry. k M. 278. * Dawson v, Lawley, 4 Eap. 65. 

• Anderson v, Watson, 3 C. & P. 214. But see Tabran «. Horn, 1 M. & R. 228. 

(a) The authority of an attorney who the sendees of a counsellor at law who acts 

has been employed by a director, or other as senior counsel at the trial, in his pres- 

analogous officer, of a corporation, to ap- ence, in consultation with him, and with- 

pear for it, without any specific vote there- out objection from him, under a retainer 

for, and who has been paid for his services for that puqxise by the attorney of record, 

by the corporation, is sufficiently proved, although there was a secret agreement be- 

Field V, Proprietors, &c., 1 Cush. (Mass.) tween him and the attorney of record that 

11. See also Manchester Bank V. Fellows, such services should be paid for by the 

28 N. H. 802. A party to a suit, in which latter. Brigham v. Foster, 7 Allen (Mass.), 

the employment of senior counsel is neces- 419. 
sary, is liable for the reasonable value of 



PABT IV.] ATTOBNBTB. 129 

client, upon certain promissory notes, and filed a bill in chancery 
to restrain proceedings in that suit, the bill was ordered to be 
dismissed, with costs, to be paid by the solicitor, as having been 
filed without authority.^ If two attorneys occupy the same office, 
one being ostensibly the principal, and the other his clerk, under 
an agreement that the latter shall receive all the benefit of the 
common-law business, those who employ the persons in the office 
will be presumed to employ them upon the terms on which busi- 
ness is there done ; and, therefore, in a suit by the clerk for the 
fees of common-law business, those terms are competent evidence 
of a retainer of him alone.* So, where two attorneys dissolved 
an existing partnership between them, but a client, with means 
of knowledge of that fact, continued to instruct one of them in a 
matter originally undertaken by the firm, this was held sufficient 
evidence that the joint retainer had ceased.^ 

§ 140. In case of partnenhip. But where solicitors are in part- 
nershipj they cannot dissolve their partnership, as against the 
client, without his consent, so as to discharge the retiring partner 
from liability ; much less can the retiring partner, in such case, 
accept a retainer from the opposite party.* 

§ 141. Bffeot of retainer. The effect of a retainer j to prosecute 
or defend a suit, is to confer on the attorney all the powers exer- 
cised by the forms and usages of the court in which the suit is 
pending.* (a) He may receive payment ; ® may bring a second suit 

1 Wright V. Castle, S Meriv. 12. 

' Pinley v. Bagnall, 3 Doug. 155. So if both, bein^ partners, were in fact em- 
ployed, but only one was an attomev of the court, and did the business there, yet both 
may jointly recover. Arden v. Tucker, 4 B. & Ad. 815 ; 5 C. & P. 248. Unless the 
other was but a nominal partner. Kell v. Nainby, 10 B. k C. 20. And see Ward v. 
Lee, 18 Wend. 41 ; Simon v. Bradshear, 9 Rob. (La.) 59. 

« Perrins v. Hill, 2 Jurist, 868. 

* Cholmondeley (Earl oO v. Lord Clinton, Coop. Ch. Cas. 80 ; 8. c. 19 Yes. 261, 
273; Cook v. Rhodes, 19 Ves. 278, n. ; Walker v. Goodrich, 16 111. 841. 

* Smith V. Bosaid, 2 McCord, Ch. 409. 

^ Langdon v. Potter, 18 Mass. 820 : Brackett v. Norton, 4 Conn. 517 ; Gray v. 
Waa, 1 GreenL 257; Erwin v. Blake, 8 Pet. 18 ; Cora's v. Rose, 1 Desaus. 469; Hud- 
son V, Johnson, 1 Wash. 10 ; Ducett v. Cunningham, 89 Me. 886. 

(a) Where a sworn attorney of the fied, the party cannot nre eridence, on 
court enters his appearance for a party, the trial of the cause, that the attorney 
the party is boona by any admissions had no authority in fact. Lewis v. Sum- 
made by him in writing, though out of ner, 18 Met. (Mass.) 269. If it appear by 
eoort, concerning the facts in the cause, the record that the defendant appeared by 
until the appearance is withdrawn, or the attorney, he may disprove the authority of 
party revokes tiiie attorney's authority, and such attorney. Hess v. Cole, 8 Zab. (N. J. ) 
gi^es notice of the revocation; and until 116. Contra, Kent v. Ricards, 8 Md. Ch. 
the appearance is withdrawn, or the au- Decis. 892. See also Fowler v. Morrill, 8 
thority revoked and the revodation noti- Texas, 158, where it is held that the au- 

VOL. II. 9 



180 LAW OP EVIDENCE. [PART IV, 

after being nonsuited in the first for want of formal proof ; ^ may 
sue a writ of error on the judgment;^ may discontinue the suit ; ' 
may restore an action after a noL pros.;^ may claim an appeal, 
and bind his client by a recognizance in his name for the prosecu- 
tion of it ; ^ may submit the suit to arbitration ; ^ may sue out an 
alias execution;^ may receive livery of seisin of land taken by 
extent ; ^ may waive objections to evidence, and enter into stipu- 
lations for the admission of facts, or conduct of the trial ;^ and 
for release of bail ; ^ may waive the right of appeal, review, notice, 
or the like, and confess judgment.^ But he has no authority to 
execute any discharge of a debtor, but upon the actual payment 
of the full amount of the debt,^ (a) and that in money only ; ^ nor 

1 Scott V, Elmendorf, 12 Johns. 815. * Grosyenor v. Danforth, 16 Mass. 74. 

s Gaillard v. Smart, 6 Cow. 885. ^ Reinhold v. Albert!, 1 Binn. 469. 

' Adams v. Robinson, 1 Pick. 462. 

< Somera v, Balabrega, 1 Dall. 164 ; Holker v. Parker, 7 Cranch, 436 ; Backland 
V. Conway, 16 Mass. 896. 

7 Cheever v. Merrick, 2 N. H. 376. > Pratt v. Putnam, 18 Mass. 868. 

* Alton V. Gilmanton, 2 N. H. 520. ^ Hiiffhes v. Hollingsworth, 1 Marph. 146. 
u Pike V. Emerson, 5 N. H. 898 ; Talbott v. McGee, 4 Monr. 877 ; Union Bank of 
Georaetown v, Geary, 5 Pet. 99. 

^ Savory v. Chapman, 8 DowL 656 ; Jackson v, Bartlett, 8 Johns. 861 ; EeUogg «. 
Gilbert, 10 Johns. 220 ; 5 Pet. 118 ; GnUet v, Lewis, 8 Stew. 28 ; Carter v. Talcott» 
10 Verm. 471 ; Kirk v. Glover, 5 Stew, k Port 84 ; Tankendy v, Anderson, 4 Desaoa. 
45 ; Simonton r. Barrell, 21 Wend. 862. 
^ Corn's V. Rose, 1 Desaos. 469 ; Treasoiers v. McDowell, 1 Hill (3. C), 184. 

thority of an attorney at law undertaking to v. Roy, 69 N. Y. 96. So the attorney may 
represent a party to a suit, is prima fade release an attachment before jadgment, and 
presumed, and cannot be questioned for the generally do all acts, in or out of court, 
iirst time on appeal or error; but where an necessary or incidental to the management 
act purports to nave been done by a^nt or of the suit, which affect the remedy only, 
attorney, as the waiver of service of process, Moulton v. Bowker, 115 Mass. 86. But he 
and it does not appear that the agent or cannot waive other rights or bind hia client 
attorney is an attorney at law, there is no by the exercise of powers affecting such 
presumption of authority, and the want of rights. Bloomingtonv. Heiland, 67 lU. 278. 
authority may be assigned for error by the The power of an attorney extends to opening 
party thus represented. a default which he has taken (whether prop- 
(a) The attorney for a plaintiff has no erly or improperly), and vacating the judg- 
authority to direct a sheriff to make a re- ment entirely, even though his client has 
turn of an execution as satisfied, when no instructed him to the contrary. " A 
payment has in fact been made (Maude- client has no right to interfere with the 
ville V, Reynolds, 68 N. Y. 528); nor to attorney in the due and orderly conduct 
satisfy a judgment without payment (Beers of the suit, and certainlv cannot claim to 
V. Hendrickson, 45 N. Y. 665); nor to retain a judgment obtamed and an exe- 
oompromise or settle a suit (Barrett v, 8d cution issued by his attorney frandu- 
Avenue R. R CkK, 45 N, Y. 628). But lently." Read v, French, 28 N. Y. 298, 
he has authority to do everything which is and cases cited by court. Nightingale «. 
properly incidental to carrying on the suit Oregon C. R. R. Co., 2 Sawyer (C. Ct) 388. 
to judgment and execution. Thus where. The attorney has no authority, by virtue 
as in New York, provision is made for the merely of his retainer to prosecute or de- 
appointment of a receiver, as a supple- fend a suit, to release a claim of his client 
mental process in collecting a debt, the on a third person, for the purpose of making 
attorney has authorilrjr to take measures such person a competent witness for his 
for the appointment of a receiver. Ward client (Shores «. Caswell, 18 Met. (Mass.) 



PART IV.] ATTOBNETS. 181 

to release sureties;^ nor to enter a retraxit;^ nor to act for the 
legal representatives of his deceased client;' nor to release a 
witness.^ 

§ 142. Nature of the senrloe. In regard to the conduct of him- 
ne99 by the attorney for his client, he must show, that he has done 
all that he ought to have done.^ Though he is generally bound to 
follow the instructions of his client, yet he is not bound to do 
what is intended merely for delay, or is otherwise in violation of 
his duty to the court.^ Generally speaking, the contract of an 
attorney or solicitor, retained to conduct or defend a suit, is an en- 
tire and continuing contract to carry it on until its termination ; 
and if, without just cause, he quits his client before the termina- 
tion of the suit, he can recover nothing for his bill, ^(a) But he 
may refuse to go on without any advance of money, or without 
payment of his costs in arrear, upon giving reasonable notice to 
his client ; or, for just cause, and upon reasonable notice, he may 
abandon the suit ; and in either case he may recover his costs up 
to that time.' But he cannot insist upon the payment of moneys 
due on any other account.^ 

1 Givena v. Briscoe, 8 J. J. Manb. 682. > Lambert v. Sanford, 8 BUckf. 187. 

* Wood V. Hopkins, 2 Penningt 689 ; Campbell v. Kincaid, 8 Monr. 666. 

* Marshall v. l^agel, 1 Bailey, 808. 

* Allison V. Bajner, 7 B. & C. 441 ; B. c. 1 M. & R. 241 ; GiU v. Lougher, 1 
Cr. & J. 170 ; 8. a 1 Tyrw. 121 ; Godefroy p. Jay, 7 Bine. 418. 

* Johnson v, Alston, 1 Campb. 176 ; Pierce v. Blalce, 2 Salk. 616 ; Vincent «• 
Groome, 1 Cbitty, 182 ; Anon., 1 Wend. 108 ; Gilbert v. Williams, 8 Mass. 61. 

7 Harris v, Osbonm, 4 Tyrw. 446 ; 8. o. 2 Cr. & M. 629 ; Cresswell v. Byron, 
14 Ves. 271 ; Anon., 1 Sid. 81, pi. 8; 1 Tidd's Pr. 86 (9th ed.) ; Love v. Hall, 8 Yerg. 
408. 

8 Lawrence v. Potts, 6 C. & P. 428 ; Wadsworth v. Marshall, 2 C. & J. 666 ; Van- 
sandan v, Browne, 9 Bing. 402 ; Rowson v. Earle, Mood. & M. 688 ; Hoby v. Built, 8 
B. & Ad. 860 ; Gleason v. Clark, 9 Cowen, 67 ; Castro v. Bennett, 2 Johns. 296. 

* Heslop V. Metcali; 8 Sim. 622. 

413) ; nor to execute a bond to the probate Jennings, 8 Ohio St, 628; Donb v, Barnes, 

eoart upon an appeal (Clark v. Conrser, 1 Md. Ch. Decis. 127). On the general 

29 N. H. 170). An attorney's bond, in the snbject of the limitations of an attorney's 

naineof the principal, to indemnify a sheriff, powers, see Moulton v, Bowker, 116 Mass. 

thoogh made by parol authority, will bind 186. 

the principal as a simple contract. Ford (a) Whitehead v. Lord, 11 Eng. Law 
V, Williams, 18 N. Y. 677. An attorney & £(j. 687. The authority of an attorney 
cannot execute a replevin bond for his to commence and prosecute a suit is re- 
client; hut such bond is yoidable, and the yoked by the death of the constitutent, 
client may adont it (Karnignaffus Land and he has no authority, without a new re- 
Proprieton v. Wentworth, 86 Me. 889); tainer, to appear in the suit for the con- 
nor assign the judgment or execution stituent's executor or administrator. Glea- 
(Wilson V. Wadleigh, Id. 496); nor can son v. Dodd, 4 Met. (Mass.) 883 ; Palmer 
he release or postpone the judgment lien v. Reiffenstein, 1 Man. & G. 94 ; Shomaa 
on lands, created in a suit be^n by himself «. Allen, Id. 96, n. 
on a claim giren him to collect (Wilson v. 



182 LAW OF EYIDEKCE. [PABT lY. 

§ 143. Defences for fees. In the defence of an action for pro- 
fessional fees and services, besides denying and disproving the 
retainer, the defendant may show, that the plaintiff has not ex- 
ercised the reasonable diligence and skill which he was bound 
to employ ; and may depreciate the value of the services, upon a 
quantum meruit^ by any competent evidence. Whether negligenee 
can be set up as a defence to an action for an attorney's bill of 
fees, is a point which has been much questioned. If the services 
have proved entirely useless, it has fong been agreed, that this 
may be shown in bar of the whole action ; and, after some con- 
flict of opinions, the weight of authority seems in favor of admit- 
ting any competent evidence of negligence, ignorance, or want of 
skill, as a defence to an action for professional services, as well aB 
for any other work and labor.^ (a) 

§ 144. G(roM Ignorance. An attorney undertakes for the em- 
ployment of a degree of skill, ordinarily adequate and proportionate 
to the business he assumes. ^^ Spondet peritiam artis. Imperitia 
culpas adnumeratur." ^ Reasonable skill constitutes the measure 
of his engagement.^ (6) " Attorneys," said Lord Mansfield, " ought 
to be protected when they act to the best of their skill and knowl- 
edge; and I should be very sorry that it should be taken for 
granted, that an attorney is answerable for every error or mistake, 
and to be punished for it by being charged with the debt, which 
he was employed to recover for his cUent, from the person who 
stands indebted to him. A counsel may mistake, as well as an 
attorney. Yet no one will say that a counsel, who has been mis- 

^ See 8upra, Assampsit, § 186, and casee there cited ; Eannen v. McHoUon, 
Peake*B Cas. 69 ; Chapel v. Hicks, 2 C. & M. 214 ; 4 Tyrw. 48 ; Cutler «. Close, 5 
C. & P. 837; Consensv. Paddon, 5 Tyrw. 685; Hill v, Featherstonhaugh, 7 Bing. 669; 
Montriou v. Jefferys, 2 C. & P. 118 ; Huntley v. Buiwer, 6 Bing. N. C. Ill ; Grant 
V. Button, 14 Johns. 877 ; Brackett v. Norton, 4 Conn. 617. But see Templar v. 
McLachlan, 2 New Rep. 136 ; Runyan v, Nichols, 11 Johns. 647. 

« Story on Bailm. § 481. 

s Story on Bailm. §§ 482, 488 ; Reece v. Rigby, 4 B. & A. 202; Ireson v. Pearman, 
8 6. & C. 799 ; Hart v. Frame, 8 Jur. 647 : 6 CI. & Fin. 198 ; Lanphier v. Phipo^ 8 
C. k P. 476 ; Davies v. Jenkins, 11 M. & W. 746. 

(a) In Caverly v. McOwen, 128 Mass. gence or nnakilfulness of the plaintiff snch 

674, it was held that in such a case the services were of little or.no yalae. This 

burden is on the plaintiff to make out a eyidence is admissible under a general 

prvfnafcKie case by proyii^ that the work denial. 

was done, at the request oi the defendant, {b) Wilson «. Coffin, 2 Cush. fMaaa.) 

and also what the work is reasonably 816; Holmes v. Peck, 1 R. I. 242; Parker 

worth. On this latter part of the case it v. Rolls, 28 £ng. Law & £q. 424; Cox v. 

is competent for the defendant to intro- Sullivan, 7 Oa. 144. 
duoe evidence that by reason of the negli- 



PABT nr.] ATTOBNETS. 188 

taken, shall be charged with the debt. The counsel, indeed, is 
honorary in his advice, and does not demand a fee ; ^ the attorney 
fnay demand a compensation. But neither of them ought to be 
charged with the debt for a mistake." ^ In a more recent case, 
fhe law on this subject was thus stated by Lord Brougham : ^^ It 
is of the very essence of this kind of action that it depends, not 
upon the party having been advised by a solicitor or attorney in a 
way in which the result of the proceeding may induce the party to 
think he was not advised properly, and may, in fact, prove the 
advice to have been erroneous ; — not upon his having received, if 
I may so express it in common parlance, bad law, from the solici- 
tor ; nor upon the solicitor or attorney having taken upon himself to 
advise him, and, having given erroneous advice, advice which the 
result proved to be wrong, and in consequence of which error the 
parties suing under that mistake were deprived and disappointed 
of receiving a benefit. But it is of the very essence of this action 
that there should be a negligence of a crass description, which we 
shall call crassa negligentia^ that there should be gross ignorance, 
that the man who has undertaken to perform the duty of attorney, 
or of a surgeon, or an apothecary (as the case may be), should 
have undertaken to discharge a duty professionally, for which he 
was very ill qualified, or, if not ill qualified to discharge it, which 
he had so negligently discharged as to. damnify his employer, or 
deprive him of the benefit which he had a right to expect from the 
service. That is the very ground Lord Mansfield has laid down in 
that case,^ to which my noble and learned friend on the woolsack 
has referred a little while ago, and which is also referred to in the 
printed papers. It was still more expressly laid down by Lord 
Ellenborough in the case of Baikie v. Chandless,^ because there 
Lord Ellenborough uses the expression, ^ an attorney is only liable 
for crasea negligentia^ therefore, the record must bring before the 
court a case of that kind, either by stating such facts as no man 
who reads it will not at once perceive, although without its being 
alleged in terms, to be erasea negligentia^ — something so clear that 

1 In the United States, the offices of attorney and oonnsellor are so frequently 
exercised by the same penon that they have become nearly blended into one ; and ac- 
tions for compensation for sernces performed in either capacity are freely sostained in 
most if not aU the States of the Union. 

> Pitt 9. Yalden, 4 Burr. 2061. And see Compton v, Chandless, cited S Campb. 19; 
Kemp V. Bnrt» 4 B. & Ad. 424; Shacock v. Passman, 7 C. & P. 289; Nixon «. Phelps, 
S9 Yt. 198. 

* Pitt V, Talden, 4 Burr. 20C0. « 8 Campb. 17. 



134 LAW OF EYIDENCE. [PABT IT. 

no man can donbt of it ; or, if that should not be the case, then 
he must use the very averment that it ^as era$sa negligentiaJ^ ^ 

§ 145. Inattention. More particularly, an attorney is held lia- 
ble for the consequence of ignorance or non-observance of the 
rules of practice of the court ; for the want of proper care in the 
preparation of a cause for trial, or of attendance thereon, and 
the use of due means for procuring the attendance of the wit- 
nesses ; and for the mismanagement of so much of the cause as 
is usually and ordinarily allotted to his department of the pro- 
fession. But he is not answerable for error in judgment upon 
points of new occurrence, or of nice and doubtful construction, 
or of a kind usually entrusted to men in another or higher branch 
in the profession.^ If he undertakes the collection of a debt, he 

I Purres v. Landell, 12 Clark k Fin. 91, 98, 99. This was an action in Scotland, 
against a writer to the signet, for advising and conducting an improper and irregular 
mode of procedure against a debtor, which proved fruitless and expensive to the 
plaintiff, and resulted in large damages recovered against him in an action for false im- 
prisonment. The action ultimately failed, for want of any allegation and proof of 
gross ignorance or gross negli^nce on the part of the attorney or law agent Lord 
Campbell, in delivering his opmion, in which the other lords concurred, exprtsssed him- 
self as follows : " In an action such as this, by the client against the professional 
adviser, to recover damages arising from this misconduct of the professional adviser, I 
apprehend there is no distinction whatever between the law of Scotland and the law 
ox England. The law must be the same in all coui\|Ties where law has been considered 
as a science. The professional adviser has never been supposed to guarantee the sound- 
ness of his advice. 1 am sure 1 should have been sorry, when I had the honor of 
practising at the bar of England, if barristers had been liable to such a responsibility. 
Thoagh 1 was tolerably cautious in giving opinions, I have no doubt that I have re- 
peatedly given erroneous opinions; and I think it was Mr. Justice Heath who said that 
it was a very difficult thing for a gentleman at the bar to be called upon to give his 
opinion, because it was calling upon him to conjecture what twelve other persons would 
say upon some point that had never before been determined. Well, then, this may 
happen in all grades of the profession of the law. Against the barrister in England 
and the advocate in Scotland luckily no action can be maintained. But against the 
attorney, the professional adviser, or the procurator, an action may be maintained. 
But it is only if he has been guilty of gross negligence, because it would be monstrous 
to say that he is responsible for even falling into what must be considered a mistake. 
You can only expect from him that he will be honest and diligent ; and, if there ia no 
fault to be found either with his integrity or diligence, that is all for which he is 
answerable. It would be utterly impossible that you could ever have a class of men 
who would give a guaranty, binding themselves, in giving legal advice and conducting 
suits at law, to be always in the right. 

"Then, my lords, as crasaa negligerUia is certainly the gist of an action of this 
sort) the question is whether in this summons that negligence must not either be 
averred or shown f This is not anv technical point in which the law of Scotland 
differs from the law of England. I should be very sony to see applied, and I hope this 
House would be very cautions in applying, technical rules which prevail in England to 
proceedings in Scotland. But I apprehend that, in this respect, the laws of the two 
countries do not differ, and that the summons ought to state, and must state, what is 
necessary to maintain the action ; this summons must either allege negligence, or must 
show facts which inevitably prove that this person has been guilty of gross nec^igence.'* 
Id. pp. 102, 108 ; Marsh v. Whitmore, 21 Wall. (U. S.) 178. 

' Godefroy v. Dalton, 6 Bing. 467, per Tindal, C. J. And see Lynch «. Commoa- 
wealth, 16 S. & R. 368. 



PABT IT.] ATTOfiNBTB. 186 

is bound to sue out all process necessary to that object. Thus, 
he is bound to sue out the proper process against bail;^ and 
against the officer, for taking insufficient bail, or for not de- 
livering over the *bail-bond ; ^ and to deliver an execution to the 
officer, in proper season after judgment, to perfect and preserve 
the lien created by the attachment of property on mesne process ; ^ 
but not to attend in person to the levy of the execution.^ If he 
doubts the expediency of furtlier proceeding, he should give notice 
to his client, and request specific instructions ; ^ without which, 
it seems, he would be justified in not prosecuting, in cases where 
he is influenced by a prudent regard to the interest of his client.^ 

§ 146. "When motion lies. Damages. For every violation of his 
duty, an action l%e9 immediately against the attorney, even though 
merely nominal damages are sustained at the time; for it is a 
breach of his contract ; but actual damaget may be recovered for 
the direct consequences of the injury, even up to the time of the 
verdict.^ The damages do not necessarily extend to the nominal 
amount of the debt lost by the attorney's negligence, but only 
to the loss actually sustained.^ 

§ 147. Attorney as an officer of the court An attorney, being 
an officer of the court in which he is admitted to practice, is held 
amenable to its nummary Jurisdictiony for every act of official 
misconduct.^ The matter is shown to the court by petition or 
motion, ordinarily supported by affidavit; and the order of the 
court, after hearing, is enforced either by attachment, or by 
striking his name from the roll, (a) If he neglects or refuses to 

1 Dearborn «. Detrborn, 15 Mass. 316 ; Crooker v. Hatchinson, 1 Vt. 73. 

* Crooker v, Hutchinson, 1 Vt. 73 ; Simmons v, Bradford, 16 Mass. 82. 

* Phillips V. Bridge, 11 Mass. 246. And see Pitt v. Yalden, 4 Burr. 2060; RusseU 
V. Palmer, 2 Wils. 325. 

^ Williams «. Reed, 3 Mason, 405. * Dearborn v. Dearborn, 15 Mass. 316. 

* Crooker v. Hutchinson, 2 Chipm. 117. 

V Wilooz V. Plnmmer, 4,Peter8, 172. And see Maneetti v. Williams, 1 B. & Ad. 415. 
^ Dcaurbom v. Dearborn, 15 Mass. 816 ; Crooker v. Hutchinson, 2 ChipoL 117 ; 
Himtington v. RumnUl, 3 Day, 890. And see ir^a, § 599. 

* In several of the American States, persons of full age, and qualified as the statutes 
of those States prescribe, are entitled to admission to practise as attorneys in any of the 
eoorts, and it is made the duty of the judges to admit them accordingly. Whether 
penons of this class are amenable to the summary jurisdiction of the courts has been 
aoubted. If they are not, this fact shows the ffreat impolicy of popular interference 
wiUi the forms of administerinff justice, since in uiis case the legislatures will haye un- 
consciously depriyed the people of the benefit of one of the strongest securities for 
professional good oondnot. 

(a) In the matter of Eldridge, 82 N. T. affidavits are in the nature of pleadings 
161, the court held that the motion and only, not evidence, and that when tiiey are 



188 LAW OP EYIDBNGB. [PART IT. 

in the convejance of title, (a) And if the client has thereby been 
evicted from the land, he should prove the eviction by a copy of 
the judgment, and by the writ of possession duly executed ; ^ or, 
if he has peaceably submitted to an entry and ouster without suit, 
he must show that it was in submission to an elder and better 
title* 

1 1 Steph. N. P. 484. And see Gore v. Brazier, 8 Mass. 548. 

* Hamilton v. Cntts, 4 Maas. 849 ; Sprague v. Baker, 17 Mass. 686, 590. 

(a) It has been held that if counsel the client's consent, buy and hold, other- 
be retained to defend a particular title to wise than in trust, any adverse title or in- 
real estate, he can never thereafter, unless terest touching the thiu^ to which his 
his ^client consent, buy the opposing title employment relates. Smith v. Brother- 
without holdiug it in trust for those tiien line, 62 Pa. St 461; Davis v. Smith, 43 
having the title he was employed to sus- Yt 269; Case «. Carroll, 85 N. Y. 385; 
tain. Henry v, Raiman, 25 Pa. St. 854. Lewis v. HiUnuui, 8 H. of L. Gas. 607. 
And in no case can an attorney, without 



PABT lY.] BABTABBT. 189 



BASTARDY. 

§ 150. Bastardy defined. By the common law, children bom 
out of lawful wedlock are bastards. By the Roman law, if the 
parents afterwards intermarried, this rendered the issue legiti- 
mate, (a) The rule of the common law prevails in the United 
States, except where it has been altered bj statutes; which in 

(a) On the question of legitimacy, there to such property as the heir of A? It was 
is an important point regarding the con- held that he was not so entitled. Tyndal, 
flict of laws. Is a child born out of wed- C, J., giving his opinion in the House of 
lock, who is legitimated by his parents Lords, says, "We hold it to be a rule or 
havinff married subsequently to his birth maxim of the law of England, with respect 
(which is the law of legitimacy in some to the descent of land in England from 
states and countries), legitimate to all in- father to son, that the son must be bom 
tents and nurposes, in a state where such after actual marriage between his father 
is not the law? It may be premised that and mother. This is a rule juris posUioi, 
legitimacy is a status, and the general rule as are all the laws which regulate succes- 
is that a status acquired by persons in one sion to real estate, this particular rule 
jurisdiction attaches to and travels with having been framed for the direct purpose 
them wherever they afterwards reside, of excluding, in the descent of land in 
Wheaton, International Law, § 84, Dana's England, the application of the rule of the 
ed ; Law. ed. ch. II. § 6, pp. 171, 177. civil and canon law, by which the sub- 
But it is said that, as to real estate, the sequent marriage between the father and 
status of the claimant must be tested by mother was held to make the son bom be- 
the law of the state where the land is fore marriage legitimate, and that this rule 
situated. Wheaton, International Law, of descent, being a rule of positive law, 
Dana*8 ed. §§ 85-98 ; Ijaw. ed. ch. II. § 3, annexed to the land itself, cannot be broken 

g. 164 ; Wharton, Conflict of Laws, s. 243. in upon or disturbed by the law of the 

tory, however, in his Conflict of Laws, country where the claimant was bom, and 

ch. 4, considers the status of the original which may be allowed to govern his per- 

jurisdiction to govern, even as regards real sonal status as to legitimacy, upon the 

estate. The leading case on this point is supposed ground of comity of nations." 

Birtwhistle v, YardSl, 7 01. & Fin. 895, in The Court thus decides the question on 

which the facts were these. A went from the ground that in England something 

England to Scotland, and resided and was more than mere legitimacy is necessary, 

domiciled there, and so continued for many in order to entitle one to lands. It is 

years, till the time of his death. During Ic^timacy of the sort that arises from 

this residence in Scotland A cohabited witn birth after the lawful marriage of the 

M, an unmarried woman, for some years, parents. It is believed that the rale as 

and had by her a son, B, who was bom in given in the remarks of Tyndal, C. J., is 

Scotland. Several years after the birth of the law in the United States. The princi- 

B, who was the only son, A and M were pie of Birtwhistle v. Yardill was discussed 

married in Scotland, according to the laws and approved in Smith v. Derr's Adm'rs, 

of that country. By the laws of Scotland, 34 Pa. St. 126. In accord are also Lingen 

if the marriage of the mother of a child, v, Lingen, 45 Ala. 410; Miller v. Miller, 

with the father of such child, takes place in 18 Hun (N. Y.), 507. Except as to the 

Scotland, such child bom in Scotland be- inheritance of real estate, legitimacy is 

fore the marriage is equally legitimate with decided by the law of the place of birth 

children bom after the marriage for the and domicile. Shaw v, Gould, L. R. 8 

purpose of takinff land and for every other H. of L. 55. Of. Don's Estate, 4 Drewry, 

purpose. A died seised of i«al estate in 197; Be Wright, 2 K. & J. 595. 
England. The question was, Is B entitled 



140 LAW OF EVIDENCE. [PABT lY. 

several of the States have been enacted, introducing, under various 
modifications not necessary here to be mentioned, the rule of the 
Roman law.^(a) The modem doctrine of the common law on 
this subject is this : that where a child is bom during lawful wed- 
lock, the husband not being separated from the wife by a sentence 
of divorce a mensa et thoroj it is presumed that thej had sexual 
intercourse, and that the child is legitimate ; but this presumption 
may be rebutted by any competent evidence tending to satisfy a 
jury, that such intercourse did not take place at any time, when, 
by the laws of nature, the husband could have been father of the 
child.^ If the husband and wife have had opportunity for inter* 

1 In New Hampshirei Connecticat, Rhode Island, New York, New Jersey, Pennsyl- 
Tonia, Delaware, South Carolina, Tennessee, and Arkansas, the role of the common 
law is nndeistood to prevail. A subsequent maniage of the parents renders their 
prior issue legitimate in Kentucky, Alabama, Illinois, Louisiana, Michigan, and Mis- 
souri. Beside the marriage, a subsequent acknowledgment of the child by the father 
18 requisite in Indiana, Ohio, Vermont, Virginia, Maine, and Massachusetts. In Maine, 
other issue must have been bom after the marriage. In Massachusetts, the child can 
inherit only from' its parents. In North Carolina, a decree of leatimacy in favor of 
ante-nuptial issue is ootained from the courts, on application of the father, after the 
marriage. See 8 Cruise's Dig. tit. 29, c. 2, § 8, note (Oreenleaf *s ed. ), where the laws 
of the several States on this subject are more particularly stated. 

' See the opinions of the judges in the Banbury Peerage Case, in Nicholas on Adul- 
terine Bastaixlv, pp. 183, 184 ; and of I^. Redesdale and Ld. Ellenborough, Id. pp. 
458, 488 ; Morris v. Davies, 3 C. & P. 427 ; 5 C. & Fin. 163 ; Rex v. Lule, 8 East, 
193 ; Goodright v. Saul, 4 T. R. 356 ; Peudrel v. Pendrel, 2 Stra. 924 ; Stegall v. 
St^aU, 2 Brock. 256 ; Head o. Head, 1 Tmn. k Russ. 188 ; 1 Sim. k Stu. 150 ; Cope 
V. Cope, 5 C. & P. 604 ; 1 M. & Rob. 269. The presumption mentioned in the text is 
not to be rebutted by ciroumstances which only create doubt and suspicion ; but it 
may be whoUy removed by showing that the husband was, — 1st, impotent ; 2dly, 
constantly absent, so as to have no intercourse or communication of any kind with 
the mother ; 3dly, absent during the entire period iu which the child must, in the 
course of nature, have been begotten ; 4thly, present, but under such ciroumstances 
as to afford clear and satisfactory proof that there was no sexual intercourse. Such 
evidence as this puts an end to the question, and establishes the illegitimacy of the 
child of a married woman. 

It is, however, very difficult to conclude against the legitimacy in cases where 
there is no impotency, and where some society or communication is continued between 
the husband and wife, during the time in (question, so as to have afforded opportunities 
for sexual interoourse. If such opportunities have occurred, no evidence can be ad- 
mitted to show that any man, other than the husband, may have been tiie father of the 
wife's child, whatever probabilities may exist that it was the child of another man. 
Throughout the investigation, the presumption in favor of legitimacy is to have its 
weight and influence, and the evidence against it ought to be strong, distinct, satisfac- 
tory, and conclusive. Hargrave v, Hai^grave, 9 Beav. 552. This case is valuable for 
the observations it contains on the nature and extent of the proof necessary to estab- 
lish a case of adulterine bastardy, and the kind of evidence which is admissible in 
such cases. 

(a) A child bom in we<llock, though State «• Herman, 18 Ired. (N. G.) 502. 

within a month or a day after marriage, is See Gaines o. Hennen, 24 How. (U. 8.) 

presumed to be legitimate; and when the 553, for an examination of the Louisianm 

mother was visibly pregnant at the time cases, the Spanish law, and the Code Na^ 

of the marriage, it is presumed that the poleon upon this tnbject. 
child 18 the ofispring of the husband. 



PART IV.] BA8TABDT. 141 

course, this merely strengthens the presumption of legitimacy ; 
but it may still be rebutted by opposing proof .^ And if they have 
cohabited together, yet this does not exclude evidence, that the 
husband was physically incapable of being the father.^ But if the 
child was begotten during a separation of the husband and wife a 
mensa et thoro by a decree, it will be presumed illegitimate; it 
being presumed, until the contrary is shown, that the sentence of 
separation was obeyed. But no such presumption is made, upon 
a voluntary separation.^ 

§ 151. Htuband and wife Incompetent to prove. The hufband 
and wife are alike incompetent witnesses to prove the fact of non- 
access while they lived together. But they are competent to testify, 
in cases between third parties, as to the time of their own mar- 
riage, the time of the child's birth, the fact of access, and any 
other independent facts affecting the question of legitimacy.^ (a) 
The husband's declarations, however, that the child is not his, are 
not sufficient to establish its illegitimacy, though it were bom only 
three months after marriage, and thereupon he and his wife had 
separated, by mutual consent.^ (6) 

§ 152. Period of gestation. In regard to the period of gestation^ 
no precise time is referred to, as a rule of law, though the term of 
two hundred and eighty days, or forty weeks, being nine calendar 

1 Ibid. See also €k>iD]nonwealth v. Striker, 1 Browne, App. p. xlvii. ; 8 Hawks, 
eiS ; 1 Aahmead, 269. 

> Per Ld. £]lenboroiigh in Rex «. Lnffe, 8 East, 205, 206 ; Foxcroff s Case, Id. 
200, n. 205. This case, However, is more folly stated and explained in Nicholas on 
Adulterine Bastardy, pp. 557-564. In case of access of the hnsband, nothing short 
of physical impotency on his part will serve to convict a third person of paternity of 
the oAspring. Commonwealth v. Shepherd, 6 Binn. 283. (c) 

s St. OeoTge*s v. St. Maigaret's Parish, 1 Salk. 128 ; Bull. K. P. 112. 

« Aide, vol L §§ 28, 844 ; Standen v, Standen, Peake's Cas. 82 ; Rex v. Bnunley, 
6 T. R. 880 ; Goodright v. Moss, Cowp. 591. 

* Bowles 9. Bingham, 2 Munf. 442 ; s. c. 8 Monf. 599. 

(a) Corson v. Corson, 44 N. H. 587 ; daughter could get nothing by law, is ad- 
Page t. Denntson, 1 Grant's Cas. (Pa.) 877 ; missible as evidence tending to prove her 
Parker v. Way, 15 N. H. 49. illegitimacy, it being for the juiy to deter- 

(6) Oenenl reputation in the family is mine the sense in which he used the ex- 

ooroj^etftnt evidence in a case involving pression. Yiall v. Smith, 6 R. I. 417. 

le^timacy; but common report of the Though the declarations of the parents 

neighborhood is not competent. Wright are inadmissible to bastardize issue bom 

V. Hicks, 15 Ga. 160. lliat a child was during the wedlock, they are admissible to 

called and treated by a man and his family show that the parents were not married at 

as his daughter is presumptive proof of the time of the birth. Craufurd v. Black- 

her legitimacy, although the town registry bum, 17 Md. 49. 

i^ the father s marriage, as compared witn (e) Or to show that the child is illegiti<* 

the time of the daughter's birth, would mate. Sullivan v. Kelly, 8 Allen (Mass.), 

contradict this. A declaration by the - 148 ; Phillips v, Allen, 2 Id. 458 ; Hem* 

lather that, unless he made his will, the menway v. Towner, 1 Id. 209. 



142 LAW OP EVIDENCE. [PABT IV. 

months and one week, is recognized as the usual period. But the 
birth of a child being liable to be accelerated or delayed by cir- 
cumstances, the question is purely a matter of fact, to be decided 
upon all the evidence, both physical and moral, in the particular 
case.^ 

§ 158. Toid nuuTiage. Bastardy may also be proved by show- 
ing, that the party was the issue of a marriage absolutely void ; as, 
if the husband or wife were already married to another person, 
who was alive at the time of the second marriage. So, by show- 
ing that the child was begotten after a decree of divorce a vinculo 
fnatrimonii. But if the marriage were only voidable, and not ipso 
facto void, the issue are deemed legitimate, imless the marriage 
was avoided by the parties themselves, in the lifetime of both.^ 
After the lapse of thirty years, and after the death of all the par- 
ties, legitimacy will be presumed on slight proof.^ (a) 

^ See 1 Beck's Med. Jarisp. c. 9 ; Hargrave & Butler's note (2) to Co. Lit. 128, '(; 
4 Law Mag. 25-49 ; Nicholas on Adaltezine Bastardy, pp. 212, 218 ; The Banbary 
Peerage Case, Id. 291-554 ; The Gaidner Peerage Case, Id. 209 ; Phillips v. Allen, 8 
Allen, 458. 

' Co. Lit. 88 a ; I Bl. Comm. 424. ' Johnson v, Johnson, I Desans. 595. 

(a) In Town of Norfolk v, Gaylord, 28 blance in the head and features between 
Conn. 809, which was a bastardy suit the child and defendant. Proof of sexual 
brought by a town, the defendant naving intercourse between the parties, which took 
admitted sundry acts of illicit intercourse place three years previous to the time when, 
with the mother of the child, prior to the the child was begotten, has been held ad- 
time when the child must have been be- missible as bearing upon the probability of 
gotten, and denied any subsequent acts, it the alleged sexual intercourse which is the 
was held that the jury might properly subject of the prosecution. Thayer v. Davia, 
consider them in connection with the 88 Vt. 168. When an action is brought 
question of the paternity of the child, as under a statute to prove the paternity of a 
snowing a habit of criminal intercourse bastard, and to compel the father to con* 
with the mother on the part of the de- tribute to its support, proof by a prepon- 
fendaut, and facilities for such intercourse, derance of evidence is sufficient to make 
and that it was not the dulr of the court, out the case. Knowles v, Scribner, 57 
upon the request of the defendant, to ex- Me. 495, overruling Thayer v. Boyle, 
elude such facts from their consideration. 80 Me. 475; People v. Christmas, 66 UL 
On an issue to try the paternity of a has- 162. Sc« also /wk, § 426, n. And depo- 
tard child, it was held that the defendant sitions may be used as in other civil cases, 
has a right to show that the child does not State v. Hickerson, 72 N. C. 421. The 
resemble him. State v. Bowles, 7 Jones mother of the child may testify to her 
(K. C), Law, 579. But the complainant own declarations as to the paternity of the 
was not allowed, in Eddy v. Gray, 4 Allen child in her travaiL Reed 9. Haskms, 116 
(Mass.), 485, to prove bv witnesses having Mass. 198. 
no especial skill in such matters a xesem- 



PAST IT.] BILLS OF BZCHANOE AND PB0HI8S0BT NOTES. 143 



BILLS OF EXCHANGE AND PROMISSORY NOTES. 

§ 158 a. What laws oonsidered. In treating this subject, the 
rules of the common law-merchant, recognized in the courts of 
England and the United States of America, will alone be stated. 
But it is to be remembered, that as between the holder of a bill of 
exchange and the drawer or indorser, the lezi loci contractus of the 
drawer and of the indorser, and not of the acceptor, governs the 
liabilities of the drawer and of the indorser, respectively. Thus, 
A drew a bill in favor of B (both being residents of Demerara), 
upon C, resident in Scotland, who accepted it, making it payable 
in London ; and B indorsed it to D, who afterwards became bank- 
rupt. When C's acceptance became due, he held a bill of exchange, 
accepted by D. An action being brought in Demerara, by D's 
assignees, against A and B upon the bill, it was held, that the 
Roman-Dutch law, prevalent in Demerara, and not the law of 
England, must govern the case ; and that, according to that law, 
the defendants were at liberty to plead D's bill as a compensation, 
pro tantOj of the bill in suit.^ (a) 

§ 154. daasifioation of Uabilitiea. As the acceptor of a bill of 
exchange and the maker of a promissory note stand in the same 
relation to the holder, the note being of the nature of a bill drawn 
by a man on himself, and accepted at the time of drawing, the 
rules of evidence are, in both cases, the same. The liabilities of 
the parties to the instruments are of three general classes: — 

1 Allen V, Kemble, 13 Jar. 287, Priy. €k>un. 

(a) So when an accommodation note his direction, was gOTerned by the laws of 

was dated at and made payable in New New York and not those of Germany, 

Jersey, and was afterwards indorsed in though the original contract for a loan of 

New York, for the accommodation of the money in parsuance of which the note 

maker, and for the purpose of procuring was ^ven was made in Germany. Heid- 

it to be disoonnted in New York, where it enheimer v. Mayer, 42 N. Y. Snper. Ot. 

was discounted at a usurious rate of in- 506. 

terest, it was held that, as against the And to this effect is Merchants' Bank 

indoner, the law of New York was the v, Griswold, 72 N. Y. 472. The locus 

law of the contract. Weil v, Lange, 6 eontraetus is not the place where the note 

Daly (N. Y. ), 649. or bill is made, drawn, or dated, but the 

And so a note dated and payable at place where it is delivered by the drawer 

Hew York and delivered in New York by or maker. Orerton v, Bolton, 9 Ueiak. 

mailing it to the pUdntiif in Germany 1^ (Tenn.) 762. 



144 LAW OP EVIDENCE. [PABT IV. 

(1.) Primary and absolute liability ; such as that of the acceptor 
of a bill or maker of a note, to the payee, indorsee, and bearer ; 
(2.) Secondary and conditional liability; such as that of the 
drawer of a bill, to the payee or indorsee, and of the indorser to 
the indorsee ; (8.) Collateral and contingent liability ; such as 
that of the acceptor to the drawer or indorser, and of the drawer 
to the acceptor. And, accordingly, the action upon a bill or note 
will be brought, either, (1) by the payee or bearer against the 
acceptor or maker ; or (2) by the indorsee against the acceptor 
or maker ; or (3) by the payee against the drawer of a bill ; or 
(4) by the indorsee against the drawer of a bill, or against the 
indorser of a bill or note ; or (6) by the drawer or indorser of 
a bill against the acceptor; or (6) by the acceptor against the 
drawer. 

§ 155. Points to be proved. In these forms of remedy, the 
material allegations on the part of the plaintiff involve four prin- 
cipal points, which, if not judicially admitted, he must prove: 
namely, firsts the existence of the instrument, as described in the 
declaration ; aeoandlt/j how the defendant became party to it, and 
his subsequent contract ; thirdly^ the mode by wbich the plaintiff 
derived his interest in and right of action upon the instrument ; 
and, fourthly^ the breach of the contract by the defendant. The 
plaintiff will not be holden to prove a consideratiofij unless in 
special cases, where his own title to the bill is impeached, as 
will be shown hereafter. In treating this subject, therefore, it 
is proposed to consider these four principal points, in their 
order.^ 

1 In this order, that of Mr. Chitty has been followed, whose treatise on Bills, c. 5 
(9th ed.), and the treatise of Mr. Jastice Story on Bills, hare been freely resorted to 
throughout this Title. 

The usual declarations on bills and notes are in the following forms, according to 
the present practice in England, and in most of the United States, where the common- 
law remedies are pursued. 

(1.) Payee t. Aeeeptor^ of a foreign biU. "For that one £. F., at , in the 

kingdom [or, SUUe] of , on , made his bill of exchange in writing directed to 

the said {defendant) at , and thereby required the said {drfendant) m days 

[or, monlhSf &c.] after sight [or, date] of that his. first of exchange, ihe second and 
third of the same tenor and date not paid, to pay to the plaintiff ^-^ [here insert the 
sum as expressed in the bill ; and if the currenq/ mentioned in the bill is one which has 
not been recognized, and its value not established by statute, the value in the nationeU 

currency should be averred] ; and the said {defeiidant) on accepted the said bUl, 

and promised the plaintiff to pay the same, according to the tenor and effect thereof 
and of his said acceptance. Yet," &c. 

In this case the proposition of fact, to be maintained by the plaintiff, invoWes, first, 
the existence of such a bill as he describes, and, secondly, that the defendant accepted 
it as all^d. 

(2.) Payee y. Maker, of a negotiable promissory note. " For that the said {defsnid' 



PABT lY.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 145 

§ 156. EziBtenoe of the oontraot. And, FIRST, as to the existence 
of the instruments as described in the declaration. Ordinarily the 

ofiO* on — , by his promissory note in writing, for valne received, promised the 

plaintiff to pay him or nis order dollars in days [or, monUu, &c.] after 

the date thereof. Yet," kc 

Here the plaintiff's case is made ont by the production and proof of the note. 

(3.) Indoraee y. Acceptor, of a foreign bill. "For that one E. F., at , in the 

kingdom, &c., on , made his bill of exchan^ in writing, and direct«*d the same to 

the said (defendant) at , and thereby required the said defendant in days 

[or, monthSf &c.] after sight [or, date] of that his first of exchange, the second and 

third of the said tenor and date not paid, to pay to one G. H. or his order [as in 

No, 1] ; and the said (defendant) then accepted the said bill ; and the said 6. H. then 
indorsied the same to the plaintiff [or, indorsed the same one to J. E., and the said 
J. K. then indorsed the same to the plaintiff] : of all which the said (defendant) then 
had notice, and in consideration thereof then promised the plaintiff to pay him the 
amount of said bill, according to the tenor and effect thereof and of his said accept- 
ance. Yet," &c. 

In this action the plaintiff's case is made ont by proof of the acceptance, and of 
the indorsement, the acceptance being an admission that the bill was duly drawn. 

(4.) Indor$ee y. Maker, of a promissory note. ' '* For that the said (defendant), on 

f by his promissory note in writing, for value received, promised one £. F. to pay 

him or his order in days [or, months, &c.J from said date; and the said £. 

F. then indorsed the said note to the plaintiff; of which the said (defendant) then had 
notice, and in consideration thereof theu promised the plaintiff to pay him the amount 
of said note according to the tenor thereof. Yet," &c. 

Here the plaintiff's case is made out by proof of the maker^s signature, and of the 
indorsement 

(5.) Bearer v. Maker, of a promissory note. "For that the said (defendant), on 

, by his promissory note in writing, for value received, promised one E. F. to pay 

him or the bearer of said note in days [or, months, &c.] from said date; 

and the said E. F. then assigned and delivered the said note to th« plaintiff, who then 
became and is the lawful owner and bearer thereof; of which the said (defendant) then 
had notice, and in consideration thereof then promised the plaintiff to pay him the 
amount of said note, according to the tenor thereof. Yet," kc 

This declaration is proved by production of note, and proof of its execution by the 
defendant. 

(6.) Payee v. Drawer, of a foreign bill, on non-acceptance. "For that the said 

(drfendant), at on , made nis bill of exchange in writing, and directed the 

same to one K F., at , in the kingdom of , and thereby required the said E. 

F. in dajrs [or, months, &c.] after sight [or, date] of that his first of exchange, 

the second and thiid of the same tenor and date not paid, to pay to the plaintiff 

Jot in No, 1]; and the said bill, on , at said , was presented to tne said £. F. 
or acceptance, and he refused to accept the same: of all which the said (defendant) on 

had due notice, and thereby became liable to pay to the plaintiff the amount of 

said bill on demand, and in consideration thereof promised the plaintiff to pay liim 
the same accordingly. Yet," &c. 

Here the plaintiff must prove, if traversed, the drawing of the bill, its presentment 
to the drawee for acceptance, and his refusal to accept it, and notice Uiereof to the de- 
fendant; together with tiie protest, it being a foreign bilL See Salomons v, Staveley, 
8 Dong. 298. 

(7.) Indorsu y. Drawer, of a foreign bill, on non-acceptance. "For that the said 

(defe¥^dan£) at , on , made his bill of exchange in writing, and directed the 

same to one £. F., at , in the kingdom of , and thereby required the said £. 

F. in days [or, months, &c.] after sight [or, date] of that his first of exchange, 

the second and third of the same tenor and date not paid, to pay to one G. H. or his 

order Uu in No. 11; and the said G. H. then indorsed the same to \as in 

No, 8]; ana the said bul, on , at said, was presented to the said £. F. for 

acceptance, and he refused to accent the same; of all which the said {defendant), on 

, had doe notice, and thereby became liable to pay to the plaintiff the amount of 

said biU on demand, and in consideration thereof promised the plaintiff to pay him 
the same accordingly. Yet," &c 

VOL. II. 10 



146 LAW OF EVIDENCE. [PAKT IV. 

bill must be produced at the trial, in all the parts or sets in which 
it was drawn.^ If the bill or other negotiable securittf be losty there 

A trarene of this declaration puts the plaintiff to prove the drawing of the biU, — 
the payee's iudorsement, and all the subsequent indorsements declared upon, — pre- 
sentment to the drawee, — his default, — and nojtice to the defendant of the dishonor 
of the bill; together with the protest, as before. 

(8.) Indorsee v. Indareer, being payee of a foreign bill, on non-acceptance. " For 

that one E. F. at , on , made his bill of exchange, and directed the same to 

one G. H., at in the kingdom of , and thereby required the said G. H., in 

days [or, months] after sight [or, date] of that his first of exchange, the second 

and third of the same tenor and date not paid, to pay to the said (de/endani) or his 

order {here describe the bill as in No. IJ; and the said (defendant) then indorsed 

the same [as in No. 3] ; and the said bill, on , at said , was presented \c the 

said G. H. for acceptance, and he refused to accept the same, of all which the said {de- 
fendant), on — , had due notice, and thereby became liable to pay to the plaintiff the 
amount of said bill on demand, and in consideration thereof promised the plaintiff to 
pay him the same accordingly. Yet," &c. 

The proof of this declaration is the same as in the preceding case. 

(9.) Dratoer v. Acceptor, "For that the plaintiff, on , made his bill of ex- 
change in writing, and directed the same to said {defendant), and thereby required 

him, in days [or, months, &c.] after sight [or, date] of that his first of exchange, 

the second and third of the said tenor and date not paid, to pay to one E. F. or nia 
order [as in No. 1], and delivered the same to the said E. F.; and the said {de- 
fendant) then accepted the same, and promised the plaintiff to pay the same, accord- 
ing to the tenor and effect thereof, and of his said acceptance : yet he did not pay the 
amount thereof, although the said bill was presented to him on the day when it be- 
came due, and thereupon the same was then and there returned to the plaintiff, of 
which the said {defendant) had notice." 

In this case, the plaintiff may be required to prove the acceptance of the bill by 
the defendant, — ite presentment for payment, ana his refusal, — payment of the bill 
by the plaintiff, — and that the defendant had effecto of the plaintiff in his hands; 
of whicn, however, the acceptance of the bill is prima facie evidence. It is not neces- 
sary for the plaintiff to make out a title to the bill under the payee. Kingman v. 
Hotaling, 25 Wend. 423. 

(10.) Indorser v. Acceptor. In this case, the plaintiff may declare specially as in 
the preceding case, mutcUis mutandis; but the more usual course is to declare upon his 
origmal relation of payee or indorsee [as in Nos. 1 and 3]. 

(11.) Acceptor v. Drawer, of an accommodation bill. " For that the said {defend- 
ant,) on , in consideration that the plaintiff, at the request of the said {defendant) 

and for his accommodation, had then accepted a certain biU of exchange of that date 

drawn by the said {defendant), upon the plaintiff for the sum of , payable to one 

E. F. or his order in days [or, months, &c.] after sight [or, the date] of said bill, 

promised the plaintiff to furnish him with money to pay said bill at the time when the 
same should become payable. Yet the said {defendant) never did furnish the plaintiff 
with said money, by reason whereof the plaintiff has been compelled with his own 
money to pay the amount of said bill to the holder thereof, of which the said defend- 
ant had due notice." 

In this case the plaintiff must prove the drawing of the bill and ite acceptance; he 
must rebut the presumption that he had effecto of the drawer in his hands, which re- 
sulta from his acceptance, by some evidence to the contrary; and he must prove that 
he has paid the bill. This last fact lb not established by production of the bill with- 
out proof that it has been put into circulation since the acceptance; nor will a receipt 
of payment on the back of the bill suffice, without showing that it was signed by 
some person entitled to demand payment. Ffiel v. Vanbatenbui^, 2 Campb. 439. 

It 18 to be observed, that, where, by the course of practice, the precise time of filing 
the declaration does not judicially appear, it may be necessary, and is certainly expe- 
dient, to insert an averment that the time of payment of the bill or note is elapsed. 
But where the declaration is required to be inserted in the writ, or filed at the time of 
commencing the action, as is the case in several of the United States, thLs averment 
is unnecessary. 

1 2 Stark. £v. 203; Chitty & Hulme on Billfi, p. 616. 



PABT rV.] BILLS OP EXCHANGE AND PROMISSORY NOTES. 147 

can be no remedy upon it at law, unless it was in such a state, 
when lost, that no person but the plaintiff could have acquired a 
right to sue thereon. Otherwise, the defendant would be in danger 
of paying it twice, in case it has been negotiated. It is also his 
voucher, to which he is entitled by the usage of merchants, which 
requires its actual presentation for payment, and its delivery up 
when paid.^ Therefore, wherever the danger of a double liability 
exists, as in the case of a bill or note, either actually negotiated 
in blank, or payable to bearer, and lost or stolen, the claim of the 
indorsee or former holder has been rejected.^ And whether the 
loss was before or after the bill fell due is immaterial.^ On 
the other hand, if there is no danger that the defendant will 
ever again be liable on the bill or note, as if it be proved to have 
been actually destroyed, while in the plaintiff's own hands,* or if 
the indorsement were specially restricted to the plaintiff only,^ 
or if the instrument was not indorsed,® or has been given up by 
mistake,^ the plaintiff has been permitted to recover, upon the 
usual secondary evidence. So, if the bill was lost after it had 
been produced in court, and used as evidence in another action.® 

1 Pienon v, Hutchinson, 2 Campb. 211; Hansard v. Robinson, 7 B. & C. 90; 9 D. 
Jb R. 860; Ry. & M. 404, n.; Poole v. Smith, Holt's Cas. 144; Rowley v. Ball, 8 
Cowen, 308; Stoiy on Bills, §§ 448, 449; Ramnz v, Crowe, 11 Jur. 715; 1 £xch. 167; 
in which the caaes are examined, Hansard v, Robinson confirmed, and the question put 
at rest. 

> Davis V. Dodd, 4 Taunt. 602; Poole v. Smith, Holt's Cas. 144; Rowley v. Ball, 8 
Cowen, 803; Mayor v. Johnson, 8 Campb. 824; Bullet v. Bank of Pennsylvania, 4 
Wash. C. C. 172; Champion v. Terry, 8 B. & B. 295. 

> Ibid.; Kirby v. Sisson, 2 Wend. 550. 

* Pierson v. Hutchinson, 2 Campb. 211; Swift v. Stevens, 8 Conn. 481; Anderson 
V, Bobsou, 2 Bay, 495; Rowley v. Ball, 8 Cow. 803. The destruction of the bill maybe 
inferred from circumstances. Pintard v. Tackington, 10 Johns. 104; Peabody v. Den- 
ton, 2 Gal. 851; Hinsdale v. Bank of Orange, 6 Wend. 878, 879. 

* Long V. Bailie, 2 Campb. 214; Bz parte Green way, 6 Ves. 812. 

* Bolt V. Watson, 4 Bing. 278; & c. 12 Moore, 510. 
7 Eagle Bank v. Smith, 5 Conn. 71. 

' Renner v. Bank of Columbia, 9 Wheat. 896. This may have been decided upon 
the ground that the loss was by the officers of the court, while the document was in 
the custody of the law. The same rule has been applied, where the bill has been used 
before commissioners in bankruptcy. Poorley v. Millard, 1 C. & J. 411; 8. c. 1 Tyrw. 
881. In the case of a lost bill, the general and appropriate remedy is in equity, upon 
the offer of a bond of indemnity. 1 Story on Eq. Jurisp. §§ 81, 82; Ex parte Green- 
way, 6 Ves. 812; Pierson v. Hutchinson, 2 Campb. 211; Mossop v, Eadon, 16 Ves. 
480; Cockell v, Bridgman, 4 Beav. 499. In England, however, by Stat. 9 & 10 W. IV. 
c 17, S 8, if any inland bill be lost or miscarried within the time limited for payment, 
the drawee is bound to give another of the same tenor to the holder, who, if reouired, 
must give 'security to indemnify him in case the lost bill should be found. But in 
some cases the courts of law have sustained an action by the payee, for the original 
consideration where the note or bill was not received in extinguishment of the original 
contract (Rolt v, Wat^n, 2 Bing. 278); or, upon the ground that the defendant, being 
the drawer of the bill, had prevented the indorsee from obtaining the money of the 
drawee, by refusing to enable him so to do (Murray v. Carrett, 8 Call, 878). And in 



148 LAW OP EVIDENCE. [PJLBT IV. 

By cutting a bill, or a bank-note, into two parts, as is often done 
for safety of transmission by post, its negotiability, while the parts 
are separate, is destroyed ; in which case the holder of one of the 
parts, on proof of ownership of the whole, has been held entitled 
to recover.^ If the loss of a promissory note is proved, the plain- 
tiff, if he is the payee, may recover, unless it is affirmatively 
proved to have been negotiable ; for, in the absence of such proof, 
the court will not presume that it was negotiable.^ 

§ 157. Same snbject. This amount of proof is incumbent on 
the plaintiff, in order to recover his damages, whatever may be 
the point in issue. But where the general issue is pleaded, the 
plaintiff must also prove every other material averment in his 
declaration. If the issue is upon a point specially pleaded, all 
other averments are admitted, and the evidence is confined to that 
point alone. 

§ 158. Signatttre. After the note or bill is produced, the next 
step is to prove the signature of the defendant, where, by the na- 
ture of the action, or by the state of the pleadings, or the course 
of the court, this proof may be required.^ (a) If the signature is 
not attested, the usual method of proof is by evidence of the per- 
son's handwriting, or of his admission of the f act.^ If it is attested 

other cases, the owner of a bill, lost before its maturity, has been permitted to recover 
at law, on giving the defendant an indemnity (Miller v, Webo, 8 1^. 516; Lewis 
V. PoTtarin, 4 Martin, N. s. 4); but if lost after it had become dne, and had been pro* 
tested, no indemnity was held requisite (Brent r. Erving, 3 Martin, N. a. 803). See iJso 
8 Kent, Comm. 104, and cases cited by Comstock, editor. 

^ Hinsdale v. Bank of Orange, 6 Wend. 378; Ballet v. Bank of Pennsylvania, 2 
Wash. C. C. 172; Patton v. State Bank, 2 N. & McC. 464; Bank of United States 
V. Sill, 6 Conn. 106; Farmers' Bank v. Reynolds, 5 Rand. 186. 

3 McNair v. GUbert, 8 Wend. 844; Pintard v. Tackington, 10 Johns. 104, 105. See 
farther, Bayley on Bills, 418-418. In a sait by the payee against the maker of a 
promissory note, if the note be so matilated that the payee's name is illegible, the 
plaintiff must prove that the note was made to him, and was in his possession at the 
commencement of the suit, and that it was matilated under circumstances not affect- 
ing its validity. Hatch v. Dickinson, 7 Blackf. 48. 

* See fuprOf § 16. 

* Where the plaintiff relies on the defendant's verbal admission that he made the 
note in question, the identity of the note referred to must be satufactorily established. 
Therefore, where the agent of the holder of a note, payable to bearer called on the de- 

(a) By statute in Massachusetts, signa- This statute does not apply, however, 

tures to written instruments declared on or to the signature of a witness to an attested 

set forth as a cause of action or as a ground promissory note. Holden v. Jenkins, 125 

of defence or set-off, shall be taken as ad' Mass. 446. 

miUed, unless the party sought to be In Maine a similar rule is embodied in 

chai^red thereby files in court within the Rule X. Beg. Oen. of the Supreme Court; 

time allowed for an answer, a ^Mcial denial and for the States whore sack role exists, 

of the genuineness thereof, and a demand see ante, c. 1, § 16. 
that they shall be proved at the trial 
Mass. Pub. Stet c. 167, f 21. 



PABT lY.] BILLS OF EXCHANGE AND PBOHISSORT NOTES. 149 

bj a subscribing witness, that witness must be produced, if he is 
to be had« and is competent.^ Some evidence has also been held 
requisite of the identity of the party with the person whose sig- 
nature is thus proved ; but slight evidence to this point will sufiSce.^ 
If it is alleged in the declaration, that the bill was drawn, or ac- 
cepted, or that the note was made by the party, " his own proper 
hand being thereunto subscribed," it has been thought, that this 
unnecessary allegation bound the plaintiff to precise proof, and 
that if the signature appeared to have been made by another, by 
procuration, it was a fatal variance.^ But the weight of later 
authority is otherwise ; and accordingly it is now held, that these 
words may be rejected as surplusage.^ If the instrument was exe- 
cuted by an agent, his authority must be proved, together with his 
handwriting ; and if he was authorized by deed, the deed must be 
produced, or its absence legally accounted for, and its existence 
and contents shown by secondary evidence.^ If the instrument is 
in the hands of the adverse party, or his agent, notice must be 
given to the party to produce it.* 

§ 159. Bereral slgnatnres. If there are several siffnaturea, they 
must all be proved ; and an admission by one will not, in general, 

fendant with the alleged note in his pocket, which he did not exhibit, but told him he 
had a note for that amount against him, and reauested payment of it for the plaintiff; 
and the defendant replied that he had ffiven sucn a note, and would pay it if the plain- 
tiff would make a small deduction, and indulge him as to time; it was held, that the 
note declared on and produced at the trial was not sufficiently identified with that to 
which the admission referred, and that the proof was insufficient. Palmer v. Manning, 
4 Denio, 131. 

1 See ante, vol. i. §§ 569-674, where the proof of the execution of instruments is 
more fully treated. 

* See ante, vol. i. f 575; Nelson «. Whittall, 1 B. ft Aid. 19; Page v, Mann, 1 M. 
Jb H. 79; Mead v. Young. 4 T. R. 28; Bulkeley v. Butler, 2 B. ft C. 484; Chitty 
& Hulme on Bills, 641, 642 (9th ed.). Sometimes identity of name will suffice. 
Boden v. Ryde, 4 Ad. k £1. n. 8. 680-684. 

» 2 Stark. Ev. 208; 2 Phil. Ev. 4. 

* This point was first raised before Lord Ellenborough, in 1804, in Levey v. Wilson, 
6 Esp. 180, when he held it matter of substance, and nonsuited the plaintiff for the 
variance. Afterwards, in 1809, in Jones v. Mars et al., 2 Campb. 805, which was 
against partners, as drawers of a bill, "their own hands being thereto subscribed,'* and 
the proof being, that the name of their firm of " Mars ft Co." was subscribed by one 
of them only, the same learned judge refused to nonsuit the plaintiff for that cause. 
In the following year, the original point being directly before him in Helmsley «. Loa- 
der, 2 Campb. 450, he said it wotdoL be too narrow a construction of the words ''own 
hands," to require that the name should be written by the party himself. And of 
this opinion was Lord Tenterden, who accordingly held the words mere surplusage, in 
Booth V. Grove, 1 M. ft Malk. 182; 8. o. 8 C. k P. 885. See also Chitty ft Hulme on 
BOls, pp. 570, 627 (9th ed.). If the party signed by the initials only of his name, in- 
tending thereby to be bound, it is sufficient. Palmer v. Stephens, 1 Denio, 471. 

* Johnson v. Mason, 1 Esp. 89. 

* See ante, vol. i. §{ 560-568. Notice to the agent is unnecessaiy. Barton 
V. Payne, 2 C. & P. 520. 



150 LAW OP EVIDENCE. [PABT IV. 

bind the othera.^ But where the acceptors are partners, it will 
suffice to prove the partnership, and the handwriting of the partner 
who wrote the signature.^ If the signature is not attested by a 
subscribing witness, the admisaion of the party is sufficient proof 
of it ; otherwise the subscribing witness must be called ; ^ but the 
admission of the party that the signature is his, if not solemnly 
made, does not estop him from disproving it.* Payment of money 
into court, partial payments made out of court, promises to pay, a 
request of forbearance, and for further time of payment, and a 
promise to give a new security, have severally been deemed suffi- 
cient to dispense with proof of the signature.* A promise by the 
maker to pay a note to an indorsee, made after it fell due, has 
been held an admission not only of his own signature, but of all 
the indorsements, superseding the necessity of further proof.* 

§ 160. Varianoe. The bill or note produced must conform in 
all respects to the instrument described in the declaration; for 
every part of a written contract is material to its identity, and a 
variance herein will be fatal.^ (a) But where it is alleged that the 

1 See ante, vol. L § 174; Gray v. Palmer, 1 Esp. 135; Sheriff v, Wilkes, 1 East, 48; 
Canrick v, Vickery, 2 Doug. 653, n. 

3 See arUe, vol. i. § 177. As to admission by partners, see ante, vol. i. § 112, and n. 
In the modern English practice, under the issue of non OMeperuntf though it be shown, 
in defence, that the acceptance was ^ven by one partner in fraud of the firm, yet 
such proof does not require the plaintiff to show that he gave a consideration for the 
bill, unless the evidence of the defendants affects him with knowledge of the fraud. 
MusgraVe v. Drake, 5 Ad. & El. N. 8. 185. In the American courts, where the older 
rules of practice are still observed, it is otherwise. See tT^ra, § 172. A signiiture by 
the names and surnames of the several members of the firm is sufficient to charge 
the partnership. Norton v. Seymour, 8 M. G. & S. 792 ; Blodgett v. Jackson, 40 
N. H. 21. 

« See anU, vol. i. §§ 569-572. 

^ Hall V. Huse, 10 Mass. 39; Salem Bank v. Gloucester Bank, 17 Mass. 1; ante, voL 
i. §§ 27, 186, 205, 572. 

^ See ante, vol. i. § 205, Israel v. Benjamin, 8 Campb. 40; Bosanqnet v. Anderson, 
6 Esp. 43; Helmsley v. Ij(Mider, 2 Campb. 450; Jones v, Morgan, Id. 474. 

« Eeplinger v. Griffith, 2 GUI & Johns. 296. 

7 See vol. i. §§ 56, 61, 63, 64 ; and supra, §§ 11 ft, 11 d, as to the law of variance. A note 
made payable to the maker's own order, and by him indorsed in blank, will support a 
count on such a note as made payable to the bearer. Hooper v. Williams, 12 Jur. 270. 
Masters o. Baretto, 8 M. G. & S. 438. But prior to its indorsement it is not a prom- 
issory note, within the Stat 3 & 4 Anne, c. 9. Brown v. De Winton, 12 Jur. 678. {b) 

» 

(a) But a memorandum written at the the amount, and a memorandum that it 

bottom of a promissory note which is con- has been protested for non-payment. Buhl 

tradictory to the note, as where an addition v. Trowbridge, 42 Mich. 44. 
to a note made it payable before ite date, (6) So held in the Court of Exchequer, 

does not form part of the contract, but is Flight «. Maclean, 16 Mees. k W. 51; 

immaterial and may be omitted in the copy Hooper v, Williams, 2 Ezch. 13; also in 

of the note set out in the declaration, with- WookIs o. Ridley, 11 Humph. 194; but in 

out causing a variance. Way v. Batohel- Wood v, Mytton, 10 Ad. & £1. N. a. 805, 

der, 129 Mass. 861. This is true of a it was held that such an instrument was a 

receipt upon the back of a note of part of promissoiy note before indorsement. 



PABT IV.] BILLS OF EXCHANGE AND PBOMISSOBT NOTES. 151 

party on such a day made his promissory note, but it is not alleged 
that the note bore date on that or any other day, this is not con- 
sidered as giving a date to the note, so as to cause a variance by 
proof of a note bearing date on a different day.^ If there be any 
iJteitttion apparent on the instrument, tending to render it sus- 
pected, the plaintiff must be prepared with evidence to explain 
it.' (a) And if the plaintiff sue as payee of a bill or note, which 
purports to be payable to a person of a different name, this also 
may be explained by evidence iUiundey if the record contains the 
proper averments.^ So, if the drawer and drawee of a bill are of 
the same name, and the record does not assert that they are two 
persons, parol evidence is admissible that they are one and the same 
person, and of course that the bill amounts, in effect, to a mere 
promissory note.^ If the action is by the indorsee against the 
indorser of a bill dishonored on presentment for payment, the alle- 
gation of its acceptance is not descriptive of the instrument, but 
is wholly immaterial, and therefore need not be proved.^ And in 
an action against the acceptor, if his acceptance be unnecessarily 
stated to have been made to pay the bill at a particular place, and 
there is an averment of presentment there, this averment also 
is immaterial, and need not be proved.^ If the currency mentioned 
in the biU is foreign, and its equivalent value has not been estab- 
lished and declared by law, the value will of course be alleged in 

> Smith V. Loid, 9 Jar. 450; 8. c. 2 DowL k L. 579. 

* See vol L § 564. 

■ Willis V, Barret, 2 Stark. 29. 

* Boach V. Ostler, 1 Man. & Ry. 120. If the declaration is on a bill of exchange, 
as drawn by S. S., and made nayable "to S. S. or order/' and the bill produced in 
evidence reads, ** Pay to my oraer," it is no yariance. Smith v. McClure, 5 East, 476; 
Bluett V. Middleton, 1 Dowl. k L. 876; Masters v. Barrets, 2 C. & K. 715. 

^ Tanner v. Bean, 4 B. & C. 812, overruling Jones v, Morgan, 2 Camph. 474, as to 
this point. 

* Freeman v. Kennell, Chitty and Hnlme on Bills, p. 616. 

(a) This arises from the ^nend burden plaintiff to show the defendant's consent 

of proof which is on the plaintiff, to show to the alteration. 

that the instrument declared on is the The unauthorized alteration of a note 

genuine and valid promise of the defend- after delivery discharges the promisor, 

ants. But the paper itself, unaided by Angle v. North Western Ins. Co., 92 U. S. 

other evidence, may satisfy the Jury, or it 830 ; Cape Ann National Bank v. Burns, 

may not. It may explain itself or it may 129 Mass. 596. An alteration on a note 

present indications of fraud or foigery. will avoid the note as to those parties who 

in each case the burden of proof rests on have not consented to the alteration, al- 

the plaintiff, and the question of whether though it may have been made without 

the alteration is a forgery or not is a uues- any fraudulent intent Draper v. Wood, 

tion of fact for the jurv. Dodge v. Has- 112 Mass. 815; Booth v. Powers, 56 N. Y. 
kell, 69 Me. 429. Ana when a material 
alteration is proved, the burden is on the 



152 LAW OF EVIDENCE. [PABT lY. 

the declaration, and must be proved, including the rate of ex- 
change when the bill became due ; together with the duration of 
the usances, if any are stated in the bill. 

§ 161. Defendant's liabiUty. SECONDLY, the plaintiff must show 
how the defendant was a party to the biU or note^ and the nature 
of his contract. If the action is against the acceptor^ the acceptance 
must be proved. And an acceptance, where it is not otherwise 
qualified or restrained by the local law, maj be either verbal or in 
writing ; or may be either by express words, or by reasonable im- 
plication.^ By tlie French law, every acceptance must be in writ- 
ing. By the English law, the acceptance of a foreign bill may be 
verbal or in writing ; but that of an inland bill must be only in 
writing, on the bill itself. In all other cases an acceptance by 
letter or other writing is good ; though it is usually made on the 
bill.^ If the acceptance is by an agent, his authority, as we have 
seen in other cases, must be shown.^ Where the action is against 
some of several acceptors or makers^ the others are competent 
witnesses for the plaintiff, to prove the handwriting of the de- 
fendant.^ So, if the action is against partners^ after proof of the 
partnership, the admissions of one of the firm are good against all.^ 
A signature by the names and surnames of the respective partners 
is sufficient to charge the partnership; and it seems that such 

1 Stoiy on Bills, §§ 242, 248. 

« Story on Bills, § 242; Chitty k Hulme on Bills, pp. 814-338 (9th cd.). A prom- 
ise to accept an existing bill, specifically dejjcribed, is a good acceptance. Grant v. Hunt, 
lU.Qt.k S. 44; 10 Jur. 228; Story on Bills, § 244; but whether a promise to accept a 
non-existing bill, to be drawn at a future day, is a good acceptance, is a point not 
universally agreed. As between the drawee and a third person, who has taken the 
bill upon the faith of the promise to accept it, the doctrine was for a long time main- 
tained in England, that it amounted to an acceptance of the bill. But this doctrine 
has recently been re-examined and explicitly overruled, in the Bank of Ireland 
V. Areher, 11 M. & W. 883. "But the rule,'^' says Mr. Justice Story, "as formerly 
held, always included the qualification, that the paper containing the promise should 
describe the bill to be drawn in terras not to be mistaken, so as to identify and distin- 
guish it from all others; that the bill should be drawn within a reasonable time after 
the iMiper was written; and it should be received, by the person taking it, upon the 
faith or the promised acceptance; and, if either of these cireumstancesshould fail, the 
promise would not amount to an acceptance. Under these qualifications, the nile 
seems to be firmly established in America upon the footing of the old authorities. But 
the rule is applicable only to the cases of bills payable on demand, or at a fixed time 
after date, and not to bills payable at or after sight; for it is obvious, that, to consti- 
tute an accejjtance in the latter cases, a presentment is indispensable, since the time 
that the bill is to run cannot otherwise be ascertained." Story on Bills, § 249. And 
see Chitty & Hulme on BiUs, pp. 284, 285-297: Ulster County Bank v, MacFarlan, 8 
Hill (N. Y.), 482. r^ f J 

» Supra § 69-68. 

« York V, Blott, 5 M. & S. 71; Chitty & Hulme on BiUs, p. 627 (9th ed.). See amU, 
▼ol. 1. § 899; Poole v. Palmer, 9 M. & W. 71. 
» See anU, voL i. §§ 172, 174, 177. 



PABT lY.] BILLS OF EXCHANGE AND PBOMISSOBT NOTES. 158 

signature made by one of the partners will suffice.^ If the bill is 
drawn payable afUr siffhty it is in general necessary to prove the 
precise time of acceptance ; but if the acceptance is dated, this is 
sufficient evidence of the time ; and though the date is in a hand 
different from that of the acceptor, it will be presumed to have 
been written by his authority, by a clerk, according to the usual 
course of business.^ If the acceptance was by parol, the person 
who heard it must be called ; and if the answer relied on was given 
by a clerk, his authority to accept bills for his master must also 
be proved.' (a) 

§ 162. Same subject In an action against the drawer^ maker, 
or indarser of a bill or note, the same proof of signature, and of 
agient's authority, is requisite, as in the case of an acceptor. ^ (i) 

§ 168. PlaintifiTB right to sue. In the THIBD PLACE, the plaintiff 

' Norton v. Seyrnoixr, 8 M. G. & Sc. 792. 

* GloBSop V. Jacob, 4 Campb. 227; 8. c. 1 Stark. 69; Obitty & Holme on Bills, p. 
292 (9tb ed.). An acceptance by the wife of the drawee, by writing her own name 
on tbe bill, is sufficient to bind him as acceptor, if she had authority to accept the bill. 
Lindus v. Bradwell, 17 Law Jour. 121; 9 Law Mag. n. s. 146; 12 Jnr. 230; 5 M. 0. & 
Sc 588. The mere production of a bill, with formal proof of the acceptor's hand- 
writing, is prima facie evidence that the bill was accepted during its currency, and 
within a reasonable time of its date, such being the regular course of business. The 
reasonableness of the time depends on the relative places of abode of tlie parties to the 
lall. Roberts v. Bethel!, 14 Eng. Law & £q. 218. 

' Sawyer v. Kitchen, 1 £sp. 209. As to what conduct or words amount to a verbal 
acceptance, see Chitty & Hulme on Bills, pp. 288, 289 (9th ed.) ; Story on Bills, 
§§ 243-247. 

* As to the proof of handwriting, see ante, vol. i. §§ 676-581. As to proof by the 
suhecribing witness, see ante, voL i. §§ 569-575. And as to admissions by the party, 
or by one of several parties, see aaite, vol. i. §§ 27, 172-205. 

{a] Where a note, payable on time, is in an action brought by them against one 
indorsed, and the indorsement is not dated, of their members, to recover assessments 
and there is no evidence to show when it on a deposit note, must prove not only the 
waa made, the presumption is that the actual assessments, but must produce pro- 
transfer of the note was made at or soon per evidence of their act of incorporation 
after its date. Balch v. Onion, 4 Cush. and by-laws, and show that the assess- 
(Maaa.) 559. In an action by the payee of ments are made in accordance therewith, 
a negotiable note a^inst two or more per- Atlantic Mut. Fire Ins. Co. v, Fitzpatrick, 
sons as joint promisors, where one of the 2 Gray (Mass.), 279. And if the mutual in- 
defcndants' names is on the face of the surance company be a foreign one, it must, 
note, and the names of the others are on in such an action, show affirmatively that 
its back, without date and in blank, the the contract of insurance, which is the 
legal presumption is that all the names consideration of the note, is a valid con- 
were signed at the same time. Benthall tract according to the laws of the State in 
V. Judkins, 13 Met. (Mass.) 265. The legal which it is made. Jones v. Smith, 3 Gray 
presumption is that a note has been trans- (Mass.), 501. But if the action on sucn 
ferred m the usual course of business, for note is brought by the indorsee, and he is 
a valuable consideration, and before it was a bona fide holder without notice, a compli- 
dishonored. Andrews v. Chadboume, 19 ance by the company with the requisitions 
Barb. (N. Y.) 147; Leland v. Famham, of law may be presumed, in the absence of 
25 Yt 558. evidence to the contrary. Ibid. ; Williams 

(d) A matoal fire insoianoe company, v. Cheney, Id. 215. 



164 LAW OP EVIDENCE. [PABT IV. 

must prove his interest in the bill or note^ or his title to sue thereon. 
Where the action is between the immediate parties to the contract, 
as payee and maker of a note, or payee and acceptor of a bill, the 
plaintiff, ordinarily, has only to produce the instrument and prove 
the signature.^ But where the plaintiff was not an original party 
to the contract, but has derived his title by means of some inter- 
mediate transfer, the steps of this transfer become, to some extent, 
material to be proved. The extent to which the proof must be 
carried will generally depend upon the extent of the allegations 
in the declaration. Thus, if a note made payable to A. B. or 
bearer is indorsed in blank by the payee, and the holder, in an 
action against the maker, declares upon the indorsement, he must 
prove it ; although the allegation of the indorsement was unneces- 
sary ; for he might have sued as bearer only, in which case the 
indorsement need not be proved.^ (a) If the name of the payee 
in the bill or note was left blank, and the plaintiff has filled it by 
inserting his own name, he must show either that he was intended 
as the original payee, or that the bill came regularly into his pos- 
session.^ If there are several persons of the same name with the 
payee, the possession of the bill or note is prima facie evidence 

^ King V. Milson, 2 Campb. 5. • See also Peacock v. Rhodes, 2 Doug. 688. 

' Way nam v. Bend, 1 Campb. 175. And see anU, vol. i. § 60. If he sues as 
bearer only, the indorsement need not be proved. Wilbour v. Turner, 5 Pick. 526. 
See also Blakelv v. Grant, 6 Mass. 886. And possession of a negotiated bill or note is 
prima facie evidence of title in the holder, on proof of the indorsements. See Moh- 
tam V, Mills, 1 Sandf. S. C. 37. Every indorsement of a promissory note will be pre- 
sumed to have been made at the place of making the note, until the contnuy 
appears. Duncan v. Sparrow, 8 Rob. (La.) 167. 

* Crutchley v. Mann, 5 Taunt. 529 ; s. c. 1 Marsh. 29. Where the payee indorsed 
the note, but did not deliver it, and after his death it was delivered by tne executor to 
the plaintiff, it was held that the plaintiff had no title to sue on the note. Bromage «. 
Lloyd, 1 Exch. 82. 

(a) In an action on a note payable to a the note, because he is not a party to it 

jHirson named, or bearer, when the plain- The producing the note, though prima 

tiff brings the note declared upon m his facie evidence of ownership, is overcome 

hand and offers it in evidence, this is not by the special indorsements. Royce v, 

only evidence that he is the b<)arer, but ifye, 52 Vt. 872. It is no defence to a 

also raises a presumption of fact that he note that the plaintiff has no beneficial 

is the owner; and this will stand as proof interest in the note sued' on, and must 

of title until other evidence is produced to hand over the proceeds to the real owner, 

control it. And where the note is payable Spofford v. Norton, 126 Mass. 538 ; Way 

to a corporation, of which the plamtiff is v, Richardson, 8 Gray (Mass.), 412. But 

the general agent, and, as such, has the where the plaintiff sued as administrator of 

custody of all their notes, this fact alone the president of a bank, and the defence 

is not sufficient to rebut the general pre- was that the intestate never had possession 

sun.ption that he is the owner. Pettee v, of the note as his own propertv, nor claimed 

Prout, 3 Gray (Mass. ), 502. If, when the to have, but that he had it only as president 

plaintiff produces the note at the trial, the of the bank, this was held a good defence, 

indorsements are all special and do not The possession must not be fraudulent, 

make a title in him, he cannot recover on Towne v, Wason, 128 Mass. 517. 



PABT IT.] BILLS OF EXCHANGE AND PBOBdSSOBT NOTES. 165 

that the plaintiff was intended ; but if there be two, father and 
son, in the absence of other proof, it will be presumed that the 
father was intended.^ (a) And> where the bill or note is made 
payable to a firm by the name of A. & Co., the payees, in a suit 
in their own names, must prove that thej were the persons who 
composed the firm.^ 

§ 164. Same subject. AdmisBlons of defendant But though 
the plaintiff .must furnish the proof of his own title, yet this proof 
may consist of admissions by the defendant, apparent upon the 
bill or note. For every person giving currency to commercial 
paper is understood thereby to assert the genuineness of all such 
signatures, and the regularity of all such previous transactions 
as he was bound to know. Thus, the acceptor of a bill, after 
sight, whether in general, or for honor, or supra protest^ by the 
act of acceptance^ admits that the drawer's signature is genuine, 
that he had a right to draw, that he was of proper age, and other- 
wise qualified to contract, and that he bears the character in which 
he assumes to draw, such as executor, partner, and the like. But 
there is no implied admission, in such case, of the genuineness of 
the signature of the payee, or of any other indorser.* (J) So, also, 

1 Sweeting v. Fowler, 1 Stark. 106 ; Stebbing v. Spicer, 8 M. G. & S. 827 ; tmU^ 
ToL L § S38, D. 

2 Waters v, Paynter, Chitty & Hulme on Bills, 687, n. (1) (9th ed.). 

« Wilkinson v. Lutwidge, 1 Stra. 648 ; Smith v, Seare, Bull. N. P. 270; Porthouse 
». Parker, 1 Caxnpb. 82 ; Taylor «. Croker, 4 Esp. 187 ; Baas v. Clive, 4 M. & S. 13 ; 
Vcre V. Lewis, 3 T. R. 182 ; Parminter v, Symons, 2 Bro. P. C. 182 ; 1 Wils. 185 ; 
Aspinal v. Wake, 10 Bing. 61 ; Story on Bills, §§ 113, 262 ; Schultz v. Astley, 2 Bing. 
N. C. 644 ; Pitt v. Chappelow, 8 M. & W. 616 j Braithewaite v. Gardiner, 10 Jur. 
591 ; Halifax v. Lyle, 18 Law Joum. Exc. 197 ; Smith v. Maraack, 6 D. At L. 363 ; 
Bulk of Commerce v. Union Bank, 8 Comst. 230. 

(a) In some States, if a person, not an Prom. Notes, §§ 69, 472-480; Lowell v. 

ifidoTsee, places his name in blank on a Gage, 38 Me. 35 ; Sargent v. Bobbins, 19 

note, before it is negotiated or passed, and N. H. 672. By statute in Massachusetts 

so before it has acquired the character of such signer is entitled to notice of non- 

tbe contract, the holder may 611 up the payment just like an indorser. Pub. Stat 

blank so as to charge such indorsee as a c. 77, § 15. 

joint and seyeral promisor and surety. (6) Acceptance admits that the bill is 

The fact of entrusting such blank with an- drawn by a competent party. Smith v. 

other is evidence of an authority to iUl up Marsack, 6 C. B. 486; and, when it is 

something over it, and the actual authority drawn by an agent, that the agent was 

to fill it up in any particular form may be duly authorized: but it does not admit the 

proved by evidence aliunde. Riley v, genuineness or authority of the indorse- 

Gerrish, 9 Gush. (Mass.) 104 ; Union ment. Garland v. Jacomb, L. R. 8 Ex. 

Bank of Weymouth & B. v, Willis, 8 Met. 216; Beeman v. Duck, 11 M. & W. 261. 

(Mass.) 504 ; Benthall v. Judkins, 13 Where a bank, in answer to the inquiry 

Met. (Mass.) 265 ; Mecomey t?. Stanley, 8 whether a check is good, replies in the 

Cash. (Mass.) 86; Bryant t?. Eastman, 7 affirmative, it admits the genuineness of 

Id. Ill; Howe V. Merrill, 6 Id. 80; Stozy, the signatorey and that the drawer has 



166 LAW OP BVIDBNCB. [PABT IV. 

the indorsement of a bill or note is an admission of the genuine- 
ness of the signature of the drawer, or maker.^ (a) And if the 
bill is drawn by procuration, the acceptance admits the procura- 
tion.2 

§ 165. Same subject. These admisBions, however, by the act 
of acceptance or indorsement, are strictly limited to those things 
which the party was bound to know. Therefore, though a bill is 
drawn payable to the drawer's own order, and is indorsed with 
the same name, whether by procuration or not, yet the acceptance 
is not in itself an admission of the indorsement, but only of the 
drawing;* though probably the jury would be warranted in in- 
ferring the one, from the admitted genuineness of the other.^ So, 
though the bill has been shown to the drawer, with the indorse- 

1 Free V. Hawkins, Holt's Cas. 550 ; Young v. Patterson, 11 Rob. (La.) 7. 

s Robinson v. Yarrow, 7 Taunt. 455 ; Story on Bills, §§ 262, 263, 412, 451. 

* Robinson v. Yarrow, 7 Taunt. 455 ; Storv on Bills, §§ 262, 268, 412, 451 ; SmiOi 
V, Chester, 1 T. R. 654. But where the bill is made payable to the drawer's own 
order, and by him is indorsed, the acceptance, though it may not be an admission of 
the genuineness of his indorsement (a distinction which Mr. Justice Story thought 
yery nice and not very satisfactory, see Story on Bills, § 412), yet is an admission of 
his authority to transfer the bill to the bona fide holder. Thus, where, in an action by 
the indorsee against the acceptor of such a blU, it appeared upon demurrer, that the 
drawer, at the time of drawing the bill, was an uncertificated bankrupt, and so had no 
right to control the funds, ^et it was held, that the defendant, by the acceptance, had 
conclusively admitted his right so to do, and, as against the indorsee, was estopped to 
set up such a defence. Pitt v. Chappelow, 8 M. & W. 616 ; Braithwaite v. Gardiner, 
10 Jur. 591. And see Story on Bills, § 85, n. 

« See ante, vol. i. §§ 578, 581 ; Alport v. Meek, 4 C. & P. 267. lu this case, as it 
appeared, by the plaintiff's own showing, that neither of the signatures was in the 
handwriting of the nominal drawer, for the want of further explanatory evidence, he 
was nonsuited. See also Jones v. Tumour, 4 C. & P. 204. 

funds to meet it. But it is not thereby Nat Bk. of Com. v. Nat. Mech. Bk. Asa., 

estopped to deny that the name of the 55 N. Y. 211. 

payee, or the amount, is genuine. If a (a) A person who procures notes to be 
bank certifies a check for the purpose of di»count€Ki by a bans impliedly warrants 
giving it credit for negotiation, it is bound the genuineness of the signatures of the 
for the genuineness of the filling. Espy makers and indorsers; and such implied 
V. First N. Bk. of Cin., 18 Wall. (U. S.) contract is not a representation concerning 
604. A forged a certificate of stock, and the character, credit, or ability of another, 
borrowed money of a bank. When A paid within the Statute of Frauds. Oibot Bank 
the loan, the cashier of the bank signed v. Morton, 4 Gray (Mass.), 156; Markle v. 
the transfer on the back of the certificate Hatfield, 2 Johns. (N. Y.) 455; Herrick v. 
in blank, for the purpose of restoring the Whitney, 15 Id. 240; Canal Bank v. Bank 
certificate to A. A afterwards borrowed of Albany, 1 Hill, 287; Talbot v. Bank of 
money of B on the same certificate. Held, Rochester, Id. 295. And if the person 
that the bank, by signing the transfer, procuring the notes to be discounted by a 
warranted the genuineness of the certifi- bank says, when offering them for dis- 
cate, and was liable to the holder for the count, they are good, and in case of non- 
amount borrowed. Matthews v. Mass. parent he will see them paid, this is no 
Nat Bk., U. S. G. Ct. Mass. Dist. 1874, evidence of a waiver by the bank of the 
10 Alb. L. J. 199. But a bank is not implied warranty of the genuineness of the 
held to know the genuineness of the filling signatureB. Cabot Bank v, Morton, ubi 
up of a check drawn upon and paid by iC supra. 



PART IT.] BILLS OF EXCHANGE AND PBOMISSOBT NOTES. 157 

ment of the payee upon it, and his objection to paying it was 
merely because it was drawn without consideration, yet this will 
not dispense with proof of the indorsement.^ But where there 
are successive indorsements, which are all laid in the declaration, 
and are therefore generally necessary to be proved,^ yet, if the 
defendant apply to the holder for further time, and offer terms, 
this is an admission of the plaintiff's title, and a waiver of proof 
of all tiie indorsements except the first.^ So, if the payee deliv- 
ered it, with his name indorsed on it, to another, the proof of 
this fact will dispense with direct proof of the indorsement.* So, 
if the drawee, at the time of acceptance of an indorsed bill, ex- 
pressly promises to pay it, this has been held an admission of the 
ihdorsements.^ 

§ 166. Same subjeot. The plaintiff is not bound to allege, nor 
of course to prove^ any indorsements but such as are necessary to 
convey title to himself. All others, therefore, may be stricken out ; 
even after the bill has been read in evidence, and after an objec- 
tion has been taken on account of variance.^ And in an action 
against a subsequent indorser, it is not necessary to prove any in- 
dorsement prior to his own, even though alleged.^ If the action 
is against the drawer or acceptor, and the first indorsement was 
in blank, it will be unnecessary to prove any of the subsequent 
indorsements, though they were in full; they may therefore be 
stricken out at the time of trial, unless set out in the declaration ; 
which, however, may in that case be amended.® If the bill or note 
was made payable to the order of a fictitious person, and the party 
sued knew that fact when he became party to the bill or note, or 
before he transferred it, this will dispense with proof of the hand- 

^ Ihuican v. Scott, 1 Campb. 101. 

* Chitty & Holme on BUIa, p. 642 (9th ed.) ; ante, Yol. i. § 60. 

* Bosanqaet v. Anderson, 6 Esp. 43. 

* Glover v. Thompson, Ry. & M. 403. Bat where the acxieptor negotiated the hill 
with the drawer's name indorsed, he was not allowed, as against the indorsee, to plead 
that it was not indorsed by the drawer to the plaintiff, in addition to a plea denying 
the acceptance. Gilmore v. Hague, 4 Dowl. P. C. 303. 

* Hankey v. Wilson, Sayer, 223. And see Sidford v. Chambers, 1 Stark. 826. 

* Mayer v. Jadis, 1 M. & Bob. 247. And see DoUfus v. Frosch, 1 Denio, 867. 

7 Critchlow v. Pany, 2 Campb. 182 ; Lambert v. Pack, 1 Salk. 127 ; Chaters v. 
Bell, 4 Esp. 210. 

> Walwp V. St Qnintin, 1 B. & P. 668 ; B. o. 2 Esp. 515 ; Chaters v. Bell, 4 Esp. 
210 ; Smith v. Chester, 1 T. R. 654. If the note or bill, though indorsed and trans- 
ferred, gets back again into the hands of the pt^ee, he is prima fade the legal owner. 
Dngan & aL v. United States, 8 Wheat. 172. The holder ma^ derive title to himself 
from any preoeding indorser, striking out the intennediate indorsements. Emerson 
V. Cutts, 12 Mass. 78 ; Tyler v. Binney, 7 Maes. 479 ; Waterrliet Bank v. White, 
1 Denio, 608. 



168 ' LAW OP EVIDENCE. [PABT IV, 

writing of the fictitious indoraer.^ (a) It may here be added, that, 
where the indorser of a bill or note is not a party to the suit, he is 
generally a competent witness to prove his own indorsement ; ^ and 
that the indorsement of an infant ; ^ or, of a feme covert^ she being 
the agent of her husband ; or, of a trader, after an act of bank- 
ruptcy,^ if he received the value, — are alike sufiQcient to convey 
title to the indorsee. 

§ 167. Case of partnership. In an action against the drawer or 
acceptor of a bill payable to the order of several partner^^ it is in 
general necessary to prove the partnership and the handwriting 
of the partner or agent of the firm by whom it was indorsed.® 
But if tibe partnership has been dissolved, it is not necessary, in 
an action upon a bill, drawn and indorsed by one partner in the 
name of the firm, to prove, that the bill was drawn and indorsed 
before the dissolution ; for the bill will be presumed to have been 
drawn on the day of its date, and the jury will be at liberty to 
infer, that the indorsement, if without date, was made at the same 
time.^ (6) If the plaintiffs sue as indorsees of a bill indorsed in 
blank, they need not prove their partnership, nor that the bill 
was indorsed or delivered to them jointly; for the indorsement 
in blank conveys a joint right of action to as many as agree in 
suing on bill.^ But if a bill or note is payable or indorsed spe- 
cially to a firm, by their partnership name, and they sue thereon, 

1 Minet v. Gibson, 8 T. R. 481 ; Bennett «. Farnell, 1 Campb. 180 e ; Chitty & 
Hulme on Bills, pp. 157, 158 (9th ed.) ; Story on Bills, § 200 ; Cooper v, Meyer, 10 
B. & C. 468. 

> Richardson v. Allan, 2 Stark. 884 ; ante, vol. i. §§ 190, 388, 885. 

' Taylor v. Croker, 4 £sp. 187 ; Nightingale v. Withington, 15 Mass. 278 ; Jones 
V. Darch, 4 Price, 800. 

* Cotes V, Davis, 1 Campb. 485 ; Barlow r. Bishop, 1 East, 484 ; Miller 9. Delama- 
ter, 12 Wend. 483 ; Lord v. Hall, 8 M. G. & S. 627 ; Stevens v. Beals, 10 Cush. 291. 

* Smith V. Pickering, 1 Peake's Cas. 50. 

* Chitty k Hulme on Bills, pp. 87-61, 643 (9th ed.). 
7 Anderson v. Weston, 5 Bing. N. C. 296. 

* Ord V. Portal, 8 Campb. 289, per Ld. Ellenborongh ; Attwood v. Rattenbnry, 
6 Moore, 579, per Parke, J. ; Rordasnz v. Leach, 1 Stark. 446. 

(a) Where the payee of the note was the first publication of notice on said peti- 

the '' New England Steam & Gas Pipe tion, the two partners divide between 

Co.," and there was no such company themselves certain promissory notes, the 

then existing, but A was carrying on property of the partnership, and payable 

business under that name, A may transfer to the partnership firm, either imrtner, 

the title to the note by an indorsement in before the dissolution of the firm, by the 

his own name. Bryant v. Eastman, 7 publication of notice on the petition of 

Cush. (Mass.) 111. the individual partner, may indorse the 

f 6| Where one of two partners files his partnership name on tiie notes which he 

indinduid petition for the benefit of the takes under said division. Mechanics* 

insolvent law, and afterwards, but before Bank v. Hildreth, 9 Cosh. (Mass.) 856. 



PAST lY.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 159 

strict proof must be made, that the firm consists of the persons 
■who sue.^ 

§ 168. In case of blank indorsement. The like effect is given 
to a blank indorsement in other cases ; for in pleading it is suffi- 
cient, prima facie^ to convey a title to the actual holder, and of 
course nothing more need be proved. Thus, where a promissory 
note indorsed in blank was delivered to one to get it discounted, 
and he shortly afterwards returned with the money, which he paid 
over, this was held sufficient to entitle him as executor to recover 
judgment upon the note as indorsed to his testator.^ But in an 
action by the executor of the payee, against the acceptor, it is 
necessary to allege and prove, that the acceptance was in the tes- 
tator's lifetime.' If the note, after being indorsed in blank, is 
delivered in pledge by the payee, as collateral security for a debt, 
this will not prevent the payee from suing upon it in his own 
name, or again transferring it, subject only to be defeated by the 
claim of the pledgee.^ 

§ 169. In case of drawer against acceptor. If the action is 
by the drawer against the acceptor of a bill, which, having been 
dishonored, he has been obliged to pay to the holder, and these 
facts are alleged in the declaration, the plaintiff must prove the 
return of the bill, and the payment by him ; but it is not neces- 
sary to prove, that the acceptor held funds of the drawer, this 
being admitted by the acceptance.* And if a prior indorser, who 
has been obliged to pay a subsequent indorsee, sues the acceptor, 
it has been held that he must .prove such payment.® But in all 
these actions, founded on the return of a bill, if it is shown that 
the instrument was once in circulation, it will be presumed that 
it came back into the plaintiff's hands by payment, in the regu- 
lar course, by which dishonored paper goes back to the original 
parties.^ 

§ 170. In case of aooommodation acceptor against drawer. Where 
the action is by an accommodation acceptor against the drawer, 

^ 3 Campb. 240, n. ; Chitty & Hulme on Bills, p. 644 (9tli ed.). In such case the 
names of the partners may be suggested to the witness by whom the partnership is 
proved. AnU, Yol. i. § 436. 

< Godson V. Richards, 6 C. & P. 188. 

* Anon., 12 Mod. 477, per Holt, C. J. And see SareU v. Wine, 8 East, 409. 
^ Fisher «. Bradford, 7 Greenl. 28 ; Bowman v. Wood, 15 Mass. 534. 

* Chitty ft Hulme on Bills, pp. 587, 647 (9th ed). ; Vere v. Lewis, 8 T. R. 182. 

* Mendez v. Carreroon, 1 Ld. Kaym. 742. 

7 Pfiel 9, Vanbatenbnrg, 2 Campb. 489 ; Dugan v. United States, 8 Wheat 172 ; 
Baring v. Clark, 19 Pick. 220. 



160 LAW OP BVIDBNCB, [PAET IV. 

either for money paid, or specially for not indemnifying the plain- 
tiff, in addition to proof of the drawing of the bill, and of the 
absence of consideration, the plaintiff should prove payment of 
the bill by himself, or some special damage, or liability to costs, 
by reason of his acceptance.^ But here, also, the mere produc- 
tion of the bill by the plaintiff is not sufficient proof that he has 
paid it, unless he shows that it was once in circulation after it 
was accepted. And, generally, payment will not be presumed, 
from a receipt indorsed on the bill, unless it is shown to be in the 
handwriting of one entitled to demand payment.^ 

§ 171. ConslcLeration. In regard to the connderation^ two things 
are to be noted : firttj as to the parties between whom it may be 
impeached ; and, secondly y as to the burden of proof. And here it 
is, firsts to be observed, that the consideration of a bill or note, 
as well as of any other unsealed instrument of contract, is im- 
peachable by the immediate or original parties ; between whom, 
the general rule is, that the want of it may always be set up by 
the defendant, in bar of the action. Thus, it may be insisted on 
by the drawer against the payee; by the payee against his in- 
dorsee ; and by the acceptor against the drawer. The same rule 
is applied to all persons standing precisely in the situation of the 
original parties, and identified with them, in equity ; such as, 
their agents ; purchasers of paper dishonored by being overdue ; 
persons who have given no value for the bill; purchasers with 
notice that the instrument is void in the hands of the assignor,^ 
whether from fraud, or from want, failure, or illegality of con- 
sideration. These parties are regarded as taking the bill or note, 
subject to all the equities attaching to the particular bill in the 
hands of the holder ; but not to equities, which may exist between 
the parties, arising from other transactions.^ But on the other 

1 Chilton V, Whiffin et al., 8 WUs. 18 ; Bullock v. Lloyd, 2 C. & P. 119 ; Chitty 
k Holme on Bills, p. 647 (9th ed.). 

' Pfiel V. Yanhatenhurg, 2 Campb. 489 ; Chitty & Hulme on Bills, tibi supra. 
And see Scholey v. Walsby, 1 Peake s Cas. 26 ; PhiUips v. Warren, 14 M. k W. 879. 

* Bat if a promissory note or bill is available to the holder, and he transfers it to 
another, the want of consideration cannot be set up against the latter, though he had 
notice that it was given without consideration, before it came to his hands. Dudley «. 
Littlefield, 8 Shep. 418. 

« Story on Buls, § 187 ; Burrough v. Moss, 10 B. k C. 558 ; Hughes v. Laige, 2 
Barr, 108. In the United States, the defendant has in many instances oeen allowed to 
claim a set-off in such cases, founded on other transactions. See Bayley on Bills, pp. 
644-548, cases in Phillips k SewaU's notes, infra, § 200. In an action by an indorsee 
against a remote indorser, it is a good defence, that the defendant, at the time when he 
indorsed the biU, was so intoxicated and under the influence of liquor, and thereby so 



PAST IT.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 161 

hand, no defect or infirmily of consideration, either in the creation 
or in the transfer of a negotiable security, can be set up against a 
mere stranger to the transaction, such as a bona fide holder of the 
bill or note, who received it for a valuable consideration, at or 
liefore it became due, and without notice of any infirmity therein. 
The same rule will apply, though a present holder has such notice, 
if he derives his title to the bill from a prior bona fide holder for 
value. Every such holder of a negotiable instrument is entitled 
to recover upon it, notwithstanding any defect of title in the person 
from whom he derived it ; and even though he derived it from one 
who acquired it by fraud, or theft, or robbery .^ (a) 

§ 172. Borden of proof. Secondly^ as to the burden of proof 
it is to be observed, that bills of exchange enjoy tlie privilege, 
conceded to no unsealed instruments not negotiable, of being 
presumed to be founded upon a valid and valuable consideration. 
Hence, between the original parties, and, a fortiori^ between others 
who became bona fide holders, it is wholly unnecessary to establish, 
that the bill was given for such consideration ; the burden of proof 
resting upon the other party to establish the contrary, and to rebut 
the presumption of value, which the law raises for the protection 
of all negotiable paper.^ (V) The same principle applies to the 

deprived of the use of his reason, aa to be unable to understand the nature or effect 
of the indorsement ; provided the plaintiff, at the time of the indorsement, was aware 
of his being in that state. Gore v, Oibson, 18 M. & W. 628 ; 8. c. 9 Jur. 140. (e) 

1 story on Bills, § 187-194 ; Chitty k Hulme on Bills, pp. 68-^1 (6th ed.). 

* Story on Bills, 1 178 ; £mery v. Estes, 1 Bedingt. 155. 

(a) In Moore v. Hershey, 90 Pa. St. probably at least as favorable to the luna- 
196, the Court says that this rule as to tic as would be adopted by most courts, 
consideration does not apply to commercial putting, as it does, tne burden of proof on 
{laper made by lunatics, and that the true the plaintifF, of these three facts, 
rule is, that while the purchaser of a pro- (S) Haiger v, Worrall, 69 N. Y. 870. 
miasory note is not bound to inquire into A promissoi^ note is ^i^en for "value re- 
Mb consideration, he is affected by the ceived; " this is siguea by the maker, and 
atatus of the maker, as in the case of a is an admission on his part that value has 
married woman or a minor, and in the been received for it, which is a eood con- 
case of a lunatic, the holder of the note sideration. Its being producea by the 
may recover, provided he had no knowl- holder is proof that after being signed 
edge of the lunacy, and the note was ob- it was delivered to the promisee, and is 
tained without fraud and upon a proper therefore evidence of a contract, on good 
consideration. The rule in this case is consideration, between promisor and prom- 



(c) A contract entered into under such sideration, and before maturity, a promis- 

circ ums tances is voidable only. Matthews sory note given to one of the partners for 

V. Baxter, 28 L. T. N. s. 169. Intoxica- his accommodation, the firm cannot re- 

tion is no defence against an innocent cover thereon, as it is affected with notice 

holder. St. Bank v. McCoy, 69 Pa. St. of the want of consideration. Quinn v. 

204; Miller v. Finley, 26 Mich. 249. Fuller, 7 Cush. (Mass.) 224. 
Where a firm purchases for a good con- 

YOU IL 11 



162 LAW OP EVIDENCE. [PABT IV. 

consideration paid by each successive holder of the bill. But 
even in an action bj the indorsee against an original party to a 
bill, if it be shown, on the part of the defendant, that the bill was 
made under duress^ or that he was defrauded of it, or if a strong 
suspicion of fraud be raised, the plaintiff will then be required to 
show under what circumstances and for what value he became the 
holder.^ (a) It is, however, only in such cases, that this proof will 
be demanded of the holder; it will not be required, where the 
defendant shows nothing more than a mere absence or want of 
consideration on his part.^ (i) Nor will it suffice for the acceptor 

1 Chitty & Hulme on Bills, pp. 648, 649 r9th ed.); Duncan v, Scott, 1 Campb. 100; 
Bees V. Marq. of Headfoi-t, 2 Campb. 574 ; Heydon v. Thompson, 1 Ad. k M. 210; 
Whitaker v. Edmunds, I M. & Bob. 366, per Patteson, J. ; s. c. 1 Ad. k £1. 638; 
Heath v. Sansom, 2 B. & Ad. 291, as limited and explained by Patteson, J., in 1 M. 
k Bob. 367, and by Tindal, C. J., in 1 Bing. N. C. 267 ; Munroe v. Cooper, 6 Pick. 
412 ; Story on Bills, §f 198, 194 ; Musgrave v, Drake, 5 Ad. & El. N. 8. 185 ; Small 
V, Smith, 1 Denio, 583 ; Hanrey v. Tower, 15 Jur. 644. 

3 Ibid. ; Lowe v, Chifney, 1 Bing. S. C. 267 ; 8. c. 1 Scott, 95. 

isee, under the promisor's hand. But as ducing the note and proving the signa- 

between the original parties, such proof is tures, makes out AprimafcKie case. If the 

not oonclusiye. It is therefore prima defendant then establishes the fact that 

facie eyidence; that is, it is competent the note was fraudulently put into cir- 

evidence tending to prove a proposition of culation, and diverted from the use in- 

fact, and, if not rebutted or controlled by tended, and makes out a case of fraud 

other evidence, wiU stand as sufficient or duress, the burden of introducing 

proof of such proposition of fact. If, evidence to prove that he is a bona Jide 

then, on a trial of a suit on a note by the holder for value is then shifted on the 

promisee against the promisor, the signa- plaintiff. Nickerson v. Buger, 76 N. Y. 

turo is admitted or proved, and the plain- 279. This maj be done bv proving that 

tiff produces and reads his note for value the note was indorsed to him for value, 

received, he has ordinarily no occasion to before maturity, and this raises a presump- 

go further. He has the burden of proof to tion that he took the note in good faith 

show consideration; but he sustains that without notice of the fraud, for it is not 

burden by Ms prima facie evidence, which, likely liiat he would give full value for a 

if not rebutted, stands as conclusive evi- note which he knew or believed to be 

dence. But, in a suit between the ori^- fraudulent. This presumption of good 

nal parties, the consideration may be in- faith, however, may be rebutted by show^ 

quired into; and as the burden is on the ing that the plaintiff knew of the fraud 

plaintiff to prove a good consideratinn, if when he took the note. Mere proof of 

the whole evidence offered on both sides suspicious circumstances will not do this, 

leaves it in doubt whether there was a sood but if strong enough they may satisfy the 

consideration or not, the plaintiff fails to iury that he had actual knowledge. Kel- 

make out his case. In general, the proof log v. Curtis, 69 Me. 212; Farrellv. Lovett, 

of want or failure of consideration must 68 Me. 326. 

commence on the part of the defendant (b) Post^ § 639. The burden of proving 

after the production and proof of the note good faith is all the law imposes on the 

by the plaintiff, not because the defendant holder; that, is that he came by it honestly, 

has the burden, or the burden of proof Clarke v. Pease, 41 N. H. 414; Woroester 

has shifted, but because the plaintiff has County Bank v. D. & M. Bank, 10 Cush. 

offered prima facie proof sufficient to sus- 491 ; recognized in Wyer v. D. & M. Bank, 

tain the burden of proof on his part unless 11 Id. 53; Goodman v. Harvey, 4 Ad. 

it is rebutted and controlled by counter- k £1. 870, and 6 Nev. k Man. 872; Uther 

proof. Shaw, C. J., in Bumham v. Allen, v. Bich, 10 Ad. & EL 790 ; Arbouixk 

1 Gray (Mass.), 500. v. Anderson, 1 Ad. k El. N. S. 504; 

{a) The plaintiff in such cases, by pro- Hall v. Featherstone, 3 Hurlstone k Nor^ 



PABT IT.] BILLS OF EXCHANGE AND PBOHTSSOBT NOTES. 168 

to show, that the drawer procured all the indorsements to be made 
without consideration, in order that the action might be brought 
by any indorsee, under an agreement between the plaintiff and 

msn, 284. A note or check taken in pay- 194 ; Cline v. Guthrie, 42 Ind. 227; Wait 
toent of a pre-existing debt is taken bona v. Ponierov, 20 Mich. 426. See also Tay- 
Mde, Cume v. Miaa, 10 L. B. £z. 158 ; lor v. Atchison, 54 111. 196 ; Putnam «. 
Washburn v. Splater, 47 Vt. 278. Sullivan, 4 Mass. 45 ; Awde v. Dixon, 20 
But the holder of a bank-bill, proved L. J. Ex. 295 ; Calkins v. Whistler, 29 
to have been stolen, is not bound to show Iowa, 495. But signing a paper without 
faow he came b^ the bill, to enable him ■ reading it is negligpniw whicn deprives 
to recover upon it. The burden of proof the party of the defeuce of fraud as against 
is upon the defendant to show that the a h<ma fid^ holder. Chapman v. Rose, 56 
bolder took it under such circumstances N. Y. 187 ; Nebeker v. Catsinger, 48 Ind. 
that he has no claim upon it. Wyer v. 436. See also Abbott v. Bose, 62 Me. 194; 
Dorchester & M. Bank, 11 Cush. 58 ; Sol- Fenton v. Robinson, 6 N. Y. Sup. Ct 
omons V. Bank of England, 18 East, 185, (T. & C.) 427. Where there is an inten- 
n. ; King v. Milsom, 2 Campb. 5 ; De la tion to make and deliver a hote, the case 
Chaumette p. Bank of England, 2 Bam. is different, althoush the intention be in- 
k, Adolph. 885 ; l^omsiana Bank v. Bank duced by fraud. Burson v. Huntington, 
of U. S., 9 Martin, 898. "The law is 21 Mich. 415. So where a note is so care- 
well settled, that a party who takes nego- lessly drawn as to enable a third person, 
tiable paper, before due, for a valuable by filling in another line, to practise a 
consideration, without knowledge of any fraud, tlie drawer or maker, and not the 
defect of title, in good faith, can hold it innocent holder, must bear the loss. Gar- 
afiainst all the world. A suspicion that lurd v. Hadden, 67 Penn. St 82 ; Zim- 
there is a defect of title in .the holder, or merman v. Bote, 75 Penn. St. 188; Griggs 
a knowledse of circumstances that might v. Howe, 81 Barb. <N. Y.) 100 ; Van 
excite such suspicion in the mind of a Duzer v. Howe, 21 N. Y. 581 ; Yocum v. 
cautious person, or even gross negligence Smith, 68 111. 821. Contra, Holmes t>. 
at the time, will not defeat the title of the Trumper, 22 Mich. 427. But as the latter 
purchaser. That result can be produced was a case of alteration apparent to a 
only by bad faith, which implies guilty reasonablv careful drawer, it is fairly dis- 
knowledge or wilful ignorance, and the tinguishable from those cases where the 
Irarden of proof lies on the assiulant of the slteration is of such a character as to give 
title." Uotchkiss v. Nat. Sh. & Leath. no notice by its appearance. It has Men 
Bk., 21 Wall. (U. S.) 854; Murray v. Lai'd- held in several cases that, when a note is 
ner, 2 Id. 110 ; Raphael v. Bank of Eng- given with a memorandum attached that 
land, 17 C. B. 161; Comstock v. Hannah, it is payable only on a certain condition, 
76 111. 530 ; Goodman v. Simonds, 20 a bona Jtde holder of the note, the memo- 
How. (U. S. ) 843 i Seyb^l v, Nat Com. randum having been detached, cannot re* 
Bk., 54N. Y. 288; Wyerv. D. & M. Bk., cover. Benedict v. Cowden, 49 N. Y. 

II Cush. (Mass.) 58; Smith 9. Livingston, 896; Wait v. Pomeroy, 20 Mich. 425; 

III Ma.ss. 842; Goodman v. Harvey, 4 Jaqua v. Montgomery, 88 Ind. 36. But 
Ad. k £1. 870, overruling Gill v. Cubitt, is not the maker negligent, according to 
3 B. & C. 466 ; Clark v. Pease, 41 N. H. the cases cited supra ; and ought not he, 
414; Wait v. Chandler, 68 Me. 257; therefore, to bear the loss! See also 
Fbelan v. Moss, 67 Penn. St. 59 ; Lake v, Strough v. Gear, 48 Ind. 100. The maker 
Keed, 29 Iowa, 258 ; Bock Island Nat. of a note is not estopped, as against a 
Bk. «. Nelwn, Sup. Ct Iowa, and note, 8 bona fide holder, to impeach it as obtained 
Cen. L J. 6. See also ante, vol. I § 81, by fraud. AbboU v. Rose, 62 Me. 194. 
11. Contra, Gould v. Stevens, 43 Vt. 125; If the drawee of a check, in good faith 
and Sturges v. Met. Bk., 49 111. 220 ; and without negligence, pay a fraudulently 
Corby o. Weddle, 57 Mo. 452. If the altered check, even to a bona fide holder, 
signature be obtained by fraud, as to the he may recover the amount overpaid. The 
character of the paper itself, and without drawee is presumed to kuow whether the 
negligence on the part of the maker, who signature is genuine or not, but not the 
does not intend to sign a note, in contem- filling in of the check. Reddington v. 
plation of law it is not his note, any more Woods, 45 Cal. 406. The responsibility, 
than if it was forged, and there can there- however, of the drawee, who pays a foiiged 
fore he no bona fide holder of hia note, to check, for the genuineness of the drawer s 
sue or recover. Walker v, Ebert, 29 Wis. signature, is absolute only in favor of one 



164 LAW OP BVIDBNCB. [PABT IV. 

the drawer, to share the money when recovered ; ^ nor, that the 
bill was accepted in order to raise money for his own use, of which 
the payee had subsequently defrauded him.^ 

§ 173. Bame subjeot. The burden of proof is somewhat affected 
by the form of the %s9ue. Thus, in an action by the drawer against 
the acceptor of a bill, if the consideration of the acceptance is 
impeached under the general issue, as is ordinarily the course in 
the American courts, the burden of proof is on the acceptor. 
And so it is, where the plaintiff, in his replication, merely alleges 
that there was a valid consideration for the acceptance, without 
specifying what it was ; or, where he states the kind of consid- 
eration under a videlicet^ so as not to confine himself to precise 
proof of the allegation. But, where he chooses specially to allege 
the sort of consideration on which he relies, concluding with a 
verification, so that the defendant has an opportunity to traverse 
it, and does so, the burden of proof is on the plaintiff, precisely 
to maintain his replication.^ 

§ 174. Plaintiff most show breach of oontraot In the FOURTH 
PLACE, the plaintiff mu9t show a breach of contract^ by the defendant. 
And here it is to be observed, that the engagement of the defend- 
ant is either direct and absolute, or conditional. In the former 
case, as, in an action against the maker of a promissory note, or, 
against the acceptor of a bill, upon a general acceptance to pay the 
bill according to its tenor, it is not necessary for the plaintiff to 
prove B, presentment for payment^ it being not essential to his right 
to recover.* Where the bill is drawn generally, but the acceptance 
is made payable at a particular place^ it has been much questioned 
whether it was necessary for the holder to prove a presentment 
for payment at the place named in the acceptance, in order to 

I Whitaker v. Edmunds, 1 M. & Rob. 367. 

s Jacob V. Hnngate, 1 M. At Rob. 445. See further, Cbitty k Hnlme on BiUs, 649^ 
651 (9th ed.). 

* Batley v, Catterall, 1 M. & Rob. 879, and n. (a). See also Lacey v. Forrester, 
2 C. M. & R. 59 ; Chitty k Hulme on Bills, pp. 648, 649 (9th ed.) ; anU, Tol. i. 
§§58-60. 

^ In Maine^ if a promissory note is payable at a place certain upon demand, or upon 
demand after a certain day, the plaintiff is not entitled to recover, unless he proves 
a demand made at the place. Stat. 1846, c. 218. 

who IB tree from fraud or negligence. Nat Grand Chute v. Winegar, 16 Wall. (IT. S.) 
6k. of N. A. V. Bangs, 106 Mass. 441. 855. But if he purchases them when over- 
The bona fide holder for value of municipal due, he cannot hold against the true owner* 



bonds may recover, notwithstandins they from whom they were ^stolen. Vermilye 
were irregularly or fraudulently issued, w. Adams Exp. Co., 



21 Wall. 188. 



PABT IT.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 165 

show the acceptor's default. In England, it was formerly held, 
that, in such case, a presentment at the place must be shown ; ^ 
but subsequently, by statute,^ such acceptance has been declared 
to be a general acceptance, unless restrictive words are added, 
making the bill payable at that place alone. But in the Supreme 
Court of the United States, it is held, that as between the holder 
and the acceptor, no demand at the place named in the acceptance 
is necessary, to entitle the plaintiff to recover ; though the want 
of such demand may affect the amount of damages and interest; 
but that to charge the drawer or indorsers of the bill, a demand 
at the place, at the maturity of the bill, is indispensable.^ 

§ 175. Same subjeot. Condition. But in the latter case, as in 
actions against the drawer or indorser of a bill, or the indorser of 
a note, the undertaking of the defendant being conditional^ namely, 
to pay in case the party primarily liable does not, the default of 
such party must be proved, or the proof be dispensed with by the 
introduction of other evidence. The receiver of a bill or note 
is understood thereby to contract with every other party, who 
would be entitled to bring an action on paying it, that he will pre- 
sent in proper time to the drawee for acceptance, when acceptance 
is necessary, and to the acceptor for payment when the bill has 
arrived at its maturity and is payable ; to allow no extra time for 
payment, to the acceptor ; and to give notice in a reasonable time, 
and without delay, to every such person, of a failure in the attempt 
to procure a proper acceptance or payment. Any default or ne- 
glect in any of these respects will discharge every such person from 
responsibility on account of a non-acceptance of a non-payment ; 
and will make it operate, generally, as a satisfaction of any debt, 
demand, or value for which it was given.* (a) 

§ 176. Bame subjeot. Presentment Thus, in an action by the 

1 Rowe V. Young, 8 B. At C. 165. And see Picquet v, Curtis, 1 Sumn. 478. 

« 1 & 2 Geo. IV. c. 78. 

• Wallace v. McConnell, 18 Pet. 186 ; Story on Bills, § 289; 8 Kent Comm. 99, n. 
(5th ed.). And see ivfra^ §§ 180 a, 180 6. 

« Stonr on Bills, §j 112, 227 ; Bayley on Bills, pp. 217, 286 (5tli ed.). In Texas, 
tlie liability of drawers and indorsers may be fixed without notice, by the institution 
of proceedings, within a limited time, sgainst the acceptor, if the bill hss been 
accepted, or against the drawer, if acceptance is refused. Hartley's Dig. art. 2528- 
2581. 

(a) Howard Bank v. Carson, 50 Md. reasonable time, and immediate notice of 

18. If a person indorses a promissory the non-payment. Tyler v. Young, 80 

note after it is due, he is entitled to have Penn. St. 148. 
m demand made on the maker within a 



166 LAW OP BVIDBNCB. [PABT IT. 

payee of a bill, or the indorsee of a bill or note, against the drawer 
or indorsety it is necessary to prove a presentment to the drawee 
for payment. If the bill is payable at sight, or in so many days 
after sight, or after demand, or upon any other contingency, a 
presentment, in order to fix the period of payment, must be made, 
and of course be proved. But if the bill is payable on demand, or 
in so many days after date, or the like, it need not be presented 
merely for acceptance ; but if it is so presented, and is not ac- 
cepted, the holder must give notice of the dishonor in the same 
manner as if the bill were payable at sight.^ The presentment for 
acceptance must be shown to have been made by the holder or his 
agent, if acceptance was refused ; but if the bill was accepted on 
presentment by a stranger, it is available to the holder. If it is 
drawn on partners, a presentment to one of them is sufiicient ; 
but if drawn on several persons not partners, it has been said, that 
it should be presented to each; but the better opinion seems 
otherwise, for if one of the drawees should refuse to accept, the 
holder would not be bound to take the acceptance of the others 
alone.^ It is not necessary to prove that the presentment was 
made by the person named in the declaration, the material fact 
being the presentment alone, by some proper person.^ Nor is it 
necessary for the plaintiff, in an action against the indorser, for 
non-payment of an accepted bill, to show any demand of or in- 
quiry after the drawer.* 

§ 177. Presentment not excused by death, &o. Presentment of 
the bill for acceptance is not excused by the drawee's death, bank- 
ruptcy, insolvency, or absconding. If he is dead, it should be 
presented to his personal representatives, if any, or at his last 
domicile ; and if he has absconded, it should be presented at his 
last domicile or place of business.^ 

§ 178. Time of presentment Whenever it is essential to prove 
a presentment for acceptance or a demand of payment, it must 
appear to have been made at the proper time. No drawee can be 
required to accept a bill on any day which is set apart by th6 laws or 

1 story on Bills, §§ 112, 227, 228 ; Chitty & Hulme on Bills, pp. 653, 654 (9tli ed.). 

s Story on Bills, § 229; Chitty k Hulme on Bills, pp. 272-274 (9th ed.). 

' Boehm v. CampbeU, 1 Grow, 65; 8. o. 3 Moore, 15. 

^ Heylin v. Adamson, 2 Burr. 669 ; Bromley v, FiBzier, 1 Stra. 441 ; Chitty & 
Hulme on Bills, p. 653 (9th ed.). 

* Story on BUls, § 260; Chitty & Hulme on Bills, pp. 279, 280 (9th ed.); Orotoa 
V, Dalheim, 6 GreenL 476; Oreely v. Hunt, 8 ShepL 455; Weems v. Fanners* Bank. 
15 Md. 281. 



PABT IT.] BILLS OF EXCHANGE AND PROMISSOBT NOTES. 167 

obseirances or usages of the country or place, for religious or other 
purposes, and is not deemed a day for the transaction of secular bus- 
iness; such as a Sunday^ Christmas Day^ or a day appointed by pub- 
lic authority for a solemn fast or thanksgiving j or any other general 
holiday; or a Saturday j where the drawee is a Jew.^ And in all 
cases, the presentment must have been made at a reasonable hour 
of the day. If made at the place of business, it must be made 
within the usual hours of business, or, at farthest, while some 
person is there who has authority to receive and answer the pre- 
sentment (a) If made at the dwelling-house of the drawee, it 
may be at any seasonable hour while the family are up.^ (J>) 

§ 179. Same snbjeot. The presentment of a promissory hote for 
payment should be made at its maturity, and not before, nor gen- 

1 Storj on Bills, §§ 288, 840. 

s Story on Bills, § 236; Chitty k Hulme on Bills, pp. 454, 465, 654 (9th ed.) ; Par- 
ker 9. Gordon, 7 East, 885; Wilkins v. Jadis, 2 B. & Ad. 155, 188; Garnet v. Wood- 
cock, 6 M. & S. 44. 

(a) The Court will take judicial notice retired for the night, and it was held a 

of the calendar, so as to see that present- sufficient demand to chai^ the indorser. 

ment on Dec. 14 of a note due Dec. 15, Ibid. Notice issued by a bank in which 

was ffood^ because Dec. 15 in that year a note is placed for collection, to the maker 

was Sundiay. fieed v. Wilson, 41 Is. J. of the note, a day or two before the ma- 

L. 29. turity of the note, that the note would be 

(6) " No fixed rule can be established payable on a certain day named, bein^ the 

by which to determine the hour beyond true day, and requesting him to pay it^ is 

which the demand of payment, when made held in Massachusetts sufficient demand, 

at the maker's residence, vdll be unreason- Warren Bank v. Parker, 8 Gray (Mass.), 221. 

able and insufficient to charge an indorser. A note payable at a particular bank, where 

Generally, however, it should be made at the maker had no funds, was delivered 

such an hour, that, haying regard to the after business hours on the last day of 

habits and usages of the community where grace, to the teller, who was also a notary, 

the maker resides, he may be reasonably at his dwelling-house, for the purpose of 

expected to be in a condition to attend to demanding payment. He went to the 

oroinary business. And whether the pre- bank, and, oeing unable to obtain en- 

sentment is within a reasonable time can- trance, demanded payment of himself at 

not be made to depend on the private and the bank door. It was held a sufficient 

peculiar habits of the maker of a note, not presentment to charge an indorser. Bank 

blown to the holder, but it must be deter- of Syracuse «. Hollister, 17 N. Y. 46. In 

mined by a consideration of the circum- Merchants* Bank v. Elderkin, 25 N. Y. 

stances which, in ordinary cases, would 178, it is held to be a sufficient demand of 

render it reasonable or otherwise. Bar- a note that the same was left for collection 

clay V. Bailey, 2 Campb. 527; Triggs v. at the bank where it was payable on the 

Kewnham, 10 Moore, 249; 1 Car. & PTeSl; last day of grace, and, the maker having 

Cayuga Co. Bank v. Hunt, 2 Hill (N. Y.), no funds, it was returned to the holder 

635." By Bigelow, J., in Famsworth v, before the expiration of the last business 

Allen, 4 Gray (Mass.), 454. A promissory hour. A demand after banking hours will 

note dated at Boston, but expressing no fix the indorser, although at his reouest 

place of payment, and held in Boston by a the maker, several times during banking 

bank forcoUection, falling due at the end of hours, inquired for the note. It might 

August, was presented for jMyment at nine have been otherwise if the maker had 

o'c&ck in the erening of the last day of been prepared to pay, and waited till the 

grace at the house of uie maker, ten miles expiration of banking hours. Salt Springs 

from Boston, after he and his family had Nat. Bk. v. Burton, 58 N. Y. 430. 



168 LAW OP EVIDENCE. [PABT IV. 

erally af ter.^ But where the maker lived two hundred miles from 
the holder, a demand made six days afterwards has been held 
sufficient.^ If the note is payable at a certain day after eighty the 
payment of interest, or of part of the principal, duly indorsed 
thereon, is prima fade evidence that it was presented for sight 
before the time of such payment, and that it became due on the 
day when the payment was made.^ If it is payable on demand, or 
is indorsed after it is overdue, payment should be demanded within 
a reasonable time, in order to charge the indorser> A banker's 
check may be presented on the next day after the date, this being 
considered a reasonable time.^ 

§ 180. Place of presentment. It must also appear, that the pre- 
sentment was made at the proper place ; and this, in general, is the 
town or municipality of the domicile of the drawee. If he dwells 
in one place, and has his place of business in another, whether it 
be in the same town, or in another town, the bill may be presented 
for acceptance at either place, at the option of the holder ; and 
this, even though a particular place be designated as the place 
of payment.^ If the bill is addressed to the drawee at a place 
where he never lived, or if he has removed to another place, the 
presentment should be at the place of his actual domicile, if by 
diligent inquiries it can be ascertained ; and if it cannot be ascer- 
tained, or if the drawee has absconded, the bill may be treated as 
dishonored.^ (a) 

1 Henry v. Jones, 8 Mass. 453; Farnnm v. Fowie, 12 Mass. 88; Woodbridge v. 
Brigbam, Id. 403; Barker v. Parker, 6 Pick. 80, 81. 

^ Freeman v. Boynton, 7 Mass. 483. ' Way v. Bassett, 5 Hare, 55. 

* Chitty & Hulme on Bills, pp. 379-886 (9th ed.); Colt v. Barnard, 18 Pick. 260. 
Seven days after the date has Leen held sufficient, Seaver v. Lincoln, 21 Pick. 267; 
and eight months an unreasonable delay. Field v. Nickerson, 18 Mass. 131 ; Thayer v. 
Brackett, 12 Mass. 450. See also Sylvester v. Crapo, 15 Pick. 92; Thompson v. Hale, 
5 Pick. 259; Martin v. Winslow, 2 Mason, 241. See infra, § 199, n., as to the time 
when a note payable on demand is to be considered as dishonored. 



« Chitty & Hulme on Bills, p. 385 (9th ed.). 
• Story on Bills, § 286; Chitty & Hi 



[ulme on Bills, pp. 865, 366 (9th ed.); tupra^ 
f 174. 

7 Story on BiUs, § 325. The place at which a promissory note is dated is prima 
facie evidence of the residence of the maker at that place; but it is no indication of 
the place of payment, nor does it authorize a demand there for the purpose of charge 
ing an indorser. If tiie maker of a note has absconded; or, being a seaman and with- 
out a domicile in the State, is absent on a voyage; and also, if he has no known 

(a) Where it appeared that the notary left official notice of the default, addressed 

"went to various places, makinff diligent to the several indorsers, at their respective 

inquiry of divers persons for the prom- places of business;" this showed tnatthe 

isor, but could not find him, nor anv one notary had not used such reasonable dili- 

knowing him, nor any one with funds for gence to ascertain the residence of the 

the payment of the note, and thereupon maker as would excuse the want of legal 



PABT lY.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 169 

§ 180 a. Same subjeot Where the biU or note is made paya- 
ble at a particular plaee^ as, at a bank, or a banker's, the question, 
whether a presentment for payment must be made at that place, 
in order to entitle the holder to recover, has been held diversely 
in England and in the United States. In a recent work of 
the highest merit,^ the law in the two countries is thus stated : 
^ According to the commercial law of England, if a promissory 
note is made payable at any particular place, as, for example, at 
a bank, or a banker's, a presentment should be there made for 
payment.^ Before the statute of 1 & 2 Geo. IV. c. 78, a bill of 
exchange, as well as a promissory note, payable at a bank or 
banker's, was required to be presented at the bank or banker's 
for payment, before the acceptor or maker was botmd to pay the 
same.^ That statute changed the antecedent responsibility of the 

residence or place of basiDess at whicli a demand can be made, — a presentment for 
payment is excused, and the indorser will be liable, on receiving notice of the facts 
constituting the excuse. [See § 195 infra and notes.] So, if the maker, after mak- 
ing the note, transfers his domicile permanently to another State, the holder need not 
fouow him, but a demand at his former place of residence will suffice. If the note is 
made and dated at one place, the maker naving and continuing to have a known resi- 
dence at another, the demand must be made at the latter place, and not at the former. 
Taylor v. Snyder, 8 Den. 145. And see Gilmore v. Spies, 1 Barb. 158. To enable the 
holder to chaiyie an indorser, without a demand on tne maker, the facts, excusing the 
demand, must be distinctly proved. Taylor v. Snyder, supra, 

1 Story on Promissory Notes, §§ 227, 228. 

< Story on Bills, § 289, and n.; Id. § 355; Chitty on Bilk, c 7, pp. 821, 822 (8th 



ed. ); Id. c. 9, pp. 391, 892; Bayley on Bills, c. 1, § 9, pp. 29, 80 (5th ed. ); Id. c. 9, § 1, 
pp. 199, 200; la. c. 7, § 1, pp. 219-222; 1 Bell, Comm. b. 8, c. 
ea.); Gibb v. Mather, 2 Cromp. k JeTT. 254; 8. c. 8 Bing. 214. 



notice to him of the dishonor of the note, residence of the acceptor, in the same 

it appearing that he knew the places of city. Wiseman v. Chiapella, 23 How. 368. 

bonnesa of the indorsers, and it not ap- When the maker of a note has no place of 

pearing that he inquired of them as to toe business, and the note does not specify any 

residence of the maker. Porter v. Judson, place of payment, it is payable at the house 

1 Gray (Mass.), 175 ; Granite Bank v. of the maker, and presentment at a place 

Avers, 16 Pick. (Mass.) 392. See, as to the which had formerly been occupied as a 

effect of failure on the part of the notary place of business by the maker, without 

to inquire of the other parties to the note mquiry as to his place of residence, does 

(the maker and second indorser), Peirce not show such diligent search for the 

V. Pendar, 5 Met (Mass.) 352 ; as to suffi- maker and failure to find him as would 

ciently diligent inquiry of parties and excuse a want of presentment of the 

others, Phipps v. Chase, 6 Met. (Mass.) note and demand of payment. Talbot t7. 

491 ; and as to the duty of the holder of a Bank of Commonwealth, 129 Mass. 67. 

note to inform the notary or bank officer. But if a bill is accepted payable at a 

of whom to make inquiry, and where the particular place, if the notanr makes rea- 

persons to be inquired of may be found, sonable ana diligent inauiiy for the accep- 

w heeler v, Fielo, 6 Met (Mass.) 290. tors in that place, or tneir place of busi- 

Where a notary certified that he went uess or residence, and cannot find either, 

•eversi times to the place of business of and tiien makes demand during business 

the acceptor and found the doors closed, hours at a place or places frequented by 

and no one there to answer his demand them when m the city, such presentment 

for payment, he cannot be chaiged with is sufficient. Cox v, X^ational Bank, 100 

negbut for not presenting the bill, at the U. S. 704. 



170 LAW OP EYIDEKCE. [PABT IV. 

acceptor of a bill of exchange, bj proyiding that an acceptance, 
payable at a banker's or other specified place, without adding 
the words, ^ and not otherwise or elsewhere,' should be deemed 
a general acceptance of the bill to all intents and purposes, so 
that no presentment or demand of payment at such banker's or 
other specified place was thereafter necessary to be made, in 
order to charge the acceptor.^ But the statute did not touch the 
rights of the drawers or indorsers of any such bill, but left them 
to be gOTcrned by the antecedent general law. Hence, so far as 
the drawer and indorsers are concerned, a due presentment and 
demand of payment is still necessary to be made at the banker's, 
or other specified place, in order to found any right of action 
against them.^ The statute does not comprehend promissory 
notes payable at a banker's or other specified place ; and therefore 
it is indispensable, in order to charge the maker or indorsers of 
a promissory note, that a due presentment and demand of pay- 
ment should be made at the banker's or other specified place. If 
a due presentment is not so made, the indorsers are discharged 
from all liability.' The maker, indeed, is not so discharged ; but 
he is in no default, and is under no obligation to pay the note until 
presentment and demand has been actually made at the banker's 
or other specified place ;^ and if he has suffered any loss or injury 
by the want of a due presentment, to the extent of the loss or 
injury he will be discharged as against the holder." ^ 

§ 180 (. Same snbjeot. ^^ In America a doctrine somewhat 
different prevails, if not universally, at least to a great extent. 
It was probably in the first instance adopted from the supposed 
tendency of the English authorities to the same result ; and there 

1 Ibid.; Chitty on Bills, c. 4, pp. 172-174 (Sth cd.); Id. c. 7, pp. 321-328; Id c. 
9, pp. 891, 898, 896, 897; Bavley on BUIb, c. 1, § 9, p. 29 (5th ed.); Id. c. 6, % 1, pp. 
199-201; Gibb «. Mather, 2 Cromp. & Jery. 264; s. c. 8 Bing. 214; Fayle v. Bird, 6 
Bam. k Creasw. 681; 8 Kent, Comm. Lect. 44, p. 97, and n. (e), and Id. p. 99, n. (6), 
(6th ed.); StoTy on Bills, § 865; Thompson on BiUa, c. 6, § 2, pp. 420-428 (2d ed.). 

> Gibb v. Mather, 2 Cromp. & Jery. 254; 8. c. 8 Bing. 214; Ambrose «. Hopwood, 
2 Taunt. 61. This whole sabject was very much discussed in the House of Lords in 
the case of Rowe v. Young, 2 Brod. k Bing. 166; s. c. 2 Bligh, 891. See also Gibb 
V. Mather, suprtu In In£ana, the Knglisn doctrine is adopted. Palmer v. Hughes, 
4 Blackf. 329. 

s Bayley on Bills, o. 7, § 1, pp. 219-222 (6th ed.>; Chitty on Bills, c 9, pp. 
896, 897 (Sth ed.); Sanderson v. Bowes, 14 East, 600; Roche v. Campbell, 8 Campk 
247; Gibb v. Mather, 2 Cromp. & Jenr. 264; s. c. 8 Bing. 214; Dickinson v. Bowes, 
16 East, 110; Howe v. Bowes, 16 East, 112; s. o. in error, 5 Taunt. 80; Trecothick v. 
Edwin, 1 Stark. 468; Emblem v. Dartnell, 12 Mees. k Wels. 880; Yander Donckt «. 
Thelusson, 8 M. G. & S. 812. 

« Chitty on Bills, o. 6, p. 174 (Sth ed.); Turner v, Hayden, 4 Bam. ft Crsssw. 1. 

^ Rhodes v, Genl^ 6 Bam. & Aid. 244; Turner v, Hayden, 4 Bam. & Cressw. 1. 



PABT IT.] BILLS OF EXCHANGE AND PBOMISSOBY NOTES. 171 

certainly was much conflict in the authorities, until the doctrine 
was put at rest by the final decision in the House of Lords, — 
a decision which seems founded upon the most solid principles, 
and to be supported by the most enlarged public policy, as to the 
rights and duties of parties. The received doctrine in America 
seems to be this, that as to the acceptor of a bill of exchange, 
and the maker of a promissory note, payable at a bank, or other 
specified place, the same rule applies, — that is, that no presentment 
or demand of payment need be made at the specified place, on 
the day when the bill or note becomes due, or afterwards, in order 
to maintain a suit against the acceptor, or maker ; and of course, 
that there need be no averment in the declaration in any suit 
brought thereon, or any proof at the trial, of any such present- 
ment or demand. But that the omission or neglect is a matter 
of defence on the part of the acceptor or maker. If the acceptor 
or maker had funds at the appointed place, at the time, to pay 
the bill or note, and it was not duly presented, he will, in the 
suit, be exonerated, not, indeed, from the payment of the principal 
sum, but from the payment of all damages and costs in that suit. 
If by such omission or neglect of presentment and demand he has 
sustained any loss or injury, as if the bill or note were payable 
at a bank, and the acceptor or maker had funds there at the time, 
which have been lost by the failure of the bank, then, and in such 
case, the acceptor or maker will be exonerated from liability to 
the extent of the loss or injury sust^med." ^ (a) 

1 story on Promisaory Notes, §§ 227, 228; Wallace v, McConnell, 18 Pet 86. "The 
ground/' says Mr. Justice Story, ''upon which the American doctrine is placed is, that 
the acceptor or maker is the promissory debtor, and the debt is not as to him dis- 
chaiged oy the omission or neglect to demand payment, when the debt became due, at 
the place where it was payable. Assuming this to be true, it by no means follows, 
that the acceptor or maker is in default, until a demand of payment has been made 
at the place of payment; for the terms of his contract import an express condition, 
that he will pay upon due presentment, at that place, and not that he will pay upon 
demand elsewhere; and the omission or neglect of duty, on the part of the holder, to 
make presentment at that place, ought not to change the nature or character of the ob- 
ligations of the acceptor or maker. Now, the ri^ht to bring an action presupposes a 
defiEUilt on the part ot the acceptor or maker; and it may, after all, make a great differ- 
ence to him, not only in point of convenience, but in point of loss by exchange, as 
well aa of expense, whether, if he agrees to pay the money in Mobile, or in New Or- 
leans, he may be required, without any default on his own part, notwithstanding he 
has funds there to pay the same money in New York or in Boston. He may well say, 
Non in hoe foedera venV* Story on Promissory Notes, § 229; 8 Kent, Comm. 97, n. 
(«); Id. 99, n. (6). " The learned commentator," he says, "holds the £nglish rule to 
be the true one, and adds: 'This is the plain sense of the contract, and the words, 
"accepted, payable at a given place," are equivalent to an exclusion of a demand else- 
fa) Wallace v. McConnell, 18 Peters (N. Y.) 188; Wolcott v. Van Santvoord, 
(U. 8.), 186, 150; Foden v. Sharp, 4 John. 17 Id. 248; HUls v. Place, 48 N. Y. 620. 



172 LAW OP EVIDENCE. [PABT IV, 

§ 181. Time of presentment. Where the bill is not made payable 
in 80 many days after sight, it is sufficient to prove a presentment 
for payment at the maturity of the bill, and a refusal of payment. 
And it suffices to show a presentment for acceptance, and a 
refusal to accept at any time previous to the maturity of the bill ; 
for, upon its dishonor, the drawer becomes liable immediately.^ 
It also suffices to show, that the drawee refused to accept accord- 
ing to the tenor of the bill, notwithstanding the defendant should 
offer to prove that the drawee offered a different acceptance, 
equally beneficial to the holder.^ But the plaintiff must, in all 
cases, show, that the refusal proceeded from the drawee : a dec- 
laration by some unauthorized person, that the bill would not 
be accepted, is not sufficient.^ 

§ 182. Presentment and notioe, how proved. Presentment for 

payment, as well as notice of dishonor, may be proved by entries 
in the books of a deceased notary, clerk, messenger of a bank, or 
other person, whose duty or ordinary course of business it was 
to make such entries.^ (a) 

where.' Story on Bills, § 356. See also North Bank «. Abbot, 13 Pick. 465; Pay- 
son V. Whitcomb, 15 Pick. 212; Church v. Clark, 21 Pick. 810; Carley v, Vance, 17 
Mass. 389; Ruggles v. Patten, 8 Mass. 480; Mellon v. Croghan, 15 Martin, 423; Smith 
V, Robinson, 2 Miller (La.), 405; Palmer v. Hughes, 1 Blackf. 328; Gale v. Kemper, 10 
La. 208; Warren v, Allnut, 12 La. 454; Thompson v. Cook, 2 McLean, 125; Ogden v. 
Dobbin, 2 Hall (N. Y.), 112; Picjiuet v. Curtis, 1 Sumner, 478." See also Story on 
Bills, p. 263, n. (2). In Maine, in an action npon a note payable on demand at a 
place certain, or on demand at or after a specified time, at a place certain, the plaintiff 
IS required to prove a demand at the place, before suit. Btat. 1846, c. 21 8. In Geor- 
ma, it has been held, that, in the case of hank-notes made payable at a place certain, 
tne hank is entitled to a pi*esentment at the place, before it is liable to a suit upon the 
notes; this case constituting an exception, on grounds of public policy and conve- 
nience, from the general rule in regard to private bills and notes. Dougherty v. The 
Western Bank of Georgia, 1 Am. Law Reg. 689. 

1 Chitty & Hulme on Bills, p. 654 (9th ed.); Ballmgalls v. Gloster, 3 East, 481. 

> Chitty & Hulme on Bills, pp. 654, 655 (9th ed.); Boehm v. Garcias, 1 Campb. 
425, n. 

* Cheek v. Roper, 5 Esp. 175. 

* See ante, vol. i. § 116. In New Jersey, the notary is bound to keep a record of 
his acts, in regard to jirotested biUs of exchange or promissory notes ; and in case 
of his death or absence in parts unknown, the record is made competent evidence of 
the matters therein contained. Rev. Stat 1846, tit. 29, c. 1, §§ 7-9. 

In Pennsylvania, the want of demand and notice is no defence, unless the places of 
demand and of notice, or the names and residences of the parties thereto, are dustinctly 
set forth on the bill or note. And if such names and places are not so set forth, the 
bills and notes are deemed payable and protestable at the place where thev are dated ; 
or if without place of date, then at the place where they are deposited or neld for col- 
lection ; and drafts on third persons are deemed acceptable, payable, and protestable at 
the place where they are addressed to the drawee ; and, in all such cases, demand of 

(a) The letters of a deceased agent of Africa, on the ground of commercial 

were admitted as evidence of a demand, necessity. Greenwood v. Cortifl, 6 Maas. 

made upon a debtor of his principal, the 858. 
debtor being an inhabitant of the coast 



PART lY.] BILLS OF EXCHANGE AND PBOMISSOBY NOTES. 173 

§ 183. Foreign bills. Protest. In an action agairut the drawer 
or indorser of a foreign bill (and even of an inland bill, if a pro- 
test is alleged), the plaintiff must prove, beside the presentment 
and notice of dishonor, a protect for non-acceptance, or non-pay- 
ment.^ The proper evidence of the protest is the production of 
the notarial act itself ; ^ and if this was made abroad, the seal is 
a sufficient authentication of the act, without further proof ; ^ but 
it is said, that if the protest was made within the jurisdiction, it 
must be proved by the notary who made it, anld by the attesting 
witness, if any.* (a) 

§ 184. Ezotise for want of protest But the want of protest is 
excused by proof, that the defendant requested that, in case of 
the dishonor of the bill, no protest should be made ; or, that the 
defendant, being the drawer, had no funds in the drawee's hands, 
or had no right to draw the bill ; or, that the protest was prevented 
by inevitable casualty, or by superior force.* So, if the defendant 
has admitted his liability, by a partial payment, or a promise to 
pay, a protest need not be proved.® 

tcceptance, protest, and notice of non-acceptance may be made and given before matu- 
rity of the bill ; and demand of payment, protest, and notice of non-payment may be 
made and given at any time after maturity of the bill, and before suit. Dunlop, Dig. 
c. 894. §§ 7-9. 

^ Story on Bills, ^ 278, 281 : Chitty & Hulme on Bills, pp. 446, 666 (9th ed.). 
Protest of an inland mU is not necessary. Ibid. ; Young v. Bryan, 6 Wheat. 146. 
Nor is it necesssary to senre a copy of the protest with the notice of the dishonor of a 
bill Cowperthwaite v. Sheffield, 1 Sandf. S. C. 416. 

3 Lenox v, Leverett, 10 Mass. 1 ; Chitty & Hulme on Bills, pp. 446, 666 (9th ed.). 

> Towusley v. Sumrall, 2 Peters, 170 ; Halliday v. McDou^^, 20 Wend. 86; Graf- 
ton Bank v. Moore, 14 N. H. 142. The United States are, in this respect, foreign to 
each other. Williams v. Putnam, 14 N. H. 640. 

* Chesmer v. Noyes, 4 Campb. 129 ; Marin v. Palmer, 6 C. ft P. 466. In some of 
the United States, the eertifieaU of the notary, under his hand and official seal, is, by 
statute, made competent evidence, prima facie, of the matters by him transacted, in 
relation to the presentment and dishonor of the bill, and of notice thereof to the par- 
ties liable. (6) LL. New York, 1888, c. 271, § 8 ; Smith v. McManus, 7 Yei^ 477 ; 
LL. Mississippi, 1883, c. 70 ; 2 Kent, Comm. 98, n. ; Rev. LL. Maine, c. 44, S 12 ; 
Beckwith v. St Croix Man. Co., 10 Shepl. 284. See also Clark v. Bigelow, 4 ShepL 
246; Wan-en v. Warren, Id. 269. Connecticut, Key. Stat. 1849, tit. 1, § 128 ; Texas, 
Hartley, Dig. art. 2682, Stat. March 20, 1848, § 6. 

ft Story on BilK f§ 276, 280 ; Chitty & Hulme on Bills, p. 462 [post, § 196]. 

^ Gibbon v, Co^on, 1 Campb. 188 ; Taylor v. Jones, Id. 106 ; Chitty & Hulme on 
BplB, pp. 466, 666 (9th ed. ) ; Campbell v, Webster, 9 Jur. 992. 

(a) The |>rotest of a promissory note, ney-at-law, since deceased, it not appearing 

duly authenticated by the signature and that such acts were done in the discharge 

official seal of a notary-public, and found of a duty, and in the regular course of 

among his papera after his death, is com- business. Bradbury v. Bridges, 38 Me. 

petent secondary evidence of the acts of the 846. It is allowable to permit a notary to 

notary stated therein, respecting present- state his usual course of proceeding and 

ment, demand, and notice. Porter v. Jud- his customary habits of business. Union 

son, 1 Gray (Mass. ), 176. But such proof Bank v. Stone, 60 Me. 601. 
cannot be made by the affidayit of an attor- (b) Mass. Pub. Stat. c. 77, } 22. . 



174 LAW OF EVIDENCE. [PABT IT. 

§ 185. Inland blUo. When protest neoeaeary. In regard to 
inland bUhy a protest is not in general necessary to be proved, 
unless it is made so by the local municipal law.^ 

§ 186. Notloe of dishonor. In an action against the drawer 
of a bill, or the indorser of a bill or note, it is also necessary for 
the plaintiff to prove, that the defendant had dtie notice of the 
dishonor of the bill or note, (a) To constitute a suflBcient notice, 
it must contain such a description of the bill or note as will serve 
to identify it, to the understanding of the party addressed ; and 
must state in substance, or by natural implication, that it has been 
presented for acceptance or payment, as the case may be, and has 
been dishonored ; and, where a protest is by law or usage required, 
that it has been protested.* And if the notice proceeded, as it now 
seems it may in some cases, from a person who was not at that 
time the. holder of the bill, it must clearly intimate that the party 
addressed is looked to for payment.* But if it proceeded from the 
holder, the American courts do not require any foimal declaration 
to that effect, it being the natural inference from the nature of the 
notice.* It must appear that the notice was given within a reason- 

1 story on Bilk, fi 281. 

> See Story on BilU, §§ 301, 890; Stor^ on Promissory Notes, §§ 348-354. Notice 
to the indorser of a foreign bill, that the bill, desciibing it, has been protested for non- 

Sayment, and that the holder looks to him for payment thereof, is sufficient notice of 
ishonor ; the term protested, when thus used, implving that payment had been de> 
manded and refused. Spies v. Newbury, 2 Doug. (Mich.) 425. So, where the notice 
merely stated that the bul was due and unpaid, requesting immediate payment of the 
amount ; adding thus, — "Amount of bill, £98 IBs., noting 68.;" it was held, that 
tlie word "noting" implied presentment, and non-payment, and rendered the notice 
sufficient. Annstrong v. Christiani, 17 Law Jour. C. P. 181; 5 M. G. & S. 687. See, 
for other examples, Bromage v. Vaughan, 9 Ad. k £1. M. s. 608 ; Chard v. Fox, 13 
Jur. 960 ; Gaunt v. Thompson, Id. 495 ; D'Wolf v. Murray, 2 Sandf. S. C. 166. 
« East V. Smith, 11 Jur. 412 ; 4 DowL k L. 744. 
* Bank of United States v, Cameal, 2 Pet 543, 553 ; Story on Promissory Notes, 

(a) The insolvency of the drawer or the executor, there being no proof that 

indorser does not excuse a failure to notify such notice was received by the executor, 

him. Jjowell, J., In re Battey, 16 Nat. and the holder not having used due dili- 

Bk. Reg. 397, says : " It was decided by gence to learn the executor's name. The 

Lord Eldon, in 1812, that when a bill was notice should be given to tbe executor or 

dishonored after the bankruptcy of the administrator ; but if the holder does not 

drawer, a notice to him is a sufficient and know, and cannot by reasonable diligence 

proper notice if his assignee has not been know, whether there is one, or who ne is, 

appointed. * The bankrupt ' says the or where he resides, be is excused from 

learned judge, 'represents his estate till giving the notice. Massachusetts Bank 

assiffuees are chosen.' Ex parte Moline, v. Oliver, 10 Cush. (Mass.) 557. See also 

19 Yes. 216. Cf. Story, Bills of Exchange, Brailsford v, Hodgewerf, 15 Md. 150. It 

§ 305 ; Ex parte Johnson, 3 Dea. k Cn. is sufficient if one of several administrators 

433." Where the indorsee of a note was or executors of a deceased indorser receive 

dead, a notice of its dishonor sent by mail, notice of protest. Beals v. Peck, 12 Barb, 

directed " to the Estate of H. 0., de- (N. Y.) 245. 
ceaq^d," was held not sufficient to chai^ge 



PART IT.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 175 

able time after the dishonor, and protest, if there be one, and that 
due diligence was exercised for this purpose. When the facts are 
ascertained, the question whether they prove due diligence, or 
notice within reasonable time, is a question of law.^ Where this 
reasonable tiihe is positively fixed by the law of the particular 
country, it must be strictly followed. Thus, though the protest 
must be made according to the law of the place of acceptance, yet 
notice to the drawer must be given according to the law of .the 
place where the bill was drawn, and to the indorsers, according to 
the law of the place where the indorsements were respectively 
made.^ In other cases, the reasonableness of the time of notice 
depends on the particular circumstances of each case ; but in gen- 
eral it may be remarked, that where there is a regular intercourse 
carried on between the two places, whether by post or by packet- 
ships, sailing at stated times, the notice should be sent by the next 
post or ship, after the dishonor and protest, if a reasonable time 
remains for writing and forwarding the notice ; and where there 
are none but irregular communications, that which is most proba- 
bly and reasonably certain and expeditious should be resorted to.^ 
If the usual mercantile intercourse is by post or mail, that mode 
alone should be adopted, though others may concurrently exist.^ 
But whatever be the mode of notice, the time of its transmission 
should be proved with sufficient precision ; for, where a witness 
testified that he gave notice in two or three days after the dis- 
honor, notice in two days being in time, but notice on the third 
day being too late, it was held not sufficient evidence to go to the 
jury, and the plaintiff was nonsuited ; for the burden of proof of 
seasonable notice is on him.^ 

§ 354 ; Mills o. Bank of United States, 11 Wheat 431, 437. And the same view is 
taken by Ck)leridge, J., in £a8t v. Smith, 11 Jur. 412 ; 16 Law Jour. N. 8. 292. The 
holder of a bill may take advantage of a notice of dishonor, given bjr any person who 
is himself liable to be sued on the bill, if it were given in sufficient time to maintain 
an action in &vor of such party. Harrison v. Kuscoe, 15 M. & W. 231, 10 Jur. 142 ; 
Lynght v. Bryant^ 19 Law J. 160 ; 2 C. & K. 1016. 

1 Bank of Columbia v. Lawrence, 1 Pet S. 0. 578, 583; Carrol v, Upton, 3 Comst 
272. 

' Story on Bills, §§ 284, 285, 382-385; Chitty & Hnlme on Bills, pp. 167-171 (9th 
ed.). A promissory note, payable by instalments, is negotiable, and the indorser is 
entitled to a presentment upon the last day of grace after each day of payment, and to 
notice, if eacn particular instalment is not paid when dae. Oridge v, Sherborne, 11 
M. & W. 374. 

* Story on Bills, §§ 286, 382, 383. Notice, sent by the post, will be considered 
as notice from the time at which, by the regular course of the post, it ought to be re- 
ceived. Smith V. Bank of Washington, 5 S. & R. 385. 

« Stoiy on Bills, f f 287, 382, 383. 

* Lawson v. Sherwood, 1 Stark. 314. See Brailsford v, Hodgeweif, 15 Md. 150. 



176 LAW OP EVIDENCE. [PART IV. 

§ 186 a. When not neoMsaxy. If the bill or note has been re- 
ceived by the holder merely as a collateral security, the party from 
whom he received it being neither drawer nor indorser, nor the 
transferrer of it by delivery, if payable to the bearer, the holder is 
not bound to prove a strict presentment of the bill or note ; nor 
will the other party be exonerated from the debt collaterally se- 
cured by the delivery of such bill or note, unless he can show that 
he has actually sustained some damage or prejudice by such non- 
presentment. And the same rule applies to a party who is a mere 
guarantor of a bill or note ; the burden of proof being in both these 
cases on the debtor, or the guarantor, to show an actual loss, or 
prejudice to his remedy over.^ 

§ 187. Time and mode of notice. Where the notice is sent by 
post, it need not be sent on the day of dishonor, but it should go 
by the next practicable post after that day, having due reference to 
all the circumstances of the case.^ But if the action is commenced 
on the same day on which the notice is sent (as it well may be^), 
the burden of proof being on the plaintiff to show that the right of 
action was complete before the suit was commenced, he must prove, 
not only that the notice was sent, but that it reached its destina- 
tion before process was sued out. For the rule of law is, that 
where there is a doubt which of two occurrences took place first, 
the party who is to act upon the assumption that they took place 
in a particular order, is to make the inquiry.* The same rule ap- 
plies to successive indorsers ; each one being generally entitled to 
at least one full day after he has received the notice, before he is 
required to give notice to any antecedent indorser, who may be 
liable to him for payment of the bill or note.^ (a) Sunday, not 

^ Story on Bills, § 872 ; Stoiy on Promissory Notes, § 486 ; Hitchcock v. Hnm- 
frey, 5 M. & G. 659 ; Oxford Bank v. Hayes, 8 Pick. 428 ; Talbot v. Gay, 18 Pick. 
534 ; Gibbs v. Cannon, 9 S. & R. 202 ; Phillips v. Astling, 2 Taant. 206. Where 
notice to a guarantor is requisite, it will be seasonable if giyen at any time before ac- 
tion brought, if he has not been prejudiced by the want of earlier notice. Ibid. ; Bab- 
cock V. Bryant, 12 Pick. 188 ; Salisbury v. Hale, Id. 416 ; Walton i;. Maacall, 18 
M. k W. 72. 

^ If the notice be put in the post-office in due time, the holder of the bill or note 
is not prejudiced, if, through mistake or delay of the post-office, it be not deliyered in 
due time. Woodcock v. Houldswnrth, 16 M. & W. 124. 

• Greely v. Thurston, 4 Greenl. 479. 

^ Castnque v. Bemabo, 6 Ad. & £1. N. s. 498. 

> Story on Bills, |§ 288, 291, 297, 298, 884, 886 ; Bayley on Bills, pp. 268, 270 
(5th ed.) ; Chitty & Hulme on Bills, pp. 387, 482 (9th ecL). If there are two mails 

(a) This is true, though one of the to giya notice to his predeceason. Myen 
holders takes the note for collection only. v. Courtney, 11 Phiia. 848. 
Each one of the holders has a day in which 



PABT IV.] BILLS OP EXCHANGE AND PROMISSORY NOTES. 177 

being a business-daj, is not taken into the account, and notice on 
Monday, of a dishonor on Saturday, is sufficient.^ 

§ 187 a. Same subjeot. Agency. If the bill or note has been 
transmitted to an agent or banker ^ for the purpose of obtaining 
acceptance or payment, he will be entitled to the same time to give 
notice to his principal or customer, and to the other parties to the 
instrument, as if he were himself the real holder, and his principal 
or customer were the party next entitled to notice ; and the prin- 
cipal or customer will be entitled, after such notice, to the like 
time, to give notice to the antecedent parties, as if he received 
notice from a real holder, and not from his own banker or agent. 
In short, in all such cases, the banker or agent is treated as a dis- 
tinct holder.' And a central or principal bank, and its different 
branches, are also treated as distinct holders, in regard to bills 
and notes transmitted from the one to the other for presentment 
or collection.* 

§ 188. Same subjeot Residence. If the parties reside in or 
near the same town or place where the dishonor occurs, the notice, 
whether given verbally, or by a special messenger, or by the local 
or penny post, should be given on the day of the dishonor, or, at 
farthest, upon the following day, early enough for it to be actually 
received on that day.^ But where both parties reside in the same 
town or city, the rule is, that the notice must be personal; that is, 
must be given to the individual, in person, or be left at his domicile 
or place of business ; for in such case it is not competent for the 
holder to put a letter into the post-office and insist upon that as 
a sufficient notice, unless he also proves that it did in fact reach 
the other party in due season ; for it will not be presumed.^ (a) 

on the same day, notice hy the hit«st of them is sufficient. WhitweU v. Johnson, 17 
Mass. 449, 454. See also Chick v. PiUsbury, 11 ShepL 458. And if there are two 
post-offices in the same town, notice sent to either is, prima fade, sufficient. Story 
on Bills, § 297 ; Yeatman v. Erwin, 3 Miller (La. ), 264. So is notice sent to any post- 
office, to which the party usually resorts for letters. Bank of Geneva v. Howlett, 8 
Wend. 828 ; Reid v. Paine, 16 Johns. 218 ; Cuyler v. Nellis, 4 Wend. 898. 

1 Eagle Bank v. Chapin, 3 Pick. 180 ; Story on Bills, §§ 288, 298, 808, 809. 

> Story on Bills, f 292 ; Story on Promissory Notes, f 326. 

• Clode V. Bayley, 12 M. & W. 51. 

^ Story on Bills, § 289 ; Chitty k Hulme on Bills, pp. 887, 472, 473 (9th ed.) ; 
Orand Bank v. Blanchard, 23 Pick. 305 ; Seaver v. Lincoln, 21 Pick. 267. 

* Story on Promissonr Notes, § 322 ; Eaele Bank v. Hathaway, 5 Met. 215 ; Peirce 
9. Pender, Id. 352 ; 8 Kent, Comm. 107 (5tn ed.); 1 Hare & Wallace's Leading Cases, 

(a) Phipps V. Chase, 6 Met (Mass. ) 492. Bank v, Russell, 4 Gray (Mass.), 169, by 

Whether tne rule stated in the text may, Shaw, C. J. In a large commercial dty, 

pirbapSy under peculiar circumstances, ad- where the parties liye within the limits of 

mit of exceptions, quaere. See ti0v, Cftbot a penny post, by which the party to whom 

TOL. II. 12 



178 LAW OP EYIDENGE. [PABT IV, 

And a custom among the notaries of a city to give notice in such 
cases through the post-office will not control this rule.^ But 
a by-law or usage of a bank, establishing this mode of giving 
notice, will bind parties to bills or notes made payable to such 

bank.* 

« 

§ 189. Contents of notioe. It will be sufficient if the note or 
bill described in the notice, substanticUltf corresponds with that 
described on the record. A variance in the notice, to be fatal, 
must be such as conveys to the party no sufficient knowledge of 

p. 254. In respect to this rale, the term "holder" inclndeB the bank at which the 
note is payable, and the noUiry who may hold the note as the agent of the owner, for 
the purpose of making demand and protest Bowling v. Harrison, 6 How. S. G. 248. 

1 Wilcox V. McNutt, 2 How. (Miss.) 776. 

* Renner v. Bank of Columbia, 9 Wheat. 581; Jones v. Fales, 4 Mass. 245; 1 Hare 
k Wallace's Leading Cases, pp. 254-256 ; Chicopee Bank v. £ager, 9 Met 583. 

a notice is to be given is accustomed to re- entirely distinct names, as post-offices." 
ceiye his letters, a notice deposited in the And after mentioning the decision in 
post-office is sufficient Walters r. Brown, Chicopee Bank v. Eager, 9 Met (Mass.) 
15 Md. 285. Where there is a general de- 585, sup., note 2, he says, "The court 
livery of mail matter by messengers, and there held the notice (by mail) good, but 
a letter is put into the post-office to be placed the decision upon the ground of 
transmitted to a party resident in the same usage, which brought the case clearly 
town, and not merely deposited till called within the rule as established by the ad- 
for, it is probably sufficient. Shelburne, judicated cases, and so it became unneces> 
kc. V, Tqwnsley, 102 Mass. 177. But a sary to give an opinion whether such a 
drop-letter, when there is no general de- notice would have been good or not, with* 
livery in the town where the party to out such usage. Had the fact of usage 
whom the letter is addressed usually re- been otherwise, or the defendant not been 
ceives his mail matter, is not the equiva- held to have assented to it, upon the gen- 
lent of mailing a letter in another town eral principles previously laid down on the 
to his address. Ibid. subject, there would have heea at least 
Incommentingonthisrale, Shaw,C. J., plausible ground for arguing that the 
in Cabot Bank v. Russell, 4 Gray (Mass.), notice was good." 

169, says : '* Even the rule that where Where there are two post-offices in a 
notice is to be given to an indorser in the town, notice by letter to an indorser, 
same town, it must be personal and ought addr^sed to him at the town ^nerally, is 
not to be by mail, which seems to be as sufficient, unless the partr has oeen gnner- 
nearly fixed by judicial decision as such ally accustomed to receive his letters at 
rule can.be, may perhaps, under peculiar one of the offices in particular. The plain- 
circumstances, admit of exceptions. Shall tiff makes out ti prima facie case by prov- 
the party notifying and the party to be ing notice bv letter addressed to the 
notified be held to live in the same place defendant at the town generally. The de- 
within this rule, because they live within fendant may rebut this by showing that 
the territorial limits of one of the large he usually receives his letters at one office 
townships of New England, and all under only, and that this might have been 
one municipal government and known by known by reasonable inquiry at the place 
one name as a town, but where there are where the letter was mailed. Morton v. 
several distinct villages, each with its post- Westcott, 8 Cush. (Mass.) 427. See also 
office, churches, school-houses, and other Manchester Bank v. White, 80 N. H. 456; 
incidents of a distinct community 1 Such Manchester Bank v. Fellows, 28 Id. 802; 
towns exist having many poet-offices, to Windham Bank v. Norton, 22 (^nn. 213. 
the extent of eight or more, one bearing A notice addressed to " Mrs. Susan Collins, 
simply the name of the town, others with Boston," is prima fade sufficient to chaige 
the name of the town and with some local her as an indorser, if she lived in Boston, 
designation, as 'east,' 'north,' 'upper,' True v. Collins, 8 Allen (Mass.), 438. 
or 'lower,' and the like^ and others wiUi 



PABT IT.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 179 

the particular note or bill, which has been dishonored. If it does 
not mislead him, but conveys to him the real fact without any 
doubt, the yariance cannot be material, either to guard his rights, 
or to avoid his responsibility.^ Thus, where the written notice, 
given on the 22d of September, described the note as dated on 
the 20th of the same month payable in sixty days, whereas in fact 
it bore date on the 20th of July, but it appeared that there was 
no other note between the parties, this was held sufficient, the 
note being otherwise correctly described.^ So, where the bill 
was payable at the London Joint-Stock Bank, but in the notice 
it was described as payable at the London and Westminster Joint* 
Stock Bank, which was shown to be a different bank, yet it was 
held sufficient.* So, where there was but one note between the 
parties to which the notice could apply, but the sum was errone- 
ously stated in the notice, it was held sufficient.^ And in such 
cases, the question is for the jury to determine, whether the 
defendant must or may not have known to what note the notice 
referred.* (a) 

§ 190. When notice imneoeMaiy. The plaintiff, however, need 
not prove notice of the dishonor of a bill or note if the defendant 
has waived his right to such notice, or has admitted it'. This 
may be shown not only by an express waiver, or admission, but, 
as against the drawer it may be inferred from circumstances 
amounting to it, such as an express promise to pay the amount 
of the bill or note, even though conditional as to the mode of 
payment ; or, a partial payment ; or, any acknowledgment by the 
drawer, of his liability to pay.* (6) But the promise or partial 

1 Hills V. Bank of United States, 11 Wheat. 431, 485 ; Saltnianh v, Tuthill, 18 
Ak. 890. 

> MIUb v. Bank of United States, 11 Wheat. 481, 486. 

• Bromage v. Yanghan, 10 Jar. 982. See also Bailey v. Porter, 14 M. & W. 44 ; 
Bowlands v, Springett, Id. 7 ; 9 Jur. 866. 

• Bank of Alexandria v. Swann, 9 Pet 88, 46, 47 ; Stockman v. Parr, 1 C. & K. 
41 ; 11 M. & W. 809. 

• Smith V, Whiting, 12 Mass. 6; Bank of Rochester v. Gould, 9 Wend. 279; Ready 
V. SeixBS, 2 Johns. Cas. 887. 

^ Stoiy on Bills, § 820 ; Hopkins v. Liswell, 12 Mass. 52 ; Thornton 9. Wynn, 
12 Wheat 188 ; Martin v. Ingersoll, 8 Pick. 1 ; Creamer v. Perry, 17 Pick. 882 ; Cen- 

(a) See also Honsatonic Bank v. Lafiin, 18 Barb. (K. Y.) 187 ; Shelton v, Braith- 

5 Cosh. (Mass.) 646; Crocker v. Oetchell, waite, 7 M. ftW. 486; Stockman v. Parr, 

lOShep. (Me.) 892; Wheatonv. Wilmarth, 11 Id. 809. 

IS Met. (Mass.) 422; Clark v. Eldridge, (6) Bandy v. Bozzell, 61 Yt 128. In 

Id. 96; Cayoga Co. Bank v. Warden, 1 Maine, by Stat. 1868, c. 152, R. S. c. 

Comst (17. Y.) 418 ; Dennistoun v. Stew- 82, § 10, no waiver of demand and notice 

art, 17 How. (U. S.) 606 ; Yoangs v. Lee, by an indorser of any promissory note 



180 LAW OP EVIDENCE, [PABT IV. 

payment, to have this effect, must be made with a full knowledge 
of all the facts, must be unequivocal, and amount to an admis- 
sion of the right of the holder.^ So, the acceptance, by the in- 
dorser, of adequate collateral security from the maker, or accepting 
an assignment of all the maker's property, for this purpose, though 
it be inadequate, has been held a waiver of notice, if taken before 
the maturity of the note ; ^ (a) but not if taken afterwards.' Nor 
is an assignment of property to trustees, for the security, among 
others, of an indorser, sufficient to dispense with proof of a regu- 
lar demand and notice.^ And even an express waiver of notice 
will not amount to a waiver of a demand on the maker of the 
note.^ A known tisage may also affect the general law on this 
subject. Thus, if a note is made payable at a particular bank, 

tnd Bank v. Davis, 19 Pick. 373; Warder v. Tucker, 7 Mass. 449; Boyd v. Cleayeland, 
4 Pick. 525 ; Farmer v. JEUnd, 2 Shepl. 225 ; Ticonic Bank v. Johnson, 8 Sbepl. 426 ; 
Levy V. Peters, 9 8. ft R. 125 ; Fuller v. McDonald, 8 Greenl. 213 ; Chitty & Holme 
on Bills, p. 660 (9th ed.) ; I^awrence v, Ralston, 8 Bibb. 102 ; Ritcher v. Selin, 8 S. 
ft R. 438 ; Pierson v. Hooker, 3 Johns. 71 ; Campbell v. Webster, 2 M. G. & S. 258, 
and cases there cited ; Walker v. Walker, 2 Eng. 542 ; Washer v. White, 16 Ind. 136. 
Whether the evidence establishes the fact of a waiver, or admission, is a question for 
the jury. Union Bank of Georgetown v. Magruder, 7 Pet 287. Parol evidence of 
statements verbally made by the indorser, at the time of a blank indorsement of a note, 
though not admissible to vary the contract which the law implies from the indorse- 
ment, are admissible to show a waiver of a demand and notice. Sanborn v. Southard, 
12 Shepl. 499. In Texas, parol evidence of a waiver of the right to due diligence in 
the holder is inadmissible. Hartley's Dig. art. 2526. 

1 Ibid. 

' Bond V. Famham, 5 Mass. 70 ; Andrews v. Boyd, 8 Met 484 ; Mead r. Small, S 
Greenl. 207. 

* Tower v. Durell, 9 Mass. 382. * Creamer v. Perry, 17 Pick. 332. 

* Berkshire Bank v, Jones, 6 Mass. 524 ; Backus v. Shepherd, 11 Wend. 629. 

or bill of exchange is valid unless it gaged property but failed to sell it or pay 
is in writing signed by such indorser or the note, but often told plaintiff he would 
his lawful agent. It was held in Parshley take care of the note. There was no evi- 
V. Heath, 69 Me. 90, that when an in- dence that a demand was made and notice 
dorser writes ** waiving demand and no- of non-payment given to the indonter, but 
tice " on a note above his signature, and the holder contended that there was evi- 
other indorsers merely write tneir names, dence which would justify the jury in find- 
they adopt the waiver of demand and no- ing that the indorser had waived demand 
tice' and will be bound by it. If any one of and notice. The court rejected the evi- 
them wishes not to adopt it, he should dence, but on appeal its decision was re- 
wiite, "requiring demand and notice" over versed, and the court above affirmed the 
his signatures. This is perhaps an extreme doctrine of the text, that the oral promise of 
case. As to circumstantial evidence in an indorser to pay the note after it is over- 
proof of waiver, the case of Armstrong v. due, with knowledge that there has been 
Chadwick, 127 Mass. 156, is in point, no demand or notice, and of all the facta. 
There was evidence that the indorser was is a waiver of such demand. Cf. Third Na- 
told by the holder of the note that the tional Bank v, Ashworth, 105 Mass. 503. 
note was worthless, and that he should {a) And so if the property so given as 
hold him as indorser on the note, to which collateral security has been appropriated to 
the indorser assented, and said he would that purpose, and the indorser nas been 
take Uie mortgaged property (given to se- authorized to use it for payment of the 
cure the note), sell it and take care of the note. Wright v. Andrews, 70 Me. 86. 
note. The indorser did so take the mort- 



PABT lY.] BILLS OF EXCHANGE AND PROMISSORT NOTES. 181 

the usage of that bank, as to the mode and time of demand and 
notice, will bind the parties, whether they had knowledge of it or 
not ; and if the note is discounted at a bank, its usages, known to 
the parties, are equally binding.^ 

§ 190 a. Same subject. Proof of notice will also be dlapensed 
fcithj where it was morally or physically impossible to give it; 
as, by the absconding of the party, or where the holder was 
justifiably ignorant of the place of his abode ; or, by the general 
prevalence of a malignant disease ; or, the sudden illness or death 
of the holder; or any other inevitable casualty or obstruction. 
The omission of notice is also excused, where the holder of the 
bill stands in the relation of an accommodation holder or indorser 
to the drawer or other indorser, the latter being the real debtors. 
So, if the drawer of a bill had no right to draw, and no reasonable 
ground to expect that the bill would be honored by the drawee ; 
as, if he had drawn it without funds in the hands of the drawee, 
or any expectation of funds in his hands to meet it, or any arrange- 
ment or agreement on his part to accept it ; for in these cases 
he would have no remedy against any one in consequence of the 
dishonor of the bill. But if he were a mere accommodation 
drawer, or would be entitled to some remedy over against some 
other party, or would otherwise be exposed to loss and damage, 
he is entitled to notice. So, if having funds in the hands of the 
drawee, or on the way to him, the drawer has withdrawn, or 
stopped them, no proof of notice is requisite. Nor is it required 
in an action against the indorser of a bill or note, where he is the 
real debtor, for whose accommodation the instrument was created, 
and no funds have been provided in the hands of other parties 
for its payment. Nor, where, being an accommodation indorser, 
he has received funds sufficient for the payment of the bill or 
note in full, and to secure him an ample indemnity. Nor where, 
by arrangement between any of the parties, the necessity of notice 
has been expressly or impliedly dispensed with.^ 

§ 191. Proof of oontanti of written notioe. If the notice has 

1 Lincoln k Kennebec Bank v. Page, 9 Mass. 165 ; Blanchard v, Hilliard, 11 Mass. 
85 ; Smith v. Whiting, 12 Mass. 6 ; City Bank v. Cutter, 3 Pick. 414. 

« Story on Bills, §§ 30S-317 ; Story on Promissory Notes, §§ 855-357. Knowledge 
in fact of the dishonor of a bill, where the drawer is himself tiie person to pay it, as 
ezecntor of the acceptor, amounts to notice. Caunt v. Thompson, 7 M. G. & S. 400 ; 
6 D. ft L. 621. But knowledge of the probability, however strong, that the bill will 
be dishonored, is not sufficient to dispense with notice. Ibid. ; Fuller v. Hooper, 8 
Ony, 834. 



184 LAW OP EVIDENCE. [PABT IV. 

the persons, if living, whose duty it wa43 to hand over the letters, 
or to carry them thither, that they invariably handed over or 
carried all that were delivered to them, or were left in a certain 
place for that purpose; and if books and entries were kept of 
such letters sent, they should be produced, with proof of the 
handwriting of deceased clerks, who may have made the entries. 
The mere proof of the course of the office or business, without 
calling the persons actually employed, if living, will not ordinarily 
suffice.^ 

§ 194. Where notloe to be given. As to the place to which notice 
may be sent, this may be either at the party's counting-room, or 
other place of business, or at his dwelling-house ; or at any other 
place agreed on by the parties. And if a verbal notice is sent 
to the place of business during the usual business-hours, and no 
person is there to receive it, nothing more is required of the 
holder.^ (a) 

§ 195. Ezoiue for failure to give notice, &o. If no notice of 
dishonor has been given, or no presentment of protest has been 
made, the plaintiff may excuse his neglect by proof of facts, show- 
ing that presentment or notice was not requisite.^ Thus, where 
the defendant was drawer of the bill, the want of presentment 
is excused by proving that ho had no effects in the hands of the 
drawee, and no reasonable grounds to expect that the bill would 
be honored, from the time it was drawn until it became due.^ 

1 Stui^ V. Buchanan, 2 M. & Rob. 90 ; b. c. 10 Ad. k £1. 598 ; 8. C 2 Per. k 
Dav. 573 ; Hetherington v. Kemp, 4 Campb. 193 ; Toosey v, Williams, 1 M. & Malk. 
129 ; Chitty & Hulme on Bills, p. 659 (9th ed.) ; Hawkes v. Salter, 4 Bing. 715 ; 
1 M. & P. 760. 

' Chitty k Hulme on Bills, p. 464 (9th ed.) ; Croese v. Smith, 1 M. & S. 545 ; 
Whitwell V. Johnson, 17 Mass. 449 ; State Bank v. Hurd, 12 Kass. 172 ; Allen v. 
Edmonson, 2 0. & R. 547 ; cmU, §§ 178-180. 

* Where a note is payable at a certain place and on demand after a certain time, no 
averment or proof of a demand is necessary to the maintenance of the action. (Gammon 
V. Everett, 12 Shepl. 66. 

« Chitty & Hulme on Bills, pp. 436, 437 (9th ed.); Stoty on Bills, §§ 308-817, 329. 
367-369 ; Rucker v. HUler, 16 East, 43 ; Legge v, Thorpe, 12 East, 171 ; Bickerdike 
V. Bollman, 1 T. R. 405 ; Hammond v, Dufrene, 3 Campb. 145. So as to the iudorser 
of a note. Comey v. Da Costa, 1 Esp. 302. See also Campbell v. Pettengill, 7 GreenL 
126 ; French v. Bank of Columbia, 4 Cranch, 141; Austin v. Rodman, 1 Hawks, 194; 
Robinson v. Ames, 20 Johns. 146. ;And see DoUfus v. Frosch, 1 Denio, 367 ; Fuller 
V. Hooper, 3 Gray, 334. 

(a) When an indorser has a residence there, stopping there from time to time 

in one town previous to making the note, whenever he comes into that town, a no* 

and then moves to another, but leaves a tioe sent to that house is sufficient. Mur- 

member of his family in possession of his ray v. Ormes, 8 MacArthur (Dist. of 0>- 

former residence, together with his ser- lumbia), 60. 
vants, and keeps up his establishment 



PART IV.] BILLS OF EXCHANGE AND PBOMISSOBT NOTES. 185 

So if, having funds in the hands of the drawee, or on the way to 
him, the drawer has withdrawn or stopped them.^ So, the want 
of notice of dishonor is excused, in an action against the drawer, 
by proof that the bill was accepted, merely for the accommodation 
of the drawer, who was therefore bound at all events to pay it ; 
and this fact may well be inferred by the jury, if the bill is made 
payable at the drawer's own house.^ And the want of effects in 
the drawee's hands, he being the drawer's banker, may be shown 
by the banker's books ; the production and verification of which 
by one of his clerks is sufficient, though the entries are in the 
handwriting of several.^ Nor is proof of notice requisite in an 
action against the indorser of a bill or note, wliere he is the real 
debtor, for whose accommodation the instrument was created, and 
no funds have been provided in the hands of other parties for its 
payment.^ So, if the holder was ignorant of the drawer's residence^ 
this excuses the want of notice to him, if he has made diligent 
inquiry for the place of his residence ; of which fact the jury will 
judge.^ So, if the notice was sent to the wrong person, the mistake 
having arisen from indistinctness in the drawer's writing on the 
bill ;• (a) or if the drawer verbally waives the notice, by promising 
to pay the bill, or to call and see if the bill is paid ; ^ or if the 
indorser himself informs the holder that the maker has absconded, 
and negotiates for further time of payment,^ — the want of notice 
is excused. If the agent of a corporation draws a bill in its name 

1 Bayley on Bins, 296 ; Story on Billa, § 818 ; Fuller v. Hooper, 8 Gray, 884. 

< Sharp V, Bailey, 9 B. & C. 44 ; 4 M. & By. 4 ; Callott v. Haigh, 8 Caropb. 281. 
If the transaction between the drawer and drawee is illegal, the payee, being the in- 
dorser, and conusant of the illegality, is liable without notice. Copp v, McDougaU, 9 
3iaM.l. 

s Fumess v. Cope, 6 Bing. 114. « Story on Bills, §§ 814-816. 

* Browning v. Kinnear, Gow, 81 ; Bateman v. Joseph, 12 East, 488 ; Harrison v. 
Fitzhenry, 8 Esp. 240 ; Siggers v. Brown, 1 M. & Rob. 520 ; Hopley o, Dufresne, 15 
East, 275 ; Holford v, Wilson, 1 Taunt. 16 ; Whittier v. Graffham, 8 Greenl. 82. 

• Hewitt V. Thomson, 1 M. & Rob. 541. 

' Phipson V. Kueller, 4 Campb. 285 ; 1 Stark. 116; Chapman v, Annett, 1 C. & E. 
552. Or if, before maturity of the note or bill, the indorser promises to pay, upon the 
agreement of the holder to enlarge the time. Norton «. Lewis, 2 Conn. 478. 

s Leffingwell v. White, 1 Johns. Cas. 99. See also anU, f 184. 

(a) But in Davey v. Jonea, 42 N. J. L. held in suit by B minst A that as the de- 

28 when A indorsed a note to B, and B fault arose either from the negligence of 

indorsed it and sent it to a bank for col- the plaintiff, in writing his name amblga* 

lection, and tJie notary employed by the ouslv on the note, or from the carelessness 

bank mistook B*s name and sent the notices of tne bank, his collecting agent, in not 

of B and A, in one envelope wronfflv telling the notary the true name of the 

directed to B, in conseouence of whicn plaintiff, the lack of notice was not ex- 

the Dotioes never reachea A or B, it was cused. 



186 LAW OP EVIDENCE. [PABT IT. 

on its treasurer, payable to its own order, and indorses it in the 
name of the corporation, a presentment to the treasurer, and his 
refusal to honor the bill, is of itself notice to the corporation of 
both those facts.^ So, if the presentment in season was impossi- 
ble, by reason of unavoidable accident, a subsequent presentment, 
when it becomes possible, will excuse the delay .^ But the actual 
insolvency of the maker of a note, at the time when it fell due, 
does not excuse the want of notice to the indorser ; ^ even though 
the fact was known to the indorser, who indorsed it to give it 
currency.* Nor does the insolvency of the acceptor excuse the 
want of notice to the drawer.*^ (a) 

§ 195 a. Same subjeot. But in the case of a banker's cheeky the 
drawer is treated as in some sort the principal debtor ; and he is 
not discharged by any laches of the holder, in not making due 
presentment, or in not giving him due notice of the dishonor, un« 
less he has suffered some injury or loss thereby ; and then only 
pro tanto. And the burden of proof is on the holder, to show, as 
part of his case, that no damage has accrued or can accrue to the 
drawer by his omission of any earlier demand or notice ; or, in 
other words, that his situation, as regards the drawer, remains as 
it was at the time of the dishonor.^ 

§ 196. Same subjeot. So, as we have already seen, if the drawer 

^ Commercial Bank v, St Croix Man. Co., 10 ShepL 280. 

< Scholfield V, Bayard, 3 Wend. 488; Patience v. Townley, 2 Smith, 223. 

' Groton v. Dalhoim, 6 Greenl. 476; Jackson v, Richards, 2 Caines, 343; Croeaen v. 
Hutching, 9 Mass. 205; Sandford v. DaUawav, 10 Mass, 52. 

« Nicholson v. Oonthit, 2 H. Bl. 609 ; Buck v. Cotton, 2 Conn. 126; Gower v. 
Moore, 12 Shepl. 16. 

< Whitfield V, Savage, 2 B. & P. 277; May v. Coffin, 4 Mass. 341. 

• Story on Promissory Notes, §§ 492, 498; 3 Kent, Coram. 104, n. (a), (5th ed,); 
Little V. Phenix Bank, 2 Hill (N. Y.), 425; Eemble v. Mills, 1 M. & Gr. 757. 

(a) Notice of the non-acceptance and or of due and reasonable efforts to find 

non-payment of a bill of exchange drawn them for that purpose, in order to fix the 

by a partner upon his partnership need indorser and render his liability absolute, 

not be given to the drawer, after all Such demand will be sufficient if made at 

the partners have gone into insolvency, either of those places, if they were both 

Fuller V, Hooper, 3 Gray (Mass.), 334. left and abandoned at the same time; but 

If the maker of a note absconds, leaving if there be a difference in the time, it 

no visible attachable property, a want (» should be made at that which was most 

a demand or inquiry for him is not there- recently occupied. In such case the 

by excused, so as to charge the indorser, holder is not required, as an essential pre- 

aithoush the latter knew of such abscond- liminary to a claim upon the indorser, to 

ing. Fierce v, Cate, 12 Cush. (Mass.) resort to or inquire for the new residence 

190 ; Wheeler v. Field, 6 Met. (Mass.) to which the maker has gone beyond the 

290. In such case "there must be a State into a foreign country." Grafbon 

presentment and demand of payment at Bank v. Cox, 18 Gray, 504. 
his last place of business or of residence, 



PABT IT.] BELLS OF EXCHANGE AND FBOKISSOBT NOTES. 187 

of a bill, after full notice of the laches of the holder, pay% part 
of the bill, or promises to pay it, this excuses the want of evidence 
of due presentment, protest, and notice.^ The like evidence %vf^ 
fices in an action against the indorser of a bill or note.^ But it 
has been considered, that though the waiver by the drawer^ of his 
right to presentment and notice, may be inferred from circum- 
stances and by implication, yet that an indorser is not chargeable 
after laches by the holder, unless upon his express promise to pay.* 

§ 197. Same snbjeot. It may be proper here to add, that, where 
matter in excuse of the want of demand and notice is relied upon, 
it is usiuil to declare as if there had been due presentment and 
notice, some latitude in the mode of proof being allowed, and the 
evidence being regarded not strictly as matter in excuse, but as 
proof of a qualified presentment and demand, or of acts which, in 
their legal effect, and by the custom of merchants, are equivalent 
thereto, (a) Moreover, in all cases, where a note is given in evi- 
dence upon the money counts, any proof which establishes the 
plaintifiTs right to recover upon the note supports the count.^ 

§ 198. Defences. The DEFENCE to an action on a bill of ex- 
change or a promissory note most frequently is founded on some 
defect of proof on the part of the plaintiff, in making out his own 
title to recover; which has already been considered. Several 
other issues, such as Infancy ^ Tender y the Statute of Limitations, 
Ac, which are common to all actions of Assumpsit, will be treated 
under those particular titles. It will therefore remain to consider 
some defences, which are peculiar to actions on bills and notes. 

§ 199. "Want of consideration. In regard to the consideration, 
it is well settled in the law-merchant, that, in negotiable securities, 
in the hands of innocent third persons, a valid and suflScient con- 
sideration for the drawing or acceptance is conclusively presumed. 

J Supra^ § 190; Chittylc Hnlme on Bills, p. 660 (9th ed.); Duryee v. Dennison, 
5 Johns. 24S; Miller v. Hackley, Id. 875; Ciain v. ColweU, 8 Johns. 884; Myers 
9. Standart, 11 Ohio St. 29. 

« Ibid.; Taylor «. Jones, 2 Campb. 105. See also Trimble r. Thorn, 16 Johns. 152; 
Jones p. Savage, 6 Wend. 658; Leonard v. Gray, 10 Wend. 504. 

s Borradaile v. Lowe, 4 Taant. 98. And see Wilkinson v, Jadis, 1 M. & Rob. 41; 
2 B. ft Ad. 188; I.ord v. Chadboume, 8 GreenL 198; Fuller v. McDonald, Id. 218. 

« North Bank v, Abbott, 18 Pick. 465, 469, 470; HiU v. Heap, 1 D. & B. 57. And 
flee Cory v. Scott, 8 B. & Aid. 619, 625, per Holroyd, J., ace. But Bailey, J., was in- 
cUned to think, that the excuse for want of notice should be specially alleged. Id. p. 
624. See also, in aocordance with the text, Norton v. Lewis, 2 Conn. 478; Williams 
V. Matthews, 8 Cowen, 252. 

(a) Annstrong «. Chadwick, 127 Mass. 156. 



188 LAW OP £7IDENC£. [PABT IV. 

But as between the original parties, and those identified in equity 
with them, tliis presumption is not conclusive but disputable, and 
the consideration is open to inquiry. Wherever, therefore, the 
plaintiff, being an indorsee, is shown to stand in the place of the 
original promisee or party, as, by receiving the security after it 
was dishonored, or the like, the defendant, as we have already 
seen,^ may set up the defence of illegality or insufficiency in the 
consideration ; in which case he must be prepared with evidence 
to prove the circumstances under which the bill or note was drawn, 
and that it was transferred after its dishonor.^ Thus, in an action 
against the acceptor of a bill, given for the price of a horse, war- 
ranted sound, it appearing that the holder of the bill and the ori- 
ginal payee were identical in interest, the breach of the warranty, 
with an offer to return the horse, were held to constitute a good 
defence.'^ If the consideration has only partially failed, and the 
deficiency is susceptible of definite computation, this may be shown 
in defence pro tanbo. But if the precise amount to be deducted is 
unliquidated^ this cannot be shown in reduction of damages, bat 
the defendant must resort to his cross-action.^ (a) Mere inade^ 

1 Supra, § 171. At what time a note, payable on demand, is to be considered by 
the purchaser as a dishonored security, merely from its age, is not perfectly clear, and 
perhaps the case does not admit of determination by any fixed period, but must be 
left to be determined upon its own circumstances. In Barough v. White, 4 B. & G. 
825, the time of the transfer of the note does not appear; but it was payable with tn- 
tereat, which Bailey, J., mentioned as indicating the understanding of the parties, that 
it would remain for some time unpaid. See also Sanford r. Mickles, 4 Johns. 221; 
Losee v. Dunkin, 7 Johns. 70; Thurston v, McEown, 6 Mass. 76. In the last case 
the note had been running seven days from the date, and was held not dishonored. 
But the lapse of eight months, and upwards, has been held sufficient evidence of dis- 
honor. Ayer v. Hutchins, 4 Mass. 870. See also Freeman v. Haskins, 2 Gaines, 868; 
Sylvester v. Grapo, 15 Pick. 92; Sice v, Gunuingham, 1 Gowen, 897, 408-410. In thia 
cabe the lapse of five months was held to discharge the indorser. See 8 Kent, Gomm. 
pp. 91, 92; Niver v. Best, 4 Law Rep. n. s. 183. By a statute of Massachusetts r»- 
spectinff notes payable on demand, a demand made at the end of sixty days from the 
date, without grace or at any earlier period, is to be deemed made in reasonable time; 
but after sixty days it is deemed overdue. Gen. Sts. c. 58, § 8. In Merritt v, Todd, 
28 N. Y. 28, it is held that a promissory note, payable on demand, with interest, is a 
continuing security; an indorser remains liable until an actual demand; and the holder 
is not chargeable with neglect for omitting to make such demand within any particular 
time. The question is here fully discn^ed by Gomstock, G. J. See also Lockwood 
V. Grawford, 18 Gonn. 861. 

> Ghitty & Hulme on Bills, jrn. 648, 662 (9th ed.); Webster v. Lee, 5 Mass. 384; 
Ranger v, Garey, 1 Met 869; Wilbour v. Turner, 5 Pick. 526. Thus he may show 
that the note or bill was void, by the statute of the State, being made and delivered on 
Sunday. Lovejoy v, Whipple, 8 Washb. 879. And see Story on Gontiacts, §§ 616- 
620 (2d ed.}. 

* Lewis V, Gosgrave, 2 Taunt. 2. 

^ See ntpra, tit Assumpsit; Ghitty & Hulme on Bills, pp. 76-79, 662 (9th ed.). 

(a) Where a promissory note is given siderationa, each going to a distinct poi^ 
npon two distinct and independent con- tion of the note, and one is a oonsideni* 



PABT IT.] BILLS OP EXCHANGE AND PROMISSORY NOTES. 189 

quaetf of consideration cannot be shown simply to reduce the dam- 
ages, though it may be proved as evidence of fraud, in order to 
defeat the entire action.^ 

§ 200. Other eqnitles. How far other equities between the ori- 
ginal parties may be set up in defence, against an indorsee affected 
with actual or constructive notice, is a question on which the de- 
cisions are not perfectly uniform. It has already been intimated,^ 
that, in the law-merchant, the equities thus permitted to be set up 
are those only that attach to the particular bill, and not those 
arising from other transactions. But in the courts of several of 
the United States, the defendant has been permitted, in many 
cases, to claim any setoff, which h^ might have claimed against 
the original party, though founded on other transactions.' In all 
cases, where the plaintiff is identified with the original contracting 
party, the declarations of the latter, made while the interest was 
in him, are admissible in evidence for the defendant.^ (a) But, 

^ Solomon v. Turner, 1 Stark. 51. 

* Supra, § 171; Bnrroiiflrk v. Moss, 10 B. & C. 558; Story on Bills, § 187, and n. 
(ft); Story on Promissory l^otes, § 178. Though the note is made payable to the 
maker's awn order, he will be entitled to the same defence sgainst an indorsee who re- 
ceived it when oyerdue, as if it were made payable to and indorsed by a third person. 
Potter V. Tyler, 2 Met 68. 

> Sarf^nt v. Southgate, 5 Pick. 312; Ayer v. Hutchins, 4 Mass. 370; Holland 
V. Makepeace, 8 Mass. 418; Shirley v. Todd, 9 Greenl. 83. See also the eases cited in 
Bayley on Bills, pp. 544-548, Phillips & Sewall's notes (2d Am. ed.); Tucker v. Smith, 
4 Greenl. 415; Sylvester v. Crapo, 15 Pick. 92. By a statute of Massachusetts, the 
maker of a note payable on demand is admitted to any defence against the indorsee, 
which would be open to him in a suit brought by the )>ayee. Stat. 1839, c. 121. 

* AnUy vol. L § 190 ; Beancfaanip v. Parry, 1 B. & Ad. 89 ; Welstead v. Levy, 1 
M. k Rob. 188 ; Chitty & Hulme on Bills, pp. 664, 665 (9th ed.) ; Shirley v. Todd, 
9 Greenl. 88; Hatch v. Dennis, 1 Fairf. 244; Pocock v. Billings, 2 Bing. 269; Hacket 
9. Martin, 8 Greenl. 77. 

tion which the law deems valid and suffi- transferred lonff after it was overdne, the 

dent to support a contract, and the other declarations of a former holder, made 

not, there Uie contract will be apportioned while he held the note, but after it was 

as between the original parties or those due, are admissible in evidence to show 

that have the same relative rights, and payment to such former holder, or any 

the holder will recover to the extent of right of set-off which the maker had 

the valid consideration and no further; against him. Such declarations, made by 

and when the parts of the note are not such holder before he took the note, are 

respectively liquidated and definite, a jury inadmissible; and such declarations by 

will settle, on the evidence before them, such holder, made after assigning the 

what amount is foimded on one considers- note to one from whom the plaintiff since 

tion and what on the other. Parish v. took it, are not competent testimony, un- 

Stone, 14 Pick. (Mass.) 198. See also Chic- less such assignment was conditioned to 

opee Bank v. Chapin, 8 Met. (Mass.) 40; he void upon Oie payment to the assignor 

Stoddard v. Kimball, 6 Gush. (Mass.) 469; of a less sum than the amount due on the 

Bond V. Fitzpatrick, 4 Gray (Mass.), 89; note, in which case such declarations are 

Lothropv. Snell, 11 Gush. (Mass.) 453. competent evidence for the defendant to 

(ft) In a suit against the maker of a defeat the recovery against him of any in- 

promiaaory note by one to whom it was terest remaining in the assignors, after 



190 LAW OP EVIDENCE. [PABT IV. 

where the plaintiff does not stand on the title of the prior party, 
but on that acquired hj the bona fide taking of the bill, it is 
otherwise.^ 

§ 201. Dlsoharge of aoceptanoe. The acceptor of a bill may also 
show as a defence, that his acceptance has been di%charged by the 
holder ; as, if the holder informs him that he has settled the bill 
with the drawer, and that he needs give himself no further trouble ; 
or, where the holder, knowing him to be an accommodation accep- 
tor, and having goods of the drawer, from the proceeds of which 
he expects payment, informs him that he shall look to the drawer 
alone, and shall not come upon the acceptor; or, if he should 
falsely state to the acceptor, ^that the bill was paid, or otherwise 
discharged, whereby the acceptor should be induced to give up any 
collateral security ; or, if he should expressly agree to consider 
the acceptance at an end, and make no demand on the acceptor 
for several years.^ And whatever discharges the acceptor will 
discharge the indorser; as, indeed, whatever act of the holder 
discharges the principal debtor will also discharge all others con- 
tingently liable, upon his default ; ^ and, more generally speaking, 
the release of any party, whether drawer or indorser, will discharge 
from payment of the bill every other party to whom the party re- 
leased would have been liable, if such party released should have 
paid the bill.* 

§ 202. "Where parties are coUateraUy liable. If the defendant is 
not the principal and absolute debtor, but is a party collaterally 
and contingently liable^ upon the principal debtor's default, as is 
the drawer or indorser, he may set up in defence any valid agree- 
ment between the holder of the security and the principal debtor, 
founded upon an adequate consideration, and made without his 
own concurrence, whereby a new and further time of payment is 
given to the principal debtor ; and this, though the liability of the 
drawer or indorser had previously become fixed and absolute, by 
due presentment, protest, and notice.'^ But mere neglect to sue 

^ Smith V. De Wniitz, Rj. & M. 212 ; Shaw v. Broom, 4 DowL & Ry. 780. 
> Story on BiUs, §§ 252, 265-268, 430-438. 

• Story on Bills, §§ 269, 270, 437. 

* Story on Bills, § 270 ; Sai^ent v. Appleton, 6 Mass. 85. 

« story on Bills, §§ 425-427 ; Chitty & Hulme on Bills, pp. 408-416 (9th ed.) ; 
Philpot V. Bryant, 4 Bing. 717, 721 ; Bank of United States v. Hatch, 6 Peters, 250 ; 
Mottram v. Mills, 2 San& S. C. 189 ; Greely v. Dow, 2 Met 176. 

such conditional assignment. Bond v, Leland, 4 Cnsh. (Mass.) 456; Stoddard v. 
Fitzpatrick, 4 Gray (Mass.), 89; Fisher v. Kimball, Id. 604. 



PABT lY.] BILLS OF EXCHANGE AND PB0MI8S0BT NOTES. 191 

the principal debtor, or a receipt of part payment from him, will 
not have this effect.^ This defence, however, may be rebutted on 
the part of the plaintiff, by proof that the agreement was made 
with the assent of the defendant ; or, that, after full notice of it, 
he promised to pay;^ or, that the agreement was without con- 
sideration, and therefore not binding.^ (a) 

§ 203. Competenoy of parties as witnesses. The competence/ of 
the parties to a bill or note, as untnesses, in an action upon it be- 
tween other parties, has been briefly considered in the preceding 
volume ; ^ where it has been shown that they are generally held 
admissible or not, like any other witnesses, according as they are 
or are not interested in the event of the suit. Thus, in an action 
against the acceptor of a bill, the drawer is a competent witness 
for either party ; for if the plaintiff recovers, he pays the bill by 
the hands of the acceptor, and if not, then he is liable directly for 
the amount.^ So, if a bill has been drawn by one partner in the 
name of the firm, to pay his own private debt, another member of 
the firm is a competent witness for the acceptor to prove that the 
bill was drawn without authority.^ But if the acceptance was 
given for the accommodation of the drawer, he is not a competent 
witness for the acceptor, to prove usury in the discounting of the 
bill, without a release.^ Nor is he competent, where the amount 
of his liability over, in either event of the suit, is not equal.^ 

§ 204. Same subject. So, also, in an action against one of several 
makers of a note, another maker of the same note is a competent 

1 Ibid. ; Kennedy v. Motte, 8 McCord, 13 ; Walwyn v, S. Qnintin, 1 6. & P. 652; 
Fnder v. Dick, 4 Rob. (Ia.) 249. 

* Chitty k Hulme on BiUs, pp. 416, 416 (9th ed.) ; Story on Bills, § 426. 

* McLemore v, PoweU, 12 Wheat 564. 

^ AfiU, vol. i. § 899. Whether a party to a ne^tiable instrament, which he has 
pat in circulation, is a competent witness to prove it void in its creation, quoBre ; and 
aee anU, vol. L §§ 388-886. 

* Dickinson v. Prentice, 4 Esp. 82 ; Rich v. Topping, Peake's Cas. 224 ; Lowber 
V. Shaw, 5 Mason, 241 ; Humphrey v. Moxon, 1 Peake's Cas. 72 ; Chitty & Hulme 
CD Bills, p. 678 (9th ed.); Storer v. Logan, 9 Mass. 55; Crowley v. Barry, 4 Gill, 194. 

* Ridley v. Taylor, 18 East, 176. 

7 Hardwick «. Blanchard, Gow, 113 ; Bui^gess v. Cuthil, 6 C. & P. 282. And see 
Bowne v. Hyde, 6 Barbi 8. C. 892. 

* Scott V. McLellan, 2 Greenl. 199 ; Jones v. Brooke, 4 Taunt 468 ; anU, yoL i 
I 401 ; Faith v, Mclntyre, 7 C. & P. 44. 

(a) Or that it was void under the stat- Draper v. Romeyn, 18 Barb. (N. T. ) 166; 

ate of frauds, and so not binding. Berry Wheeler v. Washburn, 24 Vt 298; Gree- 

9. Pollen, 69 Me. 101. The test is whether ley v. Dow, 2 Met (Mass.) 176. On this 

the agreement to give time or vary the question see the very able ai^s^ment of 

eontract in any other particular could Mr. Myers, in Re Goodwin, 6 Dill. 01 

hare been enforced against the creditor. Ct 140, p. 144. 



192 LAW OP ETIDENCE. [PABT IV. 

witness for the plaintiff, as he stands indifferent ; ^ but not for the 
defendant, to prove illegality of consideration.^ The maker is also 
a competent witness for the plaintiff, in an action bj the indorsee 
against the indorser.^ But it seems, that he is not competent for 
the defendant in such action, if the note was made and indorsed 
for his own accommodation ; for a verdict for the plaintiff, in such 
case, would be evidence against him.^ 

§ 205. 8ame subject The acceptor or drawee of a bill is also a 
competent witness, in an action between the holder and the drawer, 
to prove that he had no funds of the drawer in his hands, for this 
evidence does not affect his liability to the drawer.* And even 
the declaration of the drawee to the same effect, if made at the 
time of presentment and refusal to accept the bill, is admissible, 
as prima facie evidence of that fact, against the drawer.^ But it 
has been held, that a joint acceptor is not competent to prove a 
set-off, in an action by the holder against the drawer, because he 
is answerable to the latter for the amount which the plaintiff may 
recover."^ Nor is he a competent witness for the drawer to prove 
that he received it from the drawer to get it discounted, and de- 
livered it to the plaintiff for that purpose, but that the plaintiff 
had not furnished the money ; for, being absolutely bound, by his 
acceptance, to pay the bill, he is bound to indemnify the drawer 
against the costs of the suit.^ 

§ 206. Same subjeot. In an action by the indorsee against the 
drawer of a bill, the payee is a competent witness to prove the 
consideration for the indorsement.® The payee of a note, who 
has indorsed it without recourse, is also a competent witness to 
prove its execution by the maker .^*^ But where the note was pay- 

1 York V. Blott, 6 M. & S. 71. « Slegg v. Pliillipe, 4 Ad. & El. 852. 

« Venning v, Shuttleworth, Bayley on Bills, 422, [636,J [693] ; Fox v, Whitney, 6 
Mass. 118 ; Baker v. Briggs, 8 Pick. 122 ; Levi t>. Essex, 2 Esp. Dig. 707 ; ante, toL 
i. §§ 329, 400 ; Skelding v. Warren, 15 Johns. 270 ; Taylor v. McCune, 1 Jones, 460. 

* Pierce v, Butler, 14 Mass. 303 ; Van Schaack v. StafTord, 12 Pick. 565 ; Hubbly 
V. Brown, 16 Johns. 70. 

• Staples V, Okines, 1 Esp. 332; Legge v, Thorpe, 2 Campb. 310. 

• Prideaux v. Collier, 2 Stark. 57; aiUe, vol. i. §§ 108, 109. Ill, 118. 

7 Mainwaring v. Mytton, 1 Stark. 83; anU, vol. i. § 401. Sed qucere, for it seems 
that the acceptor would be liable to the drawer for the whole amount of the bill which 
he had not paid to the holder. Reid v. Fumival, 5 C. & P. 499; s. o. 1 C. & M. 538; 
Johnson v. Kennion, 2 Wils. 262. 

* Edinonds r. Lowe, 8 B. & C. 407; s. c. 2 M. & R. 427. 
» Shuttleworth v. Stephens, 1 Campb. 407, 408. 

^^ Rice V, Steams, 8 Mass. 225. Or that the note had been handulently altered, 
Parker v. Hanson, 7 Mass. 470; or fraudulently circulated, Woo<Uiull v. Holmee, 10 
Johns. 281. 



PABT lY.] BILLS OF EXCHANGE AND PBOldSSOBT NOTES. 198 

able to the payee or hearer^ the payee has been held inadmissible 
to prove the signature of the maker, on the ground that he was 
responsible, upon an implied guaranty, that the signature was not 
forged.^ 

§ 207. Same subjeot. In an action by the indorsee against the 
drawer or acceptor, an indarser is, in general, a competent witness 
for either parfy, as he stands indifferent between them.^ But an 
intermediate indorser of a bill is not a competent witness in a 
suit on the bill by a subsequent indorsee against a prior indorser, 
to prove notice of its non-acceptance.' Thus, under the general 
rule that the indorser, standing indifferent, is a competent witness, 
he has been admitted to prove payment;^ time of negotiation by 
indorsement ; '^ alteration of date by fraud ; ^ want of interest in 
tiie indorsee;^ usury;® and the fact of his own indorsement.^ 
So, to prove that the claim, which the defendant insisted on by 
way of set-off, was acquired by him after he had notice of the 
transfer of the note to the plaintiff.^^ And generally the payee, 
after having indorsed the note, is competent to prove any matters 
arising after the making of the note, which may affect the right 
of the holder to recover against the maker.^ 

1 Heirick V. Whituej, 15 Johns. 240; Shaver v. Ehle, 16 Johns. 201. 

* Bichardson v. AUen, 2 Stark. 884; Stevens v. Lynch, 2 Campb. 882; s. o. 12 
East, 88; Birt v, Kershaw, 2 East, 458; Charrington v. Milner, 1 Peake's Cas. 6; Beay 
V. Packwood, 7 AcL & El. 917; Chitty & Hulme on Bills, p. 674 (9th ed.). But see 
Barkins v, Wilson, 6 Cowen, 471. See further, ante, voL i. § 885, n., and §§ 899-401. 

* Talbot V, Clark, 8 Pick. 51; Cropper v. Nelson, 8 Wash. 125. Bat a prior in- 
dorser has been held a competent witness, for the defendant, in an action against a 
anbaequent indorser. Hall v. Hale, 8 Conn. 886. 

« Warren v. Merry, 8 Mass. 27; White v. Eibling, 11 Johns. 128; Bryant v. Bit- 
torbash, 2 N. H. 212. So in Louisiana, if the indorser has not been chaiged with 
notice. Bourg v, Bringier, 20 Martin, 507. 

* Baker v. Arnold, 1 Caines, 248; Baird v, Cochran, 4 S. & R. 897; Smith v. Lov- 
ett, 11 Pick. 417. 

* Parker v, Hanson, 7 Mass. 470; Shambuig v. Commagere, 10 Martin, 18. 
' Barker v. Prentiss, 6 Mass. 480; Maynard v. Nekenris, 9 Barr, 81. 

s Tathill V, Davis, 20 Johns. 287; Tucker v. Wilamonicz, 8 £ng. 157. 
9 Bichardson v, Alkn, 2 Stark. 884. 
^ Zeigler v. Gray, 12 S. & R. 42. 

^ See the cases already cited in this section; also Powell v. Waters, 17 Johns. 176 ; 
HcFadden v. Maxwell, Id. 188. In several of the United States, all the parties liable 
on a bill or note may be sued in one action; in which case, however, the parties are re- 
spectively entitled to the testimony of any other parties defendant in the suit, in the 
same manner as if they had been sued in several actions. See WiBConain Bcrv. Staf. 
1849, c. 98, SS 9> ld» 20; Michigan Rev. Stat. 1846, c 99, SS ^f 12, 17. 



VOL. n. 18 



194 LAW OF EYIDENCB. [PABT lY. 



CARRIERS. 

§ 208. Canlan by land and water anbjeot to same liabilities. 
There is no distinction, in regard to their duties and liabilities, 
between carriers of goods bj water and carriers hj land, nor be- 
tween carriers hj ships, steamboats, and barges, and bj railroad 
cars and wagons. The action against a carrier in anj of these 
modes is usually in (uwmpnt upon the contract ; and this is gen- 
erally preferable, as the remedy in this form survives against his 
executor or administrator. The declaration involves three points 
of fact, which the plaintiff must establish, upon the general issue, 
— namely, the contract ; the delivery of the goods, or, in the case 
of a passenger, his being in the carriage; and the defendant's 
breach of promise or duty. Carriers are also liable in trover, for 
the goods, and in case, sounding in tort, for malfeasance or mis- 
feasance ; but altliough the remedy in tort is on some accoimts 
preferable to a99ump9it^ (a) the form of action does not very 
materially affect the evidence necessary to maintain it. 

1 See 1 Chitty <m Plead. 161, 162 (7th ed.) [126, 126]; Gk>7ett v. Badnidge, 8 
East, 70. 

(a) Trover will not lie against a com- who innocently reoeiTes goods from a 

mon carrier for non-feasance only. Bow- wrongdoer, without the consent of the 

lin V. Nye, 10 Gush. (Mass.) 416; Collins owner, express or implied, has no lien 

V, B<i8ton & M. R. R., Id. 610; Scoville v. npon them for their carriage, as against 

Griffith, 2 Keman (N. Y.), 509. There such owner. Robinson v. Baker, 5 Cnsh. 

must be a previons demand. Robinson v. (Mass.) 187 ; Fitch «. Newberry, 1 Dong. 

Austin, 2 Gra^ (Mass.), 564. And where (Mich.) 1. 

a carrier, having no legal claim npon the The distinction between assnmpnt and 

iroods except for the freight, rafases to de- case is now generally unimportant, by rea- 

Uver them unless a further sum should be son of the changes in the modes of pleading, 

first paid, the consignee is not bound to Cf. Hutchinson on Carriers, § 737 et acq. 

tender the freight money, and the carrier's When the form of declaration is only on 

refusal to deliver is evidence of a conversion the liability of a common carrier, the plain- 

ofthem. Adams «. Clark, 9 Cush. (Mass.) tiff cannot recover for losses happening 

217; Rooke V. Midland R. Co., 14 Eng. Law from miarepresenUUioru of the defendant's 

A Eq. 175. The receipt by the owner of agent Maslin v. Bait & Oh. R. R. Co., 

the whole number of casks of goods shipped 14 W. Ya. 180. When a common carrier 

does not prevent him from maintaining an refuses to cany goods, as in the case of 

action against the carrier for a loss of part his emplovees striking, and leaving him 

of their contents, unless he receives the unable to nandle the freight, the shipper's 

property as and for a compliance with the remedy is by an action at law, not by 

contract of the carrier. Alden v. Pearson, mandamus. People v. New Yorl^ &e.R.B. 

8 Gray (Mass.), 842. A common carrier, Ca, 22 Hun (N. Y.) 588. 



PABT IT.] CARRIERS. 195 

§ 209. Contraot to be proved as laid. In any form of action, 
the eantract must be proved as laid in the declaration.^ If the 
contract is stated as absolute, proof of a contract in the altema- 
tive will not support the allegation, even though the option has 
been determined ;2 neither will it be supported by proof of a 
contract containing an exception from certain classes of liability ; 
as, for example, that the carrier will not be responsible for losses 
by fire, perils of the seas, or the like.* But if the exception does 
not extend to the obligation of the contract itself, but only affects 
the damages to be recovered, the declaration may be general, with- 
out any mention of the exception, the proof of which at the trial 
will be no variance, (a) Tlius, where the action was in the com- 
mon form of asiumpsit^ and the evidence was, that the carrier 
had given notice that he would not be accountable for a greater 
sum than £5 for goods, unless they were entered as such and paid 
for accordingly, the variance was held immaterial.^ And if, in a 
like form of action by the consignor of goods, the allegation is, 
that the consideration or hire was to be paid by the plaintiff, and 
the evidence is, that it was to be paid by the consignee, it is no 
variance; the consignor being still in law liable.^ A variance 
between the allegation and proof of the termini will be fatal.® (i) 
But here, the place, mentioned as the terminiM, is to be taken 
in its popular extent, and not strictly according to its corpo- 
rate and legal limits; and therefore an averment of a contract 
to carry from London to Bath, is supported by evidence of a 
contract to carry from Westminster to Bath J But in an action 

1 Ireland v. Johnson, 1 Bing. K. G. 162; Bretberton v. Wood, 8 B. & B. 54; Ubx 
V. Roberts, 12 East, 89. 

« Penny v. Porter, 2 Esst, 2; Yate v. Willan, Id. 128; ante, vol. i. §§ 68, 66; Hilt 
V. Campbell, 6 Oreenl. 109. 

* Latham v, Rutley, 2 B. & C. 20. And see Smith v. Moore, 6 Greenl. 274; Fer- 
guson V. Cappean, 6 H. & J. 3^4. 

* Clark V, Gray, 6 East, 564. 

» Moore V. Wilson, 1 T. R. 659; Tumey v, Wilson, 7 Yerg. 840; Moore v. Sberi- 
dine, 2 H. & McH. 458. If tJbe declaration is on a loss by negligent carrying, it will 
not be supported by proof of a loss in the defendant's warehouse, before the goods 
were taken to the coach to be carried. Roskell v, Waterhouse, 2 Stark. 461; In re 
Webb, 8 Tannt 448; s. c. 2 Moore, 500. 

* Tucker v, Cracklin, 2 Stark. 885. 

' Beckford v. Crutwell, 1 M. * Bob. 187; s. c. 6 C. & P. 242; Ditcham v. Chivis, 
4 Bing. 706; s. c. 1 M. & Payne, 785. See also Burbige v. Jakea, 1 B. & P. 225. 

(a) Feivnson v. Cappeau, 6 H. & J. shipped at any other time than that men* 

894; Fairchild v. Slocnm, 19 Wend. (N. tioned in the writ. Witzler v. Collins, 70 

Y.) 829; Tnggle v, St. Louis, &c.R.R.Co., Me. 290. 

62 Mo. 425; Lawson, Carriers, p. 380. (b) Fowles v. Great Western R. Co., 16 

Bat no evidence is admissible of goods Eng. Law & £q. 581. 



196 LAW OP BVIDBNCB. [PABT IV, 

on the case for non-delivery of goods, the termintM a quo is not 
material.^ 

§ 210. Proof that defendant Is common oanier proves contract. 
If the defendant is alleged and proved to be a common carrier^ the 
law itself supplies the proof of the contract, so far as regards the 
extent or degree of his liability. But if he is not a common 
carrier, the terms of his undertaking must be proved by the 
plaintiff. And in either case, where there is an express contract, 
that alone must be relied on, and no other can be implied.^ If it 
appears that the goods were delivered by the owner to one common 
carrier, and that he, without the owner's knowledge or authority, 
delivered them over to another, to be carried, this evidence will 
support an action brought directly against the latter, with whom 
the contract will be deemed to have been made through the agency 
of the former, ratified by bringing the action.^ (a) 

1 Woodward v. Booth, 7 B. & C. 801. 

< Robinson v. Dunmore, 2 B. & P. 416; 2 Steph. N. P. 994, 995. 

' Sanderson v, Lamberton, 6 Binn. 129. The declaration against a common carrier 

is as follows: ** For that whereas the said {defendant), on , was a common carrier 

of goods and chattels for hire, from to ; and being such carrier, the plaintiff 

then, at the request of the said {defendant), caused to be delivered to him certain goods 

of the plaintiff, to wit [here describe thetn], of the value of , to be taken care of and 

safely and securely conveyed by the said {defendant), as such carrier, from said to 

said , there to be safely and securely delivered by said {defendant) to the plaintiff 

(or, to , if the caae is so), for a certain reward to be paid to the said {defendant); 

in consideration whereof the said {defendarU), as such earner, then received said goods 
accordingly, and became bound by law, and undertook and promised the plaintiff to 
take care of said goods, and safely and securely to carry and convey the same from 

said -: to , and there to deliver the same safely and securely to the plaintiff {or, 

to ), as aforesaid. Yet the said {defendant), did not take care of said goods, nor 

safely and securely carry and convey and deliver the same as aforesaid; but, on the 
contrary, the said {defendant) so nef(ligently conducted and so misbehaved in regard to 
said goods in his said calling of common carrier, that by reason thereof the said goods 
became and were wholly lost to the plaintiff." 

Against a private carrier, chaiged with the loss of goods by negligence, the declara- 
tion in assumpsit is as follows: — 

''For that on , in consideration that the plaintiff, at the request of the said 

{defendant), had delivered to him certain goods and chattels, to wit [Jiere describe 

them], of the value of , to be safely conveyed by him from to , for a 

certain reward to be paid to the said (defendant), he the said {defendant) promised the 

Slaintiff to take good care of said goods, while he had charge of the same, and with 
ue care to convey the same from to aforesaid, and there safely to deliver the 

same to the plaintiff {or, to as the case may be). Yet the said {defendant!) did not 

take due care of said goods while he had charge of the same as aforesaid, nor did he 

(a) The English cases hold that the v. Collins, 7 H. L. 194. Scothom v. S. 

shipper of goods can sue only that carrier Staffordshire K. Co., 8 Ex. 841 ; Crouch 

witn whom he makes the contract and to v. Great Western R. Co., 2 H. & N. 491; 

whom he delivers the goods, on the ground Lawson, Carriers, p. 351 et seq. But cf. 

that there is a want of privity of contract Hall v. N. E. R. Co., L. R. 10 Q. B. 437. 
between the shipper and any connecting In the United States, however, the rule 

company. Coxon v. Great Western R. Co., is different. It has been held that a rail- 

5 H. & !n. 274; Bristol & Exeter R. R. Co. road company receiving goods for transpor- 



PART IV.] CARRIERS. 197 

§ 211. Who Is oommon oanier. The defendant is proved to be 
a common carrier^ by evidence that he undertakes to carry for per- 

with dne care convey and deliver the aame as aforesaid; but on the contrary, so care- 
leasly and improperly conducted in regard to said goods, that by reason thereof they 
became and were wholly lost to the plaintiff." 

In England, it has been held that when a railway company takes into its care a 
parcel directed to a narticular place, and does not bv a positive agreement limit its 
liability to a part only of the distance, it is prima facU evidence of an undertaking 
to carry the parcel to the place to which it is directed, although that place be beyond 
the limits within which the company, in geuei-al, professes to carry on its business as 
a carrier. Muschamp v. Lancaster & P. J. Railwav, 8 M. & W. 421. This decision 
was followed in Watson v. Ambeigate, N. & B. Railwav, 3 Eug. Law & £q. 497. See 
also Scothom v. S. Staffordshire E. Co., 18 Id. 558. But see cases in 1 Gray, 6 Hill, 
18 Vt., and 22 Conn., suprtk. 

Where it is the general custom of a carrier to forward by sailing-vessels all goods 
destined for points beyond the end of his line, he is not liable for not forwarding a par- 
ticular article by a steam-vessel, unless the direction to do so is clear and unambigu- 
ous. Simkins v, Norwich, &c. Steamboat Co. 11 Cush. 102. 

A railroad company, as a common carrier of merchandise, is responsible as a common 
carrier, until the goods are removed from the cars at the place of delivery, and placed 
on the platform. If for any reason they cannot then be delivered, or if, for any rea- 
son, the consignee is not there ready to receive them, it is the duty of the company to 
store them and preserve them safely under the chan;e of competent and faithful ser- 
vants, readv to be delivered, and actually to deliver them, when duly called for by the 
parties authorized to receive them. For the performance of these duties, after the 
ffoods are delivered from the cars, the company is liable as a tcarehxniseman^ or as a 
keeper of goods for hire. Thomas v, Boston & Pro v. R. B., 10 Met. 472; Norway 
Plains Co. V, Boston & M. B. B., 1 Gray, 263; Gibson v. Culver, 17 Wend. 806; Miller 
V. Steam, &c. Co., 13 Barb. -861. See also Garside v. Trent & Mers. Nav., 4 T. B. 581; 
Uyde V. Same, 5 Id. 889; Webb's Case, 8 Taunt 448. (a) 

(a) As to the termination of a carrier^s Liv., N. T., & Phila. St. Co., 46 N. Y. 
responsibility as insurer, the cases differ, 578 ; Moses «. B. & M. B. B. Co., 82 
some holding, as above, that the removal N. H. 528 ; Winslow v. Vt. k Mass. 
of the goods from the car or landing-place, B. B. Co., 42 Vt. 700 ; Graves v. Hart, 
at their destination, discharges him from & N. V. St. Co., 88 Conn. 143. Custom 
responsibility as a carrier, and changes may modify the liability. McMaster v, 
his liability to that of a warehouseman. Pa. B. R. Co., 69 Penn. St. 874. Where 
Shepherd v, Bristol & Ex. B. B. Co., L. B. the carrier is to deliver to a connecting 
8 Exch. 189; Bryan v, Paducah R. R. Co., line, his responsibility as carrier holds till 
11 Bush (Ey.), 597 ; Shenk v. Phila. St. the delivery; and a provision in the char- 
P*n>p., 60 Penn. St. 109. See also 2 Am. ter, limiting their liability to that of ware- 
Law Rev. 426. And this without notice housemen, after deposit in their warehouse, 
to the consignees. Norway Plains Co. v. was held to refer only to goods which 
Boston & M. R. R., 1 Gray (Mass.), 268. had reached their destination. Mich. Cen. 
But see Michifinn Cent. R. B. v. Ward, B. B. v. Min. Spr. Manuf. Co., 16 WalL 
2 Mich. 538; Goold v, Chapin, 10 Barb. (U. S.) 818. If the delivery is to be "on 
(N. Y.) 612; 13 Id. 361. Others, how- board," the carrier is liable as carrier if 
ever, hold that the carrier's liability con- the goods are burnt in his warehouses be- 
tinues till the consignee has notice and a fore delivered on board. Moore v. Michi- 
reasonable time to remove. Bedmond v. gan Cent. B. B., 8 Mich. 23. 



tation to a place situated beyond the line time, to the other railroad. Nutting v. 

of its own road on another road which Conn. River R. R., 1 Gray (Mass.), 502. 

connects with its own, (with which it has See also Van Santvoord 0. St. John, 6 Hill 

no connection in business) but taking pay (N. Y.), 157, reversing the decision of 

for the transportation over its own road the Supreme Court in St. John v. Van 

only, is not liable, in the absence of any Santvoord, 25 Wend. 660, and explain- 

special contract, for the loss of the goods ing Weed v, Saratoga & S. R. R., 19 

after their delivery, within a reasonable Wend. 584; Hood v. New York & N. H. 



198 LAW OV EYIDENCE. [PABT IV. 

sons generally, exercising it as a public employment, and holding 
himself out as ready to engage in the transportation of money or 
goods for hire, as a business, and not as a casual occupation.^ (a) 

1 Story on Bailm. f 496. 

R. R. Co., 22 Conn. 1; Elmore v. Nauga- H. & N. 987; Van Buskirk v. Roberts, 31 

tack R. R. Co., 23 Id. 457; Fanners' & N. Y. 661. The company which loses 

Mech. Bank v, Chaniplain Transportation baggage checked through is liable for the 

Co., 16 Vt. 52, 18 Id. 140, 23 Id. 209, loss of the baggage. C, H., &c. R. R.Co. 

214, and note by Redfield, J. The gene- v, Fahey, 52 IlL 81. And so also is the 

ral rule in the United States is in accord company which issues the check. Bar- 

with these decisions, and is that when a rell v. N. Y. Cen. R. R. Co., 45 N. Y. 

carrier receives goods marked for a par- 184. 

ticular destination, beyond the route for If an arrangement is made between sey- 

which he professes to carry, and beyond eral connecting railroad companies, by which 

the tenninus of his road, he is only bound goods to be carried over the whole route shaU 

to transport and deliver them to the next be delivered by each to the next succeeding 

carrier according to the established usage company, and such company so receiving 

of his business, and is not liable for losses them shall pay to its predecessor the 

beyond his own line. Clyde v. Hubbard, amount already due for the carriage, and 

88 Pa. St. 358; Detroit, &c. R. Co. v. Mc- the last one collect the whole from the 

Eenzie, 48 Mich. 609; McCarthy v, Terre ccmsignee, a reception of such goods by 

Haute, &c. R. Co., 9 Mo. Ap. 159; Railroad the last companjr, and a payment by it of 

Co. V, Pratt, 22 Wall. (U. S.) 123; Stewart the chai^ of its predecessors, will not 

V. Terre Haute, &c. R. Co., 1 McCr. C. Ct render it liable for an injury done to th« 

312; Camden, &c. R. R. v, Forsyth, 61 Pa. goods before it received them. Darling «l 

St. 81; Packard v. Taylor, 85 Ark. 402; B. & W. R. R. Co.. 11 Allen (Mass.), 295. 

Burroughs v. Norwicli, Ac. R. Co., 100 (a) Fuller r. Bradley, 25 Penn. St. 120; 

Mass. 26; Converse v. Norwich R. Co., 33 Russell v. Livingston, 19 Barb. (N. Y.) 346. 

Conn. 166; Lawson, Carriers, p. 351 ^ sea. In an action against a street-railway cor- 

In some states, however, he is held liable poration to recover for the loss of a box 

for any loss whether on his line or on a of merchandise delivered to them to be 

connecting line. Mobile v. Girard R. Co., carried for hire on the front platform of 

63 Ala. 219; £rie R. Co. v. Wilcox, 84 IlL one of their cars, the plaintiff, for the pur- 

239; Illinois, &c. R.R.Co. v. Frankenboi^, pose of showing them to be common car- 

54 111. 88; Mulligan v. Illinois, &C.R.R.C0., riers of goods, may prove that other persons 

36 Iowa, idl; Cuttsv. Brainerd, 4*2 Vt. 566. had paid money to their conductors, with 

But if there is evidence in the contract or the knowledge of their superintendent, for 

agreement of an intention on the part of the carriage of merchandise by them; and 

the carrier to enlarge this liability, the evidence that two other persons had paid 

American cases hold that the first carrier money at other times to the defendants' 

will be liable for all. Philadelphia, &c. R.R. conductors for the transportation of mer- 

Co. V. Ramsey, 89 Pa. St 474. This inten- chandise, with the knowledge of the sup- 

tion may be shown by receiving pay for erintendent of the road, in the absence of 

the whole transportation. Detroit, &c. R. anything to control or contradict it, would 

Co. V. McKenzie, 43 Mich. 609; Clyde v. be sufficient to warrant the jury in finding 

Hubbard, 88 Pa. St 358. But compare that the defendants had assumed to be and 

Hadd V. U. S., &c Express, 52 Vt. 335. were common carriers. Levi v, Lynn & 

So where the firec company gave a ticket, Bosd^n R. Company, 11 Allen (Mass.), 300. 

and took pay through, it has been held to Whether the persons engaged in towinff 

be responsible throughout the entire route, boats are considered common carriers, and 

Weed V. Saratoga, &c R.R.C0., 19 Wend, should be held responsible as such for the 

534. See Noyes v. Rutland & B. R. R. boats towed and cargo, ^iMsre. A^moreo. 

Co., 27 Vt 110. But it has also been Penn. S. T.& Trans. Co., 4 Dutch. (N.J.) 

held that where a carrier, the first of 180. Proprietors of hacks are common 

several connecting lines, sells a through carriers and bound to exercise the greatest 

ticket with coupons, the seller is not re- diligence. Bonce v, Dubuque Street R.R. 

sponsible for injuries happening at a point Co., 53 Iowa, 278. 

beyond its own line. Railroad Co. v. A keeper of a public-house in the 

Spravberry, Sup. Ct. Tenn. 1874. But neighborhood of a railway station gave 

see 6reat Western R. R. Co. v. Blake, 7 public notice that he would furnish a free 



PART lY.] CABRIBB8. 199 

This description includes both carriers by land and bj water; 
namelj, proprietors of stage wagons, coaches, and railroad cars, 
truckmen, wagoners, teamsters, cartmen, and porters ; as well as 
owners and masters of ships and steamboats, carrying on general 
freight, and lightermen, hoymeu, barge-owners, ferry-men, canal- 
boatmen, and others, employed in like manner.^ But hackney- 
coachmen, and others, whose employment is solely to carry 
passengers, are not regarded as common carriers in respect of 
the persons of the passengers, but only as to their baggage, and 
the parcels which they are in the practice of conveying.^ Nor is 
evidence that the defendant kept a booking-office for a consider- 
able number of coaches and wagons sufficient of itself to prove 
him a common carrier.^ 

§ 212. Contract must be between plaintiff and defendant. The 
contract must also appear to have been made with the plaintiff 
and by the defendant. If, therefore, the goods were sent by the 
vendor to the vendee, at the risk of the latter, the contract of 

^ story on Bailm. f f 496, 497. > Story on Bailm. $9 id8, 499, 590-604. 

s Upston V. Slark, 2 C. & P. 698. 

oonveyuice to and from the can to all tms- from place to place, in conveyances owned 
aengers, with their baggage, travelling by others, are not liable as common ear- 
thereby, who should come to his house as ners, but as bailees for hire to forward 
guests, and for this purpose employed the goods by the ordinary modes of conv^- 
proprietors of certain carriages to take all ance. Hersfield v. Adams, 19 Barb. (N. x.) 
sacfi passengers free of charge to them, 677. And a sleeping-car company has been 
and to convey them and their baggage to held not to be a common earner. Blum v. 
his house. A traveller by the cars, to S. Pullman Palace Car Co., 1 Flip. C. Ct. 
whom this arrangement was known, em- 600; Pullman Palace Car Co. v. Smith, 78 
ployed one of the carriages thus provided 111. 860. 

to take him and his ba|^;age to such pub- Although it has been intimated (Mc- 

lie-house, and his baggage was lost or Andrews «. Electric TeL Co., 17 C. B. 8), 

stolen on the way, through a want of due and even expressly held, that telegraph 

care or skill on the part of the proprietor companies are liable to the same extent as 

of the carriage or his driver, and the common carriers (Parks v. At. & Cal. Tel. 

keeper of the iiouse was held liable there- Co., 18 C"]. 422), it seems to be now fl;en- 

for, either as an innkeeper or as a common erally agreed that such is not the kw; 

carrier, it being immaterial which. Dickin- some cases holding them liable only for 

son 9. Winchester, 4Cush. (Mass. ) 114. So reasonable diligence and skill (Leonard v. 

when a railroad company allowed shippers N. Y. A. & B. Tel. Co., 41 N. Y. 644; 

of cattle to travel on a free pass, to take Kitten house v. Tel. Co., 44 N. Y. 268; 

care of the cattle, for which freight was paid, EUb v. Am. Tel. Co., 18 Allen (Mass.), 

the company was held liable as a carrier. 226 ; West. Un. Tel. Co. «. Carew, 16 

Maslin v, Bialtimore, &c. K. R. Co., 14 W. Mich. 626); and others holding them lia- 

Ya. 180. But this liability may be avoided ble for the greatest diligence and skill (N. 

bv a stipulation in the pass that the trav- Y. k Mob. Tel. Co. v. Dryburg, 36 Penn. 

elling is at the risk of the passenger. Mc- St 298; Stevenson v, Montretd Tel. Co., 

Cawky V. Fumess R. Co., L. R. 8 Q. 16 U. C. 680). And they may limit their 

Bb 67; Sutherland v. Great West. R Co., responsibility by any reasonable conditions. 

7 Dp. Can, C. P. 409; Alexander v. To- Wolf v. West Un. Tel. Co., 62 Penn. St 

lonto R. Co., 86 Up. Can. Q. B. 463. 83. See Hutchinson on Carriers, $ 47 €l 

Expressmen who forward goods for hire aeg., and Lawson, Carriers, } 1. 



200 LAW OP BVIDENCB. [PABT IV. 

the carrier is with the vendee, whose agent he becomes hy re- 
ceiving the goods, and who alone is entitled to sue ; unless the 
vendor expressly contracted with the carrier, in his own behalf, 
for the payment of the freight ; or the property was not to pass 
to the vendee until the goods reached his hands ; in which case 
the vendor is the proper plaintiff.^ (a) If goods are ordered by 
the vendee, but no order at all is given in regard to sending them ; 
and yet the vendor sends them by a common carrier, by whom 
they are lost ; the carrier in such case is the agent of the vendor 
alone, and the action for the loss is maintainable by him only.^ 
So, where the goods were obtained of the vendor by a pretended 
purchase, by a swindler, who got possession of them by the negli- 
gence of the carrier; as no property had legally passed to the 
consignee, the carrier's implied contract was held to be with the 
vendor alone.^ If the transaction was had with the mere servant 
of the carrier, such as a driver or porter, the contract is legally 
made with the master ; unless the servant expressly undertook to 
carry the parcel on his own account ; in which case he is liable.* (J) 
And it is sufficient if the goods were delivered to a person, and 
at a house where parcels were in the habit of being left for the 
carrier.^ (<j) 

1 Dawes v. Peck, 8 T. R. 880, 882; Hart v. Sattley, 8 Cainpb. 528; Moore v. Wfl- 
son, 1 T. R. 659; Davis v. James, 5 Burr, 2680; Sargent v, Morris, 8 B. & Aid. 277. 
^ CkMits V. Chaplin, 8 Ad. & £1. N. s. 483. And see Freeman v. Birch, Id. 491, XL 
s Duff V. Budd, 8 B. & B. 177; Stephenson v. Hart, 4 Bing. 476. 
^ Williams v. Cranston, 2 Stark. 82. 
> BorreU v. North, 2 C. & K. 681. 

(a) A earner may presume, in the ab- Co., 85 Me. 55. A servant travelling 

sence of some notice to the contrary, that with his master on a railway may have an 

the consignee is the owner. Sweet v, action in his own name against the railway 

Barney, 23 N. Y. 835. And in an action company for the loss of his lugffage, af- 

by the consignor for non-delivery to the though the master took and paid for his 

consignee, the complaint was held bad on ticket. Marshall v. York, &c. BaUway 

demurrer, because there was no allegation Co., 7 £ng. Law & £q. 5i9 ; Burrell v. 

that the ownership of the goods was still North, 2 C . & E. 681. 
in the consignor, and that the carrier (c) To render the carrier liable when 

knew it Pennsylvania Co. v. Holdennan, the delivery is to a servant, such servant 

69 Ind. 18. must have authority to accept the goods; 

The bill of lading or receipt of the car- but this authority may be implied from 

rier is enough to establish such a prima the circumstances as well as ezprrased, i, e. 

fade case of ownership, as will enable a his employment, his care of certain kinds 

party to sustain an action. Arbuckle v. of goods, his position on the premises of 

Thompson, 87 Penn. St. 170. the carrier. G rover, &c. Co. v. Missouri 

(h) Where the bailee of property de- P.R.B. Co., 70Mo. 672; Mayall «. Boston, 

livers it to a common carrier lor transpor- &c. R. R., 19 N. H. 122. So, if he is 

tation, either the bailee or the bailor may handling baggage, a passenger may deliver 

maintain an action against the carrier for his ba^age to mm. Onimet v. Henshaw, 

its loss. Elkins v. mston & Maine R. R., 85 Vt. 605. A deck-hand on a ship is not 

19 N. H. 837 ; Moran «. Portland, &c. necessarily authorized to receive baggage 



PABT lY.] GABBIEBS. 201 

§ 218. Raoeipt If a receipt was given for the goods, it should 
be produced; and notice should be given to the defendant to 
produce his book of entries, and way-bill, if any, in order to show 

a delivery of the goods to him.^ The plaintiff should also prove 
what orders were given at the time of delivery, as to the carriage 
of the goods, and the direction written upon the package.^ If 

^ Where there are aeveral owners, bat the receipt mentions some of them only, it 
is still admissible evidence for them all, accompanied by proof of title in them all. 
Day V, Ridley, 16 Vt 48. 

s 2 Stark. £r. 200. 

or freight, bnt mast be shown to hare to the captain. See also 2 Bedfield on 

sach anthority; and the common hands, Railways, 11 ; Hutchinson on Carriers, 

or crew, of a vessel have no general aa- § 82, et seq. Immediately on an acceptance, 

thority, as agents of the owners, to receive bv the carrier or a duly authorized servant, 

ffoods. FotcI V, Mitchell, 21 Ind. 54 ; of the goods tendered, the liability of the 

Trowbridge v, Chapin, 23 Conn. 595, 20 common carrier begins. Hutchinson, 

Id. 854. And when common carriers ad- Carriers, § 82. This receipt of the goods 

▼ertise that a faithful special messenger is must be for immediate transportation, 

sent in charge of each express, this is not Jones v. Kew England, &c. S. d. Co., 71 

evidence that the messenger has authority Me. 56. So if a common carrier receives 

to receive freight. Thurman v. Wells, 18 goods into his own warehouse for the ac- 

Barb. (N. Y.) 500. commodation of himself and his customers. 

The deposit of a trunk in the usual so that the deposit there is a mere acces- 

place for passengers' baggage on a steam- sory to the carriage and for the purpose of 

boat is not a sufficient delivery, unless the facilitating it, his liability as a common 

owner of the trunk takes passage also, carrier begins with the receipt of the 

Wright V, Caldwell, 8 Mich. 51. In goods. Clarke v. Needles, 25 Penn. St. 

Chouteau v. Steamboat St. Anthony, 16 838 ; Grand Tower, &c. Co. v. Ullman, 

Md. 216, it is held that the act of the 89 111. 244. See Maybin i;. Railroad Co., 

captain of a boat, in taking bank-bills for 8 Rich. (S. C. ) 240. 

transportation, is not prima facU eyidence In case of several connecting lines, the 

of the liability of the boat as a common liability of the first does not terminate and 

carrier, but to render the boat thus liable, that of the second begin, till the actual 

it must be its usage to carry bills for hire, delivery of the goods to the second line is 

or the known usage of the trade that it complete. In order to secure the safety of 

should so carry them. See also Haynie v. the goods from the time at which they are 

Waring, 29 Ala. 263. The views of Mr. delivered into the hands of the first carrier. 

Justice Redfield are expressed in Farmers' until they are either delivered by the last 

ft Mechanics' Bank v. Champlain Trans- carrier to the consignee at the place of 

portatdon Co., 28 Vt. 186, 203, 204, where destination, or in default of such delivery 

it was held that it was not necessary to are placed in the warehouse of the last 

show by positive proof that the company carrier, by which act of storage his lia- 

consented that the captain of their ooat bility becomes changed, as has been pre- 

should carry money on their account in viously stated, to that of a warehouseman, 

order to hold the company reponsible for it is necessair that the liability of all the 

the loss of the money. The captain of the carriers should last till delivery to the next 

boat is to be regarded as the general agent succeeding carrier, even if the goods have 

of the owners, and prima fade the owners been deposited in a warehouse to await the 

are liable for all contracts for carrying, time when the next carrier should take 

made by the captain or other general them. RailroadCo. v. Manufacturing Co., 

aflent, for that purpose, within the powers 16 yTall. (U. S.) 818 ; Gass v. New York, 

of the owners themselves ; and the burden ftc. R. Co., 99 Mass. 220; 111. Cent R. R. 

rests upon them to show that the plaintiffii Co. v. Mitchell, 68 111. 471 ; Lawrence v, 

bad made a private contract with the cap- Winona R. R. Co., 15 Minn. 890 ; Mills 

tain, which it was understood should be v. Mich. Cent. R. R. Co., 45 N. Y. 622 ; 

kept from the knowledge of the defend- Hutchinson, Carriers, § 108. 
ULtA, or else had given credit exclosively 



202 LAW OF EVIDENCE. [PABT lY. 

the loss or non-delivery of the goods is alleged, the plaintiff must 
give some evidence in support of the allegation, notwithstanding 
its negative character.^ (a) And in proof of the loss, the declara- 
tion of the defendant's coachman or driver, in answer to an inquiry 
made of him for the goods, is competent evidence for the plaintiff.^ 
In proof of the contents of a lost trunk or box, it has been held 
that the plaintiff's own affidavit is admissible, where the case, 
from its nature, furnishes no better evidence.* (6) 

§ 214. Parties Jointly interested jointly liable. If several are 
jointly interested in the profits of a coach or wagon, whether it be 
owned bj one or all, thej are jointly liable, though, by agreement 
among themselves, one finds the horses and driver for one part of 
the road only, and another for another.^ If the declaration is in 
assumpsit^ a joint contract by all the defendants must be proved, 
by evidence of their joint ownership, or otherwise. And if the 
action is in torty setting forth the contract, the contract itself 
must be proved as laid; though, where the action is fomided 
on a breach of common-law duty, which is a misfeasance, and is 
several in its nature, as in an action against common carriers, 
upon the custom, judgment may be rendered against some only, 
and not all of the defendants.^ 

§ 215. Limitation of liabiuty. It is now well settled, that a 
common carrier may qualify his liability by a general notice to all 
who may employ him of any reasonable requisition to be observed 
on their part, in regard to the manner of delivery and entry of 
parcels, and the information to be given to him of their contents, 
the rates of freight, and the like ; as, for example, that he will 

1 Tucker v, Cracklin, 2 Stark. 385 ; Griffith r. Lee, 1 C. A P. 110 ; Day v. Ridley, 
1 Washb. 48. 

^ Ma^hew v. Nelson, 6 C. & P. 68. But proof of a loss will not alone rapport 
a count in trover. Ross v. Johnson, 5 Burr. 2825. 

* See ante, vol. i. § 348 ; David v. Moore, 2 Watts & Seig. 280. And see Butler 
V. Basinff, 2 C. & P. 613. In Clark v. Spence, 10 Watts, 335, it was thought by 
Ro^rs, J., that this rule applied with peculiar force to wearing-apparel, and other 
articles convenient for a traveller, which in most cases are packed by the party himself 
in his own trunk, and which would therefore admit of no other proof. But it has beat 
decided, in a recent case against a railroad company, for the loss of a traveller's trunk, 
that the plaintiff could not be a witness. Snow v. Eastern R. R. Co., 12 Met. 44. 

^ Waland v. Elkins, 1 Stark. 272 ; Fromont v. Coupland, 2 Bing. 170. And see 
Barton v. Hanson, 2 Taunt 49 ; HeUby v. Meers, 5 B. & C. 504. 

* Bretherton v. Wood, 8 B. & S. 54 ; Bank of Orange v. Blown, 8 Wend. 168. 
See ante, vol. i. § 64. 

(a) Woodbury v. Frink, 14 IlL 279. (b) Dibble v. Brown, 12 Ga. 217; Mad 

River, &c. R. Ca v. Fulton, 20 Ohio 818. 



PABT lY.] CARBIEBS. 208 

not be responsible for goods above the value of a certain sum, 
unless thej are entered as such, and paid for accordingly. But 
the right of a common carrier, by a general notice, to limit, restrictj 
or avoid the liability devolved on him by the common law on the 
most salutary grounds of public policy, has been denied in several 
of the American courts, after the most elaborate consideration ; ^ 
and therefore a public notice by stage-coach proprietors, that *' all 
baggage " was '* at the risk of the owners," though the notice was 
brought home to the plaintiff, has been held not to release them 
from their liability as common carriers.^ (a) Nor does such a 
notice apply at all to goods not belonging to any passenger in the 
coach.^ (b) But in other American courts it is held, that such 
limitations, under proper qualifications and safeguards for secur- 
iiig due notice to the traveller, or the party for whom the goods 
are to be transported, may be operative and binding on the 
parties.^ (c) 

^ Bat it is admitted in England. See Austin v. Manchester, &c. Railw. Co., 16 
Jar. 763; 11 Eng. Law & Eq. 506; Carr v. Lancasliire & Yorkshire Railw. Co., 7 Exch. 
707 ; 21 Law J. Exch. 261 ; 6 Monthly Law R. 222 ; 14 Eng. Law& Eq. 840. 

* HoUister v. Newlen, 19 Wend. 234 ; Cole i;. Goodwin, Id. 251 ; Jones v, Yoor- 
hees, 10 Ohio, 145 ; Story on Bailin. § 554 (2d ed.), n. ; Fisk «. Chapman, 2 Kelly, 
849 ; Sager v. Portsmouth Railroad Co., 81 Me. 228. The right of a common carrier 
in England to limit or affect his liability at common law is now restricted by Stat. 11 
G«o. iV. and 1 W. IV. c. 68, to certain enumerated articles, exceeding £10 in value, the 
nature and value of which must be declared at the time of delivery, and an increased 
charge paid or engaged ; the notice to that effect to be con.spicuously posted up in the 
receiving-house, which shall conclusively bind the parties sending, without further 
proof of its having come to their knowledge. But this statute, it seems, does not pro- 
tect the carrier from the consequences of nis own gross negligence. Owen v. Burnett, 
2 C. & M. 853. 

> Dwight V, Brewster, 1 Pick. 50. And see Camden & Amboy Railroad Co. v. 
Barke, 13 Wend. 611. But a special contract may always be shown by the carrier, 
in avoidance of his eeneral liability. Chippendale v, Lancashire, &c Itailw. Co., 15 
Jar. 1106 ; Story on Bailments, § 549. 

^ Brown v. Eastern Railroad Co., 11 Cash. (Mass.) 99, S. J. C. Mass., March, 1853, 
6 Monthly Law Rep. 217. And see Bingham «. R<M;er8, 6 Watts & Sei^. 495 ; Laing 
«. Colder, 8 Penn. St. 484 ; Swindler v. Uilliard, 2 Rich. 286. 

(a) Kimball v. Rutland R. R., 26 Yt. brought to the knowledge of the sender of 
247 ; Farmers', &c. Bank v, Champlain the goods and assented to by him, by this 
Trmna. Co., 28 Id. 186 ; Dorr v. x7ew means becoming a stipulation in the con- 
Jersey, &c. Co., 11 N. Y. 485 ; Coxe v. tract, is, if fair and reasonable, a binding 
Heisley, 19 Penn. St. 248 ; Davidson v* one. Railroad Co. v. Lockwood, 17 Wall. 
Graham, 2 Ohio St 181. (U. S.) 357 ; Merchants' Despatch Co v. 

{b) York Company v. Central Railroad, Leysor, 89 111. 43 ; Same v. .loesting, Id. 

8 Wall. (U. S.) 107. A special contract 152; Erie, &c. Transportation Co. v. Duter, 

lessening general responsibility will not ex- 91 lU. 195; Ashmore v. Penn. S. T. &c. 

ease ne^igenoe. Gk>ldey v. Penn. Railw., Co., 4 Dutch. (N. J.) 180. To prove 

80 Penn. St. 242. simply the posting of a general notice is 

(«) The general rule in the United States not therefore enough, the knowledge and 

VK that the limitation, if it does not attempt assent of the sender must also be proved, 

to free the carrier from the results of his or Brown v. Adams Exp. Co., 15 W. Ya. 812. 
his servants' negligence or fraud, and is The EngUsh rule, after originally deny- 



204 LAW OP EVIDENCE. [PABT TV. 

§ 216. Notloe of limitation. Burden of proof. But in every case 
of public notice, the burden of proof is on the carrier^ to show 
that the person with whom he deals is fully informed of its tenor 
and extent.^ (a) And, therefore, if any advertisement is posted 

1 Butler V. Heane, 2 Campb. 415» per Ld. EUenborough ; Kerr v. WiUan, 2 Stark. 
58 ; Macklin v, Waterhouse, 5 Bing. 212. 

ing the right of a common carrier to limit a carrier may limit his liability even for 

his liability in any way, and then allowing his own negligence. Dodson v. Grand 

him considerable latitude, has finally be- Trunk R. Co., 7 Can. L. J. N. s. 263. 

come more strict than that of the United As has been stated, the rule in most of 

States. Under the English statute 1 7 & the United States is, that carriers may i^ 

IS Yict. c. 81, § 7, the carrier can only strict their general liability, by notices 

restrict his common-law responsibility by brought home to the knowledge of the 

a reasonable limitation, whicn is embraced owner of the goods, before or at the time 

in a written contract signed by the party of delivery to the carrier, if assented to 

interested, or his agent, and such contract by the owner, which b but another form 

must either in itself, or by reference, set of defining an express contract, which 

out or embody the condition. A general seems to be ever3rwhere recognized as bind- 

notice only consented to by the party ina upon those contractinff with carriers, 

would be valid for limiting the common- 2 Kedneld on Railw. 78 ; Merchants* Des- 

law liability of the carrier ; but it must patch Co. t;. Leysor, 89 111. 43 ; DiUard 

under the statute be embodied in a formal v. Louisville, &c. B.R. Co., 2 Lea (Teun.), 

contract in writing, signed by the owner 288 ; New Jersey Steam Nav. Co. v. 

or person delivering the soods, and must Merchants' Bank, 6 How. (U. S.) 344. 

be decided to be reasonable by the court. See Moses v. Boston k Maine Railw., 4 

Peek V. North Staffordshire Railw. Co., 9 Fost. 71. And aeepost, § 218. 

Jur. N. 6. 914 ; 8. c. 10 H. L. Cas. 473. To this rule, the States of Iowa (Code, 

A condition exempting the carrier from 1873, §2184, p. 894) and Texas (Rev. Stat 

all responsibility is unreasonable; and so 1879, ai-t. 278, p. 48) furnish exceptions, 

IB a condition that the carrier shall not by statute, the carrier there not being al- 

be responsible for any damage unless lowed to limit his liability in any manner ; 

pointed out at the time of delivery by and also New York, where he may contract, 

the carrier. Lloyd v. Waterford k Lim- even to avoid the results of his own or his 

erick Railw. Co., 9 Law T. n. s. 89 ; 15 servants' negligeivce ox frauds if the inten- 

Ir. Com. L. 37 ; Allday v. Great Western tion to do so plainly appears in the con- 

Railw. Co., 11 Jur. M. s. 12. The burden tract. Spinetti v. Atlas S. S. Co., 80 N. Y. 

of showing the reasonableness of a con- 71; Knell v. U. S., &c. Steamship Co., 38 

dition annexed to the carrier's undertak- N. Y. Superior Court, 423 ; Wells v. New 

ing rests upon such carrier. Peek 9. North York Cent R.R.(^. 24 N. Y. 181; Bissell 

Staffordshire Railw. Co., tupra; 2 Red- v. Same, 25 Id. 442; Westcott v, Faigo, 

field on Railways, 95-98. 61 N. Y. 542 ; Lamb v. Camden, &c. R. 

Whether an express company is strictly Co., 46 N. Y. 271. 

a common carrier, so that it cannot stipu- Notices with regard to the value and 

late against liability for its own negli- character of the goods are favored by the 

^nce, or the negligence of its servants, courts, and the fact of their being posted 

IS an open question. For an able presen- in conspicuous places will justify a jury 

tation of the affirmative, see Railroad in finding assent on the part of the ship- 

CJompany v. Lockwood, 17 Wall. (U. S.) per. Oppenheimer v. U. S. Express Ca, 

857, and Judge Redfield's note to Bank of 69 III. 62 ; post, § 218, note (a) ; Lawaon, 

Kentucky v. American Express Co., 23 Carriers, p. 90. 

Am. Law Reg. 39 ; 8. c. 9 Am. L. Rev. {o) A distinction exists between the 

155, criticising the principal case which effect of those notices by a carrier which, 

holds the negative. See also Christenson seek to discharge him from duties which 

V, Am. Exp. Co., 15 Minn. 270, also in the law has annexed to his employment, 

the affirmative, which seems to be the view and those designed simply to insure eood 

supported by the great weight of author- faith and fair dealing on tiie part of Ms 

ity. employer. In the former case, there must 

The English statute above referred to be an assent by the employer ; in the 

hu not been adopted in Canada, and there latter, notice alone, if brought home to 



PART IT.] CABRIEBS. 205 

up, emblazoning in large letters the adyantages of the conveyance, 
but stating the limit of his liability in small characters, at the 
bottom, it is not sufficient.^ (a) It must be in such characters and 
situation, that a person delivering goods at the place could not 
fail to read it, without gross negligence ; and even then, it affects 
only those whose goods are received at that place ; for if received 
at a distance from the carrier's office, though at an intermediate 
point between the termini of his route, he must prove notice to 
the owner through some other medium.*^ And in an action against 
a carrier the defendant must satisfy the jury that the notice was 
actually communicated to the plaintiff. If it was posted up, or 
advertised in a newspaper, it must appear that he read it. In 
the latter case the advertisement affords no ground for an infer- 
ence of notice, unless it be proved that the plaintiff was in the 
habit of taking or reading the newspaper, in which it was inserted ; 
and even then, the jury are not bound to find the fact.^ In the 
case of notice posted up in the carrier's office, proof that the 
plaintiff's servant, who brought the goods, looked at the board 
on which the notice was painted, is not sufficient, if the servant 
himself testifies that he did not read it.^ 

1 Bntler v. Heane, 2 Campb. 415, per Ld. EUenborongh ; Eerr v. Willan, 2 Stark. 
58 ; Macklin v. Waterhouse, 5 Biog. 212. 

* Clayton v. Hunt, 3 Campb. 27 ; Gouger i;. Jolly, HolVs Cas. 817. 

* Rowley v. Home, 8 Bing. 2 ; 10 Moore, 247 ; Leeson v. Holt, 1 Stark. 186. 

« Eerr v. Willan, 2 Stark. 58 ; 6 M. & a 150 ; Davis v. Willan, 2 Stark. 279. The 

• 

the knowledge of the employer, will be Rawson v. Pa. R. R. Co., 48 N. Y. 212; 

sufficient. And if the employer take a Blossom v. Dodd, 43 N. T. 264; Parker v, 

receipt limiting the liability of the carrier South East. R. R. Co., L. R. 2 C. P. D. 

to a specified amount, unless the yalue of 416. 

the package be specially stated in the re- (a) 2 Redfield on Railw. 80 ; Yemer v. 
ceipt, he will be presumed to know its Sweitzer, 82 Penn. St. 208. A notice in 
contents, and to assent to its conditions, the English language, to a German ignor- 
Oppenheimer v. U. S. Exp. Co., 69 111. 62; ant of the English language, is not suffi- 
Befger v. Dinsmore, 51 a, Y, 166 ; Grace cient. Camden & Amboy R. R. v. Bal- 
V. Adams, 100 Mass. 505; Mulliffan v. IlL dauf, 16 Pa. St 67. A notice that a rail- 
Cent. R. R Co., 86 Iowa, 181. But as to road corporation "will not be liable for 
the presumption of assent, see Adams baggage of passengers beyond a certain 
£xp. Co. V. Stetaners, 61 IlL 184; Gott v. amount, unless,'* &c., printed on the back 
Dinsmore, 111 Mass. 45 ; Buckland v. of the passage- ticket, and detached from 
Adams Exp. Co., 97 Mass. 125 ; Blossom what ordinarily contains all that is ma- 
V, Dodd, 43 N. Y. 264 ; 111. Cent R. R. terial to the passenger to know, does not 
Co. V. Frankenbei^, 54 IlL 88. So, also, raise a legal presumption that the party at 
that a passenger will be presumed to know the time of receiving the ticket,^ and be- 
the conditions printed upon the ticket fore the train leaves the station, had 
which he receives. Steers v. Liv., N. Y., knowledge of such limitations and condi- 
& PhiL St Co., 57 N. Y. 1. But the tions. It is aauestion for the juij whether 
contrary is held in Henderson v. Steven- the plaintiff imew of the notice before 
son, decided in the House of Lords, June, commencing the journey. Brown v. Eost- 
1875; L. R. 2 H. li. (Sc) 470. See also em R. R., 11 Cush. (Mass.) 97. 



206 LAW OP EVIDENCE. [PABT IV. 

§ 217. Several notioee. Where there are Beveral notices^ the 
carrier must take care that they are all of the same tenor ; for if 
they differ from each other, he will be bound by that which is least 
favorable to himself.^ 

§ 218. Effect of notloe. If such notice is proved by the carrier, 
and brought home to the knowledge of the plaintiff, its effect may 
be avoided by evidence, on the part of the plaintiff, that the loss 
was occasioned by the malfeasance^ misfeasance^ or negligence of 
the carrier or his servants ; for the terms are uniformly construed 
not to exempt him from such losses.' (a) Thus, if he converts 
the goods to a wrong use, or delivers them to the wrong person, he 
is liable, notwithstanding such notice.^ So, though there be notice 
by a passenger-carrier, that '' all baggage is at risk of the owner,*' 
he will still be liable for any loss occasioned to the baggage by a 
culpable defect in the vehicle.* The effect of the notice may also 
be avoided by proof of a waiver of it, on the part of the carrier ; 
as, if he is informed of the value of the parcel, and is desired to 
charge what he pleases, which shall be paid if the parcel is taken 
care of; and he charges only the ordinary freight;* or, if he ex- 
pressly undertakes to carry a parcel of more than the limited value, 
for a specified compensation.^ But in all such cases of notice, the 
burden of proof oi the negligence, malfeasance, or misfeasance, or 
of the waiver, is on the party who sent the goods.*^ (6) 

printed conditions of a line of puUic coaches are sufficiently made known to pas- 
sengers by being posted up in conspicuous characters at the place where* they book 
their names. Ana where the handbill, containing such conditions, had been posted up 
four years before, and could not now be found, parol evidence of its contents was held 
admissible. Whitesell v. Crane, 8 W. & S. 869. 

1 Munn V. Baker, 2 Stark. 256; Cobden v, Bolton, 2 Campb. 108; Oouger v. Jolly, 
Holt's Cas. 817 ; Story on Builni. § 558. 

« story on Bailm. §§ 570, 571 (3d ed.) ; Wild v. Pickfoid, 8 M. & W. 461 ; New- 
bom V. Just, 2 C. & P. 76 ; Sager v. P. S. & P. Railw. Ca, 81 Me. 228 ; Ashmore v. 
Fenn. Steam Towing & Trans. Co., 4 Dutcher, 180. 

s Ibid. ; Wild v. Pickford, 8 M. & W. 443 ; Hawkins v. Hoffman, 6 Hill (N. T.), 
586. 

4 Camden & Amboy Railroad Co. t;. Burke, 18 Wend. 611, 627, 628 ; Story on 
Bailm. § 571 a. 

^ Story on Bailm. § 572 ; Wilson v. Freeman, 5 Campb. 527. In this case, how- 
ever, the carrier declared his intention to charge at a higher rate than for ordinaiy 
goods. 

* Helsb^ V. Mears, 5 B. & C. 564. Mere notice of the value of the parcel is not of 
itself sufficient to do away the effect of the general notice. Levi v. Waterhouaei 1 
Price, 280. 

7 Harris v, Packwood, 3 Taunt. 264 ; Marsh v. Home, 5 B. & C. 322. 

(a) See on this point, on/^ § 215, carrier, and of a demand and refusal 

note (a). of the goods, or of such loss of goods as 

(5) Proof of deliveiy of goods to the renders a demand useless, throws the 



PAST nr.] CARRIERS. 207 

§ 219. Defences. It is ordinarily a good defence for a private 
carrier, that the loss or injury to the goods was occasioned by 
inevitable accident; but a common carrier is responsible for all 
losses and damages, except those caused by the act of Ood, or by 
public enemies. By the act of Q-od is meant a natural necessity, 
which could not have been occasioned by the intervention of man, 
but proceeds from physical causes alone ; such as, the violence of 
the winds or seas, lightning, or other natural accident.^ (a) There- 
fore, if the loss happened by the wrongful act of a third person ; ^ 
or, by an accidental fire, not caused by lightning ; ^ (V) or, by the 

1 Per Ld. Mansfield, in Forward v. Pittard, 1 T. R. 27; Story on Bailm. §§ 25, 511; 
Prop*T3 Trent Na7. v. Wood, 8 Ema. 127, 131; Gordon v. Little, 8 8. & R. 553, 557; 
Colt V, McMechen, 6 Johns. 160; Hodgdon v. Dexter, 1 Cranch, 360; Abbott on Ship- 
ping, p. 250; 1 Bell, Comm. 489. 

> 8 Esp. 131, per Ashhuret, J. 

• Hyde v, Trent & Mersey Nav. Co., 6 T. R. 887; Forward v, Pittard, 1 T. B. 27. 

Imrden of evidence on the carrier to show has been held that the proof of delivery of 

that the loss of goods happened by canses the goods to the carrier, and an unexplained 

for which he is not liable. Alden v. Pear- non -delivery of the goods at the point of 

son, 8 Gray (Mass.), 842 ; Riley v. Home, destination, alone, is enough to raise a pre- 

5 Bing. 217. So, if he fails to deliver goods sumption of negligence. In American 

entmsted to him within a reasonable time, Express Co. v. Sands, 55 Pa. St. 140, the 

he is liable for the damage caused by the court savs : " There are numerous authori- 

delay, unless he shows there is no negli- ties to show that if goods are lost or dam- 

fnce on his part. Nettles v. RBiilroad Co., aged in the custody of the carrier under a 

Rich. (3. C.) 190. See 2 Redfield on special contract, and he gives no account 

Bailw. 7 ; Shriver v, Sioux City, &C.R.R. of how it occurred, a presumption of negli- 

Co., 24 Minn. 506. The burden of evl- fl«nce will follow ot course." And see 

denoe is then again shifted to the shipper Famham v. Camden, &c.R.R.Co., Id. 58; 

to prove that the loss was caused by the Westcott v. Farffo, 61 N. Y. 542; Magnin 

negligence of the carrier or some cause v. Dinsmore, 56 N. Y. 173; Riley v. Home, 

for which the carrier is liable. Lawson, 5 Bing. 217 ; Lawson, Carriers, § 178. 

Carriers, § 248 ; The Saragossa, 8 Woods, Whether proof of loss under such circum- 

C. Ct 880 ; Werthheinier v. Pennsylvania stances as show a theft by some one not 

R. R. Co., 17 Blatchf. C. Ct 421 ; Denton in the employ of the carrier is evidence 

V. Chicago, &C.R.R.C0., 52 Iowa, 161; Col- of negligence seems a disputed point. Sir 

ton «. Cleveland R.R. Co., 67 Pa. St. 211 ; William Jones (Bailments, §§ 38-40) thinks 

Famham v. Camden, &C.R.R.C0., 55 Pa. St. it is. Judge Story considers it not to be. 

53; Alden v. Pearson, 8 Gray (Mass.), 842; Story, Bailments, § 39. Ancrell (Carriers, 

Baltimore, &c.R.R.Cio. v. Bradv, 82 Md. § 48, note 1) thinks it is. In Massachn- 

838; Magnin v, Dinsmore, 56 N. Y. 178; setts, it is held not to be ; but it is neces- 

Lambv. Camden, ftc.R.R.Co., 46 N.Y. 271; sary to show that the goods were stolen 

Six Hundred and Thirty Casks, 14 Blatchf. by the negligence of the bailee. Mavo v, 

C. Ct 517; The Invincible, 1 Lowell, 225; Preston, 131 Mass. 804; Lamb v. Western 

Mayo V. Preston, 181 Mass. 304; Lamb v. R. Co., 7 Allen, 98. 
Western R. Co., 7 Allen (Mass.), 98; Hunt (a) The exception of the act of God, 

r. The Cleveland, 6 McLean, C. Ct. 76 ; or inevitable accident, has by the decisions 

The Peytona, 2 Curtis, C. Ct 21 ; Biasel of the courts been restricted to such nar^ 

V. Price, 16 IlL 408 ; Shaw v. Gardner, 12 row limits as scarcely to amount to any 

Gray (Mass.), 488; Tarbox v. East St. Co., relief to carriers. It is in reality limited 

50 Me. 539; Steamer Niagara v. Cordis, 21 to accidents which come from a force su- 

How. (U. S.) 7. Contra^ in W. Yiijinia ; perior to all human agency, either in their 

Brown v. Adams Express Co., 15 W. Ya. production or reristance. 2 Redf. onRailw. 

812. 4, and notes and cases cited. 

The question what constitutes proof of if) That an innkeeper is liable for loss 

mgligm» is important in such oases. It by fire without n^ligenoe on his part, 



208 LAW OP EVIDENCE. [PART IT. 

agency of the propelling power in a steamship ; ^ or, hy striking 
against the mast of a sunken vessel, carelessly left floating ; ^ or, 
by mistaking a light, — the carrier is liable.^ And if divers causes 
concur in the loss, the act of God being one, but not the proximate 
cause, it does not discharge the carrier.^ But where the loss was 
occasioned by the vessel being driven against a bridge, by a sudden 
gust of wind ; ^ or, by a collision at sea, without fault ; ® or, by be- 
ing upset in a sudden squall ; ^ or, by the vessel getting aground 
by a sudden failure of wind while tacking ; ^ or, by striking against 
a sunken rock, or snag, unknown to pilots ; ^ (a) in these and the 
like cases, the carrier, if he is not in f ault,^^ (i) has been held not 

^ Hale V. Kew Jersey Steam Nav. Co., IZ Conn. 639. 

' Smith V. Shepherd, Abbott on Shipping, pp. 252, 258. The owner of a vesael 
sank while in his possession, so as to obetract a public navigable river, who has with- 
oat any wrongful act relinquished the possession, is not, in ^1 cases, and for an indefi- 
nite time, bound to give notice, or take other means, to prevent damage from coming 
thereby to other vessels ; though it seems there may be circumstances in which the 
owner, even after a blameless relinquishment of the possession, may stiU be required 
to take care that other vessels be not ii^ured by smking against a sunken vesseL 
Brown v, Mallett, 12 Jur. 204. QtuBref therefore, whether, if the owner has aban- 
doned the possession and property, and taken all due care, but nevertheless a carrier 
vessel is lost by striking upon the sunken one, it is the act of God, or not. See 8 Am. 
Law Jour. n. 8. 221. 

« McArthur v. Sears, 21 Wend. 190. 

* Ewart V, Street, 2 Bailey, 157; Richards v. Gilbert, 5 Dav, 415; Campbell v. 
Morse, 1 Harper's Law, 468; Hahn v, Corbett, 2 Bing. 205. And see Gordon v. Lit- 
tle, 8 S. & R. 533; Hart v. Allen, 2 Watts, 114; Jones v. Pitcher, 8 Stew. & Port. 
135; Sprowl v. Kellar, 4 Stew. & Port. 882; New Brunswick Co. v. Tiers, 4 Zabr. (N. 
J.) 697; Fergusson v. Brent, 12 Md. 9. 

B Amies v, Stephens, 1 Stra. 128. 

Buller V, Fisher, Peake, Add. Cas. 183. 

7 Spencer v. Daggett, 2 Vt. 92. So if thrown over in a storm, for preservation of 
the ship and passengers. Smith v, Wright, 1 Caines, 43. 

8 Colt V, McMechen, 6 Johns. 160. 

Williams v. Grant, 1 Conn. 487; Smyrl v. Kiolon, 2 Bailey, 421; Turner v. WU- 
8on, 7 Yeiger, 840; Baker v. The Hibernia, 4 Am. Jur. n. b. 1. 

^ Williams v. Bransen, 1 Murph. 417; Spencer «. Daggett, 2 Vt. 92; Marsh v. 
Blythe, 1 McCord, 860. 

though formerlv held, is now denied. (b) In Reed v. Spaulding, 80 N. Y. 
Memtt V, Claghom, 28 Vt. 177; Vance 680, when goods were damaged by a flood 
V. Throckmorton, 5 Bush (Ky.), 42; Cut- rising higher than ever before, and which 
ler V. Bonney, 80 Mich. 259. it was no negligence not to have antici- 
(a) Where a violent storm caused an pated, and from which the goods could not 
unusually low tide, and the carrier's baige, oe delivered after the extent of the rise 
lying at the pier which he used, was was seen, it was held to have occurred by 
pierced by a projecting timber, covered at the act of God, unless the carrier was in 
ordinary tides, and not known by the car- fault in not having sooner sent the goods 
rier to exist, he was held liable, although to their destination, and if so in fault, 
his individual negligence in leaving his then he was responsible, s. p. Michaels 
barge there would not have produced the v. K. Y. Centr. Railw., SO K. Y. 564. 
injury without the concurrence of the act See also Merritt v. £arle, 29 K. Y. 115. 
of God and the negligjence of the wharf And the proprietors of a railroad, who 
builder. New Brunswick Co. v. Tiers, 4 negligently delay the transportation of 
Zabr. (N. J.) 697. See also Friend v, go^ delivered to them as common car- 
Woods, 6 Gratt. (Va.) 189. tiers, and then transport them safely to 



PABT TV.'] CABBIEB3. 209 

liable. In regard to losses occasioned hy force ^ it must have been 
the act of ptiblie enemies ; for if the goods were taken by robbers, 
or destroyed by a mob, though by force which he could not resist, 
a common carrier is held responsible for the loss.^ (a) In all 
cases of loss by a common carrier^ the burden of proof is on him, to 
show that the loss was occasioned by the act of God, or by public 
enemies.^ And if the acceptance of the goods was special, the 
burden of proof is still on the carrier, to show, not only that the 
cause of the loss was within the terms of the exception, but also 
that there was on his part no negligence or want of due care.^ (J) 
Thus, where goods were received on board a steamboat, and the 
bill of lading contained an exception of *' the dangers of the river," 
and the loss was occasioned by the boat's striking on a sunken 
rock, it was held incumbent on the carrier to prove that due dili- 
gence and proper skill were used to avoid the accident.* ((?) 
§ 220. Same subject A carrier may repel the charge of the 

^ 8 Esp. 131, 132, per Ld. Mansfield and Bailer, J. In an action against a carrier 
to recover for goods alleged to have been stolen by defendant's servants, it is sufficient 
to prove facts which render it more probable that the felony was committed by some 
one or other of the defendant's servants, than by any one not in their employ; and it 
is nnnecessary to give such evidence as would be necessary to convict any particular 
servant. Vaughton v. Lon. & N. W. R. R. Co., L. R. 9 Ex. 98. But see Gogarty v, 
Gr. S. & W. R. R. Ck)., 9 Ir. L. T. Rep. 99; M'Queen v. Gr. West. R. R. Co., 44 
L. J. Q. B. 130. Where goods have been stolen on their passage through the hands of 
several carriers, there being no evidence from which, the presumption is that they were 
stolen from the la.st. Ante, vol. i. § 48, n. 

> Murphy v, Staton, 8 Mont 239; BeU v. Reed, 4 Binn. 127; Ewart «. Street, 2 
Bailey, 157. 

s Swindler v. Hillard, 2 Rich. 286. 

« Whiteside v. Russell, 8 W. & S. 44. And see Slocam v. Fairchild, 7 Hill (N. 
Y.), 292. 

their destination, are not responsible for {c\ Where goods were received on 

iigoiies to the goods by a flood while in boara a steam-packet, and the bill of lad- 

their depot at that place, although the iug contained an exception of "robbers," 

goods would not have been expcMed to and the goods were stolen without vio- 

sucli injury but for the delay. Denny v, lence, the loss was held not to be within 

N. Y. Cent. R. R., 13 Gray (Mass.), 481. the exception. De Rothschild v. Royal 

Cf. Gillespie v, St Louis, &c.R.R.Ck)., 6 Mail, &c. Co., 14 Eng. Law & Eq. 827. 

Mo. App. 554. Damaf^ by rats does not come within the 

(a) Loss by pirates is regarded as a loss exception of " dangers of the sea or navi- 
by the public enemy. Magellan Pirates, gation." Laveroni v. Drury, 16 Id. 510, 
25 Eng. L. k Eq. 595. See Bland v, and n. The responsibility of a common 
Adams Ex. Co., 1 Dnvall (Ky.), 232. carrier lasts until that of some other party 

(b) This is probably not now the law begins, and he must show an actual or 
in most States. The burden of proof of le^ constructive delivery to the owner, 
showing the loss to have been under an or consignee, or warehouseman, for stor- 
exception is on the carrier, but of showing age; and the burden of proof is on the 
negligence is on the shipper. ATUe^ § 218 carrier to show, by some open act of de- 
note (b), and cases there cited. Colton v. livery, that he has changed nis liability to 
Cleveland R. Co., 67 Pa. St. 211; Fam- that of warehouseman. Chicago, &c. R. R. 
ham V. Camden, &C.R.R. Co., 55 Pa. St. 58; Co. v. Warren, 16 III. 502; The Peytona, 
Lawson, Carriers, § 248. 2 Curtis, C Ct. 21. 

TOL. If. 14 



210 LAW OP EVIDENCE. [PABT IV. 

plaintiff 9 by evidence of fraud in the plaintiff himself, in regard to 
the goods ; or by proof that the loss resulted from the negligence 
of the plaintiff in regard to their packing or delivery ; or from 
internal defect without his fault.^ (a) Thus, where the plaintiff 
had just grounds to apprehend the seizure of his goods by rioters, 
which he concealed from the carrier when the goods were received 
by him for transportation, and they were seized and lost, it was 
held that the plaintiff was not entitled to recover.^ So, where a 
parcel, containing two hundred sovereigns, was enclosed in a pack- 
age of tea, and paid for as of ordinary value, and it was stolen, it 
was held, that the carrier was not liable.^ And where the plaintiff, 
being a bailee of goods to be booked and conveyed by the coach in 
which he was a passenger, placed them in his own bag, which was 
lost, it was held that the loss was not chargeable to the carrier, 
but was imputable to the plaintiff's own misfeasance.^ And if the 
injury is caused partly by the negligence of the plaintiff, and 
partly by that of the defendant, or of some other person, it seems 
that the plaintiff cannot maintain the action ; unless, perhaps, in 
case where, by ordinary care, he could not have avoided the con- 
sequence of the defendant's negligence.^ The question of unfair 
or improper conduct in the plaintiff, in these cases, is left to the 
determination of the jury.® 

§ 221. Carriers of paBsengera. CARRIERS OF PASSENGERS are not 

held responsible to the same extent with common carriers, except 
in regard to the baggage.^ (i) But they are bound to the utmost 

1 Story on Bailm. §§ 563, 565, 566, 576; Leech v. Baldwin, 5 Watts, 446. 

* Edwards v. Sharratt, 1 East, 604. 

* Bradley i;. Waterhouse, 1 M. & Malk. 154; s. c. 8 C. & P. 318. See also BaU. 
N. P. 71. The owner, ordinarily, is not obliged to state the value of a package, un- 
less inquiry is made by the carrier; but if, being asked, he deceives the carrier, the 
latter, though a common carrier, is not liable without his own default. Phillii)8 v. 
Earle, 8 Pick. 182. 

« Miles V. Cattle, 6 Bing. 743. 

» Williams v. Holland, 6 C. & P. 28; PluckweU v. Wilson, 6 C, & P. 875; Haw- 
kins V. Cooper, 8 C. & P. 473; Davies v. Mann, 10 M. & W. 546; Smith v, Smith, 2 
Pick. 621; White v. Winnissiromet Co., 5 Monthly Law Rep. 203; 8 Cush. (Mass.) 155; 
Willoughby v, Horridge, 16 Eng. Law & Eq. 437. 

Batson v, Donovan, 4 B. & Aid. 21. And see Mavhew v. Eames, 8 B. & C. 601; 
8. c. 1 C. & P. 550; Clay v. Willan, 1 H. Bl. 298; Izett v. Mountain, 4 East, 870. 

7 Whether a large sum of money, in an ordinary travelling-trunk will be considered 
as baggage, beyond an ordinaiy amount of travelling expenses, mi€Bre; and see Orange 
Co. Bank v. Brown, 9 Wend. 85. In a later case, it was thought that the term "bag- 
gage" does not include even money for travelling expenses; but this was not the point 

(a) Clark v. Barnwell, 12 How. (U. S.) passenger's bagcage if it is reasonable in 

272; Bich p. Lambert, Id. 347. amount and "^ue, and proper for a pas- 

(J>) The carrier is an insurer of the senger to carry with him. Pennsylvania 



PABT IV,] CARRIERS. 211 

care and diligence of very cautious persons ; and of course they 

in judgment It was trover against the owner of a steamboat, as a common carrier of 
passengers, for the loss of one of the plaintiff's two trunks, containing samples of mer- 
chandise, carried as part of his personal baggage, by the plaintiff's travelling agent. 
The court held, that tne carrier was not liable on that ground; the learned judge express- 
ing himself as follows: "Although I do not find it stated in the case that Mason (the 
agent) paid anything to the boat-owner, either for freight or passage, yet the whole argu- 
ment on both sides went upon the ground that he had paid the usual fare of a passenger, 
and nothing more; that he neither paid, nor intended t<> pay, anything for the trunk; 
but designed to have the same pass as his baggage. It was formerly held, that the owner 
of the UMit or vehicle was not answerable as a carrier for the luggage of the passen- 
ger, unless a distinct price was paid for it. But it is now held, that the carrying of 
the baggage is included in the principal contract in relation to the passenger; and the 
carrier ia answerable for the loss of the property, although there was no separate agree- 
ment concerning it. A contract to carry the ordinary lug^ge of the passenger is im- 
plied from the usual course of the business, and the price paid for fare is considered as 
mdading a compensation for carrying the freight nut this implied undertaking has 
never been extended beyond ordinary baggage, or such things as a traveller usually car- 
ries with him for his personal convenience in the journey. It neither includes money 
nor merchandise. Orange Co. Bank v. Brown, 9 Wend. 86; Panlee v. Drew^ 25 Wend. 
459. It was suggested in the first case that money to pay travelling expenses might 
perhaps be included. But that may, I think, be doubted. Men usually carry money 
to pay travelling expenses about their persons, and not in their tninks or boxes; and 
no f!ontract can be implied beyond such things as are usually carried as baggage. It is 
going far enough to imply an agreement to carrv freight of any kind, from a contract 
to cany the passenger; for the agreement which is implied is much more onerous than 
the one whicn is expressed. The carrier is only answerable for an injury to the passen- 
ger, where there has been some want of care or skill; but he must answer for the loss 
of the goods, though it happened without his fault Still an a^eement to carry ordi- 
nary baggage may well be Implied from the usual course of business; but the implica- 
tion cannot be extended a single step beyond such things as the traveller usually has 
with him as a part of his luggage. It is undoubtedly difficult to define with accuracy 
what shall be deemed baggage within the nile of the carrier's liabilitv. I do not in- 
tend to say that the articles must be such as every man deems essential to his comfort; 
for some men carry nothing, or very little, with them when they tmvel, while others 
consult their convenience by carrying many things. Nor do I intend to say that the 
role is confined to wearing-apparel, onishes, razors, writing apparatus, and the like, 
which most persons deem indispensable. If one has books for his instniction or 
amusement by the way, or carries his gun or fishing-tackle, they would undoubtedly 

Co. V. Miller, 35 Ohio St 541 ; Hutchinson, such as are carried by commercial travellers. 

Carriers, { 678, and cases there cited. are not baggage (Blumantle v. Fitchburg 

The question whether the baggage is K.R. Co., 127 Mass. 322), and the company's 

sncb as the company is liable for as an in- liability for them is held in Massachusetts 

snrer resembles m its treatment very much to be that of a gratuitous bailee (Ailing v. 

the question of reasonable care and reasons- Boston, &C.R.K Co., 126 Mass. 121), but in 

ble cause. If, on the facts as proved, the Ohio to be that of an ordinary bailee for 

Court are satisfied that the jury must find hire (Pennsylvania Co. v. Miller, 35 Ohio 

the article to be or not to be baggage, then St 541). 

the Court rules accordingly (Connolly r. The carrier's liability as carrier for 

Warren, 106 Mass. 1 46), but if it is doubt- bagga^ ceases after the lanse of a reason- 

ful whether the article is properl v baggage, able time, and becomes tnat of a ware- 

the question is left to the jury. IwewYork houseman, if the baggage be placed in a 

Central, &cR.R.Co. v. Fraloff, 100 U. S. secure wai-ehouse. Mote v, Ch., &c. R. 

24. A collection of various articles which R. Co., 27 Iowa, 22; Bartholomew v. St 

have been decided to be baggage or not is Louis R. R. Co., 58 IlL 227. Express 

collected in Hutchinson, Carriers, §§ 677, companies are held to the same rules, 

689. Cf. Dexter v. Syracuse, &c.R.R.Co., though the courts seem inclined to extend 

42 K. Y. 826; Am. Contract Co. v. Cross, the period of reasonable time as ajninst 

8 Bush (Ky.), 472; First Nat Bank, &c. v. them. Witbeck v, Holland, 45 N. Y. 18; 

Marietta, 20 Ohio St 259. It is now well Weed v. Baniey, Id. 844. 
settled that trunks or boxes of samples, 



212 LAW OP EVIDENCE. [PABT IV. 

are responsible for anj, even the slightest, neglect^ (a) Their 

fall within the term ' baggage,' because they are UBuallj carried ae such. This is, I 
think, a sood test for determining what things fall within the rule. 

" In this case, the plaintiff sent out Mason as his ' traveller/ or agent, to seek par- 
chasers for his goods, and the trunk in question contained samples of the merchandise 
which he wished to sell. The samples were not carried for ttie personal use, conro- 
nience, instruction, or amusement of the passenger in his journey, but for the purpose 
of enablinc him to make baigains in the way of trade. Although the samples were 
not themselves to be be sold, they were used for the sole purpose of carrying on traffic 
as a merchant. They were not bag^piee, within the common acceptation of the term; 
and as thev were not shipped or earned as freight, the judge was right in holding that 
the pkintiff could not recover." Hawkins v. Hoffman, 6 Hill (N. Y.), 686. Sed 
^iMsre, whether prudent travellers do not ordinarily carry part of their necessary funds 
in the trunk. 

In regard to the lugaage of passengers, it is held that the carrier is bound to deliver 
it to the passenger at tne end of the journey, though it may be in the same carriage 
with the passenger, and under his personal care; and that if the usual course of de- 
livery is at a particular spot, that is the place of delivery. Bichards v. The London 
& S. Coast Railw. Co., 7 M. G. & S. 889. It is sufficient for the plaintiff to prove that 
the luggage was in the carriage, and its non-delivery at the end of the journey. Ibid.; 
Crouch V. The London & N. W. Railw. Co., 2 C. & K. 789. It is the duty of a rail- 
road corporation, that receives passengers and commences their carriage at the station 
of another road, to have a servant there to take charge of baggage, until it is placed 
in their cars; and if it is the custom of the baggage-master of the station, in tne ab- 
sence of auch servant, to receive and take charse or baggage in his stead, the proprie- 
tors will be responsible for ba^ggage so delivered to him. Jordan v. Fall River R. R. 
Co., 6 Cush. 69; Butcher v. Jiondon & S. W. R. Co., 29 Eng. Law k Eq. 847. 

The teim *' baggage " may be said, in general terms, to include such articles as an 
of necessity or convenience for personal use, and such as it is usual for persons travel- 
ling to taWe with them. It has been said that srticles for instruction or amusement, 
as books, or a gun, or fishing-tackle, fall within the term '* baggage." Jordan v. Fall 
River R. R. Co., 5 Cush. 69. The carrier was held responsible for a Isdy's trunk, con- 
taining apparel and jewelry (Brooke v. Pickwick, 4 Bmg. 218; M'Gill v. Rowand, 3 
Barr, 451); for a watch lost in a trunk (Jones v. Voorhees, 10 Ohio, 145); and for money 
bona fide taken for travelling expenses and personal use, to a reasonable amount (Weed 
V, Saratoga & S. R. R. Co.. 19 Wend. 534; Jordan v. Fall River R. R. Ca, 5 Cush. 69). 
In the case in 19 Wendell the defendant was held liable for the sum of $285 in the 
trunk of a passenger from Saratoga to New York. In the case from 5 Cushin^ $325 
were lost in a trunk; and the verdict being for the whole sum, and as there htS. been 
in the court below no inquiry and no finding as to the uses and purposes for which the 
money was designed, the verdict was set aside and a new trial was granted, that such 
inquiry might he made. A common carrier is not liable for articles of merchandise 
not intended for personal use as baggage. Collins v. Boston & M. R. R., 10 Cush. 506. 
See also Orange Co. Bauk v. Brown, Pardee v. Drew, and Hawkins v, Hoffman, uH 
supra; Dibble v. Brown, 12 Ga. 217; Great North. R. Co. v. Shepherd, 14 Eng. Law 
k £q. 367. Finger-rings have also been regarded as wearing-appard. McC^nnick v. 
Hudson River milw., 4 E. D. Smith, 81. But a dozen silver teaspoons, or a Colt's 
pistol, or smgical instruments, except the passenger be connected witli the profession, 
are not properly a portion of travelling baggage. Giles v. Fauntleroy, 18 Md. 126. 
And title-deeds and documents, which an attoiney is canring with him to use on a 
trial, are not lugga^; nor is a considerable amount of banK-notes carried to meet the 
contingencies or exigencies of the case. Phelps i*. London & N. W. R. Co., 19 C. B, 
N. 8. 652. In 111. (>ent. Railw. v. Copeland, 24 III 832, it is held a reasonable amount 
of bank-bills may be carried in a trunk, and their value recovered as lost baggage. 
But in Hickox v. Naugatuck R. R. Co., 81 Conn. 281, where the passenger had in his 
trunk sixty dollars for the purpose of purchasing clothing at the place of his destina- 
tion, it was held the carriers were not liable as such for any additional damages on ac- 
count of tiie loss of this money. See 2 Redfield on Railways, 152-155. 

I Story on Bailm. §§ 601, 602; 2 Kent, Comm. 600. 

(a) Crawford tf. G^rgiaR.R.Co.,62 6a. Derwort v. Loomer, 21 Conn. 246; Fuller 
566; Farish v, Reigle, 11 Gntt. (Ya.) 697; v. Naugatuck R. R. Co., Id. 557. A feny 



PABT IT.] CABBIEB8. 218 

contract to carry Bafelj means, not that they will insure the limbs 
of the passengers, but that they will take due care, as far as com- 
petent skill and human foresight will go, in the performance of 
that duty.^ This extreme care is to be used in regard to the 
original construction of the coach or vehicle, frequent examination 
to see that it is safe, the employment of good and steady horses 
and careful drivers, and the use of all the ordinary precautions for 
the safety of passengers on the road.^ The carrier is also bound 
to give them notice of danger, if any part of the way is unsafe.^ 
Accordingly, where the injury resulted from negligent driving,* 
insufficiency of the vehicle,^ overloading the coach,^ improper 
stowage of the luggage,^ drunkenness of the driver,^ want of due 
inspection of the coach previous to the journey, or upon the road,® 
or the like, — the proprietor has been held liable. He is also lia- 

1 Harris v, Coetu, 1 C. & P. 686; Stokes «. Saltonstall, 18 Peters, 181; Story on 
Bailm. |§ 601, 602. 

s Story on Bailm. §§ 592-694, 598, 599, 601, 602 (8d ed.). 

* Dudley v. Smith, 1 Campb. 167 ; Christie v. Griggs, 2 Campb. 79. 

* Aston V, Heaven, 2 Esp. 588 ; Crofts v. Waterhouse, 8 Bing. 819. If the driver, 
having a choice of two ways, elects the most hszardous, the owner is responsible at 
aU events for any damage that ensues. Mayhew v, Boyce, 1 Stark. 428. 

' Christie v. Griggs, 2 Campb. 79 ; Bremner v. Williams, 1 C. & P. 414 ; Sharp v. 
Grey, 9 Bins. 457 ; Ware «. Gay, 11 Pick. 106 ; Camden & Amboy BailnMui Co., 
V. Burke, 18 Wend. 611 ; Curtis v. Drinkwater, 2 B. & Ad. 169. 

* Israel v. Ckrk, 4 Esp. 259. 7 Curtis v. Drinkwater, 2 B. & Ad. 169. 

* Stokes V. SaltoDstaU, 18 Peters, 181. 

* Sharp V. Grey, 9 Bing. 457 ; Bremner 9. Williams, 1 C. & P. 414 : Ware «. Gay, 
11 Pick. 106. 

company, being common carriers of pas- agencies are powerful and dangerous, the 

aengers, are bound to furnish reasonably care should be the greater, and any negli- 

safe and convenient means for the passage ^nce would be culpable. Phila. & Read- 

of teams from their boats, appropriate to mg K. R. v, Derby, 14 How. (U. S.) 486; 

the nature of their business, and to exer- Hegemau «. West. R. R. Co., 18 N. Y. 9; 

cise the utmost skill in the provision and Warren v, Fitchbui^ R. R. Co., 8 Allen 

application of the means so employed; but (Mass.), 227; 111. Cent. R. R. Co. v, Phillips, 

they are not bound to adopt and use a 55111.194. The highest degree of care, not 

new and improved method, because it is amounting to an absolute warranty against 

safer or better than the method employed injury, or involving such an expenditure 

by them, if it is not requisite to the rea- of mone^ and effort as would paralyze the 

•onable safetv or convenience of pas- business itself, will be required. McPad- 

sengera, and if the expense is excessive; den v, N. Y. Cent R. R. Co., 44 N. Y. 

and the cost of such improved method 478; Taylor v. Gr. Tr. R. R. Co., 48 N. 

may be a sufficient reason for their refus- H. 804. 

ing to adopt it Loftusi). Union Ferry Ca, Whether there is any room for a dis- 

22 Hun (N. Y), 88; Le Barron v. East tinction between negligence and gross 

Boston Ferry Co., 11 Allen (Mass.), 812. negligence as applicable to carriers of pas- 

So proprietors of hacks are common carriers seugers, who are held to the utmost care, 

of passengers, and bound to use the ut- see Jacobus v. St Paul, 20 Minn. 125. 

most care and foresight Bonce v, Dubn- For a full collection of the cases for and 

que Street Ry. Co., 58 Iowa, 278. against the right to restrict liability by 

The degree of care and diligence must agreement, see Ohio & Min. R. R. do. v. 

be in proportion to the seriousness of the Selby, 47 Ind. 471. 
oonsequencea of neglect; and where the 



214 LAW OF ETIDENCE. [PABT lY. 

ble for an injury occasioned bj leaping from the coach, where the 
passenger was justly alarmed for his safety, by reason of some- 
thing imputable to the proprietor.^ (a) 

§ 222. Negliganoe the ground of liabmty. It is only on the 
ground of negligence that the carrier of passengers is held liable. 
This is therefore a material point for the plaintiff to make out in 
evidence, and without which he cannot recover. He must also 
prove the defendant's engagement to carry him, and that he ac- 
cordingly took his place in the vehicle. (V) But where the injury 

I Jones V. Boyoe, 1 Stark. 498 ; Stokea v. Saltonstall, 13 Peters, 181. The follow- 
ing count in assumpsit against a passenger carrier, for bad management of a sufficient 
coach, it is conceived, would be good. 

" For that the said {cU/endant) on was the proprietor of a coach for the car- 
riage of passengers with their luggage between and , for hire and reward ; 

and thereupon, on the same day, in consideration that the plaintiff, at the reouest of 
the said {(U/endaTU), would engage and take a seat and place in said coach, to oe con- 
veyed therein from said to , for a reasonable hire and reward to be paid to him 

by the plaintiff, the said {defendant) undertook and promised the plain tin to carry 

and convey him in said coach, from to , with all due care, diligence, and 

skill. (*) And the plaintiff avers, that, confiding in the said undertaking, he there- 
upon engaged and took a seat in said coach and became a passenger therein, to be con- 
veyed as aforesaid, for such hire and reward to be paid by him to the said (de/endaiU), 
But the said (defendant) did not use due care, diligence, and skill in carrying and con- 
veying the plaintiff as aforesaid ; but, on the contrary, so overloaded, and so negli- 
gently and unskilfully conducted, drove, and managed, said coach, that it was 
overturned; by means whereof the plaintiff was grievously bruised and hurt [here staU 
any other special inju,rie8\ and was sick and disabled for a long time, and was put to 
great expense for nursing, medicines, and medical aid.*' 

If the iinury arose from insufficiencv in the coach or horses, insert at (*) as follows: 
" and that the said coach was sufficiently stanch and strong, and that the horses dmw- 
ing the same were and should be well broken, and manageable, and of competent 
strength ; " and assign the breach accordingly. 

(a) Where one person, by negligent an undertaking on the part of the corn- 
breach of duty, puts another to whom the pany to transport her and her baggage over 
duty is owed in obvious peril, he is re- the road, and the acts of the company's 
sponsible, notwithstanding the efforts to conductors were sufficient ground for the 
escape the peril may have contributed to law to presume that the undertaking of 
the injury. Robson v. N. £. By. Co., the agent was valid and binding upon the 
L. R. lOQ. B. 271; 2Q. B. D. 85; Wilson company until the contrary appeared. 
V. Northern, Ac. R. R. Co., 26 Minn. 278 ; Glasco «. N. Y , Ac Railw. , 86 Barb. ( N. Y. ) 
Cuyler «. Decker, 20 Hun (N. Y.), 17S. 557. Where a railroad company receives 
Cf. Iron R. R. Co. V. Mowery, 86 Ohio St. upon its track the carsofanotner company, 
418; Roll V. Northern, &c. Ry. Co., 15 places them under the control of its sgents 
Hun, 496. If he puts him in a peril which and servants, and draws them by its own 
is not obvious, a fortiori he is responsible, locomotive over its own road, to their 
Adams v. L. & Y. R. R. Co., L. K. 4 C. place of destination, it assumes towards 
P. 744. ^ the passengers coming upon its road in 

Q>) The plaintiff showed that she pur- such cars tne relation of common carriers 
chased a ticket for herself and her baggage of passengers, and all the liabilities inci- 
from one who purported to be an agent of dent to that relation; and this is so, whether 
the road for the sale of tickets, that the con- such passengers purchase their tickets at 
dnctors accepted it as evidence of her right one or the company's stations, or at a sta- 
te ride in the cars, marked it, and finally tionof a contiguous railroad, or of any other 
took it shortlv before arrival, and de- authorized agent of the company. Schop- 
manded no other fare from her. Held, man v. Boston & W. R. R. Co., 9 CusL 
that these facts offered sufficient proof of (Mass.) 24. And as such passenger-carrier. 



PABT lY.] GABRIEBS. 215 

resulted from the breaking of the harness, or the breaking or 

overturning of the coach or car, or any other accident occurring 

the railroad company is bound to the most Wall. (U. S.) 857 ; Bissell v. N. Y. Cent, 
exact care and diligence in the manage- R. K. Co., 25 N. Y. 442 ; Pa. R. B, Co. 
ment of the trains and cars, in the struc- v. Henderaon, 51 Penn. St. 315 ; Cleve- 
ture and care of the track, and in all the land R. R. Co. v. Curran, 19 Ohio St. 1. 
subsidiary arrangements necessary to the A person who pays for the privilege of 
safety of the passengers. Ibid.; McElroy trarel ling over the road and selling pop- 
V. Nashua, Ac R. R. Co., 4 Cush. (Mass.) com is a passenger. Com. v. Yt., &c. 
400 ; Curtis v. Rochester, &c R. R. Co., R. R. Co., 108 Mass. 7. See also note to 
20 Barb. (N. Y.) 282; Galeua,&c. R.R.Co. 8. c. 11 Am. Re^). 304. But a person gra- 
v» Fay, 16 111. 558. tuitously riding in a coal-train, at the in- 
Free Passes. — Hutchinson on Carriera vitation of the conductor, is not a passeD- 
says (| 554) that it is enough that the per- ger. Eaton v. Del., &c. R. R. Co., 57 
son is being lawfully earned as a ^lassen- N. Y. 882. Nor a newsboy trayelling on 

ST, to entitle him to all the care which the the train by invitation of the conductor 
IV requires of the passenger-carrier, and against the rules of the road. Duff v. Al- 
the same vigilance and circumspection leghany, &c. R. R. Co., 91 Pa. St. 4.58. Cf. 
must be exercised to ffuard him against Sherman v. Hannibal, &c. R. R. Co., 72 
injury when he is carried gratuitously upon Mo. 62 ; Pennsylvania R. R. Co. v. Lang- 
what is known as a free pass, or by the don, 92 Pa. St. 21. 
carrier's invitation, as when he pays the Railways are liable not only to pas- 
usual fare. Philadelphia, &c. R. R. Co. v. seneere, but also to othera who are invited 
Derby, 14 How. (U. S.) 468 ; Ohio, &c. to oo business with them, as hackmen and 
R. R. Co. V. Nickless, 71 Ind. 271 ; Maslin othera calling for passengera, baggage, or 
V, Baltimore, &c. R. R.Co., 14 W. Ya. 180. freight, for injuries happening bv i-eason 
See Nolton v. Western Railw., 15 N. Y. of the negligent non-repair of their sta- 
Court of Appeals, 444, where it is held tions and surroundings, or other negli- 
that, where a railway voluntarily under- gence chargeable to the carrier. Tobin v. 
takes to convey a passenger upon their P. S. & P. R. R. Co., 59 Me. 183: Toledo, 
road, whether with or without compensa- &c. R. R. Co. v. Crush, 67 111. 262 ; 
tion, if such passenger be injured by the Wright v. Lon. & N. W. R. R. Co., L. R. 
culpable negligence or want of skill of the 10 Q. B. 298 ; Holmes v. N. £. R. R. Co., 
agents of the company, they are liable, in L. R. 4 Ex. 254, and 6 Ex. 128. 
the absence of an express contract exempt- Through tickets. — When the jouniey 
ing them. The cases differ upon the ones- is once begnn, the passenger is bound to 
tion of liability to a passenger travelling continue without stopping over, unless by 
OD a free pass, conditioned \haX the carrier permission. Thus, m Deatrick v. Pa. 
shall not be liable under any circum- R. R. Co., 71 Penn. St 482, a drover's 
stances. That the carrier is nevertheless ticket good for one seat was held good for 
liable for his negligence is held in 111. Cent, one continuous passage only, and not to 
R. R. Co. V. R^, 37 111. 484; Ind. Cent entitle the passenger to stop over at any 
R. R. V. Mendy, 21 Ind. 48; Mobile & Ohio intervening point, the ticket not giving 
R. R. Co. 9. Hopkins, 41 Ala. 489 ; Pa. notice that such was the rule of the con>- 
R. R. Co. ». McClosky, 28 Penn. St pany, and there being no evidence that the 
526 ; Jacobus v, St Paul & Ch. R. R. Co., plaintiff knew of such rule. See also 
20 Minn. 125. That he is not liable has Johnson v. Concord R. R. Co., 46 N. H. 
been held in Wells v. N. Y. C. R. R. Co., 213 ; C. & C. R. R. Co. v. Bartram, 11 
24 N. Y. 181 ; Kinney v. Central R. R. Ohio St 467; McClurev. P. W. & B. R. R. 
Co., 84 N. J. L. 518. Co., 84 Md. 532 ; Petrie v. Pennsylvania, 
In England it has been held that a &c. R.R.Co., 42 N. J. L. 449. A pas- 
drover who had cattle on the train, and senger bought a ticket, rode part of the 
was travelling gratuitously on condition distance, stopped over, and then took the 
that he took the risk, could not recover train to complete the journey, tendering the 
for injuries happening by the negligence same ticket, which the conductor took, re- 
of the carrier. Gulliver v, Lon. & If. W. fused to return, and demanded the re^lar 
R. R. Ca, 32 L. T. N. 8. 550 ; Hall v. fare. This was refused unless the ticket 
17. £. R. R. Co., L. R. 10 Q. B. 487. was returned; whereupon the passenger 
But tiie American courts almost, if not was ejected from the car. Upon these 
quite, unanimously hold that he can re- facts it was held that the road was liable. 
cover. RaUroad Co. v. Ijockwood, 17 as they were not entitled to the ticket and 



216 LAW OP EVIDENCE. [PABT IV. 

on the road, while the vehicle or machinery and railway were in 
the hands and exclusive management of the defendants or their 
agentd,^ this is itself presumptive evidence of negligence, and the 
onus prohandi is on the proprietor of the vehicle to establish that 
there has been no negligence whatever, and that the damage has 
resulted from a cause which human care and foresight could not 
prevent.' (a) Where the breaking down of the carriage was occa- 

1 Carpue v, London Railw. Co., 6 Ad. ft El. n. 8. 747. 

s Story on Bailni. §§ 601 a, 602 ; McKinney v. Neil, 1 McLean, 540 ; Christie v. 
Origf^ 2 Campb. 79 ; Ware v. Gay, 11 Pick. 106 ; Skinner v, London, &c Railway 
Co., 4 Am. Law Rep. N. a. 88. 

the fare alao. Van Kirk v. Penn. R. R. 678, to wit, that the plaintiff may recover, 
Ca, 76 Penn. St. 66. See also Bamham though n^ligent, if the defendant by 
V. Gr. J. R. R. Co., 68 Me. 298 ; Town- ordinary care might have avoided the con- 
send V, N. Y. C. R. R. Co., 6 N. Y. Sup. sequences of the plaintiff's negligence, has 
Ct. 495; Hamilton v. Third Av. R.R. Co., been ajiproved by several courts. Austin 
58 N. Y. 26 ; Pittsbui^, &c R. R. Co. ». v, N. J. St. Co., 43 N. Y. 75 ; Lafayette, 
Hennigh, 89 Ind. 609 ; Palmer v. Rail- &c. R. R. Co. v. Adams, 26 Ind. 76; Mor- 
load, 8 S. C. N. 8. 580. But see Town- risey v. Wiggins Ferry Co., 43 Mo. 380. 
send V. N. Y. C. R. R. Co., 56 N. Y. But the soundness of the law of Tuff v. 
896. In Auerbach v. New York,&c.R.R» Warman, is very ably denied in Mniphy 
Co., 60 How. (N. Y.) Pr. 882, it was held v. Deane, ubi nip. 

that when a limited ticket has expired, if When it does not appear whether the 

the traveller, through his own fault, has plaintiff did an act whicn due care reouired 

not reached his destination, he cannot he should do, it will not be presumea that 

use the ticket. But when the ticket he was negligent ; and the presumption 

is over several connecting lines and has that he used due care is, in the absence of 

detachable coupons, the passenger may other evidence, sufficient to call upon the 

wait between each journey. Brooke v. defendant to show that he did not. Bonce 

Railway, 15 Mich. 882. v. Dubuque Street R.R.C0., 68 Iowa, 278 ; 

Tlie defendants ran cars from A to B, Penn. R. R. Ca v. Weber, 72 Penn. St 

and advertised that, on the arrival of the 27 ; s. c. 76 Penn. St. 127. Love of life 

can at B, stages would leave for C. The and the instinct of preservation being the 

plaintiff bougnt of the defendants a ticket highest motive for care, they will stand for 

for the fare to B. Arriving at B, he took proof of it, until the contrary appear, 

the stage for C, and received an injury Cleaveland !t P. R. R. Co. v. Rowan, 66 

while going in the stage from B to C. The Pa. St 898. 

defen£nts did not own or control the Carriers are bound to provide reason- 
stage, nor participate in the profits of its ably safe kinds of vehicles and appliances, 
nse. The plaintiff brought an action on and to have them managed with the utmost 
a special contract to carry him safely by care and skill. Chicago, ftc. R.R. Co. v. 
railroad and stage, and it was held that Scales, 90 111. 586; Conway 4;. Illinois, ftc 
the action could not be maintained. R.R.Co., 50 Iowa, 466. It has in some 
Hood V. New Haveuj &c. R. R. Co., 22 cases been held that the mere happening 
Conn. 1. of an injury raises the presumption of 

(a) Burden of proof of negligence and negligence against a carrier of passengers. 

dM care. The burden of proof is uiH>n Eagle Packet Co. v. Defries, 94 111. 698; 

the plaintiff to show that the defendant Byrne r. Cal. Stage Co., 26 Cal. 460; Gal., 

was negligent, and that he, the plaintiff, &c. R. R. Co. v. Yarwood, 17 111. 609; 

used due care. W. & G. R. R. Co. v. Tennery v. Penpinger, 1 Phila. (Pa.) 648. 

Gladmon, 16 Wall. (U. S.) 401 ; Murphy Cf. Smith v. British, &c. Packet Ca, 46 

V. Deane, 101 Mass. 466. If the plain- K. Y. Super. Ct 86. But this is by no 

tiff*s fault contributed to the accident, he means universally conceded. Delaware, 

cannot recover. Richmond, ftc. R. R. Co. &C.R.R. Co. v. Napheys, 90 Pa. St. 186; 

V. Morris, 81 Gratt. (Va.) 200. Holbrook v, Vt & C. R. R. Ca, 12 N. Y. 

A qualification of the rule, first laid 286 ; Mitchell «. West R. R. Co., 80 Ga. 

down m Tuff v. Warman, 6 C. B. n. s. 22 ; Lyndsay v. Conn., ftc R. R. Ca, 27 



PABT IT.] CABBIEBS. 217 

sioned by an original defect in the iron axle, which, though con- 
cealed bj the wooden part of the axle, might have been discovered 
bj unscrewing and separating them, the proprietor has been held 
chargeable with negligence, in not causing such examination to 
be made, previously to any use of the vehicle.^ But that he is 
liable for such an accident, where the fracture was caused by an 

1 Sharp V, Gray, 9 Bing. 457. 

Vt. 643. In Curtis o. Rochester k Sy. for instance, allowing the arm to protrade 

K^w., 18 N. Y. 584, it is said that no from a car- window constitutes negligence, 

prima fade presumption of negligence in is not agreed by the authorities. Pro : 

the carrier results from the injury merely, Todd v. Old Col. R. R. Co., 3 Allen 

bat only when it appears that it resulted (Mass.), 18 ; Pittsbut^g, &c. R. R. Co., v, 

from some defect in the road or equipment McClurg, 56 Penn. St. 294 ; Holbrook v. 

When this is proved, it throws the burden Utica & S. R. R. Co., 12 N. Y. 286 ; In- 

of evidence on the railroad company to dianapolis, &c. R. R. Co. v. Rutheiford, 

prove that the defect was not caused by 29 Ind. 82 ; Louisville & N. R. R.'Co. v. 

Its negligence. Baltimore, &c.R.R.Co. v. Sickings, 5 Bush (Ky.), 1; Pittsburg, &c. 

Noell, 82 Gratt (Va.) 894; Yerkes v. R. R. Co. v, Andrews, 89 Md. 829; Tel* 

Keokuk, kc Packet Co., 7 Mo. App. 265. fer v. North. R. R. Co., 80 N. J. L. 

The nature of the accident, e. g, running 190. Contra : Spencer v. Milwaukee ft 

off the track, may, in some instances, be P. R. R. Ca, 17 Wis. 487; Ch. & A. R. R. 

such as to give rise to the presumption of Co., v. Pondrom, 51 111. 888 ; N. J. R. R. 

negligenoe. Festal v. Middlesex R. R. Co. v. Kennard, 21 Pa. St. 208; Bar* 

Co., 109 Mass. 898. Cf. Carpue v. Lon. ton v. St Louis R. R. Co., 52 Mo. 258. 

be Ry. Co., 5 Q. B. 474 ; Cuitisv. Roch., See the above cases also for a discussion of 

Itc R. R. Co., 18 N. Y. 534 ; George v. the light of the court to order a verdict 

St. LouiB, &c R. R. Co., 84 Ark. 613 ; for the defendant. To escape from this 

Dougherty v. Mistiouri, &c. R. K. Co., 9 Mo. difficulty, in Bridges v. North London 

App. 478 : Iron R. R. Co. v. Mowery, 86 R. R. Co., 80 L. T. N. s. 844, the House 



Omo 6t 418. See elaopoat, § 280. The of Lords suggested the rule that where the 

eases on this much-vexed question as to judges differ on the question of negligence, 

the plaintiff's burden of proof are full^ the division is conclusive that the case is 

collected in Sherman ft Redfield on Negli- a proper one for the jury. This at least 

genoe (8d ed. ), §§ 43, 44, and notes, will, to some extent, save us from the con- 

Tbe fact of an animal being upon the track tradictory decisions of different courts as 

is prima fneU evidence of neglieence in to what constitutes negligence. But the 

the company, they being bound, as be- contradiction will not be entirely obviated 

tween themselves and their passengers, to until the courts agree upon a definition 

keep the road free from all obstructions (which seems to be their proper province), 

of that character. Sullivan v. Philadel- and leave the jury, in all cases, by the aid 

I^iia, &C.R.R. Co., 30 Penn. St. 284. of the definition, to find the fact. No le^il 

Many courts hold that negligence is al- principle is violated by this oourse. On 

ways a question of fact to be found by the the contrary, as negligence by defendant, 

jnry, as an inference from the other facts and its absence on the- part of the plaintiff, 

proved. Others, equally numerous and whether deducible from disputed or undis- 

respectable, hold that, whero the facts are puted facts, are, in actions on the case for 

nndisputed, or clear or free from doubt, negligence, the principal facts to be found, 

<mt of which the negligence arises, it is a it would seem to be contrary to all leeal 

question of law for the court. In O'Neill principle that they should be found by tne 

«. Chicago, &c. R. R. Co., 1 McCrary court. It has always been understood that 

C. Ct. 505, the rule is said to be that, the effect of evidence was for the jury. If 

where the facts are undisputed, and such the evidence is irrelevant, it is to be ex- 

that only one conclusion can be drawn eluded; if relevant, to be admitted, — the 

from them, it is a question of law. But jury to determine its force and effect. 

tbe different courts, and different judges Such is the theory of the law, and any 

of the same court, differ as to whether a deviation in practice will be found not 

g^ven undisputed fact or state of facts war- only difficult but dangerous, 
nuits the inunenoe of negligence. Whether, 



218 LAW OP EVIDENCE. [PABT 17. 

original internal defect in the forging of the bar, undiscoverable 
by the closest inspection, and unavoidable by human care, skill, 
and foresight, is a point which no decision has yet sustained. On 
the contrary, in a recent action to recover damages occasioned 
by precisely such a defect, where the defendant moved tlie court 
below to instruct the jury that if he had used all possible care, 
and the accident happened without any fault on his part, but by 
reason of a defect, which he could not discover, the plaintiff was 
not entitled to recover, but the court refused to do so, and in- 
structed the jury that the defendant was answerable at all events ; 
it was held by the court above, that this instruction was errone- 
ous, the law being stated, in conclusion, in these words: ^^The 
result to which we have arrived, from the examination of the case 
before us, is this, that carriers of passengers for hire are bound 
to use the utmost care and diligence in the providing of safe, 
suflScient, and suitable coaches, harnesses, horses, and coachmen, 
in order to prevent those injuries which human care and foresight 
can guard against; and that if an accident happens from a defect 
in the coach, which might have been discovered and remedied 
upon the most careful and thorough examination of the coach, 
such accident must be ascribed to negligence, for which the 
owner is liable in case of injury to a passenger happening by 
reason of such accident. On the other hand, where the accident 
arises from a hidden and internal defect, which a careful and 
thorough examination would not disclose, and which could not 
be guarded against by the exercise of a sound judgment and the 
most vigilant oversight, then the proprietor is not liable for the 
injury, but the misfortune must be borne by the sufferer, as one 
of that class of injuries for which the law can afford no redress 
in the form of a pecuniary recompense. And we are of opinion 
that the instructions, which the defendants' counsel requested 
might be given to the jury in the present case, were correct in 
point of law, and that the learned judge erred in extending 
the liability of the defendants further than was proposed in the 
instructions requested." ^ 

§ 222 a. Carrier may refuse to take passenger. Where the action 
is against a common carrier of passengers, for refusing to receive 
and convey the plaintiff, the carrier may prove, as a good defence, 
that the plaintiff was a person of bad or doubtful character, or 

1 Ingalls V. Bills, 9 Het. 1, 15. 



PART IT.] CABRIEBS. 219 

of bad habits; or, that his object was to interfere with the defend- 
ant's interests, or to disturb his line of patronage; or, that he 
refused to obey the reasonable regulations made for the govern- 
ment of passengers in that line or mode of conveyance. And 
such carrier may rightfully inquire into the habits or motives of 
persons who offer themselves as passengers.^ But if the plaintiff 
has been received as a passenger and conveyed a part of the way, 
it seems he cannot be turned out on the ground that he is not 
a person of good character, so long as he was not guilty of any 
impropriety during the passage.^ (a) 

1 Jenks V, Colemaii, 2 SomD. 221. ' Coppin v. Braithwaite, 8 Jur. 875. 

(a) Carriers ^ oaUle. — It is now held been intimated (Mc Andrews v. Electric 

in roost of the United States that these Tel. Co., 17 C. K 8), and even expressly 

are common carriers, Agnew v. Contra held, that telegraph companies are liable 

Costa, 27 Cal. 425: McCoy v. Keokak, ke, to the same extent as common carriers 

By. Co., 44 Iowa, 424 ; St. Louis, &c. K. R. (Parks v. At. & Cal. Tel. Co., 13 Cal. 422), 

Co. V. Dorman, 72 IIL 504 ; Cnigin «. New it seems to be now generally agreed that 

York Cent. K. R. Co., 51 N. Y. 61 ; with such is not the law (Schwartz v. Atlantic, 

the motlificatiou that they are not liable &c. Tel. Ca, 18 Hun (N. Y.), 157), some 

for losses caused by the fault or vicious cases holding them liable only for reasona- 

qnalities of the animals tranatiorted. In- ble diligence and skill (Leonard v. N. Y. 

diana}iolis, &c K. U. Co. v. Jurey, 8 111. A. & B. Tel. Co., 41 N. Y. 544; Ellis v. 

App. 160 ; The Sara^ossa, 3 Woods C. Ct Am. Tel. Co., 18 Allen (Mass.), 226; West. 

380 ; Penn. v. Uuf. & Erie R. R. Co., 49 Un. Tel. Co. v, Carew, 15 Mich. 525); and 

K. Y. 204 ; Evans v. Fitchburg R. R. Co., others holding them liable for the greatest 

111 Mass. 142 ; Kan. P. R. R. v, Nichols, 9 diligence ana skUl. Rittenhouse v, Tel. 

Kan. 235. In England, and in a few of Co., 44 N. Y. 263; N. Y. & Mob. Tel. Co. 

the United States, however, they are held v, Dryburg, 35 Penn. St. 298; Stevenson 

not to be strictly common carriers, and v, Montreal Tel. Co., 16 U. C. 580. And 

may therefore stipulate against their own they may limit their responsibility by any 

negligence. McMauus v. Lancashire, &c. reasonable conditions. Wolf v. West Un. 

R R. Co., 4 H. & N. 328 ; Lake Shore, &c TeL Co., 62 Penn. St. 88. 
R. R. Co. V. Perkins, 25 Mich. 329 ; Mich., A condition that the company shall not 

&c. R. R. Co. V. McDonoueh, 21 Mich, be held liable for mistakes or delays in the 

165 ; Bankard v. B. & Oh. R. R. Co., 84 transmission or delivery, or for non-de- 

Md. 197. The carrier is liable for the de- livery, of any message, beyond the amount 

terioration of cattle between the time they received by said company for sending the 

are received by him and the time of actual same, was held unreasonable in True v. 

shipment Chicago, &c. R. R. Co. v, Int Tel. Co., 60 Me. 9; Camden v. West. 

Erickson, 91 111. 613. Union Tel. Co., 84 Wis. 471; Tyler v. 

When animals are killed by a train. Same, 60 111. 421; Hibbard v. West. Un. 

tbe nile of damages seems to be the value Tel. Co., 83 Wis. 558; Bartlett v. Same, 

of the animal when killed, and not that 62 Me. 209; Baldwin v. U. S. Tel. (k>., 45 

value less what the owner may get for it N. Y. 744. 

from the butcher or other person. He But where a message is sent subject to 
may abandon it to the company. Ohio & the condition that the company shall not 
Jiisfl. R. R. Co. V. Hays, 85 Ind. 173. be liable beyond a certain amount for an 
Tbongh, in Illinois, under a statute which, unrepeated messa^, the terms of repeat- 
bowever, does not specify the rule of ing and of insunng the accuracy ot the 
damages, it is held that tne owner must despatch being set forth in the condition, 
make the best use of the carcass possible, it was held that the company was no fur- 
in order to lighten the damages. Toledo ther liable, if not guilty ofgross negli- 
R R. Co. V. Parker, 49 111. 385. See also gence or fraud (Becker v. Western un. 
fod^ title Damages. TeL Co., 11 Neb. 87; Redpath r. West. 

Tel^jraph Companies,— Althou^ithaB Un. TeL Co., 112 Mass. 71), and the mere 



220 LAW OF EVIDENCB. [PABT IV. 

fact of as error in the meaaage aa deliyered, 49 Ind* 63; Hania v, Weat. Un. TeL Co., 

is not proof of groaa neffligence. lb.; 9 Phila. 88; Tyler v. Same, 60 IlL 821; 

Schwartz v. Atlantic, kc Td. Co., 18 Hun Weat Un. Tel Co. «. Otaham, 1 Col. 280; 

(N. Y.), 157; See also Paaamore v. Same, 9 s. c. 11 Am. Bep. 186 and n. A miatake 

Phila. 90; Mc Andrews v. Tel. Ca, 17 C. B. in the transmiaaion of a telcigram is priina 

8. But aee Bartlett v, Weat Un. Tel. Co., faeU negligence. Rittenhouae v. Ind. Tele- 

uH supra; Weat Un. TeL Ca v. Meekap graph Ca, 4i N. T. 268; poal, § 280. 



PART lY.] CASE. 221 



CASE, 

§ 223. Scope of this ohapter. Under this head it is proposed 
only to mention some general principles of evidence, applicable 
to the action of Trespass on the Case, in any of its forms : re- 
ferring to the appropriate titles of Adultery, Carriers, Libel, 
Malicious Prosecution, Nuisance, Trespass, Trover, Ac, for the 
particular rules relating to each of these heads. 

§ 224. Trespass, and trespass on the case. The distinction be- 
tween the actions of trespass pi et armis^ and trespass on the case, 
is clear, though somewhat refined and subtle. By the former, 
redress is sought for an injury accompanied with actual force; 
by the latter, it is sought for a wrong without force. The cri- 
terion of trespass vi et armii is force directly applied, or vi$ 
praxima. If the proximate cause of the injury is but a continua- 
tion of the original force, or vis impresia^ the effect is immediate, 
and the appropriate remedy is trespass vi et armii. But if the 
original force, or vis impressa^ had ceased to act, before the injury 
conmienced, the effect is mediate, and the appropriate remedy 
is trespass on the case. Thus, if a log, thrown oyer a fence, were 
to fall on a person in the street, he might sue in trespass ; but if, 
after it had fallen to the ground, it caused him to stumble and 
fall, the remedy could be only by trespass on the case.^ The intent 
of the wrong-doer is not material to the form of the action ; (a) 
neither is it generally important, whether the original act was 
or was not legal. Thus, though the act of sending up a balloon 
was legal, yet trespass vi et armis was held maintainable, for 
damage done by the accidental alighting of the balloon in the 
plaintiff's garden.' (&) 

1 Chittj on Plead. 115-120; Smith v, Knthford, 2 a & R. 858. 
s GniUe v. Swan, 19 Johna. 881. 

(a) Thus trespass vi et armi$ will lie is tlie only remedy against the master, and 

for an unintentional ininiy caused hy the in only maintainable when the act is negli- 

rijancing of a pistol-bail shot at a mark, gent or improper; and this rule appues 

Wdch V, Darandy 86 Conn. 182. to all cases where the carriage or cattle of 

(5) Where the act is that of the servant a master are placed in the care and under 

in performing his duty to his master, case the management of a serrant, a rational 



222 LAW OP BVIDENCB. [PABT IV. 

§ 225. Relative rights. For injuries to relative rightly the action 
on the case is the appropriate remedy. If the injury was without 
force, as, for example, enticing away a servant, case is the only 
proper remedy ; but if it be done with force, such as the battery 
of one's servant, or the like, the action may be in case, or in 
trespass vi et armii^ at the plaintiff's election ; and in the latter 
form he may join a count for a battery of himself.^ (a) 

§ 226. Absolute rigfats. Where the injury is not to relative, but 
to absolute rights^ the question whether the party may waive the 
force, and sue in trespass on the case, for the mere consequential 
damages, has been much discussed, with no little conflict of 
opinion. Where the tortious act was done to the property of the 
plaintiff, and the defendant has derived a direct pecuniary benefit 
therefrom, as, if he seized the plaintiff's goods and sold them as 
his own, it is clear that the plaintiff may waive the tort entirely, 
and sue in assumpiU for the price of the goods. So, though the 
property was forcibly taken, the force may be waived, and trover^ 
which is an action on the case, may be sustained, for the value 
of the goods. It is also agreed, that, where an injury was caused 
by the negligence of the defendant, but not wilfully, as by driving 
his cart against the plaintiff's carriage, trespass on the case may 
be maintained, notwithstanding the injury was occasioned by 
force, directly applied.^ And it has also been laid down, upon 
consideration, as a general principle, that where an injury has 
been done partly by an act of trespass, and partly by that which 

1 Chittv on Plead. 128 [153], 181 [229]; Ditcham v. Bond, 2 M. & S. 436; Wood- 
ward V. Walton, 8 New Rep. 476. 

^ Williams v. Holland, 10 Bing. 112; Rogers v. Imbleton, 8 New Rep. 117; More- 
ton t?. Hardem, 4 B. & C. 228; Blin v. Campbell, 14 Johns. 482; McAllister v. Ham- 
mond, 6 Cow. 342; Dalton v. Favour, 8 N. H. 465. 

agent. The agent's direct act or trespass ployer (Bnigess v. Carpenter, 2 S. C. 7); 
is not the direct act of the master. Each nor does an action lie by a prisoner con- 
blow of the whip, whether skilful and care- fined in the house of correction against 
ful or not, is not the blow of the master, the master for neglecting to provide him 
it is the voluntary act of the servant, with sufficient food, unless it be shown 
Sharrod v. London, &c. R. Co., 4 £ng. that the negligence was malicious. Will- 
Law & £q. 401. Cf. post, § 627. And lams v. Adams, 8 Allen (Mass.), 171. 
thi5i, even though such acts were acts of (a) When a right is violated the law 
force, and such that trespass would have ^ves a remedy. Ashby v. White, 1 S. L. 
been the only proper remedy against the C. 105. If the remedy is not obvious, the 
servant. Havens v. Hartford & N. H. R. law will take pains to find one. Peabody 
Co., 28 Conn. 69. It seems that there is v, Peters, 5 Pick. (Mass.) 1. Trespass vi 
no right of action for loss of services of a et armU will lie for an unintentional in- 
servant who is not a menial. Wounding jury caused by the gUncing of a pistol- 
and causing the loss of the services of a ball shot at a mark. Welch v. Dunnd, 
laborer who is working for a share of the 86 Conn. 182. 
crop gives no cause of action to the em- 



PABT IT.] CA8B. 228 

is not an act of trespass, but the proper subject of an action on 
the case, both acts being done at the same time, and causing 
a common injury, the party may sue in either form of action, at 
his election. This rule has been illustrated by the case of a weir, 
or dam, erected partly on the plaintiff's ground, and partly on 
that of another riparian proprietor.^ It has also been held, that 
case would lie for a distress, illegally made, after tender of the 
rent due ; ^ and for a tortious taking, under pretence of a distress 
for rent, where there was no right to distrain.^ In this last case, 
Lord Denman, C. J., proceeded upon the general ground, that, 
though the taking of the goods was a trespass, the owner was at 
liberty to waire it, and bring case for the consequential injury 
arising from the unlawful detention. Indeed, it is difficult to 
discern any reason why the party may not, in all cases, waive his 
claim to yindictive damages, and proceed in case for those only 
actually sustained ; or why he may not as well waive his claim 
for a part of the injury, and go for the residue, as to forgive 
the whole.* There are, however, several decisions, both Eng- 
lish and American, to the effect that, where the injury is caused . 
by force, directly applied, the remedy can be pursued only in 
trespass.^ 

§ 227. Several plaintUBi. In this action, as in others, if there 
are ieveral plaintiffs, they must prove a joint cause of action, such 
as damage to their joint property, slander of both in their joint 
trade or employment, and the like, or they will be nonsuited.^ If 
their interests are several, but the damage is joint, it has been 
held sufficient J 

1 Wells V, Ody, 1 M. & W. 459, per Ld. Abixiger; Id. 462, per Parke, B.; Moore 
V. Robinson, 2 B. & Ad. 817; Knott v. Digges, 6 H. & J. 280. 

s Branscom v. Bridges, 1 B. ft C. 145; 3 Stark. 171; Holland v. Bird, 10 Bing. 15. 

< Smith V. Goodwin, 4 R ft Ad. 418. 

« See Scott v. Sheppard, 2 W. Bl. 8»7; Pitts v. Gaince, 1 Salk. 10; Chamberlain v. 
Hazlewood, 5 M. ft W. 515; 8 Jnr. 1079; Muskett v. Hill, 5 Bing. N. C. 694; Parker 
V. Elliot, 6 Munf. 587; Van Horn «. Freeman, 1 Halst. 322; Haney v. Townsend, 1 
McCord, 207; Beam r. Rank, 8 S. ft R. 215; Parker v, BaUey, 4 D. ft R. 215; Morau 
9, Dawes, 4 Cowen, 412. 

» These decisions are referred to in 1 Met. ft Perk. Di^. pp. 69, 70; 1 Harrison's Dig. 
42-47. But in some of the United States, the distinction between the two forms of 
action has been abolished by statute. Thus, in Maine, it is enacted, "that the declara- 
tion shaU be equally good and valid, to all intents and purposes, whether the same 
shall be in form a decbration in trespass, or trespass on the case." Rev. Stat. c. 115, 
S 18. So, in effect, in Indiana. Hines v, Kinnison, 8 Blackf. 119. And in Connec- 
tieat, Rev. Stat. 1849, tit 1, § 274; Iowa, Rev. Stat. 1851, f 1788. 

• Cook V. Batchellor, 2 B. ft P. 150; 2 Saund. 116 a, n. (2); Solomons v. Medez, 
1 Stark. 191. 

Y Coiyton v. lithebye, 2 Saond. 115; Weller v. Baker, 2 Wila. 414. 



224 LAW OP EVIDENCE. [PABT IT. 

§ 228. Several defendants In tort. If the action is founded in 
tort, it is not necessarj to prove all the defendants guilty ; for as 
torts are several in their nature, judgment may well be rendered 
against one alone, and the others acquitted, (a) But if the action 
is founded on a breach of an express contract, it seems that the 
plaintiff must prove the contract against all the defendants.^ 

§ 229. Time. The particular day on which the injury is alleged 
to have been committed is not material to be proved. Originally, 
every declaration in trespass seems to have been confined to a sin- 
gle act of trespass ; and if it was continuous in its nature, it might 
be so laid ; in which case it was considered as one act of trespass. 
Subsequently, to save the inconvenience of distinct counts for each 
tortious act, the plaintiff was permitted to consolidate into one 
count the charge of trespasses done on divers days between two 
days specifically mentioned ; in which case it is considered as if it 
were a distinct count for every different trespass. In the proof of 
such a declaration, the plaintiff may give evidence of any number 
of trespasses within the time specified. But he is not obliged to 
avail himself of this privilege ; for he may still consider his decla- 
ration as containing only one count, and for a single trespass. 
When it is considered in this light, the time is immaterial ; and 
he may prove a trespass done at any time before the commence- 
ment of the action, and within the time prescribed by the statute 
of limitations. But the plaintiff is not permitted to avail himself 
of the declaration in both these forms at the same time. He is 
therefore boimd to make his election, before he begins to introduce 
his evidence ; and will not be permitted to give evidence of one or 
more trespasses within the time alleged, and of another at another 
time.' 

§ 280. Malice. Negligence. If the plaintiff charges both malice 
and negligence upon the defendant, in doing the act complained of, 
the count will be supported by evidence of the negligence only? (6) 

^ Ireland v. John.son» 1 Bing. N. C. 162 ; Bretherton v. Wood, 8 B. & B. 54; Max 
V, Roberta, 12 East» 89; mpra, § 214. 

* Pierce v, Pickins, 16 Mass. 472, per Jackson, J. ; Brook v. Bishop, 2 Ld. Rayni. 
828; 7 Mod. 162; 2 Salk. 689; Monckton v. Pashley, 2 Ld. Raym. 974, 976; Hume 
V. Oldacre, 1 Stark. 851; 1 Saund. 24, n. (1), by Williams, ^etpott, § 624. 

* Panton v. Holland, 17 Johns. 92. 

(a) In Turner 9. Hitchcock, 20 Iowa, 810, committed, it operates to dischazge aU the 

it is held that where the plaintiff in an ac- wrong-doers, w right k Cole, JJ., dis- 

tion of trespass intermarries with one of senting. 
the joint trespassers after the trespass ia (6) And see ante, { 208, note (a) ; 218, 



PABT IT.] CASE. 225 

And where the action is against a carrier^ or an innkeeper, for the 
negligent keeping of the goods in his care, whereby they were lost, 
proof of the loss affords presumptiye evidence of negligence on the 
part of the carrier or innkeeper or his servants.^ So, where the 
action \» against a railway corporation, for the destruction of prop- 
erty by sparks emitted from their engine, the fact of the premises 
having been fired by sparks from the passing engine is prima facie 
evidence of negligence on the part of the company.^ (a) 

1 Dawson v, Chamney, 5 Ad. & £1. N. s. 164; Story on Bailments, §§ 472, 52d. 
See supm, §§ 219, 222. 

* Piggot V, Eastern Railroad Co., 8 M. Gr. k Sc. 229. And see McCready v. S. 
Gar. Rtuiroad Co., 2 Strobh. 856. See also ante, § 222, n. 

note h. Where tlie declaration charges which great diversity of opinion appears 

that the defendant wronfffully kept a horse in the decisions of tne coarts. It is un- 

accostomed to bite mankind, and that the questionable that the burden of proof is 

defendant knew it, it need not aver that on the plaintiff, and mere proof of an in- 

the iniury complained of was received jury to the plaintiff, without connecting it 

through the defendant's negligence in witn the defendant in any way, is not 

keeping the horse. PoppIeweU v. Pierce, enough to make a prima facie case of neg- 

10 Gush. 509 ; May v. Bnrdett, 9 Ad. & ligence; but if, in proving the iigury, it is 

£1. N. S. 101 ; Jackson v. Smithson, 15 al80 proved that tne injury was caused by 

M. & W. 563; Card v. Case, 5 M. G. & S. the defendant's property, e, g, when one is 

622; Kerwhacker v. C. C, &c R. B. Co., injured by the derailing of defendant's cars, 

8 Ohio, N. 8. 172. or similar accidents, the question ari8«« 

(a) It has already been seen that it is whether this is prima facie evidence of 

not necessary to allege negligence in an ac- negligence. It has been held that the 

tion against a common carrier of goods, mere showing that the ii^ury was caused 

where the action is based on his common- by such an accident, without showing fur* 

law liability as insurer, but if the carrier ther the negligence or carelessness of the 

proves that the loss happened from a cause defendant or some defect in the machinery 

excepted in his contract, or that his liabil- or propertv in question is not enough to 

ity is restricted by special stipulations in prove negligence. Kendall v. Boston, 118 

the contract, then it is necessary to prove Mass. 284; Ward v, Andrews, 8 Mo. App. 

negligence on his part, and the burden of 275; Hutchinson v. Boston Gas Light Co., 

proof of this is on the plaintiff Ante, 122 Mass. 219; Ruffner v. Cincinnati, &c. 

§§ 218, 219, 220, and notes. B.R. Co., 84 Ohio St. 96. But it is not 

It has also been seen that it is necessary often that this special question arises, for 

to aUege snd prove negligence sgainst a generally, in proving the accident, circum- 

carrier of passengers, and due care in the stances are proved which have a logical 

pluntiff in order to charge him with an tendency to show the nesligence of the 

Injury received by the passenger. § 222, defendant, and this is held in most courts 

and notes. to be enough to throw the onus of rebut- 

The principles of all the actions which ting this evidence on the defendant. Shear- 
are based on negligence, whether of com- man & Redfield, Negligence, § 5; Balti- 
iDon carriers or others, are the same, and more,&c. R.R.Co. v. Noell, 82Gratt.(Va.) 
the points to be proved are: 1. The in- 894 ; Peoria, &c. R. R. Co. v. Reynolds, 88 
jury to the plaintiff; 2. That it was prox- 111. 418 ; Tuttle v, Chicago, Ac. R. R. Co., 
imately caused bv the negligence ot the 48 Iowa, 286; Yerkes v. Keokuk, &c. Packet 
defendant; 8. That the plaintiff's own Co., 7 Mo. App. 265 ; Feital v. Middlesex 
negligence did not contribute to produce R, R. Co., 109 Mass. 898 ; Carpiie v. Lon- 
it Chicago City Ry. Co. v. Freeman, 6 don, &c Ry. Co., 5 Q. B. 747. Proof that 
IlL App. 608. a person or corporation has failed to com- 

The first is proved by any relevant evi- ply with city ordinances is generally held 

denee, just as any other material fact in to be proof of negligence. Koster v. 

the plaintiff^s case is proved. Noonan, 8 Daly (N. Y.), 231 ; Hanlon v. 

The second involves several points on South Boston R. R. Co., 129 Mass. 810 ; 

YOL. IL 15 



226 LAW OP EVIDENCE. [PABT IV. 

§ 230 a. Deceit Where the damage for which the action is 
brought has resulted from the murepre$entatum of a fact bj the 

Siemers v. Eisen, 54 Cal. 418; Willy v. as he was bonnd to use, ooald have averted 
Malledy, 6 Abb. (N. Y.) N. Cas. 97; Dey- the mishap, then the intervention of the 
lin V. Gallagher, 6 Daly (N. Y.)> 494. As nefligfnce of thini parties wiU not be a 
to what is evidence of negligence in car- defence to him. Slater v, Mersereau, 64 
riprs, see anU, §§ 218, 219, 222, notes. N. Y. 188; Shearman k Redfield, Negii- 
Proof of the negligence of the defendant's genoe, § 10. Cf. King «. Cohoes, 77 J^, 
servants, while acting within the scope of Y. 83. It has been a vexed qnestion, 
their employment and for the benelit of whether the court or jury should decide 
the master, is sufficient proof of the neg- what is negligence in each case. If, on 
ligence of the defendant, though he is not undisputed facts, or on the plaintiff's own 
liable for their acts which in no way relate showing in putting in his case, the irre- 
to the service, although such acts may sistible conclusion is that no evidence of 
have been done during the service (Bry- negligence has been put in, the court may 
ant V. Rich, 106 Mass. 180; Palmer v. withdraw the case from the jury, and so 
Railroad, 3 S. C. 580; Jackson v. Sec. Av. if negligence appears irresistibly proven. 
R. R. Co., 47 N. Y. 274; Hanson v. E. so that no reasonable jury could find 
& N. A. R. R. Ca, 62 Me. 84 ; Garret- against it. Chicago, &c. R. R. Co. v. 
zen V. Dnenkel, 50 Mo. 104), unless the Scates, 90 111. 586 ; Buckley v. New York, 
act is wanton and wilful, and in no sense &c. R. R. Co., 48 N. Y. Super. Ct 187 ; 
incidental to the discharge of the sei'vant's Delaware, &c. R. R. Co. v. TotTey, 38 N. J. 
duty. Isaacs v, Thinl Av. R. R. Co., 47 L. 526 ; Hoyt v. City of Hudson, 41 Wise. 
N. Y. 122. See also ante, § 68. A passcn- 105 ; Palinsky v. New York, &c R. R. Co., 
ger injured by a quaiTel between otners on 82 NT. Y. 424 ; International, &c. R. R. Co. 
the cars may recover damages of the car- v. Halloran, 53 Tex. 46 ; Zimmerman v. 
rier. It is his duty to see tnat passengers Hannibal, &c. R. R. Co., 71 Mo. 476; Bivn- 
are not iuuired by dlsonlerly conduct on nan v. Fair Haven, &c. R. R. Co., 45 Conn, 
his cars. Fitts. & Con. R. R. Co. v. Pillow, 284. But where, though the facts arH un- 
Pa., Jan. 1875, 7 Leg. Gaz. 13. As to the disputed, they are such as might or might 
measure of damages see post^ § 253. not justify an inference of negligence, it 
It must also l^ shown that the negli- has been said that the court should decide 
gence is the proximate cause of the injury whether there is negligence (Fletcher v. 
complained of. Bamnger v. New York, Atlantic, &c. R. R. (>>., 64 Mo. 484) ; and 
ka. R. R. Co., 18 Hun ( N. Y. ), 398; Penn- also thst it is for the jurv (Mississippi, &c 
sylvania, &c. K R. Co. v. Lacey, 89 Pa. St. R. R. Co. v. Mason, 51 Miss. 234 ; Central 
458 ; Pennsylvania, &c. v. Hensil, 70 Ind. Branch, &c. R. R. Co. v. Hotham, 22 Kan. 
669; Kennedy r. New York, 73 N. Y. 41). It is certain that the courts have very 
365. But the interposition of a natural much restricted the limits of the facts which 
force, such as the law of gravitation, a areconclusive evidence of negligence. Mem- 
running stream, wind, &c., by which the phis, &c. R. R. Co. v. Lyon, 62 Ala. 71; Cot- 
results of the defendant's careless act are trell v. Chicago, kc. R.K. Co., 47 Wise. 634; 
communicated to tbe plaintiff or his prop- Fairbury v, Rogers, 2 111. App. 96; Ciucin- 
crty, does not render such act any the less nati, &c. R. R. Ca v. Ductisrme, 4 111. 
the proximate cause, as where burning oil App. 178 ; Sheehy v. Burger, 62 N. Y. 
is carried on running water, from place to 558. But in cases where the exiMence of 






place. Kuhn v. Jewett. 32 N.J. Lq. 647. the facts which are relieil on to show negli- 

Cf. Wooley v. Grand Street, &c. Ry. Co., gence is disnuUnl, or where, as is stated 

83 N. Y. 121. above, thougn the exix/ntc^ of such facts 

The third point to be proved is that the is clear, yet tliay are not of so clearly 

injury complained of was not caused by negligent a nature that a jury would bie 

the plaintifrs oum negligence, either solely, bound to find negligence, the mfuority 

or in connection with the negligence of the of the decisions holds that the iiiir ahoald 

defendant. For a general discussion of have all the facts in the case which have a 

this point and the question of comparative tendency to prove negligence, submitted 

negligence, see jM>s<, §232 a, note (a). As to to them with proper instructions by the 

the interposition of the negligence of third judge, and should decide whether or not 

parties, concurrently with the negligence the plaintiff or defendant waa negligent, 

of the defendant, and acting with it to pro- Linnehan v, Sampson, 126 Mass. 506 ; 

(luce the injury, the rule seems to be that Williams v. Atchison, &c R. it. Co., 22 

if the defendant, by using such diligence Kan. 117 ; Caaaidy v, Angell, 12 R. L 



PART ly.] CASE. 227 

defendant, it is necessary to prove not only that the statement 
was false in fact, but that it was made fraudulently, or without 
probable cause ; for if it was not known to be false by the party 
making it, but, on the contrary, was made honestly, and in full 
belief that it was true, he is not liable at law. Thus, where the 
allegation was, that the defendant falsely represented to the sheriff, 
that one Ji W., then in custody, was the same J. W. against whom 
the sheriff (plaintiff) had another process; it was held a good 
defence, that the defendant believed, upon good and probable 
grounds, that the representation was true.^(a) So, if an agent 
assume to act as such after the death of his principal, but in justi- 
fiable ignoitince of that fact, he is not liable for such misrepresen- 
tation of his agency.^ 

§ 280 b. Injuries to land. Whenever this action is brought for 
an injury to land^ it is sufficient for the plaintiff to allege and prove 
his poisession of the property, in order to entitle him to the action 
against a stranger. If the possession was in fact vacant, proof of 
his title alone will be constructive proof of his possession. The 
nature and value of his interest will become material, only as they 
affect the amount of the damages ; and for this purpose an equi- 
table title may be shown, and will be sufficient to entitle him to 
full damages.* (6) 

1 CoUins V. Evans, 8 Jur. S45; 5 Ad. & El. N. 8. 804, 820. If the party who made 
the representation knew it at the time to be untrue, this is sufficient evidence to sus- 
tain tlie allegation of fraud and deceit, though he did not intend actually to defraud 
or injure the other. Watson v. Poulson, 15 Jur. 1111. And see Polhill v. Walter, 3 
B. & Ad. 118. But in the sale of real estate, if the vendor make representations re- 
fpecting the land which are materially erroneous, going to the basis of the contract, 
equity will rescind the purchase, though the vendor had no intention to deceive. Tay- 
lor V, Fleet, 1 Barbour, 471. And see Don^ett v. Everson, 8 Story, 783; 1 Story, £q. 
Jur. § 193. As to goods, see Johnson v. Peck, 1 Woodb. & Minot, 834. 

* Smout V. Ilbery, 10 M. & W. 1. And see Story on Agencv, § 265 a; Pasley v. 
Freeman, 3 T. K. 57; Haycraft v. Creasy, 2 East, 92; Wilson v. Fuller, 3 G. & D. 570. 

* Gardner v. Heartt, 1 Comst. 528; 2 Barb. S. C. 165; Schenck v. Cutti-ell, 1 
N. J. 6. 

447;Watkiiisv.AtlanticAve.R.B.Co.,20 457; Hunt v, Salem, 121 Mass. 294; 

Hnn (N. Y. ), 237; Philadelphia, Ac R. R. Oilman v. Noyes, 67 N. H. 627). 

Co. V. KiUips, S8 Pa. St. 405 ; Ditberner v. (a) A false statement of value is not 

ChiauK>,4bc. R. R. Co., 47 Wise. 138; Shaf- actionable. Ellis v, Andrews, 56 N. Y. 

ter V. Evans, 58 Cal. 32; Towne v, Nashua, 83. But see Simar v. Canaday, 53 N. Y. 

4b;. R. R. Co., 124 Mass. 101 ; Cook v. 806, that it is, if it is an affirmation of a 

Union, &c. R. R. Co., 125 Mass. 57 ; Taber fact rather than expression of an opinion. 

V. Delware, ftc. R. B. Co., 71 N. Y. 489 ; (b) The diversion, by digging a well on 

Houston, &c R. R. Co. v. Randall, 50 Tex. one*s own premises, of an unknown sub- 

254 ; Swoboda v. Ward, 40 Mich. 420 ; terranean current of water from the well 

Grand Rapids, Ac. R. R. Co. v. Martin, 41 of an adjoining proprietor fives to the lat- 

Mich. 667 ; Erd v. St. Paul, 22 Minn. 443 ; ter no cause of action agamst the former. 

Woodfolk V. Macon, &c. R. R. Co., 56 G& Chase v. Silverstone, 62 Me. 175; Chase- 



228 LAW OF EVIDENCE. [PABT lY. 

§ 231. Defence. Oteneral ieene. Under the gefieral u$%ie^ the 
defendant is ordinarily permitted to give evidence of any matters 
ex post fdcto, which show that the cause of action has been dis- 
charged, or that in equity and conscience the plaintiff ought not to 
recover.^ Thus, a release^ a farmer recovery^ or a $atitfaction, may 
be given in evidence.^ So, also, in an action for enticing away a 
servant, the defendant may, under this issue, give evidence that 
the plaintiff has already recovered judgment for damages against 
the servant, for departing from his service, and that since the 
commencement of the present action, this judgment had been sat- 
isfied.^ So, in an action on the case for beating the plaintiff's 
horse, the defendant may show that it was done to drive the horse 
from his own door, which he obstructed.^ And in an action for 
obstructing ancient lights, by the erection of a house, a customary- 
right so to do may be given in evidence.^ So, in an action for 
hindering the plaintiff in the exercise of his trade, it may be shown, 
under this issue, that the trade was unlawful ; ^ and in an action 
for destroying a rookery, it may be shown that it was a nuisance.^ 
And, in general, wherever an act is charged in this form of action 
to have been fraudulently done, the plea of not guilty puts in issue 
both the doing of the act, and the motive with which it was 
done.® 

§ 232. Bpedal pleas. But to this rule there are some exceptions ; 
such as the statute of limitations; justification, in slander, bj 
alleging the truth of the words; retaking on fresh pursuit of a 
prisoner escaped; which cannot be given in evidence, unless 
specially pleaded.* 

§ 282 a. Hegligenoe on part of plaintift The defendant may also 

1 Bird V. Randall, 8 Barr. 1353, per Ld. Mansfield. 

s Ibid.; YeW. 174 a, n. (1), by Metcalf ; Stephen on Plead. 182, 188 (Am. ed. 1824); 
Stafford v. Clark, 2 Bing. 877; Anon., 1 Com. 278. 
s Birdv. Randall, 3 Bnrr. 1845. 
4 Slater v. Swann, 2 Stra. 872. * Anon., 1 Com. 278. 

* Tarleton v, McCkwIey, Peake's Cas. 207, per Ld. Kenyon. 

7 Hannam «. Mockett, 2 B. & C. 984. Bnt if it be a publio nnisance, not specially 
injurious to the party, he has no right to abate it. Dimes v. Petley, 16 Ad. & El. N. 
8. 276. 

^ Mummery v. Paul, 8 Jur. 986. So, in an action on the case for wrongfhlly keep- 
ins a ferocious dog, knowing him to be of such a disposition, the plea of not goilty is 
held to put in issue the BcUnter, Card v. Case, 12 Jur. 247. 

• 1 Chitty on PL pp. 488, 484. 

more v. Richards, 7 H. L. Cas. 349; Han- 11 Am. L. Rap. n. 8. 14; Bnssell v. Salis- 
son V. M'Cue, 42 Cal. 808. But see Sweet bnry Manuf. Co., 48 N. H. 569. 
«. Cutts, 50 N. H. 439, and note to 8. o. 



PAST IV.] CASE. 229 

prove, in defence, that the injury might have been avoided by the 
use of due eare an the part of the plaintiff; for the question is, not 
only whether the defendant did an improper act, but whether the 
injury to the plaintiff may legally be deemed the consequence of it 
But it will not be sufficient, aB a complete defence to the action, 
to show merely that the plaintiff is chargeable with want of due 
care, unless the injury was entirely caused by such omission ; for 
if it only contributed to it in part, the plaintiff may recover ; and 
his own misconduct in that case, if available to the defendant, will 
go in reduction of damages.^ (a) And if the plaintiff was at the 

^ Batterfield v. Forrester, 11 East, 60; Marriott v. Stanley, 1 M. & O. 668; Bridge 
«. Grand Junction Railw. Co., S M. & W. 244; Clayards v. Dethick, 12 Ad. & m. 
K. 8. 439 ; Perkins v. Eastern R. R. Co., SO Me. 307 ; Greenland v. Chaplin, 19 Law 
J. Exch. 278. See Moore v. Abbot, 32 Me. 46. 

(a) One who is injured by the mere 109 Mass. 286; McCandless v. McWha, 22 

negligence of another cannot recover at Penn. St. 272. The care which the plaintiff 

law or in equity any compensation for his is obli^d to use is that which is reasonable, 

injury if he, by his own or his agent's or- according to his situation; he is not held to 

dinaiy negligence or wilful wrong, con- the utmost possible exertion of care, 

tributed to produce the injury of which Chicago, &c. R.R.C0. v. Douahne, 75 111. 

he complains, so that, but for his concur- 106; Thurber v, Harlem Bridge, &c. Ry. 

ring and co-operating fault, the injury Co., 60 N. Y. 326. Whether, if one be 

would not have happened to him, except engaged in an unlawful act, — travelling 

where the direct cause of the injury is the on Sunday for instance, for pleasure or on 

omission of the other party, after becoming business, in violation of the statute, — he 

aware of the injured party's negligence to may maintain an action for an injury by 

use a proper degree of care to avoid the negligence, the authorities differ. That 

Gonaeouences of such n^Iigence. Shear- he cannot, see Jones v. Andover, 10 Allen 

man ft Redfield on Negligence, § 25. St (Mass.), 18; Cratty v, Bangor, 57 Me. 428 ; 

Louis, Ac R. R. Co. v. Mathias, 50 lud. 65; Johnson v, Irasbuig, 47 Vt. 28; Smith v. 

Richmond,&c.R.R. Co. «. Morris, 31 Gratt. B. & M. R. R. Co., 120 Mass. 490; Mc- 

( Va. ) 200; South, &c R. R. Co. v. Thomp- Grath v. Merain, 112 Mass. 467. That he 

son, 62 Ala. 494; Lake Shore, &c. R. R. Co. can, see Sutton v. Wauwatosa, 29 Wis. 21; 




mg tne iigury, 

the defendant 8 negligence does cause it, also ante, § 199. In Baker v, Portland, 

the plaintiff can recover. Gould v. Mc- 58 Me. 199, the rule is said to be that 

Kenna, 86 Pa. St. 297; Frick v. St. Louis, the plaintiff in such cases may recover 

&c. R.R, Co., 5 Mo. App. 435. Where a unless the unlawful act coiUribuUd to 

party injured so that daath must follow if prodrux the injury. Cf. Steele v. Burk- 

relief is not had employs a competent phy- hardt, 104 Mass. 59. In some states, the 

sician, the fact that a mistake mav nave rule that the plaintiff cannot recover if his 

hwn made in the treatment which con- own negligence contributes to cause the 

tributed to the death does not release the injury, has been modified by introducing 

defenduits from liability. Santer v. N. Y. a comparison between the n^ligence of 

C. R. R. Co., N. Y. Ct of App., 14 Alb. the parties, and if, by such comparison, 

L. J. 38; Collins v. Council Bluffs, 32 Iowa, it appears that the negligence of the plain- 

824. The neglect of a patient to follow tiff was slight and that of the defendant 

the directions of his surgeon is prima was gross, then the plaintiff is still enti- 

/ade evidence of contributory negligence, tied to recover. Chicago, &c. R. R. Co. n, 

and, unless rebutted, releases the latter Harwood, 90111. 425; 'n>ledo,&c. R. R. Co. 

from liability from injuries alleged to be v. O'Connor, 77 III. 391. In such cases 

due to his n^^ligence. Geiselman v. Scott, it is incunilient on the plaintiff to show 

25 Ohio St. 86; Hubbard v. Thompson, Uiis comparitson, and to prove that his 



280 LAW OP EVIDENCE. [PART IV. 

time a passenger in the vehicle of another, he becomes so far 
identified with the owner and his servants as that their want of 
due care may be shown in defence of the action.^ 

§ 232 b. Co-servants. Where the injury complained of was oc- 
casioned by the negligence of a person in the defendant's employ- 
ment, it has often been found extremely difficult to determine 
whether the relation of master and servant existed, so as to charge 
the defendant or not. But by comparing the adjudged cases, the 
principle to be deduced from them seems to be this, — that where 
the person employed is in the exercise of a distinct and indepen- 
dent employment, the owner parting, for the time, with all control 
over that which is the subject of the bailment or contract, and 
having no control over the conduct of the person employed, or his 
servants, such person stands in the relation of a sub-contractor 

1 Thorogood v, Biyan, 8 M. 6. & S. 115; CattUn v. Hills, Id. 123. 

negligeure is slight compared with that ligenre, §112; Ijoaisville, &c. R.R. Co. v. 

of the defendant. Chicago, &c. R. R. Co. Boland, 53 Ind. 398; Benton v. Central R.R. 

«. Harwood, tU sup. ; Rockfoixl, &c. R. R. Co., 42 Iowa, 192; Chicago City Ry. Co., 

Co. v. Delaney, 82 111. 198 ; Schmidt v. v. Freeman, 6 111. App. 608. Perhaps the 

Chicago, &c. R. K Co., 83111. 405; Hughes apparent conflict of Uie decisions may be 

«. Muscatine County, 44 Iowa, 672; Quinn explained by the fact that in cases where 

v. Donovan, 85 111. 194. This rule of it is held that the defendant must show 

comparative negligenu is not by any contributory negligence, the plaintiff, ^ in 

means universally admitted in the united putting in his case, has shown facts which 

States, and has not been allowed in the make out a prima fade case of due care; 

recent cases of Marble v. Ross, 124 Mass. and when the courts say the burden of 

44 ; Pennsylvania Ry. Co. v. Righter, 42 proof of contiibutory negligence is on the 

N. J. L. 180; Potter r. Warner, 91 Pa, St defendant, they mean that it is incumbent 

i362. In Massachusetts, by statute, con- on the defendant to meet this prima fade 

tributory negligence, unless gross, is not a case of due care. 

defence to an action against a railroad In addition to the remedies which the 

company for negligence at a crossing, injured party has against those by whose 

Pub. Stat. c. 112, § 213. This statute is negligence he is injured, there is also, in 

based on the policy of keeping the railroad most States, a statutory remedy given, if 

companies vi^lant at such places, and is the injured person dies, to his next of kin 

a departure from the common-law rule on or personal repi^esentatives. In some States 

this subject As to the burden of proof, this remedy is given only when the injury 

tlie generally received rule seems to be is caused by the negligence of a railroad 

that the burden of showing contributory or steamboat company, or some common 

negligence of the plaintiff is on the de- carrier. In others, it is good against any 

fendant. Indianapolis, &c. R. R. Co. v one. The negligence must be proved just 

Horst, 93 U. S. 291; Sanders v. Reister, as if the action were brought by the in- 

1 Dak. Terr. 151 ; Hoyt v. City of Hud- lured party, and contributory neglisence 

son, 41 Wis. 105 ; Snyder v. Pittsburgh, by the nominal plaintiff will not defeat 

&c. R. R. Co., 11 W. Va. 14; Holt v. tie action. Shearman & Redfield, Neff- 

Whatley, 51 Ala. 569; Texas, &c. R.R. Co. ligence, §§ 290-302. This remedy is purely 

1^. Murphy, 46 Tex. 356; Hocum v. Weith- statutory and does not exist at common 

erick, 22 Minn. 152; but the better rule law. Sullivan v. Union Pacific R.R. Ca, 

is that the burden of showing due care is 1 McCraiy, Cir. Ct. 301. Cf. Edgar i^. 

on the plaintiff. Lane v. Crombie, 12 Castello, 14 S.C. 20; Armstrong v. Beadle^ 

Pick. (Mas.s.) 177; Murphy v. Deane, 101 6 Sawyer, Cir. Ct. 484. 
Ma.ss. 455 ; Shearman & Redfield, Neg- 



PABT IV.] CASE. 281 

only, and the persons whom he employs are his own servants, and 
not those of the principal party ; and therefore the latter is not 
liable for their negligence or misdoing. It is to this point, there- 
fore, that the evidence on each side should be directed.^ Thus, 
the trustees under a public road act were held not responsible for 
the negligence of the men employed in making the road, the work 
being carried on by a regular surveyor in their absence, whom they 
had no right to turn out of employment.^ So, where a licensed 
drover imdertook to drive an ox to the slaughter-house, and sent 
him by his own servant, through whose negligence the ox did 
damage, it was held that the drover, and not the owner of the ox, 
was liable for the damage, as he was in the exercise of an inde- 
pendent employment, and had the exclusive control of the subject 
of the contract.^ 

1 Story on Agency, § 454 a (2d ed.)f 228-283; Powell v. Deveney, 8 Cnsh. 800. 
Lynch v. Nardin, 1 Ad. & £11. N. 8. 29. 

« Duncan v. Findlater, 6 CI. & Fin. 894, 910. 

* Milligan v. Wedge, 12 Ad. & El. 737. And see Burgess «. Gray, 14 Law Joum. 
N. 8. 184; Quarnian v. Burnett, 6 M. & W. 499; Rapfion v. Cubitt, 9 M. & W. 710; 
White V. Hague, 2 Dowl. k Ry. 83; Earl v. Hall, 2 Met 358. These, and other cases 
cited in them, devolve the liability on the person who was the master of the enterprise. 
Other cases, apparently nearly similar in their facts ^^ye held the general owner liable; 
but it will be found, on examination, that in those cases the general owner of the subject 
was also the master of the work, retaining the management and control, and rendering 
the contract in essence but a case of mere day labor or ordinary service. See Littledale 
V. Lord Lonsdale, 2 H. Bl. 267, 299; Stone v. Codman, 15 Pick. 297; Waustall v. Poolev, 
6 CI. & Fin. 910, n.; Randleson v. Mun-ay, 8 Ad. & EI. 109; Sly v. Edgely, 6 Esp. 6; 
Matthews v. W. Lond. Waterw. Co., 4 Campb. 408; I^slie v. Rounds, 4 Taunt. 649. The 
case of Bush v, Steinman, 1 B. & P. 404, in which the owner of a house was held liable 
for the negligence of laborers employed by a contractor, who had undertaken to repair 
the house hy the job, was disapproved as an extreme case, by the Ld. Chancellor, in Dun- 
can V. Findlater, 6 CI. & Fin. 903, and by Ld. Brougham, Id. 909; and was doubted 
by Ld. Denman, in Milligan v. Wedge, supra, and it has since been overruled in Reedie 
V. N. West Railw. Co., 18 Jur. 669. (a) By the Assizes Act of 11 Geo. IV. and 1 W. 
I v., c. 68, § 8, common carriers are rendered liable for the felonious acts of servants in 
their employment. Under this statutory provision, a railway corporation is held liable 
for the acts of the servants of those who had undertaken, by special contract, to do 
this part of the business. Machu v, London & Southwestern Railw. Co., 12 Jur. 501. 

Where several persons are employed in the same service, and one of them is injured 
by the carelessness of another, the master or employer is not liable. Winterbottom v. 
Wright, 10 M. & W. 109; Strange v. McCormick, 8 Am. Law Jour. N. 8. 898; Far- 
weU V. Boston & Worcester R. R. Corp., 4 Met. 49; Priestley v. Fowler, 3 M. & W. 1; 
Murray v. S. Car. R. B. Co., 1 McMuIl. 885 ; Hayes v. Western R. R. Corp., 3 Cush. 
270. (ft) 

(a) The case of Bush v, Steinman resulting to a third person from boards do- 

was examined at considerable length by posited in the highway in front of the 

Thomas* J., in Hilliard v. Richardson, 8 land by a teamster in the employ of the 

Gray (Mass.), 349, and its authority was carpenter, and intended to be used in such 

denied. That case decides that the owner alteration and repair, and in accord with 

of land who employs a carpenter, for a this decision is McCarthy v, Portland 

specific price, to alter and repair a build- Second Parish, 71 Me. 318. Cf. Eillea 

ing thereon, and to furnish all materials v. Faxon, 125 Mass. 485. 

for this purpose, is not liable for damages (6) The general rule is, that the master 



282 LAW OF EVIDENCE. [PABT IV. 

is not liable to a servant for iignries caused scribed sbove. To illustrate this prind- 
by the negligence of a fellow-seryant. This pie, the following cases may be of use, and 
negligence is one of the risks which the especially if they are compared with the 
servant takes into account in entering the cases cited under the next exception to 
employment. Kelley v. Boston Lead Co., the general rule, which is closely connected 
128 Mass. 456; Quincy Mining Co. v. with this exception, by which servants who 
Kitts, 42 Mich. 84 ; Qormley v. Ohio, &c. are employed in distinct departments of 
KB^Oo., 72 lud. 81, et cases jMum'm; Sum- the same employment are aUowed to sue 
merhavs v. Kansas, &c. R.R Ca, 2 Col. T. the master for the negligence of each other. 
4^4; MuUan v, Philadelphia S. 3. Co., 78 The capUin of a ship is not a fellow- 
Pa. St. 26 ; Mansfield Coal & Coke Co. v. servant of the sailors, but is the agent of 
McEiiery, 91 Pa. St. 185. the owners of the vessel ; and the owners 

The hardships which this rule has are responsible for injuries resulting to a 
brought about in cases where a large num- sailor tnrough the n<^ligenoe of the cap> 
b«r of |)er8onA are employed in dangerous tain. Ramsay v. Quinn, 8 Irish Rep. 
occupations, as railroad and other corpora- (C L.) 822, declining to follow Wilson 
tion employees, have caused very general v. Merry, 1 L. R. (1 Sc. App.) 326, which 
dissatisfaction, and in many States the did not recoffuize any grade of service, 
rule is entirely abrogated, either by the A common laborer and a section ''boss** 
decisions of the court or by express stat- on a railroad are not fellow-servants (Lou. 
ute. There is a general tendency in the & Nash. R. R. v. Blair, 1 Tenn. Ch. 351) ; 
American decisions to hold that one to nor such a laborer and a depot superinten- 
whom the master entrusts the whole super- dent (Lalor v. Ch., B., & Q. R. R., 52 UL 
vision of the employment, or possibly anj 401. Cf. Speed v. Atlantic, Ac R.B.C0., 
separate department of the employment, is 71 Mo. 303) ; nor the receiver of a railroad 
not a fellow-servant with other servants of and an employee of the road (Meara Adm. 
the same master, but is a substituted v. Holbrook, 20 Ohio St 137). This dis- 
master, and so renders the master Uable. tinction has been denied in Massachusetts. 
Crispin v. Babbitt, 81 N. Y. 516; Lake Albro v. Agawam Canal Co., 6 Cush. 75; 
Shore, &c. R. R. Co. v. Lavelley, 86 Ohio Zeigler «. Day, 123 Mass. 152. In a North 
St. 221 ; Heiner v. Heuvelman, 45 N. Y. Carolina case, it was held that a railroad 
Super. Ct. 88 ; Lake Superior Iron Co. v. com|iany is liable to an employee injured 
Enckson, 39 Mich. 492; uevanyo. Vulcan by the negligence of a superior fellow- 
Iron Works, 4 Mo. App. 286 ; Brabbets v, servant, whose directions he is bound to 
Chicago, &c. R. R. Co., 88 Wis. 289; Louis- obey. Cowles v. Richmond, fui. R.R. Co., 
villo, ftc. R. R. Co. V. Bkir, 1 Tenn. Ch. 84 N. C. 809. This is undoubtedly too 
351 ; Lalor v. Chicago, &c» R. R. Co., 52 111. broad a statement of the rule. 
401 ; Speed v. Atluitic, &c R. R. Co., 71 There has also been a limitation to the 
Mo. 303 ; Brothers v. Carter, 52 Mo. 873 ; rule established, that, if the two servants 
Meara v. Holbrook, 20 Ohio St 187. are employed in totally distinct depart- 

While, however, this general tendency ments of the emplovment^ they are not 
has been acknowledged in most of the fellow-servants in such a sense as to excul- 
United States, the various decisions of the pate the master (Ryan v. Chicsgo, &C.R.R. 
courts in which they have either stated Co., 60 IlL 171); ^. g. those who supplv 
the principles by which such cases of ** sub- machinery are not fellow-servants with 
stituted master" should be regulated, or those who use it (Ford v. Fitchburg R. R. 
have decided in particular instances wheth- Co., 110 Mass. 240; Flike o. Boston, Ac 
er a particular servant occupies such a R.R.C0., 53 N. Y. 549 ; Vantrain v. St 
relation to his master and to the other Louis, &c. Ry. (>>., 8 Mo. App. 538). Hat 
servants as to constitute him, with regard the decisions are very conflicting, and the 
U} them, the representative of the master, best ones seem to limit tiie cases where a 
ill such a way as to render the master liability is imposed on the master so 
liable for the negligence of such servants, strictly as to render the distinction of not 
if another servant is injured by it, show much value. Thus it has been held that 
the greatest vsriance, and make it impos- a laborer and engineman engaged together 
Kible in every case to say what the law of in the depot grounds (Chicago, &C.R.R. 
that case will be except by comparing the Co. v. Murphy, 53 111. 336), were fellow- 
various decisions of the State in which that servants. So of a milesman and general 
imrticular case arises. To follow out the traffic manager (Carney v. Belfast, £c. Ry. 
decisions on these points with such mi- Co., Ir. Law T. 217 (1875)) ; and a work- 
nutenesa would evidently be foreign to the man in the colliery and the manager (Har^ 

Slan of a work like this treatise on £vi- rell v, Landen Steel Co., 31 U T. N. a. 

ence. The genera] principle, so far as it 433) are. So are a road-master and a 

has taken any distinct form, has been de- laborer employed by him to work in re- 



PART IV.] CASE. 288 

miring the road (Lawlerv. Androsooggin McEnery, 91 Pa. St 186). The burden 

K. R. Co., 62 Me. 463) ; or a road-master of proving lack of ordinary care is on the 

and an engineer or a fireman (Walker «. plaintiff, as in all cases where negligence 

Boston, ft^. R. K. Co., 128 Mass. 8); and a is the nst of the action. Kranz v. White, 

telegraph o^ierator at a railroad statijn and sup, ; Porter v. Hannibal, &c. R.R. Co., 

an engineer ( Daua v. New York, Ac. R. R. sup. ; De Graff v. New York Central, &o. 

Co.. 23 Hun (N. Y.), 473) ; so a switch- R.R.Ca, 76 N. Y. 125 ; Crandall v. Mc- 

man and the engineer of a switch-engine llrtith, 24 Minn. 127 ; Nolan v. Schickle, 

(Chit-ago, &\ R. R. Ca v, Henry, 7 111. 8 Mo. App. 300. The master is also bound 

App. 322). Cf. Albro v. Agawam Canal Co., to notify the servant of any special danger 

6 Cush. 7o; Brown v. Maxwell, 6 Hill, 592; known to him, and not open to the obser- 

Coon V. Syrm:nae, ftc. R. R. Co., 6 Barb, vation of the servant as well. Smith v, 

231; Ryan v. Cumberknd,ftc. R R. Co., 23 Oxford Iron Co., 42 N. J. L. 467 ; Dow- 

Pa. 8t. 389 ; Hutchinson v, York, &c. Ry. ling v. Allen, 6 Mo. App. 195 ; Baxter 

Co.,5 W. H.&G.348; Wigmore v. Jay, Id. v. Roberts, 44 Cal. 187 ; Perry v. Marsh, 

854 ; Seymour v. Maddox, 16 Ad. & EL 25 Ala. 659 ; Williams v. Clough, 3 H. & 

K. 8. 326. And some cases go so far as N. 258 ; Murphy v, Pbillipr £x., 24 

to hold that all who serve the same master, W. R. 647. 

work under the same control, derive au- But the servant cannot recover damages 
thority and compensation from the same of his ma.ster for iiguries resulting from 
source, and are engaged in the same gen- the risks attendant upon the employment, 
eral busiuem, though it may be in different if he knows of their existence. Deforest 
grades and departments of it, are fellow- v. Jewett, 23 Hun (N. Y.), 490; Cowles v. 
servants, each taking the risk of the other's Richmond, &c. Ry. Co., 84 N. C. 309: 
negligence. Wonder «. B. & Oh. R. R. Chicago, Ac. R.R'Co. v. Abend, 7 111. App. 
Ca, 32 Md. 411 ; Hard t;. Vt kc R. R., 130; ^wden «. Idaho Quartz Mining Co., 
82 Vt 473. 55 Cal. 443 ; Kelley v. SUver Spring 
Another attempt (less legitimate than Bleaching Ca, 12 R. I. 112; Holmes v, 
the two former ones) Itas been made to Clark, 7 H. & N. 937 ; Coombs v, N. B. 
avoid the hardships of this rule, by submit- Cordage Co., 102 Mass. 572; Hayden v, 
ting the qnestion of whether the servants are Smithville Manuf. Co., 29 Conn. 548 ; Rose 
in a common employment to the jury. Hass v. B. & A. R. R. Co., 58 N. Y. 217. But 
V. Philadelphia S. S. Co., 88 Pa. St 269 ; if the servant notifies the master of a pro- 
Holton V. Daly, 4 111. App. 25 ; Devine «. bable danger against which the master in 
Tarrytown, &c. Gaslignt Co., 22 Hun good faith ought to provide, but neglects 
<K. v.), 26. so to do, and the servant, by request con- 
On some points, however, the liability tinning his services as before, is iigured, 
of the master for negligence, even towards he may recover. Hough v. Texas, &C.R.R. 
his servant, IB unquestioned; for instance, Co., 100 U. S. 213; Conroy v. Vulcan 
that the master must provide suitable ser- Iron Works, 6 Ma App. 102 ; Patterson 
vants, machinery, and materials, is nni- v. Pitts. & Conn. R. R. Ca, 76 Pa. St. 
▼ersally conceded. McMahon v. Henning, 1 389. See also, upon the general question 
KcCrary C. C. 516 ; Painton v. Northern of the liability of the master to his servant. 
Cent R. R. Ca, 88 N. Y. 7; Kain v. Smith, a valuable pai^er prepared by Judge Cooley, 
80 N. Y. 458 ; Holden v. Fitchburg R. R. with his usual accuracy ana fulness, which 
Co.y 129 Mass. 268 ; Stetler v. Chicago, ftc. contains this summary : " Perhaps this 
B. R. Ca, 49 Wis. 609 ; Fuller v, tfewett, whole subject may be summed up in a 
60 N. Y. 46 ; Brann v. Chicago, &c. R. R. single sentence as follows : The rule that 
Ca, 58 Iowa, 595; Fordv. Fitchburg R. R. the master is responsible to persons who 
Ca, 110 Mass. 241; Albro v. Agawam Canal are injured by the negligence of those in 
Co., 6 Gush. 75. (It has been held that his service is subject to this general ex- 
this does not include supplying the rooms ception, that he is not responsible to one 
In mills and lam buildings with fire- person in his employ for an injury occa- 
escapes. Keith v. Granite Mills, 126 Mass. sioned by the negligence of another in the 
90 ; Jones r. Same, 126 Mass. 84); though same service, unless generally or in respect 
it is held that reasonable diligence in selec- of the particular duty there resting upon 
tioD is all that is required (Little Rock, the negligent employee, the latter so far 
Ac. R. R. Co. V. Duffey, 35 Ark. 602; Chi- occupied the position of his principal as 
csgo, kc R. R. Co. V. Mahoney, 4 III. App. to render the principal chaigeable for his 
262; Cowles v. Richmond, Ac. R. R. Co., 84 negligence, as for a personal fault " Sonth- 
N. C. 909 ; Kranz v. White, 8 111. Ap^ em Law Review, vol. ii. M. a. No. 1, April, 
583. Cf. Porter V. Hannibal, Ac. R. R. Co., 1876. 
71 Mo. fie ; Mansfield Coal A Coke Co. «. 



284 LAW OP ETIDENCB. [PABT IV. 



COVENANT.! 

§ 288. No general lesae. In this action, by the common law, 
there is no general issue or 'plea, which amomits to a general 
traverse of the whole declaration, and of course obliges the plain- 
tiff to prove the whole ; ^ but the evidence is strictly confined to 
the particular issue raised by a special plea, such as non est fac- 
tum^ which will be treated under the head of Deed ; and Duress, 
Infancy, Release, Ac, which will be considered under those titles. 
The liability of an heir, on the covenant of his ancestor, will be 
treated under the head of Heir. 

§ 284. Non est faotom. If the deed is not put in issue by the 
plea of non est factum^ the defendant, by the rules of the common 
law, is understood to admit so much of the deed as is spread upon 
the record. If the plaintiff would avail himself of any other 
part of the deed, he must prove the instrument, by the attesting 
witnesses, or by secondary evidence in the usual way.' 

§ 285. Conditions preoedent. If the plaintiff's right of action 
depends on the performance of a condition precedent^ which is 
put in issue, he must prove a performance according to the terms 
of the covenant. It will not suffice, in an action on a specialty, 
to show that other terms have been substituted by parol, although 
the substituted agreement has been fully performed.^ Thus, 
where the plaintiff sued in covenant for the agreed price for 
building two houses, which he bound himself to finish by a cer- 
tain day, and averred performance in the terms of the covenant, 
proof of a parol enlargement of the time, and of performance 
accordingly, was held inadmissible.^ 

1 For a full and an elaborate diacossion of the doctrine of Covenants for Title, the 
student Lb referred to the recent work of Mr. Rawle, on that subject. 

* 1 Chitty on PL 428. In some of the United States, under statutes for the abolish- 
roent of special pleading, the plea of non est /actum has been adopted in practice, as 
being in effect a general traverse of the declaration. Granger v. Granger, 6 Ohio, 41 ; 
Provost V. Calder, 2 Wend. 617. 

> Williams v. Sills, 2 Campb. 619 ; ante, vol. i. §§ 669-682. 

* 1 Chitty on PI. 280 ; S T. R. 692. But if the original agreement was not under 
seal, evidence of a parol enlargement of the time, with performance acoordin^y, is 
admissible. AnUy vol. L § 804. 

« Littler v. HoUand, 8 T. R. 690. And see Maryon v. Carter, 4 C. & P. 295 ; Par- 
adine v, Jane, Aleyn, 26 ; Campbell v. Jones, 6 T. U. 571. 



PABT IV.] COVENANT.' 28S 

§ 236. Breach of oovenant The breaehj also, must be proved as 
laid in the declaration. And here it is a general principle, that 
where the party destroys that which was a subject of his agree- 
ment, or voluntarily puts it out of his power to perform that 
which he engaged to perform, it is a breach of his covenant.^ (a) 
Thus, if he covenant to deliver the grains, made in his brewery, 
and before delivery he renders them unfit for use by mixing hops 
with them;^ or, to deliver up a certain obligation of the cove- 
nantee, and before delivery he recovers judgment upon it;* or, 
to permit the covenantee to sue in his name, agreeing to assign 
to him the judgment when recovered, and before assignment he 
releases the judgment debtor;^ or, that certain goods of a debtor 
shall be forthcoming to the officer, and in the mean time he 
causes them to be seized on process in his own f avor,^ (6) — the 
covenant is broken. And in regard to covenants of indemnify 
this distinction has been taken, — that where the covenant is to 
indemnify against a liability already incurred, it is not broken till 
the covenantee is sued upon that liability ; but where the debt or 

1 Hopkins v. Young, 11 Mass. 802. But if the covenantor involuntaiily becomes 
nnable to perform, but the disability is removed before the day of performance anives, 
it ia no breach. Heard v. Bowers, 23 Pick. 455. Where the performance of a duty is 
Tendered impossible, by the act of God, if the duty was createa by the law alone, he is . 
excused ; but if the duty was created by his own contract, he is still answerable for the 
non -performance. See Piatt on Covenants, p. 582, and cases there cited. Beffina v. 
Joidices of Ijeicestershire, 15 Ad. & El. N. 8. 88. A covenant to keep in repair is broken 
if the lessee imll down the buildings ; but a cx)venant to leave the premises in repair is 
not, provided he rebuilds them within the term. Shep. Touchst. p. 173. 

> Gnffith V. Goodhand, T. Baym. 464. And see Mayne's Case, 5 Co. 21. 

• Teafs Case, Cro. El. 7. * Hopkins v. Youug, 11 Mass. 302. 

* Whitnum v. Slack, 1 Harringt. 144. The neglect of an officer to return an execu- 
tion, under which he has sold an equity of redemption, has been held a breach of the 
covenant in his deed of sale, that ne had obeyed all the requisitions of law in the 
proceeding. Wade v, Merwin, 11 Pick. 280. 

(/r) Greenwood v, Wilton Bailw., 28 Bogers v, Danforth, 1 Stockt. (N. J.) 289. 

K. H. 261. A covenanted to convey to B certain land, 

{b) When the covenant is in the al- " being the same land which was pur- 
temiitive, the covenantor has an election chased from government bv C & D, and 
which to perform, and if he does either, by said C &u sold to A.' It was held 
there is no breach. Stewart v. Bedell, 79 that parol evidence was inadmissible to 
Pa. St 836. It is sufficient proof of the show that the land intended to be em- 
breach of a covenant against incumbrances braced in the covenant was land conveyed 
if it is proved that there was an existing to A by C alone, or D alone, for the cove- 
inctimbnnce at the time the covenant was nant was not silent or ambiguous on that 
made. Chapman v. Kimball, 7 Neb. 399. subject. MarshaU v. Haney, 4 Md. 498. 
Where there was a covenant prohibiting A covenant for pa3rment of a sum certain, 
ihe erection of a forge or furnace for the although the duty does not accrue until 
maoiifactnringof iron, proof of the erection after notice given, cannot be discharged 
of buildings in which were forges for heat- by parol before breach. Spence v, Healey, 
log, moulding, and working iron was held 20 Eng. L. & Eq. 337. 
not to amoont to proof of a breach thereof 



286 LAW OF EVIDENCE* [PABT IT. 

duty may accrue in future, the covenant is broken whenever the 
liability to a suit arises.^ 

§ 287. Same sabjeot. It will be sufficient, as we have already 
seen,^ to prove the breach substantially as laid ; but it must also 
appear that the covenant is substantialltf broken. If the allega- 
tion is of a total loss or destruction, it will be supported by proof 
of a partial loss ; for it is the loss or damage, and not the extent 
of it, which is the substance of the allegation.' So, where the 
tenant covenanted to keep the trees in an orchard whole and 
undefaced, reasonable use and wear only excepted, the cutting 
down of trees past bearing was held to be no breach; for the 
preservation of the trees for fruit was the substance of the cove- 
nant.^ But where the breach assigned was, that the tenant had 
not used the farm in a husband-like manner, but, on the contrary, 
had committed waste, evidence of acts not amounting to waste 
was held inadmissible; for the waste was the substance of the 
allegation.^ 

§ 288. Notioe of breach. In regard to the averment of proof 
of notice to the defendant, a distinction is taken between things 
lying more properly in the knowledge of the plaintiff, and things 
lying in the knowledge of the defendant, or common to them 
both. In the former case, the plaintiff must aver and prove 
notice to the defendant. But where the party bound has the 
same means of ascertaining the event on which his duty arises, 
as the party to whom he is bound, neither notice nor request is 
necessary to be proved.* 

§ 239. Where defendant is aasignee. Where the defendant M 
%ued as -assignee of the original covenantor , and the issue is on the 
assignment, it will be sufficient for the plaintiff to give evidence 
of any facts from which the assignment may be inferred ; such 
as possession of the premises leased, or payment of rent to the 
plaintiffs For it is never necessary either to allege or prove the 

1 8 Com. Dig. 110, Ck)nditioii, I ; Lewis v. Crockett, 8 Bibb, 196. 
« Ante, vol. I §§ 56-74. • AnU, voL i, § 61. 

* 2 Stark. Ey. 248, cites Good v. Hill, 2 Esp. 690. 

« Harris v. Mantle, 3 T. R. 807. And see ante, vol. L § 52. 

• Chittv on Plead. 286 ; Keys o. Powell, 2 A. E. Marsh. 258 ; Peck v. McMortiT, 
Id. 858 ; Muldrow v. MoCleland, 1 Littell, 1. 

7 Williams v. Woodward, 2 Wend. 487 ; Id. 668 ; Derisleyv. Cnstanoe, 4 T. R. 75 ; 
Piatt on Coy. 64 ; Holford v. Hatch, Doug. 178 ; Hare v, Cator, Cowp. 766. On the 
liability of an assignee, see Piatt on Coy. 400-466. In the deciaiation against an 
assignee, the assignment is alleged as in the following precedent of a declaration by a 
lessor, against the assignee of his lessee, for non-payment of rent. 

" In a plea of covenant. For that whereas heretofore, to wit» on the day of ^ 



PART IV.] COVENANT. 287 

tiile of the adverse party with as much precision as in stating 
one's own. Yet if the plaintiff does allege the particulars of the 
defendant's title, he must prove them as laid.^ Under an issue 
on the assignment, the defendant may show that he holds as an 
nnder4enant, and not as an assignee ;^ or, that he is an assignee, 
not of all, but only of a part of the premises.' He may also show 
in defence, under a proper plea, that the covenant was broken, 
not by himself, but by anotiier person, to whom he had previ- 
ously assigned all his interest in the premises ; and in such case 
it is not necessary for him to prove either the assent of the as- 
signee, or notice to his own lessor of the assignment.^ It has 
been held, that where the lessee of a term of years assigns his 
interest by way of mortgage, the mortgagee is not liable to the 
landlord, as assignee, until he has entered upon the demised 
premises;^ but this doctrine has since been overruled, and the 
mortgagee held liable as assignee, before entry .^ But an executor 
IB not liable as assignee, without proof of an actual entry .^ 

lij a ontain indenture then made between the plaintiff of the one nart and one C. D. of 
the other part, one part whereof, sealed with the seal of the said C. D., the plaintiff 
now brings here into court, the plaintiff demised and leased to the said G. D. a certain 

messuage, lands, and premises ntuated in , to haye and to hold the same to the 

said C. D. and his assigns from the day of , for the fnll term of years 

tlien next ensnine ; yielding and paying th<»refor to the plaintiff the clear yearly rent 

of , payable [here deacnoe the mode and timea of paymeTtt], which rent the said C. 

D. did thereby for himself and his assigns covenant to pay to the plaintiff accordingly. 

By Tirtne of which demise, Uie said C. I), on the— — day of entered into the same 

premises, and was posarased thereof for the term aforesaid. (*) And after the making 

of said indenture, and during the term aforesaid, to wit, on the day of 

[naming any day before the brwdi>\ all the estate and interest of the said C. D. in said 
term, then unexpired, by an assignment thereof then made, came to and was vested in 
the defendant, who thereupon entered into the said demised premises and became pos- 
sessed thereof, and continued so possessed from thence hitherto [or * until the — — day 

of 'i Now, the plaintiff in fact says, that after the making of said Assignment, 

•nd during the said term, and before the commencement of this suit, to wit, on the — - 
d^y of , the sum of — of the rent aforesaid became due and was owing to the 
plaintiff from the said defendant, and stiU is in arrear and unpaid, oontraiy to the 
eovenant aforesaid." 

1 Stephen on Pleading, pp. 887, 888 ; Turner v. Eyles, 8 B. & P. 456, 461 ; 2 PhiL 
Ev. 151 (7th ed.) ; ante, voL i. § 60. 

s Holford V. Hatch, 1 Doug. 182 ; Earl of Derby «. Taylor, 1 East, 502. 

* Hare v. Cator, Cowp. 766. 

* Pitcher v, Tovey, 1 Salk. 81 ; Taylor v. Shum, 1 B. & P. 21. 

* Eaton V. Jaques, 2 Doug. 455. It is still held, that the mortgagee of a ship is not 
liable as owner, until he takes possession. Brooks v. Bondsey, 17 Pick. 441 ; Colson 
w. Bonzey, 6 Greenl. 474 ; Abbott on Shipping, p. 19 ; Briggs v. Wilkinson, 7 B. ac 
C. 80 

* Williams v. Boeanquet, 1 B. & Bing. 288 ; 4 Kent, Oomm. 145 ; Woodfall's Law 
of LandL & Ten. p. 188 (5th ed. W Wollaston). Sedqwere; and see Astor «. Hoyt, 
6 Wend. 608 ; Astor v. Miller, 2 Paige, 68 ; Bourdillon v. Dalton, 1 Esi>. 284 ; Cook 
m. Harris, 1 Ld. Raym. 867; Co. Lit. 46 b; Rex v. St. Michaels, 2 Doug. 680, 682 ; 
Blan^ «. Bearce, 2 Greenl. 182 ; Mclver v. Humble, 16 East, 199. 

7 Buckley v. Pirk, 1 Salk. 816 ; Jevans «. Harridge, 1 Saund. 1 n. (1), by Williams. 



288 LAW OP EVIDENCB. [PABT IT. 

§ 240. Where plaintiff is assignee. But where ihe plaintiff elaimB 
as a89igneej he must precisely allege and prove the conveyances, 
or other mediums of title, by which he is authorized to sue.^ If 
he claims as assignee of a covenant real, he must show him- 
self grantee of the land, by a regular legal conveyance, from a 
person having capacity to convey.^ And in regard to covenants 
realj on which any grantee of the land may sue the grantor in 
his own name, or may be sued, it- may not be improper here 
to observe, (1) thst they are always such as have real estate 
for their subject-matter ; and (2) that they run with the land, 
that is, that they accompany the lawful seisin, and are prospective 
in their operation. If there is no seisin, the covenant remains 
merely personal.^ The object of these covenants is threefold: 
(1.) To preserve the inheritance ; such as covenants to keep in 
repair ; * and